author: HOLLINGSWORTH, Judge.

text:
    Orion J. LITZINGER, Appellant, v. PULITZER PUBLISHING COMPANY, Respondent.
    No. 48922.
    Supreme Court of Missouri, Division No. 1.
    April 9, 1962.

      Lovell W. George, Clayton, for appellant.
    Robert D. Evans, Lewis C. Green, Green, Hennings, Henry, Evans & Arnold, St. Louis, for respondent.
   HOLLINGSWORTH, Judge.

Does the statute fixing venue of actions against corporations authorize plaintiff, a resident of St. Louis County, to bring in the circuit court of that county an action for allegedly libelous matter appearing in a newspaper published in the City of St. Louis by defendant, a domestic corporation domiciled in said city? The trial court held it did not. Plaintiff appealed. The amount in dispute vests this court with jurisdiction.

Plaintiff, a resident of St. Louis County and whose four-year term of office as sheriff ended on December 31, 1960, thereafter, on February 11, 1961, brought this action in the circuit court of that county to recover compensatory damages in the sum of $175,000 and punitive damages in the sum of $50,000 from defendant as publisher of the St. Louis Post-Dispatch for an allegedly libelous editorial published in said newspaper on December 21, 1960. The subject matter of the editorial dealt with plaintiff’s conduct as Sheriff of St. Louis County. Summons directed to the Sheriff of the City of St. Louis was issued and served on defendant in the City of St. Louis.

Specifically limiting its appearance for that purpose only, defendant filed verified motion to quash said summons and for dismissal of the action. The motion stated that defendant was a corporation organized under the laws of Missouri with its registered office and agent for the transaction of its usual and customary business in the City of St. Louis and that it did not have or usually keep an office or agent for the transaction of its usual and customary business in St. Louis County; that the action brought by plaintiff was based upon an editorial published in the St. Louis Post-Dispatch, which was a daily newspaper published in the City of St. Louis, which editorial was first published in said city; that if plaintiff had any cause of action against defendant by reason of the publication of said editorial it accrued in said city; that, therefore, no venue of the action existed in the Circuit Court of St. Louis County and said circuit court had no jurisdiction over the defendant; and that to require defendant to appear and defend the action would deny to it equal protection of the law guaranteed to it by the Fourteenth Amendment of the Constitution of the United States and by Section 2, Article One, of the Constitution of Missouri, V.A.M.S. The prayer was that “the return of service and summons directed to this defendant be quashed and this cause dismissed.” The court sustained the motion to quash the summons, but did not order dismissal of the action.

Thereafter plaintiff, by memorandum filed with the clerk, sought issuance of an alias summons, requesting “that same be delivered to the Sheriff of St. Louis County with instructions to serve said summons on the corporate defendant by delivering a copy thereof, and of the attached petition, to Asa Bryan, an agent kept by defendant in St. Louis County for the Transaction of its usual and customary business.” Based solely upon the recital set forth in the memorandum, alias summons was accordingly issued. Thereafter the Sheriff of St. Louis County filed his return reciting that the summons had been served “in the County of St. Louis Missouri on the within named defendant the Pulitzer Publishing Company (a corporation) by delivering on the 30th day of March 1961 a copy of the Summons and a copy of the Petition as furnished by the Clerk to Asa Bryan an Agent kept by the Pulitzer Publishing Company in St. Louis County for the transaction of its usual and customary business in St. Louis County.”

Again defendant, specifically limiting its appearance for that purpose, filed motion “to quash service and summons and to dismiss for lack of venue and lack of jurisdiction of defendant.” That motion, in substance, alleged the facts recited in defendant’s first motion to quash and further stated that the alias summons and petition “were not served on an officer, or a managing or general agent, or by leaving copies at a business office of the defendant with the person having charge thereof, or on an agent authorized by appointment or required by law to receive service of process” ; that the words “as agent kept by The Pulitzer Publishing Company in St. Louis County for the transaction of its usual and customary business in St. Louis County,” contained in the sheriff’s return, were sur-plusage and not within the provisions of S.Ct. Rule 54.06(c), V.A.M.R., that the insertion of those words in the return was an attempt by the sheriff to make a finding with respect to venue beyond his power and authority, and was an attempt by the sheriff to overrule the finding and order of the court and should be amended as authorized by S.Ct. Rule 54.12. The prayer was “that the return of service and summons directed to this defendant be quashed and this cause dismissed.”

Attached to said motion was an affidavit of Joseph F. Holland, special assistant to the publisher of the St. Louis Post-Dispatch, reciting, on information and belief, that “the St. Louis Post-Dispatch is a daily and Sunday newspaper printed and published in the City of St. Louis, Missouri, by The Pulitzer Publishing Company, a Missouri corporation, residing in the City of St. Louis, Missouri, with its office for the transaction of its usual or customary business and registered office and agent at 1111 Olive Street and 1133 Franklin Avenue, St. Louis, Missouri; that The Pulitzer Publishing Company does not have or usually keep an office or agent in St. Louis County, Missouri, for the transaction of its usual or customary business, nor has defendant any business office in said county; that its usual and customary business is that of publishing a newspaper, the St. Louis Post-Dispatch; that the St. Louis Post-Dispatch, including all issues printed and published on December 21, 1960, is first published in the City of St. Louis, Missouri; that Asa Bryan, a reporter of The Pulitzer Publishing Company, is not an officer, partner, or managing or general agent, or in charge of any business office of defendant, The Pulitzer Publishing Company, or authorized by appointment or required by law to receive service of process; and that no copy of the summons or petition has been mailed to defendant.” Plaintiff filed no counter-affidavit.

The court, having considered the motion, ordered: “Defendant’s motion to quash service and summons and to dismiss for lack of service heretofore filed and submitted herein, having been duly and fully considered is now by the Court hereby sustained. Court expressly withholds entry of order of dismissal for twenty (20) days from this date to allow plaintiff to make application for Writ of Prohibition, restraining this Court from entering such order of dismissal.”

Plaintiff filed motion in arrest of judgment of dismissal and for rehearing of defendant’s motions to quash the original and alias summons and service thereof, with his affidavit attached thereto stating that it was a matter of common knowledge among St. Louis County governmental officers that Asa Bryan was employed by defendant as a reporter or correspondent for the St. Louis Post-Dispatch assigned on a full-time basis to cover the St. Louis County Court House with desk space in said court house and with telephone listings in the St. Louis telephone directory, in which the “Clayton Court House” was given as the address of the “Post-Dispatch Correspondent.” The motion was overruled and the cause was dismissed. As stated, this appeal followed.

Our present statute, Section 508.040 RSMo 1959, V.A.M.S. (to which revision all statutory references are made unless otherwise stated), fixing venue of actions in which a corporation is the sole defendant, as material, provides and since prior to 1899 has provided:

“Suits against corporations shall be commenced either in the county where the cause of action accrued, * * *, or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.”

Statutes fixing the venue of actions brought against corporations in the county in which the cause of action arose or accrued have produced conflict of authority as to the proper venue of actions for libel against incorporated publishers of newspapers. See annotations, 37 A.L.R. 908 and 148 A.L.R. 477; 33 Am.Jur., Libel and Slander, § 227, p. 208; 92 C.J.S. Venue §§ 17 and 18, pp. 704-707. The first decision of this court on that subject was the case of Julian v. Kansas City Star Co., decided in 1907, 209 Mo. 35, 107 S.W. 496. There, a divided court held that under the above-quoted statute an action for libel against the publisher of an incorporated newspaper accrued in any county the newspaper was publicly circulated by the publisher despite the admitted fact that the newspaper was published in another county and the first publication of the alleged libel occurred there. Judge Graves, with Judge Lamm concurring, filed a strongly dissenting opinion. That decision was followed (with Judges Graves and Lamm continuing to dissent) until the case of Houston v. Pulitzer Publishing Co. (decided in 1913), 249 Mo. 332, 155 S.W. 1068, 1070, wherein the court overruled the Julian case and adopted, by reference, the reasoning in the dissent filed in the Julian case as the majority opinion of the court. The holding in the Houston case was that (1) under Rev.St.1899, § 997, providing that suits against corporations be commenced either in the county where the cause of action accrued or in any county where such corporations had an office or agent, an action for libel could be brought only in the county where the libel was first published or in the county of the residence of the plaintiff, and that, absent waiver, the court of no other county had jurisdiction; and (2) a statute that would allow one to sue a publishing corporation for libel in any county he chose where the allegedly libelous publications were circulated would be unconstitutional as depriving persons sustaining injuries from tortious acts other than libel of equal protection of the law and of their property without due process of law.

The reasons advanced in support of those conclusions were that libel published in a single edition of a newspaper, though that edition be widely distributed, actually afforded but one cause of action; that the venue statute permitting all actions in tort against a corporation to be commenced in the county where the cause of action accrued or in the county where the corporation had or kept an office or agent for the transaction of its business could not be legally upheld under either the federal or state constitutions to allow actions for libel to be brought in any county selected by the plaintiff wherein publication occurred in disregard of the fact that the first publication was made in the county where the newspaper was issued and the cause of action thereby had accrued in that county. This, for the reason that such a construction of the statute would give the plaintiff seeking damages for libel privileges of venue not allowed by law to the plaintiff in tort actions other than libel, in which the cause of action could accrue in only one county.

The Houston case, supra, has been consistently followed ever since its adoption. See Jones v. Pulitzer Publishing Co. (1914), 256 Mo. 57, 165 S.W. 304; Davidson v. Pulitzer Publishing Co. (1915), Mo., 178 S.W. 68; McClung v. Pulitzer Publishing Co. (en banc, 1919), 279 Mo. 370, 214 S.W. 193. In the latter case, 1. c. 197, it was said: “We believe that the rule laid down in Houston v. Pulitzer Publishing Co., * * *, is not only the established law of this state, but that it is also sound in legal principle.” In the McClung case the court also considered a statute, Laws 1909, p. 347, (enacted following the decision in the Julian case) which undertook to fix venue in suits for libel against corporations. That statute provided that such actions could be brought in the county in which the defendant was located or in which the plaintiff resided. Its validity was not challenged until the McClung case. There it was held unconstitutional. After holding the act of 1909 unconstitutional, the court went on further to declare, 214 S.W. 193, 196: “So, then, we conclude that since the decision in Houston v. Pulitzer Publishing Co., 249 Mo. 332, 155 S.W. 1068, decided April 8, 1913, this court has been of the opinion that the Legislature has not the authority under the state and federal Constitutions to provide that the venue in libel suits shall be that the individual charged with libel may only be sued in the county where he resides, or where the plaintiff resides if the individual is there found, but that in the case of a corporation charged with libel the corporate defendant may be sued in a county in this state where neither the action accrued nor the corporation has its domicile or agent for the transaction of business, and that the Legislature may not provide that a citizen of the state, who is plaintiff in a libel suit, can sue a corporate defendant charged with libel in the county where the citizen resides, while a citizen, as plaintiff, who charges an individual defendant with committing a libel, cannot sue the defendant in the county in which the plaintiff resides, unless the individual defendant shall be found in the county where the plaintiff resides.” See also Begley v. Mississippi Valley Trust Co., Mo., 252 S.W. 84, 86.

Following the decision in the McClung case, the Legislature repealed the act of 1909. See Laws 1931, p. 188. Since the repeal of that act, the Legislature, with knowledge of the construction placed upon the presently existing venue statute, § 508.-040 (as it bears upon venue of actions for libel brought against corporate publishers of newspapers as declared in the Houston case and subsequent cases) has taken no action to alter its provisions.

Plaintiff expressly concedes that the law as declared in the Houston, Jones, McClung and Davidson cases, supra, “up to this date, is still the law in Missouri.” But, although admittedly aware that “no law can be cited to substantiate his position,” he asserts that inasmuch as the editorial attacked him in his capacity as sheriff in St. Louis County, it “was capable of inflicting injury * * * only in St. Louis County, wherein, to the exclusion of the City of St. Louis and all other counties of this state, plaintiff enjoyed an ‘official’ existence.” His argument is that the existence of the “official person” of plaintiff was limited to the boundaries of the county and that “injury” is an essential element of libel; ergo, there was no injury to the “official person” of plaintiff until the newspaper reached the county. Consequently, he insists, his cause of action did not accrue upon the first publication in the City of St. Louis, but that it accrued in St. Louis County when the newspaper publicity came to the readers in St. Louis County.

The specific contention is novel but basically it is not new. For instance, in the Julian case, 107 S.W. 496, in the dissenting opinion filed and which, by reference, was adopted as the majority opinion in the Houston case, 155 S.W. 1068, 1070, it was said, l.c. 510: “The extent of the publication may be shown to enhance the damages, and the suit thereby draws to itself all the alleged causes of action, and makes of them all the cause of action mentioned by the statute. The courts have made this rule of law because to permit a great multiplicity of suits for the one libelous article would be to shock the sense of justice and right.” The holding there announced has been followed in other states. See Age-Herald Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193, 196, 37 A.L.R. 898, and the more recent case of Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344, 346, 148 A.L.R. 469; and other cases therein cited.

We are forced to the conclusion that plaintiff’s contention of non-accrual and impossibility of accrual of plaintiff’s alleged cause of action until an issue of the St. Louis Post-Dispatch carrying the article complained of reached St. Louis County is specious. However ingenious the argument may at first blush appear, the fact remains that venue of plaintiff’s action for defamation, be its impact upon him individually or upon his “official person,” must be determined by statute. We may not ignore the origin of the injury and arbitrarily fix its genesis at that moment when it first invaded his own county. Neither may we fix venue with an eye to the advantages or disadvantages to either party in the application of a sound rule. This does not mean that all of plaintiff’s legal damages, compensatory and punitive, whether resulting from libel of him as an individual or of his “official person,” or wherever sustained by reason of the circulation of defendant’s newspaper, may not be shown and awarded in the court of lawful venue: it means that they may.

Consequently, we hold that plaintiff’s cause of action, if any he has, accrued in the City of St. Louis and that statutory venue lies only in the City of St. Louis, unless, perchance, venue may also lie in St. Louis County by virtue of the provisions of § 508.010, which, to the extent here material, provides:

“Suits instituted by summons shall, except as otherwise provided by law, be brought:
“(1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may he found; * * (Emphasis supplied.)

That question was not presented in any of the cases above cited and plaintiff frankly concedes that he invoked this statute by reason of the limited order made by the trial court sustaining defendant’s first motion to quash the summons and dismiss the action only to the extent of quashing the summons. This, he says, made it incumbent upon him to procure issuance of the alias summons and obtain a ruling upon its effectiveness in order to “set the stage” for a final judgment of dismissal from which an appeal would lie. In this connection, he further frankly states that the primary purpose of his appeal is to ask the court to re-evaluate the interpretation placed upon the “accrual-of-the-cause-of-action clause” of the venue statute in the Houston and subsequent cases. But, nonetheless he briefs the contention and, in his brief, presses it upon us.

Although defendant is admittedly a resident of the City of St. Louis and is amenable to service in that city under the provisions of § 508.010, supra, plaintiff now insists that defendant also has an office and agent for the transaction of its usual and customary business in St. Louis County and that, inasmuch as § 508.040 provides that suits against corporations (when the sole defendant) shall be commenced in the county where they have an office or agent for the transaction of their, usual or customary business, defendant, therefore, may be “found” in St. Louis County; and plaintiff insists it was so “found.”

For the reasons hereinafter stated,- we need not here meet the question whether, if defendant did have an office or agent in St. Louis County for the transaction of its usual or customary business, this action could be brought against it in St. Louis County under § 508.010, upon the thesis of its being “found” in the county in which plaintiff resided.

S.Ct. Rule 54.06(c), taken largely from § 27 of the Code of Civil Procedure as enacted Laws 1943, p. 353, provides that service of process upon a domestic or foreign corporation be effected “by delivering a copy of the summons and of the petition to an officer, partner, or a managing or general agent, or by leaving the copies at any business office of the, defendant with the person having charge thereof or by delivering copies to any other agent authorized by appointment or required by law to receive service of process, ⅜ * *.” No pretense is made that service was had upon an officer, partner or a managing or general agent or by leaving copies at any business office of the defendant with the person having charge thereof. To the contrary, the only evidence presented at the hearing on the motion to quash was an affidavit of defendant’s official expressly stating that no such service was had. The affidavit also further stated that defendant did not have an office or agent in the county for the transaction of its usual or customary business (that of publishing a newspaper in the City of St. Louis) and that Asa Bryan, upon whom service was attempted, was a “reporter” in the employment of defendant. Such an affidavit, undenied, constituted competent evidence of the facts therein stated. S.Ct. Rule 55.31 (formerly Section 509.290); State ex rel. McCarter v. Craig, Mo., 328 S.W.2d 589. And, in the motion filed by plaintiff in arrest of judgment, it was admitted that Asa Bryan was a “reporter” on a full-time basis, to “cover” the court house in collecting and transmitting information in regard to news events, with desk facilities in the “press room” of the court house and telephone service listed in the St. Louis telephone directory: “Post-Dispatch Correspondent, Clayton Court House, Parkview 7-3313 — 7-8173.” Moreover, plaintiff commendably concedes that all of the cases found by him definitely hold or indicate that service on a newspaper reporter with an office and telephone facilities is insufficient to confer jurisdiction under statutes similar to the statute here involved. One of those cases is Lee v. Memphis Pub. Co., 195 Miss. 264, 14 So.2d 351, 152 A.L.R. 1428, in which a foreign newspaper company, incorporated in Delaware, maintained an office in charge of its reporter in Webster County, Mississippi, with a sign thereon reading: “The Commercial Appeal — Mississippi Office— N ews- — Circulation—Advertising.” That court held that the reporter was not an agent of defendant so as to authorize maintenance of a libel action brought against the newspaper in Webster County, in which the libel action allegedly accrued. Two other cases are Neely v. Philadelphia Inquirer Co., 61 App.D.C. 334, 62 F.2d 873, and Layne v. Tribune Co., 63 App.D.C. 213, 71 F.2d 223, in both of which it was held that maintenance of offices in Washington, D. C., with “correspondents” in charge thereof for the purpose of gathering and transmitting news, did not constitute “doing business” there even though several other employees worked in each office. Independent research has revealed nothing detracting from these holdings. We are convinced that these cases are soundly ruled.

That portion of the return of the sheriff reciting that Asa Bryan was “an agent kept by the Pulitzer Publishing Company in St. Louis County for the transaction of its usual and customary business in St. Louis County” cannot be - permitted to stand in the light of the admitted facts in this case. As stated, the return of the sheriff shows a clear failure of lawful service as required by S.Ct. Rule 54.06(c), and the statement made in that return as to Asa Bryan’s being an “agent” of defendant, etc., is volunteered surplusage. It cannot foreclose the defendant of its right to proper venue nor the court of its judicial power to determine that question, as the court was authorized to do under the express provisions of S.Ct. Rule 55.31. State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W. 2d 62, 66; Stanley v. Sedalia Transit Co., 136 Mo.App. 388, 117 S.W. 685; Coerver v. Crescent Lead & Zinc Corp., 315 Mo. 276, 286 S.W. 3, 10-12; C. Rallo Contracting Co. v. Blong, Mo.App., 313 S.W.2d 734, 736.

In the light of the facts, it must he held that defendant could not be “found” in St. Louis County within the meaning of § 508.010 of the venue statutes.

Finally, plaintiff, in his motion for “arrest of judgment of dismissal and for rehearing of defendant’s motion to quash service and dismiss action,” for the first time asserts that the relief sought by defendant in its motions to quash would and the judgment of the trial court in granting the relief sought in those motions did deprive plaintiff of “due process of law” and of the equal protection of the law as guaranteed by Article I, § 2, of the Constitution of Missouri, and of the guarantees set forth in Article I, § 14, of the Constitution declaring that the courts shall be open to every person and certain remedy afforded for every injury and right and that justice be administered, etc.

Constitutional challenges to the validity of any alleged right or defense asserted by a party to an action must be raised at the earliest opportunity consistent with good pleading and orderly procedure. In this case, the challenge made by plaintiff clearly came too late. Securities Acceptance Corp. v. Hill, Mo., 326 S.W.2d 65, 66; State v. Brookshire, Mo., 325 S.W.2d 497, 500. But in any event we think the reasoning set forth in the cases upon which we have based the decision in this case so com-petely refutes the contention of alleged unconstitutionality of the judgment herein rendered as to require no further discussion.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: EAGER, Presiding Judge.

license: Public Domain

text:
    Thomas Charles WIBER, Appellant, v. Donald H. MANA, Jr., Respondent.
    No. 48689.
    Supreme Court of Missouri, Division No. 2.
    April 9, 1962.

      Henry W. Simpson, William L. Mason, Jr., St. Louis, for appellant.
    Evans & Dixon, Eugene K. Buckley, St. Louis, for respondent.
   EAGER, Presiding Judge.

Plaintiff sued for personal injuries arising out of an automobile collision occurring in St. Louis County on November 4, 1959. Following a verdict for defendant, and the overruling of plaintiff’s motion for a new trial, plaintiff appealed. The point raised here involves the propriety of an instruction, but we shall need to state the facts.

Plaintiff owned a 1958 Berkeley sports car; this was a very small car, less than 4 feet in width. Just prior to the collision he had been at a cocktail lounge called the “Cove,” where he met a young lady whom he knew. At the time of the collision about 1:30 a.m., he was endeavoring to take her home in that car. Defendant had also been at the “Cove,” and he left at about the same time as plaintiff, driving a 1952 Plymouth. The collision occurred on the eastbound section of Natural Bridge Road, about 90 feet east of the cloverleaf located at the intersection of Natural Bridge and Jennings Road. The “Cove” is perhaps a short block north of Natural Bridge, and is on or very near Jennings. Plaintiff had driven south on Jennings in order to go east on Natural Bridge. At the cloverleaf his car stalled in a puddle of water, but he managed to get it started after about 5 minutes. Proceeding thence east on Natural Bridge, his car stalled again about 90 feet east of the cloverleaf and near the center of the three-lane eastbound section. The three-lane roadway was 30 feet wide. If plaintiff’s car was not precisely in the center lane, it was in such a position that cars readily passed him on both his right and left. The car had been stalled for at least 5 minutes at the time of the collision; plaintiff remained in the car and intermittently used the starter. Defendant, upon leaving the “Cove,” had driven westward a long block and entered Natural Bridge there; he explained that this was due to his parking location, but that is immaterial. He then proceeded easterly and came upon plaintiff’s stalled car. According to defendant, he was traveling about 25 miles an hour, it was raining and was dark, and the rain obscured his vision. He further testified: that when he first saw plaintiff’s car it was right in front of him, about two ordinary car lengths ahead; that he applied his brakes and swerved to the left, but that his right front fender struck the car, pushing it chiefly to the side; that there were no lights on plaintiff’s car. His direct statement that there were no lights was followed by statements to the effect that he saw no taillights burning and that he looked in such a manner that he would have seen them. Defendant’s right front headlight was broken and his right front fender dented.

Plaintiff’s evidence was, in substance: that it had been raining, but he thought it had stopped; that this location was near a Katz store, where the inside night-lights were on; that there was a street light nearby, and that the visibility was good; that one car stopped and the driver offered to push him, but he was afraid that the bumper would override his; that his headlights and taillights were working properly when he parked at the “Cove” about midnight; that both worked on one switch, and that his lights were on while he was stalled on Natural Bridge; that he was hit violently from the rear with no prior warning. In view of the limited issue here, the other evidence is not material.

Plaintiff submitted a negligent failure of defendant to keep a vigilant lookout as the direct cause of the collision and his injuries. Defendant’s sole instruction on the merits was his No. 5, which was as follows: “The Court instructs the jury that the law of the State of Missouri requires that every person who is in custody of a motor vehicle on any street from a half hour after sunset to a half hour before sunrise shall have displayed upon the rear of said vehicle a lighted red lamp.

“In this regard, the Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence, at a time between a half hour after sunset and a half hour before sunrise, plaintiff Thomas Charles Wiber was in custody of and was operating his Berkeley sports car mentioned in evidence eastwardly upon Natural Bridge Road, and that said sports car became stopped upon the eastbound traveled portion of said Natural Bridge Road, and if you further find that plaintiff permitted said sports car to be and remained stopped upon the eastbound traveled portion of Natural Bridge Road without having a lighted red lamp displayed on the rear of said sports car, and that in so permitting said sports car to be and remain stopped without having a lighted red lamp displayed on the rear thereof, if you so find, the plaintiff Thomas Charles Wiber failed to exercise the highest degree of care and was negligent, and if you further find that such negligence, if any, on the part of the plaintiff, directly contributed to cause defendant’s automobile to collide with the rear of plaintiff’s said sports car, then you are instructed that your verdict should be against the plaintiff and in favor of the defendant, and this is true regardless of whether or not defendant was also negligent.”

Plaintiff’s contentions of error concerning that instruction, all of which were fairly raised in his motion for a new trial, are: that the instruction “must” be based on § 304.450, RSMo 1959, V.A.M.S., and, being a verdict-directing instruction, it must hy-' pothesize all essential elements; that it fails to negative the statutory exception permitting cities, towns and villages to regulate the matter of lights by their own parking regulations; also, that the instruction is confusing and misleading in using the term “lighted red lamp” instead of “a red light.”

It was obviously necessary for this instruction to hypothesize all the material elements of a defense of contributory negligence. And we may assume, as plaintiff suggests, that the instruction was intended ■to present a defense of contributory negligence based on our statutes and not on the common law. But it does not follow, as plaintiff suggests, that the instruction “must * * * be based on * * * Sect. 304.450” RSMo 1959, V.A.M.S. (to which revision all statutory references herein will be made). Section 304.450 is as follows: “Parked vehicles — how lighted — exception. Whenever a vehicle is parked or stopped upon a highway or shoulder adjacent thereto, whether attended or unattended during the times when lighted lamps are required, such vehicle shall be equipped with one or more lamps which shall exhibit a white light on the traffic side visible from a distance of five hundred feet to the front of such vehicle and a red light visible from a distance of five hundred feet to the rear; provided, that local authorities in cities, towns and villages may provide by ordinance that no lights need be displayed upon any such vehicle when stopped or parked in accordance with local parking regulations upon a highway where there is sufficient light to reveal any person or object within a distance of five hundred feet upon such highway. Any lighted head lamps upon a parked vehicle shall be depressed or dimmed.” Plaintiff suggests that it is "likely” that Pine Lawn had an ordinance regulating lights on “stopped” vehicles, and that Instruction No. 5 should have required a finding thereon. It is doubtful, to say the least, if the evidence really shows that this collision occurred within the limits of Pine Lawn, but we do not rest our decision upon that deficiency.

Plaintiff says that § 304.450, just quoted, is the only statute which “touches the subject of lights required on an auto stopped on a highway * ⅜ ⅜.” And he further says that defendant elected to submit his defense on a violation of this statute, and thereby abandoned any other theory of contributory negligence, citing Guthrie v. City of St. Charles, Banc, 347 Mo. 1175, 152 S.W. 2d 91. There need be no argument about the general principle that where a party submits only one or more of his pleaded issues or specifications of negligence, he abandons the rest. But that is not quite our point. Defendant pleaded contributory negligence generally, and he submitted contributory negligence in the terms of Instruction No. 5. That instruction may rest upon any regulatory statute which supports it, and it does not follow that it rests upon § 304.450. Section 304.270(9) provides when “lighted lamps” shall be required (and there can be no controversy that 1:30 a.m. is within the required period). Section 304.310 provides in part: “When lights required. No person shall drive, move, park or be in custody of any vehicle or combination of vehicles on any street or highway during the times when lighted lamps are required unless such vehicle or combination of vehicles displays lighted lamps and illuminating devices as this chapter required. * ⅜ * Section 304.380 provides, in part: “Tail lamps. 1. Every motor vehicle and every motor-drawn vehicle shall be equipped with at least one rear lamp, not less than fifteen inches or more than forty eight inches above the ground upon which the vehicle stands, which when lighted will exhibit a red light plainly visible from a distance of five hundred feet to the rear; * ⅜ *.” The terms of § 304.-310, supra, are sufficiently comprehensive to cover this situation and it, together with § 304.380, supports the instruction. Certainly the defendant was “in custody” of a vehicle on a street or highway at a time when “lighted lamps” and “one rear lamp” were required. If § 304.450 were applicable, it could not exclude the applicability of the other sections. There was and is clear statutory authority for this instruction independent of § 304.450. Those statutory provisions contain no exceptions for the provisions of municipal ordinances, and we hold that defendant was entitled to submit an instruction founded upon them, disregarding the exception of § 304.450. Even if we should assume the applicability of § 304.450 here, plaintiff testified that no parking was permitted in this particular area, and his binding admission of that fact would, in itself, eliminate any possible effect here of “local parking regulations.” Moreover, it seems obvious that the exception of § 304.450 was intended to apply to parking, and not to the temporary stopping of a stalled car in the middle of a through street or highway. It was wholly unnecessary for defendant to hypothesize the absence of any “local parking regulations” here.

It has been held on various occasions that it is negligence per se to allow a vehicle to remain at rest without lights (or without a taillight) on a highway, during the period when lights are required. Cotton v. Ship-By-Truck Co., Banc, 337 Mo. 270, 85 S.W.2d 80; Nickels v. Borgmeyer, Mo.App., 258 S.W.2d 267; Haley v. Edwards, Mo., 276 S.W.2d 153; Taylor v. Silver King Oil & Gas Co., Mo.App., 203 S.W.2d 147; Roux v. Silver King Oil & Gas Co., Mo.App., 244 S.W.2d 411; Ensminger v. Stout, Mo.App., 287 S.W.2d 400; Leek v. Dillard, Mo.App., 304 S.W.2d 60. In fact, defendant here assumed a somewhat greater burden than was necessary when he required a specific finding to the effect that defendant was negligent in failing to have a rear lamp. For cases involving somewhat similar situations or submissions, see: Cox v. East St. Louis City Lines, Mo.App., 181 S.W.2d 193; Arky v. Kessels, Mo.App., 262 S.W.2d 357; Leek, supra; Roux, supra; Ensminger, supra.

The remaining point submitted is that the instruction was confusing and misleading because it referred to a “lighted red lamp” required at the rear of the car, instead of a “red light” as mentioned in § 304.450. Proceeding, and citing Webster’s International Dictionary, 2nd Ed., counsel say that “lamp” primarily means a “vessel with a wick * * and that the average juror would take this to mean that plaintiff was required to hang a fed kerosene lamp or lantern on the rear of his car, and that a regular taillight was not enough, especially since no reference was made during the trial to a red lamp. This argument is not at all convincing, — either from a legal standpoint or that of common sense. Section 304.270 (9) refers to “lighted lamps”; § 304.310 refers to “lighted lamps”; and § 304.380 (taillamps) requires “one rear lamp * * * which when lighted will exhibit a red light * * There was clear statutory authority for the use of the term. In our world today there are millions of electric lamps; no jury could be so dull and unimaginative as to think that this instruction required a lantern. If more were needed, we note that counsel for defendant specifically explained in the argument, after quoting from the instruction the reference to a lighted red lamp, — “that is what you and I call a tail light, a lighted tail light * * * ”; and he continued thereafter to refer to a “taillight.” He put the ultimate issue to the jury, thus — “Was there a tail light on that automobile,” — and argued that all the lights were switched off to conserve the battery. Plaintiff’s counsel joined in that issue by asking the jury if it believed that plaintiff’s “tail lights honestly were out.” Under these circumstances it is clear that the issue of taillight or no taillight was plainly submitted and determined and no one was misled. We have referred to the arguments solely for that purpose.

We find no error in the giving of the instruction and the judgment is affirmed.

All of the Judges concur.


author: HOLMAN, Commissioner.

text:
    Mrs. Loma PERRY, Appellant, v. STOCKHOFF SUPPLY COMPANY and George Jasper, Respondents.
    No. 48591.
    Supreme Court of Missouri, Division No. 1.
    April 9, 1962.

      John J. Relies, Clayton, William L. Mason, Jr., St. Louis, for appellant.
    Hartman, Guilfoil & Albrecht, Edmund C. Albrecht, Jr., James L. Homire, Jr., St. Louis, for respondents.
   HOLMAN, Commissioner.

Plaintiff instituted this action against Stockhoff Supply Company and George Jasper, defendants herein, in an effort to recover damages in the sum of $26,800 for personal injuries and property damage resulting from an automobile collision. The jury returned a verdict in favor of both defendants. Plaintiff has appealed from the judgment entered upon said verdict and in this court has briefed the sole contention that the trial court erred in giving Instruction No. 4 at the request of the defendants.

The collision in question occurred at about 10:30 a. m. on July 27, 1959, on Page Avenue in St. Louis, Missouri. That street runs east and west and at collision point has six traffic lanes. Parking is permitted in the two outside lanes which leaves two lanes for traffic in each direction. The center of the street is marked by two white lines. Plaintiff was driving her car west on Page. Defendant Jasper was driving a Stockhoff Supply Company truck and was also proceeding west on Page Avenue. Admittedly, plaintiff’s car was going west in the inside eastbound lane (her wrong side of the street) at the time it collided headon with an eastbound pickup truck driven by one Green.

Plaintiff testified that just prior to the collision she had been driving her car in the inside westbound lane and that the truck driven by Jasper was alongside her car in the lane to her right and that the truck suddenly “drifted” over into her lane and came into forcible contact with her car causing her to lose control of her car with the result that it moved to the left of the center line and collided headon with the Green truck.

Defendant Jasper testified to a much different version of the occurrence. He stated that he was driving his truck in the inside westbound lane when he saw in his outside rear-view mirror that plaintiff’s car was starting to pass his truck on his left in the north eastbound lane; that he realized that the car was on the wrong side of the street and therefore applied the brakes and stopped his truck so that plaintiff’s car could be driven in front of him and onto the right side of the street, but that plaintiff’s car continued in the eastbound lane and collided with the Green truck about two truck lengths west of the point where he stopped his truck. Mr. Jasper denied that there was any contact between his truck and plaintiff’s car.

As stated, plaintiff complains of Instruction No. 4, which reads as follows: “The court instructs the jury that the burden of proof is upon the plaintiff Loma Perry to prove by the preponderance, that is, the greater weight of the credible evidence, that the defendants, Stockhoff Supply Company and George Jasper, were guilty of negligence which directly and proximately caused or contributed to cause the plaintiff’s injuries and loss, if any, and this burden continues and abides with the plaintiff throughout the entire trial; and unless you find and believe from the evidence that the plaintiff has proved by the preponderance or greater weight of the credible evidence that the defendants, Stockhoff Supply Company and George Jasper, were guilty of negligence which directly arid proximately caused or contributed to cause the plaintiff’s injury and loss, if any, then your verdict must be for the defendants, Stockhoff Supply Company and George Jasper.”

Plaintiff contends that this instruction is erroneous because it directs a verdict for defendants unless the jury finds negligence on the part of Stockhoff as well as the individual defendant. It is said that the requirement of a finding of negligence on the part of Stockhoff causes the instruction to conflict with Instruction No. 1 and was unnecessary and confusing because of admissions made by defendants in their answers.

Plaintiff’s first amended petition contained the following allegations: “The defendant, Stockhoff Supply Company * * * is engaged in the supply business and in the course of the operation of said business, at all times hereinafter mentioned, acting by and through its agents, servant and employee, defendant George Jasper, was in charge and control of and operating the hereinafter-mentioned motor truck.” Those allegations were admitted in the answer of each defendant. Thereafter, in paragraph 4 of said petition, plaintiff alleged negligence on the part of both defendants in a number of respects, and those allegations were denied by the defendants.

The admissions heretofore set out were not read to the jury nor was the jury advised thereof by any statement of the court or counsel, or in any instruction given by the court, or in any other manner. As a result of said admissions plaintiff’s main verdict-directing Instruction No. 1 did not require a finding of negligence on the part of Stockhoff. It hypothesized certain facts relating to the operation of “the truck” by defendant Jasper, required a finding that such conduct was negligence and that such negligence directly caused the collision between plaintiff’s car and the Green automobile, and concluded by directing a verdict in favor of plaintiff and against both defendants.

In view of the foregoing admissions we do not think plaintiff’s Instruction No. 1 was erroneous in directing a verdict against Stockhoff upon a finding of proximate negligence on the part of defendant Jasper. However, when considered alone, defendants’ Instruction No. 4 would not appear to be erroneous in form in requiring a finding of negligence on the part of each defendant. Plaintiff had alleged negligence on the part of both defendants and their answers had denied such. Plaintiff had the burden of proving that negligence. However, when we consider the admissions heretofore quoted, in the light of the doctrine of respondeat superior, plaintiff could prove the negligence of Stockhoff simply by proving negligence on the part of its employee Jasper.

Instructions 1 and 4 were consistent in the sense that they properly required a verdict for or against both defendants and made no provision for a verdict against only one of them. They were, however, somewhat inconsistent in that No. 4 required a finding of negligence on the part of both defendants as a condition to a verdict against them, while No. 1 directed a verdict against both defendants upon a finding of proximate negligence on the part of defendant Jasper only. While neither of these instructions contained any incorrect statement or misdirection, we think that if only these two instructions were considered they could have been confusing to the jury.

In the circumstances here presented, however, all of the instructions may be read and construed together and, when that is done, if they are not conflicting, misleading or confusing the verdict will be sustained even though one or more of the instructions, considered separately, would have been misleading if it had not been explained or supplemented by other instructions. Nelson v. Tayon, Mo.Sup., 265 S.W.2d 409; St. Louis Housing Authority v. Bainter, Mo.Sup., 297 S.W.2d 529.

Instruction No. 2, given at the request of plaintiff, reads as follows: “The court instructs the jury that in connection with the issue of burden of proof in this case, if you find and believe from the preponderance or greater weight of the credible evidence that the facts are as submitted to you in Instruction No. 1, then the plaintiff, Mrs. Loma Perry, has met and carried the burden of proof imposed upon her by law and under the instructions herein.”

Instruction 4 was the only burden of proof instruction given. Instruction No. 2 told the jury, in effect, that if it found the facts submitted in Instruction No. 1, that was all that was required in order to carry the burden of proof imposed by Instruction No. 4. Instruction No. 2 would likely have eliminated any confusion that might otherwise have been created by Instructions 4 and 1. However, regardless of the effect of Instruction No. 2, we are of the view that if counsel for plaintiff were fearful that said instruction was not sufficient to cure any confusion that might arise from the language in Instruction No. 4 they should have offered an instruction more explicitly explaining plaintiff’s theory of the proof required. Had she requested it plaintiff would have been entitled to an instruction telling the jury of the admissions made by defendants in the pleadings, and that in consequence thereof the acts of Jasper at the time and place in question were the acts of Stockhoff, and that a finding of proximate negligence on the part of Jasper (as hypothesized in Instruction No. 1) would be sufficient to meet the burden of proof required by Instruction No. 4 and to require a verdict against both defendants. Under the circumstances of this case we think it was the obligation of plaintiff to offer an instruction which would have explicitly clarified any confusion she thought might result from the jury’s consideration of Instructions 1 and 4, and if she did not do so she is in no position to complain that the jury was misled and confused by Instruction No. 4. Williams v. Guyot, 344 Mo. 372, 126 S.W.2d 1137; Jenkins v. Wabash R. Co., Mo.Sup., 322 S.W.2d 788; Nelson v. C. Heinz Stove Co., 320 Mo. 655, 8 S.W.2d 918.

What we have heretofore said will indicate our view that the giving of Instruction No. 4 did not constitute reversible error.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: HOUSER, Commissioner.

text:
    Frank LORRAINE et al., Plaintiffs-Appellants, v. Isabel DIXON, Also Known as Isabel Dixon Deis, Defendant-Respondent.
    No. 48813.
    Supreme Court of Missouri, Division No. 1.
    April 9, 1962.
    John B. Sharpe, St. Louis, for appellants.
    Charles E. Wells, St. Louis, for respondent.
   HOUSER, Commissioner.

This is an action originally brought by Estella Lorraine, a 77-year-old widow, to set aside a quitclaim deed dated March 12, 1956. The grantee in the deed is Isabel Dixon, a daughter of the grantor. The real estate conveyed was a tract of 1.227 acres in St. Louis County, the grantor’s “home place.” The grounds for cancellation were that plaintiff signed a quitclaim deed in the mistaken belief that she was signing a will; misrepresentation, and that the deed was given without consideration and upon the basis of an agreement which was subsequently breached and renounced by the parties. Defendant admitted the execution and recording of the quitclaim deed, but denied all other allegations of the petition. After issue joined, and some 14 months after the petition was filed but before trial, plaintiff died. On motion four of her children were substituted in her place as parties plaintiff. At the conclusion of plaintiffs’ evidence defendant orally moved the court to enter judgment in her favor. The court sustained the motion on the ground that plaintiffs “failed to make a sub-missible case under the pleadings and evidence.” Following an unavailing motion for new trial plaintiffs appealed from the judgment in defendant’s favor.

The petition alleged that on March 12, 1956 Estella, the mother, and Isabel, the daughter-defendant, made an agreement, while the mother was seriously ill in a hospital, for the support and maintenance of the mother for the rest of her natural life, in consideration of which the mother would bequeath the real estate to the daughter by will; that by mistake the mother signed a quitclaim deed believing that she was signing a will; that the mother lived with the daughter continuously after leaving the hospital until July 27, 1958 when the daughter “due to violence to her person and the insistence of defendant that she no longer support and maintain plaintiff,” forced the mother to leave the daughter’s residence and seek a home elsewhere, in breach of the agreement; that the quitclaim deed is void for mistake, misrepresentation and lack of consideration; that the agreement for support and maintenance has been breached and renounced by defendant; that defendant collected the rents and income from the property from March 12, 1956 and appropriated them to her own use. The prayer was for cancellation of the quitclaim deed or in the alternative for cancellation of the agreement and an order directing an accounting and reconveyance of the real estate.

In 1955 Estella Lorraine, who had inherited the “home place” from her husband, lived there with three of her eight children: Frank, the oldest son; Fiéis, a daughter, and Eugene, an afflicted son. In 1955 Estella underwent a cancer operation. Frank testified that his mother “always” told him she wanted “to give her property to somebody who would take care of Eugene and her”; that after she returned from the hospital she was unable to take care of herself, and he advised her she could not stay there by herself; that someone would have to stay with her and Eugene; that he suggested she turn over the property to him and he would stay there, “fix the place up,” with his own money, and take care of her and Eugene. Curiously Frank also testified that two or three times his mother asked him to take the property but he told her he did not want it. Apparently there was a tug of war going on between the children over the disposition of the property. Frank testified that “one was trying to get her to sign papers, the other was trying to get her to sign papers to turn her place over to them; one would tell her not to give it to somebody else and they had her all confused”; that “there was all kinds of papers. Fleis had a paper to sign * * * trying to make a will deeded [ ?] over to her.” Frank had a lawyer fix up a paper “that [Frank would] take care of Eugene as long as [he] could; and if [he] couldn’t take care of him, well, then somebody else would take the place,” but when the other children read the paper “they all commenced to holler. Fil and she blew up. * * * [Frank] went home and * * * tore it up in front of Mom, and * * * said, ‘They’re all against it and you can’t do anything about it; so do whatever you feel with it. I want no part of it.’ ” Frank testified his mother “said she’d will the place to Isabel to take care of her and the boy [Eugene] as long as she lived.” Frank feared that if left alone his mother would “fall on the flames of the stove, or something, trying to cook.” Since he had to work during the daytime he found it impossible to keep her. He and his sister Isabel discussed the situation and agreed their mother should live at Isabel’s house (also in St. Louis County). This was not to Estella’s liking. She wished to stay at her own home. At the insistence of the children, however, Estella was taken to live at Isabel’s house on or about January 2, 1956. On March 8, 1956 Estella was stricken. She appeared to be unconscious; did not talk, and stared up toward the ceiling. She was suffering from heart trouble, high blood pressure and diabetes. Taken to the hospital that day, oxygen was administered to her. She was “just lying there,” motionless, and did not seem to recognize Frank when he entered the room that night. Frank saw a person “walking up the aisle” at the hospital, whom he later learned was Isabel’s attorney. Estella remained at the hospital until March 18, 1956. The quitclaim deed from Estella to Isabel was dated March 12, 1956. There is no evidence in this record with respect to the facts and circumstances surrounding the execution of the deed. The hospital record of March 12, 1956 shows Estella Lorraine was cheerful, with no complaints, at 9 a. m.; resting quietly at 10 a. m.; comfortable at 11 a. m.; dosing at intervals at noon; ate well, cheerful and no complaints at 1p.m.; resting quietly at 2 p.m.; taken to X-ray for chest plates and back to the room between 2:30 and 3 p.m.; “Good day” was noted at 3 p. m. She ate her supper well at 5:30 p. m. and was resting. The nurse’s note at 7 p. m. was “good day.” She had visitors at 8 p. m. At 9 p. m. she took a nonsedative tablet. She was not under sedation on that day or any other day during her March, 1956 stay at the hospital. She was taking medicine to control her cardiac condition, and dilation of the blood vessels.

Shortly after Estella left the hospital in March, 1956, Isabel called Frank to her home to discuss finances. According to Frank he and Isabel, Isabel’s husband and Estella sat around the kitchen table and talked. Isabel showed Frank the hospital bill of $125 and a long list of the medicines she and her husband had bought, and told Frank he “ought to pay something.” He was willing. Isabel suggested he do so by paying rent on the home place where he was living; that the rent money be applied to the payment of the medicine bill. Frank asked his mother how much rent she wanted him to pay. Estella did not know. Frank then offered his mother $20 a month, to which his mother agreed. Nothing was said on that occasion about the mother already having deeded the property to Isabel, but Isabel did say that her mother would stay with her; that Isabel was going to take care of her mother and give her a good life; that “she ain’t got very long to live and as long as she lives, she’ll have a good home”; that “Mom is going to will me the place to take care of her and Eugene.” On that same occasion Isabel said “Mom willed it to me to take care of her and Eugene as long as she lived.” Frank heard Isabel tell Estella that she, Isabel, wanted the property deeded to her; that Isabel’s father in his lifetime had told Isabel she could build on the ground (at a time when the tract consisted of five acres), so she thought she was “entitled to it” after “she had contracted this deed that she’s got now. But she made out there was a will to confuse everybody and nobody knew nothing about it until after [Frank] got a different lawyer to investigate the case; because she told me over the phone that — afterwards, again, that it was a will that was made right. So [Frank] said ‘Well, as long as it’s made right, okay, I’m satisfied; somebody has to take care of it.’ ” Thereafter Frank paid his mother $20 a month for some 10 months. The first three months he paid in cash and took a receipt. The next seven months he paid by checks made payable jointly to his mother and Isabel. Subsequently Frank offered to buy the place from his mother. He offered her “around $5,000, maybe a little better,” payable “fifty dollars a month for ten years.” His mother laughed and said she would not live that long; that “They claim I ain’t going to live a month.” In February, 1957 Isabel served Frank with a notice to vacate the home place. This was the first time Frank knew Isabel claimed to own the property. Between April 1, 1956 and July, 1958 Frank made attempts to visit his mother at Isabel’s house but “they wouldn’t let [him] in.” One of the other sisters, living with Isabel, was “supposed to be guarding” Estella. In August, 1958 Estella left Isabel’s house and went to visit one of her sons. In September, 1958 Estella went to live with her daughter Clara. Frank visited Estella at his brother’s home in August, 1958. tie asked Estella “if she was sure * * * that she hadn’t made a will; she said, yes, there was a will. They [ ?] had told her there was a will.” Frank said he told Estella “They’re all raising the devil about one wants the place, the other one’s got papers made out,” but to do what she wanted; that it would be “all right” if she gave the property to him (Frank), but that if she gave it to any of the other brothers or sisters “that’s all right, too.” Frank wrote a note to his mother (she was very hard of hearing) in which he said “I told you that would happen,” to which she replied “Yes, but I didn’t know it at the time.” Frank testified “ * * * she said that she wanted her place back in her name, that she’d never took it — she had willed it to Isabel to take care of her and Eugene.” Frank testified that at that time (after August, 1958) his mother did not know that Isabel "had a deed to the property.”

Another son of Estella, Leon Lorraine, testified he saw his mother at the hospital March 9, 1956; that she was “pretty bad,” under oxygen; that after his mother’s release from the hospital he and his wife went to see her at Isabel’s house; that Isabel opened the door, told them to leave and threatened to get the police after them. Daughter Clara testified to the same experience, and that Isabel called Clara at work and told her if she came to visit her mother, Isabel would have her arrested. Clara testified that about July, 1956, after she had learned from Frank’s lawyer that Isabel had a deed to the property, Clara talked to Isabel on the telephone and told Isabel that she had heard Isabel “had Mom’s property”; that Isabel denied there was a deed and told Clara “it’s a will to take care of Mama as long as she lives and after, to take care of Eugene.” Estella was living at Clara’s house at the time of her death on November 11, 1959. Between September, 1958 and November, 1959 Isabel sent her mother two $35 rent checks from the home place. Clara did not find a will in her mother’s effects after her death.

Appellants mistakenly assume that defendant’s motion for judgment at the close of plaintiffs’ case “concedes every fact which the evidence tends to prove and every fair inference which may be drawn from the facts proved.” They argue that a “submissible” case in support of the petition was made. But in this equity case we do not confine ourselves to the law question whether, assuming plaintiffs’ evidence to be true, it had substantial value as tending to support the issues tendered. We “look behind such ruling and review the case on its merits without regard to the course actually taken in the court below. Troll v. Spencer, [238 Mo. 81, 141 S.W. 855] supra; Shepard v. Shepard, [353 Mo. 1057, 186 S.W.2d 472] supra; Fullerton v. Fullerton, 345 Mo. 216, 132 S.W.2d 966; 30 C.J.S. Equity, § 579.” Hoynes v. Hoynes, Mo.App., 218 S.W.2d 823, 828. This proceeding in equity is here for a decision upon the whole record.

From testimony that Estella Lorraine made oral statements that she was going to will the property to somebody who would take care of her and Eugene; that she said “there was a will”; that she said “they had told her there was a will”; that she said she was “going to will” it to Isabel “to take care of her and Eugene”; that she said she “had willed” it to Isabel; that Isabel’s lawyer was seen walking in one of the “aisles” of the hospital on March 8, 1956; that Isabel forbade some of her brothers and sisters to see their mother after taking Estella into her home; that after March 12, 1956 Isabel declared she was going to take care of her mother in her home as long as she lived; that after that date Isabel denied there was a deed and stated “Mom willed it to me to take care of her and Eugene as long as she live[s]”; and Frank’s conclusion that Estella did not know that Isabel had a deed to the property, it is argued that the only fair inference is, and we are asked to judicially declare, that Estella and Isabel made a contract for the support and maintenance of Estella for life in consideration of Estella willing the property to Isabel, and that by mistake and misrepresentation Estella signed a quitclaim deed to Isabel in the belief that she was signing a will; that Isabel breached the agreement, and that when Estella found out she had signed a deed instead of a will she promptly filed suit to cancel.

Estella wanted to make provision for her own support and maintenance for the rest of her life, and for the care of Eugene. From this record we know that Estella went to live with Isabel, who expressed the intention of giving her mother a good home the rest of her life; that subsequently Estella executed a quitclaim deed to the property to Isabel; that Isabel exercised acts of dominion over the property, and that Estella stayed with Isabel for 28 months but did not remain in Isabel’s home for the remainder of her life. There is, however, no proof of any contractual arrangement between Estella and Isabel with reference to the property (other than the deed). There is evidence of vague expressions of intention on the part of Estella to will it to Isabel or “somebody” who would take care of her and Eugene. There is evidence of inconsistent oral statements by Isabel after March 12, 1956 that Estella was going to will, and that she had willed, it to Isabel. There are statements by Isabel, obviously false when made, that the property had not been deeded to her. But there is no direct evidence that Estella signed the quitclaim deed in the belief that she was signing a will. Estella died before trial. Her testimony was not preserved by deposition. The notary who took the acknowledgment was not produced as a witness. No witness to her execution of the quitclaim deed testified. We know nothing of the actual facts and circumstances surrounding the execution of the quitclaim deed on March 12, 1956. Nor is there any clear, cogent and convincing circumstantial evidence from which we can confidently make a finding of fact that Estella signed the quitclaim deed in the mistaken belief that she was signing a will. There is nothing to indicate that on March 12, 1956 Estella was unconscious, incapable of understanding what she was doing, or unable to detect a substitution of one document for another, or that she was actually subjected to any such imposition. The hospital record of her condition that day indicates she was aware, rested quietly and had a good day. The transcript is devoid of evidence of misrepresentation. It is true there are circumstances which arouse suspicions with respect to Isabel. Her efforts to keep Frank, Clara and Leon from visiting their mother at Isabel’s home after March 12, 1956; her failure to care for her mother for the remainder of her life according to her expressed intention, after the conveyance of the property to her, and her false protestations that the property had not been deeded to her, raise unanswered questions as to Isabel’s good faith and intentions. That Estella rented the property to Frank after deeding it to Isabel is strange. Why Estella left Isabel’s home is left unexplained. But all of the suspicious evidence put together, and all of the doubts and misgivings which arise upon a reading of this record, do not prove the existence of a contract for lifetime support and maintenance in consideration of a devise of the property, the substitution of a deed for a will, misrepresentation and breach of agreement, as charged in the petition. On this transcript we cannot with certainty determine whether Estella and Isabel entered into contractual arrangements for support and maintenance for the life of Estella; whether Estella made a will; if so, whether the deed preceded or followed the will, if there was a will; whether she executed the deed under the mistaken belief that it was a will; whether Isabel forced Estella to leave her home in breach of an agreement. Some of these things are hinted at and might be supposed by stretching the imagination and indulging in speculation, but too many gaps in the proof are left unclosed. The transcript is replete with conclusions and contains much testimony which we deem unreliable. Plaintiffs have not met the requirement that the evidence to set aside a deed be clear, cogent and convincing. In its totality the evidence is confusing and it lacks the definiteness and certitude required as a basis for the exercise of the extraordinary powers of equity in the cancellation of solemn conveyances of land. We agree with the trial court that “The plaintiffs have utterly failed to meet their burden in presenting evidence to prove the agreement pleaded relative to the defendant keeping the plaintiff for the rest of her natural life, that the plaintiff signed a quit claim deed believing that she was signing a will, and that the defendant was the cause of plaintiff’s subsequently leaving her home in July of 1958.”

The judgment is affirmed.

COIL and HOLMAN, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: BROADDUS, Judge.

text:
    Pauline F. DODGE, Plaintiff-Respondent, v. SAFE-GUARD SALES, INC., Defendant-Appellant.
    No. 23502.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.
    White & Laurent, Kansas City, for appellant.
    Terry & Welton, Kansas City, for respondent.
   BROADDUS, Judge.

On April 27, 1960, plaintiff filed a petition in the Circuit Court of Jackson County, at Kansas City, in which she alleged that 45th Street and Belleview Avenue are public thoroughfares within the City of Kansas City, Missouri; that on June 17, 1959, plaintiff was riding as a passenger in a 1956 Ford Coach, being driven in a southerly direction on Belleview Avenue when it was struck by a 1952 Plymouth Sedan being operated in a westerly direction on 45th Street by defendant’s agent and employee. The petition set forth several grounds of negligence on defendant’s part and prayed for damages in the sum of $9,500 for personal injuries, medical expenses, and loss of wages.

Personal service was had upon defendant on or about April 27, 1960. Defendant delivered the summons and copy of the petition to its regular attorney. The latter filed no responsive pleading in the case according to the records of the Circuit Court Clerk’s office.

On March 31, 1961, the case came on regularly for trial. The judgment of that date recites that plaintiff appeared in person and by attorney “and defendant although lawfully summoned comes not but makes default;” that a jury was waived and the cause presented to the court upon the pleadings and evidence, and after hearing the evidence the court found the issues in favor of plaintiff and assessed her damages in the sum of $4,000.

On April 3, 1961, defendant procured other counsel and the latter filed a motion to set aside the judgment of March 31, 1961. Said motion admits that summons and a copy of the petition were served upon defendant on or about April 27, 1960, and then alleges that defendant’s then “counsel filed an answer setting out the defendant’s defenses to plaintiff’s action; that said answer so filed, is not contained within the court’s file jacket and presumably a copy was not received by counsel for the plaintiff.” The motion also alleges that defendant has a good and meritorious defense to plaintiff’s petition “all as set forth in its answer, which is attached hereto and for which defendant requests leave of Court to file, which is the same Answer as originally filed” by defendant’s former attorney.

The motion was taken up by the Court on June 9, 1961, at which time the defendant’s former attorney testified that he had a “distinct recollection” of filing an answer on behalf of defendant in the Clerk’s office. At the conclusion of the evidence the court took the motion under advisement and on June 21, 1961, overruled the same. Defendant appealed.

The law governing this case is well settled. It is clearly expressed in the case of J. G. Jackson Associates v. Mosley (Mo.App.), 308 S.W.2d 774, 778 as follows:

“To warrant the vacation of a default judgment a defendant must show that he has a good and sufficient reason or excuse for his default, and that he has a good and meritorious defense. The refusal of a motion to vacate a default judgment is a matter within the sound judicial discretion of the trial court, a discretion which will not justify appellate interference unless both an excuse for default and a meritorious defense appear so clearly as to manifest arbitrary action upon the part of the trial court in refusing to vacate the judgment. Whitledge v. Anderson Air Activities, Mo.Sup., 276 S.W.2d 114; Savings Finance Corp. v. Blair, Mo.App., 280 S.W.2d 675, and cases cited.” (Italics ours.)

Under the facts, we cannot hold that the trial judge abused his discretion in this case. His finding that no answer was in fact filed is supported by the records in the Circuit Clerk’s office. Certain it is that defendant’s attorney did not serve a copy of the purported answer upon plaintiff’s attorneys as he was required to do under the provisions of Sect. 505.100 V.A.M.S. and apparently he never examined the files in the Clerk’s office during the time the case was pending—a period of almost one year. Had he done so, he would have known that defendant was in default. His neglect was the neglect of defendant. Welch v. Mastin, 98 Mo.App. 273, 277, 71 S.W. 1090, 1091.

The judgment is affirmed.

All concur.


text:
    Theodore M. UTCHEN, Plaintiff-Respondent, v. The AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA, Defendant-Appellant.
    No. 23458.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.

      William R. Fish, Knipmeyer, McCann & Millett, Kansas City, for appellant.
    Theodore M. Utchen, pro se.
   BROADDUS, Judge.

This case involves the construction of an insurance policy. On March 18, 1959, Theodore Utchen, the plaintiff, at Ann Arbor, Michigan, purchased an insurance policy from the defendant insurance company, known as Trip-Master Policy No. ABC 587596, insuring personal effects and baggage. On April 2, 1959, while the policy was in full force, the plaintiff’s locked automobile, while parked on a Des Moines, Iowa, public street, was broken into and the contents thereof looted. Included in the items stolen were a number of articles of women’s clothing and many pieces of sterling silverware.

On April 6, 1959, plaintiff made written claim of the defendant in the amount of $701.75, of which $131.00 was for loss of women’s clothing, and the remainder was for the loss of a silverware chest and sterling silver. The defendant by letter informed plaintiff that loss of silverware was not covered by his insurance policy and offered payment in the amount of $131.00 in full settlement of plaintiff’s claim, said amount representing the value of the lost clothing. The plaintiff by letter dated May 3, 1959, declined to accept the sum offered in full satisfaction of his claim and asked defendant the basis for its excluding the silverware from coverage. The defendant replied by letter dated May 8, 1959, to the effect that the policy excluded “household furniture and the silverware would definitely fall under this category.” In the same letter plaintiff was advised that since he was demanding payment for the full amount of his loss the offer of $131.00 in settlement was being withdrawn. The plaintiff by letter dated May 21, 1959, again made demand for payment of $701.75, and upon not hearing further from defendant, filed this suit for $701.75 plus penalties for vexatious delay and attorney’s fees.

After defendant’s answer was filed plaintiff filed a motion for summary judgment as to the question of liability, with affidavits and exhibits in support thereof, and defendant moved the court for summary judgment on the same issue. The trial court granted plaintiff’s motion and overruled defendant’s motion and, after hearing the evidence as to values, with jury waived, found for plaintiff in the amount of $701.75 and costs, but denying recovery for vexatious delay and attorney’s fees. Defendant appealed.

The portion of the policy out of which this action arises is Part XI. It reads as follows:

“This Policy insures Personal Effects (EXCLUDING ANIMALS, AUTOMOBILES, AUTOMOBILE ROBES AND AUTOMOBILE EQUIPMENT, MOTORCYCLES, BOATS, MOTORS, OR OTHER CONVEYANCES OR THEIR APPURTENANCES, excepting BICYCLES while checked as baggage with a common carrier, HOUSEHOLD FURNITURE, ARTIFICIAL TEETH AND LIMBS, MONEY, SECURITIES, TICKETS AND DOCU- ■, MENTS) owned by and for the personal use, adornment or amusement of the Insured or any member of the Insured’s family traveling with Insured, while in transit or while in any hotel or other building en route during any journey anywhere in the World on water, land or in the air.”

Defendant’s first contention is that while the insurance contract provided coverage for loss of “Personal Effects” that term does not include “silverware” within its meaning.

Counsel for both plaintiff and defendant in their exhaustive briefs rely on cases where the term “personal effects” was used m wills and the courts in those cases were endeavoring to ascertain the intent of the testator in a particular will. Those precedents actually are of little help in the case at bar where we are construing a contract of insurance, and where we are concerned only with the meaning of “personal effects” as used in this contract. As stated in one of the cited cases:

“The term ‘personal effects■* has, no settled technical meaning. Its interpretation varies with the setting in which it appears. It is sometimes construed as embracing only tangible property having an intimate relation to the person (citing cases); and is sometimes given a broader meaning (citing cases).” In re Maurer’s Estate, 192 Misc. 627, 84 N.Y.S.2d 153.

It is the settled law of this state that a contract of insurance will be construed strictly against the insurer and liberally in favor of the insured; that a provision in the contract reasonably susceptible of two meanings, one of a broader and the other of a narrower scope, will be given that interpretation which is most favorable to the insured. Construing the term here involved in the light of these holdings compels us to rule the contention against defendant.

Defendant also contends that even if the loss of silverware should be construed as being a loss of personal effects, there is still no insurance coverage for such a loss under the policy for the reason that “Household Furniture” is specifically listed as an excluded item from insurance coverage in Rart XI of the policy.

Plaintiff has cited a number of cases holding that a bequest of “furniture” did not include silverware, one of which is the well considered case of Ruffin v. Ruffin, 112 N.C. 102, 16 S.E. 1021. We quote the following from that case:

“ * * * The word should be construed according to its usual meaning * * *. That which fits a house for use is its furniture ***./» its ordinary acceptation the word has not been understood to include silverware, china, glassware, books, or portraits attached to the wall, that are not generally essential to the comfort and convenience of housekeepers ⅜ * * in most of the cases cited to sustain the plaintiff’s (legatee’s) claim that all of these articles are embraced, it appears from examination that the bequest was of ‘household furniture, goods and chattels’ in a particular house, or ‘household goods and furniture * * * We think it manifest * * * that neither books, portraits, nor silverware are embraced by the simple word ‘furniture/ as used in common parlance.”

We are in accord with the view expressed in the case of Kinney v. Thomlinson, 2 N.J.Super. 512, 64 A.2d 641, “that the word ‘furniture’ * * * is confined to articles such as are ordinarily purchased at furniture stores.” Certainly one intending to buy sterling silverware would not go to a furniture store.

In any event, this attempt by defendant to avoid liability is barred by the familiar rule that provisions in insurance policies designed to cut down, restrict, or limit, the insurance already granted, or introducing exceptions or exemptions, must be strictly construed against the insurer.

Plaintiff contends that he is entitled to 10 percent statutory damages and an attorney’s fee for defendant’s vexatious refusal to pay the loss. This contention is without merit for the primary reason that the trial court ruled against plaintiff on this point and he did not appeal. Thus he is in no position to complain. Fraker v. Commonwealth Casualty Co., 278 S.W. 1053 (Mo.App.)

Plaintiff also contends that under Rule 83.13 Missouri Rules of Civil Procedure, V.A.M.R., he is entitled to damages not exceeding 10 percent of the whole judgment herein on account of defendant’s alleged vexatious appeal. This rule does not prescribe the conditions under which such damages may be allowed and the award must rest in the exercise of sound discretion. The appellate courts are reluctant to impose a penalty for vexatious appeal and do so only when it appears that the appeal is so devoid of merit as to force the con-elusion that it was not taken in good faith. Wigger v. Consumers Cooperative Ass’n, 301 S.W.2d 56 (Mo.App.). The penalty is never assessed where there is an unsettled question of law. Whited v. Guarantee Trust Life Ins. Co., 237 S.W.2d 915 (Mo.App.). Neither party has called our attention to a single decision involving an insurance policy where it was held that silverware was included within the term “Personal Effects”. The question presented on this appeal is apparently one of first impression. This, of itself, calls for the denial of plaintiff’s request.

The judgment is affirmed.

All concur.

HUNTER, P. J., and CROSS, J., concur.


author: MAUGHMER, Commissioner.

text:
    Merrley Marie LOVE, John Henry Love, Jr., and Patty Ann Love, Appellants, v. Gerald E. LAND d/b/a Land Roofing Company and Ocean Accident and Guarantee Corporation, Respondents.
    No. 23437.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.

      Hensley, Rahm & B ratón, Holden, for appellants.
    Jack B. Robertson, Rogers, Field & Gentry, Kansas City, for respondents.
   MAUGHMER, Commissioner.

Appellants, the widow and minor children of John Henry Love, deceased, appeal from the circuit court judgment under which they were denied recovery of workmen’s compensation death benefits.

It was stipulated or admitted that on March 16, 1959, John Henry Love was an employee of defendant Gerald E. Land, d/b/a Land Roofing Company; that this company at the time was operating under the provisions of the Missouri Workmen’s Compensation Law, V.A.M.S. § 287.010 et seq.; that defendant Ocean Accident and Guarantee Corporation was insurer; that the employer had due notice of Mr. Love’s death on March 16, 1959, and that a claim for compensation benefits was timely filed. While the parties did not agree on the amount of the average weekly wage, the only issue involved as to liability and on this appeal is whether Love’s death was the result of an accident arising out of and in the course of his employment.

The award of the referee was for claimants. On appeal the commission unanimously reversed the referee, found that deceased “did not sustain an accident on or about March 16, 1959, arising out of and in the course of his employment”, and entered a final award denying compensation. On appeal the circuit court affirmed the commission.

The duty and scope of review by this court and by the circuit court in a workmen’s compensation case were well and fully stated in Long v. Mississippi Lime Co. of Mo. et al., Mo.App., 257 S.W.2d 167, 170:

“An appellate court, in reviewing the evidence upon the basis of which the industrial commission made its award, must view the evidence in the light most favorable to the successful party below. Harper v. Home Imp. Co., Mo.Sup., 235 S.W.2d 558. Neither the circuit court nor the appellate court may substitute its judgment on the evidence for that of the commission. Both courts are authorized and bound to decide whether the commission reasonably could have made its findings and reached its result upon consideration of all of the evidence before it, i. e. whether the award made by the commission is supported by competent and substantial evidence upon the whole record, Constitution of 1945, Art. V, § 22, V.A.M.S. (and cases cited)”.

The burden was on claimants to show not only that Mr. Love suffered an accidental injury arising out of and in the course of his employment, but that his death resulted from such injury. Kerby v. Missouri State Highway Commission et al., Mo.App., 238 S.W.2d 464, 469.

John Henry Love, aged 33 years, from 1953 until his death, was an employee of defendant company, and was generally engaged in working on roofs, especially shingling and “hot patching”. On March 16, 1959, Mr. Love and a fellow employee Donald G. Francey were doing a “guttering job” on a farm house. Their work included repairing the guttering. They used a hammer, a chisel and got up to the gutters by means of an extension ladder. On this particular day these men worked through the morning, then ate their noon meal at a restaurant and went back to the job at about 1:00 or 1:30 p. m. At this time, according to Mr. Francey, it was necessary to “cut a hole in the gutter, so the water would drain out and let it dry a little bit”. Mr. Francey said the house eaves extended out from the walls “a good two and one-half feet”, so that a workman on the ladder and cutting a hole in the gutter would not be working directly overhead but would have to “stand on the ladder, bracing with his legs” and turn partly sideways and work over his head and to some extent back of his head. This work procedure had been followed on the other side of the house that morning, with.Mr. Love up on the ladder. Mr. Francey stated that this was not their usual kind of work.

When these men started to resume work on this particular afternoon, Mr. Love took some tin cutters and went up the ladder. Mr. Francey was holding the bottom of the ladder and said: “I thought he was just going on as usual and cut the hole; I thought maybe he was just resting or something * * *. He was kind of slumped over the ladder with his arm around the rung. There wasn’t any movement”. Mr. Francey said further that Mr. Love never got started working after his trip up the ladder with the cutters and performed no work at all at that time.

Mr. Francey got Mr. Love down and laid him on the ground. Dr. Jack Taylor, M. D., Kansas City, was called. He examined the patient at the scene. He could not obtain blood pressure and the heart sounds were not audible. He administered solucortef, a medication. A thoracotomy was performed, but no bleeding ensued from this chest incision. Cardiac massage and mouth to mouth insufflation were used. An ambulance was called but the patient died on the way to the hospital. Dr. Taylor prepared and signed the death certificate. Therein he stated:

“Death was caused by:
“Immediate cause (a) cardiac arrest due to (b) cardiac asystole due to (c) grand mal seizure”.

Dr. Taylor testified that in his opinion Mr. Love suffered a grand mal seizure al the scene. He said such seizures are not commonly precipitated by any known event, but occur spontaneously. He was unable to give any cause for this particular seizure but said abnormal strain might reasonably be a precipitating factor.

Dr. C. G. Leitch, M. D., Blue Springs, Missouri, testified as an expert on behalf of appellants. Responsive to a hypothetical question he expressed an opinion that the cause of death was “circulatory collapse, induced by the influence of the carotid sinus”. He said this collapse occurred while the man was on the ladder performing his work and could have been induced by having his head turned back which resulted in pressure on these carotid sinuses. The doctor said: “It is both fantastic and highly speculative that this man had a grand mal seizure”.

The defendant Gerald E. Land testified that Mr. Love worked for him for seven .years or as long as he had operated the business, and that he had also worked for the preceding owner. He said that upon numerous occasions Mr. Love had made similar repairs on gutters using the same tools, including an extension ladder.

All of the evidence is that deceased did no actual work except climbing the ladder after his return from lunch. It is difficult, therefore, to conclude that his attack, whatever it was, was induced by some immediate “unusual and abnormal strain” for the simple reason that for at least an hour all he had done was eat his lunch, climb the ladder and maybe tilt his head back. Furthermore, we doubt that the evidence here requires a finding that this particular gutter repair work necessitated any unusual or abnormal strain. Such work, according to defendant Land, was a part of their regular activities and Mr. Francey had seen the deceased do such work on other occasions, the last time being that very morning. Mr. Love had worked for Mr. Land for seven years and in the business prior to that.

The two medical doctors who testified were not in accord. However, Dr. Taylor, the only physician who actually saw the deceased and who signed the death certificate, said death resulted from heart failure, resultant from a grand mal epileptic seizure. Moreover, we find no evidence at all that an accident, as the word is commonly understood, occurred. Webster’s International Dictionary, Second Edition, defines “accident” as “An event that takes place without one’s foresight or expectation; an undesigned, sudden or unexpected event”. There is no showing of an “accident” resultant from the actual work itself.

In support of their position that decedent suffered an “accident” because of “unusual working conditions” and because of the “unusual and abnormal nature of the work” appellants invite our attention to various cases in some of which the occurrences were ruled to be accidents, and claim the facts here are comparable. We shall consider those cases.

In Williams v. Anderson Air Activities, Mo.App., 319 S.W.2d 61, claimant was lifting a heavy drain board and strained his back, resulting in a possible herniated in-tervertebral disc. The court held the abnormal strain was the event, and the back injury, the result. While an abnormal strain might be classified as an accident even though not preceded by a slip or fall, we cannot classify climbing a ladder after an hour off for lunch and tilting the head back as an abnormal strain and an accident. As to Smith v. Cascade Laundry Company et al., Mo.App., 335 S.W.2d 501, we there upheld a finding that a sour laundry solution causing claimant’s hand to become inflamed was not an “accident” under the Workmen’s Compensation Law.

The opinion in Mergel v. New Jersey Conveyors Corp., 14 N.J. 609, 103 A.2d 594, by the Supreme Court of New Jersey, more nearly supports appellants. In that case the employee was a millwright and temporarily assigned by respondent employer to the work of installing a conveyor system. Employee was assigned to “bolting up overhead”. The court said:

“While it is true that the work being done was in the general field of that undertaken by millwrights, the petitioner’s proof disclosed special conditions here which made the work extremely difficult to perform, the cramped working space, the lack of a scaffold and the heat. The temperature was between 80 and 85 degrees, there was little ventilation and the work was being performed close to the ceiling. It is a fact of practical common knowledge that ceiling temperature is higher than floor temperature.
* ⅝ ⅜ ⅜ # ⅜
“Events which happened beyond his mere employment, the restricted area of work, the lack of a scaffold, the necessity of reaching out and up to drill the holes and attach the conveyors, and the heat are factors which persuade us that the decedent was caused to put forth a greater expenditure of effort which put upon him a greater strain than that to which he was accustomed in his ordinary activities as a millwright”.

We believe the facts in this New Jersey case are far more favorable to claimant from (1) the standpoint of lengthy, unusual and abnormal strain from that normally required and (2) from the standpoint that such strain caused the death because the millwright got too hot, felt “all in”, was green in color and was finally sent home, all prior to his death.

We are unable to find that the commission’s finding that decedent “did not sustain an accident on or about March 16, 1959, arising out of and in the course of his employment” is not supported by substantial evidence. The medical testimony of Dr. Taylor supports the commission’s ruling. The other evidence, including the fact that decedent had not actually resumed work after lunch, makes it appear reasonable for a fact-finding body to conclude that the circulatory or respiratory attack or failure, grand mal, or something else which he suffered, was caused by conditions separate and apart from his work. Certainly it cannot be said that such conclusion is not supported by substantial evidence or that the overwhelming weight of the evidence is the other way.

The judgment of the circuit court affirming the award of the commission is by this court affirmed.

SPERRY, C., not sitting.

PER CURIAM.

The foregoing opinion of MAUGH-MER, C., is adopted as the opinion of the Court.

All concur.