author: COIL, Commissioner. EAGER, Judge

text:
    Rita NOVAK, Appellant, v. KANSAS CITY TRANSIT, INC., a Corporation, Respondent.
    No. 49233.
    Supreme Court of Missouri, En Banc.
    March 11, 1963.

      S. David Trusty, William J. Marsh, Francis L. Roach, Kansas City, for appellant. Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
    Harold T. VanDyke, Kansas City, for respondent. Linde, Thomson, Vandyke, Fairchild & Langworthy, Kansas City, of counsel.
   COIL, Commissioner.

Rita Novak’s petition averred that her husband, while a passenger in an automobile, was negligently injured by respondent and as a result she had been deprived of his consortium, including his companionship and conjugal affection, for which she sought $100,000 as damages.

Respondent’s motion for summary judgment was sustained on the ground that a wife may not recover for loss of consortium caused by the negligence of a third party, and Mrs. Novak has appealed.

Under the early common law, although a husband was permitted to recover for an impairment or loss of the consortium (including services and society) of his wife, the wife could not recover for the loss of her husband’s society, either because she had no such right or because she was denied any remedy for an invasion thereof. See 4 St. Louis U.L.J. 424, 425, 426.

The passage of the Married Women’s Act in Missouri (present §§ 451.250-451.300 RSMo 1959 and V.A.M.S.), which changed the status of married women, made it inevitable that the courts would need to decide whether the husband’s right of action to recover for loss of consortium had been eliminated by the Act or whether the historical basis for the husband’s rights should be ignored and the view adopted that rights which he had always had were now equal rights as between husband and wife and thus should be enjoyed also by the wife.

And so it was that the courts of this-state held that the husband’s right of action remained even after the Married' Women’s Act and that he could recover for the loss of his wife’s society by reason of injury to her as a result of the third party’s negligence, separate and apart from any loss of her services. Furnish v. Missouri Pac. Ry. Co. (1891), 102 Mo. 669, 15 S.W. 315.

And so it was also that this court in Clow v. Chapman (1894), 125 Mo. 101, 28 S.W. 328, 26 L.R.A. 412, was called upon to determine “whether a wife has a corresponding action against third persons for the alienation of the affections of her husband, and depriving her of his society.” 28 S.W. 329. The court in the Clow case contrasted the status of a married woman with respect to her personal rights under the common law and under the Married Women’s Act as it then existed. It was noted that at common law the legal existence of a wife was suspended or consolidated into that of her husband during marriage and that certain disabilities to the wife followed from that principle of unity. It was pointed out also that Missouri statutes then in existence provided among other things that all rights of action which had grown out of any violation of a wife’s personal rights should be her separate property and under her sole control and that she might in her own name institute and maintain an action for the recovery of such property with the same force and effect as though she were a femme sole.

Significantly, the court in the Clow case specifically assumed that at common law a wife could not maintain an action against third persons for depriving her of her husband’s society because her legal existence had been merged into that of her husband by the marriage. Based upon that premise the court decided the exact issue before it in this broad and comprehensive language: “The case then turns upon the effect to be given to these [Married Women’s] statutes. They are disabling to a large extent, so far as they apply in terms to the husband, and they are enabling in so far as they apply to the wife. They give her an entirely different standing from that occupied by her at common law. Her position is now more like that of a wife under the civil law. Instead of her legal existence being suspended, as incorporated and consolidated into that of her husband, she is made to stand out in bold relief, with a separate and distinct legal existence as to her property, and also as to her personal rights; and she may enforce all such rights by proceedings in her own name, independently of her husband. She is placed upon an equality with her husband in many, and indeed most, respects. By force of the marriage contract, husband and wife are each entitled to the society and comfort of the other, — the one to as great an extent as the other, iAs a wife is now placed on an equality with her husband in respect of her property and personal rights, and as a husband may have his action, as against a third person, for enticing away his wife, the wife has her action against third persons for enticing away her husband. * * *

“But it is insisted on behalf of the defendant that the statutes of this state, before set out, do not confer upon the wife any new rights; that the personal rights mentioned in these statutes are the personal rights which she had at common law; that disabilities are removed, but no new rights are created, and, as she had no right of action at common law to remedy a wrong like the one in question, she has none under the statute law. There is, at first blush, some force in the argument, but upon consideration we consider it no more than adhering to a barren technicality. The statutes, when considered in their full scope and purpose, give the wife a separate legal existence, whereas before her legal existence was considered merged into that of her husband, and for this reason and no other she could not maintain the action. New rights and new obligations necessarily arise from the changed condition, as incidents thereto. When she is given the sole control of her personal property, and the right to recover the same by her own suit, it must follow, as an incident, that she has the right to make contracts in respect of such property, though the statute may not, in terms, give her the right to make contracts in relation thereto. Full dominion over her property carries with it the power to dispose of such property, as a necessary incident. So new personal rights and obligations flow to her because of the fact that she is given a separate and distinct legal existence. * ⅜ * The statutes of this state concerning married women are for the most part remedial, and should be construed and administered so as to give effect to their general object and purpose. We see nothing in the argument pressed upon our consideration to modify the result before expressed.” (Italics and bracketed insert, present writer’s.) Clow v. Chapman, supra, 28 S.W. 330.

We emphasize that the court in Clow held specifically that it was by reason of the marriage contract that the husband and wife were each entitled to the other’s society, and that their rights were equal, i. e., each was entitled to the other’s society to the same extent as the other, and that because the husband had a right of action against a third person for enticing away his wife, the wife likewise had an action against third persons for enticing away her husband, specifically including the element of the wife’s loss of her husband’s society. (28 S.W. 329.) Further, the court rejected the argument that inasmuch as historically the wife had no right or remedy at common law for interference with the marital relation and that, inasmuch as the Married Women’s Act did not create or confer upon the wife any new rights but only removed former disabilities, the wife did not accede to a right of action by reason of the Act. Thus, the court in the Clow case said, in effect, that whatever force there is to the “historical basis argument,” we shall ignore, for to give it effect would be to adhere “to a barren technicality” (28 S.W. 330) ; that new personal rights flowed to the wife because she had been given a separate and distinct legal existence and that the right to sue for the enticing away of her husband was hers because of the comprehensive scope and purpose of the Married Women’s Act.

Later, in Nichols v. Nichols, 147 Mo. 387, 48 S.W. 947, an alienation of affections case, the court affirmed its holding in Clow and left no doubt as to the meaning thereof by this language at page 951: “By law the wife is entitled to the aid, support, protection, comfort, and society of her husband, and for the wrongful deprivation thereof by any person, by whatever means and however her husband’s affection may be thereby affected, she has a right of action against such person for so depriving her of these material benefits of the marital relation; * * (Italics present writer’s.)

In December 1918 the court en banc had before it in Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 13 A.L.R. 1320, the question whether a wife could recover for the loss of the consortium of her husband (we use consortium as including “society,” which, in turn, includes affection, companionship, and conjugal rights) as a result of an injury to the husband by reason of the negligence of a third party. The court held that a wife could not maintain such an action and affirmed the judgment of the trial court in sustaining .defendant’s demurrer to the petition. We are of the view that the majority opinion in the Bernhardt case is clearly erroneous and manifestly wrong and should no longer be followed.

It was, as disclosed by the majority opinion (two judges dissented), the contention of the plaintiff-appellant in that case that since it had been held in Clow v. Chapman, supra, that the Married Women’s Act permitted the wife to recover for the alienation of her husband’s affections, it followed that she had a right to maintain an action for the “injury sued for in this case,” which included the alleged loss of her husband’s care, protection, consideration, aid, and society.

A careful review of the majority opinion in. the Bernhardt case discloses that the court assigned two reasons for the result reached: first, that the holding in Clow v. Chapman, supra, that a wife could sue for and recover from a third person for alienation of her husband’s affections did not require, as contended by plaintiff, a holding that a wife could recover for loss of her husband’s society as a result of a physical injury done her husband due to a third party’s negligence; and second, the possibility that if the wife was allowed to maintain such an action she might receive double compensation for the same damages from the same person.

In support of its first reason, the court suggested that there is a “fundamental difference between the rights of a wife growing out of a personal injury to her husband and those growing out of the alienation of his affections. * * * In the former case the injury is physical, or grows out of a physical injury done to the husband” and he can recover damages which are supposed to make him whole and which enable him to support his wife and children, “and to discharge all of his marital and parental duties due them in the same degree that the law imposed those duties upon him previous to the injury, leaving no right of theirs, if any, violated, which has not been fully compensated. Such was the common law; * * *.” 208 S.W. 465. As we understand, the court sought to distinguish the actions on two grounds: first, that the wrong in the alienation case was committed against the wife and not against the husband as in the case of personal injuries sustained by the husband; and, secondly, that alienation of the husband’s affections deprived the wife of all her rights of protection, support and society, while, apparently, the negligent injury of her husband might deprive her of only her husband’s society.

Now, while the suggested differences between the actions do or could exist, the court does not point out wherein either difference was relevant to or decisive of the question before it. It seems to us that neither suggested difference was or is decisive. It was decided in the Clow case that the injury to the wife by reason of the loss of the society of her husband was a separate and distinct legal wrong; and Clow made it abundantly clear that the right of action the wife had was not because the suit there happened to be for the alienation of her husband’s affections or because of the fact that when her husband’s affections were alienated, she might sustain a loss in addition to the loss of his society, e. g., the loss of support. The Clow and Nichols cases decided that by virtue of a married woman’s changed status and position, her right to the society of her husband was equal to his right to her society, and thus that the wife could recover therefor in those fact situations in which the husband could recover for a similar loss. The majority opinion in the Bernhardt case failed to take into account that the fundamental reason the wife could not recover at common law in an alienation of affections suit or for the loss of her husband’s society due to a third party’s negligence was on account of her inferior statw. Once it is conceded, as the Clow case held, that since the Married Women’s Act and by reason of the marriage contract the wife has a separate legally protectible right to her husband’s society (including his affection, and companionship, and her conjugal rights), then, whether the invasion of that right is by the intentional act of a third party concurred in by the husband, as in the alienation of affections case, or by the negligent act of a third party as in this case, can make no difference. That is because in both cases the wife has sustained separate injury and damage. Indeed, this court recognizes the validity of that proposition by permitting a husband to recover for the loss of his wife’s society (whether or not accompanied by a loss of services) as a result of an injury to her due to a third party’s negligence. Furnish v. Missouri Pac. Ry. Co., supra.

We are convinced that if the loss of consortium, which includes a spouse’s society, which, in turn, encompasses the right to the other’s affection and companionship and the conjugal rights of each, is a separate, equal, personal right of each, the husband and wife, as this court has recognized and has held, then there can be no logical or reasonable basis for denying the wife a right to recover where the invasion has been the, negligence of another, while granting the corresponding right to the husband, and while permitting the wife to recover in an alienation of affections action even though her only provable damage might be the loss of her husband’s society.

The dissenting opinion in Bernhardt v. Perry, supra, 208 S.W. 467, is a convincing answer to defendant’s contention in this case, even though it may be that the wife, contrary to the suggestion in the dissent, did not have a right to consortium at common law. See 22 Michigan L.R., p. 1; contra: Eliason v. Draper, 2 Boyce, (Del.) 1, 77 A. 572, 575; Sims v. Sims, 79 N.J.L. 577, 76 A. 1063, 1064, 29 L.R.A.,N.S., 842. But even if so, such does not detract from the force of the dissenting opinion because it is “probably idle to speculate upon anything so metaphysical as a legal right with no effective remedy, when obviously the real difficulty was the inferior position of married women, and the feeling that they had no standing to complain, since they were not entitled to any ‘services’ of the husband.” Prosser on Torts, 2nd Ed., Ch. 22, p. 691.

Equally fallacious is the second reason stated in the Bernhardt opinion, viz., that to permit the wife to maintain an action such as the present could result in her recovery of double damages. That conclusion fails to take into account the fact that the loss for which the wife is entitled to damages is a separate and distinct personal loss suffered by her, which, under the Married Women’s Act, is exclusively hers, and which properly is not includable within the damages the husband should recover for his personal injury. It is true, of course, that when full pecuniary compensation is paid to a husband by reason of injuries he has sustained, a wife shares to some extent in the benefits of that recovery and certainly she should not be permitted to recover any of the same damages the husband has recovered in his action. Such result may be avoided by delineating accurately the items properly includable in the husband’s damages and by permitting the wife in her separate action to recover for the loss of only those elements of consortium which, under the facts of a particular case, represent separate and distinct losses to her. As stated in Prosser on Torts, 2d Ed., Ch. 22, p. 704: “There remains of course the important fact that the husband is under the duty to support his wife, so that any compensation for loss of earning power paid to him goes indirectly to benefit her, while the wife is under no such corresponding duty. This must of course be taken into account in any determination of her damages. But such elements of damage as her loss of the husband’s society and affection, and in some cases even the expenses to which she has been put in caring for him, remain uncompensated.”

The court in Yonner v. Adams, Del.Super., 167 A.2d 717, 728, in discussing the contention that permitting a wife a recovery for loss of consortium could result in the allowance of double damages, said:

“In Nickel v. Hardware Mutual Casualty Co., supra, it is argued that the husband [269 Wis. 647, 70 N.W.2d [205] 208]:

“ <* * * js entitled to recover full compensation for all injuries he sustained, including that for being incapacitated, for his inability to care for, protect, and associate with his wife; If she were authorized to recover, .from the same wrongdoer the damages she has sustained for the same injuries which her husband may recover for and out of which recovery he is presumed to support and care for her, then recovery would be double * * *.’

“To the same effect is Deshotel v. Atchison, Topeka & Santa Fe Ry. Co., supra, wherein it is stated that [50 Cal.2d 664, 328 P.2d [449] 451]:

“ ‘A judgment obtained by a husband after he is injured by a third person might include compensation for any impairment of his ability to participate in a normal married life, and, if his wife is allowed redress for loss of consortium in a separate action, there would be danger of a double recovery.’

“The difficulty I find with these analyses is their failure to distinguish the injured husband’s personal loss from the separate, distinct and legally recognized loss suffered by his wife. Take the case of a husband who suffers an incapacitating injury to his reproductive organs. In his personal injury suit it is clear that his damages are predicated upon his physical injury which precludes him from copulation, procreation, and an otherwise full enjoyment of his marital state. However, the wife’s loss is just as real as it is distinct. She can no longer enjoy her legally sanctioned and morally proper privilege of copulation or procreation, and is otherwise deprived of her full enjoyment of her marital state. These are her rights, not his.”

Prior to the date of the Bernhardt case, two Missouri courts of appeals had denied the right of a wife to recover for loss of the society of her husband due to his negligent injury. Stout v. K. C. Terminal Ry. Co. (1913), 172 Mo.App. 113, 157 S.W. 1019, and Gambino v. Manufacturers’ Coal & Coke Co. (1913), 175 Mo.App. 653, 158 S.W. 77. Inasmuch as the majority opinion in the Bernhardt case did not mention those cases, although the dissenting opinion dealt with them at 208 S.W. 470, and inasmuch as the reasons assigned for the results in those cases have been reviewed herein, we shall not analyze each specifically. Suffice it to say that for the same reasons that Bernhardt v. Perry, supra, should no longer he followed, the opinions in the two courts of appeals cases last above cited should no longer be followed.

Although, as we have stated, it is our conclusion that the majority opinion in Bernhardt v. Perry, supra, is clearly erroneous, it should be noted that at the time of that opinion the jurisdictions which had passed on the question almost unanimously had denied the right of the wife to recover for loss of consortium due to the negligent injury of her husband. It was not until an opinion by the Federal District Court for the District of Columbia in 1950 that any court permitted the recovery by a wife for the loss of consortium of her husband due to an injury to him by reason of the negligence of another. In Hitaffer v. Argonne Co. (Dist. of Col.), 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, the court considered the matter as one of first impression and, recognizing the unanimity of authority to the contrary, proceeded to answer logically and convincingly the various reasons which had been asserted by the courts which had considered the question and denied the wife the right of recovery. See the cases cited in Hitaffer at page 812, footnote 5.

Since the Hitaffer decision the question has been considered often. The courts in fifteen jurisdictions have continued to deny the wife the right of recovery for loss of consortium. The opinions in some of the cases in which the right of recovery was denied make it plain and others imply that the respective courts agree with the view that the wife should be permitted to recover but are of the further opinion that the matter is one for the legislature.

Eight jurisdictions including Michigan, Illinois, Iowa,, Delaware, Arkansas, South Dakota, District of Columbia, and Georgia have permitted the wife to recover. Two Federal District Court decisions hold that the highest court of Nebraska and Montana would permit such recovery. All those decisions contain an array of overwhelmingly convincing arguments in support of their conclusions that the wife has the right to recover for loss of consortium due to the negligent injury of her husband. In many of those cases, as well as in many of those holding to the contrary (cited in footnote 2), there were dissenting opinions. It is impractical, with regard for reasonable opinion length, to review the many cases denying and permitting recovery. (See, generally, Annotation in 23 A.L.R.2d 1366.) We point out that in our view the reasons which had been assigned in the prior opinions denying recovery were effectively answered in the Hitaffer case. Those reasons, other than the two heretofore noted, were not asserted by the court in the Bernhardt case as reasons for denying recovery, nor are they urged by respondent. Additional reasons for denying recovery have been assigned in some of the cases subsequent to the Hitaffer case. One of those has been urged by respondent in support of its position and therefore we shall specifically consider it.

Respondent contends that if the wife is to be permitted a recovery (respondent calls it the creation of a cause of action for recovery) for loss of consortium resulting from negligent injury, it is the function of the legislature to provide that right. Respondent’s supporting arguments are that inasmuch as many cases must have been settled in reliance upon the opinion in the Bernhardt case, it would be unfair to permit persons who have paid out money in reliance upon that case to be exposed to uncontem-plated claims for damages by a wife for the loss of consortium; that an extension of the right to the wife to recover for loss of, consortium involves questions of policy and would probably open the door to claims by others bearing a close relationship to the injured party, such as a child or a parent; and that passing the problem on to the legislature would permit definition of the term “consortium” and allow the legislature to specify the elements of consortium for which damages should be allowed and the manner in which they should be computed. And finally, it is suggested by respondent that certain courts, viz., North Carolina, Connecticut, Massachusetts, and New York, have held that because no action may be maintained by the wife for loss of consortium, none should exist in favor of the husband; and that the “argument that equality of the sexes calls for a change overlooks that the husband’s right to damages for loss of consortium is based on outworn theory,” and thus, we take it that the respondent means, the legislature might wish to make the rights of the husband and wife equal by denying both the right to recover for loss of consortium.

In the present case, we have for decision only the question whether the wife should be permitted to recover for the loss of consortium of her husband under existing conditions. If she should be so permitted, the fact that to so hold might cause others to assert causes of action, e. g., a child or parent, is no reason to deny a wife an existing right of action. Nor does the fact that the legislature in its wisdom may deny the right to recover for loss of consortium to both husband and wife have any apparent bearing upon the question before us.

Respondent’s other argument is, in our opinion, more substantial. It is true that the doctrine of stare decisis is in a measure based upon public policy. Consequently, a decision of this court should not be lightly overruled, particularly where, as here, the opinion has remained unchanged for many years. In those instances, however, where it appears that an opinion is clearly erroneous and manifestly wrong, the “rule of stare decisis is never applied to prevent the repudiation” of such a decision. O’Leary v. Illinois Terminal R, Co., Mo. (en banc), 299 S.W.2d 873, 879[1,2]. It seems to us that less harm would result from overruling the Bernhardt case than from further withholding a wife’s right to recover for loss of consortium due to the negligent injury of her husband.

The Supreme Court of Illinois in Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, in an opinion permitting the wife to recover for loss of consortium due to negligent injury of her husband, said at page 892: “We find no wisdom in abdicating to the legislature our essential function of re-evaluating common-law concepts in the light of present day realities. Nor do we find judicial sagacity in continually looking backward and parroting the words and analyses of other courts so as to embalm for posterity the legal concepts of the past.”

The all-pervading and overwhelming fact is that the concept of the inferior status of the wife has been totally repudiated and for this court to perpetuate the erroneous denial of a right of a wife based upon that repudiated early common-law concept on the ground that if that manifest wrong is to be righted, it must be so done by the legislature, would be an improper avoidance of our judicial function. “Decisions founded upon the assumption of a bygone inequality were [are] unrelated to present-day realities, and ought not to be permitted to prescribe a rule of life.” Cardozo, Growth of The Law, 105, 106.

The judgment is reversed and the case remanded.

PER CURIAM.

The foregoing opinion by COIL, C., is adopted as the opinion of the court en Banc.

WESTHUES, C. J., and DALTON, HOLLINGSWORTH and HYDE, JJ., concur.

EAGER, J., dissents in separate opinion filed.

STORCKMAN and LEEDY, JJ., dissent and concur in separate dissenting opinion of EAGER, J.

EAGER, Judge

(dissenting).

I find myself wholly unable to concur in the principal opinion. That opinion follows an admittedly minority view which originated in 1950, and which, to me, has no such force or logic as to make it at all impelling. The theory was firmly rejected by this Court in Banc in 1918 in Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 13 A.L.R. 1320, and, except for an apparent desire to renovate the law and create new actions, I see nothing to suggest a total turnabout now, or to make such action desirable.

As a practical matter, we know that substantially all such suits by wives would be filed as separate and subsequent suits in which they would hope for greater damages than if joined with the husbands’ suits. Further, as a practical matter, it would be virtually impossible to prevent substantial duplication and overlapping of damages in the two suits. The loss of “consortium” has been and is, at best, a vague and nebulous thing; any possible recovery by the wife would be based upon the identical injuries for which the husband had fully recovered. In his suit he would presumably recover not only for his physical injuries and disability, pain, physical and mental suffering, loss of earnings (and consequent loss or lessening of his ability to support the wife), but also for the loss of his ability to consort and associate normally with his wife, and all expenses, past, present and future. It has heretofore proved most difficult to keep the submission of all these elements reasonably straight, even in one case. The majority opinion asserts that the recovery of double damages could be “avoided by delineating accurately the items properly in-cludable in the husband’s damages and by permitting the wife in her separate action to recover for the loss of only those elements of consortium which, under the facts of the particular case, represent separate and distinct losses to her.” A reference to some of the items of damages in the petition gives some indication of how unrealistic this statement is. After reciting alleged specific injuries to the husband covering nearly two pages of the transcript, the petition alleges that the plaintiff has been and will be in the future “deprived of the consortium and love and affection and support of her husband” ; that “prior to his injury * * * she was entirely dependent upon him for support and the necessities of life”; that her husband has been reduced to “a physical and psychological wreck”; that she has and will “be deprived of normal conjugal affection and of his comfort and society and of his aid and companionship”; and that she will “be required to tend and care for him and to nurse and provide for him and to undertake his share of the management of their family and the upbringing of their children.” The judge who is able to avoid double damages by “accurately delineating” the items that the husband has recovered or will recover in another action in another court, and correctly instruct the jury on the items of damages properly recoverable in this particular case will indeed need the wisdom of a Solomon, not to mention the utter confusion of the juries. The reason for these difficulties is that we are dealing mostly with intangibles in the gray areas that are neither black nor white and in which the line of demarcation is largely imaginary and difficult to draw even for the trained legal mind. The difficulty cannot be avoided by passing on to the jury such vague and unfamiliar terms as “consortium”, “conjugal rights”, and “conjugal affections”. While damages in personal injury cases cannot be measured by fixed standards, they should not rest on speculation and conjecture. The policy of the law is to restrict items of damage to those which can be measured rather definitely by a money value rather than to enlarge on them. In so far as we have been able to observe, where the legislature has acted it has not permitted any recovery for loss of services or consortium. Thus, the wrongful death action contemplates pecuniary injury or benefit as the basis of the right of action. Section 537.090, RSMo 1959, V.A.M.S.; Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 954 [6], 145 A.L.R. 1176; Szofran v. Century Electric Co., Mo.App., 255 S.W.2d 443, 450 [10]; Wilt v. Moody, Mo., 254 S.W.2d 15, 19 [5,6]. The Workmen’s Compensation Law, which largely supplanted master and servant negligence cases, provides fixed, pecuniary schedules of recovery. Sections 287.190, 287.200, 287.240, RSMo 1959, V.A.M.S. And if, perchance, the legislature should choose to enact any other compensation law or laws to replace existing tort actions in other fields, it does not appear likely that it would provide damages for loss of consortium or services. The overburdening of our existing personal injury actions with fringe benefits might hasten the day when the legislature would so act. Adequate compensation can be obtained within the framework of existing actions. If the right of recovery is extended to the wife in a lawsuit such as this, we can see no reasonable ground for not granting it eventually to children and perhaps parents or others similarly situated.

The Married Women’s Act simply gave to a wife a separate legal existence; it gave her the right to sue for and control her real and personal property, to contract with respect thereto, and thus to have a right of action for “violation of her personal rights.” Generally, the Act did not create new causes or rights of action but merely released married women of restrictions which the common law had imposed. It is my view that such a right of action as is here sought is not one based upon an injury to the personal rights of the wife and that it is not supported by the Married Women’s Act. The emancipation of women by the Married Women’s Act from the domination and virtual ownership of their husbands, effectively argues for the abolition of the right of action now existing in the husband, for he no longer owns her or her services or her earnings and the idea is somewhat archaic.

Instead of extending the right to recover for consortium, this court should consider limiting or abolishing the right where it exists. We need not consider exhaustively the effect of the Married Women’s Act and the trend to the complete emancipation of women both socially and economically, but enough is readily apparent to indicate that the reasons which gave rise to the common-law action no longer exist. For example, this court has decided that the husband’s common-law right to damages for loss of his wife’s services and consortium resulting from her employer’s negligence has been extinguished by the Workmen’s Compensation Act where the wife has received compensation. Sections 287.020, 287.090, 287.-110 and 287.120, RSMo 1959, V.A.M.S.; Holder v. Elms Hotel Co., 338 Mo. 857, 92 S.W.2d 620, 622 [3 & 4], 104 A.L.R. 339; Sharp v. Producers’ Produce Co., 226 Mo.App. 189, 47 S.W.2d 242, 244 [3, 4]. The Holder case further decides that the destruction of the right of action is not unconstitutional.

It is just as logical to say that the Married Women’s Act abolished the husband’s right to sue for loss of services and consortium where the wife has sued and recovered compensation in a negligence action for identical or related items of damages. By statute the State of Kansas has expressly provided that the right of action to recover for a wife’s loss of ability to perform services "shall vest solely in her” and that her recovery, in so far as it is based upon the loss or impairment of her ability to perform services in the household and in discharge of her domestic duties, shall be for the benefit of her husband “so far as he shall be entitled thereto.” Kansas, G.S.1949, 23-205; Cornett v. City of Neodesha, 187 Kan. 60, 353 P.2d 975, 977 [2]. It would seem that a married couple could be trusted to recover and share the items of damage in which they have a joint or common interest. Consortium seems to be a relic of the times when only the husband was considered to have any such right and his recovery was for both. To require a court and jury to divide and apportion the right is asking them to do something which is next to impossible and wholly unnecessary, since each spouse may now sue for his or her physical injuries and recover adequate damages in such action. The recent case of Croker v. Consolidated Service Car Co., Mo., 365 S.W.2d 524 (decided February 11, 1963) illustrates the complexities which arise under our Married Women’s Act, even as heretofore construed. Our efforts should be devoted to avoiding conflicting and overlapping claims rather than creating more of them.

The alienation of affection cases cited in the majority opinion are of no particular consequence in this case. An alienation of affections case is an intentional and willful tort. Sandler v. Schmidt, Mo., 263 S.W.2d 35, 38 [4]. Such an action is one based upon a direct injury to the wife; it is not one tacked on to a right of action resting solely in the husband for his own injuries. Mental distress and anxiety can generally be recovered where the tort is willful and intentional, but not in a simple negligence case unless the person suing has also suffered physical injuries. Then, too, an alienation case does not present the problem of dividing damages for consortium, with the possibility of double recovery.

The opinion in Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, from which the majority opinion quotes an exhortation, actually demonstrates the real lack of reason in permitting any separate action for consortium. As one dissenting judge said (there were three) : “It is no more than an historical accident that the husband’s common-law action survived the enactment of the Married Women’s Act.” 170 N.E.2d loc. cit. 893. If by reason of the Married Women’s Act the court has the power to create a cause of action, it must also have the right to require that the injured spouse recover for all the damages resulting from loss of consortium or services, or both. The day is long since past where distinctions could be made on the basis that a woman’s place was in the home and only the husband worked elsewhere. Today’s husbands help with the housework and wives take employment in business and industry. Every trial lawyer has heard testimony in personal injury suits that the casualty has adversely affected not only the physical vigor of the injured spouse but also his or her mental attitude toward the other spouse and the children. The plaintiff in such an action should be entrusted with the right and duty to recover the joint or indistinguishable items of damage.

We cannot agree with the statement of the majority opinion that Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, “is clearly erroneous and manifestly wrong and should no longer be followed.” The Bernhardt case, decided in December 1918, appears to have carefully and thoroughly considered the issues and the opinion does not disclose any material matter of law or fact that was overlooked or misinterpreted. The opinion in the present case disagrees with the result and relies strongly upon alienation of affection cases. The same alienation of affection cases were considered and distinguished in the Bernhardt case. There are additional reasons why the alienation cases are distinguishable, some of which have been previously noted. We cannot agree that the Bernhardt decision is wrong, certainly it is not “clearly erroneous and manifestly wrong”. The court should proceed with caution and exercise restraint in overruling established cases, and especially in creating new causes of action or items of damage in personal injury suits. In these days of bureaucracy and of determination by administrative procedure, we are treading on dangerous ground. If the courts do not use their powers to simplify and expedite procedures and the disposition of cases, they are inviting the legislative branch to do so. If this court makes any change, it should be by way of extinguishing the husband’s action for consortium and loss of services. This would produce equality. The present procedures furnish the means for adequate compensation for injury to either spouse.

The existing rule, that a wife has no right of action for loss of her husband’s society, has been recognized throughout the judicial history of Missouri. When questioned in 1918, it was reaffirmed. It has become a matter of state policy, and the legislature has never seen fit to intervene. A change in this rule now would inevitably loosen a flood of litigation, and eventually the same rights would undoubtedly be accorded to children, parents, and other relatives. It is not primarily the duty or function of the courts to create new rights of action. They do, in aid of the normal progress of the common law, have the power to recognize the necessity for change and to move with the necessity, but that power is and should be used with great restraint. If such a radical change is to be made as is proposed here, it should be made by the legislature. Thus, if such an action be created, terms and conditions could be laid down which might make it more workable, as for instance, the joining of both causes of action in one suit and more specifically defining the nebulous basis or grounds of recovery. And as already expounded, the legislature might also wish to take a long, hard look at the existing rights of action of husbands for loss of the services, society, aid, comfort and consortium of their wives in the event of negligent injury to the wife.

Upon the final adoption of the majority opinion, at least one result will be certain; the long-suffering Missouri holders of liability insurance policies will pay still more premiums; upon them and upon the already overburdened courts will fall the greatest grief of this fallacious idea.

      . Except in Hipp v. E. I. Dupont De Nemours & Co. (1921), 182 N.C. 9, 108 S.E. 318, which was overruled in Hinnant v. Tide Water Power Co. (1925), 189 N.C. 120, 126 S.E. 307, and in an early Ohio case which was overruled in Smith v. Nicholas Bldg. Co. (1915), 93 Ohio St. 101, 112 N.E. 204, L.R.A.1916E, 700.

      . Jeune v. Del E. Webb Const. Co. (1954), 77 Ariz. 226, 269 P.2d 723; Deshotel v. A. T. & S. F. Ry. Co. (1958), 50 Cal.2d 664, 328 P.2d 449; Franzen v. Zimmerman (1953), 127 Colo. 381, 256 P.2d 897; Ripley v. Ewell (1952), Fla., 61 So.2d 420; Brown v. Kistleman (1912), 177 Ind. 692, 98 N.E. 631, 40 L.R.A.N.S., 236; Cravens v. Louisville & N. R. Co. (1922), 195 Ky. 257, 242 S.W. 628; Coastal Tank Lines v. Canoles (1955), 207 Md. 37, 113 A.2d 82; Larocca v. American Chain & Cable Co. (1952), 23 N.J.Super. 195, 92 A.2d 811; Kronenbitter v. Washburn Wire Co. (1958), 4 N.Y.2d 524, 176 N.Y.S.2d 354, 151 N.E.2d 898; Smith v. Nicholas Bldg. Co. (1915), 93 Ohio St. 101, 112 N.E. 204, L.R.A.1916E, 700; Howard v. Verdigris Valley Elec. Co-op. (1949), 201 Okl. 504, 207 P.2d 784; Josewski v. Midland Constructors (1953), D.C.S.D., 117 F.Supp. 681; Garrett v. Reno Oil Co. (1954), Tex.Civ.App., 271 S.W.2d 764; Ash v. S.S. Mullen, Inc. (1953), 43 Wash.2d 345, 261 P.2d 118; Nickel v. Hardware Mut. Cas. Co. (1955), 269 Wis. 647, 70 N.W.2d 205; Page v. Winter (1962), 240 S.C. 516, 126 S.E.2d 570.

      . E.G., Ripley v. Ewell, supra, 61 So.2d 423; Garrett v. Reno Oil Co., supra, 271 S.W.2d 766, 767; Howard v. Verdigris Valley Elec. Co-op. supra, 207 P.2d 788; Page v. Winter, supra, 126 S.E.2d 571.

      . Hitaffer v. Argonne Co. (1950), 183 F.2d 811; Montgomery v. Stephan (1960), 359 Mich. 33, 101 N.W.2d 227; Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881, 86 A.L.R.2d 1184; Acuff v. Schmit (1956), 248 Iowa 272, 78 N.W.2d 480; Missouri-Pac. Trans. Co. v. Miller (1957), 227 Ark. 351, 299 S.W.2d 41; Hoekstra v. Helgeland (1959), 78 S.D. 82, 98 N.W.2d 669; Yonner v. Adams (1961), Del.Super., 167 A.2d 717; Brown v. Georgia-Tennessee Coaches (1953), 88 Ga.App. 519, 77 S.E.2d 24; Walden v. Coleman, (1962), 105 Ga.App. 242, 124 S.E.2d 313.

      . Cooney v. Moomaw (1953), D.C.Neb., 109 F.Supp. 448; Duffy v. Lipsman-Fulkerson & Co. (1961), D.C.Mont., 200 F.Supp. 71.

      . Now Sections 451.250-451.300, RSMo 1959, V.A.M.S.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Arthur CHAPMAN, Appellant.
    No. 49625.
    Supreme Court of Missouri, Division No. 2.
    March. 11, 1963.
    No attorney for appellant.
    Thomas F. Eagleton, Atty. Gen., James W. Steele, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   STOCKARD, Commissioner.

Defendant Arthur Chapman has appealed from the judgment of the Circuit Court of Texas County whereby he was found guilty of stealing a motor vehicle and sentenced to confinement for two years in the penitentiary. He has filed no brief in this court. The sufficiency of the evidence is not challenged, and the statement of the facts may be brief.

On Sunday, March 11, 1962, at 5:30 o’clock in the afternoon Donald Ellis parked his father’s 1957 Plymouth automobile in front of his home in Cabool, Missouri. The next morning the automobile was gone, and no one, including defendant, had been given permission to use it. At 4:30 o’clock on the morning of March 14, a police officer of the City of Rolla saw the Ellis automobile being driven by defendant near the bus station. Defendant drove into a parking area, left the automobile and entered the station. When the police officer learned by radio from police headquarters that the automobile had been stolen he examined it and found therein a hypodermic needle and two bottles of narcotics in a satchel, and he also found some articles of clothing which had defendant’s name written on them. Defendant was apprehended about three hours later. At the trial he did not testify or offer any testimony.

Defendant filed no motion for new trial denominated as such, but after verdict he filed a “Motion to Modify Judgment” which the trial court considered to constitute a motion for new trial, and so shall we. In the motion defendant requested that the trial court “modify the verdict of said jury” because the court denied his motion that he be granted an eye examination, and because it “denied an application * * * for subpoena of defense witnesses to be heard on the trial.”

The trial was held on May 21, 1962. On April 6, 1962, defendant, acting pro se, filed a motion in which he stated that he was charged with “violation of Missouri Auto Theft Statute” and that he elected to act as his own defense counsel. He then alleged that he was “lawfully and Constitutionally entitled to call and have witnesses in his behalf and to have the assistance and protection of [the] court guaranteeing such right,” that he “suffers from an incurable eye depth perception affliction with other allied causation which in itself is bonifide evidence refuting aforesaid State’s charge of theft of a motor vehicle and driving same many miles guided by artificial lighting,” and that he “possesses no monies or other worldly possessions with which to procure an eye examination by a qualified specialist.” He then requested that the trial court “order that he be given a thorough examination by an eye specialist skilled in eye diseases at aforesaid Respondent’s [State of Missouri] expense and that a report therefrom be filed in evidence in this Court.” On May 14, after “informal discussion in open court between defendant and Court,” the trial court appointed counsel, a member of the Texas County bar, to represent defendant. The transcript shows no ruling on the motion filed pro se on April 6. When defendant’s trial commenced on May 21 he announced ready, and at no time during the trial did he make any further request for a physical examination at either his or the State’s expense. The failure to seek a ruling on his motion and the announcement of ready for trial could properly be considered as an abandonment of the motion. However, whether or not the motion was in fact abandoned, no prejudicial error resulted.

“A request by accused [when incarcerated] that he be permitted to undergo a physical examination so it may be used as evidence at the trial is addressed to the sound discretion of the court, and in the exercise of discretion such an examination may be permitted or denied.” 23 C.J.S. Criminal Law § 967, p. 872. See Browder v. Commonwealth, 136 Ky. 45, 123 S.W. 328, where the request was granted; People v. Crump, 5 Ill.2d 251, 125 N.E.2d 615, 52 A.L.R.2d 834, and Reynolds v. State, 220 Ark. 188, 246 S.W.2d 724, where the request was properly denied; and Morton and Ashcraft v. State, 207 Ark. 704, 182 S.W.2d 675, where it was held error to deny the request. However, in none of these cases was the requested physical examination to have been at the expense of the State. The right of the defendant to an examination by a specialist at the expense of the State would depend upon either a statute or rule granting such right or that it was essential to due process of law. We have no such statute or rule in this State, and such an examination at the expense of the State, at least under the circumstances shown in this case, certainly is not essential to the minimum requirements of due process under either the Missouri or United States Constitution.

On May 14, 1962, defendant filed what he denominated an “Application for Subpoena” which in its entirety was as follows:

“Arthur Chapman, Defendant in the above cause, requests the appearance of below described witnesses on a day set certain for purpose of identification, on the ground that testimony thereof is vital, material, and necessary to the defense:

“One and all Employees of the Greyhound Bus Depot located at Rolla, Missouri who were present, on duty, or otherwise within or on the confines of said Bus Depot between the inclusive hours of 12:30 A.M. and 5:00 A.M. on the inclusive days of March 13 and 14, 1962. True names of said witnesses to Defendant is unknown.”

It is not clear from the above application whether defendant sought to have the employees of the bus station made available to him before trial for identification of them by him or of him by them, or whether he wanted them present at the trial. The transcript reveals no ruling on the application. Seven days later the case went to trial before a jury, defendant and his counsel announced ready for trial, defendant offered no testimony and made no request for time to obtain witnesses and entered no objection that the persons purportedly described in the application were not present and available for his use as witnesses.

Section 18(a) of Article I, Constitution of Missouri, V.A.M.S. and Supreme Court Rule 25.15, V.A.M.R., expressly provide that in criminal prosecutions the accused shall have the right to have process to compel the attendance of witnesses in his behalf, and this right should be carefully guarded and protected by the courts. However, a vaguely worded application of equivocal meaning such as we have here, not specifically ruled on and not pursued when adequate time and opportunity to do so existed, cannot after verdict form the basis for prejudicial error when defendant announced ready for trial and then proceeded throughout the trial with no request for the attendance of any witness and made no offer of proof as to what would be the expected testimony of any desired witness'.

We have examined the record as required by Supreme Court Rules 28.02 and 28.08, V.A.M.R., and find it sufficient as to those matters therein specified.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    JACKSON COUNTY PUBLIC WATER SUPPLY DISTRICT NO. 1, Appellant, v. STATE HIGHWAY COMMISSION of Missouri, Respondent.
    No. 49564.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.

      Charles W. Hess, Paul Van Osdol, Jr., Richard M. Erickson, Terrell, Hess, Van Osdol & Magruder, Kansas City, for appellant.
    Robert L. Hyder, Wilkie Cunnyngham, Jefferson City, for respondent.
   HOUSER, Commissioner.

This is an appeal from the judgment of the circuit court dismissing a petition of Jackson County Public Water Supply District No. 1 filed under the provisions of Chapter 536, and particularly §§ 536.-100 and 536.110, RSMo 1959, V.A.M.S., for review of an order of the State Highway Commission directing the relocation of certain of petitioner’s water lines at the sole cost of the Water District.

Former U. S. Highway 71 runs south from Kansas City to the Jackson-Cass County line. Originally it was a concrete slab 30 feet wide, one half of which was used for northbound, the other half for southbound, traffic. The highway runs generally through the territory of the Water District, which originally was 10 miles long north and south and extended approximately two miles east and west on each side of the highway. Two of the primary lines of the Water District, laid in the right of way of old U. S. Highway 71 many years ago, ran north and south paralleling the highway. In 1957 the Highway Commission commenced to acquire additional widths of right of way for the reconstruction and improvement of U. S. Highway 71 as a two-lane, limited-access highway with divided throughway lanes for through travel, and frontage-roadways for land service lanes. Additional right of way was obtained for interchange ramps. In order to make these highway improvements it was necessary to remove and relocate certain water lines or mains of the Water District which had been constructed and maintained in the old highway right of way. The Highway Department sent its plans to the Water District for the latter’s use in planning adjustments made necessary by the proposed construction, and asked the Water District to submit its plans and estimates for the necessary adjustments by a certain date. The Water District’s plans were submitted to and approved by the Highway Commission and the Water District was officially notified to proceed with the adjustments at once. There was no disagreement between the parties as to the necessity for the relocation, or what lines should be moved, or where in the right of way they should be located. The disagreement arose because of the Highway Commission’s direction that the Water District bear the cost and expense of relocation, except for one small item of $3,433, which is not in controversy. The Water District asked for and was granted a hearing before the Highway Commission, at which it informed the commission that the estimated cost of relocation of the water lines was $107,550, including engineering expense; that it did not have sufficient income after expenses and debt retirement requirements to pay for the relocation; that the district contained 8,000 water users; that it had a large bonded indebtedness; that its water rates were considerably higher than the rates of other Missouri cities; and that due to rapid growth of population the demand for extension of its services and facilities was beyond its financial ability to satisfy. The Water District urged the Highway Commission to pay half the costs of the relocation and charge the other half to federal funds. After the hearing the Highway Commission made its order requiring the Water District to pay the relocation costs. When the Water District’s petition for review came on for hearing in circuit court the district offered to prove that after the commission hearing Kansas City had annexed the north part of the district, and that the size of the district had been reduced by detachment proceedings; that pursuant to §§ 247.085 and 247.160, V.A. M.S., Kansas City had contracted with the district to take over the annexed portion of the district, thereby reducing the number of water users left in the district to 2,640; reducing its revenue 64%, its assets 38%, and reducing its tax income, and that while the primary obligation of the district on the bonded indebtedness was reduced the district remained secondarily liable for the entire original amount of debt. The circuit court refused to receive this offer, found the petitioner not entitled to relief, and dismissed the cause with prejudice.

Appellant Water District takes the position that it was entitled to a fair hearing before the Highway Commission and a determination of the question whether the relocation costs should be imposed upon the Water District, and to present and have considered the equities involved and the undue hardship resulting from burdening its water users with the high costs of relocation, in view of the district’s financial condition; that a fair trial was not accorded; that the Highway Commission’s decision was arbitrary, capricious and unreasonable; that its order gave no consideration to the equities involved and imposed an undue hardship upon the Water District and its users; did not contain separate findings of fact and conclusions of law, as required; that the commission failed to differentiate between publicly and privately owned utilities, infringed upon the exclusive right of the board of directors of the Water District to manage its affairs, and imposed a financial obligation upon the Water District which its board of directors could not have undertaken under the restrictions imposed upon it by law.

The Highway Commission contends that the question whether the Water District can be required to pay the cost of moving its water lines located in the right of way of a public highway is settled by § 227.-240, RSMo 1959, V.A.M.S., and by the case of State ex rel. State Highway Commission v. Weinstein, Mo.Sup. (en banc), 322 S.W.2d 778; that the Highway Commission has complete discretion as a matter of policy as to whether it will use any of its funds for relocation costs, and that the matter is not subject to judicial review. Accordingly, the Highway Commission contends that it was not obliged to grant any hearing on the matter, and the fact that a hearing was accorded does not convert the proceeding into one properly cognizable under the provisions of the Administrative Review Act.

■ The Water District counters with the suggestion that the case of State ex rel. State Highway Commission v. Weinstein, supra, involved a privately owned utility, and that the ruling was not intended to apply to a public body such as this Water District; that § 227.240, V.A.M.S., has no application to a public body; that in ruling that case this Court did not envision the hardship its ruling would have if applied to a factual situation such as this one. In its reply brief the Water District for the first time makes a specific point that the Highway Commission’s order violates the express direction of § 226-150, V.A.M.S., which it says requires the Highway Commission to secure federal funds allotted to the state of Missouri under the Federal Aid Highway Act, for relocation of utilities.

We are of the opinion that the determination whether the cost and expense of removal and relocation of water lines in a state highway right of way shall be borne solely by the owner, or by the Highway Commission, or jointly, or otherwise, involves a matter of policy, the determination of which has been vested in the Highway Commission by § 227.240; that the commission has complete discretion to determine whether it shall use any of its funds for such purposes; that this matter is not required to be heard and determined by the Highway Commission and is not a proper subject for judicial review under the Administrative Procedure Act, and that this is true whether the owner of the water lines be a private corporation organized for profit or a public corporation organized as a political subdivision.

Chapter 227, V.A.M.S., governs the State Highway System. Section 227.240 of that chapter provides, in part, that the location and removal of all pipe lines erected or constructed “by any corporation, association or persons,” within the right of way of any state highway shall be under the control and supervision of the Highway Commission, insofar as the public travel and traffic is concerned and insofar as the same may interfere with the construction or maintenance of such highway. The Water District, organized as a county district under Chapter 247, V.A.M.S., Public Water Supply Districts, has been variously defined as a “political subdivision,” Public Water Supply Dist. No. 2 v. State Highway Commission, Mo.Sup., 244 S.W.2d 4, 6; a “public corporation,” § 247.010; a “political corporation [s] of the state of Missouri,” § 247.020. It is incorporated by decree of the circuit court under the procedure prescribed in § 247.040, for the purposes set forth in § 247.010. Its express powers are prescribed by §§ 247.050 and 247.080. We construe the word “corporation” in § 227.240, supra, to include public corporations such as this Water District. In reaching this conclusion we have considered State ex rel. St. Louis County v. St. Johns-Overland Sanitary Sewer Dist., 353 Mo. 974, 185 S.W.2d 780, 783, in which a public sewer district, a public corporation, was held subject to the statutory requirement that “any person, firm, association or corporation” procure a permit and give security before excavating in public roads. The reasonableness of this construction becomes evident by the following considerations. By the provisions of Art. 4, § 29, Constitution of Missouri, 1945, V.A.M.S., the Highway Commission has the dominant, primary and superior dominion over the highways of the state. Public Water Supply Dist. No. 2 v. State Highway Commission, supra, 244 S.W.2d, 1. c. 6. While the Water District has “the right to lay its mains in public highways,” this must be done “under reasonable rules and regulations of governmental bodies having jurisdiction of such public places.” § 247.200. Considering the object sought to be accomplished by § 227.240 it is inconceivable that the General Assembly in using the word “corporation” meant to restrict the application of § 227.240 to privately owned utilities and withhold from the Highway Commission authority to locate and remove the lines of utilities organized as public corporations. The lawmakers were concerned with the elimination of the impediment in cases where facilities of utilities interfere with the construction or maintenance of a highway, not with the internal organization and structure or public or private nature of the corporate owner of the facilities. We hold that a public water district is governed by § 227.240, supra.

The Water District forcefully argues that as a publicly owned utility it is entitled to different treatment than a privately owned utility. We do not agree. The Water District’s right to use the right of way was a license or privilege to occupy a certain location, subject to modification, State ex rel. State Highway Commission v. Weinstein, supra, 322 S.W.2d, 1. c. 783, under an implied obligation to make way for a proper governmental use of the right of way. The Water District used the right of way in its proprietary capacity. The use of a state highway by a utility for proprietary purposes, whether it be publicly or privately owned, must give way to a proper governmental use of the right of way by the Highway Commission. In availing itself of its statutory right to’ the free use of the old highway right of way, thereby avoiding acquisition costs for right of way through private property, the Water District received a benefit, Public Water Supply Dist. No. 2 v. State Highway Commission, supra, 244 S.W.2d, 1. c. 7, assumed the risk, and must be held to have occupied the right of way subject and subordinate to the implied obligation to relocate its facilities at its own expense should relocation become necessary in the interests of the traveling public, in the judgment of the Highway Commission. § 247.200; East Bay Municipal Utility Dist. v. County of Contra Costa (1962), 200 Cal.App.2d 477, 19 Cal.Rptr. 506, 508. This was an implied condition of the grant. Port of New York Auth. v. Consolidated Edison Co. (1960), 27 Misc.2d 45, 205 N.Y. S.2d 781; Green v. Noble (1961), 114 Ohio App. 321, 182 N.W.2d 569 [2].

Whether the order of the Highway Commission is subject to review under the Administrative Review Act depends upon whether this is a “contested case” within the meaning of § 536.100, which in turn depends upon whether § 227.240 requires “legal rights, duties or privileges” of the Water District “to be determined after a hearing” before the Highway Commission acting as an administrative body. § 536.010. If so the hearing and review provisions of the Administrative Review Act, Chapter 536, are applicable, and are not to be circumvented on the theory that the order is a policy decision made by the Highway Commission in its legislative capacity.

Section 227.240 provides for a hearing “upon the proposed plan of location and matters incidental thereto,” upon notice to the owner of the pipe lines, etc. containing a plan indicating “the places on the right of way at which such * * * pipe lines * * * may be maintained.” Under the doctrine of State ex rel. State Highway Commission v. Weinstein, supra, the Water District had a right to a hearing to determine whether the reconstruction of the highway in accordance with the plans of the Highway Commission made it necessary to move its water lines to the new location to prevent interference with the construction, maintenance or use of the reconstructed highway, and on judicial review a determination whether the Commission could reasonably have made findings that the mains in their old location would interfere with the construction, maintenance or use of the reconstructed highway and which would make it reasonable to require their removal to the proposed new location. But the Water District did not desire a hearing on this question, for it conceded and still concedes that the relocation of the water lines was a necessary result of the decision to widen and improve the highway, and it has no objection to the plan of relocation. The Water District was and is, interested solely in the question of its liability for the cost and expense of relocation.

Section 227.240 does not purport to authorize a hearing on this question, unless, it may be said that this is a “matter incidental” to the proposed plan of location. In view of other language in the section, we find that the question of cost and expense-of location is not a matter incidental to the plan of location, in the sense that it is a matter of legal right, duty or privilege to-be determined after a hearing. Paragraph 2 of § 227.240 expressly states and declares, the legislative policy of the state on the question of cost and expense in such cases,, as follows: “The removal of [pipe lines] shall be made at the cost and expense of the owners thereof unless otherwise provided by said commission * * *.” Thus, the allocation of relocation costs, as a matter of policy, has been committed solely to-the discretion of the Highway Commission (as are the location and design of highways, the necessity and propriety of new plans for the reconstruction of a highway, State ex rel. v. Weinstein, supra; the-building of interstate bridges, State ex rel. State Highway Commission v. Sevier, 339 Mo. 479, 97 S.W.2d 427; the determination of the amount and time of payment of' a refund for a bridge taken over by the Highway Commission, State ex rel. Kansas City v. State Highway Commission, 349 Mo. 865, 163 S.W.2d 948). That discretion has always, including this instance, been exercised in a manner consistent with the policy declared by the General Assembly, except on urban projects in which the city furnishes one half the cost (a situation not involved here). In adhering to the public policy thus declared by the General Assembly the Highway Commission exercised a legislative discretion, and found the necessary legislative facts, facts not pertaining to a particular party but which bear upon law, policy or discretion, Davis, Administrative Law Treatise, § 7.20, by its own methods, which are not subject to judicial review or control. “[Wjhile Sec. 227.240 authorizes the Commission to pay part of the cost of relocation, the Water Company has no right to require it to do so in whole •or in part. The Commission has complete ■discretion as a matter of policy as to whether or not it will use any of its funds for such •costs and that matter is not subject to judicial review.” State ex rel. v. Weinstein, supra, 322 S.W.2d, 1. c. 785. In this situa-tion the Highway Commission had no conceivable duty to the Water District and the Water District had no enforceable right or privileges with reference to the cost or expense of relocation. The limited question the Water District wanted determined by the Highway Commission did not call for a quasi-judicial decision within the meaning of Article V, Section 22 of Constitution of Missouri, 1945, but involved matters of policy which are committed solely to the discretion of the Highway Commission, and as such are not subject to the Administrative Review Act. There was no occasion for the holding of a hearing, or the determination by the Highway Commission of any “adjudicative facts pertaining to a particular party” under past and present existing facts. See Davis, Administrative Law Treatise, § 7.20. The fact that the Highway Commission granted a hearing, as a matter of courtesy and convenience, conferred upon the Water District no procedural rights.

This eliminates from our consideration -the six assigned reasons why appellant claims the order of the Highway Commission is illegal and void.

The judgment is affirmed.

HOLMAN, C., concurs.

COIL, C., not participating.

PER CURIAM.

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

All of the Judges concur.

      . “1. The location and removal of all telephone, telegraph and electric light and power transmission lines, poles, wires, and conduits and all pipe lines and tramways, erected or constructed, or hereafter to be erected or constructed by any corporation, association or persons, within the right of way of any state highway, insofar as the public travel and traffic is concerned, and insofar as the same may interfere with the construction or maintenance of any such' highway, shall be under the control and supervision of the stato highway commission.
      “2. The commission or some officer selected by the commission shall serve a written notice upon the person or corporation owning or maintaining any such lines, poles, wires, conduits, pipe lines, or tramways, which notice shall contain a plan or chart indicating the places on the right of way at which such lines, poles, wires, conduits, pipe lines or tramways may bo maintained. The notice shall also state the time when the work of hard surfacing said roads is proposed to commence, and shall further state that a hearing shall be had upon the proposed plan of location and matters incidental thereto, giving the place and date of such hearing. Immediately after such hearing the said owner shall be given a notice of the findings and orders of the commission and shall be given a reasonable time thereafter to comply therewith; provided, however, that the effect of any change ordered by the commission shall not be to remove all or any part of such lines, poles, wires, conduits, pipe lines or tramways from the right of way of the highway. The removal of the same shall be made at the cost and expense of the owners thereof unless otherwise provided by said commission, and in the event of the failure of such owners to remove the same at the time so determined they may be removed by the state highway commission, or under its direction, and the cost thereof collected from such owners, and such owners shall not be liable in any way to any person for the placing and maintaining of such lines, poles, wires, conduits, pipe lines and tramways at the places prescribed by the commission.
      “3. The commission is authorized in the name of the state of Missouri, to institute and maintain, through the attorney general, such suits and actions as may be necessary to enforce the provisions of this section. Any corporation, association or the officers or agents of such corporations or associations, or any other person who shall erect or maintain any such lines, poles, wires, conduits, pipe lines or tramways, within the right of way of such roads which are hard-surfaced, which are not in accordance with such orders of the commission, shall be deemed guilty of a misdemeanor.”


text:
    Gladys Miller EDENS, Appellant, v. Marie MYERS, Respondent.
    No. 49299.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.

      Donald L. Randolph, Kansas City, for appellant.
    Lester J. Vandever, and Deacy & Deacy, Kansas City, for respondent.
   HOUSER, Commissioner.

Action for $45,000 damages for personal injuries. Jury verdict for defendant. Plaintiff appeals.

On August 14, 1959 plaintiff was driving an automobile out of a parking lot in a line of traffic. Ruth McCarty,, a passenger in plaintiff’s automobile, was sitting in the right front seat. The two cars immediately in front of plaintiff’s car came to a stop. Plaintiff in turn stopped the car she was driving. While plaintiff’s car was standing stationary plaintiff heard her name called. Plaintiff turned her head to the left to “spot” the person calling her name. While she was looking to the left plaintiff’s car was struck on the right front door by the rear end of defendant’s automobile, which was backing out of an adjacent parking “slot.” Before the accident happened plaintiff had not looked in the direction where defendant’s car had been parked. At the moment of collision plaintiff had one hand on the steering wheel and her body was in a twisted position.

As defendant prepared to leave the space where her car was parked she entered her car and looked to her left. There were no cars in that direction. Then she looked to her right. Seeing no cars to the right she “started backing out, very slow, just easing out, and [she] felt a little bump — .” Defendant did not see plaintiff’s car at any time before the accident and did not know where plaintiff came from. Defendant’s car, going 1 or 2 m. p. h., “just barely creeping backwards,” traveled about 5 feet from its parked position before the impact. It was but a slight impact,, a little, small bump. Defendant “barely felt it.” The only noise was a dull thud.

Plaintiff claimed, however, that she felt a severe jolt; that her head was jerked back and she felt a pain in her neck. Plaintiff was not thrown about in the car. No part of her head or body struck anything. Passenger Ruth McCarty’s neck was not snapped back as a result of the little blow and she was not injured. No damage was done to the rear bumper or other parts of defendant’s car. The only damage done to the car plaintiff was driving was a small dent in the right door. Plaintiff got out of the car and talked to defendant. Defendant asked plaintiff if she was injured. Plaintiff said “No.” Plaintiff made no complaint of injury to anyone at the scene. Plaintiff was more worried about the car she was driving — a borrowed car. After the collision plaintiff picked up Gladys Verback, who had witnessed the collision, and drove 12 miles to Independence with her two passengers. During the trip plaintiff said nothing about having been injured; made no complaint on injury; spent her time talking about an accident in which she had been involved three or four weeks previously.

In her deposition plaintiff denied ever having received any accidental injuries of any kind, except a broken ankle at age 18, and denied having been in any automobile accident in her life other than the accident of August 14, 1959. At the trial this testimony was impeached by the following evidence: Approximately one week before August 14, 1959 plaintiff had been in a strikingly similar accident. Another motorist had backed a car into plaintiff’s automobile,, that time striking the left front door. That impact was more violent and the damage to the cars more severe than the instant case. As a result of that collision plaintiff’s car was in the garage for repairs and she was using a “loaner” on August 14, 1959. Plaintiff was shown to have been a participant in other accidents, as follows: A fall at Easter time, 1959, resulting in a trip to the hospital for X rays, and the application of a cast; two falls to the floor in the plant where she worked; an accident in 1951; many falls on the ice and snow; and a back strain when reaching over to pick up a bottle of starch. On September 2, 1959 — the first time she went to a doctor after the slight collision with defendant’s car — plaintiff complained not about a whiplash injury to the neck from an automobile collision, but that two weeks previously she had been hit on her right upper jaw by her niece while lying on a bed. Plaintiff was a “nervous wreck” before this happened, and had a long prior medical history.

Plaintiff introduced medical evidence that the accident of August 14, 1959 could have caused the sprain of the cervical muscles, and sprain of the neck, chronic type, right cervical nerve root irritation from liga-mentous sprain and low back sprain, with which they found plaintiff was suffering. Defendant’s doctor’s examination of plaintiff failed to reveal evidence of any injury due to the accident and he was of the opinion that the slight impact could not have caused the injury for which she filed suit. He attributed her condition to fibrositis and arthritic changes.

Plaintiff makes three points. First, she contends that “The verdict is not supported by the evidence and the court erred in entering judgment thereon” for the reason that it was “conceded at the trial that defendant backed her automobile into the stationary automobile in which plaintiff was seated behind the steering wheel. Reasonable minds could not differ in finding an invasion of plaintiff’s right by defendant’s negligence. Where it clearly appears that the verdict is not supported by the evidence the judgment will be reversed and a new trial granted.” In view of the fact that plaintiff had the burden of proof it was not necessary to have substantial affirmative evidence, or any evidence at a22, to support the defendant’s verdict. Conser v Atchison, T. & S. F. Ry. Co., Mo.Sup., 266 S.W.2d 587, 590 [5]; Conley v. Crown Coach Co., 348 Mo. 1243, 159 S.W.2d 281, 283 [1].

Second, plaintiff contends that she was entitled to judgment as a matter of law since her “legal right was infringed,” and that the court erred in receiving a verdict which did not allow at least nominal damages. If plaintiff is saying that the court should have directed a verdict for her at the close of the evidence she is in no position to make this claim, not having filed a motion for a directed verdict. Heideman v. Lorenz, Mo.Sup., 349 S.W.2d 230, 232 [2]. Aside from that deficiency, defendant’s concession that she backed her automobile into the side of plaintiff’s automobile did not entitle plaintiff to a judgment as a matter of law. Even if defendant had presented no evidence in defense of her conduct, plaintiff would not have been relieved of the Burden of proving the essential elements of her cause of action. Schaefer v. Accardi, Mo.Sup., 315 S.W.2d 230, 232 [2,3]. But defendant did offer evidence in defense: that she looked both ways, did not see the car plaintiff was driving, “eased out slowly,” thus testifying to facts which would support a finding that she exercised the required degree of care and was not negligent. Another essential element of plaintiff’s cause of action in addition to the element of negligence was that of injury. Defendant made no judicial admission that plaintiff sustained injuries as a result of the collision. Whether plaintiff was injured as a result of the collision was a hotly contested issue. Plaintiff’s proof of injury consisted of oral testimony which the jury was not required to believe. Schaefer v. Accardi, supra, 315 S.W.2d, 1. c. 233. The trial court properly submitted the case to the jury on all three issues, negligence, causation and injury, and did not err in receiving a verdict which did not award plaintiff at least nominal damages.

Third, plaintiff makes the point that the court erred in giving the following Instruction No. 5: “The Court instructs the jury that the fact that the plaintiff has brought suit claiming defendant was negligent and claiming that plaintiff was injured as a direct result of such alleged negligence is no evidence whatever that defendant was in fact negligent nor that plaintiff was injured as a direct and proximate result of such alleged negligence. Negligence is not in law presumed but must be established by proof as explained in other instructions. Neither are you permitted to base a verdict entirely and exclusively upon mere surmise, guesswork or speculation; and if upon the whole evidence in the case, fairly considered, you are not able to make a finding that defendant was negligent as submitted in other instructions and that such negligence, if any, was a direct and proximate cause of plaintiff’s being injured or that plaintiff was injured as a direct and proximate result of the collision in evidence without resorting to surmise, guesswork or speculation, outside and beyond the scope of the evidence and the reasonable inferences deducible therefrom, then it is your duty to and you must return a verdict against the plaintiff and in favor of the defendant.”

Appellant says No. 5 is unwarranted by the evidence and injects a false issue in the case, namely, the issue of negligence. As indicated, the issue of negligence was live and properly submitted to the jury by Instruction No. 1, given on behalf of plaintiff. There was no error in giving cautionary Instruction No. 5 with reference to the charge of negligence.

Appellant asserts that No. 5 is argumentative, repetitious, confusing, misleading, unfair comment and amounts to a lecture to the jury. In support of this thesis appellant cites Byrd v. McGinnis, Mo.Sup., 299 S.W.2d 455 and Vincent v. Raffety, Mo.App., 344 S.W.2d 293. The former case involves a burden of proof instruction, not one similar to No. 5. The instruction challenged there was approved. The case is cited for the court’s admonition to the bar to adopt and use more concise forms of instructions on burden of proof, without repetition and argument. We agree but do not find the principle applicable. Vincent v. Raffety relates to a burden of proof instruction which was not reproduced in the opinion but in referring to plaintiff’s contention that the instruction was unnecessarily verbose and lengthy the writer of the opinion noted that the bar has been urged to abandon long, repetitious instructions verging on the argumentative in favor of short, simple instructions. While the views therein expressed are still held, we do not find reversible error in Instruction No. 5 on the ground that it is long, repetitious or argumentative. In view of the uncertainty of plaintiff’s proof on the elements of causation and injury it was altogether proper to give Instruction No. 5, cautioning the jury against resorting to surmise, guesswork and speculation.

The judgment is affirmed.

COIL, C., not participating.

HOLMAN, C., concurs.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Judge.

text:
    STATE of Missouri ex rel. Clifford MORTON and Lulubelie Morton, Relators, v. Honorable Emery W. ALLISON, Judge of the 25th Judicial Circuit of Missouri, Respondent.
    No. 49632.
    Supreme Court of Missouri, In Banc.
    March 11, 1963.

      Weldon W. Moore, Rolla, for relators.
    Robert L. Hyder, Bruce A. Ring, Jefferson City, for respondent.
   EAGER, Judge.

This is a proceeding in prohibition initiated in the Springfield Court of Appeals; a preliminary rule was there issued and later made absolute. The opinion appears at Mo.App., 357 S.W.2d 733. We ordered the case transferred here primarily because it involved an interpretation of our Rule 86.06, V.A.M.R., concerning condemnation proceedings. Once it is here, we consider the case as if it had originated in this court.

The facts are very adequately stated in the opinion of the Court of Appeals, and we shall not need to relate them again in detail. On April 3, 1961, the State Highway Commission instituted a condemnation proceeding for the acquiring of certain land for right of way and to establish the limitation of access along approximately seven miles of new Highway No. 63 in Texas County. We are only concerned with land owned by relators Morton and located in the town of Houston, apparently at the very south end of the stretch. After the Commissioners had filed their report assessing the damages, and on or about May 15, 1961, the Commission elected to and did timely file its written abandonment of the proceeding as to relators’ land, as permitted under § 523.040 RSMo 1959 and Rule 86.06. There is no showing and no fair inference on this record that the proceeding was thus abandoned because of the amount of the award. On August 10, 1961, the Commission filed a new suit describing the land to be appropriated by a different description. Relators thereupon filed their motion to dismiss the second suit, alleging that “the land and the abutters’ right of direct access shown * * * is a part of the lands sought to be condemned” previously, and that the institution of the second suit constituted a violation of Rule 86.06. The trial court overruled the motion and indicated that it would proceed; this action followed.

By way of clarification at this point, Rule 86.06 of our Rules of Civil Procedure, promulgated in an effort to supply deficiencies and generally to clarify condemnation procedures, provides in part as follows: “If such appropriation be so abandoned as to any property, proceedings for the condemnation of the same property shall not be instituted again within two years after such abandonment.”

It has been the Commission’s basic position throughout this proceeding that the description in the first condemnation petition was so wholly erroneous and impossible of application, even by a surveyor, as to be void; that the court thus acquired no jurisdiction in the first suit and that Rule 86.06 is inapplicable. It further says that in large part this was due to the erroneous location of a quarter quarter section corner used as a fixed monument, which error (as applied with the stated distances) altered the location of the right of way lines and the location of the property desired; also, that not even a surveyor could locate any property from the description given in the first suit, there being no correct, fixed monuments; and that the center lines shown on the plan as filed were merely survey lines, dependent upon fixed and true monuments, so that even the filed plan did not and could not support a description. In Sassman v. State Highway Commission, Mo.App., 45 S.W.2d 1093, as pointed out by the Court of Appeals, it was held that proceedings which describe other and different land from that actually taken are a nullity in so far as concerns the owner’s rights in the land so taken. Judge Ruark, with considerable effort and sagacity, determined that this description (in the first case) though not good, could be located when considered with the plan on file, and that it vested the Court with jurisdiction. We defer to his conclusion, knowledgeable as he is in the sometimes devious realms ■of real estate descriptions. The writer feels certain that he could add nothing to the storehouse of legal knowledge by reviewing this conclusion, nor is it imperative that we do so, in view of our ultimate decision. At this point, however, we emphasize with approval the following statements of Judge Ruark: “We think the statute . and the rule contemplate that the condemnor shall describe the land and rights sought with such particularity that the owner can, without too much difficulty, ascertain exactly what is being taken. * * * A description which relies upon highway stations alone, although, in most instances, intelligible to a qualified surveyor with the highway plans in his hands, is incomprehensible to the average man, and too often to his attorney, and such has been the source of not infrequent complaint. We think it is not . asking too much to say that the owner’s lands should be described by metes and bounds referenced to congressional section corners, recorded plát, or fixed and readily ascertainable monuments.”

We thus conclude, as did the Court of Appeals, that the trial court acquired jurisdiction of the first suit.

In some instances, errors in description or a change in plan may be taken care of adequately by amendment, even after the report of the Commissioners has been filed. See, generally: State ex rel. State Highway Commission v. Deutschman, 346 Mo. 755, 142 S.W.2d 1025; Union Electric Co. v. Levin, Mo.App., 304 S.W.2d 478; City of St. Louis v. Senter Commission Co., 336 Mo. 1209, 84 S.W.2d 133. Amendments have thus been permitted to reduce the amount of property taken, to reduce the scope or extent of the easement condemned, or to reduce the damage or injury inflicted. And we agree with the Court of Appeals that, generally, amendments should be liberally allowed. But there seems little doubt that, after a report of Commissioners has been filed, amendments will generally not be permittéd which would include different or additional lands, which would substantially change the issues, or which would prejudice the rights of the opposing parties. See authorities cited in footnote 9 at 357 S.W.2d loc. cit. 738. We need not go into the reasons for all that; it will ’suffice to say that in such cases, the owners would not have received through the report of Commissioners and the payment of the award into court, even a presumed measure of compensation for the additional property taken or burdens so sought to be imposed. In this case, we need pursue no further the availability of the amendment procedure, for the Commission elected to, and did, abandon the original proceedings in toto as to this land. Any discussion here of its right to amend would be purely academic. Neither did it attempt by motion to have the report set aside, and to obtain an order reconvening the Commissioners to reconsider the matter upon the changed description, thus looking- to a new assessment; however, had it done so that procedure would have been ineffective, for there is no statutory authority for it. State ex rel. State Highway Commission v. McDowell, 236 Mo.App. 304, 152 S.W.2d 223. The only recourse (aside from abandonment) is a reassessment by a jury upon exceptions duly filed, either on the same description or perhaps on one amended within the limit and scope indicated by our cases. We find no reason here to re-examine the McDowell case, supra.

The second suit here did not involve any substantial change of plan for the improvement generally, as found in City of St. Louis v. Franklin Bank, 351 Mo. 688, 173 S.W.2d 837. In our case there was simply an error, or a combination of errors, in describing the tract of Relators which the condemnor wished to take in accordance with its one and only established plan. Under these circumstances, there could be no justification for a new suit upon the theory of a change in plan.

We thus end up in the same position as did the Court of Appeals, i. e., what is the effect of Rule 86.06 in this situation? It was very obviously enacted primarily to prevent the harassment of property owners by a condemnor who might choose to seek successive awards until, perchance, it might get one which it considered favorable. Such a practice is not to be countenanced. The amount of the award of the Commissioners here is not even shown, and there is nothing to indicate that the first proceeding was abandoned because the award was deemed excessive. It is true, as stated by the Court of Appeals, that a property owner may also be harassed by “mistakes or incompetence” of the condemnor. The first and primary element to be considered is the question of good faith, namely, whether the Commission acted in complete good faith merely to correct an honest error in its initial description. There is nothing in our record to indicate that it did not, although the parties have not brought here the evidence which was supposedly introduced at the hearing on the motion to dismiss the second suit. We gather that this consisted merely of matters of record. On the question of good faith, generally, in instances of abandonment, see Rogers v. City of St. Charles, 3 Mo.App. 41, and Center School Dist. No. 58 of Jackson County v. Kenton, Mo., 345 S.W.2d 120, although in neither case was Rule 86.06 or any similar principle or rule of law directly involved. A rule such as this should be construed so as to effect the object sought to be accomplished, but not so as to work unreasonable hardship when the circumstances are not within its real objective. We conclude that the question of good faith is controlling here, where the abandonment and reinstitution of suit have purportedly been effected in order to correct honest errors.

We also note the following: if, as determined by Judge Ruark, a tract could be located from the first description, it would have been a tract almost wholly different from the one encompassed by the second, and supposedly correct, description. The real mistake in the first suit seems to have been a failure to describe the tract which the Commission actually wanted and which it was attempting to take, assuming, as we have, that the description did describe some property. The net result of all this was that the second description included, as a very minor fraction, a part of the property included in the first description. We would perhaps be justified in holding the Rule to be inapplicable here for the reason that the two suits did not involve the “same property,” and we do rely upon this as an additional reason. While the rule may not contemplate that the tracts in the two cases need be in all respects identical, we believe that ordinarily they should comprise substantially the same property ⅛ order to come within its prohibition.

The rule in prohibition is hereby discharged. The trial court is directed that it shall, in the pending condemnation case {No. 7432), upon motion of a party or upon its own motion or order to show cause, consider and find whether or not the erroneous description and consequent abandonment of the first suit, and the institution of the second suit, were: (1) in fact caused by good faith errors and mistakes on the part of the condemnor; or (2) with any purpose or intent to harass Relators or to procure a more favorable assessment; and further, if its finding shall be as in (1) above, to permit the second suit to proceed in normal course, otherwise to dismiss it. We note that the period of time already elapsed has almost made this matter moot, but the question should be ruled, and it is a live issue at this time.

The rule in prohibition is discharged, with directions to the Circuit Court of Texas County, as aforesaid.

All concur.