author: WELBORN, Commissioner. STORCKMAN, C. J., HENLEY, Judge. HYDE, Judge. FINCH, Judge.

text:
    ST. LOUIS COUNTY, Missouri, and Lawrence K. Roos, Supervisor, and Theodore Glauert, et al., Plaintiffs-Appellants, v. The CITY OF FLORISSANT, Missouri, Defendant-Respondent.
    No. 51204.
    Supreme Court of Missouri, En Banc.
    July 11, 1966.
    Rehearing Denied Sept. 12, 1966.

      Donald J. Stohr, St. Louis County Counselor, Clayton, Joseph B. Moore, St. Louis County Counselor, Clayton, Lawrence J. Bannes, Special Assistant County Counselor, St. Louis, Lewis, Rice, Tucker, Allen & Chubb and James A. Singer, J. L. Pier-son, and John Torrey Berger, Jr., Clayton, for appellants.
    Carroll J. Donohue, Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for respondent.
   WELBORN, Commissioner.

St. Louis County, its supervisor and various individuals filed suit for a declaratory judgment and injunction in order to nullify action of the City of Florissant annexing adjacent territory. The trial court found the action of the city valid and denied the requested injunctive relief. Plaintiffs have appealed from the judgment. We have jurisdiction because St. Louis County, a political subdivision of the state within the meaning of § 3, Article V, Constitution of Missouri, 1945, V.A.M.S., is a party to the litigation.

Prior to 1963, the City of Florissant operated under a special legislative charter granted in 1857 to the City of St. Ferdinand (Laws of Mo., 1856-1857, p. 574). On May 21, 1963, the voters of Florissant, acting under § 19 of Article VI, Constitution of Missouri, 1945, approved a constitutional charter which became effective September 12, 1963.

On November 11, 1963, the Florissant City Council enacted an ordinance, proposing to submit to the voters of the city, an amendment to the city’s charter, extending the city’s limits. The city limits had not been defined in the original charter. The amendment proposed the adoption of a new section of the charter, defining the city’s limits, as extended, by metes and bounds. On December 23, 1963, the petition in this case was filed in the St. Louis Circuit Court.

Pursuant to the ordinance proposing the charter amendment, an election was held on January 14, 1964, at which the voters of Florissant approved the amendment.

Before examining the evidence on the issue of reasonableness of the annexation, we turn to the contention of the appellant that the purported annexation was invalid because of failure of the city to comply with § 71.015, RSMo 1959, V.A.M.S. (the “Sawyers Act”), and §§ 71.860 to 71.920, Laws of Mo. 1963. Noncompliance by the city with such provisions is admitted. The city’s response is that the statutory requirements do not apply to annexation by a constitutional charter city, but that if they, by their terms, do apply, they conflict with §§ 19 and 20 of Article VI of the Constitution of Missouri, 1945, and are, therefore, invalid.

House. Bill No. 21, enacted by the 72nd General Assembly, Laws of 1963, p. 126, became effective October 13, 1963. The measure now appears as §§ 71.860 to 71.920 of the Revised Statutes. § 71.860 provides:

“The provisions of section 71.015 (the ‘Sawyers Act’) shall apply as well to all cities, towns, villages and municipalities of whatsoever kind, located in any first class county which has adopted a constitutional charter for its own local government, except as provided in section 71.920.” (The exception, which will be referred to hereinafter, is not pertinent here.) St. Louis County, in which the City of Florissant is located, is a constitutional charter county.

The appellants recognize that in 1955, this court, in McConnell v. City of Kansas City, 282 S.W.2d 518, held that the Sawyers Act, insofar as it purported to apply to constitutional charter cities, conflicted with §§ 19 and 20 of Article VI of the Constitution of Missouri, 1945, and that, therefore, the act did not apply to such cities. Appellants assert that the enactment by the General Assembly in 1963 of § 71.860 was “an obvious attempt to reverse by legislative action the holding of the McConnell case insofar as it applies to home rule charter counties.” In just what respect the constitutional problem considered in McConnell would be affected by the governmental structure of the county in which the municipality is located, appellants do not enlighten us. We perceive none which would require reconsideration of the basis of the McConnell holding.

Appellants contend further that the McConnell decision is of questionable authority, in the light of the en banc decision of 1965 in City of Hannibal v. Winchester, 391 S.W.2d 279. Although certain assumptions of McConnell were rejected by the majority of the court in Winchester, nevertheless, the majority opinion in no uncertain terms reaffirms the holding of McConnell. Judge Eager, in the majority opinion, stated: “For these reasons, we hold the Sawyers Act inapplicable, and in so far as it purports to apply to a constitutional charter city as a mandatory procedure, it is also unconstitutional. We adhere to the result and, generally, to the reasoning of the McConnell case.” (Emphasis supplied), 391 S.W.2d 283. In his concurring opinion, Judge Hyde stated: “In any event, Sec. 71.015 cannot be construed as a mandatory requirement for annexation by a charter city as the principal opinion so clearly shows.” 391 S.W.2d 291. In view of this recent pronouncement, we need pursue appellants’ contention in this respect no further.

The questions of the applicability and validity of §§ 71.870 to 71.920 present different considerations. § 71.870 provides:

“The legislative body of any city, town or village located within the boundaries of a first class chartered county shall not have the power to extend the limits of such city, town or village by annexation of unincorporated territory adjacent to the city, town or village in accordance with the provisions of law relating to annexation by such municipalities until an election is held at which the proposition for annexation is carried by a majority of the total votes cast in the city, town or village and by a separate majority of the total votes cast in the unincorporated territory sought to be annexed. There shall be separate elections submitting the proposition of annexation to the two groups of voters, the same to be held simultaneously. The elections shall be held, except as herein otherwise provided, in accordance with the general state law governing elections in first class counties.”

§ 71.880 provides for notice to the election authority and governing body of the county of the annexation proposal. § 71.890 requires four weeks’ publication of notice of the election on this proposal, the last publication to be not less than five days before the election. § 71.900 provides the form of ballot for the election and the certification of the results. § 71.910 prohibits resubmission within two years of a defeated proposal.

§ 71.920 provides, in part:

“In the event that the proposition to annex such territory is approved by a unanimous affirmative vote in both the annexing municipality and the territory sought to be annexed, the annexing municipality, other provisions of this chapter notwithstanding, shall extend its limits by ordinance to include such territory, specifying with accuracy the new boundary lines to which the city, town or village limits are extended.”

The only election on the Florissant annexation proposal was that held in Floris-sant on the charter amendment. However, the city contends that § 71.870, by its terms, is inapplicable to it; that if it is, the entire act, including §§ 71.870-71.920, is infected by the invalidity of § 71.860 as applied to constitutional charter cities; and that, in any event, §§ 71.870-71.920 conflict with the constitutional grant by §§ 19 and 20 of Article VI of the Constitution of Missouri, 1945, to charter cities of power to extend their limits by charter amendment.

In support of its contention that § 71.870 by its terms is inapplicable, the city advances two theories. The first is that in McConnell v. City of Kansas City, supra, this court, in 1955, held that § 71.015, by its terms applicable to “any city” seeking to annex, could not be applied to a constitutional charter city; that, in enacting §§ 71.860-71.920 in 1963, the legislature is presumed to have been familiar with the McConnell decision and to have used the term “city” with the understanding that the term would not include constitutional charter cities. However, the court in McConnell did not limit the meaning of the term “any city” as employed in § 71.015. The court assumed that the term was broad enough to include a constitutional charter city. The inapplicability of the statute to such a city was not due to any insufficiency in the language employed, but wag attributable to constitutional conflicts which prevented application to the full extent of the language employed. We are, therefore, of the opinion that the argument on this basis is without merit.

The city argues further that § 71.870 is not applicable because, by its terms, it purports to limit the authority of the “legislative body” to extend the limits of a city and, in a constitutional charter city, such authority is not vested in the city’s legislative body but rather in the city’s voters, by way of charter amendment. City of Hannibal v. Winchester, supra; McConnell v. City of Kansas City, supra; State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762. At the time of the enactment of § 71.870, statutes applicable to certain classes and types of cities did purport to give full power to annex to the city’s legislative body. See §§ 73.-030-73.060, applicable to cities of first class; § 81.080, applicable to special charter cities of less than 20,000; § 81.200, applicable to special charter cities of between 20,000 and 250,000 population; § 82.090, applicable to constitutional charter cities in which the limits were not defined by the charter. In other classes of municipalities, the legislative body had a hand in the annexation procedure, but did not have complete authority for such purpose. Thus, in second class cities, the authority was vested in “(t)he council of such city, with the consent of the majority of the legal voters of such city voting at an election therefor * * * ” (§ 75.-020), in third class cities, in “(t)he mayor and council of such city,” with similar consent of the voters (§ 77.020), and in fourth class cities, in “(t)he mayor and board of aldermen,” likewise with consent of the voters (§ 79.020). In cities, towns and villages, the town council or board of trustees must petition the county court, which has the authority to order the annexation. § 80.030.

Thus, if the construction contended for by the city is adopted, the effect of the legislation would be considerably limited, as it would be applicable only to first class cities, of which there are none in St. Louis County, and certain special charter cities, the provisions of § 82.090 purporting to grant authority to annex to the legislative body of a constitutional charter city having been declared unconstitutional in City of Hannibal v. Winchester, supra. Any such limitation of the application of §§ 71.870-71.920, by reason of the language of § 71.870, would be contrary to the provisions of § 71.880, part of the same act, which requires “any city, town or village located in a first class chartered county” which desires to annex unincorporated land to certify such fact to the board of election commissioners in order that the elections required by the act may be held.

In construing this legislation, we must, if possible, give effect to the entire act. “(I)t is the duty of the court to reconcile or harmonize, so far as is practicable, the various parts and provisions, including those that are apparently conflicting or inconsistent, * * 82 C.J.S. Statutes § 346, p. 714. In our opinion, the legislature intended the enactment to have the broad general coverage, stated in § 71.880, and not the limited application which would follow the construction urged by the city. This legislation is obviously a part of the continuing struggle in St. Louis County between the county government and the many municipalities of that county over the right to provide local governmental service and to exercise local governmental authority over the portions of the county which have not been incorporated as municipalities. The clear import in this act of legislative policy favoring the county should not be nullified by a construction which would make the act practically meaningless.

We reject the city’s contention that the invalidity of § 71.860, insofar as it would make § 71.015 applicable to constitutional charter cities “infects” the 1963 amendment in its entirety so that the entire act must fall as applied to such cities. We fail to see that the provisions “relating to the dual election are inextricably connected to the provisions requiring a declaratory judgment.” The only such connection pointed out by the city is the elimination of the necessity for a declaratory judgment in the event of a unanimous affirmative vote. However, as to constitutional charter cities, the requirement is nonexistent, so that the ultimate result is the same. The absence of a severability clause is of no significance. See § 1.140, RSMo 1959, V.A.M.S.

Finally, the city asserts the invalidity of §§ 71.870 to 71.920 as applied to it on the grounds that it would result “in the same irreconcilable contradiction between statute and constitution that formed the basis of the holdings in McConnell v. [City of] Kansas City [Mo.], 282 S.W.2d 518; City of Hannibal v. Winchester, supra * * *; and State [ex inf. Taylor ex rel. Kansas City] v. North Kansas City [360 Mo. 374], 228 S.W.2d 762, 771-[772].” We have referred to the first two cases cited previously. In the third, the court declared that a statutory requirement of approval of an annexation proposal by Ys of the voters (§ 7626, RSMo 1939) in a constitutional charter city conflicted with the constitutional requirement of a majority vote for approval of a charter amendment.

The cases relied upon and others do hold that a constitutional charter city has the power to annex adjacent land by an amendment of its charter; that a charter amendment is the only way by which such a city may extend its boundaries; that specific legislative authority to such effect is not required; and that the legislature may not limit the exercise of such power by imposing conditions which conflict with constitutional procedural provisions. However, municipal annexation is “a matter of more than merely municipal affairs and concern.” McDonnell Aircraft Corp. v. City of Berkeley, Mo.Sup., 367 S.W.2d 498, 503 [4]. Consequently,' annexation by a constitutional charter city is subject to control and regulation by the General Assembly, consistently with the constitutionally established procedure for charter amendment. Judge Eager, in the majority opinion in City of Hannibal v. Winchester, discussed McDonnell as follows (391 S.W.2d l. c. 285):

“The Court there also held, however, that the bringing of additional territory into cities without the consent of the inhabitants of the area was a governmental function in which the whole state had an interest; and further, that §§ 19 and 20 of Art. 6 do not give full and unrestricted legislative power to constitutional cities. We interpret this to mean that the legislature may step in where problems of state policy and interest are concerned; that it may express a state policy concerning territory to be annexed, as it has in § 71.015 by requiring that the action be ‘reasonable and necessary to the proper development’ of the annexing city, thus expressly giving to the courts the power to inquire into that question. But the Berkeley case reaffirms the principle that the legislature may not prescribe a procedure for annexation which is in conflict with constitutional provisions; and it does not hold that express legislative authority or power is necessary before a constitutional charter city may make an annexation by charter amendment under § 20 of Art. 6.” (Emphasis supplied.)

He further stated (391 S.W.2d l. c. 286):

“On matters of state policy or interest, including regulations and limitations concerning territory ouside the city, the legislature may act, so long as it does not interfere with the constitutional method of annexation or enact laws inconsistent with it. The statutes recently enacted applicable to first class charter counties (St. Louis County, at present) come within that classification. Sections 71.860-71.920, Laws 1963. Thus, although the legislature may not change the method by which such cities may annex, it may provide the scope of any such annexation and add requirements therefor as, for instance, in the annexation of other cities, towns or villages. See Section 82.090.”

Judge Hyde, in his concurring opinion, stated (391 S.W.2d l. c. 290):

“Although the Legislature cannot change the method by which the charter of a constitutional charter city may be amended, because the Constitution provides the only way it may be done, I recognize that the Legislature may provide the scope of annexation that could be accomplished by an amendment and add requirements therefor as it did in Sec. 82.090 for annexing other cities, towns or villages; and has since done by Secs. 71.860y71.920, Laws 1963, p. 126 as to certain first'class counties.”

Although we agree with counsel for the city that the remarks concerning the statutes here under consideration were dicta in Winchester, nevertheless they are clearly consistent with prior holdings relative to the status of annexation by constitutional charter cities, McDonnell, supra, and with cases upholding the application to constitutional charter cities of enactments of the General Assembly dealing with matters of general state-wide concern. City of Joplin v. Industrial Commission, Mo.Sup., 329 S.W.2d 687; State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502.

We do not find conflict between the statute here under consideration and the constitutional provisions relating to charter amendment. The city urges that there would be conflict with the procedures specified for submission of proposed amendments by a petition of electors or by a charter commission. However, we are called upon to decide the case now before us, not a case arising under other and different circumstances. For the same reason, we do not consider the contention that the prohibition against resubmission of a defeated proposal within two years (§ 71.910) conflicts with § 20 of Article VI. In any event, the city has not demonstrated that “the time necessarily consumed in obtaining [the results of the dual election] would, at least in many instances, make it impossible for the charter city to submit annexation proposals to its electors within the time limits prescribed by the procedure set forth in the constitution,” the problem which was created by the Sawyers Act requirement of a final declaratory judgment and which resulted in the determination of inapplicability of that Act in McConnell v. City of Kansas City, 282 S.W.2d l. c. 522.

In our opinion, §§ 71.870 and 71.-880 are applicable to the action of the City of Florissant in proposing to annex additional territory and so applied, the provisions are valid and constitutional. Failure on the part of the city to comply with such requirements renders null and void the purported annexation pursuant to Ordinance No. 1358 and the election held thereunder.

Appellants also contend that the trial court should have declared invalid Ordinance No. 1326, passed by the Florissant City Council on August 13, 1963, and Ordinance No. 1329, adopted by the Council on August 19, 1963, both enactments having been made while Florissant was a special charter city. Ordinance No. 1326 extended the city’s boundaries. Ordinance No. 1329 expressly repealed Ordinance No. 1326. It also extended the boundaries in terms identical with Ordinance No. 1326, but set an effective date of September 9, 1963. No action was taken to comply with the Sawyers Act with respect to either ordinance. According to the city, it attempted no exercise of jurisdiction under either ordinance over the areas involved. The trial court, in its findings of fact, concluded that the charter amendment superseded Ordinances Nos. 1326 and 1329.

Failure of the city, as a special charter city, to comply with the Sawyers Act would avoid the effect of Ordinances Nos. 1326 and 1329. Julian v. Mayor, Councilmen and Citizens of City of Liberty, Mo.Sup., 391 S.W.2d 864. In order to avoid any question of revival of the ordinances found to have been superseded by the charter amendment which we have held to be invalid, the final judgment should also declare Ordinances Nos. 1326 and 1329 invalid and of no effect.

Therefore, the judgment is reversed and remanded with directions to enter a new judgment declaring the purported amendment to the Charter of the City of Floris-sant, submitted to the voters of said city pursuant to Ordinance No. 1358, is null and void, declaring Ordinances Nos. 1326 and 1329 of the City of Florissant null and void, and enjoining the city from exercising jurisdiction over the area purported to have been annexed and its residents.

PER CURIAM:

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

STORCKMAN, C. J.,

concurs and concurs in concurring opinion of HENLEY, J., but would further hold that the Sawyers Act, § 71.015, RSMo 1959, V.A.M.S., is constitutional and applicable to constitutional charter cities for the reasons stated in his dissenting opinion in City of Hannibal v. Winchester, Mo., 391 S.W.2d 279, at page 291.

HENLEY, J., concurs in separate concurring opinion filed.

EAGER and DONNELLY, JJ., concur and concur in concurring opinion of HENLEY, J.

HYDE, J., dissents in separate dissenting opinion filed.

FINCH, J., dissents in separate dissenting opinion filed.

HOLMAN, J., dubitante.

CONCURRING OPINION

HENLEY, Judge.

I concur in the opinion of Welborn, C., for these additional reasons.

In a supplemental brief filed after the case was transferred to the court en banc, and subsequent oral argument, the city has further discussed its contentions that §§ 71.860 to 71.920 RSMo 1959, V.A.M.S. (Laws of 1963) are invalid as applied to constitutional charter cities, because (1) the dual election requirement of § 71.870 and the procedures prescribed by §§ 71.880 to 71.910 conflict with the procedures prescribed by Article VI, § 20, Constitution of Missouri, V.A.M.S.; and, (2) apart from the conflict between statutory and constitutional procedure, §§ 71.870 to 71.910 are invalid in that they impose limitations on the constitutional grant of power to charter cities.

Much of the city’s argument is devoted to a demonstration of conflicts between the two procedures where the proposition of annexation of territory by a charter city is instituted by either a charter commission or by petition of its electors. We are not in this case presented with a live question as to what the possible conflicts in procedures might be where annexation is proposed by charter commission or petition; a justiciable controversy is not presented by those possibilities. This annexation proposal was instituted by the legislative body of the city; therefore, we are concerned here only with whether the procedures prescribed by the constitution and these statutes are in conflict, where the annexation proposal is instituted by a legislative body. What we might say now about whether the procedures conflict where the annexation proposal is instituted by charter commission or petition would be advisory only and pure dicta.

It is, as stated by the city, well-settled that annexation by a constitutional charter city may be accomplished only by amendment of its charter. City of Hannibal v. Winchester, Mo., 391 S.W.2d 279; McDonnell Aircraft Corporation v. City of Berkeley, Mo., 367 S.W.2d 498. As stated in the opinion by Welborn, C., this court held in the Hannibal case, supra, 391 S.W.2d l.c. 286: “On matters of state policy or interest, including regulations and limitations concerning territory outside the city, the legislature may act, so long as it does not interfere with the constitutional method of annexation or enact laws inconsistent with it.” Do §§ 71.870 to 71.900 interfere with the constitutional method and is the procedure prescribed by those sections inconsistent with that mode established by the constitution ? I say not.

Section 20 of Article VI provides that proposed amendments to the charter shall be submitted to the electors and shall become a part of the charter on approval by a majority. Section 71.870 provides that the legislative body of the city shall not have the power to extend its limits by annexation of unincorporated territory until an election is held and the proposition carried by a majority vote both in the city and the territory to be annexed. That section further provides that there shall be separate, but simultaneous, elections held in the city and the territory to be annexed. Nothing is said in the constitution about holding two simultaneous elections; consequently, such action is not forbidden. The additional requirement of a favorable vote from those residing in the area to be annexed does not change the method of how a city may amend its charter, but instead only provides restrictions on what the city may do by charter amendment. We have recognized that in matters of more than purely municipal interest the legislature can provide restrictions and limitations on what the city may do by charter amendment. See McDonnell, supra, 367 S.W.2d, l.c. 502, where the court said, “Certainly bringing additional territory into cities without the consent of the inhabitants and owners of property therein is an important governmental function in which the whole state has an interest. This is more than a matter of only municipal affairs * * In the McDonnell case we recognized that the legislature had authority to make additional requirements of a charter city where it seeks to annex additional territory. The dissenting opinion herein by Hyde, J., again recognizes that it is within the authority of the legislature to impose additional requirements and refers favorably to § 82.090 as an example of restrictions the legislature may impose on what a charter city may do. That section applies to annexations of incorporated areas by charter cities, and requires a favorable vote first by the electors residing in the area to be annexed as well as a later favorable vote in the charter city. The requirement of a favorable vote first in the area to be annexed is a condition to annexation; a restriction or limitation imposed by the legislature. What would be the result should a proposition to annex an incorporated area fail to receive the required favorable vote of the electors of that area? The obvious answer is that the charter city desiring to annex could proceed no further with its proposal to annex. It has thus been limited and restricted in its right of annexation by legislative requirements. What would be the result where simultaneous elections are held in the charter city and the unincorporated territory to be annexed ? If the proposition should fail to receive a majority vote in either the charter city or the area to be annexed the city could proceed no further with the annexation proposal. The ultimate result is the same, regardless of whether the elections are staggered as required by § 82.090 or held simultaneously as required by § 71.870. Thus the restrictions or limitations imposed on what a city may do by charter amendment in annexing unincorporated territory are no greater than those imposed by § 82.090. The limitations fixed by the legislature in §§ 71.860-71.910 do not conflict with nor are they inconsistent with the constitution.

Section 71.880 provides that before proceeding further with annexation the governing body of the city shall notify the board of election commissioners and the governing body of the county, the notice to include a description of the territory to be annexed and a copy of the city’s order, resolution or ordinance calling the election. Nowhere does this section give either the Board or County Council any power to approve or disapprove the action taken by the city, the section providing merely that they be notified of the city’s action. Section 20 of Article VI provides that proposed amendments to the charter shall be filed with the body having charge of city elections, “setting forth the proposed amendment,” but does not specify who that body shall be. Chapter 113, RSMo 1959, V.A. M.S., provides for the appointment of a board of election commissioners who shall have charge of the conduct of elections in both the county and the city. Since the elections in the city and in the county are to be conducted by the Board (§ 113.010) it is only reasonable and proper to notify that body, and such requirement does not conflict with the constitution.

In the sense that a “notice” of election is required by § 19 of Article VI, requiring “notice” to the Board and County Council, as two additional bodies entitled thereto, does not interfere or conflict with the fundamental purpose of the constitutional requirement of notice. Notice to these bodies does not interfere with or limit the method by which the charter is to be amended.

Section 20 of Article VI provides that the legislative body of the city shall provide by ordinance that any amendment proposed shall be submitted to the electors at an election. Section 19 provides that notice of election shall be published, but neither section makes specific provision as to who shall publish the notice. Therefore, these sections do not exclude notice being given by the board of election commissioners as required by § 71.890.

Section 71.890 provides that the board of election commissioners shall give notice of the time and place of holding the election and the purpose for which it is to be held. Since the Board is responsible for conducting the election in the city and in the unincorporated area to be annexed, it is reasonable and proper that it be the body responsible for giving notice to the electors in both areas. For these reasons, I consider that this section does not interfere or conflict with the method of charter amendment prescribed by the constitution.

There is no conflict between § 71.890 and the basic, fundamental purpose of the notice requirement of the constitution, so long as it meets the minimum requirements for publication prescribed by § 19, Article VI.

Section 19, Article VI provides that: “ * * * The notice of the election shall be published at least once a week on the same day of the week for at least three weeks in some daily or weekly newspaper of general circulation in the city or county, * * * the last publication to be within two weeks of the election.” (Emphasis supplied.) Section 71.890 provides that notice given by the Board shall be published four consecutive weeks in two daily newspapers “ * * * throughout such county,” the last publication to be not more than five days before the election. Further, “in the event there is no daily newspaper * * *” in the county then “ * * * notice shall be given in two weekly newspapers of general circulation.” The constitution requires that the notice be published at least three weeks, whereas the statute requires publication for four weeks; the constitution requires that the notice be published in some daily or weekly newspaper of general circulation in the city or county, whereas the statute requires publication in two daily newspapers of general circulation throughout the county or, in the event there is no such daily newspaper in the county, then in two weekly newspapers; the constitution requires that the last publication be within two weeks of the election, whereas the statute requires that the last publication be not more than five days before the election. Thus, we see that the statute meets or exceeds the minimum requirements for publication prescribed by the constitution.

Respondent asserts that the ballot form prescribed in § 71.900 is patently insufficient under the constitution. That section provides that the annexation proposition shall be submitted to the voters on ballots which shall be substantially in the following form;

“For the annexation. □
Against the annexation. □”

The constitution does not specify the form of the proposition or ballot for annexation, but it must be in form and substance a charter amendment for the city may annex only by amendment of its charter. The statute does not require that the proposition submitted in the city and the territory to be annexed be in exactly the same words, but requires only that it be substantially the same in form. Without any intention of prescribing or dictating the exact form of ballot to be used in the city, I consider that an annexation proposition submitted to the electors of the city in the following form would, in essence, meet the requirement that annexation by a charter city be by charter amendment, and be substantially in the form prescribed by the statute:

“A proposition to amend the charter of the City of Florissant by annexation of the following described unincorporated territory in St. Louis County, Missouri:
“For the amendment. □
Against the amendment. □”

The city contends that “The most decisive conflict between statute and constitution is posed by the limitation of section 71.910.” This section prohibits the resubmission of an annexation proposition for a period of at least two years after it has failed of passage. For the same reason stated in the opinion of Welborn, C., I do not consider this contention. But, to venture dictum: Would not this be a restriction only on what the city may do, rather than an interference or conflict with the method of how it may be done?

I respectfully disagree with my colleague, Hyde, J., who is of the opinion that the opinion of Welborn, C., in effect overrules City of Hannibal v. Winchester, supra; McConnell v. City of Kansas City, Mo., 282 S.W.2d 518; as well as the other cases on which those decisions are based. We do not overrule those cases, but adhere to and reaffirm our holdings therein.

Although the Sawyers Act (§ 71.015) is inapplicable to constitutional charter cities as held in those cases, §§ 71.870-71.900 are applicable to such cities. Failure of the City of Florissant to comply with the latter sections renders null and void the purported annexation.

DISSENTING OPINION

HYDE, Judge.

I respectfully dissent from the opinion of Welborn, C., herein because it would in effect overrule City of Hannibal v. Winchester, Mo.Sup., 391 S.W.2d 279; McConnell v. City of Kansas City, Mo.Sup., 282 S.W.2d 518; as well as the other cases on which these decisions are based. We said in the Hannibal case (391 S.W.2d l. c. 286): “Section 20 also fixes, irrevocably, the mode by which charter cities may annex territory, and the legislature has no authority to eliminate the constitutional requirement or to fix any method inconsistent with it.” As hereinafter shown, the Legislature by its 1963 Act (Laws 1963, p. 126; now Secs. 71.860-71.920, RSMo, V.A.M.S.) has fixed a method inconsistent with Section 20, Art. VI of the Constitution.

It is my view that the Legislature has no authority to apply the procedure provided by Secs. 71.860-71.920 to a constitutional charter city. As stated in the Hannibal case, I agree that the Legislature has authority to require a favorable vote in an area to be annexed as a condition to annexation of territory by a constitutional charter city. Although the Legislature may do that it cannot change the method of how the charter of a constitutional charter city may be amended because the constitution provides how it may be done. In matters of more than purely municipal interest, the Legislature can provide restrictions on what may be done solely by charter amendment. See Kansas City v. J. I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195, for discussion of matters of municipal and state interest. As we recognized in McDonnell Aircraft Corporation v. City of Berkeley, Mo.Sup., 367 S.W.2d 498, 502: “Certainly bringing additional territory into cities without the consent of the inhabitants and owners of property therein is an important governmental function in which the whole state has an interest.” Therefore, providing an additional requirement for annexation of additional territory of a favorable vote of the voters. of such territory is certainly within the authority of the Legislature. This is exactly what the Legislature did when it adopted in 1887 what is now Sec. 82.090 providing for annexing other cities, towns or villages by constitutional charter cities. Such provisions do not change the method by which a charter city may amend its charter but instead provide restrictions on what such cities may do by charter amendments.

However, instead of following proper procedure such as that provided in Sec. 82.090, it adopted, in its 1963 Act, by Secs. 71.860, 71.870, 71.880, 71.890 and 71.900 procedure which directly conflicts with the procedure provided by Sec. 20, Art. VI of the Constitution as to how an amendment to the charter of a constitutional charter city shall be made, which is the only authorized method of annexing territory by a constitutional charter city. As we said in City of Hannibal v. Winchester, Mo.Sup., 391 S.W.2d 279, 288: “Section 20 of Art. 6 of the Constitution sets out the exclusive mode of annexation tor constitutional charter cities. Our cases have so stated for many years. Counsel for the city seek here to distinguish the Taylor [State ex inf. Taylor ex rel. Kansas City v. North Kansas City, 360 Mo. 374, 228 S.W.2d 762] and McConnell cases on the ground that the Court was not there discussing the constitutionality of a mode of annexation by ordinance alone, but only the method of amendment specifically provided in the Kansas City Charter. That is true, but this Court, both in those cases and in the prior and subsequent cases already discussed, has clearly indicated the view that any annexation by a constitutional charter city is a charter amendment and that the method provided therefor shall be followed.”

The direct conflict with the procedure required by the constitution clearly appears from a comparison of the method provided by Sec. 82.090 with that provided by Secs. 71.860-71.900. The Sec. 82.090 procedure, applicable only to annexing incorporated territory, is that the mayor of the constitutional charter city first notifies the mayor of the city, town or village proposed to be annexed of its intention to annex and an election then is required to be held in such municipality on the proposition. If four-sevenths of the qualified voters of that city, town or village vote in favor of the extension, the constitutional charter city may then extend its limits by an amendment of its charter adopted by a majority of its voters. Thus the extension of the limits of the constitutional charter city is made by the method authorized by the Constitution. Not so in the procedure established by Secs. 71.870-71.900! That procedure completely ignores the required method of a charter amendment by which a constitutional charter city is authorized to annex territory. Instead it requires simultaneous elections “submitting the proposition of annexation to the two groups of voters,” Sec. 71.870. Then Sec. 71.880 requires a copy of an order, resolution or ordinance ordering an election to be certified to the board of election commissioners and the election commissioners (not the annexing city) shall give the notice of the election, Sec. 71.890. The requirements of Sec. 71.890 for notice of the election are different from those stated in the Constitution, Secs. 19-20, Art. VI, both as to kind of newspapers, number of publications and length of time of the last publication before the election. Then Sec. 71.900 provides for a ballot that does not submit any charter amendment at all; but instead requires a vote in the city on the same proposition as submitted to the voters outside the city. Therefore, the procedure for annexation provided by these statutes cannot be applicable to a constitutional charter city unless we take back everything we have said about the method by which a constitutional charter city can annex additional territory.

Sec. 71.870-71.900 clearly conflict with Secs. 19 and 20 of Art. VI of the Constitution by attempting to establish a method of annexation that is not a charter amendment and directly conflict with the procedure required by the Constitution for the adoption of a charter amendment. Therefore, it must be held that these statutes are inapplicable to constitutional charter cities or we must overrule the Hannibal and McConnell cases and the whole line of cases on which they are based. In McConnell, we held Sec. 71.015 (Sawyers Act) inapplicable to constitutional charter cities because it provided timing of procedural steps which conflicted with the procedure required by the Constitution for the adoption of a charter amendment. The 1963 St. Louis County Act, like the Hannibal case, is a greater violation of the Constitution because it provides for annexation without any charter amendment. This issue was not discussed in the Divisional opinion because it was not adequately briefed or argued in Division. For these reasons, I would hold that the City of Florissant, being a constitutional charter city, was not affected in any way by or required to follow the procedure provided by Secs. 71.870-71.900, and that its annexation of the unincorporated territory involved, by the method provided by Secs. 19 and 20, Art. VI of the Constitution is valid.

Other sections of the 1963 Act such as 71.860 making Sec. 71.015 (Sawyers Act) applicable and Sec. 71.910 prohibiting resubmission of annexation proposition for two years need not be considered, because if they were held unconstitutional as to constitutional charter cities, the rest of the Act might be held constitutional if it provided constitutional procedure. Since it does not, it would serve no useful purpose to discuss these sections now. Likewise, I do not discuss the contention of appellants that the “annexation was illegal, unconstitutional and void because it was unreasonable under the traditional or classic tests of reasonableness of annexations” because this was not considered in the Division No. 1 opinion. Assuming reasonableness I would affirm.

My view of concurring opinion of Henley, J., is that it recognizes that the 1963 St. Louis County Act (Laws 1963, p. 126) nowhere requires or provides for the adoption of a charter amendment to accomplish annexation of territory by a constitutional charter city and so it deems it necessary to provide an amendment to this Act to make it conform to the Constitution. It does this by authorizing a ballot that is completely different from the ballot required by Sec. 71.900, and which would require a vote on a different proposition from that provided for by the Legislature. The whole trouble with the 1963 Act, as affecting constitutional charter cities, is that it entirely disregards the procedure we have held to be the exclusive method of annexation by such cities, namely by charter amendment. Instead this Act authorizes annexation by an entirely different method, that is, a vote in an annexation election, not a charter amendment election, on the propositions “For the annexation” and “Against the annexation.” This method is proper for other cities, towns and villages but it is in conflict with the method required by the Constitution for constitutional charter cities as we held in the Hannibal case and all the others on which it is based. This concurring opinion also overlooks the fact that the voters in the city and the voters in the area to be annexed are required to vote on the same proposition. There is no reference whatever anywhere in the Act to the adoption of a charter amendment, and of course the Legislature could not authorize voters outside the city to vote on an amendment to the city charter. If it is necessary to amend the Act to provide a different kind of election from the one it has authorized, it must be done by the Legislature and cannot be done by this Court.

DISSENTING OPINION

FINCH, Judge.

I respectfully dissent from the majority opinion written herein by Welborn, C.

The language of House Bill 21, adopted by the 1963 General Assembly and now designated as §§ 71.860-71.920 (all statutory references are to RSMo 1959 as amended and V.A.M.S.), is confusing and difficult of interpretation. The case of City of Kirkwood v. Allen, Mo., 399 S.W. 2d 30, is illustrative of ambiguities and vagueness in the Act. The questions presented by this case further demonstrate these difficulties.

I have concluded that the provisions for dual elections provided for in § 71.870 and implemented in subsequent sections are not made applicable to constitutional charter cities. Section 71.870 provides that “The legislative body of any city, town or village located within the boundaries of a first-class chartered county shall not have the power to extend the limits * * * until an election is held * * It then goes on to provide for simultaneous elections in the city and the area to be annexed and to require a favorable vote in both. It is well settled by City of Hannibal v. Winchester, Mo., 391 S.W.2d 279, and cases therein cited that the one and only way in which a constitutional charter city may extend its boundaries is by charter amendment. That case held that the legislative body of Hannibal could not extend the city limits by ordinance, even though the charter of the city purported to convey that power. The authority is vested in the voters by means of charter amendment. There is no other way.

Section 71.870 does not purport to limit the right of the voters of a constitutional charter city to extend the boundaries by charter amendment. Instead, it clearly and specifically says that “the legislative body * * * shall not have the power to extend the limits” unless the specified prerequisites are met. That language, in my judgment, cannot be extended to provide a limitation on what the voters can do by charter amendment under §§ 19 and 20 of Article VI of the Missouri Constitution of 1945.

This interpretation is supported by the language used in § 71.920. It provides what shall happen if there is a unanimous vote favoring annexation in both the municipality and the area to be annexed. In such event, says § 71.920, “the annexing municipality * * * shall extend its limits by ordinance to include such territory * * (Emphasis supplied.) The mandatory specified procedure is .by ordinance. When this is done and certified copies of the ordinance are filed with the county clerk, “the annexation shall be complete and final.” Obviously, this section is applicable to munipalities other than constitutional charter cities because the latter extend their limits by charter amendment, not by ordinance as called for in this section.

It is true that § 71.860, which seeks to extend application of § 71.015 of the Sawyer Act, recites that such requirement applies to “all cities, towns, villages and municipalities of whatsoever kind,” but that same language does not appear in the other sections of the Act which relate to the dual election requirement. These relate only to what “the legislative body of any city, town or village” in a first-class chartered county may do.

I do not imply by this opinion that the legislature could not limit what a constitutional charter city my do with reference to annexing unincorporated territory just as it has done in § 82.090 with reference to annexation of incorporated areas. I simply would hold that the sections here under consideration are not applicable by their terms to constitutional charter cities.

I would affirm the judgment, assuming that a review of the transcript would meet the test of reasonableness. I have not considered this question because it was not considered in the majority opinion.


source: Caselaw Access Project

author: BLAIR, Judge.

license: Public Domain

text:
    Charles BRUNO, Appellant, v. Fred A. MURDOCK et al., Respondents.
    No. 24478.
    Kansas City Court of Appeals. Missouri.
    June 29, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied Aug. 31, 1966.

      Kenneth K. Simon, Kansas City, for appellant.
    John C. Thurlo, R. Robert Cohn, Kansas City, for respondents.
   BLAIR, Judge.

Charles Bruno was convicted in the United States District Court for the Western District of Missouri of willfully and knowingly making and subscribing and then filing with the Director of Internal Revenue a verified income tax return “which he did not believe to be true and correct as to every material matter.” His offense was a felony under federal law. He was a resident of Kansas City, Missouri, and a duly registered voter. Notified of his conviction, the respondents, the Board of Election Commissioners for Kansas City, struck his name from the registration roll of eligible voters. Sec. 117.400 V.A.M.S. The board took this action on the ground that his conviction of this federal felony disqualified him from voting in this state. Its action was based on Secs. 111.060 and 111.040, V.A.M.S. Those sections disqualify all citizens from voting in this state if they have been “convicted of a felony”. Bruno appealed the action of the board to the Circuit Court of Jackson County. It affirmed the board’s action. He appeals.

His contention is that the cancellation by the board of his voter registration “was unlawful, unauthorized and unconstitutional, appellant’s conviction being for an offense that was a misdemeanor under the laws of Missouri.” Although he asserts the action of the board was unconstitutional, no constitutional question was raised or ruled in the trial court and therefore none exists in the appeal to this court. City of Olivette v. Graeler, Mo., 369 S.W.2d 85; Barnes v. Anchor Temple Association, Mo., 369 S.W.2d 192; Meadowbrook Country Club v. Davis, Mo., 384 S.W.2d 611.

Affirming the ruling of the board, the trial court placed its entire reliance on State ex rel. Barrett et al., Board of Election Com’rs v. Satorious, Judge, en Banc, (1943) 351 Mo. 1237, 175 S.W.2d 787, 149 A.L.R. 1067, a certiorari proceeding to review an order of the Circuit Court of the City of St. Louis requiring the Board of Election Commissioners for St. Louis to permit one Owen to be registered as a qualified voter. Owen had appealed to the circuit court from the action of the board in striking his name from the roll of registered voters. The board had taken this action because Owen had been convicted of a violation of the federal income tax laws. His offense was a felony. He contended that he had never been convicted of a felony under the laws of this state and was therefore qualified to vote in this state notwithstanding his conviction of a federal felony. The circuit court so ruled.

In the Supreme Court, the principal opinion was written by Judge Hyde and concurred in by Judges Douglas, Gantt and Tipton. A careful and extensive analysis was made of the statutes of this state disqualifying convicted felons from voting and of decisions from other jurisdictions ruling for and against Owen’s contention. The principal opinion then declared without any qualification or reservation: “We, therefore, rule that any one convicted for felony under the United States laws is excluded from the right of voting in this state.” One decision on which the majority placed reliance was State ex rel. Olson v. Langer, 65 N.D. 68, 256 N.W. 377, construing a voter disqualification section of the North Dakota Constitution using general language similar to that employed by our disqualifying statutes. The proceeding was in quo warranto to oust the respondent from the office of Governor of North Dakota because he had been convicted during his tenure in a United States District Court of a federal felony, conspiracy to defraud the United States by corruptly administering the Emergency Relief Acts of Congress. The offense was only a misdemeanor under the law of that state. 256 N.W. l. c. 388. The theory of the proceeding was that by reason of respondent’s conviction of a federal felony during his tenure he had become disqualified to continue to serve as Governor, owing to the constitutional provision of that state which required a Governor to be a qualified voter at all times and that by his conviction he had lost the right to vote. He was ousted from the office of Governor on that ground.

In Satorious, Judge Ellison wrote a separate opinion concurring only in the result reached by the majority. He was joined in this opinion by Judges Leedy and Clark. He said: “I concur in the result. The cause is submitted by respondent’s return solely on the legal theory that the phrase ‘convicted of [a] felony’ appearing in Sec. 2, Art. VIII of the Constitution, and Sec. 11469 [Sec. 111.060, V.A.M.S.], refers only to convictions in Missouri courts of felonies under the laws of Missouri and committed in Missouri. Respondent’s ruling below was that since voter Owen had not been convicted in a Missouri court, but in the Federal court, of a felony (evading payment of income tax) under the laws of the United States, not the State of Missouri, therefore the Board of Election Commissioners had no power under Sec. 11469, supra, to strike his name from the registry of qualified voters. The principal opinion holds against that restrictive contention, and to that general ruling I agree. But I do not agree to the sweeping conclusion that the constitutional provision and statute, supra, refer to any felony under the laws of any other jurisdiction, regardless of whether the same act would be a felony or any crime at all, if committed in Missouri. As a matter of fact evasion of state income tax in Missouri is only a misdemeanor. Secs. 11371, 11372.”

Speaking of the sweeping conclusion reached by the majority and of State ex rel. Olson v. Langer, supra, he said: “The principal opinion quotes an excerpt from the Langer case, supra, decided in North Dakota, which says it makes no difference in the application of the rule that moral views may differ in the several jurisdictions and that an act may be treated as a serious offense in one and not in another. But this would result in disqualification of a voter for violation of the blue laws of any other states that still have them; and even of the penal laws of foreign countries which are wholly unknown here — if our statute includes those jurisdictions. And it would further result that a voter could be disfranchised who is morally blameless according to our own standards; or, on the other hand, that he could evade payment of his Missouri income tax with impunity, whereas he would be denied the right to vote if he evades payment of his Federal income tax. In other words, to secure equal treatment for all voters our laws would have to parallel the Federal law.” Judge Ellison made all of the arguments that Bruno makes on this appeal and ended his separate opinion by saying: “/ respectfully submit that the proper construction of Section 2, Article 8, of the Constitution and Section 11469 is that the voter to be disqualified must have been convicted of a felony in this state or of a felony in another jurisdiction which would be a felony if it had been committed in Missouri. No such situation exists in the instant case. This conclusion, if adopted, cannot help the voter here because the issue was not raised by the parties either here or below. But the question ought to be decided, or at least not ruled the other way, because of the effect it may have on the voter’s future rights and course.” Emphasis supplied. Notwithstanding these strong arguments by Judges Ellison, Leedy and Clark, the majority of the court allowed its broad and unqualified ruling to stand.

The Supreme Court has shown no inclination to limit the force and effect of Sa-torious. On the contrary, it has followed it in a later case. In 1955 in State v. Hermann, Mo., 283 S.W.2d 617, a member of a jury panel failed to disclose on voir dire that he had been convicted in 1942 in the United States District Court for the Eastern District of Missouri of sending obscene letters through the mail, a federal felony. Our state law declares sending an obscene letter through the mail to be a misdemeanor only and this has been continuously true since 1881 to date. Laws of Missouri, 1881, p.124, Sec. 2; Sec. 563.290 V.A.M.S. This member of the panel was selected as a juror for the trial of a criminal case and the defendant was convicted. Subsequently it was learned that this juror had been convicted of a federal felony. The defendant appealed to the Supreme Court on the ground, among others, that the juror’s conviction of a federal felony disqualified him from serving as a juror under our laws and therefore the jury which tried the case was not composed entirely of eligible members and the trial was illegal. It is worthy of notice that Judge Hyde wrote the opinion of the court. On this contention, the court ruled: “The State further contends that a conviction in a federal court is not a disqualification. Sec. 496.100, applicable to St. Louis County, provides: ‘None of the following persons shall be permitted to serve as jurors: * * (5) Any person who has been convicted of a felony’. In State ex rel. Barrett v. Satorious, 351 Mo. 1237, 175 S.W.2d 787, 149 A.L.R. 1067, we held that such broad language without any stated limitation disqualified from voting one who had been convicted of a felony in a federal court. Certainly the reasons given therein are applicable here.” The conviction was reversed and the cause was remanded for a new trial.

None of the authorities or arguments put forward by Bruno can serve to diminish the force of Satorious. He argues that “The majority opinion in Satorious was more sweeping than was necessary and should be reviewed.” So did Judges Ellison, Leedy and Clark, but without success. Moreover, this is not the court to review that decision. That decision controls this court and only the Supreme Court has authority to alter it or render it less severe. Sec. 2, Art. V, Const, of 1945, V.A. M.S. Bruno was convicted of a federal felony and under the majority decision in Satorious the judgment of the trial court affirming the action of the Board of Election Commissioners in striking his name from the registration roll of eligible voters was the correct one, notwithstanding that his conduct which resulted in his conviction of a federal felony was then and is now only a misdemeanor in this state. Sec. 143.330, subd. 4, V.A.M.S.

The judgment of the trial court is affirmed.

All concur.


author: HOGAN, Judge.

text:
    Linda IMMEKUS, a minor, by her next friend, Laura F. Immekus, Plaintiff-Respondent, v. Betty QUIGG, Defendant-Appellant.
    No. 8508.
    Springfield Court of Appeals. Missouri.
    Aug. 16, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied Sept. 6, 1966.

      A. L. Shortridge, Joplin, for defendant-appellant.
    John Rahoy, Edward V. Sweeney, Monett, for plaintiff-respondent.
   HOGAN, Judge.

This is an action for personal injuries sustained, according to the plaintiff, when she was struck by the defendant’s automobile while crossing the street on foot. Plaintiff has had judgment on a jury verdict for $5,000.00, and the defendant has appealed. Several points have been briefed and argued in this court, but we find it necessary to consider only two of them. One of the defendant’s contentions is that there is no evidentiary basis for either of the two hypotheses of negligence submitted, and we therefore briefly review the evidence. It may be noted that the cause went to the jury on the defendant’s failure to keep a careful lookout and her failure to stop after danger of striking the plaintiff became apparent. The defendant neither pleaded nor attempted to submit the plaintiff’s contributory negligence.

On November 16, 1962, Linda Immekus, then seven years old, was taken home from school by a Mrs. Doris Beckham. The Immekus residence was on the east side of Monroe Street in Joplin, Missouri. Monroe is described as a blacktop street, “a little bit over twenty-six feet” wide, without curbs. Mrs. Beckham stopped “across the street” from the Immekus residence on the west side of Monroe, with all four wheels on the pavement. Linda was in the back seat.

At the same time, the defendant, also taking children home from school, was driving north on Monroe. It was between 3:00 and 4:00 P.M. when this accident occurred, and there was no oncoming traffic for the defendant except the Beckham car. No automobiles were parked on either side of the street. As Mrs. Quigg approached the Beckham car, going north on the east side of the street, she saw Mrs. Beckham and saw that there were children in the car with her. Defendant estimated that her speed was ten to fifteen miles per hour. When defendant was in the “middle of the block,” “several car lengths” from the Beck-ham vehicle, she noticed the door on the right side of Mrs. Beckham’s car opening, and reduced her speed slightly. She then saw Linda at the back of the other car.

Plaintiff’s evidence was that Linda walked around the rear of Mrs. Beckham’s car, looked both ways, and started walking across the street. Both Mrs. Beckham and her son, Mike, age ten, were positive in their assertion that Linda did not run, but that she walked. The plaintiff’s own testimony is somewhat indefinite as to her exact position in the street when she was struck, but from Mrs. Immekus’ testimony that Linda was lying about five feet from the east edge of the pavement after the accident and before she moved, and from Mike Beckham’s testimony that she was thrown forward when she was hit, it may be inferred that Linda was struck about five feet from the east edge of the pavement. Mike Beckham, who was plaintiff’s only independent eyewitness to the accident, testified that the defendant’s vehicle struck the plaintiff but did not run over her. Plaintiff had other evidence indicating that, at the time of the accident and again a day or two afterward, the defendant had said she hit the plaintiff, and Mrs. Beckham stated that the defendant had said, immediately following the accident, that she did not see the plaintiff. It is conceded that the only visible marks of plaintiff’s injury were a skinned hand and a bruise, “about three inches across,” on her right hip.

Defendant, on the other hand, denied that her vehicle ever came in contact with the plaintiff. Rather, Mrs. Quigg testified, Linda “looked right at me,” then “darted right out in front of me.” As the plaintiff came to a point two or three feet ahead of the Quigg vehicle, and “a foot to the [west] side,” defendant testified, plaintiff “was standing there holding a book and she looked at me and she had her mouth open and she was standing on one foot and she had lost her shoe and she was turned and she was off balance and she fell.” Defendant’s testimony was that she was “afraid the child might be hurt”; consequently, she “got out to see what had happened,” but actually had stopped her vehicle and was outside in the street when plaintiff fell.

The defendant’s argument that the plaintiff’s instructions are not supported by the evidence is lengthy and diffuse, and we need not consider all its aspects in detail. It has several weaknesses, principally that it assumes inferences less favorable than those which the evidence in fact supports. The plaintiff is entitled to a consideration of the evidence and the reasonable inferences therefrom in a light most favorable to her submitted theory of the action, Rudin v. Moss, Mo., 349 S.W.2d 893, 894 [1], and since the plaintiff’s case was based in considerable part upon varying estimates of speed and distance, she is entitled to have the sufficiency of her case judged according to the “happiest (from his standpoint) and most favorable combination of facts which can be picked or inferred from the whole evidence * * Montgomery v. Petrus, Mo.App., 307 S.W.2d 24, 27 [4].

To determine the inferences permissible from a given set of facts, we may, within limits, take judicial notice of reaction time, braking and stopping distances, and the average walking speed of pedestrians. Losh v. Benton, Mo., 382 S.W.2d 617, 619 [1-3]; DeLay v. Ward, 364 Mo. 431, 442-443, 262 S.W.2d 628, 635-636 [9] [10] [11]; Anno., 84 A.L.R.2d 979, 980-981, Section 2 (1962). We need not collect all the speeds and distances to demonstrate exactly all the possibilities. It is sufficient to apply our computations to the period after Linda started across the street to show that she made a case upon her submitted theory. Bearing in mind that the Beckham vehicle and the defendant’s car were the only two on the street, and that the defendant’s view ahead was unobstructed, we take note that Monroe is, by the record, “a little bit over twenty-six feet” wide. There was evidence that Linda did not run, but walked, from a point behind the Beckham vehicle to the place where she was struck, and there was evidence that she “went straight across the street.” The Beckham car was parked on the west side of the street, and we may assume, as defendant assumes, that it occupied the west six feet of the pavement. One witness testified that the impact “knocked [plaintiff] the opposite way of the car,” and there was evidence tending to prove that after Linda was hit, and before she rose, she was lying five feet from the east edge of the pavement. It may be inferred, then, that Linda was in view during the time she walked fifteen feet. We may notice judicially that she would walk at a speed between 2.9 feet and 4.4 feet per second. DeLay v. Ward, supra, 364 Mo. at 442, 262 S.W.2d at 635 [9]. Linda would then have been in view between 3.4 and 5 seconds, and in that time the defendant, going ten miles per hour, or approximately 14.6 feet per second, would have gone between 50 and 73 feet. Allowing the defendant a reaction time of three-quarters of a second, she would have had between 39 and 62 feet in which to take effective action. If we do not know judicially the precise distance in which an automobile traveling at ten miles per hour can be stopped, we do take judicial notice that it can be stopped in less than 39 feet. DeLay v. Ward, supra, 364 Mo. at 442-443, 262 S.W.2d at 635-636 [10]; Edwards v. Dixon, Mo.App., 298 S.W.2d 466, 469 [1-4]. A jury could reasonably infer, then, that the defendant had time to stop.

Turning to the plaintiff’s lookout submission, we think the defendant understates her duty to the plaintiff, in the circumstances of this case. Largely on the basis of her own testimony, or rather her negative answer to counsel’s question whether she ever diverted her gaze away “from right straight ahead of you up to the time you stopped your car,” the defendant maintains that by looking continuously at the Beckham car she discharged her duty to keep a lookout, and therefore there is no basis for the plaintiff’s hypothesis that she failed to do so. The duty to maintain a vigilant lookout involves not only the duty to look, but the duty to see and take cognizance of that which a very careful and prudent person would see in similar circumstances, Hildreth v. Key, Mo.App., 341 S. W.2d 601, 606 [3], and the record facts do not bear out the defendant’s contention that her view was obstructed, as was the case of O’Neill v. Claypool, Mo., 341 S.W.2d 129. Mrs. Quigg stated that as she drove north on Monroe she saw Linda “at the back of the Beckham car”; that she had then slowed down and was going not more than ten miles per hour, and that Linda was two or three feet behind the Beckham car. Of course, in connection with this evidence, defendant fixed the distance between her and plaintiff as being very short, but a jury was at liberty to accept her statement that she saw plaintiff and at the same time reject her estimate of the distance which separated them, for it was free to accept her testimony in part and reject it in part, when considered in relation to the other testimony and the other facts and circumstances of the case. Huffman v. Mercer, Mo., 295 S.W.2d 27, 32 [3]; Birmingham v. Kansas City Pub. Serv. Co., 361 Mo. 458, 466, 235 S.W.2d 322, 327-328 [7]; Hutchison v. Thompson, Mo., 175 S.W.2d 903, 911 [10]. In this instance, a jury might reasonably have concluded that Linda came in view while the defendant was more than 73 feet away. Contrary to the defendant’s position, her duty to act was not deferred until the danger of collision became apparent; rather, she was required to anticipate that Linda might imprudently cross the street even though she was approaching, Hildreth v. Key, supra, 341 S.W.2d at 607; and while the lookout submission presupposes time and distance sufficient to avoid the casualty, Zalle v. Underwood, Mo., 372 S.W.2d 98, 102 [2], it seems to us that since the defendant at least inferably had the ability to stop, she also had the ability to slacken her speed sufficiently to allow Linda to escape, or to sound a warning of her approach. We must hold that the plaintiff’s instructions were supported by the evidence.

The other point for consideration, which we think is dispositive of the appeal, is whether defendant’s Instruction 11 should have been given. After the accident, the plaintiff admittedly developed rheumatic fever, and she asserted and sought to prove that the blow she received in the accident either caused her to develop that illness or activated a previously dormant condition. The defendant maintained that there was no causal connection between the accident and plaintiff’s rheumatic fever, and offered Instruction 11, which in effect withdrew the plaintiff’s subsequent illness from the jury’s consideration as an element of damages. The parties do not discuss or question the basic legal principles involved, and we need not restate them at length. A plaintiff may recover for the aggravation of an existing disease, if the aggravation is caused by the negligence of a defendant, and he may recover such damages as proximately result from the activation of a dormant or latent disease, Widener v. St. Louis Pub. Serv. Co., 360 Mo. 761, 768, 230 S.W.2d 698, 701 [4, 5]; Neff v. City of Cameron, 213 Mo. 350, 365, 111 S.W. 1139, 1143, 18 L.R.A.,N.S., 320; Herndon v. City of Springfield, 137 Mo.App. 513, 520, 119 S.W. 467, 469 [2], but, in any case, the plaintiff has the burden of showing by substantial evidence that there is a causal connection between the defendant’s negligence and the injuries for which recovery is sought. Berry v. Kansas City Pub. Serv. Co., 341 Mo. 658, 676-677, 108 S.W.2d 98, 107; Moore v. Glasgow, Mo.App., 366 S.W.2d 475, 483 [9]; Gulley v. Spinnichia, Mo.App., 341 S.W.2d 301, 304 [1]. The question presented is whether the plaintiff’s evidence establishes that causal connection.

As indicated, this casualty occurred on November 16, 1962, during the afternoon. Plaintiff’s only visible external marks of injury were a bruise “about the size of a teacup” on her right hip, and a “scraped” hand. Very shortly after the accident, Linda was examined by a Dr. Edward Martin, a physician who ordinarily looked after the Immekus family, and she was hospitalized for five days in light (five-pound) traction. X-rays taken on November 21, 1962, by a Dr. R. A. Payne were negative for bone injury. On that day, Linda was discharged from the hospital, and by December 11 Dr. Martin considered that she had made a “complete recovery from [the] accident with no residual evidence of disease or injury.”

A short time after the accident, Linda developed new symptoms. The record does not date the onset of Linda’s subsequent illness exactly, but approximately one month following the accident her feet and legs began to hurt. Linda described her pains as “just pain that will go through them [her legs] and stay for a while and then * * * leave.” The record also indicates that on December 17, 1962, Mrs. Immekus called Dr. ¡Martin about Linda’s joint pains and that he prescribed cortisone, aspirin and demarol, and advised bed rest. However, Mrs. Immekus was dissatisfied with Linda’s progress, and plaintiff was taken to see Dr. W. W. Hurst, a Joplin orthopedist. On December 27, 1962, after making a thorough clinical and X-ray examination, Dr. Hurst “felt that [plaintiff’s] acute rheumatoid arthritis or rheumatic fever must be considered as aggravated by trauma * * * ” and referred Linda to a Dr. Donald R. Patterson, who specializes in obstetrics and pediatrics. On January 15, 1963, Dr. Patterson examined Linda and promptly diagnosed her illness as rheumatic fever. Dr. Patterson prescribed penicillin, a steroid, and “probably” aspirin. Linda improved, and by June 10, 1963, Dr. Patterson believed that the acute phase of her rheumatic fever had passed but that it would be necessary for her to “stay on” antibiotics for an extended period in the future, and then “watch herself all'of her life.” Dr. Hurst believed that Linda’s ailment “ * * * will probably become a chronic, mild disabling thing.”

Upon the trial of this case, Dr. Hurst was the plaintiff’s sole medical witness. Of the physicians who examined and treated the plaintiff, he alone was of the opinion that there was a causal link between the accident and plaintiff’s subsequent illness. The appellant has dwelt at length upon the sufficiency of the plaintiff’s medical testimony, and we are invited to rule, in substance, that Dr. Hurst’s testimony is so inconsistent and self-conflicting that no reasonable conclusion can be drawn from it. We think we cannot quite so rule, but we do agree that the doctor’s testimony demonstrably lacks the assurance necessary to constitute substantial evidence of causation. A few examples will illustrate the basis for this conclusion. As indicated, the doctor first examined the plaintiff in December 1962, and he then referred her to a pediatrician. On June 3,1963, in counsel’s words, he did a “re-evaluation” of the plaintiff. He was asked:

“Q. And what conclusion or opinion did you form based on your second examination, Doctor ?
A. Well, I felt that this child apparently had a beginning rheumatic fever which was aggravated by the stress of the trauma sustained as a result of the accident in question under the stress theory. That she had adequate and competent care, but I felt she needed to be on further treatment for a prolonged period of time and that the costs of continued medication would mount up so that allowance should be made in her settlement to care for this — her care and medication and I felt that she had improved since her last examination.” (Our emphasis.)

Again, being asked if in his opinion there was a causal relationship between the injury and the rheumatic fever which plaintiff contracted, the doctor gave this answer:

“A. Well, I feel that there was a certain degree, I mean it certainly didn’t cause it, because we don’t know the cause of rheumatic fever. [Our emphasis.] We know it’s a collagenous disease, but we must accept the fact that it is a depletion of the cortico-steroid hormone that sets up a depletion of that gland and causes the rheumatoid arthritis because we know that rheumatoid arthritis and psoriatic arthritis and the so-called rheumatic fever are all kissing cousins; they are one and the same group of diseases.”

Counsel pressed the matter, and Dr. Hurst stated that his positive conclusion, upon a third examination in May 1965, was that plaintiff then had no acute rheumatoid or rheumatic fever, but that he found “suggestive Patrick’s signs on the right side and a positive Ober’s sign.” This meant that there was probably some bursitis over the trochanter of the hip on the right side. The doctor was then asked if this condition was directly caused and brought about by the accident, and he answered:

“A. Well, I feel that it was and then, of course, she has been off of these medications. Now, she is taking nothing but aspirin and, of course, when I saw her the second time, she was on penicillin salicylates at that time.”

Of course, we realize that the sufficiency of medical evidence does not turn solely upon the physician’s choice of appropriate words indicating a substantial probability of causation; even though medical testimony indicates nothing more than that a certain result is scientifically possible, it is admissible to aid the jury in determining the reasonable inferences to be drawn from the facts, Kimmie v. Terminal R. R. Ass’n of St. Louis, 334 Mo. 596, 605, 66 S.W.2d 561, 565 [9]; Bertram v. Wunning, Mo.App., 385 S.W.2d 803, 805-806 [1], and though the medical testimony may indicate only the possibility or chance of the causal relation in question, if the plaintiff also produces other evidence tending to show with reasonable certainty that the accident proximately caused the claimed injury or disease, then he has made a sub-missible case on the issue of cause and effect. Ficken v. Hopkins, Mo., 389 S.W.2d 193, 202 [16]; Quadlander v. Kansas City Pub. Serv. Co., 240 Mo.App. 1134, 1144, 224 S.W.2d 396, 403; Anno., 135 A.L.R. 516, 532-539, Section IV (1941). This does not help the plaintiff in this case, because the origin of her disease was the very point in controversy, and the medical testimony was that the etiology or cause of rheumatic fever is obscure. In addition to the statements quoted, Dr. Hurst said, at one point, that “we [physicians] don’t know the cause or what brings it on.” At another point, discussing the cause and nature of the disease, he stated, “* * * there are several opinions — Selye’s theory. No, what you are thinking of is that the streptococcus is an organism which incites rheumatic fever as a result of sore throat and tonsillitis. That theory — there is a theory of Comeral which states body inadequacies — if you want to go into theories of rheumatic fever we could stay here all afternoon. Everybody’s got a pet idea.” Dr. Patterson, the pediatrician to whom Dr. Hurst had referred Linda, testified that “[r]heumatic fever is a group of complaints that apparently stem from an allergic reaction to a streptococcus] * * *. [Y]ou get one Strep infection and you become sensitive to it and then at a later date if you develop another strep infection then your body reacts in this multifacet way of aches and the pains and the fever and someone years ago, smarter than I, called it rehumatic fever.” Dr. Patterson was of the opinion that the accident had nothing to do with the rheumatic fever. Dr. E. H. Hamilton, an internist called by the defendant, stated that in his opinion trauma was not a source of rheumatic fever, but that “there is a difference of opinion.”

What this comes down to is that while the jury could doubtless infer that Linda sustained some injury as a result of the accident, Neal v. Kansas City Pub. Serv. Co., 353 Mo. 779, 788, 184 S.W.2d 441, 445-446 [6], it was left without an evi-dentiary basis from which to infer that the accident was a legal cause of her rheumatic fever. The causal relationship, if any, between the accident and the development of plaintiff’s illness was a matter of scientific cognizance, Restatement (Second) Torts, Section 458, Comment b, p. 499 (1965), and Dr. Hurst’s testimony, in a most sanguine view, amounts only to an assurance of scientific possibility. Inasmuch as the experts themselves could not say with reasonable certainty that the accident caused the disease, a jury composed of laymen would have no way of knowing or inferring that Linda’s rheumatic fever resulted from the accident; it could resolve the problem only by guesswork or speculation. Derschow v. St. Louis Pub. Serv. Co., 339 Mo. 63 at 68, 95 S.W.2d 1173 at 1175-1176 [5-7]; Bertram v. Wunning, supra, 385 S.W.2d at 807 [4]; Moore v. Glasgow, supra, 366 S.W.2d at 483 [9, 10]. We must assume that the jury considered the evidence regarding the rheumatic fever in assessing damages, and that such evidence augmented the damages substantially. Since the jury could properly have found that some injury was sustained, it would have been improper to direct a verdict, Neal v. Kansas City Pub. Serv. Co., supra, 353 Mo. at 788, 184 S.W.2d at 445-446 [6], but defendant’s withdrawal instruction should have been given. Berry v. Kansas City Pub. Serv. Co., supra, 341 Mo. at 676-677, 108 S.W.2d at 107 [12, 13]; Bertram v. Wunning, supra, 385 S.W.2d at 807; Franklin v. Kansas City Pub. Serv. Co., 239 Mo.App. 151, 156-157, 186 S.W.2d 546, 549 [6]. For the reasons indicated, the judgment is reversed, and the cause remanded.

STONE, P. J., concurs.

TITUS, J., not participating, because not a member of the court when this cause was submitted.


author: HILL, Judge.

text:
    SOUTHERN RAILWAY COMPANY, Appellant, v. KELLY CONSTRUCTION COMPANY and Kelly Contracting Company, Appellees. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY COMPANY et al., Appellants, v. KELLY CONSTRUCTION COMPANY and Kelly Contracting Company, Appellees.
    Court of Appeals of Kentucky.
    Feb. 18, 1966.
    Rehearings Denied Oct. 14, 1966.
    Pleas Jones, Williamsburg, Robert Milby, Hamm, Taylor & Milby, London, for appellants.
    Bradley & Bradley, Georgetown, Viley O. Blackburn, Smith & Blackburn, Somerset, for appellees.
   HILL, Judge.

This is an appeal from a judgment entered pursuant to a jury verdict finding both parties guilty of negligence in a collision between a train and asphalt paver at a highway crossing.

At the time of the accident, the engine of the train was owned by Southern Railway Company, hereinafter designated as Southern, and under lease to appellant, Cincinnati, New Orleans and Texas Pacific Railway. Company, hereinafter referred to as CNO& TP. The cars, caboose, and track were owned by CNO&TP. All operators of the train including Southern’s engine were employed by CNO&TP.

The asphalt paver was owned by Kelly Construction Company and under lease to Kelly Contracting Company. We shall refer to Kelly Construction Company herein as Kelly #1 and to Kelly Contracting Company as Kelly #2.

It was on October 16, 1962, at Marsh biding Crossing in McCreary County at a point where Kentucky Highway 700 crosses the track of CNO&TP that a passenger train struck the front end of the paver resulting in $13,800 damage to the paver; $14,953.60 damage to Southern’s engine; and $1,641.93 damage to the track and property of CNO&TP.

Kelly #1 filed two suits on account of the collision. The first was against Southern for damage to the paver, in which Southern counterclaimed for its damage to the engine and filed a third-party complaint against Kelly #2. The second suit was filed by Kelly #1 against CNO&TP and four of the train crew, whose names are unimportant here. CNO&TP counterclaimed against Kelly #1 for its damage to track and other equipment and filed a third-party complaint against Kelly #2, seeking to recover its damages.

At the conclusion of a jury trial, a verdict was rendered finding all parties guilty of negligence and allowing no recovery for anyone. Southern and CNO&TP appeal, and Kelly #1 and Kelly #2 cross-appeal.

The joint brief filed on behalf of Southern and CNO&TP propounds these two questions quoted verbatim:

(1) “May the bailor of personal property recover damages for injury to personalty in the hands of the bailee from a third party even though the bailee might have been negligent, and did the Court err in refusing to sustain the Motion of the Southern for a directed verdict both as to the claim of the Kelly Construction Company, Inc., and on its Third Party Complaint against the Kelly Contracting Company, Inc.?”
(2) “Did the Court err in refusing to sustain the Motion of the Cincinnati, New Orleans and Texas Pacific Railway Company, H. E. Chapman and G. T. Jones for a directed verdict as to the claim of the Kelly Construction Company and of the Cincinnati, New Orleans and Texas Pacific Railway Company for a directed verdict on its third party claim against the Kelly Contracting Company?”

Appellees, Kelly #1 and Kelly #2, contend that “neither Southern nor CNO&TP may recover” ; that Kelly #1 is entitled to recover its damages from both Southern and CNO&TP; and that the trial court erred in refusing to give a last clear chance instruction.

First, we shall examine the facts to determine whether the verdict of the jury is supported by substantial evidence. If it is, we may not disturb it.

Kentucky Highway 700 at the point of collision runs east and west; the railroad track runs north and south at about right angles to the highway. Appellant’s train was proceeding south immediately before the accident. The greater part of the paver was on the west side of the track. There was visibility to the north from the crossing for 2,250 feet to the first curve. It was daylight, although undisputed evidence showed the engine had its headlights on. The train was traveling about fifty-five miles per hour and was about twenty minutes late. At the time of the collision, the operator had gotten the paver in gear and had partially removed it so that it projected over the west rail about two feet when struck. A dump truck was standing on the track when the train first came into view. The train crew saw it move away when the train was within 2,000 feet north of the crossing, but they denied seeing the paver, which was a dull color, until the engine was within 200 feet of the paver. The engineer stated he began blowing the whistle before reaching the whistle post, which was 800 feet north of the crossing, although there was evidence for appellees that the whistle did not sound until it was within 100 feet of the paver. The engineer testified he did not discover the paver was over the west rail until the front end of the train was within 200 feet of the crossing; that he applied the mechanical brakes, which were not sufficient to stop the train in time to avoid the accident; and that he did not apply the emergency brakes because it was likely to endanger human lives; that he was ringing the bell and sounding the horn from the whistle post 800 feet north; that the mechanical brakes were in good condition. There was evidence the train was composed that day of fifteen cars weighing about 1,400 tons and would require about 1,500 feet to stop with the emergency brakes, and 2,250 feet without them.

There is evidence the operator of the paver and other fellow employees first saw the train about one-half mile away; that two to three minutes is required to get the paver in gear; and that it travels about twenty feet per minute.

All this evidence and more was submitted to, and obviously considered by, the jury. On disputed questions of fact, this court will not substitute its judgment for the verdict of the jury nor otherwise disturb the verdict if it is supported by substantial evidence. Wood v. Wood, Ky., 264 S.W.2d 260 (1954). In this case, we conclude the verdict was supported by substantial evidence.

Having so concluded, the claims of CNO &TP against Kelly # 1 and Kelly # 2 is laid to rest. Kelly #2 made no claim, but, to repeat, its employees have been found guilty of negligence. This leaves for our consideration the claims of Kelly #1 and Southern for the damages to their respective properties.

It is the position of Kelly # 1, that inasmuch as its paver was leased to Kelly #2 without reservation of any right of control or supervision, the negligence (determined by the jury) of Kelly #2 is not imputed to it, and therefore it is entitled to recover damages from Southern and CNO&TP, and that Southern cannot avoid liability under Section 203 of the Constitution of Kentucky.

A similar position is taken by Southern with reference to its claim for damages against Kelly #1 and Kelly #2. Southern maintains the negligence of CNO&TP is not imputed to it. Both claims led us to research of the law of bailments and negligence. In regard to bailments, however, we have met wtih a situation relating to the claim of Kelly #1 that renders it unnecessary for us to apply the rules of the bailment and negligence law to its claim.

It is admitted by Owen Kelly that he is president of Kelly #1 and Kelly #2; that his brother is vice-president, and his wife is secretary-treasurer of the two corporations; that the three of them are the sole directors and stockholders; that the same persons keep books for the two firms, each company contributing to their salaries; that the eight or ten regular employees of the two companies are the same. Creed Dillingham, foreman at the time of the accident, testified he was employed by Kelly #1 as did Eugene Horne, superintendent. This is denied, however, by Owen Kelly. Mr. Kelly admitted many of his employees do not know for which company they work. This is well demonstrated by the superintendent and foreman. Not only do the ownership and management of the two corporations indicate identical corporations, but the similarity of names accords with the proposition that the two companies are one and the same. Indeed, the similarity of names has been confusing to this entire court. It is also admitted by Owen Kelly that he furnished the paver as a means of promoting the sale of asphalt material. Without implying any bad faith in organizing and operating two identical corporations with similar names, we conclude for the purposes of this case that Kelly #1 and Kelly #2 are one and the same; and that the negligence of Kelly #2 is imputed to Kelly #1 so as to preclude its recovery of damages from either Southern or CNO&TP.

We come now to the claim of Southern and the rules of bailment.

To review briefly, it is shown that Southern leased the engine in question to CNO& TP without exercising any control or supervision over it at the time of the accident. CNO&TP has been found guilty of negligence, although Southern does not claim damages from CNO&TP. So has Kelly #2. Our conclusion that the negligence of Kelly #2 is imputed to Kelly #1 places the two corporations in the same legal position insofar as the claim of Southern is concerned. Our question, therefore, boils down to this: Is the negligence of CNO&TP imputed to Southern so as to defeat the claim of Southern?

By the great weight of authority, “The bailor, as the general owner of the property, may assert his title as against third parties.” 8 C.J.S. Bailments § 39 p. 469.

We read in 65 C.J.S. Negligence § 161 b, p. 804 that:

“As a general rule, in the absence of statute, the negligence of the bailee is not imputed to the bailor where the latter does not have control, or the right and duty to exercise control, of the conduct of the bailee with respect to the acts or omissions which caused the injury to the thing bailed.
“Although in some jurisdictions it has been held that, where the negligence of a bailee concurred with that of a third person in causing injury to the subject of the bailment, such negligence, by reason of the existence of the relation of bailee and bailor, is imputed to the bailor,” (citing two Texas cases) “the weight of authority now supports the view that, in the absence of statutes requiring a different holding, the negligence of the bailee is not imputed to the bailor where the latter does not have control, or the right and duty to exercise control, of the conduct of the bailee with respect to the acts or omissions which caused the injury to the thing bailed.”

It is interesting to note that the “some jurisdictions” referred to in the above quotation from 65 C.J.S. listed only two cases from the state of Texas, while the “weight of authority” is represented by cases from the District of Columbia, Kentucky, Louisiana, Maine, Minnesota, New York, and Tennessee. The states of Arkansas, Ohio, Indiana, and Pennsylvania are listed as having ruled inconsistently on the question.

In this jurisdiction, we have followed the great weight of authority. Cf. White v. Saunders, 289 Ky. 268, 158 S.W.2d 393, 395 (1942), wherein the rule is clearly announced as follows:

“in short, counsel contend that where property in the hands of a gratuitous bailee is injured by a third person contributory negligence of the bailee is imputed to the bailor.
“Apparently this question has not been decided in our jurisdiction and there seems to be considerable division of opinion with reference thereto. Counsel for appellant candidly concede that the weight of authority is against them and this seems to be the case. See 45 C.J. 1027 and 3 R.C.L. 146. In the latter authority it is pointed out that the later cases have manifested a decided trend in favor of the view that contributory negligence of a bailee is not imputable to the bailor so as to debar him from bringing an action for an injury to the subject of the bailment. We prefer to adopt this latter view, basing our conclusion chiefly on the considerations that such a bailor does not have control, or the right or duty to exercise control, of the conduct of the bailee in regard to the acts of the bailee causing the injury to the subject of the bailment and that there is no privity of contract in such cases as in engagements between principal and agent and master and servant.”

The majority rule adopted in this jurisdiction has also been announced in 8 Am. Jur., Bailments, Section 253, p. 1139; 6 A. L.R., p. 316; and 30 A.L.R., p. 1248.

It is insisted by appellees that Section 203 of the Constitution of Kentucky imputes to Southern, as lessor of its engine, the contributory negligence of CNO&TP. We quote from Section 203: “No corporation shall lease or alienate any franchise so as to relieve the franchise or property held thereunder from the liabilities of the lessor or grantor, lessee or grantee, contracted or incurred in the operation, use or enjoyment of such franchise, or any of its privileges.”

In a long line of cases, this court has construed Section 203 in tort actions to hold lessors liable for obligations growing out of the negligence of lessee. Cf. Chesapeake & O. Ry. Cc. of Kentucky v. Vaughan’s Adm’x, 159 Ky. 433, 167 S.W. 141 (1914); Hunsaker’s Adm’x v. Chesapeake & O. Ry. Co., 185 Ky. 686, 215 S.W. 552, 28 A.L.R. 117 (1919); Louisville & N. R. Co. v. Breeden’s Adm’x, 111 Ky. 729, 64 S.W. 667 (1901); and Underwood’s Adm’r v. Illinois Cent. R. Co., 103 S.W. 322, 31 Ky.Law.Rep. 595 (1907). Unquestionably under these authorities, the lessor of a railroad franchise or a part of its property cannot avoid liability for damages caused by the negligence of the lessee of its franchise or property. But our question is not whether the lessor can avoid liability for its lessee’s negligence, but whether the negligence of lessee is chargeable or imputed to lessor so as to prevent lessor from recovering damages done to its property by the joint negligence of its lessee and a third party. A majority of this court is of the opinion such negligence is not imputed to lessor within the proper interpretation of Section 203 of our Constitution. Therefore, we conclude Southern is entitled to recover the damages to its engine. Its recovery, however, must be limited to Kelly #2, in view of the fact that the counterclaim of Southern has been dismissed against Kelly #1 pursuant to a statement of counsel for Southern that, “We can agree that the counterclaim should be dismissed as against the Kelly Construction Company.”

Wherefore, the judgment is reversed on the appeal and affirmed on the cross-appeals with directions to enter judgment in conformity with this opinion.