author: COLLINGS, Justice.

text:
    Ed EISEMANN, Appellant, v. Ike EMMONS et ux., Appellees.
    No. 4018.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 17, 1965.
    Rehearing Denied Feb. 25, 1966.

      Peter S. Navarro, Jr., Houston, for appellant.
    Cattanach, Capps, Turner, Coe, Reardon, Chaney & Thorne, Glenn Chaney and Robert A. Cattanach, Houston, for appellees.
   COLLINGS, Justice.

Ike Emmons and wife Opal Emmons brought suit against Ed Eisemann and George Asaf for the conversion of certain equipment alleged to be the personal property of plaintiffs located at the Alibi Bar in Houston. The case was tried before a jury which found that the defendant Asaf did not convert the property in question, but that Eisemann did convert such property and equipment, and that the market value of the equipment at the time of the conversion was $2500.00. Based upon the verdict, judgment was rendered against Eisemann for $2500.00. An additional sum of $536.55 as interest from the time of the conversion to the date of the trial was awarded plaintiffs. Eisemann has appealed.

Appellant Eisemann urges points contending, in effect, that the court erred in not granting his motion for new trial, (1) because the verdict upon which the judgment is predicated was not supported by the evidence, (2) because the verdict and the judgment awarding appellees damages in the sum of $2500.00 was not supported by the evidence, was against the great weight and preponderance of the evidence, and was grossly excessive and manifestly unreasonable, (3) that the court erred in awarding appellees judgment for interest from the date of the alleged conversion to the time of the trial because appellant contends the question of appellees’ right to such interest involves a fact question for the jury and not one to be determined by the court after a jury trial in which no finding was made thereon.

Appellees urge that appellant’s first point of error is too broad and general for consideration; that it was not specifically set out in appellant’s motion for a new trial and cannot be raised for the first time on an appeal and that it must therefore be considered as waived. Regardless of the correctness of appellees’ contention in this respect appellant’s first point is not well taken because the finding of the jury to the effect that appellant converted the property in question is supported by the evidence, and such finding is not against the great weight and preponderance of the evidence. The evidence shows that the Emmons purchased the equipment together with the Alibi Bar iron George Asaf; that the equipment and such bar were located in a building in Houston, the leasing of which was controlled by appellant Eisemann; that on or about October 1, 1961, when the bar was closed because of the illness of Emmons, Eisemann changed the locks on the bar doors thereby preventing the Em-mons from removing their equipment and depriving them of the possession and control thereof; that thereafter Eisemann leased the building together with appellees’ equipment to George Asaf who thereupon began the operation of the bar and the use of such equipment. This evidence supports the conclusion that appellant made an unauthorized disposition of appellees’ equipment “with the intention of transferring a proprietary interest therein” to another. Such action by appellant constituted a conversion of the equipment. Lang v. Harwood, Tex.Civ.App., 145 S.W.2d 945; Wutke v. Yolton, Tex.Civ.App., 71 S.W.2d 549. The evidence further shows that appellees demanded the return of their property which was refused. The evidence supports the finding that Eisemann converted appellees’ equipment and such finding is not against the great weight and preponderance of the evidence. Appellant’s first point is overruled.

Appellant’s second point urges, in effect, that the finding of the jury that the value of appellees’ equipment at the time of the alleged conversion by appellant was $2500.00 was not supported by the evidence but was grossly excessive and against the great weight and preponderance of the evidence. This point is also overruled. There was a conflict in the evidence concerning the value of appellees’ equipment at the time of the conversion. Appellee, Ike Emmons, testified that the value of the equipment at that time was •$5,000.00; that he had paid Asaf that amount for the equipment and the bar a few months prior to the conversion, and that the condition of the property at the time of the conversion was the same as when it was purchased from Asaf. George Asaf testified that the value of such equipment was “Five hundred to a thousand”. The jury found that the value was $2500.00. Generally, where there is a conflict in the evidence concerning the value of property, the finding of the jury should not be disturbed. Page v. Layne-Texas Co., Tex.Civ.App., 258 S.W.2d 366, (Dism.Agr.). The finding of the jury concerning the value •of the equipment was, in our opinion, amply supported by the evidence and was not grossly excessive. The question of the great weight and preponderance of the evidence in regard to the value of the equipment as urged in appellant’s brief was not set out in appellant’s motion for new trial and appellees contend should not be considered. In any event the point is not well taken. The evidence does show that appellees’ purchase of the equipment from Asaf for $5,000.00 included the Alibi Bar and the good will of such business establishment. However, a consideration of the record as a whole shows that the finding of the jury concerning the value of the ■equipment at the time of the conversion is not against the great weight and preponderance of the evidence.

Appellant’s third point complaining ■of the action of the court in awarding ap-pellees judgment for interest from the date of the conversion to the time of the trial is likewise not well taken. It is true, as contended by appellant, that there was no jury finding concerning interest. The controlling question, however, is whether it is within the trial court’s province to award interest from the time of the conversion of property to the date of the trial as part of the damages. The rule in such cases is that where a plaintiff has established the right to recover damages for conversion of property he is entitled to legal interest as a part of his damages, if pleaded. Appellees’ prayer for damages included a plea for legal interest from the conversion to the time of the trial. 14 Tex.Jur.2d page 35; Texas Power Corp. v. Kuehler, (Tex.Com.App.) 52 S.W.2d 76; 17 Tex.Jur.2d 105; 96 A.L.R. 18, 36 A.L.R.2d 337. Appellant’s third point is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: MASSEY, Chief Justice.

license: Public Domain

text:
    MISSOURI PACIFIC TRUCK LINES, INC., Appellant, v. BROWN EXPRESS, INC., et al., Appellees.
    No. 16697.
    Court of Civil Appeals of Texas. Port Worth.
    Jan. 21, 1966.
    Rehearing Denied Feb. 25, 1966.

      Brown, Herman, Scott, Young & Dean, Fort Worth, Tom L. Farmer, Dallas, for appellant.
    James, Robinson & Starnes, and Mert Starnes, Austin, for appellee Brown Express, Inc.
    Rawlings, Sayers, Scurlock & Eidson, and Reagan Sayers, Fort Worth, Texas, for appellees Merchants Fast Motor Lines, Inc., and Red Arrow Freight Lines, Inc.
   MASSEY, Chief Justice.

Brown Express, Inc., and other motor common carriers operating under the jurisdiction of the Railroad Commission of Texas by virtue of Certificates of Public Convenience and Necessity issued by said Commission brought suit as interested and affected competitors against Missouri Pacific Truck Lines, Inc., another motor carrier likewise operating upon the public highways of the State of Texas, under the terms of the Uniform Declaratory Judgments Act (Vernon’s Ann.Tex.Civ.St. Art. 2524 — 1). They sought a construction of a certain Certificate of Public Convenience and Necessity issued to the defendant carrier, and in primary particular to declare the effectiveness of a certain restriction therein set forth. In addition and by invoking the court’s equity authority, a writ of injunction was sought under a. theory that the provisions of V.A.P.C. Art. 1690b, “Motor carriers, violation of orders, penalties”, were being violated by the defendant, to the prejudice of plaintiffs, in that the defendant was engaging in certain transportation over state highways without authorization therefor under the requisite Certificate of Public Convenience and Necessity.

The judgment entered was in accord with the contentions of the plaintiffs in so far as it amounted to a declaratory judgment, and, in view of the findings and declarations thereof, the court furthermore permanently enjoined the defendant from “conducting or offering to conduct any character of operations as a common carrier motor carrier in intrastate commerce transporting intrastate freight originating at Waco or points south of Waco 'and destined to Fort Worth, or transporting intrastate freight originating at Fort Worth and destined to Waco or points south of Waco under and by virtue of Certificate of Public Convenience and Necessity 3527, until such time as Missouri Pacific Truck Lines, Inc. acquires one or more additional certificates from the Railroad Commission of Texas authorizing it to do so, or until the said restriction in * * * 3527 is lawfully eliminated therefrom by a final and effective order of the Railroad Commission of Texas.”

The restriction in Certificate of Public Convenience and Necessity 3527, to which reference was made in the order of injunction, from which we have quoted in the foregoing paragraph, recited: “THIS AUTHORITY does not authorize the transportation of freight originating in Fort Worth and destined to Waco or points south of Waco, nor does it authorize the transportation of freight originating at Waco or points south of Waco and destined to Fort Worth.” (Emphasis supplied.)

The judgment of the trial court was full and complete, the most important finding and conclusion in which we believe to be embodied in the following language: “The last issuance of Certificate No. 3527 grants the defendant the right to operate over the routes designated therein, and to coordinate this authority with operations conducted by defendant under other certificates. However, other language of the Certificate excludes therefrom the authority to transport traffic to or from the points designated in the above described restriction. The defendant cannot by coordinating the authority granted in Certificate No. 3527 with other authority held by it defeat the express terms of the restriction.” At another point the court found that the evidence supported the conclusion that the defendant had no other certificates authorizing intrastate operation between the points to which the restriction in the certificate had reference.

To lengthen this opinion in an analysis of the applications, procedures, and quasi-adjudications which took place before and by the Railroad Commission of Texas is not warranted. We are in complete accord with the conclusions of the trial court as to the meaning and effect of the same, and with its judgment that the restriction above quoted limited and inhibited the grant of authority to which it refers and of which it was a part.

That there existed jurisdiction to issue the declaratory judgment and to issue the injunction to enforce the same is not challenged. Sunset Express v. Gulf, C. & S. F. Ry. Co., 154 S.W.2d 860 (Fort Worth Civ. App., 1941, writ ref. w. o. m.); Alamo Express, Inc. v. Brown Express, 234 S.W.2d 62 (El Paso Civ.App., 1950, writ ref. n. r. e.). Plaintiffs’ right to bring their suit is likewise unchallenged.

It is contended that the proof introduced under plaintiffs’ theory of their right to injunctive relief was not supported by pleading and that the form of relief granted lacked support of pleading and evidence. Our view of the record has brought us to a contrary conclusion. The contentions made are overruled as being without merit.

On the issue of whether plaintiffs have discharged the burden, applicable to relief by way of injunction, of showing irreparable injury should such relief be denied them it is sufficient to note that injury to their business would be a necessary consequence of unlawful competition by the defendant, and that such injury is of necessity one which could not be ascertained with certainty. Their burden was discharged. Railroad Commission of Texas v. Red Arrow Freight Lines, 96 S.W.2d 735 (Austin Civ.App., 1936, error refused).

All points of error are severally overruled.

Judgment is affirmed.


author: RUDDY, Presiding Judge.

text:
    Julia M. QUINN, (Plaintiff) Respondent, v. Henry E. ROSENBERG, (Defendant) Appellant.
    No. 31548.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.
    Rehearing Denied Feb. 18, 1966.

      William R. Kirby, St. Louis, for appellant.
    Orville Richardson, Corinne Richardson, Hullverson, Richardson & Hullverson, St. Louis, for respondent.
   RUDDY, Presiding Judge.

This action by plaintiff against defendant is in two counts. Count 1 alleges an assault and battery and Count 2 alleges a false arrest. A jury trial resulted in a verdict for the plaintiff on Count 1 in the amount of $500.00 actual and $1000.00 punitive damages and on Count 2 in the amount of $10,000 actual and $500 punitive damages. Defendant appeals asserting error in failing to sustain his motion for a directed verdict, error in three instructions and further contends that the amount of the verdict is excessive.

In determining whether the trial court erred in failing to sustain the defendant’s motion for a directed verdict on both counts of the petition we will state the facts and circumstances favorable to plaintiff as shown by the evidence and give to plaintiff the benefit of all reasonable inferences which may be fairly drawn therefrom. Price v. Nicholson, Mo., 340 S.W.2d 1, 4, 5; Johnson v. Missouri-Kansas-Texas Railroad Company, Mo., 334 S.W.2d 41, 42.

Plaintiff, licensed to practice law in 1939, is married to William Quinn, also a lawyer. At the time of her testimony she was associated with her husband in the practice of the law under the firm name of Quinn and Quinn. Plaintiff did not engage in the active practice of the law until about two years prior to her testimony. However, prior to the two years she did help her husband in his law office, doing research and bookkeeping.

On August 20, 1958, she was in an automobile accident in Garden City, Kansas, in which accident she sustained injuries to her neck, shoulder and arms and the upper part of her body. Most of the injuries she sustained were to her right side. She also sustained a laceration of the head. She was hospitalized in Kansas and subsequently returned to St. Louis where she entered the Firmin Desloge Hospital for treatment of her injuries. Dr. William Stevens was the attending physician. He prescribed a cervical collar and a traction outfit for her to use in her home. On February 19, 1959, the time of the occurrence that forms the basis of this lawsuit, she was still taking traction treatments at her home and wore the cervical collar, except that on some occasions she did not wear it because it proved embarrassing and she would take it off. In 1940 her neck was injured in an accident in which the car in which she was riding was struck in the rear by another car. In addition to wearing the cervical collar and using the traction outfit, Dr. Stevens was also giving her some diathermy treatments in his office and she had a diathermy machine at home, which she used. Prior to the arrest involved in this suit, she was never arrested for any violation of the law.

Prior to February 19, 1959, plaintiff’s husband was engaged to represent Aletha Joyce Davis in the prosecution of a Workmen’s Compensation claim for an injury to the left knee, which Mrs. Davis claims she had sustained in May 1956 during her work with the Bemis Brothers Bag Company. Her claim for compensation was disputed by the employer and insurer. Mrs. Davis had been in the Park Lane Hospital under the care of defendant, Dr. Rosenberg, in July 1956 for a female condition, at which time she also complained of pain and ache in the left knee and leg. Because of the medical question involved in the case, plaintiff’s husband asked plaintiff to go to the hospital and to the office of Dr. Henry Rosenberg to get copies of the record of medical service and treatment furnished to Mrs. Davis. Prior to going to the hospital and to the office of the defendant, plaintiff secured, from the Division of Workmen’s Compensation, authorizations to inspect the records of the Park Lane Hospital and the records of defendant, Dr. Rosenberg. These authorizations were issued by the Division of Workmen’s Compensation under the provisions of § 287.140 (sub-divisions 5 and 6) RSMo 1959, V.A.M.S., which provide:

“5. The testimony of any physician who treated the employee shall be admissible in evidence in any proceedings for compensation under this chapter, subject to all of the provisions of section 287.210.
“6. Every hospital or other person furnishing the employee with medical aid shall permit its record to be copied by and shall furnish full information to the commission, the employer, the employee or his dependents and any other party to any proceedings for compensation under this chapter, and certified copies of such records shall be admissible in evidence in any such proceedings.”

On February 19, 1959, plaintiff went to the Park Lane Hospital and arrived there about 12 noon. She had taken a portable photostat machine with her. She presented her authorization to Mary Knoplauch, the medical record librarian, and asked to see the medical records of Mrs. Davis. Mrs. Knoplauch refused permission to see the records but made a telephone call to defendant, Dr. Rosenberg, because it was the policy of the hospital not to show the hospital records to anyone until they had procured the patient’s permission and the doctor’s permission. The defendant told Mary Knoplauch to have the plaintiff come to his office and that he would talk to her there. Mary Knoplauch admitted that plaintiff presented an authorization from the Division of Workmen’s Compensation but that she did not have the patient’s signature, nor the doctor’s signature to inspect the records. Immediately thereafter, plaintiff went to the office of defendant at 1467 North Union Boulevard. The office of the doctor is in a residence converted to office use and the doctor occupies the entire residence. The office has a waiting room, an archway into the nurse’s or receptionist’s office and another archway leading into a corridor. This corridor leads to a number of rooms used by the defendant in his treatment of patients.

The defendant employed Ozella Green who served in a number of capacities. She was the receptionist and it was her duty to see that each patient would sign a register when he or She arrived at the defendant’s office. She took care of the defendant’s files, kept his books, sterilized his instruments and prepared the patients for the defendant’s treatment and services. When the defendant was ready for the patient she would take the patient to a treatment room.

Plaintiff arrived at defendant’s office about 12:30 P.M. After entering the waiting room she proceeded to the desk in the nurse’s office and presented both authorizations to the nurse and told the nurse that defendant knew that she was coming and asked the nurse to tell the defendant that she was there. There were several people in the waiting room and the nurse told plaintiff to be seated in the waiting room, that the doctor was busy. Thereafter, the nurse took the authorizations into the back quarters of the building. About an hour later, and while plaintiff waited in the waiting room, she saw defendant come into the nurse’s room and look at the authorizations to inspect the medical records, which were lying on the nurse’s desk. Defendant said something to the nurse and the nurse then looked at plaintiff and thereafter the doctor went back into the rear quarters of his office. Later, the defendant again came out to the nurse’s desk at which time Mrs. Quinn nodded a recognition to him but the doctor said nothing to her. He went back into the rear portion of his office again. About 2:30 P.M. plaintiff left defendant’s office and telephoned her husband and Vernon Meyer, who was then the Referee in charge of the Workmen’s Compensation office in St. Louis, Missouri, and who is now Honorable Vernon Meyer, one of the Judges of the Twenty Second Judicial Circuit of Missouri. Plaintiff advised Judge Meyer that she was unable to inspect the records in the doctor’s office and thereafter Judge Meyer called defendant’s office. Judge Meyer did not talk to Dr. Rosenberg but spoke to the girl who answered the phone and told her that if Dr. Rosenberg had treated someone who had an industrial injury that plaintiff, on behalf of the employee, was entitled to inspect his medical records upon the showing of the authorization from his department.

After calling Judge Meyer, plaintiff returned to the defendant’s office and again asked the nurse, Ozella Green, if she could see the doctor. The nurse told her that she could not, that the doctor was still busy and was told to be seated. After waiting about another hour, defendant’s nurse gave plaintiff the authorizations she had given to the nurse. About 3:30 P.M. plaintiff again asked the nurse about seeing the doctor. The office had become empty except for one gentleman who plaintiff saw come in through the archway and who she thought was an employee of the defendant. He was standing behind the nurse’s desk and was talking to the nurse. She later learned he was Moses Bradford. In answer to plaintiff’s last request, the nurse told plaintiff she could see the doctor. Plaintiff left her photostat machine behind the nurse’s desk and turned to go into the archway and asked the nurse, “Well, which way should I go?” and the nurse answered, “that way,” pointing to the left. Plaintiff entered the corridor that led to the treatment rooms and the doors of the rooms were all closed. At this time plaintiff had both authorizations with her. Not knowing which office the defendant was in, she called out, “Dr. Rosenberg, Dr. Rosenberg.” She did not know which office he was in and called out loud enough so that she thought she could be heard by him. When plaintiff was asked what happened, she answered:

“Well, about that time someone came up behind me and grabbed ahold of my left arm and swung me kind of around to the side, and I said, ‘Are you Dr. Rosenberg?’ And he said, ‘You get out of here, you get out of here, you haven’t got any business in here.’ And I said, ‘Well, just a minute, just a minute, let me explain, please.’ And he didn’t give me time to explain. The first thing I know he had my arm up behind my back. * * * My left one, and I couldn’t have gotten out of the place if I wanted to, he was blocking my way, standing to the side of me. So he got me behind the back here and he held on to me and I said, ‘Oh, don’t hurt my neck, please, please, just leave me go.’ And I said, T have been in an automobile accident, you are hurting me.’ And I said, T am still under the treatment of a doctor.’ He said, ‘Treatment, I’ll give you a treatment, you’ll remember the treatment I’ll give you,’ and then I was on my way out.”

Defendant did not ask plaintiff to leave before he grabbed her. He just told her, “to get out of there, get out of there.” While he had a hold of her, he pushed her through the archway out into the nurse’s room. He then pushed her through the nurse’s room and all during that time she was trying to get away from him. He pushed her across the waiting room lobby and pushed her into a chair against the wall. As he did so he said, “If you were a man I’d bust you right in your nose, in your mouth.” Defendant was holding plaintiff during the “entire time” and had a hold of her neck. He would not let plaintiff tell him why she was there and what she was doing there. He was furious. She felt terrible and was really upset. Plaintiff was not kicking, stomping, biting or screaming. She said she just wanted to get away from the defendant. Thereafter, defendant told his nurse to call the police, but she refused and told defendant to call them. Defendant then called the police and asked them to come over to the office. Thereafter, he left the waiting room and went into the back portion of his office. Plaintiff remained seated in the waiting room. Before calling the police, the defendant would run to the nurse and then run back over to the plaintiff and stand over the plaintiff and plaintiff said she was afraid to even look up. Plaintiff did not think she could leave because the police were coming and she thought it was her duty to remain there. She said, “The main reason was I didn’t want it to appear that I was fleeing from the police.”

Officers Mead and Smith responded to defendant’s call for the police. Upon arrival they found the plaintiff sitting in the waiting room. Upon ascertaining that defendant, Dr. Rosenberg, had made the telephone call, they went back into an examining room in the rear of the office and asked the defendant what seemed to be the trouble and he said he had a woman in his office that he “wished to leave” and told the police to “get that woman out of my office.” The officers then went with the defendant to the waiting room and plaintiff showed the officers the authorization to see the records in the defendant’s files and defendant told the police that he did not care to show them to the plaintiff. Defendant requested that plaintiff leave but she would not leave the doctor’s office. However, the police officers said they detained plaintiff in order to determine the nature of the trouble. Thereafter, defendant asked the police officers to arrest the plaintiff on the charge of individual peace disturbance. The officers then informed plaintiff that she was being arrested for individual peace disturbance and thereupon plaintiff requested the police to arrest Dr. Rosenberg for individual peace disturbance and both were arrested by the officers. A patrol wagon came at the request of the officers.

Plaintiff said her experience at defendant’s office was embarrassing and humiliating. Plaintiff was nervous and upset at the time and asked the police if they would take her to the City Hospital. She was conveyed to the City Hospital by the police who were in charge of the patrol wagon. She described the patrol wagon as a closed van which had doors in the rear and she believed it could be locked. The police went with plaintiff into the City Hospital and plaintiff entered the emergency room where she was examined. The hospital record introduced into evidence showed that plaintiff was admitted at 5 P.M., gave her occupation as a process server; that she was brought in a patrol wagon and left in the receiving room by the police. The history in the record showed that she had been in an automobile accident a year before; tenderness over the neck and right shoulder; weakness of right hand; X-rays taken and some loss of the normal cervical lordotic curve. She was at the City Hospital about two hours and the police sat beside her all of the time she was in the emergency room. She was in the custody of the police during all of the time she was in attendance at the City Hospital. Her husband arrived while she was at the hospital. After leaving the hospital she was conveyed to the Twelfth District Police Station (which was about two and one-half blocks from defendant’s office) in the patrol wagon. Her husband was not permitted to ride with her and he went to the station by other means and met her there. At the police station certain information was asked of her and recorded on the police records and she was booked and her husband arranged for her to be released on bond. She was in the custody of the police approximately four hours. The case against her of individual peace disturbance was never prosecuted by the defendant and the charge was dropped and dismissed. Several days after the incident in defendant’s office, plaintiff had “black and blue places” on her left arm. She said her shoulder and neck had been injured. The booking at the police department consisted of the filling out of a formal form which is referred to, variously, as the blotter, booking or register. This record of the arrest made at the district station is forwarded to the Central Police Headquarters where it is kept in the record room. At the Central Police Headquarters it constitutes a part of the permanent records of the police department. The rules and regulations of the police department concerning the accessibility of records of arrested persons to anyone making inquiry, permits certain persons to purchase these records. The persons described were attorneys, persons involved in the case, investigators for an insurance company, an institution that may be contemplating extending credit to an individual, lenders of money, an employer who is contemplating employing a person in a position of trust, a fraternal organization representative and, as said by the commander of the records division of the police department, numerous other persons. The records of the police department are not open to the public generally but anyone who goes down to see the records must state the purpose for which he wants to see them. A microfilm reproduction of the record relating to plaintiff was introduced into evidence and the record shows the name of the plaintiff, the date of her arrest, and the charge that was made against her. In addition to this record, the police report originally made by the arresting officer is kept on file by the police department and is subjected to a more limited inspection than the other police records.

The ordinance which plaintiff was charged with violating (§ 20, Chap. 46, Vol. 1, p. 685, Revised Code of the City of St. Louis 1948) and which was read into evidence, provides:

“Any person who shall disturb the peace of others by noisy, riotous or disorderly conduct, or by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud and unusual noises, or by unseemly, profane, obscene, indecent, lewd or offensive language, calculated to provoke a breach of the peace, or by assaulting, striking or fighting another in any park, street, alley, highway, thoroughfare, public place or public resort within the city, or any person who, in the city, shall permit any such conduct in or upon any house or premises owned or possessed by him or under his management or control, so that others in the vicinity are disturbed thereby, shall be deemed guilty of a misdemeanor.”

We omit defendant’s evidence, except that which is favorable to plaintiff. The defendant in his testimony denied most of the facts testified to in plaintiff’s case. He denied that he ever grabbed plaintiff by the back of the neck or bent her left arm up behind her. However, he admitted that plaintiff said, “Turn me loose, Doctor, turn me loose. * * * You’re hurting me.” He denied that he asked the police to arrest the plaintiff.

Defendant said he had no recollection of receiving a telephone call from the medical record librarian of Park Lane Hospital that plaintiff was there to inspect the records of Aletha Davis and he denied that he told the librarian that plaintiff could not see the records requested without his consent. Defendant knew what an authorization from the Division of Workmen’s Compensation was and said that he would have given plaintiff permission to inspect the records at the Park Lane Hospital without the consent of Aletha Davis, if plaintiff had an authorization from the Division of Workmen’s Compensation. He denied that his nurse informed him that plaintiff had such an authorization, stating that the nurse merely told him that plaintiff wanted to see some records of a patient.

The nurse, Ozella Green, testified in defendant’s case that plaintiff was the last one in the waiting room when she (plaintiff) went back into the corridor. She said that plaintiff talked to her about three times and that each time she told the defendant of plaintiff’s request. She further testified that when plaintiff was back in the corridor she heard her call out, “Dr. Rosenberg, Dr. Rosenberg.” She saw defendant bring plaintiff out, at which time “he was holding her arm and pulling her on out and she was saying for him to turn her loose.” She said that plaintiff said “Turn me loose, Dr. Rosenberg, you’re hurting me.” She said that defendant sat plaintiff down in a chair and that plaintiff was sitting in the chair crying and did not get up until the police came and helped her.

Defendant asserts numerous points in support of his contentions and a number of the points are directed to the contention that plaintiff failed to make a submissible case under Count 1 for assault and battery and under Count 2 for false arrest. In reviewing this contention we confine ourselves to the issues submitted in plaintiff’s instructions and determine whether the evidence offered was sufficient to make a sub-missible case under the theories of liability submitted. Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91, 1.c. 96; Bean v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 782, 1.c. 785.

Turning to Instruction No. 3, which submitted plaintiff’s case of assault and battery, said instruction required the jury to find from the evidence that plaintiff “was told by the receptionist at the defendant’s office that she could go in to see the defendant, and that she then passed through an archway and into an east-west corridor, and that while she was there, the defendant came up to her and without first asking her to leave and giving her a reasonable opportunity to do so, if so, did lay his hands upon her and used physical force to propel her into his waiting room, and that he used this force intentionally and without just cause or excuse, and that such force caused her to suffer bodily pain and injury *

Defendant’s principal claims in support of his contention that plaintiff failed to make a submissible case under Count 1 is that plaintiff was a trespasser and was wrongfully there and under such misrepresentations as to constitute a fraud. In further support of this contention, defendant claims that Ozella Green, the receptionist, had no authority to give plaintiff permission or direction to go back into the east-west corridor.

Plaintiff in answer to this claim that she was a trespasser asserts that it makes no difference whether she was a trespasser, licensee, or invitee since no force of any kind may be used to expel a trespasser without first requesting her to leave and giving her a reasonable opportunity to do so. With this we agree.

In the case of Cunningham v. Reagan, Mo., 273 S.W.2d 174, the case was submitted to the jury on defendant’s theory that plaintiff became a trespasser upon the premises; and that if defendant used only necessary reasonable force to cause plaintiff’s removal from such premises, the assault and battery were justified. The Supreme Court in its opinion assumed that for their purposes the plaintiff was a trespasser upon the land rented to the defendant. The court then said: “And we, of course, agree that the tenant had the right, if plaintiff was a trespasser, to order plaintiff off the premises and, in the event of his failure to leave after a reasonable opportunity to do so, defendant had the legal right to use whatever force (within limits not here important) was reasonably necessary to cause plaintiff to leave the premises.” (273 S.W.2d 1.c. 175, 176.)

In Restatement, Second, Torts § 77, p. 133, it is said:

“An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the actor’s land or chattels, if
% *
“(c) the actor has first requested the other to desist and the other has disregarded the request, * *

However, we think there was sufficient evidence to support plaintiff’s submitted theory in her Instruction No. 3, that “the defendant came up to her and without first asking her to leave and giving her a reasonable opportunity to do so,” assaulted her by the intentional use of force “without just cause or excuse.”

Plaintiff’s evidence showed that when she called at the Park Lane Hospital, Mrs. Knoplauch, the medical librarian, after refusing plaintiff’s right to see the records, telephoned the defendant and he told her to have the plaintiff come to his office and he would talk to her there. Pursuant to this invitation, plaintiff went to the office of defendant and presented to the receptionist both authorizations she had procured from the Division of Workmen’s Compensation. Under these circumstances plaintiff was not a trespasser at the time she entered defendant’s office and presented her written authorizations to the receptionist. Plaintiff’s evidence further shows that thereafter defendant saw these authorizations and plaintiff was not told to leave but rather was given to understand that the defendant would see her later in the day.

However, defendant contends that if plaintiff was not a trespasser at that time she later became a trespasser by walking from the waiting room into the east-west corridor. Defendant fails in this claim because plaintiff’s evidence clearly shows that the nurse receptionist returned the authorizations to plaintiff and after plaintiff’s last request to see the defendant, the nurse receptionist told plaintiff she could see the doctor. Ozella Green, the receptionist, in answer to plaintiff’s request as to which way she should go, told her “that way,” pointing to the left. Pursuant to the directions of the receptionist, plaintiff entered the corridor that led to the treatment rooms and finding the doors of all the rooms closed, called out, “Dr. Rosenberg, Dr. Rosenberg.” These facts sufficiently supported plaintiff’s Instruction No. 3 which required the yjrv to find, that plaintiff “was told by the receptionist at the defendant’s office that she could go in to see the defendant, and that she then passed through an archway and into the east-west corridor, * * These facts, if found by the jury, would demonstrate that plaintiff had a legal right to be there and under no circumstances would plaintiff be a trespasser. Plaintiff’s evidence also shows she was not asked to leave before defendant laid his hands upon her.

In further support of the claim that plaintiff was a trespasser, defendant charges that plaintiff misrepresented her right to see the records of the Park Lane Hospital and of the defendant and that this misrepresentation amounted to a fraud upon the defendant. Defendant says that subdivision 6 of § 287.140 RSMo 1959, V.A. M.S., under which the authorizations were issued, pertained to medical and hospital treatment furnished by the employer for an injury under the Workmen’s Compensation Act, and contends that Aletha Davis was not treated at either place for a work injury. The evidence favorable to plaintiff shows that the Workmen’s Compensation claim of Aletha Davis involved an injury to her left leg and left knee and that she had complained to the defendant about her left leg when she saw him in connection with her female trouble. We feel, as contended by the plaintiff, that apart from any statute, plaintiff had a duty and right to investigate her client’s claim and in connection therewith to call at the Park Lane Hospital and the defendant’s office and seek to inspect their records of the treatment, if any, of their client’s work injury. We also think that under the evidence in this case plaintiff had a right under § 287.140, supra, to inspect the records of the hospital and the doctor. It is interesting to note that the defendant testified that he knew what an authorization from the Division of Workmen’s Compensation was and said he would have given plaintiff permission to inspect the records of the hospital and of his office if plaintiff had an authorization from the Division of Workmen’s Compensation. While he denied that his nurse informed him plaintiff had such an authorization, this was a matter of believability for. the jury. We rule that there is no evidence showing that plaintiff misrepresented her right to see the records in question and that no fraud was committed upon the defendant.

In answer to the claim of the defendant that Ozella Green, the receptionist, had no authority to give plaintiff permission and direction to go back into the east-west corridor, we think the evidence shows that the receptionist did have this authority and permission of the defendant and that plaintiff had the right to infer from the facts and circumstances she witnessed in the doctor’s office, concerning the duties and activities of the receptionist, that she had the authority to direct the plaintiff into the corridor and into the direction where she would, find the defendant.

In the case of State ex rel. Massman v. Bland, 355 Mo. 17, 194 S.W.2d 42, 1.c. 46, the Supreme Court approved a general statement of the law as follows:

“That where a principal has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature ox the particular business, is justified in presuming that such agent has authority to perform on behalf of his principal a particular act, such particular act having been performed, the principal is estopped, as against such innocent third person, from denying the agent’s authority to perform it.”

This claim of defendant must fail.

As we have pointed out, even if plaintiff was a trespasser, defendant had no right to use physical force on her to remove her from his office until he had asked her to leave and had given her a reasonable opportunity to do so. However, plaintiff’s evidence was sufficient to support a finding by the jury That she had a right to enter the east-west corridor and at that time defendant had no right to use physical force on her to remove her from his office. We rule that plaintiff made a sub-missible case under Count 1, alleging assault and battery.

We now turn our attention to the other part of defendant’s contention that plaintiff failed to make a submissible case of false arrest under Count 2. The pertinent parts of plaintiff's Instruction No. 5 which submitted the issue of false arrest required the jury to find that plaintiff was told by the receptionist at the defendant’s office that she could go in to see the defendant and that after plaintiff passed through the archway between the receptionist’s room and the east-west corridor, she called out the doctor’s name. The instruction continued, “ * * * but did not use loud or boisterous language in so doing, and that the defendant then came up to her and used loud and boisterous language himself, and that he then became angry and out of peace because he had found her in the east-west corridor and that Mrs. Quinn did not raise her voice until after the doctor used loud and boisterous language to her, and that he remained upset and out of peace while conducting her to the waiting room and until she was arrested, and that the only commotion she made in his waiting room was to cry.

“Then you are instructed that Mrs. Quinn was not guilty of peace disturbance in violation of the City Ordinance read to you, and if you so find and then further find that the defendant did not have reasonable grounds for suspecting that she was guilty of the offense of peace disturbance, and that he caused her to be arrested by police officers of the City of St. Louis, and that she was then deprived of her liberty and in the custody of the police until she was released on bond at the police station, and that the charge of peace disturbance made against her was dismissed, * * * ” then the jury was told if they found that plaintiff sustained compensatory or actual damages, their verdict should be in favor of plaintiff.

Here again, defendant asserts numerous points in support of his contention. We think plaintiff has correctly categorized them when she defines defendant’s claims in support of his contention as (1) that plaintiff was guilty of a breach of defendant’s peace and that reasonable ground for her arrest existed, and (2) that she consented or assented to her own arrest and invited the same by remaining on the premises until the police arrived.

Before the peace of the defendant could be disturbed he had to be within the peace. In the case of the City of St. Louis v. Sage, Mo.App., 254 S.W.2d 252, 1.c. 254, this court, in quoting from the case of State v. Rogers, Mo.App., 8 S.W.2d 1073, 1074, said:

“The statute makes it a misdemeanor to disturb the peace of an individual by loud and unusual noise or offensive and indecent conversation, etc. The peace of an individual cannot be disturbed, unless the individual is within the peace. State v. Davenport, 221 Mo.App. 37, 297 S.W. 713. To charge that the peace of an individual is willfully disturbed is equivalent to charging that the individual is within the peace. A person not in the peace could be further provoked, but unless he is in ‘repose of mind and peaceful intent’ his peace cannot be disturbed. State v. Davenport, supra.”

There is no evidence to show that plaintiff used loud or boisterous language while in the corridor or elsewhere but there is plenty of evidence favorable to plaintiff, which could be believed by the jury, that defendant was out of peace. Plaintiff’s evidence was sufficient to show that defendant was angry at plaintiff’s presence in the corridor and showed his displeasure by assaulting plaintiff in the manner described heretofore and when plaintiff informed the doctor that she was under treatment by a doctor and asked him not to hurt her, he said, “Treatment, I’ll give you a treatment, you’ll remember the treatment I’ll give you.” Thereafter, continuing his loud and boisterous conduct and evident displeasure at what plaintiff had done, said, “If you were a man I’d bust you right in your nose, in your mouth.” These words of defendant and his assault in conducting plaintiff out of the corridor into the waiting room and defendant’s conduct in running to the nurse and running back to the plaintiff and standing over the plaintiff were sufficient for the jury to find that he was “out of peace” before plaintiff raised her voice in protest at his assault. All of this was done by the defendant despite the fact that plaintiff did not use loud or boisterous language preceding his aforesaid conduct.

Plaintiff was not guilty of any conduct “calculated to provoke a breach of the peace,” City of St. Louis v. Slupsky, 254 Mo. 309, 162 S.W. 155, 49 L.R.A.,N.S., 919, because prior to defendant’s loud and boisterous language and his subsequent conduct, plaintiff merely called out “Dr. Rosenberg, Dr. Rosenberg.” While she did protest defendant’s assault and injury to her person and did cry in the waiting room, this occurred after the defendant was “out of peace” and was a normal reaction to defendant’s abusive language and assault.

While the St. Louis Ordinance, heretofore quoted, provides that a peace disturbance may be caused by the commission of other conduct and language described in the ordinance, we feel it was unnecessary to prove or submit to the jury that plaintiff was not guilty o'f conduct or the use of language other than the “loud and boisterous” type charged against her, inasmuch as defendant testified to no conduct or language of plaintiff within the ordinance, except “loud and boisterous language.”

Further, the jury could have found from plaintiff’s evidence that the defendant had no reasonable grounds for suspecting that she was guilty of peace disturbance. As we have pointed out, there was sufficient evidence from which the jury could find that plaintiff was in the east-west corridor because she had been directed there by the receptionist and that while there she used no loud or boisterous language and that it was the defendant who used loud and boisterous language, became angry and “out of peace.” We think the evidence favorable to plaintiff clearly shows that the jury could have found that the defendant did not have reasonable grounds for suspecting that plaintiff was guilty of peace disturbance.

As pointed out by plaintiff, defendant seems to contend that plaintiff should have left the waiting room after she was ejected from the east-west corridor by the defendant. If we assume that she should or might have done so, this would not be a sufficient reason for having her arrested for peace disturbance, since all she was doing in the waiting room at the time was crying because of defendant’s conduct and assault. See Hoagland v. Forest Park Highlands Amusement Co., 170 Mo. 335, 70 S.W. 878, and Cummins v. St. Louis Amusement Co., Mo.App., 147 S.W.2d 190, where the court discussed the assertion of a wrong reason for an assault in removing a person from premises.

Answering defendant’s claim that plaintiff consented and invited her arrest by remaining in defendant’s waiting room until the police arrived, we point to the evidence favorable to plaintiff which shows that plaintiff thought she had to wait in the waiting room, inasmuch as defendant had called the police and she did not want to give the appearance of being guilty or fleeing from the police. Also, as pointed out by plaintiff, she was upset and injured by defendant’s treatment of her and she can hardly be blamed for waiting in the waiting room to compose her-' self. We do not see anything in the evidence adduced by plaintiff that would support defendant’s claim that she consented to and invited her arrest. It should be noted that she was arrested for peace disturbance and not for trespass. We have examined the authorities cited by the defendant and find them inapplicable. In the case of Wehrman v. Liberty Petroleum Company, Mo.App., 382 S.W.2d 56, the evidence showed that plaintiff told one of the defendants, in effect, to go ahead and call the police. We held that this evidence, wherein plaintiff said to go ahead and call the police, would not justify an inference that plaintiff thereby consented to his subsequent arrest. As plaintiff points out, the evidence of “consent” was much stronger in that case than in the case at bar. This claim of defendant must fail. We rule that plaintiff made a submissible case under Count 2 alleging false arrest.

The next principal contention made by defendant is that the trial court erred in giving and reading to the jury, at the request of plaintiff, Instruction No. 5 covering the charge of false arrest. All of the claims made by defendant in support of his contention that plaintiff failed to make a submissible case and what we have said regarding that contention is a sufficient answer to the instant contention.

The same is true of defendant’s next contention, ' namely, that the trial court erred in giving and reading to the jury, at the request of the plaintiff, Instruction No. 3 submitting assault and battery. The basis of defendant’s claims made in support of this contention and his entire argument are predicated on the conclusion that plaintiff at all times was a trespasser. This claim has been sufficiently discussed heretofore. The instruction challenged was sufficiently supported by credible evidence.

Defendant next contends that Instruction No. 7 covering damages that may be recovered for “injuries, if any, and bodily pain, mental anguish and humiliation, if any” suffered by plaintiff “as a direct result of the force used upon her as mentioned in Instruction No. 3” (assault and battery) permitted the allowance of a double recovery.

Defendant’s argument in support of this contention is not clear and the authorities cited in support of this contention present entirely different forms of instruction. The principal authority relied on by defendant in this connection is Alexander v. Kansas City Public Service Co., Mo.App., 268 S.W.2d 451, 454. This case involved an instruction which permitted recovery for “injuries” and “for such aggravation or intensification of a previous existing abnormal condition, * * The court in that case held that the instruction was erroneous because it permitted a double recovery. The instant instruction does not permit such a recovery and, of course, as pointed out, limits recovery to such injuries suffered “as a direct result of the force used upon her as mentioned in Instruction No. 3” for assault and battery. It obviously limited recovery to such injuries as plaintiff suffered by reason of the assault.

Defendant next complains that the instruction permitted recovery for “humiliation” and that Instruction No. 8, which was an instruction for recoverable damages under Count 2 (false arrest) included the same item of damage. It is unnecessary to set out Instruction No. 8. It is sufficient to state that the instruction does not use the term “humiliation.” However, under its language the jury was permitted to consider the humiliation suffered by plaintiff, but Instruction No. 8 limits the damages to such as resulted from her arrest and loss of liberty as mentioned in Instruction No. 5. We find no error in either instruction in this connection.

Defendant further claims that Instruction No. 7 told the jury they were required to assess punitive damages. It does no such thing. It merely permits the jury to assess punitive damages if they find from the evidence that defendant’s use of physical force on the plaintiff was willful and malicious as the words were defined in another instruction.

Other complaints against this instruction made by the defendant have been answered in our discussion of other points and should not and need not be repeated here.

The final contention made by defendant is that the verdict of the jury under Count 2 is excessive. In support of this contention defendant cites many cases, most of which were decided many years ago and under entirely different economic conditions. Frankly, some of the cases approved sums for actual damages, which, when considered in the light of the deflated value of the dollar today as compared to the value of the dollar at the time the case was decided, would support the $10,000 judgment in the instant case for actual damages. In this connection we limit our discussion to the verdict of $10,-000 for actual damages returned by the jury under Count 2 for false arrest. This seems to be the only verdict that concerned defendant in the argument contained in his brief.

In our examination of the cases the items of damage recoverable by plaintiff take a wide range. In reading the cases plaintiff may recover for the humiliation or mental suffering sustained. The jury may consider her station in life, the fact that she is a lawyer, a wife and a mother of minor children, the fact that she has never been arrested before and that there was no evidence that would show the lack of an impeccable reputation.

As pointed out by plaintiff there are many intangibles and imponderables that may be considered in calculating damages in a false arrest case. We think the considerations that should be given to the verdict under discussion in this case are best epitomized in the case of Huffstutler v. Coates, Mo., 335 S.W.2d 70, wherein the court affirmed an award of $7000 actual damages and $3000 punitive damages and in doing so quoted with approval from the case of Carp v. Queen Insurance Co., 203 Mo. 295, 360, 101 S.W. 78, 99, which was a case involving malicious prosecution and therefore not unlike the instant case. In the matter of the consideration of damages the court in the Carp case said:

“The law concedes a wide latitude of discretion to the jury in actions of this class, and their verdict should not be interfered with unless the appellate court can say it was the result of prejudice, passion, or malice. Numerous considerations must necessarily enter into the question of what is just compensation in such a case, hut no definite rule can be laid down to any of them. The law has provided that the jury shall decide this question. Disgrace is a relative term. What is such to one man is not necessarily so to another; and, while it applies to each, its effect or measure is great or small as other conditions exist. Mental anxiety and pain caused thereby, and humiliation and danger from a prosecution for a grave criminal offense, are all conditions for the jury, as well as the jeopardy in which the liberty of the plaintiff was placed by such prosecution. We are unable to say, after a careful consideration of all this evidence, that the verdict of the jury was such as to evince passion, prejudice, or malice towards the defendants by the jury.” (101 S.W. 1. c. 99).

In the Carp case the Supreme Court held a verdict of $12,500 was not excessive. In addition to all of the elements that the jury may consider as outlined in the above quotation, we add the fact that plaintiff was a practicing lawyer, to whom an unmarred and unblemished reputation for peacefulness and obedience to the law is of great importance in the practice of her profession. Certainly a charge of peace disturbance against a lawyer is likely to produce greater damage to the lawyer’s future, than to one who gains a livelihood in a nonprofessional area. The learned trial judge did not consider the verdict excessive or the result of passion, prejudice or malice. Neither do we. This contention must be ruled against defendant.

We think defendant had a fair and impartial trial and the issues for the most part depended upon the credibility of plaintiff and defendant and, obviously,.the jury believed the plaintiff.

The judgment should be affirmed. It is so ordered.

ANDERSON, J., and FRANK D. CON-NETT, Jr., Special Judge, concur.


author: DOERNER, Commissioner.

text:
    Jack BURNS, a/k/a John T. Beirne, Plaintiff-Respondent, v. Adaline G. WEBER, Defendant-Appellant.
    No. 32175.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.
    Rehearing Denied Feb. 18, 1966.

      Albrecht & Homire, James L. Homire, Jr., St. Louis, for defendant-appellant.
    Wyne & Delworth, William H. Wyne, Jr., John H. Hartenbach, Clayton, for plaintiff-respondent.
   DOERNER, Commissioner.

This is an appeal by defendant from a summary judgment for $3200.00, together with interest thereon, entered in favor of plaintiff in an action on a promissory note.

In her brief defendant asserts that the court erred in rendering the summary judgment against her because plaintiff’s petition stated no claim upon which relief could be granted; and because on the record there remained in dispute genuine issues as to material facts. These assignments require a comprehensive review of the pleadings and other parts of the record.

Plaintiff alleged in his petition that on or about December 15,1954 defendant made, executed and delivered to plaintiff a promissory note in the amount of $3500.00, payable on demand, together with interest thereon at the rate of 4% per annum; that $300.00 had been paid on the principal prior to 1961, and that interest had been paid through the year 1960; and that demand had been made for the balance due of $3200.00, together with interest thereon. The prayer was for judgment for $3200.00, interest thereon from January 1, 1961, the costs of collection, and attorneys’ fees. The note, filed with the petition as an exhibit, was dated December 15, 1954, was signed by both defendant and one John J. Manion, and read that “- after date for value received I promise to pay to the order of Jack Burns of Creve Coeur, Mo. Three thousand five hundred dollars with interest at 4 percent per annum until paid.”

Defendant’s original answer was merely a general denial. Thereafter, in accordance with Civil Rule 59.01, V.A.M.R., plaintiff filed and served on defendant a written request for the admissions of defendant that the note “is genuine,” and that defendant “has made no payment in compliance with the terms of the above-described demand note.” To these requests defendant filed'an unsworn answer in which she denied each and every request for admission submitted by plaintiff. Plaintiff then moved for summary judgment, and in support thereof filed an affidavit in which he deposed:

“On the 15th day of December, 1954, defendant executed and delivered a Promissory Note payable to plaintiff in the amount of Three Thousand Five Hundred Dollars ($3,500.00), payable on demand together with interest thereon at the rate of four per cent (4%) per annum; a copy of said Note is attached hereto.
“Prior to the date of the affidavit, Three Hundred Dollars ($300.00) has been paid on the principal amount of the loan and the interest has been paid through thé year 1960.
“Demand has been made for Three Thousand Two Hundred Dollars ($3,-200.00), the balance of said Note, together with interest from January 1, 1961.”

Defendant filed no opposing affidavit or affidavits. However, after plaintiff’s motion for summary judgment had been filed, but before it was presented or heard, defendant filed (presumably by leave) an amended answer in which she admitted that she had signed the note attached to plaintiff’s petition as an exhibit; admitted that the payments of principal and interest had been made as alleged in plaintiff’s petition; denied plaintiff’s allegation as to demand for payment and the balance due; affirmatively pleaded a lack of consideration to her for her execution of the note; and also alleged affirmatively that she had signed the note solely as the agent and bookkeeper for John J. Manion, that at the time the note was signed it was agreed between the parties that she would in no way become liable thereon, and that her signature was requested by the plaintiff because of her familiarity with the accounts and affairs of Manion. Matters thus stood when plaintiff’s motion for summary judgment was argued, submitted, and subsequently sustained.

Citing Section 401.071, RSMo 1959, V.A.M.S., defendant asserts that no claim upon which relief could be granted was stated because neither plaintiff’s petition nor his affidavit showed that presentment and demand for payment had been made upon defendant. We note that while it is alleged in plaintiff’s petition and in his affidavit that, “demand has been made” it is not stated that such demand was made on defendant. But in any event Section 401.-071 is not applicable since defendant as a co-maker of the note is a * * * person primarily liable on the instrument, * * * ” in which case, “Presentment for payment is not necessary * * Section 401.070. And as stated in Douglass v. Douglass, Mo., 363 S.W.2d 566, 571: “ * * * The cases hold that in an action against the maker of a note, no demand for payment is necessary. Hackett v. Dennison, 223 Mo.App. 1213, 19 S.W.2d 541; Lambert v. Gutman, Mo.App., 171 S.W.2d 735. * * * ”

The vital issue presented by defendant’s second assignment is whether, under the pleadings, the admissions, and plaintiff’s affidavit, there remained any genuine issue as to a material fact. If so, then it was error to render the judgment in favor of plaintiff, for Civil Rule 74.04(h) provides that, “In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Nelson v. Browning, Mo., 391 S.W. 873; Cooper v. Finke, Mo., 376 S.W.2d 225. Plaintiff contends that under the record no such issue remained. Defendant, to the contrary, asserts that the two affirmative defenses pleaded in her amended answer, lack of consideration and what she terms a “specific contractual agreement” that she would not be liable on the note, raised genuine issues as to material facts which precluded the entry of the summary judgment.

It is true that various issues were resolved against defendant by the pleadings, her admissions, and plaintiff’s affidavit. Thus, by failing to verify her answer to plaintiff’s request for admissions she is deemed to have admitted that the note was “genuine” (that is, not spurious or a forgery), and that she had made no payment thereon. Similarly, no issue remained regarding defendant’s execution of the note; in fact, in her amended answer she admitted that she had signed the note attached to plaintiff’s petition. Lastly, by not filing an opposing affidavit she failed to controvert those matters set forth in plaintiff’s affidavit. They related, however, only to defendant’s execution and delivery of the note; to the payments of principal and interest, although by whom is not stated; to a demand for payment, but again, on whom such demand was made is not specified, and to the balance due on said note.

It is important to note that the subject of consideration is not referred to in either the plaintiff’s request for admissions or in his affidavit. Defendant was not asked to admit that there had been some consideration for her execution of the note, nor did plaintiff so depose in his affidavit. Essentially, therefore, the situation is one in which plaintiff merely declared on the note, negotiable in form, and attached it to his petition; and defendant, while admitting that she had executed the note, affirmatively pleaded the defense of want of consideration. Plaintiff argues in effect that under these circumstances he was entitled to summary judgment because Section 401.024 provides that, “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration * * But as the words “prima facie” indicate, the presumption thereby created is only rebutta-ble, not conclusive. Section 401.028, RSMo 1959, V.A.M.S., provides that, “Absence or failure of consideration is a matter of defense as against any person not a holder in due course * * And since the plaintiff is the payee he is not a holder in due course, and the note is subject to the defense of want of consideration. Popovsky v. Griwach, 361 Mo. 1120, 238 S.W.2d 363; Mutual Life of Illinois v. McKinnis, Mo. App., 15 S.W.2d 935. Hence the presumption created by Section 401.024 does not constitute “unassailable proof” within the meaning of Civil Rule 74.04(h). Because want of consideration is an affirmative defense it was, of course, necessary for defendant to plead that issue, Civil Rule 55.10, V.A.M.R., as she did in her amended answer. And since the note does import con-sideration, to overcome this in the trial the burden of proof will rest on defendant to establish the want of consideration by competent proof. Cox v. Sloan, 158 Mo. 411, 57 S.W. 1052; Connersville Casket Co. v. Gist, Mo.App., 355 S.W.2d 374. But it is obvious that defendant’s pleaded defense of absence of consideration raised a genuine issue as to a material fact and that under the present state of the record plaintiff was not entitled to a summary judgment.

Defendant’s other plea, that at the time the note was executed it was agreed between the parties that defendant would in no way become liable thereon, presented no defense and by itself would not have precluded the entry of a summary judgment. A similar agreement was considered by this court in F. M. Deuchler & Company v. Hampton, Mo.App., 339 S.W.2d 499, 503, where we held:

“It is the settled law of this state that parol agreements made prior to or contemporaneously with the execution of the note, which tend to contradict or vary the terms of the note, cannot be set up as a defense to a suit on the note. Farm & Home Savings & Loan Ass’n of Missouri v. Theiss, 342 Mo. 40, 111 S.W.2d 189; Bay v. Elmer, Mo.App., 237 S.W.2d 932; Farmers’ Bank of Weatherby v. Redman, Mo.App., 24 S.W.2d 235; Main Street Bank v. Ennis, 222 Mo.App. 915, 7 S.W.2d 391; Farmers’ State Bank v. Miller, 222 Mo.App. 633, 300 S.W. 834.”

For the reason stated the judgment is reversed and the cause remanded for further proceedings.

PER CURIAM:

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is reversed and the cause remanded for further proceedings.

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


author: TOWNSEND, Commissioner.

text:
    Albert BOHM, Plaintiff-Appellant, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, Defendant-Respondent.
    No. 32055.
    St. Louis Court of Appeals. Missouri.
    Jan. 18, 1966.
    Rehearing Denied Feb. 18, 1966.

      Benson Cytrom, Weber & Cytron, House Springs, for appellant.
    John M. Goodwin, Henry S. Stolar, Hocker, Goodwin & MacGreevy, St. Louis, for respondent.
   TOWNSEND, Commissioner.

This action was brought on an accident and disability income policy issued to the plaintiff by the defendant company on July 30, 1958. Plaintiff alleges that he suffered injuries in an automobile accident on November 22, 1960, as a result of which he was totally disabled for a certain period and thereafter up to the time of filing his petition was partially disabled from performing certain substantial duties of his occupation. Defendant has refused to make any payment to plaintiff and as a matter of defence asserts that plaintiff, knowingly and fraudulently, misstated his medical condition in his application for the policy and that he concealed from defendant his previously existing physical condition. Trial was had in May, 1964, resulting in a verdict and judgment for defendant.

In the application for the policy plaintiff was asked the following questions: “10. What indemnity have you received for injury or sickness?” (Ans.) “None”. “12. To the best of your knowledge and belief (a) are you in sound condition mentally and physicially?” (Ans.) “Yes.” “(b) Have you any mental or physical defect not specified above?” (Ans.) “No.” “13. Have you received medical or surgical advice or treatment at any time during the last five years or have you been disabled at any time during that period?” (Ans.) “No.”

In 1944 plaintiff suffered a back injury while on duty as an army officer due to a shell concussion in the course of an enemy barrage. For a period of nine months thereafter he was hospitalized in various government hospitals. Following this period of hospitalization plaintiff was placed on the retired list as a result of a finding by the appropriate army board that he was not in condition to perform his normal functions. Since that time he has received the pay of an officer of his rank on inactive status. For a period of approximately ten years after retirement plaintiff suffered intermittent pains in his back, but during that period he had no treatment for his back condition other than an occasional massage. Finally his doctor, a personal friend, who had furnished those massages, told him that he needed some exercise to tone up his back muscles. Thereupon plaintiff took up golf. From the time he started playing golf, in 1954 or 1955, he states that he had no further trouble with his back. In the latter part of 1957 or the early part of 1958 plaintiff was hospitalized for a short period because he was having indigestion; his doctor found that he had some duodenal ulcers, which were shortly cleared up.

Section 376.580, V.A.M.S. provides:

“No misrepresentation made in obtaining or securing a policy of insurance on the life or lives of any person or persons, citizens of this state, shall be deemed material, or render the policy void, unless the matter misrepresented shall have actually contributed to the contingency or event on which the policy is to become due and payable, and whether it so contributed in any case shall be a question for the jury.”

The policy issued to plaintiff provided for an accidental death benefit and so was a policy of insurance on his life within the meaning of Section 376.580. Lamport v. General Accident, etc. Corporation, 272 Mo. 19, 197 S.W. 95; Boillot v. Income Guaranty Co., 231 Mo.App. 990, 83 S.W.2d 219.

Defendant’s answer sets out that the allegedly fraudulent misstatements of plaintiff relating to his medical condition “were material to plaintiff’s disability or loss, if any”, but does not directly plead that the matter misrepresented contributed to plaintiff’s disability. It is further alleged that the issuance of the policy was induced by plaintiff’s fraudulent misrepresentations and by plaintiff’s concealment of his previously existing back condition and that the “disability, if any, of the plaintiff, which is the subject of this suit, is directly attributable to and connected with said concealment and misrepresentation”. While it is difficult to conceive of back and neck injuries being attributed to a written or spoken statement, liberality in the matter of pleading makes it possible for us to interpret the statement as saying that the disability on account of which the action is brought was contributed to by the matter misrepresented.

In maintaining its asserted defence of misrepresentation, defendant contends that question 10 was falsely answered. It equates the retirement pay of an officer retired because of physical disability to indemnity. It is the position of plaintiff that receipt of retirement pay is not receipt of an indemnity. It is unnecessary to determine that controversy. Assuming that receipt of retirement pay amounts to being indemnified and thereby assuming that the answer to question 10 was a false answer, we are presented the question of the applicability of Section 376.580. That section makes a misrepresentation immaterial unless the matter misrepresented actually contributed to the happening of the event on which payment under the policy depends. Of course, defendant submitted no evidence that the receipt of retirement pay contributed to the injuries suffered by plaintiff in the automobile accident. Nor could it. In this setting, receipt of such pay could have had no contributory effect.

The answer to question 13 was plainly a false answer. Plaintiff’s own testimony showed that in less than five years before the issuance of the policy he had been hospitalized and treated for duodenal ulcers with complete success. Here again it is obvious that the matter misrepresented had no relation to the happening of the event about which plaintiff seeks recovery. Even if this misrepresentation were treated as fraudulent (as plaintiff’s testimony tends to indicate that it was not) that conclusion would not obviate the application of Section 376.580. The provisions thereof apply whether the misrepresentations are fraudulent or innocent. Kern v. Supreme Council, 167 Mo. 471, 67 S.W. 252; Burgess v. Pan-American Life Ins. Co., Mo., 230 S.W. 315.

This brings us to the allegedly false answers given to the two parts of question 12. In large part the trial of this case seems to have been conducted on the assumption that the ultimate facts to be established were: (a) whether the applicant was in sound condition, mentally and physically, at the time of making application; and, (b) whether the applicant had any mental or physical defect at the time of such application. The real ultimate fact to be established was that of the state of mind of the applicant. At the time of applying he was not asked whether he was in sound condition or whether he had any mental or physical defect. The questions put to him related to his knowledge and belief and accordingly, in considering the matter of misrepresentation, the real query should have been, what was the state of mind of the applicant at the time? State of mind is a fact to be established as any other fact is established, namely, by competent evidence relating thereto. Whether or not there was a misrepresentation could not be determined until that question as to state of mind was answered. If the applicant, for example, did not know of a defect which actually existed and had no belief that it existed, his negative answer — ■ such as was given to question 12 — could not be a misrepresentation.

On the other hand, if the applicant had knowledge of an existing defect but answered the question in the negative, he would be making a false representation of his state of mind which would also be a misrepresentation as to the existence of the particular defect. In this latter case the misrepresentation concerning the defect would become material and would give the insurer a defence — provided the existence of the defect contributed to the happening of the event upon which payment under the policy would otherwise become due.

Where a defence is rested upon charges of misrepresentation it is stating the obvious to say that the first requisite is proving the misrepresentation. And insofar as the answers to question 12 are concerned that involves showing the state of mind of the applicant.

The only positive direct evidence of state of mind came from the plaintiff himself. He testified that at the date of the application he knew of no mental or physical defect and that to the best of his knowledge and belief he was in sound condition, that his back had not bothered him for three or four years prior to the date of application and up to the time of the automobile accident, that prior to the date of the application he actively golfed, bowled, played ball and fished without any back trouble, that from the time he started playing golf and getting exercise he had no further trouble with his back. The evidence as to the old back injury and the years of intermittent pain was properly admitted because relevant to the issue of state of mind since the finder of fact might infer knowledge of present defect from the accumulation of historical facts. No other evidence as to plaintiff’s state of mind was submitted by defendant. It follows that if plaintiff made no misrepresentation as to his state of mind, his actual physical condition at the time of application was immaterial and would afford no defence to the insurer. If plaintiff misrepresented his state of mind as to his back condition — meaning that he had actual knowledge or belief of a defect or of unsound condition — then the misrepresentation was material and would give a defence insofar as injury to his back was concerned.

At this point we are confronted with an anomalous situation. The positive and un-contradicted testimony of the plaintiff and his medical practitioner shows that as a result of the automobile accident the plaintiff sustained injuries, not only to his back, but to the neck region — “the cervical plexus”. The doctor found that there was evidence of marked muscle spasm, tenderness and pain in the neck, a decrease in the left biceps, triceps jerks, numbness in the left side of the face and left side of left hand, hence injury to the nerve root in the neck region and irritation of the fifth cranial nerve. He summarized by giving a diagnosis of whiplash injury with irritation of left cervical root. He stated further that the neck injury was sufficient to incapacitate plaintiff for the seven months initial period and also to incapacitate him from performing all the important functions of his occupation for the year following. Plaintiff seeks indemnity for both periods. In describing his neck injury, plaintiff stated that his neck would become so rigid that he could not move it, that he suffered severe headaches and severe pains between his shoulder blades for approximately two years, that he was required to wear a neck brace or collar up to “about six or seven months” before the trial in May, 1964, that the neck brace fitted tightly and held the neck rigid and so because of reduced flexibility interfered with plaintiff’s facility in driving an automobile, that he had been placed in traction for treatment of the neck injury, that after plaintiff had made a part-time return to work in May, 1961, he was again hospitalized for about seven weeks and was again placed in traction, that prior to the automobile accident plaintiff had never had an injury to his neck. Defendant has directed no evidence toward a negativing of the neck injury or the resulting incapacitation.

Thus if plaintiff made no misrepresentation as to his state of mind there is no bar to his recovery for all the disability pleaded and shown. If plaintiff misrepresented his state of mind and a physical defect (back) existed to his knowledge at the time of application, then the misrepresentation would be material insofar as any disability was attributable to the back injury. But in the latter event the misrepresentation would not be material insofar as the neck injury was involved because it did not contribute to the incurring of the neck injury. Thus, in fact, we find that plaintiff suffered two injuries, one to the lumbar-sacral region and one to the cervical area. The injuries were separate and distinct and in no sense identical. In spite of the un-contradicted medical evidence of the neck injury, the instructions take no cognizance thereof.

Defendant’s Instruction No. 5 to which plaintiff objected hypothesized the following background facts which plaintiff’s own testimony had developed: the back injury of 1944, the consequent hospitalization, his retirement from the Army and receipt of retirement pay, the intermittent pain which he suffered for a period of about ten years, his application for the policy and questions 10 and 12 of the application and the answers thereto. The balance of the instruction is here broken down into numbered parts for ease of reference. (1) Next, the instruction hypothesized plaintiff’s knowledge that the answers to questions 10 and 12 were untrue, without differentiation between them. (2) “and if you further find that had plaintiff disclosed his previous back complaint and medical treatment for said back complaint that the defendant company would not have issued the policy”, and (3) “if you further find that said preexisting condition, dating from the injury of 1944 or 1945, caused or contributed to cause his disability, if any, as a result of an automobile accident on November 22, 1960, then you are instructed that your verdict should be in favor of the defendant”.

That part of the instruction designated above as (2) relates to the underwriting policy of the company. A considerable volume of testimony as to that policy of the defendant was taken. This testimony was largely irrelevant and certainly prejudicial. It is the privilege of the company to establish such policy relating to the issuance of its insurance contracts as it may desire. It is equally the privilege of the insurer to elicit from the applicant such detailed information concerning his life history as it may wish, all as a prelude to the issuance of the policy. Questions put to an applicant for insurance and his answers to the same serve as an aid in the implementation of its underwriting policy. If the questions put on an application do not fully develop the basis of an adopted underwriting policy, that is simply a matter of choice on the part of the company. A failure by an applicant to delineate a large part of his life history cannot be regarded as a concealment from the company if the company’s questions do not call for the information which it regards as pertinent to its underwriting policy. In the instant case the applicant was not asked whether he had ever suffered any injury; his failure to volunteer information concerning matters about which he had not been asked does not amount to a misrepresentation or concealment simply because the company in furtherance of its underwriting policy might have declined to issue the policy if he had volunteered the unasked for information. Here the insurer in the exercise of its freedom of choice elected not to ask such a question concerning prior injury and no duty rested on plaintiff to talk about such a happening. The error in this part of the instruction is plain. The practically assured effect on the jury is evident.

Plaintiff complains that that portion of the instruction labelled (3) above assumed a fact issue — that plaintiff had a pre-existing back condition dating from 1944 or 1945 which contributed to cause his disability. This portion of the instruction is ambiguous; it is susceptible of the interpretation that the back condition continued from 1944 or 1945 through the time of the application and contributed to the disability following the automobile accident, in which case the instruction would relate to the actual and continuing physical condition of plaintiff. In the alternative the instruction might be interpreted as stating that if the pre-existing back condition did actually exist at the time of the automobile accident and so contributed, verdict must be for defendant, although the continuance of the pre-exist-ing condition might have been unknown to applicant. If the matter be considered in the light of the first mentioned possible interpretation, there is no direct evidence that at the time of the application the back condition still persisted and much that it did not. If the second possible interpretation be adopted the instruction does not hypothesize plaintiff’s knowledge or belief as to such back condition at the time of the application. Nor is the uncertainty as to the meaning of the instruction cured by the previous part hypothesizing the falsity of the answers to question 12 and plaintiff’s knowledge of such falsity. Nowhere does the instruction pinpoint a continuance of the back injury as the subject of plaintiff’s known false answer. No finding is required that the answers were false because of a then known back defect or condition. But the ambiguity is sufficient ground for condemning this part of the instruction. However defendant maintains that “it was not necessary to the defense of misrepresentation that the misrepresented back condition existed at or shortly before the execution of the policy application”. We do not agree. Misrepresentation does not exist in vacuo. A representation relates to a past or present fact. The future involves either promise or prophecy. In the present case the only pertinent representations related to- the then existing present: “To the best of your knowledge and belief (a) Are you in sound condition” etc.? (b) “Have you any . . defect” etc.? By such questions, plaintiff was not asked about, and consequently made no representations concerning, past facts. — His only representation was as to his then present state of mind. The crucial moment for determining whether a misrepresentation had been made is as of the moment of making the representation.

Plaintiff’s brief continues his complaint in the following language:

“While the instruction requires findings that plaintiff sustained an injury to his back in 1944 or 1945 it does not submit to the jury the nature or extent of the injury, or the fact of pain or disability after 1954 or 1955, or the continuance of any symptoms, defect or condition after those dates . . . The . . . evidence clearly placed in issue plaintiff’s physical condition from and after 1954 and 1955 and the assumption of the fact that the condition of 1944 or 1945 continued after that date in Instruction 5 was prejudicial error, entitling plaintiff to a new trial”.

This contention of the plaintiff rests in part upon these facts: Defendant placed in evidence the Veterans Administration record relating to plaintiff’s service injury, the initial diagnosis, an interim diagnosis and the final discharge diagnosis, all in 1945. Plaintiff’s medical practitioner, whose specialty is “diseases of the nervous system and the nerves and spinal cord”, testified as to his initial and his continuing attendance upon plaintiff after the automobile accident and his analysis of the latter’s physical condition. His diagnosis on the whole showed little if any identity of injuries with those recorded in the diagnosis preserved in the Veterans Administration record. Plaintiff draws attention to “the distinction drawn between the injury which the plaintiff presently had and the injury he previously had”.

Bearing in mind that any misrepresentation made by plaintiff would be as to his state of mind and that state of mind might be inferred from an accumulation of facts known to him, the significance of the distinction to which plaintiff draws attention is apparent. If there is lack of identity between the injuries suffered in 1944 and those existing after the automobile accident, such evidence would tend to support plaintiff’s contention that, in 1958, to the best of his knowledge and belief he did not have a physical defect and was in sound condition. Perhaps more importantly, such lack of identity would be highly pertinent to the issue of whether a misrepresentation, if there were one, related to a matter which actually contributed to the contingency on which payment was due under the policy.

While the statute, Section 376.580, makes the question of whether the matter of a misrepresentation contributed to the contingency a question for the jury, yet the general rule regarding submissibility still prevails. As was stated in Kirk v. Metropolitan Life Insurance Co., 336 Mo. 765, 81 S.W.2d 333, 344, “Yet the power remains in the court to determine whether there is any evidence which authorizes submission of the case to the jury. * * * We are of opinion that in this case the evidence did not justify submission of the case to the jury”. This position of the Supreme Court as to submissibility was reiterated in Winger v. General American Life Ins. Co., Mo., 345 S.W.2d 170, 182: “Of course the power remains in the court to determine whether there is any evidence which authorizes submission of the case to the jury.”

For the reasons stated judgment must be reversed and the case remanded.

PER CURIAM:

The foregoing opinion by TOWNSEND, G, is adopted as the opinion of this Court. Accordingly, judgment is reversed and the case remanded.

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