author: BOHLING, Commissioner.

text:
    Helen F. BEGLEY, Appellant, v. James H. CONNOR, Jr., and John E. Housh, Respondents.
    No. 48691.
    Supreme Court of Missouri, Division No. 2,
    Nov. 14, 1962.

      Milton R. Fox, William R. Kirby, St. Louis, for appellant.
    Derrick & Holderle, St. Louis, for respondent James J. O’Connor, Jr.
    Evans & Dixon, Eugene K. Buckley, St. Louis, for respondent John E. Housh.
   BOHLING, Commissioner.

Helen F. Begley instituted this action for $50,000 damages against James H. Connor, Jr., and John E. Housh for severe personal injuries sustained in a multiple automobile collision. Plaintiff appeals from the judgment entered upon a unanimous jury verdict for defendants and contends the court erred in rulings with respect to certain evidence and the giving of an instruction on behalf of defendant Connor. Each defendant contends plaintiff failed to make a submissible case against him, and that the trial court committed no reversible error.

The collisions occurred about 2:30 p. m. Sunday, August 16, 1959, on Highway 61-67 at its intersection with Oak Street in Festus, Missouri. Highway 61-67 extends generally north and south and has two southbound and two northbound lanes, with, at the scene involved, a center concrete divider strip, four feet wide and a few inches high, with openings for the passage of traffic. The asphaltic concrete with limestone aggregate' pavement on either side of the divider strip was 24½ feet wide and the shoulders were nine feet wide. There is a crown of a “little rise” in the highway and then a slight down grade for southbound traffic approaching the place of the collisions. The Oak Street opening is 124 feet long and affords access to, among other things, an eating place known as the. Dairy Queen just west of the highway. A consulting engineer, plaintiff’s witness, estimated the distance, north from the south: end of said opening to the crest of the rise,, as we read his testimony, to be about 372 feet, but on cross-examination he admitted his measurements had not included all the distance involved. Plaintiff’s brief puts this distance at 510 or 520 feet. Defendant Connor’s estimate was between 750 and 1,000 feet.

A summary, notwithstanding some repetition later, may be helpful. Four automobiles were involved. Plaintiff was a passenger on the front seat of her brother Arthur Hettenbach’s Chevrolet carryall, southbound in the inside lane, next to the divider strip. Her son Thomas and his friends Patricia and Larry Ryan occupied the other seat. Defendant Housh, his wife and two daughters, of Indianapolis, Indiana, were southbound in the outside lane in his new Pontiac station wagon, at distances variously estimated at two car lengths and 150 feet behind the carryall. Defendant Connor, northbound in his Edsel sedan, intended to stop at the Dairy Queen. He was either stopped at an angle with most of his Edsel in the 4 foot width of this Oak Street opening or was angling toward the opening and slowing down to permit the approaching southbound traffic to pass. Connor’s Edsel suddenly shot out in front of the carryall when the carryall was one or two car lengths north of it. The carryall and Edsel collided and both went westwardly into the outside southbound lane. Housh braked and swerved his Pontiac but a second collision occurred; i. e., the Pontiac .and the carryall collided. Mrs. Made Davidson at said time was northbound in the ■outside lane in a Chevrolet. She turned into the inside lane to pass a car immediately ahead of her and her car struck the Edsel and knocked it into the southbound lanes. Mrs. Davidson was not a party to this suit.

Plaintiff’s case against defendant Connor rests upon the testimony of her brother; and her case against defendant Housh rests upon the testimony of her son.

After stopping for ice about a half mile or more north of the electric traffic signal at the Festus-Crystal City junction, Mr. Hettenbach drove his carryall in the southbound inside lane, next to the divider strip, up to the point of the collisions, stopping, however, for a then red electric signal at said junction. It had been raining hard, and was still raining. The pavement was wet. Hettenbach’s maximum speed was 30 to 35 m. p. h. He was just over the “little rise” in the highway when he first saw Connor’s northbound Edsel, and “guessed” the Edsel was “something like” two blocks or “was about a block” and “I was about a block” from where the accident occurred. He testified in chief that he didn’t pay any attention to the Edsel until the carryall came “to the break in the divider” and the Edsel “started to angle toward my side of the road and seemed to slow down and looked like he was going to let me pass until we got almost on top of each other and then he came right out in front of me.” On cross-examination he stated the Edsel, with its whéels in the opening in the divider strip, was at about a thirty degree angle, like it was “slowing down — stopping to let me get by.” He concluded the Edsel was going to stop and let the carryall maintain its speed of 30 m. p. h. and pass. He stated at different times that the carryall was less than a car’s length or was about two car lengths from the Edsel when the Edsel entered the carryall’s lane, and that it happened too fast to do anything; he “believed” he applied his brakes.

Asked, on cross-examination: “Q You mean to say this car just drove gradually out in front of you? A No. I wouldn’t say it drove gradually out in front of me. Q How did it come out? A Well, like the man’s foot slipped off the brake and hit the accelerator. Q You mean, shot right out in front of you? A That’s right. Q Just like a cannon ball? A Something like that. Q You saw him slowing down ? A That’s right. Q And he had come almost to a stop ? A Well, he hadn’t stopped, almost to a stop. Yes, he slowed down enough I figured he was going to let me pass. Q And all of a sudden when you got two or three car lengths away from him, the car shot right out into that lane, didn’t it? A Yes. Q Just as if something hit it and knocked it out there, wasn’t it? A Either that or he pushed down on the accelerator. Q It could have been one or the other, couldn’t it? A It could have.”

The cars collided at the right headlights of the Edsel and the left headlights of the carryall.

Hettenbach knew nothing about Housh’s Pontiac’s collision with the carryall.

Some additional testimony of Hettenbach appears later.

Defendant Connor testified: He moved his Edsel sedan from the outside to the inside northbound lane and signaled his intention to turn left to stop at the Dairy Queen. The highway becomes slick when wet. He slackened speed, saw southbound cars approaching, and stopped in the south 20 feet of the opening. He guessed, estimated, he was stopped about 30 seconds. Looking in his rear view mirror he saw a car within IS or 20 feet of him, then felt a terrific impact, which knocked the Edsel into the southbound lanes, and got a glimpse of a woman, later ascertained to be Mrs. Made Davidson, driving a Chevrolet and passing him.

Mrs. Made Davidson testified she was traveling 40 m. p. h., with her two minor children in the rear seat, and turned into the inside northbound lane to pass a car immediately ahead of her in the outside lane. She was not over two car lengths from the Edsel when she first saw it, stopped or going very slowly, with about 2 feet of the rear end in her lane. “I was upon him before I knew it and I hit him before I looked.” Her Chevrolet struck the Edsel and knocked it into the southbound traffic lanes.

The Davidson car was damaged at its left front bumper, hood, fender and wheel and the Edsel at its right rear end by this collision.

Here, as stated, plaintiff relies upon witness Hettenbach to establish the liability of defendant Connor. In such circumstances where plaintiff’s evidence shows the injury may have resulted from one of two causes, one of which would justify a verdict for the plaintiff and the other not, and, “as between the two possible causes, the evidence leaves the proximate cause of the injury to speculation and conjecture, plaintiff’s case must fail.” State ex rel. City of St. Charles v. Haid, Banc, 325 Mo.107, 28 S.W.2d 97, 102 [5]. “[W]hen the plaintiff’s own evidence, or evidence which he does not dispute, shows the casualty may have resulted from either of two or more causes, for only one of which the defendant would be liable, it has been held many times the burden is on the plaintiff to show the cause for which defendant was responsible produced the result.” Wills v. Berberich’s Delivery Co., 345 Mo. 616, 134 S. W.2d 125, 130 [8], See also Corder v. Pruitt, Mo., 361 S.W.2d 659 of even date herewith; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647 [6]; Pietraschke v. Pollnow, Mo.App., 147 S.W.2d 167, 170 [5].

The rule entitling a plaintiff to the-most favorable view of the evidence does not authorize courts to supply missing evidence (Nance v. Atchison, T. & S. F. Ry.Co., 360 Mo. 980, 232 S.W.2d 547, 552 [4]) or “ ‘to disregard the dictates of common reason and to accept as correct or true that which obviously, under all the circumstances in evidence, cannot be correct or true, nor does it require us to give plaintiff the benefit of any other than reasonable inferences.’ ” Wilkins v. Allied Stores of Missouri, Mo., 308 S.W.2d 623, 629 [4],

Plaintiff’s verdict-directing instruction predicated a verdict against defendant Connor on the theory said defendant, northbound on said highway, “did turn his” Edsel “to the left and across the center line of said highway” and “into the path” of Hettenbach’s southbound carryall “without stopping his said automobile before said turn” and at said time and place said carryall “was in such close proximity to said” Edsel “that it was not reasonably safe to make said left turn,” and that such was negligence on the part of said defendant and proximately caused plaintiff’s injuries. The submissibility of plaintiff’s case is to be ruled on the issue or issues upon which it was submitted to the jury. Guthrie v. City of St. Charles, 347 Mo.1175, 152 S.W.2d 91 [1, 4, 5].

Hettenbach stated that he heard four cars, one the Davidson Chevrolet, were involved in the collision; that on the evening of the collisions he went to the garage and saw all of the cars involved except one, the Davidson car, which had been removed; that his purpose at the time was to see the four cars involved, and that he saw the Edsel and it was damaged “back there,” referring to defendant Connor’s exhibits which show the Edsel was damaged at its right rear bumper and end.

Hettenbach testified he watched the Edsel closely enough to tell there was no arm or other signal for a left turn when the Edsel “started to angle into my lane,” and that he did not see the Davidson car. Asked whether he saw any other northbound traffic even with or near the Edsel as it was approaching this cutover prior to the time of impact, he answered: “Well, I don’t know if it was at the time of the impact. No, I don’t remember seeing any traffic there. Q' I mean, prior to the time? A Prior to the time, I was more or less concentrated on whether he was going on in front of me or not. I wasn’t expanding my view that far.” From this we understand the witness was not expanding his view far enough to actually know whether there was or was not any northbound traffic near the Edsel immediately prior to its collision with the carryall.

Under Hettenbach’s testimony and actions no danger existed in the condition brought about by Connor slowing the speed of This Edsel in the act of “stopping to let me [Hettenbach] get by.” The danger was created and the collision resulted when the Edsel suddenly shot out like a cannon ball as if Connor’s foot slipped off the brake and hit the accelerator or as if something hit the Edsel and knocked it out in front of the carryall. Hettenbach’s testimony under the cases last cited that it could have been one or the other did not remove Con-nor’s liability under plaintiff’s verdict-directing instruction from speculation and conjecture; that is, whether the proximate cause of plaintiff’s injuries was Connor’s foot slipping off the brake and hitting the accelerator or the Davidson car hitting the Edsel and knocking it out in front of the carryall. Consult Branstetter v. Gerdeman, 364 Mo. 1230, 274 S.W.2d 240, 246 [4-6]; King v. Ellis, Mo., 359 S.W.2d 685, 688 [4, 5],

Our ruling that plaintiff failed to make a submissible case against defendant Connor results in any error in Connor’s sole cause instruction being without prejudice to plaintiff. Bunch v. Mueller, 365 Mo. 494, 284 S.W.2d 440 [2]; Brooks v. Stewart, Mo., 335 S.W.2d 104 [2], 81 A.L.R.2d 508.

The court admitted Connor’s cross-examination of each passenger in the carryall, plaintiff’s witnesses, as to when he or she heard about the Davidson Chevrolet being involved in the collisions, and Mr. Davidson’s testimony that he told plaintiff’s husband on the evening of the collisions that Mrs. Davidson was driving the car that struck the Edsel and caused the collisions. Plaintiff objected, claiming mainly the testimony was hearsay. This testimony tended to establish Connor’s defense. It need not be detailed.

Whether plaintiff made a submissi-ble case is a question of law for the court; and rulings admitting testimony, although incompetent, tending to support a defendant’s defense do not prejudice a plaintiff who has failed to make a submissible case against said defendant. Howard v. Johnoff Restaurant Co., Mo., 312 S.W.2d 55, 56 [1]; Gilbert v. Bluhm, Mo., 291 S.W.2d 125, 126 [2], 58 A.L.R.2d 1164.

On this appeal the claimed errors, relating to liability, do not affect the defendants jointly and the rights of plaintiff against one defendant do not affect plaintiff’s rights against the other defendant. Nix v. Gulf, M. & O. R. Co., 362 Mo. 187, 240 S.W.2d 709 [1] ; Grether v. Di Franco, Mo.App., 178 S.W.2d 469 [15, 16]; Rose v. Knobelock, Mo.App., 194 S.W.2d 943 [10]; Civil Rule 83.13(b, c), V.A.M.R.

Plaintiff read portions of a deposition of defendant Housh to sustain her claim against him. He had purchased a new 1959 Pontiac station wagon, equipped with power brakes, about 30 days before the collisions, and had driven it about 1,000 miles. He estimated he first noticed the carryall two or three miles north of the collisions. He remembered passing through an intersection having an electric signal before he noticed the carryall, which was then about 100 yards ahead of him. (Apparently he was not referring to the Festus-Crystal City junction intersection signal.) The speed of the Pontiac was, “roughly,” about 30 m. p. h.

Thomas Begley was 18 years old at the time of trial. He testified: He was crouched back of the carryall’s second seat shipping ice to fill the soda cooler. While the carryall was stopped in the southbound inside lane, with a couple of cars ahead of it, at the Festus-Crystal City junction, he noticed a late model Pontiac (he did not know its color or body style) which he estimated was 150 feet north of the carryall and “was still coming” in the outside southbound lane. He thought it was not quite a mile to where the collisions occurred. When the light changed “cars started going around us, passing us up and they were all ahead of us.” The second and last time he noticed the Pontiac, it was just coming over the “slight slope” in the highway and was the same distance to the rear of the carryall. He stated some soda bottles started sliding to the front when the carryall passed over this rise and he went to pick them up; “that’s when I first noticed the car,” and he started putting the soda bottles back. He was not able to state how far the carryall or the Pontiac was from the point of collision when he saw the Pontiac the second time. He did not know where the Pontiac was when the first impact occurred. “Not too shortly” after he saw the Pontiac the second time, the first impact occurred, threw him forward, tore the seat up and when he started to get up the second impact occurred.

Plaintiff’s expert witness on stopping distance made a study of the area involved on the Sunday preceding the trial; that is, some fifteen months after the collisions. Plaintiff testified that when they got on the highway out of St. Louis it started raining and was raining very hard at first. Hettenbach testified it started to rain when they got on the highway and was raining enough they had to use the windshield wipers. Lawrence Ryan, plaintiff’s witness, testified the carryall felt like it was “sliding” after the first impact. Much space is devoted in the briefs on plaintiff’s appeal from the judgment in Housh’s favor to the court’s rulings as to whether plaintiff’s expert witness, assuming “it was raining at the time, the pavement was wet, * * * and the streets were wet and it was misting enough they had to have the windshield wipers on,” could give “the shortest stopping distance” for a 1959 station wagon, with 1,000 miles on it and traveling 30 m. p. h., “with safety to the people in it and other people on the street.” The witness answered “Yes” to the question. Objections were then interposed and sustained but. the answer was not stricken. Thereafter, the question in substance, so far as material to the discussion, was renewed and upon objections being sustained, offers of proof were made that the Housh automobile could be stopped in 117 feet with safety, which, upon objections, were also denied.

The parties agree that trial courts exercise a wide discretion in the admission and exclusion of expert testimony “and the exercise of that discretion will not be interfered with unless it plainly appears that such has been abused.” Superior Ice & Coal Co. v. Belger Cartage Service, Inc., Mo., 337 S.W.2d 897, 906 [8]; Yocum v. Kansas City Pub. Serv. Co., Mo., 349 S.W.2d 860, 864 [1] (cited by plaintiff).

Among the objections interposed and renewed here by defendant Housh was that “the amount of wetness on the highway” was missing from the questions and offers of proof.

Asked on direct examination whether “asphalt pavement and being wet and raining” would be “one of the factors” to be considered in arriving at the stopping distance, plaintiff’s expert witness answered: “Yes. It’s one of the factors. Probably in this case, the more important factor in my opinion.” That portion of the answer following the word “factors” was stricken on objection by defendants that it was not responsive. He stated that wetness on the pavement lengthens “the stopping distance, depending on the speed of the vehicle”; that how much water was on an asphalt pavement enters to a degree in determining the stopping distance, and the fact that precipitation is falling on the pavement would qualify his answer.

The trial court pointed out that plaintiff’s questions assumed the surface of the highway was in a comparable condition “last Sunday, except for dampness as on August 16, 1959,” fifteen months earlier, when there had been no testimony establishing that fact. Plaintiff’s expert could not determine from photographs admitted in evidence that the surface of the highway was the same when he observed it as when said exhibits were taken — a few days .after the collisions. The court considered .■said fact issue not a matter for expert testimony and to permit it to be established '.by a witness who had observed the highway •only the Sunday before the trial would rest in speculation.

In Anderson v. Prugh, 364 Mo. 557, 264 S.W.2d 358, 362 [1], testimony of an expert witness, who was not an eyewitness, as to the maximum speed of a sled on a hill of packed snow and ice was considered improperly admitted as the speed of the sled would vary with the slickness of the snow and ice from hour to hour and other factors and there was no particular testimony introduced respecting the factors involved. Consult Burge v. Wabash R. Co., 244 Mo. 76, 148 S.W. 925, 931 [5] (where among other things, there was no evidence as to the grade or the condition of the track at the time); Impkamp v. St. Louis Transit Co., 108 Mo.App. 655, 84 S.W. 119, 121(3) (stating a question was “technically objectionable” which “did not cover the exact condition of the street and track, nor describe the equipment provided for stopping the car”).

In this case plaintiff’s expert witness stated that wetness on the asphalt pavement would lengthen the stopping distance, and that the amount of water on the pavement was a factor he would consider in estimating the stopping distance. We think plaintiff could have cleared up the factors which gave the court concern; that it is not established the court abused its discretion, and we are not disposed to interfere with its rulings in the circumstances of this record. The issue does not reach whether the admission of the testimony would have constituted error.

The questions and the offers of proof above ruled involved only defendant Housh’s duty and ability to stop under the humanitarian doctrine. He contends plaintiff failed to make a humanitarian case on his duty to stop.

We have stated most of Thomas Beg-ley’s testimony on the issue.

Mr. Housh testified he was southbound in the outside lane and noticed the carryall in the inside lane, about 100 to 150 feet ahead of him, maybe a mile before thp collisions. The speed of the Pontiac increased or that of the carryall slackened, and by the time the two cars were a city block north of the collisions, the Pontiac had moved to within something like two car lengths of the carryall. These cars held their respective positions, traveling about 30 m. p. h., up to the impact between the carryall and Edsel. The first he knew of anything unusual was when he heard an impact and the carryall sort of rocked or bounced toward the outside lane. Housh applied his brakes hard and swerved to the right as far as he could, and the carryall “come around to me” when the Pontiac was moving about 10 m. p. h. The carryall was between him and the opening and he did not see the Edsel before hearing the impact but then saw it south of and against the carryall moving westwardly. The right front of the carryall, where the bumper fastens on, struck the left front wheel of the Pontiac. Both cars were moving when they collided in the outside southbound lane.

Photographs, admitted without objection, showing the cars after the collision and before being moved are to be the following effect: The Pontiac was at an angle slightly west of south, practically along the west edge of the pavement with its fender dented above its left front wheel. The carryall was crosswise of the southbound lanes, at a slight angle south of west, with about one-third of the front door and the front end in the outside southbound lane and with no damage showing on its right front fender and side. The Edsel was practically crosswise of the southbound lanes, with its damaged front bumper at or extending just beyond the west edge of the pavement.

Plaintiff was in no imminent peril so long as the carryall maintained its southbound course in the inside lane and the Pontiac maintained its course in the outside lane of this highway and a position of imminent peril within the humanitarian doctrine did not arise prior to when the carryall, after the collision with the Edsel, began to move toward the outside lane and the path of Housh’s automobile. Yarrington v. Lininger, Mo., 327 S.W.2d 104, 111 [11]; Ornder v. Childers, Mo., 327 S.W.2d 913, 917 [4]. Thomas Begley was not able to state where the Pontiac was when the first impact (the collision between the Edsel and the carryall) occurred, and this testimony of his did not establish that Housh had 117 feet (the shortest stopping distance with safety stated in plaintiff’s offers of proof) in which to stop after the carryall started its movement toward the lane in which the Pontiac was traveling.

Thomas Begley, asked on direct examination to give the time element between the first and second impacts, stated: “It seemed like hours, but I guess it was three or four seconds”; and then, at the suggestion of plaintiff’s counsel, stated that was his best estimate. When asked on cross-examination if it was not “a minute or a minute and a half before the accident” when he saw the Pontiac the second time, he stated: “No, I don’t think so.” “A minute is a long time, and it didn’t seem that long.” His attention was then called to a deposition he had given the Friday before wherein he stated his best estimate of the time elapsing between when he saw the Pontiac the second time and the collisions was a minute or a minute and a half; and he then testified at the trial: “Q That’s your best estimate? Minute or minute and a half? A Yes.”

The “rise” in the highway was 510 or 520 feet, according to plaintiff, from the point of the collisions, and the automobiles were moving about 30 m. p. h., or 44 feet a second. It is at once apparent that Thomas Begley’s “best estimate” that the time-element between when he saw the Pontiac the second time at said rise and the collisions was a “minute or minute and a half” is so contrary to physical laws and facts of universal knowledge as to have no probative value. Stonefield v. Flynn, Mo.App., 347 S.W.2d 472, 477 [5, 8], applying Kelly v. Terminal Rd. Ass’n, Mo., 315 S.W.2d 699, 702 [1, 2], His testimony that the time element between the first and second impacts “seemed like hours, but I guess it was three or four seconds” is to be and when taken with his above-discussed testimony becomes confusing and, as he stated, was a “guess” and not substantial probative evidence upon which to establish liability. Stonefield v. Flynn, supra. We conclude there was no substantial probative evidence, rising above speculation and conjecture, that when plaintiff came into a position of imminent peril of a collision between the carryall and the Pontiac defendant Housh then had 117 feet in which to stop and avoid such collision

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: RUARK, Presiding Judge.

license: Public Domain

text:
    Flora E. MORRISON, Plaintiff-Appellant, v. William J. ASHER and Walter Asher, Trustees under the Will of J. M. Asher, Deceased, Defendants-Respondents.
    No. 8139.
    Springfield Court of Appeals. Missouri.
    Nov. 1, 1962.

      Weldon W. Moore, Rolla, for plaintiff-appellant.
    Eugene E. Northern, Breuer, Northern & Crow, Rolla, for defendants-respondents.
   RUARK, Presiding Judge.

This is an appeal from-'the judgment of the circuit court approving a trustéés’ report and denying plaintiff’s petition for removal of said trustees. Such facts as we are able to glean from the transcript are as follows:

About 1949 J. M. Asher departed this life leaving a widow, Sarah, and four children, William,'Walter, Floyd and Flora. His last will and testament was admitted to probate in Phelps County. The pertinent portions of said will are as follows:

“SECOND
“I give, devise and bequeath to my son, Walter Asher, and to my son Wm. J. Asher, trustees of all my property that I may die seized of, be it real, personal or mixed and wheresoever located or situated, to have and to hold as such trustees for the use and benefit of my wife, Sarah E. Asher, and I direct that said- property shall be invested and the income from said investment be paid to my said wife, Sarah E. Asher, for and during her natural life and I direct that she shall be allowed to keep the home place where we now reside so long as she desires to do so. I further direct that in case it becomes necessary for my said trustees to do so that they shall have full power and authority to sell and convert any or all of my said property including real estate into cash and to pay to my said wife for her support and maintenance whatever sum or sums may be necessary for her care, support and comfort so long as she shall live and at her death, whatever shall be left remaining, I direct that it shall be divided equally among my four children to-wit: Walter Asher, William J. Asher, Flora E. Morrison and Henry Floyd Asher, share and share alike, and I further direct that if said property shall not have been converted into cash at the time of the death of my said wife, Sarah E. Asher, and after her death if said property cannot be divided equally in kind, then I give to my said trustees full power and authority to sell and convert said property into cash to the to the [sic] best advantage for my said estate and the proceeds to be divided among my said four children above named, share a,nd share alike, and to their heirs and assigns forever.”

Walter and William were appointed executors. Administration was had. Whether the widow’s allowances provided by statute at that time were made we do not know. On May 27, 1953, William and Walter as trustees gave receipt to themselves as executors for money and property in the total amount of $19,822.68. This consisted of:

The real estate mentioned in the inventory was located on the outskirts of the City of Rolla, and at some time after the settlor’s death its value was increased considerably because of a change in the routing of a highway. We find nothing in the record to indicate its value was increased by any activity of the trustees.

At some time prior to December 5, 1957, Flora filed suit in the Circuit Court of Phelps County praying for an order requiring the trustees to give bond. On the above date, the two trustees and their sister, Flora, entered into what is entitled a “memorandum agreement.” This agreement recited the fact that such suit had been filed and then provided that “in consideration of the mutual covenants between the parties” it is agreed: (1) The trustees, Walter and William, would, on or before January 1, 1958, furnish to Flora a detailed account in writing of their management of the trust estate from date of final settlement in probate court to and including the year 1956. (2) The trustees would thereafter, commencing with the year 1957, and on or before March 1 of each year, and for so long as said trust continued, furnish to Flora a detailed written account of their management of the trust estate, said written report to he mailed to a specifically stated address. (3) Flora would dismiss without prejudice her suit to require the trustees to provide for security. (4) Flora agreed to join in a deed in which the trustees proposed to sell a ■certain portion of the trust land (the “Null” tract hereinafter mentioned) for a price of not less than $15,000. This instrument shows the signatures and acknowledgement of Flora and her husband and the signatures and acknowledgement of William and Walter, the two trustees.

In 1961, plaintiff Flora filed the instant suit. The petition recites the facts of death and testacy of J. M. Asher, the final settlement in probate court, the taking over by the trustees, and the fact that Sarah E. Asher, the widow and primary beneficiary •of the trust, is still living. It then alleges that the present value of the estate is unknown, that petitioner has no knowledge or information as to the manner in which the trust estate is being handled, and that the trustees have sold some of the real estate and made loans to themselves in controversion of the purposes of the trust. It then relates the fact of the filing of the previous •suit and the subsequent “memorandum agreement” in respect to annual accounting hereinbefore mentioned and alleges that the •trustees have failed and refused to make .such accounting for all years after 1957.

For answer to plaintiff’s amended petition, the defendant trustees deny that plaintiff has no knowledge as to how the estate ■is being handled and state that she has been repeatedly advised that the records of all •transactions are available to her and that ■she has at all times been kept informed. Defendants further plead that they have offered to make loans of cash from the trust to plaintiff on the same terms they have made to themselves, but that on each loan they have required security, and that the plaintiff requested that she be permitted to borrow funds in equal amount as the trustees but that she refused to give security therefor. The trustees further plead that they at time of filing answer had on deposit the sum of $12,000 available for the care of the widow, Sarah, the beneficiary of said trust. Further in said answer they deny the execution of the memorandum agreement hereinbefore mentioned.

At the trial of the cause, plaintiff called the two trustees to the stand as witnesses and the defendants in turn called Flora. These were the only witnesses.

William on being presented with the “memorandum agreement” admitted his signature and his brother’s signature thereon, but stated that he did not remember any such agreement. Walter also admitted his signature but said he had no memory or record of such agreement and that his signature “could be easily copied.” We note further that the acknowledgement of William and Walter Asher to this memorandum agreement was taken by a member of the firm of lawyers which prepared the answer denying the execution of such agreement. We would not insinuate that the trustees might not have known that Flora had, or had procured, a copy of this agreement and therefore felt safe in denying its very existence. But we do suggest that the ignorance and complete lack of recollection of such trustees in respect to this agreement concerning their accounting obligations have displayed such faulty and failing memories which should be considered in determining whether they are capable of continuing in their duties; which necessarily must involve memory and recollection, investments, obligations, and other matters pertaining to the proper management of the trust.

The trustees acknowledge that they made no accounting or report to any court since the beginning of their trusteeship (until after trial of this case). They do say they made an annual statement or accounting, such being “strictly an expenditure and receipts balance sheet” which did not show the notes; but to whom, or for what purposes, or in what detail, we are unable to ascertain. Apparently they made one accounting (1957) to Flora Morrison, but they agree that they have made none to her since. One trustee stated that they had made a written accounting to a Mr. Don-nelly, but the record is silent as to who. this Mr. Donnelly was, whether he was a tax accountant, a friend, or an attorney for Flora in the first suit, which resulted in the 1957 accounting. It is evident that no regular annual reports or accounts have been made, either -to any court, or to any beneficiary of the trust except for the one report made to Flora after, or in connection with,’ the 1957 suit and agreement. The trustees do say that they invited Flora to come up and look over the records and notes, but she did not do so. She says she would not have understood them had she done so. There is evidence of hostility between at least one of the trustees and Flora. The trustees say that this is because she wanted to borrow money without security (the same as they had been doing?) and they refused because she would not provide security. We will not go into all the details, but it is obvious that there was considerable hostility, whatever the cause. The two suits reflect that.

In the latter part of 1957, the trustees sold a portion of the land (referred to as the “Null sale”) for $15,000. Shortly thereafter, trustee William borrowed from the estate the additional sum of $6500 at 4% interest. This appears to have been upon his own personal note. There is some rather garbled explanation ( ?) of this in the record, but in so far as we can find, this note was not secured. His wife did not sign the note ,and his own property was held by-the entirety. Sometime after the Null sale, the exact date of which we are not sure, trustee Walter borrowed the additional sum of $6,000 at 4% interest. He says he and his wife gave a deed of trust to secure this.

In September, 1961, the trustees sold another portion ,of the,-property (that;which. is referred to- as the “St. Louis sale”) for, the price of $20,000. Flora was not consulted about this transaction. Shortly after this sale, trustee William again borrowed a total of $2,000 (in three separate borrowings) in additional funds from the estate. This also was represented by personal, unsecured notes bearing interest at 4%. Trustee Walter paid up the interest then due on his $6500 note and borrowed an additional, sum making his total trust borrowings (to distinguish from notes which the trustees already owed the estate at time of final settlement in probate court) $10,500. This was evidenced by note in such amount bearing 4% interest, and Walter says it was secured by a deed of trust on his property.

Both of the real estate sales above referred to were made without first applying to a court of equity for direction or'authority to do so, or for approval thereafter.

William testified that at the time of the first sale the trustees had $239.00 in the bank. Walter testified, however, that the sale would not have been necessary had the children paid in the old notes (notes given prior to trusteeship). He agreed that the St. Louis sale was not necessary to provide care and maintenance for Sarah Asher, the widow and primary beneficiary. The trustees defend such sale, however, on the ground that it was a good business venture. Of this we are not able to judge; the rec-. ord does not provide adequate facts.

In making the St. Louis sale, the trustees paid a real estate commission in the amount of $1,000. Then they also paid themselves $500 apiece as commission for making such sale. Their services consisted of negotiating through the real estate agent, two short conferences with the purchasers, and having the county surveyor survey the property. There is no contention that this survey was at the personal expense of the trustees. From time to time ■ the trustees charged the trust estate other commissions in varying amounts.. As nearly a.s we can calqulate, each-of the trustees, charged or received as commissions a total of $1,286.00, or a total for the two of $2,-57Z.00. None of these commissions were submitted to or approved by any court.

During the period commencing with the trust, up to time of trial, the trustees made no effort to collect the principal or interest of any of the notes held by the estate, including their own, and no interest was paid except on the one occasion when Walter’s loan from the trustees was raised from $6500 to $10,500, at which time he said he paid up his interest ($660) on the money he borrowed from the estate after beginning of the trusteeship. This is all the interest which was collected.

As to collection of principal, William apparently paid a total of $250 on the principal of his 1945 (before trust) note during the trust period, and Walter paid a total of $150 on the principal of his 1948 (before trust) note. These personal notes of William and Walter went unrenewed, unsecured, and with no interest paid. The personal notes of Floyd and Flora have interest due from 1952. (They were evidently renewed at that time.) The trustees agreed no effort had been made to collect interest because, “it’s largely a case of paying interest to ourselves.” In all of the transactions heretofore mentioned, the trustees acted in concert or acquiesced in each other’s conduct.

As nearly as we can calculate from the meager showing made, at the time suit was brought to remove the trustees, William and Walter, together, owed the estate the total approximate sum of $26,500 plus accumulated, interest (at 4%) on all their notes from the date of making same, some as far back as the 1940’s (excepting the $660 which we have heretofore mentioned as having been paid up by Walter when he increased his note to $10,500). We have not attempted to calculate the total interest due. And, again as nearly as we can gather from the record, at that time they had as trust assets, exclusive of their own personal (delinquent) notes, approximately the sum of $12,000" in a bank account “just laying there” (evidently not drawing any interest), notes from other remaindermen in the approximate total sum of $2600 plus interest, plus one remaining tract of real estate, which so far as we can find has never been appraised except in the general appraisement of real estate made in the probate administration in about or prior to 1952.

On March 14, 1962, after having heard the evidence we have heretofore attempted to collate, the trial court entered its order taking the case under advisement until March 24 “on condition that trust estate be brought up to currency with respect to payment of all back interest and currency with respect to date of outstanding notes and currency with respect to good and sufficient security for all indebtedness to the trust estate. This accounting to be filed herein and a copy presented to attorney for plaintiff on or before March 23, 1962.”

On March 23, 1962, the trustees filed their “report accounting for all Income and Expenditures since their last report dated December 31, 1961.” (We have already indicated that the evidence does not show any previous report and accounting, or approval of any character of report.) In this after-trial report they show collections of interest on all the notes, including their own, and their report shows a note inventory as follows:

Floyd, 4%, 4/1/52 (a renewal), principal sum due $2,045.32, unsecured;
Flora, 4%, 12/1/52 (a renewal), principal sum due $618.33, unsecured;
Walter, 4%, 5/8/48, principal sum due $3,170.50, unsecured;
. William J., 4%, 10/27/45, principal sum due $3,694.41, unsecured;
Walter and wife, 4%, 9/13/61, $10,-500.00, secured by deed of trust;
William J. and Mary Asher, 4%, 3J23/62 (after trial of the case), $9,406.28, secured by deed of trust.

The report inventory also includes a tract described as a fractional part of Railroad Lots 97 and 120 with a statement that “No appraisement has been made since the administration of the estate of J. M. Asher, deceased, in 1952.”

On March 24, the court by its judgment approved the trustees’ report and denied the petition for removal of the trustees, but did order them to file annual reports.

We think the bare statement of facts above set forth makes it self-evident why we cannot agree with the judgment of the trial court.

As we view it, J. M. Asher made this will and created this trust with the intent, first and foremost, of providing for his widow. There does not appear to be any intention on his part to give the two trustees carte blanche in the use and enjoyment of the funds which he (no doubt with Sarah’s help) had accumulated, nor did he expect his children to reach with hungry hands for such while his widow still lived. The safety of this trust fund is the “first care of the law.” Ford v. Boyd, Mo.App., 298 S.W.2d 501.

We have grave doubts as to whether the trustees had authority to make the sales of real estate which they did except by and with court authority, especially the second or “St. Louis” sale, for it is obvious that such was not then “necessary” for the support or maintenance of Sarah. A trustee does not have unlimited authority in disposing of assets or in making investments. He does not have the same freedom with which he might invest his own funds, St. Louis Union Trust Co. v. Toberman, 235 Mo.App. 559, 140 S.W.2d 68, and where the sale of real estate is not expressly or impliedly authorized by the charter instrument, authority of the court should be sought to make such sale. 54 Am.Jur., § 447, p. 354; 90 C.J.S. Trusts § 287, p. 417; Bogert, Trusts and Trustees 2d Ed., § 742, p. 579. However, we do not find it necessary to rule on such question in deciding whether or not the trustees should be removed.

A trustee is a fiduciary of the highest order. He is required to observe meticulously the fiduciary relationship, to exercise utmost good faith in handling the funds in his hands, and in all respects to exercise a high standard of conduct and fidelity in respect to administration of his trust. Bogert, Trusts and Trustees 2d Ed., § 543, pp. 473, 474; Bakewell v. Mercantile Trust Co., Mo., 319 S.W.2d 600; White v. Hughes, Mo.App., 88 S.W.2d 268. And in exercising his authority, even though given the widest discretion by the instrument, he is not authorized to dispense with the requirements of care, skill and diversification, Vest v. Bialson, 365 Mo. 1103, 293 S.W.2d 369, 63 A.L.R.2d 504, but is under the duty to exercise the care, skill and diligence which a prudent man would exercise in the management of the funds of others. Restatement, Trusts 2d, § 227; Bogert, Trusts and Trustees 2d Ed., § 639, p. 590. And where the trustee has failed to do what the charter of his powers, the trust instrument, directs him to do, the burden is upon him to show absence of facts which make for bad faith. All doubts will be resolved against him. Bogert, Trusts and Trustees 2d Ed., § 962, p. 11; Scott on Trusts 2d, § 172, p. 919; Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886; Covey v. Pierce, 229 Mo.App., 424, 82 S.W.2d 592.

As we view it, the trustees stood in a fiduciary capacity first to the primary beneficiary, to wit, the widow, Sarah, and secondly to the secondary beneficiaries or re-maindermen. See Buder v. Franz (8th Cir.), 27 F.2d 101; In re Buder, 358 Mo. 796, 217 S.W.2d 563. The income from the estate belonged to the widow, Sarah, as a matter of right. It was hers to spend or give away as she so chose. We cannot gather from the will any intention on the settlor’s part to leave his helpmate dependent on the whims of others for that which was justly hers. She was entitled to have the assets invested at a proper (and secured) rate of interest and to receive that income. Beyond that she was entitled to receive whatever was “necessary” for her maintenance from the corpus assets. The remaindermen were entitled not to have the corpus depleted or endangered to any further extent than became necessary for the support and maintenance of Sarah. We gather from the transcript that various of the children were paid some sums as “keep” for Sarah; also, that the trustees paid for her a hospital bill. (She had been involved in an automobile accident.) These payments must have necessarily come in greater portion from the corpus, because the trustees had pre-empted and were using a goodly portion of the assets and were not even paying the (low) interest for its use.

A trustee owes the trust his utmost loyalty. He cannot permit himself to be put in a position adverse to his trust or his cestui. Under ordinary circumstances he should not deal with himself as an individual. Restatement, Trusts 2d, § 170(1); Bogert, Trusts and Trustees 2d Ed., § 527, p. 366; 54 Am.Jur., § 314, p. 249, § 315, p. 250; Kimpton v. Spellman, 351 Mo. 674, 173 S.W.2d 886; Wiegand v. Woerner, 155 Mo.App. 227, 134 S.W. 596; Powers v. Johnson, Mo.App., 306 S.W.2d 616(13); In re Skinner’s Estate, 215 Iowa 1021, 247 N.W. 484; Carrier v. Carrier, 226 N.Y. 114, 123 N.E. 135. We think it is manifest that one cannot, at least without specific authority from the trust instrument or without permission from and supervision by a court of equity, borrow from himself as trustee without placing himself in an adverse position which could dilute his loyalty. For instance, the trustee as lender might be tempted to loan funds at a low rate of interest, or without adequate security, or he might be tempted not to require himself as borrower to pay the interest when it was due. The dilution of loyalty is apparent in this case.

As to commissions, where neither the trust instrument nor statute provides for any certain amount, percentage or method of determining trustees’ fees, and there is no agreement in respect to such, it is proper to submit the amount of commissions of the trustees to a court of equity for approval and allowance. Bolles v. Boatmen’s Nat. Bank of St. Louis, 363 Mo. 949, 255 S.W.2d 725(18); Commerce Trust Company v. Aylward (8th Cir.), 145 F.2d 113, 115(12). The trustees do not have the legal authority to fix the amount which they shall take for their own services. In re Locarno Building & Loan Ass’n., 127 N.J.Eq. 509, 13 A.2d 791. Also, in ordinary circumstances, and in the absence of direction or authority in the trust instrument, trustees’ commissions should be based upon the amount of yearly income received and paid out, and not based upon the handling of the corpus except by and with court approval after a showing of circumstances justifying such. Bogert, Trusts and Trustees 2d Ed., § 975, p. 283; In re Buder, 358 Mo. 796, 217 S.W.2d 563, 573, and cases cited 1. c. 573; In re Franz’ Estate, 359 Mo. 362, 221 S.W.2d 739, 741, 742; see Fiske v. Buder (8th Cir.), 125 F.2d 841. We look with jaundiced eye upon the act of the trustees in paying themselves a commission, along with one to the real estate broker, for the St. Louis sale. It is a ground for removal of a trustee that he overcharged for his services. Bogert, Trusts and Trustees 2d Ed., § 527, p. 371; Barkley Cemetery Ass’n. v. McCune, 119 Mo.App. 349, 95 S.W. 295. The record does not furnish us enough information to be able to state whether or not the other commissions were justified. It is doubtful if they came from collected income. It is frequently stated that a trustee who breaks faith with his trust may be denied all or part of his compensation for services. Bogert, Trusts and Trustees 2d Ed., § 980, pp. 404, 405; Lipic v. Wheeler, 362 Mo. 499, 242 S.W.2d 43; Wiegand v. Woerner, 155 Mo.App. 227, 134 S.W. 596; Harvey v. Schwettman, Mo.App., 180 S.W. 413; Folk v. Wind, 124 Mo.App. 577, 102 S.W. 1, 3; Sebree v. Rosen, Mo., 349 S.W.2d 865, 890(48).

Nor do we understand why the trustees have failed to render an annual accounting to any court or to the cestui que trust. A previous suit had brought focus on their duty to do so, and they had signed a written agreement that such would be done. ’Two faulty memories are no excuse. The cestui que trust is entitled to a full and accurate record and accounting of the trustees’ stewardship. Restatement, Trusts 2d, § 172; 54 Am.Jur., § 497, pp. 396 et seq.; 90 ■C.J.S. Trusts §§ 377, et seq.

In this case the trustees acted in concert, or at least the acts of one were .acquiesced in by the other. Both must bear ■the responsibility of the acts, or failure to .■act, of each. Harvey v. Schwettman, Mo.App., 180 S.W. 413; Denny v. Guyton, 331 Mo. 1115, 57 S.W.2d 415(16).

We realize that the power of the •court to remove a trustee should be used ■sparingly and that before it is exercised there should be such misconduct as to evidence want of capacity or fidelity which has, or might likely, put the trust in jeopardy. State ex rel. Caulfield v. Sartorius, 344 Mo. 919, 130 S.W.2d 541; Sternberg v. St. Louis Union Trust Co., D.C., 66 F.Supp. 23; Smith v. Board of Pensions of The Methodist Church, Inc., D.C.,. 54 F.Supp. 224. We also consider that mere hostility alone toward the cestuis or one'o’f the cestuis is not usually, .in and of itself, sufficient •ground for removal. Shelton v. McHaney, 343 Mo. 119, 119 S.W.2d 951; Sternberg v. St. Louis Union Trust Co., 8 Cir., 163 F.2d 714. But, hostility coupled with other conduct, such as questionable investments, is ■ground for removal. Vest v. Bialson, 365 Mo. 1103, 293 S.W.2d 369, 63 A.L.R.2d 504; Gaston v. Hayden, 98 Mo.App. 683, 73 S.W. 938.

Without attempting to go further into detail, we are of the opinion that the •trustees do not seem to have a proper conception of their duties under this trust; that they appear to regard the trust assets as their own property; that they have demonstrated a lack of capacity or fidelity for ■the positions which they hold; and that •their continuance in such positions might further corrupt the purposes of the trust ■and jeopardize its assets. By this statement we do not mean to say, or to imply, that the trustees have been personally dishonest. Their incapacity and infidelity is a legal result, arising no doubt from an inability to comprehend their joint position in fiduciary capacity.

It is our opinion that the judgment of the court in approving the report and refusing to remove the defendants should be reversed. The trustees should be removed and they should be required to render accounting for the whole period of their trusteeship. In such accounting they should be charged with interest on all loans made to themselves during the trust period at the going and market rate of interest for loans of similar character and security at the time such self-loans were made; and they should also be required to prove the basis of charge made for any commission paid unto themselves.

The judgment is reversed with directions to remove the trustees and to appoint a qualified substitute or substitutes, and for further proceedings not inconsistent with this opinion.

STONE and McDOWELL, JJ., concur.


text:
    STATE of Missouri ex rel. James Everett BALLEW, Relator, v. The Honorable James P. HAWKINS, Judge of the Circuit Court of Hickory County, Missouri, and of the 30th Judicial Circuit, Respondent.
    No. 8101.
    Springfield Court of Appeals. Missouri.
    Oct. 11, 1962.
    Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 19, 1962.

      Allen, Woolsey & Fisher, Russell G. Clark, Springfield, for relator.
    George H. Miller, Sedalia, for respondent.
   RUARK, Presiding Judge.

This is prohibition. We know of no way to convey a better understanding of the mare’s nest in which we are entangled than to relate the facts chronologically.

On April 28, 1960, plaintiff Bake filed suit against defendant Ballew (the relator herein) in the Circuit Court of Hickory County. The petition was a suit for damages based upon the negligent killing of the wife of plaintiff on May 15, 1959. Summons on said suit was issued May 7, 1960.

Defendant Ballew lived in Dallas County, which adjoins Hickory County and is in the same circuit. Prior to filing suit plaintiff’s counsel inquired of defendant as to his residence and defendant told him (as the fact appears) that he, defendant, lived in Buffalo which is in Dallas County; However, plaintiff had information that every two or three weeks the defendant, who was a resort operator, drove through Hickory County on his way to purchase live minnows in yet another county. Plaintiff’s counsel requested the sheriff to get service on Ballew when he came through the county.

There the matter stood. Service was not obtained in the manner plaintiff had hoped,, and on May 14, 1960, the plaintiff filed suit on the same cause of action in Dallas County and there obtained service on the-defendant. In the Dallas County Case (on June 8), defendant (the relator herein)entered by the filing of motion to dismiss- and motion for costs.

In the meantime, the case which had' been filed in Hickory County had remained’ in suspended animation. Time for service-of the summons passed and no request was-made for a 90-day extension under Civil Rule 54.10(d), V.A.M.R. Finally, on September 12, the respondent judge of Hickory County called his docket and made an order, “Dismissed by Court,” on his docket sheet. This was sometime in the forenoon. The dismissal so entered was apparently on the court’s own motion. It does not appear that counsel were present. Sometime thereafter, possibly during the noon hour of the same day, the sheriff found defendant Ballew on a hunting trip in Hickory County and there served him with the summons which he had been carrying. When court resumed session in the afternoon, his attention was called to this purported service and he made this entry, ■¾⅝§⅞⅞⅞⅜⅜ Gcur-I“ In other words, he drew two lines through the docket entry which he had made that morning.

On October 3, the Circuit Court of Dallas County overruled defendant’s motion for costs and motion to dismiss.

On October 7, 1960, the defendant went into the Circuit Court of Hickory County and filed his motion to dismiss. This motion stated that it was a special appearance for the purpose of presenting said motion and that defendant did not thereby enter a general appearance. The basis of the motion was that plaintiff had theretofore filed suit and obtained service on the defendant in Dallas County; that the case was at issue and set for trial in Dallas County on December 14, 1960; that the two suits involved the same persons, the same subject matter, and the same issues. So far as we are able to find, this motion was never heard or ruled.

On October 20, 1960, we shift back to Dallas County. According to the docket entry, the plaintiff dismissed his suit “without prejudice.”

Now back to Hickory County. On January 13, 1961, defendant filed a “motion by way of special appearance” in which he appeared specially and attempted again to reserve general appearance. The grounds of this motion were (1) no jurisdiction over the defendant because there had been no valid service of process and (2) no jurisdiction because the suit was not commenced within one year and was therefore barred by the statute of limitations.

On April 3, the court overruled this motion to dismiss. The docket entry shows, “Motion to dismiss overruled on ground that order of dismissal of 9-12/60 was a nullity. Set for trial June 13, 1961 at 9 A. M.”

On April 12, defendant filed answer which reasserted his contention that the court had no jurisdiction because (1) there had been no service of process and (2) the cause was barred by the statute of limitations. The answer further pleaded to the merits.

On June 13, defendant filed motion for leave to file third party petition. This motion was sustained and summons was ordered.

On October 26, a motion to dismiss the third party petition was sustained.

On November 7, defendant filed motion for summary judgment, asserting as grounds (1) no jurisdiction over the defendant in the Hickory County court because at the time of alleged service of summons there was no suit pending; (2) no jurisdiction over the subject matter because the suit was not commenced within one year and was therefore barred. At the time suit was filed and summons issued, the plaintiff’s attorney knew defendant was not a resident of Hickory County but simply relied upon “happenstance and luck” to obtain service and that such was not a commencement of the action. Also, (3) that no valid service was had because summons had not been served until September 12.

On January 8, 1962, the court overruled the motion for summary judgment, and there is no dispute that respondent will proceed to trial of the Hickory County case unless prohibited.

We will attempt to pull the sticks out of this brush pile one by one. First, what was the effect of the dismissal on September 12 and the subsequent striking of such entry? ‘ Relator says that the dismissal finally disposed of the case. Respondent says it was a nullity. Petition had been filed and summons issued hut no service had been obtained. No other or alias summons had been requested. The petition was simply lying “in hibernation” but it showed as a pending case on the court’s docket.

It has been repeatedly affirmed that the courts have the inherent power to dismiss because of failure to prosecute with due diligence. Doughty v. Terminal R. Ass’n. of St. Louis, Mo., 291 S.W.2d 119; City of Jefferson v. Capital City Oil Co., Mo.App., 286 S.W.2d 65; Wiles-Chipman Lumber Co. v. Pieper, Mo.App., 176 S.W.2d 50, 52. And this may be done on the court’s own motion. Snyder v. Christie, Mo.App., 272 S.W.2d 27; M. Salle for Use and Benefit of Mandel v. Holland Furnace Co., Mo., 337 S.W.2d 87. However, in the absence of notice, the dismissal is without prejudice. In Texas-Western Co. v. Giesecke, Mo.App., 342 S.W.2d 266, the court stated that a dismissal for want of service of process was unjustified and unwarranted, but it did not hold the dismissal to be void. In considering the question, we have determined that the dismissal for want of prosecution was within the power of the court and was not void. It was not a final judgment disposing' of the rights of the parties (Harrison v. Weisbrod, Mo.App., 358 S.W.2d 277, 282; Bindley v. Metropolitan Life Ins. Corp., Mo., 335 S.W.2d 64, 70). Also, it appears to have been on the judge’s dockét call and naught appears to show that this was not the regular and established practice of which the attorneys should have taken notice. We should not presume lack of jurisdiction. Cusack v. Green, Mo.App., 252 S.W.2d 633, 635; Hendershot v. Minich, Mo., 297 S.W.2d 403, 410; Gomez v. Gomez, Mo., 336 S.W.2d 656(6).

This presents the problem of the later “entry” marking out the entry of dismissal. Relator says this was a nullity. Respondent takes the position that it was simply the-removal of a nullity. We agree that a court has the inherent power to correct clerical errors in its record. Robinson Lumber Co. v. Hazel, Mo.App., 271 S.W.2d. 610; Clayton v. Holland Furnace Co., Mo.App., 300 S.W.2d 824; York v. Stigall, 204 Mo. 407, 102 S.W. 987. But the action of the court does not appear to have been unintentional. It was not the result of inadvertence or misprision. The judge meant to make the entry which he did.

A court speaks through its records. State ex rel. Gentry v. Westhues, 315 Mo. 672, 286 S.W. 396(7); In re Wakefield, Mo.App., 274 S.W.2d 345; 365 Mo. 415, 283 S.W.2d 467(3). And since we have said’ that the entry so drawn through with lines was not an unintentional act or an inadvertence, we must interpret and give some meaning to the marking through of the en-' try. The court retains control over its-judgments for a period of thirty days (Civil Rule 75.01, V.A.M.R.) and, as we view it, had the power, or jurisdiction, to set aside - or vacate the nonsuit during that period. Harrison v. Weisbrod, Mo.App., 358 S.W.2d 277; Arkansas-Missouri Power Co. v. Hamlin, Mo.App., 288 S.W.2d 14, 19; Mid-States Equipment Corp. v. Hobart Welders Sales & Service, Mo.App., 233 S.W.2d 757, 758; Duenke v. St. Louis County, 358 Mo. 91, 213 S.W.2d 492. And since the idea in-drawing through the previous entry was. with a view of doing away with it, the “entry,” consisting of'two parallel lines drawn-through the previous entry, should, we believe, be treated as the vacation of the order of dismissal. But under either view of the whole proceeding in respect to this dismissal (and remembering this is prohibition, not appeal), it appears that the parties, were back where they started from earlier in the day in so far as the court’s records, were concerned.

A more serious question is: Was the service of summons (issued on May 7), which was had on the defendant ■September 12, such as to confer jurisdiction of defendant's person? Civil Rule 54.10, V.A.M.R., provides that the officer — shall make return of service promptly and in any event within the time during which defendant must plead. If process cannot be served, it shall be returned to the' court within thirty days after date of issue. It is provided, however, that time for service may be extended up to ninety days from date of issue by order of the court or judge to which it is returnable.

A summons is a process, a means of 'bringing the defendant into court so that the court acquires jurisdiction of his person. It is wholly a statutory matter and, unless the defendant is served in the manner provided by law, the court is without authority to proceed. State ex rel. Minihan v. Aronson, 350 Mo. 309, 165 S.W.2d 404. It is the generally accepted rule that a writ or process which has not been served expires and' becomes functus officio on the return day thereof and thereafter confers no authority, unless by virtue of statute, or of some act of the court itself, the authority is extended.

Missouri seems to follow the majority rule. Thus, in Henneke v. Strack, Mo.App., 101 S.W.2d 743, it was claimed that a summons issued on December 29, 1933, retum.able to a term to begin January 8, 1934, was served on April 30, 1934. The court stated, 1.x. 746:

* * * Service of the writ after "beginning of the term to which it is returnable is no service. The writ, in ■such case, is functus officio, dead. 50 C.J. 481; 21 R.C.L. 1273. Therefore, if the facts are as claimed by appellant, the judgment is void for lack of jurisdiction to render it.
“Appellant could have appeared at September term, 1934, specially, to challenge jurisdiction, and would not have conferred any jurisdiction by so doing. State v. Wright (Mo.App.), 88 S.W.2d 427, loc. cit. 431. Having failed to do so, however, she is not precluded from raising the question later.” (See also Henman v. Westheimer, 110 Mo.App. 191, 85 S.W. 101.)

The only conclusion we can come to is that the dog-eared summons had become functus officio prior to September 12, was no longer “process,” and had no more effect in obtaining personal jurisdiction of the defendant than had it been a belated valentine handed to the defendant by the sheriff. The lack of personal jurisdiction because of failure to meet the requirements for obtaining the same would render any judgment or action of the court, in respect to subjecting the defendant to liability, void ab initio. Orrick v. Orrick, Mo.App., 233 S.W.2d 826, 829.

Of what effect was relator’s motion to dismiss (of October 7,1960) for the reason that Dallas County had acquired jurisdiction? At the time of the motion (and while the instant case was lying dormant and without service), petition had been filed in the Circuit Court of Dallas County, summons had been served, and defendant had appeared. Clearly the Circuit Court of Dallas County had acquired exclusive jurisdiction and. the Circuit Court of Hickory County had no jurisdiction to- proceed with the case. State ex rel. Dunphy v. Eversole, Mo.App., 339 S.W.2d 506; Cutten v. Latshaw, Mo.App., 344 S.W.2d 257, 259; In re Gaebler’s Estate, Mo.App., 248 S.W.2d 12, 16; State ex rel. Nelson v. Williams, Mo.App., 249 S.W.2d 506; State ex rel. Davis v. Ellison, 276 Mo. 642, 208 S.W. 439, 441; State ex rel. Fromme v. Harris, Mo.App., 194 S.W.2d 932; State ex rel. Nicholson v. McLaughlin, Mo.App., 170 S.W.2d 705. The relator should have insisted upon a hearing and a ruling on this motion, and the court should have sustained the motion, in the light of the facts as they now appear.

But did the filing of this motion e»-ter the defendant’s appearance to the Hickory County case? Respondent argues that it did. His theory is that relator, by coming in, even by special and limited appearance for that purpose, and requesting the court to make an order beneficial to him in reference to jurisdiction of the subject matter, submitted his person to the jurisdiction of the court.

The theory of the cases, at least the older cases, was that a challenge to the jurisdiction of the subject matter conferred jurisdiction over the person, this because the very act of coming in and requesting the court to make or render any ruling which might be of benefit to the movant amounts to a submission of the person to the jurisdiction of court. Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92.

But the new code has considerably lightened the burden of one who wishes to question the jurisdiction. A party may now join his objection to jurisdiction with any other motion now available, and a pleading over does not waive any objection properly raised by motion. See Civil Rule 55.37, V.A.M.R. (§ 509.340 VA.M.S.). And under Civil Rule 55.31, V.A.M.R. (§ 509.290 V.A.M.S.), objections to jurisdiction of the subject matter or person may be raised by motion whether or not the objections may appear from the pleadings and other papers filed in the cause.

Even under the old rule, an appearance “specially” to question the right of the court to proceed with the cause, without requesting some other or affirmative relief, was not considered to be a submission of the person to the jurisdiction. Crabtree v. Aetna Life Ins. Co, 341 Mo. 1173, 111 S.W.2d 103, 109; Maxwell v. DeLong (W.D.Mo.), 107 F.Supp. 166; see also State ex rel. Kansas City Public Service Co. v. Waltner, 350 Mo. 1021, 169 S.W.2d 697; Mertens v. McMahon, 334 Mo. 175, 66 S.W.2d 127, 93 A.L.R. 1285; Mo.L.Rev. 424 (1949).

In Beckmann v. Beckmann, Mo.App, 211 S.W.2d 536, 539; 358 Mo. 1029, 218 S.W.2d 566, which seemed to involve both jurisdiction of the res and jurisdiction of the person, it was held that a special appearance, properly interposed and limited, does not confer on the court jurisdiction of the person or waive jurisdictional defects.

In State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62, the court said, 1. c. 66:

“We need not decide whether there may ever be a waiver of improper venue by a failure to raise the objection by motion in accordance with § 509.340. We do think, however, and so hold, that in order to waive an existing want of jurisdiction over the person of the defendant, there must be some overt act constituting a general appearance, by virtue of which the defendant submits himself or itself to the jurisdiction of the court; * *

Certainly the defendant did not intend by such motion to enter his appearance or to do other than file a pleading requesting the court not to proceed with the cause because of lack of jurisdiction to so proceed. And, if the evidence showed the same case to have been filed, served, pending, and at issue in another court (as it now appears), there was naught which the Circuit Court of Hickory County could do but abate the action then before it. In this regard and as pertaining to this situation, we treat and ■consider the jurisdiction in respect to the right to proceed as being equivalent to jurisdiction of the subject matter. (See State ex rel. Lambert v. Flynn, 348 Mo. 525, 154 S.W.2d 52, 57.) We are of the opinion that the defendant appeared only to the extent of requesting determination of the right of the court to proceed with the case, and no further. To hold otherwise would be to open the door to a vitiation of the intent and purpose of our process and venue statutes by means of bringing suits, getting the defendant into court in order to protest jurisdiction to proceed, and then fastening upon him the grip of his own unintended waiver. We think this is contrary to the purposes of the code.

What effect did the subsequent pleadings have? It will be recalled that on January 13, 1961, the defendant, relator here, filed his motion to dismiss, wherein he again asserted that he was making special and limited appearance. In this motion he urged dismissal on the grounds that (1) there was no jurisdiction over the person because there had been no valid service of process and (2) the cause was (then) barred by the statute of limitations inasmuch as it hr.d not been commenced within one year. At that time the suit in Dallas County was no longer pending (the plaintiff therein having dismissed on October 20). This motion by relator was overruled, and then followed the pleadings heretofore mentioned.

We think this motion plainly reserved jurisdiction. It was only an alternative entry of appearance and the subsequent pleadings did not constitute an abandonment of the reservation. The only question we have is whether the defense of no jurisdiction of the person was then available to the defendant and whether he had waived the benefit of such motion by operation of Civil Rule 55.37, V.A.M.R., which provides that a party waives all objections and other matters then available to him by motion by failure to assert the same, when he files his original motion going to the right of the court to proceed. Civil Rule 55.36, V.A.M. R. (§ 509.330 V.A.M.S.) provides that all motions shall be made “within the time allowed for responding to the opposing party’s pleading.” (Darr v. Darr, Mo.App., 287 S.W.2d 118(2).)

As to the pleading of no jurisdiction to proceed in the case: We have already said that this motion was not an entry of appearance which accomplished surrender of jurisdiction of the person. The defendant could have stayed out completely and attacked as void any judgment rendered in the Hickory County case. If the court had, as we have said, no jurisdiction to proceed in the case, then it had no jurisdiction to entertain any further motions or pleadings which might have otherwise affected the proceedings. We think Civil Rule 55.37 was not intended to apply to situations where the court had no such jurisdiction, and that a defendant is not required to make all of the pleadings which he might otherwise make along with a simple suggestion of no jurisdiction. For that reason we are constrained to hold that the defendant did not waive the defense of no personal jurisdiction by failing to assert it along with his suggestion of no jurisdiction to proceed with the cause.

This being the case, the court never did acquire, and does not now have, jurisdiction of the person of the defendant, and the respondent judge is now acting, and threatens to act, beyond his jurisdiction by continuing to proceed against him. Prohibition is the proper remedy. State ex rel. Boll v. Weinstein, supra. If this is true, and we so hold, then the question of whether the statute of limitations is applicable becomes a moot question in this case. It is the policy of this court to pass upon only such questions as may be necessary to determine the issue before it. We have said that the court is proceeding without jurisdiction of the person of this defendant. We think this is sufficient for the purposes of this case. It is our judgment that the preliminary writ should be made absolute. It is so ordered.

STONE and McDOWELL, JJ., concur.

      . Levee Dist. No. 4 of Dunklin County v. Small, Mo.App., 281 S.W.2d 614; Crispin v. St. Louis Public Service Co., 361 Mo. 866, 237 S.W.2d 153; Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387.

      . 42 Am.Jur., Process, § 26, p. 26; 72 C.J.S. Process § 33a, p. 1040; Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215; Hamlen & Son v. Allen, 186 Ark. 1104, 57 S.W.2d 1046; Hall v. Ocean Accident & Guarantee Corp., Ltd., 122 W.Va. 188, 9 S.E.2d 45; Harrison v. Whiteley, Tex.Com.App., 6 S.W.2d 89; Murphree v. International Shoe Co., 246 Ala. 384, 20 So.2d 782; Lemothe v. Cimbalista, Tex., 236 S.W.2d 681; Leach v. City of Orange, Tex.Civ.App., 46 S.W.2d 1047; Compare Kunzelmann v. Duval, 61 Ohio App. 360, 22 N.E.2d 632.

      . State ex rel. Auchineloss, Parker & Red-path v. Harris, 349 Mo. 190, 159 S.W. 2d 799; State ex rel. Pacific Mut. Life Ins. Oo. v. Grimm, 239 Mo. 135, 143 S.W. 483; Moseley v. Victory Life Ins. Co., 226 Mo.App. 566, 45 S.W.2d 119; See Davis v. Meming, Mo.App, 253 S.W. 798; Merchants’ Savings & Loan Ass’n. of Kansas City v. Ancona Realty Co, 229 Mo.App. 714, 78 S.W.2d 470.


author: STONE, Judge.

text:
    Ray SIMMONS, a minor, by his next friend, Vivian V. Simmons, Plaintiff-Respondent, v. Leonard L. JONES, Defendant-Appellant.
    No. 8083.
    Springfield Court of Appeals. Missouri.
    Oct. 31, 1962.

      Frank R. Birkhead, Carthage, for defendant-appellant.
    Frieze & Crandall, Carthage, for plaintiff-respondent.
   STONE, Judge.

In this jury-tried action for damages-.on account of personal injuries alleged to-have been sustained in a rear-end vehicular collision, plaintiff, Ray Simmons, obtained a verdict for compensatory damages of $5,-000 and for punitive damages of $1,000; and, from the judgment entered thereon, defendant, Leonard L. Jones, appeals. It should be recorded preliminarily that counsel, who had conducted the trial on defendant’s behalf and had prepared his appellate brief, withdrew from the case without explanation four days before the date set for argument and submission in this court. Thereafter, in keeping with the highest traditions of professional service, Frank R. Birkhead, Esq., quickly stepped into the breach and ably presented defendant’s cause on the brief theretofore filed. To clear away the procedural underbrush, we also observe that, since defendant’s-appellant’s motion for extension of time for filing the transcript on appeal was sustained on July 18, 1962, it necessarily follows that plaintiff’s-respondent’s motion to dismiss the appeal, predicated on defendant’s failure to file the transcript within the time permitted by V.A.M.R. Rules 82.18 and 82.19, should be and accordingly is overruled.

Since defendant’s liability for the accident has not been questioned seriously and since neither of his two points on appeal goes to the issue of liability, a brief factual statement concerning the collision will suffice. About 8:15 A.M. on Saturday, October 8, 1960, plaintiff (then twenty days short of his twentieth birthday), alone in his father’s 1955 Ford tudor sedan, was traveling north on Garrison Avenue in Carthage, Missouri. As he approached the intersection of Garrison and 4th Street, the automatic traffic control signal light at that intersection changed to red or “stop” for northbound traffic on Garrison and, in obedience thereto, plaintiff stopped. Some five to twenty seconds later (depending upon whose estimate of time is accepted), the automobile driven by plaintiff was struck in the rear by a northbound 1958 Chevrolet automobile then being driven by defendant at a speed of twenty-five to thirty miles per hour. At the moment of collision, plaintiff had his foot on the brake pedal but, even so, the impact forced his automobile forward ten to fifteen feet. In plaintiff’s words, the impact “knocked me down in the seat” — “I went over to the right side . . . down to the side, and I caught my (left) hand on the floor.” Defendant, forty-nine years of age, who had gone off duty at a nearby chemical plant at 7 AM.., made the familiar admission of having had two beers [cf. Jones v. Fritz, Mo.App., 353 S.W.2d 393, 394] and tendered the ready explanation that, at the time of accident, he was “coming up town” for cigarettes before going home. But, without reciting the ugly details pertaining to defendant’s condition and conduct immediately following the accident, it will suffice to say that plaintiff’s evidence supported the pleaded charge that defendant “was highly intoxicated and in a drunken condition.”

Defendant’s first point is “that the court erred in admitting evidence of life expectancy and instructing on future losses, without substantial evidence of permanency.” It may be conceded that, if proper disposition of this point necessitated determination of whether or not instant plaintiff made a submissible showing of permanent injury, we would be confronted with a question close and vexing on the medical evidence presented, although resolution of the question would be governed by a legal principle frequently enunciated with definitive clarity, i. e., that, even though the permanency of an injury need not be demonstrated with absolute certainty, it may not be found on the basis of conjecture, likelihood or even probability. State ex rel. Kansas City Public Service Co. v. Shain, 350 Mo. 316, 323, 165 S.W.2d 428, 430(2); Roderick v. St. Louis Southwestern Ry. Co., Mo., 299 S.W.2d 422, 425(2); Kiger v. Terminal R. Ass’n. of St. Louis, Mo., 311 S.W.2d 5, 14(17); Fann v. Farmer, Mo.App., 289 S.W.2d 144, 150(13); Berry v. McDaniel, Mo.App., 269 S.W.2d 666, 673(13).

However, as the language of the quoted point suggests and recognizes, in his instruction 1 (the only instruction on compensatory damages) instant plaintiff did not submit or seek to recover damages for permanent injury [contrast Leavitt v. St. Louis Public Service Co., Mo.App., 340 S.W.2d 131, 139-141; Heibel v. Robison, Mo.App., 316 S.W.2d 238, 241-242; Brown v. Kansas City, Mo.App., 311 S.W.2d 360] but rather (to borrow the terse terminology of the quoted point) for "future losses” or (to paraphrase the language of instruction 1) for such future pain and suffering and such future loss of earnings (after plaintiff had attained the age of twenty-one years) as the jurors might find from the evidence that plaintiff was reasonably certain to sustain on account of his injury. For inclusion of future pain and suffering and futtire loss of earnings as elé-'ments which might be considered in assessing compensatory damages, “substantial evidence of permanency” of plaintiff’s injury was not an essential prerequisite, for, as many cases have pointed out, “there is a distinction between damages which may reasonably result in the future and damages allowable as for a permanent injury.” Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 1164, 61 S.W.2d 328, 334(6); Weiner v. St. Louis Public Service Co., Mo. (banc), 87 S.W.2d 191, 192; Gulley v. Spinnichia, Mo.App., 341 S.W.2d 301, 307; Heibel v. Robison, supra, 316 S.W.2d loc. cit. 242; Brown v. Kansas City, supra, 311 S.W.2d loc. cit. 362. See also Pender v. Foeste, Mo., 329 S.W.2d 656, 663, and Hoffman v. Illinois Term. R. Co., Mo.App., 274 S.W.2d 591, 593. Assuming, for the purposes of this opinion, that instant plaintiff fell short of a submissible showing that he had sustained permanent injury, we nevertheless could not convict the trial court of reversible error in “instructing on future losses” (i. e., in giving plaintiff’s instruction 1) on the sole ground assigned in the quoted point (i e., that such instruction was given “without substantial evidence of permanency”), to which ground we should and do confine ourselves.

It may not be inappropriate to note that, in thus ruling on its merits the complaint “that the court erred in . . . instructing on future losses without substantial evidence of permanency,” we have passed the fact that neither in the quoted point nor in argument thereof is the criticized instruction (or any portion thereof) set forth [V. A.M.R. Rule 83.05(a); Brown v. Thomas, Mo.App., 316 S.W.2d 234, 237(9); Bartlett v. Hume-Sinclair Coal Mining Co., Mo.App., 351 S.W.2d 214, 217(5); Smith v. Aldridge, Mo.App., 356 S.W.2d 532, 539] or, for that matter, even identified by number or by designation of the page of the transcript where the instruction might be found, and we have not given effect to the holdings that generalized complaints of this character about instructions preserve and present nothing for appellate review. State ex rel. State Highway Com’n. v. Warner, Mo.App., 361 S.W.2d 159, and cases cited in note 5 thereto.

Adverting to the other prong of this forked point, to wit, “that the court erred in admitting evidence of life expectancy . . . without substantial evidence of permanency,” it is true that, in a suit for personal injury, the propriety of receiving mortality tables in evidence usually depends upon whether the plaintiff has made a submissible showing of permanent injury. Peters v. Kansas City Rys. Co., 204 Mo.App. 197, 203, 224 S.W. 25, 28(7). See also Moore v. Ready Mixed Concrete Co., Mo. (banc), 329 S.W.2d 14, 27-28(13); Roderick v. St. Louis Southwestern Ry. Co., supra, 299 S.W.2d loc. cit. 429(5); Rucker v. Illinois Term. R. Co., 364 Mo. 804, 815, 268 S.W.2d 849, 854(2); Pierce v. New York Cent. R. Co., Mo, 257 S.W.2d 84, 88. But our review is under the overriding injunction that “(n)o appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting-the merits of the action.” (All emphasis herein is ours.). V.A.M.R. Rule 83.13(b); V.A.M.S. § 512.160(2). And again assuming (without deciding) that instant plaintiff did not make a submissible showing of permanent injury, we cannot believe that the error (if so) in admitting mortality tables materially affected the merits of the action, particularly in view of the fact that defendant presents no point on appeal that the verdict for compensatory damages was excessive. Accordingly, we do not extend this-opinion by indulging in a tedious review of the medical testimony and by entering upon the unrewarding task of determining the sufficiency of the evidence to have permitted recovery of damages for pemtanent injury, that being an element which (as we have seen) was not submitted. Cf. Shannon v. People’s Motorbus Co. of St. Louis, Mo.App, 20 S.W.2d 580, 582(3); Kolkmeyer v. Chicago & A. R. Co., 192 Mo.App. 188, 198, 182 S.W. 794, 798(8). Suffice it to say that plaintiff’s evidence was to the effect that, as a result of the rear-end collision wholly unanticipated by him, he had sustained a whiplash injury and a lumbar sprain; that, by reason of those injuries, he had been unable to work for five months at his employment as a truck driver; and that, regardless of whether plaintiff had any permanent injury, at the time of trial (more than eleven months after the date of accident) he still had bilateral muscle spasm, tenderness and pain (on flexion) in the lumbar area, his back still “bothered” him in his work, and driving long hours caused his neck to become “stiff and sore.”

Defendant’s second point is that the court erred in instructing the jury with respect to punitive damages “without defining alleged acts of defendant that were willful, wanton or reckless” and in failing “to advise jury that the award of punitive damages is discretionary.” By the first paragraph of plaintiff’s instruction 2, the court told the jury “that, if you find for plaintiff upon the first count of his petition, and further find and believe from the evidence that the acts mentioned in other instructions of this court, and upon which plaintiff’s right of recovery depends, as contained in other instructions of this court, were done, if at all, willfully, maliciously and recklessly and in wanton disregard of the rights of plaintiff, then in addition to compensation for actual damages done, if any, you will allow the plaintiff such exemplary or punitive damages as you think proper under all of the evidence and circumstances of the case to impose as punishment.” The quoted language appears to have been lifted verbatim from an instruction found in the opinion of the Kansas City Court of Appeals in Woolston v. Blythe, 214 Mo.App. 5, 21-22, 251 S.W. 145, 151 [quashed on other grounds by our Supreme Court sub nom. State ex rel. Blythe v. Trimble, 302 Mo. 699, 258 S.W. 1013], and copied in 2 Raymond on Missouri Instructions, § 4104, p. 208, an excellent work by a distinguished author. Without pursuing an inquiry into the matter, we may assume that, as against the specific objections there interposed [214 Mo.App. loc. cit. 22, 251 S.W. loc. cit. 151] which did not include either of the two objections lodged against instant plaintiff’s instruction 2, the giving of the instruction (containing the above-quoted language) in Woolston, supra, did not constitute reversible error in that action for damages by reason of the alleged wrongful diversion of a watercourse. But, in the circumstances of the case at bar and as against the two objections here presented, we have no doubt but that instruction 2 was reversibly erroneous.

The general rule is that the jury should be instructed as to what acts or conduct of the defendant, if found to have been willful, malicious and wanton, would permit the assessment of punitive damages. Luikart v. Miller, Mo., 48 S.W.2d 867, 871; Pogue v. Rosegrant, Mo., 98 S.W.2d 528, 533; Zemlick v. A. B. C. Auto Sales & Inv. Co., Mo.App., 60 S.W.2d 649, 651; Clark v. Fairley, 30 Mo.App. 335, 339. This requirement is satisfied if, when read as a whole, the instructions “clearly instruct the jury on that subject and (do) not give the jury a roving commission to guess what acts or things are meant” [Byers Bros. Real Estate & Ins. Agency, Inc. v. Campbell, Mo.App., 353 S.W.2d 102, 107(15-17)]; and, of course, this is accomplished where plaintiff’s instruction authorizing punitive damages implicitly predicates an award thereof upon an affirmative finding for plaintiff under a designated verdict-directing instruction which submits specific acts or conduct on the part of defendant. Cf. Shepherd v. Woodson, Mo., 328 S.W.2d 1, 9-10 (11); Eoff v. Senter, Mo.App., 317 S.W.2d 666, 672(9). See Rinchart v. Joe Simpkins, Inc., Mo.App., 240 S.W.2d 962, 968-969(6, 7).

However, we have no such situation here. True, instruction 2 is “fair on its face” in that it predicates an award of punitive damages upon findings (1) “for plaintiff upon the first count of his petition,” (2) “that the acts mentioned in other instructions of this court, and upon which plaintiff’s right of recovery depends, as contained in other instructions of this court, were done,” and (3) that such acts were done “willfully, maliciously and recklessly and in wanton disregard of the rights of plaintiff.” But, examination of the “other instructions” reveals that the quoted requirements in instruction 2 necessarily must have been as utterly incomprehensible and confusing to the jurors as they are to us. This, for the compelling reason that, in instruction 1 (the only verdict-directing instruction on the first count for compensatory damages), the court bluntly told the jurors "that defendant is guilty of negligence as a matter of law, and therefore, if you find and believe from the evidence that the plaintiff, Ray Simmons, was injured as a direct and proximate result of the collision mentioned in evidence,” compensatory damages should be awarded and certain elements might be considered in determining the amount thereof. So, plaintiff’s recovery was predicated only upon a finding that he had been injured as a proximate result of the collision, and such recovery did not depend upon any “acts mentioned” either in instruction 1 or in any other instruction. In setting the jurors adrift on a sea of speculation and surmise with no guide as to what acts or conduct of the defendant, if found to have been willful, malicious and wanton, would warrant the assessment of punitive damages, instruction 2 was fatally defective and prejudicially erroneous, particularly so in view of the fact that evidence had been received concerning acts of the defendant over a considerable period of time (to wit, from 2:30 P.M. on October 7, the day before the accident, to October 20, twelve days after the accident) some of which would, while others would not, have justified or supported submission of the issue of punitive damages. Pogue, supra, 98 S.W.2d loc. cit. 533(13); Luikart, supra, 48 S.W.2d loc. cit. 871(11); Zemlick, supra, 60 S.W.2d loc. cit. 651(3); Clark, supra, 30 Mo.App. loc. cit. 339.

Instruction 2 also is vulnerable to the other appellate assault upon it, i. e., that it failed to advise the jurors that an award of punitive damages was discretionary. Punitive damages are néver allowable as a matter of legal right [Coats v. News Corp., 355 Mo. 778, 786, 197 S.W.2d 958, 963(11); Carmody v. St. Louis Transit Co., 122 Mo.App. 338, 349, 99 S.W. 495, 498] ; “the giving or withholding of punitive damages, as well as the amount thereof, lies wholly within the discretion of the jury” [Grier v. Kansas City, C. C. & St. J. Ry. Co., 286 Mo. 523, 542, 228 S.W. 454, 460; Seested v. Post Printing & Pub. Co., 326 Mo. 559, 579, 31 S.W.2d 1045, 1054]; and therefore an instruction which, either expressly or in effect, directs the assessment of such damages in some amount is erroneous. Carson v. Smith, 133 Mo. 606, 616-617, 34 S.W. 855, 858(7); Nicholson v. Rogers, 129 Mo. 136, 141, 31 S.W. 260, 261; Ballew v. Thompson, Mo.App., 259 S.W. 856, 858(6); Bosch v. Miller, 136 Mo.App. 482, 492-493, 118 S.W. 506, 510; Johnston v. Wells, 112 Mo.App. 557, 87 S.W. 70(1); 15 Am.Jur., Damages, § 269, p. 705.

Upon the findings hereinbefore quoted and discussed, instruction 2 directed the jurors “then in addition to compensation for actual damages done, if any, you will allow the plaintiff such exemplary or punitive damages as you think proper, etc.” If the quoted language was not interpreted and understood by the jurors (as it reasonably might have been) as a mandatory direction to assess punitive damages in some amount, certainly it carried and conveyed mandatory connotations and implications. See particularly Geary v. St. Louis & S. F. R. Co., 173 Mo.App. 248, 158 S.W. 736. Consult also Carson, supra, 133 Mo. loc. cit. 616-617, 34 S.W. loc. cit. 858(7). Contrast Hussey v. Ellerman, Mo.App., 215 S.W.2d 38, 41(3), where the instruction “which submitted the issue of punitive damages, conformed to this rule (that the assessment of such damages must be left wholly to and within the discretion of the jurors) by the use of the word ‘may’ instead of the word ‘will.’ ” And, as similarly recognizing the permissive connotations and implications of “may,” see Byers Bros., supra, 353 S.W.2d loc. cit. 108(18); Eoff, supra, 317 S.W.2d loc. cit. 672; and Patrick v. Employers Mut. Liab. Ins. Co., 233 Mo.App. 251, 265, 267, 118 S.W.2d 116, 125, 127. Note also-that the instruction on punitive damages in Shepherd, supra, 328 S.W.2d loe. cit. 9, used “may allow,” and that, in Hall v. Martindale, Mo.App., 166 S.W.2d 594 (here cited in both briefs), instruction 2 advised the jurors that “you may award” punitive damages [166 S.W.2d loc. cit. 601] and instruction 6 was saved from the otherwise mandatory blight of “you will also allow” by addition of the qualifying clause “such punitive or exemplary damages on each count, if any, which you may deem proper.” [166 S.W.2d loc. cit. 601, 608] We conclude that instant plaintiff’s instruction 2 offended against the basic principle that, even in a situation where the imposition of punitive damages may be permissible and proper “principally as punishment of the wrongdoer and to deter others from committing like torts” [Carmody, supra, 122 Mo.App. loc. cit. 349, 99 S.W. loc. cit. 498], the granting or withholding thereof must be left wholly to and within the discretion of the triers of the facts. See again Geary and Carson, supra.

Because of the erroneous submission of that issue by instruction 2, plaintiff is not entitled to affirmance of the judgment as to punitive damages, but the error may be cured by remittitur. Pogue, supra, 98 S.W.2d loc. cit. 533; Zemlick, supra, 60 S.W.2d loc. cit. 651; Bosch, supra, 118 S.W. loc. cit. 510. Accordingly, if plaintiff will, within fifteen days from the date hereof, enter a written remittitur in this court in the sum of $1,000 (the punitive damages assessed), the judgment will stand affirmed for $5,000 (the compensatory damages awarded) as of the date on which judgment was entered in the trial court; otherwise, the judgment as to damages will be set aside and the cause will be remanded for a new trial upon the issue of damages only.

RUARK, P. J., and McDOWELL, J., concur.