author: BARRETT, Commissioner. LEEDY, Judge

text:
    Arline Marie WILSON, Appellant, v. Amos Henry TONSING, Respondent.
    No. 48931.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Feb. 10, 1964.

      James R. Anderson, Clayton, for appellant.
    Evans & Dixon, John C. Shepherd and Paul V. Gilbert, St. Louis, for respondent.
   BARRETT, Commissioner.

On November 22, 1958, Arline Marie Wilson, driving a 1958 Nash Metropolitan automobile east on Gravois, was involved in a collision with a 1949 Austin automobile driven north on River Des Peres Drive by Amos H. Tonsing. To recover $15,000 (damages for her personal injuries and $745 ■(the agreed damage to her automobile) for ■personal property loss Mrs. Wilson instituted this suit against Mr. Tonsing. In •addition to his answer to her suit Mr. Tonsing filed a counterclaim against Mrs. Wilson in which he sought to recover $164.-50 damages for the injury to his Austin automobile. Upon the trial of the cause a jury found against Mrs. Wilson on her cause of action and in favor of Tonsing on his counterclaim and awarded him $164.-50. Tonsing filed no after-trial motions, the trial court overruled Mrs. Wilson’s motion for a new trial and she has appealed to this court. Mrs. Wilson makes and has briefed two assignments of error; first, that the court erred in giving instruction 4 which hypothesized his recovery on the counterclaim, and, second, that the court erred in admitting the defendant’s testimony that with his brakes and wheels locked it would have been almost impossible for him to have swerved his automobile.

In this posture, since it is necessary that Mrs. Wilson be granted a new trial as to the respondent’s $164.50 counterclaim before she is again entitled to try and submit her $15,745 claim, the question of this court’s appellate jurisdiction was suggested to the parties on oral argument. Specifically, the problem is whether “the amount in dispute” (Const.Mo., Art. 5, Sec. 3, V.A.M.S.) upon this appeal is a sum in excess of $15,000. V.A.M.S.Supp., § 477-040. It is not as if both parties had appealed, thus directly bringing “in dispute” the entire cause, both the plaintiff’s claim and the defendant’s counterclaim. Schmidt v. Morival Farms, (Mo.) 240 S.W.2d 952. Also the case is not as if the trial court had sustained the plaintiff’s motion for a new trial, thereby reinstating her claim. Harris v. Rowden, (Mo.) 305 S.W.2d 25. Neither is it an instance in which on the defendant’s appeal his counterclaim may be disregarded. Nickels v. Borgmeyer, (Mo.) 256 S.W.2d 560. There is also the difference in this case and Anthony v. Morrow, (Mo.App.) 306 S.W.2d 581, 583, that here the plaintiff in her notice has specifically appealed as the person aggrieved by the “verdict and judgment in favor of defendant and against plaintiff on plaintiff’s cause of action and in favor of defendant and against plaintiff on defendant’s counterclaim.” Furthermore in his brief here the respondent Tonsing makes and urges the assignment that Mrs. Wilson failed to make a case under the humanitarian doctrine — the only ground upon which her cause was submitted— “consequently, any error in instruction or evidence would be immaterial.” And of course, with the issues on appeal in this posture, the question of whether plaintiff made a submissible case is basic, “inherent in every case,” and is always an opemquestion when raised by the defendant on the plaintiff’s appeal. Lilly v. Boswell, 362 Mo. 444, 454, 242 S.W.2d 73, 77; Hart v. Midkiff, (Mo.) 321 S.W.2d 500, 505; Carter v. Matthey Laundry & Dry Cleaning Co., (Mo.) 350 S.W.2d 786, 792. Thus there has been challenged and brought into the appeal, in addition to the defendant-respondent’s counterclaim of $164.50, the plaintiff’s claim for $15,745 and the claims thus aggregated and necessary to he considered in disposition of this appeal involve ,an amount within this court’s appellate jurisdiction. Annotation 58 A.L.R.2d 84, 91; Albers Milling Co. v. Carney, (Mo.App.) 335 S.W.2d 207. In essence, in so far as the jurisdictional problem is concerned, this case is governed in principle by the recent en banc decision of Endermuehle v. Smith, (Mo.) 372 S.W.2d 464 and as a matter of fact accounts for this the second reassignment of this cause. Appositely and in summary the court there said:

“The ‘monetary’ effect of the judgment appealed from was to deny plaintiff, appellant herein, the relief she had sought, that is, a judgment in money amount $22,550 in her favor and against defendant and to grant defendant, respondent herein, the relief she had sought, that is, a judgment in money amount $100 in her favor and against plaintiff. Although in this case and in other cases of like nature, only one or the other, a plaintiff or a defendant, can ever recover (Hoefel v. Hammel, Mo.App., 228 S.W.2d 402; Jameson v. Fox, 364 Mo. 237, 260 S.W.2d 507; Willibald Schaefer Co. v. Blanton Co., Mo.App., 264 S.W.2d 920; Hamilton Fire Ins. Co. v. Cervantes, Mo.App., 278 S.W.2d 20; Smith v. Rodick, Mo.App., 286 S.W.2d 73; Stonefield v. Flynn, Mo.App., 347 S.W.2d 472), nevertheless, in this case it is seen that, actually, the money amounts of the appellate-jurisdictional decisive ‘deny and grant’ monetary impact upon appellant of the app'ealed-from judgment in defendant-respondent’s favor and against plaintiff-appellant are in aggregate amount $22,650.”

Mrs. Wilson’s right to recover was submitted upon the hypothesis of the humanitarian doctrine: that as she drove eastwardly on Gravois and its intersection with River Des Peres she came into a position of peril of which Tonsing, as he proceeded north on River Des Peres, was or should have become aware and that thereafter, in the highest degree of care and with safety to himself, could or should “have turned or swerved his automobile” and thereby have avoided colliding with plaintiff. Also in this instruction the jury was informed that plaintiff could recover upon the hypothesis of this instruction even though “Arline Marie Wilson was guilty of negligence which directly contributed to cause her injuries.” Tonsing’s evidence tended to show that as he approached Gra-vois and was about “six cars back” the stop sign was red and so he slowed down to a speed of 5 or 10 miles an hour. As he approached the intersection the light changed to green and he proceeded on at an increased speed of about 20 miles an hour. According to him the automobiles in the traffic lane to his left also started forward and after he had traveled about 4 feet beyond the curbline the plaintiff’s automobile suddenly and without warning came through a red light into the intersection ahead of his car and despite the application of his brakes his Austin “slid 14 feet” to a stop but into the side of Mrs. Wilson’s automobile. Upon the evidence favorable to him Tonsing submitted his right to recover on his counterclaim against Mrs. Wilson upon the primary negligence hypothesis that as he proceeded northward into the intersection the stop light was green and “that plaintiff proceeded into' said intersection at a time when the light controlling eastbound traffic for Gravois Avenue was red.” Furthermore the jury was instructed, if it found these facts, that “you are entitled to return a verdict in favor of defendant Tonsing on his counterclaim and award him damages, not to exceed the sum of $164.50.”

In submitting the defendant’s counterclaim instruction 4 does not mention or refer in any manner to instruction 1 and the humanitarian hypothesis upon which recovery is permitted plaintiff. Not only is instruction 1 not mentioned, instruction 4 does not negative its applicability, “and (defendant) was not guilty of any negligence as submitted in other instructions.” Dixon v. Edelen, (Mo.) 300 S.W.2d 469, 474. It may be that the mere failure to mention the plaintiff’s main instruction and its hypothesis of the humanitarian doctrine is not the sole test of the correctness and validity of a defendant’s counterclaim instruction, but that was not the problem in Banks v. Koogler, (Mo.) 291 S.W.2d 883. In that case the humanitarian instruction covered the subject, there the humanitarian instruction told the jury that recovery could be had upon its hypothesis “even if it found that defendant was negligent in any of the respects submitted in plaintiff’s instructions on primary negligence.” Therefore, reading the instructions together, the jury in that case was informed that it was not authorized to consider contributory negligence as a defense to the humanitarian submission and there was then no conflict or misdirection in the instructions. Slaughter v. Myers, (Mo.) 335 S.W.2d 50, 55. But that is not the situation with respect to these instructions, the parties and theories were transposed or reversed, otherwise this case is governed by Mott v. Chicago, R. I. & P. Ry. Co., (Mo.App.) 79 S.W.2d 1057, 1062, and Wabash Railroad Co. v. Dannen Mills, Inc., 365 Mo. 827, 830, 288 S.W.2d 926, 927:

“By authorizing plaintiff’s recovery on defendants’ primary negligence and ignoring the humanitarian submission in instructions A and B as to which antecedent primary negligence was not a defense, instruction 1 was in direct conflict with instructions A and B and was prejudicial error for the reasons stated in the opinion of the Court of Appeals.”

There was a verdict in favor of the counterclaim in this case (compare Hangge v. Umbright, (Mo.) 119 S.W.2d 382, 383), and therefore the error was manifestly prejudicial and requires that the cause be reversed and remanded unless, as the defendant claims, the plaintiff failed to make a submissible humanitarian case.

As to the plaintiff’s cause of action, the defendant urges that “there was no evidence as to defendant’s ability to swerve” and therefore it is said that there was no basis for her humanitarian submission. Admittedly no one affirmatively testified that the defendant could have swerved and of course if his ability to swerve and thus avoid the collision is not a fair and reasonable inference in all the circumstances the plaintiff has failed to make a submis-sible humanitarian case. Findley v. Asher, (Mo.) 334 S.W.2d 70; Shaw v. Griffith, (Mo.App.) 291 S.W.2d 230, 235; Lowry v. Mohn, (Mo.) 195 S.W.2d 652. These, in brief, are some of the essential circumstances favorable to plaintiff: Mr. Tonsing once said that when he first saw Mrs. Wilson’s automobile it was approximately at the curbline of Des Peres traveling at a speed of about 30 miles an hour (she said 25) and he was then 15 to 18 feet from the intersection, and entering the intersection increased the speed of his Austin to “approximately twenty miles an hour.” Admittedly, Mr. Tonsing made no attempt to turn the steering wheel of his automobile prior to the impact, both vehicles traveled in a straight line until they collided. He says, instead of attempting to swerve, that he applied his brakes and “slid to a stop” in fourteen feet and “At the time of the collision the best I can recall my car just had stopped. She went past in front of me.” The “grill, the front and part of the hood” of the defendant’s automobile collided with the right side of the plaintiff’s Nash “towards the rear of the door” (a two-door vehicle). Mrs. Wilson says that she proceeded through the intersection as the traffic signal turned to amber and was “almost across” when the vehicles collided.

It is not necessary to set forth all the distances and speeds and note possible mathematical calculations, it is sufficient to say that i'f the defendant could stop his automobile in these circumstances reasonable minds might well differ as to whether by the same token he could have swerved his Austin and thereby have avoided colliding with Mrs. Wilson’s Nash. The case involved a pedestrian but as the court said in Payne v. Reed, 332 Mo. 343, 351-352, 59 S.W.2d 43, 46, “The defendant could have stopped his car in 5 to 10 feet (at a speed of 10 miles an hour) and checked its speed or changed its course in less space than that.” It is not a question, as the defendant argues, of whether this court can “take judicial notice that from the time plaintiff entered a position of peril, the defendant, going at a speed of 20 miles an hour, had the ability to swerve his automobile * * * so as to have avoided the collision,” the problem is one of permissible inferences from circumstantial if not direct evidence. Payne v. Reed, supra. The circumstances and permissible inferences in this case are not comparable to the speed of 80 to 90 miles an hour in Shaw v. Griffith, supra, or finally to the distance of 16½ feet left to the defendant in Findley v. Asher, supra. As stated, Tonsing was 15 to 18 feet from the intersection when he first saw Mrs. Wilson, it was 32½ feet from the south curb-line of Gravois to the point of collision and these two figures alone at a maximum attained speed of 20 miles an hour allow a distance of 45 to 50 feet in which to swerve (normally, at 20 miles an hour on level pavement an automobile can be stopped in 40 to 43 feet, 9C Blashfield, Automobiles, Sec. 6237, p. 413).

For the reasons indicated, the judgment is reversed and the cause remanded.

STOCKARD, C., concurs.

PRITCHARD, C., not sitting.

PER CURIAM:

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

LEEDY, J., concurs in separate concurring opinion.

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

LEEDY, Judge

(concurring).

My views on the question of this court’s jurisdiction are expressed in the dissenting opinion in Endermuehle v. Smith, Mo., 372 S.W.2d 464, decided by the court en banc on November 11, 1963, the principle of which case is applied here, and correctly so if banc did, in fact, in the Endermuehle case overrule the very considerable authority to the contrary. My brethren are of that opinion to which I bow. I therefore concur in the principal opinion.


source: Caselaw Access Project

author: WELBORN, Commissioner.

license: Public Domain

text:
    ST. LOUIS HOUSING AUTHORITY, (Plaintiff) Respondent, v. Aaron BARNES et al. (Parcel No. 223—Albert Fein and Edna Oxenhandier, Administrators), (Defendants) Appellants.
    No. 49939.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Rehearing Denied Feb. 10, 1964.

      Newmark & Baris, Irl B. Baris, St. Louis, for appellants.
    Irvin Dagen, Edward C. Cody, St. Louis, for respondent.
   WELBORN, Commissioner.

The St. Louis Housing Authority, a municipal corporation organized and operated under Sections 99.010-99.230, RSMo 1959, V.A.M.S., filed suit in the St. Louis Circuit Court on October 31, 1960 to condemn (Section 99.120, RSMo 1959, V.A.M.S.) property in the City of St. Louis upon which it proposed to construct a low-rent housing project. Among the tracts sought to be condemned was Parcel 223, a lot known as 3402 Bell Avenue, with improvements thereon consisting of a brick dwelling. Condemnation was ordered on January 13, 1961. On July 6, 1961, the commissioners returned their award for Parcel 223 in the amount of $4,500. On July 14, 1961, the condemnor deposited the amount of the award into the registry of the court and filed exceptions to the award for Parcel 223.

The exceptions were heard by a jury on May 2, 1962. At the trial the appellants here, as administrators c. t. a. of the estate of Isadore Fein, sought to uphold the commissioners’ award. Fein was the record owner of the property on July 14, 1961. He died thereafter. The appellants’ expert witness, Mr. Sam Michelson, testified that the value of the property as of July 14, 1961 was $4,165. The witness had not personally examined the property since October or November, 1960, near the time of the filing of the petition in condemnation. An offer of proof to show by the witness that the value of the property at that time was $4,800 was rejected by the court for the reason that value was required to be shown as of July 14, 1961, the date of the payment of the award into court. The witness’ testimony as to the value of the property on the latter date was based upon the testimony of Albert Fein that, except for the removal of the fire escape from the rear of the house, the condition of the property was essentially unchanged from November, 1960 to July, 1961. An offer of proof on behalf ■of the appellants was made that the witness Michelson would testify that it is his opinion “based upon his experience in condemnation matters that once an area has been marked for condemnation, property deteriorates because of the nature of the neighborhood and because of the fact vandalism takes place in those neighborhoods and the value of the property is greater at the time of the initial announcement and the commencement of proceeding for condemnation than that value at the time of the payment of the award in court.” Objection to the offer of proof was sustained. An offer of proof was also made and rejected to show by the witness Fein that he had been unable to rent the house at 3402 Bell because of the commencement by respondent of plans for the housing project and the condemnation action.

Respondent’s expert witness testified that the value of the property as of July 14, 1961 was $1,600. The jury found the fair market value of the property as of that date to be $2,200. After their motion for new trial had been overruled, appellants appealed to this court. In their jurisdictional statement, appellants assert that “in their Motion for New Trial, (they) have charged that the procedure in the trial court with respect to the method and date of determining just compensation to be awarded for the condemned property violated Section 26 of Article I of the Constitution of the State of Missouri and the Fourteenth Amendment to the Constitution of the United States.” The only possible constitutional question raised by the points relied upon in appellants’ brief relates to alleged error on the part of the trial court in “limiting the evidence and instructing as to valuation of the property as of July 14, 1961, the date on which the plaintiff paid the amount of the commissioners’ award into court.” The appellants assert that they “should have been permitted to introduce evidence as to the depreciative effect of the condemnation proceedings on the value of the property, and the court should have instructed the jury to consider this factor in determining just compensation under the Constitution of Missouri.” In neither their statement of this point nor in the authorities cited in support thereof nor in their argument, have appellants relied upon the 14th Amendment to the Constitution of the United States, as mentioned in their jurisdictional statement. Therefore, objection upon the basis of that constitutional provision is not preserved (Crampton v. Osborn, 356 Mo. 125, 201 S.W.2d 336, 339, 172 A.L.R. 344). The constitutional question arises solely under the Constitution of Missouri. Inasmuch as the precise point raised here has not been decided by this court, we do have jurisdiction of the appeal. We conclude, however, that the objection raised is without merit.

In City of St. Louis v. International Harvester Company, Mo.Sup., 350 S.W.2d 782, decided November 13, 1961, the court en banc pointed out that, under Section 26 of Article I of the Constitution of Missouri 1945, just compensation for the taking of private property is the fair market value of the property taken at the time of taking. The court held that the time of taking is the date upon which the amount of the commissioners’ award is paid into court because that is the time at which the condemnor obtains the rights of ownership of the property. See also City of St. Louis v. Vasquez, Mo.Sup., 341 S.W.2d 839. The International Harvester and Vasquez cases dispose of appellants’ constitutional objection that their damages should have been assessed as of the date of the condemnation proceeding.

As for the offer of proof to show deterioration of the value of the property as the result of the announcement of the proposed housing project and the institution of the condemnation action, the appellants’ theory is set out in their proffered instruction which the court rej ected and which read as follows :

“The Court instructs the jury that you are to assess damages in favor of the defendants as of the time of the taking or appropriation by the plaintiff St. Louis Housing Authority, and you may also take into consideration any damages caused to defendant’s property as a result of the institution of the condemnation proceedings, either by the actual filing of the condemnation petition or by the announcement of plans for condemnation and the effect of such announcement on the value of such property if you find that such announcement, if any, caused the property to change in value.”

The Supreme Court En Banc, in the case of State ex rel. City of St. Louis v. Beck, 333 Mo. 1118, 63 S.W.2d 814, 92 A.L.R. 373, held that damages alleged to have been suffered by a property owner as the result of pendency of condemnation proceedings could not be recovered as an element of damage for the taking in condemnation. The court stated (63 S.W.2d 817):

“We do not undertake to decide if the realty company is entitled to any damages on account of the pendency or delay of the condemnation proceeding itself, and if there is any damage on account of such proceedings, it is of a personal character, as distinguished from any damage to the property itself, and is not an element to be considered by the commissioners in assessing benefits and damages in this proceeding.”

The principle of that case is determinative here. In this case, damages for the taking are in accordance with City of St. Louis v. International Harvester Company, supra, to be assessed as of the date of the taking, July 14, 1961, the date of payment of the commissioners’ award. If the appellants suffered damages for which the respondent is liable by reason of the condemnation action, such damages are not part of the damages for the taking and, under the Beck decision, are not an item of just compensation within the meaning of Section 26 of Article I of the Constitution of Missouri, 1945. See also Chicago Housing Authority v. Lamar, et al., 21 Ill.2d 362, 172 N.E.2d 790; A. Gettelman Brewing Co. v. City of Milwaukee, 245 Wis. 9, 13 N.W.2d 541.

Appellants allege error in the argument of respondent’s counsel to the jury in which he stated: “The Authority feels that it’s using taxpayers’ money. It feels that when it does that, it must pay no more than what the property is worth at that time.” Appellants’ counsel made a general objection, accompanied by a request to make a statement. Without waiting for elaboration by appellants’ counsel on his objection, the court stated: “Objection sustained to any reference to taxpayers’ money. It will be stricken and the jury is instructed not to take or consider that in any decision they return in this court.” Appellants’ counsel then moved for a mistrial which was denied. Such denial is assigned as error.

In view of the prompt action of the court in sustaining the objection to the argument, we cannot say that the court’s refusal to grant a mistrial was erroneous. The determination of such matters is largely for the trial court. We cannot say here that the court’s ruling was an abuse of the discretion which it possesses. City of St. Louis v. Vasquez, Mo.Sup., 341 S.W.2d 839, 852; Cordray v. City of Brookfield, Mo.Sup., 88 S.W.2d 161, 165.

In the cases of Barnes v. City of St. Joseph, 139 Mo.App. 545, 123 S.W. 541, and Huggins v. City of Hannibal, Mo.App., 280 S.W. 74, cited by the appellants, in which arguments with reference to taxpayers’ money were held prejudicially erroneous, the trial court had overruled objections to such arguments. Here the objection was promptly sustained and the jury instructed to disregard the statement. In Jones v. City of Kansas City, Mo., 76 S.W.2d 340, also cited by the appellants, the trial court granted a new trial on the basis of error in argument along such lines. The appellate court, in declining to reverse the order for a new trial, merely acceded to the trial court’s discretion on the question.

Appellants’ final allegations of error relate to the return to respondent of the difference between the commissioners’ award and the jury’s verdict and the overruling of their motion to'dismiss respondent’s objections to the commissioners’ award. By memorandum filed on the day of the trial, the death of Isadore Fein, a party defendant in the condemnation proceeding, was suggested and the appellants as administrators of his estate entered their appearance. On July 2, 1962, while their motion for new trial was still pending, appellants filed a motion to dismiss respondent’s exceptions and for an order that the sum of $4,500 on deposit with the clerk of the court be delivered to them as co-administrators. The motion alleged that Isadore Fein had died on July 28, 1961; that appellants had been appointed administrators c. t. a. on August 24, 1961; that the first notice of issuance of letters was published on August 29, 1961, and that respondent had failed to file notice of its claim within nine months thereafter. At a hearing on the motion, it was shown that no claim or notice had been filed by the respondent in the probate proceedings. The trial court, on July 30, 1962, denied the appellants’ motion for dismissal of the exceptions, overruled the motion for new trial and ordered $2,300 of the amount deposited in payment of the commissioners’ award paid over to respondent without interest. On August 16, 1962, after appellants’ Notice of Appeal had been filed on August 9, respondent suggested to the court that no supersedeas bond had been filed by-appellants in connection with the appeal. The court ordered that, since no order of distribution to the appellants had been entered as to the $2,300 item, the clerk pay the sum of $2,300 to respondent.

Appellants here contend that, inasmuch as they are administrators, they were not required, as a condition for suspension of the court’s judgment, to file a bond, citing Section 512.080, RSMo 1959, .V.A.M.S., and Civil Rule 82.09, V.A.M.R. They also contend that the trial court should have sustained their motion to dismiss respondent’s exceptions for failure to comply with Sections 473.360 and 473.363, RSMo 1959, V.A.M.S., the provisions of the probate code relating to the filing of claims and notice of actions pending against a person at the time of death. Inasmuch as the question of the alleged premature payment to respondent would be relevant only if the latter proposition of appellants has merit, we turn to that. It is conceded that respondent took no action under the probate code with respect to the condemnation action pending against Isadore Fein at the time of his death. We are of the opinion, however, that such failure did not call for the dismissal of respondent’s exceptions to the commissioners’ report. Section 473.360 provides, in part:

“2. Unless written notice of actions instituted or revived under sections 473.363 or 473.367 is filed in the probate court within nine months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the executor or administrator out of any assets being administered upon in the probate court or from any distributee or other person receiving such assets.”

The payment to respondent was not a recovery on a “judgment” within the meaning of Section 473.360, supra. In State ex rel. State Highway Commission v. Paul, Mo.Sup., 368 S.W.2d 419, the court considered the liability of the condemnee for interest under Section 523.045, RSMo 1959, V.A.M.S., on the difference between the commissioners’ award and the smaller jury verdict where the condemnee had not withdrawn an amount in excess of the jury’s verdict. In considering Section 523.-045, supra, which appellants here point to as requiring a “judgment” to be entered in favor of respondent before it was entitled to the return of the excess above the jury’s verdict, the court stated (368 S.W.2d 424) :

“Where the condemnee has not withdrawn the award, a judgment with its attribute of execution is not necessary to return the fund, or a part of it, to the condemnor. Where the money is in the registry of the court, all that is needed is a court order for the clerk to release and deliver the proper amount to the condemnor in accordance with the verdict of the jury. The words, ‘judgment’, ‘payment’, and ‘repay’, as used in the statute, indicate a debt and the relation of debtor and creditor. This fits in with the situation where the landowner has actually received the amount of the commissioners’ award, but it is at variance with the legal situation existing where the award remains in the registry of the court subject to its being distributed in accordance with the verdict of the jury.”

Although they had the right to withdraw the amount of the commissioners’ award, appellants had not done so and the fund remained on deposit in the registry of the court. Disbursement therefrom to the con-demnor would not, under the circumstances of this case, require a judgment.

Furthermore, the condemnation damages could not have been an asset “being administered upon in the probate court,” within the meaning of Section 473.-360, until the administrators exercised their right to draw down the amount deposited. Until they did so, it remained a fund in litigation, under control of the circuit court

Therefore, Section 473.360, relied upon by appellants, is inapplicable and the trial court properly overruled the motion to dismiss the exceptions. Inasmuch as the issue of premature return of the excess would be significant only if the nonclaim statute were applicable, we need not pass upon the appellants’ contentions in this regard.

The judgment of the circuit court is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: PRITCHARD, Commissioner.

text:
    Wilma JUSTICE, (Plaintiff) Appellant, v. EAST ST. LOUIS CITY LINES, INC., a corporation, (Defendant) Respondent.
    No. 49927.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.
    Rehearing Denied Feb. 10, 1964.
    Edward P. McSweeney, Nations & Mc-Sweeney, Clayton, for appellant.

      William M. Corrigan, St. Louis, for respondent.
   PRITCHARD, Commissioner.

In this action for personal injuries, wherein the prayer for damages is for $150,000, plaintiff appeals from a judgment against her based upon the sustaining of defendant’s motion for directed verdict by the trial court at the close of plaintiff’s evidence, which the trial court stated presented no jury question.

In determining the propriety of the trial court’s action, we are guided by the rule that plaintiff’s evidence must be viewed in its light most favorable to her, including all favorable inferences reasonably deducible therefrom. Keeney v. Callow, Mo., 349 S.W.2d 75, 76; Bayer v. American Mutual Casualty Company, Mo., 359 S.W.2d 748, 752. We therefore in such manner state the evidence adduced by plaintiff, but we first set forth the essential allegations of negligence contained in her petition.

Plaintiff pleads that on December 15, 1958, she was a fare-paying passenger on defendant’s bus. That after she boarded the bus defendant’s agents and servants in charge thereof continued to take on passengers until it became overcrowded with passengers in its seats, aisles and passageways, and particularly in the passageway to the side exit from said bus, to such an extent as to be dangerous and unsafe for passengers riding thereon and alighting therefrom. Plaintiff further alleged that when the bus stopped at its St. Louis terminus where it discharged passengers, she was compelled by reason of the overcrowded condition of the bus to wedge and squeeze between other passengers who were standing in close proximity to each other in the passageway to the side exit of the bus while attempting to alight from the bus, and she was caused to stumble and to fall from the bus to the pavement whereby she was injured. The specific assignments of the negligence of defendant, contained in paragraph 3 of plaintiff's petition which are material to her appeal on the issue of the submissibility of her case, are set forth as follows:

“ * * * (2) In permitting said bus to become so overcrowded as to be dangerous and unsafe to passengers, particularly Plaintiff, in riding therein and in alighting therefrom.
“(3) In failing and neglecting to discover the overcrowded condition of said bus and to avoid injury to this Plaintiff by clearing the passageway to the side exit so that Plaintiff could have alighted with reasonable safety,
“(4) In failing to assist the Plaintiff in going through the passageway to the side exit of said bus and in alighting therefrom so that she could have done so with reasonable safety.
⅜ ⅜ ⅜ jji ⅜ ⅜
“(6) Defendant, through its agents, servants and employees knew, or in the exercise of the highest degree of care could have known that the movement and surge of the passengers on its said bus toward the exit doors thereof at the terminus would create a situation making it hazardous for passengers prepared to descend the steps of said exit doors to do so and alight, and particularly Plaintiff, and could have physically assisted Plaintiff in alighting, or directed the passengers to move with caution toward said exit doors, and thereby have avoided said hazardous situation and Plaintiff’s resultant fall, injuries and damage, but carelessly and negligently failed so to do.”

In passing over the pleadings, we mention that defendant’s responsive pleading (as pertinent to the above allegations) is a general denial coupled with a plea of plaintiff’s contributory negligence.

Plaintiff testified on direct examination that on December 15, 1958, she lived at 5301 Audubon, East St. Louis, Illinois. She worked in the credit office of Famous and Barr in St. Louis, Missouri. For the past seven years, in order to get to work, she rode the bus of the East St. Louis City Lines, Rosemount Division, and on said date she caught the bus at Fifty-Third and Caseyville Avenue. She paid her fare of 25⅜ and got a seat on the bus — either the last one or the second seat from the rear door, in front of it, sitting in the seat next to the window. When the bus got into downtown East St. Louis, there were no seats remaining unfilled on the bus, and there were people standing on the bus. On the trip there were bus stops, where people were waiting, which were passed by the bus. For its route, the bus goes through the downtown part of East St. Louis, over the Eads Bridge, and when it comes off the bridge, it turns onto St. Charles from which it turns into Lane B of the Rosemount Bus Line at the terminal. On the date of the occurrence in question, the bus pulled all the way to the end of the lane and stopped, and plaintiff stood up. At that time people were standing in the aisles, down in the front well, and as she stood up and turned around she noticed the back end of the bus and the back stairwell were full, and there was no space between the people standing up. There were then no seats which were not taken.

During the prior seven years that plaintiff had been riding the bus its condition was that it was always crowded similarly to the way it was on December 15, and she had felt the crowding of the people, the pressure of the people, in getting off the bus during that time.

After plaintiff got up from her seat, and the passenger who had been sitting beside her had gotten in line and was getting off the bus, plaintiff then got into line and began to move toward the rear door, which was the closer, at which time she could feel the crowding or pressure of the people behind her. As she got to the rear door, she let some people or person get off coming from the rear side — from the back of the bus. She then started to get off, and as she was going to reach for the railing and “put [her] my footstep,” she was knocked out the back door, coming to rest on the platform by the rear door, with her feet hanging over the curbing.

On prior occasions plaintiff had been knocked off balance while she was getting off the bus, but she was fortunate enough to grab hold of something and get herself upright, and she never did fall before.

In getting off the bus, no one on behalf of the bus company offered her any help, and no one from the bus company gave her any instructions as to how to get off or move, nor during the seven years previous that plaintiff had been riding the bus had there been given by the employees any physical help or instructions to passengers of the bus.

On cross-examination, plaintiff testified additionally that as she and Mrs. Russo (seated beside plaintiff) stood up, that both had to wait before plaintiff moved out into the aisle, and Mrs. Russo got out first, waiting first for one or two people (it could have been more) to go by; there were still people standing there. At the time that plaintiff moved into the location (other passengers giving way to her) that Mrs. Russo was standing in before she moved on in the aisle, the passengers were standing together in two lines (a double line in the middle of the aisle), and plaintiff then observed pushing and jostling in front of her. By “pushing and jostling,” plaintiff did not mean anything unruly — but meant people who are just in a hurry to get off the bus and get off to work — just a normal flow of people who get off the bus. As plaintiff got out into the aisle she felt pushing and jostling from behind.

Concerning from the time plaintiff got out of her seat to the time that she fell, she testified on cross-examination as follows:

“Q And at that time that you were— from the time you got out of your seat till the time you sustained this fall, did you ever look behind you, ma’am ?
“A No, I did not look behind me, no.
“Q Did you observe how many people got off in front of you ?
“A No. I was more interested in watching how — where I was going.
“Q And I assume you have no idea of how many people got off the front door ? A No, I don’t.
“Q I assume you don’t have any idea as to how many people were behind you, if any? A No, I don’t.
“Q Do I understand that when you fell you were still up on the platform or on the aisle level when you fell out the door?
“A I was just starting to take a step down.
“Q You were stepping from the aisle level down to the first step? A Yes, sir.
“Q Now, tell us what happened, ma’am, at that time ?
“A Well, before I had gotten to the door — I had just got there — I had let a person off from the rear coming this way. I let them off first, and then I started to get off, and just when I first started taking my step I felt myself being knocked out of balance out the back door.
“Q What did you feel that caused you to be knocked off balance?
“A You can feel the pressure from the people from behind with their arms or their purses or whatever how they got their arms folded.
“Q Did you feel the pressure of more than one arm?
“A I don’t know whether it was one or more arms, but you could feel them —feel them from behind.
“Q Well, all that you could actually feel would be the person immediately behind you, could you not?
“A As I said before, there was always two people standing in line both ways, coming from the rear and coming from the middle part the bus.
“Q But at the time that you got to the place where you were going to alight there was only one person, only room for one person?
“A All around you, Mr. Corrigan, as they come in they more or less form a circle around the back of the door and one person can only get off the back of the door.
“Q You felt some sort of pressure behind you at that time ?
“A Yes, I did.
“Q You don’t know whether it was a purse or an arm?
“A All I know the pressure of the people from the bodies going forward. I mean when you’re standing — if somebody’s behind you — it’s not no arm or a purse or anything, it’s just the pressure.
“Q You really don’t know what it was?
“A All I know the pressure from the people from behind. If it was one person, two persons or three or four or how many, I can’t say.” (Emphasis added.)

Mrs. Ann Trotter testified for plaintiff that she took the same bus as plaintiff every morning to go to work, and had done so for about four years. Ordinarily, during that period, by the time the bus got to the St. Louis terminal, there were no seats open, and there would be passengers standing and there wouldn’t be any room at all. There would be bodily contact among the passengers on the bus in the process of getting off —they would be so closely together that getting off the bus they would brush against one another. Mrs. Trotter stated further that December IS, 1963, the day of the accident, was just like any other day.

The parties do not seem to be in any controversy that the rule in Missouri, following the great majority of cases in the United States, is that the overcrowding with passengers by a common carrier is regarded “as a controlling, or at least, as a material, element in determining the liability of a street railway company for injuries to passengers caused by or resulting from such overcrowding.” See Jordan v. St. Louis Public Service Co., 232 Mo.App. 267, 103 S.W.2d 552, 557; Annotations, 5 A.L.R. 1257, 1258; 42 A.L.R. 1329; 26 A.L.R.2d 1219. Upon the rule of liability for overcrowding, the parties cite the same cases, but they differ as to the applicability of the evidence in the case at bar to those cases. Briefly, in Jordan, supra, plaintiff’s evidence showed that the streetcar in which she was riding became jammed and packed with people in the aisles and passageways and every seat was taken, and it remained in that condition up to the time plaintiff tried to get off after the car came to a stop at the usual stopping place on the streets and upon her signal. She then had to force and squeeze and wedge her way through the crowd to the exit door, where she caught her right foot on the leg or feet of one of two men standing between the railings of the exit, thereby falling to the street.

In Grubb v. Kansas City Railways Company, 207 Mo.App. 16, 230 S.W. 675, plaintiff, a nine-year-old child, was thrown down and pushed under defendant’s arriving and still moving streetcar by the pressure and shoving of a waiting crowd which had been admitted through defendant’s turnstiles to its platform.

In Oesch v. St. Louis Public Service Company, 228 Mo.App. 1055, 59 S.W.2d 758, plaintiff was pushed forward, fell and was injured by a large Saturday crowd surging forward to board a streetcar, which condition of collecting crowds and their rushing forward to board had existed for a number of years.

In Miller v. Public Service Coordinated Transport, 7 N.J. 185, 81 A.2d 148, 26 A.L.R.2d 1215, plaintiff, her daughter and grandson boarded a Public Service bus and all occupied seats thereon (the grandson sitting on the daughter’s lap). When the bus arrived at their destination the bus was very crowded; all the seats and all the aisle were filled; the aisle “was fully packed, the front and back, every place.” Plaintiff tried her best to get through, and while so doing, everybody was shoving to try to make room for her because there was no room, and as she got to the .step “they just pushed me and I fell down to the street.”

In Lutz v. Chicago Transit Authority, 36 Ill.App.2d 79, 183 N.E.2d 579, plaintiff’s single charge of negligence in her complaint was that defendant permitted its bus to become dangerously overcrowded and that this caused her to be forcefully pushed from the bus to the street. The evidence showed that plaintiff sat near the front door in the middle of a three place seat. The bus became very crowded before it arrived at her transfer destination. It was difficult for plaintiff to prepare to get off the bus because of the crowded aisle, and a man assisted her to her feet. She reached the front door when a woman farther back called for the driver to stop so she could get off. Some woman behind plaintiff placed her hands on plaintiff’s shoulders and pushed her just as the bus was coming to an unexpected stop, at which time the door opened and plaintiff was shoved out, falling over the curb and receiving injuries.

In all of the above-cited cases, the statements of the courts are to the effect that defendant carrier is held to have anticipated the actions of the crowds in surging forward and moving towards exits or entrances of the public conveyances, and in the various circumstances presented it is negligence not to take reasonable precautions for the safety of passengers.

We turn now to an examination of the facts of the instant case in order to determine whether or not plaintiff made a sub-missible case on her theory of defendant’s negligence that the bus in question was overcrowded to the extent that the pressure ■of the exiting passengers at the terminal caused plaintiff to be knocked out of the exit door and be injured.

Defendant says that plaintiff had no evidence that at the time she fell that the aisles and passageways were packed and jammed, •or that in order to reach the rear exit of the bus plaintiff had to force her way and squeeze and zvedge through the crowd, or that the passengers on the bus were “packed in like sardines.” These are the requirements, according to defendant, to prove overcrowdedness under the above mutually relied upon cases.

We think the evidence is ample that when the bus first arrived at the St. Louis terminal, and plaintiff stood up from her seat the bus was crowded. There were no unfilled seats; people were standing in the front and back stairwells and in the •aisles with no space between them. The ■difficulty arises with respect to what happened thereafter, considering the facts testified to by plaintiff and the reasonable inferences in plaintiff’s favor deducible therefrom. While plaintiff testified that she felt the crowding or pressure of the people behind her as she went down the aisle, her testimony is further that as she reached the stairwell at the rear door she waited to let some person from the rear of the bus go ahead of her and then, as she started to step down into the stairwell, she was knocked down. She did not state that which caused her to be knocked down was that there occurred a surge, rush or push against her of the people on the bus in attempting to alight [a fact, if it happened, which is to be anticipated by a carrier, which is held to knowledge of the habits of crowds of persons on public transportation at points where it may be reasonably expected that large numbers of persons will seek to get off. 5 A.L.R. 1257, 26 A.L.R.2d 1219], At the crucial time of her injury, plaintiff failed to show that there was any action on the part of the passengers, acting as a crowd, which caused her to fall. Thus the facts of this case may be distinguished from the facts showing flagrant and inconsiderate crowding and pushing in the above cited and annotated cases in all of which it was held that the plaintiffs made submissible cases of negligence based on overcrowding of the public conveyances in question.

We are aware that the granting of a motion for directed verdict is a drastic action by a trial court, and that it should be done only when all of the evidence and the reasonable inferences to be drawn therefrom are so strongly against plaintiff that there is no room for reasonable minds to differ. Nelson v. O’Leary, Mo., 291 S.W.2d 142. Irrefutably against plaintiff is the fact that she did not show by affirmative, positive evidence that there was a crowd of people on the bus, hurrying to alight at this destination, that surged against her knocking her down. She stated she did not know who was behind her. While it may be inferred that plaintiff received some impulse from behind that propelled her downward in her fall, we may not (to supply this missing fact) infer further that it was the crowd which in concerted movement did the act any more than we may infer that it was one person alone who came against plaintiff. Supplying this missing, essential fact by inference from the fact that plaintiff was knocked down would be entering the field of conjecture and speculation. This we cannot do. Osterhaus v. Gladstone Hotel Corp., Mo., 344 S.W.2d 91. The trial court did not err in granting defendant’s motion for directed verdict at the close of plaintiff’s evidence.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STORCKMAN, Judge.

text:
    Marilyn BOGUS and Melvin Bogus, Her Husband, Individually, Respondents, v. Rose BIRENBAUM, Appellant.
    No. 49869.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.
    Rehearing Denied Feb. 10, 1964.
    Burton H. Shostak, Robert E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for appellant.
    Jack J. Schramm, Schramm & Schramm, Clayton, for respondents.
   STORCKMAN, Judge.

This is an appeal from a decree in equity setting aside a written release of liability for personal injuries and property damage arising out of a collision of automobiles. The plaintiffs, husband and wife, filed suit jointly for damages. One of the defenses pleaded in the answer was a written release executed by the plaintiffs. In a special reply the plaintiffs alleged that the release was executed as the result of a mutual mistake of fact. On motion of the defendant and with plaintiffs’ consent, the issue as to the validity of the release was separately tried by the court in equity. The decree was deemed a final judgment for purposes of appeal in accordance with Civil Rule 82.06, V.A.M.R. and the defendant appealed.

The automobile collision occurred on the parking lot of an A & P Food Store in St. Louis County as Mrs. Bogus, driving her husband’s car, was entering the lot and the defendant was backing her automobile from a parking space preparatory to leaving. The plaintiff wife pleaded both specific and humanitarian negligence and prayed for damages in the sum of $15,000. Her alleged injuries included a loss of pregnancy. The husband in the same action sought $3,608.81 for loss of consortium and for expenses including repairs to his automobile. The defendant’s answer admitted that the automobiles “came into slight contact” at the time and place in question, denied all other allegations of plaintiffs’ petition, alleged contributory negligence on the part of the plaintiff wife, and pleaded the release.

The plaintiffs, in their special reply to the defense of release, admitted they signed the paper purporting to be a release and delivered it to the agent of the defendant’s insurer and further asserted that $66.86, the amount of the settlement, was the estimated cost of repairing the husband’s automobile, and that a draft in that amount received by the plaintiffs in the mail was not cashed and was tendered back to the defendant’s insurer which refused to accept its return. The alleged grounds for invalidating the release were stated in the reply as follows: “ * * * that said purported release was signed by reason of the fact that there was a mutual mistake of fact upon the part of Plaintiffs and the aforesaid agent of the insurance company for the Defendant with respect to the nature and extent of the injuries suffered by Plaintiff Marilyn Bogus; that the aforesaid agent and servant of the insurance company of Defendant mistakenly believed either that Plaintiff Marilyn Bogus was not injured at all, or that her injuries received in the accident were inconsequential and of a minor nature; that both Plaintiffs likewise did not know the nature and extent of the injuries of Plaintiff Marilyn Bogus and the degree of permanence of said injuries that in reality existed at the time of the execution of said purported release; and that Plaintiffs first learned of the nature and extent of said injuries which existed at the time of the execution of said purported release only after said purported release was signed by them; that Plaintiffs would not have signed the said purported release if they had known the true nature and extent of the injuries suffered by Plaintiff Marilyn Bogus; that for the foregoing reasons the said purported release should be declared null and void and held of no effect.”

The defendant’s contention on appeal is that the evidence was wholly insufficient to establish a mutual mistake in equity because, if there was a mistake, it was not mutual but unilateral and the injuries relied on by the plaintiffs were not shown to have a causal connection with the accident. In general the plaintiffs assert that the parties did not intend to settle for unknown personal injuries but for property damages only; that it is immaterial that the defendant’s agent acquired all his information with respect to injuries and damage from the plaintiffs; that it was not necessary to prove when the loss of pregnancy occurred or, in this trial, that it was caused by the accident.

The release, in evidence as defendant’s exhibit A, recited receipt of the consideration of $66.86 and stated that Mr. and Mrs. Bogus released the defendant and her husband “of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen, and unforeseen, bodily and personal injuries, loss and damage to property, and the consequences thereof, resulting, and to result, from auto collision which happened on or about the 16th day of Sept, 1960 at or near A & P Parking Lot on Olive Street Road.” The release also contained the stipulation that: “It is further understood and agreed that this settlement is the compromise of doubtful and disputed claims, and that the payments are not to be construed as an admission of liability on the part of Carl Birenbaum and Rose Birenbaum by whom liability is expressly denied.” Mr. Bogus admitted that he read the release before signing it. Mrs. Bogus could not recall reading the release but admitted signing it. The most unusual feature of this case is that all contacts between the parties were by telephone and mail.

Mrs. Bogus testified her car was hit while she was sounding her horn to alert the driver of the automobile which was backing out of a parking space. The rear of the defendant’s automobile struck the front right section of the Bogus car and Mrs. Bogus was jarred against the steering wheel. She felt a slight pain in her chest and lower part of her stomach at the time it happened but the pain was not continuing. Mr. Bogus was called and went to the scene of the accident where he talked with the defendant and then took his wife home. After she got home, Mrs. Bogus became upset and vomited for three or four days. She was nervous for about a week. She felt that being nauseated was a normal condition in connection with her pregnancy.

Mrs. Bogus was twenty years old at the time of the accident and was the mother of one child. In August before the accident on September 16, 1960, Mrs. Bogus was examined by her doctor and informed that she was pregnant. Mrs. Bogus was concerned about her pregnancy immediately after the accident but it went out of her mind completely when “nothing happened” to her. Prior to a visit to Dr. Ira Gall, her obstetrician, on September 27, 1960, her morning sickness had stopped, but she was not disturbed because according to her own and her doctor’s calculations it would have been normal for the nausea to. end. She was concerned because she had no sensation of soreness in her breasts. She told Dr. Gall that she did not feel pregnant and reported to him she had been in an automobile accident on September 16. She began “spotting” about October 8 or 9.

Dr. Gall further testified that he examined Mrs. Bogus on October 4 and found her uterus was not in a condition consistent with pregnancy but he did not tell her about it. On October 12 she visited Dr. Gall and complained of cramps along with spotting. The doctor prescribed medication for her on this visit and again on October 18. Dr. Gall suspected a troublesome pregnancy in the last two weeks in October. In late October a repeat pregnancy test was made and it was negative. On November 4 at Jewish Hospital, Dr. Gall performed a curettement on Mrs. Bogus. This is a procedure whereby the products of conception are removed from the lining of the uterus by scraping. The post-operative diagnosis of Mrs. Bogus’ condition was a missed abortion which is unlike a regular miscarriage or abortion in that the products of conception are not passed with bleeding or hemorrhage, but instead the tissues and parts are absorbed by the body. Some mention of the trouble with the pregnancy may have been made to Mr. and Mrs. Bogus in October. The negative pregnancy test of Mrs. Bogus was made late in October, but Mr. and Mrs. Bogus had no knowledge of Dr. Gall’s diagnosis until shortly before she went to the hospital:

William A. Grillen, a licensed attorney and an adjuster for Fireman’s Fund Insurance Company, was assigned the Bogus file about September 22 and that day or the next he made a telephone call to the Bogus home. Mr. Bogus was not there but he talked to Mrs. Bogus. She testified that he asked her how she was feeling and she said “fine”, and asked him to call back and talk to her husband for further information which Mr. Griffen did on September 26. During this conversation, Mr. Bogus told him that Mrs. Bogus was pregnant, but she was not injured. Mr. Bogus did not have an estimate of the damage to his car but said he would obtain one and send it to Mr. Griffen. On October 18, Mr. Bogus telephoned Mr. Griffen to tell him he had the estimate. Mr. Griffen was not in and Mr. Bogus told the girl in the office that he would mail the estimate which he did. Thereafter Mr. Griffen prepared a release for $66.86, the amount of the estimate, and mailed it to Mr. and Mrs. Bogus who signed and returned it by mail. The release is undated and none of the witnesses were sure just when it was signed, but it would appear to have been after October 21 and before November 1, the date of the draft. Mr. Bogus testified that his wife’s mother was the first person to suggest that there might be some connection between the accident and Mrs. Bogus’ condition which they had been informed would require hospitalization. That is why he held onto the draft and called his lawyer. Counsel for the plaintiffs tendered a return of the draft and it was refused.

The defendant relies chiefly upon Von-dera v. Chapman, 352 Mo. 1034, 180 S.W.2d 704, wherein the plaintiff sued for $25,000 and the defendants pleaded a release made nine days after the accident for a consideration of $175. The release by its terms covered injuries then known, as well as “any future injuries, losses and damages not now known or anticipated but which may later develop or be discovered”. In her reply the plaintiff admitted execution of the release and alleged that at the time the release was executed the only injuries known were superficial and slight, but thereafter the plaintiff discovered serious and permanent injuries; that she would not have settled her claim if she had known of the additional injuries; that the settlement was the result of a mutual mistake by her and the defendants. A demurrer to her reply was sustained and on appeal the judgment for the defendants was affirmed. This court held that since the parties dealt at arm’s length in good faith the release precluded recovery for the unknown as well as the known injuries. The court also stated that it was the policy of the law to encourage freedom of contract and peaceful settlement of disputes, and a person under no disability and under no compulsion may convey his property or relinquish his rights for a consideration as small as he may decide.

The Vondera case was cited with approval in Kavadas v. St. Louis Southwestern Ry. Co., Mo.App., 263 S.W.2d 736, where plaintiff’s judgment of $3700 for personal injuries was reversed because a release executed by him for a consideration of $12.18 was held not to be invalid on the ground of false representations. In much the same tenor as the reasoning in Vondera, the Kavadas opinion states, 263 S.W.2d 739-740: “There is some evidence in the record to indicate that plaintiff sustained substantial injuries and we must therefore confess that we are reluctant to hold that he is barred from recovery because he signed a release upon receipt of $12.18. However, this court cannot relieve the plaintiff of the consequences of his .bargain without a valid legal reason for doing so. Mere inadequacy of consideration alone is not enough. Vondera v. Chapman, 352 Mo. 1034, 180 S.W.2d 704. To hold otherwise would establish a precedent which would make it difficult to settle controversies and would be contrary to the established policy of the law to encourage peaceful settlements.” Vondera was also relied on in Croker v. Consolidated Service Car Company, Mo., 365 S.W.2d 524, 532, on the proposition that it was the policy of the law to encourage settlements for whatever sum the parties freely and fairly agree upon. On the ultimate facts, Vondera and the instant case have a great deal in common.

A mutual mistake regarding the existence of a fact which goes to the essence of a release will render the contract voidable where it later appears that such fact did not exist, but a mutual mistake in prophecy or opinion may not be taken as a ground for rescission where such mistake becomes evident through the passage of time. Jennings v. Metropolitan Life Ins. Co., Mo.App., 166 S.W.2d 339, 344[2-3]; Oakley v. Duerbeck Company, Mo., 366 S.W.2d 430, 433[2]; 76 C.J.S. Release § 25, p. 645.

The cancellation of a release on the ground of a mistake is ordinarily granted only where the mistake is mutual, but it will be granted where the mistake of one party is either known to the other party or is so obvious that it must have been known to him and the mistake concerns a matter so vital that it could be said that the parties, because of miscalculation or false information, never actually agreed to the same proposition. Saline County v. Thorp, 337 Mo. 1140, 88 S.W.2d 183, 185[1]; Smith v. Githens, Mo.App., 271 S.W.2d 374, 379[13].

Where execution of a release purporting to rest on a consideration is admitted, the plaintiff has the burden of proving the invalidity of the release. Conley v. Fuhrman, Mo., 355 S.W.2d 861, 864[2]; Foster v. Aetna Life Ins. Co., 352 Mo. 166, 176 S.W.2d 482, 485[5].

The plaintiffs urge that the rationale of Vondera v. Chapman is unclear as it applies to the case at bar, and if it is determinative the rule should be changed. We are cited to cases from other jurisdictions and exhorted to adopt a more liberal rule. The import of the cases cited is fairly summarized by this statement from an annotation entitled, “Avoidance of release of personal injury claims on ground of fraud or mistake as to the extent or nature of injuries”, in 71 A.L.R.2d 82, 88-89: “A few courts, recognizing these difficulties, have said that cases of the type here considered are to some degree sui generis and, substantially abandoning any attempt to fit the situation within the classic limitations of the law of fraud or mistake, have held that the release may be set aside upon a showing of an inequitable result unless it is established that it was ‘fairly and knowingly made,’ * * Since we have concluded that the evidence is insufficient to support a decree for the plaintiffs on any theory, we need not explore the merits or demerits of the Missouri law in this regard.

As a part of their burden of proving the invalidity of the release, the plaintiffs must, among other things, show that the injuries alleged to have been discovered subsequently to executing the release were caused by the accident in question, that is, that there was a causal connection between the collision of automobiles and the loss of pregnancy and the resulting missed abortion. Cox v.Missouri-Kansas-Texas R. Co., 335 Mo. 1226, 76 S.W.2d 411, 415[4, 5]; Berry v. Kansas City Public Service Co., 341 Mo. 658, 108 S.W.2d 98, 106-107[11, 12]; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 646[2, 3]. The evidence tended to show that there was a post-operative diagnosis of a missed abortion but no testimony that it was caused by the accident. In Cox v. Missouri-Kansas-Texas R. Co., no causal connection was shown between an injury to plaintiff’s hand and a subsequently developed cancer.

As the plaintiffs assert, issues of negligence, causation and the amount of damages are required to be determined, in the trial of the personal injury action, but it does not follow that the plaintiffs do not have to relate the additional injury to the accident in the action to set aside the release. The court certainly cannot -take judicial notice of a matter so unusual and inscrutable to a person without special training. Without such evidence, all related injuries are covered by the release. Dr. Gall testified as to his treatment and the curettement on November 4, but he was not asked and did not give his opinion as a medical expert that the missed abortion was caused by the accident, and there is no evidence in the case from which an inference of that fact can be properly drawn, Since there is no proof that the missed abortion was caused by the accident, plaintiffs’ claim fails and the release cannot be set aside. Wolf v. St. Louis Public Service Co., Mo.App., 357 S.W.2d 950; Housden v. Berns, 241 Mo.App. 1163, 273 S.W.2d 794; Poe v. Illinois Cent. R. Co., 339 Mo. 1025, 99 S.W.2d 82; General Refractories Co. v. Sebek, 328 Mo. 1143, 44 S.W.2d 60; Farmer v. Arnold, Mo., 371 S.W.2d 265.

The judgment is reversed.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    E. S. BOLLINGER, Mary M. Bollinger, and Terry Bollinger, Respondents, v. Louis HENRY, Appellant.
    No. 49747.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 10, 1964.

      Paul A. Mueller, Jr., Jackson, J. B. Schnapp and Maurice B. Graham, of Schnapp, Cooper & Graham, Frederick-town, for appellant.
    Eugene S. Heitman, Marble Hill, Stephen N. Limbaugh, Limbaugh, Limbaugh & Russell, Cape Girardeau, for respondents.
   STOCKARD, Commissioner.

Defendant has appealed from the judgment of the trial court in plaintiffs’ suit to quiet title and for an injunction to prohibit defendant from taking water from a millrace. The issues on this appeal include the correctness of the determination of title to real estate. Therefore, this court has appellate jurisdiction.

On September 2, 1936, E. S. Bollinger and his wife purchased from J. B. Dolle and others 2.40 acres of land on which was located a mill. At the same time and by the same deed they also purchased an irregular strip of land, described by metes and bounds, approximately one mile in length and varying in width (the width is not shown but from an exhibit it appears that the width would vary from approximately 20 feet to more than 100 feet) and extending from the 2.40 acre tract northwesterly to and including a portion of the Big Whitewater Creek, a nonnavigable stream, where there was located a then deteriorated log dam. On this irregular strip of land was located a millrace which carried water from the pool caused by the dam to the mill and then through a tailrace back to Big Whitewater Creek. We shall hereafter refer to this irregular strip of land as the millrace strip.

The dam, millrace and mill were first built within a short time after 1800, and for approximately 75 years prior to 1936 had been owned by the Dolle family. After E. S. Bollinger bought the property he rebuilt the dam with concrete, and Terry Bollinger, his son, operated the mill under an oral lease or agreement and engaged in grinding flour, corn meal and livestock feed. In the “early forties” the grinding of feed by use of water power was discontinued and thereafter it was ground by use of a gasoline powered engine. In April 1958 the grinding of flour was completely discontinued, and there is’nothing to indicate any intention to resume that operation. Since April 1958 the mill has been used only one day each week, Saturday, to grind corn meal by use of water power.

Prior to the above mentioned conveyance to E. S. Bollinger, the land on both sides of the millrace belonged to the Dolle family. In 1943 appellant and his wife purchased a tract of land from Clyde Whaley, who a short time previously had purchased it from the Dolle family. This tract of land adjoined the upper one third of the millrace strip on the southeast side and apparently it also bordered upon or included a portion of Big Whitewater Creek above the dam. Appellant also acquired land adjoining the millrace strip on the northeast side which also bordered upon or included a portion of Big Whitewater Creek below the dam. Other persons owned land below that of appellant which adjoined the millrace strip.

The millrace is rather crooked and is 12 to 14 feet in width. The water has an “average” depth of 3 feet when a gate located in the millrace is closed, but when the gate is open the water is 12 to IS inches in depth and running rapidly. The location of this gate in the millrace is not precisely shown but it apparently is near the mill. At one time either E. S. Bollinger or Terry Bollinger, or both, asked appellant, or appellant’s son who was speaking for his father, for permission to change the location of a small portion of the millrace to eliminate a sharp curve, and after viewing the area of the proposed change permission was given. Terry Bollinger said that this permission was obtained in 1946 and that the change was made at that time. E. S. Bollinger stated that a change in the millrace was “cut” with appellant’s consent and that “it’s that way yet,” but he did not say when the change was made. Appellant and his son stated that this change occurred in 1950, and this is substantiated by Jack Latimer, the dragline operator for the contractor who dug the new channel, who said it was made “around Thanksgiving in 1950.” Latimer also testified that he did not start to work for the contractor until August of 1949. Both E. S. and Terry Bollinger deny that they moved the millrace off the millrace strip, and Terry Bollinger testified that they asked appellant’s permission only because of “good manners, I suppose.” However, two surveys made by the county surveyor shortly before the trial of this case, one of which was made at the request of Everett Bollinger, another son of E. S. Bollinger, unquestionably show that at the place in question the millrace leaves the millrace strip and cuts across land included in the description of land conveyed to appellant by Clyde Whaley and which is not included in the description of any land conveyed to E. S. Bollinger.

For seven years previous to the trial appellant pumped water each year from the millrace for irrigation purposes during July and August, or the “dry part of the summer,” except two years when irrigation was not needed. According to Terry Bollinger, appellant pumped “from different places,” and he said that appellant asked permission to do so for one day, and that permission “for the one day” only was given. Appellant also pumped water from Big Whitewater Creek but Terry Bollinger admits he has no objection to that. Appellant’s position is that he pumped water only from Big Whitewater Creek or from that part of the millrace located upon and crossing his land except on one occasion only when he asked for and obtained permission to pump from another place on the millrace. In any event, appellant does not now claim the right to pump water from any place in the millrace except where it crosses over what he claims to be his land. Although appellant pumped water from the millrace for five out of the previous seven years, neither E. S. nor Terry Bollinger objected to him doing so prior to the filing of this suit.

The trial court found that “plaintiffs” (which included Terry Bollinger who claims no ownership in the mill or millrace in any respect whatever but whose interest at most is that of a lessee), “have been in the absolute, open, notorious, adverse, continuous and exclusive possession and use of said mill and millrace * * and it “ordered and adjudged” that “plaintiffs” are the fee simple owners of “such real estate and that title to same has been divested from defendant to plaintiffs * * * by limitation under the law of this state.” There is no contention by appellant on this appeal that E. S. Bollinger and his wife do not have fee simple title to the mill and to all of the millrace except that small portion which crosses over land conveyed to appellant by Clyde Whaley who in turn received it from the Dolle family. The millrace is not described in the judgment of the trial court except as “a millrace water course about ten feet wide and of an average depth of one foot,” which is “approximately one mile long,” and “is located on land described in Exhibit ‘A’ attached to the original petition.” Exhibit ‘A’ is a copy of the deed, executed on September 2, 1936 from the Dolle family to E. S. Bollinger and his wife. The trial court made no specific finding concerning the changing of the millrace with appellant’s permission, and by reason of this and the reference to the land described in the 1936 deed, it would appear that it found that the millrace had not been changed to cross over land owned by appellant. However, other than the small portion of the millrace on appellant’s land by reason of that change, there is no showing in the record that any part of the millrace has ever been on land from which the title could be divested from appellant by limitation.

Appellant contends that he is entitled to pump water from that part of the millrace which is on his land, an issue we need not decide unless the millrace is in fact on his land. Therefore, we shall first determine that question.

E. S. and Terry Bollinger contend that when the small portion of the millrace was changed it was not moved off the millrace strip of land as described in the deed from the Dolle family in 1936. We conclude that the evidence clearly establishes otherwise. Within a short time before the trial of this case the county surveyor, who was duly licensed as a surveyor and whose qualifications are not challenged, on two occasions surveyed the boundary line between the land of appellant and the millrace strip. The results of his surveys were shown on two maps or sketches, introduced in evidence as Defendant’s Exhibits B and C, and both of these exhibits show that at the place where E. S. and Terry Bollinger requested permission from appellant to move the millrace to straighten out a sharp curve, the millrace is now located on and across land the record title of which was then and is now in appellant. The record also clearly establishes that at the time the change in the millrace was made E. S. and Terry Bollinger both knew it was being moved onto the land of appellant. Respondents admit in their brief that “the evidence was uncontroverted that permission to alter the race was asked of appellant,” a request not needed and not even appropriate if the new location of the millrace was to be on the millrace strip. While digging the new channel the contractor unearthed a boundary marker consisting of a pipe set in concrete. After reporting this to Mr. Bollinger (apparently Terry Bollinger) in the presence of appellant, the contractor was told to go ahead and remove the boundary marker and construct the new channel for the millrace. We necessarily conclude that a portion of the channel of the millrace was moved by the Bollingers to straighten out a curve, and that it was knowingly placed on land then belonging to and in which the record title was in appellant, and that this change was made with the express permission of appellant.

Respondents contend that if a portion of the millrace was placed on appellant’s land they now have title to that part of the millrace by adverse possession. We cannot agree. As a general rule permissive use or permissive possession of land cannot be adverse, Dalton v. Willis, 360 Mo. 329, 228 S.W.2d 709; Eld v. Ellis, Mo., 235 S.W.2d 273; Consolidated Dist. No. 4 of Jackson County v. Glandon, 363 Mo. 1, 247 S.W.2d 770; 3 Am.Jur.2d Adverse Possession § 36, and respondents state in their brief that “It is not disputed * * * that permissive user falls short of adverse user.” In view of our finding that a portion of the millrace was placed upon, and now is located upon and across land of appellant with his express permission, and in view of respondents’ admission of the legal principle as to permissive user, we need not detail further the reasons for our conclusion that the trial court erred in holding that “plaintiffs” now have title by adverse possession to that portion of appellant’s land over which the millrace is now located.

We turn now to the question of whether appellant may take any water from the millrace at the place where it crosses his land, and if so, to what extent. In the consideration of this issue a further statement of facts would he helpful.

The pool of water caused by the dam extends upstream about a quarter of a mile. Most of the time water flows over the top of the dam hut in dry weather all the water is diverted into the millrace where it runs to the mill and through a tailrace hack to Big Whitewater Creek. Terry Bollinger could not say how much water was needed to operate the mill. He stated that the millpond had not been cleaned since 1946 or 1950, that it was full of mud, and “the storage water on that millpond would last about five minutes running the mill if it was full.” The precise amount of water taken from the millrace by appellant is not shown. He pumped water from the race only during a few days each year, when he pumped at all, and then not constantly. He pumped by use of a 4-inch flexible pipe and the pump would not operate in less than nine inches of water. Therefore, we find it difficult to accept Terry Bollinger’s statement that appellant took “about half the water supply in dry time,” but the testimony of appellant and his witness that the pumping reduced the level of the water only an inch or two and had very little effect on the height of the water in the millrace seems far more reasonable. Terry Bollinger was vague as to the effect of the pumping on the mill operation, and his testimony consisted primarily of conclusions rather than factual statements. In addition, when the mill is not operating, which is six out of every seven days, the water flowing through the millrace, which at times is the total flow of Big Whitewater Creek, is not used in any manner whatever in the mill operation.

It appears from the record that at the location of the dam respondents E. S. Bollinger and his wife own hut a small tract of land which includes the dam and a portion of the reservoir of water. While they may own the bed of the nonnavigable stream, Elder v. Delcour, 364 Mo. 835, 269 S.W.2d 17, 47 A.L.R.2d 370, they do not have exclusive title to the water flowing down Big Whitewater Creek even while it is on their land, and neither do they have complete freedom of use or control of the water. As stated in Elder v. Delcour, supra, at p. 24 of 269 S.W.2d, the owner of land through which a nonnavigable stream flows is “subject to the burdens imposed by the river,” and is subject to certain limitations imposed in the public interest in the use of the water and the control of the land constituting the bed and banks of the stream. One such limitation, for example, is that such landowner cannot divert the water in a natural watercourse to the exclusion of others. Dardenne Realty Co. v. Abeken, 232 Mo.App. 945, 106 S.W.2d 966.

Missouri is notable for the fact that it has almost no statutory law concerning rights of individual members of the public and of the public generally in public water and watercourses, and such cases as there are based on the common law usually arise from factual situations pertaining to the existence of too much rather than too little water. The millrace, when constructed, was an artificial watercourse, but as far as is shown by the record before us no part of it was on the land of appellant until the previously mentioned change was made in the course of the millrace. It may be that after more than 150 years the millrace has sufficient permanency to acquire the characteristics and incidents of a natural watercourse, see 56 Am.Jur. Waters § 151, but we need not rule that issue. As a general rule riparian rights do not ordinarily attach to artificial streams in artificial channels. 56 Am.Jur. Waters § 155; Kinney on Irrigation and Water Rights, 2d Ed., § 473. However, there are variations of this general rule, and the variation we consider to be appropriate to this proceeding in which this court, sitting in equity, is to determine whether respondents are entitled to the exercise of the discretionary and extraordinary remedy of injunction, is stated in 56 Am.Jur., Waters § 155, as follows: “Where owners of different parcels of land conduct water across the same in an artificial channel, and do not define their respective interests in the water, their reciprocal rights thereto are to be measured and determined as if they were riparian owners upon a natural stream.” This is the precise factual situation of this case.

The rights of a riparian owner in the water of a stream, in jurisdictions wherein the doctrine of riparian rights obtain, include “the right to the flow of the stream in its natural course and in its natural condition in respect of both volume and purity, except as affected by reasonable use by other proprietors, * * *,” 56 Am. Jur. Waters § 273, and a reasonable use by other proprietors includes the “limited right to use the water to irrigate his riparian lands,” 94 C.J.S. Waters § 314(1), subject to the priority of riparian owners for the supply of “natural wants” which include drinking water for family and for livestock. Kinney on Irrigation and Water Rights, 2d Ed., §§ 500-504. See also Farnham on Waters and Water Rights, § 599. What constitutes a reasonable use is a question of fact depending on the circumstances of each particular case, including, among other things, the volume of water in the stream, the seasons and climatic conditions, and the needs of other riparian proprietors. 94 C.J.S. Waters § 314(2) ; 56 Am.Jur. Waters § 342; Kinney on Irrigation and Water Rights, 2d Ed., §§ 490 and 495; Gould on Waters 3rd Ed., § 208.

We have established that appellant is entitled to the use for irrigation purposes of some water from the millrace at the place where it crosses his land, and respondents admit that on approximately six days out of every seven the water in the millrace flows unused past the mill except to provide drinking water for a few hogs running on the millrace property. We necessarily conclude that the trial court erroneously enjoined appellant from taking any water at any time from the millrace for any purpose whatever.

Respondents make an impassioned plea in their brief for the “preservation of our heritage” as typified by the mill, and asserts that this suit “was brought primarily * * to help preserve this portion of our heritage.” The applicable common law doctrine of reasonable use of water by riparian owners affords an adequate basis to the trial court for the preservation of the mill if the litigants as reasonable men with the aid of enlightened counsel cannot amicably settle their differences.

Appellant asserts that the trial court erred in granting the injunction it did because the dam was constructed in violation of Chapter 236 RSMo 1959, V.A.M.S. We agree with the trial court that there is no merit to this contention, and in any event our ruling on the meritorious features of his appeal makes unnecessary any discussion of this as well as other issues presented’ in appellant’s brief.

The judgment is reversed and the cause remanded for further proceedings according to the views expressed herein.

BARRETT, C., not sitting.

PRITCHARD, C., concurs.

PER CURIAM.

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

All of the Judges concur.