text:
    Dee Anna Schwertfeger HUNTER, Plaintiff-Appellant, v. Edgar Albert SCHWERTFEGER, Jr., Defendant-Respondent. Dee Anna Schwertfeger HUNTER, Plaintiff-Respondent, v. Edgar Albert SCHWERTFEGER, Jr., Defendant-Appellant.
    Nos. 8556, 8557.
    Springfield Court of Appeals. Missouri.
    Oct. 8, 1966.

      Richard D. Moore, Newton C. Brill, West Plains, for plaintiff.
    Green & Green, West Plains, for defendant.
   STONE, Presiding Judge.

On July 10, 1965, plaintiff Dee Anna Hunter (formerly Schwertfeger) instituted this action against defendant Edgar Albert Schwertfeger, Jr., in the Circuit Court of Howell County by the filing of her petition in two counts. In Count I, plaintiff pleaded that a son, Stanley, was born on May 28, 1957, of her marriage to defendant; that the parties were divorced “in April of 1959” (the evidence established this date as February 17, 1959) by decree of said circuit court, which awarded custody of the boy to defendant father for the six-month period beginning March 1, 1959, and to plaintiff mother for the six-month period beginning September 1, 1959, with “custody to alternate each succeeding six months”; that, on May 3, 1962, the custodial provisions of said decree were modified with major custody of the boy awarded to plaintiff and minor custody to the father for not longer than sixty days during the summer; that defendant had “failed and refused to pay any support money” for the boy during those periods that the boy was in plaintiff’s custody; and that the “reasonable cost” of supporting the boy while in her custody had been $100 per month, “making a total of $5,400 [for] which defendant [was] indebted to plaintiff.” Although there was no averment to that effect in Count I, the evidence showed that both the original decree and the order of modification were silent as to the boy’s support. The prayer of Count I was for a money judgment of $5,400. In Count II, plaintiff pleaded the provisions of the order of modification on May 3, 1962; that “the decree” was silent as to the boy’s support; and that the “reasonable cost” of Such support was $100 per month. The prayer was for modification of the “divorce decree” so that it would provide for child support payments by defendant.

Trial by jury as to Count I having been waived by both parties, evidence was taken on October 29, 1965 ; and, at the conclusion of the hearing, the trial court found that, “as a matter of equity and right, the plaintiff is not entitled to relief as sought in Count One of her petition and it is dismissed by the court,” but that “plaintiff is entitled to the relief sought in Count Two of her petition and is granted a child support judgment against the defendant for the amount of $40 per month for ten (10) months of each and every year, to be paid on the first day of each month, and for which execution may issue against the defendant.”

Plaintiff filed a timely motion for new-trial “as to Count I of her petition,” but defendant filed no after-trial motion. On February 2, 1966, the court found “after reading briefs of counsel * * * that it was in error in dismissing Count One of plaintiff’s petition and because the court was in error therein and believing that the hearing of evidence in a new trial as to Count One might cause a different ruling in Count Two, it is the order and judgment of the court that a new trial be granted herein as to both Count One and Count Two.” On February 11, 1966, plaintiff filed her notice of appeal from the order of February 2 “setting aside judgment for plaintiff rendered on Count II * * * on the 29th day of October, 1965”; and on February 12, 1966, defendant filed his notice of appeal “from the judgment * * as to Counts I and II of said petition.”

On her appeal docketed here as No. 8556, plaintiff timely filed both transcript and brief. However, defendant has neither filed a brief in No. 8556 nor taken any steps to perfect his appeal, docketed here as No. 8557. In failing to file a respondent’s brief in No. 8556, defendant has' indulged a practice repeatedly condemned by the courts [Mannon v. Frick, 365 Mo. 1203, 295 S.W.2d 158, 161; Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 319; M.F.A. Central Cooperative v. Harrill, Mo.App., 405 S.W.2d 525, 527 (2); Holman v. Fincher, Mo.App., 403 S.W.2d 245, 249] but has incurred no penalty imposed by rule or statute. However, his failure to file an appellant’s brief in No. 8557 requires the dismissal of that appeal. V.A.M.R. Rules 83.06, 83.09 and 83.26; White v. Kuhnert, Mo.App., 207 S.W.2d 839, 840(2); Lively v. Ridgewood Construction Corp., Mo.App., 371 S.W.2d 658, 659. See Dye v. Geier, Mo., 345 S.W.2d 83, 89(6); Anderson v. Kuhs, Mo.App., 213 S.W.2d 238.

The narrow question raised by plaintiff’s brief in No. 8556, upon which determination of the appeal in that case depends, is whether or not the trial court had authority to set aside the order and judgment on Count II modifying the original decree of February 17, 1959, which divorced the parties and awarded custody of the boy but was silent as to his support. Cf. Roberts v. Roberts, Mo.App., 292 S.W.2d 596. The judgment was entered on October 29, 1965. Within the permitted period of fifteen days thereafter [V.A.M.R. Rule 72.02], to wit, on November 5, 1965, plaintiff filed a motion for new trial in which she complained of the judgment against her on Count I but quite understandably sought no change in, and made no mention of, the judgment for her on Count II. As we have noted, defendant filed no after-trial motion. On February 2, 1966, the ninety-sixth day after entry of judgment on October 29, 1965, the trial court granted a new trial as to both Count I and Count II.

The order granting a new trial as to Count II was made of the court’s own initiative and not in response to any after-trial motion. Subject to the limitations that a judgment may not be set aside arbitrarily or capriciously [Willis v. Willis, Mo.App., 274 S.W.2d 621, 625(5)] or without giving the party to be affected adversely reasonable notice and an opportunity to be heard [Hoppe, Inc. v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 350(7), 351(9), 23 A.L.R.2d 846; Savings Trust Co. of St. Louis v. Skain, 345 Mo. 46, 131 S.W.2d 566, 574(14)], the trial court has, during the period of thirty days after entry of judgment but not thereafter, the inherent power to vacate a judgment, of its own initiative, for good cause. V.A. M.R. Rule 75.01; V.A.M.S. § 510.370; Stein v. McDonald, Mo., 394 S.W.2d 297, 300(5); Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, 27(1); Ridenour v. Duncan, Mo., 246 S.W.2d 765, 767(1); Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 539(7); Romig v. Romig, Mo.App., 360 S.W.2d 737(1); Harrison v. Weisbrod, Mo.App., 358 S.W.2d 277, 282 (4); Long v. Stilwell Homes, Inc., Mo.App., 333 S.W.2d 103; State ex rel. Ballew v. Hawkins, Mo.App., 361 S.W.2d 852, 856(5).

It is clear that the trial court was utterly powerless to grant, of its own initiative, a new trial on Count II as it undertook to do by its order of February 2, 1966, ninety-six days after entry of judgment on October 29, 1965. See again the authorities cited supra. Of course, the judgment on Count II fixing an allowance for future child support is and will continue to be subject to modification upon proof of a sufficient change of conditions [V.A.M.S. § 452.070; Paxton v. Paxton, Mo.App., 319 S.W.2d 280, 290(15); Bettinger v. Bettinger, Mo.App., 355 S.W.2d 354] “affecting (1) the need on the one hand and (2) the ability of the opposite party to provide. Montgomery v. Montgomery, Mo.App., 257 S.W.2d 189, 197; Butler v. Butler, Mo.App., 262 S.W.2d 330, 335.” Bachler v. Bachler, Mo.App., 339 S.W.2d 846, 851(3). See Gianformaggio v. Gianformaggio, Mo.App., 341 S.W.2d 293, 297(6); McCullough v. McCullough, Mo.App., 402 S.W.2d 623, 628-629.

We observe in passing that the trial court was empowered to set aside its dismissal of Count I of plaintiff’s petition on February 2, 1966, the eighty-ninth day after the timely filing on November 5, 1965, of plaintiff’s motion for new trial complaining of and directed to the adverse judgment on Count I [V.A.M.R. Rules 72.02 and 78.04], and that the court’s grant of a new trial on Count I was proper, because the father’s duty to support his children while they are lawfully in the mother’s custody remains as at common law even though the divorce decree is silent as to child support [Lodahl v. Papenberg, Mo., 277 S.W.2d 548, 551(5); Berkley v. Berkley, Mo., 246 S.W.2d 804, 807, 34 A.L.R.2d 1456; Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762, 764-765(2), 81 A.L.R. 875] and, subject to certain exceptions not here material [Broemmer v. Broemmer, Mo.App., 219 S.W.2d 300, 303(5)], the mother may recover, in an independent action, a reasonable sum for necessary expenditures theretofore made for the child’s support. Allen v. Allen, 364 Mo. 955, 270 S.W.2d 33, 35(2); Marley v. Marley, 356 Mo. 870, 204 S.W.2d 261, 263(1); Broemmer v. Broemmer, supra, 219 S.W.2d at 304(8).

It is the judgment of this court (1) that, in No. 8556, the order of the Circuit Court of Howell County, Missouri, entered on February 2, 1966, (a) should be affirmed insofar as it granted a new trial on Count I of plaintiff’s petition and the cause should be remanded to said circuit court for retrial on said count but (b) should be set aside insofar as it undertook to grant a new trial on Count II of plaintiff’s petition and the cause should be remanded to said circuit court with directions to reinstate, as of October 29, 1965, the judgment then entered on said count; (2) that, in No. 8557, defendant’s appeal should be dismissed for failure to comply with the applicable provisions of the Supreme Court Rules of Civil Procedure; and (3) that the court costs upon both appeals, i .e., in Nos. 8556 and 8557, should be and hereby are taxed against defendant, for which execution may issue.

TITUS, J., concurs.

HOGAN, J., not participating.


source: Caselaw Access Project

author: SPERRY, Commissioner. PER CURIAM:

license: Public Domain

text:
    Nelda Lee PYPES v. Delos E. PYPES, Jr.
    No. 24498.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.

      Burr S. Stottle and Delos E. Pypes, Sr., Kansas City, for appellant.
    Kaer P. Vanice, II, and W. Raleigh Gough, Kansas City, for respondent.
   SPERRY, Commissioner.

This is an action for divorce instituted by plaintiff, wife of defendant. Defendant appeals from a judgment and a decree finding plaintiff to be the innocent and injured party, granting her a decree of absolute divorce, custody of their four minor children, denying her alimony, granting her $7.00 per week for each child for child support, and for attorney’s fees in an amount of $250.00.

Plaintiff pleaded and showed by evidence that she and defendant were married June 3, 1954, and lived together as husband and wife until February 2, 1964; that their home was at all times in Kansas City, Missouri; that four children were born to the marriage; that their names and ages at the time of filing the petition, February 7, 1964, were as follows: William Graham, 8½ years; Elizabeth Rose, 7½ years; Evelyn. Louise, 6; and David Lloyd, 4 years.

She further alleged that she at all times during the marriage relationship faithfully demeaned herself as defendant’s wife and fully performed her duties, but that defendant has rendered towards her such indignities as to render her condition in life intolerable. She pleaded that defendant has been critical and found fault with plaintiff in the presence of friends, relatives and acquaintances; that the defendant quarreled with plaintiff without justification or excuse; that the defendant is cold and indifferent toward plaintiff and does not manifest any love or affection for her; that defendant has, on many occasions, assaulted and beat plaintiff; that he has stated that plaintiff deserves any torture that can be devised; that defendant has-threatened to kill plaintiff with a knife and has choked her; that he has thrown garbage and water on plaintiff and has torn her clothing off of her; that he has forced plaintiff into the bathtub and attempted to-turn on the hot water; that he has stated that he hates plaintiff.

She offered substantial credible testimony tending to prove every specification set out in her petition. In addition thereto' she offered substantial evidence of other indignities offered and committed by defendant, including evidence that he cut up her wedding gown, and that, after she collected the pieces, intending to preserve them for sentimental reasons, he burned the pieces; that he threw a hot ham across the-dining room,, narrowly missing their sort and her father who was a guest at her father’s birthday dinner; that he tore her glasses from her face and broke them; that he broke the glass covering of the case in which her nurse’s certificate was kept and tried to destroy the certificate; that, for no good reason, he struck and knocked their elder son across the room; that he took from the elder daughter a bicycle which plaintiff’s parents had given her and refused to permit her to use it; that he claimed a divine, God-given right to chastise her in any way, and at any time, that he saw fit. The evidence was that these incidents took place and occurred over a long period of time, at least five years or longer, and that they were continuous.

There was ample evidence, from highly qualified witnesses, tending to prove that plaintiff is a qualified and capable nurse and is of good character and reputation. Defendant, in his testimony, virtually admitted the occurrence of each and every incident above mentioned, but attempted to justify his conduct, in some manner, on the theory that he was then under great emotional stress, was not steadily employed, and was worried about supporting his family and preserving the integrity of his marriage. He admitted that plaintiff was a good woman, a good mother, that he loved her; and he stated that he had tried to reconcile their differences and persuade her to resume the marital relationship, which she refused to do.

Under the allegations contained in the petition, and under the evidence offered by plaintiff in support thereof, the court was fully justified in finding the issues for plaintiff and against defendant, absent any further showing. In view of defendant’s almost complete failure to deny the allegations or to controvert the evidence in support thereof, the court could scarcely have done otherwise than he did do unless there be some valid, legal excuse for defendant’s conduct. Citations in support of this declaration would be superfluous.

However, defendant contends that he was insane at the times during which the incidents above mentioned occurred; that he was not mentally capable of controlling his actions. The record fails to show that he was ever adjudged insane or mentally incompetent. There is mention in evidence to the effect that, after the separation, plaintiff attempted to have him adjudged legally incompetent, to have a guardian appointed for him, and to have him confined for treatment because she believed that he might harm himself. However, she was later advised that the legal action had been dismissed. No hearing was ever held on the matter so far as plaintiff was advised.

This trial commenced March 11, 1965. Plaintiff offered testimony of herself and of a number of other witnesses. She stated that defendant had been treated in psychiatric institutions on several occasions and that, when he committed some of the acts complained of, she believed that he must have been mentally ill or insane. Her mother stated that, because of his conduct on some of the occasions shown in evidence, she believed he was abnormal or insane. A nurse, classmate of plaintiff, who had observed mentally ill patients and who had observed defendant’s demeanor and conduct at various times stated that she could not say that he was, on those occasions “abnormal”, but that she believed that he deviated from the normal. Defendant testified regarding occasions when he had received psychiatric treatment at institutions in New Jersey, Topeka, Kansas, and at Kansas City, Missouri. He spoke of being willing to consult a marriage counsel-, lor in the hope that his marital difficulties, might be solved.

After both parties had “rested”, the court announced that the cause would be taken under advisement. Thereafter, on April. 28, 1965, the court made an order appointing Mr. J. L. Simms as guardian ad litem for defendant. Thereafter, June 4, 1965, a report of an examination, made at the Psychiatric Receiving Center, Kansas City, on May 18, 1965, was file^L of record. It was signed by Dr. Hornstra. The report indicates a finding that defendant has a “brittle” personal organization with psychiatric episodes labeled as schizophrenic; that some of his actions in the past are due to his personality; that others “might be” a manifestation of a psychotic product over which he had no control at the time the incident occurred.

Thereafter, June 9, 1965, the court, of its own motion, ordered that defendant submit to a psychiatric examination by Dr. G. J. Lytton, M.D., a qualified psychiatrist; that the guardian ad litem make such arrangements; and that Dr. Lytton be furnished with a copy of the report signed by Dr. Hornstra.

On June 23, 1965, Dr. Lytton filed his report wherein it was stated that defendant has no illusions or hallucinations; that he is rigid in his thinking; that he is right, in his thinking, and that the world is wrong; that he is neurologically sound; that, in Dr. Lytton’s opinion, he is suffering from a schizophrenic reaction, paranoid type, in partial remission; that he is capable of managing his affairs, but that, under emotional pressure he might break down. (In a subsequent report dated August 10, 1965, Dr. Lytton stated that defendant was suffering from a schizophrenic reaction, probably paranoid in type and “could fall into the legal classic fixation of being insane”; that, when in the grip of strong emotions he is incompetent, unable to care for himself, and is not responsible for his reactions).

Thereafter, September 1, 1965, the court heard further evidence in the case, the parties, their counsel, and the guardian ad litem being present. Mr. Simms requested, and he was granted permission to produce the testimony of both Dr. Lytton and Dr. Hornstra. No objections were made to such procedure.

Dr. Lytton testified as to his psychiatric examination of defendant and stated that, in connection therewith, he had read the testimony of plaintiff in this case. He stated that, in his opinion as a physician and experienced and qualified psychiatrist, he believed defendant was lucid and sane at the time that he committed the acts complained of and shown in this record; that defendant is somewhat of an enigma to him, professionally, but that, after deliberation following his written reports, he is now of the opinion that defendant was, at those times mentioned in evidence, able to restrain himself had there been a policeman or other officer present; that he knew right from wrong; that his actions are not necessarily indicative of insanity. He was cross-examined by counsel for defendant and witness stated, in effect, that each of the episodes related in evidence could have been due to a “temper tantrum”, or to a psychiatric episode; but witness was firm in his expressed belief that the episodes mentioned were not the result of a psychotic condition but, rather, due to controllable, but uncontrolled temper tantrums.

Dr. Hornstra stated that defendant is suffering from a personality disorder; that he is brittle in his adjustment to life; that he will not accommodate himself to any situation not of his choosing; that, because thereof, he might, under emotional strain, break rather than bend; that he seldom loses control over his actions; that he has no evidence to show that defendant ever actually was unable to control himself, not when he threw the ham, or when he cut up the wedding gown. He stated that the episodes complained of were caused by anger rather than by a psychotic condition.

Defendant did not express surprise upon the production of these two medical witnesses, nor claim surprise, at that time. He now claims their testimony differed from opinions previously filed in writing with the court and that he was “surprised” to his detriment. He made no request for continuance in order to gain time to produce countervailing evidence. His first recorded dissatisfaction with this procedure appears in his motion for new trial. He urges that point here as grounds for reversal. His objection comes too late for us to consider it. Keyte v. Parrish, 399 S.W.2d 601, 605 (Mo.App.).

If the evidence in this case on the question of defendant’s mental fitness is in conflict, then we will defer to the finding of the trial court on that subject. Thomas v. Thomas, 288 S.W.2d 689, 696 (Mo.App.). In any event we cannot hold, under the evidence in this case, that the judgment herein is clearly erroneous. It must be affirmed. Thomas v. Thomas, supra.

The judgment is affirmed.

MAUGHMER, C, concurs.

PER CURIAM:

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

All concur.


author: WOLFE, Presiding Judge.

text:
    STATE of Missouri ex rel. John P. O’REILLY, Relator, v. Hon. Robert J. KIRKWOOD, Judge of the Circuit Court of the City of St. Louis, Respondent.
    No. 32757.
    St. Louis Court of Appeals. Missouri.
    Oct. 11, 1966.
    Sorkis J. Webbe, St. Louis, for relator.
    Milton F. Svetanics, Jr. pro. se.
   ORIGINAL PROCEEDING IN PROHIBITION

WOLFE, Presiding Judge.

This is an original action in prohibition to prohibit the respondent judge from proceeding to hear a primary election contest without service of a summons on John P. O’Reilly, the relator, whose election is being contested.

The election contest was instituted by Mr. Milton F. Svetanics, Jr. Both Mr. Svetanics and Mr. O’Reilly were candidates in the primary election seeking to be named as nominee on the Democratic ticket for the office of State Representative from the 51st District. Mr. O’Reilly was certified by the Board of Election Commissioners of the City of St. Louis as the elected nominee. Within five days thereafter Mr. Svetanics served upon Mr. O’Reilly notice of his intention to file a petition charging irregularities in the election. A petition was filed in due time after service of the notice. Upon the petition being presented to the court it set August 26, 1966, as the date for the hearing of the contest. A summons was issued but no service was had on this to Mr. O’Reilly.

The matter was continued to another date and an alias summons was issued. No service was obtained on Mr. O’Reilly on this summons, and another summons was issued to another date. Upon the last setting of this case for hearing, counsel for Mr. O’Reilly appeared specially for him for the sole purpose of objecting to the jurisdiction of the court because no summons had been served upon O’Reilly at that time. The court after a hearing on the objections overruled them on September 21 and stated that he would proceed to hear, try and decide the contest of the election without service of summons on O’Reilly.

It was then that O’Reilly filed his petition for prohibition in this court. With the petition he offered the file and the minutes of the circuit court which reflect the facts set out above. A preliminary writ was issued and return was made in due time by the respondent. In the return respondent asserts that the notice of intention to file the petition in the election contest, which notice was served upon O’Reilly, was sufficient to give the circuit court jurisdiction to proceed with the hearing without further notice by summons of the time of the hearing. The relator then answered the return so filed and requested judgment on the pleadings. The facts and sequence of events are not in dispute.

The question presented is whether or not respondent circuit judge may proceed with the hearing of the election contest to which hearing O’Reilly has never been summoned.

The law as it relates to primary elections is a separate code. (RSMo 1959, § 124.010 to 124.050, V.A.M.S.) Sec. 124.010 provides first for a notice of the contestor’s intention to file a petition and this notice must be served upon the candidate who has been certified as elected by the Election Commissioners, within five days after such certification. The notice is required to state briefly the particulars of the irregularities which the contestor contends were committed. The petition, which is verified, is filed and presented to the circuit judge. Sec. 124.020 provides that the judge shall convene court for the purpose of hearing such contest and that a summons shall be issued forthwith to the contestee returnable to the day designated for the hearing by the court or judge. The summons may be served in any county of the state in the manner provided for the serving of process in civil actions.

Since the summons as required by the statute has never been served on the contestee the court may not at this time proceed with a hearing of the contest. State ex rel. Frazier v. Green, Mo.App., 143 S.W.2d 64. It appears, however, that there may yet remain sufficient time for service of such summons and therefore our final judgment in prohibition is that the respondent is prohibited from proceeding to hear the election contest until such time as a summons informing the contestee of the time of the hearing shall be served upon him in accordance with the law.

ANDERSON and RUDDY, JJ., concur.


author: DOUGLAS W. GREENE, Special Judge.

text:
    Vivian Y. SOSA, Appellant, v. VELVET DAIRY STORES, INC., a Corporation, and Cletus F. Steffes, Respondents.
    No. 24282.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.
    Jack Z. Krigel, Cleary & Krigel, Kansas City, for appellant.
    Russell D. Jacobson, Max W. Foust, Kansas City, for respondents.
   DOUGLAS W. GREENE, Special Judge.

This case had its origin in a collision between automobiles driven by Vivian Y. Sosa and Cletus Steffes, which occurred on March 1, 1962, in Jackson County, Missouri. Plaintiff, hereinafter called appellant, filed suit for damages against defendants Steffes and Velvet Dairy Stores, hereinafter called respondents. The petition alleged negligence on the part of respondents and stated that appellant had received personal injuries as the result of the collision which consisted of bruises to her back, spine, and leg, and a lumbar disc and soft tissue injury. She asked for $15,000.00 damages.

Respondents answered. They denied negligence, pleaded contributory negligence on the part of appellant, and further pleaded that appellant and her husband Felix Sosa did sign and execute a release which released respondents from all liability for the collision in question; that the consideration for said release was $239.03, which amount was tendered to appellant and her husband, and that the release was in full accord and satisfaction of any claim appellant may have had against respondents as a result of the collision and was an absolute bar to appellant’s cause of action.

Appellant’s reply admitted the execution of the release by appellant and her husband. It further stated that appellant and her husband did not know she had received any personal injuries as a result of the collision when she signed the release, and that appellant and respondents were mutually mistaken as to whether any personal injuries had been sustained by plaintiff; that she had rescinded and withdrawn the release before she was tendered the $239.03 in question; that the amount in question was grossly inadequate to cover personal injuries and property damage as it was in the exact amount of the automobile repair estimate, and that by reason of such mutual mistake and failure of consideration the release was invalid.

Respondents filed a motion for summary judgment which was overruled. Thereafter, at the time of trial, respondents refiled their motion for summary judgment and- a hearing was held on said motion. Evidence was introduced, which included portions of appellant’s deposition and various exhibits such as letters, releases, forms, and affidavits, the pertinent portions of which are hereinafter set out. It was also stipulated for the purposes of the motion (incorrectly stated as appeal by respondents’ counsel) that the issue of a causal connection between the injuries alleged by appellant and the accident in question would not be raised, but the right to contest such issue was reserved in the event the case was tried. Thereafter, the trial court sustained the motion for summary judgment. From such ruling, this appeal is taken.

The material facts before the trial court were as follows:

The collision occurred on March 1, 1962. At that time appellant was 43 years old and was married. She was not thrown into the windshield, and had no cuts, lacerations, or scratches. Later she noticed some bruises on her legs. Within twenty or thirty minutes after the accident she got in her car and drove to her place of employment at the Leawood Country Club where she worked her regular shift. She did not see a doctor. She told her husband about the accident. She also called her insurance agent, Herman Falke, and reported the accident. She talked to him again the next day and was told to get some estimates of her car damage. She obtained two estimates, one of which was from Southtown Motors in the sum of $239.03. She mailed the estimates to Mr. John Miller, at the suggestion of Mr. Falke, about one week after the accident. Mr. Miller was a claims adjuster for her liability and collision carrier, the Vanguard Insurance Company.

Appellant testified in her deposition that she didn’t realize that she had sustained any injuries from the accident until about April 9, 1962. However, she also testified that within a week or two after the accident she began to feel bad. Her entire lower back was hurting and so was her right leg. She had pain when she walked; she limped and took aspirin and anacin. Her leg and back hurt at night and interfered with her sleep. All of this took place within the first two weeks after the accident. When asked if she intended to make a claim against Mr. Steffe’s insurance company so she wouldn’t have to pay her fifty dollar deductible on her collision policy she said, “the fifty dollar deductible never entered my mind because I knew he had hit me and he had liability.” Appellant did not contact respondents’ insurer. It appears that Mr. Falke or Mr. Miller did, as she received from respondents’ carrier an accident report form which came by mail. She filled out the form herself, signed it, and filled in the date, March 11, 1962. She mailed the report back either to respondents’ insurer or to Mr. Miller. She couldn’t recall whether or not she enclosed any car estimates.

The report gave a description of the accident which was caused by a skid on an icy street by an automobile driven by respondent Steffes. Plaintiff was out in the center of the street on a hill. She pulled over towards the curb and stopped. Steffes, who was going about fifteen miles per hour, tried to slow down or stop, but his car skidded and struck the car of appellant. The report stated the damage to her car was in the sum of $239.03. In answer to a question in the report “was anyone injured?” appellant wrote “no”. Shortly thereafter she received a release from respondents’ insurer. It came through the mail to her home. Appellant had the release for two or three days before she signed it. On March 30th, appellant and her husband signed the release. A Mrs. Hunt also signed it as a witness. Appellant could read and proved it by reading the release in full when her deposition was taken. The release provided that in consideration of $239.09, appellant and her husband released respondents from all claims, demands and causes of action for all property damage and personal injury, known or unknown that appellant suffered as a result of the collision in question. It further declared that any injuries sustained in the collision by appellant might be permanent and progressive and that recovery therefrom was uncertain and indefinite, and that in making the settlement appellant was relying on her own judgment as to the nature and extent of her injuries. It further stated that the release was given and accepted pursuant to compromise of a doubtful and disputed claim, liability for which was expressly denied. It concluded by stating that the release was the entire agreement between the parties, and was contractual and not a mere recital. It stated that appellant had carefully read the release, understood its contents, and signed the same as her own free act and deed. Directly over appellant’s signature appears in bold type the words “Caution! Read Before Signing.”

Appellant mailed the executed release to Mr. Miller, who mailed it to respondents’ liability carrier with a covering letter. The letter requested that the company forward their draft made payable to appellant and her husband to him, and he would forward it on to appellant. This letter was dated April 4, 1962.

Respondents’ insurer then issued their draft dated April 10, 1962, made payable to appellant and her husband in the sum of $239.03. The face of the draft stated it was in full satisfaction of all claims against respondents as a result of the accident in question. The draft was delivered to her at the hospital by someone. She didn’t remember who or when. It had been mailed to her home.

The record is hazy as to when she went to the hospital. It was sometime between April 7th and April 9th. There is nothing in the record to show what she was in the hospital for. On April 10, the same day the draft was mailed to appellant, but one day before she received it, Mr. Miller wrote respondents’ insurer advising them that the settlement draft had not been received and the releases were withdrawn. The letter stated that the releases were for property damage only, and that Miller was now informed Mrs. Sosa had suffered personal injury. Miller asked for a return of the release. She employed an attorney on April 11th. She didn’t remember whether she gave him the draft, mailed it to him, or her huband gave it to him. Her reply admits the draft was tendered to her on April 11th. Her attorney mailed the draft back to respondents’ liability carrier on April 19, 1962. The draft was not endorsed. The attorney requested the release be returned and stated that the release only covered property damage and not the personal injuries of appellant. Appellant also stated in her deposition that she thought the $239.03 was for fixing her car, and that was all she wanted at the time she signed the release. No one discussed the release with her, or the accident report prior to the time she signed them. When she was asked on her deposition if she read the release, she stated, “I just read the part where it says my car was going to be fixed. I was getting the exact amount that the Southtown Motors had given me the estimate for and that is as far as I went.” She further said she did not know that the release was a release of all claims, but only of property damage.

Plaintiff had a limited education but was under no disabilities. She could read and write, filled in the accident report in which she gave a narrative description of the accident and drew a diagram, read the release in full at the time of her deposition, which contained many legal terms, obtained her own estimates of damage to her car, and knew the difference between liability and fifty dollar deductible collision insurance. She was never examined by any doctor prior to her execution of the release. She never saw, or talked to, any agent of respondents. All of her contacts with them were by mail, and usually through the claims adjuster for her own company. There is no claim that anyone induced her to sign the release, or that anyone misrepresented anything to her as to her physical condition. No one told her the release was only for property damage. The first knowledge respondents had from any source that appellant was claiming personal injuries as to the result of the accident, and was claiming that the release was only for property damage, was on the receipt of Mr. Miller’s letter so advising them which was dated April 10, 1962.

Appellant alleges three errors on the part of the trial court in sustaining respondents’ motion for summary judgment. The first allegation of error is that there were genuine issues of material fact between the parties, and that therefore respondents were not entitled to summary judgment. It is true that a summary judgment can only be rendered if the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that a party is entitled to a judgment as a matter of law. Sup.Ct.Rule 74.04(c), V.A.M.R. It is claimed by appellant that the question of whether her alleged injuries were caused by the accident was a material fact in issue. Such is not the case. Respondents admitted, for the purpose of the hearing on the motion, the issue of causation. Appellant so concedes in her own brief. If the release was valid, causation is immaterial. We therefore rule this point against appellant.

Appellant’s second allegation of error is that there was a total failure of consideration for the release, as tender of the stated consideration of $239.03 was made seven days after the release was returned by appellant to respondents’ insurance carrier. She contends that she “withdrew” the release by letter of her agent, John Miller, to respondents’ carrier, which letter was dated April 10, 1962. There is no evidence that respondents’ agent received the letter before appellant received the draft on April 11, 1962.

The evidence is not disputed that she received the release through the mail; that she kept it several days, and then signed it and sent it back to respondents, to whom it was transmitted by her agent Mr. Miller in his letter of April 4, 1962. Miller asked that the draft be sent to him and that he would forward it to appellant. There is no evidence that this procedure was followed, but at any rate, the letter containing the draft came to her home, after she had entered the hospital, and was delivered to her in the hospital on April 11, 1962. After she received the draft her attorney, who she had employed on April 11, 1962, mailed it back to respondents. In his letter no objection was made as to the form of the tender. His only contention was that the release was only intended to cover property damages and not personal injuries to Mrs. Sosa.

There is no Missouri case directly in point on this issue. A somewhat similar factual situation was present in Bogus v. Birenbaum, Mo.Sup., 375 S.W.2d 156. In Bogus, plaintiff was involved in an automobile accident on September 16, 1960. She was pregnant at the time and was thrown against the steering wheel. She felt a pain in her chest and stomach. After she got home she was upset and vomited for several days. Defendant’s liability carrier called plaintiff the day after the accident, asked her how she was feeling and she said “fine”. The adjuster talked to her husband the next day and was told the wife was not injured. Mr. Bogus obtained an estimate of his car damage of $66.86 and mailed it to the adjuster, who prepared a release in that amount and mailed the release to plaintiff. The release was undated but was signed between October 21st and November 1st. On November 1st a draft in the amount of $66.86 was mailed to plaintiff. It was received by her, but not cashed, and was sent back to defendant’s carrier, as plaintiff was having more trouble with her pregnancy. It was established later that she had suffered a miscarriage. The release was held valid on a suit to set it aside, but on the grounds that no causal connection was proved between the accident and plaintiff’s injuries. Courts in other jurisdictions have had occasion to deal directly with the problem. In Hofland v. Gustafson, 132 Cal.App.2d Supp. 907, 282 P.2d 1039, plaintiff signed and delivered a release to defendant’s carrier on June 16, 1953, which recited it was in consideration of $420.00. It was a general release. Before the draft, which was dated June 24th, was received from the insurance company, plaintiff’s attorney had on June 18, 1953, sent a notice of rescission to the insurance company. Failure of consideration among other things, was alleged in the letter, the only evidence of which was the eight days which elapsed between the signing of the release and the receipt of the check by plaintiff. The check was returned to defendant on July 2nd by plaintiff.

The court upheld the release. In a well reasoned opinion, the court stated that the presentation of the release to plaintiff for her signature was an offer on the part of defendant and was accepted as such by plaintiff when she signed it and delivered it to defendant, which then created an obligation on defendant to pay the consideration stated. The court further stated that since time was not of the essence of the contract, payment within a reasonable time was sufficient, and that the receipt of the draft by plaintiff only eight days after she gave a release was payment within a reasonable time. The rule announced in Hofland was followed and approved in Johnson v. Norfolk, 76 So.Dak. 565, 82 N.W.2d 656.

Further, under Missouri law where an agreement to accept a stipulated amount in satisfaction of a judgment or claim fixed no time for payment, it has been held that payment, or a tender of payment, within a reasonable time is sufficient and will be a bar to a claim of failure of consideration. Kahn v. Brunswick-Balke-Collender Co., Mo.App., 156 S.W.2d 40; Evans v. Evans, Mo.App., 28 S.W.2d 416. Also see Landau v. St. Louis Public Service Co., Mo.App., 267 S.W.2d 364, and Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751.

We therefore hold that a delay of seven days between the time appellant forwarded the release to respondents, and the time that she received the draft was not an unreasonable delay and does not justify appellant’s claim of failure of consideration. We therefore rule this point against appellant.

The third and last allegation of error by appellant is the claim that both appellant and respondent believed that appellant suffered no personal injuries as a result of the collision; that respondent had secured an accident report from appellant in which report she told them she had received no personal injuries, and that this was the only information respondents had in regard to her physical condition. Appellant argues that therefore the question of mutual mistake of fact should have been submitted to a jury. In support thereof, appellant cites Goodman v. Missouri Pacific Railroad Company, Mo.Sup., 312 S.W.2d 42. Goodman was an action brought under the Federal Employers Liability Act, 45 U.S.C.A. § 51 et seq. Plaintiff there was injured on July 9, 1954, when a 305 pound piston assembly fell on his back. He was hospitalized on Friday and returned to work the following Tuesday. He went back to the hospital twice for treatment. On July 21, 1954, he signed a release for 15.00, which was part of one day’s pay. Plaintiff’s physician, a Dr. Castles’, told him he would be all right. Defendant’s claim agent Calvert told plaintiff $15.00 was all he could pay him and asked him to sign the release, which he did. Calvert had Dr. Castle’s report which said plaintiff had no permanent injuries. Plaintiff didn’t tell the claim agent at the time he signed the release that he was still having trouble with his back and knee, as the doctor had told him he would be all right. It was later found that plaintiff had serious injuries caused by the accident.

The court held that under those facts, the trial judge was justified in submitting the issue of mutual mistake to a jury. In Goodman, as well as in Prince v. Kansas City Southern Ry. Co., 360 Mo. 580, 229 S.W.2d 568, and Cleghorn v. Terminal Railroad Ass’n. of St. Louis, Mo.Sup., 289 S.W.2d 13, there were present the elements of reliance by claimant on statements made by defendant’s claim agents, or doctors, or both, to the effect that claimant had no permanent injuries. This is not the case here.

In Vondera v. Chapman, 352 Mo. 1034, 180 S.W.2d 704, plaintiff sued defendant for $25,000.00 for injuries allegedly received in an automobile collision. Defendant answered and pleaded a release executed by plaintiff nine days after the collision in which case plaintiff acknowledged the receipt of $175.00 in full settlement for all injuries, known or unknown, present or that might thereafter develop. Plaintiff, by reply, acknowledged execution of the release, but said that when it was executed her only known injuries were superficial and slight, and that after she signed the release she discovered additional injuries of which neither she nor defendant were aware when the release was signed, and that therefore the release should be held invalid because of mutual mistake. A motion to dismiss was sustained. On appeal, the court held that plaintiff made no charge of fraud or unfair dealing; that the time that elapsed between the accident and the release (9 days) would ordinarily be deemed sufficient to enable plaintiff to determine the extent of her injuries, and that she was not induced to settle on the assurances of a physician, a trained claim agent, or defendant.

The court further stated plaintiff had a better opportunity to know her condition than defendant, and that since the parties dealt at arms length and in good faith, and as the release covered unknown injuries that might later develop or become known, the release would be upheld. The court recognized that a taint of fraud or unfairness coupled with a grossly inadequate consideration would justify the invalidating of a release, but said that it knew of no case, where a voluntary contract, fairly made, had been voided merely for inadequacy of consideration. Vondera is cited as the controlling authority in Benton v. Smith, Mo.App., 389 S.W.2d 392, a 1965 decision by this court.

The facts in Vondera are very similar to those in this appeal. Here appellant knew she was hurt. She noticed trouble with her back and leg within a week or two after the accident. She took aspirin or anacin for the pain. The pain kept her awake, and she limped when she walked. However, respondents had no knowledge of this. There is not a shred of evidence that they had any knowledge of her condition other than her statement in an accident report that was mailed to them by her in which she said no personal injuries resulted to anyone as the result of the accident.

These facts do not show a mutual mistake of a present existing fact. The mistake, if any, was unilateral, and made by appellant. Under the facts here, appellant’s faulty opinion as to her own injuries and their severity does not render the release invalid. Vondera v. Chapman, supra; Randolph v. Ottenstein, D.C., 238 F.Supp. 1011. Appellant also contends that the release should be held invalid because she believed that it covered only her property damage and not personal injuries. However, there is no evidence that such mistake, if any, was mutual. The release, which was mailed to appellant, stated that it covered personal injuries, present and future, as well as property damage. Appellant, her husband, and a witness, who was a friend of appellants, all signed the release. Immediately above the signatures appear the printed words “Caution! Read Before Signing.” Appellant could read, and did read the release in full when her deposition was taken. The release further contains the statement that the undersigned (appellant) had carefully read the release before signing. She does not claim that she is incompetent or illiterate. Such being so, she is presumed to know the meaning of the English language, and the import of the release that she signed. Brennecke v. Ganahl Lumber Co., 329 Mo. 341, 44 S.W.2d 627, 630. While the law affords everyone reasonable protection against fraud, it does not go to the romantic length of establishing the relation of guardian and ward between the courts and adults who are in full possession of their faculties and capable of managing their own affairs, and to indemnify them from the consequences of their own actions which they later regret. Poe v. Illinois Central Railroad, 339 Mo. 1025, 99 S.W.2d 82; Judd v. Walker, 215 Mo. 312, 114 S.W. 979.

The fact that the consideration was in the exact amount of one of appellant’s repair estimates ($239.03) is neither novel or material. In Bogus v. Birenbaum, supra, the release was for $66.86 (the estimated costs of repair of the automobile). See also Polley v. Atlantic Refining Co., 417 Pa. 549, 207 A.2d 900.

In Kavadas v. St. Louis Southwestern Ry. Co., Mo.App., 263 S.W.2d 736, the consideration was $12.18 (one day’s pay). Kavadas, in an effort to set aside the release said that he thought it was a receipt for one day’s pay. The draft with which he was paid had typed across its face the notation that it was in full satisfaction for all claims for injuries sustained in the accident. In Oakley v. Duerbeck Co., Mo.Sup., 366 S.W.2d 430, Claimant signed a release for the consideration of $1700.00 (the amount of his hospital expenses). He later, in a suit to set aside the release, claimed among other things he thought it was only to cover doctor bills.

In all of these cases the releases were upheld. In Oakley, the legal procedure was through summary judgment, as is the case here. We are of the opinion that appellant should be bound by her own bargain. If releases were to be easily set aside and settlements ignored, chaos would result. Defendants and their insur-anee carriers would be discouraged from settling claims and taking releases for personal injuries and would resort to the courts for a determination. This would be costly, time consuming, and burdensome on the parties involved, their attorneys, and the courts. The law favors settlements fairly made. Randolph v. Ot-tenstein, supra.

As we find no evidence in the record to justify a finding of mutual mistake and no evidence of fraud or unfairness coupled with a grossly inadequate consideration, we hold that there were no genuine issues of material fact to submit to a jury but only questions of law which, in our opinion, were correctly resolved by the trial court by its action in sustaining respondents’ motion for summary judgment. The judgment of the trial court is affirmed.

CROSS, P. J., and HOWARD, J., concur.

BLAIR, J., not participating.


author: CROSS, Presiding Judge.

text:
    HAWKEYE-SECURITY INSURANCE COMPANY, Plaintiff-Appellant, v. THOMAS GRAIN FUMIGANT COMPANY, a corporation, Defendant-Respondent.
    No. 24357.
    Kansas City Court of Appeals. Missouri.
    Oct. 3, 1966.

      James M. Shockey, Kansas City, Sprinkle, Carter, Sprinkle & Larson, Kansas City, of counsel, for appellant.
    Thomas J. Leittem, Robert R. Raymond, Kansas City, Shughart, Thomson & Kilroy, Kansas City, of counsel, for respondent.
   CROSS, Presiding Judge.

Plaintiff Hawkey e-Security Insurance Company sues defendant Thomas Grain Fumigant Company, a corporation, to recover the sum of $1861.00 which it had paid under a collision insurance coverage to an insured for damages to a 1961 Buick automobile. The loss resulted from a collision between the Buick automobile, which was owned and driven by plaintiff’s insured, Carl A. Davis, and a two-ton G.M.C. truck owned by defendant, and operated by its employee, John Leathers. Plaintiff brought this action as subrogee of Mr. Davis. Trial to a jury resulted in a verdict for defendant and judgment accordingly. Plaintiff appeals.

The collision occurred on July 18, 1961, in the outside northbound lane of Interstate 29, a limited access highway, at a point approximately three-tenths of a mile north of Armour Road underpass in Clay County, Missouri. Interstate 29 is a four-lane highway with two northbound and two southbound lanes separated by a grass medial strip. There is a wide dirt or gravel shoulder next to the outside northbound lane. The testimony is in conflict as to whether visibility from Armour Road to the point of collision was clear and unobstructed and as to whether the highway was straight or curved in the vicinity of the accident. The weather was clear and sunny and the concrete pavement was dry.

On behalf of plaintiff, Mr. Davis testified that he entered 1-29 at the Armour Road entrance and proceeded north, traveling in the outside lane. He overtook a car, passed it on the left, and returned to the right-hand lane. He then saw defendant’s truck on the right-hand shoulder of the northbound lane, approximately 300 to 400 feet ahead of him (to the north). At this point Mr. Davis’s wife, his passenger, inquired, “Honey, do you see that truck?” Mr. Davis replied “Yes”. Mr. Davis testified that when he first saw the truck it was in motion, “running — moving parallel with the highway” in a northerly direction, and that he was then three to four hundred feet south of the truck. “Anticipating” that he might have to move over into the left-hand lane, Davis looked in his rearview mirror and saw the car he had previously passed pulling out to pass him. Davis looked back north again and saw the truck pulling onto the highway from the shoulder. At approximately that point Davis’s wife repeated her question and again received an affirmative answer. Davis was then between 100 to 125 feet behind the truck, traveling 45 to 50 miles an hour. He did not apply his brakes, but looked again in his mirror and saw that the car passing on his left was even with his rear wheels. He glanced forward again and saw that the truck was “dead stopped” on the highway or moving very slowly, but still made no brake application. For the third time Davis glanced in his mirror and saw that the car passing him was “right there with me”. Then, for the first time, he applied his brakes. When he did so the Buick was “something less than around a hundred feet” behind the truck. After the car on the left had gone by, and at the “last moment” before the collision, Davis attempted to swerve to the left when his automobile was from 5 to 10 feet from the rear of the truck. The effort was unavailing and the Davis automobile, while still traveling about 35 miles per hour, struck the back end of the truck. Davis stated he did not sound his horn or swerve to the right onto the shoulder for fear of turning over. He also testified that he saw no signal from the truck, indicating it was about to enter the highway.

Mr. Leathers testified on behalf of defendant that, as its employee and the driver of the truck involved, he had been driving north on Interstate 29 prior to the accident, but had stopped on the right shoulder of the highway at the point above because he thought he had a flat tire. He stated he turned on the flashing left turn signal, got out of the truck, looked at his tires, reentered the truck, and again turned on the left turn signal after accidentally bumping it off, gave a left turn hand signal, checked in his outside rearview mirror for traffic, saw none approaching, and proceeded to drive forward onto Interstate 29. After traveling 75 to 100 feet north in the right-hand northbound lane the truck was struck in the rear by the Davis automobile. The truck was then traveling at about 5 miles per hour. Mr. Leathers testified that prior to the collision he did not hear any horn signal and that after the impact he saw no cars pass his truck northbound.

The appeal issues primarily stem from complaints by plaintiff that Instruction No. Four is erroneous in the respects hereinafter discussed. The instruction was submitted by defendant as a contributory negligence instruction, and reads as follows:

“Instruction No. 4
“Your verdict must be for the defendant whether or nor defendant was negligent if you believe:
“First, Carl Davis, plaintiff’s insured, either :
failed to keep a careful lookout, or
failed to stop, or
failed to slacken his speed, or
failed to swerve, or disregarded electric warning signals or arm signals given by defendant, and
“Second, Carl Davis’s conduct, in any one or more of the respects submitted in paragraph First was negligent, and
“Third, such negligence of Carl Davis, plaintiff’s insured, directly caused or directly contributed to cause any damage plaintiff may have sustained.
“M.A.I. 28.01”.

It is apparent that the quoted instruction is a composite of (1) the submission “failed to keep a careful lookout” as set out in MAI form 28.01 entitled “Contributory Negligence — Generally”, (2) the hypotheses that plaintiff’s insured “failed to stop or failed to slacken his speed or failed to swerve” which appear to be adapted from MAI form 17.04 entitled “Verdict Directing — Failure to Act after Danger of Collision Apparent”, and (3) an additional element — not derived from MAI — submitting the question whether plaintiff’s insured “disregarded electric warning signals or arm signals given by defendant”.

The propriety of the instruction is not challenged insofar as it submits the theory that plaintiff’s insured failed to “keep a careful lookout”. Certainly the instruction is not subject to criticism as to form, since it is composed in the exact language of MAI 28.01 (Contributory Negligence — Generally) and also comports with MAI 17.15 which is the approved form for a verdict directing instruction submitting a defendant’s failure to keep a lookout. These forms employ only the simple language that plaintiff (or defendant) “failed to keep a careful lookout”. In so drafting these forms the Committee recognized the prevailing rule that a submission so phrased is sufficient to authorize a jury finding of specific negligence in failing to keep a proper lookout, Jenkins v. Wabash Railroad Co., Mo.Sup., 322 S.W.2d 788, and that “[I]t is ‘unnecessary to submit the further hypothesis that by keeping a proper lookout defendant could have seen plaintiff’ or could have averted the collision”. Lincoln v. Railway Express Agency, Inc., Mo.Sup., 359 S.W.2d 759.

Although Instruction No. 4 is proper in form, insofar as it submits the lookout issue, we do not approve of the trial court’s action in giving it. As the MAI Committee comments, MAI p. 122, it is error to submit failure to keep a lookout unless there is evidence from which the jury could find that the party so charged could have, in the exercise of the highest degree of care, seen the object in question sooner than he did. Levin v. Caldwell et al., Mo.Sup., 285 S.W.2d 655; O’Neill v. Claypool, Mo.Sup., 341 S.W.2d 129. The evidence in this case does not warrant such finding. When plaintiff’s insured Davis entered Highway 29 (at a point approximately three-tenths of a mile from the place of collision) he was traveling northward in the right-hand lane behind another car also proceeding north directly in the line of his vision forward. Davis passed that vehicle on the left, and returned to the right-hand lane. It is not shown how far he traveled in executing that maneuver, but it may reasonably be assumed to be some substantial distance. Davis testified that after so passing the other car and returning to the right-hand lane he saw defendant’s truck on the shoulder ahead for the first time and that it was then approximately 300 to 400 feet in front of him. It is clearly shown and conceded by defendant that Davis thereafter constantly kept the truck in his view until the time of collision except for three momentary intervals when he glanced in his rearview mirror to observe the position of the car behind him. There is no basis of substantial evidence to support a finding that Davis could have seen the truck prior to the time he passed the automobile preceding him and in so doing obtained an unobstructed view in the direction of the parked truck.

Plaintiff’s first complaint of error in the instruction is that it did not require the jury to find that its insured knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision — as a prerequisite to the permitted findings that “plaintiff’s insured either — failed to stop or failed to slacken his speed, or failed to swerve * * *

It is plaintiff’s position that the hypotheses “failed to stop, or failed to slacken his speed, or failed to swerve” are specific submissions of contributory negligence, separate and apart from “failed to keep a careful lookout”, that the MAI Committee has formulated an approved instruction form (MAI 17.04) applicable for submission of those issues, in either verdict directing or contributory negligence instructions, and that such approved instruction, being applicable in this case, “shall be given to the exclusion of any other on the same subject”. Supreme Court Rule 70.01 (b), V.A.M.R. Plaintiff insists that this direction has not been observed inasmuch as Instruction No. 4 does not include the .essential element, required by the first paragraph of MAI form 17.04, that plaintiff’s insured “ * * * knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter * * * ” to have averted such casualty by taking preventive action as hypothesized.

Defendant undertakes to account for the omission of the quoted preliminary finding by arguing that “Instruction Number Four is not MAI 17.04”, but that instead it is a modification of MAI 28.01, and is primarily a “lookout instruction” as defined and approved in Moore v. Ready Mixed Concrete Company, Mo.Sup., 329 S.W.2d 14. Relying principally on the authority of that case, defendant insists that the hypotheses of plaintiff’s insured’s failure "to stop * * * slacken his speed * * * or * * * to swerve” do not constitute separate submissions of contributory negligence, but are a part of the “lookout” hypothesis, and that their effect was merely to restrict the jury to those specified acts in its determination of the question whether Davis (if he had kept a careful lookout) could have avoided the collision. Consequently, says defendant, it was not necessary that Instruction No. 4 include a finding that there was likelihood of collision.

In Moore v. Ready Mixed Concrete Company, supra, the case was submitted to the jury upon the primary negligence of a defendant in failing to keep a careful and vigilant lookout. The verdict directing instruction hypothesized “that had defendant Wohlgemuth kept a careful and vigilant lookout * * * he should have seen plaintiff * * * ⅛ time thereafter * * * to have stopped or slowed said concrete truck and have avoided the collision”. After analyzing the instruction the Supreme Court concluded on the basis of its grammatical structure that the only theory of negligence submitted by it was the defendant driver’s failure to keep a lookout. The court rejected plaintiff’s contention that the language “stopped or slowed” injected additional elements of negligence, and ruled that the instruction did not require a finding of apparent danger. The court said: “If the instruction had omitted the words ‘stopped or slowed said concrete truck and have,’ the portion under consideration would have read, ‘in time thereafter for defendant Wohlgemuth to have avoided the collision.’ In that event the instruction would admittedly have been proper, and the jury could have found any means supported by the evidence by which the driver of the truck could have avoided the collision. But plaintiff saw fit to restrict the jury to two means (stopping or slowing), both of which were supported by the evidence. In so doing plaintiff did not inject additional elements of negligence into the submission but merely restricted the jury in its determination of the question as to whether the driver of the truck (if he had kept a careful lookout) could have avoided the collision. Such was not prejudicial to defendants but, if anything, was beneficial to them. The nature of the instant (lookout) submission is such that plaintiff was not required to insert in the instruction the aforementioned finding which defendants contend should have been included therein (that there was apparent danger of a collision)”.

The import of the language employed in Instruction No. 4 hypothesizing that plaintiff’s insured “failed to stop, or failed to slacken his speed or failed to swerve” is readily distinguishable from the meaning ascribed by the Supreme Court to the qualifying and limiting phrase “in time thereafter * * * to have stopped or slowed said concrete truck” as contained in the Moore instruction. In the latter instance the references to “stopped or slowed” were in the nature of hypotheses which were “only evidentiary circumstances which the jury might consider in determining whether plaintiff discharged his legal duty to keep a lookout”. Fontana v. Davis, Mo.App., 382 S.W.2d 835. Also see Horrell v. St. Louis Public Service Company, Mo.Sup., 277 S.W.2d 612. By contrast, Instruction No. 4 clearly and grammatically informed the jury that plaintiff was to be held con-tributorily negligent if he (negligently) “failed to stop or failed to slacken his speed or failed to swerve”.

It is our conclusion that the “stop, or ⅝ * ⅜ slacken * * * or * * * swerve” postulates are no part of the lookout submission but that they inject into the instruction additional elements of hypothesized contributory negligence other than plaintiff’s failure to keep a careful lookout. MAI 17.04 was specifically formulated and adopted for the submission of those issues, in either a verdict directing or a contributory negligence instruction. See Notes on Use, MAI p. 120. The complete text of MAI 17.04 is as follows:

“17.04. VERDICT DIRECTING-FAILURE TO ACT AFTER DANGER OF COLLISION APPARENT.
“Defendant knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision in time thereafter to have (insert one or more of the following)
stopped
swerved
slackened his speed
sounded a warning
slackened his speed and swerved
slackened his speed and sounded a warning
swerved and sounded a warning but defendant failed to do so”.

MAI 17.04 was drafted in recognition of and in conformity with a well established rule of law which is stated as follows in Stakelback v. Neff, Mo.App., 13 S.W.2d 575:

“Even though it is true that this instruction counts upon primary negligence, and not the humanitarian doctrine, there was nevertheless no duty upon defendant to take any of the precautions hypothesized therein, unless there was apparent danger of a collision, * * *. 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 foregoing was quoted with approval in Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, where the court said:

“It is, of course, true that actionable negligence is the breach of a duty to protect another from injury, but the breach or failure to act must arise after the defendant has actual or imputed knowledge that his failure to do some act would be likely to produce an injury to the plaintiff. Here the defendant’s duty arose when he saw or by the exercise of the highest degree of care should have seen that the car in which the plaintiff was riding was likely to proceed into the path of the tractor. After this became or should have become apparent to defendant Johnson, the duty to slacken the speed of the tractor, change its course, or sound a warning, then arose and the jury should have been so instructed. Davidson v. St. Louis-San Francisco Ry. Co., Mo.Sup., 229 S.W. 786; Prague v. Eddy, 358 Mo. 327, 214 S.W.2d 521; Devoto v. St. Louis Public Service Co., Mo.App., 238 S.W.2d 66”.

See the Committee’s Comment on this question, MAI p. 120-121, and other cases there cited.

Civil Rule 70.01(b) requires that “Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject”. Therefore, inasmuch as MAI 17.04 is applicable in this “particular case” for submission of the “stop * * * slacken * * swerve” issues, its use was mandatory under the quoted rule. The rule was observed to the extent that the theories of plaintiff’s alleged negligence in failing to stop or slacken speed or swerve were appropriately hypothesized by Instruction No. 4 substantially in accordance with MAI 17.04, but was violated by the failure of the instruction to include the first paragraph of MAI 17.04 which would have required the jury to believe that “Defendant knew or by the use of the highest degree of care could have known that there was a reasonable likelihood of collision * * * ” as a predicate of their finding that plaintiff’s driver was negligent in failing to perform the evasive acts hypothesized. This violation of Rule 70.01(b) constitutes error, the prejudicial effect of which is to be judicially determined. Civil Rule 70.01(c).

Defendant insists that no prejudice to plaintiff resulted from the omission of the likelihood of collision requirement because it would be “logically inconsistent to assume that a jury would find that a failure to take action before an apparent need for action could be a contributing cause to an accident”. Defendant argues to the effect that the evidence overwhelmingly established that from the time plaintiff first saw the truck some 300 to 400 feet ahead of him he was aware that the two vehicles “were on a collision course”. .Hence, defendant says, it would be “superfluous” to include a “likelihood of collision element” in the instruction. Defendant cites and relies upon Witt v. Peterson, Mo.Sup., 310 S.W.2d 857, and Mullen v. St. Louis Public Service Company, Mo.Sup., 389 S.W.2d 838. Those cases do not support defendant’s position.

The Witt case is an exception to the general rule exemplified by Stakelback. The two cases are distinguishable on dissimilar facts. In the Witt case the Supreme Court ruled a lookout instruction sufficient without requiring a preliminary finding that plaintiff had reason to believe a collision was imminent. The court said: “Under Instruction No. 5 the jury was asked to find whether or not plaintiff was negligent by driving into the intersection without maintaining any lookout ahead or laterally for defendant’s car after it was in the intersection traveling straight westwardly. The uncontroverted evidence showed that both cars were traveling in straight paths that would inevitably cross and that while each was in the intersection it was visible to the other driver, if that other but looked. * * In view of the uncontroverted facts disclosed in the evidence and the limitations contained in the instruction we believe the instruction is sufficient in the complained of respect”. Continuing, the court further commented in support of the ruling: “The Stakelback case, and its announced rule, was discussed by this court in Taylor v. Alexander, supra (Mo.Sup., 283 S.W.2d 588), and what was said there distinguishes the Stakelback case from the present one. In DeVoto v. St. Louis Public Service Co., Mo.App., 251 S.W.2d 355, the same court that decided the Stakelback case was faced with about the same contention as plaintiff makes here, and likewise distinguished the two cases on substantially the same basis announced in the Taylor case and applicable to the instant case. See, also, Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691; Patton v. Hanson, Mo., 286 S.W.2d 829”.

Manifestly the Witt ruling was based upon an admitted evidentiary situation which compelled the conclusion that a collision between the two automobiles traveling toward each other within an intersection, (which has been characterized by the Supreme Court as a “very narrow” zone of peril, Taylor v. Alexander, supra) was imminent and inevitable unless preventive action was taken. The evidence in this case is not of such nature. The zone of peril was not limited to the confines of an intersection but extended to a possible distance of at least 300 to 400 feet on an open interstate highway. When the truck first came into the view of plaintiff’s insured, his automobile was traveling northbound on a through-traveled lane of the highway —the truck moving slowly northbound on the adjacent shoulder the stated distance ahead. Certainly under those circumstances it cannot be said that the two vehicles were traveling in paths that would inevitably intersect. The Stakelback rule which MAI has adopted — not the Witt case — governs the instant question. As for the Mullen case, defendant apparently misconceives its effect. The Supreme Court there held that no duty on the part of a street car operator arose at a time “when it was not reasonably apparent that there was danger of a collision”.

Inasmuch as plaintiff was entitled to a jury determination of the question whether Davis knew or should have known there was a reasonable likelihood of collision in time to have averted it, by taking action as hypothesized, we rule that the error resulting from the instruction’s failure to require such finding was prejudicial.

Plaintiff additionally contends that Instruction No. 4 is erroneous because it authorized the jury to find for defendant if they believed that plaintiff’s insured “disregarded electric warning signals or arm signals given by defendant”. Plaintiff argues that the quoted element “presupposes a duty upon plaintiff’s insured to yield the right of way” without any guide to the jury as to right of way or duty to yield.

Preliminary to discussion of the instruction segment before us, we deem it advisable to consider the meaning of the words “disregarded electric warning signals or arm signals given by defendant”. It is obvious that the only word requiring specific definition is the word “disregarded”. Webster’s New International Dictionary, 2d Edition, defines “disregard” as “not to regard; to pay no heed to; to fail to notice or observe; hence to slight as unworthy of regard or notice”. It appears to us that “disregarded” was used in the sense of having paid no heed to, rather than to connote failure to notice or observe as an act of visual perception, since the latter consideration was submitted by the lookout portion of the instruction. Therefore, the clause in question is subject to the reasonable interpretation that plaintiff’s insured (negligently) paid no heed to electric warning signals or arm signals given by defendant.

Under the circumstances of the case it is obvious that Davis could not have paid effective heed to the signals by the mere act of looking at them, but that some positive preventive action on his part was necessary to satisfy the requirement of the instruction. Thus, we conclude that the hypothesis “ * * * plaintiff’s insured disregarded * * * signals * * * is only a general submission to the effect that plaintiff failed to utilize available means at hand that could or might have averted the collision. We believe the jury would likewise have the same understanding of the instruction.

It is elementary that “ [b] oth judge and jury are * * * component parts of that intangible thing or entity called the court, and neither * * * may invade or trespass upon the special field and province of the other”. State ex rel. Witte Hardware Co. v. McElhinney, 231 Mo.App. 860, 100 S.W.2d 36. The jury are the triers of the facts but the law of the case is the sole responsibility of the court. “No encroachment should be suffered by either tribunal upon the other, for in this way is justice best administered”. McPeak v. Missouri Pacific R. Co., 128 Mo. 617, 30 S.W. 170. This traditional division of trial responsibility has been breached in this case. By including the “disregarded * * signals * * * ” element in Instruction No. 4, the trial court abdicated to the jury its essential function of declaring the law of the case by defining the facts that were for the jury’s determination under the pleadings and the evidence.

The submission is fundamentally erroneous because it gives the jury no guidance on the issues involved but invites them to speculate as to what acts or conduct on the part of Davis would constitute contributory negligence. Owens v. McCleary, 313 Mo. 213, 281 S.W. 682. See 1 Raymond’s Missouri Instructions, Permanent Edition, Sec. 105, p. 102; Sec. 130, p. 118. “An instruction, on a plaintiff’s contributory negligence, ‘is too general’ and ‘amounts to what is commonly termed a roving commission’ when ‘it fails to advise the jury, or point out in any way, what acts or omissions on the part of plaintiff, if any, found by them from the evidence, would constitute contributory negligence.’ Clason v. Lenz, 332 Mo. 1113, 61 S.W.2d 727, 730; Schide v. Gottschick, 329 Mo. 64, 43 S.W.2d 777; Bobos v. Krey Packing Co., 317 Mo. 108, 296 S.W. 157; Owens v. McCleary, 313 Mo. 213, 281 S.W. 682; Hanke v. St. Louis, Mo.Sup., 272 S.W. 933, and cases cited; Lunsford v. Macon Produce Co., Mo.App., 260 S.W. 781. These authorities say that this is prejudicial to plaintiff because it permits the jury to find contributory negligence against plaintiff ‘on any theory of negligence which they could construct or evolve out of their own minds’ ”. Pearrow v. Thompson, 343 Mo. 490, 121 S.W.2d 811; also see: Benham v. McCoy, Mo.Sup., 213 S.W.2d 914; Watts v. Moussette, 337 Mo. 533, 85 S.W.2d 487.

Thus we are necessarily bound to view the “disregarded — signals” charge as a “roving commission” granting the jury unlimited license to find Davis guilty of contributory negligence on any theory of their own invention. This improvident delegation of authority permitted them to make such a finding if they believed Davis (a) failed to give defendant’s truck driver a warning signal (a theory that was not developed or relied upon by defendant) ; (b) failed to yield the right of way, or (c) failed to keep a vigilant lookout (a submission we have held to be unsupported by the evidence). Any.one of those findings would have been erroneous and prejudicial to plaintiff.

The “disregarded — signals” submission is prejudicially erroneous additionally because (1) it assumes as a fact instead of requiring the jury to find that electric and hand signals were given by defendant’s truck driver and (2) it does not require a finding that there was apparent danger of a collision as a predicate to the performance of some evasive action on the part of Davis, other than to stop, slow or swerve, which the jury might have considered to be his legal duty under some theory they may have evolved under the instruction.

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

All concur.

      . See 29 A.L.R.2d 107 Anno.: Parked Automobile — Pulling Out, which contains the following statement (1. c. p. 112): “In cases dealing with injury or damage resulting from the movement of a motor vehicle which had been parked at the curb of a street or on the shoulder of a highway the courts have concurred in recognizing that the operator of such a parked car is under a duty of yielding the right of way in the travelled portion of the street or highway to pedestrians or other motor vehicles which are moving thereon at the time, * *