author: RUARK, Presiding Judge.

text:
    Bob COX, Plaintiff-Respondent, v. Jess MOORE, Defendant-Appellant.
    No. 8434.
    Springfield Court of Appeals. Missouri.
    Aug. 10, 1965.

      Mann, Walter, Powell, Burkart, & Weathers, Jack A. Powell, Robert W. Schroff, Springfield, for defendant-appellant.
    Lindell R. Church, Springfield, for plaintiff-respondent.
   RUARK, Presiding Judge.

Defendant appeals from a judgment for damages in the sum of $6,710. The suit is the outgrowth of a collision between plaintiff’s 1955 Oldsmobile and (allegedly) defendant’s Guernsey steer, in which all concerned came off second best.

The incident occurred after dark in a rural or semi-rural area on paved Highway 266, which runs in a generally east-west direction. Defendant’s dwelling house sits on the south side of the road. A driveway runs from the highway down past the west side of the house and, apparently, to defendant’s barn lot. Plaintiff had spent the afternoon inventorying his “Hillbilly Haven,” which is situate some twelve miles west of Springfield. Having finished with that, he drove easterly to “Ed’s” place, where he says he drank (only) “one beer,” and then, around 7:30 P.M., drove east on the highway toward Springfield. He testified that he was driving fifty-sixty miles per hour; that as he came over a little knoll in front of defendant’s home there were five head of cattle strung out across the road, heading south. A black cow was in front and in the ditch on the south side, the four others following “straight behind.” He cut his car to the left and applied his brakes but struck hindermost a Guernsey steer weighing, he said, between six and seven hundred pounds, in the right rear flank. This threw the steer around to the right and threw plaintiff against his left door, thus causing his alleged injuries. He pulled into defendant’s driveway. The steer and the other cattle did not remain in the vicinity but went off in the dark. There were no other witnesses to the occurrence. Defendant’s son came out of the house; plaintiff told him, “I hit one of your cattle, buddy.” The son said “Where’d they go,” and he said “Out toward your barn.” Plaintiff drove on up the road, called the State Highway Patrol, and drove back to defendant’s place. The patrolman came; by that time the defendant had arrived and, according to plaintiff, defendant said, “ ‘Well, Bob,’ he said, ‘Don’t worry about anything.’ He said, ‘I’ll take care of everything on the cattle.’ He said, ‘It was my cattle.’ He said, ‘I’ll take care of everything on it.’ ” Thereafter he went on to Springfield. Defendant does not agree as to this conversation; but, since plaintiff has the verdict, we must accept that version which is most favorable to him.

Defendant’s son testified he was in the house and heard a noise that sounded like a blowout; a man pulled into the driveway, and he thought the man was fixing a flat. He went out and saw plaintiff. Plaintiff said he had hit a calf (but did not mention any cows) ; so the boy went up toward the end of the barn to look for a calf, or anything out on the lot, but found none; and found no gates open. He went back to the house to phone his father; and, while he was calling, plaintiff left. He thought plaintiff was drunk. He said they had a new seven-foot fence; that the cattle down in the pasture would have had to go through three gates to get out on the road.

Defendant testified his place was well-fenced and that his seven milk cows were in a pasture beyond and south of the barn lot and such cattle would have had to go through two gates in order to get up to the barn lot. In the morning they were still in the pasture. He also had three small calves locked in the barn, and two larger ones, a Guernsey steer and a Holstein bull, in the barn lot, all of which were still in place in the morning. He did ascertain that the top of the end post at the gate into the driveway “was pushed over”; later he cemented that post in. The fastener at the top of the gate was still hooked but the bottom of the gate was pushed open a little bit. He said that it might have been possible for a calf to put his head through, “spring it on,” and squeeze through, but that it would have been impossible for a cow to do so. The next day defendant found the Guernsey calf (steer) was “hopping” some, and he had it butchered. The foreman at the packing plant testified this steer (he called it a “ranny”) had a small bruise on his left hindquarter. He trimmed it off, and the carcass passed inspection.

Appellant’s first assignment is that plaintiff did not make a submissible case because he did not prove that it was defendant’s steer which he hit. He argues that plaintiff in his deposition testified that nothing was said by the defendant that night concerning the ownership of the cattle; and that in any event defendant, not having been home, could not have known it was his steer that plaintiff hit. He relies on plaintiff’s deposition to contradict the testimony as to his alleged admission that the cattle were his. But previous contradictory statements are for the jury, and this is true as to statements made in depositions. Defendant also asks, “What happened to the other cattle plaintiff said he saw, who owned them ?” The implication is that since it was seemingly impossible for defendant’s other cattle to have been out, it follows that plaintiff’s story that he saw five cows cannot be true; or, if true, that the cattle were not defendant’s or his responsibility. The jury was not required to believe the testimony of defendant and his son in regard to the number and location of his cattle, the character of gates and fencing, and the impossibility of the cows having gotten out; but the primary question concerns ownership of the Guernsey steer which defendant concedes was in the barn lot. The jury might not have believed the plaintiff as to the fact that there were five animals loose on the highway but did believe that the Guernsey steer was there. The fact that only the steer was on the highway, if so, would have a bearing on contributory negligence and causal connection, in that a jury might have found, had the issue been submitted to it, that plaintiff should have seen the steer in time to have avoided it; but this does not affect plaintiff’s case as to submissibility. The plaintiff’s case is supported by the admitted fact that the gatepost was loose and the bottom of the gate was pushed open. It is also supported by the fact that the next morning the Guernsey steer was “hopping a little bit” and was butchered. The Missouri Stock Law (RSMo 1959, § 270.010) permits the inference of negligence from the fact the animal was loose on the road. We believe plaintiff made a submissible case.

Appellant claims error in the refusal of his Instruction No. 5 which was as follows :

“The Court instructs the jury if you find and believe that at the time and place mentioned in evidence the plaintiff, Bob Cox, was operating his automobile eastwardly on the highway shown in evidence and if you further find that at said time and place a steer and other cattle were on the highway and in the path of plaintiff’s automobile, and if you further find that in the exercise of the highest degree of care and by keeping a lookout ahead the plaintiff, Bob Cox, could have seen that there was danger of a collision with said steer or cattle if he continued to drive his automobile eastwardly, and if you further find that the plaintiff failed to exercise the highest degree of care in failing to keep a careful and vigilant lookout, if so, and that in so failing the plaintiff’s car collided with the steer shown in evidence and that the plaintiff, Bob Cox, was thereby negligent and that such negligence, if you find he was negligent, directly contributed to cause his injuries and damages, if you find he was injured or' damaged, then you are instructed that plaintiff, Bob Cox, is not entitled to recover on his petition in this case and this is true regardless of whether the defendant was negligent.”

Defendant had pleaded contributory negligence. Plaintiff’s Instruction No. I told the jury that negligence on the part of the defendant might be inferred from the fact that the cattle were on the highway- at the-time of the collision.

Prior to its reenactment (Laws 1939, p. 360), the Stock Law statute, § 270.010, V.A.M.S., did not contain any reference to negligence. However, this court in Carr v. Threlkeld, Mo.App., 31 S.W.2d 592, had held that the mere presence of unattended animals on the highway makes a prima facie case of violation of the stock law. It treated such fact as analogous to res ipsa loquitur in respect to making a case of primary negligence. The reenactment included a provision which solidified that interpretation by making it a defense that the animals were outside the enclosure through no fault or negligence of the owner. Since then it has been interpreted as permitting a recovery on the theory of negligence, with the burden of showing lack of negligence on the owner. Keefer v. Hartzler, Mo.App., 351 S.W.2d 479, 480-481; King v. Furry, Mo.App., 317 S.W.2d 690; Anderson v. Glascock, Mo.App., 271 S.W.2d 243. Meshed with the proposition of animals running loose on the highway are the common law in regard to negligence and the statutory rules of the road concerning the operation of automobiles on the road. Every driver is required to use the highest degree of care (§ 304.010 V.A.M.S.; Ficken v. Hopkins, Mo., 389 S.W.2d 193[2]) in respect to animals as well as persons and vehicles. So we consider negligence and contributory negligence proper subjects of inquiry in a case brought under the stock law.

An instruction on failure to keep a lookout is generally considered sufficient if it hypothesizes the failure to keep a lookout and requires a finding that such failure was negligence which directly caused or contributed to the collision. Miller v. St. Louis Public Service Company, Mo., 389 S.W.2d 769; Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 25; Anthony v. Morrow, Mo.App., 306 S.W.2d 581, 587; Patton v. Hanson, Mo., 286 S.W.2d 829; De Mariano v. St. Louis Public Service Co., Mo., 340 S.W.2d 735, 744; Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 500-501. We consider the Instruction No. 5 sufficient as to form and content.

But respondent says that the instruction was properly refused because there was no evidence to support it. The plaintiff testified that his car was in good condition and his lights were on bright. He felt safe in driving fifty-sixty miles per hour. Section 304.350 V.A.M.S., provides that lights on high beam shall be arranged and aimed so as to reveal a person or vehicle for at least three hundred fifty feet ahead. In the absence of evidence to the contrary it will be presumed that plaintiff’s lights so conformed. Brown v. Wooderson, Mo., 362 S.W.2d 525, 529; Lemken v. Brooks Truck Lines, Inc., Mo., 322 S.W.2d 803, 805.

We must make a further examination of the facts. The terrain traversed, and this highway, was not entirely level; rather it was somewhat rolling. Going from west to east, as plaintiff was traveling, there is a slow and gradual incline commencing some distance to the west and continuing to a gradual leveling off or “crest” somewhere about near the front, or in the vicinity, of defendant’s premises. Further east it then commences to decline and goes into somewhat of a dip. Both parties introduced various photographs. Plaintiff’s photographer established to his own satisfaction (but how we do not know) the location of the “crest” and took pictures and measurements in reference to distances from such crest. The incline and decline is so gradual that we are unable to determine from the' photographs just where that crest is. It is established that the driveway into defendant’s premises was on the west side of the dwelling house and east of the barn. On the north side of the highway, opposite the entrance to the driveway, was a mailbox, apparently of average height and dimension, and most pictures are oriented with the mailbox. Plaintiff testified that the collision took place thirty or forty feet east of the driveway. That he was approximately one hundred feet back (to the west) when he “came over this little knoll” and saw the cattle. Then he introduced his Exhibit B (a picture which he apparently took himself), which purported to show the exact place where the collision occurred and the skidmarks of his car. He marked the exhibit (apparently with an “O” or circle) to show the exact spot of the collision. He testified that the knoll was a little bit east of the point of impact. Then he testified that the knoll was “right up there where I made the circle” and marked an “N” to show where the knoll was. If by the knoll which plaintiff came over he meant the crest of the gradual rise, then according to this testimony the collision occurred at the top of the rise, or slightly west of it, in the direction from which the plaintiff was coming. Also, again referring to the exhibit, it purports to have been taken with the camera facing west so that it showed as he was “coming down the road toward the camera.” This picture shows no sign of the driveway or the mailbox, which should have appeared if the collision occurred, as plaintiff testified, thirty to forty feet east of them. It may, or may not, well be that plaintiff was confused in his directions, but that would be a question for the jury to consider.

Plaintiff introduced his Exhibit C, being a photograph with camera in position, as the photographer testified, two hundred fifty feet west from the “crest of a rise that is east of the camera position,” which was never exactly marked or identified, except the photographer said this crest was “fifty feet west of the west edge of the driveway” and the camera position was some three hundred to three hundred twenty feet west of the mailbox opposite the driveway. The mailbox and its supporting post are clearly visible in that picture. Another of plaintiff’s exhibits is taken with the camera position five hundred feet west of the crest of the rise, which would be five hundred fifty feet west of the mailbox. In that picture the mailbox is not visible. Defendant offered pictures taken with camera facing east, one at a point one hundred fifty feet west of the mailbox which clearly shows the mailbox, the grass below it, and the road beyond. Another, taken four hundred eighty-three feet west of the mailbox, clearly shows the mailbox and a man, said to be kneeling, at a point seventy-five feet east of the mailbox, or five hundred fifty-eight feet from the camera position. All these pictures except Plaintiff’s Exhibit B, both by plaintiff and defendant’s photographers, were taken with the camera in the position of what the photographers conceived to be the eye level of a man sitting in a car. Respondent argues that such do not necessarily show the distance that car lights would reveal an object on the road if the object was on a down slope and the approaching car was coming up an incline. With this we agree, but plaintiff’s testimony puts somewhat in doubt whether or not the cattle were crossing the road at or near the extreme top of the rise. The mailbox is not as large, nor as wide, nor as long, as a cow; and a series of cross-moving objects (cows) should ordinarily be more susceptible of discernment than a stationary one. If plaintiff failed to keep a careful lookout for objects ahead of him upon the road and this failure contributed to the collision, he was guilty of contributory negligence. He is charged with having seen what he should have seen. See v. Kelly, Mo.App., 363 S.W.2d 213, and cases at 216; Hendrickson v. Resnik, Mo.App., 390 S.W.2d 610, 616; West’s Missouri Digest, Automobiles, ^ 150. And if he failed to see what he should have seen in time to stop or slow his automobile with reasonable safety to himself in time to avoid the collision, he was guilty of contributory negligence. Failure to keep a lookout may be inferred from the facts and circumstances appearing in the case. Kitchen v. Wilson, Mo., 355 S.W.2d 38, 40; see Miller v. St. Louis Public Service Co., Mo., 389 S.W.2d 769, supra; and cases at West’s Missouri Digest, Automobiles, 246(19,20). Constitutive elements of negligence and causal connection may be legally supported by circumstantial as well as by direct evidence. Brooks v. Terminal Railroad Ass’n, Mo.App., 276 S.W.2d 600(3); Genova v. Kansas City, Mo.App., 254 S.W.2d 38(2); Miller v. Fink, Mo.App., 387 S.W.2d 173(4). The jury has the right to disbelieve the plaintiff even though his evidence is not rebutted. Sykes v. Stix, Baer & Fuller Co., Mo.App., 238 S.W.2d 918, 919, and cases cited. And we think it was not required to accept plaintiff’s estimate of speed and sight distance. Anderson v. Duckworth, Mo., 383 S.W.2d 726, and cases at 728; Miller v. Fink, Mo.App., 387 S.W.2d 173.

Whether the failure to keep a lookout at any time or place constitutes negligence depends upon the conditions and circumstances and is usually a jury question (Slaughter v. Myers, Mo., 335 S.W.2d 50, 54; Henrickson v. Resnik, Mo.App., 390 S.W.2d 610[12]), as all negligence is ordinarily a question for the jury. It is always so where different minds might reasonably draw different conclusions and inferences from the evidence.

We do not say that plaintiff was guilty of negligence which contributed to cause the collision as a matter of law, but we do believe that, under the whole evidence in this case, the jury was entitled to pass on that question. The refusal of defendant’s Instruction No. 5 denied them the opportunity of doing so. This we think was prejudicial error, and for such reason the case must be reversed and remanded. So ordered.

STONE and HOGAN, JJ., concur.

      . Douglas v. Farrow, Mo., 334 S.W.2d 234, 238; Martin v. Effrein, 359 Mo. 1150, 225 S.W.2d 775, 778; Snider v. King, Mo. App., 344 S.W.2d 265, 277; Schonlau v. Terminal R. Ass’n of St. Louis, 357 Mo., 1108, 212 S.W.2d 420, 423.

      . Pullam v. Moore, 204 Mo.App. 697, 218 S.W. 938; Anderson v. Dail, 224 Mo.App. 403, 21 S.W.2d 496, 498; see Carr v. Threlkeld, Mo.App., 31 S.W.2d 592, supra; Shelton v. Rudd, Mo.App., 242 S.W. 151; Tucker v. Carter, Mo.App., 211 S.W. 138.

      . Brandt v. Thompson, Mo., 252 S.W.2d 339, 341; Boone v. Richardson, Mo.App., 388 S.W.2d 68, 74; Freeman v. Myron Green Cafeterias Co., Mo., 317 S.W.2d 303 (7); Hamilton v. Ross, Mo., 304 S.W.2d 812(2); Wilson v. White, Mo.App., 272 S.W.2d 1(8); Taylor v. Hitt, Mo.App., 342 S.W.2d 489(8); Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14(1).


source: Caselaw Access Project

author: STONE, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Respondent, v. COUNTY OF CAMDEN and Arthur E. Harper, Defendants, Edith Nelson, Intervener-Appellant.
    No. 8332.
    Springfield Court of Appeals. Missouri.
    Aug. 23, 1965.

      Claude T. Wood, Richland, for inter-vener-appellant.
    Robert L. Hyder, Joe Bill Carter, Jefferson City, for plaintiff-respondent.
   STONE, Judge.

The State Highway Commission of Missouri (hereinafter called the Commission), as plaintiff, instituted this action on March 23, 1961, against the County of Camden (hereinafter called the County) and Arthur E. Harper, the county treasurer, as defendants, to recover $1,700.48, the balance in the Hurricane Deck Toll Bridge Account (sometimes referred to in the record as the Toll Bridge Revenue Bond and Interest Sinking Fund Account and hereinafter simply called the account) in which all tolls derived from operation of the Hurricane Deck Toll Bridge (hereinafter referred to as the bridge or as the toll bridge) had been deposited prior to discontinuance of tolls on or about April 1, 1953. On January 25, 1964, Edith Nelson (hereinafter called the intervener), who had been county treasurer of Camden County throughout the period from January 1, 1943, to April 1, 1953 (and for several years thereafter), by leave of court filed her amended intervening petition in which she claimed the balance of $1,700.-48 in the account which (as she pleaded) “now remains in the hands of [defendant Arthur E. Harper] the present county treasurer of Camden County” and prayed that the court order payment thereof to her individually. Upon plaintiff Commission’s motions thereafter filed, the court entered summary judgment dismissing the amended intervening petition of Edith Nelson and directing defendants, County of Camden and Arthur E. Harper, to pay to the Commission the balance of $1,700.48 in the account. After an unavailing motion to amend the judgment or for a new trial, in-tervener perfected this appeal.

Prior to the filing of briefs, counsel joined in a written “stipulation” to transfer the case to the Supreme Court of Missouri on the ground that this is a civil case to which a county is a party. Art. V, Sec. 3, Mo.Const. of 1945, 2 V.A.M.S. However, appellate jurisdiction may not be conferred even by express consent [Mack v. Mack, Mo., 281 S.W.2d 872, 873 (1); Morrow v. Caloric Appliance Corp., Mo.App., 362 S.W.2d 282, 283(1); Collier v. Smith, Mo.App., 292 S.W.2d 627, 630-631(4)]; and, with our preliminary consideration leaving us in doubt concerning appellate jurisdiction, we treated the stipulation of counsel as a motion to transfer to be taken with the case. In the jurisdictional statement in intervener’s brief [V.A. M.R. Rule 83.05(b)], counsel adhered to the view that this case is within the exclusive appellate jurisdiction of the Supreme Court; but, after frankly acknowledging that they had been “on both sides of the [jurisdictional] question,” counsel for the Commission expressed the belief in their brief that the appeal properly had been lodged in this court. With appropriate respect for, but without regard to, the (presently-conflicting) opinions of capable counsel, we make independent inquiry as to our jurisdiction.

In their joint answer, defendants County of Camden and Arthur E. Harper, the county treasurer, stated “that the defendants disclaim any ownership of the funds in question and have not withheld said funds from the plaintiff [Commission] because of any claim of ownership, but have not paid said funds over to the plaintiff because these defendants have not been able to ascertain the lawful owner thereof by reason of the fact that, both plaintiff and the said Edith Nelson [intervener] claim to be entitled to said funds.” After dismissal of intervener’s amended petition and entry of judgment, defendants filed no after-trial motion and did not appeal. Thus, although sued as a party defendant, the County by its answer assumed a position akin to that of an interpleader. Cf. Johnson County v. Bryson, 27 Mo.App. 341, 350(3). And, upon entry of judgment denying intervener’s claim and awarding the balance in the account to the Commission, the County by its subsequent course of inaction removed itself from the case and is no longer “a party to the record” [State ex rel. Heath v. County Court for New Madrid County, Mo., 324 S.W.2d 662, 663(3)] for appellate jurisdictional purposes. Witt v. City of Webster Groves, Mo., 383 S.W.2d 723, 725(1). In this connection, see Barrett v. Stoddard County, Mo.App., 183 S.W. 644, 648(13); Barrett v. Stoddard County, 272 Mo. 129, 134-135, 197 S.W. 914, 915. The motion to transfer is denied and we proceed to the merits of the appeal.

On July 16, 1934, the County entered into “a loan and grant agreement” with the United States of America, pursuant to which the County, so authorized by legislative enactment [Laws of 1933-34, 1st Ex.Sess., p. 115; now Secs. 234.210 and 234.220], issued and sold to the United States (which, in turn, sold to the Reconstruction Finance Corporation, a governmental agency) four per cent serial funding bonds known as County of Camden Toll Bridge Revenue Bonds (hereinafter called the bonds) in the aggregate principal amount of $512,000, and the United States made a grant of $143,513.23 to the County. (Except as otherwise specifically stated, all statutory references are to RSMo 1959, V.A.M.S.) The proceeds of this loan and grant were used by the County for construction of the Hurricane Deck Toll Bridge across the Lake of the Ozarks on Missouri State Highway No. 5 in Camden County. Pursuant to statutory authorization [Laws of 1933-34, 1st Ex.Sess., p. 116; now Sec. 234.220(3)], the County pledged the revenue derived from the bridge to retire the bonds by giving a lien on such revenue to the bondholders. Upon completion of the bridge, the County operated and maintained it, deposited all revenues derived therefrom in the account, and paid by county warrants drawn on that account all expenses incident to operation and maintenance of the bridge.

On March 31, 1947, the judges of the county court purported to enter into a contract with intervener Edith Nelson to pay her $2,500 “as compensation for services theretofore rendered by [her] as custodian of the revenue derived from the operation of said toll bridge at the rate of $50 per month from January 1, 1943, to March 1, 1947,” during all of which period she had been county treasurer. Thereafter, to wit, on June 25, 1947, Reconstruction Finance Corporation, the owner and holder of the bonds (which had been in default continuously since January 1, 1935, the first interest payment date), as plaintiff, instituted a civil action, docketed and hereinafter referred to as Case No. 332, in the United States District Court for the Western District of Missouri, against the judges of the county court and Edith Nelson, county treasurer, as defendants, in which case plaintiff RFC sought a decree directing defendants to restore to the account the aforesaid sum of $2,500 and enjoining the judges of the county court from paying, or authorizing the payment of, any sum to defendant Nelson, the county treasurer, for services rendered in connection with keeping or disbursing revenues derived from operation of the bridge.

Upon trial of Case No. 332, the court found and declared that, in the construction and operation of the bridge, the County exercised a governmental function; that the tolls collected in operation of the bridge were “public funds,” which defendant Nelson was required “by virtue of her office to receive, keep and disburse” [see Sec. 54.100]; that, as county treasurer of Camden County, then a county of the fourth class [Laws of 1945, p. 1801; now Sec. 48.020], defendant Nelson was paid a stated salary fixed by statute, which also provided that “salaries set out and prescribed in this section shall be in lieu of any other or additional-salaries, fees, commissions or emoluments of whatsoever kind for county treasurers . . .” [Laws of 1945, p. 1541; now Sec. 54.270] ; that Art. VI, Sec. 11, Mo.Const. of 1945, required that “ . the compensation of all county officers shall be prescribed by law uniform in operation in each class of counties”; and that defendant Nelson was “not entitled to receive any salary, fee or compensation” for services rendered in keeping or disbursing revenues derived from operation of the bridge. The court entered a decree as prayed by plaintiff RFC, which became final without an appeal. This and the last two preceding paragraphs are digested from a certified copy of the file in Case No. 332, made a part of the record without objection at the hearing on plaintiff’s motion to dismiss intervener’s amended petition.

Plaintiff’s petition in the instant case alleged, and defendants’ answer admitted, that on or about February 5, 1953, the judges of the county court and “various other public officials and citizens” of the County appeared before the Commission and requested it “to take steps to acquire all the outstanding indebtedness against [the] bridge . . . at a cost to the Commission in the amount of $476,169” and that the county court then agreed that, if the Commission acquired the “outstanding bonds,” the County would convey the bridge to the Commission and also would pay to the Commission “all the funds in the Hurricane Deck Toll Bridge account after payment of all lawful obligations against said bridge account.” Plaintiff’s petition further alleged, and defendants’ answer also admitted, that the Commission did acquire all outstanding bonds at a cost of $476,169, and that thereafter a representative of the Commission met with the county court on or about March 18, 1953, at which time the county court entered an order conveying the bridge to the Commission and directing the county treasurer (intervener) to pay to the Commission (a) the sum of $38,754.62 at that time and (b) any balance in the account, “after payment of salaries, costs and lawful charges ... as soon as possible after April 1, 1953.”

In her amended intervening petition, in-tervener asserted that, on March 18, 1953, the chief counsel of the Commission met with intervener and the county court while the court was in “legal and open session”; that it then was agreed by and between the Commission acting by its chief counsel, the County acting by the county court, and intervener, “that in consideration of this intervener and the County . . . paying over the sum of $38,754.62 from the . . account to the . . . Commission, and in further consideration of this intervener consenting that said sum should be then and there paid over to the . . . Commission, that the county court . . . was thereby authorized by the . . . Commission ... to continue to operate said toll bridge for a period of some ten days [thereafter] . . . and that the revenue derived from the operation of said toll bridge during this period of some ten days was to be used by the county court . . . for paying the bills and claims against said toll bridge fund, arising from the operation of said toll bridge, as such bills and claims might be determined by the county court”; and that “it was expressly provided in the aforesaid agreement” that intervener’s claim for services “in connection with the operation of said toll bridge . . . was to be included as a bill and claim against said toll bridge fund in such amount as might be determined by the county court.”

Intervener then averred that, “pursuant to the agreement aforesaid,” the county court thereafter continued to operate the toll bridge until on or about April 1, 1953; that, when the “toll bridge operation was discontinued . . . the expenses of said operation were paid, except for the services of this intervener, the then county treasurer, who submitted to the county court a statement for services in connection with her work in collecting, auditing, accounting and disbursing the tolls, in the amount of $2,500, which said sum was duly approved, determined and allowed by the county court . . . to be paid out of the funds then remaining in the custody of the treasurer of Camden County pursuant [to] and in accordance with the aforesaid agreement”; that, however, no portion of intervener’s “bill” of $2,500 was paid; and that, by reason of the foregoing, intervener was entitled to receive the balance of $1,700.48 in the account. .

In intervener’s after-judgment motion to amend the judgment or for a new trial, the theory of her amended intervening petition was said to be that it “affirmatively shows that on or about the 18th day of March, 1953, the plaintiff [Commission], the defendants [County and intervener as county treasurer], and the intervener [individually] effected a full and complete compromise and settlement of a disputed claim and the amended intervening petition seeks to enforce said compromise and settlement, and the court therefore erred in dismissing the amended intervening petition.” Nothing of that purport is found in intervener’s appellate brief. Rather, her theory here is, in essence, that “an entirely new agreement” by and between the Commission, the County and herself (hereinafter referred to as the new agreement) was made on March 18, 1953, when the bridge was conveyed to the Commission; that, under the new agreement, intervener rendered “extra services . . . for the Highway Department [the Commission] from March 18, 1953, to April 1, 1953, [which] were in no way germane to the duties of her office” as county treasurer; that, by the new agreement, “Camden County was to operate the bridge from March 18, 1953, until April 1, 1953, and out of the revenue derived from the operation during that period of time, the county court . . . was given unrestricted discretion and authority to pay compensation to in-tervener-appellant for her extra services”; and that, since her bill in the sum of $2,500 for such “extra services” had been “approved, determined and allowed by the county court,” she was entitled to the balance of $1,700.48 in the account which (so she emphasizes) “was not county money” but was money that had “accrued while the bridge belonged to respondent [the Commission] .”

On their face, the foregoing statements of theory suggest that intervener may have switched ponies in the middle of the judicial stream; and, since no principles are entrenched more firmly than that a party is bound on appeal by the position he took in the circuit court [Douglas v. Farrow, Mo., 334 S.W.2d 234, 240(6); Hildreth v. Key, Mo.App., 341 S.W.2d 601, 613(24)] and that an appellate court should review a case on the theory upon which it was presented nisi [Olsten v. Susman, Mo., 362 S.W.2d 612, 614(3); Hood v. M.F.A. Mutual Ins. Co., Mo.App., 379 S.W. 2d 806, 814(14)], intervener reasonably might be held here to the theory stated in her motion to amend the judgment or for a new trial, i. e., that her amended intervening petition seeks to enforce a “compromise and settlement of a disputed claim.” However, since the record as a whole does not permit us to say with assurance that intervener did not, in the circuit court, also urge the theory here advanced, we resolve the doubt in favor of determination of the appeal on that theory.

Under her present theory, intervener’s alleged right to the balance of $1,700.48 in the account is predicated on the new agreement alleged to have been made on March 18, 1953, when the bridge was conveyed to the Commission. The salient provisions of the new agreement were that the County would operate the bridge, then owned by the Commission, as a toll bridge during the period from March 18 to April 1, 1953, and that the county court “was given unrestricted discretion and authority” by the Commission to pay, out of the revenue derived from operation of the toll bridge for that fourteen-day period, compensation to intervener for her “extra services” during that same period. And the argument of intervener’s counsel runs along the line that, under the new agreement, the judges of the county court “acted only as agents for the State Highway Commission”; that “it is quite clear that the funds involved in this litigation [the balance ' of $1,700.48 in the account] are and were the funds and property of the State Highway Commission”; that, “since these were not county funds [and] were not part of the business of Camden County,” intervener, then county treasurer, “had no obligation nor official duty” with respect thereto and “the extra services rendered by intervener in keeping the books, collecting the revenues, and making the audit for the Highway Department from March 18, 1953, to April 1, 1953, were in no way germane to the duties of her office”; and that “her extra services for that period” were compensable in “the sole and unrestricted discretion” of the county court.

Intervener vigorously insists that payment of compensation to her under the new agreement is not barred by the decree of the United States District Court in Case No. 332; and, for the purposes of this opinion, we assume (without, however, so deciding) that intervener’s alleged right of recovery is not precluded by application of the doctrine of res judicata, thus putting aside the joint invitation of opposing counsel to join them in an unnecessary and unrewarding safari into that legal jungle. For, passing the Commission’s (here immaterial) denial, dehors the record, of the new agreement, we are unable to escape the conclusion that, as counsel for the Commission contend, any such agreement would have been without and beyond the power and authority of the Commission and thus would have been ultra vires and void in the sense that it would have been ineffectual to create legal rights and obligations [Donovan v. Kansas City, 352 Mo. 430, 441, 175 S.W.2d 874, 879, modified 179 S.W.2d 108, appeal dismissed 322 U.S. 707, 64 S.Ct. 1049, 88 L.Ed. 1551], and that intervener could not enforce any alleged right to compensation springing from, and depending upon, the alleged new agreement.

Created by legislative enactment and clothed with powers therein defined, the State Highway Commission is a public entity which is a subordinate branch of the executive department of the state. Bush v. State Highway Com’n. of Missouri, 329 Mo. 843, 853, 46 S.W.2d 854, 858(2); Manley v. State Highway Com’n., Mo.App., 82 S.W.2d 619, 620. The Commission is vested with such powers as are specifically conferred by Art. IV, Secs. 29 and 30, Mo. Const, of 1945, and by Chapters 226 and 227, RSMo 1959, of which we take judicial notice [State ex rel. State Highway Com’n. of Missouri v. Allison, Mo. (banc), 296 S.W.2d 104, 106(1)], and those powers necessary or proper to enable the Commission to carry out fully and effectively the purposes of those constitutional and statutory provisions. Sec. 226.020; State ex rel. St. Louis County v. State Highway Com’n., 315 Mo. 707, 711, 286 S.W. 1, 2(2).

Our Supreme Court, en banc, has said that: “The building or acquiring of toll bridges by the state, if authorized, is a legislative function. The Legislature, and it alone, has authority to say whether or not the state shall acquire or build toll bridges.” State ex rel. Jones v. Brown, 338 Mo. 448, 456, 92 S.W.2d 718, 721(3). And we would add that the same must be true with respect to the operation of toll bridges. Counsel have not cited, and our independent search has failed to reveal, any constitutional or statutory provision which conferred upon the Commission the authority to operate the bridge under consideration as a toll bridge or from which such authority might have been fairly and reasonably implied. Believing and holding (as we do) that the Commission had no authority to operate the bridge as a toll bridge, obviously it could not, by contract, have authorized the county court to do that which the Commission itself could not have done.

And, even if the Commission properly could have authorized operation of the bridge as a toll bridge, it could not have entered into a valid contract that the revenue derived from such operation, which (so intervener states) “was not county money” but “were the funds and property of the . » . Commission,” could be deposited in, and disbursed from, the Hurricane Deck Toll Bridge Account by intervener, either as county treasurer or in her individual capacity. For, the funds in which state highway monies may be deposited are created and set up by Sections 226.200, 226.210 and 226.220, and the state treasurer is the lawful custodian of those funds. Art. IV, Sec. 15, Mo.Const, of 1945; Sec. 30.170. Where a statute “ ‘limits the doing of a particular thing in a prescribed manner, it necessarily includes in the power granted the negative that it cannot be otherwise done.’ Keane v. Strodtman, 323 Mo. 161, 18 S.W.2d 896, 898.” Lancaster v. County of Atchison, 352 Mo. 1039, 1046, 180 S.W.2d 705, 709(6).

Nor could the Commission have granted to the county court “unrestricted discretion and authority to pay compensation to intervener-appellant for her extra services” in handling and disbursing tolls collected in operation of the bridge. For, Art. Ill, Sec. 39, Mo.Const, of 1945 [formerly Art. IV, Sec. 48, Mo.Const, of 1875], provides that “[t]he general assembly shall not have power . . . (4) To pay or to authorize the payment of any claim against the state or any county or municipal corporation of the state under any agreement or contract made without express authority of law . . . ”; and, as interpreted and applied in cases involving claims against the Commission, this constitutional limitation precludes payment of any such claim under an unauthorized contract or outside the terms of a legal contract. Spitcaufsky v. State Highway Com’n of Missouri, 349 Mo. 117, 122-123, 159 S.W.2d 647, 651(1,2). See also Sager v. State Highway Com’n, 349 Mo. 341, 346, 160 S.W.2d 757, 759(1).

The general rule (exceptions to which are not material here) is that the law will leave parties to an illegal agreement in the position in which they put themselves, refusing affirmative relief to. either. Temperato v. Horstman, Mo., 321 S.W.2d 657, 666(12); Donovan v. Kansas City, supra, 352 Mo. at 440, 175 S.W.2d at 878(3); Hall v. Bucher, 240 Mo.App. 1239, 1242, 227 S.W.2d 96, 98(2). Otherwise stated, the courts will not enforce an illegal agreement or recognize rights as springing therefrom. 17 Am.Jur.2d, Contracts, § 216, p. 584. Since the new agreement of March 18, 1953, on which instant intervener rests her claim, clearly was illegal, she was entitled to no relief predicated on that agreement, and her amended intervening petition properly was dismissed.

On this appeal, we are concerned only with errors prejudicial to and preserved by intervener, the sole appellant. Schee v. Schee, 319 Mo. 542, 4 S.W.2d 760, 761(1); Summers v. Cordell, Mo., 187 S.W. 5, 8(4); In re Aiken, 262 Mo. 403, 412, 171 S.W. 342, 344(1). Her claim properly having been denied, intervener is in no position to complain of the judgment in favor of the Commission and against the County and the present county treasurer, neither of whom appealed. Arrington v. McCluer, 326 Mo. 1011, 34 S.W.2d 67, 73(7); Harrison v. Harrison, Mo.App., 339 S.W.2d 509, 517(13); Jennings v. First Nat. Bank of Kansas City, 225 Mo.App. 232, 30 S.W.2d 1049, 1054(16). See Boatmen’s Nat. Bank of St. Louis v. Rogers, 352 Mo. 763, 179 S.W.2d 102, 107(9); Dickinson v. Gault, Mo.App., 229 S.W.2d 283, 284(1).

The motion to transfer for want of appellate jurisdiction is denied and the judgment is, in all respects, affirmed.

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

      . But authority to charge an electric utility for use of a bridge to which the utility attaches its transmission lines may not be implied from statutory authority [§ 227.240] to control and supervise location and removal of such lines [State ex rel. State Highway Com’n. v. Union Elec. Co. of Missouri, Mo.App., 142 S.W. 2d 1099; State ex rel. State Highway Com’n. v. Kansas City Power & Light Co., 232 Mo.App. 308, 105 S.W.2d 1085]; and the power to “construct” so-called “refund roads” does not include the power to select or designate their routes. State ex rel. St. Louis County v. State Highway Com’n., 315 Mo. 707, 286 S.W. 1.

      . In this connection, we note that our Supreme Court, again speaking en banc, has pointed out that the “twofold purpose” of the statutes under which the county issued bonds to finance construction of the bridge [Laws of 1933-34, 1st Ex. Sess., p. 115; now Secs. 234.210 and 234.220] was “[f]irst, to provide for public acquisition or construction of bridges . . . and, second, to make such bridges toll-free as soon as possible.” State ex rel. St. Charles County v. Smith, 348 Mo. 7, 15, 152 S.W.2d 1, 6(1), 135 A.L.R. 625. It appears that purchase by the Commission of the three toll bridges under discussion in State ex rel. State Highway Com’n. v. Thompson, 331 Mo. 321, 53 S.W.2d 273, made those bridges toll-free, for the three dissenting justices thought that the Commission lacked authority to purchase the bridges although they recognized that it “would doubtless be a great convenience and saving to the traveling public using the three bridges if they could immediately become toll-free properties of the state . . . .” 331 Mo. at 336, 53 S.W.2d at 280. See also State ex rel. Kansas City v. State Highway Com’n., 349 Mo. 865, 163 S.W.2d 948, where the conveyance of a toll bridge to the Commission gave to the public “the right to cross the bridge at any time without paying toll . . . .” 349 Mo. at 876, 163 S.W.2d at 953.


author: PER CURIAM.

text:
    Linda RITTER, Plaintiff-Respondent, v. Charles W. RITTER, Defendant-Appellant.
    No. 8409.
    Springfield Court of Appeals. Missouri.
    Aug. 20, 1965.

      Roy Coyne, Joplin, for defendant-appellant.
    Elroy S. Thomas, Joplin, for plaintiff-respondent.
   PER CURIAM.

This is a divorce and custody case. Plaintiff wife’s petition was based on indignities in physical and verbal abuse, use of intoxicants to excess, and harassment of plaintiff and the children. It prayed for custody of the two children (a boy age nine and a girl age three at time of trial). Defendant husband answered by denial, and with a cross-petition alleging that plaintiff would leave the house at all hours day and night and leave the children; and that plaintiff had been associating with other (unnamed) men on different occasions without his consent. Decree was for divorce, custody, support for the children at twenty dollars per week, and alimony at five dollars per week, to plaintiff mother, with right of visitation of the children at reasonable times. Defendant has appealed.

We are first confronted with respondent’s motion to dismiss for failure to comply with Civil Rule 83.05 V.A.M.R. in regard to statement. A comparison of appellant’s statement with the transcript demonstrates that he has accorded considerable detail to testimony which he regards as favorable to the appellant and has given considerably less emphasis to that which is unfavorable to him. In some instances he has completely omitted such testimony, and in at least one instance he has, inadvertently we are sure, misquoted the testimony. We realize that earnest and sincere counsel, necessarily partisan, sometimes have an unconscious tendency to build mountains out of molehills in respect to evidence favorable to their clients and are inclined to make dunghills out of mountains of unfavorable evidence. This is understandable, but it should not be done in the statement portion of the brief. A statement which does not afford the appellate court an immediate, complete, and unbiased understanding of the facts and which does not fairly present the facts is pernicious in that it conveys in the first instance a distorted and imperfect impression. It renders the appeal subject to dismissal. In re Adoption of P.J.K., Mo.App., 359 S.W. 2d 360, 363; Glick v. Glick, Mo.App., 360 S.W.2d 333, 335; Markowitz v. University City, Mo.App., 335 S.W.2d 455. We consider the appeal subject to dismissal; but the custody (and hence the welfare) of infant children is involved, and for that reason we waive the rule.

Appellant’s entire brief is devoted to the weight of the evidence. Practically his whole argument is based on the claim of adultery as testified to by three men, two of whom are his cousins and the other a friend and associate who worked at the same place defendant did until he quit employment. These witnesses were defendant’s frequent hunting and fishing companions. As to this charge of adultery, it was not pleaded. It is our understanding that beginning with Stokes v. Stokes, 1 Mo. 320, and extended by our remarks in R. v. M., Mo.App., 383 S.W.2d 894(2), it is the law that adultery must be pleaded in respect to person, time, and place as nearly specifically as is within the means of the pleader; this in order to permit the person charged to-meet that issue and so prevent ambush on such a serious charge. This case demonstrates the justness of that rule. Plaintiff took defendant’s deposition, and he testified that plaintiff was cruel to the children because she locked them out of the house “when she is having relationship with men.” He was asked what men and his answer was, “I don’t know offhand.” He was asked, “When?” and his answer again was, “I don’t know that offhand.” Yet at the trial he produced the two cousins and the friend to testify as to (each) a single act of adultery. Nevertheless, no objection was made to this testimony and no motion of any kind was filed in respect to the pleadings.

Appellant takes particular exception to the remarks of the court when he took the case under advisement:

“I will take this matter under advisement and see. These people who testify to these things place the Court in a serious position, an ordinary individual who does have sexual intercourse with some other woman usually respects her enough not to say anything about it and the man who gets on the witness stand and tells about it is not a man to be admired very much, to say the least. And whether you can believe him or not I don’t know, as I say it places the Court in a serious position. Well, I’ll take it under advisement and I’ll let you know when I pass on it.”

We think it is unnecessary to wash all the dirty linen and hang it out to dry in public print. Suffice it to say that the whole evidence, including that offered by both plaintiff and defendant, reasonably justified the belief and finding that:

1. The defendant frequently and habitually drank intoxicating liquor to excess.

2. He has subjected his wife and at least one of his children to physical abuse which includes, among other things, striking and kicking with his boots.

3. He has repeatedly cursed his wife in the presence of the children.

4. He has subjected one of the children to such indignities and abuse that, if such were permitted to continue, it might endanger the mental and psychological development of such child.

5. He has withheld medical attention from one of the children.

6. Since the separation of the parties, he has defaulted in payment of amounts ordered for support. He has voluntarily quit his employment and has not attempted to secure other employment, and he has assigned all of his personal assets to his father, for a nominal consideration. The evidence justifies the belief that all this has been.done in order to defeat and avoid payment of support for his family.

7. He has a child by a former marriage to which he contributes nothing.

8. The evidence further justifies the belief that he has conspired with three men, at least two of whom rendezvoused with him at a bar in the evenings. That conspiracy was to destroy the wife’s reputation and defeat her action in carrying out a promise or threat he had made to his wife when she informed him of her intention to separate. The testimony of each of those relative-friends is as to (each) a single act of sexual intercourse. Two of these were said to be when a child was present in the house. As to the other, the witness was unable to name the place.

We do not wish to encumber this opinion by pointing out the various inconsistencies, conflicts, and improbabilities in the testimony of those three self-declared betrayers. Suffice it to say that the trial judge was justified in believing them to be liars and perjurers; and, under the circumstances of this case, his remarks were remarkably restrained.

Adultery must be proved by good and sufficient evidence (see Ellebrecht v. Ellebrecht, Mo.App., 243 S.W. 209).

As we said in R. v. E., Mo.App., 364 S.W.2d 821, at 828:

“In determining this case the final responsibility is ours; but, although the findings of the trial court do not bind us, we regard them with considerable deference. The written words in a cold record do not always convey the whole sense of meaning, depth, value, spontaneity, and sincerity as do the spoken words, with the gestures and manner accompanying them, in the sight and hearing of an experienced trial judge. Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118, 1120.”

See also Holmes v. Holmes, Mo.App., 251 S.W.2d 390(1); Lampman v. Lampman, Mo.App., 367 S.W.2d 28, 30; Kleinhammer v. Kleinhammer, Mo.App., 225 S.W.2d 377(3); Paxton v. Paxton, Mo.App., 319 S.W.2d 280, 282; Willett v. Willett, Mo.App., 196 S.W. 1058, 1060.

The judgment should be affirmed, but in the interest of the children it should be modified in one respect. Defendant is accorded the right to visit the children at reasonable times and places. “Reasonable” should be defined and limited so as to express the limitation that no time is “reasonable” when the appellant is under the influence of intoxicating liquor. As so modified the judgment is affirmed.

All concur.

      . The Willett ease is the only case cited in appellant’s brief.


text:
    STATE of Missouri ex rel. Rollo EMMONS, Relator-Appellant, v. Paul S. HOLLENBECK, Judge of the Probate Court of Maries County, Missouri, Defendant-Respondent.
    No. 8381.
    Springfield Court of Appeals. Missouri.
    July 2, 1965.
    Rehearing Denied July 27, 1965.
    Application to Transfer Denied Sept. 13, 1965.

      Northern & Crow, Rolla, for relator-appellant.
    Harold S. Hutchison, Vienna, Claude T. Wood, Richland, for defendant-respondent.
   STONE, Judge.

In this proceeding instituted in the Circuit Court of Maries County on January 27, 1964, Rollo Emmons, the relator, sought a writ of mandamus commanding the Honorable Paul S. Hollenbeck, Probate Judge of Maries County, the respondent, (a) to vacate the order theretofore entered by respondent on January 20, 1964, which had denied relator’s application for appointment of an administrator of the estate of Charles G. Duncan, deceased, a resident of Maries County who had died intestate on July 10, 1962, and (b) to appoint a suitable person as administrator of the estate of said decedent, against whom relator might institute a civil suit to recover damages for personal injuries alleged to have been sustained by him as a result of the negligent operation of a motor vehicle by Duncan in Phelps County on May 6, 1962. Section 537.020. (Except as otherwise specifically stated, all statutory references are to RSMo 1959, V.A.M.S.) Upon hearing, the circuit court denied the requested writ of mandamus and dismissed relator’s petition. The case comes to us upon relator’s appeal.

By petition originally filed on May 9, 1962, three days after the aforesaid accident, and thereafter “refiled” on May 28, 1962, Ermil Duncan, a son, sought appointment of a guardian for his father, Charles G. Duncan. Section 475.060. In that petition, it was stated, inter alia, that Charles G. Duncan was a widower 75 years of age then living with his son Ermil in Maries County, that he was “incapable by reason of senility or other incapacity of managing his property and caring for himself,” that he was “at present ill and confined to a hospital,” and that he owned realty valued at $9,000 and personalty valued at $7,000. After a hearing on June 4, 1962, at which Charles G. Duncan was present in person and represented by counsel [Section 475.-075], the probate court found that he was an incompetent, appointed his son Ermil as guardian [Section 475.090], and upon the filing and approval of a bond [Section 475.100] issued letters of guardianship to Ermil on the same date. Thereafter, notice of Ermil’s appointment as guardian was duly published once a week for four consecutive weeks [Section 475.140], the first publication of such notice having been on June 7, 1962.

While under guardianship, Charles G. Duncan died intestate on July 10, 1962. No letters of administration were issued [Section 473.110], and there was no application for letters prior to the filing of instant relator’s application in the probate court on January 20, 1964. However, the guardianship estate was held open after the ward’s death; and on March 18, 1963, nine months and eleven days after the first publication of notice of the appointment of Ermil as guardian, he filed a “petition” in the probate court in which he averred, inter alia, that “to the best of his knowledge and belief the incompetent died leaving no debts other than those payable under sub-section 1 of Section 475.320” and that he (Ermil) believed that “it would be to the best interest to (sic) the estate and to the heirs-at-law of Charles G. Duncan, deceased, that no letters of administration be granted upon his estate, and that the guardian, Ermil Duncan, be authorized, directed and empowered in accordance with Section 475.320 ... to administer as herein provided, and after final settlement of the guardian is approved and all obligations of the estate paid, distribution be made to the heirs in the same manner with the same effect as in the case of an administrator.” On the date of the filing of said petition, i. e., on March 18, 1963, the probate court entered an order which included findings to the same effect as the above-quoted averments in the guardian’s petition and then “adjudged and decreed that no letters of administration be granted under (sic) the estate of Charles G. Duncan, incompetent, now deceased, and that the guardian of the estate of Charles G. Duncan, incompetent, is hereby authorized and directed to administer on said estate and to make distribution to the heirs at law of Charles G. Duncan, deceased, in accordance with Section 475.320.”

On November 12, 1963, the probate court entered an order captioned “Final Settlement Approved, Finding and Order of Distribution (Intestate Estate),” undertaking to adapt for use in the guardianship estate under discussion a printed form so captioned for use in decedents’ estates, which appears at 26 V.A.M.S. pp. 283-284 following Section 473.583. References to the “administrator” in the printed form were changed to “gdn.-adm.” or to “gdn.-ad-ministrator,” and the reference to “the letters of administration” in the second printed line of the fifth paragraph of the form [26 V.A.M.S. p. 284] was changed to “the letters of guardianship.” In the language of the printed form, this order recited that the court “takes up for consideration the final settlement and the verified petition for order of distribution, filed hereon (sic) on the 31 day of October, 1963, by Ermil Duncan, gdn.-administrat — . of the estate of Charles G. Duncan, deceased”; stated that the final settlement, showing that “the gdn.-adm. has on hand $4342.14 in cash” and no other personal property, had been audited and approved; contained findings in the language of the printed form, including the adapted finding in the fifth paragraph “that there was due publication according to law, of notice of the letters of guardianship granted herein to the aforesaid gdn.-adm. and that the first publication of such notice was on June 7, 1962”; and ordered that the personal property, to wit, the aforesaid sum of $4,342.14, be distributed to the six children, share and share alike, and that title to certain described real estate be vested in them. “Notice of Filing of Final Settlement and Petition for Distribution,” in the form used in decedents’ estates, which appears at page 31 of the 1964 cumulative pocket part to 26 V.A.M.S., had been published once a week for four consecutive weeks prior to' the filing of the final settlement. Section 473.-587. This notice was captioned “In the estate of Chas. G. Duncan, deceased,” was addressed “To all persons interested in the estate of Chas. G. Duncan, deceased,” and bore the printed signatures of “Ermil Duncan Administrator” and his attorney. The transcript does not include the final settlement and the petition for order of distribution, and the record reflects no activity in the guardianship estate either (a) during the interval between the ward’s death on •July 10, 1962, and the filing of the guardian’s “petition” on March 18, 1963, seeking authorization “to administer on said estate” under Section 475.320, or (b) during the interval between March 18, 1963, and the filing of the final settlement on October 31, 1963.

On January 20, 1964, instant relator filed in the Probate Court of Maries County “Application of Interested Person for Appointment of Administrator” in which he averred, inter alia, that he had a claim for personal injuries “arising out of an act of negligence of the said Charles G. Duncan in the operation of his motor vehicle on the 6th day of May, 1962,” near Rolla in Phelps County, and prayed that the application “be set for hearing within fifteen days and notice of hearing served upon all persons entitled to administer the estate of the said Charles G. Duncan” [see Section 473.020] and that, after hearing, a “legal representative of the deceased” be appointed. See Section 537.020. Pursuant to notice, relator’s said application was heard in the probate court on January 20, 1964, and on the same date was denied. Institution of this mandamus proceeding in the circuit court followed shortly on January 27, 1964.

Relator’s position is that his cause of action for personal injuries alleged to have resulted from the negligence of Charles G. Duncan on May 6, 1962, could not have been prosecuted against the guardian, Ermil Duncan, after the ward’s death on July 10, 1962; that the nine-month non-claim statute applicable to “claims against the estate of an incompetent based on liabilities arising prior to the guardianship” [Section 475.210] did not run against relator’s cause' of action either (a) by reason of the guardianship estate being held open for more than nine months after the first publication on June 7, 1962, of notice of the guardian’s appointment or (b) by reason of the guardian’s “petition” of March 18, 1963, and subsequent proceedings under Section 475.320; and that relator is entitled, as a matter of right, to the appointment of an administrator of the estate of Charles G. Duncan, deceased, against whom relator may prosecute his cause of action for personal injuries. Section 537.-020.

On the other hand, respondent asserts, in his first point, that relator’s cause of action is barred by the nine-month nonclaim statute [Section 475.210] for relator’s “failure to exhibit his claim to the guardian within nine months after the date of the first publication of notice of appointment of guardian” (i. e., within nine months after June 7, 1962), and then adds, in his second point, that relator “was not entitled to the appointment of an administrator under Section 537.020 because his exclusive remedy was against the guardianship estate.” Although not within the apparent scope of either of the two stated points in his brief, respondent also argues, under the second point, that from and after March 18, 1963, when the probate court entered an order directing that no letters of administration be granted upon the estate of Charles G. Duncan and authorizing the guardian to “administer” under Section 475.320, the guardian became and was a “guardian-administrator” who was an “administrator” and thus a “personal representative” within the contemplation and meaning of Section 537.020, against whom relator properly might have asserted his cause of action at any time during the period “from March 18, 1963, until November 12, 1963,” when the final settlement of the “guardian-administrator” was approved.

However, in the final analysis the legal validity of respondent’s contention that relator’s cause of action is barred by Section 475.210 (the nine-month nonclaim statute) depends upon whether or not that nonclaim statute continued to run during the period from July 10, 1962, the date of the ward’s death, to March 18, 1963, the date of the order authorizing the guardian to proceed under Section 475.320. For, if the non-claim statute did not continue to run during that intermediate period from July 10, 1962, to March 18, 1963, the statutory period of nine months still would not have expired by November 12, 1963, the end date for which respondent here contends, since the initial period from June 7, 1962 (the date of the first publication of notice of the guardian’s appointment) to July 10, 1962, was one month and three days, the final period from March 18, 1963, to November 12, 1963, was seven months and twenty-five days, and (even if, contrary to our view, the nonclaim statute had run during that final period) the statute would have run only eight months and twenty-eight days to November 12, 1963.

In turn, whether the nonclaim statute continued to run during that intermediate period (and also during the final period) depends, as we shall see, upon whether or not Ermil Duncan, the guardian of Charles G. Duncan, became, after the latter’s death on July 10, 1962, the “legal representative” or “personal representative” of his deceased ward, against whom instant relator properly could have asserted his cause of action for personal injuries sustained in the accident of May 6, 1962. See Section 537.020. A plain, direct and complete answer to this question is found in the opinion of our Supreme Court, en banc, in Clarke v. Organ, Mo., 329 S.W.2d 670, 674(4), where it was said that “[sjince the enactment of these statutes [Section 537.-020 and its predecessor statutes], the executor or administrator of a deceased tort-feasor is the one and only defendant in an action such as this.” Instant respondent characterizes the quoted statement as “mere obiter dictum.” We do not so regard it; but, wholly aside from the quoted statement, we think the conclusion inescapable that a guardian does not become the “legal representative” or “personal representative” of his deceased ward within the contemplation and meaning of Section 537.020.

“‘[Pjersonal representative’ [as used in Section 537.020] is synonymous with legal representative which is a generic term denoting an administrator or executor of a deceased person,” and certainly a guardian is not an administrator or executor. We have not overlooked Section 475.320, upon which instant respondent leans heavily, which provides that, in certain cases (of which more anon), “the [probate] court, upon the death of any ward, may order that no letters of administration shall be granted upon his estate” and may order payment of specified expenses, taxes and obligations "out of the [guardianship] estate by the guardianthat, “after the final settlement of the guardian is approved, and upon a showing that all obligations of the estate which have been authorized by the court have been paid, the court shall order the guardian to make distribution to the heirs in the same manner and with the same effect as in the case of an administrator”; and that “[i]n such case the guardian is subject in all respects and to the same extent to the liabilities of an administrator and liability on the guardian’s bond continues and applies to the complete administration of the estate of the deceased ward.” And we recollect that Ermil Duncan boldly appropriated the title of “Administrator” in publishing “Notice of Filing of Final Settlement and Petition for Distribution” addressed “To all persons interested in the estate of Chas. G. Duncan, deceased,” and that, in the order approving that final settlement, instant respondent blandly referred to Ermil as a “guardian-administrator.” But Section 475.320 simply grants to the probate court the discretionary right, in certain cases, to “order that no letters of administration shall be granted,” and we perceive in the language of that statute no legislative purpose or intent to transmute the legal status of a guardian to that of an administrator. Nor can a guardian work such transmutation simply by arrogating to himself, or by inducing another to bestow upon him, the title of “administrator,” for even as “[t]hat which we call a rose by any other name would smell as sweet” [Romeo and Juliet, Act II, Sc. 2], a guardian under any other name remains the same.

Furthermore, it appears that Section 475.-320 itself contemplates the appointment of an administrator in a situation such as that here presented. Subsection 1 of the cited statute empowers the probate court, “[e]x-cept in cases mentioned in subsection 2,” (a) to “order that no letters of administration shall be granted,” (b) to authorize the guardian to pay certain specified items, to wit, (1) “the funeral and burial expenses,” (2) “inheritance and estate taxes for which the estate of the deceased ward is liable,” (3) “obligations of the ward incurred by the guardian,” and (4) “expenses of administration,” and (c) “upon a showing that all obligations of the estate which have been authorized by the court have been paid ... to make distribution to the heirs . . Subsection 2 of the same statute provides that, “[w]henever a minor or incompetent dies leaving debts, other than those payable by the guardian under subsection 1, for which his estate would be liable in an action . . . letters . . . of administration shall be granted on the estate of the deceased ward, in the manner provided by law, as in case of other .. . intestates.”

The term “debts” is not defined either in Section 472.010, the general definitive statute in the probate code also applicable to guardianships [Section 475.020], or in Section 475.010, the definitive statute in the guardianship chapter. In the absence of a statutory definition, we determine the meaning of that term, as used in subsection 2 of Section 475.320, from the context in which, and the apparent intent with which, that term is used, having appropriate regard for the subject matter and manifest purpose of the legislative enactment. So considered, we believe that “debts” is the substantial equivalent of “claims,” which is defined in Section 472.010(4) as including “liabilities of the decedent which survive whether arising in contract or in tort or otherwise, funeral expenses, the expense of a tombstone and costs and expenses of administration.”

A perspicacious writer in this field treats “debts” as being synonymous with “claims” in his appropriate and incisive comments concerning Section 475.320: “By its terms the present section is not applicable when the ward dies leaving debts for which his estate would be liable in an action at law, other than funeral and burial expenses and inheritance and estate taxes, and obligations of the ward incurred by the guardian and expenses of administration. The practical application of this section meets with many difficulties. . . . The estate of a ward may be liable not only for claims arising subsequent to guardianship which were created by the guardian, but also in certain instances for claims created by the ward, particularly tort claims. The above section authorizing the probate court to dispense with administration upon a deceased ward’s estate is limited to cases where such claims do not exist. However, no procedure is prescribed whereby a conclusive determination of the existence of such claims may be had. . . . It is extremely doubtful if an order of the probate court in a guardianship proceeding declaring that the deceased ward left no claims, left no will and determining who his heirs arc and directing distribution to them is a determination conclusive upon interested parties who did not participate in such a determination.” 5 Maus, Probate Law and Practice, § 1986, pp. 332-333.

Therefore, it would seem that Section 475.320 was not applicable in the situation under discussion and did not authorize an order dispensing with administration upon the estate of the deceased ward. And, with no showing that instant relator had actual notice o. knowledge of the proceeding under Section 475.320 or that he in any way participated therein, we are of the opinion that the purported determination in the order of the probate court that the ward “died leaving no debts other than those payable by the guardian under subsection (1) of Section 475.320” was not conclusive upon instant relator and was not made so by the guardian’s abortive publication (neither justified in fact nor authorized in law) of “Notice of Filing of Final Settlement and Petition for Distribution,” in which he professed to act as the “administrator” of “the estate of Charles G. Duncan, deceased.” In any event, the purported proceeding under Section 475.-320 did not work a change in Ermil’s status from that of guardian to that of “administrator.”

There are other persuasive reasons for our conclusion that guardian Ermil did not become a “legal representative” or “personal representative” of his deceased ward, against whom instant relator properly could have asserted his cause of action for personal injuries. Section 475.290, subsection 1, imposes the unequivocal requirement that “[g]uardians shall make final settlement of their guardianship at a time fixed by the court, either by rule or otherwise, within sixty days after termination of their authority.” This statutory command obviously contemplates prompt settlement of the guardian’s accounts and authorizes no delay in the guardian’s final settlement either in order that the nine-month nonclaim statute [Section 475.210] might run against claims or in order that litigation might be instituted against the guardian and pursued to a conclusion prior to his final settlement.

Reversing the practice prior to the Probate Code of 1955, subsection 1 of Section 475.260 now directs that “. . . all actions between the ward or the guardian and third persons in which it is sought to charge or benefit the estate of the ward shall be prosecuted by or against the guardian of the estate as such”; but subsection 2 of the same statute significantly provides that “ . . .if the ward dies, his personal representative may be substituted . . It thus is made apparent in the guardianship chapter [Chapter 475] that the general assembly did not regard a “guardian” as the “personal representative” of a deceased ward; and we think it reasonably inferable that the general assembly did not contemplate or intend that, after the ward’s death, litigation should be instituted or prosecuted against the guardian on alleged liabilities of the ward.

Instant respondent relies upon In re Alexander’s Estate, Mo., 360 S.W.2d 92, and Greever v. Barker, 204 Mo.App. 190, 223 S.W. 1087. In each of those cases, claims against the ward’s estate based on liabilities arising prior to guardianship were barred by the running of the then applicable nonclaim statute prior to the ward’s death. Neither case involved a factual situation analogous to that here presented where the ward died before the nonclaim statute had run, and neither opinion reached or discussed the legal questions determinative of the instant case.

In Hofmann v. Sawyer, 227 Mo.App. 149, 50 S.W.2d 674 (not cited by counsel), where the ward died less than six months after the guardian’s appointment and before the then applicable one-year non-claim statute had run, the court held that plaintiff’s claim for services rendered prior to guardianship was not barred by failure to present it to the guardian prior to the ward’s death [227 Mo.App. at 154-155, 50 S.W.2d at 675(1)]; that plaintiff could not have presented her claim to the guardian after the ward’s death [227 Mo.App. at 155-156, 50 S.W.2d at 676(3)]; and that, even if the court agreed (which it did not) with counsel for defendant administratrix that plaintiff was required to present her claim within the one-year period prescribed in the nonclaim statute, the running of the statute was interrupted or tolled during the period from the date of death of the ward to the date of appointment of the adminis-tratrix [227 Mo.App. at 155, 50 S.W.2d at 675(2)].

In Williams v. Vaughan, 363 Mo. 639, 651, 253 S.W.2d 111, 116 (likewise not cited by counsel), our Supreme Court, en banc, said that, upon the ward’s death, the “guardian was without further power except to settle his account and deliver the estate and effects of his ward to the ward’s personal representative,” the administrator of his estate; that “[0]/ course, it would have been improper for these respondents [claimants who had loaned monies to the guardian for the ward’s care] to have made a demand against the guardian after the death of his ward”) and that the administrator, who had “sole authority to represent the estate,” was a necessary and proper party to the action.

And in Trask v. Davis, Mo.App., 297 S.W.2d 792, 797(3), we said that, after the ward’s death, “the administrator or executor became the personal representative against whom the claim must be made.”

True, the Hofmann, Williams and Trask cases, supra (as well as the Alexander’s Estate and Greever cases, supra, cited by instant respondent), involved claims filed prior to the Probate Code of 1955 when, as the cases pointed out, the sole function of the guardian after the ward’s death was to settle his accounts and to deliver the estate and effects of the ward to his personal representative. But, under the Probate Code of 1955, the authority of a guardian still terminates upon the ward’s death subject only to the specific statutory exception “that if there is no person other than the estate of the ward liable for the funeral and burial expenses of the ward, the guardian may, with the approval of the court, contract for the funeral and burial of the ward after such death” [Section 475.285, subsec. 1, subd. (6)] and to the general statutory provision that “he shall continue to have such authority with respect to the [guardianship] estate as may be necessary to wind up his administration as such guardian, subject to the control of the court and to such limitations on such authority as the court may impose.” Section 475.285, subsec. 3. And, as has always been true, “[gjuardians and curators [still] are creatures of the law and are statutory officers of the probate court. Consequently, in the very nature of things, they [still] have no inherent powers, as such, but only such powers as are prescribed by statute . , ..” The relationship of guardian and ward still is necessarily terminated by the death of the ward and the guardian thereby is shorn of all powers excepting those specifically conferred by statute.

All of the foregoing leaves us in no doubt but that, after the death of his ward on July 10, 1962, guardian Ermil was not the “legal representative” or “personal representative” of such deceased ward, against whom instant relator properly could have asserted his cause of action for personal injuries sustained in the accident of May 6, 1962. That being true, unless and until an administrator of the estate of the deceased ward is appointed, there will be no one against whom relator properly could prosecute his said cause of action. And, so long as that situation exists, the nine-month nonclaim statute [Section 475.-210] will not run against relator. Whether or not, after appointment of an administrator of the decedent’s estate, relator’s cause of action might be barred by the running of the nonclaim statute applicable to claims against the guardianship estate [Section 475.210], is a question which we need not and do not probe or rule. However, Section 473.360(3) undoubtedly would bar relator’s cause of action “if administration of the [decedent’s] estate is not commenced within five years after the death of the decedent.”

Section 537.020, which provides for the survival of causes of action such as that which relator seeks to prosecute, created a substantive right [Mennemeyer v. Hart, 359 Mo. 423, 430, 221 S.W.2d 960, 963; Siberell v. St. Louis-San Francisco Ry. Co., 320 Mo. 916, 930, 9 S.W.2d 912, 917(16)] ; and, upon proper application by relator, “the issuance of letters of administration is mandatory.” State ex rel. McCubbin v. Ginn, Mo. (banc), 347 S.W.2d 119, 125. No question having been raised as to the form or sufficiency of relator’s application filed in the probate court on January 20, 1964, and it appearing to be proper in form and substance [Section 473.020], the granting of said application and the appointment of a suitable person as administrator of the estate of Charles G. Duncan, deceased, became mandatory.

Accordingly, it is the judgment of this court that the judgment of the Circuit Court of Maries County be set aside and for naught held, and that said circuit court be directed to issue forthwith. its peremptory writ of mandamus commanding respondent, as Probate Judge of Maries County, forthwith (a) to vacate the order entered by respondent on January 20, 1964, which denied relator’s application for appointment of an administrator of the estate of Charles G. Duncan, deceased, and (b) after notice and hearing pursuant to Section 473.020, to appoint some suitable person as administrator of said estate.

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

      . By reason of subsee. 1, “[clauses of action for personal injuries shall not abate ... by reason of the death of the person against whom such cause of action shall have accrued; but . . . such cause of action shall survive . . . against the person . . . liable for such injuries and his legal representatives . . . ”; and, by reason of subsec. 2, “ . . . [t]he existence of the right of action for . . . personal injury that does not result in death shall be sufficient to authorize and to require the appointment of a personal representative for the person liable for such . . . injury by the probate court upon his death upon the written application of any person interested in such right of action for . . . injury.” (All emphasis herein is ours.)

      . State ex rel. McCubbin v. Ginn, Mo. (banc), 347 S.W.2d 119, 125(7). See Casey v. Hoover, 197 Mo. 62, 94 S.W. 982, 983; Harris v. Bates, 364 Mo. 1023, 1027, 270 S.W.2d 763, 766(5); Oates v. Union Pac. Ry. Co., 104 Mo. 514, 516, 16 S.W. 487, 488; Trask v. Davis, Mo.App., 297 S.W.2d 792, 797(3).

      . See particularly Nudelman v. Thimbles, 225 Mo.App. 553, 559-560, 40 S.W.2d 475, 477(3), 477-478(6). Consult also Household Finance Corp. v. Robertson, Mo. (banc), 364 S.W.2d 595, 602; Union Electric Co. v. Morris, 359 Mo. 564, 569, 222 S.W.2d 767, 770; State ex rel. Case v. Seehorn, 283 Mo. 508, 528, 223 S.W. 664, 670(6); Garrard v. State Dept. of Public Health & Welfare, Mo.App., 375 S.W.2d 582, 590; State v. Bern, Mo.App., 322 S.W.2d 175, 177.

      . Although the term “debts” is more frequently employed in referring to liquidated demands, it is sometimes used in a broader sense, embracing unliquidated obligations arising in tort. See Nudelman v. Thimbles, supra, 225 Mo.App. at 559-560, 40 S.W.2d at 477-478(6); Des Arc Oil Mill Co. v. McLeod, 141 Ark. 332, 216 S.W. 1040, 1041(1); American Ice Cream Mfg. Co. v. Economy Laundry Co., 148 Ga. 624, 97 S.E. 678(2).

      . With certain limited exceptions hereinafter noted but not here important, the authority of a guardian is terminated by the death of his ward. Section 475.285, subsec. 1, subd. (6).

      . Title to the property of an incompetent ward is in the ward [Williams v. Maxwell, Mo., 82 S.W.2d 270, 274(10); Gibson v. Shull, 251 Mo. 480, 487, 158 S.W. 322, 324(3); Darr v. Darr, Mo.App., 287 S.W.2d 118, 120(5)]; and, under prior practice, an action on behalf of the ward was required to be prosecuted in his name by the guardian [Kleber v. Carlos, Mo., 202 S.W.2d 865, 866(4) ] and an action against him was required to be brought against him personally although defended on his behalf by his guardian. Judson v. Walker, 155 Mo. 166, 179, 55 S.W. 1083, 1085(1); In re Cordes’ Estate, Mo.App., 116 S.W.2d 207, 209; 5 Maus, Probate Law and Practice, § 1932, p. 283.

      . Insofar as Greever v. Barker, 204 Mo.App. 190, 223 S.W. 1087, reached the same result with respect to claims based on liabilities arising during guardianship, it has been overruled. In re Alexander’s Estate, Mo., 360 S.W.2d 92, 100. See Trask v. Davis, supra, 297 S.W.2d at 797, and Tock v. Tock, Mo.App., 120 S.W.2d 169, 172.

      . Williams v. Vaughan, 363 Mo. 639, 651, 253 S.W.2d 111, 116; Greever v. Barker, 316 Mo. 308, 289 S.W. 586, 588-589; Evans v. York, Mo.App., 216 S.W.2d 124, 128(7); Trask v. Davis, supra, 297 S.W.2d at 797(3); State ex rel. Pryor v. Anderson, Mo.App., 112 S.W.2d 857, 862, affirmed 343 Mo. 895, 123 S.W.2d 181; Section 458.550, RSMo 1949.

      . Scott v. Royston, 223 Mo. 568, 609, 123 S.W. 454, 466(10); In re Cordes’ Estate, Mo.App., 116 S.W.2d 207, 209(1). See 39 C.J.S. Guardian and Ward, § 1, l.c. 9; 25 Am.Jur., Guardian and Ward, § 60, p. 40; annotation 60 A.L.R.2d 963.

      . In re Thomasson, Mo., 159 S.W.2d 626, 629(7); State ex rel. Pryor v. Anderson, supra, 112 S.W.2d at 862(5); 39 C.J.S., Guardian and Ward, § 41, p. 61; 25 Am. Jur., Guardian and Ward, § 53, p. 37; annotation 60 A.L.R.2d 963.

      . Hofmann v. Sawyer, 227 Mo.App. 149, 155, 50 S.W.2d 674, 675(2);. Hinshaw v. Warren’s Estate, 167 Mo.App. 365, 368, 151 S.W. 497, 498. See Thompson v. Lyons, 281 Mo. 430, 452-453, 220 S.W. 942, 948(9); McKinzie, Admx. v. Hill, Admr., 51 Mo. 303, 305; Austin v. Shipman, 160 Mo.App. 206, 216-217, 141 S.W. 425, 428(4); Little v. Reid, 75 Mo.App. 266, 269-270.