author: MAUGHMER, Commissioner.

text:
    NEBRASKA HARDWARE MUTUAL INSURANCE COMPANY, a Corporation, Appellant, v. Herbert BROWN, Administrator of the Estate of Lawrence W. Brown, Deceased, and Brown Manufacturing Company, Incorporated, and Zenith Corporation, Respondents.
    No. 23513.
    Kansas City Court of Appeals. Missouri.
    March 5, 1962.
    Floyd L. Sperry, Jr., Clinton, for appellant.
    Poague, Brock & Wall, Barkley Brock and Julius Wall, Vance Julian, Clinton, for respondents.
   MAUGHMER, Commissioner.

This is an action based upon a subrogation claim for $2,015.09, by plaintiff Nebraska Hardware Mutual Insurance Company against Herbert Brown, Administrator of the estate of Lawrence W. Brown, deceased, Brown Manufacturing Company, Inc., and Zenith Corporation. Defendant Brown’s motion to dismiss plaintiff’s petition as to him was sustained on the ground that the claim was barred by Sections 473.-360 and 473.367, V.A.M.S. of the Probate Code. Plaintiff has appealed. The sole issue presented is whether plaintiff’s action is barred by these nine months limitations provisions of the Probate Code of 1955.

Lawrence W. Brown, a resident of Henry County, Missouri, died on April 4, 1960. It was stipulated that Letters of Administration on his estate were issued by the Probate Court of Henry County to the defendant Herbert Brown on April 18, 1960; that the first publication of the Letters was on April 21, 1960; that this lawsuit was filed in the Circuit Court of Henry County on January 18, 1961; that the petition (or copy) in this lawsuit was filed in the probate court on January 18, 1961; that service (of the petition and summons) was had upon defendant Herbert Brown on January 30, 1961, and that January 21, 1961, was nine months after (the date) first publication of the notice of Letters of Administration.

Wilbur Schmidt, sheriff of Henry County, was called as a witness for plaintiff. He testified that on January 18, 1961, he received a copy of the petition and summons in this lawsuit for the defendant administrator. He said he looked for defendant, went to his house, made inquiries as to his whereabouts, but was unable to find him until January 30, 1961, when service was made.

The defendant Herbert Brown testified .that he was in Henry County during January, 1961 until the 17th, when he went to New Orleans, and returned to Henry County on January 29, 1961.

Section 473.360, subds. 1, 2 provide:

“1. Except as provided in sections 473.367 and 473.370, all claims against the estate of a deceased person, other than costs and expenses of administration and claims of the United States and tax claims of the state of Missouri and subdivisions thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, which are not filed in the probate court within nine months after the first published notice of letters testamentary or of administration, are forever barred against the estate, the executor or administrator, the heirs, devisees and legatees of -.the decedent. * * *.
“2. Unless written notice of actions Instituted or revived under sections 473.363 or 473.367 is filed in the probate court within nine months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the executor or administrator out of any assets being administered upon in the probate court or from any distributee or other person receiving such assets.”

Section 473.367, V.A.M.S., as amended in 1959 (Laws of Mo.1959, S.B.Mo. 305 Supp., V.A.M.S.) reads:

“Any action commenced against an executor or administrator, after death of the decedent, is considered a claim duly filed against the estate from the time of serving the original process on the executor or administrator, and the filing of a written notice in the probate court of the institution of such action”.

On appeal plaintiff presents two and only two assignments of error. He says first it is a cardinal rule of statutory construction that a legislative act must be construed according to the purpose of the enactment, that the purpose of the code was to shorten the time for administration, facilitate payment of claims and distribution, and that the procedure followed by plaintiff here is within such statutory provisions. His second assignment is that — “The trial court erred in refusing to construe (these sections) so as to narrow the general language to confine the application of said statutes to factual situations where their enforcement will promote the purposes of such enactments by increasing the assets or expediting the payment of creditors or the distribution of assets.” While these assignments are essentially simple conclusions, we shall, nevertheless, consider them.

Plaintiff does not contend that he has complied completely or precisely with the specific prerequisite statutory requirements, nor does he offer any excuse or justification therefor except that service was secured as promptly as possible after the suit was filed. Rather he asks that we interpret the statutes not as they are plainly written, but so as to accomplish the “general purposes”, even if by so doing we nullify a part of the actual provisions therein specifically spelled out. No ambiguities in the statutory language are pointed out nor do we find any. Under such circumstances the function of the courts is not to rewrite, modify or interpret the statute, but rather to apply it.

Appellant’s brief contains numerous quotations taken from cases in various jurisdictions construing statutes. These include expressions that all laws should be given “a sensible construction”, should avoid “injustice, oppression or absurdity”, should ■“harmonize with reason”, and that “the reasons of the law should prevail over its letter”. We are not in disagreement with these general declarations, but none rule this case especially when we consider the purposes of these limitations statutes, restricted as they are, to claims against the estates of deceased persons.

Just less than two years ago our Supreme Court en banc in North v. Hawkinson, Executrix, 324 S.W.2d 733, 736, 740, 741, 745, reviewed these statutes and considered their application quite fully. The court declared the general purposes to be:

“Apparent purposes of the code are to provide a speedy method for administering a decedent’s estate, to establish a time after which claims are forever barred against the estate, the executor or administrator, and the distributees, and to broaden the jurisdiction of probate courts to accomplish said purposes.
A discussion of some features of the Code may be found at 23 Mo.L.R. 113”.

In this North case plaintiff contended the suit was equitable, and that his suit, filed in the circuit court against the administrator, was sufficient. The opinion ruled otherwise and concluded:

“This is not an action for the recovery of specific personal property. His action is barred by his failure to comply with the nine months nonclaim provisions of section 473.360, ¶ 2 or section 473.367 (quoted supra), relating to ‘all actions’ or ‘any action,’ respectively, instituted against an executor or administrator after the death of the decedent. This conclusion finds support in cases under the prior code, (citing cases) ”. ,

The separate concurring opinion of Storck-man, P. J., reached the same result with this final statement:

“The nonclaim statutes of the probate code apply to the present action and it is barred because it was not filed within the time and manner provided by the nonclaim statutes”.

In Clarke, Gdn. v. Organ, Administratrix (one judge dissenting) 329 S.W.2d 670, the Supreme Court en banc held that failure to comply with nonclaim statutes in regard to filing of claims in the probate court, or filing in the probate court of notice of suit or a copy of process and return in an action instituted in the circuit court, barred the wrongful death action, even though such an action is generally governed by its own period of limitations.

In Smith v. Maynard, Administratrix, 339 S.W.2d 737, the Supreme Court again en banc but with three judges dissenting, applied these nonclaim statutes even though suit was filed in the circuit court against the administratrix within nine months and even though the administratrix had appeared therein, filed answer, taken a change of venue, and participated in the taking of depositions, ruling that, nevertheless, unless the “claim” had been timely filed in the probate court a motion to dismiss was properly sustained.

As heretofore pointed out, Section 473.-367 of the nonclaim statute of the probate code was amended in 1959. Prior to the 1959 amendment the statute declared that “any action * * * is considered a claim duly filed against the estate from the time of serving the original process on the executor or administrator and the filing of a copy of the process and return of service thereof in the prohate court”. (Italics added.) This statute, as amended in 1959, and hence applicable to our case reads:

“Any action commenced against an executor or administrator, * * * is considered a claim duly filed against the estate from the time of serving the original process on the executor or administrator, and the filing of a written notice in the probate court of the institution of such action”. (Italics added.)

Under these provisions as originally drawn, plaintiff would not be in compliance because (1) Service of process was not within nine months after publication of the first notice of Letters and (2) a copy of the process and return of service thereof was not timely filed in the probate court. Under the 1959 amendment, even if the provision “and the filing of a written notice in the probate court of the institution of such action” were construed to have been met by filing a copy of the petition before service was had thereon, still plaintiff is not - in compliance because the administrator was not served within the required nine months.

In Clarke, Gdn. v. Organ, Admrx., supra, 329 S.W.2d p. 673, the court said:

“These sections are simply a continuation of the statutory method of liquidating claims in the circuit courts, but subject to specific limitations. Taking these statutes at their face value, they bar (or abate) all claims, whether filed in the probate court or instituted in the circuit court, unless the claim or the required notice of suit or copies of the process and return are timely filed in the probate court”.

Under the Supreme Court rulings to which we have referred herein and under the provisions of the nonclaim statutes, the action of the trial court in sustaining defendant-administrator’s motion to dismiss was correct.

The judgment is affirmed.

SPERRY, C., not participating.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: STONE, Presiding Judge.

license: Public Domain

text:
    Jack R. MOORE, George T. Glozier and Mary Ida Glozier, Plaintiffs-Appellants, v. George W. (Son) RONE, Jr., Dora Rone, Donald Rone and Cletus Eugene Rone, Defendants-Respondents.
    No. 8002.
    Springfield Court of Appeals. Missouri.
    March 16, 1962.

      Raymond A. Klemp, Caruthersville, for plaintiffs-appellants.
    Ford & Ford, Kennett, for defendants-respondents.
   STONE, Presiding Judge.

Averring that on November 18, 1957, “they (plaintiffs) were the owners of and legally entitled to the possession of” certain land described by metes and bounds and identified as an island “containing 550 acres, more or less,” in the Mississippi River and within the boundaries of Pemis-cot County, Missouri, but alleging that defendants entered into possession of the island on or about June 2, 1958, and thereafter unlawfully withheld possession thereof to plaintiffs’ damage in the sum of $4,000 [Rule 89.04, Sec. 524.060], plaintiffs instituted this action in ejectment in the Circuit Court of Pemiscot County on September 18, 1958. In due time, defendants moved to dismiss the petition with prejudice for the reason, among others, that the court had no jurisdiction over the subject matter of the action. As subsequently developed in an extended hearing upon this motion in the Circuit Court of Mississippi County, to which the cause was transferred on change of venue, defendants’ contention was (as it still is) that'the island in controversy formed about 1939 on the Tennessee side of the middle of the main navigable channel of the Mississippi River, and that such island then was situate, and at all times thereafter remained, in the State of Tennessee and wholly outside Pem-iscot County, Missouri. So finding, the trial court sustained defendants’ motion and dismissed the petition with prejudice.

Plaintiffs appealed to the Supreme Court because, in the oversimplified language of their brief, “the title of land is involved.” Art. 5, Sec. 3, Mo.Const. of 1945, 2 V.A.M.S. This was nothing more than a bare conclusion, utterly insufficient and equally ineffective as a jurisdictional statement. Rule 83.05(b); Schoenhals v. Pahler, Mo., 272 S.W.2d 228, 229(1) ; Jones v. Williams, 357 Mo. 531, 532, 209 S.W.2d 907, 908(1). Ejectment is a possessory action [Wood v. Gregory, Mo., 155 S.W.2d 168, 170(3), 138 A.L.R. 142; Levee Dist. No. 4 of Dunklin County v. Small, Mo.App., 281 S.W.2d 614, 615(1)]; and, “in an ordinary, simple, straight action in ejectment in which no title relief is sought or granted” [Cantrell v. City of Caruthersville, 359 Mo. 282, 290, 221 S.W.2d 471, 476], title to real estate is involved incidentally or collaterally but not directly in an appellate jurisdictional sense. Thus, by order dated April 21, 1961, the Supreme Court transferred the cause to us.

At the threshold, we are confronted with defendants’-respondents’ motion to dismiss the appeal for the alleged failure of plaintiffs’-appellants’ brief to comply with the minimum essentials detailed in Rule 83.05. This motion is not without merit. Plaintiffs’ statement of the facts is incomplete and inaccurate in important respects and falls far short of the “fair and concise statement” without argument contemplated by subdivisions (a) (2) and (d) of Rule 83.05. Three averments of error appear beneath the caption “Points Relied On For Reversal” but without citation of authorities thereunder as required by subdivision (a) (3) of Rule 83.05. In the final section captioned “Brief And Citation Of Authorities,” plaintiffs set out four abstract statements of law with cases cited thereto but “without showing how they are related to any action or ruling of the Court.” Rule 83.05, subd. (e). There is no “argument” which, as subdivision (a) (4) of Rule 83.05 provides, “shall substantially follow the order of ‘Points Relied On.’ ” In the entire brief, we find only one specific page reference to the transcript on appeal. Rule 83.05, subd. (d). In short, plaintiffs’ brief affords scant evidence that it was prepared with Rule 83.05 in mind, and dismissal of the appeal for flagrant violations of that rule would be justified and supported by abundant authority. However, mindful that “our primary duty is to litigants rather than to counsel who-represent them” [Ambrose v. M. F. A. Cooperative Ass’n of St. Elizabeth, Mo., 266 S.W.2d 647, 650; Songer v. Brittain, Mo.App., 272 S.W.2d 16, 18], and believing that in the interests of justice this appeal should be resolved on its merits [Rule 83.09; Sebree v. Rosen, Mo., 349 S.W.2d 865, 870 (2)], we have concluded, albeit with some hesitancy, to overrule defendants’ motion to dismiss the appeal, still confessing our wonderment that capable counsel so frequently assume such not inconsiderable but obviously unnecessary risks in dealing with the interests of their clients. Thompson v. Jenkins, Mo., 330 S.W.2d 802, 803; Steckler v. Steckler, Mo.App., 293 S.W.2d 129, 131.

Plaintiffs’ theory of the case has been and is that the island in controversy (hereinafter sometimes called Coal Barge Island, the name in which it was entered on the records of Pemiscot County) became and was the property of Pemiscot County [Secs. 241.290 and 241.300]; that, after the island had been surveyed, Pemiscot County sold it to plaintiff Moore for $687.50, i. e., $1.25 per acre for the computed area of 550 acres [Sec. 241.160], and conveyed the island to Moore by patent executed under date of November 18, 1957; and that, by quitclaim deed of even date, plaintiff Moore (with his wife, Dama) conveyed an undivided one-half interest in the island to plaintiffs, George T. Glozier (the then County Surveyor of Pemiscot County who had surveyed the island prior to issuance of the patent) and Mary Ida Glozier, his wife. Of course, if Coal Barge Island formed, and at all times thereafter remained, in the State of Tennessee, it never belonged to the State of Missouri, title thereto was not granted and transferred to Pemiscot County by Section 241.290 or Section 241.-300, Pemiscot County had no power to sell and convey the island under Section 241.-310, and the patent issued by Pemiscot County to plaintiff Moore conveyed no interest in the island. Conran v. Girvin, Mo. (banc), 341 S.W.2d 75, 79, 88(13); Akers v. Stoner, 319 Mo. 1085, 1089, 7 S.W.2d 695, 696; Jacobs v. Stoner, 319 Mo. 1093, 1104, 7 S.W.2d 698, 703. And, with actions in ejectment being local to the state in which the land lies [21 C.J.S. Courts § 46, p. 53; 18 Am.Jur., Ejectment, § 66, loc. cit. 62] and with Section 508.030 plainly imposing the mandatory requirement [March v. Gerstenschlager, Mo., 322 S.W.2d 743, 744(1), and cases there cited] that “(s)uits for the possession of real estate . shall be brought in the county where such real estate, or some part thereof, is situated,” neither the Circuit Court of Pemiscot County in the first instance nor the Circuit Court of Mississippi County on change of venue had jurisdiction to entertain and determine an action in ejectment involving Coal Barge Island, if it was in the State of Tennessee. Accordingly, defendants’ motion to dismiss plaintiffs’ petition raised and depended upon the crucial issue as to whether Coal Barge Island was in the State of Tennessee; or, as plaintiffs’ counsel put it at the hearing, “whether it (the island) is in Missouri or Tennessee is the binding thing.”

Since admittance of Missouri into the Union, the state’s eastern boundary has been “the middle of the main channel” of the Mississippi River [Enabling Act of Congress, March 6, 1820, Chap. 22, 3 U.S. Stat. 545, 4 RSMo 1959, p. 4781, 1 V.A.M.S. 63; Chap. 7, 3 V.A.M.S. 237; Mo.Const. of 1875, Art. 1, Sec. 1, 1 V.A.M.S. 167] and, of course, that has been and is the eastern boundary of Pemiscot County. Secs. 46.127 and 46.010. When “the middle of the main channel” of a navigable river is designated as the boundary between two states, the quoted phrase refers to and means “the middle of the main navigable channel,” this construction serving the important purpose of preserving for each state the free and untrammeled use of the navigable portion of the stream as a highway of commerce; and, if there he more than one channel at any given point, “the main navigable channel” is “the one usually followed” [Iowa v. Illinois, 147 U.S. 1, 13, 13 S.Ct. 239, 243, 37 L.Ed. 55, 59] or “the middle, or deepest, or most navigable channel.” (All emphasis herein is ours.) Louisiana v. Mississippi, 202 U.S. 1, 49, 26 S.Ct. 408, 421, 50 L.Ed. 913, 930; Whiteside v. Norton, 8 Cir., 205 F. 5, 9, 45 L.R.A.,N.S., 112, appeal dismissed 239 U.S. 144, 36 S.Ct. 97, 60 L.Ed. 186.

In cases of this character, not only the courts but also the litigants lean heavily upon official maps and documents of governmental agencies, which, although not conclusive, usually record, preserve and reveal the vagaries of navigable streams more accurately and more reliably than the frail, fallible memories of ofttimes partisan witnesses. So it is that, with no suggestion of inaccuracy in any of the numerous maps and documents of the War Department Corps of Engineers (hereinafter referred to as the Engineers) and of the Mississippi River Commission (hereinafter referred to as the Commission) received in evidence in the instant case, we think that the material and determinative facts were established by those exhibits beyond reasonable room for argument. Coal Barge Island, spewed out of the maw of the waters of the mighty and mysterious Mississippi, first appeared in 1939 when, as plaintiffs’ evidence disclosed, an “ice gorge” hung on the island. Engineers maps dated 1933 and December 1937 showed no such island; but the January 1939 map platted this island as then being approximately one and one-half miles in length, more than one-half mile in width at its broadest point, and about equidistant from the Missouri bank to the northwest and from the Tennessee bank to the southeast, and as lying in the “toe” of a sharp horseshoe curve known as Little Prairie Bend in which the river enters the bend flowing in a northwesterly direction and leaves it flowing in a southeasterly direction. (In the interest of simplicity and clarity, we hereinafter refer to the Missouri bank as being west of Coal Barge Island, to the Tennessee bank as being east thereof, and to the river as flowing to the west and to the east of the island.)

The January 1939 map also showed the “channel line” of the Mississippi as running on the west side of the newly-formed island, that is, between the island and the Missouri bank, and thus located the island on the Tennessee side of the “channel line.” Plaintiff George T. Glozier, who qualified himself as being “county surveyor and engineer for the levee district” at the time of hearing and as having “worked about five years for the (Federal) government” with about three years’ experience in “the dredging section” of the Corps of Engineers, testified positively that the “channel line” on the Engineers maps “shows the navigation line or the navigable channel”; and plaintiffs’ counsel repeatedly stated the same thing, e. g., “the channel is indicated or marked by the Engineers as the navigable channel, marked off for the boats and the transportation up and down the river” —“that is the navigation channel.” Engineers maps dated January 1945 and January 1950 and a “before dredging survey” of the Engineers in May 1950 alike fixed the “channel line” on the west side of Coal Barge Island and thus continued to show this island on the Tennessee side of the navigable channel.

On August 10 and 11, 1950, the Engineers dredged on the east side of Coal Barge Island, i. e., between the island and the Tennessee bank, and thereby changed the navigable channel from the west side of the island to the east side thereof, thus for the first time placing the island on the Missouri side of the navigable channel. Plaintiffs’ witness Lee, a United States Coast Guard lamplighter on the Mississippi since 1948 who had been on the island “every other day from 1948 to 1958,” remembered the dredging operation. This change in the navigable channel was recorded in and promulgated by Navigation Bulletin No. 51 issued by the Engineers on August 11, 1950; and all subsequent maps and surveys, including a “general dredging survey” of the Engineers in May 1951, Engineers maps dated September 1951, 1953, 1954 and 1957, a “general hydrographic survey” by the Engineers in March 1957, and Commission maps dated September 1951 and 1952, located the “channel line” or navigable channel on the east side of Coal Barge Island.

Plaintiffs adduced oral evidence that, during the period from the formation of Coal Barge Island in 1939 to the dredging by the Engineers in August 1950, some boats and barges were able, in times of high water, to hold to the inside of Little Prairie Bend and to pass on the east side of the island. Cf. Akers v. Stoner, supra, 319 Mo. loc. cit. 1092, 7 S.W.2d loc. cit. 698. However, plaintiffs’ witness Lee readily conceded that "in low water the) all went around where it says channel line,” i. e., on the west side of the island; and when, on cross-examination, the blunt inquiry was put to him, "Prior to 1950 when they (the Engineers) changed the channel . . . the channel of the river was between the island and the State of Missouri, wasn’t it,” Lee quickly agreed, “The main channel, yes, sir.” In short, the record before us permits of no conclusion other than that Coal Barge Island formed on the Tennessee side of the middle of the main navigable channel of the Mississippi and that such main navigable channel continued to run on the west side of the island, i. e., between the island and the Missouri bank, until the Engineers dredged on the east side of the island in August 1950 and thereby changed the main navigable channel to that side. Thus, Coal Barge Island formed as a part of the State of Tennessee, and whoever then had title to the submerged land upon which it arose became the owner of the island. Conran v. Girvin, supra, 341 S.W.2d loc. cit. 81(7), and authorities there cited. We have neither legal license nor factual foundation to pursue an inquiry under the statutory and case law of our sister state as to the ownership of this Tennessee island. Suffice it to say that, when the island formed, title thereto could not have vested in the State of Missouri or, by grant from the State [Secs. 241.290 and 241.300], in Pemiscot County. Hecker v. Bleish, 319 Mo. 149, 169, 3 S.W.2d 1008, 1016.

The question remains whether, when the main navigable channel of the Mississippi was changed from the west side of Coal Barge Island to the east side thereof by the dredging operation in August 1950, the Missouri-Tennessee boundary likewise changed and the island then became a Missouri island, with title then vesting in Pemiscot County under Section 241.-300. Where the boundary between two states is found in running water, changes in such boundary are determined by application of the principles thus succinctly stated (as not in dispute)- in Kansas v Missouri, 322 U.S. 213, 215, 64 S.Ct. 975, 976-977, 88 L.Ed. 1234, 1237(2): “ . . . when changes take place by the slow and gradual process of accretion the boundary moves with the shifting in the main channel’s course,” whereas “a sudden or avulsive change in that course does not move the boundary, but leaves it where the channel formerly had run.” Or, as otherwise put: “Accretion, no matter to which side it adds ground, leaves the boundary still the center of the channel. Avulsion has no effect on boundary, but leaves it in the center of the old channel.” Nebraska v. Iowa, 143 U.S. 359, 361, 12 S.Ct. 396, 397, 36 L.Ed. 186, 188; Missouri v. Nebraska, 196 U.S. 23, 35, 25 S.Ct. 155, 157, 49 L.Ed. 372, 375; State ex inf. Mansur v. Huffman, 318 Mo. 991, 995, 2 S.W.2d 582, 583(1).

It is true that the change in the main navigable channel from the west side of Coal Barge Island to the east side thereof in August 1950 resulted from the dredging operation and thus from an artificial, rather than a natural, cause. But, the change in channel was, for that reason, no less sudden and avulsive in character; and logic compels, and the authorities support, the conclusion that a sudden and avulsive change in the channel of a navigable stream works no change in a boundary found in that stream, regardless of whether such change in channel ensues from an artificial or a natural cause. Otherwise, the law would indulge and endorse a strange and anomalous doctrine under which human agencies, through men and machines, could accomplish boundary changes which the Almighty, through the forces of nature, could not. However, seeking to escape application of the doctrine of avulsion, plaintiffs here assert that the trial court erred “in finding that there was an avulsion.” Although this point is not developed in plaintiffs’ brief, it appears from their argumentative statement of facts that they refer (1) to the testimony of plaintiff George T. Glozier that “eventually” the main channel would have changed to the east side of Coal Barge Island anyway because the then main channel on the west side of the island was filling, and (2) to the testimony of witness Lee that “prior to ’51, the Monga-helia was held up with about 16 barges of steel” in the main channel on the west side of the island. It is exceedingly doubtful whether these isolated, inconclusive evi-dentiary fragments, thrown into the hearing hopper without explanation or elaboration, proved anything. Furthermore, it is crystal clear that, regardless of what otherwise might have happened “eventually,” the change in the main navigable channel occurred suddenly by reason of the dredging operation in August 1950, and not over a period of many months or years by a gradual decrease in the flow of water west of the island and by a corresponding increase in the flow east of the island. However, even if the change in the main navigable channel had been so wrought over a period of many months or years (with Coal Barge Island remaining stable in position as it has), such change in the main channel to the east side of the island would not have affected Tennessee’s jurisdiction over the island or moved the boundary line between Missouri and Tennessee to that side of the island.

Finally, plaintiffs urge error in dismissal of the cause, because (1) upon assessment of Coal Barge Island in Pemiscot ■County, defendants had, in 1955, 1956 and 1957, paid taxes on the island in Missouri, and (2) in connection with a survey procured by them in 1954, defendants had indicated an intention to claim the island as land accreted to that owned by defendants on the Missouri bank. We are supplied with nothing more than a naked statement •of the point, curiously unsupported by citation of authority in any section of the brief .and conspicuously undeveloped by argument. It is neither our function nor our duty to brief this point for counsel, or to speculate as to the undisclosed legal theory which counsel may have had in mind, or to formulate an argument in support thereof. Ambrose v. M. F. A. Co-operative Ass’n of St. Elizabeth, supra, 266 S.W.2d loc. cit. 651; Beeler v. Board of Adjustment of City of Joplin, Mo.App., 298 S.W.2d 481, 483, and cases there collected. The point ■should be and is treated as abandoned. However, we note in this connection that .defendants have made no claim of accretion in this case and that, with the parties agreeing and with the undisputed evidence establishing that the land in controversy formed as an island in the middle of the Mississippi River, there could have been no basis for any such claim as to -Coal Barge Island.

It may not be amiss to add that we recognize the firmly-established principle of public law (not mentioned in the briefs) “that, as between the states of the Union, long acquiescence in the assertion of a particular boundary and the exercise of dominion and sovereignty over the territory within it should be accepted as conclusive.” And, although we would not be so brash and presumptuous as to speak with respect to a boundary dispute (if any there may be) between the State of Missouri and the State of Tennessee, we think it not inappropriate to observe that, in following the quoted principle as between counties, our Supreme Court has pointed out that, in the cases in which the Supreme Court of the United States has announced and applied that principle, “the continued exercise of sovereignty over territory in dispute had been continued for long periods from 50 to 100 years or more” [Randolph v. Moberly Hunting & Fishing Club, 321 Mo. 995, 1006, 15 S.W.2d 834, 837], and to comment that the instant record indicates no attempted “exercise of dominion and sovereignty” by Pemiscot County over Coal Barge Island prior to 1955 (only some three years prior to institution of this action) when the island was assessed by and in that county.

On the evidence presented, we are satisfied that the learned circuit judge was justified in dismissing the cause for want of jurisdiction, and that the judgment of dismissal should be affirmed. It is so ordered.

McDOWELL, J., and HUNTER, Special Judge, concur.

RUARK, J., not sitting.

      . All references to rules are to the Supreme Court Rules of Civil Procedure, Y.A.M.R., and all references to statutes are to RSMo 1959, V.A.M.S.

      . City of St. Charles v. DeSherlia, Mo., 303 S.W.2d 32, 34(2); Townsend v. Lawrence, Mo., 262 S.W.2d 55; State ex rel. Edie v. Shain, 348 Mo. 119, 122, 152 S.W.2d 174, 176(2); Domyan v. Dornin, Mo.App., 348 S.W.2d 360, 361(2).

      . Walker v. Thompson, Mo., 338 S.W.2d 114, 116-118(6-9); Turner v. Calvert, Mo., 315 S.W.2d 118; Jacobs v. Stone, Mo., 299 S.W.2d 438; Markowitz v. University City, Mo.App., 335 S.W.2d 455; Wildermuth v. Fred Medart Mfg. Co., Mo.App., 330 S.W.2d 126; Lane v. Nixon, Mo.App., 326 S.W.2d 418; State ex rel. State Highway Commission v. Harrison, Mo.App., 311 S.W.2d 104; Parenteau v. Parenteau, Mo.App., 305 S.W.2d 723; Lewis v. Watkins, Mo.App., 297 S.W.2d 595; Beeler v. Board of Adjustment of City of Joplin, Mo.App., 298 S.W.2d 481, and numerous cases there collected.

      . Vogelsmeier v. Prendergast, 137 Mo. 271, 286, 39 S.W. 83, 87; Nothstine v. Feldmann, 298 Mo. 365, 374-375, 250 S.W. 589, 592(2, 3) ; Akers v. Stoner, 319 Mo. 1085, 1089, 7 S.W.2d 695, 696; Randolph v. Moberly Hunting & Pishing Club, 321 Mo. 995, 1014, 15 S.W.2d 834, 841; Warner v. Howard, 339 Mo. 923. 926, 98 S.W.2d 613, 614; Alaska Airlines v. Molitor, 43 Wash.2d 657, 263 P.2d 276, 280-281(4, 5).

      . Iowa v. Illinois, 147 U.S. 1, 13, 13 S.Ct. 239, 244, 37 L.Ed. 55, 59; Arkansas v. Tennessee, 246 U.S. 158, 170, 38 S.Ct. 301, 303, 62 L.Ed. 638, 646, L.R.A.1918D 258. See also Kansas v. Missouri, 322 U.S. 213, 214, 64 S.Ct. 975, 976, 88 L.Ed. 1234, 1236; City of St. Louis v. Rutz, 138 U.S. 226, 234, 247, 11 S.Ct. 337, 340, 345, 34 L.Ed. 941, 946, 950; State v. Keane, 84 Mo.App. 127, 131(1); 49 Am. Jur., States, Territories and Dependencies, § 20, p. 241.

      . Conran v. Girvin, Mo. (banc), 341 S.W.2d 75, 77; United States v. Romaine, 9 Cir., 255 F. 253, 254(1); Bost v. United States, 9 Cir., 103 F.2d 717, 721; Crow v. Johnston, 209 Ark. 1053, 194 S.W.2d 193, 196(5); Horne v. Howe Lumber Co., 209 Ark. 202, 190 S.W.2d 7, 9-10.

      . Whiteside v. Norton, 8 Cir., 205 F. 5, 45 L.R.A.,N.S., 112, appeal dismissed 239 U.S. 144, 36 S.Ct. 97, 60 L.Ed. 186; Arkansas v. Tennessee, supra, 246 U.S. loc. cit. 173, 38 S.Ct. loc. cit. 304, 62 L.Ed. 638, loc. cit. 647; Durfee v. Keiffer, 168 Neb. 272, 95 N.W.2d 618, 623-624; State v. Sause, 217 Or. 52, 342 P.2d 803, 826. See also cases involving accretions due to artificial conditions — Whyte v. City of St. Louis, 153 Mo. 80, 87, 54 S.W. 478, 480 (1); Tatum v. City of St. Louis, 125 Mo. 647, 653-654, 28 S.W. 1002, 1003(2); annotation 134 A.L.R. 467.

      . Kansas v. Missouri, supra, 322 U.S. loc. cit. 229, 64 S.Ct. loc. cit. 983, 88 L.Ed. 1234, loc. cit. 1244; Missouri v. Kentucky, 11 Wall. 395, 20 L.Ed. 116, 119; Commissioners of Land Office of State of Oklahoma v. United States, 8 Cir., 270 F. 110, 113-114(2), appeal dismissed 260 U.S. 753, 43 S.Ct. 14, 67 L.Ed. 497; Davis v. Anderson-Tully Co., 8 Cir., 252 F. 681, 685(4); Durfee v. Keiffer, supra, 168 Neb. 272, 95 N.W.2d loc. cit. 624(11); State v. Ecklund, 147 Neb. 508, 23 N.W.2d 782, 789-790(6); Courter v. Borough of Lincoln Park, 101 N.J.Eq. 572, 138 A. 99, 102.

      . Rule 83.05, subds. (a) (3) and (a) (4); Lansford v. Southwest Lime Co., Mo., 263 S.W.2d 564, 565(1); Merrick v. Bridgeways, Inc., 362 Mo. 476, 241 S.W.2d 1015, 1019(7); Warinner v. Nugent, 362 Mo. 233, 240 S.W.2d 941, 945(7), 26 A.L.R.2d 278; Lomax v. Sawtell, Mo.App., 286 S.W.2d 40, 43(5); Atkinson v. Coca-Cola Bottling Co., Mo.App., 275 S.W.2d 41, 46(5); Palmer v. Lasswell, Mo.App., 267 S.W.2d 492, 498(14); Wattson v. James B. Welsh Kealty & Loan Co., Mo.App., 266 S.W.2d 35, 37 (2). See also Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 386(13); Royal v. Thompson, Mo., 212 S.W.2d 921, 922(5).

      . Cooley v. Golden, 117 Mo. 33, 23 S.W. 100, 21 L.R.A. 300; Hahn v. Dawson, 134 Mo. 581, 36 S.W. 233; Moore v. Farmer, 156 Mo. 33, 56 S.W. 493; Hamburg Realty Co. v. Woods, Mo., 327 S.W.2d 138, 152. See also Gaskill v. Cook, Mo., 315 S.W.2d 747; Dumm v. Cole County, 315 Mo. 568, 287 S.W. 445; Benson v. Morrow, 61 Mo. 345, 351.

      . Louisiana v. Mississippi, 202 U.S. 1, 53, 26 S.Ct. 408, 423, 50 L.Ed. 913, 932; Maryland v. West Virginia, 217 U.S. 1, 43-44, 30 S.Ct. 268, 279, 54 L.Ed. 645, 658; Randolph v. Moberly Hunting & Fishing Club, supra, 321 Mo. loc. cit. 1006, 15 S.W.2d loc. cit. 837. See also Indiana v. Kentucky, 136 U.S. 479, 510, 30 S.Ct. 1051, 1054, 34 L.Ed. 329, 333; Virginia v. Tennessee, 148 U.S. 503, 523, 13 S.Ct. 728, 736, 37 L.Ed. 537, 544; Michigan v. Wisconsin, 270 U.S. 295, 319, 46 S.Ct. 290, 298, 70 L.Ed. 595, 605.


author: CROSS, Judge.

text:
    Charles NATION, Plaintiff-Respondent, v. Leon DRESNICK, Defendant-Appellant.
    No. 23413.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.
    Kuran, Freeman, Kuraner, Oberlander & Lamkin, George T. O’Laughlin, James W. Humphrey, Jr., Kansas City, for appellant.
    Harrington & Wurdack, Robert B. Wur-dack, Kansas City, for respondent.
   CROSS, Judge.

This action arose out of a rear end collision between a mail truck driven by plaintiff Charles Nation, and an automobile driven by defendant Leon Dresnick.

Defendant appeals from a jury verdict and judgment awarding plaintiff $3000.00 as damages for personal injuries sustained in the collision and against defendant on his ■counterclaim for damages to his automobile.

The following facts shown in evidence are sufficient for the purpose of our review: Prior to the collision, plaintiff was driving ■a United States mail truck south on Wy-.andotte Street in Kansas City, Missouri. After crossing the intersection of Wy-.andotte and 14th Street on a green light, he was forced to stop the mail truck behind some vehicles which had stopped in front ■of him. Plaintiff testified that he came to a normal stop with the rear end of the truck about 20 to 25 feet south of the intersection; that after he had been completely stopped for five or ten seconds he was “hit in the rear end”. Plaintiff stated that the street where the impact occurred was an average grade uphill, that the street was dry, and that his truck did not roll backward at ány time.

Defendant admitted that he was the driver of the automobile involved in the collision. He testified that he drove his vehicle up to and stopped behind plaintiff’s truck while it was standing; that his car was about 5 to 8 feet behind plaintiff’s truck, headed uphill. Defendant stated that within 3 or 4 seconds plaintiff’s truck rolled backward and struck his automobile while it was “definitely stopped”. He also testified that he had been stopped 20 seconds before the impact. It was defendant’s testimony that the street was dry.

Plaintiff’s case was submitted on his verdict-directing instruction (Instruction No. 1), which essentially told the jury that if they found that defendant negligently caused his automobile to run into the rear end of plaintiff’s truck and that thereby plaintiff was injured, their verdict should be for plaintiff. The instruction made no reference to contributory negligence on the part of plaintiff and submitted no issue on that question.

At defendant’s request, the trial court gave Instruction No. 7 (among others) which instructed the jury that their verdict .must be in defendant’s favor if they found that plaintiff was negligent (as set out in other instructions), and that such negligence (directly caused or) directly contributed to cause the collision.

Defendant first assigns that the trial court erred in giving plaintiff’s Instruction No. 1 because it directed a verdict for plaintiff without referring to the issue of plaintiff’s contributory negligence and without requiring a finding on that issue in favor of plaintiff — although (defendant claims) such issue was pleaded, supported by evidence and submitted to the jury by defendant’s Instruction No. 7.

It is now settled law in Missouri that in cases where the court gives a defendant’s instruction submitting his affirmative defense of contributory negligence, it is reversible error to give a verdict-directing instruction for a plaintiff which fails to refer to or negative his contributory negligence. See Moore v. Ready Mixed Concrete Company et al., Mo.Sup., 329 S.W.2d 14. In the cited case the Supreme Court admonished: “Cases to the contrary should no longer be followed”. The Moore case has since been followed by the Supreme Court in Losh v. Ozark Border Electric Cooperative, Sup.Ct, 330 S.W.2d 847, and Myers v. Buchanan et al., Mo.Sup., 333 S.W.2d 18, and by this court in Croney v. Pence, Mo.App., 346 S.W.2d 574.

In this case we are bound to follow the law as it has been declared in the Moore opinion and the subsequent supporting decisions. If, as contended, defendant in fact pleaded the issue of plaintiff’s contributory negligence as an affirmative defense and offered some substantial proof to support the allegation, it was proper for the court to give defendant’s Instruction No. 7. Under such state of the record it would be our duty to hold that the giving of Instruction No. 1 was error.

Plaintiff counter-contends it was not necessary for the verdict-directing instruction to negative contributory negligence on his part because defendant was not entitled to any instruction submitting that issue in the first place. As supporting reasons, plaintiff states: (1) Contributory negligence was not pleaded by defendant as a defense, and (2) there is no proof of that element. These assertions are not consistent with the record.

Defendant’s answer contains the following allegation: “3. Further answering defendant states that plaintiff was guilty of negligence as alleged in defendant’s counterclaim herein which directly caused or directly contributed to cause said collision”. In his counterclaim defendant alleges that plaintiff was guilty of acts of negligence “in negligently driving said truck backwards and to the north in a south bound lane of traffic, in negligently failing to keep a lookout, in negligently failing to have and to keep said truck under control”. It is apparent that defendant has, by reference and adoption, incorporated into his answer the specifically alleged acts of plaintiff’s negligence set out in the counterclaim. We rule that defendant has clearly pleaded that plaintiff was guilty of negligent acts contributing to cause the collision. Authorities cited and relied on by plaintiff are not in point. In those cases, plaintiff’s alleged negligence was pleaded as the direct cause or the sole cause of the casualty, in the nature of a general traverse of plaintiff’s right to recover — not as a contributing cause.

Plaintiff insists that the evidence raised no issue of contributory negligence, but that instead it made an issue of “whether (the) accident was caused solely by plaintiff’s negligence or solely by defendant’s negligence”. It is true, as plaintiff argues, that each of the parties testified to his own innocence and to the fault of the other — that plaintiff stated “I was stopped and defendant hit me in the rear”, and that defendant said “I was stopped and plaintiff backed into me”. We can agree with plaintiff that his testimony and that given by defendant are diametrically opposed. However, we are aware of no rule of law that requires a jury, in determining a pleaded issue of contributory negligence, to accept the entire body of testimony given by one of the parties as true, and reject the whole substance of the other party’s evidence. Plaintiff cites no such authority. On the contrary, the jury, as the trier of the facts, may believe such portions of the testimony of both parties as it chooses and reject the truth of any matter testified to by either party. So, in this case, the jury was privileged to believe, as plaintiff testified, that defendant’s automobile was not stopped at the time of impact, but was moving forward, and that defendant negligently ran it into collision with the mail truck. At the same time, the jury could also believe the testimony of defendant that plaintiff’s vehicle also was in motion — that while it was rolling backward it came into collision with defendant’s forward moving automobile. If the jury so found the facts, they could properly conclude that the negligence of both parties contributed to cause the collision.

Plaintiff additionally suggests that certain language of the Moore opinion indicates that the failure of the verdict-directing instruction (No. 1) to negative contributory negligence was cured by the giving of defendant’s Instruction No. 9 which told the jury that it was the duty of plaintiff “to exercise the highest degree of care” for his own safety. We are compelled to reject the suggestion, in view of the positive declaration of the Supreme Court that “it is error to give a verdict-directing instruction for plaintiff which fails to refer to or negative his contributory negligence”. Moore v. Ready Mixed Concrete Company et al., supra.

It is our conclusion that the giving of plaintiff’s Instruction No. 1 was reversible error. Defendant makes additional assignments of error which we need not decide, in view of the necessity for a re-trial of the case and the enlightenment on those subjects contained in the briefs.

Accordingly, the judgment is reversed and the cause remanded for a new trial.

All concur.


author: HUNTER, Presiding Judge.

text:
    Anna McKAIG, Appellant, v. KANSAS CITY TERMINAL RAILWAY COMPANY, a Corporation, Respondent.
    No. 23506.
    Kansas City Court of Appeals. Missouri.
    Feb. 5, 1962.
    Swofford, Smith & Waisblum, Kansas City, for appellant.
    William M. Stapleton, W. H. Bates, Kansas City, for respondent.
   HUNTER, Presiding Judge.

This is a suit by appellant, Anna McKaig, against respondent, Kansas City Terminal Railway Company, for damages in the sum of $25,000 for personal injuries suffered by appellant who tripped and fell when negligently directed into an unsafe place by a redcap employee of respondent.

As a result of the jury trial appellant received a verdict and judgment for $7,500. Thereafter, the trial court sustained respondent’s motion for judgment in accordance with its motion for a directed verdict at the close of all the evidence, set aside the verdict and judgment, and entered judgment for respondent. Appellant appealed requesting that her verdict and judgment for $7,500 be reinstated.

On this appeal we are presented a single question; namely, whether the provisions of the railroad passes issued to appellant barred her recovery.

The pertinent facts are undisputed and are as follows:

Appellant is a seventy-two year old widow who was planning a railroad trip from her home in Denver, Colorado to Indianapolis, Indiana to visit a relative. This necessitated passage on the Union Pacific Railroad to Kansas City, Missouri, and transfer there to the Wabash Railroad on east; and eventually on the New York Central Railroad to complete her trip.

Appellant applied to the Union Pacific Railroad for free passes for the trip from Denver to Indianapolis. It sent her a series of passes, one for each of the mentioned railroads. She commenced her journey by chair car on the Union Pacific, arriving at the Kansas City depot the 14th of December, 1958. Before leaving the train she asked the porter of her car to get her a redcap to assist her to the Wabash train and to take care of her luggage. A redcap was procured and she engaged him to take her and her luggage to the Wabash train which was waiting at another siding at the depot. She had made the trip before and had always engaged a redcap to give her that assistance.

The redcap took her by escalator up to the main level of the depot and back down again to the track level. The first attempt to reach the Wabash train was by way of a blocked passage. The redcap had her follow him to another passage, then “suddenly he says, ‘Lady, here’s your car right through there (indicating).’ ” The lighting and visibility were poor. She went as directed through a narrow passage between two baggage trucks and tripped and fell over the unseen protruding handle of one of them and was injured.

The pertinent language of the two passes, which appellant had signed, is:

Union Pacific Pass: “The user assumes-all risk of injury to person and to property and of loss of property, whether by negligence or otherwise, and absolves any company honoring this pass from all liability therefor.”

Wabash Pass: “The user assumes all risk of death, injury, loss or damage to the user’s person or property, whether due to negligence or otherwise, and neither the user nor any other person whatsoever, shall have-any right or claim against the issuing company, its servants or agents, or any company or railway on whose lines or trains this pass-may be honored, or its servants or agents,, in respect or arising out of any such death,, injury, loss or damage.”

Respondent owns and operates the Union-Station at Kansas City, Missouri, together with the tracks and' related railroad facilities necessary for a railroad terminal. By admission, respondeat is and was engaged in the operation of railway facilities in and about Kansas City including the Terminal and Union Depot facilities at Kansas City and the track level, platforms, common walks and passageways used for the loading and unloading of various trains, pas-engers, bags and equipment.

Respondent is owned by twelve trunk line railroads which enter Kansas City, Missouri, and those railroads, by contract have the “right and privilege” to operate their passenger trains over the tracks of Kansas City Terminal Railway Company and into and out of the Union Station, and of “using and enjoying” the Union Station: for their railroad passenger business for which they pay respondent’s expenses in operating its facilities. Both the Wabash Railroad Company and the Union Pacific Railroad Company are among the owners of the respondent and are parties to the mentioned contract.

Also admitted is that respondent had in Jts employment certain agents, servants, employees and redcaps, including the mentioned one, available for hire to assist persons in and about the Terminal and Union Depot premises and facilities and in moving persons, luggage and equipment to and from the various trains, platforms, passageways and common walks on and about the premises. This particular redcap at the time in question was carrying out his normal duties on behalf of his employer.

Certain of the provisions of the Local and Joint Passenger Tariff of the Interstate Commerce Commission provide: “The carriers parties to this tariff do not undertake to furnish station porter (red-cap) service generally, or at all stations, or at all times at stations where such service is furnished. When and where and to the extent that station porter (red-cap) service may be furnished by the carriers parties hereto, the charges will be * * * Kansas City '(Union Depot) 15 cents for each piece so handled.”

Every redcap at the Union Station at Kansas City was required to charge 15 cents per parcel and at the end of each day turn that money over to respondent employer. Tips could be retained by the redcap.

Before reaching the precise question upon which this decision must turn it is helpful to examine the case of Brown v. Terminal Railroad Association of St. Louis, Mo.App., 298 S.W.2d 471, cited and relied upon by all the parties and with which decision we agree. Brown was riding as a passenger on a free pass on the Wabash Railroad train when it was struck by a Terminal switching engine whose engineer negligently failed to heed a stop signal. Brown sued Terminal for his resultant injuries. The provisions on the Wabash pass in the Brown case are identical with those on the Wabash pass now before us. In holding that the provisions of the free pass prevented recovery by Brown the St. Louis Court of Appeals said: “Plaintiff must be held to have authorized Wabash to contract with Terminal for the use of the latter’s facilities, and to have agreed that the provisions of the pass should protect Terminal to the same extent that they protect Wabash. The limitation of liability provided for in the pass extends to all railroads and facilities contributing to the accomplishment of the transportation as to all risks taken by plaintiff as a passenger on any part of the whole journey. When plaintiff boarded the Wabash train at Decatur, Illinois to be carried to St. Louis, Missouri he must be held to have agreed to transportation by Wabash not only to the end of the Wabash tracks but also over and across Terminal tracks and bridges and into and upon Terminal stations and facilities and thus and thereby to his destination in exactly the same manner as if the tracks, bridges, etc., were the property of Wabash. Plaintiff undertook to be carried the whole way at his own risk, not only over Wabash tracks but also over the tracks of any agency or instrumentality of Wabash. The language of the pass is broad. It contains an unrestricted assumption of all risk of injury whether due to negligence or otherwise, coupled with an express agreement that the user of the pass shall have no right or claim arising out of any such injury against the issuing company, Wabash, its servants or agents, or any railway on whose lines or trains the pass may be honored, or its servants or agents.”

The Brown decision, supra, reviewed the law relating to Terminal Companies, such as respondent, and held, “* * * Terminal was an ‘agent’ of the issuing carrier within the meaning of the language of the pass”, citing numerous decisions. Thus, Terminal is the agent of the proprietary lines in taking a passenger and her luggage to and from trains of proprietary lines using Terminal facilities. See, Treadway v. Terminal R. R. Ass’n of St. Louis, 231 Mo.App. 1028, 84 S.W.2d 143, 146.

With these principles in mind we approach the precise contention of appellant, namely, that the mentioned provisions of the railroad passes should not be construed to include exemption from liability for negligence resulting from paid for redcap service, and constitute no defense.

Both appellant and respondent report their research has not located any decision concerning the applicability of free pass covenants not to sue for injury occasioned by the negligent act of a redcap employed by the injured person to assist him with his baggage. In an excellent brief appellant’s counsel have illuminated her basic contention by emphasizing that Mrs. Mc-Kaig’s case against Terminal is not based upon Terminal’s negligence in providing facilities or services which were furnished plaintiff as a part of her free transportation; not based on negligence of Terminal in allowing the baggage trucks to obstruct the platform under circumstances of insufficient lighting; but rather upon the active negligence of a redcap hired by Mrs. McKaig by separate contract, and upon whom she relied in directing her step by step to the point of casualty. Her counsel contends this contract of employment between her and the redcap for a valuable consideration is outside of and apart from the services the Union Pacific and the Wabash had agreed to provide through the issuance of the free passes. They further argue that in entering into this agreement Terminal was not honoring a pass issued by Wabash and was not acting as an agent of the Union Pacific, but was acting in its own behalf. They conclude that an assumption of risk provision is intended to provide immunity from liability in the performance of the thing agreed to be done and is not intended to-relieve from liability for negligent performance of a service not agreed to be done. They also assert that since a contract purporting to exempt a common carrier of liability for negligence is void as to passengers who have paid for their passage, if this pass is construed to include the redcap service it would be void' as against public policy as an attempted immunity from liability in the rendition of this service for compensation. We will examine each of these contentions.

The general rule, early announced in Grand Trunk Railway Company of Canada v. Stevens, 95 U.S. 655, 24 L.Ed. 535, is that a contract undertaking to exempt a common carrier of passengers from liability for negligence is void. The general rule is placed on broad grounds of public policy, justifying restriction of liberty of contract because of the public needs to be achieved. The need to secure the utmost care in the rendering of a service of the highest importance to the community by the common carrier was deemed paramount. This concept was not made applicable to gratuitous passengers where negligence as opposed to wanton or willful acts is concerned. Martin v. Greyhound Corporation, 6 Cir., 227 F.2d 501; New York Central R. Co. v. Mohney, 252 U.S. 152, 40 S.Ct. 287, 64 L.Ed. 502. As expressed in Kansas City Southern Ry. Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176, 177, 67 L.Ed. 348, the accepted federal rule is * * * a passenger who accepts a free pass may exempt a carrier from responsibility for negligence, and no public policy is violated thereby.”

Through a series of acts, congress has pre-empted this field of free passes involving interstate transportation, to whom and under what conditions they may be issued and the limitations and conditions upon their use. See, Francis v. Southern Pac. Co., 333 U.S. 445, 468, 68 S.Ct. 611, 92 L.Ed. 798; Braughton v. United Air Lines, Inc., D.C., 189 F.Supp. 137, 141.

The Missouri decisions and those of sister states follow the federal rule that a common carrier such as those involved here may validly stipulate against liability for negligence with persons who use a free pass/ In Dunn v. Alton R. Co., Mo.App., 88 S.W.2d 224, 230, it was expressed, “It is now no longer open to question but that the entire subject of free interstate transportation has been taken over by Congress to the exclusion of all state laws and policies, and that the stipulation in a free interstate pass releasing the carrier from liability, being a part of the pass itself, is valid and enforceable.”

But, says appellant, even if the provisions in her Wabash and Union Pacific passes are valid they do not apply to her situation. There can be no doubt but that as ruled in the Brown case, supra, Terminal is an agent of Wabash and Union Pacific and as such is generally entitled to the protection of the pass provisions if they otherwise apply. We are convinced that the facilities, services and activities of Terminal, including the redcap service rendered, are an integral part of the interstate transportation involved in Mrs. McKaig’s journey. We note that Congress has treated terminals, such as this one, and its redcaps as being a part of the interstate transportation system rather than as any separate, local facility or service. Harrison v. Kansas City Terminal Ry. Co., D.C., 36 F.Supp. 434; Lunsford v. Cleveland Union Terminals Co., 170 Ohio St. 349, 165 N.E.2d 3, 8.

Did the contract Mrs. McKaig made with Terminal’s redcap to pay him 15⅜ to carry her luggage and usher her convert her free pass into one for a consideration? The answer is “no”. It would no more do so than would her paying for her meals on the train diner or her paying for any special service in connection with her otherwise free transportation. In Stevens v. Colombian Mail S. S. Corporation, D.C., 15 F.Supp. 534, 535; in discussing the effect of such extras the federal court said, “As the pass shows on its face, the holder was entitled to free transportation, but was charged for meals and berth. In other words, she was a free passenger, but not a free boarder or roomer. In such a case the conditions attached to the pass are valid and control all rights incidental to passage.”

Did the fact that Mrs. McKaig was not aboard any train but was only approaching the Wabash train as she was injured place her outside of the terms of both passes. Again the answer is no. The terms of the passes are applicable to "the user’ . Several decisions support our ruling that she need not be on either train to be a “user” as that term appears in both passes.

In Ketchum v. Denver & Rio Grande Western R. Co., 10 Cir., 175 F.2d 69, 70, the free pass provided, “The user assumes all risk of injury’ to person * * Plaintiff entered the station premises to travel on the train. While proceeding along the walkway from the station to ihe train for the purpose of hoarding it, she suffered an accident. On these facts the court in denying recovery ruled, “The relation of carrier and passenger arises, and the duty of the carrier to the passenger attaches, when the latter enters the station premises for the purpose of boarding a train of the carrier. Such relationship precedes the actual boarding of the train and comes into being when a person, with the consent of the carrier, express or implied, enters the appropriate premises of the Railroad Company with the bona fide intent to avail himself of the transportation facilities which the carrier offers. It follows that the relationship of carrier and passenger existed at the time the accident occurred.”

In Wilder v. Pennsylvania R. Co., 245 N.Y. 36, 156 N.E. 88, 52 A.L.R. 188, the “Pennsylvania System” pass read, “In consideration of the issuance of this free pass, I hereby assume all risks of personal injuries * * Plaintiff fell on the soapy and slippery floor of the waiting room of the station owned by the Terminal. She was at the station for the purpose of boarding a train to Norfolk, Va., and was to ride on a pass issued by the Pennsylvania Railroad Company. The New York Court ruled against her claim for personal injuries saying, 156 N.E. loc. cit. 89: “The station and the waiting room were part of the connecting railroad which the plaintiff could use free of charge by reason of her agreement with the Pennsylvania Railroad Company. * * * While using this pass, therefore, she assumed .all risks of personal injury.”

In Lunsford v. Cleveland Union Terminals Co., supra, plaintiff was injured by the negligence of the Terminal Company in operating an escalator. She had alighted from the New York Central train and was riding the escalator from the track level to the terminal concourse. The pass she had used for her train transportation u-ead, “In consideration of receiving this free pass, each of the persons * * * using the same * * * agrees that the company shall not be liable * * *.” Citing with approval, Brown v. Terminal R. Ass’n, supra, the Ohio Supreme Court ruled the pass provisions applied to her accident and injuries.

In view of the foregoing cases and their principles, which we believe are sound, we rule that Mrs. McKaig at the time of her injury was a user of the Wabash pass, and the fact she was injured while not on a train is not controlling on the question of the applicability of the pass provisions of either pass.

We realize, without so ruling, that as to the Union Pacific Railroad she may have reached that place in her journey where she was no longer “the user” of that pass, although in contemplation of her continuous journey from Denver to Indianapolis she knew that at Kansas City she would need the aid of a redcap to assist her from the Union Pacific train to her next train, the Wabash. We do not pursue that subject further in view of our holding that she was a user of the Wabash pass at the time of her injury, and our rulings as to the interpretation and effect of the terms of the Wabash pass. Cf. Annotation, 147 A.L.R. 778.

Appellant relies principally upon her contention that the provisions of the passes ought not to be construed to apply to her, and if they are so construed they become void as against public policy. What we have already said in the main refutes these contentions.

Looking for the moment only to the provisions of the Wabash pass, as to which we have ruled she was a user at the time of her injury, we find they are expressed in very broad language which when given its usual and ordinary meaning encompasses “all risk” of injury, even that, as we view it, inflicted by the negligence of the redcap employee of Terminal, for the language specifically covers a “right or claim against the issuing company (Wabash), its servants or agents, or any company or railway on whose lines or trains this pass may be honored, or its servants or agents ⅜ * We hold that respondent Terminal is such a company contemplated by the pass terms, and that by covering “all risk” no1 exception is made of that resulting from optional, incidental or extra services such as those of the redcap even though they may be paid for services. The language used in the pass is not ambiguous, and we must give it its clear meaning.

Nor have we in our study of the federal decisions and those of our state and our sister states found any that would lead us to conclude that a charge, such as that here, for the optional, extra service of the redcap is of such import or effect as to change the pass transactions from one of free transportation to one of transportation for a consideration so as to make invalid the pass terms concerning the nonliability of the carrier or its agents for negligence to the user because allegedly against public policy. On the contrary, it is the general tenor of those cases that a charge may be made for an extra somewhat incidental service or item without invalidating the free pass provisions regarding nonliability for negligence to a user of the pass. If this were not so then such things as injury resulting from negligence by a dining car waiter to a free pass passenger who had ordered his meal on the train, or negligent injury to a free pass passenger by the train porter who for a small fee was performing some incidental extra service for the passenger would logically have to be deemed compensable in spite of the pass user’s covenant to the contrary because of the small payment for the incidental extra service invalidated the pass provision. Such a ruling appears unsound, and not supported by any logical consideration of public policy as that term is generally understood and applied. See, Stevens v. Colombian Mail S. S. Corporation, supra; Braughton v. United Air Lines, Inc., D.C., 189 F.Supp. 137, 140; Ulrich v. New York Central & H. R. R. Co., 108 N.Y. 80, 15 N.E. 60; 12 Am.Jur., Contracts, sections 169 and 172, page 666 ff.; 17 C.J.S. Contracts § 211(d), page 568. Rather, we hold that there is no public policy which prevents the described redcap service undertaken by respondent from being included in the questioned language of the Wabash pass, and that the language of that pass when given its usual and ordinary meaning obviously covers such service of respondent.

It follows that the trial court did not err in sustaining Terminal’s mentioned motion, in setting aside the verdict and judgment, and in entering judgment for defendant-respondent. The judgment is affirmed.

All concur.

      . In Northern Pacific R. Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 411, 48 L.Ed. 513, the United States Supreme Court explained: “The railway company was not, as to Adams, a carrier for hire. It waived its right as a common carrier to exact compensation. It offered Mm the privilege of riding in its coaches without charge if he would assume the risks of negligence. He was not in the power of the company and obliged to accept its terms. They stood on equal footing. If he had desired to hold it to its common-law obligations to him as a passenger, he could have paid his fare and compelled the company to receive and carry him. He freely and voluntarily chose to accept the privilege offered; and, having accepted that privilege, cannot repudiate the conditions.” In Alexander v. St. Louis-San Francisco Ry. Co., 221 Mo.App. 271, 2 S.W.2d 165, 167, it is said, “It is hardly reasonable that, beside the gift of free transportation, the carrier should be held responsible for these, when he has made it the condition of his gift that he should not be.”'

      . See, Kansas City Southern R. Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176, 67 L.Ed. 348; Pinnell v. St. Louis-San Francisco Ry. Co., Mo., 263 S.W. 182, 41 A.L.R. 1092; Alexander v. St. Louis-San Francisco Ry. Co., 221 Mo.App. 271, 2 S.W.2d 165; Boering v. Chesapeake Beach Ry. Co., 193 U.S. 442, 24 S.Ct. 515, 48 L.Ed. 742.

      . Loc. cit 436: “The various duties (of redcaps) intimately are connected with the obligation of the Terminal Company and the railroads holding stock in it to the travelling public.”


author: MAUGHMER, Commissioner-

text:
    Charles HAMPY, Respondent, v. MIDWEST HANGER COMPANY, a Corporation, and Carl F. Painter, Jr., Appellants.
    No. 23483.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1962.

      McFarland, Rittman & Krimminger, Kansas City, for appellants.
    Gene J. MacElhern, E. E. Thompson, Ernest H. Fremont, Jr., Kansas City, Pop-ham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner-

Plaintiff drove his 1952 Chevrolet Sedan into the rear end of defendant’s International tractor-trailer, which was standing in the outside lane of a dual lane highway. The trial resulted in a verdict and judgment awarding plaintiff $15,000 as damages. Defendants have appealed.

Many of the events leading up to this accident are not disputed. ’ It occurred about 1:30 a. m. February 6,' 1958, on a cool and clear winter night. The highway pavement and shoulders were dry. The place was the Village of Pleasant Valley, just north of Claycomo in Clay County, Missouri. The exact location was Highway 69, 300 or 400 feet south of its junction with Highway 10. The streets in Claycomo were lighted. Those in Pleasant Valley were not, but there was a blinker light at the junction of Highways 69 and 10. Both cars were headed generally in a northerly direction. Highway 69 forked a few hundred feet south of the place of collision and continued with four lanes of pavement — two for northbound and two for southbound traffic — and with a median in the center. The northbound pavement was 24 feet wide with a 12 foot shoulder of gravel. There was a cross-over immediately adjacent to the spot of collision. The front end of the Chevrolet hit the rear end of the tractor squarely, both cars being one or two feet right of the center line.

Plaintiff Charles Hampy was 30 years of ige, employed as an inspector at the General Motors B. O. P. plant in Kansas City. On the evening in question he had worked from 4:00 p. m. until 12:30 a. m. With a fellow employee Cleo Burton, he started to drive in the Chevrolet to his home near Liberty, Missouri. His brakes were in good order and from the time he left the plant until the accident he drove with his lights on low beam. He had traveled this route many times and was quite familiar with it.

Carl F. Painter, Jr., the defendant operator, was employed by defendant Midwest Hanger Company as a truck driver. At about 12:30 a. m. he left the company dock with a load of coat hangers and was bound for Des Moines and Mason City, Iowa. The load weighed 26,000 pounds. The transport vehicle consisted of a 1957 International truck and tractor-trailer. Mr. Painter did not ordinarily use this particular equipment and he was not fully familiar with the operation of the gas tanks which were three in number — a seat tank and two saddle tanks. Fuel from these tanks was utilized and its flow controlled by means of a hand-operated valve located on the cab floor. Mr. Painter drove into North Kansas City, stopped at a Hudson Oil Company station, took on 30 gallons of gasoline and proceeded on by way of 69 Highway to the place of the accident.

Beyond the evidence just recounted there is some dispute as to just what actually occurred and why. Mr. Painter stated that as he entered upon the divided highway and started up the slight incline there his motor began to sputter, which indicated to him that the seat tank which he was then using, was empty. He reached down and turned the valve which would connect one of the saddle tanks. He said the motor immediately picked up, but an instant later again sputtered and quickly stalled, leaving him standing on the right lane of the northbound dual lane. He stated the engine stalled so quickly that he had no opportunity to pull onto the shoulder. He then picked up his flash light and started to get out but before he was able to do so “there was a screeching and a loud bang” and the accident had happened. He testified that he then got out of the truck and found the Chevrolet wedged under the back end of the trailer. He tried to open the Chevrolet left door, was unable to do so, then tried the right door, which did open. He said he had not had time to set out flares.

It was plaintiff’s version and testimony that as he approached the scene he was driving 40 to 45 miles per hour; that he had just met a car coming from the north; that its lights did not blind him, but there was a glare. He said he saw defendant’s vehicle an instant later and estimated he was 120 or 130 feet away. He stated that at first he thought the tractor-trailer was moving, but quickly realized it was not; that he immediately put on his brakes and attempted to “veer to the left”. However, he declared he was afraid to turn clear to the left lest he turn over and because he thought someone might be standing on the left side of the truck. Plaintiff testified further that no flares were out and the rear end of defendant’s vehicle was unlighted. He said that when defendant Painter opened the right door and helped him out that Painter said: “I’m sorry, I run out of gas. I was trying to get the tanks switched over — one tank to the other, and was unfamiliar with the equipment and I had turned off my lights trying to start the motor and I had only been here about five minutes”. Defendant denied making this statement.

State Trooper Oberhelman found skid marks from the Chevrolet for a distance of 30 feet to the point of impact. Plaintiff estimated that he could see a distance of 100 feet with his lights on low beam but said if they had been on high beam he could have seen a distance of 300 feet. The testimony of plaintiff’s passenger Mr. Burton was substantially in accord with plaintiff’s.

We have not summarized the evidence relating to plaintiff’s injuries since no point has been made on appeal as to the amount of recovery. Plaintiff did receive substantial injuries. The transcript in this case contains 712 pages. While much of it concerns plaintiff’s injuries and evidence relating to certain jurors which will be discussed later, there was voluminous testimony relating to the question of liability. Depositions of the parties were discussed and gone over again and again. The parties were examined and re-examined, cross-examined and re-cross-examined. Our summary of the facts is by comparison brief and counsel may feel, rightly or wrongly, that we have omitted some details which may seem important and which were probably of value in conducting a complete trial. However, we believe our summary presents the salient and basic facts, both parties’ explanations and contentions sufficiently to portray the occurrence and to enable us to determine the fundamental issues posed by the appeal.

Defendants’ first assignment of error is that the court should have sustained the motion for directed verdict because plaintiff was guilty of contributory negligence as a matter of law. Defendants’ Instruction No. 3 submitted contributory negligence to the jury on two points. (1) plaintiff’s failure to turn to the left and (2) plaintiff’s failure to stop. The verdict was against them under this submission.

This court (Rader v. David, Mo. App., 207 S.W.2d 519, 523) defined contributory negligence this way: “Contributory negligence is a want of due care on the part of a plaintiff claiming to have been damaged by the actionable negligence of another, combining and concurring with that negligence, and contributing to the damage as a proximate cause thereof, without which such damage would not have occurred. (Citing cases)”.

In Thompson v. Byers Transp. Co., Inc., 362 Mo. 42, 239 S.W.2d 498, 499, 500, plaintiff was driving in fog and ran into defendant’s truck which was stopped on the highway. Plaintiff said defendant’s truck had no rear lights. Plaintiff, driving 15 to 20 miles per hour, said he would have required 50 feet in which to stop. He first saw defendant’s truck 10 feet away. Plaintiff’s lights were on dim. The court said:

“The burden of establishing plaintiff’s contributory negligence falls upon the defendant unless it be established as a matter of law by plaintiff’s evidence. With defendant carrying the burden of proof, plaintiff’s contributory negligence most frequently is a fact issue for the jury for the credibility of the witnesses is involved, especially where there is a conflict in the testimony, the same as is defendant’s actionable negligence ordinarily a fact issue. Consequently, plaintiff’s contributory negligence is for the jury unless reasonable minds can draw only the conclusion that plaintiff was negligent. The whole evidence and all legitimate inferences deducible therefrom are viewed in the light most favorable to plaintiff and taken as true while the evidence and inferences favorable to defendant are disregarded in ruling the issue of contributory negligence as a matter of law.
⅜⅞ ⅜ ⅜ ⅜ ⅝ jft
“In the foregoing circumstances plaintiff’s contributory negligence was not established as a matter of law. He was not aware of the presence of defendant’s trailer blocking the highway at a place where he had a right to as-same the way was clear and he could proceed with safety on his side of the pavement. The situation is distinguishable from defendant’s cases wherein automobilists have crashed into a railroad train or cars blocking a highway-railroad grade intersection where they do not have the right to assume the way is clear and are required to anticipate the possible presence of cars blocking the crossing and to act accordingly. (Citing cases.)”

The Supreme Court in Parsons v. Noel et al., Mo., 271 S.W.2d 543, reiterated that the defendant carries the burden of showing plaintiff’s contributory negligence, that usually the question is one of fact for the jury especially where there is a conflict in the testimony, that it is for the jnry unless reasonable minds can draw only the conclusion that plaintiff was negligent and that all legitimate inferences are viewed in a light most favorable to plaintiff. In this case Parsons drove his car into the rear of defendant’s dump truck which was parked on the highway, having “run out of gas”. There was evidence plaintiff was driving 60 to 70 miles per hour and the jury might have inferred such speed was failure to exercise the highest degree of care and that plaintiff might have swerved to the left, and missed defendant’s truck. The appellate court ruled that while the question was close it was for the jury and affirmed a judgment for plaintiff.

Defendants invite our attention to Lemken v. Brooks Truck Lines, Inc., Mo., 322 S.W.2d 803. There the court cites the Parsons case with approval but also approves a directed verdict for the defendant. One main difference in the two cases as pointed out by the court is that in the Parsons case the truck was parked unlighted on the traveled portion of the highway outside the limits of a city or town and where plaintiff had no reason to anticipate the presence of stationary trucks, whereas in the Lemken case the unlighted trailer was parked at the curb of a city street where vehicles normally park and are expected to be. This case is somewhat akin to those where plaintiff hits a train at a grade crossing, where he not only could see, but where he reasonably should have expected trains to be. Fugate v. St. Louis-San Francisco Ry Co., Mo.App., 348 S.W.2d 718.

The opinion of this court in Van Sickel v. F. M. Stamper Co., Mo.App., 198 S.W.2d 539, referred to by defendants in their brief is different on the facts. There the parked truck was well lighted and plaintiff struck it and was killed while traveling at a high and excessive rate of speed.

We shall not under the facts here rule plaintiff guilty of contributory negligence as a matter of law but rather hold it to be a question for the jury.

Appellants complain that plaintiff’s main Instruction No. 1 fails to incorporate a finding “that defendant Painter’s duty to pull off onto the shoulder did not begin until such time as he was aware, or in the exercise of the highest degree of care, should have been aware that he had encountered mechanical difficulties that would cause his forward progress to cease”. The instruction hypothesized the facts fully and required a finding that the stopping on the highway was negligence and was not in the exercise of the highest degree of care. We think the instruction, standing alone, is good. If defendants believed it needed further explanation or clarification on some feature, a defendant instruction on that point should have been offered.

Appellant’s third point is two-pronged. It assigns as error the refusal to admit the offered expert testimony of police officer Bryce Thompson and asserts the Court erred in personally interrogating Officer Thompson in a hostile manner to the prejudice of defendants before the jury. Officer Thompson said he could determine the “coefficient friction” of an automobile on pavement and was then asked if he could “tell the stopping distance” of an automobile on the particular highway involved in this accident. The Court asked four questions of the witness : (a) If make, age, weight or load of the vehicle made any difference; (b) if it would make a difference if the brakes locked “uniformly or not uniformly”; (c) if not all wheels locked and (d) if temperature made a difference. The Court’s questions were not improper. There is no showing that the manner of the inquiries was hostile. There was no offer of proof or showing as to what the answer would have been. This assignment is ruled against defendants.

Appellants complain that plaintiff’s counsel in his closing argument told the jury that: “You’ve got to be negligent yourself before you claim somebody else is contributorily negligent”. In response to an objection the Court told the jury to “be governed by the instructions in the case and' the evidence, of course”. No further protest, objection or suggestion was made by defendants. No reversible error is shown on this point.

The fifth and final assignment alleges it was error to deny a new trial because two jurors Louis Stone and Allan Mitchell failed to truthfully answer questions propounded to them on the voir dire examination. Juror Mitchell on voir dire made no response when the question was put if any member of the panel had ever been a plaintiff in a law suit “involving personal injuries to yourself or any member of your family”. In truth and in fact when this juror was 19 years old he had been hospitalized for ten days and disabled for six weeks as a result of accidental injuries. A suit for $15,000 had been filed but settled. After the trial the juror said he had forgotten that a suit had been filed. The trial court specifically found that this juror did not intentionally conceal this fact.

Juror Stone was baptized and married in the Catholic church under the name of Mangiaracina. This was his father’s name in the “Old Country”. However, juror Stone by affidavit says his father was naturalized in 1894 under the name of Antone Stone; that the 'juror was born November 7, 1903, and has always used the name “Stone” and that his property is carried in the name of “Stone”. Juror Stone also on voir dire recalled no personal injury damage suit involving him or his family. However, in 1946, his wife had an automobile collision with a Mr. Walter Wells. The juror’s wife under the name of Eula D. Stone filed suit and Wells counterclaimed. The matter was settled without trial. Juror Stone said he had forgotten the incident.

The trial court in overruling defendants’ motion for new trial, found specifically: neither jurors Stone nor Mitchell, on voir dire, intentionally concealed the fact they had been involved in prior litigation. Juror Stone has used the name “Stone” and been, generally known by that name for fifty years. Neither juror Mitchell nor juror Stone bore any ill will toward defendants, and defendants were not prejudiced by the answers given by them on voir dire.

Appellants have briefed this last assignment under their Supplemental Brief in which they cite two cases: In Girratono v. Kansas City Public Service Co., Mo., 272 S.W.2d 278, the juror identified himself as Ralph Byrd when he had been involved in two lawsuits where he testified his true name was Ralph Wilson. He said he had forgotten about these matters. The trial court did not believe him and granted a new trial. On appeal such action was affirmed. The second case is Triplett v. St. Louis Public Service Co., Mo.App., 343 S.W.2d 670, 672, 673, and the court summarizes many of the pertinent rules on these questions as follows :

“The principles declared by such authorities are clear and undisputed, and may be concisely restated. The right of trial by jury guaranteed by our Constitution, if it is to be worth anything, must mean the right to a fair and impartial jury. Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459. A litigant is therefore entitled to a jury composed of twelve impartial persons; for although a civil case may be decided by the vote of three-fourths of that number, a party has the right to have that decision, whether for or against him, based on the honest deliberations of twelve such individuals. Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 127 A.L.R. 711. It is fundamental that a prospective juror is not the judge of his own qualifications. Bass v. Durand, 345 Mo. 870, 136 S.W.2d 988. And to the end that a party may intelligently exercise his challenges, it is the duty of a juror on voir dire examination to fully, fairly and truthfully answer all questions directed to him. Girratono v. Kansas City Public Service Co., Mo., 272 S.W.2d 278. Hence, a juror’s intentional concealment of a material fact may require the granting of a new trial. Woodworth v. Kansas City Public Service Co., Mo., 274 S.W.2d 264. For bias and prejudice on the part of a juror may be inferred from his intentional concealment of such information. Girratono v. Kansas City Public Service Co., Mo., 272 S.W.2d 278. But an unintentional failure to disclose information not directly connected with the case does not necessarily show prejudice on the part of the juror so as to call for the trial of the case anew. Davis v. Kansas City Public Service Co, Mo., 233 S.W.2d 679.
“In the final analysis, therefore, the question of what result should follow the failure of a juror to correctly answer a question touching his qualifications depends upon whether or not he was guilty of an intentional concealment. Primarily, the determination of that question must be left to the sound discretion of the trial court. Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795. Nevertheless, the exercise of such a discretion is subject to judicial review, and if an appellate court concludes from the record that an abuse of discretion unmistakenly appears, it is its duty to reverse the ruling”.

Of course jurors’ answers on voir dire should not only be the truth but the whole truth. A litigant is entitled to twelve fair and impartial jurors and if misinformation is given even unintentionally or indirectly, it might result in granting a new trial if it was on a pertinent matter and the losing, party’s cause was prejudiced thereby. Reason and the precedents rule that the answer to this question, involving credibility and at least a quasi-equitable determination, rests primarily with the trial judge, and his discretion, if reasonably exercised, will not be overturned. We are unable to conclude that defendants were prejudiced by the answers given or information withheld by the jurors Mitchell and Stone. The record does not show unmistakably an abuse of discretion as to this point.

The judgment is affirmed.

SPERRY, C, concurs.

PER CURIAM.

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

All concur.