author: STORCKMAN, Presiding Judge.

text:
    Curtis R. GEORG and Mabel H. Georg, His Wife, Respondents, v. Richard E. KOENIG, Appellant.
    No. 49525.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.
    Donald U. Beimdiek, St. Louis, for appellant.
    Biggs, Hensley, Curtis & Biggs, Davis Biggs, St. Louis, for respondents.
   STORCKMAN, Presiding Judge.

This is a suit to enjoin the defendant from interfering with the construction of a driveway leading from plaintiffs’ residence to a private roadway of the subdivision in which the plaintiffs and the defendant resided. An order to show cause and a restraining order were issued. Thereafter, issues were joined and a trial on the merits resulted in a judgment for the plaintiffs. The defendant’s motion for a new trial was overruled and he appealed to this court.

At the outset we are confronted with a dispute as to this court’s jurisdiction to adjudicate the appeal. In his jurisdictional statement the defendant asserts that the plaintiffs failed to plead who owned the fee in the disputed land; that the defendant pleaded that he and not the trustees of the subdivision had title; and that the trial court found that the title to the disputed area was in the defendant and his wife subject to an easement. The defendant then concludes: “Hence, this action involves the title to real estate, the extent of easement rights and the rights of the owners thereon, thereby vesting jurisdiction in the Supreme Court of Missouri pursuant to Article V, Section 3 of the Constitution of 1945 of the State of Missouri.”

The defendant further asserts that this court has jurisdiction because a construction of the due process clauses of the constitutions of the United States and the State of Missouri is involved in that the defendant alleged in his return to the order to show cause and in his motion for new trial that the issuance of the restraining order violated his rights under Art. I, § 10, Constitution of Missouri 1945, V.A.M.S. and § 1 of Amendment 14 of the Constitution of the United States. The defendant cites no authority in support of the two grounds of jurisdiction asserted other than the constitutional provisions referred to above.

The plaintiffs deny that this court has jurisdiction. They assert that the purpose of the suit is to restrain the defendant from interfering with the plaintiffs’ use of a common easement and deny that there is any dispute as to the title to the real estate involved. The plaintiffs say that a construction of the constitution is not involved because the defendant does not specify in his motion for new trial or in his brief in what way due process has been violated. Authorities in support of their contentions are cited by the plaintiffs.

The private roadway in Ladue Ridge Subdivision in St. Louis County runs generally east and west. While the roadway easement is 50 feet wide, a strip 22 feet wide in the middle of the easement is all that is paved for travel leaving unpaved strips 14 feet wide on the north and south sides which the abutting owners, including the plaintiffs and the defendant, have planted and apparently treated as a part of their front yards. The plaintiffs own lot 2 which is adjacent to and east of lot 3 owned by the defendant. The lots are on the north side of the roadway. Plaintiffs’ driveway is on the west side of their lot and where it passes through the 14-foot-unpaved portion of the easement at a point 6.40 feet from the northern edge of the paved roadway the driveway flares or broadens to facilitate entering or leaving the driveway. Where the western edge of plaintiffs’ driveway joins the paved roadway, it was found by the court to be 2.56 feet west of a southward extension of the boundary line between lots 2 and 3. Whether the plaintiffs have the right to use the disputed area to flare their driveway in this fashion is the hub of this controversy.

It is undisputed that an easement 50 feet wide is reserved for Ladue Ridge Road. In his pleadings the defendant alleges that “title to the roadway is not vested in the trustees”, and that the plaintiffs failed to plead in whom “the fee to the roadway mentioned in paragraph 3 is vested”. In paragraph 2 of their petition, the plaintiffs alleged that the defendant was “the owner of the real estate located at No. 3 Ladue Ridge Road, Ladue, St. Louis County, Missouri.” In its judgment, the trial court found that the plaintiffs and the defendant were the owners and in possession of lots 2 and 3, respectively, and held that title to the center of Ladue Ridge Road was vested in the abutting landowners and that the “defendant, together with his wife, owns the fourteen-foot strip of land between the east and west extension of the property-lines of his said property to the center of the paved roadway of Ladue Ridge Road, subject however, to the easement set out in the subdivision plat and referred to in the indenture aforesaid.” In his motion for a new trial, the defendant made no objection to the court’s ruling as to the ownership of the land involved although he attacked the rights of the plaintiffs and the authority of the trustees under the easement.

The second of the defendant’s points to be argued (the only reference to title) reads as follows: “The fee title to the disputed land and under the easement abutting their land is owned by the defendant and his wife. The determination of the trial court on this point is correct. It is presented in this appeal only as a foundation for the other points in the brief.” Likewise, the plaintiffs do not question the trial court’s findings as to title. It is doubtful if there was ever any controversy in the case as to “the title to real estate” in the constitutional sense, but it is sufficient to say that no such question is preserved for review by this court. The construction of the roadway easement and the determination of rights of the parties thereunder is not sufficient to vest this court with appellate jurisdiction. Smith v. Santarelli, 355 Mo. 1047, 199 S.W.2d 411, 412 [4] ; Miller v. Berry, Mo.App., 270 S.W.2d 666, 667 [1]; Bridle Trail Association v. O’Shanick, Mo.App., 290 S.W.2d 401, 402 [1].

The defendant contends a construction of the constitutions of this state and of the United States is involved because he alleged in his return to the order to show cause that the restraining order issued against him violated his rights without due process of law and that, upon entry of the judgment, he stated in his motion for new trial that the effect of the judgment was to deprive him of property and liberty without due process of law. Paragraph 2 of the defendant’s return to the order to show cause asserts: “That said order of July 15, 1960, as aforesaid mentioned, should be dissolved, annulled and held for naught because it was issued in violation of defendant’s property rights without due process of law contrary to the Constitutions of the State of Missouri and the United States of America.” The allegation in paragraph 5 of the motion for new trial is that: “The effect of the judgment is to violate the defendant’s constitutional rights, in that he is deprived of property and liberty without due process of law as guaranteed by Article 1 § 10 of the Constitution of Missouri, 1945, and Section 1 of Amendment XIV of the Constitution of the United States of America.” The first point of defendant’s brief is practically a rescript of the statements set out above from the return and the motion for new trial. In each instance we are confronted by a conclusion of the defendant without a specification of what procedures necessary to due process were omitted or violated.

We are precluded from considering any allegations of error which have not been presented to or decided by the trial court. S.Ct.Rules 79.03 and 83.13(a), 1959, V.A.M.R., § 512.160, subd. 1, RSMo 1959, V.A.M.S. There is no showing that the trial court decided a constitutional question. The raising of a constitutional question for purposes of appellate jurisdiction is not a mere matter of form, but there must be a substantial showing that such a question actually exists. Robinson v. Nick, 345 Mo. 305, 134 S.W.2d 112, 114 [8]; Dorrah v. Pemiscot County Bank, Mo., 248 S.W. 960, 962 [3].

The bare assertion in the motion for new trial that the effect of the judgment was to deprive the defendant of property and liberty without due process of law is a legal conclusion unsupported by any statement of facts constituting the alleged violation of constitutional rights and is insufficient to vest the supreme court with appellate jurisdiction. Dorrah v. Pemiscot County Bank, Mo., 248 S.W. 960, 962 [2]; Robinson v. Nick, 345 Mo. 305, 134 S.W.2d 112, 114 [9, 11]; State ex rel. Kenosha Auto Transport Corporation v. Flanigan, 349 Mo. 54, 159 S.W.2d 598, 599 [3]; Ragan v. Ragan, Mo.App., 315 S.W.2d 142, 147-148 [4,6].

Since no other ground has been suggested and we have found none, we must conclude that this court is without appellate jurisdiction. Therefore, it is ordered that the cause be transferred to the St. Louis Court of Appeals.

All of the Judges concur.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    Carolyn S. GARDNER, Appellant, v. Boyd Dwight SIMMONS, and C. E. Russell, doing business as Russell General Tire Service, Respondents.
    No. 49646.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.

      Leland C. Bussell, Joe C. Greene, Bussell & Hough., Springfield, for appellant
    B. H. Clampett, Walker, Daniel, Clam-pett, Rittershouse & Ellis, Springfield, for respondents, C. E. Russell.
   COIL, Commissioner.

Mrs. Carolyn Gardner claimed $20,000 as damages for injuries she allegedly sustained when she was a passenger in an automobile driven by her husband and which injuries she averred were the result of the negligence of respondent Simmons. Respondent Russell was joined as a defendant on the theory that Simmons was his agent acting within the scope of his employment at the time of the accident. At the close of all the evidence the trial court directed a verdict for the employer, Russell. The jury awarded Mrs. Gardner $3,-500 against the employee, Simmons. Mrs. Gardner has appealed from the ensuing judgment and here contends the trial court erred in directing a verdict for Russell and in refusing to grant her a new trial on the ground that the verdict was so inadequate as to indicate bias, prejudice, and misconduct on the part of the jury and on the ground that respondent Russell was permitted to improperly cross-examine appellant with respect to prior accidents.

Respondent Simmons has not appealed from the judgment against him and has not filed a brief.

Respondent Russell contends that the trial court correctly directed a verdict for him for the reasons that the evidence showed as a matter of law that Simmons was an independent contractor and not Russell’s employee and because, even if Simmons was an employee, he was not acting within the scope of his employment at the time of the accident.

In determining whether Simmons was an independent contractor and thus that Russell was not liable under the doctrine of respondeat superior, we consider the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to appellant and disregard respondents’ evidence not favorable to her and contrary to her evidence, Becker v. Aschen, 344 Mo. 1107, 131 S.W.2d 533, 535 [1-4], and we bear in mind that “Each case must depend on its own facts and no single test considered alone is conclusive of the ultimate test, the right to control. * * * [and] * * * If the facts and legitimate inferences to be drawn therefrom are in dispute the issue is one for the jury. * * Further, whether or not the right of control existed in a particular case is ordinarily a question of fact for the jury.” Benham v. McCoy, Mo., 213 S.W.2d 914, 919[7-11]. Furthermore, contrary to Russell’s contention, the burden of proof on appellant “was only to prove the fact of agency, and not to disprove the theory of independent contractor.” Mattocks v. Emerson Drug Co., Mo.App., 33 S.W.2d 142, 144 [5]; 57 C.J.S. Master and Servant § 501b (2), p. 68.

The evidence so viewed tended to show these facts. Boyd D. Simmons had been employed by C. E. Russell, d/b/a Russell General Tire Service, in Springfield for the fourteen months prior to the accident on March 20, 1961. He was employed for the purpose of calling on and attempting to sell tires to commercial accounts, such as trucking companies and others who owned trucks, to sell merchandise in Russell’s tire store, and to make adjustments with purchasers of tires, apparently who had complained that a particular tire had not given proper service. Those adjustments were made in the store. Simmons was paid a salary of $400 per month and, if he sold sufficient merchandise, would receive commissions in addition to the $400. At the time Simmons was hired, Russell told him that he would need an automobile and that Russell would not furnish one. Consequently, the understanding between the parties was that Simmons would furnish his own transportation and he said nothing was said about whether he would get compensation for automobile expenses —it simply was understood that Simmons would furnish his own transportation, and that it was necessary that Simmons have an automobile in order to keep his job. Russell furnished Simmons with the names of some accounts to call on and he instructed Simmons to go along with a Mr. Hueton, who was a representative of General Tire Company who lived in Joplin,, whenever Simmons felt it would be advantageous. On the morning of March 20, 1961, Simmons had an eight o’clock appointment with Hueton at Russell’s store from where the two were to call on Ozark Wholesale Grocery Company in an attempt to sell that organization some tires. Mr. Simmons lived in Ash Grove (a few miles west of Springfield) and was driving on Highway 160 toward Springfield when his car stopped running. He left it on the shoulder and hitch-hiked to a place close to his employment. He arrived at the Russell General Tire Service about 8:30 a. m., and his employer inquired as to why he had not been there to keep the eight o’clock appointment with the General Tire representative. Simmons explained that his car had quit running and that he had hitch-hiked. Hueton had waited for Simmons and they left in Hueton’s car for the Ozark Wholesale Grocery Company.

Upon completion of that call, by prearrangement Hueton took Simmons to the home of a Mr. Anderson (who was a mechanic and who had theretofore done work on Simmons’ automobile) to engage him to see what was wrong with Simmons’ car. Anderson followed them (Hueton and Simmons) in his automobile and upon arrival at Simmons’ car Hueton left to return to Joplin. Anderson, the mechanic, checked and adjusted the points on Simmons’ automobile and then discovered that there was no gasoline in the car although the gauge showed there was. After getting the car started, Simmons in his car and Anderson in his, drove back to Anderson’s house whereupon Anderson got into Simmons’ car in order to “check it out” to see whether anything else needed to be done to it so that Simmons could go back to work. While they were checking the automobile (with Simmons driving), the accident giving rise to this litigation occurred.

After the accident and the usual statements to the police, etc., Simmons and Anderson had lunch and returned to Russell General Tire Service and Simmons “continued his work there that afternoon.”

It is well established, Benham v. McCoy, supra, that the ultimate test in determining whether one is a servant or an independent contractor is the employer’s right to control the details of the employee’s work and so, of course, the question is not whether an employer did exercise control over the details of an employee’s work but whether the employer had the right to do so. Frank v. Sinclair Refining Co., 363 Mo. 1054, 256 S.W.2d 793, 797[5]. We bear in mind also that the only question on this aspect of the case is whether appellant made a submis-sible case as to the existence of a master-servant relationship between Russell and Simmons at the time of the accident, even though there may have been other evidence from which a jury reasonably could have found that Simmons was an independent contractor and, further, as noted heretofore, that the burden was not on plaintiff to disprove the theory that Simmons was an independent contractor.

It is clear to us that there was substantial evidence from which a jury reasonably could have found that Russell had the right to control the manner in which Simmons performed the duties for which he had been employed. The reasons for that conclusion are these. The evidence showed that Simmons was employed not only to make outside sales to commercial accounts but his duties also included selling to customers who came into the tire store and making tire adjustments in that store; that Mr. Russell furnished Simmons a partial list of accounts on which he was to call and that Russell directed Simmons to cooperate with the General Tire Company’s representative when such seemed advantageous to the promotion of Russell’s business. The foregoing evidence was substantial and sufficient to support a reasonable inference that Russell had the right to direct Simmons to stay in the store all day or each day for a week or for an hour on certain days or for three hours every day, or for any other periods of time the employer might choose, and that Russell had the right to require Simmons to sell tires and make tire adjustments during the periods when he was in the store, and that Russell had the right when he so chose to tell Simmons on whom he was to call for outside commercial sales. The evidence showed further that Russell paid Simmons a fixed salary of $400 per month irrespective (in so far as the evidence shows) of whether Simmons sold any merchandise to commercial accounts and that he was to receive commissions in addition to his fixed salary only in the event that commissions on his total sales exceeded the amount of his stated salary. The fact of the fixed salary is important in connection with the further fact that the employer did not furnish an automobile or pay for the operation of Simmons’ automobile, because under the evidence in this case the jury reasonably could have found that the facts that Simmons furnished his own automobile and paid the expenses therefor were considered by the employer in fixing the amount of Simmons’ monthly salary. See Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, 766.

With respect to the automobile question, respondent Russell contends (in another portion of his brief, but probably we should here interpolate our determination of that question) that there was no agreement that an automobile was to be furnished by Simmons as a means of transportation; that the only agreement was that Simmons was to furnish his own transportation with complete freedom of choice as to the mode. The transcript discloses, however, that there can be no doubt but that the conversation between Russell and Simmons at the time of Simmons’s employment with respect to transportation was subject to the reasonable interpretation, and a jury could have so found, that an automobile was required to be furnished by Simmons as a condition of his employment. The record reflects these questions and answers in that respect:

“Q. At the time he told you to come to work for him, did he tell you that you would need a car for transportation to call on the commercial accounts? A. Yes, he did.
“Q. And did he furnish you with an automobile? A. No.
“Q. Was it the understanding then between the two of you that you had to furnish your own transportation? A. That’s correct.
“Q. Was there anything said at the time that you originally started your employment, .about compensation for this automobile ; was there anything said about your wages, would your wages include the maintenance of your own automobile? A. Well, not directly in that form, no.
“Q. Tell me what form it was in then. A. Well, there wasn’t anything discussed about it other than the fact that I would just have to furnish my own transportation for this work.
******
“Q. Now, Mr. Simmons, you stated just a moment ago, I believe, that it was necessary that you have this automobile to get the job. No transportation was furnished for you and it was necessary that you have the automobile then to keep the job, is that right? A. That’s correct.”

The foregoing portions of the record supported a reasonable finding that an automobile was required to be furnished by Simmons in order for him to obtain the job. See Hoelker v. American Press, 317 Mo. 64, 296 S.W. 1008, 1009, 1010, 1012.

Respondent Russell relies entirely upon our recent case of Kickham v. Carter, Mo., 335 S.W.2d 83, to support his contention that appellant failed to make a submissible case on agency because, he says, the evidence showed as a matter of law that Simmons was an independent contractor. Respondent Russell points to many claimed similarities between the status of. Carter, the salesman in the Kickham case,, and the status of Simmons in the present case. There are similarities, as of course would be most probable in any cases wherein a salesman, employed solely or partially for outside selling, used his own automobile without specific compensation for the expenses thereof. Be that as it may, presently more important is the fact that there are decisively distinguishing dissimilarities between the status of Simmons in this case and the position of Carter in the Kickham case. In our view, entirely sufficient to distinguish the Carter case from the present one are these facts: In the present case there was a fixed monthly salary plus commission, whereas Carter was paid strictly on a commission basis; in the present case the jury reasonably could have found that Simmons was required to have and use an automobile, whereas Carter could choose any mode of transportation; in the present case Simmons was employed specifically to make inside sales and to handle tire adjustments at the General Tire Service store in addition to selling outside to commercial accounts and was subject to the direction of his employer as to when and how long to stay in the store and, to some extent, as to who to call on outside the store, whereas Carter “could fix his own hours of work, choose his own territory, and the employer could not direct that he call on any particular customer.” 335 S.W.2d 88.

We are of the opinion that there was substantial evidence from which the jury reasonably could have found that Simmons was the agent of Russell and, consequently, that the issue was for the jury.

The next question is whether Simmons was engaged in the prosecution of Russell’s business at the time of the accident. Again, as when considering whether Simmons was a servant or an independent contractor, in determining this question of the scope of employment, “we review the evidence in the light most favorable to plaintiff, give to her the benefit of all favorable inferences flowing therefrom and disregard defendant’s evidence except as it may aid plaintiff. Daniels v. Smith, Mo., 323 S.W.2d 705, 706; Stokes v. Four-States Broadcasters, Mo., 300 S.W.2d 426, 428. And if there is uncertainty arising either from (conflict in the testimony or because the undisputed facts may lead reasonable men to ■draw different conclusions as to whether ■defendant’s servant * * * was acting ■within the course and scope of his employment, the question becomes not one of law but of fact to be settled by the jury.” De Mariano v. St. Louis Public Service Co., Mo., 340 S.W.2d 735, 739.

Respondent Russell reminds us and we bear in mind that the question is whether Simmons was at the time of the accident engaged in the prosecution of his employer’s business and not simply whether the accident occurred during the time of his employment. It is, as Russell further points out, well settled that ordinarily an employee going to or returning home from his place of employment is not engaged in the prosecution of his employer’s business during either trip. Smith v. Fine, supra, 175 S.W.2d 766[8, 9]. We bear in mind also that it is immaterial that Simmons owned the automobile if it was being used at the time of the accident in the prosecution of his employer’s business, Klotsch v. P. F. Collier & Son Corporation, 349 Mo. 40, 159 S.W.2d 589, 592[1], with his employer’s express or implied consent, Montana v. Nenert, Mo.App., 226 S.W.2d 394, 399 [5].

Respondent Russell insists that under the circumstances shown in evidence Simmons, as a matter of law, was, in effect, on his way to work and, consequently, that the going-and-coming rule applies and thus there is no liability on the employer. We do not agree. It seems to us that the fact that Simmons’ automobile had not, prior to the accident, completed the trip from the Simmons home to Russell’s place of business, does not justify the conclusion that whenever and under whatever circumstances Simmons returned to that automobile and thereafter drove to his employer’s place of business, he was “going to work” within the meaning of the so-called going- and-coming rule. The undisputed fact is that Simmons had reached his place of work (he had completed “going to work”), he had reported for work, he had gone on a scheduled call with a General Tire representative, he was returning from that call. We are unable to discern that there would be any difference in Simmons’ status at the time of the accident if, instead of an automobile breakdown on the way to work, he had reached work in his own car and had started toward the location of his appointment in that car which had then become inoperable and which was in the process of being repaired preparatory to his continuing toward the scheduled call. Suppose Simmons had traveled to his place of employment by bus and had later picked up his automobile at a garage where he had left it to be repaired; and suppose that thereafter, on his way to call on a prospective tire purchaser, an accident had occurred. Under those circumstances would anyone contend that Simmons was still on his way to work until such time as his automobile reached the Russell General Tire Service? We are convinced that Simmons was not in effect on his way to work at the time of the accident in question.

Respondent next insists that the object of Simmons’ trip at the time of the accident was purely personal and relies on the case of Wines v. Goodyear Tire & Rubber Co., Mo.App., 246 S.W.2d 525, to support that contention. In the Wines case the employee was a salesman for Goodyear Tire & Rubber Company who was furnished a car which he could use at all times on personal as well as company business. On the night in question the salesman spent the evening in the home of a friend making a social call. On his way home he stopped at a filling station for gasoline in order to be prepared for a business trip the next day on behalf of his employer. After obtaining the gasoline and departing for his home, an accident occurred. The court there correctly held that the act of obtaining gasoline on the way home from a personal visit for a business trip the next day, if such promoted the employer’s business in any degree, was too remotely connected to make the master liable; that obtaining the gasoline was not the inducing factor for the trip to his friend’s home but was incidental to the salesman’s main purpose in using the vehicle on the night in question.

It must be apparent that the facts in the Wines case are decisively different from the facts in the present case. The evidence here shows without dispute that Simmons and a mechanic, whose services he had engaged to fix his car so it would run again, were “checking out” Simmons’ automobile to see whether anything more needed to be done to it to place it in proper operating condition so that Simmons might continue in attempting to make sales for his employer during the remainder of the day. The evidence shows further that following the “checking out” and the accident, Simmons did return to Russell’s General Tire Service and did continue to transact his employer’s business. Indeed, the Wines case recognizes the principle that if there is substantial evidence that the advancement of the interests of the employer is the primary object of a trip, there is a jury issue as to “scope of employment.” (246 S.W.2d 530.) Furthermore, the court in the Wines case distinguished the two cases chiefly relied upon by the salesman in that case and relied upon by the present appellant, Steinmetz v. Saathoff, Mo.App., 84 S.W.2d 437, and Burgess v. Garvin, 219 Mo.App. 162, 272 S.W. 108. The court in Wines said the Steinmetz and Burgess cases were not there controlling, “for the reason that in both of them the object of the trip was to condition the automobile for use in the employer’s business. In the first case the employee had taken the car to a garage in a nearby town for needed repairs, which had been made, and the car was on the return trip when the accident occurred. In the latter case the purpose of the trip during which the casualty occurred was to have a tire repaired. In neither of these cases was there any affirmative evidence that the employee was merely on business of his own and that the benefit to the employer was purely incidental. In them the advancement of the interests of the employer was the primary object of the trip.” 246 S.W.2d 530.

While Russell contends that neither the Steinmetz nor the Burgess case militates against his position here, he concedes that they were effectively distinguished in the Wines case and, in our judgment, the above-quoted language used to distinguish them shows the applicability of the principle of those cases to the present facts.

We are of the view that it was for the jury to say whether, at the time of the accident, Simmons was engaged primarily in advancing the interests of his employer and thus within the scope of his employment.

Respondent cited two foreign cases, Sed-berry, for Use and Benefit of Holloway v. Western Union Telegraph Co., La.App., 9 So.2d 73, and Carroll v. Western Union Telegraph Co., 170 Wash. 600, 17 P.2d 49, to support the statement that “the conditioning of an automobile for business use is not itself a business activity.” We have examined the facts in each of those cases and, without prolonging this opinion by a discussion of them, suffice it to say that neither case rules the question here and neither tends to cause us to change our view that under the facts in the present case a jury reasonably could have found that Simmons’ primary purpose in the “check out” trip was the advancement of the interests of his employer.

Respondent contends further that there was no substantial evidence that Simmons had the express or implied permission of his employer to use his own automobile and points to the proposition that even though an automobile is being used in the furtherance of the master’s business, no liability attaches unless the employer has given the employee express or implied authority to use that automobile on such business. Montana v. Nenert, supra. The trouble with respondent’s contention in this respect is that it is based upon the fallacious premise that the evidence in the record supports only the inference that Simmons was to furnish his own transportation with a choice as to kind, when, as we have heretofore pointed out, the record clearly also supports the conclusion that Simmons was to furnish an automobile, that his ability to furnish and use an automobile was a condition of the employment, and that he did furnish and had used for fourteen months his automobile. Under those circumstances, the jury reasonably could have found that Simmons had Russell’s express or implied authority to use the automobile he was operating at the time of the accident.

Appellant contends that her $3,-500 verdict was so inadequate as to indicate bias, prejudice, and misconduct on the part of the jury and that improper cross-examination of Mrs. Gardner as to prior and allegedly irrelevant accidents contributed to that inadequacy. In view of our disposition of the case, it would be futile for us to examine those contentions. For, although defendant-respondent Simmons did not file a motion for a new trial and, as we have heretofore noted, has not appealed and has not filed a brief, our holding that appellant made a sub-missible case against respondent Russell means that the issue of damages must be retried as to both respondents because the final judgment, if appellant should prevail against Russell as she has against Simmons, must be in the same amount against all defendants found liable. Davison v. Farr, Mo.App., 273 S.W.2d 500, 505[12], and cased there cited

It follows: that the judgment against appellant Gardner and in favor of respondent Russell is reversed and the case remanded for retrial on all issues as to Russell ; that the judgment in favor of appellant Gardner and against defendant-respondent Simmons is reversed and the case remanded for retrial on the issue of damages only as to Simmons, with the verdict against Simmons on the issue of liability to be held in abeyance pending entry of judgment following such retrial.

HOUSER, C., concurs.

PER CURIAM.

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

All concur.


author: DALTON, Presiding Judge.

text:
    Austin EMERT, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.
    No. 49561.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.

      William M. Londoff, St. Louis, Jane M. Aguirre, St. Louis, on the brief, for appellant.
    Vernon Riehl, St. Louis, for defendant (respondent).
   DALTON, Presiding Judge.

Action for $25,000 damages for personal injuries alleged to have been sustained by reason of defendant’s negligence, when defendant’s streetcar collided with the rear of plaintiff’s automobile. Defendant filed and submitted a counterclaim for $399.02 for property damage sustained in the collision, when the right front doors of the streetcar were torn off by the rear bumper of plaintiff’s automobile. Verdict and judgment were for defendant on plaintiff’s claim and for plaintiff on defendant’s counterclaim. Only the plaintiff has appealed.

Plaintiff charged in his petition and by Instruction No. 1 submitted a finding that plaintiff’s said automobile, at a certain time and place, was stopped on or near the south rail of the eastbound streetcar tracks; that plaintiff’s said automobile had been so stopped for approximately ten to twelve seconds; that at said time defendant’s eastbound streetcar, operated by one of its employees to the rear of plaintiff’s automobile, was negligently and carelessly caused to overtake, run into and collide with the rear-end of plaintiff’s automobile; and that plaintiff was injured thereby.

By defendant’s Instruction No. 2 defendant submitted the plaintiff’s alleged contributory negligence in the operation of his automobile in that “plaintiff’s automobile overtook and passed [to the right of] the front end of said moving streetcar and that, immediately thereafter, plaintiff suddenly turned his automobile to the left and onto the eastbound streetcar tracks and brought said automobile to a sudden stop directly in the path of and in close and dangerous proximity to said moving eastbound streetcar, without giving a timely and adequate warning of his intention to stop * * * ”

Appellant has assigned error on the action of the trial court in overruling plaintiff’s motion for a directed verdict in plaintiff’s favor on the issue of defendant’s liability “for the reason that there was a complete lack of probative evidence to support the jury verdict in favor of defendant on plaintiff’s cause of action, and [that] such verdict was based upon speculation and conjecture.”

At the close of all the evidence plaintiff asked the court to direct a verdict in his favor and against the defendant on the issue of liability, “and as grounds therefor, states that defendant’s own evidence shows that defendant’s operator was guilty of negligence in the operation of the streetcar on the occasion in question, which negligence directly and proximately caused the collision and injuries mentioned in the evidence.”

Plaintiff’s counsel also orally asked “the Court to instruct the jury that their finding with reference to the issue of negligence on the defendant should be in favor of the plaintiff in view of the evidence and the law.” Both motions were overruled.

In this court appellant argues “that, under all of the circumstances, there was a complete lack of probative evidence to support the verdict in favor of defendant; that the trial court erred in overruling plaintiff’s motion for directed verdict on the issue of liability; that the verdict of the jury could only be, and was, based solely upon speculation and conjecture, and that by reason thereof the trial court committed reversible error in overruling plaintiff’s motion for new trial.”

Appellant cites eight cases in support of the alleged error in overruling the plaintiff’s motion for a directed verdict. In none of the cases cited was a verdict directed in favor of plaintiff and in none of them was the procedure here sought authorized. The assignment is based upon a misunderstanding as to the applicable law, and we find no merit in the assignment.

In Bloch v. Kinder, 338 Mo. 1099, 93 S.W.2d 932, the court said: “ * * * in a case of this character, a verdict for defendant need not be supported by affirmative, substantial evidence tending to show that defendant was not guilty of negligence, because the burden was not on defendant to acquit himself of the charge of negligence. The burden was on plaintiff to show, prima facie, that defendant was guilty of the negligence charged. The absence of such a showing by plaintiff would authorize a verdict for defendant.” And see Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559[1-3]; Dixon v. Edelen, Mo.Sup., 300 S.W.2d 469, 472[1-3]; J. D. Streett & Co. v. Bone, Mo.Sup., 334 S.W.2d 5, 10[7]; Tonkins v. Monarch Bldg. Materials Corp., Mo.Sup., 347 S.W.2d 152, 157[5-7]; Scott v. Gray, Mo.Sup., 337 S.W.2d 38, 41 [2, 3]. Nor do the facts in evidence in this case, as hereinafter stated, bring it within the exceptions to the general rule as stated in Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, 287[1]; and Daly v. Schaefer, Mo. App., 331 S.W.2d 150, 154.

Appellant further contends that Instructions No. 2, 3 and 4, given at defendant’s request, “hypothesized findings which were not supported by substantial credible evidence, and thereby said instructions permitted a finding and verdict for defendant based on speculation and conjecture.”

Since the issues in the trial court were found for defendant on plaintiff’s claim, we shall review the evidence most favorable to defendant and disregard the unfavorable evidence. See Conley v. Crown Coach Co., 348 Mo. 1243, 159 S.W. 2d 281, 283[1-3]. The same rule applies when determining whether defendant’s instructions are supported by evidence. In Rothe v. Hull, 352 Mo. 926, 180 S.W.2d 7, 9, the court said: “The rule is that we may consider only the evidence most favorable to a defendant recovering a verdict in determining whether an instruction given at defendant’s request is unsupported by evidence. Moffett Bros. & Andrews Commission Co. v. Kent, Mo.Sup., 5 S.W.2d 395, 402; Branson v. Abernathy Furniture Co., 344 Mo. 1171, 130 S.W.2d 562, 570; Poague v. Kurn, 346 Mo. 153, 140 S.W.2d 13, 17. It is immaterial whether the issue is presented by plaintiff on appeal from a judgment entered on the verdict for defendant, or on an appeal by a defendant from an order of the trial court granting a new trial on the ground that defendant’s instruction is unsupported by the evidence.” And see Highfill v. Brown, Mo.Sup., 340 S.W.2d 656, 661; Thayer v. Sommer, Mo. Sup., 356 S.W.2d 72, 77[5]; Hopper v. Conrow, Mo.Sup., 347 S.W.2d 896, 899 [1-3]; Palmer v. Lasswell, Mo.Sup., 287 S.W.2d 822, 827[2-4].

The evidence favorable to defendant tended to show that at about 12:30 p.m., August 20, 1960, Joseph Hagen, one of defendant’s employees, was operating a streetcar in an eastwardly direction on Easton Avenue in the City of St. Louis; that, when the streetcar reached the west side of Kingshighway, and was loading and unloading passengers, the traffic signal was red for eastbound traffic; that immediately to the right of defendant’s streetcar at that time there was a Mercury automobile and behind it there was a Chrysler automobile; that both were headed east, and their operators were awaiting the traffic light change; that, when the light turned green, Hagen moved the streetcar forward and when it reached the center of Kingshighway its speed was approximately seven miles per hour; that the Mercury automobile moved at a faster rate of speed across and beyond the intersection; that, when the front of the streetcar had reached the east curbline of Kingshighway its rate of speed had been reduced to about five miles per hour, since the Mercury automobile, then some forty feet to the east, was slowing down; that the Mercury automoble was slowing to a stop on account of traffic ahead entering or leaving the Sears-Roebuck & Company’s premises by way of a twenty-five foot entranceway on the south side of Easton Avenue, and located some forty feet east of the east side of Kingshighway; that Hagen had begun slowing the streetcar to maintain the same distance between the front of the streetcar and the rear of the Mercury; and that, at that time, plaintiff, who had been delayed by pedestrians, drove his Chrysler forward at some fifteen miles per hour and passed to the right of defendant’s streetcar; that, as he passed the streetcar he swung his automobile over to the left and into the path of the streetcar, so that its left side was six to eight inches from the south rail, but the overhang of the streetcar was approximately one foot, and, when plaintiff then turned to the right, he did not clear the overhang of the streetcar. When the Mercury automobile came to a full stop by reason of the movement of traffic ahead, the plaintiff brought his Chrysler to a full stop some five or six feet behind the Mercury and within fifteen feet ahead of the moving streetcar; that plaintiff’s said automobile was then angled somewhat to the right so that only the left rear portion was within the overhang of the streetcar; that, as stated, Hagen had also observed the Mercury coming to a stop; and that, since plaintiff’s Chrysler behind the streetcar had apparently failed to get back out to the right and beyond the overhang of the streetcar, Hagen immediately put the streetcar brakes in emergency and the streetcar gong was sounded, but at five miles per hour the streetcar, weighing some 36,500 pounds, had a stopping distance of not less than twenty to twenty-five feet and, while the streetcar was not stopped, it was slowed to three miles per hour before it struck the left rear bumper of plaintiff’s car, and the bumper slid around the right front of the streetcar, as the streetcar went approximately six feet further before coming to a complete stop. The streetcar had brushed plaintiff’s automobile so that the left rear bumper came in contact with the right front doors of the streetcar and knocked them off the channels.

Repeatedly Hagen testified that plaintiff’s Chrysler, traveling at fifteen miles per hour, passed to the right of the streetcar and then came over in front of the overhang of the streetcar and then turned back to the right, but the Mercury came to a full stop ahead and the Chrysler did not clear the path of the streetcar as plaintiff stopped behind the Mercury. The taillight of the Chrysler was broken out and there was red paint from the streetcar on the automobile’s left bumper where the bumper had been pushed by and around the right front of the streetcar and then moved back along the right side of the streetcar to throw the right front doors off their tracks. As to how long plaintiff’s automobile had been stopped at the time of the collision, Hagen testified, “It could not have been very long because everything happened so fast. * * * Oh, around approximately five seconds.” On further cross-examination Hagen said concerning the mentioned time, “I said about five seconds. Everything happened fast; I am grabbing for a figure, I don’t know just exactly how long.” Hagen further said, “I saw the car [Chrysler] coming around on my right. When I [Hagen] made the stop I am fighting to stop an eighteen-ton streetcar * * As to the plaintiff, the witness said, “He wasn’t ahead of me he was coming in from my right in and back out * * *. I throwed it [the brakes] in emergency.” At that time Hagen had seen the Mercury stopping and plaintiff’s car turning to the right but not enough to clear the overhang of the streetcar, and that plaintiff was attempting to stop behind the Mercury. The streetcar was forty-eight feet in length and after the collision the front of the streetcar was then east of the east line of Kingshighway with the rear of the streetcar extending into Kingshighway just enough to interfere with traffic in one lane.

Hagen also testified that he was undertaking to keep approximately forty feet between the front of his streetcar and the Mercury car ahead; that the plaintiff’s Chrysler, approximately eighteen feet long, swung to the left and then tried to get back to the right before stopping; that it did stop six to eight feet behind the Mercury, so that twenty-six to twenty-seven feet of the forty-foot space between the streetcar and the Mercury was suddenly occupied by plaintiff’s car and Hagen had only thirteen or fourteen feet left in which to stop the streetcar at five miles per hour, but it could not be stopped in less than twenty to twenty-five feet. Hagen admitted that he had previously testified in a deposition taken in this case on January 16, 1961; that he had estimated that the Chrysler had stopped for “thirty seconds” before the streetcar struck it. He sought to explain this testimony by saying that plaintiff’s counsel “was feeding me a lot of questions that day and I was grabbing for figures out of the air the best I could.” He also said that when he saw the Mercury begin stopping on account of traffic ahead, which he thought was a vehicle coming out of the Sears-Roebuck place, that he had begun to slow the streetcar and that this was before plaintiff’s car had been turned into the space between the streetcar and the Mercury, and plaintiff had then turned to the right and tried to get back out.

Defendant also offered further evidence tending to show that plaintiff had talked with Milburn Dunbar, Mobile Supervisor for defendant, when Dunbar arrived at the place of collision and before the streetcar had been moved. Dunbar testified: “I asked Mr. Emert how this happened, and he said the car in front of him stopped short, and he put on his brakes and he stopped, and he did not blame our operator, because he didn’t have time to stop.”

When Dunbar arrived, plaintiff got into his car and pulled it into the first driveway east of Kingshighway which was in front of the Sears Service Station on Easton. The driveway was twenty-five feet in width and began at a point about forty feet east from Kingshighway.

Plaintiff’s testimony tended to show that, when west of Kingshighway, he had been stopped behind Mr. Charleston’s Mercury about halfway back from the front of the streetcar, but after the traffic light changed to green the Mercury immediately moved forward, but plaintiff was delayed by pedestrians passing in front of him. However, when they were out of the way, he proceeded across Kingshighway at ten or fifteen miles per hour and moved in front of the streetcar. He testified that no part of his car ever crossed the south rail of the streetcar tracks and that he stopped with the left-hand side of his automobile one and one-half feet south of the south rail. As to his reasons for swerving to the left, he said: “I gradually swerved toward the left, because there was a lot of people standing on the curb, being Saturday afternoon, I was afraid someone would step down off the curb * * He further testified that he stopped six to eight feet behind the Mercury and that the streetcar proceeded across Kingshigh-way and struck the back of the Chrysler and knocked it into the Mercury ahead. While, as stated, plaintiff testified that he stopped his car eighteen inches from the south rail of the streetcar tracks, he nevertheless admitted, on cross-examination, that he drove his car around in front of the right side of the streetcar and stopped, where the streetcar, operated on its tracks, hit the back of his said automobile and knocked it into the Mercury ahead.

The driver of the Mercury, Vernon Charleston, was a witness for plaintiff and he testified that he stopped his automobile “two to three feet” south of the southernmost streetcar track, so that the streetcar would have passed his car without a collision. He stopped his car to permit a westbound car to make a left turn into the Sears-Roebuck parking lot on the south side of Easton. “I don’t know exactly where it came from, but it did make a left turn. * * * I stopped, I let him go on.” The witness said that, when he saw the westbound automobile beginning to make a left turn into the Sears lot he concentrated for a second or two on stopping his own automobile clear of its path. Plaintiff also repeatedly said he pulled up “directly” behind the Mercury and “about eighteen inches from the south rail.”

As stated, appellant contends that Instructions No. 2, 3 and 4, given at defendant’s request, “hypothesized findings which were not supported by substantial credible evidence.”

Appellant construes Instruction No. 2 as purporting to submit the defendant’s affirmative defense of contributory negligence; Instruction No. 3 as purporting to submit facts necessary for a finding for defendant upon its counterclaim against the plaintiff; and Instruction No. 4 as “a sole cause” instruction hypothesizing findings of facts as testified to by Joseph Hagen, the operator of the streetcar. Respondent, however, says that Instruction No. 4 is an instruction setting out defendant’s theory of the case with a submitted finding that the defendant was not negligent. Appellant insists that, “the incredible utterances of Joseph Hagen, in contravention of the laws of nature or physics, do not rise to the dignity of credible, probative evidence”; and that there was a total absence of other substantial evidence to support the findings of facts under Instructions No. 2, 3 and 4. Appellant also says that, absent such substantial evidence, the submission of such facts invited the jury into the field of' speculation and conjecture; and that a finding based thereon should not be permitted to stand.

Each of these instructions contained and submitted a finding of facts substantially as follows: “* * * that at that time plaintiff’s automobile overtook and passed the front end of said moving streetcar and that immediately thereafter plaintiff suddenly turned his automobile to the left and onto the eastbound streetcar tracks and brought said automobile to a sudden stop directly in the path of and in close and dangerous proximity to said moving eastbound streetcar, without giving a timely and adequate warning of his intention to stop.” (Italics ours.)

Appellant complains that Instructions No. 2, 3 and 4 erroneously authorized a verdict for defendant upon a finding that plaintiff brought his vehicle to a sudden stop, when there was no evidence in the record to support a finding that plaintiff brought his vehicle to a “sudden” stop or to an “unexpected” stop. Under this assignment appellant reviews the testimony of Joseph Hagen with reference to plaintiff’s automobile, as follows: “He pulled on in front, a little over, and started back out”; that, as the Mercury came to a stop plaintiff’s Chrysler pulled in front of the streetcar. “A. Yes, sir, and back out. * * * He turned back to the right. * * * Q. Did he get entirely out of the path of your streetcar as he did that? A. No, sir.”

Appellant then reviews Hagen’s testimony with reference to the lapse of time after plaintiff had stopped his automobile and before the collision occurred, as follows: “It could not have been very long, because everything happened so fast. Q. Well, how long, if you have an opinion. A. Oh, around approximately five seconds.” Appellant also reviews Hagen’s testimony with reference to the movement of plaintiff’s automobile when he stated, “He wasn’t ahead of me, he was coming in from my right around and back out. * * * I throwed it in emergency.” Appellant then points to Hagen’s deposition testimony taken in January, 1961, wherein Hagen testified that the Chrysler was stopped “thirty seconds” before the streetcar collided with it. However, the plaintiff testified that his maximum speed in crossing Kingshighway was fifteen miles per hour; that the front of the Chrysler was fifteen feet back of the Mercury, when plaintiff reached the east side of Kingshighway; that the Mercury had been stopped something like five seconds before the plaintiff stopped behind it; and that plaintiff brought the Chrysler to a stop six to eight feet behind the Mercury. Plaintiff’s witness Charleston said that plaintiff brought the Chrysler to a stop “half a car’s length,” or nine to ten feet behind the Mercury. There is no evidence that plaintiff could not have cleared the overhang of the streetcar if he had proceeded further with his right turn, or if he had moved closer to the Mercury. As to why he had not stopped “behind the other one,” apparently a car to the right, plaintiff said, “I would have had to pull suddenly to the right.”

Instruction No. 3, as stated, submitted a finding in favor of defendant on defendant’s counterclaim. If this instruction was erroneous by reason of its submission of the matters herein complained of and if it was further erroneous by reason of its submission of a finding that plaintiff brought said automobile to a stop “with the left rear end of said automobile extending approximately one foot northwardly over the south rail of the said eastbound streetcar tracks,” then the said error, if any, was favorable to plaintiff, imposed an undue burden on defendant and was not prejudicial to plaintiff since the jury found the issues in favor of plaintiff on defendant’s counterclaim. However, the submission in the instruction, that the left rear portion of the automobile extended one foot north-wardly over the south rail, amounted to no more than a statement that it was in the path of the streetcar and did not necessarily conflict with plaintiff’s submission in Instruction No. 1, which submitted that plaintiff’s automobile was stopped “on or near” the south rail of the eastbound tracks. The plaintiff was not prejudiced by the giving of Instruction No. 3.

Was there sufficient evidence in the record to support the giving of Instructions No. 2 and 4 on the issues submitted concerning plaintiff’s sudden turn to the left and his sudden turn to the right and the sudden stop? We think the evidence was entirely sufficient. Defendant’s evidence tended to show that at the time the streetcar reached the east side of Kingshighway it was traveling five miles per hour; and that at the same time plaintiff’s car was proceeding and passing the streetcar at fifteen miles per hour. The Chrysler passed the streetcar and came to a stop in its path and the streetcar stopped before it had cleared Kingshighway. It is apparent that the collision was not long delayed and that events necessarily happened in a very short space of time. Further, the evidence shows that plaintiff “swerved” his car first to the left and then to the right and then stopped short of the Mercury. Even plaintiff’s use of the term “swerve” indicated movement from which the jury could infer an “abrupt shift of direction.” See Webster’s Third International Dictionary Unabridged. Also the term “cut in” has been defined as: “To thrust oneself usu. with abruptness or force into a position between others or belonging to another: to drive a vehicle rapidly to a place in a moving line of vehicles.” The record also shows the use of terms such as “brushed by,” “stopped short,” “cut off,” “cut in,” “didn’t have time to stop,” “cut in front,” “fighting to stop,” “attempting to pass”; and that the westbound automobile on Easton Avenue made a left turn and caused the operator of the Mercury to “stop short” and let the left-turn vehicle proceed. The record favorable to defendant indicates a sudden stop by both the Mercury and the Chrysler. From all the circumstances shown in evidence the jury could well infer suddenness with reference to the matters submitted in the several instructions.

Nor was defendant concluded by Hagen’s testimony as to the five seconds lapse of time or the thirty seconds lapse of time after plaintiff’s car had stopped and before the collision occurred. The testimony as to lapse of time was a mere estimate of the witness, and there was other evidence in the record which tended to show the estimates were clearly erroneous. The rule is that a party is not concluded by a witness’ mere estimate of time, speed and distance, particularly where there is other evidence on the issue for the jury’s consideration. Lay v. McGrane, Mo.Sup., 331 S.W.2d 592, 596[3-5]; Appelhans v. Goldman, Mo.Sup., 349 S.W.2d 204, 208 [12]; McDonough v. St. Louis Public Service Co., Mo.Sup., 350 S.W.2d 739, 744[3]; Duffendack v. St. Louis Public Service Co., Mo.App., 365 S.W.2d 52, 53; Stout v. St. Louis County Transit Co., Mo.App., 285 S.W.2d 1, 4[1, 2].

Appellant further contends that “Instructions Nos. 2, 3 and 4 erroneously submitted plaintiff’s failure to give timely and adequate warning for the reasons that: (1) Said instructions failed to hypothecate factual issues necessary to establish plaintiff’s duty to warn; and (2) Under the evidence, any failure by plaintiff to give timely and adequate warning could not have been a proximate cause.” (Italics ours.)

Appellant argues that the mentioned instructions “stressing plaintiff’s failure to give an adequate and timely warning, without sufficiently hypothesizing a preliminary finding of facts necessary to give rise to a duty upon plaintiff to warn, were preju-dicially erroneous in that the jury could have directed [sic] a verdict for defendant simply because plaintiff did not give a warning.” Appellant also argues that, “An instruction authorizing the jury to return a verdict for a party must require the finding of all essential fact issues necessary to establish the legal proposition on which the right to verdict is based.” Appellant further argues that Hagen’s testimony clearly illustrates that he was at all times aware of the movement of plaintiff’s vehicle, since he described the alleged movements with particularity. However, it was not the movement but the sudden stop that caused the trouble. Appellant further says that there was no evidence that a warning by plaintiff would have avoided the collision.

In considering this assignment we must keep in mind that Instruction No. 2 was a contributory negligence instruction based upon plaintiff’s conduct in suddenly moving his automobile into the path of the streetcar and suddenly stopping it there without giving warning of his intention to suddenly stop. Instruction No. 3 submitted defendant’s counterclaim against plaintiff; and No. 4 submitted a finding that defendant was not negligent in the respects claimed in plaintiff’s Instruction No. 1. That the plaintiff gave no timely and adequate warning of his intention to suddenly stop in the path of the streetcar is, in effect, conceded. Appellant’s argument disregards the fact that Instruction 2, on contributory negligence, submitted a finding that plaintiff “knew, or in the exercise of the highest degree of care, should have known that in so operating said automobile in the respects set out above there was danger of a collision with said streetcar and that in so operating said automobile Austin Emert failed to exercise the highest degree of care and was negligent, and that such negligence, if any, directly caused or directly contributed to cause said collision, then, in that event, you must find the plaintiff was con-tributorily negligent and he cannot recover against the defendant under Instruction No. 1, and this is true even though you find that the defendant was negligent under said Instruction No. 1.” The instruction properly submitted proximate cause to the jury.

Appellant further insists that Instructions 2, 3 and 4 on their face present a mixture of legal theories so inconsistent that, when given together, the effect was to confuse and mislead the jury. Under this point appellant says that Instruction 2, by its reference to Instruction 1, submitted two diametrically opposite conceptions of the facts. Apparently this contention is based on the fact that Instruction No. 2, submitting contributory negligence, properly provided that, if both plaintiff and defendant were negligent, plaintiff could not recover.

Appellant further insists that Instructions 2 and 4 submitted the position of plaintiff’s sudden stop “as being in the path of the streetcar” and that Instruction No. 3 placed the left side of plaintiff’s car as one foot north over the south rail. Of course, it is clear that, if plaintiff had not stopped his automobile within the path of the streetcar there could have been no collision. We find no conflict in the respect mentioned. Appellant further argues that Instruction 2 directed a verdict for defendant on the facts therein submitted, even though defendant was negligent under Instruction No. 1; that Instruction No. 4, directed a verdict for defendant provided defendant was not negligent under Instruction No. 1,. and that these instructions were on their face so prejudicial, confusing and misleading that reasonable doubt arises as to their true meaning. We find no merit in these assignments. While these instructions may have been confusing to counsel, as counsel insists, we find nothing therein prejudicially erroneous. Nor do we believe they would' confuse or mislead the jury to plaintiff’s-prejudice. The factual situation stated in: these instructions does not bring them within the situation presented in Hamell v. St. Louis Public Service Co., Mo.App., 268 S.W.2d 60.

Appellant’s final assignment clearly demonstrates that counsel for appellant failed to read and comply with Supreme Court Rule 83.05, V.A.M.R. printed in the April, 1963 Docket, when preparing appellant’s-brief in this case.

The assignment is as follows r “The Trial Court erroneously overruled' plaintiff’s motion for new trial for the reason that plaintiff was denied the right to a fair and impartial trial by reason of prejudicial errors of the trial court in: a) Admitting over the objection of plaintiff improper, incompetent and prejudicial evidence offered by defendant; b) Permitting prejudicial and improper statement, comments, and arguments by defendant’s counsel, over proper objection by plaintiff; c) Sustaining the objections of defendant’s counsel to proper argument, statements and comments of plaintiff’s counsel; d) Admitting, over the proper objection of plaintiff, prejudicial hearsay opinion evidence; e) Sustaining objection to proper argument of plaintiff’s counsel that the doctors mentioned in cross-examination by defendant’s counsel as being experts in their field were not called to testify by defendant; all of said errors, materially and prejudicially affecting the merits of plaintiff’s cause, thereby depriving plaintiff of a fair, impartial and dispassionate consideration by the jury.”

Supreme Court Rule 83.05(c) provides that, “The fair and concise statement of the facts shall be in the form of a statement of the facts relevant to the questions presented for determination.” The statement of facts in appellant’s brief does not present any basis whatsoever for the matters assigned as error under subdivision III of appellant’s brief.

Further, except for possibly III (e) there has been no attempt to comply with Supreme Court Rule 83.05(a) (3) and (e) of the rule as to points relied on, “ * * * which shall show what action or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous * * The matters complained of are not specifically set out, nor is it “concisely stated why it is contended that the court was wrong in any action or ruling sought to be reviewed” under this general assignment as to error in the court’s action in overruling plaintiff’s motion for a new trial. Assuming, without deciding, that Assignment III (e) is sufficient, we find no abuse of the court’s discretion in making the ruling complained of. The other subdivisions of this assignment present nothing for proper review, and they may be disregarded.

Finding no reversible error in the record presented, the judgment is affirmed. It is so ordered.

All concur.


author: WESTHUES, Special Commissioner..

text:
    ST. LOUIS UNION TRUST COMPANY, A Corporation, and William V. Curran, As Trustees Under a Certain Indenture of Trust of Gertrude Grove, Dated June 15, 1927, Plaintiffs-Respondents, v. James H. GROVE et al., Defendants, James H. Grove and Gertrude Grove Bland, Defendants-Appellants.
    No. 49472.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.

      Coburn, Croft & Cook, Richmond C. Co-burn, Gerald M. Smith, St. Louis, for defendants-appellants.
    Armstrong, Teasdale, Roos, Kramer & Vaughan, William H. Armstrong, William H. Webster, Edwin S. Baldwin, St. Louis, for respondents.
    Paul Brackman, Clayton, guardian ad litem and as atty. for certain respondents Gertrude Bland Platt and Cynthia Bland Gerhard.
   WESTHUES, Special Commissioner..

On June IS, 1927, Gertrude Grove, widow of Edwin W. Grove, executed an Indenture of Trust by which she conveyed' her share of her husband’s estate to trustees for purposes which we shall state later in this opinion. Her husband had died on January 27, 1927.

On June 29, 1957, the trustees, St. Louis-Union Trust Company, a corporation, and! William V. Curran, a successor trustee,, filed a declaratory judgment action seeking; a determination of the rights of the beneficiaries of the trust and the duties, authority, and power of the trustees. The trial' court entered a decree adverse to three of the defendants, James H. Grove, Edwim W. Grove III, and Gertrude Grove Bland,, all grandchildren of Gertrude Grove, maker of the trust. James H. Grove and Gertrude-Grove Bland appealed from the judgment.

By the provisions of the trust agreement,, the income of the trust estate was directed to be paid to Gertrude Grove during her life. She died on June 21, 1928. Thereafter, the income was to be paid to eight annuitants in monthly stipulated amounts- and to two charities in yearly stipulated amounts. The balance of the income was-to be paid to Edwin W. Grove, Jr., son of Gertrude Grove, for life or until he reached the age of 50 years. It was provided in the trust agreement that should Edwin W. Grove, Jr., die before he reached the age of 50 years the estate should be divided in two parts. Edwin W. Grove, Jr., died on May 30, 1934, before he was 50 years old.

Article Sixth of the trust agreement, requiring a division of the trust estate into-two parts, reads as follows:

“Sixth: If Grantor’s said son, Edwin W.. Grove, Jr., shall not survive her, then on her death, or -if her said son shall survive her and shall be at the time of her death fifty (50) or more years of age, then on her death, or if her son shall survive her and shall thereafter die before reaching the age of fifty (50) years, then on his death, or if.' Tier said son shall survive her and shall thereafter live to be fifty (50) years of age, then on his arriving at the age of fifty (50) years, said Trustees shall divide said trust estate into two separate and distinct parts. Into the first part of said trust estate said Trustees shall set aside and place so much of said trust estate as may he needed to safely and continuously produce and pay all of the incomes, or annuities, provided for in paragraph ‘Ninth’ of this Trust Indenture. Into the second part of said trust estate said Trustees shall set aside and place all of the rest of said trust estate. Said Trustees shall continue to hold and manage each of said parts of said Trust Estate under the powers and authority herein granted and shall dispose of each of said parts of said trust estate and of the income therefrom as hereinafter provided.”

In 1934, when the trustees were confronted with the duty of dividing the trust ■estate into two parts, the financial condition of the trust estate was very uncertain. Edwin W. Grove, the husband of Gertrude, died as above stated on January 27, 1927. Gertrude had renounced the provisions of the will of her husband and had chosen to take a one-third share of the estate. The husband’s estate was not finally settled until 1940.

The trustees had been given custody of the property Gertrude Grove had received from her husband’s estate subject to an agreement that any property needed to settle claims against the estate of Edwin W. Grove should be returned to satisfy such claims. However, in 1934, suits were pending against the estate of Edwin W. Grove in amounts exceeding the sum of $7,000,000. These suits and claims were not finally disposed of until the years 1937, 1938, 1939, and 1940. In the circumstances, the trustees wisely retained all of the assets to insure the payments of the annuities provided for in the trust agreement.

Not until all of the claims against the estate of Edwin W. Grove had been disposed of and that estate settled in 1940 were the trustees released from the agreement to return trust assets to the Edwin W. Grove estate. Up to that time, the trustees were not in a position to make a safe and intelligent division of the property of the trust estate as directed by the trust agreement.

The duties of the trustees as to part two of the trust were provided for in Article Eighth of the trust agreement. It reads as follows:

“Eighth: If Grantor’s said son, Edwin W. Grove, Jr., shall not be living at the time of the said division of said trust estate, or, if living, shall not take said second part of said trust estate, as his absolute property, in accordance with the above provisions for him, then said second part of said trust estate shall be and remain a part of said trust estate, but shall thereafter be held, managed and disposed of by said Trustees for the benefit of the three children of the said Edwin W. Grove, Jr., who are now living, — Edwin W. Grove, III, James Henry Grove and Gertrude Mat-thewson Grove. Said Trustees shall pay the net income from said second part of said trust estate to said children, or expend the same for them, giving to each of them an equal share as nearly as practicable, until the said Gertrude Matthewson Grove, the youngest of said children, shall have arrived at the age of twenty-five (25) years, on January 31st, 1941, or, in case of her prior death, until January 31st, 1941, and on January 31st, 1941, said trust, as to said second part of said trust estate, shall cease and terminate and the principal or corpus of said second part of said trust estate and all undistributed income therefrom shall be distributed by said Trustees to said children, share and share alike. If either of said children shall have died before that date, without leaving a bodily heir then surviving, the share of such child shall go and be given to the other of said children. If either of said children shall have died before said date and shall have left bodily heirs, or a bodily heir, then surviving, then the said heirs or heir of said deceased child shall take and receive the share of the parent. On said distribution this trust shall cease and terminate as to said second part of said trust estate.”

(We note here that Gertrude Matthew-son Grove, mentioned in Article Eighth, is the same person as Gertrude Grove Bland, one of the appellants.)

On January 2, 1941, the three children of Edwin W. Grove, Jr., and grandchildren of Gertrude Grove, wrote a letter to the trustees, which reads:

“Mr. W. V. Curran and St. Louis Union Trust Co., Trustees under Conveyance of Trust of Gertrude Grove dated June 15, 1927
“Gentlemen:
“Under the terms of the above Indenture of Trust you are directed, after the death of Gertrude Grove and upon the death or arrival at fifty years of age of Edwin W. Grove, Jr., to divide said trust estate into two parts. The first part continues for the purpose of paying certain annuitants until the death of the last survivor of said annuitants, and the second part is to terminate upon the arrival of Gertrude Grove Bland at twenty-five years of age, which event will occur on January 31st, 1941.
“It is our understanding that due to the unusual character of the securities comprising this trust fund, none of which are certain to yield a regular and steady income and particularly the stock of the Grove Laboratories in which the amount of the dividends has varied greatly in the past, and the undivided interest in the royalties which might under certain conditions not be available, you have not made the division of the estate. We understand the desirability of paying these annuitants out of income rather than resorting to encroachment on the principal, and it is our desire that these annuitants be paid from income rather than from principal.
“Because of the uncertainty of the income we suggest that all of the assets be retained in the first part of this trust in order to assure the payment of the annuities from income and that no division or distribution be made on January 31, 1941.
“We also further request and direct that no division or distribution be made except upon the joint order of the undersigned or, in the event of the death of any of them, the survivors.
"WITNESSES:
“(Signed) MARGUERITE C. GROVE
“(Signed) A. S. BLAND, JR.
“(Signed) F. B. GROVE”
“(Signed) JAMES H. GROVE
“(Signed) EDWIN W. GROVE
“(Signed) GERTRUDE GROVE BLAND

Thereafter, the trustees continued to administer the trust as before, retaining all of the assets in part one of the trust.

It was stipulated that a number of the annuitants had through death decreased from year to year so that instead of requiring in excess of $20,000 per year, only $3800 was needed in 1960 to make these payments. The total value of the trust estate on September 8, 1960, as shown by Exhibit F of the stipulation of facts, was $3,659,266 and the estimated annual income was $83,326.

On May 7, 1957, the three children of Edwin W. Grove, Jr., wrote a letter to the trustees, the body of which reads as follows :

“Please refer to the letter written to you by the undersigned on or about January 2, 1941.

“Since writing you that letter the commitments to annuitants under the first trust created by the Trust Agreement executed by Gertrude Grove on June 15, 1927, of which you are Trustees, have been reduced by death of several of the beneficiaries to less than $10,000.00 annually. Furthermore, the income realized by the trust estate from investments other than the stock of the Grove Laboratories, Inc., and the Royalty Contract held by Edwin W. Grove at his death, has for the last several years been sufficient to fully satisfy all annuity payments required to be made to the surviving beneficiaries. There is every reason to believe that such will be the case for as long as the first trust continues.

“Under Paragraph Sixth of the Trust Agreement the Trustees are required to set aside and place in the first trust only so much of the corpus of the trust estate as may be needed to safely and continuously produce and pay all of the incomes or annuities provided for in Paragraph Ninth of the Trust Agreement. Under these circumstances it is evident that the requirements of the Trust Agreement will be fully met by placing in the first trust all securities other than the stock of Grove Laboratories, Inc., and the Royalty Contract. The income to be expected from such securities is not subject to the fluctuations which have been experienced with reference to the other income-producing assets of the trust estate and will safely and amply assure the payment of the annuities to all remaining beneficiaries.

“We, therefore, request that you place in the first trust all such securities and that you distribute to the three children of Edwin W. Grove, Jr., pursuant to Paragraph Eighth of the Trust Agreement the common stock of the Grove Laboratories, Inc., and the Royalty Contract now held by you as Trustees of the trust estate.

“Very truly yours,
“(Signed) James H. Grove
“(Signed) Gertrude G. Bland
“(Signed) Edwin W. Grove III”

After receiving the above letter, the trustees filed this suit on June 29, 1957, to determine the rights of the beneficiaries of the trust and the duties of the trustees.

It is agreed that all parties having any interest in the trust estate, present or future, were made parties to the suit, including all of the annuitants. The children of defendants James H. Grove, Edwin W. Grove III, and Gertrude Grove Bland, minors, individually and as representatives of the class to which they belong, were made defendants and Paul Brackman was appointed as Guardian Ad Litem for them.

The points of law were well briefed by all parties. The facts were stipulated. We commend the attorneys for confining their contentions to the vital questions of law governing the case.

It was and is the contention of plaintiffs-trustees and that of the parties represented by the Guardian Ad Litem that the trustees, on May 30, 1934, exercised their power by dividing the trust estate into two parts: that is, that the trustees retained all of the assets in part one of the trust and placed no assets in part two. Further, it is contended that having exercised that power, the trustees did not have and do not now have the authority to make any further division. The result would be that the trustees would retain all of the property until such time as all of the annuitants have passed away and then the trustees would distribute the assets of the estate to the three grandchildren of Gertrude Grove or their descendants.

It is the contention of the three grandchildren of Gertrude Grove, two of whom have appealed from the judgment, that, absent any specific direction in the trust agreement, the trustees would be bound to turn over to these grandchildren, on the death of their father, all of the assets of the trust estate not required to secure the payments of the annuities. These parties urge further that even though the trustees exercised the power of dividing the estate in 1934, in the circumstances, it is the duty of the trustees to make a further division and retain only such of the estate as may be needed to pay the annuities, citing Griffen v. Keese, 187 N.Y. 454, 80 N.E. 367.

In the brief filed by the Guardian Ad Litem and in that of the trustees, the contention is made, as stated in the brief of the trustees, that “The trial court correctly ruled that the Trustees acted properly in retaining all of the assets in the first part of the Trust Estate on May 30, 1934,” citing among other authorities the case of Bakewell v. Mercantile Trust Company, Mo., 319 S.W.2d 600, and Bank of Kansas City v. Hyde, Mo., 363 S.W.2d 647. We fully agree. Not only do we agree, but we say further that the trustees were justified in retaining all of the trust property and not placing any of the assets in part two of the trust estate until such time as the estate of Edwin W. Grove was settled and the assets of the trust estate were no longer subject to being recalled to pay claims of the Edwin W. Grove estate. This event occurred in 1940. The time was then near at hand when, under the directions of Article Eighth of the trust agreement, the trustees were to turn over the assets in part two of the trust to the grandchildren of Gertrude Grove. At that time, that is, 1941, these three grandchildren authorized the trustees, in writing, to retain all of the assets until such time as they jointly requested a distribution. The trustees did so retain all of the assets. On May 7, 1957, these grandchildren requested a distribution, informing the trustees to withhold sufficient assets to insure the payments of annuities.

It was stipulated that the trustees had at that time and now have in their possession assets in the trust estate of a value far in excess of what is needed to insure the annuity payments.

It is our opinion that the trustees have not performed the task of dividing the assets of the estate into two parts as directed' by Article Sixth of the trust agreement which says, “said Trustees shall divide said trust estate into two separate and distinct parts.” Looking at Webster’s New International Dictionary, Second Edition, we find a number of definitions of the word “divide,” such as “to sever into two or more parts or pieces,” “to cause to be separate; to keep apart by a partition.” But, why look to a dictionary for a meaning of the word “divide”? The trust agreement specifically states what the trustees shall do. Note the directions therein: “Into the first part of said trust estate said Trustees shall set aside and place so much of said trust estate as may be needed to safely and continuously produce and pay all of the incomes or annuities, * * *. Into the second part of said trust estate said Trustees shall set aside and place all of the rest of said trust estate.” It is our opinion that the trustees have not carried out that plain mandate of the trust agreement.

We rule that the trustees were justified in not making such a division so long as the estate of Edwin W. Grove was not settled; that the trustees were justified in not making a division when authorized not to do so by the three beneficiaries of part two of the trust. However, in 1957, when the three grandchildren requested a division, the trustees should have honored that request. Instead, the trustees, for the purpose of having questions definitely settled, promptly filed this suit under the Declaratory Judgment Act, Chapter 527, V.A.M.S.

It is urged that the trust agreement directed the trustees to divide the estate on the death of Edwin W. Grove, Jr. We find nothing in the trust agreement specifying a time limit. A duty imposed, if not performed for a good reason, should be performed when the cause for delay is removed. It seems clear that the maker of the trust agreement intended that the grandchildren, in case her son was not then living, should have all of the trust property not needed to pay annuities, when the youngest reached the age of 25 years, which occurred in 1941. In Article First of the trust agreement, granting the trustees certain powers, it is stated that they were “to take any and all steps which may be necessary or needful in carrying out the purpose of this trust.”

What we have said renders unnecessary a consideration of other points briefed.

We rule that the trial court erred in holding that the trustees had exercised their power under Article Sixth of the trust-agreement in 1934; further, that the trial court erred in holding that the trustees have not now the power to make a division of the estate as directed in Article Sixth of the agreement. In the prayer of the petition, plaintiffs-trustees asked that the court, if it should hold that they have the power to divide the estate, advise the trustees which assets should be held in part one of the estate and which assets should be transferred to part two. We rule that such a duty rests primarily upon the trustees where it was placed by the trust agreement. Furthermore, the trustees are in a better position to perform that task than the courts. We have no reason to believe that the task will not be faithfully performed by the trustees as required by the law governing the duty of trustees. 90 C.J.S. Trusts § 247d, p. 238. A sufficient amount of the assets should be retained by the trustees to insure the payments of the annuities. 90 C.J.S. Trusts § 356, p. 653. The balance is to be placed in part two of the estate and distributed in accordance with Article Eighth of the trust agreement.

The trial court may, if necessary, adjust and allow attorneys’ fees as the circumstances require.

The judgment of the trial court should be, and it is, hereby reversed and the cause remanded with directions to the trial court to enter a decree and judgment in accordance with the views expressed in this opinion. It is so ordered.

All concur.


author: HOUSER, Commissioner.

text:
    Perry William SHEPHERD, Appellant, v. DEPARTMENT OF REVENUE of the State of Missouri, Safety Responsibility Unit, P. O. Box 506, H. J. Turnbull, Supervisor, and A. C. Abbott, Respondents.
    No. 49760.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.

      O. E. Brown, Sedalia, for appellant.
    Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondents.
   HOUSER, Commissioner.

The director of revenue, charged with the duty of revoking vehicle operating privileges under the “point system,” § 302.-304, revoked plaintiff-appellant’s chauffeur’s license for a 12-month period. Plaintiff filed a petition for review in the circuit court of the county of his residence under § 536.100 et seq., of the Administrative Review Act, Chapter 536, as provided for by § 302.311, joining as defendants “Department ■of Revenue of the State of Missouri, Safety Responsibility Unit, P. O. Box 506, Jefferson City, Missouri, H. J. Turnbull, Supervisor, and A. C. Abbott.” The cause was tried by the circuit judge and judgment was rendered affirming the action of the director of revenue. Plaintiff has appealed to the Supreme Court.

Appellant asserts that this Court has jurisdiction “under Article V, Sections 2 and 3 of the Constitution of the State of Missouri, and for the further reason that the Department of Revenue of the State of Missouri is one of the parties to this suit.” Respondents claim that we have jurisdiction “inasmuch as state officers, as such,, are parties to the suit.”

Examining the matter of jurisdiction sua sponte, as it is our duty to do, we find no ground for the exercise of jurisdiction by this Court. Neither the Department of Revenue of the State of Missouri nor the safety responsibility unit of that department, is a “state officer” within the meaning of the constitutional provision. Defendant H. J. Turnbull is named in the caption as supervisor of the safety responsibility unit, and defendant A. C. Abbott is sued in his individual capacity. The Missouri Blue Book 1961-1962 lists H. J. Turnbull as supervisor of driver’s license registration, not supervisor of safety responsibility. According to that publication A. C. Abbott was supervisor of the safety responsibility unit. The supervisors of these divisions of the department of revenue are not state officers. A “state officer” within the meaning of Article V, Section 3, of the constitution V.A.M.S. regulating the jurisdiction of this Court must exercise a portion of the sovereign power of government independently and without control of a superior power other than the law. These supervisors are employed by and under the supervision, direction and control of the director of the department, and do not act independently or without control of a superior power other than the law. Section 32.050, V.A.M.S., as amended Laws 1957, p. 496, § 1; Laws 1958, 2nd Ex.Sess., p. 170, § 1.

At the last session of this Court we retained jurisdiction in a driver’s license revocation case in which the director of the department of revenue, sued in his official capacity, was the defendant, and in which a constitutional question was raised, Wilson v. Morris, Director of Revenue of Missouri, Mo., 369 S.W.2d 402, but the director of the department is not joined as a party defendant in the case before us now; nor is any constitutional question raised, and none of the other grounds for invoking the jurisdiction of this Court, as provided for in Article V, Section 3, supra, exist.

Accordingly, we order the cause transferred to the Kansas City Court of Appeals.

COID, C., concurs.

PER CURIAM.

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

All of the Judges concur.

      . All section and chapter citations refer to RSMo 1959, and Y.A.M.S.

      . See State ex rel. Gehrs v. Public Service Commission, 338 Mo. 177, 90 S.W.2d 390, State ex rel. State Highway Commission v. Hudspeth, Mo.Sup., 297 S.W.2d 510, Parker v. Unemployment Compensation Commission, 358 Mo. 365, 214 S.W.2d 529, Trokey v. United States Cartridge Co., Mo.Sup., 214 S.W.2d 526, White v. State Social Security Commission, 345 Mo. 1046, 137 S.W.2d 569, and Howell v. Division of Employment Security in Department of Labor and Industrial Relations of Missouri, 358 Mo. 459, 215 S.W. 2d 467, which hold that neither the public service commission, the state highway commission, the industrial commission, the social security commission nor the division of employment security of the department of labor and industrial relations is a “state officer” within the contemplation of the constitutional provision.

      .As in the case of a “state officer” within the meaning of Article VII, Section 13 of the constitution, prohibiting the increase of the compensation of state officers during the term of office. State ex rel. Webb v. Pigg, 363 Mo. 133, 249 S.W.2d 435.