author: STORCKMAN, Judge.

text:
    Anita ARTSTEIN, a Minor, by Isabel Artstein, Her Next Friend, Respondent, v. Norman PALLO, a Minor, by Betty Pallo, Guardian ad litem, Appellant.
    No. 50432.
    Supreme Court of Missouri, En Banc.
    April 12, 1965.

      Feigenbaum & O’Rourke and Max M. Librach, St. Louis, for respondent.

      Norris H. Allen, Anderson, Gilbert, Wol-fort, Allen & Bierman, St. Louis, for appellant.
   STORCKMAN, Judge.

This action seeks damages in the sum of $50,000 for personal injuries received by the plaintiff while a passenger in an automobile, owned and operated by the defendant, which collided with a tree. The jury returned a verdict in plaintiff’s favor for $500. The plaintiff’s motion for new trial on the issue of damages only was sustained. The defendant appealed and here contends that the trial court erred in sustaining plaintiff’s motion for new trial and ordering a new trial on the issue of damages only in that the ruling perpetrates an injustice on the defendant and is an abuse of discretion under the facts of this case.

On July 20, 1960, at about 8 p. m., the defendant Norman Pallo, aged 16, called at the home of the plaintiff Anita Artstein, aged 17, in St. Louis County and invited her to go with him to the Meadowbrook Country Club. Norman was driving a 1960 Chevrolet Corvette, a two-passenger sports car equipped with bucket seats. He had been licensed to operate motor vehicles since the previous November. Anita was attending her younger sister while her parents were away, but she consented to go with Norman. On the way they met two of their friends and schoolmates, Harriett Tureen and Henry Friedman, who joined up with them. A party was going on at the country club and the group had something to eat but did not drink any intoxicating liquor. Upon leaving the clubhouse, all four of them got into the Corvette and after driving around the grounds for awhile they started driving toward the plaintiff’s home.

The accident occurred on U. S. Highway 40 near Mason Road in St. Louis County at which place the eastbound and westbound concrete traffic lanes are separated by a median strip on which there are shrubs and trees. The defendant was driving east on the highway at a speed of 90 to 100 miles per hour according to the plaintiff. The defendant’s last recollection of his speed was about 70 miles per hour which was the posted speed limit at that point. The plaintiff testified that as they approached the scene of the accident a westbound automobile entered a crossover, made a U-turn and headed back east. It had completed the turn and was traveling eastward in the right-hand lane when the defendant’s automobile was approximately 400 feet distant and traveling in the left lane of the eastbound pavement with no other vehicle ahead of it. When he was about 200 feet from the crossover, the defendant suddenly applied his brakes. The automobile veered to the left, skidded sideways onto the median strip and hit a tree. The plastic body of the car disintegrated and its occupants were thrown through the air over the westbound pavement onto a grassy plot north of the highway. The defendant, Harriett, and Henry were rendered unconscious and remained so for several days. They suffered retrograde amnesia and could not remember anything as to how the accident happened or for an interval prior thereto.

The plaintiff was not rendered unconscious and saw the others lying near her. She felt pain in her left hand, right arm, and low back but could not arise when she tried to do so. When help arrived an ambulance was called and plaintiff was taken to the County Hospital. Several hours later she was taken to Jewish Hospital where she remained for one week. Her right arm was in a cast for six weeks and thereafter she had physical therapy at Jewish Hospital until sometime during the following school year. Her principal injuries were a comminuted fracture of the right olecranon process of the right elbow with some impaction of the fragments, a brain concussion, and a contusion of the back, a fracture of the tip of a finger on her left hand, and various contusions and abrasions. Some of the injuries still bothered her at the time of trial. There was no proof in this case of medical and hospital bills. The measure-of-damages instruction was limited to past and future pain and suffering.

The defendant pleaded contributory negligence on the plaintiff’s part in that she voluntarily entered and became a passenger in the Corvette that was so overcrowded that the defendant was unable to reasonably and properly operate, guide and steer the automobile. The defendant put in evidence a photograph showing the seating arrangement of an identical 1960 Model Corvette. There were two bucket or individual seats about four inches apart. The overall inside width of the seating compartment was about 49 inches. Henry Friedman, 5 feet 11 or 6 feet tall, weighing about 185 pounds, and said by one of the witnesses to be “big all' over”, occupied the bucket seat on the right, and Harriett Tureen was seated on his lap. The defendant was in the left seat and the plaintiff, who weighed 120 pounds, was between him and the two other occupants. The plaintiff testified she was not crowding the defendant, but he testified he had difficulty turning the steering wheel because of the crowded condition. The issue of contributory negligence was submitted to the jury by an appropriate instruction. The verdict for $500 was returned by nine jurors.

The plaintiff’s motion for new trial contained three separately numbered assignments which asserted that the assessment of damages by the jury was (1) against the weight of the evidence, (2) so grossly inadequate that it was against all of the evidence, and (3) so grossly inadequate that it was against the weight of the evidence and was the result of bias, passion, prejudice and misconduct on the part of the jury. The ruling on the motion was that: “Plaintiff’s motion for new trial on the issue of damages only filed on June 28, 1963 and -heard on September 6, 1963, is hereby sustained and a new trial is ordered in the cause on the basis of damages only.” The order does not specify on which of the grounds the new trial was granted contrary to the requirements of Civil Rules 75.01 and 78.01, V.A.M.R. Thus, the appellate court and the parties are without information as to the real basis or particular reason why the trial court sustained the motion and an effective review of the grounds actually relied on by the trial court is hampered by the lack of specification.

The trial court's failure to specify of record the ground or grounds upon which the new trial was granted raises the presumption that the trial court erroneously sustained the motion for new trial and casts upon the respondent the burden of supporting such action, but the burden is met if the respondent demonstrates that the motion should have been sustained on some ground alleged therein. Civil Rule 83.06(b), V.A.M.R.; Young v. Hall, Mo.App., 280 S.W.2d 679, 680 [1]; Goodman v. Allen Cab Co., 360 Mo. 1094, 232 S.W.2d 535, 537 [1, 2]; Johnson v. Kansas City Public Service Co., 360 Mo. 429, 228 S.W.2d 796, 797 [1, 2].

The appellant contends that the verdict of the jury indicates an intention to find for him rather than a failure to award adequate damages to the plaintiff and that the granting of a new trial on the issue of damages only is an injustice to him and an abuse of discretion because the evidence is such that the verdict cannot be divided into good and bad portions and the new trial should have been granted on all issues. On the other hand, the respondent asserts that the trial court properly limited the new trial to damages only because all the evidence indicated that the accident was caused solely by defendant’s negligence and there was no evidence that plaintiff’s negligence proximately contributed to cause the occurrence so there was no issue of liability to try. Further the respondent contends that the evidence demonstrates that the new trial was granted because of inadequacy of the damage award and the court’s order will not be disturbed since there is no special finding by the trial court that the verdict was a result of passion, prejudice or other misconduct of the jury.

In written and oral argument by way of explaining the verdict, respondent’s counsel stated that the jurors might have awarded the respondent “a very small judgment, even though she [was] entitled to a much larger one” because they concluded that the respondent and her parents were wealthy and did not need the money since they lived in a place in St. Louis County known as “millionaires’ row”, and since she attended an eastern college and had been at a country club on the night of the accident. During oral argument respondent’s counsel conceded that such behavior would be misconduct on the part of the jury but insisted that it was not of a kind of which the defendant could complain.

The record does not bear out respondent’s claim that there was no showing of contributory negligence or its causal connection. As previously stated, there were four persons of adult size riding in a seating space designed for two. “The failure of a guest to exercise ordinary care for his own safety may consist of his voluntarily riding in an overcrowded motor vehicle. In a few cases involving an action brought by a guest against the driver or owner of a motor vehicle for injuries sustained in an accident proximately resulting from the overcrowded condition of the vehicle, it was held under the circumstances that the guest was guilty of contributory negligence as a matter of law in riding in such vehicle. Ordinarily, however, the question of the contributory negligence of the guest in such respects has been held to be one for the jury.” 8 Am. Jur.2d, Automobiles and Highway Traffic, § 544, p. 102. In Price v. United States, D.C., 50 F.Supp. 676, 679 [7], the court held that a passenger was guilty of contributory negligence as a matter of law where there were ten passengers in a taxicab, three of which were in the front seat with the driver. In Lorance v. Smith, 173 La. 883, 138 So. 871, 876 [7], a guest or gratuitous passenger was held guilty of contributory negligence where four people were crowded into a coupe. The evidence in this case was sufficient to permit an inference by the jury of contributory negligence.

The jury could also reasonably find from the evidence that the overcrowding proximately contributed to cause the accident and injury. It is common knowledge that overcrowding in a driver’s seat interferes seriously with reasonable control of an automobile especially in the event of an emergency. McIntyre v. Pope, 326 Pa. 172, 191 A. 607, 608 [4], See also Annotations in 44 A.L.R.2d, p. 248, § 3, and 104 A.L.R., p. 314. Furthermore, the defendant testified that the crowded condition interfered with the arm movements necessary to operate the automobile properly. See La Fata v. Busalaki, Mo., 291 S.W.2d 151, 154 [3].

We are not called on to decide whether the respondent was guilty of contributory negligence as a matter of law. We do hold that there was substantial evidence of contributory negligence and its causal connection. The defendant’s liability in this case depends on two issues; not only the defendant’s negligence, but also the plaintiff’s freedom from contributory negligence. The respondent’s contention that there was no issue of liability to try is without merit.

The respondent’s other contention is that, since the evidence tends to prove that the verdict is grossly inadequate, the trial court’s grant of a new trial on the issue of damages only should not be disturbed because there is no special finding that the verdict was the result of passion, prejudice or other misconduct of the jury. Since the trial court failed to specify the grounds on which the new trial was granted, the ground of misconduct of the jury is not eliminated as a possible basis for the court’s ruling. If the jury was actuated by passion, prejudice or other misconduct, the new trial should not be restricted to damages alone. As stated in Taylor v. St. Louis Public Service Co., Mo., 303 S.W.2d 608, 612: “We have the view, therefore, that it may not be soundly argued that inasmuch as the jury found defendant liable for plaintiff’s injury there was no passion, prejudice or misconduct involved in arriving at the ‘liability portion’ of the verdict. The fallacy in such an argument is that merely because plaintiff was not prejudiced by the liability portion of the verdict does not mean that it was not pervaded by the same misconduct and actuated by the same passion and prejudice as was the ‘damages portion’ of the verdict.”

Our practice of permitting a new trial on less than all the issues is a salutary one if judiciously applied in situations where it is clear from the record that one or more of the issues have been properly considered and determined, and that a new trial limited to the remaining issues will not result in prejudice or injustice to a party. Civil Rules 78.01 and 83.13(c), V.A.M.R.; §§ 510.330 and 512.160, RSMo 1959, V.A.M.S.; Underwood v. Brockmeyer, Mo., 318 S.W.2d 192, 195 [11]; Ziervogel v. Royal Packing Co., Mo.App., 225 S.W.2d 798, 806 [13]; 39 Am.Jur., New Trial, §§ 21-24, pp. 44-48 ; 66 C.J.S. New Trial § lib, p. 90; Annotations 85 A.L.R.2d, p. 32, § 10, and 29 A.L.R.2d, pp. 1209-1214, §§ 6-10.

There is a distinction between an award of grossly inadequate damages and an award of substantial but still inadequate damages. An award of grossly inadequate damages has been held to be convincing evidence that the jury was actuated by bias, prejudice or other misconduct. Boschert v. Eye, Mo., 349 S.W.2d 64, 66-67 [5, 6]; Taylor v. St. Louis Public Service Co., Mo., 303 S.W.2d 608, 611-612 [5]; Brown v. Moore, Mo., 248 S.W.2d 553, 558-560 [7-9]; Davis v. City of Mountain View, Mo.App., 247 S.W.2d 539, 541 [3, 4].

The parties agree that, if the plaintiff is entitled to recover at all, the award of damages is grossly inadequate. We can only speculate as to what actuated the jurors who returned the verdict. On the record before us, the verdict does not bespeak a proper determination of liability and also an award of adequate damages. We cannot say with certainty that the jurors did not slight the determination of one or both of these necessary elements and, in effect, return a compromise verdict. We would be naive indeed to assert with confidence that the jurors properly considered and determined the issue of liability solely because, under the law as given them in the instructions, they were not warranted in awarding even nominal damages unless they found the defendant to be liable. We must conclude that there was misconduct on the part of the jury which justifies a new trial and that the new trial should be on all issues.

Where passion, prejudice or misconduct on the part of the jury affects the trial of one issue, the judgment and verdict must be set aside entirely and a new trial granted on all issues even though the plaintiff moves for a new trial on the issue of damages only. Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 729 [7]; Boschert v. Eye, Mo., 349 S.W.2d 64, 67 [7]; Taylor v. St. Louis Public Service Co., Mo., 303 S.W.2d 608, 612 [9]. The trial court abused its discretion in limiting the new trial to the issue of damages only.

The judgment is affirmed insofar as it grants a new trial but reversed insofar as the ruling limits the new trial to damages only and the cause is remanded for a new trial on all issues.

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

DALTON, J., not sitting.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Glenn S. McCRORY and Frieda P. McCrory, Plaintiffs-Respondents, v. Charles A. BRINCKMANN and Charles Donald Brinckmann, Defendants-Appellants.
    No. 50889.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.
    Morgan M. Moulder, Camdenton, for respondents.
    Orville C. Winchell, Lebanon, for appellant.
   BARRETT, Commissioner.

In 1956 the appellants Charles A. and Charles Donald Brinckmann (father and son), as owner-lessors, and the respondents Glenn and Frieda McCrory entered into a “Lease With Agreement To Sell” a residence property in Camden County. The lease was for ten years from September 1, 1956, and provided for a rental of $125 a month. Within the ten-year period the agreement gave the lessees “the option of purchasing said premises” for $32,600 and provided in the event the lessees exercised the option that the rent payments were to be applied on the purchase price. In that same paragraph there was a provision that the lessees might execute a note and deed of trust in payment of any balance due on the purchase price upon their election to exercise the option. There were several provisions relating to insurance on the property and the total destruction of the residence “by any casualty of any nature.” As to insurance it was provided in a separate paragraph that the lessors, the Brinck-manns, “may maintain such insurance as they so elect at their own expense to insure any loss of equity which they have in said premises at the time of the loss.” And likewise it was provided in the same sentence that the lessees, the McCrorys, “may insure their respective interest and their equity in said premises accordingly.” And it was specifically agreed that each party should “pay for their own insurance.” Another paragraph provided, in the event of total destruction of the insured property, that “the insurance which is in force by each party, respectively, shall compensate and adjust to each of the parties their respective interest at the time of the casualty” and, in the same sentence, it was agreed that the lessees, the McCrorys, “may elect to take under the option and acquire title to the property in fee simple” and in the event the property is totally destroyed the lessors agree to “claim any balance which is then due to them” during the period of the lease and “they will carry sufficient and adequate insurance to protect the unpaid balance.”

Pursuant to this agreement the McCrorys moved into the property and over the years made the monthly payments of $125 and as their potential equity increased they increased the amount of their insurance. And at the same time as the years passed the lessors decreased the amount of their insurance on the property. On December 7, 1962, after the lessees had made monthly payments totalling $9500 the property was destroyed by fire. On that date the Mc-Crorys carried $12,500 insurance on the residence and the Brinckmanns carried $20,000 insurance. The value of the lot without the residence was $3500 and the McCrorys valued their equity in the property before the fire at $17,500. On January 22, 1963, the McCrorys notified the Brinck-manns of their election to exercise the option to purchase the property and demanded that they cause the warranty deed to be delivered from escrow and otherwise comply with the terms of the agreement, and particularly with the provisions relating to insurance. Upon the lessors’ refusal to recognize the option the McCrorys instituted this action in specific performance.

At the conclusion of the trial and upon the appellants’ request the court made specific findings of fact and conclusions of law. Insofar as material to this appeal the court concluded that the agreement was so clear and unambiguous that there was nothing for the court to construe and consequently the court found that the lease gave the respondents an absolute option to purchase the property. In this connection the court found that upon exercise of the option the agreement provided for two methods of paying the balance of the purchase price, one, by executing a note and deed of trust and, second, in the event the property was totally destroyed by fire “payment of the balance due would be acknowledged by the defendants from the proceeds of their insurance policy.” And finally, in its judgment the court decreed that the deed conveying fee simple title be delivered to the Mc-Crorys. The Brinckmanns appealed and since the case involves the title to real estate (Const.Mo. Art. V, § 3, V.A.M.S.) the Springfield Court of Appeals transferred the cause to this court. McCrory v. Brinckmann, Mo.App., 379 S.W.2d 882.

The only question for determination is whether the option provided in the “Lease With Agreement To Sell” is conditional or absolute. While one of the parties cites Skelly Oil Company v. Ashmore, Mo., 365 S.W.2d 582, it should be noted that this appeal is not directly concerned with the proceeds of the insurance policies. It may be said in passing, however, that the implication of that case is that any loss by reason of the destruction of the property would fall on the vendor-owners. The Skelly Oil Company case has been commented on in 28 Mo.L.R. 641; 8 St.L.L.J. 266; 112 Pa.L.R. 305; and 39 No.D.L.R. 351. While this court-tried equity case is reviewable anew in this court (Sup.Ct.Rule 73.01, V.A.M.R.), other issues in the trial court and not necessary to be considered in the disposition of this appeal are deemed to have been waived. Brackett v. Easton Boot & Shoe Co., Mo., 388 S.W.2d 842. As stated, the question presented here is whether the option is conditional as the appellants contend or absolute as the respondents contend and as the court decreed. The appellants state the problem and their contention in this language in the only point briefed and argued: “The Court improperly found, as set out in its Conclusions of Law, that the plaintiffs had a right to exercise their option to acquire fee simple title; that in fact, the plaintiffs did not have an absolute right but had a conditional or preferential and not an absolute option to purchase.” The appellants argument is that when two sections of the agreement are considered it is obvious that the option is conditional and dependent on the lessor-owners’ desire to sell. These two sections of the agreement are paragraph 6 relating to the insurance each party is to carry, as above noted, and paragraph 8 relating to a casualty rendering the property unfit for occupancy and providing that the lessees “may elect to terminate the lease agreement” and specifically providing that “this section shall be construed to be optional on the parties of the second part (lessees) only”.

But in this case and upon this record it is not deemed necessary to consider in detail the extrinsic circumstances (De Witt v. Stotts, Mo., 265 S.W.2d 398), as the court indicated, the terms of the agreement are clear and unambiguous and even though it provides alternatives there is no conflict in the provisions. Construing the agreement as a whole and the option clause, lessees “shall have the option of purchasing said premises,” in its context (Stein v. Reising, 359 Mo. 804, 224 S.W.2d 80) there can be no doubt that an absolute and unconditional option was granted. Neither is it necessary to examine into the rationale of the cases or in the circumstances of this case to carefully examine the contract document and indicate the corroborating and compelling characteristics of the various provisions. For general information there are these relevant annotations and they have been noted in all the cases cited throughout this opinion: 127 A.L.R. 894 “Option for renewal of lease or for purchase as conditional upon optionor’s purpose to lease or sell property,” 6 A.L.R..2d 820 “Granting to lessee of ‘first’ privilege or right to re-lease or to renewal or extension of tenancy period as conditioned upon lessor’s willingness to re-lease,” and particularly 34 A.L.R.2d 1158 “Grant to lessee of first privilege or right to purchase leased premises as constituting absolute or conditional option.”

In De Witt v. Stotts, supra, the provision was “lessees to have first option of purchasing.” The provision was first examined apart from its context and it was said that the language “plainly granted a conditional or preferential and not an absolute option to purchase.” Then the provision was considered in the light of the extrinsic circumstances and it was held that they did not change the situation. In Stein v. Reising, supra, the agreement was that “Lessee will be given first option to purchase.” Again the language was considered separately, then in context and finally in view of all the circumstances. It was there pointed out that however these cases were determined “the consequence is bound to be harsh to the losing party.” Nevertheless, it was held that the option in that lease was preferential or conditional, not absolute. But the option clause involved in this lease upon this appeal is not comparable to the options involved and construed in those cases.

In Lusco v. Tavitian, Mo., 296 S.W.2d 14, the problem was whether there had been a proper and timely acceptance but it was assumed by everyone that the language “the lessor does hereby grant to lessee an option to purchase” at a specified time on specified terms was an absolute and unconditional option entitling the optionee to specific performance. Likewise in Hathaway v. Nevitt, 358 Mo. 202, 213 S.W.2d 938, it was pointed out that the payment of rent constituted the consideration for the option and it was assumed that the language “hereby grants to the said party of the second part (plaintiff) an option to purchase said property for $7500 before it is sold to anyone else” was unconditional and absolute. In Chapman v. Breeze, 355 Mo. 873, 198 S.W.2d 717, it was again assumed that an absolute option was given in a. lease providing that “Party of the second part (lessee) to have an option to purchase all of said real estate at the price of $1600.00.”

In addition to these cases in which it was assumed that an absolute option had been granted, in Cummins v. Dixon, Mo., 265 S.W.2d 386, 47 A.L.R.2d 441, there were several relevant provisions, as there are in this case, but the principal one said “Lessor hereby gives the lessee the right and option to purchase the demised premises” during the term of the lease for the sum of $45,000. And in that case this court in reversing a trial court judgment for the lessor held “that the option to purchase was an integral part of the lease.” And so it is here “the parties of the second part shall have the option of purchasing said premises, herein-before described, for the price of $32,600” is an integral part of the “Lease With Agreement To Sell.” And the language of the provision is comparable to that involved in the cases in which it was assumed that an absolute option had been granted and indeed it is almost identical with the language in the Cummins case. And in the context of the agreement it is an absolute and unconditional option and the respondents, having given the proper notice, were entitled to specific performance as the court decreed. For the indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Judge.

text:
    Fred S. CHAPPELL and Edna E. Chappell, Respondents, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Appellant. Earl and Earleene HATFIELD, Husband and Wife, B. F. and Lela H. Flanigan, Husband and Wife, Dale and Virgie Sissel, Husband and Wife, Don R. and Betty Rader, Husband and Wife, Emerson and Helen M. Taylor, Husband and Wife, John and Vivian Jackson, Husband and Wife, Junior and Hazel J. Yenicheck, Husband and Wife, Dwight and Bessie Hutchinson, Husband and Wife, Charles and Ruth V. Hutchinson, Husband and Wife, Respondents, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Appellant.
    No. 50473.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      White, Dickey & Skelton, Turner White, Springfield, Lincoln, Haseltine, Keet, Forehand & Springer, Horace S. Haseltine, Springfield, for respondents.
    John B. Newberry, Springfield, for appellant.
   EAGER, Judge.

This appeal arises from the trial of two consolidated actions in each of which the plaintiffs charged the defendant city with the operation of a continuing nuisance in connection with its sewage disposal plant southwest of the city. One suit was instituted by Fred S. Chappell and his wife, the other by nine different married couples. These various plaintiffs were the owners of separate tracts in the vicinity of the plant, located in various directions and at various distances from it. The distances varied from one quarter of a mile to one mile, and the directions from south to southwest to northwest to north to southeast. Their tracts varied in size from relatively small suburban tracts to farms well in excess of one hundred acres. All lived on their respective tracts and all the homes were modern dwellings. The trial was had in Dallas County on changes of venue, and this appeal is from an order granting a new trial to the respondents, after verdicts for the appellant.

In 1959 the City of Springfield completed the construction of a new sewage disposal plant on a forty-acre tract a few miles southwest of the city; it cost approximately $3,300,000, and a much larger bond issue was passed in order to permit rehabilitation of the sewer system generally. This was located in what was essentially a farming area but it has, as stated, become a mixed area of farms and suburban homes with substantial acreage. The plant went into full operation in January, 1960. It is described as an “activated sludge treatment plant,” specially designed for Springfield, with the “Kraus” process designed into the system for the purpose of taking care of heavy industrial waste. The latter process is not more specifically described. The plant was described by plaintiffs’ expert as a good one, with a question as to a lack of capacity in certain respects. The main sewage line to the plant runs for approximately four miles from an old disposal plant.

In 1960 all these same plaintiffs filed ten separate suits against the city, claiming damages for the creation of a temporary nuisance by reason of the odors created and distributed by this disposal plant. Nine of the cases were consolidated; the trial resulted in nine separate verdicts of $4,000 against the city, being one for the owners of each tract. On appeal, the judgment in that case was affirmed on the theory of temporary nuisance. Flanigan v. City of Springfield, Mo., 360 S.W.2d 700. The Court there said at loc. cit. 703-704 (quoting in part): “Later, that court in Hillhouse v. City of Aurora (1958), Mo.App., 316 S.W.2d 883, 887, approved and followed the Newman case [Mo.App., 292 S.W.2d 314], supra, and stated (loc. cit. 888 [3]) r ‘Where riparian landowners seek to treat as temporary and abatable the damage resulting from operation of a permanent municipal sewer system * * *, and where the temporary and abatable character of the nuisance and resulting damage is not conceded expressly or in necessary effect (contrast the Newman case, supra), we think that recovery by the landowners, as for damage resulting from a temporary and abatable nuisance, should be permitted only upon evidence from which the triers of the facts fairly and reasonably may infer, and actually do find, that it would have been both scientifically possible and reasonably practicable for the offending municipality to have abated the nuisance when the landowners’ cause of action accrued.’ * * * In these circumstances we conclude it was a jury question whether it was scientifically possible and reasonably practicable for defendant to have so operated its plant that foul and noxious odors would not have escaped therefrom.” The evidence there was very similar to the evidence here, except for matters which we shall specifically mention. That judgment was satisfied, releasing all damages to and including March 27, 1961, and a settlement was made with the Chappells (whose case was not tried) on the same basis.

In this suit all plaintiffs claim damages separately for a continued and continuing nuisance from the odors created by the plant since March 28, 1961. They allege in substance (omitting formalities and nones-sentials) that: defendant has caused and permitted foul and noxious odors and gases to emanate and escape from its plant, which are carried by normal air currents over the properties of plaintiffs; that the plant incorporates all modern designs and developments necessary to prevent such odors from existing beyond the boundaries of defendant’s tract and that it was and is “scientifically possible and reasonably practicable” for defendant to so operate its plant; all to the damage of plaintiffs in modes to be mentioned later and in varying amounts. In one petition it was alleged that the plant had been overloaded from its inception, particularly in its “digester” capacity, and that “sludge” is deposited in a sludge bed on the plant site which adds to the noxious odors. Upon the trial the jury returned ten separate verdicts for the city and against each separate pair of plaintiffs. Subsequently, the Court granted new trials as to all plaintiffs except the Hat-fields, the Flanigans and the Sissels, on the stated ground that the verdict was “contrary to the weight of the evidence.” From that order the defendant has appealed. Those plaintiffs whose motions were overruled have not appealed, and they are not to be considered on this appeal.

The points made here by appellant city may be stated as follows: that its motion for a directed verdict at the close of all the evidence should have been granted because the evidence of plaintiffs and of their experts demonstrated that the odors came either from defendant’s plant or from “sludge” spread on neighboring fields (which latter phase will be mentioned in discussing the evidence), that all the evidence was so indefinite that a determination of the cause or source could only be arrived at by speculation, and that the existence of odors from spreading the sludge on the fields was not an issue; also, that any discretion residing in the trial court for the granting of a new trial on the ground assigned was arbitrarily exercised, since it granted new trials to some plaintiffs and denied them to others.

The respondent plaintiffs assert: that defendant’s motion for a directed verdict was insufficient (to which we shall refer later) ; that all plaintiffs made clearly submissible cases; that it was within the Court’s discretion to grant new trials to some plaintiffs and not to others; and, that the noxious odors created both at the plant and by spreading the sludge were wrongful acts. We have jurisdiction, since the claims of the present plaintiffs aggregate well over $100,000.

Our consideration will necessarily involve a review of the evidence to determine whether, in fact, these plaintiffs made submissible cases. Where the Court grants plaintiffs a new trial upon the ground that the verdict is against the weight of the evidence, an appellate court will not ordinarily interfere if there was substantial evidence to justify the submission of the case to the jury and to sustain a verdict for the plaintiffs. Allman v. Yoder, Mo., 325 S.W.2d 472; Berry v. Harmon, Mo., 323 S.W.2d 691; Andres v. Brown, Mo., 300 S.W.2d 800; Graves v. Atchison, Topeka & Santa Fe Ry. Co., 360 Mo. 167, 227 S.W.2d 660. We examine the submissibility in view of the issues submitted. All-man, supra. We need not dwell here on the latitude permitted trial courts, generally, in such matters. Madsen v. Lawrence, Mo., 366 S.W.2d 413.

At some time after the completion of the plant the city began hauling its “sludge,” which is the solid or semi-solid product remaining after the treatment process, out to neighboring fields in tank trucks and spreading it. This was one of two or three methods of disposition and the practice was followed, of course, only on those tracts where the owners wanted and accepted the sludge as a fertilizer or soil conditioner. Three of the plaintiff couples accepted this product, and much was spread an other fields in the neighborhoods o£ the various plaintiffs. The amended petitions did not charge that these acts of defendant constituted any part of the nuisance. When the subject arose during the trial, plaintiffs sought leave to amend, but this was refused on defendant’s objections. Consequently, the issue submitted to the jury was whether plaintiffs had been damaged by reason of the fact that defendant had “permitted or caused foul and noxious odors to escape from its plant * * when it was “scientifically possible and reasonably practicable for defendant, City, so to have operated the said plant * * * ” that the odors could have been eliminated. The apparent theory of the trial court, necessarily adopted by the parties, was that defendant might be held liable for offensive odors escaping from its plant or from the sludge beds on its own tract, but not for odors from sludge spread elsewhere; this, for the reason that no such claim had been pleaded and that it would be unfair to so broaden the issues during the trial. Defendant seems to concede that plaintiffs produced substantial evidence to show that offensive odors were allowed to escape from the plant, but it insists that there was also evidence of odors from the sludge spread on the fields, and that the jury could not differentiate or establish the causation without speculation. Thus, counsel say, Appellant’s Brief, p. 9: “Where, as here, Respondent has produced testimony of their own which would be sufficient to support two different theories for the cause of the injuries complained of and where only one cause for such injuries is plead and relied on in the Petition, it is error to submit such a cause of action to the jury.” From this point we must examine the evidence. Under this procedural situation we consider the evidence in the light most favorable to plaintiffs, and give them the benefit of all favorable reasonable inferences therefrom. City of St. Charles v. DeSherlia, Mo.App., 308 S.W.2d 456, 459; Southwestern Bell Telephone Co. v. Dean Construction Co., Mo., 370 S.W.2d 270, 274.

Plaintiffs produced as a witness a highly qualified engineer specializing in sanitary engineering; he had visited the plant on several occasions during the period in question, and had examined both its plans and specifications and its monthly operating reports, with full cooperation from the city. The following recitals constitute the substance of his testimony, for our present purposes. “Septic” sewage means that which is devoid of oxygen, often dark and with an offensive odor; this witness was of the opinion that “septic” sewage had entered the plant, although what he saw “bordered” on being septic; sewage will become septic from warm weather and from a long run in sewer pipes, and the run here from the old plant was about four miles; in the “aeration” process septic sewage would give off various gases with foul odors; here, gases had also escaped through water seals on top of the “digesters,” which could have been prevented by drawing off the gas when the pressure got too high; septic conditions can be prevented by the use of chlorine in the sewer lines, or by the use of ozone or ferrous sulphate, and perhaps by other methods; that, if handled properly, the “pre-aeration process” would not release odors; that the reports of the plant indicated that the sewage was not kept in the digesters for a sufficient time (35 to 55 days) and that it was unstable, having too high a percentage of volatile material, and that this will give off a “slight odor”; that on many days (judging from the records) the plant had received “very strong sewage”; that in his opinion odors had existed at the “influent pipe” where the sewage enters; there was also the “possibility” of the escape of gases from the digesters; and there were some odors from the unstable sludge (much of which was placed in sludge beds on the plant property); that if the sewage was not septic, there should be no odors away from the plant site; that hydrogen sulfide, the gas often expected, turns lead acetate dark; that the sludge would have a musty, tarry smell when spread, but as it dried it would become a “stable humus”; that people would ordinarily learn the characteristic odor of the sludge; that if people had smelled an odor of hydrogen sulfide in large quantities or a smell like rotten eggs he would be “inclined to be suspicious of the plant”; and, if it was a “gassy” smell he would “suspect” that it came from the plant. This witness stated that there had been an improvement in the operation of the plant since June, 1962. (This case was tried in July, 1963.)

A retired science professor, Dr. Otto Smith, who had specialized in water and sewage work, corroborated some of the foregoing. Essentially, he testified: that there were odors both from the gases in the plant and from the sludge; that the former could be eliminated by watching the incoming sewage and treating the sewer lines; that the human nose is more sensitive to hydrogen sulfide than are the lead acetate tests.

The various plaintiffs testified in detail, some very graphically, about the odors they had encountered more or less continuously since March 28,1961. One (Mrs. Chappell) had kept notations of the days on which they were offensive, including approximately ninety such occasions; she lived three-fourths of a mile north of the plant where she got the effect of the prevailing southerly winds coming up a draw. She described the odors as like “out door privies”; her records were admitted in evidence. This witness testified that at various times she was awakened in the night by these odors, got up and closed the house and sprayed with a deodorant; that at times visitors would leave her home on account of the “sewage odors”; that they were sickening, and that they came from the direction of the sewage plant with southerly winds. Sundry other plaintiffs testified in like manner that the odors were very offensive, that they were embarrassed to have company, that their meals and sleep were interfered with, that the smells were “sewage” smells, putrid, nauseating, “gassey” smells, and like the odor at the plant. Some noticed the odors more at night. One family had put, its home up for sale on account of the odors. Some thought the smells were less frequent in recent months, but just as bad when they did come; one witness, however, testified that he had smelled the odors 57 times in 1963. The evidence would justify a finding that the odors had seriously interfered with the enjoyment, by plaintiffs, of their homes. Several of the plaintiffs testified definitely that they had become familiar with the smell of sludge spread on the fields; that it was a “musty” or “tarry” smell, and not similar to the nauseating, raw sewage smells about which they were complaining and which some of them had smelled at the plant.

Statements from the deposition of Mr. Paul Hickman, Chief of Sanitary Sewage, indicated: that a chemical had been placed in the lines at the old plant upon occasions, for odor control; that “We had lots of odor”; that the sewage became slightly septic in certain instances, but that the odors had occurred only “in spots” since July or August, 1962; that the chemical was used when they were “going to have a tour,” presumably visitors at the plant.

We need not notice defendant’s evidence, except as it may have aided the plaintiffs. It was shown that papers soaked in lead acetate and painted boards were not discolored when placed on fences, etc., surrounding the plant, but that on many occasions those placed near the pre-aeration tanks turned dark from contact with hydrogen sulfide; this place was where the raw sewage came into the plant. From Mr. Hickman’s testimony it further appeared: that the sludge had continued to contain a higher than normal percentage of volatiles; that there had been odors at the plant a few times since March, 1961, and that the designing engineers had recommended that the “biochemical oxygen” capacity should be increased; that it was not unlikely that at “low flow” the sewage was sometimes slightly septic; also, that the load of the plant had grown faster than was originally projected, and that the plant had reached, and at times exceeded, its design capacity. One of defendant’s witnesses, living about half a mile from the plant, testified that he had smelled the odors only a few times since March, 1961, but that on three or four occasions when it was “unbearable,” he called city or plant officials and the odor soon stopped, once within fifteen minutes.

At the close of plaintiffs’ case defendant offered an oral motion for a directed verdict which was denied. At the close of all the evidence its counsel again offered such a motion “on the grounds that the evidence, as adduced by the plaintiffs, and the inferences made by plaintiffs and the evidence presented by plaintiffs are so speculative that the jury cannot reach a determination as to where the source of the odors might have come from and, therefore, plaintiffs have not made a submissible case.” The motion was prefaced by the suggestion that it was made at the close of all the evidence, as in fact it was. The inadvertence in the motion was that counsel therein referred to the evidence of plaintiffs and the inferences therefrom, instead of to “all the evidence.” Defendant, citing the well-known rule that a defendant who offers evidence waives such a motion made at the close of plaintiff’s case, also says that this motion was merely a repetition of the previous motion made at the close of plaintiffs’ case which motion had already been waived, and that it was valueless; so that, counsel say, the question of whether all the evidence made a submissible case for plaintiffs was not brought to the attention of the trial court. The cases cited approve the general rule, but they are not applicable on these facts. This was a rather inept motion, but we feel certain that the trial court understood, as do we, that counsel was attacking the submissibility of the case on all the evidence, and we shall so consider it. The basic reason for the motion was stated, and that was the same point which defendant briefs here. That question had been raised specifically by objections to evidence through much of the trial and it had also been considered upon plaintiffs’ request for leave to amend. There could have been no misconception on the part of the trial court. The point is rather technical and it is denied.

The parties argue pro and con as to whether the trial court abused its discretion in granting new trials to some of the plaintiffs and not to others. On this subject, generally, our Civil Rule 78.01, V.A. M.R. is very broad. It seems that those plaintiffs who were unsuccessful on their motions had permitted sludge to be spread on their land. We need not defend here the logic or illogic of this ruling. Those plaintiffs whose motions had been overruled did not appeal. They are entirely out of this case. If the Court committed error as to them, the defendant is not aggrieved by the ruling, having thus disposed of three of the claims against it. It may not complain here.

We merely decide whether there was substantial evidence to make out a submissible case for those plaintiffs who are respondents here. We conclude that there was. The issue was whether or not foul and noxious odors had been caused to come from the sewage disposal plant, and whether it was scientifically possible and reasonably practicable for the defendant to have prevented this. Defendant does not argue here the latter phase of the issue, only questioning whether there was sufficient evidence to permit the jury to decide, without speculation, whether the odors came from the plant. The trial court may only sustain a motion for a directed verdict; where the facts in evidence and the reasonable inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ. Justice v. East St. Louis City Lines, Inc., Mo., 375 S.W.2d 150; Nelson v. O’Leary, Mo., 291 S.W.2d 142; DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628. We recognize fully that, in considering such a question, issues which would rest merely in speculation and not on substantial evidence may not be submitted to a jury. Osterhaus v. Gladstone Hotel Corp., Mo., 344 S.W.2d 91; Thompson v. Jenkins, Mo., 330 S.W.2d 802. We need not review again the applicable evidence. Various plaintiffs had smelled the odors of the sludge after it was spread and they distinguished those from the odors of the plant; they testified also that the latter odors were far more offensive; these latter odors usually came with a wind from the direction of the plant; some of the plaintiffs had been at the plant and had smelled the odors there; the testimony of at least one of plaintiffs’ experts tended to establish that the more putrid odors came from the plant itself and that there were practicable and effective methods of eliminating them. In defendant’s evidence it was essentially admitted that there had been an odor problem at times, and that the plant had, at times, been operating beyond its capacity in certain respects. From all the evidence we are convinced that there was substantial evidence to justify the submission of the issue of the plant odors and damage therefrom; it was not necessary that the plaintiffs should prove that all odors they encountered at any time came from the plant. They were merely not permitted to recover in this case for any inconvenience or damage caused by odors from sludge spread on the fields. In view of our conclusions, we may not interfere with the exercise by the trial court of its discretion in granting new trials to the respondents and we hold that its discretion therein was not abused. It seems probable that before another trial the pleadings may be so amended as to avoid some of the controversy which has been present here.

If the readers of this opinion are, perchance, caused any discomfort by reason of its unsavory content, let them consider that the writer has been required to read and consider in detail several 'hundred pages of a more graphic description, and in cool weather with the windows largely closed.

The order granting new trials to respondents is affirmed.

All of the Judges concur.


author: STORCKMAN, Presiding Judge.

text:
    JACKSON COUNTY PUBLIC WATER SUPPLY DISTRICT NO. 1, Appellant, v. ONG AIRCRAFT CORPORATION, a corporation, City of Kansas City, Missouri, Hus W. Davis, Successor to H. Roe Bartle, Mayor of Kansas City, Missouri, Hugh G. Carr, Director of Water, Kansas City, Missouri, and Earl Brosnahan, Respondents.
    No. 50495.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      Charles W. Hess, Lynn C. Hoover, Terrell, Hess, Van Osdol & Magruder, Kansas City, and Henry Andrae, Hendren & And-rae, Jefferson City, for appellant.
    John L. Gaylord, Neil F. Cline, Kansas City, for respondent Ong Aircraft Corp.
    Herbert C. Hoffman, City Counselor, Ned Bahr, Asst. City Counselor, Kansas City, for respondents Kansas City, Ilus W. Davis, successor to H. Roe Bartle, Mayor of Kansas City, Mo., and Hugh G. Carr, Director of Water, Kansas City, Mo.
    Edward F. Aylward, Kansas City, for Earl Brosnahan Co.
   STORCKMAN, Presiding Judge.

This is a suit to enjoin the defendants from constructing and using water supply lines in a subdivision being developed in Jackson County. The plaintiff is a public water supply district organized pursuant to §§ 247.010-247.220, RSMo 1959, V.A.M.S., and as such is designated a political corporation of the State of Missouri. The defendant Ong Aircraft Corporation is the pro-motor and developer of the subdivision; the defendant Earl Brosnahan is the general contractor building the subdivision for Ong Corporation. The City of Kansas City, its mayor, and director of water are the other defendants. The plaintiff claims that it has the exclusive right to supply water to that portion of the new subdivision which is within the boundaries of the water supply district. The court made findings of fact and conclusions of law and entered judgment denying a permanent injunction against the defendants. The plaintiff has appealed.

At the outset we are confronted with an attack upon our jurisdiction. The appellant’s contention that this court has jurisdiction of the appeal is based solely on the ground that the amount in dispute, exclusive of costs, exceeds $15,000. Art. 5, § 3, Constitution of Missouri, 1945, V.A.M.S.; § 477.040, RSMo 1959, V.A.M.S. The appellant concedes that it does not seek a money judgment but relies on Ingle v. City of Fulton, Mo., 260 S.W.2d 666, 668, which states the rule that the amount in dispute must be determined by the value in money of the relief to plaintiff, or loss to the defendant, should the relief be granted, or, vice versa, should the relief be denied.

The appellant’s jurisdictional statement in substance is that the prayer of its petition seeks to enjoin the respondent City of Kansas City from supplying water to a subdivision of homes, known as Crossgates, which is in process of development with 177 lots platted within the territory of the appellant, that the average cost of water supply to appellant’s residential customers is five dollars per month, and, therefore, in one year’s time “after complete development of the subdivision”, the appellant’s loss or gain, depending on the outcome of the lawsuit, would be in excess of $10,000 per year, and that the “supply of water will extend over many years’ time, and at least until Appellant’s present water supply contract expires in 1981.” This expiration date is taken from plaintiff’s exhibit 1 which is a contract between the plaintiff Water Supply District and the defendant City of Kansas City, dated July 7,1961, evidencing the terms and means by which the District sold and conveyed to the “City all its facilities and property located within a part of its service area annexed by the City in 1961 and an additional .part annexed effective in 1963. The exhibit at page 10 states that the City agrees to sell to the District and the District agrees to buy from the City the District’s entire water supply for a period of 20 years from the day on which a certain part of the contract is performed.

No monetary amount is directly involved in this case. It is strictly a suit for injunc-tive relief. The petition states that the plaintiff will suffer irreparable damage and that “it will be practically impossible to ascertain with any degree of certainty the damages sustained by plaintiff because of said unlawful construction.” The prayer is for an injunction to restrain and enjoin the defendants from constructing and using the proposed water supply lines.

The evidence bearing on the question of jurisdiction tends to show that by reason of the extension of the city limits of Kansas City large portions of the District’s original service area have been detached and turned over to the City. The most recent detachment occurred pursuant to the contract of July 7, 1961, between the District and the City and a decree of the Circuit Court of Jackson County validating such action as provided by law. The final annexation and detachment established a boundary line generally along 119th Street which is the southern boundary of Kansas City and the northern limits of the City of Grandview. Ong Aircraft Corporation is the owner of an 80-acre tract of land that lies approximately one-half on each side of the 119th Street dividing line. This tract, known as Crossgates, has been subdivided into 372 building lots of which 195 are north of the boundary line in Kansas City and 177 are south of the line in the City of Grandview. The 195 lots located in Kansas City are not involved in this controversy. The 177 lots in Grandview are within the geographical area assigned to the plaintiff Water Supply District.

On October 18, 1962, a contract was entered into between Ong Corporation and Kansas City by the terms of which Kansas City agrees to supply water to the 177 lots located in Grandview through mains to be provided by Ong Corporation but which will eventually become the property of the City. On December 6, 1962, the plaintiff filed its injunction suit. On this appeal the Water Supply District claims the exclusive right to supply water to the Grandview portion of the subdivision by virtue of the contract with Kansas City dated July 7, 1961, and also pursuant to the provisions of Chapter 247, RSMo 1959, under which the District is organized. The District further contends that the right of Kansas City to supply water beyond its corporate boundaries is conditioned upon a compliance with § 386.250(7), RSMo 1959, and that the City has failed to comply with that statute.

The case of Ingle v. City of Fulton, Mo., 260 S.W.2d 666, relied on by plaintiff, was an action to restrain the defendant City from enforcing an ordinance prohibiting mining within the city limits of Fulton. The petition alleged that the plaintiff’s land located within the limits of the City contained fireclay of the reasonable value of $35,000. The plaintiff proposed to lease the land for the purpose of mining the clay for which he was to be paid in royalties. There was no showing in the record that the plaintiff would receive royalties in excess of the amount required to vest jurisdiction of the appeal in the supreme court. This court held that it was not the gross value of the fireclay on the land that controlled but the net value that the plaintiff would receive from the mining operation. The supreme court held it did not have jurisdiction and transferred the appeal to the Kansas City Court of Appeals. It is well recognized that it is the net value involved and not the gross amount that must be used in determining the monetary jurisdiction of this court. Powers v. Johnson, Mo., 302 S.W.2d 899, 901 [1].

For the supreme court to have appellate jurisdiction because of the amount in dispute, the record must affirmatively show with certainty that the amount in dispute, regardless of all contingencies, exceeds $15,-000, and this' court will not indulge in speculation and conjecture as to the amount in dispute or the value of the relief sought in order to bring a case within its limited appellate jurisdiction. State ex rel. Missouri-Kansas-Texas R. Co. v. The Public Service Commission of Missouri, Mo., 378 S.W.2d 459, 464[2]; Long v. Norwood Hills Corporation, Mo., 360 S.W.2d 593, 596[3]; Johnson v. Duensing, Mo., 332 S.W.2d 950, 953 [4-11]; Hogue v. Wurdack, Mo., 292 S.W.2d 576, 577[2]; Cotton v. Iowa Mutual Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246, 249 [3-4]; Yacobian v. J. D. Carson Company, Mo.App., 205 S.W.2d 921, 922[1], In Emerson Electric Mfg. Co. v. City of Ferguson, Mo., 359 S.W.2d 225, 228[2], this court held that the minimum jurisdictional amount must be affirmatively established by the record and the amount in dispute is not what may be affected by the result of the case but what is directly involved in the suit. This entire matter is the subject of an excellent and exhaustive treatise entitled, “Missouri Appellate Jurisdiction”, in the December 1964 Issue of the Washington University Law Quarterly. Chapter Nine, pages 618-709, of the symposium deals with the “amount in dispute” as a ground of appellate jurisdiction.

Regardless of the outcome of this litigation, the value of the right to supply water to the disputed area would still be subject to numerous contingencies. The City of Grandview might obtain an adequate source of water and elect to supply the residents of the area pursuant to §§ 247.160 and 247.170, RSMo 1959, V.A.M.S., just as Kansas City did in the territory it annexed and detached from the District. At the time of the trial, only one house had been built in Crossgates and none had been sold. When and in what manner the development of the subdivision will be completed is problematical. Any loss of water rates is prospective; no loss has been suffered to date. Even if we could overlook these and other contingencies, the net value of the right to supply water to the maximum of 177 users has not been shown. The estimated average water rate of five dollars per month for each residential customer is gross and there is no evidence of what the net amount would be. We cannot indulge in conjecture or speculation that future events would all be favorable and the jurisdictional amount be achieved without ignoring well-established standards for the determination of appellate jurisdiction. In the course of its written argument discussing irreparable damage as a basis for equitable relief, the appellant states: “Of course, it is impossible to forecast with any degree of accuracy how many houses will be located within [the] District and how much water will be consumed within any given period.” We are constrained to hold on the record before us that we do not have jurisdiction of the appeal. The waste of time and effort in deciding jurisdictional questions and the consequent delay in disposing of litigation on its merits is regrettable, but it cannot be avoided under existing constitutional provisions limiting the jurisdiction of the supreme court to specified categories of appeals.

The appeal is transferred to the Kansas City Court of Appeals.

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    L. J. LINDNER and Mrs. L. J. Lindner, Appellants, v. Earl SAWYER, Respondent.
    No. 50682.
    Supreme Court of Missouri, Division No. 2.

    April 12, 1965.

      John L. Keusenkothen, and R. P. Smith, Cape Girardeau, for appellants.
    Finch, Finch, Knehans & Cochrane, Jack O. Knehans, Cape Girardeau, for respondent.
   STOCKARD, Commissioner.

In plaintiffs’ suit for $25,000 damages for the wrongful death of their minor son the jury verdict was for defendant and plaintiffs have appealed.

On June 11, 1963, Michael Lindner, then three days less than nine years of age was playing with his sister in the yard of his home when Mr. Harry Thompson, Jr., a rural mail carrier, stopped at the mailbox across the road. Michael went to the edge of the road and waited for an automobile to go by. At the time the mail carrier was still at the Lindner mailbox. According to his sister Michael looked both ways and then started walking across the road. As Mr. Thompson pulled away from the mailbox he met defendant driving north in his automobile, and when the two automobiles were “practically equal” and about ten or fifteen feet from the mailbox, Mr. Thompson heard the sound of the brakes on defendant’s automobile. The left front portion of defendant’s automobile struck Michael and soon thereafter he died from the injuries received. Mrs. Lindner, Michael’s mother, testified that defendant told her that Michael “started to cross the road and he got part of the way across the road, and if he would have stayed there * * * he wouldn’t have hit him, * * * he seemed to freeze in the road and lie ran back in front of the car.” Mr. Herbert Riehn, a deputy sheriff, testified that defendant told him that he “saw the boy come out on the road, he thought he was going on across, that he more or less froze in the middle o-f the road, he thought he turned back in front of the car.” Mr. Riehn also testified that his estimate of the length of skid marks made by defendant’s automobile was 125 to 150 feet, and that the point of impact was “about midway of the skid marks.” Mr. Thompson had not seen Michael before he was struck by defendant’s automobile.

Plaintiffs’ case was submitted -to the jury on primary negligence of the defendant in failing to maintain a vigilant watch and lookout.

The first point in plaintiffs’ brief is that the trial court erred in excluding the testimony of Herbert Riehn “as to observations and measurements made at the scene of the collision” because he had participated in making the measurements.

Plaintiffs apparently have reference to the following incident. Mr. Riehn, a deputy sheriff, arrived at the scene and assisted a highway patrolman in making measurements of skid marks. He was asked what was his “best recollection” as to the length of the skid marks. Counsel for defendant then asked a “qualifying” question as to whether his testimony would be “based upon your own knowledge by measurement or is it based upon what the trooper measured and put in his report,” and Mr. Reihn replied that his answer would be “based on the trooper’s report.” The trial court then sustained an objection to the question on the ground that it was hearsay. Later Mr. Riehn testified that his “recollection” was that “from the starting of the skid marks to the impact and from the impact to where the [defendant’s] car came to a stop was just about half the distance, I mean, the entire distance divided in half, * * He was then asked what the entire distance was, and in reply to another “qualifying” question he stated that his testimony would not be based on his own knowledge and information but “it would be on the trooper’s report.” The court again sustained an objection on the ground of hearsay. These rulings were proper. In addition, we note that immediately thereafter the witness testified without objection that his best estimate was that the skid marks were “from 125 to 150 feet.” No prejudicial error to plaintiffs resulted from this incident.

Plaintiffs’ next point is that the trial court erred in refusing to submit to the jury their requested instruction on humanitarian negligence based on defendant’s failure to stop, slacken speed, swerve and sound a warning.

There is no evidence whatever concerning the speed of defendant’s automobile, and neither is there any evidence from which a jury could reasonably determine when Michael came into a position of imminent peril. “It is only when imminent peril arises that the humanitarian rule seizes upon the then existing situation, in effect ‘blotting out primary or antecedent negligence,’ Downing v. Dixon, Mo.App., 314 S.W.2d 927, 930, and imposes a duty thereafter to exercise the required degree of care to avoid the threatened injury.” Davis v. Quality Oil Company, Mo., 353 S.W.2d 670, 673. The defendant was not called by plaintiffs as an adverse witness, and the only other persons who were nearby and who saw anything pertaining to the accident were Mr. Thompson who made no mention of the speed of defendant’s automobile and stated that he never saw Michael prior to the time he was struck, and Michael’s sister, Helen, who was back in the yard and gave no testimony concerning the location or speed of defendant’s automobile. On cross-examination she stated that she did not see defendant’s automobile before the accident and did not see it hit Michael. The only testimony bearing on the time when Michael entered a position of imminent peril was that of Mrs. Lindner and Mr. Reihn who stated, as previously set out, that defendant told them that Michael ran or came out on the road, then “froze,” and then ran or turned back into the path of the automobile. No distances are shown, and as previously noted, there is no evidence of the speed of the automobile. While it is evident that Michael at some time entered a position of imminent peril because he was struck by the automobile, “in order to impose liability on [defendant] under the humanitarian rule, it is necessary that the evidence also show that [defendant], after receiving actual or constructive notice of the imminent peril, then ‘had the present ability, with the means at hand, to have averted the impending injury without injury to himself or others,’ and that he failed to exercise the required care to avert such injury.” Davis v. Quality Oil Company, supra, at p. 674; Shirley v. Norfleet, Mo., 315 S.W.2d 715.

In this case, any finding as to when and where Michael came into a position of imminent peril would be “pure speculation, guess and conjecture,” see Wapelhorst v. Lindner, Mo., 269 S.W.2d 865, 871, and only by conjecturing as to when he came into and was in imminent peril could the jury have found that thereafter the defendant had the present ability, with the means at hand, to have averted the impending injury to Michael without injury to himself and others. See Vietmeier v. Voss, Mo., 246 S.W.2d 785. It necessarily follows, assuming the requested instruction on humanitarian negligence otherwise was correct, that the trial court did not err in refusing to submit it to the jury.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

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

STORCKMAN, P. J., EAGER, and HENLEY, JJ., vice FINCH, J., concur.


text:
    Ora UNDERWOOD, Respondent, v. Don HENDRIX, Appellant.
    No. 50691.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      Pinnell & Monroe, by E. L. Monroe, Mo-nett, for respondent.
    Royle Ellis, Cassville, for defendant-appellant.
   STOCKARD, Commissioner.

The jury returned a verdict for defendant in plaintiff’s suit in which she sought damages for personal injuries in the amount of $17,500. The trial court thereafter granted plaintiff a new trial on the ground that the giving of Instruction No. 5 on contributory negligence constituted prejudicial error, and defendant has appealed.

Defendant drove his 1962 Ford truck to plaintiff’s home to take plaintiff to dinner. He stopped the truck in front of plaintiff’s house, and remained in the cab of the truck on the driver’s side with the engine running. He did not put on the brakes although the truck was stopped at a place where the ground was not level. Plaintiff walked to the truck and started to enter the passenger side of the cab of the truck. She stepped on the running board with her left foot and had started to pull herself into the cab when the truck moved forward. Defendant made a hard application of the brakes, the truck stopped suddenly, plaintiff was thrown against the door, and she then fell to the ground and was injured. She admitted that she knew the truck was likely to move forward if defendant did not have on the brakes, but she did not know whether they were on, and she assumed that defendant would prevent the truck from moving while she was getting in.

Plaintiff’s case was submitted to the jury on the hypothesized negligence of defendant in causing or permitting the truck to move forward while plaintiff was entering the cab and then stopping the truck suddenly causing plaintiff to fall. At the request of defendant the trial court gave Instruction No. 5, which first stated that plaintiff was required to exercise ordinary care for her own safety, and then provided as follows:

“ * * * if you find and believe * * that plaintiff failed to exercise ordinary care for her own safety in attempting to get into the cab of the truck * * when the truck was on ground that sloped to the front of the truck * * when she saw or knew, or * * * should have seen and known that said truck was likely to move forward while she was attempting to get into the cab of the truck, * * * and that she failed to warn the defendant of the position of said truck and its likely movement forward when she could have done so and prevented the forward movement of the track * * *, and if you further find that such failure to exercise ordinary care for her own safety contributed to cause her injuries, then you should find plaintiff guilty of contributory negligence * *

We conclude that the order granting plaintiff a new trial must be affirmed. The instruction does not hypothesize facts supported by the evidence which would authorize a finding of contributory negligence.

The negligence submitted by Instruction No. 5 is failure on the part of plaintiff to warn the defendant that the truck was likely to move, but under the facts of this case, as a matter of law there was no such duty. Plaintiff’s status was that of a guest passenger. “In the absence of visible lack of caution of the driver or known imminence of danger, a guest [passenger] may ordinarily rely upon a driver who has exclusive control of the vehicle.” Toburen v. Carter, Mo., 273 S.W.2d 161; Ketcham v. Thomas, Mo., 283 S.W.2d 642; Fann v. Farmer, Mo.App., 289 S.W.2d 144. There was no visible lack of caution on the part of defendant. The truck was sitting still. The defendant was in the driver’s seat and from all appearances he was in complete and exclusive control of the truck. Plaintiff had no reason to believe the brakes were not on, and she had the right to rely upon adequate control by defendant. That would include the right to assume that either the hand or foot brake was on, or that for some other reason the truck would not move forward when plaintiff attempted to enter the cab, even though plaintiff knew the truck was sitting on slightly sloping ground. Therefore, there was no known imminence of danger, nor was there a situation where a jury reasonably could find that a person in the exercise of ordinary care would or should have known of imminence of danger. In this situation there was no duty on plaintiff, in the exercise of ordinary care, to warn the defendant that the truck might move when she attempted to enter it.

The submission of defendant in Instruction No. S imposed a duty on plaintiff to warn the defendant when in the exercise of ordinary care a reasonably prudent person would have no reason to believe a warning was needed. As was said in Happy v. Blanton, Mo., 303 S.W.2d 633 at p. 638, “[o]nly mischief and confusion could result from a requirement that in the exercise of ordinary care every guest passenger must at all times be a ‘back seat driver.’ ” There were not facts and circumstances in evidence from which plaintiff’s contributory negligence in failing to warn could be found, and for that reason it was error to submit such issue to the jury. Tomlin v. Alford, Mo., 351 S.W.2d 705, 711.

The order of the trial court granting a new trial for the error in submitting Instruction No. 5 to the jury is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: NORVELL, Justice.

text:
    The STATE of Texas, Petitioner, v. Thomas E. JACKSON, Respondent.
    No. A-10477.
    Supreme Court of Texas.
    April 7, 1965.
    W. G. Walley, Jr., Beaumont, for petitioner.
    Fred A. Carver, Beaumont, for respondent.
   NORVELL, Justice.

This is a condemnation case in which the judgment of the County Court at Law of Jefferson County recites that the Special Commissioners in condemnation had made a money award to respondent, Thomas E. Jackson for a small tract of 0.018 of an acre owned by him and condemned by the State of Texas; that the award money had been deposited with the County Clerk of Jefferson County and withdrawn by the respondent; that the State of Texas had duly excepted to the award of the Special Commissioners and thus invoked the jurisdiction of the County Court at Law and that upon the trial the judge had instructed the jury to return a verdict for respondent for the sum of $1.00. Judgment was accordingly rendered that the State recover of respondent the title and possession of the 0.018 acre tract of land involved and further awarding the State a money judgment for the amount of the money award made by the Special Commissioners and withdrawn from the registry of the Court by the respondent, less the one dollar nominal damages found by the jury in accordance with the judge’s instruction. The Court of Civil Appeals reversed. 383 S.W.2d 647.

We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court. The respondent, as defendant in the County Court at Law, filed no answer and introduced no evidence as to the value of the 0.018 acre tract of land. However he did file two motions in the trial court asserting that the cause should be dismissed or that the judge should instruct the jury to find for the respondent in the amount of the Special Commissioners’ award. Seemingly in support of the position taken in such motions, respondent here argues that the State failed to prove facts said to be essential to the trial court’s jurisdiction “for the reason that the State introduced no proof whatsoever of the necessity of the taking of respondent’s strip of land, nor of any bona fide effort to agree with respondent as to the value of the land or the amount of damages.”

We do not have a jurisdictional question involved here. The jurisdiction of the County Court at Law was properly invoked by the State when it timely excepted to the award of the Special Commissioners. Article 3266, § 6; State v. Nelson, 160 Tex. 515, 334 S.W.2d 788 (1960); Pearson v. State, 159 Tex. 66, 315 S.W.2d 935 (1958). By accepting the award of the Special Commissioners the respondent is precluded from contesting the State’s right to take the property. Article 1, § 17 of the Texas Constitution, Vernon’s Ann.St. in part provides that, “No person’s property shall be taken * * * for or applied to public use without adequate compensation being made, unless by the consent of such person; * * *.” After an award has been made, and the money deposited in the registry of the Court and the landowner has withdrawn the same, he cannot thereafter contend that the taking was unlawful. In legal contemplation, he has consented to such taking and will not be permitted to retain his compensation and at the same time assert that the condemning authority had no right to take his property under the eminent domain power. This point was settled by this Court’s decision in City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, 44 S.W. 476 (1897). See also, McConnico v. Texas Power & Light Company, 335 S.W.2d 397 (Tex.Civ.App., 1960, wr. ref., n. r. e.), Sacred Gardens of Memory, Inc. v. State, 334 S.W.2d 220 (Tex.Civ.App., 1960, no wr. hist.), 22 Tex.Jur.2d 380, Eminent Domain, § 266 — • Waiver of right to object to appropriation.

Respondent was entitled to litigate the issue of adequate compensation in the County Court at Law. Thomas v. Housing Authority of City of Dallas, 153 Tex. 137, 264 S.W.2d 93 (1953). He admits, however, (on authority of Ready v. City of Marshall, 234 S.W.2d 104, Tex.Civ.App., 1950, no wr. hist, which he cites) that the burden of proving the value of the property taken rested upon him. Upon the question of burden of proof, the holding in Ready is undoubtedly correct, Aue v. State, 77 S.W.2d 606 (Tex.Civ.App., 1934, wr. ref.); Roberts v. Robertson County, 48 S.W.2d 737 (Tex.Civ.App., 1932, wr. ref.); Hale v. Lavaca County Flood Control Dist., 344 S.W.2d 245 (Tex.Civ.App., 1961, no wr. hist.); City of Fort Worth v. Miller, 336 S.W.2d 296 (Tex.Civ.App., 1960, ref., n. r. e.), 22 Tex.Jur.2d 409, Eminent Domain, § 292, Damages. As respondent adduced no evidence relating to the issue of value, the trial court was necessarily constrained to instruct the jury to return a verdict for nominal damages. Accordingly the judgment of the Court of Civil Appeals is reversed and that of the trial court affirmed.

      . The State in its application for writ of error asserts that the judgment of the trial court was a nihil dicit judgment in that the respondent filed no answer and hence the allegations in the State’s pleadings as to jurisdictional requisites and preliminary matters taking place before the institution of the judicial proceedings in the County Court at Law must be taken as true. It is not necessary to decide this question raised by the State in order to dispose of this cause.

      . The eminent domain statutes have been amended since the decision in City of San Antonio v. Grandjean, so as to allow the landowner or condemning authority to litigate the amount of damages which should properly be paid to the landowner. This matter was settled by this Court in Thomas v. Housing Authority of City of Dallas, 153 Tex. 137, 264 S.W. 2d 93 (1953). With reference to the Thomas case and Grandjean, the Dallas Court of Civil Appeals in Crockett v. Housing Authority of the City of Dallas, 274 S.W.2d 187 (Tex.Civ.App., 1954, no wr. hist.), correctly observed that:
      “While the landowner may now withdraw the deposit without prejudice to his right of appeal on claim of inadequate damages, Thomas v. Housing Authority of City of Dallas, supra, the rule stated in City of San Antonio v. Grandjean, 91 Tex. 430, 41 S.W. 477, 479, would otherwise appear to be good law: ‘In cases in which there has been an attempt to condemn, but the proceedings are invalid for want of a compliance with the statute which authorized the condemnation, it is held that the owner, by accepting the condemnation assessed, makes the transaction effectual’.”


author: PER CURIAM.

text:
    Ava Nell QUARLES, Petitioner, v. N. K. QUARLES, Respondent.
    No. A-10651.
    Supreme Court of Texas.
    April 7, 1965.
    Bruce Graham, Greenville, for petitioner.
    G. C. Harris, Greenville, for respondent.
   PER CURIAM.

This is a divorce case in which the Court of Civil Appeals has affirmed the decree of the trial court. 386 S.W.2d 337. In the application for writ of error, petitioner asserts that this Court has jurisdiction of this cause under subdivisions 2 and 6 of Article 1728, Vernon’s Ann.Tex.Stats. All of petitioner’s points of error relate to that portion of the divorce decree awarding the custody of three minor children to the respondent.

As no conflict of decisions is pointed out in the application, no Supreme Court jurisdiction under Article. 1728, § 2 is shown.

As the custody award is contained in the divorce decree and is an integral part of the divorce case, this Court has no jurisdiction of the cause under Article 1728, § 6. See, Article 1821, § 3, Carter v. Carter, 362 S.W.2d 646, (Tex.Sup., 1962), Longoria v. Longoria, 160 Tex. 134, 327 S.W.2d 453.

The respondent’s challenge to the jurisdiction of this Court is sustained and the application for writ of error is dismissed for want of jurisdiction.


author: GREENHILL, Justice.

text:
    Eileen Ann McKANNA, Petitioner, v. Joe EDGAR, Jr., Respondent.
    No. A-10338.
    Supreme Court of Texas.
    March 10, 1965.
    Rehearing Denied April 21, 1965.

      Dan Moody, Jr., and John E. Clark, Austin, for petitioner.
    Tom Higgins, Austin, for respondent.
   GREENHILL, Justice.

Some time before this proceeding was instituted, Eileen Ann McKanna, a resident of California, executed and delivered a note to Joe Edgar, Jr., of Austin, Texas. The note was payable in Austin. McKanna did not pay the note when due, and Edgar brought suit. Edgar had a problem in obtaining personal service of process because McKanna lived in California. There is a Texas statute which provides for substituted service upon corporations and individuals doing business in Texas, Article 2031b. Edgar served, or attempted to serve, McKanna by serving the Secretary of State of the State of Texas under that statute. The Secretary of State in turn forwarded the citation to McKanna. Mc-Kanna did not appear in the Texas court in person or by attorney. Article 2249a. Based on that service, Edgar obtained a judgment by default against McKanna on the note. McKanna thereafter instituted this action, within the time allowed, by way of writ of error to the Court of Civil Appeals to set aside the default judgment based on the substituted service. Articles 2249 and 2255. The Court of Civil Appeals refused to set aside the judgment. 380 S.W.2d 889 (1964).

McKanna, the nonresident defendant, contends that the judgment should be set aside for lack of jurisdiction over her person because (1) the substituted service of citation upon her was not made in accordance with the provisions of Article 2031b in that the record fails to show the existence of the conditions which, under the statute, are a prerequisite to service on her by serving the Secretary of State; and (2) Article 2031b is unconstitutional if it confers jurisdiction under the facts and circumstances of this case.

We reverse both judgments below on the basis of McKanna’s first contention. It is therefore unnecessary to consider the constitutional question. For an analysis of Article 2031b, see generally Thode, In Personam Jurisdiction; Article 2031b, the Texas “Long Arm” Jurisdiction Statute; and the Appearance to Challenge Jurisdiction in Texas and Elsewhere, 42 Texas Law Review 279, 303-10 (1964); Wilson, In Personam Jurisdiction over Non-residents: An Invitation and a Proposal, 9 Baylor Law Review 363 (1957) ; Counts, More on Rule 120a, 28 Texas Bar Journal 95, 96 (Feb. 1965).

Since McKanna’s mode of review by way of writ of error in the Court of Civil Appeals constitutes a direct attack on the default judgment, the question to be decided is whether there is a lack of jurisdiction apparent on the face of the record which would vitiate the trial court’s judgment. Flynt v. City of Kingsville, 125 Tex. 510, 82 S.W.2d 934 (1935); Texaco Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App.1962, wr. ref., n. r. e.); Doak v. Biggs, 235 S.W. 957 (Tex.Civ.App.1921, no writ).

Section 3 of Article 2031b, here to be construed, reads in part as follows:

“Any * * * non-resident natural person that engages in business in this State * * and does not maintain a place of regular business in this State or a designated agent upon whom service may be made * * *, the act or acts of engaging in such business * * shall be deemed equivalent to an appointment * * of the Secretary of State of Texas as agent upon whom service of process may be made

Section 4 of that Article provides that a nonresident “shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State * * The parties agree that McKanna was doing business in Texas; so that problem is not before us.

Edgar alleged in his petition that Eileen Ann McKanna resided in Orange County, California, and that she executed and delivered to Edgar her note “payable to the order of plaintiff at 1210 Perry-Brooks Building, Austin, Texas * * These allegations comply with the requirements of Section 3 of Article 2031b that McKanna be a nonresident and, as stipulated, be doing business in this State. But there are no allegations that McKanna “does not maintain a place of regular business in this State or a designated agent upon whom service may be made.” The nonexistence of those two conditions is shown to be a necessary prerequisite to the applicability of Section 3 because of the language used in Section 2, Section 2 provides:

“When any i!: $ :;i non-resident natural person shall engage in business in this State * * * service may be made by serving a copy of the process with the person who * * * is in charge of any business in which the defendant or defendants are engaged * *

If the defendant had a regular place of business or a designated agent in Texas, we doubt that it could be successfully contended that service of process could be made on the Secretary of State. We hold under the clear language of Article 2031b that “the intent is to permit resort to Section 3 only if Section 2 is not available.” Counts, More on Rule 120a, 28 Tex.B.J. 95, 137 (Feb. 1965). This holding is in accord with the established law of this State that it is imperative and essential that the record affirmatively show a strict compliance with the provided mode of service. Roberts v. Stockslager, 4 Tex. 307 (1849); Texaco Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App.1962, wr. ref., n. r. e.); Parker v. Scobee, 36 S.W.2d 303 (Tex.Civ.App.1931, no writ).

The Court of Civil Appeals, in its opinion, leaned heavily on its conclusion that “a legitimate inference might be drawn from the petition that appellee did not maintain a place of regular business In Texas or a designated agent for service,” citing Kelley v. First Nat'l Bank, 270 S.W.2d 644, 646-647 (Tex.Civ.App.1954, no writ). That case is distinguishable because the question before the court was whether the petition stated a cause of action which would support a default judgment. The court construed the pleadings in favor of the pleader in order to determine whether there was a cause of action alleged. This rule does not apply with respect to jurisdictional facts. While ordinarily presumptions are made in support of a judgment (including presumptions of due service of citation when the judgment so recites), no such presumptions are made in a direct attack upon a default judgment. See Flynt v. City of Kingsville, 12S Tex. 510, 82 S.W.2d 934 (1935). We think the same rule would apply to inferences of jurisdictional facts in a direct attack. Cf. Walker v. Koger, 99 S.W.2d 1034 (Tex.Civ.App.1936, wr. dism.); National Cereal Co. v. Earnest, 87 S.W. 734 (Tex.Civ.App.1905, no writ). As noted above, jurisdiction in this type of case must affirmatively appear on the face of the record. The provisions of Article 2031b are clear, and plaintiff has the burden of making sufficient allegations to bring the defendant within its provisions. Cf. Sgitcovich v. Sgitcovich, 150 Tex. 398, 241 S.W.2d 142 (1951); Steele v. Caldwell, 158 S.W.2d 867 (Tex.Civ.App.1942, no writ); Parker v. Scobee, 36 S.W.2d 303 (Tex.Civ.App.1931, no writ). We find nothing in the record that compels the inference that Mc-Kanna had neither a place of regular business nor a designated agent in this State.

The Court of Civil Appeals relied on Employer’s Reinsurance Corp. v. Brock, 74 S.W.2d 435 (Tex.Civ.App.1934, wr. dism.), for the proposition that a citation return showing service on a defendant by serving his agent is sufficient, without proof of such agency, to warrant a default judgment. The question in that case was whether the judgment was invalid because “no proof was offered respecting the agency of the said John R. Young * * [Emphasis supplied.] The plaintiff alleged that Young was in charge of defendant’s office and was a duly authorized attorney for service of legal process. The court held that in view of the sheriff’s amended return which recited that service was had on the defendant through its “local agent John R. Young,” it was unnecessary for the plaintiff to introduce proof of his agency. The case at bar is distinguishable in that the question here is whether the plaintiff made sufficient allegations to confer jurisdiction under Article 2031b. A return showing service on the Secretary of State cannot supply the missing jurisdictional facts upon which such service must depend.

McKenna, having now appeared to attack the -judgment, is presumed to have entered her appearance to the term of the court at which the mandate shall be filed. Rule 123, Texas Rules of Civil Procedure. The judgments of the courts below are reversed, and the cause remanded to the District Court for a trial on the merits.

      . References to statutes throughout are to Vernon’s Texas Civil Statutes Annotated.