author: RUDDY, Presiding Judge.

text:
    Lois MEYER, (Plaintiff) Respondent, v. Walter A. BECK, (Defendant) Appellant.
    No. 31229.
    St. Louis Court of Appeals. Missouri.
    June 14, 1963.
    Wm. J. Becker, Clayton, for appellant.
    Thomas C. Hullverson, Corinne Richardson, Hullverson, Richardson & Hullver-son, St. Louis, for respondent.
   RUDDY, Presiding Judge.

This is an action to recover damages for personal injuries sustained by plaintiff as a result of a collision between the automobile she was operating and an automobile owned and operated by the defendant. Plaintiff obtained a verdict of $5000 and defendant has appealed.

In this appeal defendant complains about the giving of Instruction No. 4 and seemingly complains about the giving of Instructions No. 2 and No. 3 with the giving of Instruction No. 4. One other point relied on by defendant is that the court erred in overruling defendant’s motion for a directed verdict at the close of all of the evidence for the reason that plaintiff’s evidence did not develop the essential elements necessary to submit a case on the “last clear chance doctrine.” Plaintiff contends the last point presents nothing for review because plaintiff also submitted a primary negligence case and defendant has not challenged the sufficiency of the evidence to support the charges of primary negligence. However, plaintiff contends a sufficient case was made under the humanitarian doctrine.

This last point relied on by defendant requires a summation of the evidence. We must state the facts most favorable to plaintiff and give to her such favorable inferences as may reasonably be drawn therefrom.

The collision between the two automobiles took place at an intersection of two public alleys in Clayton, Missouri. Plaintiff was west bound in the north half of the alley for east-west traffic. Defendant was north bound in an alley for north and south bound traffic. About ten feet east of the southeast intersecting corner of the alley is a building which obstructs the view of west bound and north bound motorists. Plaintiff's evidence shows that she operated her car on the right hand or north side of the alley and as she approached the intersection of the two alleys she slowed down the speed of her car and thought she was traveling about five miles per hour. A stairway from a rear entrance to the building mentioned -above and running to the ground level protruded west of the building. When plaintiff was a few feet past or west of the stairway she saw defendant’s car about 30 or 35 feet away. At the time she saw defendant’s car it was south of the alley in which she was driving and, of course, to her left. Defendant’s automobile was traveling north at the time and after seeing defendant’s automobile 30 or 35 feet away plaintiff then stepped on the accelerator and increased the speed of her car. She could not say how fast defendant’s car was traveling at the time she first saw it but “he seemed to be moving at a slow rate of speed.” As she reached a point over half way across the north-south alley she said she saw defendant’s car “out of the corner of her eye” approaching at a much faster rate of speed. She could not estimate the speed of defendant’s car but could only say that it was faster than the first time she had seen it. When she saw defendant’s automobile “out of the corner of her eye” she said it was 12 or 15 feet away. At that time she had increased her speed to 10 or 15 miles an hour. Immediately thereafter a collision took place and according to plaintiff the left rear fender of her car was struck by the left front bumper of defendant’s car. She could not estimate the speed of defendant’s car at the time of the collision but she described the collision as a “sudden jolt” and also said, “It happened so fast that after I had seen it the second time it was just a matter of seconds. It was a sudden jolt to the car.” The collision took place on the north side of the east-west alley and on the west side of the north-south alley. After the collision plaintiff’s vehicle moved 5 or 10 feet. She heard no horn sounded and heard no “squealing of brakes.”

The pertinent parts of defendant’s testimony show that he was in the Anderson Radio Company which occupied a building south of the east-west alley and on the east side of the north-south alley. Before the collision took place he backed his automobile out of a yard behind the Anderson Radio premises and then proceeded to go north in the alley. He said he first saw plaintiff’s car when she was going west through the intersection of the two alleys. Defendant said plaintiff “was looking in her purse” when he first saw her and that thereafter he stopped. He said that plaintiff did not look up “until she was reasonably close to the pole.” The pole he had in mincl was a telephone pole at the northwest corner of the intersection of the alleys. Defendant admitted that he did not sound a horn and estimated that he saw plaintiff for a period of four or five seconds before the collison. When he first saw plaintiff’s car she was probably traveling 15 miles per hour and he was then about 28 feet away from the point where the impact took place. He was asked, “And you say at all times she was not conscious of anything during that time, she must have been looking down ?” and he answered, “She was looking down, yes, sir.”

' In another place in his testimony he stated that he was traveling possibly 7 or 8 miles an hour and when asked if he could stop his automobile at 30 miles an hour within 15- feet he answered that he thought he-could stop it in less than that distance. He then testified that he could stop his automobile within 3 or 4 feet when traveling at a speed of 7 or 8 miles an hour. He thdught that the highest rate of speed he attained from the time he started up until the time he came to a complete stop was probably 10 or IS miles per hour.

Among the points relied on by defendant are the following:

“I-B. The lower court erred in giving an instruction on the humanitarian doctrine and specific acts of negligence in submitting the same case. If a case is submitted on the humanitarian doctrine it cannot be submitted on any other theory of negligence.
“II. The trial court erred in giving an instruction on humanitarian doctrine coupled with an instruction on contributory negligence, as both cannot be given in submitting the same case.”

The strange and puzzling thing about Point No. II relied on by defendant is that the contributory negligence instruction he contends should not have been given in a case where there is an instruction on the humanitarian doctrine, was an instruction offered by the defendant and given by the court at defendant’s request. However, it is sufficient to point out that the contributory negligence instruction was given and submitted as a defense to the primary negligence submitted for the jury’s consideration under plaintiff’s Instruction No. 2. There is no need to discuss this point further because an obvious reason exists which compels us to ignore both of these points raised by defendant on appeal. Simply stated, the points were not properly preserved for appellate review. The errors complained of in these points attempted to be raised by defendant in this appeal, were not brought to ’ the attention of the trial Court and.no such specific objections were made in the trial. Court as required under Civil Rules 70.02 and 79.03, V.A.M.R. Briefly stated, these rules require - specific objections to instructions be made before submission to the jury or in the motion for a new trial or partly before submission and partly in the motion for new trial, and unless specific objections are made timely at one place or another, the alleged errors therein are not preserved for appellate review. O’Brien v. City of St. Louis, Mo., 355 S.W.2d 904; Overton v. Tesson, Mo., 355 S.W.2d 909; Nelson v. St. Louis Public Service Company, Mo.App., 360 S.W.2d 356. We should add, in passing,- that the contention made in Point I-B, relied on by defendant herein, wherein he asserts that a case cannot be submitted on both the humanitarian doctrine and on specific acts of negligence, is so fundamentally wrong that it requires no application of Civil Rule 79.04, V.A.M.R., which permits this court to consider plain errors affecting substantial rights even though not properly raised in the trial court or preserved for review.

In point I-A defendant complains that the lower court erred in giving an instruction on the humanitarian doctrine because (1) it was not covered by the pleadings, and (2) it was not proven by the evidence offered by the plaintiff. The only objection made to the lower court concerning this instruction is contained in the motion for new trial wherein the defendant said:

“The' Court erred in giving and reading to the jury Instruction No. 4 in which the last chance or humanitarian doctrine was submitted for the reason that said Instruction is contrary to the law under the facts in this case as submitted in evidence.”

There is serious doubt in this Court’s mind that this, objection to Instruction No. 4 is specific enough to preservp the point for appellate review. However, inasmuch as defendant seems to contend that a humanitarian case was not pleaded or proved we will review this point to the extent permitted under the rules.

'Defendant’s contention that plaintiff’s Instruction No. 4, which was a submission under the humanitarian doctrine, was not covered by the pleadings, must fail. Plaintiff’s Instruction No. 4 was in the usual form of a submission under the humanitarian doctrine and required a finding that defendant could have swerved or turned his automobile to the right or slackened the speed thereof and thus and thereby have avoided the collision. Plaintiff’s petition contained the following allegations:

"(3). That said collision occurred as a result of the negligence of the defendant in driving at an excessive rate of speed; failing to keep a careful and vigilant lookout and although plaintiff was on defendant’s right defendant negligently failed to yield the right of way to her; failing to stop, slacken the speed of his automobile or swerve his automobile; failing to sound a warning; and failing to take measures to avoid accident if he saw or could have seen plaintiff in a position of imminent peril of injury.”

We hasten to say that the part of the above allegations which attempts to plead negligence under the humanitarian doctrine is no model to be followed by lawyers in the fiiture in the preparation of their petitions in negligence actions. However, we do think that it sufficiently pleads negligence unfler the humanitarian doctrine, terse as it may be, and is sufficient after judgment, especially where defendant failed to file a motion in the trial court for a more definite statement. Rodgers v. St. Louis-San Francisco R. Co., Mo.App., 31 S.W.2d 546, 550.

This is not a pleading wherein the plaintiff fails to plead the essentials of the humanitarian doctrine but is one wherein the pleader merely fails to specify the measures that should have been taken to avoid the accident. Defendant cites two cases in support of his contention, State ex rel. Central Coal & Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722, and Bach v. Diekroeger, Mo.App., 184 S.W.2d 755.

In the case of State ex rel. Central Coal & Coke Co. v. Ellison, supra, the court held that the instruction was broader than the pleadings because the pleadings did not charge negligent maintenance of the premises at the point stated in the instruction ánd stated that the instruction failed to limit the consideration of the jury to the place where the petition of plaintiff charged the negligence to be.

In the case of Bach v. Diekroeger, supra, an instruction was submitted permitting the jury to find that defendant’s driver was negligent in failing to observe or heed a signal given by the electrical signal device on plaintiff’s truck. This Court held that it was error to give this instruction because it was not within the scope of the pleadings, that such a charge of negligence had not been pleaded in the petition of plaintiff.

The facts in these two cases relied on by defendant show that the negligent acts submitted to the jury had never been pleaded in any form, whereas, in the instant case negligence under the humanitarian doctrine was pleaded and was sufficient in the absence of a motion to make the petition more definite.

The contention made by defendant under Point I-A that the court erred in giving the instruction under the humanitarian doctrine because, as he described it, “it was not proven by the evidence offered by the plaintiff” is wholly unsupported by any citation of authorities and more importantly defendant has failed to argue this contention and develop it in the argument portion of his brief. Because of his failure to develop this contention in the argument it must be deemed abandoned by him and for this reaT son will receive no consideration from us. Automobile Club of Missouri v. Hoffmeister, Mo.App., 338 S.W.2d 348, 1. c. 357; In re Adoption of P. J. K., Mo.App., 359 S.W.2d 360, 1. c. 362.

Defendant in his last point contends that the court erred in overruling his motion for a directed verdict at the close of all of the evidence “for the reason that plaintiff’s evidence did not develop the essential elements necessary to submit a case on the last clear chance doctrine.” As heretofore pointed out, plaintiff submitted primary negligence in Instruction No. 2 and negligence under the humanitarian doctrine in Instruction No. 4. Answering defendant’s last point, plaintiff asserts that it presents nothing for review because she submitted a primary negligence case and defendant has not challenged the sufficiency of the evidence to support the charges of primary negligence. It will be noted that the point relied on by defendant is directed to the trial court’s error in overruling his motion for a directed verdict at the close of all of the evidence. In the case of Nelson v. Wabash Railroad Company, Mo., 300 S.W.2d 407, 1. c. 409, the Supreme Court held that “if plaintiff made a case under any theory submitted, then defendant’s motion for a directed verdict and its motion after verdict for judgment were both properly denied.” (Citing cases.)

In the case of Weil Clothing Company v. National Garment Company, Mo.App., 148 S.W.2d 586, 1. c. 595, defendant at the close of all of the evidence filed a request for a directed verdict alleging that under the pleadings and the evidence in the case plaintiff was not entitled to recover and the verdict must be for the defendant. Answering this, we said: “It will be observed that the requested motion was general and not leveled at each count of the petition separately, so that we must hold that since it could not have been sustained as to Count One, the Trial Court properly denied the motion.” (Citing cases.)

Assuming, without so holding, that plaintiff did not make a submissible humanitarian doctrine case, nevertheless, we do not feel it our duty to discuss the question of the sufficiency of the evidence to support the submission of the two specifications of primary negligence contained in plaintiff’s Instruction No. 2. Defendant in his point relied on limits his attack upon the sufficiency of the evidence to submit a case under the humanitarian doctrine and at no time does he contend that plaintiff failed to make a case of primary negligence. Defendant evidently was satisfied that plaintiff’s evidence did support a submission of the primary negligence contained in Instruction No. 2. Our examination of the record would indicate that defendant was correct in assuming that a case of primary negligence had been made. Therefore, the trial court did not err in overruling defendant’s motion for a directed verdict at the close of all of the evidence.

The judgment of the Circuit Court is affirmed.

WOLFE and ANDERSON, JJ., concur.


source: Caselaw Access Project

author: WOLFE, Judge.

license: Public Domain

text:
    In the Matter of the ESTATE of Louis FOX, Jr., also known as Louis Fox, Deceased. Dorothy DeMANUELE, (Plaintiff) Appellant, v. MERCANTILE TRUST COMPANY, Executor of the Estate of Louis Fox, Deceased, (Defendant) Respondent.
    No. 31337.
    St. Louis Court of Appeals. Missouri.
    June 14, 1963.

      Donald S. Hilleary, Clayton, for appellant.
    James C. Jennings, St. Louis, for respondent.
   WOLFE, Judge.

This is an action against the Estate of Louis Fox, Jr. for the value of services alleged to have been rendered to the decedent. It was filed in the Probate Court and certified to the Circuit Court for trial. There was a trial by jury and a verdict for the defendant. From the judgment following, the plaintiff prosecutes this appeal.

The plaintiff asserts that an instruction given at the request of the defendant respondent was erroneous. The respondent states that the plaintiff failed to make a case properly submissible to the jury, and that therefore any error in instructing the jury is of no consequence.

The only evidence that we have is that offered by the plaintiff, as the defendant stood upon its motion for a directed verdict at the close of the plaintiff’s case. The facts as disclosed by this evidence are that the plaintiff, Dorothy DeManuele (then named Dorothy Stauffer), had lived with Louis Fox and his sister, Loretta Fox. These two were, respectively, claimant’s maternal uncle and aunt. They were both unmarried. Dorothy came to live with them after her father died in 1940. She was then nineteen years of age. Her brother also moved in with the uncle and aunt at the same time. The residence that they occupied was on Lisette Avenue, in the City of St. Louis.

Most of the evidence offered was the testimony of plaintiff’s brother James. He stated that when they both moved to the home of their aunt and uncle, he was employed, and that he started to pay $10 a week board. Their father “had some insurance, it was paid so much a month.” The insurance was paid to the uncle and aunt for the support of James and Dorothy. Dorothy was attending school. This she continued to do for about five months, and then she was employed as a secretary. After she secured employment, she also started to pay $10 a week board. They both continued with this arrangement until March of 1942, when plaintiff’s brother James went into military service. He did not return to live with his aunt and uncle for any extended period of time until 1945. He had married then and left the service, and he returned with his wife. He and his wife both lived in the Fox home for about six months, and then they moved to a place of their own. In 1948 James and his wife moved away from the city, but returned to live in St. Louis in 1950. During all of this time the plaintiff continued to live with her uncle and aunt. The aunt performed all of the household duties, and the uncle was employed as a plumber. Occasionally Dorothy would help the aunt, performing such chores as setting the table and going shopping with her, but this was not a regular occurrence.

In October of 1955, Dorothy’s aunt went to the hospital, and she died in December of the same year. This left only Louis Fox and Dorothy living in the house, and they both lived there until March or April of 1957. James said that he visited them at least once a week. He said that during these visits, he saw his sister Dorothy doing the washing and ironing, cooking, and most of the shopping. He said that he saw her doing housecleaning. Some of the clothing that she washed and ironed belonged to Louis Fox. When he visited he never saw his uncle doing any housework. He also said that Dorothy continued to pay board. She was employed by the Veterans Administration during this time. A next-door neighbor also testified that Miss Fox, the aunt, had done all of the housework prior to going to the hospital, but that after Miss Fox died she saw Dorothy prepare meals, do general housework, and shopping.

Louis Fox was a man who drank considerably, and according to James he had done so for many years. He was an unstable person and easily angered. He displayed no affection for Dorothy and found fault with her friends. He did not want her to go out. The neighbor testified that she was informed by Dorothy that her uncle did not want her to work or to have any social life. On one occasion the neighbor saw Fox come home intoxicated and heard him later using abusive language toward Dorothy. She said that Fox used profanity like most people talk normally. She said, “ * * * he had the idea Dorothy’s morals weren’t what they should be. * * * he called her a whore.” She said that Fox was frequently intoxicated and that he always smelled of alcohol.

James Stauffer testified that in July or August of 1956, he was down in the basement of the Fox home with his uncle. James related the conversation which he had with his uncle at that time as follows: “ * * * he was drinking beer, and he told me he didn’t know why she wanted to leave him, that she would be taken care of in his will.”

As to any agreement that existed between Dorothy and her uncle, James gave the following testimony:

“Q. Do you know of your own knowledge, Mr. Stauffer, what the financial details were, if any, of any contract or agreement that existed or may have existed between Mr. Fox and Dorothy?
“A. Well, would that tie in with the verbal agreement we had when we first went in there? We had a verbal agreement at the time.
“Q. I have to tie it down for the period for which the claim was filed. The claim was filed for October, ’55, to April of ’57. Do you know of your own knowledge whether or not Dorothy and Louis Fox had an agreement with certain specified sums that she would pay him?
“A. I don’t know of the agreement, no.
“The Court: How about an agreement, whether it was in writing or not?
“The Witness: The best I recall, there was a verbal agreement, Judge.”

James also testified that in March or April of 1957, his sister telephoned him in a state of excitement, and he went to the Fox home. Fox, Dorothy, and two policemen were there. Dorothy said that she could not stay any longer, and that her uncle would not give her her clothes. The policeman told her to get her clothes. Fox asked her to stay, but the policeman told her to get her clothes and get out. This she did, and James took her to his home.

Dorothy was married shortly after this to Mr. DeManuele, with whom she had been going since 1955. Fox continued to live in his home for about a year. He then moved to a hotel and lived there until he died. The date of his death is not disclosed by the record.

As stated, there was a judgment for the defendant administrator, and the plaintiff-appellant here contends that she should have a new trial because an instruction given was erroneous. The plaintiff’s petition stated a claim for services rendered and money spent for and on behalf of the decedent. She did not prove or submit in the instruction offered in her behalf any claim for money spent, but confined the instruction to services rendered. The defendant offered and the court gave an instruction directing a verdict for the defendant if the jury was “not able to make a finding that Mrs. DeManuele rendered services and spent money on behalf of Louis Fox * * (Emphasis ours). The instruction does conflict with the plaintiff’s verdict-directing instruction, in that it requires them to find money spent by the plaintiff, and it is therefore erroneous. Guidicy v. Guidicy, 361 Mo. 1127, 238 S.W.2d 380; St. Louis Housing Authority v. Bainter, Mo.Sup., 297 S.W.2d 529; Lasley v. Ridenour, Mo.App., 265 S.W.2d 744.

The respondent quite properly asserts that if the plaintiff failed to make a case submissible to a jury, we cannot grant a new trial because the error complained of would be immaterial. Kirks v. Waller, Mo.Sup., 341 S.W.2d 860; Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 227 S.W.2d 660.

In considering whether or not a submissible case was made, we apply the established rule that the evidence most favorable to the plaintiff must be accepted as true, and that plaintiff must be given the benefit of all reasonable inferences arising from such evidence Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875, 1. c. 877, and cases cited therein.

The rule relating to claims for services in cases such as this is that where a family relationship exists, a presumption ordinarily arises that there was no intention to pay and no intention to charge for services of the nature of those here considered. The plaintiff contends that no family relationship existed here. We are cited to the following cases, all of which deal with the subject of family relationship. Patrick v. Crank, Mo.App., 110 S.W.2d 381; Farris v. Faris’ Estate, Mo.App., 212 S.W.2d 71; Kopp v. Traders Gate City Nat. Bank, 357 Mo. 659, 210 S.W.2d 49; Wells v. Goff, 361 Mo. 1188, 239 S.W.2d 301; Lillard v. Wilson, 178 Mo. 145, 77 S.W. 74.

In these cases family relationship is discussed from a variety of angles, but none of the facts considered are comparable to those before us.

The facts here simply show that Dorothy lived in the home of her aunt and uncle. Apparently their father had left some insurance for the partial support of both Dorothy and her brother. How much it was, or to whom it was payable, was not developed in the evidence. Dorothy and James both paid $10 a week board. It is certainly customary for employed adults to contribute to their own upkeep in any family. Up to the time of the aunt’s last illness, it was apparently like any other household where all were employed, except the aunt, who did the housework, with occasional help from Dorothy. After the last illness of the aunt, Dorothy continued to work and live in her uncle’s home. He apparently continued to work, also. Dorothy did housework, cooking, and laundry. James, who called about once a week, never saw his uncle doing housework, and neither did the neighbor, who was seldom in the home. As stated in Steva v. Steva, Mo.Sup., 332 S.W.2d 924, 1. c. 926, our Supreme Court stated:

“The term ‘family,’ within the rule under discussion, ‘has been defined as a collective body of persons under one head and one domestic government, who have reciprocal, natural, or moral duties to support and care for each other.’ ”

This was what was present here, despite the fact that the head of the household spoke disparagingly of his niece’s conduct and was himself unruly and often “in his cups”. His misdirected concern about his niece’s activities was not the concern which one with no family interest would manifest. It was his home; Dorothy was living in it. They had some monetary arrangement which no witness knew about. There certainly was a family relationship here, disagreeable as it may have been. Wells v. Goff, 361 Mo. 1188, 239 S.W.2d 301, supra.

The appellant states that the facts overcome the presumption that the services were gratuitous, even though a family relationship did exist. She asserts that the case is similar to McDaniel v. McDaniel, Mo.Sup., 305 S.W.2d 461. In that case the evidence was that two granddaughters decided to leave the grandparents’ home to seek employment. There was a family argument about it, and one of the granddaughters testified: “Grandpa told her (the sister) * * * ‘If she stays they would give her a good deal.’ * * * She gave in and she stayed.” She did burdensome work in a primitive farm home, and nursed both her grandmother and her grandfather in their last illness.

The statement made in this case was not made to the claimant, or in her hearing, as it was in the McDaniel case, supra. Her brother testified that the uncle said, “He didn’t know why she wanted to leave him, that she would be taken care of in his will.” This indicates no agreement, but a lack of one. The few months which the claimant remained in the Fox home after the statement was made certainly would not indicate any agreement was reached. She never gave up her employment, as the uncle desired, and the services she rendered appear to be of slight consequence, as the meals she prepared and the laundry that she did were for her own as well as her uncle’s benefit.

We hold that the plaintiff failed to make a submissible case, as there was a family relationship between her and her uncle which, because of no agreement to the contrary, made such services as she rendered to him a mere gratuity.

The judgment is affirmed.

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


author: ANDERSON, Judge.

text:
    RUECKERT MEAT COMPANY (Plaintiff) Appellant, v. HARTFORD STEAM BOILER, INSPECTION AND INSURANCE COMPANY, (Defendant) Respondent.
    No. 31299.
    St. Louis Court of Appeals. Missouri.
    June 14, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied July 12, 1963.
    John T. Sluggett, III, Clayton, for appellant.
    Burton H. Shostak, and Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   ANDERSON, Judge.

This is a suit on a policy of insurance issued by defendant to plaintiff, insuring plaintiff against loss and damage to its property through accident. The case was tried to the court and resulted in a finding and judgment for defendant. From said judgment plaintiff has appealed.

That part of the policy involved herein covered a refrigerating system at defendant’s place of business in the City of St. Louis. The term “accident” was defined in the policy. The material part of the definition is as follows:

“1. A sudden and accidental tearing asunder of the Object, or any part thereof, caused by pressure of contents therein, * * * but cracking shall not constitute a sudden and accidental tearing asunder

On May 31, 1963, ammonia gas escaped from the refrigeration plant in that part of the system which was located in the fresh meat room on defendant’s premises. The leak was discovered at about S A.M. on May' 31, 1963. The ammonia was escaping from a solenoid valve which had component parts described in the evidence as a “shell”, “electric coil” and a “housing.” The shell, which was metallic, tubular and stem shaped, was surrounded by the coil which fitted over the shell and rested around it. The housing enclosed the coil and shell. The system was kept under pressure of ammonia gas of 17 to 22 pounds per square inch. It was agreed at the trial that the atmospheric pressure at St. Louis is 14.55 pounds per square inch. About three days after the discovery of the leak, Michael G. Ames, a maintenance employee of plaintiff, removed the valve from the system and discovered a hole in the shell from which the ammonia gas escaped. It was stipulated at the trial that there had been a short of electricity in the coil which started boring the hole. The shell was also scarred and blackened around the hole by this burning. The hole went all the way through the shell.

Plaintiff contends that there was an accident within the meaning of that term as defined in the insurance policy. Its theory is that the electric arcing from the coil bore into the metal wall, at which point the wall 'became so thin that it was unable to withstand the pressure from within, and as a consequence, it blew out the remaining wall, thus permitting the ammonia gas to escape and damage plaintiff’s property. Thus it is urged there was “a sudden and accidental tearing asunder” of a part of the refrigeration system “caused by pressure of the contents therein,” which created liability under the policy.

Defendant contends that the loss was not caused by pressure from within, but by the burning and melting of the metal due to the electrical “short” in the coil.

Both parties offered evidence in support of their respective theories. Michael Ames, plaintiff’s maintenance man, testified that he was familiar with the refrigeration equipment, assisted in its installation and had maintained it thereafter. He stated that he had experience with such equipment since he was 14 years old. He was 57 years of age at the time of the trial. He further testified that he disassembled the valve from the system and discovered the hole through which the ammonia had leaked. He was then asked what caused the trouble. He replied that the coil was shorted and had burned and weakened the valve stem “ * * and the pressure, I guess, it just pushed out, is the only thing I know.” “Q. * * * Now, Mr. Ames, you testified that the electrical current started boring this hole, and when the wall weakened the pressure then blew out ? A. That’s the way I can see it. * * * Q. Now, in your opinion, when the wall was weakened did the pressure within blow out the remaining wall? A. Well, that would be my theory of it, and the way I would look at it, the pressure blows out when its weakened.”

John Schenk was then produced by plaintiff and testified that he was a graduate professional engineer, and had been engaged in his profession since 1934; that he was employed by the Alco Valve Company, the manufacturer of the valve in question, and that at plaintiff’s request had visited plaintiff’s premises and familiarized himself with said valve and the refrigerating system in plaintiff’s place of business. He testified that the gauges used in refrigerating plants such as plaintiff’s, measure pressure therein above the outside atmospheric pressure, which is considered zero, and that if the gauge indicates 22 pounds per square inch pressure, actually such pressure would be 22 pounds per square inch above the existing atmospheric pressure. He further testified that the short in the coil would cause such intense heat that it would melt the metal of the valve shell, which process, in this case, was of short duration. He then gave the following testimony:

“Q. Now, assuming, Mr. Schenk, that this arcing process was taking place in a very short period of time as you have described, and assuming further that the pressure within the system, within the valve and within the shell in question, was somewhere between * * * 17 pounds and 22 pounds pressure per square inch, in excess of the atmospheric pressure without, do you have an opinion as to whether or not when the wall was weakened, as you have testified, the pressure would then seek to blow out and neutralize itself with outside atmospheric pressure ?
“A. I think it’s quite natural and it follows that as the melted metal gets to the very thin wall that the resultant pressure would hurst a semi-plastic material, the thin wall left.
“Q. Would the pressure within rush out through the resulting oriface?
“A. Yes, sir.
“Q. And in your opinion is that vyhat happened in this instance?
“A. It appears to be.”

On cross-examination the witness testified that the arcing in this case was of sufficient heat to melt metal, and would melt the metal all the way through the shell, if it continued and was of sufficient intensity, if the fuse didn’t blow. He further testified that whether pressure coming through would leave evidence thereof on the outside would depend upon whether the arc continued; that if it continued, it would melt and blow clean; that if something comes out it would cause the metal when hot to push outwardly along the edges of the hole and show that pressure had gone through the metal; that there would be evidence on the outer side. He stated, “I might say that may happen or not, depending on whether the arc continued, and we are talking here in terms of very small fraction of a second, hundred thousandths of a second. It could be if the arc was stopped at a point you would have that, and if it continued it would melt and blow clean.”

Chris J. Basso testified for the defendant. He was an inspector for Hartford Steam Boiler, Inspection and Insurance Company. His job involved inspection of boilers, refrigeration units and all types of machinery. He visited plaintiff’s plant and saw the refrigeration plant there which had been dismantled. The coil and housing had been removed from around the valve. He inspected the valve and found there had been a “short” in the coil itself which had burned a hole in the shell, which, in his opinion, had gone through the shell. He further stated that if there was pressure from within pushing out, there would have been an outward motion indicated in that area, and that, in his opinion, the hole in the valve was caused by the short circuit which melted the'metal through the shell.

Ulric G. Horton also testified for the defendant. He was a supervisor and inspector for Hartford Steam Boilers, Inspection and Insurance Company, and had certain training with respect to the operation and inspection of refrigeration units, also the principles involved in the,working of refrigeration systems. His first awareness of this controversy was when he visited plaintiff’s attorney and was shown the valve, coil, and housing. He testified that, the coil indicated a “short” of such intensity as to melt the metal shell; that a short from the coil would cause a hole to be burned all the way through the shell which would allow the ammonia to escape through this hole.

In our opinion, the plaintiff failed to show that the leak in the refrigeration system was caused by accident as that term is defined in the policy. Such a finding would rest on pure speculation and conjecture. It cannot be said, as plaintiff contends, that at some time during the boring of the hole by the electric arc there came a time when the wall of the shell at the point of burning became so thin that it “blew out” as the result of inside pressure. This is especially true when you consider the added outside pressure necessarily built up at said point by the intense heat, which according to the evidence, was sufficient to melt the metal of the shell. There was no evidence that would justify an inference that the arcing stopped short of complete penetration of the shell, and that the pressure within thereafter ruptured the wall of the shell, and thereby became a concurrent proximate cause. Just the opposite was shown for it appears there was no evidence around the rim of the hole of the explosion, which would have been present had there been a sudden outward movement caused by pressure from within. In our opinion, the predominant efficient cause of plaintiff’s loss was shown to be the electrical arcing, and was not a sudden accidental tearing asunder of any part of the refrigeration system caused by pressure of the contents therein. The judgment is affirmed.

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


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    Jerome C. DONZE, (Plaintiff) Respondent, v. Ira R. SWOFFORD, (Defendant) Appellant.
    No. 31303.
    St. Louis Court of Appeals. Missouri.
    June 14, 1963.
    Samuel Richeson, and Dearing, Richeson & Weier, Hillsboro, for appellant.
    James H. Connor, Festus, and Thomas B. Maloney, St. Louis, for respondent.
   ANDERSON, Judge.

This is an action by Jerome C. Donze, as plaintiff, against Ira R. Swofford, as defendant, to recover damages for personal injuries alleged to have been sustained on November 15, 1960, when an automobile driven by defendant ran into the rear of an automobile being operated by plaintiff. The trial resulted in a verdict and judgment for plaintiff in the sum of $6,000.00. Defendant has appealed from the judgment.

The accident in question occurred on Highway 61-67 in the City of Barnhart in Jefferson County. Said highway consists of four traffic lanes, two for southbound traffic and two for northbound traffic. Plaintiff was southbound traveling in the left lane next to the center line of the highway. Defendant was also proceeding southwardly in the same traffic lane as plaintiff, and was behind plaintiff. It was raining at the time, and water had accumulated in the low places on the highway. Prior to the collision plaintiff had been traveling about 40 miles per hour, and while thus proceeding, observed a northbound schoolbus, with its lights flashing, stopped on the shoulder of the highway and unloading passengers. Plaintiff first noticed this bus when he was between 250 and 300 feet north of it. He thereafter brought his automobile to a stop with the front end of his car about even with the front end of the bus. He had been stopped about five or six minutes, waiting for the signal on the schoolbus to change, when his car was hit in the rear by defendant’s automobile. Plaintiff had not seen defendant prior to the accident.

Defendant testified that he was southbound in the inner lane of the highway, traveling at a speed of 35 to 40 miles an hour. He stated that his automobile was in good mechanical condition; that the tires were good; and that the brakes, which were installed about 3 or 4 months previously, were also in good condition. He further testified that he was a “pretty good ways behind” plaintiff when he observed plaintiff’s brake light go on, then off, then on again, and then saw plaintiff stop. He also saw the schoolbus on the opposite side of the highway. There were automobiles traveling on his right at the time. Plaintiff testified that when he stopped, there were two other vehicles along side of him on the outside and southbound lane that were also stopped. Defendant said he applied his brakes when he was 65 to 70 feet behind plaintiff. At that time he was traveling about 20 miles an hour. He gave the following testimony:

“Q. And then what happened when you applied your brakes and tried to stop?
“A. Well, I didn’t have no brakes. I don’t know what was wrong.
“Q. Do you know what happened to them?
“A. Well, they either got wet * * ”
By the Court: “Do you know what, if anything, was wrong with your brakes ?
“A. No, only they just wouldn’t work. Now, that’s all I know. * * *
“Q. All right. In other words, your brakes would not take effect when you applied the pedal ?
“A. No.
“Q. Could you tell the jury how fast you were going when the * * * front end of your car came in contact with the back end of Mr. Donze’s car?
“A. Oh, I couldn’t have been going over ten, twelve miles an hour, maybe a little more, maybe a little less.”

Defendant further testified that he made an effort to swerve his automobile to the left and that the right headlight and the right side of his car came into contact with the left rear of plaintiff’s automobile. He stated that the pavement was wet, and that it had been raining hard since he left St. Louis, and that there was water on the road. He had no problem with the brakes prior to the collision. He further testified that plaintiff after the collision told the Highway Patrol that he was not hurt. Defendant’s testimony was in many respects corroborated by that of his wife and brother, who were, at the time, passengers in defendant’s car.

Plaintiff testified that as a result of the collision, he was thrown back and then forward and back again before his automobile settled down, about 60 feet forward from the place of impact. After the collision, the front seat was .broken loose and was against the rear seat. Plaintiff said' he suffered some lacerations on his leg and that his knee hurt him. He went to work that night and worked the midnight shift. When he awoke after going to bed, he found that he could not rise up or get out of bed. He had pain in the front of his neck; pain through the center of his body; and pain in' the back of the neck, hip and leg.

He first consulted his family doctor, Dr. Lutkewitte, who sent him to Perry County Memorial Hospital for x-rays. Dr. Lutke-witte then referred him to Dr. Maurice Roche of St. Louis, who sent him to the Ernst Radiologist Clinic in St. Louis, where x-rays were taken. Dr. Roche then referred him to Dr. Smolik of St. Louis. None of the above named doctors testified at the trial.

Plaintiff testified that as a result of his injuries, he was unable to carry on his part-time work of insurance agent, because he could not use a typewriter. Plaintiff was regularly employed by the U. S. Army Corps of Engineers, and worked as a deckhand on a dredge boat. Plaintiff stated his work was interfered with because he would lose power in his left hand. He testified he had occasional pain in his neck, frequent headaches, pain in his two fingers, and was unable to turn his head as far to the left as he desired. He further testified he had lost approximately 15 days from his employment, which time was mostly consumed in going to his doctors. He had enough sick leave and annual leave to cover this absence, and actually lost no money from employment as a result of the accident. He stated that his doctor bills amounted to $445.00, which included $275.00 to Dr. Schaerer, who examined him and testified at the trial, and $181.00 hospital bill, totaling $626.00. In addition he suffered damage to his automobile in the amount of $280.00; he lost a sack of potatoes worth $6.00; a barrel of a shotgun was bent, which cost $40.00 to repair, and $15.00 which was spent for towing his car.

Dr. Jacques P. Schaerer testified for plaintiff. He first saw plaintiff on May 5, 1961. Plaintiff was sent to Dr. Schaerer by his lawyer, the purpose being to establish a diagnosis. The doctor testified that on his first visit, plaintiff had unlimited motion in his neck and some tenderness to pressure over the front portion of the lower part of the cervical spine. The left biceps reflex was diminished. There was a strip of diminished sensation to pinprick extending from the hand over the ring and index finger into the arm and shoulder. There was diminished sensation to pinprick over the mid portion of the neck beginning in the midline in the back and extending to the left — about one-third of the way around the left side of the neck. The doctor testified that the complaints of the patient, plus the subjective and objective findings, indicated to him that plaintiff had sustained an injury to a disc in his neck. Dr. Schaerer next saw plaintiff on June 2, 1961, where an x-ray test (myelogram) was performed. The doctor testified he was not able to make a diagnosis on the basis of these x-rays. He then performed a “discogram”, which consisted of sticking a needle into the center of the disc and the introduction of a solution that can be seen on an x-ray film, and would reveal any abnormality of the disc. He testified that from this test he diagnosed a ruptured disc at the C-4 and C-5 level.

Dr. Schaerer stated that in his opinion the accident of November 15, 1960 was a producing factor of the injuries to Mr. Donze which he had diagnosed, and that said injuries were permanent.

On cross-examination, Dr. Schaerer admitted that, as far as cervical discograms are concerned, he is the only doctor in the St. Louis area who uses this diagnostic procedure. He stated that when he first saw plaintiff on May 5, 1961, plaintiff had no limitation of motion of his neck; that when he again saw plaintiff on April 10, 1962, and treated him for his second automobile accident, which occurred in August of 1961, plaintiff complained of low back pain, and he found plaintiff, at that time, did have limitation of motion of the neck.

Defendant called Dr. Hugh Harting, who had made an x-ray examination of plaintiff, in co-operation with Dr. Huckstep, who examined plaintiff at defendant’s request. Dr. Harting testified that he found only a very slight scoliosis, which could be attributed to positioning for the x-ray technician and some hypertrophic arthritis between the sixth and seventh vertebrae, a normal condition to be found in any man of plaintiff's age. He saw no evidence of injury to the neck. On cross-examination, he admitted he did not do a myelogram, a process used to determine whether or not there is a rupture of an intervertebral disc; that one could not see a protruding disc by use of the ordinary x-ray; that he did not find anything that would indicate that plaintiff had had a traumatic injury of any kind to his neck.

On re-direct examination, Dr. Harting examined Dr. Schaerer’s x-rays, including the myelogram, and found no evidence of injury; that he saw no abnormality at the level of C-4 and C-5. He also testified that he was familiar with discogram diagnosis, which had been discarded many years ago at Barnes Hospital; that he believed that one or two people, including Dr. Schaerer, still use the method. He examined Dr. Schaerer’s discogram x-rays, and testified he found no abnormality shown. He said that not enough dye had been injected to fill out the nucleus, and the examination was unsatisfactory.

Dr. Robert Huckstep testified on behalf of defendant. He stated that he had examined plaintiff and found a very slight tenderness on the right side of plaintiff’s neck and his left arm. There was a voluntary limitation of motion of the neck to approximately 20 degrees, but motion to the right was good. He could find no atrophy of the neck muscles. There was no muscle spasm to indicate pain, tenderness, or soreness. There was no atrophy of the left hand or arm muscles. The strength of plaintiff’s left hand and fingers seemed to be normal. The tendon reflex in both arms seemed to be normal. There was numbness of the fourth and fifth fingers of the left hand, which numbness extended up to about the wrist area. The doctor further testified that he could not say that plaintiff had or did not have a disc injury, but that it is possible that a disc could have caused the numbness. He further stated that from the x-ray he felt that plaintiff had a small amount of hypertrophic arthritis in the cervical spine, which would cause pain in the neck. He also stated that it was possible that plaintiff could have a ruptured disc.

During plaintiff’s direct examination, plaintiff was permitted to testify, over defendant’s objection, that he had four children, and was allowed to testify as to their ages.

Appellant contends that the court erred in permitting plaintiff to testify, over defendant’s objection, as to the names, number and ages of his children. On this point the transcript shows the following:

“Q. Will you state your name, please ?
“A. Jerome C. Donze.” * * *
“Q. And how old are you?
“A. Thirty nine.” * * *
“Q. And do you have any children ?”
By Mr. Richeson: “I object to that. It’s irrelevant, immaterial and prejudicial.”
By the Court: “No, overruled. Go ahead.
“A. Sir, that last question?”
By Mr. Conner: “Do you have any children ?
“A. Yes.
“Q. How old are they? Their names and ages please.
“A. The oldest Jerome, Jr. is eighteen, David Paul, fifteen, Janice Ann, thirteen, Bruce Herman, nine.” * *
By Mr. Richeson: “In order to preserve my record at this time I would like to ask the Court to discharge the jury and declare a mistrial on account of the injection of the prejudicial issue of the number of children which plaintiff has * * *.”
By the Court: “Overruled.”

For seventy-five years it has been the law in this state that it is improper to inquire of a plaintiff as to the number of children there are in his family. Among the many cases so holding are, Stephens v. Hannibal & St. J. R. Co., 96 Mo. 207, 9 S.W. 589, 9 Am.St.Rep. 336 (decided in 1888); Dayharsh v. Hannibal & St. J. R. Co., 103 Mo. 570, 15 S.W. 554, 23 Am.St. Rep. 900; State ex rel. Dick & Bros. Quincy Brewery Co. v. Ellison, 287 Mo. 139, 229 S.W. 1059 and Heibel v. Robison, Mo.App., 316 S.W.2d 238, decided by this court in 1958. It would seem that the bench and bar, by this time, would have become familiar with this rule but apparently they have not, for there are still many infractions of the rule.

The rule in question was adopted m order to secure a fair trial of the issues presented for adjudication. This cannot ordinarily be accomplished if irrelevant evidence, calculated to appeal to the sympathy of the jury, is admitted. By overruling a proper objection to such evidence, the court is, in effect, telling the jury that it is proper evidence for it to consider in deciding the issues properly before it.

In the case at bar there was a timely and proper objection made to this improper evidence, for it has been held that since such an inquiry is usually incompetent for any purpose, a general objection is sufficient. State ex rel. Dick & Bros. Quincy Brewery Co. v. Ellison, supra.

Nor can we hold, under the facts and circumstances of this case, that the error did not affect the merits of the action. If plaintiff’s evidence concerning his injuries is to be believed, the verdict could not be said to be excessive. However, defendant’s evidence would have warranted a much smaller recovery. In this state of the record, we cannot say that the incompetent evidence did not influence the jury, and that the error was, therefore, harmless.

Appellant’s brief contains five additional assignments of error which are directed at the trial court’s ruling's during the course of the trial and to the size of the verdict. We do not consider it necessary to pass upon said rulings, since they may not arise upon a retrial; nor do we deem it necessary to consider the complaint that the verdict is excessive, since the judgment is being set aside.

The judgment is reversed and the cause is remanded for a new trial.

RUDDY, P. J., and WOLFE, L, concur.


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    Clifford LIMBAUGH, (Plaintiff) Respondent, v. COLUMBIA INSURANCE COMPANY OF NEW YORK, Commercial Union Assurance Company, Limited, Fire Association of Philadelphia, Hanover Fire Insurance Company of New York, and Northern Assurance Company, Limited, (Defendants) Appellants.
    No. 31168.
    St. Louis Court of Appeals. Missouri.
    June 14, 1963.
    Motion for Rehearing or to Transfer to Supreme Court Denied July 12, 1963.

      Smith & Colson, Farmington, Willson, Cunningham, McClellan & Gunn, J. H. Cunningham, Jr., St. Louis, for appellants.
    Charles W. Medley, McClintock & Medley, Flat River, for respondent.
   WOLFE, Judge.

This is an action in which the plaintiff seeks to recover from each of the defendant insurance companies the pro rata share of a fire loss. Each of the companies had issued a fire insurance policy in the amount indicated by the judgment. There was a finding and judgmént for the plaintiff against defendant Hanover Fire Insurance Company of New York for $1,000 and interest, and against each of the other four companies in the sum of $1,500 and interest. All of the defendants appealed.

The five defendant companies insured a frame building, occupied as a “recreation hall and package liquor store”. The building was owned by the plaintiff, and he conducted his business there under the name of “61 Club”. The defendant Hanover Fire Insurance Company of New York insured for $1,000, and the other defendants for $1,500 each. The policies were first issued in 1951, and renewal policies, which are the policies here litigated, were issued May 14, 1956. These policies bore the expiration date of May 14, 1961. On October 10, 1960, the insured building with its contents was destroyed by fire. The loss exceeded the insurance.

The insured property was located in St. Francois County, Missouri, and the plaintiff bought it in 1951. He then purchased fire insurance policies through two local agents and brokers by the names of T. J. Watkins and L. P. Ryal. These two decided that the owner needed $13,000 on the building, $3,000 on the fixtures, and $2,000 on his stock of merchandise. They divided the insurance equally between them. Mr. Watkins wrote $9,000 insurance for the plaintiff in three companies for which he was agent. Mr. Ryal wrote $2,000 insurance in a company for which he was agent, and he secured policies from the Holton Insurance Agency, in the total sum of $7,000, in the companies which are the defendants here.

All of the policies of the defendant companies had the following clause in them:

“Conditions suspending and restricting insurance. Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring * * * (b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days;”

At the time the policies were issued, Limbaugh, the plaintiff, was operating the 61 Club as a “package place and setup place and night club”. He worked there during the day and slept there at night as a matter of convenience, since his closing hour was 1:30 a. m. He did not live in the place and usually went home in the afternoon. He also employed help that was present when he was not there. This was his manner of operating the establishment until November 1, 1958, when his liquor license was revoked. On that date he closed the place, leaving in it all of the fixtures, furniture, and merchandise. He no longer slept there, but he did go to the building almost every day. At times he also went there at night, as he was trying to catch some boys who had been breaking in.

In August of 1960, plaintiff leased the place to a C. R. Copeland. Copeland was to start in business around September 1, but he became ill and was unable to do so. During the week before the fire, which occurred, as stated, on October 10, Copeland and the plaintiff had been doing some painting and cleaning up around the place. They worked three to four hours at a time. Copeland had also gone to the place with the plaintiff on two or four occasions at night to try to catch the boys who had been breaking in.

In obtaining the policies written by the defendant companies, the plaintiff had dealt only with Mr. Ryal. Ryal was an insurance broker and had no agency agreement with the defendant companies, but he ordered the policies from the Holton Insurance Agency in St. Louis. No application was ever taken from the plaintiff for insurance with the defendants, and Ryal was billed for the premiums by the Holton Insurance Agency. When the policies were orginally written, Ryal told the Holton Agency that the building was occupied. The companies themselves also ascertained by inspection that it was occupied.

After the plaintiff closed his place of business, he went to Mr. Ryal and told him that his business was closed and asked if this would affect his insurance. Ryal assured him that it would be all right if the plaintiff went out to the building occasionally. Ryal never took the matter up with the Holton Agency or the defendant companies. The plaintiff testified that he had a conversation with Mr. Watkins, the other insurance agent with whom he dealt, and he was assured by him that the insurance that he, Watkins, had written would remain in force if plaintiff went to the building occasionally. The companies for which Watkins and Ryal were agents paid their portion of the loss amounting to $13,000. The defendants declined payment on the ground that the policies, by their terms, were suspended because the building was unoccupied beyond a period of 60 days.

The respondent contends that the building was occupied and also asserts that the defendants are estopped from raising the defense of non-occupancy. Obviously, however, if the premises were occupied within the terms of the policy, we do not need to consider the question of estoppel. Therefore, the first question we are obliged to determine is whether or not the insured building was “vacant or unoccupied” beyond a period of sixty days at the time the fire which destroyed it occurred. It was not vacant, and there appears to be no dispute about this. All of its fixtures and its stock of merchandise were there. Vacancy usually means empty; a building with nothing in it. Bledsoe v. Farm Bureau Mutual Insurance Co., Mo.App., 341 S.W.2d 626, 1. c. 629; Drummond v. Hartford Fire Insurance Company, Mo.App., 343 S.W.2d 84, 1. c. 86.

“Unoccupied” is not of such clear meaning. The words in the clause that suspend the insurance have been considered in various opinions in this state and others. A general rule that emerges from the cases is stated in 4 Couch on Insurance, page 3403, § 970:

“In construing such a condition, the courts will look to the subject-matter of the contract, and the construction must be with reference thereto, since the occupancy of the various kinds of buildings insured, such, for instance, as dwellings, barns, churches, public buildings, stores, factories, etc., often is essentially different in its scope and character.”

The appellants rely upon the cases of Cook v. Continental Insurance Company, 70 Mo. 610; Craig v. Springfield Fire & Marine Ins. Co., 34 Mo.App. 481; Wheeler v. Phoenix Ins. Co., 53 Mo.App. 446; and Harper v. Stoddard County Mut. Fire Ins. Co., Mo.App., 51 S.W.2d 534. These cases relate to dwelling houses, and in all of them the occupant had either moved from the house, with no intention of further occupying it, or had not yet occupied the house at the time of the fire. Some of these were considered by this Court in the case of Young v. Fidelity & Casualty Co., 202 Mo.App. 319, 215 S.W. 496.

That case arose out of a claim upon a burglary policy. The assured represented that the premises described were occupied by him as his dwelling house. The house there in question was new and not quite completed. Workmen were doing inside painting. The house lacked heat and water. The assured’s wife spent her days there, and the assured slept there at times upon a sofa. Upon this state of facts we held, “ * * * there is ample evidence in the record to justify the court, sitting as a jury, in finding that the respondent did in fact occupy this house as his dwelling * * * »

We held the same under a somewhat similar state of facts in Florea v. Iowa State Ins. Co., 225 Mo.App. 49, 32 S.W.2d 111, 1. c. 114. This was an action on a fire policy on a dwelling, and we stated :

“Thus we find the rule to be that, where there is no condition or stipulation in the policy whereby the insured obligates himself either to limit or to extend his occupancy to any particular purpose, then any occupancy will suffice which satisfies the letter of the condition of the policy, even though it may be by one who is there possessio pedis, such as a caretaker or watchman, not having the house as his domicile.”

See, also, Pabst Brewing Company v. Union Insurance Co., 63 Mo.App. 663; Walton v. Phoenix Insurance Co., 162 Mo.App. 316, 141 S.W. 1138.

The Kansas City Court of Appeals reviewed and discussed many of the cases above cited in Bledsoe v. Farm Bureau Mutual Insurance Co., 341 S.W.2d 626, supra. It stated that the language in some of the cases appears difficult to reconcile with that in others. Each case should be read in the light of its particular facts. With this we are in accord.

The facts before us are that the building was insured as a building “occupied as a recreation hall and package liquor store”. These words may be construed as a warranty of the nature of its occupancy rather than words descriptive of the building. Pabst Brewing Company v. Union Insurance Co., 63 Mo.App. 663, supra. Assuming this, we must determine if there was an occupancy within the warranty. The word “occupancy” itself, as used in insurance policies, refers to the presence of persons within the building. This is particularly true as it relates to dwelling houses. They are expected to be places of human habitation where people live and dine and sleep. This cannot be said of a recreation hall and package liquor store, for the nature of the occupancy does not warrant the conclusion. It might be open 24 hours a day or just a few hours under varying circumstances. It certainly does not embrace within its meaning the use of it as a sleeping place. We therefore cannot hold that the word has the same meaning that it would have if applied to a dwelling. With this in mind, we examine the evidence to determine if there was an occupancy within sixty days before the fire.

The plaintiff’s evidence was that a week or two before the fire, he and Copeland worked in the place. They were painting it and getting it ready for Copeland to take over. There was some cleaning done, and Copeland sanded the bar to prepare it for varnishing. They worked there three or four hours at a time. Both were present several times late at night in an effort to catch boys breaking in. Copeland said, “A particular night or two I stayed the whole night.”

The Supreme Court of Minnesota, in the case of Stensgaard v. National Fire Ins. Co., 36 Minn. 181, 30 N.W. 468, had before it facts almost identical with those before us. There an insured building which had been used as a saloon was being cleaned up and put in readiness for reopening when a fire occurred. The court said:

“But granting, in defendant’s favor, and as is no doubt the fact, that it was adapted to be a saloon, and expected to be used as such, and insured accordingly, plaintiffs’ actual physical possession of it, with actual reference to using it as a saloon, and the getting of it in order and making it ready generally for that use, must, in any reasonable sense of the words, be taken to be not only an occupancy and use of the building, but an occupancy and use of it for the purposes of a saloon.”

We are in accord with the above holding. Considering the scope and character of the occupancy here in question, the insured premises were occupied within the meaning of the policy. Cleaning and repainting the interior of a package liquor store would be an activity consistent with its occupancy as such.

The only point raised by the appellants is that the court erred in not sustaining defendant’s motion for a directed verdict at the close of all of the evidence. We hold that the court properly denied the motion.

The judgment is affirmed.

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


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    In the Matter of the ESTATE of John W. MYERS, Deceased, Appellant. Laclede Gas Company, a corporation, Petitioner-Respondent.
    No. 31346.
    St. Louis Court of Appeals. Missouri.
    June 14, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Denied July 12, 1963.

      W. W. Sleater, III, and Suelthaus & Krueger, St. Louis, for appellant.
    Whittington & Whittington, Allen H. Whittington, St. Louis, for Laclede Gas Co.
   RUDDY, Presiding Judge.

This proceeding originated in the Probate Court of the City of St. Louis. Petitioner, Laclede Gas Company, a corporation, respondent herein, sought to avail itself of the provisions of § 473.357, RSMo 1959, 25 V.A.M.S. This section of the statutes authorizes the Probate Court to determine title to personal property on the verified petition of a person alleging that decedent was not and that petitioner is the owner of the personal property described therein in the possession of the executor or administrator of the estate.

The petitioner alleged that it was the owner of a fund amounting to $1,423.44 in the possession of John W. Myers at the time of his death, which fund is now in the possession of Florence Myers, the Executrix of the Estate of John W. Myers, deceased. The Probate Court denied the petition and an appeal was taken by the petitioner to the Circuit Court of the City of St. Louis. The Circuit Court ruled in favor of the petitioner, from which ruling the Executrix of the decedent’s estate took an appeal to this court.

An agreed stipulation of facts was filed in the Probate Court and the matter was tried in the Circuit Court on the same agreed facts. The relevant parts of the stipulation of facts show, that John W. Myers died on January 3, 1961, and at the time of his death was the sole owner of-Myers Hardware and Paint Company located at 5350 Devonshire Avenue, St. Louis, Missouri.

On December 8, 1958, the decedent and the petitioner, Laclede Gas Company, entered into a written agreement. The pertinent parts of said agreement provided for the appointment of the decedent as one of the contracting agents of petitioner for the collection of- bills for gas service and appliances on condition, among other things, that he keep a strict and correct account of all collections made on forms prepared and furnished - by the petitioner; that he keep separate and distinct from the dece-. dent’s own funds and other property all moneys collected under the agreement and all papers and records pertaining to such collections; that he deliver each day to the petitioner at its office all the moneys collected on the previous day. Under the agreement decedent .was to “hold in trust” for the petitioner all the moneys collected until such moneys were paid to the petitioner. Decedent had to keep the stubs removed from bills, so that a record of collections would be available in the event of loss of moneys by holdup, burglary, etc. For the performance of this collection service the decedent was to receive a stated compensation set out in the agreement.

It was further stipulated that prior to January 3, 1961, and subsequent to December 8, 1958, decedent had accepted payment of gas bills due to the petitioner and had made periodic remittances to the petitioner for these collections.

It was agreed that at the time of the death of John W. Myers he had collected but not remitted to the petitioner, Laclede Gas Company, the sum of $1,423.44, said amount of money having been paid to John W. Myers or to his employees by various customers of the petitioner, and that the said amount so collected had been deposited by the decedent in a bank account in the Southwest Bank of St. Louis carried in the name of John W. Myers, individually, “said account being subject to withdrawal upon checks bearing the signature of ‘Myers Hardware Company by John W. Myers, or Florence E. Myers.’ ”

Subsequent to the death of John W. Myers, Florence E. Myers, widow of John W. Myers, issued and delivered to the petitioner two checks totaling the sum of $1,423.44. Both checks were returned to the petitioner by the Southwest Bank of St. Louis because of the death of John W. Myers. The described bank account was the only bank account owned and carried by the decedent and all of his business accounts and personal bills were paid on checks drawn on this account. On the date of the death of John W. Myers, the balance in the Southwest Bank of St. Louis, to the credit of his estate, was $2,945.29, and the claims filed and allowed against said estate were far in excess of the assets.

As stated above, petitioner’s action is based upon § 473.357 RSMo 1959, 25 V.A.M.S., which provides as follows:

“If a person files in the probate court a verified petition alleging that the decedent was not and that the petitioner is the owner of personal property described therein, and that it is in the possession of the executor or administrator, and alleges how he acquired ownership thereof and that possession of the property- is being wrongfully withheld from him by the executor or administrator, and prays that the court determine the title thereto and order and direct the executor or administrator to deliver the property to the petitioner, a notice and a copy of the petition shall be served on the executor or administrator, who, within ten days thereafter, shall file answer to the petition. If the answer does not admit the allegations of the petition the matter shall be set for hearing by the court and tried upon the issues under the petition and answer, and judg-merit shall be rendered according to the finding and for costs.”

The appellant, Executrix of the Estate of John W. Myers, deceased, contends that there are no moneys existing which the court can order delivered to the petitioner because the decedent had commingled the funds he had collected for the petitioner with other funds in his bank account and that, therefore, the moneys were undis-tinguishable. She further contends that the petitioner is not entitled to follow the funds collected by the decedent and so commingled with his other funds in his bank account on the theory that they are trust funds in the hands of the Executrix because the Probate Court has no jurisdiction to exercise a power strictly equitable in its nature.

In the case of State of Missouri ex rel. Meletio v. Hensley, Mo.App., 358 S.W.2d 85, we said, in commenting on this section of the statute, that the essential allegations which must be made by the petitioner in his verified petition are (1) that the decedent was not the owner of the described and disputed personal property; (2) that the petitioner is the owner; (3) how the petitioner acquired ownership; and (4) that possession thereof is being wrongfully withheld from petitioner by the executor or administrator. Petitioner in his petition does not allege that the decedent was not the owner of the described and disputed personal property. It is true that petitioner alleges that it is owner but the statute requires that both allegations be made. There is a further requirement of this statute and that is that the petitioner must describe the personal property that is in the possession of the Executrix belonging to petitioner. It is obvious from a reading of the stipulation of facts that there is no separate identifiable fund of $1,423.44, representing collections made by the decedent in behalf of the petitioner under the collection agreement. There is no question that no separate identifiable fund existed at the time of the death of John W. Myers. When the funds collected by John W. Myers were deposited in his personal bank account and commingled with the other moneys in his bank account, the moneys collected in behalf of the petitioner lost their identity. Eldridge v. Logan, Mo.App., 217 S.W.2d 588, 1. c. 590.

Before relating petitioner’s response to the contentions of the Executrix, we should point out that petitioner in its petition filed in the Probate Court attached an itemized statement of the amounts and dates of the collections that were made by the. decedent and stated in its statement that “all moneys collected for gas bills were to be held in trust for Laclede Gas Company until such funds were turned over to the company. The Contract Agreement also states that all moneys collected from customers for their gas bills will be kept separate and distinct from the Dealer’s own funds and other property.” Petitioner characterizes this fund as a trust fund and it is the position of the Executrix that the Probate Court was wholly without jurisdiction to determine whether or not a resultant or constructive trust ever existed since the funds claimed were commingled with other funds of the decedent and that the Probate Court had no jurisdiction of a proceeding to trace or recover trust funds. However, petitioner states that the Probate Court does have jurisdiction to determine title to personal property under the section of the statutes cited and that this section authorizes the Probate Court to employ equitable principles in determining title to personal property, citing North v. Hawkinson, Mo., 324 S.W.2d 733; Masterson v. Plummer, Mo.App., 343 S.W.2d 352; and Stark v. Moffit, Mo.App., 352 S.W.2d 165.

The case of North v. Hawkinson, supra, originated in the Circuit Court. It was an action for an accounting based on an alleged oral partnership agreement between plaintiff and defendant’s testator. Plaintiff in his petition alleged that testator “was a trustee of the firm’s accounts and the transactions constituted a mutual running and current account between them” of the partnership business. Plaintiff prayed for an accounting and for a judgment of $80,000 against the Estate of Hawkinson. Plaintiff contended that his action was purely an equitable matter over which the Probate Court had no jurisdiction, and the limitation periods of the Probate Court are not applicable (citing cases). The Supreme Court in commenting on the cases cited stated: “These cases arose under the prior Probate Code, the new Probate Code having been enacted by Laws 1955, p. 385, to be effective January 1, 1956.” (324 S.W.2d 1. c. 736.)

The court in commenting on various sections of the new Probate Code cited § 472.-030 which provides as follows :

“The court has the same legal and equitable powers to effectuate its jurisdiction and to enforce its orders, judgments and decrees in probate matters as the circuit court has in other matters * * *.” (324 S.W.2d 1. c. 738).

The court also summarized the provisions of § 473.357, heretofore cited. The language of the court, which petitioner claims gives support to his contention, is that used by the court when discussing § 472.030, wherein the court said:

“The equity jurisdiction thus conferred is not the general equity jurisdiction of circuit courts, but plenary equity jurisdiction of ‘matters pertaining to probate business.’ The 1945 Constitution requires probate judges, except then incumbents, to be licensed to practice law (Art. V, § 25), and the reason stated in Bauer v. Gray, 18 Mo.App. 164, 169, for withholding equitable powers from probate courts in matters pertaining to probate business has practically ceased to exist.” (324 S.W.2d 1. c. 740)

However, the significant statement contained in North v. Hawkinson, supra, which petitioner has failed to note, is the court’s holding that the plaintiff was seeking a money judgment payable out of the assets of the decedent’s estate in the hands of the Executrix for so much as an accounting may establish to. be due him and important to a consideration of the instant action is the statement, “[t]his is not an action for the recovery of specific personal property.” (324 S.W.2d 1. c. 740.) Other than the general statement made concerning the equity jurisdiction conferred on Probate Courts by § 472.030, there is nothing in this opinion to aid petitioner or this court in its determination of whether the Probate Court had jurisdiction to grant the relief prayed for in the instant case.

In the case of Masterson v. Plummer, supra, it is true that the action was instituted in the Probate Court and that it involved the creation of an executed voluntary trust which the Probate Court and the Circuit Court found was shown by clear, cogent and convincing evidence. However, basically the action was predicated on the provisions of § 473.357 and was one to determine title to certificates of deposit which were inventoried as assets in the estate of the decedent. Contrary to the situation existing in the instant case, these certificates were assets that were identifiable and describable and clearly within the provisions of § 473.357. While it is true that the Probate Court and the Circuit Court found the execution of a trust, there was no attempt in the proceeding to trace and recover trust funds commingled with other funds of the testator as is the situation in the instant case. Perhaps a more pertinent reason why this case fails to aid petitioner is because the jurisdiction of the Probate Court was not raised and was not discussed by the Springfield Court of Appeals.

We fail to see how petitioner can obtain any comfort and help from the case of Stark v. Moffit, supra, decided by this court. Petitioner, in relying on this case, states that it reaffirms the well established proposition that Probate Courts may determine questions of an equitable nature incident to the exercise of its statutory powers and may apply equitable principles in the adjudication of law cases. What we said in that case, after citing the provisions of § 472.030, was that whatever equitable powers a Probate Court may exercise by virtue of that section must be employed in the discharge of its jurisdiction in probate matters. The statement pertinent to the instant case is the one in which we said: “The clause is not a grant to probate courts of jurisdiction in purely equitable matters.” (352 S.W.2d 1. c. 170.) The action in that case was instituted in the Circuit Court and, among other things, attempted to trace proceeds of a trust into an escrow fund. We held that the issues presented by the action and the relief sought therein were purely equitable in nature. Defendants in that case contended that if the Probate Court allowed plaintiff's claim it could decree that it be paid out of the escrow fund. Answering this, we said, “This would be, in effect, the establishment and enforcement of a trust in favor of plaintiff on the escrow fund, a purely equitable relief, and beyond the jurisdiction of the Probate Court.” (Citing cases.) (352 S.W.2d 1. c. 170.)

In Stark v. Moffit, supra, we held that it is well settled that a court of equity has jurisdiction of all questions relating to the establishment, enforcement and protection and preservation of a trust on real or personal property. We further said, “A probate court, on the other hand, is a court of limited, statutory jurisdiction, possessing only those powers expressly conferred by statute or those necessarily incident to the proper exercise of duties directly imposed. In re Frech’s Estate, supra [Mo., 347 S.W.2d 224].” (352 S.W.2d 1. c. 170.)

A statement of more importance made by this court in that case is one wherein we said the Probate Court does not “have jurisdiction of a proceeding to trace and recover trust funds. Howard’s Estate v. Howe, 344 Mo. 1245, 131 S.W.2d 517; Dietrich v. Jones, 227 Mo.App. 365, 53 S.W.2d 1059.” (352 S.W.2d 1. c. 170.)

It can hardly be denied that this proceeding is one to trace and recover trust funds collected by the decedent prior to his death. It must be remembered that the petitioner’s proceeding in the Probate Court is not one to have a claim allowed but is one wherein it seeks a priority or preference and to have the court trace and recover the trust funds commingled with the funds in the decedent’s bank account.

In the case of Stark v. Moffit, supra, we relied on the authority of In re Frech’s Estate, Mo., 347 S.W.2d 224. That case involved a proceeding in the Probate Court to discover assets. The Circuit Court dismissed the proceeding on the ground that the Probate Court lacked jurisdiction over the subject matter, holding that the issues were of an equitable nature and that as a result neither the Probate Court nor the Circuit Court (a court of derivative jurisdiction) had jurisdiction. It was the position of the Administrator that upon the revocation of a trust by the settlor, equity has no further jurisdiction in the matter and that when a trust is terminated by the exercise of a power of revocation, and where under the terms of the trust nothing remains to do but surrender and physically deliver up the trust property, the trustee is under a duty enforceable in an action at law to pay the money or transfer the chattels immediately and unconditionally to the Administrator and that, therefore, it was enforceable in a proceeding in the Probate Court to discover assets. The Supreme Court, having in mind the issues involved, said at (347 S.W.2d 1. c. 227):

“The probate court, however, is a court of limited, statutory jurisdiction, without power to entertain a suit or proceeding based upon strictly equitable principles, State ex rel. North St. Louis Trust Co. v. Wolfe, 343 Mo. 580, 122 S.W.2d 909 * * *. Jurisdiction over trusts has always been regarded as ‘one of equity’s original and inherent powers.’ * * * Equity has jurisdiction of all questions relating to the establishment, enforcement, protection, preservation, and the termination and revocation, of inter vivos trusts. On the other hand, it has been affirmed and reaffirmed that the probate court lacks jurisdiction in matters involving trusts and trustees.” (Citing cases.)

The Court pointed out that the objective of the proceeding was to compel the trustees to deliver and yield up the trust assets upon the basis of a Probate Court finding and adjudication that the trust was previously revoked by the act of the settlor. The Court found that the ultimate issue and all the subordinate incidental issues were strictly equitable in nature and that they were outside the jurisdiction of the Probate Court. Among the various proceedings it declared to be beyond the proper jurisdiction of the Probate Court were “the tracing of trust assets; the winding up of the trust; the trustees’ accounting for receipts and disbursements; the distribution of the assets to the proper person; * (347 S.W.2d 1. c. 228.) And of extreme significance and binding upon this court is the language of the Supreme Court in this case wherein it said: “The probate court has no jurisdiction over the tracing of trust funds.” (347 S.W.2d 1. c. 229.)

As we said before, we feel that this is a proceeding attempting to trace funds into the bank account of the decedent and, therefore, is one beyond the jurisdiction of the Probate Court. Evidently the Probate Court was of such a mind when it denied petitioner’s prayer.

We are aware that in a recent case decided by the Supreme Court, Mathews v. Pratt, 367 S.W.2d 632 the Court said, after citing the provisions of § 472.030, supra:

“We have no occasion here to construe that section, nor shall we do so. We merely call attention to it. It was ignored in Freeh, supra, but it was discussed later in Stark. The proper time and place will come for an adequate construction of the section, but this case presents neither, for this appeal does not arise from probate action or assumed probate jurisdiction.”

The Court in a concluding paragraph further said:

“We hold that this is a suit in equity . to establish and enforce a trust, and •that the Circuit Court had inherent jurisdiction; also, that the petition properly stated a claim. It may be that the Probate Court would have the power to do the same things in a discovery proceeding under the existing Code, contrary to what has so long been declared. We do not so decide here.”

The statements just quoted seem to indicate some doubt about the holding in the Freeh case which holds that the Probate Court has no power to establish, declare, enforce and execute trusts. However, as said in the Mathews case, the Supreme Court did not decide that Probate Courts do have authority to establish and enforce trusts and, therefore, we feel bound to follow the holding in the Freeh’s Estate case and the many prior cases containing a similar holding.

Petitioner next contends that there was no intention to create a formal trust fund and that the bank account was merely a conduit used for the purpose of converting a large number of small payments into one large one and that the money did not lose its identity as such. Petitioner cites four cases allegedly in support of this contention. We have examined all of the cases cited by petitioner and find they do not support the point asserted by it and for this reason we see no need of reviewing all of these cases individually. All of the cases involved actions filed in the Circuit Court and all of them were equitable actions to either establish or enforce a trust. In all of the actions the Court clearly recognized them as purely equitable actions and in none of them do we find any support for the contention that there was no intention to create a formal trust fund in the instant case or any support for the contention that the bank account was merely a conduit for the passage of the money. Petitioner seeks to obtain some solace from the statements in some of the cases in which it is said that when a person holds property in a fiduciary capacity and mixes his own property with it so that it cannot be separated nor the amount of each ascertained, the whole becomes both at law and at equity the property of the trust estate. No one will quarrel with this statement of the law, which has been announced in innumerable other cases, but it in no way can act as support for a contention that the Probate Court can determine and settle this purely equitable problem.

One of the cases cited by petitioner in support of this point is Orr v. St. Louis Union Trust Company, 291 Mo. 383, 236 S.W. 642, which was an action in the Circuit Court to seek a construction of a will and an establishment of a trust as to a portion of decedent’s estate. Among other things, the court pointed out that certain funds in the hands of the decedent at the time of his death retained their trust character and that these funds in the hands of his trustee under his will served to swell his estate by the amount of such trust fund and that said trustee was accountable for such trust funds. The interesting statement in that case, which petitioner failed to point out to us, is the following: “Mrs. Ghio’s claim involved the establishment of a trust and an accounting, matters of an equitable nature, and therefore not cognizable before the probate court in the administration proceedings, * * (236 S.W. 1. c. 648.)

Finally, petitioner contends its action is one for “money had and received” and cites cases in support of its position. In this connection it states that it has the right to disregard the trust relationship between the decedent and petitioner and to look at the claim as one for money had and received. However, the cases cited by petitioner do not aid his point. Two of the cases (Newco Land Co. v. Martin, 358 Mo. 99, 213 S.W. 2d 504, and Clifford Banking Co. v. Donovan Commission Co., 195 Mo. 262, 94 S.W. 527) originated in the Circuit Court and, therefore, are no authority for a question involving jurisdiction of the Probate Court.

In the case of In re Gaebler’s Estate, Mo.App., 248 S.W.2d 12, the claim, which was originally filed in the Probate Court of St. Louis County, was declared to be in the nature of an action for money had and received. This was an action to have allowed as a claim moneys paid to the decedent under a mistake of fact and without consideration. We held that the Probate Court had jurisdiction agreeing that it was an action at law for money had and received.

In the other case cited by petitioner, In re DeGheest’s Estate, 360 Mo. 1002, 232 S.W.2d 378, the claim was filed against the Estate founded upon five checks and letters signed by the deceased. The Supreme Court held that the action was not one on negotiable instruments but was an action for money had and received. There was no discussion in this case about the jurisdiction of the Probate Court.

Summing up what we have said, we find that § 473.357, supra, is not applicable to petitioner’s action for the reason there is no such identifiable sum of money in the estate of decedent as described in petitioner’s petition. If there had been a separate fund established capable of identification, either in a bank account or elsewhere, this section would have application. Under the pleadings and stipulated facts in this case the Probate Court would have had to determine the existence of a trust and then proceed to trace and recover the trust funds. This it cannot do, so the Supreme Court said in the case of In re Frech’s Estate, supra, and Howard’s Estate v. Howe, supra, a principle of law which we followed in Dietrich v. Jones, supra, and in Stark v. Moffit, supra.

We find the Probate Court was right in denying the relief sought by petitioner and that the Circuit Court erred in allowing said relief. The judgment of the Circuit Court is ordered reversed.

WOLFE and LYON ANDERSON, JJ., concur.