author: CLEMENS, Commissioner.

text:
    Loretta ALLEN and Thomas M. Allen, Plaintiffs-Respondents, v. Jane C. GIBBONS, Defendant, and Aetna Casualty and Surety Company, Garnishee, Appellant.
    No. 32803.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1968.
    Motion for Rehearing or for Transfer to Supreme Court Denied Feb. 20, 1968.

      H. L. C. Weier, Dearing, Richeson, Weier, Roberts & Wegmann, Hillsboro, for appellant.
    Thurman, Nixon, Smith & Howald, Robert Lee Smith, Hillsboro, for respondents.
   CLEMENS, Commissioner.

Plaintiffs had a $5,000 uncontested judgment against defendant Jane C. Gibbons, the daughter of the garnishee’s insured. Plaintiffs then garnished the insurer, appellant Aetna Casualty and Surety Company, and got a verdict and judgment against Aetna for the $5,000 plus interest and costs. Aetna has appealed, attacking (1) the validity of plaintiffs’ original $5,000 judgment on the ground it was indefinite and, thus, insufficient to support plaintiffs’ garnishment, and (2) the failure of plaintiffs’ evidence in the garnishment trial to show that the original defendant was an insured under the omnibus clause in Aetna’s liability policy carried by her father.

We will identify the parties and then recite the proceedings in the primary case leading up to plaintiffs’ $5,000 uncontested judgment, on which they base their garnishment.

Plaintiff Loretta Allen and her son, Thomas M. Allen, owned and lived in a house trailer in rural Washington County. Defendant Jane C. Gibbons drove a car off the highway into the trailer, injuring Mrs. Allen. She filed suit against Jane Gibbons in the circuit court of Washington County for $20,000 personal injuries. An answer was filed by Jane Gibbons’ attorney. Thereafter an amended petition was filed by Loretta Allen and Thomas M. Allen, re-alleging Mrs. Allen’s personal injuries and alleging $1,400 damage to their house trailer; the two plaintiffs, in a single count, prayed for $15,000 damages. In due time the case came on for trial (before the predecessor of the present trial judge). After both Loretta Allen and Thomas Allen had testified, the court rendered a $5,000 judgment.

Aetna’s first attack is based on the court records regarding that judgment. There were three entries: on the judge’s docket sheet, in the clerk’s minute book, and in the court record. At trial time the judge’s docket sheet was still captioned “Loretta Allen vs. Jane C. Gibbons,” although it bore a notation showing the filing of the amended petition in which Thomas M. Allen was a co-plaintiff. The judge’s docket sheet then recites: “Larry Casey withdraws as attorney for defendant. Plaintiff appears in person and with her counsel. Plaintiff presents her evidence and submits her case. Judgment for plaintiff in the amount of $5,000.00 and costs.” The clerk’s minute book entry reads: “Loretta Allen versus Jane C. Gibbons, Case No. 4361; Larry J. Casey withdraws his appearance. Judgment for Plaintiff in the amount of $5000.-00.” The circuit court record contains the following entry: “Now at this time Larry J. Casey withdraws his appearance as attorney for Defendant. Judgment entered for plaintiff in the amount of $5000.00.”

Aetna contends that only a valid judgment can support a garnishment, and that the judgment here is void since it failed to name both plaintiffs, since it did not say whom it was rendered against, since it did not show whether it was by default or trial by the court or a jury, and since it did not separate the amounts awarded for personal injuries and for property damage.

We must first decide exactly what Aetna is attacking. Is the court’s judgment to be determined only by the words written on the court’s records (Aetna’s contention), or is it to be determined by what the court obviously meant and should have written in view of the nature of the action the court had tried (plaintiffs’ contention)? We note that Judge Lamm, in Spindle v. Hyde, 247 Mo. 32, 152 S.W. 19[5], said: “ * * * a judgment is but the conclusion in a syllogism having for its major and minor premises the issues raised by the pleadings and the proofs thereon. A judgment is the sentence of the law upon the record.” Thus, in determining what the court’s judgment was we look beyond the mere words written by the judge and the court’s clerk. We distinguish between the force of the judicial act of the court in rendering judgment and the ministerial act of entering it upon the record. The rendition controls. Lieffring v. Birt, 356 Mo. 1092, 204 S.W.2d 935[2-5]; Rehm v. Fishman, Mo.App., 395 S.W.2d 251[6-9].

In case of doubt about a judgment we are not restricted to the four corners of the record entry, but may look beyond that. In State ex rel. Whatley v. Mueller, Mo.App., 288 S.W.2d 405 [5-7], we dealt with enforcement of a judgment entry that was vague as to amount, and said: “ ‘An obscure judgment entry may, however, be construed with reference to the pleadings and record, and, where on the whole record its sense can be clearly ascertained, the judgment will be upheld.’ * * * Even though the judgment may not be complete within itself, and contain within its four corners the mandate of the court, it is nevertheless sufficient if it can be made perfect by reference to the pleadings or papers on file in the case.” This principle was followed in McGowan v. St. Louis Union Trust Co., Mo., 369 S.W.2d 144, to determine the identity of the parties.

The case of State v. Haney, Mo., 277 S.W.2d 632[4], 55 A.L.R.2d 717, was an action for enforcement of a bond forfeiture. The judge’s minute entry read: “Judgment by default as to Defendant, Principal and Sureties. Fieri Facias Writ ordered as to all.” There was no other record of the judgment. In challenging execution the defendant contended the judgment was void because the docket entry named neither the parties nor the amount. But the court upheld the execution, saying: “It is a well settled rule of law, approved by text writers and this court, that if there is any uncertainty in the judgment as to the party for or against whom it is rendered, it is proper to look to the entire record, including the pleadings and process to ascertain for or against whom the judgment is rendered.” And in Mehlstaub v. Michael, 221 Mo.App. 807, 287 S.W. 1079 [12], there was a verdict against two defendants but the judgment entry was against “the defendant.” The court applied the statement in 33 C.J. 1198: “A judgment for ‘plaintiff,’ when there are several plaintiffs in the case, * * * will not be void, if the record as a whole shows clearly, and without any doubt, for and against whom the judgment is intended to be given.”

We apply these principles to the judgment here. At trial time the judge’s docket sheet still bore the original caption naming Loretta Allen as the only plaintiff; it did show, however, the filing of the amended petiton that named both Loretta Allen and Thomas M. Allen as plaintiffs and prayed for a single judgment — and both plaintiffs testified in support of that prayer. Under the stated legal principles, we assess the judgment rendered here in the light of that entire record: In legal contemplation the judgment was in favor of both plaintiffs Loretta Allen and Thomas M. Allen (although the singular word “plaintiff” was written), and against defendant Jane C. Gibbons (even though she was named only by reference).

As said, Aetna also attacks the plaintiffs’ original $5,000 judgment on two other grounds: it “did not show whether it was by default, by trial before the court, or by jury” and it “did not dispose of the separate claims for property loss and personal injury.” Aetna’s citations support neither attack. Moreover, these are mere irregularities, unavailable to Aetna because they do not rise to the required level of jurisdictional defects affecting plaintiffs’ judgment. Row v. Cape Girardeau Foundry Co., Mo.App., 141 S.W.2d 113[2, 3].

Having found that plaintiffs’ original judgment is valid — and therefore a proper basis for garnishment — we pass to Aetna’s second point, arising in trial of the garnishment action. There, the plaintiffs had to show that defendant Jane C. Gibbons was an insured under Aetna’s liability policy carried by her father. This called for evidence that she resided in his household, and that she did not herself own an automobile. To prove this last element of non-ownership, plaintiffs produced Jane Gibbons’ father, Winfield Young. Aetna says the court erred in failing to sustain its hearsay objection to a question about ownership. We quote:

“Q Did she at that time own an automobile ?
“MR. WEIER: I object to that, if the Court please. That is calling for a conclusion of this witness that would be based entirely on hearsay.
“THE COURT: All right.
“MR. SMITH: Q To your knowledge, Mr. Young, did your daughter own an automobile? A No, she didn’t.
Q Did she ever drive down here in Washington County an automobile that was said to be owned by her? A No.”

Aetna’s point fails, for two reasons. First, its objection was not overruled. The court’s statement (“All right”) was indefinite, but in effect it sustained Aetna’s objection. This is apparent to us — and must have been to the parties — since the witness did not answer the question. Second, there was no prejudice to Aetna. After the court’s ruling on Aetna’s hearsay objection, plaintiffs’ counsel asked another question, one that called for an answer based on personal knowledge. Aetna did not object to that nor to the next question that called for evidence of non-ownership based on reputation. Aetna’s evidentiary point is denied.

The judgment will be affirmed.

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, judgment is affirmed.

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


source: Caselaw Access Project

author: MAUGHMER, Commissioner.

license: Public Domain

text:
    FARMERS UNDERWRITERS ASSOCIATION, Truck Underwriters Association, Fire Underwriters Association, for themselves and as attorneys-in-fact for the Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange, Mid-Century Insurance Company, Farmers New World Life Insurance Company, Plaintiffs-Respondents, v. Maurice G. REID, Defendant-Appellant.
    No. 24611.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 5, 1968.
    Application to Transfer Denied April 8, 1968.

      James L. Muller, Muller & Muller, Kansas City, for appellant.
    Heilbron & Powell, by Sylvester Powell, Jr., Kansas City, for respondents.
   MAUGHMER, Commissioner.

Plaintiff insurance companies were granted a temporary injunction enjoining defendant “from soliciting, accepting or servicing the insurance business of plaintiffs’ members and policyholders for a period of one year” after termination of his contract. The year passed before hearing was held on the question of making the injunction permanent. Therefore, because of the time element, the injunction was dissolved. However, defendant sought a declaration that the temporary injunction had been improvidently granted and moved for a jury trial to assess his damages. The court, after hearing the evidence, ruled the injunction had been providently granted and denied defendant a trial for alleged damages. The defendant has appealed.

On January 20, 1961, the parties entered into a written contract styled “Agent’s Appointment Agreement”. Thereunder defendant was appointed agent for plaintiffs in the Kansas City area to represent those companies in the production of all types of insurance business written by them. Paragraph “E” of the Agreement provided it might be terminated (1) by either party on 30 days’ notice; (2) without notice “in the event of fraud or embezzlement * * * or the failure to promptly remit such funds of any of the Companies by the Agent”, or for “failure to promptly remit such funds in accordance with prescribed rules, * * * Under these prescribed rules, premium payments — original or renewal — were to be sent immediately to the companies. If renewal premiums were not received when due, the branch manager’s office sent Avoid Cancellation Notices and later if payments were not received, Cancellation Notices were sent- to the policyholders. The Agreement also contained the following under Paragraph “G”:

“In the event of cancellation or termination of this Agreement by either party, for whatsoever reason, the Agent will not, for a period of one year from the effective date of cancellation or termination, directly or indirectly, in any manner solicit, accept or service for or on behalf of himself or any insurer, agent or broker, the insurance business of any members or policyholders of any of the Companies within the County or Counties in which the District is located, or within the immediate adjoining Counties, nor will he use or divulge any information or list concerning any of such policyholders or their policies”.

Mr. Tom Rossner, Division Agency Manager for plaintiffs, served as liaison between the companies and the agent. He testified that defendant had delayed (longer than the rules prescribed) in remitting premiums on some 35 policyholders; that a Mr. Dusenberry had paid part of a new policy premium on October 27, 1963, but defendant had not remitted to plaintiffs until November 19, 1963.

Mr. Dexter Harvey, District Manager for plaintiffs, testified that early in December, 1963, he became aware of discrepancies in the manner of premium remittances by defendant. He stated that an insured, Alvin B. Hannsz, sent his check for $219 to defendant on November 8, 1963, but defendant applied this payment to other accounts. He said Hannsz was given credit by defendant on November 29, 1963 for $76.65 and this credit was from funds paid by other policyholders, and Hannsz was credited with the balance on December 7, 1963; this, too, being from funds paid by other policyholders. Mr. Harvey declared that his investigation of the plaintiffs’ records revealed 41 such discrepancies. He specifically referred to five accounts (Dusenberry, Thomas, Hannsz, Kreegar and Winfrey) whose payments had not been promptly remitted. Mr. Harvey testified that a check from a policyholder, Mr. Brunson, for $166.80, went through the office on October 16, 1963, but Brunson was not credited until December 11. All of these matters were called to the attention of defendant and on December 22, 1963, he brought his accounts up to date.

On December 30, 1963, Mr. Tom Rosner, the Division Agency Manager, terminated defendant’s agency agreement because of such discrepancies and pursuant to the provisions of the contract. The Agreement also contained a proviso that in the event of termination, the agent would be given an opportunity to sell for a sum to be determined by multiplying the commissions paid for the preceding six months by two. Defendant decided not to sell and did not sell. It was under a very similar situation that defendant had first become involved as plaintiff’s representative.

District Manager, Dexter Harvey, also testified that shortly after termination of defendant’s agency he began to receive cancellation notices from policyholders whose accounts had been assigned to and serviced by defendant. Defendant had retained possession of the plaintiffs’ premium levy list which showed the policyholders’ names, addresses and expiration dates. He said that this list included about 1,000 policyholders, and that from December 30, 1963 until June, 1964, 121 of these clients were lost, but that between June 30 and December 30, 1964, after the injunction, only 24 were lost.

Leta Newman testified that she had been a Farmers policyholder since 1950; that in June, 1964, she wanted to make some changes in her coverage and called defendant about it; that he sent her a policy with a different company, which she refused to accept. Mr. O. S. Cawthon, an Independence, Missouri business man, had been a client of Farmers “for 10 or 12 years”. In January, 1964, he went to defendant’s office and gave him the premium money for policies on his two automobiles. He said he was unaware that defendant no longer represented Farmers, and that later he received the two policies but the same had been issued by another company.

Mr. Eddie Collins, a fireman for the City of Sugar Creek, had been a Farmers policyholder since 1951. He said defendant contacted him in January, 1964, and suggested or talked with him about changing to another company — that it would be a little cheaper. Mr. Collins stated that he decided to stay with Farmers.

Parts of defendant’s deposition were read in evidence. He admitted holding premium collections for as long as two or three weeks, admitted he contacted plaintiffs’ policyholders after termination of his contract, and that he placed 62 of those policyholders with another company, or other companies. Defendant, testifying as to his procedure in remitting premium payments, said some policyholders would pay well in advance of the due date — others waited until the premiums were due. As to making remittances, he said: “My primary purpose was to remit the funds prior to the expiration day or cancellation date on the policies”. He also testified that after consideration he determined to and did refuse the company’s offer to sell for $8709.04 (two times the service commissions paid to him during the six months’ period immediately preceding the date of cancellation) as provided in Paragraph “F” of the Agreement. He said he based his decision on his opinion that he could do better in competition. He admitted that he accepted and wrote business for former policyholders of plaintiffs until he was enjoined. He then went into another type of business. Defendant admitted that in some instances he used various policyholders’ payments to pay premiums on other and different policies. He said his new companies mailed out notices to plaintiffs’ policyholders announcing defendant’s termination with Farmers.

On May 11, 1964 ($5,000 bond required) the court issued its decree of temporary injunction under which defendant was “enjoined and prohibited from directly or indirectly in any manner soliciting, accepting or servicing for or on account of himself or any insurer, agent or broker, the insurance business of any members or policyholders of the (naming plaintiff companies) that were formerly assigned to his agency within Jackson County and the counties immediately adjacent thereto, and defendant is enjoined and prohibited from directly using or furnishing to others any information or list concerning any such policyholders or their policies”.

Defendant filed answer and a motion to dissolve. The issues therein raised and upon which defendant relies on appeal will be referred to hereinafter. On December 29, 1964, the court, having been advised as to the one year time limitation, amended the temporary injunction so as to make it inoperative after December 30, 1964, or one year after date of termination of the Agreement.

Defendant contends (1) the contract was invalid and unenforceable because it nullified defendant’s right of ownership of the good will of the business; (2) plaintiffs are estopped to enforce the contract; (3) plaintiffs knew the manner in which defendant had been making remittances for three years and therefore waived any right to object. Defendant also moved for a jury trial to assess his claim for damages. On December 20, 1965, the court took up the issues raised by defendant’s pleadings, heard the evidence and on February 21, 1966, entered findings of fact and a judgment as follows in part (summarized) :

“(1) That defendant Reid failed to remit funds promptly of the plaintiff companies and failed to remit promptly funds in accordance with the prescribed rules of plaintiff companies;
“(2) That plaintiffs first acquired knowledge on December 7, 1963 that defendant had not remitted funds promptly and in accordance with the companies’ prescribed rules; the Court finds no evidence that plaintiffs waived their right to terminate the agreement because of defendant’s failure to remit funds promptly; the Court further finds that plaintiffs’ vice-president and regional manager made no representations to defendant advising defendant that should he decide not to sell his agency he would be free to solicit and accept the insurance business of plaintiffs’ policyholders;
“(3) The Court further finds that following the termination of said Agent’s Appointment Agreement defendant did contact and solicit the policyholders of plaintiff companies; * * * that defendant did cause more than 60 policyholders of plaintiff companies to cancel their policies with plaintiff companies; that defendant did use the premium levy lists provided defendant by the companies in soliciting the policyholders;
⅜ ⅜ ⅜ ⅜ ⅝ ⅝
“(4) That plaintiffs had no adequate remedy at law and would be irreparably damaged unless defendant was enjoined; * ⅜

Then followed the decree that judgment be entered in favor of the plaintiff companies; that the temporary injunction was providently granted and that costs be assessed against defendant.

Appellant contends that on appeal we review this equity case de novo. This is true. However, Section 510.310(4), V.A. M.S. provides that in cases tried without a jury: “The judgment shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses”. The same direction as to appellate review is found in Rule 73.01(d), V.A.M.R.

In the instant case defendant had been the representative of plaintiff companies for just under three years. He was servicing over 1,000 Farmers policyholders. Some of. these insureds had been clients of Farmers for many years. The business was clearly not entirely the product of defendant’s efforts. He had bought in as agent in the Jackson County area from a predecessor representative, whose relationship had been terminated for failure to make remittances promptly and under a contract similar to the one which is involved here.

The Agency Appointment Agreement out of which this litigation arose plainly, unambiguously and pertinently to this litigation provided: (1) the companies could terminate if the agent failed to remit premium payments promptly. The evidence does show such failure. Plaintiffs’ managers and representatives so testified, citing specific examples and defendant admitted such was the fact; (2) the plaintiffs did so cancel; (3) in the event of cancellation, defendant agreed not to secure or attempt to obtain any of the accounts of plaintiffs which he had been servicing for a period of one year. The evidence shows violation of this agreement; (4) in the event of cancellation, defendant was by contract afforded the privilege or granted the option of selling his interest for a sum equal to two times the renewal premiums collected from such business for the six months immediately preceding cancellation. The evidence shows defendant was offered such opportunity and plaintiffs had produced a buyer therefor under these terms who was ready, willing and able and whom plaintiffs would approve, but defendant elected not to accept and not to sell.

It also seems apparent that plaintiffs had no adequate remedy at law by which they could stop the contract violations. Therefore, the injunction was providently granted and the judgment should be affirmed unless (and these are the points defendant presents on appeal) : (a) the contract itself is invalid and unenforceable because it nullifies defendant’s alleged right to sell the good will of the business and because the contract is in restraint of trade and against public policy or (b) plaintiffs are estopped because they had induced defendant not to sell and to suppose they would not rely upon the covenant not to compete for a period of one year or (c) plaintiffs waived the prompt remittance requirement by allowing the defendant, without objection, to follow the practice of delayed payments for nearly three years.

We do not believe the contract is invalid. In 43 C.J.S. Injunctions § 148 pp. 7SS, 756, we find this statement:

“It is generally agreed that injunction will lie to prevent use or disclosure by an agent or employee of knowledge of the names of the customers of his former principal or employer, or of the customs, requirements, and preferences of such customers, where such information is of a confidential nature, not ordinarily ascertainable by the general public, and was obtained by the agent or employee for a specific purpose or by virtue of a fiduciary or confidential relation between him and his principal or employer; * * *

In City Ice & Fuel Co. v. Snell, Mo.App., 57 S.W.2d 440, 442, defendant by written contract agreed that if he left plaintiffs’ employ he would not for one year thereafter, sell, solicit or deliver ice, coal or fuel oil in the area. The trial court refused to enjoin. On appeal the contract was ruled to be valid and the injunction was ordered to issue, the court saying:

“The restrictions of the contract herein are limited as to time, namely, one year after the employee leaves the employment of the company. They are limited as to place, for they apply only to a particular territorial district within the city of St. Louis. They are further limited to apply only to selling, soliciting, delivering, and collecting for ice, coal, or fuel oil within the period and the territory named. In so far as this contract is concerned, defendant is free to engage in any business of any character whatsoever anywhere outside of the territorial district named. Within that district he is free to engage in any business except the particular activities named. Contracts of the nature of the one here involved have been upheld by the courts of this state in numerous cases. Attacks on such contracts have been made on various grounds, but it is now well established by the decisions of our Supreme Court and appellate courts that contracts similar to the one in this case are based upon a sufficient consideration, namely, the mutual promises of the parties, are not void for want of mutuality, are not against public policy, and are not void on the ground of restraint of trade”.

To the same effect is the comment in Renwood Food Products, Inc. v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144, 150, 151:

“Covenants of the kind here involved, being in restraint of trade, were first regarded by the courts as contrary to public policy and hence invalid. The reason for such rule was two-fold, namely, injury to the public and injury to the employee. The restraint worked injury to the public by depriving it of the industry to which the employee was best suited, and tended to cast the employee and his family upon the public for support. It also fostered monopolies, prevented competition, and tended to raise prices, (citing cases). The doctrine had its origin at a time when the field of human enterprise was limited, and each man’s industrial activity was necessary to the material welfare of his community. Travel was difficult, and the conditions of the times were unfavorable to the migration of persons seeking employment. Skrainka v. Scharringhausen, 8 Mo.App. 522, 28 Col.Law Rev. 81. But, with the improved facilities of travel, and the growing ability of workers to adapt themselves to different occupations, the reason for the rule disappeared, with the result that the courts began to uphold reasonable restraints on employment on the theory that such covenants were beneficial to both parties — being beneficial to the employee for the reason that it enabled him to dispose of his services advantageously, and beneficial to the employer because it protected him against a competition which would not otherwise have existed except for the employment, (citing cases).
“Also important in the changed attitude of the courts was the realization of the importance of requiring persons who, by the solemnity of contract, had assumed certain engagements, to observe them”.

This court in Fred A. H. Garlichs Agency Co. et al. v. Anderson, Mo.App., 226 S.W. 978, upheld a restrictive covenant covering Buchanan County and forbidding defendant from there engaging in the insurance business for five years. Again, our court in Thompson et al. v. Allain, Mo.App., 377 S.W.2d 465, upheld a restrictive covenant of three years covering an area within a radius of fifty miles from St. Joseph as to the practice of medicine.

In our opinion this contract is valid and enforceable. We shall not quibble as to “good will”. Whatever defendant’s rights consisted of were covered by the contract and he should abide by them.

What we have just said and ruled as to the validity and enforceability of the Agency Agreement really disposes of appellant’s other points. The evidence shows and the trial court found that plaintiffs canceled the agreement. We find and the trial court found that defendant not only solicited, but actually procured business from policyholders of Farmers, and that he used the list of such policyholders which had come to him in his fiduciary capacity, in so doing. In our opinion the evidence shows neither es-toppel nor waiver and if this question were viewed as disputed under the evidence, we would defer to the findings of the chancellor, who had the advantage of seeing and hearing the witnesses. Defendant’s theory of estoppel is predicated upon the testimony of Lester Duncan, an employee of plaintiffs. Defendant says Mr. Duncan told defendant that he could either sell out or “battle Farmers for the business”. It is a fact that defendant could either sell out or “battle Farmers” for new insurance business, but not for the contracts already held by Farmers until one year had passed after which the whole field would be open. As to waiver, the preponderance of the evidence, in our opinion, and in the opinion of the trial judge, is that the contract was canceled soon after plaintiffs learned that defendant was not remitting promptly and was using some policyholders’ payments to pay premiums due on other accounts.

In State ex rel. Continental Ins. Co. of City of New York v. Becker, 336 Mo. 59, 77 S.W.2d 100, our Supreme Court ruled, syllabus 3:

“ ‘Waiver’ is intentional relinquishment of known right, and to make out case of ‘implied waiver’ there must be clear, unequivocal, and decisive act of party showing such purpose, or acts amounting to es-toppel on his part”.

We have read some of the numerous opinions referred to by appellant in his brief. Most of these opinions are from foreign jurisdictions. We do not believe that the conclusions and holdings therein, based upon the opinions themselves or upon the quotations therefrom in appellant’s briefs, are different from the law as declared in the Missouri opinions which we have cited hereinabove. For example, in Christensen v. Prudential Ins. Co. of America, Mo.App., 204 S.W.2d 459, cited by appellant, syllabus 1 states:

“An agent acquires no vested interest in renewals on writing of policy, but his right thereto depends on his contract with insurer, and, unless such right is expressly stipulated or clearly implied, he is not entitled to commissions on renewals after termination of employment”.

We believe the contract involved in this litigation is a valid and enforceable contract; that defendant has not shown either estoppel or waiver; that plaintiffs’ only adequate remedy herein is by injunction; that the necessary findings of fact made by the trial court are supported by substantial, competent evidence, furnish adequate support upon which to base the judgment and that the judgment itself is not clearly erroneous.

The judgment is, therefore, affirmed.

PER CURIAM:

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

HOWARD, P. J., and CROSS, J., concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


author: SPERRY, Commissioner.

text:
    Ralph A. ELSNER, Plaintiff-Appellant, v. Betty H. ELSNER (Shaffer), Defendant-Respondent.
    No. 24705.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 5, 1968.
    Application to Transfer Denied April 8, 1968.
    Arthur F. Schmahlfeldt, Walter A. Raymond, Raymond, West & Strader, Kansas City, for appellant.
    Lem T. Jones, Jr., Russell S. Jones, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff instituted this law suit by filing a petition seeking partition of all real and personal property, originally owned by the parties (then husband and wife) as tenants by the entirety and, after they were divorced, held as tenants in common. This property included their home in Kansas City, Missouri. By agreement of the parties, partition was decreed and neither party appeals from that part of the judgment.

However, defendant filed a three count counterclaim against plaintiff. In the first she sought discovery and an accounting of all property owned by the parties. In the second she sought a judgment for support furnished by her to the minor daughter of the marriage between the parties, from March 29, 1960, until date of trial. In the third she sought judgment against plaintiff for the reasonable value of support for herself, not furnished by plaintiff, from March 29, 1960, until the date of her divorce on June 5, 1962.

The court found for defendant on count two of her counterclaim for child support and allowed her the sum of $9,506.69 on this item, that being at the rate of $200.00 per month from March 29, 1960 (the date of separation) less $1,625.00, paid by plaintiff for support of the child prior to the entry of a California court judgment under the Uniform Reciprocal Support of De-pendants Act, (Runaway Pappy Act) Section 454.010 through Section 454.360, RSMo 1959, V.A.M.S., and payments made after the date of said judgment at the rate of $15.00 per week.

The court also found for defendant on count three of her counterclaim for her support, from March 29, 1960, to June 5, 1962, the date of her divorce, at the rate of $125.00 per month, a total of $3,132.88.

The court denied plaintiff’s claim against defendant for one half the rental value of their home during her sole occupancy subsequent to the separation.

Plaintiff appeals from the judgment except as to partition.

These parties were married in 1940; a girl child was born to them in 1950; they accumulated and owned, on March 29, 1960, as tenants by the entirety, a furnished four bedroom home of the rental value of $250.00 a month; other valuable real and personal property. Defendant occupied the home at the time of and after the separation. Plaintiff left the home, and Jackson County, Missouri, and removed to Napa, California, about March 29, 1960. He remitted to defendant various sums rather regularly, for the support of their child until March 8, 1962, upon which date the Superior court of Napa County, California, entered an order that plaintiff pay $15.00 per week thereafter for support of the child of that marriage. This action was the result of the institution of proceedings in the Jackson County Circuit court under provisions of chapter 454, RSMo 1959, V.A. M.S., supra. No order was entered concerning the support and maintenance of defendant. Defendant, as plaintiff in a divorce action in the Circuit court of Jackson County, Missouri, was granted a divorce June 5, 1962, and was awarded custody of their child. That judgment was based on the court’s findings as to the truth of plaintiff’s allegations in her petition, to the effect that her husband had been guilty of such conduct as to render her condition in life intolerable and had, without legal excuse or reasonable cause, absented himself from the home of the parties for more than one whole year; and that plaintiff therein was the innocent and injured party. The divorce court lacked jurisdiction to enter a personal money judgment against the husband in that case, and none was entered.

There was substantial evidence tending to prove that $200.00 per month was the reasonable amount needed for the support and maintenance of the child of the marriage during the years of the separation, and that defendant furnished all of such support, except for the sums paid to her by plaintiff, as determined by the court. Likewise, there was evidence tending to establish that $125.00 per month was a reasonable amount for the support of defendant from the date of separation until the date of divorce, considering the fact that she was not required to pay rent during that period. Plaintiff does not contend otherwise in this court.

However, he contends here, as he did below, that the California Superior court judgment awarding defendant here the sum of $15.00 per week for support of the child of the marriage was and is res judicata of that issue tried in this proceeding. He also contends that said judgment is res ju-dicata of the issue of defendant’s claim for her support and maintenance, although the California court made no order touching that issue.

The applicable sections of the California statute under which the Superior court of that state acted are Sections 1654 and 1689, Deering’s California Codes, Annotated, Civil Procedure.

It is therein provided that “The remedies provided in this title are in addition to and not in substitution for any other remedies”, and that any order of support issued by a California court when acting as a responding state “should not supersede any other order of support”. To the same effect see Desertion and Nonsupport, 23 Am.Jur.2d, Section 147 where the following appears:

“The Uniform Reciprocal Enforcement of Support Act provides that the order for support issued by the court of the responding state shall not supersede any other order for support, but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both. This provision is a positive declaration that an order for support issued by the court of the initiating state is not superseded by the order of support issued by the court of the responding state”. A judgment under this act does not bar a further action for maintenance and support. Figliozzi v. Figliozzi, D.C. Mun.App., 173 A.2d 904. See Stubblefield v. Stubblefield, Tex.Civ.App., 272 S.W.2d 633, 635. In “Interstate Enforcement of Family Support, (William J. Brockel-bank)”, page 70, the author states that support orders (of this character) are not judgments to which the constitution requires that full faith and credit be given. It is not required that the court of one state give greater effect to a statute of another state than do the courts of the enacting state. Constitutional Law, 16 Am.Jur.2d, 588. The Reciprocal Enforcement Acts of California and of Missouri are essentially similar in so far as they are applicable in this case.

Plaintiff complains of the judgment in that plaintiff was denied any recovery in this partition suit for and on account of one half of the fair and reasonable rental value of the property from the date of separation until the trial date of the partition suit. During that period defendant occupied the family home and plaintiff resided in California.

The court heard the testimony of both parties concerning the events and circumstances surrounding their separation on March 29, 1960, and found from the evidence that defendant had not ousted or excluded plaintiff from occupancy or use of the property. That finding, and the judgment thereon, is supported by substantial evidence and is not erroneous.

In Goforth v. Ellis (Mo.), 300 S.W.2d 379, 383, the court said:

“ * * *. The generally accepted rule at common law is that a tenant in common who occupies all or more than his proportionate share of the common premises and who has not agreed to pay therefor or ousted or excluded his cotenant or cotenants is not liable, because of such occupancy alone, to his cotenants for rent or for use and occupation. * *

Finding no error, the judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. HOWARD, P. J., CROSS, J., and KENNETH ELLIOTT, SPECIAL J., concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


text:
    Fred W. KINTY, Plaintiff-Respondent, v. UNITED BENEFIT LIFE INSURANCE COMPANY, a corp., Defendant-Appellant.
    No. 24679.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 5, 1968.
    Application to Transfer Denied April 8, 1968.
    Henry G. Eager, James H. McLarney, Swanson, Midgley, Jones, Eager & Gang-were, Kansas City, for appellant.
    Ivan E. Moody, Popham, Thompson, Popham, Trusty & Conway, Kansas City, for respondent.
   SPERRY, Commissioner.

On April 6th, 1953, defendant issued its life, health and accident insurance policy to plaintiff. All premiums falling due on the policy from that date until trial herein have been paid and the insurance contract was and is in full force and effect.

Plaintiff suffered serious bodily injuries, resulting in total disability, on May 3rd, 1963 (at age 52) while he was operating “an over the road” tractor-trailer truck on a public highway near Sedalia, Missouri. A dispute arose between the parties as to the amount which plaintiff was entitled to receive under the terms of the policy. Plaintiff instituted this suit and, in a trial to the court, recovered judgment for unpaid total disability benefits in the sum of $100.00 per month (under Part A of the policy) from May 3rd, 1963, to June 3rd, 1966, a total of $3,700.00; $300.00 for three months of hospital confinement, and $25.00 for hospital expenses (under Part H) or a total of $4,025.00; “plus waiver of premiums as provided in Part J of the policy, with credit in the sum of $833.34, paid by defendant after trial”. Defendant appeals.

When this policy was issued to plaintiff he was a citizen and resident of West Virginia. The evidence was that, on May 3rd, 1963, while operating a tractor-trailer in Missouri, in an effort to avoid a collision with an unidentified automobile the vehicle operated by plaintiff overturned and plaintiff was critically injured. His leg was broken and it was amputated; one eye was punctured and the sight was irretrievably lost; his skull was fractured, resulting in organic brain injury to such an extent that he is unable to orient, or to make normal decisions. He will be unable to retain his balance so as to walk, even with an artificial limb, and he received multiple lacerations and internal injuries so that blood passed through his bowels. He was confined to hospital for a period of more than three months, and the medical evidence is to the effect that, because of organic brain injury (without regard to the loss of his leg and eye) he will be permanently and totally disabled so that he cannot engage in any gainful occupation.

The policy was in evidence.

On its front or face appears the following, in bold type:

“This Policy is Renewable at the Option of the Company only and Provides Benefits for Loss of Life, Limb, Sight, or Time, from Accidental Bodily Injuries, or Loss of Time from Sickness to the Extent Herein Provided”.

The headline of the policy, at the top of the first page, in bold type, is as follows:

“This Policy is Renewable at the Option of the Company only and Provides Benefits for Loss of Life, Sight, or Time, from Accidental Bodily Injuries, * * ”.
“Monthly, Benefit “Principal Sum
$100.00”. $2,500.00”.

Under the heading “ACCIDENT INDEMNITIES”, the policy contains the following pertinent sections:

“Part A. TOTAL DISABILITY BENEFITS
“If the Insured, because of 'suth "injuries which do not result in any of the specific losses mentioned in Part L, shall he wholly and continuously disabled and under the professional care and regular attendance of a legally qualified physician, other than himself, the Company will pay indemnity for one day or more (benefits begin with the first medical treatment during disability) at the rate of The Monthly Benefit per month so long as the Insured lives and suffers total loss of time if the disability commences prior to the Insured’s sixtieth birthday”. (Emphasis ours).

On the second page appears the following:

“PART H. ADDITIONAL BENEFITS IF CONFINED TO HOSPITAL.
“If the Insured, because of such injuries or such sickness, shall be continuously confined within a hospital for one day or more the Company will pay:
“(a) Additional Benefit * * * An Additional indemnity at the rate of The Monthly Benefit per month for the period of such hospital confinement but not to exceed three months for any one accident or sickness.
“(b) Miscellaneous Hospital Expense * * * Expense actually incurred for Xray, Anesthetic, Laboratory, Operating Room, Routine Medicines, Oxygen Tent, Surgical Dressings, Ambulance Service, and other charges incident to any one period of hospital confinement, but not to exceed Twenty-Five ($25.00) Dollars in the aggregate for any one accident or sickness”.
“PART J. WAIVER OF PREMIUM
“If such injuries or such sickness shall result in disability for which benefits are payable under PART A or PART F of this policy and such disability shall have continued- uninterruptedly for a period of at least one year, the Company, provided the policy is then in force, will waive all premiums thereafter becoming due during the period of compensable disability, and the Insured shall be entitled to benefits as provided in the policy, subject to all its conditions except as to payment of premiums”.
******
“ACCIDENTAL DEATH, DISMEMBERMENT AND SPECIFIC INJURY BENEFITS.
“Loss in every case referred to in the following schedules in PARTS L and M of hand or hands, or foot or feet, shall mean severance at or above the wrist-joint or ankle-joint, respectively; and the loss of arm or arms, leg or legs, shall mean severance at or above the elbow-joint, or knee-joint, respectively; or in any case the total and irrecoverable loss of the use thereof. The loss of eye or eyes shall mean the total and irrecoverable loss of the entire sight thereof. Only one of the amounts (the largest applicable thereto) named in PARTS L and M will be paid for injuries resulting from one accident AND SHALL BE IN LIEU OF ALL OTHER INDEMNITY”.

On page three appears the following:

“PART L. SPECIFIC LOSSES.
“If such injuries shall continuously and wholly disable the Insured from the date of the accident and, independently of sickness and all other causes, result in any of the following specific losses within thirteen weeks and while the Insured is so disabled, the Company will pay for the loss of:
Life-Principal Sum
And in Addition, The Monthly Benefit per month for the period between the date of accident and date of death.
One Hand or One Arm --One-third Principal Sum
One Foot or One Leg-One-third Principal Sum
Either Eye-One-fourth Principal Sum.”
***********

Plaintiff’s position is that he is entitled to be paid $100.00 per month (and other benefits) for total disability, (so long as it may continue or for life) under the provisions of PART A of the policy. He contends that his total and permanent disability was caused by the brain injury he received exclusive of the specific loss of a leg and an eye. Defendant contends that it. is liable to pay only the amount provided for loss of a leg and an eye, under PART L., supra, or a total of $833.34. However, defendant concedes that, titled to recover under PART A of the policy, then the amount of the judgment is correct.

From all of the evidence, including the admissions, the policy, and the written medical statement of Dr. Wolcott, which was by agreement admitted into evidence, the court found that:

“1. Plaintiff sustained permanent organic brain damage which exclusively and independently of the loss of his eye and leg has wholly and continuously disabled him since the date of this accident”. (Emphasis ours).

⅜ ⅜ ⅝ ⅜ i|c ⅝

“3. Plaintiffs disabling brain injuries, which cause his major disability, do not result in the specific losses specified in PART L and are therefore in express terms excluded from the PART L limitation.” (Emphasis ours).

“4. The policy insured plaintiff against disability resulting from accidental injury, with limited disability coverage for the specific injuries described in PART L, and further provides full coverage for total and permanent disability under PART A caused by other injuries even though sustained in the same accident. The larger benefits given in PART A for unspecified injuries causing total disability cannot be reduced by the specific coverage of PART L where the PART L injuries do not cause his total disability. PART L would not apply to plaintiff unless the loss of his leg and his eye were his only disabling injuries”.

The court’s findings, as stated in paragraph 1, supra, is a correct statement of the conclusion that should be drawn from the evidence which, on this question, is un-contradicted. We also approve the trial court’s conclusion to the effect that the PART A provision is excluded from the PART L limitation, and that the latter does not apply in this case. According to the medical evidence, the organic brain injury is the single loss that resulted in plaintiff’s total (and permanent) disability.

Under the plain language of this policy the judgment in this case should stand. It is noted that, first, on the face of the policy; second, in the headline on the first page and, third, in PART A it is stated that payment for loss of time caused by accidental injuries is one of the benefits afforded by its provisions. The language used in connection with such benefit clearly indicates payment of $100.00 per month for total disability so long as such disability may continue. Not until we reach the last paragraph on page two of the policy do we find a reference to “Accidental death, dismemberment and specific injury benefits”. The nature thereof, and the benefits therefor are specifically set out on page three.

In Lemaitre v. National Casualty Company, 195 Mo.App. 599, 186 S.W. 964, the court considered a policy quite similar to the one before us. At page 966 the court said:

“Assuming that these clauses a and b are antagonistic to clause c, then the rule is, that the first is to govern rather than the following. O’Connor v. St. Louis American League Baseball Co., [193 Mo.App. 167,] 181 S.W. 1167. Applying that rule here, as we think it should be, and having regard to the fact that the policy itself by clauses a and b provide for total disability and partial disability specifically, and at a special rate and precede clause c, which is for specific total losses, we think the construction that the learned trial court put upon this policy is correct. It is a rule of construction of all contracts that they must be so construed as to make a harmonious whole; but it is also a rule, particularly applicable to insurance contracts, that the interpretation most favorable to the insured is to be accepted. That is not from any prejudice against, insurance companies, but because as is well known, the insurer prepares and dictates the terms of the policy and the insured has but little choice in its terms. He must take it or reject it as written by the insurer. Construing this policy on its face and having in mind what was probably most prominent in the mind of the insured, that is, to provide for loss of time in case of his disability and secure some compensation that would be immediately available to him, it would seem that he was more intent on weekly indemnity than on providing a fund available on his death. If the insured is to be remitted to the provisions in clause c to $300 in certain events, or to one-half, or one-third of that in others, then what becomes of the distinct contract to pay so much a month for so many months, when, as here, the latter would yield him $335.60, or might yield him twenty-four times $30, or $720? In this view the contract would be one-sided, and so appellant’s construction would make it. In short, appellant’s contention would entirely eliminate the feature providing for weekly indemnity. That is not the way contracts of insurance are to be construed. To adopt any such would make this contract a delusion and a snare”. (Emphasis ours).

In O’Connor v. St. Louis American League Baseball Co., 193 Mo.App. 167, 181 S.W. 1167, 1173-1174, the court declared the law to be that if two clauses of a contract are antagonistic and both cannot stand, the general rule is that the first will prevail over the second. If defendant is to prevail here we must hold that PART L takes precedence over all of the preceding provisions of the policy. Such a construction would result in rendering PART A wholly meaningless. This would be to violate fundamental rules generally, if not universally recognized and applied in the construction of insurance contracts.

Defendant relies heavily on the West Virginia case of Bates v. Inter-Ocean Casualty Company, 126 W.Va. 620, 29 S.E.2d 469. There plaintiff suffered an accident resulting in the amputation of one leg above the knee. Part I of the policy issued by defendant provided, under “Specific Losses”, that defendant would pay him for “loss of hand or one foot * * * two hundred dollars” in lieu of all other indemnity under this policy. Thereafter, under Part II of the policy, appeared a provision for payment of “weekly accident indemnity” for total loss of time. The court held that Part I and Part II of the policy “are expressly and distinctly segregated in their coverage” and allowed recovery under Part I. The loss of one foot (although severance was above the knee) was specifically covered and it was the only loss suffered. It was covered in the very first coverage provision of the policy. The facts, as well as the policy provisions there reviewed, are so different from those involved here that the decision is not applicable in this case.

There is no sound reason for further citation of authority or discussion of accepted rules of construction of insurance contracts.

The judgment is affirmed.

MAUGHMER, G, concurs.

PER CURIAM:

The foregoing opinion of SPERRY, C, is adopted as the opinion of the Court. HOWARD, P. J., and CROSS, J., concur.

MORGAN, J., not participating because not a member of the Court when the cause was submitted.


author: MICHAEL F. GODFREY, Special Judge.

text:
    Thomas E. MOORE, Plaintiff (Respondent), v. QUALITY DAIRY COMPANY, a Corporation and Elmer T. Freese, Defendants (Appellants).
    No. 32815.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1968.
    Motion for Rehearing or Transfer to Supreme Court Denied Feb. 20, 1968.
    Application to Transfer Denied April 8, 1968.

      Gentry, Bryant & Sheppard, Robert Nagel Jones, St. Louis, for defendants-appellants.
    Lashly, Neun & Watkins, Hiram W. Watkins, George W. Curran, St. Louis, for plaintif f-respondent.
   MICHAEL F. GODFREY, Special Judge.

After a $15,000.00 jury award rendered against them in a personal injury and property damage action, and unavailing post trial motions, defendants have appealed to this Court assigning as error certain specifications which hereinafter will be considered. The parties here will be designated as they were in the trial court. Plaintiff submitted his case to the jury on defendants’ (1) failure to keep a careful lookout or (2) failure to signal their intention to turn. From the facts adduced in evidence taken in the light required of us upon appeal, that is in light most favorable to plaintiff because of jury’s verdict (Ewen v. Spence, Mo.App., 405 S.W.2d 521), it appears that on August 14, 1964, between 8:00 A.M. and 8:45 A.M. the plaintiff was riding his Triumph motorcycle in a westwardly direction in the 800 block on Hudson Road in St. Louis County, Missouri. This two lane roadway is approximately 36 feet wide with shoulders about 2 feet wide on each side. The surface was dry; the weather cloudy. Plaintiff first saw defendants’ truck ahead of him proceeding west on Hudson Road when he was about 300 feet behind it. The truck was moving at a speed of 20 miles per hour and 2 feet south of the north edge of the road. At this point plaintiff was traveling 25 or 30 miles per hour and gaining on the truck. When plaintiff reached a point 40 or 50 feet.from the truck he decided to pass and pulled out to the center of the road where “you might say an imaginary line would be” to see if the roadway was clear of oncoming traffic. He sounded his horn and proceeded forward observing that the truck driver gave no signal of an intention to turn. While in the center of the passing lane and accelerating his speed, as the front wheel of his motorcycle was about even with or five feet behind the rear wheel of the truck the latter began to turn left into a private driveway. A collision resulted and .at the time of impact plaintiff was traveling 30 miles per hour and defendant 10 or 15 miles per hour. Defendant Freese, the truck driver, testified that he did not see or hear the motorcycle until he started to turn into the driveway and when it was two feet south of him. In response to question by plaintiff who w.as still lying on the ground at the time as to why he had not signaled his intention to turn left he replied: “ ‘Because I didn’t see or hear you.’ ” Defendant Freese by looking into his rear-view mirrors had a view to his rear of 150 feet and testified that he commenced looking in his rearview mirror when 50 yards back from the point of impact and continued to do so until he was 20 feet back from point where he began to turn. He testified that he may have given a signal of his intention to turn left although he couldn’t “swear to it.” Plaintiff sustained injuries with resultant attendant expenses. It is admitted that Freese was the agent and servant of Quality Dairy Company at the time and place.

Since Points I, VII, VIII, IX and XI of Defendants’ Points relied on in their brief were not incorporated in their Motion for New Trial below these assignments of error are not properly before this Court for review because of waiver. Robbins v. Robbins, Mo., 328 S.W.2d 552; Marlo Coil Corp. v. Grand Park Corp., Mo.App., 348 S.W.2d 610. These assignments deal principally with admission of evidence and conflicting testimony of witness; we have carefully considered and reviewed the contentions raised therein and find that they lack merit. Yonke v. Alber’s Estate, Mo.App., 351 S.W.2d 794.

In other assignments of error raised in Defendants’ Points Relied On, which points are contrary to Rule 83.05(e) of the Rules of Civil Procedure, V.A.M.R. (Conser v. Atchison, T. & S. F. Ry. Co., Mo., 266 S.W.2d 587), the totality of various contentions raised seems to be directed to the question as to whether plaintiff adduced sufficient facts to present a jury issue.

In determining this question the broad general principle is that the reviewing court must consider the evidence in the light most favorable to plaintiff and must accord him the benefit of all supporting inferences fairly and reasonably deducible therefrom and must disregard defendants’ evidence unless it aids plaintiff’s case. Martin v. Sherrell, Mo.App., 418 S.W.2d 209; Price v. Nicholson, Mo., 340 S.W.2d 1, 95 A.L.R.2d 599; Southwestern Bell Tel. Co. v. Chester A. Dean Const. Co., Mo., 370 S.W.2d 270. In approaching this contention a cursory factual review of the evidence shows that as plaintiff’s motorcycle came within passing range of defendants’ truck, and started to pass the truck on the left hand side after the horn had been sounded, the defendant Freese without prior warning or signal turned left intending to enter a private driveway and into plaintiff’s path of travel arid came into collision with plaintiff and his motorcycle. Defendant Freese admitted that he did not see or hear the plaintiff until at the time of the impact or shortly before although he could have seen 150 feet to his rear by use of the rearview mirror. With the facts of the case being in this posture, unquestionably a jury issue was presented, both on defendants’ negligence and plaintiff’s contributory negligence. In a comparably factual situation, Clark v. Quality Dairy Co., Mo., 400 S.W.2d 78, the trial court granted plaintiff a new trial after a verdict for defendant, which action of the court was upheld on appeal. Also see Dawson v. Scherff, Mo., 281 S.W.2d 825, a case of like import, on matter of submissibility.

Defendants, however, raise the question in their brief as to their duty and obligation under the law to keep a lookout to the rear, recognizing that such extends to a lookout ahead and laterally. That such a duty exists, according to the attendant facts and circumstances of the case appears clearly, and was so stated in Myers v. Searcy, Mo., 356 S.W.2d 59, at pages 62 and 63 as follows:

“ * * * ‘The driver contemplating a left turn must keep a vigilant lookout for approaching vehicles, and also for vehicles which may be following him.’ ”

To like tenor on this point is the case of Dean v. Jackson, Mo.App., 370 S.W.2d 716.

As to defendants’ duty to signal for a left turn, a dereliction of which may constitute negligence, see George v. Wheeler, Mo.App., 404 S.W.2d 426. The factual situation in that case bears close similarity to the facts here except the plaintiff there was the left turning vehicle and collided with defendant’s car passing to her left. The court at pages 431 and 432 said:

“ * * * It is mandatory too — not just in some, but in all instances — to signal for a left turn. Failure to do so amounts to negligence. * * * ”

The court points out in the Wheeler case that while there are no statutory provisions directly controlling left turning vehicles and their relationship with overtaking vehicles, yet from a scrutiny of the provisions of Chapter 304, Traffic Regulations, V.A.M.S. dealing with left turning vehicles, a “left-turning automobile driver might be said to have only secondary rights.” If the duty exists, as it does on the part of left turning vehicles to yield the right of way at an intersection or private road to approaching traffic as provided in Section 304.021, Subsections 3 and 6, a fortiori, does such a duty rest on one intending to turn left into a private driveway while being overtaken by passing vehicle. Section 304.016, supra. The defendants owed plaintiff the duty both as to maintaining a lookout to their rear and as to their intention to turn left in front of plaintiff in order to comport with mandatory requirements resting on all drivers in this state to exercise the highest degree of care in the operation of their vehicles. See the recent case of Lands v. Boyster, Mo., 417 S.W.2d 942, where the court at page 945 said: “ ‘ “The driver contemplating a left turn must keep a vigilant lookout * * * for vehicles which may be following him”’; Reed v. Shelly, Mo.App., 378 S.W.2d 291, 296 [6], ‘ * * * a driver who intends to turn left must make a proper observation to the rear to ascertain whether another vehicle is approaching from the rear in such close proximity that a left turn cannot be made with reasonable safety,’ and ‘then, he must give an appropriate signal of his intention to change direction.’ ”

Defendants next seem to contend that the testimony of witness Mueller, called in plaintiff’s case, binds plaintiff and that therefore the fact was irrevocably established that defendants’ truck struck plaintiff’s right thigh and not the motorcycle of plaintiff. It is difficult to perceive what difference this would make in any event, however suffice it to say that plaintiff, having testified that the truck struck him while on the motorcycle any variance between his testimony and that of his witness must be resolved in his favor. Myers v. Karchmer Co., Mo., 313 S.W.2d 697; Ennis v. Korb, Mo., 347 S.W.2d 671; Dodwell v. Missouri Pac. R. Co., Mo., 384 S.W.2d 643, 11 A.L.R.3d 1156.

Defendants also seem to contend that since the evidence shows that the motorcycle struck the truck, and not vice versa, the plaintiff’s case fails. This is an untenable position for no other reason than the fact that the case was submitted to the jury on defendants’ failure to keep a lookout or failure to signal their intention to turn and not one of failure to stop. The issue as to who hit whom in such a situation has no probative bearing on the merits of this case. Lincoln v. Railway Exp. Agency, Inc., Mo., 359 S.W.2d 759; Ferdente v. St. Louis Public Service Co., Mo., 247 S.W.2d 773.

Defendants complain that the court erred in refusing to give to the jury their tendered Instruction “B.” This instruction reads as follows:

“ ‘Your verdict must be for defendants if you believe:
First, both plaintiff and defendants were guilty of negligence; and,
Second, their negligence was mutual, joint and concurrent, and,
Third, plaintiff was damaged directly by such mutual, joint and concurrent negligence; and,
Fourth, the negligence of neither without the concurrent negligence of the other would have caused the damage.’ ”

The court did submit at defendants’ request an instruction stating that the jury “ Verdict must be for defendants, whether or not defendants were negligent’ ”, thereafter setting out the issue of plaintiff’s contributory negligence in “ * * * failing to give defendants an adequate and timely signal of his intention to pass the truck or plaintiff following too closely.”

It at once is apparent that the refused instruction is not incorporated in the Missouri Approved Jury Instructions (MAI).

Before passing to a consideration of the merits of this instruction it should be noted that Rule 70.01(b) of the Rules of Civil Procedure provide that whenever Missouri Approved Instructions contains an instruction applicable in a particular case, when requested by counsel or which the court decides to submit, such instruction shall be given to the exclusion of any other on the same subject. In Martin v. Yeoham, Mo.App., 419 S.W.2d 937, 947, this was observed: “It is the basic theory underlying the use of MAI that when an approved instruction is applicable it must be given to the exclusion of any other instruction. Unless this tenet is observed, the MAI procedure cannot be successful. * * * ”

An analysis of this instruction reveals that it permitted the jury to find non-liability if (1) plaintiff was negligent, (2) plaintiff’s negligence was concurrent with defendants, (3) plaintiff was damaged directly by such negligence, (4) plaintiff’s negligence without concurrent negligence of defendant would not have caused the damage. Nowhere in this instruction is the jury told, nor therein referred to other instructions for determination, as to what acts or omissions on plaintiff’s part might be considered “negligence.” This instruction is erroneous for failure to set out a format for jury guidance and consideration, leaving whatever the jury may wish to speculate on as constituting negligence and giving it a vitiating roving commission. In Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30, l. c. 32 the court said:

“It is the settled rule that an instruction purporting to cover the whole case and authorize a verdict should require the finding of all the facts necessary to sustain the verdict. Negligence being usually a question for the jury, an instruction should set out the facts, supported by the evidence, relied on to show the acts of negligence so the jury may determine whether or not the commission of such acts was negligence. * * * Accordingly, plaintiff’s instruction is erroneous for the reason it fails to hypothesize the facts.”

While the MAI have altered the former requirement of detailed hypothesization of facts yet the necessity remains for submitting the ultimate fact issues for jury consideration. There has not been an emasculation of the requirement for submission of ultimate fact issues such as this refused instruction would espouse. In Pollard v. General Elevator Engineering Company, Mo., 416 S.W.2d 90, the defendant, in its contributory negligence instruction, after specifying specific acts of negligence, provided in paragraph Second “plaintiff’s conduct was negligent.” The trial court granted a new trial on the grounds that the proscribed roving commission was thus given the jury by such paragraph, which action was affirmed on appeal.

In Harris v. Quality Dairy Company, Mo.App., 423 S.W.2d 8, this court approved the refusal of an instruction somewhat similar to, but less objectionable than, defendants’ Instruction “B”, pointing out “ * * * that the better practice is to give only one instruction fully and clearly covering the subject of contributory negligence than to give a number of instructions with useless repetí-tions using the term concurrent, etc., * * The trial court was correct in refusing the proffered instruction, as defendants’ contributory negligence instruction, above noted, adequately insured them of a fair trial. Refer also to Hawkeye-Security Ins. Co. v. Thomas Grain Fumigant Co., Mo.App., 407 S.W.2d 622, 630.

Next defendants contend that the trial court erred in refusing to give to the jury Instruction “C”, which required a verdict for defendants if plaintiff “ * * * failed to have his motorcycle under such control as would have enabled him to stop or swerve in time to have avoided his coming into contact with the (defendants’) truck * * Assuming, without deciding, that there was an evidentiary basis for submission of this instruction to the jury, the court did not err in refusing to give it. In addition to what has been said above pertaining to instructions generally, in Miles v. Gaddy, Mo., 357 S.W.2d 897, l. c. 900, the court condemned the giving of instructions containing “control” submission in the following language: “For at least thirty years the decisions of this court, both en banc and in division, have criticized and condemned instructions for submitting the failure to control a motor vehicle as a ground of specific negligence. * * * ” On page 901 thereof the court goes on to say: “In Thompson v. Gipson, Mo., 277 S.W.2d 527, 531 [6], the giving of a ‘control’ instruction in conjunction with one on specific negligence in the same case was held to be error * *

While in the instant case the refused instruction did mention certain acts of specific negligence springing from the lack of control, the vice inherent generally in such instructions, as noted, pervaded this instruction rendering it erroneous. The MAI having failed to provide for a “control” submission, this Geryonian verbiage should disappear from jury instructions and finally be laid to rest. What was said in Nugent v. Hamilton & Son, Inc., Mo., 417 S.W.2d 939, with reference to giving of multiple instructions violating the “letter and spirit” of MAI equally applies here.

Defendants next assignment of error concerns the admission of certain testimony read into evidence by plaintiff from defendant Freese’s deposition. After reading portions of the Freese deposition leading up to the subject of rearview mirrors on the truck the following occurred:

“ ‘Question: Would you tell me where these are located?’
‘Well, let’s see, one is on the driver’s side and one is on the other side. There is two, you know, one on each side.’
‘About how big is this mirror ? Would you just generally describe it for me? Answer: Well, they are about, oh, I’d say they were about that big around.’
‘Question: You are indicating they are round? Answer: They were round. Now they got long wide ones on there.’ ”

The defendants moved to strike the answer and asked for a mistrial. The court struck the latter part of the answer and instructed the jury to disregard it, but-overruled the motion for mistrial. Defendants contend that this testimony showed a change in conditions of the rearview mirrors of the truck after the accident and therefore was prohibitory and inadmissible, citing Atcheson v. Braniff Intern. Airways, Mo., 327 S.W.2d 112, and Brule v. Mayflower Apartments Co., Mo.App., 113 S.W.2d 1058. Neither case is in point for the reason that in those cases the change went to the heart or main issue in the case whereas here, at best, the said change was secondary or ancillary to the main charges of negligence. In the former a chain was erected across a passageway to prevent passage and in the latter a post which fell and injured plaintiff was removed a week later. The volunteered answer by Freese “now they got long wide ones on there” to a proper question, was not prejudicial to the defendants so as to require the granting of a mistrial. The objectionable part of this answer, when considered ixi conjunction with Freese’s testimony with regard to lookout and fact that he never saw plaintiff until shortly before the impact demonstrate its' harmless effect.

Plaintiff in his brief states that in the absence of an objection to the question and answer at the time the deposition was taken, a waiver thereby was effected, citing Rule 57.48(c) (2) of the Rules of Civil Procedure, which is patterned after Rule 32 of the Federal Rules of Civil Procedure. The federal cases cited by plaintiff, one being Cordle v. Allied Chemical Corp. (6th Circuit), 309 F.2d 821, construing the last mentioned rule do appear to bear out plaintiff’s contention, however it is unnecessary to decide whether the construction to be placed upon Rule 57.48 of our Rules of Civil Procedure would coincide with that of the Federal Rule 32. Suffice it to say that the propriety of withholding the defendants’ requested relief was peculiarly within the discretion of the trial Judge, the exercise of which will not be disturbed in the absence of clear abuse and patent adverse affects on the merits of the case. Rawley v. Eilermann Transfer Co., Mo.App., 390 S.W.2d 937, 942; Buff v. Loch, Mo.App., 396 S.W.2d 263, 267; Section 512.160(2), RSMo 1959, V.A.M.S., and Civil Rule 83.13(b), V.A.M.S.

Next, defendants complain that the testimony of plaintiff’s doctors went beyond the bounds of legitimate description of plaintiff’s injury and resulted in prejudicial error.

Before considering the merits of this assignment, we should note that plaintiff sustained a fracture of shaft of right tibia and fracture of right fibula in his leg. Defendants do not claim in this court that the verdict is excessive. It would unduly lengthen this opinion to go into minute detail concerning this phase of the evidence, however, we have carefully reviewed the medical testimony in this regard and do not find it vulnerable to the attacks made upon it. Particularly is this true where the trial court has ruled upon the effect of such testimony and found no error. Taylor v. Kansas City Southern Ry. Co., 364 Mo. 693, 266 S.W.2d 732, 736; Happy v. Walz, Mo.App., 244 S.W.2d 380, 383.

Defendants next contend that the court should have stricken the testimony of one of plaintiff’s medical witnesses because his prognosis of plaintiff’s injuries was based on “medical guesses.” Actually the doctor, upon prompting by defendants’ attorney, stated that medical science, because it is a “lack” science, has to deal in uncertainties and percentages. We do not believe that the connotation in which the word “guess” was used brings it within the proscribed ambit of lack of probity and valueless evidence, not helpful to the jury, nor on which that body might rely. Denney v. Spot Martin, Inc., Mo.App., 328 S.W.2d 399; Stephens v. Guffey, Mo., 409 S.W.2d 62; Lands v. Boyster, Mo., 417 S.W.2d 942; Immekus v. Quigg, Mo.App., 406 S.W.2d 298. The trial court ruled the point correctly.

Next, defendants contend that it was error for the court to allow plaintiff’s counsel to argue the limited size of the rear-view mirror on the truck as this factor pertained to or bore on the duty of defendants to keep a lookout to the rear. We are of the opinion that this was proper subject for argument, recognizing that a vast discretion resides in the trial court in matters of this nature, and that counsel is allowed wide latitude in argument and in drawing inferences, even though the inferences drawn are illogical or erroneous. Triplett v. St. Louis Public Service Co., Mo.App., 372 S.W.2d 515; Eickmann v. St. Louis Public Service Co., Mo., 323 S.W.2d 802, 810; Griffith v. Gardner, 358 Mo. 859, 217 S.W.2d 519; Goins v. O’Keefe, Mo.App., 412 S.W.2d 513.

Finally, defendants contend that conceding for the moment that the plaintiff made a submissible case against Quality Dairy Company, none however, was made against Defendant Freese as he could not be held liable for the furnishing of a truck with inadequate rearview mirrors. This contention is fallacious and overlooks the fact that it was Freese who was driving the dairy truck and it was Freese who failed to keep the requisite lookout to his rear and who failed to signal his intention to turn left into a private driveway.

For the above and foregoing reasons the judgment of the Circuit Court is affirmed.

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

RUDDY, J., not participating.


author: L. F. COTTEY, Special Judge.

text:
    Velma Alene PELTS, Plaintiff-Appellant, v. Lee PELTS, Jr., Defendant-Respondent.
    No. 8647.
    Springfield Court of Appeals. Missouri.
    Feb. 16, 1968.

      O’Herin & Newberry, Malden, for plaintiff-appellant.
    McHaney & Welman, Kennett, for defendant-respondent.
   L. F. COTTEY, Special Judge.

By the original decree of divorce entered in this case in 1965, the wife was awarded the general custody of the husband’s natural son whom she had adopted during the marriage. The husband, having no home at the time suitable for the rearing of the boy, was granted liberal weekend and holiday custodial privileges. In making that provision, the court “necessarily adjudicated the fact that the father was not only a fit person to share in the custody of his child, but also that the child’s own welfare would be served by permitting the father to have contacts with it.” Olson v. Olson, Mo.App., 184 S.W.2d 768, 773. Thereafter the wife moved from the State and took up her residence at such a distance from the parties’ former home as to render it impracticable for the husband to avail himself of his custodial rights. “[I]t is against the policy of the law to permit a minor child of divorced parents to be removed to another jurisdiction” when “the practical consequence of the child’s removal will be to deny it reasonable opportunity for contacts with its father;” indeed, “the actual or threatened removal of the child from the jurisdiction of the court” under those circumstances “is good ground for a motion to modify” the award originally made. (Emphasis ours) Green v. Perr, Mo.App., 238 S.W.2d 924, 927-928. Meanwhile the husband remarried, and he and his present wife, a woman of estimable character, now maintain a suitable home in which they are able to provide for the boy’s upbringing. With that object in mind the husband, seconded by his present spouse, filed a motion in the case to modify the original decree so that the general custody of his son might be awarded to him. The motion alleged six material changes in the circumstances, conditions and behavior of the parties to warrant the relief requested, all pointing to the conclusion that the husband’s home would provide an environment more responsive to the boy’s needs and more conducive to his welfare than the one maintained by the wife. The trial court sustained the motion on proof of its material allegations, and the wife appeals.

No useful purpose can be served by making a permanent record of the sometimes invidious and always embarrassing details of the controversy. The determination of all factual issues in cases of this kind “has been vested by the law in the discretion of the trial court,” Ramos v. Ramos, Mo.App., 232 S.W.2d 188, 198-199, and the finding made by the trial court “should be deferred to, unless it is apparently in conflict with a clear preponderance of the evidence and discloses a manifest abuse of discretion.” Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364, 367. Suffice it to say that we have reviewed the evidence in the light of that rule and find that it amply supports the charges made and the conclusion reached in the trial court.

No point of law is presented that has not previously been settled in this State by an endlessly repetitive line of decisions on all aspects of the subject. Even these are not preserved for review by such abstract assignments as, for instance, that “a young child should be in the care of his mother, all things being equal, and the fact that the mother is an adoptive parent is of no significance,” or that “the recent reformation of (the husband’s) personal conduct and actions makes the trial court’s order an unwarranted experiment.” The issues were purely factual, and the trial court resolved them in line with the “inflexible and unyielding principle * * * that the welfare of the child is paramount and supreme.” J- G- W- v. JL- S-, Mo.App., 414 S.W.2d 352, 360; Fortune v. Sinco, Mo.App., 417 S.W.2d 515, 520.

Affirmed.

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

      . Where the welfare of a growing boy is at stake, the rule becomes even more pointedly applicable when considered in the light of the assertion made in Luethans v. Luethans, Mo.App., 243 S.W.2d 801, and so regularly confirmed by common experience and observation, 1. c. 804, “It is so evident that a son should have the companionship, affection, and guidance of his father that it scarcely needs restating.”


text:
    Lillian Beatrice LEE, Plaintiff-Appellant, v. NEW AGE FEDERAL SAVINGS & LOAN ASSOCIATION, a corporation, Defendant-Respondent.
    No. 32759.
    St. Louis Court of Appeals. Missouri.
    Jan. 16, 1968.
    Motion for Rehearing or for Transfer to Supreme Court Denied Feb. 20, 1968.

      Eugene H. Buder, St. Louis, for plaintiff-appellant.
    Clarence E. English, St. Louis, for defendant-respondent.
   MICHAEL F. GODFREY, Special Judge.

Appellant instituted this equitable action against respondent and one Marie Whelan alleging wrongful foreclosure of a deed of trust held on appellant’s real property located in the City of St. Louis, Missouri. Appellant seeks to set aside the foreclosure sale and the deed executed pursuant thereto, reinstatement of note and deed of trust with respondent, and by amended petition additionally sought damages. As will appear later Marie Whelan, the purchaser at said sale, was dismissed from the lawsuit.

Plaintiff executed a promissory note and deed of trust to defendant on the above property by the terms of which plaintiff promised to make monthly payments to defendant until the note was paid. Plaintiff made these payments regularly through October, 1961, when difficulty arose regarding a certain payment. Various letters were interchanged between the parties wherein these difficulties were attempted to be resolved; however, on November 28, 1961, respondent began foreclosure proceedings by running statutory newspaper advertisement. Communication between the parties continued thereafter during which time appellant was directed to contact respondent’s executive vice-president to determine the amount of the advertising costs accrued. She was never able to reach him, though she states she attempted to do so repeatedly. She also states that she stood ready and financially able to pay off the delinquent amount, nonetheless on December 26, 1961, the foreclosure sale took place and Marie Whelan purchased the said property. Thereafter Marie Whelan and her mortgagee commenced an action of unlawful detainer against appellant in the Magistrate Court of the City of St. Louis seeking to evict her from the property in question. A stipulation and settlement was effected on May 21, 1962, by the terms of which the plaintiffs in the unlawful detainer action dismissed their lawsuit against appellant; appellant dismissed Marie Whelan from the present lawsuit; Marie Whelan by deed conveyed to appellant the property in question for which plaintiff paid Marie Whelan and her mortgagee a certain sum of money; and Harry Shank and Shank Investment Company sold to appellant’s attorney the deed of trust on the property.

On May 23, 1966, this case was tried on the original petition filed, however, because of the above events which had occurred aft-ter filing the original petition, an amended petition was filed on June 2, 1966, which purported to conform the pleading to the evidence received on the trial on May 23, 1966. In addition to setting forth many allegations contained in the original petition this amended petition averred the above settlement agreement and further prayed for damages as well as seeking the same equitable relief.

The trial court found in favor of defendant and dismissed appellant’s Bill of Complaint at her costs on the ground that she has an adequate remedy at law.

Since appellant in this court has abandoned all claim to equitable relief, the determinative issue presented on this appeal is whether the trial court erred in not awarding damages to appellant for the alleged wrongful foreclosure and in rendering judgment for respondent.

The appellant urges that since the existing facts at the time that the original petition was filed invoked equitable principles and the petition filed sought equitable relief, the court thereby acquired equitable jurisdiction for all purposes and should have afforded her complete relief by way of awarding money damages. In her brief appellant has cited several cases to this purport which will be discussed later.

In reaching a decision herein it is important to understand the sequence of events which took place and to consider the evidence produced on the trial. After appellant filed her petition seeking equitable relief and before the trial hearing she entered into a settlement agreement with Marie Whelan, one of the parties to the lawsuit, the result of which was to invest appellant with the legal title to said property. As a further provision of this settlement agreement, appellant’s attorney purchased the deed of trust on the property, leaving appellant responsible to him for making payments under the mortgage. Thus, when the case came on for trial, the appellant was then the titleowner of said property which was subject to a mortgage held by a holder acceptable to and satisfactory with her. These facts appear in her testimony in the transcript on Page 37 in the language following :

“Q You live in this property at the present time?
“A Yes.
“Q You are the record owner of the property, is that correct?
“A Yes, sir.”

And on Page 42 thereof:

“Q Would you rather have someone else have the mortgage rather than the person who has got it now and you pay them ?
“A I don’t know; it’s all right with me. If he thinks it is best—
“Q (Interrupting) I am trying to get your thoughts, now, not your lawyer’s thoughts about it.
“A I much rather have the lawyer have it than the New Federal Age have it.
“THE COURT: You would rather have the present mortgage holder than the New Age?
“THE WITNESS: Yes, I would.”

And on Page 44 thereof:

“Q So that prior to that time, and at this time, didn’t you agree that we should try to put this mortgage back with the New Age?
“A Yes, but he asked me would I rather —to tell you the truth, I would much rather you did.”

It thus appears that by the time the case was tried appellant no longer was an aggrieved party so far as the equitable portion of her lawsuit was concerned, and that by trial time her only complaint was that because of this whole transaction, i. e., alleged wrongful foreclosure, she had to expend money in order to achieve her present status. Her evidence not only negated her desire for equitable relief but evinced a satisfaction with her present position leaving a request for legal relief only.

In order for legal relief to be afforded in such a situation, a predicate of entitlement to equitable relief must be not only pleaded but established. The general rule is stated in 30 C.J.S. Equity § 67, to the effect that before disposition of all matter in controversy can be applied, some ground of equitable jurisdiction must first be asserted and established. This same general principle finds expression in §§ 72 and 73 of 30 C.J.S. Equity and was applied in Krummenacher et al. v. Western Auto Supply Company, Mo.App., 206 S.W.2d 991, l.c. 993, where the court said:

“It is the general rule that where equity has once become possessed of a cause it will retain it for the purpose of administering full and complete relief; however, such rule does not and cannot apply where the facts relied upon to sustain the jurisdiction of equity have failed of establishment. (citing cases) In the recent case of Shay v. New York Life Ins. Co., 354 Mo. 920, 192 S.W.2d 421, our Supreme Court held that where plaintiff fails to prove facts to sustain equity jurisdiction the equity court may not retain the cause and award full and complete relief or determine rights at law. * * * ”

This proposition of law has been affirmed in many following cases, notably Sebree v. Rosen, Mo., 349 S.W.2d 865; Reutner v. Vouga, Mo.App., 367 S.W.2d 34; Sapp v. N. R. Garrett City Quarry, Mo.App., 284 S.W.2d 49.

On the evidence presented in the trial court, appellant not only failed to show wherein she was entitled to equitable relief, but categorically disclaimed any desire or prayer for equitable relief. She seeks however, to avoid the impact of foregoing principle by urging that at the time her petition was filed the facts then existing and the evidence concerning them adduced on the trial entitled her to the relief sought. Her position seems to be that since the petition alleged grounds sufficient for equitable relief, and the evidence produced on the trial showed the said foreclosure to be wrongful, she therefore had met all the requirements necessary to evoke the complete jurisdiction of the equity court both in pleading and in proof. The difficulty with this position is that on the one hand appellant has presented issues cognizable in equity while on the other presenting facts completely resolving them, leaving nothing for the equitable jurisdiction of the court to operate on save the legal question of damages. She, in effect, would advance certain portions of her testimony regarding the alleged wrongful foreclosure to obtain the relief sought while at the same time disavowing other portions thereof exhibiting resolution of all equitable claims in the case. This she may not do. See Vaccaro v. Moss, Mo.App., 410 S.W.2d 329; Borrini v. Pevely Dairy Co., Mo.App., 183 S.W.2d 839. In order for the court to award purely legal remedies such must be ancillary to the granting of some substantial equitable relief. 30 C.J.S. Equity § 73. In Yellow Mfg. Acceptance Corp. v. American Taxicabs, 344 Mo. 1200, 130 S.W.2d 601, at page 610, then Commissioner Hyde said:

“The court also had discretion to dismiss plaintiff’s claim for a judgment for the deficiency on the chattel mortgage debt, because this was a claim at law put into plaintiff’s petition in equity by amendment during trial (and not even made a separate count of that petition) and because the court found that no grounds existed for the exercise of its equitable jurisdiction. * * * ”

To the same tenor is the case of Modern Woodmen of America v. Cummins, 216 Mo.App. 404, 268 S.W. 383, where at page 385 this court speaking through Commissioner Sutton said:

“ * * * The court adjudged that the appellant had no lien on the fund and no interest in it, and adjudged the respondent entitled to the entire fund and ordered it paid over to her. The court thus exhausted its power and jurisdiction over the cause before it as a court of equity. The chancellor, having determined that the appellant was not entitled to any equitable relief, could not thereupon proceed to adjudicate a purely legal issue and give a personal judgment in his favor. * * ⅜ »

In this context we perceive no valid distinction between a case wherein plaintiff has failed to show herself entitled to relief and one where plaintiff has shown any relief to which she might have been entitled has been resolved prior to trial. In either event there remains nothing upon which the equitable jurisdiction of the court may operate. By the time of trial and under the evidence produced on the trial appellant presented no ground for equitable relief, and whatever legal remedy, if any, she might have been entitled to was not sought until some time elapsed after the hearing on the merits of the case by amended petition.

To sustain her position appellant relies on the case of Supreme Lodge, K. P. v. Dalzell, 205 Mo.App. 207, 223 S.W. 786, wherein it appeared that plaintiff, a fraternal order, brought suit in equity against Dalzell, a secretary of plaintiff order, and Grand Avenue Bank, claiming that Dalzell collected premiums which belonged to plaintiff and deposited them in his individual account in defendant bank. Plaintiff sought to enjoin the defendants in disposing of the premium trust assets and sought a personal judgment against Dalzell, and asked the court to restrain Dalzell, who though notified of his discharge was threatening and attempting to collect further premiums from persons insured by plaintiff. During pendency of the lawsuit a stipulation was entered into where it was provided that the sum of money held by defendant bank should be paid to the Clerk of the Court to be held by him to abide the final determination of the lawsuit; that Dalzell should execute a bond as security for payment to plaintiff of a further sum should it be determined that plaintiff was entitled thereto and further that the money held by the Clerk and that secured by the bond should be made to apply to any judgment plaintiff might obtain against Dalzell. Thereafter defendant bank was dismissed from the lawsuit. Dalzell filed a counterclaim and the trial resulted in a judgment for plaintiff and denial of relief to Dalzell on his counterclaim. Dalzell’s appeal assigned as error failure of the court to provide him a jury trial since, according to his position, only legal issues remained to be tried. The court there held that the contention was without merit, if for no other reason than that equity having acquired jurisdiction of a cause will retain it to do full and complete justice. The distinction between that case and the instant case is apparent. In Dalzell, though the remedy was secured by deposit of assets in the Clerk’s hands and by a bond to await the outcome of the cause by virtue of the stipulation, the substantive features of the lawsuit remained intact and litigable. The case retained its equitable complexion and the stipulation affected nothing save the remedy or the enforceability of the court’s judgment. The equitable relationship of the parties in the case was not affected thereby and any relief to which the parties were entitled in equity was not depreciated by the stipulation. In the instant case, the equitable features of the lawsuit had totally ceased to exist both in substance and in fact, leaving only the legal jurisdiction of the court.

The case of Waugh v. Williams, 342 Mo. 903, 119 S.W.2d 223, cited by appellant in her brief involved an action to compel the payment of the balance of the purchase price of a hotel and to enforce a lien against the property for the unpaid portion of the purchase price. The trial court granted relief sought but denied the enforcement of the lien. On appeal the appellant’s main assignments were that plaintiff’s petition did not state a cause of action in that there was no allegation of tender of deed to him; that plaintiff was estopped to bring the action; that plaintiff was not entitled to specific performance of the contract because of inability to perform his part and lastly that the court altered the contract as to performance which was more onerous to appellant than what was originally called for. Consideration of that case leads us to conclude that the court there exercised its equitable jurisdiction throughout the disposition of the case, withholding only one facet of its equitable jurisdiction, i. e., enforcement of the lien. This case is distinguishable from the case at hand.

Appellant asks us to find the foreclosure herein wrongful and to award her damages because of its consequences. Laying aside what we have said above, there are two cogent reasons why we cannot do this. First, since the trial court directed a verdict at the close of appellant’s case no evidence was adduced on behalf of respondent pertaining to or bearing on any defense it might have to appellant’s claim, and since it does not appear that appellant is entitled to the relief sought as a matter of law but rather, at best, a fact question would be presented, we could not grant the relief sought without a complete presentation of facts and the development of these issues upon a hearing. Secondly, this question being a legal issue the parties should have the opportunity to present their case to a jury as provided by law. Sapp v. Garrett, Mo.App., 284 S.W.2d 49, 52.

It follows that the action of the trial court in denying appellant relief and in entering judgment in favor of respondent is affirmed.

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

WOLFE, J., not participating.