author: CHADICK, Chief Justice.

text:
    A. C. SMART and Harold Stringer, Administrator of the Estate of Earl Story, Appellants, v. John J. LLOYD, Appellee.
    No. 7512.
    Court of Civil Appeals of Texas. Texarkana.
    Aug. 13, 1963.
    Rehearing Denied Sept. 10, 1963.

      Charles H. Clark: Lawrence & Lawrence, Tyler, for appellants.
    Clapp & Beall, Henry L. McGee, Jr., Tyler, for appellee.
   CHADICK, Chief Justice.

This is an appeal from an order granting a temporary injunction. The order is affirmed.

The appellant’s brief referring to this appeal says, “The question before the court is whether the City Commission can act upon the zoning change without first having received a recommendation from the City Plan Commission.”. The narration of the facts will be restricted to those having relevancy to this question as far as practicable.

The owners of adjoining lots in the City of Tyler, Texas, filed a joint application with Tyler’s City Plan Commission to amend Tyler’s existing Master Zoning Ordinance to change the zoning of their two lots, 1-B and 2-B, Block 1010 South Broadway Addition, “from ‘R-la’ Residential District to ‘R-3’ Apartment District * * The application was considered November 1, 1962, and was “tabled for further study until the next regular meeting * * * The Minutes of a regular meeting of the Plan Commission held Dec. 6, 1962, shows that an application for an identical change upon property of the same description was considered. This extract from the Minutes of this latter meeting is quoted to show a slight change made in the course of the hearing respecting the property considered, action taken by the Plan Commission, and other relevant aspects of the business transacted at that time.

(Quote) “Mr. H. F. Ezell reiterated to the City Plan Commission statements made at a previous hearing and added that changes have been made in their plans in an attempt to eliminate the reasons for protest.
“Mr. Ezell requested that the application be reduced by 120 ft. on the east, extending from Colgate Avenue West, where he proposes to construct residences on the West side of Colgate Avenue to equal or exceed the homes in the vicinity, by doing so the number of apartments will be reduced by 25. He also stated * * *.
“Commissioner Caldwell moved that the application be rejected, since the change would result in spot zoning andi this commission does not have the legal right to spot zone unless there is a public necessity for an apartment house in this location, and in his opinion no public necessity exists; further that in his. opinion the zoning ordinance is so written that if the property is zoned for apartments a tourist court could be built under the same zoning classification t further that in the last 3 years there have been zoned 7 pieces of property for apartments and not one apartment has been built to date; further that land suitable and zoned for apartments, is available all over Tyler at this time further if applications of this nature are granted the City will be in a mess and! courts could throw out the Zoning Board.
“The motion died for lack of a second.
“Commissioner Stringer disqualified! himself from voting since he is the Administrator of the Estate of Earl Story,, one of the applicants.
“Commissioner Leon Kent also disqualified himself from voting since he has a financial interest in a house ⅛ this area.
“Commissioner Burton requested of the Asst. City Attorney if a tourist court could be built in the same zoning-classification as an apartment house,, since the Zoning Ordinance states that a motel or hotel is classified as ‘C-2’ General Commercial District.
“Asst. City Attorney Henry L-McGee stated that there is some question regarding the definition of a multiple dwelling as defined in the Zoning Ordinance.
“Commissioner Burton moved that the City Plan Commission recommend to the City Commission that the application be approved, since zoning for similar apartments was granted directly across South Broadway, and in view of the fact that Mr. Ezell has agreed to construct residences on the West side of Colgate Avenue.
“This motion died for lack of a second.
“Due to the lack of a second for either motion, Chairman Kay stated that the City Plan Commission has no recommendation to make to the City Commission on this application.
“The applicants then asked what steps they should take in order to get approval or rejection for their application.
“The City Plan Commissioners requested a written opinion from the City Attorney’s office as to whether or not the Commission can take action on a zoning application without first receiving a recommendation from the City Plan Commission, and requested an opinion regarding the zoning classification of apartments and tourist courts.”

The owner of one of the lots included in the application appeared before the Tyler City Commission the following day and advised the Commission of the zoning dilemma he considered himself to be in and thereafter discussed his problems with unidentified members of the Commission at various times prior to January 4, 1963. On the last mentioned date a regular session of the Tyler City Commission, by unanimous vote, enacted an amendment to the existing zoning ordinance, which changed the zoning designation applicable to the two lots, except 125 feet off the east end of each, from “R-la” Residential District to “R-3” Apartment District.

The City Secretary, who serves also as Secretary of the City Plan Commission, testified that the customary method employed in reporting the Plan Commission’s recommendations to the City Commission was to furnish the City Commission with the Plan Commission’s Minutes. In this case Minutes of its meeting held December 6, 1962, were before the City Commission, having reached the City Commission in an undisclosed way, though it may be deduced from the evidence the customary procedure was followed.

The Minutes show clearly that the application was neither approved nor denied by a vote of the Commission. Just as clearly there is an absence of a recommendation of any nature by the Plan Commission to the City Commission. In the Minutes there is a notation of a request by the Plan Commission for a written legal opinion from the City Attorney respecting the scope of certain zoning designations including the designation under consideration, “R-3” Apartment District. The request coming at a time when the Plan Commission’s non-action could have arisen from doubt as to the effect a change might have, subjects the minutes to a construction that the Plan Commission desired to have more accurate information on the use to which the lots might be put should the application be granted. Passing to other business after requesting the legal opinion suggests that the Plan Commission as a body intended to defer action on the application until the City Attorney’s opinion was received. The notation in the Minutes that the Chairman stated the City Plan Commission “has no recommendation to make to the City Commission on this application; * * *” is merely the record of a remark expressing a personal opinion. The Minutes do not purport to express a concensus of the Plan Commission.

The trial judge properly construed the Minutes of the December 6th meeting as showing that action on the application was intended to be deferred until a subsequent meeting, and that no recommendation disposing of the application was made by the Plan Commission to the City Commission. The statement in appellant’s brief quoted in the second paragraph of this opinion impliedly admits the correctness of this conclusion.

The City Zoning Law, Acts 1927, 40th Leg. p. 424, Ch. 283, enables cities to pass zoning regulations, etc. The original Act, and amendments to it, are codified as Art. 1011a through lOllj, Vernon’s Ann.Tex.Civ. St. The City Zoning Law, as amended, empowers the City Commission of Tyler, at its discretion, to exercise the authority conferred. The exercise of the authority is conditioned in several ways; prominent among the conditions is that contained in Art. 101 Id (Sec. 4 of the original Act). This article required the City of Tyler to set out a procedure, in its comprehensive zoning ordinance, governing the process of amending the ordinance. In conformity with this statutory direction the City of Tyler enacted Sec. XXIII of its Master Zoning Ordinance which reads, in the part material to this lawsuit, as follows: “The City Commission of Tyler may, from time to time, amend, supplement, or change by ordinance the boundaries of districts or regulations herein established. Any proposed amendment, supplement, or change shall first be submitted to the City Plan Commission for its recommendation and report.”

The power of the City to zone is that delegated to it by the state. See “Zoning” 10 Texas Jurisprudence Ten Year Supplement, p. 186, Secs. 3, 4, and 5. When the City of Tyler enacted its Comprehensive Zoning Ordinance, it exhausted its power to make changes in zone boundaries therein except in accordance with the procedure set out in the comprehensive ordinance. This construction of the City Zoning Law and Tyler’s Master Zoning Ordinance is reached by either of two theories. First, in cases of this nature, upon the theory that when a statute directs that action be taken in a certain way' it may be performed in m> other manner. Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084; Oilmen’s Reciprocal Ass’n, v. Franklin, 116 Tex. 59, 286 S.W. 195. The second theory, which is possibly a rendition of the first theory in different language, is that the Legislature having said by Art. 101 Id' that cities adopting a comprehensive Zoning-ordinance must provide a procedure for the amendment of such ordinance, by implication directs that the city will follow the procedure it adopts.

Though no case precisely in point has come to the attention of this court, the elementary rule of statutory construction referred to is sufficient to dispose of the question presented. This court holds that the effort of January 4, 1963, by the City Commission to amend Tyler’s Master Zoning Ordinance and change the existing zoning designation, without having first had a report and recommendation respecting the change from the City Plan Commission, is-a nullity and of no effect.

The City of Tyler did not perfect an appeal. The order granting a temporary injunction as between A. C. Smart, Harold Stringer, Administrator of the Estate of Earl Story, deceased, the appellants herein,, and John J. Lloyd, the appellee, is in all things affirmed.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    John Clay SMITH, (Plaintiff) Respondent, v. ARTHUR C. BAUE FUNERAL HOME, a Corporation, and Arthur C. Baue and David Baue, an unincorporated copartnership, (Defendants) Appellants.
    No. 49788.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.
    Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, John R. Stockham, Stockham & Breckenridge, St. Louis, for appellants.
    J. F. Souders, Gruenberg, Schobel & Sou-ders, St. Louis, for respondent.
    Henry Andrae, Jefferson City, Hendren & Andrae, Jefferson City, of counsel, for amicus curiae National Selected Morticians.
    Edward D. Summers, Jefferson City, for amicus curiae Missouri Funeral Directors’ and Embalmers’ Ass’n., Inc.
   HOLMAN, Judge.

Plaintiff, a discharged employee of the Arthur C. Baue Funeral Home, in this action sought to enjoin his former employers from refusing to reinstate him, and to require the payment of lost wages as well as actual and punitive damages. At a hearing held on May 4,1962, before Judge James D. Clemens, plaintiff was denied a temporary injunction. Thereafter, Judge Clemens disqualified himself and Judge James F. Nangle was assigned to hear further proceedings in the case. The trial before Judge Nangle resulted in a final judgment permanently enjoining defendants Arthur C. Baue and David Baue from interfering with plaintiff’s right to bargain collectively, from denying plaintiff continued employment by defendants, and requiring that defendants reinstate plaintiff as an employee and pay him all compensation which he would have received had he not been discharged. Defendants have duly appealed from said judgment. We have jurisdiction because the issues here presented involve a construction of certain constitutional provisions.

The appeal in a companion case in which the Baues sought to enjoin the union from picketing their funeral home in St. Charles was submitted at the same time as the case at bar. See Arthur C. Baue et al. v. Embalmers Federal Labor Union No. 21301 et al., No. 49,789.

Plaintiff, 24 years of age at trial time, was employed for an indefinite term as an embalmer by Arthur C. Baue Funeral Home, a Corporation, of St. Charles, Missouri, on January 3, 1961, at a salary of $75 per week and a rental allowance of $25 per month. In August 1961 his salary was increased to $90 per week. Also, plaintiff was reimbursed for telephone service and was given group life and hospital insurance by his employer. Plaintiff testified that he was advised by the Baues that if he desired to join a union they “couldn’t use him,” and that if anyone from the union approached him he should not talk with them; that they told him that the union contract would not permit either of them to embalm, and that he had told them he didn’t think that was fair; that his relationship with the Baues was friendly and that they had urged him to study and learn to be a funeral director; that they had given him a suit of clothes on one occasion, and on several occasions had loaned him an automobile to go to his former home in Walnut Ridge, Arkansas.

Plaintiff testified further that he contacted a union representative about the first of April 1962, and on April 9 signed cards authorizing the union to represent him; that he met with Arthur and David Baue in their office on April 14 and they advised him that they had received a letter from an attorney representing the union, and asked him if the union had contacted him and he said “No”; that at that time they (the Baues) advised him that they wanted to form a partnership so he would become a part of management; that on April 16, they delivered partnership papers to him, but he advised them that he wanted to consult an attorney in Walnut Ridge, Arkansas, before signing the agreement; that they told him at that time that if he joined a union they would have to discharge him, and he told them he would not talk to a representative of the union if one came to see him; that on April 18 he was told by Arthur that he could go to Arkansas for the Easter week end and have the attorney examine the partnership papers; that they wanted him to submit a letter of resignation, dated April 7, which they could show to the union representatives when they met with them on April 20; that the letter of resignation would not affect the partnership or his pay; that “they asked me if the union had contacted me, and I said ‘No’ ”; that he went to Arkansas but did not have the attorney examine the partnership papers because he knew before leaving that he wasn’t interested in a partnership; that after returning from Arkansas he saw the Baues on Monday afternoon when he reported for work; that David asked him to come in the office and he was then asked if he had contacted the union and he said “Yes”; that David stated that he was disappointed in him, and handed him a letter of discharge which stated that his employment was terminated because of plaintiff’s failure to send them the letter of resignation. Plaintiff stated that since his discharge he has attempted to obtain employment elsewhere as an embalmer but has been unable to do so; that he did receive $25 per day from the union for walking the picket line during the first three weeks following his discharge, and $20 per day for the second three weeks.

David Van Fossan testified that he was a practicing embalmer and was president of the Embalmers Federal Labor Union, Local No. 21301; that it was the policy of the union to try to organize funeral establishments which bury more than 85 people per year; that plaintiff called him on April 7, 1962, and expressed the desire that the union become his sole agent for collective bargaining; that he later sent plaintiff papers to sign, which he signed and returned to him; that he then had an attorney for the union write the Baues and advise that they would call on them on April 20 and discuss a union contract; that plaintiff called him on April 16 and advised him of the proposed partnership agreement and he advised plaintiff that if he became a partner he could not belong to the union; that he and other union representatives called on the Baues on April 20 and discussed the contract and, at the request of Arthur Baue, another meeting was arranged for April 25; that on April 23 he was notified that plaintiff had been discharged; that after sending a letter of protest to the Baues the union set up a picket line at the funeral home. He testified further that the proposed contract contained a provision under which neither Arthur nor David Baue could embalm bodies unless they joined the union, and so long as they had any ownership in the business they could not join the union; that the provision prohibiting management representatives from embalming had to be in all contracts and was not subject to negotiation.

David C. Baue testified that he was a mortician and a partner with his father in the operation of the Baue Funeral Home in St. Charles; that the partnership had been formed on March 28, effective April 1, 1962, and it leased the funeral home from the corporation; that plaintiff had told him that he knew nothing about the letter they (the Baues) received from the union, no representative of the union had contacted him, and that he had signed nothing and would not talk to a union representative if one called on him; that he had explained to plaintiff what a union contract would do to their business; that plaintiff was discharged for failure to send the requested letter of resignation as stated in the letter of discharge, and also for being dishonest in failing to be candid and frank with them concerning the fact that he had authorized the union to bargain for him. He further stated that if they entered into a union contract they would have to employ another employee; that plaintiff’s salary would be increased from $90 a week to $170 a week; that they would have to discontinue their ambulance service which is a good public relations service for funeral homes; that they would have to discontinue some charitable services which are furnished at less than cost; that because of these additional expenses they would have to increase the price of their funerals which would cause them to be more than those of their two competitors in St. Charles, neither of whom have more than 85 funerals a year.

The testimony of Arthur C. Baue, upon the essential facts here involved, was very similar to that of David Baue and for that reason will not be detailed herein. He did state additionally that he began the operation of the business in 1935, and since that time had been either the owner or part owner thereof; that he is a licensed embalmer, as is his son David.

The allegations of plaintiff’s petition with which we are here concerned are in paragraphs 7 and 8, wherein it is alleged that on April 23, 1962, defendants “7. * * discharged plaintiff effective April 20, 1962, because of his membership in said labor organization and because plaintiff had designated the said labor organization as the sole and exclusive representative for the purposes of collective bargaining with respect to wages, hours, and other conditions and terms of plaintiff’s employment. 8. The action of the defendants in dismissing plaintiff from its [their] employ is violative of the rights and guarantees contained in Article I, Section 29 of the Constitution of the State of Missouri that employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” It is conceded that plaintiff had not actually joined the union. However, as heretofore stated, he did sign a paper designating the union as his “sole and exclusive representative for purposes of collective bargaining, to negotiate and execute an agreement on my behalf with my said employer covering my wages, hours and all other conditions of employment.” For the purposes of this opinion we Will assume that he was discharged for the reason (at least in part) that he had signed the aforementioned paper authorizing the union to represent him in bargaining with his employers.

The question presented, therefore, is whether plaintiff’s discharge because of said union authorization would warrant an equitable judgment against his employers such as was entered by the trial court herein. We have concluded, primarily upon the authority of the case of Quinn v. Buchanan, Mo.Sup., 298 S.W.2d 413, that plaintiff was not entitled to the relief granted by the trial court in this cause.

The petition does not allege, and the evidence does not disclose, any contract between plaintiff and defendants relating to the tenure of plaintiff’s employment. “The rule is well established in this state and elsewhere that in the absence of a contract for employment for a definite term or a contrary statutory provision, an employer may discharge an employee at any time, without cause or reason, or for any reason and, in such case, no action can be maintained for wrongful discharge. Culver v. Kurn, 354 Mo. 1158, 193 S.W.2d 602, 166 A.L.R. 644; Forsyth v. Board of Trustees of Park College, 240 Mo.App. 622, 212 S.W.2d 82; Bell v. Faulkner, Mo.App., 75 S.W.2d 612; Odell v. Humble Oil & Refining Co., 10 Cir., 201 F.2d 123.” Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 124. Plaintiff concedes that the quoted rule is established in this state but contends that it has no application if the discharge is accomplished under circumstances that would constitute a violation of Section 29, Article I, Constitution of Missouri, 1945, V.A.M.S., which provides that “employees shall have the right to organize and to bargain collectively through representatives of their owni choosing.”

The relief granted plaintiff in this case was primarily the same as the “mandatory relief” sought by the discharged employees in the Quinn case, i. e., reinstatement, and' “to award them such pay and allowances, as they would have earned had they not been unlawfully discharged.” 298 S.W.2d 416. In Quinn, the trial court sustained a motion to dismiss the petition. This court reversed and remanded the cause,, holding that “plaintiffs in this class action are entitled to preventive relief enjoining defendant from coercing his employees into withdrawing from the union and rescinding their authorization to it to act as their collective bargaining representative and also from otherwise interfering by coercion with these employees’ rights to freely choose the union as their collective bargaining representative. * * * However, plaintiffs are not entitled to the mandatory relief sought (emphasis ours) or to require defendant to recognize and bargain with the union. The relief to which they are entitled is to have the rights of those employees, who voluntarily choose to organize with them for the purpose of collective bargaining, protected from coercion.” 298 S.W.2d 418, 419.

In discussing the meaning of Section 29, Article I, supra, in Quinn, we stated:

“This is a provision of the Bill of Rights by which the people assert their rights, acknowledge their duties and proclaim the principles upon which their government is founded. (See preamble to Art. I.) Provisions of a Bill of Rights are primarily limitations on government, declaring rights that exist without any governmental grant, that may not be taken away by government and that government has the duty to protect. 1 Cooley’s Constitutional Limitations 93, 358; Am.Jur. 1092, Sec. 308; 16 C.J.S. Constitutional Law § 199, p. 976. As these authorities show, any governmental action in violation of these declared rights is void so that provisions of the Bill of Rights are self-executing to this extent. See also 1 Cooley’s Constitutional Limitations 166 note. They do not, however, usually provide methods or remedies for their enforcement and certainly it is proper and within the legislative power to enact laws to protect and enforce the provisions of the Bill of Rights. 11 Am.Jur. 1094, Sec. 309. In the absence of legislation, individuals may enforce and protect tírese rights from infringement by other individuals by any appropriate common law or code remedy. * * *

“It should also be pointed out that Sec. 29, Art. I is not a labor relations act, specifying rights, duties, practices and obligations of employers and labor organizations, as plaintiffs seem to claim. See cases under similar New York constitutional provision: Erie County Water Authority v. Kramer, 208 Misc. 292, 143 N.Y.S.2d 379; Quill v. Eisenhower [5 Misc.2d 431], 113 N.Y.S.2d 887, 889; Trustees of Columbia University v. Herzog, 269 App.Div. 24, 53 N.Y.S.2d 617, affirmed 295 N.Y. 605, 64 N.E.2d 351, and Domanick v. Triboro Coach Corp., Sup., 18 N.Y.S.2d 650. This provision is a declaration of a fundamental right of individuals. It is self-executing to the extent that all provisions of the Bill of Rights are self-executing, namely: Any governmental action in violation of the declared right is void. As between individuals, because it declares a right the violation of which surely is a legal wrong, there is available every appropriate remedy to redress or prevent violation of this right. However, the constitutional provision provides for no required affirmative duties concerning this right and these remedies can only apply to their violation. As stated in the Quill case, 113 N.Y.S.2d loc. cit. 889: ‘It is evident that the constitutional provision guaranteeing employees the right to organize and bargain collectively through representatives of their own choosing does not cast upon all employers a correlative obligation. The constitutional provision was shaped as a shield; the union seeks to use it as a sword. * * * The constitutional provision was intended to protect employees against legislation or acts which would prevent or interfere with their organization and choice of representatives for the purpose of bargaining collectively.’ Thus implementation of the right to require any affirmative duties of an employer concerning it is a matter for the legislature.” 298 S.W.2d 417, 418, 419.

As shown by the foregoing, Quinn held that the constitutional provision here under consideration would not authorize relief in the nature of reinstatement and recovery of lost wages upon a showing of discharge because of membership in a union or other union activity. We therefore rule, as heretofore indicated, that the judgment herein ordering reinstatement and recovery of lost wages was not authorized by said constitutional provision.

Plaintiff has cited Cooper v. Nutley Sun Printing Co., Inc., 36 N.J. 189, 175 A.2d 639, and certain other New Jersey cases which hold that the courts may grant relief such as plaintiff obtained herein under a constitutional provision similar to Section 29, Article I, supra, even though there had been no implementing legislation enacted. We assume those cases are cited in the hope that the reasoning therein would convince us that Quinn is unsound and should be overruled. We have accordingly made a careful review of the Quinn opinion in the light of the reasoning in the New Jersey cases and have concluded that the Quinn case is sound and should be followed in the case at bar.

It should also be noted that the court in its judgment granted an injunction against defendants Arthur C. and David Baue restraining them from coercing or otherwise interfering with the rights of their employees to organize, etc. This relief was not specifically prayed for in plaintiff’s petition but was apparently granted by the court under the prayer for general relief. The Quinn case held that that type of relief is authorized in a case of this nature. However, since plaintiff is the only employee (or former employee) of defendants who is concerned with this controversy, and since he has been discharged and is not entitled to reinstatement, there is no basis for affirming that portion of the judgment.

As indicated, we rule that plaintiff is not entitled to any equitable relief in this action. However, it is well established that in furtherance of justice a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had. (There are certain restrictions on that rule but none are applicable here.) We have concluded, for the following reasons, that the cause should be remanded for a retrial of the issue of plaintiff’s pleaded claim for damages for wrongful discharge.

As heretofore stated, since plaintiff had no contract of employment for any definite term, his employers’ right to terminate his employment at any time for any reason was well established by our decisions. However, this right was modified by the adoption of Section 29, Article I, supra, to this extent, namely, an employer may not discharge an employee for asserting the constitutional right thereby given him to choose collective bargaining representatives to bargain for him concerning his employment. This is true because, as we said of this provision in Quinn, “As between individuals, because it declares a right the violation of which surely is a legal wrong, there is available every appropriate remedy to redress or prevent violation of this right.” 298 S.W.2d 419. Thus, plaintiff’s discharge, if it was for that reason (and plaintiff had substantial evidence to show that it was), was a wrongful discharge for which he could maintain an action for damages. We have heretofore assumed, for the purposes of this opinion, that plaintiff was discharged because of the union authorization. We see no occasion for this court to make a finding as to that issue. Since the claim for damages is at law, the jury (unless waived) should determine that issue and the amount of damages, if any, plaintiff is entitled to recover.

The judgment is reversed and the cause remanded for a limited new trial in accordance with the views herein expressed.

All concur.


author: WELBORN, Commissioner.

text:
    STATE of Missouri ex rel. Thomas F. EAGLETON, Attorney General, Respondent, v. Bonnie PATRICK, Appellant.
    No. 49828.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.

      Roswell Henderson, Moberly, for appellant.
    Thomas F. Eagleton, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for respondent.
   WELBORN, Commissioner.

The Attorney General of Missouri, as authorized by Sec. 198.160, commenced this action in the Randolph County Circuit Court to enjoin appellant’s alleged operation in Moberly of a nursing home, without a license, required to be issued, under Chapter 198, by the State Division of Health.

The circuit court issued a temporary restraining order upon the suit being filed and, upon submission of the cause, granted a permanent injunction. After motion for a new trial had been overruled, defendant appealed to this court. The State “in its own behalf” is a party to the action. State ex rel. Thrash v. Lamb, 237 Mo. 437, 141 S.W. 665. We have jurisdiction of the appeal. State ex rel. Collet v. Scopel, Mo.Sup., 316 S.W.2d 515.

Section 198.011 V.A.M.S., enacted in 1957 (Laws of Mo., 1957, p. 666), provides, in part, as follows:

“(1) The term ‘nursing, ‘convalescent’ or ‘boarding’ home means a private home, institution, building, residence or other place, whether operated for profit or not, which provides, through its ownership or management, maintenance, personal care or nursing for three or more individuals not related to the operator, who by reason of illness, physical infirmities or advanced age are unable to care for themselves; or provides sheltered care to three or more individuals not related to the operator, which includes treatment or services which meet some need of the individual beyond the basic requirements for food, shelter and laundry. The term shall not include the following:” Certain exceptions follow, but appellant does hot claim the benefit of any of them.

The defendant contended in the trial court, and, as appellant here, that she was not engaged in an operation requiring a license under this statute.

According to the agreed statement of facts upon which the case was submitted, the appellant began operating her “home” at 1127 Henry Street, in Moberly, some time subsequent to the effective date of the 1957 licensing act, the exact date not appearing. Mrs. Patrick “held herself out to patients and relatives as being able to provide care”. She inserted advertisements in the Moberly Monitor-Index, soliciting bed patients for her home.

Following the receipt of “numerous” complaints that appellant was operating an unlicensed nursing home, a licensed physician and a registered nurse representing the State Division of Health, went to the home at 10:00 A.M., December 15, 1961. The appellant was not present at that time, but an employee, who was a licensed practical nurse and who was “left in charge of the premises,” admitted the inspectors without objection upon their identifying themselves.

At the time of the inspection, there were seventeen “patients” in the home. Five of the “patients” had been transferred from hospitals or licensed nursing homes and were under the care of their own licensed private physicians. Three of the “patients” had been adjudicated incompetent by the Probate Court of Randolph County. In the medical opinion of the Division of Health inspectors, five persons in the home required and needed “sheltered care, nursing care and medical supervision, above and beyond the basic requirements of food shelter and laundry.”

The inspectors were in the home for approximately forty minutes. During their inspection they saw no personal service or nursing care rendered by anyone to the residents. At the time of the inspection, two wheel chairs, three commodes, five bedpans, three hospital beds, three sets of bedrails and two stocked medicine cabinets were being “utilized” on the premises.

Mrs. Patrick admitted she kept more than four persons who needed nursing care. She denied, however, that she provided any care, other than food, shelter and laundry, or treatment for them or any other patients. She served food at mealtime on cafeteria style trays. Food service was provided either at the bedside of the patient or in a chair, if the patient was sitting up. Mrs. Patrick did change and launder sheets and bed clothes in all rooms of the home.

According to the agreed statement, the position of the appellant was that she could keep as many patients as she wished who need care so long as she did not provide the needed care. In her brief in this court, she contends that the statute must be construed strictly in her favor and that the facts and circumstances enumerated in the agreed statement could bring her within the statutory definition only by a “strained interpretation” of Sec. 198.011.

In construing Sec. 198.011, we reject appellant’s contention that the section is to be strictly construed. The obvious purpose of this statute is to protect the health and safety of citizens who are unable fully to take care of themselves, particularly the more elderly persons, who, from necessity or choice, spend their later years in homes of the type which the statute would license and regulate. We know that the 1957 statute was enacted after a disastrous fire at a nursing home in War-renton, in which more than 70 lives were lost. See Report of Joint Committee on ■the Warrenton Fire, Senate Journal, 69th General Assembly (1957), p. 1240. Such an enactment as this is a vital and most important exercise of the state’s police power. City of Chicago v. Heffron, 346 Ill.App. 248, 104 N.E.2d 846. As such its construction, consistent with its terms, should be sufficiently liberal to permit accomplishment of the legislative objective. 3 Sutherland, Statutory Construction (3rd ed.), Sec. 7202, p. 397.

In reviewing the evidence, we must keep in mind the requirement that the plaintiff, in an action such as this, must establish the violation of the statute and a right to an injunction by clear and convincing evidence. State ex rel. Taylor v. Anderson, 363 Mo. 884, 254 S.W.2d 609. However, the trial court could draw all reasonable and legitimate inferences from the evidence presented before it, and base ultimate findings upon such reasonable inferences. Howard v. Zweigart, Mo.Sup., 197 S.W. 46; Schanbacher v. Lucido Bros. Grocery Co., Mo.App., 93 S.W.2d 1076, 1081. Hogue v. Wurdack, Mo.App., 298 S.W.2d 492. We may do likewise upon our review here, reviewing, as we do in a case such as this, the matter on its merits, and, in view of the submission of the case on an agreed statement of facts, without the deference ordinarily in an equity appeal accorded the findings of the trial court. Berghorn v. Reorganized School Dist., 364 Mo. 121, 260 S.W.2d 573, 583(15).

Analysis of the statute shows that two separate operations are included within its definition of nursing, convalescent or boarding home. The first category includes institutions at which, through the ownership or management, there is provided maintenance, personal care or nursing, for three or more individuals not related to the operator, who, because of illness, physical infirmity or advanced age, are unable to care for themselves. The second category encompasses institutions which provide “sheltered care to three or more individuals not related to the operator, which includes treatment or services which meet some need of the individual beyond the basic requirements of food, shelter and laundry.” Note that nothing is said as to the physical or mental capacity of the residents of institutions in this category.

A further classification of institutions covered by the law is found in Sec. 198.072, which requires the Division of Health to publish minimum standards for homes, “distinguishing between the home which has professional nursing care, the home which has practical nursing care and the home which has only domiciliary or personal care.”

Pursuant to this statute, the Division of Health has issued regulations for professional nursing homes, practical nursing homes and domiciliary homes. These regulations define the three types of homes as follows:

“PROFESSIONAL NURSING HOME —A facility in which all nursing care shall be under the general direction of a registered professional nurse who shall assume responsibility for all nursing care within the facility and who shall perform her duties under the general direction of persons licensed to practice medicine or surgery in the state of Missouri. A professional nursing home shall be so equipped and designed that it may accommodate convalescent or other persons who are not acutely ill and not in need of hospital care, but who do require skilled nursing care under the direction of licensed physician.

“PRACTICAL NURSING HOME — A facility equipped to render service to the residents as found in the above definition of a professional nursing home. Such services shall be rendered within the limits of the practical nurse law. The practical nursing home does not meet the professional requirements of the professional nursing home. It must, however, render care under the direction of a physician licensed to practice medicine and surgery in the State of Missouri. Such care shall meet the requirements of the manual and code.

“DOMICILIARY HOME — Any home which does not provide skilled nursing care. Such a home shall not be classified as a nursing home. Such a home shall be classified as a domiciliary home. It shall provide personal services only. The primary purpose of a domiciliary institution is to furnish food, shelter and other nonmedical services. The operator of such an institution shall provide personal services to the residents which shall include assistance in normal daily activity, help with dressing, feeding, and supervision of medications. Bed patients shall not be admitted to nor maintained within a domiciliary home.”

The agreed statement of facts contains no evidence that the appellant provided professional nursing services. The Attorney General would deduce that practical nursing services were furnished from the opinion of the inspectors and admission of the appellant regarding the need of five residents for nursing care and from the fact that the employee in charge at the time of the Division of Health inspection was a licensed practical nurse. However, even if this inference is permissible, we are confronted with the omission from the agreed statement of facts of any information as to why these individuals require nursing care. As above pointed out, the statute requires that they be persons unable to care for themselves by reason of illness, physical infirmity or advanced age. The agreed statement lists five persons who were transferred from hospitals or licensed nursing homes. However, except for the statement that these persons were under the care of their own pl^sicians, there is nothing in the agreed statement regarding their age, physical condition or nature of the condition which required medical attention. Presumably, the condition might have been such as would not preclude the persons’ caring for themselves. Nor is it clear from the stipulated facts that the five persons, found by the inspection team to need “sheltered care, nursing care and medical supervision” were the five persons transferred from hospitals and licensed nursing homes. In view of the failure of the agreed statement to provide facts essential for an operation within the first category under the statute, the injunction cannot be sustained under that portion of the statute.

However, the second category under the statutory definition does not present such problem. No reference is made in that classification to the reason for the persons needing care. In the light of the statutory requirement that something more than the basic needs of food, shelter and laundry service be provided by an establishment to bring it within this category, it is obvious that the General Assembly was endeavoring, in this instance, to eliminate from the statute’s application the well known and readily identifiable “boarding house”, at which persons, wholly able to take care of themselves, live and take their meals. The legislature intended to cover establishments which provided these services, together with laundry, but also something in addition. The description in the regulation defining domiciliary homes sheds light on the type of additional service furnished in the institution which the legislature had in mind. The definition refers to “assistance in normal daily activity, help with dressing, feeding and supervision of medication.” Certainly, in the light of the facts stipulated and the admissions of the appellant, the trial court could reasonably, and did, conclude, with which conclusion we agree, that appellant, in her operation of the home, must have provided, at the minimum, services of such nature. The appellant admitted that more than four of the residents needed nursing care, although she denied that she furnished it, that she told patients seeking admission and their relatives that she was able “to provide care”, and that she, by newspaper advertising, solicited bed patients for the home. Any such operation would inevitably involve the providing of more than simply room and board. If that were all of the care furnished, there would have been no occasion for a licensed practical nurse to have been employed to supervise the operation of the home in the absence of the appellant. Nor would a simple boarding house operation have required the equipment found on the premises, including commodes, bedpans, hospital beds and bed-rails. The trial court, in the light of the circumstances set out in the agreed statement, obviously did not accept the appellant’s “strenuous” denial that she rendered any care above and beyond food, shelter and laundry. We agree with the trial court’s rejection.

Appellant assigns as error the court’s overruling of her motion to suppress evidence obtained in the inspection by the representatives of the Division of Health. The grounds stated for the motion were that the entry was illegal and that the officers entered the premises without a search warrant, although they had adequate opportunity to obtain a warrant.

The difficulty with appellant’s motion, conceding that there might have been an illegal entry and search, which we in no manner infer to be the case and which question we do not reach at all, is that it is impossible to sift, from the agreed statement, the evidence obtained as a result of the inspection and which appellant would suppress. Assuming, and again without deciding in any respect, that the opinion evidence of the inspectors that five of the residents of the home needed sheltered, nursing and medical care might be subject to exclusion under appellant’s motion, we have the appellant’s admission that she kept more than four persons requiring nursing care. Compare State v. Smith, 357 Mo. 467, 209 S.W.2d 138.

The agreed statement does not disclose whether or not the presence of the equipment described in it was discovered as a result of the inspection. The statement merely states that “it is agreed that at the time of the inspection,” the equipment was being utilized in the home. In view of the contents of the agreed statement, we find no error in the overruling of the motion to suppress. Contestible v. Brookshire, Mo.Sup., 355 S.W.2d 36, 44.

Appellant asserts that the judgment of the trial court should be reversed because the Division of Health, in establishing standards for the three classes of homes, required by Sec. 198.072, V.A.M.S., has established, in each category, different standards for homes operating at the time of the enactment of the 1957 act and for those beginning operation thereafter. Appellant asserts that this results in six categories rather than three, as authorized.

We can find no basis for any standing on the part of appellant to raise this question in this proceeding. Appellant is not seeking a license under the act. According to the stipulation, she would apply for a license if she could do so under the pre-existing licensed practical nursing home classification. However, insofar as this action is concerned, the statute, not the regulation, is being applied. If appellant wishes to attack the regulation, proceedings are available for such purpose (Rule 87.02(c) ), but she may not do so here. “One who is required to take out a license will not be heard to complain, in advance of application, that there is danger of refusal. * * * He should apply and see what happens.” Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 616, 57 S.Ct. 549, 553, 81 L.Ed. 83. See also Bourjois, Inc. v. Chapman, 301 U.S. 183, 188, 57 S.Ct. 691, 81 L.Ed. 1027. The stipulation does state that appellant would have been unable to meet the safety standards prescribed for pre-existing domiciliary homes. However, this is a matter to be determined by the Division of Health, not by the parties to this action and to the stipulation.

In the circuit court, the only pleading which appellant filed, other than the motion to suppress, was an answer, in the form of a general denial. The agreed statement of facts contains a stipulation that the defendant contended that Chapter 198 is unconstitutional. Her contention was that Sec. 198.101 operated as a special law in that it excludes from medical supervision homes which are operated for those who rely upon treatment by prayer or spiritual means, alone, in accordance with the creed or tenets of a well-recognized church or religious denomination. This objection was renewed in the motion for new trial and is presented by appellant in her brief in this court.

The rule has long been established, that, to preserve constitutional questions for review in this court, the constitutional issue must be raised in the trial court at the earliest opportunity, consistent with good pleading and orderly procedure. Only in exceptional circumstances, such as a case in which no prior pleading is required (Ivey v. Ayers, Mo.Sup., 301 S.W.2d 790), may the objection be raised for the first time at the trial. By attempting to raise the question for the first time in the agreed stipulation, the appellant’s standing is the same as if it had been raised for the first time at trial of the cause. She had ample opportunity to raise the objection by proper pleading, such as by a motion to dismiss (Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763), or even in her answer, which, however, took the form of a general denial and was thus insufficient to raise a constitutional objection. The constitutional objection, not having been timely raised, is not before us for review.

In view of our conclusion that the evidence warranted the issuance of the injunction by the circuit court, and finding no basis for relief in any of the errors assigned, the judgment of the circuit court is affirmed.

COIL and HOUSER, €C., concur.

PER CURIAM.

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

All of the Judges concur.

      . Section and chapter citations are RSMo 1959, Y.A.M.S.


author: STONE, Special Judge,

text:
    Charlene STANZIALE, Appellant, v. Robert E. MUSICK, Respondent.
    No. 48855.
    Supreme Court of Missouri, Division No. 1.
    July 8, 1963.
    Rehearing Denied Sept. 9, 1963.

      Kaer P. Vanice, II, Kirchner & Vanice, Kansas City, for appellant.
    Hale Houts, J. D. James, Edwin W. Rook-er, Houts, James, Randall, Hogsett & Mc-Cans'e, Kansas City, for respondent.
   STONE, Special Judge,

In this jury-tried action for damages in the sum of $50,000 for personal injuries claimed to have been sustained in a rear-end collision on Meyer Boulevard in Kansas City, Missouri, about 7 P.M. on July 21, 1958, plaintiff appeals from the judgment entered upon the unanimous jury verdict for defendant at the conclusion of the trial on January 21, 1961.

Plaintiff, a married woman then thirty-three years of age, was one of a group of six ladies en route to the Starlight Theater in a 1954 Ford sedan then being driven by Mrs. Ed Kelly. Plaintiff was riding on the right side of the front seat, and Mrs. Rosemary Weilert, then six and one-half months pregnant, was riding in the middle of the front seat. Mrs. Kelly, headed east on Meyer Boulevard, brought her automobile to a stop just west of Oak Street in obedience to an automatic traffic control light at the intersection of Meyer and Oak. “A few seconds” later, the rear end of the standing Kelly Ford was struck by the front end of defendant’s 1950 Buick sedan also headed east on Meyer. Defendant, accompanied by his wife and three minor children, was on the way home at the close of his day’s work at an A & P market.

As defendant left the market, it “just started to mist rain, a light mist,” and that continued during the brief period of about five minutes to the time of accident. Traveling east on Meyer at twenty to twenty-five miles per hour, defendant observed the Kelly automobile, eastbound in front of him, stop at the intersection; and, at a point estimated to have been fifty to sixty feet behind the Kelly automobile, defendant applied the brakes on his automobile. When he did so, “the wheels locked and started sliding so I (defendant) immediately released them and applied them again and I did that two or three times and every time I applied them it would slow me down but it wouldn’t stop.” By witness Wessling, a sergeant in the traffic safety bureau of the Kansas City police department with fifteen years’ experience in accident investigation, defendant adduced evidence without objection that a mist or light rain forms a “scummy-surface” on paved roadways, making them “extremely slick” for vehicular traffic and creating “a deceptive condition” for drivers without adequate knowledge and realization of the unique and unusual danger inherent in such situation; that, by reason of its oil base, “asphaltic concrete,” such as that on Meyer, becomes “particularly slick as compared to * * concrete”; and that such unusually hazardous condition continues until it has rained long enough and hard enough to wash off the streets. Defendant testified that, prior to application of the brakes, he was not aware of the particularly slick condition of the roadway. “I didn’t know the streets were slick” — “I had never had it just like that before.”

In any event, the front end of defendant’s Buick admittedly struck the rear end of the standing Kelly Ford. However, the evidence favorable to the verdict, the benefit of which must be accorded to defendant-appellee on this appellate review [see cases collected in West’s Missouri Digest under Appeal and Error, 930 (1)], was to the effect that the Buick had been traveling only three to five miles per hour at the time of collision, that it had stopped at the point of impact, that the Ford had moved forward “just about six inches,” and that neither automobile had been damaged.

Immediately after the accident, plaintiff and Mrs. Kelly, the driver, alighted from the Ford, and defendant and his wife got out of the Buick. Defendant’s wife walked forward to the Kelly Ford and “asked the group, as a whole,” whether anyone had been injured. Borrowing plaintiff’s language, “everybody said no excepting myself and I never answered.” When asked upon cross-examination why she had remained silent if (as she had testified) her head had been jerked and she had suffered a sharp pain in her neck— “it felt like a hot knife stuck right here (indicating),” plaintiff said “I didn’t think there was any sense in making a statement there” — “I stood there, everybody else was talking so why should I be lipping?” The parties re-entered their respective vehicles without even exchanging names and addresses, and Mrs. Kelly started forward. But, at plaintiff’s suggestion, Mrs. Kelly stopped, alighted from her automobile a second time, walked back to defendant’s automobile, and obtained his name and address. Plaintiff’s suggestion was prompted (so she said upon trial) by the fact that Mrs. Weilert, riding in the middle of the front seat of the Kelly Ford, was pregnant. We note parenthetically that Mrs. Weilert, called as a witness for plaintiff, testified that she had suffered no ill effects as a result of the accident. With her companions, plaintiff proceeded to the outdoor theater and sat through the performance, interrupted by a shower. She voiced her first complaint, that of a headache, when the group stopped at a drive-in on the way home.

Plaintiff was employed as assistant librarian at the research center of Spencer Chemical Company in Merriam, Kansas. Following the accident on the evening of Monday, July 21, 1958, she continued at her regular work through Friday, August 8, 1958, excepting for the loss of one-half day on Monday, July 28, and the entire day on Tuesday, July 29. Her first medical consultation was on Friday, August 1, with Dr. John L. Barnard, an orthopedic surgeon. In the detailed history then taken by Dr. Barnard (the accuracy of which was, upon trial, disputed by plaintiff but confirmed by the doctor), it was recorded, in part, that: “Patient gives a history of occasional back trouble for some time. * * * Her present difficulty in the upper back started about two weeks ago without any particular known cause. * * * Four nights ago patient was riding in the right front seat of a car which was struck from behind by another car, and following this the pain became more severe.” It may be proper at this point to observe that plaintiff’s cause of action was pleaded, tried and submitted on the theory that the rear-end collision of July 21, 1958, had been the sole and direct cause of her alleged injuries, and not on the theory that a pre-existing condition had been aggravated by that collision.

At the time of Dr. Barnard’s initial examination on August 1, 1958, plaintiff stated (according to the doctor’s office records) that “there are three areas of discomfort in the back — in the upper back and across the shoulders, in the middle of the back, and at the end of her spine,” that she had taken chiropractic treatments for her lower back, but that she had “no particular complaint of the low back at the present time.” X rays disclosed no evidence of bone injury; and, although plaintiff had various subjective complaints, “the only objective sign of any injury * * * was a little bit of spasm in the right side of the back.” His diagnosis was myositis (inflammation) of the posterior cervical muscles and right trapezius.” He advised, and plaintiff took, physical therapy treatments periodically until October 20, 1958. When plaintiff complained of more severe pain in both shoulders and the back of her head on August 8 (one week after initial examination), Dr. Barnard fitted her with a plastic cervical collar which she wore until October 27, 1958. She returned to work on Tuesday, December 9, “took a day’s vacation on the 10th,” and then worked regularly until January 28, 1959, when she slipped on ice and fractured a bone in her left foot. She did not work for Spencer thereafter and her employment was terminated “pretty much by mutual agreement” on February 6, 1959.

In the meantime, she had consulted Dr. A. D. Murray, a chiropractor, on December 5, 1958, had told him that she had sustained “a whiplash injury to the neck” in the rear-end accident of July 21, 1958, and had taken a series of eleven chiropractic adjustments terminating on January 16, 1959, which, according to Dr. Murray’s written report in evidence, had resulted in “abatement of all symptoms being effected” excepting only “a residual, though diminished, burning sensation in the left arm.” She also had returned to Dr. Barnard on January 5, 1959; and, in response to her complaints then altogether subjective, he had resumed physical therapy treatments, which continued intermittently until March 6, 1959. On April 3, 1959, Dr. Barnard advised plaintiff “to settle her case” and dismissed her from treatment.

Plaintiff thereafter had no medical attention or chiropractic adjustments prior to September 25, 1959, on which date an automobile driven by her was struck on the driver’s side by another automobile with sufficient force to inflict damage of $335.09 upon plaintiff’s automobile. Three days later, to wit, on September 28, 1959, plaintiff returned to Dr. Murray, the chiropractor. In his written report “made to someone at the request of the plaintiff” and here in evidence without objection, it was shown that plaintiff had told him that the collision of September 25, 1959, had caused “my neck to be snapped back and forth causing pain,” and that the chiropractor had diagnosed her condition as “whiplash strain of cervical musculature and liga-mentous tissue with subluxation” of several vertebrae and had stated that the accident of September 25, 1959, was the “sole cause” of her subsequent disability. A series of twenty-eight chiropractic adjustments followed before (according to Dr. Murray’s report) plaintiff’s disability ended on “approximately Nov. 30, 1959.”

While driving her automobile, plaintiff was involved in other accidents on February 3 and 22, 1960. In the accident of February 3, 1960, plaintiff slackened speed and the driver of the following vehicle ran into the rear end of plaintiff’s automobile. When cross-examined about this accident, plaintiff first said that the impact was “very slight,” that she then had sustained “no injury of any kind,” and that, so far as she knew, no damage had resulted. However, in the office records of Dr. Murray, the chiropractor, in evidence without objection, it was recited that plaintiff “was hit from behind again on Feb. 3 by a car going approx. 15 mph.” And although, when initially asked whether she had made a claim for injuries alleged to have resulted from the accident of February 3, 1960, plaintiff answered unequivocally, “no, sir, I haven’t,” further cross-examination soon established to the contrary and elicited grudging admissions that, in conversations with an insurance adjuster (subsequently identified as one Jerry Bowman), plaintiff had stated in substance that she expected a settlement payment on account of the accident of February 3, but would not discuss figures until her doctor had released her. At trial time in January 1961, this yet had not come to pass. Plaintiff was still “going” to Dr. Murray after having taken forty chiropractic treatments in 1960 and three in January 1961.

The accident of February 22, 1960, occurred as plaintiff was “easing down” an incline. The manner in which the accident happened is undisclosed and unimportant. According to plaintiff, “the tail fin” of her automobile came into contact with the side of the other vehicle but the impact was “practically none.” She made no claim for personal injuries on account of that accident but “I (plaintiff) wanted my car repaired because I felt that he was as much responsible as I was.”

On January 16, 1961 (only two days before the trial began), plaintiff returned to Dr. Barnard, the orthopedic surgeon, for an examination. Her principal complaints at that time (still subjective as they had been when Dr. Barnard had examined her on January 5, 1959) were “a burning sensation in her left arm” and “numbness in the middle and ring fingers on the left hand.” At the trial, plaintiff described the “burning sensation” as “the feeling of a hot iron setting on my arm” and asserted that she had experienced the same feeling since the accident of July 21, 1958, out of which this suit arose. When pressed on cross-examination to state whether she also “blamed” the other driver involved in the accident of September 25, 1959, for the “burning sensation” in her arm, plaintiff first said that she did but then fell back on “I don’t know.” And when asked wheth-' er she had told adjuster Bowman that the accident of February 3, 1960, had caused her arm trouble, she responded with art emphatic denial — “at no time did I make a statement like that” — and a vigorous affirmation that “I said * * * it (the burning sensation) had been there before and had never stopped.” But Bowman, called to the stand by defendant, testified just as positively that, when plaintiff first claimed during “the latter part of March (1960) * * * that she was having some repercussion from this accident” of February 3, 1960, she told him of a “tingling or burning sensation” in her arm which she attributed to the accident of February 3, 1960, and did not reveal as having been present prior thereto.

The first point in plaintiff’s brief is that “the court erred in not finding the verdict was against the weight of the evidence.” Under the plain and unambiguous provisions of Rule 83.05, subds. (a) (3) and (e), this point presents nothing for review. (All references to rules are to our Rules of Civil Procedure, V.A.M.R.) Mario Coil Corp. v. Grand Park Corp., Mo.App., 348 S.W.2d 610. Furthermore, an appellate assignment that the verdict is against the weight of the evidence refers to a matter which is essentially for the trial court. Robbins v. Robbins, Mo., 328 S.W.2d 552, 556 [7]; Meyers v. Smith, Mo.App., 349 S.W.2d 412, 415 [8]; Gould v. M. F. A. Mutual Ins. Co., Mo.App., 331 S.W.2d 663, 670-671 [13, 14].

Plaintiff’s second and third points are that “the court erred in not holding verdict was against the law and that verdict is a mistake under the law and the evidence” and that “the court erred in overruling plaintiff’s motion for new trial because said verdict was the result of prejudice, passion, failure of the jury to recognize the negligence of defendant and his failure of proof of legal defense, and was a mistake of the jury under the law and the evidence.”’ These generalized charges, which are submitted with no particularization either in the points themselves or in the argument section of plaintiff’s brief, are meaningless abstractions not even in colorable compliance with the requirements of Rule 83.05 and raise nothing for appellate review. Edmisten v. Dousette, Mo.App., 334 S.W.2d 746, 750, and cases cited in footnote 2. Moreover, the language of these points and the holdings in the cases cited thereunder (in several of which the appellate court affirmed the action of the trial court in granting a new trial on the weight of the evidence) indicate that the quoted complaints are but ill-disguised variations of the same misplaced effort reflected by the first point, namely, to seek a new trial here on the weight of the evidence.

In another point, plaintiff complains that “the court erred in not sustaining plaintiff’s motion for new trial because defendant had negligently collided with the automobile in which plaintiff was riding contrary to the rear end doctrine.” Defendant construes this to be a contention by plaintiff that she was entitled to recover as a matter of law; and, with no portion of the argument section of plaintiff’s brief identified or identifiable as relating to this point and defendant’s construction not challenged in a reply brief or upon oral argument, we similarly interpret the quoted language. However, plaintiff offered no motion for a directed verdict [Rule 72.01] and sought no peremptory instruction; but, on the contrary, plaintiff treated as issues for determination by the jury, and submitted by her instruction 1, (a) whether defendant had been negligent and (b) whether “such negligence if any directly caused” plaintiff’s injury. In these circumstances, plaintiff did not preserve for appellate review, and is precluded from urging here, the contention that she was entitled to recover as a matter of law. Rule 83.13(a); Heideman v. Lorenz, Mo., 349 S.W.2d 230 [1]; Robbins v. Robbins, supra, 328 S.W.2d 555 [1] ; Arnold v. Fisher, Mo.App., 359 S.W.2d 602, 606-607 [1]; Warren v. Weaver, Mo.App., 343 S.W.2d 682, 684-685 [3]. Although the foregoing is dispositive of this point, it may not be inappropriate to add that, if this point were to be ruled on its merits, we would be impelled to deny it. Schaefer v. Accardi, Mo., 315 S.W.2d 230, 232-233 [1-7]; Beezley v. Spiva, Mo., 313 S.W.2d 691, 695-696 [6-8].

Three of plaintiff’s points relate to the introduction of evidence. In one of these, plaintiff says that “the court erred in permitting defendant to introduce prior lawsuit and interrogate plaintiff regarding same.” This refers to a suit instituted by the same plaintiff, represented by the same attorneys, in the Circuit Court of Jackson County on August 18, 1953, in which plaintiff sought damages from her landlord for alleged permanent injury to her left hand when it was scalded by hot water and steam from a radiator in the apartment house where she then lived. We recollect in passing that “a burning sensation in her left arm” and “numbness in the middle and ring fingers on the left hand” were plaintiff’s principal complaints upon trial of the instant case, in which she again sought damages for permanent injury. However, we need not and do not rule this point on its merits for the reason that plaintiff’s counsel interposed no obj ection whatever to the propriety of detailed cross-examination of his client concerning the 1953 suit. Quite to the contrary, when defendant offered in evidence the original petition in the 1953 suit plaintiff’s counsel said: “We admit this. We filed it and we settled it.” And we read six pages of cross-examination on this subject before we find the first objection (if such it may be termed) by plaintiff’s counsel: “Don’t interrupt her (plaintiff). Let her answer the question you just asked her.” With consideration of this point neither invoked nor justified under Rule 79.04, plaintiff may not have appellate review of the testimony pertaining to the 1953 suit. Hopper v. Conrow, Mo., 347 S.W.2d 896, 902 [6]; Faught v. Washam, Mo., 329 S.W.2d 588, 599 [17].

Another assignment is that “the court erred in overruling plaintiff’s motion for new trial because the defendant was permitted to offer evidence plaintiff received compensation and accident and health benefits from her employer, a collateral source purchased by plaintiff wholly independent of wrongdoer contribution or employment.” There was no showing that plaintiff had received either workmen’s compensation or accident benefits. However, there was evidence (first developed in cross-examination of plaintiff) that Spencer Chemical Company, plaintiff’s employer at the time of accident, had a noncontributory sick leave plan which provided “after one year of employment sick leave of twelve weeks full pay and ten weeks at sixty per cent of full pay for any one ailment”; that plaintiff was not eligible for benefits under this plan until she had worked past August 5, 1958 (the first anniversary of her employment by Spencer), which was fifteen days after the accident of July 21, 1958; and that plaintiff worked through August 8, 1958, and thereafter drew, under the sick leave plan, twelve weeks at full pay and about five weeks at sixty per cent before she returned to work on December 9, 1958. The quoted point apparently was directed at this evidence, although benefits under the sick leave plan certainly were not (as the point charges) from a source either “purchased by plaintiff” or “wholly independent of * * employment.”

As we have noted, the history taken by Dr. Barnard (a medical doctor of plaintiff’s choice) on August 1, 1958, included the patient’s then statements that she had had “occasional back trouble for some time” and that “her present difficulty in the upper back started about two* weeks ago without any particular known cause.” When plaintiff laid off work on Friday, August 8, 1958 (the third day after she had become eligible for benefits under the sick leave plan), she asked Dr. Barnard to report to Spencer, and the doctor did so report on August 11, 1958. Plaintiff’s counsel, employed in the meantime, sought and obtained a written medical report from Dr. Barnard under date of September 26, 1958, in which report the doctor included the above-quoted statements from the history initially given by plaintiff on August 1, 1958. During a visit to Dr. Barnard’s office on October 11, 1958, plaintiff changed her history, so the doctor testified and his office records showed, in this wise: “The patient now gives the history of having been in a car wreck on July 21, 1958. She had had no discomfort in her neck prior to the accident. * * * ”

Under this point, plaintiff cites and relies upon the general rule thus stated in 25 C.J.S. Damages § 99, p. 647: “The wrongdoer is not entitled to have the damages to which he is liable reduced by proving that plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him” — a principle which, as plaintiff points out, has found recognition and application in the reported cases in this jurisdiction. Siemes v. Englehart, Mo.App., 346 S.W.2d 560, 563-564 [1]; Joshmer v. Fred Weber Contractors, Inc., Mo.App., 294 S.W.2d 576, 586 [16] ; Burens v. Wolfe Wear-U-Well Corp., 236 Mo.App. 892, 158 S.W.2d 175, 178-179 [5]. See also Kickham v. Carter, Mo., 335 S.W.2d 83, 89-90 [3-5]; Baker v. Fortney, Mo.App., 299 S.W.2d 563 [1]; Wells v. Thomas W. Garland, Inc., Mo.App., 39 S.W.2d 409, 411-412 [7, 8], But defendant’s position has been and is that the evidence under attack was not offered for the purpose or on the theory of mitigation of damages, but rather as bearing upon plaintiff’s credibility and as relevant upon the basic and bitterly-contested factual issue whether plaintiff’s physical condition (whatever it may have been) was caused solely and directly by the rear-end accident of July 21, 1958. And, in this connection, defendant argues that plaintiff’s initial purpose was to lay the foundation for a claim for sick leave benefits and to obtain Dr. Barnard’s support therefor; that the claim against instant defendant hatched from an afterthought; and that, for the same alleged disability, plaintiff drew sick leave benefits from her employer on the theory that such disability was not traumatic in origin and in this suit seeks damages from defendant on the contrary theory that such disability was traumatic in origin.

“The ultimate purpose of any trial upon an issue of fact is the ascertainment of truth—the accurate determination of the actual facts in the controversy” [Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 16, 160 S.W.2d 740, 742, 142 A.L.R. 666], and one of the most effective and valued means provided in this judicial search for the truth is the right of cross-examination. Hungate v. Hudson, 353 Mo. 944, 185 S.W. 2d 646, 649 [6], 157 A.L.R. 598; Kearns v. Sparks, Mo.App., 260 S.W.2d 353, 360 [16]. So it is said in civil cases that, although the trial court is invested with a substantial measure of discretion as to the scope and extent of permitted cross-examination (Hilton v. Thompson, 360 Mo. 177, 227 S.W.2d 675, 682 [15]; Orr v. Shell Oil Co., 352 Mo. 288, 177 S.W.2d 608, 615 [26]), wide latitude should be accorded in cross-examination, particularly of an adverse party who offers himself (or herself) as a witness (Maul v. Filimon, Mo.App., 315 S.W.2d 859, 866 [8]; Houfburg v. Kansas City Stock Yards Co. of Maine, Mo., 283 S.W.2d 539, 548-549 [21]), and that, generally speaking, anything having a legitimate tendency to test or shed light on the accurary, veracity or credibility of an adverse witness or party may be shown on cross-examination. Roberts v. Emerson Electric Mfg. Co., Mo., 362 S.W.2d 579, 584 [7]; Merk v. St. Louis Public Service Co., Mo., 299 S.W.2d 446, 449; Farmer v. Kansas City Public Service Co., Mo.App., 186 S.W.2d 766, 769 [4]; Massman v. Muehlebach, 231 Mo.App. 72, 95 S.W.2d 808, 813 [6].

We are satisfied that, in the particular and peculiar circumstances of this case, the evidence of which plaintiff complains in the point under discussion (in brief, that plaintiff applied for and drew sick leave benefits from August 10 to December 8, 1958) did bear upon plaintiff’s credibility and was relevant upon the issue raised by plaintiff’s claim (and defendant’s denial thereof) that the accident of July 21, 1958, had been the sole and direct cause of her alleged disability. Jackson v. Thompson, 358 Mo. 1001, 218 S.W.2d 97, 98 [1]. Such evidence being relevant and material for those purposes, that it would have been inadmissible in mitigation of damages did not require its exclusion. Louis Steinbaum Real Estate Co. v. Maltz, Mo., 247 S.W.2d 652, 656 [8], 31 A.L.R.2d 1052; In re Jamison’s Estate, Mo., 202 S.W.2d 879, 884 [9]. Plaintiff’s counsel properly might have requested an instruction limiting the purposes for which this evidence should have been considered (Martin v. Mercantile Trust Co.; Mo., 293 S.W.2d 319, 329 [14]); but, although the court specifically stated that an appropriate limiting instruction would be given if presented, no such instruction was offered. Cf. Grimm v. Gargis, Mo., 303 S. W.2d 43, 51, 74 A.L.R.2d 599; Brown v. Kroger Co., Mo.App., 358 S.W.2d 429, 434 [7]. The trial court did not err in admitting the evidence under consideration.

The third evidence point complains of the testimony of Jerry Bowman, the insurance adjuster, concerning his conversations and negotiations with plaintiff for settlement of her claim following the accident of February 3, I960. But, before Bowman was called as a witness for defendant, essentially the same facts (to which Bowman subsequently testified) already had been developed and presented, without interposition of a single objection or motion to strike by plaintiff’s counsel> in the course of searching cross-examination of plaintiff which (in respect of this subject matter) covers six pages of the transcript. Plaintiff should not be heard to complain of Bowman’s testimony, where substantially the same facts theretofore had been received in evidence without objection. State ex rel. State Highway Commission v. Warner, Mo.App., 361 S.W.2d 159, 164 [7], and cases collected in footnote 3.

If we were to treat of this point on its merits, we would be impelled to rule it against plaintiff. For, with plaintiff upon trial attributing the “burning sensation” in her left arm to the accident of July 21,1958, and seeking damages from instant defendant therefor, evidence that, in discussions and negotiations with Bowman, plaintiff had attributed the same condition to the accident of February 3,1960, was admissible for two reasons, namely, (1) because it bore upon plaintiff's credibility and (2) because, with plaintiff seeking to recover in this suit for permanent injury and disability alleged to have resulted from the accident of July 21, 1958, and conceding that she also had unsettled claims for injury and disability alleged to have resulted from the accident of February 3, 1960 (and from the accident of September 25, 1959), the jury would have been charged (in the event of a finding for plaintiff on the issue of liability) with the further duty of determining what portion of plaintiff’s alleged injury and disability was the result of, and thus allocable to, each of the accidents and, in that delicate and difficult determination, would have needed and would have been entitled to have had all available competent evidence which would have shed light upon that vexing problem. Turner v. Yellow Cab Co. of Springfield, Mo.App., 361 S.W.2d 149, 154-155 [2-4], and cases there cited.

Plaintiff next asserts that defendant’s instructions 4 and 7 were erroneous because they failed to hypothesize the “facts in evidence * * * essential for the jury to find for defendant.” With no particularization of the “essential” facts (either in the point itself or in the argument section of the brief), this point presents nothing for our consideration. Sides v. Contemporary Homes, Inc., Mo.App., 311 S.W.2d 117, 121-122 [10]; Catanzaro v. Duzer, Mo.App., 329 S.W.2d 257, 261 [7]; Anderson v. Welty, Mo.App., 334 S.W.2d 132, 139 [13], and cases cited in footnote 10. Furthermore, no specific objection to any instruction having been made either before submission to the jury or in the motion for new trial, the alleged error in instructions 4 and 7 was not preserved for appellate review anyway. Rules 70.02 and 79.03; Hanff v. St. Louis Public Service Co., Mo., 355 S.W.2d 922, 926 [4]; O’Brien v. City of St. Louis, Mo., 355 S.W.2d 904, 908 [8]; Adair v. Cloud, Mo., 354 S.W.2d 866, 871 [5]; Hartz v. Heimos, Mo., 352 S.W.2d 596, 602 [5].

This brings us to the final point which assigns error “because of prejudicial and inflammatory argument.” The questioned argument dealt, generally speaking, with the evidence concerning plaintiff’s 1953 suit, her sick leave benefits paid by Spencer from August 10 to December 8, 1958, and her claims for alleged personal injuries by reason of the accidents of September 25, 1959, and February 3,1960; and the obvious and overriding purpose of the argument was to demonstrate plaintiff’s want of credibility. We do not extend this opinion by detailing the assailed argument, for at the time plaintiff’s counsel offered no objection of any character. Under the general rule that, when counsel do not object to allegedly improper argument at the time it is made, they will not be heard to object on appeal, nothing pertaining to the argument in this case has been preserved and presented for appellate review. Davis v. Illinois Terminal R. Co., Mo., 326 S.W.2d 78, 86 [8]; Enyart v. Santa Fe Trail Transp. Co., Mo., 241 S.W.2d 268, 270-271 [4]. Consideration of this point is neither invoked nor justified under Rule 79.04; but, if we were reviewing the argument under that rule permitting reversal and remand for “(p)lain errors affecting substantial rights * * * when the court deems that manifest injustice or miscarriage of justice has resulted therefrom,” we could find no reversible error. Cf. Kelly v. Terminal R. Ass’n. of St. Louis, Mo., 315 S.W.2d 699, 704 [5]; Birmingham v. Coen, Mo., 320 S.W.2d 509, 510 [2, 3]; Fisher v. Williams, Mo., 327 S.W.2d 256, 263-264 [11-13].

The judgment for defendant should be and is affirmed.

All concur.