text:
    Martha COOMBS, Appellant, v. Leon FAZZIO, Jr., Appellee.
    No. 14336.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 13, 1965.
    Rehearing Denied Feb. 10, 1965.

      Evans & Egger, Mauermann & Crites, San Antonio, for appellant.
    Pat Maloney, San Antonio, for appellee.
   BARROW, Justice.

This suit was brought by appellant, Martha Coombs, seeking damages from ap-pellee, Leon Fazzio, Jr., for breach • of promise to marry. The jury found that the parties had entered into a valid contract to marry, which was not mutually abandoned, and found damages to appellant in the amount of $7,000.00. A take-nothing judgment was entered, however, upon the jury’s finding to Question No. 3, that the appellee did not know of the prior unchastity of appellant at the time the parties entered into the agreement to marry.

Appellant urges that there were'no pleadings to justify the giving of this issue. She further complains that the issue as given was not proper because appellee not only knew of her unchastity at the time of the agreement, but admittedly had illicit intercourse with her for several months prior thereto. Appellant also urges that the issue did not establish a defense, in that no question was submitted as to whether appellee was induced to enter into the agreement by any false representation of fraud on the part of appellant.

It is a general rule that illicit intercourse of the plaintiff prior to the promise to marry and then unknown to the defendant, is a defense to an action for breach of promise to marry,, since it violates the implied representation by the promisee that she is chaste. 12 Am.Jur.2d, Breach of ’Promise, § 24; 11 C.J.S. Breach of Marriage Promise § 14 f (2); Barrett v. Vander-Meulen, Ct. of App. of Ky., 94 S.W.2d 983; Kent v. Buchanan, 80 U.S.App.D.C. 50, 149 F.2d 289; Foster v. Hanchett, 68 Vt. 319, 35 A. 316. This rule has been recognized in Texas. Vogt v. Guidry, Tex.Civ.App., 220 S.W. 343, wr. ref.; Freeman v. Bennett, Tex.Civ.App., 195 S.W. 238, wr. ref.

The burden was upon appellee to plead, prove and secure findings to establish this affirmative defense. Rule 94, Texas Rules of Civil Procedure; Robinson v. Shockley, Tex.Civ.App., 266 S.W. 420, no wr. hist.; Freeman v. Bennett, supra. Ap-pellee specifically denied entering into a marriage agreement with appellant ’and further pleaded: “Answering further, Defendants allege that shortly after defendant Leon Fazzio began dating Plaintiff (from which relationship .she claims a breach of contract of marriage), he discovered that the plaintiff’s general reputation did not warrant any serious affections on his part toward her. Therefore, as^ suming, but not admitting, that there ever was any serious intentions on 'his part; such thoughts, ’pronouncements and actions were abrogated by him upon discovery of such shocking information.” There were no exceptions made by appellant to this pleading.

Appellant did not .waive- any lack of pleadings and try this issue by implied consent, in that she timely objected to the submission of Question No. 3-for lack of pleadings. Rule 67, T.R.C.P. Harkey v. Texas Employers’ Ins. Ass’n, 146 Tex. 504, 208 S.W.2d 919. Appellee did not thereafter file a trial amendment.

It is our opinion that the pleadings of appellee do not raise the issue of fraud by appellant through her prior unchastity. There is a significant difference in the legal effect of a pleading of bad general reputation of the promisee and one pleading false representation as to her chastity, in that reputation is admissible in mitigation of damages, whereas, prior unchastity unknown to defendant is a bar to the action. In Freed v. Killman, 192 Miss. 643, 6 So.2d 909, the rule is stated that since loss of reputation is one of the elements of damage for breach of promise, evidence that the character or general reputation for chastity of the plaintiff is bad, is admissible on behalf of the defendant in mitigation of the damages. In Foster v. Hanchett, supra, it is recognized that general reputation of bad character as to chastity is not a bar to an action for breach of promise.

This distinction is recognized in Texas. In Vogt v. Guidry, supra, it was held that unchastity may be proved in defense of a breach of promise to marry, and that evidence of bad character in other respects may be shown in mitigation of damages. The trial court erred in overruling appellant’s objection to the submission of Question No. 3 for want of pleadings. This issue not being based upon pleadings, the finding of the jury was immaterial and the trial court erred in granting judgment for appellee upon same. McDonald, Texas Civil Practice, § 17.31; Sproles v. Rosen, 126 Tex. 51, 84 S.W.2d 1001; Camco, Inc. v. Evans, Tex.Civ.App., 377 S.W.2d 703, 707, wr. ref. n. r. e.; Hodges v. Nix, Tex.Civ.App., 225 S.W.2d 576, wr. ref., n. r. e.

Furthermore, the defense of fraud by reason of appellant’s prior unchastity is not established by the jury’s finding to Question No. 3. In Vogt v. Guidry, supra, the applicable rule as to the elements of fraud to vitiate a contract to marry was stated as follows: ‘We think it is well settled that a fraud of such a kind, in its essential elements, as would invalidate an ordinary contract, is a good defense to an action upon a contract to marry.’ ” It is seen that the general rule that prior unchas-tity of the plaintiff unknown to the defendant bars the plaintiff’s cause of action for breach of promise, is based upon an implied representation of chastity by the plaintiff, which if false, or a misrepresentation, constitutes fraud vitiating the contract to marry. It is our opinion that the evidence in this case raises a fact issue as to whether there was such an implied representation by the appellant.

Appellant admitted that in 1957 she had sexual relations with another man. Appel-lee testified that when he gave the engagement ring to appellant on October 15, 1960, he did not know of her prior sexual relations with any one other than himself, and that she had led him to believe that she was a virgin prior to their own relationship. Appellee admitted, however, that he . had illicit relations with her on their second date (May 11, 1960), and frequently thereafter for several months before there was any discussion or consideration of marriage by the parties. Appellant confirmed the illicit intercourse between the parties before any consideration of marriage. In . view of the almost immediate illicit relations between the parties, a fact issue was raised as to whether there was a misrepresentation of her chastity by appellant. Robinson v. Shockley, supra. This point was properly preserved by appellant’s objection to the charge for failure to submit this essential element of fraud. The affirmative defense of fraud was not established by the finding to Question No. 3. •

Appellant is entitled to judgment upon the jury findings on Questions Nos. 1, 2 and • 4, -and the trial court erred in overruling hermotion for judgment on the verdict. The ' judgment of the trial court is therefore reversed and here rendered that appellant recover from appellee damages in the amount of $7,000.00, with interest thereon from April 20, 1964,at the rate of six per cent per annum.

Reversed and rendered.

      . “QUESTION NO. 1.
      “Do you find from a preponderance of the evidence that between September I, 1960, and October 15, 1960, plaintiff, Martha Coombs, and defendant, Leon Pazzio, Jr., entered into a valid and binding contract to’ marry?
      “We, the jury, answer: Yes.
      “QUESTION NO. 2.
      “Do you find from a preponderance of the evidence that after the parties entered into such valid and. binding contract to marry, if any such marriage •contract you have found, plaintiff, Martha •Coombs, and defendant, Leon Pazzio, J.r., mutually abandoned suqh agreement?
      “We, the jury, answer: No.
      “QUESTION NO. 3.
      “Do you find from a preponderanee-'of the evidence that the defendant, Leon Eazzio, Jr., did not know of the prior un-chastity of the plaintiff, Martha Coombs, at the time that the parties entered into the agreement to marry, if any?
      “We, the jury, answer: He did not know.
      “QUESTION NO. 4.
      “What'amount of money if paid in 'cash now do you find from a preponderance of the evidence would reasonably compensate the plaintiff, Martha Coombs, for the failure of the defendant, Leon Fazzio, Jr., to-comply with his -promise, if any, of marriage? ...
      “We, the jury, answer: $7,000.00”


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    Ditt L. GOATES et vir, Appellants, v. Mozell INGRAM et vir, Appellees.
    No. 3944.
    Court of Civil Appeals of Texas. Eastland.
    Jan. 15, 1965.
    Rehearing Denied Feb. 12, 1965.

      Hardeman, Smith & Foy, San Angelo, for appellants.
    Robinson & Wilson, Abilene, for appel-lees.
   WALTER, Justice.

Mr. and Mrs. Leburn Ingram sued Mr. and Mrs. Virgil Goates for damages as a result of an automobile collision. Mrs. Ingram was traveling East on South 11th Street and Mrs. Goates was traveling South on Butternut Street in Abilene and collided at the intersection which is controlled by a traffic light.

The jury found that the light was red for South bound traffic, that Mrs. Goates failed to stop for the red light and that such failure was a proximate cause of the collision ; that Mrs. Goates failed to keep a proper lookout, which was a proximate cause of the collision, and that Mrs. Goates failed to have her car under proper control, which was negligence and a proximate cause of the collision. The jury did not find Mrs. Ingram guilty of any act of negligence which was a proximate cause of the collision. The jury found $12,000.00 damages for personal injuries. Judgment was rendered for the Ingrams and the Goates have appealed.

Appellants contend there was jury misconduct because it received testimony from a member during their deliberation regarding (1) the intersection and the traffic signal light and (2) “in discussing and considering the need for and cost of future psychiatric treatment” for Mrs. Ingram, because same was not an issue.

The court found that there was no jury misconduct. It is contended that the testimony of the two jurors who testified on the hearing on the motion for a new trial was so uncertain and contradictory as to warrant such finding. It is true that where the testimony is inconsistent and contradictory the court in passing upon the credibility of the witnesses may disregard the testimony. Monkey Grip Rubber Company v. Walton, 122 Tex. 185, 53 S.W.2d 770. The court is also warranted in finding there was no misconduct where the testimony is conflicting. Price v. Biscoe, 141 Tex. 159, 170 S.W.2d 729.

The overt acts which Mrs. T. A. Horns-by, one of the jurors, testified to are substantially as follows: While we were considering the first special issue, whether the light was red for South bound traffic at the time and on the occasion of the accident, one of the jurors said that he lived in the vicinity of the intersection. He said that he had gone by there oñ his way to lunch and had noticed the light. He said the amber light stayed on “for a short while”. She was asked “Now, Mrs. Hornsby, after Mr. Jungbert had related to you his personal observation of the light there, did the Jury take another vote on that first issue?” She answered “No. Mr. Decker raised the question that the light was red. And we were instructed not to let any personal experiences or anything like that enter into it.” Mr. Jungbert did not say which side of the light he observed.

Mr. H. A. Seidel, one of the jurors, testified substantially as follows relative to the light: I remember one of the jurors stating that he lived near the intersection where the collision occurred. I do not remember the juror discussing the traffic light nor the fact that he had seen it when he went home to lunch, I do 'not remember the juror saying that the amber light at the intersection was shorter than the average amber light. We answered special issue number I but just when I don’t know.

Mrs. Hornsby testified substantially as follows relative to psychiatric treatment: Dr. Barker had testified that Mrs. Ingram needed psychiatric treatment. Someone thought the reason that she didn’t see a pyschiatrist was because it was too expensive. Mr. Seidel, our foreman, read the court’s charge and told us what we were to consider. The cost of psychiatric treatment was not in evidence. One of the jurors.related something about a relative of hers and said that psychiatrists only treated crazy -people and that such treatment was expensive. After the matter of psychiatric treatment and cost was mentioned and Mr. Seidel told us we were not-to consider it, there was no further discussion of that matter.

Whether or not jury misconduct occurred is a question of fact but whether or not injury probably resulted is a question of law. Rule 327, Texas Rules of Civil Procedure. Trousdale v. Texas & New Orleans Railroad Company, Tex.Civ.App., 264 S.W.2d 489 affirmed 154 Tex. 231, 276 S.W.2d 242. Appellants have the burden of proving by a preponderance of the evidence that such misconduct occurred and that such misconduct probably resulted in injury to them. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462. The testimony was so uncertain and inconsistent that the court was warranted in finding that no misconduct occurred. However, if we be mistaken about this, when we consider the matter in the light of the entire record, we find there is no showing that such misconduct,' if any, probably resulted in injury to appellants.

Dr. Barker testified when he' first saw Mrs. Ingram after thev wreck “She was in a violently agitated state, with a very marked tremor.” He had observed her for a period of nine months, had given her nineteen different prescriptions and testified that in his opinion her condition had remained about the same as it was when he first saw her. He described her condition as “an acute anxiety state.” He said that she was extremely nervous and unable to hold anything in her hand for any period of time and unable to do any type of physical work. He further testified that in his opinion her present condition will be permanent and in his opinion the automobile accident was the cause of her condition.

Mr. and Mrs. Ingram testified, in effect, that Mrs. Ingram was in good health before the accident. Lay witnesses testified in effect, that from their observation of Mrs. Ingram she appeared to be in good health before the accident but that she was a nervous wreck after the accident.

We have considered- all the evidence and find that the jury’s answers are not against the great weight and preponderance of the evidence. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

We have considered appellants’ point on excessiveness of the verdict in the light of all the facts arid circumstances, in the' record and have concluded that the verdict is not excessive. World Oil Company, Inc. v. Hicks, 129 Tex. 297, 103 S.W.2d 962; Dallas Railway & Terminal Company v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017;. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835; Gulf, Colorado and Santa Fe Ry. Co. v. DeLeon, Tex.Civ.App., 373 S.W. 2d 886, (Writ Ref. N.R.E.).

We have considered all of appellants’ points- and find no merit in them. They are overruled.

The judgment is affirmed.


author: MAUGHMER, Commissioner.

text:
    Mary K. JACKSON, Plaintiff-Appellant, v. Freda F. WHITAKER, Defendant-Respondent. Elsie M. JACKSON, Plaintiff-Appellant, v. Freda F. WHITAKER, Defendant-Respondent.
    Nos. 24014, 24015.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 1, 1965.
    Application to Transfer Denied March 8, 1965.
    Robert B. Langworthy, John R. Cleary, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, Poague, Brock & Wall, Clinton, of counsel, for appellants.
    William J. Cason, Harold L. Caskey, Clinton, for respondent.
   MAUGHMER, Commissioner.

These two actions have been consolidated for the appeal. In each the plaintiff seeks $15,000 as damages for personal injuries allegedly sustained in an automobile accident. The trial court sustained the defendant’s motions for summary judgment and plaintiffs have appealed.

The facts upon which these lawsuits were ruled in the trial court and which will be decisive on appeal are not in dispute. They are established in the transcripts by the pleadings, admissions and certified copies of the records of other courts. The disagreement concerns the legal result. Defendant contends (a) the actions are barred by the statute of limitations and (b) the issues as to defendant Elsie M. Jackson became res judicata because of a prior judgment. Plaintiffs present opposite views. The trial court sustained defendant’s position generally, but without indicating whether it did so on ground (a) or (b) or both.

On April 8, 19S6, Benton Jackson, his wife, the present plaintiff Elsie M. Jackson, and his daughter Mary K. Jackson, the other present plaintiff, were riding in an automobile driven by Benton Jackson, when it came into collision with an automobile driven by defendant Freda F. Whitaker. This collision occurred in Benton County, Missouri. Defendant Freda F. Whitaker was a resident of Benton County. The Jacksons were all three residents of Bates County, Missouri. Benton Jackson died that day as a result of injuries and both Elsie M., his wife, and Mary K., his daughter, sustained personal injuries.

On April 20, 1956, Mary K. Jackson was appointed administratrix of the estate of Benton Jackson by the Probate Court of Bates County. Letters testamentary were issued, duly published and she acted as administratrix of her deceased father’s estate.

On December 19, 1956, Elsie M. Jackson filed suit against defendant for personal injuries and as surviving widow for the wrongful death of her husband. On this same date, Mary Jackson filed suit against defendant for personal injuries. These suits were brought in the Circuit Court of Benton County, where the collision occurred and where defendant resided. The wrongful death action went on change of venue to Henry County, where trial was had on August 1, 1958, resulting in a verdict and judgment for defendant. Defendant says the trial and judgment in the Henry County suit brought the same parties into court and contested the same issues as are involved in the widow Elsie’s present lawsuit and therefore under the res judicata doctrine that suit was properly dismissed. We doubt that the issues litigated in the Henry County trial concerning the negligence of defendant and Benton Jackson, deceased operator of the Jackson vehicle, are precisely the same as would be those between defendant and a guest or passenger in the Jackson automobile. In order to have estoppel by a former action there must be an identity of (1) the thing sued for; (2) the cause of action; (3) the persons and parties and (4) the quality of the person for or against whom the claim is made. Norwood v. Norwood, 353 Mo. 548, 183 S.W.2d 118, 122; McIntosh et al. v. Foulke et al., 360 Mo. 481, 228 S.W.2d 757, 761. We question if all four identities are here present. However, we do not rule the appeal on this point. The other two suits, the one by Mary K. for her personal injuries, and the one by Elsie M. for her personal injuries, were prior to March 31, 1961, dismissed without prejudice in the Circuit Court of Bates County.

After the Henry County trial in August, 1958, the controversies languished without any activity until March 31, 1961, when two quick actions or incidents occurred: (1) Mary K. Jackson, with the approval of the Probate Court of Bates County, withdrew as administratrix and Herman M. Swof-ford, a resident of Jackson County, Missouri, was .by the Probate Court of Bates County appointed administrator de bonis non and qualified as such, and (2) on the same day two lawsuits were filed in the Circuit Court of Jackson County,, to-wit: an action by Mary K. Jackson (still a resident of Bates County) against Freda F. Whitaker and Herman M. Swofford, administrator de bonis non of the estate of Benton Jackson, deceased, for personal injuries allegedly sustained in the collision, and an action by Elsie M. Jackson (still a resident of Bates County) against the same defendants for personal injuries allegedly sustained by her in the same collision. Summons in each case was issued and served upon Swofford in Jackson County and upon Freda F. Whitaker in Benton County. The administrator de bonis non filed answer to the merits. Defendant Freda F. Whitaker appeared specially and moved for a dismissal of the actions as to her.

Although the first publication of letters occurred on April 26, 1956, none of the plaintiffs in any of the actions filed has ever complied with the provisions of the non-claim statutes, Sections 473.360, 473.363, 473.367, 473.370, V.A.M.S.1959. These statutes in effect bar as to estates or heirs any claim which is not filed in the probate court within nine months after first publication of letters. State ex rel. Whitaker v. Hall, Circuit Judge, Mo., 358 S.W.2d 845, was an original action in prohibition, wherein the defendant Whitaker sought to prohibit the Circuit Court of Jackson County from taking any further action in either of the two Jackson County suits. The Supreme Court en banc, held that: “ * * * inasmuch as the actions pending against the administrator were long since barred by the provisions of the non-claim statutes * * * he is not a legitimate defendant so as to render his co-defendant, relator, subject to being sued in Jackson County * * and prohibited the Jackson County Circuit Court from proceeding further in said suits. The Supreme Court therein further ruled that the non-claim statute provisions are jurisdictional as to the administrator, who cannot waive same by consent, entry of appearance or by filing answer. Instead of incorporating herein the citations and reasoning of this Supreme Court opinion so concluding and thereby unduly and, we think, unnecessarily extending the length of this opinion, we invite those interested in the details to read the Supreme Court opinion.

On June 8, 1963, plaintiffs filed the two suits now before us. Section 516.100, V.A. M.S.1959, provides in part: “Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued * * *

Continuing in this Statutes of Limitations chapter and declaring the limitation periods in which actions for personal injuries may be commenced we find the following in Section 516.120, V.A.M.S.1959:

“Within five years: * * *
“(4) An action * * * for any other injury to the person or rights of another, not arising on contract and not herein otherwise enumerated;”.

Defendant pleaded these limitations statutes and followed with a motion to dismiss.

The collision occurred on April 8, 1956. These two lawsuits were filed on June 8, 1963, or seven years and two months thereafter. Manifestly these actions were filed more than five years after the causes of action accrued and are barred unless there is some saving statute or law which will toll the statute or save the plaintiffs from its application. Plaintiffs agree and concede that this is so. However, they assert that their actions are saved by the provisions of Section 516.230, V.A.M.S.1959. Plaintiffs suggest no other or additional method of survival. Section 516.230, to the extent here pertinent, provided:

“If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.-370, and the plaintiff therein suffer a nonsuit, * * * such plaintiff may commence a new action from time to time, within one year after such non-suit suffered * * *

The first suits brought by these plaintiffs namely those commenced in Benton County, December 19, 1956, were timely brought. But after suffering defeat in the wrongful death action in Henry County, plaintiffs dismissed those suits and the present actions were not brought within one year thereafter.

It is plaintiffs’ sole contention on appeal that (1) the suits in Jackson County filed March 31, 1961, were within the five year limitation period (which would have expired on April 8, 1961), and (2) plaintiffs suffered a nonsuit, within the meaning of Section 516.230, supra, when they dismissed the Jackson County cases without prejudice, or the same were stricken from the docket and (3) the present suits in Benton County were commenced within one year thereafter as authorized by the statute.

We agree with plaintiffs’ contention that the Jackson County suits were filed within the five year period and with number (3) that the pending Benton County cases were commenced within one year after the Jackson County cases were disposed of, hut we are unable to agree that plaintiffs “commenced” the Jackson County cases and suffered a “nonsuit” therein within the meaning of the statute so as to preserve or give them the right to maintain identical actions in Benton County within one year thereafter.

In the case of Conrad v. McCall, 205 Mo.App. 640, 226 S.W. 265, plaintiff had a trial court judgment for damages founded upon an alleged assault. The suit was commenced after expiration of the limitation period but plaintiff had sued defendant and his brother in time in a county where defendant did not reside, had failed to get service and had finally dismissed. He interposed there, as here, a contention that he had suffered a nonsuit in the earlier suit and therefore the instant proceeding brought within one year thereafter, even though after expiration of the two year limitation period was not barred. On appeal the judgment for plaintiff was reversed outright. We quote pertinent parts of the opinion:

“Under these facts we have reached the conclusion that plaintiff’s present suit filed in McDonald county, where defendant resided at all times, is not saved from the bar of limitations by reason of his prior attempted suit in Newton county. In the first place, we think that it cannot be properly said that plaintiff ‘suffered a nonsuit’ in Newton county. The statute has been liberally construed to include voluntary nonsuits or dismissals of pending cases; hut where the court has acquired no jurisdiction of the named defendant and is powerless to do anything, except -perhaps to clear its docket of a pretended case not properly before the court, it-can hardly be said that there is a pending case. The action of that court in dismissing that case for want of prosecution was, in effect, striking it from the docket as that is all the court could do. There was no case pending and consequently no nonsuit suffered”.

In Mertens v. McMahon, Mo.App., 115 S.W.2d 180, 183, plaintiff had a judgment for work, labor and tools. The instant suit was begun after expiration of the limitation period. Plaintiff had brought other suits in counties where defendant did not reside. Defendant had appeared specially in those suits challenging the jurisdiction. Plaintiff had thereupon dismissed. He claimed the disposals of those cases were nonsuits within the meaning of the statute, thereby saving his cause of action from the limitations period and permitting him to bring another suit within one year. The appellate court refused to adopt that position and speaking of the earlier suits, said:

“That court did not have jurisdiction and never did acquire jurisdiction over the defendant and was, therefore, never in a position to try that cause. That cause having been dismissed without the court ever having acquired jurisdiction, the legal situation is the same as though that suit was never filed ”.

The Supreme Court in Phillips v. Whittom et al., 354 Mo. 964, 192 S.W.2d 856, 857, followed the Conrad and Mertens cases. There plaintiff brought his first suit in Putnam County where none of the parties resided. The Supreme Court refused to disturb the judgment of the trial court abating an action brought later in a proper forum. The court commented upon and to an extent clarified the rule by declaring:

“The rule announced in the Wente case is that if the plaintiff makes an ‘innocent mistake’ in filing his previous action he will not be denied the benefit of the tolling provision of the statute. * * * Good faith, however, generally imposes a duty on the obligor to use reasonable diligence — the diligence that an honest man of ordinary prudence is accustomed to exercise. * * * The ■defendant in the litigation also has some rights, and is entitled to complain ■of an unreasonable and unjust abuse of the process of the courts”.

In their brief plaintiffs refer to the Mer-tens case and in an effort to distinguish it on the facts from their cases, state: “Plaintiff (Mertens) had joined a non-necessary party who resided in the county for the purpose of conferring jurisdiction. The Court held that the prior suit was not the ■commencement of a suit so as to toll the ■statute of limitations. In the instant cases the administrator de bonis non of the Benton Jackson estate was a proper and necessary party to the Jackson County actions in■stituted by the plaintiffs”. The trouble with this statement is that the Supreme Court in State ex rel. Whitaker v. Hall, supra, refutes it beyond dispute and actually declares the contrary. The Supreme Court therein ruled that (1) the action as to the estate was barred under the nonclaim statute, (2) the administrator de bonis non was not a necessary defendant or a legitimate defendant or even a permissive defendant so as to permit joining Freda Whitaker, a resident •of Benton County, with him as a defendant In Jackson County, and (3) prohibited absolutely any action by the Circuit Court of Jackson County in those suits.

We quote from 54 C.J.S. Limitations of Actions § 271 on this point. Plaintiffs in their brief have invited our attention to the italicized portions thereof:

“Another view is that, where plaintiff knows that neither he nor defendant is a resident of the county where suit is filed, there is merely the filing of a pretended suit and, for limitation purposes, it will not be considered that any suit has been filed, but that the suit mill ■be considered as filed where, although ■it is brought in a county where neither „plaintiff nor defendant resides, it is filed in good faith, under an honest mistake, and without negligence or carelessness; * ‡ ?Jc if

Appellants have submitted and we have reviewed some additional opinions which appear to soften the cold impact of the Conrad and Mertens cases.

In Wente v. Shaver, 350 Mo. 1143, 169 S. W.2d 947, 953, 145 A.L.R. 1176, the Supreme Court considered a situation where plaintiff (a resident of St. Louis County) brought a wrongful death action against defendant (also a resident of St. Louis County) in the Circuit Court of the City of St. Louis, and being unable to secure proper service, took a nonsuit. Plaintiff, within one year thereafter, but after expiration of the limitations period, sued defendant in St. Louis County and had service. The Supreme Court held that the suit brought in the City of St. Louis saved the cause of action from death by limitations and that the suit brought in a proper forum within one year after suffering nonsuit was brought in time. The reasoning of the court and its conclusions as to the law applicable may be understood, we believe, if some excerpts from the opinion are weighed and considered.

In distinguishing the result reached from the ultimate conclusion arrived at in the Conrad and Mertens cases, the court commented : “It will be noted that in the Conrad case and the Mertens case the plaintiff knew that the defendant did not reside in the county where the suit was filed”. In our case plaintiffs knew at all times that defendant Whitaker was a resident of Benton County. There is no suggestion to the contrary and plaintiffs had each, soon after the collision, sued defendant and procured service on her in Benton County.

The court also quoted with approval as follows from the opinion written by Judge Cardozo in Gaines v. City of New York, 215 N.Y. 533, 109 N.E. 594, L.R.A.1917C, 203: “A suitor who invokes in good faith the aid of a court of justice, and who initiates a proceeding by the service of process, must be held to have commenced an action within the meaning of this statute, though he has mistaken his forum”.

To the same general tenor and speaking for itself, the court said on page 953 of 169 S.W.2d: “So far as appears from the cases cited and from our own research, the saving statutes have been applied to non-suited litigants who have, by innocent mistake, filed their cause in the wrong forum”. Furthermore, it affirmatively appeared from the record that one of plaintiff’s attorneys checked the Greater St. Louis telephone directory seeking the address of defendant Nellie Shaver, who was a doctor, and from the listing found therein had reason to believe that she was a resident of the City of St. Louis. There appears no evidence indicating that plaintiff or her attorney knew defendant resided in the county.

The question was again considered by the Supreme Court in Tice v. Milner, Mo., 308 S.W.2d 697, 703, a suit for wrongful death arising from an automobile accident. The accident occurred in Dunklin County, Missouri. Morrell, the driver of the defendant's car and a resident of Tennessee, was also killed. The guardian for the Tice minor plaintiffs caused the Probate Court of Dunklin County to appoint a personal representative for Morrell and then on March 30, 1954, sued him in the Circuit Court of Dunklin County, and joined Milner, owner of the car and a resident of the City of St. Louis. They were seeking to take advantage of Section 537.020, V.A.M.S. as it was then written. The service of process phase of this statute was declared unconstitutional on September 13, 1954, in Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763. Eleven months and three days later plaintiff dismissed in Dunklin County and five months and 14 days thereafter filed a suit in the City of St. Louis, the proper forum. The court ruled that such suit was not barred and said: “Process served under an unconstitutional statute is invalid, of course, but it certainly is not negligence to institute an action in reliance on a statute not then known or declared to be unconstitutional”.

In the Tice opinion reference is made to the Conrad, Mertens, Phillips and Wente cases, supra. All are recognized as declaring the existing law. Neither case is overruled or modified. The Tice case is distinguished, as are each of the other four cases, on the facts.

We shall not attempt to determine or say either way if the Jackson County cases were filed in “good faith” or under an, “honest mistake” within the meaning of those phrases as used in the cases we have reviewed defining the meaning. However,, we cannot conclude that the Jackson County cases were brought without an undue and unreasonable amount of negligence. We-restate some of the facts which impel us to. that conclusion: (1) The collision occurred in Benton County; (2) defendant at alll times was a resident of Benton County, which fact plaintiffs and their counsel well knew, having once sued her in that jurisdiction ; (3) plaintiffs were at all times residents of Bates County; (4) for almost five-years one of the plaintiffs had served as administratrix of Benton Jackson’s estate and (5) they knew or should have known that, the administrator de bonis non was not a. legitimate defendant. We shall elaborate-as to this feature.

The Probate Code with the nonclaim statute was enacted and became effective in. 1957. It was given wide publicity, especially among lawyers. On November 9, 1959,. the Supreme Court in Clarke v. Organ, 329' S.W.2d 670, handed down a decision strictly interpreting the nonclaim statute, holding-it to be mandatory and a jurisdictional prerequisite. Plaintiffs and their attorneys, knew a all times that defendant was a resident of Benton County. In March, 1961, a. few days before expiration of the limitation-period, a rapid sequence of events took-place; (1) Plaintiff Mary K., after having; been appointed administratrix in April, 1956, withdrew as such; (2) on the same day the administrator de bonis non was appointed; (3) on the same day suits were filed in Jackson County by plaintiffs against the administrator de bonis non and defendant; (4) the administrator de bonis non filed answer. Under all of these circumstances we are unable to conclude that the plaintiffs and their attorneys were free from negligence and carelessness in bringing the Jackson County suits. They knew or should have known for quite some time what the Supreme Court told them so unequivocally in the prohibition suit.

We do not believe any lawsuit was “commenced” in Jackson County within the meaning of Section 516.230, supra. The Supreme Court has squarely ruled the Jackson County Circuit Court was without jurisdiction. We further question if plaintiffs •suffered a “nonsuit” within the meaning of the statute. After the prohibitory order of the Supreme Court all the Jackson County 'Circuit Court could lawfully do was to purge its docket of these cases. Finally, the theory of plaintiffs falls and we rule that the Jackson County suits were not filed under a reasonable mistake, but that plaintiffs .and their attorneys knew or should have hnown same were not legally maintainable. Therefore, under the authorities referred to herein we find that plaintiffs’ present lawsuits are barred under the statutes of limitations and the trial court properly sustained the motions for summary judgment.

No other alleged errors having been presented and we having found none, the judgments entered below in both cases are affirmed.

SPERRY, C, concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER, <C., is adopted as the opinion of the Court.

All concur.


author: 'RUARK, Presiding Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Plaintiff-Appellant, v. C. R. NEWINGHAM and Ann Newingham, his Wife, and E. H. Mallett and Mildred Mallett, husband and wife, Robert A. Smith, Trustee, and John Hancock Mutual Life Insurance Company, Defendants-Respondents.
    No. 8373.
    Springfield Court of Appeals. Missouri.
    Jan. 20, 1965.

      John Mohler, Leo Eickhoff, and Donald' King, St. Louis, Harry C. Blanton andl Bernard C. Rice, Blanton, Blanton & Rice,. . Sikeston, for plaintiff-appellant.
    'Harry H. Bock, Bock & Jones, Ncw-Madrid, for defendants-respondents.
   'RUARK, Presiding Justice.

This case involves the question of wheth-er or not a telephone company may condemn for the purpose of laying underground cables. The Southwestern Bell Telephone Company (hereinafter referred to as the ■Company) filed petition against Newingham and others (hereinafter called Owners) to appropriate an easement one rod in width ■across Owners’ land in order to construct, •operate and maintain an underground communications system, consisting of underground cables, wires, conduits, and other necessary appurtenances below the surface, with right to clear and maintain the strip, both surface and sub-surface, of trees, roots, and other obstructions. The petition did not specify or restrict the depth (or shallowness) of the contemplated -cables below the surface. Owners filed motion to dismiss based on grounds that the Company had no authority under the 'laws of the State of Missouri to condemn easements across private property for un•derground cables or wires. The motion was sustained and the Company appealed.

Company contends it has the power of ■eminent domain for underground installations under the provisions of Section 523.-010 RSMo 1959, V.A.M.S. (the “general” condemnation statute) and buttresses its -contention by the fact that Sections 392.-130 and 392.200 (of the chapter regulating telephone and telegraph companies) require the company to furnish sufficient and adequate facilities to meet the communication needs of the public. Owners contend that Section 392.100 of the chapter relating to telephone and telegraph companies limits the right of appropriation therein granted to poles, piers, abutments, wires and other necessary fixtures over or above the ground; that this is demonstrated by the provisions of Section 392.080, which expressly give telephone and telegraph companies the right to put such installations along, across, or under public roads, streets, and waters; and that the appropriation of the sub-surface for wires and cables places a greater burden on private property than is contemplated by Section 392.100.

Subject to constitutional limitations, the discretion to exercise the sovereign power of eminent domain is in the Legislature and those to whom it delegates such function by statute. Since it is not disputed that a telephone company is engaged in a public service and the property taken by it for telephone line communications is for a public use (American Tel. & Tel. Co. of Missouri v. St. Louis & I. M. & S. Ry. Co., 202 Mo. 656, 101 S.W. 576, 583), our sole question is did the Legislature delegate to the telephone company the right to appropriate the sub-surface for such use?

The Respondents contend, and we think correctly, that the exercise of eminent domain is in derogation of the right of the citizen; that a statute delegating that power must be strictly construed, and the person or body claiming the right to exercise such delegated power must be able to point to the statute which either expressly or by necessary implication confers that right. But the rule of “strict construction” has no definite or precise meaning’. It has only relative application. It is not the opposite of liberal construction, and it does not require such a strained or narrow interpretation of the language as to defeat the object. The primary purpose of all statutory construction is to determine the intent of the Legislature; and all such rules are but vassals to the liege sovereign intent. See cases West’s Missouri Digest, Statutes,

The statutes involved have ancestral kinship. As to R.S. 392.100, V.A.M.S.: Chapter 72, page 43, Laws of 1866, dealt with magnetic telegraph companies. Section 6 of such Act authorized them to enter upon land of private persons in order to make surveys and to appropriate “so much of said lands as may be necessary to erect such poles, piers, abutments, wires and other necessary fixtures” as might from time to time be deemed necessary. The wording of such Act has come substantially unchanged down to 392.100, except that telephone companies were added (see Sections 874 and 886, R.S.1879). Section 5 of the 1866 Act granted to companies the right to set their poles, piers, abutments, wires and other fixtures along, upon, and across any of the public roads, streets, and waters of this state in such manner as not to incommode the public. By Section 2721, R.S.1889, such companies were granted the additional privilege of placing their wires, poles and other fixtures underneath such public roads, streets, and waters, and that, in substance, is the provision of our present R.S. 392.080, V.A.M.S.

In the Laws of 1866, in Chapter 73, page 47, immediately following the chapter dealing with telegraph companies, provision was made for proceedings for “the appropriation and valuation of lands taken for telegraph, macadamized, graded, plank or railroad purposes.” Section 1 of said Act provided for the determination of damages caused by the erection and maintenance of such utilities over such lands. This Act has been amended several times, and reenacted, until it now appears as R.S. 523.-010, V.A.M.S. It continued with the words “over such lands” until the Amendment of 1919 (Laws of 1919, page 207), when it was put in substantially its present wording insofar as is applicable to our question. In that Act, the words “over such lands” for the first time disappear from its language. In 1921, Laws 1921, p. 199, the section was repealed and a new section was enacted which broadened the scope of powers granted to electrical corporations but otherwise substantially followed the Act of 1919 and which is, in substance, our present Act. To paraphrase 523.010 (as applicable to the question here), “In case land * * * is sought to be appropriated by any * * telephone [and other named public utility companies], * * * or any * * * pipe line * * * engaged in the business of transporting or carrying oil or gas by means of pipes * * * laid underneath the surface of the ground * * * such corporation may apply * * * by petition setting forth the general directions in which it is desired to construct their [utility including telephone line] * * * pipe line or gas line over or underneath the surface of such lands, * * and praying the appointment of * * * commissioners * * * to assess the damages which such owners may severally sustain in consequence of the establishment, erection, and maintenance of such [named utilities including telephone line], * * * pipe line, or gas line over or underneath the surface of such lands * * * ”

There is no question that, whatever it may have been in its historical • origin, Section 523.010 now not only provides a procedure for but confers upon the public utilities therein named the substantive right of eminent domain. Phillips Pipe Line Co. v. Brandstetter, 241 Mo.App. 1138, 263 S. W.2d 880; Union Elec. Co. v. Jones, Mo., 356 S.W.2d 857; see also Shell Pipe Line Corp. v. Woolfolk, 331 Mo. 410, 53 S.W.2d 917.

In the Union Electric Company case the Supreme Court said (356 S.W.2d loe. cit. 859) that Chapter 523 “represents a consolidation of various grants of the power of eminent domain to companies organized for various purposes” and referred to various acts, including Laws of 1866, page 47. In reference to the powers granted electrical corporations it said (loe. cit. 860) :

“ * * * Insofar as Chapter 236 goes, there is no conflict; it just does not go as far as Chapter 523, and there is absolutely nothing to indicate that when the provisions of Chapter 523 were made applicable to electric companies, the Legislature intended to carve out of that specific grant of the power of eminent domain an exception constituting the limited grant of power in Chapter 236. The contentions of appellants that Union Electric does not have the power of eminent domain in the present factual situation is without merit.”

Returning to the paraphrase of Section 523.010, we interpret the first appearance of the words “laúd underneath the surface of the ground” as applicable only to pipe lines, and the words “underneath the surface” there used as those which identify and delineate the character and business of the corporation to which the power is delegated. But the words which appear later in this involved statute, to-wit, “over or underneath” the surface, are more general and they follow a series of named utilities to which the power is delegated. They would seem to be all-inclusive and applicable to all those companies which are specifically named in the preceding series. The section is, as we have said, an involved one which is rather haphazardly put together by reason of the various amendments. The Legislature could perhaps have made its meaning more clear had it inserted a simple comma in the two instances, between the words “gas line” and the words “over and underneath” the surface, but we do not deem the absence of this comma as vital as Poor Richard’s horseshoe nail. It would appear that had the Legislature intended to limit the subsurface to pipe lines and the above-surface to the other named utilities, it could, and would, have expressed such thought by saying “telephone line [and other named public utilities] over” and “pipe lines * * * underneath” the surface. In view of the interpretation placed upon Section 523.010 by the previous decisions, we feel impelled to hold that it is both general and specific in its terms and that it grants.the power to telephone companies to condemn portions of the sub-surface for the purpose of constructing and maintaining underground lines.

Is Section 523.010 in conflict with Section 392.100? The latter does not expressly forbid, or reserve from the grant, the right to appropriate for sub-surface facilities, but under strict construction it must be judged to some extent by w.hat is not said in relation to what is affirmatively expressed. The poles, piers, and abutments are objects which are normally considered to be above ground; but we notice that the identical words are used in Section 392.080, which provides that such structures may be maintained under public roads, streets, and waters. It is doubtful that the Legislature intended a different meaning to be applied to the same identical series of words in two related statutes of the same chapter. Furthermore, the erection of poles, and possibly of piers and abutments, contemplates some appropriation and use of the sub-surface; so apparently the idea of some sub-surface appropriation for use was not abhorrent to the Legislature.

A statute expressed in general terms will be given a prospective application so as to include things and conditions not existing at its passage if they come within logical and natural intent of the statute. State ex inf. Noblet ex rel. McDonald v. Moore, 347 Mo. 1170, 152 S.W. 2d 86, 87. And once the grant is made the public has the power to apply it not only to the uses which were then in vogue, but also to such new (and not inconsistent) uses as advanced civilization may suggest. The Julia Building Ass’n v. Bell Telephone Co., 88 Mo. 258, 269.

There is no positive rule which prohibits the repeal of a special act by a general one; but statutes relating to the same subject matter should be considered together and harmonized if possible so as to give meaning to all of the provisions of each. If Section 392.100 does not grant the right to appropriate the sub-surface, Section 523.010 supplements and broadens the power to include it. Construed in such manner, they are in harmony. Section 392.100 provides the original score and Section 523.010 provides a concordance which makes a total orchestration. The fact that the sub-surface use may impose a greater servitude than that imposed by one over the land is a matter going to the extent of the injury, and consequent just compensation to the owner, and not of exclusion.

The judgment is reversed and remanded with directions to reinstate plaintiff’s petition and proceed with the case.

STONE and HOGAN, JJ., concur.

      . 18 Am.Jur., Eminent Domain, § 9, p. 637; State ex rel. Coffman v. Crain, Mo. App., 308 SW.2d 451, 455; State ex rel. State Highway Commission v. Galloway, Mo.App., 292 S.W.2d 904, Mo., 300 S.W. 2d 480; Chicago B. & Q. R. Co. v. McCooey, 273 Mo. 29, 200 S.W. 59, 61.

      . Lewis, Eminent Domain (3rd Ed.), § 388, p. 708; State ex rel. Missouri Water Co. v. Bostian, 365 Mo. 228, 280 SW.2d 663, 666; City of Caruthersville v. Faris, 237 Mo.App. 605, 146 SW.2d 80, 86; Houck v. Little River Drainage Dist., 343 Mo. 28, 119 S.W.2d 826, 831.

      . 3 Sutherland, Statutory Construction (3rd Ed.) § 6504, p. 249 ; 29 C.J.S. Eminent Domain § 22, p. 806; State ex rel. Highway Commission v. Gordon, 327 Mo. 160, 36 S.W.2d 105, 106; see Priest v. Capitain, 236 Mo. 446, 139 S.W. 204, 209.

      . 3 Sutherland, Statutory Construction (3rd 33d.), § 6504, p. 256; Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920, 925; Willis v. American Nat’l Life Ins. Co., Mo.App., 287 S.W. 2d 98; Phillips Pipe Line Co. v. Brandstetter, 241 Mo.App. 1138, 263 S.W.2d 880.

      . Meyering v. Miller, 330 Mo. 885, 51 S.W. 2d 65(2) ; Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 126; McCord v. Missouri Crooked River Backwater L. Dist., Mo., 295 S.W.2d 42; In re Duren, 355 Mo. 1222, 200 S.W.2d 343(8), 170 A.L.R. 391.

      . Schott v. Continental Auto Ins. Underwriters, 326 Mo. 92, 31 S.W.2d 7, 11; Fleming v. Moore Brothers Realty Co., 363 Mo. 305, 251 S.W.23 8, 15.

      . 82 C.J.S. Statutes § 366, p. 801 et seq.; Crawford, Statutory Construction, § 227-231, pp. 420-435; State ex rel. Smithco Trans. Co. v. Public Serv. Comm., Mo., 316 S.W.2d 6(6); In re Dugan, Mo.App., 309 S.W.2d 137, 143; State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502, 526.


author: BROADDUS, Presiding Judge.

text:
    Goldwin E. MILLER and Theresa M. Miller, Respondents, v. NATIONAL UNION FIRE INSURANCE COMPANY, Appellant, Dr. John M. Spencer, Respondent.
    No. 24123.
    Kansas City Court of Appeals. Missouri.
    Dec. 7, 1964.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 1, 1965.
    Application to Transfer Denied March 8, 1965.

      Hale Houts, Joseph R. Hogsett, Dwight L. Larison, Houts, James, Hogsett & Mc-Canse, Kansas City, for appellant.
    Alvin D. Shapiro, Stinson, Mag, Thompson, McEvers & Fizzell, Kansas City, for respondents.
   BROADDUS, Presiding Judge.

Plaintiffs-Respondents, Goldwin E. and Theresa M. Miller, brought this suit against defendant-appellant, National Union Fire Insurance Company, and Dr. John M. Spencer and Florence W. Porter, for a declaratory judgment, alleging that a “justiciable controversy ripe for declaratory relief ex-, ists between the parties.”

The petition alleged that in November, 1959, plaintiffs entered into a contract for the sale of certain described real estate in Buchanan County to them by defendants Spencer and Porter; that in July of 1959' National had issued “to the plaintiffs and. to defendants Spencer and Porter” a fire insurance policy insuring said property in the amount of $10,000 for a term ending July, 1964; that plaintiffs were the equitable owners of said policy.

The petition alleged that in December, 1961, the premises were completely destroyed by fire and that plaintiffs had made a demand on National for $10,000, which National had refused; also that plaintiffs had demanded that defendant Spencer file suit against National for the benefit of plaintiffs, but that Spencer had refused to do so.

The petition prayed for a declaratory judgment determining the rights of the parties; that the court decree that plaintiffs were the equitable owners of the policy and National was indebted on said policy to plaintiffs and to defendants Spencer and Porter in the amount of $10,000, and penalties and attorney’s fees.

In subsequent proceedings it appeared without dispute that defendant Porter had transferred her interest in the property to defendant Spencer prior to the issuance of the insurance policy of defendant National; that she was not named as an insured in the policy; and by mutual acquiescence Mrs. Porter was not mentioned in the subsequent pleadings.

National denied by Its answer all the allegations of the petition except the allegations that there was a controversy ripe for declaratory relief; that Spencer contracted for the sale of the real estate to plaintiffs; that in July of 1959 National issued its policy insuring defendant Spencer against loss by fire; and that in December 1961, while the policy was in effect, the premises were completely destroyed by fire, and had a value in excess of $10,000.

National’s answer also alleged that plaintiffs at the time of the fire were insured by MFA fire insurance policy on the property in question, with a standard mortgage form clause insuring Spencer against loss not to exceed $8,000, as his interest might appear; that National’s policy contained the provision that in the event of loss National would not be liable for a greater proportion of Spencer’s loss than the amount insured under its policy bore to the whole insurance covering the property against the peril involved, whether collectible or not; that under said policy provision National’s liability to defendant Spencer was limited to 10,000/18,OOOths of any loss sustained by him as mortgagee; that the interest of defendant Spencer at the time of the fire did not exceed $7,537.50, which should be prorated according to the said policy provision; and that plaintiffs had no interest in the National policy and no cause of action against defendant National.

By separate answer, defendant Spencer denied all the allegations of plaintiffs petition except the allegations of paragraph 2 in respect to the contract of sale of the insured property to plaintiffs and paragraph 4 in respect to the destruction of the property by fire.

The subject fire insurance policy was purchased by respondent Spencer on July 9, 1959. The premium was originally paid by Spencer. On November 4, 1959, respondents Miller, as purchasers, and respondent Spencer, as vendor, entered into a Contract for Sale of Real Estate covering the insured property. Said contract for sale was a contract for deed, for it provided that the deed was to be deposited by Spencer with an escrow agent while payments were made by the Millers to said escrow agent. Under the contract, failure of the Millers to make timely payments worked a breach of the contract and Spencer was entitled to terminate the ■ contract and keep ■ all payments previously made as rental for the Millers’ use and possession of the premises. Only upon payment of the entire contract sum would the Millers be entitled to delivery of the deed by the escrow agent.

Pursuant to the provisions of said contract respondents Miller further paid Spencer $271.88, the prorated premium for the unexpired term of the policy. The insurance broker who sold the policy was informed of the contract by Spencer but said there was no need to change the policy “inasmuch as no deed was being delivered to the Millers.” On January 16, 1961, respondents Miller obtained $8,000 additional insurance on this property with MFA Mutual Insurance Company of Missouri, to which policy was attached a mortgage clause in favor of respondent Spencer.

On December 2, 1961, the premises were totally destroyed by fire. The value of the premises at said time, and the loss to respondents, was in excess of $18,000. MFA Mutual paid the entire amount of its policy to respondents Miller and Spencer. At said time, the balance due Spencer from the Millers under said contract for sale was $7,537.50. After due notice of said loss was filed by respondent Spencer, the sufficiency and timeliness of which are not here questioned by appellant, said appellant refused to pay the full $10,000 but has admitted owing on said policy the sum of only $4,187.50.

All three parties filed Motions for Summary Judgment in May, 1963. On August 16, 1963, the Circuit Court entered “Findings of Fact, Conclusions of Law and Judgment Entry” entering judgment in favor of respondents and against appellant in the amount of $10,000, plus $1,000 accrued interest. The court found and concluded that Spencer was at all times the full legal owner of the property; that the unearned premium for the policy sued upon was paid for by respondents Miller, pursuant to the provisions of the Contract for Sale; that the policy did not prohibit other insurance on the property; that the loss was total and exceeded the aggregate of the two policies; and that appellant was therefore liable in the full amount of the policy.. Appellant filed certain after-trial motions which were by the court overruled. This appeal followed.

Appellant contends that the court erred in entering the summary judgment against it because plaintiffs were not parties to the insurance policy in suit and “acquired no interest in the policy by this contract of purchase of the property insured, or by any other means”; that “plaintiffs were neither necessary nor proper parties to any claim against National.”

. In effect appellant states that respondents Miller, as vendees in the Contract for Sale of Real Estate, have no interest in the subject policy because they are not named therein. This same argument was made in McDowell v. Morath, 64 Mo.App. 290, where this court stated, page 298:

“If the mortgagee, under an arrangement with the mortgagor, insure the mortgaged property at the charge of the mortgagor, in such case, in the event of loss, the insurance money will be paid to the mortgagee, extinguishing pro tanto the debt of the mortgagor to the mortgagee. (Citing cases.) In such case, the mortgagor may maintain an action on the policy and to this end is entitled to sue in the name of the mortgagee. [Norwich Fire] Insurance Co. v. Boomer, 52 Ill. [442] 142.” (Emphasis supplied.)

That this is the well-settled law of Missouri was again recognized by this court in the recent case of Ingram v. Kiewit, Mo. App., 331 S.W.2d 681. In an opinion affirming the judgment of the lower court this court stated, p. 684:

“Count 11 of plaintiffs’ petition is based upon the premise that said insurance policy, although standing in the name of the Kiewits alone, was carried for the benefit of both the sellers and the buyers as their interest might appear, since the buyers were obligated by the contract for deed to maintain and pay for said insurance. The law of Missouri is well settled that where the mortgagee, under an agreement with the mortgagor, insures the mortgaged property at the charge of the mortgagor, the insurance proceeds, in the event of loss, must be applied by the mortgagee toward the extin-guishment of the debt or the restoration of the property, and the mortgagor eis entitled to have an account taken of the proceeds.’ (Citing many cases.)
“As defendants have intimated in their brief, we do not have a true mortgagor-mortgagee relationship here. However, the rule of law applicable in mortgagor-mortgagee cases has also been applied where the property is destroyed while the same is subject to a contract for deed or contract for sale as here * * *.” (Emphasis supplied.)

In view of this plain language how can appellant maintain that the Millers have no standing to bring this suit? Appellant does not — indeed, cannot- — dispute that the Millers, under the provisions of the Contract for Sale, paid the premium on the policy, as they were required to do. Its main argument seems to be that although they paid for the premium, they did not pay it directly to appellant or its agent, but rather to Spencer who had previously paid the insurer. This apparently is meant to imply that if the premium had been paid directly to the insurer, it would have had notice of the existence of the Contract for Sale.

But this argument is answered fully by the trial court’s finding that the respondent Spencer “held the. full legal title to the insured property against all the world * * * ” Thus, if Spencer was the full legal title owner from the date the policy was issued to the date of the fire, why should notice of the Contract of Sale create-an exception to the Millers’ undoubted right under the McDowell and Ingram cases to bring this suit? Both of those cases give this right to sue to the vendee if, under the Contract for Sale, the property is insured “at the charge” of the vendee. But clearly this requirement is not for the benefit of the insurer. It is to settle and define the rights as between vendor and vendee. If notice to the insurer was necessary, it should have been required by the policy.

If perhaps title had passed by the signing of the Contract for Sale, then notice of the same to insurer might somehow be pertinent. But title did not pass. The insurer’s risk was in no way increased, for title never passed.

Thus, the trial court’s undoubtedly correct finding that Spencer was at all times legal owner precludes any argument that notice to appellant of the Contract for Sale was in any way a bar to the Millers bringing this suit. There was no increase of the insurer’s risk, for title remained in the hands of the named insured. Indeed, the insurance broker who sold this policy even told Spencer at the time the contract for ■deed was signed that the policy need not be ■changed because “no deed was being delivered to the Millers.”

Nor does appellant cite any authority why this fact of indirect payment should carve out an exception to the clear rule of the McDowell and Ingram cases that the vendee under a contract for deed may maintain this suit. The case of Mahan v. Home Ins. Co., 205 Mo.App. 592, 226 S.W. 593, cited by appellant, does not bear on this point at all. It simply states the usual rule that an insurable interest is necessary to maintain a suit on a policy. In the Mahan case this court said there was nothing in the record to show plaintiff had an insurable interest. Here the record clearly shows, under the McDowell and Ingram cases that plaintiffs have such an insurable interest.

Having taken the full premium from Spencer, who was then repaid by the Millers, appellant should not be permitted to receive a windfall. By barring the Millers’ right to bring this suit, appellant would be receiving such a windfall. The policy did not require notice and, lacking such requirement, the terms of the policy should be construed most strongly against the insurer.

The rationale of the McDowell and Ingram cases rests squarely on the firm basis of fiduciary relationship. It cannot be doubted that Spencer owed a fiduciary duty to the Millers in regard to this policy. This is why this court has so firmly held that vendees who pay the premium have a right to an accounting of the policy proceeds, even to the extent of bringing suit on behalf of the vendor. It need hardly be demonstrated that the vendees have a dollar-for-dollar interest in this policy, for any amount less that the full $10,000 which is recovered comes directly out of the Millers’ pocket. Under the theory that a trust will never fail for want of a. trustee (see, e. g., Hall v. M. B. O’Reilly Realty & Investment Co., 306 Mo. 182, 267 S.W. 407; Canada v. Daniel, 175 Mo.App. 55, 157 S.W. 1032), this court has therefore held the vendee can maintain a suit such as this. To bar the vendee from doing so merely because it reimbursed the vendor who paid the insurer, rather than paying the insurer directly, would be unjust. The only reason appellant could possibly insist on direct payment would be so that it could have had notice of a change of title. But since title never changed and was in the named insured at all times, all reasons for the necessity of such notice disappear.

Under this court’s language in the McDowell and Ingram cases, it is clear that the Millers had the right to bring this suit.

Appellant next contends that “the contract of sale by defendant Spencer to plaintiffs of the premises insured reduced Spencer’s' interest in the National policy to that of a mortgagee for security for the unpaid purchase price owed by plaintiffs, prorated however, to the amount which the unpaid purchase price bore to Spencer’s combined mortgagee coverage under the National policy and the MFA policy taken out by plaintiffs, which is a sum not to exceed $4,187.50.”

When the loss is total and exceeds the aggregate of the two policies, there can be no prorating of either policy. As stated in Appleman on Insurance, Sec. 3905, p. 272:

“Under a valid prorating provision, the liability of the insurer is generally considered to be measured by the proportion that the amount of its policy bears to the total insurance on the property. Where the amount of the loss equals or exceeds the aggregate sum of all the insurance on the property, the insured is entitled to recover the total amount of the risks assumed by each insurer and there will be no apportionment.” In support of the text many cases are cited. (Emphasis supplied.)

Many of the cases disallow prorating where the loss is total because of the ■“valued policy” statute. In Missouri, our “valued policy” statute is 379.140 RSMo V.A.M.S. In Michigan Fire & Marine Ins. Co., v. Magee, 240 Mo.App. 767, 218 S.W.2d 151, the insurer contended before this court that although the loss was total and exceeded in value the aggregate of the policies, the insurer could nevertheless prorate on its policy and that the insured was entitled only to the extent of her dower interest in the destroyed property. This court rejected that contention, stating, page 155 :

“Our valued policy statute, Section 5930 (now 379.140) is designed to and does put at rest the measure of damages in a suit on a fire insurance policy in case of total loss of the property insured, and arbitrarily fixes the same at the ‘amount for which the (property) was insured,’ less depreciation.
“ * * * Therefore, when the whole of her interest so insured was destroyed by fire, she was entitled under the statute to the face of the policy, with interest, no depreciation being shown.”

Here, there is no question of depreciation, appellant having admitted that the insured house which was totally destroyed exceeded $18,000 in value, or greater than the aggregate of the two policies involved.

In Horine v. Royal Ins. Co., 199 Mo.App. 107, 201 S.W. 958, the court construed Sec. 7020 RSMo., 1929, a predecessor to the current Sec. 379.140. The court stated that the Supreme Court in Havens v. Germania Insurance Co., 123 Mo. 403 1. c. 417—418, 27 S.W. 718, 26 L.R.A. 107, had ruled that:

“(W)here several concurrent fire policies have been written on a building which is wholly destroyed, each company is liable for the full amount of its policy.” (Emphasis supplied.)

See, also, Smith v. Caledonian Insurance Co. of Scotland, 195 Mo.App. 379 l. c. 384; 191 S.W. 1034.

The cases cited by appellant are entirely irrelevant to the issue of prorating. Cases cited by appellant throughout its brief simply state the familiar rule that in order to prevent gambling contracts, an insured must have an insurable interest in the property insured. There is no authority in any of these cases for the novel proposition that the amount of recovery is limited to the balance of the insured’s interest.

There is no need to unduly prolong this opinion by a discussion of the other contentions advanced by appellant, as we do not deem them material to the proper disposition of this case.

The judgment was for the right parties and should be affirmed. It is so ordered. All concur.


author: ANDERSON, Judge.

text:
    CONSUMER’S MONEY ORDER CORP. OF AMERICA, INC. (MISSOURI), Plaintiff-Respondent, v. NEW HAMPSHIRE INSURANCE COMPANY, Defendant-Appellant.
    No. 31665.
    St. Louis Court of Appeals. Missouri.
    Dec. 15, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Jan. 11, 1965.
    Application to Transfer Denied March 8, 1965.

      Strubinger, Tudor, Tombrink & Wion, Edward P. Burke, Lawrence O. Willbrand, St. Louis, for defendant-appellant.
    Ackerman & Schiller, Paxton H. Acker-man, Theodore F. Schwartz, Clayton, for plaintiff-respondent.
   ANDERSON, Judge.

This is a suit on a policy of insurance issued by defendant, New Hampshire Insurance Company, insuring plaintiff among other things, against loss by robbery. The case was tried to a jury, and resulted in a verdict for plaintiff for the principal amount sued for with interest together with an attorney’s fee and penalty under the vexatious refusal to pay statute. From the judgment on this verdict, defendant has appealed.

The policy was issued on August 31, 1961, for the term of one year. It insured the plaintiff against loss of money, securities and other property by robbery or an attempt thereat, within two premises specified in the policy. There was also a provision whereby the defendant agreed, “To pay for loss of money, securities and other property by robbery or attempt thereat outside the premises while being conveyed by a messenger.” “Messenger” was defined as including any employee who was in the regular service of and duly authorized by the insured to have the care and custody of the insured property outside the premises.

The definition of robbery, so far as material to this case was defined as the taking of insured property by violence inflicted upon a messenger or a custodian, or by putting him in fear of violence.

There was an endorsement on the policy extending the coverage which was as follows:

“It is agreed that the Money and Securities Broad Form protection granted on the Schedule of Locations Endorsement No. 2 shall include property in unattended automobiles subject to the condition of Endorsement No. 1 Babaco Alarm Warranty.”

The Babaco Alarm Warranty provided for in Endorsement No. 1 was as follows:

“It is a condition of this insurance that all automobiles used by the messengers in the performance of their duties are fitted with a Babaco Alarm and that such alarms are maintained in good order during the entire period of this insurance and shall be set ‘on’ at all times.”

The plaintiff, Consumer’s Money Order Corp. of America, Inc., was engaged in the business of selling money orders through retail outlets. Harold Hausdorf was, at the time the events transpired which gave rise to this lawsuit, a regular employee of plaintiff. His duties were to collect money for plaintiff from various locations within the city of St. Louis. In the performance of his duties, Hausdorf used his own automobile. This automobile was equipped with a Babaco Alarm system, which plaintiff had installed. This system is so constructed that it could be turned on and off by inserting a key in a lock located on the outside of the trunk at the rear of the car. When the mechanism is turned to the “on” position a siren will sound whenever a door of the automobile is opened or if the hood of the car is lifted. Hausdorf testified that it was his practice to turn on the system whenever he got out of the car to make a collection. He further testified that if he opened the door to get into the car when the lock was turned to the “on” position, the siren would sound, and would continue until he would get out of the car and by the use of the key, turn the lock to the off position. In other words, under his testimony, if the system was turned on at all times he would he driving the car at all times with the siren sounding.

The loss for which plaintiff brought this suit occurred on January 6, 1962, when Hausdorf was making collections for plaintiff. Snow fell that day, and according to the testimony, the weather was miserable. The temperature was below freezing. At about 4:30 p. m., Hausdorf discovered that the lock of the alarm system was frozen and for that reason he could not insert the key into the lock to turn on the system. At that time, he was making a collection at a pharmacy located at Taylor and Easton. Hausdorf continued to make collections even though he knew the alarm system could not be turned on. He did not take his car to the Babaco service department as he normally would under such circumstances, because it was Saturday afternoon and such service was not available.

At about 6:00 p. m., Hausdorf arrived in front of a liquor store located at Glasgow and Montgomery. He parked his car in front of the store, got out and went into the store where he made a collection. He did not turn on the alarm system because the lock was frozen, and he could not insert the key into it. At that time there was about $18,000 in the car which he had collected for plaintiff from various locations within the city.

After Hausdorf made the collection at the liquor store he returned to his car, but was unable to start its motor. He then alighted and raised the hood of the car to ascertain the cause of the failure of the motor to start. While his head was under the hood, a man approached and inquired if he was having trouble. He raised up to a position where he was standing in front of the car. The man who accosted him was on the sidewalk. This man then displayed a gun and demanded money saying it was a holdup. Hausdorf gave him his personal funds thinking that would satisfy him, but the man demanded the rest of it which was in the inside pocket of his jacket, and which was money he had collected for plaintiff. Hausdorf complied with this demand. The holdup man told Hausdorf that he was being watched from across the street and for him not to move for fifteen minutes or he would be shot. The holdup man then fled. Hausdorf gave chase firing three shots, but the robber got away. Hausdorf then returned to his car after shouting to owner of the liquor store to call the police. The police arrived shortly thereafter and Hausdorf reported to them what had happened. The robber took none of the money that was in the automobile. The money taken from Hausdorf amounted to $2,318.76. Appellant concedes that this was the correct amount of the loss.

Hausdorf further testified that he later made an investigation to ascertain why his car would not start, and found there was a missing coil that was responsible.

Appellant’s first point is that the court erred in overruling defendant’s motion for a directed verdict, for the reason that plaintiff’s own evidence shows a failure by plaintiff to comply with the Babaco Alarm Warranty, which failure suspended the insurance for the period of noncompliance during which time the robbery occurred.

Respondent contends that a proper interpretation of the policy contract is that the terms of the Alarm Warranty were not to apply to robberies outside the car.

It is further contended that the warranty in question must be read in connection with the endorsement affording coverage of plaintiff’s property in unattended automobiles, and when so construed means that the alarm system must be on when the automobile is unattended; that “on at all times” means at all times where there is insurance coverage.

In this case the policy afforded coverage at two locations, namely, at 1322 North Market Street in St. Louis, with a limit of liability of $30,000, and at the V. F. W. Bldg, in Kansas City for $10,000. It also covered robberies of four messengers from the St. Louis address for $20,000, and two messengers at plaintiff’s Kansas City address for $10,000. By the endorsement heretofore mentioned coverage was extended to property in unattended automobiles, subject to the conditions of the Babaco Warranty which required the alarm to be maintained in good order and be set “on” at all times.

It is a general rule of law that a policy of insurance purporting to be entire may be divisible and severable, where it covers several different kinds of risks or property at different locations. The question rests upon the intention of the parties, which intent must be deducible from the stipulations in the contract and the application of the rules governing the ascertainment of that intent. If the character of the risks assumed is such that what affects the risk on one item does not affect the risk on the others the parties must have intended that the policy should be regarded as severable and divisible, and any warranty the breach of which could only affect one item will be deemed directed to that item and not to the policy as a whole. 44 C.J.S. Insurance § 336, p. 1284; Trabue v. Dwelling House Ins. Co., 121 Mo. 75, 25 S.W. 848, 23 L.R.A. 719; Loehner v. Home Mut. Ins. Co., 17 Mo. 247; Koontz v. Hannibal Sav. and Ins. Co., 42 Mo. 126; Hesselberg v. Aetna Life Ins. Co., 8 Cir., 102 F.2d 23.

When we apply the above mentioned doctrine to the case at bar it is clear that the court did not err in refusing to direct a verdict for defendant The Babaco Warranty related only to loss by robbery from unattended automobiles. The evidence shows there was no money taken from the automobile in question.

But appellant argues that had the alarm been in good order and set at “on” the alarm would have sounded when the hood was lifted and the coil taken, hence the likelihood of a successful holdup of the messenger would have been materially reduced. The answer to this is obvious. The fancied relation between the alleged breach of warranty and the loss rests on speculation and conjecture. Furthermore, it did not result in loss from the automobile.

Appellant’s next point is directed at instruction No. 6, given at plaintiff’s request. It charged the jury with reference to the proper rules to be applied in construing the terms of the contract. This was error, but' was harmless under the circumstances, since in no event did a breach of the warranty constitute a defense under the facts developed by the evidence.

Appellant next complains that the court erred in submitting to the jury the issue of vexatious refusal to pay. Section 375.420 RSMo 1959, V.A.M.S., which authorizes such penalties has been held to be highly penal, and should be strictly construed. The penalties should not he assessed unless the facts show that the company’s refusal to pay was willful and without reasonable cause, as the facts would appear to a reasonable person before trial. If there is an open question of law, or if under the facts as they appear before trial, the company has reasonable grounds to believe it has a meritorious defense, it should not be penalized under this statute. Scott v. Missouri Insurance Co., Mo.App., 246 S.W.2d 349.

We find no evidence of bad faith on the part of the defendant. We also believe that a person presented with the facts of this case could reasonably believe there was a valid defense to the action. For that reason, we hold that the court erred in submitting to the jury the issue of vexatious refusal to pay the claim.

If within 30 days, the plaintiff will remit the sum of $231.87 from the judgment, the amount allowed by the jury as a penalty under Section 375.420, supra, the judgment will be affirmed in the sum of $2,-492.66, the amount found due under the policy plus interest; otherwise the judgment will be reversed and the cause remanded for new trial.

WOLFE, Acting P. J., and R. K. ELLIOTT, Special Judge, concur.


author: SPERRY, Commissioner.

text:
    Bessie Myrick McCLUNG, Plaintiff-Respondent, v. Vallie Marie WHITE and Bob Dee Casebolt, Defendants-Appellants.
    No. 23867.
    Kansas City Court of Appeals. Missouri.
    Nov. 25, 1964.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 1, 1965.
    Application to Transfer Denied March 8, 1965.
    Brown, Douglas & Brown, R. A. Brown, St. Joseph, for appellants.
    Edward L. Simmons, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff, Mrs. McClung, sued defendants, Mrs. White and Mr. Casebolt, for damages growing out of a collision between two automobiles owned and operated by the respective defendants. From a judgment in favor of plaintiff and against both defendants in the sum of $6,000.00, Mrs. White appeals. We will refer to her as defendant.

The collision occurred on December 2nd, 1960, at 4:00 P.M. Visibility was good. The Casebolt car was travelling west on Highway 36, at a speed of from fifty to sixty miles per hour. Plaintiff and another lady were passengers in the automobile of defendant White. They were travelling east on Highway 36. The Casebolt vehicle side swiped the White car at a point west of the west end of Third Fork Bridge, some miles east of St. Joseph, Missouri. The speed of the White vehicle was from forty-five to fifty miles per hour.

Highway 36 is hard surfaced, twenty-two feet wide, with a line along the center. The shoulders are sodded and smooth. The south shoulder is six feet wide along-side the area involved, and was dry. Defendant’s automobile was five feet ten inches wide and a few inches more than sixteen feet in length. Both cars were in good mechanical condition. The bridge is one hundred twenty-four feet long and twenty-two feet wide. The roadway is straight and level for a distance of several hundred feet both east and west of the bridge. Debris from the collision, consisting of glass, (the left headlight of the Casebolt car was broken) was centered at a point one hundred thirty-five feet west of the west end of the bridge. The actual collision damage to the White car was on its left side, commencing on the left door and extending to the rear some distance — somewhat of a scrape or scratch. There was no damage to the front end of the car except that caused by its eventual collision with the south abutment of the bridge, after having been struck by the Casebolt car. The damage to the Casebolt car was confined to its left side. The above facts are undisputed in the evidence.

Defendant contends that no submissible case was made, and that the verdict is against the weight of the credible evidence. We must consider the evidence in the light most favorable to plaintiff, treat as true the plaintiff’s testimony and give her the benefit of all favorable inferences from all of the evidence, and we must disregard all of defendant’s testimony conflicting with that of plaintiff. Morris v. Alexander, Mo.App., 275 S.W.2d 373, 375-376.

The transcript consists of five hundred pages. It includes the testimony of several witnesses, given at this trial, interrogatories, and depositions of some of these same witnesses taken in this case and in the trial of another case growing out of this collision. There are some inconsistencies in the testimony of some witnesses, and some wide variances in estimates of distances involved. However, the evidence as a whole was for the jury to evaluate. The jury could believe what it considered to be the credible testimony and reject that which it considered incredible or false. We find no such contradictions as would result in destroying the probity of plaintiff’s evidence. It is our duty to determine whether or not there is substantial evidence in the record upon which the jury could have based its verdict and, if there is, we must affirm the judgment.

Defendant testified by deposition and in court to the effect that, when she first saw the Casebolt car, it was about ready to come onto the east end of the bridge and that it about two hundred yards distant. She stated it crossed over the center line, to the south lane at that time and continued on that course. She also stated that it was, at that time, about one hundred feet east of the bridge. She stated that, at the time she first saw the car, she was proceeding at a speed of from forty-five to fifty miles per hour; that she did not increase or decrease speed, nor did she swerve from her course. There was evidence to the effect that the left side of defendant’s car was about one foot south of the center line of the pavement; that the Casebolt car was weaving before it reached the bridge; that it came across to the south of the center line of the road and continued there from that time until the collision occurred, with its left wheels about ten inches south of the center line; that, when it first crossed the line, defendant said: “what is that darn fool trying to do ?”; that, at that time, the Casebolt car was from two hundred to two hundred fifty feet east of the bridge; and that defendant was three hundred feet west of the bridge. The debris was centered at a point one hundred thirty-five feet west of the bridge and Mr. Casebolt stated that the point of impact was one hundred feet west of the bridge. In short, there was substantial evidence from which the jury could have found that defendant saw the Casebolt car cross into her lane of travel at a point more than six hundred feet east of her car, and that she observed it as it continued travelling toward her, with its left wheels ten inches across the line, for a distance of two hundred fifty feet before the cars collided. The physical facts are that, to defendant’s right was four feet of smooth pavement plus six feet of smooth dry shoulder. The evidence was that defendant’s reaction time was average. The jury could have believed, from the evidence, that defendant continued driving straight down the road, with full knowledge that a collision would occur if both cars continued their respective courses, and that she had sufficient time and room to swerve a foot to the right, with safety to herself, her passengers, and her automobile, thereby avoiding a collision.

Plaintiff submitted on defendant’s primary negligence in failing to swerve her car. Under the evidence most favorable to plaintiff a submissible case was made on this theory. Morris v. Alexander, supra, 275 S.W.2d 376-377. Defendant, in her brief, cites some humanitarian cases. The case at bar is based on primary negligence. Morris v. Alexander, supra. In Yarrington v. Lininger, Mo., 327 S.W.2d 104, the court discussed humanitarian and primary negligence, and held that no submissible case was made on the humanitarian theory as to one of the defendants. The court held, however, (327 S.W.2d 1. c. 111) that a sub-missible case on primary negligence was made under the evidence. The facts are somewhat analogous to the facts in evidence in this case.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.