text:
    WESTERN CASUALTY & SURETY COMPANY, a Corporation, Plaintiff-Appellant, v. FIRST STATE BANK OF BONNE TERRE, a Corporation, Defendant-Respondent.
    No. 31867.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.

      Buerkle & Lowes, Albert C. Lowes, Jackson, for plaintiff-appellant.
    Dearing, Richeson, Weier & Roberts, J. Richard Roberts, Hillsboro, W. Oliver Rasch, Bonne Terre, for defendant-respondent.
   DOERNER, Commissioner.

Plaintiff, the surety on a guardian’s bond on which it had sustained a loss of $1118.-53, sought in Count I of its petition to recoup from the defendant bank, and in Count II from Edward Gibson, the principal. The court rendered a judgment against plaintiff and in favor of the bank on the first count, and in favor of plaintiff and against Gibson by default on the second. Plaintiff alone has appealed.

Since this is an appeal in an equity case and the appellant has brought up the entire record we must try the matter de novo. In so doing we take into consideration only such competent evidence as we deem admissible, and reach our own conclusions without regard to the trial court’s findings. Heald v. Erganian, Mo., 377 S.W.2d 431. As the record consists in the main of a stipulation of facts and documentary evidence no question of deference arises. See McMahon v. May Department Stores Co., Mo., 374 S.W.2d 82.

It is undisputed that on or about April 3, 1962, the Probate Court of St. Francois County appointed Edward Gibson guardian of the estate of his minor son, Ellis, whose age does not appear. Gibson as guardian and plaintiff as his surety executed and filed a bond in the usual form. The only asset of the ward was the sum of $2500 which the guardian invested in a time certificate of deposit issued to him as guardian by the defendant bank, numbered 10343, dated April 10, 1962, and due one yeár after date with interest at the rate of four per cent. At some subsequent time, presumably in November, 1962, Ellis, the ward, appeared at the bank and asked Robert B. Smith, its assistant vice-president, for some of the funds which his father, the guardian, had deposited. Smith told Ellis that he couldn’t issue “regular funds” and that he would have to talk to the guardian. Thereafter Ellis returned to the bank with his father, and according to Smith “they” told him that they wanted to use the funds “For hospitalization,” but for whose hospitalization does not appear. Smith gave Gibson $200, and prepared a negotiable promissory note for $200, dated November 24, 1962, payable to the defendant bank or order on demand, with interest at 6%, which was signed “Edward C. Gibson.” The form was that for a collateral note, and provided that Gibson assigned, pledged and delivered to the bank as collateral “ * * * Our C/D #10343 for $2500.00 Due 4-10-63,” the certificate of deposit which the bank had issued to Gibson as guardian. Smith conceded on cross-examination that the payment to Gibson was a loan, and that there was no authority from the Probate Court respecting the transaction.

Stanley E. Mayberry, assistant cashier of the defendant bank, testified on its behalf that thereafter Ellis called him on the phone and said that he wanted $200 to buy clothes to go back to school. Mayberry told Ellis that the bank could not do it without the guardian of the estate being present. Later Gibson came in to the bank (perhaps with Ellis, although that is not clear) and Mayberry gave Gibson another $200 in return for which Gibson executed a promissory note for $200 payable to the bank or order, dated November 28, 1962, due on demand, with interest at 6%. The form used was the same as the note of November 10, 1962, the certificate of deposit previously issued to the guardian was likewise pledged as collateral security, and this note was also signed “Edward C. Gibson.” Mayberry testified on direct examination that in each instance the note “was attached and placed with the time certificate,” from which we gather that Gibson delivered the certificate of deposit to the defendant bank. Mayberry likewise agreed, on cross-examination, that “technically” the transaction was a loan, that interest of 6% was charged, and that there was no “written authority from any authority to deliver this sum of money.”

Mayberry also handled the third transaction in which Gibson and Ellis requested an additional $200. That sum was likewise paid to Gibson, and a third note for that amount, dated December 20, 1962, due on demand and if no demand on April 10, 1963, was executed by “Edward Gibson.” As with the first two, the certificate of deposit issued to the guardian was pledged as collateral security.

The fourth transaction was handled by Marvin Ringer, Sr., cashier of the defendant bank. He testified on direct examination that Gibson contacted him to get an additional $500 and that he told Gibson that “ * * * we couldn’t advance him any money without a court order from the Probate Judge.” He stated that Gibson later returned with an order from the Probate Court, dated January 30, 1963, and that $500 was then given to the guardian and a note taken from him. Exhibit D, the fourth note, dated January 30, 1963, is similar to the preceding three except as to the amount, but in this instance the words “Estate Ellis Edward Gibson, Minor” are printed above the signature “Edward Gibson,” and the word “Guardian” below. The printing obviously was done by a hand other than that of Gibson. As with the first three notes, the certificate of deposit was listed as the collateral security pledged. The order from the Probate Court referred to by Ringer, dated January 30, 1963, recites that:

“Upon the Petition of the guardian herein and the evidence therewith submitted, it is hereby ordered by the court that this guardian is authorized and directed to withdraw a sum not to exceed $500.00 from the funds of this ward on deposit with the First State Bank of Bonne Terre and that such sum be allowed and Ap-appropriated (sic) to this guardian for payment of necessary medic?.1 expenses of the ward. A certified copy of this order shall serve as authority for said bank to permit the withdrawal of said funds.”

By its terms the certificate of deposit for $2500 became due and payable to the guardian on April 10, 1963, together with interest thereon of $100. The amount then due on the four notes to the bank executed by Gibson aggregated $1100, together with interest of $18.53. On that day the bank subtracted $1118.53 from the $2600 due the guardian on the certificate and applied it to the payment of the principal and interest due on the notes.

It appears from the record that beginning on February 23, 1963, the Probate Court had repeatedly notified the guardian to file his annual settlement, and that the guardian had failed to do so and had confessed that he did not have and could not account for all of the assets of the ward’s estate. By an order of April 26, 1963, which recited such facts, the Probate Court revoked Gibson’s letters, removed him as guardian, and fined him $100. By the same order the court found “ * * * that the unaccounted for assets of this estate consisted of $2,500.00 in cash which sum was invested in a federally chartered and insured savings and loan institution which paid earnings at the rate of 4)4% per an-num compounded semi-annually and should have earned the sum of $113.76 while under the control of said guardian.” It further found that unnecessary court costs in the amount of $42.75 had accrued because of the guardian’s failure to account, and entered judgment against Gibson as guardian and plaintiff as his surety in the amount of $2756.51. One A. C. Sullivan, Jr., was by the same order appointed successor guardian, and the judgment was ordered paid to him.

It appears that plaintiff subsequently filed in the Probate Court an application for an order to take charge of the assets belonging to the ward which were in defendant’s possession. The transcript contains a copy of the order made by the Probate Court on June 7, 1963, in which the court found that plaintiff was the surety; that Gibson as guardian had deposited the ward’s $2500 with defendant bank in the form of the time certificate; that though notified to do so Gibson had failed to file his annual settlement and had been removed; that the judgment for $2756.51 had been entered against Gibson and plaintiff as his surety; that Sullivan had been appointed and had qualified as guardian; that

“6. There is in the possession of the First State Bank of Bonne Terre, Bonne Terre, Missouri, a bank draft, in the amount of $1481.47, standing in the name of Edward Gibson, Guardian of Ellis Edward Gibson and is a proper asset of the estate of the minor.
“7. That this sum of $1481.47 is properly an asset of the estate of the minor, and should be turned over to the new guardian and the sum offset against the $2756.51 ordered by this court to be paid by the petitioner to the successor guardian, A. C. Sullivan, Jr.
“8. Petitioner stands ready, willing and able to pay the difference between $2756.51 and $1481.47 to Mr. A. C. Sullivan, Jr., as guardian of the estate of Ellis Edward Gibson.”

and the court ordered that plaintiff was authorized to take possession of the $1481.47 held by the defendant bank and turn the same over to the successor guardian; to pay the additional sum of $1275.04 of its own funds to the successor guardian; and that upon the filing of receipts from the successor guardian for said sums the plaintiff would stand discharged from all further liability. The record further shows that the plaintiff thereafter filed a petition in the Probate Court for an order discharging it on its bond, and that on June 14, 1963, the Probate Court made an order in which it found that plaintiff had paid said sums to the successor guardian and filed his receipts therefor, and ordered and adjudged that plaintiff stood discharged from any further obligations on its bond.

The gist of plaintiff’s claim as pleaded in the count concerning the defendant bank was that the four loans had been made “to the guardian” without any authorization from the Probate Court; “That on or about the 10th day of April 1963, First State Bank of Bonne Terre, knowing that said monies belonged to the ward, wholly without authority converted to its own use monies belonging to the ward, in that it applied the proceeds of said certificate of deposit to the four notes referred to in paragraph 5, making the total sum misapplied of $1118.53. * * and that by paying the judgment rendered by the Probate Court against the guardian and plaintiff as his surety “* * * the plaintiff became subrogated to the rights of the obligee or ward against the defendant.” The prayer was for judgment for $1118.53, together with interest and costs. Defendant denied the guardian’s lack of authorization and pleaded the order of January 30, 1963, as authority for the loan made on that date. It also pleaded good faith, reliance on the representations of the guardian and the ward, denied that plaintiff had become subrogated to the rights of the ward, alleged that the guardian, the ward and plaintiff were estopped to assert a claim against it, pleaded that by the Probate Court’s order of June 7, 1963, plaintiff’s claim merged in said order and became res adjudicata, and that by virtue of the order plaintiff was estopped to maintain this proceeding.

There can be no question regarding the guardian’s authority to invest the ward’s money in the time certificate of deposit. Section 475.190, subd. 1(10), RSMo 1959, V.A.M.S., expressly empowers a guardian to invest the money of his ward in “(10) Savings accounts and time deposits, including time certificates of deposit in banking institutions.” However, in that connection it should be borne in mind that a certificate of deposit is not evidence of an ordinary deposit of funds, as in a savings or checking account, and that in legal effect such a certificate is a note of the institution which issues it, payable only according to its terms. Farmers’ & Traders’ Bank v. Harrison, 321 Mo. 815, 12 S.W.2d 755; Phillips v. Alford, Mo.App., 90 S.W.2d 1060. This distinction is important because of the interpretation defendant places upon the four transactions by which the guardian obtained from it a total of $1100. Defendant takes the position that each of these transactions was a withdrawal by the guardian from the ward’s $2500 represented by the certificate of deposit. With that contention we cannot agree, for it flies in the face of the conceded facts. By its terms the certificate of deposit was not due and payable until April 10, 1963, a date long after the four transactions had been consummated. Hence there was no withdrawal, for there was no deposit from which a withdrawal could be made. What the guardian actually did, as evidenced by the four collateral interest-bearing notes and the testimony of the bank’s own officers, was to borrow the four sums totaling $1100 from the defendant, which loans were made by the bank from its own funds, and on each of which the defendant required the guardian to pledge the certificate as collateral security.

It is clear that in borrowing from the defendant and attempting to obligate the estate of the ward for the payment of such loans the guardian exceeded his authority. A guardian is a creature of statute and has no inherent authority as such, but only those powers prescribed by statute. Scott v. Royston, 223 Mo. 568, 123 S.W. 454; In re Cordes’ Estate, Mo.App., 116 S.W.2d 207. Section 475.125 of our present probate code provides in part that, “ * * The court may authorize the guardian to borrow money and obligate the estate for the payment thereof if the court finds that funds of the estate for the payment of such obligation will be available within a reasonable time and that the loan is necessary for the support * * * of the ward or for the maintenance of his property * * A guardian may not, therefore, bind the estate of his ward by borrowing money for his support or his education without first obtaining an order from the probate court authorizing him to do so. Buie’s Estate v. White, 94 Mo.App. 367, 68 S.W. 101; In re Taylor’s Estate, Mo.App., 5 S.W.2d 457. It is undisputed that the guardian did not obtain any authority from the probate court before he borrowed the first three sums from the defendant. As to the fourth loan, the bank apparently but belatedly realized the necessity of authorization from the probate court because Ringer, its cashier, testified that when the guardian contacted the defendant to obtain an additional $500 he told Gibson that the bank could not, “* * * advance him any money without a court order from the Probate Judge.” The guardian did obtain the order of January 30, 1963, but by its terms all that order did was to authorize the guardian “ * * * to withdraw a sum not to exceed $500.00 from the funds of this ward on deposit * * *” with the defendant. It did not purport to authorize the guardian to borrow from the defendant nor to pledge the certificate of deposit as collateral security, and such authority cannot be read into the order.

In connection with its argument that the guardian was “authorized to receive the funds that he deposited” and that the bank had the right to pay them to him defendant cites Section 456.250, V.A. M.S. Supp. of our Uniform Fiduciaries Law, Laws 1959, S.B. No. 121, Sec. 2. That section provides that a person who in good faith pays any money to a fiduciary “ * * * which the fiduciary as such is authorized to receive * * * ” is not responsible for the proper application thereof by the fiduciary. That statute might have some application if the certificate of deposit had matured and the defendant paid the amount due thereon to the guardian. But that is not this case. What the bank did here was to make four unauthorized loans to the guardian, for the payment of which he pledged the certificate. The money loaned was not funds which “the fiduciary as such [was] authorized to receive” because, as we have discussed, the guardian had no authority to borrow. Nor does Section 456.260, also cited, furnish the defendant with any exoneration for accepting the certificate as collateral for the unauthorized loans. It is elementary that one who deals with a guardian in his capacity as such is charged with knowledge that a guardian’s powers and duties are defined and circumscribed by statute. Phillips v. Phoenix Trust Co., 332 Mo. 327, 58 S.W.2d 318; Continental Casualty Co. v. Pleitsch, Mo.App., 111 S.W.2d 956. The bank was at all times aware that it was dealing with a guardian arid that the money invested in the certificate of deposit belonged to the ward. According to the testimony of its officers it had actual knowledge that the guardian was borrowing the funds and pledging the asset of his ward without prior authorization of the probate court, and for a purpose which required the approval of the court. Under these circumstances the defendant is chargeable with actual knowledge that the guardian was committing a breach of his obligation in borrowing the $1100 and pledging the certificate as security for the payment thereof. Continental Casualty Co. v. Pleitsch, supra; Mayer v. Citizens’ Bank of Sturgeon, 86 Mo.App. 422; Johnson v. Payne & Williams Bank, 56 Mo.App. 257.

Section 475.135 as amended, Laws 1959, H.B. No. 537, Sec. 1 provides that “No contract shall bind the estate of any minor * * * unless the same is made by the guardian with the approval of the court or made by the ward with the consent of the guardian and approval of the court,” except in certain instances not here applicable. The effect of this statute is “ * * * to expressly invalidate contracts for the use of any of a minor’s funds without the approval of the probate court, * * * ” Weir v. Kickbush, Mo., 353 S.W.2d 627, 634. Since the guardian had not been authorized to borrow from the defendant and obligate the estate of his ward, as required by Section 475.125, it necessarily follows that the notes executed by the guardian to the defendant were not valid obligations of the ward’s estate. Consequently the defendant had no legal right or authority to do what it did, apply part of the $2600 it owed on the certificate to the payment of the $1118.53 due on the notes. When the certificate matured on April 10, 1963, its contractual obligation and duty was to pay to the guardian for the benefit of the ward the entire $2600 it owed on the certificate, in accordance with the terms of that instrument. Instead, it made the set-off and took the position that a.ll that it held for the benefit of the ward was the sum of $1481.47.

It will be recalled that following the removal of Gibson as guardian and the rendition of the judgment for $2756.51 against him and plaintiff as his surety, the probate court by its order of June 7, 1963, authorized plaintiff to obtain that sum of $1481.47 from the defendant. Pursuant to that order plaintiff did so, and paid it, together with $1275.04 from its own funds, in satisfaction of the judgment. Having paid the judgment which made the ward whole, the plaintiff became subrogated to the rights of the ward against plaintiff. See Brown v. Bibb, 356 Mo. 148, 201 S.W.2d 370; Cowgill v. Linville, 20 Mo.App. 138; 83 C.J.S. Subrogation §§ 47 and 54e.; 50 Amer.Jur., Subrogation, Secs. 49 and 54. The ward, or the successor guardian on his behalf, could have recovered from the defendant that part of the proceeds of the certificate which was wrongfully applied to the payment of the guardian’s four notes, and under the doctrine of subrogation plaintiff is entitled to do so. Cowgill v. Linville, supra. Defendant argues that plaintiff has no right of subrogation against it because (1) “ * * * if it were found that the guardian committed a wrong, the bank did not knowingly participate * * * ”; (2), since the guardian and the ward represented to the defendant that the money borrowed was needed for maintenance and medical care, as between plaintiff and defendant the equities are in favor of defendant; and (3), that the guardian was primarily liable and defendant only secondarily, and that there can be no subrogation against one secondarily liable. The fallacy in these contentions is the erroneous assumption that only the guardian, and not the defendant bank, committed a wrong. It is true, as we have shown, that the guardian committed a wrong in borrowing from the defendant. But it is equally true, as we have also shown, that since the loans were not valid obligations of the ward’s estate the defendant also committed a wrong when it applied part of the proceeds of the certificate to the invalid notes. In fact, it was the bank’s misappropriation of these proceeds which was the immediate cause of the dissipation of the ward’s money. Hence the defendant, is not secondarily liable, but is jointly and primarily liable with the guardian. As stated by this court in Continental Casualty Co. v. Pleitsch, Mo.App., 111 S.W.2d 956, 959:

“It is elementary that one who deals with a curator in his capacity as such must ascertain the curator’s authority for any proposed action, since he not only knows that the curator is dealing with the funds or property of his ward, but is also charged with knowledge that a curator’s powers and duties are defined and circumscribed by statute. Phillips v. Phoenix Trust Co., 332 Mo. 327, 58 S.W.2d 318. It necessarily follows, therefore, that, where one receives and accepts from a curator the assets of his ward, knowing that such disposition of the ward’s assets is in contravention of the curator’s powers and duties, he is to be adjudged in law, however blameless his motives and purposes may actually have been, as having participated with the curator in his dissipation of his ward’s estate, and in consequence is to be held responsible for the money or property received. Johnson v. Payne & Williams Bank, 56 Mo.App. 257, 264; 12 R.C.L. p. 1172, § 63; 28 C.J. 1250.”

Defendant further argues that since the probate court by its order of January 30, 1963, allowed and appropriated $500 to the guardian for the payment of necessary medical expenses of the ward, the guardian was entitled to credit therefor, and plaintiff could not be subrogated to any rights thereto. But the mere fact that the guardian was authorized to expend $500 of the ward’s estate for that purpose does not mean that he in fact did so. The guardian was still under a duty to account to the court by showing that the money had actually been spent for that purpose. According to the probate court’s order of April 26, 1963, he confessed, in effect, that he could not do so, and judgment was accordingly entered against him, and plaintiff as his surety.

Defendant also asserts that the judgment should be affirmed because the circuit court was without jurisdiction “and the exclusive jurisdiction is vested in the probate court in a proceeding to discover assets,” citing Section 475.160. The thread of defendant’s reasoning is that plaintiff stands in the shoes of the ward; that the claim for an asset of the ward’s estate must be brought in the probate court; that “Even if the alleged subrogation be considered an equity matter, in the instant case it would be ‘tied to what is necessary and practical in the exercise of the probate court’s powers in the matters pertaining to probate business,’ * * * ” citing First National Bank of Kansas City v. Mercantile Bank & Trust Co., Mo., 376 S.W.2d 164; and hence that the exclusive jurisdiction was in the probate court. If this proceeding was one by the ward or his successor guardian there might be some merit to defendant’s contention. But this is an action by plaintiff on its own behalf, in which it invokes the doctrine of subrogation, “ * * * invented by equity to compel the ultimate discharge of a debt or obligation by the one who in fairness and good conscience ought to pay it. * * ” McKenzie v. Missouri Stables, 225 Mo.App. 64, 34 S.W.2d 136, 138; State ex rel. McCubbin v. McMillian, Mo.App., 349 S.W.2d 453, 459. Traditionally, circuit courts have had exclusive jurisdiction in what has been termed “purely equitable matters.” First National Bank of Kansas City v. Mercantile Bank & Trust Co., supra. We. consider this to be such an action.

Lastly, defendant contends that the trial court reached the correct result and the judgment in its favor should be affirmed because the petition failed to state a claim upon which relief may be. granted. The case of United States Fidelity & Guaranty Co. v. Mississippi Valley Trust Co., Mo.App., 153 S.W.2d 752, cited by the defendant for the proposition that an allegation of “bad faith” was necessary, is distinguishable on the facts; but if it was necessary, plaintiff’s allegation that defendant “ * * * ‘knowing that said monies belonged to the ward, wholly without authority converted to its own use monies belonging to the ward * * *is a sufficient statement of the facts showing bad faith. We do agree with defendant that the word “converted” was ill-chosen, for technically trover lies only for specific chattels wrongfully converted, and not for money had and received. Anderson Electric Car Co. v. Savings Trust Co., 201 Mo.App. 400, 212 S.W. 60. But plaintiff alleged that defendant converted the money belonging to the ward “ ‘in that it applied the proceeds of said certificate of deposit, to the four notes referred to in paragraph 5, making a total misapplied of $1,118.53.’” Thus plaintiff pleaded the essential facts, although it may have erroneously characterized what was done, and while perhaps defective, plaintiff’s petition did not fail to state a claim upon which relief may be granted. Furthermore, the sufficiency of the petition was not attacked in the trial court and is first raised on appeal, and what was said of a similar situation in Davis v. Roberts, 365 Mo. 1195, 295 S.W.2d 152, 154, is applicable here:

“ * * * It. is sufficient to say that the petition was not attacked in the trial court; that the petition states a claim upon which equitable relief may be granted; and that it is immaterial that certain facts are stated which show that plaintiff is not entitled to all of the relief he asks. The rule is well settled that when a petition, which states a claim (although defectively) upon which relief may be granted, is not assailed in the trial court, it is too late to challenge the sufficiency for the first time on appeal. Stephenson v. Stephenson, 351 Mo. 8, 171 S.W.2d 565, 569(19). In essential respects, however, the evidence conforms to the pleadings and a determination of the sufficiency of the evidence to sustain the relief granted will fully dispose of the assignment.”

For the reasons stated the judgment should be reversed and the cause remanded to the trial court with directions to enter a judgment in favor of plaintiff and against the defendant bank for the sum of $1118.53, together with interest thereon at the rate of 6% from June 14, 1963, and costs. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is reversed and the cause remanded to the trial court with directions to enter a judgment in favor of plaintiff and against the defendant bank for the sum of $111§.53, together with interest thereon at the rate of 6% from June 14,1963, and costs.

WOLFE, P. J., RUDDY, J., and ROY W. McGHEE, Special Judge, concur.


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    Mamie EAVES, Plaintiff-Respondent, v. Elsie WAMPLER, Defendant-Appellant.
    No. 31838.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.

      Barnard, Timm & McDaniel, Walter F. Timm, St. Louis, for defendant-appellant.

      Thurman, Nixon, Smith & Howald, Robert L. Smith, Hillsboro, for plaintiff-respondent.
   BRADY, Commissioner.

The respondent brought this action to recover from the appellant damages resulting from an automobile collision which occurred while she was a passenger in the appellant’s automobile. The jury returned a verdict for respondent in the amount of $8,500.00. The trial court overruled appellant’s timely after-trial motions, and she appeals. The parties will hereafter be referred to by their designation in the trial court.

There are several preliminary matters which must be ruled prior to any consideration of this appeal on its merits. We are first confronted with plaintiff’s motion to dismiss this appeal on the grounds that defendant’s brief fails to comply with Rule 83.05(a) (2), V.A.M.R., in that the brief does not contain a fair and concise statement of the facts without argument. Subsection (c) of that same rule states, in part, that the statement of the facts shall be relevant to the questions presented for determination and should not include irrelevant facts and testimony. While the statement of facts is rambling and includes many formal matters and factual statements irrelevant to a determination of the issues presented by this appeal, it does not so violate the rule as to require sustention of the motion. Accordingly, the plaintiff’s motion to dismiss the appeal should be overruled.

There is another matter which, if ruled in the defendant’s favor, would prevent this court from a consideration of this appeal on its merits. The defendant contends that the trial court ruled upon her motion for new trial without giving her an opportunity to be heard thereby depriving her of due process of law in violation of the fifth amendment to the Constitution of the United States and of Article 1, Section 10, of the Constitution of Missouri, V.A.M.S. We need not rule whether the defendant’s contention requires a construction of the constitution of this state nor whether the issue was properly preserved. Those interested in such questions may refer to the excellent article on Missouri Appellate Jurisdiction in the December, 1964, issue of the Washington Law Quarterly. In the instant case the transcript recites that the trial court heard arguments on the motion for new trial. Defendant’s counsel now states that this entry in the transcript is false and that no hearing was granted, yet he approved the transcript containing such a recital without any attempt to change what he now claims incorrect. Under these conditions this court is bound by the recital in the transcript. This court has jurisdiction of this appeal.

Another preliminary ruling is necessitated by the fact the defendant has briefed two allegations of prejudicial error which are not properly before this court. The first of these is the contention that the trial court erred in refusing to allow defendant to question plaintiff regarding the statement plaintiff allegedly made to the effect that there was nothing defendant could do to avoid the accident. There is no specific mention of this matter in the motion for new trial and neither does that motion contain a general assignment basing alleged error upon the exclusion of proper evidence. In her reply brief defendant urges that this assignment of error comes under paragraph 21 of her motion for new trial. That paragraph reads: “Under the law, the pleadings and under the evidence, plaintiff has failed to show that defendant Wampler was negligent in any of the particulars charged in plaintiff’s petition.” It is obvious that this assignment is directed to another matter entirely; i. e., the trial court’s action in overruling defendant’s motion for a directed verdict offered at the close of all the evidence. It cannot fairly be said to include the matter which defendant now seeks to raise.

The second allegation of error which is briefed although not raised in the motion for new trial is that the trial court erred in not ruling upon the defendant’s objections made during plaintiff’s closing-argument. Actually, the trial court did overrule each of the defendant’s objections, although it did not use the word “overrule.” It is well settled that while the use of such a term is preferred, the trial court may use other language which is tantamount to the use of the term “overruled.” We will not further discuss this matter as it is not made the subject of any allegation of prejudicial error in the motion for new trial.

There are four allegations of prejudicial error which require our ruling. The first of these deals with the trial court’s actions with regard to the alleged injection of the fact that the defendant had insurance into this case. The second has reference to the various contentions raised by the defendant in support of its argument that she was entitled to a mistrial due to improper closing argument by plaintiff’s counsel. The third has to do with alleged error in the giving of plaintiff’s verdict-directing instruction. The last is that the cumulative effect of the trial court’s errors in rulings require reversal of this case. The statement of the facts contained in this opinion will be limited to those facts bearing upon those issues.

Plaintiff was a passenger in defendant’s automobile proceeding southwardly on U. S. Highway 67 in St. Francois County at a speed of between 45 and 55 miles per hour. Some time before they came along there had been an accident ahead on the highway and one of the cars involved, a Plymouth, was still in the defendant’s lane of traffic stopped at an angle across the lane. The impact occurred at a point approximately even with the north end of a guardrail on the shoulder of the highway. The defendant testified she first saw the Plymouth as she came over the crest of the hill just to the north of this point. The crest of the hill was fixed by reference to a side road. She also testified that the distance between the crest of the hill and the point of impact was “around 500 feet.” Plaintiff’s witness Boyer, a land surveyor, testified that he had drawn a scale profile of this area using the point of impact as a base point. He measured from the crest of the hill to the base point and gave the distance as 635 feet. There is nothing to obstruct the vision between the crest of the hill and the base point. By the use of scale models of the automobiles involved he drew the line of sight of a driver approaching this scene on the highway. His evidence was that at a point 635 feet away from the impact the upper one-half of the Plymouth would have been visible and that from 500 feet away, all of the Plymouth would have been visible to the defendant. The defendant’s car was in good condition. It was a clear dry day.

The occurrences during this trial cited by the defendant in support of its contention that defendant’s insurance coverage was improperly injected into this trial are fourfold. Prior to voir dire the defendant’s counsel had advised the court and plaintiff’s attorney that the Hanover Insurance Company had a financial interest in the outcome of the case. The plaintiff’s attorney by leave of court asked one general question to the jury regarding this matter. However, in that question he misnamed the insurance company involved and referred to the Hancock Insurance Company. During the recess at the close of the voir dire examination defendant’s counsel apprised the court of the misnaming of the insurance company by plaintiff’s counsel and requested a mistrial. His motion was overruled. The second alleged improper injection of defendant’s insurance also came during voir dire. The plaintiff’s counsel asked this question: “ * * * Mrs. Eaves, my client in the case was examined for Mr. Timm, the insurance, the defendant’s lawyer by Dr. Louis Reuter whose office is on 9th Street in St. Louis and to- be exact I think it’s 2625A N. Ninth Street, are any of you folks acquainted with Dr. Louis Reuter or have you ever been examined by this doctor? * * * ” The defendant’s counsel admits he didn’t hear the reference to insurance contained in the question about Dr. Reuter and made no objection. The third incident occurred during the cross-examination of plaintiff. Defendant’s counsel asked: “And do you recall, Mrs. Eaves, I believe Mr. Campbell here took a statement from you, where you were present when you said, ‘Mrs. Wampler, there was nothing she could do to avoid this’? Mr. Smith: I want to object to that, Your Honor, as being improper and certainly a conclusion. The Court: That possibly is objectionable as a conclusion, you’ve no right to cross examine her at the time. Mr. Timm: Your Honor, if I may, just for the record state that if the party who has an interest in the case could make such a statement, I believe it would be proper for me to ask the question. The Court: I think you’re going to open something up that you will wish you hadn’t. Mr. Smith: I want to object to that, that some investigator might have got to this lady, at that time perhaps he shouldn’t have got such a thing. Mr. Timm: I want to object to counsel’s statement.

iff íjí ^1*

“THE FOLLOWING OCCURRED AT THE BENCH OUT OF THE HEARING OF THE JURY: The Court: What did you expect, I knew what you were going to lead into. Mr. Timm: I want to move the Court for a mistrial. * * * ” Defendant also contends that insurance was improperly injected into the case during final argument wherein this comment was made by plaintiff’s counsel: “ * * * the gentleman said, this case means as much to Mrs. Wam-pler as it does to Mrs. Eaves. And I say to you very definitely, absolutely and certainly that is not true.” Upon objection and motion for mistrial the court instructed the jury as follows: “It’s certainly an improper statement. Just argue the case and the facts that are all in. Now don’t try to start other. Motion will be denied, the jury will be instructed to disregard the statement, let’s just argue the evidence, don’t go trying to testify.”

The defendant contends that on four occasions during his closing argument plaintiff’s counsel made improper and prejudicial remarks. The first of these has to do with a reference to Thomas Daffron. During the voir dire the plaintiff’s counsel had asked the jury whether any of them were acquainted with Mr. Daffron. During cross-examination of the defendant she was asked who Thomas Daffron was and replied that he was her husband’s nephew. She was then asked whether or not he operated an automobile body shop; whether he was the one who towed the cars away after the collision; and whether or not he had the bumper of her automobile. In substance her answer to each of these questions was “yes.” During final argument counsel referred to Daffron as Da-Pron and the following occurred: “ * * * Now I leave that up to your decision as to what happened and Mr. DaPron, related to Mrs. Wampler out there after the collision, they didn’t bring him in. * * * ” Defendant’s counsel objected on the grounds that “* * * Mr. DaPron was under subpoena by you, Mr. Smith, this morning, you could have put him on the stand.” He moved for a mistrial on the ground the witness was equally available. His motion was denied.

Plaintiff’s counsel then continued his: argument and while commenting upon the medical testimony, he made the following argument: “ * * * I want you to remember, the only medical brought in here again, was by us. We brought in Dr. Donnell, who was the treating doctor, brought in the Jefferson County Hospital Records, nothing else has been brought in on their side. Mr. Timm: There’s no evidence of any other medical, Your Honor, object to the inferrence (sic) again.”

During the closing argument the plaintiff’s attorney commented on the distance the defendant was away from the Plymouth when it first came into her view. He then said: “* * * Now what did they do? They went out and they took measurements, they had a man out there measuring, don’t believe for a moment, ladies and gentlemen that the only measurement Mr. Timm’s firm got was Mrs. Wampler walking up the highway and counting her steps, don’t you believe that for one moment. Mr. Timm: Your Honor, I’m going to object to that. If Mr. Smith has got some other information or evidence I’d like to see it, I resent the implications.” Later in the argument the following statements were made: “ * * So you have a situation of Mrs. Wampler saying she could see and he’d like me to leave the inferrence (sic) that there’s some secret dip in there. Now what’s happened here, we brought in measurements, brought in independent witnesses, brought in engineer’s drawings, brought in just one picture that generally shows the scene, shows there was no curve or anything else and what have they brought in? Brought in these two pictures. Now I tell you these two pictures are classic examples of what you can do with photography. Mr. Timm: Object to that, Your Honor, I resent the inferrence (sic), if there’s any evidence that those two pictures are not accurate, I’d like to see it in Mr. Thurman’s office, Mr. Smith’s office or anybody’s office.”

The plaintiff submitted her case to the jury under an instruction which in its essentials so far as we are here concerned required the jury to find that the Plymouth was stopped on the highway; that by the exercise of the highest degree of care in keeping a lookout the defendant could have discovered the stopped Plymouth in time by the exercise of the highest degree of care and safety to herself and to others, to have avoided the collision by stopping; that the defendant failed to stop and that as a result of such failure the collision occurred; that in so failing to stop the defendant failed to exercise the highest degree of care and was negligent; and that such negligence, if the jury found any, directly caused or directly contributed to cause plaintiff’s injuries.

The defendant’s contention the trial court erred in permitting certain prejudicial references to the fact she had insurance is without merit. The defendant did not object to plaintiff’s counsel’s misnaming the insurance company involved when it happened. Instead, he allowed plaintiff to conclude his voir dire and then conducted his own extensive voir dire occupying seven pages of the transcript before he objected. His objection came too late. The result was that the plaintiff did not get to inquire of the panel concerning their interest in the insurance company actually interested in her trial. This plaintiff was entitled to do. Gooch v. Avsco, Inc., Mo., 340 S.W.2d 665, l. c. 668. Accordingly, the defendant was not prejudiced by the trial court’s action. The second incident, the use of the word “insurance” in the question involving Dr. Reuter, was never made the subject of any objection by defendant and cannot be raised now.

The defendant complains that the word “investigator” used by plaintiff’s counsel in objecting to the question regarding plaintiff’s previous statement to the effect there was nothing defendant could do to avoid the collision so injected the fact the defendant had insurance into this case as to compel this court to reverse this judgment and grant the defendant the new trial denied her by the trial court. The word “investigator” cannot be said only to be used in connection with insurance companies. In the question which led to this occurrence defendant’s counsel had referred to a statement taken by a Mr. Campbell. The exact words were “1 believe Mr. Campbell here took a statement from you * Campbell is not otherwise identified but by the use of the word “here” it seems more reasonable that the jury might conclude that Campbell, who was evidently seated near defendant’s counsel, was an investigator for the defendant. In any event, we cannot now say the use of this word so injected the fact defendant had insurance into the minds of the jury as to require reversal of this judgment.

The last alleged injection of insurance which, defendant contends, should have caused the court to grant her a mistrial occurred during final argument when the plaintiff’s counsel took issue with defendant’s counsel’s statement the outcome of the trial was equally important to both parties. Because the trial court is in a much better position to appraise the effect upon the jury of matters that arise during final argument, it is vested with a wide discretion in ruling upon the prejudicial effect of such occurrences. Willis v. Rivermines IGA Supermarket, Mo.App., 350 S.W.2d 437. The trial court instructed the jury to disregard the statement, and we must presume the jury followed the court’s instructions. In view of the trial court’s action in that regard and because the comment was at least partially in rebuttal to defendant’s counsel’s argument we cannot hold the trial court’s action in denying a mistrial was such an abuse of discretion as to compel reversal.

In support of her contention the trial court prejudicially erred in not granting a mistrial, due to improper argument, the defendant places her main reliance upon the reference by plaintiff’s counsel as to defendant’s failure to call Mr. Daffron. Taken in the light required of us by the verdict of the jury, the evidence was that Daffron, the nephew of defendant’s husband, was at the scene of the collision and towed the defendant’s automobile away. He also brought the bumper of defendant’s automobile to St. Louis for defendant. There is no need to restate the now familiar principle here involved. Those interested may refer to the cases cited in the Mo. Digest, Trial, ^ 122, wherein that principle is clearly set forth and the cases involving a determination of who is “equally available” are collected. In the instant case the relationship borne by Daffron to the defendant’s husband is combined with the fact that the defendant was in a superior position to have knowledge of the nature of Daffron’s testimony with regard to the position of the cars, damage to the automobiles, and especially any evidence or lack of it of the defendant’s attempt to stop her automobile, such as the presence or absence of skid marks. We think the comment was unwise and yet we cannot say that under the combination of circumstances present in this case with reference to Daffron the trial court so abused its discretion with regard to argument of counsel as to commit prejudicial error by denying the defendant the only relief she requested, a mistrial.

The defendant also contends that the trial court prejudicially erred in overruling her objection to plaintiff’s counsel’s argument that plaintiff had offered the testimony of the treating physician and the hospital records and “nothing else has been brought in on their side”; that is, no medical testimony was offered by the defendant. This argument, in effect similar to that found in Chailland v. Smiley, Mo., 363 S.W.2d 619, l. c. 629, is very different from that condemned by this court in Hoffman v. Illinois Terminal R. Co., Mo.App., 274 S.W.2d 591, and taken in the context of the evidence all this amounted to was a comment upon the fact that plaintiff’s medical evidence was uncontradicted. The comment did not constitute prejudicial error.

The last two comments made by plaintiff’s counsel during argument which the defendant contends were properly objectionable have to do with the reference to measurements of the distances involved other than that by the defendant and the comment that the two photographs offered by defendant were “* * * classic examples of what you can do with photography.” With regard to the first allegedly improper comment, the defendant is mistaken in his contention there was no evidence to justify the comment. The defendant’s own testimony was that there were other people than herself mak= ing these measurements. As to the second allegedly objectionable comment we cannot find anything prejudicially erroneous in it. It may be that plaintiff’s counsel was leading up to some prejudicial comment or it may be the comment that was to follow would have been proper. We cannot speculate as to that. The comment made was not such that we can hold the trial court abused its discretion by ruling that it did not constitute improper argument.

The defendant’s third allegation of prejudicial error has reference to the giving of plaintiff’s verdict-directing instruction. The defendant attacks this instruction upon two grounds. The first contention is that the instruction fails to confine defendant’s duty to take action to the time she could reasonably appreciate there was apparent danger to the plaintiff. This attack is first advanced in the brief and was not made the subject of any specific objection to the giving of this instruction either at the trial or in the motion for new trial. Accordingly, we will not rule upon the matter.

The attack upon this instruction which is properly presented for our ruling is that the giving of the instruction was prejudicially erroneous as there was no evidence as to the defendant’s ability to stop her automobile. As stated earlier in this opinion the evidence was that the defendant should have seen the Plymouth stopped at an angle blocking her lane of the highway when she was 500 feet away at her own .estimate and 635 feet away at the plaintiff’s best evidence. She was then traveling at a speed of between 45 and 55 miles per hour. Her automobile was in good condition and there was nothing between her automobile at the crest of the hill and the stopped Plymouth which never moved from the time she first saw it. It has been the rule for some time that while we cannot take judicial notice of the exact distance within which a particular automobile may be stopped under given conditions, we may take notice of the limits within which a stop can be made. Nelms v. Bright, Mo., 299 S.W.2d 483, l. c. 490(17). In Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9, l.c. 12, the same contention as here urged by the defendant was presented and the court held that it was not necessary to prove that an automobile traveling at 45 or 50 miles per hour could be stopped within the 300 to 350 feet that lay between it and the other car. Under such circumstances as are presented in this case it is not necessary that the evidence contain specific proof of the defendant’s ability to stop within the 635 feet available to her as she approached at a speed of between 45 and 55 miles per hour. The allegation of prejudicial error is without merit.

Lastly, the defendant contends that the “cumulative effect of the court’s errors and rulings warrant the reversal of this case * * We cannot agree. After careful examination of this record we believe that the verdict and judgment was amply supported by the evidence and that the defendant’s allegations of prejudicial error, which we have been most liberal in construing, are without merit. The judgment should be affirmed. The Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BRADY, C, is adopted as the opinion of the court. The judgment is affirmed.

WOLFE, P. J., ANDERSON, J„ and WOODSON OLDHAM, Special Judge, concur.

RUDDY, J., not participating.


author: WOODSON OLDHAM, Special Judge.

text:
    STATE of Missouri ex. rel. ROYAL-McBEE CORPORATION, a Corporation, and Travelers Insurance Company, a Corp., Relators, v. Honorable Drew LUTEN, Judge of the Circuit Court of St. Louis County, Missouri, Respondent.
    No. 31932.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.

      Evans & Dixon, Albert J. Seier, Jr., St. Louis, for relators.
    Holtkamp, Miller, Risch & Amelung, James J. Amelung, Sherman Landau, St. Louis, for respondent.
   WOODSON OLDHAM, Special Judge.

This case is upon the application of the Relators Royal-McBee Corporation, a Corporation, and Travelers Insurance Company, a Corporation, for an original Writ of Mandamus to require Respondent, Honorable Drew Luten, Judge of the Circuit Court of St. Louis County, Mo., to permit them to intervene in a certain action pending in the Circuit Court of St. Louis County. Jurisdiction is in this court by virtue of the nature of the remedy requested and under the provisions of Art. V, Sec. 4 of the Constitution of Missouri, V.A. M.S.

This court issued its Alternative Writ directing the Respondent to allow such intervention or to show cause why such intervention should not be allowed. Respondent filed his return to the Alternative Writ and Relators filed their answer to said return.

From the pleadings, exhibits, suggestions and briefs, the facts set out below appear to be material to the issues involved.

Delores Floyd, hereinafter referred to as Floyd or plaintiff, an employee of Relator Royal-McBee, was injured on September 6, 1962, when her car was struck from the rear by a car operated by Joseph Montal-bano, hereinafter referred to as defendant or Montalbano. At the time of the accident Floyd was acting within the scope of her employment with Royal-McBee and she became entitled to and was paid Workmen’s Compensation by Relator Travelers Insurance Company as insurer of Relator Royal-McBee.

Plaintiff Floyd, on October 8, 1962, brought suit #249463 in the Circuit Court of St. Louis County against Montalbano, claiming damages for personal injuries, medical and hospital expenses, loss Gf earnings, and impairment of earning capacity. In April 1963, plaintiff’s attorney, Sherman Landau, was employed by relators to pursue their interests against Montalbano for compensation paid to plaintiff, on a one-third contingent fee basis. Plaintiff’s case was set for trial in April 1964. Shortly after being notified of the trial date, plaintiff’s attorney, Mr. Landau, notified relators that he and Floyd felt that there was a conflict of interest and that Landau could not continue to represent relators in the matter.

On March 16, 1964, relators filed the Motion and Petition to Intervene involved in the instant case, for the purpose of intervening in the third party lawsuit in order to protect their interest in said case. The Motion and Petition to Intervene were argued and submitted to Respondent, Hon. Drew Luten, on April 10, 1964, and were overruled by him “ * * * without prejudice to movant to refile subsequent to jury verdict.” Relators promptly brought Mandamus to this court to obtain the right to intervene as set out in the application filed herein.

At the time suggestions in support of the Motion to Intervene were filed with the respondent, plaintiff had not filed her formal claim for Workmen’s Compensation so that the amount of relators’ liability to plaintiff, if any, was not yet established.

The pertinent Supreme Court Rule and Statute provide as follows:

Section 287.150, RSMo 1959: V.A.M.S. “SUBROGATION TO RIGHTS OF EMPLOYEE OR DEPENDENTS AGAINST THIRD PERSON — EFFECT OF RECOVERY
“1. Where a third person is liable to the employee or to the dependents, for the injury or death, the employer shall be subrogated to the right of the employee or to the dependents against such third person, and the recovery by such employer shall not be limited to the amount payable as compensation to such employee or dependents, but such employer may recover any amount which such employee or his dependents would have been entitled to recover. Any recovery by the employer against such third person, in excess of the compensation paid by the employer, after deducting the expenses of making such recovery shall be paid forthwith to the employee or to the dependents, and shall be treated as an advance payment by the employer, on account of any future installments of compensation.”
“SUPREME COURT RULE 52.11 INTERVENTION
“(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * * or (2) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; * * * ”

Respondent’s return to the Alternative Writ based the refusal to permit relators to intervene on two points; (1) “* * * the relators have a separate cause of action for their subrogation claim * * * ”; and (2) that intervention would “ * * * subject plaintiff to the prejudicial impact of injection of insurance into the trial of her case and to thereby preclude her from receiving a fair consideration from the jury in her case.”

Relators claim to have met all the requirements of Supreme Court Rule 52.11(a) (2), V.A.M.R. for intervention in the Floyd vs. Montalbano case, in that (1) relators filed their Motion to Intervene within ten days after they were notified of the withdrawal of Attorney Landau as representative of their interests; (2) relators claim to have a substantial interest in the lawsuit in which they seek to intervene by reason of having paid compensation to plaintiff Floyd under the Workmen’s Compensation Act; (3) relators claim that their representation in the lawsuit is or may be inadequate (in fact does not exist by reason of the withdrawal of Attorney Landau as their counsel) and (4) that relators would, or may be, bound by the judgment in said case.

Relators’ points (1) and (3), above, are established by the record filed in this court and need not be considered further. Respondent’s point (1) above and relators’ points (2) and (4) are so closely related that they will be considered together.

Section 287.150, V.A.M.S., clearly creates the relators’ interest in the suit by Floyd against Montalbano. This interest is a right of indemnification for the compensation paid and to be paid by relators to Floyd. In O’Hanlon Reports, Inc. v. Ben Needles, 360 S.W.2d 382, 385 (St. Louis Court of Appeals 1962), this court clearly defined and recognized said interest and holds that relators do not have a separate cause of action for their subrogation claim and by so holding establishes that the relators are bound by the judgment in the case of the employee against the alleged third party tort-feasor. We adopt with approval the language of this court in that case as follows:

“Plaintiffs were at all times aware that Rosebrock had sued Needles on their behalf, as well as on his own. They had the right to intervene in that action, had they so desired, Beck v. Moll, Mo.App., 102 S.W.2d 671, McKenzie v. Missouri Stables, Inc., supra, but they elected not to do so. * * *
“(4-6) By Section 287.150 the employer is not subrogated to the whole claim of the employee. In fact, he is not even subrogated to the employee’s whole claim for lost wages. His right of subrogation is limited to the compensation paid or payable. Nor does the statutory subrogation create two separate causes of action, as did the assignment in the General Exchange case. Section 287.150 does not take away from the employee his common law right of action against the third party tort-feasor, Schumacher v. Leslie, 360 Mo. 1238, 232 S.W.2d 913; Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153. Regardless of the employer’s rights of subrogation, the employee remains a real party in interest, and may bring a suit for all of his damages. McKenzie v, Missouri Stables, Inc., supra. In fact, he must do so, for he may not defeat the employer’s right to subrogation by only suing for what he claims to be noncompensable elements of damages. Sommers v. Hartford Acc. & Indem. Co., Mo.App., 277 S.W.2d 645. In short, either the employee or the employer (or both together) may sue the negligent third party for all elements of the employee’s damages, and whichever brings the action becomes the trustee of an express trust for the benefit of the other. General Box Co. v. Missouri Utilities Co. [331 Mo. 845, 55 S.W.2d 442], supra; McKenzie v. Missouri Stables, Inc., supra. Thus the right of subro-gation given to the employer by Section 287.150 is not analogous to that acquired by the insurance carrier in the General Exchange case. Actually, while the word ‘subrogated’ is used in Section 287.150 as pointed out in McKenzie v. Missouri Stables, Inc., [225 Mo.App. 64], 34 S.W.2d 136, 141 ‘ * * * it is indemnity, and not true subrogation, for which the act provides.’ ”

The court in the O’Hanlon case also distinguished the General Exchange Ins. Corp. v. Young case, Mo.App., 206 S.W.2d 683, affirmed by the Supreme Court in 357 Mo. 1099, 212 S.W.2d 396, cited by respondent as authority for respondent’s contention that relators have a separate cause of action for their subrogation claim in the following language, of which we approve; (360 S.W.2d 382, 385)

“Plaintiffs also contend that their right of subrogation is analogous to that acquired by a collision insurance carrier which pays its insured for the damage to the insured’s automobile caused by a negligent third party and takes an assignment of the insured’s whole claim for such loss. In the case cited by plaintiffs, General Exchange Insurance Corp. v. Young, Mo.App., 206 S.W.2d 683, affirmed 357 Mo. 1099, 212 S.W.2d 396, it was held that under those circumstances a subsequent settlement by the insured for his personal injuries and property damages did not bar an action by the insurance carrier against the third party tort-feasor who had been given prior notice of the assignment. The defendant in that case contended that the insured could not split his cause of action. This court held that in cases involving subro-gation under insurance policies an exception existed to the general rule against splitting a cause of action. The Supreme Court thought it was more accurate to say that by the assignment c * * * there has been no split of the cause of action, but the creation of two separate causes of action.’ 212 S.W.2d 396, 400. Regardless of the difference in terminology, the fact which was considered decisive and the basis for both opinions was that the insured had assigned his whole claim for his entire property loss to the insurance carrier. It was held that after making such an assignment the insured had no further right or interest in the claim for property damages (and in fact, he had not sued for them) ; and that the insurance carrier thereby became ‘ * * * the real party, and the only party, interested in collecting property damages * * * ’ 212 S.W.Zd 396, 401.”

We hold that relators, having met all the requirements of the statute, Section 287.150, V.A.M.S., and Supreme Court Rule 52.11, V.A.M.R., should be permitted to intervene in the case brought by plaintiff Floyd against Montalbano as a matter of right.

Respondent’s return also claimed that intervention would “* * * subject plaintiff to the prejudicial impact of injection of insurance into the trial of her case and to thereby preclude her from receiving a fair consideration from the jury in her case.” This point is discussed in respondent’s brief under point II, said point being as follows: “The trial court was vested with discretionary authority to order a separate trial of relator’s claim for the purpose of avoiding the prejudicial impact which would necessarily result from the injection of insurance into the trial of the primary suit” and cites a number of cases, none of which are Missouri cases. Respondent also relies on Supreme Court Rule 66.02, V.A.M.R., which is, in part, as follows :

“The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim * * * or of any separate issue or of any number of claims, cross-claims, counterclaims, third party claims or issues.”

We think that this rule cannot be interpreted to prevent intervention by relators because Section 287.150, V.A.M.S., provides that the claim against the alleged negligent third party may be brought by either the employee or the employer or by both. As stated in O’Hanlon v. Needles, 360 S.W.2d 382, 386:

“ * * * In short, either the employee or the employer (or both together) may sue the negligent third party for all elements of the employee’s damages, and whichever brings the action becomes the trustee of an express trust for the benefit of the other.”

Upon further consideration of the interjection of the fact that an insurance company is a party plaintiff in the case, and has made payments of compensation to the individual plaintiff employee, we find the case of Pritt v. Terminal RR. Ass’n of St. Louis, Mo., 251 S.W.2d 622, 624 (and cases cited therein), to be in point. In this case, the widow of an employee of a contractor brought suit for the wrongful death of her husband, alleging the negligence of defendant Terminal. Plaintiff had received an award of compensation which had been paid by an insurance company. The insurance company had not joined in the wrongful death action but was represented by plaintiff’s attorney. The defendant’s attorney, on voir dire examination of the jury, announced his intention of telling the jury that the insurance company had paid compensation and that plaintiff was only entitled to recover $3,000.00 and that the insurance company was — ■

“* * * actually one of the — if not the principal plaintiff in this case, because the calculation will disclose that this case is costing the Company approximately $12,000.00, which will be paid to his widow; and I think this jury has the right to know that the real plaintiff in this case for all except $3,- 000.00 is the Insurance Company, and that this widow in no event can recover more than $3,000.00 * * * ”

Plaintiff objected on the ground that the insurance company was not an actual plaintiff and that mention of insurance or sub-rogation would prejudice the plaintiff widow’s case. The objection was sustained and upon trial plaintiff widow received a verdict of $15,000.00.

The Supreme Court held that the ruling of the trial court was right and affirmed the judgment. The court said: (251 S.W.2d 622, 625)

“Damages under the wrongful death statute are to be awarded ‘with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue,’ etc. Section 537.090 RSMo 1949, V.A.M.S. Defendant’s defense would of necessity be the same regardless of whether the action be brought in the name of the dependents as beneficiaries, or the employer or insurer, as subrogees. In either event, it is certain the division between the insurance company and Pritt’s dependents of any recovery for his death would be of no concern to Terminal. Gones v. Fisher, 286 Ill. 606, 122 N.E. 95, 19 A.L.R. 760, 766. The ‘great importance of protecting the plaintiff from irrelevant testimony during his effort to secure full damages for his injury’ has been regarded as sufficient reason for not reversing a judgment because of the rejection of evidence showing the injured employe (plaintiff) had received compensation insurance even though such evidence was held admissiblS for the purpose of showing bias and prejudice on the part of his witnesses under the particular facts there in judgment. Sprinkle v. Davis, 4 Cir., 111 F.2d 925, 931, 128 A.L.R. 1101, 1110. In the annotation appended to that case in 128 A.L.R. 1110, the matter is stated thus: ‘The court was of the opinion that in an action brought by an injured employee against a third party for damages, evidence as to the fact of compensation through other sources should ordinarily be excluded, since it tends to impede the injured man in the exercise of his right to receive full compensation * * * 9
“(4, 5) The fact of payment by the insurer of the death claim under the compensation act with consequent pro tanto subrogation of the employer and insurer is no defense to the action. 58 Am.Jur., Workmen’s Compensation, § 360. Nor will it operate to reduce the damages recoverable from one responsible for the loss. 15 Am.Jur., Damages, § 198. The conclusion seems inescapable that neither Terminal’s liability for, nor the amount to be awarded on account of, Pritt’s alleged wrongful death, were in anywise affected by the fact sought to be shown, and hence the court was warranted in excluding it.”

We can see no reason why the principles set out above cannot be applied in the instant case, in spite of the fact that the Insurance Company itself is one of the relators and would be a party plaintiff. We recognize that there are instances where reference to the subrogation claim and the real party in interest are a legitimate part of the defendant’s case, among which are, for example, showing the interest, bias or prejudice of a witness; Houfburg v. Kansas City Stock Yards Co. of Maine, Mo., 283 S.W.2d 539; but, from the record before us, such reference would not seem necessary for any purpose here. In the event that there is a controversy between an employer-insurer and the employee as to the amount due each party from the alleged negligent third party tort-feasor, the court can, under Rule 66.02, V.A.M.R., order a separate trial as to such issue, thus keeping the issue of insurance out of the trial against the said third party.

As to the unfortunate alleged insolvency of Montalbano’s insurance carrier, relators cannot be charged with the responsibility of this, any more than the plaintiff Floyd. Had not her counsel withdrawn from the representation of relator’s interest because of an alleged, but not admitted, conflict of interest, there would have been no delay. Also there is nothing in the record before us that Royal-McBee Company is insolvent nor that Montalbano is insolvent.

The Alternative Writ of Mandamus is made permanent and Respondent directed to allow Relators to intervene in St. Louis County case No. 249,463, being Floyd v. Montalbano.

WOLFE, P. J., and ANDERSON, J., concur.


author: ANDERSON, Judge.

text:
    Mary Ellen RAWLEY, Plaintiff-Respondent, v. EILERMANN TRANSFER COMPANY, a Corporation, Con P. Curran Printing Company, a Corporation, and Ace Cab Company, Defendants-Appellants.
    Nos. 31598, 31602.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.

      Guilfoil, Caruthers, Symington, Montrey, John P. Montrey, Morris A. Shenker, R. J. Slater, St. Louis, for defendants-appellants.
    Hullverson, Richardson & Hullverson, Corinne Richardson, Thomas Hullverson, St. Louis, for plaintiff-respondent.
   ANDERSON, Judge.

This is an action for damages for personal injuries which occurred when a taxicab in which plaintiff was a passenger collided with a truck within the intersection of Ninth Street and Washington Avenue in the City of St. Louis. The taxicab was owned by defendant Ace Cab Company, and the truck was owned by defendant Eiler-mann Transfer Company. At the time of the collision, the truck was being taken to the garage where it was kept after making deliveries for defendant, Con P. Curran Printing Company. There was a verdict and judgment for $15,000 in plaintiff’s favor against the three defendants. From the judgment, said defendants have appealed.

Ninth Street is a one-way street for North bound traffic. It has four lanes. Washington Avenue runs east and west and is at least four lanes wide, or wider. The intersection is in downtown St. Louis. The Wayco Parking Building is at the southwest corner of the intersection and the Staffer Hotel is at the southeast corner. The Len-nox Hotel is on the northeast corner of said intersection. There were at the time, no stop signs for east and west traffic on Washington Avenue at the intersection. A major stop sign for North bound traffic was located on the east side of Ninth St., ten or fifteen feet south of the Washington Avenue curb line. There were no cars parked at the West curb of Ninth St. Counsel for all parties stipulated that the Wayco Parking Building on the southwest corner of the intersection starts fourteen feet south of the south curb line of Washington. This fourteen feet is sidewalk area. There is a sidewalk running north on the west side of Ninth St. adjacent to the Wayco Building, but the record fails to show its width. There was ice and snow on the ground at the time in question.

Jean S. Martin was driving the truck, which was owned by defendant, Eilermann Transfer Company. He had completed the deliveries for defendant, Con P. Curran Printing Company and was just prior to the collision traveling North on Ninth Street to turn in the truck at the Eilermann Garage. It was about 4 P.M. at the time he approached Washington Avenue. William Clarence Gunther was the driver for the Ace Cab Company which was involved in the accident.

Plaintiff personally testified, and also called the cab driver and truck driver as witnesses in plaintiff’s case in chief.

Plaintiff testified that the cab entered the intersection at a speed of fifteen to twenty miles per hour and as it entered the intersection, it began to swerve. She stated she then looked to her right and saw the truck coming at about twenty-five miles per hour. It was twenty-five feet south of the intersection when she first saw it, and traveling in the right hand lane. She further testified that the truck did not stop from the time she first saw it until it collided with the cab. She stated that she did not recall either the truck driver or cab driver sounding a horn, and that the truck did not stop at the stop sign.

Jean S. Martin, the driver of the truck was called as a witness by plaintiff. He testified that as he approached the intersection, he was traveling in the third lane from the west side of the street. He stated that he stopped his truck at a point about even with the stop sign, then started forward in first gear and “nosed” out into Washington Avenue. He further testified that when the truck was started across the pedestrian crossing, he put it in second gear and “eased out” slowly into Washington Avenue; that when he got to the crosswalk, he looked to his left, that being his first opportunity to see what was coming east on Washington and at that time, he first saw the cab which was after he had “nosed” out into Washington Avenue; that the cab was then about 2 car lengths from the intersection; that when he first saw the cab, the speed of the truck was between eight and ten miles per hour; that he could not estimate the speed of the cab, but it was coming too fast for him to stop to avoid a collision; that when he first noticed the cab, he immediately applied the brakes of the truck; that he continued to watch the cab; that the cab driver applied the brakes of the cab when he observed the truck entering Washington Avenue, and “slid” sideways toward the Lennox Hotel; that the right front fender of the cab came in contact with the left front fender of the truck; that the truck was stopped when the collision occurred and the point of contact was on the south side of Washington Avenue. The witness further testified he did not swerve the truck from the time he first observed the cab until the impact; that he was perhaps ten or twelve feet south of the Washington Avenue curb line when he stopped the truck at the stop sign; that he traveled several feet from the pedestrian cross walk to the point of collision; that the truck was partly into Washington Avenue when he first saw the cab, and that he might have traveled two or three feet from the south curb line of Washington Avenue after he saw the cab, that is, the bumper of the truck was two or three feet from said curb line, and he, sitting in the cab was three feet south of the curbline; that under the prevailing weather conditions he going eight to ten miles per hour could stop the truck in about three feet. He further testified when asked if any horns were sounded, “not to my knowledge, I didn’t sound any horn, and I didn’t hear any horns.”

William Clarence Gunther, the cab driver, was also called as a witness for the plaintiff. He testified that as he approached the intersection, he was traveling in the curb lane, and that the collision occurred about the middle of the intersection; that the front part of the truck collided with the right front fender and front door of the cab, at which time his cab was slightly at an angle facing the Lennox Hotel; that the speed of the cab as it approached the intersection was about ten miles per hour; that when he first saw the truck it was moving and was about fifteen feet from the curb to his right, traveling about 10 miles per hour, and to his knowledge the truck was not stopped at the stop sign but kept “rolling toward me” from the time he first saw it until the impact at about the same rate of speed; that when he first saw the truck he applied the brakes on the cab and swerved to the left; where its left side was about at the white line in the middle of Washington Avenue; that the impact forcibly pushed his cab farther out into the street; and that the truck got into the intersection about 6 feet.

On cross examination, witness testified he had been traveling fifty miles per hour, but reduced the speed of the cab to ten miles per hour as he approached the Ninth Street intersection; that one going east on Washington Avenue would have to be almost to the building line before the stop sign could be seen; that his cab was just entering the intersection when he first saw the truck which was about 20 feet from the curb line ; that the cab was about halfway through the intersection when it was hit by the truck; that both the truck and the cab were barely moving at the time of impact; that the cab entered the intersection at ten miles per hour; that he swerved to the left and applied the brakes in an effort to get out of the way of the truck and was going about one mile per hour when the cab was halfway into the intersection; that when he first saw the truck it was south of the stop sign and to the best of his knowledge, it was not stopped at the stop sign. On redirect examination, the witness testified that the truck was traveling faster than 10 miles per hour.

Plaintiff was injured in the collision, but since no point is made as to the extent thereof, or that the verdict is excessive, we will not review the testimony with reference to said injuries.

The case against the Ace Cab Company, was submitted on the alleged negligence of the cab driver’s failure to warn. As against the two other defendants, the case was submitted on (1) failure to stop the truck at the stop sign, (2) failure of the driver of the truck to keep a careful and vigilant watch, and (3) failure of the truck driver to yield the right of way to the Ace Cab. Defendant, Ace Cab Company offered no evidence.

Ace Cab Company contends that the trial court erred in overruling its motion for a directed verdict at the close of plaintiff’s case and at the close of all the evidence because the alleged negligent failure by its cab driver to sound a warning was not a proximate cause of the collision, inasmuch as the truck driver had all the timely notice of the cab’s presence and movements that a warning signal could have afforded him.

Both the cab driver and the truck driver were witnesses for the plaintiff. In such a situation, plaintiff was bound by the testimony of each insofar as it was the only evidence in the case. But she was not bound by the testimony of either as to matters on which there was conflicting testimony adduced or bound as to estimates of speed and distances. Lay v. McGrane, Mo., 331 S.W.2d 592; Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295. Nor is plaintiff bound by her own estimates of speed and distances, but in that regard may rely upon the testimony of either the cab driver or the truck driver provided such testimony is not contrary to plaintiff’s theory of case. Lay v. McGrane, supra. The jury was entitled to believe all or none of the testimony of any witness with respect to said estimates or believe it in part or reject it in part. And this is true with respect to facts testified to, except that plaintiff is bound by her own testimony in that regard. Kickham v. Carter, Mo., 314 S.W.2d 902.

Whether the Cab Company should prevail in its contention here depends upon whether plaintiff made a case of negligence against it on the issue of failure to warn, for when plaintiff submitted the case solely on that issue she abandoned all other allegations of negligence contained in her petition. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91. And in determining the issue, we must grant plaintiff the benefit of all the evidence favorable to her and every favorable and reasonable inference warranted by the entirety of the evidence, subject of course, to the exceptions heretofore noted. Stout v. St. Louis County Transit Co., Mo.App., 285 S.W.2d 1. If there was evidence from which the jury could reasonably infer that a warning by the cab driver would have resulted in the accident being avoided, the issue of proximate cause was properly a jury question.

The cab driver testified that as he entered the intersection, he -aw the truck driver coming past the stop sign and continue with unabated speed toward the intersection. The cab driver said the truck was 15 feet south of the south curb line of Washington Avenue and the stop sign was located ten or fifteen feet from the intersection. He further testified that to the best of his knowledge, the truck did go by the stop sign. There was other evidence that the truck did not slow down or change its course until the collision. The truck driver did not see the cab until the truck was almost into the intersection. There was testimony from which it could be reasonably inferred that the cab driver never sounded the horn on his cab. From this evidence, it could be reasonably found that when the cab driver first observed the truck running the stop sign a dangerous situation arose and that he should have foreseen or realized the probability of a collision, and in the exercise of the highest degree of care should have sounded a warning of his presence. If he had done so, the truck driver would have become aware of the presence of the cab sooner than he did and could have taken steps to avoid the collision. He could have stopped the truck before reaching the path of the cab, thus permitting the cab to pass safely in front of the truck. It is also a reasonable assumption that he could have swerved the truck, or slackened the speed thereof and thereby avoided contact with the cab. We may not, therefore, say, as a matter of law that the failure of the cab driver to sound his horn when he first observed the truck moving past the stop sign was not a proximate cause of the collision. The point urged that the truck driver had all the timely notice of the cab’s presence given him is not supported by the evidence.

The trial court did not err in refusing to direct a verdict in favor of defendant Cab Company.

The sole ground upon which appellants Eilermann Transfer Co. and Con P. Curran Co. rely for reversal of the judgment is the failure of the trial court to sustain their motion for mistrial for alleged prejudicial statements made by plaintiff’s counsel during his closing argument to the jury. Objections were made at the time the statements were made, but the motion for mistrial was not made until after the close of the argument.

One of plaintiff’s chief complaints was an alleged injury to her neck which she claimed resulted from the collision. Prior thereto, she had suffered injury to her neck in previous accidents. When she took the stand, plaintiff was thoroughly cross-examined concerning those prior injuries, and also concerning her testimony in a deposition with respect thereto. Subsequently, when recalled to the witness stand, plaintiff’s attention was called to a statement given to a láwyer in Oklahoma City concerning a fall at the airport there. This incident was after the accident which was the subject of the present action. She was vigorously interrogated about what was said by her in that statement, the purpose apparently being to cast doubt on her present claim of severe injuries as a result of the collision, by showing by her statements she was working full time prior to her fall at the airport. Counsel for defendants Eilermann and Con P. Cur-ran in his argument to the jury so argued, stating that she had while on the witness stand, admitted working full time in Oklahoma City. With this for a background, the following appears during the argument of plaintiff’s counsel:

“Mr. Hullverson: * * * And Mon-trey says, he would like to have you believe, that she was perfectly all right. Naturally, he would like for you to believe that. But there is the evidence. Nobody can dispute it. And I lay it here for anybody’s examination. Now, she didn’t take the stand to deny it. They called her hack the second time. She got bawled up there. No dispute about that. She is a human being. If I put her on the stand again, they will rehash the same old stuff * * * How many statements do you think — now, use your common sense and judgment— how many statements do you think they have taken in her past about everything. She has been in other problems all her life with these accidents. How many statements do you think they got on her? You don’t know how many he has got.
“Mr. Montrey: I object to an argument entirely outside the lawsuit, Your Honor. The evidence should be argued here. There is no evidence about this and it is not so.
“The Court: Argument of counsel.
“Mr. Hullverson: How many do you think they got on her from different places? * * *•.”

Counsel for appellants Eilermann and Con P. Curran contend that part of the argument in which counsel for plaintiff stated “How many statements do you think they got on her. You don’t know how many he has got. * * * How many do you think they got on her from different places ?” was without evidentiary support and prejudicial because its clear intendment was to imply that the defense was hiding evidence from plaintiff and the jury.

The remarks made by plaintiff’s counsel apparently related to the possibility of other statements being taken about other accidents. It is true there was no evidence of other statements and counsel’s speculation about same had no relevancy to the matter at hand, but it is doubtful that the jury would have regarded it as a charge that the defendants were suppressing evidence. And even if the argument wás improper, we are not convinced that it was of such a prejudicial character as to warrant the discharge of the jury. The trial court did not so consider it for he overruled the motion for mistrial and the motion for new trial in which the matter was again specifically brought to his attention. It must be assumed that before the trial court ruled on the motions he considered the effect of the incident on the minds of the jurors and on the outcome of the trial. It was a matter resting within the trial court’s discretion. We do not believe there was an abuse of that discretion by the court’s refusal to sustain the motion for mistrial on account of said argument.

Appellants, Eilermann and Con P. Cur-ran, complain of the following argument of plaintiff’s counsel, which they claim went beyond the scope of the evidence.

“The petition that was filed, for lack of prosecution it was dismissed. She never met this fellow, whatever his name was, in Tucson. Somebody else called up a lawyer in Tucson and said she had some damage to her car and she had some medical bill as a result of seeing that doctor on that occasion.

“Mr. Montrey: If your Honor please, I must again—
“Mr. Hullverson: And that was the evidence.
“Mr. Montrey: May I please address the Court? I must object again to counsel arguing completely outside the record. I don’t know where he gets this stuff. That lawyer down there was her agent. That’s the law. And I object to counsel arguing outside the record.
“The Court: Proceed. Argument of Counsel.”

The record shows that in 1957, plaintiff was driving in Tucson, Arizona when her car was hit from the rear by a car driven by Claude Williams. It further appears that a suit was filed in her behalf against Claude Williams in the Superior Court of the State of Arizona in and for the County of Pima. The complaint in that suit contained allegations of permanent disability and loss of earnings. This suit was dismissed for failure to prosecute on April 6, 1962. The attorney for plaintiff in that suit was a Mr. Schimmelpfenning. The record further shows that plaintiff testified she never met Mr. Schimmelpfenning and had never talked to him. Said attorney was hired for her by Mr. Carter, her attorney in Dallas, Texas. Mr. Carter made all the arrangements with reference to bringing the suit. She further testified she did not know the amount sued for, nor had she seen the allegations of the petition in that suit. She further stated that there was damage to her car at the time of the collision, and that she received medical attention for which she received a bill. In view of the foregoing statement of the record, we find the complaint made is without merit, and that the trial court did not err in refusing to declare a mistrial on account of said argument.

The final assignment of error also relates to the final argument of plaintiff’s counsel. This episode appears in the transcript as follows:

“Mr. Hullverson: * * * The only other thing; talking about evidence. I brought some evidence in. I brought, what I thought, all of the evidence in. I am not like Montrey, who didn’t want to let the doctor explain an operation ; not like Montrey who didn’t even want to let the doctor explain what the neck looks like, so that we may be here for two days, and objected to all those things.
“Mr. Montrey: If the Court please, my objection to counsel criticizing my right to protect the record and make objections. That’s my duty. And I must do those things. And that’s unfair argument again.
“The Court: Sustained.”

It is argued by appellants that its motion for mistrial should have been sustained because the argument amounted to a charge of unethical conduct for the purpose of inflaming the minds of the jury with a hostility toward the defense.

It will be observed that the court sustained the objection, and that appellants’ counsel did not ask for any other relief at that time. The court did what counsel requested. In our judgment, the court’s failure to sustain the subsequent motion for mistrial on account of this argument was not an abuse of discretion.

We find no error in the record.

The judgment is affirmed.

RUDDY, P. J., and L. F. COTTEY, Special Judge, concur.