text:
    Hugh CLEMMONS, Lawrence Higdon, E. W. Agger, Trustees for the Higdon Christian Church, Plaintiffs-Respondents, v. R. P. SMITH, Otto Combs, and Ethel Combs, Alleged Trustees for the Congregation of the Disciples of Christ Church at Higdon, Missouri, The Missouri Association of Christian Churches, Inc., and Higdon Christian Cemetery Association (Disciples of Christ), Defendants-Appellants.
    No. 50318.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.
    R. P. Smith, Cape Girardeau, for appellants.
    Roberts & Roberts, by Raymond R. Roberts, Farmington, for respondents.
   HENRY J. WESTHUES, Special Commissioner.

This is an action to quiet title to certain real estate located in Madison County, Missouri. Plaintiffs-respondents are Hugh Clemmons, Lawrence Higdon, and E. W. Agger, Trustees for the Higdon Christian Church. Defendants-appcllants are R. P. Smith, Otto Combs, and Ethel Combs, Alleged Trustees for the Congregation of Disciples of Christ Church at Higdon and The Missouri Association of Christian Churches, Inc., a corporation, and Higdon Christian Cemetery Association (Disciples of Christ).

Plaintiff trustees claim title by virtue of a deed executed in the year 1890 whereby the property in question was conveyed to certain named trustees “in trust for the use and benefit of the Congregation of Deciples of Christ at Higdon Chapel Missouri and their successors in office.” It is admitted that the above deed of 1890 is the common source of title.

The defendant Missouri Association of Christian Churches, Inc., claims title by virtue of a deed executed by the defendant trustees who claim they represented the congregation at Higdon.

A trial resulted in a decree for plaintiffs on the theory that the deed executed by the defendant trustees was a nullity. Defendants appealed to this court. Title to real estate being involved, jurisdiction is vested in this court.

The evidence disclosed that the Higdon congregation was not large and the members attending Sunday services numbered about SO. A small building was used as a ■church edifice until about 1958. The evidence does not reveal any dissension .among the members until a short time prior to 19SS when the congregation voted to remodel the old church building. Repairing the old building did not prove to be satisfactory. In 1955, the congregation voted to ■construct a new church building. The old location was deemed to be inadequate and some of the space surrounding the building 'had been used for a cemetery. The new church was constructed by voluntary labor •donated by the members of the congregation. Material was purchased and a furnace was installed. These two items were .about all of the expense the congregation incurred.

It is evident that the question of building a new church was the cause of the dissension. When the basement of the new building was completed, it and the old church were both used in connection with church activities. Since the building was constructed by voluntary labor, progress was rather slow. It was about two or three years before the building was completed. In 1958, the building was completed and much of the equipment in the old building was transferred to the new church. Thereafter, the old church building was used, for the most part, as a storeroom. However, a small group refused to go to the new church building, claiming that those going to the new building had in fact abandoned some of the practices of faith of the “Disciples of Christ”; that the new group was not “De-ciples of Christ” but the members thereof were known as “Independent Christian Church.” This claim of the defendants, that is, the defendant trustees, was not supported by the evidence. The defendant Missouri Association of Christian Churches, Inc., made no such claim. A number of ministers who were connected with that corporation, in testifying, explained the difference in the various groups, that is, the “cooperative group” and the “independent group.”

Dr. Lester Richman, General Secretary of the Missouri Association of Christian Churches, Inc., testified as follows:

“Q Mr. Richman, there has been a discussion here with reference to the two different groups or possibility of two different groups, one referred to as the Christian Church Disciples of Christ and the other as the Independent Christian Churches. Are you familiar with those two groups?
“A Yes.
“Q Can you explain to the Court the difference between the two groups?
“A Well, the Christian Church Disciples of Christ, those who belong to this group, co-operate through district, state, and national organizations and make reports regularly to what we call the Yearbook of the International Convention of Christian Churches Disciples of Christ. Those churches which we call Christian Churches Independent do not co-operate through these organizations. Neither do they make a, at least most of them do not make a report, voluntary report to the Yearbook of the International Convention of Christian Churches Disciples of Christ. They have a separate book which they call a Directory of the Ministry, Nondenominational, I believe this is its official title.”

On cross-examination, the following testimony was elicited from Dr. Richman:

“Q * * * Now, Dr., I’m going to read you a definition and I want to ask you if you agree with it. In its generic sense the term, ‘Christian Church’ is the phrase we are defining, in its generic sense the term embraces all those who profess the religion of Jesus Christ. Specifically the term may, according to the context, identify a certain great religious denomination and numerous congregations known interchangeably as the Christian Church, the Church of Christ and Disciples of Christ, do you agree with that ?
“A Historically this would be correct.
“Q And it is interchangeably in that?
“A Yes.
* * * * * *
“Q Dr., when was the general or the Missouri Association of Christian Churches formed?
“A Well, the specific name as now used was formed about 1958; however its predecessor the Missouri Christian Missionary Society was started in May of about 1864 in Chillicothe, Missouri. The Missouri Association of Christian Churches is now one organization which encompasses several different ones which weren’t working before so as to do — ■
“Q It’s a charitable corporation?
“A (Witness nodding his head up and down.)
“Q Is it incorporated ?
“A It is incorporated.”

Other ministers testified substantially to the same effect, that is, that the terms “Christian Church” and “Disciples of Christ” are terms that may be used interchangeably. No substantial evidence was offered that there had been any change in the practices of faith in the church at Higdon since its organization to the time of the trial.

In May, 1962, five or six people gathered at the home of Etta McClarney at Knob Lick, St. Francois County, Missouri. Without any notice to anyone except these persons, the defendant trustees, R. P. Smith, Otto Combs, and Ethel Combs, were elected as alleged trustees of the Pligdon congregation. These so-called trustees in turn executed the deed purporting to convey the real estate in question to the defendant corporation.

The root of the dissension may be found in the evidence given by defendant. Otto Combs. He testified that he had been a member of the Higdon church for many years; that he was a deacon when the congregation voted to remodel the old church. However, he was not present when the vote was taken to construct a new building. At that time Mr. Combs was elected as a trustee. The duties of a trustee apparently-disturbed Mr. Combs, Note his evidence:

“A Well, they was wanting me to sign a note for the new building. I was, uh, they appointed me or elected me as something, a Trustee.
“Q All right.
“A And I wasn’t present when they appointed me a Trustee and wasn’t con-•suited or anything about the new building hut they did, did want me to sign a note for a mortgage on the new building. And I told them I guessed I’d have to resign. I didn’t put myself in, they put me in there. And we had quite a conversation at that particular time.”

On cross-examination, Otto Combs gave the following testimony:

“Q All right. Now, what changes have taken place in the basic beliefs of the people of the Higdon Christian Church since the building has changed ?
“A Well, I guess they all believe in the Bible; if they don’t they should, if they don’t want to go to hell.
“Q Well, can you think of any change that has taken place? You said there was a change. What change ?
“A Well, they just got away from the old church that we was used to.
“Q All right. What organizations or what groups have been controlling the Higdon Christian Church since 1930’s ?
“A Well, it, uh, that little church has never been like a big, modern church in the city. It’s been ruled by very poor people and all the way down through the history and I’m just trying to defend what my forefathers and everybody else that founded church to keep it Disciple of Christ like the deed calls for at right in tire Courthouse at Fredericktcwn and everything.
“Q Thank you. 1 think that’s very admirable, sir, and I want you to defend it. But I want you to tell me how it’s changed? Now, we’ve changed the building?
“A Well, people maybe hasn’t ■changed, I don’t know.
“Q Well, has their practices or their faith changed in any way ?
“A Well, I don’t guess there’s too much change, no.
“Q All right, sir. Now, you had a meeting back in May of 1962 in which you organized a new church, didn’t you? Well, you elected Trustees, didn’t you?
“A Yeah.
“Q And lets see if there was anybody — Was there anybody present there besides members of your family and

Mrs. McClarney and Mrs. Penberthy?

“A Nope.”

It is apparent that the deed executed by the defendants, purporting to represent the Higdon congregation, is a nullity.

The plaintiff trustees, as the evidence showed, are the true trustees of the Higdon Christian Church. It is immaterial whether the church be referred to as the “Christian Church” or “The Disciples of Christ Church” or as “Independent Christian Church.” The evidence conclusively showed that the members of the congregation at the time of trial were of the same faith as they were in the year 1890 when the property was deeded to the congregation. There was no division within the meaning of the law so as to justify a forfeiture. 76 C.J.S. Religious Societies § 70, pp. 847-849.

The decree of the. trial court was for the right parties and should be and it is hereby affirmed.

PER CURIAM.

The foregoing opinion by WESTHUES, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur except HENLEY, J., not sitting.


source: Caselaw Access Project

author: LEEDY, Judge.

license: Public Domain

text:
      Joy BOYDSTON, Respondent, v. William L. BURTON and Dale Boydston, Appellants.
    No. 48917.
    Supreme Court of Missouri, Division No. 2.
    May 15, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied June 8, 1964.

      Thomas A Sweeny, Kansas City, for appellant Dale Boydston, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
    Thomas E. Deacy, Edward W. Mullen, Deacy & Deacy, Kansas City, for appellant Burton.
    Hale Houts, J. D. James, Thad C. Mc-Canse, Houts, James, Randall, Hogsett & Me Canse, Kansas City, for respondent.
   LEEDY, Judge.

Action by Joy Boydston for damages for personal injuries; trial to a jury resulted in a verdict and judgment for the plaintiff and against defendants William L. Burton and Dale Boydston in the sum of $60,000, from which judgment the named defendants prosecute separate appeals.

Plaintiff was a passenger in the front seat of a Chevrolet owned and being driven by her 19-year-old brother-in-law, defendant Dale Boydston. This car was involved in a head-on collision with a Volkswagen being driven by defendant Burton. The driver of a third vehicle (Lester E. Tins-ley) was joined as a party defendant, but at the close of plaintiff’s evidence the court sustained his motion for a directed verdict. That action is not challenged, so Tinsley’s role as a defendant has passed out of the case.

The collision occurred about 11:30 a. m., on Sunday, March 22, 1959, on a graveled county road in Platte County known as the Hampton road. The weather was clear and the road dry. At the place in question the road runs in a generally east-west direction. It was described in the evidence as being hilly and “curvy,” conditions verified by the photographic exhibits. The Chevrolet in which plaintiff was riding was eastbound, and the Volkswagen driven by Burton was traveling west. The Tinsley car (a Chevrolet) was following the Burton Volkswagen at a distance of about three car lengths. The collision occurred at or near the crest of a hill, and the point of impact on each car was from about the center to the left side of the front.

Plaintiff’s case was submitted as against the defendants severally by separate verdict-directing instructions (Nos. 2 and 3) which instructions hypothesized negligence on the part of each defendant in failing to keep a reasonably careful and vigilant lookout for approaching vehicles, and, disjunctively, failure to drive upon the right half of the roadway. As a part of the submission of the first of the foregoing negligent omissions (failure to keep a lookout), instruction No. 3 (having to do with Boydston alone) included the further hypothesis, in the conjunctive, “that in the exercise of the highest degree of care he could and should have seen, the Volkswagen approaching in time to have swerved to the right side of the travelled portion of the road and avoided the collision * * By instruction No. 4 the jury was instructed as to the situation in which it would be its duty to return a verdict against both defendants (in substance, that if the jury found “that the negligence, if any, of defendant Dale Boydston and the negligence, if any, of defendant William Burton, directly concurred, combined and contributed to cause” plaintiff’s injuries, etc.).

The points relied on by Burton are: (1) That the evidence showed plaintiff was guilty of contributory negligence as a matter of law; (2) that certain photographs were improperly received in evidence; (3) error in the giving of plaintiff’s instruction No. 4; and (4) that the verdict is grossly excessive in amount.

Boydston’s assignments are: (1) That the evidence was insufficient to submit either the hypothesis that he was driving his car on the wrong side of the road, or that he failed to keep a lookout; and (2) the excessiveness of the verdict.

Gerald Winters, a highway patrolman, reached the scene within thirty minutes after the collision occurred, and before the ambulance arrived. He found the Boydston and Burton vehicles “were not right up against each other, but they were very close.” There was debris (broken pieces of glass, metal, oil and water) in the road under the vehicles (this point being about 20 or 30 feet east of the crest of the hill). In general, this debris was on the south half of the road (i. e., Boydston’s side), including, specifically, that under the Volkswagen. At this point the traveled portion of the road (that having gravel on it) was found to measure 24 feet in width. There were narrow shoulders (about 2 feet wide) and a grader ditch on each side. There was no marked center line of the road, and nothing to mark the edges, but “like most gravel roads, the edges kind of wavered back and forth a little bit,” so that if measured at one particular place it might be a foot or so wider than at another particular spot Estimates of their respective speeds as given to the patrolman were: Boydston, 35 m. p. h.; Burton, 35 to 40 m. p. h. Boyds-ton stated to the patrolman (and it was admitted against him alone) : “We came up over the hill and it looked like he was over on my side, and I put on my brakes and then we hit.” Burton’s statement made at the scene (and its admission similarly limited) was: “I was driving west and this car was driving east, and maybe we were both driving in the middle of the road, I don’t know, it all happened so fast, I never did see the car behind me.”

The highway patrolman described the crest as being “rather gradual * * * with the road coming up from both sides at an angle to the crest.” He, nevertheless, estimated the grade of the road to be 10% on the west side of the crest (from which side the Boydston Chevrolet approached), and 15 to 20% on the east side of said crest (from which latter direction the Burton Volkswagen approached), but he made no measurements as to visibility of travelers in the vicinity of the crest.

Boydston’s car laid down skid marks 61 feet long, and the Burton car laid down skid marks 41 feet long, measured from the point of collision west and east, respectively, thus indicating the cars were about 100 feet apart when they started to skid. Boydston’s left (or north) tire mark was 11 feet, 8 inches north of the south edge of the traveled portion of the road. Burton’s left (or south) tire mark was 10 feet north of the south edge of the traveled portion of the road.

Plaintiff testified that “maybe half a block” before they reached the crest of the hill,” and while driving at 30 to 40 miles per hour, her brother-in-law pointed out a house on the south side and adjacent to the road in which his parents had formerly lived, “and I had turned to look at the house, kind of like that [indicating] and then I turned back and we were coming over the hill then and the Volkswagen was there;” that as they came over the crest and ran into the Volkswagen there was at least “a car’s width” of space between the right side of the Boydston car and the south edge of the road, but her brother-in-law did not swerve. (Plaintiff thought she heard him say later that he “just hit the brakes and kind of froze.”)

Boydston’s attack upon the submissibility of the hypothesis that he failed to drive upon the right half of the road is based on the theory and assumption that plaintiff, “by her judicial statements,” placed him (Boydston) on the right side of the road, thus precluding her use of, or reliance upon the testimony of her witness Mrs. Tinsley “that Boydston was partially on each side of the road, not entirely on his wrong side of the center, and not entirely on his right side of the center.” Conversely, Burton’s contention that plaintiff was guilty of contributory negligence as a matter of law is based on (1) plaintiff’s own testimony to the effect (so he asserts) that Boydston was driving on the wrong side of the road not only when approaching the hillcrest in question, but also other hillcrests while traversing the mile and a half or two miles that they had been on the Hampton road, and (2) plaintiff’s admitted failure to make complaint or protest to Boydston so as to influence the situation for safety. While these two points are mutually exclusive, both are determinable upon a consideration of plaintiff’s own testimony. The further portions of her testimony relevant to both questions follow; first, that in reference to the position of Boydston’s car at the time she saw the Volkswagen and the collision:

“A. His left wheel, his driver’s side wheel was in the center track and his right wheel then was on south, he was in the center track on—
“Q. There was no — or was there a line—
“A. No.
“Q. ■ — black line marked down the center of the highway?
“A. No. When I am speaking of the center, I mean the center track.
“Q. Well, what part of the center track were the left wheels in?
“A. Right in—
“Q. What I am trying to find out is whether they were right in the center of the road [or?] on one side or the other of the center of the road.
“A. They were right in the center of the center track.
“Q. And then extended a car’s width, I take it, to the right of that?
“A. Yes.”

When she saw the Volkswagen and at the time of impact it was partially, but not completely over the “center track- — maybe half a car, one or two feet * * * he was over it a little.”

On cross-examination by counsel for Burton, plaintiff stated that during the mile and a half or two miles that they had been on the Hampton road, her brother-in-law had been driving at the same speed, approximately 30 to 40 miles per hour; that during that entire time “he had been driving with the left side of his car right at the center of the road * * * as far as I know,” and that she believed this continued “right up to and including the time of this accident;” that she believed “he had gone up all these other hills and down hills, and so forth, in the same manner that he approached this hill,” and that she made no protest or complaint to him about driving in that manner. She also agreed that “if his left •wheels were on the center line of the road, then the left side of his car, the fenders and the bumpers and so forth would extend out some four, six or eight inches, whatever the distance is, beyond that, beyond the wheels.”

Cross-examination by Boydston’s counsel developed the following:

“Q. Isn’t it true, Mrs. Boydston, that this collision was on Dale’s side of the road?
“A. It was from the center over to the south side, yes.
“Q. Was it on Dale’s side of the road? A. Yes. * * *
"Q. And isn’t it true, and don’t you know that your car was on your own side of the road?
“A. It was on the south half of the road, yes.
“Q. And I am talking about now the entire car, Joy.
“A. No. The left wheels were in the center track so that wouldn’t make it completely on the—
“Mr. James: Pardon me just a minute. I object to counsel interrupting the witness.
“Q. (By Mr. Sweeny) Go ahead. A. So that wouldn’t make it all on the right side of the road, but it was from, it started from the center of the left — or the right.
“Q. From the center? A. Center to the south.
“Q. To the south? A. Yes.
“Q. All right. Joy, would you say any part of Dale’s car was over the center ? A. Not to my knowledge, no.
“Q. And therefore the wheels were not directly at the hairline center point? Isn’t that true? [Objected to; overruled.]
“The Witness: What do you mean ?
“Q. I say, of course, there was no center line? A. No.
“Q. And the exact center would be about the width of a hair, you know, to really figure out where it would he, but aren’t you satisfied and aren’t you telling the jury, Joy, that Dale’s entire car was on the south side of the road at all times before this accident? [Objected to; overruled.]
“Q. (By Mr. Sweeny) The Judge says you should answer, Joy.
"A. Yes, it was on the south side of the road.
“Q. The entire car? A. Yes
“Q. And that is at all times before this accident? A. Yes.
“Q. And up to the time of the accident ? A. Yes.
“Q. And that is Dale’s own side of the road? A. Yes.”
The following occurred on rc-direct examination:
“Q. Now, Mr. Sweeny asked you about the position of Dale’s car in the road, and I believe you testified that the left side was in the center of this center path. A. Yes.
“Q. Where would that put it with reference to the traveled portion of the road as a whole? Was it directly in the center of the road? A. Yes. * * *
“Q. Was a portion of Dale’s car in the center of the road or not at the time of the impact? A. The left wheels.”

We fail to find anything in the photographs identifiable as a “center track,” so neither its location or the precise meaning of that term appears. The words “lane” and “path” were also used with reference to surface patterns in or upon the gravel, again without anything substantially identifying their nature, number or location. We hold the statements of plaintiff to the effect that Boydston’s car was on its own side of the road are not conclusively binding, and to the exclusion of other portions of her testimony and that of other witnesses from which the contrary would appear and support her theory of liability against each of said defendants. What was said by her in both connections obviously constituted estimates as to the position of the car. “[A] party is not conclusively bound by his mere estimate of time, speed or distance, or the position of an automobile or train at the time of an accident. His testimony in regard to such matters does not preclude him from relying upon the more favorable testimony of other witnesses in the case, unless the testimony of the other witnesses is inconsistent with his theory of the case or contrary to physical facts.” Smith v. Siercks, Mo., 277 S.W.2d 52R 525. Plaintiff’s theory throughout was that both defendants were negligent in the same respects, so there was no impingement upon the foregoing principle, insofar as inconsistency with her theory of the case is concerned. And as it is not contended that such other testimony was contrary to physical facts, it was for the jury to resolve the contradictions and inconsistencies in plaintiff’s own testimony in determining its weight and value. This it did in her favor, as indicated by the verdict. Besides the testimony of Mrs. Tinsley that Boydston was partially on each side of the road, Boydston himself admitted as much. Consequently, it was not error for the court to submit the hypothesis of Boydston’s negligent failure to drive on the right half of the road.

The ruling just made disposes of Burton’s contention that plaintiff was guilty of contributory negligence as a matter of law. That contention is based on that portion of plaintiff’s cross-examination by Burton’s counsel hereinabove set forth concerning the location of the Boydston car at and as it approached the point of collision. As we have seen, the whole of her testimony on that subject, even though contradictory and indefinite, amounted to estimates so that she was not bound by any one portion to the exclusion of the other. Under her testimony and estimates the jury could have legitimately found that Boydston’s car was partially over the center of the road only at the time plaintiff saw the Volkswagen and the collision. Consequently, the court did not err in submitting the question of plaintiff’s contributory negligence to the jury rather than declaring it as a matter of law.

Boydston also contends there was no evidence to justify the submission of failure on his part to keep a lookout. Without repeating, but bearing in mind that the evidence shows Boydston was admittedly driving at or near the center of the road as he approached and passed over the view-obstructing crest, it also appears from a further admission on his part that it would have been possible for him to have first seen the top of the Volkswagen emerging on the other side of the hill at a distance of 170 to 180 feet, but that he did not actually see it until he was only 100 to 150 feet from it. Accordingly, under the view of the evidence most favorable to plaintiff, it appears that after Boydston could have first seen the top of the approaching Volkswagen, he traversed a distance of as much as 80 feet without actually seeing it, although visible. From all the facts and circumstances surrounding the collision a jury could reasonably draw the inference that Boydston failed to keep a lookout, and hence the evidence warranted the submission of that issue.

Having held, contrary to Boydston’s contention, that plaintiff was not judicially committed to the theory that he (Boydston) was traveling on the right side of the road, we need not notice his attack on that portion of plaintiff’s verdict-directing instruction (No. 3) which is allegedly contradictory of such theory (now rejected) and therefore confusing to the jury.

Burton complains of the action of the court in admitting four photographs offered by Boydston. These were taken shortly before trial, and nearly two years after the accident. They were identified as showing the state of visibility or sight distances existing at the location in question, and open to the drivers as the Volkswagen came up to the crest of the hill and when the two cars were respectively 155 and 100 feet apart. Three were taken from the front seat and through the windshield of a 1955 Chevrolet, looking east down the road from near the crest of the hill. The fourth shows the reverse view; that is, it was taken through the windshield of a Volkswagen looking ahead (west) on the road as both cars approached the crest of the hill. In essence, the complaint is that the photographs, being posed, were not properly identified as representing the locations of the defendants’ vehicles at the time of or immediately preceding the accident, and that the court "erred in refusing to instruct the jury that said photographs were not intended to reflect the positions or locations of defendants’ automobiles,” as requested by Burton. Boydston, who identified the photographs, and who was present when they were taken, stated that they represented the approximate location of both cars on the day of the accident, but did not pretend to state their exact locations were shown. The position of the Volkswagen in the photograph appears to be farther to the south or wrong side of the road than as indicated by the oral testimony; but Boyd-ston himself stated that the Volkswagen’s location at the time of the accident was “possibly a foot” farther to the north than as shown by the photographs. Burton’s real complaint seems to be based on what the photographs show with respect to the car’s position laterally rather than longitudinally on the road, whereas their purpose was (as stated by counsel in offering them) to show the view that each driver would have, one of the other. The discrepancy, if such it was, in showing the car’s lateral position would not be of sufficient gravity to warrant their exclusion.

Burton renews the objection made by his counsel, as well as that of his co-defendant’s counsel, to the admission of plaintiff’s Exhibits 11 and 12, which were color transparencies showing the peg which had been driven into plaintiff’s leg for the purpose of attaching traction, and the traction device attached to it, on the ground “that the same were inflammatory and prejudicial, and that there was no showing that they accurately portrayed the matters they showed.” Plaintiff’s own testimony negates the second of the foregoing grounds, as these excerpts show: “Q. Mrs. Boydston, do these slides, Plaintiff’s Exhibits 11 and 12, fairly and accurately represent the traction and the way it was applied to your leg as you were there in the hospital ? A. Yes, it does. Q. Now there is red, some red material at the point where, this pin is inserted. I want you to state whether that is some kind of medicine, mercurochrome or something like that. A. Yes. Q. Rather than blood? A. Yes, it is. Q. You are not saying that is blood there, are you? A. This is taken a couple of weeks, a week to a week and a half afterwards, that’s merthiolate or something.” The point rests, then, on the first ground, i. e., that such transparencies were “inflammatory and prejudicial.” The two authorities cited are Faught v. Washam (Mo.), 329 S.W.2d 588, and Kickham v. Carter (Mo.), 314 S.W.2d 902. Faught does not interdict the use of color photographs or transparencies as such. It gave express1 approval (which we now reaffirm) to the use of colored photographs under the same limitations and restrictions as are applicable to black and white photographs. Inhering in the quality of the photographs there under scrutiny was that of a distinct want of natural color rendi-tioning both as to parts affected and background as well, and this was so pronounced or distorted as to make their probable inflammatory and prejudicial effect outweigh their probative value. Such is not the situation here. While no witness testified that the color renditioning is natural and not distorted, such is the fact, as disclosed upon the face of the transparencies themselves. The subject matter portrayed is not of such inflammatory or prejudicial nature as would justify the view that the court abused its discretion in admitting them. Kickham v. Carter, supra, is not apposite, it having dealt with an aggravated situation, for which the trial court had granted a new trial.

Burton assigns error in the giving of instruction No. 4 for the reason that the instruction “when read together with Boydston’s [sole cause] Instruction No. 15, is misleading, misdirects the jury, and permits the jury to find against defendant-appellant Burton upon a ground not pleaded by plaintiff nor submitted in plaintiff’s instructions.” In the very recent case of Coffman v. St. Louis-San Francisco Ry. Co., Mo., 378 S.W.2d 583, the same type of instructions as Nos. 4 and 15, referred to above, were given, and the same contentions with respect to them were urged on that appeal as are made in the present point. It is doubtful if two cases could bear greater similarity to each other, either as to the basic point made or the underlying reasons therefor. In this they are so closely akin as to be indistinguishable. The ruling in Coffman was adverse to the contention now made by Burton. It would serve no useful purpose to further develop the point because on the authority of Coffman, the present assignment would have to be, and it is, overruled.

The remaining question is that raised by defendants’ claim that the verdict is excessive. At the time the accident occurred plaintiff was 21 years old and had only recently returned to Platte County after spending nearly a year in Germany with her soldier husband. Previously, she had been in good health, and participated in athletics, having played basketball during all four of her high school years. She also did horseback riding and water skiing. When the cars collided, plaintiff was thrown forward in the car and she struck her head on the windshield, breaking it, and causing a cut on the forehead an inch to an inch and a half in length which bled profusely and required stitches. But her most serious injury was a comminuted fracture of the right acetabulum (or socket of the hip joint which receives the femur or thigh bone) and a dislocation of the head or ball of the femur or thigh bone as complicated by an associated partial paralysis of the sciatic nerve and the resulting foot drop referred to hereinafter.

Plaintiff’s orthopedic surgeon, Dr. Otis E. James, Jr., testified that his initial examination disclosed swelling and deformity of the right hip, numbness of the leg and foot with weakness and difficulty in raising the foot; that X-rays showed a fracture dislocation of the hip joint. After the dislocation was reduced by manipulating the hip and returning the ball of the thigh bone into the socket, X-rays showed fragments of the fractured socket had returned to fairly good alignment. The patient was then placed in skeletal traction, which involved drilling through and inserting a pin in the tibia in such a way that “we could attach a bow to it and then apply a strong amount [30 pounds] of traction in a longitudinal plane.” The displacement of the ball of the femur “probably wasn’t over a half to three quarters of an inch.” The sciatic nerve leaves the inside of the pelvis at about the level where the fracture and dislocation occurred, and Dr. James was of the opinion that hemorrhage from the fracture or possibly one of the bone fragments came in contact with the sciatic nerve or came close enough to bruise it or injure it. The patient remained in traction from four to six weeks. She was then about six months pregnant, and consultation was had with an obstetrician, who, while plaintiff was still in traction, watched and treated a kidney or bladder infection that had developed.

Dr. Forsythe, a neurosurgeon, was called in consultation on account of the patient’s loss of sensation in and inability to lift the foot. Upon examination, he concluded “that the hamstring muscles or the muscles in the back of the thigh were intact, the muscles that pull the foot toward the floor were intact but the muscles that lift the foot up off of the floor, as well as the toes off of the floor, were paralyzed. I felt at that time that Mrs. Boydston had a partial paralysis of the sciatic nerve, a division of the sciatic nerve known as the perineal nerve.” About a week before plaintiff left the hospital, Dr. Forsythe performed an exploratory operation to determine whether the nerve had been either severed, severely bruised, or stretched and torn. The leg was laid open on the side and at the back near the level of the knee, and the nerve exposed in that area. To the naked eye the nerve was all right, but tests by an electric device known as a stimulator showed the nerve failed to carry the stimulus or electric current applied to it; that is, it did not react or reacted poorly, which, in lay language, means she had a partial paralysis of the sciatic nerve, and this, in the doctor’s opinion, as a result of the collision. He was of the further opinion that her condition (as improved by reason of a subsequent tendon transfer operation a year later) is permanent, and “that she can probably expect no further return [of function] as far as the nerve itself is concerned.”

The subsequent tendon transfer operation just referred to was performed by Dr. James in May, 1960, in this manner: He ■exposed the tendon that goes to the great toe and transferred it from that region underneath the skin and through a second incision into the bone of the first metatarsal and reattached it. Having thereby elimin-nated the ability to raise the toe with one of its major tendons, it was necessary to fuse •or stiffen the joint of the great toe so that the remaining smaller muscle could still give it some ability to lift the toe. This was done by destroying the cartilaginous surfaces of the joint and transfixing it with a steel wire, which was removed in about six weeks. As a result, plaintiff has a permanent stiffening of the big toe, and also a permanent weakness or partial destruction of her ability to lift her big toe. Although benefited as a result of the operation by some increase in her ability to raise her right foot, it is less than in her left foot and will continue so to be during the rest of her life. The doctor was of the opinion that the conditions he found when he first saw her, and those described by him to the jury resulted from the collision; that the partial paralysis is permanent, and will probably remain essentially the same; that her weakness of dorsiflexion is permanent, making the foot and ankle less stable, and might possibly cause a wobbly ankle, and difficulty in wearing high heels as presently worn by women. There is some permanent limitation of rotation of the hip, which limitation may increase throughout her life because of what, in his opinion, appears to be a progressive type of traumatic arthritis developing in the hip joint. If this arthritis ■continues to progress (and the witness was of the opinion that it was “most likely” to do so), it will cause increased pain for the rest of her life not only in the hip, but also in her back, and, of course, a decrease in the motion of the joint. This can be corrected only by fusion of the hip joint (which would prevent her bending her leg at the hip joint) or insertion of an artificial cup in the hip socket; but if either of these operations is 100% successful, the patient is still left “crippled,” said the witness. At the time of trial he was not recommending any further surgical intervention. The femur itself was not fractured, only the socket, and those fractures had healed more than a year prior to trial. The doctor’s X-rays showed no evidence of any change or progression in the arthritic condition of the hip joint in the six months preceding November 16, 1960, and he had not seen or X-rayed her since that date.

For a period of about six months after leaving the hospital plaintiff wore a leather and metal leg brace extending from foot to hip. She testified that she used crutches the first two and a half months, and then after removing the brace and for a very brief time (a week or two) a cane. After she was able to walk without crutches or cane she had “a very definite limp,” as she expressed it. In July, some three and a half months after the accident, she gave birth to a normal child and it was a normal birth. After removing the brace and up until the time of trial, there was limitation of motion of the hip joint. She had 64 electrical and therapy treatments at her doctor’s office. This continued with decreasing frequency for about one year and did not help the foot drop although the therapy helped the hip motion. Thereafter, she had the operation which improved her ability to raise her right foot and enabled her to walk “fairly decent” but with a slight limp.

She testified that she had not used a crutch, cane or brace since about six months after the accident and that it was about one year after the accident before her back bothered her badly enough that she went to see a doctor about it. The operation performed on her foot corrected the foot drop sufficiently so that the foot does not drag and no longer causes her to stumble as it had before the operation. She had had kidney trouble prior to the accident as well as since the accident, and it is only if she moves her hip wrong or is on her feet too long or is out in the cold weather that her hip bothers her. When her hip bothers her, it is just a momentary pain that goes right away except that perhaps once a month or once every six weeks, the pain has not disappeared right away and has caused her to go to bed and use a heating pad; other than that, she is able to walk and get around. Two months after her baby was born (in September 1959) and about six months after the accident, she started taking care of her brother’s child as well as her own and continued to do so until she had the foot operation and after recovering from that, up until she got an office job. She was confined to the hospital four days with the foot operation and was on crutches with a cast on her foot for four to six weeks thereafter.

Before going to Germany plaintiff had been employed about a year and a half by TWA doing IBM work, and before that she did the same kind of work for BMA. In the fall before the trial she was employed from the last of October or first of November until the following January 20th at “Statistical Tabulating” earning $1.75 an hour for a 40-hour week. She testified she gave up this employment because she would be “real tired and real nervous” and wasn’t able to handle her infant daughter when she got home. There was no evidence that this condition was permanent, nor, for that matter, that it resulted directly from the accident. In any event, no claim for loss of earnings was submitted, and the same is true with respect to hospital and medical expenses or other elements of special damages.

Defendant Burton called a witness from the personnel department of the company for which plaintiff worked for about two months prior to January, 1961, who testified that plaintiff notified the company she was going to stop working temporarily due to pregnancy and that they still regarded her as a part-time employee subj ect to being rehired when she was over her pregnancy.

We have been cited to various cases in support of, and in opposition to the claim of excessiveness, all of which have been examined, but we have found none where the injuries are very closely comparable. The considerations affecting this question are so familiar and well established as to make it unnecessary to repeat them there, and we shall not do so. While plaintiff’s injuries are admittedly severe and permanent, we are of the opinion that their nature and extent as outlined above do not and cannot justify the amount awarded, and that such sum is excessive by at least $20,000. Therefore, if plaintiff will, within IS days, enter a remittitur of $20,000, the judgment will be affirmed in the sum of $40,000; otherwise, it will be reversed and the cause remanded.

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Isaiah STINSON, Appellant.
    No. 50378.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.

      Robert G. Duncan, Simon & Pierce, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
   BARRETT, Commissioner.

A jury found the appellant Isaiah Stin-son guilty of robbery in the first degree and fixed his punishment at ten years’ imprisonment.

Upon the trial of the case Isaiah was represented by court appointed counsel and likewise upon this appeal court appointed counsel has briefed and orally argued his cause. A notice of appeal was not timely filed (V.A.M.S. § 547.070; Sup.Ct. Rules 28.03, 28.04, V.A.M.R.), but upon Isaiah’s application a special order was made (V.A.M.S. § 547.090, Sup.Ct.Rule 28.07) and he was permitted to file the notice out of time. In addition, since he appeals as a poor person, a complete transcript has been furnished and filed in this court However, not only was there an untimely notice of appeal, there was no motion for a new trial (V.A.M.S. § 547.030; Sup.Ct. Rule 27.20(a)) and, therefore, many of the problems briefed and argued are not open questions in this court. State v. Parker, Mo., 310 S.W.2d 923; State v. Hurtt, Mo., 338 S.W.2d 876. The jury’s verdict was returned on January 29, 1963, and upon allocution and in counsel’s discussion with the court on February 19, 1963, concerning the final punishment and sentence to be imposed upon both Isaiah and one of his accomplices the court expressly called attention to the fact that there was no motion for a new trial, and in these circumstances there is no problem of his being improperly denied the right to timely file the motion (State v. Hecke, Mo., 328 S.W.2d 41; State v. Crow, Mo., 377 S.W.2d 129) and this court is necessarily limited in its review to those questions not required to be presented in a motion for new trial. State v. Parker, supra.

And in any event, the principal questions presented concern the information. While it does not appear from the information, there were three participants in the robbery and one of Isaiah’s accomplice’s had the gun, gave most of the directions and made the direct threats. Several of the appellant’s complaints ignore the fact that in these circumstances, when two or more persons participate in a robbery and one is an accessory or constructively or actually present for the purpose of aiding in the commission of the robbery, all may be charged with the principal offense. V.A.M.S. § 556.170; State v. Johnson, Mo., 347 S.W.2d 220; State v. Tripp, Mo., 303 S.W.2d 627; State v. Thompson, Mo., 299 S.W.2d 468. One of the challenges is that the information was defective in alleging that the money was the property of Hugh Brady Swan, a filing station attendant, when in fact the money belonged to his employer. In support of the contention the appellant relies on State v. Morledge, 164 Mo. 522, 65 S.W. 226. But as soon as the court had the opportunity, it promptly overruled that case and held that the “clerk,” or here the attendant, “had a sufficient ownership thereof, as against the defendant, to justify the laying of said money in him for the purposes of this prosecution against the defendant, who robbed him of the same, and a sufficient ownership to meet the requirement of the statute that said money should be laid as his.” State v. Montgomery, 181 Mo. 19, 29, 79 S.W. 693, 696, 67 L.R.A. 343; V.A.M.S. § 560.120; Annotation 123 A.L.R. 1103. Another assignment is that the information is fatally defective “in that it does not allege or require a finding of the element of ‘intent.’ ” It is not known whether the appellant refers to the intent with which the money was taken or to the intent with which the assault was made. In any event, unlike many other criminal offense statutes, the first degree robbery statute does not employ the word “intent,” the statute says “feloniously taking the property of another” (V.A.M.S. § 560.120) and the word “felonious” classifies the offense but the word does not denominate a specific intent and does not necessarily spell out an essential element of the case. State v. Harris, Mo., 313 S.W.2d 664, 669, State v. Churchill, Mo., 299 S.W.2d 475. It has several times been held, in a robbery information, that it is “unnecessary to allege a felonious intent on the part of the defendants to convert the money to their own use and to deprive the owner thereof.” State v. Moody, Mo., 312 S.W.2d 816, 818 and the cases there collected. As indicated from its failure to precisely and accurately allege the ownership of the money, the information is not a model, nevertheless it alleges an offense under the first degree robbery statute. State v. Perry, Mo., 233 S.W.2d 717; State v. Foster, Mo., 249 S.W.2d 371, 372.

The verdict was in proper form and fixed a punishment within the statute (V.A.M.S. § 560.135), there was allocution and the sentence and judgment are responsive to the verdict (Sup.Ct.Rules 27.08, 27.09), the appellant was present throughout all the proceedings (V.A.M.S. §§ 546.550-546.570) and as to all matters necessary to be considered by the court “upon the record before it” (Sup.Ct.Rule 28.02) there are no manifestly prejudicial errors and 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.


author: PRITCHARD, Commissioner. PER CURIAM.

text:
    Robbie SCHMITT, Mildred Lois Killion, and L. B. Buchanan, and George T. Killion, Administrator of the Estate of Lois Pierce, Deceased, Appellants, v. Robert O. PIERCE and Helen Hinchey, Administrator and Administratrix of the Estate of Otho Pierce, Deceased, and Robert O. Pierce and Laura Pierce, His Wife, and Helen Hinchey and Harold Lloyd Hinchey, Her Husband, Respondents, Shirley Ann Pierce, a Minor, and L. G. Pinkley, Guardian of the Property of Shirley Ann Pierce, a Minor, Defendants.
    No. 50021.
    Supreme Court of Missouri, Division No. 2.
    May 11, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 8, 1964.
    Roberts & Roberts, Farmington, for appellants.

      Ward & Reeves, Caruthersville, Mc-Haney, Billings & Welman, ICennett, for respondents.
   PRITCHARD, Commissioner.

On February 19, 1958, Otho Pierce and Lois Pierce, husband and wife, both died intestate as a result of an automobile accident. By Count I of their petition plaintiffs sought to prevent the administrators of the estate of Otho Pierce, deceased, from charging one-half of the Federal Estate Tax paid in total amount of $47,792.82, against the distributive share of the estate of the surviving widow, Lois Pierce, deceased, and sought also a decree declaring that the doctrine of equitable contribution for such Federal Estate Tax be here applied. A motion to dismiss said Count I upon the ground of res adjudicata was made by the defendants Robert O. Pierce and Helen Hinchey, individually and as administrators of the estate of Otho Pierce, deceased, which motion was sustained by the trial court and judgment of dismissal of Count I of the petition was entered. By Count II of their petition plaintiffs sought to prevent the administrators of said Otho Pierce estate from paying from that estate certain fee bills in the amount of $1,005.85 in two prior consolidated suits to determine the survivorship of the widow, Lois Pierce, deceased, which fee bills were assessed against Robert O. Pierce and Helen Hinch-ey, individually, by the court in the two previous cases. Plaintiffs appeal from the judgment of the court against them on both counts of their petition.

The motion to dismiss Count I is as follows:

“Defendants move the court to dismiss Count One of plaintiffs’ petition for the reason that all matters of alleged controversy therein contained have been judicially determined by the final decree in the case of Robbie Schmitt, et al vs. Robert O. Pierce, et al. # 18,496 and the case of Robbie Schmitt et al vs. Robert O. Pierce et al # 18,497, a certified copy of said decree is attached hereto and made a part of this motion.”

In the trial court’s decree in the two prior consolidated cases, a certified copy of which decree is before this court, the matter of the interests of the parties in lands owned individually by Otho Pierce, deceased, ánd in lands owned by him and his spouse, Lois Pierce, deceased, as tenants by the entirety, is determined. Then the decree goes on as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that one-half (i/¿) of all the personal property and other assets, excluding real estate, belonging to Otho Pierce and in the hands of Robert O. Pierce and Helen Hinchey, as Administrator and Administratrix of the estate of Otho Pierce, deceased, as well as one-half {V2) of personal property and other assets, excluding real estate, which should properly be included in said estate of Otho Pierce, are and belong to the estate of Lois Pierce; and that Robert O. Pierce and Helen Hinchey, as Administrator and Administratrix of the estate of Otho Pierce and their successors, if any, are directed that upon the completion their administration of the estate of Otho Pierce, deceased, they turn over, pay to and deliver to the administrator of the Lois Pierce estate one-half (1/2) of the estate of Otho Pierce remaining after the payment of taxes and other necessary expenses incurred in the administration of the Otho Pierce Estate;
“AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the costs of these proceedings be taxed against the defendants, Robert O. Pierce and Helen Hinchey, and that execution issue therefor.
“Dated this 6th day of December, 1958.” (Emphasis supplied.)

Upon appeal said decree was affirmed by this court without modification, and it was said in the opinion: “The fact issues in the trial court were: Did one survive the other, or did they die simultaneously within the meaning of the Uniform Simultaneous Death Act, Chapter 471.” See Schmitt v. Pierce, Banc, Mo., 344 S.W.2d 120, 122, in which it was judicially determined that Lois Pierce survived her husband, Otho Pierce.

Insofar as is shown by the records and exhibits which we have before us in the prior cases and in our opinion above cited there was no issue concerning the apportionment of the Federal Estate Tax between the two estates. The sole issue was the survivorship of the widow, and that was the ultimate fact which was determined in these cases. “[T]he law is well settled that a judgment or decree is only conclusive and operates as an estoppel as to the issues actually litigated and settled, and where the subsequent action is upon a different claim, the judgment in the former case is only conclusive and only bars those issues which were actually tried.” (Emphasis supplied.) Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629, 639[12]; Abeles v. Wurdack, Mo., 285 S.W.2d 544. The causes of action in the first consolidated suits and in the case at bar are not the same. The identity of the causes of action is one of the essential elements which is necessary to support a plea of res adjudicata. See State ex rel. Dalton v. Reorganized District No. 11, Mo., 307 S.W.2d 501, 506[3]. There is no fact decided in the first suits which would be determinative of the issue of law here, i. e., the thrust or burden of the Federal Estate Tax upon the estates of the two decedents. See Abeles v. Wurdack, supra, loc. cit. 285 S.W.2d 546[1-3], where it is said, “A judgment between the same parties on a different cause of action is binding as to the facts actually decided, and necessarily determined in rendering the judgment, under what is called estoppel by verdict.” See also Reis v. La Presto, Mo., 324 S.W.2d 648, 652[2-5],

Although the parties have agreed that the former decree was prepared by counsel for appellants for the trial court, the inclusion in the decree of the order that the administrators of the Otho Pierce estate “pay to and deliver to the administrator of the Lois Pierce estate one-half (i/á) of the estate of Otho Pierce remaining after the payment of taxes and other necessary expenses incurred in the administration of the Otho Pierce Estate,” was surplusage. We hold that the former suits were not res adjudicata of the issue in the present suit, and the trial court erred in dismissing Count I of the petition upon that ground.

The trial court disposed of Count I of plaintiffs’ petition by sustaining a motion to dismiss upon the ground of res adjudicata. There was no formal pleading by defendants to the merits of plaintiffs’ petition. Defendants say this court should not proceed to dispose of this case in the absence of their pleading; that “Surely if the respondents have the defense of accord and satisfaction, or any other defense, we should be permitted to plead and prove it. Before any case under a theory of equitable apportionment has been decided adversely to respondents, surely respondents are entitled to present evidence of equities favoring their plan of distribution.” The stipulation of facts of the parties here, made on the same day of and just prior to the judgment of dismissal below, covers only (as here now relevant) the fact that the administrators of the Otho Pierce estate intend to charge one-half ($23,896.41) of the estate tax against the distributive share of the Lois Pierce estate. The issue of equitable apportionment was thus not tried to the court below, and defendants are entitled to plead and prove any defenses or equities bearing upon that doctrine. The stipulation does not cover any facts relating to these defenses, including accord and satisfaction, which if good, would eliminate any issue of equitable apportionment because the parties by any agreement constituting an accord and satisfaction would thereby themselves dispose of the matter of the thrust or burden of the Federal Estate Tax.

We now take up the propriety of the judgment of the court directing that the court costs in the two prior actions to determine survivorship be paid by the administrators of the Otho Pierce estate as a proper obligation therein. It is to be noted that the recital of the judgment entry (above set forth) in those cases taxed the court costs against defendants therein, Robert O. Pierce and Helen Hinchey. This was a final judgment, and in the appeal of these actions the judgment as to assessment of costs was undisturbed. So far as this record reveals there was no presentation to the trial court in the two previous cases in the motion for new trial any matter relating to an erroneous judgment for the court costs of the action. “A motion for a new trial within the proper time is the only way for obtaining revision of a specific judgment for costs.” Beecham v. Evans, 136 Mo.App. 418, 117 S.W. 1190, 1191. Appellants are correct in saying that the judgment for costs cannot now be collaterally attacked.

The judgment of the trial court assessing the court costs against the estate of Otho Pierce, deceased, upon Count II of plaintiffs’ petition is reversed.

The judgment of the trial court upon Count I of plaintiffs’ petition is reversed, and this case is ordered remanded for further proceedings.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.

On Motion for Rehearing

PER CURIAM.

In their motion for rehearing or in the alternative for transfer to the court en banc defendants say that we erroneously ruled upon the issue of res adjudicata in the opinion, that we assumed that only factual issues can be res adjudicata and that we ignored that questions of law are also adjudicated, and once adjudicated cannot thereafter be submitted again for determination.

We said in the opinion that the decree is only conclusive and operates as an es-toppel as to the issues actually litigated and settled, and where the subsequent action is upon a different claim, the judgment in the former case is conclusive of and bars only those issues which were actually tried, citing Loud v. St. Louis Union Trust Co., 298 Mo. 148, 249 S.W. 629, 639 [12]; and Abeles v. Wurdack, Mo., 285 S.W.2d 544.

The factual issue decided in the former suit was the survivorship of the two decedents, and from that finding flowed the judgment that the estate of Lois Pierce, deceased, was entitled to inherit from the estate of Otho Pieixe, deceased, as surviving spouse. Meisel v. Mueller, Mo.App., 261 S.W.2d 526, does say, loc. cit. 532, “It is undoubtedly the law that a prior adjudication, in order to bar a subsequent action, must involve the same claim, demand, and cause of action, 30 Am.Jur., § 172, p. 914, but it is also the universal rule, that the prior adjudication, applies not only to points and issues that were raised by the pleadings and the parties, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought fotward.” In Custer v. Kroeger, 313 Mo. 130, 280 S.W. 1035, 1037, 44 A.L.R. 1328, it Was stated, “Every question presented in the petition before us could have been litigated in the former case. The appellant is concluded in this action, not only to the issues which were tried in the former suit, but in respect to every issue which was within the purview of the pleadings, and was the subject of controversy in said action.” See also the cases of Mississippi Valley Trust Company v. Beatty et al., Mo., 242 S.W.2d 490; Christy v. Great Northern Life Ins. Co., 238 Mo.App. 525, 181 S.W.2d 663; Doebbeling v. Quimby, 221 Mo.App. 1178, 299 S.W. 629; and Case v. Sipes, 280 Mo. 110, 217 S.W. 306.

In addition to the opinion of Schmitt v. Pierce, Banc, Mo., 344 S.W.2d 120, and the decree in the two prior consolidated cases, we have examined the pleadings in these prior cases which are on file in this court. The basic allegations of the facts in the two prior suits that decedents were husband and wife; that they were involved in an automobile accident from which they died; the administrators of the two estates; and the heirs of both decedents, are the same as in the present suit. At this point there is a divergence in the petitions in that in the first suits it was alleged that Lois Pierce survived her husband and thereby became entitled to a widow’s interest in his estate (and was entitled to take the property held by the entirety during the marriage). The prayers were that the court find that one-half of the Otho Pierce estate belonged to the Lois Pierce estate, and that the same remaining after expense of administration be turned over to her estate, and that the property held as tenants by the entirety be adjudged to belong to the heirs of Lois Pierce. Defendants denied the allegations of heir-ship and survivorship, and by counterclaim stated that Otho Pierce survived Lois Pierce, or that they died simultaneously, and that his estate was entitled to one-half of hers, or in the alternative that one-half of the property owned by the entirety be adjudged vested in defendants. Significantly, in the motion for consolidation of the two prior cases, defendants stated, “The issues in both cases are identical, that is, the question of fact to be determined is whether or not Lois Pierce predeceased Otho Pierce, or whether Otho Pierce predeceased Lois Pierce, or whether both Otho Pierce and Lois Pierce died simultaneously as a result of common disaster.”

From the aforesaid pleadings, the decree, and the opinion in Schmitt v. Pierce, supra, it is clear that no other issue than survivor-ship was presented or could have been then decided. The subject of controversy was merely that of survivorship and the attendant right to inherit.

We deem that the opinion in this case is not a departure from the doctrine of res adjudicata as applicable to issues of law within the subject of controversy which could have been raised (but were not) in a former suit. As stated in the opinion, the cause of action here is different than in the previous suits.

Defendants say that our ruling that the matter of the court costs in the former suit is res adjudicata is inconsistent with the ruling that the survivorship suits are not res adjudicata. The present ruling that the court costs which were adjudged in the former suits is a clear example of the doctrine “estoppel by judgment.” Defendants are thereby precluded from a collateral attack upon the former final judgment as to costs. Nor is defendants’ claim that plaintiffs did not specifically plead res adjudicata correct. Plaintiffs did plead this issue in this declaratory judgment action by setting forth in their petition the allegation that the administrators of the estate of Otho Pierce, deceased, intended to charge these former court costs against that estate, thus bringing the issue squarely before the court. This type of affirmative pleading is not the same as that required of affirmative defenses (pleading to a preceding pleading) by Supreme Court Rule 55.10, V.A.M.R.

The motion for rehearing or in the alternative to transfer to the court en banc is overruled.


text:
    The STATE of Missouri, at the relation of Don THOMASON, Commissioner of Agriculture, Appellant, v. ADAMS DAIRY COMPANY, a Corporation, Respondent.
    No. 50169.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied and Opinion Modified on Court’s Own Motion June 8, 1964.
    Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for appellant.
    Hillix, Hall, Hasburgh, Brown & Hoff-haus, Charles E. Hoffhaus, Kansas City, Donnelly & Donnelly, David Donnelly, Lebanon, for respondent.
   COIL, Commissioner.

Don Thomason as the State Commissioner of Agriculture brought suit to enjoin respondent, Adams Dairy Company, a corporation, from allegedly violating Section 416.-440 (all section citations herein refer to sections of RSMo 1959 and V.A.M.S.) of the Unfair Milk Sales Practices Law, Sections 416.410-416.560, by giving milk to persons “with the intent and with the effect of unfairly diverting trade from a competitor or of otherwise injuring a competitor or of destroying competition, or of creating a monopoly.”

The court made separate findings of fact and conclusions of law and entered a judgment denying the commissioner’s request for a permanent injunction and dismissing his petition. The commissioner has appealed from that judgment and contends the trial chancellor erred in finding that respondent’s acts alleged to have constituted a violation of the section in question were not done with the intent and did not have the effect of unfairly diverting trade from a competitor.

We have jurisdiction because a state officer as such is a party. Article V, Section 3, Missouri Constitution, V.A.M.S.

The evidence consisted of stipulated facts and the testimony of one of respondent’s vice-presidents. The agreed facts show that on February 16, 17, and 18, 1962, respondent, through agents stationed at the front entrance of a supermarket in Lebanon, handed coupons to persons entering the store which entitled each of them to a one-half gallon carton of Adams homogenized milk without charge. The agents were authorized by respondent to give coupons to the first 2,500 persons entering the store on the 16th and 17th and to the first 1,000 on the 18th. Cartons of milk given to customers as the result of the distribution of the coupons did not exceed 1,500 on the 16th, 2,300 on the 17th, and 1,000 on the 18th. The coupons were distributed and the milk given by respondent as part of an “introductory sales promotion of Adams labeled dairy products” in the Lebanon area. No Adams labeled products ever had been sold in that area prior to three or four weeks before February 16, 1962. It was agreed that some of the people to whom the coupons and the l^-gallon cartons of milk were given had theretofore purchased milk products from retail outlets in Lebanon. Adams processed milk and milk products at a division of its company known as Cloverleaf Dairy in Springfield. Those products had been sold in Lebanon (under the Cloverleaf label) for several weeks prior to the time that any Adams labeled products were sold there.

It was conceded that Adams had theretofore engaged in similar introductory sales promotion projects at other places and intended to engage in others in the future.

Mr. Frye, respondent’s vice-president, experienced in the dairy business and who had been in the Springfield area for periods during approximately five years, testified that it was a usual and common practice in the dairy industry in Missouri for dairies, including Adams, when they entered a new area to “engage in a promotion of its products” for the purpose of acquainting prospective customers with their products and with the “superior qualities” of those products. He said the promotional effort was a “one-time” affair, i. e., after two or three days it was to and did end.

As a result of a study Mr. Frye had made of milk consumption in the Lebanon area for the year 1962, he knew that at trial time (December 17, 1962) Adams labeled milk constituted between li/2 and 2 per cent of the milk consumed in that area; that the Cloverleaf division sold not to exceed three per cent of the milk so consumed; and that some of the persons who consumed the V/2 to 2 per cent of Adams labeled milk were buyers who formerly bought Cloverleaf labeled products; that Adams thought that by getting customers acquainted with its products, Adams would sell more; that some of the milk Adams sold in the area by trial time was sold to persons who were former customers of competing companies. The competing companies in Lebanon were Hiland, Tastemark, Foremost, and Pevely. Those dairies had been selling in the Lebanon area for “quite awhile.”

As noted, the section of the law alleged to have been violated is 416.440 which, in pertinent parts, provides:

“1. No milk processor or distributor shall, with the intent or with the effect of unfairly diverting trade from a competitor, or of otherwise injuring a competitor, or of destroying competition, or of creating a monopoly, give or offer to give any milk product purchaser any rebate, discount, free service or services, advertising allowance, pay for advertising space used jointly, donation, free merchandise, rent on space used by the retailer for storing or displaying the milk processor’s or distributor’s merchandise, financial aid, free equipment, or any other thing of value; except the bona fide return by a cooperative association to its members on a patronage basis of the savings realized on products sold and distributed to the members or patrons.
“2. Proof of the giving or offer to give anything of value is prima facie evidence of a violation of this section.
* * *
“5. This section does not prevent a processor or distributor from furnishing point-of-sale advertising material to a retailer without cost for the promotion of the sale of the processor’s or distributor’s products.
“6. This section does not prevent a discount of two per cent or less for payment on or before a certain date.”

So much of paragraph 1 above as is specifically pertinent here is, “No milk processor or distributor shall, with the intent or with the effect of unfairly diverting trade from a competitor, * * * give * * * any milk product purchaser * * * free merchandise * * As noted, paragraph 2 of the section provides that proof of giving free merchandise is prima facie evidence of a violation of the section. Appellant makes no contention, and there is no evidence, that respondent’s giving the milk in question tended to destroy competition, create a monopoly, or injure a competitor, other than, as contended, by unfairly diverting trade. Consequently, the question is a narrow one. Did the Commissioner of Agriculture sustain his burden to prove that respondent gave away milk in the manner aforedescribed with the intent or with the effect of unfairly diverting trade from a competitor?

The provision in paragraph 2 that proof of giving milk is prima facie evidence of a violation of the section is a rule of evidence which may affect the burden of evidence but does not affect or change the burden of proof. In this case the burden of proof, including the risk of nonpersuasion, remained throughout on the commissioner who charged that respondent violated the provisions of the section of the law in question. City of St. Louis v. Cook, 359 Mo. 270, 221 S.W.2d 468, 469. The question is whether appellant has sustained his burden to prove the violation as charged, upon a consideration of all the evidence.

It seems to be appellant’s position that any act, otherwise prohibited by Section 416.440 and not specifically excepted or permitted by that section, is an act done with the intent and with the effect of unfairly diverting trade 'from a competitor. In that connection, appellant points to paragraphs 5 and 6 of Section 416.440 set forth above which provide, respectively, that nothing in the section shall prevent a processor or distributor from furnishing certain advertising without cost or prevent a maximum discount of two per cent for prompt payment. As we understand, appellant means that an act of competition is intended to be and is “unfair” if it is any act other than those mentioned in paragraphs 5 and 6. If that argument is valid, no possible reason exists for the inclusion by the legislature of the requirement of Section 416.440 that the giveaways (and other acts) prohibited are only those done with the intent or the effect of unfairly diverting trade. In other words, according to appellant, there was no reason to include in paragraph 1 of Section 416.440 the elements of unfair intent and unfair effect. It seems to us that the legislature easily could have provided, and if it so intended, would have provided in plain English that the giving to a milk products purchaser any merchandise constituted an unfair diversion of trade, except furnishing certain freí advertising and giving a discount for cash. The state’s argument appears to us to overlook the fact that, according to the explicit language of the section in question, giving away milk is not illegal (a violation of the act) unless it is done with the intent or with the effect of unfairly diverting trade from a competitor.

In Borden Company v. Thomason, Mo., 353 S.W.2d 735, 754[15], this court en banc said: “Whether an act is committed with the intent or with the effect of 'unfairly diverting trade from a competitor’, the court is of course competent to decide and to give a reasonable definition and construction of the words used when a proper case is presented. Whether or not a sale below cost has unfairly diverted trade is a matter of proof in each instance and must depend on the facts and circumstances shown. The provision is subject to a reasonable interpretation.” The court was there dealing with Section 416.415, but the holding is, of course, apposite to Section 416.440 here in question.

All the evidence in this case showed that respondent gave cartons of milk to prospective customers in order to acquaint those persons with recently introduced Adams labeled products in the hope that those consumers would thereafter buy those products; that the giveaway program was a 3-day “one-time” promotional effort carried on in accordance with usual and common practice in the dairy industry when •a new label on milk products is being introduced in a city and area; that the promotional effort resulted in Adams labeled •products being less than two per cent of the total milk consumed in the area as of some ten months later, and a portion of that small percentage resulted from milk users who had theretofore purchased Adams products under the Cloverleaf label buying products under the Adams label; that there were four competing dairies, and there was no evidence that all four were not “large” as opposed to “small individually operated dairies.”

The trial court in this case made a specific finding that the sales promotion as shown by the evidence “was not carried on with the intent of, and did not have the effect of unfairly diverting trade from a competitor.” We reach the same conclusion upon an independent review of the record. The evidence shows only a recognized and frequently used practice in the dairy industry, which had a legitimate business purpose and which has never heretofore been considered as against public policy or as characterized by deception, bad faith or fraud, and which did not in fact result in any substantial diversion of trade. Upon this record the conclusion is required that respondent, in conducting its promotional program involving giving milk to users, did not intend or have the effect of unfairly diverting trade from a competitor. See Mott’s Super Markets, Inc. v. Frassinelli, Conn., 172 A.2d 381, 386, 172 A.2d 381; Wiley v. Sampson-Ripley Co., 151 Me. 400, 120 A.2d 289, 291 [4], (The court en banc in the Borden case, supra, refused to follow the Mott and Wiley cases in so far as those cases held the “prima facie” portions of the respective acts unconstitutional; but the holdings of those cases which support our conclusion herein are in accord with the court en banc’s holding in the Borden case.)

It follows that the judgment should be affirmed. In view of our conclusion in that respect, it will be unnecessary to discuss, and we hereby overrule respondent’s motion to dismiss.

Judgment affirmed.

HOUSER, C., concurs.

WELBORN, C., concurs in result.

PER CURIAM.

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

All concur.


author: STORCKMAN, Presiding Judge.

text:
    Thomas M. CAMPBELL, Plaintiff, v. Albert PRESTON, Jr., Defendant-Cross-Claimant-Appellant, Rebecca Beeman, William Bradley, and Marie Palmer, Defendants-Cross-Defendants-Respondents.
    No. 50262.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.

      Wm. Coleman Branton, James E. Grier, Kansas City, for defendant, cross-claimant-appellant, Albert Preston, Jr., M.D., Brewer, Myers & Branton, Kansas City, of counsel.
    Jerome W. Seigfreid, Edwards, Seigfreid & Runge, Mexico, Mo., for respondent William Bradley.
    William H. Sanders, Dean F. Arnold, Thomas I. Osborne, Kansas City, for respondent Palmer, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel.
    Clark A. Ridpath, Kansas City, for respondent Beeman, Moody & Ridpath, Kansas City, of counsel.
   STORCKMAN, Presiding Judge.

This is an appeal from an order dismissing a cross-claim filed pursuant to Civil Rule 55.49, V.A.M.R. in an action to recover for the wrongful death of plaintiff’s wife, Edith S. Campbell, who died from the effects of a drug alleged to have been negligently prescribed and administered to her while she was a patient in St. Luke’s Hospital in Kansas City.

The sole defendant in the original petition was Albert Preston, Jr., a medical doctor who prescribed the drug. Thereafter, an amended petition was filed joining as defendants' William Bradley, an intern employed by St. Luke’s Hospital, Rebecca Bee-man and Marie Palmer, both registered nurses also employed by the hospital. These added defendants are alleged to have had a part in administering the drug which Dr. Preston prescribed. The petition is separated into three counts with one prayer for relief which seeks a $25,000 judgment against all the defendants.

The defendants Beeman, Bradley, and Palmer filed separate motions to dismiss the amended petition for failure to state a claim and because as to them the plaintiff’s claim was barred by the one-year statute of limitations. In addition to an answer, the defendant Preston filed a cross-claim against his co-defendants Bradley, Palmer, and Beeman by which he sought to have judgment rendered against his co-defendants for all amounts that might be adjudged against him in favor of the plaintiff. The cross-defendants filed separate motions to-dismiss the cross-claim of defendant Preston alleging generally that the cross-claim-failed to state a claim upon which any relief could be granted and that the claim as to them was barred by the one-year statute of limitations. Mrs. Campbell died March 13, 1961, and the amended petition-was filed February 25, 1963.

On June 11, 1963, the trial court entered' its orders sustaining the separate motions of the defendants Beeman, Bradley, and Palmer to dismiss plaintiff’s first amended petition and the cross-claim of the defendant Preston. The plaintiff’s amended petition was dismissed without prejudice but the dismissal was stated in the order to be a final judgment as to the defendants Bee-man, Bradley, and Palmer. The cross-claim of the defendant Preston was also “dismissed without prejudice”, and the dismissal was designated a “final judgment”. The orders of dismissal did not specify the grounds-upon which they were granted.

The plaintiff did not appeal from the judgment dismissing his petition as to the defendants Beeman, Bradley, and Palmer. The case is before us on the appeal of the-cross-claimant Preston who presents the contentions that his cross-claim states a claim for indemnity and that it is not barred by the statute of limitations. The respondents Beeman, Bradley, and Palmer in general contend that the cross-claim fails to state a cause of action in that no facts were alleged to establish a primary duty owing by the intern and the nurses to Dr. Preston and because the cross-claimant’s own pleadings establish that the intern and the nurses were employees of the hospital and not of Dr. Preston and that the alleged negligence of the intern and the nurses did not expose the defendant Preston to liability under the doctrine of respondeat superior.

This court has jurisdiction of the appeal because the amount involved exceeds $15,000 in that the sum for which the appellant seeks indemnity is $25,000 as shown by plaintiff’s petition. Crouch v. Tourtelot, Mo., 350 S.W.2d 799, 802 [5]. See also Federal Practice and Procedure, Rules Edition, Barron and Holtzoff, Vol. 1A, § 392, pp. 547-550.

Civil Rule 55.49 provides that: “A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein, or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.” Our cross-claim rule is the same as Federal Rule 13(g). Civil Rule 52.10, regarding the third-party practice, and Civil Rule 55.45, concerning counterclaims, are related in purpose to Civil Rule 55.49 but cover different factual situations.

In his brief and written argument, the appellant has narrowed the issues considerably with respect to the grounds on which he seeks to proceed with- his cross-claim against the respondents. He asserts that his cause of action based upon a claim of indemnity depends upon the existence of a principal and agent relation between the appellant and the respondents. He concedes that he is not entitled to relief under his cross-claim unless he is free from active and primary negligence and is not in pari delicto with the respondents. In his brief the appellant states his position in this fashion: “Pursuant to the foregoing rule [55.49], the appellant elected to file a cross-claim against the respondents stating that if, as plaintiff claims, the proximate cause of the plaintiff’s injury or damage was solely and exclusively acts or omissions of the respondents while acting as the agents of the appellant, then respondents were liable and should indemnify appellant. Thus, in his cross-claim, the appellant sought relief only if it were found that his liability to plaintiff was based on respondeat superior, i. e., that he was liable to plaintiff on account of the negligence of his agents, the respondents.”

As a general rule, indemnity is allowed in favor of one who is held responsible solely by imputation of law because of his relation to the actual wrongdoer, as where an employer is vicariously liable for the tort of an employee or in favor of one who was under only a secondary duty where another was primarily responsible, but as between joint tortfeasors or persons in pari delicto, contribution rather than indemnity is the right available. McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788, 793 [6], With a somewhat different emphasis, it has been stated that “a person who without any fault on his part is exposed to liability and compelled to pay damages on account of the negligence or tortious act of another” has a right of action against the active tortfeasor on the theory of an implied contract of indemnity. 42 C.J.S. Indemnity § 21, p. 596. To the same effect, see Busch & Latta Painting Co. v. Woermann Const. Co., 310 Mo. 419, 276 S.W. 614, 619 [8]; Central Surety & Insurance Corp. v. Hinton, 233 Mo.App. 1218, 130 S.W.2d 235, 238 [4]; Hunter v. De Luxe Drive-In Theaters, Mo. App., 257 S.W.2d 255, 259 [7]; Barb v. Farmers Ins. Exchange, Mo., 281 S.W.2d 297, 304 [11]; Joshmer v. Fred Weber Contractors, Mo.App., 294 S.W.2d 576, 588 [22]; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 507 [4-6]; Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., Mo., 338 S.W.2d 1, 5 [1, 2]. In Restatement of the Law Second, Agency 2d, § 401, pp. 239-240, the rule is stated in this way: “Unless he has been authorized to act in the manner in which he acts, the agent who subjects his principal to liability because of a negligent or other wrongful act is subject to liability to the principal for the loss which results therefrom.” See also State ex rel. Algiere v. Russell, 359 Mo. 800, 223 S.W.2d 481, 483 [3].

The corollary of these statements of the rule is that the right of indemnity does not exist if the alleged indemnitee authorized the act which proved to be negligent or wrongful and is directly at fault so that his liability does not arise solely by imputation of law because of his relation to the actual wrongdoer.

The requirements for pleading a cross-claim are the same as other claims for relief and are set out in Civil Rule 55.06 as follows: “A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. If a recovery of money be demanded, the amount shall be stated. Relief in the alternative or of several different types may be demanded.”

In determining the sufficiency of a cross-claim filed by a defendant in a tort action, the court must assume that the facts stated in the plaintiff’s petition and the defendant’s cross-claim are true. State ex rel. Algiere v. Russell, 359 Mo. 800, 223 S.W.2d 481, 483 [2]; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 502 [1]; Johnson v. California Spray-Chemical Company, Mo., 362 S.W.2d 630, 633 [1],

The cross-claim incorporates the plaintiff’s petition by reference and asserts that Dr. Bradley was “an intern employed by St. Luke’s Hospital” and defendants Bee-man and Palmer were “registered nurses employed by St. Luke’s Hospital”; that on March 3, 1961, while Mrs. Campbell was a patient at St. Luke’s Hospital, the defendant Preston “prescribed that certain drugs, to-wit, Brevital, together with Sodium Amy-tal, be administered to said Edith S. Campbell”; that the defendants Bradley, Bee-man and Palmer “ordered, mixed, prepared, handled, administered or caused to be administered said drugs to plaintiff’s wife, Edith S. Campbell”; and that “if there is found any negligence resulting in damage to plaintiff, * * * then such damage was caused solely and exclusively by the negligence of the defendants, William Bradley, Marie Palmer and Rebecca Beeman * * *, jointly and severally, or their agents, servants and employees, in ordering, mixing, preparing, handling and administering said drugs and in supervising, assisting and observing the ordering, mixing, preparing, handling and administration of said drugs in the particulars alleged above in subparagraphs a to p, both inclusive.” The omitted paragraphs a to p in the foregoing quotation are admittedly rescripts of “negligence alleged by the plaintiff” in his petition.

The only reference in the cross-claim to the defendants Bradley, Beeman, and Palmer as agents or servants of the defendant Preston is paragraph 9 which reads as follows : “That Cross-defendants will be liable jointly and severally to this defendant for all of plaintiff’s claim against this defendant in the event the jury should return a verdict against this defendant based upon the fact that the proximate cause of plaintiff’s injury or damage was the act or omission of cross-defendants, or any one or more of them, while acting as an agent, employee or servant of this defendant.”

The plaintiff’s petition alleged that the drug chosen by Dr. Preston was peculiar and unusual in its nature and required specialized skill and knowledge in its administration, and that Dr. Preston carelessly and negligently and contrary to the warning contained on the label of said drug failed to advise the use of a qualified anesthesiologist for the administration of the drug. The remaining specifications of negligence in Count 1 are directed against “Dr. Preston or his agent, servant or employees” or against “Dr. Preston, through his agent, servant or employees”. The petition further states that Dr. Bradley was asked by the nurses Beeman and Palmer to provide and inject medications as directed by Dr. Preston, Jr.; that Dr. Bradley administered the drug and Mrs. Campbell became apneic and developed a cardiac standstill “due to the negligence of the ordering of the drug in the first instance by Dr. Albert Preston, Jr., and further combined with the negligence” of the defendant Bradley; that defendants Beeman and Palmer were servants, agents and employees of defendant Preston “employed by the St. Luke’s Hospital” ; that they had Mrs. Campbell under their direction and control for the benefit of Dr. Preston; that Dr. Preston wrote an order in the Doctors’ Order Record for the drug with directions to administer it just before an ambulance arrived to transfer the patient to Neurological Hospital; that Dr. Preston told nurse Beeman to give one entire vial or ampule of Brevital as ordered whereupon Dr. Preston left the premises without further explanation and without advising nurse Beeman or nurse Palmer of the propensities of said drug or the nature thereof; that the defendants Beeman and Palmer were negligent in that they failed to ascertain the nature of the drug ordered by Dr. Preston; that they failed to read the literature containing the admonitions necessary for the safe handling and administration of the drug; and “That as a direct result and in combination with the negligence of Dr. Bradley and Dr. Preston, and acting as Dr. Preston’s agent, servant and employee, the negligence of nurses Palmer and Beeman caused the death of said Edith Campbell.” The pleadings, especially the amended petition, are extensive and quite detailed but the above summary sufficiently indicates their content.

The area in which a party charged with liability in a negligence action can obtain indemnity from another party embraces a group of special situations and relationships and is closely circumscribed to exclude parties in pari delicto. State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 502 [2]; Johnson v. California Spray-Chemical Co., Mo., 362 S.W.2d 630, 633 [2].

“But * * * there is the situation, quite frequently encountered now that joinder in the alternative is permissible, where one defendant wishes to assert that he is blameless and that his co-defendant is solely liable. In this circumstance a cross-claim will not be permissible, since it asks for no relief from the party against whom it is asserted. Facts which show that the would-be cross-claimant is blameless will be a complete defense as to him, but they raise no issue between him and the other defendant.” Federal Practice and Procedure, Rules Edition, Barron and Holtzoff, Vol. 1A, § 397, pp. 600-601. In some respects, the pleadings indicate that the cross-claimant Preston is contending that the legal injury resulted “solely and exclusively” from negligence for which he could not be held legally liable in any event, but the decision need not rest on that ground.

The basis for liability of a person, other than the actual master, for the act of a servant, is usually his personal participation in the servant’s act in some manner. McFarland v. Dixie Machinery & Equipment Co., 348 Mo. 341, 153 S.W.2d 67, 70 [2], 136 A.L.R. 516. Where a person actively participates as by expressly ordering or directing the act which proves to be negligent or wrongful, such person is liable to a third person damaged thereby even though the relation of employer and employee does not exist between the one who directs the act and the one who performs it. Restatement of the Law Second, Agency 2d, § 212, Comment a; Restatement of the Law of Torts, § 876; 57 C.J.S. Master and Servant § 557, p. 268.

A prescription in a medical sense is a written direction for the preparation, compounding, and administration of a medicine. Webster’s New Third International Dictionary. When a patient is injured or dies as a result of the negligence of his physician in writing an erroneous prescription, the physician is subject to liability. 70 C.J.S. Physicians and Surgeons § 48 l, p. 971. The prescription which Dr. Preston entered on the order record called for the mixing of certain drugs and their injection into the body of Mrs. Campbell. The “drug that was chosen by Dr. Preston” was alleged to be peculiar and unusual in its nature and to require specialized skill and knowledge in its administration. Mrs. Campbell’s death is alleged to be due to the negligence of Dr. Preston in the first instance in ordering the drug and giving incomplete directions as to how it should be administered, and that the negligence of Dr. Preston combined with the negligence of the intern and nurses caused the death of Mrs. Campbell.

The pleadings disclose that Dr. Preston personally directed and participated in the act which is alleged to be negligent. Thus he is alleged to be in pari delicto and his liability does not depend upon the doctrine of respondeat superior. He is charged with active and concurrent negligence'and cannot be said to be charged with liability solely by imputation of law. Therefore, the remedy of indemnity is not available under these pleadings. Union Electric Co. v. Magary, Mo., 373 S.W.2d 16, 22 [3]; Johnson v. California Spray-Chemical Co., Mo., 362 S.W.2d 630, 634 [5]; Crouch v. Tourtelot, Mo., 350 S.W.2d 799, 806-807 [11]; State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 508 [8]; State ex rel. and to Use of Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705, 708 [3].

We have considered all questions presented, but since the reasons stated demonstrate that the cross-claim does not state facts showing that the pleader is entitled to relief it is unnecessary to decide or discuss other issues.

The judgment is affirmed.

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

LEEDY, J., not sitting.