author: BLAIR, Judge.

text:
    James L. McDONALD, Plaintiff-Appellant, v. Frank C. PLAS, Defendant-Respondent.
    No. 24233.
    Kansas City Court of Appeals. Missouri.
    Feb. 21, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966.

      Robert A. Meyers and George C. Den-ney, Kansas City, for appellant.
    Norman O. Sanders, Fred J. Freel, Sheridan, Sanders, Peters & Carr, Kansas City, for respondent.
   BLAIR, Judge.

James L. McDonald brought suit against Frank C. Plas for $10,000.00 for personal injuries he claimed he suffered as a result of a collision between the ambulance he was operating and an automobile operated by Plas. A trial before the court and jury resulted in a verdict and judgment against McDonald and he appeals.

The collision occurred in the intersection of Brookside Boulevard and 59th Street in Kansas City. Brookside runs north and south and 59th runs east and west. Traffic is controlled at the intersection by colored electric signal lights, green indicating permission to vehicles to proceed through the intersection and red re-fuiring them to stop until the red signal light turns green. When the lights are green for east and west traffic on 59th, they are red for north and south traffic on Brookside and vice-versa.

On October 15, 1962 about 6 P.M. McDonald was operating an ambulance and traveling south on Brookside approaching 59th. Plas was operating his automobile and traveling east on 59th approaching Brookside. The ambulance admittedly was answering an emergency call. It was equipped with the statutory siren and red light. Sec. 304.022 V.A.M.S. McDonald received the emergency call at a time when he was many blocks from the intersection. He turned the siren and light on at once and set out to answer the call. This equipment operated continuously until the ambulance and automobile collided in the intersection. Plas drove into the intersection with a favorable green light facing him. McDonald drove into it with a forbidding red light facing him.

It is not questioned that McDonald was authorized to drive his ambulance through the red signal light if he observed the measure of care for the safety of others required of him in the circumstances. Nor is it questioned that Plas failed to yield the right-of-way to McDonald as required by Section 304.022, subd. 1, as follows: “Upon the immediate approach of an emergency vehicle giving audible signal by siren or while having at least one lighted lamp exhibiting red light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as far as possible to the right of the traveled portion of the highway and thereupon stop and remain in such position until such emergency vehicle has passed, except when otherwise directed by a police or traffic officer.”

McDonald submitted his claim to the jury by a single verdict-directing instruction grounded on the theory that Plas caused the collision and his injury by failing to yield the right-of-way as required by Section 304.022, subd. 1. In substance it told the jury that if it found that McDonald was operating an emergency ambulance, in the exercise of the highest degree of care, and that as he approached the intersection his siren was “sounding and audible” and that Plas actually heard or, by the exercise of the highest degree of care, could have heard, the siren sounding in time thereafter to have stopped his automobile and yielded the right-of-way, and that he negligently failed to do so and thereby collided with the ambulance and caused McDonald’s injuries, then McDonald was entitled to a verdict, unless he was guilty of contributory negligence.

McDonald challenges the propriety of two contributory negligence instructions Numbered 4 and S given for Plas by the court. There is no challenge in McDonald’s original brief to the sufficiency of the evidence to support these instructions, except this statement in the brief’s “Conclusion”: “Instruction No. 5 ignored and omitted plaintiff’s right of way as an emergency vehicle which plaintiff retained unless there be evidence not here present, that he knew or should have known that the defendant would not yield.” Plas says in his “Statement of Facts” in his responding brief: “Since no question has been raised in this appeal regarding the sufficiency of the evidence, respondent will not elaborate upon appellant’s abbreviated statement of the facts.” McDonald filed a reply brief in which there is no mention of the sufficiency of the evidence. In his “Points Relied On” and his “Argument” in his original brief McDonald deals with these two instructions entirely on the theory that they are misstatements of the law and not on any theory that the evidence was insufficient to support giving them to the jury. McDonald’s terse and unexplained statement in the “Conclusion” of his brief that evidence necessary to support Instruction No. S is “not here present” is wholly insufficient to present that question to this court for review. V.A.M.R. Civil Rule 83.-05; Lewis v. Watkins, Mo.App., 297 S.W.2d 595, 597; Whitehead v. Schrick, Mo.App., 328 S.W.2d 170, 179; Clemons v. Becker, Mo., 283 S.W.2d 449, 451-452; Vol. 3, Mo.Digest, Appeal and Error, @=*761. We will assume these instructions were supported by substantial evidence.

“We are mindful that under the terms of Civil Rule 83.24 it is our duty to construe all rules of civil procedure liberally so as to promote justice, to minimize the number of cases disposed of on procedural questions and, generally, to determine cases on their merits. We have adhered to that policy and have in numerous instances overlooked violations of Rule 83.05 when the interests of justice so required. However, this court would be derelict in its judicial duty if it did not insist upon at least substantial compliance with the rules governing appellate procedure. See Ambrose v. M. F. A. CoOperative Association of St. Elizabeth, Mo. Sup., 266 S.W.2d 647; Weinbrenner v. McCall, Mo.App., 336 S.W.2d 532. The burdens that result from imperfect appeals fall upon responding parties as well as upon reviewing courts. When appellants fail to state facts and define issues as the rules prescribe, respondents are deprived of their just entitlement — a full opportunity to know and answer the precise questions in controversy.” Walker Brothers, Inc. v. J. K. Seear (U.S.A.) Ltd. et al., Mo.App., 364 S.W.2d 51, 52.

Contributory negligence Instruction No. 5, given for Plas, reads as follows: “The Court instructs the jury that the plaintiff was under an obligation to exercise the highest degree of care and to keep a lookout for the approach of other vehicles at the intersection of Brookside Boulevard with 59th Street, accordingly, if you find and believe from the evidence that the plaintiff failed to exercise the highest degree of care in keeping a lookout for the approach of the automobile operated by the defendant, and if you further find that such failure on the part of plaintiff, was negligence, if you so find, and if you further find that said negligence on the part of plaintiff, if any, directly and proximately contributed to cause the collision mentioned in evidence, then you are instructed that you must return your verdict in favor of defendant even though you may find that he was also negligent in the operation of his said automobile.”

Concerning this instruction McDonald’s “Point Relied On” argues: “Instruction No. 5 directs a verdict against the plaintiff if plaintiff 'failed to exercise the highest degree of care in keeping a lookout for the approach of the automobile operated by defendant’ and was thereby negligent. This was error because it placed upon plaintiff the absolute duty of looking and seeing all that was possible to see when under the law the plaintiff was justified in assuming that the defendant would observe the statute and yield the right of way until plaintiff knew or in the exercise of ordinary care should have known that defendant obviously did not intend to yield the right of way.”

McDonald argues that while operating an emergency vehicle and answering an emergency he was justified in assuming that Plas would observe Sec. 304.022, subd. 1, supra, and yield the right-of-way until he knew or, in the exercise of ordinary care, should have known Plas obviously did not intend to do so. He cites Frandeka v. St. Louis Public Service Co., Mo., Div. 1, 1950, 234 S.W.2d 540, 541, 545; Rowe v. Kansas City Public Service Co., K.C.App., 1952, 241 Mo.App. 1225, 248 S.W.2d 445, 449; and Allman v. Yoder, Mo., Div. 2, 1959, 325 S.W.2d 472, 477-478. These decisions all ruled that the driver of an emergency vehicle answering an emergency was required to exercise only ordinary care. The later decision in Ficken v. Hopkins, Mo., Div. 2, 1965, 389 S.W.2d 193, 199, overrules Allman without mentioning Frandeka or Rowe, saying: “As previously noted, Section 304.010 requires that ‘Every person operating a motor vehicle on the highways of this state * * * shall exercise the highest degree of care, * * and neither it nor Section 304.022, pertaining to emergency vehicles makes any exception. In other words, the driver of an emergency vehicle authorized by par. 4(2) of Section 304.022 to do the things therein provided without constituting a violation of what are known as the rules of the road, when doing them, must exercise the highest degree of care, which is such care as a very careful and prudent person would ordinarily use under the same or similar circumstances. For this reason the statement in Allman v. Yoder, Mo., 325 S.W.2d 472, relied on by Goetz and Eickhoff which indicates that ordinary care only is required in some situations does not correctly state the degree of care required by the statute.” Neither McDonald nor Plas has cited Ficken. Obviously the decisions of Divisions 1 and 2 of the Supreme Court prescribing the degree of care required of the driver of an emergency vehicle are in irreconcilable conflict. Even if Frandeka, Rowe and Allman could be considered as still in force, and Ficken had not been adjudged, these three decisions on which McDonald relies would be of no assistance to him in this case.

For by his own verdict-directing instruction he required the jury to find “that plaintiff was exercising the highest degree of care” at all pertinent times. By voluntarily submitting “the highest degree of care” as the standard of his own duty, he lost the right to complain that this contributory negligence instruction also required him to exercise the highest degree of care. “When plaintiffs elected to try their case on the theory of negligence and adopted a degree of care for which they sought to hold defendant liable, such theory and practice should prevail throughout the case and defendant should not be denied the privilege of meeting the issue so made and presenting the case to the jury accordingly.” Owen v. Chicago Great Western R. Co., Mo.App., 47 S.W.2d 195, 197. A party cannot complain of an error in an instruction of the opposite party which is common to the instructions of both parties. Bowles v. Eisenmayer, Mo.App., 22 S.W.2d 884, 885; Carey v. Crawford Electric Cooperative, Inc., Mo., 347 S.W.2d 184, 190; Crews v. Kansas City Public Service Co., 341 Mo. 1090, 111 S.W.2d 54, 57. The decisions supporting this ruling are so familiar and numerous that no further citation is necessary, except Vol. 3, Mo.Digest, Appeal and Error, Vol. 27, Mo. Digest, Trial, @==>272.

McDonald argues that Instruction No. 5 is erroneous because it omits to tell the jury that he was justified in assuming that Plas would observe the statute and yield the right-of-way until he (McDonald) knew, or in the exercise of ordinary care, should have known that Plas obviously did not intend to do so. We have demonstrated that on this record this instruction was not erroneous because it required McDonald to exercise the highest degree of care. We next consider whether the instruction was erroneous for failing to advise the jury that he had the right to assume that Plas would obey the statute and yield the right-of-way until he (McDonald) knew or, in the exercise of the standard of care governing this particular case, should have known that Plas did not intend to do so. Instruction No. 5 is a conventional one, frequently given and consistently approved. In the decisions it has met many objections, one of which is the objection now raised against it. In Boehm v. St. Louis Public Service Company, Mo., 368 S.W.2d 361, 367, an instruction analogous to this one in all legal respects was given. The court said: “Company’s objection is that this authorized the jury to find against Company for failing to take evasive action upon the mere appearance of the motor scooter, even before there was any probability or likelihood of danger of collision; that Company had no duty to take preventive action until there was apparent danger of a collision, which basic fact the jury was not required to find. In support of this theory Company cites Stakelback v. Neff, Mo.App., 13 S.W.2d 575; Nydegger v. Mason, Mo.Sup., 315 S.W.2d 816; Burke v. Renick, Mo.App., 249 S.W.2d 513; Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, and Rosenkoetter v. Fleer, Mo.Sup., 155 S.W.2d 157. The same point was raised and the same cases cited in Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, which also involved a ‘lookout’ instruction. We pointed out that these cases, involving the precautionary duty to slacken, stop or swerve, are inapplicable where the negligence involved is the failure to keep a lookout; that in a ‘lookout’ instruction it is not essential to hypothesize the exact manner and means in and by which defendant could have avoided the collision so long as there is substantial evidence that he had the means and ability to have so acted that a collision would have been avoided; that plaintiff is not required in a lookout instruction to insert a finding that the duty to act was dependent on the fact of apparent danger of collision; that in this type of submission (lookout) ‘it is generally considered sufficient to hypothesize failure to keep a lookout and require a finding that such failure was negligence and directly caused the collision.’ 329 S.W.2d l. c. 25 [9, 10]. See also Horrell v. St. Louis Public Service Co., Mo. Sup., 277 S.W.2d 612, 615 [5], and Anthony v. Morrow, Mo.App., 306 S.W.2d 581, 588 [8].”

In Whaley v. Zervas, Mo., 367 S.W.2d 611, 614, an instruction identical with Instruction No. 5 was challenged on the same ground and approved by the Supreme Court which ended its ruling saying: “It is sufficient (under the facts in this case) if it requires a finding of failure to keep a lookout and that such failure was negligence which was a proximate cause of the casualty. The essential fact situation was hypothesized therein, but if plaintiff thought that additional facts should have been included in the hypothesis he should have offered an amplifying instruction.” We notice that the court in Whaley restricted its ruling to the facts and circumstances of that case. Nothing has been presented to us, and we see nothing, differentiating the facts and circumstances in Whaley from those in this case.

If McDonald desired to inform the jury that his “duty to act was dependent on the fact of apparent danger of collision” and that he was entitled to assume that Plas would obey the statute and yield the right-of-way until he (McDonald) knew or, in the exercise of the standard of care governing this particular case, should have known that Plas did not intend to do so, then he should have formulated and requested an amplifying instruction so advising the jury. He failed to present such an amplifying instruction and his failure deprives him now of all right of complaint on this ground. The rule is a familiar one that where an instruction is sufficient in scope and legally correct, a party who fears the generality of the instruction may he misleading to the jury must prepare and request an amplifying instruction embodying his views or he will not be heard to complain. Trusty on Constructing and Reviewing Instructions, Section 26, p. 123; Raymond Missouri Instructions, Vol. 1, Section 41, and decisions cited; Boedeker v. Wright, Mo., 312 S.W.2d 829, 837; Norvell v. Schupbach, Mo.App., 185 S.W. 323, 326; Lampe v. United Rys. Co. of St. Louis, 177 Mo.App. 652, 160 S.W. 899, 901; State ex rel. Rothenheber v. Allen, Mo., 270 S.W. 633, 634; Vol. 2A Mo. Digest, Appeal and Error, Vol. 27 Mo. Digest, Trial, ^256(2).

McDonald contends that Instruction No. 5 required of him the absolute duty to discover the presence of the Plas automobile at the earliest possible time and to anticipate that Plas would not yield the right-of-way as required by Section 304.022, subd. 1. He cites Welcome v. Braun, Mo., 319 S.W.2d 586, 588. The Welcome case was explained and distinguished in Boehm v. St. Louis Public Service Company, Mo., 368 S.W.2d l. c. 366. In Boehm the appellant complained of a contributory negligence instruction that was as general as the one before us, saying that it placed an absolute duty on the defendant company to have “seen or discovered” the presence of the vehicle in which the plaintiff was riding as a passenger. “In support of this theory, Company cites Welcome v. Braun, Mo.Sup., 319 S.W.2d 586, in which an instruction was condemned for barring recovery on the ground of contributory negligence if plaintiff could have seen defendant’s car, could have realized that there was danger of collision, and could have stopped, thus placing upon plaintiff an absolute duty, and not merely requiring plaintiff to exercise the highest degree of care in seeing, realizing and endeavoring to stop. The two instructions are not analogous. In Welcome v. Braun, the instruction totally failed to limit the lookout duty to the exercise of the highest degree of care, whereas in the instant [case] the jury was instructed that Company 'owed the duty to exercise the highest degree of care to keep and maintain a * * * lookout * * so as to see, discover, be cognizant * * The duty was expressly stated as a relative duty, qualified by the requirement of the exercise of the proper degree of care. ‘It seems to us to lay down the proper rule, i. e., that defendant was under a duty to use the highest degree of care to see and discover the presence of other vehicles, and does not place an absolute duty upon defendant so to do.’ Nelson v. St. Louis Public Service Co., supra, [Mo.App.,] 360 S.W.2d [356] l. c. 360 [2].” Obviously, Instruction No. 5 is not analogous to the instruction ruled on in Welcome or open to the complaint made there or here. For Instruction No. 5 embraces the requirement that McDonald exercise the highest degree of care, the very degree of care he placed on himself in his own verdict-directing Instruction No. 1. There is no merit in any of the complaints made against Instruction No. 5.

Contributory negligence Instruction No. 4 given for Plas by the court told the jury that if it found that McDonald drove the ambulance into the intersection when the electric signal light was red, and did so at a speed in excess of fifteen miles per hour, he was negligent, and that if that negligence directly contributed to cause the collision, he was not entitled to a verdict, and that this was true even though Plas was also negligent. McDonald argues this was error because “it conflicts with Section 304.022 R.S.Mo.1959 which permits drivers of emergency vehicles to proceed past a red or stop signal or stop sign slowing down as may be necessary for safe operation.”

There is no question that this statute so provides and that it does not require the driver of an emergency vehicle in all circumstances to reduce his speed to fifteen miles per hour while driving “past a red or stop signal or stop sign.” It requires only that the driver shall slow down “as may be necessary for safe operation.” However, this instruction was not grounded on this statute but on Section 58.180(2), (2) (a), Revised Ordinances, Kansas Gty, Missouri, which declares “Whenever such emergency vehicle is operated contrary to the indication of the traffic signal or stop sign, such emergency vehicle shall reduce speed as follows: (a) Vehicles of the passenger chassis type must reduce to fifteen miles per hour.” Plas pleaded this ordinance as a defense in his answer. McDonald did not attack its validity by a motion to strike or by a reply. The only issue made by the pleadings, on this ordinance, was whether McDonald violated it. Mc-Grath v. Meyers, 341 Mo. 412, 107 S.W.2d 792, 794. He waited until Plas offered the ordinance in evidence and then for the first time questioned its validity by an oral objection. As stated in his brief, the objection was: “These ordinances in question are * * * contrary to the statute of the subject and * * * are illegal for that reason.” This objection was general and insufficient. “* * * [Cjounsel must put their finger on the specific provision of the Constitution and the specific law that is violated by the ordinance objected to.” Hafner Mfg. Co. v. City of St. Louis, 262 Mo. 621, 172 S.W. 28, 31-32; Vol. 27 Mo. Digest, Trial, (2) (3). Even if he had raised a specific oral objection, it would have availed him nothing at that late stage of the proceedings. Challenges to the validity of ordinances on the ground that they conflict with a state statute must be raised “at the first opportune moment” or they are waived. Clark v. Trilinsky, Mo. App., 170 S.W.2d 459, 461; McGrath v. Meyers, supra, 107 S.W.2d l. c. 794.

McDonald contends that his oral objection was the only means available to him to attack the validity of the ordinance, if he followed procedure prescribed by the Civil Code, and that therefore his objection was timely and raised at the first opportune moment. He says that the ordinance was pleaded in the answer in a manner that failed to disclose its conflict with Section 304.022 and he could not successfully move to strike it on the ground of invalidity. If he is right in his complaint against the answer, he is right in saying he could not have successfully moved to strike the ordinance. We do not need to discuss the answer, for a ruling upholding his complaint against it would not settle the question with which we are dealing. Exactly in point is McGrath v. Meyers, supra, 107 S.W.2d l. c. 794. He next contends that he was exempted from attacking the ordinance by reply because Civil Rule 55.01 declares, as he says, that a reply is required only “if the answer contains a counterclaim denominated as such,” and there was no counterclaim in this case. He cites Smyth v. City of St. Joseph, Mo.App., 297 S.W.2d 578, 580. It does not reach, much less determine, the question before us.

The determinative ruling is Frank v. Wabash Railroad Company, Mo., 295 S.W.2d 16, 21: “It is true that municipal ordinances regulating subjects, matters, and things upon which there is a general law of the state must be in harmony with the state law. * * * However, we need not determine whether the ordinance in this case is invalid. The invalidity of an ordinance in the respect relied upon by plaintiff, like the unconstitutionality of a statute, must be raised at the first opportunity, and if not so raised, its invalidity is deemed waived. * * * In Roper v. Greenspon, supra, an ordinance was pleaded in the answer. Its validity was not challenged in the reply. It was there held [272 Mo. 288, 198 S.W. (1107) 1108, (L.R.A.1918D, 126)], that the invalidity of an ordinance must be asserted ‘at the first open door under the orderly procedure in the case’, and that if the defense ‘in its answer relies upon a pleaded ordinance, then the reply would be the first open door.’ No reply was filed in this case and none was required in order to have the pleadings at issue, hut a reply was permissible. In addition, if it was the position of plaintiff that the ordinance was invalid, and therefore could not properly constitute a matter of defense, a motion to strike the pleadings pertaining to the ordinance was available to defendants. * * * [W]e conclude that this issue was not properly and timely raised, and was therefore waived.”

McDonald does not contend that Instruction No. 4 was erroneous for any reason other than the claimed invalidity of the - ordinance. We rule that this question was not properly and timely raised and was therefore waived.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: BROADDUS, Special Commissioner.

license: Public Domain

text:
    Helen ISGRIGG, Appellant, v. BOARD OF TRUSTEES OF POLICEMEN’S AND FIREMEN’S PENSION BOARD OF JOPLIN, Missouri, Respondent.
    No. 24285.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966.
    Louis Wagner, Kansas City, for appellant.
    Wm. H. Burden, City Atty., Joplin, for respondent.
   BROADDUS, Special Commissioner.

This case arises as a result of a petition filed by Helen Isgrigg in the Circuit Court of Cole County in which she sought a review of a decision of the Board of Trustees of the Policemen’s and Firemen’s Pension Board of the City of Joplin, denying her application for death benefits as the widow of Roy E. Isgrigg, deceased, under the provisions of Ordinance 19655 of said City. After a hearing the Circuit Court affirmed the decision of the Board and this appeal followed.

For many years prior to his death on March 2, 1962, Roy E. Isgrigg was the Chief of Police of the City of Joplin.

Section 11 of the Ordinance specifically provided that among the “members covered” was the “Chief of Police.” And section 17 provided that if any member “shall suffer a personal injury by accident arising out of and in the course of his employment * * * and shall by reason thereof be disabled and prevented from performing his duties * * * he shall be entitled to disability benefits * * * ”, and “that illness due to unusual or extraordinary exposure to weather conditions or other hazards as an incident to his duties and to an extent beyond that to which the general public is subject shall be deemed to be an accidental injury within the meaning of the term ‘personal injury by accident.’ ”

Section 21 of said Ordinance contained the provision that if any member should “die as a result of personal injury by accident arising out of and in the course of his employment” his widow would be entitled to certain death benefits.

The evidence before the Board disclosed that during the months of March and April, 1961, while in the scope of his employment and as an incident to the performance of the duties required of him Mr. Isgrigg was subjected to exposure to severe rain, hail, ice and sleet storms beyond that to which the general public was subjected. This exposure caused him to develop an acute respiratory infection. At the time x-ray and fluoroscopic examination of his chest proved to be negative. His condition became worse, and on July IS, 1961, he was admitted to Barnes Hospital in St. Louis, Missouri. Then, and not until then did examination reveal that he had cancer of the right lung, and that he had this condition prior to the exposure. His condition was then inoperable, his chest was explored and closed.

Dr. John Koehler testified that he had been the treating physician of Mr. Isgrigg for a number of years; that he was a graduate of Washington University School of Medicine in St. Louis; that he specialized in internal medicine; that he had three years of post-graduate training at the St. Louis City Hospital; that he was a consulting physician of Camp Crowder and at the Missouri State Sanitarium for diseases of the chest; that he was a member of the Missouri Medical Association, the American Medical Association, the Southern Medical Association and American Society of Internal Medicine; that he had training in the diagnosis of cancer. The first time he found any serious physical condition of Mr. Isgrigg was on July 11, 1961. Isgrigg reported that while the doctor was on vacation, three or four weeks prior to July 11, he had developed the flu or an upper respiratory infection causing a lot of coughing; that he had seen a Dr. Schulte who had given him an antibiotic. At the time of the conversation, he still had a severe racking cough which was keeping him from resting at night. He came to the office that day, and x-rays were taken of his chest which showed evidence of a tumor of the lung. He was then advised to go to Barnes Hospital for visits and possible treatments of the tumor. The doctor made arrangements for his entry there. He received some reports from the doctors there when Isgrigg came back. The diagnosis at Barnes was carcinoma of the lung. Witness’ findings concurred with the findings at Barnes Hospital. The doctor was of the opinion that exposure of Mr. Isgrigg to rain and other elements for a period of time from the 1st day of March, 1961 to the 28th day of June, 1961, did not alone cause carcinoma of the lung, or would not have caused his death and terminal disease.

In explanation of a letter (Exhibit 4) signed by Dr. Koehler, he stated in essence that as a result of exposure, Isgrigg developed an upper respiratory infection which caused him to have a cough and so forth, and initiated the symptoms which caused his initial hospitalization. He did not say that it caused his death and did not infer that it caused the cancer. Witness further stated “as far as I can tell from any medical opinion that I of myself know or have read, because of this problem, in my opinion, this could not have caused the cancer.” In answer as to whether or not Isgrigg had a cancer before he was out in the elements, or whether witness suspected that he may have had it, he stated that one year before, he had a normal chest x-ray; that there was a tumor on x-ray on the 11th day of July; that lung cancer cannot grow in a period of one or two months to the size that it was because when he was sent to St. Louis and underwent an exploratory operation, he was already inoperable so that the cancer could not in his opinion have followed the exposure. The exposure did call our attention to his chest. It did set off the infection, or help to set off the infection which in turn caused the symptoms which made us check his chest. The doctor stated that the tumor was probably there as early as January.

In answer to the following questions propounded to witness by claimant’s attorney, the doctor made the following answers:

Q. Assuming doctor, that prior to May, 1961, Roy Isgrigg had periodical checkups consisting of chest x-ray, a complete physical examination and laboratory tests, and that the clinical findings were negative, and that prior to May, 1961, he was exposed to unusual and extraordinary weather hazards in the line of duty beyond that which the public is subjected, and that as a result thereof developed and acute upper respiratory infection with an acute bronchitis: Would such exposure tend to aggravate a preexisting latent cancerous condition which hastened his hospitalization in July, 1961 ?
A. I have to answer it with qualifications. The upper respiratory infection in my opinion in all probability was caused by his exposure to the elements. This in turn did cause him to have bronchitis, and this in turn, did cause him to come in due time to hospitalization more quickly than he would have come if he had not had this exposure. That is correct.
Q. Would you say, then, it aggravated a pre-existing condition?
A. This in the part I wanted to finish saying and that is, that from my knowledge of cancer, I cannot believe that this did cause, or aggravate I should say, the cancer itself. It aggravated his overall condition. It caused him to go to the hospital, but this was a temporary aggravation. The acute bronchitis in due time cleared up, but then, we were left with the tumor. The tumor, which in my opinion, pre-existed this problem.
* ⅜ * ⅝ * *
Q. No, what you said about infection.
A. Well, now, I don’t believe — at least, I didn’t mean to say this in the way that you understood it. In my opinion, this infection did not infect or set off the cancer. This infection bothered or affected his bronchial tubes, his lung, and did cause him to have a systemic response as a result, but it was not a direct aggravation to the tumor. I don’t believe it was causative to the tumor and I do not believe it would hasten the growth of a tumor.

Witness further testified that the bronchitis condition weakened him for a short period of time.

Q. Now, wouldn’t an individual in a weakened condition as he was, exposed to the elements and suffering from bronchitis, be more susceptible to an aggravation if there was an aggravation, than a well person?
A. If you are talking about aggravation of tumor, this I can’t accept. If you are talking about an aggravation of preexisting infection or terminal illness at the termination, at the point where this individual is near death, then I would say at this time it may have hastened his death. But, early, this early in the disease, when he had been active and when he did have a complete clearing of his bronchial infection as far as what can be related to this exposure, I cannot say there was an aggravation of the pre-exist-ing, as you say, “latent condition.”

Appellant contends that the court erred in affirming the order and decision of the Board on the finding that there was substantial and competent evidence to support the order.

There is no controversy as to whether or not claimant’s decedent became ill as a result of his exposure to the elements. The evidence was that he did develop the flu or an upper respiratory condition referred to as bronchitis some time prior to the 30th day of April, 1961, at which time he laid off from work, received his first medical attention and remained in bed for a period of two weeks. Neither is there any controversy that petitioner’s decedent died of lung cancer. The decision of the Board turned on whether or not the exposure and resulting illness caused his death. This is clearly manifested by questions asked Dr. Koehler by the various members of the Board. The only competent medical evidence submitted to the Board on the question of causation was the testimony of Dr. Koehler who had been decedent’s family physician for a period of many years and knew more about his physical condition than any other person. Dr. Koehler testified that in his opinion, the lung cancer was not caused or aggravated by decedent’s exposure to the weather during the period of time from March 1, 1961 to June 28, 1961. He stated that the tumor probably had its inception in January of that year; that an x-ray taken a year before the x-ray taken on July 11, 1961, did not show any evidence of tumor. There was no medical evidence presented to the Board by the claimant that claimant’s decedent’s death was caused by his exposure to the elements. On the contrary, the doctor testified that the bronchial or upper respiratory condition had completely cleared up; that this condition did cause him to have the x-ray made on July 11 which did disclose the tumor and did result in him being sent to Barnes Hospital in St. Louis where an exploratory examination of his chest disclosed his condition to be so far advanced that it was inoperable. The Board’s decision was supported by competent and substantial evidence. The evidence does not show in any respect that the Board in arriving at this decision was arbitrary, capricious or unreasonable or that it abused its discretion. Its interest in determining causation was clearly demonstrated by the number and type of questions asked Dr. Koehler by various members of the Board.

Appellant argues that the order of the Board was unlawful because the Board made no findings of fact nor conclusions of law, citing Sect. 536.090 V.A.M.S. The order and decision of the Board stated:

“ * * * * and having given full and careful consideration to all the evidence does find that neither the said Roy E. Is-grigg, nor his widow, Mrs. Roy E. Isgrigg are eligible for benefits under Section 21, Ordinance 19655.”

Appellant’s petition for review presented to the Circuit Court did not assert that the order of the Board was “unlawful” because it was not accompanied by conclusions of law and findings of fact. Furthermore, appellant did not at the hearing before the Board make any request for such conclusions and findings. Thus she is in no position to now complain. Carroll Construction Co. v. Kansas City, Mo.App., 278 S.W.2d 817.

The case of Bergman v. Board of Trustees, Mo.Sup., 386 S.W.2d 49, cited by appellant is clearly distinguishable from the instant case. In that case the court stated from the meager record before it the court could not determine what law was applicable to appellant’s claim, that is, whether it was that set forth in the statutes or that contained in the ordinance and it could not “determine what law was applied to what facts by the Board of Trustees.” This is not the situation here.

The judgment should he affirmed. Your Special Commissioner so recommends.

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court, and the judgment is affirmed.

CROSS, P. J., and HOWARD, J., concur; BLAIR, J., not participating.


author: CROSS, Presiding Judge.

text:
    BORBEIN, YOUNG & COMPANY, Plaintiff-Respondent, v. Joseph C. CIRESE and Mary T. Cirese, Defendants-Appellants, and W. N. Hemstock and Dominic F. Tutera, Administrator of the Estate of Michael J. Cirese, Defendants-Not Appealing.
    No. 24289.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966.

      J. K. Owens, Kansas City, for appellants.
    George H. Chamo, Jr., Tucker, Charno, Willens & Jouras, Kansas City, for respondent.
   CROSS, Presiding Judge.

This is a suit to recover an unpaid balance of purchase price due for merchandise sold on the open account of Universal Trailer and Manufacturing Corporation, hereinafter referred to as Universal. That entity was incorporated in Missouri in 1948, with charter authority to manufacture and deal in trailers,- but on January 1, 1954, its charter was forfeited and the corporation was dissolved by the Secretary of State. Notwithstanding, the various officers and directors of Universal continued thereafter to conduct business in Universal’s name and to manufacture trailers until the year 1960, the same as it had done prior to forfeiture of its charter. In the years 1959 and 1960 plaintiff Borbein, Young & Company sold and delivered parts and materials to the account of Universal on which there is an unpaid balance in the sum of $10,913.94. Thereafter in the year 1960 Universal was adjudicated a bankrupt.

As plaintiff, Borbein has sued and undertakes to recover from the four named individual defendants on theory that defendants Joseph C. Cirese, Mary T. Cirese and W. N. Hemstock, together with Michael J. Cirese, deceased, whose administrator is also a defendant, were Universal’s officers and directors at the time its charter was forfeited on January 1, 1954; that immediately upon such forfeiture and by reason of their stated capacities, the four persons above named became trustees of the dissolved corporation charged with the legal duty to wind up its business and affairs as provided by law; that they failed to liquidate the corporation but instead continued to operate Universal’s business; and, that in consequence, defendants Joseph C. Cirese, Mary T. Cirese and W. N. Hemstock, and Michael Joseph Cirese, deceased, became personally liable, jointly and severally, for the obligations incurred by them in the course of their activities and operations in conducting the business of Universal after its dissolution in excess of their authority as such trustees.

Trial to a jury resulted in a verdict and judgment against all four defendants awarding Borbein the principal sum of $10,913.94 and interest in the amount of $2946.78, a total of $13,860.72. However, this appeal is prosecuted solely by defendants Joseph C. Cirese and Mary T. Cirese, who are husband and wife. They will be generally referred to hereinafter as appellants.

Borbein has moved for dismissal of the appeal on complaints principally that appellants have violated Civil Rule 83.05(a), (b), V.A.M.R. in that their brief contains no jurisdictional statement; fails to contain a fair and concise statement of facts, and is incomplete, inaccurate and argumentative ; fails to provide any page references to the transcript in the statement of facts and omits such page references from the entire remaining portion of the brief except for reference to the quotation of one instruction ; and, fails to set forth the text of two instructions claimed to have been erroneously refused. Although appellants’ brief is deficient in the respects charged, in the exercise of our discretion we decline to dismiss the appeal and proceed to examine appellants’ assignments of error.

Appellants’ first point is a complaint that the court erred in giving Borbein’s verdict directing instruction (No. 2) because “it directs the jury to find against all the defendants, and does not give the jury the right to find for some of the defendants and not for all defendants”.

This allegation of error has not been properly preserved for appellate review. It is shown by the record that the only objection to the instruction made at the trial before submission to the jury was that defendants “object and except” to the action of the court in giving it. Civil Rule 79.03 requires that if specific objections to instructions are not made at the trial before submission to the jury, then specific allegations of error must be set forth in the motion for new trial to preserve the error for review. The sole allegation in appellants’ separate motions for new trial with respect to the instruction or the court’s action thereon is that “The court erred in giving Instruction No. 2 offered by plaintiff”. Obviously appellants have not satisfied the requirements of the cited rule. Notwithstanding, we elect to consider the merits of their complaint.

In substance the instruction required the jury to return a verdict against “the defendants and for the plaintiff” if they found (1) that Universal’s charter was forfeited on January 1, 1954; (2) that Michael Joseph Cirese (now deceased), Joseph C. Cirese, Mary T. Cirese and W. N. Hemstock were then the officers or directors of Universal; (3) that those named persons continued thereafter to operate Universal’s business and affairs; (4) that at their instance and request Borbein sold to Universal’s account the goods and merchandise in question; (S) that the amount charged was the reasonable value thereof, and (6) remains unpaid; (7) and, that demand for payment was made.

The foregoing submission was made in reliance upon provisions of V.A.M.S., Section 351.525 as interpreted by the Supreme Court en banc in Leibson et al. v. Henry et al., 356 Mo. 953, 204 S.W.2d 310, in affirming a judgment holding stockholding directors personally liable. Pertinent portions of the opinion are as follows: “Upon forfeiture, the plaintiffs (directors) under § 5094 (present Section 351.525) became trustees with the full power to liquidate Shelco’s affairs to the end of protecting the interests of the stockholders and the creditors. Plaintiffs, as trustees, were without power to transact any business of Shelco, except to wind up its affairs and distribute its assets. * * * Acting beyond their powers as trustees, plaintiffs continued the transaction of business in like manner as had Shelco prior to the forfeiture * * *. It seems to us a court should recognize plaintiffs’ personal liability for obligations so incurred by them in such unlawful transaction of business in the corporate name, transgressing their powers as trustees. If a court should otherwise rule, such a ruling would be in violation of the plain purpose of the law, open the door to fraud, and sanction the former directors’ operation of the business, without liability, affording opportunity for wasting or diverting the corporate assets, thus subjecting stockholders, creditors and the State to a remediless loss of their rights to avail themselves of the corporate property”.

Instruction No. 2 correctly applies the law as written in the statutes of Missouri and declared by our courts, and each hypothesis of fact presented by it is amply supported by substantial evidence. Although not clearly expressed, it appears to be appellants’ contention that the instruction should have told the jury in express terms that it could return a verdict in favor of one or more of the defendants. There is no merit in this submission. In the first place, the instruction does not direct a verdict against any defendant in the absence of an affirmative finding as to each of the essential elements hypothesized therein, although it directs a verdict against all four if those findings are made. If appellants interpret the instruction otherwise, they have misconstrued its plain language.

Furthermore, the instruction must be read and understood in relation with all the other instructions given. The form of verdict instruction advises the jury precisely how to return a verdict against all defendants, or against some defendants only, or in favor of all defendants, alternatively, in five different forms. Thus, the jury was fully informed that in the absence of necessary findings as to any one of the defendants their verdict should be in that party’s favor. “So the jury could hardly understand that they were not at liberty to find against one or more of the defendants and in favor of the other or others”. Randol v. Kline’s Inc., 330 Mo. 343, 49 S.W.2d 112. Also see Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43, 57, and Baird v. National Health Foundation, 235 Mo.App. 594, 144 S.W.2d 850, 859. Appellants cite no authority to the contrary.

Actually, appellants’ present complaint arises from their failure to request an instruction, converse to Instruction 2, to the effect that if the jury found that appellants were not officers or directors of Universal or did not participate in operating its business after dissolution (the only controverted issues), then their verdict should be returned in appellants’ favor. Since appellants made no such request their complaint now is unavailing. See Britain v. Davis, Mo.App., 198 S.W.2d 354, 356; 2A Mo. Digest, Appeal and Error, p. 189, (1).

Appellants next assign error in the trial court’s refusal of Instructions B and C, offered on their behalf. Again we observe that appellants have not preserved their right to urge the errors claimed because (1) no specific objection or allegation of error was made as to the refusal of either instruction during the trial or was contained in their motions for new trial as required by Civil Rule 79.03, and (2) the instructions which are subject of the complaint are not set out in appellants’ brief as required by Civil Rule 83.05(a). Nonetheless, we have considered the assignment and find it to be without merit.

Instruction B peremptorily informs the jury that in law and in fact Joseph C. Cirese was not a director of Universal at the time the obligation sued on was contracted, and directs the jury to return a verdict in his favor. The instruction is erroneous in its application of the law. The personal liability of officers and directors of a dissolved corporation arises from their neglect of duty as trustees to liquidate the corporation and distribute its assets at the time of charter forfeiture. If they fail in that statutory duty and unlawfully continue to operate the business of the corporation after its dissolution they would remain individually liable for corporation debts even though incurred at a time subsequent to their active participation in business affairs on behalf of the corporation. So it is that the vital date, as it affects the propriety of the instruction, is the date of forfeiture— not when “the account sued on was contracted”.

Instruction B is also erroneous in its attempted factual submission. There is abundant substantial evidence, in the nature of documentary proof, to establish that Joseph C. Cirese was an officer and director of Universal both at the time its charter was forfeited and when the debt was contracted. In the process of Universal’s organization as a corporation, he subscribed the articles of incorporation, under oath, as a stockholder and original incorporator. In like manner, he also subscribed the requisite affidavit showing the recording of articles of incorporation and the payment of capital with which the corporation would commence business, stating therein that he was a director of the corporation. The last annual registration report filed by Universal (for the year 1952) recites that he was vice president and a director of the corporation. Annual federal income tax returns were filed on Universal’s behalf for the years 1954 through 1958, all of which stated that appellant Joseph C. Cirese was Universal’s vice president, that he owned substantial shares of stock, devoted all or part of his time to Universal’s business, and was paid a salary of $10,400.00 (except for the year 1958 in which he received $3,800.00). Again it is shown by copies of corporation franchise tax reports for the years 1954, 1955, 1956, 1957 and 1959, prepared by an officer of Universal on its behalf and kept in its business records, that appellant Joseph C. Cirese was vice president and a director of the corporation during those years. Furthermore, during pendency of bankruptcy proceedings against Universal in 1960, Joseph C. Cirese executed and filed on Universal’s behalf an entry of appearance and consent to its adjudication as a bankrupt, supported by his own affidavit, stating that he was “an officer and principal stockholder in this corporation”.

We next consider the propriety of Instruction C which mandatorily directs a verdict in favor of defendant (appellant) Mary T. Cirese without hypothesizing any issue of fact. It is contended on her behalf that the instruction should have been given because there was no evidence that she was a director of the corporation or took any part in its affairs. In ruling the question it is our duty to consider the evidence in the light most favorable to Borbein as the prevailing party respondent, and accord it the benefit of all favorable inferences, and disregard appellants’ evidence unless it supports respondent’s case. 3 Mo.Digest, Appeal and Error, p. 428,

It is shown by Universal’s articles of incorporation that Mary T. Cirese was an original stockholder and incorporator. The affidavit of recording the articles of incorporation and payment of business capital was also executed by her and shows her to be a member of the new corporation’s board of directors. The last annual registration report filed by the corporation in 1952 represents that she was one of its directors. The above referred to corporation franchise tax reports prepared on Universal’s behalf for the years 1954, 1955, 1956, 1957 and 1959 all show her to be a director. On May 26, 1960 — only 15 days after Universal’s entry of appearance in bankruptcy proceedings — appellant Mary T. Cirese took steps to re-enter the trailer manufacturing and selling business. On the named date she, together with her husband, Joseph C. Cirese and their daughter, Lucille Tutera, executed articles of incorporation pursuant to which a new corporation was duly formed bearing the name “MJ Trail-Ette Manufacturing Co., Inc.”, with authority “to manufacture house trailers of all sizes; to sell at wholesale or retail house trailers of all sizes”.

It is our opinion that the facts and circumstances established by the foregoing records constitute substantial evidence which justified the jury in believing that appellant Mary T. Cirese was a director of Universal at the time its charter was forfeited, that she continued thereafter to have a participating interest in its business and that she thereby incurred the obligation upon which this action is founded. The trial court properly refused to direct a verdict in her favor.

Appellants’ last point assigns error by reason of the trial court’s denial of a motion for continuance filed by defendant Joseph C. Cirese on the first day of trial, after the case was called and counsel for plaintiff and defendants both had announced ready. The motion was grounded on allegations that movant’s physical condition was such that he could not participate in the trial, and that if he were able to attend he would testify that when Universal’s charter was forfeited he was not one of its stockholders or directors and took no part in its operation thereafter. The motion was supported by a physician’s letter to the effect that movant had a hypertensive situation “and other numerous difficulties of a medical kind”. The trial court’s view of the motion was expressed as follows: “Counsel is admonished that the case has been published for four weeks, that (during) the entire time of publication it has been pointed out that any application for continuance shall be ten days before the case is set. The condition described by the doctor in the letter is one that is referred to therein as having existed for some period of time. Under ail these circumstances the application for continuance is denied. The motion is overruled and the case will proceed to trial”. The ruling reflects the opinion of the trial court that movant was not diligent in seeking a continuance or observant of court rules governing an application therefor.

Appellants admit that the granting of a continuance is within the sound discretion of the trial court and cite three cases so holding, to wit: Brown v. Stroeter, Mo.App., 263 S.W.2d 458; Van Fleet v. Van Fleet, Mo.App., 253 S.W.2d 508; and Commercial National Bank of Kansas City, Kansas v. White, Mo.Sup., 254 S.W.2d 605. Appellants’ brief does not direct our attention to any facts which lead us to conclude that the trial court’s discretion in the matter was abused. It does state, however, that the alleged facts movant would have testified to were presented by another witness. We defer to the trial court’s discretionary ruling and hold that no error was thereby committed.

The judgment is affirmed.

All concur.


author: HOWARD, Judge.

text:
    Doris K. ROSE, Respondent, v. Ben ROSE, Ace Sod and Trees, Inc., and Rose Building and Construction Company, Inc., Appellants.
    No. 24342.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966.

      Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellants.
    Wilbur L. Pollard, North Kansas City, Williams, Norton & Pollard, North Kansas City, of counsel, for respondent.
   HOWARD, Judge.

This is an appeal by the defendants below from the action of the trial court in overruling a motion to set aside default judgment theretofore entered against defendants. Such judgment was for an amount within our jurisdiction.

On December 19, 1963, plaintiff filed her first amended petition in two counts seeking recovery of a balance due on a contract to sell real estate in count one and seeking to recover on a guarantee of such contract in count two. Defendants were Ben Rose, an individual, Rose Building and Construction Company, Inc., a corporation, and Ace Sod and Trees, Inc., a corporation. Each defendant filed separate answer on January 21, 1964. Thereafter on February 26, 1965, the then attorney for the defendants filed his formal withdrawal with the court. Thereafter on March 9, 1965, plaintiff announced ready for trial and the cause was set for March 15, 1965. On March 15, 1965, plaintiff appeared but defendants failed to appear and the cause was continued to April 5, 1965. Plaintiff appeared but again defendants failed to appear on April 5, 1965, and the cause was continued to April 8, 1965. On this last mentioned date plaintiff appeared, but defendants again failed to appear, and after plaintiff adduced evidence as to the amount of damage, the court entered judgment by default against the defendants in the amount of $2,373.48. The present attorney for defendants entered his appearance of record in this case on April 26, 1965. Defendants allege (it does not appear of record) that execution on such default judgment was issued and thereafter served on May 4, 1965.

On May 5, 1965, defendants filed their motion to set aside the default judgment. This motion was superseded by an amended motion to set aside judgment and motion to quash execution filed May 6, 1965. The first motion was verified, by the individual defendant Ben Rose, but the amended motion upon which the trial court acted was not verified. This motion set out some of the above procedural history of this case (with some discrepancy in dates); alleged the withdrawal of the previous attorney for the defendants, and that none of the defendants had notice of the trial setting for April 5, 1965, or of the setting and entry of default judgment on April 8, 1965. The motion alleges that the new attorney entered his appearance on April 23, 1965 (the record shows April 26, 1965), and alleges that such attorney had no notice of the judgment (which had theretofore been entered). The motion then states that the new attorney inquired of the clerk as to the date of the trial setting on this case, and was advised that a case styled “Rose vs. Ace Sod and Trees, Inc.” was set for trial on May 10, 1965; the attorney did not know that there were two distinct cases. The date of this inquiry is not specifically alleged in the motion, but it would appear to the writer that it occurred subsequent to the entry of the judgment on April 8, 1965. The motion then recites the issuance and service of execution and concludes with the following two paragraphs:

“9. That said judgment was secured through concealment, inadvertence and excusable neglect.
“10. That defendants have a meritorious defense to plaintiff’s cause of action.”

Our courts have repeatedly held that a motion to set aside a default judgment appeals to the discretion of the trial court; that this is a judicial discretion that can not be exercised in an arbitrary manner. Before a defendant is entitled to relief on appeal it must so clearly appear that the defendant had a good and sufficient reason for his default and that he has a meritorious defense to plaintiff’s cause of action, that the appellate court can conclude that the trial court abused its discretion and acted in an arbitrary manner in refusing to set aside the default judgment. None of these things appear from the motion in the case at bar. It does not appear that the previous attorney failed to notify defendants when he withdrew, as was true in Lewis v. VanHooser, 206 Mo.App. 618, 227 S.W. 618. Since it appears that the previous attorney withdrew not later than February 26, 1965, when such formal withdrawal was filed with the court, defendants clearly had adequate and reasonable time to secure new representation before the default judgment was entered April 8, 1965. Any inquiry made by the new attorney as to the date the case was set for trial and any confusion caused by the two similarly styled cases, could not excuse the -defendants’ default, because it appears that such inquiry was made subsequent to the entry of the default judgment (at least it does not affirmatively appear that the inquiry was prior to the default judgment).

As to the question of meritorious defense, none is set out in the motion. The motion merely pleads the conclusion “that defendants have a meritorious defense to plaintiff’s cause.of action”. This is not sufficient. It is necessary that facts showing such meritorious defense must be pleaded in the motion. As shown by Huffman v. Meriwether, Mo.App., 201 S.W.2d 469, the motion to set aside the default judgment must allege facts showing a defense which, if established, would be a valid defense to the merits of the cause pleaded in plaintiff’s petition. The conclusion pleaded in the motion filed in the case at bar completely fails to meet this requirement.

Furthermore, as heretofore noted the motion herein was not verified. No affidavits were served in connection therewith and the motion was submitted on argument of counsel, without the taking of any evidence. As pointed out in Gorzel v. Orlamander, Mo., 352 S.W.2d 675, such motions do not prove themselves; they must either be verified or be accompanied by affidavit, or be submitted together with evidence showing facts demonstrating the existence of a meritorious defense. This defendants have failed to do.

From the foregoing it is apparent that the defendants have failed to demonstrate that the trial court acted in an arbitrary manner, or abused its discretion, when it overruled defendants’ motion to set aside the default judgment. Defendants entirely failed to carry their burden and the trial court very properly found that there was no excuse for defendants’ default, and that no meritorious defense to plaintiff’s claim was shown.

In their brief defendants’ first point under points relied on is “The Respondent Was Not Entitled to a Judgment Under Her Own Evidence”. This point is wholly inadequate and fails to comply with the requirements of Civil Rule 83.05(e), V.A.M.R. Furthermore, the argument under this point appears to be a contention that the plaintiff can not have judgment because it was not affirmatively pleaded or proved that the contracts relied upon were in writing as required by the statute of frauds, and, further, that plaintiff’s cause of action sought to hold the individual defendant liable for the action of the corporation for which he acted. These matters were not mentioned in the motion to set aside the default judgment and are not before us for consideration. Further, this is an attempt to present issues which might properly be considered on an appeal from a judgment on the merits but which are not before us at present. We have, however, considered these contentions and find them to be without merit. The petition did not state whether or not the sales contract and guarantee were in writing. Under such circumstances they are presumed to be written, but such presumption is not conclusive and may be rebutted. See the many cases in 7A Missouri Digest, Contracts, «=333 (2).

Point Two of defendants’ brief claims that the court erred in entering judgment against Ben Rose and the Rose Building and Construction Company, Inc., because no judgment against them was properly prayed for in plaintiff’s petition. Again this matter was not mentioned in defendants’ motion in the trial court and is not before us for consideration. Further, even a cursory reading of the pleading reveals this contention to be without merit.

Point three of defendants’ brief contends that “The Trial Court Abused Its Discretion in Refusing to Set Aside the Judgment”. Again this point fails to comply with the requirement of Civil Rule 83.05 (e), but we have heretofore considered the arguments contained under this point and have ruled them against the defendants as indicated above.

The judgment of the trial court is therefore affirmed.

All concur.


text:
    KANSAS CITY, Missouri, Respondent, v. James L. FRANKLIN, Appellant.
    No. 24366.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966.

      Lee D. Seelig, Kansas City, for appellant.
    Herbert C. Hoffman, City Counselor, George L. DeBitetto, Asst. City Counselor, Kansas City, for respondent.
   HOWARD, Judge.

In this cause there was an attempt to charge the defendant below with the offense of driving while under the influence of intoxicating liquor. From a conviction in municipal court he appealed to the circuit court where he was again convicted. On appeal to this court the transcript does not contain any of the evidence presented below and the sole question for our consideration is whether or not there was a valid charge of violation of the applicable ordinance of the city of Kansas City, Missouri.

The charge is contained in what is labeled a “Missouri Uniform Traffic Ticket”. This is very similar to the uniform traffic ticket set out as a form in Civil Rule 37.1162. However, the traffic ticket used here has been rearranged and changed from the form provided in the rule. This traffic ticket is a printed form with certain spaces to be filled in and certain squares to be checked to indicate the offense with which the defendant is charged and to give certain other desired information. The transcript contains a copy of the ticket here in question. Although some of the printing and writing thereon is almost illegible, it appears that the following is a fair résumé of the charge attempted to be made by this ticket:

“IN THE MUNICIPAL COURT' OF KANSAS CITY, MISSOURI STATE OF MISSOURI, COUNTY OF JACKSON-CLAY-PLATTE y ss
“The undersigned peace officer complains and states that: On or about: 12-24-64 at or near (location): 5905 St. John, day of week: Thurs. at about (time) : 5:01 P.M. James L. Franklin (address): 6104 St. John city and state: K.C. Mo. driver’s license No.: FI80 5040 848 80 562 state: Mo. did unlawfully *[ (operate a vehicle) (walk) (park a vehicle)] within the city limits and then and there commit the following offense ** [speeding - disobeyed signal - disobeyed stopsign - improper turn - improper passing - improper lane use] Description of above or other violation: driving while under the influence of intoxicating liquor involved in violation of Ordinance No. 24239 as amended, Chapter 58 520A. Above complaint is true as I verily believe Ptl Dennis A. Gile. On information undersigned prosecutor complains and informs court that above facts are true as he verily believes. K. L. Gottschall assistant city coun-sellor.”

In the above quotation the matter appearing in italics is filled in with writing by the officer and the matter appearing in normal print is printed on the Missouri Uniform Traffic Ticket form.

The printed matter indicated within the brackets designated by one asterisk is specifically designed to give an officer a choice of allegations that the defendant did “operate a vehicle” or "walk” or “park a vehicle”. No such designation is made on this ticket. The printed matter enclosed by the brackets indicated by two asterisks gives a choice of six different offenses to be indicated by check marks placed in boxes appearing on the ticket for each such violation. No check mark appears on this ticket in these spaces and thus none of these six possible violations are alleged.

The words “driving while under the influence of intoxicating liquor involved” appear in a box or space on the ticket at the top of which is printed the instruction: “Description of above or other violation”. Since the ticket did not indicate in the appropriate place whether the defendant was operating a vehicle or walking or parking a vehicle and since the ticket did not indicate a violation of any of the six listed violations by appropriate check mark, we are limited to the words written in the space headed, “Description of above or other violation” for all of the charge against this defendant. Thus, from the words “driving while under the influence of intoxicating liquor involved”, we must find all of the allegations necessary to properly charge a violation of the ordinances involved.

The words “while under the influence of intoxicating liquor” would seem to describe defendant’s condition and would not leave any question. We are therefore left to a determination of the meaning and sufficiency of the words “driving” and “involved” as these words relate to the ordinances in question. Various omissions in the preceding part of the ticket add difficulty to this determination.

Section 58.010 of the Revised Ordinances of Kansas City, Missouri contains definitions of terms used in chapter 58. Among the definitions are the following: “Railroad train. — A steam engine, electric or other motor, with or without cars coupled thereto, operated upon rails.” “Vehicle. — Every device in, upon or by which any person or property is or may be transported or drawn upon a public street, except devices moved by human power or used exclusively upon stationary rails or tracks.” Section 58.620 (a) provides as follows: “No person who is under the influence of intoxicating liquor shall drive or be in actual physical control of any vehicle or railroad train.”

We might point out here that as shown in the above quotation from the ticket the defendant is charged with a violation of Ordinance No. 24329 Chapter 58.620A. The above quoted prohibition against driving a vehicle while under the influence of intoxicating liquor (Section 58.620) was enacted as a part of Ordinance No. 30154, effective July 24, 1964. It is noted that Ordinance No. 24329 which the defendant is charged with violating became effective March 4, 1960, and apparently was superseded in that part pertaining to driving while under the influence of intoxicating liquor by Ordinance No. 30154 effective July 24, 1964. Since the offense is alleged to have occurred on or about December 24, 1964, it is apparent that this later ordinance was in effect at the time of the offense and that the former ordinance quoted in the ticket was not applicable at that time. We do not rest our decision on this discrepancy in the citation of the ordinance, but mention it for the purpose of showing the difficulty and confusion to be encountered by any one who attempts to determine what the defendant is, in fact, charged with.

Section 58.620(a) prohibits any one who is under the influence of intoxicating liquor from driving or being in actual physical control of any vehicle or railroad train. Although the city in its brief herein contends that the ticket charges the defendant with operating a vehicle, the officer who made out the ticket expressly refrained from so designating in the appropriate place as stated above. The ticket charges the defendant was “driving”, but it does not say what he was driving. The ordinance covers both a “vehicle” and a “railroad train” but if defendant was driving anything else it is not prohibited by this ordinance. Thus the charge is ambiguous to say the least. Further, anything which would otherwise be a vehicle is excluded from the definition of a “vehicle” when “it is moved by human power”. Thus, if defendant were driving a bicycle, or any other device moved by human power, he would not be guilty of operating a vehicle in violation of Section 58.-620(a). Likewise, the definition of a vehicle does not include a herd of animals or many other things to which the word “driving” might logically and grammatically be applied.

The city in its brief contends that another section of the ticket indicates that defendant should reasonably know that he was charged with operating a vehicle instead of a railroad train. This is based on two check marks indicating information concerning the incident. They appear in a box which is designated on the ticket “CONDITIONS THAT INCREASED SERIOUSNESS OF VIOLATION” and, within that general heading they are designed to indicate that defendant was involved “in accident” with a “vehicle” instead of a “pedestrian” and that the “accident” was a “sideswipe”. This would only indicate that the defendant was involved in a sideswiping accident with a vehicle. This could apply whether defendant was driving a vehicle or a bicycle or a railroad train or any other device or thing. It furnishes no help in determining the sufficiency of the charge against defendant. It forms no part of the charge.

Thus the use of the word “driving” does not clearly and precisely charge defendant with the commission of an act which is prohibited by the ordinance. On the contrary, the use of the word “driving” standing alone as it does, conveys only an uncertain and ambiguous meaning.

The use of the word “involved” at the tag end of the phrase “driving while under the influence of intoxicating liquor involved” written on the ticket adds further obscurity and ambiguity. When one reaches this word in his reading he is brought up short. The intent and meaning of the preceding words are made doubtful and obscure. While the city contends that the use of the preceding words constitute an unambiguous and definite primary charge against the defendant, the use of the word “involved” creates a possible connotation that the words which immediately precede it are in fact merely subsidiary and ancillary to another independent primary charge against the defendant. Thus if the defendant had been properly charged with speeding at the appropriate place on the ticket the words we are here considering might, quite naturally, have been recorded in the same manner to show a matter in aggravation and to preserve the fact for evidentiary use at the trial on the primary charge. The word is not grammatically appropriate if this is in fact intended to be a primary and independent charge, it only detracts from and injects confusion into the meaning of the words which precede it. It creates doubt as to the intent of the complaining officer who wrote the ticket and the assistant city coun-sellor who formalized the charge by his endorsement.

The city contends that this word “involved” is mere surplusage and should be ignored. The word, by its very inappropriateness sticks out like a sore thumb; it can not be ignored. We must resolve the doubts and ambiguities it creates.

We must remember that the charge of a violation of a city ordinance, even though it be a matter civil and not criminal in nature, must allege all of the facts necessary to show such violation. In our case the charge must allege facts constituting an act prohibited by Section 58.-620(a). Unless such facts are alleged, no valid charge is made. See City of St. Louis v. Flynn, Mo., 386 S.W.2d 44; Kansas City v. Wiskur, Mo.App., 343 S.W.2d 89; State of Missouri v. McCloud, Mo.App., 313 S.W.2d 177. The requirements which a charge of violating a city ordinance must meet are clearly and cogently set out in City of Raytown v. Roach, Mo.App., 360 S.W.2d 741. This case is particularly appropriate since it involved a charge made by use of a “Missouri Uniform Traffic Ticket”. We adopt the reasoning and conclusions of this case and quote them without further discussion. It was there said, 1. c. 742:

“Prosecutions for violation of municipal ordinances are regarded as civil actions, although it has been said that they have quasi criminal aspects. City of St. Louis v. Pope, Mo.App., 129 S.W.2d 106; City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935. Hence, our courts have consistently held that the sufficiency of the complaint in such cases is to be determined by the same rules that are applicable in other civil actions. Kansas City v. Wiskur, Mo. App., 343 S.W.2d 89; Ex parte Corvey, 220 Mo.App. 602, 287 S.W. 879. More to the point — Missouri courts have recognized and adhered to the general rule that the complaint must specifically allege the facts which amount to the offense defined and forbidden by the ordinance. City of St. Louis v. Polar Wave Ice & Fuel Co., 317 Mo. 907, 296 S.W. 993, 54 A.L.R. 1082. Or, as conversely stated in Kansas City, Missouri v. Wiskur, supra, ‘ * * * there can be no doubt but that the rule is that an information charging violation of an ordinance without specifically alleging facts amounting to violation is insufficient.’ This general rule, developed by court decision and rules of civil procedure, has been supplemented by Rule 37.18 of the Missouri Rules of Practice and Procedure in Municipal and Traffic Courts, V.A.M.R., as promulgated by the Supreme Court, which declares that ‘The information or complaint shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.’ We observe no disparity between the general rule and Rule 37.18. The latter is essentially a codification of the former.
“There is good reason to require of an information or complaint in a city prosecution that it contain specific allegations of the facts constituting the particular acts charged against the defendant. The primary purpose of such a pleading (as can be said of the petition in any civil action) is to inform the defendant of the nature of the action lodged against him in order that he may defend against it. A further office of the pleading is to furnish a basis for an orderly trial and the rendition of a judgment, and to bar another prosecution for the same offense. De Mott v. Great American Insurance Co. of New York, 234 Mo.App. 31, 131 S.W.2d 64; City of St. Louis v. Stubley, Mo.App., 154 S.W.2d 407.”

It might be contended that in this day and age and in view of our automotive society, that the failure to specifically allege what the defendant was “driving” did not constitute a fatal defect because the use of the word “driving” alone carries with it a connotation that he was driving an automobile. This might be said to be a reasonable conclusion from everyday experience and it might, in fact, be true in 999 cases out of a 1000 but even such elementary allegations are necessary when they are so basic to the charge. Thus in State v. Bartlett, Mo. App., 394 S.W.2d 434, the Springfield Court of Appeals was considering an information which attempted to charge defendant with speeding. It was therein alleged that the defendant operated a 1962 Mercury at speeds up to 85 mph. However, it did not allege that such operation was on a highway. The court held that such allegation could not be inferred; that it was fundamental and necessary to a valid charge and that the information was fatally defective without such allegation.

In the case at bar the ticket charges that defendant, somewhere in the neighborhood of 5905 St. John, was driving something unknown while under the influence of intoxicating liquor “involved”. The prohibition contained in Section 58.620(a), supra, applies only to one who is driving a vehicle or a railroad train. It is not alleged that defendant was driving either. At best the use of the word “involved”, creates an ambiguity or uncertainty as to whether or not defendant is charged with performing some act while under the influence of intoxicating liquor within the prohibition of such section. At worst the use of this word negatives the charging effect of the words “while under the influence of intoxicating liquor” and converts them into a mere recital of an evidentiary fact incident to some other (unexpressed) primary charge.

For these reasons we conclude that the traffic ticket here considered does not constitute “a plain, concise and definite written statement of the essential facts constituting the offense charged” as required by Civil Rule 37.18, V.A.M.R., and the case law referred to above. The judgment of conviction entered by the trial court is therefore reversed and the defendant discharged.

All concur.


author: MAUGHMER, Commissioner.

text:
    NATIONAL CREDIT ASSOCIATES, INC., Assignee of Dr. J. C. Bolin, and Dr. J. C. Bolin, Plaintiffs-Respondents, v. Jessee TINKER and Marjorie B. Tinker, Defendants-Appellants.
    No. 24374.
    Kansas City Court of Appeals. Missouri.
    Feb. 7, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966.

      Elwyn L. Cady, Jr., Kansas City, for appellants.
    Darrell Havener, Robert C. Canfield, Kansas City, Watson, Ess, Marshall & Eng-gas, Kansas City, of counsel, for Dr. J. C. Bolin.
   MAUGHMER, Commissioner.

The decisive issue here is whether or not a patient’s suit for damages, alleging fraud in the prescription and application of professional treatment by her physician and commenced more than two years after the date of the last treatment, is barred under the Statute of Limitations requiring suits for malpractice to be brought within two years “ * * * from the date of the act of neglect complained of.”

The parties include the patient, Mrs. Marjorie B. Tinker, who is described in most of the pleadings as “Roberta Tinker”. However, she filed a motion asserting that her correct name was “Marjorie” and asking that “Marjorie B. Tinker” be substituted for “Roberta Tinker”. This motion was never ruled by the trial court but we shall sustain it and shall refer to her in this opinion as “Marjorie”. The other participants are her husband Jessee Tinker, Dr. J. C. Bolin, D.O., and National Credit Associates, Inc., As-signee of Dr. J. C. Bolin.

The defendant Marjorie B. Tinker was a patient of Dr. J. C. Bolin, an osteopathic physician from January until June, 1960. She received professional treatments from him during this period. The pleadings assert and defendants Marjorie and Jessee in their briefs admit that the treatments were administered during these dates, and that the last treatment was rendered during June, 1960. We are unable to determine from the transcript (no testimony was adduced) or from the briefs what disability or disease Marjorie was suffering from or what kind of treatments were given. Dr. Bolin’s charge for these services was $324, no part of which has been paid. In November, 1960, Dr. Bolin assigned the account to the plaintiff National Credit Associates, Inc. “for collection”.

On October 19, 1963, National filed suit on the account against Marjorie Tinker and her husband Jessee Tinker in the magistrate court of Jackson County, Missouri. On November 19, 1963, more than 40 months after the date of the last treatment, the defendants Tinker filed their answer, setoff and counterclaim. Therein they alleged:

“That said Dr. J. C. Bolin represented to Jessie B. Tinker and Marjorie B. Tinker that the particular type of treatment he was capable to performing would relieve the condition of ill being suffered by said Marjorie B. Tinker; that he made such representation with knowledge of its falsity; that Jessie B. and Marjorie B. Tinker relied on such representation; and that as a direct result there was a substantial delay in securing proper professional attention for said Marjorie B. Tinker.
“That as a direct result of the misrepresentation whatever services performed by Dr. Bolin were rendered worthless and amounted to only legal harm.
“That as a result of said representation, said Marjorie B. Tinker was caused to suffer severe pain and mental anguish and required rehabilitative professional treatment with the expenditure of substantial sums.”

The prayer was for damages in the sum of $12,000 against Dr. Bolin.

Defendants caused this pleading, with summons, to be served on Dr. Bolin, asserting that he was the “real party in interest.” Thereupon the magistrate court transferred the case to the circuit court as the amount then involved exceeded its jurisdiction. The circuit court sustained defendant Bo-lin’s motion to dismiss the counterclaim and remanded the cause to the magistrate court. The defendants have appealed.

Both parties in their briefs agree that “ * * * the real controlling issue in this case is the statute of limitations”; that is, was the counterclaim timely filed or was it barred under the statute? Chapter 516, V.A.M.S., Statutes of Limitations, is general and provides numerous limitations periods for various actions.

“ * * * statutes of limitation are statutes of repose enacted for the purpose of preventing the assertion of stale claims.” 53 C.J.S. Limitations of Actions § 1, p. 902; Thatcher v. DeTar, 351 Mo. 603, 173 S.W.2d 760, 761.
“It may be stated as a sound general proposition that a cause of action accrues the moment the right to commence an action comes into existence, and the statute of limitations commences to run from that time.” 34 Am.Jur. p. 92; Coleman v. Kansas City, 353 Mo. 150, 182 S.W.2d 74, 78.
“Statutes of limitation are favored in the law, and cannot be avoided unless the party seeking to do so brings himself strictly within some exception.” Shelby County v. Bragg, 135 Mo. 291, 36 S.W. 600, 602, Hunter v. Hunter, Mo., 237 S.W.2d 100, 104.

There are two sections in Chapter 516, supra, which must be considered in the matter before us. Section 516.140 provides in part:

“Within two years: An action for libel, slander, assault, battery, false imprisonment or criminal conversation. All actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitariums for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of, * * * ”.

Section 516.120 provides in part:

“Within five years:
“(1) All actions upon contracts, obligations or liabilities, express or implied,
“(4) An action for taking, detaining or injuring any goods or chattels, including actions for the recovery of specific personal property, or for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated;
“(5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud”.

It is the contention of respondent Bolin that the counterclaim asserted against him by the Tinkers is barred under the two-year statute. It is the contention of Mr. and Mrs. Tinker, the appellants, that their claim is an action for fraud and is restricted only by the limitation of five years as provided in Section 516.120(5). Additionally, they contend that they did not discover the alleged fraud or malpractice until less than two years before the counterclaim was filed and hence the action did not accrue more than two years prior to the date on which suit was filed.

Counsel have cited no Missouri cases, applying either the two or the five-year statute, where a claimant specifically pleaded fraud against a physician in the rendering of professional services. We have found no such Missouri case. However, efforts have been made to bypass the two-year statute and bring actions against physicians under other parts of the five-year statute.

In Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029, 1030, 1031, the petition alleged that the defendant physician diagnosed plaintiff’s condition as diseased gall bladder and “contracted and agreed” to remove her gall bladder, but instead cut wounds in plaintiff’s back “under pretense of lifting one of the kidneys”. The petition charged breach of contract and it was asserted that the action was not one asking damages for malpractice, but an action ex contractu for breach of an express contract and that therefore the five-year statute under which causes of actions for breach of contract may be brought was applicable rather than the two-year limitation for malpractice suits. The court said:

“We think it is obvious that, though the petition in the instant case alleges an express contract between the parties, the gravamen or gist of the action is defendant’s wrongful act. Canaday v. United Rys. Co., 134 Mo.App. 282, 114 S.W. 88; Hales v. Raines, 162 Mo.App. 46-62, 141 S.W. 917-921; Marty v. Somers, 35 Cal.App. 182, 169 P. 411. The statute invoked is a bar to all actions against physicians and surgeons for damages for malpractice, error, or mistake not brought within two years from the date of the act complained of. The limitation is not determined by the form of the action, but by its object. The improper performance by a physician or surgeon of the duties devolved and incumbent upon him and the services undertaken by him, whether same be said to be under a contractual relationship with the patient arising out of either an express or implied contract or the obligation imposed by law under a consensual relationship, whereby the patient is injured in body and health, is malpractice, and any action for damages, regardless of the form thereof, based upon such improper act, comes within the inhibition of the two-year statute of limitation.” (Italics supplied.)

This statement was approved later by the Supreme Court in Baysinger v. Hanser, 355 Mo. 1042, 199 S.W.2d 644, 647.

The Barnhoff case is the subject of an annotation in 74 A.L.R. 1252. In the general discussion and with reference to the only case referred to under allegations of fraud, we find the following on pp. 1264 and 1265:

“A complaint alleging that, by reason of defendant’s carelessness in extracting plaintiff’s teeth, one of the same went down plaintiff’s throat and lodged in her lung, that defendant fraudulently concealed such fact, and that, by reason of the negligence and fraudulent concealment, plaintiff sustained great bodily injury, was held in Tulloch v. Haselo (1926) 218 App.Div. 313, 218 N.Y.Supp. 139, to state a cause of action within the Statute of Limitations governing malpractice causes rather than the limitation period applicable to actions for fraud. The opinion states: ‘In the case at bar the direct cause of plaintiff’s damage was the carelessness and negligence in permitting the tooth to fall down plaintiff’s throat. The subsequent concealment of such negligent act may have aggravated the original wrong, hut simply as a circumstance in the chain of events leading from thé original carelessness, presumably adding to the damages which resulted therefrom. The concealment alleged is not the wrong which must be made the gravamen of an “action to procure a judgment on the ground of fraud”, within Civil Practice Act, Sec. 48. * * * It was malpractice that was the proximate cause of the injury which the plaintiff sustained. The relation of dentist and patient made it malpractice. The failure to speak and to disclose his negligent act was a breach of duty which constituted malpractice’ ”. (Italics ours.)

In Horowitz v. Bogart, 218 App.Div. 158, 217 N.Y.S. 881, 882, plaintiff was suffering from a duodenal ulcer. His petition alleged defendant agreed to perform a surgical operation for removal of the ulcer but failed to do so and instead removed his appendix. The New York statute required an action for malpractice to be “commenced within two years after the cause of action has accrued”. The suit was commenced more than two years after the operation. The court said:

“The sole question before the court is whether the complaint sets forth a cause of action for breach of contract or one for malpractice. If the latter, it is conceded that the defendant’s motion to dismiss should have been granted.
“While, in the complaint now under consideration, neither lack of skill nor negligence is charged, the basis of the charge is ‘improper performance of the work to the personal injury of the plaintiff’ ”.

The court applied the two-year statute and dismissed the petition.

In Hellebrand v. Hoctor, 331 F.2d 453, 455, plaintiff sued the defendant doctor who was Superintendent of Missouri State Hospital No. 4, for false imprisonment and assault through the administration of shock treatments. Plaintiff was under a Michigan probate court guardianship. He sought to avoid the two-year limitation statute against physicians through the tolling provisions of Section 516.170 V.A.M.S. for insane persons. The United States Court of Appeals, Eighth Circuit, applied both of these statutes strictly and said:

“ * * * it is the law of the State of Missouri that the running of that statute (Sec. 516.140) cannot be tolled because of fraud, concealment, or any other improper act not provided in the statute, itself.” (Italics added.)

The case of Thatcher v. DeTar, supra, is the subject of review in 9 Mo. Law Review, p. 102. In that case the defendant doctor negligently permitted a surgical needle to remain in plaintiff’s body following a removal of his appendix in August, 1937, but continued to treat the plaintiff until August, 1939, when plaintiff obtained the services of other physicians who performed another operation in September, 1940, at which time plaintiff learned for the first time that his pain and disability were due to and caused by the presence of the needle. His petition charged the defendant with negligence. The trial court sustained defendant’s demurrer on the theory that the two-year statute of limitations commenced to run in August, 1937, when the operation was performed. On appeal the Supreme Court ruled that the statute did not begin to run until October, 1939, the last date upon which defendant treated plaintiff and closed its opinion with this statement:

“An examination of the cases convinces us that the overwhelming weight of authority is that where the facts are as disclosed in plaintiff’s petition the statute of limitations does not begin to run until the treatment of plaintiff’s ailment by the defendant ceases. That conclusion is in harmony with our legislative expression on the subject, as illustrated by the statutes above quoted, and also in harmony with the overwhelming weight of authority.”

It is noted that the Missouri statute requires that the action “be brought within two years from the date of the act of neglect complained of ⅜ ⅜ whereas the New York statute reads: “within two years after the cause of action has accrued”. Conceivably, it might be argued that a cause does not accrue until the injury or negligence or malpractice was, or should have been discovered, but it seems clear that “the date of the act complained of” can only mean the date of the last treatment. Whether such a limitation is wise or fair or just is for the Legislature to decide.

We believe that the gist of the appellants’ action is respondent doctor’s wrongful acts or treatments — it is malpractice. The only relationship between the parties was that of patient and doctor. The applicable limitation cannot be determined by the form of the action alone and where the gravamen of the action is the defendant’s improper, careless, negligent or wrongful acts as a physician, a petition for damages which in form alleges breach of contract or fraud will not result in bypassing the plain limitation which the Legislature has fixed for malpractice suits. Our Missouri court rulings, which are in line with the majority view, are that the statute begins to run on the date when the last treatment was completed.

We believe that appellants’ counterclaim states only a cause of action for malpractice. It was not commenced until more than forty months after the date of the last treatment, on which date the cause of action accrued. Section 516.140, supra, is applicable and the action was barred unless commenced within two years after June, 1960, the date of the last treatment. It was not commenced until November, 1963. The trial court was correct in dismissing appellants’ counterclaim.

Our conclusion on the limitation feature disposes of this appeal. It is not, therefore, necessary to determine whether or not Dr. J. C. Bolin is the “real party in interest” or if he was effectively joined as a party to the suit.

The judgment is affirmed.

SPERRY, C., concurs.

The foregoing opinion by MAUGHMER, C., is adopted as the opinion of the Court.

All concur.