author: STORCKMAN, Chief Justice.

text:
    STATE ex rel. Barbara Marie HOF, an Infant, by Walter W. Hof, Next Friend, and Walter W. Hof, Relators, v. Honorable George W. CLOYD, Judge of the Circuit Court of St. Louis County, Missouri, Respondent.
    No. 51119.
    Supreme Court of Missouri, En Banc.
    Sept. 13, 1965.
    Rehearing Denied Oct. 11, 1965.

      Gerritzen & Gerritzen, by Ray A. Gerrit-zen, St. Louis, for relators-plaintiffs.
    Heneghan, Roberts & Cole, and George E. Heneghan, St. Louis, for respondent.
   STORCKMAN, Chief Justice.

This is an original proceedings in this court to prohibit the respondent circuit judge from enforcing an order requiring the plaintiffs, the relators herein, to answer certain interrogatories propounded by the defendants in a personal injury suit. This court issued its preliminary rule in prohibition to which the respondent filed a return and the relators filed their reply. In. due course, the parties filed their briefs and the case was argued orally and submitted.

In the personal injury action, Barbara Marie Hof, nine years of age, seeks to recover $120,000 for injuries alleged to have been sustained by being bitten in and about the face and nose by a large Rottweiler dog named Fritzie owned by the defendants, Ray E. Dilschneider and his wife Joan Dil-schneider. Walter W. Hof, father of Barbara, in addition to serving as next friend, sought in a separate count to recover $5,-000 for medical and hospital expenses. Among other allegations, the petition stated that the defendants knew or in the exercise of ordinary care could and should have known that, prior to the time Barbara was bitten, the dog Fritzie had attacked and bitten other persons without provocation, one of whom was a child member of the immediate family of the defendants; that Fritzie possessed vicious and mischievous propensities and in spite thereof the defendants permitted the dog, weighing in excess of 120 pounds, to be in the yard where Barbara was bitten under the sole restraint of a leash held by the defendants’ nine-year-old daughter; and that the defendants permitted the dog to bite Barbara although they knew or should have known beforehand that Fritzie possessed vicious and mischievous propensities and a definite tendency to attack, bite and injure persons whether in play or in anger all without cause or provocation.

Insofar as pertinent to the interrogatories in this case, the second paragraph of Civil Rule 56.04(a), V.A.M.R., provides that: “Interrogatories may relate to any matters which can be inquired into under Rule 57, and the answers may be used to the same extent as provided in Rule 57 for the use of the deposition of a party.”

Pertinent portions of Civil Rule 57.01(b) relating to the scope of depositional examination provide that: “the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, * * *, including * * * the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.”

The relators rely chiefly upon the cases of State ex rel. Kroger Company v. Craig, Mo.App., 329 S.W.2d 804, and State ex rel. Kramer v. Carroll, Mo.App., 309 S.W.2d 654. Both of these cases were decided prior to April 1, 1960, when Rules 56.01 and 57.01 in their present form became effective. The respondent cites State ex rel. Pete Rhodes Supply Co. v. Crain, Mo., 373 S.W.2d 38, and State ex rel. Hudson v. Ginn, Mo., 374 S.W.2d 34, which construe the rules in their present form.

Three interrogatories, numbered 1, 6 and 7, are involved in this case. Interrogatory No. 1 reads: “State the names and addresses of all persons known to- have relevant- knowledge of any facts pertaining to the occurrence alleged in plaintiffs’ petition filed herein.” The relators assert- this interrogatory is objectionable, among other reasons, because the answer “calls upon plaintiffs to make a determination and engage in opinions as to what facts are relevant and what constitutes knowledge.”

Interrogatory No. 1 uses terms similar to the language m Rule 57.01, such as “relevant to the subject matter” and “knowledge of relevant facts”, but following the language of the rule does not render the question proper. Relevancy is to be determined by the court as a matter of law when a factual- question is asked and an objection is made. Interrogation is restricted to factual matters. The question would have been objectionable if asked at the taking of a deposition and has no better standing when propounded as an interrogatory. It calls for a conclusion and determination by the party as to what is relevant knowledge or relevant facts. Furthermore, the interrogatory is vague and uncertain. It refers to the “occurrence” when several occurrences are mentioned in the petition. The party interrogated should not be called on to speculate as to what is intended by the question. Since the interrogatory calls for an opinion or conclusion of law and is too general, indefinite, and uncertain, it is fatally defective under the rule applied in State ex rel. Transit Casualty Company v. McMillian, Mo., 349 S.W.2d 210. It is not necessary to consider the other grounds of obj ection to this interrogatory.

Interrogatory No. 6 is in three parts and calls for information concerning (a) persons known to have been attacked, bitten or injured by the dog prior to the injury to Barbara Marie Hof, (b) persons known to have witnessed such prior attacks, and (c) whether such prior attacks were reported to the owners of the dog and, if so, by whom and when. In substance, the relators object to this interrogatory on- the grounds that it calls for hearsay, compels the plaintiffs- “to go to work” for the defendants, and is “a mere fishing expedition”.

The objections to interrogatory No. 6 are not well taken. Under the rules of discovery as they presently exist, the hearsay objection is not valid “if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.” Further, if the information sought is a factual matter within the knowledge of the party interrogated or his attorney, it is not protected from discovery because the information was developed as the result of the party’s investigation. In view of the allegations of the petition, the information sought by this interrogatory appears to be relevant and is sufficiently definite and certain that it cannot be said to be “a mere fishing expedition”. The propriety of interrogatory No. 6 is supported by the cases of State ex rel. Pete Rhodes Supply Co. v. Crain, Mo., 373 S.W.2d 38, 44 [2,3]; State ex rel. Hudson v. Ginn, Mo., 374 S.W.2d 34, 38-39 [3]; Mitchell v. Newsom, Mo.App., 360 S.W.2d 247, 249 [2]; and Bush v. Anderson, Mo.App., 360 S.W.2d 251, 256 [11].

Interrogatory No. 7 is in four parts and is based on the allegation of the petition that the dog “had and possessed vicious and mischievous propensities”. It seeks (a) the “dates, times and places of all instances of such propensities occurring prior to July 28, 1963”, (b) the names and addresses of “persons witnessing any such instances of such propensities”, (c) whether “any sueh instances of such propensities” were reported to the owners of the dog, and (d) the names and addresses of persons who reported “any such instances of such propensities” to the owners of the dog, the date of the report, the person to whom such report was made, and the method by which any such report was made.

A propensity is defined as “a natural inclination: innate or inherent tendency”. Webster’s Third New International Dictionary. The allegation that the dog had vicious and mischievous propensities is a conclusion of the pleader based on the averments that the dog had previously attacked, bitten and injured otheF persons. Interrogatory No. 7 is redundant in view of the information sought- under interrogatory No. 6 and to which we have held the defendants were entitled. Furthermore, asking for “instances of such propensities-” is confusing in view of the definition which indicates a settled and continuing trait or tendency. Such a question is likely to put a witness in a quandary as to what is intended. If the interrogator had in mind something in addition to what was sought in interrogatory No. 6, he should say so definitely and certainly. Interrogatory No. 7 is not within the letter or spirit of the discovery rules and need not be answered in its present form.

The provisions for discovery by written interrogatories are liberal but they are not unlimited. The supreme court rules are quite clear and they have been further construed and defined by decisions of the appellate courts of this state. Nevertheless, this court continues to receive an inordinate and apparently unnecessary number of applications to regulate the use of interrogatories. Attorneys experienced in the taking of depositions or the oral examination of witnesses at a trial should have no difficulty in formulating or recognizing proper written interrogatories. Such interrogatories should call for specific relevant facts and not be repetitious. They should not call for opinions or the conclusions of the person interrogated or require him to resort to speculation or conjecture as to what is intended. Whether questions are proper in form and substance is for the determination of the trial court; and the court should keep in mind that if an objection is sustained the interrogator has the right to reframe and resubmit the question in proper form or to propound additional ones. “The number of interrogatories or of sets of interrogatories to be served is not limited except as justice requires to protect the party from annoyance, undue expense, embarrassment, or oppression. The provisions of Rule 57.01(c) are applicable for the protection of the party from whom answers to interrogatories are sought under this rule.” Civil Rule 56.01(a), V.A.M.R.

The preliminary rule in prohibition is made permanent as to interrogatories 1 and 7 and is quashed as to interrogatory No. 6.

All concur and STONE, Special judge, concurs.

DONNELLY, J., not participating because not a member of the court when the cause was submitted.


source: Caselaw Access Project

author: FINCH, Judge. PER CURIAM.

license: Public Domain

text:
    Gerald Dee HALEY, Plaintiff-Respondent, v. BYERS TRANSPORTATION COMPANY, Inc., and Kenneth G. Deem, Defendants-Appellants.
    No. 50919.
    Supreme Court of Missouri, Division No. 2.
    Sept. 13, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 11, 1965.

      Thaine Q. Blumer, Blumer & Wright, Kansas City, for plaintiff-respondent.
    Jack G. Beamer, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, Edward J. Houlehan, Houlehan & Waterman, Kansas City, for defendants-appellants.
   FINCH, Judge.

Defendants appeal from a judgment for plaintiff for $20,000.00. Jurisdiction of this court is conferred by the amount involved.

This case arises out of a collision which occurred on February 24, 1961, at about 1:00 A.M., on U„S. Highway 40 at á point about three and one-half miles east of the city limits of Odessa, Missouri. At that point the highway was approximately 24 feet wide and carried both east and westbound traffic. The Hillcrest Service Station and Cafe was located on the south side of the highway and was on the crest of a hill. The easternmost driveway into .the Hillcrest Station was approximately 300 feet east of the crest of the hill.

Shortly before the collision occurred, a tractor-trailer unit of Southwest Freight Lines, driven by one Barnett, was headed west on Highway 40. As he came up the hill toward Hillcrest, he reduced his speed and signalled with his turn indicator to show an intention to turn into the Hillcrest Station. When 35 to 40 feet from the driveway, he -started to cross the center line and continued to turn into the easternmost driveway of Hillcrest Service Station. Meanwhile, the tractor-trailer unit of Byers Transportation Company, Inc., driven by defendant Deem, was following the Southwest Freight Lines truck, traveling at least 300 feet to the rear, according to both Deem and Barnett.

Plaintiff Haley, driving a Dodge automobile, was traveling east on Highway 40 in the south lane of the highway. He came over the crest of the hill as the Southwest Freight unit was going onto the Hillcrest driveway. His car collided with the right rear dual wheels of the Southwest Freight trailer, shearing away the right front wheel, fender and grille of defendant Haley’s automobile and doing some damage to the trailer. This impact, according to marks and debris, apparently occurred near the east edge of the easternmost driveway into Hillcrest The Haley car then slid sideways on down the highway, apparently partly in the north lane and partly in the south lane of the -highway. A collision occurred with the Byers tractor-trailer -unit, the left front wheel of the Byers tractor colliding with the left side of the Haley car.

Plaintiff was badly injured and was a paraplegic as a result of the accident. He testified he had no memory of the occurrence. There was testimony as to the speed of the plaintiff’s car and of the trucks as they came up the hill approaching the Hill-crest Service Station, as to marks and debris on the highway, as to the position of the vehicles after the collision, and as to stopping distances, but it is not necessary to detail these in -view of the disposition we make of this appeal.

Plaintiff Haley originally brought suit against Southwest Freight Lines and Byers Transportation Company, Inc. After trial of that suit was commenced, a settlement was made with Southwest for $80,-000.00 and plaintiff dismissed her suit against Byers without prejudice. Subsequently, plaintiff filed a new suit against Byers Transportation Company, Inc., and Kenneth G. Deem, its driver, and this is the case in which the present appeal was taken. In this latter suit plaintiff sought to recover on both primary negligence (driving closer than 300 feet in violation of § 304.044, RSMo 1959, V.A.M.S., and a failure to slow) and on the humanitarian doctrine. Defendant Deem sought to recover on a counterclaim for personal injuries.

The measure of damage instruction tendered by plaintiff and given by the court as Instruction No. 9 was as follows:

“If you find in favor of the plaintiff on his petition, then you must award him such sum as you believe will fairly and justly compensate him for such damages as you believe plaintiff sustained in the past and is reasonably certain to sustain in the future as a direct result of the negligence, if any, of the defendants.
“In arriving at the amount of your verdict, -you may take into consideration the following:
“First, the nature and extent of the bodily injuries:
“In this regard you may consider:
(a) The duration of the injuries;
(b) The physical pain and mental anguish suffered by plaintiff in the past and which plaintiff is reasonably certain to suffer in the future;
(c) Plaintiff’s disability; and
“Second, the loss of earnings plaintiff has sustained in the past; and
“Third, the impairment of plaintiff’s capacity to work and labor in the future, which plaintiff is reasonably certain to sustain.
“After you have determined such sum, you must deduct $80,000 which Southwest Freight Lines has paid plaintiff. In the event such payment is equal to or exceeds the amount of plaintiff’s injuries and damage, then your verdict must be for defendants.”

After the jury had deliberated for approximately five hours, it announced that it had reached a verdict. That verdict was as follows:

“We, the jury, find the issues in favor of the plaintiff and against the defendants on plaintiff’s petition and do assess plaintiff’s damages at the sum of zero dollars, and we further find the issues in favor of the plaintiff and against the defendant Deem on defendant Deem’s counterclaim.” This verdict was signed by nine jurors.

Following the reading of the verdict, the court asked the jury if this was their verdict, and they replied that it was. Plaintiff’s counsel then advised the court that in his opinion this was “not a legal verdict,” and the court, over the objections of defendants, sent the "jury back to reconsider its verdict, with this admonition i

“Ladies and gentlemen, a question has been raised here, and I think properly, that you should read Instruction No. 9 again in regard to your verdict as to the form of the verdict, so 1 suggest you go back and consider the Instruction No. 9 in regard to this case, and all of the instructions, of course, you are to consider. I must send you back, I’m sorry.”

After the jury had deliberated for an additional period, the jury again advised it had reached a verdict, which was as fol-Iowsj

“We, the jury, find the issues in favor of the plaintiff and against the defendants on plaintiff’s petition and do assess plaintiff’s damages at the sum of $20,000.00, and we further find the issues in favor of the plaintiff and against the defendant Deem on defendant Deem’s counterclaim.” This verdict was signed by the nine jurors who had signed the -first verdict, plus one additional juror.

Judgment for $20,000.00 in favor of plaintiff was entered on this second verdict.

Defendants did not file motions for a new trial. They filed a ‘joint motion asking the court, to set aside its judgment and enter judgment in accordance with the first jury verdict which was for zero damages or, in the alternative, to enter judgment in accordance with defendants’ motions for directed verdict.

What, then, of the verdict first returned by the jury wherein it found the issues in favor of plaintiff and assessed his damages at zero dollars?

It is clear that in a suit for damages for personal injuries the jury is to render a general verdict, and where the verdict is for the plaintiff, the jury is to assess the amount of the recovery. Rules 71.02 and 71.06, V.A.M.R., and §§ 510.230 and 510.270, RSMo 1959, V.A.M.S. It also is well established that in such a case if the jury returns a verdict which is not a general verdict, or which finds for plaintiff but fails to assess the amount of recovery, or which is necessarily defective in some particular, the trial court may refuse to accept the verdict and may direct the jury to retire and correct its verdict or find a new one. Thorne v. Thorne, Mo., 350 S.W.2d 754, 757, and cases therein collected and cited. At the same time, the courts will construe a verdict liberally to ascertain the jury’s intent, even if inartfully expressed. Thorne v. Thorne, supra. If such intention is ascertainable, and the verdict includes findings on the issues required, it Is a proper verdict and judgment should be entered thereon. Under such circumstances it would be error for the trial court to refuse to accept the verdict.

It is the position of respondent that the verdict finding the issues for plaintiff and assessing his damages at zero dollars is inconsistent and self-contradictory. The recent decision of the Springfield, Court of Appeals in the case of Boone v. Richardson, Mo.App., 388 S.W.2d 68, is cited in support of that position. In that case the plaintiff sought recovery for personal injuries. The jury’s verdict found the issues for plaintiff and assessed her damages “at the sum of $ 0.” The Court of Appeals held this verdict inconsistent and self-contradictory and remanded the case for a new trial. There are two lines of authority in cases such as the Boone case wherein recovery for an unliquidated amount is sought. The Federal Courts and some state jurisdictions treat such a verdict as in effect a verdict for the defendant and enter judgment accordingly. Association of Western Railways v. Riss and Co., 112 U.S.App.D.C. 49, 299 F.2d 133; Royal Indemnity Co. v. Island Lake Township, 177 Minn. 408, 225 N.W. 291. Others reach the same result as that in the case of Boone v. Richardson, supra. This court has never ruled on that precise question and is not called upon to do so in this case, for the factual situations are not the same. In the Boone case there had been no payment of any kind to plaintiff by any actual or prospective defendant which would apply against whatever damages were suffered. If plaintiff was injured as a result of defendant’s negligence she was entitled to recover therefor from defendant if, as the jury seemed to find, defendant was guilty of such negligence. If plaintiff was not injured then one of the three essential elements was missing and there was no actionable negligence and there should have been a verdict for defendant. Schaefer v. Accardi, Mo., 315 S.W.2d 230 [6]; Biscoe v. Kowalski, Mo., 290 S.W.2d 133 [5]. Under such circumstances the Court of Appeals stated that it could not resolve the verdict as a definite finding for either party and that the case should be retried.

In this case the plaintiff already had been paid the sum of $80,000.00 by Southwest Freight Lines. A plaintiff is entitled to only one satisfaction for injuries received and accordingly the jury was instructed to credit against or deduct from plaintiff’s total damages as determined by them the sum of $80,000.00. Plaintiff, therefore, was entitled to a verdict in such amount as his total damages exceeded the sum of $80,000.00.

The first verdict returned recited that the jury found the issues for plaintiff and against both defendants. This indicated that the jury found that defendants Byers and Deem were guilty of negligence and that such negligence directly caused or contributed with conduct of Southwest Freight Lines to cause injury to plaintiff. It may be noted that in the same verdict the jury found the issues for plaintiff and against defendant Deem on his counterclaim, further evidencing the fact that the jury considered and decided the issue of actionable negligence. Having made this factual determination, it then became the duty of the jury to assess plaintiff’s damages. Unlike the Boone case, however, the jury was not told to fix those damages as the total injuries found to have been caused by these defendants. Instead, they were instructed to determine the total amount of plaintiff’s damages and then deduct the sum of $80,-000.00. In their verdict the jury wrote that they assessed plaintiff’s damages recoverable in this suit at zero dollars. Does that make the verdict inconsistent and self-contradictory? We do not think so. If we are to conclude that the verdict is inconsistent, we must assume that the jury failed to perform its task of considering and determining the amount of damages recoverable against defendants herein. We must ignore the possibility that the jury concluded that these defendants were negligent, .that their negligence caused or contributed -with conduct of Southwest Freight Lines to cause injury to plaintiff, ■ and that plaintiff’s total damages therefrom amounted to $80,000.00 or less. To assume or conclude under these circumstances that the jury failed to perform its duty and failed to make the necessary finding of fact as to damages is not justified. It is just as logical to assume that they did consider the extent of plaintiff’s' injuries and damages and concluded that the amount did not exceed the sum already paid. When we construe the verdict liberally in order to ascertain the jury’s intent, as we are required to do, we must conclude that the jury performed its function and passed on the issue of damages. There is no inconsistency which dictates otherwise.

It is true that the jury did not do as instructed in the last sentence and, having found that the amount already paid either equalled or exceeded the amount of plaintiff’s damages, did not convert that to a verdict for the defendants. That is not sufficient to make the verdict bad. The jury made the necessary factual determinations with respect to actionable negligence and amount of damages. There were no other factual issues to determine. If the net effect of these findings was that a judgment should be entered in favor of defendants, that was a matter of law. The failure of the jury to so recite in its verdict was not such a deficiency as to vitiate the verdict or make it inconsistent. That can be cared for in the entry of judgment on the verdict.

The judgment on plaintiff’s petition is reversed and the cause remanded with directions to enter judgment for defendants on plaintiff’s petition in accordance with this opinion.

All of the Judges concur.

On Motion ior Rehearing

PER CURIAM.

On motion for rehearing plaintiff complains that the opinion of the court overlooked the assessment of court costs. In the interest of clarity we do so herein, even though the entry of judgment for defendants on plaintiff’s petition which was directed necessarily implied that defendants should have their costs thereon. Such a result is dictated by § 514.110, RSMo 1959, V.A.M.S., which provides that “if the plaintiff recover any damages he shall recover his costs.” It follows that plaintiff shall not recover costs when judgment goes against him and he recovers nothing. Plaintiff suggests the possibility of entry of judgment in favor of plaintiff for zero dollars. Presumably this is for the purpose of taxing court costs in favor of plaintiff. Under the statute plaintiff, not having recovered any damages, cannot have his costs. As the opinion indicates, the jury finding herein amounted to a verdict for the defendant and that is the judgment to be entered.

Defendant Deem asserted a counterclaim and the jury found in favor of plaintiff and against Deem thereon. Costs in connection therewith are to be assessed against defendant Deem.

The trial court can allocate the costs in accordance with this opinion.

Our original opinion is modified as herein set out. The plaintiff’s motion for a rehearing of to transfer to the court en banc is overruled.


author: STONE, Judge.

text:
    The TRAVELERS INDEMNITY COMPANY, a corporation, Plaintiff-Appellant, v. Forest Oakley CHUMBLEY and Elizabeth L. Losinsky, Defendants-Respondents.
    No. 8416.
    Springfield Court of Appeals. Missouri.
    July 21, 1965.
    Motions for Rehearing or to Transfer Denied Aug. 18, 1965.
    Application for Transfer Denied by Supreme Court Oct. 11, 1965.

      Mann, Walter, Powell, Burkart & Weathers, Robert W. Schroff, Springfield, for plaintiff-appellant.
    Meredith B. Turner, Stewart, Reid & Turner, Springfield, for defendant-respondent, Forest Oakley Chumbley.
    Allen, Woolsey & Fisher, Stephen L. Hill, Springfield, for defendant-respondent, Elizabeth L. Losinsky.
   STONE, Judge.

In this action to recover on a sub-rogation claim for $500, plaintiff, The Travelers Indemnity Company (hereinafter sometimes referred to as Travelers), appeals from the order of the circuit court sustaining the separate motions of defendants, Forest Oakley Chumbley and Elizabeth L. Losinsky, to dismiss plaintiff’s first amended petition for “failure to state a claim upon which relief can be granted.” Rule 55.33; Sec. 509.300. Since the order did not specify otherwise, the dismissal was with prejudice and operated as an adjudication upon the merits. Rule 67.03; Sec. 510.150; Clark v. City of Humansville, Mo.App., 348 S.W.2d 369, 370(1). Of course, the motions to dismiss admitted, for the purposes of the motions, the truth of all facts well pleaded therein and any inferences fairly deducible therefrom; and, on this appeal, we broadly construe the petition most favorably to plaintiff, giving it the benefit of every reasonable and fair intendment in view of the facts alleged.

From plaintiff’s first amended petition and the exhibits attached thereto, which are a part thereof for all purposes, the material facts are substantially as hereinafter detailed. Plaintiff Travelers issued to defendant Chumbley of Springfield, Missouri, its policy of insurance No. AP9044307 (hereinafter referred to as the policy) providing, inter alia, coverage for “medical payments” within the stated limit of $500 for each person, which said policy was in effect on August 20, 1960, when defendant Chumbley was struck and injured by a 1959 Pontiac automobile owned by defendant Lo-sinsky. Left unattended at the curb on College Street, a heavily-traveled thoroughfare in Springfield, the Losinsky automobile was rolling into the pathway of oncoming traffic when Chumbley, while undertaking to stop the rolling automobile, was struck by it and .thereby suffered a crushing blow to his right leg which resulted "in amputation at the knee. In treatment of his injuries sustained in that accident, Chumbley incurred medical, surgical and hospital expenses in excess of $500; and, pursuant to his claim under the medical payments coverage afforded by the policy, Travelers paid $500 to him. Thereafter, by letter dated November 15, 1960, Travelers advised Los-insky that “we were called upon to pay under our medical payments coverage” and that “as we have the right of subrogation under our policy for all amounts which we were -called upon to pay .up to our policy limits, this letter is merely sent to notify you of that subrogation interest.” Neither the policy limit for medical payments nor the amount paid under that coverage was stated in Travelers’ letter. On December 2, 1960, Chumbley (as plaintiff) instituted a suit for damages in the Circuit Court of Greene County, Missouri, against Losinsky (as defendant), which said suit subsequently was removed to the United States District Court and, on a date not disclosed in the transcript, was dismissed with prejudice by Chumbley pursuant to stipulation.

Travelers averred in its first amended petition that defendants Chumbley and Lo-sinsky “entered into a settlement agreement . . . to settle all claims” that Chumbley “has or may have” against Losinsky; that, in negotiating and consummating such settlement, the parties thereto did not notify Travele’rs but “ignored the [subrogation] rights of plaintiff [Travelers] which rights plaintiff held as the assignee of Forest Oakley Chumbley” and of which “rights” both Chumbley and Losinsky had prior knowledge ; and that such “subrogation right was given to plaintiff by Forest Oakley Chum-bley” by virtue of paragraph 15 of-the policy “conditions” appearing on page 18 of the 20-page policy and reading as follows:

“15. Subrogation. In the event of any payment under-this policy, the company shall be subrogated to all -the insured’s rights of recovery therefor against any person or organization .and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights.”

The Travelers asserted that it was entitled to recover $500 from defendants Chumbley and Losinsky, “individually or jointly” (in paragragh 12 of the petition) or “individually and jointly” (in the prayer). (All emphasis herein is ours.)

The sole point in plaintiffs brief is that its first amended petition did state a claim for relief upon which it was entitled to recover, “in that medical expense is an item of special damage, is readily ascertainable as to nature, extent and amount, is recoverable separate and apart from a bodily claim, is recoverable even though bodily injury was not sustained, and is recoverable by one other than the person for whom medical treatment was provided.” Obviously, the quoted point was framed to anticipate and deal with defendant Losinsky’s contention (as stated in her answering brief) that the trial court did not err “because to allow plaintiff to maintain a cause of action against defendant Losinsky would allow the assignment of an unliquidated claim for personal injury, and would allow the plaintiff to split a cause of action in allowing a separate and distinct claim to be made for medical expenses, and would allow the splitting of the claim for medical expenses into two parts.” ^Defendant Chumbley’s position is that, regardless of all else, the first amended petition stated no cause of action against him because defendant Losinsky had knowledge of plaintiff’s alleged “subrogation right” prior to settlement of Chumbley’s claim against Losinsky and, therefore, “whatever rights plaintiff had against defendant Losinsky prior to the settlement, plaintiff still has.”

The appeal as to defendant Chum-bley is “a short horse soon curried.” Gur Missouri courts have held, in accordance with the overwhelming weight of authority in other jurisdictions, that: “ . ° . if a third party tort-feasor, with knowledge of an insurer’s right of action as subrogee, and without the consent of the insurer, settles with the insured, the insurer’s right to proceed against such tort-feasor is not affected. In such case, the primary wrongdoer, and not the insured, should repay the insurer. Hamilton Fire Insurance Company v. Greger, 246 N.Y. 162, 158 N.E. 60 [62], 55 A.L.R. 921, 925.” Farm Bureau Mutual Insurance Co. v. Anderson, Mo.App., 360 S.W.2d 314, 320(7). Paragraph 15 of the policy obligated Chumbley to “do nothing after loss- to prejudice such [subrogation] rights” as Travelers had. We agree with Chumbley that he did not violate this obligation when, after notice to tortfeasor Lo-sinsky of Travelers’ alleged right of sub-rogation, Chumbley (in the language of plaintiff Travelers’ first amended petition) “entered into a settlement agreement . . . to settle all claims” that he “has or may have” against Losinsky. In these circumstances, (as Chumbley’s counsel put it) “whatever rights plaintiff had against defendant Losinsky prior to the settlement, plaintiff still has.” Plaintiff’s first amended petition stated no cause of action as to defendant Chumbley and properly was dismissed as to him.

On the appeal as to defendant Losinsky, plaintiff Travelers argues that “medical expense is a special damage, is separate and apart from a bodily injury claim, and the right to recover such special damage is assignable and subject to the principles of subrogation.” So, plaintiff says that “medical expense stands on the same footing as property damage” and that, on the authority of General Exchange Insurance Corp. v. Young, 357 Mo. 1099, 212 S.W.2d 396, recovery should be allowed on the subrogation claim under consideration.

It is true that medical and hospital expenses [Heibel v. Robison, Mo.App., 316 S.W.2d 238, 243(5)], as well as loss of earnings and diminished capacity to work [Fleddermann v. St. Louis Transit Co., 134 Mo.App. 199, 206, 113 S.W. 1143, 1145(6)], are regarded as special damages, i. e., damages which are the natural but not the necessary and inevitable result of the wrongful act and injury of which complaint is made [Devine v. Kroger Grocery & Baking Co., 349 Mo. 621, 635, 162 S.W.2d 813, 819; Weller v. Hayes Truck Lines, 355 Mo. 695, 705, 197 S.W.2d 657, 663(12); Boehm v. St. Louis Public Service Co., Mo., 368 S.W.2d 361, 368], as distinguished from general damages, which the law imputes as the natural, necessary and logical consequence of such wrongful act and injury. Johnson v. Flex-O-Lite Manufacturing Corp., Mo., 314 S.W.2d 75, 84(11); Hildreth v. Key, Mo.App., 341 S.W.2d 601, 614. However, as the cited cases demonstrate, this distinction between general and special damages usually is noted and becomes relevant in connection with the determination of issues as to what items of damage must be pleaded and as to what evidence concerning damages is admissible under the pleadings. Damages, both general and special, constitute but a single element, albeit a necessary one, of a tort. And torts are divided into two general classes, namely, “property-torts” which involve injury or damage to property, whether realty or personalty, and “personal torts” which involve injuries to the person, whether to the body, reputation or feelings.

The policy obligation imposed upon Travelers- by “Coverage B — Medical Payments,” which Travelers discharged by payment of $500 (the stated limit of liability) to Chumbley, was “to pay all reasonable expenses incurred within one year from the date of accident for neeessary medical, surgical, X-ray and dental services . . . and necessary ambulance, hospital, professional nursing and funeral services . . . to or for the named insured and each relative who sustains bodily injury, caused by accident, while occupying or through being struck by an automobile o . ..” In its first amended petition, Travelers averred “that as a direct and proximate result of the aforementioned negligence and carelessness of Elizabeth L. Losinsky bodily injury was sustained by Forest Oakley Chumbley which injury required medical treatment and that extensive medical treatment was rendered to Forest Oakley Chumbley who thereby incurred reasonable medical expense for care and treatment of said injury in a sum in excess of $500.” Clearly, Chumbley’s medical expenses were special damages which flowed from, and were an integral element of, a personal tort; and his cause of action for personal injury embraced, and constituted the basis for, his recovery of such damages arising out of tortious injury to his body.

Plaintiff Travelers relies upon conventional subrogation, i. e., upon subrogation by virtue of contract [Aetna Casualty & Surety Co. v. Lihdell Trust Co., Mo.App., 348 S.W.2d 558, 571(15); 83 C.J.S. Subrogation § 4, p. 586], more specifically upon hereinbefore-quoted paragraph 15 of the policy “conditions.” We observe in passing that the record suggests no demand upon or action by Chumbley, the insured, under that portion of paragraph 15 purporting to have obligated him to “execute and deliver instruments and papers and do whatever else is necessary to secure” plaintiffs alleged subrogation right. Regardless of that, plaintiff’s status here is, in legal effect, that of an assignee of a portion of Chumb-ley’s cause of action for personal injury For that matter, plaintiff recognizes its status as being that of an assignee, complaining in its first amended petition that, in entering into a “settlement agreement,” defendants Chumbley and Losinsky “ignored the rights of plaintiff which rights plaintiff held as the assignee of Forest Oakley Chumbley . » .

This brings us to the question as to whether Chumbley’s right to recover against Losinsky for medical expenses, which was embraced in, and was a part of, Chumbley’s cause of action for personal injury, was assignable. Although there is no specific admission by plaintiff Travelers that a cause of action for personal injury is not assignable in Missouri, there is no contention to the contrary by counsel, and their earnest effort to persuade us that a claim for medical expense “is separate and apart from a bodily injury claim” strongly suggests recognition of the nonassignability of a cause of action for personal injury. However, we hasten to add that we rest our conclusion to that effect (i. e., that a cause of action for personal injury is not assignable) upon the case law in Missouri and not upon so frail a foundation as the implied concession of counsel. If (as we have determined) Chumbley’s cause of action for personal injury, which embraced and included his right to recover his medical expenses, was not assignable, it necesarily follows that the purported assignment of such right of recovery by paragraph IS of the policy “conditions” was of no' validity and effect. Peller v. Liberty Mutual Fire Ins. Co., 220 Cal.App.2d 610, 34 Cal.Rptr. 41. See Fifield Manor v. Finston, 54 Cal.2d 632, 7 Cal.Rptr. 377, 380-383, 354 P.2d 1073, 1076-1079, 78 A.L.R.2d 813, 818-821; City of Richmond v. Hanes, 203 Va. 102, 122 S.E.2d 895. Consult again the Missouri cases cited marginally in footnote 12.

From all of the foregoing, we think it obvious that medical expense does not stand “on the same footing as property damage” and that instant plaintiff’s position is not supported by General Exchange Insurance Corp.,. supra, where the insured had assigned “her entire claim for property damages” [357 Mo. at 1106, 212 S.W.2d at 400] to her collision insurance carrier — “the faet which was considered' decisive and the basis for both opinions (in the Supreme Court and in the St. Louis Court of Appeals) so our brethren of the latter court thought in O’Hanlon Reports, Inc. v. Needles, Mo. App., 360 S.W.2d 382, 385. However that may be, since the nonassignability of defendant Chumbley’s cause of action for personal injury, which embraced and included his right to recover his medical expenses, is dispositive of the appeal as to defendant Losinsky, we eschew an extensive excursion into the provocative-and controversial field of splitting a cause of action, noting only in passing that-the case at bar presents a novel and unique situation in which plaintiff not only would split the cause of action for personal injury by severing therefrom the claim for medical expenses but also would fragment that claim by dividing it between plaintiff and Churnb-ley, $500 to the former and the remainder to the latter.

This appears to be a case of first impression in Missouri. In fact, we find only two cases in other jurisdictions involving an insurer’s alleged right to be subrogated, as to medical payments coverage afforded by an automobile policy, to the insured’s right of recovery from a third-party tort-feasor. In one of those cases [Smith v. Motor Club of America Ins. Co., 54 N.J. Super. 37, 148 A.2d 37], brought to our attention in plaintiff’s brief, it was held that, since the Legislature had vested the Commissioner of Banking and Insurance with authority to strike from insurance policies any clauses deemed by him to be unfair or inequitable and since he had taken no such action with respect to the subrogation clause under consideration, the courts should not find such clause to be against public policy and should not eliminate the clause by reformation of the policy in suit. No question involving the assignability of a cause of action for personal injury (or of a part thereof) or involving the splitting of a cause of action (or, as here, a split within a split) was raised, discussed or ruled. In the other of the two cases [Peller v. Liberty Mutual Fire Ins. Co., 220 Cal.App.2d 610, 34 Cal.Rptr. 41], discovered in our independent research, a subrogation clause substantially thé same as that in the case at bar was held invalid as a prohibited assignment of a cause of action arising out of personal injury. Since our Missouri courts consistently have followed'the common law rule prohibiting the assignment of a cause of action for personal injury (see cases cited marginally in note 12), we come to the same conclusion as that reached in Peller, supra.

This appeal having been decided,, additional comments are motivated and- may be justified only by the fact that both plaintiff Travelers and defendant Losinsky have urged upon us considerations of “public policy.” We heartily agree with plaintiff’s counsel that “the business of insuring against anticipated medical expense is legitimate, useful and widespread,” but we part company with them at that point. Indeed, insuring against expenses payable under automobile “medical payments” coverage (i. e., against expenses arising out of “bodily injury, caused by accident, while occupying or through being struck by an automobile”), has become' so “useful and widespread” that many, if not most, of those who carry automobile medical payments coverage also have other coverage of some character (e. g., coverage under hospital and medical service plans such as Blue Cross and Blue Shield, accident or hospitalization insurance, burial policies, or double indemnity benefits under life insurance policies) designed to pay, or to provide funds for payment of, all or some of the expenses payable under automobile medical payments coverage.

If some automobile insurers making the subrogation “condition” in their policies applicable to medical payments coverage were to obtain judicial approval thereof, no doubt all such insurers would, in due course, similarly condition their policies. And, if automobile insurers were to insist upon sub-rogation as to medical payments coverage, others affording coverage against all or some of the same expenses logically would be justified in insisting upon subrogation and reasonably might be expected so to “condition” their coverages. That this is not improbable is demonstrated by one of the cases here cited by plaintiff Travelers [Michigan Medical Service v. Sharpe, 339 Mich. 574, 64 N.W.2d 713], in which the court held that a hospital service organization (of the same character as Blue Cross) was entitled to maintain a suit against a subscriber-member who held “a hospital care certificate” containing a subrogation clause. Thus, the nurturing of -subrogation as to medical payments would give substance to the unwelcome specter of multiple subrogation claims by an automobile insurer and others making payments to the same individual on account of bodily injuries sustained in the same accident. And, so it seems to us, multiple subrogation claims inevitably would lead to conflicts and disputes between subrogation claimants, would complicate and make more difficult the negotiation of voluntary settlements with third-party tortfeasors, and would encourage and promote suits and interpleaders, all running counter to the policy of the law.

Automobile medical payments coverage is of comparatively -recent origin. It was conceived and reared without benefit of sub-rogation, and only during the -past few years have some automobile insurers undertaken to wrap it -in a mantle of subrogation. It verges on being a matter of common knowledge of which we might (although we need not) take judicial notice that many prominent automobile insurers do not now undertake to make the subro-gation “condition” in their policies applicable to medical payments coverage, and that (contrary to the undocumented assertion of instant plaintiff’s counsel) so “conditioning” medical payments coverage does not, in fact, work a perceptible reduction in the premium charged for such coverage.

Our determination of this appeal as to defendant Losinsky rests solidly upon the long-recognized and well-established legal principle prohibiting assignment of a cause of action for personal injury; and we find no consideration of “public policy” which would justify us in ignoring, hewing through, or carving an exception in, that legal principle for the purpose of enabling instant plaintiff (and those of like inclination) to become subrogated as to medical payments coverage and thereby, so we think, lifting the lid on a Pandora’s box crammed with both practical and legal problems.

The dismissal of plaintiff’s first amended petition as to both defendants is affirmed.

RUARK, P. J., and HOGAN, J., concur.

      . Except as is otherwise specifically stated, all statutory references are to RSMo 1959, Y.A.M.S., and all references to rules are to the Rules of Civil Procedure, V.A. M.R.

      . Hall v. Smith, Mo., 355 S.W.2d 52, 55(1); Jacobs v. Jacobs, Mo., 272 S.W.2d 185, 188(2, 3); Bedell v. Daugherty, 362 Mo. 598, 242 S.W.2d 572, 574(1, 2); Ladue Contracting Co. v. Land Development Co., Mo.App., 337 S.W.2d 578, 582(2-4); Fish v. Fish, Mo.App., 307 S.W.2d 46, 49(1).

      . Rule 55.14; Sec. 509.130; Crouch v. Tourtelot, Mo. (banc), 350 S.W.2d 799, 801(1); M.F.A. Mutual Ins. Co. v. Hill, Mo., 320 S.W.2d 559, 562(2); Beets v. Tyler, 365 Mo. 895, 290 S.W.2d 76, 79(2); Moffett v. Commerce Trust Co., Mo., 283 S.W.2d 591, 595(1).

      . Farm Bureau Mutual Ins. Co. of Missouri v. Anderson, Mo.App., 360 S.W.2d 314, 320(7); Hartford Fire Ins. Co. v. Wabash Ry. Co., 74 Mo.App. 106, 114. See General Exchange Ins. Corp. v. Young, Mo.App., 206 S.W.2d 683, 688-689, affirmed 357 Mo. 1099, 212 S.W.24 396.

      . Nationwide Mutual Ins. Co. v. Spivey, 259 N.C. 732, 131 S.E.2d 338; Cleaveland v. Chesapeake & Potomac Tel. Co., 225 Md. 47, 169 A.2d 446, 448(1); Calvert Fire Ins. Co. v. James, 236 S.C. 431, 114 S.E.2d 832, 835-836, 92 A.L.R.2d 97; Dubose v. Lowe, Ohio Mun.Ct., 189 N.E.2d 923, 926(7); Hartford Fire Ins. Co. v. Continental Bus System, Inc., Tex.Civ.App., 274 S.W.2d 175(1); City of New York Ins. Co. v. Tice, 159 Kan. 176, 152 P.2d 836, 840(8), 157 A.L.R. 1233; Ocean Acc. & Guar. Corp. v. Hooker Electro-Chemical Co., 240 N.Y. 37, 147 N.E. 351, 354(8, 9); Bahn to use of Farm Bureau Mutual Automobile Ins. Co. v. Shalev, D.C.Mun.App., 125 A.2d 678, 679(1, 3); United Pacific Ins. Co. v. Schetky Equipment Co., 217 Or. 422, 342 P.2d 766, 770-771(4, 5); 29A Am.Jur., Insurance, § 1733, p. 810; 46 C.J.S. Insurance, § 1209, l.c. 155, 159; annotation 92 A.L.R.2d 102, 109, 124.

      . “When items of special damage are claimed, they shall be specifically stated.” Rule 55.21; Sec. 509.200.

        . 86 C.J.S. Torts § 21, p. 937; 52 Am. Jur., Torts, § 6, p. 366; 1 Am.Jur.2d, Actions, § 66, p. 596; Id., § 69, p. 597. “The fundamental legal concept of a tort is a wrong with resulting damage . . . .” Moeller v. Weston Trucking & Forwarding. Co., 136 N.J.L. 643, 57 A.2d 465, 466 (2). See Biscoe v. Kowalski, Mo., 290 S.W.2d 133, 138(5, 6).

      . Smith v. Smith, Mo.App., 300 S.W.2d 275, 280(8); Gray v. Blight, 10 Cir., 112 F.2d 696, 699; United States v. Rogers & Rogers, D.C.Minn., 36 F.Supp. 79, 80(3); Hubbard v. Ruff, 97 Ga.App. 251, 103 S.E.2d 134, 136(3); Mumford v. Wright, 12 Colo.App. 214, 55 P. 744, 746.

      . This necessarily was true also in Wise v. Towse, Mo.App., 366 S.W.2d 506, 508 (cited by Travelers), where “plaintiffs sought medical diagnosis and treatment for injuries resulting from the accident” and the examining physician “[o]bviously . . . thought” that the X-rays under discussion were “necessary to his diagnosis and treatment” of such alleged bodily injuries.

      . Consult City of Richmond v. Hanes, 203 Va. 102, 122 S.E.2d 895, 898; Fifield Manor v. Finston, 54 Cal.2d 632, 7 Cal.Rptr. 377, 378, 381, 354 P.2d 1073, 1074, 1077, 78 A.L.R.2d 813, 816, 819; Peller v. Liberty Mutual Fire Ins. Co., 220 Cal.App.2d 610, 34 Cal.Rptr. 41.

      . Fifield Manor, supra note 10, 7 Cal.Rptr. at 382, 354 P.2d at 1078, 78 A.L.R.2d at 820; Peller, supra note 10, 34 Cal.Rptr. at 42; City of Richmond, supra note 10, 122 S.E.2d at 900. See McKenzie v. Missouri Stables, 225 Mo.App. 64, 75, 34 S.W.2d 136, 141(16); General Exchange Ins. Corp., supra note 4, 206 S.W.2d at 689 (affirmed 357 Mo. 1099, 212 S.W.2d 396); Ocean Acc. & Guar. Corp., supra note 5, 147 N.E. at 353, 354; Royal Indemnity Co. v. Security Truck Lines, 212 Cal.App.2d 61, 27 Cal.Rptr. 858, 860.

      . Kramer v. Laspe, Mo.App., 94 S.W.2d 1090, 1094(7); Beechwood v. Joplin-Pittsburg Ry. Co., 173 Mo.App. 371, 375-377, 158 S.W. 868, 869-870(2); McLeland v. St. Louis Transit Co., 105 Mo.App. 473, 478-479, 80 S.W. 30, 31(1); Schubert v. Herzberg, 65 Mo.App. 578, 584. See Freeman v. Berberich, 332 Mo. 831, 847, 60 S.W.2d 393, 401.

      . Paragraph 15 of the policy “conditions” [“In the event of any payment under this policy, the company shall be subro-gated to all the insured’s rights of recovery therefor . . .. purported to subrogate plaintiff to Chumbley’s right to recover $500, the amount of plaintiff’s payment, whereas Chumbley’s medical expenses for bodily- injuries sustained in the accident of August 20, 1960, admittedly w.ere “in excess of $500” (as was stated in plaintiff’s first amended petition) and apparently approximated $1,200 (as was alleged in Chumbley’s petition .in his damage suit against Losinsky).


author: HOGAN, Judge.

text:
    Goldie R. TENER, Plaintiff-Respondent, v. John R. HILL, Defendant-Appellant.
    No. 8374.
    Springfield Court of Appeals. Missouri.
    Aug. 19, 1965.

      Robert E, Seiler, K. J. Elliff, Seiler, Blanchard & Van Fleet, Joplin, for defendant-appellant.
    William H. Burden, Joplin, Edward V. Sweeney, Monett, for plaintiff-respondent.
   HOGAN, Judge.

This action to recover for personal injuries and property damage arose out of a collision which occurred at the intersection of 23rd and Cleveland Streets in Joplin, Missouri, at 11:55 A.M. on April 30, 1962. Upon trial, a jury found the issues for the plaintiff and assessed her damages at the sum of $1,850.00. The defendant has appealed.

Both streets were gravel surfaced at the time of the casualty; neither was considered a superior or favored highway, and there was no form of traffic control at the intersection. Very generally, Cleveland Street runs north and south and 23rd runs east and west. The intersection is irregularly shaped, however, first, because 23rd Street intersects Cleveland on the east at a point north of its intersection on the west, and second, because 23rd Street “fans out,” somewhat like the base of a triangle, at both the east and west entrances to the intersection. The appellant describes the intersection by saying that 23rd Street crosses Cleveland at an angle, jog or “S” curve, so that the course of 23rd Street shifts to the south about 18 feet over a distance of about 75 feet, and because of this shift the northeast-southwest axis of the intersection is longer than the northwest-southeast axis, being approximately 70 feet for the former and approximately 35 feet for the latter. The respondent does not describe the intersection except by reference to the exhibits. The irregularity of the intersection may be described by saying that the projected center line of 23rd Street east of the intersection is 15 feet north of the projected center line of 23rd Street west of the intersection; and, while 23rd appears to have been laid out as a 22-foot -street east of the -intersection and a 17 to 18-foot street west of the intersection, the “fan out” is such that at the east entrance to the intersection 23rd Street measures approximately 60 feet from north to south, and at the west entrance it measures some 45 feet from north to south. Cleveland is about 22 feet wide from east to west south of the area of intersection, and some 17 feet wide north of it. In candor, the shape of the intersection and the course of the vehicles’ travel defy accurate verbal description, and we therefore attach a diagram in an attempt to make the opinion comprehensible. We must add that at the time in question there was shrubbery growing- along the property line at the southeast corner of the intersection, so that the view of the northbound traveler on Cleveland was blocked to the east and that of a westbound traveler on 23rd Street was blocked to-the south.

Only the parties testified as eyewitnesses to the accident. The nature and extent of the plaintiff’s injuries are not in issue here. Mrs. Tener was traveling west along 23rd in a 1954 Mercury owned by her but being driven, by her brother, Mr. George Van, who did not testify. Mrs. Tener and Mr. Van had run some errands and attended to some family business, and they were on their way home, apparently for “lunch.” It was stipulated that the plaintiff’s vehicle, both as it approached the area of intersection and at the time of collision, was being driven, in the tracks or ruts indicated on the diagram. It was an essential part of the plaintiff’s trial theory that at the time of the accident the surface of 23rd Street was so rough that it was necessary to travel in the tracks, and that it was necessary to follow the tracks through the intersection because the manhole cover (in the northwest part of the intersection) protruded above the surface so far that an automobile could not safely pass over it. In support of this theory, the plaintiff adduced evidence that 23rd Street east of the intersection was “full of holes and * * * awful rough,” and Mrs. Tener testified that the manhole cover “stuck up about that far out of the ground,” indicating the length of her hand. On this aspect of the case, the plaintiff also-had the testimony of a witness who lived nearby that “back at that time [of the casualty]” the manhole cover protruded some four or five inches above the surface of the street. There is at least some record evidence indicating that it had become customary to- follow the tracks through the intersection, though, as we say, the necessity for following the tracks is a matter sharply contested by the defendant.

In any event, as the plaintiff related the accident, Mr. Van was proceeding westerly in the tracks, and as the plaintiff’s vehicle “went into where the wreck was” the speed of plaintiff’s vehicle was about five miles an hour. Mrs. Tener looked both to the right and left but saw nothing. While her testimony is somewhat ambiguous as to whether the intersection was literally a “blind” intersection to the south because of the shrubbery on the southeast corner, she did say that there was “hedge all around the place,” and that in order to see to the south “you have to be back a little ways from the intersection.”

The plaintiff did not, so far as we can determine, actually locate the position of her vehicle in the intersection when the collision occurred. While one of the photographs she introduced in evidence seems to have been designed to show that the right front side of her vehicle was about one foot south of the manhole cover, her trial testimony is not correlated with the photograph. Mrs. Tener did introduce a photograph of her automobile showing the initial point of contact as having been at the front of the left door of her car, a two-door sedan, but in adducing a description of the accident counsel contented himself with Mrs. Tener’s statement that, as she looked “straight ahead, west,” she “ * * * just heard a terrific blow and we were hit and I felt the impact * * * [and] the car went up on two wheels and then bounced back.”

The plaintiff also introduced portions of a pre-trial deposition given by the defendant in which he had said that he saw plaintiff’s vehicle when it was “just east, coming right into the intersection,” and that the front of plaintiff’s vehicle was then “practically north * * * [perhaps] * * * two or three feet east” of the telephone pole on the southeast corner. The defendant also stated in his deposition that Mrs. Tener’s vehicle entered the intersection first.

The defendant, a former superintendent of streets, lived on the southeast corner of the intersection. It was his shrubbery which was growing along the property line, principally on the south side of 23rd Street, east of the intersection. Mr. Hill’s version of the accident was that he had backed out of his garage, “approximately 80 feet south of the intersection,” and had gone north on Cleveland toward the intersection with the intention of turning right, or east. As he approached the intersection, Mr. Hill was at all times on the east side of the center line, and as he came to the area of intersection the shrubbery “was pretty dense and you just couldn’t hardly see through it.” As we understand his testimony, the defendant claimed that he approached the intersection with the- right side of his car about two feet from the east edge of the street, and he “just started to make the turn [to the right, to go east on the south side of the east-west street] and * * * this car was coming down on my side of the street.” Mr. Hill was traveling “I imagine 12' or maybe 15 [miles per hour]” and applied his brakes as soon as he saw the Tener vehicle, but he succeeded only in stopping “just about the time the impact occurred,” so “[his] left front fender” collided with “the left side of their car, about the middle.” The Tener vehicle, according to Mr. Hill, “traveled on from the impact in a north and westerly direction,” and stopped so the “front end of his car was about even with the manhole.”

Being asked to recount the accident upon cross-examination, the defendant was shown to have testified by deposition that he was some 15 to 20 feet south of the intersection when he first saw the Tener vehicle; and then defendant repeated that he applied his brakes as soon as he saw the plaintiff’s car.

As we have indicated, the defendant strongly controverted the plaintiff’s assertion that it was at all necessary to drive in the tracks or ruts on 23rd Street. It is unnecessary to detail all the evidence on this point, but the defendant claimed and adduced substantial proof to show that 23rd Street was smooth enough for a vehicle to be driven anywhere upon the roadway, and that the manhole cover did not protrude far enough above the ground to require a vehicle to be driven around it rather than over it. The defendant also had the evidence of patrolman Charles Brewer, who had investigated the accident. Patrolman Brewer, without objection, located the point of impact as being a point in- the southeast quadrant of the intersection (indicated as point “C” on the diagram) 10 feet 9 inches northwest of the telephone pole in the southeast corner of the intersection, and Mr. Brewer also testified' that on the date of the accident it was possible to proceed directly over the manhole. Other more particular facts will be noted in the course of the opinion.

First of all, we must consider the respondent's motion to dismiss the appeal because the appellant has not made a “fair and concise” statement of the facts in his brief, as required by Rule 83.05(c). We believe that the respondent’s criticism of the appellant’s statement is largely unjustified; certainly there is no basis for saying, as the respondent claims, that the appellant has misrepresented the facts or grossly distorted them. We consider that the appellant’s statement adequately presents the facts, particularly when it is taken with the respondent’s additional statement. We will consider the appeal on its merits. Fitzpatrick v. St. Louis-San Francisco Railway Co., Mo., 300 S.W.2d 490, 493 [1,2].

The appellant’s first assignment, which is rather elaborately made, is that the evidence shows plaintiff’s driver to have been guilty of contributory negligence, and, since the plaintiff was engaged in a joint venture with her driver, she is also guilty of contributory negligence. We agree that the plaintiff and Mr. Van were co-ventur-ers on this particular trip, and that any negligence on the driver’s part is imputable to Mrs. Tener. In fact, that premise is not questioned and requires no discussion. It does not follow, however, that Mr. Van was guilty of such contributory negligence as to bar plaintiff’s recovery.

The principal thesis advanced by the appellant in support of his argument that the plaintiff was guilty of negligence “as a matter of law” is that her vehicle approached and entered the intersection on the south, left or wrong side of the road in violation of Section 304.015, par. 2, which provides that, with certain specific exceptions, a vehicle shall be driven upon the right half of the roadway upon all public roads or highways of sufficient width. The appellant maintains that the plaintiff, at least by imputation, is guilty of absolute negligence because the cases say any violation of Section 304.015, par. 2, is negligence “per se.” To support this argument, the appellant cites Justice v. Malin, Mo., 336 S.W.2d 77, 79-80 [1], and Foster v. Sacco, Mo.App., 343 S.W.2d 171, 175-176 [4], both of which indeed announce the general proposition that the failure of an operator of a moving vehicle to drive upon the right half of the roadway in violation of the statute is negligence per se.

This contention is not without substance. Had the plaintiff’s driver approached the east entrance to the intersection on the north or right side of 23rd Street, his lateral view to the south on Cleveland would have been extended; undoubtedly by approaching and entering the intersection with his vehicle on or partially on the south side of the road, the .plaintiff’s driver increased the likelihood that the path of his vehicle would converge with that of a vehicle approaching the intersection from the south-, and therefore increased the likelihood of a collision. Even so, we cannot say, in this case, that the trial court should have directed a verdict for the defendant. Without entering into an abstract discussion of the relative nature of the expressions “negligence per se” and “negligence as a matter of law,” as applied to statutory violations, it is sufficient to say here that there are valid excuses for failure to comply with Section 304.015, par. 2, other than those enumerated in Miles v. Gaddy, Mo., 357 S.W.2d 897, 902 [4], as the defendant argues. Our courts have repeatedly held that Section 304.015, par. 2, and <-:milar statutes do not require a vehicle to make use of a part of the road which is in fact impassable and unavailable for travel, and, likewise, a motorist may be excused from a statutory violation where he deviates from the prescribed course of travel in order to avoid a dangerous obstruction. Lix v. Gastian, Mo.App., 261 S.W.2d 497, 501 [9]. Here it was the plaintiff’s theory, which she developed with at least some positive proof, that her driver was required to follow the tracks because that part of 23rd Street north of the center line and east of the intersection was impassable, and that he drove south of the manhole cover because it protruded above the surface and constituted a dangerous obstruction. The Jury had before it several descriptions of the condition of the surface. In our view of the matter, it was a jury question whether the plaintiff’s driver followed the tracks into and through the intersection out of necessity or for considerations of safety. Upon the record presented, neither we nor the trial court could prescribe an exact path or course of travel which the plaintiff’s driver was obliged to follow — as defendant seems to argue — and we must rule this point against the defendant.

The appellant further maintains that the plaintiff’s driver, and hence the plaintiff, was contributorily negligent as a matter of law because he failed to see the defendant’s vehicle prior to the time of impact, because he did not maintain an effective lookout, because he took no evasive action after seeing the defendant’s vehicle, and because he failed to give a warning of his approach. Again, these contentions are not altogether without substance. The difficulty with the defendant’s position in this case is that the record itself is ambiguous in many respects, and a plaintiff’s contributory negligence is a jury question, unless the only reasonable conclusion is that plaintiff was negligent and that his negligence was a proximate cause of his injury. Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 19 [1]; Kickham v. Carter, Mo., 314 S.W.2d 902, 908-909 [8] [9]. We have no doubt that Mr. Van was obliged to keep a lookout as he approached and entered the intersection, as Douglas v. Whitledge, Mo.App., 302 S.W.2d 294, 299, holds, but the evidence does not establish when Mr. Van could have seen the defendant approaching the intersection, or even that he could have seen him at all, had he been looking. The plaintiff herself stated that the shrubbery on the southeast corner of the intersection blocked the view (to the south on Cleveland) “some — a lot, yes.” Her testimony is conflicting in itself as to whether a vehicle going west on 23rd Street “[had] to be back a little ways from the intersection,” or “up past the telephone pole,” to have a clear view of Cleveland from the north. Mr. Hill’s description of the shrubbery was that “* * * it was pretty dense and you just couldn’t hardly see through it.” So, the record leaves us in doubt whether the view of plaintiff’s driver was completely obstructed, or only partially so,, and if the view was only partially obscured; the point at which Mr. Van should have seen Mr. Hill approaching. In the absence of evidence that in the exercise of the highest degree of care Mr. Van should have seen the defendant sooner than he did, we cannot hold him contributorily negligent as a matter of law in failing to maintain a careful lookout. O’Neill v. Claypool, Mo., 341 S.W.2d 129, 135 [11, 12]; Levin v. Caldwell, Mo., 285 S.W.2d 655, 659 [3]. The defendant also complains that plaintiff’s driver took no evasive action to avoid the collision, but Mr. Van was, after all, the favored driver, and the evidence is equivocal as to when he could have- become aware of impending danger. As we also pointed out in Douglas v. Whitledge, supra, 302 S.W.2d at 303 [7], Mr. Van’s duty to take evasive action did not arise simply on the appearance of another vehicle; it arose only when he saw or realized', or should have seen, or realized, in the exercise of the highest degree of care, that there was danger of a collision. In the absence of evidence that this duty arose at a time when action would have been effective, we cannot say Mr. Van was guilty, of contributory negligence which barred the plaintiff’s recovery. Fuzzell v. Williams, Mo.App., 288 S.W.2d 372, 377, and see Politte v. Miller, Mo.App., 301 S.W.2d 839, 843, where knowledge of the immediate approach of another vehicle came too late for effective action. Possibly, as the defendant suggests, the plaintiff’s driver had created a sufficient hazard to approaching traffic that he should' have given a warning by sounding his horn, Bunch v. Crader, supra, 369 S.W.2d at 774 [14-17], but again we cannot say that he was con-tributorily negligent as a matter of law in failing to do so. There was evidence that Mr. Hill had visual notice of the approach of plaintiff’s vehicle, possibly in time to' stop; since that is true, it simply became a. jury question whether a warning would have given a more effective notice of the approach of plaintiff’s vehicle and was therefore a proximate cause of the casualty. Steigleder v. Lonsdale, Mo.App., 253 S.W. 487, 489-490 [2] [3]. In our view of the case, we cannot, at least for any reason assigned by the appellant, say that the plaintiff’s driver was contributorily negligent as a matter of law so as to bar the plaintiff from recovery.

The defendant’s second general assignment of error is directed to plaintiff’s Instruction No. 1. The essence of his complaint is that the instruction imposes a higher or more burdensome duty upon- the defendant than the law requires and, as the defendant phrases the matter, “ignored the real issue tried.” The plaintiff submitted her case upon excessive speed and failure to yield the right-of-way. Instruction No. 1, of which complaint is made, first abstractly advised the jury that the driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has already entered the intersection from a different highway, provided there is no form of traffic control at the intersection, and that when two vehicles enter an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the driver of the vehicle on the right. The instruction then continued:

“ * * * Therefore you are instructed that if you find and believe from the preponderance of the evidence that on the 30th day of April, 1962, one George Van was driving plaintiff’s automobile westward on 23rd Street * * * and if you find that the said George Van as he approached, entered and proceeded through the intersection of 23rd Street and Cleveland Street was exercising the highest degree of care, and if you find that plaintiff’s automobile, driven by the said George Van, entered said intersection before defendants vehicle entered said intersection, or if you find that said vehicles entered said intersection at approximately the same time, then you are instructed that it was the duty of the defendant to yield the right-of-way at said intersection to plaintiff’s automobile, and if you find that the defendant failed to do so then you are instructed that the defendant was guilty of negligence, and if you find that as a direct result of such negligence of the defendant his vehicle and plaintiff’s vehicle collided and if you find that as a direct result of said collision plaintiff was injured and her automobile was damaged, then your verdict will be in favor of plaintiff and against the defendant on plaintiff’s petition, provided you find that plaintiff was in the exercise of ordinary care for her own safety.” (Our emphasis.)

We consider the defendant’s criticism to be well taken. We agree that Instruction No. 1 permits the Jury to find that there had been a breach of the defendant’s duty to act without requiring the jury to find the basic fact upon which his duty to act rested, that is, that he knew or should have known of the danger or imminence of a collision between the two vehicles. As was said long ago in the case of Stakelback v. Neff, Mo.App., 13 S.W.2d 575, 577 [1], the law does not impose “the duty upon the driver of an automobile, upon approaching and entering an intersecting street, to stop, decrease the speed of, or change the course of, his car, merely because he sees another automobile in the street ahead of him. To the contrary, such duty to act would clearly not arise, unless the exercise of due care upon the part of the driver would lead him to believe that otherwise a collision would occur. * * * ” Plaintiff’s Instruction No. 1 in this case not only has the vice discussed in the Stakelback case, supra, and the cases following it, but, having thus erroneously stated the law, the instruction wholly deprives the jury of its function of deciding whether or not the defendant’s conduct constituted negligence.

Though it may be only stating the same matter in another way, we think the instruction is erroneous upon the other ground suggested by the defendant, that is, that it ignores or at least forecloses the jury’s consideration of the qualifying or exculpatory circumstances shown by the evidence. While the violation of Section 304.021, pars. 1 and 2, may constitute negligence per se, still there may be valid excuses for failing to observe the statute, or circumstances which qualify the duty imposed by these two paragraphs. Lay v. McGrane, Mo., 331 S.W.2d 592, 599 [8]; MacArthur v. Gendron, Mo.App., 312 S.W. 2d 146, 150 [7-10]. This is not a case in which there was no conflict of evidence concerning the circumstances of the collision; even if it were conceded that the manhole cover constituted an obstruction in the path of the plaintiff’s vehicle, in the northwest corner of the area of intersection, the testimony was in direct conflict whether the condition of 23rd Street east of the intersection was such that it was necessary for Mr. Van to approach on the south or left side of the street. Instruction No. 1 wholly excludes from the jury’s consideration the qualifying circumstance that the defendant’s vision to the east was obscured and that he had no reason to anticipate that Mr. Van would approach the intersection on the south or left side of 23rd Street, even if it were necessary to avoid the manhole cover once he started to cross; and, in the absence of knowledge or reasonable apprehension that an automobile proceeding westwardly along 23rd Street would not approach the intersection oh the north side, the defendant was not required to anticipate the presence of the plaintiff’s vehicle upon the south side of the street into which he was preparing to turn. Moore v. Fitzpatrick, Mo.App., 31 S.W.2d 590, 591-592 [4, 5]. In short, the instruction ignores the fact that had plaintiff been pursuing the course of travel ordinarily to be anticipated, the paths of the two vehicles would not have converged. We consider the giving of Instruction No, 1 to have been prejudicially erroneous, and for that reason the cause must be reversed and remanded for a new trial. It is so ordered.

RUARK, P. J., and STONE, J., concur.

      . Somewhat modified from Defendant’s Exhibit “C,” a diagram prepared by a registered surveyor, and received in evidence by agreement.

      . All references to statutes and rules are to RSMo (1959), Y.A.M.S. and V.A.M.R., unless otherwise specifically noted.

      . It may also be noted that Section 304.-016, par. 4, subpar. (2), required plaintiff’s vehicle to be driven to the right, since the plaintiff was approaching within 100 feet of an intersection when the view was obstructed.

      . For which see Rice v. Allen, Mo., 309 S.W.2d 629, 631 [1]; Richardson et al., Legal Excuse and Unavoidable Accident, 4 Mo.Bar C.L.E. Series, § 12.7, pp. 162-168 (1961); Prosser, Torts, § 34 pp. 158-159 (2d ed. 1955).

      . Moss v. Stevens, Mo., 247 S.W.2d 782, 785 [3, 4]; Bunch v. Crader, Mo.App., 369 S.W.2d 768, 773 [7, 8]; Darnell v. Ransdall, Mo.App., 277 S.W. 372, 373 [-1, 2]-; Harmon v. Fowler Packing Co., 129 Mo.App. 715, 719-720, 108 S.W. 610, 611. See 60 C.J.S. Motor Vehicles § 282c p. 660, and § 356, p. 844.

      . Nydegger v. Mason, Mo., 315 S.W.2d 816, 819-820 [2, 3]; Douglas v. Whitledge, supra, 302 S.W.2d at 303 [7]; Burke v. Renick, Mo.App., 249 S.W.2d 513, 517 [7]; Greenwood v. Bridgeways, Inc., Mo. App., 243 S.W.2d 111, 114 [4, 5]; Devoto v. St. Louis Pub. Serv. Co., Mo.App., 238 S.W.2d 66, 72 [6].


author: PER CURIAM.

text:
    STATE of Missouri, Plaintiff-Respondent, v. George Wayne BARLETT, Defendant-Appellant.
    No. 8410.
    Springfield Court of Appeals. Missouri.
    Sept. 3, 1965.

      James Brown, Joplin, for defendant-appellant.
    Dean S. Johnston, Joplin, for plaintiff-respondent.
   PER CURIAM.

Appellant was convicted and fined fifteen dollars upon a charge made in the information, which is as follows:

“Dean S. Johnston, Assistant Prosecuting Attorney within and for the County of Jasper, and State of Missouri, upon his official, oath, informs-the Magistrate that on or about the 26th day of October, 1963, in the County of Jasper, and State of Missouri.
“George Wayne Barlett operated his 1962 Mercury at a speed in excess of the State limits, to-wit: upwards to 85 mites per hour.”

The sole question is whether the information charged a crime.

Section 304.010, RSMo 1949, V.A.M.S., provides that every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner. Paragraph two specifically prohibits the exceeding of certain speed limits on certain designated type roads, and paragraph five makes the violation of this section a misdemeanor.

Supreme Court Rule 24.01, V.A.M.R. directs that the information shall contain a plain, concise, and definite written statement of the essential facts constituting the offense charged.

The test of the sufficiency of an information is usually said to be whether it contains all the essential elements or ingredients of the offense set out in the statute and clearly apprises the court and the defendant of what facts constitute the offense whereof the defendant is charged; and also, whether it would be a bar to subsequent prosecution for the same offense. The information should be reasonably understandable and make definite charges which are sufficient to clearly inform. Nothing which is material to the charge will be taken by intendment. In criminal cases all presumptions go in favor of innocence. The accused cannot be presumed to know and be apprised of that which is not clearly set forth. It devolves upon the pleader to set forth facts which bring the accused within the terms of the statute. State v. Mace, supra, Mo., 357 S.W.2d 923(3); State v. Cheney, Mo.App., 305 S.W.2d 892(2); State v. Murphy, 141 Mo. 267, 42 S.W. 936, 937. Thus it is that neither the court nor the defendant is required to go beyond the information in order to ascertain the crime with which defendant is charged nor to guess or speculate upon the meaning. This applies to misdemeanors as well as felonies.

One of the essential facts necessary to constitute a violation of § 304.010 is that the offense must occur upon a highway. For aught the information charges, the act could have been done in the defendant’s private meadow, drag strip, or testing ground. It could have taken place on water in a hydroplane, in a plane in the air above his house, or in a tunnel, underground. There is nothing whatsoever which applies it to a public highway.

We are aware that the word “highways” as referred to in the statute is-to be used in its popular, rather than technical, sense and was intended to apply to all roads traveled by the public. Phillips v. Henson, 326 Mo. 282, 30 S.W.2d 1065(8); Kelly v. Lahey, Mo.App., 232 S.W.2d 177, 181. Nevertheless, the statute itself applies speed limits to highways. It does not affect the use of private property not used as public roads. See Crocker v. Jett, Mo.App., 93 S.W.2d 74, 76; Eoff v. Senter, Mo.App., 317 S.W.2d 666, 671. Where the act is criminal only when done at a particular place, such place becomes a matter of essential description. 7 Am.Jur.2d Automobiles and Highway Traffic, § 312, p. 856, § 315, p. 858; 8 Blashfield, Cyclopedia of Automobile Law and Practice, § 5441, p. 357, § 5443, p. 359, § 5431, p. 340.

We do not deem it necessary to pass on the question whether designation of the thing "operated” as a 1962 Mercury sufficiently designates such as a motor vehicle. The lack of designation of the place makes the information open to many interpretations. Certainly it does not clearly apprise the defendant of the offense charged. We are of the opinion that it does not charge the appellant with a crime and that the judgment of conviction should be reversed. So ordered.

All concur.

      . State v. Mace, Mo., 357 S.W.2d 923(3); State v. Graham, Mo.App., 322 S.W.2d 188(9); State v. Tevis, Mo.App., 340 S.W.2d 415, 419; State v. Harris, Mo., 313 S.W.2d 664, 669; State v. Cunningham, Mo., 380 S.W.2d 401, 403; State v. Richardson, Mo., 343 S.W.2d 51, 55; State v. Sargent, 241 Mo.App. 1085, 256 S.W.2d 265(12); 61 C.J.S. Motor Vehicles § 646, p. 748; 42 C.J.S. Indictments and Information § 139c, p. 1037.

      . State v. Hass, Mo.App., 82 S.W.2d 621; State v. Harris, supra, Mo., 313 S.W.2d 664(3); McCarthy v. Eidson, Mo., 262 S.W.2d 52(1); State v. Asher, Mo., 246 S.W. 911; State v. Hall, 130 Mo.App. 170, 108 S.W. 1077(3).

      . State v. McCloud, Mo.App., 313 S.W. 2d 177, 181; City of Raytown v. Roach, Mo.App., 360 S.W.2d 741, 743; State v. Reynolds, Mo.App., 274 S.W.2d 514, and cases at 515; State v. Muchnick, Mo.App., 334 S.W.2d 386, 390; State v. Maher, 232 Mo.App. 998, 124 S.W.2d 679.