author: PRITCHARD, Commissioner.

text:
    Emily SCHAETTY and Otto Schaetty, Appellants, v. Mickey Dale KIMBERLIN, Respondent.
    No. 49740.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.
    Blackwell & Blackwell, James A. Blackwell, Hillsboro, for plaintiffs-appellants.
    Dearing, Richeson & Weier, H. L. C. Weier, Hillsboro, for defendant-respondent.
   PRITCHARD, Commissioner.

Plaintiffs, husband and wife, jointly brought their actions against defendant for personal injuries arising out of a rear end collision which occurred on February 18, 1961, on U. S. Highway 61-67 at its intersection with Highway C (old highway 61) which leads to the U. S. Highway 61-67 in Jefferson County, Missouri. Plaintiffs’ prayers for damages are respectively $7,-500 and $17,500. From the judgment upon verdict against them, both plaintiffs prosecute this appeal.

U. S. Highway 61-67 is a modern, concrete surfaced, four-lane divided highway, running generally in a north-south direction, two lanes going northward twenty-four feet wide, and two lanes going southward, also twenty-four feet wide, these four lanes being separated by a dirt divider. Highway C also runs generally north and south and parallel to U. S. Highway 61-67, but near its point of intersection therewith, it makes a rather sharp turn to the east and leads up to the new highway. Upon Highway C, on the south side just at the intersection is a stop sign. Farther over, on the divider between the north and south lanes, and on the south part of the intersection is a yield sign facing westerly. The concrete crossover of Highway C at this point is fifteen feet wide. To the south, U. S. Highway 61-67 ascends and then curves to the east, there being a crest of a hill in that direction approximately 300 to 500 feet in distance. To the north from the intersection, U. S. Highway 61-67 continues to descend in a gradual slope.

According to the version of Otto Schaetty of the facts and circumstances of the collision, he was driving his Ford Falcon Ranchero, his wife, Emily, sitting beside him, northwardly on Highway C at a speed of 35 to 40 miles per hour. As he neared the stop sign on the west side of U. S. Highway 61-67, he slowed and stopped to allow southbound traffic to clear the intersection, then proceeded across the southbound lanes to the crossover area and there again stopped. He then looked to the south for northbound traffic, saw none coming for a distance of 300 feet and he then proceeded north on U. S. Highway 61-67, and after proceeding approximately 150 feet north in the outside northbound lane, and while going approximately 25 miles per hour, the Ranchero was struck directly in the center of its back by defendant’s vehicle, which had approached the intersection at between 50 and 55 miles per hour. The testimony of Emily, Otto’s wife, substantially corroborated the foregoing, but she said that Otto came almost to a dead stop at the yield right of way signs where she looked south and did not see any other cars, and she said to Otto, “OK, Shad, there’s no machine coming,” and he pulled onto the right of the highway and started to go straight.

Defendant testified that before he got to the intersection he had passed a car and was in the process of going back to the right-hand lane. As he approached the intersection he was operating his car at a speed between 50 and 55 miles an hour. He noticed Otto’s Ranchero coming down the hill at about 30 or 35 miles an hour. Defendant turned his attention back to the road, and just as he got to the intersection he noticed Otto just crossing the divider line, the crossover, at which Otto did not stop, and defendant applied his brakes, making rubber skid marks 70 feet long. Defendant lost traction and slid up to the oth7 er vehicle, colliding with it in the rear right side with the left front side of defendant’? vehicle. Defendant’s left front tire blew out and the left front dropped down immediately, causing scars on the concrete- highway up to the point of contact. Defendant said the point of impact was a foot and a half to the left side of the painted center divided strip and at the north end of the concrete crossover. As Otto came through the yield sign without stopping he was going at least 20 miles an hour, and the rear of his Falcon slid around slightly as he turned north to his left.

J. K. Wondell testified by deposition (at the time of trial he was in the U. S. Army stationed at Fort Benning, Georgia) that he was employed as a patrolman with the Missouri State Highway Patrol on February 18, 1961, at which time he investigated the accident. He arrived there at 4:10 P.M. after the accident had happened at about 3:30 P.M. He found Otto’s Ranchero pickup on the east shoulder of the highway headed north approximately 300 to 350 feet north of the crossover. The defendant’s vehicle was approximately 150 feet north of the crossover, off the highway and down a slight embankment which was northeast of the intersection. He observed tire marks starting in the northbound lane close to the divider strip on the island, then going over to the outside lane, the lane closer to the east shoulder of the highway, and off the shoulder down the embankment to the 1957 Chevrolet (defendant’s vehicle), the total distance of these tire marks was 180 feet. The first 70 feet of the tire marks led to scratch marks in the surface of the pavement (concrete had been gouged from the pavement leaving an impression) at the north end of the crossover, approximately about the center of the two lanes. From the scratch marks on the surface of the pavement, the tire marks led up to defendant’s vehicle (which was about 75 feet down the embankment) for the additional distance of 110 feet.

For defendant, Mary Ann Kertz testified that she was going south on U. S. Highway 61-67 to Farmington, on the day of the automobile collision, and that She witnessed it. She was driving in the right-hand lane of the two southbound lanes, and saw Mr. Schaetty’s vehicle coming down the side road at a speed, when she first saw him, of about 40 miles per hour, then he seemed to make an effort to slow down to about 30. She said Otto did not stop at the stop sign or the yield sign, and as he got to the yield sign she saw him look to the south and accelerate his automobile at which time he slid on the loose gravel in the middle and his car swerved out in front of defendant’s car. Mrs. Kertz saw the actual impact which was just a short way up from the intersection.

Plaintiffs urge as error the action of the trial court in giving on behalf of defendant three instructions numbered D-5, D-6 and D-7.

Plaintiffs submitted their cases upon the primary negligence of defendant in allowing his vehicle to collide with the rear end of their Falcon Ranchero.

Instruction D-5, directed toward Emily’s case, submits as the sole cause of the occurrence the acts of Otto.

We do not set out any of these instructions in full, but mention is made only of those parts toward which plaintiffs’ attack is levelled. Instruction D-5 requires the jury to find that there was a stop sign at the west side of U. S. Highway 61-67, that there was a “yield right of way” sign facing drivers coming from the west on the crossover strip between the traffic lanes. The jury is required further to find that Ottto drove his motor vehicle in which the plaintiff, Emily, was riding across the southbound lanes of said highway, the crossover strip, and into the northbound lanes of the highway at said intersection without stopping or yielding the right of way at a time when the automobile operated by defendant was approaching so closely as to constitute an immediate hazard. The instruction then leaves it to the jury to find that the failure to do said hypothesized acts was negligence which was the sole cause of Emily’s injuries, and that the same was not due to any negligence of defendant as submitted in other instructions. Then upon a finding of all submitted items a verdict is directed against Emily upon her Count I of the petition.

Plaintiffs claim that instruction D-5 singles out and emphasizes that portion of the evidence relating to the stop sign, and that it in effect told the jury that Otto had the duty to stop at the stop sign at the west side of U. S. Highway 61 -67 (when his stopping or not stopping at that point could have been no proximate cause of the collision), and instruction D-5 also in effect instructed the jury that Otto had the duty to stop at the yield right of way sign at the crossover.

According to defendant’s version of all the facts (which under Watt v. St. Louis Public Service Company, Mo., 354 S.W.2d 889, 893 [9], he was entitled to have the jury consider) leading up to the collision, as testified to by witness Kertz, Otto came down the hill of Highway C at a speed of 40 miles per hour, slowed to 30 miles per hour, did not stop at the stop sign, but continued on to the crossover and did not stop (or yield) the right of way to the northbound vehicle of defendant but drove out in front of it. These are all evidentiary facts showing a course of conduct (close in point of time and distance) to be considered by the jury in arriving at its ultimate conclusion as to whether or not Otto was negligent, as submitted, in failing to yield the right of way to defendant’s closely approaching vehicle. See Herr v. Ruprecht, Mo., 331 S.W.2d 642, 647[2-4], and Creech v. Blackwell, Mo., 318 S.W.2d 342, 350. We explain that by “evidentiary” we mean, in the context here presented, that the fact that Otto may have failed to stop at the stop sign is relevant in that it may bear upon the probability of the ultimate fact relied upon by defendant as a defense that Otto failed to yield the right of way and drove out in front of defendant’s closely approaching vehicle. See definitions of “evidentiary fact,” 15A Words and Phrases 48; Abeles v. Wurdack, Mo., 285 S.W.2d 544, 548. The evidence supports the aforesaid submission and finding of the sole (and proximate) cause of the collision. The instruction did not tell the jury that Otto’s failure to stop at the stop sign was the proximate cause of Emily’s injuries, nor did it exclude any consideration by the jury of other evidence, or instruct the jury as to the weight to be given to the submitted facts, none of which was unduly singled out or emphasized.

The duties of drivers entering a through highway (such as U. S. Highway 61-67 here) from a side road upon which a stop sign had been erected, are governed by Section 304.021 subd. 4, RSMo 1959, V.A.M.S. (enacted Laws 1953, p. 587, § 1), which is as follows:

“The driver of any vehicle shall stop as required by this section at the entrance to a through highway and shall yield the right of way to other vehicles which have entered the intersection on the through highway or which are approaching so closely on the through highway as to constitute an immediate hazard. The state highway commission may erect stop signs at the entrance of. any public road into a through highway.”

It was said in Herr v. Ruprecht, Mo., 331 S.W.2d 642, 648[5, 6, 7], in construing the identical statutory provision as here, “Defendant’s statutory duty extended beyond stopping at the entrance to the intersection and giving preference to vehicles already in it. She was also required to yield the right of way to vehicles approaching the intersection so closely on the through highway as to constitute an immediate hazard. And defendant’s duty to ‘yield the right of way’ existed not merely at the entrance and while she was stopped, but it continued with her into the intersection if and when it appeared (or reasonably should have appeared) to her that plaintiff’s approach had then created an immediate hazard; this is true, at least to the extent that she might then be able to stop or slacken and let the other car pass.” (Emphasis added.) See also Garrison v. Ryno, Mo., 328 S.W.2d 557, 566, under which it was held that the statute did not impose an absolute, unqualified duty to stop in obedience to a stop sign, but the surrounding facts and circumstances control, e. g., as here, a closely approaching vehicle on the through highway.

The emphasized words in Herr, supra, dispose of plaintiffs’ contention that instruction D-5 wrongfully instructed the jury that Otto had the duty to stop at the yield right of way sign. If a stop is then required under the existing circumstances in order that the right of way may be yielded to closely approaching vehicles, then a stop it must be, such fact to be determined by the jury.

Instruction D-6 is a contributory negligence submission directed towards Otto’s case (Count II of the petition). Complaint is substantially the same concerning D-6 (and below in D — 7) as was made against DtS, above discussed, in respect to the submission of the existence of the stop sign on the west side of U. S. Highway 61-67. Instruction D-6, for the ground of Otto’s contributory negligence, is also his failure to yield the right of way to defendant’s automobile which “was approaching so closely as to constitute an immediate hazard.” Certainly if the jury found this submission to be true, which it did as indicated by the verdict, Otto cannot recover.

There obviously could be a better wording of the preliminary evidentiary fact in the instruction which submits initially, “The Court instructs the jury that if you find' and believe from the evidence that on the ' occasion mentioned in evidence, the plajhtíff,'Otto Schaétty, stopped, or did not stop for a stop sign, on the West side of U. S. Highway 61-67 ' * * ' (Emphasis supplied.')’. Plaintiffs’ evidence was that Otto did stop at' the stop sign, and contrarily, defendant’s evidence was that he did'hot stop. The evident meaning of the instruction is whether or' not Otto stopped it the’ stop sign, if the jury further found that he moved forward and entered the lane of the'highway upon which defendant was driving at a time when defendant was approaching so closely as to constitute an immediate. hazard, then the jury could find contributory negligence which would defeat Otto’s claim under Count II of his petition. The jury could not have been misled by the alternative words used in D-6.

.Plaintiffs say also that D-6, in submitting that Otto “turned in front of the defendant. * ■* * and did not yield the right-of way at said intersection” imposed upon him the absolute duty not to turn in front of the defendant. Plaintiffs again overlook the qualifying requirement for the jury to find that at the time defendant was closely approaching, which if true would not give Otto the legal right to proceed into the intersection and turn north, and thus there is no merit in such assignment of error. Garrison v. Ryno, supra.

Instruction D-7 directs a verdict against Otto upon defendant’s counterclaim upon the hypothesized acts of Otto as negligence in failing to keep a careful and vigilant lookout ahead and laterally for other vehicles on U. S. Highway 61-67, including defendant’s vehicle, and (again) in failing to yield the right of way to defendant’s automobile when it was approaching so closely as to constitute an immediate hazard. By its verdict, the jury found against both plaintiffs on their claims, and for -the defendant on his. counterclaim but assessed defendant’s damage's at “none.” It necessarily follows that the jury found that plaintiff, Otto, was negligent in the submitted respects in this instruction, and that defendant was not negligent in allowing his automobile tp collide with the rear end of Otto’s Ranchero, which was submitted for a finding by the.jury in the plaintiffs’ two main instructions. • '

The matter of the propriety of the submission in instruction D-7.of the existence of the stop sign and Otto’s failure to obey it is above discussed and ruled. Plaintiffs do not seem to attack specifically the lookout portion of the instruction, but they do cite Harrellson v. Barks, Mo.App., 326 S.W.2d 351. In that case, it was held that it was not shown that a failure to look at the time defendant was sliding her wheels after she had looked and seen plaintiff in the intersection had anything to do with the collision ; hence the . instruction submitting that fact was misleading. Here, the jury could reasonably find that plaintiffs’ failure to keep a vigilant lookout occurred before defendant had reached the intersection, from which a causal relation could be found. Clark v. Portman, Mo.App., 357 S.W.2d 728, 730[3].

All of these instructions, D-5, D-6 and D-7, fairly and clearly submit to the jury the ultimate issue of Otto’s negligence, and none of them direct the attention of the jury away from, that issue as submitted in each, by the hypothesis of facts concerning the existence of the stop sign and Otto’s acts relative thereto. Neither are the instructions argumentative or unduly repetitious, nor do they give the jury a roving commission, as claimed by plaintiffs.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    Henry F. FREED and Sophia W. Freed, on behalf of themselves and all other property owners and taxpayers of the St. Joseph Levee District of Buchanan County, Missouri, who are similarly situated, Respondents, v. Ben FEENEY, Appellant, and St. Joseph Airport Levee District of Buchanan County, Missouri, et al., Defendants.
    No. 49914.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.
    Dan Hale, Strop, Watkins, Roberts & Hale, St. Joseph, for intervening appellant, Ben Feeney.
    David R. Clevenger, Platte City, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for respondents Henry F. Freed and Sophia W. Freed.
   PRITCHARD, Commissioner.

In this class action for a declaratory judgment, plaintiffs were successful in obtaining a declaration that 1,621.09 acres of land, owned and used by the City of St. Joseph, Missouri, as a municipal airport, lying within 3,285.72 acres total of the newly formed St. Joseph Airport Levee District of Buchanan County, Missouri, are subject to special taxes and assessments, including taxes levied for organization, repair, construction and maintenance of works and improvements, levied against said property, and that the City of St. Joseph is liable for the levies imposed upon its property situated within the Levee District.

We have jurisdiction by reason of the fact that the City of St. Joseph, by bond issue or otherwise, will be liable for approximately one-half of $120,000, which must be paid as the Levee District’s portion (for rights of way and other costs) before an additional estimated $1,500,000, now available by appropriation, will be expended by the United States Corps of Engineers under congressional financial commitments of the Pick-Sloan Plan for construction of the airport levee.

The position of the intervening defendant, Bernard Feeney, sole appellant here, is that the trial court erred in granting relief to the plaintiffs as prayed for the reason that there was no statutory authority to include the St. Joseph Airport (the City’s property) in the St. Joseph Levee District.

The chronological order of the events leading up to the present litigation is as follows:

On October 13, 1961, by Special Ordinance No.'16776, the city officials of St. Joseph (then concededly a city of the first class) were authorized to sign, on behalf of the City, the Articles of Association of the St. Joseph Airport Levee District, which was organized on December 15, 1961. By decree of the Circuit Court of Buchanan County, made pursuant to'proceedings under Section 245.010 et seq., RSMo 1959, V.A.M.S., a deed of incorporation to said Levee District was entered on February 2, 1962.

The action under said Special Ordinance No. 16776 is claimed by respondents to have been taken by the City of St. Joseph under the authority of Section 246.270, V.A.M.S. (L.1961, p. 446 § 1-3) which became effective on October 13, 1961. This section of the statutes permits property owned by a city, in this case located outside the city limits, to be included in an existing or proposed drainage or levee district, by ordinance consenting thereto, upon a finding after hearing and notice thereof, that the drainage or levee district will protect such property from overflow or other waters or will provide for the drainage thereof, and that it is to the. best interests of said city and its inhabitants to adopt such an ordinance. The statute further makes the city liable for any special taxes or assessments, including taxes levied for the construction, repair and maintenance of works and improvements levied against the city’s property in the district to the same extent as if the property were owned by a private person, and the city shall be considered a landowner for all purposes, including for the purposes of determining the sufficiency of any articles of association, petition or other instrument executed by such city, and for election voting purposes held within such drainage or levee district.

On October 31, 1961, by Special Charter Election held for that purpose, and by vote of 6,385 for and 5,421 against, the people of St. Joseph, Missouri, adopted the Charter form of government. There are certain sections of the Charter which are claimed by respondents. to be relevant to this controversy as follows:

“Section 2.13 POWERS. Without limitation of the powers conferred upon the City by Section 1.3 of Article I of this charter, or by any other provision hereof, the Council shall have power by ordinance not inconsistent with this Charter to do, but shall not be restricted to, the following:
******
(30) Co-operate, or join by contract or otherwise, with other cities, with counties, states, the United States, or other governmental bodies, singly or jointly or in districts or associations for promoting or carrying out any of the powers of the City, or for the acquisition, construction or operation of any property, works, plants or structures convenient or necessary for carrying out any of the purposes or objects authorized by this charter.”
“Section 18.19 PUBLIC IMPROVEMENTS IN PROCESS. Public improvements for which proceedings have been initiated under prior charter provisions may be carried to completion as nearly as practicable in accordance with the provisions existing at the time of commencement of the proceedings.”
“Section 20.2 ORDINANCES TO REMAIN IN FORCE. All ordinances, regulations and resolutions in force at the time this charter takes effect, which are not inconsistent with the provisions of this charter, shall remain and be in force until altered, modified or repealed by or under authority of this charter or ordinance.”
“Section 20.5 CONTINUANCE OF ■CONTRACTS, PUBLIC IMPROVEMENTS AND TAXES. All contracts entered into by the City, or for its benefit, prior to the taking effect of this •charter, shall continue in full force and ■effect. Public improvements for which legislative steps have been taken under 'laws existing at the time this charter takes effect may be carried to completion as nearly as practicable in accordance with the provisions of such existing laws. All taxes and assessments levied or assessed, all fines and penalties imposed, and all other obligations •owing to the City which are uncollected at the time this charter becomes effective, shall continue in full force and effect and shall be collected as if no •change had been made.”
“Section 21.1 CERTIFICATION OF ELECTION. In the event that this ■charter is approved by the voters, as 'herein provided, the results of said election shall be duly certified by the Mayor, and the Mayor and the Council shall take all necessary steps for the establishment, filing and recording of this charter. This charter shall, in such event, become in full force and effect for the purpose of carrying out the time schedule herein provided.”

Without setting it forth in full, we mention that Section 21.2 of the Charter provides that the Mayor and Council and other elective and appointive officials shall continue to hold office and exercise their powers until the third Monday in April, 1962.

It is seen from the foregoing events that prior to the time that the Levee District was organized (December 15, 1961) and prior to the time it was incorporated by court decree (February 2, 1962), St. Joseph had become a Constitutional Charter City under Const.Mo., Art. 6, § 19, V.A.M.S., after the adopting vote of its people on October 31, 1961.

Appellant apparently claims that the adoption of the charter form of government by the City subsequent to the date Ordinance No. 16776 was enacted cut off any power of the circuit court to proceed further in establishing the Levee District and including therein the City’s airport property under said Section 246.270. Contrary to this, respondents contend that since the proceedings to make the City’s airport a part of the Levee District was begun at a time when the statute, Section 246.070, was applicable, the City was entitled to go forward thereunder; that when the charter became effective it was subj ect to such proceedings as had already been commenced under the previous ■ form of government.

Respondents’ contention is correct. The Charter Commission .-which prepared the provisions of the charter for submission to the voters very carefully made provisions that the antecedent acts of the City would be carried out. See Section 18.19 above, to the effect that Public Improvements in Process may be carried to completion; Section 20.2, that ordinances not inconsistent with the charter shall remain in force; and Section 20.5, that contracts, public improvements and taxes shall be carried to completion as nearly as practicable in accordance with the provisions of laws existing at the time the charter takes effect. See 62 C.J.S. Municipal Corporations § 437c, p. 838. It is clear from the above charter provisions that the intention was to continue the ordinances governing the City until such time as they might be modified, codified or expressly repealed. The adoption of the charter did not have the effect of repealing any pre-existing ordinances, including the above-mentioned Ordinance No. 16776 which initiated the proceedings under Section 246.270, RSMo 1959 (Supplement, L.1961, p. 446, §§ 1-3), which was then effective.

It follows, then, that the Circuit Court initially had jurisdiction to proceed under said Section 245.010 et seq., RSMo 1959, V.A.M.S., to a final decree of incorporation of the Levee District, which was done. Such jurisdiction could not be divested under the facts of this case by a change in the form of government of the City of St. Joseph. An analogous situation was presented in the case of State ex rel. Renick v. St. Louis County Court, 38 Mo. 402, where the County Court had statutory jurisdiction to inquire whether any person in the county was so addicted to habitual drunkenness as to be incapable of managing his affairs, and in such cases to appoint a guardian. After the County Court had initiated proceedings in such a case, a statute was enacted giving the Probate Court like jurisdiction. The court held, 38 Mo. loc. cit. 407, “Where a tribunal originally obtains and exercises jurisdiction, that jurisdiction will not be overturned and impaired by any legislative enactment unless express prohibitory words are used.” See also State v. Jaeger, 157 Mo.App. 328, 138 S.W. 345, 349, where it was said, “When the jurisdiction of a court is exclusive and such jurisdiction had once lawfully attached, it cannot be ousted by subsequent events or facts arising in the case, but the court may proceed to final judgment unless some constitutional statute operates to divest that particular court of its jurisdiction.”

Along the foregoing line of authority for continuing jurisdiction is the case of State ex rel. Collins v. Rooney, 361 Mo. 389, 235 S.W.2d 260, cited and relied upon by respondents. There, the North Kansas City Levee District was organized in 1909, and its existence was extended for 25 years in 1934. 177 acres of the 2,585 acres of the District were annexed to Kansas City on January 1, 1950, and also in 1950 a decree under an amended plan of reclamation of the District, under the Pick-Sloan Plan, was. entered upon a petition therefor which was. filed March 18, 1959. It was held that the Circuit Court of Clay County had jurisdiction and authority to proceed in accordance with the amended plan for reclamation as approved by its decree and that the annexation of a portion of the District by Kansas City did not take away the District’s constitutional and statutory powers, the District having been in existence for over 40 years without any of its territory being in Kansas City.

Inasmuch as the proceedings here were begun under a valid statute and a valid ordinance, and since the new charter provisions retained the existing ordinances of the City of St. Joseph, the Circuit Court of Buchanan County had jurisdiction to enter its decree incorporating the Levee District, including therein the lands belonging to the City, pursuant to Section 245.010 et seq. RSMo 1959, V.A.M.S., and subjecting such lands to the taxes and assessments of the Levee District.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM:

The foregoing opinion by PRITCHARD* G, is adopted as the opinion of the Court.

All of the Judges concur.


author: WESTHUES, Special Commissioner.

text:
      Marie H. DONOHUE, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.
    No. 49741.
    Supreme Court of Missouri, Division No. 2.
    Dec. 9, 1963.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 13, 1964.
    John E. Bardgett and Raymond B. Car-leno, Clayton, for appellant.
    Vernon Riehl, St. Louis, for defendant (respondent). •" J •
   WESTHUES, Special Commissioner.

This is an appeal by Marie H. Donohue, plaintiff-appellant, from a judgment in favor of defendant-respondent, St. Louis Public Service Company, in a wrongful death action instituted by Mrs. Donohue for $25,000.

An abbreviated transcript was filed in the case which we find sufficient to present the one and only vital issue on this appeal. The ultimate question presented is the effect of a judgment or decree rendered by a court of equity in a proceeding authorized by Sec. 507.060, V.A.M.S. The respondent St. Louis Public Service Company filed an action asking that Marie H. Donohue personally and as executrix of her husband’s estate be required to interplead in the case to determine which of two actions she should be permitted to prosecute: One, an action for the wrongful death of her husband alleged to have been caused by personal injuries sustained when one of defendant’s busses struck her husband; the other, an action for damages for personal injuries which her husband sustained in the same occurrence, which suit had been filed by her husband while living and which had been revived by Mrs. Donohue acting as executrix.

In the case filed by the St. Louis Public Service Company, wherein the court was asked to determine “which of said defendants shall be forever barred from further action against the St. Louis Public Service Company,” the court entered a decree which read in part: “It is further ordered, adjudged and decreed that the said personal injury action, Cause No. 97807-D, Division No. 1 be and the same is forever barred costs assessed against defendant Marie H. Donohue as Executrix of the estate of Edgar R. Donohue.”

Thereafter, Mrs. Donohue, as executrix of her husband’s estate and with consent of the probate court, dismissed the damage suit which had been filed by her husband.

When the case for wrongful death came on for trial, the respondent St. Louis Public Service Company filed an answer wherein it denied that there was a causal connection between the injuries sustained and the death of Mr. Donohue. Appellant Mrs. Donohue filed a motion to strike that part of the answer. The trial court denied the motion. The cause was submitted to a jury to which the court give an instruction, No. 13, at respondent’s request and over the objection of appellant. It reads:

“The Court instructs the jury that in regard to Instruction No. 2 even though you find that plaintiff’s decedent was injured at the time of the occurrence mentioned in the evidence, yet if you find that plaintiff’s decedent would have died of cancer when he did and that his death was not accelerated by such injuries, if any, then plaintiff cannot recover herein and your verdict must be for the defendant.”

Appellant says that the question of whether there was a causal connection between the injuries and the death of Mr. Donohue was settled by the decree in the equity case; that, therefore, the trial court erred in not sustaining the motion to delete that defense from respondent’s answer; further, that the giving of instruction No. 13 was error.

Respondent says that the fact issue of whether Edgar R. Donohue died as a result of the injuries sustained was not determined by the decree of the court in the equity action. Respondent cited as authority the cases of Plaza Express Company v. Galloway, 365 Mo. 166, 280 S.W.2d 17; Wallace v. Bounds, Mo., 369 S.W.2d 138; Harris v. Goggins, Mo.App., 363 S.W.2d 717; and Showen v. Metropolitan St. Ry. Co., 164 Mo.App., 41, 148 S.W. 135. The Showen case was later overruled in part. See Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155, 1. c. 156, and Heil v. Rule, 327 Mo. 84, 34 S.W.2d 90.

At the time the respondent St. Louis Public Service Company filed its petition in the nature of a bill of interpleader, there were, as noted supra, two actions pending against the respondent arising out of the same occurrence: One was filed by Edgar R. Donohue on January 25, 1957, to recover damages alleged to have been caused by the negligence of the respondent on November 2, 1956. When Edgar R. Donohue died, the action was revived. The other action was filed on June 7, 1957, by appellant, as the widow of Edgar R. Donohue, for wrongful death alleging that the injuries sustained in November, 1956, caused the death of Edgar R. Donohue.

In such circumstances, the respondent was in danger of being subjected to double liability. Plaza Express Company v. Galloway, 365 Mo. 166, 280 S.W.2d 17; Harris v. Goggins, St. Louis Court of Appeals, 363 S.W.2d 717, which case is now pending in the Supreme Court en Banc.

The situation was such that respondent was authorized by virtue of Sec. 507.060, supra, to file an action in the nature of a bill of interpleader. The purpose of the petition was to compel the plaintiffs in the damage actions to interplead to the end that the court would determine which of the two plaintiffs would be permitted to prosecute his claim and which of the two would be barred from further proceedings with his action.

It is well settled that an action for personal injuries may be revived in case of plaintiff’s death unless the death is the result of or is caused by the injuries for which the damage action was filed. The cases cited supra so hold. Furthermore, such is the provision of Sec. 537.020, V.A. M.S.

In the Plaza Express Company case, supra, this court en banc held that a defendant against whom two actions for damages arising out of the same occurrence are pending may file an interpleader suit to avoid double liability. In that case, it was the opinion of the court that in such a proceeding the questions of which action may be barred and which action may be prosecuted may be determined. The majority of the members of the court, in the majority opinion, held that the question of fact in such a case whether the death of the injured party was caused by the injury may be decided by the equity court without the aid of a jury. Three of the judges did not agree and Judge Hollingsworth wrote a dissenting opinion wherein he stated that the parties were entitled to have such a question of fact decided by a jury.

The situation in the Plaza Express Company case was identical to that in the case now before us. In each case, the injured party died. In each case, two suits for damages were filed against the party who had allegedly caused the injury: One for damages for personal injuries; the other, action for wrongful death. In such a case, the parties in interest as plaintiffs may not be and often are not the same. However, under the established law the action for personal injuries does not survive in case the injured party dies as a result of the injury. If the injured party dies from other causes, the action survives. The question is, by what authority or under what circumstances may the action for personal injuries be barred from further prosecution? The answer is obvious. It is only upon a finding that the death of the injured party was caused by the injuries.

Sec. 507.060, supra, provides a remedy for a defendant to avoid double liability in such cases. The case of Harris v. Goggins, supra, is a case which illustrates how a defendant may be exposed to double liability unless the defendant institutes a proceeding authorized by Sec. 507.060, supra.

A decree by a court of equity barring the personal injury case from further prosecution must of necessity be based upon a finding that the injury caused the death of the injured party. If that be true, then the issue of fact has been determined and the decree is binding on both the plaintiff and the defendant. 50 C.J.S. Judgments § 712, pp. 168-182; Plaza Express Company v. Galloway, 365 Mo. 166, 280 S.W.2d 17, 1. c. 25(14). Therefore, in the trial of the case for wrongful death the issue of whether the injury caused death should not be submitted to a jury.

Respondent St. Louis Public Service Company contends, and the record shows it to be a fact, that the court in the equity case entered the decree with the consent of all parties. Respondent says that this amounted to an election to abandon the personal damage action and to prosecute the death action; further, that therefore the appellant may not rely upon the decree in the equity case as a determination of the issue of whether the injury caused death. To this we cannot agree. Respondent St. Louis Public Service Company instituted the proceeding in the equity court for the very purpose of having that court say to one of the plaintiffs that further proceedings in his case were barred. • As we indicated supra, a personal injury action survives unless the injury caused death. Such an action may not be barred legally unless there is an adjudication that death was the result of the alleged injury. If it were otherwise, a defendant, as in this case, could by the equity action for.ever bar the personal injury action and then in the trial of.the death case contend and have a jury find that death was in fact not caused by the injury. That would be leading the parties plaintiff into a trap. A defendant could ■thereby avoid liability for his negligence by •inconsistent judgment. This should not be and we are of the opinion that it is not the •law. It would permit a defendant to use the •proceedings in equity as a weapon of avoiding total liability whereas the proceeding should be employed only in avoiding double liability.

Respondent cited the case of Wallace v. Bounds, supra, in support of its position. In the Wallace case, a single petition was filed in two counts: one count in damages for personal injuries; the other for wrongful death. This court held both actions could not be maintained and the defendant •was entitled to require the plaintiff to elect. The case is not in point on the question before us.

The fact that the decree in the equity action was entered by consent of the parties makes it no less, binding on all of the parties in the case. 49 C.J.S. Judgments § 178, pp. 314-317.

We are not ruling the question of what the effect of a decree in an equity action such as this would be if the court by its judgment had barred the death action and permitted the personal injury action to proceed. Our ruling is that the court in the equity action by its decree in barring the prosecution of the personal injury action necessarily found as a fact that the injury did cause death. Otherwise, the action for damages for personal injuries could not be legally barred.

The judgment of the trial court is hereby reversed and the cause remanded for further proceedings consistent with the views herein expressed.

It is so ordered.

PER CURIAM:

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: ROBERT R. WELBORN, Commissioner.

text:
    Thomas W. McMAHON, Jr., Plaintiff-Appellant, v. The MAY DEPARTMENT STORES COMPANY, Defendant-Respondent.
    No. 49938.
    Supreme Court of Missouri, Division No. 1.
    Dec. 9, 1963.
    Rehearing Denied Jan. 13, 1964.

      Edward O. Hancock, St. Louis, for appellant.
    George E. Lee, St. Louis, Carter, Bull, Baer, Presberg, Lee & Stanard, St. Louis, of counsel, for respondent.
   ROBERT R. WELBORN, Commissioner.

This lawsuit arose out of a default judgment obtained by The May Department Stores Company against appellant Thomas W. McMahon, Jr. and a garnishment issued in aid of execution upon such judgment. The judgment in the original action was for merchandise sold by Famous-Barr Company, the name under which May does business in St. Louis, to the appellant’s former wife subsequent to their divorce. The petition in the present case is in three counts. In Count I appellant sought to set aside the default judgment on the grounds that it had been procured through a fraudulent return of service made by an employee of respondent. In Count II he asked $5,000 actual and $25,000 punitive damages alleged to have been suffered “by reason of defendant by its attorneys, agents and employees making, aiding and abetting a false return and obtaining said judgment.” In Count III he sought the same amount of damages for the action of respondent in “wrongfully ordering garnishment proceedings in an effort to collect the judgment based upon said false return.”

Count I was tried by the court which found the issues against the appellant. Finding that Counts II and III were dependent upon appellant’s prevailing in Count I, the court entered judgment against the appellant on all three counts. This appeal is from such judgment. In view of the amounts sued for, we have jurisdiction of the appeal.

Appellant and his wife Marion opened a charge account at Famous-Barr Company in October, 1956. At that time they resided at 1521 Oriole Lane in St. Louis. In May, 1958, they moved to 8610-a Frost Avenue in Berkeley, St. Louis County. One charge plate issued in connection with the account in the name of Mrs. Tom W. McMahon.

In May, 1959, appellant and his wife separated and he moved to his parents’ residence at 7828 Stanford in University City. Marion continued to live at 8610-a Frost until sometime in March, 1961. On June 2, 1959, she filed suit for divorce in the St. Louis County Circuit Court. Near that date a statement was received by appellant from Famous-Barr showing $43.44 owed on the account as of May 17, 1959. Appellant asked his father to pay Famous-Barr this amount on his behalf and he did by check dated June 8, 1959. According to appellant’s father, he told the person to whom he gave the check that “the account was closed as of this date.” Appellant stated he also addressed a letter to Famous-Barr stating that the account was closed, that he and his wife were separated and that he would pay no more on it. Such letter was not found in Famous-Barr’s files. Appellant also said that he told his wife the account was closed and that she would get in trouble if she should attempt to use it. However, he made no effort to obtain the charge plate from her.

A divorce was granted Marion on January 28, 1960. Between the time of the separation and the divorce the Famous-Barr account had been inactive. However, beginning in January, 1960, Marion began to make purchases which were charged to the account. The charge plate was used and she signed the charge slips for the purchases, “Mrs. T. W. McMahon.” As the balance due on the account increased without payment being made, employees in the credit department of Famous-Barr made efforts to obtain payment. Various form letters concerning the account were sent. On June 2, 1960, Mrs. McMahon told an employee of Famous-Barr in a telephone conversation that she had been in the hospital for a week and had been unable to get the bill straightened up. She stated that she would send a check next week. Between May 17 and July 17, payments of ■$30.00 were made on the account. When no further payment was received, additional letters were sent to the Frost Avenue address. To whom the letters were addressed does not appear. In November, 1960, the account was turned over to Mr. Frank, an attorney employed by Famous-Barr.

Famous-Barr’s records showed that, in a telephone conversation on November 17, 1960, Mrs. McMahon informed Gertrude Niehoff, a telephone collection clerk employed by Famous-Barr, that she was divorced, that she was responsible for payment of the account and would pay the bill. She also stated that she would return the charge plate. However, no payments were made and, on December 15, 1960, Frank filed suit on behalf of respondent against Thomas W. McMahon, Jr. and Mrs. Tom W. (Marion) McMahon, Jr. for $184.26, the balance due on the account as of November 17, 1960. The petition filed in the Second District Magistrate Court for St. Louis County showed the address of defendants as 8610-a Frost Avenue, Berkeley. Summons issued January 5, 1961, returnable February 3, 1961, and was placed in the hands of a deputy constable. After making three or four visits to the Frost Avenue address and finding no one there and after being informed by someone in the building that the McMahons had moved, the constable made a “not found” return. On March 7, 1961, a telephone call by a Famous-Barr employee located Mrs. McMahon at the Frost address. This information was conveyed to Frank and, on March 10, an alias special summons, returnable April 7, 1961, was issued by the clerk of the magistrate court. Summons was directed to “Special Process Server M. Rau”, an employee of Famous-Barr, who was at that time an outside collection man. One of his duties was acting as special process server when called upon. During March, 1961, he served fifteen summonses in St. Louis and St. Louis County in actions by Famous-Barr.

Rau made some unavailing trips to the Frost Avenue address. He returned on Saturday, March 18, at a time which he placed at sometime in the afternoon, and knocked on the door at 8610-a Frost. According to him, a man came to the door and Rau said, “Tom W. McMahon, Jr?” and the man said, “Yes.” Rau told him he had a summons for him and handed him two copies, one for himself and one for his wife. While he was doing so, Rau saw a woman in the apartment whom he identified as Mrs. McMahon. He noted that she was pregnant and he remarked about preparations apparently under way by the occupants to move. According to Rau, no other conversation passed and he returned to his automobile and made a note of the fact that service had been made. On April 4, 1961, he signed the return, showing service of the summons by delivery of a copy to appellant and leaving a copy for Mrs. McMahon with her husband at her husband’s abode. The return was prepared by Frank and signed and sworn to by Rau before Woodrow Whitlow, a notary public and credit manager for Famous-Barr.

As will be more fully discussed below, appellant strenuously denies that he was the person served by Rau. On the basis of Rau’s return and in the absence of any appearance by the McMahons, a default judgment was entered on behalf of respondent in the magistrate court on April 7, 1961, in the amount of $184.26 and costs.

Around the end of March, 1961, Mrs. McMahon, who had by then remarried to a man named Whitehurst, moved from the apartment at 8610-a Frost. After the judgment had been recovered, efforts were made by the Famous-Barr credit department to locate the McMahons. Apparently a letter of some sort was addressed to appellant, on April 14, 1961, at McDonnell Aircraft Corporation where he was then working. However, a notation in the records on April 21 states “not at McDonnell Aircraft.” A telephone. call to a former neighbor at the. Frost Avenue address provided the information that Mrs. McMahon had moved to Florissant and might be located there under the name of Whitehurst.

In May, an employee of Famous-Barr called the appellant’s mother, Mrs. Gladys McMahon, with whom appellant was living at the Stanford Avenue address. Mrs. McMahon’s name had been given as that of appellant’s nearest relative in the credit application made in 1956 and her address was the same as at that time. The caller told appellant’s mother about the account. She informed the caller that appellant and his former wife were divorced. Word was left for appellant to call a Mrs. Ploesser at Famous-Barr. On May 15, 1961, appellant did so and told Mrs. Ploesser that he .was divorced in 1960, that he paid the balance due on the bill at that time and was not thereafter responsible for the account. He also told her that a letter had been written asking that the account be closed. According to appellant, Mrs. Ploesser did not tell him that judgment had been taken on the account. Mrs. Ploesser stated that she did not know of the judgment at that time.

Subsequent calls located Marion. According to Famous-Barr records, they were informed that Marion had been married to Kenneth Whitehurst for several months and that she was just home from the hospital with a new baby. On May 29, a Famous-Barr employee talked to Marion, then living at 1705 Fenmore in Florissant. She told the person calling her that she had no intention of paying the bill and that she was just home from the hospital with a new baby.

The record is silent as to further activity until June 7 when Frank filed a memorandum in the magistrate court requesting the issuance of execution, with garnishment summons, directed to McDonnell Aircraft Corporation, garnishee of appellant. Execution and summons of garnishee were issued and summons served on McDonnell on June 16. After the summons had been served, appellant, who was employed as an engineer at McDonnell, was called to the personnel office by Mr. Ker. According to appellant, at that time he first learned of the suit and judgment. He explained to Mr. Ker that the indebtedness represented purchases by his former wife from whom he had been divorced and that he did not believe he was responsible for it. He told Ker he would have his attorney look into the matter. Appellant then got in touch with his attorney who in turn got in touch with Frank. Appellant’s paycheck was held by McDonnell until June 21 when Frank called and said that the garnishment would be released. On June 23, 1961, Frank requested the magistrate to give “full release to the garnishee” and copy of the release was delivered to McDonnell and placed in appellant’s personnel file along' with the garnishee summons. This suit was filed August 4, 1961.

Respondent has moved to dismiss the appeal on the grounds that the points, relied upon, as stated in appellant’s brief,, are insufficient under Civil Rule 83.05, V.A. M.R. Appellant’s theory of the appeal is-that the finding of the trial court is against the law and the evidence and that, under Section 510.310, RSMo 1959, V.A.M.S., the-appellate court in a non-jury case was required to review the case upon both the law and the evidence. See Civil Rule 73.01,. V.A.M.R. “On an appeal in an equity case, such as this, the appellate court reviews the whole record, determines the weight and value of the evidence, and reaches its own conclusions as to the facts,, giving due deference to the findings of the chancellor who saw the witnesses and heard their testimony. Botto v. James, Mo.Sup., 209 S.W.2d 256; Mueller v. Mueller, Mo.Sup., 318 S.W.2d 365. But the appellate-court performs the above functions only in-respect to the specific matters urged by appellant as constituting error. It does not review the whole case on its own initiative to determine what result it would have-reached if it were sitting as the trial' judge.” Schlanger v. Simon, Mo.Sup., 339 S.W.2d 825, 828. We, therefore, must examine appellant’s assignments of error. In-his brief, appellant sets out his “POINTS RELIED ON” as follows (omitting citations) :

“The Court erred in its finding that the judgment is valid and binding.
“1. The final judgment was not conclusive proof of probable cause.
“2. The evidence showed that the account was not chargeable to plaintiff.
“3. The evidence was sufficient to rebut and overcome the presumption of probable cause resulting from the final judgment.
“4. The evidence was sufficient to rebut and overcome the presumption that plaintiff was served with summons.”

Although these points might have been more definitely related to alleged error on the part ■of the trial court, they are not mere abstract 'statements. They are related to the action of the trial court which the appellant questions and the gist of the appellant’s contentions may be derived therefrom. Therefore, the motion to dismiss on such grounds is overruled.

Respondent also moves to dismiss the appeal on the grounds that the points relied on ■do not, in any event, state grounds for reversal of the trial court’s judgment. As hereafter appears, we agree with this contention as to some of the points. However, others do present sufficient grounds and the motion to dismiss is overruled.

In our review, we will look first at appellant’s point 4, “The evidence was sufficient to rebut and overcome the presumption that plaintiff was served with summons.” Insofar as we can find, the trial court, in reaching its conclusion that the appellant had failed to sustain his burden of proof on the issue of fraudulent service, relied upon no presumptions. The court de- • cided the issue on the basis of the conflicting oral testimony which it heard. We will, therefore, consider this assignment as presenting the question of whether or not the evidence warrants a judgment favorable to the appellant on the issue of fraud.

The burden was upon appellant to prove by convincing evidence that the judgment was based upon fraudulent return of service. Picadura v. Humphrey, Mo.Sup., 335 S.W.2d 6, 12. In our review of this aspect of the case, we make our own determination of the facts. However, where the factual issue is one to be determined from directly conflicting oral testimony, as is the case here, we defer strongly to the findings of the chancellor on the matter of credibility. Picadura v. Humphrey, supra. His opportunity to hear the testimony directly from the witnesses and to observe their demeanor while testifying places him in a better position to weigh and assess the value of the testimony offered and to resolve the conflicting versions. Mueller v. Mueller, Mo.Sup., 318 S.W.2d 365, 369; Vest v. Bialson, 365 Mo. 1103, 293 SW.2d 369, 379, 63 A.L.R.2d 504.

Appellant stated unequivocally that he was not served with summons. Rau,. on the other hand, stated that he received an affirmative answer when he stated to the per.son who answered the door at 8610-a Frost Avenue, “Thomas W. McMahon, Jr. ?” He . stated that the man he served was similar in appearance to the appellant although he ad.mitted he could not positively identify him. On seeing the former Mrs. McMahon subsequently, he identified her as similar to the woman he saw in the apartment at the time ■of the service. He stated that the woman whom he saw at that time was pregnant and Mrs. McMahon (Whitehurst) did have a baby in May, two months later. He recalled that the occupants of the apartment appeared to be moving and apparently Mrs. McMahon did move from the apartment some time during the month of March. Rau saw Mr. Whitehurst later and stated that he was reasonably certain Whitehurst was not the man whom he served, although, again, he did not say positively that he was not.

The conflict in the testimony is clear and irreconcilable. There is little by way of circumstances which tends to lend greater weight to the testimony of one than the other. Neither was a wholly disinterested witness. No other witness testified directly on the issue.

Appellant maintains that he was never at the Frost Avenue apartment on Saturday after the divorce. He stated that he went there only to get the children and that he got them on Saturday only if it was Christmas Day. ■ His father substantiated this by stating that appellant brought the children to his home and that he “can’t say that he had seen them on Saturday unless it was Christmas or a birthday. Uusally it was on Sunday.” Appellant also testified that he did not, when he did obtain the children, enter the apartment. Rau testified that the person whom he served was inside the apartment and came to the door in answer to his knock. Appellant insisted that he always called his former wife in advance and told her when he would get the children so that they would be ready and he would not have to wait for them.

Appellant did have the right to obtain custody of the children on either Saturday or Sunday. He testified that he got them at the Frost Avenue address for the last 'time about two weeks before Easter. Saturday, March 18, the date on which Rau claimed to have made the service, was in the weekend two weeks prior to Easter in 1960.

Although Rau was not positive, he placed the time of service at sometime after noon. Appellant’s right to custody of the children was from 1:00 P.M. to 7:00 P.M. on either Saturday or Sunday. The employment records of McDonnell Aircraft showed that appellant did not work there on the Saturday in question. Appellant said that, even though he did not work on Saturdays, he did not get the children on that day, but usually set it aside for “getting done the things I have to do around the house.”

Appellant also points to his failure to take any action regarding the suit. He contracts this with his promptly consulting his attorney when he learned that his former wife had remarried, thereby affecting his alimony liability. He also points to his prompt action in getting in touch with his attorney when he learned from his employer of the garnishment.

Appellant argues that Rau refused to testify positively that appellant was the man whom he served, stating that the man was “similar” to the appellant and “about his build.” Rau also did not positively identify the woman in the apartment as Marion, nor did he positively state that Whitehurst was not the man whom he served. Of course, it was not necessary for Rau to testify positively on the matter of identification in order to give probative value to his testimony. State v. Blackmore and Godsey, 327 Mo. 708, 38 S.W.2d 32; State v. Franke, 159 Mo. 535, 60 S.W. 1053, 1054. In the latter case, the court stated: “It was by.no means necessary that any of the witnesses should positively identify defendant as the one they saw passing by in the road wagon. It sufficed that the witnesses believed that the person they saw was defendant.”

Upon our review of the evidence; we find nothing which enables us to resolve the conflict in the testimony. In such circumstances, we will defer to the trial court’s detemination of which oral evidence should be accepted and which should be 'rejected. Leimkuehler v. Shoemaker, Mo.Sup., 329 S.W.2d 726. Therefore, we would affirm the judgment of the trial court as to Count I.

In reaching this conclusion, we do not consider the evidence urged upon us by the appellant, relating to the failure of respondent’s employees to investigate more fully the information which they received concerning appellant’s divorce and his obligation to pay the account. These matters might have had bearing on the issue, in an action for malicious prosecution, of probable cause for institution of the suit on the account. As appellant points out, in a malicious prosecution action, the defendant may be chargeable with knowledge of matters which he might have ascertained by due diligence prior to bringing his action. La Chance v. National Pigments & Chemical Co., Mo.App., 104 S.W.2d 693; McAnarney v. Commonwealth Loan Co., Mo.App., 208 S.W.2d 480; Jones v. Phillips Petroleum Co., Mo.App., 186 S.W.2d 868. However, the court in its judgment on the factual issue was concerned with the existence of fraud in connection with the return of service, not with the issue of probable cause in an action for malicious prosecution. In an action to set aside a judgment for fraud, proof of lack of diligence is not evidence of fraud. Irvine v. Leyh, 102 Mo. 200, 14 S.W. 715.

As for the appellant’s point that the evidence showed that the account was not chargeable to him, we agree with respondent that a determination of this point alone in favor of appellant would not affect the judgment of the trial court. This point might have had significance had we concluded that the evidence of fraud warranted the reversal of the judgment. In that event, a meritorious defense to the original action would also have to have been shown in order to justify relief. Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031, 1037; Patterson v. Fitzgibbon Discount Corporation, Mo.App., 339 S.W.2d 301, 306. The issue of fraud having been resolved against appellant, his point 2 can avail him nothing on this appeal.

We now turn to points 1 and 4, that the judgment sought to be set aside is not conclusive proof of probable cause, and that the evidence was sufficient to overcome the presumption of probable cause resulting from such judgment. We need not consider the latter proposition. Had the matter which was heard been an action for malicious prosecution, this proposition could have been relevant. Lack of probable cause is an element of an action for malicious prosecution. Whenever the defendant in malicious prosecution has had a favorable judgment at one stage of the original proceedings, the plaintiff in malicious prosecution must generally overcome the presumption that such judgment shows probable cause for the original action. This he may do, as appellant here states, by showing that the judgment in the original action was obtained by false or fraudulent testimony, or other improper means, or that the defendant, as plaintiff in the original action, did not himself believe the facts alleged in support of his cause of action. Wilcox v. Gilmore, 320 Mo. 980, 8 S.W.2d 961, 963; Dawes v. Starrett, 336 Mo. 897, 82 S.W.2d 43; Hughes v. Aetna Insurance Company, Mo.Sup., 261 S.W.2d 942, 950. We are not here concerned with a trial, on the merits, of an action for malicious prosecution. Therefore, appellant’s evidence on this issue is not here significant.

As for the proposition that the judgment was not conclusive proof of probable cause, we have heretofore alluded to the rule which appellant would have us apply, in passing upon the action of the trial court in dismissing Counts II and III of his petition. We find difficulty in the application of this proposition to Count II of the petition. In his brief, appellant describes his cause of action as one for malicwous prosecution in three counts. Our consideration of Count I has shown that it stated an action to set aside a judgment for fraud in the service of process. The language of the petition does not support the appellant’s position that Count II is an action for malicious prosecution. By its language, Count II is an action for damages for the fraudulent service of process, charged in Count I. As such, upon failure of his proof as to Count I, Count II of the appellant’s petition also failed. The issue of probable cause would not be involved and the judgment in the suit to set aside the original judgment for fraud would be res judicata of the claim of fraud under Count II. Davis v. Southwestern Bell Telephone Co., Mo.Sup., 333 S.W.2d 31, 35.

The difficulty with respect to Count II as stating an action for malicious prosecution arises from the fact that there had been, at the time of filing the action, no termination favorable to the appellant of the originál action and there is not one nowi That the action upon which the claim of malicious prosecution is based must have terminated favorably to plaintiff in the malicious prosecution action is well established. This is an element of the cause of action, along with the initiation of the proceedings by or at the instance of the defendant in the malicious prosecution, want of probable cause for the proceedings, malice and damage. Ripley v. Bank of Skidmore, 355 Mo. 897, 198 S.W.2d 861, 866; Mooney v. Kennett, 19 Mo. 551; Sharpe v. Johnston, 76 Mo. 660; Higgins v. Knickmeyer-Fleer R. & I. Co., 335 Mo. 1010, 74 S.W.2d 805. Any effort by appellant to state a cause of action for malicious prosecution based on the judgment in the magistrate court may well have been premature prior to his succeeding in having that judgment set aside. Zickel v. Knell, 357 Mo. 678, 210 S.W.2d 59, 3 A.L.R.2d 1304; Moffett v. Commerce Trust Co., Mo.Sup., 283 S.W.2d 591; Collar v. Peninsular Gas Co., Mo.Sup., 295 S.W.2d 88. In any event, as long as that judgment stands, it is an effective bar to an action by appellant for malicious prosecution based upon it. Mooney v. Kennett, supra; Zickel v. Knell, supra.

•Since this essential element of a cause of action for malicious prosecution under Count II is lacking, the issue of probable cause would not arise and the trial court’s dismissal of that count, however considered, .was clearly in order.

As for Count III,' based on the alleged wrongful '• garnishment, the appellant has attempted to" state h-is cause of action as one for malicious prosecution. He alleges that respondent made a full and unconditional release of the garnishment and that appellant paid no money or made no promise to do so in order to secure the release of the garnishment, and that the garnishment proceeding terminated in favor of the appellant.

Having failed in his attempt to set aside the judgment-for fraud, may the appellant still attack it under Count III of his petition in an effort to recover damages-•for the garnishment .proceedings ? We conclude that he cannot. The rule.which appellant endeavors, to apply, found in Wilcox v. Gilmore, and Dawes v. Starrett, supra, does not apply in this situation. In those-cases, the judgment which the court permitted to be attacked on the issue of probable cause was not the final judgment in the-case. In the Wilcox case, it was the judgment of the trial court which had been re-versed on appeal. In the Dawes case, the-action relied upon as evidence of probable cause and permitted to be attacked (unsuccessfully) was the return of an indictment for an' offense of which the plaintiff in-malicious prosecution was subsequently acquitted. Wilkerson v. McGee, 265 Mo. 574, 178 S.W. 471; Higgins v. Knickmeyer-Fleer R. & I. Co., supra; Laughlin v. St. Louis Union Trust Co., 330 Mo. 523, 50 S.W.2d 92, all involved an attack on a judgment which was not the final, decisive judgment in the original proceedings.

To permit appellant here to attack the-judgment would be to allow a collateral attack on the final 'judgment in the original cause. Having failed in his direct attack,, he should riot now be permitted a collateral one. La Presto v. La Presto, Mo.Sup., 285 S.W.2d 568, 570; 49 C.J.S. Judgments § 401, page 792 ; 30-A Am.Jur., Judgments, Section 844, page 762.

Appellant has cited one Missouri case ini which the plaintiff in a malicious prosecution ’action was permitted, in order to show lack of probable cause for the original’ proceeding, to attack, in effect collaterally, the judgment in such cause. Beatty v. Puritan Cosmetic Company, 236 Mo.App. 807, 158 S.W.2d 191, involved facts in some-respects similar to those here. Mrs: Beatty and'her husband were sued on an account owed solely by the husband. Mrs. Beatty claimed not to have been served with summons. A default judgment was taken.. Thereafter, garnishment issued on execution. Mrs. Beatty filed a motion in the justice court to quash the execution on the grounds that she had not been served. The motion was overruled and the garnishee paid into court money which he held for the account of Mrs. Beatty and the judgment was satisfied. Mrs. Beatty did not appeal from the overruling of her motion to quash the execution. Instead, three days after the judgment had been satisfied, she brought suit for malicious prosecution of the original action and garnishment. The court of appeals reversed a judgment of the trial court in favor of the defendant on 'a demurrer to the plaintiff’s evidence. The ■court held that plaintiff’s evideuce, under Wilcox v. Gilmore and Dawes v. Starrett, supra, was sufficient to overcome the presumption of probable cause, arising from the justice court judgment. The evidence ■so considered related to Mrs. Beatty’s non-liability for the account and the fact that she had so advised the defendant. The evidence was not related to jurisdictional defects which would have rendered the judgment void and thereby subject to collateral attack.

The Beatty case was followed by the Kansas City Court of Appeals in the case of Mannisto v. Rainen Furniture Co., Mo.App., 295 S.W.2d 841. In that case, both husband ■and wife were sued on a note given by the wife for a purchase for which she •alone was liable. There was valid service on both, but the wife did not inform her husband about the suit. Instead, she attempted to pay the account. Relying on the assurances of defendant’s officers that she need not appear in the suit, she did not do so and a default judgment was taken against the husband and wife. Subsequently a garnishment issued to a bank in which they had a joint account. The husband, claiming ignorance of the matter until the garnishment, paid the judgment and the garnishment was released. He then brought an action for malicious prosecution and obtained a judgment for damages which was affirmed on appeal. In its opinion, the court stated (295 S.W.2d 845):

“In the instant case plaintiff alleged in his amended petition, and his evidence ■showed, that the defendant herein obtained a default judgment against him and his wife in the prior action before a magistrate. No appeal was taken from that judgment. Plaintiff recognized that he had the burden of overcoming the effect of the judgment against him on the issue of probable cause. He alleged, and undertook to prove, that the judgment was procured by fraud.”

The court of appeals concluded that the evidence was sufficient to establish fraud in the procurement of the judgment.

Aside from the fact that in neither of these cases was the element of favorable termination of the original action present, we find no other cases in this state in which the final, outstanding judgment in the original proceeding has been permitted to be attacked in a malicious prosecution proceeding in order to overcome its effect on the issue of probable cause.

We are of the opinion that the rule which appellant would apply here properly may be applied only as to a judgment which is not the final judgment in the original proceedings and has no application when the judgment attempted to be attacked is a standing, final judgment. To uphold appellant’s contention would permit contradictory judgments on the same issue to stand, the result sought to be avoided by the requirement of favorable termination of the original proceeding as a condition for the bringing of an action for malicious prosecution. That rule “rests on the ground that the court will not tolerate inconsistent judgments upon the same question between substantially the same parties.” 34 Am.Jur., Malicious Prosecution, Section 27, page 719. Such a situation should not be permitted under the guise of showing want of probable cause. Insofar as the Beatty and Mannisto cases are contrary to this conclusion, they should not be followed and are hereby overruled.

The fact that the judgment in this case was by default would not permit the appel-pellant to take advantage of the right which has been granted to attack the original judgment if it has been entered in ex parte proceeding's. See Ripley v. Bank of Skidmore, supra. By refusing to set aside the judgment for fraud in the service of process, the judgment stands as one entered on valid service of process, and not ex parte. State ex rel. Gardiner v. Dickmann, 175 Mo.App. 543, 157 S.W. 1012, 1015.

We are of the opinion that the trial court, in view of its finding on Count I of appellant’s petition, with which we concur, properly dismissed Counts II and III of the petition.

The judgment is affirmed.

COIL and HOUSER, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    In the Matter of the ESTATE of Charles Edgar GARRISON, Deceased, Charles Otis Garrison, Executor. Marilyn Rae GARRISON, Novada Emma Garrison and Charles Otis Garrison, Respondents, v. Gladys Garrison HIGHT, Exceptor and Appellant.
    No. 49954.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.

      Edwin W. Wilson, Bakersfield, Cal., Jones & Jones, Kennett, for appellant, Gladys Garrison Hight.
    McHaney, Billings & Welman, Kennett, for respondents, Charles Otis Garrison, Executor, Marilyn Rae Garrison, Noveda Emma Garrison and Charles Otis Garrison.
   BARRETT, Commissioner.

Under the will of Charles E. Garrison the probate court and on appeal the circuit court have decreed, subject to a life estate in the testator’s wife, that “the successor to the descendible interest” in 40 acres of land in Dunklin County is his daughter Marilyn Rae Garrison the residuary beneficiary. Gladys Garrison Hight, a daughter by a first marriage, has appealed and contends that these judgments are contrary to the manifest intention of the testator and that, subject to her stepmother’s life estate, she should be decreed the owner of this particular forty-acre tract of land.

In article five the testator devised three specifically described tracts of land to his son Charles Otis Garrison and in article six a specifically described tract to his daughter Marilyn Rae Garrison and, as indicated, by article eight, she was also designated his residuary beneficiary. In article two there was this provision relating to the appellant: “I give and bequeath unto my daughter, Gladys Garrison, the sum of One Dollar ($1.00). This bequest is no indication of my love and affection for my daughter, Gladys Garrison, but inasmuch as she will receive at the time of my death 80 acres of land under the Last Will and Testament of my father, Robert Garrison, I have, therefore, reduced her gifts under this will.” There was no other mention or provision for Gladys in her father’s will and upon his death she did not receive 80 acres of land under his father’s will. In referring to his father’s will the testator had in mind these provisions from that instrument: “Fourth: To my son, James P. Garrison, I give, devise and bequeath twenty acres of land, it being the extreme west twenty acres of my home place in Dunklin County, Missouri ; this land is given to him for his use and benefit so long as he shall live, and at his death to he given to my granddaughter, Gladys Garrison, a child of Charles E. Garrison; * * *. Fifth: To my son, Charles E. Garrison, I give, devise and bequeath the east forty acres of lands in my home place in Dunklin County, Missouri, the same to be his absolute subject only to the life interest of my wife, Sallie Garrison; and in addition thereto I give to my son Charles E. Garrison the east half of the west half of my farm, the same to be used by him his life time, and at his death the east twenty acres above described to he given absolute to my granddaughter, Gladys Garrison, the daughter of my son Charles E. Garrison; * * (Emphasis supplied.)

Since the testator, Charles E. Garrison, did not specifically devise “the east forty acres of land,” described in his father’s will as part of the “home place,” the probate and circuit courts have decreed that it was disposed of and passed to Marilyn under article eight, the residuary clause. It is said that this construction of the will amounts to a disinheritance of the appellant, “a beloved daughter and one of his legal heirs,” and is contrary to the presumption against disinheriting heirs. It is urged that the courts’ construction places undue emphasis on the residuary clause and ignores the paramount intent of the testator and the terms of the will as a whole. V.A.M.S. Sec. 474.430; Grace v. Perry, 197 Mo. 550, 95 S.W. 875. In this connection it is said that because the testator was “mistaken as to his title to the forty acres of land here in question” the courts have erroneously held that title passed under the residuary clause. This error, it is said, is “that a mistake of fact by the testator under the law does not alter the effect of his will as to his intent and meaning.” But the crux of her appeal is the appellant’s ultimate claim that the decrees are erroneous “in that the clear intent and meaning of Charles Edgar Garrison (as expressed in article two) was that appellant would receive eighty acres of land, including the forty * * * in controversy here, at his death under the will of his father.1’ It is urged therefore that the testator’s intent and meaning should be carried out “even to the extent of implying a gift or devise" so long as that interpretation is based on and found in expressions under the will. Or finally, it is said, “(i)f the formal words necessary to vest title to the lands * * * in Appellant were omitted from the will * * * under circumstances indicating mistake as to the title, then it was error for the court not to supply such words by implication” and thus carry out the testator’s obvious intention. (Italics supplied throughout this opinion for emphasis.)

It is not necessary to consider these arguments in detail, in the absence of plain language to the contrary there is a presumption against the disinheritance of heirs (57 Am.Jur. (Wills) Sec. 1160, p. 757), and if possible a will should be so construed as to dispose of the whole estate in preference to a construction resulting in partial intestacy. Meiners v. Meiners, 179 Mo. 614, 78 S.W. 795; Smoot v. Harbur, 357 Mo. 511, 209 S.W.2d 249. But in this will Gladys is expressly excluded with the consequence that she is provided for (Guitar v. Gordon, 17 Mo. 408), and article eight in express terms in a general clause bequeaths and devises the remainder of the testator’s estate, thereby disposing of all of his property including the forty acres. Shackelford v. Fifer, (Mo.) 269 S.W.2d 30. The forty acres were a part of her grandfather’s “home place,” but her father’s will refers to “80 acres” and now, because the forty acres were once a part of the home place, it is urged that there was an express intention in- the will to devise this particular tract of land to the appellant Gladys.

But, as indicated, the appellant’s basic reliance is upon a devise “by necessary implication from his will taken as a whole.” 4 Page, Wills, Sec. 30.18, p. 119. The practical and factual difficulty with the appellant’s contention is that,, whatever her father may have intended, he made no attempt to devise this or any other property to her. And there was no attempt to incorporate the provisions of her grandfather’s will (if it were otherwise sufficient) or any other document by reference. Annotation, 110 A.L.R. 261, 268. It may well be that precedents are often not as significant in will cases as in other fields (4 Page, Wills, Sec. 30.5, p. 22); nevertheless, Clamorgan v. Lane, (1845) 9 Mo. 446, 456, has several points of similarity to the facts in this case and in many respects the court’s reasoning is still of commanding force. There the provision was “Wishing and intending as far as in me lies, to place my several children on equal footing in a pecuniary point of view, * * * and forasmuch’ as my second son and child, Henry, has been sufficiently provided for and established in the world by the will of his uncle Cyprian Martial Clamorgan, deceased, and placed in a better situation in a pecuniary point of view than I remain able to place the balance of my children, therefore I will * * * that said Henry shall receive no portion nor any part of any real estate * * Uncle Cyprian had not, as the testator stated, “provided” for Henry and it was contended that the quoted provision “either confirms the will of Cyprian, or by implication adopts its provisions” to the end that Henry shared .with his brother and sister in his mother’s real estate. While recognizing in appropriate circumstances a devise by implication, the court said, “If Apauline Clamorgan believed that her son, Henry, already had a title, independently of any act of hers, and that belief is to be fairly inferred from the language of this recital, how can it be maintained that she intended to exercise any power of disposition in his favor? Though she may be influenced in the disposition of her property, by this supposition, yet it does not follow that she intends to give to Henry that benefit, to which she .takes it for granted, he is already entitled. How are we to come to the conclusion, that in the event of the failure of Henry’s title, under the will of Cyprian, she designed and intended by her will to give him that estate ? * * * In the principie case, Apau-line Clamorgan, reciting that her son Henry had been provided for by the will of his uncle Cyprian, devised her real estate, or the principie part of it, to her other children. * * * There is a class of cases in which the testator refers to a disposition as made in his will (which in fact he has not made) and the courts have supplied such omission. The ground upon which such implications are admitted is obvious enough. Such recitals manifest an unequivocal intention to make the disposition referred to.”

In addition to the appositeness of that case, there is no ambiguity in the will-involved here, its provisions unambiguously dispose of all of the testator’s property and leave no room for the construction of a “gift by implication” which “must be founded on expressions in the will itself.” McCoy v. Bradbury, 290 Mo. 650, 235 S.W. 1047. There is here only “an erroneous recital in a will that ownership of or title to property actually belonging to the testator is in a third person” and that mere recital “cannot 'serve to operate as a devise or bequest of such property by implication.” 57 Am.Jur.J3ec. 1193, p. 784. In short, the circumstances of this case fall within what for the lack of a more precisely descriptive term may be designated as a general rule that “a recital in a will of a conveyance of land which was not in fact made, or which proved to be ineffectual * * * will not operate as a devise, but (that) the rights of persons interested must be determined-by resort to the instrument referred to.” 110 A.L.R. 1. c. 264.

Necessarily, for the reasons indicated, the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.