text:
    STATE of Missouri, Respondent, v. Wendell WILLIAMS, Appellant.
    No. 52132.
    Supreme Court of Missouri, Division No. 2.
    July 10, 1967.
    Norman H. Anderson, Atty. Gen., Donald L. Randolph, Asst. Atty. Gen., Jefferson City, for respondent.
    J. Whitfield Moody, J. Arnot Hill, Kansas City, for appellant.
   BARRETT, Commissioner.

Charged with burglary and stealing, a jury found the appellant, Wendell Williams, guilty of burglary only and fixed his punishment at two years’ imprisonment.

At the close of the work day on March 11, 1965, the Southern Awning & Iron Works, 2320 E. 12th Street in Kansas City, was securely locked, all doors and windows closed. On the following morning, March 12, 1965, when the owner, Talbot, returned to the plant a section of wire glass near the door handle had been broken, there was a hole in the skylight and, finally, it was discovered that the outside guard across a fan in the paint room had been removed, a fan blade had been broken off making a “V hole” through which entry had been effectuated. In the office files had been emptied onto the floor, pictures disfigured, an acetylene torch moved in, the safe turned over and “the front door of this safe was cut all the way around the seams.” (In a vocational training school Williams, age 22, had had two courses in welding.) The office had been. ransacked, a radio was missing, also $30 in change, $20 worth of stamps, flashlights, tools and twenty-one blank checks, all of the approximate value of $200.00. And most important here, a detective found a knife in the office and Williams’ thumbprint was removed,.-from, the blade. Williams’ explanation for this was that he was in the business of sharpening knives and some time or other may have repaired and sharpened that particular knife. Testifying in his own behalf, however, he denied that he had anything to do with the burglary and denied that he had admitted participation to anyone.

In the trial of his case Williams was represented by paid counsel of his own choosing and in this court is represented by counsel for the Legal Aid and Defender Society of Greater Kansas City. His counsel make four points, two relating to the instruction on voluntary confession, one relating to the “alleged confession” itself and the other that “the officer did not make it clear to him that he had a right to counsel during the interrogation” and did not warn that any statement he might make could be used against him and thereafter in permitting the officer to testify to an oral admission thereby infringing his rights guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. (Emphasis supplied.) In support of his basic theory with respect to his right to counsel the appellant does not rely upon the recent in-custody interrogation decisions, instead he relies upon cases in which defendants were denied counsel in the actual trial of their cases or in which there was an improper appointment of counsel: Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. As stated, the appellant here, so the record recites, “appeared in person and by his counsel, Mr. Richard Kirwan” and Mr. Kirwan did in fact try the cause down to and including the sentencing and perfection of the appeal.

The question sought to be raised here, particularly with respect to any confession the appellant may have made arose in these circumstances: The state’s second witness, after the owner of the burglarized premises, was Officer Halteman of “the crimes against property unit.” After describing the premises the officer said, “I interviewed him in regard to burglaries which had occurred in the city.” Defendant’s counsel, evidently anticipating, objected to that particular statement and the trial court, out of the hearing of the jury, permitted counsel to examine the officer with respect to the circumstances in which he talked to and obtained an admission from Williams. It turned out that Williams was already in jail, having been arrested on April 12th for another burglary, the Patti Construction Company burglary, when on April 16 Halteman went to the jail and talked to him. Halteman said that he advised the appellant that he had a right “to talk to his folks or counsel” and he did not know at that time that he already had counsel. In the end, however, the officer said, “This burglary was already solved before I talked to him.” In explanation he said, “Sometime in March the suspect, one of the suspects in this crime was arrested and later convicted, and the crime was automatically cleared by his arrest. We had a good case.” In any event after counsel’s original objection and preliminary examination of Halteman, there were no other witnesses as Halteman was alone when he interviewed Williams and neither Williams nor anyone else was called upon this motion which the court evidently treated as a motion to suppress, the court made this entry: “One more thing, just for the record, I am going to make a finding as a result of this hearing outside the presence of the jury that the alleged statements made by the defendant were made voluntarily beyond a reasonable doubt after being advised of his right to counsel” and he concluded that the issue would ultimately be submitted to the jury under appropriate instructions. Thus the trial court by a finding of fact “with unmistakable clarity” has determined that any statement Williams may have made “was freely and voluntarily given” (Sims v. State of Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593) and therefore this appeal is not concerned with the problems of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. The officer was then permitted to testify that “He stated he had participated in this burglary.”

The other objection to this testimony concerning the appellant’s admission is that “it was unsupported by evidence that no threats of harm or promises of wordly advantages were made to defendant.” As indicated in considering the other assignment there was no such objection or claim — the only claim was that there was no warning of his right to silence and to counsel and therefore the admission was not voluntary. But even so, when Halteman conducted his interview he did not have Williams removed from his place of confinement but talked to him on the 11th floor where he was confined after advising him of his rights and the only fair conclusion from the circumstances is that there were no threats, promises or violence and no opportunity for violence and in view of the court’s specific finding the supported inference is that there was no physical or mental coercion and “in the totality of the circumstances” the incriminating oral statement was admissible in evidence. State v. Beasley, Mo., 404 S.W.2d 689.

It is assigned that Instruction 9, submitting the voluntariness of any statements •Williams may have made, was prejudicially erroneous in two respects, it did not require a finding that said admissions were true, and it failed to require a finding that the statements had been made without threats or promises. To establish his points that these are always and in every event essential elements of any and all instructions on voluntary statements the appellant cites, for example, State v. Williams, Mo., 369 S. W.2d 408, a rape-murder case. There, in the first place, the defendant did not testify and, in the second place “the issue of mental duress and coercion had to be decided in order to determine whether the confessions were or were not voluntarily given.” Mental or psychological coercion was not mentioned, the instruction only submitted without “hope of leniency * * * and without anyone making any threat or doing any violence” and thus was prejudicially erroneous because “[i]n omitting to present the issue of mental duress and coercion for determination by the jury, the instruction was clearly erroneous and should not have been given.” In further substantiation of his arguments the appellant, without reference to the particular language involved or the form of the instruction or the precise nature of the issues involved, cites cases involving instructions entirely dissimilar to the one involved here, for example again, an instruction “with reference to the paper offered in evidence” the jury was erroneously told that “it is a rule of law founded in reason that a confession of a defendant, when voluntarily made, is evidence against him, because common experience proves that a man will not without motive for so doing, confess facts to his disadvantage, unless they are true.” Here, the truth of the confession being denied by the appellant, “it would surely be prejudicial to tell the jury it is 'a rule of law’ that his confession was evidence against him without requiring the jury to find it was true; especially when this instruction went on to say it was evidence against him ‘because common experience proves’ he would not confess such facts ‘unless they are true.’ ” State v. Cross, Mo., 357 S.W.2d 125, 127. Other forms of instructions submitting voluntariness of confessions are State v. Phillips, Mo., 299 S.W.2d 431, State v. Stidham, Mo., 305 S.W.2d 7, 17, State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, and State v. Washington, Mo., 399 S.W.2d 109,' which could only be applicable in cases of “ ‘the police brutality began’ and did not stop until he admitted the commission of the rape and the robbery and that ‘it was very rough from the very first fist blow the police struck me’; that he signed statements admitting the crimes because there was no other way to stop the brutality to which he was being subjected.” There was neither proof nor claim of mental duress in that case, the only theory of coercion was force. In short, those cases do not, as claimed here, make threats, promises or truth essential elements in every case concerned with the voluntariness of admissions or confessions.

As indicated, Instruction 9 is wholly unlike the instructions in any of the cases relied on by the parties, its origin has not been uncovered but an examination of the files reveals that it is identical with Instruction 7 in State v. McCollum, Mo., 377 S.W.2d 379, 388. This is the instruction in both cases:

“The Court instructs the jury that if you believe and find from the evidence that the defendant made any voluntary statement or statements in relation to the offense charged, after such offense is alleged to have been committed, you must consider such statement or statements, if any, all together and in the light of the circumstances under which you may believe they were made, (if you believe they were made).
“If you believe the statement or statements of the defendant, proved by the State, were not voluntary, then you should disregard the statement or statements entirely.”

There is no specific reference in the-instruction to either mental or physical coercion or to the truth of any admission the appellant may have made and yet any supported theory, either affirmatively or negatively, is open for argument. In the McCollum case the appellant offered and was complaining of the refusal of his instruction on fear and force but the court said, as is the fact here, “[t]here were no facts in evidence supporting such a submission.” And there as here “[u]pon this record” the instruction was not manifestly prejudicial for the reasons now advanced.

Since the briefed assignments of error are not well taken the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: HOLMAN, Chief Justice.

license: Public Domain

text:
    STATE ex rel. George SCHWAB, Relator, v. James T. RILEY, Special Judge, Circuit Court of Moniteau County, Respondent.
    No. 52776.
    Supreme Court of Missouri, En Banc.
    July 10, 1967.

      John C. Kibbe, California, Mo., John W. Inglish, Cullen Coil, Jefferson City, Carson, Inglish, Monaco & Coil, Jefferson City, of counsel, for respondent.
    Roger D. Hines, Columbia, for relator.
   HOLMAN, Chief Justice.

In this original proceeding in prohibition relator seeks to prevent the respondent, as Special Judge of the Circuit Court of Moniteau County, from proceeding further in the case of City of California, Missouri, vs. Walter H. Oesterly et al. Relator is a defendant in that case. The regular judge overruled a motion to dismiss, and respondent overruled a motion to stay proceedings, and we thereafter issued our provisional rule upon petition of relator.

The facts have been stipulated and a brief statement thereof will suffice for our decision. The City of California, Missouri (hereinafter sometimes called the “city”), is a city of the fourth class. Relator is a resident, property owner, and taxpayer of said city. On December 5, 1966, the board of aldermen of the city passed Ordinance No. 801 which directed the city to institute condemnation proceedings to acquire several hundred acres of land located outside the city limits for use in constructing and maintaining sewage lagoons thereon. Also directed to be acquired were easements a considerable distance in length for roadway and sewer line purposes.

On December 6, 1966, the city filed its petition, which became Case No. 4744, seeking to condemn the property and easements heretofore mentioned. On January 12, 1967, relator and others filed a petition for declaratory judgment and for injunctive relief against the city in which relator and the other plaintiffs alleged that the ordinance heretofore referred to was void for a number of reasons, including the contention that § 79.380 (statutory references are to RSMo 1959, V.A.M.S.) does not authorize the taking of property for sewage lagoons. Also, on January 12, 1967, upon motion of relator and others, the regular judge was disqualified in the condemnation proceedings and respondent was thereafter assigned to preside in that case. On the morning of January 25, 1967, respondent overruled the motion filed by relator and certain other defendants to stay proceedings in Case No. 4744 until after the declaratory judgment suit (No. 4750) was decided. Later that day, relator filed his petition for prohibition, we issued a stop order, and on February 13, 1967, issued a provisional rule.

The primary contention of relator is that “a city of the fourth class does not have the power to condemn private property outside its limits for use as sewerage lagoons or roadways.” He correctly asserts that “[t]he right of eminent domain is not inherent in municipalities and cannot be exercised by them without authority from the state.” In re Armory Site in Kansas City, Mo.Sup., 282 S.W.2d 464, 467. It is conceded that the city has the authority to condemn the easement for the sewer lines here involved. However, there is no statute which, in express words, gives it the authority to condemn a site for the construction of sewage lagoons. Our main task is to determine whether that right is necessarily implied from the wording of the applicable statutes.

There are two sections of the statutes which we think should be especially considered. Section 79.380, which was originally enacted in 1895, provides, in part, as follows: “The board of aldermen may * * * purchase or condemn and hold for the city, within or without the city limits, within five miles therefrom all necessary lands for hospital purposes, waterworks, sewer carriage and outfall * * *.” Section 71.680, originally enacted in 1929, contains the following: “In addition to their other powers for the protection of the public health, each city of the second, third, or fourth class of this state * * * may acquire by purchase, construction, lease, gift or otherwise, within or without the corporate limits of such cities * * * purification plants or sewage disposal plants for the purification of all sewage accumulating in such cities.”

In our consideration of the foregoing statutes we should bear in mind certain applicable, general rules. “Statutes granting the right of eminent domain are to be strictly construed. The rule is well settled in this state. The right is not to be implied or inferred from vague or doubtful language but must be clearly given in express terms or by necessary implication. * * * On the other hand, ‘while eminent domain statutes are to be strictly construed so far as the power to condemn is concerned, yet they are not to be construed so as to defeat the evident purpose of the legislature.’ State ex rel. Siegel v. Grimm, 314 Mo. 242, 284 S.W. 490, 493 ; 29 C.J.S., Eminent Domain, § 22, p. 806. Further, the doctrine of strict construction does not exclude a reasonable and sound construction of the statute under consideration.” State ex rel. Missouri Water Co. v. Bostian, 365 Mo. 228, 280 S.W.2d 663, 666. It has also been said that “the rule of ‘strict construction’ has no definite or precise meaning. It has only relative application. It is not the opposite of liberal construction, and it does not require such a strained or narrow interpretation of the language as to defeat the object. The primary purpose of all statutory construction is to determine the intent of the legislature; and all such rules are but vassals to the liege sovereign intent.” Southwestern Bell Telephone Co. v. New-ingham, Mo.App., 386 S.W.2d 663, 665, 666. And we have said that “[sjtatutes relating to the same subject matter must be considered together. This rule applies even though the statutes are found in different chapters and were enacted at different times.” State ex rel. Smithco Transport Co. v. Public Service Commission, Mo.Sup., 316 S.W.2d 6, 12.

Respondent contends that the city is authorized by the statutes to condemn for the purposes here involved, and relies almost entirely upon the case of State ex rel. Askew v. Kopp, Mo.Sup., 330 S.W.2d 882. He says we held in Kopp that §§ 71.680 and 79.-380 authorized cities of the fourth class to condemn sites for sewage disposal plants within five miles of the city. Relator denies that Kopp so held and points to the fact that it is essentially a zoning case. We agree with the contention of respondent that the Kopp case, if sound, is decisive of the issue as to the city’s right to condemn land for the construction of sewage lagoons. We held therein that §§ 71.680 and 79.380 gave fourth class cities that right. We note, however, that Kopp does not contain any analysis of those sections or any detailed discussion of the problem presented in the case at bar. In that situation we have concluded that we should re-examine the issue in the light of the applicable statutes.

Section 79.380 authorizes condemnation for “sewer carriage and outfall.” “Outfall” is defined as “the vent of a drain or sewer.” Webster’s Third New International Dictionary. It is likely, as suggested in the briefs, that when that section was enacted in 1895, the accepted method of disposing of sewage was to empty it into a stream. The section accordingly gave cities the only power of eminent domain needed at that time for sewage disposal. In more recent years the legislative bodies of both the state and federal government have placed great emphasis upon the protection of the public health. The practice of dumping raw sewage into streams is rapidly diminishing. It is therefore not surprising that when § 71.680 was enacted in 1929, it authorized cities to “acquire by purchase, construction, lease, gift or otherwise, within or without the corporate limits, * * * sewage disposal plants.” In that connection it should be noted that fourth class cities were at that time authorized to establish a general sewer system composed of public, district, and private sewers. See § 88.717. Since § 71.680 authorized cities to acquire sewage disposal plants by specifically listing almost every conceivable method of acquiring title, other than by condemnation, we should consider whether the words “or otherwise” would include that power. “Otherwise” has been defined as “in a different way or manner.” Webster’s Third New International Dictionary. Condemnation is a “different way” of acquiring land from those methods listed in the section.

We are unwilling to attribute to the legislature an intent to withhold from cities of the fourth class the right to acquire sites for sewage disposal plants by condemnation. Therefore, it is our view that the words “or otherwise” would reasonably be construed to include condemnation. Mash-ak v. Poelker, Mo.Sup., 367 S.W.2d 625 [4]. It is common knowledge that sewage disposal plants are essential to the public health. Section 71.680 contains specific authorization for cities to construct such plants. It is safe to assume that because of the nearness to streams, the soil texture, and for other reasons, certain sites are much more suitable for the construction of sewage lagoons than are others. It is not reasonable to believe (and we see nothing in the statute to so indicate) that the legislature intended to place cities in a position where they would have to pay any price an owner might ask in order to obtain a desirable site for a sewage disposal plant. When the legislature placed the words “or otherwise” in the statute it must have had a purpose for doing so. We think the general nature of the phrase indicates that it intended to authorize cities to use any method available in acquiring land for sewage disposal plants. Condemnation is a method often used by cities in acquiring land for public improvements and would come within the meaning of the phrase “or otherwise.”

Certainly, when §§ 71.680 and 79.-380 are considered in pari materia, we think they authorize condemnation by fourth class cities of easements and land for sewer lines and lagoons within five miles of the city. We accordingly approve the holding in State ex rel. Askew v. Kopp, supra. It is not necessary to determine whether land may be condemned beyond the five-mile limit because that here involved is within that distance and the question is therefore not before us.

The city also seeks to acquire an easement for a roadway apparently for use in obtaining access to the site of the proposed lagoons. It is obvious that the land condemned would be of no benefit to the city unless it could obtain access to it in order to construct and maintain the sewer lines and lagoons. The parties have apparently assumed that if the city had the right to condemn for the sewage lagoons it could condemn the easement for the roadway because, although it is mentioned by relator, neither party has briefed the question. The general rule is that the authority to condemn “must be given in express terms or by necessary implication.” State ex rel. Cranfill v. Smith, 330 Mo. 252, 48 S.W.2d 891, 893, 81 A.L.R. 1066. It is our view that the authority to condemn an access easement in order to construct and maintain sewer lines and lagoons is granted by necessary implication. It has been said that “land may be taken for purposes necessary to a reasonable enjoyment of those which have been authorized * * *.” Vol. I, Nichols on Eminent Domain, p. 375. We accordingly rule that the applicable statutes must be construed as authorizing, by necessary implication, the condemnation by the city of the easement'here sought.

Relator also contends that we should prohibit respondent from proceeding further in the condemnation case until the declaratory judgment case has been heard and finally decided. No case has been cited which supports that contention. We rule that point against relator. We have already ruled that the city has statutory authority to condemn land for the purposes in question. In the declaratory judgment petition the plaintiffs (including relator) allege a number of other reasons why the condemnation ordinance should be declared invalid, and also seek injunctive relief. However, it would appear that all of those alleged matters which have any direct relationship to the condemnation case may be asserted in the answer as defenses therein. In a somewhat similar situation we stated that “[w]here a plaintiff has an adequate remedy by law, he may not resort to a separate suit in a court of equity or the Declaratory Judgment Act * * *.” Glueck Realty Co. v. City of St. Louis, Mo., Sup., 318 S.W.2d 206, 211.

It follows from what we have heretofore said that the provisional rule in prohibition was improvidently issued and it is therefore ordered discharged.

All concur.


author: WELBORN, Commissioner.

text:
    Mark Aaron SIESS, by His Next Friend, Raymond Siess, and Raymond Siess, Plaintiff-Appellant, v. Lorene M. LAYTON, Defendant-Respondent.
    No. 52625.
    Supreme Court of Missouri, Division No. 1.
    July 10, 1967.
    Thomas J. Briegel, Union, for appellant.
    James A. Cole, Jenny & Cole, Union, for respondent.
   WELBORN, Commissioner.

May a person under the age of sixteen years and therefore not qualified to obtain a motor vehicle operator’s license maintain a cause of action for injuries sustained while operating a vehicle on the highway? The circuit court held that such a person is “incompetent as a matter of law” and therefore has no cause of action.. This appeal followed.

Mark Aaron Siess, through his father as next friend, brought suit for $150,000 damages for injuries sustained by Mark in a collision with an automobile operated by defendant on Route 30 in Franklin County, Missouri, on October 3, 1963. At the time of the collision, Mark, some fourteen years and eight months of age, was driving an Allstate Mo-Ped Motorbike, described in his petition as a motor vehicle. The petition specified numerous grounds of negligence on defendant’s part and defendant’s answer charged Mark with contributory negligence on numerous grounds. Upon the filing of answers to interrogatories revealing the date of Mark’s birth, defendant moved for a summary judgment on the grounds that Mark “was an underage, unauthorized driver of a motor vehicle upon the highways of the State of Missouri and was, therefore, guilty of contributory negligence as a matter of law * * Plaintiff filed an affidavit in opposition to the motion, in which he admitted that he was, at the time of the accident, an unlicensed driver and under sixteen years of age. He alleged, however, that he was, at the time of the collision, operating his vehicle in a careful and prudent manner and in no way contributed to cause the collision.

The trial court’s finding was: “ ‘That under the law, the plaintiff, Mark Aaron Siess, is incompetent as a matter of law as has been declared by the statutes of the State of Missouri as being too young to drive.’

“On this showing, defendant has established that plaintiff has no cause of action * *

Summary judgment was ordered in favor of defendant and this appeal followed.

§ 302.060(2), RSMo 1959, V.A.M.S., prohibits the issuance of a motor vehicle operator’s license to any person under the age of sixteen years, with certain exceptions not here applicable. Mark, having no license at the time of the accident, was operating his vehicle in violation of § 302.020 (2), RSMo 1959, V.A.M.S. He was also violating § 564.470, RSMo 1959, V.A.M.S., prohibiting the operation of a motor vehicle on the highways by a person under the age of sixteen years. No statute purports to make either such violation a disqualification to sue for injuries sustained in the course of such violation.

Although defendant’s motion placed the alleged bar to plaintiff’s action upon the grounds of his violation constituting contributory negligence as a matter of law, the trial court did not make such an express finding but found plaintiff “incompetent” and therefore unable to maintain his cause of action.

Generally, violation of driver licensing statute is not a bar to recovery by an unlicensed driver for injuries sustained by him in accident involving his operation of a motor vehicle. 7 Am.Jur.2d, Automobile and Highway Traffic, § 368, p. 915; 60 C.J.S. Motor Vehicles § 162, p. 497. In Faust v. East Prairie Milling Co., Mo.App., 20 S.W.2d 918, the court held that, in an action charging negligence in the employment of an incompetent chauffeur, “the charge that such chauffeur had no license was wholly irrelevant, since it had no causal connection with the accident.” 20 S.W.2d 918 [1],

“The fact that a person is doing an illegal act does not prevent him from maintaining an action for harm caused by the negligence or ultrahazardous activities of a third person. Nevertheless, if the injured person has violated a statute designed to prevent a certain type of risk, he is barred from recovery for harm caused by violation of the statute if, but only if, the harm resulted from a risk of the type against which the statute was intended to give protection.” 4 Restatement of Torts, § 889, Comment b, p. 472.

“The mere failure to have a driver’s license does not establish a causal connection between the operation of the vehicle and an injury.

“Statutes providing for the issuance of licenses to operate motor vehicles on proof to the satisfaction of a designated official that the applicant is a proper person to receive a license, prohibiting the operation of a motor vehicle without a license, and forbidding the issuance of a license to persons under a certain age, do not, without more, deal with the rule of care required from the operator.” 3 Blashfield Automobile Law and Practice (3rd ed.), § 101.35, p. 97.

“Most licensing statutes, such as those applicable to automobile drivers or physicians, have been construed as intended only for the protection of the public against injury at the hands of incompetents, and to create no liability where the actor is in fact competent but unlicensed.” Prosser on Torts (3rd ed.), § 35, pp. 197-198.

We do have cases in which an underage driver has been described as “incompetent as a matter of law.” The Springfield Court of Appeals in Thomasson v. Winsett, 310 S.W.2d 33, 36, and in Ritchie v. Burton, 292 S.W.2d 599, 607, employed such language in considering application of the “dangerous instrumentality” doctrine in suits against vehicle owners who had permitted others to drive the vehicle. In Thomasson, the driver was under sixteen. In Ritchie, the driver was more than sixteen, but unlicensed. Language to similar effect may be found in Dinger v. Burnham, 360 Mo. 465, 228 S.W.2d 696, in which the question involved was whether the negligence of an underage minor might be imputed to the plaintiff, mother of the driver. Just what negligence was charged to the driver does not appear. The facts showed lack of exercise of the proper standard of care on the part of the driver, without regard for his age or unlicensed status. Those cases all involved the obligation or liability of a person who entrusted his vehicle to an unlicensed driver, in two of the cases an underage driver. None considered the right of the unlicensed driver to recover for injuries which he received. Thomasson was an action for the wrongful death of the unlicensed, underage driver. However, no question appears to have been raised as to the right to maintain the action for his wrongful death.

Respondent contends that these cases, alluding to persons ineligible by reason of age to obtain a driver’s license as “incompetent as a matter of law,” properly support the trial court’s ruling in this case.

The cases relied upon by respondent did not involve, directly, the rights or liability of the underage driver. The question presented related to the obligation of the parent or owner who had entrusted a motor vehicle to the underage driver, in violation of a statute applicable to the parent (§ 302.250, V.A.M.S.) or owner (§ 302.260, RSMo 1959, V.A.M.S.). Whatever the significance of “incompetence as a matter of law” of an underage driver in such cases, we find no reason for concluding that such driver’s assumed incompetence must deprive him of a right of action for injuries received when he is actually in the exercise of the proper degree of care. In the “dangerous instrumentality” cases, the driver has demonstrated his incompetence by some negligent act in the absence of which there would be no liability on the part of the owner. See Carter v. Montgomery, 226 Ark. 989, 296 S.W.2d 442. Likewise, in an imputed negligence situation, the driver has been guilty of an act of negligence which is to be imputed to another. Such cases cannot govern the right of action in a case such as this. This case presents no exception to the general rule above stated and the trial court should not have sustained the respondent’s motion for summary judgment

Reversed and remanded.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

HENLEY, P J., SEILER and HOLMAN, JJ., concur.

STORCKMAN, J., not sitting when cause was submitted.


author: THEODORE McMILLIAN, Special Judge.

text:
    Dessie Irene PANKEY, Plaintiff-Respondent, v. Orville J. CLAYWELL, Defendant-Appellant.
    No. 32706.
    St. Louis Court of Appeals. Missouri.
    June 13, 1967.

      Roberts & Roberts, Raymond R. Roberts, Farmington, for defendant-appellant.
    Robert A. Mcllrath, Flat River, Charles G. Hyler, Farmington, for plaintiff-respondent.
   THEODORE McMILLIAN, Special Judge.

This is an action for damages arising out of personal injuries that plaintiff, a pedestrian, suffered when she was struck by defendant’s automobile. Verdict and judgment for $2,500.00 was for the plaintiff, and the defendant has appealed. We shall refer to the parties as they were designated in the trial court.

There is but one point raised upon the appeal; that is, that the plaintiff failed to make a submissible case under the humanitarian doctrine of negligent failure to slacken speed, or to swerve the automobile, or to sound a warning of its approach.

The accident occurred on March 27, 1965, on Science Street at its intersection with Main and Rinke Streets in Flat River, Missouri. For our purposes, Main Street runs east and west; however, west of the intersection, it bends northwestwardly. Westbound travel on Main is upgrade. Science Street runs to the north and south and enters Main Street from the south but does not cross it. On the southwest corner of Main and Science Streets is Schramm’s building.

Science Street is 45 feet wide, sidewalk to sidewalk. The traveled portion of the pavement on Science is 22.5 feet wide. On each side of the traveled portion of Science (between the pavement and the sidewalk) is an 11 foot blacktop parking strip. On the west side of Science Street, the sidewalk is 2.5 to 3 feet above the street level. Steps, located on the southwest corner of Main and Science Streets, lead from the sidewalk to the level of Science. All traffic at the intersection is controlled by stop signs.

Plaintiff had been shopping and was walking eastwardly on the south side of Main Street by the side of the Schramm building. She testified that she walked down the steps to the level of Science Street; that she saw some cars stopped at the stop sign on Main Street (eastbound) and some stopped at the stop sign for northbound Science Street travel; however, she did not see any cars at the stop sign for westbound travel on Main Street. Then, testifying further, she said she intended to walk eastwardly across Science and had walked about 12 feet over the blacktop when she looked for cars again, and she saw none at either the Main or Science Street stop signs. Next, she started across Science Street (traveled portion), and had "reached the center of the street “ * * * and done and stepped my right foot across the center * * * line” when she saw a white car for the first time. She testified further that she did not know how far it was from her; she saw it was going to hit her; she did not hear the sound of either brakes squealing or a horn; and thereafter, she had no recollection.

Plaintiff’s witness, William E. Brady, testified that he was stopped at the westbound stop sign on Main Street, east of the intersection; that another car, not involved in the accident, was in front of him; that he saw defendant’s right fender strike plaintiff when she was right of the center of defendant’s car; that plaintiff landed near the center of the street; that he saw defendant’s car going- “west” (south) in a parallel position on Science Street; that he estimated the speed of defendant’s car to be between 8 to 12 miles per hour, and plaintiff was about 5 feet from defendant’s car when the witness saw her for the first time. From his vantage point, he placed the accident 30-35 yards away.

Plaintiff’s son, James Pankey, who arrived after the accident, testified (looking at Plaintiff’s Exhibit E, a picture looking westwardly on Main Street) that the stop sign shown in the exhibit had been moved into the position shown thereon after the accident. In his opinion, it was about 45 feet back to the east. He also said that on the scene, he saw skidmarks approximately 13.6 feet long leading up to defendant’s car; and that they began at the crosswalk from Schramm’s building, in the southbound lane on Science and continued southwardly 8-10 inches into the northbound lane. He estimated that the distance from the westbound stop sign on Main, as shown in Exhibit E, to the center line of Science to be about 45 feet.

Defendant, in his own behalf, testified that he was on his way home that afternoon. His route was to go westwardly on Main to Science Street and then to make a left turn on to Science. He said he stopped at the stop sign, which according to him had been placed in the position shown in Plaintiff’s Exhibit E prior to the accident; that he saw plaintiff for the first time when she was perhaps 8-10 feet from his automobile, and that she was about half way into defendant’s lane. She was not in the crosswalk but 15-16 feet south of it; that his speed by then was 10-15 miles per hour, and plaintiff was near the right side of his car; and that as he struck her, he swerved to the left. Defendant further testified that a person walking down the Main Street steps and across the pavement would be visible for about 200-300 feet.

Defendant’s witness, Officer James L. White, testified also that the westbound stop sign on Main Street had been placed as shown in Exhibit E prior to the accident; that the skidmarks found and measured by him were all centered in the southbound lane of Science; that they commenced 7 feet south of the crosswalk across Science. He said further that he found plaintiff lying on the center line 20 feet south of the crosswalk; and that plaintiff’s left shoe was under the left front tire of defendant’s automobile.

In passing upon the sufficiency of the evidence to make a submissible case, we must review the facts and the reasonable inferences to be drawn from them in a light most favorable to the plaintiff’s case. In so doing, we disregard defendant’s evidence unless it aids plaintiff’s case. Brown v. Wooderson, Mo., 362 S.W.2d 525; and Kirks v. Waller, Mo., 341 S.W.2d 860.

Under the humanitarian doctrine, no duty to act is imposed upon, a defendant until a situation of immediate danger arises. At this time only, does the doctrine commence to operate, and the antecedent negligence of either the plaintiff or the defendant is not to be considered. Mayfield v. Kansas City Southern R. Co., 337 Mo. 79; 85 S.W.2d 116; Bafaro v. Pezzani, Mo. App., 376 S.W.2d 631, 633(4). The classic statements of the essential ingredients of a humanitarian case as set forth in Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482 are: (1) Plaintiff was in a position of peril; (2) defendant had notice thereof (if it was the duty of defendant to have been on the lookout, constructive notice suffices); (3) defendant after receiving such notice had the means at hand to have averted the impending injury without injury to himself or others; (4) he failed to exercise ordinary care to avert such impending injury; and (5) by reason thereof, plaintiff was injured.

The application of the doctrine in no way has altered the rule that the burden of proof is upon the plaintiff; Moore v. Ervin, Mo., 374 S.W.2d 142, 149 (3, 4) ; Vietmeier v. Voss, Mo., 246 S.W.2d 785; and the claimed negligence of the defendant cannot be left to speculation, guess, or conjecture. It is stated in Vietmeier v. Voss, supra:

* * * Sometimes humanitarian cases require niceties in calculations for the doctrine begins to operate and seizes the facts when imminent peril arises. The duty to make his case is upon plaintiff and he must remove it from the field of conjecture and establish it by substantial evidence of probative value, or by inferences reasonably to be drawn from the evidence. If the evidence presents a situation from which liability or nonlia-bility may be equally inferred, the court must declare that no case has been made, (citing cases) This involves the question of whether the evidence is in truth substantial, which is one of law, as distinguished from mere conflict in the evidence, which is one of fact for the jury.”

Of course, the first essential question for our determination is when did the plaintiff, if so, come into a position of immediate danger. From the evidence, a jury could have found that plaintiff was in a position of peril from the last time she looked back to the north (left) and took her first step onto the southbound traveled portion of Science Street, and that this peril continued up until the moment of impact. Also, the jury could have found further that as plaintiff walked the distance to the center line, she was oblivious to any peril.

The defendant said he did not see plaintiff until she was 8 to 10 feet from his automobile, but this is immaterial on the issue of humanitarian negligence. Because in the exercise of the highest degree of care, on public streets, the defendant was under a duty to keep a lookout and where such a duty exists, the humanitarian rule •is predicated upon discoverable, as well as discovered, peril. Krause v. Pitcairn, 350 Mo. 339, 167 S.W.2d 74, 76; Womack v. Missouri Pacific R. Co., 337 Mo. 1160, 88 S.W.2d 368. ‘A failure to keep a lookout, at a place where there is a duty to do so, is not, under our Missouri humanitarian rule, any excuse for failing to prevent injury to one whose peril could have been discovered in time to prevent his injury if such a lookout had been kept. In other words, in spite of a failure to keep a lookout, the humanitarian doctrine may come into operation, not because that is in itself humanitarian negligence, but because we have, at places where there is a duty to keep a lookout, extended the humanitarian rule to discoverable as well as discovered peril. * * * If there was a duty to keep a lookout, the question is could he have been seen in time if it had been kept, and not was a lookout kept.’ Mayfield v. Kansas City Southern Ry. Co., (Mo.Sup.) 85 S.W. 2d 116, 123.” Consequently, under plaintiff’s evidence, a jury could reasonably find that after plaintiff came into a position of peril, she walked a distance of approximately 11.25 feet to the center line which, at the rate of 2 to 3 miles per hour, or 2.9 to 4.4 feet per second, would have consumed approximately 3.75 or 2.4 seconds. DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628.

The next crucial question for decision is what could the jury have found concerning defendant’s ability, in the exercise of the highest degree of care, to avert the casualty after plaintiff came into a position of discoverable peril. Kuehn v. Hahn, Mo., 380 S.W.2d 445. In other words, is there any substantial evidence that defendant could have, after plaintiff came into a position of immediate, discoverable peril, avoided the accident in the time left with the means at hand and with safety to himself and others? Plaintiff submits, in this respect, that defendant could have slackened his speed, swerved his automobile, or sounded a warning of his approach, citing Breitschaft v. Wyatt, Mo.App., 167 S.W. 2d 931; and Kuehn v. Hahn, supra.

In the Breitschaft case, plaintiff was struck by defendant’s left-turning vehicle while standing about 9 feet from the curb. There, too, the plaintiff neither saw nor knew what struck him, and defendant likewise, as here, had an unobstructed view of the intersection from the time plaintiff left the curb up to the point of impact. Here the similarities stop, for in that case, there was never any question as to where the defendant was at the time plaintiff came into a position of discoverable peril. Defendant said himself that when he was 40-50 feet south of the intersection, he slowed down to 10-15 miles per hour and that he could stop his vehicle in 4 or 5 feet. The Court held under those circumstances, it was a jury question as to whether or not defendant had the ability to stop his vehicle, in the exercise of the highest degree of care, after plaintiff was in a position of discoverable immediate danger.

In Loyd v. Moore, Mo.App., 390 S.W.2d 951, a more appropriate case, plaintiff, a pedestrian, walked a distance of 30 feet when he was struck by defendant’s left-turning vehicle. We held that a jury could have reasonably found that from the time defendant left the stop sign to the time and point of impact (89.5 feet away), defendant, in the exercise of the highest degree of care, could have seen plaintiff continuously as he moved (more than 30 feet) to the point of impact. We reached that conclusion on the basis that plaintiff said as he left the northeast corner, he saw four cars to his right coming south. He then walked to a point 3 to 4 feet east of the center of Goodfellow where he stopped because the southbound cars had come to a stop. In the same connection, defendant said when she was stopped at the stop sign on the southwest corner, she, too, saw cars coming south which she realized had to stop for the stop sign for southbound traffic; therefore, she proceeded to make her left turn. We said, under those circumstances, a jury could have reasonably found from defendant’s testimony that as she proceeded out to the point where she began to make her left turn, the southbound cars she had observed had come to a stop. Therefore, while she was moving her car from a stopped position at the stop sign to the point where she proceeded to make her left turn, which was three-fourths of the way out into the western lanes of Goodfellow, plaintiff was walking from the northeast curb to the point where he stopped. So, here, too, there was evidence (22.5 ft.) from which a jury could locate defendant at the time plaintiff came into peril up to the time of impact.

In the instant case, there is no evidence, direct or indirect, from which we may locate the automobile of the defendant at the moment plaintiff came into a position of discoverable imminent peril. Absent this one fact, there are no niceties in calculations for the doctrine to operate and seize the facts when imminent peril arises. The duty to make the case is upon plaintiff and the claimed negligence of the defendant cannot be left to speculation, guess, or conjecture. Vietmeier v. Voss, supra; Moore v. Ervin, supra, and Reese v. St. Louis Public Service Co., Mo.App., 368 S.W.2d 540.

Inasmuch as we do not know where defendant’s automobile was at the time plaintiff came into a position of discoverable peril, we hold that plaintiff did not make a submissible case on any theory. This for the reason that plaintiff’s evidence has failed to remove defendant’s ability to slacken his speed, swerve his automobile, or to warn of his approach from the realm of speculation. Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494, (8, 9). Therefore, we hold that the trial court committed prejudicial error in submitting the cause of action to the jury upon humanitarian negligence. Accordingly, the verdict and judgment is reversed.

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


author: STONE, Presiding Judge.

text:
    Winston E. WALKER and Margaret Walker, Plaintiffs-Appellants, v. B. F. MASSEY, Defendant-Respondent.
    No. 8606.
    Springfield Court of Appeals. Missouri.
    June 10, 1967.

      Charles D. Tudor, A. L. Shortridge, Joplin, for plaintiffs-appellants.
    James A. Dunn, Carthage, for defendant-respondent.
   STONE, Presiding Judge.

In this jury-tried action for the alleged wrongful death of their unmarried minor son, Robert Allen Walker, then seventeen years three months of age, as the result of a no eyewitness vehicular tragedy in Joplin, Missouri, on August 3, 1965, plaintiffs obtained a unanimous jury verdict for $12,500 upon which judgment was entered. Sections 537.020, 537.080, 537.090. (Except as otherwise specifically stated, all statutory references herein are to RSMo 1959, V.A.M.S.) There was no after-trial motion to set aside that verdict and judgment and for entry of judgment in accordance with defendant’s motion for a directed verdict at the close of all the evidence [V.A. M.R. Rule 72.02]; but defendant’s timely motion for new trial was sustained on the specified ground that “plaintiffs’ decedent was guilty of contributory negligence as a matter of law.” V.A.M.R. Rule 78.01. On this appeal by plaintiffs who charge that the circuit court erred in so holding, defendant undertakes to support the order on two grounds, namely, that “there was no evidence of any actionable negligence on the part of defendant which was the proximate cause of the accident” and that “plaintiffs’ decedent was guilty of contributory negligence as a matter of law, which negligence was the proximate cause of the collision.” With the case in this posture, our factual review should and does give appropriate recognition to the basic principle that, in determining the submissibility of plaintiffs’ case and whether their decedent was con-tributorily negligent as a matter of law, we must consider the evidence in the light most favorable to plaintiffs, must accord to them the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant’s evidence except insofar as it may aid plaintiffs’ case. Wilson v. Shumate, Mo., 296 S.W.2d 72, 74(1); Bridges v. Arkansas-Missouri Power Co., Mo.App., 410 S.W.2d 106, 107-108(1) ; Clohesy v. Century Electric Co., Mo.App., 142 S.W.2d 780, 782(1).

The tragedy under consideration occurred about 10:30 P.M. on Tuesday, August 3, 1965, when a 1959 Renault sedan driven by plaintiffs’ son, then northbound on Indiana Avenue, ran under and into the rear end of defendant Massey’s unlighted 1950 Ford two-ton truck with flat bed, then parked, headed north, at the east curb in front of a new residence numbered 2427 Indiana. Indiana Avenue is a “heavily-traveled” north-south street with an asphalt roadway 36 feet in width between the concrete curbs. The place of accident was in a new residential area within the city limits of Joplin and near the center of a long double-length block on Indiana between 24th Street and 26th Street, intersecting east-west streets. The residence at 2427 Indiana was the southernmost house on the east side of that double-length block. There were no houses on the west side of that block but the campus of Joplin High School lay just north of 24th Street on the west side of Indiana.

Defendant’s Ford truck with a full load of blue grass sod on the flat bed had been parked about 7 A.M. on August 3, the date of accident, in front of the residence at 2427 Indiana where it was still standing when plaintiffs’ decedent ran into it about 10:30 P.M. that same day. The sod was loaded in rolls with the grass on the inside and the dirt on the outside of each roll. Since the sod was hauled for a contractor whose employees were to lay it, defendant and his driver simply parked the loaded truck and then departed. Defendant returned to the parked truck between 6 P.M. and 7 P.M. the same day with the intention of taking it home if the sod had been unloaded. However, about one-third of the sod was still on the front end of the flat bed, so defendant did not move the truck.

The outside right rear dual tire on the parked truck was about four inches from the east curb. The flat bed constructed of “wood and steel” was 18 feet 1½ inches in length and 7 feet 10¾ inches in width. The height of the truck bed above the pavement was not shown specifically, but photographs in evidence, taken at the scene of accident before either vehicle was moved, show that the front end of the Renault, a so-called “compact” automobile, ran under the rear end of the bed which protruded 4 feet 4½ inches beyond the rear wheels of the truck, and that there was a solid, shattering impact between the rear end of the truck bed and the windshield and upright front corner posts of the Renault.

The rear end of the truck was equipped with four lights, to wit, a “clearance light” attached to the under side of each rear corner of the truck bed, a large “stop light * * * a big light when it lit up” attached to the frame about 18 inches from the protruding rear end of the truck bed, and a smaller “stop and tail light combined” also mounted on the frame to the left of and just below the large stop light. Each of these lights had a red lens over it, but none was burning on the night of accident. The nearest street light was at the intersection of Indiana and 26th Street, approximately 270 feet south of the rear end of the parked truck. As to the character of the night on which this accident occurred, the transcript affords only such information as may be gleaned from the scant, unelaborated statements that the night was “dark” and Indiana was “a dark street” and from defendant’s agreement with plaintiffs’ counsel that there had been no rain that day “to my knowledge.”

In approaching the parked truck from the rear, northbound motorists on Indiana, such as plaintiffs’ decedent and the witnesses to whose testimony we shortly refer, traveled up a gentle, uninterrupted incline with no perceptible change of grade to tilt headlight beams during the entire distance of approximately 270 feet from 26th Street to the point of accident. The crest of this gentle rise was a short distance (not measured or estimated in feet) ahead or north of the parked truck, but the grade turned down so gradually that there was (as the photographic exhibits demonstrate) no material limitation of sight distance for motorists. The speed limit on Indiana was 35 miles per hour.

Plaintiffs produced three witnesses who had driven past the parked truck on the night of accident. Witness Conrad, a musician “heading for work,” was driving north on Indiana “just at dark * * * approximately 8 P.M.” at a speed of about 30 miles per hour with the headlights on his 1963 Ford automobile on high beam when he first sighted the parked truck “I would say 50 feet” ahead and avoided it by turning to his left. Conrad emphasi2:ed that “I didn’t hardly see the truck” — it was “very difficult to see” — “it was blended with the night; there wasn’t any markings or anything” — “I almost hit the truck.” He offered the explanation that he had been driving “over to the right [east] side of the road” as he approached the crest of the rise on Indiana because he had never seen a vehicle parked along that curb at night.

Witness Still, the proprietor of an office supply business who had known plaintiffs’ decedent as a member of his (Still’s) Sunday School class, was driving north on Indiana about 9:30 P.M. at a speed of 25 to 30 miles per hour when he first saw the parked truck “between five and six yards” ahead and, reacting on “a quick reflex,” avoided the truck by turning “slightly” to his left. Before he turned, Still “wasn’t too close to the [right] curb” anyway — “six to eight feet” from it.

Witness Await, a coproprietor with her husband in the operation of a retail paint business who had driven south past the parked truck earlier in the day and thus knew of its location, returned northbound on Indiana about 8:30 P.M. This witness did not profess to have narrowly escaped a collision with the truck, but she said that “you had to be pretty close to it to see it * * * I wouldn’t say just how close because I don’t exactly know.” None of these passers-by saw any lights, reflectors, warnings or flares on or about the parked truck.

Plaintiffs’ decedent was an honor student and engaged in several extracurricular activity at Joplin High School where he would have been a member of the Senior Class the ensuing school year. He was an industrious youth and, during the Summer of 1965, worked as a counterman at a McDonald’s hamburger stand. After going off duty at 10 P. M. on the night of accident, he stopped at a nearby drug store where his mother was employed, told her that he would pick up a half-gallon of ice cream to take heme, and purchased at the drug store two legal tablets to deliver to Tom Berman, a handicapped schoolmate with whom he was associated in debating activities. He purchased the ice cream at Anderson’s between 10:15 and 10:20 P.M. and, at the time of his fatal accident, apparently was on the mission of delivering the legal tablets since the place of collision was on the route to the Berman home.

The 1959 Renault driven by plaintiffs’ decedent was “a used car” which had been purchased only two or three weeks prior to the accident. Plaintiff Winston E. Walker, the father in whose name title was taken, had inspected and checked the automobile carefully at that time. He testified that the headlights functioned properly, there was nothing “loose or wrong” with the steering mechanism, all of the tires were “reasonably good,” and the mechanical brakes “worked all right” so that, “if you pressed down on the brakes hard * * * it [the Renault] would stop.” There was no inquiry as to whether or not an emergency application of the brakes' would skid the tires.

As noted at the outset, there was no known eyewitness to this tragedy. However, the grim photographic exhibits establish that the northbound Renault driven by plaintiffs’ decedent ran squarely under and into the protruding rear end of the flat bed on defendant’s parked truck with both left wheels of the Renault in line with (i.e., approximately the same distance from the east curb as) the outside left rear dual wheel on the truck. Since the Renault was (so investigating officer Roberts of the Joplin Police Department estimated) only about four and one-half feet in width, the right side of the wrecked Renault was “roughly three feet from the [east] curb” although the outside right rear dual tire on the truck was only four inches from that curb. The Renault left no tire or skid marks on the pavement. The irrefutable physical evidence afforded by the extensive damage to the entire front end of the Renault justifies and commands characterization of the impact as severe rather than mild. However, any pronouncement as to the degree of severity or as to the speed at which the Renault was traveling at the moment of impact would reflect nothing more than unbridled guesswork and sheer speculation, particularly so by reason of the salient fact that the Renault was a light “compact” whose front end ran under the protruding rear end of the flat bed on the truck.

We have not overlooked defendant’s contention that what appear to be some tire prints behind the right rear dual wheels on the truck, as shown in one photographic exhibit, established that the truck had been moved forward “ten inches to one foot” by the impact. Conceding arguendo that this might have been a permissible inference to be drawn by the finders of the facts, certainly we cannot say that these tire prints in a single photograph compelled such inference, particularly so since investigating officer Roberts said that he did not notice those marks — “I couldn’t see them,” there was no oral testimony concerning them, and other photographs show no tire prints behind the left rear dual wheels, the side on which the major force was delivered by the Renault.

As a result of the collision, plaintiffs’ decedent sustained a skull fracture, severe brain concussion, compound fracture of' the nose and throat, and multiple lacerations about the head, all apparently due in large part to a blow “in the right eye and right forehead” when the end of the truck bed crashed through the windshield of the Renault. He was unconscious when found and never regained consciousness before death came eight days later.

Did plaintiffs make a submissible case of actionable negligence? Plaintiffs’ uncontroverted evidence was to the effect that there were no lights, reflectors, warnings or flares on or about the parked truck. Numerous cases have declared that it is negligence per se to permit a motor vehicle to remain at rest without lights on a highway, during the period when lights are required by Section 304.270 (9) , However, instant defendant contends that the statutes “concerning the placing of lights on parked vehicles concern themselves with vehicles which are parked either in the traveled portion of the roads or on a highway or shoulder adjacent thereto” and that “this requirement does not extend to cars or vehicles which are lawfully parked along the curb in a normal parking place.”

In our investigation of statutory requirements, we must bear in mind the definition of “highway” in Section 301.010: “As used in chapter 301 and sections 304.010 to 304.-040 and 304.120 to 304.570, RSMo, the following terms mean: * * * (6) ‘Highway,’ any public thoroughfáre for vehicles, including state roads, county roads and public streets, avenues, boulevards, parkways or alleys in any municipality”. (All emphasis herein is ours.)

Section 304.310 provides: “No person shall drive, move, park or be in custody of any vehicle or combination of vehicles on any street or highway during the times when lighted lamps are required unless such vehicle or combination of vehicles displays lighted lamps and illuminating devices as this chapter required. * * * ” On August 3, 1965, the date of the accident under consideration, Section 304.380 required: “Every motor vehicle * * * shall be equipped with at least one rear lamp, not less than fifteen inches or more than forty eight inches above the ground upon which the vehicle stands, which when lighted will exhibit a red light plainly visible from a distance of five hundred feet to the rear * *

The only exception to the plain requirement imposed by the aforesaid statutes is that found in the first paragraph of Section 304.450, as amended Laws 1961, p. 497: “1. Whenever a vehicle is lawfully parked upon a street or highway during the hours between a half hour after sunset and a half hour before sunrise and in the event there is sufficient light to reveal any person or object within a distance of five hundred feet upon such street or highway no lights need be displayed upon such parked vehicle.” In the instant case, defendant makes no contention, and there was no evidence, that at the time of collision there was sufficient light to have revealed the parked truck for a distance of five hundred feet.

In support of his hereinbefore-quoted contention that the cited statutes are applicable only to vehicles parked “in the traveled portion of the roads or on a highway or shoulder adjacent thereto” and not to those “lawfully parked along the curb in a normal parking place,” instant defendant cites two cases. In the first, McLarney v. Cary, Mo.App., 98 S.W.2d 144 (1936), plaintiff sought $41.85 for property damage sustained when he ran into defendant’s unlighted track in a parking zone in the center of Main Street in the City of Brookfield. “[N]umerous electric lights were shining in the vicinity of the accident.” 98 S.W. 2d at 145. In the opinion of the Kansas City Court of Appeals, per Shain, P. J., affirming the judgment nisi for defendant, we find the naked ipse dixit, born without the parentage of prior judicial authority, never recognized by judicial citation or discussion, and never legitimatized by judicial adoption in any reported Missouri case, that “[a]s to being parked without light in a parking zone, we conclude that the statute as to stopping on the public highway [Section 7778, RSMo 1929] does not apply.” 98 S.W.2d at 146 (4). Subsequent radical changes in said Section 7778 [originally Laws of 1921, 1st Ex. Sess., § 22, p. 95], the tedious and involved text of which covered more than two full pages in the decennial revision of 1929, render the quoted ipse dixit in McLarney, supra, meaningless in the present state of the statutory law in this area anyway. However, it may not be amiss to observe in passing that said Section 7778 dealing with “Lights” was, by its terms, applicable to any motor vehicle, “while on the highway, whether in operation or at rest,” and that Section 7759, RSMo 1929, in the same article then provided that “[w]herever in this article * * * the following words or terms are used, they shall be deemed and taken to have the meanings ascribed to them as follows: * * * ‘Highway.’ Any public thoroughfare for vehicles, including state roads, county roads and public streets, avenues, boulevards, parkways or alleys in any municipality.” Furthermore since, as our Supreme Court stated in Teters v. Kansas City Public Service Co., Mo., 300 S.W.2d 511, 516, the judgment for defendant in McLarney, supra, was affirmed “because plaintiff was guilty of contributory negligence as a matter of law”, then the naked ipse dixit concerning the applicability of the then statute on “Lights” (Section 7778) was mere dictum even as the preceding holding [98 S.W.2d at 146 (3)] thus paraphrased in Teters, supra, 300 S.W.2d at 516, to wit, “that a motor vehicle while parked is not being operated and the operator need only exercise ordinary care,” was there declared to have been dictum. In short, we regard Mc-Lamey, supra, as neither controlling nor persuasive here.

In the other of defendant’s cases, Lemken v. Brooks Track Lines, Inc., Mo., 322 S.W.2d 803 (of which more anon), where plaintiff had a nighttime collision with the rear end of an unlighted trailer parked on a street in Kansas City, the judgment nisi for defendant was affirmed on the ground that plaintiff had been guilty of contributory negligence as a matter of law. In distinguishing certain Missouri cases in which the issue as to contributory negligence had been for the jury, the Lemken opinion noted, inter alia, that those cases “involved collisions with stationary vehicles which were blocking the travel portions of highways outside the limits of a city or town, places where the plaintiffs had no reason to anticipate the presence of stationary trucks” whereas “[i]n the instant case the unlighted trailer was parked at the curb of a city street, where vehicles normally park and are expected to be.” 322 S.W.2d at 807. The quoted observations simply referred to a fact well-known to the ordinary motorist, namely, that regardless of statutory lighting requirements unlighted motor vehicles frequently are parked on city streets— one fact among many to be considered in determining whether a motorist has been contributorily negligent as a matter of law in colliding with an unlighted parked vehicle, but wholly irrelevant in determining what statutory duties are imposed upon the operator of the parked vehicle and whether a submissible case of primary negligence has .been made against such operator. In Lemken, supra, the court did not discuss or rule any issue as to the primary negligence of the operator of the unlighted parked trailer, and we find the significant comment that “[f]he lack of lights on the parked trailer may have been evidence of defendants’ negligence but it does not, in the reviewed circumstances of this case, explain or excuse the failure of plaintiff to have seen the unlighted trailer unit in time to have avoided it.” 322 S.W.2d at 806.

It is our conviction that the lighting requirements imposed by Sections 304:310 and 304.380 (subject to the exception stated in the first paragraph of Section 304.450) are applicable to a vehicle parked at the curb on a city street, as was instant defendant’s truck, and that we have no right to extirpate by judicial fiat those obligations enjoined by the unambiguous and unequivocal language of the cited statutes. This, we believe, is in harmony with, and is supported by, the discussion concerning those statutes in Wiber v. Mana, Mo., 356 S.W.2d 88, 90-91. See also Casto v. Railway Express Co., Mo.App., 219 S.W.2d 276, where plaintiffs’ northbound cab on Morley Street (over which Highway 63 was routed) within the city limits of Moberly ran into the rear end of defendant’s truck “parked at the right-hand side of the highway, facing north” — “standing on the east side of the highway in somewhat of an angular position with the rear wheels some distance from the curb,” when under “the prevailing conditions [as shown by witnesses whose testimony was somewhat similar to that of instant plaintiffs’ witnesses] it was quite difficult to see the truck until very near to it.” 219 S.W.2d at 278.

We recognize that, as instant defendant points out, negligence to be actionable must be a proximate cause of injury [Graham v. Conner, Mo.App., 412 S.W.2d 193, 201-202(7), and cases there cited], and that defendant’s failure to satisfy statutory lighting requirements would not have been a proximate cause of the collision under consideration if, in the exercise of the highest degree of care, plaintiffs’ decedent could and should have seen the parked truck in time thereafter to have taken effective precautionary or evasive action. Rowe v. Henwood, Mo. App., 207 S.W.2d 829, 833(2). However, we need not prolong this opinion by a discussion of proximate cause, for defendant’s argument on this subject is commingled and merged with his argument that plaintiffs’ decedent was guilty of contributory negligence as a matter of law, of which we will treat more fully in disposing of that point. Those interested in proximate cause may consult Leek v. Dillard, Mo.App., 304 S.W.2d 60, 65-66 (10-12), and Phillips v. Stockman, Mo.App., 351 S.W.2d 464, 473-474(12-14). Suffice it to say here that, as in plaintiffs’ cited case of Davis v. Howell, 324 Mo. 1227, 1231-1232, 27 S.W.2d 13, 15, and in our case of Leek v. Dillard, supra, 304 S.W.2d at 66 (13), we are of the opinion here that whether defendant’s failure to comply with statutory lighting requirements was a proximate cause of the collision involving plaintiffs’ decedent was for the jury. See also Taylor v. Silver King Oil & Gas Co., Mo.App., 203 S.W.2d 147, 154(1-5). So holding, we conclude that instant plaintiffs made a submissible case of actionable negligence.

Was plaintiffs’ decedent guilty of contributory negligence as a matter of law? Defendant’s argument runs along this line: Before reaching the point of impact, plaintiffs’ decedent had traveled up a gentle, uninterrupted incline for more than 270 feet with “an unobstructed view” ahead. He was charged with the continuous and inescapable duty to maintain a vigilant lookout ahead and laterally ahead [Stradford v. Bluefeather, Mo., 384 S.W.2d 541, 543(3); Thaller v. Skinner & Kennedy Co., Mo., 315 S.W.2d 124, 129 (4) ]; and, to satisfy and discharge that duty, he was required to look in such observant manner as to enable him to see what one in the exercise of the highest degree of care for the safety of himself and others could and should have seen under similar circumstances. Braun v. 'Hoff-meister, Mo., 366 S.W.2d 406, 408(3) ; Immekus v. Quigg, Mo.App., 406 S.W.2d 298, 301(4). When the Renault was purchased some two or three weeks prior to the accident, the headlights were functioning properly; and, there being no evidence to the contrary, it should be assumed (as indeed we do) that the headlights on the Renault were not below legal requirements, i.e., that on low beam they would have revealed persons and vehicles at a distance of not less than 100 feet ahead. Section 304.350; Brown v. Wooderson, Mo., 362 S.W.2d 525, 529(2), 99 A.L.R.2d 894; Cox v. Moore, Mo.App., 394 S.W.2d 65, 69(6); Allinson v. Missouri-Kansas-Texas R. Co., Mo.App. 347 S.W.2d 902, 906. With the brakes on the Renault “all right” and nothing wrong with its steering mechanism, plaintiffs’ decedent had “more than sufficient room” to have avoided any collision by swerving to his left if he had been “traveling within the speed limit” of 35 miles per hour and had maintained a proper lookout ahead. Yet, the Renault ran squarely into the rear end of the parked truck and left no tire or skid marks on the pavement. Ergo, plaintiffs’ decedent was guilty of contributory negligence as a matter of law.

To support the trial court’s acceptance of this argument, defendant relies principally upon Lemken v. Brooks Truck Lines, Inc., supra, characterized in his brief as presenting “an almost identical set of facts.” But, although the facts of that case and of the one at bar are similar in many respects, there are significant dissimilarities. Plaintiff Lemken ran into the rear end of a large enclosed trailer 8 feet wide and 12 feet 3 3/4 inches high. 322 S.W.2d at 804. Instant plaintiffs’ decedent ran under and into the rear end of a flat bed, which protruded 4 feet 4 1/2 inches beyond the rear wheels of the truck. In reviewing the facts in the Lemken case, the court noted that a photograph showed “the rear of the trailer to be dirty and dusty with some lighter spots on its surface” but that “\t\here was no evidence as to what effect the dirt and dust on the trailer’s rear had with respect to its visibility under the circumstances and conditions of the * * * case and we are unable to arrive at any conclusion in that respect favorable to plaintiff from the picture alone.” 322 S.W. 2d at 805. Plaintiff Lemken argued that one of the “unusual conditions” responsible for the collision was “the dirt on the rear of the trailer which also covered * * * the reflectors.” Answering, the court stated that “[t]he picture may show that the right reflector was dirty but, as noted heretofore, there was no evidence that the dirt and dust on the trailer’s rear caused the tráiler as such to blend with the night or to be obscure or invisible in the beam of headlights.” Furthermore, “[t]here was no evidence * * * that the asphalt surface [of the street], its color, or the presence or color of the mud and dirt thereon had any effect upon the failure of plaintiff to have seen the trailer in ample time to have avoided colliding with it.” 322 S.W.2d at 806-807. In the case at bar, there was evidence that the asphalt roadway was “gray,” that the “bed [of the truck] was covered with dirt” and was “about the same color” as the asphalt, and that the sod on the front end of the bed was rolled with the dirt on the outside, so that it too was about the same color. Three of plaintiffs’ witnesses testified in substance and effect that the parked truck was quite difficult to see, and one of those witnesses, mayhap as a mere coincidence, specifically stated that the parked truck “was blended with the night.” In this connection, see Taylor v. Silver King Oil & Gas Co., supra, 203 S.W.2d at 149, affirming a judgment for plaintiff, where there was evidence that “on account of road dust or dirt on the [allegedly unlighted] truck it blended in color with the pavement”; Haley v. Edwards, Mo., 276 S.W.2d 153, 159, affirming a judgment for plaintiff, where, as emphasized in Lemken, supra [322 S.W.2d at 807], there was testimony that the “dirty gray” color of the unlighted parked truck made it difficult to see; and Beaver v. Wilhelm, Mo.App., 321 S.W.2d 1, 2, affirming a judgment for plaintiff, where the unlighted parked truck “was light gray or tan in color, was splattered with plaster, and very dirty.”

Since plaintiffs’ decedent ran squarely under and into the rear end of the parked truck and there was no indication that he had turned to his left as would have been the instinctive reaction of one cognizant of impending disaster [cf. Foster v. Sacco, Mo.App., 343 S.W.2d 171, 176], it is reasonable to believe that he did not see the truck in time to have turned. However, that does not, in and of itself, compel the conclusion that he was contributorily negligent as a matter of law. Although we assume that the headlights on the Renault were not below legal requirements in that generally under prevailing conditions they would have revealed persons and vehicles at a distance of not less than 100 feet ahead [Section 304.350], our concern here must be as to the distance at which plaintiffs’ decedent, in the exercise of the highest degree of care, could and should have seen defendant’s parked truck under the circumstances then and there existing. Smith v. Producers Cold Storage Co., Mo.App., 128 S.W.2d 299, 303(3); Casto v. Railway Express Co., supra, 219 S.W.2d at 281. The duty to maintain a vigilant lookout charged him with having seen “what looking would have revealed.” And he would not necessarily have been guilty of contributory negligence as a matter of law solely by reason of the fact (if so) that, as he approached the parked truck, he was driving at such speed that he could not have stopped within the distance the headlights on the Renault would have revealed the truck under then-existing circumstances. Haley v. Edwards, supra, 276 S.W.2d at 158(1); Parsons v. Noel, Mo., 271 S.W.2d 543, 547(5); Johnson v. Lee Way Motor Freight, Inc., Mo., 261 S.W.2d 95, 98(2).

Nor must it inevitably follow, as defendant suggests in his argument, that, since the Renault ran squarely under and into the rear of the parked truck and left no tire marks on the asphalt, plaintiffs’ decedent “apparently did not see the truck * * * until the moment of impact, if he saw it at that time.” For, if he was driving at the maximum lawful speed of 35 miles per hour (and we have no reason or right to assume that he was driving faster, Snider v. King, Mo.App., 344 S.W.2d 265, 277), he would have been moving 51.33 feet per second; and, during the reaction time of three-fourths second assumed in the absence of evidence on this subject [Roach v. Lacho, Mo., 402 S.W.2d 344, 350(10); Koogler v. Mound City Cab Co., Mo., 349 5.W.2d 233, 237(6)], he would have traveled 38.5 feet. In a number of instances, surviving plaintiffs who admittedly did not see a parked vehicle even that far ahead have been held not contributorily negligent as a matter of law.

Opposing counsel have much to say concerning the presumption that a decedent was not guilty of negligence where there was no eyewitness or direct evidence of conduct indicating negligence. Lyon v. Southard, Mo., 323 S.W.2d 785, 788(4); Meier v. Moreland, Mo., 406 S.W.2d 97, 100(2); Keeney v. Callow, Mo., 349 S.W. 2d 75, 80(8, 9). Of course there is, as instant defendant underscores, no room for the presumption in situations where, as in defendant’s case of Justice v. Malin, Mo., 336 S.W.2d 77, 81(3), plaintiff’s evidence, standing alone and unexplained, convicted decedent of negligence as a matter of law (in that instance of driving on the wrong side of the road), or where, as in defendant’s cases of Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89, Burge v. Wabash R. Co., 244 Mo. 76, 148 S.W. 925, and Tetwiler v. St. Louis, I. M. & S. Ry. Co., 242 Mo. 178, 184, 194, 145 S.W. 780, 781, 784, there were eyewitnesses or direct evidence of decedent’s conduct, or where, as in defendant’s case of Carlson v. Atchison, T. & S. F. Ry. Co., Mo., 187 S.W. 842, 844, the physical facts conclusively established defendant’s contributory negligence as a matter of law. But nothing in the record brings the case at bar within any of those exceptions.

Furthermore, instant plaintiffs adduced evidence that their decedent obtained his driver’s license the day after his sixteenth birthday; that, during the period of about fifteen months from that date to the time of his tragedy, he had not been involved “in any accident or traffic violation”; and that “he was a very careful driver.” There is authority for the proposition that, in the absence of eyewitnesses to an accident, proof of the ordinarily careful habits of the decedent is permitted as tending to prove his freedom from contributory negligence, provided that such evidence be not too remote as to time, place and circumstances. Gerhard v. Terminal R. Ass’n. of St. Louis, Mo. (banc), 299 S.W. 2d 866, 872(12); Elliott v. Elgin, J. & E. Ry. Co., 325 Ill.App. 161, 59 N.E.2d 486, 492-493(9); 25A C.J.S. Death § 84, pp. 833-834. We find it unnecessary to express any opinion as to the legal validity of that proposition, for the evidence concerning the habits and record of instant plaintiffs’ decedent was received without objection or motion to strike and, therefore, its probative worth and effect were for the jury. Fellows v. Farmer, Mo.App., 379 S.W.2d 842, 846(2), and cases there collected in note 3.

In the final analysis, the issue as to whether plaintiffs’ decedent was con-tributorily negligent as a matter of law must be determined on the particular facts and circumstances reflected by the transcript before us [Moore v. Eden, Mo., 405 S.W.2d 910, 916(7); Johnson v. Lee Way Motor Freight, Inc., supra, 261 S.W.2d at 98; Harding v. Peterson, Mo.App., 227 S.W.2d 88, 90(1)] ; and that issue was for the jury unless, upon the evidence and all favorable inferences deducible therefrom when viewed in the light most beneficial to plaintiffs, reasonable minds could not fairly differ as to decedent’s negligence. Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W. 2d 498, 500 (3, 4) ; Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14, 19(1); Pender v. Foeste, Mo., 329 S.W.2d 656, 659 (3); Jones v. Fritz, Mo.App., 353 S.W.2d 393, 399(11). Being unable so to say “‘beyond peradventure of reasonable controversy that the record conclusively convicts’ ” decedent of negligence [Parsons v. Noel, supra, 271 S.W.2d at 547; Mayne v. May Stem Furniture Co., Mo.App., 21 S.W. 2d 211, 213(5)], it follows that the action of the learned trial judge in submitting the issue of contributory negligence to the jury in the first instance was proper and that his subsequent action in sustaining defendant’s motion for new trial on the ground that “plaintiffs’ decedent was guilty of contributory negligence as a matter of law” cannot stand.

Accordingly, it is the judgment of this court-(a) that the order of the Circuit Court of Jasper County entered on July 8, 1966, sustaining defendant’s motion for new trial be set aside and for naught held, and (b) that the cause be remanded to said circuit court with directions to reinstate and reenter as of April 5, 1966, the judgment for plaintiffs in the sum of $12,500 originally entered on that date upon the jury verdict then returned.

HOGAN and TITUS, JJ., concur.

      .Wiber v. Mana, Mo., 356 S.W.2d 88, 92 (4); Cotton v. Ship-By-Truck Co., 337 Mo. 270, 85 S.W.2d 80, 85(10); Leek v. Dillard, Mo.App„ 304 S.W.2d 60, 64(6); Ensminger v. Stout, Mo.App., 287 S.W. 2d 400, 405(3); Nickels v. Borgmeyer, Mo.App., 258 S.W.2d 267, 276(2); Roux v. Silver King Oil & Gas Co., Mo.App., 244 S.W.2d 411, 414; Casto v. Rah-way Express Co., Mo.App., 219 S.W.2d 276, 281(7); Taylor v. Silver King Oil & Gas Co., Mo.App., 203 S.W.2d 147, 154 (6); Smith v. Producers Cold Storage Co., Mo.App., 128 S.W.2d 299, 303(2) ; Ridenour v. Oklahoma Contracting Co., Mo.App., 45 S.W.2d 108, 110-111(1).

      . “ ‘When lighted lamps are required’ means at any tíme from a half-hour after sunset to a half-hour before sunrise and at any other time when there is not sufficient light to render clearly discernible persons and vehicles on the highway at a distance of five hundred feet ahead.” Section 304.270(9).

      . This statute, as amended, now requires “at least two rear lamps” so mounted and exhibiting such red light plainly visible from the same distance to the rear. Laws 1965, p. 494.

      . Prior to amendment [Laws 1961, p. 497], Section 304.450 consisted of a single unnumbered paragraph which included the following exception: “* * * provided, that local authorities in cities, towns and villages may provide by ordinance that no lights need be displayed upon any such vehicle [parked or stopped upon a highway or shoulder adjacent thereto] when stopped or parked in accordance with local parking regulations upon a highway where there is sufficient light to reveal any person or object within a distánce of five hundred feet upon such highway.” See the discussion pertaining to Sections 304.310, 304.380 and 304.450 in Wiber v. Mana, supra note 1, 356 S.W.2d at 90-91, dealing with a vehicular collision occurring on November 4, 1959.

      . Smith v. Kansas City Public Service Co., 328 Mo. 979, 991, 43 S.W.2d 548, 553(7); Frandeka v. St. Louis Public Service Co., Mo., 234 S.W.2d 540, 546 (5); Combellick v. Rooks, Mo. (banc), 401 S.W.2d 460, 463; Hinrichs v. Young, Mo., 403 S.W.2<3 642, 645(2).

      . Haley v. Edwards, Mo., 276 S.W.2d 153, 158, 159 (pltf., traveling 40 mph, first saw truck when 25-30' from it); Beaver v. Wilhelm, Mo.App., 321 S.W.2d 1, 2, 3 (pltf., traveling 25-30 mph, never saw truck prior to collision); Casto v. Railway Express Co., supra note 1, 219 S.W.2d at 278 (pltf’s. driver, traveling 20-25 mph, as “a guess” saw truck when 2' from it and collision occurred “just momentarily”); Smith v. Producers Cold Storage Co., supra note 1, 128 S.W.2d at 301 (pltf’s. driver saw truck when he was “right upon” it — 15'-25' distant) ; McGrory v. Thurnau, Mo.App., 84 S.W. 2d 147, 148, 149 (pltf., traveling 15 mph, saw automobile when 6' from it). See also Johnson v. Lee Way Motor Freight, Inc., Mo., 261 S.W.2d 95, 97 (pltf., traveling 40 mph, saw truck 30-35' distant as pltf. emerged from patch of fog).


author: DOERNER, Commissioner.

text:
    CALVIN F. FEUTZ FUNERAL HOME, INC., a Corporation, Claimant-Appellant, v. ESTATE of Hilda WERNER, Deceased, Defendant-Respondent.
    No. 32600.
    St. Louis Court of Appeals. Missouri.
    May 16, 1967.
    Motion for Rehearing, or for Transfer to Supreme Court Denied June 14, 1967.
    Application to Transfer Denied July 10, 1967.

      Suelthaus & Krueger, W. W. Sleater, St. Louis, for claimant-appellant.
    Michael J. Ebeling, Clayton, for defendant-respondent.
   DOERNER, Commissioner.

This appeal involves the claim of Calvin F. Feutz Funeral Home, Inc., in the sum of $1,719.59 for services rendered in conducting the decedent’s funeral. The Probate Court of St. Louis County, in which the claim was filed, made an allowance of $1,000. On claimant’s appeal the Circuit Court of that county allowed the claim in the amount of $1250, and claimant brought this appeal.

The case was tried in the Circuit Court on the following agreed statement of facts:

“Hilda L. Werner was buried on or about October 21,1963, by Calvin F. Feutz Funeral Home; the funeral in question was ordered by Lewis J. Werner, Executor of the Estate, and also the sole heir of the Estate-and a brother of the deceased ; he specified the type of funeral to be ordered; the total cost as billed is $1,719.59, and the average funeral at the time in question, approximately one year ago, from the Calvin Feutz Funeral Home ranged from $1,400 to $2,000; the Calvin Feutz Funeral Home presented a claim in the Estate of Hilda L. Werner, to the Executor, and the Executor waived on the ‘demand for $1,719.59,’ and consented to the charges; thereupon, it was presented to the Probate Court, at which time, after consultation and stipulation of facts, the . probate judge made an allowance of $1,000.00 as a first-class claim.”

Claimant’s first point, as best we understand its brief, concerns the power and authority of the Probate Court to pass on claims for funeral services. Claimant appears to contend that because the funeral services were here ordered and specified by Werner the Probate Court could exercise no discretion in the matter and was required to allow its claim for the full amount sought. With that view of the power and authority of the Probate Court we cannot agree. Constitutional authority for the establishment and jurisdiction of the Probate Court is found in Section 16, Article V, Constitution of Missouri, 1945, V.A.M.S., which as here pertinent, provides that there shall be a Probate Court in each county, with jurisdiction of all matters pertaining to probate business, to granting of letters testamentary and of administration, and of settling the accounts of executors and administrators. “Probate business” as used in the Constitution and as echoed in the appropriate statute, Section 472.020, RSMo 1959, V.A.M.S., has been held to include the collecting and marshalling of the decedent’s assets, the allowance and payment of claims, and the proper distribution of the remainder of the estate to the persons entitled thereto. First National Bank of Kansas City v. Mercantile Bank & Trust Co., Mo., 376 S.W.2d 164; North v. Hawkinson, Mo., 324 S.W.2d 733.

Jurisdiction to pass on claims is specifically given to the Probate Court by § 473.403(1), which reads:

“Except as provided in subsections 2 and 3 hereof (not here pertinent), no claimant is entitled to payment unless his claim has been duly filed and allowed by the court. Upon the adjudication of any claim the court shall allow it in whole or in part, or disallow it. The order allowing the claim has the effect of a judgment and bears interest at the legal rate, unless the claim provides for a different rate in which case the judgment shall be rendered accordingly.”

It is readily apparent from that section that the Probate Court not only has the power but it is its duty to pass on any claim presented for allowance against a decedent’s estate, and to allow it in whole or in part, or disallow it, according to its validity and merits. In this respect a claim for funeral services stands on no different footing than any other claim. In fact, it may be contended that such a claim should perhaps invite a closer scrutiny by the court, for while debts, medical expenses, servant’s wages and similar matters are obligations usually controlled and incurred by the decedent during his lifetime, ordinarily the arrangements for his funeral are made by another after his death and are classified as first class claims. § 473.397. Of course, it must be recognized that for reasons of health a burial cannot be delayed indefinitely, nor until the estate is opened and an allowance judicially obtained for such services; that sentiment and a proper respect for the dead require that the burial be conducted with propriety and decency; and that normally the undertaker who furnishes such services should be entitled to recompense from the decedent’s estate. Cape Girardeau Bell Tel. Co. v. Hamil, 160 Mo.App. 521, 140 S.W. 951; Hayden v. Maher, 67 Mo.App. 434. This is not to say, however, as claimant seems to contend, that the Probate Court must approve and allow without question any and every claim for funeral services, regardless of its amount. To follow such a course would be a relinquishment and abdication by the court of its powers and duties.

What, then, is the criterion to be applied by the court in determining the amount to be allowed ? As the very authorities cited by claimant state, the amount for which a claim for funeral expenses should be allowed must be determined by the familiar rule of reason. Wagoner Undertaking Co. v. Jones, 134 Mo.App. 101, 114 S.W. 1049 ; 34 C.J.S. Executors and Administrators § 384, pp. 137, 138. What is or is not a reasonable amount must, of course, be determined in the light of the facts and circumstances in each case. The factors which must be considered, as we recognized in the Wagoner case, are two-fold: (1) whether the price charged is the reasonable market value in the community for the articles furnished and the services performed; and (2), whether the amount claimant seeks to have allowed is commensurate with the value of the decedent’s estate and with what we there referred to as his position in life. We are not unmindful of the problem which may confront an undertaker under that rule, since usually an estate has not been opened and its value may be unknown when arrangements are made for a decedent’s funeral. But as suggested in Hayden v. Maher, supra, he may protect himself by a guarantee or other promise of payment from the one who requests his services.

Claimant appears to recognize the guidelines of reasonableness laid down in the Wagoner case for it asserts, somewhat inconsistently with its first point, that its claim is reasonable because the facts stipulated show that the amount of its claim is within the average range of the cost of funerals in the area; and that we, “ * * * should take judicial knowledge of the fact that the deceased lived at 418 Polo Drive in Clayton, one of the nicest exclusive neighborhoods in the area, with high-priced homes. * * * ” In the first place, the facts stipulated do not show that charges made for the articles furnished and services performed in connection with the decedent’s burial were the reasonable market value for such articles and services. That certainly would not be proven by the fact that the “average” funeral from claimant’s establishment at the time in question “ranged” (a contradiction in terms) from $1400 to $2000. Nor can we take judicial notice that the decedent lived at a particular address, much less the character of the neighborhood in which she resided, for such facts are not matters of either judicial or common knowledge, Bone v. General Motors Corp., Mo., 322 S.W.2d 916, 71 A.L.R.2d 361. Such facts, if true, should have been stipulated or proven, for we may consider evidence of that character only when it appears in the transcript. Moreover, of even greater importance, the stipulation does not touch upon the second element of the rule. There are no facts stipulated or proven regarding the size or value of the decedent’s estate, and for aught that appears in the transcript before us it may barely exceed the amount of $1250 for which the Circuit Court allowed claimant’s claim. Under this state of the record we cannot say that claimant’s claim for $1719.59 was reasonable and should have been allowed in full.

Claimant’s final point is that the allowance made was not based upon any competent evidence and that the court’s action in allowing it for only $1250 “ * * * is illegal, unlawful, arbitrary, capricious and the result of bias and prejudice.” Such harsh language stems from what we have pointed out is a misconception of the role of the court to which a claim for funeral services is presented. As we have sought to make clear, the function of the Probate Court is not that of a rubberstamp, and it is not required to automatically approve in full any and every claim for funeral services, regardless of the pertinent facts. The burden is on the claimant who presents such a claim to show that it is reasonable. The court undoubtedly had the inventory of the estate before it when it made the allowance and gave consideration to such information when it determined the amount it allowed. On appeal, the presumption is that the trial court’s decision was correct, and the burden is on the appellant affirmatively to show error as a condition precedent to reversal, James v. James, Mo., 248 S.W.2d 623, or that we should reach a different result. This the claimant has not done.

The judgment is therefore affirmed.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of this court.

Accordingly, judgment is affirmed.

ANDERSON, P. J., RUDDY, J., and THEODORE McMILLIAN, Special Judge, concur.

      I. We need not concern ourselves with the power and authority of the Circuit Court for its jurisdiction of an appeal from the Probate Court is derivative, and is no greater and no less than the Probate Court itself might have exercised. In re Franz’ Estate, Mo., 372 S.W.2d 885; State ex rel. Kinealy v. Hostetter, 340 Mo. 965, 104 S.W.2d 303.