text:
    Erwin L. LOWES and Mrs. Erwin L. Lowes, His Wife, Plaintiffs-Respondents, v. UNION ELECTRIC COMPANY, a Corporation, Defendant-Appellant.
    No. 32235.
    St. Louis Court of Appeals. Missouri.
    June 14, 1966.
    Motion for Rehearing or for Transfer to Supreme Court Denied July 13, 1966.
    Application to Transfer Denied Sept. 12, 1966.

      William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, J. W. Thurman, Thurman, Nixon, Smith & How-aid, Hillsboro, for appellant.
    Earl R. Blackwell, Hillsboro, for respondents.
   CLEMENS, Commissioner.

This appeal challenges the sufficiency of plaintiffs’ evidence to make a submissible case. The plaintiffs, husband and wife, had spent four years building a new home. When almost completed, it was destroyed by a fire which they attributed to defendant’s negligence. Plaintiffs pleaded and submitted their case on the dual theory that the defendant had negligently maintained its wires and the attachment thereof to plaintiffs’ house and had negligently maintained a defective transformer. The defendant stood on its motion for a directed verdict. Plaintiffs got a $15,000 verdict and judgment, from which defendant appeals. The core of the controversy is plaintiffs’ contention that the fire was caused by a defect in defendant’s electrical equipment.

In reviewing the sufficiency of plaintiffs’ evidence we follow the principles that they are entitled to all reasonable inferences arising from the circumstances shown, that the precise injury complained of need not have been foreseen if the injury was the natural and probable consequence of an act or omission of the defendant, and that plaintiffs are , bound by the uncon-tradicted testimony of their own witnesses. Boyd v. Terminal R. Ass’n, Mo., 289 S.W.2d 33 [1, 3], 59 A.L.R.2d 1222; Klotsch v. P. F. Collier & Son Corp., 349 Mo. 40 (banc), 159 S.W.2d 589 [7].

We will describe plaintiffs’ house and the parties’ electrical facilities as they were before the fire, during the fire, and after the fire.

Before the Fire. The plaintiffs’ three-bedroom, frame house was on a one-acre lot in a large tract subdivision. Mr. Lowes had built and wired the house himself; it was completed except for hanging the interior doors and the door to the basement garage. The house faced east and sat back from the road about a hundred feet. Under the northeast corner of the house there was a basement garage, its entrance facing the roadway. The basement wall on the north and east sides of the dwelling was made of concrete blocks, with an entry way into the garage. Just above the basement wall, the framework of the house extended one foot beyond the concrete wall and the underside of this overhang was lined with plywood. Along the front of the house, just below this overhang, Mr. Lowes had put up some temporary scaffolding so he could reach high enough to apply asbestos siding to the front of the house. Thus, the. scaffolding rested against the basement wall and extended upward from the ground to the top of the basement wall.

At this northeast corner of the house, the defendant’s power supply line joined the plaintiffs’ electrical system. Mr. Lowes had used power tools and a radio inside the house, and defendant had been furnishing electricity to the house for several months. The defendant’s equipment consisted of a pole, a transformer, a three-wire power line, a hanger to attach the power line to the house, and three clip fasteners to attach defendant’s power line to the wires of plaintiffs’ distribution system. Plaintiffs’ equipment, insofar as we are here concerned, consisted of a three-strand wire running through a metal conduit pipe fastened to the side of the house. To understand the parties’ theories of the cause of the fire, we must describe the equipment in detail, beginning at defendant’s pole and moving toward the interior of the house.

The defendant’s pole was near the roadway, 104 feet from plaintiffs’ house. Atop the pole was defendant’s transformer. There are differences in transformers regarding cut-off devices to stop the flow of electricity from the transformer in the event of a short circuit. Some have circuit breakers and some have fuses; other transformers are purposely designed without any type of automatic cut-off device. The record does not disclose which type of transformer this was.

From defendant’s transformer its power line extended under a tree in plaintiffs’ front yard to a point under the eaves at the northeast corner of their house. This power line is called a triplex wire, consisting of two live, insulated wires braided around a neutral, uninsulated, weight-bearing wire. The triplex wire was suspended from plaintiffs’ house by a foot-long hanger, through which its neutral strand passed. At one end of the hanger was a porcelain knob, attached to the house. At the other end of the hanger was an aluminum clamp, consisting of a base and a compression slide. The neutral strand of the triplex wire — but not the energized strands — ran through this clamp and was held in place by pressure exerted between the base and the movable compression slide. Hence, the weight and tension of defendant’s power line was supported by its pole at one end and by its hanger on plaintiffs’ house at the other end. Four feet beyond defendant’s hanger was the upper end of plaintiffs’ conduit, a metal pipe attached to the side of the house. The defendant’s triplex wire extended two or three feet beyond its hanger; plaintiffs’ three wires extended two or three feet beyond the top of the conduit. The two sets of wires looped toward each other, and midway in this loop each of the three strands of defendant’s triplex wire was attached by a clip fastener to each of the three similar strands of plaintiffs’ wiring system. At the plaintiffs’ end of this loop, plaintiffs’ three strands of wire entered their conduit, extended downward through the conduit and followed a bend of the conduit through the basement wall, where the two live strands were attached to plaintiffs’ fuse box inside the garage. These were the physical elements that existed before the fire.

The Fire. The day of the fire was warm, windy and dry. There were “a lot of leaves” on the ground around plaintiffs’ house. About 6 p. m., several neighbors noticed a fire at plaintiffs’ house. Three of them testified: When they arrived at the scene, the whole inside of the house was ablaze and smoke, flames, and pieces of burning wood were coming out of bursted windows and doors. The fire was burning most intensely at the northeast corner of the house. (It was here that the defendant’s triplex wire and plaintiffs’ lead-in conduit had been attached. Here, also, was the open doorway into the basement garage.) This northeast corner of the house had “fallen off,” the exterior wiring had been severed, and the burnt end of defendant’s triplex wire, still energized and flashing, was lying somewhere in the yard amid burning leaves. The defendant’s transformer was buzzing and showing a red signal light, until defendant’s lineman arrived, climbed the pole, and disconnected the transformer. No witness testified about the condition of plaintiffs’ electrical equipment during the fire, nor when or whether the plaintiffs’ scaffolding burned.

After the Fire. Other material evidence concerned the cause and effect of short circuits, the mechanical functions of the electrical equipment, and its condition after the fire. Mr. Lowes arrived at the house two hours after the fire had started. Then or later, he raked through the burnt debris and retrieved several pieces of electrical equipment. Mr. Lowes identified them at the trial and they were examined by plaintiffs’ expert witness, Arthur Patridge, an electrician.

Mr. Patridge first testified in general terms about the cause and effect of short circuits in transmission lines: When a bare live wire comes in contact with another bare live wire or with any grounded conductor, intense heat is created at the point of contact, sufficient to sear the metal and to burn insulation from the wire. When this occurs in a triplex transmission wire, the electricity will no longer pass that point. Instead, the electricity moves backward toward the source until it reaches a point of tension in the wire; heat increases there, the insulation burns off, and another short circuit occurs. After the first short circuit occurs, there will be a series of short circuits moving backward along the transmission line toward the transformer.

Mr. Patridge examined and gave opinions about the various pieces of equipment plaintiff had retrieved from the debris. The severed part of defendant’s triplex wire, which had extended from the transformer to the house, had several places where the insulation had burned off, indicating a series of short circuits moving backward, toward the transformer. As mentioned earlier, the defendant’s triplex wire had been suspended from the house by defendant’s hanger, the neutral strand having been held in its aluminum clamp by pressure exerted between the base and the movable compression slide. After the fire, Mr. Lowes had found the movable compression slide deep in the debris and the rest of the hanger atop the debris. The movable compression slide was partly melted. Mr. Patridge said the damage to the slide was probably caused by a short circuit, but added that it was “either an electrical burn or it is a burn from a very, very high temperature.” By contrast, we have examined the base of the clamp, against which the compression slide had exerted pressure, and find no sign of either friction or burning. Mr. Patridge examined the plaintiffs’ conduit pipe that had come loose from the side of the house. It bore drippings of melted roofing tar running from its base toward its top, indicating that the conduit had come loose from the house and was pointed downward before the house collapsed. Mr. Patridge also examined plaintiffs’ Exhibit I, which Mr. Lowes had identified as the section of his wiring that had been connected with defendant’s triplex cable and had extended through the conduit into plaintiffs’ fuse box. Mr. Pat-ridge identified two burnt places on this piece of plaintiffs’ wire that had been caused by a short circuit or electricity. We quote:

“Q. * * * Now, you, of course, having been in electricity for twenty years, wired some seven or eight hundred houses, you can tell an electrical burn on wire when you see it, can’t you ? A. Yes, I can. Q. Tell me whether or not you see any burns on this wire caused by a short or electricity? A. Well, this is.
Q. All right. A. And that is.”

Mr. Patridge’s testimony was limited to these specific items; he gave no opinion as to the cause of the fire.

As said, the plaintiffs submitted their case on the dual theory that the defendant had maintained its wires in such a manner that a short circuit occurred therein, and that defendant had maintained a defective transformer which failed to cut off the current. Plaintiffs submitted that in these two ways the defendant was negligent, and that such negligence caused the fire. Plaintiffs correctly contend that negligence and causation may be proved circumstantially, citing Young v. Missouri Public Service Co., Mo., 374 S.W.2d 59. This rule, with its limitation, is stated in Miller v. Sabinske, Mo.App., 322 S.W.2d 941 [5, 6] :

“As in non-fire cases, an essential issue [in fire cases] may be established by circumstantial evidence as well as by direct evidence. * * * The circumstantial evidence while not directly proving the existence of the fact must give rise to a logical inference that it exists. [Citing cases.]
“Since there was no eyewitness as to how the fire on plaintiffs’ premises occurred, the circumstantial evidence must be sufficiently strong to indicate to reasonable minds the source and cause of the fire and defendant’s responsibility therefor and not leave those questions to mere conjecture, guesswork or speculation. The evidence should reasonably eliminate the probability of any other source and cause. [Citing cases.]”

Plaintiffs also cite the case of Reichholdt v. Union Electric Co., Mo., 329 S.W.2d 634, referring “to the general rule that suppliers of electricity must use the highest degree of care to keep their wires in such condition as to prevent injury to persons who may lawfully be in close proximity thereto.” That case further held, at 1. c. 638, that the defendant could not be held liable for fire damage caused by defects in the plaintiffs’ own household wiring.

The defendant vigorously contends that the plaintiffs’ evidence failed to show (1) prior defects in its equipment, or (2) that the fire was caused by its equipment. It relies primarily on the principle announced in the case of Craddock v. Greenberg Mercantile, Inc., Mo., 297 S.W.2d 541 [3, 4], where the Supreme Court said:

“The mere occurrence of a fire does not prove, or raise a presumption of, negligence. [Citing cases.] Likewise, the mere occurrence of a fire raises no presumption as to its cause, generally. * * And there must be substantial evidence on both negligence and causation to make a submissible case.”

In the light of these principles, we will examine plaintiffs’ evidence on each of their submissions.

Plaintiffs’ Submission as to Defendant’s Wires and Hanger. First, we will examine plaintiffs’ contention that the evidence showed that defects in the defendant’s wiring caused the fire.

Their basic contention is that the defendant’s triplex wire “sagged excessively,” causing it to sway in the wind so that the insulation was worn off at the point where it was grasped by the defendant’s hanger near the corner of their house, thus causing the initial short circuit; that this short circuit melted the movable compression slide of the hanger, thereby releasing the pressure and allowing the slide and the triplex wire to fall. From this premise, plaintiffs advance two conclusions. First, they say that the heated slide fell to the ground and ignited leaves which were piled around the scaffolding; that the leaves ignited the scaffolding, which set fire to the house at the place where the overhang extended above the scaffolding. Alternatively, the plaintiffs say that when the movable slide melted, this released the defendant’s triplex wire from the clamp; that the triplex wire pulled the conduit loose, fell to the ground, and ignited either the leaves or the scaffolding, thus firing the house. The defendant urges us to note the weak links in this chain of reasoning:

It first attacks the plaintiffs’ basic premise that the initial short circuit was at defendant’s hanger. It does accept plaintiffs’ theory that a series of short circuits moves backward from the first short circuit toward the source of the current, but points out that there were two electrical burns or short circuits in plaintiffs’ own wire in the conduit attached to plaintiffs’ house. Mr. Patridge so testified. Defendant says this shows that the first demonstrable short circuit occurred in plaintiffs’ wiring, not defendant’s. It further contends that the evidence failed to show there ever was a short circuit at its hanger. It emphasizes this evidence: (1) The clamp of the hanger grasped only the neutral strand of its triplex wire, not the energized insulated wires. (2) The base of the clamp, against which the movable slide compressed the neutral strand, showed no marks of friction or burning, which would have occurred if there had been a short circuit at the hanger. (3) The partly melted compression slide was found underneath burnt debris, and Mr. Patridge said alternatively that its melted condition indicated either an electrical burn or a burn from a very high temperature. Further, defendant argues that the plaintiffs’ alternative conclusions are without evidentiary support. It points to absence of evidence to show that (1) there was excessive sagging of its power line or that it swayed, (2) leaves were piled around the scaffolding, or (3) the scaffolding was burning either before or during the house fire.

The defendant argues that the evidence more logically supports two other conclusions : the fire started from a short circuit in plaintiffs’ own wiring near their conduit; or the burning of the house caused the initial short circuiting, rather than the short circuiting caused the fire. We do not recite this argument to imply that defendant had any duty to disprove causation, but only to emphasize the dual burden cast upon plaintiffs when they rely on circumstantial evidence. Their evidence must logically point to the source and cause of the fire and defendant’s responsibility therefor, without relying on speculation; it must also reasonably eliminate the probability of any other source and cause. Miller v. Sabinske, supra; Craddock v. Greenberg Mercantile, Inc., supra.

Thus, plaintiffs were required to show by a logical sequence of cause and effect that a defect in the defendant’s wires or hanger caused the fire. Plaintiffs’ evidence not only failed to show that the initial short circuit was in defendant’s wiring, it more logically showed that its origin was in their own wiring. Plaintiffs were not entitled to go to the jury on this submission. Since they failed to show the element of causation, we need not consider defendant’s additional contention that plaintiffs' evidence failed to show that defendant was negligent.

Plaintiffs’ Submission as to Defendant’s Transformer. We will now consider plaintiffs’ conjunctive submission that defendant maintained a transformer which was defective because it failed to cut off the electricity when the initial short circuit occurred, and that defendant’s negligence in doing so caused the fire. This is based on plaintiffs’ contention that the defendant had a duty to furnish a transformer equipped with an effective fuse or circuit breaker, and that it negligently failed to do so.

No witness described the defendant’s transformer or said whether it was equipped with a fuse or a circuit breaker. We have only Mr. Patridge’s statement that some transformers have fuses, some have circuit breakers, and some have neither. We do not know which of the three types of transformers this was.

No case has been cited referring to the duty of a supplier of electricity to equip its transformers with fuses or circuit breakers. Plaintiffs cite the case of Reichholdt v. Union Electric Co., supra, in which there was nondecisive testimony that the fuses in defendant’s transformer were too heavy. But the defendant there was exonerated on other grounds. Plaintiffs also cite cases annotated at 32 A.L.R.2d 265 et seq., but those cases are not in point. They do not concern transformers; instead, they deal, pro and con, with the duty to have circuit breakers in high-tension lines running over public streets. We need not rule on the general duty of an electrical supplier to equip its transformers with cut-off devices. A judicial determination of that question should wait until it arises in a case where the evidence is fully developed. Our ruling is merely that the evidence disclosed no duty by this defendant to these plaintiffs to equip its transformer with an automatic cut-off device.

Even if we were to assume such a duty, plaintiffs’ case would fail because there was no evidence of negligence. As said by Judge Bennick, speaking for this court in Monsour v. Excelsior Tobacco Co., Mo.App., 115 S.W.2d 219 [3]:

“ * * * and it is also true that, where the negligence relied upon consists of some defect in an instrumentality or device which the defendant has the duty to maintain in a proper condition, the latter is ordinarily not to be charged with negligence for his failure to have remedied the defect unless it is shown that he had actual or constructive knowledge of the same in time to have made the necessary repairs before the occurrence of the accident. 45 C.J. 660.”

We hold that plaintiffs’ evidence failed to show that defendant negligently maintained a defective transformer. They were not entitled to go to the jury on this submission.

The defendant’s after-trial motion for judgment in accordance with its motion for a directed verdict under § 510.290, V.A.M.S., raised the question of whether the plaintiffs made a submissible case on their two submitted assignments, and our inquiry on this appeal is so limited. Schmidt v. Allen, Mo., 303 S.W.2d 652 [9]; Farmer v. Taylor, Mo.App., 301 S.W.2d 429 [9]. Having concluded that plaintiffs’ evidence failed to show that the fire was caused by defectively maintained equipment, the cause must be reversed and remanded, with instructions to enter judgment for the defendant.

PER CURIAM.

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the judgment is reversed and the cause is remanded with instructions to enter judgment in favor of the defendant.

WOLFE, P. J., and ANDERSON and RUDDY, JJ. concur.

PER CURIAM.

Plaintiffs contend that we have overlooked critical evidence. They say' this evidence shows that the two short-circuit burns on the lead-in triplex wire were on defendant’s end of that wire, not on plaintiffs’ end as we said in our opinion. Plaintiffs stress two questions and answers in the testimony of Mr. Arthur Patridge, plaintiffs’ electrical expert. This testimony was linked to Mr. Lowes’ identification of the wires, so we will set out the testimony of both witnesses and for clarity will add emphasis.

As said, Mr. Lowes had salvaged some electrical equipment from the debris. Then, on direct examination:

“Q. Now I’ll show you what’s been marked Plaintiff’s Exhibit I, and ask you to identify this.
“A. That’s the cable that came out of the conduit.”

Thus, Exhibit I was identified as being plaintiffs’ own triplex wire. Then, Mr. Patridge was questioned:

“Q. * * * Now, I want to show you here what’s been marked Plaintiff’s Exhibit I, and it’s been identified, Mr. Pat-ridge, as being that portion of the wire from here over into the meterhead and down through into here. This has been identified as being that wire. Now, you, of course, having been in electricity for twenty years, wired some seven or eight hundred houses, you can tell an electrical burn on wire when you see it, can’t you ?
“A. Yes, I can.
“Q. Tell me whether or not you see any burns on this wire caused by a short or electricity ?
“A. Well, this is.
“Q. All right.
“A. And that is.”

This testimony led us to conclude that the two identified short-circuit burns were on plaintiffs’ end of the triplex wire. Plaintiffs contend we have disregarded the next two questions and answers which, they say, show that the short-circuit burns were on the defendant’s end of the triplex wire:

“Q. Okay. Now, those two that you pointed to there have been identified as being the ends on the other side of the quick fasteners that led up to this fastener hookup, right here?
"A. Uh huh.
“Q. Now, outside of those burns which you said are electrical burns on there, tell me if you find any other shorts or electrical burns anywhere in that assembly?
“A. No, there’s no other in it.”

We cannot so construe these two questions. The words “have been identified” could refer only to Mr. Lowes’ identification of Exhibit I as being the triplex wire that came out of plaintiffs’ conduit. The words in counsel’s question, “the ends on the other side of the quick fasteners that led up to this fastener hookup,” are ambiguous. Plaintiffs now say: “The expert had, of course, pointed out the two electrical shorts on the ends of the wires on the other side of the quick fasteners, the ends on Union Electric’s side of the quick fasteners which were next to its fastener-hanger hook-up, the point where the initial short occurred.” We cannot determine from the transcript where counsel was pointing or where the witness was looking when these questions were asked and answered. The words “here”, “there” and “other side” are meaningless in themselves. During the heated conflict of a trial, ardent advocates are often inclined to assume that we will get the same detailed picture they are witnessing. Not so; our knowledge of what happened in the courtroom is limited to what we read in the transcript. Baker v. Missouri National Life Ins. Co., Mo.App., 372 S.W.2d 147 [11, 12]. Plaintiffs’ conclusion is not supported by the transcript.

Plaintiffs urge us to re-examine Exhibit I, saying it will show that the short-circuit burns are on defendant’s end of 'the triplex wire. The exhibit is a mass of charred wires. It does (contrary to Mr. Lowes’ identification) appear to be composed of not only plaintiffs’ triplex wire, but also 18 inches of defendant’s end of the triplex wire. Mr. Patridge did not mark the exhibit at the places he identified as short-circuit burns; we do not know where counsel and Mr. Patridge were pointing or looking when they did so. We cannot assume the expert’s role of distinguishing short-circuit burns. Assuming, arguendo, that Mr. Patridge did identify the ends of this eighteen-inch section of defendant’s wires as the location of short-circuit burns, still there is nothing to show that this was the place where defendant’s hanger grasped its wires. We have again read the transcript. It is sprinkled with references to exhibits, made without marking or verbally identifying the places to which counsel or the witnesses were referring. Neither the transcript nor the exhibits support plaintiffs’ basic contention that there was a short-circuit burn at the place where defendant’s hanger held its end of the triplex wire.

The record preserved, does not support plaintiffs’ contention.

We have assumed, arguendo, that plaintiffs are correct and that there were two short-circuit burns near the end of defendant’s wires. We have re-examined our opinion in that light. The whereabouts of the initial short circuit is hut one of the links in the chain’ of circumstances by which plaintiffs tried to show that their home was destroyed by defendant’s negligence. As pointed out in our original opinion, plaintiffs further failed to show that this particular short circuit was caused by any excessive sagging in defendant’s line, or that it resulted in igniting the leaves or scaffolding beneath plaintiffs’ house. The assumption would not change the result of our opinion.

The motion for rehearing or to transfer is denied.


source: Caselaw Access Project

author: HOGAN, Judge.

license: Public Domain

text:
    E. L. BISCHOFF, Plaintiff-Appellant, v. Minnie A. DODSON, Defendant-Respondent.
    No. 8461.
    Springfield Court of Appeals. Missouri.
    June 30, 1966.
    Motion for Rehearing Denied July 28, 1966.

      Gerald H. Lowther, James K. Prewitt, Miller, Fairman, Sanford, Carr & Lowther, Stephen L. Hill, Allen, Woolsey & Fisher, Springfield, for plaintiff-appellant.
    B. H. Clampett, W. Ray Daniel, Daniel, Clampett, Ellis, Rittershouse & Dalton, Springfield, for defendant-respondent.
   HOGAN, Judge.

(1) This is an action for personal injuries sustained in the collision of two automobiles. Plaintiff had a verdict and judgment in the sum of $7,000.00; but, upon defendant’s motion, the trial court granted a new trial on the issue of damages only, basing its order upon the erroneous reception of evidence. The plaintiff has appealed from the order granting a new trial. The defendant, though maintaining the new trial was properly granted, questions the submissibility of the plaintiff’s case. In point of fact, the parties have briefed and argued a number of points, but we find it necessary to consider the essential merits of only two of them. They are: 1) whether, as the defendant maintains, the plaintiff was contributorily negligent as a matter of law; and 2) whether the reception of evidence to show the plaintiff’s loss of past earnings was error justifying the grant of a new trial. We need not discuss the procedural aspects of the appeal which the defendant has briefed, though we appreciate her having done so; we think she is entitled to have the submissibility of plaintiff’s case reviewed, at least to the limited extent she requests it. In any case the point is not questioned, and we simply assume that the so-called “submissibility error,” if any, is before us. Gibbs v. Bardahl Oil Co., Mo., 331 S.W.2d 614, 620 [1] ; Millar v. Berg, Mo., 316 S.W.2d 499, 502-503 [3].

The casualty here involved occurred on December 9, 1963, at the intersection of Grant and Mt. Vernon Streets in Springfield, Missouri. Grant runs north and south, Mt. Vernon east and west, and the two intersect substantially at right angles. Grant, which is a favored or “through” street, is 42 feet wide, and Mt. Vernon is 30 feet wide. Both are paved streets. At the southwest corner of the intersection, there is a brick building “approximately 7 or 8 feet” south of the south curb line of Mt. Vernon and about the same distance west of the west curb line of Grant. There is a stop sign for eastbound traffic on the south side of Mt. Vernon, a short distance west of the intersection.

Plaintiff, who described his occupation as being a “truck salesman for Sunray DX Oil Company,” was going north on Grant. He was driving a “ton and a half truck” with an 800-gallon tank on it. This vehicle, with the tank empty, weighed about 6,000 pounds. Defendant was driving east in a Ford station wagon. Both parties described the weather as being “clear,” and there were no vehicles parked around the intersection at the time. The accident happened about 11:15 or 11:20 A.M.

As plaintiff described the sequence of events on trial, he was traveling north on Grant in the east or northbound lane, going “less than 20 [miles per hour], anyway *’ * As one travels north on Grant, the view west on Mt. Vernon is obstructed “until you get * * * approximately to the corner.” When Mr. Bischoff came to a point about even with “the middle of the building,” so that according to his best judgment he was about 20 feet south of the south curb line of Mt. Vernon, he looked to the west and saw no traffic approaching. Plaintiff then glanced to the right, and then, looking straight ahead, proceeded into the intersection. He did not see the defendant’s station wagon prior to the collision, but as the front wheels were “at least on the north curb to the intersection,” Mr. Bischoff “thought a bomb had hit the top of my cab”; the “back end slid around then rolled,” and the truck overturned. After the impact, the Bischoff vehicle was located north of the intersection “several feet on its back.”

Mrs. Dodson, who was on her way to a social engagement, testified that she left her home some distance west on Mt. Vernon Street a short time before the accident, and drove “just straight” on Mt. Vernon to the intersection. When she came to the intersection, Mrs. Dodson “pulled the front up where I could see both ways, north and south, and * * * I didn’t see anything coming, and I just started on out across the street * * * and the next thing I knew, the truck ran over me, that’s all.” Defendant estimated that she had stopped as long as five seconds before entering the intersection, that she was driving only five miles per hour at the time of impact, and that the collision occurred when she was “almost completely across the street.” Mrs. Dodson estimated that she was within 18 inches of the west curb line of Grant when she stopped to look, and that when she stopped, while she couldn’t “swear” she could see two blocks to the south, she could see “ * * * close to it, I’d say.” Defendant “never saw the truck.”

Other evidence was introduced, along with a number of exhibits. We shall note some of this evidence, as it relates to the points raised, in the course of the opinion.

The respondent’s specific point dealing with the submissibility"of plaintiff’s case is that since Mr. Bischoff failed to see the Dodson vehicle prior to the collision, he was guilty of contributory negligence as a matter of law. The burden of respondent’s argument seems to be that plaintiff, if he had maintained a proper lookout, could and should have seen the defendant in time to avoid the collision, and should have acted to do so. In support of her point, defendant cites and quotes from a number of cases which stress the relative and reciprocal nature of the rights and duties created by traffic statutes, such as Lamfers v. Licklider, Mo., 332 S.W.2d 882, Pitts v. Garner, Mo., 321 S.W.2d 509, and Witt v. Peterson, Mo., 310 S.W.2d 857.

We have recited the facts as we have precisely to show that the oral evidence, at least, was irreconcilably in conflict. Clearly, reasonable minds might have resolved the issues of negligence and contributory negligence by concluding that both drivers were distracted or inattentive and that both were materially at fault, but that does not carry the conclusion that defendant was entitled to a directed verdict because of plaintiff’s contributory negligence. A plaintiff is to be held guilty of contributory negligence as a matter of law only when the evidence most favorable to his submission, together with the inferences permissible therefrom, allow no other reasonable conclusion. Otherwise, the plaintiff’s contributory negligence is a jury question. Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 19 [1]; Kickham v. Carter, Mo., 314 S.W.2d 902, 908-909 [8] [9]; Jones v. Fritz, Mo.App., 353 S.W.2d 393, 399 [11].

The respondent emphasizes Mr. Bisch-off’s testimony that he never saw the Dodson car before the collision, and his statement in response to counsel’s question that one can see “a thousand or two thousand feet” back to the south “when you get on up to the curb line, the west curb line [of Grant].” One of the investigating officers, called as plaintiff’s witness, also testified that “when the front of your car is even with the west curb line of Grant * * * you can see to State Street unless parking on the west side * * * obstructs your view.” The record evidence was that there were no automobiles parked along the west side of Grant near the intersection. Mrs. Dodson testified, as we have indicated, that she “ * * * pulled the front [of the car] up where I could see both ways,” looked in both directions, and saw nothing coming. Defendant estimated that she was stopped “ * * * I’d say at least five seconds.”

A somewhat complicating and contradictory feature of the evidence is that both the plaintiff and the investigating officer testified that the view on Mt. Vernon is obscured for a northbound motorist, in plaintiff’s words, until “you get to the corner, approximately to the corner.” The investigating officer’s evidence was that “it wouldn’t be a blind intersection. You could see before you entered the intersection.” The officer answered “yes” to counsel’s suggestion that he meant “just before you get to the intersection.” Some of the exhibits of both parties indicate that on the southwest corner of the intersection there is an array of poles, signs and guy wires, which may have interfered with both plaintiff’s and defendant’s view. The record evidence thus suggests that the unobstructed view ahead and laterally may not have been the same for both plaintiff and defendant.

In any case, we think the defendant’s argument overstates the measure of plaintiff’s duty. Though we have no doubt that if the defendant had already preempted the intersection before plaintiff entered, it was plaintiff’s duty to exercise the highest degree of care to allow defendant to pass in safety, Creech v. Blackwell, Mo., 298 S.W.2d 394, 400 [5] [6]; Jones v. Fritz, supra, 353 S.W.2d at 397-398 [9], and plaintiff had no unrestricted right .to enter the intersection in disregard of motorists on the intersecting street, Pitts v. Garner, supra, 321 S.W.2d at 518; Jones v. Fritz, supra, 353 S.W.2d at 397; still the plaintiff’s duty to take evasive action (as defendant concedes) did not arise until it appeared to him, in the exercise of the highest degree of care, that defendant would not or could not stop short of his path. Pitts v. Garner, supra, 321 S.W.2d at 518 [11]; Myers v. Karchmer, Mo., 313 S.W.2d 697, 704 [8]; Collier v. St. Louis Public Service Co., Mo.App., 298 S.W.2d 455, 460 [4]. So far as plaintiff’s failure to see the defendant is concerned, we reiterate that plaintiff was under no duty to maintain a continuous lookout in one direction, Slaughter v. Myers, Mo., 335 S.W.2d 50, 54 [6]; Pitts v. Garner, supra, 321 S.W.2d at 518-519; Jones v. Fritz, supra, 353 S.W.2d at 398, and whether a driver is negligent in failing to keep a lookout in a particular direction, and has thereby failed to see all he should have seen, is usually a jury question. Slaughter v. Myers, supra, 335 S.W.2d at 54 [6]; Cox v. Moore, Mo.App., 394 S.W.2d 65, 70 [13]; 61 C.J.S. Motor Vehicles § 526, pp. 437-438. The real weakness of respondent’s position is, however, that the record affords no basis for determining, with reasonable accuracy and confidence, the position of either vehicle when plaintiff’s duty to act arose, and no foundation for holding that the plaintiff could thereafter have avoided the collision. Though the two cases are factually different, the rationale of this court’s opinion in Jones v. Fritz, supra, 353 S.W.2d at 398-399, is apt here, and we decline to hold the plaintiff guilty of contributory negligence.as a matter of law.

The other point for discussion is whether a new trial was properly granted because of the erroneous reception of evidence. The trial court’s order specified that a new trial was granted because “* * * under the decision of the Supreme Court in the case of Seymour v. House [Mo., 305 S.W.2d 1] * * * the admission of testimony over the objection of the defendant as to the amounts paid by the plaintiff for a substitute driver, without any qualifying evidence as to the profits of the business, was erroneous. This error [was] further compounded by the instruction on the measure of dafnages which especially singles out this evidence and emphasizes it.”

Plaintiff described himself as a “truck salesman.” He said that his work consisted of making deliveries to service stations in a “specified territory.” Aside from this evidence, the nature of his occupation is not shown. The record before us does not disclose how Mr. Bischoff computed his earnings, nor the amount of his business earnings, or “profits,” for any monthly or yearly period, either before or after the accident. It was shown that plaintiff kept records; in response to defendant’s qualifying interrogation, plaintiff answered affirmatively when he was asked if his records “ * * * reflect fully the amount of your sales, your operating expenses and any expenditures you make for help and employment.” Plaintiff did not produce, or offer to produce, those records. He did testify, over the defendant’s objection, that he estimated he had lost “ * * * around $125.00 a month,” when he was asked by his counsel “how much money” he had lost from his business as a result of the accident, and he amplified this by saying later that “my statements will show I’m making about the same as I made last year, and I’ve received two new accounts that makes me about $125.00 a month, two new dealers. So, I’ve lost something somewhere.” Mr. Bischoff also testified that, after the accident, he became unable to operate his route and was obliged to employ a Mr. Clutter to drive his truck. He accompanied Mr. Clutter in the truck, however, because “he [Clutter] didn’t know the route, didn’t know the ones that needed attention, and I made tickets and it kind of speeded things up a little * * Plaintiff testified he paid Clutter $148.45 for his services. Also, because of his injuries, plaintiff said he was obliged to employ his sons, Larry and Bill, to assist him in the “next few months” following the accident, and he paid them “around $900.00.” Aside from being “off” work intermittently, Mr. Bischoff was away from work “completely all day” for fifty-eight days. We note from plaintiff’s medical evidence that in 1962 he developed a cardiac ailment and was advised to restrict his activity, though it is not clear from the record whether he did so, prior to the accident.

The defendant’s position is that this case is closely analogous to Seymour v. House, supra, 305 S.W.2d 1; she maintained in the trial court, and argues here, that the plaintiff failed to present enough evidence for a jury to make a reasonable estimate of plaintiff’s loss of earnings, if any, and in any case, she says, the proof of payments made to substitutes or additional employees should not have been admitted. The appellant, on the other hand, insists that the trial court misconstrued the Seymour opinion, and maintains that his evidence concerning loss of past earnings was admissible, and proper for the jury to consider, citing Fishang v. Eyermann Contracting Co., 333 Mo. 874, 63 S.W.2d 30, and Liles v. Associated Transports, Inc., 359 Mo. 87, 220 S.W.2d 36, in support of his position.

There is no need in this case to consider at length the various principles of law stated in Seymour v. House, supra, 305 S.W.2d 1, and we emphasize that we undertake no judicial gloss on that opinion. In that case, the Supreme Court held, among other things, that a plaintiff claiming personal injuries may ordinarily prove a resulting loss of time and a consequent loss of personal earnings or wages as an item of special damages, but generally the recovery of business profits, as such, is denied. Seymour v. House, supra, 305 S.W.2d at 3, 4 [1] [4]. As the appellant correctly states, and as the Seymour opinion notes, there are some cases, like the Fish-ang case, supra, in which evidence of loss of profits has been received on the theory that plaintiff’s profits or earnings were really in the nature of personal earnings. Fishang v. Eyermann Contracting Co., supra, 333 Mo. at 886, 63 S.W.2d at 36. If a plaintiff makes a substantial showing that the capital invested in his business was relatively insignificant, and that the success of his business was predominantly dependent upon his personal effort and initiative, then loss of profits can be shown, but only as an aid in determining the pecuniary value of plaintiff’s services in the business. Seymour v. House, supra, 305 S.W.2d at 5. We agree with the appellant that one might infer that Mr. Bischoff’s business was a “one-man affair,” but the Seymour opinion seems to require more than an inference; it speaks of a substantial showing.

However that may be, we believe the trial court’s ruling was correct. The Seymour case, and many others, hold that if a plaintiff seeks to show a loss of past business earnings, or “profits,” it must appear that the loss is the proximate result of the injury, and the evidence thereof must be certain enough to afford a basis for a reasonable estimate of the amount of loss. Hargis v. Sample, Mo., 306 S.W.2d 564, 569 [7]; Seymour v. House, supra, 305 S.W.2d at 3-4 [1-3]; Burns v. Kansas City Public Service Co., Mo., 273 S.W.2d 184, 190 [3]; Anno., 12 A.L.R.2d 291, 292-301, Sections 3-6 (1950). In Moss v. Mindlin’s, Incorporated, Mo., 301 S.W.2d 761, the court rejected an estimate of loss of past earnings considerably more explicit than plaintiff’s estimate in the present case, stating, 301 S.W.2d at 773, that “* * * [t]he burden was on plaintiff to prove loss of past earnings with some reasonable certainty — i. e., to prove the fact and amount of loss at least by the best evidence available. * * * ” Although we do not agree with respondent’s implied suggestion that books of account are always indispensable, the record before us furnishes no basis whatever for determining what Mr. Bisch-off’s loss of earnings was. Presumably,’he received the net earnings of his business, but the jury was not advised how he calculated them. No figure is given either for 1963 or 1964, nor is there any proof of circumstances from which a jury might infer that whatever loss plaintiff sustained was caused by the injury rather than by his previously impaired ability to work, or by the other variable circumstances which may reduce business earnings. As evidence of loss of earnings, the proof of payments made to Clutter and to plaintiff’s sons was wholly speculative and inconclusive, and we believe the admission of such evidence constituted prejudicial error.

We need not consider the abstract correctness of the instruction offered by plaintiff on the measure of damages. Plaintiff contends that it is a rescript of that approved in Moss v. Mindlin’s, Incorporated, supra, 301 S.W.2d at 768-769 [7], but we do not wholly agree. Instruction 2 in Moss v. Mindlin’s, Incorporated, advised the jury that, in assessing plaintiff’s damages, they might take into consideration “ * * * all actual loss of wages and earnings as you may find and believe from the evidence the plaintiff has suffered as a direct result of said injuries,” whereas this instruction does not mention loss of past earnings as such, but advises the jury that they may consider “* * .* all payments of wages * * * the plaintiff was required to pay as a direct result of said injuries.” It does thus call attention, as the trial court says, to the inadmissible evidence. Whether or not the giving of this instruction alone would have warranted a new trial, we need not decide.

It is elementary that trial courts have discretionary authority to grant a new trial because of error affecting-the determination of fact issues, Ryan v. Campbell “66” Express, Inc., Mo., 304 S.W.2d 825, 827 [1], and, given the proposition that evidence was erroneously admitted, it is for the trial court to determine its prejudicial effect. Gray v. St. Louis-San Francisco Ry. Co., 363 Mo. 864, 872, 254 S.W.2d 577, 580 [3, 4]. We consider that the evidence objected to by the defendant was erroneously admitted, and we further consider that it was proper to grant a new trial. It is also within the authority of the trial court to grant a new trial as to the issue of damages only, Rule 78.01, V.A.M.R.; Lilly v. Boswell, 362 Mo. 444, 456, 242 S.W.2d 73, 78 [13], but upon consideration of the whole record, we believe a retrial of all the issues should be had. We are in agreement with the general principle that, where there is no error except such as affects the amount of damages, a new trial can and often should be limited to the issue of damages, Anno., 85 A.L.R.2d 9, 80-83, but there is no set rule which governs this question in every case. It has been recognized, both directly and impliedly, that in cases of the kind involved here the highly conflicting nature of the evidence may make it practically impossible to try the issue of damages separately from the issue of liability with fáimess to the litigants, Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 729 [7]; Ziervogel v. Royal Packing Co., Mo.App., 225 S.W.2d 798, 806, and we are convinced that is true here. For the reasons indicated, the judgment is modified, and as modified is affirmed, and the cause is remanded for a new trial on all issues.

STONE, P. J., concurs.


author: RUARK, Judge.

text:
    Edgar Russell EWEN, Plaintiff-Respondent, v. Edward Gibson SPENCE, Defendant-Appellant.
    No. 8470.
    Springfield Court of Appeals. Missouri.
    May 19, 1966.
    Rehearing Denied June 11, 1966.
    Application to Transfer Denied Sept. 12, 1966.

      Graves & Graves, Neosho, for defendant-appellant.
    Douglas & Douglas, Herbert Douglas, Neosho, for plaintiff-respondent.
   RUARK, Judge.

Defendant Spence has appealed from a jury-based judgment in amount of $4,262.00 for property damage, medical expense, and loss of wages. The occasion: Defendant’s Ford station wagon collided with plaintiff’s tractor at the approach entrance (commonly known as Lyon Gate) to the former Fort Crowder reservation from Highway 71 south of Neosho. At this place Highway 71 is a divided, concrete pavement running north and south. The immediate and surrounding area is approximately level and open.

The east northbound lane of 71 is twenty-seven feet in width. There is a paved cross-over from the west southbound lane, with a “yield right-of-way” sign warning drivers approaching the northbound lane on the cross-over from the west. Immediately east of the northbound lane is a wide, level, spread-paved entrance area. The exhibits indicate at least four separate lanes, at least two of which are divided and curve outward from the center pavement. The actual road (farther on east) into the reservation is a dual lane. While the roadway and entrance road area are level at this place, south of Lyon Gate on 71 there is a small but fairly abrupt rise, or what the plaintiff terms a hill. According to plaintiff’s testimony, the “top” or crest of this hill or rise is approximately one-half mile south. There are no obstructions to vision between this crest of hill and the cross-over.

On this forenoon defendant Spence was driving northbound from the south on the east lane of 71 in a Ford station wagon. His young daughter was asleep in the front seat beside him.

Plaintiff Ewen had been going south on the west lane of 71 and had turned east and was, or had been, crossing the east or northbound lane of 71. He was driving what appears to have been a comparatively small tractor and pulling behind it a combine which he said was attached flush to the rear of the tractor. He gave the length of the combine as fourteen feet. We do not find the length of the tractor stated, but he said the over-all length of the tractor-combine assembly was approximately twenty feet. The only other plaintiff’s witness stated the length of the combine to be approximately twelve feet. We must conclude the tractor was six to eight feet in length. Defendant’s northbound station wagon collided with the right rear wheel of the tractor at a point on the entrance approach into Lyon Gate where the rear of the tractor was eight feet east of the east edge of the northbound lane of 71.

The plaintiff submitted on negligence under the humanitarian rule. Appellant’s sole contention is that the physical facts show that the collision could not have happened as plaintiff said it did. Plaintiff’s case is this: He approached the cross-over from the north with the intention of entering or passing through the former Crowder reservation and on beyond, where he intended to combine some wheat on his father’s farm. He swung his assembly to the left to head east on the cross-over. As he made this turn, he says he looked to the south and saw a car, presumably the defendant’s, at the crest or top of the hill which was approximately one-half mile away. After he made his turn to the east, he traveled east a distance (he testified) of one hundred feet until he reached the northbound lane. He says he was driving his tractor at a speed of ten miles per hour. At that point (the northbound lane) he looked to the south again, and the approaching car was then about halfway down the hill and one-fourth mile south of the crossover. Not stopping, he continued on east with his tractor-combine assembly across, or almost across, the northbound lane of 71, when his attention was attracted by the scream of tires, “and I looked up” and saw the approaching Ford. When the Ford struck the rear wheel of the tractor, it was in the entrance approach to the reservation, and the rear was eight feet east of the pavement on 71. Approximately seven feet of his combine still remained extended on the highway. Plaintiff offered in evidence as a part of his case the defendant’s answer to an interrogatory, which plaintiff had addressed to him, in which defendant had stated that prior to the collision and at a point five hundred feet south of the place of impact, he had been driving at a speed of sixty-five to seventy miles per hour.

Defendant also testified that he was driving sixty-five to seventy miles per hour, and that is the only speed of defendant’s car in evidence. Defendant also stated that when he was from fifty to seventy-five yards south of the entrance approach, he saw the tractor pulling the combine drive out ahead of him and enter upon the northbound lane. He first grabbed his sleeping daughter; then he applied his brakes and held to the right, hoping the tractor would stop. Plaintiff’s witness, a highway patrolman who arrived before things had been moved, measured skidmarks to the south and leading to the place of impact, following the course defendant had followed. Marks left by right wheels extended a total of forty-one feet on the pavement and sixty-five feet on the grass, or a total of one hundred and six feet. The left tire marks extended forty feet on the pavement and thirty feet on the grass, or a total of seventy feet.

As nearly as we are able to calculate, the distance plaintiff traveled from the time he looked to the right (when his tractor was at the west edge of the northbound lane and entering upon it) until.he reached the point of impact (where the rear of his tractor was not to exceed eight feet east of the edge of the pavement), was approximately forty-three feet. This distance represents the width of the northbound lane (twenty-seven feet), plus the distance from its east edge to the rear of the tractor (eight feet), plus the length of the tractor (not to exceed eight feet). We add this eight feet because the measurement commences from the front of the tractor at the west edge of the northbound lane and ends at the rear of the tractor, the place of impact. At the given speed of his tractor, ten miles per hour, he was traveling approximately 14.7 feet per second and would have covered the distance of forty-three feet "in approximately three seconds. In order for the defendant to travel from halfway down the hill, one-quarter mile away, to the point of impact in three seconds, his Ford would have to have been proceeding at the rate of about, less than, three hundred miles per hour, and this does not take into account the effect of braking for at least one hundred and six feet.

Calculated another way: If we assume defendant was going seventy miles per hour (as being more favorable to plaintiff than the only other given speed because he would have reached the point of impact sooner), the Ford would have been traveling at a speed of approximately one hundred three feet per second, and the distance traveled (one-fourth mile) would have required him about 12.8 seconds to reach the place of impact (and this does not make any allowance for reaction time or braking distance); and, in that time the tractor, proceeding at approximately 14.7 feet per second would have traveled one hundred eighty-feet plus, or far east and beyond the point where the collision occurred.

Defendant had no duty under the humanitarian doctrine until it became reasonably apparent that plaintiff, in disregard of the “yield” sign, was entering upon and crossing the northbound lane into the path of defendant’s car, and that he was oblivious to or unable to extricate himself from his position of peril.

We are well aware that the verdict holder is entitled to the most favorable interpretation of all the evidence and inferences not in conflict with the theory of his case. This has been said so many times that it does not require citation of authority. And we realize that plaintiff is not to be too strictly bound or judged by exact figures as to time, speed, or distance, when such is a matter of estimate. 88 C.J.S. Trial § 208(5), p. 442; Caffey v. St. Louis-San Francisco Railroad Co., Mo.App., 292 S.W.2d 611, 615; Wood v. Ezell, Mo.App., 342 S.W.2d 503(5). The courts are reluctant to draw arbitrary conclusions so as to exclude sworn testimony. But we are not required to blindly accept that which is incredible and contrary to common human knowledge (Stonefield v. Flynn, Mo.App., 347 S.W.2d 472, 477; East v. McMenamy, Mo., 266 S.W.2d 728, 731; Dillon v. Hogue, Mo.App., 381 S.W.2d 599, 604). The evidence must show more than a mere possibility that the injury could have been avoided. Berry v. McDaniel, Mo.App., 269 S.W.2d 666, 670; Woods v. Dalton, Mo.App., 331 S.W.2d 132(7); Paydon v. Globus, Mo., 262 S.W.2d 601, 604. Obviously plaintiff must prove every element of a humanitarian doctrine case by probative evidence. Davis v. McClanahan, Mo.App., 262 S.W.2d 65, 69; Harrellson v. Barks, Mo.App., 326 S.W.2d 351, and cases cited at p. 359, n. 12. And if two different, inconsistent, or opposing inferences in respect to liability can be drawn from the same evidence, the case must fail (Moore v. Ervin, Mo., 374 S.W.2d 142, 149; Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494, and cases cited at 497, 498; Evans v. Colombo, Mo.App., 311 S.W.2d 141 [6]), for a verdict based on conjecture and speculation cannot stand. White v. Burkeybile, Mo., 386 S.W.2d 418 (8); Stepp v. Rainwater, Mo.App., 373 S.W.2d 162(12); Probst v. Seyer, Mo., 353 S.W.2d 798, 802, 91 A.L.R.2d 1252. There comes a point or place when statements given by a witness, whether in the form of estimates or otherwise, are so far removed from actual possibilities that they lose the force of bona fide estimates and honest opinions and become so manifestly incredible, irreconcilable with, and contrary to physical laws and common human knowledge that they demonstrate in and of themselves that they are made without actual knowledge and are mere conjecture, or wishful thinking. They do not constitute probative evidence.

We grant that a person is entitled to considerable leeway in unaided estimates of distance (although the locations were given in reference to semi-fixed points [at the top of the hill, one-half mile, and halfway down the hill, one-quarter mile]), but if we halve the defendant’s given speed, or if we shorten the distance of one-quarter mile to one-half of that given by plaintiff, and possibly slow down the speed of plaintiff’s tractor, it is still impossible to make the speeds, distances, and times coincide so that the collision could possibly have happened in the way and manner plaintiff said it did. The statements indicate a lack of knowledge in respect to the facts testified to, and they are not probative evidence sufficient to sustain the verdict.

Under the circumstances here presented, we believe that the ends of justice will be served by setting aside the judgment and remanding the case for further proceedings not inconsistent herewith. Accordingly, the case is reversed and remanded.

STONE, P. J., and HOGAN, J., concur.

      . Closser v. Becker, Mo., 308 S.W.2d 728, 736; Leavitt v. St. Louis Public Service Co., Mo.App., 340 S.W.2d 131(3); Garrison v. Ryno, Mo., 328 S.W.2d 557(1); Phillips v. Stockman, Mo.App., 351 S.W. 2d 464(2).

      . 20 Am.Jur., Evidence, § 1183, p. 1033, § 1184, p. 1035; Dillon v. Hogue, Mo.App., 381 S.W.2d 599, 604; East v. McMenamy, Mo., 266 S.W.2d 728(2); Kelly v. Terminal Railroad Association of St. Louis, Mo., 315 S.W.2d 699 (and cases cited at 702); Paige v. Missouri Pacific Railroad Co., Mo., 323 S.W.2d 753(8). Some of the cases which deal specifically with distance and speed are: Stonefield v. Flynn, Mo.App., 347 S.W.2d 472; Wood v. Ezell, Mo.App., 342 S.W.2d 503; Woods v. Dalton, Mo.App., 331 S.W.2d 132; Harrellson v. Barks, supra, Mo.App., 326 S.W.2d 351; Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885; Davis v. McClanahan, Mo.App., 262 S.W.2d 65; Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494.

      . See Sammons v. Kansas City Public Service Co., Mo.App., 179 S.W.2d 620, 153 A.L.R. 215; see also Davis v. St. Louis Public Service Co., supra, Mo., 316 S.W.2d 494.


author: STONE, Presiding Judge.

text:
    M.F.A. CENTRAL COOPERATIVE, a corporation, Plaintiff-Appellant, v. Carl HARRILL and Verla Harrill, Defendants-Respondents.
    No. 8487.
    Springfield Court of Appeals. Missouri.
    July 11, 1966.

      Belisle, McNabb & Kyser, Butler, for plaintiff-appellant.
    Ralph E. Smith, Butler, for defendants-respondents.
   STONE, Presiding Judge.

In its first amended petition on which this case was tried, plaintiff M.F.A. Central Cooperative, a corporation, sought judgment in the sum of $1,149.59 as the balance on an open account for dairy feed and supplies allegedly sold and delivered to defendants Carl Harrill and Verla Harrill, husband and wife. Defendants responded with (a) an answer in which they admitted only plaintiff’s corporate status and denied all other averments of the petition and (b) a counterclaim in which they sought damages in the sum of $10,000 for alleged drastic reduction in the milk production and market value of their dairy herd by reason of sickness in the herd claimed to have been caused by plaintiff’s feed delivered about October 1,1961. At the conclusion of a bitterly-contested trial, this unanimous verdict was returned: “We the jury find the issues in favor of the defendants upon plaintiff’s claim and for the plaintiff upon defendants counterclaim. We the jury fell (sic) defendants counterclaim should be 1135.42.” (During the trial, the balance claimed on the open account had been reduced to $1,-135.42 by crediting thereon a “patronage refund check” of $14.17.) Upon this verdict accepted without comment or objection by court or counsel (and not mentioned in any after-trial motion), judgment was entered “that plaintiff take nothing on its claim against the defendants” and “that the defendants take nothing on their counterclaim against the plaintiff.”

Plaintiff filed an after-trial motion for judgment in accordance with.its motion for directed verdict on its petition at the close of the evidence or, in the alternative, for a new trial on its petition; and defendants filed an after-trial motion for a new trial on their counterclaim. Both after-trial motions were denied by operation of V.A.M.R. Rule 78.04. Thereafter, plaintiff appealed from the adverse judgment on its petition; but defendants did not appeal, so the judgment for plaintiff on defendants’ counterclaim must be accepted as a final adjudication of the issues raised thereby.

Two points are presented in plaintiff’s brief, to wit, (1) that the trial court erred in overruling plaintiff’s after-trial motion for judgment in accordance with its motion for directed verdict on its petition at the close of the evidence “because plaintiff’s evidence clearly established liability on the part of the defendants and because of the admissions in defendants’ testimony and pleadings,” and (2) that the trial court erred in overruling plaintiff’s motion for new trial “because the verdict was against the weight of the evidence and because of the defendants’ admissions in their testimony and pleadings.” In failing to file a brief, defendants-respondents have indulged a practice neither helpful nor commendable and have left us dependent upon plaintiff’s-appellant’s presentation and our own research. Mannon v. Frick, 365 Mo. 1203, 1205, 295 S.W.2d 158, 161; M.F.A. Co-op. Ass’n. of Mansfield v. Murray, Mo.App., 365 S.W.2d 279, 285. See Quinn v. St. Louis Public Service Co., Mo., 318 S.W.2d 316, 319.

Was plaintiff entitled to a directed verdict on its petition? The law governing the direction of a verdict for the party carrying the burden of proof is well-articulated in this oft-quoted statement from Coleman v. Jackson County, 349 Mo. 255, 261, 160 S.W.2d 691, 693(2): “It is a generally accepted rule in this state that a verdict may not be directed in favor of the proponent, that is the party upon whom the law casts the final burden of proof. (Citing cases) There is, however, a well-recognized exception to the rule. If the opponent, that is the party not having the burden of proof, admits either in his pleadings or by counsel in open court or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him, and if the proof is altogether of a documentary nature and the authenticity and correctness of the documents are unquestioned, and if such proof establishes beyond all doubt the truth of facts which as a matter of law entitled the proponent to the relief sought, and such proof is unimpeached and uncontra-dicted, the proponent will be entitled to a peremptory instruction. This is upon the theory that there is no question of fact left in the case and that upon the questions of law involved the jury has no right to pass. (Citing cases)” (All emphasis herein is ours.)

Under the italicized exception, we are of the opinion that the trial court erred in refusing to direct a verdict in favor of instant plaintiff and against defendant Carl Harrill and likewise in overruling plaintiff’s after-trial motion for judgment against him. Called to the witness stand by plaintiff’s counsel, defendant Carl glibly stated that “I carried the credit card with M.F.A. all the way through” and “bought the feed in Carl Harrill’s name in Butler at M.F.A.,” readily conceded that “I’m not questioning” receipt of any of the items billed in the account, and frankly admitted that the charges for those items were fair and reasonable — “I never questioned the price on them at all.” The statement of account reflected fifty-one charges aggregating $4,020.25 and eighteen credits aggregating $2,870.66, which left a balance of $1,149.59 for which suit was brought, that balance being subsequently reduced to $1,-135.42 by a credit of $14.17 for a “patronage refund check.” If any additional credits on account had been claimed by defendant Carl, it would have been incumbent upon him so to have pleaded affirmatively and the burden of proving those credits would have rested upon him. There was no such plea or proof; and, with defendant Carl admitting in his testimony upon trial all of the essential elements of plaintiff’s claim, plaintiff was entitled to a directed verdict against him in the principal sum of $1,135.42 with interest thereon at six per cent per annum from and after July 18, 1962, the date of institution of this suit. Weekley v. Wallace, Mo.App., 314 S.W.2d 256, 257 (2-4); V.A.M.S. § 408.020.

The state of the record with respect to the liability of defendant Verla Harrill is quite different. She did not testify upon trial and the record contains no admissions by her, excepting only such as may be gleaned from defendants’ counterclaim, of which more anon. Plaintiff’s original petition filed on July 18,1962, named defendant Carl as sole party defendant; and, in that petition plaintiff alleged, inter alia, that “defendant purchased from plaintiff, and plaintiff sold and delivered to defendant, certain merchandise as shown on the attached bill of items and statement of account, which is marked Exhibit A and made a part hereof by reference.” At the top of each of the five pages of the attached statement of account, “Mr. Carl Harrill, Adrian, Missouri,” was shown as the debtor.

More than eighteen months later, to wit, on February 10, 1964, plaintiff presented a motion for leave to file an amended petition making defendant Verla a party defendant, in which plaintiff stated that “it has become possessed of knowledge that the merchandise purchased as stated in the plaintiff’s petition was purchased partly by Verla U. Harrill and partly by defendant Carl Har-rill.” In plaintiff’s first amended petition thereafter filed by leave of court, plaintiff alleged, in part, that “defendants purchased from plaintiff, and plaintiff sold and delivered to defendants, certain merchandise as shown on the attached bill of items and statement of account, which is marked Exhibit A and made a part hereof by reference.” But the attached statement of account, upon trial offered and received in evidence as plaintiff’s exhibit 1, was precisely the same statement of account as had been attached to and made a part of plaintiff’s original petition, with “Mr. Carl Har-rill, Adrian, Missouri,” shown as the debtor at the top of each of the five pages of the statement.

Upon cross-examination of witness Good-son, plaintiff’s manager, it was developed that “the account is in Mr. Carl Harrill’s name”; that about the 25th day of each month a “Thermofax” copy of the account had been mailed to “Mr. Carl Harrill”; that “to my knowledge” no statement of account had been sent to defendant Verla; and that the only alleged demand upon her for payment of the account had been an oral demand, so witness Goodson said, by himself and an attorney from Columbia when they went to the Harrill farm on a date thought by Goodson to have been “sometime in the Spring of ’62 . . . or late Winter of, or Fall, of ’61,” and in response to their demand for payment defendant Verla “didn’t deny it [the account].”

Plaintiff also offered in evidence as plaintiff’s exhibit 2 a group of sales tickets for the items charged in the statement of account, plaintiff’s exhibit 1. On thirty-one of those sales tickets, there appears, below the recordation of the items sold and the sums charged therefor, what plaintiff’s counsel appropriately referred to as “a delivery signature.” The remainder of the sales tickets, twenty in number, carry no delivery signature. Of the afore-mentioned thirty-one sales tickets, nine bear the delivery signature of defendant Carl, seventeen that of defendant Verla, and five that of “Frank Simpson” or “B. F. Simpson” identified as “a neighbor.” But the jury well might have regarded as of far greater significance the fact that, on the line near the top of the sales tickets provided for designation of the buyer (or buyers) and following the printed words “Sold to,” the only name there written on each ticket was “Carl HarriU.”

Plaintiff emphasizes that it is entitled to the benefit of, and that defendants are bound by, the judicial admissions in defendants’ counterclaim; and indeed that is true. However, the “admissions” in the counterclaim amounted to no more than that “defendants operate a dairy farm in Bates County”; that “on or about the 1st day of October, 1961, the plaintiff delivered to the defendants certain dairy feed” which plaintiff warranted “was fit for consumption by dairy cattle”; and that “upon feeding said feed to the defendants dairy herd they become (sic) ill and diseased” by reason of which defendants incurred veterinary expense and the milk production and value of the herd were reduced substantially, all to defendants’ damage in the sum of $10,000.

Even with respect to the undes-ignated kind and quantity of feed “on or about the 1st day of October, 1961, . . . delivered to the defendants,” nothing in the counterclaim fairly could be construed as having constituted a conclusive admission by defendant Verla that such feed had been sold to her or on credit extended to her; and certainly that is indisputably true with respect to the feed and supplies reflected by the other charges (thirty-five of them prior to October 1, 1961) in the statement of account. We have no doubt but that the record in its entirety permitted an inference and finding by the jury that the feed and supplies charged in the statement had been sold by plaintiff to defendant Carl on credit extended to him only. Welch-Sandler Cement Co. v. Mullins, Mo.App., 31 S.W.2d 86. See Hannah v. Baylor, 27 Mo.App. 302. Plaintiff’s senior counsel recognized this during trial when, in pressing his contention of the moment concerning the alleged inadmissibility of certain evidence, he insisted that “it’s up to the jury to say whether this is a joint account or whether it isn’t a joint account.” The trial judge promptly responded, “I agree with that.” In turn, we simply add our agreement.

Furthermore, the burden of proof rested on plaintiff to establish every essential element of its cause of action, including "the correctness of the account and the reasonableness of the charges.” J. D. Streett & Co. v. Bone, Mo., 334 S.W.2d 5, 8(1, 2). See 1 C.J.S. Account, Action on § 15, 1. c. 604. Obviously those elements were not admitted by the counterclaim but, as to defendant Verla, depended upon the oral testimony adduced by plaintiff. Cf. S. J. Travis & Co. v. Means, Mo.App., 192 S.W. 119. Thus, as to her, the instant action falls squarely within the fundamental principle that: “In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unim-peached.” Whether plaintiff had carried its burden of proof to establish the essential elements of its claim was for the jury [Bakelite Co. v. Miller, Mo., 372 S.W.2d 867, 871(1, 2)], and the trial court properly refused to direct a verdict against defendant Verla.

Is plaintiff entitled to a new trial as to defendant Verla? Plaintiff’s alternative plea under its second point is for a new trial on its petition because the verdict was against the weight of the evidence and because of defendants’ admissions. Since we are directing entry of a judgment against defendant Carl, our present inquiry is only whether a new trial should be granted as to defendant Verla. As we have noted, she did not testify upon trial and the counterclaim contained no admissions determinative of the issues raised by plaintiff’s petition and denied in defendants’ answer. So plaintiff’s plea for a new trial as to defendant Verla rests on nothing more substantial than the complaint that the verdict for her was against the weight of the evidence. Although an appellate court has the power in a jury-tried action at law to grant another trial on the weight of the evidence, it is crystal clear that appellate policy in law cases is to abide by the ruling of the trial court on weight of evidence assignments. See our discussion of this subject in Gould v. M.F.A. Mutual Ins. Co., Mo.App., 331 S.W.2d 663, 670-671(13). Thus, the complaint that the verdict for defendant Verla on the petition was against the weight of the evidence refers to a matter essentially for the trial court. Stanziale v. Musick, Mo., 370 S.W.2d 261, 265(3); Robbins v. Robbins, Mo., 328 S.W.2d 552, 556(7). The case at bar is not so egregious as to justify our refusal to follow the established appellate policy of abiding by the trial court’s refusal to grant a new trial on the weight of the evidence. J. D. Streett & Co. v. Bone, supra, 334 S.W.2d at 9-10(5-7).

Where, as here, separate trials were not ordered or had [V.A.M.R. Rule 66.02], there should be only one final judgment which should dispose of all parties and all issues. See cases collected in 17A West’s Missouri Digest under Judgment, ©⅞03. Accordingly, the judgment nisi is set aside in its entirety and the cause is remanded to the circuit court'with directions (a) to enter judgment on the petition for plaintiff and against defendant Carl Harrill in the principal sum of $1,135.42 with interest thereon at six per cent per annum from and after July 18, 1962, (b) to re-enter judgment on the petition against plaintiff and in favor of defendant Verla Harrill, (c) to re-enter judgment for plaintiff on defendants’ counterclaim, and (d) to tax the costs against defendant Carl Harrill.

HOGAN, J., concurs.

      . Hardin v. Ray, Mo.App., 404 S.W.2d 764, 769(5) ; Bybee v. Dixon, Mo.App., 380 S.W.2d 539, 540(1) ; Welch v. Mischke, 154 Mo.App. 728, 738, 136 S.W. 36, 40 (6). See King v. King, Mo.App., 382 S.W.2d 819, 820(1) ; Wilson v. Motors Ins. Corp., Mo.App., 349 S.W.2d 250, 251.

      . Chandler v. Gorda, Mo., 384 S.W.2d 523, 525; Charles F. Curry & Co. v. Hedrick, Mo., 378 S.W.2d 522, 531 (4) ; Prevost v. Wilkin, Mo.App., 358 S.W.2d 417, 418-419(2); Fields v. Kansas City, Mo.App., 358 S.W.2d 96, 98 (2); Hartford Acc. & Indem. Co. v. Farmington Auction, Inc., Mo.App., 356 S.W.2d 512, 518; Newkirk v. Moley, Mo.App., 343 S.W.2d 213, 218. See Rogers v. Thompson, 364 Mo. 605, 615, 265 S.W.2d 282, 287(1) ; Vincent v. Raffety, Mo.App., 344 S.W.2d 293, 295(1) ; Gardner v. Linwedel, Mo.App., 192 S.W.2d 613, 617(5).

      . V.A.M.R. Rule 55.10; V.A.M.S. § 509.-090; Emory v. Emory, Mo., 53 S.W.2d 908, 913(7); Hubbard v. Happel’s Estate, Mo.App., 382 S.W.2d 416, 424(5); Allmon v. Allmon, Mo.App., 306 S.W.2d 651, 655(3); Machctinger v. Grenzeback, Mo.App., 282 S.W.24 200, 201(3, 4); Silvey v. Herndon, Mo.App., 234 S.W.2d 335, 340(7); 1 Am.Jur.2d, Accounts and Accounting, § 19, 1. c. 392.

      . Wehrli v. Wabash it. Co., Mo., 315 S.W. 2d 765, 773(9), certiorari denied 358 U.S. 932, 79 S.Ct. 321, 3 L.Ed.2d 304; Huber v. Western & Southern Life Ins. Co. of Cincinnati, Ohio, Mo.App., 341 S.W.2d 297, 300(1); Thomas v. Aines Farm Dairy, Mo.App., 257 S.W.2d 228, 233(3); E. O. Kobinson Lumber Co. v. Ladman, Mo.App., 255 S.W.2d 72, 78(8, 9); 4 Wigmore on Evidence (3rd Ed.), § 1064, pp. 45-46.

      . Cluck v. Abe, 328 Mo. 81, 84, 40 S.W. 2d 558, 559; Rutledge v. Baldi, Mo., 392 S.W.2d 244, 246(1). See J. D. Streett & Co. v. Bone, Mo., 334 S.W.2d 5, 10; Beezley v. Spiva, Mo., 313 S.W.2d 691, 695(6); M.F.A. Co-op. Ass’n. of Mansfield v. Murray, Mo.App., 365 S.W.2d 279, 287(9).


author: SPERRY, Commissioner. MAUGHMER, C., concurs.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, Respondent, v. CENTRAL SURETY AND INSURANCE CORPORATION, a Corporation, Appellant.
    No. 24448.
    Kansas City Court of Appeals. Missouri.
    April 4, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 6, 1966.
    Application to Transfer Denied Sept. 12, 1966.

      Henry G. Eager, Robert M. Duboc, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, for appellant.
    Thomas E. Deacy and Deacy & Deacy, Kansas City, for respondent.
   SPERRY, Commissioner.

This suit is based on plaintiff’s right to subrogation against defendant. The case was tried to the court on an agreed statement of facts and resulted in judgment for plaintiff in the sum of $10,144.26. Defendant appealed.

Plaintiff, engaged in the automobile insurance business, in Missouri, issued its policy to Roberta E. Spargur, of Kansas City, Missouri, insuring her against liability for personal injuries inflicted by or through the operation of her 1952 Chevrolet passenger automobile described therein. The contract became effective July 14, 1955, and was in full force at all times material herein. The extent of personal injury liability covered by the policy was $15,-000.00 for any one person. That feature of the policy was extended to cover anyone operating the automobile with Miss Spar-gur’s consent.

On February 25, 1961, while this automobile was being operated by Mr. Kilby F. Johns, with the consent of Miss Spargur, and while its ownership was vested in Miss Spargur, it struck and injured a Mr. Scog-gins, a pedestrian, on a Kansas City street. Mr. Scoggins sued Johns and plaintiff settled and satisfied that claim for personal injuries in the amount of $11,500.00. In defending and settling said claim it incurred expenses, in addition to that amount, in the sum of $1,678.52.

Miss Spargur authorized Johns to use her automobile, above described, since she owned another and newer automobile which she had acquired. From that time forward, Mr. Johns kept the automobile in his possession and paid all expenses thereon, including licenses, repairs, and gasoline. He was using it when he became an employee of Jenkins Music Company. Immediately after Johns was employed, in 1958, Jenkins caused to be issued to Mr. Johns a certificate of insurance issued by defendant, naming therein Jenkins and Johns as insureds. The Chevrolet automobile herein mentioned was described in that certificate. The coverage was for $50,000.00, for personal injuries suffered by any one individual in any one accident. That certificate did not insure against any loss or damage to the automobile itself, in any manner. All premiums had been paid thereon and it was current when this casualty occurred.

Johns testified to the effect that, after the accident occurred, he was sued and summons was served on him; that he notified defendant; that its agent contacted him and investigated the circumstances; that he told Johns that the loss would be adjusted and settled; that, later, defendant declined to pay the claim or to defend the suit; that it notified him to contact plaintiff, that plaintiff was primarily liable for the loss, up to $15,000.00; and that defendant would only be liable for any excess over and above $15,000.00, (the suit was for $40,000.00), within the limits of its coverage. Johns then notified plaintiff of the casualty and plaintiff assumed the defense of the suit, with defendant’s full knowledge. Defendant refused to participate in the defense in any way, taking the position that plaintiff, alone, was liable to the full extent of its coverage, and that defendant was liable only for the excess, if any, over and above plaintiffs liability under its policy. It is agreed that the sum paid by plaintiff herein, including attorney fees and other expenses, is reasonable. Plaintiff says it is entitled to recover fifty/sixty fifths of that amount on the theory that defendant should pay its pro rata share of the loss based on the total coverage. The sum adjudged to plaintiff against defendant is correct and in accord with that theory, if plaintiff is entitled to recover under its theory of liability.

The evidence is to the effect that neither party knew the other had issued a policy covering this automobile, prior to the loss; but plaintiff knew that Johns was operating the vehicle while working for Jenkins, with Miss Spargur’s consent; and defendant had been told, through Jenkins, that there was other insurance on the car. Defendant now, weakly, contends that it is not liable under any theory because Johns was not operating the vehicle, at the time the accident occurred, on any business connected with Jenkins. When defendant first denied liability it was on the theory that it was liable under its policy only after liability under plaintiff’s policy was exhausted. It is a general rule of law that, having denied liability for a stated reason, an insurer may not, later assert a different one. McCarty v. United Insurance Company (Mo.App.), 259 S.W.2d 91, 94; Carroll v. Union Marine Insurance Company (Mo.App.), 249 S.W. 691, 692; Ash Grove Lime & Portland Cement Company v. Southern Surety Company, 225 Mo.App. 712, 39 S.W.2d 434, 441; Goffe v. National Surety Company, 321 Mo. 140, 9 S.W.2d 929, 938.

Defendant issued its certificate, describing this car, and both Jenkins and Johns are named therein. The language of the certificate does not limit defendant’s liability except as to amounts it is to pay in case of loss, and as to coverages, to wit:

100,000; “Bodily injury liability, .each occurrence,
10,000.00; “Medical payments, .each occurrence,
1,000.00;” “Medical payments.. each person,

Furthermore, after the casualty occurred, defendant did not cancel the policy but merely increased Johns’ premium and the policy remained in effect until Johns left Jenkins employ. Defendant’s contention that it is not liable because the automobile was not being used in connection with Jenkins’ business when the casualty occurred is denied.

Mr. Johns testified to the effect that, immediately after he became an employee of Jenkins, Mr. Limbacher, his supervisor, told him that he would be required- to take out an insurance policy on the automobile; that Johns told him that the vehicle was already insured; that Limbacher stated, over the telephone, that he must have a company policy and requested him to furnish a description of the car that he was driving; that, he, Johns, on the following day, furnished the description of the Chevrolet as it appears in the certificate of insurance; that he, at no time, signed an application form, nor did he ever see the certificate which was issued to Jenkins by defendant. He stated that he was sent a card which bears the following on its face:

The back of this card contains only data which should be furnished to defendant in case the insured vehicle should be involved in an occurrence that might give rise to a claim for damages.

Defendant’s chief contention is, as it was before plaintiff paid the claim for damages, that it is not liable on its policy except as an “excess” insurer, and that plaintiff’s total expenditure was less than its liability under its policy. We confess to some difficulty in fully understanding the logic of this contention, as presented. It seems to be based on a theory that, since the certificate issued to Johns under the master policy issued to Jenkins, AC224214, referred to the automobile as being “owned” and since it was not, in fact “owned” by Johns, as that term is defined in the master policy, some less coverage, other than full “primary” coverage, exists. Such contention may not be based on the fact this is a temporary substitute automobile because it is the automobile described as insured. Defendant refers, in its brief herein, to definitions of an “owned” automobile, and of a “non-owned” automobile, as the same appear in the master policy. Such definitions or differentiations do not appear in certificate C102060 issued for and covering Johns. Johns testified to the effect that he never saw either the certificate or the master policy; that he was told that he must have “compan}-” insurance on the car he was driving; that he told Mr. Limbacher that there was insurance on the car; that Limbacher stated that, nevertheless, he must take out a “company policy”; that he must send in a description of the car; and that he did so. This testimony was not contradicted in any manner. He paid half of the annual premium thereon, and Jenkins the other half, from 1958 until the accident occurred, in 1961, and thereafter until he left Jenkins’ employment. Johns did not misrepresent the ownership of the title. He was not asked about it at any time. He did not see any instrument issued by defendant or Jenkins except Exhibit “E-b”, above set out. He made no false representations and was unaware of any claimed restrictions .in his policy. The ownership of an automobile is'irrelevant to the validity of an insurance policy covering only liability for bodily injuries and property damages. Hall v. Weston (Mo.), 323 S.W.2d 673, 679; Kahn v. Lockhart (Mo.App.), 392 S.W.2d 30, 37.

In North Kansas City Memorial Hospital v. Wiley (Mo.App.), 385 S.W.2d 218, 223, the court said:

⅜ ⅜ ⅜

“Our interpretation is in accordance with the usual rules of interpretation for insurance contracts. Missouri cases are legion which hold that, if there is reasonable doubt, or uncertainty as to the meaning of the language used in a policy of insurance and it is fairly susceptible of interpretation in favor of the insured, such meaning will be adopted. This is because it is the intent expressed in the policy that is to control and if the policy is reasonably susceptible of two or more interpretations, that which will sustain the insured’s claim must be adopted. Weinberg v. Globe Indemnity Co., Mo.App., 355 S.W.2d 341, 1. c. 347; Nationwide Mutual Ins. Co. v. Schilansky, D.C.Mun.pp., 176 A.2d 786; Gage v. Connecticut General Life Ins. Co., Mo.App., 273 S. W.2d 761, 47 A.L.R.2d 1234. It is a general rule of law that a contract or a policy of insurance should be given a liberal construction so as to uphold it and accomplish the purpose or object for which it is made, rather than a strict technical construction which may defeat such purposes. Grafton v. McGuire, 362 Mo. 882, 245 S.W.2d 69, 44 C.J.S. Insurance § 297, page 1165; Davis v. Liberty Mutual Ins. Co., 8 Cir., 308 F.2d 709.”

* * *»

Applying the above rules to the facts here in evidence we must hold, as did the trial court, that defendant’s certificate of insurance covered damages for bodily injuries suffered by Mr. Scoggins in this casualty, to the full extent of $50,000.00, for which Mr. Johns was legally liable. The certificate, as issued, plainly so states. The question as to limitations of liability on a “non-owned” automobile does not affect defendant’s liability in this case because the Chevrolet automobile involved herein is specifically and positively described in the certificate of insurance issued. This is not a case where Johns was, at the time the casualty occurred, operating another and different vehicle than the one which defendant specifically insured. In describing the vehicle, if defendant chose to use language, in some document that Johns never saw, which might give rise to a specious and technical defense in this action, nevertheless the plain, ordinary meaning of the language of the policy must be given effect. Mr. Johns was insured against this claim by the very terms of the policy, which specifically described the vehicle insured and which he was operating when the casualty giving rise to this claim occurred.

Defendant has, at all times, insisted that the loss herein was one which plaintiff, alone, was bound to pay under its policy issued to Miss Spargur, and under which Johns was an insured. Defendant denied that it was liable under its policy, issued to Johns, on the ground that it was bound only to pay any loss in excess of the amount of $15,000.00, the amount of the plaintiff’s policy. Defendant refused to defend and advised Johns to demand that plaintiff defend the suit. Defendant was fully advised, at all times, of the nature and progress of plaintiff’s negotiations leading up to the final settlement of the claim, and agrees that the amount paid in settlement thereof was reasonable. It now denies the right of plaintiff to maintain this suit under its claimed right of subrogation.

One reason advanced in support- of this contention is that plaintiff may not subro-gate against its own insured. In Northwestern Mutual Ins. Co. v. Haglund, 387 S.W.2d 230, 231, this court, while not ruling the point, strongly indicated that such is the law. However, that principle has no application here because plaintiff has not sued either of its insureds, Miss Spargur or Mr. Johns. It seeks recovery from a co-insurer of the amount paid on a pro rata basis.

The facts in this case are very similar to those in Liberty Mutual Ins. Co. v. Standard Accident Ins. Co. (U.S.D.C.S.D.N.Y.), 164 F.Supp. 261. In that case both plaintiff and defendant had issued policies to the same insured. Each policy contained similar clauses concerning “other insurance” and “subrogation”. That is also true in the instant case. On pages 263 and 264, the court said:

“ * * * The amount paid in settlement fixes the amount of the loss which the co-insurers must share. True the amount paid must be reasonable, cf. Royal Indem. Co. v. American Cas. Co., 5 Misc.2d 533, 159 N.Y.S.2d 45, but the fact that the payment was less than the judgment here is prima facie proof of its reasonableness. Plaintiff, by virtue of its payment and under the terms of the subrogation clause, was subrogated to all rights which the insured would have against defendant. If the insured had made the settlement and the payment after defendant’s disclaimer of coverage, defendant would have been liable to the insured for its share of the settlement payment. Defendant is similarly liable to plaintiff under the terms of the subrogation clause. This conclusion is in accord with Commercial Standard Ins. Co. v. American Emp. Ins. Co., 6 Cir., 209 F.2d 60. See also United States Guarantee Co. v. Liberty Mut. Ins. Cas., 244 Wis. 317, 12 N.W.2d 59, 150 A.L.R. 632; Detroit Auto. Inter-Ins. Exchange v. Detroit Mut. Auto Ins. Co., 337 Mich. 50, 59 N.W.2d 80.”

In United States Guarantee Co. v. Liberty Mut. Ins. Co., 244 Wis. 317, 12 N.W.2d 59, 150 A.L.R. 632, 636, the court said:

“ * * * The plaintiff by and under its contract with assured agreed ‘to pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon him by law for damages * * * ’. In paying the damages to Gaurkee it performed the terms of its contract with the assured, as the defendant had breached and violated its contract for a like liability. By the terms of its policy plaintiff was subrogated to the rights of the assured which, under the decisions, is a substitution of one person in the place of another with reference to a lawful claim or right. It is a device adopted or invented by equity to compel the ultimate discharge of a debt or obligation by one who in good conscience ought to pay it. Leonard v. Bottomley, 1933, 210 Wis. 411, 245 N.W. 849; Northern Assurance Co., Ltd. v. [City of] Milwaukee, 1938, 227 Wis. 124, 277 N.W. 149. If assured had made settlement with Gaurkee and was the plaintiff in this action, defendant would be liable for the amount now claimed. By payment of the entire amount, plaintiff is substituted in place of the assured with reference to a lawful claim or right. When defendant violated the contract by refusing to defend the Gaurkee action, a settlement by plaintiff and payment of the full damages did not make plaintiff a volunteer or interloper as to the payment for which this defendant is liable. * * * ”

In State ex rel. McCubbin v. McMillian, (Mo.App.), 349 S.W.2d 453, 1. c. 459 and 460, and 461, the court reached the same result as is stated in the above decisions.

We hold that the judgment rendered in this case is for the right party, on the right theory, and for the correct amount due plaintiff. It is, therefore, affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.