author: HOLMAN, Judge.

text:
    LOUMAR DEVELOPMENT CO., Inc., a Corporation, Plaintiff-Respondent, v. Joseph A. REDEL and Emily G. Redel, Defendants-Appellants.
    No. 49691.
    Supreme Court of Missouri, Division No. 1.
    July 8, 1963.

      Leland Jones, Gerhard J. Petzall, Guil-foil, Caruthers, Symington & Montrey, St. Louis, for appellants.
    Hanlon & Busch, John F. Hanlon, John A. McCarty, Clayton, for respondent.
   HOLMAN, Judge.

In this action plaintiff sought an adjudication to the effect that an easement existed over a 50-foot strip of defendants’ land for use as a right of way for a private roadway, and also sought to enjoin defendants from interfering with plaintiff’s use thereof. A trial before the court resulted in a judgment for plaintiff and defendants have duly appealed therefrom. We have appellate jurisdiction for the reason that title to real estate is directly involved. Dalton v. Johnson, Mo.Sup., 320 S.W.2d 569.

The adjoining tracts of plaintiff and defendants are part of a 40-acre tract which was conveyed to George S. Johns and Minnie Johns, husband and wife, in 1912. Minnie died on January 5, 1940. Thereafter, Mr. Johns conveyed the tracts here involved and established (or at least attempted to establish) a right of way for a proposed road to run south from Robyn Road through the approximate center of said land. The lands owned by plaintiff and defendants consist of four tracts which will be referred to herein as Tracts I, II, III, and IV. The alleged easement involved in this case would provide access from Tract IV, which is owned by plaintiff, to Robyn Road. It purportedly was established over the east 25 feet of Tract III and the west 25 feet of Tracts I, II and IV. Tracts I and III front on Robyn Road and Tract II adjoins Tract I on the south, and the north boundary of Tract IV is the south boundary of Tract II.

The conveyances relating to the four tracts heretofore mentioned will be next described. On June 19, 1940, Johns conveyed Tract I to Beatrice M. Worthington. Following the description in the deed is the recital, “The west 25 feet of above property is subject to the right of way of a proposed road, 50 feet wide.” On the 30th day of November, 1950, Tract I was conveyed to defendants. On October 15, 1940, Johns conveyed Tract III to George F. Heath and wife, and that deed contained the following recital: “The east 25 feet of above property is subject to the right of way of a proposed road, 50 feet wide.” This tract was conveyed to defendants on November 30, 1954, and that deed contained the same recital in regard to the proposed road as the one contained in the deed from Johns to Heath. On July 19, 1943, the heirs of George Johns conveyed to Jay H. Gruner and wife the land which subsequently became Tracts II and IV (and other land), and that deed contained the following recital : “Subject to right of way for proposed road 50 feet wide, over part of parcel No. I, according to deed recorded October 28, 1940, in Book 1724, page 525.” (The deed recorded in Book 1724, p. 525, is the one from Johns to Heath and the recital therein is hereinabove quoted.)

The land conveyed to Gruner was subsequently conveyed to one Hynes who, on the 30th day of June, 1953, conveyed the portion thereof which we refer to as Tract II to the defendants. There was no mention in the deed from Hynes to defendants of any easement for a roadway. On the 22nd day of November, 1960, Hynes conveyed certain lands to the plaintiff which included the land which we refer to herein as Tract IV.

One of the defendants, Joseph A. Redel, testified that when he bought Tract I there had been constructed thereon a house, a single-car garage, and a gravel driveway leading from Robyn Road to the garage; that he and his family moved into the house on this property about December 31, 1950; that in 1958, he built a carport on the west side of the garage, and in 1959 paved the driveway with asphalt; that when he bought Tract I, he noticed the proposed road on a survey he received of that tract; that when he bought Tract III, he noticed the wording in the deed regarding a proposed road; that when he purchased Tract II from Hynes, or shortly thereafter, he asked Hynes to join with him and Mrs. Redel in signing a paper which would have abolished the easement for the proposed road in question ; that he had an agreement of that kind prepared and submitted the same to Hynes who, although he never refused to sign it, actually did not do so.

Exhibits in evidence disclose that the major part of defendants’ driveway from Robyn Road to his garage is located on the west 25 feet of Tract I, which is a portion of the proposed right of way in question, and that a small part of the garage upon that tract (perhaps five feet) and the carport are located on the portion of the easement above mentioned.

Mrs. Dorothy Singer testified that she lived on Robyn Road near defendants’ home; that her nephew had owned and occupied Tract I from 1945 to 1950, and that during that period he built the garage which is now located on said tract.

Louis Miller testified that he is president of the plaintiff corporation and that plaintiff purchased Tract IV on November 22, 1960; that two days later he called Mr. Redel and told him that the surveyors would start work in a short time in designating the location of the easement which this suit seeks to establish, and that Mr. Redel said, “This so-called easement which you are referring to — you would never get because I’ll fight you in court for it”; that when the surveyors did attempt to stake out the easement Mr. Redel refused to let them come on his land. This suit was filed shortly thereafter. Mr. Miller testified further that there is another roadway which can be used to reach a part of plaintiff’s land but it cannot be used to reach a portion of Tract IV because of a drainage draw with steep grades which it would have to cross.

Respondent has filed a motion to dismiss the appeal because of the failure of defendants’ brief to comply with S.C.Rule 83.05, V.A.M.R. The most serious violation of the rule is the failure of the brief to “briefly and concisely state what actions or rulings of the Court are claimed to be erroneous and briefly and concisely state why it is contended the Court was wrong in any action or ruling sought to be reviewed.” In an effort to avoid a dismissal, defendants have asked leave to amend their “Points Relied On” in a manner which would cause them to comply with Rule 83.05 (e). We hereby authorize said amendment. The brief is subject to criticism in other respects, but we do not think the violations are serious enough to justify a dismissal of the appeal. The motion is accordingly overruled.

In a case of this nature we must determine the cause de novo, weigh the competent evidence, and reach our own conclusions based upon that evidence. Jackson v. Tibbling, Mo.Sup., 310 S.W.2d 909.

The first contention of defendants is that no easement was in existence at the time this suit was filed because the deeds above described purported to create an easement for a proposed road — a particular road which was never constructed. In their brief defendants say that “Johns had a particular proposed road in mind, which road was prerequisite to the ripening of the easement and which, of course, never came into being. The right of way or easement was not to accommodate just any road; it was to accommodate one specific road. A road that had already been planned by the grant- or. If the planned road was established, the right of way was available for it. The right of way was not otherwise to exist. * * * Thus, because the condition precedent, i. e., the particular proposed roadway which Johns had in mind and for which the easement was created, never came into being, the easement itself never came into being — it was void ab initio.” We do not agree with that contention. Johns’ intent must be ascertained from the various deeds by which he attempted to create the easement. There is nothing in those deeds to indicate that he had a particular road in mind. One definition of “proposed” is “intended.” We think a reasonable construction of these deeds is that Johns intended to provide a right of way for a road which had not yet been constructed but which it was intended or proposed would be constructed at some future time. We accordingly rule that the use of the word “proposed” in the sentence creating the easement did not restrict the easement to a specific road, or limit the time in which the road was required to be constructed.

The next point briefed is that the alleged easement is void and unenforceable because the instruments creating same did not define the character, description and nature of the proposed road. In this instance we think the use of the words “right •of way” and “road”, together with the stated width of the way, was a sufficient description to establish an easement. The •expression “right of way" is defined in Black’s Law Dictionary, 4th Ed., as: “The right of passage or of way is a servitude imposed by law or by convention, and by virtue •of which one has a right to pass on foot, •or horseback, or in a vehicle, to drive beasts of burden or carts, through the estate of another.” The meaning of the word “road” is well known. As used in the instant deed, it obviously means a thoroughfare for the use of vehicular and pedestrian travel. It is not essential to the validity of the easement that the type of road to be constructed be designated.

It is true, as suggested by defendants, that the deeds do not state whether the road shall be a public or private road. In that connection, we note that plaintiff alleges in its petition that the easement is for a private road, and the court, in its judgment, so decreed. Since the servitude imposed by a private road is less burdensome upon defendants’ estate than a public road, and since defendants have made no contention that the easement created a right of way for a public road, we think they are in no position to contend that the easement is invalid because the deeds did not clearly state whether the road should be public or private. However, we think it is apparent from the contents of the various deeds that Johns intended to grant an easement for a private road to serve all the lands adjoining the easement. In support of their contention defendants have cited Kansas City Power & Light Co. v. Riss, Mo.App., 319 S.W.2d 262, and Magnolia Petroleum Co. v. Thompson, 8th Cir., 106 F.2d 217. These cases involve such entirely different factual situations from the case at bar that they are of no assistance in our determination of the contention herein discussed.

The next contention briefed is that there is no easement over Tract II. We will review the relevant facts. The eastern •boundary of Tract III is 887 feet long. It adjoins all of the western boundary of Tracts I and II and at least a part of Tract IV. When Tract III was conveyed by Johns to Heath the deed contained the following reservation: “The east 25 feet of above property is subject to the right of way of a proposed road, 50 feet wide.” The reservation of the easement over the entire 887 feet clearly indicates that Johns intended something more than to provide access from the remainder of his land (Tracts II and IV).to Robyn Road. That could have been accomplished by reserving an easement over the east 25 feet of the part of Tract III which adjoined Tract I (less than 300 feet). Since the above-quoted reservation provided for a road 50 feet wide, it appears clear to us that Johns intended thereby to grant an easement for the proposed road over the west 25 feet of his remaining land which adjoined Tract III. This view is fortified by the recital contained in the subsequent conveyance of said remaining land to Gruner, which deed contained a recital that it was “subject to right of way for proposed road 50 feet wide,” according to the deed by which Johns deeded Tract III to Heath. As we have heretofore said, we are of the opinion that Johns intended to establish an easement for a 50-foot road to serve all the land adjoining it. It may be (a question we do not decide) that he intended that the road should also be for the use of property abutting the south terminus of the easement. We accordingly rule that the easement has been established over the west 25 feet of Tract II.

Defendants say that the deed •whereby Johns conveyed Tract III to Heath could not have created an easement over the west 25 feet of Johns’ remaining land because Johns owned the fee of that land. The same contention is made concerning the deed from Johns to Gruner conveying that land (Tracts II and IV). We agree, as stated in the cases cited by defendants, that ordinarily, for an easement to exist, there must be a dominant and servient estate, and they must not be lodged in the same person. See Marshall v. Callahan, 241 Mo.App. 336, 229 S.W.2d 730. However, that rule is not applicable here because neither Johns nor Gruner owned all the land to be served by this proposed road. In a sense the owners of these four tracts were each dominant and servient tenants. In that situation a valid easement could be and was created over the west 25 feet of the land later called Tracts II and IV.

Defendants also contend that even if the easement had been established over Tract II, such was released or abandoned by the failure of Hynes to reserve the easement in his deed conveying Tract II to them. In connection with our consideration of this contention it should be noted that defendants had both actual and constructive notice of the existence of the easement. It has been said that a “grantee of land takes title subject to duly recorded easements which have been granted by his predecessors in title. Generally, also, a person who purchases land with knowledge or with actual, constructive, or implied notice that it is burdened with an easement in favor of other property ordinarily takes the estate subject to the easement.” 17A Am.Jur., Easements, § 152, p. 757. But defendants say that the fact that Hynes conveyed the land to them by warranty deed, and did not reserve the easement, is an affirmative act indicating an intention to extinguish the easement. Even if we assume the truth of that contention it is not decisive. Hynes did not have the power to extinguish the easement without obtaining the consent of the owners of all the land to be served by the proposed road. Insofar as that proposed road was concerned, Tract II was both a dominant and servient tenement and the easement over said tract would not be extinguished by the mere failure of Hynes to describe it in his deed to defendants. “The courts are not inclined to favor the forfeiture of easements. An easement is not ordinarily extinguished by the conveyance or division of the dominant tenement and a conveyance of the servient tenement to one with actual, constructive, or implied notice that it is burdened with an easement is subject to the servitude.” 17A Am.Jur., Easements, § 159, p. 764. We rule this point against defendants.

In connection with the various contentions of defendants to the effect that no easement was created or continued to exist over the west 25 feet of Tract II, we think it is significant to note that after defendants had acquired that tract defendant Joseph A. Redel had an agreement prepared for the purpose of abolishing the proposed road and that he caused a description of Tract II to be included therein. Such would seem to be an admission against interest when considered in connection with defendants’ present contentions.

The final contention of defendants is that the trial court erred in not sustaining their defense to the effect that the easement had been extinguished by reason of the adverse possession of defendants and their predecessors in title. “An easement may be lost by an occupation on the part of a person other than the owner of the easement adverse to the right claimed, in connection with nonuser by the owner of the easement. * * * [T]he possession must be actual, adverse, hostile, open, notorious, clear, unequivocal, and continuous for the statutory period.” 28 C.J.S. Easements § 63, pp. 729, 730. In order for defendants to comply with the requirement that their possession was either “hostile” or “open and notorious,” it should have been of such character as would have been calculated to give notice to plaintiff (and those under whom it claims) that defendants were exercising exclusive dominion and control over this strip of land, under claim of title, adversely to any claim of plaintiff or anyone else. Franck Bros., Inc. v. Rose, Mo.Sup., 301 S.W.2d 806. The only evidence tending to support this defense is the proof that the driveway from Robyn Road to defendants’ garage is located on the portion of Tract I reserved for the easement, and also that a small part of the garage is so located. The carport was also constructed on the land reserved for the easement, but there is no contention that that fact would support this defense because it was constructed in 1958 and therefore had not existed for the required statutory period of ten years.

We do not think the use of a part of the easement strip for a driveway would be an occupancy of such an adverse character as would extinguish the easement. This for the reason that such use was compatible with the right-of-way easement and would not have interfered with the reasonable enjoyment of the easement. However, a small portion of the garage on defendants’ premises is located on the easement tract, and was so located for more than ten years prior to the date this suit was filed, i. e., February 11, 1961. Under the facts and circumstances of this case, we think the possession of the part of the easement strip upon which the garage was constructed fully complied with the requirements for obtaining title by adverse possession, and we therefore rule that the easement has been extinguished as to that portion of Tract I. See Anno. 25 A.L.R.2d, § 27, p. 1330.

The judgment is reversed and the cause remanded with directions to set aside the judgment heretofore entered, and to enter a new judgment in accordance with the views herein expressed.

All concur.


source: Caselaw Access Project

author: BROADDUS, Presiding Judge.

license: Public Domain

text:
    Ralph BECKETT, Plaintiff-Respondent, v. Harold KIEPE, Defendant-Appellant.
    No. 23767.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.

      Warren D. Welliver, H. F. (Pat) Patterson, Columbia, Clyde E. Rogers, Fayette, for appellant.
    W. F. Daniels, Fayette, for respondent.
   BROADDUS, Presiding Judge.

This is an action for damages for personal injuries. A jury trial resulted in a verdict for plaintiff in the sum of $3,555. Defendant has appealed.

Plaintiff, Ralph Beckett, a 46 year old farmer, entered into a contract whereby the defendant, Harold Kiepe, agreed to furnish all material and to construct a pole barn on the Beckett farm at a total contract price of $3,000. The barn was to be 51' x 60' with a 30 foot clear span.

Construction of this sort of building is accomplished by taking a post hole digging machine and drilling holes at regular spaced intervals around the outside perimeter of the building, spaced about 5 feet apart and about 5 feet in depth. Creosoted poles in •the nature of telephone poles are then set upright in each hole, standing loose in the hole. The roof-rafter frame is assembled and as this is done each pole is straightened into an upright vertical position and then nailed and fastened into place, the completed assembly constituting the frame of the building. The holes in which the upright poles are standing are then filled around the poles and the entire frame of the building, roof and sides are covered with tin or some sort of metal siding. The accident in question happened during construction of the frame of plaintiff’s barn, when defendant Kiepe and his two employees, Scheibly and Andrews, were working on top fastening the roof rafters and frame together.

Defendant Kiepe testified that the normal procedure used for straightening and aligning the poles into vertical position as you fastened and nailed the frame together was to take a 14 to 16 foot 2x4 and to lean it against the creosoted upright pole which you desired to push over into a vertical position. He said that you would then push down on the middle of the 2x4 causing it to bend or arch downward in the middle, and that as you released the downward force, the 2x4 would try to spring back and straighten and the lower end would “bite” into the ground and the upper end would “bite” into the creosoted pole and the force would thereby cause the top of the vertical pole to be pushed into the desired position. This was normal accepted practice, and he had done it on a thousand poles.

During the construction, at about 2:15 on the afternoon of November 25, 1960, plaintiff walked from his house up to where they were building the barn in order to watch the construction. Plaintiff said he was naturally interested and wanted to see how they were getting along. The son of one of the defendant’s employees, the Andrews boy, was sitting around there with the plaintiff. Plaintiff stated that another employee of the defendant, Wayne Scheibly, asked him to help line up one of the poles. Plaintiff told him. “I’ll help if I can”, and Scheibly told him to pick up the 2x4 laying on the ground and lean it up against the pole. The 2x4 was 14 to 16 feet long. Plaintiff said that he asked Kiepe, “Isn’t that kind of dangerous for me to line that up like he wants me to by getting up on it like that?” and Mr. Kiepe had answered him, “We have done it before.” Plaintiff then stated that he “got up on the pole at his request and tried to ride it down, but it didn’t seem to go.” He then stated that, “he (Kiepe) asked me if I would slip under it and see if I could pull, and I just turned it over and tried to pull on the pole and I just supposed that he (Kiepe) knew what he was doing, so at that time, why the thing fell, went sideways, and I had my feet tucked under me and I fell and broke my ankle.”

Both defendant Kiepe and his employee Scheibly said that Scheibly had asked Beckett if he would give a hand in straightening the pole, but Kiepe said that he had only told Beckett to push down on the 2x4 not get under the 2x4. Kiepe said that he did not ask anyone to get under the 2x4 and pull down on it because a 2 x 4 leaning at an angle would not hold a man’s weight, and was too close to the ground. Kiepe said .that leaning the 2x4 against a creosoted pole and getting under it and pulling down was like getting on a limb and sawing it off, but that pushing down on it from the top didn’t involve much more risk than mashing a toe if it slipped off. Kiepe said that a man couldn’t climb on top of the 2x4 because it wouldn’t hold his weight, and because the big bend or arch in it would make it too steep to climb. Kiepe said that he had previously used the procedure of pushing down on a 2 x 4 on a thousand poles.

Plaintiff came back on rebuttal and again stated that defendant Kiepe had asked him to get under the 2x4 and pull down on it, after Scheibly had testified that Kiepe had not told him to get under it. Both Scheibly and Kiepe testified that Beckett did get under the 2x4 and pull down while Kiepe had his back turned toward him and that Kiepe had turned and noticed it and had hollered “Look out Ralph”, but that he didn’t have time to stop him before he fell. Both Scheibly and Kiepe saw Beckett fall.

It is undisputed that plaintiff sustained a broken ankle and no claim is made that the verdict is excessive.

Defendant’s first contention is that the court erred in refusing to direct a verdict in his favor. Defendant asserts that because plaintiff was not an employee, he cannot recover; that plaintiff was a mere volunteer; that no duty was owed by defendant to plaintiff. In short, that there is no possible theory of recovery in the instant case.

The cases hold that there is a common law duty on the defendant to exercise ordinary care with reference to the method adopted and employed for the transaction of defendant’s business. Miller v. F. W. Woolworth Co., 328 S.W.2d 684 (Mo.Sup.)

Defendant claims that because plaintiff was not an employee or servant such principle is not applicable. This contention is answered by Daugherty v. Spuck Iron and Foundry Co., 175 S.W.2d 45, (Mo.App.), wherein plaintiff was employed by a trucking firm and went to defendant’s foundry to pick up some castings; defendant’s foreman directed plaintiff to back his truck into defendant’s building; that the foreman asked plaintiff to help some of defendant’s employees load some castings on the truck and plaintiff and one of defendant’s employees would then move the castings forward in the truck by “walking” the casting (each moving one end at a time); that defendant’s foreman was directing this operation; and as a casting was moved about 10 feet, plaintiff’s helper (defendant’s employee) turned loose of the casting while it was off balance and it fell on plaintiff’s leg. Defendant’s foreman denied that he asked plaintiff to help with the casting. Other employees of defendant testified that they did not hear anyone ask or direct plaintiff to help.

The court held loe. cit. 49, that whether or not defendant’s foreman invited plaintiff to assist in loading the casting or whether plaintiff was a volunteer, were questions of disputed fact (as in the case at bar, where plaintiff says defendant asked and directed him to pull down on the 2x4 and defendant denies the same).

The court then stated loe. cit. 49: “It was not necessary, to defendant’s liability in this case for plaintiff to prove that he was or became a servant of defendant. The evidence was clearly sufficient, however, to show that plaintiff was not a mere volunteer or trespasser, or a licensee, but that he was lawfully on defendant’s premises on business of mutual interest to defendant and himself and occupied the status of an invitee to whom defendant and its servants owed the duty of exercising ordinary care to avoid causing him injury while he remained on the premises on such business." (Emphasis ours.)

It is unquestioned that plaintiff in the instant case, was on his own land, where plaintiff had a right to be. Also, it is not controverted that defendant or his employees requested and asked plaintiff to help out in lining up the pole. Plaintiff was, therefore, not a “volunteer” in any respect.

In the case of Fletcher v. Kemp, 327 S.W. 2d 178 (Mo.Sup.), plaintiff, a welder, was injured by a welding drum. Plaintiff was employed by one Martin, who leased a filling station and equipment from defendant and Martin told plaintiff to help defendant weld an angle iron on a drum. Defendant told plaintiff where to put the angle iron. Defendant contended that plaintiff was a volunteer, that no master and servant relationship existed between plaintiff and defendant; that a relationship of invitor and invitee did not exist. So, that defendant owed plaintiff no duty. The very argument that defendant is making in the case at bar.

The court held in overruling defendant, loe. cit. 182 (citing 65 C.J.S. Negligence § 62), that plaintiff was not a volunteer, plaintiff was where he had a right to be; he was invited by defendant, as well as directed by his employer, to assist defendant in doing the work. It was not done of his own free will and not the act of an intermeddling bystander. Defendant directed him as to the particular welding to be done. “Accordingly, the case falls within the rule that a duty to exercise ordinary care is imposed upon one who invites another to assist in )an operation.” (Emphasis ours.)

In view of the above authorities, we are of the opinion that plaintiff made a submis-sible case.

Defendant next contends that plaintiff was guilty of contributory negligence or he assumed the risk as a matter of law.

The doctrine of assumption of risk may extend to other cases than master and servant and the doctrine is that one who voluntarily exposes himself to a known and appreciated danger due to the negligence of another may not recover for an injury resulting from such exposure. However, to invoke the doctrine it is necessary that the exposure to the risk shall have been voluntary. Fletcher v. Kemp, supra, loe. cit. 183. It has no application where the injured person surrenders his better judgment as a result of an assurance of safety (as defendant saying, “We have done it before.”)

As stated in 65 C.J.S. Negligence, § 174, p. 851: “Thus, if plaintiff surrendered his better judgment on an assurance of safety or a promise of protection he did not assume the risk unless the danger was so obvious and so extreme that there could be no reasonable reliance on the assurance.”

Such comment is approved in Fletcher v. Kemp, supra, loc. cit. 183, where the court said: “In the instant case * * * reasonable minds might differ as to the volun-tariness of plaintiff’s exposure to risk. * * * Since all reasonable minds would not come to a single conclusion on the voluntary character of plaintiff’s exposure, it was a question for the jury and not the court.”

So, in the case at bar, plaintiff did not volunteer. Defendant requested him to help, told plaintiff what and how to do the task and reassured plaintiff when questioned as to the danger in so doing. Under these circumstances, the question was for the jury.

In all of the cases cited by defendant in support of his argument that plaintiff was contributorily negligent as a matter of law there was no “request or invitation” by the defendant to do the act nor was there any “reassurance by the defendant.”

The courts have repeatedly held that under factual situations, somewhat similar in that the hazard and defect is more or less obvious to the plaintiff, the plaintiff is not contributorily negligent as a matter of law, but that it was a jury question. As said in the case of Hahn v. Flat River Ice & Cold Storage Co., 285 S.W.2d 539 (Mo.Sup.): “Where one relies and acts upon the directions and assurances given him by another as to the proper manner of performing a task or operation, in relation to which the latter owes him some duty as to his safety, it is ordinarily a question for the jury to resolve whether the directions and assurances given were improper, and such as to amount to negligence in the particular circumstances, and also whether the reliance upon the following out of them in the situation involved constituted contributory negligence.”

We rule the contention against defendant.

Defendant next contends that the court erred in giving at plaintiff’s request Instructions P-2 and P-3. Defendant asserts that neither instruction submits any principle or theory of negligence or hypothesizes any facts which would constitute negligence. Thus the substance of defendant’s attack on these instructions is that plaintiff made no submissible case. Defendant refers us to the same authorities cited under his Point I.

Once again, defendant arbitrarily calls plaintiff a volunteer, which he was not under the facts, and even if he were, defendant owed plaintiff a duty because plaintiff (1) had an interest in the work and property and (2) plaintiff was requested and directed by defendant to act. Fletcher v. Kemp, supra.

And again, defendant states that the only way plaintiff can make a case is on “failure to warn”. Once again, falling into the error of classifying plaintiff as a volunteer and ignoring the facts that (1) plaintiff was on his own land where he had a right to be, (2) plaintiff was interested in the work and property and (3) defendant requested, directed and told plaintiff what to do and how to do it. Under these facts, plaintiff cannot be a volunteer. But, even if he were, the cases point up the duty owed by defendant to plaintiff and in such cases one finds nothing that states nor intimates that failure to warn is the only ground of negligence and basis of recovery. The contention lacks merit.

Defendant next claims that it was error to refuse his Instruction D-A. He says: “Where plaintiff does not submit any specific negligence, the simple instruction that ‘if you find defendant was not guilty of any negligence as submitted in other instructions’ is a good instruction.” That is true. However, it has no bearing here because plaintiff did submit specific negligence.

Defendant’s fifth point is that the court erred in admitting evidence as to damages by reason of plaintiff’s loss of future crops. Plaintiff testified that due to his injuries he was unable to plant approximately twenty-five acres of corn on his own land; that for fifteen years he had “cropped” the Hall land which joins plaintiff’s home place; that he had planned on putting in a crop on forty acres of the Hall place.

In a case involving a farmer, Myers v. Karchmer, 313 S.W.2d 697 (Mo.Sup.), the same contention was made as is made here, i. e., that since plaintiff was a farmer, he was engaged in a business operation and any loss would be a loss of business profits, hence a matter of speculation and conjecture. The court overruled the contention and said, loc. cit. 705, “from the evidence * * * at least a part of plaintiff’s income was derived from physical labor, skill and knowledge, without the employment of substantial capital. * * * There was substantial evidence that plaintiff, by reason of [his] injuries, would sustain a loss of future earnings. The amount of such future earnings was for the jury on the evidence presented.”

In the instant case, plaintiff, after a proper foundation showing crops planted, yield and similar conditions, introduced evidence as to the loss of crops for one year only, 1961, the year plaintiff was crippled and unable to work. The point lacks merit.

Defendant’s final contention is that the court erred “in failing to discharge the jury after plaintiff’s voluntary statement about insurance.” Plaintiff was asked by his counsel: “How did you happen to go down there on this day and time? A. I was interested. I just went down there to see how he (defendant) was getting along. Q. Now, if you will just tell the jury what happened.” Plaintiff’s answer then recited what he was doing, how the accident happened, etc., which occupies twenty-three lines of the transcript, and then plaintiff voluntarily said defendant came to see him in the hospital, and said, “Well, I wouldn’t worry about that. He said, ‘I’ve got insurance with the Fidelity Insurance Company.’ He told that to me.” Thereupon, the court instructed the jury to disregard the last statement of plaintiff and not to consider it as evidence.

In the case of Vesper v. Ashton, 233 Mo. App. 204, 118 S.W.2d 84, plaintiff’s counsel asked plaintiff, “Who was the man that came out and wrote this up?” (Referring to statement) Plaintiff replied, “As I understood, he was an insurance man.” In an exhaustive opinion this court held:

“There are a number of cases holding that where a question is asked in good faith and the answer, such as the one involved in the case at bar, is voluntary on the part of the witness, there is not error in refusing to discharge the jury because of the mention of the question of insurance by the witness.” (Cases cited.) “However, in the last analysis, whether the jury should be discharged, under such circumstances, depends upon whether there was good or bad faith in the injection of the question of insurance. Jablonowski v. Modern Cap Mfg. Co., 312 Mo. 173, 201, 279 S.W. 89; Cazzell v. Schofield, 319 Mo. 1169, 1195, 8 S.W. 2d 580.

“It was admitted at the trial that the statement of the witness about the insurance was purely voluntary and, of course, counsel for plaintiff did not act in bad faith. There is nothing to show that plaintiff, herself, acted in bad faith in the matter and we cannot say that the court erred in refusing to discharge the jury under all of the circumstances.”

Likewise, in the instant case, the statement was not responsive to the question asked, but purely voluntary, and there is no showing of bad faith on the part of plaintiff.

In determining whether a mistrial should be granted because of the improper injection of insurance into the case, much must be left to the sound discretion of the trial court, and it is only where a manifest abuse of discretion appears should the appellate court interfere. Gray v. Williams, 289 S.W. 2d 463 (Mo.App.) We find no such abuse of discretion here.

Finding no error prejudicial to defendant, the judgment is affirmed.

All concur.


text:
    VIDEON CORPORATION, a Missouri Corporation, Appellant, v. Tyre W. BURTON, E. L. McClintock, William Barton, Frank J. Iuen, and Frank W. May, Commissioners, Public Service Commission, State of Missouri, Jefferson City, Missouri, and Southwestern Bell Telephone Company, Respondents.
    No. 23778.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.

      Friedman, Lawson & Burns, Clayton, Ryan & Maitland, Kansas City, Edward J. Lawson, Clayton, John P. Ryan, Kansas City, for appellant.
    Glenn D. Evans, Gen. Counsel, and Thomas J. Downey, Asst. Counsel, Jefferson City, for Public Service Commission.
    John Mohler and Wm. C. Sullivan, St. Louis, for Southwestern Bell Telephone Co., respondents.
   MAUGHMER, Commissioner.

Appellant, Videon Corporation, has been since July 12, 1959, engaged in the business of television service. Respondent Southwestern Bell Telephone Company is a public utility corporation furnishing telephone service in the Midwest, including the City of St. Louis. Each year Bell, in connection with the publication of its regular telephone directory in which all subscribers are listed alphabetically, publishes the Greater St. Louis Classified Telephone Directory, or the St. Louis Yellow Pages. In this Classified or Yellow Page directory commercial telephone customers are classified as to their types of business or professions and listed in alphabetical order thereunder. They may also, for an additional monetary consideration, place an advertisement in the Yellow Pages describing their particular type of merchandising or service offered, providing the contents thereof has the approval of the publisher. Southwestern Bell refused to accept or include, in its 1961 addition of the St. Louis Yellow Pages, Vide-on’s proffered advertisement. Videon thereupon filed a complaint with the Missouri Public Service Commission, alleging that Bell’s refusal was unreasonable, discriminatory and unlawful. It asked that the Commission order and direct acceptance and publication of the tendered advertising. After an exhaustive hearing the Commission denied and dismissed the complaint, holding, in effect, that the refusal was not unreasonable or unlawful. The circuit court on review affirmed, and Videon has appealed to this court.

Videon had requested approval for use of the phrase “Videon checks tubes in the home free”, in the 1960 Yellow Pages. Bell refused, but a compromise was reached and in lieu thereof these phrases were accepted and used in advertising which appeared in the 1960 addition. “Pay only for tubes necessary to fix your set”, and “If tubes won’t fix your set, you pay nothing”. The Telephone Company was unwilling to renew the advertising with this particular wording for the 1961 issue. No further compromise was effectuated — hence this litigation.

Many witnesses testified before the Commission. Numerous exhibits were received in evidence. It is Videon’s position that the chief basis of their particular appeal for business lies in the fact that they check tubes in the home free. Mr. Beatty, president, and Mr. Boos, salesmanager, said the whole purpose of their advertising is to create an image in the minds of the public for “free tube checking in the home”. It was the testimony of these company officers-that although the company advertises in-other media, their calls for service must almost all come by telephone, that while owners of television sets may see Videon’s advertising on television or hear it on radio, they will not write down the name, the address or telephone number of the company unless and until their sets become inoperative and they need the service, at which time they will look in the Yellow Pages and if appellant is not there advertised it will lose business. President Beatty of Videon estimated that there had been a fifty percent decline in the number of their customer telephone calls since publication of the 1961 directory.

Videon’s business classification, as to which there is no dispute, is under “Television service”. Three hundred sixty-five television service groups in the St. Louis area were listed in the 1961 Directory but only 133 of these advertised in the Yellow Pages and these conformed to Bell’s requirements.

Mr. John A. Owen, Directory Sales Supervisor for Southwestern Bell testified that Videon’s advertisement was refused because: (1) The rule of Southwestern Bell reading “The use of the word ‘free’ is not permitted in any advertisement unless the article or service is actually free or unless the conditions governing the offer are so pronounced and prominent as to preclude possibility of misunderstanding”; (2) Bell was “going along” with the advertising plan of the Better Business Bureau, under which the word “free” or words that had the same meaning as “free” could not be used in “Television Service” advertising; (3) The actual decision to reject was directed by Mr. Hyatt, his superior officer; (4) Acceptance would have violated an agreement with the television industry in St. Louis.

Neither Mr. Owen nor Mr. Hyatt had personally received complaints as to Videon or its advertising as contained in the 1960 Yellow Pages. However, Mr. John L. O’Brien, President and General Manager of the Better Business Bureau in St. Louis, stated that his office had received such complaints (177 in number) some written and some by telephone. Mr. O’Brien described a meeting of representatives of the television service industry in St. Louis held on March 17, 1960, in the Chase Hotel. Some 300 representatives were in attendance. More than half signed pledge cards approving certain standards of advertising for the industry. We set forth some of these standards:

Item 5. “Bait advertising and selling practices shall not be used. Bait advertising is an alluring but insincere offer to sell something to the general public. * * * Its primary purpose is to induce customers to respond so that they can be switched to other items”.
Item 6. “Price advertising. There shall be no quotation of a price or prices for service calls, examination or labor, in any advertisement. * * * ”
Item 7. “Free service. There shall be no wording or device used to give the impression that service will be given without cost * * *

Videon employed some 22 servicemen who responded to these customer calls. They were paid $2 per hour by Videon plus 20 percent commission on the sale of tubes and on repair work if the set was brought in for repair. Only about 15 percent of the calls failed to result in either tube sales or repair work. Videon offered and there was received in evidence various advertisements found in the St. Louis Directory in which the word “free” or words of similar import appeared. We mention two. Arthur Murray Dance Studios. “Free! Private Lesson and Studio Party”, and the Telephone Company itself advertised it would furnish free planning for telephone service in new homes. Telephone directories from other cities (Dallas, Ft. Worth, Wichita and Louisville) were received. These contained television service advertising similar to that proffered by Videon. However, the St. Louis Directory contained no such advertising from any representative of the “Television Service” industry.

The Commission concluded that while advertisements similar to Vidcon’s appeared in Southwestern Bell Directories in other cities, respondent was making an effort to eliminate such advertising and it could not be done all at once in every city; that appellant was not the victim of unlawful discrimination and denied the complaint.

We are first confronted with respondent Southwestern Bell’s challenge to the jurisdiction of the Public Service Commission. Its counsel declared it was willing “to submit its controversy with Videon to the Commission as an impartial umpire”; otherwise it would have sought a writ of prohibition. Bell prevailed as to the ultimate result before the Commission and filed no motion for rehearing, nor did it appeal. The Commission asserts that because Bell failed to file a motion for rehearing that the protest or challenge as to the Commission’s jurisdiction has been waived. It has long been the rule that “objections to jurisdiction” may not be waived and may be first presented on appeal. In fact the court may and should examine the question, sua sponte. State ex rel. Smithco Transport Co. v. Public Service Commission, Mo.App., 307 S.W.2d 361, 374, and Peerless Fixture Co. v. Keitel et al., 355 Mo. 144, 195 S.W.2d 449, 451. Nevertheless, Bell filed a motion to dismiss for want of jurisdiction and urges that point on appeal. We must determine if the Commission has jurisdiction to regulate advertising in the Telephone Company’s classified directory. The Commission expressed the opinion that “in all matters where a utility company under the jurisdiction of the Commission is charged with performing in a discriminatory manner any service for which it makes a charge, the Commission has jurisdiction to pass upon such question”. Respondent Bell was thereupon ordered to file with the Commission “a copy of the advertising rules and regulations pertaining to the Yellow Pages of its Missouri Directories”.

The Missouri Public Service Commission has only such powers as are expressly conferred upon it by the Statutes and such as are reasonably incidental thereto. State ex rel. and to use of Kansas City Power & Light Co. v. Buzard, en Banc, 350 Mo. 763, 168 S.W.2d 1044; State ex rel. Harline v. Public Service Commission, Mo.App., 343 S.W.2d 177, 181.

We quote from the applicable Missouri statutes, Section 386.250, V.A.M.S.: “Jurisdiction of the Commission. (6) To all telephone lines, as above defined * * * so far as said telephone * * * lines are and lie, and so far as said telephone companies * * * conduct and operate such line or lines, * * * within this state”. Section 386.020, V.A.M.S. (18) “The term ‘telephone line,’ when used in this chapter, includes conduits, * * *, appliances and! all devices, real estate, easements, apparatus, property and routes used, operated, controlled or owned by any telephone corporation to facilitate the business of affording: telephonic communication”. (Italics added).

In California Fireproof Storage Co. v. Brundige et al. (1926) 199 Cal. 185, 248 P. 669, 670, 671, 47 A.L.R. 811, the telephone company sought to charge petitioner $100 per month for a half page advertisement in its classified directory while other advertisers could secure the same space at $50 per month. The California Railroad Commission held it had no jurisdiction. The Supreme Court reversed and directed the Commission to take and exercise jurisdiction, saying:

“The single question presented in this proceeding is as to whether the Railroad Commission has, and should, assume jurisdiction over the telephone directories of the Southern California Telephone Company, a public service corporation, and over the matter of the form and content of such directories, and over the matter of the charges and receipts of said corporation connected with, and accruing from, the publication, distribution, and use of such directories. A telephone directory is an essential instrumentality in connection with the peculiar service which a telephone company offers for the public benefit and convenience. It is as much so as is the telephone receiver itself, which would be practically useless for the receipt and transmission of messages without the accompaniment of such directories. The form which such directories conveniently took with the inception of this modern method of message transmission was that of an alphabetical list of the names of the subscribers to the service, and there can be no question as to the right of the regulatory body over this form of public utility to regulate the form, content, and cost thereof to subscribers who had entitled themselves to the convenient use of such service.
******
"In the development of this form of public service telephone companies have found it practicable and profitable to diminish the cost and increase the profits of operation by making use of its directories as a means and form of advertising available to its subscribers. The activities of these companies in this direction have taken on two forms: First, that of the insertion of advertising matter in connection with its classified list; second, in the printing in the alphabetical list of its subscribers the names of those who are willing to pay for such preference in boldface type, or, in other words, in a better and clearer type than that employed in printing the names of subscribers not paying extra for such preferment. Granting the right of these public service corporations to employ this instrumentality for such profitable purposes, we cannot do other than regard its use for such purposes as a mere incident in the operation of its public service over which the regulating body ought to have full control.
⅜ ⅜ * ⅜ # * "The telephone service in its relation to the public, and in its general and practical operation is, or at least tends to be, a natural monopoly; and, this being so, it is, in an especial sense, the proper subject of public regulation and control”.

The California Public Utilities Commission (1957), Frank Serpa, Jr. v. Pacific Telephone & Telegraph Co., 17 P.U.R. 3d 378, 380, said: “Since the publication of advertisements and the listing of businesses in a directory is vital to the proper rendition of telephone service it is a matter within the regulatory jurisdiction of the Commission”. That the Michigan Public Service Commission and the Oklahoma Corporation Commission exercise jurisdiction over advertising in the telephone companies’ directories is plainly revealed by examination of the rulings in The $5 a Day and a Mile Rent-a-Car Co. v. Michigan Bell Telephone Co., Case No. U-665, Aug. 3, 1961, and AAA * * * Inc. v. Southwestern Bell Telephone Co., Cause No. 22593, May 16, 1961, Oklahoma Commission.

However, there is weighty authority to the contrary. Mr. Justice Pecora (Abco Moving & Storage Corp. v. New York Telephone Co., Sup.Ct. New York County, 1948, 193 Misc. 96, 83 N.Y.S.2d 448, 449) said: “In my opinion, the telephone company in publishing a classified directory does not perform an essential public service except with respect to ordinary listings therein. As to advertisements the position of a telephone company is analogous to that of the publisher of a newspaper or magazine”. McTighe v. New England Telephone & Telegraph Co. (U.S.App.2nd Cir. 1954) 216 F.2d 26, 27, involved a breach of contract for omitting plaintiff's name from both the alphabetical and classified directories. Medina, Circuit Judge, said:

“As the publication of the alphabetical directory is an essential feature of the service rendered by the telephone company, regulations and requirements relative thereto appear together with the tariffs as filed with the Vermont Public Service Commission.
* * * * * *
“The publication of the classified directory, however, is wholly a matter of private contract and contracts relating thereto are not required to be filed with the Public Service Commission which has no jurisdiction except over matters relating to the public utility services rendered by the company and the rates relative thereto”.

In Felix v. Pennsylvania Public Utility Commission, 187 Pa. Super. 578, 146 A.2d 347, 350, 351, appellant filed a complaint requesting that rates charged by the telephone company for listings in its classified directory be declared a matter within the jurisdiction of, and subject to, regulation by the Commission. The Commission dismissed the complaint for want of jurisdiction and the Supreme Court of Pennsylvania affirmed, saying:

“As an advertising medium the classified directory is similar to the sale of appliances or equipment by utilities. Such activities are normally not within the jurisdiction of the Commission.
⅜ ⅜ ⅜ $ ' ⅜ ⅜
“ * * ⅜ since the classified directory, except insofar as standard type listings furnished free to subscribers are concerned, is an advertising medium and not a public service, the Commission did not err in declining to take jurisdiction of appellant’s complaint”.

The subscribers (Mitchell et al. v. Southwestern Bell Telephone Co., Mo.App., 298 S.W.2d 520, 524) sued the telephone company for damages for breach of an advertising contract because one of the telephone numbers used was not the correct number. The court said:

“The running of advertisements in the classified section of a telephone directory is not a public service but a matter of private contract between the subscriber and the telephone company and a contractual limitation of liability for the breach of such a contract is a valid limitation. Baird v. Chesapeake & Potomac Telephone Co., 208 Md. 245, 117 A.2d 873; McTighe v. New England Telephone & Telegraph Co., 2 Cir., 216 F.2d 26; Russell v. Southwestern Bell Telephone Co., D.C.Tex., 130 F.Supp. 130”.

The weight of authority seems to treat the publication — including advertising — of a classified telephone directory as being more nearly a private matter than one of public interest so as to make it subject to regulation by a Public Service Commission.

However, a telephone company enjoys the advantage of being a monopoly for its area in the field of telephonic communication. As a subscriber for a private telephone I am entitled to have my name and telephone number listed in the regular directory. It is part of the service furnished in return for my payment. Without such a current alphabetical directory, the utility value of my telephone would be infinitely less. Apparently all the court and commission authorities agree that this regular directory is subject to the jurisdiction of and regulation by the Public Service regulatory bodies. A greater charge is paid for a business telephone than for a private telephone and in partial return therefor the customer is entitled to be listed under the proper business or professional grouping in the Classified Directory. Such subscriber also has what might be termed an option to buy advertising therein subject to the reasonable rules and regulations of the Telephone Company. Who or what body shall determine if these rules and regulations are reasonable? Shall the Telephone Company alone have such authority subject only to possible correction for gross abuses by the courts? The Classified Directory, like the regular directory, or, for that matter, the telephone itself, is provided by a company which enjoys an absolute monopoly. A business dependent even partially upon the telephone — and many businesses are to a great extent so dependent — is at a tremendous disadvantage with no telephone. It is prejudiced if not listed in the Classified Directory and the business is damaged if it is denied the right to advertise in the Classified Section, especially if competitors do advertise there. There is no comparable advertising media. The Telephone Company’s control of telephones is no more monopolistic than is its control of the Classified Directory advertising. In neither instance can the customer secure either the telephone or the Classified Directory advertising elsewhere. The company derives revenue from this source which should be and is considered in fixing the over-all rates. We think the value of this advertising media has of recent years become increasingly greater.

Our Missouri Statute (Sec. 386.020(18) supra), provides for regulation of any apparatus or property used “to facilitate the business of affording telephonic communication”. Is not the Classified Directory and the advertising in connection therewith a property or a publication which is an integral part or an adjunct, which actually does “facilitate the business of affording telephonic communication”? If it is, then our Legislature has given jurisdiction to the Commission and it is generally conceded that the Legislature may grant or delegate such authority. Respondent Bell’s contra position here is that the legislative body has not done so.

We believe that the publication of the Classified Directory and the advertising thereunder is a method, procedure and operation which is designed for and actually does facilitate the business of affording telephonic communication, is truly a monopoly in that advertising field and is public business insofar as its business subscribers are concerned. Such a publication sui generis ought to be subject to reasonable rules and regulations. The Telephone Company would probably not try to enforce arbitrary requirements and should be given great leniency in restricting the contents of advertising, not only for the protection and preservation of its own good name but also to shield the public from pillage and misunderstandings. While the company itself might do these things, it is the procedure under our system of government, for a corporation serving in natural monopolistic fields to be subjected to regulation in all of its business ramifications where the customer, unprotected by competition or freedom of contract, might be imposed upon or harshly treated. In Missouri the Public Service Commission is the body created especially to exercise such regulatory function. We believe our Legislature has by statute (Sec. 386.020 [18] supra) vested such power and authority in the Commission. It is our opinion that during recent years the importance and value of the Classified Directory and the advertising therein in a large city, has become so great and vital, that the courts should liberally approve rather than narrowly restrict, the exercise of such regulation. We, therefore, hold that the Missouri Public Service Commission does have jurisdiction in the premises.

We now proceed to the merits of this controversy. Tire function of the circuit court and of this court in reviewing a decision and order of the Public Service Commission is to determine if such order is reasonable and lawful. Section 386.510, V.A.M.S. For the order to have been reasonable it must have been based upon competent and substantial evidence upon the whole record. Mo.Const.1945, Art. V, Sec. 22, V.A.M.S. Our function is not to substitute our judgment for that of the Commission on facts, but rather to determine whether the order was lawful and reasonable, and the burden to show it to be unreasonable is upon appellant. State ex rel. City of West Plains et al. v. Public Service Commission, Mo. en Banc, 310 S.W.2d 925, 929, 933.

Appellant invites our attention to Section 392.200(3), V.A.M.S., which provides :

“No telegraph corporation or telephone corporation shall make or give any undue or unreasonable preference or advantage to any person, corporation or locality, or subject any particular person, corporation or locality to any undue or unreasonable prejudice or disadvantage in any respect whatsoever;”.

This statute expresses a salutary principle and one supportable in both law and equity. However, unjust discrimination can only arise from discrimination among those in the same class. Advertising which might be acceptable in the industrial or service field might not be acceptable in another field. For example, dry cleaners might advertise free return delivery of garments left with them for cleaning and it would lead to less complaints and misunderstandings than would a television service advertisement proclaiming free inspection of tubes. In other words, we think a differentiation between these two groups would be reasonable. While we see no justification for accepting advertising promising something “free” from the Arthur Murray Dance Studio, that is a different field and a different classification from Videon’s television service. We believe Videon can successfully invoke discrimination only if a preference is demonstrated or a discrimination shown in its own particular field or class. The subject is treated this way in 73 C.J.S. Public Utilities § 7, pp. 999, 1000:

“A public utility is obligated by the nature of its business to furnish its service or commodity to the general public, or that part of the public which it has undertaken to serve, without arbitrary discrimination, and it must, to the extent of its capacity, serve all who apply, on equal terms and without distinction, as far as they are in the same class and similarly situated, since a reasonable classification is permissible, provided all those similarly circumstanced are treated alike”.

Again on this question we quote from Frank Serpa, Jr. v. Pacific Telephone & Telegraph Co., 17 P.U.R. 3d 378 (1957), wherein the California Public Utilities Commission said:

“(2) The policy of defendant in refusing to include prices in any advertisements placed in its classified telephone directory is found to be reasonable and necessary to prevent misleading and unfair advertising. The prices included in advertisements in a telephone directory which is published only once a year will very probably become unrealistic in view of changes in costs of labor and materials. Also, it permits ‘bait’ advertising, which is found to be undesirable.
* * * * * *
“Since the publication of advertisements and the listing of businesses in a directory is vital to the proper rendition of telephone service it is a matter within the regulatory jurisdiction of the Commission. However, because the telephone company in publishing the directory is itself a party to any representations therein and to any practices carried on by advertisers therein, it has the duty as well as the right to see that the public is treated fairly and honestly. It must, therefore, be permitted a reasonable amount of supervision and the determination of proper policies as to the content of advertisements published. These policies must be nondiscriminatory and fair”.

In Strauss v. University of State of New York, 2 A.D.2d 179, 153 N.Y.S.2d 397, 401, 402, the University regents prohibited certain advertising by optometrists, who claimed they were discriminated against in favor of opticians and oculists. The court said:

“In effect plaintiffs argue, aside from the point that the Regents had not the statutory power to enact the regulation, that it discriminates against this profession because opticians and oculists are allowed to practice under regulations which plaintiffs regard as less burdensome. But this, so it seems to us, is a matter to be settled within a profession. Each profession has its own intramural problems as well as its own aspirations which require special treatment according to its special needs. This kind of difference is not ‘discrimination’ in any constitutional or legal sense”.

See also State ex rel. Laundry, Inc. v. Public Service Commission, 327 Mo. 93, 34 S.W.2d 37, 43, 44.

On appeal appellant has urged that the refusal of its proffered advertisement amounts to a violation of Section 416.040, V.A.M.S. generally known as the Restraint of Trade and Conspiracy statute. We believe such charge is unsupported by the evidence and is not valid.

We find that the Commission’s finding of no unlawful discrimination and no unreasonableness in refusing to accept Videon’s advertising as submitted is supported by substantial and competent evidence. Certainly appellant has not sustained the burden resting upon it to show that the order was unreasonable and amounted to unlawful discrimination.

Finding no error, the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


author: SAMUEL A. DEW, Special Commissioner.

text:
    Floyd PEARSON and Frank L. Pulley, Plaintiffs-Respondents, v. Mamie M. PEARSON, Defendant-Appellant.
    No. 23701.
    Kansas City Court of Appeals. Missouri.
    June 3, 1963.

      Marion D. Waltner, Kansas City, for appellant.
    Frank L. Pulley, Cameron, pro se.
    J. E. Story, Cameron, for Floyd Pearson.
   SAMUEL A. DEW, Special Commissioner.

The plaintiffs-respondents, claiming as assignees of a special lien on real estate, created under the provisions of a judgment of the circuit court, sued to foreclose the lien. The defendant-appellant pleaded invalidity of the judgment and lien, and by counterclaim sought to be decreed the sole owner of the real estate, a finding that the plaintiffs-respondents had no right, title or interest in said real estate, and an order barring them from asserting the same. The court found the issues for the plaintiffs-respondents upon their petition and on defendant-appellant’s counterclaim. The defendant-appellant thereupon took this appeal.

In the interest of clarity and convenience the plaintiffs-respondents and the defendant-appellant will hereinafter be referred to, respectively, as the plaintiffs and the defendant.

The petition in this case pleaded a judgment rendered October 1, 1954 in the Circuit Court of Clinton County, Missouri, in two cases which had been consolidated and tried together, being Cases No. 3652, entitled “Dean B. Pearson et al. v. Ferris Pearson”, and Case No. 3489, entitled “Ferris Pearson v. A. and Lola O. Barlow, Mamie M. Pearson, Intervenor”. Plaintiffs alleged that the judgment in said two consolidated cases had decreed Dean B. Pearson to be the owner of the fee simple title to Lot 5, Seminary Place, City of Cameron, Clinton County, Missouri, “subject to the satisfaction of the judgment herein in favor of Ferris Pearson in the sum of $1771.46, and in favor of Mamie M. Pearson, in the sum of $2071.46; that upon the satisfaction of these two judgments his title to said real estate is quieted and he is declared and adjudged to be the fee simple owner thereof”; that the judgment further awarded to Dean B. Pearson upon the same conditions, rents from said property accumulated in the hands of the Farmers Bank of Cameron, Missouri, in escrow. It was further alleged that the said judgment lien in favor of Ferris Pearson in the sum of $1771.46 was assigned to the plaintiffs on October 4, 1954, and so shown in the records of the court; that no part of the lien had been paid, and that in May, 1960, Dean B. Pearson conveyed the real estate described to Mamie M. Pearson by warranty deed. The plaintiffs prayed judgment foreclosing said lien and for an order on the sheriff to sell the property as provided by law for the purpose of satisfying the lien.

By her answer and counterclaim defendant averred that the portion of said judgment purporting to establish liens in favor of Ferris Pearson and herself, respectively, was insufficient to constitute a valid lien, is null and void and vested no interest in said property in Ferris Pearson; that it does, however, cast a cloud on her title and should be removed.

Predicated on a charge of a conspiracy and a scheme extending over past years to cheat and to defraud her of her property, of which the judgment lien and assignment were referred to as a part, defendant alleged that her husband, Ferris Pearson, had brought suit against her for divorce in Davies County, Missouri, in 1952, attempting to get service on her by publication when he and Frank Pulley, his attorney, had actual knowledge of her place of residence from a prior suit she had brought against him for separate maintenance which she later dismissed; that she learned of his suit for divorce, entered her appearance, defeated his claim for divorce and obtained a judgment against him on her counterclaim therein for separate maintenance for $50 per month; that no part of same had been paid to her; that the divorce petition had alleged her insanity and requested a guardian ad litem, but such allegations and request were withdrawn after her order of restoration was issued on September 18, 1952.

The defendant in her answer herein further alleged that three days after the date of the judgment in the consolidated cases and before motions for new trial had been filed and overruled, Ferris Pearson, on October 4, 1954, assigned that judgment to the plaintiffs herein containing the lien provisions in favor of Ferris Pearson in the sum of $1771.46, all for the fraudulent purpose of preventing defendant from collecting her judgment for separate maintenance. It was further stated that appeals from said judgment in the consolidated cases were later taken and the appeals dismissed by the appellate court. It was also alleged that there was no consideration paid for the assignment of the judgment lien sued on; that the payments therefor ($1000 by plaintiff Frank L. Pulley and $800 by plaintiff Floyd Pearson) recited in the purported assignment were false; that her deed gave her the property as her sole and separate estate; that the judgment lien, if any, had elapsed under the statute for failure to file scire facias. Defendant prayed, by way of cross bill herein, to be adjudicated as the sole owner in fee of the lot in question, for a ruling that plaintiffs have no right, title or interest in or to the said property and for an order barring them from claiming the same. By reply, plaintiffs pleaded res judi-cata and general denial.

Without objection plaintiffs introduced in evidence the judgment sued on. It was rendered in the Circuit Court of Clinton County, Missouri, October 1, 1954, on the trial of two consolidated cases involving the real estate in question. One case, No. 3489, was brought by Ferris Pearson against Arthur Barlow and wife for damages for failure to convey the property in question to the assignee of Ferris Pearson, as per contract, after having received partial payments for said property under contract, and after Mamie M. Pearson had been adjudged a person of unsound mind. The other case, No. 3652, brought by Dean B. Pearson (a son of Ferris and Mamie M. Pearson) against said Ferris Pearson and Mamie M. Pearson, Arthur Barlow and wife and Farmers State Bank of Cameron, Missouri, escrow agent, alleging a forfeiture by the defendants Pearson in their contract with defendants Barlow to purchase the lot herein involved; alleging a later purchase by-Dean B. Pearson of the interest of defendants Barlow, and the failure of the Barlows to execute to Dean B. Pearson a warranty deed to the property, and for a finding sustaining such alleged forfeitures, ordering the warranty deed as prayed, canceling the deed of the Barlows held by the bank under the contract between the Barlows and Ferris Pearson and wife, and a finding that the title to said property he vested in Dean B. Pearson and wife.

The decree in the foregoing two consolidated cases and on which the present assignment and suit are based, found the fee simple title to the lot in Dean B. Pearson “subject to the satisfaction of the judgment herein in favor of Ferris Pearson in the sum of $1771.46, and in favor of Mamie M. Pearson in the sum of $2071.46; that upon the satisfaction of these two judgments, his title to said real estate is quieted and he is declared and adjudged to be the fee simple owner thereof”. The decree made further provisions for release to Dean B. Pearson of certain accumulated rents and insurance checks in the hands of Farmers State Bank of Cameron, Missouri “only after the judgments in favor of Ferris Pearson and Mamie M. Pearson are satisfied of record.”

Plaintiffs herein next introduced in evidence a special warranty deed to the premises in question, dated May 20, 1960, from Dean B. Pearson and wife to defendant Mamie M. Pearson as “her sole and separate estate and property to deal with and to convey, free and clear of any right, title or interest of any spouse present or future”. In the deed the grantors warranted against the lawful claims and demands of “all persons claiming under them”.

Plaintiff Pulley, as a witness in behalf of plaintiffs herein, identified an instrument introduced in evidence as an assignment to him and to Floyd Pearson (also a son of Ferris and Mamie M. Pearson) of the above judgment lien for $1771.46 in the two consolidated cases described, which assignment recited a consideration therefor of $1800 ($1000 by Frank L. Pulley and $800 by Floyd Pearson), and a covenant by Ferris Pearson that said sum of $1771.46, with interest, remained due and unpaid him on said judgment. Plaintiff Pulley testified that the $1800 represented in part the value of legal services he had performed for Ferris Pearson in four lawsuits which had not been paid, and that the judgment lien was wholly due and unpaid; that he knew nothing about the sum named as due Floyd Pearson under the assignment. He stated that three days after the date of the judgment he recorded the assignment. He said he knew it had to be recorded but he had no particular reason to file it so soon; that he knew Mamie Pearson had obtained a judgment against Ferris Pearson for separate maintenance,, but did not know whether-it had been paid; that he did not get any consent of the judgment debtor to the assignment.

Plaintiff Floyd Pearson identified the assignment sued upon and said he had received no payment thereon. He said the $800 recited as his consideration for the assignment was money loaned at different times by him to Ferris Pearson. He said he did not have the records of such loans at hand. He said the total amount of the judgment lien had nothing to do with fixing the amount of the assignment for money loaned.

Defendant introduced certified copies of the record entries between April, 1952 and May 19, 1953, in the divorce case filed by Ferris Pearson against Mamie May Pearson, Case No. 8459, in the Circuit Court of Davies County, Missouri. Among other allegations in such divorce petition it was stated that the defendant (Mamie May Pearson) had been adjudged in 1919 to be a person of unsound mind and had no legal guardian. A guardian ad litem was prayed for to represent the defendant. The records in that case show that on December 3, 1952, Ferris Pearson made affidavit that Mamie M. Pearson’s place of residence was unknown and that she had absented herself from her usual place of abode and concealed herself so that the usual process of law could not be served upon her. That affidavit was sent by Frank L. Pulley, as attorney for Ferris Pearson, and one of the plaintiffs in the instant case, to the clerk of the court and publication was ordered. The order of publication in the divorce case was duly published in a local newspaper. On January 8, 1953, Ferris Pearson struck from his petition for divorce the allegation regarding the adjudication of Mamie May Pearson as a person of unsound mind. Upon the filing of the affidavit of publication defendant filed her motion to dismiss the divorce case, which was overruled. Defendant thereupon filed answer on April 24, 1953. The cause was tried May 19, 1953. The court denied Ferris Pearson a divorce and allowed defendant’s cross petition for separate maintenance in the sum of $50 per month and $200 attorney’s fees.

In the instant case defendant also introduced records of a prior proceeding for separate maintenance and support filed by her in the Circuit Court of Jackson County against Ferris Pearson, No. 556,990, January 29, 1952. This case was dismissed by her on May 19, 1953, without prejudice, because of a question of jurisdiction. In the style of that case defendant’s place of residence was shown.

As her own witness defendant testified that she was occupying the premises involved and had been since August, 1959; that for some time her son Dean had paid her rent therefor to the receiver; that the rent discontinued when she acquired a deed to the property. She said the money used by her husband Ferris Pearson to pay to the Barlows on the contract to purchase the property was out of a joint fund of his and hers derived from the operation of a farm where they had lived. She stated that during the pendency of her husband’s suit against her for divorce she was living at 3814 Harrison Street in Kansas City, Missouri, and that she at no time had absconded or absented herself from her usual place of abode. A friend, she said, had sent her a published notice of the suit. She admitted that she had voluntarily entered her appearance in the case and was personally present when judgment was pronounced.

Defendant’s first point relied on in this appeal is that the assignment sued on is void because it purported to assign different portions of the judgment to different persons without the necessary consent of the judgment debtor. It has been stated and restated by this court that “[N]o suit may be maintained against a [judgment] debtor on a partial assignment without his consent either at law or in equity.” Howard Undertaking Co. v. Fidelity Life Ass’n, Mo.App., 59 S.W.2d 746, 748; Miller et al. v. Heisler et al., Mo.App., 187 S.W.2d 485, 488. The assignment sued on herein, however, while reciting different considerations paid by the assignees named, yet transfers to both assignees jointly the whole of the lien described without apportionment. Such would not be a partial assignment of the judgment without the consent of the judgment debtor within the meaning of the rule relied upon, nor would the rule apply since the debtor is not a party to this action, nor called upon to pay the judgment, nor is calling into question the validity of the assignment. Miller v. Heisler, supra.

Defendant next asserts that the assignment is void for want of consideration; that the considerations named were, in fact, not money paid for the assignment, but consisted of alleged services and for money loaned for which no records were produced. There was substantial evidence of the services rendered and the money loaned to Ferris Pearson and no proof offered to the contrary. We defer to the trial judge the matter of the credibility of the witnesses on the point made and overrule the contention.

Defendant also challenges the sufficiency of the “judgment” referred to in the assignment sued on. She contends that the only reference to a “judgment” such as plaintiffs seek to enforce as assignees consists of the words “subject to the satisfaction of the judgment herein in favor of Ferris Pearson in the sum of $1771.46 * * * ”; that no other entry makes mention of such a “judgment”, and that, at best, it would only indicate a money judgment for which a lien on real estate for three years is provided for by Sections 511.350 and 511.360, R.S.Mo., 1959, V.A. M.S., unless renewed on timely scire facias. Of course, the only “judgment” in the consolidated cases described was the entire decree or judgment adjudicating the fee simple title to the real estate in Dean B. Pearson on the conditions stated. It is apparent that the court in those consolidated cases, finding certain amounts of money to be due to two of the parties, growing out of the subject matters involved, included those parties and their allowances in the decree and prescribed equitable liens on the title to the .real estate to secure them. In so doing, the court referred to the adjudicated liens themselves as “judgments” in the decree, to be satisfied as a condition of the fee simple title to the real estate awarded to Dean B. Pearson. In State ex rel. Whatley, Jr. v. Mueller, Mo.App., 288 S.W. 2d 405, 410, the court quotes with approval from 49 C.J.S. Judgments § 72, p. 192, as follows: “An obscure judgment entry may, however, be construed with reference to the pleadings and record, and, where on the whole record its sense can be clearly ascertained, the judgment will be upheld.” The court further said (p. 410 of 288 S.W.2d): “Even though the judgment may not be complete within itself, and contain within its four corners the mandate of the court, it is nevertheless sufficient if it can be made perfect by .reference to the pleadings or papers on file in the case.” The Supreme Court has stated and reaffirmed the following principle: “Thus an order or judgment (at least one which is not absolutely unintelligible) cannot be void on its face or an absolute nullity if it appears that the court which entered it had jurisdiction of the parties and of the subject matter and had jurisdiction to enter the particular order.” State ex rel. Rosen v. McLaughlin et al., Mo. en banc, 318 S.W.2d 181, 185, 68 A.L.R.2d 1366. See also Flynn v. Janssen et al., Mo., 266 S.W.2d 666, 670(3). The judgment in the case at bar on its face shows no jurisdictional defects, is presumptively valid and binding and may not be collaterally attacked. Brand v. Brand et al., Mo., 243 S.W.2d 981, 983; Johnson v. Baumhoff, 322 Mo. 1017, 18 S.W.2d 13; Vorhauer et al. v. Sweeney et al., Mo.App., 217 S.W.2d 985, 987.

Likewise, defendant complains that the judgment is void because it fails to make provisions for its execution. This is a collateral attack on the validity of the judgment which, as stated, cannot be entertained or sustained. Such, too, is her further point that the judgment in the two consolidated cases was not authorized by the pleadings in such cases, which point, for the reasons given, must be overruled. Furthermore, in defendant’s attack upon the validity of that judgment, it will be recalled that she was a party to the consolidation and trial of those cases and the judgment therein, which awarded a conditional fee title to thei property involved to Dean B. Pearson, who was the grantor of the warranty deed under which she is now claiming title to the property. She is therefore denying the validity of a judgment under which her grantor took title. “The rule”, said the court, in part, in Owen v. City of Branson, Mo.App, 305 S.W.2d 492, 497, “precludes one who accepts the benefits from questioning the validity of the accompanying obligations. For convenience, we will hereinafter refer to this rule or doctrine as an estoppel.” See also Sage v. Finney, 156 Mo.App. 30, 135 S.W.2d 996, 1000.

The further point is made that regardless of the validity of the judgment and lien, the lien would have long ago become dormant under Sections 511.350 and 511.-360, R.S.Mo.1959, V.A.M.S., limiting to three years the period for which a judgment in the circuit court is a lien on real estate of the judgment debtor. Those sections do not apply to the special liens here under consideration. “These sections do not apply to judgments and decrees which specifically create liens against real estate described in the judgments, but to judgments in personam.” Rosenzweig v. Ferguson, 348 Mo. 1144, 158 S.W.2d 124, 126. See also Sidney Smith, Inc. v. Steinberg, Mo.App., 280 S.W.2d 696. We conclude that the record does not show expiration of the liens in suit.

Defendant again reviews generally the extensive litigation between herself and Ferris Pearson and the conduct of the parties participating therein as described here-inbefore, and asserts that the record is so fraught with fraud as to vitiate any recovery by the plaintiffs in the instant case. The charges are the same or similar to those heretofore reviewed and we find no justification in the record for an adjudication of fraud in the present action.

Lastly, the defendant again attacks the validity of the judgment containing the liens sued upon herein. She states that the judgment is void because it did not dispose of all of the issues as to all of the parties. Defendant assigns as an additional attack upon the judgment . in the consolidated cases that it did not adjudicate the issues in Case #3489, nor the issues in Case #3652 as to Joyce Pearson (wife of Dean B. Pearson, plaintiff therein) and as to defendants Barlow. It was said in Skillman et al. v. Clardy, 266 Mo. 297, 165 S.W. 1050, 1056: “The rule is that judgment defendants well served * * * cannot complain, even on appeal (let alone on collateral attack), that the judgment is void as to the parties defendant not served * * *. The modern doctrine is that a judgment * * * is no longer held to be in so far forth an entirety that if void as to one it is void as to all.” As heretofore ruled, we may not entertain an indirect collateral attack on the validity of the judgment for the reasons already assigned.

There being no error substantially affecting the merits of the judgmefit in the case, the same should be affirmed. The Special Commissioner so .recommends.

PER CURIAM.

The foregoing opinion of DEW, Special Commissioner, is adopted as the opinion of the Court.

BROADDUS, P. J., and HUNTER, J.„ concur.

CROSS, J., not participating.