author: MILLIKEN, Chief Justice.

text:
    Hugo TAUSTINE, Police Judge of the City of Louisville, Appellant, v. Carl FLEIG, Appellee.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      Herman E. Frick, Louisville, for appellant.
    R. Davis McAfee, Louisville, for appellee.
   MILLIKEN, Chief Justice.

This is an appeal from a judgment which granted a writ of prohibition preventing the Police Judge of the City of Louisville from hearing and disposing of a criminal charge in the Louisville Police Court on the ground that jurisdiction was lacking because the area where the alleged offense had occurred had not been annexed to the City of Louisville. Appellee, Carl Fleig, was arrested for violating KRS 436.450 (bookmaking) in an area duly annexed by the City of Louisville (January 12, 1961) by enactment of a valid annexation ordinance. Because a remonstrance suit opposing annexation, which was decided in favor of annexation by a jury verdict in the Jefferson Circuit Court (July 8, 1960) was being appealed to this Court at the time of the arrest (March 2, 1961), appellee urges a construction of KRS 81.110 (Protest against annexation of unincorporated territory by first class city; trial; judgment) which would mean that an annexation judgment would not be final so long as there was the possibility of an adverse decision on appeal to this Court. The trial court judgment in the remonstrance suit was affirmed on appeal, Gordon v. City of Louisville, Ky., 357 S.W.2d 693, decided June 22, 1962.

Annexation of territory by a city of the first class is a legislative process authorized by statute, KRS 81.100 et seq. The legislative body of a city of the first class may annex territory by ordinances conforming to the governing statutes. After a proposal to annex is duly advertised the city legislative body may immediately annex the territory by adopting an ordinance to that effect, but if a remonstrance suit is filed in the circuit court the city legislative body must obtain a favorable outcome in the remonstrance litigation in the circuit court before it may enact an ordinance annexing the territory. KRS 81.100. “An appeal from the judgment (in the remonstrant’s suit) may be taken as in other cases,” KRS 81.110(3), but “[t]he judgment shall, when entered, be certified to the city legislative body, which may thereupon annex * * * the territory described in the judgment, and the territory shall then become * * * a part of the city.” KRS 81.110(4). There was no attempt to supersede the judgment so the question of whether it could be superseded is not before us. See Am.Jur.2nd, Appeal and Error, Sec. 368, p. 842.

Once the verdict and judgment in the circuit court are obtained upholding annexation, the city may proceed to annex the territory despite the fact that the judgment may be appealed to this Court. An appeal does not stay a judgment, Ky. Digest, Appeal and Error, ^ddO. There is no statutory provision delaying the action of the city legislative body any longer after a judgment favorable to annexation is obtained in the circuit court. It must be remembered that the appeal provision permits the city as well as the remonstrant to appeal the judgment of the circuit court. But when the city is the victor in the remonstrance litigation in the circuit court, it is free to go ahead with its annexation proceedings regardless of the remonstrant’s appeal if the city legislative body deems it wise to do so.

Since the writ of prohibition was granted upon the false assumption that the appeal stayed the effect of the judgment in the remonstrance suit, it is obvious that Fleig was not entitled to the benefit of the writ.

The judgment is reversed.


source: Caselaw Access Project

author: C. J. WADDILL, Special Commissioner.

license: Public Domain

text:
    LOUISVILLE TRUST COMPANY, Committee for Harry W. Saunders, Incompetent, Appellant, v. Louanna W. SAUNDERS, Appellee.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.
    Edward T. Ewen, Jr., Louisville, for appellant.
    Leo T. Wolford, Louisville, for appel-lee.
   C. J. WADDILL, Special Commissioner.

The County Court of Jefferson County, Kentucky, ordered the Committee for an incompetent man to pay Fifty Dollars per month from his estate to the mother of the incompetent for her support. Upon appeal to the Circuit Court the order was upheld. The Committee has appealed to this Court.

Appellant, Louisville Trust Company, is Committee for Harry W. Saunders, an incompetent Navy Veteran of World War II now confined in the Veterans Administration Hospital, Lexington, Kentucky. His Committee holds in its hands the sum of Three Thousand Seven Hundred Thirty Five Dollars and Thirty seven cents ($3,-735.37). He will have no more income until his estate is depleted to Five Hundred Dollars ($500.00) at which time an allowance shall be made by the Veterans Administration until his estate is rebuilt to One Thousand Five Hundred Dollars ($1,500.-00) at which time his income shall terminate until it is again reduced to Five Hundred Dollars ($500.00) and the process repeated each time his estate is so reduced.

Appellee, Louanna W. Saunders, is the mother of the incompetent, Harry W. Saunders. She is now an elderly woman with no earning power. She has an estate of stocks, bonds and saving accounts valued at Sixteen Thousand Eight Hundred and Forty One Dollars and ten cents ($16,841.10), which provides an income of about Five Hundred and Thirty Three Dollars and Seventy six cents ($533.76) a year. She desires to live on the income from her estate supplemented by an allowance from her incompetent son’s estate.

The question to be decided is whether these facts authorized the County Court to order support payments made from the incompetent son’s estate to his mother under the provisions of KRS 405.080.

KRS 405.080 provides:

“Support of Indigent Parent.”
“Any adult person residing in this state and having in this state a parent who is destitute of means of subsistence and unable because of old age, infirmity or illness to support himself or herself, shall, after reasonable notice, provide that parent with necessary shelter, food, care and clothing, if he has, or is able to earn, sufficient means to do so.”

We recognize the moral obligations a son owes to his mother. Nevertheless, there is no legal justification for the order entered by the County Court. Without considering whether the incompetent is a son who has, or is able to earn, sufficient means to contribute to his mother’s support, the court holds that Mrs. Louanna W. Saunders cannot be considered a parent destitute of means of subsistence. The same standard must be applied in a proceeding of this kind as would be applied if punishment were to be imposed under KRS 405.990(5) for a violation of KRS 405.080.

A person with a substantial amount of unexpended capital cannot be classified as destitute. State v. Weldin, 8 W.W.Harr. 158, 38 Del. 158, 189 A. 586. The appellee cannot place herself in necessitous circumstances simply by electing to preserve the principal of her estate.

We respectfully recommend that the judgment of the Circuit Court be reversed and the case remanded for entry of an order setting aside and nullifying the order entered by the County Court of Jefferson County.

The opinion is approved by the Court and the judgment is reversed with directions to enter a judgment consistent therewith.


author: DAVIS, Commissioner.

text:
    Robert Bernard HIGDON et al., Appellants, v. CAMPBELL COUNTY FISCAL COURT et al., Appellees.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      Bertelsman & Bertelsman (Odis W. Bertelsman, Wm. O. Bertelsman), Newport, for appellants.
    Charles J. Schear, Newport, for appellees.
   DAVIS, Commissioner.

Robert Bernard Higdon and wife appeal the judgment of the Campbell Circuit Court which affirmed action of the Newport-Campbell County Planning and Zoning Commission. They complain that they have been denied their request to establish a “trailer park,” pursuant to action taken by the zoning board.

Appellants raise the following points as bases for their appeal: (1) The Newport-Campbell County Planning and Zoning Commission was never legally formulated, so that any purported action by it is a nullity; (2) conceding, for sake of argument, that the zoning board had legal status, this action was prosecuted under a temporary ordinance, which expired by its terms during the pendency of the case, thereby making the case moot.

We shall discuss the second point, as we deem it to be dispositive of the case. Pursuant to KRS 100.320, which became effective June 19, 1958, cities of the second class and counties containing such cities were empowered to establish a planning commission for the city and county area. By certain actions, which the appellants challenge as imperfectly done, the second class City of Newport and the Campbell County Fiscal Court undertook to establish such a planning commission. A group styled Newport-Campbell County Planning and Zoning Commission has been acting as a zoning and planning commission since September, 1958.

Appellants have owned the property which they seek to use as a trailer park since 1955. No trailer park was undertaken there by them until March, 1962. On April 3, 1961, the Campbell Fiscal Court adopted what is designated as “interim” ordinance, which, by its own terms, was to expire twelve months after passage. The purpose of the ordinance was to halt or freeze any material development, other than residential, until such time as a master plan for zoning could be established. The interim ordinance required the filing of applications by citizens seeking usage of property other than residential.

On February 26, 1962, and while the interim ordinance was in effect, the attorney for appellants filed a letter requesting permission to use their property as a trailer park. This request was denied March 7, 1962, after a hearing of protesting citizens and appellants. Despite this denial, appellants proceeded with certain extensive “bulldozing” work at an expense of some $3,-000.00, and erected a sign at the property entrance proclaiming it as “Higdon’s Mobile Village.”

Meanwhile, progress in completion of the final general zoning work had not been completed. The Campbell Fiscal Court passed a resolution March 7, 1962, undertaking to “extend” the effective application of the interim ordinance for ninety days past its expiration date of April 2, 1962.. We need not decide whether this extension of the effective date of the ordinance was proper, since at any event it must have ultimately expired on July 2, 1962, the last day of the ninety day extension. It was during this “extension” period of the interim ordinance that the instant litigation was begun.

On June 15, 1962, appellees filed suit seeking, inter alia, to enjoin the Higdon’s from using their property as a trailer park. Before the expiration of the twenty days allowed for answer under CR 12.01, the interim ordinance expired on July 2, 1962. It was not until August 6, 1962, slightly more than one month after the interim ordinance’s last possible effective date, that the Master Plan and permanent zoning ordinance was enacted.

Appellants contend that the expiration of the “interim” ordinance created a situation in which no law prohibited their trailer park activities. On this basis they assert that the case became moot. We agree. In 62 C.J.S. Municipal Corporations § 438c, p. 839, it is said:

“Where a suit is founded on an ordinance and, before it has been concluded, the ordinance is repealed by statute or ordinance which contains no clause saving rights accruing under the repealed ordinance, the suit must stop where the repeal finds it.”

Reason impels the conclusion that expiration is equivalent to repeal. “ * * * Where an act expires by its own limitations, the effect is the same as though it had been repealed at that time.” SO Am. Jur., Statutes, § 515, p. 525. The same principle applies to municipal ordinances. Cf. City of Owensboro v. Board of Trustees, 301 Ky. 113, 190 S.W.2d 1005.

What we have said makes it unnecessary to decide whether the zoning board was properly organized. However, it should be pointed out that there was no effort at any sort of zoning regulation prior to the “interim” ordinance except certain “Subdivision Regulations.” These regulations were adopted September 4, 1959. Ap-pellees contend that inasmuch as the subdivision regulations were in force during all of the pertinent period, the failure of appellants to comply with those regulations is fatal to appellants’ case. We cannot agree. There was never any effort nor application by appellants to have a “subdivision” within the purview of that term as contained in the regulations. Section 2(g) of the subdivision regulations defined a subdivision as:

“The division of a tract or parcel of land into two (2) or more lots, plots or other divisions of land, for the purpose, whether immediate or future, of transfer of ownership or building development * * * ”

It is apparent that the use as a trailer park does not fall within the scope of that definition; there is no evidence to indicate a purpose of ownership transfer or building development. Rather, every reference to appellants’ activities, including the request of appellants for a permit, is in connection with a trailer court. Such activity is defined by KRS 219.120(4) as follows:

“ ‘Trailer coach park’ or ‘Park’ means an area of land upon which two or more occupied trailer coaches are harbored, either free of charge or for revenue purposes, and shall include any building, structure, tent, vehicle, or enclosure used or intended for use as a part of the equipment of such trailer coach park; * * *.”

The judgment is reversed with directions to enter judgment consistent with this opinion.


author: MOREMEN, Judge. MONTGOMERY, Judge

text:
    Sam DAVIS et al., Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF HIGHWAYS, Appellee.
    Court of Appeals of Kentucky.
    Oct. 18, 1963.
    As Modified on Denial of Rehearing Feb. 14, 1964.

      M. D. Harris, Somerset, for appellant.
    John B. Breckinridge, Atty. Gen., William A. Lamkin, Jr., Asst. Atty. Gen., Frankfort, Phillip K. Wicker, Somerset, for appellee.
   MOREMEN, Judge.

This is a condemnation suit instituted by appellee, Commonwealth of Kentucky, to take land belonging to appellants, Sam and Sue Davis. Appellants urge that the trial court erred in arbitrarily making an assessment of the value of the land and limiting the amount of appellants’ recovery.

The nature of this case requires a rather complete statement of facts. Appellants owned a triangular piece of property of about one-half acre on the west side of U. S. Highway 27 near Tatesville. It had a frontage on U. S. 27 of approximately 450 feet. It. was 81 feet deep on the north and 8 feet deep on the south. On the land was a structure used as a grocery store, a one story frame residence of four rooms and other small functional buildings. The Commonwealth appropriated about two-fifths of one acre after which there remained of the land about one-tenth of an acre which was of little value for any purpose. Upon institution of the proceeding in the county court, three commissioners were appointed under KRS 177.083, whose report as to the property value and damages was in part as follows :

Residence $ 6000.00
Store Building 5000.00
Smoke House 600.00
Five Rod Fence 25.00

Damages to Remaining property (if any)

Damage 7000.00

Total of Property taken and Damages $18,625.00

The land owners filed no answer in the proceeding and the county court, under KRS 177.086, entered a judgment which fulfilled the requirements of that section. Let us note here that subsection (3) of the section reads: “Any appeal from such judgment by either party or both parties shall be confined solely to exceptions to the amount of compensation awai'ded by the commissioners.”

The Commonwealth filed in the circuit court a statement of appeal and an exception to the amount of the commissioners’ award. The land owners filed no cross-appeal or exceptions.

On the first trial the jury awarded the property owners the sum of $16,000. The jury failed to sign the verdict; it was set aside and a new trial granted.

Evidently during the first trial for the first time it was discovered that the commissioners in the county court had failed to assess a specific value for the land taken. The land owners filed a motion to require the county commissioners to re-assess the damage and the value of the land taken. The court overruled that motion and entered the following order:

“This cause came on for hearing on Defendants Motion to set aside swearing of jury and proceedings herein, and transfer same back to County Courts appraisers, and it appearing to the court that no exceptions were filed by Defendants in Pulaski County Court, and that Defendant accepted same and appropriated for themselves $18,625.00 the award of the viewers, and that the appraisement showing buildings taken and the amount awarded means buildings and land and Defendant here waived all objections, the motion is overruled.”

On the same day the following order was also entered:

“It appearing to the Court that the appraisement of Pulaski Co. Court Commissioners is as follows:
Residence $ 6000.00
Store Building 5000.00
Smoke House 600.00
“It appearing to the Court that no ap-praisement of the land taken was made, and that the appraisement of $6000.00 for residence taken and $5000.00 for store room taken, means the land taken with them and that smoke house was on land not taken it is ordered by the court that the sum of $11,000.00 is now fixed as appraisement of the land taken for the purposes of the State Highway Department.”

At the second trial the estimates as to value offered on behalf of the Commonwealth ranged from $6,756.75 to $7,154.00. The estimates given by witnesses on behalf of the land owners ranged from $19,500.00 to $21,235.00. The land owners offered a general instruction which was refused by the court and the court gave one that limited recovery to the land owners in the sum of not more than $11,000.00 for the land taken and damages to the remainder of the tract not to exceed $500.00, the amount claimed by the land owners in the evidence. The jury returned a verdict awarding $9,750.00 for the property and $250.00 for damages.

KRS 177.087 reads in part: “The appeal shall be tried de novo, but shall be limited to the questions which are raised in the original exceptions or statement of the grounds of appeal, or as amended.”

As pointed out earlier in this opinion, subsection (3) of'KRS 177.086 confines both parties on appeal “solely to exceptions to the amount of compensation awarded by the commissioners.”

The Commonwealth’s exception was: “The Commonwealth of Kentucky, Department of Highways, excepts to the award of the commissioners for land taken and damages to the remainder on the ground that the award is excessive.”

The sole issue before the court was whether the amount awarded was excessive for the property taken. No one had by exceptions raised a question as to the form of the commissioners’ report, or questioned whether the commissioners had failed to evaluate the land separately. The parcel of land taken was particularly described in the report, and the total value of the property and damages was assessed. In Commonwealth v. Mayo, Ky., 324 S.W.2d 802, we construed the express purpose of KRS 177.087 was to limit the issues to be tried.

The object of the appeal to the circuit court, as expressed by the exception filed, was to test the question of the value of the property taken — not to construe the meaning of the commissioners’ report. The question of ambiguity or vagueness of the report was not raised if, in fact, it could have been raised under the statute. In any event, it was not within the province of the circuit court to interpret the unchallenged items of “residence” and “house” to include all of the land taken and limit recovery to those items, plus damages to the remaining strip of land.

Upon a retrial of the case the court will instruct the jury pursuant to the principles announced in Commonwealth, Department of Highways v. Sherrod, Ky., 367 S.W.2d 844, but will omit reference to any permissible maximum recovery. The trial court shall not, however, enter any judgment in excess of the aggregate amount allowed by the county court commissioners.

The judgment is reversed for proceedings consistent with this opinion.

MONTGOMERY, Judge

(dissenting).

I respectfully dissent from the majority opinion because I do not feel that the appellants showed that they were prejudiced in any way by the ruling of the trial judge on the commissioners’ report.

CR 61.01 provides:

“No error in either the admission or the exclusion of evidence and-no error or defect in any ruling or. order or in anything done or omitted by the court of by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”

CR 61.02 provides that a palpable error which affects the substantial rights of a party may be considered although insufficiently raised or preserved.

The point is that unless the claimed error “appears * * * inconsistent with substantial justice” it is not reversible error. Assuming that this Court is right, which I doubt seriously, in saying that the trial court was in error in construing the commissioners’ report and limiting the appellants’ right to recovery at $11,000 for the land taken and at $500 for damages to the remainder of the tract, no error inconsistent with substantial justice has been shown.

The limitation on the recovery was contained in the instructions given after appellants had introduced their proof as to value and damages. The jury’s award of $9,750 for the property and $250 for damages was well under the limitation, which indicates that the jury was not restricted by the limitation. Had the jury awarded the allowable limit then there would have been a proper basis for contending that the award was limited by the instruction and the giving of it was consequently prejudicial.

CR 61.01 and 61.02 make it plain that only error inconsistent with substantial justice is to be considered as prejudicial error. Under this record the assumed error was not shown to be so prejudicial.


author: WILLIAMS, Judge.

text:
    F. L. BABB, John Harris, A. F. Buckingham, Carl Osborne and Leon Gibson, Appellants, v. Anne MOORE and the McCracken County Board of Education, Appellees.
    Court of Appeals of Kentucky.
    Jan. 17, 1964.

      Roy N. Vance, David R. Reed, Paducah, for appellants.
    Charles A. Williams, Paducah, for appel-lees.
   WILLIAMS, Judge.

This court heretofore decided that the appellee, Anne Moore, had attained a continuing service status by operation of the teachers’ tenure law, KRS 161.740. Moore v. Babb, Ky., 343 S.W.2d 373. Upon remand to the McCracken Circuit Court it was adjudged that Mrs. Moore had been wrongfully discharged and was entitled to damages for breach of contract. The individual members, as well as the county school board, were held liable.

The single question on appeal is whether school board members may be personally liable for wrongfully discharging a teacher in good faith execution of a ministerial duty, if school board funds are unexpended and available to pay damages. The individual school board members contend they are not personally liable because they acted in good faith and upon an erroneous interpretation of the law by the Attorney General.

Under the circumstances pertaining here, the circuit court correctly determined that both the school board and the individual members thereof were liable. In fact, in Moore v. Babb, supra, we said:

“The members of a county board of education who deprive a teacher of a contract to which she has acquired the right under the terms of the statutes may be held personally liable in damages for the teacher’s loss of salary in the absence of estoppel or other bar and upon proper proof. The basis of personal liability is the failure to perform a ministerial duty, and the board is exempt from liability where it has paid another teacher placed in the position. Cottongim v. Stewart, 283 Ky. 615, 142 S.W.2d 171; Duff v. Chaney, 291 Ky. 308, 164 S.W.2d 483; Smith v. Beverly, 314 Ky. 651, 236 S.W.2d 914; Cooksey v. Board of Education of Fairview Ind. School Dist., Ky., 316 S.W.2d 70.”

A general statement of the rule is found in 43 Am.Jur., Public Officers, Sec. 285, “It is a general rule that good faith and absence of malice constitute no defense in an action to hold a ministerial officer liable for damages caused by his nonfeasances and misfeasances, for an officer is under a constant obligation to discharge the duties of his office, and it is not necessary to show that his failure to act was wilful or malicious.”

In each of the cases cited in the excerpt from Moore v. Babb, supra, school funds which might have been used to pay discharged school employees apparently had been expended. It is well established that public funds may not be expended twice for the same purpose. Amburgey v. Draughn, 288 Ky. 128, 155 S.W.2d 740. Here the school board had set aside sufficient funds to pay Mrs. Moore and had employed no one to replace her. But liability is based on the-.wrongful discharge of a ministerial duty rather than a failure to appropriate sufficient funds to pay damages to a discharged school employee. It may be stated that both the school board and the individual members may be liable for the wrongful exercise of a ministerial duty, but the school board liability is limited to any sums unexpended for the position of the wronged employee. Bronaugh v. Murray, 294 Ky. 715, 172 S.W.2d 591.

The question of primary liability was not decided by the lower court. If it were to be sent back for a determination of that point, the delay occasioned by another appeal would be unreasonable. Therefore, we feel the issue should be decided now. It is obvious the board members acted in good faith and relied on an interpretation of a statute by the chief law officer of the Commonwealth, the Attorney General. When the board’s action was questioned, it set aside sufficient funds to cover any damages incurred. Those funds are available and should be used to satisfy the damages incurred.

The judgment is affirmed.


author: DOERNER, Commissioner. ’

text:
    CITY OF ST. LOUIS, Plaintiff-Appellant, v. CAPITOL VENDING COMPANY, Defendant-Respondent.
    No. 31223.
    St. Louis Court of Appeals. Missouri.
    Jan. 21, 1964.
    Motion for Rehearing or to Transfer to Supreme Court Denied Feb. 12, 1964.
    Thomas J. Neenan, John J. Fitzgibbon, DeWitte T. Lawson, Jr., Eugene P. Freeman, Harry J. Dodson, St. Louis, for plaintiff-appellant.
    Morris A. Shenker, Lawrence J. Lee; Emanuel Shapiro, St. Louis, for defendant-respondent.
   DOERNER, Commissioner. ’

Pursuant to Civil Rule 82.13, V.A.M.R., the parties filed a statement of the case, approved by the trial court, as the transcript on appeal. It appears from the statement that on September 13, 1960, an information was filed in the Municipal Court of St. Louis wherein Capitol Vending Company was charged with having sold or offered for sale packaged cigarettes without having affixed thereto the required City cigarette tax stamp, in violation of Sections 64 and 73 of Ordinance 46432. Defendant through its attorney pleaded not guilty, was tried and fined, and duly appealed to the St. Louis Court of Criminal Correction.

In that court defendant by its attorney entered a plea of not guilty, and twice stood trial. The first ended when a mistrial was declared, and the second resulted in a verdict of guilty, entered on May 9, 1961. This verdict was subsequently set aside by mutual consent. Thereafter, on January 17, 1962, defendant filed a motion to dismiss the information for the reason that, “ * * * the Capital Vending Co. is a fictitious name registered with the State of Missouri by the Central States Tobacco Co., Inc., and as such is not an entity whereby it can sue or be sued and thus is not a party in interest in the above-entitled cause.” It is further related in the statement that at the hearing on the motion the court heard “uncontroverted evidence” that Capitol Vending Company is a fictitious name registered with the State by Central States Tobacco Company, Incorporated, and that it received in evidence a copy of the registration certified by the Secretary of State. The attorney for the City, according to the statement, “then and there made a motion requesting the Court to enter the name of Central States Tobacco Company in the minutes of the Court and to conduct the trial against said Central States Tobacco Company, Incorporated, pursuant to Supreme Court Rule 24.10.” So far as shown by the statement of the case, the trial court apparently did not directly rule on the City’s motion, but in effect it did so adversely by entering an order and judgment sustaining defendant’s motion to dismiss and discharging it.

In the act creating the St. Louis Court of Criminal Correction it is provided that the proceedings of that court shall be governed by the laws regulating proceedings and practice in criminal cases, so far as the same may be applicable. Sec. 479.180, RSMo 1959, V.A.M.S.; City of St. Louis v. Vetter, Mo.App., 293 S.W.2d 140. Rule 24.10 of the Rules of Criminal Procedure reads:

“If the indictment or information shall contain the wrong name of the defendant, he shall be proceeded against by such name unless he declare his true name before pleading. If such true rame is given, it shall be entered in the minutes of the court, and the trial and all other proceedings shall be had against the defendant under that name, as if he had been indicted or informed against by his true name.”

We note in passing that the Rules of Practice and Procedure in Municipal Courts contains a similar provision. See Rule 37.27. The source from which Rule 24.10 appears to have been derived was Sec. 545.-230, RSMo 1949, V.A.M.S.

The sole ground of defendant’s motion to dismiss was that “Capitol Vending Co.” was a fictitious name registered by Central States Tobacco Co., Inc., in accordance with Section 417.210, RSMo 1959, V.A.M.S. The certified copy of the registration which it introduced in evidence showed that Central States was the only party owning an interest in Capitol Vending. By its motion and its evidence, it conceded and proved that Capitol Vending was the alter ego of Central States, and that they were one and the same legal entity. There was no claim by Capitol Vending that it was not the person indicted or informed against, as in State v. Duncan, 336 Mo. 600, 80 S.W.2d 147. Hence, the only effect of its motion was to bring to the attention of the court its correct corporate name. Since defendant had pleaded not guilty in the St. Louis Court of Criminal Correction and had twice stood trial in that court there is grave doubt whether its motion was timely filed. For Rule 24.10 provides that if the information contains the wrong name of the defendant he must declare his true name before pleading or, failing that, be proceeded against by the name in the information. State v. Linton, 283 Mo. 1, 222 S.W. 847, 848.

In any event the conclusion is inescapable that the court erred in discharging defendant. At best its motion amounted to no more than a claim of misnomer, which is not a grounds for discharge. State v. Schricker, 29 Mo. 265. Assuming that defendant’s motion was timely filed, the court, as requested by the City and as required by Rule 24.10, should have entered Central States’ name in the minutes of the court and the action should have proceeded against it as if it had been informed against by that name. State v. Schricker, supra; State v. Linton, supra; State v. Duncan, supra.

In its brief defendant attempts to raise other grounds, not contained in its motion, to justify the court’s action in discharging it. The first is that the information is vague and indefinite. If so, the defendant should have filed a motion for a bill of particulars within the time designated in Rule 24.03. Having failed to do so it waived the objection. Rule 25.06; State v. Bright, Mo., 269 S.W.2d 615. Defendant also claims that the information is duplicitous in that the charge is that it did “sell or offer for sale” packaged cigarettes without affixing the required stamps; and that two separate criminal acts under the ordinance are thereby charged disjunctively. We are not unaware of the rule that where a statute or an ordinance describes acts or offenses disjunctively, the indictment or information should charge them conjunc-tively, if they are not repugnant. State v. Miller, 329 Mo. 855, 46 S.W.2d 541; State v. Bilyeu, Mo., 295 S.W. 104; State v. King, Mo.App., 285 S.W. 794. However, the weakness in defendant’s position is that the ordinance in question is not included in the statement of the case and we cannot take judicial notice of it. City of Tarkio v. Loyd, 179 Mo. 600, 78 S.W. 797; City of St. Louis v. Vetter, supra. For aught that appears before us one or the other alternative may not be a violation of the ordinance.

It will undoubtedly clarify matters if all further proceedings are 'conducted in the defendant’s correct corporate name. Accordingly, the judgment should be reversed1 and the cause be remanded with directions to enter the defendant’s name, Central States Tobacco Co., Incorporated, in the minutes of the court and to conduct all further proceedings under that name as if it had been informed against by that name. The Commissioner so recommends.

PER CURIAM:

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

Accordingly, judgment is reversed and the cause remanded with directions to enter defendant’s name, Central States Tobacco Co., Incorporated,, in the minutes of the court and all further proceedings be conducted under that name as if it had been informed against by that name.

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


author: WOLFE, Judge.

text:
    Biaglo ERRANTE, (Claimant) Appellant, v. FISHER BODY DIVISION, GENERAL MOTORS CORPORATION, (Defendant) Respondent.
    No. 31503.
    St. Louis Court of Appeals. Missouri.
    Jan. 21, 1964.

      Michael J. Ebeling, St. Louis, for appellant.
    Albert I. Graff, Malcolm I. Frank, St. Louis, for respondent.
   WOLFE, Judge.

This is an appeal from a judgment of the Circuit Court affirming a final award by the Industrial Commission of Missouri denying compensation to the claimant-appellant.

The claimant stated in his claim for compensation that he was injured “on company premises, going up stairs to commence work, when employee’s attention was attracted by a loud noise causing him to turn and in this way a twist occurred which cracked through a disc in his back requiring many examinations and treatment, including surgery and traction.” The employer in its answer denied that the claimant suffered an accident within the meaning of the Workmen’s Compensation Act.

It was admitted upon trial that the claimant was an employee, as alleged, and that the Fisher Body Division of General Motors Corporation was under the provisions of the Workmen’s Compensation Law. It was also admitted that the employer had notice of the alleged accident. The time lost, the extent of disability, and the rate of pay were also admitted. The only issue remaining for trial was whether or not the claimant sustained an accidental injury arising out of and in the course of his employment, and if so, what medical expenses should be allowed to him.

The claimant worked in a shift that started around four o’clock in the afternoon and ended near midnight. He testified that on March 21, 1961, he had entered the employer’s premises and was going up some concrete steps to the working area. He said that he “heard a real loud noise and turn around all at once.” He further said, “I jerked my back, and I couldn’t move myself no more. I just don’t know what happened to my back.”

He testified that he went to the work line, and when the foreman came up to him, he said: “I don’t think I can make it. * * * I think I hurt my back on the way up to the step.” He then asked for a pass to go down to the nurse and was given one. He stated to the nurse: “The muscles in my back have been sore for about 2 weeks, but tonight when I came in and was going up the steps my back started hurting worse. It is like a pulling, cramping pain in my back and goes down my Rt. leg.” He was given some heat treatment by the nurse and returned to work. He worked throughout his shift, but his back continued to hurt him and he later went to a hospital, where it was found that he had a herniated lumbar disc. He was later operated on for this.

By agreement of counsel a deposition of the claimant was introduced in evidence. In the deposition the claimant was asked what happened as he was going up the steps. He answered: “Well, I was already about half way, I heard someone holler loud. I don’t know who was hollering, and I turned' around and looked and about the same time, I heard something snap on my back and that was the end of it, and when I was walking up to the job.” He was then asked: “You say you were about half way up the steps,” and he answered, “Yes, and turned.” He was then asked if someone had called his name, and he answered: “No, no one called me at all, I just happened to turn around and look.” The questioning continued. “Question: Well, do you know what they said when they hollered? Answer: No. Question: They weren’t hollering — go ahead? Answer: Just happened somebody hollered and I turned around and that was the end of it.”

Upon the foregoing evidence the Referee for the Division of Workmen’s Compensation made the following finding :

“I find from the evidence that the injury which the employee herein sustained to his back resulted from his turning around to look when he heard someone behind him holler, as related in his deposition taken on December 18, 1961, and as such did not constitute an accident within the meaning of the Missouri Workmen’s Compensation Law.
“I find specifically that his turning was not a sudden reaction to a loud frightening noise to his rear. Therefore, compensation and reimbursement for medical treatment must be and the same is hereby denied.”

This finding was affirmed by the Industrial Commission on appeal.

The contention of the appellant is that there was a finding that the injury was the “result of a spontaneous reaction,” and that therefore, as a matter of law, the final award of the Industrial Commission was erroneous. It appears quite obvious from the finding above quoted that the point the appellant attempts to raise is not based upon the record. The finding of the Referee, affirmed by the Commission, is exactly the converse of that which the appellant says it was. It was found that the turning was not a sudden reaction, but that the claimant simply turned around to look when he heard' someone holler. ■ ‘ .

Reviews of this nature are gov-, erned by the rule "that neither the Circuit Court nor the .Appellate Courts may substitute their judgment for that of the Commission. We are Obliged, under the'-Consti-f tution of Missouri of 1945, Article 5, § 22, V.A.M.S., only to determine if the decision is authorized by law and if the findings are supported by competent and substantial evidence upon the whole record. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647; Thacker v. Massman Const. Co., Mo.Sup., 247 S.W.2d 623.

An injury in and of itself is not an accident within the meaning of the Workmen’s Compensation Law. State ex rel. Hussman-Ligonier Co. et al. v. Hughes et al., 348 Mo. 319, 153 S.W.2d 40; Smith v. General Motors Corporation, Mo.Sup., 189 S.W.2d 259.

The evidence fully supports the finding that the claimant simply turned to see who was hollering behind him, and this was voluntary and not accidental.

Therefore, the judgment of the Circuit Court affirming the award of the Commission is by this Court affirmed.

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


text:
    B- E. G-, (Plaintiff) Respondent, v. G- R. G-, (Defendant) Appellant.
    No. 31445.
    St. Louis Court of Appeals. Missouri.
    Jan. 21, 1964.
    Charles E. Wells, St. Louis, for appellant.
    Claude W. McElwee, St. Louis, for respondent.
   WOLFE, Judge.

This is an action for divorce brought by B- E. G- against her husband, G- R. G-. The defendant filed a cross-bill, and upon trial there was a finding and decree for the plaintiff on her petition and against the defendant on his cross-bill. The defendant prosecutes this appeal.

The plaintiff’s amended petition alleges that she was lawfully married to the defendant on May 28, 1949, and that they lived together as husband and wife up to February 11, 1961. She makes the customary allegations that she treated her husband with' kindness and affection, and that her husband offered her indignities that made her condition as his wife intolerable.

The indignities pleaded were that the defendant quarreled and nagged; stated that he no longer loved her; used foul language toward her; was gloomy and moody; accused her of associating with other men; that he had a violent temper, and that he pushed, struck, kicked her and threatened her with a knife. She alleged that he tore the telephone from the wall so that the police could not be called. She further alleged that he had been cold and abusive toward her in the last two years of their married life. It was also alleged that the defendant denied being the father of her last-born' child, born after the institution of this suit. The petition alleges that three children were born of the marriage, the youngest being a boy who was born October 14, 1961.

The defendant in his answer to the petition admitted the marriage and the paternity of the two older children. He denied all other allegations except that he had charged the plaintiff with associating with other men. He admitted charging her with such association, but averred that the charge was true. He denied that he was the father of the youngest child. In the cross-bill of the defendant he alleged that he lived with the plaintiff until February 11, 1961, but stated that he had no sexual relations with her after November of 1960. He charged her with associating with one E-L. S-. He also alleged that the plaintiff refused to have sexual relations with him after the birth of their second child. He alleged that the plaintiff told him that she wished she had never married him, and that she had threatened him. In the cross-bill the defendant asked for divorce and custody of the two older children.

It was upon the issues thus presented that a trial was had. Plaintiff’s evidence was to the effect that for the past five years the defendant often used violent and profane language toward her. She testified that on seven or eight occasions in the two years prior to the trial her husband had beaten or struck her. She said that on two or three occasions the police had been called. She testified that her husband had threatened her with a steak knife on New Year’s Eve of 1960. She said that he picked up the steak knife in the presence of her uncle and children and said, “I should kill you right now.” She said that during the last three years of her married life he had called her a slut and a whore.

The plaintiff was asked, on direct examination, if she knew the Mr. S-, with whom her husband had charged her with associating. She said that she met him when she started patronizing a filling station where he worked. She said that he had driven her home from the filling station at times and then took her car back for servicing. She had called him to drive her with one of her children to the doctor’s when she had no car.

She and her uncle wanted to buy a Cadillac, and upon the recommendation of S-they called upon a salesman who sold them a Cadillac. She traded a Nash Rambler in on the Cadillac. Title to the Nash Rambler was in the names of plaintiff and defendant, and she signed her husband’s name to the certificate of title to make the necessary transfer at the time she acquired the Cadillac.

The plaintiff had some farm property in Indiana, the value of which she estimated at $100,000, and from which she received an income of sizeable proportions annually. She stated that on December 10, 1960 she wanted to take a trip to the farm, and that she was having some trouble with the accelerator pedal on the Cadillac. She arranged with S-to drive the Cadillac to Effingham, Illinois, to see what was the matter with the accelerator. She said that she followed him later in S-’s Oldsmobile and picked up the Cadillac in Ef-fingham.

S-arrived at a motel in Effingham on December 9, according to the motel register, and his own admission in depositions taken. He arrived with a woman and registered as “Mr. and Mrs. E-S-.” The registration bore the notation that he was driving, a Cadillac bearing a license number which was the same as the license number on plaintiff’s Cadillac. When S-- was asked who the “Mrs. S-” was that had registered with him, he said that he did not remember. He also said that so far as he knew, there was nothing wrong with the accelerator on the Cadillac and that he had not heard anything about that.

Mrs. G-’s story of the episode is ¡that she went to Effingham later driving S-’s Oldsmobile and changed cars there and drove on to her farm.. She said that she left St. Louis in S-’s Oldsmobile at four thirty o’clock in the morning of. December 10. She had left her home on the 9th in the afternoon, and .went to a friend’s house at 8:30 p. m. and sat and talked until 4:30 a. m., at which time she left. The friend corroborated her statement as to the time of her departure and said that plaintiff was driving an Oldsmobile.

Plaintiff was asked about a trip to S-’s home, which was then with his parents in Mayfield, Kentucky. She testified that she went to visit his parents there. She said that she met them through an aunt, whom she had met at the filling station in St. Louis County where S- worked. She was asked how long her visit extended, and she said she did not know how long it was. She could not say whether it was a week, more or less. She was at first equivocal as to whether or not S-was present at his parents’ home at the time of her visit there, but later said that he was there at the time and she did not know how many times she had seen him in Kentucky.

She took the trip to Kentucky in an Oldsmobile station wagon that she had purchased a short time before and kept in Indiana. She said that when she returned from her trip, she left the car in East St. Louis by a parking meter with the keys locked in it. She testified that she had made arrangements with someone of the S-’s family to pick it up and drive it back to Mayfield, and that so far as she knew the car was still with them in May-field. She said that she wanted the S — - family to use it.

The defendant’s denial of the mistreatment of which his wife complained was rather categorical. His explanation of the episode in which, according to plaintiff, he threatened her with a knife was more detailed. He said that he had not threatened her with a knife, but that they had quarreled because her uncle was visiting them. He did not want her uncle in the home with the children because at the time he was on parole from a penitentiary sentence. The defendant produced a valentine and ,a Christmas card which he said were sent to his wife by, S-> , The' wife had previously denied having received- them, and S- in his deposition denied knowing anything about"them.

There was evidence that S- had charged over $100 for gasoline on a cred7 it card issued by the gasoline company to the defendant. Mrs. G- said that it: was given to S-by her husband when. the two were considering opening a filling station. G-denied this and said that his wife had made application for the card in question, and that he did not know about - it or the charge made until he received a ■ bill. S-admitted charging to G-, gasoline for private trips that he had made, but said that he later gave Mrs. G-a ' check made out to cash for part of the gasoline so purchased.

A neighbor woman with whom Mrs. G-had been friendly testified on behalf of defendant that Mrs. G- told her she was going with a Mr. S-. Mrs. G-did not take the stand in rebuttal or deny that she had made the statement.

The court ordered a blood test of G — :- and of the last-born child. The test and report showed that a person having blood grouping of G- could have been the father of the child, but it specifically stated, “These data of course cannot be used to prove paternity.” There was additional evidence, but it added very little to the substance of the facts which we have set out above.

As stated, the trial court awarded Mrs. G- a divorce. Our review of the court’s judgment is governed by Section 510.310, RSMo 1959, V.A.M.S., which requires us to review “both the law and the evidence-as in suits of an equitable nature.” This section also requires us to give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Mayor v. Mayor, Mo.App., 351 S.W.2d 810.

The court became concerned with the question of the paternity of the child last born to the plaintiff. It concluded that the evidence did not overcome the presumption of legitimacy of children born in wedlock. The law as it relates to this is clearly stated in F- v. F-, Mo.App., 333 S.W.2d 320.

Whether or not the court properly ruled upon that issue need not here be considered, for the plaintiff had the burden of proving that she was the innocent and injured party. This “requirement is neither more nor less than an application of the equitable doctrine of 'clean hands’ to a divorce action.” Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483. The plaintiff did not meet this burden. By her own testimony she committed indignities that were harmful to the family relationship by her dalliance with S-, if it could be said it was nothing more than that. Crowley v. Crowley, Mo.App., 360 S.W.2d 293; Easton v. Easton, Mo.App., 361 S.W.2d 166.

The court apparently believed the plaintiff’s evidence as to the alleged indignities committed by the defendant, and was therefore not in error in refusing to grant the defendant a divorce. It erred, however, in granting a divorce to plaintiff.

The plaintiff has filed in this court a motion to modify an alimony award made to her. This motion is overruled.

Both parties are denied a divorce, and the cause is reversed, with directions to enter a decree for the defendant on the plaintiff’s petition, and for the plaintiff on the defendant’s cross-bill.

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


author: ANDERSON, Judge.

text:
    Mattie LANE, (Plaintiff) Respondent, v. SUPREME CAB COMPANY, a Corporation, and Azonia Smith, Defendants, Supreme Cab Company, a Corporation, (Defendant) Appellant.
    No. 31319.
    St. Louis Court of Appeals. Missouri.
    Jan. 21, 1964.

      Morris A. Shenker, R. J. Slater and Frank B. Green, St. Louis, for appellant.
    William P. Byrne, and Librach, Heller, Byrne & Weber, St. Louis, for respondent.
   ANDERSON, Judge.

This is a negligence action wherein plaintiff, Mattie Lane, seeks to recover damages for personal injuries, alleged to have been sustained when an automobile driven by defendant, Azonia Smith, ran into the rear of a taxicab owned and operated by defendant, Supreme Cab Company, in which she was a passenger. The trial resulted in a verdict and judgment in favor of plaintiff against both defendants in the sum of $1,-750.00. From this judgment defendant Supreme Cab Company has appealed.

The accident occurred on November 26, 1959, at approximately 8:30 P.M. in the forty-three hundred block of Finney Avenue, an east and west street, in the City of St. Louis. Plaintiff had been visiting her cousin who lived at 4363 Finney Avenue, which was on the north side of the street. When she left her cousin’s home, her cousin accompanied her to the north sidewalk in front of said premises. At that time there was a taxicab owned and being operated by an employee of the defendant Cab Company, proceeding eastwardly on Finney Avenue. Her cousin hailed this taxicab by holding up his hand. The taxicab stopped directly across the street from where plaintiff and her cousin were at the time. It was stopped in the eastbound traffic lane. There was no other eastbound traffic on Finney Avenue at the time, nor was there, according to plaintiff’s testimony, any westbound traffic. There were automobiles parked at the south curb, but alongside the cab when it stopped, there was an empty space at the curb where about two cars could be parked. It was raining, snowing, and sleeting at the time, and the streets were wet and slick. Plaintiff testified that the front lights of the taxicab were on at the time, but she did not know whether its dome light was turned on. Plaintiff walked across the street, passed in front of the taxicab, and g'ot into the taxicab. As she started across the street she had no difficulty in seeing the taxicab. The taxicab was stopped opposite a street light located in front of 4363 Finney Avenue. The cab was in the middle of the street. At no time did the operator of the cab drive the cab to the curb for plaintiff to get into it. She was just sitting down in the rear seat of the taxicab when it was hit in the rear by the automobile driven by defendant Smith. The impact of the collision caused plaintiff to fall forward and then backward.

Plaintiff called as her witness, defendant, Azonia Smith. He was driving a 1957 Ford automobile and with him in the car were his wife, his cousin and his cousin’s wife. He testified that his car was in good mechanical condition, the headlights thereon were in good condition and were on at the time of the collision; the brakes on the car were also in good condition as were the steering apparatus and tires.

Prior to the collision defendant Smith had been traveling south on Newstead Avenue. When he arrived at Finney Avenue, he made a left turn and proceeded east on Finney Avenue on the right side of the street. There was, according to his testimony, westbound traffic on Finney Avenue at the time. He stated that after he made the turn on to Finney, and had about straightened out the car, it ran into the back end of the taxicab. He further testified he could not see very far to the east on Finney Avenue, because of the rain and snow; that he di.d not see the taxicab prior to the collision. At another point in his testimony he said he saw the taxicab when he was 4 .or 5 car lengths from it; and again stated he guessed he was a car-length and a half away from the taxicab when his cousin warned him to look out for it. The police officer who appeared at the scene of the accident shortly after it occurred, testified that Smith told him that he first noticed danger when he was approximately twenty feet away, and that he was then traveling about twenty miles per hour. The street at the place of collision is fairly level. Smith further testified that there was nothing to obstruct his view toward the east, but the westbound traffic and the water on the windshield. The windshield wipers on his car were working at the time. He was looking straight forward. His eyesight was good. He stated that the maximum speed he attained as he proceeded eastwardly on Finney Avenue was ten to fifteen miles per hour. ' The streets were wet and slick. While thus proceeding his'-cousin, who was in the rear seat, told him to watch the cab. He then applied the brakes on his car and slid into the taxicab. His car went in a straight line from the time he applied the brakes until it collided with the taxicab. He could not swerve to the north on account of the westbound traffic, or south because of the cars parked at the south curb.

Defendant Smith further testified that he saw the lights on the cab. Later he testified he did not see any lights before he struck the cab; that the cab was double parked and had no lights on it; that after the accident when they pushed the cab to the curb he saw tail lights; that he did not see any automobile with or without tail lights at any time before he struck the taxicab; that he saw no tail lights on top of the cab; that he told the police officer, at the scene of the accident, there were no lights on the cab; that there were lights on the cab after the accident when it was moved to the curb; that the left tail light was on, but the other one was not on when he hit it.

After the collision the taxicab was pushed down the street and parked against the curb. The damage resulting from the collision was to the front end of Smith’s car, and the rear end of the taxicab.

Plaintiff introduced in evidence certain portions of Chapter 69 of the Ordinances of the City of St. Louis. They read as follows:

Ch. 69, Art. II, Sec. 18, par. 7:
“It shall be unlawful for the driver of any vehicle to double park the vehicle, whether for loading or unloading purpose or any other purpose or shall wil-fully obstruct the flow of traffic upon the street”.
Ch. 69, Art. VI, Sec. 43:
“It shall be unlawful for a driver to stop, stand or park in any of the following places, except when necessary temporarily to avoid conflict with other traffic or in compliance with the directions of a police officer or official traffic signal, sign or device, no person shall park or cause to be parked a vehicle:
“(a) Other than parallel to the right curb of a two-way street, and to the left curb of a one-way street, except where angle parking is provided. When cars are parked parallel to the curb the curb side of a car should not be more than six inches from the curb.
“No double parking:'
“(1) on the roadway side of any stopped or parked vehicle”.

The negligence charged against defendant, Supreme Cab Company was as follows:

“IV.
“Defendant, Supreme Cab Company, a corporation negligently and carelessly failed and omitted to provide plaintiff with a safe place to enter said taxicab.
“V.
“Defendant, Supreme Cab Company, a corporation negligently and carelessly failed and omitted to pull its said taxicab into the curb in order to allow plaintiff to enter said taxicab when said defendant knew or by the exercise of' ordinary care should have known that automobile‘(s) .might be traveling behind said taxicab and strike said taxicab in a stopped position.
“VI.
“Defendant, Supreme Cab Company, a corporation, negligently and carelessly stopped its said taxicab in the middle of said street and blocked the lanes of traffic thereon and failed to have tail lights burning on said taxicab, all in violation of the Statutes of the State of Missouri in such case made and provided”.

It is urged that plaintiff failed to make a case for the jury both as to the alleged negligence submitted and on the issue of proximate cause.

Negligence charged against appellant was submitted by Instruction Number One. It authorized a finding for plaintiff, if the jury found that the driver of the taxicab was negligent in stopping the taxicab in the lane of traffic next to the parking lane, when he knew or should have known that it might be struck by automobiles proceeding eastwardly along Finney Avenue, and by failing to provide plaintiff with a safe place to enter said taxicab by pulling said taxicab into the curb. There was also a requirement that the jury find, as a predicate of recovery, that plaintiff suffered injuries and that said injuries were a direct and proximate result of said negligence.

In support of its contention that plaintiff did not make a submissible case on the issue of negligence, it is urged that there is no substantial evidence from which the jury could find that appellant’s driver knew, or in the exercise of ordinary care should have known, that the taxicab might be struck by other eastbound automobiles. Appellant argues in support of this contention that there was no evidence that the view of the taxicab was obstructed, but, on the contrary, there was evidence that it was plainly visible before the collision. Appellant points to the testimony of plaintiff, who saw the taxicab from across the street; that it was stopped opposite a street light; that it was stopped in the middle of the street where one would be expected to look for automobiles; and that a passenger in Smith’s automobile could, and did see the taxicab; that the taxicab did not make an abrupt stop, nor was the cab suddenly moved into the path of moving traffic, but had been stopped for a considerable period of time before the collision. Under the foregoing facts appellant contends that there was no duty on the part of appellant to have knowledge of the peril of collision, or to anticipate that one was likely to occur; hence no negligence was shown.

In considering facts relevant to the matter before us appellant has overlooked certain other facts shown by the record. The collision in this case occurred at night. It was raining and snowing at the time. The streets were wet and slippery. Appellant’s cab was double parked in. the eastbound traffic lane, which was a violation of law, a situation other drivers had a right to assume did not exist. The cab was parked only a short distance east of New-stead Avenue, and would not likely, under ordinary conditions, be seen by motorists turning eastwardly from Newstead on to Finney until the turn was completed. There was water on the windshield of Smith’s car as he made the turn and proceeded east on Finney. With these additional facts we believe that it could be reasonably said that one situated, as was the operator of appellant’s taxicab, should have anticipated that there was danger of collision, and for that reason the court did not err in overruling appellant’s motion for a directed verdict. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820.

Appellant contends that there was no substantial evidence on the issue of proximate cause, and, for that reason, the court erred in overruling appellant’s motion for a directed verdict.

Under the foregoing assignment it is urged that the testimony of plaintiff’s witness, Smith, with reference to the presence of lights on the taxicab is so confusing and contradictory that it cannot be considered substantial evidence, and for that reason no causal connection is shown between the double parking and the collision.

It is difficult to follow appellant’s line of reasoning under this point. The negligence charged and submitted was that the driver of appellant’s taxicab was negligent in stopping the taxicab in the lane of traffic when he knew or should have known that it might be struck by other automobiles traveling in said traffic lane, and failing to provide plaintiff with a safe place to enter the taxicab by pulling said taxicab to the curb. There was no charge that the taxicab was being operated without lights. -If that was the issue there perhaps would be merit to appellant’s contention. Smith’s testimony as to the matter of lights was so contradictory that it cannot be considered substantial. But the issue of proximate cause in the case submitted does not rest on his testimony with reference to lights. It is shown by the other facts in evidence which we have heretofore detailed. In our judgment, those facts are ample to support a finding that the negligence relied on was the proximate cause of plaintiff’s injuries. Dickerson v. St. Louis Public Service Co., 365 Mo. 738, 286 S.W.2d 820.

Appellant next complains of Instruction No. One, plaintiff’s verdict-directing instruction. The alleged error relied upon was the use of the word “might” in that part of the instruction which required a finding “that the driver of the defendant, Supreme Cab Co., in stopping his said taxicab in the lane of traffic next to the parking lane, knew or should have known, that said taxicab might be struck by automobiles proceeding eastwardly along Finney Avenue.” It is urged that by the use of the word “might” the instruction authorized a finding that said defendant was negligent if its driver could foresee the “mere possibility” that others might negligently or otherwise collide with the taxicab, and, therefore, made said defendant an insurer of plaintiff’s safety.

It is true that a defendant cannot be held to be negligent for failing to anticipate a “mere” or “remote” possibility of danger to others from a situation created by him. Berry v. Emery, Bird, Thayer Dry Goods Co., et al., 357 Mo. 808, 211 S.W.2d 35, 41. However, we do not believe that Instruction Number One by the use of the word “might” authorized such a finding. Counsel for neither party has cited any case directly in point on the proposition. However, this court through its own research has found several well considered opinions on the subject. They are Hannon v. Myrick, 118 Vt. 428, 111 A.2d 729; Liska v. Chicago Rys. Co., et al, 318 Ill. 570, 149 N.E. 469. 475; Nelson v. Boston & M. Consol. Copper & Silver Mining Co., 35 Mont. 223, 88 P. 785, 786; Louisville Ry. Co. v. Wellington, 137 Ky. 719, 126 S.W. 370; Scott et al v. Shine (Tex.Civ.App.) 194 S.W. 964, l. c. 969.

In the opinion in Liska v. Chicago Rys. Co., supra (149 N.E., l. c. 475) which was an action for damages for personal injuries, we find the following:

“Complaint is * * * made * * * of the word ‘might’ in the fifth instruction, which states that it was the duty of the motorman to exercise ordinary care to keep a proper lookout for the safety of persons, including children, who might lawfully attempt to cross the track. These instructions, it is asserted, required the motorman to anticipate mere possibilities; one, that a child would rush from the curb to the track, and the other, that a person or child in a position of safety might change to one of danger. Neither instruction imposed upon the motorman the duty to anticipate a possibility. Both required merely the exercise of ordinary care by the motorman to ascertain the child’s evident or apparent purpose. When the whole of each of these instructions is read, the jury could not have been misled.”

Louisville Ry. Co. v. Wellington, supra, was an action for injuries sustained by a passenger on one of defendant’s cars as a result of an assault by other passengers. The court gave an instruction which authorized a verdict for plaintiff, if they found, among other things, that the conduct of the passengers prior to the assault was such as would induce the conductor “to have anticipated that such assault might be made.” On appeal the error relied on was the use of the word “might” in said instruction instead of the word “would.” In holding there was no error, the court (126 S.W. l. c. 371) said:

“The error relied upon is the use of the word ‘might’ instead of the word ‘would.’ The rule applicable to such cases is pointed out by this court in Kinney v. Louisville & Nashville R. R. Co., 99 Ky. 59, 34 S.W. 1066, wherein the court said: ‘Out of this obligation, and the doctrine that carriers of passengers are required to use the utmost care in the management of their trains in order to prevent or avoid injury to their passengers, arises the rule that makes it the duty of carriers to exercise the highest practicable degree of care and diligence in protecting and guarding their passengers from violence and assaults, from whatever source, which may be reasonably anticipated or naturally expected to occur under the circumstances of the case and the condition of the parties, * * ’ It will be observed that the foregoing rule exacts of the carrier the highest practicable degree of care and diligence in protecting and guarding its passengers from violence and assaults, from whatever source, which may be reasonably anticipated or naturally expected to occur under the circumstances of the case and the condition of the parties. In other words, the court, in speaking of the present duty of the carrier uses the word ‘may.’ It, therefore, follows that where an instruction is designed to cover a past event (that is, to set forth the duty of the carrier with reference to something that has already taken place), the use of the word ‘might’ is altogether proper. In other words, ‘may’ and ‘might’ have practically the same meaning when construed with reference to the time of the occurrence. ‘May’ is proper when used with reference to the present, in speaking of a future event; ‘might’ is likewise proper when used with reference to a past time, and concerning an event thereafter to take place, but which had already taken place at the time the instruction was given.”

Scott v. Shine, supra was a suit for personal injuries sustained when a horse, drawing a surrey in which plaintiff was riding, became frightened of steam emitted from an exhaust pipe of a cotton gin, wheeled about and ran, throwing plaintiff to the ground as a result of which she sustained serious injuries. The gin was owned by defendant’s testator. The pipe extended through the walls of the gin toward the street. Complaint was made of an instruction because it used the word “might” in submitting the issue as to whether the owner of the gin should have anticipated the frightening of horses by the act of emitting steam from said exhaust pipe, the contention being that the word “might” imports a mere possibility rather than the probability of the happening of an accident of the character in question; that liability would not attach if such an injury was only possible, but only if injury “would” reasonably have been foreseen. The court held there was no merit to the contention citing Louisville Ry. Co. v. Wellington, supra, where the court held that the words “may” and “might” comprehend the idea of probability, as well as the idea of possibility.

In Nelson v. Boston & M. Consol. Copper & Silver Mining Co., 35 Mont. 223, 88 P. 785, l. c. 786, the court said:

“The word ‘might’ as defined by Webster, denotes not alone ‘possibility,’ but also ‘ability’ and ‘capacity.’ ‘Could’ denotes ‘ability’ and ‘capability.’ We do not think that these instructions allowed the jury to enter the realm of conjecture as to what the plaintiff might, or could possibly, have learned, but rather, that they confined the test to what a man of ordinary prudence, exercising ordinary and usual care, would have learned, and we are satisfied the jury so understood them”.

In Hannon v. Myrick, 118 Vt. 428, 111 A.2d 729, l. c. 731, the court had the following, to say on the subject:

“A sampling of our cases shows that we have used the words ‘could’, ‘might’, * * * and ‘should’ interchangeably in determining foreseeability in the sense here involved. * * * ‘On the question of what is negligence, it is material to consider the consequences that a prudent man might reasonably have anticipated.’ * * * In Humphrey v. Twin State Gas & Elec. Co., 100 Vt. 414, 422, 139 A. 440, 444, 56 A.L.R. 1011, the opinion states, ‘the existence of actionable negligence depends, not upon what actually happened, but upon what reasonably might have been expected to happen. Unless it be shown that a prudent man, situated as the defendant was at the time of his alleged default, knowing what he knew or should have known, would have regarded injury to the plaintiff or to one of the class to which he belonged as likely to result from the act or omission complained of, actionable negligence is not made out.’ * * In Butterfield v. Community Light & Power Co., Inc., 115 Vt. 23, 26, 49 A.2d 415, 417, the opinion states: ‘On the question whether there was negligence on the part of the plaintiff it is material to consider the consequences that a prudent man might reasonably have anticipated from his actions or failure to act’
“ * * * ‘Might’ is the past tense of ‘may’. ‘May’ also means ‘to be able’. Webster’s New International Dictionary. Hence ‘could’ and ‘might’ may both mean ‘was able’. * * *
“We conclude that what the plaintiff in the exercise of the care of a prudent man in like circumstances, could or might have reasonably foreseen was likely to result, was no more or less that what she should or ought to have foreseen was likely to result”.

In the case at bar by instructing' the jury that to find for plaintiff they should find, among other facts, that the driver of the taxicab knew or should have. known that the taxicab “might” be struck by automobiles proceeding eastwardly along Finney Avenue “was no more or less than requiring a finding that the taxicab driver should or ought to have foreseen that the taxicab was likely to be struck by other automobiles, and that it did not authorize a verdict upon a finding of a mere possibility of collision. We believe that any jury would so understand the instruction. If appellant thought the jury might have been confused or misled by the instruction, it should have offered a clarifying instruction so as to leave no possible doubt as to the law being submitted. We rule the point raised against appellant.

Appellant’s final assignment of error is that the verdict is excessive. This necessitates a review of the evidence bearing on said issue.

Plaintiff testified she had just entered the cab and was in the act of sitting down when the collision occurred; that she fell forward, then backward. She was removed from the cab and taken to Homer Phillips Hospital in a police car. What treatment she received at the hospital does not appear in the record. The police officer who took plaintiff to the hospital testified that his report showed “no apparent injuries”, which information he stated was given him by Dr. Walter McDonald at the hospital, after the doctor had examined plaintiff.

Plaintiff further testified that following the accident she experienced pain in her neck, head, and shoulder; that she still suffered pain in the neck and head once in a while, sometimes every week.

On December 1, 1959, plaintiff consulted Dr. Walter R. Johnson at his office. Dr. Johnson testified that on this first visit plaintiff complained of recurring headaches and pain in her neck which radiated down her body. He made an examination of plaintiff at the time. He found swelling of the throat and neck muscles, and spasm of the deep and superficial muscles. There was acute tenderness in the region of the 5th cervical vertebrae and pain which radiated down her back. All motions of the cervical spine increased the pain. The doctor’s diagnosis was that plaintiff had suffered a mild whiplash injury to the cervical spine, and a strain of the right posterior cervical muscles. He gave her some analgesic pills and a muscle relaxer and suggested she go home and relax.

Dr. Johnson next saw plaintiff on December 5, 1959. Her complaints were the same as those made on her first visit. She was still under the same treatment as prescribed on her first visit. He also saw her on December 12, 1959. Her complaints then were the same as on the previous visits, but were recurrent. He stated that it appeared that the medicine was doing the job. On this visit he changed the medicine he had prescribed. The doctor saw her again on the 19th and 28th of December, 1959. On those dates plaintiff’s complaints were the same as those previously made, but there was a difference in the intensity of the pain. Plaintiff’s next visit to the doctor’s office was on January 16, 1960, at which time her complaints were the same as they were on her previous visits. On January 23rd, which was her next visit to the doctor’s office, plaintiff’s complaints were occasional pain and stiffness; pain on the extreme turning of her head from left to right. Dr. Johnson again saw her on January 30, 1960, and March 25, 1960. On the latter date plaintiff told Dr. Johnson that she had had another attack of pain. The doctor’s examination on that date showed evidence of muscle spasm. The doctor put her back on muscle relaxing medicine. Her next visit was in November, 1960, at which time her complaints were as previously made, which was the second attack of pain in six months. The doctor again gave her medicine. On October 6, 1961, she returned to the doctor’s office. She had had another attack of pain. On this visit the doctor gave her a prescription for analgesic and for muscle spasm. The doctor did not see her again until the Thursday before the trial, March 6, 1962. An examination then revealed no positive findings. There were complaints of occasional episodes of pain brought on frequently by change in weather. Dr. Johnson testified that the reasonable value of his services was $150.00.

Considering the nature and extent of plaintiff’s injuries, we do not feel warranted in disturbing the verdict. The amount allowed by the jury was not manifestly excessive.

Finding no error in the record, the judgment appealed from is affirmed.

WOLFE, Acting P. J., and JACK P. PRITCHARD, Special Judge, concur.

RUDDY, P. J., not participating.