author: DOERNER, Commissioner.

text:
    Vito MANIACI, Plaintiff-Appellant, v. Eric J. LUECHTEFELD, Victor H. Luechtefeld, Oscar J. Luechtefeld, Roderick Baalmann and Cora Baalmann; d/b/a Forest Park Lumber and Supply Company, Defendants-Respondents.
    No. 30842.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1961.
    Application for Motion for Per Curiam Rehearing or to Transfer to Supreme Court Denied Dec. 26, 1961.

      Frank Mashak, St. Louis, for plaintiff-appellant.
    Gerritzen & Gerritzen, Al F. Gerritzen, and Ray A. Gerritzen, St. Louis, for defendants-respondents.
   DOERNER, Commissioner.

Plaintiff appeals from an adverse judgment of $37.93 in an action growing out of a disputed charge for repairs made by defendants on plaintiff’s power lawn mower.

The controversy between the parties to this litigation arose in the following manner: Plaintiff was unable to start his Pin-cor power lawn mower and took it to the defendants for repairs. Defendants were partners doing business under the name of Forest Park Lumber and Supply Company, and operated an authorized shop for servicing the above make of power mower. In brief, it was plaintiff’s contention that defendants orally agreed to put plaintiff’s mower in first class condition, including the installation of a new carburetor, for the fixed price of $24, but that when’ he later sought to obtain his mower and tendered that sum, defendants refused to deliver the mower to him unless he paid them the sum of $37.93. Defendants’ position, on the other hand, was that plaintiff wanted his mower put in first class condition; that an estimate or approximate price of $29 was quoted, but that it was agreed by the parties that such estimate would be increased if it was ascertained during the course of the repairs that new parts other than the carburetor were needed; that on disassembling the mower it was found that it was necessary to replace an oil seal, gas line, and coil; that the total charge for all of the work and parts was $37.93; and that that amount was a reasonable charge for the repairs made. After stating his version of the facts in his fifth amended petition, upon, which he went to trial, plaintiff prayed for actual damages of $125 and punitive damages of $5,000. Defendants counterclaimed for actual damages of $37.93, and (in Count II) for punitive damages of $5,000 for allegedly slanderous statements claimed to have been made by plaintiff. The jury returned a verdict in favor of defendants on plaintiff’s action, in favor of defendants for actual damages of $37.93, together with interest thereon, and against defendants on their count for punitive damages, and judgment was entered accordingly.

The principal issue presented by plaintiff’s appeal does not, however, concern what might be termed the basic controversy between the parties, but rather a collateral one. As stated, the case was tried on plaintiff’s fifth amended petition. As originally filed plaintiff’s fifth amended petition, containing only one count, included paragraphs 4, 5 and 7, in which it was alleged that after the dispute arose the defendants had wilfully refused to divulge to plaintiff the names of the persons doing business under the name of Forest Park Lumber and Supply Company; that defendants had not registered that name as required by the Fictitious Names Act, Section 417.200 et seq. RSMo 1959, V.A.M.S., but were operating illegally under a dead man’s registration of that name; and that “ *. * * as a result thereof plaintiff was obliged to expend time, effort and money to be in a position to assert his legal rights to recover his lawn mower * * * ”; and that plaintiff had not been able to determine the names of all of the persons doing business under the name of Forest Park Lumber and Supply Company until after the institution of his action. Defendants filed a. motion to strike paragraphs 4, 5 and 7 from plaintiff’s fifth amended petition, but inasmuch as the transcript plaintiff has filed with us does not set out the motion, but only recites that it was filed and sustained by the court, we are unable tQ state the grounds of the motion or the basis upon which it was sustained.

The record'Shows that-plaintiff did not amend his petition, as he might have done as a matter of course before defendants ■filed their answer and counterclaim, nor did he seek to amend the same by leave. Civil Rule 55.53, V.A.M.R. After the case was at issue by the filing of defendants’ answer and counterclaim, plaintiff, proceeded, to trial upon his fifth amended petition as it remained after the deletions. At various times during the trial plaintiff sought to refer to, and to introduce exhibits and other evidence regarding, defendants’ failure to register their trade name as required by the Fictitious Names Act, the refusal of one of the partners to inform plaintiff’s counsel of the names of all of the partners, and the efforts and expense to which plaintiff had been put in order to ascertain such information, but on objection of the defendants the court excluded all references to such matters on the grounds that they were not within the scope of the pleadings ttpon which the case was being tried. While such rulings of the trial court, singly and collectively, are assigned as error, plaintiff’s fundamental contention common to all such assignments is that the Fictitious Names Act is remedial as well as penal in nature; and that it created a new civil cause of action in plaintiff’s favor for the efforts plaintiff was required to expend and the expenses he incurred in order to identify the individuals . doing business under the trade name, due to their failure to register such information as required by the Act.

Whatever may be the merits of plaintiff’s contention as to the nature of the Fictitious Names Act, under the state of the record in this case that question is not before us arid need not be decided. When defendants’ motion to strike paragraphs 4, 5 and 7 from plaintiff’s petition was sustained, plaintiff’s cause of action based upon defendants’ failure to register in accordance with that Act, if, indeed, he had one, was thereby eliminated from the petition and was no longer an issue in the casé. The only cause of action -which remained in plaintiff’s petition, and the one upon which he proceeded to go to trial, was his claim that defendants had wrongfully refused to return his lawn mower. The issues in a lawsuit are made by the pleadings before the trial begins, and the pleadings limit the scope of the trial to such-issues. Richards v. Earls, 345 Mo. 260, 133 S.W.2d 381; Smith v. Githens, Mo.App., 271 S.W.2d 374. Obviously, - therefore, the court did not err in refusing to permit plaintiff to comment upon or to introduce evidence in support of a cause of action not within the scope of plaintiff’s petition.

Plaintiff claims that he sought leave during the course of the trial to amend his petition so as to restate the matter previously stricken, and that the court erred in refusing to permit him to do so. The record is by no means clear that plaintiff sought to amend his petition during the trial, but assuming that he did, the court did not commit error in denying the request. As the transcript indicates, and as plaintiff states in his brief, similar matter had on motion been stricken from plaintiff’s second, third, and fourth amended petitions, as well as from the fifth, on which plaintiff elected to go to trial. Courts should be liberal in permitting amendments to pleadings, but whether a particular amendment " * * * should be permitted is primarily within the sound judicial discretion of the trial judge, whose action will not be disturbed where * * * there is no showing that such discretion has been palpably and obviously abused. * * * ” Stewart v. Stewart, Mo.App., 277 S.W.2d 322, 326; Pender v. Foeste, Mo., 329 S.W.2d 656, 659. Plaintiff was not entitled to plead the same matter ad infinitum, and the court’s refusal to permit him to again do so during the course of the trial, under the circumstances of this case, was certainly not an abuse of discretion.

Plaintiff’s next assignment of error is that the court erred in excluding his exhibit No. 12 because “ * *. * It was plaintiff’s position it was a duplicate and the original need not be accounted for.” The exhibit was a copy of a letter which plaintiff’s counsel wrote to-the Forest Park Lumber & Supply Co., but it was not éx-cluded because it was a copy. The objection to its introduction which the court sustained, and properly so, was that the letter was a self-serving statement.

Plaintiff also complains of the exclusion of his exhibits 14 and 17, which were counterclaims filed by defendants at an earlier stage of the proceedings, in the second of which defendants asserted a claim for storage charges. Defendants’ claim for that item was abandoned or stricken on motion, and was not included in the counterclaim on which the case was tried. After defendants’ motion to strike had been sustained, plaintiff’s action was solely one for the wrongful and malicious conversion of his lawn mower. Defendants’ counterclaim was for the cost of the repairs they claimed to have made, and for actual and punitive damages because of slanderous statements allegedly made by plaintiff at the time he refused to pay defendants’ bill for the repairs. The fact that defendants had asserted and abandoned a claim for storage charges was not material to or within the scope of the issues on trial, and the court committed no error in excluding the exhibits.

We have some difficulty understanding plaintiff’s final assignment. Included under his assignment 6, which relates to the exclusion of exhibits Nos. 14 and 17, is the statement “Defendants were not entitled to a lien on unauthorized work.” If that statement was intended to be a separate assignment, it is only an abstract statement of law, and fails to comply with Rule 83.05(e). If it was intended to relate to the exclusion of plaintiff’s exhibits Nos. 14 and 17, there is no claim for a lien made in either of those exhibits. In fact, the only reference to a lien which we can find in the abbreviated transcript brought here is in defendants’ answer, in which they alleged that under both the Artisan Lien Statutes, Sections 430.010, 430.020, 430.040, 430.050, 430.080, as well as under a common law artisan’s lien, they were entitled to retain possession of plaintiff’s lawn mower until 'such time as plaintiff paid for the repairs they had made. However, plaintiff has not included in his transcript defendants’ evidence nor the instructions on which the case was submitted to the jury, so that we are in no position to determine what part the alleged lien may have played in the case. In any event, the matter has not been properly preserved for review in that no mention of any error regarding defendants’ claimed lien was included in plaintiff’s motion for a new trial. Rule 79.03, V.A. M.R., State ex rel. State Highway Commission v. Dockery, Mo., 340 S.W.2d 689.

The judgment should be affirmed, and the Commissioner so recommends.

PER CURIAM.

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

Accordingly, judgment is affirmed.

ANDERSON, P. J., RUDDY, J., and JOHN J. KELLY, Jr., Special Judge, concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gordon KNIGHT, Defendant-Appellant.
    No. 30835.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1961.

      F. G. Armstrong, St. Louis, for appellant.
    Daniel P. Reardon, Jr., Circuit Atty., James K. Pendleton, Asst. Circuit Atty., St. Louis, for respondent.
   BRADY, Commissioner.

We took this case upon the record during our October docket. That record discloses that in 1946 the grand jury then in session in the City of St. Louis returned an indictment against the appellant wherein he was charged with the sale to one Albert Jewell of intoxicating liquor without first having procured a license authorizing him to sell intoxicating liquor. The record does not disclose when the appellant was arrested or arraigned, but he entered a plea of not guilty in February, 1947. He was represented by counsel. In May of that same year leave was granted to the state to file a substitute information in lieu of the indictment. That substitute information differs from the charge in the original indictment only that appellant was therein charged with selling this intoxicating liquor without a license to one Leslie B. Woodward instead of to the person named in the indictment. In June of 1947 the following entry appears:

“Withdraws former plea. Pleads guilty to Refilling Container from which Whiskey has been removed. Adjudged to pay a fine of One Hundred ($100.00) Dollars. Fine and costs paid. Defendant discharged.”

So far as the record discloses, nothing further happened in this case until November 14, 1960, when appellant was granted leave to file “A Motion to Vacate Sentence.” By this motion, the appellant requested the trial court to “ * * * vacate and to set aside the judgment and sentence heretofore entered in this cause as error coram nobis.” As it appears from that motion, the appellant’s theory is threefold. First, he urges that there is no provision of our statutes to support the charge to which he pleaded guilty for the reason that § 4911, R.S.Mo.1939, now section 311.360 RSMo 1959, V.A.M.S., insofar as it prohibits the action to which he pleaded guilty, applies only to licensees, and it affirmatively appears from the indictment and substitute information that the appellant was not a licensee. In support of this contention, appellant calls attention to the fact that while Regulation 13(f) as promulgated by the Supervisor of Liquor Control of this state prohibits the refilling of a bottle from another container, these regulations apply only to licensees, and moreover the breach of such a regulation is not a crime under our statutes, although it may be grounds for action by the Supervisor to suspend or revoke the license. In the second place, appellant urges that if there is such a crime prohibited by our statutes, it is selling the liquor used to .refill the bottle or contained in the refilled bottle, and that the information does not charge him with any sale. In the third place, he urges that the action to which he pleaded guilty is not a lesser included offense to that with which he was charged in the substitute indictment. On December 2, 1960, the trial court held a hearing on this motion to vacate the sentence and took it under submission, granting appellant five days to file a memorandum and the state five days thereafter to .reply. On December 23, 1960, the court entered its order overruling the motion to vacate.

On the same day that the transcript was filed in this court, the appellant also filed his motion to transfer this cause to the Supreme Court of this state. Appellant’s motion to transfer is based upon the contentions contained in paragraph 6 of his amendment of motion to vacate the sentence in that his prosecution was in violation of Article I, § 17, Constitution of Missouri, 1945, V.A.M.S., for the reason that such section provides that no person can be prosecuted criminally for a felony or for a misdemeanor otherwise than by indictment or by information, and that since appellant pleaded guilty to something that is either not a crime at all or is not a lesser included offense than that charged in the indictment or information, his prosecution was by means other than an indictment or information and thus in violation of the above cited provision of the Constitution. This motion was taken with the case and since it raises the question of our jurisdiction. a matter which we would consider sua ¿ponte in any event, the appellant’s motion for transfer is now for our ruling.

This is a court of general jurisdiction, while the Supreme Court is limited to that jurisdiction granted it by Article V, § 3, Constitution of Missouri, 1945. However, the jurisdiction granted under that article and section is exclusive and among the grounds for the jurisdiction of the Supreme Court stated therein lies a case “ * * * involving the construction of the Constitution * * * of this state.” It is unnecessary in the instant case to go into the question of whether or not a “construction” of the Constitution of this state is here involved (see City of Olivette v. Graeler, Mo.App., 329 S.W.2d 275, transferred to 338 S.W.2d 827) or whether this case remains within our jurisdiction because it can be disposed of without the necessity of ruling the constitutional point appellant states in his motion to transfer and the amended motion to vacate sentence. See State v. Egan, Mo.App., 272 S.W.2d 719, at loc. cit. page 725 [10, 11, 12]. See also the cases collected in Missouri Digest, Courts, Key 231(6); Article V, § 3, Constitution of Missouri, 1945, V.A.M.S., Note 35; and see the article in 14 Law Series, Missouri Bulletin 32 and cases cited at page 35. This is for the reason that the appellant has not properly presented the constitutional question he urges in his motion to transfer. Constitutional questions must be raised at the earliest opportunity consistent with good pleading and orderly procedure, the sections of the Constitution claimed to have been violated must be specified, the point must be preserved throughout the trial, in the after-trial motions and upon appeal, City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, appeal transf. 223 S.W.2d 831; State v. Brookshire, Mo., 325 S.W.2d 497 at loc. cit. page 500 [3-7], transf. 329 S.W.2d 252; City of Olivette v. Graeler, Mo.App., 329 S.W.2d 275, transt. 338 S.W.2d 827.

The appellant’s original motion to vacate the sentence was filed on November 14, 1960, and that motion is utterly devoid of any reference to any constitutional provision either by specific citation or by such words that necessarily imply a certain provision of the Constitution. On December 2, 1960, the trial court held a hearing on that motion and took it as submitted, granting the appellant five days to file a memorandum. On December 7, 1960, the appellant filed an amended motion to vacate the sentence. This amended motion recites that it is filed by leave of court, although no such leave appears in the transcript. The amended motion sets forth allegations of a violation of the constitutional right guaranteed by Article I, § 17, Constitution of Missouri, 1945. The original motion was obviously the opening or first pleading of a procedure which is considered a new action for the purpose of revoking the judgment, Blodgett v. State, Mo., 245 S.W.2d 839, and is by nature a civil rather than criminal proceeding. State v. Cerny, 365 Mo. 732, 286 S.W.2d 804; State v. Smith, Mo., 324 S.W.2d 707. In any event, issue was joined on that pleading, a hearing held on the allegations therein and the issues submitted to the court were those raised in that pleading. Thereafter the appellant can amend only by leave of court or written consent of the adverse party, section 509.490 RSMo 1959, V.A.M.S. The record discloses neither, nor was any action taken by the State which could be said to constitute a waiver or an agreement to proceed on the amended motion. In fact, the trial court ruled upon the original motion in its order of December 23, 1960, without any mention of, or a reference to, the attempted amended pleading. Under these circumstances the appellant has failed to raise the constitutional point in any pleading except the motion to transfer, and that obviously was not his earliest opportunity. The motion to transfer is denied.

Appellant has entitled his pleading as “A Motion to Vacate Sentence” but in the body of that motion he seems to invoke a different procedure for he moves the court to vacate and set aside the judgment and sentence * * * as error coram nobis.” Of course, “The motion filed by defendant is not to be determined by the name given it, but rather upon the facts alleged and the relief sought. If the facts alleged and the relief sought entitle him to consideration of his motion on its merits, then it is reasonable and just that it be so considered, despite nomenclature.” State v. Eaton, Mo., 280 S.W.2d 63 at loc. cit. page 65 [1]; State v. Stodulski, Mo., 298 S.W. 2d 420 at loc. cit. page 422 [1, 2], However, it is not necessary for a determination of this cause to consider whether the appellant seeks to proceed in error coram nobis or if his theory is a motion to vacate the sentence as provided by Rule 27.26 V.A.M.R. In any event, neither proceeding lies in the instant case.

The appellant’s motion cannot be considered a motion within the provisions of Rule 27.26, V.A.M.R., for the simple reason that the appellant was not in custody when the motion was filed, and that rule begins with the words “A prisoner in custody under sentence * * *.” The appellant attacks a sentence which he had long since paid in full and been discharged from. In this respect the case is identical to State v. Stodulski, Mo., 298 S.W.2d 420 at loc. cit. page 422 [1, 2], To allow the application of Rule 27.26, supra, to situations where the applicant is not in custody would not only violate the plain language of that rule but also the reason and purpose of it for it is well recognized that an attack on a judgment allowed under that rule is governed by the general principles applicable to habeas corpus proceedings. State v. Rutledge, Mo., 317 S.W.2d 365; State v. Shell, Mo., 299 S.W.2d 465, cert. den. Shell v. State, 353 U.S. 967, 77 S.Ct. 1052, 1 L.Ed.2d 916, cert. den. 356 U.S. 939, 78 S.Ct. 782, 2 L.Ed.2d 814.

An attack upon a judgment after the sentence imposed thereunder has been completed must be by a motion in the nature of a writ of coram nobis, State v. Stodulski, supra; Rule 27.26, V.A.M.R. This procedure is not available to appellant in the instant cause for the reason that a writ of error or proceeding in the nature of coram nobis lies where some unknown fact, going to the right of the court to proceed, entirely defeats the power of the court to attain a valid result in the proceeding. If the facts alleged to support the writ are disclosed on the face of the record, the error, if there is any, is one of law and coram nobis will not lie. State v. Campbell, Mo., 307 S.W.2d 486, at loc. cit. page 489 [1, 2], cert. den. 356 U.S. 922, 78 S.Ct. 708, 2 L.Ed.2d 718. In the instant case, the facts relied upon by the appellant, the charge and the plea, are apparent from the face of the record. Moreover, it has been specifically held that error coram nobis will not lie to set aside a conviction on the ground that the information does not support the verdict. State v. Smith, Mo., 324 S.W.2d 707.

The .judgment of the trial court should be affirmed. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The motion to transfer to the Supreme Court is denied. The judgment is affirmed.

ANDERSON, P. J., RUDDY, J., and JOHN J. KELLY, Jr., Special Judge, concur.

WOLFE, J., not participating.


author: GEORGE P. -ADAMS, Special Judge.

text:
    Murvin JOHNSON, (Plaintiff) Respondent, v. Fred E. SANDWEG, Sr., (Defendant) Appellant.
    No. 30679.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1961.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 26, 1961.
    Schwartz, James & Sweet, Harry M. James, St. Louis, Joseph Nessenfeld, St. Louis, of counsel, for appellant.
    James F. Koester, Joseph J. Fitzhenry, St. Louis, Joseph W. Toeniskoetter, St. Louis, of counsel, for respondent.
   GEORGE P. -ADAMS, Special Judge.

Plaintiff-respondent recovered judgment against defendant-appellant in the sum of $10,000 in the Circuit Court of the City of St. Louis, its a result of injuries suffered in a collision between plaintiff’s car and defendant’s truck, at the intersection of Grand Avenue and Hebert Street in the City of St. Louis.

On this appeal by defendant, he contends, first, that the Court erred in submitting the case to the jury because plaintiff’s evidence showed him to be guilty of contributory negligence as a matter of law, and the evidence was'insufficient to warrant finding defendant guilty of negligence.

At the intersection of Grand and Hebert, Grand is 80 feet wide and Hebert 36 feet. There are two sets of streetcar tracks in the center of Grand, 5 feet 4 inches apart. The rails of each set of tracks are 4 feet 10 inches apart. At the date of the collision, there was a safety zone of undisclosed length and width immediately north of Hebert and adjacent to the westernmost streetcar rail. At each end of the safety zone, .there were pylons about 3 feet high on which poles with blinker lights were attached. There were two lanes of traffic west of the safety zone, the curb lane and another. No cars were parked in the curb lane. There were stop signs regulating traffic on Hebert. Grand was a through street.

Plaintiff was driving a 1958 model Skoda automobile. Its hood was about 3 feet high. Defendant was driving a Ford truck with a stake body. The truck was 16 feet long from bumper to back. Its “body” was 10 feet long and 4 feet high and the “cab” 6 feet long.

Driving south on Grand, plaintiff had stopped two blocks north of Hebert at Natural Bridge, where there were cars both in front of and behind him. After the signal changed, all of the cars drove ahead of plaintiff, and as he approached Hebert, there were no cars behind him and only one car 60 feet in front of him. Plaintiff was driving in the lane next to the curb lane and about 12 feet from the west curb of Grand.

' Driving west on Hebert, defendant stopped at the • east side of Grand, and after waiting for' northbound traffic to 'pass, proceeded toward the center of Grand where he'noticed the car in front of plaintiff, which was then about 25 feet north of defendant. Defendant stopped to permit this car to pass. The right side of his truck was about 8 feet south of the north line of Hebert and his front bumper was over the westernmost streetcar track rail.

When plaintiff was 60 feet from the intersection, he noticed defendant’s truck for the first time. He had been unable to see the truck sooner because of traffic in front and toward the side of him. At that point, plaintiff was driving 28 to 30 miles per hour. Upon seeing defendant’s truck stopped at the westernmost rail ■ of the car tracks, plaintiff “let up” on the accelerator but did not remove his foot from it or place it on the brake. After seeing defendant’s stopped truck, plaintiff looked away momentarily to watch a taxicab which was parked alongside the south curb of Hebert, west of Grand, and also to watch the car in front of him. When plaintiff was 35 feet north of the intersection, and traveling 20 to 23 miles per hour, he again looked toward defendant’s truck, at which time the truck had moved forward 8 to 10 feet and was moving “continuously.” Without giving any signal to indicate his movement, defendant “shot right out.” Because of the pylons, plaintiff could not swerve to the left, back of defendant’s truck, so he swerved to the right and tried to stop by putting on his brakes. He skidded and swerved to the right at the same time. The front end of defendant’s truck was at the west curb line of Grand when plaintiff hit the back right hand side of the cab with the left front fender of his car. He was traveling 20 to 22 miles per hour when the collision occurred.

Defendant testified that after he stopped on the westernmost rail of the car tracks, and after the car in front of plaintiff passed, he looked up again and saw plaintiff “about five or six car lengths, about 150 feet” from him. He had no judgment of plaintiff’s speed. Defendant then put his truck in low gear, started forward, shifted into second gear, and attained the maximum speed of 10 miles per hour, but never looked in plaintiff’s direction any more. At the time of the collision, defendant was driving 10 miles per hour.

Plaintiff testified that after allowing reaction time, he could have stopped his car in 40 feet at 20 to 22 miles per hour, and that he estimated that by the time he removed his foot from the accelerator and placed it on- the brake pedal, his car traveled 30 feet.

Defendant testified that'after his “foot was on the clutch” he could stop his truck in 2 feet at 10 miles per hour.

The cause was submitted to the jury on defendant’s alleged failure to keep a lookT out.

Considering “the evidence in the light most favorable to plaintiff” and according him “the benefit of all supporting inferences fairly and reasonably deducible from the evidence” and disregarding defendant’s evidence “except insofar as it may aid plaintiff’s case,” La Plant v. E. I. Du Pont De Nemours & Company, Inc., Mo.App., 346 S.W.2d 231, 234(1), it is readily apparent that the jury could have found that defendant was guilty of actionable negligence in failing to keep a lookout to the north, on Grand Avenue.

While defendant was stopped on the west rail of the car tracks he saw, or in the exercise of the highest degree of care, should have seen plaintiff’s car 60 feet north of the intersection, approaching at a speed of 28 to 30 miles per hour. If defendant had watched plaintiff’s car but for one half a second, he could have seen the distance reduced to 38 to 40 feet. Instead, without attempting to estimate the speed of plaintiff’s car and the decreasing distance between the vehicles as was his duty (James v. Berry, Mo.App., 301 S.W.2d 530, 533(5) ), defendant pulled out into the southbound lane and drove the remaining 32 feet to the west curb of Grand without ever looking again toward plaintiff’s car.

When defendant was stopped, he was 20 feet from the west side of the lane in which plaintiff was traveling. With a truck 16 feet long, it was necessary that he travel 36 feet before he would have cleared plaintiff’s lane of traffic. Certainly a diligent lookout would have warned defendant that a collision would likely occur if he proceeded beyond his point of safety on the car track rail.

But even if defendant could be excused for not remaining stopped, when he was 8 feet further into the southbound half of Grand had he looked he could have seen that plaintiff was not going to stop and relinquish the right of way to defendant. Traveling then at 10 miles per hour, he could have reacted to the situation in three fourths a second while traveling 11 feet and could have then stopped in 2 feet and the front end of his truck would only have been 21 feet into the west half of Grand, leaving plaintiff 11 feet in which to pass in front of him.

There was substantial evidence from which the jury found defendant negligent.

Continuing with the principle quoted from the La Plant case, supra, it is equally apparent that plaintiff was not guilty of contributory negligence as a matter of law.

While 60 feet north of the intersection and 68 feet north of defendant’s vehicle and on a “through” street, plaintiff saw defendant’s stopped truck apparently honoring the right of way to which plaintiff was entitled. He had no reason to anticipate that defendant would suddenly and without warning attempt to appropriate the right of way. In turning his view “momentarily” from such stationary vehicle to observe the vehicle ahead and the taxicab at the corner, and to see if pedestrians or other vehicles at the intersection required action on his part, plaintiff was exercising the care that the law requires of him.

It is paradoxical that defendant complains of plaintiff’s action in looking away “momentarily,” for in his argument attacking plaintiff’s main instruction defendant says: “A motorist cannot keep a lookout in all directions at once, and whether he is negligent in respect to a lookout should he left to the jury to find as a fact and not declared as a matter of law by the Court.” That issue was submitted to the jury and was resolved in plaintiff’s favor.

When plaintiff first noticed that defendant had abandoned his place of safety, defendant’s truck had proceeded 8 feet further into Grand. Plaintiff was at the farthest 43 feet away from defendant’s truck. Plaintiff could not swerve to his left and pass behind defendant’s truck because of the pylons in the safety zone. He did have 12 feet to his right between the lane in which he was traveling and the west curb of Grand. The accident occurred approximately 6 feet east of the west curb line of Grand. Plaintiff, therefore, traveled 43 feet south and 6 feet west from the point where he was first required to take emergency action because of defendant’s vehicle. On the diagonal, it was only 44 feet

Judicially recognized reaction time of three fourths of a second would have taken, at 20 to 23 miles per hour, 22 to 25 feet (or 30 feet for reaction time as plaintiff testified). To such reaction time must be added plaintiff’s estimate of 40 feet in which to stop his car, after putting his foot on the brakes. It would have, therefore, taken plaintiff from 62 to 65 to 70 feet to bring his vehicle to a stop. This much distance he did not have.

Defendant’s motion for a directed verdict, filed at the close of all the evidence, was properly overruled.

Defendant complains of error in the giving of Instructions 2, 4 and 6 requested by plaintiff.

Because reversible error was committed in giving Instruction No. 6, we attend that assignment first. The instruction is, as follows:

“The court instructs the jury that the burden of proving that the plaintiff was contributorily negligent is upon the defendant, and defendant must prove that plaintiff was contributorily negligent by the preponderance or greater weight of the evidence, and unless he has done so your verdict must be in favor of the plaintiff and against the defendant.”

This clearly was a misdirection; a direction that defendant was negligent as a matter of law.

Plaintiff makes no serious, or at least no successful attempt to sustain the instruction standing alone. He asserts, however, that the omission of any finding that defendant was negligent was supplied by other instructions.

Plaintiff’s main verdict-directing Instruction No. 2 required the jury to find defendant guilty of certain acts of negligence and defendant’s burden of proof Instruction No. 3 required plaintiff to prove the charge of negligence against defendant by the greater weight of the credible evidence.

While other instructions may be referred to to explain and aid indefiniteness or ambiguity in companion instructions, yet if a verdict-directing instruction “leaves out any facts necessary to be found before the plaintiff is entitled to recover, it is erroneous, and, if such an essential fact is left out, it is not cured by another instruction requiring the finding of such fact. In such a situation, the two instructions would be conflicting.” Jenkins v. Missouri State Life Ins. Co., 334 Mo. 941, 69 S.W.2d 666, 669(3); Elmore v. Illinois Terminal Railroad Company, Mo.App., 301 S.W.2d 44, 47(6, 7). They present an “irreconcilable conflict,” and it “would be pure speculation for us to attempt to say which instruction the jury followed.” Daly v. Schaefer, Mo.App., 331 S.W.2d 150, 157(15).

Since December 22, 1959, the date of the publication of the Supreme Court’s opinion in Moore v. Ready Mixed Concrete Company et al., Mo., 329 S.W.2d 14, the necessity of negativing defendant’s submitted defense of contributory negligence has been settled.

■For seventy-one years the appellate courts of our state held that a defendant’s instruction on contributory negligence cured.the error in plaintiff’s verdict-directing instruction which failed to negative such contributory negligence. Owens et al., v. Kansas City, St. J. & C. B. R. Co., 95 Mo. 169, 8 S.W. 350, 353(3). Then in the Moore case the Supreme Court recognized that such instructions were not “harmonious or consistent,” saying, at (329 S.W.2d loe. cit. 23): “When plaintiff’s verdict-directing instruction fails to refer to the defense of contributory negligence, and such defense is submitted in an instruction offered by the defendant, the result is a definite .conflict between the two instructions.”

If there be such vice in omitting a defense, how much more serioris is the omission of a finding of the 'very foundation of the whole lawsuit, defendant’s negligence?

By Instruction 2, the jury was told that it must find defendant negligent in order to return a verdict for plaintiff. In Instruction 3, it was told that plaintiff must prove defendant negligent by the greater weight ‘of the credible evidence. Then in Instruction 6, it was told that unless defendant proved plaintiff contributorily negligent by the preponderance, or greater weight of the evidence, its verdict must be for plaintiff; that is, if plaintiff was not guilty of contributory negligence he was entitled to a verdict.

As the Supreme Court queried in the Moore case, “Which will the jury follow?” In the jury’s attempt to carefully consider and reconcile all of the instructions “it will likely be perplexed and confused as to the proper manner to interpret and attempt to follow the inconsistent directions contained in the two conflicting instructions.” (329 S.W.2d loc. cit. 23.)

There is no difference in the principles involved in the Moore case and the instant case. And especially in this case, where the issue of plaintiff’s contributory negligence was so vigorously contested that sight of defendant’s negligence may very well have been lost by the jury, the error could not possibly be said to be harmless or cured.

We need not consider defendant’s contentions that Instructions 2 and 4 were erroneous. On retrial, plaintiff, will have the opportunity, if he deems it advisable, to reexamine the instructions and make such changes as may be considered necessary in view of the attack made thereon by defendant.

For error in giving Instruction No. 6, the judgment is reversed and the cause remanded for a new trial.

RUDDY, Acting P. J., and WOLFE, J:, concur.


text:
    Bridget MAYOR, Plaintiff-Respondent, v. Paul MAYOR, Defendant-Appellant.
    No. 30493.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1961.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 26, 1961.

      Dearing, Richeson & Weier, Samuel Richcson, Hillsboro, for defendant-appellant.
    Thurman, Nixon & Blackwell, Jeremiah Nixon, Hillsboro, for plaintiff-respondent.
   DOERNER, Commissioner.

Plaintiff instituted this action for divorce, alleging indignities on the part of defendant which rendered plaintiff’s condition intolerable. Defendant filed an answer and cross-bill. At the conclusion of the trial, the court found that the plaintiff was the innocent and injured party and entered a decree granting plaintiff a divorce, alimony in gross of $7,500, an attorney’s fee of $200, and $50 for a real estate appraiser’s fee. On appeal defendant disputed both the allowance of alimony and the appraiser’s fee, and since the total of those sums exceeded our then monetary jurisdiction the appeal was transferred to the Supreme Court, 340 S.W.2d 142. That court found that the item of the appraiser’s fee had not been properly preserved for appellate review, and retransferred the matter to us, 349 S.W.2d 60.

With the ever troublesome question of appellate jurisdiction thus eliminated, the first of defendant’s remaining assignments is that plaintiff’s evidence was not sufficient to justify the decree of divorce in her favor. This requires a review of the evidence favorable to plaintiff.

Plaintiff and defendant were married on May 31, 1916, and separated on April 26, 1959. Throughout all of their married life they lived on an isolated farm located about five miles southwest of Richwoods, Missouri. In the main, plaintiff’s evidence primarily concerned the defendant’s refusal or reluctance to provide proper medical care for the plaintiff, or to pay for it when it was obtained. It was shown that plaintiff underwent an hysterectomy at the hands of a specialist in St. Louis in 1943, and that from time to time thereafter she required medical attention. Plaintiff testified that the defendant would never do anything when she asked him to take her to a doctor. According to plaintiff, the specialist’s bill for the operation in 1943 was $400, of which the defendant paid but $75, the rest having been paid by two of their daughters. Inferentially, defendant conceded that that was all he had paid, but stated that he didn’t think the bill was $400. Defendant testified that he bought the “older girl” a $100 bond for what she had paid, which she guessed would cover it. Defendant also stated that Lillian, a younger daughter, who was working, had paid part of the bill, “ * * * maybe quite a bit * * but when repeatedly pressed as to whether he had ever asked Lillian what she had paid he stated that Lillian never mentioned it to him, that she was under age, that he didn’t “ * * * think it was any more than right that she help her mother,” and finally, that the subject was never mentioned.

A prior separation between the parties occurred in 1951, which lasted for a year. According to plaintiff the immediate inducing cause was that she asked defendant for money to get her glasses changed, and the defendant told her to go to hell. Plaintiff further testified that about two years before the final separation her son or son-in-law was about to take her to the doctor for a check-up, and the defendant stated that whoever took plaintiff to the doctor would have to pay the bill. On another occasion, about the same time, trouble arose over a $15 balance on a medical bill, owed for almost a year, originally for $50. When defendant failed to pay it, plaintiff did so by writing a check, and when defendant learned that she had done so he told her that if she ever touched his check book again he would take his rifle and she would never write another check.

The events culminating in the final separation on April 26, 1959, appear to have transpired during the two weeks preceding that date. Plaintiff testified that she had been ailing for about a year, and was suffering from high blood pressure, nervousness, and a bloody discharge. Plaintiff asked her sister to take her to a doctor, and on a Wednesday or Friday the sister took her. On that occasion plaintiff went to a Dr. McKinstry, who advised her that she had high blood pressure and would have to be treated for the blood she was losing. Pie asked her to come back in two weeks. When plaintiff returned home the defendant didn’t ask her how she was. On the following Sunday one of the daughters came out to the farm with food and prepared dinner. Plaintiff’s brother resided with the parties and helped defendant with the work. The daughter told the brother to see that plaintiff got to the doctor. The next day, Monday, plaintiff was in bed and couldn’t get up. She testified that she asked defendant to milk the cows, as she couldn’t do so, and that the defendant told her she was a burden on his back; and that when she asked him what he was going to do about it, defendant said “ * * * T will have to get rid of you some way or other.’ * * * ”

After the defendant had gone to work that day plaintiff’s sister came to the farm and took the plaintiff to a Dr. Cresswell, as defendant, according to the plaintiff, didn’t like the first doctor. Since the defendant didn’t know she was going a note was left for him. Plaintiff was delayed because of the absence of the doctor from his office, and didn’t return until 8:00 P.M. She was accompanied by her brother, who informed defendant what the doctor had found wrong with plaintiff, and that plaintiff would need better care. According to plaintiff defendant became angry and “ * * * told my brother for the whole God damn bunch of its to get out. * * * ” She took the three dresses that she owned and went to her sister’s home, half a mile away.

Plaintiff testified that subsequently she moved to the home of a married son and at the time of the trial was assisting him in the operation of his tavern and cafe, for which she receives $20 per week, as well as her room and board. Since the separation her blood pressure has returned to normal, and she is required to go to a doctor only every three months to have it checked.

In addition to the foregoing plaintiff also related other instances in which the defendant had called her a “dirty name,” particularly once when the defendant, mad at a cattle buyer, had, in a fit of anger, jerked plaintiff’s clean curtains down and stamped ■on them; and testified that the defendant had nagged at her, and had been cold and indifferent.

Defendant denied or sought to explain away much of plaintiff’s testimony, but as has been said many times by our appellate court, great deference should be paid to the findings of the trial court, who had the parties and witnesses before him and was in much better position to judge of their credibility. Doll v. Doll, Mo.App., 327 S.W.2d 501. The plaintiff’s evidence showed that she had been ailing and in ill health for years. Defendant admitted that plaintiff didn’t “feel good” and that she was not in good health immediately prior to the separation. The evidence shows that throughout all of those years the defendant did not once bestir himself to take plaintiff to a doctor, although requested to do so. Whatever medical attention plaintiff obtained was through the assistance of her children or her relatives, over either the opposition of the defendant or, if with his consent, begrudgingly given. Furthermore, the record shows an extreme reluctance or outright refusal of the defendant to bear the expense of the medical attention given plaintiff, and a disposition to shift to others a financial burden which was his alone. It has been said that each case in which a divorce is sought on the grounds of indignities must necessarily be determined by its own facts, Kinder v. Kinder, Mo.App., 267 S.W.2d 356; Richardson v. Richardson, Mo.App., 270 S.W.2d 68. Broadly speaking, the acts relied on must amount to a species of mental or physical cruelty, and must evidence a course of conduct by one spouse towards the other whereby the other’s condition is rendered intolerable through acts of such character and frequency as to be subversive of the family relation. Ames v. Ames, Mo.App., 284 S.W.2d 888; Cadenhead v. Cadenhead, Mo.App., 265 S.W.2d 426. The evidence amply supports the charge that defendant’s conduct was of that character and frequency.

Defendant next contends that plaintiff’s evidence was not sufficient to sustain the decree because it was uncorroborated. In some respects, at least, plaintiff was corroborated by defendant’s own testimony. Besides, there is no inflexible rule that in a divorce case the testimony of the prevailing party must necessarily be corroborated. White v. White, Mo.App., 312 S.W.2d 167; Sellars v. Sellars, Mo.App., 274 S.W.2d 509.

Defendant also claims that the plaintiff left their home and remained apart from him because defendant refused to sell his •farm and buy a smaller and less isolated place. Plaintiff denied that she left defendant for the reason stated, and said that the matter of another place was first discussed after the separation, when defendant told her * * you are welcome back to go to work,” but that she refused because “ * * * I know what it would be, it would be the same thing. * * * ”

The final point raised by defendant, that the alimony in gross of $7,500 awarded plaintiff is grossly excessive, is one which has given us considerable concern. Plaintiff contends that the reasonable value of defendant’s property amounted to $19,200. The principal item of property going to make up that figure was the farm on which the parties resided. The title was in the name of defendant, and had been assembled by the purchase of three parcels. The first 80 acres was purchased by the defendant from the Missouri Farm Colony Company in 1910 for $10 per acre. The second parcel was purchased by defendant from his father in 1918 for $1,100. At the time the parties were married, in 1916, this tract had a small house on it in which they lived, until defendant built another house thereon in 1947 at a cash outlay of $500, plus his own labor and timber cut from the land. In addition to the frame dwelling there was also. a barn and a granary, or combination granary and machine shed on this 80 acres. The third parcel of 120 acres was purchased by defendant in 1937 from a man named Lacey for $1 per acre, but something was realized from a pipe line company for an easement, and defendant’s actual payment for this tract was $39.

Plaintiff’s expert witness, Paul Politte, a real estate man, inspected the farm at the request of plaintiff’s counsel. He was accompanied by one of his salesmen, and by the plaintiff, who pointed out to him the boundaries of the 80 acres with the house and other improvements on them. Politte testified that in his opinion the fair market value of that parcel was $7,600, and that the land alone was worth $30 per acre. He testified on direct examination that he had not paid any attention to the rest of the farm, and that he couldn’t say whether the figure of $30 per acre would apply to the adjoining tracts. There was no explanation offered as to why Politte did not inspect and arrive at an opinion as to the rest of the farm, when he knew he was to appear as a witness. Plaintiff testified that in 1951 defendant told her he could get $19,000 “for the whole thing” but defendant testified that that figure was the amount in an option to buy given a mining company at the time it prospected his farm for minerals. Plaintiff conceded that no minerals were found, and did not deny that the figure of $19,000 was made in connection with the option. Defendant’s estimate was .that the whole farm was worth $6,700, but he declined to put any separate valuation on either of the three tracts. He testified that some three or four years previously he had been offered $700 for some young pine on “70 acres at the back of the place,” but declined the offer. Whether such timber was worth more or less at the time of trial was not shown.

In the absence of any direct evidence in her behalf plaintiff argues that the entire farm had a value of $11,900. In part, she bases her contention on the fact that during cross-examination defendant stated that the 120-acre tract was “About the same” quality as the 80 acres which were improved, and which Politte testified were worth $30 per acre. To the supposed figure of $3,600 thus arrived at plaintiff adds the valuation of $7,600 Politte had placed on the 80 acres, and the $700 for the timber, an offer made three or four years previously. Plaintiff’s argument, at best, is a tenuous one, and the figure for the fair market value of the farm is obviously not supported by any evidence having probative value.

Evidence is likewise lacking as to the fair market value of certain items of defendant’s personal property. Defendant testified that after the plaintiff returned from their first separation, in 1952, he spent the sum of $2,000 to install electricity and water in the house, to build a road, and for the purchase of a television set, refrigerator, deep freeze, rugs, and “ * * * all of the like •of that. * * * ” No attempt was made to have defendant detail the amount spent for each item, nor is there any evidence in the record of the value at the time of trial ■of the television set, and other furnishings, after seven years’ use. Plaintiff contends in her brief that “ * * * The fair inference from this testimony is that at the very minimum $1,000.00 would be a fair value for ■the furniture that the defendant mentioned.” Thus we are not only asked to speculate as to the original cost of the items mentioned, but to also infer that such items, after seven years’ use, would have a fair market value •of $1,000. Further, plaintiff interprets defendant’s testimony to be that his tractor was worth $500 or $600, and that the rest of his farm equipment was worth $1,100 or $1,200. While there is room for doubt, we are inclined to construe his testimony to have been, as does the defendant, that all of the farm equipment, including the tractor, was worth $1,100 or $1,200. Lastly, by the use of certain expectancy tables and present value of a dollar schedule, plaintiff computes the present value of defendant’s Social Security income of $84 per month to be worth at least $25,527.21. Pier argument, however valid, conveniently overlooks the fact that if the same method of evaluation was applied to her own cash income of $20 per week (besides room and board) the resulting present value would, because of her younger age and greater expectancy, be considerably more than that of defendant’s, and would have to be taken into account.

It is evident from the record that both parties to this proceeding labored long and hard to accumulate the property in dispute. Plaintiff is undoubtedly entitled to a fair share thereof, as alimony in gross, if the trial court is disposed to award her alimony in that form. But the same spirit of justice likewise requires that defendant should not be required to pay an excessive amount. If this were a case where the evidence as to the value of such property was conflicting we could reach our own conclusion as to that issue, and, if it differed from the amount set by the trial court, dispose of the case by giving such judgment as we believe the trial court should have given. Rule 83.13, V.A.M.R. But where, as here, there is a lack of probative evidence in the record as to an issue our only alternative is to remand the case for a proper development of the question. Oliver v. Oliver, Mo.App., 325 S.W.2d 33; Niedergerke v. Niedergerke, Mo.App., 271 S.W.2d 204; Erlacher v. Erlacher, Mo.App., 145 S.W.2d 974.

Accordingly, it is the recommendation of the Commissioner that all of the judgment be affirmed except as to the allowance of alimony; that it be reversed as to that part allowing plaintiff alimony in gross of $7,500; and that the cause be remanded for further proceedings as to that issue.

PER CURIAM.

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

Accordingly, all of the judgment is affirmed except as to the allowance of alimony ; it is reversed as to that part allowing plaintiff alimony in gross of $7,500; and the cause is remanded for further proceedings on that issue.

ANDERSON, P. J., RUDDY, J., and JOHN J. KELLY, Jr., Special Judge, concur.


author: WOLFE, Judge.

text:
    Finis RECTOR, James Rector, Gladys Rector, Billy Newlin, Jim T. Newlin, Letha M. Newlin, LaVerne Hyde and Mildred Hyde, (Plaintiffs) Appellants, v. TOBIN CONSTRUCTION COMPANY, Inc., a Corporation, (Defendant) Respondent.
    No. 30710.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1961.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 26, 1961.

      Charles A. Powell, Jr., Macon, for appellants.
    William H. Becker and Terence C. Porter, Columbia, Bollow, Crist & Oswald, Shelbina, for respondent.
   WOLFE, Judge.

This is an action for crop damages. It is in three counts. The damages for which recovery is sought arose out of the flooding of the plaintiffs’ land. It was alleged in the plaintiffs’ petition that the defendant constructed a dirt fill or dam across the bed of the Middle Fork of the Chariton River in Macon County, Missouri. This was done while defendant was engaged in building a bridge for the State Highway Department. It was alleged that this fill obstructed the flow of water, and that it caused the Middle Fork to overflow onto the lands owned by the plaintiffs.

Count 1 is for damages to the crops of Finis Rector, James Rector, and Gladys Rector. Count 2 covers crop damage to the land owned by Billy Newlin, Jim T. Newlin, and Letha M. Newlin. Count 3 is for crop damage suffered by LaVerne Hyde and Mildred Hyde, who owned the third tract of land. The plaintiffs sought double damages under Section 236.270 RSMo 1959, V.A.M.S. The trial was to the court, and from a finding and judgment for the defendant the plaintiffs prosecute this appeal.

The land area under consideration extends for almost a mile northwardly from the southernmost easement line of Highway 36, which runs in an east and west direction. The Middle Fork of the Chariton River flows generally southwardly through the area to a point where it is now crossed by the bridge which is part of Highway 36. For about a third of a mile it flows almost due south from the northernmost line of the general area. It then turns westwardly and runs in that direction for about the same distance to a point where it turns to the south again. At this turn it is joined by a drainage ditch 12 feet wide; which. runs southwardly from a dike that borders the northernmost part of the Rector property. From the point where the ditch joins the river, the flow continues south until it passes under and beyond the highway bridge.

The highway bridge was constructed by defendant Tobin Construction Company under a contract with the Missouri State Highway Commission. In order to move its heavy earth-moving equipment and material across the Middle Fork, in thé process oF.''constructing the bridge, the Tóbiii Cohipány'built art earth fill bxtending from one bank of the stream to the other; The fill was about 14 feet wide, and 35 to 40 feet in length, which was the width of the Middle Fork riverbed. The height of the fill was variously fixed by the plaintiffs’ witnesses at from 8 to 12 feet, and defendant’s witnesses said that it was 6 to 7 feet high. All were agreed that it dipped down toward the center. About one-half foot from the bed of the Middle Fork a corrugated metal pipe 3 feet in diameter ran through the fill parallel to the bed, thus permitting the normal flow of the stream to pass through. The fill was built upon the right of way duly obtained by the Highway Commission for the highway. The contract for the construction of the highway bridge made no provision for the construction of any fill across the Middle Fork.

The flooding of the lands took place in the latter part of July 1957. One of the plaintiffs’ witnesses, a man named Edwards, who measured the rainfall at his home, testified to the various amounts of rain he measured from July 15 through July 29; He took the measurements at his home, which was a mile and three-quarters east of the area in question. He testified that on July 15 there was a rainfall of 2.35 inches; on July 22 there was 3.7 inches; and on July 27 there was 1.66 inches of rain. He stated that he measured one inch of rain on July 29. Finis Rector, the plaintiff in Count 1 of the petition, testified that he Measured the rainfall of July 29 at -2.5 inches.

The Rector farm concerned herein had 85 acres in cultivation, 10 acres of which were west of the drainage ditch referred to by the witnesses as the “Sweaser”. Part of the 10 acres was near the foot of a hill, and a portion of it was not flooded. This area was planted in corn. Three of the other areas flooded were east of the drainage ditch and west of the river. There was one area of 20 acres planted in beans that was south of the river, where it meandered wcstwardly across the farm. In all, there were 30 acres of corn and 55 acres of soybeans. Rector said that the first .time he saw the dam was on July 22. It will be recalled that this was the day of the 3.7 inches of rain. He said that he noticed the water in the creek was not flowing, and having heard that there was a dam by the construction work he went to look at it. He said that water was running over the top of the dam, but the creek was not out of its banks. He saw the fill later, and a cut had been made in its east end. This cut was estimated by him to be 2½ feet wide and about 2 feet deep. He said that water was flowing through it. According to Rector the rain of July 27 caused some flooding and damage to his crop. At that time there was water on the land Saturday night, but it had flowed off by Sunday morning. On July 29 the land flooded and the water stayed on for “possibly two days or' less”. He said that he harvested 583 bushels of beans and 690 bushels of corn. He also estimated, as a conservative estimate, that he would have had 30 bushels per acre yield of beans if there had been no water damage.

Billy Newlin, testifying on behalf of plaintiffs in-Cqunt 2 of the petition, stated that the Newlin tract upon which crop damage was sustained lay to the south of the Rector farm, north of the highway and east of the river. It covered an area of about 18 acres. Beans were planted upon 11 acres of this, and corn on 7 acres. He said that before the land was flooded he estimated the value of this corn at.$1,000, and that the corn was a total loss because of the flood. He estimated the' value of his beans before flooding at $707.85, and stated that he only got $114 for the crop. On cross examination Newlin admitted that he had land south of the fill, which would be downstream from the fill, that had flooded and suffered crop damage. He stated, “At that time it looked as though the whole area would be ruined, but we were going to drop that south of the highway, not even mention it.”

The Hyde farm owned by the plaintiff in the third count of the petition is west of the river. It had 16.1 acres of soybeans. These were about knee high and needed no more cultivation. After the rain of July 22, Hyde had gone to see Mr. Wilson, who was the project superintendent for the Tobin Construction Company. Hyde told Mr. Wilson that the river was almost at flood stage above the fill, and that there was a forecast of further rain. According to Hyde, Wilson told him not to worry about it, that he would take care of it. Later Wilson told him that he had cut a channel in the top of the fill. He said, according to Hyde, that he could not cut it as deep as he wanted to because his bulldozer had slipped in the mud toward the water and that he had been forced to pull it out with a tractor. Newlin also talked to Mr. Wilson about the fill.

On Saturday, July 27, 9 acres which Hyde had planted in beans were flooded at about noon, but the water had drained off Sunday, July 28. On Monday, July 29, it rained again and flooded enough to cover the beans, and the water stayed on, according to Hyde, for 2½ to 3 days. He said that about 9 acres of beans were destroyed, and that he would have had a yield of 30 bushels to the acre. Numerous witnesses who testified on behalf of the plaintiffs stated that the land was subject to frequent flooding. One witness testified that water that just washes through and does not stand on the crops does not damage them, but that water standing on the crops causes damage. Another witness said that he saw the water on the land after the rain of the 29th, and it was like a lake. There was no evidence that flood waters did not stand on the land in periods of comparable rainfall when the flow of the river was not obstructed. There was evidence of harvesting cost, about which there was no dispute. The value of beans was $1.95 per bushel and harvesting at $5 per acre. We find nothing about the market value of corn in 1957.

In the defendant’s case it was stipulated that the contract with the State Highway Commission made it necessary for the defendant to move dirt across the creek, and the defendant’s machines were obliged to cross it. Mr. Everett E. Baker, engineer for the State Highway Department, testifying for the defendant, said that he saw the fill and that the making of such fills was a general construction practice. He stated that he was empowered to stop improper practices engaged in by companies contracting with the Highway Department, but that he saw nothing improper in putting in the fill. He knew of no other way to cross the stream without elaborate bridging, which had never been done before. He stated that the fill was reasonably necessary for the work being done.

An employee of the Tobin Construction Company who was engaged in engineering and survey work testified that he had made a survey of the area. From the survey he prepared a plat which showed the elevations of the high water marks ’ in the area and the elevations at the fill. He said that the banks of the river had not been flooded and that there were no indications, such as mud upon the weeds that grew along the banks, that the river had been out of its banks. The high water marks on the Rector property ranged from 3½ feet to 7 feet higher than the high water marks just north of the fill and somewhat higher than that in relation to the top of the fill. The water on the flooded area of Newlin’s land was from ½ foot to 2.3 feet higher than the height of the water by the fill. The Hyde land high water mark was from about 1 to 3 feet higher than the high water mark at the banks of the river.

Wilson, the project superintendent, testified that he talked at various times with Newlin, Hyde, and others during the process of the work. He said that he did not recall exactly what was said in the conversations relating to the fill, but he did attempt to cut the fill after the rain of July 22.

There was also testimony in the defendant’s case by several witnesses who farmed land south of the fill. They stated that there was flooding on the land that they farmed during the latter part of July.

The regional manager of the Doan Agricultural Service was employed by the defendant to examine the flooded area and to estimate the crop damage on the various tracts herein considered. He determined that the crop damage suffered by each was as follows: Rector — corn 286.65 bushels, beans 705.9 bushels; Ncwlin- — corn 484.4 bushels, beans 182 bushels; Hyde — beans 176 bushels.

The trial court found that the fill materially retarded the flow of the water and caused the water to stand on plaintiffs’ land. It found that this caused damage to the crops of the plaintiffs. It went on to hold that the fill was reasonably necessary to the work that the defendant had contracted to do. It further held that the defendant company, in the absence of negligence, which was not pleaded or relied upon, was not liable for the losses. This was predicated upon the theory that the defendant was entitled to share the sovereign immunity accorded to the State Highway Department. The court held that since the fill was reasonably necessary for the work, no recovery could be had by the plaintiffs.

In accordance with Section 510.310, subsection 4 RSMo 1949, V.A.M.S., we review cases tried by the court “upon both the law and the evidence as in suits of an equitable nature”, and “the judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Under this statute we independently consider the evidence and reach our own conclusions. We generally accord deference to the findings of the trial court where the decision must rest upon the credibility of the witnesses. In re Petersen’s Estate, Mo.Sup., 295 S.W.2d 144, loc. cit. 148; Leggett v. Missouri State Life Insurance Company, Mo.Sup., 342 S.W.2d 833, loc. cit. 850.

On the question of the liability of the defendant, the plaintiff contends that the court erred in holding that the defendant could not be held accountable for the damages caused by the fill because the defendant shared the immunity of the State Highway Commission. There appears to be no question that the Commission is not liable for tortious acts of its agents and employees. Bush v. State Highway Commission of Missouri, 329 Mo. 843, 46 S.W. 2d 854; Broyles v. State Highway Commission of Missouri, Mo.App., 48 S.W.2d 78; Manley v. State Highway Commission, Mo.App., 82 S.W.2d 619. This, however, does not exempt the agent or employee from liability for his own tortious acts simply because he was working for the State.

The defendant here contends that the court’s holding was correct, and that the defendant is liable only for its negligence. It relies, as the trial court did, upon the cases of Kenton v. Massraan Const. Co., Mo.Sup., 164 S.W.2d 349, and Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W.2d 924. Both of these cases arose out of the construction of a dike in the Missouri River. The dike was constructed by the defendant under a contract with the United States Government. In these cases it was contended by the plaintiffs that the defendant contractor negligently extended the dike and thereby caused other dikes to break and flood their land. In both cases it was held that the defendant was not in any way negligent in constructing the dike. The defendant constructed it according to the plans and directions given him. The work was executed under the direction of United States engineers, and the United States accepted and paid for the dike. Our Supreme Court held that whatever effect the dike had on the water of the river was not chargeable to the contractor but was a matter for which the Government alone was answerable.

These cases follow the rule generally accepted that the contractor shares the immunity of the sovereign when his work is done at and within the direction of the sovereign’s agent, such as the Highway Department. There was nothing present in those cases other than the work that the •defendant contracted to do. Before us, however, in the instant case is the fact that the fill was neither called for by the defendant’s contract, nor was its building directed by the Highway Department nor was it paid for by it. Apparently aware of this difference the defendant stresses that there was no proof of negligence, and the foregoing Massman cases require that the contractor can only be held for negligent construction. This view of those cases ignores the fact that the defendants were charged with negligence in performing the contract which they did perform, but the act complained of here is beyond the contract. In discussing the rule it is stated in 40 C.J.S. Highways § 212, p. 208:

“ * * * the contractor, and not the highway authority, is liable for damages resulting from his own tortious acts in the performance of the contract, as where he is negligent, or commits an unauthorized trespass on the property off the right of way.”

We concur in the finding of the trial court that the evidence did prove that the flow of the river was retarded by the dam and did cause at least some of the flooding of the area. The flooding of another’s land by blocking a stream constitutes a trespass. We so held in Corrington v. John Kalicak Bldg. Const. Co., Mo.App., 319 S.W.2d 888, in which we were following Kennedy v. Union Electric Co. of Missouri, 358 Mo. 504, 216 S.W.2d 756, and Ferguson v. Union Electric Company of Missouri, Mo.Sup., 282 S.W.2d 505. A trespass carries with it a liability for damages regardless of the fact that while committing the trespass the defendant was engaged in public work. See Austin Road Co. v. Anderson, 146 Tex. 553, 209 S.W. 595. This case was a trespass where the contractor piled dirt upon the plaintiff’s land. Breathitt County v. Hudson, 265 Ky. 21, 95 S.W.2d 1132. This was a trespass where rock was cast upon the land. Timothy J. Foohey Dredging Co. v. Mabin, 118 Ark. 1, 175 S.W. 400, and Kochtitzky v. Bond, 128 Ark. 255, 194 S.W. 8. In both cases trespass was by flooding of the land of the plaintiffs. In Asheville Const. Co. v. Southern Ry. Co., 4 Cir., 19 F.2d 32, the highway contractor, in blasting, threw rocks upon plaintiff’s property.

We are not impressed by the contention that the fill was essential to the work being done under the contract. From the photographs in evidence and the plat of the right of way, it appears clear that a passage could have been cut through the banks within the right of way to afford the machines of the defendant a bed level or low level crossing with sufficient drainage. Our conclusion is that the defendant trespassed upon the plaintiffs’ land to the extent that the fill caused the water to flood it and stand upon it, and that it is liable for such damages as the fill was instrumental in causing.

This brings us to the question of the sufficiency of the proof of damages. We are dealing here with low-lying land crossed by a meandering stream and a drainage ditch, flanked to the north by a dike and surrounded by hills. It was subject to frequent flooding, and the rains in question brought flood and crop loss to Newlin’s property below the dam, and others owning land farther downstream testified to flooding. In the case of Kennedy v. Union Electric Co. of Missouri, 358 Mo. 504, 216 S.W.2d 756, loc. cit. 764, our Supreme Court stated:

“It is true where part of flood damage would have been caused by an an-ticipatable overflow, without any obstruction, one who obstructed the stream would not be liable for such part but only for the additional damages caused by his obstruction, as the cases cited by defendant hold. (Citing cases).”

In the Kennedy case there was no difficulty in determining the extent to which the flooding was caused by the defendant. There was evidence that there had never been an overflow, prior to the building of the dam, high enough to reach the building for which flood damage was sought.

The plaintiffs assert that because the rains of the 15th and the 22nd flowed off, we must assume that the rains of the 27th and the 29th were not permitted to flow off because of the fill. We of course know that in periods of rainfall the effect is normally cumulative. The earth becomes saturated and unable to absorb the water, and streams become swollen. In view of the flooding below the dam, we cannot hold, on the meager facts presented, that there would not have been water standing on some of the crops if there had been no obstruction of the river. There must be presented some evidence of the extent to which a period of like rainfall .would normally flood or would not flood the land. Without this there is no yardstick by which to measure the extent that the flooding was caused or increased by the fill. The extent of the trespass is unknown, and the evidence is therefore insufficient to determine the crop loss, if any, attributable to the fill. On the subject of damages, it should also be noted, as stated above, that there was no evidence of the market value of the corn claimed to have been lost.

The plaintiffs claim that they are entitled to double damages by virtue of Section 236.270 RSMo 1949, V.A.M.S. This section provides: “Any person who shall build or heighten any dam, or any other stoppage or obstruction on or across any watercourse, without first obtaining permission from the court of the proper county, according to law, and shall thereby work any injury to any other person, shall forfeit to the party injured double damages for such injury, to be recovered by civil action.”

This section is part of Chapter 236, bearing the title “Dams, Mills And Electric Power”. The chapter dates bac-k in part' to the territorial laws of 1822, and it contains a special procedure for obtaining perl mission to dam watercourses. The very obvious purpose of the original act was to promote the construction of mills and to protect the owners of land along the watercourse from any damage that they might suffer because of the construction.

In construing a statute we must seek to gather the intent of 'the legislature from the ordinary meaning of the words used, considering the whole Act and its legislative history. We must promote its meaning and not give it any absurd construction. St. Louis Southwestern Railway Co. v. Loeb, Mo.Sup., 318 S.W.2d 246. The Act obviously deals with dams and obstructions intended to be physically permanent in nature and intended to impound or divert water.

The procedure set out provides that the person desiring to erect a dam shall file a petition in the circuit court of the county in which it is “proposed to erect such mill, electric power and light works, or other machinery, in connection with the dam * * *.” Section 236.030. It provides for the issuance of a writ of ad quod damnum directed to the sheriff for a determination of the damage that would be c.aused to those along the watercourse. Upon the return of the inquest conducted as prescribed, the court may direct a jury trial for any one aggrieved by the verdict.

To apply this procedure to the construction of a temporary crossing which provides for the uninterrupted flow of the normal volume of water would be an impossibility and an absurd extension of the Act to cover matters not within the contemplation of the legislature. The plaintiffs have only their common law right to their actual damages, and the statute has no application to the facts before us.

Doubtlessly the plaintiffs can upon the second trial produce evidence sufficient to show the extent of the trespass and the value of the crops destroyed by it, so the case is reversed and remanded for a new trial in accordance with the views herein expressed.

ANDERSON, P. J., and RUDDY, J., Concur.


author: ANDERSON, Presiding Judge.

text:
    Verna STEMME, (Plaintiff) Appellant, v. Howard STEMME, (Defendant) Respondent, St. Louis County Water Company, Garnishee of Howard Stemme, Defendant, Garnishee.
    No. 30767.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1961.
    Paul Taub, Overland, for appellant.
    Albert J. Haller, Clayton, for respondent.
   ANDERSON, Presiding Judge.

This is an appeal from an order of the Circuit Court quashing a writ of garnishment issued upon the application of plaintiff, Verna Stemme, and directed to defendant’s employer, St. Louis County Water Company.

The purpose of the proceeding was to subject any sum, which was owed defendant by the garnishee, to the payment of an alleged amount due on judgment for child support theretofore obtained by plaintiff in a divorce proceeding.

The parties were divorced by a decree of the Circuit Court of St. Louis County on February 25, 1955. The decree provided that defendant should pay to plaintiff Fifteen Dollars per week for the support of each of two minor children, Howard Stem-me, Jr. and Harriet Stemme. In the application for the writ of garnishment filed by plaintiff on July 29, 1960, it was claimed there was $3,600 due on the judgment. On August 11, 1960, defendant filed his motion to quash the garnishment on the ground that he had fully complied with the order of the court with respect to the payment for child support.

The alleged delinquencies in the payments for the support of the son occurred during the period from September, 1956 until the son became of age, July 9, 1959. The alleged delinquencies'with respect to the daughter Harriet’s support occurred during the period from September 1, 1958, to the date of garnishment, July 25, 1960. In 1956 defendant paid plaintiff $1,335 leaving the sum of $225 unpaid. In 1957 defendant paid to plaintiff the sum of $1,190, leaving a sum amounting to $370 unpaid. In 1958, defendant paid plaintiff $635, leaving a balance due of $925. In 1959 no payments were made to plaintiff, and since the son, Howard, Jr., became of age on July 9th of that year, the alleged delinquency in payment was the sum of $1,185. In 1960 there was a delinquency in the payments due for Harriet’s support amounting to $450. The total delinquencies amounted to $3,155.

The son, Howard, Jr., entered Lehigh University in September 1956, and continued as a student there through the school session beginning in 1959. He had a tuition scholarship, but needed funds for living expenses. Plaintiff testified that when Howard, Jr. first entered the University she borrowed either five or six hundred dollars and opened a bank account for him. He also worked, and while attending the University, lived at Bethlehem, Pennsylvania, where the University is located. During the time Howard, Jr. lived away from home plaintiff received no payments from defendant for the support of her son, but for any week he did live with her, plaintiff received from defendant the sum of $15. The son, Howard, Jr. became twenty-one years old, July 9, 1959.

The daughter, Harriet, attended school at the University of Illinois beginning in 1958. She lived at the University during such times she was in attendance there. During the school vacation period in 1959, Harriet lived for a time with her father. During the time Harriet lived at her mother’s home, defendant paid to plaintiff the $15 a week support money. While Harriet resided away from the mother’s home no payments on account of Harriet’s support were made to plaintiff by defendant.

It was shown that in 1956 defendant deposited the sum of $708.15 in a bank account which was in the son’s name. In 1957 defendant deposited $760 in the same account. In 1958 there was a deposit of $2,071.91 by defendant in said account, and in the year 1959, the sum of $993.16 was deposited. In 1958, defendant deposited in a bank account in the name of the daughter, Harriet, the sum of $785.62; in 1959, the sum of $2,290.49; and in 1960 the sum of $873.89. All payments for Harriet’s school expenses were paid by her out of the account in which her father had made said deposits.

If defendant is entitled to credit for the amounts of the deposits made in the children’s bank accounts as payments on the judgment, there is, then, no balance due plaintiff on said judgment.

Plaintiff testified that defendant never asked her consent to his depositing any sums of money in the names of the children ; that he never consulted her about it; that it was not done with her agreement; that she had nothing to say about it, and that she had never indicated to defendant that it might be done or that she would accept it if done. The foregoing evidence was uncontradicted.

Upon interrogation by the court, plaintiff testified she knew from her son that defendant had deposited some money in the son’s bank account in 1956. She further testified that she was sure defendant had contributed money to the son in 1957, 1958 and 1959, but had no proof of how much it was. She further stated that after 1956 she did not contribute anything for her son’s schooling. On cross-examination plaintiff testified the checks made payable were not delivered to her in person by defendant, but delivered to the children. She further testified she tried to talk to defendant about this matter twice, which resulted in defendant’s cursing and swearing.

Appellant contends that the trial court erred in sustaining the motion to quash the garnishment for the reason that the evidence clearly shows that the judgment on which the garnishment was issued had not been paid. It is the position of respondent that the payments made by him directly to the children should be credited as payments on the judgment and when so considered there was substantial compliance with the spirit and intent of the decree.

It is the general rule that when a defendant husband is required by a divorce decree to pay to the plaintiff money for the support of their children, accrued and unpaid installments become judgments in favor of the wife, and the husband cannot claim as credits on said judgment payments made directly to the children, or to others for their benefit, except where such payments are made with the express or implied consent of the wife, or where “compulsion of circumstances” make necessary such course of action. See Goeller v. Goeller, Mo.App., 346 S.W.2d 545; Steckler v. Steckler, Mo.App., 293 S.W.2d 129; M— v. M—, Mo.App., 313 S.W.2d 209; Briggs v. Briggs, 178 Or. 193, 165 P.2d 772, 166 A.L.R. 666; Openshaw v. Openshaw, 86 Utah 229, 42 P.2d 191; Roach v. Oliver, 215 Iowa 800, 244 N.W. 899; Cotton v. Wright, 193 La. 520, 190 So. 665; Mason v. Mason, 148 Or. 34, 34 P.2d 328; Duncan v. Roane (La.App.), 127 So.2d 191.

The basis for such ruling is that, since the mother has been awarded the custody of the children and a judgment rendered in her favor for their support, it is her privilege and responsibility to determine the manner in which the funds payable' under the judgment are spent. It is said in such cases that the father has no right to alter the terms of the decree and dictate the method of furnishing support. Goeller v. Goeller, supra; Steckler v. Steckler, supra; Duncan v. Roane, supra; Cotton v. Wright, supra; Roach v. Oliver, supra; Openshaw v. Openshaw, supra.

There is no evidence in the record that Appellant ever expressly agreed that the deposits made by Respondent in the children’s accounts should be considered as payments on the judgment. Just the opposite appears from appellant’s testimony. She testified that respondent never asked her consent to his making the deposits, never consulted her in any way about it, and that it was done without her consent. Defendant did not deny this testimony. In fact, he did not take the stand to testify in the case. Neither was there evidence adduced from which an implied consent could be found. Mere silence with knowledge on the part of appellant that respondent was making some payments directly to the children is not sufficient, in our judgment, to warrant a finding of implied consent.

Under the circumstances it cannot be held that appellant was under a duty to protest or lose her rights under the judgment. Rather it was respondent’s duty to pay to appellant the amounts due or secure her consent to a different method of payment, or perhaps he could have requested the court to change the decree with reference to this matter. Nor was there any “compulsion of circumstances” shown. Appellant did not' abandon the children or consent to a change in custody arrangements' which would constitute “compulsion of circumstances” under the décisions.

In our opinion the trial court erred in quashing the garnishment. The judgment appealed from is reversed.

RUDDY, J., and JOHN J. KELLY, Jr., Special Judge, concur.

WOLFE, J., not participating.


text:
    E. Loren CROSS, (Plaintiff) Respondent, v. PEERLESS INSURANCE COMPANY, a Corporation, (Defendant) Appellant.
    No. 30863.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1961.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 26, 1961.
    Robert E. Keaney, Burton H. Shostak) and Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for appellant.
    Curtis L. Mann, St. Louis, for respondent.
   ANDERSON, Presiding Judge.

This is an action by plaintiff to recover under a policy of burglary and robbery insurance issued to him by defendant. Suit was originally instituted in the- Third District Magistrate Court of St. Louis County. A trial in that court resulted in a judgment in-favor of plaintiff. Thereafter, defendant took an appeal to the circuit court of St. Louis County. After the case reached the circuit court, plaintiff filed therein a motion for summary judgment together with a stipulation of facts. Defendant filed a like motion. The cause was then submitted to the Court. The Court overruled defendant’s motion for summary judgment and sustained plaintiff’s motion. Judgment was then entered in favor of plaintiff in the principal amount of $310.-20, $31.10 as damages for vexatious refusal to pay, and $100 attorney’s fees. From this judgment defendant has appealed.

The facts disclosed by the stipulation of the parties are as follows :

Plaintiff owns and operates the Monarch Market at 922 Goodfellow Avenue, St. Louis, Missouri. On February 26, 1958, •defendant issued to plaintiff its "Storekeepers Burglary and Robbery Policy” No. SKR 034883 insuring plaintiff against burglary and robbery at said premises. The policy was for the term of one year, but was extended by a continuation certificate to February 18, 1960. On the face of the policy under the heading, “Declarations” are items 1 to 7. Under Item 1 appears the name of the insured, his address, location of the insured premises, and the business conducted thereon. Under Item 2 the policy period is stated to be from February 18, 1958 to February 18, 1959. Under Item 3 it is provided “Limit of insurance under each of Insuring Agreements 1 to VII inclusive; $500.00. Premium $67.50.” Items 4, 5, 6, and 7 contain certain agreements and provisions in the nature of declarations not material to the issues on this appeal.

On the second page appear the Insuring Agreements, the material parts thereof being as follows:

“Peerless Insurance Company
“(A Stock Company, herein called the Company) Agrees with the insured, named in the declarations made a part hereof, in consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of insurance, exclusions, conditions and other terms of this policy:
“Insuring Agreements
“I. Robbery Inside the Premises: To pay for loss by robbery of money, securities, merchandise, furniture, fixtures and equipment within the premises.
“II. Robbery Outside the Premises: To pay for loss by robbery of money, securities and merchandise, including the wallet or bag containing such property, while such property is being conveyed ' by a messenger outside the premises.
“III. Kidnapping: To pay for loss by kidnapping of money, securities, merchandise, furniture, fixtures and equipment within the premises.
“IV. Burglary; Safe Burglary: To pay for loss' by 'safe burglary of money, securities and merchandise within the premises and for loss, not exceeding $50, by burglary of money and securities within the premises.
“V. Theft — Night Depository or Residence: To pay for loss by theft of money and securities within any night depository in a bank or within the house or apartment occupied as a residence by a custodian or messenger.
“VI. Burglary: Robbery of Watchman: To pay for loss by burglary or by robbery of a watchman, while the premises are not open for business, of merchandise, furniture, fixtures and equipment within the premises. Under this insuring agreement, the actual cash value of any one article of jewelry shall be deemed not to exceed $50.
“VII. Damage: to pay for damage to the premises and to money, securities, merchandise, furniture, fixtures and equipment within the premises, by such robbery, kidnapping, burglary, safe burglary, robbery of a watchman, or attempt thereat, provided with respect to damage to the premises the insured is the owner thereof or is liable for such damage.
⅜ ⅝ * ⅜ ⅝ ⅝
“Conditions
“ * * * (i) Burglary. The word ‘burglary’ means the felonious abstraction of insured property from within the premises by a person making felonious entry therein by actual force and violence as evidenced by visible marks made by tools, explosives, electricity or chemicals upon, or physical damage to, the exterior of the premises at the place of such entry.
“(j) Safe Burglary. The term ‘safe burglary’ means the felonious abstraction of (lj a safe from within the premises, or (2) insured property from within a vault or safe located within the premises by a person making felonious entry into such vault or such safe and any vault containing the safe, when all doors thereof are duly closed and locked by at least one combination or time lock thereon, provided that such entry shall be made by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity or chemicals upon the exterior of (a) all of said doors of such vault or such safe and any vault containing the safe, if entry is made through such doors, or (b) the top, bottom or walls of such vault or such safe and any vault containing the safe through which entry is made, if not made through such doors.”

During the night of January' 9-10, I960,, insured premises at 922 Goodfellow Avenue were burglarized by a person or persons unknown. In the course of the burglary, merchandise of the value of $10 and cash in the sum of $286.20 were taken from said premises, and said premises were damaged by glass breakage in the amount of $14. The $286.20 in cash was not kept in. a safe.

Thereafter, plaintiff filed a proof of loss with defendant, demanding $310.20. Defendant refused to honor plaintiff’s demand in said amount, but admitted its liability to plaintiff in the sum of $74, computed as follows: $10 for merchandise, $14 for glass breakage and $50 for loss of cash. Defendant claimed that $50 was under the terms of this policy the monetary limit for the cash loss which was not the result of safe burglary. '

Appellant contends the trial court erred in rendering judgment in favor of plaintiff on plaintiff’s motion for summary judgment. It is urged that its liability for loss of money by reason of the burglary was fixed by clause IV of the Insuring Agreements at the sum of $50. Respondent contends he is entitled to recover the actual money loss suffered, $286.20, based upon a claim of ambiguity and repugnancy between insuring clause IV and the provision appearing on the face of the policy fixing the insurance limits under each of the Insuring Agreements at the sum of $500j which requires a construction favorable to the insured.

An insurance contract, like any other contract, must be construed to give effect to all provisions of the policy, if possible. Soukop v. Employers’ Liability Assur. Corporation, Limited, of London, England, 341 Mo. 614, 108 S.W.2d 86, 112 A.L.R. 149; State ex rel. Mutual Benefit, Health and Accident Ass’n v. Trimble, 334 Mo. 920, 68 S.W.2d 685; Taylor v. Loyal Protective Insurance Co., Mo.App., 194 S. W. 1055. The rule is stated in Soukop v. Employers’ Liability Assur. Corporation, supra, loe. cit. 92, as follows:

“ * * * no substantive clause should be allowed to perish by construction unless unsurmountable obstacles stand in the way of any other course; looking to the instrument as a whole, courts should give such construction that each clause will have some effect and perform some office; seeming contradictions must be harmonized, if that course is possible; a construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another construction which gives effect to all of its provisions and is consistent with the general intent.”

In the instant case, the sole dispute between the parties relates to loss of cash by burglary. The only provision in the policy which obligated defendant to pay for such a loss is clause IV of the Insuring Agreements. Under its terms liability for money lost through burglary, when that money is not within a safe within the premises, is limited to $50. The language employed is clear and unambiguous, and in our judgment is not rendered ambiguous by the general clause appearing on page one of the policy setting a limit to the amount of insurance under the Insuring Agreements. This latter clause should be construed as fixing the maximum liability where the particular insuring clause places no limitation on the amount recoverable. The two clauses when considered together are neither ambiguous nor repugnant. Our conclusion is that plaintiff is only entitled to recover the sum of $50 on account of money lost by reason of the burglary. In addition plaintiff is entitled to recover $10 for merchandise taken and $14 for glass breakage sustained as a result of the burglary, making the total sum due, $74. For said sum plaintiff is entitled to a judgment against defendant.

In addition, since defendant made no tender or offer of judgment under Civil Rules 77.22, 77.24 and 77.25, V.A.M.R., plaintiff is entitled to recover his costs.

Plaintiff is not entitled to recover the statutory penalty and attorney’s fee under the vexatious refusal-to-pay statute, R.S.Mo.1959, § 375.420, V.A.M.S. No recovery under the statute can be had where the insured seeks a recovery of more than that to which he is entitled. Boenzle v. U. S. Fidelity and Guaranty Co., Mo.App., 258 S.W.2d 938; Kahn v. London Assurance Corp., 187 Mo.App. 216, 173 S.W. 695; LaFont v. Home Insurance Co., 193 Mo.App., 543, 182 S.W. 1029.

The judgment appealed from is reversed and the cause remanded with directions to enter a new judgment in favor of plaintiff and against defendant for the sum of $74 together with the costs of the action.

RUDDY, J., and JOHN J. KELLY, Jr., Special Judge, concur.

WOLFE, J., not participating.