text:
    Roy C. MUSGRAVES, (Plaintiff) Appellant, v. NATIONAL DAIRY PRODUCTS CORPORATION and Donald E. Norman, (Defendants) Respondents.
    No. 51338.
    Supreme Court of Missouri, Division No. 1.
    March 14, 1966.

      Benjamin J. Francka, Springfield, for plainti f f-appellant.
    Allen, Woolsey & Fisher, Harold J. Fisher, Russell G. Clark, Springfield, for defendants-respondents.
   HOLMAN, Presiding Judge.

In this action plaintiff sued National Dairy Products Corporation and its employee, Donald E. Norman, in an effort to recover damages for personal injuries in the sum of $75,000. He was injured in the manner hereinafter described while working in National’s Springfield, Missouri plant. The trial resulted in a verdict for defendants. Plaintiff has appealed and here contends that the trial court erred in giving Instructions 11 and 12 at the request of defendants.

The defendant, National, operated what was known as the Kraft Plant in Springfield, Missouri. On February 22, 1962, defendant Donald E. Norman was an employee of National. On that .date and for some time prior thereto certain construction work was in progress at the Kraft plant while operations continued therein. Plaintiff was employed by the AAA Electrical Contractors and Engineers Company as an electrical construction worker and had been working at the Kraft plant for several weeks. On the date mentioned he and two' other electrical workers entered the building through the east door at about 8 o’clock a. m. Plaintiff was walking through the corridor in a westerly direction with Ralph Van Winkle on his right side and Clifford Bower on his left. A.t about that time defendant Norman started driving a tractor pulling a train of about six small empty-carts. He proceeded toward the east in the corridor in question, turned slightly to his right and then back to his left, making a complete U-turn so that his train was headed back toward the west. As the tractor was completing the turn it passed plaintiff and his two companions. Shortly after completing the U-turn the last cart of the train struck plaintiff and inflicted certain injuries to his right leg and left knee, the extent of which will not be stated here because not material to the issues on this appeal.

Plaintiff testified that he and his companions were standing still as the train passed and that he was from ten to twelve feet from the tractor when it passed him; that the tractor speeded up in making the turn and the rear cart evidently “whipped out” and hit him; that he had seen the carts “whip” many times before but “had not seen them whip that much.”

Clifford Bower testified that as the carts approached them the back cart was not tracking; that it was whipping back and forth in a manner he described as “fishtailing.” He stated that the rear cart was moving three or four feet closer to them than the other carts.

Ralph Van Winkle testified that he was walking on plaintiff’s right; that he was even with plaintiff but Bower was three or four steps back; that he saw the rear cart when it was about eight or ten feet away and stepped back about four feet; that it “whipped out” toward them and he started to warn plaintiff, but plaintiff was hit before he could “holler”; that he had seen the carts whip before but never as much as occurred on that occasion; that the rear cart moved from one to one and one-half feet out of line.

Another construction worker, Loren Thomas, Jr., stated that he was standing about thirty feet to plaintiff’s right; that the tractor was going at “a pretty rapid pace” and just before the rear cart reached plaintiff it seemed to be sliding slightly toward plaintiff; that it slid probably a foot out of the normal path of the train.

Defendant Norman testified on behalf of the defendants, but we will not state his testimony as we do not consider such is necessary in order to determine the issues presented upon this appeal.

Plaintiff’s case was submitted under the res ipsa loquitur doctrine. His main instruction authorized a verdict for plaintiff in the following manner: “ * * * if you further find that defendants while in control of and pulling said cart caused and permitted said cart to suddenly leave its accustomed path of travel, swing out, and strike the plaintiff as it was being pulled past the plaintiff, if you so find, then you are instructed that such facts (if you believe them to be true) are sufficient circumstantial evidence to warrant a finding by you that the defendants were negligent, and you may so find, unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to the defendants’ negligence * *

We will first consider plaintiff’s contention that the burden of proof instruction (No. 11) was prejudicially erroneous because of the following portion thereof: “If you find and believe from all the credible evidence in the case that the defendants were not negligent, you should not find that they were negligent from only the fact of the occurrence shown by the plaintiff’s evidence.” While the quoted language complained of does not contain the word “mere” the parties have assumed that the instruction under consideration comes within the broad classification of “mere fact” instructions hereinafter discussed.

It is obvious that all so-called “mere fact” instructions cannot be included in one general classification and approved or condemned as such. Whether the giving of such an instruction constitutes reversible error depends upon the wording thereof and the facts of the particular case. Most of said instructions discussed in the cases we have considered contain a sentence such as the one in Grote v. Reed, Mo.Sup., 345 S.W.2d 96, 97, i. e., The court instructs the jury that the mere fact of itself that plaintiff was injured and has brought suit claiming defendant was negligent is no evidence whatever that the defendant was in fact negligent.’ ” We reviewed many of those cases in Grote and emphasized the importance of the precise words used and facts involved in determining whether such instructions were prejudicially erroneous. We think the instruction in the case at bar is clearly distinguishable from the “no evidence whatever” type of instruction involved in Grote and the cases discussed therein.

In Goldblatt v. St. Louis Public Service Co., Mo.Sup., 351 S.W.2d 773, 774, an instruction was held not to be reversibly erroneous which contained the following language: ‘“You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence, if you find and believe from all the evidence in the case that the defendant was not negligent, and if you do find and believe from all the evidence in the case that the defendant was not negligent, then your verdict should be in favor of the defendant.’ ” Although we think the instruction before us is preferable to that in Gold-blatt it is obvious that they are somewhat similar.

While plaintiff’s brief does not discuss the Goldblatt case we infer that he contends that that case, and all other res ipsa cases in which “mere fact” instructions have been held not to constitute prejudicial error, were prospectively overruled in Wise v. St. Louis Public Service Co., Mo.Sup., 357 S.W.2d 902. It is true that the author of the principal opinion in Wise attempted to declare a judicial policy in this state to the effect that so-called “mere fact” instructions should be eliminated from our practice. However, that opinion had only the full concurrence of its author and two other judges — the other four judges concurring only in the result. It obviously was not authoritative except as to the result reached therein and could not have overruled any prior decisions. It should also be noted that the Wise opinion concedes that when the instruction in Goldblatt is considered in its entirety it is not a misstatement of law.

We are unable to find anything that could be considered prejudicial in the portion of Instruction 11 of which plaintiff complains. It is not inconsistent with plaintiff’s submission. It will be noted that Instruction 5 hypothesized certain facts and directed that “such facts (if you believe them to be true) are sufficient circumstantial evidence to warrant a finding by you that the defendants were negligent, and you may so find, unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to the defendants’ negligence.” Number 11, on the other hand, merely tells the jury that if it finds from all the evidence that defendants were not negligent it should not find that they were negligent “from only the fact of the occurrence.” That is not a misstatement of law and should not have been confusing to the jury. Upon the authority of Goldblatt (and considering the more desirable wording of the instant instruction) we rule that the giving of Instruction 11 was not error.

The remaining contention is that the court erred in giving Instruction 12 which directed a verdict for defendants upon a finding of contributory negligence based upon the following hypothesized facts: “ * * * and if you further find that he took a position in close proximity to the path being followed by the carts as they were being drawn by the tractor, if you so find, and if you further find that plaintiff, Roy C. Musgraves, knew or should have known that his position was in such close proximity to the path being followed by the tractor and carts that he was likely to be struck by the carts, if you so find, and if you further find that plaintiff, Roy C. Mus-graves, could and should have moved to a point of safety but failed so to do

Plaintiff says the instruction hypothesized and assumed facts not in evidence. We do not agree. The facts stated were all supported by the testimony. Mr. Van Winkle testified that the rear cart moved from one to one and one-half feet “out of track.” Witness Thomas stated that the cart probably slid a foot out of line. It is admitted that the cart struck plaintiff. It would therefore appear that the jury reasonably could have found that plaintiff was standing one foot from the line of carts. Plaintiff had seen the carts “whip” on other occasions. The jury therefore could reasonably have found that he should have known that a position one foot from the carts was in such close proximity that he was likely to be struck by the rear cart and that he could have stepped back to a place of safety. While there may not have been any specific testimony that plaintiff could haVe stepped back it does appear that he was in control of his faculties and was watching the process of making the U-turn. We think that was sufficient circumstantial evidence to support such a finding. In that connection it should be noted that Mr. Van Winkle saw the movement of the cart and was able to step to a place of safety.

We rule that the instruction was supported by the evidence and that the court did not err in giving it.

Defendants have briefed the alternative contention that plaintiff did not make a sub-missible case and therefore the judgment should, in any event, be affirmed. Since we have held that the court did not err in giving Instructions 11 and 12, we need not consider the defendants’ alternative contention.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: FINCH, Judge.

license: Public Domain

text:
    Alvie L. BENNETT, Appellant-Respondent, v. Theodore M. KITCHIN, Appellant, and James E. Reum, Respondent.
    No. 50900.
    Supreme Court of Missouri, Division No. 2.
    Feb. 14, 1966.
    Motion for Rehearing or for Transfer to Court En Banc Denied March 14, 1966.

      John C. Milholland, A. J. Anderson, Har-risonville, for appellant Alvie L. Bennett.
    Al Lebrecht, Albert Thomson, Kansas City, for appellant Kitchin, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, of counsel.
    Morrison, Hecker, Cozad & Morrison, Karl F. Schmidt, Byron J. Beck, Kansas City, for respondent, James E. Reum.
   FINCH, Judge.

This personal injury case arose from a two-automobile collision, followed shortly thereafter by the collision of a third automobile with the damaged automobiles and the person of plaintiff, who then was out of his car, standing on the pavement. The two cars involved in the first collision were driven by plaintiff and defendant Kitchin. The third automobile was driven by defendant Reum. The jury returned a verdict for $90,000 in favor of plaintiff and against defendant Kitchin, but found in favor of defendant Reum. Plaintiff appealed from the judgment in favor of Reum, and defendant Kitchin appealed from the $90,000 judgment. The appeals have been consolidated.

The collisions occurred at approximately 10:30 p. m., on April 5, 1963, on Highway M-150 near its intersection with a single track railroad grade crossing and near where Prospect Avenue would intersect M-150 if it were cut through. M-150 at that point runs east and west along the north side of Richards-Gebaur Air Force Base. The pavement was of gravel imbedded asphalt construction with a lane for eastbound traffic and one for westbound traffic, separated by a painted divider strip. Each shoulder was wide enough to permit passage thereon of an automobile driving off of the pavement. The roadway at the scene of the collisions is approximately level and continues to be level to the east to the railroad tracks, a distance of 160 feet, and on to the east of the railroad tracks approximately eight feet, at which point it begins to slope downhill to the east.

Plaintiff was traveling east on M-150 in a 1955 Buick at from 30 to 40 miles per hour. His mother and his wife occupied the front seat with him, and his sister and her husband were in the rear seat. According to evidence on behalf of plaintiff, a westbound Plymouth driven by defendant Kitchin swerved left into the eastbound lane when 50 to 60 feet away from the plaintiff’s car. Plaintiff then swerved to the left and applied his brakes and was almost stopped when the right front of Kitchin’s car struck the right rear of the plaintiff’s Buick. Defendant Kitchin testified that it was plaintiff who first turned left when five or six car lengths away and that he (Kitchin) then turned to his left to try to avoid plaintiff. Both vehicles stopped at the approximate point of impact. The Buick was straddling-the center line with the right rear fender still south of the center line and the remainder of the car to the north, headed in a northeasterly direction. The Plymouth was headed southwest. It was about one-half south of the center line and one-half north thereof. The cars were almost parallel, with the Plymouth to the east of the Buick. According to plaintiff and others in his car, the front headlights on the Buick were left shining after the accident and the dome light of the Buick was turned on and left on. The lights on the Plymouth were not burning after the collision.

Plaintiff and other occupants of his car who testified stated that immediately after the first collision, plaintiff’s sister began to scream and carry on. Plaintiff turned on the dome light of his car and checked her. He also could see Kitchin slumped over the steering wheel of his Plymouth, so he got out of the Buick and went around to the driver’s seat of the Plymouth and helped Kitchin out of the car. Plaintiff could see that Kitchin apparently was not hurt, but did ascertain that he was drunk. (Evidence was received that Kitchin had been drinking earlier in the evening and that he voluntarily took a breatholizer test at 12:53 a. m., over two hours after the collision, and it disclosed blood alcohol of .19 per cent.) Plaintiff then left Kitchin standing there and started back around the back of the Plymouth to go to the Buick and check further on the occupants of his own car. As he was going around the Plymouth, plaintiff heard its motor start up and the Plymouth started to back up. Plaintiff jumped out of the way and called to Kitchin, who was back in the driver’s seat, to ask what he was doing. Kitchin replied that he was going to “get the hell out of there before the police got there.” Plaintiff then reached in the driver’s window and turned off the ignition of the Plymouth. He remembered nothing after that. Plaintiff was corroborated in this version by other occupants of his car, but defendant Kitchin testified that plaintiff pulled him out of the Plymouth, took off his glasses, and punched him in the nose. He said he could not remember much about what happened after that. He thought he had walked over to the side of the road, but said he could have gotten back in his car. He said he did not try to drive away. Immediately, then, the second crash came. Kitchin testified that he did not know where plaintiff Bennett was at the time of the second collision.

While plaintiff was at the driver’s door of the Plymouth turning off the ignition, a westbound Chevrolet driven by defendant Reum hit plaintiff and the parked Plymouth (causing it, in turn, to hit the Buick). Plaintiff at the time was in about the middle of the eastbound lane. He was pinned between the front of the Chevrolet and the left side of the Plymouth. He suffered very severe injuries, the extent of which is not in issue on this appeal.

Plaintiff and the occupants of his car fixed the elapsed time between the first and second collisions at from one and one-half to two and one-half minutes.

Defendant Reum was a soldier on duty at the Richards-Gebaur Air Force Base. He had driven from.the Air Force Base onto M-1S0 and was driving west. Reum came up the grade toward the intersecting railroad tracks traveling, he thought, at somewhere between 40 and 50 miles per hour. He testified that as he approached the railroad he met four cars, the lights of which blinded him to a certain extent. He denied seeing lights on either the wrecked Buick or Plymouth, and testified that just when he was astraddle the intersecting railroad tracks his lights first picked up a reflection from the rear end of a dark automobile in the westbound lane. He saw no car coming from the west and he stated that when he saw the car in the westbound lane he immediately applied his brakes to slow his car and swerved it to the left to try to go around. He did not see the other car nor did he see plaintiff until he had turned left, at which time he did not know how far away he was. He applied his brakes in an emergency fashion and tried to swerve further to the left but could not do so. He did not sound his horn. He testified that when he first saw plaintiff he appeared to be reaching inside the left front door of the Plymouth but then straightened up, looked around and put his hands on top of the Plymouth.

There was some testimony, based on skid marks, indicating a greater speed by Reum than that which he estimated. There also was other testimony which we need not detail for purposes of this appeal except as specific reference thereto may be made subsequently in this opinion as needed.

Plaintiff’s petition alleged negligence against the defendant Kitchin in the operation of his vehicle leading to the first collision, and also alleged negligence on the part of Kitchin in driving his car while intoxicated and in attempting to drive his automobile from the scene of the collision without identifying himself to plaintiff or the passengers in the Buick, although there had been injury and damage in connection with that collision.

On appeal, defendant Kitchin seeks to raise four questions as a basis for either reversal or remand for new trial.

First, Kitchin claims that plaintiff was guilty of contributory negligence as a matter of law. The point is stated in an abstract fashion without giving any reasons why the plaintiff was guilty of contributory negligence. This is not in conformity with our Rule 83.05(e) and preserves nothing for appellate review. Emert v. St. Louis Public Service Co., Mo., 370 S.W.2d 366, 374, and Domijan v. Harp, Mo., 340 S.W.2d 728, 731. However, the same question is raised sufficiently in defendant Reum’s brief and we proceed to consider the question.

In examining this question we must keep in mind, as stated in Kickham v. Carter, Mo., 314 S.W.2d 902, 908, “ * * * that plaintiff’s negligence is a jury question, unless it may be said from all the evidence and the reasonable inferences therefrom, viewed in the light most favorable to plaintiff, the only reasonable conclusion is that plaintiff was negligent and that his negligence was a proximate cause of his injury.”

The evidence (and reasonable inferences therefrom) most favorable to plaintiff was as follows: After the collision of the first two cars plaintiff’s sister was screaming, and plaintiff also could see that Kitchin, the driver of the other car, was slumped over his steering wheel. Plaintiff turned on the dome light of his car to check his sister. He then got out of his car and went around to the driver’s side of the Kitchin car to check on Kitchin. Plaintiff helped him out and to his feet and ascertained his apparent condition. He then started back to check further on his wife and sister, got around back of Kitchin’s automobile and then jumped to get out of the way when the latter car was started and began to back up. Kitch-in stated he was going to leave before the police got there, and plaintiff then reached in and turned off his ignition to keep him from leaving, following which he was hit by the Reum car. All of this activity in checking on the condition of people apparently injured in the wreck covered a span of only one and one-half to two and one-half minutes. The highway was level from the place the cars were wrecked to a point at least eight feet east of the railroad tracks. The Buick headlights were on and were pointed to the northeast, giving notice of the presence of the car to traffic approaching from the east. The evidence indicated that on a line of sight basis, it was possible to see the wrecked cars from a point at least 50 feet east of the railroad and perhaps a point as far as 122 feet east of the railroad. While headlights on a car approaching from the east would shine uphill as the car approached the railroad tracks, this would not prevent the driver from seeing the Buick headlights. Defendant Reum himself testified that he did not know why he did not see the wrecked cars when he was east of the railroad tracks and as he came up to the tracks. In addition, he testified that the lights on his car were in good condition. He stated that they were on low beam, which causes the lights to shine down at the road and to the right more than when on high beam, but still it might be inferred that those lights would have permitted him to see the wrecked cars occupying both lanes and that he had room to pass on the north shoulder without hitting either plaintiff or the wrecked cars. As a matter of fact, this is where cars did pass subsequent to the second collision. Westbound traffic reasonably could have been expected to be on the north side of the road, and plaintiff, at the time he was hit, was in the middle of the south lane which was for eastbound traffic.

We are of the opinion that the evidence, viewed most favorably to plaintiff, did not show him to be guilty of contributor}' negligence as a matter of law. Defendant Reum in his brief states that “under the. law of Missouri a plaintiff who is injured by reason of voluntarily and unnecessarily placing himself in a dangerous situation, fully knowing and realizing the danger and the hazard to which he is exposing himself, is guilty of contributory negligence as a matter of law.” Numerous Missouri cases are cited, but we consider them to be distinguishable on the facts. For example, in Dempsey v. Horton, Mo., 337 Mo. 379, 84 S.W.2d 621, plaintiff’s car had a broken axle and was parked with a part of the left side of the car on the pavement and the balance on the dirt shoulder. Plaintiff stood at the left rear fender for about five minutes waiting for his son to bring a jack. This court said 84 S.W.2d l. c. 626: “In the instant case plaintiff voluntarily stood on a paved public highway, where he had reason to anticipate automobile traffic, for several minutes without taking the precaution to look for the approach of that traffic from which danger was to be expected. This, without any particular purpose for so doing.” Plaintiff there was held to have been guilty of contributory negligence as a matter of law. In contrast, plaintiff here was confronted with a collision in which people in both cars appeared to be hurt. He left on his lights, turned on the dome light, and for one and one-half to two and one-half minutes he busied himself with checking on the people who appeared to have been injured. This is unlike plaintiff in the Dempsey case, who had no reason for just standing there. In addition, Dempsey was in the lane in which defendant’s car approached him from the rear, whereas plaintiff in this case was in the south or eastbound lane and was hit by a westbound car which swerved over into the eastbound lane. Smith v. Ozark Water Mills Co., 215 Mo.App. 129, 238 S.W. 573, another case cited, involved the question of whether one who rode on the running board of the car was guilty of contributory negligence. State ex rel. Schaffer v. Allen, Mo., 253 S.W. 768, involved a man who was on a sidewalk on the side of a bridge and stepped through a trestle onto the vehicular roadway where his view of approaching vehicles was obscured by smoke. White v. Barkovitz, Mo.App., 254 S.W.2d 291, involved a man who sat down on the curb in front of a parked car and went to sleep with his feet in the street where the automobile necessarily would strike him when it started up. Hobbs v. Renick, C.C.A. 8, 304 F.2d 856, involved a woman who was trying, at night, to flag down automobiles and obtain a ride. She stood in .the south lane (for eastbound traffic) and tried to stop a car which was westbound in the north lane, but when it did not stop and a second car came, she went on into the north lane and remained there until the westbound car was about 100 feet away going 65 miles per hour, at which time she turned and ran hack to the south half of the highway onto which the car had swerved in an attempt to go around her. The court held that she was contributorily negligent as a matter of law, but went on to say l.c. 860: “We make no ruling that the. plaintiff’s being in the middle of the south lane as she attempted to flag Steelman down in the north lane was negligence on her part.” The difference in factual situations from the cited cases and the case at bar seems obvious. The instant case simply does not fall within the doctrine announced in those cases. Plaintiff herein did not voluntarily or unnecessarily place himself in a dangerous situation, and in our judgment he was not guilty of contributory negligence as a matter of law. We find nothing in the other cases cited in the briefs which causes us to reach a contrary conclusion. We hold that the issue of contributory negligence on the part of plaintiff Bennett was for the jury.

Defendant Kitchin’s second point is that “the lower court erred in failing to enter judgment for defendant Kitchin since the plaintiff did not plead or prove a cause of action against defendant Kitchin based upon the second collision.” This assignment also is abstract and is not sufficient to state in what particulars the pleading and proof are claimed to be deficient. An examination of the argument which follows discloses that the point now being asserted is that plaintiff seeks recovery on the theory that a civil cause of action is not created by § 564.450 and that plaintiff seeks recovery on the hypothesis that such a civil cause of action does exist. Defendant Kitchin cites authorities such as Bailey v. Canadian Shield General Insurance Co., Mo., 380 S.W.2d 378, to support the proposition that a criminal statute, imposing penalties for violation thereof, creates no civil liability in the absence of something to show legislative intent to create such liability. The difficulty with Kitchin’s position is that this is a point not presented in the trial court but now raised for the first time on appeal. A careful examination of Kitchin’s motion for new trial so discloses. It is elementary that we will not consider matters raised for the first time on appeal and will not convict the trial court of error on something on which it was not accorded an opportunity to rule. Actually, we also should point out that plaintiff claims that defendant misconceives what was done and that the case was not submitted on the theory that violation of § 564.450 was negligence per se. Rather, he submitted the violation of the provisions of these two statutes (§§ 564.440 and 564.450) as conjunctive parts of one course of conduct which the jury could find to be negligent and for which recovery could be permitted if the jury found that such negligence caused or contributed to cause plaintiff to be struck and injured by defendant Reum. We do not attempt to resolve this difference or pass on the question. Defendant Kitchin’s point number two presents nothing for us to review.

The third point raised by defendant Kitchin is that a mistrial should have been declared for alleged “misconduct at the trial of plaintiff and his wife in showing the claimed forlorn condition of plaintiff and his wife.” The incident to which defendant refers occurred when plaintiff’s wife was being questioned on direct examination and was as follows:

“Q. How frequently did you visit your husband in Research Hospital? A. Well, the first month I would say that I was there every day some time or other during the day. I had to go to work to take care of the boys and myself and then whenever I got a day off—

“MR. SCHMIDT: I object to that as not responsive to the question.

“MR. BENNETT: She had to go to work to feed her kids.

“MR. SCHMIDT: (Out of the hearing of the jury.) Now at this time on behalf of Defendant Reum we move for a mistrial and ask that this jury be discharged on the grounds that Mr. Bennett within the hearing of this jury has just said that she had to go to work to feed her kids; that is highly prejudicial and we move that the jury be discharged.

“MR. HENRY: Same motion on behalf of Defendant Kitchin.

“MR. MILHOLLAND: I don’t think this is prejudicial — this man had that responsibility—

“MR. SCHMIDT: This answer was not responsive to the question, whether or not she went to work was not responsive and the remark is highly prejudicial, he was not on the witness stand and was sitting at the counsel table and there was no call for this remark and I ask that the jury be discharged, Your Honor.

“MR. HENRY: Same motion on behalf of Defendant Kitchin.

“THE COURT: At this time both defendants’ motions to discharge the jury will be overruled. I am going to instruct the jury to disregard the statement made by plaintiff.

“MR. MILHOLLAND: If the Court please. I would like to have a recess. I want to instruct my client. I want to avoid anything like this.

“(Whereupon a recess was called by the Court after which came the following:)

“THE COURT: Members of the jury: At this time I am going to instruct you to completely disregard the statement made by the plaintiff in this case. It should have no part in your deliberations in considering the merits of this case.

“MR. MILHOLLAND: Let the record show that plaintiff withdraws the last answer of the witness on the stand.

“THE COURT: Very well.”

Kitchin’s motion for new trial raised no question with respect to the answer given by plaintiff’s wife. The motion for new trial did assert error in the spontaneous statement by plaintiff which is set out above. The trial court instructed the jury to disregard the statement but declined to discharge the jury. We cannot say that this was an abuse of discretion. Furthermore, no prejudice therefrom is shown. The statement obviously had no bearing on the issue of liability. It was defendant Reum’s attorney who made the objection which prompted the spontaneous remark by plaintiff, but the jury found in favor of the defendant Reum. The effect of the remark, if any, would be on the amount of the verdict, but defendant Kitchin, on this appeal, makes no complaint that the verdict is excessive or the result of passion or prejudice. He asks for no remittitur. Accordingly, there is no showing that he was prejudiced by the remark, and this contention is overruled.

Finally, defendant Kitchin complains because Instruction No. 1 “is erroneous as a matter of law and comments on the evidence”. This assignment wholly fails to comply with Rule 83.05(e) and presents nothing for review. Haley v. Edwards, Mo., 276 S.W.2d 153, 162; Wilcox v. Swenson, Mo., 324 S.W.2d 664; Anderson v. Welty, Mo.App., 334 S.W.2d 132, 139.

Plaintiff’s petition alleged both primary and humanitarian negligence against defendant Reum. The case was submitted to the jury on alleged primary negligence of excessive speed in excess of 45 miles per hour, and turning his automobile across the center line into the easthound lane. It was submitted under the humanitarian doctrine for failure to warn.

On appeal, plaintiff complains of two instructions given by Reum, viz., Nos. 15 and 16. No. 15 was a sudden emergency instruction given in connection with the primary negligence submission, and No. 16 was a converse humanitarian instruction.

Instruction No. 15 was as follows:

“The Court instructs the jury that if you find and believe from the evidence that at the time and place referred to in the evidence, defendant James E. Reum was driving and operating his automobile westwardly over Highway #150 in Jackson County, Missouri, and was at all times referred to in the evidence exercising the highest degree of care in the operation of said automobile, and if you find and believe from the evidence that when said automobile reached a point where railroad tracks cross Highway 150 at approximately Highway 150 and Prospect, the westbound lane and part of the easibound lane of said highway at a point approximately 160 feet to the west of said railroad tracks were blocked by an automobile operated by defendant Kitchin and an automobile operated by plaintiff Bennett, which had collided on said highway, creating a hazard to westbound vehicles, if so, and if you find that defendant was thereby confronted with a sudden emergency, with no time to deliberate, if you so find, and that no act of defendant Reum contributed to cause said emergency, if so, then the Court instructs you that defendan. James Reum was only required to exercise that degree of care that a very careful and prudent person would exercise under the same or similar circumstances, and if you find he did exercise such degree of care in turning his automobile to the left of the center of Highway #150 and applying his brakes, under the circumstances aforesaid, in order to avoid striking the aformentioned automobiles and plaintiff, if you so find the facts to be, and if you further find and believe from the evidence that as a result of defendant James Reum applying his brakes, he locked the wheels of his automobile and was thereafter unable to turn it to the left or right, and if you find that after defendant James Reum locked the wheels of his automobile, the same was caused to collide with plaintiff, who was then standing on the paved portion of Highway #150 immediately to the east of the vehicle operated by defendant Kitchin, if you so find, and that defendant James Reum did not collide with plaintiff as a result of negligence which is submitted to you in Instruction No. 2, then you are instructed that plaintiff herein is not entitled to recover from defendant James E. Reum, unless you find for plaintiff under Instruction No. 3.”

Plaintiff first says that a sudden emergency instruction should not be given in any humanitarian submission case. If this were a case submitted only on the humanitarian doctrine, as in Teague v. Plaza Express Co., 354 Mo. 582, 190 S.W.2d 254, this contention would be correct, for the sudden emergency doctrine has no application to a humanitarian submission. Plaintiff cites and relies upon the case of Green v. Guynes, 361 Mo. 606, 235 S.W.2d 298, which he says involved both primary and humanitarian submissions. It does hold that the refusal by the trial court to give a sudden emergency instruction was not error, and contains some general language, based on Teague v. Plaza Express Co., supra, that a sudden emergency instruction should not be given in a humanitarian case. An examination of the record in that case discloses that the instruction which was tendered was not limited specifically to the primary negligence submission, but was general in its language and could be applied by the jury to the humanitarian submission as well as that based on primary negligence. It clearly was erroneous and was properly refused, and the language in the opinion must be viewed in the light of the instruction involved. In contrast, it will be observed that Instruction No. 15, of which plaintiff complains, specifically limited its application to Instruction No. 2, which was the primary negligence submission against defendant Reum. It told the jury that under such circumstances plaintiff could not recover “unless you find for plaintiff under Instruction No. 3,” which was the humanitarian submission. This was proper. The case of Olsten v. Susman, Mo., 391 S.W.2d 331, dealt with a case wherein plaintiff submitted on both primary and humanitarian negligence and defendant submitted an instruction on contributory negligence. On appeal, plaintiff contended that this wrongfully injected primary negligence into plaintiff’s humanitarian rule submission. In discussing this question the court said, l.c. 333 : “By submitting both humanitarian and primary negligence in a case plaintiff cannot deprive defendant of the defense of contributory negligence as to the primary submission. Therefore, the determinative question in this case is whether Instruction No. 3 was worded so as to cause a jury of reasonable intelligence and understanding to believe that the contributory negligence therein submitted could constitute a defense to the humanitarian negligence submitted by Instruction No. 5.” The court held that the contributory negligence instruction was so worded that the jury would limit it to the primary negligence submission and was properly given. The reasoning in that case is applicable here. At the time this case was tried a defendant was entitled to give a proper sudden emergency instruction in response to a primary negligence submission if the evidence justified it. He could not be deprived of that right by the action of plaintiff in submitting on humanitarian as well as primary negligence so long as the tendered sudden emergency instruction clearly limited its application to the primary negligence submission and excepted the humanitarian submission. Instruction No. 15 did that. Plaintiff’s first objection to the instruction is overruled.

Plaintiff’s second attack on Instruction No. 15 is that the evidence most favorable to Reum failed to show that the hypothesized sudden emergency arose without fault on the part of Reum. This contention is based on the premise that under the evidence Reum was guilty of negligence as a matter of law in exceeding the speed limit, that such negligence constituted the only moving element of the emergency since the wrecked vehicles and plaintiff were motionless and that the emergency did not arise without fault on the part of the defendant Reum.

This contention of plaintiff necessitates some additional examination of the pleadings and evidence. It is plaintiff’s contention that the collision occurred within the city limits of Kansas City, that the speed limit of 45 miles per hour provided by § 304.010 was applicable, and that defendant Reum’s own testimony established as a matter of law that he was exceeding that speed limit. The record does not substantiate some of these premises, as we shall demonstrate. In paragraph 1 of plaintiff’s first amended petition it was alleged that plaintiff was driving on a “public highway and thoroughfare, Missouri Highway No. 150 at or near a point where said highway would be intersected by an extension of Prospect Avenue, a public street in Kansas City, Missouri.” This allegation was admitted in Reum’s answer, and plaintiff contends that this established that the point where the accident occurred was in Kansas City. We do not so interpret it. The only reference in that allegation to Kansas City is that Prospect Avenue is a street in Kansas City. That is not equivalent to saying that an extension thereof to a point where it would intersect Highway No. 150 would also be in Kansas City. Plaintiff also would have us take judicial notice of the boundaries of Kansas City and in that manner establish that this was within the city limits. We do not take judicial notice of whether streets are within the boundaries of cities. Woodson v. Metropolitan St. Ry. Co., 224 Mo. 685, 123 S.W. 820, 30 L.R.A.,N.S., 931; McIlvain v. Kavorinos, 361 Mo. 749, 236 S.W.2d 322. It would not avail plaintiff of anything in this case if we did because § 304.010(3) provides that “In any city, town or village where the speed limit is not set by local authority, no vehicle shall be operated at a speed in excess of forty-five miles per hour.” Plaintiff offered no proof as to whether Kansas City has set a speed limit for this area, assuming it is within the city limits, and plaintiff would have the obligation so to do if he would avail himself of the speed limit specified in § 304.010(3). Finally, in this connection, the evidence as to Reum’s speed would have been for the jury and did not conclusively establish that he was exceeding 45 miles per hour. Reum testified with respect to his speed, “I don’t think it would have been over 40 or 50; I am pretty sure it was about 45 miles per hour,” and he also said, on cross-examination, that he could have been going faster than 45 and “I am not going to say I wasn’t.” This would not amount to an admission that he was going in excess of 45 miles per hour, so as to make him guilty of negligence per se, but rather it made the matter a jury question. Accordingly, this contention of plaintiff with respect to Instruction No. 15 is overruled.

Plaintiff’s next attack on Instruction No. 15 is two-fold. First, he claims it ignored discoverable danger and hypothesized instead the time and place where "Reum saw the danger (where the railroad tracks crossed Highway No. 150), thereby conflicting with Instruction No. 3 which submitted to the jury the question of when Reum saw or in the exercise of the highest degree of care could have seen plaintiff in a position of imminent peril. Secondly, plaintiff says that the instruction failed to hypothesize Reum’s speed or any fact regarding his ability to have discovered the danger, thereby giving the jury a roving commission. These contentions will be considered together.

Instruction No. 15 related solely to the submission by plaintiff of primary negligence under Instruction No. 2. On examination, we find that in Instruction No. 2 plaintiff used this language: “* * * and if you further find that at said place and time defendant Reum drove his Chevrolet automobile in a westerly direction across the railroad tracks on said Highway 150 at a speed in excess of 45 miles per hour and turned his automobile across the centerline of said highway to the south and into the eastbound lane and was thereby negligent.” (Emphasis supplied.) Thus, plaintiff’s Instruction No. 2 hypothesized for the jury on the basis of what defendant did as he drove across the railroad tracks, not on the basis of what he might have done east of the tracks based on discoverable peril. Instruction No. 15 was in response to this submission in Instruction No. 2, and its applicability was specifically so limited in the last part of the instruction. It hypothesized for the. jury whether defendant Reum was confronted with an emergency at the time he was charged under Instruction No. 2 with the commission of negligent acts for which he should be held liable. An emergency instruction need hypothesize conduct of defendant prior to his coming into the position where the hypothesized emergency arose only in order that it may be found that the emergency was not caused by his own tortious conduct. Jones v. Hughey, Mo., 283 S.W.2d 550, 553. Instruction No. 15 did this when it required the jury to find that defendant Reum “was at all times referred to in the evidence exercising the highest degree of care in the operation of said automobile.” Plaintiff complains that this hypothesized generally rather than hypothesizing facts, but this court has held that freedom of defendant from any negligence in bringing about an emergency may be hypothesized generally. Jones v. Hugh-ey, supra. A rather similar instruction was specifically approved by this court in the Jones case. Instruction No. 15 actually goes further than the instruction in the Jones case in that it requires the jury to find “that no act of defendant Reum contributed to cause said emergency,” These hypothe-sizations were sufficient to require a finding by the jury that the defendant Reum did not cause or contribute to cause the emergency. This would include the element of discoverability.

Plaintiff also claims that Instruction No. 15 was erroneous because it used the phrase “no act” rather than “no negligence”. In substance, he says that “act” refers to an affirmative thing and hence is different from “negligence” which includes both act and omission. As was stated in Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541, 545, “ ‘The test of the correctness of an instruction is how the instruction will naturally be understood by the average men who compose our juries on whose judgment of the facts the court must act. * * ⅜ ’” In describing the sudden emergency doctrine, this court said in Rohde v. St. Louis Public Service Co., Mo., 249 S.W.2d 417, 420, “ * * * An integral part of the doctrine, in the sense that it is prerequisite to its application, is that the emergency shall not have been caused or contributed to by the tortious conduct of the one asserting the emergency * * (Emphasis supplied.) We believe a jury would consider that the word “act” as used would be syn~ ■onymous with “conduct” or “negligence” and would include such things as failure to keep a lookout. To hold the instruction bad for use of the word “act” instead of the word “conduct” or the word “negligence” would be unduly technical. If the plaintiff thought the word required further definition, he could have tendered an instruction thereon.

Finally, plaintiff seems to complain that Instruction No. IS hypothesized that the highway was blocked by the Kitchin automobile and the Bennett automobile, whereas Reum had testified to seeing only the Kitchin car at the time he swerved. This, says plaintiff, hypothesized facts not supported by the evidence. Presumably, plaintiff would contend that the instruction should have left out any reference to the plaintiff’s Buick automobile. The facts were that the highway was blocked by both automobiles which were more or less side by side in the middle of the highway. We cannot see where any prejudice would have resulted to plaintiff by the fact that the instruction hypothesized the presence of both automobiles rather than the one, and plaintiff’s brief does not undertake to demonstrate any error. In this connection, plaintiff also complains that 'later in the instruction defendant Reum hypothesized his turn to the left and application of his brakes in order to avoid striking the aforesaid mentioned automobiles and plaintiff. It is true that Reum testified that he did not see plaintiff until he had swerved to the left, but he testified that after he saw plaintiff he attempted to turn further to the left and applied his brakes in an emergency fashion in an attempt to avoid hitting plaintiff, but his car would not respond enough to avoid the collision. We think there was ample evidence to justify the instruction. Plaintiff seems to contend that the instruction was confusing in that he says it appears to say that Reum entered the south lane where he struck plaintiff “in order to avoid striking * * * plaintiff.” We do not believe that the jury would have so read it or would have been confused or misled.

We hold that Instruction No. 15 was a proper instruction.

Plaintiff also complains of Instruction No. 16, a converse humanitarian instruction, on the basis that it omitted the issue of discoverable peril. In order to consider this question, it is necessary to set out verbatim not only Instruction 16 but also Instruction No. 3 which it undertook to converse. They are as follows.

INSTRUCTION NO. 3

“The Court instructs the jury that if you find and believe from the evidence that on April 5, 1963, on Highway 150 at the time and place mentioned in evidence, plaintiff, while standing on the south side of the center line of said highway at the driver’s door of the Plymouth automobile mentioned in evidence, became and was in a position of imminent peril of being struck and injured by the Chevrolet automobile being operated by defendant, James E. Reum, and that defendant, James E. Reum, saw or by the exercise of the highest degree of care could have seen plaintiff in such position of imminent peril, in time thereafter, with the means and appliances at hand and with reasonable safety to himself and others, to have sounded his horn as a warning to plaintiff of the dangerous proximity of said Chevrolet automobile and could thereby have prevented the collision of said Chevrolet with the person of plaintiff, as mentioned and described in evidence, and that defendant Reum failed to so warn plaintiff and that in so failing under the aforesaid circumstances he failed to exercise the highest degree of care and was thereby negligent, and that said negligence directly caused said Chevrolet to strike and injure plaintiff or that said negligence directly combined and concurred in part with the conduct of others to cause said Chevrolet to strike and injure plaintiff, then your verdict shall be for the plaintiff, Alvie L. Bennett, and against defendant, James E. Reum.”

INSTRUCTION NO. 16

“The Court instructs the jury that if you find and believe from the evidence that at the time plaintiff entered a position of imminent peril as submitted to you in Instruction No. 3, defendant Reum could not have, by the exercise of the highest degree of care, in the time and distance he then had, sounded his horn as a warning to plaintiff and thereby have prevented the collision of said Chevrolet with the person of plaintiff, then you cannot return a verdict for plaintiff under Instruction No. 3 and your verdict must be for Defendant Reum unless you find for plaintiff under Instruction No. 2.”

Plaintiff asserts that Instruction No. 3 submitted the issue of discoverable peril, but that Instruction No. 16 omitted it. We do not agree. Instruction No. 16, in substance, says to the jury: If you find that “at the time plaintiff entered a position of imminent peril as submitted, to you in Instruction No. 3.” (Emphasis supplied.) The instruction does not attempt to tell the jury when that was. It uses as a standard the instruction drafted and submitted by plaintiff which was No. 3. That was the time to be used by the jury in the hypothesization submitted. The instruction tells the jury to determine as of that time whether Reum could have avoided the collision by sounding his horn. That did not ignore or eliminate the issue of discoverability. See instruction approved in Welch v. McNeely, Mo., 269 S.W.2d 871, 875. Plaintiff also complains of the insertion of the phrase “in the time and distance he then had”. A reading of the instruction discloses that this did not change the time from which the jury was to judge Reum’s conduct. The instruction’s meaning would be unchanged if that phrase were eliminated. Its inclusion did not constitute reversible error.

The judgment as entered by the trial court is affirmed.

All of the Judges concur.

      . All references to Rules are to Vernon’s Annotated Missouri Rules.

      . All references to statutes are to RSMo 1959 and Y.A.M.S., unless otherwise indicated.


author: WELBORN, Commissioner.

text:
    Irma E. SCHNEIDER, Appellant, v. Alphonse DeMERVILLE, Ella DeMerville, Charles Schmid and Robert C. Lister, Co-Executors of the Estate of Alphonse DeMerville, and Ella DeMerville, Charles Schmid and Robert C. Lister, Trustees Under the Will of Alphonse DeMerville, Respondents.
    No. 51243.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied and Opinion Modified on Court’s Own Motion March 14, 1966.

      Markus & Maue, Ralph L. Markus, Edgar J. McLaughlin, Lewis, Rice, Tucker, Allen & Chubb, J. L. Pierson, James A. Singer, Lovell W. George, Clayton, for appellant.
    Stewart D. Flanagan, St. Louis, for respondents.
   WELBORN, Commissioner.

Plaintiff-appellant Irma E. Schneider brought suit in the St. Louis County Circuit Court against Alphonse DeMerville for damages for fraud in the amount of $350,-000, or in the alternative to compel the return to plaintiff of property acquired by DeMerville upon foreclosures of deeds of trust made by plaintiff. Upon the death of DeMerville, the coexecutors of his estate, Charles Schmid and Robert C. Lister, and the devisees under DeMerville’s will of the property involved, his widow, Ella DeMer-ville, and trustees of a trust under the will were substituted as parties defendant. The lower court upon a trial found the issues for defendants and plaintiff appealed.

This litigation had its origin in an ill-fated venture of plaintiff in a real estate purchase. Plaintiff is a single woman with an eighth grade education and, in 1943, only minor experience in real estate matters. In March or April, 1943, plaintiff became interested in the possibility of purchasing at a partition sale four tracts of land in south St. Louis County, which had belonged to her grandmother. She discussed her idea with Mr. George Hunsche of Title Insurance Corporation of St. Louis. Hunsche suggested that she might obtain financing through DeMerville who operated a music store and, as something of a sideline, dealt extensively in lending money on security of deeds of trust. Plaintiff knew DeMerville slightly from having been in his music store. Plaintiff and DeMerville went out and examined the land which was in the vicinity of Telegraph Road. According to plaintiff she told DeMerville that she had plans to subdivide the property, along with other which she might purchase from an aunt. She told DeMerville that she planned to slice off 100' lots on one tract and sell them. DeMerville told her that this was a good idea and if she worked hard she could make “some real money.” He told plaintiff that he would lend $25,000 on the tracts.

On June 26,1943, DeMerville addressed to plaintiff and her father a loan commitment in which he agreed, for a 1% commission, to cause $20,000 to be deposited with the Title Insurance Corporation to be disbursed upon security of deeds of trust to be executed by plaintiff on two of the tracts of land. One tract of 18.412 acres on Telegraph Road (referred to herein as “Telegraph Road tract”) was to be considered $s security for a maximum of $12,000. The other, 38.536 acres on Cliff Cave Road (referred to herein as “Cliff Cave Road tract”), was to be considered as security for a maximum of $8,000. Buttressed by this financing arrangement, plaintiff purchased the two tracts plus two others at the partition sale on August 16, 1943, for $29,575.00. Her father, an heir of her grandmother, accepted a portion of the land in payment for his i/s interest. Plaintiff still needed $5,000 more to finance the purchase and, on August 17, 1943, DeMerville addressed to her and her father another loan commitment for $5,000, with a 1% commission to De Merville, to be secured by a deed of trust on a third tract of slightly less than three acres at Yaeger and Telegraph Roads (referred to herein as “Yaeger Road tract”).

On August 23, 1943, plaintiff executed three deeds of trust to Ralph Hunsche as trustee and John M. Dooly as party of the third part (Dooly, an employee of Title Insurance Corporation, was a straw party for DeMerville.) The first, on the Telegraph Road tract, was to secure an indebtedness of $12,000, due in three years with interest at 5%. The second, on the Yaeger Road tract, secured an indebtedness of $5,000 on the same terms. The third, on the Cliff Cave Road tract, secured an indebtedness of $8,000.

Plaintiff obtained options on other tracts in the vicinity with the idea of subdividing, but, with one exception mentioned below, she could not interest purchasers in her projects. She consulted surveyors about laying out 100' lots on the Telegraph Road tract, but, according to plaintiff, DeMer-ville refused to go along with her proposal to sell such lots because there was no partial release clause in the deed of trust.

In 1944, plaintiff borrowed $5,000 more from DeMerville and a new deed of trust on the Cliff Cave Road tract was executed on March 3, 1944, to secure $13,000 indebtedness. She used a portion of this money to survey the Telegraph Road tract and to grade a tract of her father’s adjacent to the Yaeger Road tract. The proceeds of loans from another party on the security of these lots were used to pay interest accruing on the notes of DeMerville. On February 7, 1946, plaintiff borrowed an additional $3500 from DeMerville on the security of a deed of trust on the fourth tract plaintiff had purchased on the partition, the 4.21-acre tract. As with the other loan, the term was three years and the interest 5%.

With no success in her efforts to sell her property to developers, plaintiff became delinquent in payment of the notes secured by the deeds of trust. Apparently plaintiff defaulted on the payment of the final interest note, due August 23, 1946, as well as the principal then due, on the Telegraph Road and Yaeger Road tracts. At that time she had paid a total of $2,125 in interest on these obligations. On the Cliff Cave tract, the default was in the payment of interest due September 3, 1946 and thereafter, as well as the principal due March 3, 1947. No payment, either of interest or principal, was made on the $3,500 indebtedness on the fourth tract.

On August 9, 1948, DeMerville purchased the properties upon sales under the deeds of trust, bidding the property in at public sale for the amount of the principal note secured by each deed of trust.

Within a short time thereafter, plaintiff began to search for persons who she thought were responsible for her misfortune. Apparently, she first directed her attention to the Title Insurance Corporation. On October 11, 1950, she wrote DeMerville, telling him “I got you into this mess and I’m trying every possible way to get you your money. * * *

“Demand your money plus interest and tell em unless I get my land back you’ll join me in the suit I’M about to file.” (“Em” referred to the Title Insurance Corporation. Plaintiff stated that she received $500 in settlement of a claim of unspecified nature which she advanced against Title Insurance Corporation.)

According to plaintiff, she first learned that DeMerville was responsible for her situation at a conference with Mr. George Hunsche on February 21, 1955, when he told her that it was DeMerville who had defrauded her. Plaintiff, pro se, filed an action against DeMerville in the St. Louis County Circuit Court on August 4, 1958 to have the foreclosures declared invalid “and to fix damages.” Upon motion of defendant, plaintiff’s amended petition was dismissed with prejudice on October 8, 1958. Plaintiff filed notice of appeal to the St. Louis Court of Appeals, which transferred the matter to this court. On August 6, 1959, plaintiff dismissed that appeal.

The petition in the present case was filed December 10, 1959. After her original petition had been dismissed without prejudice on August 12, 1960, an amended petition was filed August 26, 1960.

The trial court upheld defendants’ plea of the statute of limitations and also found that plaintiff had failed to prove the.allegations of her petition. Without getting into the question of the statute of limitations, we agree that plaintiff failed to substantiate her charges of fraud and conspiracy.

Our de novo review which reaches this conclusion is not without difficulty. The major one is determining just what is the fraud which plaintiff insists was perpetrated upon her.

By her amended petition, after setting out the transactions involved, plaintiff alleged that she had no knowledge of the real estate business but relied upon the superior skill and knowledge of DeMerville and his agent, George Hunsche; that Hunsche told plaintiff that he was protecting her interests, but that he later told her that he was representing defendant throughout. Her express charge of fraud against defendant and Hunsche was: “Unknown to plaintiff certain liens of water district bonds applicable to said properties as created in Chapter 79 of the Revised Statutes of Missouri for the year 1939 prevented properties lying in the district, as were the properties of plaintiff, from being sold and refinanced until the liens of such special benefit assessment bonds ceased to exist or until legislative action offered relief to persons owning property in said district.” Plaintiff alleged that defendant concealed the fact of his knowledge of said liens for the sole purpose of inducing plaintiff to execute the deeds of trust. The other specification of fraud was that defendant represented to plaintiff that he had obtained title insurance on the property and a certificate of title showing that the property was free and clear of liens; that such representations were false and fraudulent “because of the existence unknown to plaintiff * * * of said liens of water district bonds.”

The petition further alleged that in furtherance of the design of DeMerville and Hunsche to defraud plaintiff, “the partial release clause, which is generally used for large tracts of land, was deliberately eliminated (from the deeds of trust) by the defendant.”

Assuming, without deciding, that the petition contains sufficient allegations of fraud, proof was entirely lacking. Undoubtedly DeMerville was far more experienced than plaintiff in real estate matters. However, plaintiff was not dealing with defendant on a fiduciary basis. Insofar as appears, the dealings were at arm’s length. Although plaintiff was not greatly experienced in real estate matters, she was not entirely inexperienced and she herself conceived the plan which ultimately led to the dealings with DeMerville. There is nothing to support a finding that plaintiff in any manner relied upon or had reason to rely upon De-Merville in the transactions. There was no showing of any awareness on his part of plaintiff’s inexperience or of any fact which imposed a fiduciary duty upon DeMerville. Although plaintiff was referred to DeMer-ville by Hunsche, there is nothing to support plaintiff’s charge against the latter of duplicitous dealings.

More important, evidence to support the basic charge of fraud by concealment of the water district bond liens is entirely lacking. Plaintiff read DeMerville’s deposition in evidence. DeMerville stated that he heard nothing about any liens arising from the formation of the water supply district until plaintiff brought the matter up some five years after the foreclosures. Plaintiff herself testified to nothing relative to the alleged water district lien problem. She stated that she contacted several prospective purchasers, but that, although there was no-price problem, prospective purchasers were not interested. “They didn’t give me any reason. They all seemed to be very evasive. I couldn’t understand what it was, but there was a sales resistance there and I couldn’t put my finger on it.” However, according to plaintiff, one John Gross, a developer whom she contacted, did give her a reason.

Gross testified as witness for plaintiff. He testified that, in 1944, plaintiff tried to sell him the Telegraph Road tract, along with other acreage on which she had or hoped to obtain options. He testified that he was satisfied with her price of $150,000 for around 85 acres. He stated that two considerations caused him not to go through with the purchase. One was : “There were some unknown situations that I don’t remember exactly all the details about, the water district, the water district bonds, against the property.” Gross stated that the water district involved “an unknown amount of taxes” and that there was “an unsettled condition about it at the time * * “[I]t is a very difficult thing to explain, but it was a condition that we didn’t like about the property.” The ordinary tax of the district “wasn’t bad, there was some — it was the involvement we could get into * *

Other than the record of the circuit court of the incorporation of the water supply district in 1941, there w^s no evidence on the subject.

Appellant does not contend that Gross’s testimony established that there were bonds which constituted a lien, for here plaintiff takes the position that the mere creation of the district with power to issue general obligation bonds and to levy taxes upon property within the district for the payment “would be a serious handicap to development and sale of subdivision lots, particularly in the early years.” Even conceding such to be a fact, such fact, taken with the evidence here, falls far short of establishing any fraud on the part of DeMerville by concealment from plaintiff. In the first place, evidence is wholly lacking that De-Merville was aware of any problem by reason of the existence of the water district. Its creation was a matter of public record. Plaintiff was chargeable with knowledge of its creation. There is no basis whatsoever for the charge that DeMerville realized that the mere existence of the district would make it impossible for plaintiff to pay the deeds of trust and enable him to perpetrate his alleged scheme to obtain the property for himself.

The allegation about the fraudulent misrepresentation that the title certificate showed a clear title is equally unsubstantiated. To begin with, it is difficult to conceive that a lender of money on the security of a deed of trust could deceive the borrower by representing to him that the title was clear, when such is not the fact. A clear title is for the benefit of the lender. In any event, there was no evidence as to the content of any certificate of title which might have been obtained other than De-Merville’s statement that the certificate showed a “clear” title, no evidence that the certificate of title showed anything about a lien for water district obligations and finally no evidence of any fraudulent concealment from plaintiff of the contents of a title certificate.

Although this disposes of the actual allegations of plaintiff’s petition, we note briefly the different tack which plaintiff has attempted to take on this appeal. Plaintiff now contends that by virtue of the loan commitment of DeMerville for which plaintiff agreed to pay a 1% commission on the loans to DeMerville, DeMerville became her agent and a fiduciary relationship arose, with a resultant fiduciary duty which DeMerville violated, to disclose all material facts to plaintiff.

The mere fact that DeMerville was to receive a commission on the loans and that he undertook to “cause to be deposited” the necessary funds cannot obscure the fact that DeMerville acted as a principal in making the loans and that plaintiff was well aware of that fact. The proposition that he became plaintiff’s agent is entirely unsupported by law or evidence. See Swearingen v. Moore, 138 Okl. 24, 280 P. 295, 299.

His failure to disclose relates to a matter mentioned in the petition, but not actually asserted as a ground of fraud- — the absence of partial released clauses in three of the four deeds of trust. Plaintiff endeavored-to show that in St. Louis County subdivision development financing, provisions are included in deeds of trust for the release of the lien as to lots or parcels of the entire tract as the development proceeds. No par--tial release clauses were found in plaintiff’s deeds of trust originally. When the indebtedness secured by the Cliff Cave Road tract was increased from $8,000 to $13,000, plaintiff, at the suggestion of an attorney for the Title Insurance Corporation, insisted upon the inclusion of a partial release clause, giving such right upon the payment of $350 per acre, which was done.

Plaintiff now contends that DeMerville knew that she wanted to subdivide the property, but that he deliberately omitted partial release clauses from the deeds of trust in order to make it impossible for plaintiff to develop and sell the land so that he might acquire it. Gross mentioned that the other consideration which prevented his purchase of property from plaintiff was the absence of a partial release clause in the deed of trust on the Telegraph Road tract.

Again, however, there is no basis for the assumption that DeMerville was under any sort of obligation to insert such a clause for the benefit of plaintiff. There is no evidence that plaintiff requested such a clause other than in the second Cliff Cave deed of trust and it was then inserted. The fact that there was no such clause in the other deeds of trust was apparent from the reading of them, which plaintiff had an opportunity to do. No one represented to her that such provisions were to be found in the instruments.

Apparently, plaintiff’s position rests entirely upon the fact that she told DeMerville that she intended to divide the Telegraph Road tract into lots and sell them off and that by virtue of such knowledge, DeMer-ville, in his superior position, was obliged to assist her to that end by placing partial release provisions in the deeds of trust. However, the evidence as to the practice in St. Louis County with respect to partial release clauses was not so clear and convincing as to lead to the conclusion that the omission of such clause in the deeds of trust in question was part of a fraudulent design on the part of DeMerville. Evidence as to such practice insofar as unplatted land (the land in question had not been platted) was concerned was insubstantial, the evidence tending to show that, as a general practice, such clauses were limited to platted land or larger tracts of real estate. Evidence as to DeMerville’s knowledge of the practice was absent.- Certainly, even had he known of the practice, the matter would not have been so peculiarly within his knowledge as to call for him to expound it to plaintiff. Our conclusion that there was no fiduciary obligation is likewise applicable to the alleged concealment hy De-Merville regarding this matter. In retrospect, it may now appear that it might have been to plaintiff’s advantage to have such provision in the deeds of trust which she executed, but the evidence and inferences therefrom fall far short of proof of fraud upon her by DeMerville.

In any event, plaintiff’s whole basic idea that DeMerville concocted a nefarious scheme to defraud her by omitting partial release clauses from the deeds of trust is simply without any evidentiary support. Furthermore, the entire idea is contrary to reason.

If, as plaintiff contends, DeMerville was so obsessed with the idea of obtaining the property for himself immediately upon viewing it that he struck upon the devious scheme which plaintiff attributes to him, no explanation appears for the obvious conclusion that he could simply have declined to finance plaintiff and have bid for the property himself at the partition. The petition contains a vague allegation that De-Merville refrained from doing so “for fear of possible conflicts.” No evidence was offered in support of this idea. DeMerville was asked on his deposition if in fact, although plaintiff showed him the properties, he wanted to acquire them for himself, but was afraid of “showing [his] hand for fearing * * * being involved as a trustee for another matter.” DeMerville’s reply was: “God knows I don’t know anything about anything like that.”

Again, in refutation of plaintiff’s fundamental idea of the origin of the “fraud” upon her, when plaintiff fell into default on the deeds of trust, DeMerville did not rush in to foreclose them. She had been in default for almost two years before the trustee’s sale under the deeds of trust. Such delay is wholly inconsistent with the essential basis of plaintiff’s claim.

Giving plaintiff the benefit of a favorable ruling on all of the various objections to the evidence at trial which was not ruled upon by the trial court, plaintiff still falls short of the burden upon her to prove the fraud which she charged. Fraud is not presumed and must be proved. Although we recognize that fraud does not generally proclaim itself loudly, nevertheless the mere unsuccessful and unfortunate outcome of a business transaction is no basis for the conclusion that such result was produced by fraud upon the unsuccessful participant.

The judgment is affirmed.

HOUSER and HIGGINS, CG, concur.

PER CURIAM:

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    W. C. BOWLING, C. C. Bowling and Juliette Bowling Rollins, Appellants, v. John LONGWELL, Dorsey Bass, Clyde Cunningham, Ira L. Davis, Richard Knipp, individually and constituting the City Council of the City of Columbia, Missouri, Don F. Allard, City Manager, and the City of Columbia, Missouri, a municipal corporation, Respondents.
    No. 51572.
    Supreme Court of Missouri, Division No. 1.
    Feb. 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied March 14, 1966.

      Terence C. Porter, Columbia, for appellants; Welliver, Porter & Cleaveland, Columbia, of counsel.
    George F. Nickolaus, City Counselor, Columbia, for respondents.
   HIGGINS, Commissioner.

Appellants’ petition for declaratory judgment and injunction was dismissed, and we have appellate jurisdiction in that the petition is based on contentions that certain ordinances of the City of Columbia are unconstitutional because they impair rights of contract and take property without due process of law in violation of Article I, Section 13, Constitution of Missouri 1945, V.A.M.S., and Article I, Section 10, and Amendment XIV, United States Constitution.

Appellants filed this action March 24, 1965, as residents and taxpayers of the City of Columbia, Missouri. They also identify themselves as defendants-landowners in Case No. 47747, also in the Circuit Court of Boone County, instituted by the City of Columbia February 26, 1965, under the authority of Council Bill No. 12-65, to acquire certain land from them for use as an off-street parking facility; and they are further identified as the owners of Bond No. 479 which is one of a series of parking facility revenue bonds issued pursuant to Ordinance 1244 of May 18, 1959.

On September 27,1955, the City of Columbia, by special election, authorized the issuance of $1,250,000 in negotiable, interest-bearing revenue bonds for the purpose of acquiring land and constructing off-street parking facilities with principal and interest to be paid solely from the proceeds from operation of such facilities.

The first plan for construction and operation of off-street parking facilities utilizing the bonds was known as the “Ramp Plan.” It was adopted by the' council March 4, 1957, but rejected through referendum election May 7, 1957.

On May 18, 1959, the council adopted Ordinance No. 1244 aforesaid under which the city acquired land, constructed parking facilities,, and authorized payment for same by the issuance and sale of $750,000 of the $1,250,000 revenue, bonds authorized by the special election of September 27, 1955. Ordinance 1244 defined “parking facilities” to “mean and include all motor vehicle parking facilities of the City of Columbia, Missouri, including but not limited to all parking meters or devices used in connection with the on-street and off-street parking of motor vehicles, all City-owned or operated parking lots and other facilities which provide public parking for motor vehicles, and all extensions, improvements, enlargements, and additions to the said motor vehicles parking facilities' of said City * * Ordinance 1244 contained other covenants to protect and preserve the security of bondholders: “ * * * the said City covenants and agrees * * * that it will cause the said parking facilities continuously to be operated in such manner and under such conditions as to provide revenues and receipts sufficient to pay the principal of and the interest on this bond and the issue of which it forms a part, * * * in the event that parking facilities, other than those herein provided for, shall be constructed hereafter and placed in operation by the City of Columbia, the rates, rentals and charges for the use of such additional parking facilities shall be so fixed that the revenues and receipts from the parking facilities herein pledged shall not be thereby adversely affected.” In addition, Ordinance 1244 gave bondholders a lien upon all revenues and receipts from such “parking facilities” and provided that the city “will not voluntarily create or cause to he created any debt, lien, charge, or encumbrance having priority to or parity with the lien of the bonds issued under this Ordinance upon any of the revenues and receipts pledged to the payment of the bonds * * * unless * * * provision shall have been made for the payment in full of the said outstanding bonds * * or unless the average annual revenues for the next preceding three years plus future average annual revenue shall equal or exceed average annual expenses of operation and maintenance of a new parking facility plus 150 per cent of the highest amount thereafter required in any year to pay principal and interest on the original issue of bonds and any new issue of bonds contemplated in connection with any new facility. The last provision is required to be determined and certified by independent consulting engineers with a national reputation in connection with parking facilities.

On July 20, 1964, the city employed a firm of city planners to determine the feasibility of locating a certain parking facility at Eighth and Cherry Streets, and appellants interpret the reports of that firm, made August 28, September 4, and September 10, 1964, to show that proposed facility to be economically unsound and that it would not meet the test for the issuance of additional bonds previously described in connection with Ordinance 1244.

On November 2, 1964, the city employed an architectural firm to prepare sketches, cost estimates, and feasibility recommendations for a parking facility at Eighth and Cherry Streets.

On January 4, 1965, the city adopted a resolution, Council Bill No. 11-65, declaring the necessity for construction of an off-street parking structure at Eighth and Cherry Streets, at an estimated cost of $350,000, to be paid from the issuance and sale of all or part of the $500,000 of bonds remaining from the original $1,250,000 authorization, and on February 1, 1965, the city enacted an ordinance, Council Bill No. 12-65, which authorized acquisition of land and construction of the parking facility described in Council Bill No. 11-65, providing further that bonds in payment of same be payable solely from the operation of such parking facilities and from on-street parking meters.

Count I of the petition prays:

In paragraphs 1, 2, 3, 5, and 6 for declarations that Council Bills 11-65 and 12-65 are inoperative, void, and without force of law because they impair the right of contract under Ordinance No. 1244 in violation of Article I, Section 13, Constitution of Missouri, and Article I, Section 10, United States Constitution, and are thus arbitrary and capricious;

In paragraphs 4, 7, and 8 for declarations that enforcement of Council Bills 11-65 and 12-65 would result in the taking of private property without due process of law in violation of Article I, Section 10, Constitution of Missouri, and Amendment XIV, United States Constitution; that defendants are thus without authority to proceed with condemnation in Cause No. 47747; and for an order restraining and enjoining defendants from proceeding under Council Bills 11-65 and 12-65 and with Cause No. 47747.

Count II, in addition to matters previously recited, alleges that by reason of lapse of time coupled with changed conditions, the authority of the city to issue bonds upon the special election of September 27, 1955, has terminated, and the prayer is for a declaratory judgment to that effect and for an order restraining the city from proceeding until the issues of this cause be determined.

The court sustained defendants’ motion to dismiss and dismissed the petition without specifying any ground for dismissal.

We have previously grouped paragraphs of appellants’ prayers for relief according to their subject matter. The first such grouping is of paragraphs 1, 2, 3, 5, and 6 of Count I which seek declarations as to whether Council Bills 11-65 and 12-65, or either of them, impair contractual obligations of Ordinance 1244 under which appellants’ bond was issued, and, if so, whether they are thus arbitrary, capricious, and void.

Appellants’ petition concedes that the city “has enacted no legislation * * * providing the rate of interest, maturity dates, denomination, or other details with respect to the $350,000.00 in * * * bonds auu thorized to be sold under * * * Council Bill No. 11-65 * * *.”

Our own reading of Council Bills 11-65 and 12-65 verifies appellants’ concession and, in addition, we note that neither makes any provision in conflict with Ordinance No. 1244 or with respect to class or preference, or whether any bonds there referred to would be on a par, superior, or subordinate to appellants’ bond and all others issued under Ordinance 1244. Neither bill authorizes the issuance of any bonds and they speak only of acquiring land and constructing additional parking facilities to be paid for by bonds. Plaintiffs do state “upon information and belief that it is the intention and plan of the defendant City of Columbia to issue said bonds (those mentioned in Bills 11-65 and 12-65) at par or with parity to the remainder of the outstanding bonds of the $750,000.00 issued, authorized and sold by virtue of Ordinance No. 1244 * * Such allegation, however, is not borne out by the provisions of Bills 11-65 and 12-65 and, if the bonds for additional facilities as mentioned in Bills 11-65 and 12-65 were to be issued junior or subordinate to appellants’ bond, then appellants’ security might well be enhanced by any additional parking facilities constructed with such new or additional bonds. Certainly it does not yet appear that the proposed bonds will compete with the older bonds. Under such circumstances, the request of appellants for relief in paragraphs 1, 2, 3, 5, and 6 of Count I on the theory of impairment of contract does not present a justiciable controversy because the question presented is hypothetical and assumes an issuance of competing bonds. It is thus advisory, premature, and not “ripe for determination.” City of Joplin v. Jasper County, 349 Mo. 441, 161 S.W. 2d 411; Transport Mfg. & Equipment Co. v. Toberman, Mo., 301 S.W.2d 801, 806 [3, 4] ; City of Creve Coeur v. Creve Coeu'r Fire Protection Dist., Mo., 355 S.W.2d 857, 859 [2-6]; M.F.A. Mut. Ins. Co. v. Hill, Mo., 320 S.W.2d 559, 564 [8].

By paragraphs 4, 7, and 8 of Count I appellants seek declarations as to whether proceedings in condemnation would result in taking of private property without due process of law and whether respondents are entitled to proceed with their condemnation suit, Cause No. 47747, in Boone County Circuit Court.

According to their brief, “appellants are asking for a declaration as to whether the ordinance which enables the acquisition of their property is unconstitutional and invalid because it impairs the obligation of contractual obligations owed to them as bondholders.”

We have already demonstrated that appellants’ petition does not present a justiciable issue by way of matters contained in the ordinance of condemnation, Bill No. 12-65, impairing contractual rights under Ordinance 1244 which set the conditions of appellants’ bond and, since the issue of impairment is not now present, this request for declarations in respect to respondents’ right to proceed in condemnation and for injunction against such proceedings based on alleged impairment of contract is also without merit. Lester Real Estate Co. v. St. Louis, 169 Mo. 227, 69 S.W. 300, 302.

Appellants contend that their request for declarations and injunction in Count II “challenges the authority of the respondents to issue the balance of the $1,250,000 in parking facilities revenue bonds 9 years and 3 months after they were voted on by the electors of the City of Columbia.”

Whether a city’s authority to issue bonds terminates by reason of a lapse of time depends upon the facts and circumstances of the particular case. See Missouri Electric Power Co. v. Smith, 348 Mo. 738, 155 S.W.2d 113, in which lapse of time between September 1, 1931, when special election was held, and April 8, 1940, when ordinance was passed authorizing issuance of bonds, did not terminate authority granted by special election; and Petition of City of St. Louis, Mo., 363 S.W. 2d 612, in which lapse of 18 years between authorization and proposed issuance of bonds did not terminate authority to issue bonds. Here, appellants relate the 9 years and 3 months’ lapse between authorization and proposed issuance to the referendum defeat of the first attempt to issue part of the bonds, and the matters of “change of population,” “decreased downtown parking demand,” “shift of retail establishments to shopping centers,” “relocation of central business district,” “increased land values,” discussed in the feasibility reports referred to and attached to the petition. None of such matters show any intent by the city to abandon the authority to issue bonds given by the election, Missouri Electric Power Co. v. Smith, supra, 1. c. 120 [6] ; nor do they constitute an abuse of the city’s discretion in not proceeding with issuance and sale of such bonds at an earlier date, Petition of City of St. Louis, supra, 1.c. 619[2]; and the request for declaration and injunction on this count is also without merit.

The trial court did not err in dismissing the petition, and the judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.