author: PALMORE, Judge. MONTGOMERY, Judge

text:
    Joy Lee CORKEN, Indiv. and Irvin Kelly Corken, an infant, etc., Appellants, v. CORKEN STEEL PRODUCTS, INC., and the Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    Rehearing Denied Feb. 12, 1965.
    John J. O’Hara, O’Hara & Ruberg, Cow ington, for plaintiffs in error.
    William E. Wehrman, Covington, for de' fendants in error.
   PALMORE, Judge.

On the morning of November 13, 1961, Irvin Corken, Jr., a salesman employed by Corken Steel Products, Inc., was calling on customers in Campbell County. Between calls ]ie stopped at a. restaurant in Newport and had lunch. As he was in the act of getting back into his automobile, which was parked on the street near the restaurant, he was deliberately shot and killed by a stranger acting without provocation or discernible reason of any kind, evidently a madman. A workmen’s compensation claim asserted by his dependent widow and child was denied in a 3-2 decision by the board. This appeal is from a judgment of the Campbell Circuit Court affirming that action.

The basis for the board’s denial of the claim was that Corken’s death did not result from a hazard peculiar to the streets and therefore did not arise “out of” his employment. The authority for this position is Lexington Ry. System v. True, 276 Ky. 446, 124 S.W.2d 467 (1939), in which it was held that the death of a street car motorman from a stray bullet fired by a boy shooting at birds did not arise out of the employment.

The theory that an injury must be incidental, or the hazard peculiar, to the nature of the employment is fundamentally indistinguishable from the principle of proximate cause, or foreseeability. The True opinion, for example, equates causation with “likelihood.” “But,” as Larson asks, “what relevance has foreseeability if you are not interested in the culpability of the actor’s conduct? There is nothing in the theory of compensation liability which cares whether the employer foresaw particular types of harm or not. The only criterion is connection in fact with the employment, whether it is foreseeable in advance, or apparent only in retrospect. This criterion cannot in any logical sense be made to depend on foreseeability.” Larson, Workmen’s Compensation, § 6.50, pp. 46-47.

We are persuaded that the True case is not sound. It is therefore overruled. We accept the view that causal connection is sufficient if the exposure results from the employment. See Larson, Workmen’s Compensation, § 10.12; Industrial Indemnity Co. v. Industrial Accident Comm., 95 Cal.App. 804, 214 P.2d 41 (1950); Gargiulo v. Gargiulo, 13 N.J. 8, 97 A.2d 593 (1953); In re Baran’s Case, 336 Mass. 342, 145 N.E.2d 726 (1957).

Corken’s employment was the reason for his presence at what turned out to-be a place of danger, and except for his-presence there he would not have been killed. Hence it is our opinion that his. death arose out of the employment.

The judgment is reversed with directions that the cause be remanded to the Workmen’s Compensation Board for entry of an order sustaining the claim and awarding compensation accordingly.

MONTGOMERY, Judge

(dissenting).

I respectfully dissent because I feel that the doctrine of Lexington Railway System v. True, 276 Ky. 446, 124 S.W.2d 467, is sound and for the further reason that it is unwise to change it. It has been followed for many years in many cases; thus, the rule is well established. The majority opinion recognizes this in pointing out that many cases would have to be overruled.

The basis of the rule is set forth in Maddox v. Heaven Hill Distilleries, Inc., Ky., 329 S.W.2d 189, as follows:

“When we test the facts of the instant case by our definition of ‘arising out of’ we find that this injury did not result ' from a risk connected with Maddox’ employment because all persons using public highways are exposed to the same hazard. It did not result from a danger peculiar to the distilling industry. * * ■*.”

Some of the cases in which this rule has. been thoroughly and exhaustively considered are: Harlan Collieries Company v. Shell, Ky., 239 S.W.2d 923; Harlan-Wallins Coal Corporation v. Stewart, Ky., 275 S.W.2d 912; Wilke v. University of Louisville, Ky., 327 S.W.2d 739; City of Prestonsburg v. Gray, Ky., 341 S.W.2d 257.

In the latter case the Court said:

“The phrase ‘arising out of’ refers to the cause of the accident; that is, there must be a causal relationship between the accident and the employment. Harlan Colleries [Collieries] Company v. Shell, Ky., 239 S.W.2d 923. 'The test seems to be whether the cause had its origin in a risk connected with the employment and the injury flowed from that source as a natural and rational consequence. Palmer v. Main, 209 Ky. 226, 272 S.W. 736; January-Wood Company v. Schumacher, 231 Ky. 705, 22 S.W.2d 117; Stasel v. American Radiator & Standard Sanitary Corporation, Ky., 278 S.W.2d 721; Masonic Widows and Orphans Home v. Lewis, Ky., 330 S.W.2d 103. The injury, in order to be compensable, must have been an incident of or have issued from the performance of some duty that the employee owed the employer and resulted as a natural consequence of performance of that duty. As such, it must be seen to have been contemplated by a reasonable person familiar with the whole situation as a result of exposure occasioned by the nature of the employment. Such being the case, it can be said to arise out of the employment. Bluegrass Pastureland Dairies v. Meeker, 268 Ky. 722, 105 S.W.2d 611. The exposure to the hazard must result from engagement in the performance of the duties of the employment.”

In the Stewart case, in 1955, it was pointed out that any change in the rule should be made by the Legislature and not by the courts. This suggestion was again made in the Maddox case in 1959. Neither the Legislature nor the people who normally are most interested in such matters have seen fit to press .for a change or to change the rule. It ill becomes this Court to do so.

There is too much instability in the law. It is the function of the judiciary to construe the law, and to change the law is outside that function. Stability of the law is the cornerstone of an orderly society.

It must be pointed out that this change is a'big step toward complete coverage of all injuries suffered by an employee during working hours without regard to whether the injury results from any risk connected with the employment. This was not the intent of the Legislature in enacting tho Workmen’s Compensation Law. This, in effect, places a burden on the employer, which was never contemplated.

For these reasons I cannot agree with the majority opinion.

      . There have been a number of other cases expressing the principle that the injury must result from a risk peculiar to the work, but which might nonetheless have been decided the same way had the rule been otherwise. There have been still others -in which it is questionable whether the result would have been the same. We are of the opinion that the rule adopted in this case is sufficiently clear to obviate any necessity of scouring the record for the purpose of pinpointing specific opinions, other than True, to overrule.


source: Caselaw Access Project

license: Public Domain

text:
    Roy NOEL, Appellant, v. George Hamilton CREARY, Appellee.
    Court of Appeals of Kentucky.
    Oct. 9, 1964.
    Rehearing Denied Feb. 12, 1965.

      Stoll, Keenon & Park, Lexington, for appellant.
    George M. Combs, Lexington, for ap-pellee.
   RICHARD B. CRAWFORD, Special Commissioner.

This case arises out of an automobile accident that happened August 29, 1959 about 2:15 p. m., between the appellant driving south and the appellee north on Highway 68 several miles out from Nicholasville in Jessamine County. At the intersection of Highways 68 and 29 appellant entered to turn left, but as he applied his brake, his truck skidded and the rear end of his truck crossed the center line of the highway and hit the appellee who had pulled almost off the road to avoid the skidding truck.

The court submitted to the jury the ordinary duties required of the appellant in the operation of his truck, but held as a matter of law that the appellee was free of negligence and refused to give a contributory negligence instruction. We believe the trial court was correct.

Appellant’s main complaint is that the verdict of $12,500 for pain and suffering is excessive. In this we disagree.

Appellee is a retired 60 year old army officer who “ranched” a fifty acre tract in Texas. Before the accident he was in apparent good health with no disability. In the accident, the skidding truck hit his car at the hood, windshield and door on his (the driver’s) side of the car. Appel-lee testified he laid over in the seat, but the top and windshield came down on him. His shoulder, head and arm were injured. He got out of the car and walked around after the accident and appellant testified that he told him he wasn’t hurt. He did go to a doctor in Nicholasville after the accident who testified that he cleaned up the cuts and abrasions of his left shoulder and left arm and the next day appellee complained of pain in the left chest and respiratory trouble. The doctor had ap-pellee x-rayed which turned out negative. He gave him drugs for a muscle spasm. The appellee left then by auto for New York, Pennsylvania and New Jersey but returned to Nicholasville September 17 when the doctor saw him again. He complained of muscle pain in the shoulder and the doctor treated him with muscle relaxants. He complained he heard “crickets” in his ears, but the doctor’s examination was negative. In Texas appellee was seen on October 8, 1959, June 10, 1960, and January 31, 1961 by an orthopedic surgeon who said the injury was a strain of the shoulder, that he could find no objective findings and that in his opinion appellee would recover. Appellee was treated over a period of a couple of months by a general practitioner with heat and drugs for his shoulder. In Texas appellee consulted an ear specialist on four occasions, October 13 and 26 and December 22, 1959 and January 31, 1961. This doctor testified that appellee had a loss of hearing of about 19% combined in both ears. He treated'him with drugs and exercises and conducted extensive tests, but concluded that the loss of hearing was permanent and further treatment unnecessary.

It is well settled in this state that there is no legal yardstick for measuring and no slide rule for computing compensation for pain and suffering to which a party may be subjected as the consequence of a wrong. There is only the broad and general rule of reasonableness, free from sentiment or fanciful standards, and, as well, free from the imposition of punishment for an aggravated act where the circumstances are not of a character to authorize submission to the jury of the question of allowing punitive damages.

This court has always indicated a reluctance to set aside a judgment as being excessive except where the amount seems disproportionate to the actual damages and mental and physical pain suffered and it appears that the jury may probably have been actuated by sympathy or by bias, prejudice or unjudicial and improper motivation. It has been said frequently that this conclusion is reached when “at first blush” the award strikes the judicial conscience as being grossly excessive. Field Packing Co. v. Denham, Ky., 342 S.W.2d 524.

The jury in this case awarded the appellee $500.00 for the destruction of his automobile, $309.90 for medical expenses' and $12,500.00 for pain and suffering, mental and physical, and we are unable to find within this record any indication that would indicate to us that “at first blush” the award strikes the judicial conscience as being grossly excessive. It is our thought that the verdict might be considered liberal, but we believe that is the most that can be said. While we may have arrived at a different amount had we been sitting as jurors, that does not authorize us to invade the province of the jury which heard this case. The plaintiff was a resident of far away Texas and the defendant was a resident of Kentucky, and the case was heard, figuratively speaking, before a jury of his own neighbors, and it is difficult for us to understand under these circumstances how there could have been any bias or prejudice on the part of the jury in this case against the defendant. The learned trial judge in his opinion overruling the defendant’s motion for a new trial had this to say in his opinion.

“As to the verdict being excessive, it may be larger than the attorney for defendant usually loses by in this court, but where a person has medical proof of shoulder and neck injuries and loss of hearing, I do not see anything to the claim that it is excessive.”

On the closing page of his brief counsel for appellant in his conclusion states, “It is our information that the jurors were informed that the appellant had plenty of insurance.” There is, of course, no line of testimony in the record that we have been able to find to support this bald unsupported statement of counsel in his brief.

We believe the case was fairly tried and that the jury having arrived at the amount of damages the plaintiff was entitled to recover for his pain and suffering and such verdict does not “at first blush” strike the judicial conscience as being grossly excessive, the same should not be set aside.

Appellant sought to supersede-$5,000.00 of the total judgment of $13,-309.90 and the trial court refused him this-' privilege. This was error. Appellant had the right to supersede any portion of the'judgment he chose to, hut by so doing he-would not stop the collection of the balance of the judgment by any means ap-pellee could avail himself of, as a super-sedeas for a portion or part of a judgment only stays the proceedings for that part and no other. (CR 73.04) However, the error in the instant case is now beyond the point of correction.

There is no materiality in the appellant’s contentions concerning errors in the bill of evidence and undue pressure by the court to bring the trial to an early conclusion.

We therefore recommend that the judgment be affirmed.

The opinion is approved and the judgment is affirmed.


author: WILLIAMS, Judge.

text:
    BLACK MOTOR COMPANY, Appellant, v. James S. GREENE, Jr., et al., Appellees.
    Court of Appeals of Kentucky.
    Oct. 30, 1964.
    Rehearing Denied Feb. 12, 1965.

      Francis M. Burke, Francis Dale Burke, Pikeville, for appellant.
    James S. Greene, Jr., Greene & Forester, Harlan, Herschel M. Sutton, Sutton & Martin, Corbin, for appellees.
   WILLIAMS, Judge.

This is an appeal from a judgment denying appellant’s motion, treated as a proceeding under CR 60.02, to set aside an order allowing appellees an attorneys’ fee. This controversy is collateral to those involved in the cases of Albert v. Black Motor Company, Ky., 357 S.W.2d 714, and Black Motor Company v. Hill, Ky., 372 S.W.2d 801.

The original suit was commenced in 1955. It was a derivative action initiated by three stockholders on behalf of the appellant Black Motor Company against five of its directors for secret profits allegedly realized from wrongful corporate manipulations. The final judgment in the case was for $192,000 against the corporation’s former President, Albert, which was affirmed in Albert v. Black Motor Company, Ky., 357 S.W.2d 714.

The mandate of this Court was filed in the office of the Clerk of the Harlan Circuit Court on June 23, 1962. On July 14, 1962, the Harlan Circuit Court heard counsel on motion to allow an attorneys’ fee for services rendered in the preparation and trial of the case. On the same day the court entered an order allowing an attorneys’ fee in a sum equal to 40 per cent of the amount collected by the appellant corporation.

Almost a year later, on June 30, 1963, the appellant corporation moved to set aside the order fixing and allowing an attorneys’ fee. Response was made to that motion and briefs were filed by both parties. The circuit court treated the motion as a proceeding under CR 60.02, and permitted the appellant to take proof in support thereof. Upon completion of the taking of proof by the appellant the appellees moved the court to dismiss appellant’s motion because of failure to show any right to relief. The circuit court heard argument of counsel on November 9, 1963, and dismissed appellant’s motion to set aside the order allowing an attorneys’ fee. This appeal results.

Although some of the minority stockholders testified they thought an agreement to prosecute the suit for a fixed fee was final, there was proof that an additional fee was discussed at meetings when they were present. There were also introduced in evidence Tetters from the attorneys to the stockholders advising that they would seek a court allowance of a fee from the appellant.

Notice of appellees’ motion for allowance'of an attorneys’ fee was served upon the attorneys of record in the case. On the day the motion was heard, and soon after the order was entered, a copy was delivered to the president of appellant corporation. Thereafter appellant was permitted to take proof, and several hearings were had in the circuit court, as well as in this Court. The court had jurisdiction of the parties and of the subject matter. Worthington v. Commonwealth, Ky., 304 S.W.2d 926. Ample opportunity to be heard was made available to and utilized by appellant.

The circuit court made the following finding of fact:

“5. The Court finds that during the course of the negotiations between Black Motor Company and Albert in an effort to reach a settlement in Civil Action No. 4087, wherein Black Motor Company was seeking to collect the judgment entered in this action, an agreement was entered into between the respondents and Black Motor Company whereby in order to effect a compromise settlement, respondents would reduce their attorney fee from a sum equal to 40% of the amount recovered to a sum equal to 33½% of the amount recovered, * * *. The Court further finds that this agreement between the respondents and Black Motor Company was partially executed on the 18th day of April, 1963, when division was made of the initial compromise payment of $50,000.00 plus the value of the shares of stock in Black Motor Company and Southeastern Sales Company transferred from Albert to Black Motor Company, which division was based upon 33J4% to the respondents and 66⅜% to Black Motor Company.”

This Court cannot set aside a finding of fact unless it is clearly erroneous. Estill County Stone Co. v. Hockensmith, Ky., 305 S.W.2d 107, CR 52.01. If supported by substantial evidence, the court’s finding of fact is not clearly erroneous. Massachusetts Bonding & Insurance Company v. Huffman, Ky., 340 S.W.2d 447. There is substantial evidence that the parties agreed to a fee in a sum equal to 33¾/3% of the amount recovered. The finding of the circuit court to that effect consequently will not be set aside.

The circuit court properly dismissed the motion to set aside the order allowing an attorneys’ fee. But, in accordance with its finding of an agreement to reduce the percentage from 40% to 33½%, an order should have been entered reflecting that fact.

The judgment is affirmed in part and reversed in part, with directions that an order be entered fixing an attorneys’ fee in the amount of 33½% of the amount collected.


author: DAVIS, Commissioner.

text:
    Creed SMITH et al., Appellants, v. N. C. W. GENNETT et al., Appellees.
    Court of Appeals of Kentucky.
    Nov. 25, 1964.
    Rehearing Denied Feb. 12, 1965.
    Cole & Cole, Barbourville, for appellants.
    Luker & Luker, London, for appellees.
   DAVIS, Commissioner.

The appellants were plaintiffs below in this damage suit arising from an automobile-truck accident. The lower court entered summary judgment absolving appel-lees from liability on the ground that the truck driver was not a servant of appellees (herein referred to as Gennett). This appeal presents the question whether the truck driver was a servant of Gennett.

Gennett operates its main lumber plant at Asheville, North Carolina, and has a lumber mill operation on Elk Creek in Clay County, Kentucky. The plant in Clay County processes logs into lumber; the processed lumber is shipped from the Clay County plant to such destinations as are designated by the main office in North Carolina. Gennett does not maintain any company-owned trucks or other means for shipping the lumber from the Clay County plant. The general practice, as explained by the manager of the Clay County plant, is that the head office advises the Clay County plant that a specific type and quantity of lumber is to be shipped, and further that a truck will be sent to the Clay County plant for loading. Some shipments are made by rail.

Robert T. Killion, Jr. resides at Morris-town, Tennessee, and is a track operator. Killion had a track driver employee named Carter, also a resident of Morristown. On the occasion of the accident involved in this case Carter was driving Killion’s track from Oneida, Tennessee, where he had delivered a load of lumber hauled from Gennett’s Clay County plant. Carter stated that his destination was Manchester, Kentucky, from which place he intended to telephone to Killion to learn what directions Killion had for him as to further hauling duties.

Carter said that the lumber had been loaded onto the truck by Gennett’s employees, and he had been instructed where to deliver it. Carter’s salary was paid by Killion. Gennett compensated Killion for the hauling on the basis of “fifty cents a loaded mile.”

Killion had no written contract with Gennett; he usually called Gennett’s Ashe-ville office to ascertain whether any hauling was available. He had been trucking lumber for Gennett, on this basis, for about eighteen months. There was no regular schedule. Other trackers were used by Gennett, and some of Gennett’s shipments were made by railroad.

For the appellants it is pointed out that Killion had no certificate or permit from the Interstate Commerce Commission authorizing his handling of interstate shipments by motor carrier. Neither did Gen-nett possess any such authority. However, we can perceive no significance to this as it relates to the question before us.

The question at issue is whether Carter was a servant of Gennett at the time of the accident. Appellant reasons that Carter was a “loaned servant” — that he was loaned to Gennett by Killion. Reliance is had upon Bowen v. Gradison Const. Co., 236 Ky. 270, 32 S.W.2d 1014; Clendenin v. Colonial Supply Co., 267 Ky. 544, 102 S.W.2d 992; Tindall v. Perry, Ky., 283 S.W.2d 700; Sam Horne Motor & Imp. Co. v. Gregg, Ky., 279 S.W.2d 755; and Grasberger v. Liebert & Obert, 335 Pa. 491, 6 A.2d 925, 122 A.L.R. 1201.

An examination of the foregoing authorities confirms the proposition that a servant may be loaned or hired by his master for some special purpose so as to become the servant of the party to whom he is loaned or hired for that particular service. Moreover, those cases confirm the principle that the basic test is who controls the servant in the particular employment. Further, it is recognized in the same authorities, and many others, that an independent contractor is not an employee so as to impose liability upon one for whom he contracts.

We shall not burden this opinion with detailed analysis of each of the cited cases. Examination of them reflects that they recognize that the right of control of the servant is one vitally important factor; another factor is whether the one employed is engaged in a distinct occupation or business; of significance is whether the parties believe they are creating the relationship of master and servant. An independent contractor is said to be one who is doing his own work in his own way.

In light of these elements, we conclude that Carter was not a servant of Gen-nett at the time of the accident. Clearly, Killion was engaged in a distinct occupation as a tracker. When Killion sent his truck to haul Gennett’s lumber, Killion was doing his own work in his own way. Gen-nett had no control as to whom Killion would send nor as to the route the truck would follow. In short, we observe nothing in this relationship to distinguish it from the usual situation in which the transportation facilities of a trucker are employed to convey property.

In Ruth Bros. v. Stambaugh’s Adm’r., 275 Ky. 677, 122 S.W.2d 501, it was said:

“Cartmen, draymen and truckmen are generally recognized as independent contractors where they haul for a unit price with no supervision as to the manner or method of hauling.”

We consider that observation as sound and dispositive of the issue here. At bar we have none of the particular circumstances which induced a different conclusion in some of the cited cases.

The judgment is affirmed.


author: PRITCHARD, Commissioner.

text:
    STATE of Missouri ex rel. Harold L. HENRY, Prosecuting Attorney of Howell County, Missouri, Respondent, v. Roy MALHMAN and Besie Malhman or Bessie Mendenhall, and the Unknown Heirs of Levenia Peters, Appellants.
    No. 50485.
    Supreme Court of Missouri, Division No. 2.
    Jan. 11, 1965.

      Harold L. Henry, H. D. Green, Richard D. Moore, West Plains, for plaintiff-respondent. ■
    William C. Scott, West Plains, for appellants.
   PRITCHARD, Commissioner.

The state of Missouri at the relation of the Prosecuting Attorney of Howell County, Missouri, was successful in its action below in which it was adjudged that a parcel of land in Mountain View, Missouri, had escheated to the state upon the death of the owner, Levenia Peters, who died in 1923. See Chapter 470. (This and other statutory references herein are to RSMo 1959, V.A.M.S.) Appellants were brought into the case as possessors of the land (terre-tenants, § 470.060). Appellants appeared, and contested the state’s right to an escheat of the land as they had a statutorily conferred right to do under § 470.090. See also 30 C.J.S. Escheat § 13, p. 1177, and § 470.160 providing that any party who shall have appeared to any proceedings shall have the right to prosecute an appeal upon any judgment. Appellants denied all the allegations of the state as contained in the information except that they were in possession of the land. Appellants did not claim the title to the land to be in themselves. Title to real estate is not in the strict sense involved between these parties as set forth in appellants’ statement in their brief concerning the jurisdiction of this court. This court, however, has jurisdiction by reason of the fact that the state of Missouri is a party. Mo.Const.1945, Art. V, § 3, V.A.M.S.

The sole question on this appeal is whether the state had sufficient evidence to show that the owner of the lands involved died intestate leaving no heirs or representatives capable of inheriting the same. § 470.010.

There was no dispute that the property was acquired by Mrs. Levenia Peters as grantee from W. A. Clark and Lettie C. Clark, his wife, as grantors, in a warranty deed dated April 30, 1921. It was agreed that Mrs. Peters died about 1923. Further evidence adduced on behalf of the state, appellants having introduced none, is as follows: John Duncan testified that he was born and raised in Mountain View, and lived there 70 years. Levenia Peters died before 1925, and he, being in the undertaking business, handled her funeral. The husband of Levenia Peters died before she died. Mr. Duncan did not know of any heirs of Mrs. Peters, and he did not know of anyone who ever claimed that he owned the estate.

Mrs. Clyde Ethel Walker testified by deposition that she had lived in Mountain View since 1891. She was associated with the Postal Department there for 31 years, 23 years of which were spent as. Postmistress. She resigned as Postmistress on May 30, 1956. She knew Levenia Peters during the time that Mrs. Peters and her husband lived in Mountain View. Mrs. Peters’ husband preceded her in death. Mrs. Peters died in 1922 or 1923. The only relative she ever heard of was a nephew of one of them (Mr. or Mrs. Peters). The nephew was present at both funerals and didn’t want the property — he wasn’t interested in it. She did not know the name of the nephew or where he lived.

A. W. Landis, a licensed, practicing attorney at law in West Plains, Missouri, was also an abstractor there. He checked the record of the property here involved and learned that there had been no transfer thereof since it was deeded to Levenia Peters — title is still in her name. His further testimony was as follows:

“Q Now, A. W., back several years ago and before this suit was instigated, did you have occasion t® attempt to locate heirs of Levenia Peters?
“A I attempted to locate the owners of the land, and Mr. Rinehart over—
MR. SCOTT: I am going to object to the testimony of this witness and to statements made by any other person than Levenia Peters unless it is shown first that the declarant was a member of the family of Levenia Peters and thus possessed of the knowledge of her relationship and same was made prior to instigation of the suit, and declarant is unavailable as a witness.
THE COURT: Well, so far, overruled. If I understand it, this is an investigation he made back a number of years before the filing of this suit?
MR. SCOTT: I am objecting to remarks he may want to make concerning Mr. Rinehart.
“Q (By Mr. Moore) What did you start to say?
"A We tried to find the owners of this property because I was executor of Jay’s will, and—
THE COURT: Jay Rinehart was executor of the will ?
MR. MOORE: Jay was the administrator of the estate of Levenia Peters.
THE COURT: Explain it to us, will you?
THE WITNESS: Well, I don’t know, Jay paid taxes on the property a number of years, as I recall, part of the time, as administrator, and part of the time as trustee, it shows on those old checkbooks. Jay Rinehart, as executor was anxious to find out, to ascertain, who owned the property. In the course of the thing, we found this deed to Levenia Peters, and there’s some letters, old letters, in regard to that, and later, there was something that indicated William A. Clark owned it.
“Q (By Mr. Moore) Did you attempt to locate any of these persons?
“A I started in St Louis, Missouri,— I looked through the directory, and I found seven W. A. Clarks, William A. Clarks, and wrote each of them a letter.
“Q You have never been able to hear from any of them?
“A I heard from some of them, but they’re not the William A. Clark, of course. When I’d get the letter, they’d say they are not the William A. Clark that ever owned any real estate in Mountain View.”

We have found no case in this state, and none has been cited to us, directly upon the subject of the quantum of proof necessary to sustain a judgment of escheat. We have, however, adverted to general principles in cases and authority from other jurisdictions. Among these principles is the statement in the annotation of 40 L.Ed. 692 that “The burden of proof is on the state, and without proper proof that the lands are subject to escheat, it cannot succeed, even as against a mere occupant.” See also Louisville School Board v. King, 107 S.W. 247, 32 Ky.Law Rep. 687, 15 L.R.A..N.S., 379; Hammond’s, Lessee v. Inloes, 4 Md. 138; People v. Cutting, 3 Johns. (N.Y.) 1; University of North Carolina v. Harrison, 90 N.C. 385; In Re Smith’s Estate, 179 Wash. 287, 37 P. 2d 588; and 30 C.J.S. Escheat § 16, p. 1179. It is also a rule that escheats and forfeitures are not favored in law, In Re Mc-Manis Estate, 94 Colo. 546, 31 P.2d 912, 913 [1]; Taylor v. Benham, 5 How. (U.S.) 233, 270, 12 L.Ed. 130, 148; and 19 Am.Jur. Escheat, § 14, p. 387, where it is said also that any doubt as to whether property is subject to escheat is resolved against the state. See also Dutton v. Donahue, 44 Wyo. 52, 8 P.2d 90, 79 A.L.R. 1355.

In Ann.Cas.1913E, p. 383, it is stated, “The authorities generally are in accord with the view adopted in the reported case (State v. Williams, 99 Miss. 293, 54 So. 951), that in a proceeding to establish escheat a presumption of law is raised in favor of the existence of some person who is capable of inheriting the estate of the decedent.” (Parenthetical citation added.) See also American Mortg. Co. of Scotland v. Tennille, 87 Ga. 28, 13 S.E. 158, 12 L.R.A. 529, 530; Peterkin’s, Lessee v. Inloes, 4 Md. 175; In Re Wakefield’s Estate, 161 Or. 330, 87 P.2d 794, 89 P.2d 592; In Re Smith’s Estate, supra; and 19 Am.Jur. Escheat, § 41, p. 407. In the reported case of State v. Williams, supra (Ann.Cas., 1913E, p. 381), the evidence was that one Miles P. Bristol, Jr., died intestate owning the lands in controversy some time prior to 1865. 42 years afterward, the state undertook proceedings to escheat the property on the alleged ground that decedent died intestate, owning the property, and leaving no heir capable of inheriting from him. The administrator of decedent’s estate, in making application for grant of letters of administration, swore that decedent had no relatives as far as he knew. The lands were assessed for taxes to the heirs of decedent until 1883, at which time they were assessed to J. W. Williams, the administrator. From 1864 or 1865 to the time of suit, no one undertook to oust appellees from the land as heirs of the owner. The court denied escheat, and said, “In section 2186 of Elliott on Evidence will be found the best statement of the rule on the subject of the legal presumption of heirs. It is that the ‘presumption of law is that a person dying intestate has left heirs capable of succeeding to his estate. This presumption that the estate of such person is transmitted to others by the law of descent is so strong, that it can only be overcome by positive proof of the want of persons capable of taking the estate under the laws of descent and distribution * * *. The presumption was held to be so conclusive that it was not overcome by proof of the fact that neighbors and acquaintances of an intestate who had known him for many years, did not know that there were in fact persons capable of taking his estate under the law.’ Again the same authority says that ‘it is held that proof of the fact of there being no known heirs might raise a presumption of the failure of the inheritable blood; but such \proof should be direct and positive, shown to be founded upon inquiry, advertisement, personal family knowledge, or the declarations of those from whom the property descended.’ ’’ (Emphasis added.)

There is one early Missouri case cited to us concerning a finding of heirship, Daudt v. Musick, 9 Mo.App. 169. That was an action in ejectment, and plaintiffs’ right to recover depended upon whether their mother, who was the second wife of one George Stephenson, was his heir because (under the applicable law of descent at the time) he had no children or their descendants, father, mother, brother, or sister, or their descendants. The evidence showed that Stephenson’s age when he died was 70 to 87 years. He came from Virginia, and had lived for nearly half a century continuously in the Florissant valley. No relative was ever examined, nor was there any testimony from anyone who had ever known his family, or who knew anything whatever of hjs father and mother. Blume, a neighbor for 5 years, had never heard of brothers or sisters. Reiners, a' stepdaughter’s husband, never heard of brothers or sisters. The strongest testimony was that of the executor who had known the deceased for 40 years. He testified that the nearest relative Stephenson ever told him of was a brother of his first wife, and he had never heard of brothers or sisters of deceased. He never had any conversation with deceased on the subject of his family, or as to whether he had brothers or sisters. The court said, 9 Mo.App. 173, “All this, we think, amounts to nothing. It does not tend to prove that the father and mother of Stephenson had no descendants except himself, or that those descendants left no descendants. There is here no evidence of general reports in the family, or of statements of deceased in the matter. The objection to the evidence is, not that it is hearsay, but that it is not even hearsay; the witnesses had heard nothing of the matter, and knew absolutely nothing about it. For all that appears, the deceased may have nephews and nieces, or even brothers and sisters. The fact that he did not talk of them to his neighbors has absolutely no significance. He left home as a young man, and died where he had lived, a thousand miles from the home of his youth, at an extreme old age. The witnesses had never heard him speak of his family at all, and many say that they know nothing about it, and that he may have brothers and sisters and nephews and nieces for all they know. * * * Here are no declarations as to pedigree or relationship. The State in which' deceased was born is known; it does not appear that his exact birth-place was unknown, or that there was no clue to better, and perhaps satisfactory, evidence as to his relatives.”

The state cites Robinson et al. v. State et al., Tex.Civ.App., 109 S.W.2d 559, upon the proposition, as was there held, that the phr.ase “having no heirs” means no known heirs, and no heirs who can be ascertained by the exercise of reasonable diligence. The words of pur escheat statute, § 470.010, “leaving no heirs or representatives”, may likewise be said to mean “no known heirs.” There is, however, a burden of proof imposed upon the state to show that there are no known heirs (a negative fact, see State v. Goldberg’s Unknown Heirs, et al., 113 Tenn. 298, 86 S.W. 717). In State v. Williams, supra, it was stated that “such proof should be direct and positive, shown to be founded upon inquiry, advertisement, personal family knowledge, or the declarations of those from whom the property descended.” See also the case of In Re Smith’s Estate, supra, loe. cit. 37 P.2d 591 [2], where it was said, “The state’s burden is met when, in addition to proof of the actual death, nonmar-riage, and intestacy of the propositus, it has been shown that after diligent search and inquiry the state has been unable to find that he left ascertainable heirs. Any other rule would render an escheat impossible by making the presumption that there are next of kin to every intent an irre-fragable presumption. When the state has shown these things it has established prima facie the escheat of the property.” Suggestive of the sources which should be covered by an investigation is the list in the case of In Re Crawford Estate, 12 Pa.Dist. & Co.R.2d 709, 8 Fiduciary 169: Residents of household where decedent resided; friends and neighbors; labor union membership; places of employment; social, fraternal, or beneficial organizations; insurance records; church membership; school records; social security records; Veterans’ Administration or Military Serv-' ice records; Naturalization records, if deceased was not native born; and other sources of information as the circumstances may suggest.

In this case, the testimony of witness John Duncan was only that he did not know of any heirs of Mrs. Peters, and did not know of anyone who ever claimed that he owned the estate. Mrs. Clyde. Ethel Walker added merely that the only relative she ever heard of was a nephew of either Mr. or Mrs. Peters. There was no evidence of general reports in the family. There was no evidence that the deceased did or did not make any statement in regard to her family. It does not appear whether the origin or birthplace of deceased was unknown. Nothing indicates whether or not deceased left personal effects or documents which would shed light upon the question of her relatives, if any. There was no evidence of any inquiry made with respect to any of these matters. Although witness A. W. Landis testified that he made inquiry in the St. Louis area of persons by the name of W. A. Clark as to whether they had any interest in the property, with negative results, there was no showing that any such persons had any family connection with deceased. Absent that showing, it would be less than diligent merely to inquire with respect to names appearing as grantors in Mrs. Peters’ deed. The evidence falls short in supporting the testimony from two witnesses that there were no known heirs absent any reasonable and diligent inquiry with respect thereto. The state has waited about 35 years to begin this suit at a time when evidence may have become unavailable and memories dim concerning the relatives of Mrs. Peters. Although that is not conclusive against the state, it is a factor for consideration. State v. Williams, supra.

We rule that the state has failed to adduce sufficient proof to rebut the presumption that Mrs. Peters left heirs capable of inheriting from her. Daudt v. Musick, supra; State v. Williams, supra; and In Re Smith’s Estate, supra.

The judgment is reversed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

STORCKMAN, P. J., and EAGER, J., concur.

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


author: BARRETT, Commissioner.

text:
    Jennie WHITE, Plaintiff-Appellant, v. SOUTHERN PACIFIC COMPANY, a Corporation, Defendant-Respondent.
    No. 50486.
    Supreme Court of Missouri, Division No. 2.
    Jan. 11, 1965.

      Lindell R. Church, B. H. Clampett, Springfield, for appellant.
    Farrington & Curtis, Jack S. Curtis, Thomas G. Strong, Springfield, for respondent.
   BARRETT, Commissioner.

The question for determination upon this appeal is whether, as indicated by the trial court’s sustaining the respondent railroad’s motion and dismissing the appellant’s petition, the maintenance of this particular action in a Missouri court -constitutes an undue burden on interstate commerce.

The plaintiff, Jennie White, a resident of Missouri, was a passenger on the Southern Pacific’s train, on March 4, 1963, when it “left the track” near Northridge, California. To recover $30,000 damages for her resulting injuries Jennie instituted this action in the Circuit Court of Greene County, Missouri. The Southern Pacific Company is a Delaware corporation, has no railroad lines in Missouri, and no representatives in the state other than agents for the solicitation of traffic. The company is not qualified to do business in Missouri and has not consented to the institution of suits and the service of process in this jurisdiction. Since Jennie was a resident of Missouri service of process was had upon the railroad by mail and by attachment, the St. Louis-San Franciso Railway Company, admittedly owing and having in possession a traffic balance of $200,000 due Southern Pacific, was summoned as garnishee.

After process had been thus served Southern Pacific filed a motion to quash the attachment and service of process and to dismiss the action upon the sole ground and assignment that the maintenance of the action and the court’s exercise of jurisdiction “would unreasonably obstruct and burden interstate commerce, in violation of the Commerce Clause of the United States Constitution.” In support of its motion the railroad filed an affidavit stating that its only contact with Missouri was “the solicitation of freight and passenger traffic business over its lines in other states.” As to the plaintiff’s suit, these are the facts relied on to show that the maintenance of the action in Greene County would unduly burden interstate commerce: the place of the accident in California is more than 2000 miles distant from Springfield, a proper defense would require the presence in Springfield of 40 witnesses, 29 of whom are railroad employees, that their travel expense would approximate $8000 and living expense would approximate $600 a day, that the absence of employee witnesses would result in a large salary loss to the railroad and would create delays and interruptions in its transportation business.

The plaintiff’s counteraffidavit stated that she had been a resident of Missouri “her entire life” and resided in Greene County at the time of the derailment and the institution of this suit, that as a result of her injuries she was hospitalized in Burge-Protestant Hospital and had been treated for her injuries by two Springfield doctors whose testimony was necessary in her suit.

As stated, upon these pleas and these facts the court quashed the service and dismissed the plaintiff’s action.

At the outset and by way of discrimination it is necessary to carefully note some problems that are not involved upon this appeal. The parties do not rely upon and have not briefed and argued the applicability of the discretionary doctrine of forum non conveniens (Elliott v. Johnston, 365 Mo. 881, 292 S.W.2d 589; Annotation 43 A.L.R.2d 774), even though the problem has been discussed in some of the cases dealing with the question of undue burden on interstate commerce. Kilpatrick v. Texas & P. Ry. Co., 5 Cir., 166 F.2d 788, and see particularly Annotation 43 A.L.R.2d 774, “Power of state or state court to decline jurisdiction of action under Federal Employers’ Liability Act.” Furthermore, in this action the railroad does not challenge the court’s jurisdiction of the subject matter, a transitory tort action, and it does not question the validity of the service of process or of the attachment and garnishment, all problems sometimes injected into these cases. Cases related to these matters are conveniently collected in the Annotations 46 A.L.R. 570, 95 A.L.R. 1478 “Foreign transportation company as subject to service of process in state in which it merely solicits interstate or extra-state business;” 96 A.L.R. 366 “Service of process upon actual agent of foreign corporation in action based on transactions out of state,” and, finally, annotating a Missouri case relied on by the parties, 85 A.L.R. 1395 “Attachment or garnishment as interference with foreign or interstate commerce.” These particular subjects are noted in passing to point up the fact that the single question involved here is whether in the noted circumstances the exercise of jurisdiction and the maintenance of this action is an undue burden on interstate commerce.

There is no readily available “verbal formula” for the solution of the problem, each case is considered upon its particular facts, the authoritative guide being the prior decisions of the Supreme Court of the United States. Canadian Pacific Railway Co. v. Sullivan, 1 Cir., 126 F. 2d 43, 438. By way of generalization, however, prior decisions have considered the presence and concurrence of certain factors, balancing the relevant interests of the parties, and “if the connection of the forum state with the litigation is too attenuated” the burden on interstate commerce may be unreasonable. “State Court Jurisdiction” 73 Har.L.R. 909, 983-987; Annotation 104 A.L.R. 1075 “Assumption of jurisdiction by court as violation of commerce clause.” Some of the factors usually stressed are the residence of the parties, the nature of the defendant’s business and the place where conducted, and the place where the injury occurred and the cause of action arose. In connection with the significant factor of the residence of the plaintiff in the forum state, as here, there is the fact that the tort action is transitory and there is the settled state policy of affording, if possible, a forum for its residents. But is it not necessary in the circumstances of this appeal to further consider the factors or to indicate the presence or absence of particularly impressive “local incidents” upon this record.

In connection with the usual criteria it is necessary to note that the cases in the federal courts are in irreconcilable conflict and despite the fact that “a trend is clearly discernible toward expanding the permissible scope of state jurisdiction over foreign corporations and other nonresidents” (McGee v. International Life Ins. Co., 355 U.S. 220, 222, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, 226), the Supreme Court of the United States has not been confronted with an undue burden on interstate commerce case since 1934, International Milling Co. v. Columbia Transportation Co., 292 U.S. 511, 54 S.Ct. 797, 78 L.Ed. 1396. While the cases have not been satisfyingly reconciled they have been rationalized on several occasions, once by a very distinguished district court. In Bohn v. Norfolk & W. Ry. Co., D.C., 22 F.Supp. 481, the cases coming after Davis v. Farmers’ Co-Operative Equity Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996, were noted and those denying the exercise of jurisdiction (Atchison, T. & S. F. Ry. Co. v. Wells, 265 U.S. 101, 44 S.Ct. 469, 68 L.Ed. 928, and Denver & R. G. W. R. Co. v. Terte, 284 U.S. 284, 52 S.Ct. 152, 76 L.Ed. 295) were contrasted with those permitting jurisdiction (State ex rel. St. Louis B. & M. R. Co. v. Taylor, 266 U.S. 200, 45 S.Ct. 47, 69 L.Ed. 247, and International Milling Co. v. Columbia Transportation Co., supra), and it was held that the local incident alone of residence was not a sufficiently significant factor in and of itself to support an attachment and jurisdiction in a personal injury action. It is interesting to note that most of the relevant Supreme Court cases arose in Missouri and most of them were written or concurred in by Mr. Justice Brandéis. In addition to the Bohn case, the annotation and the law review article for other rationalizations and conflicting decisions see Western Smelting & Refining Co. v. Pennsylvania Railroad Co., D.C., 81 F.Supp. 494, and Zuber v. Pennsylvania R. Co., D.C., 82 F.Supp. 670.

The usual criteria and cases have been noted in this rather tentative manner to indicate to the parties that their contentions have not been ignored. There has been no attempt at detailed analysis or independent application of rules and doctrine because in 1955 this court in a case in which the respondent Southern Pacific was a party delivered an opinion which, while questioned in at least one respect (28 Mo.L.R. 336, 371-372), governs in principle if not in fact the disposition of this appeal, Hayman v. Southern Pacific Co., Mo., 278 S.W.2d 749. There Hayman, a resident of Missouri, employed as a brakeman by Southern Pacific was injured in California but instituted his suit in Missouri under the Federal Employers’ Liability Act. It is not necessary to further detail the facts in that case, all the cases heretofore noted in this opinion were collected, and it was held that the maintenance of the action in Missouri would constitute an undue burden on interstate commerce. Consequently the judgment here is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

STORCKMAN, P. J., and EAGER, J., concur.

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


text:
    Harry Austin HEWITT, a Minor, by His Next Friend and Natural Guardian, Gerald Lester Hewitt, Plaintiff-Appellant, v. Dr. Edwin C. MASTERS and Bess Masters, Defendants-Respondents.
    No. 50307.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.
    Modified on Courts own Motion Jan. 11, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 11, 1965.

      Dalton & Treasure, Kennett, for appellant.
    Elvis A. Mooney, Briney & Welborn, Joe Welborn, James E. Spain, Bloomfield, for respondents.
   HENRY J. WESTHUES, Special Commissioner.

Plaintiff Harry Austin Hewitt, a minor, by his natural guardian, Gerald Lester Hewitt, filed this suit against Dr. Edwin C. Masters and his wife, Bess Masters, to recover damages in the amount of $150,000 for personal injuries sustained when a car driven by Dr. Masters collided with the rear of a Ford car. A trial resulted in a verdict in favor of the defendants. A motion for new trial was overruled and plaintiff appealed.

(We shall refer to the parties as plaintiff and defendants throughout the opinion.)

On this appeal, plaintiff’s sole contention is that instruction No. 4, given by the trial court at defendants’ request, was erroneous for the reason that it imposed on plaintiff the exercise of the highest degree of care; further, that the instruction assumed facts which were in dispute.

The record discloses that there was a sharp conflict in the evidence with reference to a number of issues of fact, while many other facts were not in dispute. Those facts not in dispute were: On the afternoon of July 18, 1961, Gerald Lester Hewitt and his son, the plaintiff, left Malden, Missouri, where they lived, in a Dodge truck for the purpose of picking up a' Ford car which was stranded near Dutchtown on Highway 25. When they reached the point where the Ford was located, the Ford was hitched to the rear of the truck by a chain which was run through an iron pipe about S feet in length. On the return trip toward Malden, the father drove the pickup truck and plaintiff occupied and steered the towed Ford. On the way south on Highway 25, two stops were made to check the hitch, lights, and other parts of the vehicles. The final stop was made at a point about 2 miles north of Aquilla, Missouri, on the south slope of a hill. The purpose of this stop, as testified to by Gerald Lester Hewitt and plaintiff, was that the father wished to advise his son about steering the Ford, particularly about the use of the brakes so as to keep the towed car from jerking when passing over the hills to the south. Mr. Hewitt alighted from his truck and went between the truck and the towed car where he was joined by his son, the plaintiff. While in that position and within 5 minutes after the vehicles were stopped, Dr. Masters’ car, coming from the north, struck the rear of the Ford. The impact caused the Ford to strike the truck. Hewitt and his son Harry Austin Hewitt were seriously injured. Each, among other injuries, had his legs broken. Plaintiff’s right leg was later amputated. After the wreck, the Ford was partially on the pavement and partially on the west shoulder. Dr. Masters’ car was standing in the .east lane headed north. The truck was out in a field several hundred- feet to the southwest. The defendant Dr. Masters went toward the crest of the hill and flagged down an approaching car. This car went into the ditch on the west side of the road a few feet north of the Ford. All parties agreed that it was raining or misting and that the shoulders of the road were wet.

The disputed issues were: Plaintiff’s evidence was that the truck and the towed Ford were stopped on the right shoulder of Highway 25 entirely off the pavement. Defendants’ evidence was that the truck and the Ford were stopped in the southbound lane on the pavement.

Plaintiff’s evidence was that the five lights on the rear of the truck and two lights on the rear of the Ford were burning. Defendants’ evidence was that no lights were burning on the truck or the Ford.

Plaintiff’s evidence was that the truck and Ford were stopped more than 300 feet south of the crest of the hill. Defendants’ evidence was that the vehicles were stopped not more than 120 feet south of the crest of the hill.

Defendants contended that the plaintiff was guilty of contributory negligence.

Instruction No. 4, of which plaintiff complains, reads as follows: “The Court instructs the jury that although you may find and believe from the evidence that one or both of the defendants was guilty of negligence as charged by plaintiff, yet, if you further find and believe from the evidence that the plaintiff was also guilty of negligence, in failing to exercise the highest degree of care in the operation of the said Ford car upon the highway, by reason of the fact that plaintiff negligently and carelessly failed to exercise the highest degree of care in stopping and bringing to a standstill said Ford car on the traveled portion of Highway 25 and that plaintiff carelessly and negligently failed to give a reasonable warning of the presence of said motor vehicle on said highway, if you so find, and if you further find and believe from the evidence that said act or acts of negligence, if you find such act(s) or acts to be negligence, directly caused, or contributed to cause, plaintiff’s injuries and the collision mentioned in evidence, then the plaintiff cannot recover and your verdict must be for the defendant.”

Plaintiff, in his brief, earnestly insists that he was not an operator of a motor vehicle within the meaning of Sec. 304.010, V.A.M.S. This section provides in part that “Every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise,the highest degree of care, * * Plaintiff says that the actual physical control of the Ford was in the driver of the Dodge pickup truck; that plaintiff could not have started or stopped the Ford; that the Ford was not in running order and was being moved under the power of the tow truck. The statute in question has been considered by the Missouri appellate courts in a variety of cases. It has been broadly construed. See Thaller v. Skinner & Kennedy Company, Mo., 315 S.W.2d 124, 1. c. 130 131 (7-10), and Teters v. Kansas City Public Service Company, Mo., 300 S.W.2d 511, 1. c. 516, 517 (7, 8) (9). It will be noted that in each of these cases the court held that the law requires a person operating a motor vehicle to exercise the highest degree of care for his own protection as well as for the protection of others. The case of Hay v. Ham, 364 S.W.2d 118 (Kansas City Court of Appeals), cited by plaintiff, does not support his contention. In that case, many authorities were considered. The court held that the statute should be given a reasonable interpretation. In State v. Edmonson, Mo., 371 S.W.2d 273, 1. c. 275 (2,3), it was held that a person steering a car which was being pushed by another was an operator of a car within the meaning of the statute.

In the case before us, Mr. Hewitt and his son, the plaintiff, were joint operators of the Dodge truck and the towed Ford. Hanks v. Landert, 37 Wash.2d 293, 223 P.2d 443, 30 A.L.R.2d 1012. The plaintiff, in moving the vehicle was steering the towed car. This seemed to be necessary. In fact, plaintiff’s evidence as well as that of his father was that the vehicles were stopped at the point of the collision for the very purpose of instructing the plaintiff as to the manner of operating the Ford. When the vehicles were stopped, whether on the shoulder or on the pavement, it was dark. Was it the duty of plaintiff to have the lights on the rear of his car burning? Was not that act or failure to act a part of the operation of the vehicles? The answer to both questions must be in the affirmative. Negligence in this respect would be considered a failure to exercise the highest degree of care. See authorities cited supra and Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 1. c. 478 (18), and cases there cited.

Plaintiff, in the brief, says that “Instruction No. 4 prejudicially assumed in three different places that the Ford automobile was on the highway which was a controverted fact.” We agree that the fact was controverted but do not agree that such fact was assumed in Instruction No. 4. The instruction, with reference to this subject matter, begins by stating, “if you further find and believe from the evidence * * * ” and ends with the words “if you so find.” The instruction, as we understand it, required the jury before authorizing a verdict for defendants to find as a fact that the Ford was stopped on the pavement and that no warning was given of its presence; further, the jury was required to find that such acts or failure to act constituted negligence. What we have said disposes of plaintiff’s similar contention with reference to the question of warning.

Plaintiff says the instruction failed to hypothesize facts necessary to define “reasonable warning.” Plaintiff cites the case of Phillips v. Stockman, supra, as authority. In that case, the collision with a parked car occurred in daylight and the court held that a verdict-directing instruction should have hypothesized facts which if true would have required the defendant to give a warning. Among such facts was that a setting sun was such as to blind the driver of an oncoming car. Judge Stone, in considering the question, stated, 351 S.W.2d 1, c. 475(15), “Under some circumstances (e. g., in dense fog, heavy rain, or blinding snow), the hazard or peril created by the stalling of a truck with any portion thereof on the paved roadway might be so flagrant and obvious as to charge the driver of the stalled vehicle with immediate knowledge thereof

In the case before us, all parties agreed that it was dark and raining. The controverted facts were: Plaintiff claimed the vehicles were not on the paved portion of the road and that the rear lights on the parked vehicles were burning. Defendants claimed the vehicles were on the pavement without any lights. Each party introduced evidence to support his contentions. The jury by its verdict found that defendants’ contentions were true.

We rule that the points briefed by plaintiff with reference to instruction No. 4 are without merit.

The judgment is affirmed.

PER CURIAM.

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    Haile JONES et al., Appellants, v. WATSON-WILSON TRANSPORTATION SYSTEM, INC., et al., Respondents.
    Nos. 50645-50649.
    Supreme Court of Missouri. Division No. 1.
    Dec. 14, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 11, 1965.
    Thaine Q. Blumer, Blumer & Wright, of counsel, Kansas City, for appellants.
    Joseph N. Miniace, Louis J. Pelofsky, James D. Shine, Jr., Kansas City, for respondents, H. Clay Ward and Roy L. Williams.

      Ivan E. Moody, Popham, Thompson, Popham, Trusty & Conway, of counsel, Kansas City, for respondent, Watson-Wilson Transportation System.
   HIGGINS, Commissioner.

These appeals are from a judgment dismissing appellants’ petitions for damages for alleged breach of a collective bargaining agreement. The prayer in each case is for $170,000 and this court has jurisdiction. Article V, Section 3, Missouri Constitution, V.A.M.S.; Section 477.040, RSMo 1959, V.A.M.S.

The petitions are identical and contain allegations which, taken as true, establish the facts that follow: Defendant-respondent Watson-Wilson Transportation System, Inc., operated a truck line in interstate commerce with a terminal in Kansas City, Missouri. Defendants-respondents H. Clay Ward and Roy L. Williams were the business agent and president, respectively, of Local 41, Teamsters Union, which represented members of Teamsters in the Kansas City area employed by Watson-Wilson. Prior to June 16, 1960, appellants were over-the-road truck drivers,' members of Local 961, Teamsters Union, Denver, Colorado, employed by Watson-Wilson, and domiciled at Denver, Colorado. Watson-Wilson and Locals 961 and 41 were parties to “Central States Area Over-the-Road Motor Freight Agreement” which provided, among other things, that Watson-Wilson could not change the domicile of appellants without the express consent of Local 961, the Central States Drivers’ Council, Watson-Wilson, and Local 41. On or about June 16, 1960, Watson-Wilson requested an operational change from Denver to Kansas City that would also cause a change in appellants’ domicile. Agreement was reached by which the operational change was made, and appellants were at that time granted the right to bid ten seats for runs from Kansas City to Denver with the home terminal being Kansas City, and with successful bidders to have preferred rights to those runs over members of Local 41. Absent such new provision, terminal seniority would prevail under the Central States Agreement. Pursuant to these negotiations and the authority of the Central States Agreement, appellants successfully bid the ten runs and transferred to Kansas City and into Local 41. Appellants allege that they were not permitted to enjoy their preferred rights due to conspiracy engaged in by respondents for the purpose of Watson-Wilson avoiding difficulty with Local 41. Appellants state that they have exhausted their administrative remedies under the contract by following the grievance procedure provided by the agreement, and claim damages “because of breach of contract.” Article 8 of the Central States Area Over-the-Road Motor Freight Agreement referred to in appellants’ petitions was before the court below without objection, and is as follows:

“CENTRAL STATES AREA OVER-THE-ROAD MOTOR FREIGHT AGREEMENT
“Article 8.
Grievance Machinery and Union Liability Section 1.
“The Union and the Employers agree that there shall be no strike, lockout, tie-up, or legal proceedings without first using all possible means of a settlement, as provided for in this Agreement, of any controversy which might arise. Disputes shall first be taken up between the Employer and the Local Union involved.
“Failing adjustment by these parties, the following procedure shall then apply:
“(a) Where a Joint State Committee, by a majority vote, settles a dispute, no appeal may be taken to the Joint Area Committee. Such a decision will be final and binding on both parties. Provided, however, that the Joint Area Committee shall have the right to review and reverse any decision of the Joint City or State Committee and make a final decision on the case if the Joint Area Committee has reason to believe the decision was not based on the facts as presented to the City or State Committee or in the possession of either party and not presented to the City or State Committee, provided further, however, that such action by the Joint Area Committee may be taken only by unanimous vote.”

Respondent Watson-Wilson and respondents Ward and Williams filed motions to dismiss for lack of jurisdiction over the subject matter in each case pursuant to Supreme Court Rule 55.31, V.A.M.R. The motions, although not identical, are the same in substance, and their pertinent portions are as follows;

“This court has no jurisdiction of the subject matter and alleged claims or cause of action asserted in the plaintiff’s petition herein for the following reasons:
“a. The subject matter of the plaintiff’s petition * * * constitute (s) a complaint (of unfair labor practice) that is solely within the jurisdiction of the National Labor Relations Board pursuant to Title 29 U.S.C. (National Labor Relations Act).
“b. Plaintiff alleges * * * that he ‘has exhausted his remedies under the contract by following the grievance procedure outlined therein.’ * * * Plaintiff’s grievance and remedies are exclusively subject to that collective bargaining agreement which covers all the parties to this action, and this court does not have jurisdiction of the subject matter.”

The trial court found that the motions to dismiss for lack of jurisdiction over subj ect matter should be sustained and, without specifying which ground was relied upon, ordered the petition in each case dismissed.

Appellants state but one point under' their ■“Points and Authorities,” and it is that ■“The Court Erred in Dismissing Plaintiffs’ Petitions for the Reason That the Court Does Have Jurisdiction of the Causes Herein Because the Dispute Does Not Involve an Unfair Labor Practice Within the Meaning of the National Labor Relations Act But Is an Action for Breach of Contract Caused by an Unlawful Conspiracy.” The argument portion of appellants’ brief is headed by the same charge, and appellants’ brief is limited to that single assignment of error. In their argument appellants state that “The sole question before the Court is whether or not the petitions filed herein allege an unfair labor practice within the meaning of the National Labor Relations Act and therefore the dispute is governed by the Act and that the Circuit Court * * * has no jurisdiction.” No error was assigned as to the second reason (b) contained in the motions upon which the trial court may have relied in dismissing the petitions.

In Hardy v. McNary, Mo., 351 S.W.2d 17, 20[1-3], we said: “Supreme Court Rule 83.05(a), V.A.M.R., requires that the brief of an appellant contain ‘The points relied on, which shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous.’ * * * In the absence of plain error affecting substantial rights within the meaning of Supreme Court Rule 79.-04 the appellate court does not rule on issues not properly preserved for review. It is the general rule of universal application that an appellate court will indulge in the presumption that the trial court’s action from which the appeal is taken was correct, and that appellant has the burden of affirmatively establishing the alleged error upon an appeal. Morris v. Willis, Mo. Sup., 338 S.W.2d 777, 780; James v. James, Mo.Sup., 248 S.W.2d 623; Davidson v. Hennegin, Mo.Sup., 304 S.W.2d 836; 5 C.J.S. Appeal and Error § 1533, p. 1025. Respondent does not have the burden or duty on appeal to establish the correctness of the judgment. Lakin v. Postal Life and Casualty Co., Mo.Sup., 316 S.W.2d 542, 70 A.L.R.2d 564.” See also Lubrication Engineers, Inc. v. Parkinson, Mo.App., 341 S.W,2d 876, 877[1-3],

With these principles in mind we can agree with appellants’ sole point as to grotind “a” of the motions, and must, nevertheless, sustain 'the ruling of the trial court on the presumption that the judgment of the trial court on the other and unattacked ground (b) was correct. Royster v. Baker, Mo., 365 S.W.2d 496, 498[1]. Appellants have not attempted to show wherein the court may have erred in sustaining the motions to dismiss on the second ground (b) contained in the motions. Appellants must, therefore, be held to have failed to meet their burden of demonstrating reversible error, and it is neither the duty nor the function of the appellate courts to do so for them.

The judgment of the trial court 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.


text:
    Robert SUNDERMEYER, Respondent, v. Raymond LENTZ and Armour Agricultural Chemical Company, Appellants.
    No. 50346.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 11, 1966.

      John L. Rooney, Rooney, Webbe & Davidson, William L. Mason, Jr., St. Louis, for respondent.
    Gerald D. Morris, St. Louis, for appellants.
   PRITCHARD, Commissioner.

' The automobile of plaintiff was struck in the rear by the truck of defendant,. Armour Agricultural Chemical Company, being operated by defendant, Lentz. Plaintiff recovered a $16,000 verdict Defendants appeal from the judgment entered in accordance with the verdict against them.

Defendants first say that plaintiff failed to make a submissible case against them. We shall, therefore, in following established procedure, set forth the facts in their light most favorable to plaintiff. We disregard defendants’ evidence except to the extent that it aids plaintiff. Terminal Warehouses of St. Joseph, Inc. v. Reiners, Mo., 371 S.W.2d 311, 312 [1], The following facts, which the jury reasonably could have found, bear upon plaintiff’s submitted hypothesis of his case in his Instruction No. 4 that Armour’s truck, being driven by Lentz, was following plaintiff more closely than was reasonably safe and prudent under the circumstances.

On October S, 1960, a clear day, between 8:30 and 8:45 a.m., plaintiff was driving west on Highway 66 to his work. Prior to the collision plaintiff had been moving continuously at a speed of about 40 miles per hour. When he was 300 to 400 feet east of the point of impact by the truck with the rear of his automobile, and while he was going upgrade to the crest of the hill before he reached the downslope where the collision occurred, plaintiff saw a school bus coming toward him. The school Idus had at its top two dark amber lights which were flashing back and forth. He continued to watch the bus; there was no traffic in front of him within the last 300 feet before the impact took place; and he was not then aware of any traffic behind him. Plaintiff was then traveling in the north lane of Highway 66, which was a dry concrete pavement of two lanes. There was a shoulder on plaintiff’s right about 10 feet wide. At the time plaintiff observed the bus it was 50 to 100 feet west of the point of impact. Plaintiff, then .took his foot off the accelerator of his automobile. Thereafter the school 'bus ■ came to a stop on the pavement.. -¡Plaintiff's speed then was 15 to 20 miles per hour and he was 50 to 100 feet from the point of impact There were three children (of witness, Mrs. Faller) standing by a driveway on the south side of the highway where the bus stopped to permit them to board it Plaintiff saw a “stop” signal facing him on the left side of the bus, at the level of the driver. Plaintiff applied his brakes when the school bus stopped and glanced in his rear-view mirror and saw some type of vehicle. He did not know what kind of vehicle it was or how far it was behind him.

Plaintiff brought his vehicle to a gradual halt and stopped opposite a driveway which was on the south side of the highway, or just a little east of it. Plaintiff sat there about 5 seconds and then received a terrific jolt from the rear. The jolt moved plaintiff forward 15 to 20 feet toward the center of the bus, but parallel to it. At the time of the collision, plaintiff had his foot on the brake. After the impact the driver of the truck which struck plaintiff’s vehicle came to the door thereof and identified himself as defendant, Raymond Lentz.

Interrogatories addressed to Armour were answered that Raymond B. Lentz was in its employ on October 5,1960. Lentz was making a delivery in Armour’s truck to one of its customers when the collision occurred. The truck Lentz was driving was a 1957 GMC, equipped with four-wheel hydraulic brakes in good condition.

Defendant Raymond Lentz testified at the trial that he was involved in a collision of a Chevrolet truck he was driving with the • 1958 Chevrolet automobile of plaintiff on October 5, 1960. He first saw the Chevrolet automobile ahead of him about two miles from the place of impact. Lentz remained behind plaintiff about 3 car lengths, 45 to 50 feet, for a majority of the time,- at a highest speed of 40 to 45 miles per hour. The school bus was seen by'Lentz near the- scene of the collision when-' it was still moving and Lentz was 200 to 250 feet away from it.' At that time 3 car lengths still separated the truck and plaintiff’s automobile, and Lentz was then moving at 30 miles per hour. According to Lentz, plaintiff was then going at about the same speed. Thereafter, Lentz noticed the stop lights on the school bus blinking on and off. He also saw some children standing alongside the road on the south side. He saw the lights of plaintiff’s automobile suddenly going on and its back end went upward. Plaintiff stopped before the school bus stopped, and when Lentz first saw plaintiff’s brake lights go on, he “slammed” on his truck brakes. Lentz was still 3 car lengths behind at a speed of 25 miles per hour. Lentz came into contact with plaintiff’s automobile at about 5 miles per hour, and moved plaintiff forward 5 or 6 feet. The truck bed was three fourths loaded with sacks of fertilizer. At 30 miles per hour Lentz could have stopped between 80 and 85 feet; 75 feet separated Lentz from the point of impact at the time he saw plaintiff’s lights go on. Plaintiff could have been stopped for 2 or 3 seconds before the impact.

Portions of Lentz’ deposition were offered by plaintiff and received in evidence as admissions against interest. Upon motion the trial court ruled that the offered portions of the deposition were admissions against defendant Lentz’ interest only, and so instructed the jury. See Davis v. Sedalia Yellow Cab Company, Mo.App., 280 S.W.2d 869, 871 [2], The pertinent parts of the deposition are that Lentz was driving a delivery truck, the bed of which was 14 feet long. He left Armour’s plant around 7:00 o’clock in the morning on October 5, 1960, with a truckload of fertilizer, described by him as a heavy load, being normal size 100 pound bags piled about 4 feet high and covering three fourths of the truck floor. Under the circumstances existing at the scene, Lentz could stop his truck in about 50 feet at his speed of 30 miles per hour. Plaintiff was stopped in a matter of seconds — 10 seconds— and plaintiff’s lights went on for that 10 seconds when he came to a stop. Lentz knew that plaintiff stopped because the school bus was there, and while he was applying the brakes on the truck he hit the rear of plaintiff’s automobile.

Mrs. Shirley Faller lived in a house adjoining the scene of the collision. She saw the truck and plaintiff’s automobile going along the highway at 40 miles per hour and with 3 car lengths between them. There was no change in the distance between the two vehicles at the time plaintiff started to slow down. Both the school bus and the automobile came to a stop at about the same spot. Mrs. Faller heard the screeching of tires or brakes, and witnessed the truck contacting the rear end of the automobile. She could see the driver of the truck starting to apply his brakes at a time when the vehicles were still 3 car lengths apart, and both vehicles were then traveling at a speed between 30 and 40 miles per hour; and plaintiff appeared to be not going to stop, but then he came to a sudden stop.

Defendants’ argument under their Point I by which they challenge the submis-sibility of plaintiff’s case is that plaintiff’s evidence was that he was stopped for 5 seconds before his automobile was struck by the truck; that this time establishes that Lentz, at his speed of 30 miles per hour, was 225 feet to the rear of plaintiff’s vehicle; that such distance (claimed to be conclusively established by plaintiff’s testimony) would not support the charge that Lentz followed plaintiff’s automobile more closely than was reasonably safe and prudent under the circumstances existing at the time; that plaintiff cannot take advantage of other evidence that Lentz was following 3 car lengths 'or 45 to 50 feet because that evidence is at war with his own testimony that he was stopped for 5 seconds; and that therefore plaintiff has not established the proximate cause of the collision as being that which was submitted in his verdict directing Instruction No. 4.

The rule is, as defendants contend, that a plaintiff may not have the benefit of evidence which contradicts or is at war with his own theory of the case. See Fisher v. Gunn, Mo., 270 S.W.2d 869, 874 [3-5]; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600, 604; and Elliott v. Wescoat, Mo., 336 S.W.2d 649, 651 [1,2]. No such situation, however, exists in this case. Plaintiff’s testimony that he was stopped abotit 5 seconds is an estimate only. He is not bound by such estimate of time. McDonough v. St. Louis Public Service Company, Mo., 350 S.W.2d 739, 744 [3], The jury could reject such estimate in view of what Lentz definitely testified to, and what Mrs. Faller corroborated, that he was 3 car lengths (45 to 50 feet) behind plaintiff at a speed of 30 miles per hour, it thus being incon.ceivable that Lentz at his speed would consume 5 seconds in traveling the distance, 75 feet, which separated Lentz from the point of impact at the time he saw plaintiff’s lights go on. At 30 miles per hour, Lentz was traveling at 44 feet per second. His testimony was that plaintiff was stopped 2 or 3 seconds before the impact. It would take Lentz 80 to 85 feet to stop the truck at his speed under the circumstances; but only 75 feet separated him from the point of impact.

The duty upon drivers of following vehicles is imposed by our statute, § 304.-017, RSMo 1959, V.A.M.S., the relevant portion of which is: “The driver of a vehicle other than those designated in section 304.044 shall not follow another vehicle more closely than is reasonably safe and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the roadway.” Plaintiff pleaded the violation of this .statutory duty in general terms, and there was no motion to make such pleading more .definite and certain. Lentz saw the school bus, still moving, when he was 200 to 250 feet away from the point of impact. He -.thereafter saw the stop lights on the bus blinking on and off, and the children standing by the side of the road waiting to board the bus. He was thus put on a reasonable notice that plaintiff would be likely to stop for the bus. Yet he continued to follow plaintiff 3 car lengths or 45 to 50 feet behind him at such speed that he could not, by his own testimony (and did not), stop short of the place where he struck plaintiff’s vehicle.

Considering all of the testimony: that of Lentz given at trial, his admissions in his deposition as against himself only; that of Mrs. Faller concerning the speed and distance between the two vehicles, together with all the other facts and circumstances in evidence, we hold that plaintiff made a submissible case against both defendants under said § 304.017. See Binion v. Armentrout, Mo., 333 S.W.2d 87, where it was held that a plaintiff (who was standing at the rear of a truck which had a flat tire and was parked as far as possible to the right on a two-lane pavement) made a submissible case under § 304.017 against defendant who was fol- ' lowing another automobile 2 car lengths behind it and at a speed of about 25 miles per hour. See also Gooch v. Avsco, Incorporated, Mo., 337 S.W.2d 245, where plaintiff submitted his case under the common-law duty (held to be no less in degree than the statutory duty under said § 304.-017) of defendants to exercise the highest degree of care in keeping a lookout to observe the automobile ahead and its movements, and in keeping the following vehicle under control, and at such distance behind, so that it would not run into the automobile ahead if it slowed down or stopped. The jury could reasonably conclude in this case that Lentz’ action in following plaintiff’s automobile 3 car lengths at a speed of 30 miles per hour, with other traffic, a loaded truck on a downslope was closer than was safe and prudent and the same constituted negligence which was the proximate cause of the collision. Point I is ruled against defendants.

Instruction No. 4, to which defendants "direct several complaints, is as follows:

“The Court instructs the jury that it is the law in this State that no driver ■shall follow another vehicle more closely than is reasonably safe and prudent under the circumstances existing at the time.
“Therefore, you are further instructed that if you find and believe from the ■ evidence that on the occasion shown to you in the evidence the plaintiff Robert Sundermeyer, was driving an automobile westwardly on the north side of U. S. Highway No. 66, if so, and approaching a point thereon opposite more or less the mailbox described in • evidence, if so, and if you further find that the defendants, by and through the • defendant Raymond Lentz driving the same, if so, were then and there operating a truck also westwardly on the -north side of said Highway, and if so, and behind or east of the automobile ■ driven by plaintiff, if so, and in the ■same lane for westbound traffic, if so, and if you further find that the auto-mobile driven by plaintiff came to a stop at said point, if so, and in the same lane for westbound traffic in which it 'had been so driven, if so, and if you further find that prior to the plaintiff’s . automobile so coming to a stop, if it did, the said truck had been so following it for some 500 feet, if so, and at a distance of approximately 45 feet behind it, if so, and at a speed of 30 miles an hour, if so, and if you further find that the said truck was then and there carrying the load described in the evidence, if so, and if you further find that in so following plaintiff’s automobile under • such circumstances, if he did, the driver ■ of defendants’ truck followed plaintiff’s .automobile more closely than was rea- ■ sonably safe and prudent under the cir- • cumstances existing at the time, and if you further find that said driver there- ' by failed to exercise the highest degree • of care, and i'f you further find that he was thereby negligent, and if you further find that plaintiff was not negligent in any respect submitted in these instructions, and if you further find that while plaintiff’s automobile was still so stopped, if so, a collision occurred between the front part of the truck and the rear part of the automobile, and if you further find that said collision was directly caused by the said negligence, if any, of the said driver of the truck, and if you further find that plaintiff sustained injury to his person as a direct result of said collision, then you are instructed that your verdict must be for the plaintiff, Robert Sun-dermeyer and against the defendants, Raymond Lentz and Armour Agricultural Chemical Company.”

The first of such complaints, emoodied in Point II, is that Instruction No. 4 did not properly state the law in its paragraph 1. That paragraph does not use the language of § 304.017, supra, in that the clause is used, “under the circumstances existing at the time” rather than the statutory words, “having due regard for the speed of such vehicle and the traffic upon and the condition of the roadway.” Under the statute, which defines the duty of the driver of a following vehicle, the matters for the jury in this case which bore upon the ultimate issue of whether Lentz followed more closely than was reasonably safe and prudent (so as to constitute negligence) were: (1) Plaintiff’s speed — about the same as Lentz, 30 miles per hour (plaintiff testified that after he lifted his foot from the accelerator, his speed was 15 to 20 miles per hour) ; (2) the existence of the traffic upon the roadway — Armour’s truck, plaintiff’s automobile, and the oncoming slowing school bus with its stop lights blinking on and off; and (3) the condition of the roadway — the two-lane, dry concrete pavement on the downslope where the collision (and the following of plaintiff by Lentz) occurred. There was no divergence of these facts which were to be adverted to by the jury in determining whether Lentz was following so closely as to constitute negligence. No others are mentioned in the statute as elements of negligence. It was unnecessary to make a hypothesis of these uncontroverted facts in either the preliminary statement of the statutory law (which we deem to he substantially in the language of the statute and therefore sufficient, Miles v. Gaddy, Mo., 357 S.W.2d 897, 902 [5], and May v. Bradford, Mo., 369 S.W.2d 225, 228 [7]), or in the subsequent hypothesis of facts submitted for the jury to find, Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496, 500 [2], and the concurring opinion appearing at page 502 thereof. See also Welch v. McNeely, Mo., 269 S.W.2d 871, 877 [15, 16]. The jury was not misled by the use of the words “under such circumstances” and “under the circumstances existing at the time” as they variously appear in Instruction No. 4. Block v. Rackers, Mo., 256 S.W.2d 760, 763 [4]. The jury was not given a roving commission to find any negligent act of Lentz upon which to base a verdict. It was limited to a finding that Lentz, in following plaintiff approximately 45 feet and at a speed of 30 miles per hour, was negligent under the circumstances existing at the time.

Defendants cite Joffe v. Beatrice Foods Company, Mo.App., 341 S.W.2d 880, 884, upon the propositions that the mere fact that one vehicle is moving in close proximity to, and keeping up with another, does not of itself constitute negligence; and that the driver of a following vehicle is not charged with anticipating an emergency created by the negligence of the plaintiff under circumstances that could not have been reasonably anticipated by him as a driver exercising the highest degree of care. Defendants do not suggest how these propositions affect the propriety of the giving of Instruction No. 4 to the jury. It would seem that, if established as a matter of law, an unanticipated negligent act of the driver of a forward vehicle would relate to the submissibility of his case. If not so established, then the hypothesis of such negligent act would relate to a defense to be submitted in an instruction to the jury. Such hypothesis was here made that plaintiff made a sudden stop without an adequate and timely warning in defendants’ given Instructions Nos. 5 and 6. Whether plaintiff committed an unanticipated negligent act in this case was for the jury to determine.

By Point III, defendants say that the court erred in giving Instruction No. 4 because “(A) Plaintiff’s own testimony, by which he is bound, was that he made a gradual stop and had been stopped 5 seconds when he was struck from behind by defendant’s truck”; that such theory is at war with the submitted theory that defendant was negligent for following more closely than was reasonably safe and prudent. We have discussed the matter that plaintiff was not bound by his estimate of the time he was stopped, and that under all the other facts and circumstances — the distance between the vehicles, their speeds, and the condition of the roadway, the jury could find that Lentz was following more closely than was safe and prudent. The contention is without merit and is overruled.

Under “(B)” of Point III, defendants complain that Instruction No. 4 required the jury to find that “plaintiff came to a stop” without qualifying the kind of stop plaintiff made or the length of time plaintiff was stopped. The argument is that plaintiff testified that he made a gradual stop and was stopped 5 seconds before the collision, and defendants’ evidence showed that he made a sudden stop on the traveled portion of the roadway. Say the defendants, the instruction was fatally defective in that it permitted a verdict for plaintiff regardless of which version the jury believed. Defendants cite Doggendorf v. St. Louis Public Service Company, Mo.App., 333 S.W. 2d 302. That case may be distinguished in that it submitted upon the rear-end collision doctrine defined as “ * * * the doctrine or rule of law which recognizes that if one person has his vehicle in a portion of the highway where he should have it or is entitled to have it in view of the course in which he is proceeding, and some other person traveling behind him in the same direction overtakes him and permits his vehicle to run into the rear of the one ahead, the proof of a collision under such circumstances makes out a prima facie case of specific negligence against such other person in charge of the overtaking vehicle.” Hughes v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 360, 362 [3] ; Jones v. Central States Oil Co., 350 Mo. 91, 164 S. W.2d 914, 917 [2], In the Doggendorf case the rear-end doctrine was extended to a vehicle which was at rest, but an instruction was condemned because it failed to submit to the jury a hypothesis of the length of time it was stopped, where that time was in sharp dispute. Here, the negligence submitted was that Lentz was following more closely than was reasonably safe and prudent. That was the gravamen of the negligence charged, and it is not an element of that negligence under § 304.017, supra, that plaintiff was stopped or for how long. This statute, setting forth the duty of a following motorist, is but a codification of the common law. See 60 C.J.S. Motor Vehicles § 323, pp. 750, 751, and the there cited case of Peterson v. Minneapolis St. Ry. Co., 226 Minn. 27, 31 N.W.2d 905, where a statute of the same wording as said § 304.017 was held to be a codification of the common law of that state. See also 85 A.L.R.2d 617. It is with that premise that the case of Gooch v. Avsco, Incorporated, supra, becomes here applicable. That case involved a common-law submission of the duty of the driver of an automobile following another automobile to keep his automobile a sufficient distance behind the automobile in front of him to avoid colliding with it if it slowed or stopped. At loe. cit. 337 S.W.2d 249 [3, 4], the court stated, “It is also the common law duty of a motorist in tlie rear of another vehicle to operate his vehicle in such a position and to have it under such control as to be able to stop or take other appropriate measure to prevent running into the car ahead of it if the latter comes to a sudden -slowing or stcfp; and failure of the operator of the vehicle in the rear to exercise the highest degree of care in those respects is negligence. (Citing cases)” (Emphasis added.) Although plaintiff’s evidence tended to show that he slowed and came to a stop gradually, and defendant Lentz’ evidence tended to show that he stopped suddenly, under plaintiff’s theory that Lentz was following more closely than was prudent and safe under the circumstances, plaintiff was not required, as an element of his claim to relief, to submit to the jury for a finding the manner in which he stopped his automobile. In Hooper v. Conrad, supra, loe. cit. 260 S.W. 2d 500, the quote is made, “ ‘The Yates case (Yates v. Manchester, 358 Mo. 894, 217 S. W.2d 541) and cases following the Yates case are not to be read or construed as requiring the submission of facts which are not necessary or essential to a finding upon the issue or issues of negligence specifically submitted. Le Grand v. U-Drive-It Co., Mo.Sup., 247 S.W.2d 706.’” (Parenthetical citation added.) As stated, defendants’ instructions submitted that plaintiff stopped suddenly, without a timely, adequate warning, as a defense. Plaintiff’s Instruction No. 4 properly negatived his own contributory negligence “in any respect submitted in these instructions.” Nor does Point III (C), under which the argument is that Instruction No. 4 gave to the jury a roving commission and allowed it to base a verdict on speculation or surmise, avail defendants. The hypothesis was, as stated above, sufficient for a finding of the statutory standard of duty, and omission thereof, of Lentz in following plaintiff.

By Point III(D), defendants say that the submission in Instruction No. 4, that the truck “was then and there carrying the load described in evidence,” was prejudicial error. The contention, is that there was no substantial evidence in the case upon which the jury could decide what the load was; that the required finding was unsupported by the evidence and constituted a comment on the evidence. At the trial, Lentz testified that the truck bed was three fourths loaded with sacks of fertilizer. On deposition (admissible against Lentz only), he testified that he had a truckload of fertilizer, a heavy load, being normal size 100 pound bags piled about 4 feet high and covering three fourths of the truck floor. On direct examination at the trial he testified that at his speed of 30 miles per hour he could have stopped between 80 to 85 feet; on deposition, under the circumstances at the scene, he testified that he could have stopped in 50 feet at his speed of 30 miles per hour. The jury was adequately advised in Instruction No. 4 as to circumstance of the load on the truck to find the ultimate act of negligence submitted: following more closely than was safe and prudent under the circumstances existing. Point III and all of its subdivisions are overruled.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.