author: DOERNER, Commissioner.

text:
    STATE of Missouri ex rel. Ann Marie McGARRY, Thomas J. McGarry and Patrick J. Hamill, Relators, v. Robert J. KIRKWOOD, Judge of the Circuit Court of the City of St. Louis, Div. No. 2 and His Successor as Judge of said Division No. 2, Respondent.
    No. 32806.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1967.

      Donald V. Fraser, Jr., Susman, Wilier, Rimmel & Elbert, Harold I. Elbert, St. Louis, for relators.
    W. W. Sleater, Suelthaus & Krueger, St. Louis, for respondent.
   DOERNER, Commissioner.

This is an original proceeding in mandamus to compel the respondent or his successor to set aside an order dismissing relators’ motions for the appointment of a guardian ad litem for one of the defendants alleged to be incompetent and to hear said motions on their merits. Since the respondent dismissed the motions solely on the ground that as a matter of law the court had no jurisdiction to appoint a guardian ad litem, and as the facts are un-controverted, we issued our alternative writ. State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 857; State ex rel. Reis v. Nangle, Mo.App., 349 S.W. 2d 508.

It appears from the pleadings and exhibits before us that relator Patrick J. Hamill instituted the action below against John N. Hamill and Mary A. Hamill, his brother and sister, to have 28 shares of the common stock of the P. J. Hamill Transfer Co., presently registered in their names, divided equally between relator and his seven living brothers and sisters, (including John and Mary), and the sole legatee of a deceased sister. In his petition Patrick alleged that said 28 shares, owned by his mother and father at the time of their deaths, descended to their nine children by operation of law in the absence of administration on his parents’ estates. The suit was instituted as a class action on behalf of Patrick and those similarly situated but not joined. After their motion to dismiss was overruled, defendants John, Mary and the Transfer Company filed a joint answer in which they pleaded that all of the brothers and sisters, including Patrick, had agreed following their mother’s death that the shares standing in her name should be given to their father; and denied that afterward, at the time their father died, he was the owner of any shares. On the same day they filed their .answers the defendants orally moved to join the other living brother and sisters, which motion the court sustained and procéss was served upon them.

Thereafter one brother, Daniel T. Hamill, entered his appearance, adopted plaintiff’s petition, and aligned himself with Patrick. One sister, Ann Marie McGarry, (another relator here) filed a motion to require the defendants to make their answer more definite and certain. After obtaining time to plead for one sister, Alice M. M_, the same counsel who represented John, Mary and the Transfer Company filed separate answers on behalf of the three remaining sisters, Virginia Wehner, Loretto Woods, and Alice. By all of such answers the matters pleaded in the joint answer of John, Mary and the Transfer Company were adopted, and it was further stated that the sister answering did not wish to become a party to the action and that Patrick did not represent her nor sue as her representative. The third relator here, Thomas J. McGarry, who is the sole legatee under the will of the deceased sister, Genevieve Hamill, filed an ex parte motion to intervene, which the court sustained and granted him 60 days within which to plead.

After Alice had been granted time to plead but before her answer was filed Patrick filed a motion for the appointment of a guardian ad litem for Alice. Subsequently, after her answer was filed, similar separate motions were filed by Thomas and by Ann Marie. While the allegations in the three motions are not the same, they may be fairly summarized as stating that Alice is afflicted with a degenerative brain disease which has caused premature and advanced senility; that she has been hospitalized for two stated periods, during which medical authorities determined her medical prognosis to be completely negative; that by reason of her condition she is not able to comprehend the issues nor understand her rights in the matter before the court; that in addition to her mental incapacity she lacks physical capacity to sign her name and could not have authorized anyone to represent her; that her interest, which may exceed $35,000, is diametrically opposed to those of John and Mary; that she has never been adjudicated as incompetent to handle her affairs; and that her husband stated that he would not do anything concerning his wife’s interest, but rather allow a judgment to be entered against her by default. In addition to their motions, Thomas and Ann Marie filed written interrogatories in which they propounded various questions to John and Mary concerning the latter’s knowledge and belief as to the physical and mental health of Alice, whether they were present when she is alleged to have signed her answer, and similar inquiries. John and Mary filed objections to such interrogatories in which they pleaded that the court was without jurisdiction to entertain any matter pertaining to the questions asked them. On October 28, 1966 the objections of John and Mary to both sets of interrogatories were presented and heard. Their objections to the interrogatories of Thomas J. McGarry were sustained and those to the interrogatories of Ann Marie taken under advisement by the court, with leave to the parties to file successive briefs. Although the three separate motions for the appointment of a guardian had never been called up and heard or submitted, the respondent, on December 7, 1966, entered the following order:

“ ‘In the instant case Thomas J. Mc-Garry has filed a motion for the appointment of a guardian ad litem for defendant Alice M. M_, nee Hamill. There is no evidence before the Court that Alice M. M_is incompetent; the statement of attorney is not sufficient to establish her incompetent. If she is incompetent it would be necessary to establish this fact in the county where she lives (475.035, R.S.Mo. 1959). So, therefore, if a guardian is to be appointed the venue is in St. Louis County.
“ ‘The Court, therefore, denies the motion on the grounds it has no jurisdiction.’ ”

While the relators’ separate motions for the appointment of a guardian ad litem were never formally submitted to respondent, the parties on both sides treat the foregoing order as the denial and overruling of all such motions, and we shall do likewise.

Of course, there was no evidence before the court concerning the competency of Alice because the separate motions had never been called up for hearing and an opportunity afforded relators to present such evidence as they might be able to produce on that subject. However, the basis for the respondent’s dismissal of the relators’ motions, as shown by his order, was his opinion that he could not entertain such motions because he had no jurisdiction to appoint a guardian ad litem for Alice even though she was incompetent, and that if she was incompetent it was necessary to have her adjudicated and a guardian appointed for her in accordance with our Probate Code, § 475.010 et seq., RSMo 1959, V.A.M.S. We cannot agree with the conclusion of the learned respondent that under the circumstances which prevailed in the pending action he was without jurisdiction to entertain the motions for the appointment of a guardian ad litem for Alice. As early as Bensieck v. Cook, 110 Mo. 173, 19 S.W. 642, decided in 1892, the Supreme Court approved the action of the trial court in appointing a guardian ad litem for a husband whose wife, in her answer to a suit in ejectment, alleged that he was insane. That view was affirmed in Graves v. Graves, 255 Mo. 468, 164 S.W. 496, 501, where it was said that if no guardian ad litem was appointed for an incompetent defendant then he “ * * * never had his day in court in the full sense of the term, and a- judgment rendered against him, after .a suggestion of lunacy as here, would smack of legal, if not actual, fraud. * * * ” Hence the law is, as recently stated in In re M_, Mo.App., 393 S.W.2d 109, 115, that “ * * if it affirmatively appears that a party to an action, not in ward, is mentally ill or incompetent, then the court should inquire into his mental condition for the purpose of the particular litigation, so a guardian ad litem or other representative may be appointed to protect his interests. * * * ” action pending before respondent is one in equity, and “ * * * At common law the conscience of a court of chancery could be invoked in the interest of the insane.” Tracy v. Sluggett, 360 Mo. 1120, 232 S.W.2d 926, 930. In view of the allegations in relators’ motions regarding Alice’s lack of mental capacity and the claimed refusal of her natural protector, her husband, to do anything towards the defense and preservation of her interest, we are firmly of the opinion that the respondent as chancellor not only had jurisdiction to hear and determine such motions on their merits, but that under the authorities cited it was his positive duty to do so.

It does not necessarily follow, however, that relators are therefore entitled to our peremptory writ of mandamus. A writ of mandamus is a hard and fast unreasoning writ, and is reserved for extraordinary emergencies. State on inf. Barker ex rel. Kansas City v. Kansas City Gas Co., 254 Mo. 515, 163 S.W. 854; State ex rel. Horton v. Bourke, 344 Mo. 826, 129 S.W.2d 866. It is not a writ of right, and its issuance is largely discretionary with the court in each particular case. State ex rel. St. Louis Public Service Co. v. McMullan, Mo., 297 S.W.2d 431, 62 A.L.R.2d 1281; Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845. Hence “A litigant asking relief by mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing claimed. He must show himself possessed of a clear and legal right to the remedy. * * ” State ex rel. Porter v. Hudson, 226 Mo. 239, 126 S.W. 733, 740; State ex rel. Phillip v. Public School Retirement System of City of St. Louis, 364 Mo. 395, 262 S.W.2d 569, 574; and a relator must also show that he has a beneficial interest to be subserved by the suit “ * * * and is the party who has suffered injury by the acts of the respondent or his refusal to act. * * * ” State ex rel. Jacobsmeyer v. Thatcher, 338 Mo. 622, 92 S.W.2d 640, 642; State ex rel. Buder v. Brand, 305 Mo. 321, 265 S.W. 989.

Relators rest their right to mandamus on the ground that if a hearing is not held on whether or not Alice is incompetent then at some future time a judgment entered in the action below might be set aside because of her incompetency. But in view of the situation which exists in that action it is clear that any judgment obtained by relators could not be successfully attacked by Alice on such grounds. For what re-lators seek is a judgment and-decree declaring that Patrick and each of the other eight children of Catherine and Patrick J. Hamill, upon their deaths, became by operation of law the owner of 3⅛ shares of stock in the Transfer Company. If rela-tors are successful it necessarily follows that Alice will also prevail, so that even if incompetent there will be no legal basis or reason to set aside a judgment in which she will have obtained all that is due her. On the other hand, if relators do not obtain the judgment and decree they seek then there will be no judgment in their favor which Alice may attack on the ground of incompetency. In short, relators’ interests are consistent with and not adverse to those of Alice.

It is true, of course, that the situation will be entirely different if John and Mary prevail in the action pending below. For by a judgment in their favor Alice’s interest will be adversely affected, and if she is in fact incompetent any judgment rendered against her without the appointment of a guardian ad litem “ * * * would smack of legal, if not actual, fraud. * * *” Graves v. Graves, 255 Mo. 468, 164 S.W. 496, SOI. But the possibility of such a situation arising does not entitle relators to mandamus, for if it materializes they will not be injured thereby.

We conclude, therefore, that our alternative writ was improvidently issued and should be quashed. It is so ordered.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court. Accordingly, the alternative writ is quashed.

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

      . Counsel for respondent have appended the following to their brief: “It is requested that the full name of Alice M. M_ not appear in any reported opinion of this matter.”


source: Caselaw Access Project

author: BRADY, Commissioner.

license: Public Domain

text:
    CORRIGAN COMPANY MECHANICAL CONTRACTORS, INC., a Corporation, Plaintiff-Respondent, v. Morris I. FLEISCHER, Alfred J. Fleischer, John P. McHugh and Minnie R. Fleischer, co-partners, d/b/a Fleischer-Seeger Construction Company, Defendants-Appellants.
    No. 32620.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1967.

      John Grossman, St. Louis, for defendants-appellants.
    Anderson, Gilbert, Wolfort, Allen & Bierman, Norris H. Allen, St. Louis, for plaintiff-respondent.
   BRADY, Commissioner.

Judgment in this jury-waived action was rendered in favor of plaintiff and against defendants on plaintiff’s petition and in favor of plaintiff and against defendants on defendants’ counterclaim. Plaintiff is a corporation and will be herein referred to by its designation in the trial court. Defendants are partners doing business as “Fleischer-Seeger Construction Company” and will be referred to as “Fleischer-Seeger” or as defendants. Defendants have perfected their appeal to this court.

The pleadings will help delineate the issues here involved. Plaintiff entered into a contract with defendants under the terms of which it agreed to furnish labor and materials, and do certain work in connection with defendants’ contract to construct a power plant at Chamois, Missouri. Plaintiff had been paid for such work except for $4,900.00 which defendants refused to pay to plaintiff. In the instant case plaintiff seeks to recover this $4,900.00 with interest and costs. Defendants’ answer was in the form of a general denial and they also filed a counterclaim in the nature of a setoff alleging there was due them from plaintiff the sum of $4,900.00 for services, material, labor, etc., necessary to complete work which they had performed as plaintiff’s subcontractor in connection with the conversion of three boiler furnaces at the Carr Square Village project, a job for which plaintiff was prime contractor for the St. Louis Housing Authority. Defendants prayed judgment on their counterclaim for $4,900.00 with interest and costs and that in the event recovery was had by plaintiff on its petition defendants’ judgment on its counterclaim be set off. Plaintiff’s answer to the counterclaim admitted the performance of the work on the St. Louis project by defendants and the demand and refusal to pay the $4,900.00. The answer also set up the defense the contract under which both plaintiff and defendants were working on the Carr Square Village project contained certain completion dates and provided for penalties for failure to comply with such dates; that knowing of such penalties defendants failed to reasonably carry on the work which they undertook to do and so unreasonably and belatedly carried on such work as to cause breaches of said contract with respect to the completion dates; that as a direct and proximate result of defendants’ activities penalties accrued under the contract which after all allowances resulted in a reasonable and proper charge by the St. Louis Housing Authority against plaintiff in the amount of $4,900.00; that this sum was retained and not paid to plaintiff by the Housing Authority under the contract; and that plaintiff was damaged by the failure of defendant to reasonably do its work in accordance with the contract by that amount. In their reply defendants denied they failed to reasonably carry on the work or cause a breach of the contract; stated that any penalties assessed against plaintiff were improper and arbitrary; denied that they orally or in writing agreed and assumed to pay for any penalties; and stated that any delays were caused by conditions over which they had no control.

The parties filed a stipulation prior to the trial by which they agreed the amount of $4,900.00 was due the plaintiff under the contract sued on in the petition; that defendants agreed to do the work on the St. Louis Housing Authority project and “to complete in accordance with the Plans and Specifications * * * ” the work involved in connection with the installation of these boilers; that defendants did the work mentioned; “That subject to its admissibility and competency, it is agreed that a multitude of delays ensued with respect to the finishing of the conversion of the coal fired boilers * * * ”; and that the contract provides for certain completion dates and for liquidated damages in specified amounts in the event these dates were not met. The dates for completion and the amounts provided as liquidated damages as stipulated are the same as stated in the contract which was an exhibit and which will be set out more fully later herein. It was further stipulated extensions were applied for and some of them granted without charge by the Housing Authority which under the contract charged plaintiff a total of $4,900.00 as liquidated damages on account of delay; that plaintiff has paid defendants all amounts due excepting this sum; and that “ * * * the dispute in this law suit concerns whether or not defendants, under the law and the facts, owe plaintiff $4900.00 on account of said alleged delay and the charge made against plaintiff by the St. Louis Housing Authority, * *

The specifications for the Carr Square Village project were admitted into evidence over defendants’ objection. There are many provisions of this contract which would need to be stated in this opinion in order to rule upon all the allegations of error raised by defendants. However, it is our view that defendants’ allegation of error with respect to the damages constituting a penalty is determinative of this appeal and we will confine our résumé of the contract and other pertinent evidence to that bearing upon this issue. In so doing it is apparent that we assume arguendo plaintiff’s strongest case; i. e., it is correct as to the admissibility of Exhibit “B”. Our ruling upon that point is then unnecessary to the disposition of this appeal and renders superfluous a summarization of the voluminous provisions of this exhibit which constitute the contract between plaintiff and the Housing Authority and which plaintiff contends also bind the defendants.

The evidence showed that prior to the 15th day of July, 1958, the Housing Authority requested bids for the purpose of converting three (3) furnaces in the Carr Square Village project from coal firing furnaces to combination oil and gas fired burners. The defendants as subcontractors submitted their bid for $30,800.00 for a portion of the work to the plaintiff as prime contractor. The bids were opened on July 15, 1958, and plaintiff was advised it was the successful bidder on that same day. However, plaintiff did not sign its contract with the Housing Authority until August 13th. The Housing Authority sent plaintiff a “Notice to Proceed” on August 27, 1958, the terms of which directed plaintiff to commence work on September 2, 1958. On August 28, 1958, plaintiff wrote the Housing Authority requesting extension of contract completion time stating the bid was submitted to the Housing Authority on July 15, 1958, but due to “delays beyond our control, we did not receive notice to proceed until August 28, 1958”, and, “We do not believe it is possible to have the two (2) boilers in operation by October 15, 1958, because of the above mentioned delay.” The Housing Authority responded by plaintiff’s Exhibit “E” dated September 2, 1958, which letter stated it was unable to grant an extension of contract time since the award of the contract and the “Notice to Proceed” were issued in accordance with the contract documents but stated: “However, if in the future you experience any delays beyond your control in carrying out the contract work, please notify us immediately in writing of the delay and we will consider a contract time extension.” On September 8, 1958 the plaintiff wrote to the defendants (plaintiff’s Exhibit “F”) stating that plaintiff had received a letter from the Housing Authority rejecting its claim for additional time extension, and further stating it was important to keep a daily record of progress and delays, as “we are all subject to $200.00 per day liquidated damages.” This letter was received by defendants on September 9, 1958, upon which date defendants replied (plaintiff’s Exhibit “G”) acknowledging receipt and stating that “Since this job was so late in getting started after the time of bidding, we cannot agree to pay any liquidated damages unless we, ourselves, delay the job unnecessarily.”

On October 15, 1958 plaintiff wrote to defendants (defendants’ Exhibit 4) stating the contract called for Boilers 1 and 2 to be completed on October 15th and that Mr. McHugh, one of the partners in Fleischer-Seeger had informed plaintiff the first boiler would not be finished until October 17th. The letter continued: “After you have completed the brickwork it will take approximately two (2) weeks for us to complete the burner installation, and when the new installation on the first boiler is approved you can start on the second boiler. At your present rate of progress the second boiler will not be ready for operation until January 1, 1959. As you are well aware, the contract has a liquidated damaged clause holding the Contractor liable for any delays in completion. It is very important that you expend every effort to expedite the completion of your work, as you are subject to the liquidated damages as our Sub-Contractor.”

On that same day defendants wrote plaintiff (plaintiff’s Exhibit “H”) stating defendants “received your order on August 29, 1958 and planned to start work September 2. We were then advised that we had to get our actual insurance policies to the Housing Authority by way of your office and that until they were approved we could not begin work. This was done and work began September 4. We anticipated completion of our work Friday, October 17 (on the No. 1 Boiler) which represents about six and one-half calendar weeks for the unit. The nature of the underpinning and replacement of the side walls of the boilers was found to be (is) such that in the interests of safety no more men could be practically used than the number we employed. The side walls had to be removed in sections and each section rebuilt before the next section was removed. Because of the safety factor involved, we believe the progress of the furnace work was in keeping with good, planned programming. Had we been able to start on August 4, which we expected would be the situation at the time the job was bid on July 15, the first boiler would have been completed by now and the second boiler would have been fast approaching completion by the latter part of October. In spite of the Specification statement on Page H-2, it is also probable that had construction work begun on August 4 the Housing Authority might have permitted both boilers to go forward at once, which would have permitted the first two units to be complete by the middle of September and the third boiler by the end of October.” The statement referred to required two of these three boilers to be “on the line”; i. e., in working order at all times.

On October 16, 1958, Fleischer-Seeger wrote plaintiff referring to their letters of October 15 as having “crossed” in the mails and stating: “In no way do we agree that we are subject to liquidated damages as your subcontractor on this project.”

It appeared from the evidence Boiler No. 1 was complete on November 4, 1958, but defendants were not given the okay to go ahead on Boiler No. 2 until November 18th, and that the delay was caused by confusion between the Housing Authority, plaintiff and the mechanical engineer. Boiler-2 was commenced on November 18th and completed on January 15, 1959. Plaintiff notified defendants on February 15th to commence work on Boiler 3 on February 9th and Boiler 3 was bricked up on April 17th.

The provisions of the contract between the Housing Authority and plaintiff relating to the time for completion of this work and liquidated damages for failure to comply with such dates are found at Page 46 and read as follows: “2. TIME FOR COMPLETION a. The Contractor shall commence work at the time stipulated in the Notice to Proceed to the Contractor and shall complete the conversion work so that boilers No. 1 and No. 2 will be in operation on oil and gas fuels on or before October 15, 1958. b. Boiler No. 3 shall be complete and ready for operation on oil and gas fuels on or before December 15, 1958. 3 LIQUIDATED DAMAGES As actual damages for any delay in completion are impossible of determination, the Contractor and his sureties shall be liable for and pay to the Local Authority the sum of $200.00 as fixed, agreed and liquidated damages for each calendar day of delay for work described in Section 2a, until the work is completed and the sum of $100.00 for each calendar day of delay for work described in Section 2b, until the contract work is completed.” The Housing Authority granted an extension of eighty-two calendar days for Boilers 1 and 2 which deducted from the ninety-nine calendar days actual overrun of contract time left seventeen days for which they assessed damages on these boilers at $200.00 per day or $3,400.00 in liquidated damages. As to Boiler 3 there were one hundred twenty-seven calendar days actual overrun of contract time and the Housing Authority granted extension of one hundred twelve calendar days, leaving fifteen days which they computed at $100.00 per day or $1,500.-00 liquidated damages, for a total of $4,900.-00 which they assessed against the plaintiff and withheld from the payment due it under the contract. This is the amount in dispute in this action.

The contract between plaintiff and the defendants consists of the job order signed by plaintiff which was in response to defendants’ offer to do this work for the price stipulated. As previously stated herein that contract refers to completion “ * * * in accordance with the Plans and Specifications the following items * * * It does not contain any other agreements between the parties with reference to damages or any other language pertinent to the dispute between these parties.

So far as this record is concerned it must be read as showing that the provision requiring two of these three boilers to be working at all times was complied with. There is no other evidence as to any damage suffered by the Housing Authority and in fact the transcript shows that it was admitted the residents of the Carr Square Village project did not suffer any loss of heat or loss of hot water due to this delay.

In their reply to plaintiff’s answer to the counterclaim defendants contended that any amounts assessed against plaintiff were improper and arbitrary and constituted penalties which are unenforceable. This point was preserved in defendants’ motion for new trial and in the brief and argument before this court. Section 339, Restatement of the Law, Contracts, reads as follows in its pertinent parts: “LIQUIDATED DAMAGES AND PENALTIES. (1) An agreement, made in advance of breach, fixing the damages therefor, is not enforceable as a contract and does not affect the damages recoverable for the breach, unless (a) the amount so fixed is a reasonable forecast of just compensation for the harm that is caused by the breach, and (b) the harm that is caused by the breach is one that is incapable or very difficult of accurate estimation.” That portion of Comment “e” following that subsection pertinent to this appeal reads as follows: “If the parties honestly but mistakenly suppose that a breach will cause harm that will be incapable or very difficult of accurate estimation, when in fact the breach causes no harm at all or none that is incapable of accurate estimation without difficulty, their advance agreement fixing the amount to be paid as damages for the breach is within the rule stated in Subsection (1) and is not enforceable.” (Emphasis supplied.) This record is devoid of evidence any harm to the Housing Authority resulted from the delay in completion of this project in accordance with the time specified within the contract. Plaintiff’s admission the residents of the Carr Square Village project suffered no loss of heat or hot water must be interpreted as evidence to the contrary. That being so, the Housing Authority was not justified in assessing the sum of $4,-900.00 as liquidated damages for the reason that regardless of the name given to this sum it amounted to a penalty. Restatement, Contracts, § 339, Comment “e”. As this court said in Ward v. Haren, 183 Mo.App. 569, 167 S.W. 1064, 1. c. 1070 [9] [10]: “[9] And furthermore, even though the contract be construed as providing for liquidated damages, where no damages whatsoever have been sustained by the breach, we do not see how there could be a recovery of anything more than nominal damages. In Werner v. Finley, 144 Mo. App. [554] loc. cit. 561, 129 S.W. [73] 75, it is said: ‘The law undoubtedly is that, before any liability to pay liquidated damages can attach to the party in default, he must have been guilty of a substantial breach of his agreement, a breach which has resulted in more than mere nominal damage to the other party. “This rule is so manifestly just that no discussion of it is necessary.” Hathaway v. Lynn, 75 Wis. 186, 43 N.W. 956, 6 L.R.A. 553.’ See, also, McKee v. Rapp (Super.) 35 N.Y.S. 175; McCann v. City of Albany, 158 N.Y. 634, 53 N.E. 673; Wilcus v. Kling, 87 Ill. 107; 1 Sedgwick on Damages (9th Ed.) p. 759. * * * [10] While it is true that in an action to recover liquidated damages, where the amount stipulated in the contract may be properly treated as such, the stipulation between the parties becomes the measure of the actual damages sustained, nevertheless it is incumbent upon the party seeking to recover for such breach of the contract to show not only the breach, but that damages have in fact accrued in consequence thereof. Having shown the breach, and that substantial damage has resulted therefrom, the stipulation in the contract, in a proper case, will then come to his aid to determine the amount of his recovery, which otherwise might be uncertain and difficult of proof. But it must be made to appear that he has sustained some damage. In the instant case it was incumbent upon defendant to show that he had suffered some actual damage in order to entitle him to recover upon his counterclaim. In this he failed. And it will not do to say that the stipulation in the contract furnishes the measure of the damages, when in fact none were entailed by the breach.” See also Franken v. Carpenter, Mo.App., 364 S.W.2d 15, 1. c. 19 [6, 7], where this court, citing Ward v. Harén, supra, held: “A penalty, as such, is not enforceable and it is incumbent upon the party seeking to recover for a delay in performance ‘to show not only the breach, but that damages have in fact accrued in consequence thereof.’ * * * ” The $4,900.00 withheld by the Housing Authority from the amount due plaintiff constitutes a penalty rather than liquidated damages. While the propriety of such an act is not at issue in this appeal this amount could not properly be withheld from the plaintiff by the Housing Authority. That being so, plaintiff cannot properly withhold such sum from the defendants.

It was stipulated by the parties plaintiff was entitled to $4,900.00 on its petition and the decision herein is that defendants are entitled to the same sum on their counterclaim which shall operate as a setoff against plaintiff’s claim. Accordingly, this judgment must be reversed and the cause remanded to the trial court with directions that it enter its judgment in favor of plaintiff and against defendants in the sum of $4,900.00 on plaintiff’s petition and in favor of defendants and against plaintiff in the sum of $4,900.00 on defendants’ counterclaim. All costs are to be taxed against plaintiff.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of this court. The judgment is reversed and the cause remanded to the trial court with directions that it enter its judgment in favor of plaintiff and against defendants in the sum of $4,900.00 on plaintiff’s petition and in favor of defendants and against plaintiff in the sum of $4,900.00 on defendants’ counterclaim. All costs are to be taxed against plaintiff.

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


author: CLEMENS, Commissioner.

text:
    B-W ACCEPTANCE CORPORATION, Plaintiff-Respondent, v. Arlan V. BENACK and Doris Jeanne Benack, Defendants-Appellants.
    No. 32798.
    St. Louis Court of Appeals. Missouri.
    Dec. 19, 1967.

      Ackert & Tompkins and Herbert Wolko-witz, St. Louis, for appellants.
    Wayne H. Bigler, Jr., Clayton, for respondent.
   CLEMENS, Commissioner.

The essential issue here is the defendants’ contention that the trial court erred by ordering a separate trial on the issue of plaintiff’s right to possession in a statutory landlord-tenant suit — separate from the landlord’s claim for unpaid rent and the defendants’ counterclaim for damages for tortious conspiracy to defraud. Lesser issues are the defendants’ right to a continuance and their contention that six months’ rent is not “a half year’s rent.”

On the separate trial for possession the plaintiff landlord got a verdict and judgment, and the defendant tenants have appealed. The separate judgment, although not truly final, is based on a jury verdict and is therefore considered final for the purpose of appeal. Civil Rule 82.06, V.A.M.R. By agreement the defendants have filed a partial transcript — 228 pages of filings and orders, but no evidence.

Before summarizing those parts of the transcript necessary for our decision, we comment briefly on the statutes under which plaintiff brought its action. Chapter 535, V.A.M.S., entitled “Landlord-Tenant Actions in Magistrate Courts,” is a simple and expeditious procedure for regaining possession of property for nonpayment of rent. Carbonetti v. Elms, Mo.App., 261 S.W. 748[6]. By § 535.010 the landlord’s right to relief arises when “default shall be made in the payment of the rents at the time or times agreed upoh by the parties.” By § 535.040 the owner may sue either for possession and rent or for possession alone. Although §§ 535.020 and 535.040 require the landlord to make prior demand for the unpaid rent, by § 535.120 no previous demand is required when a half year’s rent or more is in arrears. Carbonetti v. Elms, supra.

On May 3, 1966, plaintiff filed a petition in the magistrate court alleging that it held a lease on the property and in turn had rented it to defendants for a month-to-month rental of $562.50, and that defendants owed plaintiff $3,375 for a half year’s rent for the period December 1, 1965, to May 31, 1966. Plaintiff prayed for possession and for $2,000 of the rent, that amount being the limit of magistrate jurisdiction. The defendants answered and counterclaimed. They denied plaintiff’s corporate status, denied renting the property from plaintiff, and asserted they held the property as tenants of another landlord. The defendants’ 20-page counterclaim alleged an involved tortious conspiracy to defraud and claimed $95,000 actual and $600,000 punitive damages. On defendants’ motion the cause was certified to the circuit court.

There the plaintiff filed a motion for a separate trial on the issue of possession alone, alleging: “Plaintiff is being irreparably damaged by the delay inherent in awaiting trial on all of the issues presented and alleged in defendant’s Counterclaim since neither plaintiff nor defendants is presently using the premises involved and plaintiff is obliged to pay a large rental for said premises while being unable to get possession of the same.” The plaintiff contended that suits for possession were “intended by the Legislature to be summary proceedings and speedily heard and that part of this action can be so heard without adversely affecting defendant’s Counterclaim.” On August 16, 1966, the court granted this motion and gave the separate trial a peremptory setting. Thereafter the defendants filed — and the court denied— motions to dismiss, for judgment on the pleadings, and for summary judgment. The defendants then filed 101 interrogatories. The court granted defendants’ request for admissions and motion to inspect but later denied their motion for a continuance. On September 26, 1966, the case went to trial on the separate issue of plaintiff’s right to possession.

The case was submitted to the jury on the factual issues of whether the plaintiff had a lease on the property, whether it had rented the property to defendants for a month-to-month rent of $562.50, and whether defendants owed rent for the period December 1, 1965, to May 31, 1966. The jury found for the plaintiff; judgment for possession, after-trial motions and this appeal followed.

As said, the defendants insist that the court erred in ordering a separate trial on the issue of possession. Civil Rule 66.02, V.A.M.R., declares: “The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims or issues.” Granting a separate trial is discretionary with the trial court and its ruling will be disturbed only if that discretion is abused. Hays v. Proctor, Mo.App., 404 S.W.2d 756[11]; Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596 [4]. One of the obvious purposes of this separate trial rule is to avoid delay. The rule substantially follows Federal Rule of Civil Procedure 42(b). See Vol. 2B, Barron and Holtzoff, Federal Practice and Procedure, § 943, quoting Collins v. Metro-Goldwyn Pictures Corp., C.C. A.2d, 106 F.2d 83, 1. c. 87: “* * * the trial judge has a practical discretion to dispose of them together, but when the natural course of trial indicates that one claim can be disposed of quickly and summarily while the other will require a considerable trial, separation should be possible save in cases where the facts are so inextricably interwoven that it is impossible or at least manifestly unfair.”

That very situation was before the trial court here: On the one hand, delay in getting possession was burdening plaintiff with a continuing obligation to pay rent to its own lessor, and plaintiff was seeking to regain possession under a statute designed to afford a simple and expeditious remedy. On the other hand, the defendants had filed a complex counterclaim involving complicated issues that defendants had still not developed for trial. We hold that the order separating the simple possessory issue from the complex monetary issues was in the interest of justice and in accord with Civil Rule 66.02, V.A.M.R.

The defendants argue that the order for a separate trial was erroneous because there may be “a multiplicity of suits with possible contrary results.” This “contrary results” argument is based on defendants! contention that their counterclaim for damages in tort could be used as a defense to the plaintiff’s claim for possession. We say no. Simply stated, the plaintiff’s right to possession was based on the defendants’ default “in the payment of the rents at the time or times agreed upon by the parties.” The defendants sought to defeat that right to possession by interposing an unliquidated counterclaim for an alleged tort. They cite no authority allowing that as a defense to the claim for possession, and we find none.

The defendants would ignore the distinction between a claim for possession based on unpaid rent and a claim for a money judgment for the unpaid rent itself. They were easy to separate. The claim for possession has now been adjudicated; the claim for rent is still before the court and may be determined simultaneously with defendants’ counterclaim. The separate trial did not complicate the issues; it clarified them. A repetition of some of the evidence may occur, but that is not an unreasonable price to pay for the prompt adjudication of plaintiff’s claim for possession. Looking now at the issue of separate trial as it appeared to the trial court when presented, we uphold its ruling.

After the court ordered the separate trial on the issue of possession, the defendants filed a motion for a continuance. The essence of the motion—and the argument now made—is that there should not be a separate trial. For the reasons previously stated, we hold there was no abuse of discretion in refusing to grant a continuance.

In three related points the defendants say the court erred in denying their motions to dismiss, for judgment on the pleadings, and for summary judgment. Each point is based on the defendants’ contention that plaintiff failed to plead that it had made a demand on defendants for the unpaid rent. As said, § 535.120, V.A.M.S., excuses a landlord from making a demand for rent whenever a half year’s rent or more is in arrears. Plaintiff pleaded that rent was due for the period December 1, 1965, to May 31, 1966. But the defendants now argue that was not “a half year’s rent.” This, they say, because § 1.020(6), V.A. M.S., defines “year” as a calendar year and because the pleaded period has only 182 days—half a day short of a half year. This statute does say “year” means “a calendar year unless otherwise expressed” and is “equivalent to the words ‘year of our Lord.’ ” But the statute also declares that its definitions shall apply “unless plainly repugnant to the intent of the legislature or to the context thereof.” Further, one of the cardinal principles of construing remedial legislation is that courts are to consider the evil sought to be cured and “to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief.” Decker v. Deimer, 229 Mo. 296, 129 S.W. 936[4].

Standing alone, the word “year” may well mean a calendar year and the phrase “a half year” may well mean 182)4 days, but all this disregards the word “rent”. The phrase before us is “a half year’s rent.” Considering the remedial nature of the statute and applying that phrase to a situation where month-to-month tenants had failed to pay their rent for six consecutive months, we rule that a half year’s rent was due and that the plaintiff was entitled to bring this action without making previous demand on the defendants.

The judgment on the separate trial for possession is affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the judgment on the separate trial for possession is affirmed.

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


author: HOGAN, Presiding Judge.

text:
    Tommy CAMERON and Montgomery GMC Trucks, Inc., a corporation, Plaintiffs-Respondents, v. VIRGINIA SURETY COMPANY, Inc., a corporation, Defendant-Appellant.
    No. 8595.
    Springfield Court of Appeals. Missouri.
    Dec. 29, 1967.

      Donald E. Bonacker, Skelton & Bo-nacker, Springfield, for defendant appellant.
    Gerald H. Lowther, James K. Prewitt, Henry W. Westbrooke, Jr., Miller, Fair-man, Sanford, Carr & Lowther, Springfield, for plaintiffs-respondents.
   HOGAN, Presiding Judge.

This is an action by the owner and the mortgagee of an insured diesel truck to recover a collision loss from the insurer. The plaintiffs had a verdict and judgment in the amount of $11,000.00, which the trial court reduced to $10,500.00 by remittitur. The insurer has appealed on the ground of error in the instructions, and in certain rulings made during the course of the trial.

Plaintiff Cameron bought the truck involved from the mortgagee, Montgomery GMC Trucks, Inc., in November 1964, and wrecked it on February 6, 1965. A lengthy period of negotiation followed before this action was filed. Some recitation of the relevant facts is necessary to an understanding of the issues involved, although by the time the case actually went to trial the sole matter at issue was the amount the insured was entitled to recover.

Plaintiffs’ evidence, so far as material here, was that Cameron had paid $12,250.-00 for the truck. The purchase price was $10,200.00, and the additional sum represented “carrying charges.” Mr. Cameron was of the opinion that the vehicle was worth between $10,000.00 and $11,000.00 immediately before the collision, and $400.-00 to $500.00 immediately afterward. The trailer, in his opinion, was worth $1,000.00 to $1,100.00 immediately before the collision, and “probably” $150.00 to $200.00 afterward.

Cameron testified that the insurer had made an offer of settlement in cash. This offer was based on a $7,450.00 value for the tractor, and he had rejected it because he considered the tractor was worth more. When the offer was made, the value of the trailer had been set at $975.00, which Cameron considered adequate. Cameron had also been offered a replacement tractor by the insurer. Plaintiffs’ version of this offer of replacement was that the replacement was rejected because “it wasn’t enough to cover the needs,” the “needs” apparently being to use the truck in the employ of Mayflower Van Lines, whose specifications were “very rigid.” Cameron said he had never seen the proposed replacement, and when it was offered the insurer had said nothing about a major overhaul. Cameron denied that the insurer had ever offered to take him to Nashville, Tennessee, to see the proposed replacement, or that it had offered to bring the replacement to Springfield, Missouri.

The insurer had the testimony of its representative, Mr. Ahles, and offered the deposition of a Mr. Ray Baucom, on whose lot at Nashville, Tennessee, the proposed replacement had been located. Mr. Baucom identified himself as “used truck manager” for a concern known as General Truck Sales, Inc., in Nashville, Tennessee. Mr. Baucom had had about 17 years experience in dealing with heavy equipment, and his job also occasionally involved appraising and valuing used trucks. In March 1965 Mr. Ahles, the insurer’s representative, had asked Baucom to locate a replacement for Mr. Cameron. Baucom had had a unit on his lot with basically the same specifications at that time, and he considered its fair and reasonable market value to have been $7,000.00. The insurer did not request Bau-com to hold this unit, and it was sold. Later, in August 1965, Baucom had again been asked to locate a replacement, and again he located one, “possibly better than the first.” He again placed the value of the replacement tractor at $7,000.00. It was developed on cross-examination, however, that the second unit, without any repairs, would have been worth “somewhere in the neighborhood of $5,000.00, maybe $4,500.00,” and the insurer proposed to do a complete overhaul on this vehicle before tendering it to the insured. Baucom estimated the value of the overhaul to have been $1,500.00 to $2,000.00. He went on to say that the repairs which were proposed consisted of “practically everything they do when they build the engine to start with.” Baucom was asked if he could honestly say what the value of the damaged tractor was when he had never seen it, and he answered that “***i**=t= think there is a maximum on any used truck,” and said that “ * * * for the market condition at that time $7,000.00 would be a maximum figure” for a tractor such as the one described to him.

Mr. Ahles, the insurer’s adjuster, testified primarily concerning the course of negotiation between him and the insured. Shortly after the loss was sustained, Mr. Ahles performed what he called a complete or near complete tear-down inspection of the damaged tractor, and determined that it was a total loss. Ahles then advised Cameron that the insurer could offer a cash settlement under the policy or attempt to locate a replacement. According to Ahles, the insured first talked about a cash settlement but later asked that the insurer locate a replacement. Mr. Ahles then took photographs of the damaged tractor and furnished specifications to Mr. Baucom so a replacement could be located. When Cameron refused the first replacement, Ah-les offered him payment in money. This offer was $7,000.00 for the tractor and $975.00 for the trailer, less a deductible amount of $250.00 on each unit. This offer was also rejected.

In August 1965, the ..insurer’s representative contacted Cameron’s attorney and was advised that Cameron wanted a replacement unit. The circumstances of the insurer’s offer at this time was that it would repair the proposed second replacement and tender it, if it was satisfactory to Cameron. Cameron rejected the second offer of replacement. Ahles also testified, without objection, that he intended to exercise the option given the insurer to pay what it would cost to replace the vehicle.

In rebuttal, the plaintiffs offered the testimony of Mr. H. P. Montgomery, the mortgagee corporation’s president. The substance of Mr. Montgomery’s testimony was that the kind of overhaul or repair proposed for the second replacement would have cost at least $4,000.00, that the damaged tractor could not have been replaced for $7,000.00, and that an adequate replacement would have cost at least as much as Cameron had paid, that is, $10,200.00.

The insurer admits that the truck, both tractor and semi-trailer, was damaged by upset or collision as defined by its policy, and that the policy was in force when the vehicle was wrecked. Among other things, the policy provides for a $250.00 deductible amount on each collision loss, that for collision purposes the tractor and trailer are to be considered separate vehicles, and under the general heading “Conditions,” states:

“14. Limit of Liability; Settlement Options; No Abandonment — Coverages D, E, F, G, H and I: The limit of the company’s liability for loss shall not exceed either (1) the actual cash value of the automobile, or if the loss is of a part thereof the actual cash value of such part, at time of loss or (2) what it would then cost to repair or replace the automobile or such part thereof with other of like kind and quality, with deduction for depreciation, or (3) the applicable limit of liability stated in the declarations.
The company may pay for the loss in money or may repair or replace the automobile or such part thereof, as aforesaid, or may return any stolen property with payment for any resultant damage thereto at any time before the loss is paid or the property is so replaced, or may take all or such part of the automobile at the agreed or appraised value but there shall be no abandonment to the company.”

Preliminarily, we must deal with two matters which the respondents say prevent a consideration of this appeal on its merits. Before the case was argued and submitted, the respondents filed a motion to dismiss the appeal on the ground that the appellant had not fairly and concisely stated the facts relevant to the questions presented in its brief as required by Rule 83.05, pars, (a) and (c), V.A.M.R. There is some merit in this motion, for the appellant’s factual statement is argumentative and in many respects assumes there is no conflict in the evidence when there is. The penalty of dismissal is a drastic one, however, and we are fully convinced that the appellant made no conscious effort to distort the facts or evade the requirements of Rule 83.05. Though the factual statement in appellant’s brief is inadequate, we are able to ascertain the facts determinative of the only real issue presented. The motion to dismiss the appeal is denied, and we will consider the substance of the appellant’s points. Kirkpatrick v. Wabash R. Co., 357 Mo. 1246, 1250, 212 S.W.2d 764, 765-766 [1]. Likewise, the respondents contend that the appellant’s objections to Instruction No. 2 on the measure of damages are not properly preserved for review because its assignment of error on motion for new trial was not specific enough. Conceding that it was incumbent upon the appellant to make some specific objection to Instruction No. 2 in the trial court in order to preserve error for review, Duffendack v. St. Louis Public Service Co., Mo.App., 365 S.W.2d 52, 54 [4], we have examined the appellant’s assignments of error in its motion for new trial and consider them sufficient to preserve the only real question argued on this appeal, which is whether Instruction No. 2 properly defined the measure of damages for the jury.

For our purposes, the criticized instruction can be taken as stating two alternative guides by which to measure the amount of plaintiffs’ recovery. Instruction No. 2, of which complaint is made, advised the jury that it would award the plaintiffs (1) such sum as it found to be the difference in the fair market value of the tractor and trailer in question immediately before and immediately after the collision, unless (2) it found that defendant elected to pay plaintiffs the replacement value of the tractor and trailer, and did find a replacement of like kind and quality, in which case its verdict would be for the cost of a replacement.

The appellant argues that Instruction No. 2 was prejudicially erroneous because it permitted the jury to find that the insurer did not exercise its option to replace the vehicle when the evidence conclusively shows that it did. We find no merit whatever in this contention. Though much proof was adduced concerning the two proposed replacements, the option to replace the vehicle was not really put in issue. The insurer never undertook to locate a replacement for the trailer; its efforts in that direction were limited to the tractor. As for the tractor, the insurer’s evidence was, in net effect, that it first offered to pay cash or make replacement, as the insured chose. It then found a replacement which was refused, then offered the cash value of that replacement, and finally located a second vehicle which it offered to repair if the insured would accept it as a replacement of like kind and quality. We have considerable doubt that the policy authorizes the insurer to pay in part and replace in part. Globe & Rutgers Ins. Co. v. Prairie Oil & Gas Co., C.C.A. 2 Cir., 248 F. 452, 455 [2]; State Bank of Chilton v. Citizens’ Mut. Fire Ins. Co., 214 Wis. 6, 252 N.W. 164, 166 [5], Assuming it did, however, the insurer was required to exercise its option to replace in an unequivocal and unconditional manner, and it could not couple its election with an offer of compromise nor use it as a means of forcing a compromise settlement. Smith v. Farm Bureau, etc., Ins. Co. of Concord, 98 N.H. 420, 101 A.2d 778, 780 [3]; 46 C.J.S. Insurance § 1195, p. 131. In this case, the insurer’s action cannot be construed as an election to replace the damaged vehicle.

Appellant’s further objection to Instruction No. 2 is that it “ignores” the policy provision limiting the insurer’s liability to the actual cash value of the vehicle at the time of loss, or the cost of a replacement, whichever is lesser. As developed in the brief, the appellant’s point is that Instruction No. 2 improperly limits the jury’s consideration of the evidence of the cost of a replacement by requiring the jury to find that the insurer elected to pay the cost of a replacement, and did find a replacement of like kind and quality. Going somewhat further, the appellant maintains that the jury should simply have been instructed to award plaintiffs the actual cash value of the vehicle or the cost of a replacement of like kind and quality, whichever was the lesser, less the deductible amounts and salvage value of each vehicle.

There is indeed some merit in this argument. The insurer’s failure to exercise its option to replace the vehicle would not deprive it of the policy limitation on its liability, Stucker v. Travelers Indemnity Co., 77 S.D. 27, 84 N.W.2d 566, 568 [2], and the jury should not have been required to find that the defendant elected to pay the replacement value, and did find a replacement, as prerequisites to a consideration of the limitations on liability. To this extent the instruction required findings on extraneous issues, and was doubtless somewhat confusing and misleading. We further agree that the quoted policy provisions not only limit the insurer’s liability, but fix the measure of damages, Wilson v. Motors Insurance Corporation, Mo.App., 349 S.W.2d 250, 255 [6] [7]; Home Ins. Co. of New York v. Tumlin, 241 Ala. 356, 2 So.2d 435, 437 [3,4], though admittedly the authorities do not uniformly so hold when the damaged vehicle is a total loss, as it was in this case. Bickel v. Nationwide Mutual Insurance Co., 206 Va. 419, 143 S.E.2d 903, 905 [1] [2]. The instruction should clearly have confined plaintiffs’ recovery to the lesser of the two alternative limits of liability, less the deductible amounts on each vehicle- and the salvage or wreckage.

But assuming that the instruction does not follow the very language of the policy, and at least partially misstates the law, the question remains whether the defendant was materially prejudiced by the error. As indicated, we regard Instruction No. 2 as laying down two guides by which to determine the amount of plaintiffs’ recovery. The jury is told to award the difference in the fair market value of the damaged truck before and after the collision, that is, the diminution in value, or the cost of a replacement, providing it finds the insurer elected to pay the cost of a replacement and did find one. We find the statement of the first guide or alternative unexceptionable. Market value is at least one proper test of the actual cash value of an automobile, Anno., 61 A.L.R. 2d 711, § 6 [a], pp. 719-723, and an award of the difference in market value before and after the loss takes the salvage into account. See Jarnagin v. Queen Ins. Co. of America, Mo.App., 272 S.W. 1095, 1096 [3] [4]. Of course, the instruction should have taken the deductible amount in consideration, but the trial court recognized this in ordering a remittitur.

To determine whether the other guide given the jury was prejudicially erroneous, we must further examine the substance of the appellant’s complaint and consider the evidence of the cost of a replacement. In essence, the appellant complains that because the jury was not plainly and clearly instructed on the law it returned a verdict based on the plaintiffs’ evidence of the fair market value, rather than one based on the insurer’s evidence of the cost of a replacement. As our recitation of the facts shows, plaintiffs produced a good deal of evidence dealing with the fair market value of Cameron’s truck before and after the collision, and in rebuttal offered evidence that a replacement of like kind and quality would cost at least $10,200.00 in the Springfield, Missouri, area. Defendant offered evidence of the cost of a replacement at Nashville, Tennessee. Baucom, from whom the insurer proposed to obtain the replacement, testified that the value of a replacement vehicle was $7,000.00. In the course of his testimony, Baucom did say, in a very general vein, that “to me, for the market condition at that time, $7,000.00 would be a maximum figure,” but there was no showing by the defendant of the points of similarity and difference between the markets, if any, at Springfield, Missouri, and Nashville, Tennessee, nor was it demonstrated that plaintiffs’ vehicle was of the type generally bought and sold at a more or less uniform price throughout the country, nor was the cost of transportation shown. Nor is Baucom’s testimony like that discussed in Strickland v. Quality Building & Security Co., 220 Ark. 708, 249 S.W.2d 557, 558 [1-3], wherein the witnesses, though out-of-state dealers, were familiar with the local market. It is clear to us that Baucom’s testimony was simply that a replacement could be bought for $7,000.00 at Nashville. He testified by deposition, and objection was made and overruled to this part of the deposition.

In this respect, the record has a curious aspect. Though the only substantive issue on trial was the value of the damaged vehicle, which is generally to be determined as of the time and place of its taking of destruction, 22 Am.Jur,2d Damages, § 147, p. 212, the parties here deliberately chose not to show where the loss occurred, and only by indirection do we glean from the transcript that it occurred in the Springfield, Missouri, area. Ahles, the insurer’s representative, testified wholly without objection that he “understood” it occurred “within a distance of a hundred miles” of Crane, Missouri, which is “just a short distance” from Springfield, Missouri. While this is far from satisfactory, clear proof of the location at which the collision occurred, even hearsay unobjected to may be taken in consideration in reaching a conclusion, Goodman v. Allen Cab Co., 360 Mo. 1094, 1100, 232 S.W.2d 535, 539 [4]; Vosburg v. Smith, Mo.App., 272 S.W.2d 297, 302 [9], and cases cited note 9, the parties otherwise treated Springfield, Missouri, as being the point at which the value of the damaged vehicle should be fixed, and we conclude that the evidence which the appellant claims was ignored was only evidence of replacement cost at a distant market, which would not in itself and without more be proof of its value in or near Springfield, Missouri. Barton v. Farmers Ins. Exchange, Mo.App., 255 S.W.2d 451, 456 [4]; 22 Am.Jur.2d Damages, § 325, p. 426 ; 25 C.J.S. Damages § 88, p. 972. In short, the jury’s verdict was in an amount well within the range of value supported by the competent evidence. Any error induced by the jury’s lack of instruction on the deductible amount was ascertainable and susceptible to cure by remittitur, and we cannot say that the appellant was prejudiced because of the trial court’s error in defining the measure of damages. Mercer v. Millers Mut. Fire Ins. Ass’n, Mo., 249 S.W.2d 402, 407; Blydenburgh v. Amelung, Mo.App., 309 S.W.2d 150, 153-154; Yankoff v. Allied Mutual Insurance Co., Mo.App., 289 S.W.2d 471, 475-476 [3]. See also LaPlant v. E. I. DuPont De Nemours and Company, Mo. App., 346 S.W.2d 231, 244.

The appellant has also raised two points dealing with rulings made during the trial. The insurer assigns error to the trial court’s refusal to declare a mistrial when the insurer’s representative was asked if he was aware that Cameron had signed a promissory note for $12,500.00 for the tractor. The witness did not answer the question. Cameron had testified without objection that he paid $12,500.00 for the truck, that $10,200.00 was the purchase price, and that the balance represented “carrying charges.” Prior to trial the appellant had moved orally “to suppress the amount that is owed upon the chattel mortgage * * * for the reason that * * any mention of it * * * would be highly prejudicial to the defendant.” The court ruled that the amount of the mortgage would not be permitted in evidence. Subsequently, the question indicated was asked and the trial court quickly and properly admonished the jury to disregard the question and any inference to be drawn from the statement of the question. Appellant’s point is that such evidence would have had a tendency to encourage or persuade the jury to award Cameron enough money to pay his debt, and quite likely that is true. We are not convinced, however, that counsel’s violation of the court’s advance ruling was deliberate, nor are we as convinced as the appellant that such evidence, had it been admitted, would not have been merely cumulative of what had already been said. Except in unusual circumstances, an admonition to the jury to disregard evidence improperly admitted is sufficient, as we pointed out in Kirst v. Clarkson Const. Co., Mo. App., 395 S.W.2d 487, 499 [21], and in this instance the witness was not even allowed to answer the question. We consider the trial court’s action appropriate and sufficient.

The appellant further says a mistrial should have been declared because the jury was allowed to see an “informational copy” of the policy in suit. Again, before the trial the insurer moved to suppress any evidence of the stated amounts of insurance on the face of the policy. The trial court ruled that the policy was admissible in evidence, and that counsel might read from the policy, except that the stated amounts might not be shown to the jury. The plaintiffs introduced the policy in evidence; the insurer used it in examining its representative Ahles to determine whether Ahles had sought to exercise the policy option to replace the damaged vehicle. Part of the policy provisions we have recited were read to the jury. Counsel for plaintiffs then proposed and undertook to show the policy to the jury for the purpose of showing the stated amounts of insurance because, as he said, “they have opened it up.” The trial court advised counsel that it had previously ruled the stated amounts were not to be shown to the jury, and counsel for the plaintiffs desisted. The appellant argues here that the jury was prejudiced by having seen the stated amounts of insurance on the obverse side of the policy, but the record does not actually show what the jury saw nor read, and the trial court was convinced no prejudice had been worked. We have considered the record in this respect, and we think the incident complained of was not prejudicial and was not a ground for mistrial.

Inasmuch as no prejudicial error appears in any of the respects briefed and argued before this court, the judgment is affirmed.

TITUS, J., concurs.

STONE, J., dubitante.


author: TITUS, Judge.

text:
    Glendola HARRISON and Armon Harrison, Plaintiffs-Respondents, v. Andy WELLER and Sterling Aluminum Company, a corporation, Defendants-Appellants.
    No. 8724.
    Springfield Court of Appeals. Missouri.
    Dec. 22, 1967.

      Manuel Drumm, Sikeston, for defendants-appellants.
    McHaney & Welman, Kennett, for plaintiffs-respondents.
   TITUS, Judge.

The occurrence which activated this damage suit transpired April 29, 1964, in Cardwell, Missouri, when a tractor-trailer unit driven and owned by defendants collided with a pick-up truck occupied by plaintiffs Armón and Glendola Harrison, husband and wife. Nearly three years later on April 12, 1967, a jury in the Circuit Court of Mississippi County awarded damages to Mrs. Harrison in the sum of $7,-500 for her personal injuries. Her husband was allowed $4,000 for the cost of medicines and medical services furnished Mrs. Harrison and because of the alleged loss of his wife’s consortium, services and association. This appeal, perfected by defendants when their after-trial motions came to naught, does not involve the issue of liability.

Mrs. Harrison, forty-four years of age at the time of collision, was never hospitalized and Dr. English, the only treating physician, ministered unto her but six times on April 29, 30, May 4, 11, 23, and on June 29, 1964. Mrs. Harrison was dismissed from Dr. English’s care on this last date and he did not again see her until the day before trial “in preparation for coming up here for this lawsuit.” The total doctor bill, including “x-rays and everything,” was $123 and the cost of medicines “was approximately $50, I guess.”

The accident occurred near Dr. English’s professional rooms and he examined Mrs. Harrison cursorily at the scene before taking her to his offices for a thorough inspection. The doctor said Mrs. Harrison was found to have unspecified injuries “to her neck” and left lung, a fracture of the seventh left rib, a cut to her middle right finger, pleurisy over the left chest, and multiple contusions and bruises over the chest, upper back, left shoulder, left hip and to the left side of her head. Twelve days after the accident Mrs. Harrison complained of dizziness “when she would lie down.” The physician said this was “vertigo.” Twenty-four days following the collision, Mrs. Harrison complained “of wanting to cry all the time [and] had a headache.” X-rays were then made and revealed Mrs. Harrison “had two fractures of the eighth left rib and the fracture of the seventh left rib.” On June 29, 1964, sixty days after the accident when Mrs. Harrison was finally dismissed from medical care, “she had no headache or dizzy spells” but said she “was very nervous.” The doctor’s handwritten record of this examination states: “No complaints. * * * No headaches or dizzy spells * * * still has crying spells at times but it is much better.” Mrs. Harrison, on this date, according to the record, had no pain, soreness, tenderness or limitation of motion to any part of her body.

Mrs. Harrison told the jury she was home abed four or five days following the accident and wore an elastic rib bandage for three weeks. The next month she rested in the mornings and afternoons, did “cooking mostly, some washing” but no “cleaning house.” Thereafter, she was “up” continuously during normal waking hours and by the time of trial had been performing all household duties for a considerable period. “Outside chores” in her gardens and “mowing the lawn” had been restricted and since the accident she had not helped her husband with his farming which previously consisted of assisting him “haul his beans to the elevator and I filled the drills for him and rode the drill, see that it was working right, and I have driven a tractor for him.” Mrs. Harrison, according to plaintiffs, had intermittently experienced headaches, dizziness, nervousness and crying spells to the time of the hearing. Differing from the dizzy spells described to Dr. English while under his care, Mrs. Harrison testified she got dizzy “when I would look up” and that is why she required her daughter’s assistance to “hang out the clothes.” In explaining her “nervousness” Mrs. Harrison related “Be times I just want to cry * * * when I have one of those nervous spells I [usually] have a headache * * * maybe every month, maybe sometimes more than once a month.” Asked if she had “any explanation as to why you have these crying spells,” Mrs. Harrison answered “No, I don’t.”

What the examination of Mrs. Harrison by Dr. English on the day before trial consisted of was not asked or recorded. His recitation relative thereto was replete with history, matters in the past, and what Mrs. Harrison recounted to him concerning her past complaints and past conditions. Such testimony is within the hearsay rule (Schears v. Missouri Pacific Railroad Company, Mo. [banc], 355 S.W.2d 314, 317 [1] and 319) but was not objected to by defendants on that ground. For example, Dr. English said Mrs. Harrison had told him “if she takes the least bit of a cold her left ear hurts her. She has a dull aching pain up and down the left side of her neck if she does not take a pain medicine. She has spots before her eyes and sometimes she cannot see out of the right eye.” When inquiry was made of Dr. English as to “Mrs. Harrison’s present condition,” he replied “she has some injury to her brain * * * [and] some injury to her left ear.” He equivocally explained what he meant “by that” in stating, “Well, at the time of this accident the left side of her face was bruised, and the dizziness that she had was injury to her nerves that go to the left ear * * * and to the center part of the brain.” The testimony of the physician who examined Mrs. Harrison on behalf of the defendants was to the effect “I didn’t find anything wrong with her on examination” except for “her story or residual complaints” and he “couldn’t say” what the complaints of “headaches and the crying and the infrequent dizzy spells” were due to and could not relate them to “some injury she sustained in the accident.”

Save the single inquiry if the “inflamátion of the lower lobe [of the lung, we assume] on the left side,” diagnosed May 4, 1964, was “a direct result of the automobile accident,” no question was propounded to Dr. English if, in his opinion, there existed any possibility, probability, chance, assurance, likelihood or reasonable medical certainty the accident could, might, would or did cause or produce Mrs. Harrison’s injuries, complaints, or conditions as related in the testimony. No hypothetical question in any form was asked Dr. English. The doctor did testify no “permanent condition” resulted from the fractured ribs but he was never asked his opinion if any of the other injuries, complaints or conditions would result in any permanent or future pain, disability, discomfort or damage. The testimony of Dr. English was the only medical evidence offered by plaintiffs and the need of future medical treatment for Mrs. Harrison was never indicated.

Defendants contend the verdicts are excessive and the trial court erred in giving instructions 5 and 6 (MAI 4.01 Modified-Measure of Damages) because the evidence did not establish plaintiffs had sustained any permanent or future damages as a direct result of the accident and in permitting plaintiffs’ counsel, over objection, to argue to the jury “specifically concerning [certain] injuries” when there was insufficient evidence to causally connect them to the collision. We shall consider the penultimate assignment first.

Instruction 6 only differed from Instruction 5 as we indicate by brackets, as follows :

“If you find the issues in favor of the plaintiff Glendola [Armón] Harrison on Count I [II] of the petition, then you must award the plaintiff Glendola [Armón] Harrison such sum as you believe will fairly and justly compensate the plaintiff Glendo-la [Armón] Harrison for any damages you believe she [he] sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence [of the injuries to his wife, Glendola Harrison].” The italicized portion of the instructions (our addition) appears in brackets in MAI 4.01 with the admonition “This may be added if supported by the evidence.” Missouri Approved Jury Instructions, p. 25. The Committee’s Comment cautions that “During the instruction conference the parties and the Court should discuss (on the record) just what damages are supported by the evidence and can properly be argued to the jury. In this way jury arguments can proceed without interruption.” The transcript indicates this advice was not followed.

The obvious deficiency in defendants’ complaint with regard to there being no evidence of permanent damages to support the instructions, lies in the fact neither instruction employs the word “permanent” nor the phrases “permanent injury” or “permanent damages.” Neither does MAI 4.01. While permanent injury may include future damage, the converse is not necessarily true. It has long been recognized “an injury may not be permanent and yet it may affect the health in the future; that is to say, for a period after the trial, greater or less in length of time. * * * ‘Permanent injury’ and ‘future injury’ are not expressions of the same thing. * * * And so * * * said in Ballard v. Kansas City, 110 Mo.App. 391, 396, 86 S.W. 479, that there might not be a permanent injury and yet the jury allow for future pain.” Wood v. Chicago, B. & Q. Ry. Co., 119 Mo.App. 78, 95 S.W. 946, 947. “There is a distinction between damages that will reasonably result in the future and permanent injuries.” Stahlberg v. Brandes, Mo.App., 299 S.W. 836, 838(7); Heibel v. Robison, Mo.App., 316 S.W.2d 238, 242; Derschow v. St. Louis Public Service Co., 339 Mo. 63, 95 S.W.2d 1173, 1175(3); Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 61 S.W.2d 328, 334(6). There was no evidence any injuries or conditions complained of by Mrs. Harrison were permanent and such issue was not submitted to the jury by either instruction.

If it could be said the complaints of Mrs. Harrison at trial had persisted from the time of the accident and resulted from injuries she received in the collision, authority indicates the long continuance of -conditions existing at the hearing of the cause is sufficient to warrant the giving of an instruction on future pain and suffering (Pettus v. Dubman, Mo.App., 389 S.W.2d 373, 377-378 [11]) and “makes a situation where it is for the jury to determine the probable duration of the injury.” Palmer v. Lasswell, Mo.App., 267 S.W.2d 492, 497 (11). But such staples from justice’s larder need be ingested with caution in this case for it does not necessarily follow from the fact (if it be a fact) Mrs. Harrison’s “present condition” is reasonably certain to continue into the future that it is also reasonably certain such condition flows directly from the original injury and the accident of April 29, 1964. Zoeller v. Terminal Railroad Ass’n of St. Louis, Mo.App., 407 S.W.2d 73, 77-78(2); Clark v. Mississippi River & B. T. Ry., 324 Mo. 406, 23 S.W.2d 174, 179. The burden was on plaintiffs to show by substantial evidence a causal connection existed between defendants’ negligence and all the injuries and damages for which recovery was sought. Immekus v. Quigg, Mo.App., 406 S.W.2d 298, 302(9) and cases cited; 65A C.J.S. Negligence § 244(1), pp. 722-723.

There are, of course, occasions where the facts and circumstances in evidence may reasonably permit an inference the occurrence was the proximate cause of injury, and instances where the causal connection between the tort and the disability does not need to be established by expert testimony because the disability develops coincidentally with the negligent act or the cause of injury relates to matters of which laymen have common knowledge and understanding. Fellows v. Farmer, Mo.App., 379 S.W.2d 842, 851(18); Bell v. S. S. Kresge Co., Mo.App., 129 S.W.2d 932, 935(4); 65A C.J.S. Negligence § 244(4), pp. 736-737. Defendants, as we understand it, do not strongly oppose the application of an inference the injuries to Mrs. Harrison’s neck and lung, the broken ribs, and the bruises and contusions (all observed by Dr. English immediately following the accident and within a few days thereafter) were produced by the collision even though the doctor did not so directly testify. But if we indulge such an inference, we are bound to additionally infer that within sixty days of the casualty Mrs. Harrison had completely recovered from those injuries which appeared coincidentally, or nearly so, with the accident, for at that time she had “no complaints, no dizzy spells, no headaches” and no pain, tenderness, soreness or limitation of motion in any part of her body. We do not overlook Mrs. Harrison’s complaint to Dr. English of nervousness which she told him twenty-four days after the accident manifested itself in crying spells. However, there can be little doubt a question involving causa causans of emotional disturbances is a complex one, peculiarly appropriate for science to answer, and a question which no jury should be permitted to resolve in the absence of expert testimony. Wilhelm v. State Traffic Safety Commission, 230 Md. 91, 185 A.2d 715, 719. There was no medical opinion evidence which directly related the complaints of crying spells to either the collision or any injury Mrs. Harrison may have received in the accident, and the matter of causation was materially confounded by Mrs. Harrison’s positive assertion she had no explanation as to why she had “these crying spells.” Absolutely no effort was made to establish a relationship between the casualty and any injuries received by Mrs. Harrison to the complaints made to Dr. English three years after the accident that she had spots before her eyes, sometimes loss of vision in the right eye, aching in the neck unless she takes “a pain medicine,” and hurting in the left ear if “she takes the least bit of a cold.” The “injury to the nerves that go to the left ear * * * [and] to the center part of the brain” alluded to by Dr. English in explaining what he meant by saying Mrs. Harrison had “some injury to her brain * * * [and] left ear,” was said to have caused “the dizziness that she had.” If we accept this as causally related to the accident, it may be evidence of the cause of vertigo Mrs. Harrison had but it is not satisfactory evidence of the cause of any claimed existing injury, disability or condition to be projected as future damages.

It seems to us the cause, effect and probable duration of nerve injuries, vertigo, brain damage, emotional disturbances and loss of vision principally dependent for diagnosis on subjective complaints recounted almost three years subsequent to the casualty, present problems involving intricate medical inquiry, and that neither laymen nor courts are sufficiently informed or so commonly steeped in the science of such matters they can reasonably or to any degree of accuracy devine the etiology thereof without the aid and assistance of testimony from skilled and professional experts. The existence and perseverance of such complaints certainly might produce a serious suspicion in the lay mind there was a causal relationship between them and the accident and a likelihood they would last into the future and produce damage beyond the date of the hearing. But to allow a jury of laymen, unskilled in medical science, to attempt to answer questions concerning the origin, effect and duration of such conditions or injuries with no medical testimony on the subject, would permit the rankest kind of guesswork, speculation, and conjecture. James v. Sunshine Biscuits, Inc., Mo., 402 S.W.2d 364, 372-375(1-3) and cases cited; Watkins v. West, Mo.App., 297 S.W.2d 568, 572; Frisone v. United States, 9 Cir., 270 F.2d 401, 403; Uris v. State Compensation Department, Or., 427 P.2d 753, 755(1,2); Larson v. State Industrial Accident Commission, 209 Or. (banc) 389, 307 P.2d 314, 318-319; United Ins. Co. v. McElwee, Okl., 258 P.2d 609, 610(2-3); Spivey v. Atteberry, 205 Okl. 493, 238 P.2d 814, 816(1-5), 27 A.L.R.2d 1259; Wilhelm v. State Traffic Safety Commission, supra, 185 A.2d at 719(4); Roy v. Robin, La.App., 173 So.2d 222, 224(4 — 5). Before a recovery may be allowed for future damages or future pain and suffering for the type of conditions complained of by Mrs. Harrison, there should be competent medical testimony which not only shows a causal relationship of such conditions to the accident, but which additionally makes it reasonably certain such conditions will protrude into the future. The unsupported subjective statements of the injured party are not sufficient and where, as here, there is no medical evidence relating either the cause or the duration of the complaints to the initial injuries or the casualty, it was error for the court to instruct on future damages. Zoeller v. Terminal Railroad Ass’n of St. Louis, supra, 407 S.W.2d at 77-78(2-4) and cases cited. Additionally we think it was error for the trial court to permit plaintiff’s counsel, over objection, to argue concerning the specific injuries for which there was no substantial medical evidence concerning their cause and “we cannot say that the error was not prejudicial in view of defendant’s serious contention that the verdict[s were] excessive.” Watkins v. West, supra, 297 S.W.2d at 572(9)Holmes v. Terminal R. R. Ass’n of St. Louis, 363 Mo. 1178, 257 S.W.2d 922, 928-929(13); and authorities cited in both cases.

Man places, and rightfully so, an inordinate and unique importance upon his head and the integrity of the functions of its auricles, orbs and encephalon. The size of the verdicts indicate the jury took cognizance of the testimony regarding brain damage, ear injury, loss of vision and emotional upsets, “and since such evidence must have considerably augmented the damages allowed, there is no basis for a remittitur.” Bertram v. Wunning, Mo. App., 385 S.W.2d 803, 807(6).

For the reasons stated aforesaid and because defendants have made no claim the jury erred in its determination of liability (V.A.M.R. 83.13 [c], V.A.M.S. § 512.160, subd. 3), the judgment of the trial court as to both Count I and Count II of the petition is reversed and the cause remanded for a new trial on the issues of damages only.

HOGAN, P. J., STONE, J., and COT-TEY, Special Judge, concur.


author: MILLIKEN, Judge.

text:
    KENTUCKY FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Priscilla HARP, Appellee.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.
    Rehearing Denied Feb. 16, 1968.
    Reford H. Coleman, Faurest & Collier, Elizabethtown, for appellant.
    Thomas W. Hines, G. D. Milliken, Milli-ken & Milliken, Bowling Green, C. O. Carrier, Leitchfield, for appellee.
   MILLIKEN, Judge.

This is an appeal by Kentucky Farm Bureau Mutual Insurance Company from a judgment holding it liable on a policy on which it asserts it is not liable because of an exclusion in the policy.

Priscilla Harp is the wife of Eugene Harp and the daughter of Clyde Harris on, both of whom were co-defendants in the original action brought by Mrs. Harp for personal injuries arising out of an automobile accident which occurred May 6, 1962. At the time of the accident, Priscilla and her younger brother, Clyde Marcus Harrison, were passengers in her father’s automobile, which was being operated by her husband, Eugene Harp, with the permission of her father, Clyde Harrison, who was the named insured in a liability policy issued by the Kentucky Farm Bureau Mutual Insurance Company, the appellant herein. Apparently, Harp was taking the car for servicing at Harrison’s request when the accident happened.

The jury awarded Priscilla Harp $20,000.00 against her husband and father, but when she sought payment under her father’s liability insurance policy, the insurer, the Kentucky Farm Bureau Mutual Insurance Company, refused to pay, citing the terms of its policy and the family exclusions found therein. Suit was brought against the insurance company to recover the amount of the judgment and the court granted Priscilla Harp a summary judgment. This appeal followed.

The pertinent provisions of the policy we are dealing with are as follows:

DIVISION A — LIABILITY (policy, page no. 1)

COVERAGE A — Bodily Injury Liability.

1. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:

A. Bodily injury, sickness or disease, including death at any time resulting therefrom thereinafter called “Bodily Injury”, sustained by any person or persons; * * *.

Caused by accident and arising out of the ownership, maintenance or use, of the automobile, * * * ”

III. Persons insured.

The word “Insured” means the named insured, and * * * any person * * * legally responsible for the use thereof * * * ”

EXCLUSIONS

This policy does not apply under Division A * * *

5. To bodily injury to or sickness, disease or death of the named insured, or of any other insured, or any member of the family of either, who are residents of the household of either.

The insurer’s main argument on appeal is that the trial court erred in granting Priscilla Harp’s motion for summary judgment, and also erred in not giving the insurer summary judgment. With this we agree, because it appears that her husband, Eugene Harp, was an “insured” within the terms of the exclusions in the policy. He was legally responsible for the operation of the vehicle and was operating it by permission of the named insured, Clyde T. Harrison. When applied to the exclusion provision set out above it seems obvious that Eugene Harp falls into the category of “other insured” and so any member of his family who is a resident of his household 'may not recover under this policy. Although there may be doubt as to whether Priscilla Harp was a member of her father’s household within the meaning of the policy, it is clear that she was a member of the family of her husband and a resident of his household although they both were living temporarily with her parents at the time of the accident and had lived together in numerous places since their marriage in 1956. Since she clearly was a member of. her husband’s household, the insurer was entitled to the summary judgment unless it waived the exclusion provision of the policy in any way. In Third National Bank of Ashland v. State Farm Mutual Automobile Insurance Company, Ky., 334 S.W.2d 261, where an insurance policy with an exclusion clause similar to the one presented here was involved, we said:

“We are impressed by the fact that the clear purpose of the exclusion was to protect the insurer from over-friendly lawsuits, which nearly always would exist where plaintiff and insured defendant are bound by ties of kinship and are living together.”

Such family exclusion provisions have been usually held valid unless forbidden by statute. 7 Am.Jur. (2) Automobile Insurance, Sec. 131, p. 452.

The insurer defended the negligence action brought by Priscilla Harp against her husband and father, but informed the father, the named insured, that it did not waive its right to the defense afforded it by the aforequoted exclusion clause, and the notice was timely given. There is no non-waiver notice in the record as to the defense of the action against the husband, but when the insurer’s liability under the policy was inferentially put in issue by the filing of the negligence action the insurer notified its named insured, Clyde Harrison, in writing that it would not defend the action because it was not liable under the exclusion in its policy and wrote, “We are giving similar notice to Mr. Harp.” It was after this that the insurer undertook defense of the negligence action and obtained the nonwaiver agreement signed by the named insured, Clyde Harrison, but there is no such non-waiver agreement executed by Eugene Harp, the driver of the insured car. However, it is not denied in the record that the husband, Eugene Harp, was notified by the insurer that it claimed no liability under the exclusion in its policy, but we do not believe this is a controlling factor as we shall demonstrate later in this opinion.

Whether it was necessary for the insurance carrier to obtain such a non-waiver agreement from Harp in order to preserve its exclusion in the policy after undertaking defense of the claim against him is a question we have not been able to find answered in a decided case.

The insurance policy here involved undertakes “to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * ” and the husband, the driver of the insured car, is protected by .the policy. He is a third party beneficiary of a contract of insurance between the owner of the car and the insurance company, and it seems to us that his rights in such circumstances should not exceed the rights of the named insured. The driver’s rights are derivative rights; they stem from the contract of insurance between the car-owner and the insurance carrier, and are governed by it and subject to its exclusions. We conclude, therefore, that the insurance carrier was not required to obtain a non-waiver agreement from Harp, but could rely on the non-waiver agreement it obtained from its named insured, the other party to its insurance contract, to save its right to assert the exclusion in the policy as a defense to the present action against it where the named insured and the additional insured are sued jointly, as here.

The judgment is reversed and judgment directed to be entered for the appellant.

All concur.