author: CLAYTON, Justice.

text:
    SOUTHWEST STATES, INC., a/k/a KROD TV and KROD Radio Station, Appellant, v. J. C. WOODARD, Ind. and d/b/a etc., Appellee.
    No. 5601.
    Court of Civil Appeals of Texas. El Paso.
    April 29, 1964.
    Rehearing Denied May 27, 1964.

      Scott, Hulse, Marshall & Feuille, Charles R. Jones, El Paso, for appellant.
    Joe Morgan, W. Barton Boling, El Paso, for appellee.
   CLAYTON, Justice.

Plaintiff (appellant here) -brought suit against defendant J. C. Woodard, Individually, and doing business as Woodard and Lee Homes and d/b/a Woodard and Lee Builders, and d/b/a Meridian Homes and/or Trustee for Meridian Homes (ap-pellees here), and against one James Sval-berg, d/b/a Ad Vent Unlimited, an advertising agency, asking joint and several judgment against defendants on sworn account, actual or apparent agency between the defendants, and alternately on quantum meruit. The account arose from promotional advertising time and services rendered by plaintiff in connection with a home-building project in El Paso, Texas. Judgment was rendered upon a jury’s answers to special issues. Defendant Woodard’s motion for judgment was granted and plaintiff was awarded judgment against Svalberg, from which order and judgment plaintiff alone appealed.

The jury found: (1) that the radio and television advertising was placed with plaintiff by Svalberg “on account of” J. C. Woodard, doing business as Woodard and Lee Homes; (2) that in placing such advertising Svalberg was not acting as agent for Woodard, d/b/a Woodard and Lee Homes or as agent for J. C. Woodard as Trustee for Meridian Homes; nor (3) did Woodard lead the plaintiff to believe that Svalberg was his agent; but (4) that “at the time he (Svalberg) placed the radio and television advertising” Svalberg was an independent contractor.

In its first point of error plaintiff complains that the trial court committed error in overruling its motion for judgment and in granting the motion of the defendant for the reason that the evidence and the findings of the jury established plaintiff’s right to recover against defendant Woodard d/b/a Woodard and Lee Homes on the alternate count of quantum meruit in as much as:

(A) The finding of the jury that Sval-berg was an independent contractor did not preclude plaintiff’s right of recovery against Woodard d/b/a Woodard and Lee Homes in absence of a finding of full payment of the contract price to the independent contractor ; and

(B) That such jury finding that Sval-berg was an independent contractor “at the time the advertising was placed” with plaintiff was not an ultimate issue and thus was no defense to quantum meruit in absence of a finding that Svalberg was authorized to or actually did act as an independent contractor on behalf of defendant J. C. Woodard d/b/a Woodard and Lee Homes “in placing” the advertising with plaintiff.

Complaint is made by defendant that this point of error is in violation of briefing rules 418 and 374, Texas Rules of Civil Procedure, and therefore should not be considered on this appeal. It is asserted that this point does not indicate any assignment of error in plaintiff’s motion for new trial to which it is germane; is not concisely or clearly stated, and is multifarious in its sub-points. Furthermore, although complaining of the overruling of plaintiff’s motion for judgment, such motion nowhere appears in the transcript. We must agree that there is some merit in these criticisms of this point of error, but, as noted by defendant in his brief, it is the policy of many courts to indulge a liberal construction in favor of the sufficiency of a brief, and we here exercise our discretion in considering this point of error if we fully understand the substance of the complaints contained therein. Lofland v. Jackson, 237 S.W.2d 785 (Tex.Civ.App., Ref. N.R.E.).

Under the heading “Statement of Facts” in this first point of error plaintiff sets out Special Issue No. Six, in answer to which the jury found that “at the time” Svalberg placed the radio and television advertising with the plaintiff, Svalberg was an independent contractor. Plaintiff then points out that the jury found that such advertising was placed on account of J. C. Woodard, d/b/a Woodard and Lee Homes; that plaintiff rendered the advertising in good faith, and with the expectation of being compensated by J. C. Woodard (which latter statement is subject to some conjecture) ; that the services were reasonably worth the sums asserted by plaintiff; that the defendant was introduced to a representative of plaintiff by Svalberg as “the man who pays the bills” ; that defendant knowingly received the benefits of plaintiff’s promotional advertising; and that the response of the jury to Special Issue No. Six only established that Svalberg was an inde-pendant contractor at the time he placed the advertising with plaintiff and nothing more. We were at some loss to determine just what was meant by the last quoted phrase of plaintiff’s “Statement of Facts” under this point of error: “that the response of the jury to Special Issue No. Six only established that Svalberg was an independent contractor at the time he placed the advertising with plaintiff and nothing more,” until we read plaintiff’s Third Point of Error in connection with Point of Error No. IB. This third point is also directed at Special Issue No. Six, and reads as follows:

“The trial court committed error by the submission of Question Number Six in the Court’s charge and rendering its judgment thereon pursuant to the pleadings and evidence of record in this cause inasmuch as:
“A. Question Number Six as submitted to the jury is duplicitous for the reason that the jury could have believed from the evidence that James Svalberg was an independent contractor at the time the advertising was placed with the plaintiff, which was the actual inquiry, but also believed that he was not acting nor authorized to act as an independent contractor for J. C. Woodard, d/b/a Woodard and Lee Homes, pursuant to the jury’s response to Question Number One of the Court’s charge, in placing the promotional advertising with the plaintiff; and
“B. Question Number Six and the jury’s finding thereon are not supported by sufficient evidence of probative value in the record to support the judgment of the trial court.”

The objection to the wording of this issue was preserved in plaintiff’s objections to the charge and his Motion for New Trial, and in substance, among other matters, is that, although the jury might find in answer to Special Issue No. One that the advertising was placed with plaintiff by Svalberg “on account of” J. C. Woodard, doing business as Woodard and Lee Homes, an affirmative answer to Special Issue No. Six would not constitute a finding that Svalberg thus acted as an independent contractor for Woodard, doing business as Woodard and Lee Homes. However, the intention of the jury may be fairly inferred that, in its affirmative answer to this question the jury found that no matter “on account of” what person or entity the advertising was placed, Svalberg was acting as an independent contractor, and such a finding is supported in the evidence. On this basis, plaintiff’s third point of error and so much of its first point of error as attacks Special Issue No. Six are overruled.

Plaintiff then follows the foregoing “Statement of Facts” with its subdivision A to Point No. One in which it argues at some length that although the question of full payment of the independent contractor’s compensation was an ultimate issue to the defendant’s grounds of defense, such a special issue was not requested by, the defendant nor submitted by the court, and the matter of full payment under the defendant’s contract with Svalberg was a matter of some dispute in the testimony. Plaintiff then makes the statement that “While it is well settled that a laborer who labored for an independent contractor does not thereby create an express contractual obligation against the owner who has contracted to have the work done, the laborer is entitled to recover so much of the contract price as is still unpaid by the owner and within the hands of the owner in the instances where the independent contractor fails and refuses to pay the laborer.” In support of this statement plaintiff cites Lonergan v. San Antonio Loan & Trust Co., 101 Tex. 63, 104 S.W. 1061 (1907). This case holds:

“The proceeding prescribed by the statute by which a materialman is permitted to fix a lien for material furnished by him and used in the erection of an inprovement does not create a debt against the owner of the property, but operates as a writ of garnishment would, and appropriates so much of the money in the hands of the owner as is then due and payable, or may become due and payable, to the contractor to the extent necessary to satisfy that claim.”

Plaintiff also cites Modern Plumbing Co. v. Armstrong Bros., 36 S.W.2d 1011, a Commission of Appeals adopted opinion. Both of the cited cases deal with procedure in fixing a lien, and are considered inapplicable here. Plaintiff admits that it has been unable to present any case in point with its above-stated position in the instant case, and also that there is no statutory lien to be established or enforced here. But plaintiff has pleaded quantum meruit and insists that recovery should have been granted against the defendant upon the basis of quantum meruit. In so far as plaintiff’s Point No. 1 relates to the elements of quantum meruit, it is sustained. Quantum meruit is founded upon the rule that it is inequitable for a party to refuse to pay for the benefits he received or for work performed for him with his knowledge and consent by someone who is authorized to expect remuneration therefor. Parks v. Kelley, 147 S.W.2d 821 (Tex.Civ.App., n. w. h.). This rule seems to precisely fit the situation presented to us by this record. There appears to be little doubt that the TV and radio advertising services which are the basis of this suit were furnished by plaintiff (with a proper expectation of remuneration therefor) to the defendant individually and in one or more of several capacities alleged in plaintiff’s petition, with defendant’s full knowledge and consent and with the benefits therefrom accruing to the defendant individually and in one or more of his several capacities; that there remains unpaid a balance due for such services; and that the defendant individually and in one or more of his various capacities now refuses to pay whatever remains of the reasonable value of such services. We feel that the evidence in this case fairly raises issues that should have been submitted to the jury on the stated elements of quantum meruit, and that the issues submitted by the trial court did not entirely cover this phase of the case. We have thus concluded that this case must be reversed and remanded for a new trial. Requested special issues were submitted by the plaintiff and refused by the trial court, and the matter properly preserved in plaintiff’s motion for new trial. Objection to the trial court’s refusal to submit the requested quantum meruit issues is raised in plaintiff’s fifth point of error, but this point is not discussed in detail here for the reason that it is violative of Rule 418 T.R.C.P. and is multifarious in that it “attempts to attack several distinct and alleged errors and rulings of the trial court” (Lofland v. Jackson, supra), and for the further reason that evidence adduced upon a new trial of this cause may require elimination of some of the requested special issues and redrafting of others.

Plaintiff’s fourth point asserts error in the refusal of the trial court to allow plaintiff to file its Requested Trial Amendment at the close of the evidence in the cause. This point is overruled because this is a matter addressed to the sound discretion of the court (Lone Star Steel Co. v. Owens, 302 S.W.2d 213, Tex.Civ.App., Ref., N.R.E.), and we find no abuse of such discretion.

Plaintiff’s sixth point of error is directed to the omission from the court’s charge of an issue inquiring whether Sval-berg was acting as an agent for Woodard d/b/a Meridian Homes in placing the advertising with plaintiff. We find no evidence in the record that would indicate that Woodard was ever doing business, or ever claimed to be doing business, as Meridian Homes. This point is overruled under the present state of the record, but may be clarified upon a new trial.

This leaves us with only the second point of error yet to be discussed. Special Issue No. 1, as submitted by the court, reads as follows:

“Do you find from a preponderance of the evidence, that the defendant, James E. Svalberg, placed the radio and television advertising involved herein on account of:
“1(a) J. C. Woodard, doing business as Woodard and Lee Homes?
“1(b) J. C. Woodard, Trustee for Meridian Homes, a joint venture of three corporations, Edgemere Development Company, Woodard Construction Company, the First Gold Medal Homes ?
“Anwer: ‘1(a)’ or ‘1(b)’
“We answer: 1A”

Plaintiff’s second point assigns error in the manner of submission of this issue for the reason that it precluded the plaintiff from obtaining a finding from the jury that the advertising was placed for the account of both Woodard d/b/a Woodard and Lee Homes and Woodard as Trustee for Meridian Homes. We feel that this is a valid objection to the issue as framed, in as much as there was some testimony which would support a finding that Woodard acted in both capacities in his dealings with Sval-berg. Should such be the evidence in the event of a new trial, the issue should be re-framed.

In attempting to correlate the various objections raised in plaintiff’s points of error with the evidence and charge of the court, we have had to deal with the error points out of their consecutive order, but believe that we have discussed all points and, as stated, have found error which requires us to reverse the judgment of the trial court and remand this cause for new trial.

Reversed and remanded.


source: Caselaw Access Project

author: NYE, Justice.

license: Public Domain

text:
    L. H. KOLBO et ux., Vera Street Kolbo, Appellants, v. A. N. BLAIR et ux., Lila Mae Blair, Appellees.
    No. 5.
    Court of Civil Appeals of Texas. Corpus Christi.
    April 30, 1964.
    Rehearing Denied May 28, 1964.
    Second Motion for Rehearing Denied June 18, 1964.

      Mrs. Vera Kolb, Davant & Fricke, Port Lavaca, for appellants.
    Phillip Wilson, of Brady, Drake & Wilson, Dallas, for appellees.
   NYE, Justice.

This is a suit to recover a deficiency judgment after a purported sale of mortgaged property under the powers given in a chattel mortgage.

The appellees, A. N. Blair and his wife, held a chattel mortgage on personal property belonging to the appellants L. H. Kolbo and his wife. They foreclosed and attempted to sell the property to themselves and credited the proceeds from the purported sale to the mortgage debt. Thereafter, they brought suit for the deficiency alleged to be due on the promissory note given to them as. part of the purchase price for a tourist court and its furnishings. The trial of this case was to the court without the intervention of a jury. A deficiency judgment was rendered on behalf of the appellees. The trial court filed, as part of the record herein, findings of fact and conclusions of law supporting its judgment. The appellants assign as error the action of the trial court in rendering a deficiency judgment contending that the purported private foreclosure sale of the personal property was invalid, that there was no evidence that the sale was fairly conducted, and that there was insufficient evidence to show either a fair or valid sale of the personal property.

The facts are substantially undisputed and are as follows: In October of 1959, appel-lees sold a tourist court located in Corpus Christi, Texas, to the appellants. The consideration paid by the appellants was as follows: (1) the sum of $15,000.00 cash which the appellants obtained through a loan from Guaranty Title and Trust Company of Corpus Christi. This debt was secured by a first lien deed of trust mortgage on the tourist courts and a first lien chattel mortgage on the furniture and fixtures of the tourist courts; (2) the transfer and conveyance of certain real estate located in Dallas, Texas; and (3) the execution and delivery of a promissory note in the amount of $13,874.73 (the basis of this suit) which was secured by second lien deed of trust on the tourist court and a second lien chattel mortgage on the furniture and fixtures in the tourist courts. The first lien notes to the Guaranty Title and Trust Company and the second lien notes to the appellees were payable in monthly installments.

The operation of the tourist courts was never a success. Some nine or ten months after the purchase, the appellants sold the courts to a third party by the name of Watkins (not involved in this case) who assumed both notes but made no payment on either of them. Because of such default, appellees instructed their trustee to foreclose on their second lien deed of trust on the tourist courts. Pursuant to the appel-lees’ instructions and after proper notice, the trustee sold the tourist courts in December of 1960 at public auction at the courthouse door. The appellees purchased the tourist courts for $7,500.00 subject to the first lien in favor of Guaranty Title and Trust Company, crediting the $7,500.00 on the second lien promissory note of the appellants. The appellants do not attack the validity of this sale which was held in accordance with the terms of the trust instrument.

Immediately following this sale by the trustee, the appellees made arrangements with the first lien holder, Guaranty Title and Trust Company, to forbear any action for several months on its first lien deed of trust and first lien chattel mortgage in order to give them an opportunity to attempt to work out the operations of the tourist courts. Following the making of these arrangements, the appellees took possession of the tourist courts and purported to conduct a private sale, either that afternoon in Corpus Christi, or the next day in Dallas, Texas. The record shows that no notice of the sale was given to the appellants or, in fact, to any prospective purchaser. The sale of the furniture and fixtures by the appellees’ attorneys to themselves on behalf of the appellees was for the sum of $100.00 subject to the first lien of the Guaranty Title and Trust Company. The $100.00 was likewise credited to the promissory note. Shortly thereafter, the appellees brought this suit on the promissory note for the balance due and owing, plus interest and attorney fees. Judgment was entered in favor of the appellees in the amount of $7,207.00, together with interest at the rate of 6% (this being the amount of the second lien promissory note of $13,874.73, less payments made by the appellants during the time they were in possession of the tourist courts, less a credit of $7,500.00 from the sale of the reality at the trustee sale, less a credit of $100.00 being the sale price of the furniture and fixtures at the chattel mortgage sale, adding attorney fees based on the unpaid balance’ and accrued interest on the note). The appellants have perfected their appeal to this court.

The appellees claim that the sale was a valid one and was held in accordance with the power given them in the chattel mortgage. The pertinent part of the chattel mortgage giving appellees the power of foreclosure at private sale without notice, reads as follows:

“ * * * on default, * * * said mortgagee, or the assigns, agent or representative of said Mortgagee are hereby authorized at Mortgagee’s option, to declare all said indebtedness due, and take actual possession of said property and to sell same at private sale without notice to mortgager * * *.
(The mortgage instrument then authorized an alternate method of foreclosure and sale by public action)
* * *. The said Mortgagee or assigns have power to receive money and make hills of sale of said property.” (Emphasis supplied.)

The appellees did not elect to seek judicial foreclosure by filing suit and sale as under execution. Such sales are presumed to be valid and fairly conducted. There, all the parties have notice, prospective purchasers have an opportunity to bid on the property, and the sale is conducted under the direction of the court. Nor did the appellees elect to foreclose and sell the mortgaged chattels at public auction, with published notice as authorized in the power given them in the subject mortgage instrument. Such a sale at public auction is a sale to the highest bidder — its object, a fair price — its means, competition — its results, a sale, presumed as a matter of law to be fairly conducted. In either of the foregoing type sales, a mortgagor attacking them has the burden of proving that the sale is invalid or that it was not fairly conducted. Here, the appellees elected to take actual possession and sell at private sale, without notice to the mortgagors, under the power given to them in the chattel mortgage instrument.

The general rule is well-settled in this state to the effect that the power to sell mortgaged property to the satisfaction of the indebtedness secured by the mortgage must be executed in strict compliance with the terms upon which such power 'is granted. Any sale that is attempted to be made without a strict compliance with the terms of the instrument defining such power and the method of its execution is unauthorized. Michael v. Crawford, 108 Tex. 352, 193 S.W. 1070, Fireman’s Fund Insurance Company v. Wilson, 284 S.W. 920 (Tex.Comm.App. Sec. A, 1926). This power of private sale does not eliminate the necessity of proving the existence of an actual sale nor does it relieve the mortgagee seeking to obtain a deficiency judgment from proving that the sale was fairly conducted. The Court with its equity powers should scrutinize the private sale before rendering a deficiency judgment. This is so because the mortgagee, charged with conducting the private sale (sometimes without notice to the mortgagor as in this case), is generally in control of the facts.

While the statement of facts is somewhat lengthy, that evidence pertinent to the sale, and whether it was fairly conducted, was quite brief. Quoting from the testimony of the attorney representing the appellees and who purportedly conducted the sale:

“My notes are not real clear. It is my recollection that a sale of the personalty took place- — I am not positive — a sale of this personalty took place subject to the first. Whether or not it is something we did in Dallas or whether we did it there, I have the vaguest recollection myself, and I could be mistaken, somewhat mimicking what McCulloch (the trustee at the trustee sale) had said about ‘Gather around all those interested and bid upon.’ The old man down in the corner said something to me about what sale or some comment but, be that as it may, whether it occurred there or at Dallas, a private sale was held, no bids were made, and no notice was given to the mortgagee — I should say mortgagor, and a $100.00 was bid by our firm on behalf of the Blairs and allowed against the debt. * * * I don’t know. I have the vaguest recollection of crying out there at the motel. Mrs. Blair (one of the appellees) does not recall it and I can’t look you in the eye and tell you I did it, because honestly I don’t know, and there is nothing in here that says so. * * * There was no notice whatsoever to either of the Kolbos (the appellants) or to any interested bidder. * * * She went into possession * * * a subsequent sale of that personal property either the afternoon of the 6th on the premises or the next day in Dallas when we got around to drawing documents.” (Emphasis supplied.)

The trial court found that a private sale was held on or about the 6th day of December, 1960. We recognize the rule that the trial court’s findings of fact will be upheld unless they are manifestly erroneous, and they will be overruled only when they are without any evidence of probative force to support them, or where they are so against the great weight and preponderance of the evidence as to be manifestly wrong. Banks v. Collins, 152 Tex. 265, 257 S.W.2d 97. And the further rule universally held by our courts in this state, that to test the sufficiency of the evidence to determine if it will support the trial court’s findings, we must give credence only to the evidence and circumstances favorable to the findings and disregard all evidence and circumstances to the contrary. Banks v. Collins, supra; Stanley v. Stanley, 294 S.W.2d 132 (Tex.Civ.App.1956, writ ref. n. r. e.). All of the evidence concerning the sale came from the appellees’ attorney who conducted the sale. The appellants knew nothing of the actual sale and could not supply any facts because they were not present. The attorney for the appellees testified that “ * * * a private sale was held * * This testimony taken out of context and standing alone, would be sufficient to support the trial court’s findings. However, the witness qualified such direct evidence of an actual sale, by limiting and qualifying his testimony in using such language as: I am not positive; I have the vaguest recollection; I could be mistaken; the old man said “what sale”; no bids asked, no bids made; I don’t know; vaguest recollection of crying out; Mrs. Blair does not recall it; ■ I can’t look you in the eye and tell you I did it; honestly, I don’t know; nothing in there that says so; and no notice to any interested bidder. We hold that such uncertain, indefinite and qualified testimony, when considered as a whole, on an issue so vital to appellants’ rights, given as it was by the attorney who was acting for appellees at the time in question, was insufficient for the trial court to base a finding that there was a valid sale of such personal property. Such finding is not supported by any evidence of probative force and is therefore manifestly erroneous.

The evidence is clear that the appellees took possession of the mortgaged property, but the evidence is insufficient that an actual sale took place. In order to pass title to the mortgaged property, a sale must actually take place. The taking alone is not sufficient to amount to a non-judicial foreclosure. The mortgagee exercising his right to sell must have due regard for the interest of the mortgagor in the property. He is not entitled to act as the owner of the property but assumes a fiduciary relationship not unlike that of a trustee for the benefit of the mortgagor. Lyon v. Wood, 363 S.W.2d 179 (Tex.Civ.App., 1962, n. w. h.). The reason for the rule being that the exercise of such power is a harsh remedy and that it can only be exercised by strictly complying with the terms and conditions imposed upon the power of sales by the maker of the mortgage instrument. Sullivan v. Hardin, 102 S.W.2d 1110 (Tex.Civ. App., 1937); Albright v. Smith, 288 S.W. 178 (Tex.Comm.App). Allbright v. Smith, 5 S.W.2d 970 (Tex.Comm.App.).

The appellees sought a deficiency judgment. Deficiency is that part of the secured obligation which remains after crediting it with the net proceeds accruing from a valid sale of the security by the creditor. In seeking a deficiency judgment the mortgagee must first prove the validity of the foreclosure and sale and that such sale was fairly conducted. Casa Monte Company v. Ward, 342 S.W.2d 812 (Tex.Civ.App., 1961, n. w. h.). The trial court found that the private sale of the personal property conducted on or about the 6th day of December, 1960, was fair, just and equitable. The appellants attack the findings of the trial court and contend that there was no evidence or insufficient evidence that the purported sale was fairly-conducted. We sustain appellants’ contention.

Sales by mortgagees under power given to them are more liable to abuse than judicial sales. They are more zealously watched by our courts of equity and upon slight proof of unfair conduct or violation of the powers given by the instrument, they will be set aside. Eichman v. Highland Park State Bank, 345 S.W.2d 352 (Tex.Civ.App., 1961, wr. ref.); Campbell v. Eastern Seed & Grain Co., 109 S.W.2d 997 (Tex.Civ.App., 1937, n. w. h.) ; Associates Investment Company v. Lenz, 288 S.W.2d 857 (Tex.Civ.App., 1956, n. w. h.); Sullivan v. Hardin, supra. The reviewing courts will test the evidence as to the fairness and justness of a non-judicial sale and apply the law as it pertains to the facts in each individual case Appellants complain of the inadequacy of the price obtained at the sale and that no bidders were present. These facts, standing alone, are not sufficient to set aside the sale. Davenport v. San Antonio Machine & Supply Co., 59 S.W.2d 207 (Tex.Civ.App., 1933, wr. ref.).

Appellants further contend that the sale is void because the appellees did not have the express authority in the mortgage to purchase at the sale. We find no Texas cases on this point and none were cited. It is undisputed that the appellees, through their attorney, sold the property in question to themselves. A mortgagee is a trustee, but in a qualified sense. He does not hold for the benefit of others, but for himself. He is a cestui que trust, as well as trustee. He has an interest in the property. It is pledged expressly to secure his claim; and where he is deprived of the power to purchase, he might suffer great loss by its sale to others at a low price. He has an interest that the bid should amount to his encumbrance, and that the property be not sacrificed, to the injury as well of the mortgagor as the defeat of his own claim; as this may be the only fund for the discharge of his debt. The mortgagee should be entitled to enter into competition at the sale. Howard v. Davis, 6 Tex. 174 (1851). If he sells the property to himself at private sale, he does not divest himself of his fiduciary character. However, where the mortgagee seeks a deficiency judgment and the mortgagee himself purchases without express authority in the mortgage instrument, the sale is voidable in equity for good grounds, though not absolutely void. Casa Monte Company v. Ward, supra; Southern Trust & Mortgage Co. v. Daniel, 143 Tex. 321, 184 S.W.2d 465 (1944). It is his duty to sell at the highest possible price; if he purchases, his interest would be to purchase at the lowest possible price; as seller and purchaser he is charged with the possibility of an adverse interest. In such case the court will examine such sale from its four corners and require the mortgagee to prove by clear and convincing evidence that such sale was fairly and honestly conducted in all respects.

The evidence was further undisputed, in fact the trial court specifically found, that the sale was conducted without soliciting or inviting bids of any kind or character of any person whomsoever. There was no convincing evidence to show that the sale was conducted where the property was located. The legal duties imposed upon the mortgagee require him to use all fair and reasonable diligence in advising prospective purchasers of a pending foreclosure sale as to its time and place, giving such prospective purchasers an opportunity to inspect the property. The mortgagee should use all reasonable means in obtaining the best prices for the property to be sold upon foreclosure, entertaining a bid of his own as a matter of competition and to prevent loss to himself.

It is inconceivable to us that a mortgagee without giving notice of the intended sale to any prospective bidder could conduct a sale on his own behalf, selling to himself, without asking for bids or receiving bids, without having the property exhibited, or holding the sale at a location other than where the property was located, possibly in the confines of the mortgagees’ attorney’s office in another city and county, could, under these circumstances, conduct a fair and impartial sale.

We therefore hold that there was no evidence of a sale fairly conducted and such sale must be set aside.

It is our opinion, and we so hold, that the action of the mortgagees, by taking and exercising dominion and control over the property without conducting a proper sale, amounted to an illegal conversion of the property. It is only through a valid sale .and foreclosure that the lien for the security is merged into the title to the property or its proceeds. 12 Tex.Jur.2d 107, Chattel Mortgages, § 80.

Appellants contend that they should have credit for the value of the property at the time that the appellees converted the property to their own use and that we should render judgment as to the value of such property. We hold that there was insufficient evidence of the actual fair market value of the subject property as of the date of its conversion. There being no valid sale and an absence of sufficient evidence as to the value of the property, the trial court and this court had no data from which they could enter a deficiency judgment. Sullivan v. Hardin, supra. A prior valid sale, fairly conducted, or a determination that the property had been converted, and then a finding of the reasonable market value of such property as of the date of its conversion are the conditions precedent to the entry of a proper deficiency judgment. In view of our holding and because the record shows that the property is no longer in the hands of the appellees on a retrial, the value of the property shall be determined, and the appellants given credit for the reasonable market value of the property as of December 6, 1960, being the time of the appropriation by the appellees. Maupin v. Chaney, 139 Tex. 426, 163 S.W.2d 380. The trial court in arriving at the reasonable market value of the subject personal property as of December 6, 1960, will consider that there was a first lien chattel mortgage existing against such personal property and at the same time it will likewise consider that the appellees, prior to the conversion of the subject personal property, purchased the real property subject to the same outstanding indebtedness covered by the first lien chattel mortgage on the subject property. If the value of the said property, considered as it was on said date, is found to be less than the debt, then the appellants should be given credit for such value, and appellees a judgment for the remaining deficiency, plus interest and attorney fees.

The costs of this appeal are assessed against the appellees.

The judgment of the trial court is reversed and the cause is remanded for a new trial.

ON MOTION FOR REHEARING

In reversing and remanding this cause it is not the intention of this Court to hold that appellee, on another trial, may not raise the issue of a valid sale of the personal property, provided that sufficient competent evidence is available to raise such issue. This cause is remanded for a new trial on all issues.

Motion for rehearing is overruled.


author: WILSON, Justice.

text:
    REVA CORPORATION, Appellant, v. GOLDEN LIGHT COFFEE & EQUIPMENT COMPANY, Appellee.
    No. 4223.
    Court of Civil Appeals of Texas. Waco.
    May 7, 1964.
    Rehearing Denied May 28, 1964.
    John M. Hamilton, Dallas, for appellant.
    Gibson, Ochsner, Harlan, Kinney & Morris, James H. Doores, Amarillo, for appel-lee.
   WILSON, Justice.

We are required here to decide two cases. Appellant brings to us appeals from judgments in two separate suits under one record. These cases were not consolidated in the trial court, but were tried simultaneously by agreement. Separate judgments were rendered, and separate appeals perfected in each case. We have consolidated the appeals, but will consider them separately. We affirm the judgment in cause No. 38269, and reverse that in cause No. 38270. One-half the costs áre taxed against each party.

No. 38269

In this cause Golden Light successfully sued Reva on a sworn account for the purchase price of equipment. Reva’s defense, as material here, was to the general effect that Golden Light did not have good title to the equipment alleged to have been bought by Reva, and hence there was a failure of consideration. This defense is based on the contention that the equipment had become part of the realty (a building owned by Reva) before the purported sale of the equipment to it by Golden Light. In essence Reva says it already owned the property it is alleged to have bought from Golden Light, and that it was encumbered by prior liens held by other parties.

Reva asks us to adopt this deduction by a course of reasoning under the following unchallenged fact findings by the trial court in a non-jury trial: In 1959 Reva executed a deed of trust to secure interim financing for construction of the Vaughn building, owned by it. In 1960 Reva leased space in the building for use by a club, retaining an express lien on all the tenant’s property placed in the building. The club purchased equipment from Golden Light, some of which was delivered June 23, 1961. June 9, 1961 Reva executed and delivered to Golden Light a landlord’s waiver and consent agreement, relinquishing all claims and rights of levy for rents to the equipment bought by the club to be installed in the building. The agreement recited the “chattels shall not become a part of the freehold”. June 30, 1961 Reva executed a recorded deed of trust on the building for the benefit of an investment corporation, assigning to it also Reva’s interest in the club lease. These were in turn assigned to an insurance company.

July 10, 1961 Golden Light delivered to the club the rest of the equipment purchased. October 23, 1961 the club executed a recorded chattel mortgage on all the equipment Golden Light delivered. The club failed to pay Golden Light for the equipment and was adjudged a bankrupt. The following September the referee ordered the equipment abandoned to Golden Light. Reva, through its president, thereafter agreed to buy, and Golden Light agreed to sell the equipment for the amount of the debt alleged.

The court determined that it was the intention of the tenant club, Golden Light and Reva that the equipment remain personalty and not become fixtures; that no material injury would be done to the building by removal of the equipment therefrom; that none of it became affixed to the realty so as to become fixtures, but remained personalty.

Reva’s points assert the court erred in determining that the property, as a matter of law, remained personalty and did not become fixtures; and erred in holding there was a valid sale, because title to the property had vested in Reva, subject to the leasehold estate. We have concluded it is not necessary to pass on these points because the judgment is sustained by another determination of the trial court, not attacked by any point.

Golden Light pleaded the landlord’s waiver and consent agreement, which the court found was executed by Reva through its president on June 9, 1961. The finding is not factually assailed. Golden Light also pleaded that by execution of the agreement inducing delivery of the property to Reva’s tenant, Reva was estopped to assert the equipment was not personalty, or had become fixtures attached to the realty. There is an assertion in appellant’s brief that this agreement was obtained by fraud, but we find no pleading, evidence, finding or requested finding on which such a claim is founded, and the contention is not briefed. The trial court concluded appellant was so estopped. The conclusion is not complained of by any point. It is justified, and supports the judgment.

Appellant contends also the judgment in Cause No. 38269 should be reversed because the court overruled its plea in abatement for non-joinder of the investment corporation and the insurance company as “one or more lienholders” said to be indispensable parties. Golden Light’s action against Reva was for debt. Reva said it did not owe the debt because the seller sold equipment it did not own. To establish this defense and defeat recovery Reva said that by its own conduct it had created prior liens on the equipment in favor of third parties. The judgment determining whether Reva is liable to Golden Light for debt does not affect the alleged lienholders or their interests. The subject matter of this suit is debt; its object is to obtain judgment for that debt. The lienholders have no interest in the “object and subject matter of the suit” even though “the decision might be persuasive on some question of law” affecting their title. Royal Petroleum Corp. v. Dennis, 160 Tex. 392, 332 S.W.2d 313, 314, 316. They were not indispensable parties. The judgment in Cause No. 38269 is affirmed.

No. 38270

Golden Light sued Reva in this cause for title to and possession of equipment, alleging Reva wrongfully withheld possession. Reva presented a plea in abatement alleging the equipment had been previously sold to its lessee and had become attached to the realty; that Reva had executed for the benefit of a named investment company a deed of trust securing its loan on the building, including the leasehold estate covering the portion of the building in which the equipment was delivered and installed; that the mortgagee was a bona fide creditor for value without notice, and the included valid first lien on the equipment had been assigned for value to a named insurance company. The plea in abatement alleged the investment corporation and the insurance company were the present owners and holders of the liens and title to the equipment. The plea averred these non-joined parties were within the jurisdiction of the court and were necessary and indispensable parties, and prayed the action be abated until they were joined. The plea in abatement was overruled, and judgment was rendered declaring title to the equipment was in Reva. Appellant complains of the order overruling the plea.

“Necessary parties” as that term is here used are those who have or claim a direct interest in the object and subject matter of the suit and whose interest will be necessarily affected by any judgment rendered therein. Royal Petroleum Corp. v. Dennis, 160 Tex. 392, 332 S.W.2d 313, 314; Veal v. Thomason, 138 Tex. 341, 159 S.W.2d 472, 477. In McDonald v. Simons, Tex.Com.App., 280 S.W. 571, 572, it was said, “It is true that one who is not a party to a proceeding is not technically bound by the judgment rendered, even though it directly concerns his interests. But it is for this very reason- — -that is, that the court cannot, once for all, finally end the controversy even as between the parties — that the rule prevails that all parties interested in the subject-matter, and whose rights are involved, must be brought before the court.”

The effect of the judgment sought was to determine that Reva had no title to encumber or assign. To say that the assignees or mortgagees are not bound by the judgment is no answer. The trial court did in fact conclude that Reva had no interest it could transfer, and that the non-joined parties “obtained no lien on, or interest in, the property in question.” It was determined that they “had notice of the fact that business tenants would be occupying the building and would be purchasing equipment and giving chattel mortgages and were thus on constructive notice that a chattel mortgage existed on the property in question.” It is observed that in the other suit, cause No. 38269, the court concluded that since the judgment in that cause did not divest Reva of title to or possession of the equipment, “even if there were lien interests in the realty which extended to said property, that security interest would not be affected” by the judgment. In this cause No. 38270, obviously, the converse of that reasoning should apply.

Appellee answers that it proved the non-joined parties had no rights, because it won its case against Reva, thereby establishing the non-joined assignee or mortgagee could not have any title to or interest in the property. The point is that this was determined in their absence. The subject matter of the suit was title and possession of the property. The object of the suit was to recover that title and possession. Their interest therein was necessarily affected by the judgment. In our opinion the plea in abatement should have been sustained. We may not properly pass on other points affecting this cause. Judgment in cause No. 38270 is reversed and the cause is remanded.


author: BRADY, Commissioner. PER CURIAM:

text:
    Billy Joe LUTTRELL and Patsy Joan Luttrell, Plaintiffs-Respondents, v. STATE HIGHWAY COMMISSION of Missouri, Defendant-Appellant.
    No. 31630.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 22, 1964.
    Robert L. Hyder, Wilkie Cunnyngham, Jefferson City, for defendant-appellant.
    Vogel & Frye, Raymond H. Vogel, Cape Girardeau, for plaintiffs-respondents.
   BRADY, Commissioner.

After completion of a jury-waived trial, the trial court entered judgment ejecting the State Highway Commission of Missouri, hereinafter referred to as the defendant, from certain land upon which it had constructed and was maintaining supplemental State Highway “H”. The trial court also awarded $100.00 damages to the Luttrells, hereinafter referred to as the plaintiffs. Defendant appeals.

One William Criddle had originally owned the land upon which the highway was constructed. At his death in 1939 his widow, Tena Criddle, and two sons, Oda and Elam Criddle, were then living. Elam Criddle died in 1944, and Mrs. Luttrell, his only child, inherited his one-half interest in the farm. Tena Criddle, Mrs. Luttrell’s grandmother, was living on the farm just prior to the construction of the highway, and the defendant secured a conveyance of the right of way from her on January 9, 1956. During the construction of the road Tena continued to live on the farm except for short visits to her son Oda Criddle who lived just to the north and across the road from Tena Criddle’s house. In May of 1960 after completion of the highway but prior to the institution of this action, Oda Criddle and his wife conveyed their one-half interest in this farm to the plaintiffs.

The plaintiffs were living in Cape Girar-deau, Missouri, while this highway was being constructed and knew of its construction. The highway is of a permanent type.

The plaintiffs filed their petition with the trial court on July 18, 1961. That document alleged that plaintiffs were the legal owners of certain land which was described by metes and bounds that on May 9, 1960 “ * * * defendant entered into possession of and unlawfully withholds * * * ” a portion of that land, describing Highway “H”, from the plaintiffs; that “The monthly rents and profits of the lands so withheld by defendant are the sum of One Hundred Dollars ($100.00)”; and that “As a direct result of the defendant’s actions aforesaid plaintiffs have been damaged in the sum of Fifteen Hundred Dollars ($1500.00).” The prayer was for judgment for possession, for $1,500.00, and for $100.00 per month from the entry of judgment until possession was restored to plaintiffs. During the trial the plaintiffs waived all claim for monthly rents and profits.

The defendant’s answer alleged that it could not be held liable for any tort; that Highway “H” was a permanent state highway; that the plaintiffs failed to object while the highway was being constructed and the large sums of money required were being expended although plaintiffs knew of the construction of the highway; and that since the plaintiffs did not file their action within five years after defendant took possession their action is barred by the five-year statute of limitations. Paragraph 7 of the answer stated the allegation that by reason of the construction of the highway the benefits to the remaining land have so increased its value that the market value of the entire tract was greater after the construction than before it.

The trial court found that “ * * * the Plaintiffs were entitled to the possession * * * ” of the right of way in defendant’s possession. It also found that “ * * * Defendant has committed injury ánd waste on said land and thereby Plaintiffs have been damaged in the sum of One Hundred Dollars ($100.00) * * The court ordered “ * * * that Plaintiffs have and recover of the Defendant, the possession * * *« 0f the land and that “ * * * Plaintiffs have of the Defendant the sum of One Hundred Dollars ($100.00) *

The defendant’s principal allegation of error is that the plaintiffs have failed to state a claim upon which relief can be granted. The first reason given by the defendant to support that contention is that it cannot be held liable in tort for any injury or waste committed upon the land. Examination of the transcript discloses that plaintiffs held fast to their theory they were entitled to damages throughout the trial. This attitude was illustrated by their objection to any evidence as to what effect the building of the highway had on the market value of the farm. In this connection plaintiffs’ counsel stated that “ * * * Evidence of the market value of this land or the effect of building a highway on the land has nothing to do with this lawsuit.” At another point plaintiffs’ counsel stated to the court in his opinion it did not make “ * * * any difference whether the market value of the farm has been improved or not.” The trial court adopted this theory and stated that it was admitting the evidence with regard to improvements to the land resulting from the construction of the highway as bearing on the request for damages in connection with the ejectment. In this regard the trial court stated: “Mr. Vogel, you have alleged in your petition that when the State Highway Department took the land it is damaging to your client. You have alleged that it is damaging to a certain amount. I believe that the value of the land before and after would definitely tend to show whether or not your clients are damaged insofar as the highway department’s use of this land is concerned.”

The plaintiffs do not direct any portion of their brief to this issue thereby tacitly conceding the error of the trial court’s action. They could hardly do otherwise, for it is settled law in this state that the defendant is not liable in an action for tort. Bush v. State Highway Commission of Missouri, 329 Mo. 843, 46 S.W.2d 854; Broyles v. State Highway Commission of Missouri, Mo.App., 48 S.W.2d 78. In State ex rel. State Highway Commission v. Riggs, 226 Mo.App. 1053, 47 S.W.2d 178, the same rule is stated in a case similar to the instant case in that both involved alleged injuries to land. See also Smith v. Aldridge Construction Company, Mo.App., 356 S.W.2d 532. We hold the defendant is not liable in tort and the trial court’s award of $100.00 damages was erroneous.

The defendant also contends that plaintiffs failed to state a claim upon which relief could be granted for the reason that ejectment will not lie in the instant case. To support their contention that ej ectment will lie plaintiffs cite the following cases: Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371; McCarty v. Clark County, 101 Mo. 179, 14 S.W. 51; Armstrong v. City of St. Louis, 3 Mo.App. 100, 69 Mo. 309; Tebbs v. Platte County, 325 Mo. 304, 28 S.W.2d 656; Hammerslough v. Kansas City, 57 Mo. 219; Bradley v. Missouri Pac. Ry. Co., 91 Mo. 493, 4 S.W. 427; Beetschen v. Shell Pipe Line Corp., Mo.App., 248 S.W.2d 66, transferred 363 Mo. 751, 253 S.W.2d 785. The questions presented and decided in the Barker case were (1) whether the statute providing for the old county court condemnation procedure was constitutional, and (2) whether the effect of the Barker decision should be retroactive or prospective. The question of ejectment is casually disposed of at the beginning of the opinion in the following language: “ * * * Plaintiff’s case is based solely on the theory that the proceedings resulting in taking his property without just compensation are utterly void. If so, ejectment is a proper remedy. Tebbs et al. v. Platte County, 325 Mo. 304, 28 S.W.(2d) 656.”

The Tebbs case which was cited by the court in Barker as sole authority for the statement that ejectment is the proper remedy, was decided in 1930. It was an action against Platte County to recover the value of the land taken for a road and damages from the remainder of the tract resulting from such taking. The court held that in opening a county road across plaintiff’s land after a defective condemnation Platte County was the agent of the State of Missouri, and therefore the action would not lie. The only reference to ejectment that appears in the case is the voluntary statement recited after the decision was reached that * * * If the proceeding for opening the road was void, as appellants contend, their remedy is in ejectment. McCarty v. Clark County, supra.”

The McCarty case referred to did allow ejectment. McCarty v. Clark County, supra. The court stated that ejectment did lie against a county the same as against the city to recover land which has wrongfully been taken and converted into a public road. At page 182 of the report of this case in 101 Mo., at page 51 of 14 S.W., the court said: “It was long ago held by this court that ejectment would lie against a city to recover land which the city had wrongfully taken and converted into a public street. Armstrong v. [The] City of St. Louis, 69 Mo. 309. * * * ”

In Armstrong v. The City of St. Louis, supra, the sole authority cited in the McCarty case to support the ruling that ejectment would lie, the court approved ejectment, damages of $15,000, and monthly rents and profits of $83.93. The court stated that the principal question there presented was whether an action of ejectment will lie against the city by the owner of land wrongfully taken by the city and converted into and used as a public street. The court recognized that there were authorities holding that the action could not be maintained and examined a number of cases from other states in which ejectment was denied on the ground that the city or other defendant was only claiming an easement for public use and that the plaintiff still had the fee simple title. The court rejected this theory pointing out that the action of ejectment originally was an action of trespass and stating that it was not necessary that the defendant should own or claim a freehold estate in the land involved but would be sufficient if he had ousted the owner from possession. The case actually turned upon this point, the court stating: “ * * * The right to maintain an ejectment against a party in possession does not depend upon the right he claims in the premises, but upon the wrong lie has done the claimant, if the true owner. If he has turned him out of possession and holds the premises against him, it does not matter what interest he claims.”

The Hammerslough case cited by the plaintiffs and referred to by the court in Armstrong was a suit to enjoin the city in which the court stated: “The remedy of the plaintiffs, if they claim the sale to the city as void, was an action of ejectment, and if they admitted the sale, they could sue for the purchase money. We see no grounds for an injunction. * * * ”

It is apparent that of the cases cited by the plaintiffs only the McCarty and Armstrong cases constitute actual authority for the contention that ejectment will lie in situations such as this. In the other cases the point was not squarely presented nor ruled, and the court’s remarks as to the remedy of ejectment constitute dicta. In addition the court in the Armstrong opinion cites three early cases, Walker v. Chicago, R. I. & P. R. Co., 57 Mo. 275; Evans v. Missouri, I. & N. Ry. Co., 64 Mo. 453; and Walther v. Warner, 25 Mo. 277, where the remedy of ejectment was held available. The Walther case is important, for it contains a clue as to the reasoning upon which the line of cases supporting the plaintiffs’ contention may rest. At 25 Mo., 1. c. 288 the court points out that a distinction had existed between taking of private property by a government which was assumed to have unlimited and continuing ability to pay and the taking of private property by private corporations which were often in a continuing state of bankruptcy.

The cases cited by plaintiffs and discussed above have not been overruled. However, a line of cases holding that ej ectment will not lie also exists. Provolt v. Chicago, R. I. & P. R. Co., 57 Mo. 256 (1874) is such a case. That case is an example of those that deny the remedy of ejectment and base the denial upon a theory of waiver or acquiescence. In Provolt v. Chicago, R. I. & P. R. Co., supra, at 1. c. 261-262 of 57 Mo. the court states: “There is no pretense here that the defendant had acquired a valid legal title; but the point stressed for consideration is, whether the circumstances connected with it— taking possession of the property and constructing its tracks and operating its road —will preclude a remedy by the action of ejectment. * * * It is very clear from the record, that the plaintiff was cognizant of all the facts and knew every step taken by the company in regard to the location, construction and operation of the road over his property. He made no objection whatever to anything that was done in that respect, only objecting to the report of commissioners on account of the inadequacy of the assessment.” And at 1. c. 263 of 57 Mo. the court quotes with approval from McAuley v. Western Vermont Railw., 33 Vt. 311, as follows: “* * * In these great public works the shortest period of clear acquiescence, so as to fairly lead the company to infer that the party intends to waive his claim for present payment, will be held to conclude the right to assert the claim in any such form as to the company in the progress of their works, and especially to stop the running of the road after it has been put in operation, whereby the public acquire an important interest in its continuance. The party does not, of course, lose his claim or the right to enforce it, in all proper modes. He may possibly have some rights analogous to the vendor’s lien in England and here, until the legislature cut it off. But it is certain, according to the English decisions, that he cannot stop the works, and especially the trains upon the road, if he has in any sense, for the shortest period, clearly given the company, either by his express consent, or by his silence, to understand that he did not intend to object to their proceeding with their construction and operation. * * * ”

Another statement of this theory for denying ejectment is to be found in a case cited by plaintiffs. In Bradley v. Missouri Pac. Ry. Co., supra, the court held (91 Mo. 493, 1. c. 499, 4 S.W. 427, 1. c. 428): “Where the owner of land, it has been held, does not insist upon prepayment of the damages or other considerations for the right of way, but by his acquiescence or license induces or permits the company to take possession and construct the road, he cannot maintain ejectment thereafter for the land, because of a failure to pay the damages or other considerations. * * * ”

When this problem has come before our Supreme Court in more recent times, the result has been the same as that reached in Provolt, but the grounds upon which that decision rested have been restated in terms of “public policy.” An example is Second Street Improvement Co. v. Kansas City Southern R. Co., 255 Mo. 519, 164 S.W. 515. There plaintiff owned lots 112, 113, and 114 in Kansas City. The railroad company owned the lots east of plaintiff’s land and there was a sixteen-foot alley separating the plaintiff’s land from the lots owned by the railroad company. The City of Kansas City vacated the alley, and the railway company condemned plaintiff’s lots but did not specifically mention any part of the vacated alley. The railway company took possession of the alley and constructed and operated a portion of its depot and tracks thereon. The court held that “The case law does not deprive a plaintiff of the right to recover for his property, but for public reasons precludes him from the remedy of ejectment. * * * ” The court placed its decision upon the ground of public policy stating: “Under the facts shown the trial court held that plaintiff should not have sued in ejectment, but should have brought his suit for the value of the property, so that the affirmance of the judgment here does not preclude the plaintiff from getting actual justice, if such it desires, in a proper suit. The affirmance of the judgment does preclude the plaintiff from cutting out an eight-foot segment from defendant’s depot and railroad tracks. We thing (sic) the court was right in holding that the plaintiff should have sued for the appropriation of the property, rather than for the property itself. Cases of this kind stand upon a little different footing from cases where pure individual rights are involved. The public service is a proper matter for consideration in a way. Public service by a common carrier might be brought to naught, if an individual could eject it from an eight-foot strip across its right of way, at a point along its line midway between the two ends. Of course the supposed case is not exactly this case, but the legal principle which governs the one is the same which must be applied to the other. The courts have been very loth to allow ejectment in any case where the public service would be crippled by the act of ejectment. They, do not put it upon the ground that the public service would be hampered, but they have been diligent in finding doctrines upon which the ends of the public good would be met, without injuring the substantial rights of the individual property owner.” (Emphasis supplied.)

Rivard v. Missouri Pac. R. Co., 257 Mo. 135, 165 S.W. 763, an En Banc decision in 1914, involved an action by remainder-men to recover the value of land appropriated by the defendant and used as a part.of its track and right of way. An indication of the complexity of the issue is to be found in how the court divided in the decision of the case which was as follows: “GRAVES and WALKER, JJ, concur; GRAVES, J, in opinion filed. WOODSON and WALKER, JJ, concur. WOODSON, J, concurs in paragraphs II and III and in result. BROWN and FARIS, JJ, and LAMM, C. J, concur in result; LAMM, C. J, in opinion filed, in which WOOD-SON, GRAVES, and WALKER, JJ, concur.” While Lamm, J. concurred in the result reached, three other justices (thus a majority of the court) joined him in placing the decision on the grounds that ejectment would not lie. In that opinion Judge Lamm said: “My reasons for concurring in the result reached by my Brother are these: It is the settled doctrine of this court that a party whose land has been appropriated by a railzvay company for quasi public purposes, as was this land, is not entitled to recover the possession of the land by ejectment or by any possessory action. His remedy is for the value of the land wrongfully appropriated. The solidest grounds exist for that proposition which those curious in that behalf may verify by consulting the cases (Second St. Imp. Co. v. Railroad, [255 Mo. 519] 164 S.W. 515, just handed down, and not yet officially reported, and cases cited), and which grounds these plaintiffs recognized in bringing their suit in its present form for value, and not for possession * * The plaintiff Patsy Luttrell testified that she knew the road was being built, and the evidence also is that nothing was done or said to stop the construction no-r was any complaint made until well after the completion of the road. Under these circumstances the remedy of ejectment is not available to the plaintiffs. Second Street Improvement Co. v. Kansas City Southern R. Co., supra; Rivard v. Missouri Pac. R. Co., supra; Provolt v. Chicago, R. I. & P. R. Co., supra.

The plaintiffs also cite and rely upon Beetschen v. Shell Pipe Line Corp., supra, to support their contention that ejectment will lie. A careful reading of that case discloses that it is not authority for the plaintiffs’ position. As this court pointed out in its opinion in Beetschen, the remedy sought and the measure of damages differ in cases which involve fences and other improvements not constituting “ * * * a permanent improvement, resulting in a permanent injury to the inheritance so that the whole damage could be estimated in one action * * *” (248 S.W.2d, 1. c. 71) and those cases where there is a permanent structure erected on the land taken.' Thus, in the consideration of Beetschen upon transfer the Supreme Court emphasized it was the temporary nature of the improvement, a fence, that resulted in the decision that the * * * plaintiffs were not compelled to recover all damages in a single action.” (253 S.W.2d, 1. c. 788) Citing the Restatement of Torts, Sec. 164, as the general rule, the court states: (253 S.W.2d, 1. c. 788) “As the appellant urges, there is an exception to this rule of liability and measure of recovery where the appropriation is permanent and ‘where the actor is a public utility which could by condemnation proceedings have acquired a privilege permanently to maintain on the land the structure, chattel or other thing, unless it appears that the actor does not intend so to maintain it.’ 1 Restatement, Torts, p. 373; Prosser, Torts, note p. 91. But the exception does not mean that every trespass by a corporation invested with the power of eminent domain is permanent or compels a single action for all damages sustained by reason of the unlawful appropriation or invasion. Doyle v. [Kansas City] & S. Ry. Co., supra [113 Mo. 280, 20 S.W. 970]. In all the instances in which the rule has been applied the landowner in fact sought and prosecuted to a conclusion an action to recover all damages sustained. In several of those actions the trespassing corporation appealed and contended that the taking or injury was not permanent and that recovery could only be had for temporary damages. Blankenship v. Kansas Explorations, 325 Mo. 998, 30 S.W.2d 471. And in all those instances the appropriation was in fact necessary for the very public purpose for which the easement could have been acquired in a condemnation proceeding. This is particularly true of the cases in which a railroad corporation, without authority, appropriates a right of way and constructs a railroad across land. The appropriation is permanent, it is for a public railroad purpose for which the right of way could have been condemned, and the measure of the landowner’s recovery and damages is the same as in condemnation. (Citing cases.) * * * ” (Emphasis supplied.) Read in its correct light Beetschen is not authority for the plaintiffs at all. It is a case involving an improvement which was not permanent as contrasted to the permanent nature of the improvement in the instant case. Not only is the case easily distinguishable on this ground but actually supports the defendant’s contention as this appropriation is permanent and is for a public purpose for which the right of way could have been condemned.

The plaintiffs contend that reversal will be manifestly unfair to them, as it would require them to bring their action for “reverse condemnation” in Cole County, Missouri, some distance away from the location of their farm. The question of that venue is not before us, and we do not pass upon it other than to point out that the circumstances of which plaintiffs complain resulted from their failure to join issue by pleading in answer to paragraph 7 of defendant’s answer, by adducing proof on the issue there raised, and by their successful efforts to have defendant’s proof offered in support of the allegations of paragraph 7 confined to the issue of damages for ejectment.

The plaintiffs failed to state a claim upon which relief could be granted. The judgment should be reversed. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed.

RUDDY, P. J., and WOLFE and ANDERSON, JT., concur.


author:
DOERNER, Commissioner.
      PER CURIAM:

text:
    Edward PHILLIPS, Plaintiff-Appellant, v. James CARROLL, d/b/a Schilli Tire Service, Defendant-Respondent.
    No. 31560.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.

      R. C. Reis, St. Louis, for plaintiff-appellant.
    Rene J. Lusser, Rene E. Lusser, St. Louis, for defendant-respondent.
   DOERNER, Commissioner.

Plaintiff appeals from an order and judgment dismissing his petition with prejudice. Since the action was one to recover for personal injuries, and the prayer was for $10,000, this court has appellate jurisdiction. Section 477.040 RSMo 1959, V.A. M.S., as Amended, Laws 1959, S.B. No. 7, Sec. 1; Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763.

Plaintiff alleged in his petition that defendant was the sole owner and operator of Schilli Tire Service in Ste. Genevieve; that on July 11, 1949 plaintiff delivered truck tires to defendant’s place of business for the purpose of having defendant repair said tires, during which period of repair said tires were under the exclusive control, charge and management of defendant; that defendant later delivered said tires to plaintiff after the defendant had purported to have made the necessary repairs; that while plaintiff was handling one of said tires it exploded, causing part of the tire and the rim to violently strike and injure plaintiff; that the plaintiff has no knowledge of the cause or causes of the violent and unusual occurrence; that the unusual occurrence and plaintiff’s injuries were caused by the failure on the part of defendant to exercise due care in carrying out their business of repairing and mounting said tire; and that the explosion of said tire was directly due to and caused by the negligence and carelessness of the defendant. The petition also contained averments as to plaintiff’s resulting injuries and special damages, which are here immaterial.

Defendant first filed a motion for a more definite statement, asking that the plaintiff be required (among other matters not here pertinent) “ * * * to state with particularity the particulars in which plaintiff claims the defendant, or his agents and servants, to have been negligent and careless.” Subsequently, by leave, defendant also filed a motion to dismiss plaintiff’s petition on the grounds that it failed to state a claim upon which the relief prayed for could be granted. A hearing was held on both' motions, and on March 5, 1963, the court entered an order and judgment dismissing plaintiff’s petition, with prejudice. Plaintiff’s appeal followed in due course.

Plaintiff contends that there were sufficient facts alleged in his petition to bring his cause of action under the doctrine of res ipsa loquitur. But as the defendant points out, that doctrine .only applies when: (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Gateway Chemical Co. v. Groves, Mo., 338 S.W.2d 83; Clark v. Linwood Hotel, Inc., 365 Mo. 982, 291 S.W.2d 102; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641. In Missouri, “It is generally held that the doctrine is inapplicable unless the control or right (and duty) of control of the instrumentality causing the injury is in defendant at the time of the injury, * * Maybach v. Falstaff Brewing Corp., 359 Mo. 446, 222 S.W.2d 87, 90. See also Littlefield v. Laughlin, Mo., 327 S.W.2d 863; Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 238 S.W.2d 674. In the instant case plaintiff’ expressly negated defendant’s control or right to control the tire by alleging that defendant had returned it to him, and that he was handling it at the time it exploded. Hence the facts pleaded were insufficient to state a cause of action under the res ipsa loquitur doctrine. Maybach v. Falstaff Brewing Corp., supra.

It does not necessarily follow, however, that the petition therefor wholly failed to state a claim upon which relief can be granted. While the petition in this case falls somewhat short of being a model, in considering such a pleading on motion to dismiss we construe it liberally and favorably to the plaintiff, and give him the benefit of all inferences fairly and reasonably deducible from the facts stated. Hall v. Smith, Mo., 355 S.W.2d 52; Jacobs v. Jacobs, Mo., 272 S.W.2d 185. If the averments invoke substantive principles of law the petition should be held sufficient on such a motion, even though there may be a lack of definiteness or certainty in allegation or an informality in the statement of an essential fact. Hiltner v. Kansas City, Mo., 293 S.W.2d 422; Myers v. City of Palmyra, Mo., 355 S.W.2d 17.

Taking a tolerant view of the petition, it may be said that plaintiff in effect alleged that the defendant purported to have repaired and mounted the tire while it was in his exclusive possession and control, whereby (it may be inferred) the facts and circumstances concerning the repairing and mounting are peculiarly within defendant’s knowledge; that subsequently while plaintiff was handling the tire it exploded; that the explosion was the direct and proximate result of the negligence and carelessness of the defendant in improperly repairing and mounting said tire; and that the explosion of the tire was an unusual occurrence which (it may be inferred) would not have happened if due care had been used by defendant in repairing and mounting it. As was said in Zichler v. St. Louis Public Service Co., 332 Mo. 902, 59 S.W.2d 654, 657:

* * * Where this doctrine (of res ipsa loquitur) does not apply, as well as where it does, a petition which specifies the act complained of with sufficient certainty to advise the defendant of the charge he is to meet, and then avers that such act was negligently done by the defendant, is a good pleading, and is not fatally defective as stating a mere conclusion instead of the facts constituting the negligence. A general charge of negligence, which is predicated on an act of the defendant causing the injury, is good as against the objection that no> cause of action is stated, and it is not necessary to state the specific facts showing the negligence in order to state a cause of action.”

See also Maybach v. Falstaff Brewing Corp., supra, and Welch v. Thompson, 357 Mo. 703, 210 S.W.2d 79. We are of the opinion that the foregoing allegations are sufficient to state a cause of action for general negligence, and that the petition was therefore not vulnerable to a motion to dismiss for failure to state a claim upon which relief can be granted. Maybach v. Falstaff Brewing Corp., supra; Welch v. Thompson, supra; Zichler v. St. Louis Public Service Co., supra.

The judgment of dismissal should be reversed and the cause remanded. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is reversed and the cause remanded.

RUDDY, P. J., and WOLFE and ANDERSON, JJ., concur.


text:
    Betty COATES, Plaintiff-Respondent, v. Wade J. DEWOSKIN, Louis Dewoskin, Sam Dewoskin and Stella Dewoskin, Defendants-Appellants.
    No. 31546.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 22, 1964.

      Richard M. Stout, Kent E. Karohl, St. Louis, for defendants-appellants.
    Donald P. Gallop, Fred Roth, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

The verdict and judgment in the trial court in this case was for the plaintiff in the amount of $2,900.00. Among the several allegations of reversible error briefed by the defendants are two that we hold determinative of this appeal. These are the contentions that plaintiff’s verdict-directing instruction was erroneously given and that the defendants’ motion for a directed verdict should have been sustained. We will therefore limit our statement of the factual situation to those facts bearing upon those contentions.

The plaintiff’s theory, as stated in her petition, was that there was a hole in the ceiling of the bedroom of this apartment of which the defendants knew at the time they let the apartment and which the defendants had caused to be covered by two or three layers of ceiling paper so that the plaintiff did not know of the existence; and that the existence of this hole made the ceiling unsafe and constituted a defective condition the existence of which defendants had a duty to warn plaintiff; and that she was injured by plaster falling from the ceiling.

The evidence in the light we are required to view it was that there was a hole in the ceiling plaster in one room in this apartment. This hole was there when the defendants let the premises to the plaintiff and had been covered over by some of defendants’ employees by placing several layers of wallpaper over the entire ceiling. The plaster was not replaced nor was any other material used to fill the hole which was about four feet wide and three and one-half feet long. A few months before the incident occurred, plaintiff noticed water marks on the ceiling in the area of this hole. These marks caused her to put a dishpan on the second floor of the apartment directly over this area. She admitted that on occasion (“several times”) the dishpan had overflowed, and the water went into the plaster ceiling of the room below. On the occasion when she was struck by the plaster she was sleeping face down in a bed which was placed in the northwest corner of the room. This was the location of the hole in the ceiling. The plaster struck her head, neck and back.

Those portions of plaintiff’s verdict-directing instruction pertinent to our inquiry hypothesized that at the time of the letting there existed upon said premises a portion of the northwest corner of the ceiling in the middle room on the first floor of her apartment which she used as her bedroom, which was defective, in that it contained an open hole approximately four feet wide which was concealed by being covered over by several sheets of wallpaper; that “ * * * such condition of said ceiling rendered it not reasonably safe for use * * * ” ; that plaintiff did not know of this condition of the ceiling and could not have discovered it by reasonable inspection; that “ * * * the defendants at the time of the letting of said premises to the plaintiff knew of said condition or in the exercise of ordinary care could have known of said condition * * * ” ; that defendants failed to inform the plaintiff of the condition; and that “ * * * said ceiling in the northwest corner of said room fell upon her body as a direct result of the said defective condition * *

Among the reasons advanced by the defendants to support their allegation of error with respect to the giving of In■struction No. 1 is the contention the instruction erroneously permitted a recovery .against defendants if the jury found that, in the exercise of ordinary care, the defendants could have known of the condition of the ceiling. In the case of Flournoy et al. v. Kuhn and Harry M. Fine Realty Company, Inc., Mo.App., 378 S.W.2d 264, this court held that the giving of an instruction hypothesizing the “ * * * defendants knew or in the exercise of ordinary care could have known of the dangerous and not reasonably safe condition * * * ” was prejudicially erroneous. In that opinion this court, by Wolfe, J., pointed out the difference in the degree of knowledge required in cases brought upon a theory of negligent repair or where the defect exists in an area under common control, on one hand, and those cases, such as Flournoy and the instant case, where the defect exists in an area under exclusive control of the tenant. In the former type of case, the hypothesization set out above is permissible. Kennedy v. Hartwig-Dischinger Realty Co., Mo.App., 201 S.W.2d 475; Taylor v. Hitt, Mo.App., 342 S.W.2d 489. In the latter type of case this court held in Flournoy the language allowing liability if the jury found the landlord could have known of the defect to constitute an “ * * * extension of the landlord’s duty, not warranted under the law * * The giving of Instruction No. 1 constitutes reversible error.

It follows that this judgment must be reversed. Whether that reversal should be outright or whether this cause should be remanded for a new trial rests upon defendants’ contention the trial court should have sustained its motion to dismiss offered at the close of all the evidence. In support of this contention the defendants contend that plaintiff failed to prove any “actionable negligence.”

The duty defendants owed the plaintiff is set forth in the Flournoy case as follows: “ * * * where the exclusive possession rests in the tenant, as it did in the instant case, the landlord is not generally liable for injuries caused by defects. He is liable where he is under an agreement to repair or voluntarily undertakes repairs, and the defects are caused by his negligence in so repairing. Grimmeissen v. Walgreen Drug Stores, Mo.App., 229 S.W.2d 593. He is also liable where, at the time of the execution of the lease, there are latent defects which are known to the lessor and are not known or discoverable by the tenant in the exercise of due care, and which involve an unreasonable risk of bodily harm to persons upon the premises. A lessor is under a duty to disclose such defects, and he is liable to the tenant or the tenant’s invitees for injuries resulting from such defects if he fails to disclose them to the tenant or conceals the presence of such defects. Grimmeissen v. Walgreen Drug Stores, supra; Roach v. Herz-Oakes Candy Co., 357 Mo. 1236, 212 S.W.2d 758; Bartlett v. Taylor, 351 Mo. 1060, 174 S.W.2d 844.”

The plaintiff’s verdict-directing instruction required the jury to find that the ceiling fell upon the plaintiff’s body “ * * * as a direct result of the said defective condition.” To say that an injury is a direct result of an alleged act of negligence is the same as stating that it is the “proximate result” of that act; “direct” being a synonym of “proximate.” Applebee v. Ross, Mo., 48 S.W.2d 900, 1. c. [4], p. 902, 82 A.L.R. 288. The proximate or direct cause of an event is that which, in a natural and continuous sequence, unbroken by any new cause, produces the event and without which the event would not have occurred. King v. Ellis, Mo., 359 S.W.2d 685.

In the instant case it is obvious that the maintenance of this hole in the ceiling, in and of itself alone, could not cause the plaintiff’s injury for holes do not fall and injure persons beneath them. The plaintiff’s verdict-directing instruction submits the maintenance of the hole so weakened the remaining ceiling that it constitutes a condition which involved an unreasonable risk of bodily harm to persons on the premises. However, the plaintiff failed to offer testimony by any expert or any witness that the existence of this hole in the ceiling weakened the rest of the ceiling. There is not one scintilla of evidence on that issue in this transcript. Recognizing the transcript is silent, the plaintiff contends in her brief: “The latent defect was created by the covering with paper of the hole and the weakened ceiling area without putting plaster and lathe therein, clearly creating a condition which the ordinarily prudent man, from experience, would foresee could result only in the ultimate falling of still another portion of the ceiling immediately adjacent to the hole which no longer was adequately supported. * * * It is submitted that it is a matter of common knowledge that a ceiling not completed with plaster or other similar material leaves the immediate areas around a hole in such a ceiling in a weakened condition to the point that material around the hole would, in time, fall because it is not supported.”

We cannot agree that this is a matter the jury would be entitled to find without basing that finding upon any evidence. It may be that a plastered ceiling is so constructed that the existence of a hole of the size and character of that in the evidence will inevitably and in and of the fact of its existence cause the ceiling surrounding the hole to fall. On the other hand the characteristics of plaster may be such that the existence of the hole does not, in and of itself, mean that the rest of the ceiling must inevitably fall without the intervention of any other cause. In any event, neither hypothesis is so certain nor is either such a matter of common knowledge that the jury could be allowed to find either without the assistance of some evidence upon the issue. This would seem to be particularly so in the instant case where the plaintiff’s own evidence as to water overflowing the pan she placed on the floor above the hole in the ceiling and that this water got into the plaster. In this connection it must be remembered that there is absolutely no pleading nor indication in the testimony that defendants caused the roof leak nor any intimation that they even knew that the roof leaked.

The submission in the plaintiff’s verdict-directing instruction that the condition of the ceiling with the hole in it “ * * * rendered it not reasonably safe for use * * * ” and that the ceiling fell upon the plaintiff “ * * * as a direct result of said defective condition * * * ” is unsupported by the evidence, and the trial court should have sustained the defendants’ motion for a directed verdict. The Commissioner so recommends.

PER CURIAM:

' The foregoing opinion of BRADY, C., is adopted as the opinion of this court.

The judgment is reversed.

RUDDY, P. J., and WOLFE and ANDERSON, JJ., concur.


author: DOERNER, Commissioner. PER CURIAM.

text:
    Arvell KEITHLEY, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
    No. 31533.
    St. Louis Court of Appeals. Missouri.
    May 19, 1964.

      Vernon Riehl, St. Louis, for defendant-appellant.
    Byron A. Roche, Morris B. Kessler, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This suit for personal injuries and property damages arose out of a collision between plaintiff’s automobile and defendant’s motorbus. The case was tried to a jury, resulting in a verdict and judgment for plaintiff for $2500, from which the defendant appealed.

Defendant has raised but two points in its brief. The first is that “The court erred in overruling defendant’s motion for a directed verdict at the close of the plaintiff’s case, and, again, at the close of all the evidence * * *” for the reason that plaintiff failed to make a submissible case. Of course, whatever error, if any, may have been committed in denying defendant’s motion at the close of plaintiff’s evidence is not before us for review. For by introducing evidence after its motion for a directed verdict at the close of plaintiff’s evidence was overruled, defendant waived its motion. Appelhans v. Goldman, Mo., 349 S.W.2d 204.

Plaintiff pleaded primary as well as humanitarian negligence, but by his Instruction No. 1 ultimately submitted his case to the jury on the humanitarian failure of the defendant to stop, or swerve, or slacken the speed of its motorbus, or sound a warning of its approach. Hence, our review is limited to the issue of whether at the close of the case there was sufficient evidence to justify a submission on any one of the assignments of negligence subsequently submitted. As was said in Nelson v. Wabash Railroad Co., Mo., 300 S.W.2d 407, 409: “* * * This is true because if plaintiff made a case under any theory submitted, then defendant’s motion for a directed verdict and its motion after verdict for judgment were both properly denied. DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628; Holmes v. McNeil, 356 Mo. 763, 203 S.W.2d 665; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91. * * *” It is hardly necessary to add that in determining whether plaintiff made a submissible case on one or more of its assignments of humanitarian negligence plaintiff is entitled to the benefit of all the favorable probative evidence in the case and all of the favorable inferences to be drawn therefrom, and defendant’s evidence is to be disregarded unless it aids plaintiff’s case; but plaintiff may not have the benefit of defendant’s evidence which is contrary to his own testimony nor contrary to plaintiff’s fundamental theory of recovery. Appelhans v. Goldman, supra; Price v. Nicholson, Mo., 340 S.W.2d 1.

The collision between the two vehicles occurred on February 24, 1961, about 5:00 P.M., at Market Street and Cardinal Avenue, in the City of St. Louis. Market runs east and west, and Cardinal north only from Market, forming a “T” type intersection. Market Street has three eastbound and three westbound lanes, each about 12 feet wide. The weather was clear, the streets dry, and the visibility very good — a bright dusk. According to plaintiff and his witnesses, Mr. and Mrs. Holman, plaintiff proceeded eastwardly on Market in his 1954 Buick, intending to turn left and go north on Cardinal. Because of the heavy flow of westbound traffic plaintiff was forced to come to a complete stop before making his turn. His automobile was in the inner eastbound lane, next to the center line, and about even with the west curb of Cardinal, in which position he waited (for an estimated one to two minutes) for westbound traffic to clear. His left turn indicator was on, and was operating. Plaintiff testified that a westbound car came to a stop in the inner westbound lane, facing plaintiff, and its driver motioned for plaintiff to turn left in front of him. As the westbound traffic had passed, plaintiff made his turn, and when in about the center of the middle westbound lane, headed north, he heard Holman shout a warning. Plaintiff glanced to his right and for the first time saw defendant’s motorbus, in the westbound curb lane of Market Street. He accelerated his car in an effort to clear the path of the bus, and about two-thirds of his automobile was north of the north curb line of Market Street when the impact occurred, knocking the car against a southbound taxicab which was stopped on the west side of Cardinal. The front of the motorbus hit the right rear of plaintiff’s car, from the right rear fender to the back. Plaintiff was unable to estimate the distance between his automobile and the motorbus when he saw the defendant’s vehicle, the time which intervened until the collison occurred, or the speed of his own car. He estimated that the bus was going 25 or 30 miles an hour when he saw it. Since no point is raised concerning the injuries plaintiff received or the damages to his automobile it is unnecessary to relate plaintiff’s evidence on those features of the case.

Holman, who was riding in the front seat beside plaintiff, testified that he saw the westbound bus in the curb lane “* * about half a block away” at the time plaintiff began to make his left turn. He estimated that the block was about 500 feet long, which would make the intervening distance about 250 feet. Holman stated that starting from its stopped position plaintiff’s car had reached a speed of between 5 and 7 miles an hour by the time it was in the middle westbound lane; that as the front end reached the curb lane he shouted a warning; and that plaintiff thereafter increased the speed of the car so that it was traveling approximately 18 or 19 miles an hour when the front end was even with the north curb of Market. Holman and his wife, Aileen, who was riding in the rear seat, both testified that the bus was not swerved or its speed decreased prior to the impact, and that its horn was not sounded or any other warning given. Alvertis Thomas, the operator of defendant’s motor-bus, said that his vehicle was traveling westwardly in the curb lane, at a speed of 25 to 30 miles an hour, when plaintiff started to turn left. Defendant’s witness, Altepeter, a passenger on the motorbus, testified that “ * * * some several seconds, maybe five seconds * * * ” elapsed between the time he saw plaintiff start his left turn and the time when the bus operator applied his brakes. Defendant’s witness Kane, another passenger, stated that the operator did not apply the brakes until the bus was “* * * a couple or three feet at the most” from plaintiff’s vehicle. Defendant’s witness Cooley, a third passenger, said that there was no other traffic on the north side of Market Street.

What we are here concerned with is what is sometimes designated as an “almost escaping” case. No lengthy or involved mathematical calculation is necessary to reach the conclusion that an earlier application of the brakes with a corresponding decrease in the speed of the bus, or a slight swerving of the vehicle a few feet to its left, would have been sufficient to allow the plaintiff’s car to have safely cleared the path of the motorbus. In fact, on cross-examination the operator admitted that if he had started to stop a little sooner, or if he had swerved a little bit more to his left, the accident would not have happened. Viewing the evidence in the light most favorable to the plaintiff, as we must, and talcing into consideration the classic elements which constitute a cause of action under the humanitarian doctrine, Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484, we are of the opinion that plaintiff made a submissible case on the defendant’s failure to slacken the speed or to swerve its motorbus. The court, therefore, did not err in overruling defendant’s motion for a directed verdict at the close of all of the evidence. Nelson v. Wabash Railroad Co., supra.

The second claim of error made by defendant is that the court erred in refusing to give its Instruction “A”. Defendant’s evidence tended to show that the plaintiff did not bring his eastbound automobile to a stop before making a left turn, but that proceeding at a speed of 25 to 35 miles an hour, and without any warning, plaintiff turned left from Market into Cardinal in front of and so close to defendant’s westbound motorbus that the operator was unable by any means to avoid the collision. Defendant sought to submit the theory of its defense to the jury by offering two instructions, Instruction No. 2 and Instruction “A”. Without the hypothesization of any facts, the jury was told in Instruction No. 2 that if when plaintiff entered a position of imminent peril it was then too late for the operator of the bus in the exercise of the highest degree of care to have avoided the accident by stopping, slackening speed, swerving, or warning, then plaintiff was not entitled to recover and its verdict should be for defendant. That instruction was given by the court. In refused Instruction “A” defendant hypothesized the evidence as to the location of the two vehicles, speed, and other facts which supported its defense, but incorporated therein was the following: ■“ * * * and if you find that the plaintiff’s automobile reached the west curb lane of Cardinal Avenue and made a left turn directly into the path of and in close and dangerous proximity to said moving motorbus at a time when plaintiff knew, ■or in the exercise of the highest degree of care should have known that it was dangerous to do so and that plaintiff made such turn without a timely and adequate warning of his intention to do so * (Emphasis ours.) Defendant argues that the instruction merely submitted the version of the facts as supported by its evidence, and that the quoted part of the instruction is similar to language approved in Montgomery v. Sobel, Mo., 334 S.W.2d 112, 114. Of course, there was no need for two instructions submitting the same theory of defense, Pulley v. Scott, 362 Mo. 1217, 247 S.W.2d 767; Hamell v. St. Louis Public Service Co., Mo.App., 268 S.W.2d 60; and the giving or refusing of repetitious instructions is a matter which rests largely in the discretion of the trial court. Corley v. Kroger Grocery & Baking Co., 355 Mo. 4, 193 S.W.2d 897. On that ground alone the court may have properly refused to give both. But there is a better reason why the court’s refusal to give Instruction “A” was not erroneous. While defendant was entitled to submit the facts shown by its evidence which had the legal effect of establishing that there was no humanitarian negligence on' its part, Montgomery v. Sobel, supra; Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, it had no right to interject into the case the plaintiff’s antecedent and contributory negligence, neither of which has any part in the defense of a case submitted solely on the humanitarian doctrine. Fisher v. Williams, Mo., 327 S.W.2d 256; Sheerin v. St. Louis Public Service Co., Mo., 300 S.W.2d 483; Smith v. Gulf, M & O R Co., Mo.App., 359 S.W.2d 388. The portion italicized had the effect of directing the jury’s attention to plaintiff's negligence prior to the time plaintiff entered into the position of imminent peril, and was therefore erroneous. Carney v. Stuart, Mo., 331 S.W.2d 558; Catanzaro v. McKay, Mo., 277 S.W.2d 566. The most cursory comparison discloses that the instant instruction went far beyond the language approved in Montgomery v. Sobel, supra, upon which defendant relies. We conclude that the court did not err in refusing to give the instruction.

It is the recommendation of the Commissioner that the judgment be affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

WOLFE, Acting P. J., ANDERSON, J.,. and FRANK W. HAYES, Special Judge, concur.