author: DIXON, Chief Justice.

text:
    DR. SALSBURY’S LABORATORIES et al., Appellants, v. Pinson BELL et al., Appellees.
    No. 16430.
    Court of Civil Appeals of Texas. Dallas.
    Dec. 11, 1964.
    Rehearing Denied Jan. 15, 1965.

      Pannell, Dean, Panned & Kerry, Henry E. Kerry, Fort Worth, for appellants.
    Passman, Jones, Stewart, Andrews & Hunter and Ronald M. Holley, Dallas, for appellees.
   DIXON, Chief Justice.

Appellant Sam Davidson, one of two defendants in a suit filed in Kaufman County by Pinson Bell and Mrs. Gladys W. Reese, has appealed from an order overruling his plea of privilege whereby he sought to have the suit as to him transferred for trial to McLennan County, where he resides.

The other defendant is Dr. Salsbury’s Laboratories, an Iowa corporation, with its principal Texas office and place of business in Tarrant County, Texas. Salsbury’s Laboratories also filed a plea of privilege and after its plea was overruled, filed a cost bond for appeal. However, it has not further prosecuted its appeal, so the appeal will be dismissed. We shall proceed to a consideration of the appeal of Sam Davidson.

Bell and Reese are partners engaged in the business of raising and marketing turkeys on a large scale. In 1961 they had more than 42,000 turkeys on their farms.

Sam Davidson has been a salesman for Dr. Salsbury’s Laboratories for more than twenty-six years. His territory includes about thirty Texas counties. Bell and Reese had been acquainted with Davidson for several years.

Some time in 1961 Davidson called on Bell and Reese at their farms in'Kaufman County and told them of a new bacterin, known as Pasteurella Avicida Bacterin. Both Bell and Mrs. Reese testified that Davidson represented and warranted that the new bacterin would permanently immunize appellees’ turkeys from fowl cholera. By “permanently” appellees understood that Davidson meant that the bacterin would be effective for at least one year, since Bell and Reese did not keep any group of turkeys on their farins longer than a year.

Appellees ordered some of the new bac-terin and in 1962 inoculated about 21,000 turkeys with it. Not long thereafter an outbreak of cholera of epidemic proportions broke out among the inoculated birds with the result that 7,508 of them died of the disease.

In their controverting affidavit appellees allege that their cause of action accrued in Kaufman County against Dr. Salsbury’s Laboratories under Subdivisions 7, 9a, 23 and 27 of Art. 1995, Vernon’s Ann.Civ.St., and that Sam Davidson is a necessary party to that cause of action. Therefore appel-lees contend that venue in Kaufman County may be retained as to Davidson under Subdivision 29a of Art. 1995, V.A.C.S.

In his first point on appeal appellant Sam Davidson says that Subdivision 29a is not applicable because he! is- not a necessary party to appellees’ cause of action against Dr. Salsbury’s Laboratories. We agree with appellant.

Appellees seek a joint and several judgment against Dr. Salsbury’s Laboratories and Sam Davidson as joint tortfeasors. In Landers v. East Texas Salt Water Disposal Co. et al, 151 Tex. 251, 248 S.W.2d 731, 734, our Supreme Court held that where the tortious acts of two or more wrongdoers produce an indivisible injury (that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers) the injured party may proceed to recover judgment for all his damages against all of the wrongdoers in one suit or may proceed to judgment against any one separately. Thus it is recognized that no wrongdoer is a necessary party to a suit against the other. See also Riley v. Industrial Finance Service Co., 157 Tex. 306, 302 S.W.2d 652. The rule has been applied to plea of privilege cases involving Subdivision 29a. Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900; Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W. 2d 774; Breazeale v. Wyres, Tex.Civ.App., 290 S.W.2d 258; Solis v. Magnolia Petroleum Co., Tex.Civ.App., 307 S.W.2d 281; Coleman County Tel. Co-operative v. Cunningham, Tex.Civ.App., 318 S.W.2d 461; Liles v. Winters Ind. School Dist., Tex.Civ.App., 326 S.W.2d 182; Lewis Boggus Motors, Inc. v. Hill, et al, Tex.Civ.App., 340 S.W.2d 957; Muncy v. General Motors Corp., Tex.Civ.App., 357 S.W.2d 430, 437. Appellants’ first point is sustained.

In a counterpoint appellees say that even if Sam Davidson is not a necessary party under Subdivision 29a of our venue statute the trial court correctly overruled Davidson’s plea of privilege because venue properly lies in Kaufman County as to Davidson under Subdivisions 7 and 9a of the statute. These are the fraud and negligence exceptions. We agree with appel-lees as to Subdivision No. 7.

In their controverting plea appellees did not specifically name Subdivisions 7 and 9a as exceptions on which they relied. However, it was not necessary for them to do so if the facts alleged in their .affidavit and the proof offered at hearing were sufficient to bring their cause of action within the terms of the exceptions. See 59 Tex.Jur.2d, 631-636 and cases there ■cited.

In their controverting affidavit appellees expressly refer to their original petition and adopt as true all the allegations therein contained for all purposes as though fully copied in their affidavit. This was sufficient. See 59 Tex.Jur.2d, 637-640 and cases there cited.

In their petition Bell and Reese allege that Davidson represented to them that the new bacterin (1) was a permanent vaccine against fowl cholera, (2) was much superior to broth vaccine, (3) would provide a full year’s immunity from fowl cholera, and (4) would end appellees’ cholera problems and would do away with cholera. The petition further alleged that the said representations were false as was known or should have been known to Davidson.

Ordinarily an agent is not personally liable in an action on a contract made by him for the benefit of his principal. McCoy v. Wichita Falls Motor Co., Tex. Civ.App., 207 S.W. 332. However, if an agent commits a tort or wrong while engaged in the business of his principal he will be held personally liable for his tort, though his principal may also be liable. Whitson Co. v. Bluff Creek Oil Co., Tex.Civ.App., 278 S.W.2d 339, 347; 2 Tex.Jur. 2d 612; Tipps v. Ferguson, Tex.Civ.App., 263 S.W. 330; 2 Tex.Jur.2d 612, 614; 99 A.L.R. 408. It has been held that to hold an agent liable for his misrepresentations it is necessary to show not only that the representations were false, but that the agent knew them to be false, or that the representations were positive assertions which indicated the agent had actual knowledge of the truth, whereas he knew he had no such knowledge. Wimple v. Patterson, Tex.Civ.App., 117 S.W. 1034; Foix v. Moeller, Tex.Civ.App., 159 S.W., 1048; Barton v. Cox, Tex.Civ.App., 176 S.W. 793 (rev. on other grounds, Tex.Com.App., 212 S.W. 652) ; 2 Tex.Jur.2d 614; 26 Tex. Jur.2d 15.

The testimony of Bell and Mrs. Reese supports the allegations in their petition. Davidson denies that he made the representations. If he did make them he must have known they were false, or at ■least he must have made them as if he knew they were true. This is indicated by his testimony that fowl medicines are never guaranteed or warranted to be effective— sometimes they are effective, sometimes not. By overruling the plea of privilege the trial judge in effect found that Davidson did make the representations, thus establishing the venue facts necessary to maintain venue of the cause against Davidson in Kaufman County under Subdivision No. 7.

The appellees also alleged that Davidson was negligent in not apprising himself of the field experience and known liabilities and limitations of the new bacterin prior to representing it as a superior and permanent vaccines as he represented it to be. After reviewing the record we are of the opinion that appellees have not made out a case of negligence and proximate cause as required by Subdivision 9a.

We sustain appellees’ counterpoint as to Subdivision 7, of Art. 1995. In so doing it must be understood that our holding applies only to the implied findings of the trial judge as venue facts for purposes of passing on Davidson’s plea of privilege under Subdivision No. 7. Of course in a trial on the merits in order to recover judgment for damages, appellees must establish their allegations without regard to the venue facts found by the trial judge in the hearing on the plea of privilege.

Though we have held with regard to Subdivision 29a that Davidson was not a necessary party to appellees’ cause of action against Dr. Salsbury’s Laboratories, we have held that appellees did plead and prove venue facts as to Davidson himself under Subdivision 7. Therefore the judgment of the trial court is affirmed as to Davidson. The appeal of Dr. Salsbury’s Laboratories is dismissed.


source: Caselaw Access Project

author: BATEMAN, Justice.

license: Public Domain

text:
    Mike McKOOL, Appellant, v. RELIANCE INSURANCE COMPANY, Appellee.
    No. 16435.
    Court of Civil Appeals of Texas. Dallas.
    Jan. 8, 1965.
    Rehearing Denied Feb. 5, 1965.

      McKool & McKool, and Bill Jones, Dallas, for appellant.
    Thompson, Coe, Cousins & Irons and Franklin H. Perry, Dallas, for appellee.
   BATEMAN, Justice.

Appellant Mike McKool sued appellee Reliance Insurance Company for loss due to •chipping and cracking of ceramic tile affixed to the walls of his swimming pool, caused by freezing of the water in the pool. The ■policy sued on insured appellant against “all risks of physical loss” to his home ex■cept as excluded in that part of the policy -providing that the insurance does not cov•er, inter alia:

“i. Loss caused by inherent vice, wear and tear, deterioration; rust, rot, mould or other fungi; dampness of atmosphere, extremes of temperature; contamination; vermin, termites, moths or other insects ;
“k. Loss under Coverage A caused by settling, cracking, bulging, shrinkage, or expansion of foundations, walls, floors, ceilings, roof structures, walks, drives, curbs, fences, retaining walls or swimming pools; “Exclusions i, j, k, shall not apply to ensuing loss caused by collapse of building, water damage, or breakage of glass which constitutes a part of the building, provided such losses would otherwise be covered under this policy.” (Italics ours)

The case was submitted to the trial court on an agreed statement of the facts, and the sole question presented is whether the loss is excluded from the insurance coverage as having been caused by “extremes of temperature” mentioned in paragraph i. or by the “cracking” mentioned in paragraph k. The trial court held that it was so excluded, and we agree. Appellant’s theory is that the loss, having been caused by ice, which is solidified water, was therefore caused by “water damage,” thus making inapplicable the exclusions of loss by “extremes of temperature” and by “cracking”. In support of this theory appellant reminds us of certain well settled rules of construction of ambiguous insurance contracts. We consider these rules to be inapplicable because we find the terms of this contract to be clear and unambiguous and feel that it should be construed as other contracts and the words and phrases thereof taken in their ordinary meaning. Employers Mut. Cas. Co. of Des Moines, Iowa v. Nelson, Tex.Sup.Ct.1962, 361 S.W.2d 704, 709.

To find ambiguity in this policy one must close his eyes to the word “ensuing” which appears in the last paragraph quoted above, but which does not appear in either paragraph i. or paragraph k. Giving to the words used their ordinary meaning, we think it clearly appears therefrom that, although losses caused by extremes of temperature or cracking are not covered by the policy, all ensuing losses (meaning losses which follow or come afterwards as a consequence) caused by water damage are covered. In other words, the tile having cracked because of the extreme cold or ice, there could be no recovery therefor, but if water had entered through the cracks thus caused, the ensuing damage caused by the entry of the water would be recoverable. That would be a loss caused by water damage ensuing after the uninsured cracking of the tile.

The judgment was correct and is affirmed.

Affirmed.


author: PER CURIAM.

text:
    C. F. SPIKES et al., Appellants, v. Magus F. SMITH et al., Appellees.
    No. 132.
    Court of Civil Appeals of Texas. Corpus Christi.
    Jan. 14, 1965.
    John E. Lewis, of Adams, Graham, Lewis & Graham, Harlingen, for appellants.
    R. D. Cox, Jr., of Cox & Patterson, J. Perry Jones, of Jones & Flores, McAllen, for appellees.
   PER CURIAM.

After careful consideration of petitioners’ Motion for Reconsideration or Rehearing herein, and of respondents’ Answer to Motion for Reconsideration, we withdraw our opinion delivered in this cause on December 10, 1964, and substitute therefor the following:

Petitioners have filed with us a motion for leave to file a petition for writ of mandamus requiring the Hon. Magus F. Smith, Judge 'of the 93rd Judicial District of Texas, Hidalgo County, to set aside his order granting a new trial in Cause No. B— 22,505, Diaz, et al., v. Spikes, et al., in said court, and to reinstate the judgment for petitioners previously rendered- by him in said cause. It is petitioners’ contention that the court’s order reflects that the new trial was granted for 'the sole rea--son that the trial court found that a conflict existed between the jury’s answer to Special Issue No. 32 and the answer to Special Issue No. 36, whereas, so petitioners allege, no such conflict exists.

It is true that where a trial court refuses to enter judgment on a jury verdict, but sets such verdict aside and declares a new trial on the sole and exclusive ground, as shown in his order, that a material conflict exists in the answers of the jury to certain special issues, when no such conflict did exist, mandamus will lie to require the trial court to set aside such order for new trial, and to enter judgment on the verdict. Traywick et al., v. Goodrich, Judge, et al., Tex.Sup.Ct., 364 S.W.2d 190; Indemnity Insurance Co. of North America v. Craik, Judge, 162 Tex. 260, 346 S.W.2d 830; Gulf, C. & S. F. Ry. Co. v. Canty, Judge, 115 Tex. 537, 285 S. W. 296; Fredericksburg Hospital & Clinic v. Springall, Tex.Civ.App., 220 S.W.2d 692; White v. Munson, Judge, Tex.Civ.App., 162 S.W.2d 429.

In our opinion, these authorities, and others cited therein, do not apply to the present situation. The order of the trial court granting the new trial was entered within the time provided by law, and while that court still had jurisdiction of the cause. Such order did not limit the trial court’s decision to the exclusive ground of conflict of jury answers in the verdict. It states that the court heard evidence at the hearing on the amended motion for new trial (which motion contained allegations of jury misconduct), and proceeds to find that the Court “ * * * is of the opinion that there is a conflict between the Jury’s finding on Special Issue No. 32 of the Court’s Charge and the finding of the Jury on Special Issue No. 36 of the Court’s Charge or that the finding of the Jury on Special Issue No. 36 of the Court’s Charge established a business relation between the Defendants, Clarke Spikes, Jr., and Clarke Spikes, Sr., upon the occasion in question as a matter of law, and that a New Trial should be granted herein.” (Emphasis added by us). The trial court did not say that because of a conflict in the jury answers and solely for such reason he was granting a new trial. He found that the answer to No. 36 established the business relation mentioned. In addition he found generally that a new trial should be granted.

The trial judge, provided he acts within the time provided by law, has the power and authority to grant new trials after the entry of judgment, either on his own motion or on motion filed by a party to the suit, and it is not controlling to the exercise of his jurisdiction whether he does or does not state a reason, or whether the reason stated by him is right or wrong. Hunsinger v. Boyd, Judge, 119 Tex. 182, 26 S.W.2d 905; Union City Transfer v. Kenna, Judge, Tex.Civ.App., 210 S.W.2d 431; Angelina Casualty Company v. Fisher, Judge, Tex.Civ.App., 319 S.W.2d 387.

As stated by the Supreme Court in Johnson v. Court of Civil Appeals, 162 Tex. 613, 350 S.W.2d 330,

“It is the general rule, well established, that an appellate court will not review by mandamus an action of the trial court granting a new trial while it still has jurisdiction of the cause. The discretion and judgment of the trial court in granting a new trial cannot be controlled or directed by mandamus, (citing authorities).
“There are only two instances where any appellate court of this state has ever directed the trial judge to set aside its order granting motion for new trial. These instances are:
“(1) When the trial court’s order was wholly void as where it was not entered in the term in which the trial was had; and
“(2) Where the trial court has granted a new trial specifying in the written order the sole ground that the jury’s answers to special issues were conflicting.”

In view of the wording of the trial court’s order, we do not feel it necessary that we decide whether the answers to the named issues are in conflict.

The Motion for Leave to File Petition for Mandamus is denied, and Petitioners’ Motion for Reconsideration or Rehearing is overruled.


author: GREEN, Chief Justice.

text:
    TEXAS PLANTING SEED ASSOCIATION, Appellant, v. Bill HOOKER et al., Appellees.
    No. 100.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 31, 1964.
    John M. Lawrence III, Bryan, for appellant.
    W. T. McNeil, Edna, for appellees.
   GREEN, Chief Justice.

Appellees filed suit in the-district court of Jackson County, Texas, seeking to recover damages resulting from an alleged breach of warranty by appellant involving the sale of seed cotton. Their petition stated appellees to be residents of Jackson County, and appellant to be a Cooperative Association with offices at Bryan, Texas, but failed to contain any allegations as to where the cause of action, or any portion thereof, arose. After appellant filed its plea of privilege asking that the case be transferred to Brazos County, appellees filed their controverting affidavit, making their petition a part thereof, and for the first time alleged that the “cause of action, or part thereof, arose in Jackson County, Texas.” The trial court at the hearing heard testimony, denied appellant’s motion to sustain the plea of privilege which motion was based in part on the proposition that appellees’ petition failed to allege that their cause of action arose in whole or in part in Jackson County, and overruled the plea of privilege.

On this appeal appellees, to support the trial court’s ruling, rely solely on that portion of Subd. 23, Art. 1995, Vernon's Ann. Civ.St.Tex., providing that “Suits against a private corporation, association, or joint stock company may be brought in the county * * * in which the cause of action or part thereof arose.”

Appellant presents only one point, which is to the effect that the trial court erred in overruling the plea of privilege since the petition failed to contain any allegations showing that the cause of action, or part thereof, arose in Jackson County. No point is made by appellants questioning sufficiency of the evidence to support the trial court’s ruling.

We sustain appellant’s point of error. As stated above, appellee’s petition alleged no facts showing that any part of the cause of action occurred in Jackson County. The controverting affidavit has the office of more specifically alleging in detail the facts relied upon to support the venue issues made by the petition. However, this does not mean that where the petition alleges no venue facts, the necessary allegations can be supplied for the first time in the controverting affidavit

In Price v. Murrell R. Tripp & Co., Inc., Tex.Civ.App., 268 S.W.2d 702, plaintiff relied upon that portion of Subd. 23, Art. 1995,. which states that suits against a private corporation may be brought in the county in which plaintiff resided at the time the cause of action or part thereof arose, provided such corporation has an agency in such county. Though plaintiff alleged in his petition that he resides in such county, he did not say that he was a resident there when the cause of action, or part thereof, arose. He did make this latter allegation in his controverting affidavit. The Court of Civil Appeals, in upholding the ruling of the trial court sustaining the plea of privilege on this matter of pleading alone, stated:

“It seems to be settled that the controverting plea may not be looked to to supply this essential venue fact when it is omitted from the petition. It may not serve to enlarge the petition. Douglass v. Flintkote Co., Tex.Civ.App., 207 S.W.2d 635; Reader’s Wholesale Distributors, Inc., v. Trahan, Tex.Civ.App., 225 S.W.2d 459; Elliot Finance Co. v. Brown, Tex.Civ.App., 208 S.W.2d 622, and authorities there cited; Jones v. Caldwell, Tex.Civ.App., 42 S.W.2d 1052.”

In further support of the above mentioned well established rule of law that the material issues of venue must be common to the petition and the controverting affidavit, we mention in addition to the authorities cited above the following: Witting v. Towns, Tex.Civ.App., 265 S.W. 410; Casebolt v. Waldron, Tex.Civ.App., 160 S.W.2d 309; Hargrove v. Koepke, Tex.Civ.App., 210 S.W.2d 434; M. L. Witter Mfg. Corp. v. Kinetrol Co., Inc., Tex.Civ.App., 342 S.W.2d 809.

Appellees made no request in the district court to amend their petition so as to include this essential venue fact. They elected to stand on their pleadings. Under the authorities cited above, we hold that the trial court erred in overruling the plea of privilege.

We feel that the ends of justice will be better served if the case is remanded so that the parties are given an opportunity to try the issues under properly drawn amended pleadings. Buchanan v. Jean, Sup. Ct., 172 S.W.2d 688; Red Arrow Freight Lines v. Cagle, Tex.Civ.App., 206 S.W.2d 1019; Sparks v. West, Tex.Civ.App., 41 S.W.2d 301; Tex.Jur.2d, Vol. 60, Venue, Sec. 248, pp. 169, et seq.

Reversed and remanded.


author: McDONALD, Chief Justice.

text:
    Tom STREET et al., Appellants, v. SINCLAIR PIPELINE COMPANY, Appellee.
    No. 4299.
    Court of Civil Appeals of Texas. Waco.
    Jan. 14, 1965.
    Beard, Kultgen & Beard, Waco, for appellants.
    John F. Sheehy, Waco, for appellee.
   McDONALD, Chief Justice.

This is a suit for damages occasioned by the refusal of defendant to permit plaintiffs to mine gravel from a right-of-way strip defendant holds an easement to across plaintiffs’ land. Plaintiffs Street, et al, own a 15 acre tract in fee simple, subject to a right-of-way easement for a pipeline across such tract, owned by defendant Sinclair. Plaintiffs mined some of the gravel on the tract, but have been met by a demand by defendant to remain a certain distance from the pipeline, and to maintain a certain slope supporting such pipeline. Plaintiffs sought mandatory injunction against defendant, requiring a removal of the pipeline to a location on the property, where the gravel was already mined, or in the alternative for damages for the value of gravel located under and around defendant’s pipeline, and which cannot be mined, unless the line be moved. There was no allegation or evidence of any negligence in the operation of the pipeline by Sinclair.

Trial was before the Court, without a jury, which rendered judgment that plaintiffs take nothing.

Plaintiffs appeal, contending that the Trial Court erred in holding defendant pipeline company not liable to pay plaintiffs the reasonable market value of the gravel underneath the pipeline, because the right-of-way deed provided the pipeline would pay to plaintiff “any damages which may arise from grantee’s operations in * * * operating * * * said pipeline.”

The right-of-way deed or easement provides :

“ * * * Grantor does hereby grant, bargain, sell and convey unto said Sinclair Refining Company, hereinafter called Grantee, the right and easement to lay, maintain, inspect, operate, alter, repair, replace, remove, and relay a pipeline for the transportation of crude petroleum, oil, gas etc. * * * (across the described properties of Grantor). * * * Grantor shall have the right to fully use and enjoy said premises except as the same may be necessary for the purposes herein granted unto said Grantee * * *. Grantee hereby agrees to pay any damages which may arise from Grantee’s operations in laying, maintaining, operating, repairing, replacing, or removing said pipeline * * ¡M*

The Trial Court filed Findings of Fact and Conclusions of Law here summarized:

FINDINGS OF FACT
1) Plaintiffs own the land over which the easement rights were granted; and defendant owns the easement rights across such land.
2) Plaintiffs have removed all gravel from the land, except under the portion of such land lying under the land included in Sinclair’s easement. There is gravel under such easement in sufficient quantity to justify the mining thereof.
3) Sinclair has exercised the rights conferred by the easement with due care and without negligence.
CONCLUSIONS OF LAW
1) Plaintiffs have no right to remove the gravel from the portion of the land servient to the easement of Sinclair.
2) The location of the easement may not be changed by the easement owner or the owner of the servient estate, without the consent of the owner of the easement and the owner of the servi-ent estate.
3) Plaintiffs are not entitled to mandatory injunction requiring Sinclair to relocate its pipeline.
4) Plaintiffs are not entitled to recover from Sinclair for the value of the gravel under such pipeline easement.

The case turns on the construction of the easement.

Sinclair’s easement is the dominant estate and Sinclair has the right to the free and undisturbed use of its property for the purposes of the easement. Calcasieu Lumber Co. v. Harris, 77 Tex. 18, 13 S.W. 453. Moreover, the owners’ right to remove dirt or gravel is subservient to the estate ■granted by the easement. Hays v. State, CCA (n. r. e.), 342 S.W.2d 167; Wesco Materials Corp. v. Dallas Co., CCA (n. r. e.) 320 S.W.2d 243; Sheppard v. City & County of Dallas Levee Imp. Dist., CCA (n. w. h.), 112 S.W.2d 253. See also: Warren Pet. Corp. v. Monzingo, 157 Tex. 479, 304 S.W.2d 362, 65 A.L.R.2d 1352; Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863; Gen. Crude Oil Co. v. Aiken, 162 Tex. 104, 344 S.W.2d 668; Kenny v. Texas Gulf Sulphur Co., CCA, Er. Ref., 351 S.W.2d 612.

Plaintiffs therefore have no right to require defendant to remove its pipeline to another location where the gravel was already mined. Plaintiffs, however, contend that the language in the easement, “Grantee thereby agrees to pay any damages which may arise from Grantee’s operations in * * * operating * * * said pipeline”, entitles plaintiffs to the value of the gravel which cannot be mined because of the pipeline. Plaintiffs cite Big Three Welding Equipment Co. v. Crutcher, 149 Tex. 204, 229 S.W.2d 600, as authority that the word “operating” means “to put into, or to continue in, operation or activity; to manage; to conduct; to carry out or through; to work; as to operate a machine or motor vehicle”; and assert that defendant agreed to pay damages which may arise from its operating the pipeline; that plaintiffs’ damages are caused by defendant’s operation of the pipeline; and that defendant owes plaintiffs for the gravel which cannot be mined.

It is not the operation of the pipeline across plaintiffs’ property which has produced plaintiffs’ damages; it is the presence or existence of the pipeline itself, which has prevented plaintiffs from mining their gravel. Defendant paid for the easement, and plaintiffs’ estate is subservient to defendant’s right to such easement, and so much of the land as reasonably necessary to effectuate the purposes of the easement.

Plaintiffs’ contentions are overruled and the judgment is affirmed.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Woodrow HARPER, Defendant-Appellant.
    No. 50760.
    Supreme Court of Missouri, Division No. 2.
    Feb. 8, 1965.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Edward A. Glenn, Sp. Asst. Atty. Gen., Louisiana, for respondent.
    Briney, Welborn, Spain, Bloomfield, for appellant.
   BARRETT, Commissioner.

Woodrow Harper has been found guilty of an assault with intent to kill and sentenced to six months’ imprisonment and a fine of $500. V.A.M.S. § 559.190. The information charged that Woodrow made an assault upon Calvin Davis with a .22 caliber pistol. State v. Harris, 209 Mo. 423, 108 S.W. 28.

The circumstances were that about 6:30 on Saturday, December 29, 1962, Calvin Davis, age 26, and his friend J. C. Hawkins went to Curly’s Tavern on Highway 108 in Dunklin County and had “one beer.” Woodrow Harper and his son Phil were “over in the comer” drinking and, according to Calvin, Woodrow was drunk. Calvin and J. C. left Curly’s Tavern but returned again about 8 o’clock and Calvin resumed his beer drinking. By that time Phil Harper and Calvin’s friend and neighbor Jerry Green, 5 feet 2 inches and weight 105 pounds, were “arguing.” When Phil and Jerry started walking to the door Calvin intervened and said, “Phil, why don’t you leave that boy alone? He’s a lot smaller than you are, and it don’t take very much for you to hurt him.” One word led to another and finally Phil challenged Calvin, “Well, let’s go outside and settle it right now.”

And so Calvin and Phil went outside and “squared off.” As they fought Phil grabbed Cal around the waist and they fell to the ground, Phil on top of Calvin, and as they fell with Phil’s “fingers in my eyes,” Cal was struggling to get Phil off “because he was hurting” and as he pulled Phil “over this way” the appellant Woodrow Harper, father of Phil, came out the door “hollering ‘Get away, get away, just let me kill him.’ ” Woodrow kicked Cal in the jaw and as he turned his head kicked him again knocking out a tooth, and as Cal continued his struggle with Phil, “still trying to get him off of me,” and “got him over to one side, and I had my leg up here kind of around like that” Woodrow fired his pistol. The bullet entered Calvin’s hip and ranged down into his thigh. At this point Cal said, “I’ve done had enough, Phil, you all have done worked me over.” Nevertheless Phil hit him again causing him to stumble and fall. Some of the twelve or fifteen bystanders separated the combatants and Phil came over to the Hawkins’ truck and offered to buy a beer but Cal said, “No, I don’t feel like we should buy a beer now, I’ve got to go to the Dock because I’ve been shot.”

The defendant offered no testimony and of course the briefly narrated evidence is sufficient to support the charge of assault with intent to kill. State v. Lane, Mo., 371 S.W.2d 261. The appellant contends, however, that the court erred in permitting the prosecuting attorney to make the argument, as he states it in his brief, “that defendant-appellant should not have had a gun there anyhow; that he should have known the danger of firearms; and that the jury should not let people run around like that.” The assignment briefed and argued is that the argument “was calculated to have the jury convict' the defendant for a crime with which he was not charged.” In the first place the appellant’s statement of his point takes the prosecutor’s argument out of context. In the second place there was no request for specific relief, it is doubtful that there was even an objection. Counsel merely made a statement —“Your Honor, he’s not charged with any crime of that nature at all. This argument is calculated for this jury to convict him of something he’s not even charged with.” But in context the prosecutor’s statement is not subject to the construction that he in fact charged the appellant with another and separate crime as in State v. Isaacs, Mo., 187 S.W. 21, where state’s counsel said, “[I]f defendant had not been violating the law by carrying a revolver, Campbell would not have been killed.” It does not appear that the appellant’s weapon was offered in evidence although the manner of its use was described. The fact of his carrying the weapon may not have deprived Woodrow of any defense he may have had. IJevertheless upon a charge of felonious ass'ault, particularly upon the appellant’s intention in employing a weapon, the gun is admissible in evidence (State v. Chevlin, Mo., 284 S.W. 2d 563, 566 ; 6 C.J.S. Assault and Battery § 119, p. 985) and of course if relevant is not to be excluded from all consideration notwithstanding it may incidentally show the appellant to be guilty of some other offense. 6 Am.Jur.2d (Assault & Battery) § 101, p. 88. And if the gun or the circumstances of its use are relevant and in evidence it would seem to follow as a matter of course, absent a direct imputation o'f some separate and wholly disconnected offense, that it was not prejudicially erroneous for the prosecuting attorney to employ the fact in his argument to the jury.

The court gave an instruction on the subject of Woodrow’s right to come to the defense of his son Phil. The other assignment of error briefed and argued by his counsel is that this instruction is manifestly erroneous because the second paragraph contains the language “you ought to be satisfied that Defendant’s apprehension was reasonable.” But upon this particular record it is not necessary to consider whether the italicized word in this instruction unfairly misplaced the burden of proof. See and compare however State v. Demaree, Mo., 362 S.W.2d 500; State v. Swinburne, Mo., 324 S.W.2d 746; State v. Adams, Mo., 355 S.W.2d 21. It is assumed if there is evidence of the fact that Woodrow in assaulting Calvin acted in defense of his son Phil that the court was under a duty to instruct on the subject (State v. Turner, 246 Mo. 598, 152 S.W. 313), but “(t)he amenability to the law of one who, finding another engaged in an affray, goes to his aid and takes part in the conflict depends upon his own acts and intent, and not upon the intent which actuates the person to whose aid he goes, he having no knowledge thereof.” 26 Am.Jur. (Homicide) § 158, pp. 265-266. Without pointing to specific circumstances or indicating permissible inferences it. is obvious from even a casual résumé of the record that there was no evidence to support the finding, hypothesized in the instruction, of Woodrow’s innocence “on the ground of necessary defense of another.” State v. Rose, Mo., 346 S.W.2d 54, 56-57. In view of these rules and circumstances and in the absence of plain demonstration that the appellant was injured by this favorable and unsupported submission any error in the instruction must be deemed harmless. State v. Wynne, 353 Mo. 276, 282, 182 S.W.2d 294, 296.

Accordingly the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Richard PAPIN, Appellant.
    No. 50751.
    Supreme Court of Missouri, Division No. 2.
    Feb. 8, 1965.

      Thomas F. Eagleton, Atty. Gen., Gary A. Tatlow, Asst. Atty. Gen., Jefferson City, for respondent.
    William C. Maier, St. Louis, for appellant.
   FINCH, Judge.

Defendant was charged with burglary in the second degree and stealing, and one prior felony conviction. He was found guilty of burglary in the second degree, but acquitted of stealing. The court found that defendant had been convicted of one prior felony (the essential facts with reference thereto were stipulated) and fixed defendant’s punishment at imprisonment in the state penitentiary for a term of five years. A timely motion for new trial was filed and overruled, and defendant was permitted to appeal as a poor person.

Defendant was represented by counsel throughout the proceedings in the trial court. Counsel filed a motion for new trial and the notice of appeal to this court, but no brief has been filed with this court on behalf of defendant. We will consider all matters properly raised in defendant’s motion for new trial and portions of the transcript of the record set forth in Supreme Court Rules 28.02 and 28.08, V.A.M.R.; State v. Jackson, Mo., 369 S.W.2d 199, 200 [1].

The State’s evidence will support the following statement of facts: Eugene Lee, his wife and child left their residence at 1225 Monroe Street, St. Louis, at about 6:30 a. m., on November 19, 1963. The doors and windows of the house, including basement windows, were locked, and a screen which covered a front basement window was intact. Shortly before 1:00 p. m., a 13-year-old school boy, Michael Barylski, walked past the Lee home enroute back to school. He had known the defendant for several months, and observed him sitting on the ground by the front basement window of the Lee house ripping the basement window screen. They spoke to each other, defendant asking Barylski how he was doing in school. Barylski then went on to school, but came back by the Lee residence after school at approximately 3 :35 p. m. At that time he observed the screen ripped the rest of the way off, and the basement window was open. The window was 3 to 4 feet wide and about 2 feet high. He went on home, but returned around 4:30 p. m., and reported to Eugene Lee what he had observed. Lee then called the police before entering the house. When Lee and the police entered the house, they found that the door separating the basement from the rest of the house had been forced open from the basement side. Lee’s watch, his wife’s watch, a collection of Mercury Head dimes, and money from the little boy’s piggy bank had been taken from a dresser drawer in the bedroom. Defendant had done some work around the Lee house previously, and for a time fed a dog belonging to Lee, and was familiar with the Lee house. Defendant was arrested December 17, 1963. None of the items taken from the Lee home on November 19, 1963, were recovered.

Evidence for the defendant consisted of the testimony of defendant himself and his mother, Mrs. Nettie Lockhart. Both of them testified that at about 9:00 a. m., on November 19, 1963, defendant came to his mother’s residence at 4616 VonPhul in North St. Louis, and that between that time and around 3:00 p. m., they visited and drank in various taverns which they named. Defendant, according to their testimony, left his mother around 3:00 p. m. In addition, defendant denied seeing Baryl-ski at the Lee house on November 19, and denied tearing off the screen or entering the Lee house on that date.

The first point raised in defendant’s motion for new trial is that the court erred in sustaining objections to questions asked of witness Eugene Lee “to determine his motive for his conduct in the prosecution of the case of the State of Missouri vs Defendant, Richard Papin.” To consider this question, it will be best to set out verbatim the questions, answers, rulings and objections as shown by the transcript, as follows :

“QUESTIONS BY MR. MAIER:
“Q. Mr. Lee, do you have any personal reason for wanting to see the defendant in this case, Richard Papin, sent to jail?
“A. Any personal reasons ?
• “Q. Yes.
“A. I don’t quite understand what you mean by ‘personal’.
“Q. Any reason that is personal that you have for wanting to see the defendant sent to jail?
“MR. RYAN: I would like him to define ‘personal’, if he will.
“THE WITNESS : I don’t quite understand — you mean do I have anything personally against him?
“Q. (By Mr. Maier) Yes.
“A. Not personally — I don’t consider it personally, but — well, let’s put it this way: If I think you did anything wrong — I mean, to take anything personally from this here —I have nothing against you, I mean' — -
“Q. (Interrupting) Well, let’s put it this way: By personally, I mean any desires about this thing — do you have any desires about this man being sent to jail—
“A. (Interrupting) Are you asking me if I like the man personally?
“Q. No, I am asking this simply: Do you want him to go to jail?
“THE COURT: That is not a question for him to answer. If you make an objection I will sustain the objection, Mr. Ryan. That is for the State of Missouri to determine.
“MR. RYAN: I was going to object to that, your Honor.
“THE COURT: Proceed.
“(Thereupon the following occurred out of the hearing of the jury:
“MR. MAIER: It is proper to inquire into the motives—
“THE COURT: No, he has no right to say he doesn’t want to prosecute this man; the State of Missouri is prosecuting this case.
"MR. MAIER: The State of Missouri is prosecuting this man; there is no question about that. I can inquire into any relationship relating to his motivation — ■
“MR. RYAN: (Interrupting) Y°u are not asking him that.
“THE COURT: You were not asking him that. You are asking him if he wants him to go to jail; that is not in his province, at all. I have sustained the obj ection. Proceed.”

In State v. Pigques, Mo., 310 S.W.2d 942, this court held that the trial court unduly limited defendant in his effort to show animus of the prosecuting witness. The opinion points out that defendant Pig-ques desired to show that there had been violent arguments between the prosecuting witness and defendant over financial matters, that a suit was pending between the two of them for money, and that there had been an investigation by the Wage and Hour Division in which defendant had made a statement which affected the relationship between the two men. None of these showings were permitted, and this court held this was error. By way of contrast, defendant Papin was permitted considerable latitude in his attempt to show animus on the part of Eugene Lee, the prosecuting witness. Michael Barylski was asked if he knew about arguments!or bad blood between Lee and the defendant. Barylski testified that Lee told him that on one occasion he got a little mad at defendant. Eugene Lee himself was asked whether he ever had said he would shoot defendant with a shotgun if he saw him around the house, or that he was looking for defendant with his shotgun. He was also asked whether they had had arguments over money. Defendant himself was permitted to testify that he had had numerous arguments with Lee. Defendant went on to testify that on October 16 or 17, 1963, approximately a month before the offense charged, defendant went to Lee and asked him for a “few bucks” on account of work done, but Lee replied the defendant wasn’t worth that to him, but he would give defendant six beers. Defendant testified that he stated to Lee, “If you don’t give me some money, you know my record, I am liable to break into your house.” Lee laughed it off, but produced the six beers. Defendant went on to testify that the next day, using a key to the Lee house which had been given to him to enable him to feed a dog for Lee, he entered the Lee house and took two watches and a .22 pistol. The following day defendant was arrested. He had sold one watch and the .22 pistol, but had the other watch in his possession. The one watch which was sold was recovered, and both watches were returned to Lee, who declined to prosecute. All of this was developed by defendant, presumably to show animus on the part of Lee against this defendant.

In the light of the latitude allowed defendant in developing the relationship and dealings between defendant and Lee, it is the view of this court that the trial court did not commit error in sustaining the objection of which defendant complains. Actually, in that series of questions, Lee was asked about whether he had anything personal against defendant, and he answered that he did not. He went on to say that if he felt someone had done something wrong, that did not mean that he had anything personal against him. Lee then inquired of defendant’s counsel, “Are you asking me if I like the man personally?” and counsel replied, “No, I am asking this, simply: Do you want him to go to jail?” As .trial counsel pointed out, this question involved the proposition of whether the man should be prosecuted, which is for the State rather than the prosecuting witness to determine. The trial court has some discretion in limiting the examination on matters showing the interest of the witness. State v. McNew, Mo., 353 S.W. 2d 571, 577 [7]. That discretion was not abused here.

The second assignment. in the motion for' new trial is based on the proposition that the State’s evidence failed to show that the inner barrier, a basement window, was breached, and hence defendant’s motion for judgment of acquittal at the close of the State’s case should have been sustained. This motion for judgment of acquittal was overruled, and defendant then testified in his own behalf, and also used his mother as a witness. It is well established that the introduction of evidence by the defendant waived any error in overruling the motion at the close of the State’s case. State v. Anderson, Mo., 375 S.W.2d 116, 121 [15]; State v. Slade, Mo., 338 S.W.2d 802, 805 [1].

Defendant’s third assignment is that his motion for judgment of acquittal at the close of the whole case should have been sustained for the reason that the evidence failed to show that the inner barrier, the basement window, had been breached. In testing the sufficiency of the evidence on this motion, the facts in evidence and the favorable inferences reasonably to be drawn therefrom must be considered in the light most favorable to the State, and evidence and inferences to the contrary are rejected. State v. Watson, Mo., 350 S.W. 2d 763, 766 [1]; State v. Slade, Mo., 338 S.W.2d 802, 805 [3].

The case of State v. Pigques, Mo., 310 S.W.2d 942, 945 [6], does hold that where a defendant broke open an outer wooden door with intent to steal chickens in the building, but ran away before he breached the inner wire-mesh door which barred his way to the chickens, no burglary was committed, and the evidence would sustain the submission only of an attempt to commit burglary in the second degree. However, that case is not applicable here. Michael Barylski testified that he saw defendant just before 1:00 p. m., and he was tearing the screen which covered the basement window. When Barylski came back by at about 3 :35 p. m., the screen was all pulled off and the basement window was open. Eugene Lee also saw the torn screen and open window, and he testified that the window had been closed and locked when he left the house that morning. He further testified that all other windows and doors had been locked, and that the basement door leading into the house itself had been forced open from the basement side, and that articles were missing from the house. Defendant was shown to be very familiar with the inside of the Lee house. This evidence was sufficient to show that the inner barrier was breached and that the house was entered via the basement window and by forcing open the door between the basement and the house proper, and therefore the motion properly was overruled.

The fourth and final assignment in the motion for new trial is that the trial court erred in failing to instruct the jury that they must find that defendant breached not only the outer barrier, the screen, but also the inner barrier, the closed window. An examination of Instruction No. 2 given by the court shows that it hypothesized the facts which the jury were to find in order to convict defendant of burglary in the second degree, and in that instruction the jury was told that it must find that “defendant did wrongfully, forcibly, feloniously, and burglariously break and enter a certain dwelling house.” The instruction went on subsequently to tell the jury that before it could convict defendant of burglary in the second degree it “must find from the evidence, beyond a reasonable doubt, that he both broke and entered said dwelling house and building.” This instruction contained a requirement of a finding by the jury of all the essential elements of burglary in the second degree as set out by Sec. 560.045, RSMo 1959, V.A.M.S. It did not use the terms outer barrier and inner barrier, but it clearly told the jury that it must find that defendant both broke and entered the building. The terms “break” and “enter” are not technical words, but are' words of common usage which a jury could understand. A substantially similar instruction was approved by this court in State v. Jackson, Mo., 338 S.W.2d 848, 851 [5], and in State v. Smith, Mo., 342 S.W.2d 940, 942 [6], If defendant believed that further explanation of the terms “break” and “enter” were required, he should have requested1 clarification or submitted an additional instruction thereon. State v. Shriver, Mo., 275 S.W.2d 304, 309, where this court said: “The word ‘accident’ is not a technical word, but is one in common use and generally understood by everyone. If ¡further explanation of the meaning of the term was considered to be necessary, defendant should have asked for clarification.” See also State v. Raines, 339 Mo. 884, 98 S.W. 2d 580, 585 [9]. It would seem to be clear that a jury would understand what was meant when the instruction told them twice that they must find that the defendant had to both “break” and “enter” the dwelling house of Lee before they could convict.

We have examined the record as required by our Rules 28.02 and 28.08, V.A. M.R., and find it sufficient with respect to those matters therein specified.

The judgment is affirmed.

All of the Judges concur.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Donald Eugene DURHAM, Appellant.
    No. 50797.
    Supreme Court of Missouri, Division No. 2.
    Feb. 8, 1965.

      Thomas F. Eagleton, Atty. Gen., Thomas E. Eichhorst, Asst. Atty. Gen., Jefferson City, for respondent.
    Weldon W. Moore, Rolla, for appellant.
   EAGER, Judge.

Defendant was convicted of burglary and stealing in the Circuit Court of Phelps County; upon a finding of prior felonies he was sentenced to a term of eight years for the burglary and four years for the stealing, the terms to run consecutively. Upon appeal to this Court the judgment was affirmed. 367 S.W.2d 619. The facts and circumstances surrounding the crime are set out in detail in that opinion. The present appeal is from an order of the Circuit Court denying a motion to vacate that judgment under our Rule 27.26, V.A.M.R., no evidence thereon having been heard. The defendant is represented here by counsel who has filed a brief and argued the case orally. Only one point is raised on this appeal, namely, that defendant’s rights under the Fourth Amendment to the United States Constitution were violated by an illegal search of his automobile and the seizure of property therefrom, and that the trial court erred in overruling his motion to suppress that evidence. The facts are stated fully in our opinion on the original appeal, but we recite them very briefly here. Within less than twelve hours after the burglary in question, and on March 28, 1962, two Illinois Highway Patrolmen in a community near East St. Louis noticed a 1954 Plymouth being driven with its rear license plate partially obscured; they stopped the car and Trooper Morgan told the driver, one Hacker, that he was under arrest for improperly displaying the license plate. The officer at that time saw through the car window a new radio with a price-mark on it, and a display carton of new screwdrivers. These were on the back seat and, according to the officer, were out in the open. The driver showed his license and got out of the car; the officer asked him to open the trunk which he did. Nothing of any consequence was found there. The officer then asked the other two men, defendant and one Willis, to come to the rear of the car, so that the other officer could watch them. At that time the first officer searched the car, removing a blanket from a large “hump” of material on the floorboards behind the driver, the top of which was about on a level with the rear seat, and he also looked under the seat for “weapons.” Under the blanket he found various power saws, drills, etc. These were the articles which defendant sought to exclude from evidence; they were all shown to be items taken in the burglary of the Newberg Lumber Company at New-berg, Missouri, early that same morning. When Hacker opened the door of the car, a corner of the pile of tools under the blanket was exposed to the officer’s view. Defendant, sitting on the right of the front seat, had shown the officer the registration of the car and had told him that he (the defendant) was the owner; this occurred after the arrest of blacker but before the search of the car.

The officers had Hacker drive this car and the occupants to the police station, following theirs. On the way there, they saw defendant throw out some paper or “refuse”; at that time they stopped and arrested him for “littering” the highway. At the station the tools and radio were removed and marked; they were later turned over to Missouri officers. The testimony of defendant and his companions did not differ very materially from the foregoing, except that two of them testified that the radio was also covered, and one testified that Hacker had not yet been arrested when the car was searched. Defendant testified that he told the officer at the scene that he had bought the “stuff,” that the officer asked him if he wanted to go to the station to check it, and that he said “sure”; also, that he was placed under some midemeanor charge during the brief investigation. It is obvious that the Circuit Court believed and relied upon the testimony of the Illinois Highway Patrolman; its ruling implied a finding that the search was reasonable and that it was incidental to a lawful arrest. We take judicial notice of our prior proceedings, including the transcript in defendant’s original appeal. State v. Johnstone, Mo., 350 S.W.2d 774, cert. denied Johnstone v. Nash, 82 S.Ct. 1149, 369 U.S. 877, 8 L.Ed. 2d 280. This Court affirmed the trial court’s ruling upon this point, as specifically raised in defendant’s motion for new trial; cer-tiorari to the United States Supreme Court was denied. 375 U.S. 861, 84 S.Ct. 130, 11 L.Ed.2d 89. Our Court, at 367 S.W.2d, loc. cit. 623, discussed the Illinois law governing searches and seizures, and held that the search here was valid since it was made in connection with and incidental to the lawful arrest of the operator of the automobile; also, that such a search may be made when reasonably necessary to insure the safety of the arresting officer, as the Trooper here said was the case. We note again that the officer testified that the search of the car was only made after the arrest of the operator. The validity of this search and seizure has now been adjudicated and the order overruling the motion to vacate will be affirmed for all the reasons stated in our prior opinion. Moreover, this is not such a matter as will support a collateral attack. State v. Worley, Mo., 383 S.W.2d 529; State v. Howe, Mo., 364 S.W. 2d 546, cert. denied 83 S.Ct. 1552, 373 U.S. 943, 10 L.Ed.2d 698.

Counsel states in his brief that the testimony of the Highway Patrolman was so “intrinsically improbable as to constitute no evidence at all * * The trial court did not so regard it, nor do we; but, be that as it may, the question has been fully and finally adjudicated against the defendant, and it may not be reopened now. It is unnecessary to discuss the authorities cited by counsel, and dealing with other facts and circumstances, when our identical question has thus been adjudicated.

We appreciate the position here of appointed counsel who has briefed, as well as might be done under the circumstances, the only point made by the defendant in his motion.

The order of the trial court is affirmed.

All of the Judges concur.


author: WELBORN, Commissioner.

text:
    Alvy S. ACTON, Administrator of the Estate of Baby Trumbo, deceased, Appellant, v. Della S. SHIELDS, Administratrix of the Estate of Merle Lawrence Shields, deceased, and Herbert Leslie Wohlgemuth, Jr., Respondents.
    No. 50523.
    Supreme Court of Missouri, Division No. 1.
    Jan. 11, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied Feb. 8, 1965.

      Spencer, Hines & Petri, Columbia, Jack C. Jones, Carrollton, for plaintiff-appellant.
    Christian Stipp, Carrollton, and Skelton & Bradley, Newton R. Bradley, Lexington, for respondent Shields.
    Somerville & Cleaveland, Ronald L. Som-erville, Chillicothe, for respondent Wohlge-muth.
   WELBORN, Commissioner.

This action was brought by the administrator of the estate of Baby Trumbo seeking, on behalf of the persons entitled to the proceeds thereof under the laws of descent of the State of Missouri, $25,000 damages for the alleged wrongful death of Baby Trumbo, a child en ventre sai mere. Defendants’ motions to dismiss on the grounds that the petition failed to state a cause of action were sustained by the trial court. This appeal followed. We have jurisdiction by reason of the amount of damages sought.

The petition alleged that the plaintiff was the administrator of the estate of1 Baby Trumbo; that Baby Trumbo “was a child en ventre sa mere and was a person in being whose existence is recognized by law”; that Baby Trumbo died on October 13, 1962, from injuries sustained on that date: when an automobile, in which the plaintiff’s decedent’s pregnant mother, Carolynn Kaye Acton Trumbo, was a passenger, and which was operated by her husband, Billie Dean Trumbo, on U.S. Highway 65 in Carroll County, Missouri, collided with an automobile driven by Merle Lawrence Shields. The petition charged that Shields and defendant Herbert Leslie Wohlgemuth, were guilty of negligence evidencing such a reckless disregard for the rights of others as to indicate willful and wanton misconduct. Essentially Shields and Wohlgemuth were charged with engaging in a racing contest with one another.

The petition alleged that Baby Trumbo left surviving no spouse or minor child and that plaintiff brought the action “for the benefit of the persons entitled to the proceeds thereof under the laws of descent of the state of Missouri, namely Alyy S. Acton, grandfather; Bessie J. Acton, grandmother; Marilynn Faye Acton, aunt; Anna Belle Trumbo, grandmother; Bill Trumbo, grandfather; Jerry Wayne Trumbo, uncle; Audrey Gail Trumbo, aunt; Ruby Jane Trumbo, aunt; Johnny Ray Trumbo, uncle; and Dianna Kaye Trumbo, aunt.”

The petition further alleged that the beneficiaries had been “deprived of the decedent’s services, society, companionship and other contribution to their well-being.” The petition asked for compensatory damages and additional damages by reason of the aggravating circumstances attending the death of plaintiff’s decedent, all in the sum of $25,000.00.

The defendants filed motions to dismiss plaintiff’s petition, asserting that on numerous grounds the petition failed to state a cause of action. The trial court sustained the motions and by its memorandum in connection with its order stated that the petition alleged no more than that Baby Trumbo was deceased and did not allege that at the time of the alleged death the unborn child was viable, alleging only that said baby was en ventre sa mere; “that death of unborn child through wrongful act of another cannot, in law be the basis of suit for damages, under rule pronounced in Vitale v. Biando, Mo.App., 52 S.W.2d 24.”

On this appeal appellant contends that the petition contained the elements of a cause of action under the wrongful death statute and that Baby Trumbo was a person within the meaning of that act. Section 537.080, RSMo 1959, V.A.M.S. The appellant asserts that proper and logical extension of the doctrine of Steggall v. Morris, 363 Mo. 1224, 258 S.W.2d 577, 581, in which the court en banc held, overruling Buel v. United Rys. Co., 248 Mo. 126, 154 S.W. 71, 45 L.R.A.,N.S., 625, to the contrary, that an action by parents would lie for wrongful death resulting from prenatal injuries to a viable infant subsequently born alive, would admit of the action in this case under the Missouri wrongful death act.

Respondents would support the judgment below on two bases. The first is that the petition failed to allege facts showing that the persons for whose benefit suit was brought suffered pecuniary loss by reason of the death of Baby Trumbo. The second is that the petition did not allege facts showing that Baby Trumbo was a “person” within the meaning of the Missouri wrongful death statute.

The Missouri wrongful death act, Section 537.080, authorizes recovery for wrongful death by or on behalf of specified beneficiaries as follows: (1) By the husband or wife of the deceased; or (2) If there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased, whether such minor child or children of the deceased be the natural born or adopted child or children; or (3) If such deceased be a minor and unmarried, whether such deceased be a natural born or adopted child, then by the father and mother; or (4) If there be no husband, wife, minor child or minor children, natural born or adopted as herein indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and “the amount recovered shall be distributed according to the laws of descent.”

The petition in this case alleges that Baby Trumbo left surviving no spouse or minor child, natural or adopted. However, it does not affirmatively allege that Baby Trumbo left no mother or father surviving. That conclusion may be drawn from the allegation that the persons entitled to the proceeds for any recovery for the death of Baby Trumbo are grandparents, aunts and uncles. See Section 474.010(2) (c), RSMo 1959, V.A.M.S. Although the right of an administrator to sue should be affirmatively shown in the petition, we will not rule the petition in this case defective solely on that ground, particularly in view of the fact that it appears that the plaintiff offered to amend his petition to allege that parents did not survive Baby Trumbo, although the actual amendment was never carried out

The Missouri wrongful death act on its original enactment (R.S. 1855, p. 647) authorized two classes of actions. The first class against certain public carriers was penal in nature. Leaman v. Campbell, 66 Express Truck Lines, Inc., 355 Mo. 939, 199 S.W.2d 359. The second class, applying generally to death caused by the wrongful act, neglect or default of another, was compensatory in nature, with the measure of recovery the pecuniary loss to the survivors resulting from the death. Domijan v. Harp, Mo.Sup., 340 S.W.2d 728; Troll v. Laclede Gas Light Co., 182 Mo.App. 600, 169 S.W. 337.

In 1955 (Laws of Mo. 1955, p. 778), the wrongful death act was amended to eliminate the penal action, leaving only a compensatory action in which aggravating circumstances attending the wrongful act resulting in death might be considered in determining damages within the $25,000 maximum. See Contestible v. Brookshire, Mo.Sup., 355 S.W.2d 36.

A right of action by the administrator or executor was first authorized in 1905, Laws of Mo. 1905, p. 135. It first applied only to the penal action. Crohn v. Kansas City Home Telephone Co., 131 Mo.App. 313, 109 S.W. 1068. A 1907 amendment authorized action by the personal representative for the compensatory cause of action, Laws of Mo. 1907, p. 252. The cause of action so authorized is not for the benefit of the estate of the decedent. The administrator or executor sues as trustee for the benefit of the persons entitled to share in decedent’s estate under the laws of descent. Caen v. Feld, Mo.Sup., 371 S.W.2d 209; Demattei v. Missouri-Kansas-Texas R. Co., 345 Mo. 1136, 139 S. W.2d 504; McCullough v. W. H. Powell Lumber Company, 205 Mo.App. 15, 216 S.W. 803. In such actions there must be a person or persons entitled to take the estate of the decedent under the laws of descent. Johnson v. Dixie Mining & Development Co., Mo.Sup., 187 S.W. 1. Contrary to the situation with respect to the relationship between the decedent and person or persons authorized in other categories to sue, such as a parent’s suit for the death of a child (Parsons v. Missouri Pacific R. Co., 94 Mo. 286, 6 S.W. 464), there is no presumption of pecuniary loss to the beneficiaries in an action by the personal representative for the benefit of collateral heirs of the deceased. Pecuniary; loss to the beneficiaries must be alleged! (Lynch v. St. Louis Public Service Co., Mo.App., 261 S.W.2d 521; Williams v. Hines, Mo. App., 229 S.W. 414, 416(4, 5)) and proved (Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 145 A.L.R. 1176).

In an effort to meet that requirement the administrator in his petition in this case alleged that the beneficiaries had been “deprived of the decedent’s services, society, companionship and other contribution to their well-being.” The named beneficiaries, grandparents, aunts and uncles of the decedent, would not have been entitled as a matter of right to the services of the child had it survived. The mere possibility that some of the persons named might have acquired custody of ithe infant, and, by adoption or by standing in loco parentis, have succeeded to the rights of the natural parents for the services of the child is insufficient to show a reasonable probability of pecuniary benefit to the beneficiaries in the continued life of the child. The loss of society and companionship is not recognized as an element of pecuniary loss for the death of a child under our wrongful death act. Oliver v. Morgan, Mo.Sup., 73 S.W.2d 993, 997; Marshall v. Consolidated Jack Mines Co., 119 Mo.App. 270, 95 S.W. 972; Szofran v. Century Electric Co., Mo.App., 255 S.W. 2d 443. “Other contributions to (the) well-being” of the beneficiaries would likewise be required to have a pecuniary value. In our opinion, the death of the infant prior to birth would necessarily preclude any showing of a reasonable probability of pecuniary benefit to the beneficiaries by reason of the continued life of the decedent. Certainly any possibility of financial contribution to the beneficiaries by the decedent, had the child lived, is too remote to be considered. The possibility of the beneficiaries sharing in the estate of the decedent is similarly wholly remote and speculative. See McLeod v. Tri-State Milling Co., 71 S.D. 362, 24 N.W.2d 485. We can conceive of no matter of pecuniary benefit which would be even remotely susceptible of proof in a situation such as that presented in this case where the beneficiaries to the action are grandparents, aunts and uncles of an infant who dies prior to birth.

The appellant, in his briefs in this court, has not endeavored to point out wherein the beneficiaries in this case might have suffered pecuniary loss. The appellant states that he has sufficiently alleged a showing of pecuniary loss and that the establishment of his allegations would be simply a matter of proof. The appellant states that an allegation similar to that here employed was held sufficient under the Nebraska wrongful death act in Tucker v. Draper, 62 Neb. 66, 86 N.W. 917, 54 L.R.A. 321. However, in that case the action was brought by the father of a deceased infant. Were that the situation presented, the sufficiency of the allegation insofar' as alleged loss by reason of deprivation of right to the services of the child might present a different question. Oliver v. Morgan, supra. Such is not the case here presented, however.

The appellant also would imply from Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, that actual loss is not required for the recovery by beneficiaries in the fourth class under the wrongful death act. We find no such implication in Cummins, which was concerned with the rights of surviving children to sue for the death of their father, after the mother had sued for such death but died before recovering therefor.

Appellant asserts that in any event he is entitled to nominal damages inasmuch as he has alleged that the infant was survived by persons within the statutory classification of persons for whose benefit the action might be brought. He further asserts that the amount of such damage may be increased because of the aggravating circumstances alleged to have been involved in the wanton, willful misconduct charged to have produced the death of the decedent.

A right to nominal damages in wrongful death actions has been recognized in this state. Stroud v. Masek, Mo.Sup., 262 S.W.2d 47. That case involves an action by a wife for her husband’s death. The law implies pecuniary loss in such cases. Steinmetz v. Saathoff, Mo.App., 84 S.W.2d 434, 437(5-7); O’Hara v. Lamb Construction Co., 200 Mo.App. 292, 206 S.W. 253. The right to nominal damages has also been recognized in actions by administrators and executors. In Morgan v. Oronogo Circle Mining Co., 160 Mo.App. 755, 141 S.W. 735, 741(12), the court stated:

“The respondent contends that there was no proof whatever of substantial damages, and that, therefore, the demurrer was properly sustained. The evidence on this question shows that the deceased left no wife, child, or children surviving him, but that the plaintiff (administrator) was his brother, and that at the time of deceased’s death he was unmarried, and was over 21 years of age. After plaintiff had shown that deceased was killed by reason of the breach of the duty that defendant owed him, in the absence of evidence showing the probable amount deceased would have accumulated during his expectancy in life, the plaintiff was at least entitled to a judgment for nominal damages.”

In Bagley v. City of St. Louis, 268 Mo. 259, 186 S.W. 966, the action was by the administrator for the benefit of half brothers and sisters of a 51-year old decedent. In reversing the jury’s verdict for plaintiff for $1,500, the court stated (186 S.W. 967):

“There was nothing in the evidence which tended to show that any of the beneficiaries received any pecuniary assistance from the deceased during his life; hence all they were deprived of was a probability of a share of the estate left by him at his death, and under the facts in this record the probable amount of such accumulation was the only matter left to the jury to consider.
* * * * ❖ *
* * * There was no substantial evidence in the record upon which to base that surmise, and nothing adduced in any part of the proof afforded a reasonable basis for such an estimate of his probable earnings or his estate at the end of his life expectancy.
* * * * * *
“The trial judge should have directed a verdict for plaintiff for nominal damages only, under the facts shown in this record. There was a total failure of proof of any other damages.”

In Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 954, 145 A.L.R. 1176, the court indicated that at least nominal damages would be recoverable in an action by an executrix for the death of her sister where the decedent had rendered domestic services to her sister in exchange for room and board, the value and extent of neither of which was shown.

In allowing nominal damages in wrongful death cases, the courts of this state follow the view of the majority of the courts in this country. See Annotation, 69 A.L.R. 2d 628. However, the right to nominal damages in such actions is not universally recognized. Nominal damages are not allowed in England under Lord Campbell’s Act, the statute which set the pattern generally for wrongful death statutes in this country. Franklin v. South Eastern R. Co., 3 H & N 211, 157 Eng. Reprint 448, 8 ERC 419; Duckworth v. Johnson, 4 H & N 653, 157 Eng. Reprint 997; Yelland v. Powell Duffryn Associated Collieries, Ltd., (Eng) (1941) 1 KB 519. For cases in this country disallowing nominal damages, see Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793, 69 A.L.R. 620; Hurst v. Detroit City Railroad, 84 Mich. 539, 48 N.W. 44; Woodcock’s Admr. v. Hallock, 98 Vt. 284, 127 A. 380; Regan v. Chicago, M. & St. P. R. Co., 51 Wis. 599, 8 N.W. 292. In Martin v. Pennsylvania R. Co., 55 Ohio App. 205, 9 N.E.2d 302, the court disallowed nominal damages in an action on behalf of collateral kin who were unable to show pecuniary loss. In that case the court stated (9 N.E.2d 304) : “Collateral heirs have no right to a minor’s earnings or to future support. The mere fact that brothers might inherit from him or receive gifts from him in the future is remote and speculative, and inimical to the expected assertion of the instinct within us to perpetuate the race, create the family and reward it, and not collateral heirs, with means of support or future estate.”

The general theory of nominal damages is that they should be allowed where a right is invaded but no damage is proved. McCormick on Damages, Sec. 20, p. 85. With respect to wrongful death actions a writer has pointed out: “Since the damages are based upon the pecuniary loss of the beneficiaries, it would seem on principle to follow that, if there is no pecuniary loss, the action cannot be maintained for the recovery even of nominal damages.” Tiffany, Death By Wrongful Act, 2d, Sec. 180.

The allowance of nominal damages would not appear to be justified on principle in this case. The right to be redressed is not the right of the beneficiaries to the continued life of the decedent or the decedent’s right in such regard. The right to be redressed is the right of the beneficiaries to receive pecuniary benefit from the continued life of the decedent. If, as we have concluded, allegation and proof of pecuniary benefit is essential to the beneficiaries’ cause of action, it logically must follow that their failure to allege and show pecuniary damage means they have failed to show the violation of any right which the action seeks to redress. Having shown no violation of the right, they are not entitled to nominal damages.

Such conclusion is not contrary to the cases in this court where it has been indicated that nominal damages should be allowed. As pointed out, Stroud v. Masek, supra, involved an action by a wife for the death of her husband. The law implies damages in such cases. In Wente, as in .Morgan and Bagley, supra, the evidence raised a probability of receipt of pecuniary benefits from the decedent, but, in the absence of proof of value of such benefits, only nominal damages could be allowed. Here the case involves not a failure of proof of value of pecuniary benefits, but impossibility of proof of loss of any reasonable expectation of pecuniary benefit from the continued life of decedent. In the latter situation, there is no basis for allowing nominal damages.

Lack of damage would also preclude reliance upon that portion of the Missouri wrongful death act which permits damages to be enhanced by the aggravating circumstances surrounding the injury and death. Damages are an essential element in plaintiff’s cause of action. Being unable to show such, plaintiff may not pursue his action to recover exemplary damages alone. McCormick on Damages, Sec. 83, p. 293. Our statute does not recognize a right of action for wrongful death for exclusively punitive damages.

In view of our conclusion with respect to this issue, we need not consider whether or not Baby Trumbo was a person within the meaning of the wrongful death statute.

The judgment of the trial court is affirmed.

HOUSER and HIGGINS, CC., concur

PER CURIAM:

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

HYDE, P. J., and HOLMAN and HENLEY, JJ., concur.

DALTON, J., absent.

      . See in this connection Graf v. Taggert, 43 N.J. 303, 204 A.2d 140, in which it was held that an action for the benefit of the parents and their other children for the wrongful death of a stillborn child, who died as a result of injuries received while en ventre sa mere, would not lie under the New Jersey wrongful death act. Recovery was denied on the basis of absence of damages. In this ease we do not consider the rights of parents to sue.


author: HOUSER, Commissioner.,

text:
    CITY OF JOPLIN, Missouri, a Municipal Corporation, Respondent, v. The JOPLIN WATER WORKS COMPANY, a Missouri Corporation, Appellant.
    No. 50507.
    Supreme Court of Missouri, Division No. 1.
    Feb. 8, 1965.

      William H. Burden, Joplin, for respondent.
    John W. Scott, Spencer, ScOtt & Dwyer, Joplin, for appellant.
   HOUSER, Commissioner.,

Action in two counts by City of Joplin against The Joplin Water Works Company. Tried to the court without a jury Coupt I for a declaratory judgment was dismissed. Judgment yras rendered for City on Count II for $48,336.84. City did not appeal from the judgment on either count. Company appealed from the order overruling its motion for new trial, a nonappealable order, but we will review the judgment on Count II on the theory that Company intended and in good faith attempted to appeal from a final judgment. State v. Kendrick, Mo.Sup., 383 S.W.2d 740 [1,2]. We have jurisdiction since the amount in dispute, exclusive of costs, exceeds the sum of $15,000. Constitution of Missouri, Art. V, § 3, V.A.M.S.; § 477.040, V.A.M.S.

Tried upon the facts by the court without a jury we review the .case on both the law and the evidence as in an equity case. The judgment is not to be set aside unless clearly erroneous. Supreme Court Rule 73.01; § 510.310(4), V.A.M.S.

On November 25, 1949 City Council passed Ordinance No. 20861, a licensing ordinance specially applicable to water suppliers, requiring payment to City of a quarter-annual license fee on or before the 30th days of January, April, July and October of each year, in the amount of 4% of gross receipts from the sale of water during the preceding 3-month period, and requiring a licensee to report under oath to the city commissioner of revenue, on forms prescribed by him, the information necessary to determine the amount of fee due for each quarter-annual period. From its effective date and in compliance with Ordinance No. 20861, hereinafter referred to as “the 4% ordinance,” Company made and presented to the proper city officials affidavits and statements of gross receipts for each preceding quarter, computed the tax at 4%, and issued vouchers to City reciting payment of 4% of the gross receipts during the 3-month period “to comply with the terms of Ordinance No. 20861 passed by the City Council of Joplin, Missouri, on November 25, 1949.” In response City issued quarter-annual licenses to Company for each subsequent three-months period to and through December 31, 1962, signed by the commissioner of revenue until the city adopted a city manager form of government in 1954, and signed thereafter by the director of finance, authorizing Company to carry on its business during a 3-month period. Each license issued stated the amount paid and that it was paid as “required by Ordinances of said City.”

On March 13, 1951 City Council passed Ordinance No. 21204, a licensing ordinance generally applicable to approximately one hundred different occupations, trades, pursuits, businesses and vocations. Section 1 repealed 37 sections of Ordinance No. 17707 and all of Ordinance No. 21194 (the subject matter of these ordinances is not revealed) but did not repeal or mention the 4% ordinance. Section 2 provided as follows:

“Every person, firm, corporation, association, partnership, joint stock company or other entity whatsoever engaged in any occupation, trade, pursuit, business or vocation or in the keeping or maintaining of any institution, establishment, article or commodity specified in this ordinance shall procure and pay for a license for the privilege of engaging in same within the limits of this city, and the fee for such license shall be in the amount hereinafter set out, EXCEPT AS OTHERWISE PROVIDED IN OTHER ORDINANCES; provided, however, that any portion of any other ordinance prescribing any license fee in conflict with the license fees fixed herein is hereby repealed.”

We have italicized and capitalized the language of Section 2 which provoked this lawsuit. The capitalized language will be referred to as “the exception”; the italicized language as “the proviso.” Section 5 contained a schedule of fees and a classification of occupations, including:

“Water companies — 5% of annual gross receipts for last preceding calendar year, per year, with a minimum of $10,000.00 per year in any case.”

We will refer to Ordinance No. 21204 as “the 5% ordinance.”

On August 27, 1951 City Council passed Ordinance No. 21365, amending the 5% ordinance by repealing the proviso, and by adding to the reference to “merchants” in § 5 a provision excluding from total receipts amounts received from the sale of cigarettes, etc. Ordinance No. 21365 will be referred to as “the proviso-repealer ordinance.”

After the effective dates of the 5% and proviso-repealer ordinances City and Company continued to operate on the 4% basis under the procedure provided for in the 4% ordinance, using the same forms of application, reports, computations, vouchers and license as they used before their enactment, the City accepting payments of license fees computed on the basis of 4% •(not 5%) of gross receipts.

In 1952, 1957 and 1960 Company filed with the public service commission applications for increases in water rates, introducing in evidence at each hearing the fact that it paid City 4% of gross receipts as a license fee. In determining the rates Com•pany could charge the commission in each •instance considered the 4% tax as Company’s operating expense for municipal licensing. Although City appeared at all three hearings and was represented by ■counsel, City did not object to this evidence, or suggest a correction from a 4% to a 5% license tax as the proper basis for the fixing of rates to be charged water users in the future, or claim that City was entitled to a license tax based on 5% of gross ¡receipts.

On November 1, 1960 City demanded from Company the payment of $51,668.11, ■calculated as the additional 1% license fee •upon gross receipts from the effective date of the 5% ordinance to September 30, 1960. Company refused to pay.

On December 21, 1962 City Council passed Ordinance No. 24708, effective that date .as an emergency ordinance, specifically repealing the 4% ordinance in its entirety, by number; specifically repealing the portion of § 5 of the 5% ordinance which read “Water companies — 5% of annual gross receipts for last preceding calendar year, per year, with a minimum of $10,000.00 per year in any case,” and repealing “all or any part of all ordinances relating to the licensing of water companies enacted prior hereto and in conflicting (sic) herewith passed prior to the effective date hereof.” Then followed a re-enactment in haec verba of the language of the original 4% ordinance, except a license fee of 5% was imposed upon gross receipts instead of 4% and an annual minimum fee of $10,000 was prescribed, and except for a few inconsequential changes of language. The preamble of Ordinance No. 24708 recited the enact- ¡ xnent in 1951 of the 5% ordinance; stated that Company contends that the proviso-repealer ordinance repealed and nullified the taxing provision of the 5% ordinance and “revived” the tax rate set out in the 4% ordinance; recited the refusal of Company to pay on the basis of more than 4% of its gross receipts; recited Company’s contention that by accepting 4% since November 1949 to date and granting licenses during that period of time City is guilty of laches and is estopped from claiming any additional amount; related that a controversy existed between City and Company as to the amount of past due tax; and stated the desire of City Council “to eliminate any controversy” as to the percentage to apply to future sáles, and the legislative intent of City Council “to establish a five percent rate of the gross sales with a minimum of $10,000.00 per year as a license fee for said [water] companies * * * without waiving any of its rights to collect the additional amount that the city claims is due it under the terms and conditions of certain provisions of Section 5” of the 5% ordinance. When Ordinance No. 24708 became effective, December 21, 1962, Company for the first time began to report, compute, and pay its license fees on the basis of 5% of gross receipts.

This suit was filed in one count for a declaratory judgment on November 22, 1961. On March 27, 1963 City filed an amended petition adding Count II on account, praying for $67,255, plus interest. Company’s answer to Count II alleged that the 4% ordinance remained in force and effect from its effective date to December 21, 1962, unaffected by the 5% ordinance by reason of the ambiguous and contradictory nature of the exception and the proviso in its Section 2 and set up the defenses of laches, estoppel and limitations. City’s reply denied the existence and applicability of the defenses of waiver, estoppel and limitations.

The court found for City, rejecting all defenses except that of limitations which it sustained in part, whereby recovery of an additional 1% on gross receipts prior to five years preceding November 1, 1960, the ■date of demand for payment, was precluded.

Company’s first point is that the ■court erred in determining that the 4% ordinance was repealed by the enactment of •the 5% ordinance; that under proper application of the rules of construction the •4% ordinance continued in force and effect until specifically repealed by Ordinance !No. 24708 on December 21, 1962.

We do not understand it to be the posi'tion of City that no construction is necessary. (City would hardly be in a position to make this claim, since City affirmatively alleged in its count for a declaratory judgment [allegations adopted and realleg-ed in Count II now under review] that •there is uncertainty “as to how each party is to proceed” and that it is necessary that the 4% and 5% ordinances and the proviso-repealer ordinance “be construed by this • court to clarify same.”) Conceding that ■;§ 2 of the 5% ordinance is not drawn as .•artfully as may be desirable, City contends that the exception therein contained is not applicable to Company; that the intent of City Council to establish a new 5% rate clearly appears, as evidenced by the pro•viso, which City says specifically repealed the 4% ordinance, and by the 5% rate •prescribed in § S; that Ordinance No. .21365 is nothing but a special ordinance-•dealing only with the licensing of cigarette vendors.

In determining whether the 5% ordinance repealed the 4% ordinance the court first looks to the 5% ordinance itself. "The intent of the municipal legislative body “is to be found primarily in the language of the ordinance.” 62 C.J.S. Municipal Corporations § 442, subpar. f(2), p. 844; McQuillin, Municipal Corporations, 3rd Ed., Vol. 6, § 20.45, p. 109. Section 1 expressly repealed all of Ordinance No. 21194 and parts of Ordinance No. 17707 but did not expressly repeal the 4% ordinance by number nor did it specifically refer to the 4% ordinance. Section 2 imposed a duty upon all named persons, corporations, etc. to procure and pay for a license for the privilege of engaging in business in the city and directs that “the fee for such license shall be in the amount hereinafter set out, EXCEPT AS OTHERWISE PROVIDED IN OTHER ORDINANCES; provided, however, that any portion of any other ordinance prescribing any license fee in conflict with the license fees fixed herein is hereby repealed.”

Under the capitalized language the fee based upon 4% of gross receipts under the 4% ordinance would be excepted from the operation of the 5% ordinance, because the 4% ordinance is an “other” ordinance which “otherwise” provides. The capitalized language (the exception) thus is indicative of a legislative intent that the ordinance providing for a fee based upon 4% of gross receipts should remain in force and effect. Inconsistently, the italicized language (the proviso) is indicative of a legislative intent that that portion of the ordinance providing for a fee based upon 4% of gross receipts should be repealed, because it is a “portion of [another] ordinance prescribing [a] license fee in conflict with the [5%] license fee fixed” in the 5% ordinance. The exception and proviso thus are in irreconcilable conflict, incompatible, confusing and self-destructive. They render the 5% ordinance ambiguous insofar as water companies are concerned. While the general purview of the 5% ordinance, in this connection, is to fix the license fees of water companies on the basis of 5% of gross receipts, the exception stands in the way. It is the exception which injects the ambiguity. If the exception could be excised the ordinance would be rendered entirely harmonious. Acting on the presumption that the legislature never intends to enact an absurd law, incapable of being enforced, and on the principle that the reason of the law should prevail over the letter of the law, courts on numerous occasions, confronted with ambiguous or contradictory language, have adopted a construction which modifies the literal meaning of the words, or in extreme cases have stricken out words or clauses regarded as improvidently inserted, in order to make all sections of a law harmonize with the plain intent or apparent purpose of the legislature. Looking only at the two ordinances to ascertain the intention of City Council we would be justified in applying this rule, striking out the exception, and finding that the 4% ordinance had been repealed by implication, if not expressly by the proviso in the 5% ordinance. In cases of ambiguity and uncertainty in the language of an ordinance, however, the court may and should “consider extrinsic matters which tend to throw some light on the legislative intent.” 62 C.J.S. Municipal Corporations § 442f (2), p. 844. There is an abundance of extrinsic evidence, which we cannot ignore, indicative of a legislative intent not to repeal the 4% ordinance; evidence which convinces us that the application of the rule would result in injustice.

We refer to the subsequent legislative history and the contemporaneous construction by City Council, its legal representatives, the officers in charge of the administration of the licensing ordinances, and Company over a period of many years.

“[I]t cannot be denied that one of the accepted canons of statutory construction permits and often requires an examination of the historical development of the legislation, including changes therein and related statutes.” State ex rel. Klein v. Hughes, 351 Mo. 651, 173 S.W.2d 877, 879 [3]. By tracing the history of legislation on the subject the court endeavors “ ‘to ascertain the uniform and consistent purpose of the Legislature, or to discover how the policy of the Legislature with reference to the subject-matter has been changed or modified from time to time., With this purpose in view therefore it is proper to consider, * * * acts passed at prior and subsequent sessions, and even those which have been repealed.’ ” (Our italics.) State ex rel. Columbia Nat. Bank of Kansas City v. Davis, 314 Mo. 373, 284 S.W. 464, 470[7]. The subsequent legislative history of the 5% ordinance is illuminating. The 5% ordinance was amended about six months after it was passed. In construing amended ordinances both the old and the new ordinance, the mischief and the remedy, as well as the history of the amendment, and the amended ordinance as1 a whole, are to be considered. McQuillin, Municipal Corporations, 3rd Ed., Vol. 6, § 20.62, p. 147. The mischief in the 5% qrdinance lay in the fact that the exception and proviso were inconsistent and mutually self-destructive. The remedy adopted by City Council (repeal of the proviso), apparently designed to cure the fault in the 5% ordinance, did not accomplish its purpose. A repeal of the exception would have remedied the mischief, for this would, have eliminated the ambiguity and the intention to tax on the 5% and not on the 4% basis would have been clearly revealed. Instead of adopting this clear and unmistakable method of clearing up the confubion City Council repealed the proviso, thereby indicating an intention not to repeal portions of other ordinances prescribing license fees in conflict with fees computed on the 5% basis. This action was consistent with an intention to continue the 4% rate in effect. In any review of the legislative history Ordinance No. 24708 must be taken into account. Its preamble recited that a controversy had developed. It stated the diametrically and unresolved contentions of the adversary parties and indicated clearly its purpose to settle the issue and remove all doubts as to the rate to be collected from and after December 21, 1962. It conclusively established City’s intention to collect future fees on a 5% basis, but is of little or no value in determining City’s intention in 1951, because it was passed after the lawsuit had been filed. Any declared intentions favorable to City or unfavorable to Company, made during the pendency of litigation on the issue, would be discounted as self-serving. It would be improper to draw the conclusion that the ordinance was a legislative recognition that in 1951 City Council had attempted but failed to repeal the 4% ordinance and that the 4% ordinance was still in effect This for the reason that Ordinance No. 24708 very clearly indicates an intention to reserve and not prejudice City’s right to collect the additional 1% claimed.

Although the contemporaneous construction adopted by the parties interested in the enforcement of the ordinances is not controlling or binding upon the courts it is entitled to great weight. McQuillin, Municipal Corporations, 3rd Ed., Vol. 6, § 20.45, p. 109; 62 C.J.S. Municipal Corporations § 442, subpar. i., p. 850; Automobile Gasoline Co. v. City of St. Louis, 326 Mo. 435, 32 S.W.2d 281, 283; State ex rel. Kansas City Ins. Agents’ Ass’n v. Kansas City, 319 Mo. 386, 4 S.W.2d 427, 431 [6]; State ex rel. Union Electric Light & Power Co. v. Baker, 316 Mo. 853, 293 S.W. 399, 404. “[A] construction placed upon [the ordinances] by the officers charged with their execution should be favored by the ■courts.” City of Sedalia ex rel. Ferguson, City Treasurer v. Shell Petroleum Corp., 8 Cir., 81 F.2d 193, 197. The contemporaneous construction adopted by the parties between the effective date of the 4% ordinance and the passage of Ordinance No. 24708 (a period of ten or eleven years) and adhered to even after demand made in 1960 and after suit filed in 1961, strongly evidences an intention and recognition through the years that the 4% rate was in effect. The revenue officials, with full knowledge of the 5% ordinance, quarter after quarter over this long period, accepted fees and issued and certified licenses as in conformance with the ordinances based on 4% reports and calculations. That this was done with the acquiescence and consent of City Council must be inferred. The commissioner of finance was a member of the council. The silence and failure of counsel for City to speak up when Company turned in its licensing expense of operation on a 4% basis at the three public service commission hearings constituted a tacit approval, and acquiescence in the lower rate as the applicable rate.

Taking into consideration these extrinsic matters, all of which indicate a clear legislative intent contrary to that asserted by City in this litigation, we conclude and hold that while City Council attempted to raise the rate from 4% to 5% it failed in its purpose and that after the passage of the 5% ordinance and until the date of the passage of Ordinance No. 24708 it was the intention of City Council that the 4% ordinance remain in force and effect, and that Ordinance No. 20861 was not repealed until December 21, 1962.

The judgment on Count II is reversed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . In re Tompkins’ Estate, Mo.Sup., 341 S.W.2d 866, 872, 873; Boll v. Condie-Bray Glass & Paint Co., 321 Mo. 92, 11 S.W.2d 48, 53 [6]; State ex rel. Harvey v. Sheehan, 269 Mo. 421, 190 S.W. 864, 865; Gist v. Backliffe-Gibson Const. Co., 224 Mo. 369, 123 S.W. 921, 927 [4]; Glaser v. Bothschild, 221 Mo. 180, 120 S.W. 1, 12, 22 L.R.A.N.S., 1045; State v. Moody, 202 Mo. 120, 100 S.W. 619, 620; Stubbs v. Mulholland, 168 Mo. 47, 67 S.W. 650, 658; Keene v. Wyatt, 160 Mo. 1, 60 S.W. 1037, 63 S.W. 116, 120; State v. Bixman, 162 Mo. 1, 62 S.W. 828, 836; State ex rel. State Industrial Home for Girls v. Pike County Court, 144 Mo. 275, 45 S.W. 1096, 1098; City of St. Louis v. Dorr, 145 Mo. 466, 41 S.W. 1094, 1098, 46 S.W. 976, 42 L.R.A, 686; Cole v. Skrainka, 105 Mo. 303, 16 S.W. 491, 492; Irvine v. Leyh, 102 Mo. 200, 14 S.W. 715, 16 S.W. 10, 11; Bingham v. Birmingham, 103 Mo. 345, 15 S.W. 533, 535.