author: NORTHCUTT, Justice.

text:
    Robert Columbus FOSTER, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 7556.
    Court of Civil Appeals of Texas. Amarillo.
    Dec. 20, 1965.
    Rehearing Denied Jan. 24, 1966.

      J. Q. Warnick, Jr., Lubbock, for appellant.
    Fred West, County Atty., Lubbock, for appellee.
   NORTHCUTT, Justice.

This is a driver’s license suspension case. Pursuant to the provisions of Vernon’s Ann.Civ.St. Article 6687b as pleaded by Foster, hereinafter referred to as appellant, the Texas Department of Public Safety caused Robert Columbus Foster to appear before the Corporation Court of the City of Lubbock, Texas, petitioning said court for affirmative findings by the judge of said court that the appellant had committed an act calling for an automatic suspension of driver’s license; that pursuant to said action taken by the judge of said court in which an affirmative finding was rendered in favor of the Department of Public Safety said Department of Public Safety did on or about September 30, 1964, issue its order to be effective the seventh day of October, 1964, suspending any and all commercial, operator’s and chauffeur’s license issued to appellant. From that order of suspension the appellant appealed to the County Court at Law No. 1, Lubbock County, Texas.

Texas Department of Public Safety, hereinafter referred to as appellee, answered in the County Court at Law No. 1 and moved for summary judgment on the ground that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. In said motion there were several reasons set out upon which the motion was based. Attached to the motion for summary judgment was an affidavit by the Deputy Custodian of Drivers’ Records, Texas Department of Public Safety, showing appellant’s traffic violations. The affidavit stated appellant had been convicted of four violations in a consecutive period of twelve months and each of the notices of conviction reflected that appellant was assessed and paid a fine and cost in each case and giving other faets as to why the Department was entitled to summary judgment.

The notices of conviction were not attached to the original motion for summary judgment nor the affidavit. Before a hearing was had on the motion for summary judgment the Department of Public Safety filed its supplemental motion for summary judgment in conjunction with the original motion for summary judgment by adding abstracts of judgment of convictions of Foster but did not swear to said supplemental motion. The original notices of conviction were attached to the pleadings herein by order of the trial court at the request of appellant. The notices of conviction gave the name and address of appellant; the number of his commercial operator’s license; the registration number of the vehicle involved; the nature of the offense as speeding; the date of hearing; the plea; the judgment; and the amount of the fine. Article 6701d, Sec. 152.

The County Court at Law rendered judgment in favor of the Department of Public Safety cancelling the appellant’s license. From that judgment the appellant perfected this appeal. By appellant’s first point of error it is insisted that notices of conviction attached to the appel-lee’s supplemental motion for summary judgment could not have been considered by the trial court since no proper affidavit was attached to the supplemental motion identifying the notices as coming from the official records of the Texas Department of Public Safety.

Appellant did not in any manner deny he had been convicted and paid fines as contended in the motion for summary judgment. Neither did he contend or show he was unfairly surprised by the failure of the Department to attach the exhibits to the motion. Article 3731a, Sec. 3. Although no affidavit was attached to the supplemental motion and neither were the notices of conviction attached to the motion for summary judgment, the exhibits being the notices of conviction were introduced in evidence and we think such intrinsic evidence was admissible since appellant in no way denied the correctness and truthfulness of such instruments and did not even contend he was unfairly surprised as provided under said Article 3731a, Sec. 3.

The affidavit attached to the notice for summary judgment was made by the Deputy Custodian of Driver and Vehicle Records Division, Texas Department of Public Safety, and stated upon personal knowledge that the operating record of Robert Columbus Foster, the holder of Texas Commercial Operator’s License No. 0157642, showed convictions for moving violations of the traffic laws of the State of Texas then sets out certain dates and counties where offenses were committed. Three of the offenses were listed as speeding and the fourth as failure to control speed. The affidavit further states that judgment of conviction had been entered against Foster for the above mentioned moving violations all of which were evidence by notice of conviction certified to the Department of Public Safety by the convicting courts in accordance with the law. The affidavit further stated that each of the notices of conviction reflected that Robert Columbus Foster was assessed and paid a fine for the moving violations showed therein and that the four moving violations arose out of different transactions in a consecutive period of twelve months. If those statements were true and properly proven the Department would be authorized to cancel appellant’s license. They are in no way denied in this record. Since the records of four convictions were shown there was no genuine issue as to any material fact. Cooley v. Texas Department of Public Safety, Tex.Civ.App., 348 S.W.2d 267; Wood v. Department of Public Safety, Tex.Civ.App., 311 S.W.2d 274.

The only objection that appellant made in the trial court as to the matters set out in the supplemental motion for summary judgment which sets out that on July 18, 1963, that the petitioner committed the offense of speeding in Barstow, Texas, was that there were no pleadings or affidavits that on such date the appellant committed the offense of speeding. It is true the affidavit for summary judgment showed the offense happening on July 18, 1963, was “failed to control speed.” The notice of-convictions introduced showed the offense on July 18, 1963, was speeding. It is stated in the case of Texas Department of Public Safety v. Miller, Tex., 386 S.W.2d 760, as follows:

“The purposes of the statute are not served by giving emphasis to immaterial matters. The suspension of a driver’s license and the duration of the suspension are matters lying within the discretion of the Department of Public Safety. Texas Department of Public Safety v. King, Tex.Sup., 366 S.W.2d 215 (1963). The prerequisite to the exercise of this discretionary power is a proper showing that a license holder is an habitual violator of the traffic law, i. e., that he has been convicted of four moving traffic violations which violations occurred within a twelve month period. It is the convictions that are of importance and no substantial rights of the respondent were prejudiced by the use of the notices or abstracts to establish such convictions. If the notice of a conviction be inaccurate it may be corrected by the use of properly authenticated copies of the docket of the justice of the peace or the corporation judge as was done in Department of Public Safety v. Guleke, Tex.Civ.App., 366 S.W.2d 662, no wr. hist. (1963). In fact, the notices or abstracts may be corrected by either party but until corrective measures are taken, such notices or abstracts are to be accepted as evidence of ‘the matters stated therein.’ ”

We cannot say “failed to control speed” does not mean speeding. The affidavit of summary judgment referred to the offense as happening on July 18, 1963, and the notice of conviction attached to the record herein shows the offense happening on July 18, 1963, to be speeding. We cannot say the error, if any, was not corrected. Summary judgment is proper in a driver’s license suspension case when no material issue is raised. Whittington v. Department of Public Safety, Tex.Civ.App., 342 S.W.2d 374 (N.R.E.); Texas Department of Public Safety v. Miller, supra. Where a party’s motion for summary judgment has support in extrinsic evidence which will sustain his contention that there is no genuine issue of fact, the other party should be required to come forward with more than a mere denial pleading, even a sworn one, in order to overcome the force of the motion. Savoy v. Graham Memorial Auditorium Ass’n, Inc., Tex.Civ.App., 329 S.W.2d 352. Appellant’s first point of error is overruled.

By appellant’s second point of error it is contended that the notices of conviction designate the convicted party as the holder of an operator’s license when appellant was the holder of a commercial operator’s license and therefore such notices would not have been admissible against this appellant. Appellant states in his brief that he requested the trial court to send to this court the actual and original notices of con-

viction. The trial court entered its order sending the original notices of conviction to this court. Such order and notices of conviction were in the transcript. All of said notices designated the convicted party as the holder of a commercial operator’s license No. 0157642 and all other matters as required under Article 6701d, Sec. 152. Appellant’s second assignment of error is overruled.

As held in the case of Texas Department of Public Safety v. Miller, supra, it is stated:

“It is the convictions that are of importance and no substantial rights of the respondent were prejudiced by the use of the notices or abstracts to establish such convictions.”

Especially since appellant in no way denied his guilt as alleged and shown in this record and neither did he controvert the motion for summary judgment by affidavit, we do not think the irregularities, if any, relied upon herein are such as to prejudice the rights of appellant as four convictions were shown. We have carefully considered all of appellant’s assignments of error and overrule all of them.

Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    Lucy K. MAZDRA, Administratrix of the Estate of Richard F. Mazdra, Deceased, Respondent, v. SELECTIVE INSURANCE COMPANY, a Corporation, Appellant.
    No. 51261.
    Supreme Court of Missouri, Division No. 2.
    Jan. 10, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 14, 1966.
    Donald Gunn, Donald Gunn, Jr., Hyman G. Stein, Charles Alan Seigel, St. Louis, for respondent.
    John D. Schneider, St. Louis, for appellant.
   PRITCHARD, Commissioner.

This is a suit in equity to reach and apply bodily injury proceeds of appellant’s automobile insurance policy to a judgment for wrongful death of respondent’s intestate. Section 379.200, RSMo 1959, V.A.M.S. Separate actions in garnishment against appellant were ordered consolidated with said equity suit upon appellant’s motion thereon, and the cases were heard as one according to the trial court’s findings, and the judgment, reciting the consolidation, disposes of all issues “herein joined.” The original default judgment for which appellant is said to be liable under its policy was for the amount of $25,000, and that amount plus interest, $9,375, from the date of rendition thereof, July 24,1958, to the date of the judgment herein appealed from amounts to a total of $34,375. The original judgment for wrongful death was granted against one Mary I. Hughes, the tort-feasor, who was driving a 1955 Pontiac sedan at the time of the occurrence, April 11, 1956, which resulted in the death of plaintiff’s intestate. Appellant’s policy of insurance was issued to Noel Wilson, the named insured. Appellant declined to defend the original tort action, and here resists imposition of liability under the policy upon the ground that said Mary I. Hughes was not afforded coverage under the “omnibus” provision of the policy in that she was not driving the named insured’s automobile with his permission, express or implied.

The “omnibus” provision of appellant’s policy extending coverage to others than the named insured is: “111(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.” (Italics added.) There seems to be no contention that Mary I. Hughes had an express permission from Wilson to drive the Pontiac station wagon on the date of the collision. The issue is, and our review is concerned with, whether or not there was sufficient and substantial evidence adduced from which there exists a legitimate inference of Wilson’s permission (i. e., an implied permission) to Mary that she could drive the station wagon. Varble v. Stanley, Mo.App., 306 S.W.2d 662, 667 [8]. The evidence conflicts considerably with respect to a course of conduct of Wilson, the named insured, and Mary as it concerns the driving by Mary of the automobile.

Wilson operated an ornamental iron and fire escape fabrication business from his residence, and a shop to the rear thereof, located at 18th and Lynch Streets in St. Louis, Missouri. Prior to the occurrence in question he was separated from his wife, and upon occasions he had the custody of his three minor children in his home. According to witness Willis W. Pearson, who resided just behind Wilson, and who worked for him in welding iron in the shop, Mary was at Wilson’s home taking care of the children and acting as his housekeeper. She also would bring telephone messages from the home to the shop, and bring out hot coffee to the men. Pearson testified that he saw Mary driving the subject 1955 Pontiac station wagon in the presence of Wilson. He testified: “I saw her driving that station wagon ever since he had got it, it was new, she was buzzing around in it practically daily to my knowledge and on several occasions she had used the station wagon and drove us out in the field and picked us up after work.” Pearson testified further that he didn’t hear the man (Wilson) tell her that “here’s the keys and take the car,” but he saw her driving during the winter of 1956 and up to April 11, 1956.

A copy of Wilson’s statements given appellant’s claims investigator attached to its answer as a part thereof (not objected to by respondent) shows that Mary worked for him and at no time had she permission to drive his car; there was no need for her to drive his car in the course of his business; she was employed to look after the office, do typing and answer the telephone when he was away. By a supplemental statement, Wilson stated that on the day of the accident and on all other days on which he was away from 1301 Lynch, he left a set of car keys with Mary Hughes, his employee. The keys were on a ring with his garage keys. He used the garage as a workshop. He left these keys with her in case she had to leave and she could lock up the place when he was gone. The other set of keys was with him on the job the day of the accident. Wilson’s deposition given in another case was read in evidence. (Such deposition, although objected to during the trial, is here used by both parties.) Therein Wilson testified that Mary worked for him six months until August or September, 1956. At the time of the accident she was not on his official payroll, but was working, looking after the children and answering the telephone. She was driving the automobile at the time of the accident, and the best he could say about how she happened to be driving it was the fact that she had the keys. “They were on a chain along with my house and shop keys, see? Now, why she had those is, I had a double set of all keys, and I might send someone to the shop for some material or something, so it was better that she had the keys and she could let them in. That’s how she came to have them.” Further he testified, “Q. Now, you had given those to her? A. Well, I laid them on the dresser. Q. On the dresser in the house so that she could take them? A. So if someone came there to the shop, they could get in. Q. In other words, she was staying with you at that time? A. No, just days. Q. I mean days. A. Yes. Q. She had access to the house, in other words, to the dresser? A. Yes; that’s where the ’phone was. See, there’s a 'phone in the house; there’s a ’phone in the shop behind the house. * * * Q. So these keys were left on the dresser for her use? A. Well, not particularly for her use; for anyone’s use who come and wanted to get in the shop. * * * Q. She had driven that car on previous occasions, had she not? A. Not to my knowledge. I didn’t know she could drive or anything. * * * Q. Did you own a station wagon at one time? A. I own a station wagon now. That’s what she had the wreck in. Q. Oh! Now, didn’t she drive that station wagon on previous occasions to this? A. Not to my knowledge.”

Mary I. Hughes, the driver of the Pontiac station wagon, testified that she went to work for Wilson on March 23, 1956, having perviously worked in a tavern as a barmaid where she met Wilson. Her duties were to watch Wilson’s children and to take care of the telephone; they did not include driving the car. Prior to April 11, 1956, Wilson gave her permission to drive the station wagon, and she did drive it both with and without his permission. With respect to her statement given appellant’s investigators, in which she stated she took the automobile without her employer’s permission, she testified further: “I was talking purely about that day. On that day he did not have no idea, no knowledge, no nothing, of me taking that car and that is the truth. A couple of times we had been out together and he would give me the keys, and he would be busy and I would have to go to the grocery and he would say, ‘You take the car and go to the store and get the groceries,’ little things like that, but on this day, the day the accident happened, he had no knowledge that I had the car at all.” After the accident Mary continued her employment with Wilson. They were married on October 4, 1957. On cross-examination by respondent she testified: “Q. On occasions prior to April 11, 1956, did you drive Mr. Wilson in the car ? A. I couldn’t tell you whether it was before or after because I didn’t quit driving the car after the accident only it took me some weeks to get some nerve up. * * * Q. From the time you went to work for Mr. Wilson you did drive the Pontiac automobile? A. Well, I drove it before the accident, yes. Q. You drove it regularly? A. No, I didn’t drive it regularly. Q. You said you used it to go out and pick up groceries ? * * * A. I don’t know if it was before or after it, that is, the only time we had to worry about groceries was when the children were there.” On the day of the collision, Mary took the automobile to the Stork Tavern to visit her friends, and it was on the return trip that the accident happened.

Although it is true, as contended by appellant, and stated in the Varble case, supra, that a person claiming an implied permission from an owner to drive his automobile must prove it, and that no implied permission can arise merely because someone obtained possession of the property and used it without the knowledge of the named insured, yet such permission may originate in the language or conduct of the named insured. Hanover Insurance Company v. Abchal, Mo.App., 375 S.W.2d 605, 608 [1-4] (“Usually, an implied permission arises from a course of conduct of the parties over a period of time prior to the use in question. Alabama Farm Bureau Mutual Casualty Insurance Company v. Robinson, 269 Ala. 346, 113 So.2d 140”). See also 7 Am.Jur.2d Automobile Insurance § 113, p. 425; Annotations: 72 A.L.R. 1398; 126 A.L.R. 550; 160 A.L.R. 1202; 5 A.L.R.2d 610; 7 Appleman, Insurance Law and Practice, § 4365, p. 300; 6 Blash-field, Cyclopedia of Automobile Law and Practice, § 3943, p. 614.

Under appellant’s Point 1(A), by which it contends that there was no substantial evidence to support a finding that the use of the automobile was with the permission of the named insured, it is first argued that no permission can be implied from usage of the car without the insured’s knowledge. The cited case of Nye v. James, Mo.App., 373 S.W.2d 655, 661, had the issue of knowledge (held lacking) of the named insured through equivocal testimony of her divorced spouse who had taken possession of the automobile and delivered it to his cousin for repair. Thereafter, one member of the family drove it at the time of plaintiff’s injuries. In Varble v. Stanley, supra, there was a lack of evidence that the named insured had any knowledge that the vehicle was being driven by the tort-feasor. [It was said in that case, loc. cit. 306 S.W.2d 667, by way of partial dictum, “If the evidence showed that the father was in the sight and vicinity of the car when the boy left with it, we would have a situation which might call for reasonable deduction that the father, at least impliedly, assented to the taking, but we have no right to infer it from the facts shown here.”] In Hanover Insurance Company v. Abchal, supra, loc. cit. 375 S.W.2d 609, it was held that Abchal, the tort-feasor, had never used any automobile or the insured vehicle with the permission of the named insured, and that there was nothing in the dealings or association of the two that would justify implying that Abchal had permission to use the vehicle for his own personal use or social purposes for a period of several weeks while the named insured was on vacation. Undoubtedly, as appellant contends, there must be knowledge of the facts in order that there may be acquiescence of a named insured which would give rise to an implied permission of another to use an insured automobile. 45 C.J.S. Insurance § 829c (2), pp. 897-898.' The fallacy, however, of appellant’s argument is that there is evidence in the case .that not only did Wilson give express permission for Mary to use the Pontiac on occasions (by which he must have had knowledge that she drove it) but also that she drove it in his presence (“I saw her driving that station wagon ever since he had got it, it was new, she was buzzing around in it practically daily”), from which it may also be inferred that he had knowledge that his automobile was being driven by Mary. It is not a case of Mary obtaining possession of Wilson’s vehicle without his knowledge, and the Nye, Varble and Hanover cases, supra, are therefore inapplicable.

Appellant next argues that the testimony about Mary using the car to get groceries, or driving Wilson (and Pearson) to and from their work, raises no implication except that she had permission to use the car at such times as she was instructed by Wilson, and for his business. In 45 C.J.S. Insurance § 829, at page 900, the statement is made, “In the absence of express consent to an employee to use his employer’s car, an implied permission or consent extends only to its use within the scope of the employment, apart from slight deviations, unless there has been a permission to use the car generally or a course of conduct or a practice with the owner’s acquiescence, reasonably indicating the employee’s right to assume permission in the particular circumstances.” Although Mary, when she testified for appellant at the trial, was not asked as to what personal use she made of the Pontiac when “she was buzzing around practically daily,” yet the reasonable implication is that she was using it for personal missions — she could not be always using the car for Wilson’s business. There was no evidence of any prohibitions or restrictions upon her driving. Compare American Casualty Co. of Reading, Pa. v. Windham (D.C.Ga.), 26 F.Supp. 261 (aff’d CCA 5th, 107 F.2d 88), where there was testimony, held to be improbable, of a prohibition on driving beyond a county, the court saying there was no express limitation of use, and at loc. cit. 26 F.Supp. 263 [4], “In the absence of express prohibition, permission to use car may be implied. (Citing cases).” Thus an inference could be made that Mary had permission to use the Pontiac generally and not only when instructed by Wilson, and for his business, the latter of which obviously would be an express permission. The course of conduct here between Wilson and Mary, to be found from the trial court’s determination of conflicting testimony and the credibility thereof (on testimony before the court as against a deposition and extrajudicial statements), is sufficient for the finding that there was an implied permission from Wilson to Mary which would give her coverage under said “omnibus” provision of appellant’s policy. That course of conduct is to be found from the following: Mary drove the Pontiac practically daily in Wilson’s presence, both with and without permission; on occasions, he gave her express permission to drive the automobile for his business; a set of keys was accessible to her; there were no prohibitions or restrictions placed by him on her driving; and despite his testimony to the contrary, as contained in his deposition, the facts are ample to show that he had knowledge of Mary’s prolonged, frequent and habitual driving prior to the accident, and that he acquiesced therein. Tomasetti v. Maryland Casualty Co., 117 Conn. 505, 169 A. 54.

A further argument made by appellant is that any interpretation other than that Mary had permission to drive the car only when she was given express permission to do so takes flight upon her testimony that she did not have permission to use it at the time and place of the accident. That argument might be valid if it were the only evidence on the subject of express or implied, permission. Her testimony, being a conclusion of the ultimate fact of permission, express or implied, was not binding upon the court, and the other evidence, tending to show an implied permission, did not take flight upon her testimony. Raw v. Maddox, 230 Mo.App. 515, 93 S.W.2d 282, is not in point.

Appellant’s Point 1(B), that “The use made of the automobile was for a social purpose, which was a marked deviation from any permission that could, arguendo, be implied,” is without merit for this reason: This is not a case of deviation from an employee’s prescribed use, or that of a single, specified use from which there was a deviation. Appellant’s cited cases of Speidel v. Kellum, Mo.App., 340 S.W.2d 200; Farmers Mutual Automobile Insurance Co. v. Noel (W.D.Mo.), 211 F.Supp. 216, and others espousing the “minor deviation” rule, are not in point. This case is one where the driver, Mary, had a continuous implied permission to make use of the automobile for her own purposes. On the day of the accident she was not on any mission of her employer. Point I is ruled against appellant.

In its reply brief, appellant denominates as “New Matter” the fact that respondent did not join Mary I. Hughes as a party defendant. The contention, here raised for the first time, is that she is an “indispensable party” to the proceedings. The argument is that said § 379.200 makes her so by the words, “ * * * the judgment creditor may proceed in equity against the defendant and the insurance company * * (Italics ours.) We deem that Mary I. Hughes is not an indispensable party in the sense that her rights are affected by the instant consolidated suits. The judgment against her of July 24, 1958, was final, and her liability was established thereby. The case of Rutherford v. National Indemnity Co., D.C.Mo., 113 F.Supp. 640, at page 641 [3], had this issue. It was there said, “The Homan case is also authority for our holding the insured is not a necessary party. Plaintiff already has a judgment against him. We cannot anticipate any relief that could be accorded plaintiff in this action against the policy holder, except to let any money recovered in this action show as a credit on the original judgment. Since the original judgment was obtained in this court that detail can be provided for, in case of a recovery by the plaintiff in this action. Motion to dismiss is Overruled.” We do not find the issue ruled in the Homan case referred to [Homan v. Employers Reinsurance Corporation, 345 Mo. 650, 136 S.W.2d 289, 127 A.L.R. 163], but the reasoning in Rutherford is sound. Appellant here suggests that the rights of Mrs. Hughes can be materially affected by the outcome of this suit, but does not suggest how her rights could be affected. The case of Shepherd v. Department of Revenue, Mo.App., 377 S.W.2d 525, 527 [3], discusses and defines the term “necessary party.” The issue here is whether appellant is liable to pay the judgment against Mary I. Hughes, whom we have held above to be an insured covered by appellant’s policy. She was not necessary or indispensable to the proceedings below because the judgment adjudicating appellant’s liability could have been rendered without her presence as a party. Since she is not a necessary or indispensable party, appellant cannot raise the objection for the first time on this appeal. Shepherd v. Department of Revenue, supra, loc. cit. 377 S.W.2d 528 [4,5]. This issue is ruled against appellant.

The judgment is affirmed.

BARRETT and STOCKARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


text:
    Mary Lee DOISY, Appellant, v. Samuel E. EDWARDS, Respondent.
    No. 51377.
    Supreme Court of Missouri, Division No. 2.
    Jan. 10, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 14, 1966.

      John D. Schneider, St. Louis, for appellant. <=
    John J. Cole, Joel D. Monson, Heneghan, Roberts & Cole, St. Louis, for respondent.
   PRITCHARD, Commissioner.

In this automobile collision case, tried October 27-30, 1964, the unanimous verdict of the jury and ensuing judgment of the trial court were against plaintiff on her $35,000 claim of damages for personal injuries, and against defendant on two counts of his counterclaim for damages for his personal injuries and loss of services of his wife. Plaintiff appeals, but defendant does not appeal, from the final judgment.

No issue of the submissibility is involved. One issue is the propriety of the giving of Instruction No. 6, at defendant’s request, which permitted the jury to find against both parties. That instruction reads: “The Court instructs the jury that if you find and believe from the evidence that plaintiff was negligent as submitted to you in Instruction No. 4 and if you find and believe from the evidence that defendant was negligent as submitted to you in Instruction No. 1 and if you further find and believe that such negligence, if any, on the part of both plaintiff and defendant combined and concurred to directly and proximately cause the collision mentioned in evidence then ■ you are instructed that neither party is entitled to recover against the other and your verdict shall be in favor of defendant with respect to plaintiff’s petition and your verdict should be for plaintiff with respect to defendant’s counterclaim.”

The negligence of plaintiff as submitted in the referenced Instruction No. 4 is that she failed and omitted to operate her vehicle upon the right half of the roadway at a time when defendant’s vehicle was approaching in close proximity from the opposite direction, and that defendant was thereby caused to attempt to stop his vehicle which was caused to slide and to pass the center line of the highway and into plaintiff’s vehicle.

Instruction No. 1, as referenced in the above Instruction No. 6, submitted defendant’s negligence in driving his automobile across the center line of the highway onto its northbound half and into collision with plaintiff’s vehicle.

Plaintiff contends that Instruction No. 6 is erroneous in that it directed a verdict based on conflicting and inconsistent theories of the case; that it misdirects and misled the jury and is a misstatement of the law in that it affirmatively submits mutually exclusive propositions that the jury find the defendant negligent “as submitted in Instruction No. 1,” and simultaneously find the plaintiff negligent “as submitted in Instruction No. 4.”

The collision, March 23, 1963, occurred in the northbound lane of Highway 21, and 3.8 miles south of Highway 141 in Jefferson County, Missouri. The highway, being concrete, has two lanes each eleven feet wide and separated by a center line. Gravel shoulders ten feet wide are on each side of the roadway. At the point of collision the road is straight for 1,000 feet between a curve and the top of the hill to the north. The day was clear and the pavement was dry.

Plaintiff’s version of the facts are these: She was driving northward from Ironton, Missouri, to her home in St. Louis, in her husband’s 1957 Mercury automobile. Within a mile or two of the scene of the collision she had been driving about 60 miles per hour on the winding highway. Shortly before the accident she came to a long curve turning to her right, at which time she met and passed a car going to the south. She saw defendant’s car, generally going southbound on the other side (its own) of the road, but did not notice it any more than its being driven in the opposite direction, until defendant pulled across the center line at an angle. Plaintiff’s car was then on her right-hand side of the road, and in the center of her lane. At the time she saw defendant starting to come across the center line about 100 feet (possibly 300 feet) separated the front ends of the vehicles. Defendant’s speed, as fast as her own, was between 50 and 60 miles per hour. Plaintiff pulled over, off the road, and to her right when she first saw defendant’s car coming over the center line. Defendant’s car struck her with its center front end at about the center of her left front wheel, at which time her car was off the right-hand side of the road. Plaintiff had increased her speed to get around defendant’s car. She did not observe any speed change of defendant.

Robert E. Doney, Highway Patrolman, testified that defendant’s car was a 1960 Chevrolet. He found skid marks approximately 33 feet long, beginning in the southbound lane of the Chevrolet (just north of its final crosswise position in the road), and which extended into the northbound lane at approximately a thirty degree angle. These skid marks were straight, beginning to end, without any sudden swerving or turning thereof. He found the vehicles 200 or 300 feet south of the top of the hill.

The admissions against interest of defendant in his deposition were read in evidence that his automobile was in good working condition prior to the collision; its brakes were good and held evenly; and the tires had tread and were good. He admitted further that the two vehicles came together on plaintiff’s side of the road.

Defendant’s version of the facts, testified at the trial by him, is as follows: When he first saw plaintiff’s car it was in the middle of the curve at which time he was approximately 500 or 600 feet from her, and when each car was in its own lane. Both vehicles were then traveling 45 to 50 miles per hour. He testified: “She came out of the curve; instead of straightening up with the road, just gradually went off to the shoulder, and then back on the highway straight ahead in my lane.” When he saw her cross the white line his foot came off the gas, reducing his speed 5 miles per hour. She continued Coming toward him, and he saw her head move from behind the steering wheel and her right hand go out; and he saw the front end of her car raise up — he “figured she hit the gas.” That was when “he went for the brake” to try to hold his car to let her get out of the way. 250 to 300 feet then separated the cars. When he hit the brake, his car went into a straight slide, gradually to the left, and the headlights of the cars came together. Her speed was then 65 miles per hour, his speed 8 miles per hour.

Beulah Edwards, defendant’s wife, was riding with him in the right front seat. She testified that she saw plaintiff’s car beyond the curve on her own side before the accident. Defendant was then going 55 miles per hour. When plaintiff came around the curve, right at its north end, Mrs. Edwards saw plaintiff’s automobile go off the highway and onto defendant’s side of the highway across the center line and all the way to the curb. Defendant was 75 feet away from plaintiff when he applied his brakes.

Plaintiff argues that “Instruction No. 6 curiously directs a verdict against both parties in the event the jury finds in favor of both parties.” (Our emphasis.) We do not so construe the instruction. It directs a verdict against each party on their respective claims if the jury finds each to be negligent on the referenced hypothesized facts in Instructions Nos. 1 and 4 (i. e., if both are negligent neither can recover). We have not found a case, nor have we been cited to any, where such an instruction, involving a counterclaim, has come under appellate court scrutiny. Analogous, however, are some cases involving the contributory negligence of a plaintiff, wherein the negligence of a defendant in that affirmative defense is presupposed. Such a case is Hornstein v. United Rys. Co. of St. Louis et al., 97 Mo.App. 271, 70 S.W. 1105. There, a judgment for plaintiff was reversed because of erroneous refusal to give defendant’s instruction, loc. cit. 70 S.W. 1107: “If you believe from the evidence that the injury to the plaintiff was caused by the joint, mutual, and concurring negligence of plaintiff and defendants’ agents in charge of the car, and that the negligence of neither, without the concurrence of the negligence of the other, would have caused said injury, then the plaintiff is not entitled to recover, and your verdict must be for the defendants.” Tillman v. St. Louis Transit Co., 102 Mo.App. 553, 77 S.W. 320, 321 [3], had a like ruling. See also Rodgers v. St. Louis Transit Co., 117 Mo.App. 678, 92 S.W. 1154, 1156; and Schaabs v. Woodburn Sarven Wheel Co., 56 Mo. 173, 174, where a,, “both parties negligent” instruction (approved by the court) was given against plaintiff’s claim. At page 176 the court said, “No one can recover for an injury of which his own negligence in part or in whole was the immediate and proximate cause”; Brown v. Parker, Mo.App., 375 S.W.2d 594.

The referenced instructions do not present mutually exclusive propositions, nor does the belief in one set of findings dispel the belief in the other as contended. The referenced instructions do not require a finding that the collision occurred in opposite lanes of travel which, if so, would necessitate a finding that it occurred in both lanes, and which would obviously be mutually exclusive. It is conceded that the collision occurred in plaintiff’s lane. The hypothesized facts in both Instructions Nos. 1 and 4 present separate theories of negligence, both of which, if believed by the jury as apparently was the case, would justify a finding that both parties were concurrently negligent, and the same would defeat both claims. Nor are these theories and the evidence of the parties at war with one another. They present two sets of facts, showing concurrent causation, which, if believed, defeat each claim. The “at war” rule is simply where a plaintiff, having one theory presented by positive testimony, cannot recover on a theory supported only by the defendant’s evidence which is directly contrary thereto. Miller v. Riss & Co., Mo., 259 S.W.2d 366, 370 [2, 3]; Elliott v. Wescoat, Mo., 336 S.W.2d 649, 651 [1, 2]. The instruction does not predicate a finding upon inconsistent or irreconcilable facts as was the case in Shaw v. Griffith, Mo.App., 291 S.W.2d 230, 236 [7]. Plaintiff’s Point I, attacking Instruction No. 6 on the aforesaid grounds, is ruled against her.

Plaintiff’s Point II is that the court erred in excluding testimony that defendant had been drinking. Patrolman Doney testified before the court and outside the hearing of the jury that he recalled he smelled liquor on defendant’s breath — it smelled like beer. It was not known whether defendant’s faculties were impaired or not, and the only thing he noted on the report of accident was that defendant had been drinking. There was no evidence that defendant’s drinking had anything to do with the collision. There was no evidence showing erratic driving by defendant or any other circumstance from which it might be inferred that defendant had an impaired physical condition at the time of the collision. Under Cheatham v. Chartrau, 237 Mo.App. 793, 176 S.W.2d 865, 868 [1]; and Boehm v. St. Louis Public Service Company, Mo., 368 S.W.2d 361, 372, such evidence would have been admissible if coupled with other evidence tending to show that defendant was under the influence of intoxicating liquor. That other evidence is lacking and the trial court did not err in excluding the testimony of Patrolman Doney. Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 9C, §§ 6185, 6186, p. 273 et seq. Point II is overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HENLEY, Judge.

text:
    John STEWART, Claimant, Respondent, v. Delbert JOHNSON, Employer, Defendant, Respondent, M. E. Morris, Treasurer of the State of Missouri, Additional Party Defendant, Appellant.
    No. 51413.
    Supreme Court of Missouri, Division No. 1.
    Jan. 10, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Feb. 14, 1966.

      Moore, Pettit & Keeter, Aurora, for respondent John Stewart.
    Arch M. Skelton, Donald E. Bonacker, Skelton & Bonacker, White & Dickey, Springfield, for respondent Employer, Delbert Johnson and Insurer Mid-Continent Casualty Co.
    Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for appellant.
   HENLEY, Judge.

This is an appeal by the Treasurer of the State of Missouri, custodian of the second injury fund and as such a party defendant, from a judgment of the Circuit Court of Lawrence County sustaining a workmen’s compensation award of The Industrial Commission of Missouri.

This court has jurisdiction for the reason that a state officer as such is a party. Article V, § 3, Constitution of Missouri, V.A.M.S.; Section 287.220, subsection 2; Grant v. Neal et al., Mo., 381 S.W.2d 838, 840 [3].

The preliminary facts, such as whether there was an accident and whether the accident arose out of and in the course of employment of the employee by the employer at the time of the accident, etc., necessary to a finding and an award of compensation for a compensable injury, were all agreed to in a hearing before the Referee. No questions are raised as (1) to the injuries or the percentage and extent of disability suffered, or (2) to the timeliness of the claim and application for review. The parties agreed before the Referee, and he and the Industrial Commission found, that the compensation rate is $20.33 per week. Appellant agrees in his brief that a prior disability, and the disability incurred as a result of this accident, resulted in total and permanent disability of the employee; that the total benefits payable to the employee amount to 300 weeks’ compensation at $20.-33 per week and thereafter $18.00 per week for life.

The fundamental question in dispute lies between the employer and the custodian of the second injury fund; the question is, “how shall the payment of benefits due the employee be apportioned between the employer and the second injury fund?” A determination of this question involves a construction of § 287.220 and a resolution as to whether, in the circumstances related herein, the liability of the employer shall be computed by application of § 287.190 (fixing the period for which compensation is to be paid for permanent partial disability) or § 287.200 (fixing the period for which compensation is to be paid for permanent total disability). The question has not been presented to this court before.

The commission, on review of the referee’s finding and award, found that as a result of a compensable accident of December 14, 1959, the employee sustained a permanent injury which, considered alone and of itself, was equal to 50% of the body as a whole; that prior to said accident the employee had a permanent disability (existing at the time of the last injury) equal to 50% disability of the body as a whole. The commission further found that the previous disability and the last injury together resulted in total and permanent disability to the employee. Based on these findings, a majority of the commission, one commissioner dissenting, awarded compensation to the employee (subject to a credit not pertinent to the questions raised on appeal) to be paid as follows: 150 weeks at $20.33 per week by the employer; 150 weeks at $20.33 per week by the second injury fund after completion of payment of compensation by the employer; thereafter $18.00 per week for life by the second injury fund.

This award further provided that the weekly installments bear interest at the rate of 6% per annum from the date of the award until paid. This award of interest is also assigned as error, but we will discuss this assignment after disposition of the basic question in dispute.

In determining how the 300 weeks of compensation should be apportioned between the employer and the second injury fund, the commission interpreted § 287.-220 to require that it determine “the extent of disability resulting from the last accident as distinguished from the liability in dollars and weeks for said accident; * * * that said extent of disability must be considered in connection with Section 287.200, RSMo 1959 (Compensation for permanent total disability) rather than in connection with Section 287.190, RSMo 1959 (Permanent partial disability).” The dissenting commissioner disagreed with the majority’s interpretation of § 287.220. He would compute the employer’s liability by applying § 287.190. By his reasoning and computation the employer would be liable to the employee for 50% (his permanent partial disability attributable to the last injury) of 400 weeks (the maximum number of weeks for permanent partial disability), or 200 weeks’ compensation, plus 20 weeks for the healing period, or a total of 220 weeks. Compensation for permanent total disability being 300 weeks, he would hold that the second injury fund is liable for the difference, or 80 weeks, plus $18.00 per week thereafter for life. The difference between these two theories is 70 weeks.

Appellant contends that the court and commission erred in apportioning the award between the employer and the second injury fund; that the method of apportionment of the award used by the commission and court “ * * * violates the clear meaning of Section 287.220 in that it fails to determine the liability of the employer for the disability resulting from the last injury considered alone and of itself”; that this interpretation of § 287.220 is erroneous, because it is unreasonable and arbitrary. The employer contends to the contrary, but concedes in his brief that if § 287.190 is applicable the employee would be entitled to 20 weeks’ additional compensation for the healing period for which the employer would be liable.

Section 287.220 creates the second injury fund and provides when and what compensation shall be paid from the fund in “all cases of permanent disability where there has been previous disability.” It matters not whether the previous disability is “from compensable injury or otherwise.” Federal Mutual Insurance Company v. Carpenter, Mo., 371 S.W.2d 955, 957 [3].

Subsection 1 of § 287.220 provides when and what compensation shall be paid from the fund for two separate conditions of permanent disability: (1) permanent partial disability, and (2) permanent total disability. Under this section, for either condition, the employer is liable only for that disability attributable to or resulting from the last injury.

It is with the second of these conditions that we are concerned. That portion of § 287.220 pertaining to permanent total disability is: “ * * * If the previous disability * ⅜ *, and the last injury together result in total and permanent disability, the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; except that if the compensation for which the employer at the time of the last injury is liable, is less than the compensation provided in this chapter for permanent total disability then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation that would be due for permanent total disability under section 287.200 out of a special fund known as the second injury fund * *

Section 287.190 provides in subsection 1, for payment of compensation for permanent partial disabilities according to a schedule of losses and in addition, regardless of whether the disability is scheduled or unscheduled, provides compensation for a healing period not to exceed 20 weeks. Subsection 3 provides: “For permanent injuries other than those specified in the schedule of losses, the compensation shall be paid for such periods as are proportionate to the relation which the other injury bears to the injuries above specified [in the schedule of losses], but no such period shall exceed four hundred weeks ⅜ * Section 287.200 provides: “For permanent total disability compensation shall be paid * * * during three hundred weeks, * * * and thereafter * * * for life ⅜ ⅜ * not less than eighteen dollars * ⅜ * per week.”

In construing a statute to give effect to the intent of the legislature, we must look to the object sought to be accomplished and the purpose to be served. We must, if possible, give effect to the whole and every part of the statute, inelud-ing every word, clause and sentence. McCord v. Missouri Crooked River Backwater Levee District of Ray County, Mo., 295 S.W.2d 42, 45 [2, 3]; State ex inf. Kamp ex rel. Rodgers et al. v. Pretended Consolidated School District No. 1 of Montgomery County et al., 359 Mo. 639, 223 S.W.2d 484, 488 [4]; State v. Hallenberg-Wagner Motor Co., 341 Mo. 771, 108 S.W.2d 398, 400 [1]; 82 C.J.S. Statutes § 323, pp. 593-612 and § 346, pp. 705-717. The purpose of the law is to encourage employment of the partially handicapped. Federal Mutual Insurance Company v. Carpenter, supra, 371 S.W.2d 1. c. 957 [4]; Grant v. Neal, supra, 381 S.W.2d 1. c. 841 [7]. Prior to the creation of the second injury fund (Laws of 1943, p. 1068) the employer was obligated under what is now § 287.200 to pay all compensation awarded an employee totally and permanently disabled.

To accomplish the object of encouraging industry to employ the partially handicapped it was necessary that the legislature (1) partially, at least, relieve the employer of his liability to an employee for disability not specifically attributable to injury suffered while in his employment, and, (2) protect the employee by providing a fund from which he would be compensated for that portion, if any, of his disability above that attributable to his last injury. One section (§ 287.220) of the Workmen’s Compensation Law expresses this purpose and adopts in broad outline the above scheme. That section fixes the amount of and the time when compensation shall be paid from the fund. The amount of liability of the fund is fixed by direct and indirect reference to other sections of that law. The extent of liability of the fund being fixed by the legislature as the balance or remainder, if any, of the disability after determination of the extent of liability of the employer, it was necessary that it fix and limit the latter’s liability. For total and permanent disability resulting from a previous disability and the last injury together, it fixed and limited the employer’s liability to that portion of the disability “resulting from the last injury considered alone and of itself.” For such permanent total disability, the legislature further fixed the liability, if any, of the fund and the time when payments were to be made therefrom by providing “that if the compensation for which the employer at the time of the last injury is liable, is less than the compensation provided in this chapter for permanent total disability then in addition to the compensation for which the employer is liable and after the completion of payment of the compensation by the employer, the employee shall be paid the remainder of the compensation * * * [due for such disability] out of * * * the second injury fund * * (Emphasis supplied.) The quoted and italicized words have meaning in the overall scheme of the law and must be given effect to accomplish its object.

In determining the liability of the employer in this case, we should first consider only the disability resulting from the last injury; otherwise the words “considered alone and of itself” are meaningless. Until that disability is determined, it is not known whether the second injury fund has any liability, for- the statute contemplates that the employer’s liability for compensation may be at least equal to that provided for permanent total disability in § 287.200; otherwise, it would be meaningless to provide that the fund pay “the remainder” if compensation due from employer for the last injury “is less than” that to be paid for permanent total disability. Here the disability resulting from the last injury alone was a permanent partial disability.

Looking to the purpose of the law and giving effect to the whole of § 287.220, we must, and do, hold that the intent of the legislature was that the liability of the employer at the time of the last injury be determined by application of § 287.190, where the last injury results in permanent partial disability, and that injury together with a previous disability result in permanent total disability. Hence, we hold: that the employer’s liability in this case is 50% of 400 weeks, or 200 weeks, plus 20 weeks for healing period, for the total of 220 weeks at $20.33 per week; that the second injury fund is liable for the remainder of the 300 weeks due for permanent total disability, or 80 weeks at $20.33 per week, and thereafter for the employee’s life at $18.00 per week.

Appellant’s second and last point is that the court and commission erred in holding that each installment of compensation shall bear interest from the date of the award, November 16, 1964. The accident causing the injury occurred December 14, 1959; almost five years before the final award, and now more than 300 weeks ago. According to appellant’s computation, 34 of the 80 installments to be paid by the second injury fund were due on the date of the award, leaving 46 installments not due but to become due weekly after the award date. Appellant contends that the effect of this part of the award is that these 46 installments and the $18.00 weekly pension payments for life start bearing interest before they become due; that this is contrary to § 287.160. That section provides: “Each installment shall bear interest * * * from the date when due until paid.” The point is not discussed in the brief of either the employer or the employee, so we assume appellant’s computation is accurate.

The award and judgment are erroneous insofar as they impose interest on an installment before the date it is due.

The judgment is reversed and the cause remanded to the circuit court with directions that that court return the cause to The Industrial Commission of Missouri for entry of its award in accordance with this opinion.

All concur.

      . All references to statutes are to RSMo 1959 and V.A.M.S.


author: WELBORN, Commissioner.

text:
    Harold H. ROSEMANN and Adele A. Rosemann, His Wife, Plaintiffs-Appellants, v. Carl W. ADAMS and Mayme E. Adams, His Wife, Defendants-Respondents, and Village of Bel-Ridge, Defendant-Intervenor-Respondent.
    No. 51155.
    Supreme Court of Missouri, Division No. 1.
    Jan. 10, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied Feb. 14, 1966.
    Robert C. Jones, Ziercher, Tzinberg, Human & Michenfelder, Clayton, for appellants.
    Sheldon D. Grand, Clayton, for defendants-respondents.
   WELBORN, Commissioner.

Harold H. Rosemann and his wife Adele brought suit in the St. Louis County Circuit Court to enjoin Carl W. and Mayme E. Adams from using as a driveway and walkway a portion of the Rosemann’s property described as Lot 6 in Block 2 of Ramona Heights. Plaintiffs also alleged that the defendants claimed an interest in a part of plaintiffs’ lot and sought to quiet title in plaintiffs to the entire lot. The Village of Bel-Ridge intervened in the action and filed an answer alleging that the area in question had been used as a public street for more than ten years. By counterclaim, the village sought to enjoin plaintiffs from obstructing the street, and prayed judgment that title to the land was in the village as a public street or that an easement for such purpose be decreed. The individual defendants, by their answer, alleged that the area in question had been used as a public street for more than ten years and that they had established an' easement by their use for more than ten years. They alternatively asked for an easement or for a declaration that the area was part of a public street. The judgment of the trial court was adverse to plaintiffs and they have appealed.

The area in question is a tract some 15' x 25' in size, located in the rear southeast corner of plaintiffs’ 50' x 199' lot. Werder Avenue dead ends at that point and the paved and traveled area of the street has been extended beyond the boundary of plaintiffs’ lot by some 15 feet and for the width of Werder, or some 25 feet. The driveway into the Adamses’ property on Werder Avenue connects with the paved portion of Werder which is within the limits of Lot 6, or plaintiffs’ lot.

After a hearing at which witnesses testified on behalf of the plaintiffs and the Adamses, and in which the village participated through counsel but offered no evidence, the trial court made findings of fact and conclusions of law. The court found that plaintiffs were record owners of Lot 6 in Block 2 of Ramona Heights, but that it was necessary for the Adamses to cross an area 15' x 25' in the southeast corner of Rosemann’s lot “in order to have access to the present garage and driveway maintained by Defendants Adams on their [adjacent] property.” The court further found that for a period in excess of ten years prior to October 10, 1957 [when plaintiffs’ predecessor in title took possession of Lot 6], the area had been used by the Adamses “and the public in general for the purpose of access to the garage located on the property of defendants Adams and for the purpose of turning around in the dead-end street and for the purpose of deliveries.” The court found that such use by the Adamses and the public in general was “open, continuous, visible and uninterrupted for a period in excess of ten (10) years * * * .”

The court made the following conclusions of law:

“7. The elements of establishing an open and public road by prescription, are an adverse, open, continuous, visible and uninterrupted use for a period of ten (10) years. Gilleland v. Rutt, 63 S.W.2d 199 (Mo.App., 1933); and City of Caruthersville v. Cantrell, et al., supra.

“8. When evidence has been presented of a use of land which is continuous, uninterrupted and visible for a period of ten (10) years, a presumption arises that such use is adverse and the burden of showing the use to be permissive shifts to he (sic) who would oppose the establishment of an easement. Dalton v. Johnson, 320 S.W.2d 569 (Mo.1959); Bridle Trail Association v. O’Shanick, 290 S.W.2d 401 (Mo.App., 1956); and City of Caruthersville v. Cantrell et al., 230 S.W.2d 160 (Mo.App., 1950).”

By its judgment, the court found in favor of defendants on plaintiff’s Count One for injunction. On plaintiffs’ Count Two, to quiet title, the court decreed that plaintiffs were the owners of Lot 6 in Block 2 of Ramona Heights, but that the 15' x 25' tract in the southeast corner was “subject to an easement of access and way in favor of defendants Adams and the public in general.” On Count One of defendants Adams’ counterclaim, requesting an injunction against interference with their use of the disputed property, the court enjoined plaintiffs from obstructing or otherwise blocking or interfering with the use by the public in general and defendants Adams of the disputed tract.

On Count Two of defendants Adams’ counterclaim, for establishment of an easement in their favor over the disputed tract, or in the alternative for declaration that the area is a public street, and on Counts One and Three of the Village of Bel-Ridge’s counterclaim [to enjoin interference with use of the area as a public street and to decree an easement across the area for a public street, respectively], the court decreed “that defendants Adams have an easement of access and way over and upon the property” in dispute.

The court further, according to the transcript, entered judgment for plaintiffs “on Count Three of the counter-claim of the Village of Bel Ridge.” We assume that the reference was intended to be to Count Two of the counterclaim of Bel-Ridge. That count sought judgment declaring title in the disputed area to be vested in the village as a public street. No reference to Count Two appears in the judgment, and a judgment denying the city’s claim of title would be consistent with the quiet title judgment, entered in response to plaintiffs’ petition.

On this appeal, plaintiffs contend that the judgment of the trial court was erroneous because “defendants and intervenor failed to show that the area in question was a public street thereby precluding plaintiffs from barring anyone from using said street.” The difficulty with this point is that it does not point out any error on the part of the trial court, because the trial court did not hold that the area in question was a public street. In response to both the Adamses’ and the village’s prayers for a declaration that the area was a public street, the trial court found merely that the Adamses had an easement of way and access. True, in response to plaintiffs’ quiet title prayer, the trial court also found an “easement of access and way in favor of * * * and the public in general” across the disputed tract. No attack is made on such finding and judgment.

Even if the decree be considered, in effect, as establishing an easement for a public street, the appellants’ objection to such a declaration is without merit. Their objection is based primarily upon a claimed lack of proof that public funds had been expended on the area for ten years or more. According to appellants, § 228.190, RSMo 1959, V.A.M.S., would prevent the establishment of an easement for a public street in the absence of such proof. The difficulty with appellants’ position is that § 228.190 applies to public roads, not to streets and alleys. The section has, throughout its history, been a part of the state’s road laws. See State v. Kitchen, 205 Mo.App. 31, 216 S.W. 981, 982. “There can be no doubt the Legislature has provided laws for streets and alleys separate and distinct from the general road laws.” Evans v. Andres, 226 Mo.App. 63, 42 S.W.2d 32, 35[9]. Although we find no case which has expressly held § 228.190 inapplicable insofar as establishment of easements for municipal streets by prescription is concerned, the cases of Terry v. City of Independence, Mo.Sup., 388 S.W.2d 769, and City of Caruthersville v. Cantrell, Mo.App., 230 S.W.2d 160, both held that easements for such purpose may be created in accordance with the criteria of cases involving the establishment of interests in real estate under the 10-year statute of limitations. § 516.010, RSMo 1959, V.A.M. S. Neither referred to § 228.190. See also Winschel v. County of St. Louis, Mo.Sup., 352 S.W.2d 652.

Insofar as the sufficiency of the evidence is concerned, it was shown that the area in question had been covered with an asphalt surface since “the early 40’s.” After the Village of Bel-Ridge was incorporated in 1948, the village street department sealed the surface in 1954 and blacktopped the area in 1962. The evidence showed that throughout the entire period the area had been generally used and considered as part of Werder Avenue. There was no evidence of interruption of the use during that time. There was some testimony that Mrs. Miller, a predecessor in title of plaintiffs, placed some sort of obstructions in the area in 1957, but they did not prevent its use. Mrs. Miller did not testify and the basis of her action does not appear. The evidence clearly showed the character of dominion and use sufficient to establish an easement by prescription. Terry v. City of Independence, Mo.Sup., 388 S.W.2d 769. There was no evidence that the initial use was permissive, a fact which plaintiffs would have been required to establish in view of the evidence of the open and continuous use beyond the period of prescription. Dalton v. Johnson, Mo.Sup., 320 S.W.2d 569, 573 [3-6]; Bridle Trail Association v. O’Shanick, Mo.App., 290 S.W.2d 401, 405-406 [7, 8].

We agree with appellants that the trial court’s judgment of an easement in favor of the individual defendants was not authorized. Mr. Adams testified that he “figured” that the area in question “was a street belonging to the Village.” His use of the area under such an assumption was, therefore, neither exclusive nor under individual claim of right. No claim of individual right of easement by prescription may arise by virtue of such use by the defendants. 17A Am.Jur., Easements, § 82, p. 698.

The trial court found that it was “necessary” for the defendants to cross the area in order to have access to the .present garage and driveway maintained by defendants Adams on their property. However, there is no basis for declaration of a right of way by necessity. The record does not disclose a common source of title of plaintiffs and defendants. Pendleton v. Gundaker, Mo.Sup., 381 S.W.2d 849, 850 [1-3]; 17A Am.Jur., Easements, § 72, p. 884.

This being an equity case, we, on this appeal, review the matter de novo, and are authorized to direct the entry of such judgment as should have been rendered. Brugioni v. Maryland Casualty Co., Mo.Sup., 382 S.W.2d 707, 713[9]. As we mentioned above, appellants have not attacked the judgment on the grounds that it orders an easement in favor of the publie generally. However, “the general public, considered apart from legally organized or political entities, is incapable of receiving a grant and hence cannot acquire a prescriptive easement.” 17A Am.Jur., Easements, § 68, p. 680; 28 C.J.S. Easements § 8, p. 643. Inasmuch as plaintiffs here have briefed the matter on the basis that the trial court’s decree established an easement for a public street, and inasmuch as we have concluded that the evidence was, under the law, sufficient to establish an easement by prescription for a public street of the Village of Bel-Ridge, the judgment should be amended so to declare.

The judgment heretofore entered is set aside, and the cause remanded with directions to enter a new judgment, as follows:

a. On Count One of plaintiffs’ petition, in favor of defendants.

b. On Count Two of plaintiffs’ petition, declaring that plaintiffs are the owners of the property described in Paragraph 1 of the trial court’s Findings of Fact, but that a part of said property, as described in Paragraph 2 of said Findings of Fact, is subject to an easement for a public street in favor of the Village of Bel-Ridge.

c. On Counts One and Two of defendants Adams’ counterclaim, in favor of plaintiffs.

d. On Count Three of the Village of Bel-Ridge’s counterclaim, declaring that the Village of Bel-Ridge has an easement for a public street across the land described in Paragraph 2 of said Findings of Fact.

e. On Count One of the Village of Bel-Ridge’s counterclaim, enjoining plaintiffs from interfering with the use as a public street of the property described in Paragraph 2 of said Findings of Fact.

f. On Count Two of the Village of Bel-Ridge’s counterclaim, m favor of plaintiffs.

g. Assessing costs against plaintiffs.

HOUSER and HIGGINS, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    SPRADLIN’S MARKET, INC., Appellant, v. SPRINGFIELD NEWSPAPERS, INC., Respondent.
    No. 51197.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.

      Joseph Cohen, Charles S. Schnider, John E. Shamberg, Joseph P. Jenkins, Edward G. Collister, Jr., Kansas City, Kan., Sam Gardner, Monett, for appellant.
    Richard Farrington, Jack S. Curtis, Far-rington & Curtis, Springfield, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from a judgment in favor of defendant in its action for libel in which actual and punitive damages totaling $250,000 were sought.

Defendant published in its newspapers two articles, the first of which appeared in the “Springfield Leader & Press” on October 1, 1956, and was as follows:

“Spradlin, Four Others Face $775 in Penalties Orders Permanent Injunction Against Former Fruit Dealer
“Federal Judge R. Jasper Smith this morning issued a permanent injunction against Richard B. Spradlin, former Commercial Street fruit dealer, and four other members of his family, from dealing in perishable commodities without a license.
“He also imposed civil penalties of $775 on Spradlin and the others for the 64 alleged violations.
“As the story was told the court by assistant U. S. Attorney Horace Kim-brell, the Agriculture Department had made a ‘reparations award’ to certain persons with whom Spradlin did interstate business, under authority of the perishable commodities act.
“Spradlin, according to Kimbrell, refused to pay the award, after which the Agriculture Department revoked his license to engage in the business of selling perishable commodities.
⅜ ⅜ >!« ⅜ ⅜ ⅜
“But, said the government attorney, Spradlin continued to operate without a license, using various firm names with the name of Spradlin. Federal Judge Albert A. Ridge accordingly issued a temporary injunction.
“Wayne Walker, defense attorney, told the judge he would not try to condone certain violations, but said no trickery was intended in the use of various names. These variations, he said, originated with customers.
“Walker also said Spradlin’s sons, Robert Dale and Loren Wayne, along with a son-in-law, Louis Myres, started a food business of their own while the father was involved. Eventually, he said, they took on perishable products from the senior Spradlin.
“The three younger men, along with Mrs. Mary Spradlin, wife of Richard Spradlin, were named by the government in the injunction proceedings. The penalties imposed by Judge Smith may be paid by any of the five.
“Kimbrell asked Judge Smith to assess the maximum penalty of $500 for the first violation and $25 each for 63 others.
“Walker, however, offered to show that Spradlin had already begun to pay some of the original ‘reparation award’ and asked Judge Smith not to make the penalty so stiff, Spradlin could not engage in business. He noted that the original Spradlin business location had been obliterated by the Commercial Street urban highway proj ect.
“Judge Smith decided on a $100 penalty for the first violation, $10 each for the next sixty and a maximum penalty of $25 each for three allegedly committed after the complaint had been filed.”

The second article appeared in the “Springfield Daily News” on October 2, 1956, and was as follows:

“Restraining Order Against Spradlin Made Permanent
“A temporary order restraining Richard B. Spradlin, former Commercial Street fruit dealer, from doing business in perishable commodities was made permanent yesterday by Federal Judge R. Jasper Smith.
“Judge Smith also imposed penalties of $775 against Spradlin for 64 alleged violations of Agriculture Department regulations.
“Equally affected by the order are four of Spradlin’s relatives including his wife, Mrs. Mary Spradlin, two sons, Robert Dale Spradlin and Loren Wayne Spradlin, and a son-in-law, Louis Myers.
“The case had started with a ‘reparation award’ assessed against Sprad-lin by the Agriculture Department under the perishable commodities act. Spradlin allegedly refused to pay the award and the government revoked his license. When he continued to deal in such commodities, the government asked an injunction and got a temporary one from Judge Albert A. Ridge.”

After the pleadings were at issue the defendant moved for summary judgment, and submitted as an exhibit, supported by an affidavit as to accuracy, a transcript of the proceedings in the federal court on October 1, 1956. Also submitted were copies of the newspaper articles, and an affidavit of the clerk of the federal court to the effect that a document entitled “Findings of Fact, Conclusions of Law, Judgment, and Order Making Preliminary Injunction Permanent” entered in the proceeding in the federal court, although dated as of October 1, 1956, was not in fact filed until October 3, 1956, which was subsequent to the publication of the newspaper articles. No counter affidavits were filed. Therefore, for purposes of this appeal we accept as correct the statements in the affidavits.

Because of the length we shall not set out a verbatim statement of what occurred in the federal proceedings as reflected by the transcript. It appears that what was called a “reparation order” was entered against Richard B. Spradlin by the United States Department of Agriculture. He refused or at least failed to pay the amount of the “reparation order,” and his license issued pursuant to the Perishable Agriculture Commodities Act of 1930 was cancelled. Thereafter, the United States sought and obtained a temporary injunction against him, his wife, two sons and his son-in-law. The United States also brought a civil suit, as authorized by the Perishable Agriculture Commodities Act, to recover certain penalties for operating without a license, and it also sought to have the injunction made permanent. The proceeding on October 1, 1956, about which the two newspaper articles were written, pertained to the hearing on the civil action for penalties and the application to make the injunction permanent.

Counsel for the government recited generally to the court the above information, and stated that the proposed order “makes permanent the injunction previously granted * * * restrain all these people from operating in any fashion until such time as any one of them obtains a license from the Department of Agriculture,” and that “at any time any one of them would obtain a license, then of course the injunction ceases to function.” Counsel also explained that illegal sales had been made under various names including “R. B. Spradlin,” “Spradlin Fruit,” “Spradlin Fruit Company,” “Sprad-lin Market,” “Spradlin Market, Incorporated,” and others. In his recommendations he proposed a penalty of $500 for the first violation, and pointed out to the court that the maximum penalty for the others, of which there were sixty-three, was $25 each. Subsequently the court imposed a penalty of $100 for the first offense, $10 for each additional offense except three which occurred after the complaint had been filed, and for those three the maximum of $25 each was imposed.

Counsel for Richard B. Spradlin stated to the court that there was no ulterior motive in the use of the various names, and stated that “prior to 1954 Mr. R. B. Spradlin was engaged in the transportation of these commodities and had a license.” Counsel then related that after their military service the two sons and the son-in-law of Richard B. Spradlin left his business and went into business for themselves “just selling groceries, and they did not come under this Act at all,” but Richard B. Spradlin “realized” their grocery store would be “a good outlet for these perishable commodities” so “the corporation applied for a license under the act,” but in the meantime “this complaint had been filed against Mr. Richard B. Spradlin, and since the owners of the corporation were his wife, sons and son-in-law, ⅜ ⅜ ⅜ the Department did not feel they could grant them a license. So they were never granted a license.” Counsel continued as follows: “In the meantime the young men, the two sons and the son-in-law, have been unable to live since they couldn’t operate and have gone into other jobs, other business. Also, the Commercial Street widening project got under way during this time. So they were compelled to close their grocery store because it was taken in a condemnation suit. So they finally opened a little outdoor market. But since that time they haven’t been able to engage in and buy these perishable commodities of other states. All they have been able to purchase was Southeast Missouri watermelons and Southeast Missouri peaches, which come on in the state and which don’t come under the Act. This is about the only thing they have been able to sell in the way of perishable commodities except groceries. So the result of that, they justly, rightly and actually have no license. As I say, the boys have been compelled to quit the business and have got jobs elsewhere, and Mr. Spradlin is just running this place over on Commercial Street, being unable actually to make any profit but seeking to keep his name alive and trade alive, so when he can get himself situated so he can, he wants to go back into business.” Counsel then added that if the court “imposes a fine which is impossible for the people ever to pay, then of course we can’t ever get back into the business. None of these folks can.” Later, counsel remarked that “They have no assets. Mr. Spradlin has a couple of trailer trucks which are mortgaged, and which he formerly used in this business. They rented the property which they formerly occupied.”

The transcript shows that counsel for both sides had agreed to the substance of an order, subj ect to the court’s approval, which required a change after the court announced the penalty. The final order enjoined Richard B. Spradlin, his wife, his sons and his son-in-law “from carrying on a business as a commission merchant, dealer, or broker, dealing in perishable agricultural commodities in interstate or foreign commerce ⅜ ⅜ without a valid and effective license under said Act.” This order was dated October 1, 1956, but the affidavit of the clerk of the court, not controverted and therefore accepted by us as correct, established that it was not filed until October 3, 1956, which was after the publication of the two newspaper articles.

In ruling on defendant’s motion for summary judgment the trial court held that the two newspaper articles “show on their face that they constitute a report of a matter of public interest and show on their face that they are a report of judicial proceedings of the United States District Court for the Western District of Missouri and, as such, are privileged articles provided that the articles as written and published constitute a fair, impartial and reasonably accurate report of what actually occurred in the judicial proceedings held in said court on October 1, 1956, * * The court further found that “when compared with the newspaper articles * * * the transcript shows, as a matter of law, that the articles, as written and published, constitute a fair, impartial and reasonably accurate report of what actually occurred in said judicial proceeding being held in said court on October 1, 1956, and that as a matter of law, defendant has no liability to the plaintiff for the publication of said articles * ⅜

Preliminary to considering plaintiff’s points on this appeal we note two matters. Plaintiff is Spradlin’s Market, Inc., a corporation. The proceedings in the federal court were against Richard B. Spradlin and four others as individuals. Spradlin’s Market, Inc., as such, was not a party to the federal proceedings, and the newspaper articles did not mention it. It is alleged in the petition, however, that Richard B. Spradlin was the principal stockholder, that he managed and conducted the business, and because of his connection the business had come to bear the name “Spradlins” or “Spradlin’s Market,” and the name “Richard B. Spradlin” had become a part of, and synonymous with the business itself, so far as the public was concerned. We are not concerned on this appeal with the sufficiency of this colloquium. In addition, libel is defined by statute in this state which, in its material parts, is as follows: “A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, * * Section 559.410 RSMo 1959, V.A.M.S. In Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, this court held that a writing “must itself amount to a 'defamation’, and that if (and only if) it is, then if it exposes one to hatred or contempt, etc., it is libelous.” As this case is presented on this appeal we are not called upon to determine whether the newspaper articles constitute a “defamation” as that term is defined for the purpose of the libel statute. See Coots v. Payton, supra. Assuming they do, we do not see how they could provoke a corporation to wrath. Also, we do not regard the articles as such that would expose plaintiff to public hatred, contempt or ridicule. The articles could not deprive a corporation of social intercourse. That leaves only the possibility that it could be found that they deprived the plaintiff of public confidence. For the reason that we need not determine whether they constituted a “defamation” we need not rule, if they could constitute a “defamation,” whether they could be found by a jury to deprive plaintiff of public confidence.

We turn now to the points in plaintiff’s brief. The first is that the trial court erred in ruling as a matter of law that the two newspaper articles “were qualifiedly privileged in their entirety.” The second is that the trial court erred in concluding as a matter of law that the newspaper articles “constituted a fair, impartial and reasonably correct report of judicial proceedings.” Plaintiff does not set out in either point what parts of the articles it contends are not qualifiedly privileged, and what parts it contends were not fair, impartial and reasonably correct. For this court to search the articles for portions thereof to support plaintiff’s claim results in this court becoming, in effect, an advocate for plaintiff, an activity inconsistent with its function. The purpose of Civil Rule 83.05(e), V.A. M.R., in requiring that the points relied on “briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed” is most pointedly demonstrated in this case. Defendant apparently believed it to be necessary in its brief to laboriously compare each and every portion of the articles with the transcript of the judicial proceedings, a task unnecessary if plaintiff had complied with the rule. However, as stated in Schlanger v. Simon, Mo., 339 S.W.2d 825, 829, “sometimes an appellate court, in a spirit of helpfulness, will look to the argument in a brief for aid in determining the precise contention of error sought to be made in a point.” When we look to the argument, it appears that plaintiff’s contention is that the articles were libelous as to it because they referred to Richard B. Spradlin as a “former fruit dealer.”

“Every impartial and accurate report of any proceeding in a public law court is privileged.” Newell, Slander and Libel, § 450. However, such proceedings may be of too great length and require too much space to publish a verbatim report, so “the law permits the publication of an abridged report, provided it is fair and reasonably correct.” Jones v. Pulitzer Pub. Co., 240 Mo. 200, 144 S.W. 441, 444; Warren v. Pulitzer Pub. Co., 336 Mo. 184, 78 S.W.2d 404, 413; Boogher v. Knapp, 97 Mo. 122, 11 S.W. 45. When the publisher “undertakes to state additional facts, not brought out in the hearing but gleaned from his own investigation, he does so at his peril, if they are false, exactly the same as he would in connection with an unprivileged matter,” Warren v. Pulitzer Pub. Co., supra, but when the publisher does not have actual knowledge of the incorrectness of a statement in a judicial proceeding, there is no duty on him to go outside the judicial proceeding and determine its correctness. Grossman v. Globe-Democrat Pub. Co., 347 Mo. 869, 149 S.W.2d 362, 365. Therefore, whether in fact Richard B. Spradlin was still engaged in some form of fruit business so he could not properly be termed to be a “former fruit dealer” is not the issue in this case.

In support of its first point, that the court erred in ruling that the articles were privileged in their entirety, plaintiff argues that in the transcript of the judicial proceedings “there is not one reference to appellant as a ‘former fruit dealer,’ ” and it “must be concluded, therefore, that these comments pertaining to appellant as a ‘former fruit dealer’ are not reports of judicial proceedings but conclusions or comments of the reporter with respect to such judicial proceedings.” We assume that by use of the term “appellant” plaintiff intends to assert that there was no reference in the judicial proceedings to Richard B. Spradlin as a “former fruit dealer.”

Counsel for the government stated that the permanent injunction would “restrain all these people from operating in any fashion” until a license was obtained. In addition, counsel for Mr. Spradlin, and this is the same as though Mr. Spradlin himself had made the statements, related to the court that “prior to 1954 Mr. R. B. Spradlin was engaged in the transportation of these commodities and had a license;” that the two sons and the son-in-law went into business for themselves “just selling groceries” but Richard B. Spradlin began using their grocery store as an “outlet for these perishable commodities” so the corporation applied for a license and it was refused; the sons and son-in-law could not make a living so they obtained jobs other places and the grocery store was closed because the site was taken in a street widening project; and Richard B. Spradlin is “just running that place on Commercial Street” so that “when he can get himself situated so he can, he wants to go back in business.” The articles do not imply that the members of the Spradlin family, other than Richard B. Spradlin, were former fruit dealers. Counsel also asked the court not to make the fine so high that Richard B. Spradlin “can never get back into the business,” and reference was made to equipment which “he formerly used in this business,” and to the business property which he “formerly occupied.” There can be no question but that the statements in the newspaper articles that referred to Richard B. Spradlin as a “former fruit dealer” were properly ruled to be conditionally privileged if in the use of these statements the entire articles presented a fair and reasonably correct report of the judicial proceedings. See generally, Merriam v. Star-Chronicle Pub. Co., 335 Mo. 937, 74 S.W.2d 592. Therefore, plaintiff’s first point is without merit. The only question presenting any problem is whether the trial court could properly determine in a summary judgment proceeding that the articles were a fair, impartial and reasonably correct report, or whether that question had to be submitted to a jury, assuming for the purpose of this appeal that the articles could constitute a libel under our statute.

Art. I, Sec. 8, Constitution of Missouri, V.A.M.S., provides that “ * * * in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.” It was expressly held in Jacobs v. Transcontinental & Western Air, Inc., 358 Mo. 674, 216 S.W.2d 523, 6 A.L.R.2d 1002, that “this provision does not in any way affect the power of the court to decide as a matter of law that the statement claimed to be libelous is not capable of a defamatory meaning,” and that the provision did not deprive a judge of the authority to direct a verdict. See also Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W.2d 1143, 33 L.R.A.,N.S., 216; Boogher v. Knapp, supra; Tilles v. Pulitzer Pub. Co., 241 Mo. 609, 145 S.W. 1143. Summary judgment is authorized by Civil Rule 74.04(c), V.A.M.R., where the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” It is further provided in Civil Rule 74.04(h) that “In no case shall a summary judgment he rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.”

In this case the trial court had before it the pleadings, the articles published by the defendant, the transcript of the judicial proceedings, and several uncontro-verted affidavits. There was no issue of fact as to what was published, and there was no issue of fact as to what was said and done in the judicial proceedings. The words published were unequivocal and were not subject to different meanings. Assuming that the articles were a defamation, there was one issue, and that was whether the words published were conditionally privileged in that they constituted a fair, impartial and reasonably accurate report of the judicial proceedings. In determining this issue the published articles “should be regarded from the standpoint of persons whose function it is to give the public a fair report of what has taken place in a court of justice. Such a report is not to be judged by the same standard of accuracy which would be adopted if it were a report of a professional law reporter or a trained lawyer.” Newell, Slander and Libel, § 457.

On this appeal, the question of the sufficiency of the evidence, that is, the evidence submitted to the trial court in support of and in opposition to the motion for summary judgment, is a question of law. If the evidence does not as a matter of law meet the minimum requirements to authorize the entry of summary judgment for defendant, the judgment must be reversed and the cause remanded for submission of the issue to a jury. However, “if under the evidence adduced the court would be compelled to direct a verdict for any of the parties, then said party is entitled to a summary judgment.” Brown v. Prudential Insurance Company of America, Mo.App., 375 S.W.2d 623, 629. Although the question of the fairness and accuracy of a report of a judicial proceeding is generally for the jury, Age-Herald Pub. Co. v. Waterman, 202 Ala. 665, 81 So. 621, in this case there is no issue of credibility of witnesses, and there is no disputed issue of fact. When we compare the newspaper articles with the transcript of the judicial proceeding, and view the articles from the standpoint of persons whose function it is to give the public a fair report of what has taken place in a judicial proceeding, we necessarily rule that only one reasonable conclusion can be reached, and that is that the articles were fair, impartial and reasonably correct and that the trial court properly entered summary judgment for defendant.

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.