text:
    Paul V. PAYNE, Jr., Lloyd Randall Hill, and Robert Lloyd Hill, appellants, v. ST. LOUIS UNION TRUST COMPANY, a Corporation, St. Louis Union Trust Company and Edward J. Steube, Co-Executors Under the Will of Susan Hill, Deceased, Respondents.
    No. 50539.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 10, 1965.

      Thomas M. Gioia, St. Louis, for appellants.
    T. S. McPheeters, Jr., and R. H. McRob-erts, Jr., St. Louis (Bryan, Cave, McPhee-ters & McRoberts, St. Louis, of counsel), for respondent, St. Louis Union Trust Company, a Corporation.
    David Baer, Jr., and Doris J. Banta, St. Louis (Carter, Bull, Baer, Presberg, Lee & Stanafd, St. Louis, of counsel), for respondents, St. Louis Union Trust Company and Edward J. Steube, Co-Executors Under the Will of Susan Hill, Deceased.
   HIGGINS, Commissioner.

Paul V. Payne, Jr., Lloyd Randall Hill, and Robert Lloyd Hill brought separate actions in equity for at least $25,000 each against St. Louis Union Trust Company, a corporation, and St. Louis Union Trust Company and Edward J. Steube, executors under the will of Susan Hill, deceased. The suits were consolidated by consent; the court sustained defendants’ motions to dismiss for failure _to state a cause of action and on the ground of res judicata, and entered judgment of dismissal.

Respondents have moved to dismiss this appeal for appellants’ alleged failure to set forth points relied on in the manner prescribed by Civil Rule 83.05(a), V.A.M.R. Appellants’ brief does fall short in this respect ; however, this is an equity suit which we review “upon both the law and the evidence” and “the judgment shall not be set aside unless clearly erroneous,” Civil Rule 73.01(d), V.A.M.R., and we have no difficulty discerning appellants’ complaint, i. e., that the court erred in dismissing the petitions on the grounds stated in the motions to dismiss. The motion is overruled.

We determine our statement of facts from the pleadings. Frank W. Hill, Sr., died testate in 1918, leaving his estate to defendant, St. Louis Union Trust Company, in trust for his five children, Edna Schwarz, Kate Comins, Susan Hill, Mabel Hill, and Frank W. Hill, Jr. The trust was a spendthrift trust, and the trustee was directed to accumulate net income for ten years; then to divide the estate into five equal shares (an equal share for each child) and pay the net income to the children for life and, upon the death of any child, to distribute that share free of trust to the heirs at law of that child.

Frank W. Hill, Jr., died March 31, 1930, leaving two adult adopted sons, Lloyd Randall Hill (a plaintiff here) and Paul Vasquez Hill (father of plaintiffs Paul V. Payne, Jr., and Robert Lloyd Hill), and his widow Mary (now Mary Hill Potts) surviving. Paul Vasquez Hill died in 1950. In 1935 the two adopted sons received the one-fifth share of Frank W. Hill, Jr., but only after a suit, No. 155096-B in the Circuit Court of the City of St. Louis, brought by the trustee to construe the will of Frank W. Hill, Sr. Upon appeal in that suit it was determined that the adopted sons of Frank W. Hill, Jr., were the heirs of Frank W. Hill, Jr., and entitled to receive his share of the trust estate. St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685. It was also decided there that the spendthrift provision of the trust applied only to the life estates of the testator’s children, and not to the remainder after the death of any such child. 76 S.W.2d 1. c. 689 [8].

While Cause No. 155096-B was pending, the children of Frank W. Hill, Sr., instituted a suit, No. 209,702 in the Circuit Court of the City of St. Louis, which attacked the claim of the adopted sons to the share of their adoptive father by seeking to set aside the adoption. That suit was settled March 25, 1935, after execution of an “Agreement for Settlement of Controversies” between the adopted sons of Frank W. Hill, Jr., the remaining children of Frank W. Hill, Sr., and the widow of Frank W. Hill, Jr. By this agreement Lloyd Randall Hill and Paul Vasquez Hill relinquished any future rights they may have had in the trust estate and as prospective heirs at law of the surviving children, Edna Schwarz, Kate Comins, Susan Hill, and Mabel Hill, who also relinquished any rights they had in the share of their brother, Frank W. Hill, Jr.

Kate Comins died in 1954 and her share was distributed free of trust to her son, Waldo Hunter Comins, Jr.

Mabel Hill died in 1956, single and childless, and defendant trustee distributed sums to plaintiffs which they now allege to be less than their entitlements in that share. Prior to that distribution, plaintiffs entered into written agreement with all the parties then interested in the trust estate of Frank W. Hill, Sr., which recited the doubt of the trustees as to the persons entitled to distribution of the share of Mabel Hill, deceased, and as to the amounts of such entitlements, the conflicting claims of the parties, and their mutual desire to settle all claims. The parties agreed that the trustee would institute suit for construction of the will of Frank W. Hill, Sr., for construction of the “Agreement for Settlement of Controversies” of March 25, 1935, and for construction and interpretation of the decree in Cause No. 155096-B in the Circuit Court of the City of St. Louis, which was entered pursuant to the mandate in 76 S.W.2d 685, “to the end that all parties hereto may endeavor to have determined whether the parties of the second part (our plaintiffs) * * * have any interest in the * * * share * * * of Mabel Hill, and whether the said parties * * * have, or may at any future time have, any interest in any part of any other share of the trust estate under the will of Frank W. Hill (Sr.), deceased, upon the death of any of the remaining life tenants * * (Italics ours.) The parties also agreed to a distribution of the share of Mabel Hill and, “irrespective of any judgment, order or decree * * * as a result * * * of the intended suit * * * to be bound by * * * this Agreement, and * * * to accept an amount equal to their respective applicable percentages * * * in full payment, satisfaction, discharge and settlement of any and all claims that they may now have in * * * the share of Mabel Hill or may hereafter have in * * any other share of the trust estate * * * of Frank W. Hill (Sr.), deceased, to which they may become entitled as a result of * * * any judgment, order or decree * * Lloyd Randall Hill, Robert Lloyd Hill and Paul V. Payne, Jr., further waived all other right, title and interest that they then had or might in the future have in any part of the trust estate of Frank W. Hill, Sr., deceased.

The suit contemplated by the above agreement was filed July 24, 1957, as Cause No. 2601-E in the Circuit Court of the City of St. Louis. All parties (including plaintiffs here) waived summons, entered appearance, and filed answers. The joint separate answer of Waldo H. Comins, Jr., Edna Hill Schwarz, and Susan Hill, and the joint separate answer of Lloyd Randall Hill, Robert Lloyd Hill, and Paul Vasquez Payne, Jr., were in conflict with each other and with the agreement and petition in respect to interests and entitlements claimed. All parties were sui juris and were represented by counsel. Evidence was heard August 9, 1957, after which the court there found, among other things, the facts and matters recited in this statement of facts, including the existence of controversies between the trustee and the defendants as to the intent and construction of the will of Frank W. Hill, Sr., of the Agreement for Settlement of Controversies, and of the order in Cause No. 155096-B; and, in respect to those controversies, “that although the Circuit Court of the City of St. Louis, by its decree in Cause # 155096-B determined that Lloyd Randall Hill and Paul Vasquez Hill were the heirs-at-law of Frank W. Hill, Jr., the defendants Lloyd Randall Hill, Robert Lloyd Hill, Mary Hill Potts and Paul Vasquez Payne, Jr., and those claiming under them are not heirs-at-law of Mabel Hill, Edna Hill Schwarz or Susan Hill, and that defendants Lloyd Randall Hill, Robert Lloyd Hill, Mary Hill Potts and Paul Vasquez Payne, Jr., have m interest in that share of the Prank W„ HM, Sr., trust heretofore held for the benefit of Mabel Hill; and that defendants Lloyd RandaU Hill, Robert Lloyd Hill, Mary Hill Potts, and Paul Vasquez Payne, Jr., have no present or expectant interest in and to those shares of the Frank W. Hill, Sr., trust now held for the benefit of Edna Hill Schwarz and Susan Hill.” (Italics ours.) That court also determined that all necessary parties had been joined; that they were subject to the jurisdiction of the court; that the court had jurisdiction to determine the issues raised by the pleadings, and that the decree would bind all parties interested in the trust estate created by Frank W. Hill, Sr. No motion for new trial was filed and no appeal was taken from the findings and decree in Cause No. 2601-E.

By these suits appellants seek to recover distribution in the trust estate of Frank W. Hill, Sr., from the shares of Mabel Hill, of Edna Schwarz, who died January 19, 1960, and of Susan Hill, who died January 19, 1962, all without lineal descendants, such shares having been distributed as interests were determined by the decree in Cause No. 2601-E. Assuming that plaintiffs stated a cause of action here, we proceed to determine whether such action is barred by the previous judgment in Cause 2601-E. The gist of plaintiffs’ contentions is that the decree in Cause 2601-E was void and could not, therefore, operate as a bar to this action.

In support of their position, appellants say that the court could not apply res judi-cata to their petitions because the trust in evidence contained a spendthrift clause; that the agreement of the parties was contrary to that provision, and that the decree in Cause 2601-E was the result of such agreement and therefore occasioned an indirect result which could not have been accomplished directly by agreement.

The record belies any charge that the decree in Cause 2601-E was by consent, pursuant to stipulation, or was an embodiment of an agreement of the parties. The agreement there was to seek a judgment of the court on the matters submitted to it, and they hedged the possible consequences of that judgment by further agreeing to take certain payments irrespective of the court’s determination of their interests, thus recognizing that the court might enter a decree contrary to the anticipation of some party. The decree itself also belies any charges of agreement or consent because it shows on its face to have been the result of a judicial hearing and determination.

Even if matters of agreement were present they would not invalidate the valid and binding effect of the decree if it was otherwise valid. This principle was well stated in Owen v. City of Branson, Mo.App., 305 S.W.2d 492, 497 [2,3]: “Judgments (including judgments by agreement) are conclusive of the matters adjudicated and are not subject to collateral attack except upon jurisdictional grounds. Freeman on Judgments, Sth Ed., vol. 3, § 1350, p. 2773; Drainage District No. 1 Reformed, of Stoddard County v. Matthews, 361 Mo. 286, 234 S.W.2d 567; see La Presto v. La Presto, Mo., 285 S.W.2d 568, 570, and cases cited; * * * (a)nd such a judgment, even though erroneous, is a bar to reliti-gation (in a later suit) of the issues so determined under the doctrine of collateral estoppel and res judicata. 50 C.J.S. Judgments § 630, p. 55; * * *."

We cannot view the pleadings in Cause 2601-E as a request for permission to alienate interests in a spendthrift trust or as a request for approval of an agreement to alienate such interests. Neither does the decree there provide for alienation of such interests when by it the court decides only that plaintiffs have no further interest in certain shares of the Frank W. Hill, Sr., trust. For this reason, we are not concerned here with the general proposition that a spendthrift trust cannot be alienated by the beneficiary during the term of the trust or with any question of whether alienation of interests in a spendthrift trust can be accomplished by court approval of an agreement to alienate such interests.

Appellants say also that since their adoption was admitted, their interests were a matter of law and the decree in 2601-E which undertook to determine their interests in the distributive shares of their adoptive collaterals was void on its face, and they are therefore entitled -to maintain the present action.

The findings preceding the judgment appealed from were that the previous decree of August 9, 1957, in Cause 2601-E was lawful, valid and binding; that plaintiffs were parties to that decree; that no misrepresentations were made to induce them to enter into the agreement; that the spendthrift clause in the trust is not applicable to present plaintiffs; and that plaintiffs also were guilty of laches. Accordingly, the court ordered plaintiffs’ petitions dismissed. Plaintiffs do not say that a valid decree would not be res judicata. There is no contention that the court in 2601-E lacked jurisdiction as to parties or subject matter, and we have previously noted that all parties filed answers in which they urged conflicting positions as to rights and entitlements. There are no claims that plaintiffs’ participation in 2601-E was a result of fraud, mistake, duress or misrepresentation, and none of the parties were under legal disability. In this posture the case is analogous to Rivard v. Missouri Pac. Ry. Co., 257 Mo. 135, 165 S.W. 763. In that case plaintiffs’ predecessor executed a deed to an undivided interest in land. The grantees sued the grantor to correct a mistake in the deed; the court decreed the correction, and there was no appeal. Ultimately, defendant came into possession of the land in question and the heirs of the grantor brought suit to recover the value of the land. The heirs contended that the decree re-forming the deed was void because a prior decision of the supreme court had announced a legal doctrine contrary to that applied in the deed correction case. We quote at length from that opinion:

“The crucial question in the case at bar is, not whether the decree correcting the married woman’s deed followed the ruling in Shroyer v. Nickell, supra (55 Mo. 264 1. c. 267), but whether the trial court, in refusing to apply that ruling, acted without any jurisdiction of the subject-matter and the parties, or erroneously exercised a lawful jurisdiction? The failure to distinguish between ‘the erroneous exercise of jurisdiction’ and ‘the want of jurisdiction’ is a fruitful source of confusion and errancy of decision. In the first case the errors of the trial court can only be corrected by appeal or writ of error. In the last case its judgments are void, and may be assailed by indirect as well as direct attack. A court is possessed of jurisdiction when it is permitted by the policy of the law to hear and determine cases of the same nature as the one with respect to which the complaint is made, and where it has jurisdiction of the persons of the parties to the suit. The judgment of the trial court lacking either of those essentials is open to any form of attack. It follows that the judgment of a court of general jurisdiction, with the parties before it, and with power to grant or refuse relief in the ease presented, though contrary to law as expressed in the decisions of the Supreme Court or the terms of a statute, is at most only an erroneous exercise of jurisdiction, and as such is impregnable to an assault in a collateral proceeding.
“In the matter in hand the trial court had jurisdiction in the statutory mode of the grantees in the deed, with full power to determine the cause of action stated in the petition filed. That its decree correcting the description of the land was opposed to the ruling of this court in Shroyer v. Nickell, supra, and the case following it did not oust it from its rightful jurisdiction of the case presented, and its judgment, however erroneous, under the decisions of this court at that time, not having been appealed from or brought up for review by writ of error, is conclusive on the parties thereto and all persons in privity with them.
“Plaintiffs in this case have no other or higher claim to relief than was had by their mother, and, as her nonaetion against the decree was a complete bar to her, it is equally so against them. We hold that the decree under the agreed statement of facts in this case was not void nor open to attack below, and that it shut off any claim on the part of plaintiff for the land to which defendant acquired title through deed of their mother as corrected by said decree.” 257 Mo. 1. c. 167, 165 S.W. 1. c. 770.

In United States ex rel. and to Use of First Nat. Bank v. Lufcy, 329 Mo. 1224, 49 S.W.2d 8, 14 [7,8], we said: “It is a familiar principle of the doctrine of res judi-cata that even though a judgment may be erroneous, (not void) so that it might have been reversed on appeal, it is nevertheless effective as a bar to further suits. * * * It is also well settled that a former judgment is a bar, not only as to all matters which were raised, but also as to all defenses which could have been raised.” See also State ex rel. Metropolitan Life Ins. Co. v. Hughes, 347 Mo. 549, 148 S.W.2d 576, 577 [1,2].

Plaintiffs here have not directed us to any case which holds a decree similar to the decree in 2601-E to be void. We are, instead, cited to certain cases which discuss adoptive and inheritance rights. Those authorities hold that a natural parent has no right of inheritance from his child after that child has been lawfully adopted, Shepherd v. Murphy, 332 Mo. 1176, 61 S.W.2d 746; that adopted children may not inherit from their natural grandparent, Wailes v. Curators of Central College, 363 Mo. 932, 254 S.W.2d 645, 37 A.L.R.2d 326; and that whether a child becomes the heir of its parents depends not on contract, court decree, or election, but on the law, 26A C.J.S. Descent & Distribution § 28, p. 573. We agree with such authorities but they are not decisive of the issue here. Plaintiffs also cite Brown v. Wilson, 348 Mo. 658, 155 S.W.2d 176, and Gibson v. Sharp, 364 Mo. 1007, 270 S.W.2d 721, to the effect that a judgment is void to the extent that it goes beyond the pleadings. We agree with those authorities also, but they are not in point. The petition in 2601-E set out all the matters mentioned in our statement of facts and prayed for both specific and general determinations of interests of the parties and directions to the trustee. The answers also prayed for determinations of all present and future rights of all the parties. The decree was responsive to, and not beyond the scope of, the issues presented, and that case decided the matters sought to be litigated here.

The court in 2601-E had jurisdiction of the parties and of the equity subject matter those parties submitted to it. The court had the power to determine the issues and, if the judgment was not satisfactory to any of the parties affected, they were bound to assert the court’s errors, if any, and seek correction of the decree by appeal. Even if we assume the decree to have been contrary to a statute or the law of another case, it would not be void under the circumstances of this case, but would have been, at most, erroneous; and “* * nothing is better settled than the principle that an erroneous judgment has the same effect as to res judicata as a correct one. It has been held ‘that when a court has jurisdiction, it has jurisdiction to commit error.’ * * * If it was to be asserted that the judgment rendered in the former action was erroneous, the plaintiffs* remedy was by appeal and not by attacking the judgment as void in another proceeding.” Metcalf v. American Surety Co. of New York, 360 Mo. 1043, 232 S.W.2d 526, 529 [1-3].

For the reasons stated, we conclude that appellants’ petitions are collateral attacks upon the decree and judgment in Cause No. 2601-E in the Circuit Court of the City of St. Louis. Appellants were bound by that decree and the court in the present case properly dismissed the petitions on the ground of res judicata.

The judgment is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: FINCH, Judge.

license: Public Domain

text:
    Margaret A. MULLEN, (Plaintiff) Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, (Defendant) Appellant.
    No. 51056.
    Supreme Court of Missouri, En Banc.
    April 12, 1965.
    Opinion Modified on Court’s Own Motion and Rehearing Denied May 10, 1965.

      Walter S. Berkman, St. Louis, for respondent.
    Donald W. Bird, St. Louis, for (defendant) appellant St. Louis Public Service Co.
   FINCH, Judge.

Plaintiff obtained a judgment for $10,000 for personal injuries received while she was a passenger on a streetcar operated by defendant in the City of St. Louis. That judgment was affirmed on appeal by the St. Louis Court of Appeals. 380 S.W.2d 950. The case then was transferred to this court.

Defendant’s streetcar was traveling east on Olive Street. It made a stop just west of Grand Avenue on the south side of Olive Street. Several persons, including plaintiff, an 81-year-old lady, boarded the streetcar at that point. It then started up, crossed Grand Avenue, and headed east on Olive. A drug store is located at the northeast intersection of Grand and Olive and a parking lot is located to the east of and immediately behind said drug store. There were two driveways from the parking lot to Olive Street and the westernmost driveway was approximately 140 feet east of Grand Avenue. At that point Olive Street is approximately 36 feet wide. There were two sets of streetcar tracks, one eastbound and one westbound. Each set of tracks was 4 feet 10 inches wide, and the space between the tracks measured 5 feet 4 inches. The distance between the outer rails and the curb on each side of the street was 10 feet 6 inches. There was no street opposite the entrance to the parking lot, and cars leaving the lot could turn and go west on Olive or they could turn east on Olive.

As the streetcar was proceeding east on Olive, one Charles Lofton drove an automobile from the westernmost driveway leading from the parking lot. Defendant’s operator applied his emergency brakes on the streetcar and made a sudden stop. The driver of the automobile also applied his brakes, and the car and the streetcar stopped approximately one foot apart. Plaintiff had not yet been seated and the sudden application of the brakes on the streetcar caused her to fall and injure her back.

Plaintiff’s case was submitted to the jury on the theory that defendant’s operator failéd to keep a vigilant lookout. Defendant’s first contention is that plaintiff failed to make a submissible case on this theory and that the judgment should be reversed outright. To determine this question, a further examination of some of the evidence is necessary.

Chester Daugherty, the streetcar operator, testified that when he was about even with the loading zone east of Grand Avenue he saw an automobile coming out of the parking lot. At that point the streetcar was about 27 feet east of Grand, which placed it approximately 113 feet west of the driveway in question. At that time the streetcar was traveling 10 to 15 miles per hour. Daugherty testified that he did not then apply his brakes, nor does he remember sounding his bell. When he reached a point 40 feet to 45 feet from the entrance to the parking lot, he saw the Lofton automobile approach the path of the streetcar and he applied his emergency brakes at that time, stopping about one foot from the automobile. Daugherty was asked whether he had testified in his deposition that he had not paid any attention to the automobile until it got in his path. He stated that he had so testified, but that he meant that he had no reason to believe the car was going to continue across Olive Street, and that he saw it but didn’t notice it because it hadn’t gotten into his path. By this, he apparently meant that he was aware of the car but did not observe it closely until it got in his path. Daugherty did not remember whether there were any obstructing cars parked on the north side of Olive Street, but stated that he sat 61/2 feet above the street and could see over the tops of cars.

Charles Lofton and his passenger, James Hoch, testified that Lofton straddled the center of the westernmost driveway as he drove out of the parking lot; that he stopped to look for pedestrians as he approached the sidewalk; that he stopped his car again when his front wheels were at the curb line; that a car was parked on the north side of Olive just west of the driveway which obstructed his view to the west; that this parked car forced a wide turn into Olive Street; that he started his car from where it was stopped at the curb line, but didn’t see the streetcar approaching from the west until the front end of his car was out into Olive Street about 10 feet, and that he applied his brakes and stopped his car with the front end thereof at just about the center of the street. Lof-ton further testified that with the car parked on the north side of Olive Street just west of the driveway it was not possible to make the right-hand turn from the driveway onto Olive Street and remain entirely on the north side of the street. He further testified that at no time, as he left the parking lot, did he go more than three miles per hour.

Several passengers on the streetcar also testified. They first observed the Lofton car at various points, at least one observing it as it came out of the parking lot. Others saw it as it was leaving the sidewalk or was out in the street. All said the car was moving rapidly and did not make any stops. Some of these witnesses agreed with Daugherty that when the car came to a stop it was partially across the eastbound streetcar tracks and partially in front of the streetcar. Lofton and his passenger testified that the car did not reach the streetcar tracks and stopped about one foot short of the side of the streetcar, headed somewhat to the southwest.

Defendant contends that Daugherty, who was ealled as a witness by the plaintiff, testified that he observed the Lofton ear from the time it emerged from the parking lot until it stopped, and that since he did testify that he observed it at all times, there was no failure to keep a lookout shown by the evidence. Defendant contends further that Lofton’s testimony was that he made two stops with his car and was going very slow, and finally stopped at the center of the street before hitting the streetcar, and that this evidence shows there never was any danger of a collision. Defendant concludes that whether Daugherty’s, version or Lofton’s version is accepted, failure to keep a lookout could not have been the proximate cause of plaintiff’s injuries and no submis-sible case was made.

Defendant’s position cannot be sustained. The mere fact that Daugherty testified that he looked and saw the car at all times is not sufficient to defeat a lookout submission. He was required to keep a vigilant lookout. Considering the evidence in the light most favorable to plaintiff, we have a situation in which Daugherty, when approximately 113 feet away, saw an automobile coming rapidly out of the parking lot without stopping. There was no evidence offered to show any indication of the direction in which he would turn. If the automobile turned to the east on Olive, it of necessity would cross over into the pathway of the streetcar. If it turned west, with a car parked at the north curb of Olive just west of the parking lot, the turn to go to the west, according to witness Lof-ton and his passenger, could not be made without getting across the center line of Olive Street, which meant that the car would get into the pathway of the streetcar. This testimony cannot be said to be unworthy of belief, especially in view of the fact that defendant offered in evidence a moving picture film of a test made by defendant of a car leaving the parking lot and turning to the west, and the film disclosed that the car in making the turn reached the center of Olive Street. The film and testimony disclosed that the car parked at the north curb line of Olive Street in the test was a compact car (it showed a distance of two feet between the side of the parked compact and the yellow line marking the limit for parked cars), and the jury could have concluded that, if the parked car had been a standard size car, the car in the test would have crossed the center line in making the turn to the west on Olive Street. Several witnesses stated that the Lofton car made no stops and was coming rapidly, all of which would indicate the necessity of a wide turn and an increased likelihood of a collision. All of this was visible to defendant’s operator if he kept a vigilant lookout. From this evidence a jury could have found that if defendant’s operator had maintained a vigilant lookout and observed these occurrences, he could and should, with the means and ability at hand, have so acted that the sudden stop made after the car was getting into the actual pathway of the streetcar could have been avoided, and that such failure was negligence and directly caused plaintiff’s injury. This might have been by sounding a bell in warning or slowing down gradually, or both. The evidence is not such, as appellant contends, that there was no reason or obligation to act until the automobile actually entered the pathway of the streetcar. We rule that plaintiff made a submissible case. This result is not contrary to the cases of Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, and Creech v. Riss & Co., Mo., 285 S.W.2d 554, the two cases cited by defendant on this question. The rule announced in these cases with respect to the evidence required and the manner of submission of lookout cases is consistent with what we have said herein. These and other cases have held that in a lookout submission it is not essential for an instruction to hypothesize the exact manner in which and the means by which defendant could have acted to avoid the collision so long as there was substantial evidence to support a reasonable finding that defendant had the means and ability to have so acted to avoid a collision. See also Boehm v. St. Louis Public Service Co., Mo., 368 S.W.2d 361.

Defendant also complains of Instruction No. 3 given on behalf of plaintiff. That instruction was as follows:

“The Court instructs the jury that if you find and believe from the evidence that at the time the operator reduced the speed of the streetcar suddenly, the Lofton automobile was in close proximity to the path of said streetcar; and if you further find that prior thereto and at the time Mr. Lofton was starting to drive the automobile south-wardly from the parking lot described in evidence and onto Olive Street, the operator of the streetcar, in the exercise of the highest degree of care for the safety of his passengers, could have observed said automobile moving southwardly in the direction of the eastbound streetcar tracks, and at that time said operator should have given a warning of the approach of the streetcar and should have reduced the speed of said streetcar so that the same could be decelerated or stopped gradually if danger of collision with said automobile did thereafter arise, but failed so to do; and if you further find that in so failing, said operator failed to exercise the highest degree of care for the safety of his passengers and was negligent; and if you further find that such negligence, if you so find, of said operator directly contributed in part to cause an emergency or danger of collision with said automobile which thereafter arose, if you do find that an emergency or danger of collision did thereafter arise, then you are instructed that said operator is not excused from his action in reducing the speed of the streetcar suddenly on the ground that he was confronted with a sudden emergency, if any, or because there was then danger of collision, if any, with said automobile.”

Defendant had given Instruction No. 2 which was a sudden emergency instruction. Instruction No. 3 was in response thereto and was intended to inform the jury that such emergency did not excuse defendant if negligence of defendant caused or contributed to cause the emergency. An instruction correctly so advising the jury would be proper. As we stated in Rohde v. St. Louis Public Service Co., Mo., 249 S.W.2d 417, 420, “The emergency doctrine has no application and may not be asserted if the emergency arises wholly or partially from the negligence of the one who seeks to invoke the doctrine.” Defendant’s complaint with respect to Instruction No. 3 is that it permitted the jury to render a verdict against defendant upon the mere finding that defendant’s operator failed to take evasive action at a time when there was no danger of a collision. The instruction does tell the jury that if they find that the streetcar operator could have observed the automobile moving from the parking lot in the direction of the streetcar tracks, and further find that the operator should have given warning or slowed down so he could decelerate or stop if danger of collision with said automobile did thereafter arise, and that this was a failure to exercise the highest degree of care for the safety of the passengers and was negligence, then the operator was not excused by the sudden emergency. This language did not require a finding that there was a then existing danger of collision. Instead, it permits the jury to impose on the defendant a duty to act and thereby be able to avoid a collision if danger thereof should arise thereafter. Defendant complains that this is contrary to Stakelback v. Neff, Mo.App., 13 S.W.2d 575, 577, wherein the court said: “Counsel for defendant submit that the above instruction is fatally erroneous, in that it placed a greater duty upon defendant than that required of him by law. * * * The precise contention is that defendant was thus incorrectly charged with the duty of stopping, slackening the speed of, or swerving, his automobile, upon the mere appearance of the other car, whether the facts or circumstances were such as to give him reason to believe that a collision was imminent, or not.” The court further went on to say: “We cannot escape the conclusion that defendant’s complaint in this respect is well founded. * * * [T]here was nevertheless no duty upon defendant to take any of the precautions hypothesized therein, unless there was apparent danger of a collision, which basic fact the jury was not required to find. It cannot be said that the law imposes the duty upon the driver of an automobile, upon approaching and entering an intersecting street, to stop, decrease the speed of, or change the course of, his car, merely because he sees another automobile in the street ahead of him. To the contrary, such duty to act would clearly not arise, unless the exercise of due care upon the part of the driver would lead him to believe that otherwise a collision would occur.” The same rule is announced in Mydegger v. Mason, Mo., 315 S.W.2d 816.

Instruction No. 3 does, in effect, tell the jury that they could ignore the matter of sudden emergency (which was submitted in Instruction No. 2) if they found that defendant’s operator was negligent in not taking action so as to be able to avoid a collision if danger thereof subsequently arose. This was error. There would have been a duty on defendant’s operator to take evasive action to avoid the collision and to avoid the necessity of a sudden stop, if possible, at such time as it was reasonably apparent that there was danger of a collision. Plaintiff would have been entitled to such an instruction telling the jury that if the sudden emergency was caused or contributed to by the negligence of the defendant, the sudden emergency could not be asserted. That duty did not arise, however, at a time when it was not reasonably apparent that there was danger of a collision and when the evasive action would only be taken on the basis that it would enable the operator to stop or slow gradually if danger thereafter arose.

Other errors are assigned by defendant as to other instructions, but these likely will not occur upon another trial, especially in view of the fact that instructions will be drafted on the basis of Missouri Approved Jury Instructions. For this reason we will not extend this opinion by consideration of objections to other instructions.

Defendant’s brief makes no claim whatsoever that the verdict is excessive, or that the measure of damage instruction was erroneous in any respect. Defendant’s brief suggests that a new trial be limited to the issue of liability only, and plaintiff’s brief has not taken issue with or opposed that suggestion. Section 512.160(3) RSMo 1959, Y.A.M.S., provides, in part, that “no new trial shall be ordered as to issues in which no error appears.” We have concluded, therefore, that the new trial should be limited to the issue of liability. Upon a retrial, if the verdict is for the plaintiff, the court shall enter a judgment in the sum of $10,000 against defendant herein.

The judgment is reversed and the cause remanded for a new trial upon the issue of liability only.

EAGER, C. J., STORCKMAN, HYDE, HOLMAN, and HENLEY, JJ., and STONE, Special J., concur.

DALTON, J., not sitting.


author: STORCKMAN, Judge.

text:
    COUNTY OF GREENE, Appellant, v. John Q. HAMMONS, and His Wife Juanita Hammons, and Lee McLean, Jr., and His Wife Martha Y. McLean, Respondents.
    No. 50731.
    Supreme Court of Missouri, Division No. 2.
    May 10, 1965.

      Don E. Burrell, Pros. Atty., and David P. Anderson, Asst. Pros. Atty., Springfield, Mo., for appellant.
    John B. Newberry, Springfield, for respondents.
   STORCKMAN, Judge.

This proceeding was instituted by Greene County, Missouri, to condemn a portion of defendants’ land for roadway purposes pursuant to the provisions of § 228.180, RSMo 1959, V.A.M.S. The defendants’ contention in the trial court and here is that § 228.180 has been repealed directly or by implication and if not the statute is invalid in that it is in violation of the Missouri Constitution and the Civil Rules of this court relating to practice and procedure in condemnation cases. The County of Greene will generally be referred to as the plaintiff or the County and John Q. Hammons and Lee McLean, Jr., and their wives as the defendants or the landowners.

The trial in the Circuit Court of Greene County resulted in a verdict and judgment for the defendants in the sum of $2,000. The defendants’ aftertrial motion for judgment of dismissal was sustained and the plaintiff appealed. The Supreme Court has jurisdiction because Greene County, a political subdivision of the state, is a party, and constitutional questions are involved. Art. 5, § 3, Constitution of Missouri 1945, V.A.M.S.; Taney County v. Addington, Mo.App., 296 S.W.2d 129 [2], and Mo., 304 S.W.2d 842 [1],

The transcript of the record on appeal reveals that the first document filed with the clerk of the Circuit Court of Greene County was a record of prior proceedings in the County Court of Greene County which resulted in the publication of a newspaper “notice of condemnation of land by the Greene County Court for road purposes under Section 228.180 RSMo., 1959.” The order further recites that the defendants filed a claim for damages in the amount of $14,-750 for the taking of their land, that the county court set a date for the defendants “to present their claim for damages”, that counsel informed the county court that the defendant would not offer evidence or be present at the hearing, and, it being apparent to the county court that the landowners and the court could not agree on the amount of damages, the county court “makes this order” reciting the facts and proceedings, and orders the county clerk to transmit to the Circuit Court of Greene County “a transcription of the record and the original files in this cause.” The document filed concludes with the statement that the County Court of Greene County “by this order requests that the Circuit Judge of Greene County to make an order setting this cause for hearing within thirty days and cause to be impaneled a jury of six freeholders to view the land and hear evidence to determine the question of damages and thereafter that the Circuit Judge order conveyance of said land to Greene County.” No pleading other than a motion to dismiss was filed in the circuit court. A jury of six freeholders viewed the property, heard evidence, and returned the verdict.

The appellant County asserts that the determinative issue on this appeal is whether or not the County had the right to condemn the defendants’ land for public road purposes in the manner provided by § 228.-180. The respondents landowners assert that § 228.180 has been repealed at least impliedly by § 49.300, a later enactment by the general assembly covering the same subject matter, and further that § 228.180 is invalid as being in conflict with provisions of the 1945 Constitution of Missouri and with Civil Rule 86, V.A.M.R., relating to the procedure to be followed in condemnation cases.

Our first concern is to determine the legislative intent as expressed in the relevant statutes. The statutes which now constitute Chapter 228, including § 228.180, had their beginning in 1917. Laws 1917, p. 442. The 1875 Constitution, Art. 6, § 36, in force at that time, designated a county court as a “court of record” and the county courts were authorized by law to perform judicial functions in connection with the establishing of public roads. See §§ 8473-8487, Revised Statutes of Missouri 1939. The 1945 Constitution, adopted February 27, 1945, divested county courts of judicial power and limited their functions to the management of county business as prescribed by law. Art. 5, § 1, and Art. 6, § 7, and § 2 of the Schedule, Constitution of Missouri 1945; Rippeto v. Thompson, 358 Mo. 721, 216 S.W.2d 505, 508[5].

The enormous task of revising the Missouri statutes to avoid conflict with the new Constitution fell upon the Sixty-third General Assembly which was in session when the 1945 Constitution was adopted. Inconsistent laws could not remain in force beyond July 1, 1946. See § 2 of Schedule. One of the statutes enacted at that time is now § 49.300, RSMo 1959, V.A.M.S., which the defendants contend vests the circuit courts with exclusive jurisdiction of actions by counties to condemn land for public roads. See Laws 1945, p. 1469. This statute did not have its origin in the repeal of an existing law but was entirely new. The legislative title is: “AN ACT to provide a method for the condemnation of land or other property by county courts for roads or other public purposes.”

Section 49.300 as presently constituted authorizes county courts to institute proceedings in the circuit court in the name of the county for the purpose of condemning land or other property “for roads, drainage systems, sites for a county courthouse, jail, poorhouse, infirmary or for any other public purpose whatsoever”. The statute further provided that the proceedings in circuit court “shall be had in the manner and with the effect provided in chapter 523, RSMo, for the condemnation of property for public use.” The enactment also refers to chapter 228, RSMo., and provides that petitioners as well as the county be made parties where the proposal is by petition and authorizes the circuit court to render judgment for damages and costs against the county or others. The new statute approved April 17, 1946, was codified as § 2518.1, Mo.R.S.A., under “County Courts — Powers In General”,. and is now in chapter 49, RSMo., entitled, “County Courts And County Buildings”.

This was the status of the law when State ex rel. Lane v. Pankey, 359 Mo. 118, 221 S.W.2d 195, was decided by this court en banc on May 13, 1949. The landowners in the Pankey case sought to prohibit the members of the County Court of Linn County from exercising jurisdiction in a condemnation proceeding pending in the county court pursuant to “Sections 8473 to 8478, both inclusive”, of the 1939 statutes. The opinion reviews Rippeto v. Thompson, 358 Mo. 721, 216 S.W.2d 505, and other cases and states: “The new Constitution, as construed in the Rippeto case and as we now construe it, invalidates no provision of existing statutes relating to the authority of county courts over public roads except such as purport to authorize the county court to exercise judicial power. A county court can no longer adjudge the compensation to be paid for lands to be taken for road purposes nor render judgment divesting title from the owners thereof.” 221 S.W.2d 196. Further the opinion states that, “if land owners are unwilling or unable to convey, the necessary right-of-way can be acquired only by condemnation proceedings in a tribunal having the necessary jurisdiction.” 221 S.W.2d 197. It points out that under existing statutes the county court was authorized to institute such proceedings in the circuit court and the method was provided. The rule made permanent by the supreme court prohibited the County Court of Linn County from rendering a judgment or purporting to divest relators of their title or taking possession of their lands until title had been acquired by voluntary conveyance or by a valid condemnation judgment.

If there was ever any doubt about the legislative intention as expressed in § 49.306, it has been entirely dissipated by the new section, 228.100, enacted by the general assembly in session when the Pankey case was decided. Six sections including 8476, 8477, and 8478 of the 1939 statutes were repealed, and the statutes enacted in lieu thereof include what is now § 228.100, RSMo 1959, V.A.M.S. Laws 1949, pp. 551, 553, § 8476. Section 228.100 provides that, if the right of way for a proposed road cannot be obtained by voluntary conveyance, and if “it further appears to the county court that the proposed road is of such great public utility as to warrant its establishment, the county court shall order the road established and shall direct the prosecuting attorney of the county to institute proceedings in the name of the county in the circuit court for the purpose of condemning such lands. Such proceedings shall be instituted and conducted by said prosecuting attorney under the provisions of chapter 523, RSMo.” The legislative intent is further apparent from the Emergency Clause appearing in Laws 1949, p. 554, § 2: “Whereas the adoption of the Constitution of 1945 has placed a grave doubt upon the constitutionality of the present statutory procedure felating to the establishment and vacation of public roads, and because the establishment and vacation of such roads are of vital importance to the citizens of this state, this act is necessary for the immediate preservation of the public peace, health, and safety, and an emergency exists within the meaning of the Constitution. This act therefore shall be in full force and effect from and after its passage and approval.”

The County points out that § 228.180 has not been expressly repealed and infers that §§ 49.300 and 228.180 offer alternative methods by which a county court may condemn property for public roads. This construction would not remove the “grave doubt” as the general assembly was seeking to do as shown by its own declaration. There is much of an administrative nature in § 228.180 which remains effective and binding on county courts preliminary to the rendition of a condemnation judgment and the ascertainment of damages if the landowners are incapable or unwilling to convey the property or to agree upon damages. On the other hand, any part or parts of § 228.180 which purport to authorize county courts to perform judicial acts in connection with the acquisition of property for public road purposes are in violation of the 1945 Constitution of Missouri and have no legal standing. Sections 49.300 and 228.100 are later acts and at least in combination indicate a legislative intent to cover the entire subject of the judicial phases of condemnation proceedings by county courts and, therefore, they supersede and by implication repeal contrary provisions in § 228.180. Pogue v. Swink, 364 Mo. 306, 261 S.W.2d 40, 43-44 [5]; Young v. Greene County, 342 Mo. 1105, 119 S.W.2d 369, 374 [71].

We hold that the circuit courts have exclusive jurisdiction of condemnation proceedings arising under chapter 228 of the statutes and such proceedings must be instituted and conducted pursuant to the provisions of chapter 523. Sections 49.300 and 228.100, RSMo 1959, V.A.M.S. Since there is no contention that there is any conflict between the procedures provided in chapter 523 and Civil Rule 86, nothing in that regard is presented for our determination.

The remaining contention of the appellant County is that § 228.180(5) is not unconstitutional because it provides for a jury of six persons rather than twelve. We do not reach the constitutional question because controlling provisions of chapter 523 require a jury of twelve. Section 523.060 provides that: “Any plaintiff or defendant, individual or corporate, shall have the right of trial by jury of twelve persons, if either party file exceptions to the award of commissioners in any condemnation case.” This section, originally enacted as Laws 1943, p. 623, is of a general nature and is applicable to all condemnation cases triable under the provisions of chapter 523. The provision in § 228.180(5) for a jury of six persons is superseded by the requirements of §§ 49.300 and 228.100 that county'condemnation actions be instituted and tried in accordance with the provisions of chapter 523.

We have examined all relevant questions presented by the appellant County and find them untenable. The circuit court did not err in sustaining the respondents’ aftertrial motion and dismissing the proceedings. Accordingly the judgment is affirmed.

All of the Judges concur.


author: FRANK D. CONNETT, Special Judge.

text:
    Lenora COURSEY, (Plaintiff) Respondent, v. Martha D. HAWTHORNE, (Defendant) Appellant, and DeLuxe Cab Company, Inc., (Defendant) Appellant.
    Nos. 31633, 31634.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.

      Joseph C. Miller, Holtkamp, Miller, Risch & Amelung, St. Louis, for defendant appellant Martha D. Hawthorne.
    Morris A. Shenker and Frank B. Green, Jr., St. Louis, for appellant DeLuxe Cab Co., Inc.
    Guilfoil, Caruthers, Symington, Montrey & Daniel, John P. Montrey, St. Louis, for respondent.
   FRANK D. CONNETT, Special Judge.

Plaintiff, Lenora Coursey of Poplar Bluff, Missouri, arrived at the St. Louis City Union Station on Saturday afternoon, June 24, 1961. She entered a cab operated by defendant DeLuxe Cab Company, Inc., driven by Edward Coleman. Visibility was good and the streets were dry. They left the Union Station and drove west on Olive Street, which had four westbound lanes. Plaintiff was seated on the back seat on the right side facing forward. The cab stopped at the intersection of Beaumont Street to avoid striking a southbound car traveling on Beaumont which had failed to stop at a stop sign. The cab was struck in the rear by an Oldsmobile driven by defendant, Martha D. Hawthorne. The plaintiff was injured and brought suit in the St. Louis City Circuit Court against both defendants In the amount of $40,000. The jury found in her favor against both defendants in the amount of $7,500. Both defendants appeal.

In this case plaintiff had no knowledge of how the accident occurred other than that the cab in which she was a passenger was sitting still at the time it was struck. She didn’t know where in the street it was sitting or by whom or by what it was struck.

Plaintiff called the cab driver as a witness to show that the cab made a gradual stop at Beaumont to avoid striking another car and it had been there three or four seconds when struck in the rear by defendant Hawthorne. He further testified that he had not changed lanes within the block prior to Beaumont. Plaintiff called defendant Hawthorne as a witness to show that she was driving in the lane next to the inside lane of Olive Street and that defendant’s cab swerved over in front of her and stopped suddenly without warning and she ran into it.

There was no other evidence as to how the accident happened. Plaintiff then proceeded to submit her case to the jury against defendant Cab Company by Instruction No. 1 on the theory the defendant’s cab driver was negligent in having swerved in front of and thereafter suddenly stopped in defendant Hawthorne’s path; by Instruction No. 2 against defendant Hawthorne, on the theory defendant Hawthorne was negligent in allowing her car to collide with the rear of defendant’s cab while it was sitting in the street, and also against defendant Hawthorne by Instruction No. 3, based on defendant Hawthorne’s alleged failure to keep a lookout. She also submitted her case against both defendants by Instruction No. 4 on the theory that the negligence of each concurrred to cause plaintiff’s injury.

Defendant DeLuxe Cab Company contends the trial court erred in giving Instructions 1, 2, 3, and 4 in that they were conflicting and contradictory. We do not find this to be true as to No. 3, the lookout instruction. However, under Instruction No. 1 the jury could find against defendant cab company for cutting in and suddenly stopping and in Instruction No. 2 they could find against defendant Hawthorne if the cab did not cut in and suddenly stop, but that defendant Hawthorne negligently ran into the rear end of the cab. By Instruction No. 4 they were permitted to find against both defendants on any theory of negligence submitted by the instructions without being directed to any specific instruction or combination thereof. Therefore the jury was permitted to find that the collision occurred as hypothesized in both Instructions 1 and 2 which is an impossibility.

Plaintiff admits that Instructions 1 and 2 were conflicting but says that Instructions 1 and 3 (a lookout instruction) were not conflicting and therefore since the jury found against both defendants, they must have followed Instructions Nos. 1 and 3. However, there is no way of determining whether the jury followed the proper combination of Instructions Nos. 1 and 3, or, the improper combination of Instructions Nos. 1 and 2, so the case must be reversed and remanded. Ferguson v. Betterton, 364 Mo. 997, 270 S.W.2d 756, 760.

Plaintiff relies on the case of Brown v. Parker, Mo.App., 375 S.W.2d 594, as an approved example of such a submission against two defendants. This case arose from a collision between two defendants which occurred at a controlled intersection. Each defendant was charged in the disjunctive with negligence in running a stop light and negligence in failing to keep a lookout for the other defendant who ran the stop light. From the undisputed evidence only one defendant could have disobeyed the traffic signal.

Against a claim that these instructions were inconsistent and contradictory, the Court pointed out and stated: (375 S.W.2d 594, 600)

“ * * * each of these instructions specifically refers to another instruction. (Emphasis ours.) Instruction No. 3 directed a verdict for the plaintiff and against the defendant Brown if they found that Brown failed to keep a proper lookout, was negligent in so failing, and that negligence either directly caused or directly combined and concurred with Parker’s negligence in running the stop sign as submitted by Instruction No. 2 to cause plaintiff’s injury. Instruction No. 1 directed a verdict for the plaintiff and against the defendant Parker if they found that Parker failed to keep a proper lookout, was negligent in so failing, and that negligence either directly caused or directly combined and concurred with Brown’s negligence in running the red light as submitted by Instruction No. 4 to cause plaintiff’s injury. It is obvious that the effect of these four instructions was to allow the jury to find that either Brown or Parker ran the stop sign and also find that the one who was not negligent in that regard was negligent in failing to keep a proper lookout. Since the jury found against both defendants, it is obvious that they found one defendant negligent in running the stop sign, found the other defendant negligent in failing to keep a proper lookout, and found that these negligent acts combined and concurred to cause plaintiff’s injury. There is no inconsistency, contradiction or repugnancy in such a submission or finding.”

However, such is not the situation in the case at bar. Here, by Instruction No. 4, the jury was instructed to return a verdict against both defendants if they were both negligent in any respect submitted to them. Two of the three submissions were in conflict with each other with no directions to guide the jury away from the improper conflicting combination.

Since the case must be reversed and remanded for the above error, we do not reach appellant cab company’s other point. In the event this case is tried again plaintiff would be well advised to consider whether defendant Hawthorne’s complaint as to Instruction No. 3 might not apply to Instruction No. 2. However, we do not need to consider her allegations of error.

Defendant Hawthorne also filed an appeal. Since the error mentioned above in giving both Instructions Nos. 1 and 2 to the jury was a plain error- and equally affected both parties and was generally against both defendants, it is a matter of justice that both judgments should be reversed and a new trial granted to both defendants. Supreme Court Rule 79.04, V. A.M.R. It is so ordered.

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

WOLFE, J., not participating.


author: FRANK D. CONNETT, Jr., Special Judge.

text:
    Francis M. BAUER, Plaintiff-Respondent, v. James HOLTKAMP, Defendant-Respondent, and Mary Jane Sullivan, Defendant-Appellant.
    No. 31890.
    St. Louis Court of Appeals. Missouri.
    April 20, 1965.

      Omer H. Avery, Troy, Derrick & Hoi-derle, St. Louis, for defendant-appellant.
    Hungate & Grewach, Troy, for plaintiff-respondent.
    Edwards, Seigfreid & Runge, Mexico, Mo., for defendant-respondent.
   FRANK D. CONNETT, Jr., Special Judge.

It was about 1:00 o’clock in the morning on April 18, 1962, when a card party in the home of Mr. and Mrs. William Edelen in Millwood, Lincoln County, Missouri, ended, and the guests began to leave. Among those leaving were Patrick and Mary Jane Sullivan, husband and wife. They were in a Ford automobile, belonging to Mary Jane and being driven by Patrick. They intended to go home. He backed the automobile northwardly out of the Edelen driveway, and on to a blacktop road, designated Highway E, running east and west. He failed to turn short enough and crossed the road and backed into a four-foot ditch and became stuck. This left the front end of his car blocking most of the north half of the road. While Patrick and four or five other guests were trying to get the Ford out of the ditch, James Holtkamp, driving an Oldsmobile automobile, approached from the east. He crested the hill some 150 feet east of the stalled Ford; was unable to stop; swerved out to his left; traveled 164 feet farther west on a course which took him into and along a two-foot deep ditch, and out again and across the yard of William Edelen and crashing into a house next door, belonging to Francis Bauer. The collision damaged the house in the amount of $974.

Francis Bauer brought suit in the Circuit Court in Lincoln County against James Holtkamp and Mary Jane Sullivan for this damage. The case was tried in the Court without a jury and the Court found in favor of the plaintiff and against defendant Mary Jane Sullivan in the amount of $974. The Court found in favor of defendant Holt-kamp. After an intervening motion for new trial, defendant Sullivan appeals to this Court.

Defendant’s first contention is that the plaintiff, Francis M. Bauer, is not the real party in interest and the suit should be dismissed. The only evidence pertaining to this issue came from the cross-examination of plaintiff. Plaintiff testified that the Farm Bureau Insurance Company had paid him some $970 for his entire loss; that as far as he knew, he was just there as a witness and would not get any of the money if judgment were rendered in his favor. When asked by the cross-examiner whether or not he had transferred his rights, arising out of the damage to his house, to any other person or corporation, he replied that he didn’t know what the examiner meant; that he had endorsed the check but didn’t know whether anything was written on the back of the check or not; that he signed no other papers. As noted by the able trial Judge, the proposition stated in the case of Hayes v. Jenkins, Mo.App., 337 S.W.2d 259, is on all fours with this case. There was no evidence offered that there had been an assignment of the cause of action or a satisfaction and release. An assignment or release of a cause of action cannot be inferred solely from the fact of payment. Bare legal title to the cause of action is sufficient to maintain an action at law. There being evidence that plaintiff was the owner of the house that was damaged and it not appearing that plaintiff assigned his claim or entered into a satisfaction and release, the contention that plaintiff was not the real party in interest is denied.

Appellant’s next point is that the evidence does not support the finding that defendant Mary Jane Sullivan was negligent. The evidence was that defendant’s husband, Patrick, was driving the Ford when it was backed into the ditch, and the negligence was therefore his. However, respondent points out that the evidence also shows that defendant Mary Jane Sullivan owned the automobile, was personally present when it was being driven by Patrick, and that the owner and driver were engaged in a joint venture, to-wit, returning to their home from the party. He contends, therefore, that in such an instance, the negligence of Patrick, the driver, is imputable to the owner, and cites Kieffer v. Bragdon, Mo.App., 278 S.W.2d 10, 16. Imputed negligence was the basis of the trial court’s finding that Mary Jane Sullivan was negligent.

Appellant in his reply brief agrees with this proposition of law but attempts to counter respondent by contending that since plaintiff did not plead this theory of imputed negligence, but pleaded specific negligence, that he will not be permitted to recover on a theory of imputed negligence. He argues that the law is that a plaintiff having pleaded a specific charge of negligence or a specific theory of recovery, he will not be permitted to recover on any other ground or theory; that since he did not plead his theory of imputed negligence, he cannot rely upon it- to sustain -a -judgment; that he was bound by the theory he pleaded. Although appellant’s rule of law is sound, it does not apply in this instance. Relying on imputed negligence after having pleaded specific negligence is not changing the ground or theory of recovery. Imputing the negligence of one to another has nothing to do with whether the negligence was pleaded specifically or generally, or what act or acts alleged to constitute actionable negligence make up one’s theory of recovery.

The reason or basis for the rule of imputed negligence in these automobile cases is that a relation of principal and agent, or master and servant, exists between the owner and the driver of an automobile, and the owner being personally present in the automobile at the time, and having the control and authority of a principal, or master, is responsible for and bound by the negligence of his agent or servant. Smith v. Wells, 326 Mo. 525, 31 S.W.2d 1014, 1025. It is not necessary to plead agency relationship when the allegation is that the act was committed by the master, or principal, or, as in this case, by the owner, Mary Jane Sullivan. The fact that the act was committed by the agent or servant (here a husband and driver), supports the allegation and does not affect the recovery. The fact is pleaded according to its legal effect. See Gordon v. Bleeck Automobile Co., Mo.App., 233 S.W. 265, 266(3), and cases there cited. See also E. C. Robinson Lumber Co. v. Lowrey, Mo.App., 276 S.W.2d 636, 642(16). Judge Ellison in the case of McCoy v. Kansas City, St. J. & C. B. R. Co., 36 Mo. App. 445, 452, states the rule as follows: “In an action against the principal for an act of his agent and against the master for the act of his servant, the petition charges the act to have been committed by the principal, or the master, without the named agent or servant; and proof that the act was committed by the agent or servant, supports the allegation. Bliss Code Pl. Sec. 158; Bennett v. Judson, 21 N.Y. 238. Such case in fact is pleaded according to its legal effect.”

Appellant’s next contention in effect is that even though the negligence of Patrick is imputed to Mary Jane, this negligence is not the proximate cause of the damage to respondent’s house. She relies on Greenwood v. Vanarsdall, Mo.App., 356 S.W.2d 109. As stated in her brief: “In this case the defendant drove his automobile at a dangerous rate of speed and lost control and went into a ditch at the side of the road. People congregated at the scene and later an automobile in which the plaintiff was a passenger, came along in the same direction in which the defendant had been driving, crested the hill and the driver swerved to avoid the people who had congregated on the road and ran into a culvert injuring the plaintiff. The Court on appeal held that the evidence was insufficient to support a submission of the defendant’s negligence of driving his auto into the ditch, as having been the proximate cause of the plaintiff’s injuries.”

The Court also said, at page 113:

“When plaintiff received his injuries, whatever the defendant did or failed to do was done and finished. Fifty-five minutes had passed since the defendant’s car had gone into the ditch. The dust had long settled and the reverberations had long since ceased. That particular chain of circumstances had ended. Defendant’s car was not blocking the road or shoulder. So far as the evidence shows, neither defendant nor any of his passengers was present. There was no emergency at hand and no rescue operation in effect. The persons who were present on the road were nowise directly concerned with the first occurrence. Their presence was not even a part of the res gestae of the act of defendant in his driving, and their presence on the road in front of the plaintiff was a remote and intervening occurrence which in turn immediately precipitated the action of the plaintiff’s driver in going off the road.”

The evidence in the case at bar shows that at the time the damage occurred, defendant’s car was blocking most of the westbound lane of traffic. Defendant was at the wheel of the car and a rescue operation was under way. When Patrick and the other party guests heard the oncoming defendant Holtkamp approaching the crest of the hill, the following occurred among those directly concerned with the first occurrence: Mary Jane remained in the car 'behind the steering wheel; Patrick left the car and went up the hill on the north shoulder, waving his arms; another person, George Sherman, ran up the hill on the south shoulder, waving a flashlight. When the rest realized the oncoming car was not going to stop, they got out from behind the car and crossed the highway to Edelen’s yard. Defendant Holtkamp testified he was traveling at a speed of 40 to 45 miles an nour, and when he topped the hill he saw “a car was partially blocking my line of traffic and there were some people around it.” He testified he put on his brakes but couldn’t stop in time, so he swerved to the left to keep from hitting the people around the car. He lost control of his car and struck the house. Quoting from Floyd v. St. Louis Public Service Co., Mo.Sup., 280 S.W.2d 74, 78:

“Generally, it is sufficient to constitute proximate cause that the negligence charged was the efficient cause which set in motion the chain of circumstances leading up to the injury. The test is not whether a reasonably prudent person would have foreseen the particular injury but whether, after the occurrences, the injury appears to be the reasonable and probable consequences of the act or omission of the defendant. The negligence of the defendant need not be the sole cause of the injury. It is sufficient that it be one of the efficient causes thereof, without which the injury would not have resulted. A party is held liable if his negligence, combined with the negligence of others, results in injury to another.” (Citing cases).

See, also, Thebeau v. Thebeau, Mo.Sup., 324 S.W.2d 674, 678.

Does not an approaching automobile running off the road and causing injury or damage appear to be the reasonable and probable consequence of Patrick having carelessly backed the automobile into the ditch at 1:30 in the morning near the crest of a hill, in such a manner as to par» tially block the highway and necessitate rescue operations? The trial court sitting as Jury, so found it to be and so do we, as we review the evidence and give due regard to the trial court’s opportunity to judge the credibility of the witnesses. Supreme Court Rule 73.01, V.A.M.R.; Section 510.310 RSMo 1959, V.A.M.S.

Defendant’s final contention is that even if defendant Sullivan was negligent, so was defendant Holtkamp; therefore, the trial court’s finding that defendant Holt-kamp was not negligent deprived defendant Sullivan of her right to contribution. The short answer to this is the trial court did not err in finding in favor of defendant Holtkamp. Defendant Sullivan’s witnesses testified that defendant Holtkamp was traveling at a high rate of speed, 60 to 70 miles an hour. She relies on this to prove his alleged negligence. However, defendant Holtkamp testified he was driving- 40 to 45 miles an hour, thus producing a shatp conflict between defendant Holtkamp and the other witnesses as to his speed. In such an instance we defer to the finding of the trial court. In re Petersen’s Estate, Mo.Sup., 295 S.W.2d 144, 148; Listerman v. Day & Night Plumbing & Heating Service, Inc., Mo.App., 384 S.W.2d 111, 120.

We concur in the finding and judgment of the trial court. The judgment is affirmed.

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

WOLFE, J., not participating.