text:
    Ernest EWING, Plaintiff-Respondent, v. Avis PUGH, Defendant-Appellant.
    No. 24738.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      Heilbron & Powell, by Sylvester Powell, Jr., Kansas City, for appellant.
    Sheridan, Sanders, Millin, Peters, Carr & Sharp, by Robert E. Sharp, Kansas City, for respondent.
   MAUGHMER, Commissioner.

This is a suit for property damage to plaintiff’s automobile. A jury was waived. The court found for and entered judgment in favor of plaintiff in the sum of $750. Defendant has appealed. This case being a trial to the court without a jury, the appellate court is required to review the case upon both the law and the evidence as in suits of an equitable nature. However, the judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 73.01(d), V.A.M.R.; Townsley et al. v. Thielecke et al., Mo.Sup., 349 S.W.2d 902; Masterson v. Plummer, Mo.App., 343 S.W.2d 352; City of St. Peters, Mo. v. Kuester et al., Mo.App., 402 S.W.2d 70.

The basic facts are not in material dispute. On December 22, 1964, plaintiff’s 1964 Chevrolet Station Wagon was being operated by his daughter on Dickinson Street, Independence, Missouri, when it collided almost head-on with an automobile being driven at the time by the defendant Avis Pugh. At the time of the casualty plaintiff was insured, as to that particular automobile, with the Equity Mutual Insurance Company. The policy had coverage for collision — $50 deductible. It also contained a subrogation agreement as follows:

“In the event of any payment under this policy, the company shall he subro-gated to all the insured’s rights of recovery therefor against any person or organization and the insured shall execute and deliver instruments and papers and do whatever is necessary to secure such rights. The insured shall do- nothing after loss to prejudice such rights”. (Italics added).

On March 30, 1965, the insured plaintiff Ernest Ewing, signed a document bearing the caption: “Sworn statement in proof of loss (automobile)”. We set out the pertinent parts thereof.

“Name of insured — Ernest H. Ewing.
“Chevrolet-Station Wagon — 64.
“Coverage — Against the perils of collision.
'‘Date of loss — A loss occurred on the 22nd day of Dec., 1964.
“Whole loss — The actual loss and damage to above described automobile as a result of said loss was $1,228.70.
“Amount claimed — Insured hereby claims of this company and will accept from this Company in full release and satisfaction in compromise settlement of all claims under this policy the sum of • $1178.70.
“Subrogation — The Insured hereby covenants that no release has been or will be given to or settlement or compromise made with any third party who may be liable in damages to the Insured and the Insured in consideration of the payment made under this policy hereby subrogates the said company to all rights and causes of action the said Insured has against any person, persons or corporation whomsoever for ■damage arising out of or incident to said loss or damage to said property and authorizes said Company to sue in the name of the Insured but at the cost of the Company any such third party, pledging full cooperation, in such action.
(Signed) Ernest H. Ewing”.

(Italics added to printed form).

And on the back page:

“The loss or damage for which this claim is made has been made good to my entire satisfaction and I' hereby release and discharge the Equity Mutual Ins. Co. from all claims and demands for loss or damage which occurred on or about the 22nd day of Dec., 1964, and authorize payment to Bill Ireland Chevrolet the sum of - Dollars ($-), whose receipt for same shall be a complete acquittance.
(Signed) Ernest H. Ewing”.

Plaintiffs petition, filed originally in Magistrate Court, recites occurrence of the accident, alleged defendant’s negligence, asserted damage to the vehicle of $2300, pleaded payment of $1178.70 of the loss, assignment of that amount only and asked judgment for $1150. There is presently no dispute on the issue of liability on defendant’s part for the damages to plaintiff’s automobile.

The plaintiff, Ernest Ewing, testified that at the time of the collision, his 1964 Chevelle Station Wagon was eight months old, had been driven approximately 8,000 miles and had cost $3900 plus, when new. He expressed an opinion that the car was worth $3400 immediately before and $900 immediately after the accident. He said the “motor was shoved back, the frame sprung”. Three b'ids for repairs were secured. The car was taken to Bill Ireland Chevrolet and remained there eight weeks before the repairs were fully completed. The delay was occasioned primarily because a factory air conditioner was not immediately available. Plaintiff said his mother had passed away over in Gardner, Kansas, and he wanted to' use the car, so he called Bill Ireland Chevrolet, was advised the car was ready and told to come and get it. He stated that when he picked up his automobile he “signed a paper and paid them $80.” He thought the paper “was a $50 deductible, plus tuning it up after eight weeks”. He drove the automobile to Gardner, Kansas, but “the battery was dead”, and Bill Ireland “put in a new battery”. He claimed he took the car back every two or three weeks but “they just refused to do anything else with it”. He said “the car couldn’t be lined up”. “I put on three sets of tires on the front”, “drove it 10,000 more miles and then traded it”. He admitted that he drove the car during all of 1965 and through at least half of 1966 before he traded it. During this period he said he took the vehicle back to Bill Ireland’s on numerous occasions. They “worked on” the power steering, the paint job, the wheel alignment and with respect to other complaints which he made — all without any further charge. Mr. Ewing said he preferred not to have the car repaired in the first place and that Equity Mutual offered “to total it out” as a total loss, but he said that would have cost him $1500 off of the original $3900 cost, so he finally agreed for it to be repaired.

It is defendant’s position on appeal that the court erred in-awarding a judgment to plaintiff because “plaintiff is not the real party in interest” and further, that to allow plaintiff to recover would subject defendant to multiple suits and in effect sanction the splitting of a cause of action. It is the defendant’s contention that Equity Mutual Insurance Company is the real party in interest.

Section 507.010, V.A.M.S. provides that: “Every action shall be prosecuted in the name of the real party in interest, * * ”.

In General Exchange Ins. Corporation v. Young, 357 Mo. 1099, 212 S.W.2d 396, 400, 401, the Supreme Court of Missouri said:

“The business of insuring owners of motor vehicles against property damage by collision is legitimate, useful and widespread. By the insurance contract, before any cause of action accrues, the insured [insurer] obligates itself to pay the owner any property damages he may suffer under the conditions of the policy, with the right of subrogation to the insurer as to any such damages caused by the fault of another. Thus the insurer stands almost, but not quite, in the relation of surety to the insured. At the moment an insured vehicle is damaged or destroyed by the fault of a third person the insurer has a contingent interest in any recovery of damages to the extent of its liability to the owner. That interest becomes a vested right to reimbursement from the third person when the insurer discharges its policy obligation to the insured”.

We quote from the same court, Steele v. Goosen, Mo.Sup., 329 S.W.2d 703, 711, 712, respecting plaintiff’s suit to collect property damages in his own name:

“ * * * respondent contends that ‘plaintiff assigned his entire cause of action as distinguished from the proceeds of the cause of action and therefore divested himself of both legal and equitable title to this cause of action’; that the Western Fire Insurance Company is the real party in interest and it was ‘a necessary party to the cause of action sought to be asserted’ in Count III; and that ‘any amount over and above the amount paid by the insurance company belongs to the insured,’ since the insurance company, although having been assigned the entire cause of action, is subrogated only ‘to the extent of the money hereby paid.’ Respondent cites General Exchange Ins. Corp. v. Young, supra, and State ex rel. Hotel Phillips v. Lucas, 365 Mo. 512, 284 S.W.2d 452. The court’s order of dismissal is affirmed. The document signed by plaintiff constituted an assignment to the insurer of plaintiff’s entire claim for property damage, although, as the policy provided, plaintiff received $50 less than the cost of repairs to his automobile. General Exchange Ins. Corp. v. Young, supra, [357 Mo. 1099,] 212 S.W.2d 396, 401. It is immaterial to any of the issues here that the document signed by plaintiff limits the insurer’s subrogation rights ‘to the extent of the amount hereby paid.’ ” ("Italics supplied).

The case of Hoorman v. White, Mo.App., 349 S.W.2d 379, is somewhat similar to the instant case. In Hoorman the total repair bill was $338.27; he made a claim against his carrier under the provisions of the policy; the company paid the repair bill, less the deductible ($50); he executed an “Auto Repair Order and Release” which was in part as follows:

“It is agreed by the insured that upon payment of the foregoing claim, Farm Bureau Mutual Insurance Company of Missouri is hereby subrogated to all claims and rights of action of the undersigned against any third person or persons, firms, corporations or estates to the amounts so paid and the undersigned assigns and sets over to the said company all such claims with the right to prosecute the said action or actions in the name of the assignor.
* * * * * *
“Plaintiff contends he is still a real party in interest to the extent of the $50 which his carrier did not pay on the repair bill and also, because he had the right to recover the difference between the market value of the car before and after the collision”.

The court disposed of plaintiff’s contention with this statement:

“Plaintiff assigned his entire cause of action and that includes the measuring of damages by the difference in market values of the car before and after the collision, as well as any other ‘measure’ by which damages might be ascertained”.

In this Hoorman case the trial court sustained defendant’s motion to dismiss and on appeal the action of the trial court was affirmed.

Lumbermen’s Mutual Casualty Co. v. Norris Grain Co. et al., (C.A.8) 343 F.2d 670, syll. 9, (applying the Missouri law) held:

“Sole and unrestricted assignee of entire claim based on insurance policy, upon receipt of assignment, becomes as to assigned claim the real party in interest * * * ”,

In the case before us plaintiff does not contend that he was induced by fraud or misrepresentation into signing the proof of loss, including the subrogation and assignment. Plaintiff really takes two positions on appeal. He says first that he did not really assign the whole cause of action, is still the real party in interest and should be permitted to maintain a suit for not only the $50 deductible, but also for the difference in the value of his automobile immediately before and immediately after the accident, less the amount paid by the carrier. This is exactly the contention which was denied by the court in Hoorman v. White, supra. We believe the cases which we have cited herein are not in accord with the plaintiff’s contentions. The situation here is different from those cases where it is only shown that some third party paid all or part of the plaintiff’s property damage with no proof of assignment or subrogation agreement or even of the policy provisions. Hayes v. Jenkins, Mo.App., 337 S.W.2d 259; Bauer v. Holtkamp et al., Mo.App., 389 S.W.2d 850.

Plaintiff’s second theory as we understand it is that the “proof of loss and assignment taken by Equity Mutual Insurance Company was not valid and was not enforceable, because of the illegality created in violation of the statutory law, between appellant and the Equity Mutual Insurance Company”. We shall try to summarize the reasoning of plaintiff in arriving at such conclusion. Section 435.010, V.A.M.S. provides:

“Any contract or agreement hereinafter entered into containing any clause or provision providing for an adjustment by arbitration shall not preclude any party or beneficiary under such contract or agreement from instituting suit or other legal action on such contract at any time, and the compliance with such clause or provision shall not be a condition precedent to the right to bring or recover in such action”.

Mr. C. F. Warner, general counsel for Equity Mutual, testified that his company and defendant’s liability carrier (with numerous other insurers) had entered into an arbitration agreement which precluded litigation by them of any cause arising under any subrogation agreement involving less than $2500. Plaintiff says such arbitration agreement violates Section 435.010, supra, forecloses the jurisdiction of the Missouri courts and also denies plaintiff’s constitutional right to his “day in court”.

Plaintiff invites our attention to numerous cases which he says support his stated ultimate conclusion. We have read and shall briefly discuss those cases:

In Parker v. School District of Valley Park, Mo.App., 325 S.W.2d 59, the question was whether or not a school teacher had voluntarily abandoned his employment.

Schoene et al. v. Hickam et al., Mo.Sup., 397 S.W.2d 596, has to do with enjoining a foreclosure. The holding was that plaintiffs who employed a licensed salesman who acted as a real estate broker, although not so licensed, were not in pari delicto with the salesman and could use the Missouri courts to enjoin a foreclosure.

Gilbert v. Edwards et al., Mo.App., 276 S.W.2d 611, rules that a contract between an unlicensed real estate agent and a property owner for real estate sale commissions is illegal and unenforceable.

Cook et al., v. Brotherhood of Sleeping Car Porters et al., Mo.Sup., 309 S.W.2d 579, holds that Missouri courts have no jurisdiction to restrain discharge of employees who have failed to exhaust their administrative remedies provided in Railway Labor Act.

Rosenberg v. Gas Service Company, Mo.App., 363 S.W.2d 20, merely holds that an option agreement, leaving an essential element for future agreement, is not enforceable and does not satisfy the requirement of the Statute of Frauds that it must be in writing. It seems to us to be abundantly clear that none of these authorities presented by the plaintiff are.in point or support his position.

It is our belief that Section 435.-010, supra, merely makes unenforceable betzveen the parties any requirement for arbitration. So, if plaintiff’s liability policy contained a mandatory provision for arbitration as to any controversy between himself and the insurer, under the contract, plaintiff would not be bound by it. But after he assigns his whole claim to the insurer, then such insurer, becoming and being the real party in interest, could arbitrate the matter with defendant and with defendant’s insurer if those parties voluntarily wished to do so. An arbitration agreement under the statute and under Missouri law is not void, but only voidable at the behest of either party. The statute does not declare any such agreement to be void. It says, rather, any such agreement “shall not preclude any party or beneficiary” from instituting a suit. However, after settlement and assignment, plaintiff is no longer a party in interest to that particular claim. As a matter of fact, voluntary arbitration agreements are authorized and sanctioned by Section 435.020, V.A.M. S., which states:

“All persons, except infants and persons of unsound mind, may, by instrument of writing, submit to the decision of one or more arbitrators any controversy which may be existing between them, * * * ”

We believe and rule that defendant’s •motion for a directed verdict on the ground that plaintiff is not the real party in interest under the Missouri law should have been sustained.

The judgment is reversed and the cause remanded with directions to set aside the judgment heretofore entered and to enter judgment for the defendant.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    Neville Marie NIEMAN, Plaintiff, v. FIRST NATIONAL BANK OF JOPLIN, Garnishee of Otto F. Nieman, Garnishee, Hazel Nieman, Intervenor.
    No. 24680.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.
    Philip H. Schwarz, St. Joseph, for appellant.
    Whitney Potter, Dale, Potter & Flynn, St. Joseph for garnishee.
    Warten, Wells & Burden, Joplin for intervenor.
   SPERRY, Commissioner.

Plaintiff, Neville Marie Nieman, had obtained a judgment against Otto F. Nie-man, Jr., her former husband, for alimony, child support and attorney fees, which had accumulated to a claimed total of $1,407.75, including costs. She summoned First National Bank of Joplin, Missouri, hereafter referred to as garnishee, in an effort to collect that sum from assets of Otto F. Nieman, Jr., in its custody. Mrs. Hazel Nieman, the widowed mother of Otto, intervened. She moved to dissolve the garnishment and to dismiss the proceedings. The judgment was that intervenor’s motion to dissolve the garnishment he sustained, that garnishee be released, and that the proceedings be dismissed. Plaintiff appeals.

Answering plaintiff’s “Interrogatories to Garnishee”, the bank answered that: ”At the time of service of garnishment, there was a savings account with garnishee in the names of Hazel or Carl H. Nieman or Otto F. Nieman, Jr., or Mrs. Clyde T. Love, Jr. Said account is designated as a joint account on the authorized signature card, a copy of which is attached hereto. According to the signature card Hazel Nieman, Carl H. Nieman, Otto F. Nieman, Jr., and Mrs. Clyde T. Love, Jr., are authorized to withdraw funds from said account. According to said signature card, said account was opened by Hazel Nieman on May Sth, 1959, and the other names were apparently added to the signature card on September 4th, 1959. * * *. At the time of service of garnishment the above account contained the sum of $1,706.74, and the sum of $1,407.75 is now being held in same”.

Intervenor offered the testimony of Mr. Shy, assistant cashier of garnishee. He identified certain exhibits, which were offered and received in evidence, as being business records kept by garnishee. Exhibit One was identified by the witness as being a signature card for an individual savings account, opened in the name of In-tervenor on May 5th, 1959, for the sum of $864.03. Exhibit Two was identified as being a signature card in the name of Hazel Nieman, or Carl Nieman, or Otto F. Nieman, Jr., or Mrs. Clyde T. Love, Jr., dated September 4th, 1959. The witness stated that a notation on the card indicated that this card makes a previous account joint and that “this account was originally opened on May 5th, 1959 for $804.03, Hazel Nieman”. He stated that Hazel Nieman’s genuine signature appears on both cárds, that Exhibit Two is the same card that is attached to garnishee’s answer filed herein, and that it contains a social security number, as required by law, and which the witness stated, he presumed was that of Mrs. Nieman. (Mrs. Nieman, later, stated that it was her social security number). He stated that no other social security number appears on the card.

The witness identified Exhibit Three as being a part of garnishee’s records and stated that it was a signature card in the name of Otto F. and Neville Marie Nieman, indicating an account opened September 30th, 1959, which had a balance of fifty-nine ($.59) cents. The witness identified certain exhibits, which were admitted in evidence, as being ledger sheets of the Hazel Nieman account, showing deposits and interest payments on the account. All interest payments were credited to inter-venor.

Intervenor testified to the effect that the signatures on Exhibit Two were those of herself and her three children; that she established the account, originally, in her own. name and with her own money; that she, later, caused the new account (Exhibit Two) to be opened by transferring the balance shown in Exhibit One to the new joint account shown by Exhibit Two; that she made all the deposits and withdrawals from the account; that all funds going into-it represented her savings as an employee of the State of Missouri; that she was, and is, a widow. Plaintiff’s counsel admitted that intervenor paid all income taxes on the account. Intervenor stated that: “I put the children’s names on the account so if anything happened to me, in case of death, it could be their money and they wouldn’t have to go through court”.

The evidence in this case compels the conclusion that the entire amount shown in this account, by Exhibit Two, represents the personal savings and deposits made by intervenor, and that Otto F. Nieman, Jr., contributed nothing thereto. Indeed, there is. no evidence or contention to the contrary.

However, plaintiff objected to the introduction of- the oral testimony and Exhibits which establish these facts, and she contends that the admission of same constitutes error because of the rule that the terms of a written contract may not be varied by oral evidence or extrinsic circumstances. This contention must be denied.

In Jones on Evidence, Fifth Edition, Vol. 2, page 928 appears the following:

“PAR. 483. PERSONS AFFECTED BY. PAROL EVIDENCE RULE-STRANGERS. — The rule excluding extrinsic evidence which is sought to be introduced for the purpose of affecting a written instrument is applied only where the controversy is between the parties to the instrument or to their privies. * * *”. (Emphasis ours).

In Slinkard v. Lamb Const. Co. (Mo.App.) 212 S.W. 61 it was said:

“ * * *. In view of the fact that defendant company is a stranger to the alleged contract of release and is not bound by it, the rule that in the absence of fraud, accident, or mistake, parol evidence is not admissible to vary the terms of a written contract, has no application. That a third party or a stranger to a contract cannot invoke the rule is no longer open to question. * * * (Emphasis ours).

This decision was affirmed by the Supreme Court en banc, Slinkard v. Lamb Const. Co., 286 Mo. 623, 225 S.W. 352.

In Berry v. Royster, Mo.App., 232 S.W. 477, 479, this court said:
“The rule against contradicting, varying, or explaining a written contract does not apply to one who is not a party thereto”.

In Schnellmann v. Southern Commercial & Savings Bank, 123 Mo.App. 188, 100 S.W. 575, plaintiff, the divorced wife of Alois Schnellmann, obtained a judgment against him for alimony. Execution was issued and the bank was summoned as garnishee. Mary Schnellmann, the second wife of Alois, interpleaded. Evidence was received tending to show that the joint bank account of Alois Schnellmann and his second wife Mary, consisted exclusively of money furnished by Mary. The court did not discuss the rule prohibiting varying the terms of a written contract but we note that plaintiff was a stranger to the contract involved. The judgment for Mary Schnellmann was affirmed. The court said (576) :

“The plaintiff gave no credit to Alois Schnellmann on the strength of the deposit in the bank, and hence has no equitable claim against the fund. * * *. In this view of the law of the case, the judgment is so manifestly for the right party that it is wholly unnecessary to give any attention to the declarations of law given for plaintiff”. (Emphasis ours).

Judge Goode concurred on the ground that the question of Mary Schnellmann’s ownership of the fund was one of fact, and that the court gave correct declarations of law.

In Cordes v. Straszer et al., 8 Mo.App. 61, 63, the St. Louis Court of Appeals said:

« * * *
“2 It is contended that the testimony of Reus, the maker of the mortage, was incompetent; that he should not have been permitted against the objection of plaintiff, to show that the amount of his indebtedness was not correctly set out in the deed. The rule that oral testimony is inadmissible to vary the terms of a written instrument is invoked. But this rule has no application here, because this is not a suit between the parties to the instrument. The rule was never intended to affect third parties. * * * ”,

In the case at bar, plaintiff is a stranger to the contract establishing the account which she seeks to have applied in payment of her judgment against one of the contracting parties. She cannot successfully .invoke the rule upon which she relies. She cites and relies on what was said in Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817, 820. That decision is not applicable in this case. There a joint account had been established by a Mr. Crandall (deceased) and one Hattie Watts, deceased’s sister-in-law, nurse, and his survivor. Deceased’s executor claimed the fund and offered evidence to prove that it consisted entirely of money belonging to and furnished by the deceased. The Supreme Court ruled that the terms of the written contract between Crandall, Watts and the bank could not be varied by introduction of extrinsic evidence. However, the executor, in that case, stood in the shoes of the deceased and the rule was, therefore, applicable. He was not, in law, a stranger to the contract.

We next consider whether plaintiff, who has a judgment against one, only, of four card signatories to a joint bank account, each having the right to withdraw therefrom and to take all as survivor, may subject that account to payment of her claim, where, as here, the debtor contributed nothing to the joint account. Plaintiff says this is a case of “first impression” in Missouri. In view of the decision in the Schnellmann case, supra, and what the court said in the course of its opinion, we cannot agree with that contention. While the court, possibly, might have reached the result it did reach on the ground that the joint account was in the name of a husband and wife, the court did not rest its decision on that ground. It tacitly approved of the trial court’s action in hearing evidence concerning the establishment of the account and whose money was placed in it. It held squarely that plaintiff, in that case, had no equitable interest in the fund and was not entitled to recover any part of it to satisfy her judgment for alimony against her ex-husband. There is no material difference between the facts shown in that case and those appearing here.

In A.L.R. 3rd Series, Vol. 11, Annotation — Joint Bank Account as subject to Attachment — page 1465, 1. c. 1470, par. b, it is said:

« * * *
“[b] PRACTICE POINTERS—
<< * ⅝ ⅜
“Comparison of the earlier cases dealing with the right of a creditor to invade a joint bank account in satisfaction of the debt of only one depositor with those decided in more modern times evidences increasing emphasis on the actual ownership of the funds in the account as the criterion for recovery by the creditor. Thus, while it may be an overstatement to say that such factors as the property rules governing joint tenancies generally, or the exact wording of the contract between the depositors and the bank, are unimportant, it is apparent that modern courts no longer regard them as controlling in any given case, and the attorney litigating in this area of law would do well to stress his showing that the funds in the account actually were (or were not, as the case may be) the property of the debtor depositor. In this connection, the presumptions of ownership which may exist in favor of or against the nondebtor depositor should not be overlooked, and the case should be built strongly enough to insure that the burden of proof resulting from the operation of such presumptions may be successfully carried. * * *

Following the above, the author proceeds to discuss “General Principles of Law”. Among decisions cited on the proposition that a creditor of one joint depositor may or may not garnish the account, the case of Schnellmann v. Southern Commercial & Savings Bank, supra, is cited. That case is authority for the proposition that the creditor of one joint depositor who, in fact, has no financial investment in the account, may not invade it to collect his judgment. That ruling controls this case and we approve of it.

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: HOWARD, Presiding Judge.

text:
    Ronald A. JENKINS, Appellant, v. Billy D. ROBERTS, Respondent.
    No. 24740.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      John A. Watkins, Kansas City, for appellant.
    Phillips & Rice, Independence, for respondent.
   HOWARD, Presiding Judge.

This is a suit wherein plaintiff seeks damages for the conversion of a super-modified racing car, together with punitive damages. The defendant counterclaimed on an open account. A jury trial resulted in verdict and judgment for plaintiff on his cause of action in the amount of $2,500.00 actual damages, $600.00 interest and $2,750.00 punitive damages, and for plaintiff on defendant’s counterclaim. In the view we take of the case, a more extended statement of facts is not required. We shall refer to the parties as they appeared in the trial court.

Verdict was returned and judgment entered September 12, 1966. Thereafter, defendant filed a motion for new trial on September 21, 1966 and an amended motion for new trial on September 22, 1966, all within the time allowed for filing the motion for new trial. After hearing on this motion, the court entered the following order on November 4, 1966:

“Now on this day defendant’s Motion for a New Trial will, by the Court, be overruled if the plaintiff within ten (10) days from date files a remittitur of $1,-500.00 from that part of the verdict pertaining to punitive damages, and if said remittitur is not made, defendant’s Motion for a New Trial will be by the Court sustained.”

Thereafter, by letter dated November 8, 1966, the attorney for the plaintiff requested that the court hear argument on the propriety on this order because the motion for new trial did not raise the question of ex-cessiveness of the verdict but only raised the question that the verdict was based upon bias and prejudice; that in such circumstances the trial court was not authorized to grant a remittitur but was only authorized to overrule the motion or enter an outright grant of a new trial if it found bias and prejudice. The next entry in the transcript is a recital that: “(Thereafter, the Court heard arguments of counsel IN CHAMBERS, outside the record.)” The transcript next shows that on December 14, 1966, the trial court entered the following order:

“Now on this day defendant’s amended motion for new trial is by the Court sustained ‘because the verdict of the jury in favor of the plaintiff on plaintiff’s petition and defendant’s counterclaim is against the evidence’ (paragraph 3 of defendant’s motion for new trial) and because that part of the verdict pertaining to punitive damages is excessive by Fifteen Hundred ($1500.00) Dollars.”

No other proceedings in the trial court or orders thereof appear in the record except the filing of notice of appeal by plaintiff on December 15, 1966.

Defendant has suggested by handwritten amendment to his brief that this appeal is out of time. Even without such suggestion, it would be the duty of this court to determine the timeliness of the appeal because we can have no appellate jurisdiction unless the notice of appeal was filed within the time prescribed by Civil Rule 82.-04 V.A.M.R.

It will be noted that both orders of the trial court pertaining to the motion for new trial were entered within the ninety days during which the trial court can pass upon such motion. The order of November 4, 1966 overruled the motion for new trial on condition plaintiff file a remittitur within ten days. If such remittitur was not made within such time, the motion for new trial was sustained. Such an order has repeatedly been held to be complete in and of itself and requires nothing further. The effect of this order is to give the plaintiff an option. If he makes the remittitur within the time required, the motion for new trial is then overruled and the judgment becomes final as of that date. If the plaintiff fails to make remittitur, the motion for new trial is sustained on the date when plaintiff’s time for election expires. Where the remit-titur is made and consequently the motion for new trial is overruled and this occurs more than thirty days after the entry of the judgment, the judgment thereby becomes final and the trial court has no power to set aside or modify. See State ex rel. Templeion v. Seehorn, Mo.App., 208 S.W.2d 789, and Bank of Thayer v. Kuebler, 240 Mo.App. 776, 219 S.W.2d 297. When the plaintiff refuses to make remittitur as he did in the case at bar, the motion for new trial is sustained effective as of the date when the plaintiff’s right to elect expires. Such an order granting a new trial is an appealable order as is specifically provided in Section 512.020, R.S.Mo. 1959, V.A.M.S.

The alternative order for remitti-tur is complete in and of itself even though an entry made by the court after the time for election by the plaintiff has expired to show whether or not the plaintiff did, in fact, remit, is a proper and desirable order. However, such order merely reflects what transpired and amounts to nothing more than a correction of the judgment originally entered. It is not a new judgment. See Steuernagel v. St. Louis Public Service Co., 361 Mo. 1066, 238 S.W.2d 426, where the Supreme Court en Banc said:

“ * * * Thus the entry after remit-titur is a correction of the judgment originally entered and not actually a new judgment. The appealable judgment is the original judgment (as corrected of course) but still the appeal is from the original judgment, that is from what remains of it. * * * ”

Thus, in the normal course of events, the new trial would have been granted in the case at bar on November 14, 1966, which was the date on which plaintiff’s right to remit, and thereby retain the balance of his judgment, expired. If nothing further transpired, he would be required to file his notice of appeal within ten days thereafter or on or before November 24, 1966. Since the notice of appeal was not filed until December 15, 1966, it was not timely and conferred no appellate jurisdiction on this court pursuant to Civil Rule 82.04, V.A.M.R., unless this result is changed by the request contained in the letter from plaintiff’s attorney dated November 8, 1966 and the second order entered by the trial court on December 14, 1966. We must examine this second order.

As has been heretofore pointed out, when the trial court overrules a motion for a new trial, the judgment then becomes final and if such action occurs more than thirty days after entry of judgment, the trial court cannot thereafter disturb such final judgment. However, the same result does not follow where the trial court sustains the motion for new trial. In such situation, there is no final judgment and, in fact, no judgment, at that point. The case remains on the docket of the trial court for further proceedings, pursuant to the order for new trial. Such a situation was considered by our Supreme Court in Stutte v. Brodtrick, Mo., 259 S.W.2d 820. After careful consideration, the court concluded that the trial court could amend its original order granting a new trial within the ninety days it had to act on such motion.

Thus, we see that where a motion for a new trial is granted as it was in this case, the trial court can amend its original order within ninety days from the filing thereof, pursuant to Stutte v. Brodtrick, supra, or, as was pointed out in Steuernagel v. St. Louis Public Service Co., supra, the trial court can, after the period within which the plaintiff may elect to remit or not remit, enter its order completing the record and showing whether or not remittitur was filed. If the second order of the trial court in the case at bar entered on December 14, 1966 is considered as an amendment of its original order, such would relate back to the original order and the time for appeal would run from the date of the original order. Likewise, if the order of December 14,1966 be considered as merely reflecting the situation after the plaintiff declined to remit, it merely constitutes a correction of the original order and is not a new appealable order in and of itself. This situation was specifically considered by the Supreme Court in Steuernagel v. St. Louis Public Service Co., supra, and they held that such an order related back to the time of the original order and that the time for appeal is computed from such original order.

The two orders made by the trial court in the case at bar are not inconsistent. The first order overruled the motion for new trial on condition of remittitur. If plaintiff chose not to remit, then this order granted a new trial and this is what actually transpired. It has repeatedly been held that such an order for remittitur is the equivalent of granting a new trial on the ground that the verdict is against the weight of the evidence. See Stutte v. Brodtrick, supra, and the many cases cited therein. The second order in the case at bar set out that the new trial was granted because the verdict was against the evidence. This order is the same in substance as the first order which granted a new trial if the plaintiff failed to remit. Both amount to the granting of a new trial because the verdict is against the weight of the evidence.

In such circumstances, the proceedings in the trial court- had after the entry of the order of November 4, 1966, did not change the time for appeal. The notice of appeal was not filed within the time provided and, therefore, confers no appellate jurisdiction on this court. It therefore follows that the appeal must be and is hereby dismissed and the cause, remanded for new trial pursuant to the order of the trial court.

All concur.


text:
    John G. NEIHARDT, Plaintiff-Appellant, v. Gilbert E. KNIPMEYER, Defendant-Respondent.
    No. 24724.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      Spencer & Petri, Columbia, for appellant.
    Terence C. Porter, Welliver, Porter & Cleaveland, Columbia, for respondent.
   SPERRY, Commissioner.

Plaintiff sued defendant for damages which he suffered when he was injured while riding in a passenger automobile being operated by defendant. From a summary judgment in favor of defendant, plaintiff appeals.

Plaintiff pleaded that his injuries were suffered by reason of the negligence of defendant. The collision occurred within the intersection of highways 46 and 19, in the southeast part of the State of South Dakota, near Viborg. Defendant was proceeding north and became confused by reason of the highway-markings.. He slowed and stopped in order to determine which road to follow, when a car from the east struck his automobile, throwing plaintiff onto the pavement. Defendant paid a fine on a plea of guilty to improper driving.

Defendant pleaded that, “ * * * the collision alleged in plaintiff’s petition occurred in the State of South Dakota; that the law, statutory and common, of the State of South Dakota governs the rights and liabilities of the parties in this case; that at the time of the alleged collision and at all other times herein relevant there was in force and effect in the State of South Dakota statutory Section 44.0362, South Dakota Code, 1939, commonly known as the ‘Guest Statute’, which governs the rights and liabilities of the parties in this case; that said statute provides that an operator of a motor vehicle is not liable to a guest passenger for injuries sustained by said guest passenger in a motor vehicle unless said accident was caused by the wilful and wanton misconduct of said operator; that at the time of the alleged collision the plaintiff was a guest passenger in defendant’s automobile within the meaning of said South Dakota ‘Guest Statute’; that at the time of the alleged collision the defendant’s conduct was in no way wilful and wanton and said collision was not caused by any wilful or wanton misconduct on the part of the defendant within the meaning of said South Dakota 'Guest Statute’ and the plaintiff does not so allege; therefore, plaintiff has no cause of action for damages against the defendant”.

Section 44.0362, above mentioned provides as follows: “Guest in automobile can recover damages only for wilful and wanton misconduct. No person transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation shall have cause of action for damages against such owner or operator for injury, death, or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the owner or operator of such motor vehicle, and unless such wilful and wanton misconduct contributed to the injury, death, or loss for which the action is brought; and no person so transported shall have such cause of action if he has wilfully or by want of ordinary care brought the injury upon himself”.

Considering the petition, answer, defendant’s motion for summary judgment, plaintiff’s counter motion for summary judgment, motion in opposition to defendant’s motion for summary judgment, plaintiff’s reply to affidavits opposing motion for summary judgment, depositions of plaintiff and defendant, it appears 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. The only questions presented are questions of law. Defendant’s motion for summary judgment was ripe for decision. Civil Rule 74.04(c), V.A.M.R.; Spradlin’s Market, Inc. v. Springfield Newspapers, Inc., 398 S.W.2d 859, 862 (Mo.); Divilbiss, Summary Judgments in Missouri 32 Missouri Law Review, 29, 31. The questions of law involved were (1) whether the Guest Statute of South Dakota governs the disposition of this case, and (2) whether plaintiff was a guest of defendant within the meaning of the South Dakota Statute.

Plaintiff contends that defendant’s liability for his negligent conduct, if any, is governed by the law of Missouri, not that of South Dakota. This court applied the Guest Statute of Kansas in Dreher v. Sweigert, 409 S.W.2d 738 (Mo.App.). There, both plaintiff and defendant were citizens and residents of Missouri. Plaintiff, while a passenger in defendant’s automobile, was injured while travelling on a Kansas highway. We held that plaintiff was a guest, within the meaning of the Kansas statute, and that defendant was guilty of gross and wanton negligence as defined by the Supreme Court of Kansas, 1. c. 740, 741.

In Goodman v. McCulley, 367 S.W.2d 580, 582 (Mo.), both plaintiff and defendant were citizens and residents of Missouri. Plaintiff was injured in an automobile accident occurring in the State of Arkansas, while defendant was operating the vehicle. The case was tried, submitted and ruled on appeal, under the provisions of the Arkansas Guest Statute. Bartlett v. Green, 352 S.W.2d 17 (Mo. en banc.), was an automobile damage suit, tried under and ruled by the provisions of the Kansas Guest Statute. Plaintiff was a citizen of Oklahoma, defendant was a citizen of Missouri, and the casualty occurred in Kansas. O’Leary v. Illinois Terminal R.R. Co., 299 S.W.2d 873, 879 (Mo. en banc.), was a case where plaintiff had suffered personal injuries at a railroad crossing. The question of plaintiff’s failure to exercise due care when about to go on a railroad crossing was held to be governed by the law of Illinois.

The South Dakota Guest Statute is controlling in this case and we will be governed by the decisions of the South Dakota Supreme Court in applying it. We have been cited to no Missouri decision indicating that tort actions tried in Missouri are not governed by the law of the state where the tort occurred. However, Missouri procedure is followed.

The remaining question is whether plaintiff was a guest of defendant, within the meaning of the statute, at the time the collision occurred. The facts are not in dispute. That determination will be made according to the decisions of the Supreme Court of South Dakota.

The plaintiff and defendant were friends for many years. They were widely recognized authorities in their respective fields. They had mutual intellectual and social interests which drew them together. They had mutual friends and mutual interests in their study of American History and Western Americana. They planned a trip to South Dakota and to the Hudson’s Bay country of Canada. The general plans therefor were made in Columbia, Missouri, at the home of plaintiff. Plaintiff testified to the effect that he had certain professional duties to perform in Nebraska (lectures) and that they agreed that afterward, defendant should meet plaintiff at the Blackstone Hotel, in Omaha, Nebraska, from which place they would begin their trip. At the time the original plans were being made Dr. Neihardt said that he stated to defendant that he would bear his half of the general expenses and that defendant said: “Oh, no, no, I wouldn’t have that”; that plaintiff thought the matter would be settled later but that the accident occurred before anything was agreed upon; that each party paid for his own lodging and meals; that defendant drove; that he was a good safe driver; that plaintiff did not notice any improper acts by defendant in connection with the operation of the automobile; that, as the car entered the intersection where the collision occurred, plaintiff saw a car coming at a “good” speed, from the right, at a distance of about one hundred fifty feet; that, as it approached, witness thought the driver might be trying to stop; that the car swerved and came straight into the right rear of the Knipmeyer vehicle; that plaintiff was thrown to the pavement and lost consciousness; that he was taken to the hospital at Viborg, South Dakota, where he remained and was treated for six days; that he was then taken to the home of a friend, at Vermillion, South Dakota, where he spent six days in bed; that he really did not know what happened in the intersection; that he had not paid anything to defendant for his transportation but that he intended to do so.

In 10 A.L.R.2d 1351, Sec. 5, par. 1360, it is said: “The courts appear to be agreed that the mere companionship of the occupant of an automobile, or the pleasure derived from his company, is not ‘payment’ sufficient to change the occupant’s status from guest to passenger”. The author cites Schiltz v. Picton, 66 S.D. 301, 282 N.W. 519, at page 520, where the court said: “However, a mere incidental or gratuitous, contribution to expenses will not constitute ‘payment’ within an automobile guest statute entitling the occupant of an automobile to the exercise of ordinary care for his safety”.

In Peterson v. Snell, 80 S.D. 496, 127 N.W.2d 142, at page 144 (1964), the Supreme Court of South Dakota said: “The nature of the benefit one must confer on a driver in order to become a passenger was further fully considered in Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266 in which the court said [that] it must |⅛ ,‘sufficiently real, tangible, and substantial to serve as the inducing cause of the transportation, and to operate to completely overshadow' any considerations of mere hospitality-growing out of friendship or relationship’. This rule has been consistently followed and applied in numerous subsequent cases. See Peters v. Hoisington, 72 S.D. 542, 37 N.W.2d 410; Antonen v. Swanson, 74 S.D. 1, 48 N.W.2d 161, 28 A.L.R.2d 1; Gunderson v. Sopiwnik, 75 S.D. 402, 66 N.W.2d 510; Tennyson v. Kern, 76 S.D. 136, 74 N.W.2d 316; Kleinhesselink v. Porterfield, 76 S.D. 577, 83 N.W.2d 191; and Cluts v. Peterson, S.D., 113 N.W.2d 273. Therefore, the mere fact a rider and a driver of a motor vehicle have a common, interest or purpose in making a trip is not alone sufficient benefit to the driver to constitute payment of compensation under our guest statute”. (Emphasis ours).

Under the settled law of South Dakota, and under the undisputed facts in this case, plaintiff was a guest of defendant as a matter of law. Since plaintiff does not contend that the collision which caused his injuries was “caused by the wilful and wanton misconduct of the owner or operator” of the motor vehicle, the trial court properly rendered summary judgment against plaintiff.

The judgment is affirmed.

MAÚGHMER, C., concurs.

PER CURIAM:

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

All concur.


author: BROAD DUS, Special Commissioner.

text:
    Scott GOLDEN et al., Appellants, v. ST. JOSEPH MILK PRODUCERS’ ASSOCIATION, a Corporation, Respondent.
    No. 24570.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1967.

      Robt. H. Kendrick, Kansas City, for appellants.
    R. A. Brown, St. Joseph, for respondent.
   BROAD DUS, Special Commissioner.

This is an action for equitable relief brought by stockholders or members of the St. Joseph Milk Producers Association. Plaintiffs’ petition prayed that defendant Association be dissolved and that a receiver be appointed therefor. Findings of fact were made by the trial court and judgment entered in favor of defendant from which judgment plaintiffs have appealed.

The action was brought by approximately thirty members of the defendant corporation. It is admitted in the pleadings that the defendant was organized under the “NonProfit Cooperation Marketing Law,” now known as Chapter 274, of the Revised Statutes of Missouri, 1959, V.A.M.S., and that the corporation is governed by the general corporation code, except where the same is inconsistent with Chapter 274.

The defendant corporation is composed of some 290 members and is engaged in the business of a milk marketing cooperative. Milk produced by members is picked up from their farms by independant contractors using bulk over-the-road tanks owned by the Association. The milk is then brought to the St. Joseph Market area and delivered to the dairies, who are commonly referred to as “producers” and the operators of the trucks picking up the milk as “handlers.”

The charges made by plaintiffs are contained in paragraph 5 of their petition, which reads as follows:

“The said Corporation is under the control of one Carl Dixon, Secretary-Manager of said Corporation, who individually and in concert with the directors of the said Corporation have performed acts illegal, oppressive and fraudulent, and have misapplied and wasted the corporate assets; that the said acts of the Secretary-Manager and the directors of said Corporation are in deprivation of the rights of plaintiffs as minority members of the said Corporation and have worked both beneficial and financial injury and damage upon the plaintiffs.”

A general discussion of the law pertaining to an action of this kind will be found in 19 Am.Jur.2d at page 70, paragraph 533. It is stated that courts of equity will not, as a general rule, exercise jurisdiction to control or interfere in the management of the corporate or internal affairs of the corporation. The court has no power to interpose its authority for the purpose of adjusting controversies relative to the proper mode of conducting the corporate business. Errors of judgment on the part of the officers are not grounds for the interference of equity. For the court to intervene there must be actual or threatened acts which are ultra vires, fraudulent, and injurious, and are an abusive power, and are acts of oppression on the part of the Corporation or of its officers.

It is well settled that the courts should proceed with great caution in appointing receivers for corporations, and will do so only to prevent irreparable injury or to prevent justice from being defeated and only when there is no other adequate remedy. Niedringhaus v. William F. Niedringhaus Investment Company, 329 Mo. 84, 46 S.W.2d 828 1. c. 836; Handlan v. Handlan, 360 Mo. 1150, 232 S.W.2d 944.

Absent fraud a court will not substitute its judgment as to whether the acts of the corporation represent good business policy. Putman v. Juvenile Shoe Corporation, 307 Mo. 74, 269 S.W. 593, 40 A.L.R. 1412.

Plaintiffs state their first point as follows :

“The court erred in entering judgment in favor of defendant and against plaintiffs in that the undisputed evidence showed that the defendant established a ‘re-blending fund’ from monies due plaintiffs in violation of the respective contracts of plaintiffs as members of defendant association, which action was illegal, fraudulent and oppressive to plaintiffs, and constituted a misapplication of members’ funds.”

The testimony about the “re-blending fund” is voluminous and repetitious. It may be summarized in the following manner. Under the order of the federal market administrator, defendant must pay its producers a specified price. At times more milk is brought in by the producers on the local market than can be handled by the local market. This means that some of that milk must be dumped as a total loss or must be sold elsewhere. When it is sold elsewhere, it is sold at a lower price. In other words, it is sold at a price less than that which the defendant must pay the producer. It is at this point that the “re-blending fund” comes in, and it was established to take care of this precise situation and to make it possible for all producers to be paid the same price so that no one producer would suffer a hardship loss.

The testimony of Mr. Dixon relative to this fund is as follows: “Q. Do you have a fund called the re-blending fund ? A. Yes, there is a re-blending fund. Q. Would you explain the re-blending fund? A. That re-blending fund is set aside to move the milk out of the market at times when we have too much milk and from the price as quoted to us by the market administrator a re-blending fund is determined if necessary to move that milk to a market where it is saleable. Q. In other words, if your members are producing too much milk for the amount needed by the handlers here on the St.'Joseph market, then you take it to a different area and sell it, is that right? A. Yes. Q. And the cost of transporting the milk to this different area comes out of this re-blending fund? A. That is correct.”

Plaintiffs make the argument that the membership agreement did not provide for the establishment of this fund.

Paragraph 6 of the membership contract specifically says that the Board of Directors may prescribe rules and regulations relative to the production and handling, testing, delivering, hauling zones and charges for services of others in the marketing of milk or dairy products produced by members and the member agrees to be bound by and comply with such rules and regulations. It further says that the Board of Directors shall have the right to adopt and enter into with others from time to time a marketing plan or plans for the marketing of milk or dairy products of member and other members of the association containing such provisions in relation to the production of milk or dairy products or the proceeds of the sale thereof, or equalizing cost of different distributors or price to different producers, or providing through variations in price incentives to producers to maintain a steady supply to meet market demands. It is further provided that the directors can do whatever is usual or customary in such marketing plans as may be deemed advisable by the Board, and the member agrees faithfully and punctually to comply with such plans.

Section 3 of Article I of the By-Laws,, says that the corporation is formed to promote the general welfare of its members and the business of dairying and to have and to exercise all the powers necessary and proper to carry into effect the purposes for which the corporation is formed and to do-any and all things incident to the above purposes. Section I of Article 4 of the ByLaws states that the corporate powers of the association shall be exercised and its business managed by the Board of Directors.

In the Agricultural Adjustment Act, Title 7, Paragraph 608c, Sub-paragraph (S) (F), it is specifically provided as follows r “Nothing contained in this subsection is intended or shall be construed to prevent a cooperative marketing association qualified under the provisions of sections 291 and 292 of this title, engaged in making collective sales or marketing of milk or its products for the producers thereof, from blending the net proceeds of all of its sales in all markets in all use classifications and making distribution thereof to its producers in accordance with the contract between the association and its producers.”

The contract thus specifically provided there should be equalization to take care of the situation, the By-Laws gave the Board of Directors the right to run the business and the federal law recognized the necessity of blending and legitimized it. This re-blending was for the benefit of all the producers and was neither fraudulent, illegal nor oppressive.

The trial court was correct in its finding that: “The re-blending price or charge was put into effect at a regular meeting of the Board of Directors and its objective is to make it possible for all producers to be paid the same price for their milk. The ‘re-blending fund’ was established under the order of the Federal Market Administrator who also checked this fund each month. No complaint was made by any of the plaintiffs to this action of the Board of Directors until the institution of this suit.”

Plaintiffs next contend that: “The court erred in entering judgment in favor of defendant in that the undisputed evidence showed that the defendant was guilty of fraud and oppressive mismanagement in failing and refusing to account to its members, including these plaintiffs, as to individual transactions between the defendant and its members and further, in violation of its by-laws, as to the general business of the corporation.”

Here plaintiffs have commingled argument on several diverse matters. First they complain that a proposal was voted on and passed by the membership directing that reports be furnished to each member concerning the action of the Board of Directors at each meeting. They admit that this was done for a limited time, but was stopped, and no such reports have subsequently been furnished. The testimony concerning this matter shows that at an annual membership meeting a motion was passed that such reports be sent members. This was not a board meeting and at a regular board meeting the board directed that for the coming year these reports be sent out. This was done. Apparently no one was particularly interested and the practice was discontinued. No requests for these reports were made by any of the members thereafter. The complaint is wholly without merit.

Plaintiffs’ next argument under the same heading is that the directors have not followed the By-Laws, in that they did not cause to be compiled each month a full and accurate statement of the business and conditions of the association, etc. There is not one word of testimony that these records were not kept, and, on the contrary, Mr. Dixon testified that they were. He said that any information any member wanted was always available at the office. There is not one word of testimony that any member ever inquired for these reports.

Plaintiff next contends that the “re-blending fund” was not accounted for to the membership at large. The testimony shows that the market administrator checked this fund every month, so obviously the records were available if anybody sought for them. As to the cases cited by plaintiffs, the broad rules announced therein cannot be denied, but they have no application here. All records any member wanted to see were available if the member simply asked to look at them.

Plaintiffs next turn to an argument concerning the sale of tanks to members at cost plus five per cent. The testimony on this is also quite voluminous. The facts are that defendant decided to help its members by offering to obtain these storage tanks for them. No one knew what the installation cost would be and quite significantly, no one knew what maintenance would be for the one year following the date of purchase, and this was to be included in the price. Maintenance was an item which defendant assumed. The directors authorized Mr. Dixon to offer these tanks to its members at cost plus five per cent. The facts are that the members wanted a set price and did not want to guess about it. The five percent offer was not accepted by anyone, so Mr. Dixon gave the members a set price which was simply a guess. In some instances it was high, and in some, it was low. No member objected because they were getting a set price in the manner in which they wanted it. This was a managerial function which Mr. Dixon had a right to perform. He first made an offer that was ineffective, and then met the requests of the members. There was no objection, the action was neither illegal, oppressive nor fraudulent. No case is cited to the effect that this was an improper act and the finding of the trial judge that it was correct was eminently proper.

Plaintiffs last argument is that the court erred in entering judgment for defendant “in that the undisputed evidence showed that the defendant was guilty of gross mismanagement of the assets of the Association and of these Plaintiffs’ funds.”

Here again a number of charges are commingled under one point. It is first said that the course of action pursued by defendant was wholly opposed to 'the interest of the whole corporate entity and the case of Bates v. Werries, 198 Mo.App. 209, 199 S.W. 758, is cited. There is no similarity between that case and the present case and there is no legal pronouncement in the Bates case which applies to the instant case. That case had to do with an out and out fraud whereby majority stockholders tried to gain control of the company to the detriment of minority stockholders, and that is not the situation here.

Next the complaint is made that the bookkeeping has been of poor quality. At the time the case was tried an audit had been made by Gasper and Taylor, very competent CPA’s, and testimony was offered from a representative of that firm, namely, Harold Thomas, and his testimony completely exonerated the defendant. The auditor stated that all records were available, everything could be reconciled, everything could be accounted for, and there were no irregularities of any kind or character. The auditor said that the books were kept in the same manner as many farm organization books were kept. The testimony further showed that new books had been set up under the guidance of the auditors and that they were being kept regularly and competently.

Next plaintiffs turn to the purchase by defendant of three plastic over-the-road bulk milk tanks to be used by haulers and they claim, in a vague way, that these purchases were improper. The evidence shows that when defendant first went into business it decided to purchase tanks which it would in turn lease to the haulers. The haulers would pay a sufficient price so that the corporation would be entirely repaid within nine years. When these purchases were first made, defendant inspected a number of tanks, took bids, and finally bought certain tanks. Thereafter, it bought certain plastic tanks without bids because the haulers asked for those specific tanks. This was a discretionary act by the Board of Directors and they had a perfect right to exercise their discretion. There is no testimony that one cent more was paid for these tanks than was proper, or that the tanks purchased were not adequate for the purpose for which they were designed. The tanks purchased were the ones requested by the haulers and, since the haulers were paying the price, they had a right to request the kind of tanks they wanted. There was nothing illegal or fraudulent about these acts.

Lastly, plaintiffs complain because defendant has investments in the nature of Certificates of Deposit at the Park Bank. The evidence shows that the Park Bank is located less than a block from defendant’s place of business and was the sole and regular bank handling defendant’s banking business. Defendant bought its Certificates of Deposit there in the exercise of its discretion and it had a right to do that. The inference is attempted to be drawn that because Mr. Dixon at a later time was an officer of the Bank, this was an improper transaction. There is not one word of testimony showing- that the Bank gained any advantage of any kind or character, and the facts are, that at the time these transactions began, Mr. Dixon was not on the Bank Board. Again, there is nothing about these transactions which was illegal, oppressive or fraudulent in any sense, and no one has ever objected to them. The ruling of the trial court on this particular question was clearly proper and plaintiffs cite no authority to the effect that it was not.

The judgment was for the right party and should be affirmed. Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BROADDUS, Special Commissioner, is hereby adopted as the opinion of the Court, and the judgment is affirmed.