text:
    Delores Fay PRATER and John Ernest Prater, Appellants, v. ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY, a Corporation, Respondent.
    No. 51739.
    Supreme Court of Missouri, Division No. 2.
    Jan. 9, 1967.
    Arthur C. Popham, Sr., E. E. Thompson, Kansas City, for appellants, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.

      George L. Gordon, Sam D. Parker, Jack W. R. Headley, Joseph E. Stevens, Jr., Kansas City, for respondent, Lathrop, Righter, Gordon & Parker, Kansas City, of counsel.
   STOCKARD, Commissioner.

Plaintiffs, John Ernest Prater and Delores Fay Prater, husband and wife, have appealed from an adverse judgment entered pursuant to a jury verdict in their action for damages in the amount of $40,000 for personal injuries to Delores, and for $25,-000 for the wrongful death of their infant son.

In view of the single issue .on this appeal, an abbreviated statement of the facts is sufficient. On October 29, 1960, Delores was a passenger in an automobile operated by her sister-in-law, Patsy O’Brien, and while traveling westerly in a hard rain on U. S. Highway 40 in the State of Kansas, Delores was injured when the automobile was struck at a grade crossing by defendant’s train. According to Patsy, as she approached the crossing she listened and looked for a train, but did not see nor hear the train until her automobile was only a few feet from the track. She then applied her brakes and slid onto the track with the car swerving to the left so that the rear of the automobile was toward the north. The train struck the rear of the automobile and pushed it down the track about 160 feet. According to the engineer, he did not sound the whistle at the “whistle post,” but started sounding it about 800 feet from the crossing. When the train was 500 to 600 feet from the crossing he saw the automobile in which Delores was riding, and as it approached the crossing it went into a skid and skidded onto the track when the engine was about 50 feet from the crossing. There was an automatic lighted “wig-wag” signal at the crossing, but both Delores and Patsy testified that although they were looking straight ahead neither observed the signal working. After the collision, Patsy did observe that the signal was then working.

At the time of the collision Delores was more than six months pregnant. Her child was subsequently born prematurely and died on May 2, 1961. Plaintiffs alleged that the child’s death was the result of injuries it received in the collision prior to its birth.

Delores’ case for her personal injuries, and the case of Delores and her husband for the wrongful death of their child were each submitted to the jury on the negligence of defendant in failing to give the warning required by Section 66-2,120, GRS Kans., or in permitting a growth of weeds, shrubbery and brush of five feet or more on its right of way in such a way to obstruct the view to the north of persons approaching the crossing in an automobile traveling west. Section 66-2,120, in substance, provided that defendant was to sound a whistle four times, two long and two short blasts, commencing at least 80 rods from the crossing where the collision occurred, and its failure to do so would be negligence.

In oral argument to the jury, counsel for defendant presented the contention that the failure of defendant’s engineer to start sounding a whistle 80 rods before the crossing was not a proximate cause of the collision. In his argument he said that “they [apparently plaintiffs’ counsel] weren’t even able to get Patsy or Delores Prater to say or to guess for you that blowing the whistle any longer would have made any difference,” and that the engineer “had been blowing that whistle in a standard crossing whistle [two longs and two shorts] and then short toots for seventeen seconds.” He then said: “Well now, what possible good could it have done for that whistle to have been blowing another seventeen seconds when the train and the car were twice as far away from each other as they were when he started blowing the whistle eight hundred feet from the crossing.” Later during oral argument the following occurred:

“Now, I want to talk a minute about this whistle, and I want to talk about the Instructions while I am talking about it. Even assuming that some technical Kansas Statute had a requirement about blowing a whistle eighty rods back—
“Mr. Popham: [counsel for plaintiffs] (Interrupting) Just a minute, Your Hon- or, I want to object to counsel denouncing the law of Kansas and talking about technical statutes in Kansas. It is the law and I object to him branding it as such.
“The Court: The jury will pay attention to the evidence, and that is all.
“Mr. Stevens: I don’t have anything against the law of Kansas, Mr. Popham, even assuming then that some well-meaning Kansas Statute requires that a whistle be blown for eighty rods, and it wasn’t, — assuming that it wasn’t — when you are considering this upstairs [referring to the jury room] and reading Instructions Two and Three in the light of it, ask yourself this question. What difference did it make? What conceivable difference there, under those circumstances, did it make whether Irvin Weil [the engineer] blew that whistle for seventeen seconds or thirty-four seconds, because in seventeen seconds Delores Prater could have seen that train and warned the driver, or the driver could have seen that train and started to slow that car easily and readily, if they had been paying attention.”

On this appeal plaintiffs assert that the trial court committed prejudicial error “in overruling, in effect, plaintiffs’ objection to that portion of defendant’s closing argument in which its counsel referred to the State of Kansas requiring a whistle on a locomotive to be sounded at least eighty rods from a public crossing, as a ‘ * * * technical Kansas Statute’ having ‘a requirement about blowing a whistle eighty rods back,’ and the court aggravated such error and further erred by instructing the jury to ‘ * * * pay attention to the evidence, and that is all,’ thereby placing its stamp of approval on the conduct of defendant’s counsel as being proper.” They assert that the statement by counsel in argument “constituted an erroneous statement of law” and was “particularly prejudicial in view of defendant’s admitted violation of the Statute.”

Plaintiffs cite no case which in any way supports their contention that the reference by counsel to the requirement that defendant sound a whistle eighty rods from a public crossing as a “technical Kansas Statute” was an “erroneous statement of law.” They present the tenuous argument that the comment was designed to plant in the minds of the jury the idea that the statute was a mere technical one requiring only token compliance. We cannot agree. The defendant’s evidence established a violation of the statute, and noncompliance was admitted in oral argument. By Instruction No. 2 the jury was told that the defendant was legally required to sound a whistle four times commencing at least 80 rods from the place where the railroad crossed said roadway, “and any failure of defendant to do so would be negligence.” Defendant’s oral argument was directed to the contention that failure to sound the whistle earlier than it was sounded was not the proximate cause of the collision, an argument it was entitled to present under the evidence. See Kendrick v. Atchison, Topeka & Santa Fe Railroad Company, 182 Kan. 249, 320 P.2d 1061. Defendant’s characterization of the Kansas statute as “technical” was not clearly erroneous. The word has a variety of meanings and uses, but in Webster’s Third New International Dictionary one of its definitions is “of or relating to a particular subject.” The Kansas statute was a “technical” statute within that definition. Counsel for plaintiffs could reply in argument, and in fact a reply was made in this case. The comment by counsel was not an “erroneous statement of law,” and we do not see how the jury possibly could have been misled by this statement, or how plaintiffs could have been prejudiced by it.

Plaintiffs also assert that “the error was aggravated by the court’s action in admonishing the jury to pay attention to the evidence, and that’s all.” We have concluded that no prejudicial error occurred by the statement used by counsel, and for that reason there was no aggravation of error. The use of the phrase, “and that is all” may have been an unfortunate choice of words, but when considered in context it is readily apparent that any reasonable jury would understand that it had been told to pay attention to, or be guided by, the evidence as distinguished from characterizations by counsel made in oral argument. In addition, counsel made no objection to the comment by the court, and made no request that the court advise the jury that it should be guided by the evidence and the court’s instructions.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: EAGER, Judge.

license: Public Domain

text:
    Cecil Roscoe LEE, Appellant, v. Wilfred ZUMBEHL, Respondent.
    No. 51259.
    Supreme Court of Missouri, In Banc.
    Dec. 12, 1966.
    Rehearing Denied Jan. 9, 1967.
    Deeba, DeStefano, Sauter & Herd, by James B. Herd, St. Louis, for appellant.
    Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for respondent.
   EAGER, Judge.

Plaintiff sued for personal injuries sustained when he, as a pedestrian, was struck by defendant’s car. There was a nine-man verdict for defendant and, after plaintiff’s motion for a new trial was overruled, he appealed. The prayer of his petition was for $40,000 and he sustained substantial injuries, so we have jurisdiction.

The injury occurred on March 18, 1962, at the intersection of Chouteau and Boyle Avenues in St. Louis, at some time between 1:00 and 1:30 a. m. Plaintiff lived approximately five blocks from that location. He was a carpenter, 68 years of age at the time of his injury; the work at his occupation was somewhat seasonal or dependent upon the weather, and he had worked at his home that day, cleaning and painting. The day and evening were clear' and dry. From plaintiff’s testimony the facts now related fairly appeared. At about 11:00 p. m. he went to Brugger’s Tavern or Cafe at the southwest corner of the intersection in question. He had previously been there “pretty regularly.” There he had one beer, sat in a booth and read a newspaper, and went to sleep. As closing time neared he awakened, about 1:00 a. m. or a little later; very shortly he left the place. Mr. Brugger also went outside to check the doors on a merchandise chute leading in from the sidewalk, and they talked briefly. Plaintiff’s intended course of travel was across Chouteau, from the southwest corner to the northwest corner, ■directly north in a marked crosswalk. He testified that Chouteau was about 80 feet wide, with two traffic lanes and a parking lane on each side. Plaintiff’s photographs show a double painted center line, and the street surface is apparently blacktop, although plaintiff testified that the paving in the intersection was “brick.” No parked ■cars were so located as to require consideration. Boyle Avenue is approximately 60 feet wide. There were street lights on each corner of the intersection. Chouteau is straight at that location, and substantially level. As plaintiff was ready to start across the street, the driver of an eastbound car stopped and asked him for directions; he gave them, and the car moved on, turning left (north) on Boyle. That car does not enter further into our consideration. After a few more words with Mr. Brugger, plaintiff started directly north, in the crosswalk, across Chouteau. When he was “about” at the center of the street, he saw a car approaching on Chouteau from east to west, about one short block to his right, and at a distance which he estimated to be 2S0 to 300 feet; he could not and did not estimate the speed of that car, either at the time he saw it or when he was struck; that car was, at the time, the only car moving within his vision in any direction. Its lights were burning. Plaintiff was wearing a light brown topcoat, which extended below his knees, and a gray hat.

After plaintiff saw the car coming from his right, he looked back “straight ahead,” that is, to the north, and walked north at what he described as a normal pace, probably “about” four miles an hour. He did not look again to his right, toward the car, until he was “about 15 foot” from the north curb, and then the car was “right on” him, possibly six feet away, and hit him before he “got out of the road.” He admitted that he walked approximately 25 feet from the center line “without ever looking” to his right. He testified that he heard no horn or brakes, and that when he was struck he was about five feet from the north curb; he was knocked westward and landed “pretty close to the curb.” When asked if there was any reason at all why he had not looked back to check the car after he left the center line, he said: “None that I know of, no.” His eyesight was good so far as he knew.

Mr. Brugger testified, as plaintiff’s witness, in substance as follows: that plaintiff arrived at about ten or ten-thirty in the evening and left about one or five minutes after one; that plaintiff had one beer; that he walked out on the sidewalk when plaintiff left to check the metal doors; that he watched plaintiff all the way as he crossed the street and until he was struck, although he said there was no reason for his doing so; that plaintiff was walking, not fast, not slow, but at a “steady gait” for a man of his age; that when plaintiff reached the center of Chouteau the driver of a car apparently asked directions and then moved on; that plaintiff then proceeded north across Chouteau in the crosswalk; that he saw the car which struck plaintiff when it was at approximately the east curb line of Boyle, and that it was traveling at about 30 miles an hour; that it did not change its speed, and struck plaintiff when he was “over three quarters” of the way across Chouteau; that plaintiff was about three or four feet from the curb when he was struck; that he did not see plaintiff change his speed as he walked, nor did he hear any horn or brakes; that the car was traveling in the traffic lane nearest to the curb, and that it stopped approximately ISO feet west of the crosswalk. Mr. Brugger stood on the sidewalk and watched plaintiff, although he was the bartender, his place was still open, and there were customers inside. In the view we take of the case it will be unnecessary to relate further evidence.

This case was first argued in Division One, but was later transferred to the Court in Banc on the Court’s own motion, without the adoption of an opinion. The plaintiff, as appellant, raised points of alleged error in the admission of testimony, mis- • conduct of a juryman, and the giving of an instruction on contributory negligence. The first point raised by the defendant in respondent’s brief (and raised again in a supplemental brief for the Court in Banc) was that plaintiff made no submissible case because he was guilty of contributory negligence as a matter of law.

We have concluded that, upon the wholly uncontradicted and unquestioned evidence of plaintiff himself, he was con-tributorily negligent as a matter of law. We have recited his evidence in considerable detail, in so far as it affects this question; also that of his witness Brugger. The most material facts are: that at 1:00 to 1:30 a. m., from the center of this wide street, he saw a car with its lights on, coming toward him from his right on that part of the street which he must traverse; that there was no other traffic in sight; that he estimated the car to be 250-300 feet away; that he could not and did not estimate the speed of the car, but then turned away, looked to the north and walked to the north at a “normal” pace without ever looking again toward the car until he had walked approximately 25 feet, and this, as he admitted, without any reason that he knew of; that when he finally looked to his right again, the car was “right on” him, and struck him when he was from three to six feet from the curb. We hold that any reasonable and competent person would and should have anticipated danger and a probability of a collision under these circumstances, and would have continued to watch the approaching car, taking some action to avoid it when a collision became imminent. The great likelihood of a collision was specifically shown by the fact that one did occur, although the car was not being driven (according to Brugger) at an excessive speed, and the car did not alter its speed or course, nor did plaintiff.

It is not to be expected that any decided case would be found on identical facts. In several of our cases, however, the principles declared indicate the result here. In Iman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477, it appeared that plaintiff, in crossing westward on a wide street and as he approached the center, saw defendant’s truck turn into that street about 300 feet to his right; it then proceeded southerly in a straight line at a distance of about 20 feet from the west curb line; plaintiff testified that he watched it approach steadily at about 30 miles an hour, but he nevertheless walked steadily on until he reached the far rail of the streetcar tracks, directly in the path of the truck; he then realized that the driver was looking off to one side, and it was too late for him to escape. The court said in part, loc. cit. 479-480, 58 S.W.2d loc. cit.: “While plaintiff showed that defendant was negligent in more ways than one in running its truck against plaintiff, yet he convicted himself of contributory negligence in deliberately walking in front of and in the line of travel of the on-coming truck. * * It is thus stated by plaintiff that while observing this truck coming thirty miles per hour straight down the street car rail which he was about to cross he deliberately or carelessly walked in front of and into the pathway of the coming car when it was in plain view and about thirty feet distant, too late, as it proved, for either party to avert the collision.”

In Carpenter v. Kansas City Public Service Co., Mo., 330 S.W.2d 797, plaintiff dismounted from a bus which had stopped at an angle in an intersection; he then started across the heavily traveled roadway after having looked to the west at a time when the bus itself blocked the view in that direction except for a distance of 20 feet beyond the end of the bus; the traffic on that side of the road was coming from the west. Plaintiff then walked on without looking again and was struck by a car. He testified that he “was going to look around to the west” again, but that he was struck before he did so. Plaintiff was familiar with the road, the traffic and the intersection. The court said, loe. cit. 798, 800: “On cross-examination he stated that when he left the bus he intended to go straight across the highway to the south; that after looking west at a time when he could see only 20 feet beyond the rear of the bus he never again looked toward the west prior to being struck; that if he had looked west when he reached a point even with the rear of the bus he could have seen 300 feet in that direction; that the highway was level for quite a distance and there was nothing to obstruct his view toward the west after reaching a point even with the rear of the bus; that he never saw the car that struck him. * * * We are convinced from plaintiff’s own testimony that he was guilty of contributory negligence as a matter of law (under the facts and circumstances disclosed) in walking into the eastbound lanes of said highway, beyond a point even with the rear of said bus, without first looking for cars approaching from the west, when, if he had looked, he could have seen for a distance of at least 300 feet and would have observed the imminent approach of the vehicle with which he collided and when he had actual knowledge of the likelihood of the approach and presence of eastbound vehicles at that very time and place. * * * Under the facts and circumstances disclosed by the evidence, it would be difficult to conceive of a more negligent act than the conduct of plaintiff in walking from behind the bus into the center of the eastbound portion of said highway without first looking to the west in order to ascertain whether any car was approaching sufficiently close to his line of travel as to create a danger of his being struck thereby. We do not think reasonable minds would differ upon the premise that a failure to look, under the circumstances, constituted a failure on the part of plaintiff to exercise ordinary care for his own safety and that such failure was negligence which directly contributed to cause his injury.”

A very similar situation was presented in Danzo v. Humfeld et al., Mo., 180 S.W.2d 722, where the pedestrian plaintiff was also held guilty of contributory negligence as a matter of law in walking out into a traffic lane from in front of a double parked truck without first looking adequately. In Melton v. St. Louis Public Service Co., 363 Mo. 474, 251 S.W.2d 663, plaintiff walked westward across a street at a point where streetcar tracks crossed it; he walked parallel to and within 12-18 inches of the north rail without looking behind him, after having looked only casually for 50-75 feet eastward when he started. According to his evidence, he was struck by the overhang of a streetcar after he had stepped up on the opposite curb. The court said, loe. cit. 667: “A glance over his shoulder would have disclosed to plaintiff the presence of the approaching car. Had he made reasonable use of his sense of sight and of his mental faculties, either when he first approached the tracks on the east side of the street or as he was proceeding across the street, he would not have been injured. In our opinion all reasonable minds would agree that plaintiff did not exercise ordinary care to protect himself from injury.”

See also, to the same general effect: Dempsey v. Horton et al., 337 Mo. 379, 84 S.W.2d 621; Wolfson v. Cohen, Mo., 55 S.W.2d 677; Woods v. Moore, Mo.App., 48 S.W.2d 202; McElwee v. Curtiss-Wright Corp. (D.C.E.D.Mo.), 70 F.Supp. 97; Adkins v. Boss, Mo., 290 S.W.2d 139; State ex rel. Kansas City Public Service Co. v. Bland, 354 Mo. 79, 188 S.W.2d 650; Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575; Burton v. Moulder, Mo., 245 S.W.2d 844.

In the very recent case of Bond v. Kansas City Transit Co., Mo., 401 S.W.2d 440, the plaintiff, a passenger on a bus, stepped off the bus onto an area of ice and snow which was irregular and bumpy; the bus had stopped with the rear end three or four feet out from the curb, thus causing plaintiff’s predicament. She knew of the general icy and snowy conditions. In her own testimony she stated that she had looked at the sidewalk and it seemed clear, but that she did not look at the place where she stepped until after she had started her last step down, when it was too late to retract. The court said there, loc. cit. 442-445: “On cross-examination plaintiff testified that after the bus had stopped and the door opened, there was nothing to obstruct her view of the condition of the street and sidewalk. This was also true as she stood on the middle and on the lower steps before she descended from the last step to the street. She testified that she did not look at the ground until after she was in the process of stepping from the bottom step to the ground itself, at which time it was too late to stop. * * * While a plaintiff is not under a duty to look closely for danger where there is no reason for him to anticipate danger, the converse is true and if there is reason to anticipate danger, the defendant is under a duty to exercise ordinary care to look and ascertain if danger is present. * * * She specifically testified several times that she simply did not look. The street was covered between the bus and curb with rough, rutty ice and snow and plaintiff fell thereon. This rough ice and snow was visible. * * There is no basis for any inference that she couldn’t see the street or the distance of the bus from the curb. She testified that there was nothing to obstruct her view. * * * Plaintiff did not exercise ordinary care and was guilty of contributory negligence as a matter of law. We think the facts reasonably cannot admit of any other conclusion.”

The plaintiff, appellant here, filed no reply brief nor did he (as was his option) file any supplemental brief when the case was transferred to the Court in Banc. He has not, therefore, answered defendant’s brief and supplemental brief on this point. His counsel have cited several authorities in support of a contention that the trial court should not have given an instruction on contributory negligence because it was unsupported by the evidence. The only Missouri cases so cited are Samuels v. Klimowicz, Mo., 380 S.W.2d 418, and Chandler v. Mueller, Mo., 377 S.W.2d 288. The first holds essentially that an instruction must be supported by the evidence and that each party may request instructions on the theory of his own evidence. The second held that where the only evidence was that plaintiff was keeping a lookout, it was error to give a contributory negligence instruction on the supposed failure to do so. In a federal case so cited, Kroger Company v. Doane (C.A.8), 280 F.2d 1, it was held that a contributory negligence instruction was properly refused because the evidence did not show that plaintiff knew of any likelihood of peril (in a door being opened suddenly and unexpectedly) or of any circumstances which might indicate such, and that there was no knowing exposure to peril; in other words, that there was no actual or constructive knowledge of danger. None of these cases are relevant on the facts now before us. We regret that plaintiff has not briefed the point, but we have examined a very substantial number of authorities. We do not reach a discussion of defendant’s negligence.

On plaintiff’s evidence we are forced to the conclusion that he was guilty of contributory negligence as a matter of law, and that defendant’s motion for a directed verdict on that ground at the conclusion of the evidence, should have been sustained. We find that the facts are such as to permit no other reasonable conclusion. In this view of the case, the specific points of error raised by appellant become immaterial.

The judgment is affirmed.

All concur.


author: BARRETT, Commissioner. FINCH, Judge.

text:
    Maxim KOPRIVICA, Appellant, v. BETHESDA GENERAL HOSPITAL, a corporation, Respondent.
    No. 51784.
    Supreme Court of Missouri, Division No. 2.
    Dec. 12, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 9, 1967.
    Biggs, Hensley, Curtis & Biggs, Ward Fickie, Frederick E. Hines, St. Louis, for plaintiff-appellant.
    Robert W. Wilson, R. E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   BARRETT, Commissioner.

The appellant Maxim Koprivica alleged that in September 1964 while a patient in Bethesda General Hospital and “not aware of what he was doing, (he) attempted to leave said hospital by sliding down some blankets tied together * * * slipped and fell to the ground below, suffering injuries” entitling him to damages of $50,000. He alleged that the hospital was negligent in that “its agents and employees in that knowing his condition and the manner in which it would manifest itself, no adequate or sufficient watch was maintained over him; that he was assigned to a room which could be locked from the inside; that the noises he made in moving his bed and an oxygen cylinder to barricade his door alerted or should have alerted the hospital, its agents and employees that something out of the ordinary was occurring in plaintiff’s room, yet no action or precaution for the protection of plaintiff was taken by defendant.” '

In response to this pleading the hospital moved for summary judgment alleging that it was a general hospital, “a pro forma corporation not organized for pecuniary profit and is a benevolent, scientific, education, non profit and eleemosynary institution,” and that “(b)y reason of the foregoing, defendant is immune from suit or damages based upon its alleged torts, which immunity the defendant now claims.” After a hearing on the motion for summary judgment, the hospital introducing its 1892 and 1899 records of pro forma incorporation “to establish and maintain hospitals, clinics, laboratories, training schools and all other activities necessary for the scientific care and treatment of the sick and injured,” the court sustained the motion, entered judgment for the hospital and the plaintiff Koprivica has perfected an appeal to this court.

The appellant recognizing that in similar if not identical situations this jurisdiction has adopted and adhered to the so-called “charitable immunity” doctrine urges because of “change in conditions and circumstances,” including the recently enacted medicare legislation, that this court should re-examine “public policy” and prospectively abrogate “the rule of charitable immunity for voluntary nonprofit hospitals.” In support of his position the appellant points to twenty jurisdictions and their cases in which the immunity doctrine once prevailed but has now been abrogated. Other cases, law review articles, learned treatises and journals are referred to and it is said that only five states, including Missouri, now adhere “to the doctrine of total immunity” and upon all these considerations it is urged that this court “join the mainstream of current thought in this field and establish a public policy which says hospitals must exert an ordinary standard of care in treating their paying patients or be held liable for failure to do so.” In support of his contentions the appellant has lodged in this court brochures dealing with health and hospital insurance, statistical data as to hospital charges, income and losses and also journals of the American Hospital Association.

One of the difficulties with the presentation of all this data is that it was neither received nor offered in evidence and was not of course officially before the trial court. Some of this material, particularly the learned articles, is referred to in a number of the cases in which the doctrine was repudiated, as for example the recent cases of Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193, and Adkins v. St. Francis Hospital of Charleston, (W. Va.), 143 S.E.2d 154, and it may be that in one sense this court could judicially know some of these things. But as stated, there was no offer of proof by the plaintiff and the respondent hospital relying solely on its charitable immunity offered no countervailing evidence or statistical data and thus as to the basic attack upon the doctrine, even if an open question, this was not the traditional adversary proceeding in which every facet of the problem was before the court. On the motion for summary judgment in which the appellant tacitly joined, thinking no doubt that it was sufficient to abstractly attack the doctrine on principle, his only insistence was that the record show that Bethesda General Hospital had amended its corporate charter and was no longer a “pro forma corporation” (RSMo 1959, § 352.060) but “has adopted the ‘General non-for profit corporation,’ statutes” (RSMo 1959, §§ 355.010, 355.020). The hospital’s 1962 amended charter being stipulated plaintiff’s counsel joined in the summary judgment submission. And so the case is here on Mr. Koprivica’s petition, the verified motion and the amended charter. Insofar as illustratively material here the amended charter provides that “(t)he purposes for which this corporation is organized shall be (a) to establish, maintain and operate hospitals, infirmaries, clinics, laboratories, training schools, and all other activities necessary or convenient for the scientific care and treatment of the sick, infirm and injured, the chronic sick and convalescent, * * * (b) to establish, maintain and operate in a charitable manner homes for aged Christian men and women who would otherwise be unable to provide for themselves without hardship and to render such service at a cost substantially below its actual cost and to provide purely charitable services when possible * * *, (c) to protect and care for abandoned, ill treated, destitute and friendless children * * *. No part of the net earnings of the corporation shall inure to the benefit of any member, director, officer of the corporation, or any private individual (except that reasonable compensation may be paid for services rendered * * *).”

In the circumstances of this record it is not necessary to prolong this opinion, virtually the same arguments and appeals were made as recently as 1961 in an attempt to persuade the court to abrogate the charitable immunity doctrine as to hospitals. The arguments and cases were reviewed at some length but the doctrine was again affirmed “primarily as a rule of public policy, in the absence of legislation and of an indicated contrary legislative intent.” Schulte v. Missionaries of La Salette Corp. of Mo., Mo., 352 S.W.2d 636, 639. Other relevant Missouri hospital cases including hospitals organized under RSMo 1959, §§ 352.010 and 352.020 are Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615; Nicholas v. Evangelical Deaconess Home, 281 Mo. 182, 219 S.W. 643, and Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453. And see Bethesda General Hospital v. State Tax Commission, Mo., 396 S.W.2d 631. In these circumstances the summary judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

EAGER, P. J., and DONNELLY, J., concur.

FINCH, J., concurs in result in separate concurring opinion filed.

CONCURRING OPINION

FINCH, Judge.

I concur in the result reached in this case by the majority opinion. The only evidence submitted to the trial court on defendant’s motion for summary judgment consisted of documents in connection with incorporation of defendant as a pro forma decree corporation, plus documents disclosing that defendant has brought itself under the Not for Profit Corporation Act, Chapter 355, RSMo 1959 and V.A.M.S. Upon that state of the record, the trial court could do nothing other than sustain the motion for summary judgment and on appeal this court must affirm under the Missouri decisions cited in the majority opinion.

Appellant has filed in this court the “Source book of health insurance data 1964,” issued by the Health Insurance Institute, and portions of the August 1, 1964, August 1, 1965 and August 1, 1966 issues of the Journal of the American Hospital Association. None of these were presented to the trial court. Appellant asks this court, based on these documents, to abrogate the existing charitable immunity for hospitals and to reverse and remand this case for trial. This we cannot and should not do on the record before us on appeal.

I write this opinion, concurring in result, to indicate that in my opinion we should, if and when the question is fully presented to us on appeal, carefully review the existing charitable immunity doctrine as applied to pro forma and not for profit hospitals.

Some of the material presented to us by appellant indicates that for the year 1965 approximately 96% of total hospital expenditures by Missouri voluntary not for profit hospitals was derived from patient revenue. It does not appear whether any of these expenditures were for capital items or whether all were for operating expenses. This may pose a question of whether paying patients should be required personally to bear the risk and burden of injury which may result from lack of proper care in order to benefit what may be a proportionately small percentage of persons who are receiving charitable care.

We should consider all such facts and other pertinent information relative to hospital operations, including the number and extent of charity patients of the hospital, a breakdown of the source of operating funds of the hospital, and perhaps whether the hospital carries liability insurance and pays for same as an operating expense. All such evidence first should be submitted to a trial court for its consideration.

I express no view as to what disposition this court should make of such a case. That should await a consideration of the record presented to us. I do, however, believe that we should consider the matter fully when and if it is presented to us on a proper record. I do not believe that we should take the position that we will leave this determination to the legislature. The doctrine is one established by the courts, not by the legislature, and if we ultimately should conclude that it should be changed or modified, we should so hold.


text:
    LA SALLE IRON WORKS, INC., a Corporation, Appellant, v. L. J. LARGEN, doing business as L. J. Largen Construction Company and Universal Surety Company, a Nebraska Corporation, Respondents.
    No. 52226.
    Supreme Court of Missouri, In Banc.
    Dec. 12, 1966.
    Rehearing Denied Jan. 9, 1967.

      Sumner, Hanlon & Sumner, John F. Hanlon, Richard A. Schwartz, Clayton, for appellant.
    F. Philip Kirwan, Patrick E. Hartigan, Kansas City, Norman Bierman, Stuart M. Haw, Jr., St. Louis, Margolin & Kirwan, Kansas City, Anderson, Gilbert, Wolfort, Allen & Bierman, St. Louis, of counsel, for respondent Universal Surety Co.
   EAGER, Judge.

This is a suit by a material supplier against the principal contractor and his surety for the value of material furnished to the contractor in the building of a church school. The case was submitted to the court without a jury on a stipulation of facts. The court rendered judgment against the contractor for $3,046.74, with interest, but in favor of the surety. Plaintiff appealed; the contractor did not. Hence, our problem lies in the issue between plaintiff and the surety. On appeal to the St. Louis Court of Appeals, that court reduced the recovery of plaintiff against the contractor to $2,805, with interest, and affirmed the judgment in favor of the surety. On application for transfer, we determined to review the case because of the holding of nonliability as to the surety.

On July 22, 1960, defendant Largen contracted with Union Lutheran School Association to build the “Green Park Lutheran School”; we shall refer to the latter as the “owner” or#the “school.” That contract is not in evidence, an oversight which should not have occurred. In anticipation of that contract, Largen contracted with plaintiff for the furnishing of structural steel and miscellaneous iron to be used in the construction for a price of $2,805; plaintiff fully performed that contract and furnished the material. It is further stipulated that, during the construction, plaintiff and Lar-gen agreed that plaintiff should supply additional material of the reasonable value of $139.74; the stipulation does not state that this material was actually furnished, an apparent inadvertence. On July 28, 1960, Largen as principal and defendant Universal Surety Company, a Nebraska corporation, as surety, executed a “contract bond” to the Green Park Lutheran School as obli-gee, in the sum of $271,977 to secure the performance of the principal contract, which was made a part of the bond by reference. Since that bond is the source of the only real issue, we quote its controversial paragraph, as follows:

“Now, Therefore, the condition of this obligation is such that, if the Principal shall faithfully perform the contract on his part, and shall fully indemnify and save harmless the Obligee from all cost and damage which the Obligee may suffer by reason of failure so to do and shall fully reimburse and repay the Obligee all outlay and expense which the Obligee may incur in making good any such default, and shall pay all persons who have contracts directly with the Principal for labor or materials, then this obligation shall be null and void, otherwise it shall remain in full force and effect.” Plaintiff demanded payment of Largen who refused or failed to pay, and subsequently the surety also refused to pay; hence this suit.

We relate the contentions of the parties in reverse order, giving first the contentions of defendant surety in support of its supposed nonliability. It says in substance: that this bond was given solely for the benefit of the obligee, the school, and that it gave plaintiff no right of action; that plaintiff was neither a creditor beneficiary nor a donee beneficiary and that it did not maintain the burden of showing that the parties intended to benefit it. Plaintiff asserts that it is one of the persons for whose benefit the bond was executed and that it has a direct right of action; and it questions the distinction frequently made between the liability of sureties on bonds for private and public works.

The trial court expressly based its judgment in favor of the surety on the decision in Uhrich v. Globe Surety Co., 191 Mo.App. 111, 166 S.W. 845; the Court of Appeals, after an extended discussion, adopted the conclusion reached in Uhrich as “sound.” The case thus comes to us, for a determination as upon an original appeal, from a decision holding that the obligee in the bond was only interested in its own protection, that the provision for the payment of claims for material and labor was incidental, that from all the circumstances there was no purpose or intent on the part of the obligee to require payment of such claims, and that there was no demonstrated interest of the obligee in the claims of such creditors; and, therefore, all such intent being lacking, the surety was not liable.

We first discuss the Uhrich case. It is a decision of the Kansas City Court of Appeals, rendered in 1914. There the plaintiff sold and furnished materials to a contractor who, with the surety, executed a performance bond. The case was decided upon the sustaining of a demurrer to the petition and a refusal to plead further. The contractor had agreed to erect the building and to pay for all labor and materials; the owner contracted to pay the agreed sum provided that all persons dealing with the contractor should be paid so that they would have no liens, with further provisions for the retention of funds and direct payments if so desired. The bond, in so far as its terms appear, was conditioned “ ‘that, if the said contractor shall duly perform said contract and fulfill all the several stipulations therein provided, then this obligation is to be void, but, if otherwise, the same shall remain in full force and virtue. It is hereby expressly agreed that the said L. G. Hill may make payments in any amounts to the contractor, subcontractor, and materialmen and laborers, and such payments shall in no wise limit, affect, or reduce our liability hereunder.’ ” The bond does not appear to have contained any condition concerning the payment of claims for material and labor. The plaintiff there had filed a lien and had a suit pending to enforce it. The court recognized, with limitations, that a third person for whose benefit a contract was made could enforce it, although not privy to the consideration; but it emphasized the element of mutual intent of the parties “as expressed in the instrument” and “in the light of the circumstances * * * where there is uncertainty or ambiguity * * *.” The court concluded that the payment of debts such as plaintiff’s was not intended by the parties as one of the “direct objects” of the bond, but was only incidental to the idea of “protecting the property of the owner from liens * * And the court noted the distinction between cases such as that and those cases involving public bonds where no lien may be obtained. The court emphasized the dominant thought of liens, and the omission from the bond of any provision giving materialmen a right of action. We shall return to this case later.

There has been a vast amount of litigation on this subject, and it will be physically impossible to discuss even a substantial proportion of the cases. An exhaustive annotation appears in 77 A.L.R., beginning at page 21. This is supplemented by another annotation at 118 A.L.R. 57. In the later annotation the author states, at page 65: “As shown in the original annotation, the great weight of authority sustains the right of a person furnishing labor or materials to recover on a private building contractor’s bond in which the owner of the property is named obligee, conditioned that the contractor shall pay all claims for labor and materials, or that he shall pay laborers and materialmen. The later cases generally support this rule.” In the original annotation mány authorities are discussed; the terms of the bonds discussed in the cases naturally vary, but no doubt can remain concerning the conclusion stated in the later annotation. It is thus also stated that a condition of such a bond for the payment of laborers and materialmen is clearly for the benefit of such persons, and that the authorities holding to the contrary, relying on the obligee’s supposed intention, confuse the intent, “which is the act or result contemplated by the terms of the bond, with the motivating purpose or desire of the owner in requiring the bond.” 77 A.L.R. loc. cit. 213. We note particularly this confusion, as applied to the present case. Again, the same annotator says: “As well stated by Professor Arthur L. Corbin in 38 Yale L. J. 1, 3, if there is an actual promise by the obligors to pay the third party, either by express words or by reasonable implication, there is no need to speculate for whose benefit the undertaking was made. Of course, the question of intention to benefit cannot be eliminated altogether in considering the rights of third parties, since in many cases the promise for their benefit is not clearly expressed and the meaning of the instrument is doubtful. But, where clearly there exists a promise to pay a third party, any further inquiry into the intention of the parties to benefit him is irrelevant.” 77 A.L.R. loc. cit. 31; and at loc. cit. 51: “ * * * the intention, as disclosed by the terms of the bond and contract, is controlling. If the bond is so conditioned that its performance will necessarily and directly benefit laborers and materialmen, it is, in legal contemplation, ‘intended’ for their benefit; and it makes no difference that the object motivating the parties to the bond was the protection of the obligee. In the second place, there is no valid basis for the requirement that there be a duty or obligation owing by the obligee to the laborer or materialman or some consideration passing from the latter to the former, so as to create privity of consideration.” The statements in those annotations are supported by copious authorities. See, generally, for the positions stated: New York Indemnity Company v. Hurst, 252 Ky. 59, 66 S.W.2d 8, 94 A.L.R. 864; Fowler v. Doran et al., 123 Neb. 37, 241 N.W. 759; Knight & Jillson Company v. Castle, 172 Ind. 97, 87 N.E. 976, 27 L.R.A.,N.S., 573; Cherry, for Use of Geager, Receiver v. Charles Benson, Inc., 264 Ill.App. 199 (citing many cases in support of the ruling); Hartford Accident & Indemnity Company v. W. & J. Knox Net & Twine Company, 150 Md. 40, 132 A. 261; The Bryam Lumber & Supply Company v. Page, 109 Conn. 256, 146 A. 293; Thompson Yards, Inc. v. Van Nice et al., 59 S.D. 306, 239 N.W. 753; American Employers’ Ins. Company of Boston v. Lee & Kincaid Coal Company, 226 Ala. 262, 146 So. 408; Topeka Steam Boiler Works Company et al. v. United States Fidelity & Guaranty Company, 136 Kan. 317, 15 P.2d 416; Hollerman Mfg. Company, Inc. v. Standard Accident Ins. Company, 61 N.D. 637, 239 N.W. 741; McClelland et al. v. New Amsterdam Casualty Company, 322 Pa. 429, 185 A. 198; Concrete Steel Company v. Illinois Surety Company, 163 Wis. 41, 157 N.W. 543; Mansfield Lumber Company v. National Surety Company, 176 Ark. 1035, 5 S.W.2d 294; Johnson Electric Company v. Columbia Casualty Company, 101 Fla. 186, 133 So. 850, 77 A.L.R. 1; Pennsylvania Supply Company v. National Casualty Company, 152 Pa.Super. 217, 31 A.2d 453; Fidelity & Deposit Company of Baltimore, Maryland v. Rainer, 220 Ala. 262, 125 So. 55, 77 A.L.R. 13. And see, also, the many cases cited to the same effect in Corbin on Contracts, Vol. 4, pp. 165-167. Some of these cases emphasize the presence of conditions identical or very similar to the one in our bond providing that the surety “shall pay all persons who have contracts directly with the Principal for labor or materials * * And see, also, 17 Am.Jur.2d, Contractors’ Bonds, § 18, p. 204 where, citing cases, it is said: “In accordance with the principles discussed in the preceding sections, the courts generally sustain the right of a person furnishing labor or materials to recover on a private building contractor’s bond naming the owner of the property as obligee, conditioned that the contractor shall pay all claims for labor and materials or that he shall pay laborers and material-men.” Some of these authorities emphasize, as already indicated, that the intent of the parties is to be determined primarily from what they have put into their contracts, with the circumstances to be considered in case of uncertainty or ambiguity. Some also note that if the condition for the payment of claims for material and labor is not construed to give a right of action to such persons, then the provision is meaningless. Thus, it is stated in Corbin on Contracts, Vol. 4, Ch. 43, § 798, pp. 163-164: “ * * * the third party has an enforceable right if the surety promises in the bond, either in express words or by reasonable implication, to pay money to him. If there is such a promissory expression as this, there need be no discussion of ‘intention to benefit.’ We need not speculate for whose benefit the contract was made, or wonder whether the promisee was buying the promise for his own selfish interest or for philanthropic purposes. It is a much simpler question: Did the surety promise to pay money to the plaintiff?” And, again, at loe. cit. 173-174, § 800: “Words of ‘condition’ are not words of ‘promise’ in form; but in the case of a penal bond they must be construed to be words of promise, inasmuch as the only express words of promise are those in which payment of the penal sum is promised.” We are not dealing here with a gratuitous surety, who has sometimes been said to be a favorite of the law, but with a compensated, commercial surety which is to be held strictly to the terms of its contract. If the surety wishes to exclude this type of liability it may consider such a bond as is shown in Bourrett v. W. M. Bride Construction Company, 248 Iowa 1080, 84 N.W.2d 4, where all rights of action by any one except the named obligee in the bond were expressly excluded. The present surety is a Nebraska corporation and it should have been aware of the ruling of its own Supreme Court, as heretofore cited, and of the majority rule.

Counsel for the surety seem to concede that the numerical weight of authority is contrary to its contentions here; so did the Court of Appeals as to the “weight of the precedents”; we are not attempting to keep a “running score,” as that court said was an improper test, but it is material in any organized legal philosophy that we note a substantial weight of authority on a controversial issue. Defendant insists that Uhrich, supra, represents the established Missouri law, and also the correct interpretation of this present bond. We have discussed the facts and the holding in that case. Admittedly, there are cases supporting the tenor of defendant’s arguments and contentions. Maryland Casualty Company v. Johnson (D.C.Mich.), 15 F.2d 253; Standard Accident Ins. Company v. Blythe (Tex.Com.App.), 130 Tex. 201, 107 S.W.2d 880; Shaw v. O’Sullivan (Tex.Civ.App.), 334 S.W.2d 223; Gateway Barge Line, Inc. v. R. B. Tyler Company (La.App.), 175 So.2d 867; Brower Company v. Noise Control of Seattle, Inc., 66 Wash.2d 204, 401 P.2d 860. Brower, supra, seems to hold that the bond must expressly give a right of action to a materialman; perhaps Gateway and Shaw are in the same classification. That class of cases, generally, seems to proceed upon the theory of a motive of the owner to protect himself only, creating from this a supposed intent not to confer a direct benefit upon third party suppliers. In one recent case cited by defendant, James A. C. Tait & Company v. D. Diamond Corporation, 228 Or. 602, 365 P.2d 883, the court rather reluctantly followed the rule of its prior cases denying récovery (admitting it to be in the minority), but quoted at length and with apparent approval from Corbin on Contracts to the contrary; it finally concluded that the question should be left to the legislature in order to avoid disturbing existing contracts.

In a supplemental brief counsel rely very largely upon certain statements in the Restatement of Contracts, Ch. 6, § 133(a) and (b) to the general effect that a third person, in order to receive the benefit of a contract between others, should be a donee beneficiary or a creditor beneficiary; they insist that this plaintiff is neither. These sections, and the comments and illustrations thereunder, deal with legal theories supposedly applicable to contracts in general and in the abstract; we are influenced to a greater extent here by the reasoning of the specific, decided cases on facts like our own. We note, however, that the restatement does not really seem to exclude recovery in a situation such as we have; it states that a third person may be a donee beneficiary when it appears from the terms of the promise and the circumstances that the purpose of the promise is to confer upon such third person a right against the promisor to some performance not due from the promisee. We construe the terms of the present bond as evidencing an intent to confer a right of action upon material-men against the surety; unless the bond is so construed the provision for payment to such persons is meaningless.

Sundry Missouri cases are cited pro and con which we do not find of sufficient applicability to merit discussion. Fellows v. Kreutz, 189 Mo.App. 547, 176 S.W. 1080; City of St. Joseph ex rel. Consolidated Stone Company v. Pfeiffer Stone Company, 224 Mo.App. 895, 26 S.W.2d 1018; Black & White Cabs of St. Louis, Inc. v. Smith, Mo.App., 370 S.W.2d 669, and others. Both sides cite the last case, and it contains language conceivably favorable to each, but it arose on wholly different facts.

Counsel argue that the provision in question was necessary in order to prevent the filing of mechanics’ liens and thus to protect the owner-obligee; in support of this argument, they seem to say that the contractor may have only been required by the terms of his contract to furnish all labor and materials' and not to pay for them. The contract is not in evidence and we may assume no such provision; moreover, despite language in one or two old cases attempting to make some distinction between the phrases “to furnish” and to “pay for” (for which there may be some justification under other facts), we would regard it as rather ridiculous to hold that one who had contracted to furnish all labor and material for the construction of a building had not agreed to furnish it fully paid, at least in so far as liens are concerned. To hold otherwise would exalt technicalities over practicalities. Also, the other conditions of the bond here (as originally quoted) for full indemnity and reimbursement of the owner for all cost, damage, outlay and expense, constituted full protection to it as to mechanics’ liens. If the condition in this bond for payment did not mean that ma-terialmen and laborers should be paid, then it had no meaning. The condition was most specific in designating the class of suppliers who should be paid, namely, those who had contracts directly with the principal. We hold that it did impose upon the surety the duty to pay them, and upon unpaid materialmen the right to sue on the bond. In so far, as an intent of the parties may be necessary, such intent was shown by this wording of the bond itself, there being nothing in the bond to create an ambiguity, and nothing in the facts or circumstances to the contrary.

Reverting to the case of Uhrich v. Globe Surety Co., 191 Mo.App. 111, 166 S.W. 845, we have already related the factual situation there; the bond merely required full performance of the construction contract which, in turn, required the contractor to pay for all labor and materials and further permitted the owner to make direct payments. There was no such provision in the bond as we have here, conditioned to “pay all persons who have contracts directly with the Principal for labor or materials * * In our view that case is distinguishable, but to the extent that it may hold contrary to what we have said in this opinion it should no longer be followed. Commercial sureties should have long been aware of the status of the authorities on this subject. It appears to us that they have not, generally, been very adept at expressing their real meanings in such bonds, but have continued to cling to long outmoded and cumbersome forms, running back for generations.

As previously noted, the stipulation of facts did not state that plaintiff had furnished the extras agreed upon, although it did state their reasonable value. We cannot supply such an omission. The stipulation states that the original contract price was $2,805; the letter-exhibit constituting the contract states the figure as $2,850, creating an inconsistency. We adopt the figure stated in the stipulation, especially since that figure is also the amount stated in plaintiff’s petition. It is further stated in the stipulation that demands were made on both defendants for the sum of $3,046.-74, an amount in excess of the contract price, even with the extras added. However, if demands were necessary here, neither defendant pleaded any lack of proper demand, § 509.410, RSMo 1959, V.A.M.S., and the surety admitted that plaintiff “made demand” upon it, and that it refused to pay the sum demanded or any part thereof. The judgment against defendant Largen should be reduced to the sum of $2,805 with interest at 6% from September 19, 1961; judgment should be entered in favor of plaintiff and against Universal Surety Company, for $2,805 with interest at 6% from June 29, 1962. The judgment as to Largen, as thus modified, is affirmed. The judgment in favor of defendant Universal Surety Company is reversed, with directions to the trial court to enter judgment against it as herein indicated. It is so ordered.

All concur.


author: DOERNER, Commissioner.

text:
    Carl E. SUCHARA, Plaintiff-Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Appellant.
    No. 32314.
    St. Louis Court of Appeals. Missouri.
    Nov. 15, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 12, 1966.

      George A. Adolf, St. Louis, for defendant-appellant.
    Thomas M. O’Shea, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This appeal arises out of a suit for damages for personal injuries alleged to have resulted from a rear end collision. The case was tried to a jury and resulted in a verdict and judgment in favor of plaintiff for $3,000. Defendant’s timely post-trial motions were overruled and it brought this appeal.

The nature of the points raised by defendant obviates an extended statement of the facts. On November 20, 1962, at about 3:40 P.M., plaintiff, a 47 year old St. Louis police officer, accompanied by fellow-officer Arthur Boles, in line of duty was operating a police patrol cruising vehicle westwardly on Easton Avenue in that city. In compliance with an electric traffic light which showed red, plaintiff brought the cruiser to a stop east of the east curb line of Grand Avenue, an intersecting street. According to plaintiff, “ * * * approximately one minute” after coming to a stop and while waiting for the light to change his vehicle was struck from the rear by one of defendant’s streetcars, operated by its employee Luke Jones, Jr. Plaintiff’s evidence was that the impact was of such force that the cruiser was knocked forward a distance of about 4 feet despite the fact that its power brakes were on; and that it caused him to be first thrown backward and his head to hit a metal screen located between the cab and the prisoner’s compartment, and to then be pitched forward. Plaintiff’s principal complaint concerned an injury to his neck. Defendant’s evidence, as testified to by Jones, was that when he applied the brakes as the streetcar approached plaintiff’s vehicle the track brake did not engage in its usual manner and the streetcar suddenly and unexpectedly traveled about 5 feet more than he had intended. Defendant also produced evidence that a subsequent examination of the streetcar revealed that the ground wire for the magnetic track brake on the number one trunk was broken, which adversely affected the operation of the brakes on the front wheels.

At the request of the plaintiff the court gave Instruction No. 2, MAI 17.16, the verdict directing instruction under the rear end collision doctrine. Defendant requested and the court gave Instruction No. 3, MAI 29.02(2), conversing the negligence submitted in Instruction No. 2. Defendant also offered, but the court refused to give, Instruction No. A, and this refusal forms the basis for defendant’s first complaint. Instruction No. A read, in substance, that the jury’s verdict must be for the defendant if it believed that when the operator applied the brakes the streetcar went into a sudden and unexpected slide, that thereafter there was a sudden and unexpected failure of the brakes, and that the defendant was at all times exercising ordinary care in operating and maintaining the streetcar and was not negligent under Instruction No.-. Defendant’s refused instruction is not to be found in MAI, is somewhat of a hybrid, and in part is in the nature of an unavoidable accident instruction, Hogan v. Kansas City Public Service Co., 322 Mo. 1103, 19 S.W.2d 707, 65 A.L.R. 129, the giving of which is expressly prohibited by MAI 1.01. In part it was also a converse instruction of Instruction No. 2, plaintiff’s only verdict directing instruction. Defendant was therefore entitled to only one converse instruction, MAI 29.03, Notes on Use, and one was given on its behalf. While defendant mentions no such point in its points on appeal, in the argument portion of its brief it states that the court refused to allow it to argue its defense of unexpected sliding and brake failure to the jury. The record, on the contrary, shows that in its argument it dwelt on that defense at length. The court’s action in refusing to give Instruction No. A was proper.

During its portion of the argument to the jury the defendant, in addition to emphasizing its evidence regarding the unexpected sliding and brake failure of its streetcar, stressed that plaintiff had failed to offer, “ * * * any specific evidence as to any specific negligence” on the part of defendant. In the course of his rebuttal plaintiff’s counsel started to assert that plaintiff’s situation was that he was not doing anything wrong; that all he had to prove was that there was a collision; and that he didn’t know what caused it. At that point defendant’s counsel interrupted with the objection that, “The instructions are directly to the contrary. They have to prove negligence.” The court overruled the objection but admonitioned the jury that it should be guided by the instructions. Plaintiff’s counsel then concluded with the statement that the jury should read the instructions, “the verdict directing instruction that if there was a collision.” Defendant now complains that the court erred in overruling its objection. Technically, the plaintiff’s assertion was not directly contrary to Instruction No. 2 for that instruction did not require the plaintiff to “prove negligence” but left that issue for the determination of the jury. What the plaintiff was required to do in order to make a submissible case for the jury was to introduce sufficient evidence from which the jury might find that the defendant was guilty of the negligence charged. The plaintiff submitted his case under the rear end collision doctrine. His evidence was that his vehicle was and for an appreciable period had been at rest at the stop sign, that it was in a portion of the street where it was entitled to be, that the streetcar was under the control of defendant, and that under such circumstances it collided with the rear end of plaintiff’s vehicle. Plaintiff’s evidence was, in fact, corroborated by defendant’s motorman. Contrary to defendant’s argument, such evidence was not only sufficient to make a prima facie case under the rear end collision doctrine, but to make one of specific, not general, negligence. Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914; Crawford v. McNece, Mo., 388 S.W.2d 809. It is true that under the rear end collision doctrine a plaintiff is required to offer evidence not only of the collision, but of the other surrounding circumstances which make that doctrine applicable. Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360. It is apparent that in his argument plaintiff was attempting to answer defendant’s claim of his failure to produce any evidence as to any specific negligence, and that in the passage under consideration he was alluding to the surrounding circumstances, and not merely the collision alone. Considered against the background of defendant’s argument, and in the light of the objection made, the court did not err in its ruling.

In its next point the defendant claims that the court prejudicially erred in the admission of evidence in four unrelated instances. We have carefully reviewed each in turn, and cannot agree. During his direct examination, while relating the course of medical attention he had received, plaintiff testified that the day after the collision he was examined by Dr. Reh, one of the Police Department’s physicians, and over the objection that it was hearsay, was permitted to relate that Dr. Reh recommended that he have X-rays of his neck made at St. John’s Hospital and that he receive therapy treatment. The statement, of the doctor was not offered as proof of the matters stated therein but only for the purpose of establishing the course of the medical attention plaintiff received, and was therefore not hearsay. Still v. Travelers Indemnity Co., Mo., 374 S.W.2d 95; Bond v. Wabash R. Co., Mo., 363 S.W.2d 1. As to the second incident, plaintiff’s witness, Gerald Hoemeke, Personnel Research Manager of the Metropolitan St. Louis Police Department, produced and identified the Department’s medical record relating to plaintiff, and after testifying to their mode of preparation and his custody, was permitted to state over objection that the record showed that plaintiff had been absent from duty for 28 days, beginning on November 22, 1962, because of a neck injury. Defendant now asserts that the record was not admissible under the Uniform Business Records Act, § 490.660 et seq., RSMo 1959, V.A.M.S., and that the medical reason for plaintiff’s absence was hearsay. We need not decide the admissibility of the record under that Act, because, in any event, its admission was not prejudicial. This for the reason that such facts had theretofore been fully testified to by plaintiff. Harris v. Goggins, Mo., 374 S.W.2d 6; Hunter v. St. Louis Southwestern Ry. Co., Mo., 315 S.W.2d 689.

Next, defendant claims that the court erred in permitting Dr. Vacca, who treated plaintiff, to testify, over defendant’s objections, "* * * that his notes showed he saw plaintiff particularly for complaints for injuries ‘received’ in this occurrence * * Defendant is mistaken. The record shows that the word “received” does not appear; the word used by the doctor was “referable.” Nor did the doctor allude to “this occurrence” or even the date of the collision here involved, November 20, 1962; he referred instead to “an accident.” Lastly, defendant asserts that Dr. Vacca was allowed to testify, over defendant’s objection, regarding his record of statements, care and treatment made and recommended by other doctors who did not testify. The weakness in defendant’s position is that it did not object to the testimony to which it refers, nor move to strike it after it was given by the doctor. Its only objection when made was properly overruled because at that point the doctor had made only a brief reference to the past history given in connection with the plaintiff’s complaints existing at the time the examination was made, as the trial court was at pains to point out in overruling the objection made. And as the Supreme Court pointed out in Lesch v. Terminal R.R. Ass’n of St. Louis, Mo., 258 S.W.2d 686, 691, “ * * * Some inquiry by the physician of a patient as to the cause may be proper for intelligent treatment” citing Coghill v. Quincy, O. & K. C. R. Co., Mo.App., 206 S.W. 912, 913 and Albert v. Krey Packing Co., Mo.App., 195 S.W.2d 890, 894. No objection was interposed when the doctor testified to the matters to which defendant now refers, nor was any motion to strike made. That the only objection made was not a continuing one, and that the court would have ruled on an objection or motion had one been made is shown by the fact that subsequently the court twice did so; once when the doctor started to refer to what plaintiffs wife had told him over the telephone; and again when the doctor began to relate plaintiff’s statement of what another treating doctor had told plaintiff. We cannot, of course, hold that the court erred in overruling an objection or motion to strike when none was made. Dyer v. Globe-Democrat Publishing Co., Mo., 378 S.W.2d 570; Sandler v. Schmidt, Mo., 263 S.W.2d 35.

Defendant’s final point is that the court erred in allowing plaintiff to introduce evidence regarding an injury not pleaded, and that as a result the verdict for $3,000 was excessive by at least $2,500. Defendant points out, first, that in describing his complaints at the time he first visited a Dr. Dash plaintiff stated he had a stiffness and tightness in his neck and that it radiated from the bone at the base of his neck over to his right shoulder. While plaintiff’s petition did not specifically mention his shoulder it did refer to an injury to his neck and back. Defendant’s second allusion is to a brief reference by Dr. Vacca that his notes for May 28, 1964 showed that in the prior few days plaintiff had pains in his left shoulder and down to the top of his hand and into the second and third fingers. The doctor testified that in his opinion the pain emanated from an injury to the nerves in plaintiff’s neck. It would appear that such pain might be considered as an element of the injury to plaintiff’s neck and the nerves thereof, and resulting pain, which was pleaded. See Evans v. Clapp, Mo.App., 231 S.W. 79. In any event, in view of the plaintiff’s testimony that as a result of his injuries to his neck he lost 176 days from work; that he made 43 visits to various physicians over a two and one-half year period; that he underwent about a dozen physio-therapy treatments; that he was hospitalized for a myleogram procedure; that his work and home activities were limited; that he had endured pain and suffering over the entire period; Dr. Vacca’s testimony that plaintiff’s disability of neck pain, headaches and pain radiating to his upper extremities would be permanent; and the amount of the verdict, $3,000, we are not prepared to say that these brief references to stiffness and pain, if erroneously admitted, resulted in an excessive verdict, as defendant claims.

The judgment should be affirmed.

PER CURIAM.

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

Accordingly, judgment is affirmed.

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


author: CLEMENS, Commissioner.

text:
    Leo FARRIS and Rosie Lee Farris, Plaintiffs-Appellants, v. Adele H. HENDRICHS, Adrian W. Harper, Trustee, Sidney Kleg, Marie Whelan, and Gertie Marbain, Defendants-Respondents.
    No. 32040.
    St. Louis Court of Appeals. Missouri.
    March 15, 1966.

      Morton L. Schwartz, St. Louis, for appellants.
    Michael J. Ebeling, Clayton, for respondent Adele H. Hendrichs.
    Ronald M. Lending, St. Louis, for respondents Harper, Kleg, Whelan and Mar-bain.
   CLEMENS, Commissioner.

Plaintiffs lost their home by a foreclosure sale, and by this action they seek to compel a reconveyance. Upon trial in the circuit court, judgment went against plaintiffs, and they appeal.

Plaintiffs and defendants “agree” that we have appellate jurisdiction. Their briefs say that this action “did not directly attack title to real property, but was rather a suit to set aside a foreclosure and for an accounting.” That statement sounds incongruous and warns us that title to real estate may be involved in a constitutional sense. If so, the Supreme Court has exclusive jurisdiction (Art. V, § 3, Mo.Const., V.A.M.S.). We must determine our jurisdiction, even though it is challenged by neither litigant. Smith v. McNew, Mo.App., 381 S.W.2d 369[1]. So, we must both ask and answer the question: Is title to real estate involved where plaintiffs claim to have lost title to real estate by the defendants’ wrongful sale by trustee’s deed, and seek to compel a reconveyance? The answer will be found by considering “the judgment sought or rendered.” Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, banc, 2 S.W.2d 771 [11].

Where a judgment adjudicates title to real estate, appellate jurisdiction is determined from the judgment itself; but where, as here, the trial court denies relief, then appellate jurisdiction is determined by the relief sought, as shown by the pleadings. Nettleton Bank v. McGauhey’s Estate, supra, notes 10 and 11. So, we look first to the plaintiffs’ petition.

In essence, it alleged: In 1957 the plaintiffs bought a house from defendant Adele H. Hendrichs for $8,000. Part of plaintiffs’ payment was made by their $3,950 installment note to Mrs. Hendrichs, secured by a second deed of trust to defendant Adrian W. Harper, as trustee for Mrs. Hendrichs. Plaintiffs irregularly but fully paid the monthly installments, but in 1963 Mrs. Hendrichs wrongfully ordered the trustee to advertise the house for foreclosure sale. Meanwhile, Mrs. Hendrichs refused plaintiffs’ request for an accounting to show that their note was not delinquent, but she told them there was “nothing to worry about” if they would just keep paying her, which they did. Mrs. Hendrichs thereby fraudulently lulled plaintiffs into a sense of security. Despite plaintiffs’ protests and their offer to pay any demonstrated delinquencies and the expenses of the oncoming foreclosure sale, Mr. Harper forged ahead; and for the inadequate sum of $1,500, he executed a trustee’s deed to defendant Marie Whelan as a straw party for defendant Sidney Kleg. The deed was duly recorded. By an additional count, plaintiffs say that before the foreclosure sale Mrs. Hendrichs sold their note to defendant Sidney Kleg, and that they paid him $250 on his promise to reconvey the house to them subject to the prior deeds of trust; that in reliance of that promise they took no action to forestall the foreclosure sale; and that Mr. Kleg has refused to reconvey to the plaintiffs, as promised.. In both counts, plaintiffs prayed for an accounting to determine the amount of their indebtedness; that upon payment of that amount into court, the defendants be ordered to execute deeds of reconveyance to the plaintiffs; and if defendants fail to reconvey, that the court decree title in the plaintiffs. The defendants’ answers conceded nothing and sought no relief beyond dismissal of the petition.

Our reasoning will be guided by two Supreme Court cases — one general and one specific. The general guideline for determining whether a case involves title to real estate in the constitutional sense was drawn in the landmark case of Nettleton Bank v. McGauhey’s Estate, supra, note 8: “The judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases say, must take title from one litigant and give it to another.” If these plaintiffs are to have the relief they seek, the court must “take title from one litigant and give it to another.” So, our case meets the general test of Supreme Court jurisdiction.

The more specific jurisdictional boundary line was drawn in Rice v. Griffith, 349 Mo. 373, 161 S.W.2d 220[1]: “Earlier as well as later decisions of this court hold that suits to cancel deeds directly affect the title to real estate.” That controls here because these plaintiffs seek a reconveyance that would cancel the trustee’s deed by which they lost their title. Our case fits snugly within both the general and the specific boundaries set by the Nettleton and the Rice cases. Those same principles have been applied in other cases to hold that title to real estate is involved where, as here, plaintiffs sought to set aside trustees’ deeds after foreclosure sales. See Cordia v. Matthes, Mo.App., 122 S.W.2d 32; Starr v. Mitchell, Mo.App., 231 S.W.2d 299[2]; Carwood Realty Co. v. Gangol, Mo., 232 S.W.2d 399[1]; Casper v. Lee, 362 Mo. 927, banc, 245 S.W.2d 132[2].

Accordingly, we hold that this action involves title to real estate and that jurisdiction is in the Supreme Court, to which the case should be transferred. Section 477.080, V.A.M.S.; Art. V, § 11, Mo. Const., V.A.M.S.

PER CURIAM:

The foregoing opinion by CLEMENS, G, is adopted as the opinion of this court. Accordingly, the case is ordered transferred to the Supreme Court.

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


author: TITUS, Judge.

text:
    CITY OF POPLAR BLUFF, Missouri, a municipal corporation, Plaintiff-Appellant, v. Noah KNOX and Mrs. Noah (Eunice) Knox, his wife, Defendants-Respondents.
    No. 8578.
    Springfield Court of Appeals. Missouri.
    Dec. 12, 1966.

      Ted M. Henson, Jr., Poplar Bluff, for plaintiff-appellant.
    Byron Kearby, Poplar Bluff, for defendants-respondents.
   TITUS, Judge.

A warranty deed dated July 17, 1952, conveyed certain real estate in Poplar Bluff, Missouri, to defendant Eunice Knox. The description of the conveyance included that part of Bartlett Street lying east of F Street which had masqueraded as a thicket and briar patch since it was dedicated as a public way in 1887. Mrs. Knox, her husband (defendant Noah Knox), and their family have occupied and paid taxes on the property since the transfer. The disputed portion of Bartlett Street has been under fence by defendants for ten years and they have cleared the land and constructed thereon a seven or nine room house, a barn, and some sheds. Some or all of these structures (the record not being clear) are situate in Bartlett Street.

The City of Poplar Bluff commenced this proceeding by a petition to eject defendants from Bartlett Street. Defendants’ pleadings claimed Mrs. Knox was the fee simple title owner of the property and, alternately, asserted she was entitled to the property (including the street) by adverse possession, laches or estoppel. If these defenses were not favorably ruled in her favor, Mrs. Knox additionally asked the city be enjoined from using the street until such time as it made adequate compensation for all improvements defendants had made to the property, together with “such other orders, judgments and decrees as to the court seem just and proper.” Testimony to the Circuit Court of Butler County, Missouri, without a jury, indicated the value of defendants’ “dwelling house” alone (“just the building itself”) was $1,200 to $1,500. The trial court entered judgment “that the plaintiff [city] recover of defendant the possession of the land described as Bartlett Street * * * upon the condition and as condition precedent to the recovery of possession that the plaintiff deposit with the Clerk of the Court the sum pf Fifteen Hundred Dollars for the use and benefit of the defendant Mrs. Noah (Eunice) Knox for the reasonable value of the improvements she made on said land and that all costs of this action are taxed against the plaintiff.”

The city’s appeal, taken to the Supreme Court, complained only of those portions of the judgment requiring it to deposit $1,500 for the use and benefit of Mrs. Knox and taxing the costs against the city. The Supreme Court determined no grounds existed to entertain the matter there and transferred the appeal to us. Title to real estate is but collaterally involved and that part of the judgment subject to appeal is a money judgment and one assessing court costs. The amount in dispute gives us jurisdiction. Corbin v. Galloway, Mo.App., 382 S.W.2d 827, 829-830(2); State ex rel. Shaul v. Jones, Mo.App., 335 S.W.2d 468, 472; V.A.M.S.Const. Art. 5, §§ 3, 13; V.A.M.S. § 477.040.

Our primary concern is with V.A. M.R. 89.16 and V.A.M.S. § 524.160. Although counsel has directed us to no authority from any jurisdiction dealing with the problem at hand, we are of the opinion the rule and statute has no application where the property concerned, as here, is a dedicated public street. Poplar Bluff, a city of the third class, is vested with the right of exclusive control over its streets. City of Caruthersville v. Cantrell, Mo.App., 230 S.W.2d 160, 165(5, 6). The title acquired by the city in Bartlett Street differed from the ordinary rights a private individual acquires in real estate by general conveyance. The recording of the plat vested the fee of the land described or intended for public use in the city “in trust and for the uses therein named, expressed or intended, and for no other use or purpose [our emphasis].” Land dedicated to a public use as a street cannot be diverted from that use and a city has no right to permanently obstruct a public highway with a building, and an ordinance undertaking to do so is ultra vires and void. Peters v. City of St. Louis, 226 Mo. 62, 125 S.W. 1134, 1136(4). The neglect or failure of a city to physically open and improve a dedicated street to make its actual use possible does not diminish the public easement vested in the city in trust and no statute of limitations extends to any lands given, granted or appropriated to any public use. V.A.M.S. § 516.090; City of Caruthersville v. Huffman, 262 Mo. 367, 171 S.W. 323, 325(2).

V.A.M.R. 89.16 and V.A.M.S. § 524.160 (quoted in footnote 1) and accompanying rules and statutes are commonly known as “betterment acts” or as “occupying claimant laws.” 42 C.J.S. Improvements § 6 b, p. 430; 10A Thompson on Real Property, § 5292, pp. 624-626. The compensation to which a good faith occupant is entitled for improvements he makes on the land of another is generally held to be the amount by which the owner is benefited, i. e., the amount by which the value of the land has been enhanced by the improvements and not the actual value of the improvements themselves or the amount the improvements cost the occupant. If the Missouri betterment act was to be applied here, it is apparent the parties and the trial court assumed an erroneous theory in undertaking to discover what might have been due Mrs. Knox.

The primary rule of statutory construction requires ascertainment of the legislature’s intent and purpose for enacting a law. The reasons fostering the betterment acts are ably narrated in State ex rel. Shaul v. Jones, Mo.App., 335 S.W.2d 468, 470-472(1-3). Equity’s innovations upon the old common law, as well as those accomplished by statute, were to prevent unjust enrichment of the owner of the land. This reason mixed with holdings a city may not permit use of public streets otherwise than as a public way, resolves a conclusion an unauthorized structure upon a thoroughfare constitutes detriment rather than an enhancement to the value of the land. The ends the betterment act intends to serve would seldom, if ever, exist in respect to public street encroachments.

More pertinent to our problem is the statutory construction maxim that governmental units “are not within the purview of a statute unless an intention to include them is clearly manifest, especially where prerogatives, rights, titles or interests of the state would be divested or diminished.” Any requirement that a city should pay for encroachments made on a public street would surely diminish its right to have the way unencumbered by acts of third persons. In addition to the rule and statute quoted, supra, other sections of Missouri’s betterment act permit the plaintiff in an ejectment suit, with leave, “to relinquish the land to the occupying claimant and to recover the value thereof, aside from the improvements.” V.A.M.R. 89.19. Also, if the value of the land sans the improvements exceeds the value of the improvements, under V.A.M.R. 89.22 the court may divide the property “between the occupying claimant and the plaintiff, according to their respective rights.” These are things a city obviously cannot legally do with a dedicated street and serve to attest there was no intent the betterment act would govern situations covering unauthorized construction in public streets.

The Supreme Court of Arkansas has held its betterment statute does not apply to public agencies or cases where structures have been erected in public streets. City of Little Rock v. Jeuryens, 133 Ark. 126, 202 S.W. 45, 49(6); Martin v. Roesch, 57 Ark. 474, 21 S.W. 881, 882-883 ; Baiers v. Cammack, 207 Ark. 827, 182 S.W.2d 938, 940. The Arkansas statute (§ 34 — 1423) is similar to that in Missouri and other states. We see no cause to disagree with the reasoning and holdings in the last cited cases.

V.A.M.S. § 77.520 provides the City of Poplar Bluff through its council may prohibit and prevent all encroachments into and upon the streets, avenues, alleys, and other public places of the city. City of Caruthersville v. Cantrell, supra, Mo.App., 230 S.W.2d 160, 164(5,6). A party who has innocently erected structures on a street is entitled, in case of ejectment, to remove them if he so desires and should be afforded a reasonable time so to do. In other words, the good faith occupant should be permitted to do voluntarily what the city would have the right to do under the statute and authorized ordinances. City of Little Rock v. Jeuryens, supra, 133 Ark. 126, 202 S.W. 45, 48(4); 42 C.J.S. Improvements § 4, p. 426. The city cannot permit the structures to remain in the street and could not possibly receive any benefits therefrom. The justice of this case requires that defendants be permitted to remove all improvements they have made. Accord, Brumbaugh v. Ashton, 208 Or. 521, 302 P.2d 1018, 1019. The city has made no claim of damages nor has it ever asserted entitlement to rent or profits. Therefore, none of these items should have any consideration in this case.

Neither the transcript nor the exhibits permit us to precisely determine what buildings or parts of buildings, fences, or other improvements made by defendants are located and. situate within the dedicated boundaries of Bartlett Street. As already indicated, it is necessary to reverse and remand this cause to the circuit court so appropriate action may be taken and judgment entered in accordance with this opinion. Additional hearing of evidence will be unnecessary if the parties can agree to a suitable description of the improvements actually encroaching on Bartlett Street and which of them need to be removed; otherwise additional testimony may be required to establish these facts. In any event defendants should be permitted and allowed a reasonable time to remove all structures from the street they desire to retain, and costs should be assessed in the manner provided by V.A. M.R. 77.16.

The judgment of the trial court is reversed and the cause is remanded for further proceeding in accordance with this opinion.

STONE, P. J., and HOGAN, J., concur.

      . “If a judgment or decree of dispossession shall be given in an action for the recovery of possession of premises, or in any real action in favor of a person having a better title thereto, against a person in the possession, held by himself or by his tenant, of any lands, tenements or hereditaments, such person may recover, in a court of competent jurisdiction, compensation for all improvements made by him in good faith on such lands, tenements or hereditaments, prior to his having had notice of such adverse title.”

      . V.A.M.S. § 445.070, subd. 2; Wolf v. Miravalle, Mo., 372 S.W.2d 28, 34(6); Ginter v. City of Webster Groves, Mo., 349 S.W.2d 895, 900(4); Martin v. City of St. Joseph, 136 Mo.App. 316, 117 S.W. 94, 95(5); Marks v. Bettendorf’s, Inc., Mo.App., 337 S.W.2d 585, 593(11); Bell v. Walkley, Mo.App., 27 S.W.2d 456, 458 (3).

      . Wolf v. Miravalle, supra, Mo., 372 S.W.2d 28, 34(6); City of St. Louis v. Missouri Pac. Ry. Co., 114 Mo. 13, 21 S.W. 202, 206(5), par. 3; Heitz v. City of St. Louis, 110 Mo. 618, 19 S.W. 735, 736.

      . McAboy v. Packer, 353 Mo. 1219, 187 S.W.2d 207, 210(8, 9); Staub v. Phillips, 307 Mo. 576, 271 S.W. 365, 368(2); 42 C.J.S. Improvements § 11a, pp. 446-448; 27 Am.Jur. Improvements § 22, pp. 276-278.

      . State v. Rooney, Mo., 406 S.W.2d 1, 3(1); United Air Lines, Inc. v. State Tax Commission, Mo., 377 S.W.2d 444, 448(4); Wright v. J. A. Tobin Const. Co., Mo. App., 365 S.W.2d 742, 744(1); 82 C.J.S. Statutes § 323, pp. 593-613; 50 Am.Jur. Statutes § 306, pp. 293-294.

      . State ex rel. Askew v. Kopp, Mo., 330 S.W.2d 882, 888(7); Hayes v. City of Kansas City, 362 Mo. 368, 241 S.W.2d 888, 892(6); 82 C.J.S. Statutes § 317, pp. 554-558.

      . Additional reasons the betterment acts have no application here are recited in this reported case.


text:
    Grayling ROBBINS, a Minor, by Patricia Cookemboo, Next Friend, and Patricia Cookemboo, Plaintiffs-Appellants, v. Thomas MYERS, Defendant-Respondent.
    No. 32350.
    St. Louis Court of Appeals. Missouri.
    July 19, 1966.
    Vincent M. Igoe, St. Louis, for appellants.
    Evans & Dixon, by John C. Shepherd and Paul V. Gilbert, St Louis, for respondent.
   CLEMENS, Commissioner.

At the threshold of this appeal we are faced with the question of our jurisdiction. If the “amount in dispute” exceeds $15,000, appellate jurisdiction is in the Supreme Court. Mo.Const., Art. 5, § 3, V.A.M.S.; § 477.040, V.A.M.S.

By Count I of the petition, minor plaintiff Grayling Robbins, by his next friend, sued defendant for $15,000 for personal injuries. By Count II, his mother, plaintiff Patricia Cookemboo, sued defendant for $750 medical expenses arising from the boy’s injuries. At the close of plaintiffs’ evidence, the trial court granted defendant’s motion for a directed verdict. Judgment was entered for the defendant, and the plaintiffs appeal.

When a plaintiff appeals from a judgment denying recovery, the amount claimed in the petition is the “amount in dispute” for determining appellate jurisdiction. Nydegger v. Mason, Mo., 315 S.W.2d 816[1]; Myers v. City of Palmyra, Mo., 355 S.W.2d 17[1], 92 A.L.R.2d 791. Here, the minor plaintiff sued for $15,000 and the adult plaintiff sued for $750. When co-plaintiffs appeal from a judgment denying recovery and the aggregate amount sought exceeds $15,000, as it does here, the Supreme Court has appellate jurisdiction. City of St. Louis v. Essex Inv. Co., 356 Mo. 1028, 204 S.W.2d 726[3]; O’Dell v. Division of Employment Security, Mo., 376 S.W.2d 137[1].

So, the appeal must be transferred to the Supreme Court. § 477.080, V.A.M.S.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the cause is ordered transferred to the Supreme Court.

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