author: WELBORN, Commissioner. PER CURIAM:

text:
    STATE ex rel. PUBLIC WATER SUPPLY DISTRICT NO. 2 OF JACKSON COUNTY, Missouri, a Public Corporation, Relator, Respondent, v. Tyre BURTON, E. L. McClintock, Frank Iuen, William Barton, and Frank W. May, Members of the Public Service Commission, and the Public Service Commission, and Raytown Water Company, a Corporation, Intervenor, Appellants.
    No. 50301.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 8, 1964.

      Preston H. Longino, Kansas City, Glen D. Evans, Gen. Counsel, Thomas J. Downy, Asst. Gen. Counsel, for appellants.
    Charles V. Garnett, Richard A. Erickson, Kansas City, Henry Andrae and Kenneth W. Shrum, Jefferson City, for respondent. Hendren & Andrae, Jefferson City, of counsel.
   WELBORN, Commissioner.

This is a proceeding for review of an order of the Missouri Public Service Commission, dismissing a complaint before that agency of Public Water Supply District No. 2 of Jackson County, Missouri. The complaint charged that Raytown Water Company, a public utility supplying water in Jackson County, was providing service beyond the area included in its certificate of convenience and necessity issued by the Commission. The Public Service Commission found that the area in question was within the territory which Raytown Water Company had been authorized to serve and dismissed the complaint. The Cole County Circuit Court found the action of the Commission arbitrary, unlawful and unreasonable and remanded the matter to the Commission for further proceedings, consistent with the court’s opinion which was entered in the case. The Public Service Commission and Raytown Water Company have appealed from such judgment.

A question of jurisdiction is presented by this appeal. Appellants originally took their appeal to the Kansas City Court of Appeals. That court, on motion, of the respondent asserting that this court had jurisdiction because the amount in dispute exceeded $15,000, transferred the appeal here. In this court, appellants have moved to remand to the Court of Appeals on the grounds that the case does not involve an amount in dispute which causes this court to have jurisdiction. Appellants’ position is that the “sole matter of contention is whether or not Raytown Water Company has a right to service the area in dispute.” Relying on Pitcairn, et al. v. Public Service Commission, 338 Mo. 182, 90 S.W.2d 392, appellants contend that the right to service has no measurable pecuniary value, and, therefore, an amount in dispute such as would confer jurisdiction on this court is not involved.

The respondent, on the other hand, contends that the amount in dispute exceeds $15,000 because, if the relief sought should be granted, Raytown would lose the value of water mains which it has installed since October, 1961, in the area involved at a cost of $66,000. Appellants acknowledge that Raytown has spent in excess of $15,000 in the installation of mains and other facilities in the area, but deny that the amount of such expenditure is an "amount in dispute” for purposes of this court’s jurisdiction.

The complaint before the Commission asked that the Commission take such action as might be required to prevent Raytown service in the area. The value of the installation of Raytown Water Company in the area at issue appears from the record to have been greatly in excess of $15,000 at the time of the appeal. The loss to Ray-town, in the event the relief sought by respondent should be granted, would, on the record before us, exceed $15,000. Therefore, this court has jurisdiction of the appeal. Aufderheide v. Polar Wave Ice & Fuel Co., 319 Mo. 337, 4 S.W.2d 776; Missouri Power & Light Co. v. Barnett, Mo.Sup., 354 S.W.2d 873(1); State ex rel. Sims v. Eckhardt, Mo.Sup., 322 S.W.2d 903, 905(1) ; Fleming v. Moore Bros. Realty Co., 363 Mo. 305, 251 S.W.2d 8(1).

Turning to the merits of the appeal, Raytown Water Company was incorporated in 1925. At that time, the Raytown community was an unincorporated area in Jackson County, lying southeast of Kansas City. The company proposed to construct an 8-inch main some 3J4 miles in length, from the Kansas City Municipal Farm to Ray-town, through which it would obtain water from the City of Kansas City and supply it to its customers through some 30 to 35 miles of distribution system. Raytown Water Company filed an application with the Missouri Public Service Commission for “permission to exercise a franchise granted by the County Court of Jackson County, Missouri, as a public utility * * The application stated:

“(b) A map was filed with said application to the County Court of Jackson County, Missouri showing principally the main lines of the proposed water distribution system. A copy of this map is attached to the certified copy of the petition to the County Court, which has been made a part of this application and which has been designated Exhibit #3. Reference is hereby made to this map. In addition to the water lines shown on this map it is contemplated that other water lines and extensions will be constructed into other districts in Jackson County. The applicant respectfully requests that permission be given to exercise the franchise generally within the boundaries of Jackson County, Missouri.
“WHEREFORE, applicant asks that the Public Service Commission of the State of Missouri grant to it a Certificate of Public Convenience and Necessity for the exercise of franchise or permit to construct and operate a water distribution system which said franchise or permit has previously been granted to it by the County Court of Jackson County, Missouri.” •

Attached to the application before the Public Service Commission was a certified copy of the company’s application in the Jackson County Court for permission to' “lay water mains along the Jefferson Highway from the Municipal Farm to Raytown for the purpose of furnishing water service to residents along said Jefferson Highway and the citizens of Raytown and vicinity. A more particular direction of lines asked for by this petition is set out on map, marked Exhibit A, attached hereto, and made part of this petition.”

A copy of this map is not part of the record here. However, there is a certified copy of an order of the Jackson County Court, dated March 6, 1925, approving the request of the company and enumerating 17 roads and highways along which application had been made for permission to lay mains. Generally, the roads designated were in an area bounded by the Kansas City city limits on the west, Blue Ridge Boulevard on the north and east and apparently 79th Street on the south. The order stated:

“It appearing to this Court that said Raytown Water Company, a duly authorized company, organized for the purpose of furnishing water to the residents of the vicinity of said roads heretofore set out, proposes to furnish water to the citizens along aforesaid roads as set out, it is therefore ordered that said request for such permit to lay-said water mains along the various County roads heretofore described, by the Raytown Water Company, be and the same is hereby granted in so far as the authority of this court exists over the various roads heretofore described.”

The report of the Public Service Commission on the company’s application stated:

“Application having been made by The Raytown Water Company, a Missouri corporation, to the Public Service Commission of Missouri, under the provisions of the Public Service Commission Law, for a Certificate of Convenience and Necessity authorizing the applicant to exercise a franchise to construct and operate a water distribution system heretofore granted said applicant by the County Court of Jackson County, Missouri, * *

The order issued by the Commission, on July 9, 1925, included the following:

“ORDERED: 1. That the Commission does hereby authorize and consent to the construction and operation by The Raytown Water Company of the water distribution system described in the application and at the hearing.”

A waterworks system was thereupon constructed by the company. As of September 1, 1939, the southern limits of the system installed were Gregory Road or 71st Street and U. S. Highway 50 in Jackson County. In the meantime, Public Water Supply District No. 2 had been incorporated by the Jackson County Circuit Court in 1935, under present Sections 247.010-247.220, RSMo 1959, V.A.M.S. Generally, the territory included in the district was to the south of the Raytown community. The limits of the district included some of the streets and roads on which the Jackson County Court’s order had permitted Ray-town to lay its mains, including 79th Street. The district constructed its water distribution system in an area generally south of 65th Street in the southeastern quarter of the City of Raytown. In the southwest portion of the original City of Raytown, Raytown Water Company served as far south as 75th Street and District No. 2 served as far north as 61st Street in an area approximately two blocks wide, immediately adjacent to the Kansas City city limits.

The vague description of the Raytown service area produced conflict with other companies operating in the area. By a proceeding in 1937 and 1939, the Commission approved a line of demarcation between Raytown and the Independence Water Company, which operated to the north and east of the Raytown area. At that time, the northern and eastern boundaries of the Raytown service area were fixed, but no effort was made in such proceeding to establish a line between the Raytown service area and District No. 2. Raytown Water Company v. Independence Water Works Company, 25 Mo.P.S.C. 73, 32 P.U.R.(NS) 117.

In 1949, District No. 2 filed a complaint before the Public Service Commission in which it charged that Raytown was proposing to operate beyond its service area by providing service in an area generally described as a triangle, bounded by 63rd Street on the north, U. S. Highway 50 on the southwest and Blue Ridge Boulevard on the northeast. This area was within the general limits of the territory of Raytown as defined in the 1925 Jackson County Court order. The area was also included within the boundaries of District No. 2. After a hearing, the Commission dismissed the complaint on the grounds that the area was within the limits of the service area granted Raytown in its original certificate from the Commission. Public Water Supply Dist. No. 2 of Jackson County, Missouri v. Raytown Water Co., 2 Mo.P.S.C. (NS) 462, 85 P.U.R.(NS) 321.

In 1950, Raytown was incorporated as a city. Generally speaking, its south boundary was 75th Street and its northern boundary 53rd Street. Included within the city limits was area served by Raytown Water Company in the north part of the city and by District No. 2 in the south. Subsequently, by annexation, the southern city limits were extended to just below 87th Street, the annexed area being within the limits of District No. 2. Annexations by Kansas City and Independence have resulted in those cities now completely surrounding Raytown. Those annexations have had the effect of limiting the service areas of both Raytown Water Company and District No. 2, because, in the areas annexed by Kansas City, the city took over the water distribution systems as part of the municipal system.

Since its incorporation in 1950, the City of Raytown has grown from a population of 550 to a population of approximately 25,000 at the time of the hearing before the Commission.

Around 1960, development for residential purposes of areas in the southwest part of the City of Raytown, from 81st to 87th Street, got under way. Prior to that time, Raytown Water Company had not offered service in that area south of 75th Street. Raytown had served an area bounded by Highway 50 on the north and 75th Street on the south, in the southwest corner of the original limits of the City of Ray-town. This area was within the limits of District No. 2 and apparently there was some overlapping of service in this particular area. In 1961, the developers of the 81st to 87th Street area became dissatisfied with the offers of the Water District to supply water to the residences which they proposed to construct. At the request of these developers, Raytown installed an 8-inch main on 81st Street Terrace, making an attachment of its main to a large main of the Kansas City municipal water system which ran along the western boundary of the City of Raytown. The Kansas City municipal system was the source of supply for Raytown Water Company in the new area, as well as in the other portions of its service area.

Raytown Water Company laid mains along 81st Street Terrace, Spring Valley Road, 83rd Street and Elm Street. District No. 2 also had mains in those streets in the same area. Raytown laid additional mains and laterals on 82nd Street, 82nd Street Terrace and 85th Street. Laterals were also constructed into the three subdivision developments which were under way. These lines did not parallel those of District No. 2 on those streets, as the District lines either did not enter the area or stopped short of the area Raytown sought to serve.

The service by Raytown from its connection with the Kansas City municipal system at 81st Street Terrace was the subject of the complaint before the Commission. The District contended that the area was beyond that which Raytown had been authorized to serve in its certificate from the Commission and within the District’s boundaries. The Public Service Commission found that the area in question was within the service area prescribed for Ray-town by the Commission’s 1925 order. The Circuit Court concluded that the Raytown service area, granted by the 1925 order, was limited by the franchise which it had received from the Jackson County Court and that, under such franchise, the company was not authorized to provide service south of 79th Street. The court set aside the order dismissing the complaint and remanded the cause to the Commission.

Essentially, the question presented is whether or not the 1925 order of the Commission, granting Raytown the right to operate as a public utility, authorized the company to serve an undefined area generally in the vicinity of the community of Raytown in Jackson County or whether the service area permitted thereunder was limited by the consent which Raytown obtained from the Jackson County Court and which specified certain streets and roads on which Raytown was permitted to construct its waterworks system.

The appellants attack the judgment of the circuit court on the grounds that the court erroneously substituted its findings of fact in the matter for those of the Public Service Commission which were supported by substantial evidence. By Section 386.510, RSMo 1959, V.A.M.S., judicial review of an order of the Commission is limited to its “reasonableness or lawfulness.” Many cases announce the proposition that, insofar as “reasonableness” is concerned, the courts accept factual findings of the Commission supported by competent and substantial evidence on the whole record, and that the courts cannot substitute their findings of fact for those of the Commission. State ex rel. Missouri Water Co. v. Public Service Commission, Mo.Sup., 308 S.W.2d 704, 713(2); State ex rel. Chicago R. I. & P. R. Co. v. P. S. C., Mo.Sup., 312 S.W.2d 791, 796(3, 4) ; State ex rel. Hotel Continental v. Burton, Mo.Sup., 334 S.W.2d 75, 78(1).

Here we are concerned with the interpretation of the 1925 order of the Commission. In State ex rel. Orscheln Bros. Truck Lines, Inc. v. Public Service Comm., 232 Mo.App. 605, 110 S.W.2d 364, 366, the court upheld the right of the Commission to interpret its own orders, stating:

“It will not do to say that the commission cannot interpret its own orders. Denial of the power of the commission to ascribe a proper meaning to its orders would result in confusion and deprive it of power to function. In interpreting its orders it does not act judicially, but as a fact-finding agency.”

See also State ex rel. Mo. Pac. Freight Transp. Co. v. Public Service Comm., Mo.App., 312 S.W.2d 363, 365.

In those cases, the interpretation was basically one of fact and findings of the Commission in such event would, on review, be accorded the same effect as other facts found by the Commission. However, interpretation is not necessarily limited to questions of fact. An order of an administrative agency must be construed in conformity with the authority under which it was issued. 2 Am.Jur.2d, Adm.Law, Section 474, page 283. Insofar as the inquiry on review relates to the authority under the law of the Commission, it relates to a question of law, not of fact, and the Commission’s conclusions are not controlling on the courts. Here, the circuit court concluded that proper interpretation of the 1925 order of the Commission required that it be limited by the provisions of Section 393.170, RSMo 1959, V.A.M.S. Such determination presents a question of law, not of fact, for review.

At the time of the issuance of the original certificate to Raytown in 1925, Section 10481, RSMo 1919, now Section 393.170, RSMo 1959, V.A.M.S., was in effect. It provided then and provides now, in part, as follows:

“1. No gas corporation, electrical corporation or water corporation shall begin construction of a gas plant, electric plant or water system without first having obtained the permission and approval of the commission.
“2. No such corporation shall exercise any right or privilege under any franchise hereafter granted, or under any franchise heretofore granted but not heretofore actually exercised, or the exercise of which shall have been suspended for more than one year, without first having obtained the permission and approval of the commission. Before such certificate shall be issued a certified copy of the charter of such corporation shall be filed in the office of the commission, together with a verified statement of the president and secretary of the corporation, showing-that it has received the required consent of the proper municipal authorities.”

In compliance with the requirements of this section and the rules of the Commission, Raytown sought from the Jackson County Court its consent to the use of county roads and highways. No broad, general consent of the court was requested and none was granted. Instead, the request was limited to the use of specified roads and highways of Jackson County and the con•sent granted was in the same terms. The application of Raytown to the Commission did request permission to serve Jackson County, generally. However, if such authority could not be granted by the Commission absent the consent generally of Jackson County to the use of its roads and highways, that portion of the application which requested general authority to serve Jackson County could not determine the scope of the authority granted.

The necessity and effect of county court consent to the utilization by a public utility of county roads and highways in an unincorporated area of a county has regularly been recognized by the Commission itself. In Re Southwest Water Co., 25 Mo. P.S.C. 637, 41 P.U.R. (NS) 127, the Missouri Public Service Commission refused a certificate to a water company which sought to operate in Jackson County. Refusal was based upon the failure of the appellant to show that consent of the Jackson County Court to the use of the county roads and highways had been obtained. In answer to the contention that Section 393.170 does not apply in instances where a utility pro-posed to operate in unincorporated areas of a county, the Commission’s report stated:

“An examination of the findings of this Commission for many years back will show that the Commission has consistently required a showing that the applicant has secured the consent of what is considered proper municipal authority before granting authority to own, lease, construct, maintain, and operate any water, gas, electric, or telephone system as a public utility. Consent of the city, town, village, the county court •or the State Plighway Commission, depending upon whether the line or system was to be placed within the incorporated city, within the unincorporated area of the county, or along a state highway, has always been made a condition precedent to the granting of such certificate by this Commission.”

In Re Union Electric Co., 3 Mo. P.S.C. (NS) 157, 160, 88 P.U.R.(NS) 33, the Commission recognized that the permission granted by a county court, pursuant to Section 229.100, RSMo 1959, V.A.M.S., to a public utility to use the county roads is a “county franchise,” supplying the consent required by Section 393.170.

If, as stated in Southwest Water Co., supra, the county “franchise” is a condition precedent to the issuance of a certificate by the Commission for an operation involving use of county roads in unincorporated areas of the county, it must follow that the authority which the Commission confers must be in accord with the “franchise” which the county grants. Otherwise, the requirements of Section 393.170, insofar as municipal consent is concerned, would be practically meaningless.

The courts have recognized that the corporate charter and the local franchise provide the fundamental bases for a public utility’s operation and that the certificate of the Commission cannot enlarge the authority thereby conferred. In State ex rel. Harline v. Public Service Comm., Mo.App., 343 S.W.2d 177, 181(3), the court stated:

“The certificate of convenience and necessity granted no new powers. It simply permitted the company to exercise the rights and privileges already conferred upon it by state charter and municipal consent. State ex inf. Shartel ex rel. City of Sikeston v. Missouri Utilities Co., 331 Mo. 337, 53 S.W.2d 394, 89 A.L.R. 607. The certificate was a license or sanction, prerequisite to the use of existing corporate privileges.”

Therefore, although the application of Raytown Water Company did request that the Commission grant it authority to lay its water mains generally throughout Jackson County, the Commission’s authority to grant that prayer was necessarily limited by the requirement that the consent of Jackson County be obtained for the use of the county roads for such purpose. Viewed in such light, the authority granted by the order on Raytown’s application to construct and operate the “water distribution system described in the application and at the hearing” must have referred to the system for which a county “franchise” had been granted, since that was the only system which the Commission had the power to authorize.

We need not here determine the extent to which a county “franchise,” limited to specified roads and highways as this one was, is subject to enlargement in order to permit a utility to extend its system in order to meet the needs of its original area as it grows. See 43 Am.Jur., Public Utilities and Services, Section 47, page 601. Here, there is no question of the extension of the Raytown system which had been installed under the consent of the county court. Instead, Raytown sought to enter a new area, unconnected with its previous system.

To limit the authority granted Ray-town by the 1925 order does not, as appellants contend, constitute a collateral attack, in violation of Section 386.550, RSMo 1959, V.A.M.S., on such order. Such limitation in no way questions the validity of the original order. Interpretation of an order necessarily acknowledges its validity and does not constitute a collateral attack. State ex rel. Orscheln Bros. Truck Lines, Inc. v. Public Service Comm., 232 Mo.App. 605, 110 S.W.2d 364, 366.

We are of the opinion that the order of the Commission on the 1949 complaint by District No. 2 against Raytown is not res judicata of the question here presented. The issue in that case differed from the issue here. The area in which the right of Raytown to serve was upheld was clearly within the limits of the county court franchise. The mere fact that the Commission concluded that there was no necessity at that time for the determination of Ray-town’s southern boundary does not mean that such boundary did not exist.

As we have previously pointed out, the interpretation of the certificate in this case is primarily a matter of law. Therefore, it would not matter that, as appellants contend, the Commission’s finding that the community of Raytown included the area in question is supported by competent and substantial evidence. Such contention would be relevant only if the certificate authorized the company to serve, generally, the Raytown community. In such event the Commission’s finding of fact as to the limits of such community would be significant. In their contention, appellants assert that the circuit court, in concluding that 79th Street marked the southern limit of the company’s service area, overlooked the consent by the county court in its 1925 order to the use by the company of 81st Street. The order does include the following among the roads and streets enumerated in it: “81st Street Road. From the eastern limits of Kansas City east to Coal Mine Road.” Insofar as the record shows, no reliance has been placed upon this provision of the county franchise for the service here in question. There appears to be a possibility that this reference was erroneous. None of the maps in the record before us show that 81st Street Road intersected Coal Mine Road. The maps do show that 51st Street did so. Other roads and streets in such vicinity are included in the county franchise. Just what was referred to would be a factual matter, to be determined by the Commission.

We disagree with appellants’ contention that the certificate of the company should be construed to include the city limits of the City of Raytown when it was incorporated and as thereafter extended. When the certificate was issued in 1925, there was no incorporated City of Raytown. It did not come into existence until 1950. No franchise from the city is here relied upon. The subsequent incorporation of a city, named Raytown, did not, on the facts here presented, have the effect of enlarging the franchise which had been granted nor of limiting it to the incorporated city. In State ex rel. St. Joseph Water Co. v. Geiger, 246 Mo. 74, 154 S.W. 486, 487, L.R.A.1916A, 1060, relied upon by appellants, a municipal franchise had been issued and was held to have covered an extension of the city limits. No such franchise is involved here.

The circuit court’s construction of the certificate does not permit the county court to limit a certificate issued by the Commission. The construction merely gives effect to Section 393.170. It is no answer to the requirements of that section to say that the roads and streets involved are no longer under the jurisdiction of the county court. At the time of the issuance of the certificate, the roads were under the court’s jurisdiction and that body had the sole authority' to grant the consent required as a condition precedent to the issuance of the certificate. Section 64.090, RSMo 1959, V.A.M.S., relating to county planning and zoning, has no application to the question here presented.

The judgment of the circuit court, remanding the cause to the Commission for further proceedings, is affirmed.

COIL and HOUSER, CG, concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner. PER CURIAM. HYDE, Judge. EAGER, Chief Justice

license: Public Domain

text:
    GENERAL INSTALLATION COMPANY, a corporation, Respondent, v. UNIVERSITY CITY, a Municipal Corporation, Charles Henry, City Manager of the City of University City, Victor Ellman, Director of Finance, City of University City, and Peter Gaffney, Chief of Police, City of University City, Appellants.
    No. 50072.
    Supreme Court of Missouri, En Banc.
    June 8, 1964.

      John H. Lashly, Elihu M. Hyndman,. Lashly, Lashly, Rava, Hyndman & Rutherford, St. Louis, for appellants.
    Greensfelder, Hemker & Wiese, Mark R-Gale, St. Louis, for respondent.
   STOCKARD, Commissioner.

Defendants have appealed from an adverse judgment in plaintiff’s action for a declaratory judgment in which it requested and obtained a ruling that it is not required to pay, in addition to that previously paid, any business or occupation license fee or tax for the years 1958-1960 to the City of University City, Missouri, (hereafter sometimes referred to as the “City”). The issues on this appeal require the construction of Section 71.610 (all statutory references are to RSMo 1959, V.A.M.S.), a revenue law of this state, and for that reason appellate jurisdiction is in this court. Long v. City of Independence, 360 Mo. 620, 229 S.W.2d 686.

Art. VI, Sec. 19, Constitution of Missouri, provides that “Any city having more than 10,000 inhabitants may frame and adopt a charter for its own government, consistent with and subject to the constitution and laws of the state, * * Pursuant to this authority University City adopted such a charter on February 4, 1947, and it is what is generally referred to as a constitutional charter city. Section 71.610, in effect when the charter was adopted and still in effect provides that “No municipal corporation in this state shall have the power to impose a license tax upon any business avocation, pursuit or calling, unless such business avocation, pursuit or calling is specially named as taxable in the charter of such municipal corporation, or unless such power he conferred by statute.” The City admits in its brief that “such power” for a constitutional charter city has not been conferred by statute. Subsec. (20) of Sec. 17 of the City’s charter provides that the city ■council shall have the power by ordinance to:

“License, tax, and regulate all businesses, occupations, professions, vocations, activities or things whatsoever set forth and enumerated by the statutes of this State now or hereafter applicable to cities of the First, Second, Third or Fourth Class, or of any population group, and which any such cities are now or may hereafter be permitted by law to license, tax or regulate.”

Pursuant to the above charter provision the City enacted by ordinance a Municipal Code, Chapter IX of which is entitled “Licenses and Business Regulations.” Therein a license tax is imposed on numerous specially named businesses, occupations, vocations, and activities, one of which is “Merchants.” Each merchant is required to secure a license each year and pay therefor a tax computed on the basis of “the amount of gross sales made * * * during the preceding calendar year.”

Respondent is a corporation with its principal place of business in University City, and is engaged primarily in the business of “construction contracting,” especially with respect to the construction and installation of piping, tubing, conduits, valves, regulators, insulation and air heating and cooling equipment in or about buildings and structures. In addition, it sells “across the counter” at its place of business various items of building equipment and merchandise. Starting in 1948, and continuing each year thereafter, respondent applied to and obtained from the City a license to do business, and with its application therefor it reported as gross receipts, for purpose of computing the license tax, only those receipts from “across the counter” sales of equipment and material. For example, in its application for a license for the year 1958 respondent reported gross receipts for the year 1957 in the amount of $23,989.06. It did not report additional gross receipts in the amount of $2,261,345.00 derived from its “construction contracting” business. Prior to February 1, 1960 there was no ordinance purporting to impose a license tax upon the business or occupation of “construction contracting” or “contractor.” University City has demanded that respondent pay a license tax for the year 1958 based on the total gross receipts from its business as a construction contractor and from its business in making “across the counter” sales of equipment and merchandise at retail. Similar demands have been made for the license tax for the years 1959, 1960 and 1961.

Respondent contends, and the trial court held, that University City has no power to impose a license tax or fee on respondent “since the occupation of contracting or construction contracting is not specially named as taxable in the City’s charter.” The City contends, on the other hand, that “utilizing the legislative technique of incorporating the provisions of certain statutes of Missouri by reference is consistent with Section 71.610.” It apparently is agreed, there being no contention to the contrary, that if the incorporation by reference technique is permissible, then the business of respondent as a “construction contractor” is specially named as taxable in the referred to statutes, and that the description or identification of the statutes incorporated by reference is adequate.

A charter of a city adopted pursuant to Art. VI, Sec. 19, Constitution of Missouri, constitutes an act of legislation. “This is because the sovereign people of the State by their Constitution have set over, transferred or granted to the people of the city a part of the State legislative power. The part so granted is the legislative power to frame and adopt a charter for local self-government. Hence it is said charter provisions (‘consistent with and subject to the Constitution and laws of the state’) have the force and effect of enactments of the legislature.” Giers Imp. Corp. v. Investment Service, 361 Mo. 504, 235 S.W.2d 355; Kansas City v. Frogge, 352 Mo. 233, 176 S.W.2d 498; McGhee v. Walsh, 249 Mo. 266, 155 S.W. 445. The power to tax is a governmental function inherent in the sovereign people of the state and may be exercised or delegated by the legislature subject to constitutional limitation. The delegation in this case to University City was by charter, but subject to constitutional limitations, Giers Imp. Corp. v. Investment Service, supra, and one of those limitations was that the legislative act constituting the charter was to be “consistent with and subject to the * * * laws of the state,” including Section 71.-610.

What was attempted to be done in this case was for the inhabitants of University City, in the exercise of their constitutionally delegated legislative power, to incorporate by reference into their legislative act the specific terms of another legislative act dealing with the same general subject. This is generally recognized in this state as well as in other states, in the absence of a constitutional inhibition, to constitute a valid method of legislation. State ex rel. Cairo Bridge Commission v. Mitchell, 352 Mo. 1136, 181 S.W.2d 496, certiorari denied 323 U.S. 772, 65 S.Ct. 131, 89 L.Ed. 617; State v. Stroemple, 355 Mo. 1147, 199 S.W.2d 913, certiorari denied Skiba v. Missouri, 331 U.S. 857, 67 S.Ct. 1746, 91 L.Ed. 1864; State v. Rogers, 253 Mo. 399, 161 S.W. 770; State ex rel. School District of Kansas City v. Lee, 334 Mo. 513, 66 S.W.2d 521, 523; State v. Lloyd, 320 Mo. 236, 7 S.W.2d 344, 346; State v. Peyton, 234 Mo. 517, 137 S.W. 979, 980 ; 82 C.J.S. Statutes §§ 71-72; 50 Am.Jur. Statutes §§ 36-39. This technique is not limited to the adoption by reference of previous statutes or acts of the same legislative body. For example, a federal statute may be enacted and made applicable in a state by adequate reference thereto in a state legislative act, 82 C.J.S. Statutes § 70b, and in Freding v. Minneapolis, 177 Minn. 122, 224 N.W. 845, provisions of a statute were held to be embodied in and made a part of a municipal charter by reference. However, we are not now prepared to say or imply that one legislative body could incorporate by reference the provisions of a legislative act of another legislative body of which those to be bound thereby are not charged by law with constructive knowledge. In the absence of Section 71.610 we think it is clear that the inhabitants of University City, acting in their constitutionally delegated legislative capacity, could by reference validly and properly incorporate by reference into their legislative act, that is, the city charter, the terms and provisions of a statute of the State of Missouri dealing with the same general subject and of which they were each charged by law with constructive knowledge. The determining question, therefore, is whether the use of the incorporation by reference technique in the legislative process by the inhabitants of University City resulted in a failure of the charter as enacted to meet the requirement of Section 71.610 that in order for University City to have the power to impose a license tax on respondent, its business, avocation, pursuit or calling must be “specially named as taxable in the charter.”

In State v. Lloyd, supra, this court said that when a statute, that is, a legislative act, adopts part or all of another statute by a specific and descriptive reference thereto “the effect is the same as if the statute or part thereof adopted had been written into the adopting statute.” This is the rule in other jurisdictions where the incorporation by reference technique is approved. See for example, Sloss-Sheffield Steel & Iron Co. v. Smith, 175 Ala. 260, 57 So. 29, where it was said that “In the construction of such statutes, the statute referred to is treated and considered as if it were incorporated into and formed part of that which makes the reference.” Other statements are to the effect that the provisions of the incorporated by reference statute are a part of the incorporating statute “just as completely as if they had been explicitly written therein,” Pacific First Federal Sav. & Loan Ass’n v. Pierce County, 27 Wash.2d 347, 178 P.2d 351, 355; “to the same extent as though actually incorporated in the former,” Town of Wauwatosa v. City of Milwaukee, 259 Wis. 56, 47 N.W.2d 442; and “as though the provisions had been set forth verbatim and at length,” Union Cemetery v. City of Milwaukee, 13 Wis.2d 64, 108 N.W.2d 180, 181. See also the introductory remarks to the annotation at 168 A.L.R. 627, and the statement in 50 Am.Jur. Statutes § 38 that “The adoption of an earlier statute by reference makes it as much a part of the later act as though it had been incorporated at full length.” This necessarily must be so. If the incorporation by reference technique is permissible, and it is in Missouri, the incorporated language becomes a part of the incorporating legislative act for all purposes. It cannot be there for some and not there for others. We conclude that Subsec. (20) of Sec. 17 of the charter of University City incorporated therein as a part of the charter the “businesses, occupations, professions, vocations, activities or things whatsoever set forth and enumerated by the statutes of this State * * * applicable to cities of the First, Second, Third or Fourth Class * * * which any such cities are * * * permitted by law to license, tax or regulate,” which admittedly includes the business of respondent, and that by such authorized technique the business of respondent was “specially named'm the charter as taxable” to the same extent and with the same effect as if the words and terms of the incorporated statutes had been copied and set forth in the charter haec verba. For the above reasons we conclude that the trial court erred in its ruling that “the occupation of contracting or construction contracting is not specially named as taxable in the city’s charter.”

Respondent contends, however, that if it be held that University City had the power to impose by ordinance a license tax on its business or activities as a contractor, it did not do so prior to February 1, 1960, and as to this contention we agree.

In Chapter IX of the Municipal Code, entitled “Licenses and Business Regulations,” a license tax is imposed on numerous businesses and activities, but the business or activity of construction contractor or contractor is not included. The city contends that such activity is included in the ordinance definition of a merchant. Section 911.1 of the Municipal Code defines a merchant as “Whoever shall deal in the selling of any goods, wares or merchandise at any store, stand or place occupied for that purpose within the city * * Respondent was a merchant within this definition as to its “across the counter” sales, and it reported the gross receipts therefrom and paid the license tax. The city relies primarily on a further definition of merchant in Section 911.6 of the Municipal Code as follows: “The term ‘retail merchant’ and ‘wholesale merchant’ as used herein shall include not only any person, firm or corporation who sells goods, wares and merchandise at retail or wholesale to customers, but shall also include any person, firm or corporation conducting any business in the city who furnishes goods, wares and merchandise to customers in connection with contracts for services of any kind.”

In the agreed statement of facts it is stipulated that respondent is engaged “in the business of construction contracting,” and that in so engaging it “furnishes and employs labor and consumes material in the performance of construction contracts.” We think it unnecessary to determine whether a city which has the authority to impose a license tax on the business of a “merchant,” can by ordinance impose such tax and then define the term “merchant” to include one engaged in the business of constructing buildings under contract. The determining factor in this case is that Section 911.6 purports to define a merchant as one “who furnishes goods, wares and merchandise to customers in connection with contracts for services,” and the parties have stipulated and agreed that respondent •does not do this, but on the contrary, it consumes the goods, wares and merchandise. This stipulation and agreement has support not only in the facts of this case but is in accord with the ruling in City of St. Louis v. Smith, 342 Mo. 317, 114 S.W.2d 1017, that contractors use and consume materials in order to produce the finished product in compliance with their contract. In addition, to give the ordinance the strained and unrealistic construction contended for by the city would be contrary to the rule that a liberal construction of a municipal ordinance is not authorized when the taxing power is sought to be exercised. City of St. Louis v. Pope, 344 Mo. 479, 126 S.W.2d 1201; City of Sedalia ex rel. and to Use of Ferguson v. Shell Petroleum Corporation, 8 Cir., 81 F.2d 193, 106 A.L.R. 1327. We note also that on February 1, 1960, University City amended its Municipal Code by enacting a new Chapter IX thereof relating to licenses and business regulations. In this new chapter it imposed a license tax on “merchants,” and in a separate section it imposed a license tax on “contractors of all kinds including but not limited to: building, * * *.”

We conclude that the business or activity ■of “construction contractor,” or its equivalent in meaning, is specially named as taxable in the Charter of University City, but that prior to February 1, 1960, University City had no ordinance imposing a license tax on respondent’s business of “construction contractor.”

The judgment is reversed and the cause remanded for such further proceedings as may be necessary to determine the amount of tax due by respondent, and for the entry of a judgment in conformity with the views here expressed.

PER CURIAM.

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

STORCKMAN and LEEDY, JJ., concur.

HYDE, J., concurs in result in separate concurring opinion filed.

HOLMAN and DALTON, JJ., concur in result and concur in separate concurring opinion of HYDE, J.

EAGER, C. J., dissents in separate dissenting opinion filed.

HENLEY, J., not sitting.

HYDE, Judge.

I concur in result reached in the principal opinion but I only agree that Subsec. (20) of Sec. 17 of the charter of University City incorporated therein as a part of the charter the “businesses, occupations, professions, vocations, activities or things whatsoever set forth and enumerated by the statutes of this State * * * applicable to cities of the First, Second, Third or Fourth Class * * * which any such cities are * * * permitted by law to license, tax or regulate,” as designated in such statutes as they stood at the time of the adoption of the charter of University City. Although it is not directly stated, it may seem to be implied that such an adoption by reference in the charter would include businesses, occupations, professions, etc., later included in such statutes by amendments made thereafter by the legislature. I think it should be made plain that only the businesses, occupations, professions, etc., included in the statutes referred to at the time of the adoption of the charter of the city, would be incorporated by reference in the charter of the city and that it could obtain no further taxing authority from later amendments of these statutes.

EAGER, Chief Justice

(dissenting).

I do not believe that the legislative enactment (§ 71.610) providing that no such city license tax shall be imposed upon any “business avocation, pursuit or calling” unless it “is specially named as taxable in the charter of such municipal corporation” is complied with by a mere attempt to adopt by reference all statutory provisions applicable “to cities of the First, Second, Third, or Fourth Class, or of any population group, and which any such cities are now or may hereafter be permitted by law to license, tax or regulate.”

Certainly the use in § 71.610 of the words “specially named” must indicate some significant legislative intent; to me they do not signify that the charter may include a blanket incorporation by reference of all statutory authorizations. In fact, I do not believe that they permit any incorporation by reference, and I would hold invalid all the taxes sought to be imposed on Respondent, in view of the City’s obvious effort to circumvent the requirement of the statute.

Also, the attempt to include all future statutory changes, in my view, renders subsection (20) of Sec. 17 of the charter so vague as to make it wholly void.

I would affirm the judgment of the trial court.


author: COIL, Commissioner. PER CURIAM:

text:
    Kim HINDS, Appellant, v. Allen C. KIRCHER, Respondent.
    No. 50065.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 8, 1964.

      Chopin & Boisaubin, George D. Chopin, St. Louis, John Canestraight, Jr., Columbia, Duncan R. Jennings, Montgomery City, for appellant.
    Robert C. Smith, Smith & Lewis, Columbia, Walter D. McQuie, Jr., Montgomery City, Smith & Lewis, Columbia, of counsel, for respondent.
   COIL, Commissioner.

Kim Hinds sought to recover $50,000 for alleged personal injuries he received and $25,000 for the averred wrongful death of his wife as a result of the claimed negligence of defendant, Allen Kircher. A jury found for defendant and plaintiff appealed from the ensuing judgment. Appellant contends the trial court erred in giving defendant’s contributory negligence instructions 5 and 6.

The unfortunate accident, the subject of this litigation, occurred about 4:30 in the afternoon of November 26, 1960. The pavement was dry, the weather clear, and the visibility good. Mr. Hinds was proceeding east on U. S. Interstate Route 70, a 4-lane highway. The two eastbound and the two westbound lanes are separated (in the area in question) by a concrete median strip about 6V2 feet wide and elevated about a foot above the surface of the adjacent traffic lanes. After an eastbound vehicle passes Columbia’s city limit, it travels under the Providence Road overpass. An access ramp runs east from Providence Road and joins the eastbound lanes of Route 70; and at the same time the ramp runs into (or becomes) a third eastbound lane which continues for 1,206 feet where it becomes an exit ramp to Highway 63. South of this third lane is a five-foot shoulder which extends for the entire distance of such third lane. Thus, as one travels east on 70, at the time he passes under Providence Road there are two eastbound traffic lanes; when one reaches the point where the northwest “corner” of the Providence Road access ramp touches and joins eastbound Route 70 there are, in effect three eastbound lanes, the inside lane being 14 feet 8 inches wide, the center lane being 12 feet wide, and the third or south lane being approximately 14 feet 4 inches wide.

At the time in question Mr. Hinds, with his wife as a front seat passenger, intended to or was attempting to pass a truck driven by defendant Allen Kircher when, for a reason much in dispute, his automobile, apparently out of control, swerved onto the median strip, skidded sideways eastwardly (knocking over a metal reflector pole) for a distance of approximately 100 feet and into the inner westbound traffic lane where his automobile was struck by a westbound car.

It was plaintiff’s theory, and there was substantial evidence to support it, that his automobile went out of control as a result of Kircher’s truck, which had been traveling eastwardly in the south of the two regular eastbound lanes, suddenly and without warning swerving into the inside eastbound lane, making contact with plaintiff’s car and thereby causing plaintiff to come into subsequent collision with the westbound car.

It was defendant’s theory, supported by substantial evidence, that his truck at all times proceeded east in the south of the two regular eastbound lanes at 35 to 40 mil-bs per hour without veering or changing course until he reached a place where he turned right into the third or southernmost lane in order to turn off 70 and onto Pligh-way 63; that defendant turned off 70 onto 63 and traveled to his home; that he had no knowledge of any collision or contact either between his truck and plaintiff’s car or between plaintiff’s car and any other vehicle; and that he knew nothing of any claim that he had been involved in the accident in question until the following day.

Inasmuch as there was a defendant’s verdict, we shall hereinafter, in connection with plaintiff’s various points, state the evidence pertinent to each from a standpoint favorable to defendant.

Plaintiff contends the trial court erred in giving defendant’s contributory negligence instruction 5 based on plaintiff’s excessive speed.

Section 304.012 (all section citations herein refer to sections of RSMo 1959 and V. A.M.S.) provides in paragraph 1: “Notwithstanding any speed limits to the contrary, in operating a motor vehicle on a divided limited access highway, through an incorporated area, the same may be driven at the speed provided by law outside of such incorporated areas, except at intersections or approaching or leaving intersections, where traffic is at the time entering or leaving said highway, or in areas where there is a congestion of traffic, at which said places, said rate of speed shall not be in excess of fifty-five miles per hour.”

There was evidence that at the time plaintiff and defendant drove their vehicles under the Providence Road overpass a vehicle was traveling down the access ramp toward the highway. Instruction 5 directed that if the jury found that when plaintiff “came alongside the access ramp” there was another automobile traveling down the ramp to enter Highway 70 and that plaintiff saw or in the exercise of the highest degree of care should have seen that automobile and that plaintiff was then traveling and continued to travel at a speed in excess of 55 miles per hour, plaintiff was negligent, and if that negligence contributed directly to cause the ensuing accident, the verdict would be for defendant.

Plaintiff says there was no substantial evidence that he was exceeding 55 miles per hour at the pertinent time in question. We cannot agree. On the contrary, there was abundant substantial evidence from which the jury reasonably could have found that at the time a vehicle was descending the access ramp toward Route 70, plaintiff’s automobile was traveling and continued to travel to the point of the collision at 65 to 70 miles per hour. Plaintiff’s argument seems to attach some importance to the fact that two of the witnesses who testified to plaintiff’s speed as being between 65 and 70 miles per hour prior to the collision did not observe plaintiff’s car until it was skidding sideways eastwardly on the median strip. As we understand, his suggestion is that it was not reasonably inferable that plaintiff was driving at least that fast when the skid began or when plaintiff’s car went onto the median strip. It would appear that a jury reasonably could have found that a car which is skidding sideways at 65 to 70 miles per hour was undoubtedly traveling as fast or faster just before the skidding began. Furthermore, the very facts that plaintiff’s automobile skidded sideways along the median strip f.r 100 feet, knocking over a 6' 8" high reflector pole, and thereafter into the westbound traffic lane were, standing alone, substantial evidence which would justify a jury finding that plaintiff’s speed exceeded 55 miles per hour when he passed the ramp in question.

Plaintiff next contends that even though there was evidence of speed in excess of 55 miles per hour, there was no evidence from which the jury reasonably could have found that the violation of the 55 miles-per-hour speed limit was a proximate cause of the casualty.

Certainly, as plaintiff contends, there is no presumption that the violation of a speed statute is a proximate cause of an ensuing collision; and proof of a causal connection must be substantial and not based solely upon speculation and conjecture. But plaintiff, it seems to us, has overlooked the fact that the jury was at liberty to believe all or none or any part of any witness’s testimony, “just as the jury finds it to be true or false when considered in relation to the other testimony and the facts and circumstances in a case.” Burr v Singh, 362 Mo. 692, 243 S.W.2d 295, 298 [4, 5]. Thus, the jury in the present case could have believed defendant’s testimony that the truck did not veer from its course in the eastbound lane and, if so, then under plaintiff’s own testimony there would have been no contact between the truck and plaintiff’s car. Further, the jury could have believed the evidence that plaintiff came up behind an automobile which was following defendant’s truck at a fast speed, went around that car and started to pass the truck at a speed of 60 to 65 miles per hour and, as noted, was traveling 65 to 70 miles per hour thereafter. Furthermore, while the evidence was not fully developed, a police officer said he found some skid marks in the south of the two regular eastbound lanes which indicated plaintiff’s car may have skidded prior to the time and place where the skid marks made by plaintiff’s car began on the south curb of the median strip and extended eastwardly for 100 feet along the concrete divider.

The foregoing facts, if found by a jury, constituted substantial evidence to justify a finding that it was plaintiff’s speed alone which caused his car to go out of control and that had he been traveling at 55 miles per hour as required by the statute, instead of at a faster speed, he would have maintained control of his automobile and no collision would have occurred. We reach the same conclusion as stated in Downing v. Dixon, Mo, 313 S.W.2d 644, 650 [4-11], where, in disposing of a similar contention as to lack of proximate cause, the court said, “Under the circumstances here we cannot say, as a matter of law, that no collision would have occurred had ITullct obey-cd that speed ordinance; * * See also Russell v. Kotsch, Mo., 336 S.W.2d 405, 409 [4] ; Snyder v. Jensen, Mo., 281 S.W.2d 802, 808, 809.

Plaintiff’s next two attacks on instruction 5 have to do with the proper interpretation of the language of the statute, Section 304.-012, supra. The first is that the instruction erroneously directed, in effect, that if an automobile was traveling down the access ramp to enter Highway 70 at the time plaintiff “came alongside the access ramp,” the automobile was “entering said highway.” In other words, the court construed this language contained in the statute, “where traffic is at the time entering * * * said highway” to mean that a vehicle “is entering a highway” when it is traveling down an access ramp toward such highway.

The parties have cited no case, and we have found none, interpreting the statute here in question. The language used should be given a reasonable interpretation and, if reasonable, one which will not defeat an apparent purpose of the legislature. See Hay v. Ham, Mo.App., 364 S.W.2d 118, 121 [1 — 3]. We have no doubt that the trial court correctly construed the statute. If the words “entering * * * said highway” meant that a speed limit of 55 miles per hour was imposed only in the event and at the time some part of an approaching vehicle had actually reached or crossed the line forming the south edge of the south lane (of the two regular lanes) of Route 70, the prohibition of the statute would be a vain and useless provision in so far as providing or attempting to provide for the safety of the traveling public. It surely was the purpose of the section to provide for the safety of the traveling public. See Teters v. Kansas City Public Service Co., Mo., 300 S.W.2d 511, 516 [7, 8], It would often be too late, indeed physically impossible, for an eastbound vehicle to slow to 55 miles per hour if the operator of such a vehicle waited to begin slowing until an automobile proceeding down an access ramp had reached or crossed into the lane in which the eastbound vehicle was traveling. It is our opinion that a reasonable construction of the language in question is that “traffic is at the time entering * * * said highway” when a vehicle is traveling down an access ramp toward that highway.

Plaintiff next contends that inasmuch as Section 304.012, supra, requires a speed limit of 55 only at, or approaching, or leaving, intersections, defendant was required “to prove that plaintiff was speeding at an 'intersection.’ ” Plaintiff points to the cases of Wilson v. Toliver, 365 Mo., 640, 285 S.W.2d 575, 579, and Creech v. Blackwell, Mo., 298 S.W.2d 394, 400, which hold that the area of the “intersection” of highways includes the space common to both highways; and from that premise concludes there was no “intersection” involved under the present facts because there was no space common to both highways. As we understand, plaintiff seeks to support his position by arguing that because one may go down the access ramp in question and travel east-wardly in the third (southernmost) lane and exit at Highway 63, some 1,206 feet distant, without ever having entered either of the two regular eastbound traffic lanes, the access ramp does not intersect Highway 70 and, thus, there is no “intersection” which one could approach, be at, or leave.

One of the meanings of “intersection” according to Webster’s Third New International Dictionary is “a place where two or more highways join or cross; * * Section 301.010(8) defines “intersecting highway” as “any highway which joins another whether or not it crosses the same.” The access ramp in question adjoins the outside lane of the two regular eastbound traffic lanes and “joins” Route 70. A motorist, using the access ramp, usually would do so for the purpose of entering one of the regular eastbound lanes, and not for the purpose of using the “third lane” to go from Providence Road to Highway 63 in Columbia. It seems clear to us that there is an “intersection” at the point where an access ramp “joins” a highway analogous to an “intersection” where a side road runs up to a main highway and stops. Such is commonly known as a “T intersection.” See Brumback v. Simpson, Mo., 247 S.W.2d 635, 637 [1] ; Kraft v. Armentrout, Mo.App., 275 S.W.2d 402, 403 [4], We are of the opinion that the place or area where an access ramp joins a highway mentioned in Section 304.012 is an “intersection” within the meaning of that statute.

Plaintiff’s final contention as to instruction 5 is that there was no evidence that Interstate 70 was a limited access highway, and inasmuch as the provisions of Section 304.012, supra, apply only to divided limited access highways the instruction was erroneous in that it did not require the jury to find that essential fact. It is true, of course, as plaintiff contends, that an instruction should require a finding of all disputed essential facts. We do not find any admission or any direct testimony in the record that the highway in question is a limited access highway. It is common knowledge that Interstate 70 is a limited access highway, but if perchance we should not take judicial notice of that fact, we are of the view that the pictures in evidence depicting the entrances and exits to and from the highway in question are some evidence of the fact and, under the circumstances of this case, sufficient evidence of the fact that the highway in the locality of the accident was a limited access highway.

Instruction 6 told the jury that if plaintiff failed to sound his horn before he started to pass defendant’s truck plaintiff was negligent, and if that negligence contributed directly to cause the collision, then the verdict would be for defendant. Plaintiff does not attack the form of the instruction but contends there was no substantial evidence that plaintiff failed to sound his horn before starting to pass the truck, and further, that it affirmatively appears that defendant would not have heard such a warning in any event and, consequently, failure to have sounded the horn was not a proximate cause of the collision.

Plaintiff testified that as he traveled eastwardly at the time in question, ahead of him was an automobile and four or five car lengths ahead of such automobile was defendant’s truck; that when he (plaintiff) started to pass the automobile he twice blew his horn. He conceded that at his deposition he had stated that it was his best recollection that he did not sound his horn as he started to pass the truck. Thus, plaintiff’s own testimony furnished a sufficient basis for a reasonable finding that plaintiff did not comply with Section 304.016 which requires a driver overtaking and desiring to pass a vehicle (under the present circumstances) to sound his horn before starting to pass.

The contention that the failure to sound a horn was not a proximate cause poses a more serious question. Defendant was driving a 2-ton Ford truck equipped with a combination stock and grain bed then loaded with about 14,000 pounds of shelled corn. His brother-in-law was riding with him in the cab. The windows were closed and the radio was on. Both defendant and his passenger testified that as they proceeded under the Providence Road overpass at 35' to 40 miles per hour toward the place where the access ramp joins the highway, they noticed a vehicle proceeding eastwardly down the access ramp; that defendant removed his foot from the accelerator to see what the car on the ramp was going to do. When he discovered that the entering vehicle was slowing he proceeded and thereafter saw, by means of the right-hand cab mirror that the entering vehicle was behind him. Defendant shortly thereafter pulled or turned his truck southwardly into the southernmost of the three lanes in order to exit onto Highway 63. Defendant and his passenger each testified that he did not hear the sound of any horn; that he did not hear the noise of any “crash” such as would be made by the collision of two vehicles; and the passenger testified that he did not hear the “squealing” of brakes. One of defendant’s witnesses, a member of the Columbia police department who happened to be traveling west on 70 near the scene of the accident, testified that he did not see defendant’s truck at any time; that the speed of plaintiff’s car as it came across the median strip was 65 to 70 miles per hour; that the witness had the windows on his car closed but he clearly heard the noise of the collision between the westbound car and plaintiff’s car. He explained, however, that his attention was focused on the fact that a car was skidding sideways along and across the median strip, and, as we read his testimony, he meant that such may have been the reason he was paying attention and thus heard the noise of the collision. He thought a second elapsed from the time he first saw plaintiff’s car on the median strip until the crash. Another of defendant’s witnesses testified that the westbound automobile which collided with plaintiff’s car was traveling at a speed of 65 to 70 miles per hour.

There can be no doubt that the collision between plaintiff’s car and the westbound automobile was a violent one and there must have been some resulting noise. It is also true that defendant’s truck windows were up and that the radio was on and, as noted, neither defendant nor his passenger heard the noise resulting from the collision. On the other hand, a jury reasonably could have found that more than a second elapsed between the time plaintiff had the duty to have sounded his horn and the time of the collision and that during that interval defendant’s truck proceeded eastwardly for 50 or 60 feet; that defendant was intent upon leaving Interstate 70 and had no knowledge that his truck or any part thereof had been involved in a collision with or had struck or come in contact with plaintiff’s car.

If the jury believed defendant’s testimony that he did not at any time swerve his truck to the left, then under no view of the evidence could plaintiff’s failure to have sounded his horn have been a proximate cause of the accident. But the jury was entitled to believe plaintiff’s evidence that defendant did swerve his truck to the left and did interfere with plaintiff’s attempt to pass the truck which caused plaintiff’s car to go out of control, and yet believe that defendant had no knowledge of any such interference. If the jury so found, we properly cannot say, as a matter of law, that if plaintiff had sounded his horn before starting to pass the truck, defendant would not have heard the horn, and that, if he had been so warned, such would not have prevented defendant’s swerve to the left and thus have avoided the accident. It follows that it was for the jury to decide whether plaintiff’s failure to have sounded his horn was, under all the evidence, a proximate cause of the collision. See Hill v. Torrey, Mo.App., 320 S.W.2d 594.

Plaintiff’s other two contentions, that the trial court erred in refusing to give his instructions 10 and 14, are based respectively upon the propositions that there was no substantial evidence of plaintiff’s contributory negligence, and no substantial evidence of excessive speed or that speed in excess of the statutory 55 miles-per-hour limit was a proximate cause. What we have said heretofore disposes of plaintiff’s contentions in those respects.

The judgment is affirmed.

HOUSER and WELBORN, CC-, concur.

PER CURIAM:

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

All concur.


author: HENRY J. WESTHUES, Special Commissioner. PER CURIAM:

text:
    John WARD, Plaintiff-Respondent, v. CITY NATIONAL BANK & TRUST COMPANY OF KANSAS CITY, Defendant and Third-Party Plaintiff-Appellant, v. MOLINE-MONTGOMERY ELEVATOR COMPANY, Third-Party Defendant-Appellant, and Floyd O. Calvert, Henry J. Schneck, Albert L. Darling, and Gordon A. Sparks, Trustees of Murphy Elevator and Service Company, Third-Party Defendants-Appellants.
    No. 50003.
    Supreme Court of Missouri, Division No. 2.
    April 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 8, 1964.

      Robert A. Meyers, Kansas City, George V. Aylward, Jr., Kansas City, for plaintiff-respondent.
    Paul E. Vardeman, Robert H. Kendrick, Kansas City, Johnson, Lucas, Bush & Vardeman, Kansas City, of counsel, for appellants, Floyd O. Calvert, Henry J. Schneck, Albert L. Darling and Gordon A. Sparks, trustees of Murphy Elevator & Service Co.
    Don M. Jackson, Kansas City, Jackson & Wade, Kansas City, of counsel, for appellant, Moline-Montgomery Elevator Co.
    Thomas A. Sweeny, Kansas City, Pop-ham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for appellant City Nat. Bank & Trust Co., trustee.
   HENRY J. WESTHUES, Special Commissioner.

John Ward, plaintiff-respondent, filed this suit, an action for damages, in the Circuit Court of Jackson County, Missouri, against the City National Bank & Trust Company of Kansas City for personal injuries sustained when a self-service elevator in which Ward was a passenger fell about two floors to the bottom of the elevator shaft.

The Bank filed an answer and also a third party petition naming the Moline-Montgomery Elevator Company and' Floyd O. Calvert, Henry J. Schneck, Albert L. Darling, and Gordon A. Sparks, Trustees of the now defunct Murphy Elevator and Service Company, as third-party defendants.

In the course of the opinion, we shall refer to plaintiff-respondent as Ward; to the defendant and third-party plaintiff-appellant as the Bank; and to the third-party defendants-appellants as Moline and Murphy.

A trial resulted in a verdict for Ward against the defendant Bank in the sum of $20,000. The jury further found in favor of the Bank against Moline and Murphy for $20,000. The Bank appealed from the refusal of the trial court to assess attorneys’ fees in the sum of $2,250 against the third-party defendants. Moline and Murphy appealed from the judgment in favor of the Bank.

At this stage, we deem it best to state briefly the facts and the theory of the parties during the trial of this case. On March 10, 1958, Ward, intending to go to the third floor of the Bank building on a matter of business, found the elevator at the first floor, pressed the “UP” button, and the elevator door opened. Ward entered the elevator and when it was nearing the third floor, it suddenly began to descend rapidly and fell to the bottom of the shaft. Ward sustained serious injuries. In his case against the Bank, he relied on the res ipsa loquitur doctrine. It is admitted that Ward was entitled to submit his case to a jury on that theory.

The Bank charged specific negligence against Moline. ‘ It claimed that on March 10, 1958, the day Ward was injured, the elevator could not be operated due to some defect; that Moline was notified and, in response to that call, a service man was sent to make the necessary repairs; that this service man was negligent in permitting the elevator to be used before it had been made safe. The Bank charged that Murphy had negligently installed the elevator in that a neoprene or rubber hose about 15 to 20 inches in length had been used in the supply line next to the piston; that this hose had broken; that this permitted the oil to escape, causing the elevator to drop.

It may be stated here that the elevator in question was an electrohydraulic self-operated elevator. It was equipped with an oil supply tank holding about 150 gallons of oil. When the button marked “UP” was pressed, an electric pump would be put into operation, pumping oil from the tank through a pipe to a piston, and the elevator would thereby be pushed upward. When the “DOWN” button was pressed, the mechanism would be put into motion, permitting the oil to return to the tank and the elevator to descend. Moline and Murphy each denied being guilty of any negligence.

Moline and Murphy each filed separate briefs. Each claimed that the evidence was insufficient to sustain a finding of negligence and therefore the trial court erred in submitting the case to . a jury against them. Each claimed that the trial court erred in refusing their requests to impanel twenty-one veniremen and to permit them jointly to strike three names from the jury list. Moline and Murphy claimed that they as third-party defendants were not parties to the action between Ward and the Bank; that the Bank’s action is one of indemnity against Moline and Murphy and therefore they were entitled to three separate peremptory challenges under Section 494.200, V.A.M.S. We shall dispose of this contention before considering other points briefed. We cannot agree with the contention concerning the jury challenges for the reason that the statute governs this question and it does not authorize more than three challenges to plaintiffs or defendants. The statute, Sec. 494.-200, supra, reads as follows: “In trials of civil causes each party shall be entitled to challenge, peremptorily, three jurors; but when there are several plaintiffs and defendants they shall join in their challenges, and the plaintiff shall, in all cases, announce his challenges first.” (Emphasis supplied.) In 50 C.J.S. Juries § 280b, p. 1069 it is stated, “At common law there is no right of peremptory challenge in civil actions. The right is, therefore, purely statutory and does not exist except where it is expressly so conferred, * * *.”

Moline and Murphy, in their briefs, cited the case of Sutton v. Otis Elevator Co. et al., 68 Utah 85, 249 P. 437, as authority in support of their contentions. It is important to note that the Utah statute is not worded as our statute. See 249 P. 1. c. 454, supra, where, in the course of the majority opinion in the Sutton case, the applicable Utah statutes are quoted. The Utah statute does not say that where there are several plaintiffs or defendants they must join in their challenges. It says that each party is entitled to challenge. Our Missouri courts have held that where there are several plaintiffs or defendants they must join even though their interests may be adverse to each other. White v. Teague, 353 Mo. 347, 182 S.W.2d 288, 1. c. 291(4, 5); Clark v. St. Louis & S. Ry. Co., 234 Mo. 396, 137 S.W. 583, 1. c. 588 (2) ; Adair v. N. W. Electric Power Co operative, Inc., Mo.App., 329 S.W.2d 33, 1. c. 36(3, 4); Kidd v. Chicago, R. I. & P. Ry. Co., 310 Mo. 1, 274 S.W. 1079, 1. c. 1093, 1094(25) (26, 27).

There is no uniform rule or practice governing the number of challenges where there are several parties plaintiffs or defendants. See 50 C.J.S. Juries § 281a (3), p. 1073, and cases there cited. It is the court’s duty to follow the statutory provisions. The trial court complied with the statute and did not err in refusing additional peremptory challenges.

We shall now dispose of the contention that the evidence was insufficient to sustain a verdict against Moline. Murphy installed the elevator during the months of December, 1955, and January, 1956. Murphy had a contract to service and inspect the elevator regularly. The last inspection had been made eleven days prior to the day Ward was injured. The elevator had also been inspected regularly by a city inspector. On March 10, 1958, the elevator went “out of commission.” Through a mistake, Moline was notified and requested to send someone to remedy the situation. Not knowing that Murphy had a service contract, Moline sent a service man named Greer to do the work. Greer spent some time in finding the cause of the trouble. After several hours, he found a screw loose on the “UP” control which he replaced and the elevator was put back in operation. Greer and a helper ran the elevator up and down a number of times and it worked properly. While Greer was working to find the trouble, a 10-ampere fuse burned out. It was in evidence that for safety purposes a 10-ampere fuse was usually installed on each side of the shaft. If either burned out, the elevator would not operate. Greer did not have a 10-ampere fuse with him, so he used a 30-ampere fuse while he tested the elevator. After the elevator was tested and functioned properly, Greer left the elevator at the first floor and went to his truck to get a 10-ampere fuse to replace the 30-ampere fuse which he had used in the shaft. It was while he was away that Ward attempted to go to the third floor by way of the elevator and was injured.

It was discovered that a hose about 15 to 20 inches in length had been installed next to the piston as a part of the supply line. This hose had ruptured at one of the ends where it had been attached. A great quantity of oil had escaped and was found in the elevator pit. There was substantial evidence to the effect that the installation of a IS to 20-inch hose next to the piston was not a proper installation and was considered unsafe.

The Bank, by an instruction given at its request, submitted its case to the jury as against Moline on the theory that Greer was negligent in failing to notify the Bank before placing the elevator in operation that the presence of the hose rendered the elevator unsafe. We are of the opinion that the evidence was insufficient to sustain a finding that Greer was guilty of any negligence. It was in evidence that there was some oil in the pit which Greer noticed before he began his search for the trouble which caused the elevator to be out of order. The evidence was that the movements of the piston up and down caused some oil to escape; that such leakage was normal. A circular pan surrounded the piston with a spout attached through which the oil flowed from the pan into a bucket which would be emptied when filled. There was evidence that the bucket had been misplaced which caused the leakage to drip into the pit. There was no evidence that there was any visible defect in the hose. The only duty imposed on Greer was to repair the defect which caused the elevator to be out of service. • It was not his duty to inspect the elevator for the purpose of determining whether the installation was improper. The city, through its agents, had approved the installation as made by Murphy. In the circumstances, it would have seemed odd and out of place for Greer to have found fault with the installation. Greer performed the duty for which he was called and there was no evidence that anything he did was not well done. The Bank cited the cases of Hudson v. Moonier, 8 Cir., 102 F.2d 96; Brunke v. Missouri & K. Telephone Co., 115 Mo.App. 36, 90 S.W. 753; Caldwell v. Payne, Mo., 246 S.W. 312, and other cases in support of the contention that Greer was negligent. To illustrate the rule that is recognized in those cases, we quote from the Hudson case, supra, where the federal court said, at page 99 of 102 F.2d: “In the third place, a still broader ground of liability than the two stated above is found in the Missouri law. It is: That in all cases in which any person undertakes the performance of an act which, if not done with care and skill, will be highly dangerous to the persons or the lives of one or more persons, known or unknown, the law, ipso facto, imposes as a public duty the obligation to exercise care and skill.” (Emphasis supplied.) It is apparent that, measured by that rule, the evidence was insufficient to sustain a finding of negligence on the part of Greer. We rule that the trial court should have directed a verdict in favor of Moline.

We are of the opinion that the evidence was ample to sustain a finding that Murphy was negligent in installing the short hose next to the piston. There was some dispute whether the hose was made of neoprene or rubber. Flowever, under the evidence that was immaterial. Murphy purchased the elevator and its parts from the Murphy Elevator Company of Louisville, Kentucky. (There was no connection between the two corporations except that the third-party defendant was a customer of the Louisville firm.) A Mr. Carlisle, vice president of the Kentucky company, testified (through deposition) that the short hose in question was not included in the equipment shipped to Murphy; that a hose about 6 feet in length was sent. The evidence disclosed that this longer hose had been installed in the supply line, some distance from the piston. The purpose of a hose in the supply line was to absorb the pulsation caused by the electric pump while the elevator was pushed upward. The evidence was that the shorter hose was not necessary. Mr. Carlisle testified that full instructions as to installation of the elevator accompanied the shipment and that a hose next to the piston was not called for. There was no explanation made as to the reason the shorter hose was used except some evidence that it was used to accomplish a fitting or connection of the supply line to the piston; that is, it was necessary to make a slight loop or bend and since the metallic pipe could not be bent, a hose was used. It was in evidence that when the supply line was replaced with all metallic pipe after the hose broke, it was necessary to cut a hole at a different place in a wall to make a straight line. A number of witnesses schooled in the construction or installation of elevators testified that it was not customary to install a hose next to the piston. Some witnesses of many years’ experience had never seen such an installation. There was evidence that those installing hydraulic elevators followed the American Standard Safety Code for Elevators. A new code was published in the fall of 1955. This code disapproved the use of a hose such as the one here in question. This code was published after the installatoin of the elevator in question was begun. However, it was published and Murphy had notice of it before the installation of the elevator was completed. The City of Kansas City did not adopt the new code until January 23, 1956. The elevator had then been completed but had not been turned over to the owner.

Murphy claims, in the brief, that the American Standard Safety Code for Elevators should not have been used as evidence or in the examination of witnesses. To this we cannot agree. Such standards are promulgated by experts in that line of business. Witnesses testified that many concerns followed that code. The fact that the new code was published while the elevator was under construction and was adopted by Kansas City before the elevator was turned over to the owner was a fact which a jury could properly consider on the question of negligence. Reed v. Missouri-Kansas-Texas R. Co., (Court en Banc), 362 Mo. 1, 239 S.W. 2d 328, 1. c. 330(2), and authorities there cited. Murphy says that the evidence of Carlisle should not have been admitted. Much of Carlisle’s evidence was cumulative of evidence given by witnesses of Murphy and Moline. Certainly the evidence of the equipment shipped to Murphy was competent. Carlisle had had years of experience in the field of elevators and was a competent witness. In fact, Murphy relies upon the evidence of this witness to support an instruction which was offered but refused. Under that point concerning the ruling on the instruction, Murphy treats Carlisle, and we say properly so, as an expert.

This brings us to the point wherein Murphy says that the court erred in refusing to give instruction No. 18. This instruction was based on the theory that if the hose broke “because of a latent defect in the hose unknown to and not readily apparent to the employees of Murphy” a verdict against Murphy would not be justified. The Bank urges that the evidence was not sufficient to justify such an instruction. Murphy relies to some extent on the evidence of Carlisle to support the instruction. We need not rule the question because the Bank also says the instruction is improper because it uses the phrase “not readily apparent.” It is contended that the instruction should have said in substance that the defect could not have been discovered by the exercise of ordinary care. We rule that the point has merit and the trial court was justified in refusing the instruction. The instruction could well have been interpreted by a jury to mean that if the defect could not have been easily discovered a verdict for Murphy was justified. That is not the rule. For a comprehensive discussion on this point, see the opinion in the case of Shroder v. Barron-Dady Motor Co., Mo., 111 S.W.2d 66, 1. c. 70, 71(3, 4) (5). It must be noted that in the case before us Murphy installed the elevator and that Murphy had the duty to exercise the degree of care commensurate with the likelihood of persons being injured by reason of defects in the equipment or faulty construction. The offered instruction did not meet the required standard of care.

Finally, Murphy claims that the verdict of $20,000 is excessive. We approach this subject with the rule in mind that an appellate court in Missouri will not and is not authorized to disturb a verdict of a jury unless it is grossly excessive. It would serve no useful purpose to review this question. Those interested may find the subject treated in SA C.J.S. Appeal & Error §§ 1650, 1651, pp. 367-402, where numerous cases, including many from the courts of this state, are cited. Dr. Robert A. Moore, whose chief work was taking care of industrial cases and traumatic surgery, treated Ward for his injuries. He testified that he examined Ward on March 10, 1958; that Ward complained of pain in his left foot and ankle as well as pain in the right ankle and soreness in his back. X rays were taken and on March 11 fractures of the second and third metatarsal bones and the fibula, “or outer ankle bone,” of the left leg were treated. A cast was applied which extended from the “end of the toes up to the groin.” The fibula had not separated but the metatarsal bones had. These were set by manipulation “under fluoroscopic observation.” Later, however, it was discovered that the metatarsal bones had redisplaced themselves. Then, the bones were realigned by an open reduction. Intramedullary pins were inserted to hold them in place. A second cast was applied and Ward remained in a hospital until April 3, 1958. The cast was removed on May 12. Ward used crutches for some time and was given whirlpool hydrotherapy. The bones of the foot healed fairly well. However, a flattening of the left foot will be permanent. A swelling on the top of the metatarsal bones developed which, according to medical evidence, must in all probability be remedied by an operation.

Ward, when injured, was 43 years of age and was employed by I.B.M. corporation as a customer engineer. He was a healthy, physically strong man before the fall of the elevator. He was fond of and had done a great deal of hiking as well as having engaged in various athletic pursuits. His duties required a great amount of walking. The evidence was that the athletic activities had not been engaged in since the date of his injuries and that walking had been painful. According to the evidence, these handicaps will be permanent. There was evidence of other injuries, not so serious, which we need not mention. Ward experienced the usual pain and suffering incident to injuries such as he had. The actual material loss in wages together with doctor and hospital bills amounted to about $3400, exclusive of any future expense for treatments or operations.

The verdict of $20,000 was a liberal award when viewed in the light of a number of previous cases. However, courts would be blind, indeed, if judicial notice were not taken of the continued and gradual reduction of the value of the dollar. In view of all of the circumstances, we cannot say that the verdict is such that we are justified in ordering a remittitur.

We shall now dispose of the appeal of the third-party plaintiff, the Bank, concerning its claim for attorneys’ fees against the third-party defendants. This claim must be based on an implied contract. There was no express contract of indemnity. Murphy denies liability for attorneys’ fees on the theory that the Bank was guilty of laches in notifying Murphy of the Bank’s claim and an opportunity to defend Ward’s action for damages.

The Bank and Murphy each cited in their briefs 42 C.J.S. Indemnity § 13, p. 583. The law there considered applies to express contracts of indemnity and not implied obligations. The law as to implied contracts is found in 42 C.J.S. Indemnity § 24, p. 602, where we find the following concerning costs and attorney’s fees in cases such as the case before us: “Where a person is obliged to defend against the act of another, against whom he has a remedy over, he may, if such other has notice of the suit and an opportunity to defend, hold him liable not only for the amount of damages * * * but also for all reasonable and necessary costs and expenses incurred in such defense, including attorney’s fees.”

In this case, Ward was injured on March 10, 1958, as noted above. He filed suit against the Bank on February 10, 1959. The Bank, on April 28, 1959, filed a general denial. On November 6, 1961, the Bank filed its third-party petition against Moline and Murphy. The Bank admitted it gave no notice nor did it request Moline and Murphy to defend Ward’s suit. In fact, no such demand or request was ever made. The first notice Moline and Murphy had of a charge of negligence against them was the third-party petition which was more than thirty months after the Bank had filed a general denial to Ward’s petition for damages. It is our opinion that the trial court was justified in refusing to allow the Bank to recover attorneys’ fees.

We have examined all questions presented for review and our ruling is that the judgment against the Bank in favor of Ward should he affirmed. The judgment in favor of the Bank and against Moline should be reversed. The judgment in favor of the Bank against Murphy should be affirmed. It is so ordered.

PER CURIAM:

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

All of the Judges concur.