author: HOLMAN, Commissioner.

text:
    Robert E. ALBRECHT and Lois Albrecht, his wife, et al., Appellants, v. STATE HIGHWAY COMMISSION of Missouri et al., Respondents.
    No. 49015.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 14, 1963.
    Tenney, Dahman & Smith, Edward H. Tenney, Jr., Joseph J. Howard, St. Louis, for appellants.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for respondents.
   HOLMAN, Commissioner.

The plaintiffs in this case are all owners of lots in “Osage Hills,” a subdivision now located in the City of Kirkwood, Missouri. The defendants consist of the State Highway Commission of Missouri and the members of that commission who are made individual defendants. (We will hereafter refer to the highway commission as “defendant.”) In this action plaintiffs seek to enjoin defendant from constructing a highway upon certain property it had acquired (both by condemnation and purchase) in Osage Hills subdivision. It is ■their theory that they have a property right in the nature of a negative easement which was created in the property here involved by an “Indenture of Restrictions” applicable to Osage Hills, which restrictions, they contend would be violated by the construction of the proposed highway. They concede that the defendant may not be prevented from constructing the highway in violation of the restrictions but contend that defendant must first condemn or otherwise acquire the “property right” of each of the approximately 400 lot owners in the subdivision (created by the restrictive agreement) in the land upon which the highway is to be constructed. The cause was submitted to the trial court upon an agreed statement of facts and the court entered a judgment in favor of defendant. Plaintiffs have duly appealed.

Osage Hills subdivision was created by the filing and recording of a plat thereof in 1926. At about the same time a restrictive trust agreement applicable to said subdivision was executed and recorded. It appears to have been the intention of the owners to establish a high-type residential subdivision. In a general way it was laid out so that most of the lots were adjacent to or very near large areas of open ground upon which, shortly thereafter, was established a golf course which has been operated by the Greenbriar Hills Country Club. The land occupied by the country club was owned by Greenbriar Hills Realty Company. However, mere ownership of a lot in the subdivision did not give to the owner any right to membership in the country club or to use the golf course or other club facilities. It was provided in the trust agreement, however, that the “Club Grounds” for a period of SO years should “not be put to any other than country club or other recreational uses.” Other provisions made it clear that there was no obligation upon the owners to make any use of said grounds, but if they were used for any purpose the use was restricted as heretofore specified.

The trust agreement contains detailed provisions and restrictions in regard to the use that may be made of the lots, streets and sidewalks in the subdivision. It also specifies the type of buildings that may be constructed upon the lots. Provision was made for three trustees who were given extensive powers in connection with the operation of the subdivision. Many of these powers were made necessary by the fact that at the time the subdivision was laid out the land was not located within the boundaries of any city. Upon motion of the defendants the present trustees were made third-party defendants in this action.

As indicated, defendant acquired a small number of lots by purchase, and the remainder of the right of way for the proposed highway (through Osage Hills) was over a portion of the “Club Grounds” which was obtained by condemnation. The trustees of the subdivision were made defendants in the condemnation suit but none of the plaintiffs were included as parties therein. The amount of damages awarded by the commissioners was $350,000 and, by stipulation of the parties, all of that amount was paid to Greenbriar Hills Realty Company, the owner of the “Club Grounds.”

We have jurisdiction of this appeal because we are asked to constrae Article I, § 26 of the Constitution of this state and the Fifth and Fourteenth Amendments to the United States Constitution, and for the further reason that title to real estate is involved. Art. V, § 3, Const, of Missouri, 1945, V.A.M.S.

At the outset of our consideration it should be plainly stated that plaintiffs do not contend that they have acquired by the terms of the trust agreement (or otherwise) any fee simple title or interest in the land here involved or any other estate known to the common law. They do not contend that they have acquired any easement which would entitle them to make any affirmative use of any of said property. Their contention is that by the restrictions contained in the trust agreement each lot owner acquired a negative easement which would entitle him to enforce the restrictions against other lot owners, and in case of an intended violation of the restrictions by the State each lot owner’s interest is a “property right” for which he is entitled to just compensation to be assessed in a condemnation proceeding, or, of course, paid by private negotiation and purchase.

In support of their contention plaintiffs rely mainly upon the case of Peters v. Buckner, 288 Mo. 618, 232 S.W. 1024, 17 A.L.R. 543, wherein this court held that where lots in an addition were platted and sold subject to the restriction that they be used for residential purposes only, a school district could not condemn certain lots for the purpose of constructing a school building thereon without compensating the other lot owners for damages resulting from the loss of the negative easement created by the said restrictions. It was the theory of the court that the restriction vested in the owners of all the lots in the addition a property right in the lots sought for the schoolhouse site and that under the applicable provisions of the state and federal constitutions such property right could not be taken or damaged unless just compensation was first paid therefor. The state constitutional provision then in effect was the same (in the respect here applicable) as our present Section 26, Art. I, which states that “private property shall not be taken or damaged for public use without just compensation.” The Peters case was followed by this court in the case of Britton v. School Dist. of University City, 328 Mo. 1185, 44 S.W.2d 33, a similar schoolhouse case, and in a companion case to Britton entitled State ex rel. Britton v. Mulloy, 332 Mo. 1107, 61 S.W.2d 741.

If we were called upon to apply the rule announced in the Peters case in deciding the case at bar it would be necessary, under the contention briefed, to re-examine the soundness of that rule. However, since, as hereinafter appears, we have concluded that the construction of the highway would not violate the restrictions specified in the trust agreement, the Peters case is not applicable to our decision and it is therefore unnecessary for us to re-examine it. In that connection, however, we should perhaps state that while the rule followed in Peters has been said to be the majority rule (Vol. 2, Nichols on Eminent Domain, § 5.73, p. 81), there are a number of well-reasoned cases which hold to the contrary. See Board of Public Instruction v. Town of Bay Harbor Islands (Fla.), 81 So.2d 637, Friesen v. City of Glendale, 209 Cal. 542, 288 P. 1080, Anderson v. Lynch, 188 Ga. 154, 3 S.E.2d 85, 122 A.L.R. 1456, Moses v. Hazen, 63 App.D.C. 104, 69 F.2d 842, and City of Houston v. Wynne (Tex.Civ.App.), 279 S.W. 916.

Defendants have briefed the contention that the provisions of the trust agreement, when strictly construed, do not prevent the use of the lots in the subdivision for highway pui-poses and that the provisions relating to the “Club Grounds” do not grant to the lot owners any right or easement of any kind in and to said lands. In considering that point we should bear in mind that restrictions upon the use of real property, being in derogation of the fee, are not favored, are strictly construed, and doubts in respect thereto are to be resolved in favor of the free use of the property. Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604, 95 A.L.R. 452; Missouri Province Educational Institute v. Schlecht, 322 Mo. 621, 15 S.W.2d 770.

There is no restriction in the trust agreement to the effect that the land cannot be used for a highway. In regard to the residence lots the only provision that might possibly be applicable here is the following:. “E, 4(b). That no residence or building on any residence lot shall be used directly or indirectly for business of any character or for any purpose other than that of an exclusive private residence, except that a physician or dentist residing therein may have his office and practice his profession therein.” It will be noted that the quoted restriction did not provide that the lots could not be used for any other than residential purposes as is the case in the agreements relating to many such subdivisions. It did not restrict the use of the land, but provided, in effect, that any building on the lot should not be used for any purpose other than for a private residence. The defendant does not propose to construct any building on the lots and therefore we must rule that the construction of a highway would not violate the quoted. restriction.

In support of their contention that the trust agreement would be violated by highway use plaintiffs point to a recital in the instrument which states: “Whereas, the lo.ts shown on said plat are all intended fon,sites for private residences, only * * _” Recitals, as a general rule, are not strictly any part of the contract, and, while they may be helpful in determining intent, ‘.'where the recitals are broader than the contract stipulations, the former will not extend the latter.” 17 C.J.S. Contracts § 314, p., 733. We do not find any ambiguity in the provision heretofore quoted and hence the recital may not be used to extend and broaden the restrictions therein specified.

In regard to the "Club Grounds” the trust agreement provided “that neither the owners of the lots as such, nor the Trustees as such, shall have any right, title, interest or easement in or to said Club Grounds, and that the sole object of including said Club Grounds in this Indenture is fób'thé purpose of protecting said lots by the setting aside and restricting said Club Grounds to certain uses! Said Club Grounds for and during a period of fifty (SO) years from date shall not be put to any other than country club or other recreational uses and purposes and such other uses as may be incidental thereto; provided, however, that this provision is intended as a limitation only and nothing herein contained shall obligate the Corporation or its successor or successors in title to said Club Grounds or any part thereof, to use or maintain any or all of said Club Grounds for such purposes.”

Plaintiffs contend that all the lot owners have a negative easement in said land because of the quoted restrictions upon the use thereof. It may be that the use of that land for a highway would be a violation of the restrictive provisions, but, in any event, we are of the opinion that plaintiffs are in no position to recover compensation for the taking thereof by defendant. This, because of the express provision that the lot owners shall have no “right, title, interest or easement in or to said Club Grounds,” which provision, of course, would include a negative easement. The constitutional provision heretofore quoted certainly does not require that a person be paid compensation for the taking of private property in which he has no “right, title, interest or easement.” We recognize that the restrictive provisions concerning the use of said lands were apparently intended to be for the benefit of the lot owners, but we cannot hold that they had such an interest in the land as would entitle them to compensation in the nature of damages for its taking in view of the express agreement that they had no “right, title, interest or easement” therein.

In summary, we hold that the construction of the proposed highway would not violate any negative easement or similar right that may be vested in the lot owners and therefore plaintiffs are not entitled to compensation for the taking of said land; and that defendant would not violate the applicable provisions of the state or federal constitutions in failing to condemn or otherwise acquire the alleged interest of plaintiffs in said lands before proceeding to construct said highway.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

The foregoing opinion by HOLMAN, C., is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    The FIRST NATIONAL BANK OF KANSAS CITY, Missouri, Caroline Hyde Swift and Florence Hyde Frazier, Trustees under the Last Will and Testament of Arthur M. Hyde, deceased, Respondents, v. Hortense C. HYDE, Samuel Hyde Swift (a minor), Anne Hathaway Swift (a minor), Laurance M. Hyde, Ben C. W. Hyde, Jr., Ira B. Hyde, III, all individually and as representatives of all future contingent beneficiaries under the Last Will and Testament of Arthur M. Hyde, deceased, Defendants, Caroline Hyde Swift and Linda Caroline Hryniewicz, Appellants.
    No. 48770.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1962.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 14, 1963.

      Michael J. Trombley, Columbia, for appellants.
    Richard B. Taylor, Chillicothe, Lawrence R. Brown, Kansas City, for respondents, Stinson, Mag, Thomson, McEvers & Fiz-zell, Kansas City, of counsel.
   STORCKMAN, Judge.

This appeal grows out of an equitable action brought by three trustees for the construction of a provision of a testamentary trust and for the interim approval of their account as trustees. The trial court after a hearing construed the trust and approved the accounting. Within thirty days thereafter the trial court, at the instance of the income beneficiary, who is also one of the trustees, set aside the decree insofar as it approved the trustees’ account and permitted objections to be filed to certain items of the accounting. Another hearing was then had and the trial court again approved the accounting in all respects and granted other relief to the trustees. The income beneficiary and her daughter, the ultimate beneficiary of the corpus of the trust, have appealed. The appellants contend that the corporate trustee breached its trust and should be required to return to the trust fund the sum of $20,243.39 received by it as trustee fees.

Arthur M. Hyde, a former governor of this state, died testate and his will was admitted to probate in Grundy County, Missouri, on October 23, 1947. Article Sixth of his will bequeathed all his stock to three individuals as trustees for the use and benefit of the testator’s wife, Hortense C. Hyde, for and during her natural life, and at her death for the use and benefit of the testator’s daughter, Caroline Hyde Kelly, for and during her natural life, and at her death for the use and benefit of Linda Caroline Kelly, a granddaughter of the testator, until her thirtieth birthday at which time the trust was to terminate and the corpus thereof was to be distributed to the granddaughter free from trust. If Linda was not living on the day when she would have become thirty years of age, then the trust property was to be distributed to the heirs of her body, and if she died without such heirs then the trust property goes to the heirs of the testator, determined as of the date that Linda would have attained the age of thirty years. In the event of the death or disability of a trustee, the remaining trustees were authorized to name a successor and record the appointment in the office of the clerk of the Circuit Court of Grundy County, Missouri. The testator’s daughter, Caroline Hyde Kelly, was designated as a successor-trustee in the event as many as three vacancies occurred.

No assets came into the hands of the trustees until March 1953 at which tieee all three of the trustees originally named had declined to serve. The duly-appointed and acting trustees then were The First National 'Bank of Kansas City, Missouri, a corporation, Hortense C. Hyde, the testator’s widow, and Caroline Hyde Swift, the testator's daughter, formerly Caroline Hyde Kelly. Thereafter, on November 23, 1953, Mrs. Hyde resigned as trustee and was succeeded by her niece, Mrs. Florence Hyde Frazier. When the trust came into the possession of the trustees in March 1953, it consisted entirely of shares of common stock having a market value of $596,200. Differences arose almost immediately between the corporate trustee (herein sometimes referred to as the “Bank”) and Mrs. Swift with respect to investment policy. Mrs. Swift' contended that the trust property .should be kept invested entirely in common •stock. On the other hand, the Bank took the position that it was the duty of the trustees '•to diversify the holdings and that a portion ■of the trust estate should be converted in other kinds of investments. Some bonds and debentures were acquired until an impasse’was reached by reason of Mrs. Swift’s refusal to agree to the further purchase of bonds, and particularly bonds of the United States Government or U. S. Treasury Notes. As a result of the deadlock, a considerable amount of principal cash accumulated in the trust estate during the latter part of the period in question. Nevertheless, at the time of the trial in June 1960, the market value of the trust estate had increased to $1,047,427.

On August 29,1958, Mrs. Hyde, the testator’s widow, executed and delivered to the trustees a written renunciation of her right to receive the income from the trust estate for the remainder of her lifetime, and the question then arose as to whether the daughter, Mrs. Swift, was entitled to succeed Mrs. Hyde as the income beneficiary. A construction of the trust instrument in this respect was the subject matter of the first count of the equity action filed by the three trustees, on March 13, 1959, in the Circuit Court of' Grundy County. The second count was for approval of the interim accounting of the trustees. The defendants in the action were Mrs. Hyde and Mrs. Swift, individually, Linda Caroline Hryniewicz, formerly Linda Caroline Kelly, and other individuals as representatives of all the future contingent beneficiaries under the last will and testament of Arthur M. Hyde, deceased. The answers of the defendants generally admitted the allegations of the plaintiffs’ petition or called for strict proof thereof.

A hearing was had and on April 20, 1959, the trial court entered its decree instructing the trustees to pay over and deliver to Mrs. Swift, as successor to her mother, the trust income accrued on and after September 1, 1958, subject to the provisions of the testamentary trust. In accordance with the prayer of count 2 of the petition, the decree approved the statement of assets and the interim accounting of the trustees and all acts and conduct on the part of the trustees in connection with the administration of the trust to January 15, 1959, the date of the interim accounting. Thereafter, on May 16, 1959, the individual defendants, Mrs. Hyde, Mrs. Swift, and Linda Caroline Hryniewicz, filed a joint motion requesting the court to set aside of its own motion the decree insofar as it related to count 2 of the petition. The motion alleged that there were substantial errors in the accounting. Pursuant to the motion the court vacated this part of the decree on May 16.

Thereafter, on September 23, 1959, the corporate trustee filed its motion for acceptance of its resignation as co-trustee, and prayed that its final accounting be approved and that it be allowed its fees and expenses, including reasonable attorneys’ fees. The resignation and other exhibits attached to the motion tended to show the existence of a controversy between Mrs. Swift and the Bank over investment policies and a desire that the Bank resign as trustee when Linda, the granddaughter of the testator, would become twenty-one years of age on September 9, 1958, in order to make it possible for Linda to be appointed as a trustee. The Bank indicated a willingness to resign sooner but agreed to stay on until Linda attained her majority. Thereafter, on July 29, 1958, Mrs. Swift wrote the Bank saying it was desirable for the Bank to stay on for another year. Mrs. Swift and Linda filed a joint answer to the Bank’s motion for acceptance of its resignation. This and an amended or supplemental answer sought to surcharge and falsify the account especially with regard to the Bank’s fees and expenses.

Thereafter, on June 11, 1960, Mrs. Frazier filed her resignation as co-trustee and a motion for its acceptance stating that she had become a nonresident and praying that she be released from all obligations and duties and all liability under said trust, that the interim accounts during the period of movant’s term as a trustee and the trustees’ final accounting be approved, and that the management of the trust during the period of the movant’s term be approved and confirmed as in accord with the law and the terms of the trust.

At the four-day hearing in June 1960, the Bank and Mrs. Swift were the only parties that appeared and presented evidence. After the cause had been submitted to the court, Mrs. Swift without benefit of her counsel wrote a letter to the court in which she requested the court “to hear more evidence in this case, to reopen the case, to' call for more evidence, or to do whatever, in the Court’s judgment, is best in order that the whole case may still be a matter of record.” This motion in letter form occupies 133 pages of the transcript of the record on appeal and contains much that is irrelevant to any proper issues in the case.

The decree of the trial court on November 30, 1960, denied Mrs. Swift’s request to reopen the case, accepted the resignation of the Bank and appointed Linda in its place, accepted the resignation of Mrs. Frazier and appointed Michael J. Trombley in her stead, approved the settlement of the trustees and overruled all objections thereto, and allowed certain fees and expenses and directed their payment out of the trust estate.

Thereafter, the Bank filed a supplemental accounting covering the period to December 8, 1960, to which Mrs. Swift and Linda filed objections. Thereafter, the attorneys who had represented Mrs. Swift and Linda at the trial filed their request for leave to withdraw from the case and were permitted to do so. On March 10, 1961, the trial court having considered the objections to the supplemental statement of assets and interim accounting overruled them and approved and confirmed the accounts and further instructed the Bank that during the. further pendency of the case in the trial court or on appeal the co-trustees shall invest and keep invested in short-term obligations of the United States of America that part of the corpus of the trust now held in cash. The motion of the defendants Caroline Hyde Swift and Linda Caroline Hryniewicz for new trial was overruled on March 13, 1961, and they appealed.

The case was tried without a jury and the trial court was indulgent as .to the admission of evidence and properly so. The transcript of the record consists.of two large volumes. The Bank identified and offered sixty exhibits, and Mrs. Swift forty-six. Some of the exhibits were quite extensive. Mrs. Swift introduced in evidence the printed record of hearings before the Finance Committee of the United States. Senate held in the summer of 1957 entitled,.“Investigation of tire Financial Condition of the United States”. This record consisted of three volumes and aggregated 1606 pages. A great deal of the record is taken’ up with the attempt by Mrs. Swift to show by evidence aliunde that her father’s intent was that the trust assets should be invested only in shares of common stock. This she undertook to do chiefly by extensive cross-examination of the Bank’s witnesses, by letters exchanged between her father and the Bank regarding investments in other trusts, and by her own oral testimony as to what her father taught her concerning his investment policies, which in brief outline was that he was opposed to investing in any kind of bonds or obligations having a fixed value payable in dollars because the United States had gone off of the gold standard in 1933 and since then had engaged in deficit spending and credit regulation, and that for these and other reasons inflationary conditions were prevalent in this country which made it inadvisable to invest in anything but common stock, sometimes referred to as equities. This sort of evidence cannot be considered in ascertaining the set-tlor’s intention as to the trustees’ rights and duties with respect to the investment of trust funds.

In determining the meaning of a trust provision, the paramount rule of construction is that the settlor’s intent is controlling and such intention must be ascertained primarily from the trust instrument as a whole. Nelson v. Mercantile Trust Co., Mo., 335 S.W.2d 167, 173 [6]; Old Folks Home of St. Louis County v. St. Louis Union Trust Co., Mo., 313 S.W.2d 671, 678 [6]; St. Louis Union Trust Co. v. Herf, 361 Mo. 548, 235 S.W.2d 241, 247 [4] ; State ex inf. Miller v. St. Louis Union Trust Co., 335 Mo. 845, 74 S.W.2d 348, 358 [13].

Statements by the settlor of the trust of his intentions are not ordinarily admissible, whether the trust is created by a will or instrument inter vivos. Section 474.320 RSMo 1959, V.A.M.S.; Scott on Trusts, Vol. II, § 164.1, p. 1158; Restatement of the Law, Trusts 2d, Vol. I, § 4c, p. 14, and § 53, p. 130.

Letters written to the Bank by Mr. Hyde containing statements about investment policies contrary to the settlor’s intention expressed in the will are not admissible in evidence and cannot be considered in ascertaining the settlor’s intention. Crist v. Nesbit, Mo.App., 352 S.W.2d 53, 56 [2].

Where as here the trust estate is created by will, the trustees must look to the will for its powers in the execution of the trust and the management of the trust estate. Loud v. St. Louis Union Trust Co., 313 Mo. 552, 281 S.W. 744, 754 [2]; St. Louis Union Trust Co. v. Ghio, 240 Mo. App. 1033, 222 S.W.2d 556, 560 [1]; 90 C.J.S. Trusts § 247, pp. 225, 229 ; 50 Am. Jur., Trusts § 307, p. 243.

Article Sixth (a) of the will deals with the investment powers of the trustees. It provides in part that the trustees “shall be and they are hereby fully authorized and empowered to retain and continue to hold as investments of said trust estate any stocks which belong to me at the time of my death, or they may sell said stocks or any part thereof and reinvest the same in other stocks or securities or invest said stocks or the proceeds therefrom in other stocks or in other securities or in any other investments, and for the purpose of so doing my said trustees may sell or dispose of said stocks in any manner so as to enable them to keep said trust estate invested in proper stocks, securities or investments.” Clearly the trustees were authorized to retain stocks held by the testator at the time of his death or they could sell “said stocks or any part thereof and reinvest” the proceeds. A trustee would not be justified in continuing to hold an investment made by the settlor if sound business judgment dictated that it should be disposed of and the proceeds-reinvested unless the trust instrument contained a positive direction that such investment must be retained. Such is the holding in Loud v. St. Louis Union Trust Co., 313 Mo. 552, 281 S.W. 744, 754 [1], which states: “The fact that the investment was originally made by the testatrix herself and came to defendant as a part of her estate did not justify defendant in retaining the investment, if sound business judgment prompted its sale and reinvestment in other profitable and reasonably safe securities, absent, of course (as in this case) a positive direction in the will that the investment must be continued by the trustee.” There was no such mandatory provision in the Hyde trust so the trustees were free to sell any stock if its retention did not reasonably appear to be justified. The most troublesome difference between Mrs. Swift and the Bank was what kind of investment should be made with the proceeds of stock sold.

Article Sixth (a) further provided that the trustees could invest estate funds “in other stocks or in other securities or in any other investments”. And they were finally admonished “to keep said trust estate invested in proper stocks, securities or investments.” The Bank contends that the word “securities” is at least comprehensive enough to include bonds, while Mrs. Swift in her brief urges that “securities” means “different types of stock or equities such as preferred stock or convertible debentures to the settlor”, and that the word “bond” would have been used if intended. The appellants contend that the use of these terms creates an ambiguity as to the investment powers of the trustees. The rules of construction applied to wills generally are also used in the case of testamentary trusts. Section 474.430 RSMo 1959, V.A.M.S.; Higbee v. Brockenbrough, Mo., 191 S.W. 994, 996 [4],

A testator is presumed to know and intend the legal effect of the language he uses in a will. Gehring v. Henry, Mo., 332 S.W.2d 873, 876 [3], Where the language used is clear and of well-defined force and meaning, it must stand as written and extrinsic evidence of what was intended in fact cannot be adduced to qualify, explain, enlarge, or contradict the language. In re Sidebottom’s Estate, Mo., 327 S.W.2d 270, 278 [10]; Gehring v. Henry, Mo., 332 S.W.2d 873, 876 [4]; Schubel v. Bonaker, Mo., 331 S.W.2d 552, 556 [8,9], The evidence aliunde adduced by Mrs. Swift tends to contradict and destroy the unambiguous grant of investment powers contained in Article Sixth (a) of the will. The language used has a well-defined meaning and in these circumstances the intention of the trustor must be determined from within the borders of the will.

The broadest of the descriptive terms used in Article Sixth (a) is “investment” which is defined in Webster’s Third New International Dictionary as: “la: an expenditure of money for income or profit or to purchase something of intrinsic value * * * 2: the commitment of funds with a view of minimizing risk and safeguarding capital while earning a return- — contrasted with speculation”. The same work defines “security” as: “a written obligation, evidence, or document of ownership or cred-itorship (as a stock, bond, note, debenture, or certificate) giving the holder the right to demand and receive property not in his possession”. Sometimes the term “securities” is used with the meaning of bonds or debentures as contrasted with stock. Commissioner of Internal Revenue v. Neustadt’s Trust, 2 Cir., 131 F.2d 528, 529. See also Fairleigh v. Fidelity National Bank & Trust Co., 335 Mo. 360, 73 S.W.2d 248, 252, and 79 C.J.S. Security; Securities, p. 947. On the other hand, the Securities Act of 1933, Title 15 U.S.C.A. § 77b(1), p. 199, and the Securities Exchange Act of 1934, Title 15 U.S.C.A. § 78c(10), p. 362, gives the term “security” a much more comprehensive definition including, inter alia, stock, bonds and debentures.

The meaning intended by the testator or settlor must be arrived at by taking into account also the context in which the word is used. The ancillary powers granted in the latter part of Article Sixth (a) (following the part quoted above) also refers to stocks, securities and investments in various combinations. We hold that the terms “securities” and “investments” as used in Article Sixth (a) were broad enough to include bonds (state, federal or municipal), U. S. Treasury notes, and debentures. The trustees did not breach their trust as to the kind or character of investment they were authorized to make.

None of the pleadings of Mrs. Swift or any other defendant charges the Bank with fraud or chicanery. Furthermore, during the trial, counsel for Mrs. Swift stated that there was no charge of malice on the part of the trustees and further asserted that the charge was a failure to act as reasonable prudent investors by selling off a part of the common stock.

Mrs. Swift complains of acts of the Bank as trustee which conflicted with her ideas and distressed her, but which resulted in no loss or damage to the trust estate. For instance, she asserts that Bank officers led her to believe that their usual investment policy was not to have more than fifty percent of a trust estate in common stocks “give or take a little”. The evidence demonstrates that this alleged formula was not applied to the Hyde trust. Actually about eighty percent of the market value of the trust assets remained in common stock at all times; the other twenty percent was chiefly in convertible debentures and preferred stock of private corporations. No long-term government bonds were purchased. On occasions short-term U. S. Treasury Notes were purchased when reinvestments could not be agreed upon. When Mrs. Hyde was receiving the income, a tax-exempt municipal bond was purchased in order to minimize her personal income taxes. This was a bond of a school district in Gasconade County, purchased for $4938.21 and which yielded a return slightly in excess of two percent. When the Bank would not agree to invest more of the trust funds in common stocks, Mrs. Swift suggested the purchase of Swiss francs or gold bullion, and at another time inquired about loaning the money on real estate in the Virgin Islands in preference to the U. S. Government issues or other fixed value securities. To these suggestions, the Bank would not agree. Such complaints present no grounds for redress.

The trustees were under a duty imposed by Article Sixth (a) to invest the trust funds in proper stocks, securities or investments. In this situation, the applicable standards are well stated in St. Louis Union Trust Co. v. Toberman, 235 Mo.App. 559, 140 S.W.2d 68, 72, as follows: “As a fundamental proposition, it is the duty of a trustee, in the investment of trust funds committed to his care and keeping, to exercise such care and diligence as men of ordinary prudence, intelligence, and discretion would employ, not with a view to speculation, but rather with a view to the permanency of the investment, considering both the probable income and the probable safety of the capital invested. This does not mean, however, that a trustee shall invariably have the unlimited authority to invest trust funds as an ordinarily prudent and diligent man might invest his own funds, since an ordinarily prudent man may, and frequently does, invest his own funds with the idea and hope of accumulation, and at the risk which such intent imposes. A trustee, on the contrary, may take only such risks as an ordinarily prudent man would take in the investment of the funds of others, bearing ever in mind that it is the preservation of the estate, and not an accumulation to it, which is the chief object and purpose of his trusteeship. Cornet v. Cornet, 269 Mo. 298, 190 S.W. 333 ; 65 C.J. 795, 796.” See also Therrien v. Mercantile-Commerce Bank & Trust Co., 360 Mo. 149, 227 S.W.2d 708; Fairleigh v. Fidelity National Bank & Trust Co., 335 Mo. 360, 73 S.W.2d 248; and 90 C.J.S. Trusts § 247d, p. 238.

The appellants contend that the will as a whole showed that diversification of investments was not required, that the law did not require it, and that the Bank breached its duty in so doing. Restatement of the Law, Trusts 2d, § 228, p. 541, states the prevailing rule as follows: “Except as otherwise provided by the terms of the trust, the trustee is under a duty to the beneficiary to distribute the risk of loss by a reasonable diversification of investments, unless 'under the circumstances it is prudent not to do so.”

The appellants direct our attention to provisions of the will which give other designated property outright to the testator’s widow, his daughter, his son-in-law and other specific legatees, whereas all of his stocks were put in trust. The effect of this, the appellants contend, was to release the trustees from any requirement to diversify trust investments. The value of the other property is not shown but even if we assume it to be substantial the contention is without merit. The trustees cannot be charged with keeping abreast of the changing financial condition of the other legatees or devisees in order to determine what investment should be made. Their care and management of the trust assets are controlled by the expressed purposes of the trust instrument and not by extraneous matters. The trustees did not breach a duty by undertaking to diversify trust investments.

We find no merit in appellants’ contention that the Bank breached its duty by using uninvested funds for its own profit and not for the benefit of the estate. The evidence demonstrates that the Bank was at all times willing and urging that the cash principal be invested in proper securities. Mrs. Swift would not even permit it to be put in short-term U. S. treasury bills.

Nor is there any merit in the contention that the Bank failed to carry a proportionate share of the burden of selecting proper trust investments. The Bank had custody of the securities, collected and disbursed the income, made investments when permitted to do so, and prepared the accounts. The Bank’s evidence tended to show that the trust account received attention regularly from trust officers, and a formal review was made annually by the investment committee. The appellants make much of the fact that some members of the committee had not read the trust instrument but there was no showing that they were not familiar with its contents or that a failure to read it had prejudiced the estate in any manner. The evidence showed that the trust officers were men experienced in making investments and had access to current investment information. The evidence tended to show that Mrs. Swift’s unyielding antagonism to fixed value securities, especially government issues, and her refusal to •recognize and conform to the prevailing standards for trust estate investments imposed an additional burden on all concerned including herself. But it cannot be said on the record before us that the Bank shirked any of its duties as one of the trustees.

The appellants assert that the Bank did not sustain the burden of proving the relief requested but cites no cases in this respect. The principal relief it obtained was approval of its management and accounting in the trust estate. The presumption is that a trustee has acted in good faith and has done his duty, and the burden is on the one attacking his accounts and seeking to establish a breach of trust to prove the contrary. Offenstein v. Gehner, 223 Mo. 318, 122 S.W. 715, 716 [1] ; Boland v. Mercantile-Commerce Bank & Trust Co., 349 Mo. 731, 163 S.W.2d 597, 606 [8],

Paul Bakewell, a St. Louis lawyer, chiefly engaged in the trust, probate, tax, corporation, and real estate practice, testified on behalf of Mrs. Swift that he had examined the accounting of the trustees. After he testified that in his opinion an investment by a trustee in a fixed value security would be imprudent, he was asked by the court to point out the investments in the trustees’ account that he thought were imprudent. After further examination, Mr. Bakewell designated the Gasconade County School bond, three purchases of treasury certificates, and the'cash on hand as the only improper investments.

“Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court, except to prevent an abuse by the trustee of his discretion.” Restatement of the Law, Trusts 2d, § 187, p. 402. See also Bolles v. Boatmen’s National Bank, 363 Mo. 949, 255 S.W.2d 725, 732 [9], and Bakewell v. Mercantile Trust Co., Mo., 319 S.W.2d 600, 605 [5]., We find no abuse of discretion on the part of the trustees in any respect challenged by the appellants.

Since we have examined all of appellants’ charges and find that the Bank has not committed any breach of trust, it follows that it is entitled to its fees and expenses in the amount shown by the evidence to be reasonable and proper. Bolles v. Boatmen’s National Bank, 363 Mo. 949, 255 S.W.2d 725, 736 [18].

The judgment is affirmed.

All the Judges concur.


author: DALTON, Presiding Judge.

text:
    William M. FINKE, Plaintiff-Appellant, v. UNITED FILM SERVICE, a Corporation, Defendant-Respondent.
    No. 49115.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1962.
    Motion for Rehearing and to Transfer to Court En Banc Denied Jan. 14, 1963.
    Arthur C. Popham, Kansas City, Pop-ham, Thompson, Popham, Trusty & Conway, Scarritt Bldg., Kansas City, of counsel, for appellant.
    Hilary A. Bush, Paul E. Vardeman, Jr., Johnson, Lucas, Bush & Vardeman, Kansas City, for respondent.
   DALTON, Presiding Judge.

This is an action for $31,000 for personal injuries and property damage alleged to have been sustained by plaintiff in an in-tersectional collision in Kansas City, Missouri, between two motor vehicles (station wagons), one operated by the plaintiff aud the other by defendant’s employee. Verdict and judgment were for defendant and plaintiff has appealed.

Appellant assigns error on the admission in evidence of Sec. 3122.1 of the Revised Ordinances of Kansas City, Missouri, an ordinance dealing with the right of motor vehicles to right-of-way at street intersections. This ordinance was pleaded in the plaintiff’s petition in support of an assignment of primary negligence, and the petition had not been amended when the ordinance was admitted in evidence at defendant’s request. The cause was subsequently submitted to the jury solely on humanitarian negligence in failing to sufficiently slacken the speed of defendant’s westbound vehicle to permit plaintiff’s northbound vehicle to escape through the intersection in safety. The ordinance was offered near the close of defendant’s evidence and, before it was actually received into evidence, the plaintiff objected and announced that he expected to and would submit his case to the jury on humanitarian negligence alone. Appellant further contends that prejudicial and reversible error was committed in permitting defendant’s counsel to make certain argument, which appellant insists emphasized and reviewed plaintiff’s antecedent or prior primary negligence. In reply, the respondent contends that. the argument, fully supported by the evidence, was proper and did not constitute prejudicial error in view of the terms of plaintiff’s principal instruction submitting humanitarian negligence. This instruction contained the humanitarian submission and further authorized a recovery by plaintiff, even if the jury believed the plaintiff “ * * * was himself negligent, and thereby directly contributed to said collision, but did not solely cause same, if you so find.” (Italics ours.) Respondent’s theory is that “sole cause” was properly argued as a defense.

From a careful review and consideration of the entire record, including the manner in which the cause was pleaded, stated, tried and submitted, we have reached the conclusion that no prejudicial error appears; however, a review of the entire record is necessary to support the conclusion reached.

The nature and extent of plaintiff’s injuries and the amount of property damage sustained are not in issue on this appeal. There is no contention that a case was not made for the jury on the ground submitted, nor is there any complaint with reference to the giving, or refusal of instructions. Other matters require attention.

It is admitted that on October 26, 1959, between 10:30 a. m. and noon, a collision occurred at the intersection of 37th Street and Bales Avenue in Kansas City, Missouri, between plaintiff’s northbound motor vehicle operated by plaintiff and a westbound motor vehicle owned by the defendant and operated by its agent Jackson, who was acting in the course of his employment. Bales Avenue extends north and south, while 37th Street extends east and west. The streets at the intersection are between thirty-five and thirty-seven feet in width; both are paved with blacktop; there is no traffic light, stop sign or other traffic control at the intersection except that ten or twelve feet south of the intersection on Bales Avenue there is a sign which reads: “Slow, 10 Miles Per Hour.”

As indicated, the plaintiff in his petition pleaded specific primary negligence and also humanitarian negligence. The assignments of primary negligence included a charge based on the violation of the mentioned right-of-way ordinance of Kansas City, No. 3122.1, subsequently introduced in evidence by defendant as follows: “The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection. When two vehicles enter an intersection at the same time the driver of the vehicle on the left shall yield to the driver on the right.”

Other assignments of primary negligence were as follows: “That defendant operated its said motor vehicle at dangerous speed under the conditions herein set forth and negligently failed to keep same under reasonable control, negligently failed to keep a lookout laterally and ahead * * * that his [plaintiff’s] motor vehicle entered said intersection before the vehicle of defendant reached the same, and that defendant negligently failed to yield plaintiff the right-of-way.”

The assignment of humanitarian negligence was based upon the alleged failure to slow defendant’s vehicle or swerve it and prevent the collision after plaintiff and his vehicle were in imminent peril.

Defendant’s answer affirmatively pleaded the contributory negligence of plaintiff “in that plaintiff disregarded a ten mile per hour speed limit across said intersection and was proceeding across said intersection at a speed greatly in excess of ten miles per hour; * * * failed to yield the right-of-way to the motor vehicle owned by defendant”, which vehicle reached the intersection first or at approximately the same time as plaintiff’s vehicle, and that, in the exercise of the highest degree of care, plaintiff could have seen defendant’s vehicle, known of the danger of a collision and have avoided the collision by stopping, slackening speed, turning it aside or sounding a warning of his presence and intention to proceed across the intersection without reducing his speed to ten miles per hour.

In reviewing a case upon appeal wé must necessarily review it upon the theory upon which it was tried and submitted in the trial court. Having reviewed the pleadings, we must now consider the opening statements of the parties. Plaintiff’s counsel, in his opening statement, stated that the plaintiff lived out on Bales Avenue not far from where the collision happened; that he was entirely familiar with the intersection and knew that, as he went north on Bales and before he got to 37th, he would encounter a sign there that said ten miles, “ ‘Slow, 10 miles’ ”. Counsel further states: “There were no stop signs against traffic on either street. There were no lights there. There were no control signals. We do not speak of it as a controlled intersection, it is what we speak of as an open intersection. * * * There was nothing there to keep drivers from seeing either direction and we will prove that. Anything there was so low it didn’t amount to anything at all to the driver who was looking where he was going.”

On the issue of right-of-way, plaintiff’s counsel stated: “The evidence will be that when Mr. Finke looked on 37th before crossing that intersection, he looked one way and saw nothing, he looked the other way and he saw this vehicle of the defendant company, and his best judgment is that it was a hundred feet from that intersection when he was ready to go into it. * * * The evidence will show that man [Jackson] did just the opposite from that, and this evidence will be virtually undisputed. The evidence will be that he did slow somewhat, but when he got to about 30 feet from this intersection he wasn’t looking where he was going but was looking the other way and increased his speed and caught this man before he could get over the intersection.” Counsel also referred to the case as “an almost escaping case” by saying “the evidence will show if this colored man-Jackson had slowed up just a little bit there would have been no collision.”

Defendant’s opening statement also pointed out that the evidence would show the ten mile an hour slow sign at the intersection for traffic going north on Bales; and that “on the corner of 37th and Bales, on the southeast corner, there is a house with a hedge and some large trees in the yard, and there is somewhat of an obstruction to view at that point, so the city ordinance, under the ordinance this 10 mile per hour stop sign was erected for traffic moving the way the plaintiff was going.” He further pointed out that not only did plaintiff have a “slow sign” at the intersection, but that there was the city ordinance which required a vehicle in the intersection first to have the right-of-way, and when vehicles arrived at about the same time “the one approaching from the right has the right of way to proceed through the intersection.” Counsel said defendant’s evidence would show that plaintiff approached the intersection and “didn’t continue slowing up and yield but instead he speeded up and tried to beat his way across the intersection,” and that plaintiff’s station wagon “hit the left side of the station wagon * * * operated by United Film.” Counsel further pointed out that their evidence would show that their station wagon was approaching the intersection from plaintiff’s right and the ordinance, under the evidence that would be shown, gave “the one approaching from the right * * * the right-of-way to proceed on through the intersection. I am sure most of you are familiar with that.”

Plaintiff’s evidence: Plaintiff’s personal testimony tended to show that he was driving a 1958 Chevrolet station wagon north-wardly on Bales Avenue approaching the intersection with 37th Street. The streets were almost level, although going north on Bales one proceeded up a very slight incline. Plaintiff was well acquainted with the intersection, since he lived only a short distance south of the intersection and had resided there for many years (since 1925). He had no eye trouble, but wore glasses and was wearing them at the time. His vehicle was in good shape, the windshield was clear, the brakes were in good condition and so was the horn.

As the plaintiff proceeded north on Bales Avenue his car was moving east of the center line of Bales and about two feet out from the east curb line. His speed was 20 to 25 miles per hour. He observed the slow sign located at the intersection with 37th Street. He was familiar with the sign, which was 10 to 12 feet back from the 37th Street, and he had seen it approximately fourteen times per week for many, many years. There was a hedge on his right but no trees, and the low hedge, with which he was familiar, did not interfere with his vision to the right. When plaintiff reached the slow sign he had slowed his car to approximately 10 to 11 miles per hour. At that particular time he observed defendant’s Chrysler station wagon approaching from his right some 75 to 90 feet away. At one time plaintiff said “about 75 feet”; at another, “90 feet.” At another time he said, “I still say between 75 to 90 feet.” Plaintiff’s foot was not on the brake but on the accelerator.

Plainitff knew there were no slow signs on 37th Street. He thought that defendant’s station wagon was approaching at 20 to 25 miles per hour. “He wasn’t going fast.” However, plaintiff proceeded on across the intersection with no change of speed so that at the time of the collision his station wagon was moving not in excess of ten to twelve miles per hour. He says that when he put his foot on the accelerator it didn’t move the car quick enough to get out of the way of defendant’s station wagon which was approaching from the east, and out only three or four feet from the north curb line of 37th Street; and that the front end of defendant’s Chrysler station wagon came in contact with plaintiff’s vehicle immediately behind the right front fender. At the moment of collision, the front of plaintiff’s vehicle had reached a point even with the north curb line of 37th Street. Plaintiff testified: “It looked likq the man was slowing up as I entered the intersection and then as he got about 30 or 35 feet from the intersection. I saw the man was looking north in the middle of the block there, about, and then all at once it picked up speed.”

Plaintiff further testified that, at the time of the collision, he had traveled from the slow sign 10 feet up to the intersection and the front end of his car had reached the north curb line of 37th Street. He had traveled this distance at 10-11 miles per hour, while the Chrysler moved the distance from 75 to 90 feet to the intersection. After plaintiff saw the Chrysler approaching he kept watching it. “I couldn’t help watching it I was going through, starting through the intersection.” The Chrysler had approached some 40 feet when plaintiff observed its driver looking north. Plaintiff was then halfway across the intersection. Plaintiff’s foot was then on the accelerator. “I had just put my foot back on the accelerator.” At no time did plaintiff sound his horn, apply his brakes or swerve. Neither did the Chrysler swerve. Plaintiff just tried to get out of the way of the approaching Chrysler. At one place plaintiff said that defendant’s driver looked forward at the instant of the impact. At another time he said it was hard for him to recollect whether he ever saw the driver of the Chrysler look forward toward plaintiff’s car after plaintiff saw that the driver was looking to the north. Plaintiff also said that “he was trying to get out of the way. I thought he [Jackson] didn’t see me.”

Plaintiff was unconscious after the collision and was removed to Menorah Hospital where he subsequently regained consciousness.

Defendant’s evidence: The testimony of William Jackson, Jr., tended to show that it was part of his regular job to drive defendant’s station wagon when the regular driver was off duty. On the date in question he had been making deliveries for defendant and was returning to the company’s plant before noon. As he drove west on 37th Street and approached the intersection with Bales Avenue he was traveling at 20 to 25 miles per hour. He knew of the “slow sign” on Bales Avenue and knew there were no traffic controls at the intersection for 37th Street traffic. As he more closely approached the intersection he slowed to 15 to 20 miles per hour since there was a hedge and a tree to the left that limited his ability to see to his left down Bales Avenue to the south; however, he looked in that direction for traffic. He testifiecT: “I looked to my left, I couldn’t see him. I looked to my right, I didn’t see no traffic and I looked back to my left and there was a car right on me. * * * I was right in the intersection”, and so was the “Chevy.” The witness attempted to swerve the Chrysler to the right to escape plaintiff’s car, but had no time to do anything else, and the collision occurred.

While the witness first said he had no judgment as to the speed of the “Chevy” he later testified: “I would judge about 25 to 30 miles an hour.” The front end of the “Chevy” hit the front door of the Chrysler, that is, the right front tire and wheel of the “Chevy” hit the left front door of the Chrysler, then the back ends of the two vehicles came around together, and the Chrysler went kind of angling off to the right while the “Chevy” went across 37th Street and into a lady’s yard to the west. Defendant’s Exhibit No. 3 shows the damage to the left front door and rear portion of the left front fender of defendant’s Chrysler. No damage to the headlights and front bumper appears. The witness examined defendant’s Exhibit 3 and pointed out to the jury where the “right tire and front wheel” of the “Chevy” hit the Chrysler. When an ambulance came, they put plaintiff in the ambulance and took him away. Witness then called the police station.

On cross-examination the testimony of the witness tended to show that he knew he might have difficulty seeing cars approaching from the south on Bales Avenue; however, when he looked forward “no car was approaching.” His eyesight was good, the weather was kind of cloudy and the streets were damp. It was broad daylight and he had slowed before he went into the intersection. When he entered the intersection his speed was “ten or fifteen, maybe.” He did not see the “Chevy” until the Chrysler was in the intersection and it was then right on him. He did not even get his foot on the brake before the accident happened. It had already happened. The “Chevy” had hit him. He knew it was an open, public intersection and that people used it. He said: “Coming down the little slope, yes, you can not see.” The hedge was there and the tree was there and, after he got past these, the “Chevy” was on him and hit him. The Chrysler was in the intersection when the “Chevy” hit him. He had put on his brakes as he approached the intersection to decrease his speed before he entered the intersection. Again he said: “I looked to my left, then I looked to my right before I got into the intersection. * * * I looked both ways and then I looked to my left and my right, and I looked back to my left and he was on me, yes.” The “Chevy” was then a foot or so away. He also said: “I looked to my right, and when I looked back around, it was there. * * * I was a little bit on the other side of the intersection when it happened.” He later admitted that he had previously correctly testified that the collision happened in the center of the intersection, that is, in the center of each of the two streets, 37th and Bales, and that he had also said: “Well, before I got in the intersection I didn’t see it, but after I got in the intersection, I was halfway in, about twenty-four or twenty-five feet. * * * I.didn’t see it at all from that point.” Again he -said: “When I was in the intersection I saw it, he was then fixing to hit me.” The Chrysler had a good set of brakes and they had slowed up the car prior to entering the intersection in accordance with the witness’ prior testimony.

Defendant also offered in evidence excerpts from the Menorah Hospital records, in part, to the effect that the patient (plaintiff) “stated that the last thing he remembered was that he was driving his car and the next that he was being put in an ambulance. He has no memory of what happened.”

Near the close of defendant’s evidence, defendant’s counsel, out of hearing of the jury, advised the court that he desired to offer and read to the jury, on behalf of the defendant, Ordinance No. 3122.1 of the City of Kansas City, Missouri, “an ordinance that was pleaded in plaintiff’s petition but was not offered * * ⅜.”

Thereupon, the record shows that counsel for plaintiff spoke as follows: “MR. POP-HAM : I obj ect to it for the reason that although we pleaded it in our petition we did not introduce it and we did not introduce it because we have elected in this case to submit solely on the humanitarian doctrine, and with that election in the record this becomes antecedent or primary negligence, which hasn’t got any more to do with the submission Your Honor will make in this case than green cheese in the moon. It would merely complicate the issues in this case. * * * Since we have elected and will elect to submit solely on the failure of this man to slow his vehicle and let us get by and not have this collision, it could not possibly have any legal propriety in this evidence.” (Italics ours.)

Prior to that statement by plaintiff’s counsel, the cause had been tried by both parties under the pleadings as they stood when the trial opened and, except for counsel’s statement, as hereinbefore set out, no election was made of record and there was no express dismissal of the assignments of primary negligence as contained in plaintiff’s petition.

Defendant’s counsel thereupon insisted that, the plaintiff by his mere statements had made no binding election to submit on the humanitarian doctrine (“I don’t know that they have made any election * * * ”) and stated that the ordinance was being offered solely because it was admissible under primary negligence, since the ordinance dealt with “right-of-way at an intersection.” While the court stated it (the court) felt that plaintiff’s counsel was bound by his mere statement without any further actual election of record and without any actual dismissal of the assignments of primary negligence as contained in the petition, nevertheless, the court permitted the ordinance to be read into the record, since it was in effect at the date of the collision. Plaintiff’s counsel thereupon stated: “If he reads it I am going to give an instruction withdrawing it because it will have no part in this case.” The mentioned ordinance has hereinbefore been set out in full, as offered and read in evidence. Also Instruction No. 4, hereinafter set out, was given at plaintiff’s request.

Defendant further offered in evidence numerous photographs taken of the respective vehicles immediately after the collision by a news photographer. It is impossible to review this important evidence in an opinion or to state the conclusions that may be drawn from it.

At the close of all the evidence, the cause was submitted to the jury by plaintiff’s Instruction No. 1, which submitted humanitarian negligence in failing to slacken speed. The instruction was, in part, as follows: “ * * * that it is duly shown and established of record that at the time of the collision referred to in evidence the driver of the westbound motor vehicle was in the employ of defendant company and acting in the scope of his duties, and if you believe from the evidence that plaintiff and his northbound car were in imminent peril and danger of being injured by collision of said cars, and if you find that said driver Jackson knew or by the exercise of the highest degree of care would have timely known of the above submitted imminent peril and danger of plaintiff in time thereafter by the use of the highest degree of care to have sufficiently slowed the speed of said westbound vehicle with the use of the means at hand and with safety to said vehicle of defendant and its driver, and if you find that said driver Jackson failed to use such care so to do, • and if you find that as a direct' result of his above-submitted failure, said vehicles collided at said intersection and that plaintiff Mr. Finke was thereby injured and his car damaged, if you so find, then your verdict must be for plaintiff Mr. Finke, and this is the law and is true, even if you should believe that Mr. Finke was himself negligent, and thereby directly contributed to said collision, but did not solely cause same, if you so find." (Italics ours.)

Thereafter, plaintiff requested and the court gave plaintiff’s Instruction No. 4 as follows: “You are further instructed that in opening statements and during the trial references have been made to some ordinance and to right of way or to antecedent or prior negligence or alleged acts of negligence before plaintiff was in imminent peril, if you so find he was, as submitted in instruction one, and in this connection, this case is submitted under what is known as the humanitarian doctrine, and under the same, if you find-all the issues submitted in said instruction one, in favor of plaintiff Mr. Finke, then contributory negligence, if there was any, on the part of Mr. Finke, though directly contributing to the collision, would not be a legal defense available to defendant, and in deciding the issue of liability on which the case is submitted in instruction one, you are not to base a verdict on any antecedent or prior negligence, if any, taking place before the submitted imminent peril, if any, of plaintiff came about.”

The court also gave Defendant’s Instruction 6 to the effect that “plaintiff is required to prove by the greater weight of the credible evidence that defendant was negligent, as defined in other instructions” and if plaintiff failed to do so their verdict should be for defendant.

In the course of argument by defendant’s counsel to the jury, after a most bitter attack upon the - credibility, weight and value of plaintiff’s personal testimony in the case, counsel proceeded as follows: “The Court tells you in its instructions here to consider the physical facts. By that he means the way these cars came together. And you men nearly all drive, most of you are very experienced drivers, and you know what the situation was. The burden was on Mr. Finke out there, he had the 10-mile sign. He had the duty to yield the right-of-way.

“MR. POPFIAM: Just a minute, Your Honor, I object to that because it is entirely outside the instructions of the Court. Your Honor has told them in instructions that the sole question here is whether or not he should have slowed and let this man by and now he is arguing prior and antecedent matters' that Your Honor tells him he can’t argue and he is absolutely flaunting the instructions of this Court and it is improper.

“THE COURT: You will follow the instructions as given to you by the Court.
“MR. VARDEMAN: I don’t mean to argue anything improper, men.
“Mr. Popham has failed to call your attention to one thing in this Instruction No. 1. 'This is the law and it is true, even if you should believe that Mr. Finke was himself negligent and thereby directly contributed to said collision but did not solely cause the same.’
“You have got to decide who was at fault. That is your duty. If you believe Mr. Finke caused the accident as the Court tells you — he uses that word ‘did not solely cause the same,’ then he can’t recover at all, and that it why I say to you consider what the facts were, the physical facts as shown by that intersection and the way these cars came together * * *.
“Mr. Popham referred to our driver, Mr. Jackson, a young colored boy we brought in here. * * * He is out of this thing now completely. I think he told you a straight-forward story and a reasonable story. Traveling along as he did, having the 10-mile protection that he did, he had the right to go across that intersection, and, now, here’s a man who runs into him, and I say runs into him because I think that is what the facts are, and comes up now and changes his testimony and moves the cars all around and then says, ‘Well, I think I am entitled to recover because under this thin humanitarian submission, if the jury believes all these things, then I might get by.’
“MR. POPHAM: If Your Honor please, I must object to him referring to Your Hon- or’s instructions as thin submission of something. It is improper and the lawyer knows it and he is again flaunting the instructions of this Court. I object to that expression about Your Honor’s thin instructions, because Your Honor hasn’t given any thin instructions that I know anything about. I don’t think counsel ought to do that.
“THE COURT: I will sustain the objection.
“MR. VARDEMAN: Well, maybe I shouldn’t have said the instructions were thin, but the evidence was certainly thin. I just ask you; members of the jury, to use your own common sense in this matter.”

Was prejudicial error committed in the admission of the Kansas City Right-of-Way Ordinance No. 3122.1, which was offered and received in evidence at defendant’s request? This ordinance was1 pleaded in plaintiff’s petition. From the opening statements of the parties, it is apparent that both parties relied upon it — plaintiff to support an assignment of primary negligence and defendant to support one of its defenses. Further, both parties tried the case on the pleadings as they stood at the opening of the case, and it was not until almost at the close of defendant’s evidence that this ordinance, pleaded by plaintiff, was offered by defendant.

Plaintiff’s objection to the admission was based upon his statement that, “We have elected in this case to submit solely on the humanitarian doctrine.” Subsequently counsel for plaintiff said, “since we have elected and will elect to submit solely on the failure of his man to slow his vehicle and let us get by and not have this collision, it could not possibly have any legal propriety in this evidence?’ (Italics ours.) Even after opposing counsel said “that is a matter we will have to fight out at some later date” as to whether or not plaintiff had made a humanitarian cáse, and later defendant’s counsel stated, “Your Honor, I don’t know that they have made any election * * ⅜ ”, still plaintiff’s counsel made no attempt to amend his petition. He asked no dismissal of any of the assignments of primary negligence set out in his petition. While plaintiff’s counsel insisted “I am bound because I have taken that stand here” and the court said, “I think with that understanding he is bound by it”, nevertheless the court did not fully accept counsel’s statement and promise to subsequently elect and submit his case to the jury on humanitarian negligence alone, at least not to the extent of preventing defendant’s counsel from reading the offered ordinance into evidence.

We must further keep in mind that this ordinance governing the rules of the road with reference to right-of-way at intersecting highways had been fully discussed by the parties in their opening statements and if the jurors were not already fully aware of the rules of the road with reference to right-of-way at intersections they certainly didn’t obtain any new information from hearing the ordinance read to them.

Motor vehicles have been more or less in common usage for more than fifty years, and in this day of their almost universal use and operation it could hardly be assumed that the members of a panel of jurors from Kansas City would not be fully aware of the mentioned provisions of the city ordinance or of the state laws substantially to the same effect. See Sec. 304.021 (Laws 1953, p. 587) and see Sec. 304.020 RSMo 1949, V.A.M.S. and prior revisions back to the Rules of the Road as set up in Laws 1917, pp. 403, 414, Sec. 10(4).

While trial courts may act upon statements of counsel in the trial of a cause, we find no cases to the effect that the court is required to act thereon, absent affirmative action taken by counsel at the particular time, as counsel could have taken in this case by affirmatively dismissing the assignments of primary negligence and settling the matter definitely, and before the close of all the evidence in the cause. In the case of Davis v. Chicago & E. I. Ry. Co., 338 Mo. 1248, 94 S.W.2d 370, 373(9), the court said: “Plaintiff’s counsel stated during the examination of witnesses that: We do not plead interstate [commerce], anyhow.’ ‘Interstate commerce has nothing to do with .this case other than if the engine was used in interstate traffic, and that is all I want to know.’ ” In that situation this court said : “We deem what plaintiff stated orally not controlling. Without the petition being amended, what defendant did should control.” (Italics ours.)

Assuming without deciding that counsel’s 'mere statement to the trial judge in the course of the trial was binding upon the plaintiff, if the trial judge accepted and acted upon it, nevertheless, in view of the fact that plaintiff did not amend his pleadings in-any manner, nor offer to do so, he left the-court free to accept his statement or disregard it, as he deemed proper, but in this-case the court did not act upon it to the extent of excluding the ordinance in question.

On this appeal appellant insists that: the reading of the ordinance to the jury-injected plaintiff’s alleged contributory negligence and antecedent negligence into a. humánitarian case; however, we think it clear from the record that, at the time the ordinance was offered and subsequently - read to the jury, the case was not solely a. humanitarian case, and the action of the-trial court is a clear demonstration of the fact that the court, at the particular time, did not consider the case solely as a humanitarian case. The court’s ruling recognized that the assignments of primary negligence were still before the court and the-jury; and that plaintiff’s contributory negligence was a proper defense under the pleadings as they then existed. We must, and do hold that the court did not commit-error in permitting the ordinance to be read' in evidence to the jury. In any event, the error, if any, was not prejudicially erroneous under the facts of this case. In view of the record as presented here, it is unnecessary to review the numerous cases cited', by appellant supporting the well-recognized rule that it is error to inject evidence of' contributory negligence and antecedent neg- - ligence into a humanitarian case.

Subsequent to the close of all the evidence, it is true that the plaintiff did, in fact,. elect to and did submit his case to the jury-under the humanitarian doctrine alone, as. 'hereinbefore set out in plaintiff’s Instruction No. 1. Such procedure is not at all unusual; however, plaintiff’s instruction submitting the case was most unusual. The instruction advised the jury that plaintiff’s. contributory negligence, if any, was no defense in this humanitarian submission, nevertheless, the instruction in effect told the-jury that, if the collision and injuries resulted solely from the action and conduct of the plaintiff alone, the plaintiff could not recover. Plaintiff-appellant’s own Instruction 1, in fact, gave the jury “a roving commission”, without help or guidance, to determine a fact issue.

Plaintiff’s counsel had argued to the jury in the closing portions of his opening argument somewhat as follows: "They [defendant] have no defense on the facts. And I come back to where I started when I made my opening statement, that the sole issue in this case is whether or not the man looked where he was going and if he had used the highest degree of care and seen this car and just made one friendly little touch of the brake and let him [plaintiff] go on uncrippled, enjoying life, and his failure to do it has resulted in this * * (Italics ours.)

However, we think it is clear from plaintiff’s own Instruction 1 that plaintiff had, ún fact, submitted two questions to the jury; one on defendant’s humanitarian negligence and the other on plaintiff’s conduct as the “sole cause” of the collision and that under plaintiff’s own instruction and the facts in evidence, the jury could find that plaintiff’s :action and conduct was the sole cause of the «collision and injury.

The next question presented is whether or not the argument complained of, wherein the defendant’s counsel reviewed the physical facts and argued “sole cause”, was prejudicially erroneous under the facts and instructions shown by the record in this case, and whether such argument in any of the respects complained of by appellant was prejudicially and reversibly erroneous.

After the court gave plaintiff’s Instruction No. 1 the defendant’s counsel in argument began to make full use of the exception noted at the close of plaintiff’s instruction. He argued that plaintiff’s action, as shown by the evidence, was the “sole cause” of the collision and damage. Counsel further reviewed plaintiff’s testimony that Mr. Popham had not sent him to Dr. Callaway to determine his physical condition; that he picked the name out of the telephone book; and that he found the name by looking under physicians, and selected one under ear specialists. Counsel then pointed out how Mr. Popham had interfered and said to counsel: “Paul, if you want to save time on that, there is no secret about it, I recommended Dr. Callaway to him because I wanted a test of his ears. Let’s don’t waste time over trivialties.” Counsel further reviewed conflicts between plaintiff’s prior deposition and his testimony before the jury and advised them, without objection, as follows: “It is because they were trying their level best to squeak by and get an instruction on imminent peril cmd they knew to find Finke in a position of imminent peril they had to get the Chrysler further back and they had to slow down Finke’s speed.” Subsequently counsel proceeded as follows: “Why all these changes ? Why are they changing their story now? Where was his car at the point of impact ? There is a good question. Mr. Finke says, ‘The front of my car was at the north curb’ * * *. If the Chrysler had hit the Chevrolet as Mr. Finke says, don’t you think there would be some damage on the front? Don’t you think that the headlight would have been broken, at least?” Counsel then pointed out what the witness said was “the imprint of Finke’s wheel” on the left side of defendant’s station wagon. Counsel then reviewed the hospital record and added: “I don’t know when he decided that he was in the intersection first or when he decided that he was hit by our car. I leave that up to you * *

All of these arguments were made without objection. Thereafter the matters here-inbefore quoted and relied upon for the reversal of this case took place. The objections were made after defendant’s counsel had argued that “the court tells you in its instruction here to consider the physical facts. By that he means the way these cars came together.” (Italics ours.)

We think the argument subsequently made, and now relied upon by appellant, was clearly invited by counsel for the plaintiff in his own argument and by plaintiff’s own instruction to the jury. It is true that counsel for defendant sought to argue plaintiff’s testimony and purpose in changing his testimony and so referred to “this thin humanitarian submission,” but, after objection was made and sustained, plaintiff’s counsel asked for no further relief. The defendant’s counsel then proceeded to tell the jury, “Well, maybe I shouldn’t have said the instructions were thin, but the evidence was certainly thin. I just ask you, members of the jury, to use your own common sense in this matter.” It appears that plaintiff was satisfied with the court’s action at the time.

In support of appellant’s assignment of error with reference to this particular portion of defendant’s argument to the jury, numerous cases are cited which hold it to be prejudicial error to argue contributory negligence and plaintiff’s antecedent negligence in a humanitarian negligence case. We have a very different situation here from the usual case in view of plaintiff’s Instruction No. 1. None of the cited cases are applicable under the particular facts of this case which opened up the issue of “sole cause” on a factual basis.

Most of the cases relied upon by appellant involve appeals where instructions offered by defendant permitted the consideration of contributory and antecedent negligence in a humanitarian case. See Burks v. Wilson, Mo.Sup., 356 S.W.2d 121, 127;, Catanzaro v. McKay, Mo.Sup., 277 S.W.2d 566, 570; Sheerin v. St. Louis Public Service Co., Mo.Sup., 300 S.W.2d 483, 489.

Apppellant also complains bitterly of the court’s admonition to the jury to “follow the instruction given you by the Court.” Appellant says that this ruling “was the tacit approval and sufferance” by the court of defendant’s position; however, the argument was invited by plaintiff’s Instruction No. 1, and plaintiff’s method of trying and submitting his case.

It is our conclusion from a full consideration of the entire record that no prejudicial or reversible error appears.

The judgment is affirmed.

All concur.


author: DALTON, Judge.

text:
    STATE ex rel. CLAY EQUIPMENT CORPORATION, Relator, v. Honorable Richard C. JENSEN, Judge, Division 13 of the Circuit Court of Jackson County, Missouri, Respondent.
    No. 49418.
    Supreme Court of Missouri, En Banc.
    Jan. 14, 1963.

      Rufus Burrus, Independence, for relator.
    Russell D. Jacobson and Max W. Foust, Foust & Lyons, Kansas City, for respondent.
   DALTON, Judge.

This is an original proceeding in prohibition. Relator seeks to prohibit the respondent Judge from proceeding with the trial of a $500,000 personal injury damage suit instituted by one Charles Elliston in the Circuit Court of Jackson County against relator, Clay Equipment Corporation. Relator is a corporation organized- and existing under the laws of the State of Iowa, and not licensed to do business in Missouri. Relator’s “Special Plea to Jurisdiction of Defendant Clay Equipment Corporation” was filed and overruled and respondent will proceed to try the cause, unless prohibited by this court.

In his petition the plaintiff, Elliston, alleged : “ * * * that said corporation has by and through its agents, servants and employees committed a tort as hereinafter described against the plaintiff herein, a resident of the State of Missouri; that the aforementioned tort was committed within this state; that since said corporation has no regularly and lawfully appointed agent in Missouri for the reception of service of process that plaintiff, under the provisions of sub-sections 2-5, Section 351.630 R.S.Mo., 1961 Supp.Mo.Laws 1961, V.A.M. S., directs the Secretary of State to immediately cause copies of this petition to be forwarded by registered mail, return receipt requested, to the secretary of said corporation whose name and address is Roger L. Clay, Cedar Falls, Iowa.” Service of process was attempted in the manner directed and the defendant (relator herein) appeared specially to contest the circuit court’s jurisdiction.

Respondent admits that “The basic question involved here is whether jurisdiction over the person of the relator was acquired by service of process upon it under the provisions of paragraph 2, Section 351.630 R.S.Mo., 1961 Supp.”; and respondent says that the question “narrows to the sole issue of whether the provisions of paragraph 2 (which went into effect on October 13, 1961) are applicable to the casualty which occurred on February 25, 1961 and gave rise to the cause of action which relator seeks to prohibit respondent from hearing.”

It is therefore apparent that the case involves the construction of subsection 2 of Sec. 351.630 RSMo 1959, as amended Laws 1961, p. 257 (Supp. Revised Statutes of Missouri Annotated^ page 358), V.A.M.S. The particular portibn of the statute to be construed is as follows:

Sec. 351.630(2). "If a foreign corporation commits a tort, excepting libel and slander, in whole or in part in Missouri against a resident or nonresident of Missouri, such acts shall be deemed to be doing business in Missouri by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the secretary of state of Missouri and his successors to be its agent and representative to accept service of any process in any actions or proceedings against the foreign corporation arising from or growing out of the tort. Service on the secretary of state of any such process shall be made by delivering to and leaving with him or with any clerk having charge of the corporation department of his office, duplicate copies of the process. The committing of the tort shall be deemed to be the agreement of the foreign corporation that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served personally within the state of Missouri.” (Italics ours.)

Respondent’s position is also well stated in his return to our preliminary rule, as follows: “ * * * that despite the fact that the cause of action pending before respondent under the style of Charles Curtis Elliston v. Martin Dale Shrout, et al. (Jackson County Circuit Court No. 127,792) arose on February 25, 1961, and that service of process in said cause was effected under the provisions of sub-section 2-5, Section 351.630 R.S.Mo. (1961 Supp.), which did not become effective until October 13, 1961, that such service of process was valid, lawful and effective because the aforesaid statutory provisions only modified an existing remedy or gave to plaintiff Charles Curtis Elliston a remedy which he did not previously possess (that is to say, another method of service of process whereby jurisdiction over the person of relator could be obtained), and that said provisions apply to all actions falling within the terms of said statutory provisions whether commenced before or after their enactment, unless a contrary intention has been expressed by the legislature, and that no such contrary intention is so expressed in said statutory provisions; and further that said service of process has not disturbed, altered, impaired, created, defined or regulated any of relator’s substantive or vested rights.”

The parties agree that the issue for determination is whether the quoted part of the Act is prospective in its application and substantive in character, as contended by relator, or whether it is exclusively remedial and procedural in character and the statutory language implies a retroactive construction and application, as contended by respondent.

In this connection respondent relies particularly upon State ex rel. Sweezer v. Green, 360 Mo. 1249, 232 S.W.2d 897, 900 (4-5), 24 A.L.R.2d 340, wherein the court said: “ ‘ “Retroactive” or “retrospective” laws are generally defined, from a legal viewpoint, as those which take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past.’ * ⅜ * A statute is not retrospective because it merely relates to prior facts or transactions but does not change their legal effect, or because some of the requisites for its action are drawn from a time antecedent to its passage, or because it fixes the status of a person for the purpose of its operation. * * * We have many times held that a statute is not retrospective in its operation within the constitutional prohibition, unless it impairs a vested right. * * * Nor is an act retrospective if it but substitutes a remedy or provides a new remedy.” (Italics ours.) 232 S.W.2d 900(4 — 5).

Respondent concedes “that there is a general prohibition against retroactive construction or application of laws,” but insists that there is an exception to this rule “where the law seeking retroactive application or construction is remedial or procedural in its nature, unless a contrary intention has been expressed by the legisla-tureand that “this is so, providing the enactment doesn’t disturb, alter, destroy, impair, create, define or regulate substantive or vested rights.” (Italics ours.) And see Article I, Sec. 13 Constitution of Missouri 1945, V.A.M.S., which in substance bars the Legislature of this state from passing a retroactive law, as follows: “That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.”

The mentioned constitutional provision does not apply in some cases, as for example, to a statute dealing only with procedure or the remedy. In such case the statute applies to all actions falling within its terms, whether commenced before or after the enactment, that is, unless a contrary intention is expressed by the legislature, and a statute affecting only the remedy may apply to a cause of action existing at the time the statute was enacted. See Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852. Darrah v. Foster, Mo.Sup., 355 S.W.2d 24, 29(3); Aetna Insurance Co. v. O’Malley, 342 Mo. 800, 118 S.W.2d 3, 8. The rule governing the applicability of a procedural statute is stated in Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40, 43, as follows: “No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. Where a new statute deals with procedure only, prima facie it applies to all actions — [including] those which have accrued or are pending and future actions.”

Is subsection 2 of the questioned statute prospective and substantive in character or is it exclusively remedial and procedural in character? A careful examination of the statute is required in order to determine the legislative intent as expressed by the words used in the statute.

The basic rule of statutory construction is to seek the intention of the lawmakers and, if possible, to effectuate that intention, and the court should ascertain the legislative intent from the words used, if possible, and should ascribe to the language used, its plain and rational meaning. State ex rel. Wright v. Carter, Mo.Sup., 319 S.W.2d 596, 599; A. P. Greene Fire Brick Co., v. Missouri State Tax Commission, Mo.Sup., 277 S.W.2d 544, 545(3); Tiger v. State Tax Commission, Mo.Sup., 277 S.W.2d 561, 564(2, 3); Baker v. Brown’s Estate, 365 Mo. 1159, 294 S.W.2d 22, 25(3).

We think that subsection 2, of Sec. 351.630 RSMo 1959, as amended Laws 1961, p. 257, V.A.M.S., evidences a clear intention on the part of the Legislature that the statute shall operate prospectively only. It expressly says: “If a foreign corporation commits a tort.” This statement points to a happening in the future. The statute does not say, “If a foreign corporation has committed a tort at sometime in the past, or before, this statute goes into effect.”

The statute further states: “ * * * such acts shall be deemed to be doing business in Missouri * * * and shall be deemed equivalent to the appointment [et cetera].” (Italics ours.) Again the statute-evidences an intention to look to the future. The closing sentence of the subsection also evidences an intention that the statute apply prospectively, since it states the results which shall follow the commission of the tort.

We cannot construe the statutory provision to apply to the commission of torts which predated the effective date of the Act. To do so would be to attach a new obligation or duty and impose a new disability in respect to prior acts and transactions. To apply the statute retroactively would be to change the legal effect of past transactions. The commission of a tort by the foreign corporation imposed no such obligation or duty, nor did it have such a legal effect, when the alleged tort was committed. Further, a statute must be construed, if possible, so as to give it force and effect and render it operative. Spicer v. Spicer, 249 Mo. 582, 155 S.W. 832, 837 (10, 11); State ex rel. Perkins v. Long, 275 Mo. 169, 204 S.W. 914, 916(1, 2). If a statute on its face is open to two reasonable constructions, it will be given that which makes it effective. State ex rel. McAllister v. Dunn, 277 Mo. 38, 209 S.W. 110, 112 (3).

Further, as a general rule, statutes are construed to operate prospectively unless the legislative intent that they be given retrospective or retroactive operation clearly appears from the express language of the acts, or by necessary or unavoidable implication. Jamison v. Zausch, 227 Mo. 406, 126 S.W. 1023, 1027; State ex rel. Harvey v. Wright, 251 Mo. 325, 158 S.W. 823, 829(12) ; Barbieri v. Morris, Mo.Sup., 315 S.W.2d 711, 714(4); 82 C.J.S., Statutes § 414, p. 981. Many cases hold that acts of the Legislature must be held to operate prospectively only, unless a different legislative intention is clearly to be gathered from their terms. Clark Estate Co. v. Gentry, 362 Mo. 80, 240 S.W.2d 124, 129 (6).

In the case of Graham Paper Co. v. Gehner, 332 Mo. 155, 59 S.W.2d 49, Court en Banc held that income tax under an amendatory statute not going into effect during the first half of the calendar year and providing that specific rates should be levied for the calendar year named and annually thereafter, was held computable under the old law until the date the amendment went into effect and under the amended law thereafter. In this casé the Court held that: “A new or an amendment of an existing statute which reaches back and creates a new or different obligation, duty, or burden which did not exist before the new law itself became effective, or which makes the obligation or burden begin at a date earlier than the date of going into effect of the law itself, is retroactive in its operation and unconstitutional. A law is retroactive in its operation when it looks or acts backward from its effective date, and if it has the same effect as to past transactions or considerations as to future ones, then it is retrospective.” (59 S.W.2d 49, 50[l-3].)

. In Dye v. School Dist. No. 32 of Pulaski County, 355 Mo. 231, 195 S.W.2d 874, 879, the Court said: “A retrospective law is one that relates back to, and gives to a previous transaction, some different legal effect from that which it had under the law when it occurred. A statute is not retrospective merely because it relates to antecedent transactions, where it does not change their legal effect.” In the case of Willhite v. Rathburn, 332 Mo. 1208, 61 S.W.2d 708, 711 [7-9] the Court said: “The constitutional inhibition against laws retrospective in operation (section 15, article 2, Constitution of Missouri) does not mean that no statute relating to past transactions can be constitutionally passed, but rather that none can be allowed to operate retrospectively so as to affect such past transactions to the substantial prejudice of parties interested. A law must not give to something already done a different effect from that which it had when it transpired.” Also see 16A C.J.S. Constitutional Law § 414, p. 90.

In the case of In Re Armistead, 362 Mo. 960, 245 S.W.2d 145, 151, in considering the validity of certain assessments, the Court said: “No doubt the General Assembly intended to levy the 1947 tax upon the entire yield during calendar 1946. The original Act specifically provided that the tax ‘for the year 1947 and each succeeding year shall be based on the yield of said property during the preceding calendar year. * * * But the Act itself, and the levies made thereunder, did not become operative until July 1, 1946. The assessments here were for calendar 1947, and were based upon the properties’ yields for calendar 1946 under what are now Secs. 146.020 and 146.030. Thus, the yields upon which the assessments for 1947 were based included yields for six months before the law levying the tax became operative. Under such circumstances, the Act is clearly ‘retrospective in its operation.’ The assessments for 1947 violated the provisions of Art. I, Sec. 13, 1945 Const., prohibiting retrospective operation of laws.”

In the case of Hill v. Electronics Corporation of America, an Iowa case decided by the Supreme Court of Iowa, and reported in 113 N.W.2d 313, the court held that a statute providing that if a foreign corporation commits a tort in Iowa against a resident thereof, such action shall be deemed to be doing business for the purpose of service of process and to constitute the appointment of the Secretary of State as agent upon whom process could be served, was not merely a remedial and procedural statute, but affected substantive rights and did not operate retrospectively.

In the case of Gillioz v. Kincannon, decided by the Supreme Court of Arkansas, and reported in 213 Ark. 1010, 214 S.W.2d 212, the court held that an act providing that any non-resident not qualified to do business in the state, who shall do business or perform work within the state, shall be deemed to have appointed the Secretary of State as agent on whom process may be served in any action arising out of non-resident’s doing of business or performing work within the state, could not constitutionally be applied to a non-resident who came into the state to transact lawful business, but who had departed from the state prior to enactment of the act. The court further held that in its prospective operation the Act did not violate due process, or the privileges or immunities clauses of the constitution, but, insofar as the Act was retroactive, it was unconstitutional because it destroyed a substantive right enjoyed prior to the enactment of the Act.

In the case of Rozell v. Kaye, U. S. Dist. Court, S.D. Texas, 201 F.Supp. 377 (1962) the court said:

"This case is before the Court, again, on a motion of the Plaintiff to set aside an order quashing service of process issued in accordance with the memorandum opinion of this Court heretofore written and which is to be found in 197 F.Supp. 733.

“In that opinion, this Court held that Vernon’s Ann.Civ.St.Tex., Art. 2031b, Section 6, dealing with service of process on foreign corporations and nonresidents, in case of nonresidency after accrual of cause of action, by service on the Secretary of State, did not apply retroactively to cause of action arising prior to enactment and effective date of said statute.

“The Plaintiff, in his motion to set aside said order to quash, submits that this Court erred in such holding because said statute allowing substitute service is a remedial or procedural statute which is not subject to the Texas constitutional prohibition against retroactive laws.” After review of the authorities the court denied the motion.

In his return to our preliminary rule in prohibition the respondent stated (with reference to subsections 2-3 of Section 351.630 RSMo., 1959, as amended Laws 1961, p. 257, V.A.M.S.) as follows: “[Tjhat said provisions apply to all actions falling within the terms of said statutory provisions whether commenced before or after their enactment unless a contrary intention has been expressed by the legislature, * * * and further that said service of process has not disturbed, altered, impaired, created, defined or regulated any of relator’s substantive or vested rights.” (Italics ours.)

We have heretofore held that, from an examination of the section and subsections in question, the Legislature intended the Act to be prospective in its application; and that to hold otherwise would make the section unconstitutional and void, because it would change the legal effect of past actions and would impose new duties and attach new disabilities in respect to transactions or considerations already ■ past. In view of our holding with reference to legislative intent as expressed in the section, it is unnecessary to further consider respondent’s position and authorities.

Our preliminary rule in prohibition should be made absolute. It is so ordered.

All concur.