author: HENLEY, Judge.

text:
    Dorothy CHANDLER, Plaintiff-Appellant, v. Velma GORDA, Defendant-Respondent.
    No. 50643.
    Supreme Court of Missouri, Division No. 1.
    Dec. 14, 1964.

      Samuel Richeson, Dearing, Richeson, Weier & Roberts, Hillsboro, for appellant
    Hocker, Goodwin & MacGreevy and John M. Goodwin, St. Louis, for respondent
   HENLEY, Judge.

Action for damages of $30,000 for personal injuries allegedly received by plaintiff in a one-car accident The trial resulted in a verdict for the defendant and plaintiff appeals from the ensuing judgment

Plaintiff assigns as error (1) that the court erred in refusing to sustain and in overruling plaintiff’s motion for a directed verdict at the close of all the evidence and (2) that the court erred in admitting into evidence defendant’s exhibits 1, 2, 3, 4, 5, 6, and 8, being photographs of a bridge at the scene of this occurrence.

On the afternoon of October 30, 1960 the plaintiff, the defendant, a Mrs. Marie Hasty, and others, left the Hasty residence in Hillsboro in defendant’s automobile en-route to the farm of plaintiff’s daughter in Washington County, approximately 30 miles distant, to pick apples. Defendant was driving, plaintiff was directly behind her in the back seat, Mrs. Hasty was seated in the back seat on the right holding her niece’s baby and her niece and son were sitting in the front seat with defendant. Their route to the farm took them south on State Highway #21 to a point south of Caledonia, off this highway to their right onto a graveled county road for about a mile and three-quarters and again a turn to their right in a westerly direction onto a gravel road about 15 feet wide and across a wooden bridge over a dry branch about 20 feet from their last right turn to plaintiff’s daughter’s home approximately one-half mile distant. Plaintiff was furnishing the directions as they traveled for none of the others knew the route. In crossing this bridge at about five miles per hour the automobile fell off to its right landing on its right side at the bottom of the branch and “just off of” the edge of the bridge floor, as a result of which plaintiff was injured. The branch was about “head-high deep”; the bridge was approximately the same width of the road and about 20 feet long. It was constructed of large size log timbers as sleepers on which was laid the bridge floor of three by-six inch boards of varying uneven lengths. On top of this floor running the length of the bridge in the direction of travel were two runways each about 20 inches wide and two or three inches thick so spaced as tracks to accommodate motor vehicles. Pictures offered in evidence would indicate that it was not in the best of repair and was of a kind not commonly seen today except in marginal or wooded areas. Other facts necessary to a decision will be stated in the course of the opinion.

Plaintiff’s petition alleged and the cause was submitted on the theory that her injuries resulted from defendant’s negligence in so operating her automobile as to cause the same to leave the bridge and overturn under what she says were facts making the res ipsa loquitur doctrine applicable. Defendant’s answer was a general denial coupled with a plea of contributory negligence, this affirmative defense not being submitted to the jury.

The plaintiff contends that the court should have sustained, and erred in overruling, her motion for a directed verdict at the close of all the evidence because, she says, under the undisputed evidence and defendant’s own admissions, defendant was guilty of negligence which was the proximate cause of plaintiff’s injuries. For the alleged error, she submits that the cause should be remanded to the trial court with directions to sustain the motion and enter judgment for plaintiff on the issue of liability and that the issue of damages alone be ■submitted to a jury.

On the question of when a verdict may be directed for plaintiff this court said in Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, 1. c. 693,

“ * * * It is a generally accepted rule in this state that a verdict may not be directed in favor of the proponent, that is the party upon whom the law casts the final burden of proof. Dunham-Buckley & Co. v. Halberg, 69 Mo.App. 509; Wolff v. Campbell, 110 Mo. 114, 19 S.W. 622; Goudie v. National Surety Co., Mo.App., 288 S.W. 369, loc. cit. 374; State ex rel. Strohfeld v. Cox, 325 Mo. 901, 30 S.W.2d 462; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, loc. cit 559. There is, however, a well-recognized exception to the rule. If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is un-impeached and uncontradicted, the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the questions of law involved the jury has no right to pass. Magoffin v. Missouri Pacific R. Co., 102 Mo. 540, 15 S.W. 76; Davidson v. St. Louis Transit Co., 211 Mo. 320, 109 S.W. 583; Wendorff v. Missouri State Life Insurance Co., 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R. 615; Clemens v. Knox, 31 Mo.App. 185; Stephens v. Koken Barber Supply Co., 67 Mo. App. 587; Hoster v. Lange, 80 Mo.App. 234; Woods v. Moffitt, 225 Mo.App. 801, 38 S.W.2d 525; Jackson v. Security Benefit Ass’n, Mo.App., 139 S.W.2d 1014.”

It is plaintiff’s contention that defendant admitted in her testimony the truth of the basic facts upon which plaintiff’s claim rests; that defendant has admitted that she drove the automobile upon the bridge and negligently caused the same to leave the bridge and overturn. Plaintiff refers us to the following testimony of defendant as the basis of her conclusion that defendant admitted the truth of the basic facts of plaintiff’s claim.

“Q What happened as you started across the bridge?
“A I started across the bridge and the right tire missed this — ran off of this two-board runway on top of the cross-boards, and the car started sliding, the boards broke, and we just slid off into the ditch.”
******
“Q Did you talk to Sheriff Rieffer after this accident?
“A Yes, I did.
“Q Did you tell him when you turned on the bridge you missed the runway and ran off the edge of the bridge?
“A I told him the wheels slid off of those two boards onto the cross-boards.
“Q Did you tell him anything about any boards breaking?
“A I didn’t have to. He could—
“Q I asked if you told him anything about any boards breaking.
“A Yes, I did.
“Q You told Mr. Rieffer the boards broke off?
“A The boards broke off when my—
“Q Did you tell Mr. Rieffer that?
“A I can’t be sure whether I did or not.
“Q You remember when your deposition was taken in Mr. Goodwin’s office, don’t you ?
“A Yes.
“Q You remember when my partner, Mr. Weier, asked how this accident happened?
“A Yes, sir.
“Q Did he ask you this question, page 9, (reading): ‘Q I see. All right. After you turned off the gravel road onto this road that you said was about one car width wide, can you tell us what happened? A Well, there was this bridge that was right there on the private road as you turned off the gravel road, and I turned on the bridge and my right front tire went off this bridge and the car slid off in the ditch/ Did you tell Mr. Weier that ?
“A Yes.
“Q You knew you were under oath at that time, didn’t you ?
“A Yes, sir.
“Q And you knew that Mr. Weier was inquiring of you about exactly what caused this accident, didn’t you?
“A Yes.
“Q. You didn’t say anything in that answer about any boards having broken, did you?
“A I don’t know if I did or not.
“Q Another question, page 9, (reading) : ‘Q Now you say the right front tire went off the bridge—
‘“A Well—
“Q ‘ — and the rest of the car followed and went off on the right side? A Just slid off to the side.’ Did you make that answer to that question?
“A Yes.
“Q You did not say anything there about any boards breaking, did you?
“A The boards broke off—
“Q You did not say that in answer to Mr. Weier’s question, did you?
“A I don’t remember.”

Apparently plaintiff’s position is that the basic facts of defendant’s negligence admitted by the defendant are that she neg-ligcntly caused, allowed and permitted the right tire to miss or run off the runway and thereby caused the automobile to slide or run off the edge of the bridge and into the ditch, or, that as she turned onto the bridge she caused her right front tire to go off the bridge and the automobile then slid into the ditch. Defendant’s position is that she has not admitted the basic facts of negligence because her testimony was that boards of the bridge floor broke causing her automobile to slide or fall off into the ditch, that neither the breaking of the boards nor the resultant sliding was caused by her operation of the automobile, and she was therefore not negligent; and, that consequently she has not admitted negligence. Indicative of defendant’s defense and position is the testimony of Mrs. Marie Hasty. Mrs. Hasty testified on behalf of defendant that “As the car started across it [the bridge] the boards began to break and the car, we knew it was sliding off because it gradually slid and finally it landed. The boards broke off one at a time until the car just slid off into the ditch.”

We hold that the defendant did not by her testimony admit the basic facts of plaintiff’s claim, but on the contrary she maintained and introduced evidence tending to show that she was not negligent. Consequently a question of fact existed for determination by the jury. In Bond v. St. Louis-San Francisco Ry. Co., 315 Mo. 987, 288 S.W. 777, 782-783 [2, 3], where the evidence was somewhat similar to that here and the defendant contended that the court erred in overruling its demurrer to the evidence, this court, in discussing the application of the res ipsa rule, held that the evidence made a case for the jury.

The court did not err in overruling plaintiff’s motion for a directed verdict.

Plaintiff submits as her second assignment of error that the court erred in admitting in evidence over her objection certain photographs identified as Exhibits 1, 2, 3, 4, 5, 6 and 8 offered by defendant.

Exhibits 1 and 2 were taken approximately' one month after the accident and the balance, being larger sized pictures, were taken approximately eight months later.

Plaintiff contends that these pictures do not accurately represent the bridge and its condition as it appeared at the time of the accident; that they misled and confused the jury; that they conveyed to the jury the message that repairs had been made to the bridge after the accident, thus implying that there had been substantial damage to the bridge at the time of the accident; that the jury drew an inference from these pictures that the bridge was unsafe and that its unsafe condition was what caused the accident rather than the negligence of defendant. Plaintiff’s witness, Deputy Sheriff William Rieffer, identified Exhibit 1 as showing what the bridge looked like to a driver going west, but said that he did not remember the bridge as being in as damaged a condition as it is shown in Exhibits 1 and 2. Plaintiff’s witness, Della Bourbon, identified Exhibits 1, 2, 3 and 4 as showing the bridge and said that her brother-in-law had made repairs to it about two weeks before this occurrence. Plaintiff testified that Exhibit 2 looked like the bridge, but that she had never seen it “in this kind of shape”; that the “background” in Exhibits 5 and 6 looked familiar, but the bridge shown did not. Defendant’s witness, Marie Hasty, identified all of these exhibits as pictures of the bridge and stated that' they showed the bridge in the same, or substantially the same, condition it was on the day of the occurrence, except that the bridge floor had not been patched (with two short lengthwise boards as shown in Exhibits 3, 4, 5, 6 and 8, but not shown in Exhibits 1 and 2). Defendant testified that all of these pictures represent the appearance of the bridge as it was on the day of this occurrence with the exception of the two short boards added alongside one track or runway near a hole in the bridge floor on the opposite side of that runway. With permission of the court, defendant’s counsel stated to the jury that the two short longitudinal planks appearing in the larger photographs (Exhibits 3, 4, 5, 6 and 8) do not appear in the smaller sized photographs (Exhibits 1 and 2) because the larger photographs were taken about eight months after the smaller; that the defendant does not contend that at the time of this incident those short planks were on the bridge.

Photographs properly identified and fairly representing an object and its condition immediately after an occurrence in which it is involved should not be excluded from evidence. Where photographs are taken long after the event and changes have occurred in the object they are admissible in evidence where the extent of the change is explained to the jury. The admissibility of such photographs is largely within the discretion of the trial court. Unless that discretion is abused its ruling will not be disturbed on appeal. Brock v. Gulf, Mobile and Ohio Railroad Company, Mo., 270 S.W.2d 827, 833 [8-11], and cases there cited. We do not find wherein these photographs could have misled or confused considering the evidence pertaining to them and counsel’s explanation to the jury, nor do we find wherein they are subject to the complaint of plaintiff that they imply substantial damage to the bridge at the time of this occurrence. Gignoux v. St. Louis Public Service Company, Mo.App., 180 S.W.2d 784 and other cases cited by plaintiff in support of her contention that the court erred in admitting these photographs are distinguishable on the facts and are not applicable under the circumstances shown in this record.

The photographs were sufficiently identified, they were relevant and material, and there was no error in their admission.

For the reasons stated, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    R. Douglas GRUBB, Garlon Hale, George Akeman, Richard Thurston and Dairl Mears, Appellants, v. LEROY L. WADE & SON, INC., a corporation, and Transport Terminal Corporation, a corporation, Respondents.
    No. 50661.
    Supreme Court of Missouri, Division No. 1.
    Dec. 14, 1964.

      Stephen R. Pratt, North Kansas City, Clancy D. Tull, Harry D. Pener, Kansas City, for plaintiffs-appellants.
    Harold A. Thomas, Jr., Nelson W. Hartman, Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, for defendants-respondents.
   HOUSER, Commissioner.

Action by five members of Over-the-Road and City Transfer Drivers, Helpers, Dock-men and Warehousemen, Local Union No. 41, Kansas City, to recover damages for loss of wages, vacation pay and punitive damages, based upon allegations of conspiracy and breach of a collective bargaining agreement. Defendants are Leroy L. Wade & Son, Inc., employer of plaintiffs, and the alleged co-conspirator, Transport Terminal Corporation.

Under Supreme Court Rule 74.04(b), V.A.M.R. defendants Wade and Terminal filed separate motions for summary judgment on plaintiffs’ petition, attaching supporting affidavits and exhibits. Plaintiffs made no response to the motions by affidavit or otherwise. The trial court examined the pleadings, motions, affidavits and exhibits of defendants, written briefs filed by the parties, and after hearing oral arguments found no genuine issue for trial as to any material fact necessary to entitle defendants to judgment as a matter of law and entered summary judgment for defendants and against plaintiffs.

We have jurisdiction of plaintiffs’ appeal because the amount in dispute, $168,-053.46, exceeds the sum of $15,000. Art. V, § 3, Constitution of Missouri, 1945, V.A. M.S.; § 477.040, V.A.M.S.

The facts stated in the affidavits and exhibits filed by defendants in support of their motions for summary judgment stand admitted, for the reason that plaintiffs filed no verified denial of these facts. Gruenewaelder v. Wintermann, Mo.Sup., 360 S.W.2d 678, 686.

Prior to August 10, 1962 the five plaintiffs had been employed by Wade as “checkers” or as “drive-out drivers” at Wade’s terminal at Liberty. Wade is a contract carrier engaged in the business of delivering automobiles from the Ford Motor Company plant at Claycomo. For years the plant had been serviced by three automobile carrier companies, Wade, Dealers Transport, and Associated Transports, Inc., each of which provided substantially identical services: delivering automobiles from the plant to dealers, after a preliminary “checkout” service to verify the fact that all cars leaving the plant were undamaged and that they carried all of the equipment specified on the invoice; and “drive-out” service, which involved transporting new automobiles to the carrier’s own nearby terminal, from which actual delivery runs to dealers originated. Prior to 1957 each of the three carriers handled its own check-out and drive-out service, employing its own checkers and drivers at the Ford plant. In 1957, to increase efficiency, Ford Motor Company took from Dealers and Associated the functions of check-out and drive-out service and gave this over to Terminal, which was not a carrier as such but a company providing terminal services for several carriers at that plant Wade, however, continued to perform these functions until August, 1962, through eight employees, five of whom were these plaintiffs. In August, 1962 Ford Motor Company, having determined that it was inefficient for Wade to continue to perform its own check-out and drive-out services, notified Wade and Terminal that beginning with the production of 1963 model cars all such work for all three carriers would be performed exclusively by Terminal. Thereafter only Terminal employees were in the Ford plant performing these services, instead of three separate sets of employees performing the same functions for three separate employers. Wade no longer having any such work to perform, on August 10, 1962 offered its check-out and drive-out employees the choice of continuing in its employ on an indefinite lay-off basis, not to exceed the two-year period reserved under the collective bargaining agreement, or of being put on the seniority roster of Terminal. If no choice was made they were notified that they would automatically be transferred to the Terminal seniority list. Wade’s employees were not discharged, or their employment terminated. They were laid off due to lack of work. They were entitled to be recalled to active employment by Wade in the event of an increase in force at Wade’s terminal. When the problem arose it was discussed by Wade with representatives of Local No. 41 and agreement was reached to follow the solution adopted in 1957 when Ford terminated these services by the other two carriers, i. e., by placing the former employees of Dealers and Associated on the payroll seniority list of Terminal, where they were merged with the employees already on the list as of the date of their original date of hire with their respective companies.

The terms and conditions of employment of plaintiffs and other employees of Wade were governed by a comprehensive collective bargaining agreement between Local Union No. 41 and Wade, consisting of 37 articles. Terminal and the union had an identical contract covering its employees.

Article 7 consists of three sections.

Section 1 contains an agreement not to strike “without first using all possible means of a settlement, as provided for in this Agreement, of any controversy which might arise.”

Section 2(a) provides that disputes shall first be taken up between the employer and the local union. Disputes not settled there shall go to the local joint committee, from whose majority vote decision settling a dispute no appeal could be taken to the Automobile Transporters Joint Conference Committee. Where there is no local joint committee, direct appeal to the joint conference committee is provided for. Decisions of the local joint committee by majority vote “shall be final and binding on both parties.”

Section 2(b) provides that where a local joint committee is unable to agree it shall, on request, be appealed to the joint conference committee.

Section 2(e) provides that “Any decision of the Automobile Transporters Joint Conference Committee shall be final and conclusive and binding upon the Employer and the Union, and the employees involved.”

Section 2(c) provides that if any grievance or disagreement is not satisfactorily settled under Sections 2(a) and (b), both the union and the employer shall submit the grievance to a board of arbitration consisting of three members, one appointed by the union; one by the employer, and the two together appointing a third disinterested arbitrator; the findings of the arbitration board “shall be final.”

Section 2(d) provides that all matters pertaining to the interpretation of any provision of this agreement must be submitted to the full committee of the Automobile Transporters Joint Conference Committee, which committee, after listening to testimony on both sides, shall make a decision.

Article 6 § 2 provides that the employers and unions shall together create a joint conference committee which shall consist of duly elected delegates of the employers and unions. This committee was created and duly approved a procedure under which the joint conference committee was composed of a union panel of no less than S representatives of the local unions and an employer’s panel of no less than 8 representatives. At each arbitration hearing no less than 5 representatives from each panel were to be selected to hear each case presented. If the joint conference committee reached a decision on a grievance by a majority vote “said decision shall be final and binding upon the parties,” but if unable to reach a decision on a grievance it was to be handled under the arbitration provisions [Article 7 § 2(c)].

Article 4, “Seniority,” provides that any controversy over employees’ standing on seniority lists “shall be submitted to the joint grievance procedure (ARTICLE 7)”; that controversies over reduction in board, if not settled by the joint city committee, are to be submitted by telegram to the joint conference committee, “who shall render a final decision.” Section 5 of Article 4 provides : “In the event that the Employer absorbs the business of another private, contract or common carrier, or is a party to a merger of lines, the seniority of the employees absorbed or affected thereby shall be determined by mutual agreement between the Employer and the Unions involved. Any controversy with respect to such matter shall be submitted to the joint grievance procedure (ARTICLE 7).”

The provision of the collective bargaining agreement which these plaintiffs claim was violated is Article 29(b), on the subject of “Subcontracting,” which provides: “For the purpose of preserving work and job opportunities for the employees covered by this Agreement, the Employer agrees that no work or services presently performed or hereafter assigned to the collective bargaining unit will be subcontracted, transferred, leased, assigned or conveyed in whole or in part to any other plant, person, or non-unit employees unless otherwise provided in this Agreement. The Employer may subcontract work when all of his regular employees are working except that in no event shall road work presently performed or runs established during the life of this Agreement be farmed out. No yard work shall be farmed out, except for existing situations established by agreed-to past practices. * * * Alleged violation of this provision shall be submitted to the grievance procedure.”

On September 21, 1962 plaintiffs filed a written grievance under the foregoing grievance procedure, protesting what they considered to be a violation of Article 29 (b), in that “Due to a change in the methods of operation by [Wade] certain work formerly performed by [plaintiffs] has been subcontracted, transferred, leased, assigned or conveyed to the TRANSPORT TERMINAL CORPORATION resulting in termination of [plaintiffs’] employment with [Wade], In that exactly the same work is being performed as formerly with the exception that [plaintiffs’] work is now performed by a TRANSPORT TERMINAL CORPORATION employee it is a violation of the article and section above quoted from our contract.” The matter was submitted to and heard by the Automobile Transporters Joint Conference Committee at a meeting held in Detroit, Michigan. After a full hearing that committee by uani-mous vote decided plaintiffs’ grievance adversely to them, the decision stating that in accordance with Article 4, § 5 of the agreement and consistent with its previous decisions Wade’s and Terminal’s employees “shall be merged on one seniority list as of their original date of hire with their respective employees.” Plaintiffs made no request for rehearing or further review of the decision. Plaintiffs admit, in fact, allege, that “in accordance with the terms and conditions of said contract * * * they have exhausted their means of making a grievance and have appealed said grievance as far as the terms and conditions of said contract permit them to appeal said grievance, * *

Wade and Terminal have fully complied with the decision rendered by the joint conference committee.

Thereafter plaintiffs filed their petition in this case, stating a claim against Wade the gist of which is the same grievance they unsuccessfully carried to joint conference committee, namely, that Wade breached Article 29(b). They charged also that defendant Terminal conspired with Wade to breach the same by terminating their employment by Wade “sub-contracting or transferring the work formerly done by these plaintiffs to defendant Transport Terminal Corporation, thereby eliminating the work of these plaintiffs, * * The prayer was for back pay and other allowances claimed due under the contract, and for punitive damages.

No unfair labor practice within the exclusive jurisdiction of the National Labor Relations Board is involved. Neither side has raised any such question. The ultimate question is whether the decision of the joint conference committee adverse to plaintiffs constitutes a final and binding decision precluding prosecution in the state courts of this common law action for breach of contract and conspiracy.

Plaintiffs claim that they are not bound by the decision of the joint conference committee but are free to maintain this action. We disagree. The parties to the agreement and therefore these plaintiffs contemplated the possibility of this eventuality [Article 29(b)]. They agreed that such problems be determined by mutual agreement [Article 4, § 5] ; agreed that alleged violations of Article 29(b) relating to the subject of this controversy “shall be submitted to the grievance procedure” [last sentence, Article 29(b)]; agreed upon a forum and a settlement procedure [Article 7]; agreed that the employer and local union should “be bound by the terms and provisions of this Agreement” [preamble], and that any decision of the joint conference committee submitted to it under the agreement "shall be final and conclusive and binding upon the Employer and the Union, and the employees involved.” (Our emphasis.) Having invoked the collective bargaining agreement as the foundation of their claim plaintiffs are bound by all of its provisions and may not pick and choose its favorable while ignoring its unfavorable provisions. The bitter goes with the sweet. In acquiring rights under Article 29(b) plaintiffs accepted all of the conditions to those rights, which include the method prescribed for the settlement of disputes in connection therewith, i. e., the grievance procedure. Williams v. Atchison, T. & S. F. Ry. Co., 356 Mo. 967, 204 S.W.2d 693, 696; Arbuckle v. Fruehauf Trailer Co., Mo.App., 372 S.W.2d 470, 473. What the Georgia Supreme Court said in a very similar factual situation applies here: “Whatever seniority rights the petitioners have arise solely out of the contract between the Union and the Employer, and may be lost or altered in accordance with the terms of the contract. * * * The provisions above referred to (an identical grievance procedure) are just as much a part of the contract as those providing for seniority. All members of a labor union who have constituted such union as their bargaining agent are bound by the terms of the contract made in their behalf by such labor union. * * * ” (Parentheses added.) Pratt v. Wilson Trucking Co., 214 Ga. 385, 104 S.E.2d 915, 1. c. 916.

The agreement to arbitrate grievance disputes is the quid pro qua for the agreement not to strike contained in Article 7 § 1. See Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 455, 77 S.Ct. 912, 1 L.Ed.2d 972. The inclusion of a provision for the arbitration of grievances in a collective bargaining agreement is a factor in achieving industrial peace, United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 4 L.Ed.2d 1409, a contracting-out case, and accords with public policy, which favors collective bargaining agreements fixing conditions of employment between labor and management McAmis v. Panhandle Eastern Pipe Line Co., Mo.App., 273 S.W.2d 789. That policy is expressed in Section 203(d) of the Labor Management Relations Act, 1947, 61 Stat 154, 29 U.S.C. § 173(d): “Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement * * * ” Commenting on this section the Supreme Court of the United States said, “That policy can be effectuated only if the means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play.” United Steelworkers v. American Mfg. Co., 363 U.S. 564, 566, 80 S.Ct. 1343, 1346, 4 L. Ed.2d 1403.

The detailed grievance procedure, with a final provision for arbitration, constitutes a code agreed upon by the parties to stabilize and achieve industrial peace in this industry. Under the law hewed out by these parties for themselves a unanimous decision at the joint conference committee level settles the issue, ends the strife, and eliminates the need for resort to the arbitration provision of Article 7, § 2(c). By the “common law” of this industry (see United Steelworkers v. Warrior & Gulf Navigation Co., supra, 363 U.S., 1. c. 579, 80 S.Ct. 1347), the arbitration provisions of Article 7, § 2(c) are resorted to only when the joint conference committee cannot satisfactorily settle any grievance or disagreement. From this transcript it is apparent that a deadlocked vote in the joint conference committee as a result of inability to reach an agreement is a situation in which the matter is referred to the arbitration procedure. Otherwise its decision, whether unanimous or by majority vote, is final and binding, and ends the matter. The unanimous vote of the joint conference committee, disallowing the grievances of these plaintiffs and settling the issue by merging the employees of Wade and Terminal on one seniority list, was an exercise of industrial self-government under the grievance machinery of this collective bargaining agreement. Under the rule of law these parties have agreed upon, the decision of the conference committee is final and binding, and this court has “no business weighing the merits of the grievance,” United Steelworkers v. American Mfg. Co., supra, 363 U.S., 1. c. 568, 80 S.Ct. 1343, 1346, for in so doing we would be usurping a function which is entrusted to the arbitration tribunal. Idem, 363 U.S., 1. c. 569, 80 S.Ct. 1343. In Humphrey v. Moore, 375 U.S. 335, 84 S. Ct. 363, 11 L.Ed.2d 370, decided January 6, 1964, a joint employer-employee committee settled a similar grievance under a collective bargaining agreement. The aggrieved employees resorted to a Kentucky state court for an injunction to prevent the decision of the committee from being carried out The state court of appeals granted a permanent injunction but the United States Supreme Court reversed, holding that the decision of a joint conference committee made under an identical grievance procedure, “reached after proceedings adequate under the agreement, is final and binding upon the parties, just as the contract says it is,” citing General Drivers, Warehousemen and Helpers Union v. Riss & Co., 372 U.S. 517, 83 S.Ct. 789, 9 L.Ed.2d 918. As pointed out in Williams v. Atchison, T. & S. F. Ry. Co., supra, 204 S.W.2d, 1. c. 697, it would be a useless procedure if the parties to a dispute, having participated in the proceedings until final disposition, were not bound by the decision of the committee, but could relitigate the same question in the courts. The federal cases decided in this developing area of labor law were recently reviewed in Bonnot v. Congress of Independent Unions Local # 14, (1964) 8 Cir., 331 F.2d 355, which further supports our conclusion that the court below ruled correctly.

The same considerations apply to plaintiffs’ action against Terminal, which was a party to the same collective bargaining agreement, and was named in the grievances filed under the grievance procedure. Cleared of any violation of Article 29(b) by the unanimous decision of the tribunal agreed upon by the parties, Terminal is not subject to this common law action for “conspiracy.” A conspiracy as such is not actionable. Gruenewaelder v. Wintermann, Mo.Sup., 360 S.W.2d 678, 688. Terminal’s conduct under Article 29(b) having been adjudicated lawful, a case of conspiracy to do such a lawful act would fail. Friedman Textile Co. v. Northland Shopping Center, Mo.App., 321 S.W.2d 9. Furthermore, there is no evidence of conspiracy. Plaintiffs, as adverse parties in this summary judgment proceeding under Supreme Court Rule 74.04(e), could not rest upon the mere allegations of their petition with respect to conspiracy. They were required to support them by affidavits setting forth specific facts showing that there was a genuine issue for trial. Plaintiffs filed no such affidavits.

Appellants claim that they are not bound by Article 7 § 2(e), and were not required to arbitrate under Article 7 § 2 (c), because of § 435.010, V.A.M.S., which provides as follows: “Any contract or agreement hereafter entered into containing any clause or provision providing for an adjustment by arbitration shall not preclude any party or beneficiary under such contract or agreement from instituting suit or other legal action on such contract at any time, and the compliance with such clause or provision shall not be a condition precedent to. the right to bring or recover in such action.” Chapter 435, V.A.M.S., pertains to commercial arbitration. It has no application to labor arbitration, Howard, Labor Management Arbitration, 21 Mo.Law Review 1, 1. c. 15, under the body of federal law which is being fashioned for the enforcement of collective bargaining agreements in recognition of "the central role of arbitration in effectuating national labor policy.” John Wiley & Sons v. Livingston, (1964) 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed. 2d 898. Appellants were bound by Article 7 § 2(e) and were required to arbitrate under Article 7 § 2(c). Humphrey v. Moore, supra.

Plaintiffs’ point that defendants should not be permitted to change their theory on appeal but are bound by their legal theory that the joint conference committee decision was an arbitration decision is without merit. Defendants have not sought to change the theory upon which they submitted their defense below.

Plaintiffs contend that the decision of the joint conference committee was not an arbitration decision which would operate as a bar to the prosecution of this action because neither the word “arbitration” nor the term “arbitration award” appears in Article 7 § 2(e), but this contention has been ruled otherwise. United Steelworkers v. American Mfg. Co., supra. They argue that the grievance machinery at levels below that provided for in Article 7 § 2(c) makes no provision for an impartial arbitrator, and expresses no intention that the provisions of Article 7 § 2(d) and (e) operate as an arbitration procedure or that decisions of the joint conference committee bar recourse to the courts. This point is not meritorious. Whatever the terminology employed or omitted from the agreement, the intention of the parties to carry out the policy of the Labor Act is clear; the decisions of their “chosen instrument for the definitive settlement of grievances” — provided for in Article 7 § 2 (d) and (e) — are enforceable, and “it is of course not open to the courts to reweigh the merits of the grievance.” General Drivers, Warehousemen and Helpers Union v. Riss & Co., supra.

No genuine issue of material fact exists, as plaintiffs claim. Plaintiffs did not respond, as required by Supreme Court Rule 74.04(e). As indicated above, they filed no affidavits. They failed to “set forth specific facts showing that there is a genuine issue for trial”; presented no evidence in support of their petition, and depended entirely upon the bare allegations of their petition. In these circumstances the court had no alternative but to enter judgment against plaintiffs, summary judgment being appropriate.

No error appearing, the judgment is affirmed.

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.


author: STOCKARD, Commissioner.

text:
    Everett J. BLACKBURN, Flora Blackburn Dempsey, Burnis S. Blackburn, Zella Blackburn Brooks and Luther Blackburn, Appellants, v. George David SPENCE, Sylvia Blackburn Steward, Jane Blackburn Stuller, Ora Blackburn Baughman, Robert R. Blackburn, Robert A. Smith and John Hancock Mutual Life Insurance Company, Respondents.
    No. 50488.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.

      Riddle, O’Herin & Newberry, Malden,, for appellants.
    McHaney, Billings & Welman, Kennett,. for respondents, George David Spence;. Robert A. Smith and John Hancock Mut. Life Ins. Co.
   STOCKARD, Commissioner.

Plaintiffs have appealed from a judgment adverse to them in their suit in equity to set aside a deed to certain real estate located in Dunklin County, Missouri.

David S. and Pansy Blackburn acquired the land in question as tenants by the entirety on November 9, 1938. The Black-burns had nine children; Everett, Flora,. Burnis, Zella and Luther who are plaintiffs-in this suit, and Sylvia, Jane, Ora and Robert who are defendants. The deed, which the plaintiffs seek to have set aside on the-basis that it is a forgery is dated January 1, 1945, and purports to convey the land from David S. and Pansy Blackburn to Sylvia Steward, one of the children. It is-admitted that Pansy Blackburn signed the deed; at least there is no contention that 3ier signature was forged. It was stipulated by the parties that the “signature of David S. Blackburn” appearing on the deed is not in his handwriting. On the reverse side of the deed is what purports to be an ■acknowledgment by the grantors taken on January 1, 1945, before Henry A. McKay in his capacity as a notary public. As a part ■of the jurat it is stated that his commission expired on April 11, 1945. It appears that the date of expiration may have been typed in as April 11, 1949 and that the year was marked out in ink and then written in as 1945. However, while Henry A. McKay had previously held a notary’s commission which expired on October 15, 1943, he was mot a notary public on January 1, 1945. He ■was subsequently granted a commission as ■a notary public effective April 12, 1945, which expired on April 11, 1949. There is •evidence that at the time the deed was ■signed it was delivered to Sylvia Steward, the grantee, and appellants do not contend ■otherwise.

At the trial the testimony of Sylvia Stew•ard and of Jane Stuller was admitted over the objection that they were incompetent to testify under the “dead man’s statute,” .Section 491.010 RSMo 1959, V.A.M.S. The trial court subsequently ruled that the testimony of Sylvia Steward was improperly admitted but made no ruling as to the testimony of Jane Stuller. In our statement ■of the facts concerning the execution of the deed by David S. Blackburn we shall make no reference to the testimony of •either of these witnesses.

David S. and Pansy Blackburn lived on the land, and in 1945 it was subject to a ■deed of trust in favor of The Prudential Insurance Company to secure a debt in the ■original amount of $3,600 but which had been reduced to approximately $2,500. When the Blackburns acquired the land in 1938 they took it subject to this deed of trust. The evidence justifies an inference that the Blackburns were not well off financially. Henry A. McKay testified that on January 1, 1945, Mr. and Mrs. Blackburn and their daughters Sylvia and Flora (Jane?) came to his office, and at the request of Mr. Blackburn he prepared a deed to the land on a regular printed form naming David S. and Pansy Blackburn as grantors and their daughter, Sylvia Steward, as grantee. Pansy Blackburn signed the deed in his presence. Mr. Blackburn was afflicted with palsy, and Mr. McKay testified that “He [David S. Blackburn] started to sign his name and he was nervous and shaking and couldn’t even hold the pen, and he said, ‘Is it all right for the girl to sign it,’ and I said, ‘No, not unless you hold her hand. You hold her hand,’ and that was Sylvia, and she was sitting over there and not even standing up there when the deed was fixing to be signed. I said, ‘Now, you hold Sylvia’s hand and I think it will be all right. I have seen it done that way.’ ”

The deed provided for a consideration of $4,000, and it was also provided therein that “Party of the second part assumes and agree_ to pay Ora Baughman and Jane Stuller the sum of Five Thousand and no/100, who hold a lein [sic] upon this land.” Mr. McKay stated that he saw Sylvia give her father some money, but he did not know the amount, and he added that he did not know what the payment was for. On January 2, 1945, the day immediately following the execution of the deed, Mr. Blackburn obtained a cashier’s check from the Bank of Kennett payable to The Prudential Insurance Company in the amount of $2,489.80, and on February 6, 1945, the deed of trust was released of record. On July 6, 1946, Mr. Blackburn opened an account and made a deposit of an undisclosed amount with the Cotton Exchange Bank at Kennett, and both he and Mrs. Blackburn signed the signature card. The money deposited was in cash and the bills were old and had “a peculiar odor about them * * * possibly like moth balls.” Mr. Blackburn handed the money to the teller “in small groups of currency which were obtained from various places about his person.” Mr. and Mrs. Blackburn continued to live on the land in what was called the home place, and in some of the following years Mr. Blackburn rented some or all of the land to others. In 1950 and 1951, Sylvia Steward and her husband moved on the land in a tenant house, and on some forms prepared at the Dunklin County Agricultural Stabilization Committee, Mr. Blackburn was listed as the landlord, and Amon Steward (Sylvia’s husband) was listed as the operator. The representative of this agency admitted, however, that ownership records were not kept up to date.

On November 1, 1951, Pansy Blackburn died, and at that time all the children who did not previously know about the deed to Sylvia obtained actual knowledge of it. The deed was recorded on February 17, 1951. Jane and Ora gave Sylvia a quitclaim deed on November 8, 1951, in which it was stated that “full payment” of the amount provided for in the deed from David S. and Pansy Blackburn to Sylvia had been received by Jane and Ora, and that the quitclaim deed was given in release of the lien mentioned in that deed. Everett P. Blackburn, one of the plaintiffs, testified that he learned about the deed on the day or the day before his mother died, but at no time thereafter during the following six years that his father lived did he talk to his father about it although he did visit with him. On March 18, 1945, Sylvia and her husband gave a deed of trust on the land to secure a note in the amount of $6,250, and on December 27, 1955, the land was sold to Mary Virginia Spence subject to this deed of trust. Everett Blackburn testified that he knew of this sale. Zella, Burnis and Flora, other plaintiffs, also testified, but none stated that they said anything to their father after learning in 1951 about the deed to Sylvia. Robert Blackburn, a defendant, testified that “shortly after” he got out of military service in 1946, his father told him that he had sold the land to Sylvia and had talked to him about buying the farm, and that he tried to buy it from Sylvia. He further stated that at one time he tried to borrow the money with which to buy it. He also testified that in 1951, his brothers, Everett and Burnis, asked him if he knew that their father had sold the farm to Sylvia, and that they told him that they had already talked to a lawyer. Subsequently, Robert also talked to the same lawyer. Robert testified that after the sale of the land to Sylvia, his father bought another farm, but neither the size of it nor the price paid is set forth. Subsequently, Mr. Blackburn sold that farm. Mr. Blackburn died in 1957 at age 83 while living in Florida with Sylvia. This suit was filed on August 11, 1958.

Appellants assert that the trial court erred “in admitting the testimony of Jane Blackburn Stuller concerning the transaction in which David S. Blackburn and Pansy Blackburn were purported to have sold their farm to Sylvia Steward,” and in our statement of the facts we have made no reference to testimony by her. They do not set forth the relief to which they believe they are entitled, that is, a new trial or only that we review the law and evidence without considering this testimony. Jane was present when the deed was signed in the office of Mr. McKay, In the deed it was provided that Sylvia should pay part of the consideration to Jane, and subsequently Jane executed a quitclaim deed to' Sylvia in which she acknowledged receipt of the money. The only testimony of Jane bearing on the issue of forgery was that her father’s name was signed by Sylvia at the direction of Mr. McKay with her father’s consent and while his hand was on Sylvia’s hand, and that Sylvia paid her father some money. In other words, the testimony of Jane did no more than corroborate that of Mr. McKay. It might be added that such testimony was against the interest of Jane because she stood to inherit a child’s share of the land if the deed be set aside. If upon all the other evidence, without considering the testimony of Jane, we reach the conclusion as the result of our de novo examination thereof that the deed is not subject to being set aside, it is immaterial whether the testimony was properly or improperly admitted, and our review shall be so limited.

Appellants assert that the trial court erred in rendering its judgment for the reason that “there was no evidence to support the court’s finding and judgment.” The theory advanced is as follows: The deed was not signed by David S. Blackburn and was not acknowledged or adopted by him as his signature; the deed was improperly acknowledged and therefore there was no presumption of its execution and genuineness; and respondents failed to sustain the burden of going forward with the evidence because “the testimony of Henry A. McKay, Jane Blackburn Stuller and Robert R. Blackburn was not worthy of belief.” As previously noted, we do not consider any of the testimony of Jane Stul-ler, and Robert was in the army at the time the deed was signed, and he did not testify to any fact pertaining to its execution.

We agree that the deed was not acknowledged. Henry A. McKay was not a notary public or other officer before whom an acknowledgment of a deed of conveyance is authorized to be taken. Section 442.150 RSMo 1959, V.A.M.S. However, except in certain limited situations, of which this is not one,' “an acknowledgment is not a requirement for the validity of a deed between the parties.” Robb v. N.W. Electric Power Cooperative, Mo., 297 S.W.2d 385, 389. David S. Blackburn would not be entitled to disaffirm the deed because it was not properly acknowledged, and appellants, who claim through him, cannot do so on that ground.

Appellants do not contend that a deed executed by David S. Blackburn in the manner described by Mr. McKay would not be valid. They apparently concede that it would. See Spaeth v. Larkin, Mo., 325 S.W.2d 767; and Woods v. Payne, Mo., 206 S.W.2d 355. Their evidence as to forgery went no further than to show that the name of David S. Blackburn on the deed was not in his handwriting, that one and one-half years later he did sign his name to a signature card at a bank, that Mr. McKay was not on January 1, 1945 a notary public, and that certain records in the Dunk-lin County Agricultural Stabilization Committee indicated that in 1950 and 1951 David S. Blackburn was the owner and Amon Steward the operator of the farm. Whether or not there was a presumption of execution and genuineness of the deed is not particularly important in this case. However, we should mention that the deed had been of record for more than ten years before it was offered and received in evidence at the trial, it was regular on its face, and Sylvia had claimed the land pursuant to such deed for ten consecutive years. Section 490.360 RSMo 1959, V.A.M.S., indicates that in such event such record “shall be prima facie evidence of the execution of such * * * deed, and of its genuineness and time of record.” But, assuming for the purposes of this opinion that there is no presumption of execution and of genuineness, as contended by appellants, whether the deed was forged remains an issue of fact, and before appellants are entitled to the exercise by a court of equity of its extraordinary power to set aside a deed, they had the burden of establishing by what is called clear, cogent and convincing evidence the basis, in this case forgery, for the exercise of such power. Spaeth v. Larkin, supra; Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59; Walton v. Van Camp, Mo., 283 S.W.2d 493. When we review the evidence in this case, without considering the testimony of Jane Stuller, and without taking into consideration any presumption of execution and genuineness by reason of recordation, we are compelled to the conclusion that appellants have not established forgery of the signature of David S. Blackburn by clear, cogent and convincing evidence. We shall now set forth the reasons for this conclusion.

Other than the fact that the handwriting is not that of David S. Blackburn, appellants offer no other evidence to indicate that his name was not placed on the deed at his direction and with his consent. On the other hand respondents’ evidence, consisting of the testimony of Mr. McKay, gave a reasonable explanation to this fact, and also, if believed, established that the name of David S. Blackburn was placed on the deed at his direction and with his consent. Appellants argue that Mr. McKay is not worthy of belief because the date listed by him for the expiration of his notary commission could not then have been known to him. This, of course, casts some question on his testimony. However, the trial court saw and heard this witness, and it did not disbelieve him. In addition, on the next day, which was the first day the banks were open, David S. Blackburn obtained a certified check to pay off the then existing deed of trust on the land. There is no explanation of where this money came from unless it was paid by Sylvia to Mr. Blackburn as part consideration for the deed. The payment by the grantee of money to the grantor, and the acceptance of the money by the grantor, is inconsistent with the theory that the signature of the grantor was forged. Also, part of the consideration, in fact more than half of it, was to be paid by Sylvia to Jane and Ora, and they subsequently acknowledged receipt of it.

We also are impressed by the fact that for at least six years before the death of their father each of the appellants had actual knowledge of the deed from their father to Sylvia. All the appellants but one testified, but not one stated that he had questioned his father about the deed or asked whether or not he had executed it. One admitted that he visited his father but never mentioned the matter to him. Before their father died, Sylvia sold the land, and this was known to at least some of the appellants, if not all, and still they did not mention the matter to their father. One of the appellants admitted that he consulted a. lawyer before the death of his father and was advised that “it would be best, the shape he [the father] was in” to wait until his father died before filing this suit. Although the issue of forgery of the signature of David S. Blackburn could have been settled easily and with dispatch while he was alive during the six years after appellants learned of the deed, they elected to wait until death sealed his lips and the “dead man’s statute” sealed the lips of the others present except Mr. McKay, and then base their suit on the theory that Mr. McKay was not worthy of belief. Although we do not base our conclusion on the theory of laches, see Rebmann v. Rebmann, Mo., 384 S.W.2d 663; and 30 C.J.S. Equity § 119, we do consider the circumstances we have related as having substantial bearing on the issue of whether appellants have sustained their burden of proof of forgery of the deed by clear, cogent and convincing evidence. When we consider all the evidence in this case, as previously outlined,, and the circumstances set forth, we conclude that appellants have failed to establish by the required degree of proof that the signature of their father on the deed dated January 1, 1945 in which Sylvia Steward was named grantee was forged.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    William S. STRADFORD, Appellant, v. Yevonniessia BLUEFEATHER, Respondent.
    No. 50427.
    Supreme Court of Missouri, Division No. 1.
    Dec. 14, 1964.
    Orville C. Winchell, Lebanon, for appellant.
    Paul E. Decker, Melvin E. Carnahan,. Rolla, for respondent.
   HIGGINS, Commissioner.

Plaintiff, William S. Stradford, brought an action against defendant, Yevonniessia Bluefeather, for $5,310 property damage and personal injuries, and defendant counterclaimed for $26,200 property damages and personal injuries, all said to arise from a collision between a 1953 Ford automobile driven by plaintiff and a 1962 Mercury automobile driven by defendant. Plaintiff’s petition was dismissed pursuant to stipulation and trial proceeded on the counterclaim. The jury found against defendant on her counterclaim; the court awarded her a new trial, and it is from that order that plaintiff appeals. The amount involved in the counterclaim is in excess of $15,000 and we have jurisdiction. Article V, Section 3, Missouri Constitution, V.A. M.S.; Section 477.040, RSMo 1959, V.A.M.S.

Appellant’s single point is that “The Trial Court erred in giving and reading to the jury defendant’s Instruction D-A at the request of the defendant. There was not sufficient evidence for the Trial Court to have submitted humanitarian negligence to the jury, taking into consideration only the evidence most favorable to the defendant.” This charge requires that we determine whether respondent made a sub-missible humanitarian case on failure to swerve. In making that determination we review the evidence from a standpoint favorable to respondent, give her the benefit of any part of appellant’s evidence favorable to her, give her the benefit of all reasonable inferences from all the evidence, and disregard appellant’s evidence unfavorable to her. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W. 2d 311, 312[1].

Viewing the evidence as indicated above, a jury reasonably could have found the facts to be as they appear in this statement. The casualty occurred about 7:30 p. m., February 24, 1962, on Nebraska Avenue near Theatre No. 4 on Fort Leonard Wood military reservation. It was dark and respondent had lights on her 1962 Mercury Monterey automobile as she drove south on Nebraska Avenue. “The post lights were on, on the movie; the ball game lights was on at the ball game. It was all lit up.” The theater was located on the east side of Nebraska Avenue and the ball park was located across from it. Respondent intended to turn from the west half or southbound lane of Nebraska, cross the east half or northbound lane, and park her car in a recessed parking area in front of the theater. She drove to a point in her southbound lane which was immediately west of the theater and just to her right of the center of Nebraska Avenue. She had her turn signal on and crossed the center of the street. While at an angle of about 45 degrees in the course of her turn and with her car partially on either side of the center of the street, she stopped because a taxi “darted” into her intended parking place. She remained stopped with as much as 75 per cent of the length of her car in the northbound side of the street for five to ten seconds “when all of a sudden there come a car * * * going like this (indicating), wiggle, you know, across the road. * * * you know, all the way across (indicating). So I can’t move. I just have to sit there. And all of a sudden this car, it hit me.” Respondent’s car was struck on its right front fender and near the door post by the right front corner of appellant’s 1953 Ford Customline automobile. There was evidence to the effect that there was as much as 25 feet of space between the front of respondent’s car and the taxi which had parked where respondent intended to park, and an equal amount of space behind her, and that, other than appellant, no cars were moving on the street. Nebraska Street was 69 or 70 feet in width, was generally straight, level, and with unobstructed view for 300 to 400 feet south of the collision. Weather conditions were good and the street was dry. Edward L. Smith, a cab driver, had his taxi parked in front of the theater but at the east edge of Nebraska and a little south of the recessed parking area. He saw respondent come southward on Nebraska Avenue, signal for a left turn, commence her turn, and stop with part of her car over the imaginary center line when a taxi pulled around him and into the parking place to which respondent was headed. He stated that she had to remain stopped because the taxi took her parking place. He heard appellant’s car and turned to the south and observed it coming north on Nebraska. The witness first saw appellant when appellant was about 350 feet south of the point of collision and judged his speed at 35 miles per hour. He also judged that there was “more than a car width” between the parked cab and respondent’s vehicle. He stated that appellant was never outside his own northbound lane; that he did not turn to the right or left, and struck respondent in the east half or northbound lane of the street. He also stated that there were no vehicles parked west of respondent’s car, and that there was nothing to obstruct a vehicle from driving through on the southbound portion of the street or between respondent and the parked taxi on the northbound side of the street. This witness also testified that one could see 350 feet southward from the impact; that there was no obstruction to prevent a driver going north, as appellant was driving, from seeing respondent and that he (appellant) could see this area and respondent. Appellant applied his brakes a little more than a car’s length from respondent and caused his wheels to skid up to the impact which occurred with the front of appellant’s car near the center of the street and the rear of the car well to the right of the center. Upon written interrogatory appellant testified:

“Q State whether or not the brakes, steering apparatus and lights of the automobile you were driving at the time of the accident * * * were in good mechanical condition. * * *
“A My car was in good operating condition as far as the brakes, steering and the lights were concerned.
“Q State whether or not there was any obstruction to your view of the defendant’s automobile as you approached the same prior to the accident * * *.
“A There was traffic moving along the roadway but otherwise, no other obstructions.”

It is our view that the foregoing evidence was sufficient for a jury reasonably to find each of the essential elements of a humanitarian case as set out in Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482, 484 [2].

Under the humanitarian doctrine no duty to act was imposed upon appellant until a situation of peril arose. Vietmeier v. Voss, Mo., 246 S.W.2d 785, 788 [4], In this case, respondent was stopped with her car at a 45-degree angle to the imaginary center line, partially on either side of the center of the road. In this situation she was necessarily in the path of any northbound traffic then on Nebraska Avenue. Respondent could reasonably be found in imminent peril when so stopped partly in appellant’s lane of travel with appellant bearing down upon her at the place where it became apparent to appellant that unless some act or thing intervened to interrupt the collision course thus existing, collision was inevitable and injury was reasonably certain, Yarrington v. Lininger, Mo., 327 S.W.2d 104, 109 [8-10] ; and the place or position of imminent peril was properly for the jury to determine in this case. Perkins v. Terminal R. Ass’n of St. Louis, 340 Mo. 868, 102 S.W.2d 915, 923 [13]; Kuehn v. Hahn, Mo., 380 S.W.2d 445, 450 [5].

We have said: “In the case of automobiles operating upon public streets and highways, the operator has imposed upon him the continuous statutory duty to exercise the highest degree of care at all times and all places thereon to keep a lookout for persons thereon and in every other respect.” Mayfield v. Kansas City Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116, 123-124 [11-16]. That duty extended to discoverable peril, Faught v. Washam, 365 Mo. 1021, 291 S.W.2d 78, 81 [2, 3]; and it applied to appellant here. The testimony of Edward L. Smith was that appellant could see respondent when appellant was 3501 feet from respondent. Having the duty to have been on the lookout and with the opportunity to see respondent, appellant thus had notice of respondent’s peril, Banks v. Morris, supra, and this issue was properly for the jury.

Having determined that a jury could reasonably have found respondent in a position of peril and that appellant had notice of that peril, what could the jury also find on the issue of appellant’s present ability to avert the collision with safety to himself and others?

We have already seen from the evidence that when respondent’s car was stopped partially in appellant’s lane of travel, appellant, in his car, could have seen respondent so stopped when he was still 350 feet away from collision with her. There was no direct evidence to show the distance in which appellant’s car, traveling at 35 miles per liour, could have been stopped or what distance was required in which to swerve •so as to avoid the collision. The evidence does show, however, that there were no obstructions to interfere with or prevent •swerving of appellant’s vehicle to either the left or right so as to avoid the collision; that the roadway was dry, and appellant’s steering and braking equipment were in .-good condition. Under these circumstances, a jury reasonably could find that .•appellant’s Ford automobile, within the distance of 350 feet, traveling at 35 miles •per hour, could have been swerved sufficiently and in sufficient time to have .avoided the collision. Danklef v. Armbruster, Mo.App., 91 S.W.2d 660, 663 [1, 2]; Spoeneman v. Uhri, 332 Mo. 821, 60 S.W.2d 9, 13 [10]; Cross v. Wears, Mo.App., 67 S.W.2d 517, 519 [3]; Brown v. Callicotte, Mo., 73 S.W.2d 190, 193 [1,2]; Perry v. Dever, Mo., 303 S.W.2d 1, 7 [13]; Daniels v. Smith, Mo., 323 S.W.2d 705, 709 [2, 3].

Wood v. Ezell, Mo.App., 342 S.W.2d 503, and Allen v. Hayen, Mo., 320 S.W.2d 441, cited by appellant, are not in point, and the issue of whether, in the exercise of the highest degree of care, appellant, by swerving within the distance available and with reasonable safety to himself and others, could have avoided the collision, was peculiarly a matter for the jury to determine. Terminal Warehouses of St. Joseph, Inc. v. Reiners, supra, 371 S.W.2d 1. c. 314 [3]. A jury reasonably could have found also that a failure to swerve was negligence and that such negligence caused the casualty.

There being evidence tending to prove all the elements of a humanitarian case, we hold that respondent made a submissible case on appellant’s alleged failure to swerve.

The order and judgment of the trial court granting a new trial to respondent is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

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

HENLEY, J., concurs in result


author: STORCKMAN, Judge.

text:
    STATE of Missouri ex rel. Frances P. STURM, John T. Sturm, John P. Sturm, and John T. Sturm, Guardian of Frances Jane Sturm, a minor, Relators, v. Emery W. ALLISON, Judge of The Circuit Court of Phelps County, Respondent.
    No. 50697.
    Supreme Court of Missouri, En Banc.
    Dec. 14, 1964.

      Cox, Cox, Cox & Moffitt, Harvey B. Cox, William A. Moffitt, Jr., St. Louis, Breuer, Northern & Crow, Eugene E. Northern, Rolla, for relators.
    H. Jackson Daniel, Jerome F. Raskas and Bernard A. Ruthmeyer, Jr., St. Louis, and Dewey Routh, Rolla, Guilfoil, Caruth-ers, Symington, Montrey & Daniel, St. Louis, Routh & Turley, Rolla, for respondent Emery W. Allison.
   STORCKMAN, Judge.

This is an original proceeding to prohibit the respondent circuit judge from enforcing an order alleged to be in violation of a mandate of this court. The question presented is whether this court’s opinion and mandate issued pursuant thereto precluded the respondent from undertaking for the second time to rule on a motion for new trial and from granting a new trial on a ground of the motion other than the one specified in the court’s first ruling.

The relators were the plaintiffs in an action filed in the Circuit Court of Phelps County to contest the will of Walbridge H. Powell dated April 1, 1959, and a codicil thereto dated November 6, 1959. The verdict of the jury was in favor of the validity of the will but found that the paper writing dated November 6, 1959,-was not a valid codicil to. the will of Mr. Powell. .Judgment- was entered accordingly and thereafter the proponents-defendants filed their motion for judgment in accordance with their motion for a directed verdict or, in the alternative, for a new trial.

The respondent took up the defendants’ motion for judgment or, in the alternative, for a new trial, set aside the verdict of the jury and 'further ruled and ordered that “defendants’ Motion for Judgment in Accordance with- their Motion for directed verdict at close of case [be] sustained^ and Judgment [be] rendered that said codicil is the codicil to Last Will and Testament of Walbridge H. Powell, deceased; and further ordered that if this judgment be reversed on appeal, then defendants’ Motion for New Trial as to said codicil [be] sustained and defendants [be] granted new trial thereon. It is further ordered that this judgment is on the ground that jury verdict is not supported by substantial evidence; and in event new trial is given, same is on same ground.”

- In due course the plaintiffs (relators herein) filed their notice of appeal to this court which notice stated that the plaintiffs “hereby appeal to the. Missouri Supreme Court from the order of this Court setting aside the verdict and judgment heretofore entered in favor of plaintiffs and sustaining defendants’ Motion for Directed Verdict at Close of Case and entering judgment that said codicil is' the codicil to the last will and testament of Walbridge H. Powell, deceased, and further appeals from the order sustaining defendants’ Motion for New Trial and granting defendants a new trial if this Court’s judgment that said codicil is the codicil to the last will and testament of Walbridge H. Powell, deceased, is reversed on appeal”. Italics added.

This court did reverse the order and judgment of the trial court and remanded the cause with directions to reinstate the verdict and judgment originally entered thereon. . The court’s opinion is Sturm v. Routh, Mo., 373 S.W.2d 922, to which reference is rnade for .all matters considered and decided. For present purposes, it is sufficient to say that this court found that “substantial evidence was adduced which supported the verdict of the jury” on the issue of whether the testator possessed sufficient mental capacity to execute the codicil. 373 S.W.2d 928. The concluding paragraph of the opinion is as follows: “For the reasons heretofore discussed the judgment is reversed and cause, remanded with directions to reinstate the verdict and judgment to the- effect that the paper writing dated November 6, 1959, is not the codicil to the last will and testament of testator.” 373 S.W.2d 930.

The mandate of this court, among other things, stated: “It is further considered and adjudged by the. Court that the said cause; be remanded to the said Circuit Court of Phelps County for further proceedings to be had therein, in conformity with the opinion of this Court herein delivered”. After the mandate was filed in the circuit court, the respondent judge entered this amended order and judgment on March 6, 1964: “Mandate of Supreme Court ordered of record and verdict and judgment to the effect that paper writing dated November 6, 1959, is not the codicil to the Last Will and Testament of testator is reinstated. Defendants granted new trial on ground jury verdict finding codicil dated November 6, 1959 to the Last Will and Testament dated April 1, 1959, of Walbridge H. Powell, deceased, is against the greater weight of the credible evidence.” The relators promptly filed their petition for a writ of prohibition and our provisional rule in prohibition was issued.

The issue presented is whether the respondent judgé had jurisdiction on remand to consider anew the alternative motion for new trial and to grant the defendants a new trial on another ground. Essentially, the respondent’s theory is that the respondent’s first attempt to rule on the defendants’ alternative motion for a new trial was without legal effect, that the effect of the ruling was not decided on appeal, that the defendants were entitled to have the motion ruled, and on remand the circuit court was vested with jurisdiction to dispose of the motion and to exercise its discretion in doing so. This theory is based on the contention that the alternative motion for a new trial did not specify as one of its grounds “that [the] jury verdict is not supported by substantial evidence” and since the ruling was made more than thirty days after judgment was entered the “respondent’s ruling on the alternative motion for a new trial was a nullity, the question was left open until this case was remanded to respondent by the Supreme Court.” Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, is no authority for respondent’s contention because, among other reasons, the motion for new trial in the instant case sufficiently specifies the ground upon which the new trial was first ordered.

In their aftertrial motion for judgment, the defendants requested that the verdict of the jury be set aside and that judgment be rendered in accordance with their motion for a directed verdict. The refusal to direct the verdict was also one of the grounds specified in the alternative motion for a new trial. This specification is as follows:

“(d) Because the Court erred in refusing defendants’ Motion for a Directed Verdict on (1) the issue of undue influence, and on (2) the issue of unsound mind at the close of all the evidence.”

The motions for a directed verdict alleged that the plaintiffs “have introduced no evidence which would tend to show that the said Walbridge H. Powell” was of unsound mind or to show that he did not execute the paper writings in the manner required by law. The allegation that there was a failure of proof was equivalent in legal effect to an assertion that no substantial evidence had been adduced and that a jury verdict finding mental incapacity or .undue influence would not be supported by evidence. Cupples Hesse Corporation v. State Tax Commission, Mo., 329 S.W.2d 696, 701-702 [14]; State v. Whitaker, Mo., 275 S.W.2d 316, 319 [10, 11]; State v. Miller, 318 Mo. 581, 300 S.W. 765, 766 [3], The respondent evidently so understood the : effect of the assignment of error in view o-f , the language used in ruling both the motion for judgment and the alternative motion for a new trial. It must have been so understood by the parties because the issue litigated and determined in the supreme court was whether there was substantial evidence to support the verdict of the jury. The statement in the motion for new trial that the court erred in refusing to sustain the motion for a directed verdict could only mean that the defendants were alternatively requesting a new trial on the ground that the jury verdict was not supported by substantial evidence. The ground upon which the motion was first ruled and a new trial granted was sufficiently specified.

Since it is the policy of the law to dispose of motions for judgment and for a new trial together, it was the duty of the trial court, after setting aside the verdict and judgment and entering judgment for the defendants, to rule the motion for new trial in the alternative. State ex rel. and to Use of Hickory County v. Davis, Mo., 302 S.W.2d 892, 897 [8]; Dawson v. Scherff, Mo., 281 S.W.2d 825, 830-831 [5]; S.Ct. Rule 72.02, V.A.M.R.

Where the trial court grants a new trial on specified grounds, it in effect overrules all other grounds stated in the motion for new trial. Burnett v. Johnson, Mo., 349 S.W.2d 19, 24 [6]; Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, 32 [11] ; Heggeman v. St. Louis Public Service Co., Mo.App., 255 S.W.2d 99, 102 [1].

Where the grounds specified by the trial court for granting a new trial are shown to be inadequate on appeal, the burden is on the party who obtained the new trial to demonstrate that there are other grounds in the motion for new trial sufficient to uphold the order. Overton v. Tes-son, Mo., 355 S.W.2d 909, 913 [5]; White v. St. Louis Public Service Co., 364 Mo. 111, 259 S.W.2d 795, 798 [2]; Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 537 [1,2]; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678, 683 [8]; Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548, 554 [14]; S. Ct. Rule 83.06(b), V.A.M.R.; § 510.330, RSMo 1959, V.A.M.S. Moreover, where the order granting a new trial does not so specify, it shall never be presumed that the new trial was granted on discretionary grounds. S.Ct. Rule 83.06(c). The defendants as the respondents on appeal did not undertake to justify the judgment and ruling of the trial court on any ground other than lack of substantial evidence to support the verdict. See Sturm v. Routh, Mo., 373 S.W.2d 922.

When this court ruled there was substantial evidence to support the verdict, it necessarily invalidated the reason assigned for sustaining the alternative motion for new trial as well as the reason for rendering judgment in accordance with the motion for a directed verdict. No complaint was made in this court that all issues had not been decided. The remand with directions to reinstate the verdict and judgment entered thereon must be viewed in that light. Where a case is remanded, the opinion of the appellate court is a part of the mandate and further proceedings in the trial court should be in accordance with the opinion rendered whether or not the trial court is expressly so admonished. Sebree v. Rosen, Mo., 374 S.W.2d 132, 136 [2]; Abrams v. Scott, 357 Mo. 937, 211 S.W.2d 718, 721 [1]; Dalton v. Johnson, Mo.App., 341 S.W.2d 596, 600 [3].

Where the supreme court remands a cause with specific directions, the trial court is required to render judgment accordingly and has no power to modify, alter, or amend, or in any manner to depart from the opinion and mandate of the supreme court, and proceedings in trial court contrary thereto are void. Morrison v. Caspersen, Mo., 339 S.W.2d 790, 792 [2]; Prasse v. Prasse, 342 Mo. 388, 115 S.W.2d 807, 809 [5]; Scheufler v. Lamb, Mo., 169 S.W.2d 913, 914 [2]; 5 Am.Jur.2d, Appeal and Error, § 991, p. 417.

The previous opinion of this court disposed of all issues necessary to a holding that the trial court erred in sustaining the defendants’ motions for judgment and for a new trial. The directions on remand were specific, and the respondent was without jurisdiction to rule further on the motion for new trial and his acts purporting to do so are void. The respondent’s sole jurisdiction is to conclude the case in accordance with this and the previous opinion.

The provisional rule in prohibition is made absolute.

All concur.


author: EAGER, Judge.

text:
    Dorothy RUSSELL, Appellant, v. Bob Dee CASEBOLT and Vallie Marie White, Respondents.
    No. 49716.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.

      Edward L. Simmons and Simmons & Buford, Kansas City, for appellant.
    Brown, Douglas & Brown, R. A. Brown, St. Joseph, for respondent Vallie Marie White.
    Vernon N. Kneib, St. Joseph, for respondent Bob Dee Casebolt.
   EAGER, Judge.

This is, or was, a suit for personal injuries, and it suffered a very unusual ending. At the conclusion of all the evidence, and on June 28, 1962, the Court overruled an oral motion of one defendant to dismiss, and sustained the motion of the other defendant for a mistrial, resetting the case. On July 10, 1962, the Court reconsidered the motion to dismiss, sustained it, and dismissed plaintiff’s petition with prejudice. The stated grounds were: “ * * * because plaintiff testified in this Court that her prior inconsistent statements given under oath by deposition were untrue and that she knew such statements to be false at the time she made them; The Court further finds that the admitted false statements did pertain directly to the material facts and issues to be determined in this cause, and plaintiff’s explanation that she was instructed by her former lawyer to give untrue testimony, whether true or false, does not justify this Court in condoning admitted perjury referring to the factual issues to be determined; * * In other words, the Court entered a final judgment of dismissal with prejudice, after a mistrial had been granted for other reasons, because it found that plaintiff had committed perjury. Plaintiff has appealed. This presents a somewhat novel question of procedure.

We shall not need to state the facts in great detail, for we do not propose to determine anew whether plaintiff did or did not commit perjury. Plaintiff, a married woman in her late forties with ten children, worked at a food processing plant in St. Joseph, and lived in a small town east of St. Joseph. She obviously had little education. On November 2, 1960, she and two women co-workers were headed east on Highway 36 about eight or ten miles east of St. Joseph. A Mrs. White was driving and owned the car. The passenger in the center of the front seat was Bessie Myrick (now McClung). Either on, or just west of a bridge known as the Third Fork Bridge, they collided in more or less of a glancing impact with a car being driven west by the defendant Bob Dee Casebolt. After the original collision Mrs. White’s car struck a portion of the bridge. Plaintiff received very substantial injuries, which we shall not need to detail. . Mrs. Myrick was also injured. The plaintiff employed Mr. Ralph Hulse of St. Joseph to file suit for her against Casebolt. While plaintiff was in the hospital in St. Joseph Mr. Hulse procured (through another lawyer) a statement from her on behalf of Mrs. White’s insurer and later, according to his testimony, Hulse told plaintiff upon her request that he could represent her if she was making no claim that his insured, Mrs. White, was at fault. Mrs. McClung also had Mr. Hulse file suit for her, against Casebolt alone. After depositions were taken both plaintiff and Mrs. McClung, supposedly having been told by a lawyer that there was a conflict of interests, discharged Mr. Hulse, employed new counsel, and filed new suits in Daviess County against both Casebolt and' Mrs. White. The present trial was of one of those suits. Depositions had also been taken in the new suits. By the time plaintiff’s case went to trial she had given a signed statement and two depositions.

At the trial various inconsistencies developed in the testimony both as between different witnesses and in plaintiff’s own testimony. The principal claims of negligence against Casebolt were that he was operating his car partially on the wrong (south) side of the road, and that he was driving too fast. The claims against Mrs. White were that she failed to swerve or slacken her speed, and also that she drove partially on the wrong side of the road. Plaintiff’s counsel not only produced the plaintiff as a witness in her own behalf, but also Mrs. McClung, Mrs. White and Casebolt. Mrs. White testified: that she was traveling 45 to 50 miles an hour, entirely on her own side of the road at all times, and that, at the time of the collision, the two left wheels of Casebolt’s car'were on her side of the road; that the collision occurred on the bridge; that she first saw Casebolt’s car when she was west of the bridge and that Casebolt was then just coming on the bridge. Mrs. McClung testified: that Casebolt, when east of the bridge, seemed to be moving back and forth between his own lane and the south lane; that she first saw him when each car was perhaps 400 feet from the bridge; that there were cars in between them; that Mrs. White was near the center line, but she did not know just where her car was at the time of the collision; that she (Mc-Clung) yelled just before the collision that “We are going to hit”; that she felt no braking of the car and that she could not say whether Mrs. White swerved. This witness was cross-examined strenuously from her statement and depositions, and substantial inconsistencies developed. She had previously said that Casebolt straightened up about the time he came on the bridge and then seemed to cut across the road and never swung back. Mr. Casebolt testified that the collision occurred about 100 feet west of the bridge and that his car was entirely on its own side; that he was probably traveling 60 miles an hour; that immediately prior to the collision he had glanced down at the instrument panel and when he looked up the other car was in front of him. The necessary inference from his testimony was that the other car had angled over on his side. Shortly before the accident, Casebolt had been arrested by the Highway Patrol for driving at 77 miles an hour and he was later convicted of that offense.

Plaintiff’s testimony developed numerous inconsistencies. On direct examination she testified briefly that she saw a car on the other side of the bridge which swerved back and forth a time or two; that she did not pay much attention to it until her companion yelled: “We are going to get hit”; that she was on the right side and was not looking at the road; that she was knocked unconscious; that she heard no horn and does not know whether their car swerved. On cross-examination she testified : that each car was about a quarter of a mile from the bridge when she first saw Casebolt’s car; that she did not know where either car was with reference to the center line at the time of the collision; later, that she was not positive about the distances; that once or twice she saw Casebolt get on the south side; that she did not know Mrs. White’s speed, • although she had previously said it was “about 45”; she admitted that she testified to other distances in her deposition, and that she had said that when she saw Casebolt the second time “pretty close to where he hit us” he was clear over on our side of the road; at the trial she testified that she did see him cross the center line. Finally, the following occurred: “Q The next question (referring to the deposition) was, ‘Was the Casebolt car on the bridge at that time?’ Answer, ‘Yes, it was.’ A. I dont know whether it was'or not. Q. You have testified to it? A. Sure I did, but I lied. Q. You dont know where the Casebolt car was now? A. I dont know. Q. Why did you say it was on the bridge? A. Because you probably had me all mixed up.” At one point plaintiff testified that at the first deposition “We said just what Mr. Hulse told us to * * Mr. Hulse testified in considerable detail and specifically denied that he told plaintiff to say anything except to tell the truth.

It is impracticable here to go into all the intricacies of this cross-examination or to discuss the theories of negligence or non-negligence argued in Respondent White’s brief. It will be sufficient to quote the summary of plaintiff’s evidence as made by Mrs. White’s counsel on pages 27-28 of their brief as follows: “Russell first had White going at an unknown speed and then had her going 45 miles an hour. She had the two cars, when they first saw each other, a half a mile apart, and then only a 100 to 200 feet apart. She never saw Casebolt come over the center line and then she did see him come over the center line. She had White doing everything she could' to protect herself and then she wasn’t. She had White on the south of the center" line at all times and then she didn’t know where she was. She had the collision first at one point and then at another. These contradictions were never explained.” Then counsel adds: “In the final analysis, they' were not only so glaring as to conclusively show that Russell testified untruthfully, but she even admitted that she had lied and lied under oath.”

Robert H. Wright, who was riding with Casebolt, testified corroborating the defense that Casebolt was on his own side of the road, and that Mrs. White crossed over to the wrong side. We have related all this seemingly unnecessary detail simply to furnish some background for the subsequent trial proceedings and for our ruling.

At the close of the evidence counsel for Mrs. White made an extended oral motion to dismiss the case as to both defendants, on the ground that plaintiff had admitted perjury, that she was in Court with “unclean hands,” that she was engaged in an unlawful and criminal proceeding, and that the Court should not aid her. There was no motion for a directed verdict. The motion to dismiss was overruled. The Court then proceeded to reconsider its ruling on a prior motion for a mistrial made by Case-bolt’s counsel on account of prejudicial evidence showing that Casebolt’s insurer had made settlement offers to plaintiff, Mrs. White and Mrs. McClung (apparently jointly) and that there was a dispute as to “who was entitled to how much.” The Court had previously ordered that testimony stricken and had instructed the jury to disregard it. Upon reconsideration of the motion, however, a mistrial was declared, the jury was discharged, and the case reset for a future date.

Twelve days later the Court reconsidered and sustained the motion to dismiss and dismissed plaintiff’s petition with prejudice upon the ground that plaintiff had knowingly and admittedly made false statements under oath as to material matters by deposition. That order constituted a final judgment.

The Points of the plaintiff-appellant are, im essence: (1) that the action of the Court was without authority or precedent and violated plaintiff’s constitutional right to a jury trial; (2) that there could be no “perjury” without a conviction or a plea of guilty, since perjury is a crime; (3) that plaintiff did not, in fact, lie; (4) that there was no change of any material fact or material change in testimony; and (S) that defendant White had waived all right to object by not making timely objections or asking that the case be dismissed while the evidence was being heard.

In order to put the matter in its proper perspective, we also note here the Respondent White’s Points. They are: that the 'Court’s action was proper because (a) the ■doctrine of “unclean hands” was applicable; (b) the doctrine of equitable estoppel was also applicable; and (c) the glaring inconsistencies in plaintiff’s testimony precluded reliance thereon. The other points go merely to negative the like points of plaintiff.

Supplemental memorandum briefs were requested and filed, supposedly to assist in solving the procedural problem involved. However, we are cited to no case where similar action or even analogous action has been taken.

We repeat here that we shall not attempt to determine anew whether plaintiff committed perjury. She was guilty of many contradictions and inconsistencies; we frequently see somewhat similar situations, perhaps not so exaggerated. Her statement that she had “lied” was unusual, to say the least. We might conjecture that she merely meant that she was mistaken, except for the fact that she sought to lay the blame for some of the contradictions upon her former attorney. One pertinent feature is that after Mrs. White was added as a party, certain of the evidentiary requisites to liability were changed. Some of the matters complained of now consisted obviously of confusion, — confusion about distances, the exact positions of cars, etc. Some of the differences in plaintiff’s testimony may have been intentional and simply false. An extremely conscientious trial judge felt that they were. We do not reverse him on his findings, but we do find the procedure followed to be improper.

The motions provided for in our Code of Civil Procedure, § 509.290, are intended to dispose of actions which are “groundless on the uncontroverted facts,” Burke v. City of St. Louis, Mo., 349 S.W.2d 930, 932, and they do not operate to “raise an issue involving a real controversy over a vital fact issue concerning the merits of a plaintiff’s claim.” Burke, supra; Pogue v. Smallen, Mo., 285 S.W.2d 915, 917; Roberts v. Epicure Foods Co., Mo., 330 S.W.2d 837, 840. Certainly, the grounds upon which this action was dismissed were based upon “allegations of facts which controvert the merits of the claim of the plaintiff.” Pogue, supra.

We do not hold that a court may not sustain a motion for a directed verdict (or an after-trial motion based thereon, Rule 72.02, V.A.M.R.) where the plaintiff’s claim rests solely upon his or her testimony and that testimony is so obviously perjured or so contradictory “as to preclude reliance thereon,” Boehm v. St. Louis Public Service Co., Mo., 368 S.W.2d 361, 364, although such action would be unusual. See also: Crandall v. McGilvray, Mo., 270 S.W.2d 793, 800; Foerstel v. St. Louis Public Service Co., Mo.App., 241 S.W.2d 792. In such event, however, the verdict would be directed because there was no substantial evidence upon which a jury might rely, and hence nothing to justify a submission. Such is not our case. There was other evidence here, and there was no motion for a directed verdict. So also, we have a Rule, 78.01, which permits the granting of a new trial for perjury which occasions an improper verdict. We have no such situation here, for there was no verdict. And we should note the rather extended discussion of that subject in the case of Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, upon facts somewhat analogous to ours. There the Court concluded: that ordinarily the contradictions and inconsistencies of a witness go only to his credibility and do not destroy his testimony; that estimates and opinions are generally not binding; and that where the prior contradictory evidence is introduced the jury has full opportunity to evaluate the evidence. We again recognize that in the present case there was probably more reason for a finding of perjury, but we also repeat that the real problem here is one of procedure.

We hold that the trial court, conscientious though it undoubtedly was, was without authority to dismiss the action with prejudice for the stated reason that the plaintiff was guilty of perjury. We have not excluded the possibility of a directed verdict, although it would seem that there was other evidence sufficient for a submission, even if all of plaintiff’s testimony were disregarded. We are not impressed with the argument that the order and judgment should be upheld on the doctrine of “unclean hands.” That is, as stated, an equitable doctrine and it is doubtful that the Missouri Courts have ever applied it at law. The cited case of Aetna Casualty & Surety Co. v. Lindell Trust Co., Mo.App., 348 S.W.2d 558, is wholly inapplicable on its facts; it merely states that there is now “but one form of action.” That is true, but as pointed out in Kesinger v. Burtrum, Mo.App., 295 S.W.2d 605, and Fowles v. Bentley, 135 Mo.App. 417, 115 S.W. 1090, although the distinction in the forms of pleading has disappeared under our Code, the distinctions be tween legal and equitable causes of action and in the principles governing each, have not been abolished but are preserved and are sharply defined. The cited case of Hotel Phillips, Inc. v. Journeyman Barbers, etc. (D.C.Mo.), 195 F.Supp. 664, recognized the principle in a suit under the Sherman Anti-Trust Act where plaintiff had accepted the fruits of the supposed price fixing. The case was either wholly or partially in equity, for injunctive relief was sought. The case of Ogden v. Auer, Mo., 184 S.W. 72, also cited, was in equity and it was expressly so stated. In the case of Avery v. Central Bank of Kansas City, 221 Mo. 71, 119 S.W. 1106, the Court did, as suggested, make the statement that it was against public policy to fritter away the time of the courts in indemnifying those who suffered loss “by reason of violation of law.” However, the basic holding was that there is no rule of law requiring contribution between wrongdoers or tort feasors; the case involved various ramifications of a bank liquidation, and it would seem that it was predominantly an equity case. We do not consider the case of Slocum v. Slocum, 37 Misc. 143, 74 N.Y.S. 447 (a suit for annulment with a counterclaim for divorce) as at all persuasive. We find no justification in Missouri law for applying the equitable doctrine of “unclean hands” to enforce the dismissal of an action at law for personal injuries upon the grounds stated here. The inapplicability of the doctrine generally in cases at law is discussed in Birk v. Jackson, Tex.Civ.App., 75 S.W.2d 918. We do not preclude the possibility of a dismissal upon the theory that the very inherent nature of a case is illegal and against public policy.

There are other and independent remedies for relief against perjury, — if and when it is found or suspected. The witness may be cited for contempt and a hearing held, with appropriate punishment if justified; or, the matter may be referred to the prosecuting attorney of the county for appropriate criminal action, if that is found to be justified.

Counsel also suggest that plaintiff's action should have been barred upon the theory of equitable estoppel. While that doctrine is often recognized at law, we are cited to no instance where it has ever been applied in a situation even faintly analogous to this one, and we hold that the action of the trial court was not justified on that theory.

We have already discussed those situations where contradictions and inconsistencies are such as to deprive a witness’ testimony of all probative force (Respondents’ Point 1C). If that contention was to be made, it should have been raiséd by a motion for a directed verdict. In Respondents’ Supplemental Memorandum counsel argue that the Court, under Rule 75.01, retains control over all judgments for a thirty-day period after their entry and may “vacate, reopen, correct, amend or modify” its judgment. To that end they cite several cases. The principle is well recognized and it is unnecessary to discuss the cases so cited. Counsel also discuss whether this was a final or ari interlocutory order; in that connection we suppose that they are referring to the original order overruling the oral motion to dismiss at the close of the evidence. Certainly that order was not a final judgment, arid the case stood entirely undisposed of; when the mistrial was granted, the order merely disposed of that trial, and not the case. After granting a mistrial and discharging the jury the Court could not possibly, as a practical matter, reverse, vacate or modify that order, for the jury was gone and that trial was over.

The first judgment entered in this case was the order of July 10, 1962, dismissing the case with prejudice. There was never any attempt to vacate or modify this, the only judgment ever entered. Counsel say (citing cases) that it is immaterial whether the original order overruling the motion was an interlocutory order or a final judgment, for in either event the Court could vacate or modify it within thirty days. While the Court may have had, theoretically at least, the power to reconsider its order within thirty days,- — we hold that it did not have, either at the original date or later, the power and authority to dismiss the case with prejudice and thus to enter a final judgment, for the causes stated. Our procedure simply does not permit it. Thus, the power to vacate or modify is wholly immaterial.

The defendant Casebolt has not been represented on this appeal. He was present in person and by counsel at the trial and, indeed, it was upon.his counsel’s motion that the mistrial was granted. The order and judgment dismissing the petition with prejudice constituted a . disposition of the case as to all parties, aiid it was final unless arid until reversed. Casebolt’s absence here in no way impairs our, jurisdiction to dispose of the appeal. If that were not true, any appeal could be frustrated by the failure of a respondent to appear.

The order and judgment dismissing plaintiff’s petition with prejudice is reversed, and the cause is remanded for further proceedings consistent with this opinion.

All of the Judges concur.