author: WILLIAMS, Justice.

text:
    James W. WYATT, Appellant, v. Donald M. MOTSENBOCKER, Appellee.
    No. 16024.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 1, 1963.
    Bowyer, Thomas, Crozier & Harris, William W. Sweet, Jr., and Robert H. Thomas, Dallas, for appellant.
    Thompson, Knight, Wright & Simmons, Timothy E. Kelley and John A. Gilliam, Dallas, for appellee.
   WILLIAMS, Justice.

This is the second time we have had occasion to consider this appeal. In Wyatt v. Motsenbocker, Tex.Civ.App., 360 S.W.2d 543, 545, we held that there was no evidence to support the finding of the jury that the plaintiff’s negligence was a proximate cause of the injury to plaintiff’s minor child, Gloria Ann Wyatt. The Supreme Court of Texas granted a Writ of Error and subsequently decided that there was some evidence supporting the jury’s findings that the plaintiff Wyatt was negligent and also that there was some evidence supporting the jury’s finding that Wyatt’s negligence was a proximate cause of his daughter’s injuries. Motsenbocker v. Wyatt, Tex. Supreme Court, 369 S.W.2d 319. The Supreme Court remanded the appeal to this court for our consideration of appellant’s points that the jury’s finding of negligence and proximate cause were contrary to the overwhelming preponderance of the evidence.

Inasmuch as the facts of this case have been completely set forth in our original opinion, as well as in the opinion of the Supreme Court, we feel that no useful purpose would be served by repeating such facts here.

The Supreme Court has established the substantive law of this case by holding, as a matter of law, that there is some evidence of probative force to justify the jury’s finding that Wyatt was guilty of negligence in permitting his minor child to remain unattended for a period of approximately one hour, and also that such negligence was a proximate cause of the injuries of such minor child. The sole question for our determination is whether, under the record in this case, the evidence on these two issues is sufficient to justify the jury’s answer thereto. We have, accordingly, carefully considered the entire statement of facts in this case in accordance with the rule announced by our Supreme Court in Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, and also by Chief Justice Robert W. Calvert in his article entitled, “No Evidence” and “Insufficient Evidence”, Points of Error, Texas Law Review, Vol. 38, Pages 361-372, and by former Associate Justice Garwood in his article entitled, “The Question of Insufficient Evidence on Appeal”, 30 Texas Law Review 803. Having done so, we are unable to agree with appellant that the answer of the jury to Special Issue 8-B on the issue of negligence, and the answer of the jury to Special Issue 8-C, on the issue of proximate cause, is so contrary to the great weight and preponderance of the evidence as to be manifestly wrong or unjust. We find that the answers of the jury to these issues are supported by sufficient evidence and therefore overrule appellant’s points of error.

The judgment of the trial court is in all things affirmed.

Affirmed.


source: Caselaw Access Project

author: COLEMAN, Justice.

license: Public Domain

text:
    William P. HEMPHILL, Appellant, v. Elbert JUNIOUS et al., Appellees.
    No. 14207.
    Court of Civil Appeals of Texas. Houston.
    Nov. 14, 1963.
    Bernard & Bernard and D. R. Bernard, Houston, for appellant.
    G. F. Steger, Columbus, for appellees.
   COLEMAN, Justice.

This is a suit for damages and to cancel an instrument in the form of a power of attorney. On motion of the defendant, William P. Hemphill, the case was withdrawn from the jury for the reason that no material issues of fact were raised by the evidence. However, the court proceeded to render judgment for the plaintiff, Elbert Junious. The defendant, Hemphill, appeals. Aetna Life Insurance Company, a named defendant, filed a bill of interpleader and tendered into court funds held by them and were discharged with their attorney’s fee. No complaint is made of this action and Aetna is not a party to this appeal.

This controversy arose over the right to collect the sum of $750.00 from Aetna Life Insurance Company out of the proceeds of a policy of life insurance issued by that company on the life of Lester Junious. The policy named Elbert Junious, the father of Lester Junious, beneficiary. After the death of Lester Junious, his wife arranged with William P. Hemphill to conduct the funeral. After the funeral Elbert Junious executed an instrument, which, reciting that he was beneficiary of a certain policy of life insurance, provided:

“I, Elbert Junious * * * do hereby make, constitute and appoint Hemp-hill Funeral Home, of the City of Plouston, Texas my true and lawful attorney in fact for me and in my name, place and stead to collect $750.00 from the above named insurance * * due me under the above numbered policy. * * * ”

The parties stipulated that Hemphill attempted to collect $750.00 out of the proceeds of the insurance policy by presenting the power of attorney and that as a result of this action the insurance company withheld that sum from the proceeds of the policy paid to Elbert Junious.

After appellant secured the signature of Elbert Junious to the power of attorney, he caused to be inserted the name of Virginia Junious, the wife of the deceased, as a comaker of the power of attorney, and procured her signature thereto and arranged for her to swear to the instrument. The instrument as presented to the insurance company then appeared to have been executed as a joint power of attorney by both the father and the wife of the deceased and to have been sworn to by both of the grantors. These changes in the instrument were made without the knowledge or prior consent of Elbert Junious.

Appellant makes no complaint of the action of the trial court in withdrawing the case from the jury, but contends that the power of attorney constituted a valid assignment and that the trial court erred in failing to render a judgment in his favor.

It is clear that the instrument appears on its face to be a simple power of attorney. Appellant’s original answer, upon which he went to trial, consists of a general denial and a prayer that plaintiff take nothing and for general relief. In his judgment the trial court decreed the “purported assignment or power of attorney” void and of no force and effect. The answer, if any, filed by appellant to the bill of interpleader was not brought forward to this Court.

It appears, therefore, that appellant’s only claim to the insurance proceeds rests on the power of attorney which merely authorizes him to collect a portion of the proceeds of the insurance policy for Elbert Junious. While the instrument authorizes him to act as an agent, it gives him no right to the money as against his principal and conveyed to him no ownership in the policy. The power of attorney, unless it was coupled with an interest, was revocable at will. Allison v. Smith, Tex.Civ.App., 278 S.W.2d 940.

“To be an agency coupled with an interest the agent must have a present interest in the property upon which the power is to operate. It does not suffice that the agent have an interest in the proceeds to be derived from the sale of the property. There must be a beneficial interest in the thing itself.” Wall v. Ayrshire Corporation, Tex.Civ.App., 352 S.W.2d 496.

If appellee had not exercised his power to revoke the power of attorney sooner, he did revoke it by filing" this suit. The trial court did not err in holding that the power of attorney was void. We are not persuaded that a valid assignment of the fund by Elbert Junious to appellant is established by the undisputed evidence.

The judgment of the trial court is affirmed.


author: BATEMAN, Justice.

text:
    JACK R. ALLEN & COMPANY, Appellant, v. FARRIS & COMPANY, Appellee.
    No. 16241.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 18, 1963.
    Rehearing Denied Nov. 15, 1963.
    Matthews, Payne, Pace, Sands & Ben-ners, Fred H. Benners, Dallas, for appellant.
    McKool & McKool, Dallas, for appellee.
   BATEMAN, Justice.

This is a companion case to Jack R. Allen & Company v. Wyler Textiles, Ltd., this day decided by us. We refer to the opinion in that case in Tex.Civ.App., 371 S.W.2d 728, for the basic facts of the litigation. The trial court denied the appellant, herein called Allen, any relief on its cross-claim against the appellee, herein called Farris; hence, this appeal.

Allen alleged in its cross-claim that on June 6, 1959, the same day it contracted to sell Wyler Textiles, Ltd. 500 bales of cotton of a certain grade, to be delivered in June and July, 1959, it entered into a contract with Farris under which Farris agreed to ship the same quantity and quality of cotton to Wyler in Hong Kong in June and July, 1959; that Farris shipped only 150 bales and after Farris became in default it requested Allen to undertake to obtain an extension of the time for delivery of the remaining 350 bales, which Allen attempted in good faith to do, purely as an accommodation to Farris, by making a new agreement with Wyler whereby the 350 bales could be shipped in August or September; that Allen and Farris then made a new contract dated August 13, 1959 covering the remaining 350 bales; but that if the new contract between Allen and Wyler was held to be unenforceable and Wyler recovered against Allen, then Allen was entitled to recover over against Farris in the same amount.

Farris answered that the agreement of June 6, 1959 was cancelled and replaced by the August 13 contract, with which it was at all times ready, willing and able to comply; that the second contract provided for delivery “prompt upon receipt of letter of credit,” and that this letter of credit was never furnished.

The two contracts between Allen and Farris are in evidence before us. The one dated June 6, 1959 obligates Farris to ship 250 bales in June and 250 bales in July, 1959, for which Allen agreed to pay 23.65 cents per pound. The contract of August 13, 1959 confirms the purchase by Allen from Farris of 350 bales at 31.65 cents per pound, but provides for delivery promptly “upon receipt of letter of credit.” No more definite time of shipment or delivery is specified. The contract bears this notation: “This purchase cancels and replaces the balance due on our Purchase P-2510 dated 6/6/59 from you.” Both contracts contain the following provision:

“This evidences the entire contract between the parties hereto, and all terms, provisions and conditions relating thereto, and supersedes all prior negotiations, agreements and conditions.”

Both parties moved for summary judgment. The court denied Allen’s motion and granted that of Farris.

The first point of error on appeal is that the court erred in denying Allen’s motion for summary judgment because the undisputed facts entitled Allen to judgment as a matter of law. This point is overruled. In the first place, Wyler’s judgment against Allen has not become final. While we have this day affirmed it, it is still subject to our consideration of a motion for rehearing which may be filed, also to possible review by the Supreme Court. Moreover, there are fact issues yet to be determined in connection with Allen’s cross-claim. In its “supplemental petition” Allen asserts a cause of action against Farris, not only for the amount of any judgment Wyler might obtain, but also for loss of profits and expenses of litigation. The evidence on these matters in the record before us is incomplete and insufficient to form the basis of a summary judgment. There may be other fact issues presented in the trial court which that court may see fit to consider.

Allen’s second point of error on appeal is that the court erred in granting Farris’ motion for summary judgment, which was apparently done on the theory that, as asserted by Farris, the agreement of August 13 between Farris and Allen constituted a novation which in effect relieved Farris of any liability which may have already accrued and extended the time for delivery of the cotton. Allen contends on several grounds that the agreement is not a novation.

One of these grounds is that there was no consideration for the second agreement in that it did not obligate Farris to do more than he was already bound to do by the first contract. We hold that the second contract was not without consideration. Default had already occurred and Farris could conceivably stand on its breach and pay the resulting damages, if any, with less risk than it would assume under the new contract. In other words, Farris was under no legal duty to make the new commitment, and in doing so suffered a legal detriment, which in itself is sufficient consideration for Allen’s new agreement. It must have been considered an actual detriment by Allen, as evidenced by the increase of the price from 23.65 to 31.65 cents per pound. This increase in price provided ample consideration for Farris’ new agreement. Therefore, the new contract cannot be said to be invalid for lack of consideration. Dallas Farm Machinery Co. v. Minneapolis-Moline Co., Tex.Civ.App., 324 S.W.2d 578, no wr. hist.; Hughes v. Prewitt, 5 Tex. 264; 17-A C.J.S. Contracts § 394, pp. 474, 475; George v. Union Bank & Trust Co., Tex.Civ.App., 220 S.W.2d 686, no wr. hist.; Masterson v. Bouldin, Tex.Civ.App., 151 S.W.2d 301, err. ref.

Allen’s next contention, that the second contract is not a novation because Farris’ agreement thereunder is conditional, must be sustained. Whereas the time permitted for shipment of the cotton under the first contract was specifically stated, delivery under the second was conditioned upon receipt of a letter of credit — an event which may never occur.

“An agreement to novate a claim may be expressed conditionally and made to depend on the occurrence or non-occurrence of a certain contingency. Thus, if an agreement intended as a novation does not contemplate its immediate consummation but is dependent on a condition, it may only take effect by the performance of the condition before the debt is extinct, and if it is not so complied with a novation does not result; however, the accomplishment of the condition or contingency will make the agreement operative and binding.” 66 C.J.S., Novation § 4 b, pp. 685-686.

Thus, the August 13 contract could no-vate the June 6 contract only upon performance of the condition, and until such performance the first contract remained in effect. The filing of the suit by Wyler, followed by the filing of Allen’s cross-claim against Farris, made it quite clear that no letter of credit would be issued. It necessarily follows that Allen’s rights under the June 6 contract were not extinguished. Western Brokerage & Supply Co. v. Reclamation Co., 127 Tex. 386, 93 S.W.2d 393; Moffitt v. Hieby, Tex.Civ.App., 225 S.W.2d 441, reversed on other grounds, Moffitt v. Hieby, 149 Tex. 161, 229 S.W.2d 1005.

We have carefully examined the other reasons given by Allen for denying the efficacy of the August 13 contract as a novation and, finding no merit in any of them, they are overruled.

For its third point Allen says alterna* tively that, if we conclude that it is mistaken under its first point, the case should be remanded for the determination of fact issues as to whether there was a mutual mistake inducing the August 13 contract and as to the intent of the parties with regard to its constituting a release of Farris’ liability for breach of the first contract. As we have already decided that the case should be remanded, it is not necessary for us to pass on this point.

For the reasons hereinabove given, the judgment is reversed and remanded.

Reversed and remanded.


author: ANDREW JACKSON HIGGINS, Special Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. Elwyn Loomis CADY, Annabel Cady, Defendants-Respondents.
    No. 23773.
    Kansas City Court of Appeals. Missouri.
    Oct. 7, 1963.
    Robert L. Hyder, Melvin Englehart, Jefferson City, for appellant.
    Elwyn L. Cady, Jr., Kansas City, for respondents.
   ANDREW JACKSON HIGGINS, Special Judge.

Plaintiff-appellant filed a petition to condemn certain lands for Route CC in Livingston County which included a taking of certain right-of-way from defendants-respondents. Condemnation was ordered and commissioners were appointed by the court. Their report found no net damages due defendants. Defendants duly filed their exceptions to the report of commissioners and the case was set down for trial by jury.

Upon trial defendants assumed the burden of proof and were accorded the right to open and close. The petition described the taking as 0.52 acre of new right-of-way, and 1.21 acres for construction and maintenance of a channel change. Defendants’ first offer of proof was an unsuccessful request that the court take judicial notice of a sale of a tract reportedly contiguous to the tracts in question. The only other evidence offered by defendants was the testimony of their son who was also their attorney. Over objection of plaintiff, he stated that at a time just before the petition was filed the one acre of land which was immediately contiguous or adjacent to the land in question sold at auction for “special purposes” and brought twenty-one hundred dollars. The witness admitted on cross-examination both in open court and outside the hearing of the jury that he had no personal knowledge of such facts and that any knowledge he had was acquired through hearsay. He also admitted he was not an expert on land values. The numerous timely objections to this offer were eventually sustained. Upon this state of the record the defendants rested, and, upon motion by plaintiff, the court directed a verdict for the plaintiff. This was accomplished by the giving of Instruction No. 1, which is as follows:

“At the close of the Defendants’ evidence, the Court instructs the jury that on the law and the evidence the defendants are not entitled ts recover against the plaintiff damages for the taking of their property by the plaintiff; and you will therefore return a verdict in favor of the plaintiff and against the defendants”.

Defendants duly filed their Motion for New Trial which was sustained by the court “because of error in giving Instruction No. 1 and further, because the plaintiff has not at any stage of this cause offered proof that plaintiff and defendants were unable to agree upon compensation, if any, for the taking of defendants’ land, nor had plaintiff offered any evidence that any negotiations -were ever attempted; it being a jurisdictional fact, such fact must not only be pleaded but proven, and the verdict and judgment entered in this cause are hereby set aside.” * * * From this order and judgment granting defendants a new trial the plaintiff has appealed.

Plaintiff-appellant contends that Instruction No. 1 was proper for the reason that defendants failed to sustain the burden of proving damages as a result of the condemnation. It is true that the landowner has the burden of showing his damages by competent evidence. State ex rel. State Highway Comm. v. Esselman, Mo.App., 179 S.W.2d 749; Cape Girardeau & C. R. Co. v. Bleechle, 234 Mo. 471, 137 S.W. 974. Hence, the trial court properly ordered the hearsay testimony stricken and likewise properly denied the request for judicial notice. This, then, left only the fact of the taking as a basis for submission. Of the existence of this fact there can be no doubt inasmuch as plaintiff clearly represents in its petition that it does thereby acquire certain lands belonging to defendants for a public use. An appropriation of private property from defendants for public use is thus effectively admitted. Article 1, Section 26 of the Missouri Constitution, V.A.M.S., provides in part: “That private property shall not be taken or damaged for public use without just compensation”. (Emphasis supplied.) In view of this constitutional admonition and guarantee we believe that the fact of taking of property owned by defendants constitutes a prima facie case, thus giving rise to a right to have the value of same determined by a jury. Had the jury upon such a submission returned a verdict of no damage we feel the defendants would have no complaint inasmuch as their record provided no evidence tending to prove the dollar value of the damage, if any, occasioned by the admitted taking. By the same token the jury under proper instruction could have found damages within reasonable limits of their own experience and observation in the common affairs of life. Upon this rationale it was error for the court to foreclose defendants from a jury determination by giving Instruction No. 1, and the learned trial judge quite properly reversed himself and granted a new trial.

Appellant next contends that the court erred in granting a new trial for the reason that plaintiff had not offered proof of the parties’ inability to agree on compensation or that there had in fact been any negotiations for that purpose. Plaintiff’s petition was filed October 1, 1959, and the court (Honorable James W. Davis) set hearing thereon for December 8, 1959. On that date defendants filed their answer. The important substance of the answer is a denial of the allegation that the parties could not agree on compensation and a further denial that any offer of compensation had been attempted by plaintiff. In this connection defendants prayed that they be discharged for failure of such jurisdictional prerequisites. This prayer was overruled and condemnation was ordered and accomplished. Upon the filing of the report of commissioners defendants again raised their points relative to offer and negotiation and the motion was renewed prior to commencing the trial out of which this appeal arose. On each of these occasions the motion was overruled. Plaintiff’s petition alleged that, “Relator cannot agree with the owners of the land, property and rights herein described, upon the proper compensation, if any, to be paid therefor”. Insofar as the petition is concerned we hold this to be sufficient averment of such jurisdictional statement. Rule 86, Rules of Civil Procedure, V.A.M.R.: Section 523.010 V.A.M.S. Appellant contends that this is sufficient without further showing to confer jurisdiction on the circuit court relying on Corey v. Chicago, B. & K. C. R. Company, 100 Mo. 282, 13 S.W. 346, 1. c. 347, 348, which holds that it is not necessary for the condemning authority to prove inability to agree upon compensation by oral testimony. (Emphasis supplied.) Appellant also cites Southern Illinois & M. Bridge Co. v. Stone, 194 Mo. 175, 92 S.W. 475, 1. c. 478, where defendants asserted there was no evidence that plaintiff endeavored to agree on compensation. There the court reiterated the holding in Corey, supra, saying that the plaintiff might sustain the averment “by facts and circumstances, of which there was an abundance in this case to show that no efforts, however strenuous, upon the part of the plaintiff, would have resulted in such agreement”. We agree with the holdings in those cases. However, the best service they can perform for plaintiff in the instant case is to indicate that plaintiff’s petition conferred jurisdiction on the circuit court in the first instance, i. e., at the time of filing the petition. We cannot overlook the fact, conceded by appellant, that the record before us is void of any proof by testimony, facts and circumstances, or otherwise by which it might be inferred that the averment had at any time been sustained. Inability of the parties to agree upon compensation to be paid is jurisdictional and must be pleaded. State ex rel. State Highway Comm. v. Williams, Mo. App., 69 S.W.2d 970, 971. It follows that if it is necessary to so plead, then it is necessary to so prove. (Emphasis supplied.) School District of Clayton v. Kelsey, 355 Mo. 478, 196 S.W.2d 860, 1. c. 861. See also to the same effect Caruthersville School Dist. No. 18 of Pemiscot County v. Latshaw, 360 Mo. 1211, 233 S.W.2d 6.

Appellant cites cases on the proposition that there is always a presumption of jurisdiction and right action by a court of general jurisdiction. State ex rel. Nickerson v. Rose, 351 Mo. 1198, 175 S.W.2d 768; Ruckman v. Ruckman, Mo.App., 337 S.W.2d 100; Brinkerhoff-Faris Trust & Savings Company v. Gaskill, 356 Mo. 61, 201 S.W.2d 274. However, in view of the complete lack of proof in this record to sustain the jurisdictional averment in question and in view of defendants’ diligence in preserving the point throughout, we are disinclined to indulge this presumption in favor of appellant here. Necessity is the underlying basis for the sovereign’s exercise of the power of eminent domain. No such necessity can exist until it be shown that the parties cannot agree in private negotiation. Our landowners should not be haled into court, nor should dockets be burdened with such litigation until it is made to appear affirmatively that negotiations have been attempt-’ ed and have failed.

Appellant further contends that it is not necessary for the appellant to make an offer of a certain sum of money in order to constitute an attempt to agree, and that the statutory requirement of an attempt to agree could he satisfied by offsetting benefits. This proposition may well be true, but even so, it must be proved when the required statutory allegation is put in issue as it is here.

Accordingly, we'rule that not only is it necessary for the condemning authority to allege an inability to agree upon proper compensation to confer jurisdiction for the filing of a petition in condemnation, but that it is equally necessary that such allegation be proven on the record in order that jurisdiction be not thereafter ousted. It follows that on this point also the trial judge properly granted a new trial, and for this additional reason the cause must be remanded, in which case such jurisdictional fact can be accomplished prior to further trial proceedings.

Respondents also raised questions by their answer brief in the form of motions attacking the sufficiency of the statement of jurisdiction, alleging improper statement of facts and lack of jurisdiction. Suffice it to say that we find these motions immaterial and without merit, and we overrule them without discussion inasmuch as we here sustain the trial judge in all relief requested by and granted to respondents. The order and judgment of the trial court granting defendants a new trial is affirmed, and the cause is remanded for proceedings consistent with this opinion,

All concur.

SPERRY, C., not participating.


text:
    Louis R. WEST, Plaintiff-Respondent, v. JACK COOPER TRANSPORT COMPANY, a corporation, and Stephen Douglas Hinshaw, Defendants-Appellants.
    No. 23625.
    Kansas City Court of Appeals. Missouri.
    Oct. 7, 1963.

      Ike Skelton, Jr., N. R. Bradley, Ike Skel-ton, Lexington, for appellants.
    Albert Thomson, Harold T. Vandyke, John R. Cleary, Kansas City, for respondent.
   ANDREW JACKSON HIGGINS, Special Justice.

This is a suit for damages for personal injuries submitted under the Kansas Last Clear Chance Doctrine. Judgment was for plaintiff for $15,000.00, and defendants have appealed.

On May.23,1958, plaintiff was operating a Plymouth- station wagon northbound in the east lan.e,of U. S. Highway 69, This highway was- an asphalt or “blacktop” road. There had been rain .during the day. There was some dirt on the roadway and it was wet and slick. As plaintiff drove northward and at a point about 21/2 miles south of Stanley, Kansas, the road was downgrade. It curved to the left, then to the right, (in an “S”), and then straightened out for a. distance of about one and one-half blocks. The time was about 6:50 P.M., and although lights were in use, it was not yet dark.

Plaintiff stated that he met a southbound car which forced him off the roadway and onto the shoulder; that when he came back to the roadway his car skidded and spun on the road; that it went off on the east side of the road where its right side went against a steep embankment; that after a final spin the car came to rest with its rear against the embankment; that its front headed uphill to the southwest near the center of the highway, and it blocked the east side of the road. He stated that he attempted to drive the car forward and turn it to the right so as to, get into his traffic lane; that it went up a few feet; that he killed the engine and the car then fell back into its former position ; that he saw the lights of defendants’' northbound tractor-trailer come around the curve to the south; that he “froze” to the steering wheel and watched its approach; that it seemed as though he were frozen; that the tractor-trailer was sliding and coming down the road broadside; that it struck his car on the left side and knocked it farther north and downhill 10 to 20 feet; that a southbound tractor-trailer had stopped headed toward him and he judged its distance as some 150 feet north of his car.

There was testimony to the effect that defendants’ tractor-trailer came to rest crosswise of the highway; that the car when struck was north of a certain tree which was struck and barked by the trailer; that the car when struck was knocked farther northward from the tree.

John H. Allen, a registered land surveyor, stated that, he surveyed and measured the distance from the above mentioned tree-south, to the-curve and that such - distance was 213 feet; that he could see from the point so determined northward to the tree, and could see the roadway, between and what might be in or on it; that the grade of the-roadway there is 5.84%.

Frank Wessling, an officer of the Kansas City, Missouri, Police Department, testified as to stopping distances of a tractor-trailer such as the one here involved. He stated he had 16 years of experience in investigating more than 10,000 traffic accidents; that he had attended traffic schools and had studied accidents and their cause and prevention; that he had ridden in the cab of tractors similar to the one here while conducting experiments in studying traffic accidents. He stated that a truck such as driven by defendant when travelling at 30 miles per hour, (the speed indicated by the evidence), would travel 45 feet per second; that stopping distance under conditions as shown here would be 88 feet after application of brakes, and that total stopping distance would have to include reaction time; that reaction time for an average person is % second. There was evidence that Hin-shaw had his foot on the brake of his tractor prior to the time he decided to attempt to stop. The witness stated that this fact would cut the reaction time to ^ second during which time the vehicle would travel 22 feet, and that stopping distance of the truck including such reaction time would then be 110 feet. He also stated that with the truck 200 feet south of the Plymouth, a point when and where the driver could have seen the Plymouth on the highway in a position of danger, the truck could have been driven to the left of the car and thus have avoided the collision. According to some of the testimony it would have been 200 feet to the Plymouth and another 150 feet to the other tractor.

Charles Gomerdinger testified he was in a car following a tractor-trailer southbound on 69 highway. He stated that from his view north of the accident he saw plaintiff’s car spinning on the road; that it went into an embankment and set out in the highway from east to west; that the truck ahead of him stopped 60 to 80 feet north of plaintiff’s car. He admitted having previously stated that distance to be 200 feet. He stated that he saw defendants’ truck come from the south around the curve to the south and saw it start skidding; that it came down the highway broadside and struck the automobile.

Defendant Hinshaw stated that when he drove the tractor-trailer around the curve he could see down the road from 100 to 200 feet; that he saw plaintiff’s car across the roadway 100 feet north; that he then had his foot on the brake and promptly applied same; that the tractor-trailer began to skid and slid sidewise down the highway. He stated that he saw a tractor-trailer parked farther down the road and did not think he could pass the station wagon to the west without striking the other tractor parked to the north.

Robert B. Lund, Trooper, Kansas Highway Patrol, qualified as an expert on traffic control and accident prevention with many years experience and training. He gave his opinion that defendants’ tractor-trailer going 30 miles per hour could not have been stopped under the conditions existing at the time and place of the collision within less than 185 feet including reaction time.

This case is governed by the Last Clear Chance Doctrine of Kansas which differs from the Humanitarian Doctrine of Missouri.

Definitive statement of the Kansas Last Clear Chance Doctrine appears in a 1958 case as follows; “The essential elements under the doctrine of last clear chance are: (1) The plaintiff by his own negligence placed himself in a position of danger; (2) that the plaintiff’s negligence had ceased; (3) that the defendant seeing the plaintiff in a position of danger, or by the exercise of due care should have seen the plaintiff in such position, by exercising due care on his part had a clear chance to avoid injuring the plaintiff; (4) that the defendant failed to exercise such due care; and (5) as a result of such failure on the defendant’s part plaintiff was injured.” Gibbs v. Mikesell, 183 Kan. 123, 325 P.2d 359, 1. c. 366. This or virtually identical statement of the doctrine has been adopted by the Missouri courts in cases arising under Kansas law as does the instant case.

Defendant contends that plaintiff failed to state a last clear chance case because he pleaded that he was not negligent in a prayer for relief on primary negligence which was coupled with allegations and prayer for relief ttnder last clear chance.

Without setting forth plaintiff’s petition in detail, suffice it to say that plaintiff in the first instance pleaded that he was free from negligence. He also pleaded a denial of any negligence and stated that if he was guilty, his negligence had ceased prior to the collision and in time for defendant to have acted so as to avoid injuring him. The Supreme Court of Kansas was faced with a similar pleading in Gibbs v. Mikesell, supra, and held, 325 P.2d 1. c. 366-367, that pleading primary negligence and the last clear chance doctrine in the alternative was not repugnant. In Eubank v. Kansas City Terminal Ry. Co., 346 Mo. 436, 142 S.W.2d 19, the Supreme Court of Missouri affirmed a judgment for plaintiff under a submission of primary negligence and negligence under the Kansas last clear chance doctrine. We view plaintiff’s petition here in light of these authorities and hold that such alternative pleading does not defeat plaintiff’s statement of a cause of action.

Defendants next contend that plaintiff made no case because the evidence fails to show when plaintiff’s negligence ceased, when his peril became inescapable, where defendants’ truck was at such time, and what defendants could have done to avoid the accident. It is the law as previously stated that the negligence of plaintiff which placed him in a position of danger must have ceased before the last clear chance doctrine may be effectively invoked. It is also true that if plaintiff’s negligence continues until the collision occurs, or to a time after which defendant could not in the exercise of due care avoid the collision, then, no submissible case is made. In other words, so long as plaintiff’s negligence continues it is concurrent with that of defendant, it has not ceased, and thus, an essential element of plaintiff’s case would be missing.

It is plaintiff’s theory here that he came into a position of inescapable danger or peril at a point when defendants’ tractor-trailer was 200 to 213 feet south and upgrade of plaintiff; that defendants could swerve to avoid within that distance, or could then stop within 110 to 185 feet. There is evidence to that effect and there is also evidence to the effect that plaintiff’s position was then clearly visible to defendant. It is also shown that plaintiff’s car was blocking the east side of the road. Obviously, if Hinshaw continued unchecked on his course, collision would result. These circumstances placed a duty on defendant to stop or swerve in order to avoid collision, if possible, which defendants did not do here. Defendants contend that even so, plaintiff was not in a position of danger or inescapable peril because he could have yet escaped from his vehicle and that it was his duty to do so; that failing so to do, his negligence continued, thereby excusing defendants. In this connection defendants cite Vail v. Thompson, supra. There, plaintiff drove his vehicle onto a railroad crossing. A train 400 feet away was approaching at 30 miles per hour. It would have taken the train 9 seconds to reach plaintiff. The court there held that plaintiff had sufficient time to esc-ape from the car but did not do so and that his failure made him guilty of contributory negligence as a matter of law.

In the case at bar there is evidence to show that plaintiff had “a very few seconds” after he came to a stop in which to act. The evidence further shows that plaintiff “froze” or was “frozen” to the wheel as the tractor approached. In the Vail case the court said, 232 S.W.2d 1. c. 495, that plaintiff could simply have stepped from the car to the side of the track and the train would have carried the car away from him. He would have thus been in a place of safety. Here, the evidence shows there to have been a steep embankment to the rear of plaintiff’s car. Likewise, defendants’ vehicle is shown to be skidding and bearing down on plaintiff, ultimately striking and knocking him 10 to 20 feet down the road. Whether plaintiff could have stepped out and up the bank or have otherwise gotten to a place of safety in view of the tractor-trailer coming crosswise down the road at him is a matter of speculation. It is just as reasonable for him to have believed that he was safer inside the automobile and better protected there than on the roadside. It appears that whether he could have made a decision to run within the time available and whether he should have attempted to do so were for the jury to say upon consideration of all the facts in evidence. In Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P.2d 33, plaintiff was a passenger in a Dodge automobile that collided at an intersection with a Ford automobile. After this collision and while the Dodge was standing still on the east side of the slab, defendant’s bus struck the Dodge in the rear. As here the defendant contended that plaintiff was guilty of continuing contributory negligence as a matter of law. The court there stated, 10 P.2d 1. c. 36: “This situation furnished a fair talking point before the jury, but, when we consider that the driver of the Dodge would need a few moments, at least, to decide what to do in such unusual circumstances, it cannot be said that contributory negligence was shown as a matter of law.” In Fitzgerald v. Thompson, 238 Mo.App. 546, 184 S.W.2d 198, a situation somewhat analogous to the case at bar existed. There, as plaintiff neared a railroad crossing she knew a train was coming. She proceeded on toward the tracks and when about 15 feet from them she stopped her car and killed her engine. She tried to start the car and as she pushed on the starter the car lurched forward coming to rest on the track. She then looked up and saw the train coming and fainted. She of course made no effort to get out. The court in that case refused to convict plaintiff of continuing negligence. We feel that plaintiff’s being “frozen” in the case at bar is akin to that situation. Upon a review of the evidence we cannot say that plaintiff was guilty of continuing negligence as a matter of law in not having acted differently.

In connection with Instruction No. 1, plaintiff’s verdict directing instruction, it is first argued that it was not authorized by the pleadings because plaintiff had pleaded that he was not guilty of negligence. We have previously discussed plaintiff’s pleading and held it to be a proper alternative pleading. What we said there disposes of this contention adversely to defendants.

It is next contended that there is no evidence to support the instruction because there is no evidence as to when plaintiff’s peril became helpless and inescapable. We have previously discussed certain of the evidence on this question and we hold that there was evidence from which the jury could properly decide the question.

Defendants contend that the instruction tells the jury that plaintiff was in a position of peril when his car stopped against the bank thereby withdrawing that issue from the jury. After hypothesizing other elements of plaintiff’s submission the instruction continues: “ * * * and • if you further find that at the time plaintiff’s Plymouth automobile described in evidence came to a stop on the east side of the highway at the place described in the evidence, the plaintiff Louie West was in a position of imminent peril of being struck and injured by the defendants’ tractor and trailer, and that the defendant, Hinshaw, by the exercise of ordinary care could have seen the plaintiff in the aforesaid position of imminent peril, if you so find, * * (Emphasis supplied.) We think the language in this particular to be sufficiently clear in that it permits the jury to make a finding and does not constitute a direction. Certainly we cannot say that such language withdrew this finding from the jury.

Defendants next contend that the instruction is erroneous because it fails to require a finding that plaintiff’s negligence had ceased. In Eubank v. Kansas City Terminal Ry. Co., supra, plaintiff was operating a streetcar on Southwest Boulevard, Rosedale, Kansas. Defendant was operating an engine on tracks which intersected the streetcar tracks. Plaintiff stopped about 12 or 14 feet from the railroad track within the distance required by statute. He looked and saw the engine and thinking it to be standing started forward and was caught and struck on the crossing. Defendant attacked the last clear chance instruction, inter alia, on this same ground. In that case the instruction submitting last clear chance hypothesized the facts of the case in much the same manner and form as in the instant case. At 1. c. 26 of 142 S.W.2d the court discussed the element of plaintiff’s contributory negligence as ceasing when plaintiff is in a position of imminent peril and held that the question was for the jury. We have previously discussed both the element of plaintiff’s negligence ceasing and the element of plaintiff’s position of peril and, under the facts and circumstances of this case, we think the instruction adequately submitted this question to the jury.

It is also contended that the instruction does not require a finding that defendants could have avoided the collision and that defendants could have swerved without injury to other persons and property. We have mentioned the evidence relating to sight and stopping distances and the opportunity of defendants to pass to the west of plaintiff’s vehicle. From that portion of the instruction previously set out the instruction continues: “in time thereafter, if so, by the exercise of ordinary care, and by the use of the appliances on said tractor-trailer, and with reasonable safety to himself and defendants’ tractor-trailer, to have stopped said tractor-trailer, if you so find, or to have slackened the speed thereof sufficiently to have avoided striking plaintiff’s car, if you so find, or to have operated said tractor-trailer on the west side of the highway and around plaintiff’s automobile and in a manner so as to have avoided collision with the plaintiffs automobile, if you so find, * * (Emphasis added.) Certainly this is sufficient to require a finding that the defendants could have avoided the collision. It is likewise sufficient to require a finding that defendants could have swerved the tractor-trailer without injury to Hinshaw or the tractor-trailer. In this case there is evidence tending to show that the west side of the road was not obstructed as to Hinshaw in any manner from a point 200 to 213 feet south of plaintiff to a point as much as 200 feet to the north of plaintiff. On this point we believe the case of Brown v. Callicotte et al., Mo., 73 S.W.2d 190, 195, to be pertinent. There the court said: “Moreover, the instruction required a finding that Callicotte could have swerved to the north with safety to himself and his automobile, which necessarily included a finding that he could have done so without colliding with the parked cars, because otherwise he could not have done so with safety to himself and his car.” In view of the facts in the instant case we think the finding required is also sufficient to cover the question of injury to other persons and property on the highway.

Finally, defendants claim error in the use of the word “imminent” in Instruction No. 1, contending that the doctrine limits the submission of plaintiff’s peril to a use of the words “helpless” or “inescapable”. There are many cases in which plaintiff’s peril or danger is so described. We are directed to no case, however, in which the use of “imminent” has been held prejudicial. We have previously noted that the essential elements of a last clear chance case are expressed in terms of plaintiff’s “danger”, or his “position of danger”, without the use of any such characterization. In cases in both Kansas and Missouri the word “imminent” has been used to describe and submit plaintiff’s peril or danger. Leinbach v. Pickwick Greyhound Lines, supra, 10 P.2d 1. c. 42; Eubank v. Kansas City Terminal Ry. Co., supra, 142 S.W.2d 1. c. 26. We reject this contention.

We would not recommend Instruction No. 1 as a model. We believe, however, under the facts in this case, that it contained adequate hypothesis to require a jury finding of all the essential elements of a Kansas last clear chance case, and we therefore find it free of prejudicial error.

Error is predicated on the fact that plaintiff’s car had swerved off the road, then came onto the road and thence into an embankment from which it was partially driven, and then fell back; that the medical witnesses could not properly take such first accident into their consideration of injuries caused by defendants in the collision or second accident; that the hypothetical questions asked of such witnesses were error and that there is no showing as to which accident caused plaintiff’s injuries. Doctors Friedman and Lichtor testified as to plaintiff’s injuries, their nature and extent, and that they could have been and were due to the collision. There was no evidence whatsoever tending to prove that plaintiff was injured upon being forced off the pavement and plaintiff testified that he was “shook up” but not injured when he came against the embankment prior to being struck by defendants. The whole of the evidence was before the jury as to the extent and cause of plaintiff’s injuries and in view of the record here we find no reason to criticize this phase of the trial.

It is urged that there was error in receiving testimony from witnesses Harker and Allen as to visibility and sight and as shown by photographs, measurements and sightings taken at the accident scene. This is based on a contention that conditions were not shown to be substantially the same at the time such photographs, measurements and sightings were made as when the accident occurred. The evidence shows that these matters and the conditions under which they were made were explored thoroughly before the court and jury by direct and cross-examination. Under the facts in this case we believe the judge’s rulings were well within his discretion, and that any differences in conditions were proper questions for the jury in determining the weight to be given such evidence.

Defendants contend that the testimony of Officer Wessling upon hypothetical question should have been stricken because it did not take into consideration the curve and mud on the pavement and their effect on braking. The question assumed the pavement to be of macadam, wet and slippery. The witness answered that all roads are slick and slippery when wet and defendants made no objection at that time to the failure to include mud in the assumption. Defendants cross-examined about the effect that mud would have on defendants’ braking and the witness stated he would need to know the location and extent of the mud. Cross-examination continued extensively, and it was eventually directed by counsel that the witness consider the curve in question and that mud covered 5 feet of the east half of the pavement. The witness thereafter answered that it would make slight difference; that the mud only affected a minute portion of the 88 feet of braking distance. We think that contention should also be denied.

Finally, it is urged that the verdict is so excessive as to be a result of bias, passion and prejudice. It is clear under the law that unless the verdict is so out of proportion as to shock the judicial conscience it must stand. There was medical testimony to the effect that the spinous processes of plaintiff’s first sacral segment were fractured; that he suffered disability and recurrent pain as a result of the injuries he received, and that conditions resulting therefrom would be permanent. Dr. Friedman’s testimony to that effect was positive. Dr. Lichtor prescribed a back support or brace to alleviate plaintiff’s condition, which plaintiff was wearing at the time of trial 3[4 years after the injuries were received. Plaintiff had expended considerable sums of money for medicines, medical treatment and hospitalization. In addition it appears that plaintiff lost 7 weeks of work wherein he could have earned $125.00 per week. Under the evidence in this case we cannot say that the judicial conscience is shocked by a verdict for $15,000.00.

The judgment is affirmed.

All concur.

SPERRY, C., not sitting.

      . Additional frequently cited definition by Kansas courts consistent with this statement may be found in Jamison v. Atchison, T. & S. F. R. Co., 122 Kan. 305, 252 P. 472; Goodman v. Kansas City, M. & S. R. Co., 137 Kan. 508, 21 P.2d 322; Ross v. Fleming, 165 Kan. 279, 194 P.2d 491.

      . See for example Vail v. Thompson, 360 Mo. 1009, 232 S.W.2d 491; Marshall v. St. Louis-San Francisco R. Co., Mo., 234 S.W.2d 524; Foster v. Kansas City Southern R. Co., Mo., 306 S.W.2d 521; Fitzgerald v. Thompson, 238 Mo.App. 546, 184 S.W.2d 198.

      . See also Hein v. Peabody Coal Company, 337 Mo. 626, 85 S.W.2d 604, 611; Day v. Banks, Mo.App., 102 S.W.2d 946, 953.


author: CROSS, Judge.

text:
    Merrie Dean ELLMAKER, Plaintiff-Respondent, v. The GOODYEAR TIRE & RUBBER COMPANY, a corporation, and William T. Buckner, Defendants-Appellants.
    No. 23824.
    Kansas City Court of Appeals. Missouri.
    Oct. 7, 1963.

      John M. Kilroy, John R. Caslavka, Kansas City, Ike Skelton, Lexington, for appellant.
    Robert S. McKenzie, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, William Aull, Jr., Aull & Aull, Lexington, for respondent.
   CROSS, Judge.

Plaintiff Merrie Dean Ellmaker maintains this suit to recover damages for the wrongful death of her deceased husband, James Robert Ellmaker. Defendants Goodyear Tire & Rubber Company and William T. Buckner have appealed from a judgment adverse to them entered on a jury verdict awarding plaintiff damages in the sum of $13,500.00.

When this suit was originally filed, Ernest R. Kohlstaedt was named as a third defendant, but died during pendency of the action and Ella Kohlstaedt, administratrix of his estate, was substituted as party defendant in his stead. The jury in returning its verdict found the issues in favor of the substituted defendant and against plaintiff. No appeal has been taken from the judgment entered on that phase of the verdict.

The decedent came to his death by a tragic incident occurring on October 27, 1960, in Lexington, Missouri. The essential facts and circumstances leading to the casualty are here set out.

At the time of and prior to his death, decedent operated a Sinclair service station in Lexington, Missouri, where he resided. Defendant Goodyear Tire & Rubber Company, a foreign corporation, owned and operated the “Goodyear Service Store” in Lexington, an establishment which sold tires, batteries and other automotive equipment, at both wholesale and retail, and rendered service in connection therewith. Defendant Buckner was an employee of Goodyear, and managed its Lexington Store. Buckner also resided in Lexington.

The Goodyear store is located and fronts south on Main Street in Lexington. Main Street runs east and west. In the extreme rear of the store, there is a basement room which is used as a service garage or tire changing shop and for storing tires. This service area opens to the north and faces upon a public alley running east and west. The vehicular entrance to the service shop is a door facing north reached by a rather steep driveway from the alley. The shop is 20 feet long and wide enough to accommodate one automobile and the storage of some tires in racks along the side walls. Patrons who come to this shop for service enter it from the alley by way of the driveway.

Decedent was a wholesale customer of Goodyear and regularly purchased tires at Goodyear’s store for resale at his Sinclair service station. On the morning of his death decedent went to the above described service area of the Goodyear store for the purpose of buying some tires. He found that Buckner was engaged in servicing the automobile of another customer, the above referred to Ernest R. Kohlstaedt, who had previously arrived to purchase some tires and have them installed. Decedent waited in the service area for Buckner to finish that particular job. We digress here to narrate the circumstances of Kohlstaedt’s arrival and the presence of his automobile in the shop inasmuch as that vehicle was the instrumentality of plaintiff’s demise.

At some time around ten o’clock on the morning of October 27, 1960, Kohlstaedt drove his 1960 Chevrolet automobile along the alley in the rear of the Goodyear store, turned into the driveway from the alley and drove (forward) into the service shop “right in the basement there”. Buckner waited upon him, sold him two tires for the rear wheels, and then directed him to reverse the position of the car by backing' it into the alley, turning, and then backing it into the shop so that the rear wheels would be positioned at the tire jack. Buckner jacked up the car, removed the rear wheels, mounted the new tires, replaced the wheels and removed the jack. He next tested the car’s battery, found it to be defective, and installed a new one at Kohlstaedt’s direction. Then, at Buckner’s request, Kohlstaedt got in the car and started up the motor in order to see if the new battery worked properly. After stopping the motor Kohlstaedt went upstairs to pay his bill, leaving his automobile in the service area.

Buckner then undertook to fill decedent’s order for new tires. Both men proceeded to a tire storage room which was immediately adjacent to the rear or south end of the service area but located on a higher level, Access from the service area to the tire storage room was by a flight of three stair steps. Decedent and Buckner picked out the new tires desired and set them aside. Then the two men went back down the stairs to the service area to look at some “recaps” which were kept on both-'sides of the walls “down where the car was parked”. Being unable to find the particular “recap” decedent was looking for; the two men, who were then standing on the right hand side of the car next to the east wall, started to go back up the stairs to get the new tires from the storage room and make out the bill on them. The automobile was still in the same position it was in when Buckner installed the tires on it, and was entirely in the service area. The rear end of it was several feet from the steps.

According to Buckner’s testimony, he was in the lead as the two men walked to the rear of the car and toward the steps. The car was not moving as he passed its right rear corner. When he reached the first or second step leading to the tire storage room he heard decedent say something to the effect that the car was moving. Buckner turned around, saw the car moving slowly and saw decedent holding onto the left side o.f the rear bumper trying to hold it back. Buckner immediately stepped down and took hold of the right side of the bumper but the car continued to move forward, out of the building, down the driveway and toward the alley. At some point which is not clear from the evidence, but which appears to have been someplace between the general vicinity of the door and halfway down the driveway, decedent let go of the bumper and ran around to the left side of the car. When the car was about “halfway down the decline”, it was going so fast Buckner had had to let go of the bumper to keep from being “dragged” because he couldn’t “keep up with it”. He stumbled a few steps and by the time he straightened up the car had run into and across the alley and hit a utility pole on the north edge of it. He was unable to state exactly where decedent was at that time except that “he had both hands on the steering wheel”.

Apparently the only witness who actually saw the automobile strike the pole was John L. Painter, who was standing in the door of a lumber yard which faces the alley. The witness’s attention was attracted either by Bucktier’s yelling or by the noise of the car, and he looked up in time to see the left door of the car hit the utility pole. Decedent was crushed between the door and some adjacent part of the automobile. Immediately after the car stopped, he was found lying in the front seat unconscious, and was dead upon arrival at the hospital. The cause of his death was stated as suffocation resulting from a ruptured lung.

The floor of the service area slopes 4)4 inches in its total length of 20 feet from the rear at the steps to the door opening onto the driveway. The driveway from the door opening to the south side of the alley has a length of 41 feet and drops 6)4 feet in that distance. The car traveled a total distance of approximately 60 feet to collide with the utility pole.

Buckner admitted that Kohlstaedt had backed the car in the service area as he (Buckner) directed; that at no time did he ever tell Kohlstaedt to set the brakes or put the car in gear; that no chock or other device was used to prevent the car from rolling; and, that when he was installing the tires and battery on the car, he was “in charge of where the car would be and how it would be handled”. Kohlstaedt, when asked (in a deposition read in evidence) whether the car was in gear when he started the motor after the new battery was installed, made this answer: “It surely wasn’t in gear, otherwise it wouldn’t have rolled— it wouldn’t have got there”. -Examination of the automobile after the crash disclosed that the emergency brake was not “on” and the gear lever was in “neutral”.

The case was submitted on behalf of plaintiff by Instruction P 1 permitting recovery under the humanitarian doctrine, and by Instruction No. P 2 which hypothesizes primary negligence on the part of defendants in jointly causing or permitting the Kohlstaedt automobile to roll forward from a stationary position in the service area into collision .with the utility pole and to thereby inflict decedent with fatal injuries.

No question is raised by the appealing defendants as to the sufficiency of evidence to establish negligence on their part. Complaining of other matters, they contend that the trial court should have directed a verdict in their favor because -(1) plaintiff did not appropriate the cause of action for her husband’s death within six months, (2) .decedent was guilty of contributory negligence as a matter of law in attempting to stop the rolling automobile, and (3) there was insufficient evidence- to submit the case on the humanitarian doctrine.

Some additional facts pertinent to the history of this case are necessary for dis•cussion of defendant’s contention that plaintiff failed to appropriate her cause of action within six months after her husband’s death, and are here set out. The present suit is the second one instituted by plaintiff on the cause of action for her husband’s death. Her first action was filed in the Circuit Court of Jackson County, Missouri, on .April 11, 1961, and within six months from the death of her decedent. Although defendant Goodyear Tire & Rubber Company, as a foreign corporation authorized to do business in Missouri, maintained its designated service agent and registered agent in St. Louis, Missouri, the summons issued for the corporation was served on it in Jackson County, Missouri, where it mainr tained a business office. Summonses were duly issued and served on defendants’Buckner and Kohlstaedt in Lafayette County, Missouri, the county of their residence. All three defendants, appearing specially, filed motions to quash the returns of summons and to dismiss plaintiff’s petition, on the grounds that summons upon Goodyear in Jackson County was unauthorized because its registered agent did not reside in Jackson County, but instead was a citizen and resident of St. Louis, Missouri, and that, therefore, the court acquired no jurisdiction over the person of defendant corporation or either of the individual defendants, both of whom resided in Lafayette County, Missouri. The circuit court sustained defendants’ motions and dismissed the suit on the ground that its' venue was improper. Thereafter, plaintiff'unsuccessfully sought issuance of a writ of mandamus by the Supreme Court' to compel the Circuit Court of Jackson County to accept jurisdiction and try the case.

The present action was filed in Lafayette County on September-27, 1961, a date which is more than six months but less than one year after the death of plaintiff’s husband. Obviously, the suit was filed within one year after dismissal of the Jackson County suit. The petition as filed was in two counts. In the first count plaintiff asserted her cause of action as the surviving widow, alleging she had appropriated the action by filing the action in Jackson County within six months from the date of her husband’s death, and that she “refiles” her cause of action within one year after the dismissal of that suit. In the second count the two minor children of decedent were named as alternative plaintiffs and it was alternatively alleged that, in the event it should be held that their mother had not appropriated the cause of action, they, the children, were so doing by filing the suit more than six months after, but within one year from the date of their father’s death. Defendants filed motions to dismiss both counts of the petition, in which they attacked the capacity both of the mother and of the children to bring the action. The trial court sustained the motions to dismiss count two and overruled motions to dismiss count one. The case went to trial and judgment on count one as hereinabove described.

Plaintiff’s right, as a widow, to sue for the wrongful death of her husband is conferred by Section 537.080 V.A.M.S. and is limited to the period of six months after the date of such death by the effect of subdivision (2) of the cited statute which provides, “[i]f * * * she fails to sue within six months after such death, then (damages may be sued for and recovered) by the minor child or children of the deceased * * * And, if it be the case that plaintiff as such widow had “commenced” such action within six months after the date of her husband’s death, by filing the suit in Jackson County, and thereafter suffered a nonsuit, it was her legal right to “commence a new action from time to time within one year after such nonsuit suffered”. Section 537.100 V.A.M.S.

Consequently, the question raised by defendants’ first assignment is whether the prior suit filed by plaintiff in Jackson County — within the time authorized by law, but in the wrong forum — shall be deemed to be the “commencement” of an action for her husband’s death within the meaning and purview of the applicable statutes, such as to validate the instant suit.

The general rule pertaining to the present question is stated in 34 Am.Jur., Sec. 284, p. 230, as follows: “Where the statute provides in substance that if an action is begun in due time and the judgment therein is reversed or judgment goes against the plaintiff on any ground not affecting the merits, a new action may be begun within a stated time, it is held with substantial unanimity that the running of the statute of limitations is interrupted by the bringing of a suit which is dismissed by the trial court or on appeal because instituted in a court having no jurisdiction. This rule is particularly applicable where the choice of a wrong forum is ground for abatement only, and not a jurisdictional defect”. To similar effect is the statement contained in 54 C.J.S. Limitations of Actions § 270, p. 303, that “the suit will be considered filed as where, although it is brought in a county where neither plaintiff nor defendant resides, it is filed in good faith, under an honest mistake, and without negligence or carelessness”.

Missouri courts uniformly follow the foregoing rule quoted from C.J.S. The following statement from Krueger v. Walters, 238 Mo.App. 340, 179 S.W.2d 615, also a case where a widow timely filed a suit in the wrong court for the wrongful death of her husband, essentially summarizes the law prevailing in this state as it affects the issue before us:

“The question to be determined is whether it can be said that plaintiff brought a suit, within the meaning of the statutes, when she filed her suit in the wrong county. The authorities in this State hold, in construing statutes of limitations, that when plaintiff knows that neither he .nor the defendant are residents of the county where the suit is filed, such a proceeding is merely the filing of a pretended suit and it cannot be considered that any suit at all has been filed, the court lacking jurisdiction. Conrad v. McCall, 205 Mo.App. 640, 226 S.W. 265; Mertens v. McMahon, Mo.App., 115 S.W.2d 180; See also Metzger v. Metzger, Mo.App., 153 S.W. 2d 118; Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 145 A.L.R. 1176. However, in the Wente case it was held that if the former suit is filed in good faith, that is to say, if an innocent mistake was made and there was no negligence or carelessness, the suit will be considered as having been filed, although filed in the wrong court. So, the question in this case resolves itself as to whether an innocent mistake was made in the filing of the former suit in the wrong court and that plaintiff was free from negligence in so filing it”.

For an authoritative discussion of the present subject see Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 145 A.L.R. 1176, a case cited and relied upon in Krueger v. Walters, supra. Also see the later case, Tice v. Milner, Mo.Sup., 308 S.W.2d 697. We have examined the cases cited by defendant and find nothing therein contradictory of the rules we have noted above.

Thus, the question of plaintiff’s right to maintain this action under the tolling statute turns upon whether her former suit was filed in good faith, by innocent mistake and without negligence — considerations to be determined under all the surrounding facts and circumstances of this particular case. No cases have been cited, either by plaintiff or defendants, which turn on facts similar to those found in the instant case.

Defendants charge that the filing of plaintiff’s prior action in the wrong court was due to negligence on her part. Therefore, they say, she must be denied the benefit of the tolling statute. Defendants argue essentially as follows: that when the Jackson County suit was filed plaintiff’s counsel admittedly knew that plaintiff, defendant Buckner and defendant Kohlstaedt ■ were residents of Lafayette County, and that defendant Goodyear Tire & Rubber Company was a foreign corporation, authorized to dd business in Missouri; that plaintiff’s counsel, despite their knowledge that Goodyear was - a foreign corporation, made no investigation to determine the location of its registered office or agent and were content to - examine the Kansas City telephone directory to see if the corporation had a business office in Jackson County; that under the provisions of Section 508.010, V.A.M.S. the suit should have been filed either in the county where plaintiff resided and one of the defendants could be found, or in a county in which one of the defendants resided; and, that the residence of a foreign corporation such as Goodyear is the county in which its registered office and agent are located. Therefore, say defendants, the mistake of plaintiff’s counsel in filing the suit in Jackson County was the result of their negligence in failing to make adequate investigation which would have revealed that Goodyear’s legal residence, for venue purposes, was in St. Louis.

Plaintiff submits that defendants’ charge of negligence against her is not well founded “because it is based on the assumption that there was only one possible county of residence of the Goodyear Company with reference to the venue statute and that was the county of its registered agent. The law was far from settled in that regard, however, at the time plaintiff filed her suit in Jackson County”. It is plaintiff’s insistence that the institution of her action in Jackson County was not due to any lack of factual knowledge respecting the residence of Goodyear’s registered office and agent, but that it resulted, instead, through a mistaken but justifiable view of the law, excusable under the circumstances.

It is true, as plaintiff suggests, that there has not been unanimity of judicial opinion in the interpretation of venue statutes applicable in suits wherein a foreign corporation is sued along with other defendants. Courts have continued to be divided as well as vexed by that problem.

At the time plaintiff’s cause of action arose, the majority opinion in State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298, rendered by the Suprema Court en banc in 1954, apparently had settled the law by holding that for purposes of venue the legal residence of a foreign corporation is fixed by the location of its registered office and registered' agent. There were two defendants in the case — the foreign corporation which maintained its legal residence in St. Louis, and an individual defendant who lived in Andrew County.. The court specifically ruled that the suit could be brought either in the City of St. Louis where the corporate defendant resided or in Andrew County, the. residence of the individual defendant, but not in Jackson County, where the corporate'defendant maintained an office and transacted business. The foregoing views were not supported by the entire court. .A strong dissenting opinion was Written and filed expressing the opinion of two .dissenting, judges to the effect that foreign corporations should be considered as having other residences, for venue purposes,'than the county where their registered offices and agents are located, namely, ‘fin-'any' county where such corporations shall have- of usually keep an office or agént' for the transaction o'f their usual and Customary business”.'

■ However, on I)ecemberT2, I960; less than two- mohths after the death of plaintiff’s husband and-prior to-the filing of her petition .in Jackson"County, the question of venüe,' which apparently had been settled by State ex rel. Whiteman v. James, supra, was. revived as a:subject of judicial controversy by the. effect of another Supreme Court en banc decision—State ex rel. Stamm v. Mayfield, Mo.Sup., 340 S.W.2d 631., The adopted opinion, which received the full concurrence of a majority of the court, expressed' disapproval of the majority opinion in State ex rel. Whiteman v. James, supra, insofar as its effect was to hold that for venue purposes' the residence of a foreign corporation was limited to the county where its registered office is maintained. .The-expressed disapproval of the Whiteman, case, however, was not responsive to any live issue presented in the .case, and, consequently, did not have the effect of an authoritative ruling. A separate limited concurring opinion was filed by the author of the majority opinion in State ex rel. Whiteman v. James, supra, in which he states, “As the author of the Whiteman opinion, I would reexamine that case when- the question of its correctness has been challenged and is a live issue, so that it may be considered upon adequate briefs.”

In our foregoing brief references to the Whiteman and Stamm cases, we have not undertaken to reflect the sequences of reasoning or the bases of legal authority underlying the opinions rendered therein. It has been our purpose only to demonstrate that when plaintiff’s counsel were confronted with the necessity of deciding where plaintiff’s case might or should be filed, there was substantial reason and reasonable cause for them to believe that- the Supreme Court had held or would ultimately hold that a foreign corporation- could-be- sued along with other defendants in a county in which it maintained an office or transacted business, and that, perforce, plaintiff, could properly maintain her suit .in Jackson County. The opinion in the Stamm case, the latest expression on the subj ect, might so .indicate. We believe that lawyers- .and their -client should not-be declared negligent under these circumstances, in following- a course that had the-apparent approval of judicial.opinion, if not authoritative decision.

As a sequel to the Whiteman and Stamm cases, a third case should be noted—State ex rel. Bowden v. Jensen, Mo.Sup., 359 S.W.2d 343. The opinion in that case, dated August 6, 1962, appears to have settled the foreign corporation venue question — at least by majority vote of the Supreme Court —in that it approves the majority opinion in the Whiteman case. Two judges still dissent. The author of the Stamm opinion filed a dissenting opinion in which, he still disapproves Whiteman and would rule that -foreign corporations can be sued with other defendants in counties where they do business. He is- joined in his dissent by the author of the dissenting opinion in Whiteman. The ruling is of no consequence, however, as having any bearing on the point at hand. We are not presently concerned with the state -of the-law as it existed after plaintiff’s suit was filed in Jackson County. Our concern is whether the apparent state of the law prior and at that time was such as to reasonably justify plaintiff and her counsel in their choice of a forum.

For all the reasons set out above we are convinced that defendants’ first point has no merit. The facts and circumstances before us do not convict plaintiff of negligence in filing her suit in Jackson County. We rule that in so doing she appropriated her cause of action.

In their next point defendants submit that the trial court erred in refusing their joint and separate motions for a directed verdict because plaintiff, failed to make a' submis-sible case on the issue of primary negligence. In so contending defendants admit that actionable negligence on their part has been established by the evidence, but insist that plaintiff’s decedent was guilty of contributory negligence as a matter of law because he voluntarily left a place of safety and placed himself in a position of peril in an effort to save property — that is, to prevent damage to the automobile. Defendants concede that the-“rescue doctrine * * * authorizes recovery if the plaintiff is attempting to save life and limb in imminent peril at the time of his reckless acts but has never been extended to the rescue of property”, but they argue there is no evidence in the case to invoke the doctrine because “it is undisputed that no person was in imminent danger of life or limb at the time of the occurrence”.

We recognize that Missouri courts follow the general rule that a person is not excused from the consequences of contributory negligence in voluntarily exposing himself to known peril for the purpose of' saving property. We do not, however, agree that it is conclusively shown by the evidence that the purpose of decedent’s effort to stop the car was to save it from damage. Although the evidence does not disclose the presence of any persons immediately present in the path of or near the automobile as it rolled into the alley, there are abundant facts and circumstances shown from which the jury could reasonably believe that decedent’s efforts were directed to the humane purpose of saving other persons from imminent danger of personal injury or death.

Defendants insist that decedent was not justified in exposing himself to danger because no person is shown to have been in actual danger of being struck by the rolling vehicle. As authority for so contending defendants rely upon Eversole v. Wabash R. Co., 249 Mo. 523, 155 S.W. 419, from which they quote selected, isolated statements which do not reflect the entire sense of the opinion. Our reading of the entire opinion, as a whole, discloses that the Supreme Court did not limit the rescue doctrine so narrowly.

In 19 A.L.R. 11, Anno. — Rescuer—Death or Injury, the meaning and effect of the Eversole opinion is stated to be as follows:

“Before the rescuer is authorized to act on the ground that another is in imminent peril, there must be more than a mere suspicion that accident to some person may follow if he does not act; there must be someone actually in peril, or, at least, the situation must be such as to induce a reasonable belief that some person is in imminent peril; and one who attempts to assert the original negligence of a defendant toward another person who is in peril must show that there was someone in peril, or that he reasonably had the right so to assume or believe. Eversole v. Wabash R. Co. (1913), 249 Mo. 523, 155 S.W. 419, supra”. (Emphasis supplied.)

We accept the foregoing A.L.R. statement as an accurate digest of the meaning intended by the Supreme Court in the Eversole opinion, and believe that it correctly reflects the authoritative rulings of that court on the question involved.

We therefore conclude it is not the law in Missouri that a particular individual must be in actual danger before another person may justifiably act even at his own risk, to avert a casualty. It is sufficient if the situation presented is such as to induce “a reasonable belief that some person is in imminent peril”. The intending rescuer may act, with danger to himself if he reasonably had the right to “assume or believe” that the life or limb of-another person is in peril. “It is sufficient * * * that someone is in danger, although, at the moment the effort to rescue is made, the danger is not imminent to a definite person, and, even though no danger is actually imminent, the rule is applicable to one who acts on appearances, if his conduct is that of an ordinarily prudent man, under the circumstances.” 65 C.J.S. Negligence § 124, p. 738, (Emphasis supplied.)

In Burnett v. Conner, 299 Mass. 604, 13 N.E.2d 417, a decedent wals killed in an attempt to stop a moving automobile under circumstances very similar to those in this case. The defendant car ownei had parked the vehicle in a steep driveway without effectively setting the 'emergency brake and as a consequence it rolled backward down the steep grade toward the street. Decedent, who had been washing the car, first tried, without effect, to hold it back with his hands. As the car continued to roll he opened the left hand door and reached inside, and ran along with'the car as it gathered speed. Finally the car rolled over a -retaining wall, into the street, and landed on-top'of-decedent with fatal result. The Supreme -Court of Massachusetts held that dece'dent -was not' contributorily negligent as:á matter of law, pointing out 'that the situation was one which might result in danger to the lives of passersby on the highway. The court said, “The deceased could be found to have acted instinctively .in-recognition-pf the-possibility that persons passing, by on foot or, in -vehicles would be put in peril.of their lives if the defendant’s automobile continued on its course. *• * ,* It was for the jury to say whether in all the-circumstances the action of the deceased ‘was so rash and -reckless as to preclude a finding that he was in the exercise of due care and was justified’ in his course of conduct.” Also see American Express Co. v. Terry, 126 Md. 254, 94 A. 1026.

In Hollaran v. City of New York, 168 App.Div. 469, 153 N.Y.S. 447, the plaintiff’s 'decedent was killed while attempting to stop unattended runaway horses. The court observed that “The horses were running in a measurably busy street, and there was ample opportunity for harm to come to some one, although the danger was not at the moment imminent to a definite person.” Holding that decedent was not- guilty of contributory negligence as a matter of law the court stated:

“[i]n the case at bar, horses with a street sweeper were dashing ungoverned through the street, and the jury was justified in inferring that, if they continued unchecked, harm would come to some one. Indeed, that apprehension would-come to-the mind of any rational and well-disposed person. The question, then, is whether a man strong in courage and capable physically should, be content to let the probably destructive agency go its way or attempt to stop it. It is not-necessary to let admiration for the deed influence our judgment of its rational nature. In the Eckert [Eckert v. Long Island R. R. Co, 43 N.Y. 502] and Muhs [Muhs v. Fire Ins. Salvage Corps., 89 App. Div. 389, 85 N.Y.S. 911] Cases it is said that the person attempting the service was under a duty tó rescue the person in danger. Such sense of duty is based upon feelings of- 'the -highest value. Whether it' was or was not culpable to obey the prompting to that duty depends upon the conditions présentéd. It is a choice between-strong and brave'men keeping themselves in assured safety and letting the horses make their hurtling way unchecked, or using efforts' as prudently as -the occasion. permits to avert it.- In the present instance, it was a fair question for the jury whether the venture of the decedent wás' justified by the circumstances.”

Also see Bernardine v. City of New York, 268 App.Div. 444, 51 N.Y.S.2d 888.

The general nature of the alley in question and the extent of its use are highly significant factors affecting our decision as to whether the jury could reasonably find that decedent acted in the interest of human beings, and whether, if the jury so found, it was also their province to determine the issue of contributory negligence. The alley is located in the very center of the business district, is four blocks long and is surfaced with asphalt and gravel. The evidence shows that it had the attributes of a reasonably well travelled street and was regularly used as a public way. According to one witness, “there was considerable traffic for an alley”. Another witness testified that the vehicular and pedestrian traffic in the alley was “heavy”. Most of the taxicabs came down the alley in order, to “circle” back to their stand. The garage entrance to a taxi stand is located on the alley; also a taxicab gasoline pump which services all the company’s taxis. Merchandise trucks regularly load and unload in the alley at the back of the stores. “A lot of people” travel the alley regularly to get to a private parking lot. School children from an adjacent area used the alley in going and coming from school. Certain population groups used the alley more than the streets. There is also testimony that “lots of kids” rode bicycles and walked through the alley, and that there are “vehicles coming and going all the time”. Under the evidence, we rule the contention against defendants.

Defendants’ final point is that the court erred in refusing their joint and separate motions for a directed verdict because “plaintiff failed to make a case for the jury against either of these defendants under the humanitarian doctrine”. Inasmuch as we have held that plaintiff made a submissible case on primary negligence, the instant contention is of no significance. This, because of the settled rule that if plaintiff made a case under any theory submitted, defendants’ motion for a directed verdict was properly denied. Nelson v. Wabash Railroad Co., Mo.Sup., 300 S.W.2d 407, 409.

The judgment is affirmed.

All concur, including HIGGINS, Special Judge.

      . Citing Krueger v. Walters, 238 Mo.App. 340, 179 S.W.2d 615.