text:
    TIME PLANS, INC., a Corporation, Appellant, v. WORNALL BANK, a Corporation, and Carl Goodhue and Mrs. Carl Goodhue, Respondents.
    No. 24636.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.
    Motion for Rehearing and/or Trasfer to Supreme Court Denied Oct. 2, 1967.
    Application to Transfer Denied Nov. 13, 1967.
    John R. Whitsitt, Kansas City, for appellant.

      Donald K. Hoel, Kansas City, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, of counsel, for Wornall Bank, respondent.
    Shockley, Reid & Koger, by Jim T. Reid, Kansas City, for Carl Goodhue and Mrs. Carl Goodhue, respondents.
   MAUGHMER, Commissioner.

Plaintiff’s suit for damages, both actual and punitive, is in two counts. Count I is based upon alleged conspiracy and Count II upon conversion. After the evidence had been heard the court directed a verdict for defendants on both counts. Plaintiff has duly appealed. The amount of recovery sought was $5,808 actual and $5,000 as punitive damages. Therefore appellate jurisdiction rests with this court.

The present controversy grew out of various transactions concerning a Ferrari automobile. Ferrari automobiles are built by an Italian corporation, are sports or racing cars, and are prized chiefly by those interested in antique vehicles.

The plaintiff, Times Plans, Inc., is an automobile finance company domiciled in Missouri and located in Kansas City. The defendant Wornall Bank is a general banking institution in Kansas City, Missouri. The other defendants, Carl and Mrs. Carl Goodhue, are individuals living in this city.

We shall endeavor to present the pertinent facts in chronological order. Mr. Goodhue is a school teacher, who had a hobby of buying, rebuilding and selling used automobiles, especially those of the antique or classic types. For many years he had been a customer and borrower at the Wornall Bank. In the fall of 1961, he read in an automobile magazine that a Ferrari (described as a 1954 model) was being offered for sale by a Mr. C. B. Johnson, who lived in Colorado. He communicated with Mr. Johnson, met him in Sterling, Kansas, and on October 14, 1961, bought the Ferrari and received an assignment of the Colorado title. Mr. Goodhue testified that he “misplaced the title”, but he got in touch with the seller, who procured and transmitted to him a duplicate Colorado title. Mr. Goodhue later located the original title. The Colorado certificate described the vehicle as a Ferrari, 1952, Model 340, a roadster, with Motor #0140 A.

On November 3, 1961, Mr. Goodhue signed a chattel mortgage for a debt of $2,-819.04 to the Wornall Bank covering a 1959 Opel, a 1955 Plymouth, and this Ferrari, but therein described it as a 1954 Ferrari, Motor #0140A. This mortgage was never recorded or filed and bears the stamp mark “canceled by renewal”. Thereafter Mr. Good-hue arranged to sell the Plymouth and purchase a 1959 Chevrolet. He again financed through the Wornall Bank and on February 7, 1962, executed to that institution a new chattel mortgage, which covered the 1959 Opel, the recently purchased 1959 Chevrolet and the Ferrari, which was again identified as a 1954 Ferrari, Motor #0140A. The indebtedness on this occasion was $3,674.88. Plaintiff in its brief says this particular mortgage was never filed in the office of the Recorder in Kansas City, Missouri, but that it was filed in the Recorder’s office in Independence, Missouri on July 17, 1963. Both of these cities are in Jackson County, Missouri. The certificate attached to the exhibit (photostat of the chattel mortgage) states that it was so filed on July 17, 1963, but there appears further on the exhibit the following stamp:

“Filed this day and date
Feb. 12, 1962, 10 A.M.
Nathan Scarritt, Recorder
By Peg Allen, Deputy”.

The next occurrence was the sale of the Ferrari by Mr. Goodhue to a Mr. Wayne Joplin, a resident of Oklahoma. The Colorado certificate of title, executed in blank by C. B. Johnson was delivered to Mr. Joplin by Mr. Goodhue, thereby “jumping” himself in the chain of title. It did not list any indebtedness as outstanding against the automobile. The Wornall Bank was unwilling to release Goodhue on the obligation even though the new purchaser, Wayne Joplin, assumed it in full. There is some dispute as to just what Mr. Joplin paid for the Ferrari, but it was sold and delivered to him. There was introduced in evidence a third chattel mortgage to Wornall Bank with promissory note attached for $3,674.88 and covering a 1952 Ferrari, Motor #0140A, with both the promissory note and the chattel mortgage purporting to be signed by C. D. Goodhue and Wayne Joplin. Mr. Goodhue testified that they both signed it. Mr. Joplin testified that he did not sign it although “it looked like his signature” and he admitted making 10 or 11 monthly payments of $153.12 each to the Wornall Bank on this indebtedness. This chattel mortgage was never filed of record.

Thereafter, on September 4, 1962, the State of Oklahoma issued to Mr. Wayne Joplin a certificate of title to a “1961 Ferrari roadster, Motor #0140A”. Mr. Joplin testified that he procured this 1961 certificate by filing the 1952 Colorado certificate and some affidavits certifying as to repair and replacement work which had been done on the automobile. Then on December 14, 1962, Wayne Joplin signed a promissory note and chattel mortgage in favor of plaintiff Time Plans, Inc. for the sum of $6,336, and covering a 1961 Ferrari, Motor #0140A. He used the Oklahoma title certificate describing a 1961 Ferrari to procure this loan. Mr. Joplin made some payments on this indebtedness but at the time suit was filed, the sum of $5,808 was still due. This is the sum named by plaintiff in the petition as its actual damages. This mortgage was filed in Oklahoma City and in Benton County, Missouri, where Joplin said he lived.

After making eleven payments (Wornall Bank records show this) Mr. Joplin’s check for the twelfth payment was returned marked “Insufficient funds” and Wornall Bank called on Goodhue for payment. The defendants, Mr. and Mrs. Goodhue “took up” or paid off the balance of this debt by refinancing and pledging other and additional collateral on May 15, 1963. The Wornall Bank thereupon assigned the original note and mortgage, purportedly signed by Goodhue and Joplin, to the defendant Mrs. Carl Goodhue and disclaims any interest whatever in the matter after May 15, 1963.

After the assignment of the chattel mortgage and note to her, Mrs. Goodhue instituted a replevin action in Jackson County, Missouri to recover possession of the Ferrari. Aided by officials of Wornall Bank, who had contacts with automobile “locaters”, the Ferrari was located in Mangum, Oklahoma. Mr. Goodhue went there, repossessed the vehicle and returned it to Missouri. He testified that its transmission was out, it had a bullet hole in it and the cylinder head was cracked; that he spent $1500 and his time in making repairs, procured a repossessed certificate of title from the State of Missouri, and then sold the Ferrari for approximately $1800. It is undisputed that all of these transactions had to do with one and the same Ferrari automobile, Motor # 0140A. The Colorado title was for a 1952 Ferrari. This particular model was not built after 1954. It could not have been a 1961 product. It is really undisputed that the automobile was a 1952 model, even though it is sometimes referred to as a 1952, 1954 and 1961 Ferrari.

Mr. Dee White, Vice-President of the Wornall Bank, Mr. Hughes Barton, President, and Mr. R. M. Welton, Vice-President of Time Plans, Inc. testified as to the factual occurrences just related. Mr. Barton and Mr. White had telephone conversations about these matters during May, June and July of 1963. At that time each knew of the other’s mortgage. White advised that the Ferrari had been located in Oklahoma and asked Barton to join in criminal proceedings against Wayne Joplin. Barton refused. Barton said his company paid one-half of the $50 paid to the Oklahoma sheriff for his help in the recovery, and that White promised to make the car available to plaintiff after it' had been repossessed. In August, 1963, Mr. White told plaintiff’s officers that the Wornall Bank was no longer concerned in the matter; that plaintiff had not cooperated, and that he, Mr. White, would furnish no further information. Mr. Welton testified that he told Mr. White that plaintiff wanted its debt balance of $5,808, or wanted possession of the automobile, and were expecting one or the other from the Wornall Bank. He said Mr. White finally told him: “The hell with you”. Mr. Welton testified further that they “tried to contact Mr. Goodhue” and that Mr. Goodhue finally called him by telephone. He said Mr. Goodhue stated that “he did have the automobile, but wouldn’t tell us where it was and stated that he had a clear title”. Mr. Goodhue testified that he sold the car to Wayne Joplin for $3500; that after he repossessed it in Oklahoma he spent $1500 in repair and then sold it for $1800. Plaintiff has never instituted any legal proceedings to (1) recover possession of the Ferrari or (2) except for the instant suit, any action to recover damages or relief of any kind.

Count I of plaintiff’s petition alleges: Goodhue failed to register the Colorado title in Missouri; Wornall Bank procured a chattel mortgage, well .knowing Goodhue had no valid certificate of title; Wornall Bank allowed and required Wayne Joplin to alter the note and mortgage by adding his name thereto; Mrs. Goodhue filed a replev-in suit, alleging she was owner of the said note and mortgage, and said Wornall Bank cooperated and conspired with the Goodhues in all of these things for the purpose of hindering and defrauding plaintiff out of its lawful rights under its chattel mortgage. Plaintiff and all defendants on July 24, 1963, located said Ferrari in Oklahoma and Wornall informed plaintiff the automobile would be made available to plaintiff; all three defendants, acting in concert, concealed said Ferrari from plaintiff with intent to defraud plaintiff although plaintiff has demanded possession; defendants falsely and fraudulently tried to obtain a duplicate Oklahoma title and by all of these acts hindered, delayed, defrauded and deceived plaintiff to its damage in the sum of $5,808; (amount still due on the Wayne Joplin note) and $5,000 punitive damages. Plaintiff’s second count alleged that the Ferrari came into possession of all three defendants on July 27, 1963, and defendants converted same to their use, all in violation of plaintiff’s rights.

At the close of the evidence counsel for plaintiff, in response to an inquiry from the court, said it wanted to submit the case on the second count of the petition. Did such request result in abandonment of Count I? In White v. Kansas City Public Service Co., 239 Mo.App. 571, 193 S.W.2d 60, 63, this court said:

“It is true if plaintiff alleges several grounds of negligence and then instructs on only one, all others are abandoned; and if the evidence does not support the ground of negligence submitted, then a general demurrer, at the close of the case, will raise that issue”.

And in Bean v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 782, 785:

“Such is not the law,, for when the plaintiff elected to submit his case solely upon the humanitarian theory he abandoned the other allegations of negligence contained in his petition”.

This rule of law seems to dispose of Count I of the petition and results in affirming the action of the trial court in directing a verdict for all defendants as to Count I. We observe, too, that the burden is upon plaintiff to establish conspiracy and we doubt if there was substantial evidence adduced showing conspiracy as to these defendants. In its brief plaintiff makes this comment: “It is the position of appellant that Count I adds very little to its cause of action”.

Count II of the petition asserts: (1) from and after April 14, 1963, plaintiff was enti-tied to possession of the Ferrari; (2) on July 27, 1963, the Ferrari, then reasonably worth $5,808, came into the possession of the defendants who converted same to their own use, all to plaintiff’s actual damage in the sum of $5,808; (3) defendants’ acts were wanton and malicious and plaintiff is entitled to $5,000 punitive damages.

The defendant Wornall Bank closed out its interest in the whole matter on May 15, 1963,' when it transferred its mortgage coverage on the Ferrari to Mrs. Carl Goodhue in consideration of a new note and chattel mortgage signed by Mr. and Mrs. Goodhue and pledging additional and other collateral.

Among others, plaintiff invites our attention to the following cases: To Jordan v. Ebert, Mo.App., 387 S.W.2d 255, 257, where the court enumerated the essential elements necessary to make a submissible case for conversion, saying:

“Plaintiff, to make a submissible case for conversion, was required to present evidence (1) of his possession or right to possession at the time of the alleged conversion or an ownership which carries with it the right to immediate possession. Brede Decorating, Inc. v. Jefferson Bank and Trust Co., Mo., 345 S.W.2d 156, 164; (2) of the taking of the property of plaintiff against his will and in open defiance of plaintiff’s ownership and right of possession. Detmer v. Miller, Mo.App., 220 S.W.2d 739, 745; Davis v. Nash Central Motors, Mo.App., 332 S.W.2d 475, 480, and (3) damages resulting from the act or acts of conversion”.

In this Jordan case plaintiff presented evidence that he was the actual owner and was divested of possession by defendant through threats.

To German-American Bank v. Brunswig, 107 Mo.App. 401, 81 S.W. 461, 462, and this quotation by approval from that opinion:

“ ‘A conversion may be proved in either of three ways: (1) By tortious taking; (2) by any use, or appropriation to the use, of the person in possession, indicating a claim of right in opposition to the rights of the owner; (3) by a refusal to give up possession to the owner on demand. * * * The idea of property is of the essence of a conversion’. Nanson v. Jacob, 93 Mo. 331, 340, 6 S.W. 246, 3 Am.St.Rep. 531”.

The court in this case also quoted with approval the following:

“ ‘To sustain the action, there must be title in the plaintiff and an actual conversion by the defendant. “If either of these elements is wanting, the action will not lie” ’. 2 Cook on Corp. (4th Ed.) § 576, and other authorities cited under point 3”.

And from Edlen v. Tweed, Mo.App., 295 S.W.2d 397, 402:

“A person in possession of the personal property of another is guilty of conversion when he makes an unfounded claim or assertion of ownership or title thereto, inconsistent with and exclusive of the owner’s rights therein”.

As to the defendant Wornall Bank it never had possession of the Ferrari. It assigned and sold for a valid consideration its mortgage and promissory note to Mrs. Goodhue. In its pleading plaintiff says it was entitled to possession at all times after April 14, 1963. Defendant Wornall Bank has disclaimed any interest in the matter after May 15, 1963. Thereafter plaintiff learned that Goodhue had possession but took no action looking toward recovery. There is no evidence whatever that the Wornall Bank committed conversion of the Ferrari. Therefore the court properly sustained the motion for directed verdict as to it.

We quote from 89 C.J.S. Trover and Conversion, §§ 3, 117, pages 533 and 610:

“Conversion is a tort, a wrongful act, which in the nature of things cannot spring from the exercise of a legal right. The law of conversion, it has been said, is concerned with possession, not title, conversion being an offense against possession of property.
* * * * * *
“In order to maintain an action for conversion, the plaintiff must show that at the time of the conversion he was in possession of the property, or was entitled to the immediate possession thereof”.

Clearly plaintiff was never at any time owner of the Ferrari. Was it entitled to possession? Its chattel mortgage of December 14, 1962, and signed by Wayne Joplin provided in part: “ * * * if said mortgagee shall at any time deem said mortgage, said chattels, said debt or said security unsafe or insecure, or shall choose to do so * * * said mortgagee at his option, without notice” may take possession and without legal procedure or demand for performance, sell at public or private sale. There is no evidence that plaintiff ever attempted to foreclose, or act under its mortgage. It never owned the chattel, never had actual possession of it and never took any steps, by court action or otherwise, to secure possession, although it knew about defendants’ mortgage at a time when Joplin was still in possession, knew that defendant Goodhue had repossessed and was planning to sell.

The opinions in the three cases from which we have quoted and the statements in C.J.S. clearly do not lead to a conclusion that the facts in the instant case constitute a conversion. There is no evidence that plaintiff was ever owner of the Ferrari. Assuming that plaintiff’s mortgage covering a 1961 Ferrari with the correct engine number is sufficient to effectively identify the 1952 Ferrari, still plaintiff was not entitled to possession unless and until there was a default (which was proved) and steps taken to foreclose or repossess the security (which was not shown). In many similar instances the mortgagee is willing to rely on the mortgagor to pay, rather than to move against the collateral. A request that defendant Goodhue come in and settle the matter is certainly not a demand for possession. Goodhue concealed none of the facts but rather admitted his possession, asserted his right to possession under the prior mortgage and his right to sell the collateral. Still plaintiff instituted no legal procedure to obtain possession. The undisputed evidence shows that on February 7, 1962, when the Ferrari was pledged to the Wornall Bank, Goodhue was the owner. This mortgage and the promissory note were assigned to Mrs. Goodhue for a valuable consideration (a new note and additional collateral). Joplin had defaulted and Goodhue had the legal right to exercise the mortgage given right of possession. It seems to us therefore that plaintiff did not make a submissible case in conversion because it failed to show the vital elements essential to make a case in conversion. There is no substantial evidence that plaintiff owned the Ferrari; that possession was tortiously taken from it, or that it took any necessary steps by court procedure or otherwise, which would activate or bring into being its latent rights, under its mortgage, to possession. Therefore, the Court did not err in directing a verdict for the defendants Goodhue.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

HOWARD, P. J., CROSS and BLAIR, JJ., and L. F. COTTEY, Special Judge, concur.


source: Caselaw Access Project

author: HOWARD, Presiding Judge.

license: Public Domain

text:
    Beulah WHEATON, Appellant, v. The REISER COMPANY and the Travelers Insurance Company, Respondents.
    No. 24652.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 2, 1967.
    Application to Transfer Denied Nov. 13, 1967.

      Robert J. Mann, James L. Williams, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for appellant.
    Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for respondents.
   HOWARD, Presiding Judge.

This is an appeal of a workmen’s compensation claim initiated by appellant as the widow and sole dependent of William Albert Wheaton, the deceased workman. The referee allowed death benefits including burial expenses, but on appeal to the Industrial Commission, benefits were denied in an award agreed to by two commissioners, Commissioner Cates dissenting. On appeal to the Circuit Court of Jackson County, Missouri, the award of the Industrial Commission was affirmed, and claimant has duly appealed to this court.

Deceased was a painter employed by the Reiser Company and worked full time in and around the Muehlebach Hotel in Kansas City, Missouri. ON the date of his death, October 7, 1963, he was working in the lobby of the hotel removing varnish from the lower five feet of large square wooden pillars. He would paint varnish remover on the pillar, and after allowing time for it to soften the varnish, would scrape the varnish from the pillar, putting the scrapings in a tin can and would sand the rough places. He had been occupied at this task since morning and in the afternoon he was observed by the bell captain to fall against the pillar on which he was working. He clutched at the pillar and fell to the floor all in one motion. He first fell on his buttocks and then over on his back striking the back of his head on the marble (or tile) floor. He did not move after he fell and appeared to be unconscious. An ambulance was called and deceased was taken to a hospital, where he was pronounced dead on arrival. Although the witness was looking at deceased at the time he fell, the witness did not see him slip or stumble, and he positively testified that deceased did not trip over the rug which was on the floor near the spot where deceased fell. The witness did not pay particular attention to the floor, but did not see any object which might have caused deceased to fall and did not observe that the floor was slick. The witness looked at deceased after he fell and did not see any lacerations or bruises, although he did observe a spot of blood about the size of a quarter on the floor after deceased was moved, which was at the place where deceased’s head had rested.

An autopsy was performed by a deputy coroner of Jackson County, Missouri. He testified that the heart was normal in size and that there was a moderate amount of sclerosing of the aorta and of the coronary vessels. He found no evidence of an occlusion of the coronary vessels and there was no evidence of scarring of the heart muscle itself. There was a fracture of the fifth and sixth ribs just to the right of the sternum. A massive subdural hemorrhage was discovered over the right cerebral hemisphere, which in the doctor’s opinion was the cause of death. In answer to a hypothetical question the doctor testified that in his opinion, based upon reasonable medical certainty, the death was caused by cerebral hemorrhage due to trauma to the head. The doctor observed a laceration on the left side of the scalp. He did not find any “scarring or bruising or swelling or edema on the right side of his head.” He was not specifically asked whether or not there were any lacerations, bruises, etc. on the back of his head. On cross-examination, the doctor denied that spontaneous subdural hemorrhage is quite common. He stated that in his fifteen years of performing postmortem examinations, he had never encountered a spontaneous subdural hemorrhage; all that he encountered were due to trauma, and such hemorrhages were not common in the absence of trauma. He stated that the hemorrhage in this case was caused by some trauma to the right side of the head. He did not know what caused deceased to fall to the floor.

He testified in response to leading questions on cross-examination that coronary insufficiency “can” cause fainting or blackout spells; that this “possibly” could have caused deceased’s fall, if he was exerting himself more than usual or “possibly” if deceased’s medicine had worn off.

The doctor did not determine which blood vessel had ruptured to cause the hemorrhage in deceased’s head, and he testified that such hemorrhages were frequently slow in developing, but that the speed with which they develop depends upon the size of the blood vessel that ruptures. He admitted that “it was possible” that the hemorrhage here in question had existed for some time and developed slowly; that it was “possible” that the hemorrhage preexisted the fall; and agreed that such possibility was “as possible as the other conclusions in the case.”

The doctor testified that there were no aneurisms in deceased’s brain. He specifically testified that deceased’s hemorrhage was caused by trauma, but he was unable to say how long it had existed and that it was “possible” that the hemorrhage could have existed prior to the fall and have been the cause of the fall.

Dr. Williams testified that he had removed deceased’s gall bladder in 1962 and that deceased recovered satisfactorily from the operation. Prior to the operation, Dr. Wright was called in and diagnosed deceased’s complaints of chest pains as being coronary insufficiency. He prescribed medication and diet and considered deceased to be “a satisfactory therapeutic result.” He testified that he could not say that deceased’s condition could cause a blood vessel in the brain to rupture. There was some x-ray evidence of heart enlargement and Dr. Wright explained that there might be variations in the size of the heart appearing on various x-rays because sometimes the x-ray would catch the heart fully expanded and sometimes contracted. He further testified that preparation of a dead body might cause some shrinkage of the heart.

On the basis of the foregoing evidence the commission found that there was sufficient evidence, and inferences therefrom, to show how deceased’s injury occurred and that, therefore, the presumption which arises when an employee is found dead, or injured, at a place where his employment required him to be, went out of the case. They concluded “that the fall with which we are here concerned was idiopathic in that it arose from an unknown or obscure cause.” The commission then decided, on the authority of Howard v. Ford Motor Company, Mo.App., 363 S.W.2d 61, that such idiopathic fall was not compensable and that, therefore, claimant could not recover.

In order for claimant to recover she must show that death resulted from an accident arising out of and in the course of employment. Section 287.120 RSMo, 1959, V.A.M.S. There is no question that the accident, i.e., the fall, occurred “in the course of” employment. However, the difficulty arises in determining whether or not the accident arose “out of” the employment. In order to recover, claimant must show a causal connection'between the employment and the fall and that the fall caused the hemorrhage which caused deceased’s death.

It is not every injury occurring while claimant is at work which is compensable. Only such injuries which arise “out of” employment are compensable. Before it can be held that an injury (or death resulting therefrom) arose “out of” the employment a causal connection between the employment and the accident and injury must be found. See Liebman v. Colonial Baking Company, Mo.App., 391 S.W.2d 948, where this requirement is set out: “The familiar rule is that an accident will be held to have arisen ‘out of’ the employment when, from a consideration of all the relevant circumstances, it appears that there was a direct causal connection between the employment and the injury (attributable either to the nature of the employee’s duties or to the conditions under which he was required to perform them) so that the accident can fairly be said to have been a rational consequence of some hazard connected with (or aggravated by) the employment. Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874, 879; Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743, 745-6; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62, 65; Long v. Schultz Shoe Co., Mo.App., 257 S.W.2d 211, 212; May v. Ozark Central Telephone Co., supra, 272 S.W.2d 849. That is the cardinal requirement for com-pensability in all cases in Missouri, no matter how or where the accident may have occurred and no matter in what category the causative risk may be classified. Its basic factors are ‘causal connection’ and ‘rational consequence.’ When they are shown to exist, the test has been satisif ed; otherwise, it has not.” See also Kelley v. Sohio Chemical Company, Mo., 392 S.W.2d 255.

To carry her burden of showing such causal connection between deceased’s employment and his fall, claimant relies on the presumption that a workman was injured in the course of and in consequence of his employment when he is found injured or dead at a place where the performance of the duties of his employment required him to be. This presumption has been asserted and discussed in such cases as Duff v. St. Louis Mining and Milling Corp., 363 Mo. 944, 255 S.W.2d 792; Oswald v. Caradine Hat Co., Mo.App., 109 S.W.2d 893; Stamps v. Century Electric Co., Mo. App., 225 S.W.2d 493; McClelland v. Hagerty Wrecking Co., Mo.App., 384 S.W.2d 93. In Mershon v. Missouri Public Service Corporation, 359 Mo. 257, 221 S.W.2d 165, the holdings of numerous cases concerning this presumption are summarized as follows: “Without reviewing those cases separately, we make the following general observations : Some, or all of them, hold under our Workmen’s Compensation Act and similar Acts that the burden is on a claimant to show that an employee’s injury resulted from an accident arising out of and in the course of his employment; but, when an employee charged with the performance of a duty is found injured at a place where his duty required him to be, a presumption arises that he was injured in the course of and in consequence of his employment; that such presumption is rebuttable.”

In all of these cases, the presumption is discussed, but in each case the court found that there was evidence showing how the accident occurred, and that, therefore, the presumption went out of the case and the decision was based upon the evidence alone. In the case at bar, claimant contends that we have here an unexplained fall and that, therefore, the presumption does apply; that there is no evidence from which the facts can be determined and that the presumption takes the place of evidence proving that the fall grew “out of” deceased’s employment. However, claimant has not considered the recent en banc decision of our Supreme Court in Kelley v. Sohio Chemical Company, 392 S.W.2d 255. In that case a young lady alone in a business office, during the noon hour, heard footsteps behind her and she was struck on the back of the head. She was later found unconscious. Nothing was disturbed in the office and nothing was stolen. There was no evidence as to who committed the assault or why. In this situation, the Supreme Court determined there was evidence as to what happened. In other words, they held that from the evidence it could be determined “how” the injury occurred but not “why”. In such situation the court held that the presumption did not apply. The court said: “There was direct and substantial evidence that the claimant was struck on the head by an unknown and unseen assailant who attacked fo.r an unknown reason, and that there was no robbery or theft; indeed, there was no other crime, so far as the evidence shows. If any such presumption arose at all under these circumstances, it was rebutted by the evidence adduced, and the matter simply stood as a case of assault with the manner and circumstances affirmatively shown, if not the motive. See, on rather analogous facts, Giles v. W. E. Beverage Corp., 133 N.J.L. 137, 43 A.2d 286, aff. 134 N.J.L. 234, 46 A.2d 728, where the presumption was held not applicable because there was no ‘lack of evidence.’ In that case two unidentified men were seen to enter a liquor store and shoot the manager, without speaking, without committing any robbery or theft, and for no known reason. In Larson on Workmen’s Compensation that holding is criticized, § 11.33, because the evidence did not show ‘why’ the man was shot. If such were to be the rule, then it would seem that a recovery would be more or less automatic in every assault case where a motive was not actually shown, and we do not accept that reasoning.”

Likewise, in the case at bar, we know what happened to deceased, but not why it happened. There was direct eye witness testimony as to the details of the fall. However, there is no evidence from which it can be determined “why” deceased fell. In such situation, the presumption contended for by claimant does not arise. We have direct and detailed eye witness testimony that deceased fell against the pillar on which he was working, clutched at the pillar, and fell to the floor, striking the back of his head on the floor. The witness who observed this fall did not see deceased slip or stumble or trip and did not see anything else that would explain why deceased fell. Thus we have a case of a true “unexplained” fall, which by analogy to the unexplained assault in Kelley v. Sohio Chemical Company, supra, is not compensable.

Larson on Workmen’s Compensation, Section 11.33 equates unexplained assaults with unexplained falls, and, although we have found no Missouri case so equating the two problems, we believe that such is a logical and rational procedure, and we believe that the discussion of unexplained assaults in the Kelley case, supra, applies equally to this case of an unexplained fall. The court in Kelley said:

“The matter, therefore, stands on the evidence as in one sense a case of ‘unexplained’ assault, or as the Court of Appeals stated, a ‘neutral assault’, i.e., one not shown specifically to have arisen out of the employment, or, on the contrary, to have arisen from some outside and personal circumstance or motive. But, in our view, the circumstances have been sufficiently shown by evidence to permit a reasonable inference, on the part of the finders of fact, that the assault had no connection with and did not arise out of the employment. In such a situation the burden still rests upon the claimant to show some direct causal connection between the injury and the employment. Toole v. Bechtel Corp., Mo., 291 S.W.2d 874; Stamps v. Century Electric Co., Mo.App., 225 S.W.2d 493; Mershon v. Missouri Public Service Corp., 359 Mo. 257, 221 S.W.2d 165; Reed v. Sensenbaugh, 229 Mo.App. 883, 86 S.W. 2d 388; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62. Our courts have held that there may be an award of compensation if the injury was ‘a rational consequence of some hazard connected with the employment.’ Toole, supra. See also: Reed v. Sensenbaugh, supra; Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743; Scherr v. Siding & Roofing Sales Co., supra; Ries v. DeBord Plumbing Co., Mo.App., 186 S.W.2d 488. But it has also been held very generally that the employment must in some way expose the employee ‘to an unusual risk of injury from such agency which is not shared by the general public.’ Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743; May v. Ozark Central Telephone Co., Mo.App., 272 S.W.2d 845; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62; Ries v. DeBord Plumbing Co., Mo.App., 186 S.W.2d 488; Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296. Upon that basis the injury-must have been a rational consequence of that hazard to which the employee has been exposed and which exists because of and as a part of the employment. Gregory, Toole, Scherr, Ries, supra. It is not sufficient that the employment may simply have furnished an occasion for an injury from some unconnected source. Gregory, Toole, supra; Foster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421.”

Respondent contends that in this case there was sufficient evidence to support the finding of the commission, that this was an idiopathic fall, i.e., one resulting from some cause personal to the individual, such as physical defect or disease, and as such it is not compensable. However, as noted in the summary of the evidence as heretofore set out, the only testimony on which such a conclusion could be based was that of the deputy coroner, who merely admitted in response to leading questions on cross-examination that various things were “possible”. Such testimony that something is “possible” does not constitute substantial evidence. See Seabaugh’s Dependents v. Garver Lumber Mfg. Co., 355 Mo. 1153, 200 S.W.2d 55 and Welker v. MFA Central Co-Operative, Mo.App., 380 S.W.2d 481. In the latter case, it is said: “Expert evidence that it is possible that an act could have caused a certain result is admissible as an assurance that such result was scientifically possible, but is not, standing alone, substantial evidence that the act did cause such result. O’Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55; Adelsberger v. Sheehy, 332 Mo. 954, 59 S. W.2d 644; Wack v. F. E. Schoenberg Mfg. Co., 331 Mo. 197, 53 S.W.2d 28.”

Consequently there is no substantial evidence to support the conclusion of the commissioners that this was an idiopathic fall. There was no evidence which would support a finding that the deceased fell because of dizziness or blackout resulting from the coronary insufficiency or the slight arteriosclerosis. The doctor’s testimony showed that there was no heart attack or occlusion of the coronary vessels. Any finding to this effect could be based only on speculation and surmise.

The commission’s reliance on Howard v. Ford Motor Co., Mo.App., 363 S.W.2d 61, is misplaced, because in that case it was admitted that the fall was idiopathic in nature, that is, it was caused by physical insufficiency of the individual. The fall was admittedly the result of an insulin reaction. Consequently the holding in Howard is not applicable to the case at bar where there is not sufficient evidence to support a finding that the fall of deceased resulted from any physical defect or disease. As noted before, the commission did not specifically so find, but characterized the fall as idiopathic because it “arose from an unknown or obscure cause.” As we have heretofore said it arose from “an unknown cause” and, therefore, comes within the purview of the cases heretofore cited dealing with unknown falls and not with idiopathic falls.

From the foregoing it is apparent that the claimant has failed to sustain her burden to show by substantial evidence that death resulted from injuries which resulted from the fall, which arose “out of” deceased’s employment. She has failed to show the necessary causal connection.

Respondent also contends that claimant has failed to show a reasonable probability that death resulted from injuries, which resulted from the fall, i.e., that the fall caused the subdural hemorrhage, which caused the death. In this connection, respondent relies upon such cases as DeLille v. Holton-Seelye Co., 334 Mo. 464, 66 S.W.2d 834; Mershon v. Missouri Public Service Corporation, 359 Mo. 257, 221 S.W.2d 165; Duff v. St. Louis Mining and Milling Corporation, 363 Mo. 944, 255 S.W.2d 792 and Smith v. Terminal Transfer Co., Mo.App., 372 S.W.2d 659. However, it is unnecessary for us to determine this contention inasmuch as the defects in claimant’s case heretofore noted are fatal to her right to recover.

The judgment of the circuit court affirming the award of the Industrial Commission disallowing compensation is therefore affirmed.

All concur.


author: WOLFE, Judge.

text:
    Irvin S. DRURY, Mary Ellen Drury and Keith Scott Drury, minors, by Irvin S. Drury, their next friend, Plaintiff, v. Victor Anthony SIKORSKI and Francis L. Nenninger and the Farmers Insurance Exchange, Defendants, Victor Anthony Sikorski, Defendant-Appellant, and Francis L. Nenninger, Defendant-Respondent.
    No. 32592.
    St. Louis Court of Appeals. Missouri.
    Sept. 19, 1967.
    Joseph A. Fenlon, Clayton, for plaintiff.
    Carter, Fitzsimmons & Brinker, Clayton, for defendant Farmers Ins. Exchange.
    Armstrong, Teasdale, Kramer & Vaughan, John J. Cole, Fred Leicht, Jr., St. Louis, for defendant-appellant Victor Anthony Sikorski.
    Lusser, Hughes & Lusser, Rene E. Lus-ser, St. Louis, for defendant-respondent Francis L. Nenninger.
   OPINION FILED

WOLFE, Judge.

This is an appeal by defendant Sikorski from an after judgment order awarding and taxing as costs attorney’s fees for a guardian ad litem who acted as attorney for Sikor-ski’s co-defendant Nenninger who was a minor and uninsured.

The suit was brought by Drury oh behalf of himself and, as next friend, for his two minor children. The action against defendants Sikorski and Nenninger involved a three car collision. Drury sought damages arising from personal injuries to himself and, as next friend, damages for injuries alleged to have been suffered by the two children. He also sought recovery for property damage to his car.

He alleged in his petition that he was driving his car south on South Broadway in the City of St. Louis approaching the intersection of Bates Avenue. He charged that defendant Sikorski who was driving his car northwardly on South Broadway suddenly swerved and crossed the center line of Broadway striking the left front side of plaintiff’s car. He further alleged that defendant Nenninger who had been following Sikorski’s car struck the rear end of it and again forced it into collision with plaintiff’s car.

The minority of Nenninger was suggested and the court appointed Rene E. Lusser to act as guardian ad litem. Mr. Lusser consented to act. He represented Nenninger, who was not insured, throughout the trial as his attorney.

The only evidence given at the trial of the case, which has been sent up in the transcript filed, is the testimony of defendant Nenninger. He was seventeen years of age at the time of the collision. He was driving his own automobile northwardly on South Broadway. There were three lanes for northbound traffic but parking was permitted in the curb lane. The same situation prevailed regarding southbound traffic. He was driving his car in the lane nearest the center line and there was a car ahead of him in the same lane. The car ahead slowed down almost to a stop and Nenninger could not stop his car in time to avoid hitting it in the rear.

At the close of all of the evidence there was a voluntary dismissal of plaintiff’s action on behalf of one of his children. There was a verdict and judgment against both defendants in favor of Drury in the sum of $500.00 and in favor of one child in the sum of $100.00. There was no appeal from the judgment.

Twenty days after a motion by plaintiff for a new trial, as to damages only, had been overruled, Mr. Lusser filed a “Motion for Retaxation of Costs.” The motion that he filed recited that the movant had been appointed guardian ad litem and had accepted the appointment and had acted both as guardian ad litem and attorney for Nennin-ger, a minor. It requested an allowance for the services so rendered and that these be taxed as costs.

Mr. Lusser testified at a hearing on the motion that his services as attorney for Nenninger were reasonably worth $950.00. He also stated that at the time of his appointment the minor and his stepfather agreed that they would do their best toward paying his fee. He stated he had written his client at the place of his last known employment but had received no response to his letter. At the conclusion of the hearing the court sustained the motion and awarded the movant $950.00 as attorney’s fees to be taxed as costs.

It is contended by the appellant that the court erred in that there is no statutory nor inherent power to order the award of attorney’s fees to Mr. Lusser or that they should be taxed as costs. It is asserted that the effect of the order would erroneously impose upon the insured defendant liability for the attorney’s fees for the uninsured minor. There is no doubt that if the order is a valid order its effect would impose upon defendant Sikorski liability for the fees of an attorney who at no time represented him.

It should be said at the outset of our consideration of the issues here presented that no question is raised as to the reasonableness of the amount of the fee awarded Mr. Lusser and it is conceded that he gave his ward able representation.

The question of payment of fees for a guardian ad litem who also acts as attorney for a minor defendant is a vexing one. The respondent, in seeking to support the taxation of his fee as costs against the defendant, relies upon Rule 52.02 (i) (k) and Rule 77.06, Missouri Supreme Court Rules of Civil Procedure. Rule 52.02 (i) (k) relates to the appointment of a guardian ad litem for infant defendants and as to that no issue is before us for the appointment was regularly made. Rule 77.06, V.A.M.R. simply states:

“In all civil actions, or proceedings of any kind, the party prevailing shall recover his costs against the other party, except in those cases in which a different provision is made by law.”

This quite obviously is a provision for the prevailing party to recover his costs. In the case here under consideration the plaintiff prevailed. The respondent argues that the costs therefore are chargeable against the defendants and his fees are properly so chargeable.

Among the cases cited by both the appellant and respondent, involving minor parties, is Ragan v. Looney, Mo., 377 S.W.2d 273. That case concerned in part a suit for attorney’s fees by a lawyer who had been appointed guardian ad litem and had acted in that capacity and as attorney for some minor defendants. In the original action the minor defendants prevailed. After final determination of that action wherein the lawyer’s services were rendered the court fixed his fee for his services at $500.00. This order was set aside by the trial court for the stated reason that the court was without jurisdiction “ ‘ * * * over said minors for the purpose of rendering said judgment.’ ” At the next term of court the lawyer brought the suit considered in Ragan v. Looney, supra, and was awarded the judgment of $500.00. Commenting on the allowance made in the original action the court considered the subject of such allowance to some extent and stated at l.c. 276:

“ * * . * It was the duty of the court, after commencement of the suit and service of process, to appoint a guardian ad litem for the minor defendants (V.A.M.S. § 507.190) and that, admittedly, the court did. And it may he, as a general rule, as the respondents now contend, that a guardian ad litem is entitled to no other fee than ‘that which is taxed as part of the costs in the proceeding.’ 27 Am.Jur., (Infants) § 126, p. 846. But fees or costs chargeable as ‘remuneration eo nomine’ are those allowed strictly for services in his capacity as guardian.
Annotation 9 A.L.R. 1537. A court appointed guardian ad litem may of course employ counsel (Nagel v. Schilling, 14 Mo.App. 576) but if the guardian is also a lawyer he may also act as counsel for his wards and if he does and the services were necessary he is entitled to a reasonable fee for his services in that capacity or for his combined services. * * *
“Costs are statutory allowances to a party to an action for his expenses and there is no statute, except in partition, authorizing the allowances to a guardian ad litem as costs. Nevertheless, in particular actions such allowances, even in the absence of express statute, have been assessed as costs. Annotation ‘Allowance of fees for guardian ad litem appointed for infant defendant, as costs’ 30 A.L.R. 2d 1148. While there is no general statutory authority for fees to guardians ad litem, the duty of the court to appoint necessarily implies the obligation to pay and the power of the court to fix reasonable compensation. Jones v. Yore, 142 Mo. 38, 43 S.W. 384; Jones v. Yore, 158 Mo. 83, 57 S.W. 1134. And if there is property or a fund in court for disbursement ‘there would seem to he no tangible reason why the court should not order such allowance to he paid out of the infant’s interest in court.’ Walton v. Yore, 58 Mo.App. 562, 565; Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321. There was no fund in this case and while the subject matter of the Heilman litigation was the land it is not claimed that it was so in the hands of the court that it could by the court’s mere decree be subjected to the payment of Mr. Pufahl’s fee.”

Three of the other cases to which we have been cited are Walton v. Yore, 58 Mo.App. 562; Jones v. Yore, 142 Mo. 38, 43 S.W. 384, and Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321. These cases were considered and the pertinent parts of them stated in Ragan v. Looney, supra. None of them factually deal with taxing attorney’s fees of guardian ad litem as costs.

The respondent cites us to M.F.A. Mutual Insurance Co. v. Alexander, Mo.App., 361 S.W.2d 171. In that case the plaintiff insurance company sought a declaratory judgment holding that it was not required under its policy to defend some suits brought against a minor defendant. The trial court found against the plaintiff insurance company and granted an attorney who had acted both as guardian ad li-tem and attorney for minor defendant, a fee of $350.00. Upon appeal the judgment of the trial court holding that the minor defendant was insured was reversed but the appellate court affirmed the attorney’s fees allowed and allowed them to remain taxed as costs against the plaintiff who prevailed upon the appeal. The ratio decidendi of that case as it relates to the taxing of attorney fees as costs against the prevailing plaintiff is unstated. The facts however distinguish it from the case at hand for it in no way involves a co-defendant.

The subject of an allowance of such fees as costs is covered extensively in 30 A.L.R. 2d 1157, §§ 8 and 9. Most of the cases therein considered, regarding assessing such fees as costs, deal with particular actions, rules or statutes with which we are not here concerned. Of interest is Bruni v. Vidaur-ri, 140 Tex. 138, 166 S.W.2d 81, wherein the court stated, 1. c. 96:

“ * * * When there is another defendant or other defendants than the minor or the party cited by publication, no part of the fee should be taxed against the other defendant or defendants unless facts or circumstances are shown by the record from which it clearly appears that he or they should, in fairness, be required to pay part or all of the fee. * * * ”

In reliance upon the above statement the Texas Court of Appeals in Clark v. Coulson, Tex.Civ.App., 351 S.W.2d 538, 1. c. 552, did assess as costs the allowance made for guardian ad litem for some minor defendants against their father who was a co-defendant. This was done on the theory that it was the “fair” thing to do.

It appears that equitable considerations enter into many such cases but here there is neither law nor any equitable principle that would support the taxing of Nenninger’s attorney’s fees as costs for which his co-defendant would be liable. For this reason other points raised need not be considered and the order of the trial court is reversed.

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


author: DOERNER, Commissioner. PER CURIAM:

text:
    ALLSTATE INSURANCE COMPANY, a Corporation, and Phillip Nelson, Appellants, v. Ralph H. WOEPKE and St. Louis Public Service Company, a Corporation, Respondents.
    No. 32520.
    St. Louis Court of Appeals. Missouri.
    July 18, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Sept. 5, 1967.
    Application to Transfer Denied Nov. 13, 1967.

      Roger M. Hibbits, Florissant, George T. Williams, Clayton, for appellants.
    George A. Adolf, St. Louis, for respondents.
   DOERNER, Commissioner.

This case arose out of a collision between an automobile owned and driven by Phillip Nelson, and a motor bus of the St. Louis Public Service Company being operated by its employee, Ralph Woepke, which occurred in the City of St. Louis on July 30, 1962. The novel feature of the appeal is that opposing counsel are in sharp disagreement as to the party against whom the verdict and judgment were rendered.

That anomalous situation developed in this manner: Nelson first instituted suit in the Magistrate Court of St. Louis County on April 26, 1963, by filing a petition naming Woepke as the sole defendant, in which he sought a recovery for the damages to his car. Thereafter, on December 5, 1963, Nelson filed his first amended petition in which he joined St. Louis Public Service Company as a codefendant. On January 6, 1964, St. Louis Public Service Company filed its counterclaim against Nelson for the damages to its bus. Subsequently, on January 24, 1964, a second amended petition was filed in which Allstate Insurance Company joined with Nelson as a party plaintiff, alleging therein that it had issued a policy of collision insurance to Nelson, that pursuant thereto it had paid him for the damages to his car, and that it had become subrogated to Nelson’s right of recovery against Woep-ke and St. Louis Public Service Company.

Matters thus stood when the case was tried to a jury in the Magistrate Court on January 24, 1964, resulting in a verdict and judgment in favor of Nelson and Allstate. Woepke and St. Louis Public Service Company thereupon appealed to the Circuit Court of St. Louis County. While the case was awaiting trial in that court Nelson, according to the transcript, dismissed his cause of action against both defendants on November 17, 1965. The legal effect of that dismissal was obviously misconstrued by counsel and resulted in the present controversy.

Thus, despite the fact that Nelson had dismissed his cause of action, Mr. Williams, Allstate’s counsel, who had also represented Nelson, repeatedly referred to Nelson as, “ * * * the plaintiff, Mr. Nelson * * ” in his opening statement. But when the defendants called one Charles Caldwell to the stand to testify regarding the damages to the motor bus, Mr. Williams objected to any testimony regarding such property damage in that, “ * * * there is no counterclaim pending in this case before this court.” To quote the lengthy colloquy which followed, out of the hearing of the jury, would unduly and unnecessarily extend this opinion. It is sufficient to say that Mr. Williams took the position that when Nelson dismissed his cause of action against Woepke and St. Louis Public Service Company he was thereby entirely eliminated as a party to the cause, and that since the bus company had never counterclaimed against Allstate it could not recover a judgment against that insurance company. Mr. Adolf, counsel for both defendants, stated that he had not seen the file and apparently at first was under the impression that the bus company’s counterclaim was against both Nelson arid Allstate. Upon learning that it was only against Nelson he first sought to file a counterclaim against Allstate. When permission to do so was not granted he then contended that St. Louis Public Service Company’s counterclaim against Nelson could be prosecuted against Allstate because “Mr. Nelson testified he had a liability policy with them (Allstate) at the time of this accident” and because “Furthermore, the interrogatories show there was a proof of loss filed in which Mr. Nelson assigned all his rights in the case to the Allstate Company.” After listening to the foregoing contentions the court concluded the conference at the bench by stating, “I am going to overrule it. (Mr. Williams’ objection) I see the point now, but it is overruled.” The witness then testified to the damages sustained by the bus.

At the conclusion of all of the evidence the following occurred:

“MR. WILLIAMS: I’d like to at this time, if the Court please; the Public Service at this time has not proved a cause of action for damages against the Allstate Insurance Company.
“MR. ADOLF: Judge, this originally came under the compulsory counter claim situation as far as I was concerned, so I filed a counterclaim.
“MR. WILLIAMS: There is no compulsory counterclaim.
“THE COURT: I don’t understand that part of it. I understand your point now in raising it but when it’s trial de novo I don’t know exactly where we are, so I am going to overrule it at that time. We have already heard it all.
“MR. WILLIAMS: It’s a question of whether or not he can get an Instruction to show that they are careless and negligent, the Allstate Insurance Company itself.
“THE COURT: That is something we are going to have to argue on the Instructions, I guess.”

Defendants then filed a motion for a directed verdict in their favor on the grounds that, “this plaintiff, Phillip Nelson, is not entitled to recover against these defendants,” in which they repeatedly referred only to Nelson as “this plaintiff.”

The confusion which obviously existed was increased, rather than diminished, by the instructions to the jury which followed. Thus in Instruction No. 2 given by the court (MAI 3.01), the jury was told that, “ * * * The burden is upon plaintiff to cause you to believe the propositions necessary to support his claim against defendant. And, likewise, as to defendant’s counterclaim for damages the burden is upon defendant to cause you to believe the propositions necessary to support his claim against plaintiff. * * * ” Allstate submitted its cause of action by Instruction No. 4 (MAI 17.02) in which it referred to itself as “plaintiff” without, however, adding the phrase “ * * * on plaintiff’s claim for damages * * * ” which must be used where a defendant has filed a counterclaim against the plaintiff. Defendants submitted their affirmative defense of contributory negligence by Instruction No. S (MAI 28.01) which reads:

“INSTRUCTION NO. 5
“Your verdict must be for the defendants on plaintiff Allstate Insurance Company’s claim for damages whether or not defendants were negligent if you believe:
“First, plaintiff’s insured either:
failed to keep a careful lookout, or drove at an excessive speed, or violated the traffic signal; and
“Second, plaintiff’s insured’s conduct, in any one or more of the respects submitted in paragraph First, was negligent;
“Third, such negligence of plaintiff’s insured directly caused or directly contributed to cause any damage plaintiff Allstate Insurance Company may have sustained.
MAI 28.01 offered by Defendants”

And defendant St. Louis Public Service Company submitted its counterclaim by Instruction No. 8, by which the jury was advised as follows:

INSTRUCTION NO. 8
“Your verdict must be for the defendant St. Louis Public Service Company on its counterclaim for damages if you believe:
“First, plaintiff’s insured either:
failed to keep a careful lookout, or drove at an excessive speed, or violated the traffic signal; and
“Second, plaintiff’s insured’s conduct in any one or more of the respects submitted in paragraph First, was negligent; and
“Third, as a direct result of such negligence defendant St. Louis Public Service Company sustained damage,
unless you believe defendant St. Louis Public Service Company is not entitled to recover by reason of Instruction No. 4.”

Regarding the verdict which might be returned, by Instruction No. 11 the court directed, in part:

“FORMS OF VERDICT
“If all of you agree upon a verdict for plaintiff, it may be in the following form:
“ ‘We, the jury, find the issues in favor of the plaintiff and assess plaintiff’s damages as follows:
“ ‘For property damage $-(here insert the amount or if none write the word “none”).
-Foreman.’
“If all of you agree upon a verdict for defendant, it may be in the following form:
“ ‘We, the jury, find the issues in favor of the defendant on its counterclaim and assess defendant’s damages as follows:
“ ‘For property damage $- (here insert the amount or if none write the word “none”).
-Foreman.’
“If all of you agree that neither party should recover from the other, your verdict may be in the following form:
“ ‘We, the jury, find the issues in favor of the defendant on plaintiff’s claim and in favor of the plaintiff on defendant’s counterclaim.
-Foreman.’
“If less than twelve jurors return a verdict for either party in this cause, you should begin your verdict with the words:
“ ‘We, the undersigned jurors, find,’ etc., instead of ‘We, the jury, find,’ etc.’ ”

Nowhere in the closing argument of opposing counsel, which we have carefully reviewed, was the jury ever told that the counterclaim of St. Louis Public Service Company was against Nelson, and not Allstate. The closest approach was at the conclusion of Mr. Adolf’s argument when he asked the jury to, “ * * * bring in a verdict for the St. Louis Public Service Company and Mr. Woepke on the Allstate Insurance Company and that you also bring in a verdict of $282.09 for the St. Louis Public Service Company because of the bus damage.”

The jury adopted the last form of verdict submitted to it by Instruction No. 11 and returned a verdict reading:

“ ‘We, the jury, find the issues in favor of the defendant on its counter-claim and assess defendant’s damages as follows:
For property damage $282.09.
Foreman, Vincent H. Scully, Sr.’ ”

The judgment entered pursuant to the foregoing verdict was not included in the transcript filed in this court, but a certified copy was obtained by us from the clerk of the Circuit Court as authorized by Civil Rule 82.12(c), V.A.M.R. The pertinent part is as follows:

“* * * Trial of this cause is resumed and being concluded the jurors aforesaid, upon their oath aforesaid, return into Court the following verdict. ALLSTATE INSURANCE COMPANY, Plaintiff vs. RALPH H. WEPKE and ST. LOUIS PUBLIC SERVICE COMPANY, Defendants, Cause #258343. VERDICT: ‘We, the jury, find the issues in favor of the defendant on its counterclaim and assess defendant’s damages as follows: For property damage $282.09.’ Signed/Vincent H. Scully, Sr. Foreman.
“WHEREFORE, it is ordered and adjudged by the Court that defendants have and recover of said plaintiff on its counterclaim the sum of Two Hundred Eighty Two and 09/100 ($282.09) Dollars assessed by the jury as aforesaid, together with interest thereon from this date at the rate of six per centúm per annum, and also the costs herein incurred.”

Within the prescribed time “plaintiff” (unnamed) filed a motion titled “Motion for New Trial or in the Alternative Motion to Reopen the Judgment and Either Order a New Trial or Direct the Entry of Judgment for Plaintiff on Defendants’ CounterClaim.” In brief, it was contended therein that no cause of action had been pleaded or proven against Allstate, and that no verdict against Nelson was authorized because he had been dismissed as a party prior to the time of trial in the Circuit Court. We note, however, that following the overruling of the foregoing motion a notice of appeal was filed which states that, “ * * * Allstate Insurance Company and Phillip Nelson above-named, hereby appeal * *

However, despite the fact that the notice of appeal reads that the appeal was taken by Allstate and Nelson, counsel for appellant asserts in his brief that Nelson, “ * * was no longer a party due to his dismissal prior to trial, which was acquiesced in by defendant * * He also contends that the foregoing verdict and judgment was in fact rendered against Allstate, and that it is erroneous because St. Louis Public Service Company had never asserted a claim against Allstate, “ * * * the only plaintiff in the cause.” On the other hand, although counsel for respondents had maintained during the trial that the bus company’s counterclaim could be prosecuted against Allstate after Nelson dismissed his cause of action, he now argues that Nelson’s dismissal of his cause of action did not eliminate Nelson as a party to the cause, and that the verdict and judgment on St. Louis Public Service Company’s counterclaim was in fact rendered against Nelson.

In asserting that Nelson eliminated himself as a party to the cause by dismissing his cause of action against the defendants appellant’s counsel has obviously overlooked Civil Rule 67.06 which provides that, “No dismissal, voluntary or involuntary, of a plaintiff’s action in which a counterclaim or cross-claim has been filed shall operate to dismiss or discontinue such counterclaim or cross-claim.” Nelson, of course, had the right to dismiss his cause of action against Woepke and St. Louis Public Service Company, but such dismissal did not entirely eliminate him as a party to the cause or bar the bus company from pressing its counterclaim against him. Scott v. Rees, 300 Mo. 123, 253 S.W. 998; Lanyon v. Chesney, 209 Mo. 1, 106 S.W. 522; Atkinson v. Carter, 101 Mo.App. 477, 74 S.W. 502.

However, we think the conclusion is inescapable that the jury was misled as to the correct status of Nelson, and that in returning the verdict it did the jury acted under the impression that it was finding against Allstate on St. Louis Public Service Company’s counterclaim. Its misconception in that regard is understandable, for if counsel during the trial labored under the misunderstanding that Nelson was no longer a party to the cause, as the record plainly shows, the jury could scarcely be expected to know better. Furthermore, the wording of the instructions, both those offered by the parties and those given by the court of its own volition, tended to mislead the jury as to the correct status of Nelson. The only party referred to therein by name as a plaintiff was Allstate, and the only mention of Nelson was as “plaintiff’s insured.” And according to the certified copy of the judgment furnished us by the circuit clerk, the style of the case in the verdict returned by the jury was, “Allstate Insurance Company, Plaintiff vs. Ralph H. Wepke (sic) and St. Louis Public Service Company, Defendants” which of itself indicates that Nelson was not regarded as a party to the cause. In short, the jury was never informed, either by the instructions, the forms of verdict given it, or even by counsel during argument, that Nelson was a party to the action and that the defendant bus company’s counterclaim was being asserted only against him. It was only natural for the jury to erroneously conclude that the counterclaim was against Allstate.

This misconception regarding the identity of the party against whom the jury returned its verdict on the counterclaim extends to the judgment actually entered. As we have pointed out, the certified copy of the judgment furnished us by the Circuit Clerk shows Allstate Insurance Company as the only party plaintiff. And the judgment as entered reads that, “ * * * defendants (sic) have and recover of said plaintiff * * Since Allstate is the only plaintiff named the “said plaintiff” against whom the judgment was rendered can only be Allstate. Citations are hardly necessary to support our ruling that a judgment erroneously rendered against one who was never sued cannot stand.

For the reasons stated the judgment is reversed and the cause remanded for a new trial.

PER CURIAM:

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

Accordingly, judgment reversed and cause remanded for new trial.

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

OPINION ON MOTION FOR REHEARING •

PER CURIAM:

For the first time defendants assert, in their motion for a rehearing, or, in the alternative, to transfer this cause to the Supreme Court, that the judgment was not final because no reference appeared therein to plaintiff Allstate’s claim and that we were therefore without jurisdiction to entertain this appeal. The contentions now belatedly sought to be made did not escape our attention during our initial consideration of the appeal, although it was not necessary to discuss them in our opinion since they had not been raised in the defendants’ brief. The facts are that the claim of plaintiff Allstate as subrogee of Nelson and the counterclaim of defendant St. Louis Public Service Company against Nelson were both based on primary negligence and were therefore contradictory and inconsistent. Jameson v. Fox, 364 Mo. 237, 260 S.W.2d 507, 58 A.L.R.2d 80; Rozen v. Grattan, Mo.App., 369 S.W.2d 882; Hoefel v. Hammel, Mo.App., 228 S.W.2d 402. In such a situation only one party may prevail, and a judgment for one disposes of the claim of the other. And the rule is that where, as here, the determination of the issue on which the judgment is based is necessarily decisive of the whole case, the judgment will be regarded as final even though the inconsistent claim or counterclaim is not mentioned therein. Glick v. Glick, Mo., 372 S.W.2d 912; Rozen v. Grattan, supra; Capitol Stores, Inc. v. Storms-Green Construction Co., Mo.App., 346 S.W.2d 549; Staples v. Dent, Mo.App., 220 S.W.2d 791.

Defendants’ motion for a rehearing, or, in the alternative, to transfer this cause to the Supreme Court, is overruled.

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


author: ANDERSON, Presiding Judge.

text:
    Melvin HALEY, Plaintiff-Respondent, v. Richard James MOORE, Defendant-Appellant.
    No. 32710.
    St. Louis Court of Appeals. Missouri.
    July 18, 1967.
    Motion for Rehearing or to Transfer to Supreme Court Denied Sept. 12, 1967.
    Application to Transfer Denied Nov. 13, 1967.

      Eaker & McGuire, Lloyd E. Eaker, Clayton, Mo., for defendant-appellant.
    Steward & Bruntrager, Joseph G. Stewart, St. Louis, for plaintiff-respondent.
   ANDERSON, Presiding Judge.

Plaintiff, Melvin Haley, brought this action to recover damages for personal injuries alleged to have been sustained when he was struck by defendant’s automobile while crossing Franklin Avenue a short distance west of 19th Street, in the City of St. Louis. The trial resulted in a verdict for plaintiff for $5,000.00 From the judgment on said verdict, defendant has appealed.

Plaintiff submitted his case solely on defendant’s humanitarian negligence in failing to swerve. Defendant assigns as error the failure and refusal of the trial court to sustain his motion for a directed verdict at the close of all the evidence for the reason that plaintiff failed to make a case for the jury on the issue submitted. We will therefore state the facts bearing on that issue, and in deciding the matter consider only that evidence and the inferences therefrom most favorable to plaintiff.

The accident in question occurred on August 12, 1963 about 4:45 p. m. Franklin Avenue runs east and west, and 19th Street runs north and south. The two streets intersect at right angles. Franklin is a one-way street for westbound traffic. Its width according to plaintiff’s testimony is approximately “I would say fifty to fifty-five feet” and 19th Street is approximately thirty-five or forty feet wide. Franklin has five traffic lanes. At the time in question, no parking was permitted on the north side of Franklin. It had been raining that day but at the time of the accident the weather had cleared and the streets were not very wet. Defendant was operating his 1963 Pontiac west on Franklin Avenue at the time. With him in the car was Bernard Flotte. They were traveling in the 4th lane from the north curb, and next to the south curb lane. Shortly prior to the accident, plaintiff had made a purchase at Meyer Brothers Supermarket located on the north side of Franklin. Said market is the second building west of 19th Street. After making the purchase, plaintiff emerged from the front door of the Supermarket and walked south to the north curb of Franklin. His intention at that time was to cross Franklin to buy cigarettes at a filling station located some distance to the west on 20th Street. He stated that when he reached the curb he was about 10 or IS feet west of 19th Street. He looked toward the east at that point and became aware of traffic on Franklin around 18th Street. He stated he could not say whether there were a large number of cars there or whether the traffic was stopped or moving. He further stated that there was a “dip” in Franklin between 18th Street and 19th Street; making Franklin lower about 250 feet east of 19th Street. Plaintiff then stepped from the curb intending to cross the street.. He walked at a slight angle toward the, southwest. He stated that when he got to what he considered to be the center of the street he again looked toward the east but saw nothing. He did not recall whether he looked to the east after crossing the center of the street. He stated that when he was two-thirds of the way across the street he assumed he was safe and kept going. He further testified: “I was about ten or fifteen feet from the south curb when I heard a woman scream. I looked in time to see only the chrome of a car that struck me.” He stated he was rendered unconscious and when he first became aware of things thereafter he was sitting on a box on the south sidewalk. He further stated that the next thing he remembered was that he was in the receiving room of the City Hospital.

As a part of his case, plaintiff introduced in evidence certain questions and answers thereto appearing in a deposition of defendant taken prior to the trial. In said deposition, defendant stated that his name was Richard J. Moore; that on August 12, 1963, he was involved in an automobile accident with a pedestrian; that the accident occurred at 4:30 or 5:00; that he was driving at the time; that his automobile hit a man; and that this person was hit by the front of the car near the driver’s side. Defendant further testified: “I had just stopped at 18th Street for the stop sign. Generally there is a stop sign at 19th Street, which * * * is a school stop sign, but a lot of time it isn’t always turned around. Sometimes you have to stop and in an evening time I come through there frequently, so I know about the stop sign. But this particular evening * * * anticipating the stop sign I couldn’t have got up no more than maybe fifteen or twenty miles ***.*** I was traveling in the south lane next to the cars. Q. Next to the parked cars? A. Yes, sir.”

Defendant testifying at the trial stated there was a stop sign for westbound traffic at 18th Street; that he made a stop at 18th Street in obedience to said sign; that there were other cars ahead of his car at that point moving forward in all four traffic lanes; that when he reached 19th Street the speed of his car was about 20 miles per hour; that when he reached the intersection and went through it there were cars ahead of him operating in all lanes of traffic; that when he was at 18th Street he was able to see clearly everything on Franklin to 20th or 21st Street; that when he was a few feet from 18th Street he saw Haley come out of Meyer Brothers Store and walk directly to the curb; that he then proceeded downgrade into the “dip” between 18th Street and 19th Street; that when he came out of the “dip” and approached 19th Street, he “checked” the corner because he could clearly see all points on 19th Street; that after he had crossed 19th Street a car in the lane to his right appeared as though it was going to stop, and then Mr. Haley suddenly came across into his lane; that he blew his horn and stepped on the brake but his car skidded until it touched Mr. Haley, then suddenly stopped; that when he saw Mr. Haley the latter was walking and looking southwest; that Mr. Haley fell directly in front of his car; that the only time Mr. Haley looked toward him was when his car was skidding; and that the brakes on his car were set and he was blowing the horn when Mr. Haley suddenly turned and put his hand on the car.

Defendant testified on cross-examination that he did not see plaintiff step off the curb; that when he first saw plaintiff he did not know whether plaintiff was going to cross the street or just stand at the curb; that when his car struck plaintiff the latter put his hand up to brace himself then slumped to the pavement; that he was possibly two cars or thirty or thirty-five feet from plaintiff when he first saw plaintiff emerge from in front of the car to his right; that plaintiff was not moving fast and was headed southwest; that he applied his brakes when he was two car lengths from plaintiff; that there were two cars in the lane to the north with not much space between them, not even 10 feet between them; that it was the second car ahead of him to his right on which the brakes were suddenly applied to which he reacted, at which time plaintiff was two car lengths ahead; that just prior to the collision, he swerved his car a little to the left, and to the right but could not go anywhere; that there were cars parked there on the south side of the street but he did not know the distance between those cars and his; and that he was at the time traveling around 22 or 23 miles per hour.

Defendant’s witness, Mr. Flotte, did not see plaintiff until he had stepped about a foot or two into the lane of traffic in which defendant was driving at which time defendant’s car was about two car lengths from plaintiff; that there were cars to the right and ahead of defendant’s car, traffic being heavy at that time; and that the distance between defendant’s car and the vehicle to defendant’s right was about 2 or 3 feet; that he believes defendant did swerve, but was not real sure about it; that he would say defendant swerved to the left, but qualified this statement by saying “I don’t know exactly.”

The witness further testified that plaintiff was struck by the left front of the car and that defendant’s car stopped almost instantly after the impact.

The sole question for our determination is whether plaintiff made a case of failure to swerve. The burden of proof on this issue was on plaintiff, and in order to sustain that burden it was incumbent upon plaintiff to show that defendant could have swerved and have avoided the accident without injury to himself, his passenger and others. Kinealy v. Goldstein, Mo.App., 400 S.W.2d 438. Plaintiff failed to sustain this burden. He offered no evidence from which the jury could reasonably infer that at the time he entered a position of immediate danger the lane to defendant’s right was free of traffic, and that he could have swerved without endangering himself and others. Respondent, of course, disputes this conclusion. It is urged that plaintiff’s testimony that he looked to the east when he reached the center of the street and saw no cars approaching is proof there were no cars to defendant’s right to obstruct his view of plaintiff or to limit the available space for swerving when defendant’s duty to act under the humanitarian doctrine arose. We cannot so regard such testimony. According to plaintiff’s testimony, Franklin is 50 to 55 feet wide. While standing at the north curb, plaintiff became aware of cars at 18th Street westbound. He then walked 25 or 27 feet to the center of the street and again looked east, but saw no cars. This testimony does not prove there were no cars in the lane to defendant’s right, but the only reasonable inference that can be drawn therefrom is that the cars plaintiff had previously seen, including that of defendant’s, were at that time in the “dip” just east of 19th Street. Plaintiff then walked slowly from the center of the street in a southwest direction and entered the 4th land without again looking toward the east. At some point, after leaving the center of the street, plaintiff came into a position of immediate danger of being struck by defendant’s car, which had emerged from the “dip”. It was then that defendant’s duties arose under the humanitarian doctrine, and it was incumbent on plaintiff to show by substantial evidence that defendant could have thereafter swerved without injury to himself and others, the theory of his submission. The fact that plaintiff saw no cars approaching when he reached the center of the street does not, in view of the evidence, establish that important fact.

Plaintiff further contends that even though there were cars to defendant’s right, as shown by defendant’s evidence, a reasonable inference could be drawn from the evidence that there was sufficient space between defendant’s car and those to his right into which he could have swerved and thereby have avoided striking plaintiff. He relies on his own testimony and that of defendant’s witness Flotte. The latter testified that the distance between defendant’s car and the car to his right was two or three feet. Plaintiff testified that he had reached a point about ten or fifteen feet from the south curb when he heard a woman scream an instant before he was hit. This bit of testimony, in view of the tight situation presented, was too indefinite to fix the point of contact. Flotte, when asked if defendant swerved, replied, “I believe he did, sir. I am not real sure, but I believe he did.” He then gave the following testimony; “Q. Then would you know what direction he went? A. I would say to the left. Q. Do you know? A. I don’t know exactly, no sir.” Flotte also testified on cross-examination that plaintiff was struck by the front of the car on its left side. He was then asked the following leading question. “Q. The left front corner ?” His answer was “yes”.

Plaintiff argues that when the foregoing testimony is considered along with the fact that a Pontiac automobile is approximately six feet wide (of which there is no evidence) defendant had approximately five feet within which to swerve to the right and avoid striking plaintiff.

In order for a plaintiff to recover in a humanitarian case every element of his theory of submission must be supported by substantial evidence of probative value or by inferences reasonably deducible therefrom, Vietmeier v. Voss, Mo., 246 S.W.2d 785, and a judgment may not stand where it rests solely upon speculation, conjecture and surmise with respect to an essential element of the case. And if the evidence, taken in the light most favorable to plaintiff, shows but a mere possibility of avoiding the accident a submissible case is not made. Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33. In our judgment, plaintiff’s case does not meet these tests.

Great reliance is placed upon the testimony of Flotte that the distance between defendant’s car and the one to defendant’s right was 2 or 3 feet. However, there is no testimony as to position of the second car ahead in the lane to defendant’s right, which would be in the direction of a swerve by defendant to his right. Plaintiff also relies upon the statement by Flotte that he believed defendant swerved but was not real sure, and that he would say that the direction of the swerve was to the left, but that he did “not know exactly.” Can this evidence be said to be substantial evidence to be considered in the determination of the issues presented ? “Substantial evidence is that evidence which, if true, ‘has probative force upon the issues * * * ’ and from which the trier of fact can reasonably decide the case on the fact issues.” Cupples Hesse Corp. v. State Tax Commission, Mo., 329 S.W.2d 696, l.c. 702. In applying this principle it was held in Weeks v. Atchison, T. & S. F. Ry. Co., 232 Mo.App. 429, 109 S.W.2d 374, l.c. 376, that testimony by a person that he “guessed” that the distance between two tracks was 7½ feet; but that he did not measure it and did not have very good judgment as to distances, was not substantial evidence. On the authority of the above case, we rule that Flotte’s testimony with reference to swerving to the left had no probative value, and should not be considered.

It is our opinion that under the evidence in this case, any conclusion that defendant’s car could have been swerved to the right without danger to himself and others after plaintiff came in to a position of immediate danger could only rest upon speculation, surmise, and conjecture, and that the court erred in overruling defendant’s motion for a directed verdict.

The judgment is reversed.

RUDDY and WOLFE, JJ., concur.