author: NORTHCUTT, Justice.

text:
    Leroy DURHAM, Appellant, v. T. J. WARDLOW, Appellee.
    No. 7595.
    Court of Civil Appeals of Texas. Amarillo.
    March 21, 1966.
    Rehearing Denied April 18, 1966.
    Morehead, Sharp, Boyd & Tisdel, Plain-view, Robert Gibbins, Jr., Plainview, of counsel, for appellant.

      LaFont, Tudor, Tunnell, Formby & Reep, Plainview, Bill LaFont, Plainview, of counsel, for appellee.
   NORTHCUTT, Justice.

The appellee, T. J. Wardlow, sued the appellant, Leroy Durham, for property damages allegedly arising when appellant struck appellee’s parked vehicle. Appellee’s car was parked in a parking lane facing west on West Fifth Street in the City of Plainview. Appellant was driving his car on West Fifth Street and proceeding in a westerly direction when he ran into appel-lee’s car and caused the alleged damages. It is not denied that appellant ran into the appellee’s car and damaged it. The only real issue here involved is whether appellant should be excused from running into the car because of his physical condition at the time of the accident. In other words, was his condition such as to determine that his acts could not be considered as constituting negligence? Appellant pleaded the collision in question was an unavoidable accident and the only reason under this record to hold it was an unavoidable accident would be because of appellant’s condition at the time.

The case was submitted to a jury upon special issues. We are of the opinion under the undisputed record in this case that the only issue here involved is in connection with Special Issues Nos. 2, 2-a, 2-b, and 4. The jury found in answer to Issue 2 that appellant was attempting to drive his automobile at the time and on the occasion in question when, and in the exercise of ordinary care, he knew, and should have known that he was not physically able to drive his car. Then in answer to Issues 2-a and 2-b that such was negligence and a proximate cause of the collision. In answer to Special Issue No. 4 the jury found the collision was not the result of an unavoidable accident. Upon the verdict of the jury judgment was granted in favor of appellee for the sum of $400 and from that judgment appellant perfected this appeal.

Appellant presents this appeal upon twenty-eight points of error. We will first consider Points 7-15, both inclusive, which deal with Special Issues 2, 2-a, and 2-b. It being the contention that there was no evidence authorizing the submission of these issues nor to sustain the jury’s answer thereto and that the jury’s answers thereto were so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. In considering the contention of no evidence we must consider whether there is any evidence of probative value which with the inferences that may be properly drawn therefrom will reasonably support the verdict of the jury. The jury were the judges of the facts proved and also the inferences drawn therefrom, provided such inferences were not unreasonable. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Lockley v. Page, 142 Tex. 594, 180 S.W.2d 616.

Appellant did not appear in court nor in any manner testify in this case. There was evidence that appellant stated he had a radio-telephone in his car and had talked to another person that morning; that he had felt badly that day and he thought he should come in; that he knew that he should stop and call his wife and tell her to come and get him; that he knew that he was that sick but that he did not call her as he thought he might get home without having to put his wife to that trouble; he knew he would have to drive through Plainview in going home but thought he might make it as he realized then he should have taken precautions to do that. There was other evidence concerning this matter. We overrule appellant’s Points 7-15, both inclusive, as to there being no evidence.

In considering appellant’s Points 7-15, both inclusive, as to the answers of the jury to Issues Nos. 2, 2-a and 2-b being so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, we must consider and weigh all of the evidence in the case and to set aside the verdict and remand the cause for a new trial if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. We cannot say that the verdict as to these issues is so against the great weight and preponderance of the evidence as to be manifestly unjust and overrule appellant’s Points 7-15, both inclusive.

By appellant’s first six points of error it is contended the court erred in submitting the issue as to whether appellant failed to bring his car to a stop before it struck appellee’s car and if the same was negligence and a proximate cause of the damage. The amount of damages is undisputed. It is also undisputed that appellant did not stop his car before striking ap-pellee’s car. Naturally, that would be negligence and a proximate cause of the injury unless for some reason appellant be relieved of such negligence. We overrule all of appellant’s first six points of error.

Appellant’s points of error 16, 17 and 18 complain of the findings of the jury as to unavoidable accident. The sole reason relied upon by appellant that constituted an unavoidable accident was that appellant had a blackout or a heart attack prior to striking appellee’s car. We think the answer to Special Issue 2 and the record concerning that issue as above discussed is sufficient to say we find no error in the holding of the jury that the acts here involved did not constitute an unavoidable accident. We overrule appellant’s points of error 16, 17 and 18.

As to appellant’s contention of reversible error because of the closing argument made by appellee’s attorney where he stated that appellant wanted appellee’s damages paid as injecting insurance into the cause and appellant offering to settle the case, we cannot agree under this record such argument constituted reversible error. The undisputed record shows appellant ran into appellee’s car and damaged it. The amount of damages was undisputed. In our opinion the argument was improper, but was not reversible error under the circumstances. We cannot say that the errors complained of were reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case. Rule 434, Texas Rules of Civil Procedure; Walker v. Texas Employers’ Ins. Ass’n, 155 Tex. 617, 291 S.W.2d 298.

We have carefully considered all of appellant’s points of error and overrule all of them. Judgment of the trial court is affirmed.


source: Caselaw Access Project

author: HIGHTOWER, Chief Justice.

license: Public Domain

text:
    M. W. PLUMMER, Sr., Appellant, v. C. H. DURDEN, Individually, and as Executor of the Estate of A. U. Durden, Deceased, and Ollie Durden, Appellees.
    No. 6746.
    Court of Civil Appeals of Texas. Beaumont.
    March 17, 1966.

      M. W. Plummer, Sr., Houston, for appellant.
    Robert F. Atkins, Coldsprings, for ap-pellees.
   HIGHTOWER, Chief Justice.

Plaintiff, M. W. Plummer, Sr., brought suit in the county court of San Jacinto County June 20, 1961, against Ollie Durden, individually, and against C. H. Durden, individually and as independent executor of the estate of A. U. Durden, deceased. Ollie Durden was the surviving wife of said deceased. The suit was brought to recover the sum of $430.00 for legal services performed by plaintiff in the probating of said deceased’s last will and other services ancillary thereto. It was alleged that C. H. and Ollie Durden were the principal dev-isees and recipients of the estate of said deceased and therefore necessary parties. Prayer was that such debt be impressed as a lien upon the estate of said deceased, and for costs of court.

The substance of defendant’s answer was that as plaintiff did not pray for a judgment against Ollie Durden, she should not be a party to the suit; denial that the attorney’s fee was just and reasonable and incurred as a result of representing the estate and a general denial.

Prior to trial, the executor, C. H. Durden, filed within the record of the case an instrument by him denominated as “Motion for Judgment nil dicit”. By such instrument, he admitted that the debt for which plaintiff sued was fair, reasonable and just, and had been legally approved as a claim against the estate. He therein conceded that after an examination of plaintiff’s second amended petition, he found no valid reason to contest the relief sought therein. He further prayed that said motion for judgment be granted in favor of plaintiff and against the estate of the deceased. Thereafter, Ollie Durden introduced an instrument into the record by which the court and all parties were notified that she, as surviving wife of the deceased, had elected not to take under the will in question, etc., said instrument being in all respects valid as an election not to take under said will and as a rejection thereof.

Thereafter, on the 29th day of April, 1964, the court rendered and entered judgment to the effect that Ollie Durden had elected to reject the terms of the will and instead thereof take as surviving wife under the laws of descent and distribution of said deceased and decreed that plaintiff recover $430.00 against C. H. Durden and that said judgment be impressed as a lien upon any and all property of the estate of said A. U. Durden, deceased, received by the said C. H. Durden under said will. It was further ordered that plaintiff take nothing against Ollie Durden and that all costs be adjudged against the “Defendant, C. H. Durden, deceased”. Trial was to the court without a jury. The parties will be referred to here as in the trial court or by name.

The cause is before us on an agreed statement of the parties, the pertinent substance of which being: The plaintiff’s claim is reasonable and just. Ollie Durden testified she had never employed plaintiff. C. H. Durden said plaintiff had never rendered services for- him personally but only as representative of the estate of A. U. Durden and that he, C. H. Durden, had not paid court costs personally or from the estate and that there were no liquid assets available to the estate to set aside for said claim.

Plaintiff’s two points of error are in substance: The error of the court in restricting and diminishing plaintiff’s right to have his judgment satisfied by any and all of the assets of the estate in the hands of the executor, and, also, there were no pleadings of defendants to support such restriction.

The will of A. Ü. Durden was not introduced in evidence and, therefore, we have no knowledge of the contents of the same other than that C. H. and Ollie Dur-den were named as devisees therein. Under the circumstances, we think defendants’ general denial was sufficient to put in issue and place the burden of proof upon plaintiff to establish that Ollie Durden’s election to reject the will resulted in her receiving property which was subject to the debts of the deceased’s estate. It is apparent that the trial judge reached his decision that she received no such property as the result of her election. Among the conclusions of fact and law found by the court are the statements:

(1) “Since there is no proof that Ollie Durden took anything under the will of A. U. Durden or inherited anything from A. U. Durden, plaintiff, M. W. Plum-mer, Sr., cannot recover judgment against Ollie Durden.”
(2) “The will of A. U. Durden was not introduced into evidence so the court is not able to determine if Ollie Durden received any of the estate, if she took under the will at all.”
(5) “Plaintiff failed to connect Ollie Durden in any way with his claim for attorney’s fees * *
(6) “Under the ruling of City of Fort Worth v. Banner, Tex.Civ.App., 328 S.W.2d 239, and Rule 269, Probate Code, a judgment against Ollie Durden is not proper.”

Being of the opinion that the judgment of the trial court was correct, it is accordingly affirmed.


author: BARROW, Justice.

text:
    GUADALUPE-BLANCO RIVER AUTHORITY, Appellant, v. Alex FORSHAGE et al., Appellees.
    No. 14442.
    Court of Civil Appeals of Texas. San Antonio.
    March 16, 1966.
    Rehearing Denied April 13, 1966.

      Denver E. Perkins, Gonzalez, for appellant.
    Elbert R. Jandt, Seguin, for appellees.
   BARROW, Justice.

This is a non-jury trespass to try title suit and concerns a boundary question. Judgment was entered whereby appellant, Guadalupe-Bianco River Authority, hereinafter called GBRA, recovered title to and possession of 7.3 acres of land. The judgment describes this land by metes and bounds, in accordance with the description contained in the 1926 deed from appellees’ predecessor to Texas Power Corporation, the predecessor of GBRA, except for the correction of one call which is immaterial to this appeal.

Appellant asserts that the beginning point in the description set forth in the judgment is erroneous because it is not the common boundary line which was established by agreement and acquiescence of the parties and their predecessors in title, and cannot be located on the ground.

The agreed common source of title is Christian H. Forshage and wife, Alvina Forshage. In 1926, this couple conveyed 7.3 acres of land to Texas Power Corporation by warranty deed. Appellees, Alex Forshage, Edwin Forshage and Ina Schu-man, are the owners of the adjoining 63.9 acres of land which they acquired by inheritance from their brother, Sam For-shage, who had acquired all the interest which had belonged to his parents, Christian H. and Alvina Forshage. The 7.3 acres is located adjoining the west bank of the Guadalupe River, and was acquired by Texas Power Corporation to be used in connection with the formation of a lake in the Guadalupe River by the construction of Nolte Dam. The dam was completed in 1927, and at least part of the 7.3 acres has been continually inundated since that time. GBRA acquired title to the land in 1963, from Texas Power Corporation.

The beginning call in the 1926 deed is: “Beginning at a stake in the lower line of the said Christian Forshage, the same being the upper line of a tract owned by C. E. Tips, said stake being at the present waters edge of the Guadalupe River; Thence N. 75-35' E. 27 feet to a stake in the said dividing line between the said Christian Forshage and C. E. Tips;” and this call is followed by fifteen meandering calls which constitute the west boundary of the 7.3 acres. The judgment contains the same metes and bounds description, except that it substitutes “1926 (year)” for the word “present” in the beginning call, and reverses the call “N. 75-35' E. 27 feet to a stake” to read “S. 75 Deg. 35' W. 27 feet to a stake.” This call was obviously reversed in that the original call led to the center of the river.

The controversy in this case is over the beginning call of “the 1926 (year) waters edge of the Guadalupe River,” in that this point has been inundated since the lake was created by the construction of the dam in 1927. The uncertainty over the location of this beginning point caused the parties to this suit, or their predecessors, to enter into an agreement in 1939, whereby the common boundary line between the 7.3 acres and the 63.9 acres- was located. Prior to this agreement the bank along the edge of the lake was caving in and a dispute arose over settlement for the land so affected.

A settlement was agreed upon in writing between Texas Power Corporation, on the one hand, and Alvina Forshage and all the heirs of Christian H. Forshage, including appellees herein, on the other hand, which agreement was duly acknowledged by all parties and filed in the deed records of Guadalupe County. As a part of this agreement of November 8, 1939, the 63.9 acres was described by metes and bounds in accordance with a survey made by H. N. Tu-ley. This survey was made by starting at the NW corner of the 63.9 acre tract, which was a known point, and then proceeding generally south to the SW corner, which was on the dividing line of the For-shage and Tips properties. The survey then called for proceeding 75° E. along this line for 792' to a stake, which was the SW corner of the 7.3 acre tract. Thereafter the line proceeded by the same fifteen meandering calls as set forth in the 1926 deed. There was a specific recitation in the description set forth in the 1939 agreement that this was the common boundary line between the 7.3 acres conveyed to the Texas Power Corporation and the 63.9 acres described therein.

This agreement made specific reference to a survey and map prepared by Tuley, dated July 11, 1939, as the basis of the metes and bounds description, and it was agreed that this survey and map “which we have identified by signing our names thereto” was an accurate survey of said division line. There was received in evidence, from the records of appellant, both a rough drawing and a finished survey and map which was dated July 11, 1939, and both were identified as being the work of Tuley. However, neither was signed by any of ap-pellees or their predecessors, and in a finding of fact the trial court disregarded this map because it was not signed.

It is our opinion that the trial court erred in not finding the common boundary line as established by the description set forth in the 1939 agreement, which description is marked by monuments on the ground. It is true that an identified map as referred to in the 1939 agreement was not in evidence; however, the metes and bounds description is set forth in same. Further, this description was subsequently recognized by appellees and their predecessor, Sam Forshage.

Alvina Forshage, the widow of Christian H. Forshage, died intestate in 1941. Thereafter Sam Forshage acquired the interest of each of his four brothers and sister by deeds executed between June 23, 1942, and March 27, 1947. Each of these five deeds contains a metes and bounds description of the 63.9 acres, and the description is the same as that contained in the 1939 agreement. Each specifically locates the common boundary line between the 7.3 acres and the 63.9 acres in accordance with the Tuley survey contained in the 1939 agreement.

It is a settled rule that where there exists uncertainty, doubt or dispute as to the true division line between two adjoining tracts, the boundary line may be established by agreement between the respective owners. Gulf Oil Corp. v. Marathon Oil Co., 137 Tex. 59, 152 S.W.2d 711; Foster v. Duval County Ranch Co., 260 S.W.2d 103, wr. ref. n. r. e.; 12 Baylor Law Review 93, The agreement of 1939 established the common boundary line and this line was also fixed by acquiescence and recognition by the subsequent actions of appellees and their predecessors. Great Plains Oil and Gas Co. v. Foundation Oil Co., 137 Tex. 324, 153 S.W.2d 452; Anderson v. Atlantic Oil Producing Co., Tex.Civ.App., 83 S.W.2d 418, wr. ref.; 9 Tex.Jur.2d, Boundaries, §§ 52, 53. There was no evidence to rebut the presumption that this recognized line was the correct boundary line. Cf. Duval County Ranch Co. v. Foster, Tex.Civ.App., 318 S.W.2d 25, wr. ref. n.r.e.

The judgment is therefore reversed and this cause remanded for entry of judgment setting forth the description of the 7.3 acres owned by GBRA in accordance with the common boundary line contained in the 1939 agreement.


text:
    Jim Billy STINSON, Appellant, v. Barbara Jo MOORE et vir, Appellees.
    No. 6840.
    Court of Civil Appeals of Texas. Beaumont.
    March 23, 1966.
    Kenneth D. Furlow, Beaumont, for appellant.
    Lefler, Walker & Lefler, Beaumont, for appellees.
   HIGHTOWER, Chief Justice.

This opinion involves the right of ap-pellees to have this court dismiss the appeal of appellant from an order of the district court overruling said appellant’s plea of privilege to be sued in the county of his residence.

The court below granted appellees’ motion for non-suit after presentation to it of the following motion, which motion fully sets out the pertinent facts and history of the case:

t( ⅛ * *
“Comes now BARBARA JO MOORE, joined herein by her husband, CHARLES E. MOORE, Plaintiffs in the above styled and numbered cause, and moves this honorable Court for a non-suit and in connection therewith would respectfully show unto the Court as follows:
“Plaintiffs would show unto the Court that Plaintiffs instituted this suit against Defendant, JIM BILLY STINSON, that the Defendant has not filed any cross-action against these Plaintiffs and is not seeking any affirmative relief against these Plaintiffs; that Defendant JIM BILLY STINSON, has heretofore filed herein his Plea of Privilege in this cause to have the cause transferred to Hardin County, Texas, that upon hearing of said Plea of Privilege same was overruled and an order overruling said Plea of Privilege was duly entered herein.
“Thereafter said Plea of Privilege was overruled and order overruling said Plea of Privilege was duly entered herein, the Defendant JIM BILLY STINSON, gave notice of appeal to the Court' of Civil Appeals for the 9th Supreme Judicial District of Texas, and proceeded to perfect his appeal from the order overruling said Plea of Privilege and said cause on said appeal is now pending before the Court of Civil Appeals for the 9th Supreme Judicial District of Texas, however, said Court has not acted on said appeal.
“Plaintiffs, BARBARA JO MOORE and her husband, CHARLES E. MOORE, do not desire to prosecute this suit any further and herewith move the Court for a non-suit. * * *”

In this case the appeal is from an order overruling appellant’s plea and the trial court retained jurisdiction of the case on the merits pending the appeal from the order overruling the plea of privilege. It, therefore, possessed authority to permit ap-pellees to take a non-suit at their own cost. Non-suit having been taken, the merits of appellant’s appeal from the order overruling his plea of privilege has become moot. McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331 (1930).

Appellees' motion to dismiss said appeal is, therefore, granted at their cost.

Appeal dismissed without prejudice.


text:
    Joe DeHOYOS, Appellant, v. TEXAS CASUALTY INSURANCE COMPANY, Appellee.
    No. 14457.
    Court of Civil Appeals of Texas. San Antonio.
    March 23, 1966.
    Rehearing Denied April 6, 1966.
    Lieck & Lieck, San Antonio, for appellant.
    Groce, Hebdon, Fahey & Smith, Charles L. Smith, San Antonio, for appellee.
   BARROW, Justice.

This is a workmen’s compensation action. Appellant, Joe DeHoyos, appeals from a judgment rendered after a non-jury trial whereby he recovered from appellee, Texas Casualty Insurance Company, compensation for a right and a left inguinal hernia which were found to have been successfully repaired. Appellee was ordered to pay compensation at the rate of $28.80 per week for twenty-six weeks for each of said hernias, together with the medical expenses of the operations.

Appellant urges that the trial court erred in limiting his recovery to twenty-six weeks for each hernia, in that appellee, hereinafter sometimes referred to as carrier, did not admit liability for the left hernia and therefore appellant was entitled to be compensated as for a general injury. Appellant asserts that the undisputed evidence showed that he was incapacitated from the left hernia for forty-five weeks.

In National Mutual Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089, the Supreme Court held that unless the insurer admitted liability and tendered an operation while the claim was pending before the Board, the claimant must be compensated as for a general injury and the provisions of Art. 8306, § 12b, Vernon’s Ann.Civ.St, could not be applied in the trial of the case on appeal. This holding is predicated on the ground that the district court could not act as an administrative board and was not empowered to order or supervise a hernia operation. Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 (1960). See also Texas Employers’ Insurance Ass’n. v. Shelton, 161 Tex. 259, 339 S.W.2d 519 (Tex.1960).

This rule does not require a reversal under the facts of this case. On October 11, 1963, while in the scope of his employment, appellant sustained an accidental injury while lifting a heavy tailgate. He went to the San Antonio Osteopathic Hospital, and on October 14 the right inguinal hernia was surgically repaired. The treating doctor was of the opinion that a left inguinal hernia had not developed, although that area was damaged. On February 5, 1964, appellant was seen again by this doctor, and at that time a left inguinal hernia had developed. The Board thereafter entered an order directing an operation for the left hernia. Carrier filed a form requesting appellant to report to the doctor, and on March 25,1964, the left inguinal hernia was surgically repaired. Although carrier stated that the principal issue before the Board was “duration of disability,” the final award of the Board, entered on June 24, 1964, denied compensation for the hernia on the left side because it did not appear suddenly and immediately.

This suit, appealing from the award, was brought by appellant as a claim seeking compensation for a general injury. Appellant urged that he was entitled to compensation on this basis because neither hernia was successfully repaired and further he had sustained other injuries to his lower abdomen.

The primary issue in dispute in the trial court was whether the left hernia was successfully repaired and, specifically, whether it had recurred. Dr. Gossett, who examined appellant on April 13, 1965, on behalf of appellee, testified that both hernia repairs were successful and that the external rings were fairly small to normal size. He found no objective symptoms of pain in appellant other than an infected prostate. In view of the testimony by a doctor called by appellant, that the left inguinal hernia had recurred, Dr. Gossett, at the suggestion of the trial court and appellant’s agreement, examined appellant in chambers. Following this examination the doctor testified that the hernia had not recurred and was still successfully repaired. Dr. Gossett’s testimony was believed by the trial court and it found that the hernias, which had occurred suddenly and immediately, were successfully repaired. No attack is made by appellant on the finding that the left hernia operation was a success.

After the conclusion of the trial on the merits on June 7, 1965, and after the court had announced its findings and judgment, appellant filed a motion seeking leave to reopen the case and to introduce in evidence the certified record of the Board’s proceedings so as to show that the Board had denied compensation for the left inguinal hernia. This motion was granted on June 18, 1965.

Appellant urges that in view of this fact the trial court erred in limiting his compensation to the left hernia to twenty-six weeks. This contention is without merit. Although this suit was brought in the nature of a general claim, there are no fact findings to support a recovery in excess of the twenty-six weeks incapacity awarded him in the judgment. The trial court stated at the conclusion of the hearing that appellant had not shown how long he was disabled following the repair of the left inguinal hernia. Appellant did not actually return to work until August, 1964; however, under the finding of the trial court, the hernia was successfully repaired on March 24. We cannot say, as a matter of law, from this record that the trial court erred in limiting appellant’s compensation to twenty-six weeks for the left inguinal hernia in addition to his medical expenses.

The judgment is affirmed.


author: McDonald, Chief Justice.

text:
    Henry WYNN et al., Appellants, v. R. J. RAUSAW, Appellee.
    No. 4443.
    Court of Civil Appeals of Texas. Waco.
    March 24, 1966.
    Mandell & Wright, John N. Barnhart, Houston, for appellants.
    Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, for appellee.
   McDonald, Chief Justice.

This is an appeal by defendants Wynn, et al, from a judgment for plaintiff Rausaw in an attachment suit.

Plaintiff Rausaw secured a judgment against Howard Lewis for $6000; (and on October 11, 1961 caused writ of attachment to issue and be levied by the sheriff of Harris County on $5860 in cash, as the money of Lewis.) The money was seized from the Houston Ticket Service, at the box office of the Houston City Auditorium where it represented proceeds of a show. Defendants Wynn and Supersonic Attractions, Inc., made affidavit pursuant to Rule 717 Texas Rules of Civil Procedure that the money belonged to them; posted claimant’s bond pursuant to Rules 718 and 719 T.R.C.P. on October 30, 1961, and secured delivery of the money to them. The sheriff returned the papers to the District Clerk, who docketed the cause on October 31, 1961. On July 9, 1962, plaintiff filed controverting plea to the claim of defendants, and asserted the $5860 attached by the sheriff was not the property of defendants, but was owned by Howard Lewis. Defendants moved for judgment on July 12, 1962 on the ground that plaintiff had neglected to join issue before the second term of court following filing of defendants’ claimants’ bond, which motion was overruled by the trial court. Defendants, on June 14, 1963, filed motion to non-suit plaintiff, contending the plaintiff’s controverting plea to defendants’ claim was not filed (as required by Rule 727 T.R.C.P.) before the second term after defendants filed claimants’ bond. This motion was overruled by the trial court.

Trial on the merits before the court without a jury resulted in judgment for plaintiff for the $5860 (with interest from October 11, 1961). The trial court filed findings and conclusions as follows:

FINDINGS OF FACT
1) On October 11, 1961 there was $5860 in the Box Office of the Houston City Auditorium.
2) Such $5860 was owned by Howard Lewis.
3) Howard Lewis was indebted to plaintiff Rausaw in the sum of $6000.
CONCLUSIONS OF LAW
1) Judgment of Rausaw against Lewis for $6000 is final.
2) All steps were taken in compliance with law to attach the moneys in the Houston City Auditorium Box Office.
3) Defendants having replevied such $5860 in cash, should have judgment rendered against them and their sureties for $5860.
4) Plaintiff should have interest from October 12, 1961 against defendants.

Defendants appeal on 17 points, principally contending:

1) The trial court erred in refusing judgment for defendants when plaintiff did not join issue on or before appearance day of the 2nd term after the cause had been docketed.
2) There is no evidence, or insufficient evidence, that Howard Lewis owned the $5860 of attached currency.
3) The trial court erred in excluding from evidence the producer-promoter contract.

Defendants’ 1st contention urges that Rule 728 T.R.C.P. required the trial court to non-suit plaintiff when plaintiff did not join issue on or before the appearance date of the second term after the cause had been docketed. Appearance date of the second term was July 2, 1962; and plaintiff’s controverting plea was filed on July 9, 1962.

Rule 728 T.R.C.P. provides: “If the plaintiff does not appear at the first term, the case shall be continued to the next term, when, if he appears, the like proceedings may be had as at the first term; but if he does not then appear, on or before the appearance day of said term, he shall be non-suited.”

Defendants’ motion for judgment; and later motion for non-suit were not filed until after plaintiff had filed his controverting plea joining issue. We think the trial court properly overruled such motions. See: Merrill v. Dunn, Tex.Civ.App., Er. Dis., 140 S.W.2d 320; Loftus v. Beckmann, Tex.Com.App., 1 S.W.2d 268; American Ind. Co. v. McCann, Tex.Com.App., 45 S.W.2d 174.

Defendants’ 2nd contention is that there is no evidence, or insufficient evidence, to support the finding that Howard Lewis owned the $5860.-

Defendant Supersonic Attractions, Inc. is in the business of contracting with enter-tamers and then staging their performance in different cities. Defendant Wynn is President of Supersonic. Defendants had contracted with a number of entertainers and performers known as the Jackie Wilson Show for a period including October 11, 1961 and were staging their performance in different cities. Howard Lewis is also in the entertainment business. It is undisputed that Lewis was connected with the performance of the Jackie Wilson Show in Houston on October 11, 1961. Defendants contend that Lewis was merely the promoter making the local arrangements for the show; while plaintiff contends that he was the owner of the show. Plaintiff had a judgment against Lewis, and attached the $5860 box office receipts of the Jackie Wilson Show at the Houston City Auditorium on October 11, 1961, as the money of Lewis. The money was in the possession of the Houston Ticket Service at the time of its attachment.

Defendants claim that they were the owners of the show and hence owners of the money, and received possession of the money from the sheriff by posting a claimants’ bond.

Rule 730 T.R.C.P. provides that if (attached) property be taken from the possession of the claimant, the burden of proof shall be on plaintiff. If it be taken from the possession of any other person than the claimant, the burden of proof shall be on the claimant. The money was taken from the possession of Houston Ticket Service, so the burden of proof as to ownership of the money, was on the defendant. The record reflects that the premises the money was seized from were rented to Howard Lewis on the night of the attachment; that Howard Lewis paid the required deposit to the City of Houston; that the City acknowledged rent of the premises by Lewis; that liability insurance coverage for the auditorium on the night in question was issued to Marcus Coleman; that Coleman was an employee of Lewis; that Lewis employed the Houston Ticket Service to handle the ticket sale; that the tickets were delivered to the Houston Ticket Service by Marcus Coleman; and that Howard Lewis was billed for their services by Houston Ticket Service. There is evidence that defendants sold the performance to Howard Lewis; and defendant Wynn refused to sell the Houston performance to one Don Roby, wiring him: “he had to give Lewis Houston.”

There is also evidence that Lewis was only the local promoter of the show; that defendants did not sell him the Houston performance of the show; and that defendants were the owners of the Houston performance, (and hence owners of the money in the box office on October 11, 1961).

We think the evidence ample to sustain the finding that Howard Lewis was owner of the show, and hence owner of the attached money.

Defendants’ 3rd contention complains of the trial court’s exclusion from evidence of a producer-promoter contract. The contract excluded was between defendants and a W. R. West; nowhere mentions Howard Lewis; and we think was properly excluded.

Defendants’ other complaints of exclusions of evidence by the trial court have been considered, and do not present reversible error. Rule 434, T.R.C.P.

All defendants’ points and contentions are overruled.

Affirmed.


author: EAGER, Presiding Judge.

text:
    In re Condemnation COLEMAN HIGHLANDS, Kansas City, Missouri. Sheridan E. KINDLE et al., Respondents, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
    No. 51526.
    Supreme Court of Missouri, Division No. 2.
    April 11, 1966.
    Don M. Jackson, Kansas City, Jackson, Wade & Barker, Kansas City, of counsel, for -respondents.
    Herbert C. Hoffman, City Counselor, Benj. M. Powers, Sp. Counsel, Kansas City, for appellant.
   EAGER, Presiding Judge.

This proceeding is one in condemnation under the provisions of the Kansas City Charter. The proceeding was instituted by the filing of the condemnation ordinance in the Circuit Court on February 12, 1965. Service was made by publication and by certified mail addressed to the various interested property owners; no point is raised regarding the service. The tract involved consists of substantially all of Coleman Highlands, an addition in Kansas City extending, generally speaking, from 31st Street to 35th Street, north and south, and from Summit Street (Southwest Traffic-way) to Holly Street, east and west. Its dimensions are approximately 2600 feet by 1300 feet. There are apparently 311 lots in the addition, and several streets run wholly or partially through it; one of these is Karnes Boulevard which runs generally north and south through the easterly portion, it being the next street west of Summit. Since no evidence was heard, we take our information from a map filed concurrently with the ordinance and made a part of our transcript.

The ordinance recites, in substance, the following: that the use of all lots in Coleman Highlands was originally restricted (obviously about 1903) to “detached residences” and suitable outbuildings, but that such provisions “were to expire” by their terms on June 1, 1923; that the City extended those provisions “by ordinance” for an additional twenty years, and again did so by ordinance passed on May 10, 1943, it being further recited that the latter ordinance operated in “substantially the same manner as is provided in this ordinance”; that all buildings on the various streets in the addition were used exclusively for residential purposes and that “the overwhelming sentiment and belief of the property owners immediately interested, and of all citizens who desire to make Kansas City a good place in which to live, and of the Council are that the enactment and enforcement of this ordinance will enhance and stabilize the value and utility of each and every piece of property within the district herein described and will maintain property values for the purpose of public taxation and will promote the health and welfare of the city, as well as add to the beautification of the city and of said Coleman Highlands Addition, * * *.” Following the foregoing, it was enacted that: for a period of twenty years from the effective date of the ordinance the lots, tracts and parcels of land, in Coleman Highlands (except a group of 23 and a fraction lots at the northwest corner, — with no explanation for the exception) should be restricted in use as therein provided, namely, that “no house or buildings, other than single detached residences, each for the use of one family only * * * shall be constructed or used * * Other provisions were included concerning the land area for each building constructed, billboards, gasoline tanks and filling stations; these are not immediately material to our discussion. The ordinance further provided that since the owners might “claim” that their properties had been taken or damaged for public use, all rights of the owners to use any of such property contrary to the provisions of the ordinance were thereby “taken and condemned for public use”; it further provided that compensation should be assessed and paid in accordance with the Charter, by special assessment to be levied upon a benefit district with boundaries precisely the same as those of the tract under condemnation. It was further provided that the ordinance should be effective notwithstanding any provision of the Kansas City general zoning ordinance, and that it might be repealed within said period of twenty years only “upon the petition of a majority of the owners” of property within the benefit district, both in number and in front footage.

On March 15, 1965, ten lot owners in the addition filed a petition for declaratory judgment seeking a declaration that the ordinance was unconstitutional and void, generally upon the theory that the taking was for private use and benefit, that it was ultra vires, and that it constituted a taking of their property rights without due process. For reasons to be developed, we shall not need to elaborate further on that petition.

Five motions to dismiss the condemnation proceedings were filed by property owners in the district, representing sundry pieces of property. These motions alleged generally: that the ordinance was violative of Article 1, §§ 26 and 28 of the Missouri Constitution, V.A.M.S., in that it directed the taking of private property and rights for private use, under the pretext of taking it for public use; that it was ultra vires, and contrary to the provisions of the charter; that it was enacted predominantly for the private benefit of those owners of property in the district who desired to maintain one-family occupancy; that the enforcement of the ordinance against properties fronting on the Southwest Trafficway would not serve any of the purposes recited; that any possible public benefit would be merely incidental; that the ordinance deprived the owners of property rights without due process, and that it was not authorized under the condemnation provisions of the Kansas City Charter.

The court consolidated the condemnation proceedings with the declaratory judgment suit and on April 22, 1965 (order re-entered in more specific form on May 11, 1965) sustained all of the motions to dismiss, and dismissed the consolidated causes with prejudice, without the hearing of any evidence. In due time the City appealed. The obvious question is whether such a condemnation proceeding was and is legally permissible. We shall refer to the condemnor as the City.

Kansas City is given the following general power of condemnation by Article 1, § 1(9) of its Charter: “To exercise the right of eminent domain and to condemn property, real or personal, or any right, interest, easement, restriction or use therein, within or without the city or state for any public or municipal use or purpose.” As already stated, no evidence was heard, and no stipulation of facts was filed. In the briefs both parties indulge in rather elaborate factual statements, but we may not and do not consider these as established or stipulated facts. We do know that Kansas City has a general zoning ordinance, for it is pleaded. The City has chosen the present route, with a proposed compensation to property owners, rather than an attempted amendment of its zoning law which would necessarily recognize existing uses to the extent provided, and require compliance with a fixed procedure. We are not told, except informally, the present zoning of this property, but we may reasonably assume that it is not zoned for single family dwellings, or else there would be no necessity for the present condemnation proceedings; and we may further reasonably assume that there are now some existing structures and uses in the district which do not consist of single family detached residences.

The position of the City is, briefly: that it has the discretion and the option to use its power of eminent domain rather than its police power to restrict the use of private property; that the condemnation here is for a public purpose; and that it is not violative of any constitutional or charter provisions. The property owners say, as already indicated: that the ordinance would, in fact, take their property rights for the benefit of those private owners in the district who desire the restriction; that there is no bona fide public purpose, and that any possible public benefit would be purely incidental; that, as such, the proceeding violates both the federal and state constitutions in specified respects, and that it is beyond the charter powers of the City.

If we decide this appeal on the merits we must determine whether, on this record, the purpose and use are or are not public, or, in the alternative, that the ordinance on its face is violative of due process or is ultra vires. There is no fixed or stereotyped definition of the term “public use.” Under Article 1, §§ 26 and 28, Missouri Constitution, private property may not be taken for private use, and it may only be taken for public use with “just compensation” ; and whether the use is a public one shall be “judicially determined without regard to any legislative declaration that the use is public.” A legislative determination may be conclusive upon a question of expediency or necessity. State ex rel. State Highway Commission v. Curtis, 359 Mo. 402, 222 S.W.2d 64; State ex rel. State Highway Commission v. Shultz, 241 Mo.App. 570, 243 S.W.2d 808; City of Caruthersville v. Ferguson, Mo., 226 S.W. 912.

Where the public use or purpose is questioned in a condemnation case the Missouri courts have, with substantial unanimity, heard evidence on the question, unless a stipulation of facts has been filed or the facts are matters of common knowledge. Thus, see: In the Matter of Proceedings to Grade North Elmwood Avenue, Mo., 270 S.W.2d 863; Kansas City v. Liebi, Banc, 1923, 298 Mo. 569, 252 S.W. 404, 28 A.L.R. 295 (relied on strongly by appellant); Bowman v. Kansas City, Mo., 233 S.W.2d 26; Woodmansee v. Kansas City, 346 Mo. 919, 144 S.W.2d 137; City of Kirkwood v. Venable, 351 Mo. 460, 173 S.W.2d 8; these illustrations are in addition to sundry cases from other states cited by respondents, in all or substantially all of which evidence appears to have been heard. In Bowman, supra, the court said at 233 S.W.2d loc. cit. 30: “Where the exercise of the power of eminent domain is proposed, a properly interested party such as a taxpayer, has a right to demand that the court hear evidence to determine whether the taking is for a public or a private use.” We add here, parenthetically, that respondents had no need'.to “demand” the hearing of evidence, for their motions were sustained without it. Also, the factual situation may have a very material bearing on the issue raised by the assertion that property rights are being taken without due process. Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833.

Under these circumstances, the merits of the respective contentions can more properly he determined after the trial court has heard evidence; this it may do, in its discretion, prior to any hearing in the actual condemnation upon a reconsideration of the motions to dismiss; or, in the alternative, it may prefer to hear the declaratory judgment suit. Among other evidentiary facts, we suggest that the evidence should develop the following: the type and nature of all existing structures and uses in the district covered by the proceedings, as well as those in the immediately surrounding areas; the explanation (if such can be arrived at by admissible evidence or stipulation) for excepting a number of lots at the northwest corner of the addition; the past and present zoning of the addition; whether efforts have ever been made to rezone it, or any portions of it; the comparative character of the different parts of the addition; what changes, including construction, demolition and reconstruction, would be required on existing structures in order to conform fully to the present ordinance-; the traffic conditions both in and along the edges of the district; the locations of the lot lines and buildings along Southwest Trafficway (Summit Street); and whether or not the present proceedings were instituted upon petition (or request) of property owners in the district. These and kindred matters should be considered as bearing upon the nature of the proposed use, and also upon the possible issue of substantive due process, namely, whether the action might (as to the particular properties involved) be considered as arbitrary and unreasonable because having no substantial relationship to the “public health, safety, morals, or general welfare.” Huttig v. City of Richmond Heights, Mo., 372 S.W.2d 833. In this we do not consider as material the fact asserted by the City that the condemnation procedure prescribed by Kansas City’s Charter may have been held sufficient in answer to objections that it does not afford procedural due process. We also note here for the consideration of the trial court on remand, the provision of the ordinance that it may only be repealed within a twenty-year period upon petition of a majority of the property owners in the district, in number and frontage. While it does not immediately appear how the hearing of evidence may in any way amplify this, we note it because upon a further hearing the court may well make, if requested or of its own motion, findings of fact and conclusions of law.

It is entirely unnecessary, in this state of the case, to discuss any of the authorities cited on the merits, except for a passing reference. The City cites and largely relies upon the case of Kansas City v. Liebi, Banc, 1923, 298 Mo. 569, 252 S.W. 404, 28 A.L.R. 295. We do note that there the court adopted what it described as a liberal and flexible interpretation of “public use” which, it said, was synonymous with “public advantage” or “public benefit,” and did not require that there should be an actual use or occupation of the land by the public or a public agency. It further stated, at loc. cit. 408, that: “In order to constitute public use, it is not necessary that the whole community or any large part of it should actually use or be benefited by a contemplated improvement. Benefit to any considerable number is sufficient.” That case has been cited several times on these statements of general principles, and as recently as in Arata v. Monsanto Chemical Co., Mo., 351 S.W.2d 717, but none of those cases involved such a situation as we have here. They held to be public purposes such uses as highway improvements, slum clearance and redevelopment, public parks, a municipal parking garage, etc. There were and are certain factual differences between the situation in the Liebi case and that in the present one which may or may not be material. The Liebi case is the only Missouri case cited by the City in which (in effect) a zoning result was accomplished in a condemnation case, without an actual physical taking of land. We note also that it has been said that if the public purpose is primary and paramount it will not be defeated by the fact that a private use or benefit will result incidentally; but, if the chief dominating purpose or use is private, the mere fact that a public use or benefit is also incidentally derived will not warrant the exercise of the power of eminent domain. 18 Am.Jur., Eminent Domain, §§ 41, 42; 53 A.L.R. Annotation 9, 24.

The judgment in the consolidated causes is reversed and the causes are remanded for further proceedings as indicated in this opinion.

All of the Judges concur.


author: DONNELLY, Judge.

text:
    Esta Jane ZEIGENBEIN, a minor, by and through her natural father and next friend, Edward Zeigenbein, et al., Plaintiffs-Appellants, v. Mary THORNSBERRY, Defendant-Respondent.
    No. 51486.
    Supreme Court of Missouri, Division No. 1.
    April 11, 1966.

      Cohn & Lentz, by Arthur B. Cohn, Waynesville, for plaintiffs-appellants.
    Allen, Woolsey & Fisher, Harold J. Fisher, Robert C. Fields, Russell G. Clark, Springfield, for defendant-respondent.
   DONNELLY, Judge.

This is an action for damages resulting from a vehicular collision in Pulaski County, Missouri, which occurred February 5, 1963. Esta Jane Zeigenbein, a minor, by her next friend, sued in Count I of the Petition for $50,000. Her parents, Mr. and Mrs. Edward Zeigenbein, sued in Count II of the Petition for $25,000. The trial court, at the close of plaintiffs’ evidence, sustained defendant’s motion for directed verdict. Plaintiffs have perfected an appeal to this Court.

The principal question on this appeal is whether the trial court erred in sustaining the motion for directed verdict on the ground that plaintiffs failed to make a submissible case against defendant. In determining whether or not a submissible case was made for the jury, we must consider the evidence from a viewpoint most favorable to plaintiffs^ and give plaintiffs “the benefit of every reasonable favorable inference which the evidence tends to support.” Berry v. Harmon, Mo.Sup., 329 S.W.2d 784, 789.

The parties agree a collision occurred between a vehicle operated by Lloyd Poul-son and a vehicle operated by defendant, Mary Thornsberry, at a point on AA Highway in Pulaski County, near Crocker, Missouri. Esta Jane Zeigenbein was riding in the Poulson car as a passenger in the right front seat. Her sister, Georgia Sharp, was riding in the Poulson car as a passenger in the right rear seat. The collision occurred at about ten o’clock at night. The weather was clear and the highway dry. The highway was blacktop, eighteen feet wide, with shoulders three feet in width. Traveling east at the scene of the collision, there was a slight rise in the highway and a slight curve to the left. The Poulson vehicle was traveling east. The Thornsberry vehicle was traveling west.

Plaintiffs plead and contend here that defendant was negligent in driving her vehicle into the south half of the highway into collision with the Poulson vehicle. We will review the evidence and determine whether it is sufficient to make a submis-sible case.

We first consider whether the circumstantial evidence of physical facts is sufficient to make a submissible case. Each vehicle was damaged on its left front. After the collision, debris and dirt coyered the highway from shoulder to shoulder and extended fifteen feet east and west. Most of it was in the center of the highway. A wheel was found in the north half of the highway near the center. Tire tracks or marks left by metal were located on both the north and south edges of the highway. Tracks from the Thornsberry automobile showed that after the collision it went into a ditch along the north side of the highway, came out of the ditch, crossed the highway, and came to rest west of the debris and on the south side of the highway. The Poulson car came to rest on the south side of the highway and east of the debris. We are of the opinion that this evidence does not “exclude guesswork, conjecture, and speculation as to the existence of the necessary facts.” Schoen v. Plaza Express Co., Mo.Sup., 206 S.W.2d 536, 538. The physical facts do not “with compelling force indicate just where on the highway this collision occurred,” Berry v. Harmon, Mo.Sup., 323 S.W.2d 691, 696, and are not sufficient to make a submissible case of negligence.

We next consider whether the testimony of plaintiff Esta Jane Zeigenbein is sufficient to make a submissible case. Esta Jane testified on direct examination that just before the accident occurred she saw lights coming and that these lights were located “about the middle of the road.” On cross-examination, she testified that when she saw the lights, she “never saw the road” and was “not able to place those lights as being on any particular point or place in the roadway before the accident happened.” Obviously, what she said on direct examination was shown on cross-examination to be a mere guess on her part and of no probative value, and is not sufficient to make a submissible ease of negligence. Van Bibber v. Swift, 286 Mo. 317, 228 S.W. 69, 76.

Plaintiffs’ case must stand or fall on the testimony of Georgia Sharp. Georgia testified on direct examination in part as follows :

“Q Now, just before the collision occurred, can you tell us if you noticed anything coming towards you on the highway?

“A Yes, sir.

“Q At that particular time can you tell us where you were located in the car?

“A I was on the right-hand side in the back seat.

“Q And where were you looking?

“A Straight ahead.

“Q And you were looking out of what portion of the automobile which you were in? A The right.

“Q And were you looking out the front or the side?

“A The front.

“Q Could you see out the front windshield of the automobile in which you were in?

“A Yes.”

⅜ ⅝ ⅜ ⅝ ⅝ ⅝

“Q And tell us what you saw as you looked out the front windshield of the automobile just before the collision?

“A I saw a car coming down the road.

“Q And where — where did you — what did you notice about this car?

“A That it was in our lane.

“Q And how could you tell that?

“A Because I just knew it.

“Q Did you see the lights on this car as it was approaching you? A Yes.

“Q Do you know whether or not the lights were on dim or on bright? A Yes.

“Q What were they on? A Bright.

“Q Can you tell us how long a period of time after you first saw these lights that the collision occurred?

“A IYs just a few seconds.

“Q And what did you do, if anything, after you saw the lights approaching on your side of the road?

“A I ducked down.

“Q And did you see the actual cars hit? A No.”

Georgia testified on cross-examination in part as follows:

“Q * * * Now, in connection with what you observed as you were driving along there and riding in this automobile, isn’t it a fact that sometime during this period immediately before the accident, or when the accident happened, that you were reaching down in your purse to get cigarettes? A I’d started to get a cigarette.

“Q And when you reached down to get those cigarettes that’s when the accident happened, did it not? A Yes.

“Q So when you told Mr. Cohn about ducking down, that’s — I mean, you meant you turned your head down to see your purse and get your cigarettes out of it; is that correct? A Yes.

“Q Now, — and actually, then, when the accident happened; that is, when these two cars came together, you were not looking ahead out the windshield, were you?

“A Not when we hit.

“Q That’s correct. You had — before you looked down were reaching in your purse for a cigarette, you had been looking out the windshield in the front of the car before that time; is that correct?

“A Yes.

“Q Now, isn’t it also a fact that after then you saw these lights of a car coming toward you? Now, that — that’s before you reached down for the cigarettes; is that correct? Do I understand you? A Yes.

“Q And at that time I believe you told Mr. Cohn it seemed to you the lights were on bright; is that correct? A Yes.

“Q And then you reached down for your cigarettes and had your head down and the accident happened; is that correct? A Yes.

“Q Is it not true, and have you not previously stated that when you looked down to get your cigarettes that you did not know and there was nothing that made you think that there was going to be an accident was there? A She was on our side of the road.

“Q Well, when you reached down to get your cigarettes, have not you previously stated that there was nothing that made you think there was doing to be an accident? A I don’t know.

“Q Well, when you saw these lights coming and you reached down to get a cigarette, you didn’t think there was going to be an accident or you wouldn’t have been reaching for a cigarette at that time, would you? A I didn’t have time to think.

“Q Well, you had time to take your eyes off the road and look down and think about getting a cigarette, didn’t you?

“A I had started to get a cigarette and I saw the lights.

“Q And you then just went on about continuing what you had started to do, that was getting your cigarette; is that correct ?

“A Ducking down.

“Q Well, you looked down to get your cigarette? A Yes.”

“Q That’s what you were doing when the accident happened, isn’t it? Is that correct ?

“A I started to get a cigarette.

“Q As I understand, you’d started to get this cigarette before you saw these lights coming toward you?

“A As I started to get the cigarette I looked and I saw the car coming.

“Q And then you just continued even after seeing those lights, you continued on doing what you had started to do; that is, looked down in your purse and reaching in your purse to get a cigarette; is that correct?

“A I didn’t reach in my purse. I started to get a cigarette but I didn’t have time.

“Q But you were looking down at your purse with the intent of getting the cigarette; is that correct ? A Yes.

“Q And that’s what you had started to do before you saw the lights, isn’t it? A Yes.

“Q And that’s what you were still doing when the accident happened, is it not?

“A I don’t know — it happened so fast.

“Q Is — is that the fact, that actually it happened so fast that you don’t know what happened ?

“A I know what happened. I looked, I saw the lights and we were on our side of the road, and then I just ducked down and it just happened — it was a very few seconds when I — after I saw the lights.

“Q But when you saw these lights coming and when you looked down to get your cigarettes, you did not think that there was going to be an accident, did you?

“A I didn’t have time to think anything.

“Q Well, then, you had no thoughts that there was going to be an accident then; is that correct ?”

******

“THE WITNESS: Yes.”

The duty to make their case is upon plaintiffs and they “must remove it from the field of conjecture and establish it by substantial evidence of probative value, or by inferences reasonably to be drawn from the evidence.” Vietmeier v. Voss, Mo.Sup., 246 S.W.2d 785, 787; Probst v. Seyer, Mo.Sup., 353 S.W.2d 798.

“Substantial evidence is that evidence which, if true, ‘has probative force upon the issues * * *,’ and from which the trier of fact can reasonably decide the case on the fact issues. Collins v. Division of Welfare, 364 Mo. 1032, 270 S.W.2d 817, cited by petitioner.” Cupples-Hesse Corporation v. State Tax Commission, Mo.Sup., 329 S.W.2d 696, 702.

Georgia Sharp testified that just before the collision defendant’s vehicle was coming down the road “in our lane.” She stated that after she first saw the lights “just a few seconds” elapsed before the collision occurred. She testified on cross-examination that she “didn’t have time to think anything.” Defendant contends the evidence elicited from Georgia Sharp is insubstantial because she stated “a few seconds” elapsed after she first saw the lights and before the collision occurred. It is true that evidence of one’s prior negligence if unconnected with her alleged negligence at collision may be too remote to tend to prove causal negligence at the time of the collision. Shepard v. Harris, Mo.Sup., 329 S.W.2d 1. However, in view of all the evidence, her testftnony was substantial evidence showing that defendant’s vehicle was on the wrong side of the highway when the collision occurred. Douglas v. Twenter, 364 Mo. 71, 259 S.W.2d 353, 357. Defendant contends that Georgia’s testimony that defendant’s vehicle was in the wrong lane was rendered a conclusion and not a fact when Georgia said, “because I just knew It.” It is true that a case, to be submissible to a jury, depends upon proof of facts and cannot be sustained by mere conclusions of witnesses. Van Bibber v. Swift, supra; Andrews v. Raiber, Mo.App., 270 S.W.2d 529. Also, a witness may qualify her testimony in such a way as to render it of no probative value. Van Bibber v. Swift, supra; Oglesby v. Missouri Pac. R. Co., 177 Mo. 272, 296, 76 S.W. 623, 627, 628. In our opinion, when Georgia said, “because I just knew it,” she did not render her prior testimony a conclusion. This evidence and the cross-examination inferring that Georgia did not “duck down” but was in fact reaching for a cigarette may have weakened plaintiffs’ case. However, it affected only the credibility of plaintiffs’ evidence and the weight to be given by a jury. It remained substantial evidence of probative value. Anderson v. Bell, Mo.Sup., 303 S.W.2d 93, 96; Huffman v. Mercer, Mo.Sup., 295 S.W.2d 27, 32; Higgins v. Terminal R. R. Ass’n of St. Louis, 362 Mo. 264, 274, 241 S.W.2d 380, 384; Swain v. Anders, et al., 349 Mo. 963, 970, 163 S.W.2d 1045, 1049, 1050.

We know that “to make a submis-sible case there must be substantial evidence not only of negligence, but substantial evidence that such negligence directly caused or contributed to directly cause plaintiff’s injuries; and that the usual test as to causal connection is whether the facts show that absent the negligent act, the injuries would not have been sustained.” Wood v. St. Louis Public Service Co., 362 Mo. 1103, 1109, 246 S.W.2d 807, 811. Defendant cites King v. Ellis, Mo.Sup., 359 S.W.2d 685; O’Neill v. Claypool, Mo.Sup., 341 S.W.2d 129; Sanders v. Henderson, Mo.Sup., 301 S.W.2d 748; Probst v. Seyer, supra; Andrews v. Raiber, supra; Williams v. Cavender, Mo.Sup., 378 S.W.2d 537; and Mount Olivet Baptist Church v. George, Mo.Sup., 378 S.W.2d 549. These cases are distinguishable on the facts and do not assist us here. As defendant suggests, in all probability no case has been decided in Missouri with facts identical to those in the instant case. Ordinarily, however, proof of the driving of a car onto the wrong side of the highway and into collision makes a sub-missible case of negligence. Evans v. Colombo, Mo.Sup., 319 S.W.2d 549, 551.

We are of the opinion that the testimony of Georgia Sharp made a submis-sible case for the jury, based upon facts and not conclusions, and that its probative value was not destroyed on cross-examination. Viewing her testimony from the standpoint most favorable to plaintiffs, the jury could reasonably have found that defendant drove her vehicle onto the wrong side of the highway into collision and that absent such negligence the collision would not have occurred. We hold a submissible case was made for the jury.

Accordingly, the case is reversed and remanded.

All concur.


text:
    John NOWLIN, Appellant, v. COLUMBIA SCHOOL DISTRICT, Edwin D. Bihr, President, Lee Schaperkotter, Vice President, A. G. Unkelsbay, Member, M. Eugene Windmiller, Member, John W. Woodward, Member, J. R. Warrick, Member, and James E. Saunders, Secretary, Respondents.
    No. 50995.
    Supreme Court of Missouri, Division No. 2.
    March 14, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 11, 1966.

      Scott O. Wright, Brown, Wright & Will-brand, Columbia, for appellant.
    Spencer, Hines & Petri, Columbia, for respondents.
   EAGER, Presiding Judge.

This is an action for the return of a ten percent deposit made by plaintiff upon the purchase, at public sale, of one-half acre of land from defendant School District. The basis of plaintiff’s action was that defendant had not furnished a merchantable title to the premises in accordance with its advertisement and its announcement at the sale. Defendant denied that it did not have merchantable title, and counterclaimed for specific performance of the contract of purchase.

An opinion has previously been written and filed in the case, but a rehearing was granted and the case has been re-argued. We shall, in this opinion, incorporate certain parts of the prior opinion without quotations. The cause was tried to the court and taken under advisement. Thereafter, the court found generally for defendant on plaintiff’s petition, found for the defendant on its counterclaim, decreed specific performance of the contract, and ordered that plaintiff pay to defendant $7,-740 as the balance of the purchase price and that he accept delivery of defendant’s deed. Upon the overruling of plaintiff’s after-trial motions a memorandum opinion was filed, which will be referred to later. Title to real estate .is involved and we have jurisdiction.

Plaintiff’s sole claim that the title was not merchantable rests in the contention that a reversionary interest was created by an 1867 deed, and that two suits to determine title had been ineffective to cure the defect. In 1866 one John F. Burnam acquired by Sheriff’s deed in partition “Part of the North West Quarter of Section Nine (9), Township Forty Eight (48), Range Twelve (12), containing 137 acres.” Shortly thereafter he had a “courses and distances” survey made by which it was shown that he had 126.16 acres, being a part of the North West Quarter of said Section Nine. On December S, 1867, John F. Burnam conveyed by warranty deed to “M. R. Arnold, President of the Board of Education for Township 48, Range 12” a tract therein described as: “Commencing at the NE comer of the NW Quarter of Section Nine (9), Township (48), Range Twelve (12); thence South Sixty Nine yards; thence West Thirty five yards; thence North Sixty nine yards; thence East Thirty five yards to the beginning, containing one half acre, more or less.” The habendum and warranty clauses of that deed were as follows: “TO HAVE AND TO HOLD the same, together with all the rights, immunities, privileges and appurtenances to the same belonging, unto-the said party of the Second' Part and to his successor, so long as the same shall he used as a site for a school house in said district, and used as such, and no longer. Whenever it fails to he so used, then to revert to the said Burnam. The said party of the first part hereby covenanting that he, & his heirs, executors and administrators shall and will Warrant and Defend the title to the premises unto the said party of the Second Part and to his successors forever, against the lawful claims of all persons whomsoever, subject to the condition aforesaid." (Italics added.)

The property was occupied by what was known as the Zaring School District (it is not affirmatively shown that it was the successor to the grantee in the 1867 deed, but no such question is raised) until the end of the school year of 1961-1962, namely, until the spring of 1962. During that school year that district was annexed to the Columbia School District, defendant herein. During the following school year (1962-1963) the children of the annexed district were transported to schools within the City of Columbia. The property was then declared nonusable for school purposes, and defendant authorized its sale at auction on January 26, 1963. The Notice of Public Auction prescribed the terms of sale and stated that the transfer of ownership would be by merchantable title to the successful bidder and that an abstract of title would be furnished.

Prior to the sale date and on October 3, 1962, the School District filed its petition to ascertain and determine the estate, title and interest of plaintiff in the described tract and also the interests of those named as defendants. The description of the real estate in the petition and in the subsequent decree was the same as in the 1867 deed from Burnam. By paragraph 2 of the petition the plaintiff alleged its adverse possession of said lands for more than 31 years, “to-wit: Ninety five (95) years.” By paragraph 4 of the petition the Burnam deed of 1867 was pleaded and it was alleged that this deed reserved “in said John F. Burnam, personally, a reversionary interest whenever said real estate was no longer used for a school house site.” By paragraph 5 it was pleaded, “That by law and equity the personal reversion of' the said defendant John F. Burnam has long since been extinguished and of no legal effect, but that the same constitutes a cloud on the title of plaintiff.” (Italics added.) Among the defendants named in the suit were predecessors and successors in title (again under vague, incomplete descriptions to the lands) of John F. Burnam, as well as John F. Burnam himself, and also the “unknown consorts, heirs, devisees, donees, alienees or immediate, mesne or remote, voluntary or involuntary Grantees” of each- of such parties, if dead. Also named as defendants were Russell Thiel-bar and Grace Thielbar, his wife, who in 1945 had obtained a decree quieting title in themselves to ■ a tract which included adjoining lands and the school site; the School District alleged that the 1945 decree was a cloud on its title, although it had not been named as a party defendant in the Thielbar quiet title suit.

The prayer of the School District’s petition in its title suit, in usual form, was “that the court decree and adjudge that the plaintiff is the sole owner of said real estate (therein described as per the 1867 deed), and that the defendants and all persons claiming by, through or under said defendants be forever barred and enjoined from asserting any claim, right, title and interest in and to said real estate or any part thereof, adverse to plaintiff, and that plaintiff’s title in and to said real estate be quieted, perfected and the clouds against said real estate removed, * * (Parentheses added.) Service in the cause was by publication, except for the Thiel-bars who were served personally.

The decree for plaintiff, Columbia School District, was dated November 30, 1962, and filed December 1, 1962; it divested the real estate out of defendants and each of them and vested the same in plaintiff, and it was “further ordered, adjudged and decreed by the Court, that the above named defendants and each of them, and each and every one claiming by, through or under any one of them, be forever barred and enjoined from asserting any right, title or interest in and to said real estate or any part thereof adverse to the plaintiff, School District of Columbia, Columbia, Missouri, and those who may hereafter claim, by, through or under said plaintiff.” Quite apparently, the petition was based in part upon the provisions of § 527.150, and the decree was in accordance with that statutory authority.

Undoubtedly the words used in the 1867 deed created a fee simple determinable under the Missouri authorities. Donehue v. Nilges, 364 Mo. 705, 266 S.W.2d 553, 45 A.L.R.2d 1150; Board v. Nevada School District, 363 Mo. 328, 251 S.W.2d 20; Chouteau v. City of St. Louis, 331 Mo. 781, 55 S.W.2d 299. Also, under appropriate provisions a reversionary interest may descend to grantor’s heirs, Smith v. School Dist. No. 6 of Jefferson County, Mo., 250 S.W.2d 795, Baker v. Baker, 363 Mo. 318, 251 S.W.2d 31, 33 A.L.R.2d 1431, at least in the absence of a judicial determination that the interest was merely a personal right. We have been cited to no case directly in point on the wording of the Burnam deed.

We have, however, an adjudication upon a petition to ascertain and determine title which ruled, although in general terms, that John F. Burnam retained only a personal reversionary right under the 1867 deed. The nature of the reversion was an issue directly raised in the petition. By that decree, if final and not subject to an effective attack, it would follow that Burnam’s reversionary right did not descend to his heirs. We may take judicial notice of the fact that Burnam was dead in 1962. He did not attempt to convey or assign his possibility of reversion, for the abstract of the record (an exhibit here) shows that when he conveyed his land to one Clark, his description called for one acre less than the amount which his own survey showed. Regardless of the power or lack of power to convey such an interest, Donehue v. Nilges, 364 Mo. 705, 266 S.W.2d 553, 45 A.L.R.2d 1150; Smith v. School Dist. No. 6 of Jefferson County, Mo., 250 S.W.2d 795, Burnam thus evidenced an intent not to assign or convey his reversionary interest in the school tract. In his deed to Clark, Burnam not only omitted one acre, but he warranted that he would defend the title to the land thus conveyed against the lawful claims of all persons whomsoever. We will not attribute to him an intent to include in such a deed the school tract which he had conveyed about one year earlier, retaining only a possibility of reverter. Our ruling on this point is in accordance with the memorandum opinion filed by the trial court, which we may consider as containing its findings. Civil Rule 73.01.

We shall not attempt, here to re-adjudicate the issue concerning the nature of Burnam’s reversionary interest. There was no appeal from the judgment. The question does remain, however, — was the determination in the quiet title judgment binding upon plaintiff at the time his attorney examined the abstract and a deed was tendered? The judgment was dated November 30, 1962. This present suit was filed on July S, 1963. It was, of course, during that interim that plaintiff rejected the title. Sections Sll.170-Sll.230 provide the time limitations and the manner of reopening judgments upon default in quiet title suits, as well as others. In the absence of notice served upon a nonappearing defendant after the judgment, a defendant may file petition for review within three years after the judgment is rendered. Section 511.190. If such be not done, “the same shall stand absolute.” See also Civil Rules 74.12-74.15, inclusive. There has been in the past some misapprehension as to the applicability of § 527.210, § 527.220 in similar situations, but it has now been held specifically that those sections have no applicability to judgments in suits to quiet and determine title. Stull v. Johnson, Mo., 280 S.W.2d 71; Dillbeck v. Johnson, 344 Mo. 845, 129 S.W.2d 885.

It seems to be established, and we so hold, that a judgment determining title, based upon constructive service without personal appearance, is not final until the expiration of three years after its rendition. The cases in Missouri are few and not so definite as might be desired; however, that seems to be the necessary result of the rulings in Osage Investment Co. v. Sigrist, 298 Mo. 139, 250 S.W. 39, and Ives v. Crawford County Farmers’ Bank, 140 Mo.App. 293, 124 S.W. 23. In Sigrist, supra, the court said at 250 S.W. loc. cit. 40: “In fact, a judgment by default, rendered upon constructive service, is, as between the parties, essentially a conditional judgment, one which becomes final and absolute only at the expiration of the time limited by the statute, and which in the meantime is liable to be opened whenever the defendant complies with the statutory formula. See Albright v. Warkentin, 31 Kan. 442, 445, 2 Pac. 614.” It has been held very specifically in other jurisdictions that such a judgment in a quiet title suit may not be relied upon as final for the purpose of creating a marketable title until after the expiration of the statutory time allowed for attacking the judgment by motion or petition for review. Morley v. Gieseker, 142 Colo. 490, 351 P.2d 392; Ewing v. Plummer, 308 Ill. 585, 140 N.E. 42; Dalton v. Lybarger, 152 Ark. 192, 237 S.W. 694; Middleton v. Moore, Tex.Civ.App., 289 S.W. 1045; Parker v. Mouse, 148 Kan. 643, 84 P.2d 941; Reese v. Levin, 98 Fla. 397, 123 So. 809; Wurfel v. Bockler, 106 Or. 579, 210 P. 213. We deem it unnecessary to discuss these authorities. Here, while we consider that the issue of Burnam’s reversion was adjudicated, the right of his heirs to question the judgment within three years by petition for review was not such a bare possibility that we may disregard it. We cannot say that, as of the time of performance of the contract, the title decree had made the title merchantable, if it was not merchantable earlier. It may be that no petition for review has yet been filed, but we cannot impose upon the plaintiff a finality resulting from the lapse of three years, most of which has run (if so) since the rights of the parties became fixed by refusal to perform. Middleton v. Moore, Tex.Civ.App., 289 S.W. 1045, 1049.

We hold that the conclusion of the trial court in the present case that the reversion descended to Burnam’s heirs (it not having been assigned or conveyed), but that it was barred by the quiet title decree, was incorrect in both particulars. If the members of the Bar wish to approve titles based upon such a decree prior to the expiration of three years, doing so because of the improbability of attack, that is their privilege.

Plaintiff’s assertions that the quiet title decree was void because the petition was fraudulent in alleging adverse possession hardly justifies substantial consideration. More specifically, plaintiff says that the School District’s possession was merely permissive until- the school was abandoned in the spring of 1962. The petition alleged adverse possession generally against all defendants, and that none of the defendants had been in possession for 95 years; it also alleged in some detail the circumstance of the Burnam deed, its contention that the reversion therein was merely personal, and the claimed fact that the reversion had long since expired. Since Burnam’s deed constituted a fee title except for the possibility of a reverter, we see no bad faith in these allegations as against his heirs; nor would it constitute fraud or bad faith for the School District to claim adverse possession as against the Thielbars (alleging the necessary facts) who had no interest in any reversion, but who had included the school tract in their quiet title judgment. The School District’s judgment quieting the title was not void for the reasons claimed.

The remaining question concerns the matter of title insurance. After plaintiff had objected to the title as shown by the abstract and negotiations had accomplished nothing, plaintiff’s counsel wrote to defendant’s counsel on March 29, 1963: “ * * * The only thing that will really satisfy us in this case is if we void the deal and you give us back our escrow money, or you furnish us with a company that will write title insurance on this property.” At the trial the court excluded that letter, but we deem that ruling to have been erroneous and we consider the letter here. The court obviously took the view at that time that the matter of title insurance was not relevant. In defendant’s answer, however, it had pleaded that plaintiff had agreed to perform the contract if defendant would “furnish him with a company that would write title insurance on the property,” and that defendant had done so. After the exclusion of the above letter defendant made an offer to prove the above statement of plaintiff’s counsel and further to prove that a title insurance company had not only offered insurance on the property but had actually issued a title policy, defendant having paid for the title examination and the policy. The court made no specific ruling on the offer, but did not rescind its prior ruling on the letter. It was then shown by oral evidence that counsel for the respective parties had orally discussed the question of title insurance; further testimony that defendant had agreed that it would try to get title insurance and that it did later get title insurance, was admitted solely upon the claim of defendant for the recovery of $55.40 paid' for the title insurance examination, as asserted in its counterclaim. To this limited purpose the further testimony was: that defendant applied for title insurance, paid $55.40 for the title examination and miscellaneous expense, and that a title policy was actually issued in the name of the School District; that it could not be issued in plaintiff’s name because he had refused to accept a deed. A title policy was physically produced at the trial. The attitude of plaintiff’s counsel apparently was that a title policy in the name of the School District did not comply with his offer, and that he had never “authorized” a title policy in its name. The time when defendant had proffered the title policy (or title insurance) to plaintiff was left unclear, and no effort was made to ascertain the exceptions (if any) of the policy.

The court should have heard the evidence concerning title insurance upon the merits of plaintiff’s claim and the defenses thereto, as well as upon the entire counterclaim, including the claim for specific performance. We would so consider it, but the evidence is lacking in certain essentials. Plaintiff’s counsel' made an offer to complete the purchase and sale by a modification of the original contract, if defendant would “furnish” a company that would write title insurance. This was an offer to effect a novation. The decisive question is whether defendant accepted that offer; the offer required an act of acceptance, not merely a promise. Daggwett v. Kansas City Structural Steel Co., 334 Mo. 207, 65 S.W.2d 1036; 66 C.J.S. Novation §§ 4b, 5; Dorsey v. Strand, 21 Wash.2d 217; 150 P.2d 702, 706; and an offer to modify a contract may be accepted by performance. Durasteel Co. v. Great Lakes Steel Corp. (CA 8), 205 F.2d 438. Here defendant did act. According to the evidence, it applied for and procured a title insurance policy; the objection by reason of the fact that the policy was issued in the name of the School District is a mere technicality; if a title insurance company is willing to insure one owner it would certainly be willing to insure the succeeding owner upon the execution and delivery of a sufficient deed. The basic question for decision, which was never reached, was whether title insurance was offered which validly insured against the alleged defect arising from a possibility of reversion created by Burnam’s deed, or whether that risk was excepted. Counsel attempt to go outside the record, saying that it was not excepted, — but these statements do not supply a lack of evidence. If defendant produced and tendered' within an appropriate time an insurer shown to be willing to insure the title generally, including coverage of the supposed defect (by an issued title policy or other acceptable proof), then a novation was completed, and plaintiff should have been required to perform. If any fee was or would be required in order to transfer the title insurance to plaintiff’s name, the expense may be taxed against the defendant, if deemed proper. The evidence on this vital feature of the case was insufficient; perhaps this was partly due to the trial rulings limiting the evidence and the purpose for which it would be received, but it appears also to have been due in part to a rather marked degree of hostility between counsel which has been apparent throughout the negotiations, the trial, and even here; this has tended to obscure the real issues, and it has certainly not benefited the litigants or the courts.

The trial court refused plaintiff any recovery and ordered specific performance under the counterclaim. We cannot affirm the judgment on this evidence, for we disagree with the conclusion of the trial court that the quiet title decree was final and conclusive when rendered, and the evidence was insufficiently developed for a determination of the title insurance issue. We therefore reverse the judgment, but we remand the case for retrial in order that the issue concerning title insurance may be properly developed, as indicated in this opinion. This we may do within our discretion.

Reversed and remanded. It is so ordered.

All of the Judges concur.

      . All statutory references are to RSMo 1959, V.AM.S.

      . u* * * so iong as the same shall be used as a site for a school house in said distriet, and used as such, and no longer. Whenever it fails to be so used, then to revert to said Burnam. * * *”


author: HOUSER, Commissioner.

text:
    STATE of Missouri ex rel. Gordon R. BOYER, Prosecuting Attorney of Barton County, Missouri ex inf. Robert Forst, Gertrude Forst, Frank Morey, Rosa Morey, G. E. Brinkerhoff, and Dorothy Brinkerhoff et al., Respondents, v. Max WHITTLE, Glenn Beer, Leonard McCall, Delbert Webb, True Medlin, Jr., Oscar Clyman, Members of the Golden City, Missouri School Board, R-6, Appellants.
    No. 51441.
    Supreme Court of Missouri, Division No. 1.
    April 11, 1966.

      Gordon R. Boyer, Lamar, Ewing, Ewing, Ewing, Carter & Wight, Nevada, for respondents.
    Frieze & Crandall, Carthage, for appellants.
   HOUSER, Commissioner.

Quo warranto proceeding against the members of Golden City, Missouri, School Board, R-6, for a judgment of ouster for usurping and unlawfully holding the offices of School Directors of Glendale School District No. 59. The trial court heard the evidence, found for relators, issued its writ of quo warranto, adjudged Whittle, et al. to be usurpers, ousted them and ordered the return of the books, papers, records, money and property of the Glendale district to its board of directors. The ousted directors have appealed. This court has appellate jurisdiction since this proceeding involves “title to [an] office under this state.” Art. V, § 3, Constitution of Missouri 1945, V.A. M.S.; State ex inf. Stipp ex rel. Stokes Mound School Dist. No. 7 v. Colliver, Mo. Sup., 243 S.W.2d 344.

The information in quo warranto sought ouster on the basis of the invalidity of a special election called for the purpose of voting on the annexation of the Glendale district by the Golden City district, under § 165.300 RSMo 1959, V.A.M.S. the infirmity allegedly existing because the notices of election were posted 14 days before the date of the election, not 15 days as required by then-applicable § 165.200 RSMo 1959, V.A.M.S.

On this appeal the ousted directors’ first point is that the court erred in its ruling that the election was void because “it was established by the evidence and clearly demonstrated that the election results would have been no different * * * had the statute concerning notice * * * been literally and strictly complied with.”

Thirty-four electors resided in the district on the date of the election, March 27, 1964. Thirty-one of them cast ballots. Sixteen voted for annexation; fifteen voted against. Two of the thirty-four (the Law-sons, tenants of Frank Morey) did not vote on March 27 because on that date they had lived in the district only twenty days. Re-lators pleaded that the election was called for April 8 but thereafter by a 2-1 vote the date was advanced to March 27, “to prevent votes being cast by two persons known to be opposed to annexation and who were not qualified to vote on March 27th because of residence, but who would have been qualified to vote on April' 8th; that there was another qualified voter opposed to annexation who might have been able to vote in the election on April 8th but could not appear on March 27th.” The “two persons” were Mr. and Mrs. Lawson. Mr. Lawson testified that he moved into the district on March 7, did not vote in the March 27 election, but had the election been held April 7 he would have voted against the annexation. Mrs. Lawson testified that if the election had been held on April 8 she would have voted. When asked how she would have voted, for or against annexation, an objection was sustained, and an offer of proof was made that she would have voted against. Relators do not deny that the Lawsons were ineligible to vote on March 27. In their brief they say that the testimony “would indicate” that the election was moved up solely for the purpose of preventing their voting, but they did not allege or prove that the Lawsons were fraudulently deprived of their right to vote. Relators offered to prove that the president of the board made a statement at the meeting at which the date of election was advanced to March 27 that if the vote was held on April 7 or 8 “Frank Morey’s renter [Lawson] would then be qualified to vote and we don’t want them to vote” but they defend the action of the trial court on the ground of improper notice, not on the ground that the election was fraudulently held on the advanced date or that opponents of annexation were fraudulently deprived of the right to vote. This accounts for thirty-three of the thirty-four electors. The thirty-fourth and last was Don Kaderly, a 21-year-old man who claimed his residence in the district at the home of his parents but who was living and working in Kansas City and not physically present in the district during March, 1964 except for a 24-hour period one weekend approximately one week before the election. If the notices had been posted on March 12 when they should have been posted instead of March 13 when they were actually posted, Kaderly would have been none the wiser because he was not physically present in the county on March 12 and therefore could not and would not have seen them. Apparently he did not see the notices on the occasion preceding the election (around March 21) when he spent a day and night with his parents. He testified that he had no knowledge of the election until six months after it was held. There is no proof that if Kaderly had known about the election he would have been there to vote. That this is improbable appears from his answer (“It is hard to say”) when asked the question, and from the fact that he was working in Kansas City, had never voted in any election, and as far as this record shows had no particular interest in the issue submitted. Kaderly was permitted to testify, over objection, that if he had been able to vote in the election he would have voted against annexation.

The election of March 27, 1964 was a special election. Generally, statutory provisions as to notice of special elections are mandatory, must be strictly followed, and failure to properly call a special election will invalidate it. 29 C.J.S. Elections § 72, pp. 164, 165; State ex inf. Stipp ex rel. Stokes Mound School Dist. No. 7 v. Colliver, Mo.Sup., 243 S.W.2d 344; American Legion Phillips Post v. City of Malden, Mo.App., 330 S.W.2d 189, and authorities cited, 1. c. 190. A special election, however, will not be vitiated by failure to comply strictly with the statutory requirements with respect to the giving of notice where the electors were in fact informed of the time, place and purpose of the election and generally voted on the question submitted; where it is not shown that the electors did not participate in the election because of lack of notice or knowledge or that a different result would have obtained if the full statutory notice had been given. 29 C.J.S. Elections §§ 72, 73; Colliver and Malden cases, supra.

In this case there was a unanimous turnout of all qualified electors living in the district. Where all of the qualified and eligible voters living in a district come to the polls and cast their ballots the object of notice (to afford the voters knowledge of fact, time and place of a coming election and an opportunity to present themselves at the polls) is attained, the law is satisfied and the legality and efficacy of notice becomes immaterial. The people, once having freely spoken at a fair election, are not to be deprived of their decision because of mere irregularities caused by the incompetence or inadvertence of some official. American Legion Phillips Post v. City of Malden, supra; State ex inf. Mooney ex rel. Stewart v. Consolidated School Dist. No. 3, Mo.App., 281 S.W.2d 511; Wood v. City of St. Joseph, 238 Mo.App. 1212, 186 S.W.2d 212.

The vote was 16-15 in favor of annexation. One additional vote cast against annexation would have resulted in a tie vote, in which event the proposition would not have carried. The election is not to be upset, however, because one qualified and eligible elector, a legal resident of the district living temporarily outside the district, who did not vote, testified that if present he would have voted against annexation. There was no proof that if Don Kaderly had been notified of the election he would have been present; nothing to show that he would have left his work and made the trip from Kansas City to the district to cast his ballot. Even if this had been proved the court could not properly accept and give effect to this elector’s post-election, in-court declaration that he would have voted against annexation. His testimony that he would have so voted should not have been received in evidence over defendants’ objection. The uncertainty and danger of trying to ascertain and give effect to the post-election declarations of electors as to how they would have marked and cast their ballots if they had voted is well pointed out in the quotation from Pennington v. Hare, 60 Minn. 146, 62 N.W. 116, in State ex inf. Walker ex rel. Wagster v. Consolidated School Dist. 4C, Dunklin County, 240 Mo. App. 91, 213 S.W.2d 271, 275.

In case of reversal of the judgment relators ask for remand to give them an opportunity to plead and prove that they were unlawfully deprived of a right to have an election on April 7 on a question of change of boundaries of the Glendale school district. Unless it is made to appear that the parties asking for a remand for this purpose may be entitled to relief not fully developed by the pleadings and evidence we will not thus exercise our discretion. Relators have not advanced or developed a theory sufficiently definite to indicate the nature of their claim or a basis upon which they might be able to establish a right to relief in the event of such a remand. In any event, since we are upholding the annexation voted on March 27 (the result of which was to eliminate the Glendale school district as an entity), any question about the right to hold an election in that district on a subsequent date becomes moot.

Judgment reversed and cause remanded with directions to set aside the judgment and enter judgment denying the writ of quo warranto, establishing the results of the election of March 27, 1964 and upholding the title of the ousted directors to the offices in question.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . Amended Laws of Mo.1963, p. 200, § 3-43, pp. 341 and 342, renumbered § 162.441, MoJtev.St.1965 Cumulative Supplement.

      . Amended Laws of Mo.1963, p. 200, § 3-74, renumbered § 162.741, Mo.Rev.St. 1965 Cumulative Supplement.