author: LAURANCE M. HYDE, Special Commissioner.

text:
    Virdilla MOE, Plaintiff-Appellant, v. BLUE SPRINGS TRUCK LINES, INC., a Corporation, and Herbert T. Casteel, Defendants-Respondents.
    No. 52961.
    Supremo Court of Missouri, Division No. 1.
    March 11, 1968.
    Motion for Rehearing or for Transfer to ' Court En Banc Denied April 8, 1968.

      John C. Thurlo, Richard K. Andrews, Kansas City, for appellant; Swanson, Midgley, Jones, Eager & Gangwere, Kansas City, of counsel.
    E. E. Thompson, Thos. J. Conway, Jr., Kansas City, for defendants-respondents; Popham, Thompson, Popham, - Trusty & Conway, Kansas City, of counsel.
   LAURANCE M. HYDE, Special Commissioner.

Action for $25,000.00 damages for personal injuries sustained when defendant’s truck struck the rear of plaintiff’s car. Verdict and judgment for defendants and plaintiff has appealed.

The only issue here is whether it was prejudicial error for the court to refuse to admit in rebuttal the record of the defendant truck driver’s conviction in the magistrate court of Jackson County on a plea of guilty to a charge of unlawfully operating a motor vehicle in a careless and imprudent manner.

Plaintiff was driving a Mercury automobile. The truck driver (hereinafter called defendant) was driving a two-ton Chevrolet truck for his employer, defendant Blue Springs Truck Lines, Inc. Both were driving north on State Highway 7, a blacktop road about 24 feet wide, approaching its intersection with U. S. Highway 40, a four-lane divided east and west road. Highway 7 sloped gradually from south to north from the crest of a hill about a quarter of a mile to the south. About 10:00 A.M. on July 12, 1963, plaintiff approached the intersection behind another car. She had her niece, 9 years old, and two stepdaughters, 7 and 11, in the car with her. Plaintiff said the traffic light at the intersection turned yellow and car ahead of her stopped and she stopped several feet behind it. Plaintiff said while the traffic light was red and while her car remained standing her car was struck violently from the rear by defendant’s truck. Defendant said, seeing the red light he kept pressure on his brakes approaching the intersection, but when he got within 125 to 150 feet of plaintiff’s car the light turned green; and that plaintiff’s car then moved forward for a distance about its length and suddenly stopped without warning. At that time defendant said he was about 50 feet behind plaintiff’s car and set his brakes but the truck slid into the car, the front bumper of truck struck its left rear fender, going about five miles per hour. He said plaintiff’s car was knocked forward six or eight feet. It was raining and the pavement was wet. Plaintiff in her rebuttal evidence showed by the testimony of a State Highway Patrolman that at this time defendant said to him: “The pavement was wet, and I just couldn’t stop.”

At the close of defendant’s evidence, plaintiff offered as a part of its rebuttal evidence the record of defendant’s conviction in the magistrate court for his conduct on the occasion involved. Admission was refused on objection that it was improper rebuttal and an improper attempt to impeach his credibility. The court’s view was it would only be proper rebuttal if he had been asked “on cross examination whether or not he had been convicted of a misdemeanor and he had denied it.” However, Sec. 491.050, RSMo, V.A.M.S., provides as to a witness: “[C]onviction may be proved to affect his credibility, either by the record or by his own cross-examination.” Wigmore on Evidence, Third Edition, Vol. VI, p. 517, states: “(W)hile the trial Court’s determination of what is properly rebutting evidence should be respected, yet, if its nature as such is clear, the proponent does not need the trial Court’s express consent to admit it as involving a departure from the customary rule. This will always be the case for evidence offered to impeach the opponent’s witnesses by way of moral character, bias, self-contradiction, or the like. This doctrine is justly applied" also where the proponent has found it necessary or desirable, by reason of the opponent’s cross-examination, partly to anticipate his case in rebuttal by going into it during his case in chief, — for example, on a redirect examination; here he may take up the same subject again during the rebuttal.” As to the necessity of inquiry in cross-examination, we pointed out the distinction between showing statements and acts or conduct in Barraclough v. Union Pacific R. Co., 331 Mo. 157, 52 S.W.2d 998, 1001, 1002, as follows: “It seems reasonable, however, as stated by Wigmore on Evidence, Vol. 2, p. 343, § 953, (now Vol. 3, p. 512, 3rd Edition) that the rule requiring preliminary inquiry of the witness before offering evidence to show his bias ‘applies only to utterances, not to conduct or circumstances, such as an assault or an employment.’ Other illustrations of facts or circumstances which it is proper to show on the issue of bias without a preliminary inquiry of the witness are: Relationship to a party by blood or marriage, pendency of litigation between the witness and the party against whom he testifies, and a quarrel or trouble between them. * * * The Missouri decisions do not seem to be in conflict with this rule. This court has recently said that ‘the interest or bias of witnesses with respect to the issues on trial is never an irrelevant or collateral matter.’ ” See also annotation, 87 A.L.R. 407, 470; State v. Pigques, Mo.Sup., 310 S.W.2d 942, 950.

Our view is that impeachment of a defendant’s witness by showing inconsistent circumstances, acts or conduct is always proper rebuttal, regardless of inquiry by cross-examination. As to methods to be used, we said in Hoover v. Denton, Mo.Sup., 335 S.W.2d 46, 48: “If the witness evades or equivocates (on cross-examination, citing cases) the record should be received. If he denies the conviction, the record should be received. And, in the first instance, the party opposing the witness may elect which route he will take, —cross-examination or proof by the record.” The statute says so and it means what it says. See State v. Spivey, 191 Mo. 87, 90 S.W. 81, 88; State v. Brooks, 202 Mo. 106, 100 S.W. 416, 419. Our conclusion is that the rule as to admission of circumstances, acts or conduct should apply to a conviction, especially since our statute gives the option of either proof by the record or by cross-examination, so proof by the record is all that is required. Plaintiff’s counsel clearly stated the purpose of the record he sought to introduce was to rebut defendant’s credibility. Our conclusion is that it was error to refuse it and we hold this error was prejudicial because the determining fact issues depended on credibility, with plaintiff saying the traffic light was red when her car was struck and defendant saying it was green; and with plaintiff saying her car remained standing still waiting for the red light to change until it was struck by defendant’s truck; and defendant saying plaintiff started forward on a change to a green light and then made a sudden stop. See Merk v. St. Louis Public Service Co., Mo.Sup., 299 S.W.2d 446, 451.

Defendant says proof by the record in rebuttal prevents any explanation, citing Howard v. Riley, Mo.Sup., 409 S.W.2d 154; Nichols v. Blake, Mo.Sup., 418 S.W. 2d 188; Johnson v. Tucker, Ky., 383 S.W. 2d 325; Kelly v. King, Miss, 196 So.2d 525; Annotation, 18 A.L.R.2d 1311; to show that explanation of a conviction is permitted in a civil case. These cases consider the effect of a plea of guilty as an admission against interest and do not rule on the effect of Sec. 491.050. There is such a thing as surrebuttal, 53 Am.Jur. 108, Trial, Sec. 122; 88 C.J.S. Trial § 103, page 217, and the trial court has considerable discretion concerning it. See 5A C.J.S. Appeal and Error § 1605, page 102. Since a plea of guilty as to the occurrence involved may be considered also as an admission it would be proper to permit explanation.

The judgment is reversed and cause remanded.

PER CURIAM.

The foregoing opinion by LAURANCE M. HYDE, Special Commissioner, is adopted as the opinion of the Court.

All concur.


source: Caselaw Access Project

author: HENLEY, Presiding Judge. STORCKMAN, Judge.

license: Public Domain

text:
    Leroy RUEDIGER, Appellant, v. AMERICAN BUS LINES, INC., Respondent.
    No. 52755.
    Supreme Court of Missouri, En Bane.

      Nov. 13, 1967.
    Rehearing Denied April 8, 1968.

      Gray & Sommers, Charles E. Gray, St. Louis, for appellant.
    Strubinger, Wion and Burke, J. Lloyd Wion, St. Louis, for respondent.
   HENLEY, Presiding Judge.

Action for damages for personal injuries arising out of a collision involving a tractor-trailer driven by plaintiff and a Trailways bus owned by defendant, American Bus Lines, Inc., and driven by defendant Vincil Lee Wood. Verdict and judgment for $128,000 were for plaintiff against defendant American Bus, and in favor of defendant Wood, operator of the bus. The trial court sustained American Bus’ motion for judgment in accordance with its motion for directed verdict, set aside the judgment and entered judgment for that defendant and, in the alternative, sustained said defendant’s motion for new trial. Plaintiff appeals from this judgment and order.

Both motor vehicles were traveling west on Interstate-70, a four-lane highway with two twelve-foot lanes for westbound traffic separated by a median strip from two lanes for eastbound traffic. The collision occurred February 10, 1965, at about 2:00 A. M., approximately one mile west of O’Fal-lon in St. Charles county when, according to plaintiff, the bus suddenly slowed or stopped, without warning, in its right hand lane as the tractor-trailer was attempting to pass. The right front of the tractor struck the left rear of the bus, causing the tractor to catch fire. According to plaintiff the bus was caused to slow or stop by application of its parking brake through the loss of pressure from an air reservoir tank controlling the parking brake system; he further asserts that a warning device on. the bus’ dashboard and stop signal lights on the rear of the bus designed to activate automatically on application of the parking brake failed to function. Plaintiff submitted on the theory that defendant was negligent in failing to maintain the parking brake system in operative condition. As a result of the collision plaintiff was rendered unconscious; when he came to, he was on fire in his tractor.

The court set aside plaintiff’s judgment and entered judgment for defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law; it sustained defendant’s alternative motion for new trial on the ground it had erred in giving instruction No. 3, plaintiff’s verdict-directing instruction, “ * * * because there was no evidence to support the giving of such instruction.”

At the time of the collision visibility was good; the pavement was dry, but the shoulders were muddy. Plaintiff testified that he was en route to his home at Her-mann, Missouri, on a return trip from the Stockyards at East St. Louis, Illinois, where he had delivered a load of cattle. Somewhere near St. Peters, Missouri, he started traveling behind this westbound Trajlways bus in the outside or north lane of the twenty-four foot pavement. The two vehicles traveled in this position at a speed of 50-55 miles per hour for about ten miles, plaintiff maintaining a distance of 300 to 400 feet between the bus and his tractor-trailer. Deciding to pass the bus, he increased his speed to close the distance before turning out to his left into the passing lane. When he reached a point approximately 50 feet from the rear of the bus, as he prepared to “* * * swing around, to go around it * * he realized for the first time that the bus was stopped or stopping; he “thought” it was stopped; he “swerved out” to the left and applied his brakes, his drivewheels (according to the testimony of a state highway patrolman) laying down approximately 60 feet of skid marks beginning in the north lane with the left skid mark crossing the center line into the south lane before impact.

Plaintiff further testified that while traveling behind the bus he had his lights on dim, the light projecting forward approximately 200 feet; that there were no vehicles between him and the bus, and the passing lane ahead was clear and open; shown a picture of the rear of the bus, he counted fifteen taillights, but said that he did not know whether all were on as he followed the bus; that he could tell the difference between taillights and “stop” lights; that he saw no stoplights “ * * * come on on the bus * * * ” before impact, and the bus gave no signal that it was stopping; that his tractor-trailer, including its brakes and tires, was in good condition; that under existing conditions the tractor-trailer traveling 50-55 mph could be stopped in about 100 feet; that as he “ * * * came up behind the bus * * * ” he did not blow his horn, flash his lights, activate his left turn signal, or give any signal that he intended to pass, the vehicles behind him being far enough back they would not be involved in his passing maneuver.

Plaintiff read into evidence certain Interstate Commerce Commission regulations (Title 49-Transportation, Code of Federal Regulations) applicable to installation, operation and maintenance of the braking system on the bus. Those regulations, insofar as pertinent here, are substantially as follows: Section 193.41 provides that every singly driven motor vehicle shall at all times be equipped with parking brakes. Section 193.45 requires that brake tubing and hoses shall be designed and constructed of proper material and so installed as to insure proper continued functioning. Section 193.46 requires that all connections for air and vacuum braking systems shall be adequate in material and construction to insure proper continued functioning; be designed, constructed and installed so as to insure, when properly connected, an attachment free of leaks, etc. Section 193.48 requires that all brakes shall be operative at all times, except in certain instances not applicable here. Section 193.50 requires that every bus equipped as required with air or vacuum reservoirs shall have such reservoirs so safeguarded by a check valve or equivalent device that in the event of a failure or leakage in its connection to the source of compressed air or vacuum, the air or vacuum supply in the reservoir shall not be depleted by the leak or failure. Section 193.51 requires that every bus using compressed air for the operation of its brakes be equipped with a warning signal audible or visible to the driver giving continuous warning at all pressures below a fixed pressure not less than one-half the compressor governor or cut-out pressure; in addition, this section requires that the bus be equipped with a pressure gauge indicating to the driver the pressure available for braking, and requires that the warning device and gauge be maintained in operative condition.

This bus was equipped with two braking systems, both controlled by compressed air from the same reservoir: one, the regular service brake system; and the other, a parking brake system, sometimes referred to as the emergency or safety brake. It was also equipped with (1) a warning device, and a gauge which related the air pressure in the brake system, both on the dashboard; and (2) stoplights on the rear connected with the parking brake system so that when the parking brake was fully applied these lights would be turned on automatically, if properly functioning. The parking brake is applied by the force of an expanding or relaxing spring on brake shoes which, in turn, apply pressure on the brake drums of one axle. This spring is, normally, when the vehicle is in motion, held in a compressed position by the force of air from the air reservoir; that is, it works on a lack of air pressure, whereas the regular service brake works only if pressure is available. In other words, the two systems are so related that when the air pressure goes down to the point where there is not sufficient pressure for application of the service brake, the parking or safety brake is automatically applied, so that the vehicle is never without brakes. The intended or regular application and release of the parking brake is controlled by a valve or switch on the dashboard.' The normal operating pressure in the air system is 90 to 115 pounds; when the air pressure drops to 50-60 pounds the parking brake shoe begins to make contact with, but exerts no pressure on, the drum and the warning device on the dashboard is activated, if functioning properly; when the pressure drops to 35-40 pounds there is a full application of the parking brake and the stoplights are then turned on automatically, if functioning properly.

Harold L. Dobrikin, vice-president in charge of engineering of the company which manufactured the parking brake used on the bus, testified, in part, that the force applied on the parking brake “ * * * just prior to its full application is hardly enough to affect the movement of the vehicle, especially if it is in gear and the engine is running * * *; ” that it is hardly perceptible; that the bus operator would first notice the movement being affected when the parking brake is fully applied, “When it suddenly hits the trigger point and then get[s] the full force of the spring.” He further testified that the minimum distance in which the bus could be stopped by application of the parking brake while traveling at 55 mph was 375 feet and that the automatic stoplights would be on for that minimum distance; that the gradual application of the parking brake would make the stopping distance “Very slightly greater * * because until this brake is fully applied it “ * * * would do very little toward decelerating the vehicle *

Joseph B. Kelems, a member of the state highway patrol, testified, in part, that Vin-cil Wood, operator of the bus, told him: “These buses are equipped with a parking brake. It cut on and the truck didn’t see me slowing in time and it hit the rear end.”

Vincil Wood testified that he left the St. Louis Terminal driving this bus at approximately 1:00 A.M., February 10; that before leaving he checked the lights and brakes and all were functioning properly; that his first stop was St. Charles; that he used the brakes several times between St. Louis and St. Charles and they functioned properly; that plaintiff’s tractor-trailer followed him from near St. Charles for approximately ten miles; that shortly before the collision “There was an emergency parking brake failure come on on the bus * * causing the bus to stop; that he “felt” a “drag” on his brakes and the bus began to slow; that as the bus was “ * * * coming to a halt * * while still moving but within 30-40 feet of where it came to a complete stop, he looked at the gauge for the first time and the air pressure was down; that the bus traveled approximately 650 feet from the time he “felt a drag” until it stopped; that the bus was stopped on the highway a few seconds before the collision; that the warning devices (a red light and a buzzer) on the dashboard did not come on when the air pressure dropped and the parking brakes “kicked on,” although they are designed to activate when the pressure drops to warn of trouble in time for the driver to move the bus off the traveled portion of the highway; that his brake lights also “should have come on;” that when he “felt” the parking brakes “kick in” he glanced in his mirror and saw the truck about a quarter to a half mile behind him, but he did not turn on any lights although the rules required that he turn on both right and left turn signals; when the bus came to a complete stop he reached forward and pushed a button to release the parking brake, put his bus in first gear and tried to get the brake loose and the bus moving, but the collision occurred before he could do so; that he looked in his mirror again when the bus came to a complete stop on the highway and by that time “ * * * his [the tractor’s] light went in behind my bus, I couldn’t see him in my rear view mirror again (indicating) ; so he tried to swerve * * *; ” that the tractor-trailer was then about 50 feet behind him.

Defendant asserts in Point II of its brief that not only was the trial court correct in holding that there was no evidence to support the giving of plaintiff’s verdict-directing instruction, but that the court should have further held that plaintiff wholly failed to make a submissible case. Defendant contends that plaintiff did not make a submissible case, because he did not show: (1) that defendant was negligent in failing “ * * * to keep the parking brake system * * * in operative condition * * *; ” and, (2) that such alleged negligence was the proximate cause of the collision. Defendant further contends that to make a submissible case of negligence plaintiff was required to prove not only the existence of a defective condition in the parking brake system, but, also, that defendant had knowledge, actual or constructive, of the defective condition.

Defendant argues that there was no proof of a defective condition in the parking brake system. It argues that the bus was equipped with parking brakes, and warning signals on the dashboard, as required by Interstate Commerce Commission regulations ; that those brakes did operate as they were designed and intended to function by ICC regulations. It is true that this brake was designed to function when the air pressure drops, as it did, so that the vehicle would not be left helpless, without brakes, as a moving, menacing juggernaut unsafe for its passengers and other traffic on the highway. But, that is not to say that the air pressure controlling the brake may be permitted to drop to the point where it will cause the bus, while traveling the highway, to stop and thus create a hazardous, hulking obstacle in the path of other vehicles on the highway. The ICC regulations to which both plaintiff and defendant refer and accept as having the force and effect of law, require also that the braking system be so designed as “ * * * to insure proper continued functioning, * * * free of leaks, * * * ” so that “ * * * the air supply shall not be depleted * * The parking brake system is functioning properly while the bus is being driven on the highway when the air pressure is sufficient to keep the brake spring compressed; it is not functioning properly when the air supply is depleted.

Admittedly, there was “ * * * a parking brake failure * * a “failure” in that the compressed air supply in the reservoir became so depleted that it caused the brake to apply when not intended. The bus driver so testified; he also testified that the device on the dashboard, required and designed to warn him of that condition in time to take precautionary measures, did not function. Plaintiff testified that the bus stopped on the traveled portion of the highway without warning; that the stoplights, designed as a part of the system to operate automatically on application of this brake, did not come on.

The evidence was sufficient to show a defective condition in the parking brake system, a defect dn that part of the system supplying air to the brake, in violation of 49 CFR, §§ 193.46 and 193.50.

Plaintiff contends that the failure of defendant to comply with the ICC regulations constituted negligence per se; defendant does not specifically deny this contention. It contends that it is liable, as owner of the bus, for injuries caused by defective brakes only if it was negligent in failing to discover and remedy the defect; that the burden was on plaintiff to prove it had knowledge of the defect in time to make necessary repairs. It cites in support of this contention the cases in footnote 2. The cases are distinguishable. In fact, the court, speaking through Judge Bennick, said in the Monsour case, 115 S.W.2d at 1. c. 223: “ ‘Knowledge of the defect * * * is not a necessary element of negligence where the act or omission, in and of itself, involves a violation of a duty, as in case of violation of a statute or ordinance, in jurisdictions [such as our own] where this is regarded as negligence per se, where there is an absolute duty on the owner * * * of property to keep it in a safe condition * *

The plaintiff having proved violation of the regulations, it devolved upon defendant to prove legal excuse or avoidance of its failure to observe the duty imposed by the regulations. Lochmoeller v. Kiel, Mo.App., 137 S.W.2d 625, 630 [5-8]; Bowman v. Ryan, Mo.App., 343 S.W.2d 613, 622 [21]; Sams v. Adams Transfer & Storage Co., Mo., 234 S.W.2d 593, 594 [1]. The extent of defendant’s effort to prove excuse or avoidance was to show by its driver that before he left the Terminal he inspected the brakes and lights and found them functioning properly, and that he used the brakes many times later and they functioned properly. This evidence, at best, presented a question for determination by the jury.

We hold that plaintiff made a sub-missible case of negligence; in so holding, we necessarily rule too that plaintiff’s verdict-directing instruction was supported by evidence. The question of causal connection between the negligence charged and plaintiff’s injury was also for determination by the jury.

In connection with its contention that plaintiff failed to make a submissible case, defendant briefs another point: that granting a new trial on the ground that there was no evidence to support the giving of plaintiff’s verdict-directing instruction was the equivalent of granting a new trial on the discretionary ground that the verdict was against the weight of the evidence.

There is no merit in this point. Defendant’s motion for new trial alleged, in ground No. 3, that the verdict was against the weight of the evidence. The court sustained the motion on ground No. 12, error in giving instruction No. 3, and thus, in effect, overruled it on all other grounds. State ex rel. Sturm, et al. v. Allison, Mo., 384 S.W.2d 544, 547 [3]. The court did not specify discretionary grounds for its order' and we may not presume the new trial was granted on such grounds. Civil Rule 83.06 (c), V.A.M.R.

Plaintiff contends that the court erred in setting aside his judgment on the ground he was guilty of contributory negligence as a matter of law; that under the evidence and the law the issue of his negligence was clearly one for the jury. Contributory negligence of a plaintiff “ * * * is usually a jury question, and always is unless it may be said from all the evidence and the reasonable inferences therefrom, viewed in the light most favorable to plaintiff, that the only reasonable conclusion is that plaintiff was proximately negligent.”' Roddy v. Francis, Mo.App., 349 S.W.2d 488, 492 [4]; Lemken v. Brooks Truck Lines, Inc., Mo., 322 S.W.2d 803. Stated in other words, in order to hold plaintiff contributorily negligent the conclusion must be reached “ * * * that reasonable minds could not differ as to plaintiff’s negligence; otherwise the question of plaintiff’s contributory negligence was for the jury.” Wood v. St. Louis Public Service Co., 362 Mo. 1103, 246 S.W.2d 807, 812.

Defendant contends that plaintiff was contributorily negligent in that he failed to maintain a proper lookout; that he should have but failed to see the well-lighted bus slowly stopping within the 650 feet it took to come to a complete stop before he got to a point within 50 feet of the bus and within time to stop or pass without collision.

We hold that under this evidence reasonable minds could differ as to plaintiff’s negligence; that this issue was solely for the jury; and, that the court erred in ruling plaintiff was negligent as a matter of law.

These two vehicles had been traveling one behind the other in the same lane at the same steady speed for approximately ten miles maintaining a distance interval between them of 300-400 feet. Immediately before the collision, the bus decreased its speed and stopped in that lane as the tractor-trailer maneuvered to pass by increasing its speed to shorten the distance between the two before moving into the passing lane. Of course, in these circumstances, the interval between them closed in less time and space than it would had the bus maintained its same speed. “ * * * it is, * * *, a matter of common knowledge that a gradual slowing of speed without signal might, under some circumstances, be more difficult to discern by the following driver than a sudden stop, and a jury reasonably might believe that the following driver would not become conscious of such slackening of speed by the forward vehicle until the distance between the two had lessened considerably.” Lafferty v. Wattle, Mo.App., 349 S.W.2d 519, 1. c. 526. With the forward vehicle decreasing and the following vehicle increasing speed at the same time a jury reasonably might believe, under the facts in this case, that the following driver would not, in the exercise of the highest degree of care, see and realize that the forward vehicle was stopping until it was too late to avoid a rear-end collision.

It may not be said as a matter of law that plaintiff was guilty of negligence in failing to keep a lookout, or in driving too closely behind the bus before moving into the passing lane, merely because the tractor-trailer collided with the bus. It reasonably could be said that plaintiff, in the exercise of the highest degree of care, was not required to anticipate and meticulously guard against the possibility that the bus, which had been traveling steadily at the same speed, would, without signal, in violation of § 304.019, RSMo 1959, V.A.M.S., decrease its speed and stop directly in plaintiff’s path on a limited access highway in open country, a mile beyond the nearest town, where, as a matter of common knowledge, regular stopping places for passenger buses do not exist. Roddy v. Francis, supra; Young v. Anthony, Mo., 248 S.W.2d 864, 867 [2]; Woods v. Chinn, Mo.App., 224 S.W.2d 583, 586 [2]. We have read the authorities cited by defendant; they are not applicable.

The issue of negligence vel non of plaintiff was for the jury.

The judgment and order are reversed and the cause is remanded with directions to reinstate the judgment for plaintiff.

HOLMAN, C. J., HENLEY, FINCH, EAGER and DONNELLY, JJ., concur.

STORCKMAN, J., dissents in separate dissenting opinion filed.

Dissenting Opinion

STORCKMAN, Judge.

I respectfully dissent on the ground that the plaintiff is guilty of contributory negligence as a matter of law in that the plaintiff testified that he speeded up without going into the passing lane and failed to discover that the defendant’s bus had slowed down or stopped until it was too late to avoid striking the bus. The plaintiff’s testimony establishes he did not exercise the highest degree of care for his own safety in the operation of his motor vehicle while undertaking to pass the defendant’s bus. Section 304.016, RSMo 1959, especially subdivision 1(2).

SEILER, J., dissents and concurs in dissenting opinion of Storckman, J.

      . Interstate Motor Lines, Inc. v. Great Western Ry. Co., 10 Cir., 161 F.2d 968, 970 [3]; Kane v. Branch Motor Express Co., 2 Cir., 290 F.2d 503, 505; Fairport, P. & E. R. Co. v. Meredith, 292 U.S. 589, 54 S.Ct. 826, 828-829[3], 78 L.Ed. 1446.

      . Lowes v. Union Electric Co., Mo.App., 405 S.W.2d 506, 512; Monsour v. Excelsior Tobacco Co., Mo.App., 115 S.W.2d 219, 222[3]; Vogelgesang v. Waelder, Mo.App., 238 S.W.2d 849, 855.


author: EAGER, Judge.

text:
    STATE ex rel. KEYSTONE LAUNDRY AND DRY CLEANERS, INC., Plaza Cleaners and Laundry, American Laundry Company, Toy A. Cribbs, Mahlen Henry, Joseph Humphrey, James Thomas, Burl Garvin, Nolan Sherwood, Gale Ludwig, Frank Meyers and S. Woofcool, Relators, v. William A. McDONNELL, Charles E. Curry, J. Carl Anderson, Everett Van Matre, Albert J. Ahner, Robert Dorsey, as members of the Commerce and Industrial Development Commission, and Henry C. Maddox, Director of Commerce and Industrial Development, Respondents.
    No. 52756.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 8, 1968.

      Edgar M. Eagan, Jefferson City, for appellants.
    Norman H. Anderson, Atty. Gen., Arnold Brannock, Asst. Atty. Gen., Jefferson City, for respondents.
   EAGER, Judge.

The relators filed a petition for mandamus in the Circuit Court of Cole County in September, 1966, and the alternative writ was issued. Subsequently the cause was dismissed, after a hearing upon a combined return and motion to dismiss; the grounds alleged in that motion were (1) that such a proceeding would not lie to compel the performance of acts which were discretionary in nature; (2) that respondents had already acted and had no power to rescind their action; (3) that the petition did not state a claim upon which relief could be granted. It was further alleged, as a return to the alternative writ, that the controverted project was within the purview of §§ 71.790— 71.850, RSMo., 1965 Supp., V.A.M.S. The order and judgment of the Court specified that the relators had failed to state a claim upon which relief could be granted; it also contained a general finding in favor of the respondents. Following an unsuccessful after-trial motion, relators appealed. In this situation we consider the pleadings and the judgment. For the sake of clarity, however, we note here that the case arose out of the attempt of the City of Joplin to issue and sell revenue bonds in the amount of $260,000 under Art. 6, § 27 of our constitution, V.A.M.S., and the statutes cited above, for the purpose of acquiring a site, constructing a building, and purchasing equipment for a commercial laundry, to be leased to Industrial Linens, Inc. of Columbia, Missouri.

The petition alleged in substance: that certain of the relators are owners and operators of laundries in Joplin and that they, as a class, fairly represent the other commercial laundries there; that the other nine relators are citizens, taxpayers and residents of Joplin; that the respondents constitute the officers and members of the Industrial Development Commission (see § 255.061, 1967 Supp.), which controls the Division of Commerce and Industrial Development of the State of Missouri (respondent Maddox is the Director of the Division); that it is a function of the Division to approve or disapprove proposals of municipalities for industrial development under the statutes cited above; that the Council of the City of Joplin did. on February 7, 1966, approve a proposed project to be financed with revenue bonds in the amount of $260,000 for the acquisition of a site, the construction of a building, and the purchase and installation of laundry equipment, to be leased to Industrial Linens, Inc. of Columbia, Missouri, “for the operation of a laundry and rental service of linens, treated cloths, and treated entrance mats, and a full line of laundry service to the public, including industries.” The petition further alleged: that the City applied to respondents for approval of the project, describing it in part as a plant for “the rendering of a full line of specialized laundry service required by industries * * * ”; that relators requested the respondents not to approve the project, but that they did “unlawfully” approve it and so advised the City; that the project constitutes a commercial laundry, “A SERVICE BUSINESS,” and does not constitute “‘manufacturing and industrial development as provided by Art. VI, Sec. 27 of the Constitution of Mo., or for the construction of an industrial plant as defined by Section 71.790(3), Laws 1963, * * *”; that respondents had no jurisdiction, power or statutory authority to approve the project, but that it was their duty to disapprove it; that the issuance of a notice of disapproval was a ministerial duty, and that their failure to so act was a breach of a public trust and duty; that the unlawful approval of the project is vital to all service businesses in the state and affects the historical and economic classifications of businesses; that relators had no other complete and adequate remedy, that certain of the rela-tors had substantial investments in their commercial laundries in that trade area, and that the completion of this proposed project would give to the lessee substantial tax and interest advantages and consequently a competitive advantage over such relators. Relators prayed that a writ of mandamus issue commanding respondents to revoke their approval of the project, and for such other relief as might be proper.

We have already reviewed the motion to dismiss and the judgment of the trial court. The constitutional provision in question, Art. 6, § 27 (as amended in 1960 and 1965) is in part as follows: “Any city or incorporated town or village in this state, by vote of four-sevenths of the qualified electors thereof voting thereon, may issue and sell its negotiable interest bearing revenue bonds for the purpose of paying all or part of the cost of purchasing, constructing, extending or improving any of the following: * * * (2) plants to be leased or otherwise disposed of pursuant to law to private persons or corporations for manufacturing and industrial development purposes, including the real estate, buildings, fixtures and machinery; * *

The applicable statutes, originally §§ 71.-790-71.850, are now §§ 100.010-100.200. They define a “project” in § 100.010 as: “(5) ‘Project for industrial development’ or ‘project’, the purchase, construction, extension and improvement of industrial plants, including the real estate either within or without the limits of such municipalities, buildings, fixtures, and machinery; * Section 100.050 requires that the plan for any such project for industrial development shall first be approved by the governing body of the municipality and then submitted to the Division of Commerce and Industrial Development (emphasis is ours); Section 100.060 provides that the Division shall approve when it finds that: the project will further economic development and employment and the general welfare of the municipality and the state, and that it is economically feasible. Section 100.070 provides that the Division shall notify the municipality of its approval or disapproval. Thereupon, under the following sections, the municipality may proceed to give its final approval and carry out the project under the requirements of those sections. It is specifically provided, however, that “No project shall be carried out by the municipality without the prior approval of the division of commerce and industrial development * * *.” Section 100.080.

It may thus be seen that the key requirements, insofar as the nature of such proposals is concerned, are that they be plants “for manufacturing and industrial development purposes” (constitution), and an “industrial plant” (§ 100.010). Respondents concede here that this particular project would not constitute a manufacturing plant and that the issue is whether or not it would be an “industrial plant.” This Court has jurisdiction for the reason that a construction of Art. 6, § 27 is involved and in fact is required. The contention of respondents to the contrary is denied without further discussion.

The first point of substance which we must consider is whether the writ of mandamus will lie in these circumstances. It is true, as respondents insist, (1) that the writ will not ordinarily issue to control the discretion of a court or an administrative body acting within its jurisdiction. State ex rel. Schulz v. Fogerty, Mo. App., 195 S.W.2d 908; State ex rel. Richardson v. Baldry, 331 Mo. 1006, 56 S.W.2d 67; State ex rel. Hand v. Bilyeu, Mo.App., 346 S.W.2d 221 (approved by this court at 351 S.W.2d 457, loc. cit. 460). Respondents also contend, (2) that the writ may not issue here because their action has been completed and they may not be required now to rescind it, citing State ex rel. Richardson, supra; State ex rel. Hagerman v. Drabelle, Mo., 191 S.W. 691, and State ex rel. Nick v. Edwards, Mo., 260 S.W. 454. We first consider (1) above. An exception to the general rule is recognized where the administrative board (or court) has acted unlawfully or wholly outside its jurisdiction or authority or has exceeded its jurisdiction, and also where it has abused whatever discretion may have been vested in it. State ex rel. Knight Oil Co. v. Vardeman, Banc, Mo., 409 S.W.2d 672; State ex rel. Hagerman, supra, at 191 S.W. loc. cit. 694; State ex rel. Schulz, supra, at 195 S.W.2d loc. cit. 911; State ex rel. Lovell v. Tinsley, Mo.App., 236 S.W.2d 24; State ex rel. Kelleher v. Board of President & Directors of St. Louis Public Schools, 134 Mo. 296, 35 S.W. 617; State ex rel. Richardson, supra; 55 C.J.S. Mandamus § 63 c, p. 103-104. “If, as a matter of law,” the action of respondents is wrong, then they have abused any discretion which they may have had. State ex rel. Knight Oil Co., supra, at 409 S.W.2d loc. cit. 675. The determination of questions of law is reserved to the courts, and such matters may not be decided by an administrative board. State ex rel. Hand, supra; State ex rel. Folkers v. Welsch, 235 Mo.App. 15, 124 S.W.2d 636.

As to (2) above, namely, that the writ may not issue after respondents have acted, we also find in the cases instances where the writ has been so issued. In the recent case of State ex rel. Knight Oil Co., supra, the trial court had ordered the join-der of a party, and this court held that the order was improper as a matter of law. Our peremptory writ issued, commanding the trial court “to vacate its order,” among other directions. In State ex rel. Hand v. Bilyeu, Mo.App., 346 S.W.2d 221 (approved, as already noted, at 351 S.W.2d 457) the Court said, at loc. cit. 228: “Mandamus is applicable to' compel the doing of that which is right * * * though it may sometimes have the effect of rescinding that which was wrong. And where acts of public officers in respect to public rights are involved, the good faith and solemn belief of the officer should not be concerned where there has been an abuse of discretion accomplished by disobedience of the law. To hold otherwise would be to surrender the functions of the judiciary to the administrative.” See also: State ex rel. Lefholz v. McCracken, 231 Mo.App. 870, 95 S.W.2d 1239; State ex rel. Kelleher v. Board of President & Directors of St. Louis Public Schools, 134 Mo. 296, 35 S.W. 617. In State ex rel. Lovell v. Tinsley, Mo. App., 236 S.W.2d 24, the Court said at loc. cit. 27: “Mandamus is a writ which lies ‘to compel the undoing of a thing wrongfully and improperly done, when such wrongfully and improperly done thing precludes or prevents rights to which one is under the law entitled.’ Mahon v. Scearce, Mo.App., 228 S.W.2d 384, loc. cit. 389.”

It is true that ordinarily mandamus does not lie where other remedies are available. But such other remedies must be adequate and equally efficient. State ex rel. Lefholz, supra; State ex rel. Knisely v. Holtcamp, 266 Mo. 347, 181 S.W. 1007; Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845, 848; State ex rel. Marcum v. Sappington, Mo.App., 261 S.W.2d 385. And the discretion of the court with regard to the issuance of the writ is sometimes influenced by the “public importance” of the matter. Perkins, supra, 78 S.W.2d at loc. cit. 849. We shall keep the foregoing principles in mind as we proceed in our discussion and reach our own conclusions.

We must next determine whether the proposed project is one fairly within the contemplation of our constitution and statutes. As already indicated, the respondents assert that the laundry constitutes an “industrial plant”; technically, the constitution requires that it be a plant for “industrial development purposes.” Counsel for respondents rely upon definitions, and upon certain Pennsylvania cases which we shall discuss. We note, first, that the particular statutes under which respondents acted here (§§ 100.010-100.200) define and require that such “projects” be “industrial plants,” whereas the functions of the Division generally (§ 255.031) include “all facets of the economy” and the Commission is charged with a broad duty of promotion. Section 255.021(1), dealing with the functions of the Division, appears to make an express distinction between “industrial” and “commercial” development programs by the use of both words in sequence; and see also § 255.031(1). In other words, the purposes for which municipal revenue bonds may be issued by a city are much more restricted than are the general functions of the Division. Thus,' “commerce” in its broad sense is included within the functions of the Division, but not in the constitutional or statutory authority for the issuance of such bonds. We believe that this comparison is, to some extent, indicative of an underlying intent. Referring again to § 27, Art. 6 of the constitution, supra, namely, — “plants * * * for manufacturing and industrial development purposes” it seems possible that the use of the word “and” might indicate that any such plant should be constructed and used for both manufacturing and industrial purposes; this, by reason of the failure to use the word “or” in lieu of “and.” However, we shall not construe the term on so narrow a construction, but determine whether the proposed laundry is an “industrial plant.”

Counsel cite State ex rel. Kansas City Power & Light Co. v. Smith, Banc, 342 Mo. 75, 111 S.W.2d 513, loc. cit. 515-, where the Court, in a wholly different context, defined “industrial establishment” as: “ * * * a place of business ‘which employs much labor and capital and is a distinct branch of trade; as, the sugar industry.’ Webster’s New International Dictionary.” That case involved the right of the State to levy sales taxes upon electric current sold to municipalities for their city waterworks, and to the street railway system of Kansas City. The Court held that those customers were not “domestic, commercial or industrial customers” within the meaning of the applicable statute, and noted also that each of those words had a separate meaning. It should also be noted that the statute involved there expressly distinguished between “commercial” and “industrial” customers. The actual holding was that the customers in question did not come within any of those categories. The Court noted that “the phrase ‘domestic, commercial or industrial consumers,’ standing alone, would lead to sharp differences of opinion as to its meaning.” The somewhat casual definition quoted above is in nowise controlling for our purposes. In such generalized references to the “sugar industry” or the “steel industry,” etc., the word “industry” is used as a classification of a total line of business endeavor which includes plants, offices and all the accessories of a major element of our business world. Definitions from that point of view are of little value here.

Since the only cases cited by either side which approach a determination of our question are Pennsylvania cases, we consider those now. All of them involved constructions of taxing statutes. The cases we shall thus consider are United Laundries, Inc. v. Board of Property Assessment, 359 Pa. 195, 58 A.2d 833; North Side Laundry Co. v. Allegheny County Board of Property Assessment, 366 Pa. 636, 79 A.2d 419, and Messenger Publishing Co. v. Board of Property Assessment, 183 Pa.Super. 407, 132 A.2d 768. The issue in all of them was the construction of Pennsylvania statutes specifying what properties should be assessed as real estate and, arftong various other categories, the statutes included “mills and man-ufactories of all kinds,” and “all other real estate not exempt by law from taxation.” The property owners involved in the first two cases were largely commercial laundries. In United, supra, the lower court had reduced the assessment by eliminating the value of machinery and equipment. On appeal the Court held that a laundry was not a “manufactory,” but concluded that all machinery and equipment was taxable as real estate under the Pennsylvania “assembled industrial plant doctrine,” which had been recognized in sundry prior cases; this, in substance, was a ruling that all machinery and equipment placed in and regularly used in such plants became a part of the real estate for purposes of taxation. The Court reaffirmed that doctrine and also held, rather casually it seems, that a laundry may be classified as an industrial plant under the doctrine by merely saying, 58 A.2d at loc. cit. 835: “Clearly, it was the intendment of the Legislature also to cover and tax, under that same general term, machinery and equipment necessary to the operation of such plants as that of appellees.” The opinion is thus founded upon the somewhat peculiar local doctrine that machinery, although not constituting fixtures within the ordinary concept, is nevertheless a part of the real estate. Incidentally, two Judges dissented there.

In North Side Laundry, supra, the assessment of the real estate of a commercial laundry was again involved. The contention was made that there had been a systematic and intentional undervaluation of other taxable property in the same class by failing to apply the “assembled industrial plant doctrine” to other properties such as service stations, automobile repair shops, hotels, etc., all of which were alleged to be “service industries.” This contention was denied. The Court merely reiterated its ruling that the laundry was an “industrial plant” within the meaning of the Pennsylvania taxing statutes, and that its equipment was part of the real estate. The Court said, however, at 79 A.2d loe. cit. 421: “Therefore, the fact that the businesses to which plaintiff referred are sometimes generically called ‘industries’ is irrelevant to the issue here raised. The question is whether their establishments are industrial plants. * * * The law can do no better than to define an industrial plant as that type of establishment which the ordinary man thinks of as such. Certainly a commercial laundry comes within that definition but the other businesses here mentioned do not.” In the case of Messenger Publishing Co. v. Board of Property Assessment, 183 Pa.Super. 407, 132 A.2d 768, a decision of the Superior Court of Pennsylvania, the Court held that a structure in which a newspaper was printed was an industrial plant, under the “assembled plant” doctrine; but the Court noted also (which might well have been an independent ground for the decision) that such establishments had long been considered as “manufacturing corporations” in Pennsylvania.

We find that the Attorney General furnished an opinion (not cited in either brief) on March 29, 1966, to the Director of the Division of Commerce & Industrial Development concerning this project. Therein he considered the Pennsylvania cases and the Kansas City Power & Light Co. case, supra, and arrived at the conclusion that the laundry in question was an “industrial plant.” His opinion contains nothing which we have not independently considered in this opinion, and nothing which is not contained in the brief of respondents. In fact, respondents seem to have followed that opinion without citing it.

The Pennsylvania cases are founded upon a peculiar doctrine of real estate taxation, which is more or less contrary to general law. That Court recognizes, however, that one essential question is: Would the ordinary man regard a commercial laundry as an “industrial plant?” It also recognizes that references to a widespread type of business as an “industry” are of no consequence; on that we agree, and such a reference in State ex rel. Kansas City Power & Light Co., supra, is of no real value here. We also note that in the latter case the Court was attempting to define an “industrial establishment” in a wholly different context from the meaning of the words “industrial plant” as used in the controverted sections of our constitution and statutes.

Basically, we must come back to construe for ourselves the phrase “plants to be leased * * * for manufacturing and industrial development purposes * * *.” And we note again that, while respondents concede that a laundry cannot be a manufacturing plant, nevertheless the use of that word in the provision may be some evidence of an intent as to the general nature of the projects included. In construing a constitutional provision, nontechnical words are to be taken in their natural and ordinary meaning. State ex rel. Heimberger v. Board of Curators of University of Mo., 268 Mo. 598, 188 S.W. 128, 130; State ex rel. and to Use of Buck v. St. Louis & S. F. R. Co., 263 Mo. 689, 174 S. W. 64, 65; State ex rel. Gordon v. Becker, 329 Mo. 1053, 49 S.W.2d 146, 148; Vanlandingham v. Reorganized School Dist. No. R-IV of Livingston County, Mo., 243 S.W.2d 107, 109. And the understanding of the people who adopted the Constitution (or amendment) is a vital consideration. In Household Finance Corp. v. Shaffner, 356 Mo. 808, 203 S.W.2d 734, the Court said at loe. cit. 737: “However, while it is proper to consider the debates, ‘the question in interpreting a constitution is not so much how it was understood by its framers as how it was understood by the people adopting it, since the constitution derives its force as a fundamental law, not from the action of the convention, but from the people who have ratified and adopted it * * 11 Am.Jur. 707. The only way we can determine what meaning was conveyed to the voters by the provision is to determine what it means to us, giving the words used their ordinary and usual meaning.”

Considered in their full context, we do not construe the words “plants * * * for * * * industrial development” as fairly including commercial laundries. We do not agree with the rulings in the Pennsylvania cases if in fact they are applicable at all to our situation, which we doubt. We must exercise our own judgment in arriving at what we think the people of Missouri intended, and it is our firm belief and our ruling that they did not intend thus to authorize city revenue bond projects for the construction and financing of commercial laundries which, in essence, are service businesses. We shall not attempt to define an “industrial plant” in a form which would be applicable to all cases and situations. That would be most difficult, probably misleading as applied to other facts, and perhaps impossible. A laundry neither manufactures anything nor does it process anything by changing its characteristics or nature; it is not a plant for large-scale storage or assembly; it merely washes garments, cloths, rags, etc., and in this instance, rents out certain accessories. In these activities such a project would naturally compete with local business, and perhaps do so with distinct advantages in its favor. A laundry is purely a service institution. Neither the size nor the cost of the building and equipment nor the number of employees is controlling.

We have examined, by way of analogy, the laws of several neighboring states on this general subject. Kansas has, by express wording, including commercial projects within the scope of permissive developments. Kansas Stat.Ann., Official, Vol. 1, § 12-1740. In others, the projects are generally confined to industrial development. Vol. 2A Ark.Stat. 1947 Ann., 1967 Pocket Sup., Tit. 13, Ch. 16; Ark. Constitutional Am., No. 49, 1967 Pocket Sup.; Okla.Stat.Ann., Title 62, Ch. 5, § 652; Okl.Constitution, Art. 10, § 35 (1962) ; Smith-Hurd Ill.Ann.Stat. Ch. 48, § 833(c). The Iowa Code Ann., Vol. 22, 1966 Cum. Sup., Ch. 419, § 419.1, includes the “* * * manufacturing, processing or assembling of any agricultural or manufactured products, * * The Michigan Statutes, Vol. 4A, Michigan Stat.Ann., 1965 Cum.Sup., § 5.3533(22), Comp.Laws 1948, § 125.1252, P.A.1963, No. 62, are in part as follows: “Sec. 2. As used in this act: (a) ‘industrial building’ means any building or structure suitable for and intended for or incidental to use as a factory, mill, shop, processing plant, assembly plant, fabricating plant, warehouse or research and development facility.” In some of these states the statutes are apparently considered as coming within the permissible scope of general constitutional provisions without the necessity of any specific authorization.

There may be a somewhat “gray” line of demarcation between the boundaries of “plants for industrial development” and of those businesses which are rightfully excluded. Certainly the construction and leasing of a store to Woolworth’s, or a hotel, or an automobile repair shop, or a hardware store, or a shopping center, or a bank, would not be permissible. Such businesses (except possibly the stores) are primarily service institutions and, in any event, they are all strictly commercial projects; the mere fact that they might enhance the economic development of the community by employing a large number of people and by affecting commerce generally will not suffice to permit their classification as “industrial plants.”

We do not hold that any of our industrial development statutes, §§ 100.010 — 100.-200, 1967 Sup., V.A.M.S. are unconstitutional. We merely hold that the project proposed here is not within the contemplation of either the constitution or those statutes. The respondents had no authority to approve the plan, and their purported approval resulted from an attempt to construe the constitution and the statutes, which construction we now hold to have been improper. The fact that they received an opinion from the Attorney General does not alter the situation in any way, except that it relieves them from any accusation of intentionally wrongful conduct.

Under the principles applicable to mandamus, which we have reviewed at some length, we hold that the peremptory writ should issue here. Although the City of Joplin is not a party to this cause, the approval of respondents is an element absolutely necessary to Jhe culmination of the project, and a writ in the present case will be fully effective. The respondents have acted outside their jurisdiction by presuming to construe the constitution and to extend its terms to this project; if they had a discretion at all, it has been abused, for their action has been wrong “as a matter of law.” State ex rel. Knight Oil Co. v. Vardeman, Banc, Mo., 409 S.W.2d loc. cit. 675. Although respondents have already acted in their purported approval of the plan, the rights and interests of the public of the whole state are involved, a legally wrongful action has been taken, and a rescission is in order. The judgment of the Circuit Court is reversed. It is directed to issue its peremptory writ of mandamus commanding respondents: (1) to rescind their purported approval of the project submitted to it by the application of the City of Joplin, as referred to herein; and (2) to notify the said City that they have no authority under the law to approve the said project.

All of the Judges concur.


author: G. DERK GREEN, Special Judge.

text:
    STATE of Missouri, Respondent, v. Walter Lee MORTON, Appellant.
    No. 47984.
    Supreme Court of Missouri, Division No. 3.
    April 11, 1968.
    Norman H. Anderson, Atty. Gen., Jefferson City, Timothy D. O’Leary, Sp. Asst. Atty. Gen., Kansas City, for respondent.
    Kenneth K. Simon, Kansas City, for appellant.
   G. DERK GREEN, Special Judge.

On October 8, 1959, in the Circuit Court of Jackson County, the defendant was convicted by jury trial of Robbery in the First Degree. The Information also charged two prior felony convictions. The trial court, as provided in § 556.280, RSMo 1959, V.A. M.S. as amended by Laws of 1959, SB 117, held a hearing prior to the submission of the issues to the jury and having found against the defendant as to the previous convictions, following the jury’s verdict proceeded to determine defendant’s punishment and fixed his punishment at imprisonment in the penitentiary for a term of 20 years. This is the third time that the defendant has been before this Court in an effort to set aside the judgment and sentence then imposed. After the overruling of defendant’s Motion for a New Trial, allocution, sentence and judgment, the defendant filed Notice of Appeal and was granted leave to appeal as a poor person. His appeal was heard in this Court, decided on October 10, 1960, and reported in 338 S.W.2d 858. The judgment was there affirmed.

Later, the exact date not being shown in this record, the defendant filed a motion in the Circuit Court of Jackson County pursuant to S.Ct. Rule 27.26, V.A.M.R. asking that the sentence and judgment be vacated. The trial court overruled his motion, and he again appeáled to this Court. This appeal was decided on October 9, 1961, and is reported in Mo., 349 S.W.2d 914. The judgment of the trial court was again affirmed.

The defendant was represented by able counsel in the trial court in his trial before the jury, in presentation of his Motion for New Trial and in the preparation and approval of the transcript filed in appeal in that case. However, counsel did not appear for the defendant in this Court in presenting the appeal in either the first or second time that it was presented to this Court. For this reason, and following the decision in Swenson v. Donnell, 8 Cir., 382 F.2d 248, it was ordered that the judgment of this Court affirming the conviction of the defendant be set aside and the cause reinstated on the docket of this Court for hearing. It was ordered that counsel be appointed to represent the defendant on appeal in accordance with S.Ct. Rule 29.01 (c). Counsel was appointed, prepared and filed brief for appellant and appeared in this Court to orally argue this appeal.

Both appellant and respondent, in their written briefs, accepted and adopted the statement of facts as recited in the case reported in Mo., 338 S.W.2d 858, and that statement of facts is here adopted without repetition, except as may be necessary in considering the questions raised. The appellant candidly states in brief and oral argument that upon review of the record in this case, he “considers, after due and careful deliberation that the trial court and Supreme Court on the first appeal, exercised all care with respect to watchful preservation of defendant’s rights, and further, that the authorities relied upon by said courts in the support of their respective decisions are current and proper in application of this appeal, and that no substantive changes have occurred sufficient to alter these authorities.” Appellant’s only contention here made is that he was denied due process of law under the 14th Amendment to the Constitution of the United States “by the State’s failure to give appellant and counsel timely and sufficient notice of the Habitual Criminal Act charges pending, and filed on the day of the trial, October 7, 1959 by Amended Information.” It is that point that will be here considered.

For this purpose some additional statement of facts may be helpful. The offense for which the defendant was charged and convicted was alleged to have occurred on March 23, 1959. The transcript indicates that the defendant was taken into custody on that date and after preliminary proceedings in the Magistrate Court, the case was lodged in the Circuit Court and Information was filed on July 2, 1959. Defendant was arraigned and entered a plea of not guilty on July 16. The case was then passed to the next term beginning on September 14 and set for trial on that date. On September 14, the case was reset for trial on October 5. Defendant was represented by counsel apparently of his own choosing. On October 7, the Prosecuting Attorney filed an Amended Information. This Information was in substantially the same language, if not exactly the same, as the Information filed on July 2, with the exception that two prior convictions were alleged. No objection was made by the defendant or his counsel at that time to the filing of the Amended Information, and the record does not show that any request was made for additional time to prepare for trial. The parties answered ready for trial, the jury was impaneled, the evidence was adduced, and the trial was concluded on the following day, October 8, with the rendering of the verdict. The Motion for New Trial referred to the Amended Information and contended that it was error to permit its filing on the ground that it permitted the habitual criminal charge in conjunction with the robbery, that it increased the penalty and changed the proceeding in the presentation of the said cause, that the defendant was denied the right of a preliminary hearing on said new charges and that he was not granted time to meet the same. The Motion also attacked the constitutionality of the Amended Habitual Criminal Act, § 556.-280, Revised Statutes, Amended, referred to above. These points were ruled against defendant in the original appeal, and defendant has conceded the correctness of the ruling then. Reliance is now made solely upon the contention that defendant was denied his substantive, fundamental constitutional rights under the 14th Amendment to the Constitution of the United States by the failure of the State to give appellant “timely and sufficient notice” of the Habitual Criminal Act charge.

In dealing with the filing of the Amended Information on the previous appeal, the Court noted that no objection was made to the filing of the Amended Information, there was no request for a preliminary hearing or for additional time to prepare for trial and that “by failing to object and proceeding to trial defendant waived the right to complain of the matters mentioned in said assignment.” In State v. Casteel, Mo., 64 S.W.2d 286, reference was also made there to previous cases in which it had been held that it was not error for the Court to deny a request for a preliminary hearing based upon the fact that an Amended Information had been filed, which, in addition to the originally charged crime, alleged a former conviction under the Habitual Criminal Act. State v. Long, 324 Mo. 205, 22 S.W.2d 809.

Defendant also recites as supporting this position In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 683. This case is not at all similar to the one at bar. There the defendant was summarily sentenced for contempt by a judge sitting as a one-man grand jury, the hearing was in secret, and defendant was committed because the judge found that his testimony was inconsistent with the testimony given by other witnesses. Defendant had not been present at the giving of testimony by other witnesses; he had had no notice at any time that a charge would be filed or made against him, and he had had no opportunity to hear the testimony of other witnesses or to cross-examine them in any way. The Court held that it was a violation of his right to due process under the 14th Amendment because of the secrecy of the proceedings, the denial of a public trial and further, that he had been summarily committed without any opportunity to be heard in his own defense, to present evidence, or to be confronted by and cross-examine the witnesses who had given contrary testimony. The Court held that the accused had a right to his day in court consisting of reasonable notice of the charge against him and an opportunity to be heard in his defense, including the right to examine witnesses, to offer testimony and to be represented by counsel. It did not treat with an amendment under the Habitual Criminal Act, did not define reasonable notice, or consider questions of waiver. In the present case, defendant had been arraigned on July 16 and acquainted with the charge against him two months before trial; he had a public trial with the right to give testimony and the right to cross-examine and be confronted by witnesses against him.

It has been held that the amendment of an information to incorporate allegations invoking the application of the Habitual Criminal Act does not constitute a separate or different offense and that defendant, in answering ready for trial without making objection and without asking for additional time, cannot be held to be prejudiced. State v. Crow, Mo., 388 S.W.2d 817, cert. denied 383 U.S. 914, 86 S.Ct. 901, 15 L.Ed.2d 668. In that case five days’ notice had been given to defendant’s counsel of the intent to amend the Information. Defendant stated when the case was called that he should have more time to prepare a defense but his counsel answered ready for trial; the court on appeal held that the amendment invoking the application of the Habitual Criminal Act did not constitute a separate or different offense, and that in view of the circumstances there could be no prejudice.

In State v. Kelly, Mo., 36S S.W.2d 602, error was alleged “in permitting the information to be amended on the morning of trial without granting a continuance.” The only amendment made was the inclusion of the prior convictions, sentence and confinement under the Habitual Criminal Act. In disposing of this matter, the Court stated “There is no merit in this point for several reasons: (1) defendant was represented by counsel and no request was made for a continuance; (2) in view of defendant’s admission of this and eight other convictions it would be unreasonable to suppose that a continuance would have afforded him any defense against the charge as thus made; (3) the trial court would have been fully justified in refusing a continuance, had one been requested, since the substantive offense was not changed, and no substantial rights of defendant are shown to have been prejudiced.” In support of this ruling, the Court cites State v. Ninemires, Mo., 306 S.W.2d 527; S.Ct.Rule 24.02; State v. Hutchin, Mo., 353 S.W.2d 701; State v. Withers, Mo, 347 S.W.2d 146.

In the present case, the defendant admitted the prior felony convictions as alleged in the Information, and the reasoning in the cited cases is applicable here. The prior felony convictions were not brought to the attention of the jury by the State in its case, but the defendant voluntarily testified and admitted them in his testimony. No substantial rights of defendant were violated, and it is not shown that the defendant was in any way prejudiced by this amendment. In State v. Stumph, Mo, 349 S.W.2d 954, it was said that the amendment charging a prior conviction of a felony did not constitute a charge of an additional or different offense. To the same effect is State v. Ninemires, supra, and State v. Long, 324 Mo. 205, 22 S.W.2d 809. No authority is cited by defendant to support his contention that the mere filing of an Amended Information on the day of trial violates his constitutional rights and deprives him of due process. The cases above referred to would indicate to the contrary, and the reasoning there followed could lead to no other conclusion. No error is found and no constitutional right is found to have been violated.

The judgment of conviction is affirmed.

EAGER, P. J, and ARONSON, Special Judge, concur.


author: DONNELLY, Judge.

text:
    Florence HECKER, Respondent, v. C. Monville SCHWARTZ and Lloyd E. Bennett, Co-Executors of the Estate of Edward Longinette, Deceased, Appellants, and Kent Gage, Defendant.
    No. 52833.
    Supreme Court of Missouri, Division No. 2.
    March 11, 1968.
    As Modified on Court’s Own Motion and Motion for Rehearing or to Transfer to Court En Banc Denied April 8, 1968.

      Kappel & Neill and Robert E. Staed, St. Louis, for respondent.
    F. X. Cleary, Paul S. Brown, Daniel T. Rabbitt, Jr., Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellants Schwartz and Bennett.
   DONNELLY, Judge.

In this jury-tried action for damages resulting from a vehicular collision in the City of St. Louis, which occurred at approximately 4:50 p. m. on December 8, 1963, plaintiff, Florence Hecker, received a verdict in the amount of $50,000 against defendant executors of Edward Longinette, deceased. The jury returned a verdict in favor of defendant Gage. The executors appealed. This opinion is written on reassignment.

The collision occurred on the Grand Avenue viaduct, which extends north and south, and which, at the time of the collision, was covered with a solid sheet of ice and was slippery. The viaduct is six lanes wide, three lanes northbound, and three lanes southbound, with a painted center line. The vehicles involved were driven by Edward Longinette, traveling north, and Kent Gage, traveling south. Plaintiff was a passenger in the Longinette car, riding in the right rear seat. Longinette’s wife was riding in the right front seat. Mrs. Elea-nore Welsh was riding in the left rear seat. Longinette and his wife died after the collision and before the trial. The collision occurred near the center line of the viaduct. The investigating police officer was unable to determine the point of impact.

Appellants contend (1) that plaintiff failed to make a submissible case against Longinette’s executors, and (2) that Instruction No. 3 was prejudicially erroneous. We reverse and remand.

Plaintiff testified, in part, as follows:

“Q Mrs. Hecker, I am not sure I am making myself clear. Just prior to the collision, did you see the Gage automobile?
“A Come over, you mean? Oh, yes, yes.
"Q How far away from you was it when you first saw it ?
“A About two car lengths.
“Q Two car lengths. A Approximately thirty feet.
“Q You were travelling which way?
“A We were travelling north.
“Q On the viaduct ? A On the viaduct.
“Q What was your rate of speed as you were travelling across the viaduct?
“A I would estimate the speed at thirty miles an hour.
“Q Did you cry out anything when you saw this car ?
“A Yes, I did. When I seen this car I said, ‘Oh, my God, look at that silly driver. He is coming right for us.’
* * * * * *
“Q * * * What was the position of your car with reference to- the center line just prior to the collision?
“A He [Longinette] was about, from the middle line, the center line of Grand Avenue, two feet.
“Q Had you been travelling in the same lane ? A Yes.
“Q About two feet from the center line of Grand Avenue?
“A That is correct.
“Q You could see out the windshield as well as the windows on each side ? A Yes, that’s right.
“Q That is a correct statement? A Yes, it is.
“Q You, of course, know what the center line of a street is, don’t you? A Yes, I do.
“Q There was such a line painted on Grand Avenue or Grand Boulevard, wasn’t there? A There was, yes sir.
“Q Do you know whether it was a single line or double line?
“A Well, I am pretty sure — I think it was a double line there, but I don’t know for sure. I know there was a white line going down there. I am positive of that.
“Q That was the line that you felt marked the center line of the bridge? A Yes.
“Q Of Grand Avenue? A Yes, that’s right.
******
ííq * * * \\rellj was Mr. Longinette driving to the right or to the east of the center line of Grand Avenue, Mrs. Hecker?
“A Of the center line?
“Q Yes? A He was driving to the right of it.
******
“Q My question is, did he [Longinette] at any time before this collision occurred ever cross to the wrong side of the center line? A Not that I know of.
“Q While you were there? A No.
“Q While you were looking? A No, he did not.
“Q He was always on his right side of the center line ?
“A Up until the impact.
“Q Then after the impact, you don’t know which way—
“A (Interrupting) I don’t know what happened.
⅜ jjc ⅝ ⅝: if.
“Q * * * Mrs. Hecker, did the Gage automobile cross the center line and come onto your side of the street?
“A Yes, it did.
“Q Is there any question about that in your mind?
“A No, there isn’t because it came right across.”

In Smith v. Siercks, Mo.Sup., 277 S.W. 2d 521, at 525, this Court said: “The courts of this State frequently have been called upon to consider the effect of testimony of a party such as was given by plaintiff in this case and to determine whether it amounts to a judicial admission binding upon the party, thereby depriving him of the benefit of the favorable testimony of * * * other witnesses. The law has been tersely stated by Bour, C., in the case of Burris v. Kansas City Public Service Co., Mo.App., 226 S.W.2d 743, 747, 748 [1-4]: ‘But a party’s testimony on the stand as a witness may be of such a nature as to have the effect of a judicial admission which not only relieves the opponent from adducing evidence, but precludes the party himself from disputing it, either by his own testimony or by other witnesses. Wigmore, Evidence, Sec. 2495a (3d Ed.). Thus, if a party in full possession of his mental faculties testifies unequivocally and understandingly to a material fact peculiarly within his own personal knowledge, which negatives his right of action or defense, he is precluded from relying upon any testimony to the contrary, unless he gives some reasonable explanation of his previous statement as having been the result of mistake, oversight, lapse of memory or misunderstanding. In the absence of such an explanation, the party may not have the benefit of any testimony which is contrary to his own testimony, whether given by himself, Steele v. Kansas City Southern R. Co., 265 Mo. 97, 175 S.W. 177, by his adversary’s witnesses, Elkin v. St. Louis Public Service Co., 335 Mo. 951, 958, 74 S.W.2d 600, or by his own witnesses. Mollman v. St. Louis Public Service Co., Mo.App., 192 S.W.2d 618, 621, and cases cited. Where, however, the testimony of a party is not a positive statement of fact within his own knowledge, but is a mere estimate or opinion, it does not have the effect of a judicial admission. This is especially so as to the circumstances of an accident or similar event, because in such a case the party’s testimony is subject to inexactness of observation and memory. See Kanopka v. Kanopka, 113 Conn. 30, 154 A. 144, 80 A.L.R. 619, a leading case. Thus a party is not conclusively bound by his mere estimate of time, speed or distance, or the position of an automobile or train at the time of an accident. His testimony in regard to such matters does not preclude him from relying upon the more favorable testimony of other witnesses in the case, unless the testimony of the other witnesses is inconsistent with his theory of the case or contrary to physical facts. * * * ’ ”

We believe that under plaintiff’s testimony she is conclusively bound to a theory of recovery based upon the fact that the collision occurred as Longinette drove in his half of the roadway and Gage drove in the wrong half of the roadway. Her testimony in this regard consists of positive statements of fact, not estimates nor expressions of opinion. She did not attempt to explain her testimony. Her testimony amounts to a judicial admission that the collision occurred in Longinette’s half of the roadway.

Plaintiff’s Instruction No. 3 reads as follows: “Your verdict must be for plaintiff FLORENCE HECKER and against defendants C. MONVILLE SCHWARTZ and LLOYD E. BENNETT, Co-executors of the Estate of EDWARD LONGI-NETTE, if you believe: First. EDWARD LONGINETTE either: failed to keep a careful lookout or drove at an excessive speed, or drove too close to the center line of Grand Avenue, and Second. EDWARD LONGINETTE’S conduct, in any one or more of the respects submitted in paragraph First, was negligent, and Third. Such negligence directly combined with the acts of defendant KENT GAGE to cause damage to plaintiff.”

We believe plaintiff made a sub-missible case for the jury against Lon-ginette’s executors on Longinette’s failure to keep a careful lookout. “In determining whether or not a submissible case was made for the jury on this issue, we must consider the evidence from a viewpoint most favorable to the plaintiff and give plaintiff the benefit of every reasonable favorable inference which the evidence tends to support.” Berry v. Harmon, Mo.Sup., 329 S.W.2d 784, 789.

Plaintiff testified, in part, as follows:

“Q When you first saw it [the Gage car], it was already in this movement coming towards you from the west, from your left to your right, from west to east? That is when you first saw it ?
“A When I first seen the car it was turning east.
“Q You didn’t see it at the time it was coming south towards you? A No.
“Q The first time you saw it was in this last movement from right to left, from west to east. Is that correct? A Yes.
“Q And at that time when you saw this car in this direction (indicating), tell the jury which way Mr. Longinette was looking?
“A Well, he had been talking to his wife; they were in conversation; he was looking to his right.”

In Riley v. Young, Mo.App., 218 S.W.2d 805, at 808, the Court said: “There is no doubt of the duty of the operator of a motor vehicle to keep a careful or vigilant watch ahead for other persons or vehicles on the highway; and for a motorist to fulfill this duty he must look in such an observant manner as to enable him to see and discover such conditions as one in the exercise of the highest degree of care for the safety of himself and others would be expected to see under like or similar circumstances.”

The evidence, considered favorably to plaintiff, shows that Longinette failed to keep his eyes on the roadway. Under these facts, it could be found that Lon-ginette could have avoided the collision if he had kept a careful lookout. We cannot hold as a matter of law that plaintiff failed to make a submissible case.

We believe that the giving of Instruction No. 3 was prejudicial error because only by resorting to speculation and conjecture outside of and beyond the scope of the evidence may it be found that the submitted acts of negligence on the part of Longinette in driving at an excessive rate of speed or too close to the center line proximately caused the collision.

There is evidence that Longinette was driving at an excessive speed on the icy viaduct and that Longinette drove within two feet of the center line. However, there is no substantial evidence to indicate that these acts would have caused a collision had Gage’s vehicle not crossed the center line into Longinette’s half of the roadway.

A driver of a motor vehicle, who is operating his vehicle in his half of the roadway, may assume that a driver of a vehicle approaching from the opposite direction will operate said vehicle in the other half of the roadway, until he knows, or by the use of the highest degree of care could know, that the approaching driver cannot or will not do so. See Annotation, 47 A.L. R.2d 6.

Plaintiff, as stated above, is bound to a theory of recovery based upon the fact that the collision occurred as Longinette drove in his half of the roadway and as Gage’s vehicle crossed into Longinette’s half of the roadway. In these circumstances, Longinette was under no duty to reduce his speed, or to swerve, or to take other evasive action, until he knew, or by the use of the highest degree of care, could have known, that there was a reasonable likelihood of collision. In this case, a submission under MAI No. 17.04 would have been proper.

The judgment is reversed and the cause is remanded for new trial.

All of the Judges concur.