text:
    George RODGERS, Appellant, v. SEIDLITZ PAINT AND VARNISH COMPANY, a Missouri corporation, and Conchemco, Incorporated, a Missouri corporation, Respondents.
    No. 51386.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.
    Motion for Rehearing and to Modify Judgment Denied July 11, 1966.

      Fain & Rea, Charles J. Fain, Peter H. Rea, Branson, William L. Mason, Jr., Galena, for appellant.
    Theodore C. Beckett, Hudson Lee McGuire, Jr., Kansas City, Brewer & Myers, Kansas City, for respondents.
   EAGER, Presiding Judge.

Plaintiff, George Rodgers, sued to recover commissions which he claimed were due to him with interest, for services rendered to defendants from November 1, 1958, to April 1, 1962, when his employment terminated. The jury found in his favor for the full amount of such commissions $17,663.22, but disregarded the question of interest. Upon after-trial motion of defendants the trial court set aside the judgment and entered judgment for the defendants “for the reason that, under the law and the evidence, plaintiff is equitably estopped from asserting his claim.” It appears that “Conchemco, Inc.” was the product of a change of name upon merger of Seidlitz with others, that a division is still operated as Seidlitz Paint and Varnish Company, and that the defendants are, in fact, “one and the same company,” as stipulated. We shall, for convenience, refer- to defendant in the singular, or perhaps to “Seidlitz,” although the judgment is actually for the “defendants.” The petition originally consisted of two counts but the second count was dismissed. It will not be necessary to digest the pleadings; plaintiff was permitted to file and did file, after verdict, an amended petition to conform to the evidence. Defendant denied all of plaintiff’s substantive allegations, and pleaded accord and satisfaction and that plaintiff was estopped by the knowing acceptance of compensation under and upon a changed basis. The only real issue here is whether a submissible case was made by plaintiff, or whether the court was correct in deciding that there was an estoppel as a matter of law.

As of December 1, 1952, plaintiff was employed by defendant as Manager of a so-called “Industrial Finishes Division,” which, in fact, he was to create. The terms of his compensation, as expressed in a letter from defendant, were: an annual salary of $12,000, the sum of $3,000 per year for expenses in the Kansas City Metropolitan Area (with some inference that this could be drawn regardless of his actual expenses), his actual expenses elsewhere, and a commission of 3% “on all sales credited to the Industrial Finishes Division in excess of $250,000 annually.” At that time the fiscal year ran from December 1 through November 30; it was later changed so as to run from November 1 through October 31. Plaintiff had been for a number of years an officer of a corporation engaged in that particular type of work in the Chicago area. His contacts in effecting this employment were with Mr. G. R. Seidlitz, Vice President and General Manager, who was generally known as “Dick” Seidlitz. Plaintiff immediately began his work in Kansas City, established a laboratory, gradually built up a sales force, and actively solicited the trade himself. Actually, he started from “scratch,” with a new line of products. For several years the results were somewhat disappointing; for instance, in the fiscal year ending in 1957 total sales were $139,-880.03, and in 1958, $230,322.25. The fiscal year ending in 1959 was the first one in which total sales exceeded $250,000; they were then $274,908. In 1960 they were $316,073 (for eleven months of the changed fiscal year); in 1961, $576,967, and for five months to April 1, 1962 (the end of plaintiff’s duties as Manager) $274,991. At no time was plaintiff paid a 3% commission.

In November, 1957, defendant circulated a memorandum dealing with the attitude of the Internal Revenue Department on ex-. pense accounts. For this, and perhaps other reasons, plaintiff had an interview with Mr. G. R. Seidlitz (about whose authority there is no question) in December, 1957, probably about December 18. Much controversy has arisen over the substance and result of that interview. Plaintiff testified that he asked Mr. Seidlitz to change the $3,000 allowance for Kansas City expenses to straight salary, and that Seidlitz agreed; he further testified that they did not discuss the 3% commission on any question of a bonus; that thereafter he reported his actual expenses in the Kansas City area and elsewhere and received payments therefor. Mr. Seidlitz testified by deposition: that plaintiff originally suggested the $3,000 expense allowance; that in December, 1957, they had the preliminary figures of plaintiffs division for the fiscal year, that the sales had risen, but rather slowly, and that he and plaintiff discussed “the desirability of placing him on a compensation basis exactly the same as * * all other executives”; that his salary base was changed to $15,000, his actual expenses were to be paid and he was “placed upon our key employee bonus arrangement” starting in fiscal 1958; that the bonus terms were discussed; that plaintiff assented to the new arrangement, and that it went into effect as of December 1, 1957. While we do not find that Mr. Seidlitz specifically testified that the 3% commission was eliminated at that conference and in the new arrangement, such is the almost necessary inference from his testimony. Thus, the factual controversy arises, plaintiff insisting that he was still entitled to the 3% commission when earned, and defendant insisting that it was wholly eliminated by the December, 1957, arrangement.

Beginning as of December 1, 1957, plaintiff received regularly the installments of a $15,000 salary, plus all his actual expenses. No bonuses were paid for the fiscal year 1958, nor would plaintiff have been entitled to any commission on sales; shortly after the end of fiscal 1959 he was sent a check for $750, with a form letter presumably indicating that this was a bonus; he accepted the check and his explanation at the trial was that the amount was substantially the same as the commission to which he was entitled ($747.24) and that he accepted it as such. Following the 1960 fiscal year (ending October 31, 1960), he was sent a bonus of $750 and accepted it; a 3% commission for that year would have been $1,982.19. Plaintiff’s explanation for the acceptance of that check was that “we were very busy. Seidlitz was merging at the time, going into these things, and I thought I was being considered for a top job in the corporate structure, and I thought that this time was a very poor time to start rocking the boat, and that was why I did not make a demand at that time.” Subsequently, and entirely inconsistently, plaintiff testified that he did not get a bonus for 1960, but plaintiff’s brief concedes the payment of a 1960 bonus in the amount of $750. Following the 1961 fiscal year plaintiff received a bonus check for $1,500, which he accepted; a 3% commission would have been $9,809.01.

It is most difficult to tell from plaintiff’s testimony just when he made any complaint concerning his compensation or any demand for commissions. The only formal demand he made was apparently on June 30, 1962, about three months after he was “fired,” and on that date his compensation ceased. Defendant had continued to pay his compensation for three months after he was relieved of his duties in order to give him an opportunity to find other employment. Although much was made of the “date of the demand,” we are not so much concerned with that matter as we are with ascertaining when plaintiff first made complaint of the new arrangement for compensation. At some time prior to March, 1962, plaintiff was “angry” and went to “Dick” Seidlitz’s office and talked with him; his testimony indicates that he then discussed the 3% commission matter and his failure to receive commissions, also the “money” problems generally, and the “unsatisfactory relations” due to the fact that he had not been paid; he also stated that he told Mr. Seid-litz that he was doubtful whether he wished to remain with the company. No understanding was arrived at, and he did not quit the employment at that time. He testified that he “felt” that this conversation was the primary reason he was fired, but the evidence indicates that the attitude of some of the affiliated company officials in Baltimore also entered into the termination. No complaint was shown to have been made of plaintiff’s work at any time. In March, 1962, and probably around the first of March, “Dick” Seidlitz called plaintiff in, told him that “there was dissatisfaction in Baltimore” concerning him (Baltimore being the location of one of the affiliates) and that he was forced to let plaintiff go. His duties ceased as of April 1. Mr. Seid-litz thereafter wrote four letters of recommendation for plaintiff to other companies in the same line of business; he testified that plaintiff had never made any demand for the 3% commission.

The treasurer of defendant testified that after the December, 1957, conference, plaintiff was placed on the “key employee bonus list,” and that he discussed the new system of compensation with plaintiff. The President testified that he had, on one or two occasions after the end of the fiscal year, discussed compensation with plaintiff, as with the other executives, and that the 3% commission matter was not “brought to my attention.” The Treasurer of the Seidlitz Division of Defendant produced exhibits purporting to show what plaintiff would have received from the beginning of fiscal 1958 to the time of his termination, had he been paid in accordance with the original 1952 agreement, along with a compilation of the payments actually made to him. One, Defendant’s Exhibit 17, showed that he had actually received $95,460.42 for this period, whereas a continuation of his 1952 contract (with the 3% commission in lieu of bonus) would have called for $95,503.07. From Exhibit 13 the witness calculated that plaintiff had been overpaid $4,749.13 by comparison with his 1952 contract. We do not consider these as controlling or particularly persuasive, for they are based upon the continuation of a $12,000 annual salary, whereas plaintiff and defendant agree that the salary was raised to $15,000; plaintiff contends (and therein lies the controversy) that this raise was granted in addition to the continuation of the 3% commission provision, which defendant denies. Apparently, these exhibits were offered on the theory of an accord and satisfaction. The trial court did not decide the case on that theory, and it has not been briefed here on that theory. The testimony of the treasurer also left in some doubt the amounts actually due and paid to plaintiff prior to December, 1957 for his Kansas City expenses, on which he was apparently entitled to an arbitrary amount of $3,000, if he chose to draw it. These exhibits, compiled from the records, do show bonus payments of $750, $750 and $1,500 for the years 1959, 1960 and 1961. Those items are material for another reason.

At the time the court entered judgment for defendant, it also overruled defendant’s alternative motion for a new trial. There was no appeal by defendant, and thus no question of specific error is involved. The question of estoppel was submitted to the jury in an instruction offered by defendant, in which the essential submission was (1) that plaintiff knew that for 1959, 1960, 1961, and until his termination in 1962, he would have been entitled to commissions under his original agreement; (2) that defendant believed that the commission agreement had been rescinded; (3) that plaintiff knew that defendant was paying a salary and bonus upon that belief; (4) that plaintiff remained silent about his claim for commissions; and that, if the jury so found, its verdict must be for the defendant. Obviously, the jury did not find these issues for the defendant and our problem, as already indicated, is whether or not there was any such submissible issue.

No cases on like or similar facts are cited by either party. It is defendant’s position that plaintiff was guilty of an “estoppel by misrepresentation” or is chargeable with “quasi estoppel.” As stated, in Emery v. Brown Shoe Co., Mo., 287 S.W.2d 761, at loc. cit. 766-767: “ ‘To constitute estoppel in pais, three things must occur: First, an admission, statement, or act inconsistent with the claim afterwards asserted and sued on; second, action by the other party on the faith of such admission, statement, or act; and, third, injury to such other party, resulting from allowing the first party to contradict or repudiate such admission, statement, or act.’ State ex inf. Shartel ex rel. City of Sikeston v. Missouri Utilities Co., 331 Mo. 337, 53 S.W.2d 394, 399 (9-11), 89 A.L.R. 607; Brown v. Brown, 347 Mo. 45, 146 S.W.2d 553, 554; Prouse v. Schmidt, Mo.Sup., 156 S.W.2d 919, 921; Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223, 226.” As further stated in the same opinion, estoppel is a condition in which “ ‘ “ * * * justice forbids that one speak the truth in his own behalf.” ’ ” Again, the doctrine has been somewhat more fully defined in the case of Mills v. Taylor, Mo., 270 S.W.2d 724 at loc. cit. 729, where the court said: “““To constitute * * * an estoppel, the following elements are essential: “(1) There must be conduct, acts, language, or silence amounting to a representation or a concealment of material facts. (2) These facts must be known to the party estopped at the time of his said conduct, or, at least, the circumstances must be such that knowledge of them is necessarily imputed to him. (3) The truth concerning these facts must be unknown to the other party claiming the benefit of the es-toppel at the time when such conduct was done, and at the time when it was acted upon by him. (4) The conduct must be done with the intention, or, at least, with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. (5) The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it. (6) He must in fact act upon it in such a manner as to change his position for the worse.” ’ ” ’ ”

There is no doubt here that plaintiff accepted compensation on the altered basis from December 1, 1957, to the time his employment terminated. His acts in doing so, at least after he had knowledge or the means of knowledge of the change, may be considered as representations. The first vital question which arises is that of his knowledge that he was being paid an increased salary and a bonus in lieu of the 3% commissions; the next is defendant’s understanding that the commissions had been eliminated, and its reliance thereon; the third question is that of defendant’s injury by reliance upon plaintiff’s acceptance of the compensation. In all these we consider whether any fact question remained for the jury.

We accept plaintiff’s explanation that in 1959 the amount of his check was so close to a 3% commission that he did not realize that it was not being paid as a commission. (When we mention the year, we refer to the end of that fiscal year.) In 1960 his check was $750, whereas his commission would have been $1,982.19. As to that, he testified specifically that he did not want to "rock the boat” at that time, as a merger was pending and he thought he was being considered for a “top job,” and that he refrained from making any demand. Nothing could show more definitely that he then realized that he was not receiving the 3% commissions; he had available all the sales records of his department and knew precisely what a 3% commission would have been. The knowledge which plaintiff thus acquired was sufficient also to charge him then with retroactive notice of the actual situation as of the end of 1959, i. e., that the check for that year was actually a bonus and not commissions. The necessary construction of plaintiff’s testimony is that he determined in 1960 to accept the bonus and pass up his claim for commissions, assuming the truth of his statement that he thought in December, 1957, that commissions had not been eliminated. No complaint was made during the next fiscal year, 1961. When the figures were compiled, presumably by the end of the calendar year, he was paid a bonus of $1,500, whereas the commissions would have been $9,809.11. He accepted that check, but it seems clear that then, for the first time, he really became exercised, considered leaving the company, and finally (at some time before March, 1962) talked to Mr. Seidlitz and made a complaint. We thus see that plaintiff, with actual knowledge of the fact that he was not being paid commissions, accepted the changed compensation for a period of at least a year and two or three months, and that he was chargeable with that knowledge for an additional year. We recognize that plaintiff testified at one place that the first time he realized that he was not being paid commissions was at the end of 1961, but that rather casual statement cannot be accepted as counteracting or destroying his specific explanation of his reasons, actions and knowledge in connection with the 1960 bonus. The payment of these bonuses was shown by documentary proof (defendant’s Exhibits 13 and 17), and it is conceded in plaintiff’s brief.

Counsel question the testimony of defendant concerning its understanding that the 3% commissions had been eliminated, and its reliance thereon. The necessary inference from the testimony of Mr. G. R. Seidlitz was that a bonus was substituted for the commissions, by agreement, in his December, 1957, conversation with plaintiff. But we do not rely upon that testimony, since it was oral; the treasurer was immediately notified and all further checks to plaintiff for a period of more than four years were issued on the altered basis, and without any objection until the very end of the period. In Swihart v. Missouri Farmers Mutual Tornado, etc., Co., 234 Mo.App. 998, 138 S.W.2d 9, in discussing a question of waiver (and equally applicable to estoppel), the court said, loc. cit. 17: “ ‘ * * * A waiver may even take place in consequence of laches merely or in consequence of acting inconsistently with the idea of insisting upon the right which is waived, and may he shown by conduct as well as by express words. [Citing cases]. Waiver is often closely related to estoppel, but evidence that fails to show estoppel may show waiver. [Citing cases]. Waiver is ordinarily a question of fact, and depends largely upon the intention of the party. That intention, however, is not the secret intention of the party, but is the intention which is manifested by his conduct or his words in relation to the matter involved. [Citing cases].’ ” And see, for an approval of that holding, Pasley v. Marshall, Mo.App., 305 S.W.2d 879, 883, which, incidentally, involved a waiver by a guardian of his claim to commissions. The actions of defendant here in making new and different payments over a period of more than four years speak more loudly of its understanding than any oral testimony could do. No doubt could remain that defendant did understand that the right to commissions had been eliminated and further, that it relied upon its belief of that fact.

Next we consider whether defendant suffered any detriment or injury on account of plaintiff’s conduct. This will require little discussion. It did pay him a specific salary increase of $3,000 per year for a period of more than four years, in lieu of a loosely stated and ambiguous “expense allowance” of $3,000, against which the record shows withdrawals were made of $448.24, $921.05, $2,588.93, $3,000 and $1,250. Following the salary increase, plaintiff still received reimbursement for all actual expenses. In addition, defendant admittedly paid to plaintiff bonuses of $750, $750, and $1,500, all of which he accepted and disposed of, which he has not tendered back, and for which he has offered no credit, even in this suit. It seems entirely clear that if plaintiff is now allowed to enforce his judgment for the full commissions, $17,662.22, in addition to what he had been paid, defendant will have suffered a rather substantial detriment.

Plaintiff insists here that there were jury issues on the question of estoppel, that the jury’s verdict was against defendant, and that it is conclusively bound. Es-toppel was submitted, and the jury did find for plaintiff. We do not pass upon the manner of the submission, for no question of specific error is here. It is true that in such a situation the court looks to the evidence favorable to plaintiff and disregards defendant’s evidence, except such as may be favorable to plaintiff and not in conflict with his fundamental theory of recovery. Fenneren v. Smith, Mo., 316 S.W.2d 602; Peterson v. Tiona, Mo., 292 S.W.2d 581. So considered, plaintiff says that the terms of the 1957 agreement depended upon oral testimony and involved the credibility of defendant’s evidence; also, that estoppel is an affirmative defense, and that the burden of “persuasion” was on defendant. Answering the last suggestion first, we are not concerned with the burden of “persuasion,” but only as to whether on all the evidence to which plaintiff is entitled, the issue was one of law or fact. It has frequently been held that a verdict may not be directed in favor of one who has the burden of proof where his evidence is oral, for the jury is entitled to disbelieve that evidence. M.F.A. Co-Op Ass’n of Mansfield v. Murray, Mo.App., 365 S.W.2d 279; State ex rel. and to Use of Hickory County v. Davis, Mo., 302 S.W.2d 892; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558; Robbins v. Robbins, Mo., 328 S.W.2d 552. Thus, we may not consider defendant’s oral testimony here in support of its judgment, though it be uncon-tradicted; and we give full credence to plaintiff’s version of the December, 1957, conversation, namely, that there was no agreement to substitute a bonus for the commissions. Plaintiff specifically argues that the issue of estoppel depended upon oral testimony in that “ * * * the terms of that 1957 oral agreement depended on oral evidence, and whether plaintiff was or was not estopped by his acts or omissions depended on the oral evidence as to that oral agreement and on the oral evidence of the understanding the parties had of that oral agreement.” We have already stated that we give plaintiff the full benefit of his oral evidence concerning the agreement and his original understanding. We hold that the acts of defendant over a period of more than four years, as distinguished from any oral testimony, demonstrate its understanding of the agreement as a matter of law. The question of estoppel, from plaintiff’s standpoint, depends not upon what he thought the agreement was, but upon what he did and the effect of what he did, and on that the record speaks from decuments and from his admissions. He most certainly knew, or as a matter of law should have known, that he was being paid on a different “basis” at least as early as the end of 1960.

There are recognized exceptions to the rule forbidding the direction of a verdict for defendant where its affirmative defense rests upon oral testimony. In Coleman v. Jackson County, 349 Mo. 255, 160 S.W.2d 691, at loe. cit. 693, the court said: “There is, however, a well-recognized exception to the rule. If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is unimpeached and uncontradicted, the proponent will be entitled to a peremptory instruction.” This statement was quoted with approval in the recent case of Charles F. Curry Co. v. Hedrick, Mo., 378 S.W.2d 522, at loc. cit. 531. Plaintiff has admitted that, at least as early as the end of 1960, he knew the basis of his compensation had been changed. The facts establishing the other elements essential to estoppel were conceded except defendant’s understanding of the change and its reliance upon it; we hold that these elements were established inalterably by the payments it made for more than four years. We further hold that those payments established an injury to the defendant. We do not rely upon the theory that there was uncontradicted testimony or “no real dispute.” Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, 287.

The application of the principle of estoppel is said to be “more a question of law” than of fact. Fernandez v. Mutual Life Ins. Co. of Baltimore, 230 Mo.App. 857, 78 S.W.2d 526. Certainly this is true when the essential issues are admitted or shown by documentary evidence. We conclude that from the established facts only one reasonable inference can be drawn, namely, estoppel. Compare M & M Securities Co. v. General Motors Acceptance Corp., 230 Mo.App. 900, 79 S.W.2d 521, 531.

The situation here is very similar to that in those cases where a party seeks to accept the benefits of a contract, but to reject all or part of its burdens. It has frequently been held that one may not do so. St. Louis Public Service Co. v. City of St. Louis, Mo., 302 S.W.2d 875; City of St. Louis v. Davidson, 102 Mo. 149, 14 S.W. 825, 22 Am.St. Rep. 764; Magenheim v. Board of Education of School District of Riverview Gardens, Mo., 347 S.W.2d 409; Halloway v. Mountain Grove Creamery Co., 286 Mo. 489,228 S.W. 451; 31 C.J.S. Estoppel § 108. Indeed, the doctrine of estoppel is often applied in cases, of that type, St. Louis Public Service Company case, supra; and this theory of preclusion of recovery “ * * * is frequently called an estoppel.” id.

The motion of defendants for a directed verdict at the close of all the evidence specifically raised the issue of estoppel. We conclude that the trial court properly entered a judgment for defendants upon that ground.

The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Clyde Anthony THOMAS, Robyn Thomas, and Robert Thomas, Minors. William Dickie TAYLOR and Della Taylor. (Petitioners) Respondents, v. Clyde THOMAS, (Respondent) Appellant.
    No. 51693.
    Supreme Court of Missouri, Division No. 2.
    June 13, 1966.
    As Modified on Court’s Own Motion and Motion to Transfer to Court En Banc Denied July 11, 1966.
    No attorney for respondents.
    Frank Mashak, St. Louis, for appellant.
   HENRY J. WESTHUES, Special Commissioner.

William Dickie Taylor filed a petition in the Circuit Court of the City of St. Louis, Juvenile Division, asking for the adoption of three minor children, Clyde Anthony Thomas, Robyn Thomas, and Robert Thomas. The petitioner’s wife, Della, is the mother of the three minors and she filed her consent for the adoption in writing.

Clyde Thomas, respondent below, filed an answer asking that the court refuse the adoption of his child, Clyde Anthony Thomas. He denied that he was the father of Robyn and Robert. A guardian ad litem was appointed for the minors. After a hearing, the court denied adoption but ordered the names of the three minors to be changed from Thomas to Taylor. Clyde Thomas filed a motion asking that the portion of the decree changing the name of his child Clyde Anthony Thomas be deleted or, in the alternative, to grant him a new trial. He also asked that the order assessing a portion of the costs against him be set aside. These requests were denied and Clyde Thomas appealed to this Court.

The question of appellate jurisdiction immediately comes to mind. Clyde Thomas claims that this Court has jurisdiction because a constitutional question is involved. Note what is stated in his brief: “This case is within the exclusive appellate jurisdiction of the Supreme Court because the construction of the United States and Missouri Constitutions is directly involved because the trial court took away appellant’s name from his child — a natural right —without legal authority, raising a constitutional question never before adjudicated by this Court and a matter of public interest and importance in future .litigation, and because of the denial of fundamental rights guaranteed to him by the U. S. Constitution, Amendment Fourteen, Section One. (Constitution of Missouri, 1945, Article V, Section 3, 2 V.A.M.S.)”

The facts, as shown by the record, are as follows: Clyde Thomas and petitioner’s wife, Della Taylor, had been married but were divorced in February, 1962. While they lived together, the three minor children involved in this case were born. Clyde Thomas claimed Clyde Anthony Thomas was his child but that Robyn and Robert were not. Della Thomas Taylor admitted that to be so. The divorce decree granted custody of Clyde Anthony Thomas to the mother.

Petitioner William Dickie Taylor and Della Thomas, mother of the three minors, were married on April 15, 1963. At the time of trial, the three minors were in the custody of the petitioner and Della. It was in evidence that William Dickie Taylor, prior to his marriage to Della, had been living with a woman named Velma (Osborne) Taylor. They had four children. These children were in custody of their mother Velma who was receiving aid through the A.D.C. program.

Petitioner William Dickie Taylor testified that he was never married to Velma. There was substantial evidence that he was. It was admitted that no divorce was ever applied for or obtained by Velma or William Dickie Taylor.

The trial court entered a decree denying the adoption of the three children on the ground that the evidence did not definitely show that petitioner Taylor and Della were legally married. By its decree, the trial court did order that the three minors remain in • the custody of their mother and that their names be changed from Thomas to Taylor. It was stated in the decree that “the best interest of the three minor children would be served by the change of their names from Thomas to Taylor.”

We have examined cases cited by Clyde Thomas to support his claim that this Court has appellate jurisdiction on the ground that his constitutional rights have been violated by the court’s decree changing the name of his child. Among the cases cited are: In Re V, 306 S.W.2d 461; Commerce Trust Company v. Weed, 318 S.W.2d 289; Woodling v. Westport Hotel Operating Co., 331 Mo. 812, 55 S.W.2d 477; State ex rel. Toliver v. Board of Education, Mo., 230 S.W.2d 724, 1. c. 730 (8); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. The cases do not support the appellant’s contention. In certain circumstances, a child’s name may be changed by a court over the objection of a parent. See 65 C.J.S. Names § 11, pp. 19-23 and cases cited under Note 55 on p. 22; Kay v. Kay, Ohio Com.Pl., 112 N.E.2d 562, 1. c. 567 (10); Degerberg v. McCormick, Del.Ch., 187 A.2d 436, 1. c. 439, 440(2-4); Lazow v. Lazow, Fla., 147 So.2d 12,1. c. 14.

There is no constitutional question before us in this case. Whether or not the trial court was justified in ordering the name of Clyde Anthony Thomas to be changed to that of Taylor requires an examination of the record and a decision on the merits. We are not authorized to do so because we lack jurisdiction.

The cause should be and is hereby transferred to the St. Louis Court of Appeals. It is so ordered.

PER CURIAM:

The foregoing opinion of WESTHUES, Special Commissioner, is hereby adopted as the opinion of the Court.

All of the Judges concur.


author: TOWNSEND, Commissioner.

text:
    James E. BRACKEN, Plaintiff-Respondent, v. Robert R. KOCH, Defendant-Appellant.
    No. 32194.
    St. Louis Court of Appeals. Missouri.
    May 17, 1966.
    Motions for Rehearing or for Transfer to Supreme Court Denied June 14, 1966.

      Derrick & Holderle, St. Louis, for appellant.
    Gordon W. Neilson, Lawrence O. Will-brand, St. Louis, for respondent.
   TOWNSEND, Commissioner.

Action for damages for injuries to person and property resulting from an automobile collision. Verdict and judgment for plaintiff in the sum of $1500.00, from which defendant appeals.

The collision occurred at the intersection of Grand and Koeln Avenues in the City of St. Louis at about 7 o’clock in the evening, January 25, 1963. Grand Avenue at this intersection runs in a general north-and-south direction and Koeln Avenue runs east and west. There were no regulatory traffic signals or signs at the intersection; the speed limit on each street was 30 miles per hour. The day was cold and there was snow on the ground, but the traffic lanes on Grand Avenue were clear. Plaintiff was traveling south on Grand Avenue in the inside south-bound lane. He was traveling at about twenty-five miles an hour a half block north of the intersection, but as he approached it he slowed down his car. When plaintiff’s car was ten feet north of .the north curb line of Koeln he observed the condition of Koeln and states that the condition was similar to that of Grand Avenue and that there was nothing to obscure his vision. He looked to his left on Koeln and saw no cars of any kind; as he came somewhat closer to the intersection he looked to his right. His view to the right was unobstructed and he could see about one hundred feet in that direction. He saw no cars approaching on the right. Then entering the intersection at 15 to 20 miles per hour he states that he looked straight ahead “and then I looked back up to the right again, and by then I was fully into the intersection and I saw these lights of this automobile approaching me, I would say 15, 20 feet away.” He saw no headlights at any time prior thereto. When he saw the lights of the Koch car the front of his car was about the middle of the intersection. At the moment of impact he was “just about through the intersection”. Upon cross-examination plaintiff stated that although he was looking straight ahead after entering the intersection he could still see to the side or out of the corner of his eye and that he didn’t see defendant’s automobile until it was within 15 feet of his car. He then glanced to the right when he saw the lights of defendant’s car. Otherwise he looked “up west on Koeln” only the one time previously mentioned when his car was 10 feet away from the intersection. Plaintiff’s two-door car was struck on the right side at the door. The impact knocked plaintiff’s car over to the left side of the street, where it struck a concrete light post on Grand Avenue. The lamp post was located 15 to 20 feet off of Koeln Avenue. Plaintiff estimated that defendant’s speed was about 25 miles per hour as defendant entered the intersection.

Defendant moved for a directed verdict at the close of plaintiff’j case and again at the close of all the evidence. On this appeal, defendant’s attack is directed principally at the alleged contributory negligence of plaintiff, a matter appropriately preserved by defendant’s motion to set aside the judgment or to grant plaintiff a new trial. Defendant contends that the evidence clearly showed that plaintiff was negligent as a matter of law in failing to keep a proper lookout ahead and laterally as he entered the intersection.

No exercise in semantics can hide the fact that, absent some statutory fiat, the determination of whether a person has conformed to a prescribed standard of care rests in the opinion of the organ making the determination, whether we denominate the matter a question of fact or a question of law. There are no mechanical tests by which to solve the problem. Our system of law ordains this division of labor: Whether or not a litigant# has been guilty of negligence is a question for the jury to answer, unless, upon the basis of undisputed or clearly preponderant evidence, reasonable men could not differ. Cohagan v. Laclede Steel Co., Mo., 317 S.W.2d 452; Ely v. Parsons, Mo.App., 399 S.W.2d 613; Walker v. East St. Louis & S. Ry., 8 Cir., 25 F.2d 579. In considering defendant’s assignment that plaintiff was guilty of contributory negligence as a matter of law, we proceed then to examine the evidence to see whether it is so commanding that it could lead reasonable persons only to that conclusion which defendant asserts, even if it is all viewed in the light most favorable to plaintiff.

A brief excursion into arithmetic will be of aid.

At the intersection Grand Avenue is 50 feet wide and Koeln is from 30 to 35 feet in width. Plaintiff looked to the right when he was 10 feet north of the north curb line of Koeln; he then proceeded straight ahead at 15 to 20 miles per hour without a further look to the right. When the front of his car was at the middle of the intersection which would have put it about 18 feet south of the north curb line of Koeln he saw the lights of defendant’s car 10 to 15 feet away. This would have put defendant’s car at the west curb line of Grand. Hence plaintiff would have proceeded about 28 feet before seeing defendant’s car. If defendant’s car had been just outside the range of plaintiff’s vision, namely, 100 feet, at the time that plaintiff looked to the right, that would mean that defendant’s car had advanced at least 100 feet while plaintiff’s car was traveling 28 feet. Defendant then traveled almost four times as far as did plaintiff after plaintiff took his look to the right. In the course of plaintiff traveling in distance of 28 feet, he proceeded at 15 to 20 miles per hour. If in the same period of time defendant traveled 100 feet then he must have proceeded at a rate somewhere between 53 and 71 miles per hour. There is no evidence that defendant traveled at more than 25 miles per hour after he entered upon Koeln Avenue and plaintiff estimated defendant’s speed at that rate. The conclusion is inescapable that when plaintiff took his look to the right up Koeln Avenue the defendant’s car was somewhere within plaintiff’s range of vision. Reasonable men could not differ from a finding that at such time defendant was moving in the direction of Grand Avenue in plain view.

The statutory command that every motorist on the highways shall exercise the highest degree of care (Section 304.010, RSMo 1959, V.A.M.S) has as a necessary complement the proposition that a motorist rests under the duty of maintaining a careful and vigilant lookout ahead and laterally ahead. Weis v. Melvin, Mo., 219 S.W.2d 310. The latter duty is not negatived by those rules of the road dealing with priorities at intersections, e. g., first entry upon the intersection and the right and left positions of vehicles. Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575 (and see Creech v. Blackwell, Mo., 298 S.W.2d 394, at p. 400); Major v. Davenport, Mo.App., 306 S.W.2d 626.

In the instant case plaintiff testified that his eyesight was good and that his view up Koeln Avenue was not obstructed. Nevertheless he states that he did not see defendant’s car.

“The law is further well settled that ‘a failure on the part of a plaintiff, where a duty to look exists, to see what is plainly visible when he looks, constitutes contributory negligence as a matter of law.’ ” State ex rel. Kansas City Southern Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915.

In ' two successive intersection collision cases, this Court passed upon the question of contributory negligence where the plaintiff either did not maintain a vigilant lookout or failed to see the approach of another vehicle well within plaintiff’s range of vision. In Roux v. Pettus, Mo.App., 293 S.W.2d 144, plaintiff took a look to the right when 32 feet from the intersection and saw no approaching car. In Major v. Davenport, Mo.App., 306 S.W.2d 626, plaintiff looked to the right at some undetermined distance from the intersection (probably less than a block) and saw no approaching vehicle. Thereafter plaintiff in each case proceeded without a further look to the right, entered the intersection and was struck on the right side by the front of defendant’s vehicle. In the Roux case, this Court stated:

“Under the authorities, we are compelled to hold that plaintiff was guilty of contributory negligence as a matter of law. When plaintiff reached a point 32 feet south of Oak Street he looked to the east for traffic approaching from that direction. At that point he could see as far as School Street, a distance of 320 feet. Defendant’s car at that time must have been somewhere between School Street and Grant Street [on which plaintiff was traveling]. Yet plaintiff says he did not see it. He failed to see what was plainly visible to him. This was negligence on his part. Thereafter, plaintiff moved forward and almost across the intersection without again looking to his right until an instant- before the vehicles collided. A failure on the part of a plaintiff, where a duty to look exists, to see what is plainly visible, constitutes negligence as a matter of law.”

Similarly it was stated in Major v. Davenport, supra, that “Plaintiff, as she approached the intersection, was under a duty to watch for traffic approaching from the south and to see what was plainly visible. Failure to do so constituted negligence as a matter of law. * * * Whether she failed to look at a time when it would have been possible to look effectively, or negligently failed to observe defendant’s truck approaching, is not quite clear from the evidence. In either event, plaintiff’s conduct was negligent.”

To the same effect is the case of Douglas v. Whitledge, 302 S.W.2d 294, in the Springfield Court of Appeals. In another passage the latter Court dealt with the failure to see in the following manner: “Whether plaintiff’s brother actually saw defendant’s pickup before proceeding into the intersection is not material to proper determination of this appeal. For, where there is a duty to look, the driver of a motor vehicle is as negligent in failing to see that which could have been seen in the exercise of due care as in failing to look at all * * * and the failure to see what is plainly visible constitutes negligence as a matter of law.” James v. Berry, Mo.App., 301 S.W.2d 530.

Accordingly it must be held that under the evidence adduced in this case plaintiff was guilty of negligence.

But to find that the plaintiff was guilty of negligence as a matter of law is not to conclude the matter of contributory negligence. The problem of causation still remains. The very words — contributory negligence — connote that a plaintiff’s negligence caused or contributed to cause his own injury.

Whether the question is one of submissible case based on negligence or one of a defence based upon contributory negligence, the burden rests upon the proponent to show the relationship between the negligence and the injury suffered. Deviation by a defendant from the prescribed standard of care does not alone make out a case for a plaintiff; nor does a plaintiff⅛ failure to conform to that standard alone establish a defence for a defendant. To accomplish either result the causal connection must he shown. The proposition is- so obvious that it is not necessary to pile precedent upon precedent to demonstrate its truth. Solely for purposes of illustration we cite cases dealing with the duty to maintain a vigilant lookout. In Thaller v. Skinner and Kennedy Co., Mo.App., 307 S.W.2d 734, it was held that the trial court erred in not sustaining defendant’s motion for a directed verdict; the Court stated that at a certain point defendant’s driver should, by keeping a careful lookout, have seen plaintiff in apparent danger. “But that fact alone was not sufficient to make a case. It was incumbent upon plaintiff to also show that defendant’s driver had the ability thereafter to avoid the collision. Otherwise, there was no showing of proximate cause * * It was observed that there was no evidence concerning the distance it would take to stop defendant’s truck under the existing conditions, p.nd so, “In the absence of such evidence, there was no proof that the proximate cause of plaintiff’s injuries was the truck driver’s failure to keep a lookout and to stop his truck.”

In Janicke v. Hough, Mo.App., 400 S.W.2d 645, where contributory negligence was relied on, the Court deemed it important to determine whether the record afforded any evidence that the colliding automobiles became inter-visible in time for either to have stopped or otherwise to have avoided the collision. An instruction permitted the jury to find plaintiff negligent for failure to keep a careful lookout. The Court said: “We find no evidence * * * upon which it could be ruled that failure to keep a careful lookout was a causal factor of the collision. * * * We conclude that it was error to include the issue of lookout in defendant’s instruction on contributory negligence.”

The record in the present case is barren of any evidence that by maintaining the proper lookout plaintiff could have avoided the collision. There is no evidence as to the distance within which he could have stopped his car if he had seen the defendant at the time when the law charges him with such a sight. There is no evidence as to any manner in which he could have otherwise avoided the collision under the existing conditions. Hence, to repeat what was said in Janicke v. Hough, supra, “We find no evidence * * * upon which it could be ruled that failure to keep a careful lookout was a causal factor of the collision.”

The second point made by appellant was that the Court erred in receiving in evidence over appellant’s objections the records of St. Louis City Hospital pertaining to respondent’s admission and injuries. Subpoena was issued to the medical record librarian of St. Louis City Hospital who did not appear; instead she sent Mrs. Sid Hampel with records relating to respondent. Mrs. Hampel testified that the records were under her supervision- and control and that the record librarian “sends me on these trips” because “she doesn’t have the time”. Asked how often she had come into court “like this”, she responded: “Thousands of times”.

After several general objections by defendant’s counsel on the ground that the records were not admissible under the Business Records Act, an objection that went principally to the qualifications of the witness, had been overruled, the Court overruled objections to specific items in the respondent’s file, namely, the emergency and admitting record and an X-ray. The court then addressed counsel: “Why don’t you have this introduced in evidence, show him what you want to read and read it yourself to the jury and let him make any objections he wants to make to any portion you want to read?” Plaintiff’s counsel: “We are going to offer these into evidence.” Defendant’s counsel: “I made objections to them already.” The Court: “Objection overruled. They will be received as far as the authenticity is concerned, and I will permit the defendant to make any specific objections to any particular portions that he attempts to read or give to the jury.” After cross-examination of the witness by defendant’s counsel, the latter said: “I just want to renew my objection to be sure I have got a foundation laid.” The Court: “Objection overruled. They will be received, subject to the qualifications which have already been made.”

From this point forward there is nothing in the record to indicate that any part of the items objected to was read to the jury or was in any way exhibited to the jury. We find nothing that shows that plaintiff made any attempt to utilize such exhibits. Nevertheless defendant has briefed the point. If defendant intends to complain here of the mere receipt of the items in evidence without any attempted use of them and if such receipt be regarded as error it is not difficult to label such receipt as harmless error.

Lastly, appellant maintains that the Court erred in refusing to declare a mistrial because of repeated improper and inflammatory remarks by plaintiff.’s counsel in his closing argument. It is the opinion of this Court that plaintiff’s counsel is deserving of severe censure for his conduct in attacking, both directly and by innuendo, the integrity of opposing counsel and of a witness. Counsel’s abusive language ranged from charges of intentional deception to deliberate omission of a word from a statement to twisting. Upon five occasions defence counsel objected to statements of plaintiff’s counsel and upon each occasion the objection was sustained and the jury instructed to disregard counsel’s statement. Despite the admonition implicit in the Court’s sustaining of objections to portions of his argument, counsel persisted in his objectionable personal references. Zealous pursuit of the interests of one’s client cannot justify invective or reprehensible references to one’s opponent. Counsel not only violated the elementary principle that in argument he must keep within the evidence and that his language must be justified by the record; he chose repeatedly, despite sustained objections, to go outside the record and to indulge in highly objectionable personalities. It might be said that his conduct bordered on contumacy.

Whether or not the persistent misconduct of counsel had the cumulative effect of inflaming the jury to the prejudice of defendant required a determination which could only be referred to the sound discretion of the trial judge. He had the jurors before him and thus was in a position to observe the effect, if any, upon them,— whether of cogency or of ludicrous exaggeration. Observing them in the flesh and drawing conclusions therefrom is entirely different from endeavoring to determine their reactions from the typewritten page. We cannot say that the trial court erred in refusing to declare a mistrial.

The judgment should be affirmed.

PER CURIAM.

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

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


author: DOERNER, Commissioner.

text:
    Helen Louise ANDERSON, Plaintiff-Respondent, v. Stanley Edward ANDERSON, Defendant-Appellant.
    No. 32227.
    St. Louis Court of Appeals. Missouri.
    May 17, 1966.
    Motions for Rehearing or for Transfer to Supreme Court Denied June 14, 1966.

      Joseph Langworthy, Pacific, for defendant-appellant.
    Norman Zaltsman, John J. Relies, Clayton, for plaintiff-respondent.
   DOERNER, Commissioner.

This is an appeal from an order overruling defendant’s motion to quash an execution, arising out of a divorce case. Such an order is a “* * * special order after final judgment in the cause * * * ” and is made appealable by Section 512.020, RSMo 1959, V.A.M.S. Carrow v. Carrow, Mo.App., 294 S.W.2d 595.

The divorce action was instituted on April 4, 1963 by the plaintiff, Helen Louise Anderson, in the Circuit Court of St. Louis County. She was represented in the suit by Mr. John J. Relies and Mr. Norman Zalts-man of the St. Louis County Bar. The nature of the responsive pleading, if any, filed by defendant Stanley Edward Anderson is not shown in the transcript before us. On May 10, 1963 plaintiff filed a motion for alimony pendente lite, child support, suit money and attorney’s fees. Thereafter, on June 11, 1963, the parties filed a stipulation in which they agreed, subject to the court’s approval, that the defendant should pay $15 per week for the support of Cindy Lou, their daughter, attorney’s fees in the sum of $200, and the court costs. The next entry which appears in the transcript is the judgment and decree, made on July 9, 1963, which recites that the plaintiff appeared in person and by her attorney but that the defendant came not and remained in default. Plaintiff was thereby granted a divorce; custody of the child, subject to defendant’s reasonable visitation rights; the sum of $1.00 per year as alimony; “ * * * the further sum of $100.00 as and for additional attorney fees; * * * ” and the costs were taxed against defendant.

On October 8, 1964, Mr. Relies filed what was styled, “Affidavit of Failure to Pay Attorney’s Fees” in which he deposed that “he did” represent the plaintiff in the divorce action; that “ * * * as a part of said judgment and decree (of July 9, 1963), affiant was granted a $300.00 attorney’s fee;” and that since said date defendant had paid only $20 of the $300, although frequently requested to pay the remainder. The affidavit closed with the prayer that the court issue an execution against the defendant for $280, and for any further orders the court deemed proper. On the same day the affidavit was filed Mr. Zaltsman, as attorney for Mr. Relies, filed a “Request for Execution and Garnishment” in which the clerk was requested to issue an execution against the defendant, returnable January 6, 1965, and a garnishment on McDonnell Aircraft Corporation. Pursuant to the foregoing, an execution was issued by the clerk, directing the sheriff of St. Louis County to collect the sum of $280, together with interest of 6%, and costs from the defendant. In his motion to quash the execution, filed on October 27, 1964, defendant relied upon the following grounds: (1) that the execution was not issued on behalf of plaintiff, and all matters between plaintiff and defendant with respect to attorney’s fees had been settled; (2) that the execution was an attempt by Mr. Relies to collect his attorney’s fee from defendant for services in the case performed for plaintiff; and (3) that Mr. Relies had filed a suit against defendant in the Magistrate Court of St. Louis County, District No. 5, for the legal services rendered in the divorce action, in which he recovered a judgment for $880, and was therefore estopped and barred under the doctrine of election of remedies from pursuing further the remedy by way of execution. A hearing was held on October 10, 1964, at which defendant alone introduced evidence, and on November 30, 1964, the court overruled and denied defendant’s motion to quash.

In this court defendant contends that the court erred in overruling his motion to quash, first, because the execution was issued without the knowledge, consent, or authority of plaintiff; and second, because Mr. Relies, having obtained a judgment against defendant for $880 in the Magistrate Court, was barred by the doctrine of election of remedies from pursuing his remedy by execution.

It will be recalled that by stipulation plaintiff was granted $200 for attorney’s fees as part of her allowance of alimony pendente lite, and an additional sum of $100 for the same purpose by the final decree. These were separate and distinct allowances, which ordinarily are subject to separate appeals. We question but need not decide whether they may be enforced by one execution, and because of the conclusion we have reached we will treat the allowances as one, as Mr. Relies did in his affidavit.

The authority to allow both alimony pendente lite, and alimony upon the granting of a divorce to the wife, is found in Section 452.070, RSMo 1959, V.A.M.S. The category of alimony and alimony pendente lite embraces and includes allowances for suit money, ■ support, and attorney’s fees. By the clear terms of that statute such alimony must be decreed to the wife, and an allowance cannot be made to her attorney — this for the very obvious reason that the attorney is not a party to the action. Howard v. Howard, Mo.App., 300 S.W.2d 853; Noll v. Noll, Mo.App., 286 S.W.2d 58; Kaltwasser v. Kaltwasser, Mo.App., 197 S.W.2d 102; Knebel v. Knebel, Mo.App., 189 S.W.2d 464; Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W.2d 274. In short, the judgment in the divorce case was not, and could not be, in favor of plaintiff’s attorneys; it was one in favor of plaintiff which included an allowance for attorney’s fees. Bovard v. Bovard, supra; Howard v. Howard, supra. The statute relating to the issuance of executions provides that, “The party in whose favor any judgment * * * is rendered, may have an execution in conformity therewith.” (Emphasis supplied.) Section 513.015. That section has been construed to mean that only the holder of a judgment or his authorized agent may interpose in its control, which includes, of course, the right to procure the issuance of an execution for the purpose of collecting the judgment. Davis v. McCann, 143 Mo. 172, 44 S.W. 795; People’s Savings Bank v. McDowell, Mo.App., 204 S.W. 406; State ex rel. Ross, and to Use of Drainage Dist. No. 6 of Pemiscot County v. Juden, Mo.App., 110 S.W.2d 865.

It is obvious from a careful review of the record that the plaintiff was not a party to the issuance of the execution. She did not order it, nor did she request or authorize the clerk to issue it. Nor does it appear that she authorized Mr. Relies to do so on her behalf. On the contrary, the record and the plaintiff’s testimony compel the conclusion that in procuring the issuance of the execution Mr. Relies was acting only in his own behalf and that of his associate, and solely for the purpose of collecting the remainder of the attorney’s fee which had been allowed to the plaintiff, for services in the divorce case that had terminated over a year prior to. the issuance of the execution. This is firmly established not only by the affidavit which he filed, in which he stated that “he did” (not does) represent the plaintiff in the divorce case, and by the request to the clerk for the issuance of the execution; but by the uncontradicted testimony of the plaintiff:

“Q You didn’t request any action to be taken in your behalf to collect this judgment ?
“A No, I did not.
“Q You don’t want any action to be taken ?
“A No, as far as I am concerned.
“Q You do not want any action to be taken in your behalf to collect this judgment?
“A No, I do not.”

Neither Mr. Relies nor Mr. Zalts-man testified or offered any evidence at the hearing. Whatever their justification, it is clear that they were unauthorized to proceed as they did even though the judgments of alimony and alimony pendente lite included allowances to the plaintiff for attorney’s fees for the services they had rendered. Under this state of the record the court should have sustained defendant’s motion to quash the execution. Howard v. Howard, Mo.App., 300 S.W.2d 853; Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W.2d 274.

This is not to say that Mr. Relies and Mr. Zaltsman are without a remedy. Our statute, Section 484.130, provides that an attorney has a lien upon his client’s cause of action and that the lien attaches to a judgment in his favor. While it has been held that such lien cannot be impressed upon a judgment for alimony and maintenance of the wife, Hilleary v. Hilleary, 189 Mo.App. 704, 175 S.W. 282, a judgment for suit money, including an attorney’s fee, is subject to the lien. Howard v. Howard, supra; Bovard v. Bovard, supra. If, therefore, plaintiff fails or refuses to cooperate by requesting the issuance of an execution to enforce the judgment, counsel may take appropriate action to establish their lien upon the judgment and enforce its collection. As was pointed out in Mills v. Metropolitan St. Ry. Co., 282 Mo. 118, 221 S.W. 1, 3-4, our attorney’s lien statute, while creating a right that did not exist at common law, failed to provide a remedy; but “ * * * the courts have been assiduous in devising for its enforcement modes of procedure conformable to ‘those general rules established in our system of jurisprudence for the security of private rights.’ * * * ” See, in that regard, Young v. Levine, 326 Mo. 593, 31 S.W.2d 978; Bovard v. Bovard, supra; Satterfield v. Southern Ry. Co., Mo.App., 287 S.W.2d 395.

There is no merit to the second ground of defendant’s motion to quash the execution. The doctrine of election of remedies “ * * * applies only where the party has but one cause of action, one right infringed, one wrong to be redressed. The doctrine does not require election between distinct causes of action arising out of separate and distinct facts. * * * ” Broz v. Hegwood, 349 Mo. 920, 163 S.W.2d 1009, 1010. The cause of action pleaded in the suit in the Magistrate Court was definitely not on the attorney’s lien. Seemingly it was on some common law theory of implied contract. We are not called upon to express any opinion regarding the merits of that action or the validity of the resulting judgment, and we do not do so.

The judgment is reversed and the cause remanded to the trial court with directions to sustain defendant’s motion to quash the execution.

PER CURIAM.

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

Accordingly, judgment is reversed and cause remanded to trial court with directions to sustain defendant’s motion to quash the execution.

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