author: HIGGINS, Commissioner.

text:
    Gerald L. FOX, Individually, James M. Canavan, Francis A. Dunnagan, Normal H. Halls, Edward E. Haverstick and Alfred Lee Shapleigh, II, Copartners, Doing Business Under the Name of Smith-Moore and Company, Respondents and Conditional Appellants, v. John G. BURTON, Appellant, and David A. Blanton, Jr., Conditional Respondent.
    No. 51506.
    Supreme Court of Missouri, Division No. 1.
    April 11, 1966.
    Motion for Rehearing or for Transfer to Court Bn Banc Denied May 9, 1966.

      Raymond F. McNally, Jr., St. Louis, for appellant.
    Lon Hocker, Stephen M. Boyd, St. Louis, for respondents; Hocker, Goodwin & Mac-Greevy, Bryan, Cave, McPheeters & Mc-Roberts, St. Louis, of counsel.
    Flynn, Parker & Badaracco, Norman C. Parker, St. Louis, for respondent Blanton.
   HIGGINS, Commissioner.

In this action for broker’s commission plaintiffs had verdict and judgment for $51,632 against defendant John G. Burton, and he seeks to be relieved from that judgment on this appeal. There is also a “conditional” appeal by plaintiff Gerald L. Fox from a judgment in favor of defendant David A. Blanton, Jr., on Fox’s alternative count against Blanton for $73,200 for reasonable value of services.

Count I of the petition alleges: Plaintiffs are engaged in the brokerage business in St. Louis, Missouri, and plaintiff Gerald L. Fox is associated with the firm of Smith-Moore & Company in which the other plaintiffs are partners, Fox’s fees being divided 60 per cent to Fox and 40 per cent to Smith-Moore & Company. In 1958 Fox was employed by defendant David A. Blan-ton, Jr., to obtain a buyer for The Blanton Company for a commission which, in March 1961, was agreed would not exceed five per cent of the sale price. From the time of his employment until May 11, 1962, Fox attempted to procure a buyer for Blanton and, among other prospects, contacted Drew Chemical Company in the spring and summer of 1961 but was unable to interest Drew sufficiently at that time to consummate a sale. On May 11, 1962, Blanton wrote to Fox:

“Dear Mr. Fox:

“This is to confirm our recent conversation with respect to the sale of the assets of The Blanton Company.

“Over the past year you have been endeavoring to interest some responsible buyer. Since none has developed we have agreed that you will exert no further efforts.

“Our arrangement has therefore been terminated with no obligation upon either of us to the other.

“Just for our records, please sign and return the enclosed copy of this letter.

“Sincerely, /s/David A. Blanton, Jr., President.’'

The petition continues: On June 28, 1962, Fox’s contact at Drew telephoned Fox about acquisition of Blanton which Fox reported to Blanton and asserted his claim to a fee on any sale of Blanton to Drew since he had interested Drew in Blanton prior to the termination of his agency as Blanton’s broker. Blanton replied that he had employed defendant Burton as broker and requested that Fox approach Burton with respect to the fee in the event of a sale of Blanton to Drew. “Accordingly (paragraph 9), on or about June 28, 1962, Fox spoke to Burton on the telephone and they agreed that in consideration of Fox’s waiving his claim against Blanton for the full commission, in the event of a sale to Drew Chemical Company, they would in that event share equally the commission to be earned under Burton’s contract with Blanton.”

Count I concludes with the allegation of a sale of Blanton to Drew in late October or early November, 1962, for $2,500,000, and that Burton earned a commission of $105,000, of which plaintiffs are entitled to one half, or $52,500.

In Count II Fox alone sues defendant Blanton alleging “In the alternative, and in the event it shall be held that the contract alleged in Count I * * * was not entered into, or was invalid,” that Fox was the procuring cause of the sale and that the reasonable value of his services is $125,000, in which his interest is $3,000 for expenses plus 60 per cent of the remainder. (The Smith-Moore & Company partners did not join in this count due to personal friendships with Blanton.)

Burton denied the agreement alleged in paragraph 9 of the petition. He admitted a commission of $103,264 and answered further that by writing “Approved” on the letter of May 11,1962, from Blanton to Fox, Fox abandoned his employment with Blan-ton and any claims for commission for services he may have performed, and that the alleged agreement was without any consideration.

The evidence shows that Gerald L. Fox had been in the brokerage business since 1939. He had known David A. Blanton, Sr., David A. Blanton, Jr., and The Blanton Company since 1948. Sometime after the death of David Blanton, Sr., in 1957, defendant Blanton asked Fox to attempt discreetly to find a buyer for the company. He made a number of efforts with several prospective purchasers, some of whom sent representatives to visit the plant. He did some traveling and incurred expenses of $3,000. Fox’s commission was not to exceed five per cent, an arrangement which was confirmed in writing March 16, 1961. Fox first thought of Drew Chemical Company as a prospect when he read an article reporting that Lehman Brothers, a New York investment house, had purchased the Drew Company which engaged in vegetable oil refining, as did Blanton. “I immediately contacted Dave (defendant Blanton) and we discussed * * * whether * * * they might be a very fine prospect * * *. And we decided that I should go to New York and contact them, which I did.” During the week of April 24, 1961, he met with representatives of Lehman Brothers, including Mr. Donald Loomis, head of the legal department, and Mr. Alan Sternlieb of the industrial department. Fox quoted a price of $4,800,000, gave them certain information on the company, and arranged to send additional information. Negotiations went along, “off and on for, I would say, several months. And then there was a period in which Lehman Brothers indicated to me there was no way they could fit it in with the Drew Company * * He continued his attempt to find a buyer until the spring of 1962 when his agency was terminated by a meeting between Fox and Blanton in which Blanton proposed that, in order to make other arrangements, “we would mutually agree to give up the association as far as obtaining any additional inquiries.” This meeting led to the letter of May 11, 1962.

John G. Burton had been engaged for 16 years as a “business finder” under the name of John G. Burton & Associates in St. Louis. In April 1962, Blanton called on him upon the recommendation of an officer of Blanton’s creditor, the First National Bank. On May 11, 1962, Blanton and Burton entered into a contract whereby Burton was given exclusive agency to sell The Blanton Company. Blanton advised Burton of the termination of Fox’s agency and later sent him a copy of the May 11th letter showing the approval of Fox. Burton and Blanton made a list of prospects which did not include the Lehman Brothers-Drew Company contact.

On June 28, 1962, Fox received a call from his April, 1961, contact, Mr. Sternlieb of Lehman Brothers. “(He) wanted to know, since he was going to be in St. Louis right after the 4th of July or thereabouts, he wanted to know if he could come and inspect the Blanton Company plant. And I said I hadn’t talked to Dave just recently, and that he had taken it out of my hands, and that I would have to check with Dave. * * * So, I called Dave and told him of this call from Mr. Sternlieb, and Dave was quite interested, of course. And I said, ‘He wants to come out.’ And so, Dave said, ‘Before you do anything, you must call Mr. Burton, who I have made an exclusive contract with.’ * * *

“I called Mr. Burton and told him what Dave told me, and that I had this call from New York and Mr. Sternlieb, and Mr. Burton said he had the company up with a considerable number of companies, and until he had cleared with them, he wasn’t interested in discussing anything with me. And I said I felt anything we had initiated, and there was a chance to sell the company, I certainly felt we should participate on a fifty-fifty per cent— * * * And he, then, agreed he saw no objection in having Mr. Sternlieb come and look at the plant, saw no reason to object to it. And, if anything did come of anything that was initiated by Smith-Moore & Co. and me, then he would agree to go fifty-fifty. * * * He continued to even explain to me the type of contract that he had with Mr. Blanton. * * *

“I then immediately called Mr. Blanton and told him Mr. Burton and I had an agreement, and that I then wanted his permission to go ahead and allow Mr. Sternlieb to come. * * * I told him of the conversation I had with Mr. Burton, and that we had an agreement on how we would share commission on anything that might develop from the Lehman and Drew contact. And he then gave me permission to have Mr. Sternlieb come. And I called Mr. Sternlieb in New York, and immediately told him to call Dave direct and make his own arrangements for the time he wanted to come.”

Burton denied making any agreement to split a fee with Fox. He said he told Fox in their only conversation that he would not split because he had just received his exclusive situation.

Fox had no other contacts until October 29, 1962. “I called Dave, told him I was going to New York, and would he like for me to contact Alan Sternlieb to see if anything could be done to revive the Drew matter. And he said, ‘No, don’t do anything, we have got something going, and it might muddy the water.’ ”

Between June 28, 1962, and October 29, 1962, Sternlieb called Blanton and arranged to visit the plant. Negotiations for the sale of all Blanton stock followed in New York and St. Louis which were attended by Blanton and Burton, Loomis and Sternlieb, and others, and, on November 1, 1962, the sale of Blanton to Drew was consummated. On November 2, 1962, Fox read of the sale and Mr. Edward E. Haverstick of Smith-Moore & Company wrote Burton requesting half of the commission.

Burton has duly appealed from the judgment against him on Count I, but Fox’s appeal from the judgment in favor of Blanton on alternative Count II is taken only “against the possibility that Burton’s position might be sustained,” Fox’s motion for new trial and notice of appeal being “conditioned upon a reversal of the judgment against Burton.” Thus, to use the language of Fox’s counsel, there is no occasion to consider the conditional appeal if the case is otherwise affirmed.

Appellant Burton says that the court erred in submitting this case because the evidence shows no consideration for the agreement alleged to have been made by him. He says specifically: IA(1) Fox’s waiver of May, 1962, and (2) Fox’s act in discharging Blanton from obligation, were not valid considerations for Burton’s alleged agreement on June 28, 1962; (3) whatever claim Fox had against Blanton, for commission ceased to exist when the employment was terminated in May, 1962; (4) there is no evidence that Fox made any agreement or promise to waive his alleged claim against Blanton that was concurrent with Burton’s alleged agreement of June 28, 1962. He says also: (IB) that the alleged agreement of June 28, 1962, was indefinite and uncertain and, therefore, unenforceable; and (II) that it was error to give Instruction No. 4 because the evidence does not support the hypothetical consideration that Fox agreed not to assert a claim against Blanton.

Plaintiffs’ case against Burton was submitted by Instruction No. 4 and Burton’s defense was submitted by Instructions 5 and 6:

“INSTRUCTION NO. 4:

“Your verdict must be for plaintiffs and against defendant Burton on Count I if you believe that in consideration of Fox’s agreement not to assert a claim against Blanton for a commission on any sale to Drew Chemical Company, Buiton agreed that in the event of a sale of such stock to Drew Chemical Company Burton would share his contract commission with plaintiffs on a 50%-50% basis.”

“INSTRUCTION NO. 5:

“Your verdict must be for the defendant Burton if you do not believe that:

“First, Burton agreed that in the event of a sale of stock of The Blanton Company to Drew Chemical Company, he would share his contract commission with Fox on a 5O%-50% basis; and

“Second, such agreement was in consideration of Fox’s agreement not to assert a claim against Blanton for a commission on any sale to Drew Chemical Company.”

“INSTRUCTION NO. 6:

“As used in these instructions, ‘consideration’ means (a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification or destruction of a legal relation, or (d) a return promise, bargained for and given in exchange for the promise.”

Appellant does not contend that Instruction No. 4 is an erroneous statement of law, but limits his complaint to a charge that there was no evidence to support it. Its hypothesis is first stated in paragraph 9 of plaintiffs’ petition: “* * * on or about June 28, 1962, Fox spoke to Burton on the telephone and they agreed that in consideration of Fox’s waiving his claim against Blanton for the full commission, in the event of a sale to Drew Chemical Company, they would in that event share equally the commission to be earned under Burton’s contract with Blanton.” And Instructions 5 and 6 are limited to the hypothesis submitted in No. 4. Consequently, discussion of arguments and cases dealing with consideration or lack of consideration arising from past consideration or absence of new or concurrent considerations in respect to matters occurring in May, 1962, is not relevant to the issue of whether Fox and Burton exchanged considerations and made an agreement on June 28, 1962, and arguments in appellant’s points (1), (2), and (4) which view the matters of May, 1962, as the only evidence of waiver may be passed without further comment.

The only question on this appeal, then, is whether there is evidence to support the required findings of Instruction No. 4 which are whether Fox had a claim against Blanton to forbear or waive, and whether Burton and Fox made an enforceable agreement to share a commission.

In answering these questions, we are not concerned with the sufficiency of evidence to support a verdict against defendant Blan-ton, but are concerned only with whether Fox had a claim against Blanton sufficient enough for its waiver or forbearance to serve as consideration for the agreement alleged to have been made between Fox and Burton.

The rule underlying plaintiffs’ theory against Burton is stated in 17 Am. Jur.2d, Contracts, § 111: “It is the general rule that in the absence of fraud or other invalidating circumstances, the surrender of a disputed or doubtful right or claim is a sufficient consideration * * * for an executory contract. * * * Where * * the claimant has an honest and reasonable belief in the validity of an invalid claim, the relinquishment of such claim is sufficient consideration to support a promise.” See also Duncan v. Black, Mo.App., 324 S.W.2d 483, 486 [3]; State ex rel. St. Louis Shipbuilding & Steel Co. v. Smith, 356 Mo. 25, 201 S.W.2d 153, 157[5].

No issue of whether Fox had “an honest and reasonable belief in the validity of” his claim against Blanton was submitted to the jury and the evidence does not show as a matter of law that Fox could not or did not have a reasonable belief in the validity of a claim against Blanton. Viewed in the light most favorable to Fox and his fellow plaintiffs, the evidence shows that the intent surrounding the May, 1962, conversation and letter between Blanton and Fox was to bring about a termination of Fox’s agency in respect to his “obtaining any additional inquiries” and exerting “further efforts.” There is no evidence to the effect that Blan-ton intended to do Fox out of any earned commission or that Fox then intended to waive any commission earned. It would have been simple enough for them to have so agreed or understood had that been their intention. It is reasonable to believe that they had no such intention because at the time neither of them had any idea that Fox’s contact with Lehman-Drew was in the near future to “bear fruit.” It is also reasonable to believe that Fox’s authority was being thus terminated only in order for Burton to be the sole owner of any commission attributable solely to his efforts in a sale to a buyer procured after the termination of Fox’s agency because Blanton admitted that they never discussed liability for Fox’s past efforts and contacts. Certainly, there is no evidence which leads inevitably to a conclusion that Fox was, in May, 1962, waiving any commission which may have already accrued to him as a result of a contact made while his agency was in force. We cannot, therefore, say, as a matter of law, that Fox’s claim against Blanton was neither honest nor reasonable at the time of his conversation with Burton on June 28, 1962, which led ultimately to the sale of The Blanton Company to Fox’s contact, and the cases recognize the right of a broker to commissions on the consummation, after the termination of the brokerage employment, of a sale with one whom the broker regarded as his prospect, especially where the transaction was a result of the broker’s effort. 12 Am.Jur.2d, Brokers, § 216; Axsom v. Thompson, 239 Mo.App. 732, 197 S.W.2d 326, 331 [5]; Johnson v. Columbia Mortgage & Trust Co., Mo.App., 201 S.W. 365, 366 [1, 2]; Morton v. J. I. Case Threshing Machine Co., 99 Mo.App. 630, 74 S.W. 434, 436. Thus it is that Fox had sufficient claim against Blanton to forbear or waive as consideration for the alleged agreement with Burton.

Appellant contends (3), however, that whatever claim Fox might have had against Blanton ceased to exist when the employment was terminated in May, 1962. In support, he argues that the passage of time following Fox’s contact with Lehman-Drew, taken with the doubt he expressed to Sternlieb June 28, 1962, whether Blanton was still for sale and his lack of activity from June 28 to October 29, 1962, established that any right he might have had to a commission did not survive the termination of his employment.

As stated in 12 Am.Jur.2d, Brokers, § 217, “ * * * the right to commissions on a transaction consummated after expiration of the broker’s employment has been denied where negotiations with the broker’s prospect were interrupted for some time before consummation of the transaction with the prospect.’’ See 27 A.L.R.2d 1379; Cole v. Crump, 174 Mo.App. 215, 156 S.W. 769, 771 [2]; Goffe v. Gibson, 18 Mo.App. 1, 4; Holbrook-Blackwelder Real Estate & Trust Co. v. Hartman, 128 Mo.App. 228, 106 S.W. 1115, 1117. In this case, however, appellant did not submit any such question and, as demonstrated, the facts do not preclude an honest and reasonable belief in the validity of Fox’s claim as a matter of law. Appellant’s citations are distinguishable from this case. In Loving Co. v. Hesperian Cattle Co., 176 Mo. 330, 75 S.W. 1095, plaintiff agent was denied a commission on a sale made to a buyer to whom plaintiff talked after termination of his agency, which is different from Fox’s situation in that the sale of Blanton was made to a buyer contacted by Fox prior to termination of his agency. In Staehlin v. Kramer, 118 Mo.App. 329, 94 S.W. 785, and Dodge v. Childers, 167 Mo.App. 448, 151 S.W. 749, the issue of whether plaintiff’s agency and right to commission had ceased by passage of time was submitted to the jury. La Force v. Washington University, 106 Mo.App. 517, 81 S.W. 209, is not in point because it involved a contract calling for performance within a limited time, and in such cases the agent is not entitled to commissions on efforts begun during the contract period which bear fruit only after expiration of the contract.

Appellant says that the parol evidence rule precludes any advantage plaintiffs may obtain from the conversation between Fox and Blanton respecting their intentions upon the termination of the agency because such constitutes an attack on the plain meaning of the May 11, 1962, letter. This is raised for the first time in appellant’s reply brief, but it is unavailing in any event because there was no obj ection to the receipt of the conversation as well as the letter at the trial. Kimbrough v. Gross, Mo.App., 268 S.W.2d 56, 60 [9].

Was there evidence that Burton and Fox made an agreement to share a commission ?

We have previously recited the express contract relied upon by plaintiffs in paragraph 9 of their petition. We have also stated Fox’s version of his conversation with Burton on June 28, 1962, which is evidence that he and Burton agreed to share any commission made on a sale negotiated by Burton to a contact initiated by plaintiffs. The jury could then reasonably infer that when Fox so agreed he impliedly agreed concurrently to forego any claim he had to all of any commission earned upon consummation of a sale to a contact made by him prior to termination of his agency.

Burton says (B) that the contract was so indefinite and uncertain as to be unenforceable, Burger v. City of Springfield, Mo., 323 S.W.2d 777, Stephens v. Stephens, Mo.App., 264 S.W.2d 925, because it did not cover such things as what services Fox would perform in the future, length of term, what prospects Fox had initiated, whether Fox had a binding agreement with Blanton, and what provision was to be made for expenses. It is clear from the conversation and its context that Fox and Burton were agreeing to share 50-50 in the commission provision in Burton’s own contract with Blanton, the terms of which were certainly clear and specific to Burton, and none of the suggested omissions would void it or the agreement between Fox and Burton. Likewise, the conversation makes it clear that the sharing arrangement applied only to a sale to a prospect contacted by plaintiffs while they were Blanton’s agents, and sale was consummated to the Drew Chemical Company with whom Fox initiated contact.

He says also that Fox’s alleged waiver is disproved by Fox’s claim against Blanton in Count II. That claim does not defeat nor destroy Count I, however, because it is not inconsistent with plaintiffs’ theory that Fox had a reasonable belief that he had a claim against Blanton upon which to forbear in consideration of Burton’s promise to share his commission, and the two counts were pleaded alternatively, as authorized by Civil Rule 55.12, V.A.M.R.

Appellant argues that the recital in the May 11, 1962, letter, “Our arrangement has therefore been terminated with no obligation upon either of us to the other,” must be construed to have destroyed any claim that Fox had against Burton so that he had no claim to waive in the June 28th conversation with Burton. It is possible that such provision was so interpreted by the jury in respect to Fox’s separate count against Blanton, but we are unable to say that as a matter of law, it destroyed any claim that Fox had to the extent he had no claim upon which to forbear in his arrangements with Burton.

The agreement said by Fox to have been made between him and Burton was, of course, denied by Burton, but this simply raised a conflict in the evidence which the jury resolved under appropriate instructions. Longmire v. Diagraph-Bradley Stencil Mach. Corp., Mo.App., 176 S.W.2d 635, 644 [4],

Accordingly, the judgment in favor of plaintiffs and against Burton should be affirmed and, since plaintiff Gerald L. Fox intended to appeal the judgment in favor of Blanton on Fox’s separate count only in the event the judgment against Burton was dissolved, it is unnecessary to discuss the merits of that appeal, and the judgment in all respects is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Lena GALEENER et al., Exceptions of Laura Riley LaValle, et al., Respondents.
    No. 51190.
    Supreme Court of Missouri, Division No. 2.
    April 11, 1966.
    Motion for Rehearing or to Transfer to Court En Bane Denied May 9, 1966.

      Robert L. Hyder, Chief Counsel, Missouri State Highway Commission, Raymond S. Roberts, Farmington, George Q. Dawes, Sikeston, for appellant.
    Ward & Reeves, Caruthersville, for respondents.
   BARRETT, Commissioner.

This condemnation proceeding was necessitated by the relocation and construction of 8.646 miles of U. S. Highway 60, with limited access, from Morehouse northeasterly intersecting Highway 61 southeast of and adjacent to the City of Sikeston. A jury has awarded the landowners, the La-Valles, $130,000 damages and the State Highway Commission has appealed. The state’s witnesses placed the damages at $28,000, $49,000 or $57,750, and thus, since it is tacitly conceded that the landowners are entitled as a minimum to one of these sums, the amount in dispute exceeds $15,-000 (Const.Mo.1945, Art. 5, Sec. 3, V.A. M.S.; RSMo 1959 Supp. § 477.040) and jurisdiction of the appeal is appropriately in this court. Public Water Supply Dist. No. 2 v. Alex Bascom Co., Mo., 370 S.W.2d 281; State ex rel. State Highway Comm. v. Stotko, Mo.App., 365 S.W.2d 64; State ex rel. State Highway Comm. v. King Bros. Motel, Inc., Mo.App., 388 S.W.2d 522.

One of the appellant’s assignments of error relates to a problem more or less collateral to the main subject and may be conveniently disposed of preliminarily. While the LaValle property is just outside the city limits of Sikeston, the property, the damages, values and benefits, and the case itself are all necessarily inseparable in many respects from the city and its immediacy. And a former manager of the Sikeston Chamber of Commerce, with unconcealed pride, testified at length to the city’s growth, the number of schools, churches, subdivisions, new homes, telephones, to new and expanding industries, and finally to the population of Sikeston and the adjacent village of Miner. He estimated the population of Sikeston in 1950 at 10,000, in 1960 at 13,752 (the date of the taking was October 9, 1958), and as- of the date of the trial, September 1964, at 15,000. He estimated the population of Miner in 1955 at 100C and' in 1964 at 1500 to 2000. (Judicially noticing for the purposes of this appeal (State ex rel. Dickason v. County Court, 128 Mo. 427, 30 S.W. 103, 31 S.W. 23) the United States Census of Population for 1960 shows the population of Sikeston in 1950 as 11,640 and in 1960 as 13,765. There was no population figure for Miner in 1950 and in 1960 it was 548.) The state’s assignment of error is that the court erred in thus permitting the introduction of parol evidence of the- population of Sikeston and Miner because it violated the best evidence rule, was based on guess and speculation and “not upon the census reports as published by the United States Census Bureau.” In the trial of the case when given an opportunity to examine the witness “fully before he answers” counsel said, “No, your honor, I am standing on the objection, the only record admissible in this court is the United States Federal Census.”

There is a temptation to pursue this assignment of error and consider the distinction in judicial notice and the admissibility of census reports as evidence (5 Wigmore, Evidence, § 1671(7), p. 685, 9 Wigmore, §§ 2577, 2580) but it is not necessary to a disposition of this point. In the first place, as the respondents suggest, the best evidence rule has no application to the proof of facts collateral to th.e main issue (32A C.J.S. Evidence § 781, p. 100) and of course the population of these localities was a collateral issue. Neither is it necessary to say whether the federal census reports are conclusive, as in effect the appellant contends. They may be conclusive “for the purpose of representation” and “the ascertainment of the salary” in political subdivisions. RSMo 1959, § 1.100. And while courts may “take judicial notice, without proof” of the population of cities, the statute does not refer to the federal census alone, it says “according to the last enumeration of the inhabitants thereof, state, federal or municipal, made under or pursuant to any law of this state or of the United States.” RSMo 1959, § 490.700. Further indicating that the federal census is not the only possible, in the language of appellant, “record admissible in this court” is the fact that cities, if their governing bodies are of the opinion that there has been a substantial change in population since the last census, may “request the governor to order a special census to be taken therein.” RSMo 1959, § 71.160. And finally, while it is not known whether the jury noted the detail, two of the landowners’ exhibits were general highway maps of Scott and New Madrid Counties which, according to the legends on the exhibits, were prepared by the appellant and sold by it for “10 cents.” These maps bear dates of “12-1-58” and “2-2-59” and they show the population of that part of Sikeston in Scott County as 11,629, 11 in New Madrid County, total 11,640. These maps also show that Sikeston and Miner are all but one, and the population of the latter is stated to be 50. In view of all these considerations the court did not preju-dicially err in permitting the introduction of parol evidence of the population of these two municipalities.

Not only is the land involved here adjacent to both Sikeston and Miner, U. S. Highway 61 adjoins its east end and Highways 60 and 61 intersect at its northeast corner. And off the northeast quadrant of the highway intersection there is a new Holiday Inn and north-south Interstate Highway 55 is less than three miles to the east. Originally the LaValle property, farm land intensively cultivated, consisted of 288.83 acres. While 248 acres of the contiguous tract were rectangular in shape, it laid northwest-southeast and the other 40-acre tract was attached to the southwest corner but it too was tilted, so to speak, so that its northwest corner of 5 acres was in almost a straight line with the larger 248 acres and was therefore intersected by the highway. One other important fact should be noted and that is that the 248 acres were intersected from north to south, almost in the center of the tract, by the Frisco Railroad. Thus east of the railroad there were 113.24 acres and west of the railroad, in the rectangular tract, 134.76 acres. And thus while the 288.83 acres were contiguous the railroad tracks divided the land into two separate areas. The lay of the land and the shape of the tracts before and after the taking, along with its proximity to Sikeston, are of the greatest importance in this particular case.

The state has condemned a strip 8700 feet long, about one and one-half miles, 270 to 290 feet wide, through the center of the 248-acre tract and across the northwest corner of the 40 acres — taking for the highway right-of-way alone 44.83 acres. This location of the highway takes 18.04 acres out of the east 113.24 acres, 23.09 acres out of the west 134.76 acres, and 3.70 acres out of the northwest comer of the attached 40 acres. In addition, north of the highway and out of the 113.24-acre tract 10.20 acres were taken for a borrow pit, while west of the railroad and south of the highway in the other larger tract two separate areas, one of 4.12 acres and the other of 3.99 acres, were also taken for borrow pits. Two of these are temporary takings and are to be returned to the landowners but the topsoil in depths of one to twenty feet has been removed and some of the witnesses gave little or no value to these pieces of property. Across the railroad tracks the state has built an overpass and this fact r concerned with its separate assignment of error and is mentioned here only for its obvious general effect on the tract as a whole. The construction of the overpass and its approaches necessitated the acquisition of the 18.31 acres of borrow pits.

The effect of the highway and the borrow pits is that instead of being divided into two tracts by the railroad, the LaValle property is now divided into at least eight distinct and more or less separated pieces varying in size from 85 acres to 0.16 acres. As stated, this is a limited access highway, Highway 61 abuts the 85 acres on the east end, there is no other highway or road entrance to the land except that, as described by the engineer who designed the highway, as to the southwest 37.2 acres and the area south and west of the railroad and highway, “(t)here is left along the south property line of that tract of land a strip of ground 35 feet wide and the owner can travel along this area down through here and enter into this remaining 37.2 acres." There is of course no access to the 0.16 of an acre in the northwest tip of the 40 acres and in the area west of the overpass the owner has been given a crossover from the 47.2 acres to the south 17.5 acres and the borrow pit of 4.12 acres and the fact of the crossover is connected with the separate assignment of error relating to the overpass. This is sufficient general background for the other five assignments of error, all of which are concerned with the size of the verdict, instructions and the introduction of evidence upon the principal issue of the damages recoverable.

The first and one of the most vigorously asserted assignments is that the court erred in permitting the landowners “to introduce evidence relative to traffic hazards at Respondents’ crossing, and particularly hazards involving violations of the speed laws, because this testimony contemplated the commission of future tortious conduct by third parties and hazards shared in common with all members of the public due to the use of the highway.” It may be said, to shorten consideration of the problem, that noise and speed, increased traffic and their resulting inconveniences are neither elements of damages nor of benefits and they are not proper matters of proof or for the jury’s consideration. State ex rel. State Highway Comm. v. Turk, Mo., 366 S.W.2d 420; State ex rel. State Highway Commission v. Sharp, Mo.App., 62 S.W.2d 928; State ex rel. State Highway Commission v. Pope, 228 Mo.App. 888, 74 S.W.2d 265. But, even though inconvenience, here of carrying on farming operations or other business, is not an element for which the landowner may be compensated, it may with other factors affect future use and therefore market value, as for illustration that borrow pits were dug near a gate and interfered with pasturing of cattle. State ex rel. Highway Comm. v. Malone, Mo.App., 45 S.W.2d 84. Then too when a part only of a tract is taken the owner is entitled to recover for the land actually taken and in addition “whatever consequential damages may proximately result to the remainder by reason of the taking of a part.” And “(t)hat includes damages resulting from any destruction, restriction, diminution, or interruption of rights of ownership in and to the property.” State ex rel. N.W. Elec. Power Co-op., Inc. v. Waggoner, Mo.App., 319 S.W.2d 930, 934; 29A C.J.S. Eminent Domain § 111, p. 450, § 163, p. 707. And it was in this latter connection that the landowners injected this type of testimony into the trial, particularly during their examination of the engineer who designed this highway.

While the engineer was employed by the State Highway Department the landowners called him as a witness and it was he who gave the precise dimensions of the areas taken for one purpose or another, described the highway and the areas remaining and important here, the highway overpass, the fills necessary for its approaches and the crossing over the highway given the landowners in the area west of the railroad. It is not necessary to describe the railroad overpass and the fills necessary for its approaches, the overpass is 28 feet “above the natural ground surrounding it.” The crossing allotted to the landowners over the highway right-of-way, 290 feet wide in this area, “is approximately 1400 feet from the crossing to the top of the bridge over the railroad.” The engineer thought the landowners’ crossing adequate and safe from oncoming traffic whether the landowners were operating farm machinery across the highway or whatever use they were making of it. At this point landowners’ counsel asked the witness whether it was not common on these “super-duper four lane highways” for vehicles to travel at speeds of 70, 80, 85 or 90 miles an hour. The engineer said that he had seen people pass him when he was going 70 miles an hour. He testified that at 70 miles an hour an automobile would travel the 1400 feet in 13 seconds and at 80 miles an hour in 9 seconds. It was his estimate that it would take farm equipment traveling at five miles an hour 33 seconds to cross the 290 foot right-of-way. The court sustained an objection to the question whether these distances and speeds created a “situation that is a hazard.”

Why counsel would insist on inquiries relating to illegal speeds (State ex rel. Northwest Electric P. C. Inc. v. Waggoner, Mo.App., 319 S.W.2d 930) is not known, but as indicated in approaching this assignment of error, it is assumed that in ordinary circumstances all testimony as to speed, noise and the inconvenience of traffic is inadmissible because “at the point in question (it) is shared by all who reside in the neighborhood.” State ex rel. State Highway Comm. v. Turk, 366 S.W.2d l. c. 422. But as indicated and as is plain from the questions and their context, this evidence was not introduced for the purposes condemned in the Turk, Waggoner, Pope and Sharp cases. It was introduced for the purposes set forth in the Clevenger case: “But we further hold that evidence of the manner, nature and extent of the taking, the separation of defendants’ land into different tracts, and the added inconvenience, if any, in going about the farm, may properly be considered by the jury in assessing the total net damages to the land, together with any other similar circumstances.” State ex rel. State Highway Comm. v. Clevenger, Mo., 291 S.W.2d 57, 62. There was no request to limit the purposes of this particular evidence and there were no withdrawal or delimiting instructions, it was simply objected that in any event the evidence was inadmissible for any purpose and was therefore prejudicial. But in the context in which it was introduced and in the circumstances of this particular case the evidence was not manifestly and preju-dicially erroneous so as to demand the granting of a new trial by this court. State ex rel. Northwest Electric P. C. Inc. v. Waggoner, supra; State v. Clevenger, supra; 29A C.J.S. Eminent Domain § 163, p. 705.

Another assignment of error relating to proof is that the court erred in permitting respondents to introduce “evidence of sales by lot located within the corporate limits of Sikeston, because the sale by lot of subdivided land, improved with utilities would not tend to aid the jury in determining market value of unimproved land lying one-half a mile from utilities.” In the argument section of its brief it turns out the appellant again refers to the testimony of Mr. Beaird the former director of the Sikeston Chamber of Commerce and for the past four years manager of the Security Federal Savings & Loan Association in Sikeston. In addition to the growth of Sikeston, its subdivisions and dwellings, Mr. Beaird testified, without objection, that on behalf of the First Baptist Church he hand handled the purchase of a piece of property in the city, about 6 acres, for $30,800, about $5000 an acre. On redirect examination he testified that in the E. C. Robinson Lumber Company Addition lots 100 to 125 feet by 60 to 75 feet sold for an average of $2000 a lot. The only authority cited in support of the assignment is State ex rel. State Highway Comm. v. Klipsch, Mo., 392 S.W.2d 287, but that case was not concerned with the objection made here; insofar as it is applicable it recognizes the general rule that in considering the admissibility of evidence of other sales considerable deference is due the trial court’s discretion. The judgment in that case was reversed because there was a flagrant violation of the rule “that a witness may not testify as to his opinion of the value of comparable land.” (392 S.W.2d l. c. 290-291). And it may be conceded as a general proposition that “(s)ales of small residence or business lots on improved streets would give the jury no assistance in estimating the value of a tract of 24 acres of unimproved land.” St. Louis, O. H. & C. Ry. Co. v. Fowler, 142 Mo. 670, 678, 44 S.W. 771, 773; Annotation 85 A.L.R.2d 110, 140. And of course there were no utilities or sewers connected with the LaValle property, but, according to the landowners’ witnesses, the highest and best use of the property was for purposes of subdivision, both residential and commercial. “The importance of other sales depends not only on their proximity in point of time but also upon ‘similarity in location, and in the uses to which the properties may be adaptable.’ ” City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839, 850. Here the fact was testified to by a single witness out of eight or ten who testified to values and damages and, if not comparable property, the value of improved lots was again a collateral matter. City of St. Louis v. Kisling, Mo., 318 S.W.2d 221, 226. And, in conclusion, to borrow further from the Vasquez case: “The differences (in acreage, immediate accessibility to a paved road, etc.) were not so disparate as to make them incomparable as a matter of law. The decision to admit the evidence of these other sales was made in the reasonable exercise of the discretion of the trial judge, and no abuse of discretion is indicated.” (341 S.W.2d l. c. 851.)

Another assignment of error concerned with the trial of the case is that the court erred “in not reprimanding counsel and for not declaring a mistrial of the case, when respondents’ counsel on five or six occasions stated and elicited from witnesses that the Matthews and Stallcup land could not be bought at any price.” The assignment is considerably weakened by this statement in its brief which obviously does not demonstrate manifest prejudicial error: “The full impact of these statements are difficult to visualize because the Court Reporter neglected to transcribe the oral statement and arguments. While this matter standing alone is not felt to be reversible error, Relator contends that this added to other erroneous matters in this case contributed substantially to the excessiveness of the verdict.” (Emphasis supplied.) Of course this court may not consider any matters not set forth in the approved transcript. State ex rel. State Highway Comm. v. Parker, Mo., 388 S.W.2d 830, 832. In its assignment of error the appellant concedes that “the court sustained relator’s objections thereto,” and in contending that nevertheless there was prejudicial error the appellant cites no authorities (Civil Rule 83.05(a), V.A.M.R.) and the consequence is that there is no demonstration of manifest error. Royal v. Thompson, Mo., 212 S.W.2d 921, 922; Morris v. Willis, Mo., 338 S.W.2d 777.

In its assignments of error the appellant has commingled objections to Instructions 1 and 2 even though there were no specific objections to Instruction 2 when it was offered, the transcript recites only that “To the action of the Court in giving said instructions, counsel for Plaintiff, at the time, objected,” and the instruction is not mentioned in the motion for a new trial. Civil Rules 70.02, 79.01, 79.03. Thus any error in Instruction 2 was not called to the trial court’s attention and the consequence is that the mere assignment in its brief of errors with respect to that instruction presents no reviewable question to this court. Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 609-610. Incidentally, the appellant requested no instructions and, in effect there were only two given (number 3 was concerned with the number of jurors required to return a verdict), and number 2 was concerned only with the measure of damages.

It is not necessary to set it forth in detail here but Instruction 1 was the principal instruction and covered the subject of eminent domain, this particular property and a rather full exposition of “fair market value.” As stated, the appellant commingles its objections and for the most part the objection is to Instruction 2 and the measure of damages. As to Instruction 1 it is said that the part “directing the jury in what it should consider in arriving at fair market value is misleading to the jury under the evidence in this case and would cause the jury to compare this property with recent sales of land of a completely different nature.” It is also asserted that the instruction in effect precluded consideration of “evidence of special benefits to this property as commercial property.” In part these contentions were disposed of in considering the prejudicial effect of certain evidence and, as stated, the appellant offered no instruction on the subject of special benefits.

But it is not necessary to pursue the objections to Instruction 1 in detail, the appellant all but admits that Instruction 1 was approved by this court in City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839. This is the appellant’s statement in its brief: “It should be pointed out at the outset that an instruction very similar to the instant one, but containing significant differences, as hereafter noted, was approved by this Court in City of St. Louis v. Vasquez, 341 S.W.2d 839. Also, the instruction in the Vasquez case was approved because of the existence of evidence in that case which was significantly different from that in the instant case.” And needless to say there were numerous factual differences in this and the Vasquez case but the factual differences are not sufficiently significant to change the essentials or to distinguish the principles announced in the Vasquez case. Not only was an almost identical instruction approved in that case, with minor adaptations it has been approved in Missouri Edison Company v. Gamm, Mo.App., 379 S.W.2d 166; State ex rel. Board of Regents for Central Mo. State College v. Moriarity, Mo.App., 361 S.W.2d 133, and most recently, State ex rel. State Highway Comm. v. Koberna, Mo., 396 S.W.2d 654. While there are factual differences in the cases virtually every objection made here was made in the Vasquez case or those following it and it would serve no useful purpose here to examine the argument in detail and point out the distinctions necessary to demonstrate that Instruction 1 was not prejudicially erroneous for the reasons advanced upon this appeal.

The final assignment is that the verdict is excessive, “exceeding even the damages testified to by many of respondents’ own witnesses, is unsupported by the evidence in the case and is the result of bias, prejudice and the cumulative effect of the numerous errors committed in the trial.” In support of this rather sweeping assignment the appellant cites the single case of Mississippi River Fuel Corporation v. Whitener, Mo.App., 237 S.W.2d 239. And that case was not concerned with the ex-cessiveness of a verdict in a condemnation proceeding and neither was it concerned with bias and prejudice entering into a verdict or with so-called cumulative error. There was error in two respects in that case; one, in permitting testimony as to the cost of digging a new well but the crux of the case is contained in this quotation, which is not applicable to this case: “No evidence was introduced from which the damage to the land actually owned by respondents could be reasonably ascertained. It follows that the verdict of the jury finds no support in the evidence.” There was no doubt here whether there was damage to land “actually owned by respondents,” as indicated in considering this court’s jurisdiction of the appeal, the appellant admits damages of at least $28,000 and as much as $57,750. Two or three of the respondents’ seven or eight witnesses on values and damages estimated the damages as low as $117,893, $122,500 and $122,306.75. For the most part these witnesses treated the tract as farm land only while most of the witnesses were of the opinion that its highest and best use was for both residential and commercial subdivisions. It is not necessary to encumber this opinion with the qualifications of the various witnesses and set forth in detail the factors that entered into their opinions but five of the respondents’ witnesses were of the opinion that the land was damaged in these sums, all in excess of the $130,000 verdict: $150,-032; $164,124; $143,550; $150,000 and $137,608.25. “There was disparity between the estimates of the expert witnesses, but that is not a justifiable basis for an appellate court to disturb the verdict in a condemnation case. * * * There was substantial evidence from plaintiff’s expert witnesses that the total of appellant’s damages resulting from the appropriation was less than the award. (The landowner appealed claiming that a $22,000 award was inadequate.) * * * The trial court is vested with wide discretion in ordering a new trial on the ground of either exces-siveness or inadequacy of the verdict, and its action will not be disturbed if it is reasonably supported by substantial evidence. * * * We conclude that the verdict in this case was supported by substantial evidence, that appellant has not demonstrated bias or prejudice on the part of the jury, * * *.” State ex rel. State Highway Comm. v. Koberna, 396 S.W.2d l. c. 668; Public Water Supply District No. 2 v. Alex Bascom Co., Mo., 370 S.W.2d 281, 290.

In accordance with these views the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: FINCH, Judge.

text:
    Dona Lee ROACH, Plaintiff-Appellant, v. Verna F. LACHO, Defendant-Respondent.
    No. 51492.
    Supreme Court of Missouri, Division No. 2.
    May 9, 1966.

      W. Hugh McLaughlin, Rollie R. Baldwin, Kansas City, for appellant.
    Richard P. Sprinkle, Kansas City, for respondent; Sprinkle, Carter, Sprinkle & Larson, Kansas City, of counsel.
   FINCH, Judge.

Plaintiff brought suit for $20,000 for personal injuries. At the close of plaintiff’s case the trial court sustained defendant’s motion for a directed verdict and entered judgment for defendant. Plaintiff appeals.

Plaintiff’s petition alleged primary and humanitarian negligence. Defendant’s answer contained a general denial and pleaded contributory negligence, including an assertion that plaintiff was driving to the left side of the road when approaching within one hundred feet of an intersection. The trial court held that plaintiff’s own evidence disclosed that she was guilty of contributory negligence as a matter of law, which barred recovery for primary negligence, and that the evidence did not make a submissi-ble case under the humanitarian doctrine. These are the two issues raised on appeal, and we shall consider them in that order.

The evidence discloses that on the morning of September 25, 1961, plaintiff was driving her automobile south on Raytown Road where it enters Raytown. The speed limit at that point was 35 miles per hour. The street is constructed of concrete and is 18 feet wide. Raytown Road is intersected at this point by 53rd Street, which runs east from a “T” intersection with Raytown Road. It is constructed of blacktop and is 17 feet wide. At the intersection with Ray-town Road, 53rd Street bells or widens out to a width of 62 feet, but practically all of the additional width is on the south side of the street. Both the testimony and the photographs indicate that 53rd Street does not widen appreciably on its north edge but at that point forms an almost square intersection with Raytown Road.

Plaintiff testified that as she proceeded south on Raytown Road she followed a slow-moving Comet automobile traveling at approximately 15 miles per hour. She testified variously that when she was between 100 to 150 feet from the intersection with 53rd Street, she turned from the right lane to the left lane and started to pass the Comet. For the purposes of this appeal, we will assume that this occurred before she reached a point 100 feet from the intersection with 53rd Street. At the time plaintiff turned from the right-hand to the left-hand lane she could see four blocks to the south on Raytown Road. She accelerated to 30 miles an hour to pass the Comet, which was traveling at 15 miles per hour. When she was about three car lengths from the north edge of the 53rd Street intersection (48 to 51 feet), plaintiff observed defendant’s car moving west on 53rd Street at about 10 miles per hour. She estimated it was about one car length from Raytown Road. At that time plaintiff’s right rear door was about even with the front of the Comet automobile. Plaintiff applied her brakes and honked her horn, but her car and defendant’s car collided on the east half of Raytown Road at the intersection with 53rd Street. Other facts, as necessary, will be recited in connection with discussion of whether the evidence was sufficient to justify a submission to the jury under the humanitarian doctrine.

The question of whether plaintiff was guilty of contributory negligence as a matter of law involves a consideration of the provisions of § 304.016 and particularly paragraph 4 thereof (all references are to RS Mo 1959, V.A.M.S., unless otherwise indicated). Said paragraph 4 is as follows:

“4. No vehicle shall at any time be driven to the left side of the roadway under the following conditions:

“(1) When approaching the crest of a grade or upon a curve of the highway where the driver’s view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction.

“(2) When the view is obstructed upon approaching within one hundred feet of any bridge, viaduct, tunnel or when approaching within one hundred feet of or at any intersection or railroad grade crossing.”

Plaintiff asserts that when the statute uses the language “No vehicle shall at any time be driven to the left side of the roadway,” the use of the preposition “to” implies a change of the vehicle’s location from the right to the left side of the roadway. Consequently, says plaintiff, the statutory prohibition relating to the area within one hundred feet of an intersection applies only if, within that distance, the vehicle actually crosses from right to left, and it has no application if the vehicle was already in the left lane when it reached a point one hundred feet from the intersection.

We note that the statute does not say specifically that no vehicle shall be driven from the right-hand lane to the left-hand lane of the highway. Neither does it say explicitly that no vehicle shall be driven in or on the left-hand side of a roadway. What, then, does the language “to the left side of the roadway,” as used in paragraph 4 of the statute, mean ?

In the first place, it should he noted that paragraph 4 is not limited by its terms to vehicles overtaking and passing other vehicles. Paragraphs 1, 2 and 3 of § 304.016 do apply specifically to overtaking and passing, but this is not true of paragraph 4. It makes no reference anywhere to overtaking and passing other vehicles, but starts out by saying that “No vehicle shall at any time be driven * * * ” (emphasis supplied). It then goes on to spell out several specific situations in which no vehicle is to be driven “to the left side of the roadway.” The first such situation specified in the statute is as follows: “No vehicle shall at any time be driven to the left side of the roadway * * * when approaching the crest of a grade.” Is this language intended to prohibit all vehicles from driving in the left-hand lane when approaching the crest of a grade, or does it mean, as plaintiff contends, that the prohibition applies only if the vehicle crosses over from right to left as it approaches the crest of the grade ? We think it means the former, not the latter. A car which has been on the left side of the road for some time and remains there as it approaches the crest of the hill is just as much a hazard to traffic approaching from the opposite direction as a vehicle which crosses over into the left-hand lane when approaching the crest of the hill. We find nothing in the language of the statute, or in the evident purpose of the statute, which would cause us to construe it to be applicable only to those vehicles crossing over from right to left as they approach the crest of the grade. The intention of the legislature, we think, was to prevent all cars from being in the left lane when approaching the crest of a grade, not just those which cross over when approaching the crest. Consequently, we are of the opinion that the preposition “to” as used in paragraph 4 is synonymous with “on” or “upon.” Obviously, if the preposition “to” is synonymous with “on” or “upon” with respect to this situation (approaching the crest of a grade), it has the same meaning when applied to the other specific situations set out in paragraph 4, including travel in the left lane within one hundred feet of an intersection.

We think that this interpretation of the meaning of the preposition “to” as used in paragraph 4 is in harmony with its use in other paragraphs in § 304.016. For example, it also is used in paragraph 2 thereof. That paragraph provides that the driver “may overtake and pass to the right of another vehicle * * * upon a city street with unobstructed pavement of sufficient width for two or more lines of vehicles in each direction.” Plaintiff’s interpretation of the preposition “to” as implying a crossing over and a change of lanes would mean that this permission to pass on the right of another vehicle applied only if he first crossed over from the left to the right lane of vehicles moving in the same direction in the process of passing “to the right of another vehicle.” The same would be true under paragraph 2(3) which is applicable to a one-way street. Obviously, we think, this is not what the statute means. Rather, it means that it is permissible on such a city street to pass on the right “when such movement may be made in safety” and there is no requirement that there has been any crossing over from one lane to another as a condition to that permission. Thus, the preposition “to” as used in paragraph 2 is synonymous with “on” or “upon,” just as we find it to be in paragraph 4 of the section. We shall not lengthen this opinion with a discussion of the other paragraphs of the section and the use of the preposition “to” therein, but we believe them to be consistent with this interpretation.

Counsel have cited no Missouri cases interpreting this section of the statute in its present form, and we have found no case in our research on the subject. Cases are cited by counsel from other jurisdictions which interpret statutes containing identical or substantially identical language. The cases of Harbert v. Mathis, Tex.Civ.App., 230 S.W.2d 380, and Young v. Blue Line Storage Co., 242 Iowa 125, 44 N.W.2d 391, reach conclusions which are in harmony with the views herein expressed. The cases of Lemkie v. Boice, 329 Mich. 278, 45 N.W.2d 288; Clark v. Sumner, Fla., 72 So.2d 375, and Hendrick v. Strazzulla, Fla.App., 168 So.2d 156, reach opposite results. We have considered these cases, but see no useful purpose in discussing and analyzing them in this opinion. Those who are interested may read the cases for themselves. Obviously, from what we have said, we believe that the interpretation made in the Texas and Iowa cases is the proper one.

Plaintiff makes the further assertion with respect to § 304.016 that it was intended only to prevent collisions between vehicles proceeding on the thoroughfare in the same or opposite directions and would not apply to traffic entering from an intersecting or side street, and is not for the benefit of a person entering the highway from said intersecting or side street. Plaintiff cites and relies upon the case of Magill v. George, 347 Ill.App. 6, 105 N.E.2d 808, which so interpreted an Illinois statute. We do not agree that our statute should be so interpreted or is so limited. Rather, we agree with the reasoning of the Texas court in the case of Harbert v. Mathis, supra, wherein it said, 230 S.W.2d l. c. 383: “In point No. 2 appellant contends that Section 57 of Article 6701d, supra, was not enacted for the protection of persons operating motor vehicles in the same direction and its violation could not be the basis of charging him with negligence per se. We cannot agree with appellant’s contention as to the limited purposes of the statute in question. The object of Section 57 was to eliminate the hazard of cars being operated on the left side of the roadways under certain conditions and the object of Section 57(a) 2 was to eliminate such hazard within 100 feet of intersections, and was for the benefit and protection of all persons and vehicles using the roadway at or near the intersection regardless of the direction they were traveling.” See also Teters v. Kansas City Public Service Co., Mo., 300 S.W.2d 511, 516, wherein the court in considering § 304.010 which deals with the manner of operation of motor vehicles on the highways, said: “The purpose of the law is the protection of the life, limb and property of all persons riding, driving, or otherwise upon the highways.”

We need not consider what would be an excusable violation of the statute under the line of cases such as Wilson v. Shumate, Mo., 296 S.W.2d 72, and Edwards v. Mellen, Mo., 366 S.W.2d 317, which recognize that there may be proof of legal excuse or avoidance for failure to comply with a statutory duty by reason of an occurrence without fault on the part of the person involved which made compliance with the statute impossible at the moment complained of and which proper care on his part would not have avoided. Plaintiff makes no such contention in this case. Her claim is simply that the statute has no application unless there is a crossing over within the 100 foot area. Under these facts, we hold that plaintiff in driving the entire 100 feet in the left lane was guilty of negligence as a matter of law, and that such negligence bars recovery on the basis of primary negligence in this case.

The other question for determination on appeal is whether plaintiff made a submissible case under the humanitarian doctrine. In deciding this question, we will consider the evidence in the light most favorable to plaintiff. Lane v. Wilson, Mo.App., 390 S.W.2d 943.

The proposition briefed by plaintiff on appeal is that defendant could have stopped or slackened her speed after plaintiff was in a position of imminent peril and thereby could have avoided the collision. Plaintiff reasons thus: She was in a position of imminent peril when she was 48 to 51 feet (three car lengths) north of the north edge of the “T” intersection with 53rd Street. At that point she first saw defendant’s car about one car length (16 to 17 feet) from the edge of Raytown Road. Defendant was traveling west on 53rd toward Raytown Road at 10 miles per hour. Actually, defendant would travel at least 27.2 feet from that point before reaching Raytown Road for a turn to the right. This was true, says plaintiff, because the bell-like intersection by 53rd Street was 62 feet wide and the hypotenuse of the triangle to the north would be 27.2 feet. Defendant could have stopped within that distance, according to plaintiff.

There are various difficulties with plaintiff’s position. In the first place, plaintiff’s computations of the distance defendant would travel in turning to the right are on the assumed premise that the additional width of the intersection was one-half on the north and one-half on the south side of the main portion of 53rd Street. The evidence does not support that assumption. Actually, 53rd Street does not bell out appreciably to the north. The additional width is to the south. Officer Robinson, a witness for plaintiff, so testified, and plaintiff’s Exhibit 1 clearly so shows. There was no evidence to the contrary. No one testified as to any measurements to demonstrate that a vehicle 16 to 17 feet east of the edge of Raytown Road would travel a greater distance than 16 to 17 feet in reaching Raytown Road to turn right, as defendant undertook to do. Consequently, we must consider the case on the basis that defendant had 16 to 17 feet to travel before being in the northbound lane of Raytown Road.

The next difficulty in plaintiff’s position is that no evidence was offered to show the distance in which defendant’s car cotíld have been stopped. There was no evidence as to her reaction time. We can, in the absence of evidence, assume a reaction time of three-fourths of a second (Vietmeier v. Voss, Mo., 246 S.W.2d 785). In that period defendant would have traveled approximately 11 feet before her brakes were applied. That leaves only 5 or 6 feet in which to stop before she would be in the northbound lane of Raytown Road where the collision occurred. As mentioned, plaintiff offered no evidence of the braking distance required to stop a car at ID miles per hour. This court has stated in De Lay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 636, that a car with good brakes traveling 10 miles per hour, can be stopped in 9 feet. However, that would put defendant 3 to 4 feet onto the northbound lane of Raytown Road and would not be sufficient to avoid the collision. In addition, plaintiff testified that there were wet spots on the pavement, and such spots, if located where defendant would be applying her brakes, would affect the braking distance. Obviously, in the absence of evidence, the contention that defendant could have stopped and avoided the collision is based on speculation and surmise and was not sufficient basis to make a submissible case under the humanitarian doctrine for failure to stop.

Plaintiff then asserts that even if defendant could not have stopped, she could have slackened her speed sufficiently to have avoided the collision. Again, there is no testimony to show that this could have been done. The evidence and exhibits show that the left front ends of the two vehicles collided. We cannot speculate that defendant could have so slackened her speed in the very few feet she traveled after the reaction period so as to have enabled plaintiff’s car to have passed by before defendant reached Raytown Road. Such close calculations and tolerances are too fine to serve as a basis for imposition of liability under the humanitarian doctrine.

Plaintiff also makes the point that the place and time when one comes into a position of imminent peril is for the jury. This is true where a submissible case is made, but there was no evidence on which to justify any finding of a position of imminent peril at a point further away from the intersection than 48 to 51 feet because there was no evidence that the defendant could have seen the plaintiff beyond that point, and actually we do not understand plaintiffs brief to assert that plaintiff was in a position of imminent peril prior to that time. Where, as here, it is clear that plaintiff did not make a submissible humanitarian case, it is proper for the court to sustain the defendant’s motion rather than submit the matter to the jury.

The judgment is affirmed.

All of the Judges concur.

      . Since we refer in this opinion to various other parts of § 304.016, we set out here the entire section except paragraph 4, set out above.
      “304.016. 1. The following rules shall govern the overtaking and passing of vehicles proceeding in the same direction, subject to the limitations and exceptions hereinafter stated:
      “(1) An operator or driver overtaking and desiring to pass a vehicle shall sound horn before starting to pass except in cities where prohibited by ordinance;
      “(2) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle;
      “(3) Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.
      “2. The driver of a motor vehicle may overtake and pass to the right of another vehicle only under the following conditions :
      “(1) When the vehicle overtaken is making or about to make a left turn.
      “(2) Upon a city street with unobstructed pavement of sufficient width for two or more lines of vehicles in each direction.
      “(3) Upon a one-way street.
      .“(4) Upon any highway outside of a city with unobstructed pavement of suf-fieent width and clearly marked for four or more lines of traffic.
      “(5) The driver of a motor vehicle may overtake and pass another vehicle upon the right only under the foregoing conditions when such movement may be made in safety. In no event shall such movement be made by driving off the paved or main traveled portion of the roadway.
      “(6) The provisions of this subsection shall not relieve the driver of a slow-moving vehicle from the duty to drive as closely as practicable to the right-hand edge of the roadway.
      “3. Except when a roadway has been divided into three traffic lanes, no vehicle shall be driven to the left side of the center Ene of a highway or public road in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to he completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken.”


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Paul PACE, Appellant.
    No. 51852.
    Supreme Court of Missouri, Division No. 2.
    May 9, 1966.

      L. Glen Zahnd, Savannah, for appellant.
    Norman H. Anderson, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Presiding Judge.

The defendant has appealed from the denial of his motion to vacate a judgment of conviction, the motion being filed pursuant to our Rule 27.26, V.A.M.R. The judgment was entered upon a plea of guilty to an information alleging that defendant had, on or about December 21, 1964, unlawfully and feloniously escaped from the Andrew County jail while confined there, before conviction, for the violation of a penal statute. See Section 557.390, RSMo 1959, V.A.M.S. The requirement of the statute is that the defendant be “-lawfully imprisoned or detained * * * upon any criminal charge, before conviction,” and that he break prison or escape therefrom.

The plea of guilty to the escape charge was made and received on March 31, 1965, with counsel present, and defendant was sentenced to serve a term of two years. On August 9, 1965, he filed the motion to vacate that judgment. From his own statements in that motion the following facts appear: he had previously been arrested on a warrant issued by the Magistrate of Andrew County charging him with the “taking and carrying away” of a tractor and trailer on or about May 1, 1961, and he had been imprisoned' in the Andrew County jail; that thereafter he was “accused of escaping” therefrom; that he waived extradition and was returned to Missouri for trial; that on March 31, 1965, the original stealing case against him was dismissed and he was also sentenced to imprisonment for two years on the escape charge. It is not shown, nor is it material to know, which of those latter events occurred first.

It is defendant’s contention that no lawful “imprisonment, arrest, or accusation” was proven or made, and that there was no foundation for a. charge of escape; and that, therefore, he should be discharged from the judgment and sentence therefor. His sole additional point is that the information on the escape charge was void because it was only verified by the Prosecuting Attorney upon information and belief, whereas it should have been supported by the affidavit of someone competent to testify.

On the first point he cites the case of State v. King, Mo., 372 S.W.2d 857, which, as we shall see, in no way supports his position. His contention is not elaborated, but it seems to rest solely on the proposition that the original stealing charge was dismissed and that, consequently, he was never lawfully imprisoned. It is material to note the dates: the alleged theft occurred on or about May 1, 1961; he was not arrested on that charge until November 14, 1964, at which time he was imprisoned; he escaped on or about December 21, 1964, approximately five weeks after his arrest; the information on the escape charge was filed on January 6, 1965, and thereafter, according to defendant’s own statement, it was necessary to return him from another state. We thus see that while imprisoned in a county jail upon a warrant “issued by the Magistrate Court of Andrew County” upon a criminal charge, he escaped. His statement that he was “accused of escaping” is the equivalent of a statement that he did escape, in view of his plea of guilty to the charge. He does not attack the validity of his original incarceration but, so far as we can tell, relies solely upon the fact that the stealing charge was dismissed at substantially the time he was sentenced for the escape; however, this was long after his actual escape.

The case of State v. King, Mo., 372 S.W.2d 857, involved the attempted escape of three inmates of the penitentiary. While the escape charge against King was pending, he sought to attack the validity of his original fifteen year sentence for robbery, doing so in a court which had no jurisdiction of that proceeding. The appeal was from his conviction for the attempted escape, and the court held that his claim of the invalidity of the prior conviction (which was the cause of his being in the penitentiary) could not affect the validity of his escape conviction. In so ruling the court said, in part quoting, loe. cit. 859: “As of course an escape presupposes a lawful custody, but a prisoner may not defy his custodian merely because his sentence is irregular or voidable. 30 C.J.S. Escape § 5 a c pp. 1143, 1144. It may be assumed that one charged with an attempt to escape may defend ‘by showing that he * * * was not “lawfully” imprisoned at the time of the alleged escape.’ Annotation 70 A.L.R.2d 1430, 1434; 30 C.J.S. Escape §§ 10, 15, pp. 1147, 1148. Nevertheless, for reasons which need not be repeated here, ‘(n)ot necessarily inconsistent with the rule that escape is justifiable where the imprisonment is “unlawful” are a number of cases holding that where the imprisonment is under color of law, the prisoner is not entitled to resort to self-help but must apply for his release through regular legal channels, even though he might be able to show such defects in the procedure by which he was arrested, tried, sentenced, committed or imprisoned as to justify or require his release on appeal or habeas corpus.’ 70 A.L.R.2d l. c. 1437.”

In State v. Shirley, 233 Mo. 335, 135 S.W. 1, the defendant was' contesting the validity of his custody by a constable from whom he escaped; the court said, quoting from Turner v. Wilson, 49 Ind. 581, loc. cit. 585: “ ‘A person arrested by law and put in the custody of the law remains in custody either actually or potentially until discharged according to law.’ ” There are sundry authorities on this subject from other states and from the federal courts. In Godwin v. United States (C.A. 8), 185 F.2d 411, the defendant was indicted in Florida, arrested in Texas, arraigned, and confined in an Arkansas jail; he escaped about seven days after his arrest and four days after his formal commitment; he was subsequently indicted and convicted for the escape. Just prior to the return of the indictment for escape, the original Florida indictment was dismissed, but this action was taken approximately six months after his actual escape. On appeal the defendant contended that the dismissal of the indictment “had the effect of validating his escape.” The court said, 185 F.2d loc. cit. 413: “The defendant now contends that he is entitled to a reversal of the judgment on the grounds that, at the time he escaped, he was not being held under legal process and that the subsequent dismissal of the Florida indictment had the effect of validating his escape. We think there is no merit in these contentions. The defendant could not test the propriety of his confinement in the Miller County jail by forceably escaping from it. Aderhold v. Soileau, 5 Cir., 67 F.2d 259, 260; Bayless v. United States, 9 Cir., 141 F.2d 578, 579-580. At the time of his escape, the defendant was a federal prisoner in custody by virtue of process issued under the laws of the United States within the meaning of Sec. 751, Title 18, U.S.C.A. The subsequent dismissal of the Florida indictment in December, 1949, is of no legal consequence in the instant case.” See also: State ex rel. Wilson v. Culver, Fla., 110 So.2d 674; People of the State of Illinois v. Hill, 17 Ill.2d 112, 160 N.E.2d 779; United States v. Jerome (C.A. 2), 130 F.2d 514; People of the State of California v. Jones, 163 Cal.App.2d 118, 329 P.2d 37; Lucas v. United States (C.A. 9), 325 F.2d 867.

The authorities hold that neither the i actual guilt nor innocence of the defendant upon the original charge, the invalidity of the original information or indictment, his subsequent acquittal, or the reversal of his conviction on appeal, constitutes any defense to the subsequent, independent andj substantive charge of escape. Hill, Godwin and Jerome, supra; Tann v. Commonwealth of Virginia, 190 Va. 154, 56 S.E.2d 47; People v. Ah Teung, 92 Cal. 421, 28 P. 577, 15 L.R.A. 190; Moore v. Commonwealth of Kentucky, 301 Ky. 851, 193 S.W.2d 448, 163 A.L.R. 1134; Jones v. State, 158 Miss. 366, 130 So. 506; Ex parte Ah Bau, 10 Nev. 264; Commonwealth ex rel. Banky v. Ashe, 142 Pa.Super. 396, 16 A.2d 668; Bayless v. United States (C.A. 9), 141 F.2d 578, certiorari denied 322 U.S. 748, 64 S.Ct. 1157, 88 L.Ed. 1580.

It thus clearly appears that defendant was lawfully arrested and imprisoned upon a criminal charge and a warrant regularly filed and issued, which procedure he does not attack even now, except for the collateral fact that the charge was dismissed some three months after his escape. We do not know the reasons for the dismissal, nor are they material. The defendant had no right to determine for himself the validity of the stealing charge against him by breaking jail; he could only be discharged according to law. The present motion merely constitutes an attack upon the subsequent and substantive conviction for escape, and the fact of the dismissal of the prior charge is wholly immaterial.

The other point, which will require little discussion, is that the present information is defective because it was verified by the Prosecuting Attorney upon information and belief. We shall assume this to be true, although the verification is not shown in the transcript. Both our Criminal Rule 24.16 and § 545.240, RSMo 1959, V.A.M.S. expressly provide that the Prosecuting Attorney may verify an information upon information and belief. “The verification of the information by a prosecuting attorney may be upon information and belief, as this one is. Section 545.240 RSMo 1959, V.A.M.S. It is only where the information is supported by the affidavit of a private individual that such person must have actual knowledge of the offense; where the prosecutor verifies the information it may be based ‘upon such information as he may feel warranted in believing and relying upon.’ State v. Stewart, 274 Mo. 649, 204 S.W. 10, 12, and cases there cited. The point is wholly without merit.” State v. Statler, Mo., 383 S.W.2d 534, loc. cit. 536. In State v. Bonner, 178 Mo. 424, 77 S.W. 463, cited by defendant, the information was not verified at all.

The trial court, having considered the motion and “the files and records,” found that the conviction and sentence were not violative of the Constitution and laws of the United States or of the State of Missouri, that the court had jurisdiction, that the sentence was not illegal or subject to collateral attack, and that defendant was not entitled to any relief. From the face of the record and defendant’s own motion the action of the trial court was correct.

The judgment is affirmed.

All of the Judges concur.