author: HIGGINS, Commissioner.

text:
    Louis Ernest PIERSON, Respondent, v. Marvin Hollis ALLEN, Appellant.
    No. 51677.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 12, 1966.
    Adolph K. Schwartz, St. Louis, for respondent.
    Robert W. Wilson and Robert E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.
   HIGGINS, Commissioner.

Action by respondent for $16,000 damages for personal injuries; counterclaim by appellant for $16,128.01 damages for personal injuries and property damage, and appeal from dismissal of the counterclaim with prejudice.

Respondent’s petition was filed on or about May 16, 1958; appellant’s answer was filed June 19, 1958, and his counterclaim July 3, 1958; respondent’s answer to counterclaim and reply to answer were filed July 14, 1958. Respondent amended his petition August 12, 1958, and appellant refiled his answer August 26, 1958. “Stipulation For Dismissal Of Plaintiff’s Cause of Action (Counterclaim Remains Pending),” executed by attorneys for the parties, was filed November 21, 1958, as follows:

“It is hereby stipulated and agreed, by and between plaintiff and defendant, that plaintiff’s cause of action shall be dismissed with prejudice to any other or future action on account of the matters and things contained and set forth in plaintiff’s petition, and that court costs relative to this dismissal shall be paid by defendant.
“It is further stipulated and agreed, by and between plaintiff and defendant, that defendant’s counterclaim which is pending in this cause shall not be affected by the dismissal of plaintiff’s cause of action, and that said counterclaim shall remain alive and active; and that the caption of said cause and the designation of parties shall be amended to show Marvin Hollis Allen as plaintiff, and Louis Ernest Pierson as defendant.”

Throughout all the foregoing, respondent was represented by the law offices of Limbaugh & Limbaugh, by either Rush H. Limbaugh or Stephen N. Limbaugh. Respondent’s present counsel, Adolph K. Schwartz, entered his appearance in defense of the counterclaim on behalf of respondent and his insurer, MFA Insurance Company, December 16, 1958, and he filed an amended answer to appellant’s counterclaim as of March 12, 1959, which pleaded estoppel as a result of compromise settlement as a further defense to the counterclaim which came on for trial March 17, 1959.

On the day of trial, March 17, 1959, appellant moved to redesignate himself as plaintiff and respondent as defendant in line with the stipulation which disposed of respondent’s petition. Mr. Schwartz objected on the theory that neither respondent nor his insurer consented to the stipulation. A lengthy colloquy ensued as to the difficulties presented by respondent’s motion and the cause was laid over until March 18, 1959, with the motion unresolved.

On March 18, 1959, respondent filed motions to set aside an order striking the defense of estoppel from his answer to the counterclaim, to strike the second paragraph of the stipulation for dismissal of plaintiff’s petition, and to dismiss, or for judgment on, the counterclaim. These matters were taken up in chambers and respondent testified in support of them. He testified that he hired Rush Limbaugh of Cape Girardeau to file his suit; that he agreed to a settlement of his case for $9,500; that he and his wife signed a release and received their money. He said that he did not see the stipulation; that he did know he still had a lawsuit to defend; that he did not authorize Stephen N. Limbaugh to make it, and that “they” did not ask his permission to let the counterclaim remain alive. On cross-examination he admitted that he authorized Mr. Limbaugh to file a petition for him without reading or signing it; that he did not know of his amended petition; that he never saw the counterclaim or the answer filed to it; that he placed no restrictions on his attorneys’ actions; that he did not read the release but signed where his attorney told him to sign; that he notified his insurance company about the accident. “At the time we signed the release, when he told us how much they were going to make this, he said that this man might come back with a counterclaim.” The release executed by appellant and his wife provided: “It is understood and acknowledged that said payment is made in consequence of a claim for damages having been asserted by us, and any compromise thereof, and said payment is not to be construed as an admission of liability on the part of any party hereby released for the accidental injuries and damages above described and referred to.”

In order to procure testimony from Mr. Stephen N. Limbaugh the case was laid over until March 23, 1959, and it was continued from time to time thereafter until May 5, 1965, at which time Mr. Limbaugh testified that in the course of handling respondent’s lawsuit he filed an answer to appellant’s counterclaim, told respondent about the counterclaim and discussed it with him. “I discussed with him the various facets of the litigation; that would include the claim and counterclaim, and I advised him as to what I thought would be the procedure he should follow, and as I recall it, he accepted my advice.” In negotiating the settlement he consulted respondent about leaving the counterclaim outstanding “and it was agreeable with him to go ahead with it on that basis.” He identified the stipulation in evidence as the stipulation he executed on behalf of respondent for the settlement of respondent’s claim leaving appellant’s counterclaim outstanding. He was never employed by MFA in connection with the suit.

On June 21, 1965, the court entered an order dismissing respondent’s counterclaim with prejudice; no reason was given.

Except for reversal of the parties’ relation to each other, this case is akin to Portell v. Pevely Dairy Co., Mo., 388 S.W.2d 790, and is governed, as that case was, by the rule of Kirtley v. Irey, Mo., 375 S.W.2d 129, 134: “‘[A] liability insurer’s settlement of a claim against the insured, made without the insured’s consent or against his protests of nonliability, and not thereafter ratified by him, will not ordinarily bar an action by the insured against the person receiving the settlement, on a claim arising out of the same state of facts.’ ” Annotation 32 A.L.R.2d 937, 938. Myrtie Portell sued Pevely and one Bannon for damages arising from a collision between her automobile and Pevely’s truck driven by Bannon, and Bannon counterclaimed for damages. Jury trial resulted in a verdict against plaintiff on her action and for Bannon on his counterclaim. While Mrs. Portell’s appeal from the judgment in favor of Bannon on his counterclaim was pending, a stipulation, signed by attorneys for Por-tell and Bannon was filed for the dismissal of Bannon’s counterclaim, which read: “By consent of the parties, judgment for defendant Bannon on his counterclaim set aside and for naught held. All matters in controversy in regard to said counterclaim having been settled said counterclaim is dismissed with prejudice with the express stipulation and agreement that said dismissal will in no manner affect or prejudice plaintiff’s claim now pending.” 388 S.W.2d 1. c. 791. Pevely’s motion to dismiss the appeal, which was overruled, was urged on the same theory advanced by appellant here, i. e., that the dismissal with prejudice operated as an adjudication on the merits, and that the settlement of the counterclaim operated to release Pevely. Plaintiff’s attorney stated that he was the attorney for plaintiff’s insurance carrier and represented her only on Bannon’s counterclaim and not on her claim for personal injuries. He consulted neither the plaintiff nor the attorney representing her on her claim regarding the stipulation, although he did inform the latter of the intention to settle the counterclaim.

In this case, appellant’s attorneys were employed by his insurer in defense of respondent’s petition and represented him personally on his counterclaim. They arrived at an apparently satisfactory and desirable settlement of respondent’s claim; on behalf of appellant personally, they took a release containing specific protest of non-liability and entered into a stipulation expressly providing for continuation of appellant’s own claim in order to prevent the very question now raised by respondent. Respondent, too, was in the hands of competent counsel and obviously got what he wanted, and in no way does it appear, nor does respondent claim to have been overreached by appellant’s counsel. Certainly, none of the evidence pointed to any fraud, duress or mistake in the execution of the stipulation which would invalidate it, and there was no attempt on respondent’s part to have the stipulation modified or set aside within thirty days of its entry, Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001, 1004[2, 3], even though respondent’s insurer through present counsel entered the case within thirty days of the result the stipulation accomplished. Appellant has not yet ratified or admitted any claim or allegation of negligence or fault in respect to the matters alleged by respondent in his action, and only those matters have been adjudicated which bar respondent from further action on his petition, the issues raised by appellant’s counterclaim having been expressly reserved for future adjudication.

The dismissal of appellant’s counterclaim and respondent’s position overlook the dignity and effect accorded a stipulation of the type used here. “A stipulation is an agreement between counsel with respect to business before a court, and is not one of the usual pleadings, but is a proceeding in the cause and as such is under the supervision of the court * * *." 83 C.J.S. Stipulations § 1, p. 2. They are controlling and conclusive, and courts are bound to enforce them. Burstein v. United States, 8 Cir., 232 F.2d 19, 22[3]; Keller v. Keklikian, supra, 244 S.W.2d 1. c. 1004 [2, 3]; Landers v. Smith, Mo.App., 379 S.W.2d 884. The last case presented the circumstances of this case with the exception that the right to file an original petition was reserved rather than the right to continue a counterclaim in force. Smith sued Landers and the case was dismissed by a stipulation signed by former counsel of both parties providing for dismissal of plaintiff’s petition with prejudice and providing further “That, however, such dismissal with prejudice of plaintiff’s petition * * * shall not foreclose, change, modify, affect or prejudice the rights and causes of action, if any, of Gerson V. Landers, * * * nor the rights and causes of action, if any, of the State Farm Mutual Automobile Insurance Company in the subrogation clause of its policy of insurance with the said Gerson V. Landers.” 379 S.W.2d 1. c. 886. Thereafter, Landers instituted the present suit and summary judgment was awarded defendant on the theory that plaintiff did not file his compulsory counterclaim in the first action and was barred from maintaining his own suit by the dismissal with prejudice of Smith’s suit. In reversing the judgment the court made observations peculiarly appropriate to this case: “A stipulation should be interpreted in view of the result which the parties were attempting to accomplish * * * and it seems plain beyond question that when the stipulation was executed, the parties had in mind that Landers might assert some kind of claim arising out of the same accident at a later date, and agreed that he might do so. Mr. Landers’ claim was expressly reserved in the stipulation under consideration; its provisions are in no sense as broad and inclusive as those found in the Keller case [Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001] and the Max case [Max v. Spaeth, Mo., 349 S.W.2d 1], both of which recited that ‘[a] 11 of the matters and things in controversy’ had been settled. Stipulations varying or altering trial procedure, or waiving the benefit of procedural statutes, have been consistently enforced by our courts in the absence of any claim of fraud, duress or mistake, and we can perceive no sound reason why the respondent should not now be held to what she has stipulated.” 379 S.W.2d 1. c. 888 [7-9]. And in Rudloff v. Johnson, 8 Cir., 267 F.2d 708, a stipulation for dismissal of plaintiff’s petition, which “made no mention of the counterclaim, but rather cited * * * that this cause shall be dismissed, with prejudice to any other or future action on account of the matters and things contained and set forth in plaintiffs petition * * ” was held not to carry dismissal of the counterclaim with it because it specifically related only to those matters in the petition without reference to the pending counterclaim.

Under these circumstances and authorities appellant is not to be deprived of his day in court by a proper compromise of respondent’s claim which expressly reserved to appellant his right to continue with his counterclaim.

This is not a case where, if appellant recovers a jury verdict, both parties will have been permitted to recover for the negligence of the other because respondent’s recovery was had upon a release which prohibited construing the settlement as an admission of liability; whereas a jury verdict in favor of appellant would be an adjudication of liability on respondent.

In asserting his contention that the dismissal of the petition was an adjudication on the merits which barred respondent’s counterclaim, respondent emphasizes only the dismissal provision of the stipulation and avoids giving meaning to the entire stipulation. He relies on Keller v. Keklikian, supra; Max v. Spaeth, Mo., 349 S.W.2d 1, England v. Yellow Transit Co., 240 Mo.App. 968, 225 S.W.2d 366, and Eberting v. Skinner, Mo.App., 364 S.W.2d 829. The distinction drawn as to the first two cases in Landers v. Smith, supra, is sufficient for distinguishing all those cases from this case because in none of them was there a reservation of the settling party’s right to pursue his own cause of action.

Accordingly, the judgment is reversed and the cause remanded.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    Lois Wood THOMAS, Plaintiff-Appellant, v. Kenneth Lee JONES, Defendant-Respondent.
    No. 51675.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 12, 1966.

      Neale, Newman, Bradshaw, Freeman & Neale, Jean Paul Bradshaw, Warren S. Stafford, Springfield, for plaintiff-appellant.
    Glenn A. Burkart, Harold F. Glass, Mann, Walter, Burkhart, Weathers & Schroff, Springfield, for defendant-respondent.
   WELBORN, Commissioner.

Action for $50,000 damages for personal injuries sustained in automobile collision. At trial on issue of damages only, jury returned verdict for plaintiff for $7,000.00. Plaintiff’s motion for new trial was overruled and she has appealed.

Plaintiff Lois Wood Thomas was injured on September 29, 1962, when the automobile, in which she was a passenger, driven by her husband, collided with a vehicle operated by defendant. Plaintiff’s husband died at the scene of the accident. Prior to the filing of the present action, plaintiff’s action for the wrongful death of her husband had been tried in the Greene County Circuit Court, resulting in a verdict and judgment in favor of plaintiff for $15,000.00. This action was filed in Wright County and taken to Webster County on a change of venue. On the trial, defendant admitted liability and the question of damages was the only issue submitted.

On this appeal, plaintiff’s first six assignments of error relate to allegedly erroneous rulings of the trial court on plaintiff’s objections to argument of defendant’s counsel, cross-examination of plaintiff, the admission of testimony on the trial of the wrongful death action as admissions against interest, and the exclusion of evidence offered by plaintiff. Plaintiff’s seventh assignment of error is that the verdict is so inadequate as to reveal prejudice on its face. Defendant contends that any error in the first six assignments was cured by the substantial verdict in plaintiff’s favor. Although defendant does answer the plaintiff’s charges of error at the trial, he contends that the only essential issue presented on this appeal is whether or not the jury’s verdict was so shockingly inadequate as to indicate that it was the product of passion and prejudice or gross abuse of the jury’s discretion.

If plaintiff’s contention of inadequacy of the verdict should be sustained, further allegations of error need not be considered. Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618, 623-625 [6, 7]; Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 486 [4, 5]. We, therefore, consider this assignment first.

Plaintiff was fifty-five years old at the time of the collision. Defendant’s counsel admitted at the trial that she sustained “great injuries” in the collision. Her undisputed injuries included contusion of the brain; serious cuts over the right eye, in the forehead, in the lip, through which a broken tooth protruded, and a deep cut in the right arm; contusions over her chest; a badly bruised right thigh; fractures of the second and third metacarpals of the left foot. She was treated at the scene of the collision by Doctor Sample and removed by ambulance to the hospital at Mansfield, where she remained under the care of Doctor Sample for four days. In addition to her external injuries, Doctor Sample found that the cut in her forehead had severed a nerve and that there was deviation and partial paralysis of the right eye, causing it to turn inward.

She was removed to the Lebanon Hospital for care by her family physician, Dr. Paul Jenkins. Doctor Jenkins concluded that she needed specialized neurosurgical and orthopedic care, and she was taken to Eurge-Protestant Hospital in Springfield on October 5, 1962. There she was under the care of Dr. William Snead, an orthopedist, and Dr. Howard McAlhaney, a neurosurgeon. Doctor Snead placed pins in her toes and applied traction to the broken metatarsals and placed a cast on her foot and leg. Doctor McAlhaney treated the cerebral contusion. Plaintiff . was discharged from the hospital on October 13, 1962. At that time she was wearing a walking cast which remained on until November 16. Doctor Snead testified at the trial that the fractures had healed with a strong union, with some slight displacement. He stated that, upon his most recent examination of plaintiff, she complained of pain in the foot after standing. He attributed the pain to the displacement. He provided plaintiff with a specially built-up shoe to wear. Doctor Snead stated that the condition of her foot is permanent. He said that it would give her pain and discomfort after long standing or walking, but that she could stand on her feet for short periods of time and handle business.

Doctor McAlhaney’s examination of March, 1964, revealed residuals of a cerebral contusion. Plaintiff complained of headaches, dizziness, poor memory and difficulty in organizing her thoughts. Examination in March, 1965 revealed the same complaint and findings. Doctor McAlhaney’s opinion was that plaintiff was not at that time able to engage in gainful employment. He stated that only time would tell whether the condition was permanent.

Doctor Jenkins last saw plaintiff in September, 1964. His opinion, arrived at then, was that plaintiff “has permanent mental impairment, she has permanent physical impairment in that she staggers, and that she has poor balance, she thinks slowly, she reacts slowly.” He stated that she would not be able to stand a regular job and that her condition would not improve.

At the time of the trial in April, 1965, plaintiff’s cuts had healed, leaving scars and some disfigurement. She complained of headaches, dizziness and pain in her left foot. She said that she had difficulty walking because of a problem in retaining her balance. Her medical expenses amounted to approximately $1,650.00.

Defendant offered no medical testimony. His position was that, although plaintiff did sustain serious injuries, she had made a remarkable recovery. Defendant points to Doctor Snead’s testimony that the fractures of her foot had healed with a strong union and that there was nothing in her foot that would keep her from moving around normally. He points to Doctor McAlhaney’s testimony that plaintiff’s vision problem had cleared before she left the hospital and that he found nothing abnormal on recent neurological examination.

Defendant points to plaintiff’s testimony that Doctor Snead had prescribed no treatment or exercise for her left foot since 1962; that, although she complained of forgetfulness, that condition was improving; that the protracted litigation in which she had engaged had adversely affected her physical condition “to some extent.”

Plaintiff and her husband, who was seventy-two years of age at the time of his death, had operated a cleaning business in Lebanon for several years. Prior to 1957, the business was operated as a partnership, the plaintiff’s brother as a partner of plaintiff’s husband. In 1957, the partnership was changed to show plaintiff and her brother as the partners. According to plaintiff, the change was made because her husband’s social security had been paid up. Thereafter, plaintiff was in a position to earn social security credit. According to plaintiff’s brother, plaintiff worked regularly at the business, nine hours a day. Prior to the accident, she checked in orders at the counter, gave out orders, inspected and assembled orders “or anything that might come up. There was just something to be done all the time.” She did most of the book work for the partnership. Plaintiff’s brother stated that plaintiff and he managed the business, with incidental assistance from plaintiff’s husband, who had not participated in the management since 1955 and did only delivery work.

Plaintiff did not return to work at the business after the accident. In January, 1963, she sold her interest in the business to a sister for $6,000.00.

Partnership information returns were introduced in evidence, showing, for the years 1957 to 1962, partnership net income of from some $12,500 to nearly $15,000, which according to the returns, was divided equally between plaintiff and her brother. Plaintiff received no income from the business after the sale of her interest.

Defendant showed that, in the wrongful death action, plaintiff testified that she had never tried to run the business without her husband and that she could not run it without him; that she relied upon him' and could not have earned what the partnership did without her husband; that, if she had been in good health, she and her brother and his wife could not have continued to operate the business.

Considering the evidence in the light most favorable to the verdict (Glore v. Bone, Mo.Sup., 324 S.W.2d 633, 635 [3]; Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 486[6, 7]), we are unable to conclude that the amount of the verdict is grossly and shockingly inadequate. Defendant’s cross-examination of plaintiff’s witnesses brought out matters which tended to minimize the permanent effect of plaintiff’s injuries. The inconsistencies between plaintiff’s testimony at this trial and at the wrongful death trial regarding her husband’s contribution to the cleaning shop earnings could have the effect of heavily discounting plaintiff’s claim for loss of earning capacity. We do not find such inadequacy in the verdict as would justify, for that reason alone, our overruling the trial court’s denial of plaintiff’s motion for a new trial. Glore v. Bone, supra; Conner v. Neiswender, 360 Mo. 1074, 232 S.W.2d 469; Polizzi v. Nedrow, Mo.Sup., 247 S.W.2d 809; Spica v. McDonald, Mo.Sup., 334 S.W.2d 365.

Does this conclusion, as defendant contends, foreclose consideration of plaintiff’s other assignments of error?

The rule which defendant invokes does preclude appellate relief, on the basis of trial error on the issue of liability, in favor of a plaintiff who has recovered a substantial verdict. McCormack v. McNamee, Mo.Sup., 274 S.W.2d 272, 279[9, 10]; Stone v. Farmington Aviation Corporation, 360 Mo. 1015, 232 S.W.2d 495; Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050, 1056[5]. Here, however, the only issue tried was that of damages, and all errors alleged by plaintiff relate, of necessity, to that issue. Plaintiff states, in reply to defendant, that the rule contended for by defendant is not applicable “when the alleged error, either in the admission or rejection of evidence, * * * relates to the measure of damages or has some demonstrable connection with the amount of the verdict.” We do find numerous cases in which our appellate courts, on an appeal by a plaintiff who complains of the inadequacy of a verdict, have considered alleged trial errors relating to the issue of damages. Hemminghaus v. Ferguson, 358 Mo. 476, 215 S.W.2d 481, 486; Davidson v. Schneider, Mo.Sup., 349 S.W.2d 908, 909; Wilhelm v. Kansas City Public Service Co., 358 Mo. 6, 212 S.W.2d 915, 917; Conner v. Neiswender, 360 Mo. 1074, 232 S.W.2d 469, 472; Polizzi v. Nedrow, Mo.Sup., 247 S.W.2d 809, 813; Glore v. Bone, Mo.Sup., 324 S.W.2d 633, 636; Spica v. McDonald, Mo.Sup., 334 S.W.2d 365, 369. In all of these cases, the reviewing court found against the plaintiff-appellant on his complaint based upon the inadequacy of the verdict and on his allegation of trial error. Therefore, no occasion arose for a ruling on the effect of trial error on the issue of damages in a case where the verdict was not found inadequate under the established standards of appellate consideration of the latter issue.

Defendant’s primary reliance, in support of his position, is upon the 1965 decision of the Springfield Court of Appeals in Kirst v. Clarkson Construction Company, 395 S.W.2d 487. In that case, the contested issue was the amount to which plaintiff was entitled for damage to her house from defendant’s dynamite blasting. Although the amount of damages sought does not appear, plaintiff’s evidence appeared to show damage in the $6,000 range. The jury’s verdict was in favor of plaintiff for $1,150.00. Plaintiff’s motion for new trial attacked the verdict as inadequate and also specified trial errors. The trial court sustained the motion for three alleged trial errors, inferentially overruling assignments pertaining to inadequacy of the verdict. Plaintiff sought to sustain the order for new trial on the grounds of inadequacy of the verdict, which she claimed was the “inherent” result of errors for which the new trial was granted.

In considering the case, the Court of Appeals said that “it is crystal clear that plaintiff’s appellate position necessarily must rest and depend upon her contention that the damages assessed by the jury were inadequate. Otherwise, it could not be said that trial errors, whatever they might have been, materially affected the merits of the action and constituted prejudicially reversible error. V.A.M.R. Rule 83.13(b); V.A.M.S. § 512.160(2).” 395 S.W.2d 491.

After reaching the conclusion that the verdict was not inadequate, the court stated: “In the case at bar, we lack (as heretofore pointed out) the essential predicate of a ‘shockingly inadequate’ verdict. And the general rule being * * * that, where the jury has made a substantial award of damages, plaintiff will not be heard to complain upon appeal about the admission or exclusion of evidence * * *, we well might pass without discussion grounds 1 and 2 specified in the order granting a new trial.” 395 S.W.2d 495.

However, the court did review the alleged trial errors and concluded that no prejudicial error was shown.

Insofar as the court concluded that the matters specified by the trial court as the basis for granting a new trial did not constitute prejudicial error, the opinion is consistent with the injunction that a judgment is to be overturned only for “error * * * committed by the trial court against the appellant, materially affecting the merits of the action.” Civ.Rule 83.13(b), V.A.M.R. However, the case does not actually hold that an appealing plaintiff who has received a verdict for substantially less than the amount sued for cannot obtain a new trial for prejudicial error on the trial of the issue of damages.

In Grodsky v. Consolidated Bag Co., 324 Mo. 1067, 26 S.W.2d 618, 1. c. 624, the court stated:

“We are mindful of the fact that this court has generally held that in actions for damages judgment would not be set aside on the sole ground of inadequacy * * *, but this rule is subject to the well-recognized exception, above noted, that appellate courts will interfere when upon a consideration of the whole record the judgment is so shockingly inadequate that it can be explained only as the result of passion, partiality, or prejudice. If, on appeal, the verdict can be reasonably accounted for on the theory that the jury believed only enough of plaintiff’s evidence to fix liability, the exception by its terms would not apply. Sometimes the condition of the record in a case admits of no such explanation, as where it appears that defendant expressly conceded the nature and extent of plaintiff’s injuries, or where they were so obvious that their mere ocular presentation to the jury amounted to proof as a matter of law. Craton v. Huntzinger (Mo.Sup.) 187 S.W. 48, 52. And when from its consideration of the sise of a verdict, whether great or small, in connection with matters of record having a prejudicial tendency, an appellate court may conclude that the judgment should be reversed and the cause remanded for a nezu trial, the province of the jury is not invaded." (Emphasis ours)

In the present case, defendant’s counsel in closing argument to the jury in effect conceded that a verdict of $8,000 would be a fair compensation to plaintiff for her injuries and pain and suffering. In view of this concession and of the further argument of defendant’s counsel that plaintiff was not entitled to recover for loss of earning capacity, the obvious conclusion is that the jury rejected plaintiff’s claim for loss of earning capacity. Plaintiff’s first assignment of error relates to rulings of the trial court on objections to defendant’s counsel’s argument on the loss of earning capacity issue. In view of the demonstrable relationship between the size of the verdict and the jury’s determination of such issue, we will consider plaintiff’s allegations of error. Grodsky v. Consolidated Bag Co., supra.

The cause was submitted on modified MAI damage instruction 4.01. Plaintiff’s attorney argued that plaintiff’s damages included her loss of earning capacity, medical expense, pain and suffering, and permanent injury.

He argued that the evidence showed that her injuries had made plaintiff unable to work and that she was entitled to recover for loss of an earning capacity measured by at least one half of her share of the partnership income.

Defendant’s counsel acknowledged that plaintiff was entitled to recover her medical expenses. He then stated:

“In addition to that, she has been injured. Nobody denies that, though we do deny what the permanency of those — of those injuries are, and how long they are going to last, and how serious they were.
“Now, there were great injuries at that wreck. You have heard from her own doctors, Dr. McAlhaney and Dr. Snead, that she has recovered, made a great recovery on those; that her foot, Dr. Snead said, will continue to bother her, after long standing on it, or walking, and that there is a limited motion there. We do want you to award her damages for that.
“Dr. Snead said that on his examinations that there was a slight limitation of motion in her neck, and that there was a slight limitation of motion in her back, when she leaned forward, but nothing going backward. We do want you to award her damages for that.
“But we do not want you to award her damages for the loss of wages, which was recovered in this law suit in Springfield a year ago.—
“MR. BRADSHAW: — If it please the Court, I want the record to show that we object to that, because that was a separate law suit, and has nothing to do with this law suit, and we ask that the jury to be instructed to disregard that argument.
“THE COURT: It will be refused.
“MR. HAYMES: Now, Mr. Jones has tried to do the fair thing about this. But has the other side been fair about it, and have they been fair with you here in this trial of this law suit? They have tried to tell you here that she earned $7,000.00 a year, and that she lost that, and that you were to award her for the remainder of her life $7,000.00 a year that she lost. That is what they are trying to tell you here. They didn’t tell you that that was awarded in another suit.
“Have they been fair in this case ? They did not even file this case, until after the other suit in Springfield was determined,—
“MR. BRADSHAW: — If it please the Court, I object to that argument as being highly improper. She had a right to file that case as a separate action. That is not proper argument, bringing in another trial. That had nothing to do with this law suit. There was no recovery of damages for wages in the other trial. That was a death action. And I want to renew my objection, and ask the Court to instruct the jury to disregard that argument of Mr. Haymes on that.
“THE COURT: Objection overruled.”

On this appeal, plaintiff contends that the rulings of the trial court were prejudicially erroneous because they permitted defendant’s counsel to argue that plaintiff had recovered in the wrongful death action for her own personal injuries and loss of earning capacity for which she brought the present action. However, plaintiff’s counsel clearly overstates his contention when he states that defendant argued that plaintiff had recovered for her personal injuries in the wrongful death action. By his argument, defendant’s counsel acknowledged his liability on this score. The matter questioned was the loss of earning capacity. Defendant, on this appeal, contends that, in view of plaintiff’s inconsistent testimony in this case and the wrongful death case, “it was a perfectly legitimate inference for respondent’s [defendant’s] counsel to argue that appellant [plaintiff] had been unfair in telling the jury in the instant case that she had tried to claim lost earnings of $7,000 per year when she had recovered for those lost earnings in the wrongful death suit.”

Defendant here does not contest the sub-missibility of plaintiff’s claim for loss of earning capacity. Plaintiff’s evidence that she regularly worked nine hours a day in the cleaning establishment and the testimony as to the nature of her services, together with the evidence that the permanent nature of her injuries would prevent such activity in the future, authorized the consideration of loss of earning capacity as an element of her damages. Defendant certainly had the right to argue that plaintiff’s testimony in the present trial as to the measure of her earning capacity (the partnership profit) should be considered in the light of her testimony at the wrongful death action pertaining to her husband’s role in the production of the partnership income. However, defendant had no right to argue that plaintiff had been compensated in the wrongful death action for her loss of her earning capacity. Plaintiff’s objection to such argument should have been sustained. In overruling plaintiff’s objection and permitting defendant’s counsel to pursue such line of argument, the trial court permitted the jury to consider this element of plaintiff’s damages in a wholly erroneous light. Defendant’s argument went much farther than merely telling the jury that plaintiff had been unfair in her testimony at the two trials. Plaintiff had, by the inconsistency in her testimony at the two trials, placed herself in a position that afforded a basis for fairly attacking her claim. However, such inconsistencies did not warrant the erroneous conclusion which defendant’s counsel drew in his argument and which the court approved. Certainly there was no basis for the statement of defendant’s counsel which might have led the jury to infer that plaintiff had been awarded $7,000 per year for life in the wrongful death action. (“They have tried to tell you here that she earned $7,000.00 a year, and that she lost that, and that you were to award her for the remainder of her life $7,000.00 a year that she lost. That is what they are trying to tell you here. They didn’t tell you that that was awarded in another suit.” (emphasis ours))

While we acknowledge, as defendant states, that control of argument is primarily the province of the trial court and that considerable discretion is accorded the trial judge in this respect (St. Louis Housing Authority v. Barnes, Mo.Sup., 375 S.W.2d 144, 148 [8, 9]; Butcher v. Main, Mo.Sup., 371 S.W.2d 203, 208 [4, 5]), nevertheless, argument which is wholly outside the issues of the case and which misleads and prejudices the jury against a party should not be allowed. The trial court has the duty, upon proper objection, to keep the argument within proper limits. Its failure to do so constitutes a proper ground for relief in this court. Amsinger v. Najim, 335 Mo. 528, 73 S.W.2d 214, 216[5]; Wood v. St. Louis Public Service Co., Mo.Sup., 246 S.W.2d 807, 815[10, 11]; Green v. Ralston Purina Co., Mo.Sup., 376 S.W.2d 119.

Our conclusion makes unnecessary the consideration of additional assignments of error by plaintiff. The judgment is reversed and the cause remanded for a new trial. In view of the judicial admission of liability, the new trial should be limited to the issue of damages.

Reversed and remanded.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Russell ARMENTROUT and Marion Parker, as individuals, and as representatives of the qualified voters of the Fourth Ward of the City of Louisiana, Missouri, Appellants, v. John E. SCHOOLER, Mayor, R. D. Hamlett, Junior Clark, Holman Snead, Merle Scranton, Frank Ince, Joe Carr, Robert Price, John Kitson, as Councilmen, Mrs. F. A. Hallows, as City Clerk, and the City of Louisiana, Missouri, a municipal corporation, Respondents.
    No. 51856.
    Supreme Court of Missouri, Division No. 1.
    Dec. 14, 1966.

      Edward A. Glenn, Louisiana, Mo., William C. Mcllroy, Bowling Green, for appellants.
    Fred Wilkins, Louisiana, Mo., for respondents.
   HOUSER, Commissioner.

Two residents, taxpayers and duly qualified voters of the fourth ward of the City of Louisiana brought this action against the city, its mayor, council and clerk to declare invalid a city ordinance dividing the city into four wards and fixing the geographical boundaries thereof; to require defendants to take a census of the inhabitants of the city and reapportion the wards substantially on an equal population basis; to enjoin further municipal elections for members of the city council on the basis of the existing wards, and upon defendants’ failure to do these things to institute contempt proceedings and proceed to reapportion the wards by judicial decree. Plaintiffs claim that “The malapportionment between the wards of the City of Louisiana has resulted in a debasement or dilution of the weight of Plaintiffs’ vote as voters of the Fourth Ward and a denial of suffrage to Plaintiffs, constituting an invidious discrimination against Plaintiffs’ constitutional right to full, equal and effective participation and representation in the political processes of their municipal government under the equal protection clause of Section 1 of the Fourteenth Amendment to the Constitution of the United States and Article I, Section 2 of the Constitution of the State of Missouri. The malapportionment aforesaid and the discrimination created thereby infringes Plaintiffs’ rights under Article I, Section 25 of the Constitution of the State of Missouri constituting an interference to prevent free exercise of Plaintiffs’ right of suffrage.” The case was submitted to the circuit court on the pleadings and two sets of interrogatories. The court dismissed the petition for failure to state a cause of action, and plaintiffs appealed. Defendants filed no brief on appeal and make no effort to uphold the judgment below.

The city was incorporated as a special charter city by legislative act passed March 14, 1849. Section 4 of Article I of Laws 1870, Adjourned Session, p. 386, provided that “The city of Louisiana, hereby created, shall be divided into four wards by the city council, so as to include, as near as may be, the same number of free white male inhabitants in each ward, and the city council shall have power to alter or change the boundaries of said wards from time to time, as they may see fit, or to increase the number of said wards, (having regard to the number of free white male inhabitants as aforesaid), so that each ward shall as aforesaid have as near as may be an equal number of such inhabitants.” In 1949 the city was reorganized as a city of the third class under the provisions of § 72.030. Section 72.110 provides:

“The jurisdiction of any city which shall be reorganized under this chapter shall not in anywise be affected or changed in consequence of such reorganization, but such limits, wards and boundaries shall remain after such reorganization the same as before such reorganization; and all laws or parts of laws or ordinances, not inconsistent with the provisions of the chapter dealing with the class into which such city is reorganized, which were operative in such city prior to its reorganization, shall continue to be in force until repealed or otherwise changed by ordinance.”

Section 115 of the 1950 revision of the city ordinances divides the city into four wards and fixes their geographical boundaries. The council consists of eight members, two of which are elected from each ward. One councilman is elected from each .ward each year for a 2-year term. The division provided by Section 115 has existed land continued without change for more than 75 years. During that time substantial land areas have been annexed to the city and have been attached to the fourth ward. The population of the third and fourth wards has grown, while that of the first and second wards has declined. As a result a gross malapportionment has been created among the several wards.

The mayor and councilmen and their predecessors “since the memory of man 5 runneth not to the contrary” have failed and refused to reapportion the several wards and to provide adequate census data by which such reapportionment could be intelligently and properly made. Accurate figures demonstrating the exact population imbalance in the several wards are not presently available. The federal census does not break down the population of the city into wards. The fourth ward, however, regularly casts from two to three times as many votes at city elections as does the second ward and twice as many votes as are cast in the first ward. In the last four elections for councilmen the average number of votes cast in the several wards was as follows: first, 215; second, 152; third, 328; fourth, 482. The 1962-63 census of public school students showed that the following number of students resided in the various wards as follows: first, 92; second, 126; third, 292; fourth, 236. Over the last eleven years residential water connections installed in the various wards have been as follows: first, 16; second, 27; third, 81; fourth, 109. There is no voter registration law applicable to voters in the city, and there is no voter register. The residents of the city have no right of initiative.

It is judicially admitted and established by the answer of the city and its defend-i'"ng officials that there is a gross malappor-ionment of population in the division of he city into wards, from which it necessarily follows that there is a debasement ’or dilution of the weight of the votes of [citizens living in three of the four wards.

Beginning with Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, and followed by Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821; Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; WMCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632; Hearne v. Smylie, 378 U.S. 563, 84 S.Ct. 1917, 12 L.Ed.2d 1036; Pinney v. Butterworth, 378 U.S. 564, 84 S.Ct. 1918, 12 L.Ed.2d 1037; and Hill v. Davis, 378 U.S. 565, 84 S.Ct. 1918, 12 L.Ed.2d 1037, the Supreme Court of the United States has established these principles with respect to apportionment of representatives elected on a state level: Legislative reapportionment is a justiciable issue upon which an aggrieved citizen whose right to vote has been impaired may resort to the courts for relief. Statutes which provide for the selection of legislators upon the basis of unequal apportionment of the population in the respective legislative districts may be declared unconstitutional as in violation of the equal protection clause of the fourteenth amendment to the federal constitution. Seats in the legislative branch of state governments must be apportioned substantially on the basis of population; equal representation for equal numbers of people.

In Reynolds v. Sims, supra, it was made clear that “the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections”; that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise”; that “the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State”; that state legislative districting schemes which give the same number of representatives to unequal numbers of constituents have the effect of dilution and undervaluation of the votes of those living in the overweighted and overvalued districts, thus resulting in discrimination against those living in disfavored areas, and that diluting the weight of votes because of place of residence “impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious dis-criminations based upon factors such as race.”

This Court in Preisler v. Doherty, 365 Mo. 460, 284 S.W.2d 427, 431, has held “ * * * that courts have jurisdiction and authority to pass upon the validity of legislative acts apportioning the state into senatorial or other election districts and to declare them invalid for failure to observe non-discretionary limitations imposed by the Constitution,” citing State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40, and other authorities, and that “ * * * in the matter of districting, as well as in other matters, the Legislature has no authority to enact unconstitutional laws.”

The decisive question is whether the principle that seats in the legislative branch of the state government must be apportioned substantially on the basis of population should be extended and applied to seats on a city council.

We have found no case in which the question has been passed on by the Supreme Court of the United States but lower federal courts and several state courts have sanctioned the penetration of this principle to levels of government subordinate to the level of state legislatures. Bailey v. Jones, S.Dak.Sup., 139 N.W.2d 385 (board of county commissioners); State ex rel. Sonneborn v. Sylvester, 26 Wis.2d 43, 132 N.W.2d 249 (county board of supervisors); Ellis v. Mayor and City Council of Baltimore, 4 Cir., 352 F.2d 123 (city council); Seaman v. Fedourich, 16 N.Y.2d 94, 262 N.Y.S.2d 444, 209 N.E.2d 778 (city council); Goldstein v. Rockefeller, 45 Misc.2d 778, 257 N.Y.S.2d 994 (county board of supervisors); Bianchi v. Griffing, D.C., 238 F.Supp. 997 (county board of supervisors); Griffin v. Board of Supervisors of Monterey County (1963), 60 Cal.2d 318, 33 Cal.Rptr. 101, 384 P.2d 421; Henderson v. Superior Court of Marin County (1964), 61 Cal.2d 883, 37 Cal.Rptr. 438, 390 P.2d 206; Miller v. Board of Supervisors of Santa Clara County (1964), 61 Cal.2d 885, 37 Cal.Rptr. 440, 390 P.2d 208; State ex rel. Scott v. Masterson (1962), 173 Ohio St. 402, 183 N.E.2d 376 (city council). See Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Columbia Law Review 21, 23-31; and notes in The George Washington Law Review, Vol. 33, No. 5, June 1965, p. 1132; University of Cincinnati Law Review, Vol. 34, No. 3, Summer 1965, p. 397.

Section 1 of the Fourteenth Amendment to the Constitution of the United States provides, among other things, that “No State shall make or enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the laws.”

The following provisions are from the Constitution of Missouri, 1945, V.A.M.S.: Art. I, § 1, provides “That all political power is vested in and derived from the people; that all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole”; Art. I, § 2: “ * * * that all persons are created equal and are entitled to equal rights and opportunity under the law; * * * ”; and Art. I, § 25: “That all elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

The city council in a city of the third class, elected by the people to represent the inhabitants, is primarily a legislative body exercising general governmental functions. To it broad legislative powers have been delegated, powers which directly affect the lives, liberties, health, business, trade and property of the inhabitants. §§ 77.260, 77.590. The fact that cities are created by the legislature, do not derive their power from the people affected, and occupy a subordinate position in the heir-archy of government does not detract from the principle that in a representative government the people are entitled to equal representation. As a matter of logic voters selecting their representatives to sit on a municipal legislative body are entitled to the same equal protection in the exercise of their right of suffrage as that enjoyed by voters on the state level selecting their state senators and representatives in the state and national legislative bodies; are entitled to full and equal voice in the choice of their representatives on the city council without dilution or diminution of the weight of their individual votes because of the ward in which the voter happens to reside.

The Fourteenth Amendment to the Constitution of the United States applies to the State of Missouri and to every governmental creature of the state to which it has delegated powers of government. A city of the third class is a creature of the state and its legislative body, the city council, exercises the legislative powers delegated to it by the General Assembly. The State of Missouri may exercise its legislative powers only through a legislative body apportioned on a population basis, and it logically follows that the agency, arm or instrumentality to which the state delegates some of its powers should be governed by the same principle. Seaman v. Fedourich, supra, 262 N.Y.S.2d 1. c. 449, 209 N.E.2d 1. c. 782 [4]; Brouwer v. Bronkema, No. 1855, Cir.Ct. Kent County, Michigan, September 11, 1964.

Since the members of the City Council of the City of Louisiana are elected by the people in a representative capacity, and perform primarily legislative functions importantly affecting the people, the wards from which they are elected must be substantially equal in population, under the equal protection of the laws clauses of the constitutions of the United States and of the State of Missouri.

The fact that the powers of the city council and its composition are prescribed by statute and are not constitutional in origin, and that the right to vote for representatives on the city council is statutory, not constitutional, does not compel a different ruling. The reasoning of the decisions of the Supreme Court of the United States applies with equal force to statutory offices and a statutory right to vote. “The right to vote whether statutory or constitutional to mean anything in a representative government means the right to secure equal representation.” Sonneborn, supra, 132 N.W.2d 1.c. 255.

Laws 1870, Adjourned Session, p. 386, Art. I, § 4, applicable to the City of Louisiana by virtue of § 72.110, provides for the division of the city into four wards and the apportionment of inhabitants equally among the wards “as near as may be.” This complies with the requirement that the apportionment be substantially on the basis of population. The unconstitutional and discriminatory restriction of the count to “free white male” inhabitants must be and is hereby excised from the act, which must be enforced on the basis of all and not a part only of the inhabitants, that is to say, without regard to race or sex. The act of 1870 authorizes the city council, and in view of the conceded malapportionment the council now should exercise its authority, to alter the boundaries of the wards so as to preserve substantial equality of distribution of inhabitants among the wards. Virtually the same authority rests in the council by reason of §§ 77.030 and 77.260, which empower the city council in any city of the third class by ordinance to divide the city into wards and to enact ordinances deemed expedient for the good government of the city, and to alter and modify the same.

We conclude that the present dis-tricting of the City of Louisiana must be held unconstitutional because it violates the equal protection of the laws clauses of the constitutions of the United States and the State of Missouri and that § 115 of the Revised Ordinances of the City of Louisiana, 1950, fixing the boundaries of its wards, must be altered and modified so as to include “as near as may be,” or “as nearly as is practicable,” Wesberry v. Sanders, supra, the same number of inhabitants in each ward. The duty to conform to constitutional standards falls upon the city council. In performing this duty the city council will not only divide the city into wards in such manner as to apportion the inhabitants among the wards as near equally as may be, but also will observe the requirement that the wards newly created shall be composed of contiguous territory as compact as possible. See §§ 2 and 7, Art. III, Constitution of Missouri as amended January 14, 1966.

A city election will be held on the first Tuesday of April, 1967, § 77.040, at which time councilmen will be elected, one from each ward. This will occur prior to the time within which the city council can reasonably be expected to complete its reapportionment and prepare and pass the necessary amendatory ordinances. For this reason the April, 1967 elections will not be ordered stayed and the unconstitutionality of the present districting ordinance shall not become effective immediately but as hereinafter directed.

Accordingly, the judgment of the circuit court is reversed, and acting under § 512.160(3) this Court enters here a new judgment by which we declare that:

(1) The provisions of Section 115 of the 1950 revision of the ordinances of the City of Louisiana fixing the geographical boundaries of the four wards of that city are null and void because they are in conflict with the equal protection of the laws clauses of the state and federal constitutions. This declaration of unconstitutionality and invalidity shall become effective on January 1, 1968.

(2) The orderly operation of government requires that the present city council elected under said Section 115 and the four councilmen to be elected thereunder in April, 1967 be permitted to function until their terms of office expire. As the terms of office of councilmen elected under said Section 115 expire their successors on the city council shall be elected from the newly constituted wards. The validity of the acts of the city council in the interim shall not be challenged on the basis of this decision.

(3) Subject to the provisions of the foregoing judgment, the cause is remanded to the Circuit Court of Pike County for the entry of any appropriate orders necessary to enforce our judgment, and to reapportion the inhabitants among the wards of the City of Louisiana under the orders and administration of the circuit court if the city council shall not have redrawn the boundaries of the wards in such a manner as to meet constitutional standards by January 1, 1968.

WELBORN, C., not sitting.

HIGGINS, C., concurs.

PER CURIAM:

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

HOLMAN, P. J., HENLEY, J., and STORCKMAN, Alt. J., concur.

HYDE, J., not sitting.

      . All section references are to RSMo 1959, V.A.M.S., unless otherwise designated.

      . Construed in Preisler v. Calcaterra, 362 Mo. 662, 243 S.W.2d 62, as substantially the same as “free and equal.”


text:
    Horace T. ROBINSON, Administrator of the Estate of James Egan, Deceased, Respondent, v. Larry BENCH and Elenor Bench, Appellants.
    No. 51780.
    Supreme Court of Missouri, Division No. 1.
    Dec. 12, 1966.

      Claude T. Wood, Richland, for respondent.
    J. W. Grossenheider, Lebanon, for appellants.
   HIGGINS, Commissioner.

Action by respondent on promissory note in which appellants counterclaimed for $25,-000 damages for breach of lease. The appeal is from a dismissal of the counterclaim and summary judgment on the note for $7,-167.60.

On May 6, 1960, James Egan and Bessie Egan, husband and wife, and Larry Bench entered into a lease by which Larry Bench obtained immediate possession of The Egan Garage and Salvage Yard located at U. S. Highway 66 and the roadway to the entrance gate to Ft. Leonard Wood, Missouri. The term was five years from April 1, 1960, at a rental of $300 per month with option to renew. The lease recited that “lessee has purchased from the lessor(s) certain garage fixtures, stock and equipment and has executed his promissory note and chattel mortgage for the payment of said purchase and it is further agreed by the lessee he will not enter into any other business except that of a garage and salvage yard while any note secured by chattel mortgage is due and owing to the lessor (s).” The lease also recited, “* * * common knowledge between the parties that the Missouri State Highway Commission is in the planning stage of building a Cloverleaf and Interstate 44 on the location of the above described premises and the lessee does hereby agree that by reason of this lease he will not have any voice in the negotiations by the State * * * and does hereby waive any rights that he may have by reason of this lease agreement, in connection with the purchase or condemnation of the property by the State of Missouri. In the event that the State * * * either purchases or condemns the purchased property * * *, then in such event the lease on this property * * * shall be null and void but in such event, the lessor(s) doej hereby agree to build another building * * * equal to or better than the present building * * * at a location to be agreed upon by the lessor (s) and lessee and that the lessor(s) * * * shall enter into and lease to the Lessee said building and property for the same rental * * The chattel mortgage and promissory note mentioned in the lease were also executed May 6, 1960, and it is that note upon which respondent’s petition is stated. The note was executed by Larry and Elenor Bench, was for $5,000 due in five years, and provided for six per cent interest payable annually, for a reasonable attorney’s fee, and for acceleration in event of any default.

Mr. and Mrs. Egan died October 25, 1960. On April 4, 1961, Larry Bench filed claims in the Probate Court of Pulaski County against each of the Egan estates for $20,-000 damáges “on account of breach of the contract of lease, said contract being that drawn between James & Bessie Egan and Larry S. Bench dated May 6, 1960.” Both claims were transferred to the circuit court and were there consolidated. Motions to dismiss were filed by each of the administrators after which Mr. Bench attempted to amend his claim to state that he performed all his duties and obligations under the lease; that the land was condemned as contemplated by the lease; that the lessors and lessee agreed upon a location for the new building; that lessors subsequently died and lessee has not been furnished the replacement for the condemned building to his damage in the sum of $20,000. The consolidated claims were dismissed and this court affirmed the dismissal, holding that the original claims failed to state a cause of action because they “alleged no facts tending to show how or in what manner the contract of lease was breached,” and that the amended claim sought to assign breaches “that were not alleged or mentioned in the original claims” after the statute of nonclaim had run. Bench v. Egan’s Estate, Mo., 363 S.W.2d 547, 550, 551, 552. Subsequently, Mr. Bench sued the Egan administrators and heirs for damages for similarly alleged breach of the lease agreement. That suit, too, was dismissed, and no appeal was taken.

On June 25, 1964, this suit was filed by the administrator of the estate of James Egan for collection of the previously described $5,000 note, attorney’s fee, and interest, less payment in the amount of $150. Defendants’ answer alleged:

“3. That on the 6th day of May, 1960, these defendants and James Egan and Bessie Egan, his wife, entered into a lease contract * * *.
“4. That in conjunction with said lease agreement and in reliance upon the performance of said lease agreement, these defendants received from James Egan various materials and equipment for the operation of the business set forth in said lease agreement and that the note over which this action is instituted was a part of the whole transaction and that the consideration for said note was the performance of all of the obligations contained in said lease.
“5. That pursuant to the terms of said lease, defendants performed all of their duties and obligations thereunder and prior to the death of James Egan, the Missouri Highway Commission condemned the leased property and the lessors and defendants agreed upon a location for the construction of the building as provided in said lease * * * and the lessors purchased the land on which said building was to be constructed and commenced construction of a building of the same type and structure and equal to or better than the building which defendants were occupying under said lease, all as provided in said lease.
“6. That before said new building could be completed, the lessors died and no further work was performed on said new building and defendants were not permitted to enter into said new building and to lease the same under the same rental called for under the terms of the aforementioned written lease although defendants were required to move from the condemned building in February, 1961, and that defendants have never been furnished the new building contracted for in said lease pursuant to their rights under their agreement with James Egan and Bessie Egan.
“7. That by reason thereof, all consideration for the note sued for has failed and that there was no consideration given for said note * *

Defendants also filed a counterclaim for breach of the lease by incorporating the allegations of their answer as a basis for claiming $25,000 damages. By answers to interrogatories, execution of the note and amount of payment thereon was admitted.

Upon trial, plaintiff's oral motion to strike the counterclaim was sustained and the counterclaim was ordered dismissed on the grounds: “ * * * that the issues purported to be tendered by the counterclaim are res adjudicata and have been litigated or could have been fully litigated in the suits heretofore cited in the record by the plaintiff.” Plaintiff then moved to strike the answer which motion was sustained, the court stating, “the basis of the ruling is that the lease on which those paragraphs in your Answer, 3, 4, 5, 6 and 7, the lease is used and referred to as a defense, and that that lease has been litigated and is res ad-judicata in this case.” Thereafter, plaintiff moved for summary judgment and offered the original note and the admission of execution, whereupon the court entered summary judgment for principal, interest, and attorney’s fees in the sum of $7,167.60.

Appellants claim error in the dismissal of their counterclaim on the ground of res adjudicata “because there is not an identity of parties which is a prerequisite to the invocation of this doctrine.” It is not necessary, however, to determine the issues presented by that contention because it clearly appears, as urged by respondent, that the counterclaim is barred by the statute of limitations. The original probate claims of Larry Bench against the Egan estate filed April 4, 1961, recognized that letters of administration had been published on or before that date, and this counterclaim was not filed until December 29, 1964. Such gap is patently in excess of the limitation of nine months after publication of letters in which to file claims against deceased persons. Section 473.360, V.A.M.S., Bench v. Egan’s Estate, supra.

Appellants’ second assignment of error in striking paragraphs 3 through 7 of their answer on the ground “that the lease has been litigated and is res adjudicata in this case,” is meritorious. All of the previous actions by Mr. Bench were to recover damages for alleged breach of the lease, and in none of them was there any adjudication on, or litigation of, the lease because each was dismissed for failure to state a claim or to state a claim within the period of limitation. Respondent has not sought to recover on the note prior to this action and, as a consequence, appellants have not been called upon to litigate, and have not litigated, any defense of failure or lack of consideration. Paragraphs 3 through 7 are clearly an attempt to plead failure or lack of consideration and appellants are not precluded from such allegations even though they are also the basis for the counterclaim and are similar to the allegations of previous claims for damage for breach of the lease. In other words, the validity of the note, the liability of appellants on the note, and appellants’ defense of failure or lack of consideration have not been in issue in any prior litigation, regardless of previous allegations, and “ ‘[T]he law is well settled that a judgment or decree is only conclusive and operates as an estoppel as to the issues actually litigated and settled, and where the subsequent action is upon a different claim, the judgment in the former case is only conclusive and only bars those issues which were actually tried.’ ” Schmitt v. Pierce, Mo., 379 S.W.2d 548, 550 [1, 2]. See also State ex rel. Dalton ex rel. Stonum v. Reorganized Dist. No. 11, Mo., 307 S.W.2d 501, 506 [3], to the effect that identity of the cause of action is necessary to support res adjudicata. Consequently, appellants were entitled to their answer and defense of failure or lack of consideration; a genuine issue as to a material fact thus existed, and under that state of the record plaintiff was not entitled to summary judgment on the note. Burns v. Weber, Mo.App., 399 S.W.2d 446, 449 [3-5].

Accordingly, the judgment dismissing the counterclaim is affirmed; the summary judgment on the note is reversed, and the cause is remanded.

HOUSER, C, concurs.

WELBORN, C., not sitting.

PER CURIAM.

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

HOLMAN, P. J., HENLEY, J., and STORCKMAN, Alternate J., concur.

HYDE, J., not sitting.


author: STORCKMAN, Judge.

text:
    ST. LOUIS COUNTY, Missouri, a Body Corporate and Politic, Appellant, v. STATE HIGHWAY COMMISSION of Missouri, Respondent.
    No. 51729.
    Supreme Court of Missouri, Division No. 2.
    Dec. 12, 1966.

      Donald J. Stohr, St. Louis County Counselor, Thomas W. Wehrle, Associate County Counselor, for appellant.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for respondent.
   STORCKMAN, Judge.

This is an action for a declaratory judgment to determine if funds derived from certain general obligation bonds can be lawfully used by the plaintiff St. Louis County to reimburse the defendant State Highway Commission of Missouri for the cost of acquiring right of way for a highway in St. Louis County designated State Route AC in accordance with a contract between the County and the Highway Commission. The trial court held that the funds in question could not be so used and the County appealed. The facts are all agreed either by stipulation or admissions in the pleadings.

A proposal to issue general obligation bonds consisting of eight propositions aggregating $39,712,000 for public improvements was submitted to the voters of St. Louis County and approved on November 22, 1955. The item we are called on to construe is Proposition No. 1, which, as submitted to the voters and approved, reads as follows:

“Shall the following be adopted:
“Proposition to issue the bonds of St. Louis County, Missouri, in the amount of Eight Million, Five Hundred Thousand Dollars ($8,500,000) to provide funds for the purpose of paying any cost, judgment, and expense for property, or rights in property, acquired by purchase or eminent domain, for the construction of highways within said County; said highways to include those commonly known as the Mark Twain and Daniel Boone Expressways and Ozark Expressway with Route 61 connection, and an outer belt expressway running generally north and south and connecting with highways and expressways running generally east and west in said County.”

The proceeds from the issuance of the general obligation bonds under Proposition No. 1 were credited to a special fund designated as the "Expressway Fund” and have been or will be expended in defraying, the cost of St. Louis County highways as follows: Daniel Boone Expressway, $2,422,-281.59; Mark Twain Expressway, $2,247,-992.23; Ozark Expressway with Route 61 connection, $158,073.18; and the estimated cost in connection with Interstate Expressway 44, $1,100,000. This leaves in the special fund derived from Proposition No. 1 bonds a sum in excess of $2,500,000.

Since the approval of Proposition No. 1 by the voters of St. Louis County, the Highway Commission has constructed, or is in the process of constructing without cost to the County as part of the Interstate Highway System a limited access highway in St. Louis County, commonly called the Circumferential Expressway, and officially designated as Interstate Highway 270, Interstate Highway 244, and Interstate Highway 255. The route of the Circumferential Expressway is for all intent and purposes practically the same as the route contemplated by the “outer belt expressway running generally north and south” specified in Proposition No. 1. It would not be feasible or practical to expend monies from the Expressway Fund for the construction of the outer belt expressway referred to in Proposition No. 1 because the Circumferential Expressway follows basically the same route and will serve the purpose for which the outer belt expressway was to be constructed.

On September 9, 1953, the St. Louis County Council entered an order authorizing the County to execute a “Temporary Maintenance Agreement and Supplementary Agreement” which would permit the Highway Commission to assume certain maintenance and acquisition responsibilities over Halls Ferry Road, a public highway in the County, from the northern limits of the City of Jennings to Shackleford Road, a distance of 8.7 miles. This section of the highway designated State Route AC would become a part of the Supplementary State Highway System when constructed by the Highway Commission, and St. Louis County agreed to secure or cause to be secured the necessary right of way free of cost to the Highway Commission. On October 4, 1960, pursuant to an ordinance duly enacted by the St. Louis County Council, a contract was entered into by and between the County and the Highway Commission under which the Highway Commission proposed to construct and improve State Route AC, described above, and St. Louis County agreed to pay the costs of the acquisition of the necessary right of way for this reconstruction and improvement.

For the purpose of effectuating this prior ordinance and agreement, the St. Louis County Council on October 3, 1962, enacted an ordinance which appropriated the sum of $1,100,000 to pay the cost of acquiring the right of way for the reconstruction and widening of State Highway AC. The ordinance expressly provides that this appropriation was to be charged to the Expressway Fund created by the proceeds of the sale of bonds approved in Proposition No. 1 and was to be withdrawn from that Fund and used in connection with the improvement of State Route AC. The ordinance further provides that the Supervisor of St. Louis County is authorized to issue requisitions to reimburse the State Highway Commission when the Commission presents its statements of account.

Halls Ferry Road, now designated State Route AC, is one of the main traffic arteries running north and south in the northern part of St. Louis County and, except for a small portion of the highway at or near Interstate Highway 270, it is a narrow, two-lane heavily traveled, over-crowded road and is in dire need of widening and improving so as to relieve traffic congestion in the northern section of St. Louis County. The State Highway Commission has acquired substantial portions of the right of way for the reconstruction and improvement of State Route AC and in doing so has expended for such right of way the sum of $288,470.69, for which sum the State Highway Commission is claiming reimbursement from St. Louis County pursuant to the contract of the parties. It is estimated that additional sums of approximately $977,000 will be necessary to acquire the remainder of the right of way necessary for the improvement of the entire State Route AC. Pursuant to the agreement, St. Louis County is obligated to reimburse the State Highway Commission for such additional sums as are necessary to obtain all of the right of way of State Route AC.

By the terms of the agreement and Ordinance No. 2684, 1962, referred to above', the Supervisor of St. Louis County is authorized and directed to use the amount appropriated from the Expressway Fund to pay the cost of acquiring the right of way for State Route AC. Section 227.170, RSMo 1959, V.A.M.S., furnishes express power and authority for St. Louis County “through its proper officers, to contribute out of funds available for road purposes all or a part of the funds necessary for the purchase of right of ways for state highways”. The question presented is whether the acquisition of right of way for State Route AC is within the purpose and purview of the term “for the construction of highways within said County” as that term is used in Proposition No. 1.

In deciding against plaintiff’s contention, the trial court relied strongly on exhibit 1A which is entitled a “Fact Book” which as stated therein was put together because the leaders “of the St. Louis County Citizens Bond Issue Campaign Committee wanted to assemble in one place all the facts, figures and reasons behind the $39,-712,000 bond issue program. They wanted speakers and active campaign workers to have a manual they could refer to for information regarding any part of the bond issue program. They wanted the details spelled out as they cannot be in the customary campaign leaflet.” The Fact Book contains 113 pages and deals with all eight propositions, their origin, history and merits. The trial court referred to and quoted from the Fact Book at length. In proper circumstances such a pamphlet may be admissible to aid the court in understanding the history of a transaction and the subsequent actions of a legislative body. City of St. Louis v. Pope, 344 Mo. 479, 126 S.W.2d 1201, 1209 [3-5]. As indicated by the quotations from the manual, it was primarily for the information of “speakers and active campaign workers”. Also, as stated, it was something more than “the customary campaign leaflet”, but still it was campaign material designed to assist in the factual and favorable presentation of the propositions to the voters of St. Louis County. This is a laudable endeavor, but the fact remains that the statements made and the interpretation placed on the various proposals are those of the persons who prepared the manual. We find no culpable misstatements in the Fact Book; however, we need not discuss its contents or the trial court’s comments thereon because it has been specifically held that statements and representations made before an election held to vote on a constitutional amendment authorizing a bond issue for highway purposes are neither conclusive nor persuasive evidence on the courts when called on to construe a particular proposition adopted. State ex rel. Russell v. State Highway Commission, 328 Mo. 942, 42 S.W.2d 196, 202 [6]. This principle would apply to any legislative enactment. We must keep in mind that this is not an action to invalidate the result of the election for fraud or misrepresentation (if that were possible) but to construe one of its enactments.

Webster’s Third New International Dictionary defines an expressway as “a high-speed divided highway for through traffic with access partially or fully controlled and grade separations at important intersections with other roads”. We have concluded that expressways so defined are within the meaning of the term “highways within said County” as that term is used in Proposition No. 1. The primary rule of construing statutes and ordinances is to ascertain and give effect to the legislative intention. In so doing, words of. common use are construed in accordance with their natural and ordinary meaning.

The word highway is first used in Proposition No. 1 broadly and without limitation except that the highways must be within the County. The Proposition then states that “said highways” are “to include” the expressways specifically designated therein. The meaning of the word “include” may vary according to its context. Ordinarily it is not a word of limitation, hut rather of enlargement. 42 C.J.S. Include p. 525. When used in connection with a number of specified objects, it implies that there may be others which are not mentioned. Lynch v. Gleaner Combine Harvester Corporation, 223 Mo.App. 196, 17 S.W.2d 554, 556 [2]; Farish v. Cook, 6 Mo.App. 328, 331.

It cannot be successfully contended that St. Louis County was bound to construct the outer belt expressway running generally north and south regardless of changed circumstances. It was the beneficiary of a windfall in that the State Highway Commission constructed a highway that had the same purpose and fulfilled that need of the County. A political subdivision is not bound as by a contract to construct a public improvement where the need for its doing so has ceased to exist. Thompson v. City of St. Louis, Mo., 253 S.W. 969.

A somewhat similar situation was involved in Petition of City of St. Louis, Mo., 363 S.W.2d 612. In 1944 the City of St. Louis was authorized to issue bonds for the purpose of constructing, repairing and improving sewers and drains and acquiring rights of way therefor. When the Metropolitan St. Louis Sewer District was formed in 1954, and the sewers of the City of St. Louis were taken over by the District, a substantial amount of the bonds had not been sold. Thereafter, the City and the Sewer District entered into a contract whereby it was agreed that the City would build a certain sewer under the direction of the District with the proceeds of the unsold bonds and that the District would then take over and maintain the sewer. This court held that the fact that the sewers of the City of St. Louis had been taken over by the Sewer District did not preclude the City of St. Louis from entering into the contract of cooperation, or prevent the City from selling the remaining sewer bonds which had been authorized by an election held eighteen years previously and using the proceeds to construct the sewer which would be turned over to the Sewer District.

We hold that the intention and purpose of Proposition No. 1 was to embrace and specify expressways as one of the kinds of highways for which the funds provided could be used; the inclusion and specific mention of certain expressway routes did not have the effect of limiting the term “highways within said County” or convert and dedicate the proceeds of the bonds sold solely to the construction of expressways. Designation of the proceeds as the “Expressway Funds” did not change their essential character. It follows that funds from the Expressway Fund can be lawfully appropriated in payment of the cost of acquiring the right of way for State Route AC.

The trial court held that the contracts entered into by the parties and the prior ordinances authorizing them were valid but found, declared, and decreed “that the portion of Ordinance No. 2684, 1962 of Section 1, charging the acquisition cost of Highway AC to the ‘Expressway Fund’, is invalid and of no force or effect.” We hold that Ordinance No. 2684, 1962 is valid in its entirety.

To the extent indicated, the judgment is reversed and the cause is remanded with directions to enter a judgment not inconsistent with this opinion.

All of the Judges concur.


author: FINCH, Judge.

text:
    Henderson HOWARD, Plaintiff-Appellant, v. Carl C. RILEY, Defendant-Respondent.
    No. 51744.
    Supreme Court of Missouri, Division No. 2.
    Dec. 12, 1966.
    William W. Van Matre, Van Matre & Van Matre, Mexico, for plaintiff-appellant.
    Latney Barnes, Barnes & Barnes, Mexico, for defendant-respondent.
   FINCH, Judge.

Plaintiff obtained a verdict for $15,900 for personal injuries ($15,000) and property damage ($900) resulting from a two-vehicle collision. The trial court sustained defendant’s motion for a new trial and directed a retrial on all issues. Plaintiff appealed, seeking to have the verdict reinstated and judgment entered on the verdict.

The collision out of which this case arose occurred in Montgomery County at a T intersection of Route B, a two-lane blacktop road which runs east and west, and an undesignated gravel road which runs southward from its T intersection with B.

Both plaintiff and defendant were traveling west on B. Plaintiff’s truck made a left turn from B into the gravel road and while so doing was struck by defendant’s automobile, which was in the act of passing on the left. The parties had differing versions as to whether a left turn signal was given, whether the horn was honked, and the details of how the collision occurred. In view of the nature of the questions on appeal, it is not necessary to recite the details of this conflicting evidence.

Plaintiff’s petition charged several grounds of negligence, one of which was that defendant operated his automobile at a “high and excessive rate of speed and at a rate of speed that was not careful and prudent under the circumstances then and there existing considering the location with respect to intersecting highways, thereby endangering the life, limb and property of other persons on said highway and particularly the plaintiff.” During the course of the trial, plaintiff called as a witness the Judge of the Magistrate Court of Montgomery County, who read to the jury as an admission against interest the official records of his court pertaining to a case by the State of Missouri against defendant herein which arose out of the operation of his motor vehicle at the place and time in question. From those records it was disclosed that defendant, on October 23, 1963, entered a plea of guilty to the charge in an information filed by the Prosecuting Attorney of Montgomery County. It charged that on October 14, 1963, Carl C. Riley wilfully and unlawfully drove a motor vehicle on Route B in Montgomery County “in a careless and imprudent manner and at a rate of speed not careful and prudent considering the time of the day, the amount of vehicular and pedestrian traffic, the condition of the highway, the location with reference to intersecting highways, curves, and residences and schools, thereby endangering the life, limb and property of other persons.”

On cross-examination of the magistrate by counsel for defendant, the following occurred :

“Q. Now, when the Information was first read to him, did he immediately admit his guilt to that ? A. Well, he attempted to explain the circumstances connected with the case.
“Q. Then what was said to him about it, when he went on to say he would like to explain it? A. As I recall, I advised him that if he wanted to enter a plea of not guilty, I couldn’t hear and didn’t want to hear any of the facts of the case — if he wanted to enter a plea of not guilty, we’d set it for trial.
“Q. If he wanted to enter a plea of not guilty you would set it for trial and there would be a trial. Now, what was said about, if, however, he plead guilty, then he’d be able to: — did not Mr. Lehnen say right then, ‘If, however, you plead guilty, then you can explain your side of it to the Judge?’
“MR. VAN MATRE: Now if the Court please, what Mr. Lehnen said would be hearsay to this plaintiff.
“THE COURT: Objection sustained.
“MR. BARNES: I think we have the right, Your Honor—
“THE COURT: The objection is sustained.
“(AT THE BENCH, WITHOUT THE HEARING OF THE JURY)
“MR. BARNES: We offer to show, if permitted to answer, that this witness will testify that the defendant was told in open court that he would not be permitted to tell what happened until after he had entered his plea of guilty — that if he did enter a plea of guilty, he would then be entitled to tell his side of the story. I think he has a right to show the circumstances under which he entered the plea.
“THE COURT: Proffer denied.
“(BEFORE THE COURT AND JURY)
“Q. He was fined $15.00 and he paid the $15.00? A. A fine of $15.00.
“MR. BARNES: That’s all.”

After the evidence was all in and just before arguments to the jury were to begin, the following occurred outside of the presence of the jury:

“MR. VAN MATRE: * * * During the final arguments, we do not think that the defendant’s attorney ought to be able to argue to the jury any explanation or extenuation of the conviction had in the Magistrate Court of Montgomery County. I don’t think he ought to be permitted to argue in any way concerning that conviction that would attempt to show it was done in any way other than a formal plea of guilty.
“MR. BARNES: We think that’s not the law. We don’t think having admitted his guilt, that he is automatically forever barred against making any explanation of his reasons for doing so.
“THE COURT: The Court is of the opinion that the conviction is final. There is no way to collaterally attack it. It can’t be attacked at this time. That doesn’t necessarily mean that the act cannot be, that the defendant was not, in fact, guilty of negligence. The Court will not permit an argument attempting to state he was not in fact guilty of what he plead guilty to.”

Finally, during argument of the case to the jury, the following occurred:

“MR. BARNES: * * * Now that’s the charge. And we say to you that a $15.-00 fine imposed on that, and you heard the Justice himself say, Well, the man first said he wasn’t guilty of that.’ And he said, Well, you’ll have to plead guilty or not guilty.’
“MR. VAN MATRE: Just a moment — -
“THE COURT: The objection is sustained.
“MR. VAN MATRE: If the Court .please, in view of the previous objections that were made, we ask that counsel be reprimanded for that remark.
“THE COURT: I think, Mr. Barnes, that was beyond the scope of the argument which the Court had earlier indicated you were entitled to go.
“MR. BARNES: I beg the Court’s pardon if I have gone beyond what I should have.”

The trial court sustained defendant’s motion for a new trial on the specific ground that it erred in refusing defendant’s offer of proof made during cross-examination of the magistrate, erred in instructing counsel not to argue to the jury that defendant was not guilty of the misdemeanor to which hq had entered a,plea of guilty, and erred in sustaining plaintiff’s objection to argument of counsel about the magistrate court case and in stating to counsel that he had gone beyond the scope of argument which the court had indicated would be permissible.

All three of these incidents relate to the question of whether it is permissible in a civil case for damages arising from an automobile accident to explain a plea of guilty to a criminal charge arising out of that accident. Consequently, all three of these incidents are considered together.

We find no case in Missouri on the admissibility of evidence by way of explanation of a plea of guilty, evidence of which has been admitted in a civil case as an admission against interest. It is stated in Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 9C, § 6196, page 306: “Evidence of a plea of guilty to a criminal charge arising out of an automobile accident is generally admissible, but it is not conclusive, and may be explained.” See also Annotation: 18 A.L.R.2d 1287, 1311, where it is stated: “Evidence of a plea of guilty is not conclusive in a civil action, but may be explained by the party concerned.” See also Race v. Chappell, 304 Ky. 788, 202 S.W.2d 626, and Minasian v. Aetna Life Ins. Co., 295 Mass. 1, 3 N.E.2d 17, both of which permit evidence explaining a plea of guilty, including evidence of reasons for entering the plea.

We think that the rule announced in Blashfield and in the A.L.R. Annotation is sound, but find that on the record before us there is no basis for its application in this case.

The first portion of the offer of proof, which the court refused, sought to show by Magistrate Kamp that defendant was told he could not tell what happened until he entered a plea of guilty. The record shows that the magistrate already had been permitted to testify substantially that without objection. He had testified that when the information was read to the defendant, the latter attempted to explain the circumstances of the accident, but was told by the magistrate that if he wanted to plead not guilty, the court could not and would not listen to any of the facts of the case. Instead, he would set the case down for trial. Thus, the first portion of the offer of proof merely sought to show what the magistrate had already stated and its refusal was not prejudicial error.

The second portion of the offer of proof was that Magistrate Kamp would testify that defendant was told that if he did enter a plea of guilty, he would be entitled to tell his story. This could have been inferred anyway from what the magistrate was permitted to testify, but even if he had been permitted to testify specifically that defendant was told that he would be permitted to tell his story if he entered a plea of guilty, that would not have constituted any explanation of the plea of guilty by the defendant or why it was entered. The offer of proof did not seek to give any explanation of the action of the defendant in entering the plea. For example, there was no offer to show that he did it to save time or expense, or because he was away from home, as was true in the case of Race v. Chappell, supra, or that he was coerced, or did so on the basis of any representations, or for any other reason. Furthermore, the defendant himself later took the stand and he was not asked a single question about the magistrate court proceeding or his plea of guilty. He did not seek to offer any explanation of his plea. He did not even undertake to say that following his plea of guilty, he was given or denied a chance to explain the facts and circumstances to the judge. As a matter of fact, there was no evidence of this character given by any witness, and there was no offer of proof of such testimony by any witness. Under these circumstances, there was no exclusion of evidence to explain defendant’s plea of guilty. The action of the trial court did not violate the rule announced in Blashfield and the A.L.R. Annotation or the other cases cited, and the court’s action in sustaining the objection to the offer of proof made during cross-examination of the magistrate was not preju-dicially erroneous.

The discussion between counsel and the court which occurred outside the presence of the jury preceding argument of the case to the jury could not have been prejudicial to the defendant, even assuming that the trial court was wrong in the view of the law expressed by him as to the right to offer explanation of the plea of guilty. Counsel could only argue the evidence which had been received, and as heretofore indicated, there simply was no evidence, either received or offered, which in any sense constituted an explanation of the entry by defendant of his plea of guilty. Consequently, there was nothing of that kind for counsel to argue to the jury. There can be no error in denying a right to argue evidence which is not available for argument.

What we have said before also disposes of the complaint about the action of the trial court during the course of argument to the jury. There simply was no evidence in the record, received or proffered, which constituted any explanation of the plea of guilty. Furthermore, the argument to which the court sustained an objection did not correctly state the testimony of the magistrate. He did not at any time testify that defendant first stated in his court that he was not guilty. Rather, the magistrate testified that defendant started to explain the circumstances of the accident and was stopped with the explanation that the magistrate did not want to hear the facts if there was to be a plea of not guilty. Furthermore, the magistrate did not testify that he • stated to defendant, “Well, you’ll have to plead guilty or not guilty.” Even if he had, that would not have constituted any explanation by the defendant as to the reasons for entering a plea of guilty, or any explanation of the plea, and we find no basis for finding prejudicial error in connection with the action of the trial court in sustaining the objection to this argument.

Under these circumstances, we find that the record does not disclose any error in exclusion of evidence or control of argument to the jury. Consequently, the action of the trial court in granting a new trial on these grounds cannot be sustained. The trial court has no discretion to grant a new trial on the basis of assignments where the record fails to disclose any error with reference thereto. Pitha v. St. Louis Public Service Co., Mo., 273 S.W.2d 176, 180.

No other grounds are asserted or briefed as a basis for sustaining the granting of a new trial to the defendant.

The defendant’s motion for new trial complained that the verdict for $900 for property damage was excessive. The order of the trial court sustaining the motion for a new trial recites that the verdict for property damage is excessive but could be corrected by an order of remittitur. This was not done since the motion for new trial on all issues was sustained by the court on other grounds, but it can be done by the trial court on remand.

The action of the trial court in sustaining defendant’s motion for new trial is reversed and the cause remanded. The court is directed to ascertain the amount by which the verdict for property damage is excessive and to reinstate the verdict and enter judgment thereon in favor of plaintiff, conditioned on remittitur by plaintiff of the amount by which the trial court finds the verdict for property damage to be excessive.

All of the Judges concur.