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    George S. NORRIS and Anna C. Norris, Respondents, v. Jean WINKLER, Appellant.
    No. 24314.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.

      Terence C. Porter, Welliver, Porter & Cleaveland, Columbia, for appellant.
    John J. Frank, Hullverson, Richardson & Hullverson, St. Louis, Falzone & Falzone, Moberly, Corinne Richardson, St. Louis, of counsel, for respondent.
   HOWARD, Judge.

This case grows out of a collision at an uncontrolled intersection which occurred on June 10, 1963, in Moberly, Missouri. A jury trial resulted in verdict and judgment for the plaintiffs in the amount of $5,050.00. Defendant has duly appealed to this court. We shall refer to the parties as they appeared below. When we refer to plaintiff in the singular we mean Mr. Norris.

Prior to the collision the plaintiffs, Mr. and Mrs. George S. Norris, were driving south on Alt Street and the defendant Mrs. Jean Winkler, with her children, was driving west on Carpenter Street. Mr. Norris testifed that he was traveling 15 to 20 miles an hour, “give or take a mile or two”. He testified that when he was 40 to 45 feet back from the intersection, or “40 some odd feet” back, he looked to his left, but that his view was obstructed by some bushes, a tree and a utility pole and he did not see any traffic coming from his left. He again looked to his left when he was 25 to 30, or 20 to 30, feet from the intersection, that his view was not obstructed at that time, that he saw approximately 60 feet to the east on Carpenter Street and that he did not see any oncoming traffic. He stated that he proceeded across the intersection at a speed “not in excess of 15 miles per hour and under 20”. He glanced to his left, out of the corner of his eye, just before the impact, but did not see defendant’s car. He stated that at the time of impact his speed was 15 miles per hour “give or take a mile or two”.

Mrs. Norris corroborated her husband’s testimony and stated that she looked to her left when she was 20 to 25 feet from the intersection and did not see any cars approaching from her left. When the front of plaintiffs’ car was just past the middle of the intersection, plaintiff stated “I was hit a terrific impact”. Plaintiffs’ car was knocked up over the curb, across the parking and the sidewalk and into a yard and almost against a house. Mr. Norris was thrown partly out of the car and dragged along until it came to a stop. He suffered a broken pelvis, and some minor abrasions. He was taken to the hospital in Moberly and was later transferred to the Wabash Employees’ Hospital in Decatur, Illinois.

Neither Mr. Norris nor his wife saw defendant’s car prior to the collision. Defendant testifed that she was traveling, “I will say 15 to 20 miles per hour”. That she did not see plaintiffs’ car until she was 3 feet from the east curb line of Alt Street, and at that time plaintiffs’ car was one car length back from the north curb line of Carpenter Street. Defendant attempted to put on her brakes and swerve to her left, hut could not avoid the collision. She said that “Plaintiff shot right in front of me” increasing his speed. Defendant told the investigating police officer that she was going 20 miles per hour at the time of the collision. The police place the point of impact as being 13 feet 4 inches south of the north curb line of Carpenter Street and 12 feet west of the east curb line of Alt Street. From the testimony and the exhibits, it appears that the right front corner of defendant’s car struck the left front fender of plaintiff’s car, at a point approximately even with the rear of the left front wheel. Additional facts will be set forth as needed in the opinion.

On this appeal defendant first complains that the trial court erred in failing to sustain her motion for a directed verdict and overruling her after trial motion to set aside the verdict and judgment for the plaintiffs and enter judgment for the defendant because (1) “the plaintiff was guilty of contributory negligence as a matter of law” and (2) “plaintiffs did not make a submissible case of humanitarian negligence”. Defendant’s point one does not further elaborate. She does not give any reason why plaintiffs were contributorily negligent as a matter of law and does not tell us in what manner plaintiffs failed to make a submissible case of humanitarian negligence. The motions filed in the trial court are no more illuminating. They simply contain the same conclusions.

Plaintiffs contend that this point one of defendant’s brief is insufficient to present anything for review. This contention is well taken. Defendant has failed to comply with the requirements of Civil Rule 83.05, V.A.M.R. The discussion in Myers v. Karchmer, Mo., 313 S.W.2d 697 is peculiarly appropriate to the case at bar. However, as in that case, we will consider the merits of defendant’s contentions.

From a careful reading of the argument contained in defendant’s brief, we are able to discover that she contends that plaintiffs were contributorily negligent as a matter of law (1) in failing to maintain a lookout and failing to see what was plainly visible, and (2) in entering the intersection without stopping. Defendant bases her argument on the assumption that the two cars were both -proceeding at the same speed of 15 miles per hour. Thus when plaintiff looked to his left, defendant’s car was plainly visible and he was contributorily negligent as a matter of law either because he did not look when he said he did, or if he looked, he did not see what was plainly visible. In this argument defendant fails to consider the requirement that we give plaintiff the benefit of a consideration of the facts most favorable to the plaintiff and ignore evidence of the defendant, except as it may benefit plaintiff. When we consider the facts in this light, we see that when plaintiff was between 20 and 30 feet from the intersection he looked to his left and could see at least 60 feet east on Carpenter Street from where he was sitting, and did not see defendant. From this we can infer that defendant was more than 60 feet from the center of the intersection at this time. Plaintiff testified that he was going approximately 15 miles per hour, with a spread in his estimate of speed from 13 to 22 miles per hour. Plaintiff did not give any evidence of the speed of defendant’s car, because he did not see it prior to the collision. Defendant testified that she was going 15 to 20 miles per hour; she told the police officer she was going 20 miles per hour. Plaintiffs are not bound by this testimony. Plaintiffs’ evidence was that when defendant’s car struck their car there was a “terrific impact” and it appears to be undisputed that the force of the impact knocked plaintiffs’ car up over the curb, across what appears from the exhibits to be an abnormally wide parking, and across the sidewalk, into a yard and almost into' the house on the corner. From this evidence the jury could well have found that defendant’s speed was considerably in excess of 20 miles per hour. The plaintiffs are not bound by defendant’s evidence that she was only going IS miles per hour.

Defendant cites only one case on this issue and that is Dempsey v. Horton, 337 Mo. 379, 84 S.W.2d 621. Defendant’s brief contains a purported quotation from this case but it is inaccurate and places language in juxtaposition, which in the opinion is separated by a great amount of other reasoning, so that the context of the language as quoted, is not the same as that in which such language was used in the opinion. This cited case does not rule the point as it is presented in the case at bar. In our case the jury could well find that when the plaintiff first looked to his left he could not see east on Carpenter Street because his view was obstructed; that he again looked to his left when 20 to 30 feet from the intersection, and at that time, could and did see to the east on Carpenter Street at least a distance of 60 feet, and that defendant was not in view but was further back on Carpenter Street. It is in evidence that plaintiff’s view to the right or west on Carpenter Street was blocked by a hedge, some trees, a house etc., and that such situation required more than normal observation in the exercise of the required degree of care.

It is true that a motorist is required to keep a careful lookout, but he must look both to his right and to his left and forward (and in some cases also behind him). He can not look in one direction all the time, and neither is he required to keep his head in constant swinging motion from side to side. See Slaughter v. Myers, Mo., 335 S.W.2d 50, Burke v. Renick, Mo.App., 249 S.W.2d 513.

Here the plaintiff looked to his left when he was 20 to 30 feet from the intersection and did not see defendant. We can not say as a matter of law that defendant’s car was within this 60 feet and therefore in plain sight when plaintiff looked. There is no evidence as to the location of defendant’s car at that time, and we can not say that defendant’s car, wherever it may have been, was plainly visible. Plaintiff then looked to his right while proceeding on into the intersection. There is no evidence at what point plaintiff could have seen defendant’s car, if he had looked again. But as plaintiff continued forward into the intersection, he very soon reached a point where he could no longer stop short of the path of defendant’s car and thereby avoid the accident. If he had looked after he had reached that point it would have done no good. Thus, even if we assume he was negligent in not looking again, we can not say as a matter of law that looking would have enabled him to have avoided the accident. Such negligence, if any, occurring after it was too late to avoid the collision would not be a proximate cause of the collision and damage.

In this case we must remember that under the ordinance of the City of Moberly, which was in evidence, if plaintiff entered the intersection first, or at approximately the same time as defendant, he had the right of way, and could reasonably assume that traffic approaching from his left would yield the right of way, which he was proceeding to exercise. Under these circumstances we can only hold that this question was one which might have been presented to the jury, but is not a matter of law for decision by the court. See Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918; Hutson v. Highley, Mo.App., 384 S.W.2d 278; Jones v. Fritz, Mo.App., 353 S.W.2d 393; Hunt v. Babb, Mo.App., 340 S.W.2d 177; Fuzzell v. Williams, Mo.App., 288 S.W.2d 372; Harding v. Peterson, Mo.App., 227 S.W.2d 88.

The discussion of the Supreme Court in the case of Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, is particularly revealing in this matter. It is there said: “Defendant had the burden of proving contributory negligence of plaintiff. Contributory negligence as a matter of law can seldom be established by oral testimony offered solely by defendant. Usually it must appear in plaintiff’s case, or be established by testimony on the part of defendant which plaintiff concedes to be true, or by documentary evidence or proof of facts or circumstances by defendant which leave room for no other reasonable inference. State ex rel. Thompson v. Shain, 349 Mo. 1075, 163 S.W.2d 967. In the exercise of his duty to exercise care in looking out for his own safety, plaintiff was obliged to observe the entire situation at the intersection as disclosed by his view ahead and laterally, but he obviously could not maintain an uninterrupted lookout in both directions. There was evidence tending to show that plaintiff and defendant reached the intersection at approximately the same time, and there was evidence tending to show that plaintiff reached and moved into the intersection when defendant was yet some distance to the eastward. Although in the exercise of care plaintiff must have seen and become aware of defendant’s approach even though the view to plaintiff’s left was somewhat obstructed, we believe it should not be said as a matter of law that, in the circumstances of the collision including the circumstance of plaintiff’s favored position as a traveler approaching from defendant’s right, plaintiff was not justified in assuming that defendant would manage or regulate the speed and progress of her automobile so that plaintiff could pass safely over the intersection.”

Defendant’s contention that plaintiffs were contributorily negligent as a matter of law “in driving into the intersection without stopping” is supported only by citing the case of Frandeka v. St. Louis Public Service Co., Mo., 234 S.W.2d 540. This case involved a fire chief’s car on an emergency run with red light flashing, as it was crossing the broad intersection of 12th and Market Streets, in St. Louis, Missouri, against the red light. The driver saw the bus with which he later collided, and which had entered the intersection on its green light. In that case the court found that it was apparent to the driver that the bus was not going to yield the right of way at a time when the driver could have avoided the accident. This has absolutely no application to the case at bar where plaintiff never did see defendant. We therefore hold that plaintiffs were not contributorily negligent as a matter of law for either of the reasons advanced by the defendant.

As to defendant’s contention that plaintiffs failed to make a submissible humanitarian case, her argument is again based on the assumption that both vehicles were proceeding at the same speed and were therefore at equal distances from the intersection and point of collision at all times. Again we must consider the evidence in the light most favorable to the plaintiffs, and in so considering the evidence, we can not assume this premise of equal speed and equal distance from the intersection.

In her argument, defendant contends that under the evidence plaintiffs did not enter the zone of imminent peril until they crossed defendant’s line of travel. In support of this contention defendant cites Banks v. Koogler, Mo., 291 S.W.2d 883; Frandeka v. St. Louis Public Service Co., Mo., 234 S.W.2d 540; Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972; Claridge v Anzolone, 359 Mo. 65, 220 S.W.2d 33.

In the Banks, Frandeka and Claridge cases, the plaintiffs saw defendant’s vehicle prior to the time plaintiff entered the zone of imminent peril and thus such zone was reduced to its narrowest limits. This is not true in the present case. Here plaintiff was oblivious to defendant’s approach and unaware of his danger up to the very point of impact. Thus, even under the authorities cited by defendant the zone of imminent peril was widened. It was certainly wider than the area over which defendant’s car would travel as it crossed the intersection. The defendant had a duty when approaching this intersection, to observe what was visible; and, as soon as it became apparent to her, or should have become apparent to her if she were performing her duty to look and to see, that plaintiff was oblivious and was going to proceed across the intersection in front of her, it became her duty to take whatever action she could, with safety to herself and her children passengers, to avoid the collision.

From photographs introduced in evidence, the jury could find that when defendant was 89 feet back from the center of Alt Street, she could see a car at least 100 feet north on Alt Street. When she was 138 feet back from the center of Alt Street, she could see far enough back on Alt Street to see the complete front of the corner house and the house next to it, facing her and facing Alt Street. This distance is not in evidence, but from the photographic exhibits it is apparent that it is a considerable distance and would give ample opportunity to avoid a collision at the intersection if plaintiffs’ car was then visible. Thus we cannot say as a matter of law, as the court held in West v. St. Louis-San Francisco Ry. Co., Mo., 295 S.W.2d 48, that by the time defendant could have discovered plaintiffs’ obliviousness it was too late for defendant to take the necessary action to avoid the collision. Neither can we say, as the court said in Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972, that the question of defendant’s ability to avert the collision after plaintiffs were in a position of imminent peril would be one of pure conjecture if submitted to the jury.

Defendant also argues that, because the humanitarian negligence instruction based defendant’s negligence upon failure to slow her vehicle rather than on failure to stop, no submissible case was made. This because the jury could not find that a slowing would have allowed plaintiffs to have escaped. In support of that argument defendant cites Harrow v. Kansas City Public Service Co., Mo., 233 S.W.2d 644. In that case plaintiff was standing on the street car tracks waiting for traffic to clear before he walked on across the street. He was oblivious of the approach of the street car and the court held that no humanitarian case was made on failure to slow the vehicle because the mere slowing would not have helped plaintiff unless he moved from the street car track, and since he was oblivious there was nothing from which the jury could find that he would have moved in time, even if the street car had been slowed. It is apparent that this argument is not applicable to the case at bar because the evidence shows and the. jury could certainly find that the plaintiff was proceeding on across the intersection, and in the matter of a fraction of a second would have cleared the line of defendant’s travel.

Under the authority of many cases, of which State ex rel. Sirkin & Needles Moving Co. v. Hostetter, 340 Mo. 211, 101 S.W.2d 50 may serve as an example, defendant had a duty to observe what was clearly visible and the jury could find that when plaintiff was 20 to 30 feet from the intersection defendant was more than 60 feet from the intersection, according to plaintiff’s testimony, and according to the exhibits defendant could see plaintiffs’ car at that point when she was as far away as 138 feet, or more. The jury could find that if defendant had performed her duty and observed plaintiff as soon as she could, she would have observed him approaching and proceeding through the intersection at undiminishing speed and thus would have become aware of his obliviousness in ample time to have slowed her car sufficiently to have allowed plaintiff to proceed across the intersection without harm. It is apparent that she did not keep a lookout because she testified that she did not see plaintiffs’ car until she was only three feet from the intersection. Certainly under these facts the question was one for the jury. Plaintiffs made a submissible case. This is well demonstrated by the decision in the case of Catanzaro v. McKay, Mo., 277 S.W.2d 566, l. c. 569, where the court said: “Consequently, it is apparent that if defendant had slackened his speed at all plaintiff would have cleared defendant’s path. And certainly it is obvious that any slackening and swerving would have avoided the collision. We think under the circumstances a jury reasonably could have found that if defendant, after plaintiff came into imminent peril, had decreased his speed instead of increasing it (as the jury could find he did), the collision would have been avoided. And indeed the evidence, viewed most favorably from plaintiffs standpoint, was that the defendant driver did not take any action when he was 66 feet away (after reaction time). On the contrary, defendant driver testified that he did not see plaintiff until defendants’ car was 25 feet west of the intersection. He applied his brakes at that time, which caused skid marks about 25 feet long, and, as noted, the skid marks were such that the jury could reasonably find that defendant swerved sharply to his right into the center of plaintiff’s automobile. Thus, the jury reasonably could find that defendant driver, instead of taking action to avoid the collision when he was 66 feet away, continued to increase his speed until he was only 25 feet from the collision point.”

The court concluded: “All of which results in the conclusion that, under the evidence considered favorably to plaintiff, it may be demonstrated, without guess and conjecture, that the defendant driver, in the exercise of the highest degree of care, could have averted the casualty by slackening and swerving after he should have seen that plaintiff was in imminent peril. That conclusion precludes us from declaring as a matter of law that no submissible case was made. Ukman v. Hoover Motor Express Co., supra [Mo.] 269 S.W.2d [35] 39(5).”

We thus have ruled all of the contentions which may be gleaned from defendant’s argument under point one of her brief against defendant. Point four of defendant’s brief complains of the giving of plaintiffs’ humanitarian negligence instruction because it was “not supported by substantial evidence”. What we have just said rules this contention against defendant also.

Defendant next complains of the giving of instruction P-1 (for Mr. Norris’s cause of action) and instruction P-2 (for Mrs. Norris’s cause of action). These instructions are identical except that one refers to Mr. Norris and the other refers to Mrs. Norris. In pertinent part they read:

“The Court instructs the jury that if you find and believe from the evidence that Mr. Norris arrived at the intersection mentioned in evidence either before or at approximately the same time that the defendant did so, and that the defendant failed to yield the right of way to Mr. Norris and failed to permit him to proceed across the intersection ahead of the defendant, and that in so failing the defendant failed to exercise the highest degree of care and was negligent, and that Mr. Norris was injured as a direct result thereof, * * * ”

Defendant complains that these instructions “purport to give the plaintiffs an unqualified right to proceed across the intersection without regard to the question of whether a very careful person would do so under the same or similar circumstances”. In support of this assignment of error, defendant cites authority for the undisputed proposition that one who has the right of way at an intersection can not, by reason of such right of way, proceed to cross the intersection blindly and without regard for the circumstances. From this premise defendant reasons that instructions P-1 and P-2 should require the jury to find that the plaintiffs were exercising the highest degree of care in exercising their right of way and attempting to cross the intersection under the existing circumstances. This conclusion does not follow.

Defendant does not complain about that part of these instructions which advised the jury that plaintiff had the right of way if he arrived at the intersection either before or at approximately the same time as defendant. Her only complaint is that the instructions did not also affirmatively require the jury to find that Mr. Norris was in the exercise of the highest degree of care in proceeding through the intersection. While it is true that the law imposes such duty upon Mr. Norris under the circumstances here revealed, this is a matter of contributory negligence on the part of Mr. Norris, which does not diminish or in any way affect the duty of the defendant to yield the right of way under the circumstances which the jury was required to find. See Creech v. Blackwell, Mo., 298 S.W.2d 394, where the court said: “Even in the absence of a statute or ordinance so requiring, it is the rule in this state that the vehicle first reaching and entering an intersection has the right of way over a vehicle subsequently reaching the intersection, provided, of course, that the driver of the vehicle first entering the intersection would be contributorily negligent if he entered when it appeared or should have appeared to him as a reasonably prudent person that to enter would probably result in a collision. That proviso, however, as will be more specifically pointed out hereinafter, has to do with the contributory negligence of the first arrival and does not pertain to or affect or obviate the primary duty of the second arrival to permit the first in the intersection to pass in safety.”

Thus it would appear that in consideration of these instructions we are dealing with a contention of the defendant that the instructions are erroneous because they do not negative contributory negligence on the part of plaintiffs. As is set out in Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, Martin v. Kansas City, Mo., 340 S.W.2d 645, and Croney v. Pence, Mo.App., 346 S.W.2d 574, where the defense of contributory negligence is pleaded and evidence is adduced in support thereof, and where an instruction on contributory negligence is given, the plaintiff’s verdict directing instruction based on primary negligence must negative contributory negligence. This may be done either by an express requirement of the instruction referring to the contributory negligence instruction, or by a provision of plaintiffs’ verdict directing instruction affirmatively requiring a finding by the jury that the plaintiff was in the exercise of the highest degree of care.

In the present case the defense of contributory negligence was expressly pleaded and evidence was adduced bearing on such defense. Defendant submitted what she describes as a contributory negligence instruction (Instruction D-B) but such instruction was refused by the court (and we hereinafter rule that such refusal was proper) and no contributory negligence instruction was given. Thus the requirements of the above cited cases are not applicable in this case, but instead this case is ruled by the decision in Shepard v. Harris, Mo., en banc, 329 S.W.2d 1, which held that where a contributory negligence instruction was not given, the plaintiff was not required to negative contributory negligence in his verdict directing instruction. See also Moore v. Ready Mixed Concrete Co., supra. In reaching this conclusion the court said, l. c. 6: “It seems clear then that a plaintiff’s failure to negative his contributory negligence in a verdict-directing instruction is neither an omission of an essential element of his claim nor in any sense a misdirection as to the law. A plaintiff may recover when he has proved, in the jury’s judgment, the essential elements of his case. It follows that he is entitled to recover, irrespective of what the evidence may show as to contributory negligence (short of contributory negligence as a matter of law) unless his recovery is defeated by the jury’s finding for defendant on defendant’s affirmative defense pleaded, supported, and submitted.” The court concluded: “We are of the opinion and therefore hold that when a defendant fails to submit the affirmative defense of contributory negligence he has thereby abandoned that defense and it no longer remains an issue in the case for any purpose, and, consequently, a plaintiff’s verdict-directing instruction which ignores such abandoned issue of contributory negligence is not erroneous.” Therefore instructions P-1 and P-2 are not erroneous in the manner claimed by defendant.

Defendant also complains of the refusal of the trial court to give her preferred instruction D-B. She denominates this as a contributory negligence instruction but it does not require a finding of negligence on the part of plaintiff. It is in the form of a verdict directing instruction and defendant says she took it from the plaintiffs’ verdict directing instruction as set out in Jameson v. Fox, Mo.App., 269 S.W.2d 140. We observe that there are significant differences between the two instructions. Defendant’s instruction, after advising the jury that if they found certain facts, they could impute Mr. Norris’s negligence to his wife, instructed the jury if they found (1) that defendant’s car entered the intersection “ahead of and before the plaintiffs’ ” car and if they found (2) that defendant “exercised the highest degree of care in the operation of her automobile”, then defendant “had the right of way” over plaintiffs “even though the plaintiffs’ vehicle was at that time approaching the intersection from the right of defendant’s car”, and if they found that plaintiffs’ car collided with defendant’s car at the intersection “under the circumstances above mentioned” then neither plaintiff could recover and the jury was directed to return a verdict for the defendant “unless you find in favor of plaintiffs under instruction No. P-3” (plaintiffs’ humanitarian instruction).

It is to be noted that this instruction asserts that if the jury found the required facts, then the defendant had the right of way, but does not require the jury to find that plaintiff failed to yield the right of way, or that such failure was negligent or that such negligence caused, or contributed to cause, the injuries complained of. It simply directs a verdict for defendant if there was a collision and the jury found that defendant entered the intersection ahead of plaintiffs and exercised the highest degree of care in the operation of her automobile.

Even if defendant reached the intersection first and therefore could claim the right of way, there still remains the jury question of whether or not the plaintiff was negligent in failing to yield the right of way to defendant. See McCombs v. Ellsberry, 337 Mo. 491, 85 S.W.2d 135; Tener v. Hill, Mo.App., 394 S.W.2d 425 and Pappas Pie & Baking Co. v. Stroh Bros. Delivery Co., Mo.App., 67 S.W.2d 793.

Defendant contends that this requirement is satisfied by requiring the jury to find that defendant “exercised the highest degree of care in the operation of her automobile”. We can not agree. This finding pertains only to the care exercised by defendant, it does not require any finding by the jury as to the exercise of care, or the lack thereof, by plaintiff, and the required finding is not sufficiently broad to carry with it a finding of lack of care by plaintiff. The instruction in Jameson was given on behalf of plaintiffs. Here the instruction was offered by defendant and she claims it was designed to perform the functions of a contributory negligence instruction. The requirements are not precisely the same in both instances. As has been pointed out in our consideration of plaintiffs’ instructions, a driver with the right of way must use the highest degree of care in exercising that right of way and can not proceed if to do so would likely result in a collision. Such duty includes that of lookout, i. e., to look and to see. If such lookout would reveal the likelihood of collision then the driver must forego or yield his right of way and avoid the collision. Defendant’s instruction did not require this because, as is pointed out in Shields v. Keller, 348 Mo. 326, 153 S.W.2d 60, “the term ‘operation’ would hardly be understood to include ‘lookout’.” In this respect, defendant’s instruction is to be contrasted with the broader requirement of the approved instruction set out in Jameson where the jury was required to “find that in entering and proceeding across said intersection the plaintiff, Raymond Silkey, exercised such care as a very careful and prudent person would ordinarily exercise under the same or similar circumstances” (emphasis supplied) .

In Dawley v. Hoy, Mo., 341 S.W.2d 111, it was held that a contributory negligence instruction which did not require the jury to find a causal connection between plaintiff’s negligence and the resulting injuries was erroneous. This is especially applicable to the instruction before us. A finding of the same causal connection is required of a verdict directing instruction. The instruction approved in Jameson required a finding of such causal connection but there is no such requirement in defendant’s instruction.

This instruction D-B makes no mention of the possibility of the two vehicles arriving at the intersection at approximately the same time. It bases right of way solely on the finding that the defendant’s automobile “entered the intersection ahead of or before the plaintiff’s Chrysler automobile”. Thus, if defendant’s car entered the intersection only a split second before the plaintiff’s car, the instruction says the defendant has the right of way. Defendant testified that she first saw plaintiff’s car when she was 3 feet from the intersection and plaintiff’s car was one car length from the intersection. Although we do not know from the evidence the exact length of plaintiff’s car, and although there were varying estimates of speed by both parties, it is apparent that if defendant’s testimony were -true, then much less than one second’s time would have elapsed between the entry of the two cars into the intersection. From this evidence the jury could well have found that the two cars did, in fact, enter the intersection at approximately the same time. If they so found, plaintiffs’ instructions P-1 and P-2 would direct verdicts for the plaintiffs, and if the jury further believed that defendant’s car entered the intersection first, but only a split second before plaintiffs’ car then this instruction would direct a verdict for defendant. Such conflict between instructions is not permissible and this instruction is also in direct contravention of the provisions of the governing ordinance. In reaching this conclusion we are mindful of the holding in Jameson that the given instruction did not conflict with another instruction given by the court, which apparently concerned the situation where both vehicles entered the intersection at approximately the same time. The other instruction is not set out, and therefore the flat statement by the court that there was no conflict does not help us. In any event, we have an impermissible conflict.

For all of the reasons just discussed, and remembering that “trial courts may not be convicted of error in refusing to give an instruction which is not substantially correct in both form and substance even though giving the instruction would not be reversible error” (Orloff v. Fondaw, Mo.App., 315 S.W.2d 430), we have no hesitancy in holding that the trial court did not err in refusing to give defendant’s requested instruction D-B.

Defendant further contends that the trial court erred in admitting evidence of the amount of plaintiff’s hospital bill “because there was no evidence that such services were necessary for treatment of injuries sustained in the accident”. We are first met by plaintiff’s contention that this point should not be considered because of deficiencies in defendant’s statement of facts as such statement related to this point. While the statement is properly subject to at least some of the criticisms leveled at it by plaintiffs, we will consider this point on its merits.

Defendant originally objected to the hospital bill on the ground that there was no showing (1) that the services were necessary, or (2) that the amount of the bill was reasonable or (3) that the document in evidence was rendered as a bill as contrasted to a statement of gratuitious service. Defendant now admits there was evidence of reasonableness. She argues in her brief that the hospital bill was not rendered as a bill and that plaintiff had not paid, and was not obligated to pay, such bill. This is not within the point set forth in defendant’s brief and we will not consider this matter. The point as above quoted goes only to the necessity for the treatment rendered to plaintiff at the hospital.

In support of her argument that the hospital services and treatment were not necessary, defendant cites Markovich v. Kansas City Public Service Co., Mo., 266 S.W.2d 641. In that case the actual issue involved the reasonableness of the charge and not the necessity for the service. However, the court did mention both reasonableness and necessity in the same sentence and pointed out that the nature and extent of plaintiff’s injuries was evidence of the reasonableness of the cost of medical services. This same reasoning would no doubt apply to the necessity for the services. See also Siemes v. Englehart, Mo.App., 346 S.W.2d 560, where the court held that a finding that the medical services there in question were necessary would be justified from the fact that the doctor examined and treated plaintiff for complaints resulting from the accident; and Myers v. Karchmer, Mo., 313 S.W.2d 697, where the court pointed out that evidence of plaintiff’s physical condition was sufficient to form a basis' for a jury determination of the necessity of medical treatment in the future. In the early case of Fleming v. Kansas City Suburban Belt Ry. Co., 89 Mo.App. 129, the court held that medical services which were rendered in an attempt to cure the plaintiff’s ills resulting from the accident were reasonably necessary.

In the case at bar, plaintiff suffered a fractured pelvis and perhaps some aggravation of an arthritic condition. He was first hospitalized in Moberly, Missouri, and was then sent to the Wabash Employee’s Hospital at Decatur, Illinois. From his own testimony and from the medical evidence adduced it appears that he received protracted treatment for this fractured pelvis; that he was in this hospital for 52 days; that his recovery was long and painful and that he experienced great difficulty in regaining his ability to walk. Under these circumstances it is apparent that medical and hospital services and treatment were reasonably necessary to alleviate the condition caused by the vehicle collision in question. Plaintiff’s evidence does not cast doubt on the necessity for these services. Defendant contends that plaintiff was examined for “some old and unrelated condition”. The evidence shows that the X-ray ■examination which would be reasonably necessary for one in plaintiff’s condition, incidentally revealed the old fracture of a vertebra in the region of the neck. Defendant contends that plaintiff received two drugs for “blood pressure and allergies”, which were not connected with the accident. The doctor’s testimony was that one drug was useful to rid the body of excess water and secondarily to lower the blood pressure. The doctor also testified that the other drug was used for allergies and as a sedative. It was in evidence that plaintiff had a tendency toward high blood pressure. Even if the secondary effect of the first drug (to lower blood pressure) were the sole reason why this drug was administered, it would not be used for treatment unrelated to the conditions caused by the accident. It is apparent that it would be necessary to control a patient’s blood pressure within reasonable limits while he is hospitalized as a result of an accident. Likewise, it does not take a medical expert to realize that it is necessary to control body fluids of a patient who is confined to bed for a long period of time. As to the second drug, the use of sedatives is undoubtedly a proper treatment for one in plaintiff’s condition, and the mere fact that the sedative given might also be useful in connection with allergies does not change this situation. It is significant that although defendant, both in oral argument and in her brief, emphasizes the use of these two drugs, she did not mention them in her cross-examination of the doctor, although she did go into various other details of the hospital record in such cross-examination. We, therefore, conclude that plaintiff’s evidence amply showed the reasonable necessity for the medical and hospital treatment and services rendered to plaintiff at the Decatur Hospital and that defendant’s complaints in point five of her brief are without substance.

In point six defendant complains of the trial court’s refusal to give defendant’s instruction D-A, which would have withdrawn from the jury’s consideration the evidence of the amount of this hospital bill. What we have just said disposes of this contention adversely to the defendant.

Finding no error in the trial of this case, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    Howard HATFIELD, Jr., and Joseph L. Flynn, Plaintiffs-Respondents, v. Arthur J. MEERS, Mayor of the City of St. Joseph, Mo., Cleo Crouch, Individually and as Chairman of the Housing Authority of St. Joseph, Mrs. Marie Morehead, Mrs. Kelsey Beshears, David Turner and Warren Welsh, Individually and as Members of the Housing Authority of St. Joseph, Housing Authority of St. Joseph, City of St. Joseph, a Municipal Corporation, Its Officers, Agents and Employees, Defendants-Appellants.
    No. 24326.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.

      Richard W. Mason, Jr., City Atty., St. Joseph, for appellants.
    Whitney W. Potter, Dale, Potter & Flynn, St. Joseph, for respondents.
   SPERRY, Commissioner.

This action in equity was instituted by plaintiffs, who are taxpayers, registered voters, and property owners of the City of St. Joseph, Missouri. They seek to temporarily and permanently enjoin defendants, the City of St. Joseph, a municipal corporation, its Mayor and its officers, agents and employees, and the chairman and members of the Housing Authority of St. Joseph, from taking any action under the provisions of St. Joseph city ordinance No. 17788 which, they alleged, is void. From a judgment holding the ordinance to be null and void, and permanently enjoining defendants from taking any official action pursuant thereto, defendants prosecute this appeal.

The record in this case is quite voluminous, two hundred ninety three pages in transcript, and dozens of documentary exhibits, many of them consisting of several pages. We will endeavor to state the facts in evidence and upon which we will rest our opinion as succinctly as possible under the circumstances.

The ordinance was filed February 17th, 1965. It was first introduced and considered at a meeting of the council, February 23rd. As filed and introduced it did not carry an emergency clause, but after its introduction, it was orally moved that it be passed as an emergency measure, which was done on that date. The wording of the emergency clause was not actually typed into the ordinance until after the meeting adjourned. The ordinance as it appears in the record, is as follows:

“SPECIAL ORDINANCE NO. 17788”
“AN ORDINANCE AUTHORIZING EXECUTION OF A COOPERATION AGREEMENT BETWEEN THE HOUSING AUTHORITY OF ST. JOSEPH, MO., ACTING BY AND THROUGH ITS CHAIRMAN, AND THE CITY OF ST. JOSEPH, MO., A MUNICIPAL CORPORATION, ACTING BY AND THROUGH ITS MAYOR, FOR THE PURPOSE OF COOPERATING IN THOSE MATTERS FOR THE PURPOSE AND ACCORDING TO THE TERMS AND PROVISIONS ALL AS ARE SET FORTH IN SAID AGREEMENT WHICH IS ATTACHED HERETO AND MADE A PART HEREOF AS IF FULLY SET OUT HEREIN, AND DECLARING THIS ORDINANCE AN EMERGENCY MEASURE. (The above emphasized words were attached after the ordinance left the council chamber).
“WHEREAS, THE COMMON COUNCIL OF THE CITY OF ST. JOSEPH, MISSOURI, AUTHORIZED THE CREATION OF A HOUSING AUTHORITY IN THE CITY OF ST. JOSEPH, MISSOURI, BY THE ADOPTION ON THE 4th DAY OF AUGUST, 1941, OF A RESOLUTION DECLARING THE NEED FOR A HOUSING AUTHORITY TO FUNCTION IN THE CITY OF ST. JOSEPH, MISSOURI:
AND
“WHEREAS, THE MAYOR OF THE CITY OF ST. JOSEPH HAS BY VIRTUE OF HIS OFFICE CAUSED TO BE NAMED AND APPOINTED FIVE DULY QUALIFIED COMMISSIONERS OF THE HOUSING AUTHORITY OF THE CITY OF ST. JOSEPH IN ACCORDANCE WITH THE ‘HOUSING AUTHORITIES LAW’,
AND:
“WHEREAS, THE HOUSING AUTHORITY OF THE CITY OF ST. JOSEPH IS A MUNICIPAL CORPORATION AND HAS THE POWER TO ENTER INTO A COOPERATION AGREEMENT WITH THE CITY OF ST. JOSEPH, MISSOURI, BY VIRTUE OF THE POWERS GRANTED IT IN SECTION 99.090, MISSOURI REVISED STATUTES OF 1959, AS AMENDED LAWS OF 1963, AND;
“WHEREAS, THE COUNCIL OF THE CITY OF ST. JOSEPH, MISSOURI, HAS THE POWER TO ENTER INTO A COOPERATION AGREEMENT WITH THE HOUSING AUTHORITY BY VIRTUE OF THE POWERS OF THE COUNCIL AS SET OUT IN SECTION 2.13 OF THE CHARTER OF THE CITY OF ST. JOSEPH; THEREFORE;
“BE IT ORDAINED BY THE COUNCIL OF THE CITY OF ST. JOSEPH, AS FOLLOWS:
“SECTION 1. That the Mayor of the City of St. Joseph, Missouri, be and is hereby authorized to execute and enter into a cooperation agreement between the City of St. Joseph, Missouri, a municipal corporation, and the Housing Authority of the City of St. Joseph, Missouri, for the purpose of cooperating in those matters and for those purposes and according to the terms and provisions all as are set forth in said agreement which is attached hereto and made a part hereof as if fully set out herein.
“SECTION 2. (1) That there exist in the city insanitary or unsafe dwelling accommodations and that persons of low income are forced to reside in such insanitary or unsafe accommodations ; that within the city there is a shortage of safe or sanitary dwelling accommodations available at rents which persons of low income can afford and that such persons are forced to occupy overcrowded and congested dwelling accommodations; that the aforesaid conditions cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the city and impair economic values; that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services and facilities; (2) that these areas in the city cannot be cleared, nor can the shortage of safe and sanitary dwellings for persons of low income be relieved, through the operation of private enterprise, and that the construction of housing projects for persons of low income (as here defined) would therefore not be competitive with private enterprise; (3) that the clearance, re-planning and reconstruction of the areas in which insanitary or unsafe housing conditions exist and the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent and private property acquired and are governmental functions of city concern; (4) that it is in the public interest that work on projects for such purposes be commenced as soon as possible in order to relieve unemployment which now constitutes an emergency ; and the necessity in the public interest for the provisions herein enacted, is hereby declared as a matter of legislative determination and therefore, this ordinance is hereby declared an emergency measure, pursuant to Section 2.10, paragraph (1) of the Charter of the City of St. Joseph and shall be in full force and effect immediately upon passage by the Council and approval of the Mayor. * * *

(Section 2 was typed and added to the ordinance after the council adjourned).

Article II, Section 2.10, Charter of the City of St. Joseph provides, in part, as follows:

“LEGISLATIVE PROCEEDINGS”
“ * * * All bills shall be read by title two times before final passage, not more than one of which shall be at the same legislative session; and at least one week shall elapse between introduction and final passage, except in the case of an emergency bill”.
“An ordinance may be passed as an emergency measure on the day of the introduction of the bill if it contains the statement that an emergency exists and specifies distinctly the facts and reasons constituting the emergency. No ordinance granting, enlarging, or affecting any franchise shall be passed as an emergency measure. The emergency procedure shall be restricted to the following:
(1) Bills concerning the immediate preservation of public peace, property, health, safety or morals. * * * ”. (Emphasis ours.)

Article XV of the Charter provides, in part, to the effect that electors of St. Joseph shall have power to approve or reject at the polls all ordinances passed by the council under the provisions of Article II, Section 2.10 of the charter, excepting emergency ordinances enacted under that authority.

Pursuant to the terms of the ordinance the Mayor of St. Joseph, on February 23rd, 1965, entered into a “Cooperation Agreement” with the Housing Authority of St. Joseph. That agreement appears in the transcript. It provides, in part, as follows:

<< ⅜ ⅜ ⅜
“3 (a) Under the constitution and statutes of the State of Missouri, all projects are exempt from all real and personal property taxes and special assessments levied or imposed by any Taxing Body. With respect to any project, so long as either (i) such project is owned by a public body or governmental agency and is used for low-rent housing purposes, or (ii) any contract between the Local Authority and PHA for loans or annual contributions, or both, in connection with such project remains in ferce and effect, or (iii) any bonds issued in connection with such project or any monies due to the PHA in connection with such project remain unpaid, whichever period is the longest, the Municipality agrees that it will not levy or impose any real or personal property taxes or special assessments upon such project or upon the Local Authority with respect thereto. During such period, the Local Authority shall make annual payments (herein called “Payments in Lieu of Taxes”) in lieu of such taxes and special assessments and in payment for the public services and facilities furnished from time to time without other cost or charge for or with respect to such project.
“(b) Each such annual Payment in Lieu of Taxes shall be made after the end of the fiscal year established for such Project, and shall be in an amount equal to either (i) ten percent (10)% of the aggregate Shelter Rent charged by the Local Authority in respect to such Project during such fiscal year, or (ii) the amount permitted to be paid by applicable State law in effect on the date such payment is made, whichever amount is the lower. For the purpose of computing the Federal Annual Contribution and Payment in Lieu of Taxes, all projects which are covered by the same contract with the PHA for annual contributions and which have cooperation agreements subject to limitation as expressed in clause (ii) above, with the identical Taxing Bodies, shall be treated collectively as a single proj ect.
“(c) The Local Authority shall distribute the Payments in Lieu of Taxes among the Taxing bodies in the proportion which the real property taxes which would have been paid to each Taxing Body for such year if the Project were not exempt from taxation bears to the total real property taxes which would have been paid to all of the Taxing Bodies for such year if the Project were not exempt from taxation; Provided, however, That no payment for any year shall be made to any Taxing Body in excess of the amount of the real property taxes which would have been paid to such Taxing Body for such year if the Project were not exempt from taxation.
“(d) Upon failure of the Local Authority to make any Payment in Lieu of Taxes, no lien against any Project or assets of the Local Authority shall attach, nor shall any interest or penalties accrue or attach on account thereof. * * * ”. (Emphasis ours.)

Defendants question the qualification of plaintiffs, as taxpayers and citizens, to maintain this action. It is readily apparent, from a reading of the ordinance and the “Cooperation Agreement” entered into by the Mayor, as pleaded, that if the ordinance is valid the city agrees that streets will be declared vacated, new streets and sewers installed, taxes abdicated, liens on property waived, and other concessions made as required by another municipal corporation, not after consideration and action by the council. Thereby, these plaintiffs will be denied the right to appear and be heard on such matters. The cost of some such installations will be paid out of the city revenues to which plaintiffs and other taxpayers will have contributed. As a result of such additional expenditures, in all probability, additional taxes will necessarily be levied against their property. In order to protect their property rights in this respect they would be required to institute and maintain a multiplicity of legal actions to prevent their property from being subjected to additional taxes based on an illegal ordinance. This is sufficient to vest the court with equitable jurisdiction and to enjoin enforcement of the ordinance on behalf of plaintiffs and all others similarly situated. Brotherhood of Stationary Engineers et al. v. City of St. Louis, Mo.App., 212 S.W.2d 454, 458; McVey v. Hawkins, 364 Mo. 44, 258 S.W.2d 927 et seq., Paragraph 1. In this case, as in the last cited case, public funds (of the City of St. Joseph) would be unlawfully spent.

This brings us to a consideration of the legality of the emergency clause.

It has been held that the affixing of an emergency clause to a statute or ordinance does not, of itself, make it an emergency measure within the meaning of the law. Edmonds v. City of St. Louis, 348 Mo. 1063, 156 S.W.2d 619, 623; State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327, 334 (en banc). In State ex rel. Pollock v. Becker, 289 Mo. 660, 233 S.W. 641, 646 (en banc), Judge Graves said:

“It is absolutely against all reason to rule that the Legislature can, by chicanery, through a declaration against the very face of the bill, cut the people off from the constitutional right to refer all measures, * * *.”

Judge J. T. Blair, in a separate concurring opinion, declared that a legislative act shall not be exempt from the referendum merely because it is declared by the legislature to be “necessary for the immediate preservation of the public peace, health, or safety”, (emphasis ours), but it depends upon the fact that the act itself is so necessary.

The word “emergency” has been defined as follows: “an unforseen combination of circumstances which calls for immediate action”, (emphasis ours), Vol. 1. Webster’s New International Dictionary, Second Edition, page 837. In Mallon v. Board of Water Commissioners, 144 Mo.App. 104, 128 S.W. 764, 765, Judge Ellison of this court, in discussing the purchase of certain merchandise by a public body, said :

“And the manner of these purchases shows they could not have been an emergency. That word signifies some sudden or unexpected necessity requiring immediate, or, at least, quick action, whereas the meter supplies were obtained without the presence of such a situation. They were known to be in constant demand, and were needed, with approximately correct knowledge in advance in what quantity.” (Emphasis ours.)

The Council of the City of St. Joseph, on August 4th, 1941, by its resolution (creating the Housing Authority) solemnly adopted, and declared:

<( * * *
2. That insanitary and unsafe inhabited dwelling accommodations exist in said City of St. Joseph, Missouri.
3. That there is a shortage of safe and sanitary dwelling accommodations in said City available to persons of low income rentals they can afford.
4. There is need for a Housing Authority to function in said City of St. Joseph, Missouri; * * *

Pursuant to that resolution the then Mayor, on August 11th, appointed Commissioners of a Housing Authority. They qualified for their respective positions but we are not cited to any record of activity until, on December 11th, 1964, Mayor Meers appointed the present board, which organized December 16th. No further action of note occurred until the ordinance here involved (except for the emergency features) was filed, on February 17th, 1965. On February 23rd, the ordinance was introduced and enacted as an emergency measure.

We are not concerned with the wisdom of the council in determining that low rental housing was desirable, or necessary in St. Joseph. We are not here concerned with the wisdom of Congress, or of the Legislature, in setting up the machinery that was set up by law so that municipalities could procure Federal aid in obtaining sanitary housing for low income people. We are, however, concerned with the question of whether the shortage of sanitary housing in St. Joseph, which had existed, according to the records of the council, since 1941, should suddenly create an emergency, twenty-four years later, so as to require enactment of an emergency ordinance to correct the situation, whereby the citizens of St. Joseph would be denied the right of referendum, which is guaranteed to them by the same Charter which defines the powers and duties of the municipal officers, including the Mayor and council.

The lack of immediacy and urgency to establish an emergency is shown by the undisputed documentary evidence in this case. There was no oral testimony tending to contradict it. We hold that there existed no emergency, within the meaning of the Charter, so as to justify the enactment of an emergency ordinance.

The final question is whether the trial court, after ruling Special Ordinance No. 17,788 was not an emergency measure, erroneously declared it to be null and void because the council did not comply with the provision of Sec. 2.10, Art. II, of the Charter of the City of St. Joseph governing passage of ordinances other than emergency measures: “All bills shall be read by title two times before final passage, not more than one of which readings shall be at the same legislative session; and at least one week shall elapse between the introduction and final passage, except in the case of an emergency bill.” Of course, there was no compliance with this charter provision in this case. The defendants argue that the ordinance was enacted as an emergency measure and there was ho need for compliance with the charter provisions governing passage of nonemergency ordinances, even though the ordinance was found to be a nonemergency measure by the trial court and that finding may be affirmed by this court.

To support their theory they cite rulings from our courts and two from courts of other jurisdictions. The rulings of our courts all dealt wih emergency clauses declaring statutes or ordinances to be effective immediately upon passage so as to avoid the time lapse required before non-emergency measures could become effective. State ex rel. City of Charleston v. Holman, Mo., 355 S.W.2d 946; State ex rel. Pollock v. Becker, 289 Mo. 660, 233 S.W. 641; State ex rel Schmill v. Carr, 239 Mo.App. 939, 203 S.W.2d 670. Questioned only was the validity of emergency clauses. In each instance the courts declared the emergency clause invalid and ruled that the statute or ordinance was not immediately effective but that its effective date was postponed until after the lapse of time required before nonemergency measures could become effective. Significantly no question concerning the effect of failure to comply with conditions precedent to the enactment of valid nonemergency statutes or ordinances was presented by the litigants or ruled by the courts and we assume that those conditions precedent were met. What we have said of these decisions is equally true of State ex rel. Ryers v. Gibson, 183 Or. 120, 191 P.2d 392, relied on by defendants. In Sanborn v. City of Boulder, 74 Colo. 358, 221 P. 1077, on which defendants also rely, a City Council enacted an ordinance with an invalid emergency clause. The court ruled on appeal that the invalidity of the emergency clause did not make the ordinance itself void but simply postponed the time when it should take effect. But before doing so, it carefully determined that all charter requirements necessary to the enactment of the ordinance as a non-emergency measure had been met. This decision militates against defendants’ theory.

Numerous decisions from the various jurisdictions exist from which general language can be lifted which says that the invalidity of an emergency clause does not void a statute or ordinance but merely postpones its effective date as a nonemergency measure. Typical are Michelson v. City of Sacramento, 173 Cal. 108, 159 P. 431; Kadderly v. Portland, 44 Or. 118, 74 P. 710, 75 P. 222; Bickel v. Warner-Quinlan Asphalt Co., 70 Okl. 138, 174 P. 537; State ex rel. Ryers v. Gibson, 183 Or. 120, 191 P.2d 392; Barton v. Recorder’s Court of Vale, 60 Or. 273, 119 P. 349; Johnson v. City of Muskogee, 194 Okl. 513, 153 P.2d 118; Whitson v. City of Kingfisher, 176 Okl. 145, 54 P.2d 616; Ex parte Hoffman, 155 Cal. 114, 99 P. 517, 132 Am.St.Rep. 75; McCall v. State ex rel. Daniels, 156 Fla. 437, 23 So.2d 492. Of course, all of these decisions involved the validity of an emergency clause. What has to be remembered always in analyzing them, however, is that they did not involve the question whether a statute or ordinance enacted as an emergency measure with an invalid emergency clause was a valid statute or ordinance, notwithstanding there had been no compliance with requirements essential to validate the measure as a non-emergency statute or ordinance. The logical assumption is that those requirements had been met, else in some of them, at least, we surely would have found the controversy with which we are dealing. Some text books make the same general statement as these decisions, but their citations, except for one we will discuss later, are to decisions of this character only. See 62 C.J.S. Municipal Corporations § 443, p. 857, for one example. Even in Sanborn the court used this same general language: “The decisions in this country, so far as we have examined them, are unanimous that the effect of an invalid emergency clause does not make a statute or ordinance itself void, but simply postpones the time when it shall take effect.” This language lifted out of context could be argued in support of defendants’ theory with as much force as the decisions on which they rely and which we have discussed. But we repeat, the court carefully scrutinized the record in Sanborn and was satisfied that the ordinance could stand as a nonemergency measure because all the requirements for its validation as such a measure had been complied with by the Council before its passage.

Our research has disclosed that decisions of aid in dealing with the question before us are extremely rare and we have found only four, including Sanborn, that we deem to be of any value. One is Inland Development Co. v. Oklahoma City, D.C.Okl., 9 F.Supp. 96, relied on by the defendants and cited in some text books. The City Charter authorized enactment of ordinances as emergency measures and set forth what the emergency clause was required to embrace. Three ordinances were passed on the date of their introduction as emergency measures. The emergency clauses were attacked as not declaring true emergencies in compliance with the Charter. On this premise, it was argued that the ordinances were void because they had not “laid over the requisite period of a week before adoption” as required for nonemergency measures. A fair statement is that the court summarily disposed of this important question in three sentences: “It is unnecessary, however, to determine whether the emergency sections of these ordinances are sufficient, although it would appear that at least as to ordinances numbered 3140 and 3831 there is a sufficient statement of the affecting causes to comply with the charter provision. An invalid emergency clause does not make the statute or ordinance itself void, but simply postpones the time when it shall take effect.” Disposing precisely of the assertion that the ordinances were not emergency measures and therefore void because they had not “laid over the requisite period of a week before adoption”, it said only: “This argument does not seem sound, and is not supported by the authorities.” To support its ruling the court cited 43 C.J., p. 542. With a single exception that work cites decisions which bear no relevance to the question the court was then ruling. The exception is Sanborn already discussed. The other decisions it cites are of the class we have cited and explained above. The court’s opinion cites only two decisions: State ex rel. Hunzicker v. Pulliam, 168 Okl. 632, 37 P.2d 417, 96 A.L.R. 1294 and Sanborn. The Hunzicker case did not rule or discuss the question the court was then deciding for that question was not presented. 37 P.2d l. c. 420. We have already analyzed the Sanborn case. It does not support the ruling made and by analogy it is actually authority to the contrary. We are not persuaded by the Inland Development Co. ruling. It assumed without authority or reasoning that the charter provision before it was only directory and not mandatory. It is grounded on legal authorities that do not support it and it is not sustained by any reason or logic apparent to us. So far as we have discovered it stands alone in ruling as it does.

The California Court of Appeals has dealt with this question twice. In Brown v. Boyd, 33 Cal.App.2d 416, 91 P.2d 926, an ordinance was adopted as an emergency measure authorizing three additional police captains. The City Charter provided that nonemergency ordinances should not be enacted until “after two readings and votes at separate meetings of the board (council), which meetings shall be at least ten days apart.” The ordinance was voted upon and adopted by the Council at the first reading. The court ruled that it was not one that could legally be adopted as an emergency measure under governing law and therefore it was void for failure to comply with the requirements essential to validate it as a nonemergency measure. 91 P.2d l. c. 930.

This question was discussed again in Klassen v. Burton, 110 Cal.App.2d 539, 243 P.2d 28, which dealt with an ordinance adopted as an emergency measure. The emergency clause was declared invalid. On the basis of the Brown case it was argued that the entire ordinance should be declared invalid. The court explained the ruling in Brown as we have summarized it. It examined decisions involving statutory and municipal enactments adopted with an invalid emergency clause. In each decision examined the courts had ruled that the statute or ordinance was valid as a nonemergency measure but that it would not be enforceable until the lapse of time fixed by law caused it to become effective. The court said: “These cases are all distinguishable from Brown v. Boyd, supra, 33 Cal.App.2d 416, 91 P.2d 926, in that in all of them the mechanics of adopting the measures in question were those applicable to a nonemergency measure, while in the Brown case they were not.” It determined that the ordinance before it, although enacted as an emergency one, had been “adopted and published in all respects as required by law” to validate it as a non-emergency measure. In those circumstances it ruled that the invalidity of the emergency clause did not render the ordinance itself void, but only postponed its effective date saying: “So, where a measure is adopted containing an emergency clause which is void, if the adoption of the measure was sufficient to comply with the law as to a nonemergency measure, and the legislative body indicates that it would have adopted the measure without the urgency clause, there is no good reason why the void clause may not be separated from the balance of the measure” and the measure allowed to go into effect in due course.

We believe that the view announced by the California courts in these decisions is the sensible and just one which ought to apply where a City Council enacts as an emergency measure what is in reality a nonemergency measure and in the course of its enactment bypasses some mandatory procedure essential to validate a measure which is not an emergency. For it is easy to imagine the pernicious abuses and consequences that could flow from a different rule.

Our question then is whether Sec. 2.10 of the Charter of St. Joseph requiring all bills to be read by title twice before final passage, with not more than one reading in the same legislative session and providing one week shall elapse between introduction and final passage, except in the case of an emergency bill, is mandatory. If so, Special Ordinance No. 17,788 is void. We deem it necessary to examine the effect of five decisions of our courts which might seem to rule the question here if not carefully analyzed. For example, Aurora Water Co. v. City of Aurora, 129 Mo. 540, 31 S.W. 946, ruled: “Nor does it invalidate that ordinance because, as it is claimed, it was not read three times before its final passage. Section 1597, Rev.St.1889, provides ‘No ordinance shall be passed except by bill, and no bill shall become an ordinance, unless on its final passage a majority of the members elect shall vote therefor, and the yeas and nays entered on the journal; and all bills shall be read three times before their final passage.’ It is to be observed that the above section does not declare a sentence of nullity against a bill which is not read three times before its final passage. Such declaration is altogether confined to the preceding clauses of the section, and does not apply to the last clause.” For the reason advanced by the court, its ruling was that the requirement for three readings of all bills was directory and not mandatory. City of Rockville v. Merchant, 60 Mo.App. 365, dealt with the same statute quoted and ruled on in Aurora and reached the same result. Hook v. Bowden, 144 Mo.App. 331, 128 S.W. 261, dealt with a statute in all legal respects identical with the statute ruled on in Aurora and City of Rockville and reached the same result. Sec. 5955, R.S.Mo.1899. State ex rel. Attorney General v. Mead, 71 Mo. 266 construed a constitutional provision. Barber Asphalt Paving Co. v. Hunt, 100 Mo. 22, 13 S.W. 98, 8 L.R.A. 110, construed a charter provision. The provisions construed in these two cases were identical in all relevant legal respects with those in Aurora, City of Rockville and Hook and the rulings made were the same and on the same reasoning.

We can easily understand the reasoning of the Supreme Court and the Courts of Appeals that the language of the clauses of the statutory, charter, and constitutional provisions preceding the requirement for reading ordinances and bills was mandatory for that language clearly constituted a firm mandate to enact no ordinance or bill without first complying with the requirements it prescribed. It was grammatically and structurally separate from the requirement for reading ordinances and bills and plainly inapplicable to that requirement. Once this conclusion was reached, and it was the reasoning of the courts, it certainly could be argued with logic that the requirement for reading bills was not mandatory but directory.

On the other hand, we do not believe that these decisions govern in this controversy. It must be borne in mind in considering them that not one of them states or implies that no statutory or charter provision requiring delay and successive readings of ordinances before passage can ever be mandatory. Nor do they state or imply that no such provision requiring delay and successive readings can ever be mandatory unless it expressly declares “a sentence of nullity” for failure to comply. Indeed, there is no ironclad rule that laws to be mandatory must expressly declare “a sentence of nullity” for failure to comply. Our Supreme Court has ruled that employment in a statute of the word “shall”, as does the provision of the charter under scrutiny, is mandatory where “public interests and rights are concerned.” State ex rel. Consolidated School Dist. No. 9 v. Lee, 303 Mo. 641, 262 S.W. 344. Certainly public interests and rights are concerned in this controversy.

A familiar and indisputable rule in the interpretation of statutory or charter provisions is that the interpreter must analyze all of its parts in context and not separately isolate them piece by piece. To do so could prevent each part from breathing strength or weakness or difference of meaning into the other parts and leave each part in its own separate desert, likely with a meaning never intended by the framers of the provision. We examine Sec. 2.10 of the charter in this light. There is absolutely no language in Sec. 2.10 preceding the requirement for two successive readings of the title of nonemergency bills at different legislative sessions with the lapse of a week between introduction and final passage which weakens its force and effect or qualifies it in any way. The total absence of any such preceding language distinguishes this requirement from the statutory, charter and constitutional provisions construed by the Supreme Court and the Courts of Appeals in the decisions we have just discussed. The final clause of this requirement, “except in the case of an emergency bill”, operates not alone to exempt such bills from its application. It serves also to strengthen the force of this requirement as to all other bills by being written into it as the sole exception to it. There is absolutely no language following this requirement which tends to weaken its force and effect. On the contrary, there is much that shows that those who wrote it did not intend it to be obeyed or disobeyed at will by the Council and there is nothing that suggests that it can be evaded by merely attaching a baseless emergency clause to a nonemergency measure.

Notice the provisions that follow the requirement for successive readings of the title of all nonemergency bills at different legislative sessions with a week elapsing between introduction and final passage: (1) Every bill introduced shall be filed with the City Clerk on or prior to the day of its first reading and shall remain on file in his office for public inspection until it is finally adopted or fails of passage; (2) Prior to the passage of any bill, other than an emergency bill, all persons interested therein shall be given an opportunity to be heard before the Council; (3) After the second reading of any bill and compliance with the other provisions of Sec. 2.10, the Council may finally pass the bill with or without amendment; (4) If the Council makes an amendment which constitutes a change in substance, the bill as amended shall be filed in the office of the City Clerk for one additional week and an opportunity afforded for a further public hearing after which final action may be taken thereon.

The requirement for delay and successive readings of all nonemergency bills by title, etc., and the provisions just noted which follow this requirement, obviously were designed to afford the members of the Council and the public an opportunity to acquaint themselves with the effect and terms of all such bills and to safeguard against error, injustice and hasty or ill-advised action by the Council. These provisions are the clearest recognition of the duty of the Council to act on nonemergency bills only after deliberation and of the right of all members of the public to know, to understand and to protest if they desire. Common knowledge is that the exercise of this right oftentimes prevents enactment of ordinances not in the public interest. To say that those who wrote into Sec. 2.10 these strong and unequivocal safeguards for the restraint of the Council and the protection of the public did so with the intent that the Council could obey or disobey them at will or evade them by means of a baseless emergency clause, is to adjudge that a fraud has been perpetrated on the public of St. Joseph. For we believe that any voter examining these provisions of the charter before voting at an election for its approval or disapproval would believe they were meant to be obeyed and that he would have every right to do so.

We have discovered no decision of our own appellate courts declaring or persuading that we must construe the requirement for successive readings of the title of all nonemergency bills on different days, with a week elapsing between their introduction and final passage, as merely directory and not mandatory. We are convinced that this requirement is mandatory and we so hold. In so ruling we are supported by the solid weight of authority on this subject in this country. “It may be laid down as a general rule, that all charter or statutory requirements as to the method in which an ordinance shall be introduced, and the manner in which it shall be considered, are, when reasonably calculated to induce deliberation, mandatory in their nature, and must be complied with. Among statutory requirements of this nature are provisions that all ordinances shall be read three times before their final passage, and that no ordinance shall pass at the same meeting at which it is introduced. These provisions are mandatory, and an ordinance which is passed without complying with them is void.” Dillon, Municipal Corporations, Fifth Ed., Sec. 576, p. 905. See texts to the same effect: McQuillin, Municipal Corporations, 3rd Ed., Vol. 4, Sec. 1346, p. 534; 62 C.J.S. Municipal Corporations § 418, p. 801; 37 Am.Jur., Municipal Corporations, Sec. 144, p. 756; Antieau Municipal Corporation Law, Vol. 1, Sec. 4.06, page 193; Yokley, Municipal Corporations, Vol. 1, Sec. 83, p. 212; and Town of Danville v. Shelton, et al., 76 Va. 325; Swindell v. State ex rel. Maxey, 143 Ind. 153, 42 N.E. 528, 35 L.R.A. 50; Horner v. Rowley, 51 Iowa 620, 2 N.W. 436; Newbold v. City of Stuttgart, 145 Ark. 544, 224 S.W. 993; Wilder v. American Produce Co., Tex.Civ.App., 147 S.W.2d 936; Cisco v. City of Ashland, 218 Ky. 52, 290 S.W. 1032; Brumley v. Town of Greeneville, 38 Tenn.App. 322, 274 S.W.2d 12; Hukle v. City of Huntington, 134 W.Va. 249, 58 S.E.2d 780; Thompson v. Wingard, 250 Ala. 390, 34 So.2d 606; In re Lancaster City Ordinance No. 55-1952, 383 Pa. 471, 119 A.2d 307; City of Hazard v. Collins, 304 Ky. 379, 200 S.W.2d 933; Paterson & Ramapo R. Co. v. Mayor, etc., City of Paterson, 74 N.J.L. 738, 68 A. 76; State, Ackerman, Pros. v. Town of Bergen, 33 N.J.L. 39; Bill Posting Sign Co. v. Atlantic City, 71 N.J.L. 72, 58 A. 342; Tennent v. City of Seattle, 83 Wash. 108, 145 P. 83; Costakis v. Village of Yorkville, 109 Ohio St. 184, 142 N.E. 30; Village of Vinton v. James, 108 Ohio St. 220, 140 N.E. 909.

Since the Council failed to comply with the mandatory requirement of Sec. 2.10 of the Charter for delay and successive readings in enacting Special Ordinance No. 17,-788, we rule that it is void.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C, is adopted as the opinion of the Court. All concur.


author: HOWARD, Judge.

text:
    Rufus NORMAN, Appellant, v. R. M. WILLIS, A. Phillip Randolph, Milton P. Webster (Deceased), Representing the Brotherhood of Sleeping Car Porters, a Labor Union, Respondents.
    No. 24334.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.
    Allan R. Browne, Ennis, Browne & Martin, Kansas City, for appellant.
    Donald W. Fisher, Toledo, Ohio, Ernest Hubbell, Kansas City, Mulholland, Hickey & Lyman, Toledo, Ohio, of counsel, for respondents.
   HOWARD, Judge.

This case comes to the writer on reassignment. It is a suit wherein plaintiff seeks compensatory and punitive damages for the wrongful refusal of the defendants, as officials of the Brotherhood of Sleeping Car Porters, to process his grievance under the provisions of a collective bargaining contract. The suit was commenced as a class action against the Union and R. M. Willis, local secretary of the Brotherhood of Sleeping Car Porters, Phillip Randolph, International President of that Union, and Milton P. Webster, First International Vice President. Plaintiff claimed that the defendants acted wilfully, wantonly, wrongfully and maliciously in refusing to continue to represent him and to process his grievance against his employer, the Pullman Company.

Defendants interposed a motion for summary judgment, which the trial court sustained, and entered judgment against plaintiff. The trial judge found that defendants processed plaintiff’s grievance in good faith and that there was no genuine issue as to any material fact. Plaintiff appeals from such judgment.

In a case submitted on a motion for summary judgment, the burden is upon the party filing the motion (here the defendants) to show by unassailable evidence that there is no issue of fact remaining in the case and that the moving party is entitled to judgment as a matter of law. See Nelson v. Browning, Mo., 391 S.W.2d 873, Cure v. City of Jefferson, Mo., 380 S.W.2d 305, Oakley v. Duerbeck Co., Mo., 366 S.W.2d 430, and Cooper v. Finke, Mo., 376 S.W.2d 225. In this last cited case, it is said: “The appellate court as well as the trial court must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered”. l. c. 228. The court also said, l. c. 229: “As its name indicates, a summary judgment is an extreme and drastic remedy and great care should be exercised in utilizing the procedure”.

For our purposes the facts in this case may be quickly summarized. Plaintiff is a pullman car porter and president of the Kansas City local of the Brotherhood of Sleeping Car Porters. In August of 1959 plaintiff laid off work because of his health. He was suffering from arthritis of the spine and perhaps bursitis. Plaintiff’s personal physician put him in the hospital for X-rays and laboratory tests and then reported that he would be able to go back to work at the end of “his vacation” on September 16, 1959. Such report was given to the employer, the Pullman Car Company, but the company refused to permit plaintiff to come to work at that time. Shortly, thereafter, the company doctor examined plaintiff and reported that he was physically unable to return to work. Plaintiff then went to another doctor of his own choice, who recommended extensive treatment, and at first stated it would probably be six months before plaintiff could return to work, although he might recover sufficiently to return in 90 days. However approximately 30 days thereafter and on November 16, 1959, this same doctor advised that plaintiff had recovered and could return to work. Also in November of 1959, plaintiff consulted Dr. Lichtor, a specialist in orthopedic surgery, who advised that plaintiff could return to work. All of the time after September 16, plaintiff was continuously trying to return to work; he was writing letters to the local supervisor of the employer, and was submitting various medical reports to such supervisor.

Plaintiff was not successful in his attempts to return to work and late in November, 1959, finally entrusted his grievance entirely to the Brotherhood of Pullman Car Porters, whom he asked to represent him in the grievance procedure with representatives of the company.

Mr. Milton P. Webster, First International Vice President of the Union, and one of the defendants herein, was the individual who handled' this grievance in his position with the union. On an appeal provided for under the grievance procedure, the matter was submitted to a company official designated as an “Appeals Officer”. This officer decided that plaintiff could return to work but denied his claim for back pay during the period from September 16, 1959, when he was not permitted to work by the employer. Plaintiff returned to work February 4, 1960. The next step in the grievance procedure, which now applied only to the claim for back pay, would be an appeal to the Railway Adjustment Board under the Railway Labor Act. The Union did not file such an appeal.

Plaintiff claims that it was necessary to file such an appeal within 60 days after the decision of the company officer; that Webster did not advise him that such an appeal would not be filed until after this 60 day period had expired; plaintiff claims that, as a consequence of this failure to notify, he was prevented from filing his own appeal, and therefore lost his claim to back pay. The Union contends that there is no time limit on filing the appeal with the Railway Adjustment Board and that plaintiff could file his own appeal at any time (apparently even today). In support of their motion for summary judgment, the defendants filed a long affidavit by Mr. Webster, together with many exhibits consisting mostly of copies of correspondence and medical reports. The substance of this affidavit, as it bears on the issues here in question, is that Mr. Webster evaluated plaintiff’s claim on the basis of the evidence before him and concluded from such evaluation that an appeal to the Railway Adjustment Board was not likely to be successful and therefore should not be filed. No appeal was in fact filed. The plaintiff filed a counter-affidavit in which he alleged that the decision not to file the appeal was not reached in good faith, but on the contrary, he alleged that such determination was made in bad faith and was the result of personal spite, ill will and hard feelings held against him by Webster and the other defendants. This affidavit of plaintiff was not denied or controverted.

Officers of a union have a right, and in fact, a duty, to sift and evaluate grievances of the union members; they must exercise discretion in determining which grievances to proceed with and which to refuse. It is obvious that the union officials can not process every grievance claimed by a member. See Sipes v. Vaca, Mo., 397 S.W.2d 658, Ford Motor Company v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048, Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370, and Ostrofsky v. United Steelworkers of America, D.C., 171 F.Supp. 782. These cases also point out that the discretion exercised by the union officials must be impartial and based on the facts and circumstances of each individual case and that a refusal to proceed with a grievance, not based on the facts, but based upon personal spite, ill will, fraud or other wrongful motives, is not justifiable but constitutes an abuse of discretion for which the union and its officials may be liable.

Even a determination that there was sufficient evidence before Webster to support and justify a good faith decision not to appeal, would not be enough to sustain the judgment below. The issue to be determined is the good faith or bad faith of the defendants in refusing to further process plaintiff’s grievance. If the refusal to appeal was based on an impartial evaluation of the evidence in the case, then plaintiff can not recover. However, if the refusal was based on personal spite and ill will and was not reached as the result of a good faith evaluation of the evidence, then plaintiff may recover. This question requires the trier of fact to determine the factors which actuated the decision not to appeal. Since it appears that this decision was primarily Webster’s decision, the finder of fact must, of necessity, determine Webster’s state of mind; his motive. This determination must be made from a consideration of all the facts at Webster’s disposal when he made his decision, plu_ all the other surrounding circumstances, including the history of animosity and ill will alleged to have existed between Webster and the other defendants, on the one hand, and the plaintiff on the other. From the very nature of this issue, it is most peculiarly suited for submission to a jury upon a complete presentation of the evidence. An opportunity for cross-examination is most important. A determination of this fact issue may well rest upon the credibility of the witnesses as they appear on the stand. It seems that such an issue would seldom be ripe for a decision by summary judgment and we can not agree, in this case, where one opposing affidavit states that the decision not to appeal was the result of a good faith, impartial evaluation of the evidence, and where the other affidavit (not answered or denied) asserts that the decision was the result of personal spite and ill will, that no fact issue is present. To say the least, it does not appear that the defendants have shown by unassailable evidence that there is no fact issue here presented. We can not but believe that reasonable minds could well differ when the evidence is all in. We can say with certainty that reasonable minds could differ when considering only the affidavits before us.

We therefore conclude that an issue of fact was present and that the trial court erred in granting judgment on defendants’ motion for summary judgment. The judgment of the trial court is therefore reversed and the cause remanded for trial.

CROSS, P. J., concurs.

BLAIR, J., not participating.