author: BLAIR, Judge.

text:
    Helen M. HOGSETT, Plaintiff, William D. Cosgrove, Movant-Appellant, v. Joseph R. HOGSETT, Defendant-Respondent.
    No. 24560.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court. Denied Dec. 5, 1966.
    Application to Transfer Denied Jan. 9, 1967.

      Thomas A. Sweeny, Kansas City, for movant-appellant.
    Marshall W. Lyons, Kansas City, for respondent.
   BLAIR, Judge.

On this appeal the facts relevant to a decision are not in dispute and the questions presented are purely legal ones. In September, 1964, Helen M. Hogsett commenced a divorce suit against Joseph R. Hogsett and filed a motion for “temporary alimony, suit money and attorney’s fees”. For more than a year thereafter the parties and their attorneys engaged in extensive negotiations in an effort to reach an agreement on the amount to be paid Mrs. Hogsett if a divorce was ultimately granted. Mrs. Hogsett died on October 1, 1965, while the divorce suit was still pending. The motion for temporary alimony, suit money and attorney’s fees had never been presented to the court. On October 26, 1965, a suggestion of Mrs. Hogsett’s death was filed by Mr. Hogsett in the Circuit Court where the divorce suit had been pending. On October 12, 1965, the Probate Court of Jackson County entered an order refusing letters of administration in the estate of Mrs. Hogsett. From the- commencement of the divorce suit until Mrs. Hogsett’s death she was represented by Mr. William D. Cosgrove, an attorney-at-law. On January 5, 1966, Cosgrove filed what he regards as a motion in the divorce proceeding: “Motion Of William D. Cosgrove To Be Substituted As A Party Plaintiff Herein And For A Court Order Allowing Him Attorney’s Fees And Reimbursement For Expenses Necessarily Incurred In The Prosecution Of The Divorce Action.” He alleged that the motion for temporary alimony, suit money and attorney’s fees filed in September, 1964, was still pending before the court and that his claim for “attorney’s fees and expenses” incurred in the prosecution of the divorce suit was not “extinguished” by the death of Mrs. Hogsett. He requested the court to enter an order substituting him as the personal representative of Mrs. Hogsett, in accordance with Civil Rule 52.12(a), V.A.M.R. and Sec. 507.100, subd. 1.(1), V.A.M.S., and to award him reasonable attorney’s fees for services rendered Mrs. Hogsett during her lifetime and reimbursement for expenses (really suit money) he necessarily incurred in the prosecution of her divorce suit, all in the total amount of $15,000.00.

On February 1, 1966, Cosgrove filed what he regards as a motion in the divorce proceeding: “Motion Of William D. Cos-grove To Substitute William S. Morris, Administrator of the Estate Of Helen M. Hog-sett, As An Additional Party Plaintiff Herein And For A Court Order Allowing Cosgrove Reasonable Attorney’s Fees And Reimbursing Him For Expenses Necessarily Incurred In The Prosecution Of The Divorce Action”. (Emphasis Supplied) The motion is referred to in the record as an “alternative motion”. In it he alleged that the Probate Court of Jackson County had entered an order setting aside its previous order refusing letters of administration in the estate of Mrs. Hogsett and had granted such letters to William S. Morris, Public Administrator on January 26, 1966. He requested the court to substitute the Public Administrator as an additional party plaintiff in the divorce proceeding, as the duly appointed and qualified personal representative of Mrs. Hogsett, in accordance with Civil Rule 52.12 (a) and Sec. 507.100, subd. 1.(1), V.A.M.S., and to enter an order awarding him (Cosgrove) reasonable attorney’s fees for services rendered Mrs. Hogsett during her lifetime and reimbursement for expenses (again suit money) he necessarily incurred in the prosecution of her divorce suit, all in the total amount of $15,000.00.

Thereafter Cosgrove presented both of his motions simultaneously to the trial court. At the outset, counsel for Mr. Hogsett objected to any evidence in support of the motions on the ground that the court’s jurisdiction had been terminated by the death of Mrs. Hogsett. Reserving its ruling on this objection, the court heard evidence in support of the motions. Cos-grove established that from the commencement of the divorce suit until the death of Mrs. Hogsett he had rendered her valuable legal services. Beyond any doubt he represented her with energy, skill and fidelity. The court denied both motions and assigned as its reason that the death of Mrs. Hog-sett caused the divorce suit to abate and that it therefore had no jurisdiction to entertain and adjudge the motions. Cosgrove appeals.

The allowances Cosgrove is seeking fall within the broad category of alimony, for allowances for support of the wife, suit money and attorney’s fees are alimony. Anderson v. Anderson, Mo.App., 404 S.W.2d 206, 209; Howard v. Howard, Mo.App., 300 S.W.2d 853, 855; Noll v. Noll, Mo.App., 286 S.W.2d 58, 61; Knebel v. Knebel, Mo.App., 189 S.W.2d 464, 466; Waters v. Waters, 49 Mo. 385, 388. The authority to award alimony, whether permanent or pendente lite, is found in Sec. 452.070, V.A.M.S., whose pertinent part reads: “When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, * * * as, from the circumstances of the parties and the nature of the case, shall be reasonable, * * *. The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper, and the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases.” It is settled that allowances for alimony and all it embraces must be made in a divorce proceeding by authority of Sec. 452.070 V.A.M.S., or not at all. Such allowances cannot be made in any other proceeding. Fiorella v. Fiorella, 241 Mo.App. 180, 240 S.W.2d 147, 151; Hamilton v. Salisbury, 133 Mo.App. 718, 114 S.W. 563, 564; Isbell v. Weiss, 60 Mo.App. 54, 56; Knebel v. Knebel, Mo.App., 189 S.W.2d 464, 466. Moreover, by the clear terms of Sec. 452.070, V.A.M.S. such allowances must be decreed to the wife and no allowances can be made to her attorney for the decisive reason that her attorney is not a party to the suit and cannot be in the absence of an authorizing statute and there is none. Anderson v. Anderson, supra, 404 S.W.2d 1. c. 209; Howard v. Howard, supra, 300 S.W.2d 1. c. 855; Noll v. Noll, supra, 286 S.W.2d 1. c. 61; Knebel v. Knebel, supra, 189 S.W.2d 1. c. 466; Kaltwasser v. Kaltwasser, Mo.App., 197 S.W.2d 102, 104; Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W.2d 274, 276.

Cosgrove cites Hamilton v. Salisbury, 133 Mo.App. 718, 114 S.W. 563, Isbell v. Weiss, 60 Mo.App. 54, Fiorella v. Fiorella, 241 Mo.App. 180, 240 S.W.2d 147, Fullhart v. Fullhart, 109 Mo.App. 705, 83 S.W. 541, and decisions from other jurisdictions to support his claim that the trial court should have granted his motion for an attorney’s fee and reimbursement for expenses necessarily incurred in the prosecution of the divorce suit. Sufficient it is to say here that in all of the above decisions by the courts of this state which he cites the award was made to the wife and not to her attorney and that decisions from other jurisdictions at variance with the settled rule in this state cannot be followed.

Cosgrove cites also Waters v. Waters, 49 Mo. 385, a divorce proceeding, as authority for an allowance directly to him. It is true that the Supreme Court stated in the first paragraph of its opinion in Waters that the trial court “allowed” the attorney for the wife “the sum of $40, which was taxed in the costs against the plaintiff”. Holding that “under our practice there is no warrant for taxing counsel fees in a bill of costs except in partition”, the court was express in saying that the award for attorney’s fees should have been made under authority of Wagn.Stat., p. 535, Sec. 12, which then read: “The court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases” (the same provision is embraced in Sec. 452.070, V.A.M.S., supra). “The allowance, then, under consideration should have been made to the defendant in her own name of a reasonable sum to meet the expenses of the suit, leaving her to make her own terms with her own counsel * * Nonetheless, it finally said “Nothwithstanding the irregularity in the manner of making the allowance, the plaintiff is not injured by it. The amount is not shown to be excessive, nor is it misappropriated. To reverse the judgment in order to allow the court to change the form of the allowance, is not called for by any considerations of injustice in the judgment as it now stands, and it will be affirmed.” We discover no instance where any appellate court of this state has ever regarded Waters as a precedent authorizing an allowance of attorney’s fees directly to counsel in a divorce suit, and neither do we. We regard Waters only as an expedient disposition of a single case with the admonition that attorney’s fees should be allowed in all future divorce proceedings to the wife and not to the attorney. Obviously, all other courts speaking on this subject have regarded it in the same light as evidenced by the unbroken line of decisions we have cited above.

Cosgrove asserts that Civil Rule 52.12 (a) and Sec. 507.100, subd. 1(1), V.A.M.S. are authority for him to become a party to the divorce proceedings and to obtain an order making allowances directly to him. It is true that the civil rule and the statute both declare that if a party dies and the claim involved is not thereby “extinguished”, the court may order substitution of the “proper parties” on motion by the successors or representatives of the deceased party or by any party. There is no suggestion in the civil rule or the statute that Cosgrove is or can be a proper party and we have established that he is not and cannot be in the absence of an authorizing statute. None exists.

Cosgrove asserts that “an application for counsel fees in a divorce action is an independent proceeding” and for that reason the trial court was authorized to make the allowances he seeks directly to him. He cites State ex rel. Gercke v. Seddon, 93 Mo. 520, 6 S.W. 342; Libbe v. Libbe, 166 Mo.App. 240, 148 S.W. 460; Meredith v. Meredith, Mo.App., 151 S.W.2d 536; Noll v. Noll, Mo.App., 286 S.W.2d 58; Gross v. Gross, Mo.App., 319 S.W.2d 880, but he fails to tell us how they aid him. Typical of all of these decisions is State ex rel. Gercke v. Seddon, supra, which says “The power of the court to order and enforce an allowance for alimony pendente lite, though an adjunct of the action of divorce, is an independent proceeding, standing upon its own merits, and in no way dependent upon the merits of the issues in the divorce suit, or in any way affected by the final decree upon those merits.” There are decisions other than those cited which describe such a proceeding in the same way. However, what the courts were saying in all of those decisions was only that a proceeding resulting in an order allowing or denying alimony pendente lite is an “independent proceeding” in the sense that the order is appealable, regardless of the merits or final outcome of the divorce suit, and that the order becomes final unless an appeal is prosecuted. The statements in those decisions obviously are not a repudiation of the rulings of our appellate courts that alimony pendente lite and all it embraces can be allowed only in a divorce suit by authority of the divorce laws and they are not authority for allowing an attorney to become a party to a divorce suit and to have allowances made directly to him.

For the foregoing reasons alone, as well as others we will next discuss, Cos-grove’s first motion filed January 5, 1966, seeking to have himself substituted as a party plaintiff and praying for an order allowing him attorney’s fees and reimbursement for expenses necessarily incurred in the prosecution of the divorce suit, was properly denied by the trial court.

We next consider Cosgrove’s second motion filed February 1, 1966, requesting the court to substitute the public administrator as an additional party plaintiff in the divorce proceeding, as the duly appointed and qualified personal representative of Mrs. Hogsett, and to enter an order awarding him (Cosgrove) attorney’s fees and suit money and we consider further Cosgrove’s first motion with which we have just dealt. Cosgrove’s second motion did not seek any allowance to the public administrator to become a part of the assets of the estate of Mrs. Hogsett and the public administrator sought none. All that was sought was an allowance to Cosgrove. Somehow he thought that the mere presence of the public administrator in the proceeding, without more, would authorize an allowance to himself, although why this might be true is not suggested in any way. Obviously, or so it seems to us, the actual movant in the second motion was Cos-grove alone seeking an allowance for himself alone. On this account, the reasons requiring a denial of his first motion ought to require a denial of his second motion. However, we do not choose to dispose of this appeal on this ground.

We inquire whether the trial court was correct in ruling that the death of Mrs. Hogsett caused the divorce suit to abate and that it therefore had no jurisdiction to entertain and adjudge the motions. Cosgrove contends “that the death of Mrs. Hogsett did not abate appellant’s claim for counsel fees.” His reliance is on Waters v. Waters, 49 Mo. 385; Dees v. Dees, Mo.App., 258 S.W.2d 243; Hamilton v. Salisbury, 133 Mo.App. 718, 114 S.W. 563; Isbell v. Weiss, 60 Mo.App. 54; Fiorella v. Fiorella, 241 Mo.App. 180, 240 S.W.2d 147; Fullhart v. Fullhart, 109 Mo.App. 705, 83 S.W. 541. It suffices to say that there is nothing in Hamilton, Isbell, Fiorella or Fullhart that furnishes any support for Cosgrove’s position and that an analysis of those rulings would only prolong this opinion unduly.

In Waters, the husband sued the wife for divorce. The wife applied for an attorney’s fee. Before the allowance could be made the husband dismissed his suit. Nevertheless, the trial court, following the dismissal, allowed an attorney’s fee and the Supreme Court affirmed saying “This, it may be said, was not an order pending the suit, for the reason that while the court had the matter under consideration the plaintiff dismissed his suit. I cannot imagine that he could defeat the application in this way, although the fact that the prosecution was to end should affect the amount to be allowed. If the friends of the wife gave her such credit as to enable her to properly appear to the suit, trusting to her ability to obtain an allowance to reimburse them after she had appeared and applied for the proper sum, the application is not only made pending the suit, but it would be a fraud upon her rights to permit the husband to defeat it by then dismissing the proceeding.” In Dees, the St. Louis Court of Appeals, in a similar case, followed Waters and affirmed an allowance of an attorney’s fee to the wife after the husband dismissed his suit. In neither Waters nor Dees did the courts deal with the question whether an attorney’s fee could be awarded to the wife following dismissal of the suit and after the dismissal became final.

In Schenberg v. Schenberg, Mo.App., 307 S.W.2d 697, the wife sued for separate maintenance and the husband filed an answer and cross bill for divorce. The wife filed an application for an allowance for attorney’s fees. At the hearing on the merits, the husband dismissed his cross bill for divorce and the court, after hearing the evidence on the petition for separate maintenance, dismissed it for “failure of proof”. No order was made on the application for attorney’s fees. No motion for a new trial was filed and no appeal was prosecuted. The dismissals were entered on April 30, 1956. On May 9, 1956, the court conducted a hearing on the wife’s application for attorney’s fees and took it under advisement. It failed to act on the application until after the lapse of thirty days following the dismissals at which time they became final. On August 14, 1956, the court did finally make an order allowing attorney’s fees and directed its entry nunc pro tunc. On appeal the St. Louis Court of Appeals reversed saying “There is nothing to which jurisdiction to allow attorneys’ fees pendente lite can attach when jurisdiction over the principal case is lost. * * * Temporary allowances pendente lite cannot be made after final decree or dismissal, either in suits for separate maintenance * * * or divorce cases.” Obviously, the word “final” was applied both to a final decree on the merits and a dismissal after it becomes final. The court cited numerous decisions from our courts and from courts of other jurisdictions. Its reasoning was that divorce suits are no longer pending after final decree or final dismissal and that thereafter courts have no jurisdiction of the parties or of the subject matter of the suit. The court took notice of Waters and Dees. “We are not unmindful of Waters v. Waters, 49 Mo. 385, followed by us recently in Dees v. Dees, Mo.App., 258 S.W.2d 243, holding that the dismissal of a divorce petition by a husband while the application of the wife for a temporary allowance was pending did not defeat the wife’s claim, which could thereafter be asserted; that under those circumstances the application is not only made pending the suit but it would be a fraud upon the wife to permit the husband to defeat her rights by dismissing the proceeding. These cases are clearly distinguishable from the instant situation.” It is worthy of note that Dees and the case we are discussing were both written by the same author. In Williams v. Williams, Mo.App., 349 S.W.2d 422, the same court of appeals reaffirmed this Schenberg ruling that courts have no jurisdiction to grant an attorney’s fee after a final decree or a final dismissal because “the jurisdiction of the court over the principal case has been lost.” We find no contrary ruling and we agree entirely with the St. Louis Court of Appeals for we have ruled the same way. Fox v. Fox, Mo.App., 312 S.W.2d 362.

Beyond question, the rule in this state is that a suit for divorce abates at the time of the death of either spouse. Young v. Young, 165 Mo. 624, 65 S.W. 1016; Heil v. Rogers, Mo.App., 329 S.W.2d 388; Shepler v. Shepler, Mo.App., 348 S.W.2d 607; Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841; State ex rel Walker v. Crouse, Mo.App., 205 S.W.2d 749; In Re Wakefield, 365 Mo. 415, 283 S.W.2d 467. Thereafter there is no suit for divorce pending. The overwhelming weight of authority in this country is to the same effect. 27A C.J.S. Divorce § 100, p. 348; 24 Am.Jur.2d, Divorce and Separation, Sec. 182; Nelson, Divorce and Annulment, 2d Ed., Vol. 3, Sec. 27.10, p. 111; Kesser, Marriage and Divorce, 3rd Ed., Sec. 532, p. 576; Schouler, 6th Ed., Marriage, Divorce, Separation and Domestic Relations, Sec. 1677, p. 1678; Annotations: 104 A.L.R. 654, 158 A.L.R. 1206. Our research has discovered no decision by our appellate courts, and none has been presented, squarely holding that the abatement of a divorce suit resulting from the death of the wife forecloses an allowance for attorney’s fees. This is of no consequence. What is of consequence is that the death of either spouse abates the entire suit, and all of its features, and thereafter, we repeat, no divorce suit is pending. Nevertheless, Cosgrove argues that the decisions by our appellate courts do not apply to his motions for an allowance of attorney’s fees and expenses because those decisions, he says, embrace only instances where our appellate courts (1) denied courts the right to enter a decree of divorce nunc pro tunc after the death of one of the parties and the abatement of the divorce suit, and (2) denied courts the right to enter an order modifying a divorce decree awarding custody of children after the death of one of the parties and the abatement of the divorce suit. He is quite right in his description of those rulings but we see no merit in the distinction he desires us to make. Those rulings cannot be isolated from the broad rule of abatement in divorce suits in this way. Their force cannot be confined to their peculiar or individual fact situations. All were grounded on the broad rule that the death of one of the parties to a divorce suit results in the immediate abatement and final termination of that suit and ousts the court of all jurisdiction of the person of the parties and of the subject matter of the suit and of all right to make any further order in the suit. To put it otherwise, those rulings mean that the abatement and final termination of the divorce suit which results as a consequence of the death of one of the spouses entirely destroys the divorce suit and leaves no divorce suit in which the court can make any order at all.

We have demonstrated that although an application for attorney’s fees for services to the wife in a divorce proceeding is described as “an independent proceeding”, it must be granted in the divorce proceeding or not at all. We have demonstrated that attorney’s fees, however deserved, cannot be granted after a final decree or a final dismissal of the divorce proceeding because the “jurisdiction of the court over the principal case has been lost” and there is then no divorce proceeding pending. By the same reasoning, Cosgrove’s motions are not motions in a pending divorce proceeding because the jurisdiction of the court over the entire cause entitled “Hogsett v. Hogsett” was lost by the abatement and final termination of that suit as a result of the death of Mrs. Hogsett and regrettably no divorce proceeding is pending in which the allowances he seeks can be made. We cannot follow the decisions he cites from other jurisdictions which he argues to be at variance with what we hold to be the abatement rule in this state. We must follow the rule long established in this state. We do.

For all of the reasons we have announced, the trial court properly denied both of Cosgrove’s motions and the judgment must be affirmed. It is so ordered.

All concur.

      . Briggs v. Briggs, 215 N.C. 78, 1 S.E.2d 119; Ballard v. Caperton, (Ky.) 2 Metc. Rep. 412; Gunther v. Gunther, (Tex.Civ.App.) 301 S.W.2d 207 1. c. 208; Griffith v. Speaks, 111 Ky. 149, 63 S.W. 465; United States v. Reis, 10 Cir., 214 F.2d 327; Etz v. Perlman, 103 N.J.Eq. 425, 153 A. 549; Page v. Page, 124 App.Div. 421, 108 N.Y.S. 864.

      . Civil Rule 52.12(a): “If a party dies and the claim is not thereby extingunished, the court shall on motion order substitution of the proper parties. The motion for substitution may be made by the successors or representatives of the deceased party or by any party and, together with the notice of the hearing, shall be served on the parties as provided in Rule 43.-01, and upon persons not parties in the manner provided for the service of a summons.” Idem Sec. 507.100, subd. 1(1), V.A.M.S. from which Civil Rule 52.-12(a) is derived.

      . Briggs v. Briggs, 215 N.C. 78, 1 S.E.2d 119; Ballard v. Caperton, (Ky.) 2 Metc.Rep. 412; Gunther v. Gunther, (Tex.Civ.App.) 301 S.W.2d 1. c. 208; Griffith v. Speaks, 111 Ky. 149, 63 S.W. 465; United States v. Reis, 214 F.2d 327; Etz v. Perlman, 103 N.J.Eq. 425, 153 Atl. 549; Page v. Page, 124 App.Div. 421, 108 N.Y.S. 864.


source: Caselaw Access Project

author: TOWNSEND, Commissioner.

license: Public Domain

text:
    LOUISIANA FARM SUPPLY COMPANY, Plaintiff-Appellant, v. FEDERAL MUTUAL INSURANCE COMPANY, Defendant-Respondent.
    No. 32361.
    St. Louis Court of Appeals. Missouri.
    Nov. 15, 1966.

      Charles Clayton, Clayton & Mattern, Clarksville, for plaintiff-appellant.
    Mcllroy & Millan, Bowling Green, for defendant-respondent.
   TOWNSEND, Commissioner.

Action on an insurance policy, headed “Comprehensive Liability Policy — Combination Automobile and General Liability Form.” Defendant’s motion for summary judgment was sustained. The insured appeals.

Plaintiff’s petition was in six counts, the first five of which alleged errors on the part of plaintiff’s employees in making repairs, successively, on a caterpillar, a diesel tractor, a truck, a Hercules motor and another engine, which the respective owners had left with plaintiff under contracts for repairs. Each such count specified the expense to which the plaintiff had been put in rectifying such errors, alleged the presentation of paid vouchers and other memoranda covering the same to the defendant’s agent and asserts the continuing refusal of defendant to pay each claim so presented. In the sixth count plaintiff alleged vexatious and unreasonable delay, asked damages therefor and for an attorney’s fee of $1000.

The policy was put into evidence by stipulation. Interrogatories were propounded by defendant and answers thereto were returned in due course. Hence the court had before it, in addition to the petition, the answer of defendant and plaintiff’s reply, the policy and the answers to the interrogatories. The award of the summary judgment was based upon the court’s conclusion that plaintiff had not satisfied conditions precedent specified in the policy, namely,

“10. When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable.
12. * * * The insured shall not, except at his own cost, voluntarily make any payments, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident.
13. No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insurer’s obligation to pay shall have been fully determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

We set down in tabular form plaintiff’s answers to the interrogatories:

From this tabulation it is perfectly obvious that in respect to Counts II, III, IV and V the condition precedent of notice “as soon as practicable” was not satisfied.

Plaintiff’s answer as to the date of repairs to the vehicle described in Count I contradicts the allegations of the petition which assert that field repairs were made on May 1, 1962 and May 22, 1962, “when it was discovered that the plaintiff’s mechanic, during the winter overhaul, had inserted the pistons backward in the caterpillar; * * For such repairs plaintiff says it paid $297.41 in November, 1963. Furthermore, the petition alleges that the caterpillar was overhauled in October 1963, at a cost of $320.94, “all due to the mechanics having inserted the pistons backwards ; * *

Interrogatory No. 7 put to plaintiff the question of whether or not voluntary payments or voluntary repairs were made before notification was made to defendant — under each count. The answer: “Count I, no; Count II through V, yes.” As before, it is clear that in respect to Counts II through V, the condition relating to voluntary payments or assumption of obligations was not satisfied.

The petition alleges that plaintiff paid a total of $618.35 for repairs to the vehicle described in Count I. These payments were made to a machinery repair company and although not made until the latter part of 1963 the}' were certainly voluntary in the sense that they were not made with the acquiescence of the defendant and were not made after an adjudication of plaintiff’s liability therefor.

The appellant first maintains that a summary judgment is not available under Supreme Court Rule 74.04, V.A.M.R., because there are issues of material fact in the case. The difficulty with this position is that most of the alleged issues of fact are not issues of fact at all but are issues of law. Such issues the appellant derives from defendant’s answer and the denials thereof contained in plaintiff’s reply. Thus, the answer states that the damages incurred by plaintiff are not insured under the policy; this plaintiff denied. How this presents an issue of fact is a mystery. Similarly plaintiff’s denial of defendant’s allegation that plaintiff’s voluntary payment of some of the claims was in violation of the policy and so barred any action presented no issue of fact. Likewise plaintiff’s contention that its failure to give prompt notice of the items comprehended in Counts II through V was not prejudicial to defendant raises the fundamental question of whether or not a conditional promise of a contracting party is made unconditional by the fact that failure to satisfy the condition does not prejudice the promisor. That certainly is a question of law.

As to Issues of Fact

1. Defendant’s answer asserted that the damages stated in each of plaintiff’s counts are work products of plaintiff and that such damages were caused by the gross negligence of plaintiff’s employees. Plaintiff’s reply denies these allegations. We find such denial inconsistent with the ¿negations of the petition in which plaintiff sets out the following causes of the damages :

As to Count I: Plaintiff’s mechanic inserted the pistons backward in the caterpillar.

As to Count II: Employees of the plaintiff failed to add oil to the diesel tractor.

As to Count III: Employees of the plaintiff inserted the rod inserts upside down in the truck.

As to Count IV: Plaintiff’s employees inserted a detergent oil into the motor, “whereas in fact a non detergent oil was what was required.”

As to Count V: Same as Count IV. Damages “all due to the insertion of the wrong oil.”

Under this head no issue of material fact can be found.

2. Plaintiff maintains that it “clearly stated that it did give prompt and timely notice of the accident contained in Count I to the defendant * * If this refers to a statement—an allegation— contained in the petition, we must say that we do not find such statement therein. The petition shows that repairs were made to the Count I vehicle in May 1962 and that memoranda relating thereto were presented to defendant’s local agent on or about November 15, 1962. The answer to interrogatories shows that defendant was notified of the claim on the latter date. Plaintiff’s reply to defendant’s answer says that “plaintiff contends that it did give prompt and timely notice of the accident contained in Count I * * Thus, we do find an issue of fact here, viz., whether notification was made to defendant “as soon as practicable” after the relative accident occurred, as the policy required.

And so, after winnowing out all the chaff, we find only the last posed question of fact remaining in the picture. We turn to the terms of Rule 74.04 and find in paragraph (c) that it is provided: “Judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Adverting to the contract in the present case, we find that the defendant would come under a duty of performance only if two conditions precedent, among others, were satisfied, namely, notice of claim as soon as practicable and non-payment and non-settlement of a claim by the insured. If either of such conditions is not satisfied, the defendant comes under no duty of performance. Hence, even if plaintiff did give notice of the claim stated in Count I as soon as practicable but did make payment of such claim or assume an obligation therefor without the participation of the defendant, the defendant would come under no duty to pay. Under such circumstances, it would be immaterial whether plaintiff gave the proper notice or not because such facts would show that defendant “is entitled to a judgment as a matter of law.”

Plaintiff’s argument characterizes the coverage of the insurance policy as “indemnity” insurance and not “liability” insurance. In its turn, defendant maintains that the injuries and damages of plaintiff, sustained in the manner stated in the petition, were not risks comprehended within the terms of the policy. The trial court did not rule on this phase of the controversy; nor was there any need to do so. Regardless of the category to which one might consign the policy, the conditions precedent were clearly specified and were applicable; nothing turned upon the type of insurance provided.

The summary judgment was entered in accordance with the terms of Rule 74.04 and 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.

      . All other repairs were made by the plaintiff except for an item shown in the tabulation under date of September 17, 1962.


author: BRADY, Commissioner.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joseph Donald GIBSON, Defendant-Appellant.
    No. 32293.
    St. Louis Court of Appeals. Missouri.
    Nov. 15, 1966.
    Hale W. Brown, Kirkwood, for defendant-appellant.
    Lon J. Lewis, Pros. Atty., Mexico, Mo., for plaintiff-respondent.
   BRADY, Commissioner.

The defendant was charged in the information with the commission of or aiding and abetting the commission of a burglary and with larceny in connection therewith. He was sentenced to one year in the County jail as a result of his conviction for stealing property of the value of less than Fifty Dollars. No briefs have been filed but the record and those assignments of error properly stated in defendant’s motion for new trial are for review by this court on appeal. Criminal Rules 27.20, 28.02, 28.08, V.A.M.R.; State v. Euge, Mo.App., 359 S.W.2d 369.

Among other allegations of error properly presented for our ruling is defendant’s contention the trial court erred in not sustaining defendant’s motion for a directed verdict of acquittal offered at the close of all the evidence in the case. In this regard defendant’s position as stated in the motion for new trial is that there was no evidence “ * * * he had aided or abetted any one else * * * in stealing.” This is the only ground which he advances to support his contention the evidence was insufficient. When it is urged that the evidence was insufficient to make a sub-missible case, this court will accept as true all of the evidence in the record tending to show the defendant’s guilt, whether that evidence be circumstantial or direct in nature, together with all favorable inferences reasonably to be drawn therefrom, and disregard defendant’s contradictory evidence, if any. State v. Armstrong, Mo., 361 S.W.2d 811.

Stated in the light required of us the evidence shows that the defendant, Gerald Hilkemeyer, Larry Hilkemeyer, Jim Jacobi, Mike Jacobi, and Virgil Erwin had been out on a drinking spree in the late afternoon and early evening of the night the alleged burglary and stealing took place. They had traveled around to several towns in central Missouri drinking and talking to friends and, later that night, returned to Mexico, Missouri. Gerald Hilkemeyer testified that while they were driving down a street in that city Jim Jacobi told him to stop the car, stating “ * * * ‘I’m going to go steal a car.’ * * * Jacobi made this statement when they were about one and a half miles away from a used car lot where they later stopped and let Jacobi and the defendant out. The witness Virgil Erwin corroborated this testimony and also testified that Jacobi and the defendant came back from the car lot together and that Jacobi was then carrying a leather briefcase which he put in the car. The defendant testified that upon returning to the automobile Jacobi stated he had kicked out a window of the office building located on this used car lot and that this leather briefcase had been taken from the office. The briefcase contained a notary public seal, a crescent wrench, a pair of pliers, a screwdriver, some ball point pencils, and some business forms. This briefcase was found in the automobile in which the defendant, the witnesses whose testimony is referred to above, and the other persons here involved were riding when the defendant was arrested. Except for the notary seal these items were exhibited to the jury.

The defendant’s other allegations of error deal with the giving of Instructions 3 and 4. In its pertinent parts Instruction No. 3 informed the jury that if they found the defendant not guilty of burglary but did find that the defendant and James Jacobi, while acting in concert with each other, did steal and carry away with intent to convert to their own uses and to permanently deprive the owners thereof the articles mentioned in evidence of the value of less than Fifty Dollars, then they were to find the defendant guilty of stealing property of the value of less than Fifty Dollars and assess his punishment at one year in the County jail or a fine of not more than One Thous- and Dollars, or both. Instruction No. 4 informed the jury that they could find the defendant guilty of both burglary and stealing, or acquit him of both offenses, or find him guilty of burglary and acquit him of stealing, or acquit him of burglary and find him guilty of stealing property of the value of less than Fifty Dollars. The jury found the defendant not guilty of burglary and guilty of stealing property of the value of less than Fifty Dollars.

In dealing with defendant’s first allegation of error it is unnecessary to rehash the facts stated earlier in this opinion bearing upon defendant’s guilt. In view of the limited nature of defendant’s attack upon the evidence it is enough to state that the evidence was sufficient to authorize submission to the jury of the State’s theory the defendant acted in concert with James Jacobi to steal the briefcase and also substantial and sufficient to support the verdict reached by the jury..

We pass now to the more serious aspect of this appeal. The defendant’s attack upon Instructions 3 and 4, as stated in the motion for new trial, is “ * * * the property should have been shown to have some value, at least 1 cent and the jury could not weigh the evidence as to the value of these articles * * His theory is that absent proof the articles stolen had some value the defendant cannot be convicted even of stealing less than Fifty Dollars. (See § 560.161, RSMo 1959, V.A.M.S.)

In State v. Stanley, 123 Mo.App. 294, 1. c. 297, 100 S.W. 678, 1. c. 678, the statement is made that “ * * * It is elementary that there must be both allegation and proof of some value of the property alleged to have been stolen to authorize a conviction of larceny. State v. Krieger, 68 Mo. 98. * * * ”. See also 52 C.J.S. Larceny § 97, p. 912. We have no quarrel with that statement as a general rule of law but it does not determine the issue here involved. State v. Stanley, supra, involved the theft of some gloves from a box left in a locomotive. The only evidence of the value of the gloves was that the owner had paid 75‡ for them some time previously. In the sentence immediately following that set out above the court stated the issue it was ruling as follows: “ * * * Is proof of the cost of an article when, as were the gloves, the article itself is exhibited to the jury, any evidence of the value of the article ? * * * The court decided that proof of cost was evidence of value.- The opinion contains a review of other cases which had previously so held. More recent’ cases involving the general question include State v. Supinski, Mo.App., 378 S.W.2d 602, 1. c. 606, where the testimony was as to the original cost of the items stolen, the length of time they were owned, the use to which they were put, and where the items, as in the instant case, were exhibited to the jury. Our reported case law abounds with other cases of this same nature.

State v. Krieger, supra, cited by the court in State v. Stanley, supra, as authority for the statement quoted earlier herein was decided in 1878. The case offers another example of how pure obiter dictum in an opinion can, in time and without careful reading, become accepted as the law of the case in which it was first stated. There the defendant was convicted of stealing a package of spool cotton. The opinion states that the only error in the case is that the court gave an instruction relative to the value of the property stolen stating that there was no evidence whatever as to the value of the spool cotton. However, the court goes on in the opinion to state * * * And even if the instruction complained of had not been given, still the verdict could not be permitted to stand, as under the law then in existence, the property stolen must have equaled or exceeded in value the sum of $10. * * * It is thus apparent that what was involved was a prosecution for grand larceny. Nevertheless, immediately following the sentence in the opinion set out above the court does include the obiter statement that since there was no evidence as to value at all “ * * * a conviction would have been improper for any grade of larceny. * * * ”. It is therefore apparent that State v. Krieger, supra, merely ruled that absent evidence of value of the amount or over the amount stated in the statute for grand larceny, an instruction submitting the value as being of that amount or over is improper and a conviction for that offense must be reversed. The question as to the proof necessary to authorize an instruction and to sustain a conviction for petit larceny was not before the court and the statement contained in the opinion regarding a conviction for “any grade of larceny” is pure obiter.

However, so long as it is not cited as authority in cases of petit larceny we have no quarrel with State v. Krieger, supra. There the court emphasized that there was no evidence whatever of value. It does not appear that the stolen item was ever introduced into evidence and viewed by the jury. Such a situation is far different from that presented to the court in State v. Stanley, supra, and State v. Supinsky, supra. In those cases there was some evidence of value and the issue to be decided therein was essentially the same, albeit resting upon different factual situations, as that in the instant case. It may be stated in this fashion: What constitutes evidence of value? The specific issue presented in the instant case is: Absent any other evidence as to value, can the jury, from examination of the items stolen which were exhibited to it, determine that the property has some value? Or, stated in another fashion, can there be proof of value (not the amount of value as necessary in a prosecution for grand larceny but merely proof of some value as required in petit larceny cases) other than by oral testimony? We think there can be such other proof in cases involving items which are not so unique or unfamiliar as to require expert testimony as to their value, and that in such cases the jury can make a determination the items had some value from an examination of the articles exhibited to them.

State v. Armstrong, supra, 361 S.W.2d 1. c. 817, involved a conviction for stealing in connection with a burglary. The court pointed out that as the defendant had also been convicted of burglary it was only necessary that the evidence as to stealing “ * * * show that the property had some value, * * * As the defendant’s own allegation of error concedes, that is all that is required in the instant case; i. e., proof the items stolen had some value. In State v. Armstrong, supra, the items stolen were three cameras and a Schick razor which were taken out of a plate glass show window in a pawn shop. The court stated, “In determining whether personal property has ‘value,’ and the amount thereof, as the. term is used in Secs. 560.156 and 560.161, RSMo 1959, V.A.M.S., reference, of course, is not to ‘the value to the owner,’ but as to the value of the property on the open market. In this case it appears that the property in question, which was the subject of the larceny, was exhibited in the jewelry window of the Friedman shop and an inference could be drawn that it was being offered for sale. The amount paid for the property by the proprietor of the shop was some evidence of its value and, in addition, the particular items in question'were offered in evidence before the jury and were of the type and kind from which the jury might well judge whether or not they had any value. * * * ” (Emphasis supplied.) Certainly a crescent wrench, a pair of pliers, a screwdriver, and some ball point pens are more within the general knowledge of the jury as to value than were the cameras and razor involved in this case. (State v. Armstrong, supra.)

In State v. Duncan, 336 Mo. 600, 80 S.W.2d 147, a prosecution for burglary, the court at 1. c. 152 stated: “Neither was it necessary to prove in terms that the scissors, clippers, razors, barber chairs, and other equipment in the barber-shop, which was operated as a going concern, had some value. The jury were entitled to infer that fact. * * * We can see no reason the rule should be different in cases of petit larceny.

A case from a sister jurisdiction involving the same point may be found in Lanham et al. v. Commonwealth, 250 Ky. 500, 63 S.W.2d 585, involving the theft of “several” gallons of gasoline. At 1. c. 587 the court stated that it was common knowledge that gasoline “ * * * or other common run of property customarily purchased at a market price has some value, * * * In that case the gasoline was not even exhibited to the jury and the court found that even though there was no oral testimony as to value there was sufficient evidence as to that issue to support a conviction for petit larceny.

We hold that the items stolen here, with the possible exception of the notary public seal which was not exhibited to the jury, were of the type and kind from which the jury might well judge from its own inspection, and absent any oral testimony as to their value, whether or not they were of some value.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment is affirmed.

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


author: WOODSON OLDHAM, Special Judge.

text:
    Olive L. HOFFMAN, Plaintiff-Respondent, v. MAPLEWOOD BAPTIST CHURCH, a Corporation, Defendant, and David F. Crossen, Administrator ad Litem of the Estate of Emil Ritter, Deceased, Defendant-Appellant.
    No. 31832.
    St. Louis Court of Appeals. Missouri.
    Nov. 15, 1966.

      Jesse L. Renderer, St. Louis, for defendant.
    David F. Crossen, Clayton, for defendant-appellant.
    Isaac E. Young, Maplewood, for plaintiff-respondent.
   WOODSON OLDHAM, Special Judge.

Plaintiff Olive L. Hoffman filed suit to reform a note and deed of trust executed by defendant, Maplewood Baptist Church, to Emil Ritter, now deceased, and Olive L. Hoffman in the sum of $19,000.00 from tenancy in common to joint tenancy with right of survivorship. Plaintiff was one of the co-executors of the estate of Emil Ritter and since the other co-executor was not joined, defendant David F. Crossen was appointed administrator ad litem of the estate of the said Emil Ritter, was permitted to in-tervéne in said suit, filed answer and has appealed from the decree of the court reforming the note and deed of trust in favor of plaintiff as prayed in the petition. It is agreed, and the Court so finds, that the amount involved was $9500.00 and that this Court has jurisdiction of this appeal.

Plaintiff’s first amended petition alleges in substance, that plaintiff was a niece of Emil Ritter, deceased, and for several years prior to the death of said Emil Ritter, “cared for the deceased and took care of his household, personal and business affairs.” As a result of the relationship of the parties and the services rendered the deceased agreed to make the plaintiff a joint tenant with the deceased on a proposed note and deed of trust to be executed by the defendant church securing the balance due said deceased in connection with a sale of real estate by deceased to said defendant. It was alleged that deceased stated, prior to and at the time of the sale of the real estate and execution of the note and deed of trust, that the note and deed of trust were to be made out in the names of said Ritter and plaintiff with the right of survivorship and that the proceeds of the note were to go to plaintiff in case of death of said Rit-ter. It was further alleged that the note and deed of trust were made out at the direction of the attorney of the defendant church and its pastor, typed by a clerk in the office of the church and executed by said defendant church prior to the time that it was delivered to said Ritter. That the note and deed of trust were made out in the names of Emil Ritter and Olive L. Hoffman but inadvertently failed to include any provision for survivorship in favor of plaintiff in the event of the death of the said Ritter as previously agreed between the parties. It was further alleged that the parties mistakenly assumed that the note provided that the proceeds of the note would be paid to the survivor of Ritter and Hoffman and that the mistake existed at the time of the execution and delivery of the note to Ritter and that plaintiff did not learn that the wording of the note was contrary to the agreement until after the death of said Ritter. Plaintiff alleged that she was the holder of the note and deed of trust and has had possession since the execution thereof and prayed that the note and deed of trust be reformed so as to make plaintiff a joint tenant with right of sur-vivorship therein.

The answer of the defendant church admitted the allegation of the petition while the answer of defendant Crossen, administrator, in effect admitted the execution of the note and deed of trust to Emil Ritter and Olive L. Hoffman but denied the other allegations of the petition.

We approach the consideration of the evidence in this case fully aware that while we try a suit in equity de novo and reach our own conclusion as to the weight of the evidence: Allen v. Smith, Mo.App., 375 S.W.2d 874, 880; Hampton v. Niehaus, Mo., 329 S.W.2d 794, 800; Trotter v. Trotter, Mo., 316 S.W.2d 482, 484; Masterson v. Plummer, Mo.App., 343 S.W.2d 352, 354; and that the inconsistencies and conflicts in the oral testimony were for the trial chancellor; Allen v. Smith, supra 880; Ethridge v. Perryman, Mo., 363 S.W.2d 696, 701; we are required to and do follow the admonition that due regard should be given to the superior opportunity of the trial chancellor to pass upon and judge the “credibility and characteristics of the witnesses who testified before him.” V.A.M.R. Rule 73.01(d); V.A.M.S. 510.310, subd. 4; Allen v. Smith, supra 880; Peine v. Sater, Mo., 289 S.W.2d 101, 102; Cull v. Pfeifer, Mo., 307 S.W.2d 424, 428; Spaeth v. Larkin, Mo., 325 S.W.2d 767, 771. We are further aware that if we became convinced, upon consideration of all the evidence, that a wrong decision has been made, we should not affirm the judgment. Kansas City Assemblage Co. v. Lea, Mo.App., 405 S.W.2d 241, 247 and cases there cited.

Since this case is heard de novo by this Court and we have the right to reach our own conclusions as to the weight of the evidence, as above stated, we are considering the evidence for the purpose of this appeal, as if all of defendants’ objections as to the admission of testimony should have been sustained (without so deciding) and further are considering the evidence as if all the testimony of plaintiff herself had been refused or stricken (without deciding that all of such testimony was actually inadmissible). We are further considering, for the purpose of this appeal, that the trial court improperly considered testimony that was inadmissible and improper as shown by the Findings of Fact and Law of the trial court, as claimed by defendant, and are considering only the evidence properly admitted or not objected to.

The evidence of the plaintiff, there being no evidence offered by defendants, was to the effect that Emil Ritter, now deceased, owned certain property which defendant, Maplewood Baptist Church, desired to purchase. Rev. Kellogg, pastor of defendant church, started trying to acquire the property in the fall of 1959 when Ritter placed a sign in his yard that the property was available for sale. During the negotiations which ultimately culminated in the sale of the property Ritter asked the representatives of the church that it be arranged for the property to be paid for to him and plaintiff, Mrs. Hoffman, jointly. An earnest money contract was signed which the witnesses thought was in the names of Ritter and Hoffman.

On Saturday, July 17, 1961, Ritter notified Kellogg that he was ready to close the deal and Kellogg got the attorney for the church to make out the deed, note and deed of trust. Kellogg told the attorney to make the note and deed of trust in the names of both Ritter and Hoffman which was done. On the same day Mr. Claude Brown, Chairman of the Board of Trustees of the church, executed the note and deed of trust on behalf of the church and Brown, Kellogg and Mrs. Hoffman went to the nursing home where Ritter was being cared for, paid Ritter $5000.00, delivered the note and deed of trust and received the deed executed by Ritter.

The testimony of witnesses Claude Brown and Rev. Kellogg was to the effect that at the time of the delivery of the note and deed of trust Ritter read a part of the deed of trust and that Kellogg and Hoffman read parts of it to Ritter and explained it to Ritter. Both witnesses stated that Ritter stated that in the event anything happened to him the proceeds of the note were to go to plaintiff. Both also stated that Ritter asked whether, if anything happened to him, the proceeds of the note would be paid to plaintiff and that Kellogg showed him that both names were on the instruments and assured him that such would be the case. Upon such assurance Ritter said that he was satisfied that the instruments were as he wanted them and Ritter then executed the warranty deed, delivered it to Kellogg and Brown and accepted the note and deed of trust which he then handed to plaintiff and instructed her to take care of them. During the conversation concerning the note and deed ’of trust Ritter asked plaintiff if she understood them and if they were as they, Ritter and plaintiff, had discussed and if they were properly drawn, to which plaintiff answered in the affirmative.

Brown and Kellogg both testified that they understood and intended that by making the note and deed of trust in the names of both Ritter and Hoffman the entire proceeds would go to plaintiff Hoffman in the event Ritter died before Hoffman and that Kellogg had them so drawn because of the insistence by Ritter that they be drawn so the proceeds would go to Hoffman in the event anything happened to Ritter.

From the testimony above set out it is apparent that Ritter intended that the note and deed of trust be made to him and Mrs. Hoffman jointly with right of survivor-ship and not as tenants in common. It further is apparent that all the parties, including Olive L. Hoffman, mistakenly assumed that by making the note payable to Emil Ritter and Olive L. Hoffman and by including the name of Olive L. Hoffman in the deed of trust, they were creating a joint tenancy with right of survivorship in Hoffman in accordance with the agreement between Ritter and Kellogg acting on behalf of defendant church and further in accordance with the understanding between Ritter and Hoffman (referred to in the conversations at the time the note and deed of trust were delivered).

Where it is contended, as here, that the written instrument, by mutual mistake, does not express the true intention of the parties, the preceding agreement, not only may be shown, but must be shown in order to afford relief in an action to reform the instrument; Zahner v. Klump, Mo., 292 S.W.2d 585; Feeler v. Gholson, Mo., 71 S.W.2d 727; Snider v. Miller, Mo.App., 352 S.W.2d 161; and the evidence must be so clear, convincing and complete as to exclude all reasonable doubt in the mind of the Chancellor; Walters v. Tucker, Mo., 308 S.W.2d 673; Snider v. Miller, supra; the mistake must be mutual to all parties to the instrument and both must have done what neither intended; Walters v. Tucker, supra; Snider v. Miller, supra; State ex rel. State Highway Commission v. Schwabe, Mo., 335 S.W.2d 15.

We think the rule applicable to the evidence in this case is concisely stated in Allen v. Smith, supra, loc. cit. 880, 881 as follows:

“Numerous cases announce and apply the settled doctrine that, to establish a mutual mistake in an instrument, it is not necessary to show that the parties theretofore had agreed upon any particular words or language to be used in the instrument, but it is sufficient to show that they agreed to accomplish a particular object by the instrument to be executed and that such instrument, as executed, is insufficient to effectuate their intention. General Refractories Co. v. Howard, 328 Mo. 1139, 44 S.W.2d 65, 66(2); Wolz v. Venard, 253 Mo. 67, 82, 161 S.W. 760, 764; Williamson v. Brown, 195 Mo. 313, 332, 93 S.W. 791, 796; Snider v. Miller, Mo.App., 352 S.W.2d 161, 165(8); Bryan v. Medical West Bldg. Corp., Mo.App., 345 S.W.2d 389, 396. True, the burden rests upon one seeking reformation to establish his case by clear, cogent and convincing evidence. City of Warsaw v. Swearngin, Mo., 295 S.W.2d 174, 181(7); City of New York Ins. Co. v. Stephens, Mo., 248 S.W.2d 648, 651(2); Bryan, supra, 345 S.W.2d loc. cit. 395(1). * *
“In court-tried cases, we are under the broad general injunction that the judgment nisi should not be set aside unless clearly erroneous [V.A.M.R. Rule 73.01 (d); V.A.M.S. § 510.310(4); Southern Reynolds County School Dist. R-2 v. Callahan, Mo., 313 S.W.2d 35, 38(3); Erickson v. Greub, Mo., 287 S.W.2d 873, 874(1)]; and, as the courts have put it in other suits for reformation, the chancellor’s finding ‘will be sustained unless the proof is palpably insufficient in clarity and cogency to warrant the finding made by him.’ City of Warsaw, supra, 295 S.W.2d loc. cit. 182(9); Ethridge, supra, 363 S.W.2d loc. cit. 698(3); Snider, supra, 352 S.W.2d loc. cit. 162(2). See also Cossairt v. Reich, Mo., 370 S.W.2d 291, 294(2). * * *”

It seems abundantly clear from the evidence above set out that Ritter and Kellogg discussed on several occasions the intention of Ritter that the proceeds of the note were to go to plaintiff in the event anything happened to Ritter and that they agreed that the note and deed of trust were to be drawn in such manner. It is also clear that Ritter, acting on his own behalf, and Kellogg and Brown, acting on behalf of the defendant church, understood that the note and deed of trust were so drawn as to provide that the proceeds of the note would go to plaintiff. It is not so clear, but may be inferred from the testimony as to the conversations at the time of delivery of the note and deed of trust, that Ritter and plaintiff had had conversations prior to the delivery of the note and deed of trust concerning plaintiff’s interest in said instruments and the effect of putting both their names on said instruments. It is clear (without referring to any of the testimony given by plaintiff herself) that she and Ritter shared the same understanding as to the effect of making the said instruments payable to Ritter and Hoffman. It is also clear (without referring to his testimony) that Mr. Renderer, attorney for the defendant church, was told to draw the instruments so that plaintiff would receive the entire proceeds in the event anything happened to Ritter and failed to properly prepare the instruments. In other words, the evidence is clear that all the parties intended to accomplish the result of making the note and deed of trust payable jointly to Ritter and Hoffman with right of survivorship and by mistake failed to accomplish that intention.

It would seem unnecessary to detail further facts and applying the above principles we necessarily affirm the finding of the trial judge on the basic issue of mutual mistake.

Defendant claims that the plaintiff’s testimony discloses existence of a fiduciary relationship between deceased Emil Ritter and plaintiff Olive L. Hoffman at the time the note and deed of trust were drawn rendering said instruments presumptively void under the law. This contention is raised for the first time in defendant’s brief on appeal and was not pleaded or contained in, or referred to, in the motion for new trial. We think it necessary only to refer to V.A.M.R. Civil Rule 79.03 and Allen v. Smith, supra, 373 S.W.2d 882, and cases there cited, to hold that this claim, not having been “presented to or expressly decided by the trial court” presents nothing to be ruled or decided in this court. However, in response to defendant’s claim that since the prayer of plaintiff’s petition was for general relief, and the equity court having acquired jurisdiction, full and complete justice should be administered even though a new issue was injected by the evidence, we have considered all the evidence (including that which defendant objected to and which we did not consider above) and do not find that there is evidence of a fiduciary relationship as claimed, which justifies the remand of the case for a new trial.

As above stated, we conceded for the purpose of this appeal, defendant’s contentions that the trial court erred in its Findings of Fact and Law and that the trial court erred in the admission of testimony objected to by defendant; but, since upon consideration of the case de novo, as we are required to do, eliminating errors of the trial court, and arriving at cur own findings as to the facts and law, as we are required to do, and being mindful of the admonition that the judgment should not be set aside unless clearly erroneous, Bank of Williamstown v. Hiller, Mo.App., 266 S.W. 1031, 1032; Dreckshage v. Dreckshage, 352 Mo. 78, 176 S.W.2d 7; Harriford v. Harriford, Mo.App., 336 S.W.2d 113, 117; Rothweiler v. Callicott, Mo.App., 322 S.W.2d 151, 154; Cammisano v. Hartford Livestock Ins. Co., Mo.App., 351 S.W.2d 208, 209; we have arrived at the same conclusions as the trial court.

In the case of Bank of Williamstown v. Hiller, Mo.App., 266 S.W. 1031, 1032 it is said:

“We think it is clearly demonstrated by the facts in evidence in this case that the verdict and judgment was for the right party, and, this being an action in equity, it is our duty to follow the general rule that, where improper testimony has been admitted in a proceeding in equity, we review the entire record, and will not reverse a judgment on that ground if there is sufficient competent testimony in the record to authorize the judgment in question. It is our duty under such circumstances to disregard the incompetent testimony, and render such a judgment as equity and good conscience authorizes under the pleadings and relevant testimony. Bryant v. Shinnabarger, 285 Mo. 484, 227 S.W. 54; Koger v. Black (Mo.Sup.) 229 S.W. loc. cit. 905; Rinkel v. Lubke, 246 Mo. loc. cit. 392, 152 S.W. 81; Badaracco v. Badaracco, (Mo.Sup.) 202 S.W. loc. cit. 374.”

We, therefore, do not feel it necessary to discuss specifically any such errors, although we have considered them carefully, together with defendant’s contentions and the authorities cited in connection therewith. Any such errors, in view of our findings, are not prejudicial to defendant, and since further consideration thereof

could not possibly warrant a different decision than we have made on the record before us, Kansas City Assemblage Co. v. Lea, supra, p. 248, we feel the judgment and decree of the trial court should be affirmed.

Accordingly, the judgment and decree of the trial court reforming the note and deed of trust, referred to in said decree, to make the same payable to Emil Ritter and Olive L. Hoffman as joint tenants, with right of survivorship, and finding that Olive L. Hoffman, as the survivor of said parties is entitled to the entire proceeds of said note, subject to the terms and conditions thereof, is affirmed.

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


author: MAUGHMER, Commissioner.

text:
    Bessie KIND, Respondent, v. Bill STATON and C. L. Mallett, Appellants.
    No. 24415.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1966.

      McMath, Leatherman, Woods & Young-dahl, James E. Youngdahl, Little Rock, Ark., Krings, Stewart, Whipple, Mauer & Eisler, C. David Whipple, Kansas City, for appellants.
    Allan R. Browne, Ennis, Browne & Martin, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is an action by Bessie Kind, widow and beneficiary of Jackson Kind, deceased, on a $3,000 Death Benefit Certificate issued by Local 31, U.A.W., AFL-CIO, a labor union group made up entirely of employees of the Buick-Oldsmobile-Pontiac Plant of General Motors and located in the Fairfax District, Kansas City, Kansas. The named defendant Bill Staton was Secretary and Treasurer of Local 31, and the named defendant C. L. Mallett was chairman of its Bargaining Committee. The total membership of Local 31 exceeded 3,000. It was impracticable to join such a number as defendants. Hence these two as representatives were named, and no objection has been expressed to such procedure. The real and responsible defendant is Local 31. Plaintiff sought to make collection out of the Special Fund which had accumulated in the Union Treasury through assessments levied under its Death Benefit Plan. After a trial resulting in a nine member favorable jury verdict, judgment was entered on June 2, 1965, for plaintiff in the sum of $3,345 ($3,000 under the Death Benefit and $345 as interest).

Defendants have appealed and assert: (1) their motion for a directed verdict should have been sustained and (2) Instructions Nos. 2 and 3 were erroneously given. It is plaintiff’s contention that the defendant Union is estopped to assert forfeiture for failure to pay premiums, which were admittedly due. After some evidence had been received, plaintiff asked for and was granted leave to amend her petition by adding the following: “that defendants are estopped by silence and waived any objection to tardy payments on said plan”.

Jackson Kind, the deceased insured, was first employed at the B.O.P. Plant in 1952. As an employee there he and all other employees were required to be members of the labor union identified as Local 31, U.A.W. CIO and International U.A.W. AFL-CIO.

Since September 15, 1951, Local 31 has had a Death Benefit program in effect. The plan was voluntarily created by the members of Local 31 (employees of B.O.P. Plant). This feature was a purely local enterprise and had no connection whatever with the parent or any other labor group. The Death Benefit was available to “all members in good standing” and provided for payment (to the insured member’s named beneficiary or estate) of a Death Benefit amounting to $3,000 if death occurred while the member’s coverage was kept in full force and effect by payment of the premium or assessment of $1.00 per month as required by the written By-Laws. These By-Laws had been adopted by the whole membership. Changes could be made only after 60 days’ notice and then only if voted by two-thirds of the membership. Article II of the Death Benefit Plan provided that it “be financed and supported by a One Dollar ($1.00) per month increase in the regular dues of each member”. So long as the member continued in active employment, this amount ($1.00), in addition to the union dues was “checked off” (deducted) from his pay check by the employer, General Motors, and, by it remitted to the treasurer of Local 31.

Article VII of the Death Benefit Plan contemplated and provided procedures to be followed and obligations which would be incurred by employees whose services were terminated or interrupted. We set forth Article VII in full:

“The benefits provided by this plan are available to all members of the UAW-CIO, Local 31, who are in good standing in accordance with the requirements of said Local Union and the Constitution and By-Laws of the International Union, with the added provisions that:
“(a) Any member who is unemployed due to layoff or seasonable shutdown and who is eligible to be recalled, shall be required to pay the sum in effect at that time, not to exceed the amount of one dollar ($1.00) per month.
“(b) Any member who is absent from the plant on an approved leave of absence for any reason shall be required to pay the sum in effect at the time, not to exceed the amount of One Dollar ($1.00) per month.
“(c) Any member who retires under the UAW-CIO, G.M.C. Pension Plan may continue to participate in the benefits of this Plan by payment of the sum in effect at that time not to exceed the amount of One Dollar ($1.00) per month.
“Any member eligible for the Death Benefit Plan must pay the said sum in effect at that time, not to exceed the amount of one dollar ($1.00) per month which shall be due betzoeen the first and fifteenth of each month to the Financial Secretary of the Local Union; otherwise, the said member will not be eligible or qualified to participate in the benefits of this plan until lie is recalled, rchired, or returns to work, at which time his regular dues ivill again be aiUomatically deducted from his salary”. (Italics ours).

Deceased’s work card covering 1960 and through March of 1963 was in evidence. It shows that he was off work from February until August, 1961, and during that period did not pay any of the Death Benefit assessments. Of course, there was no “check off” or deduction of this item by the employer and could not have been since no money was earned, due or payable to him during the period. In accordance with the benefit plan provisions deductions were resumed, which resulted in reinstated coverage, when he returned to work. The work card shows further that Mr. Kind was not employed after March, 1963, and therefore there was not and could not have been any “check off” of the assessments due for May or June, 1963. According to the testimony, Mr. Kind stopped work because of illness. His condition was.diagnosed as cancer, and he died on June 24, 1963.

It is undisputed that the assessments for May and June, 1963, which were payable on or before the 15th of each month were never actually paid. It is also conceded that the coverage here is what is usually described as term insurance — that is — there are no accumulated or extended values. Once default is made in payment of the premium there is a complete lapse and the insurance or benefit is no longer in effect. This is generally true and was here specifically provided for by Article IX of the Plan.

Plaintiff must and does seek to rely upon estoppel, namely, an estoppel against defendant Union to set up the defense of forfeiture, not because there is any question about defendants’ right under its By-Laws and under the Plan, to forfeit Kind’s certificate when he did not pay the May, 1963 premium or assessment by May 15, but because estoppel to do so arose on May 15, 1963, by reason of a telephone conversation which plaintiff says she had on that day with a girl or lady who answered the telephone at the office of Local 31. Mrs. Kind testified that: (1) some time prior to May 15, 1963, her husband. asked her “to check the status of the Death Benefit Plan as to whether or not he was paid up and in good standing”; (2) early on the morning of May 15, she “looked up” the telephone number of Local Union 31, called that number and a lady answered. “I asked her if my husband was paid up on his dues and I want to know when I could pay, if there is any payment due on them — where to pay them” “She” (the girl who answered) “said that she would have to get in touch with General Motors to see if they had taken it out of his check and she could call me back”; (3) no return call was made and that plaintiff on May 16, called once more and again a “lady’s voice” answered. Plaintiff was told the “check off” had not been made and in response to her inquiry if “I could come in and pay it and she said, ‘No’ ”. “She said I couldn’t, the 15th had passed”.

Plaintiff also testified that in July, 1963, after her husband’s death, she visited the Union office and talked with Mr. Bill Staton, Union Secretary and Treasurer, and a named defendant. She said that in this conversation she mentioned the telephone calls of May 15th and 16th. Mr. Staton testified that she did come to the Union offices and talked with him. He stated that he got out Mr. Kind’s card, told her the insurance was lapsed and she said she knew the premiums were unpaid. Mr. Staton denied that she made any reference to or even mentioned any alleged telephone calls by her to his office during the month of May, 1963.

The defendant Union or Benefit Fund does not carry the status of the ordinary insurance company. It is a voluntary organization; only its own members are eligible for benefits, the fund is not operated for profit and the members are in reality both insureds and insurers. Biggs v. Modern Woodmen of America, 336 Mo. 879, 82 S.W.2d 898, 904. We are told by the opinion in John Hancock Mutual Life Ins. Co. v. Dawson, Mo.App., 278 S.W.2d 57, 61, that: “One who asserts an estoppel has the burden of establishing the facts on which it rests. 11 Mo.Dig., Estoppel, Key 116. Every fact essential to create it must be established by clear and satisfactory evidence”.

The subject of estoppel generally is covered in 31 C.J.S. Estoppel, commencing on page 283 and continuing to page 794. Therein four kinds or methods by which estoppel may arise are discussed. The first three, estoppel by record, by deed, and by contract, are clearly not applicable to the case before us. Only the fourth, “Equitable Estoppel; Estoppel by Misrepresentation” is of possible application here. In defining that kind of estoppel we are told on page 367:

“Equitable estoppel is defined in many cases as the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person who in good faith relied on such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right either of contract or of remedy; and the same definition is given estoppel in pais and estoppel by misrepresentation, * * *

In discussing application of the doctrine we find the following declaration on pages 394, 395:

“As the doctrine, when applied, contravenes the technical, legal rights of the person estopped, stays the operation of the usual machinery employed to adjust the rights of men, and halts proceedings to make certain of justice, and hence is somewhat of a superlaw, arbitrary and penal in nature and character, it should be applied with great care and caution in each case, and only when all elements constituting an estoppel clearly appear”.

In 45 C.J.S. Insurance § 673, pages 612 and 613, we find Waiver and Es-toppel again distinguished in part and in these words:

“A waiver is the voluntary or intentional abandonment or relinquishment of a known right, an election not to take advantage of a technical defense in the nature of a forfeiture, whereas the essential elements of estoppel include the ignorance of the party who invokes the es-toppel, misleading representations or conduct on the part of the company, and an innocent and deleterious change of position in reliance on such representations or conduct”.

See also Keck v. American Fire Ins. Co., 237 Mo.App. 308, 167 S.W.2d 664.

We find no evidence in the case before us to indicate that the defendant Union or anyone for it voluntarily or intentionally waived payment or tried to waive payment of the premium due on May 15. In fact plaintiff in her brief (p. 9) says:

“However, the present question is not waiver (intentional relinquishment of a known right, Brandtjen & Kluge v. Hunter, 235 Mo.App. 909, 145 S.W.2d 1009, Spg.), but estoppel, as a shield against the defense of alleged nonpayment of premium”.

In ruling as to whether or not plaintiff made a submissible case under estoppel and in determining if defendants were entitled to a directed verdict, we accept (because the jury did) Mrs. Kind’s version of her telephone conversation with the lady at the Union office as completely correct. Was that conversation of May 15 sufficient in substance to give rise to equitable estoppel? First, was there any misrepresentation of any fact in the whole conversation ? We believe there was no factual declaration of any kind pertinent to this controversy that was made in the conversation. The woman at Union headquarters merely offered to call General Motors. Second, was the insured, Mr. Kind, or the plaintiff, Mrs. Kind, ignorant or should they have been knowledgeable, as to whether or not the premium for May had been paid? They both knew or should have known that Mr. Kind had not worked since March and no wages were due him for April or May out of which this assessment could have been deducted. Mr. Kind at least knew, or was chargeable with knowledge, as to the contents of the By-Laws. McMahon v. Supreme Tent Knights of Maccabees, 151 Mo. 522, 52 S.W. 384; Kitzinger v. Journeymen Barbers I. Union, Mo.App., 103 S.W.2d 547, 550. His written designation of his wife as beneficiary contained this statement just above his signature: “I do hereby acknowledge that I have read the Death Benefit Plan and do agree to the provisions therein”. It appears from Mrs. Kind’s testimony that she, too, understood that the premium had to be paid on or before May 15. Third, did insured or plaintiff suffer an innocent or harmful change of position as a result of the telephone conversation ? We think not. Their position was exactly the same afterwards as it had been before. Nothing had occurred which might reasonably have induced them to believe (a) that the premium was paid or (b) that an extension of time had been granted for its payment.

However, even though there was no waiver, nor factual misrepresentation and no change in position to the plaintiff, still if the girl at the office promised to call General Motors and “call plaintiff back” it was careless and negligent for her not to do so and we are told in 31 C.J.S., Estoppel § 102 page 519 that: “Negligence may give rise to an estoppel”. However, continuing on the same page and in explanation as to when it may do so, we find this statement:

“A recognized proposition as to estop-pel in pais is that if in the transaction itself which is in dispute a party has led another into the belief of a certain state of facts by conduct of culpable negligence calculated to have that result, and such culpable negligence has been the proximate cause of leading, and has led, the other to act by mistake on such belief to his prejudice, he cannot be heard afterward as against that other to show that the state of facts referred to did not exist”.

In our opinion the negligence here, if any, does not amount to culpable negligence.

Plaintiff has invited our attention to numerous opinions which, it is claimed, justify or at least authorize factually and legally a conclusion that our case presents a situation where defendants are estopped to assert the defense of nonpayment of premium. We examine some of those cases.

In Kitzinger v. Journeymen Barbers I. Union, supra, it was held first, that a member of a trade union was presumed to know the rules or by-laws and could not rely on an attempt by a subordinate officer to waive a requirement for prompt payment of assessment, but second, where the local union had long engaged in the practice of accepting premiums after the due date and the International Union had acquiesced without protest, it could not suddenly without warning or notice inflict the penalty of suspension. There is no evidence or even a suggestion in our case that any premiums were accepted after due date. Brandtjen & Kluge, Inc. v. Hunter, 235 Mo.App. 909, 145 S.W.2d 1009 is a replevin suit to recover some printing presses. It sheds no light on our matter. State on inf. of McKittrick ex rel. City of California v. Missouri Utilities Co., Mo.Sup., 96 S.W.2d 607, is offered as holding: “Mere silence is an act” of estoppel. The case is one in quo war-ranto for ouster of defendant utility from continuing to use certain streets. On page 615 of the opinion the court says:

“Indeed, there are cases where the mere silence of the estopped party and his failure to assert the right later claimed will he construed as a representation that he docs not have the rights which he later attempts to assert”.

This expression seems to be dicta, but in Liese et al. v. Sackbauer et al., Mo., 222 S.W.2d 84, we find an actual example. This was a suit to set aside a tax deed. Property admittedly worth $1500 was sold for taxes by the collector for $12.33, the amount of unpaid taxes. The collector accepted taxes from the original owners without informing them of the tax sale. His silence in this respect resulted in the doctrine of estoppel arising to prevent his later invoking the statute of limitations. The collector’s silence, we think, amounted to a willful and fraudulent misrepresentation. It is not fairly comparable to the case before us.

Our Supreme Court in Lange v. New York Life Ins. Co., 254 Mo. 488, 162 S.W. 589, ruled that where defendant’s branch office cashier had authority to collect premiums, accept premium notes, and transact the company’s business generally, his statement and representation to an insurance policy assignee that only $18.40 was necessary to pay a semiannual premium, he was authorized to bind the company and it was es-topped to forfeit because such amount actually was insufficient. Smith v. Hartford Fire Ins. Co., Mo.App., 272 S.W. 700 is a case where the agent, in response to a request for an extension on premium installment, said: “You just let it go, and I will write into the company and see what they say about it”. The court there held the company was estopped to forfeit for nonpayment of premium. These last two cases involve fire insurance companies.

We do not disagree with the opinions and conclusions expressed in any of the cases just reviewed but the facts in none of those cases can be said to fit the facts in our case, nor does the law as expressed in those cases provide a guiding precedent for our case. It is our opinion that the facts in the case before us did not give rise to estoppel and did not, as a matter of law, authorize submission of that issue to the jury.

There is an additional reason why the motion for a directed verdict should have been sustained. It is our opinion that the “lady in the Union office” had no authority by or through promises, under either the doctrine of waiver or of estoppel, to forgive payment of the May 15th premium or grant a time extension for its payment. The Death Benefit Plan or By-Laws provided unequivocally that any unemployed member must pay the monthly assessment by the 15th or the coverage terminated. There was no exception and no officer or employee was given discretion to vary or modify this requirement. We are not here dealing- with an insurance company, but with a voluntary union or fraternal group. All members are not only insureds but are also members of the insuring body. The group voted for and legislated the rules which could only be changed after 60 days’ notice and by a two-thirds vote. Mr. Kind and all other members were charged with knowledge of those rules. Even if the “lady in the Union office” had precisely said to Mr. Kind or to Mrs. Kind: “We will waive payment of this May 15 premium because Mr. Kind is ill” or “We will extend time for payment until May 30 or until we learn whether his assessment was ‘checked off’ ”, we still believe the defendants or the Union would not be liable. Such representations, declarations or promises would have been above and beyond her authority. These employees had no authority through promises to waive payment of the premium, grant an extension or bind the Union to forego enforcement of the forfeiture provision for.nonpayment of premium. Of course, had they advised that the premium had been paid, at a time when plaintiff was there for the purpose of paying, this would be a classic example of es-toppel, misrepresentation of a fact, reliance thereon and all to the detriment of the claimant.

It follows as a result of the views expressed in this opinion that defendant’s motion for a directed verdict should have been sustained. This being so, it is unnecessary to consider those assignments alleging error in the giving of Instructions Nos. 2 and 3.

The judgment for plaintiff is reversed and the cause remanded with directions to enter judgment for defendants.

SPERRY, G, concurs.

PER CURIAM.

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

All concur.


author: SPERRY, Commissioner.

text:
    Donald E. THROCKMORTON, Plaintiff-Respondent, v. WABASH RAILROAD COMPANY, Defendant-Appellant.
    No. 24208.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 5, 1966.
    Application to Transfer Denied Jan. 9, 1967.

      Gene Thompson, Maryville, for appellant.
    Joe Beavers, Larry L. Zahnd, Maryville, for respondent.
   SPERRY, Commissioner.

Mr. Throckmorton, plaintiff, sued the Wabash Railroad Company, a corporation, for damages to his milk truck, milk cans, and milk when the rear end of the truck was “struck” on the north approach to the railroad crossing located on State Supplemental Highway A.B. in Nodaway County. Trial to a jury, which ended July 19, 1964, resulted in a verdict and judgment in favor of plaintiff in the sum of $3,000.00. Defendant appeals.

Plaintiff testified to the effect that, on May 26, 1962, he was operating his loaded milk truck in a northerly direction on the above mentioned highway, approaching the crossing over defendant’s railroad; that it was getting good daylight and was raining; that he crossed the track of defendant without incident and proceeded to a point north of the north rail of the track when the front wheels of the truck began sliding to the east, toward the grader ditch; that the right front went into the grader ditch at a point 34 feet north of the north rail of the track; that the entire truck, including the milk box, was clear of the railroad track; that the overall length of the truck was 25 feet; that the rear wheels were still in the main traveled track, but the front was angled to the northeast at 45 degrees; that the truck came to a stop and he attempted to back it toward the crossing, straightening the front wheels, so as to get them in the main traveled track of the roadway; that the north “approach” to the crossing (the truck was traveling north on that “approach”, on the right-of-way of defendant) was wet and muddy from rain; that it did not appear to be muddy or soft; that the surface was covered with gravel but that the gravel coating was only about two inches thick; that the gravel was mixed with mud; that the wheels of the truck sank down in the roadway and made tracks several inches deep; that he had traveled over this crossing regularly for several months but had never before traveled it when it was raining; that the roadway on the south approach was solid; and that the traveled roadway north of the track was also solid.

His testimony was to the effect that, when the front wheels got near or into the ditch, his left rear wheel was on solid ground, in the roadway, in the solid track; that he backed the truck toward the railroad track; that the right rear wheel dropped into a hole off the side of the track, off the side of the road; that the truck “stuck”; that the right rear wheel went into the hole hub deep; that the back wheels were up almost even with the end of the ties; that he didn’t see any way to get the truck moving, and went to a farmhouse where a tow truck was ordered; that, when he was returning to the scene, when a few hundred feet away, defendant’s train approached and struck the rear end of the truck, which protruded several feet over the rails of the track.

He stated that, as he backed toward the track, the roadway was soft and muddy; that the back of the truck slid to the east and the right wheel dropped into a hole off the side of the road; that the wheel went into the hole hub deep; that when the rear end began to slide the rear wheels were “up almost to even with the ties or track”; that they went to the east; that they slid four or five feet; that the hole was to the east of the road and to the north of the crossing; right by the tie; right up against the tie; that the back of the truck extended to the rear about five feet beyond the axle; that, after the truck became stuck, the rear end extended four or five feet over the track. From plaintiff’s testimony it appears that the rear wheels of the truck were north of the crossing when the vehicle finally came to rest.

He stated the front wheels were 20 feet north of the crossing when it was finally stuck. Therefore, the rear wheels were north of the crossing because of their distance from the front wheels. They were not on the crossing. Indeed, a picture of the crossing at this point, which was in evidence, clearly indicates that the wheels could not have mired down at any point south of the north edge of a 26½ foot board which was fastened to the end of the ties and adjacent to the outside, north side, of the north rail. Pictures also indicate that traffic crossed at about the middle of these boards and not within several feet of either end. No part of the events here shown occurred within the limits of the crossing. All occurred on the north side of the tracks, on the approach. Plaintiff’s evidence, and the physical facts, establish that fact conclusively. Plaintiff pleaded defective construction and maintenance of the approach to the crossing, in that it was not constructed “with a covering of macadam, gravel or equally durable material to a depth of not less than six inches as required by statute (389.610 VAMS) and ordinary care”. His evidence was all directed to proof of that allegation. He submitted ■ that theory to the jury under his Instruction No. 1.

Plaintiff also offered the testimony of Sgt. Whan, State Highway Patrol, who arrived at the scene at 6:30 A.M. He stated that plaintiff showed him a hole “at the north edge of the ties (where the truck was struck); that it was east of the plank laid alongside the rail”, “over near the ditch”, “the ditch along the east edge of the highway that runs north and south”.

Defendant moved for a directed verdict at the close of all of the evidence. Its chief contention here is that plaintiff made no submissible case because defendant, under the law of this state, owed no duty to construct or maintain the approach to this crossing upon which the claimed defect that caused, or contributed to cause the casualty, existed.

The general statute governing the construction and maintenance of railroad crossings over public highways is stated in Section 389.610 VAMS. That section originally came into the law from Laws of Missouri, 1853, 2d Session, p. 142, § 47. However, the Legislature, Laws 1913, page 589 (now Section 389.640 VAMS) provided that no crossing over a public highway by a railroad should thereafter be constructed without permission previously granted by the Missouri Public Service Commission and that; upon an application/duly made, the Commission shall have the right to refuse its permission or to grant it upon such terms and conditions as it may prescribe.

In paragraph 2 of said section (389.640 VAMS) it is further provided that the commission shall have the exclusive power to determine and prescribe the manner, including the particular point of crossing, and the terms of installation, operation, maintenance, apportionment of expenses, use and protection of each crossing of a public road or highway by a railroad, and to alter or abolish such crossing.

It has been held that this section is not invalid as delegating legislative power, but is constitutional. State ex rel. St. Josephs Ry., Light & Power Co. v. Public Service Commission, 272 Mo. 645, 199 S.W. 999, 1001. Since 1913, the Public Service Commission has had exclusive jurisdiction over the establishment, installation, operation, maintenance and apportionment of expense and protection of such crossings. Liddle v. Thompson, 236 Mo.App. 1071, 162 S.W.2d 614, 621. In the last mentioned case, however, it was not shown that the crossing was established under order of the commission, or, if so, what were the terms of the order made concerning installation and maintenance. The cause was remanded for a new trial, for further evidence on that question.

An approach to a railroad crossing means “that prepared or made condition on the highway necessary to make a safe, easy, and convenient way across the tracks”. Albright v. Louisiana & M. R. R. Co., 189 S.W.2d (Mo.App.) 665, 667. It was on the north approach to this crossing that the truck became finally stuck.

In Clark v. Mississippi River & B. T. Ry. Co., 324 Mo. 406, 23 S.W.2d 174, 177, the court held that, in the case there considered, had the crossing been installed or altered after the provisions of the 1913 statute became effective, it would have been necessary for the commission to have determined and prescribed the terms of its installation and maintenance but that, until the commission assumed jurisdiction with respect to this particular crossing and made some such order, the defendant railroad’s duty remained undisturbed, that is, governed by the law as it existed prior to the enactment of what is now Section 389.640 VAMS. See City of St. Louis v. St. Louis-San Francisco Ry. Co., 330 Mo. 499, 50 S.W.2d 637, 638; Patterson v. Thompson, 277 S.W.2d (Spgfd.App.) 314, 317.

Introduced into evidence was a stipulation, duly entered into by and between the parties hereto, which was to the effect that, on July 16, 1957, proceedings were commenced before the Public Service Commission seeking permission for relocation of a crossing over defendant’s tracks on Supplemental A.B.; that, after due notice to all parties, a hearing was held on the application for relocation of the crossing; that, on October 10, 1957, the commission’s order was handed down whereby the State Highway Commission and defendant herein were authorized to relocate this crossing and ordering the State Highway Commission, at its own cost, to construct and maintain that portion of the highway up to the ends of the railroad ties, including all necessary drainage facilities; that defendant in this action shall install and maintain, at its cost, the necessary crossing facilities between the ends of the railroad tics.

There was testimony from Mr. Murphy, area maintenance supervisor, Missouri State Highway Department, during the prior sixteen years, including May 26, 1962, that he has had charge of maintaining the railroad crossing here involved; that the state has and does maintain that crossing, since its construction was completed in 1958; and that the state maintains the approaches to the crossing, up to the ends of the ties, both north and south of the crossing.

Mr. Lett, resident engineer of the Missouri State Highway Commission for the area including Nodaway County, during the prior 17 years, testified that he received a copy of the order heretofore mentioned, as made by the Public Service Commission, and has same in his files; that, pursuant to said order, this crossing was constructed under the supervision of witness’s office, and of witness personally; that it was completed in 1958; that it is now, and has been since construction, maintained under witness’s supervision; that he has custody of the plans of construction and that the crossing was built in accordance with said plans (as approved by the Public Service Commission).

Under the law as it now exists in Missouri defendant herein is not liable for any damages growing out of defects of construction or maintenance of the north approach to the railroad crossing Supplemental A.B., which defect did not exist between the ends of the ties of defendant’s track bu.t existed on the north approach to said track and crossing. Defendant’s motion for directed verdict should have been sustained.

The judgment is reversed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.