text:
    Leonard F. BARTLETT, Appellant, v. Naomi K. CAIN, Respondent.
    No. 23685.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      Donald L. Randolph, Kansas City, for appellant.
    William H. Sanders, Dean F. Arnold, Walter F. Moudy, Kansas City, Caldwell, Blackwell, Sanders & Matheny, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

Plaintiff sued defendant for damages allegedly arising from personal injuries in .an intersection automobile collision.

The accident occurred on the morning of November 1, 1960, in the intersection of Truman Road and Hardesty Street, Kansas City, Missouri. The weather was clear. Both streets were paved. Truman Road is 60 feet wide, runs east and west, with three traffic lanes ten feet wide going each direction. Hardesty Street at the intersection is 36 feet in width. Traffic was controlled by Stop and Go lights. Plaintiff, Leonard F. Bartlett, was driving his 1953 Pontiac west on Truman Road. Defendant, Naomi K. Cain, driving her 194S Chevrolet, approached the intersection from the west. It was plaintiff’s intention to continue west on Truman Road. Defendant planned to turn left and proceed north on Hardesty.

In describing the sequence of events, defendant testified: that as she drew near Hardesty, the light was red, she stopped in the north lane behind two other cars, the light changed to green, the two cars ahead of her went on east, while she stopped near the center of the intersection and gave a left-turn hand signal. She said she waited until the westbound traffic cleared and then observed a truck standing in the center facing her, that the truck driver motioned her to proceed, that as she moved to the left by the truck, she looked east down the two extreme north lanes on Truman Road and saw plaintiff’s vehicle about a half block to the east and in the middle lane, that she proceeded slowly to make her turn, but that plaintiff veered from the middle lane to the north lane and that the front half of her car was out of the intersection and half was in the north lane when the front end of plaintiff’s car struck the rear right half of her Chevrolet on the side.

Plaintiff’s version was that he was traveling west on Truman Road in the extreme right hand lane at about 30 miles per hour, that he saw Mrs. Cain’s car when he was “40, maybe 45 feet” from the intersection and it had “just entered into my lane when I first saw her car”, “that he applied his brakes but skidded right down the lane and had an impact with her car”. He estimated his speed at “thirty * * * maybe twenty-five” when he first applied his brakes and 10 miles per hour at impact.

Corporal Manfred Gunther of the City Accident Investigation Unit found skid marks 20 feet in length made by plaintiff’s vehicle. These right wheel tire marks ended three feet south of the north edge of Truman Road and since the rear one-half of defendant’s car was struck, this indicates that her car was nearly half north of Truman Road at the time of collision.

The verdict was for defendant on plaintiff’s petition and for defendant on her counterclaim for property damage in the sum of Forty Dollars. Plaintiff has appealed, alleging error in the giving of defendant’s Instruction #7, and errors in the argument. We set out the text of Instruction #7:

“The Court instructs the jury that if you find and believe from the evidence that as defendant drove her automobile into the intersection in question there was a truck stopped in the inside or south lane for westbound traffic on Truman Road, and that defendant stopped her automobile in the middle of the intersection in front of that truck facing in a northerly direction and at that time plaintiff was approaching in the center lane for westbound traffic and about one half block from the intersection and that plaintiff saw or in the exercise of the highest degree of care could have seen defendant’s automobile start forward to go north on Hardesty at a speed of from five to ten miles per hour, and that plaintiff thereafter negligently veered his car from the center lane into the outside or north lane of traffic and into collision with the right rear half of defendant’s automobile, and that the plaintiff was thereby negligent, and that any such negligence directly caused or directly contributed to cause the collision, then your verdict must be for defendant on plaintiff’s claim for damages.
“And if you further find and believe from the credible evidence that at the time and place in question defendant was not negligent as submitted in these instructions and that defendant’s automobile was damaged in said collision, then you must return a verdict in favor of defendant on her counterclaim”.

Appellant on appeal says this instruction does not hypothesize sufficient facts upon which to base a finding of negligence. Appellant cites three cases in support, namely: Lillard v. Bradford, 241 Mo.App. 538, 243 S.W.2d 359; State ex rel. Grisham et al. v. Allen et al., 344 Mo. 66, 124 S.W.2d 1080, and Smith v. Wallace et al., 343 Mo. 1, 119 S.W.2d 813.

In the Lillard case the instruction was ruled had because it authorized a verdict against defendant for failure to stop before entering the intersection regardless of where plaintiff’s truck was at the time. The Grisham case was on the humanitarian doctrine, and Smith v. Wallace was an action in ejectment. The instruction in neither case hypothesized the pleaded and proved facts. Our instruction # 7 locates the vehicles, and authorizes a verdict if the jury finding accorded with defendant’s testimony. We believe and hold that the instruction sufficiently hypothesized defendant’s theory and evidence as to how the accident occurred, which if subscribed to by the jury, authorized a verdict.

In his argument to the jury defendant’s counsel said that if he had been hurt in an automobile accident and couldn’t work at his job, “I would bring in my boss. Of course, the boss might not be a friend of mine, but on the other hand, the boss would know whether or not I could do jQy ⅜ ⅜ ⅜

“MR. RANDOLPH: Well, now Your Honor, that is objected to. Such a witness is equally available to both parties.

“THE COURT: Objection overruled.

“MR. SANDERS: But here we have no one. No one coming in to say that this man is hurt from their own personal observation except himself”.

Plaintiff asserts that such comment was improper and says the adverse ruling to his objection constitutes reversible error. This court exhaustively discussed this question in Adam Hat Stores, Inc. v. Kansas City, Mo.App., 307 S.W.2d 36, 41, 42. It was there ruled generally: (1) No inference may be drawn and no unfavorable comment may be made by counsel on account of the nonproduction of a witness whose testimony is equally available, but (2) “Available” does not mean accessible for service of compulsory proceeds but depends upon such matters as the party’s superior means of knowledge as of the existence and identity of the witness, the relationship borne by the witness to the particular party as would reasonably be expected to make it natural to expect him to favor one party against the other; (3) It is a well established general rule that an employee is not equally available to the opposing party and in such an instance failure to call is properly subject to comment. Then the Adam Hat opinion holds that two city employees were not equally available and the fact was properly subjected to comment. In our case counsel made two comments, one, failure to call any witness with personal knowledge of plaintiff’s alleged injuries, and second, failure to call the “Boss” to give testimony as to plaintiff’s ability to work or as to his injuries. We hold under all these facts that the trial court correctly ruled the comment permissible and such ruling does not, we think, amount to reversible error.

Appellant’s third and last assignment of error is that the court erred in “allowing defendant to argue that plaintiff fabricated a lawsuit”. Defendant’s counsel in his argument pointed out that plaintiff saw his lawyer the day after the accident but did not see a doctor until 15 days after; that he traded his car immediately after the collision, that he wanted money to pay for the new car and that he was not hurt. The trial court overruled objections to these comments. We believe the facts recited as to the dates of the car trade, seeing the lawyer and later a doctor, are supported by the evidence. Counsel in argument is allowed wide latitude in drawing conclusions. In Glore v. Bone et al., Mo., 324 S.W.2d 633, 637, the Supreme Court said :

“The time factor upon which the argument was based was befpre the jury and counsel is allowed a wide latitude in discussing the facts and arguing inferences from the evidence even though the inferences drawn are illogical or erroneous”.

We rule this point against appellant.

No other assignments of error have been presented. We find no reversible error. Therefore, the judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: SPERRY, Commissioner. BROADDUS, Presiding Judge

license: Public Domain

text:
    STATE of Missouri ex rel. William H. WHITTINGTON, Gale E. Lord, William Paul Hunter, D. C., and Jean McCone, Appellants, v. Margaret STRAHM, Respondent.
    No. 23771.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      John H. Foard, Kansas City, for appellants.
    Keith Wilson, Jr., City Counselor, for respondent.
   SPERRY, Commissioner.

Plaintiffs, citizens, taxpayers and electors of Kansas City appealed from the judgment of the Circuit Court of Jackson County denying their petition for a writ of mandamus against defendant, City Clerk of Kansas City.

The facts are not in dispute. Kansas City passed ordinance numbered 27271 which approved a contract for the purchase of equipment for use in adding fluorides to the city water supply. That is the only purpose of the ordinance. It was not an emergency measure within the meaning of the city charter. Three additives then being made to the water being used, were for medicinal purposes and it is stipulated that the use of fluorides is for the medicinal purpose of hardening the teeth of users and the prevention of caries in the teeth. Two other properties were being added to make the water more palatable and usable. Three more were for softening water and other purposes. There are some fluorides naturally in the water as presently being used, from the Missouri River, from which water is taken. It is not contended in the case before us that fluoride is dangerous or harmful to the health of the citizens of Kansas City.

Within forty days after the passage of said ordinance there was filed with respondent, as city clerk, a referendum petition requesting that said ordinance be repealed or submitted to a vote of the electors. This referendum petition consisted of over 1,000 petition papers, each of which was sufficient as to form, containing more than 18,000 names and addresses, being substantially more than ten per cent of the total vote cast for candidates for the office of mayor at the last preceding regular Kansas City, Missouri, municipal election. This procedure conforms to that authorized and prescribed in the charter.

Respondent neither examined said petition nor determined its sufficiency within ten days after it was filed, nor did she certify to the City Council of Kansas City, Missouri, that said petition was sufficient, nor notify the committee of petitioners that she found the petition insufficient. Instead, she refused to perform these acts, in accordance with instructions from the city council and, on June 6, 1962, the city council passed a resolution instructing respondent to take no further action on said petition.

Plaintiffs, as citizens, taxpayers and electors of Kansas City, and as members of the committee of petitioners named in said referendum petition, seek by writ of mandamus to compel defendant to make such examination and make such certificate, or give such notice, all as provided in Section 431 and 443 of the city charter.

Defendant contends that only ordinances which are legislative in nature are subject to referendum under the charter; that ordinance 27271 is not legislative but is administrative in effect; and that it is not subject to referendum.

The fluoridation facilities to be acquired under said ordinance are permanent facilities and the fluoridation of the water supply under said ordinance will affect water supplied to all subscribers from the Kansas City, municipal water system. It is the first ordinance passed by the city council which made possible the purchase of equipment to be used in the addition of fluorides to the water supply.

Section IS of the Charter provides as follows :

“Emergency measures shall take effect immediately upon their passage. An emergency measure is any ordinance passed by the affirmative vote of six members of the council for the immediate preservation of the public peace, property, health, safety or morals, in which the emergency is set for and defined in a preamble thereto; any ordinance calling any election, or providing for the submission of any proposal to the people; any ordinance making an appropriation for the payment of principal or interest of the public debt, or for current expenses of the city government; any general appropriation ordinance; any ordinance relating to the any public improvement to be paid for by special assessment.”

It further provides that all other ordinances shall take effect 10 days after passage unless steps are taken to refer them.

In Section 430 of the charter it is also provided that all except emergency ordinances, are subject to referendum. It is contended that application of these provisions should be made and that it is the clearly expressed intent of the framers of the charter that the ordinance here under review shall be subject to referendum.

In McQuillin on Municipal Corporations (3rd. Edition), Section 16.54 it is said:

“The power of initiative or referendum may be conferred by the sovereignty upon a municipality with respect to any matter, legislative or administrative, within the realm of local affairs; and often the power, as conferred, is extensive, including all ordinances and resolutions and practically all actions that might be taken by a municipal council”.

In 37 American Juris., Municipal Corporations Par. 208 it is said that if a municipal corporation has referendum powers it is a matter of statutory construction to determine the subjects as to which, or when, such powers may be exercised. The legislature may provide that no action of a municipal council of any kind shall go into effect without an opportunity for a referendum.

In Spencer v. City of Alhambra, 44 Cal. App.2d 75, 111 P.2d 910, 912 it is stated that all political power is inherent in the people, that by writing into the charter initiative and referendum laws the people withdrew from the legislative body and reserved to themselves the right to exercise a part of their inherent political power and if the subject there considered had not been excluded from the operation of the initiative, then that power could be exercised.

The framers of the charter clearly indicated the ordinances that are not subject to referendum. The ordinance here involved is not included therein.

Defendant relies on Carson v. Oxenhandler, Mo.App., 334 S.W.2d 394, where the court considered the question of whether an ordinance was subject to referendum and held that it was not. The court said the (general) rule is that only acts legislative in character are subject to referendum. The rule there declared was applicable to. the facts in that case where the words being-construed were: “any ordinance”.

The so called general rule mentioned in Carson v. Oxenhandler, supra, appears to. have its roots in the necessity for a practical interpretation of charters that use only very broad terms such as “all ordinances”' or “any ordinance”. In these situations, if a literal construction were applied, the particular municipality would be placed in. a chaotic situation, for there would be noway to avoid a referendum no matter what the ordinance involved. However, the charter of the city of Kansas City carefully and specifically enumerates those matters, not subject to the referendum and thereby avoids the necessity of a court interpretation contrary to the plain meaning of the language used. These exempted matters are: (1) any emergency ordinance: (2) any ordinance calling for any election: (3) or for the submission of any proposal to the people; (4) any ordinance making any appropriation for the payment of principal or interest in the public debt; (5) or for current expenses of the city government; (6) any general appropriation ordinance; and (7) any ordinance relating to any public improvement to be paid for by special assessment.

What possible chaos could result to the city by giving its people the right to decide through the referendum procedure in view of these numerous and broad exceptions to the referendum power ? Apparently the framers of the charter foresaw none or they presumably would have enlarged the exceptions. Nowhere in the language used in the charter do we find the words “legislative” or “administrative”. Nor do we believe it sound for the court to write these words in the charter where there is no demonstrated necessity therefor.

Aside from any consideration or effect of the general rule applied in Carson v. Oxen-handler, supra, it is apparent that the St. Louis County Charter itself, as effectuated by ordinance, makes the essential distinction between administrative and legislative ordinances as the suhject of referendum. Article VII Section 77 of the Charter generally reserves to the people the power to approve or reject any ordinance of the Council, except emergency measures, but provides in Section 81 of Article VII that the Council effectuate, by ordinance, the reserved right of referendum. Pursuant to Section 81, the Council duly enacted Ordinance No. 134 to implement the initiative, referendum and recall provisions of the Charter. Section 3 of that unchallenged ordinance provides, “Ordinances enacted under and pursuant to administrative and ministerial authority vested in the Council * * * shall not be subject to referendum, * * *”.

The Charter provisions before us bear no resemblance to the above charter provisions as effectuated by ordinance discussed in Carson v. Oxenhandler, supra.

Section IS of the charter specifically provides that but for the exception therein contained and emergency measures (so declared and receiving 6 of 9 votes) shall be subject to referendum. Under the new charter the same provisions are carried over except the ordinance must receive 9 of 13 votes.

It seems clear the framers inserted such provisions in the charter with the intent that if an ordinance subject matter of any kind (except for the specified exemptions) was so controversial it could only get a bare majority council vote, it should be subject to referendum. The charter plainly and unequivocally so declares. It neither makes nor suggests any distinction between matters legislative or administrative.

Therefore, the intent of the charter being clear and the language (Sec. IS) setting it forth plain and unambiguous, there is nothing for the court to do but to declare and apply both the principle and the phraseology.

The judgment is reversed and the cause remanded with directions to the court to issue its writ of mandamus as prayed.

MAUGHMER, C., concurs.

PER CURIAM.

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

HUNTER and CROSS, JJ., concur.

BROADDUS, P. J., dissents.

BROADDUS, Presiding Judge

(dissenting).

I respectfully dissent from the majority opinion herein on the ground that I deem said opinion to be in conflict with the decision of the St. Louis Court of Appeals in the case of Carson v. Oxenhandler, Mo. App., 334 S.W.2d 394, and therefore request that this cause be transferred to the Supreme Court.


author: BROADDUS, Presiding Judge.

text:
    Nora COLLIER, Respondent, v. John R. SIMMS, Appellant,
    No. 23710.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.
    Henry G. Eager, John J. Kitchin, Swanson, Midgley, Jones, Blackmar & Eager, Kansas City, for appellant.
    Robert G. Oberlander, George T. O’-Laughlin, Kuraner, Freeman, Kuraner, Ob-erlander & Lamkin, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

This is an action for damages for personal injuries. Plaintiff, a married woman, recovered a verdict and judgment against defendant in the sum of $6,000. Defendant appealed.

Defendant does not contend that the verdict is excessive. He makes the single point —that the court erred in refusing to give Instruction No. 17, which reads as follows:

“The Court instructs the jury that you may under no circumstances herein consider or award any monetary damages to plaintiff for her physical inability to perform her domestic duties because these matters are legally the subject of an entirely separate claim by her husband.”

Thus the issue is narrowed to this: May a wife, who is not employed outside the home, recover damages in Missouri for impairment of her physical ability to perform her domestic duties?

We take it to be axiomatic that to impair the ability to work of any human being (husband, wife, bachelor or spinster) is to injure a personal right, quite apart from any monetary loss, which might result from such impairment. Any physical inability of a housewife to perform domestic duties must necessarily mean a physical inability to work and labor. Put another way, if a housewife may not be permitted to recover damages for physical inability to perform her domestic duties, then it follows, as night follows day, that a housewife may not recover for physical inability to work and labor. This simply cannot be, and is not the law. If it were the law, then every woman, upon becoming a housewife, would thereby deprive herself of the right to recover for any impairment of her inability to work and labor and perform her domestic duties.

The proposition for which defendant contends ignores the simple fact that a woman’s ability to work and labor, be it in the home, or elsewhere, is as much a personal right to her as a man’s is to him. The fallacy of defendant’s argument lies in his failure to distinguish between the value of domestic services and the personal right to perform them.

The Supreme Court of this State said it all, and said it well, in Perrigo v. City of St. Louis et al., 185 Mo. 274, 84 S.W. 30, 34, in a case involving injury to a married woman:

“To impair the power of any person, whether of body or mind, is an injury to personal right wholly apart from any pecuniary benefit that might be derived from the exercise of the power. As was said by Bleckley, C. J., in Railroad v. Jacobs, 88 Ga. 652, loc. cit., 15 S.E. 826: ‘It seems to us that the loss or material impairment of any power or faculty is a matter for compensation, irrespective of any fruits, pecuniary or otherwise, which the exercise of the power or faculty might produce, and irrespective, also, of any conscious pain or suffering which the loss or impairment might occasion. Every person is entitled to retain and enjoy each and every power of body and mind with which he or she has been endowed, and no one, without being answerable in damages, can wrongfully deprive another, by a physical injury, of any such power or faculty, or materially impair the same. That such deprivation or impairment can'be classed with pain and suffering * * * and, inasmuch as enforced idleness or diminished efficiency in offices of labor is calculated to give rise to mental distress, it is not error to describe the thing by its effects, and call it pain and suffering. But it need not be so called necessarily, and consequently it was not misleading for the court to treat it separately as a subject-matter for compensation in damages, although the plaintiff is a married woman.’ ”

It was proper for the Court to instruct the jury that it was not to consider or award damages to plaintiff arising out of any loss to her husband by reason of any physical inability on plaintiff’s part to perform her domestic and marital duties. And the Court did so instruct the jury, at defendant’s request, in Instruction No. 14.

Had defendant chosen, which he did not, to request an instruction advising the jury that plaintiff could not recover for loss of time relating to her domestic duties, such would have been proper. State ex rel. St. Louis Public Service Co. v. McMullan, Mo., 297 S.W.2d 431, 436; Flintjer v. Kansas City, (Mo.App) 204 S.W. 951, 952. But to categorically, and without qualification, instruct the jury that plaintiff was, in no wise, to be allowed damages for physical inability to perform her domestic duties, would have been error.

The trial judge speaking extemporaneously, at the settling of instructions, stated the law as clearly as it could be stated when he said:

“It is the opinion of the Court that the language as used in that instruction ‘physical inability to perform her domestic duties’, goes to the impairment and inability of the plaintiff to perform her usual and ordinary duties; in other words her ability to work and labor, which is a compensable item to her and which is not properly a subject that is compensable to her husband.”

The judgment is affirmed.

All concur.


author: CROSS, Judge.

text:
    Verne Albert DAVIS, Appellant, v. William M. HILTON, Respondent.
    No. 23679-80.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.
    August V. Spallo and Joseph P. Spallo, Kansas City, for appellant.
    Lester J. Vandever, Deacy & Deacy, Kansas City, for respondent.
   CROSS, Judge.

This is an action for damages for personal injuries plaintiff claims he sustained in a collision between an automobile he was driving and one operated by the defendant. The trial was to a jury which returned a verdict in favor of defendant. Plaintiff appeals from the adverse judgment.

Although plaintiff’s petition contains a prayer for judgment in the amount of $20,000.00, his counsel, in closing argument, asked the jury to return a verdict for plaintiff in the amount of $3500.00. Plaintiff’s good faith demand was thereby reduced from the amount prayed in his petition to the sum of $3500.00. Daly v. Schaefer, Mo.App., 331 S.W.2d 150. Therefore, the amount presently in controversy is within the monetary jurisdiction of this court. V.A.M.S.Const. Article V, Section 13.

Plaintiff confines the scope of review in this appeal to one question: whether the trial court erred in giving Instruction No. 5, at the request of defendant, submitting the affirmative defense of contributory negligence on the part of plaintiff. In presenting his single point plaintiff has seen fit to file only a partial transcript. The evidence is not fully set out therein and is not in question and answer form. The only facts before us, as reflected by the record, are contained in a short narrative entitled “The Evidence”, which plaintiff has incorporated in the transcript.

From the narrative in the transcript and from plaintiff’s brief we learn that prior to the collision plaintiff was traveling westbound on Highway 169 and the defendant was traveling eastbound on the same highway, both parties approaching the intersection of Highway 169 with Highway 71 at Riverside, Missouri. At that intersection, where Highway 71 runs north and south, plaintiff made a left turn when the traffic light was green for east-west travel, and headed south on Highway 71. Although Highway 169 west of the intersection is generally a two lane highway with only one lane for eastbound travel, it widens from one lane eastbound to two lanes eastbound at a point “quite some distance west of the intersection”. It is plaintiff’s evidence that when he was making his left turn, the defendant, who had been traveling in the inside eastbound lane of Highway 169, “switched” to the outside lane when he was 6 or 7 car lengths from the intersection, drove around some cars which were stopped in the inside lane, proceeded into the intersection and drove his automobile into plaintiff’s. It is defendant’s evidence that when he reached the point west of the intersection where Highway 169 widens from one lane eastbound to two lanes eastbound he remained in the outside, or southernmost portion of Highway 169 as he approached the intersection of Highway 71; that he never at any time was in the inside (northernmost) eastbound lane of Highway 169 from the point where it widens into two lanes for eastbound travel; that as he so traveled into the intersection, plaintiff turned suddenly in front of him; and, that he applied his brakes but was unable to avoid the collision.

The case was tried and submitted on behalf of plaintiff under the theory of primary negligence on the part of defendant, in suddenly switching from the inside to the outside lane of Highway 169, and running into plaintiff’s vehicle as he was making the left hand turn. Plaintiff’s verdict-directing Instruction No. 1 is essentially a hypothesi-zation of the evidence given on his behalf as above set out.

It is plaintiff’s complaint that the trial court erred in giving defendant’s Instruction No. 5 because “the instruction failed to locate the lane of travel of respondent’s (defendant’s) vehicle on Highway 169 as respondent approached the intersection of 169 and 71 highways”. Amplifying the point, plaintiff says that “Respondent’s lane of travel was an essential factor in the case and hotly contested and failure to include the lane of travel in the instruction permitted the jury to find that appellant was required to keep a lookout for respondent’s vehicle in the inside lane of Highway 169 when such vehicle could not present a hazard to appellant”. The text of Instruction No. 5 reads as follows:

“The Court instructs the jury that if you believe that at the time and place mentioned in evidence, the plaintiff, Mr. Davis, was driving a Chevrolet automobile in a westerly direction on Alternate U. S. Route 169, and if you find that the defendant was operating his Pontiac automobile in an easterly direction on said Route and that defendant was proceeding at a speed of at least 30 miles an hour and approaching the intersection of Route 71, and if you further find after plaintiff entered the intersection of said Route 169 and Route 71 the plaintiff turned his vehicle to the left and across the center line of Route 169 and into the direct and immediate path of defendant’s automobile, if so, and that at the time plaintiff so turned his automobile the automobile of defendant was so close to said intersection as to constitute an immediate hazard of collision, if you so find, and if you find that such action upon the part of the plaintiff in so turning was negligent, if so, and if you further find that plaintiff failed to exercise the highest degree of care to keep and maintain a lookout for eastbound traffic and was thereby negligent, and such negligence of plaintiff in either of said regards, if so, directly caused or contributed to cause the collision and plaintiff’s injuries, if any, then you are instructed that the plaintiff cannot recover in this case and your verdict shall be in favor of the defendant, Mr. Hilton, and this is true even though you may also find that defendant was negligent as submitted in the other instructions given you herein”.

The quoted instruction is based on and is declaratory of (1) plaintiff’s statutory duty, in making the left turn shown in evidence, to “yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard”; (Section 304.021(3), V.A.M.S.) and (2) his duty to maintain a constant and vigilant lookout, particularized in the instruction as the duty “to exercise the highest degree of care to keep and maintain a lookout for eastbound traffic”. If factually supported, the instruction is a correct and proper statement of the law.

It is plaintiff’s contention that since defendant’s whole case was predicated on the theory that defendant was “always in the outside lane, never in the inside lane”, and did not “swing into the outside lane * * * six or seven car lengths west of the intersection”, Instruction No. 5 should have contained those facts as a hypothesis prerequisite to a finding by the jury that plaintiff was contributorily negligent. Plaintiff urges that the general hypothesis contained in the instruction erroneously permitted the jury to find him contributorily negligent under the facts constituting his own theory of the case, to-wit, that as he started to make his left turn, defendant was still in the inside lane behind some cars which had stopped in that lane, but that defendant swung out into the outside lane six or seven car lengths back of the intersection and proceeded into the intersection and into collision with plaintiff’s vehicle. Plaintiff submits that “under these circumstances he was entirely justified in making his left turn to go through the intersection”. Plaintiff further complains of the instruction that it led the jury to believe that “no matter which lane respondent (defendant) was in he could present an immediate danger of a hazard and that appellant was required to watch for cars coming from the west on Highway 169 no matter where they might be on the highway”.

In order that plaintiff’s appeal theory be thoroughly understood, we indulge in one more quotation from his argument, as follows: “The jury could very well have believed that respondent was still in the inside lane 6 or 7 car lengths from the intersection, as appellant contends and yet under this instruction as drawn still find the appellant guilty of contributory negligence. Surely this is not the law. Does the law require that a person wanting to make a left turn, when there are cars stopped in the inside lane facing him, wait before proceeding until other cars in that same lane come to a stop behind the stopped cars ? Does he have to assume that the oncoming cars will swing into the outside lane when they are six or seven car lengths from the intersection? If that is what the jury wants to believe the law is, then this instruction lets them believe it”.

From all the foregoing it is apparent that plaintiff concedes the propriety of Instruction No. 5 as it relates to his duty to keep a lookout and yield to cars in the outside lane. We are here concerned only with the question of plaintiff’s duty of care in the situation that existed according to his own theory and evidentiary version of the case, as such question relates to the sufficiency of the hypothesization of facts in the instruction.

According to plaintiff’s testimony, defendant swung out from the inside lane at a point 6 to 7 “car lengths” back of the intersection. Since plaintiff chose to use the factor of “car length” as a unit of measure, we deem it appropriate and within our judicial prerogative to translate the distance estimated by him as “6 to 7 car lengths” into terms commensurate with the standard unit of measure — the linear foot. In Nored v. St. Louis Public Service Company, Mo.Sup., 319 S.W.2d 608, the Supreme Court stated that it may not take judicial notice of a particular automobile’s length but that “we do know that its length did not exceed 20 feet and that the overhang of a street car is about 2 feet”. And, in Jones v. Fritz, Mo.App., 353 S.W.2d 393, the court said, “But, since we need not and should not pretend ignorance concerning matters of common knowledge * * * we may and do know judicially that it is several (certainly no less than 6) feet from the front end of a Ford automobile, of the vintage driven by instant plaintiff, to the driver’s seat”. The court ruled to like effect, in Bauman v. Conrad, Mo.App., 342 S.W.2d 284. But, more to the point, and in reference to a matter not involving the dimensions of a particular “car”, the Supreme Court has clearly held that courts may take judicial notice of units of distance that have come into general use, including “car lengths”. In Lueders v. St. Louis and San Francisco Railroad Co., 253 Mo.Sup. 97, 161 S.W. 1159, the Supreme Court said, “Since railways measure the distance from mile to mile by the number of telegraph poles, directing public attention to the system and its resulting information by painting upon the poles, and a nomenclature has come into general use in which 'telegraph poles’ and ‘car lengths’ are used as units of distance, the courts may assume, without subjecting themselves to the imputation of arrogance, that a telegraph pole ordinarily represents a distance of as much as 150 feet;”. Under the foregoing authority, and in the exercise of our judicial prerogative, we assume, for the purposes of this case, that “6 or 7 car lengths” would be at least the distance of 100 feet. Our assumption is based on the fact that automobiles are daily observed in great numbers by the general public, and that their dimensions are a matter of such common knowledge and understanding that “car length” has become a standard and universally used unit of measure to approximate distance.

Thus, even if defendant drove his car from the inside lane to the outside lane in. the manner and at the place plaintiff says he did, it is evident that defendant traveled at least 100 feet in the outside lane directly toward the intersection immediately prior to the collision. We believe that it is immaterial, on the question of the submissibility of plaintiff’s contributory negligence tO' the jury, whether defendant was in the outside lane continuously, or entered it from the inside lane 100 feet back of the intersection. In either case, plaintiff had the opportunity to look out for and see defendant’s car in the outside lane throughout the entire interval of time it took defendant to travel the stated minimum distance of 100 feet, and to act accordingly. Furthermore, there is ample evidence to support a finding by the jury that as plaintiff made his turn to the left and into the path of defendant’s automobile, that vehicle was so-close to the intersection as to constitute an immediate hazard of collision.

It must be remembered that plaintiff had the incumbent duty, as a motorist, to exercise the highest degree of care at the time and place in question and to keep a constant and vigilant lookout for other vehicles. Furthermore, he was specifically charged by the statute to yield the right of way to any vehicle “approaching from the opposite direction which is so close to the intersection as to create immediate hazard”. The record discloses nothing in the nature of an obstruction anywhere in the vicinity of the intersection that would obscure plaintiff’s view of defendant’s automobile during the entire time it traveled the minimum distance of 100 feet in the outside lane, which, by plaintiff’s admission, was “dear”. The record reveals no exculpating fact or circumstance to excuse plaintiff from discovering the approach of defendant in time to have yielded the right of way as the law requires. Even if defendant was originally in the inside lane, as plaintiff claims, the evidence before us fails to show that plaintiff did not or could not see the movement ■of defendant’s automobile to the outside lane before it traveled the final 100 feet, into the intersection. Whether plaintiff failed to look at a time when it would have been possible to look effectively, or failed to observe defendant’s vehicle approaching is not clear from the evidence. In either event, the jury could reasonably find that plaintiff’s conduct was negligent. See Major v. Davenport, Mo.App., 306 S.W.2d 626. We further note that there is no fact or circumstance in evidence to show that defendant did not have the right to change his course from the inside lane and proceed to the intersection in the outside lane so long as he could do so in the exercise of the highest degree of care.

Plaintiff has suggested, as we have noted, that it was not his duty “to watch for cars coming from the west on Highway 169 no matter where they might be on that highway”, and that he did not have to “assume that the oncoming cars will swing (from the inside lane behind stopped cars) into the outside lane when they are 6 or 7 car lengths from the intersection”. Plaintiff’s suggested concept of the law is unrealistic, in view of the stringent obligation of duty incumbent upon a motorist operating an automobile on the public highway, particularly when entering an intersection to make a left turn in front of oncoming traffic. “In the case of an automobile operating upon the highways of this state there is imposed upon the driver a continuous statutory duty to exercise the highest degree of care at all times and all places thereon to keep a lookout for persons thereon and in every respect”. (Our italics.) Snider v. King, Mo.App., 344 S.W.2d 265; Faught v. Washam, 365 Mo.Sup. 1021, 291 S.W.2d 78.

For'all the foregoing reasons it is necessarily our ruling that Instruction No. 5 is not erroneous. To rule otherwise would amount to a declaration that as a matter of law plaintiff was not contributorily negligent under the state of facts shown by his evidence. This we can not do under the record before us. The issue was for the jury under the evidence of both parties and was submitted to them by appropriate hypothesis.

Plaintiff relies on three cases: Hooper v. Conrad, 364 Mo.Sup. 176, 260 S.W.2d 496; Carlson v. St. Louis Public Service Co., Mo.Sup., 358 S.W.2d 795; and Snider v. King, Mo.App., 344 S.W.2d 265. We are urged to apply the principle stated in Hooper v. Conrad, supra, that “Where the evidence presents two or more divergent sets of essential facts, under one or more of which plaintiff would be entitled to recover and under one or more of which he would not, then a verdict-directing instruction or instructions given in his behalf should hypothesize, either by recital or by reference to other instructions, the facts essential in law to support the verdict. In like manner, verdict-directing instructions in behalf of the defendant should recite on their face or by reference to other instructions any essential fact or facts shown or not shown which will defeat plaintiff’s right of recovery”. The quoted statement is not applicable in the present case because, although divergent sets of facts are shown in evidence by the two parties in respect to the position and movement of defendant’s vehicle, prior to the time it traveled the last 100 feet in the outside lane, there is a submissi-ble issue of plaintiff’s contributory negligence under either version of the evidence.

The Carlson and King cases are not persuasive on the question here involved. The former is a case submitted entirely on the humanitarian doctrine. No issue of contributory negligence was considered. The King case is not in point because the fact situation affecting the issue of plaintiff’s contributory negligence was materially different from the facts in this case. There was uncontradicted evidence in King- that an embankment obscured the plaintiff’s view of the intersecting highway. “Each case must be ruled by its own particular facts”. Carpenter v. Kessner, Mo.App., 330 S.W. 2d 270.

The judgment is affirmed.

All concur.


author: HUNTER, Judge.

text:
    Forrest D. WISE, Respondent-Plaintiff, v. Edwin L. TOWSE, Appellant-Defendant. Bernice WISE, Respondent-Plaintiff, v. Edwin L. TOWSE, Appellant-Defendant. Mary Christine MOORE, Respondent-Plaintiff, v. Edwin L. TOWSE, Appellant-Defendant.
    Nos. 23747-23749.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      William H. Woodson, Spencer, Fane, Britt & Browne, Kansas City, for plaintiffs.
    Arthur H. Stoup, I. L. Kraft, Koenigs-dorf, Kaplan, Kraft, Stoup & Fox, Kansas City, for defendant.
   HUNTER, Judge.

This is an appeal by three plaintiffs in three separate actions that were consolidated for trial and for appeal. The three suits are for damages for alleged personal injuries arising out of a motor vehicle collision. Our examination of the record discloses that each plaintiff has limited his prayer for damages to less than $15,000; namely, Forrest Wise $7,500; Bernice Wise $10,000, and Moore $2,500, and that the amount in dispute in each case is less than $15,000. Hence, this court has jurisdiction of the appeals. Section 477.040 RSMo 1959, V.A.M.S.

Plaintiff, Forrest Wise; his wife, plaintiff, Bernice Wise; and his ward, plaintiff, Mary Christine Moore, an infant; and three others on May 2, 1958, were passengers in a slow moving, eastbound 1957 Cadillac automobile owned and operated by Joseph Gore on U. S. Highway 40 several hundred feet west of its intersection with Noland Road in Jackson County, Missouri, when the front end of an eastbound 1954 Plymouth automobile operated by defendant, Edwin L. Towse, collided with the rear of the Cadillac.

All three plaintiffs claimed damages for alleged personal injuries resulting from the collision. To each petition in his answer defendant stated, “and though defendant expressly denies that plaintiff was damaged or injured as a direct and proximate result of said collision defendant admits defendant is liable to plaintiff for such actual damages, if any, as were sustained by plaintiff as a direct and proximate result of said collision.”

The consolidated cases were tried to the jury on the issue of whether plaintiffs were injured as a result of this rear end collision. The evidence on the respective issues of personal injury was conflicting. The defendant testified he was traveling between 35 and 40 miles per hour when he was only 50 to 75 feet from the Cadillac and first noticed it was “stopped”. He applied his brakes. He admitted the resultant collision “was severe”. By stipulation of the parties, the damage to the Plymouth was $398.00 and to the Cadillac was $1,018.00. Plaintiffs adduced considerable, albeit arguably weak, medical and other testimony to support their claims of some personal injuries. Defendant’s evidence, mostly medical, was in refutation of such claims.

The jury, by its separate verdicts, was unanimous in favor of the defendant in the Forrest Wise and the Moore cases and ten to two in favor of the defendant in the Bernice Wise case. The trial court in ruling favorably to plaintiffs on the plaintiffs’ joint motion for a new trial for specified instruction errors we shall proceed to discuss, refused to rule that the verdicts were against the weight of the credible evidence.

Did the trial court err as defendant contends in granting all three plaintiffs a new trial on the issue of damages for its assigned reason that Instruction No. 3 wrongfully withdrew from the jury plaintiffs’ evidence as to the value of x-rays of the plaintiffs taken at the Osteopathic Hospital ? The trial court had assigned as its reason for giving Instruction No. 3 that there was no testimony of the reasonableness of the charges for these x-rays. However, there was evidence to the effect that the charges for these x-rays were $25.00 for those of Forrest Wise, $30.00 for those of Bernice Wise, and $7.50 for those of Mary Christine Moore; that Forrest Wise had paid for all of them in the total sum of $65.00; and that the hospital maintained a regular price list for x-rays and the prices of these charges are those on this price list.

Quite recently, in the case of Hay v. Ham, Mo.App., 364 S.W.2d 118, we ruled that evidence of the nature present here is substantial evidence of the reasonableness of the charges for x-rays. The fact that these x-rays were billed at the rate on the hospital’s regular price list and that plaintiff Forrest Wise paid that bill is subject to a fair inference that the charges made and paid were reasonable. Myers v. Karchmer, Mo.Sup., 313 S.W.2d 697(15). Stewart v. George B. Peck Co., 234 Mo.App. 864, 135 S.W.2d 405(8).

Defendant impliedly agrees with what we have said above by arguing that although the trial court may have assigned the wrong reason for giving Instruction No. 3 the instruction was properly given because there is no evidence that these x-rays were necessary.

The general rule is that charges for medical services such as those before us, which are items of special damage, must be supported by substantial evidence that they were reasonable and the services reasonably necessary in order for them to be recoverable. Spica v. McDonald, Mo.Sup., 334 S. W.2d 365; Girratono v. Kansas City Public Service Co., 363 Mo. 359, 251 S.W.2d 59 (9-10); Heibel v. Robison, Mo.App., 316 S.W.2d 238. However, there is such substantial evidence in the record before us. While there is no direct testimony that these x-rays were necessary, such is a reasonable inference from the evidence showing that plaintiffs sought medical diagnosis and treatment for injuries resulting from the accident, and their examining doctor sent them to the hospital to have the x-rays made. Obviously he thought these x-rays necessary to his diagnosis and treatment or presumably he would not have prescribed that they be made. We should ascribe honest motives, good faith and proper conduct in such matters, at least to the extent of permitting a jury, if it wishes to do so, to infer as a reasonable inference that these medically prescribed x-rays were sufficiently necessary to permit reimbursement of their cost as an element of damage. Under the reasonable man test the defendant could be held to foresee that as a result of his negligence in so forcibly striking the rear end of the car in which plaintiffs were passengers the plaintiffs would be caused to seek medical examination, including x-rays, if prescribed by the examining doctor. The jury could find that these special damages-were sustained by plaintiff Forrest Wise as a direct and proximate result of the collision, and defendant has admitted in his answer that “defendant is liable to plaintiff for such actual damages, if any, as were sustained by plaintiff as a direct and proximate result of said collision.” We conclude the trial court committed reversible error as to plaintiff Forrest Wise in giving Instruction No. 3. The jury should not have been instructed to disregard the evidence of his payment for the x-rays, and it was error to withdraw it from the jury’s consideration.

Defendant says if plaintiff Forrest D. Wise was found not to have received any injury by the jury as is evidenced by the jury’s verdict then he wasn’t prejudiced by Instruction No. 3 withdrawing from the jury consideration of his x-ray expense. However, the x-ray expense was an item of special damages to Forrest Wise which he supported by evidence, and the jury should have been allowed to consider that evidence. Even though the jury might find Forrest Wise suffered no actual injury to his person, if through defendant’s admittedly negligent act of causing the collision this special damage proximately resulted to Forrest Wise, he is entitled to recover for it, for in such an instance actual loss has resulted from the commission of the negligent act. Defendant cites the cases of Eickmann v. St. Louis Public Service Co., 363 Mo.Sup. 651, 253 S.W.2d 122; Biscoe v. Kowalski, Mo.Sup., 290 S.W.2d 13; and Merritt v. Mantony, Mo.Sup., 353 S.W.2d 768, as pre-eluding any recovery of medical expenses incurred if no actual injury to the person occurred. However, the Eickmann and Bis-coe cases did not concern any question of special damage occasioned by and resulting from an admittedly negligent act, and as we view them are thus distinguishable. The Merritt case is also distinguishable in that the jury’s verdict revealed the jury failed to reach the issue of damages and hence any error concerning the correct amount of damages was not prejudicial. In the case before us, the sole issue before the jury was the issue of damages or injury resulting from the admittedly negligent act.

There was no corresponding error concerning Instruction No. 3 as to the other two plaintiffs for they did not pay or contribute to the payment of the x-rays, and made no claim of any special damage for such items.

Since plaintiff Forrest Wise is entitled to a new trial on the issue of damages only, what we proceed to discuss involves the remaining two plaintiffs’ claims that they are entitled to a new trial because the trial court was correct in holding Instruction No. 2 to be erroneous as depriving them of a judgment for nominal damages to which they were entitled as a matter of law.

Instruction No. 2 contained a typical burden of proof paragraph and further provided, “ * * * you should not allow any recovery to plaintiffs, or any of them, for any injuries or damages which are based upon mere speculation or conjecture and which plaintiffs, or any of them, have failed to prove by the preponderance or the greater weight of all the credible evidence.” The defendant’s position is that plaintiffs were not entitled as a matter of law to recover at least nominal damages, citing Eickmann v. St. Louis Public Service Co., 363 Mo.Sup. 651, 253 S.W.2d 122, and Biscoe v. Kowalski, Mo.Sup., 290 S.W.2d 133.

At the outset we note that plaintiffs did not offer any instruction concerning their right to nominal damages, and their verdict directing instructions presented only their claims for substantial actual damages. Plaintiffs did not object to the form of verdict instruction given. This form of verdict instruction if literally followed precluded any award for nominal damages. In its pertinent portion it read: “We the jury find the issues for the defendant and against plaintiff -. - Foreman.” However, in seeking to avoid the effect of not having objected to the form of verdict instruction, and not having offered any instruction on nominal damages, plaintiffs assert Instruction No. 2f given over their objection, under our law was required to direct at least a nominal verdict for each of plaintiffs, citing Stroud v. Masek, Mo.Sup., 262 S.W.2d 47; Hotchner v. Liebowits, Mo.App., 341 S.W.2d 319; Wente v. Shaver, 350 Mo.Sup. 1143, 169 S.W.2d 947, 145 A.L.R. 1176; and Heuer v. John R. Thompson Co., Mo.App., 251 S.W.2d 980. (See, also, King v. City of St. Louis, 250 Mo.Sup. 501, 157 S.W. 498.)

It is true that an award of nominal damages is a substantial thing, for it normally decides the incident of costs, a major item particularly these days when the cost of the jury alone may exceed $75.00 per day. Hesse v. Imperial Electric Light, Heat & Power Co., 144 Mo.App. 549, 129 S.W. 49.

We are constrained to follow what we believe to be the rule announced by our Supreme Court in its latest discussion of the pertinent point in Biscoe v. Kowalski, supra. In that case, as here, the vehicle driven by defendant rear ended the vehicle in which plaintiff was a passenger. There, for the purpose of what it said, the Supreme Court assumed defendant was negligent as a matter of law, and here the defendant admitted its negligence. There, as here, the contention was that no personal injury resulted from the collision occasioned by defendant’s negligence. We quote from the court’s opinion, 290 S.W.2d loe cit. 137-138: “It is argued that even had there been no evidence of actual injury plaintiff was entitled to judgment for at least nominal damages. In support of this argument plaintiff has cited Wente v. Shaver, 350 Mo. 1143, 169 S.W.2d 947, 145 A.L.R. 1176, an action under the wrongful death statute; King v. City of St. Louis, 250 Mo. 501, 157 S.W. 498, in which it was obvious there was substantial actionable injury and loss of earnings; Heuer v. John R. Thompson Co., Mo.App., 251 S.W.2d 980, action for failure to comply with the ‘service letter’ statute; Thompson v. St. Louis Public Service Co., Mo.App., 242 S.W.2d 299, action for assault and battery where there was actual physical injury, and it was said humiliation and mental suffering could be inferred from the character and extent of plaintiff’s injuries; Greenlake Inv. Co. v. Swarthout, Mo.App., 161 S.W.2d 697, action for defamation of title; and Carpenter v. City of Versailles, Mo.App., 65 S.W.2d 957, action for wrongful discharge of sewage on plaintiff’s real property. We believe these cases are not applicable here. Plaintiff’s counsel did not request the direction of a verdict for plaintiff on the theory that plaintiff was entitled to but nominal damages. Plaintiff herein sought recovery of substantial damages for an alleged actual physical injury.

“It is said in Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122, that the three elements of plaintiff’s claim were negligence, causation, and injury. In that case defendant admitted liability in the collision of its vehicles but denied that plaintiff had sustained injury. This court correctly said there were left open the jury questions — did plaintiff sustain injury, and, if so, what amount of damages would reasonably compensate her.

“It was said that actionable negligence implies injury. This, in an action for personal injury allegedly sustained in the negligent derailment of defendant’s train. McGuire v. Chicago & A. R. Co., Mo.Sup., 178 S.W. 79, L.R.A.1915F, 888. Actionable negligence involves, (1) the existence of a duty on the part of the defendant to protect plaintiff from an injury; (2) the failure of the defendant to perform the duty; and (3) the injury to the plaintiff from such failure. When these elements concur, they constitute actionable negligence. McGuire v. Chicago & A. R. Co., supra. See also Wolfmeyer v. Otis Elevator Co., Mo.Sup., 262 S.W.2d 18. Otherwise expressed, the essential factual elements of a claim for personal injury due to negligence are — negligence (the failure of defendant to perform a duty to protect plaintiff from harm), causation, and injury. Eickmann v. St. Louis Public Service Co., supra; Knight v. Richey, 363 Mo. 293, 250 S.W.2d 972. We hold that the trial court correctly refused to direct a verdict for plaintiff.”

As we interpret the above quoted language it is a clear ruling that to have an action for personal injury occasioned by negligence some injury must actually occur to plaintiff as a result of defendant’s failure to perform his duty of exercising the requisite care to protect plaintiff from injury.

Our interpretation of Biscoe v. Kowalski, supra, is strengthened by its citation with approval of Eickmann v. St. Louis Public Service Co., supra. In the Eickmann case plaintiff was a passenger on defendant’s bus which was involved in a collision. The jury was instructed that “the defendant admits its liability in this case for the collision of its buses shown in the evidence, and your verdict should therefore be in favor of the plaintiff and against the defendant if you find that Mrs. Eickmann sustained injury and damage as a direct and proximate result of said collision. * * * and unless you find that she was so injured then your verdict should be in favor of defendant.” While the court did not have before it any specific contention that plaintiff was entitled at least to nominal damages even if there was no personal injury to a plaintiff, it unequivocally ruled that, 253 S.W.2d loe. cit. 131: "The three elements of plaintiff’s claim were: negligence, causation, and injury.” Both the Biscoe case and the Eickmann case were cited with approval in Schaefer v. Accardi, Mo.Sup., 315 S.W. 2d 230, 233.

We can only conclude our Supreme Court holds that in a claim for damages for personal injuries resulting from another’s negligence, an admission by defendant that its negligence caused the collision which plaintiff claims caused his or her alleged injuries is not sufficient to entitle plaintiff as a matter of law to at least nominal damages because it fails to take into account the third necessary element of the action, namely, that some resulting injury to plaintiff must be proved or admitted. This is in accord with such text authorities as Prosser, Law of Torts (2nd Ed.), Chapter 6, page 165, “Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of the plaintiff’s case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred.” * * * “Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.”

For the foregoing reasons, the judgment granting plaintiff Forrest D. Wise a new trial on the issue of damages is affirmed and the cause is remanded accordingly; and the judgments granting plaintiffs Bernice Wise and Mary Christine Moore new trials are reversed and their causes are remanded with directions to the trial court to enter judgment in each of the two of them for defendant in accordance with the jury verdicts rendered.

It is so ordered.

All concur.

      . For a discussion of the rule as to other kinds of action, see Hotchner v. Liebowits, Mo.App., 341 SW.2d 319(4) (Contracts) ; Seelig v. M. K. & T. Ry. Co., 287 Mo.Sup. 343, 230 S.W. 94, 95 (Value of services); State ex rel. Armour Packing Co. v. Dickmann, 146 Mo.App. 396, 124 S.W. 29 (Suit on official bond); Wente v. Shaver, 350 Mo.Sup. 1143, 169 SW.26 947; Stroud v. Masek, Mo.Sup., 262 S.W. 2d 47 (Wrongful death); Curd v. Reaban, Mo., 232 S.W.2d 389 (Ejectment).


text:
    William D. WILKERSON, Respondent, v. Larry E. SMITH, Appellant.
    No. 23796.
    Kansas City Court of Appeals. Missouri.
    April 1, 1963.

      William H. Sanders, Dean F. Arnold, Walter F. Moudy, Caldwell, Blackwell, Sanders & Matheny, Homer A. Cope, Kansas City, for appellant.
    John I. Moran, Lester J. Vandever, Deacy & Deacy, Kansas City, for respondent.
   BROADDUS, Presiding Judge.

This is an action for damages for personal injuries. It arises from a collision between a Chevrolet automobile operated by plaintiff and an Oldsmobile automobile operated by defendant.

Plaintiff had a verdict and judgment in the sum of $3350. The jury found against defendant on his counterclaim wherein he sought the sum of $50,000. Defendant appealed to the Supreme Court and that court transferred the case to this court upon the authority of Jameson v. Fox, 364 Mo. 237, 260 S.W.2d 507, 59 A.L.R.2d 80.

The accident happened at 6:30 a. m. on October 19, 1960, at the intersection of Booth Avenue and U. S. Highway 40 in Jackson County, Missouri. Highway 40 is a four lane highway with two lanes for eastbound traffic and two lanes for westbound traffic. Booth Avenue is a blacktop road which forms a junction with the north side of Highway 40. There is a slight grade going east on Highway 40 which causes a gentle crest located 344 feet east of Booth. A viewer at Highway 40 and Booth can see cars approaching from the east a distance of 550 feet away.

All witnesses agree that the collision occurred when the plaintiff, who had been traveling east on Highway 40, turned left and in front of defendant’s westbound automobile. All agree that the collision occurred in the outside or north lane for westbound traffic. The front of defendant’s automobile came into contact with the right center and right rear of plaintiff’s automobile. The other pertinent facts are in dispute. We will set out plaintiff’s version of how the accident occurred when we discuss the points presented by defendant.

Defendant’s testimony as to how the collision arose is that he was going 40 miles per hour when he saw plaintiff’s automobile turn left and into his lane at a speed of 10 to IS miles per hour; that he was only 70 feet away when plaintiff began to make his turn; that plaintiff did not signal a left turn, nor did he stop his automobile prior to making his left turn.

Defendant contends that plaintiff’s Instruction 2, which submits defendant’s humanitarian negligence, was erroneous in permitting plaintiff to recover on conflicting factual theories.

In this case the evidence presented two divergent sets of essential facts, and two irreconcilable theories. Cases are legion supporting the proposition that the plaintiff, after obtaining a verdict, is entitled to the benefit of all evidence favorable to his theory and to all favorable inferences to be drawn therefrom. Price v. Nicholson, Mo., 340 S.W.2d 1. The law is also clear that, on review, the evidence must be viewed in the light most favorable to the party at whose instance and request the instruction was given. Ferguson v. Betterton, 364 Mo. 997, 270 S.W.2d 756.

Now, let us consider the evidence supporting plaintiff’s theory. Plaintiff testified that he was eastbound on U. S. Highway 40, intending to turn left and head north on Booth Avenue. Plaintiff turned on his blinker to signal a left turn, when he was about 150 or 200 feet back west of the intersection. As plaintiff approached the intersection, he slowed to permit oncoming traffic to clear the intersection. After the intersection had cleared, plaintiff looked east along Highway 40, and saw that there were no other westbound cars between his position and the crest of the hill to the east. Plaintiff, whose automobile had never stopped moving, went into his turn at approximately three or four miles per hour. Plaintiff had traveled completely across the south lane for westbound traffic and the front of his car was entering the north lane for westbound traffic when plaintiff first observed the defendant’s automobile coming over the crest of the hill to the east. Plaintiff continued at the same rate of speed until defendant had covered approximately half of the distance between the hillcrest and plaintiff’s position, at which time plaintiff realized for the first time that defendant was traveling approximately 60 or 65 miles per hour. At that time plaintiff accelerated his speed. At the time of the impact, plaintiff’s automobile was almost completely north of the north edge of Highway 40, and only the rear four feet projected back into the north lane for westbound traffic. The damage to plaintiff’s automobile was confined to the right rear quarter panel. Plaintiff testified that at the time he first saw defendant’s oncoming car, defendant was in the north lane for westbound traffic, and that there were no other westbound automobiles in front of or to the left of defendant’s automobile. Defendant continued moving west in his right-hand lane and the impact took place in defendant’s right-hand lane. Defendant did not swerve to his left, despite the fact that his left-hand lane for westbound traffic was completely free and clear of other traffic.

Defendant argues that the evidence presented two conflicting sets of facts, and that for this reason Instruction 2 should have hypothesized additional facts. In the case of Speak v. Pryor, Mo.App., 355 S.W. 2d 431, this court decided these identical issues. The Speak case arose from an intersection collision, and plaintiff submitted his case to the jury under the humanitarian theory. There was a strong conflict between the testimony of the parties, and the evidence presented conflicting and contradictory versions of the collision. This court approved plaintiff’s humanitarian instruction, which is indistinguishable from plaintiff’s Instruction 2 submitted in this case.

The case of Davis v. Quality Oil Company, Mo., 353 S.W.2d 670, cited by defendant, is clearly not in point. The Davis case merely holds that plaintiff failed to prove every element of his humanitarian submission. There is no such failure of proof in the case at bar.

Miller v. Riss and Company, Mo., 259 S.W.2d 366, also cited by the defendant is not in point. The Miller case held that plaintiff may not submit his case under two contradictory theories of recovery. There is no contradictory submission in the instant case. Instruction 1 submitted defendant’s primary negligence of excessive speed and failure to keep a lookout. Instruction 2 submitted humanitarian negligence in failure to swerve. There is nothing contradictory between these two theories.

Defendant also contends that Instruction 2 was erroneous in that it failed to define where plaintiff’s zone of imminent peril began. Defendant concedes in his brief that “As a general rule plaintiff’s humanitarian, instruction does not need.to hypothesize the place where plaintiff entered into a position of peril.” Defendant then claims to find an exception to this general rule in Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. The Smithers decision is distinguished from our present case in Blanks v. St. Louis Public Service Company, Mo.App., 342 S.W.2d 272, 1. c. 276, where the court states:

“What is implied in defendant’s argument is that the instruction should have specified the place where plaintiff came into a position of imminent peril. As stated in Harrington v. Thompson, Mo., 243 S.W .2d 519, 527, any such requirement ‘ * * * tends to encroach upon the province of the jury, places an unnecessary burden upon the plaintiff, and may tend to confuse rather than to clarify.’ The identical argument made here by defendant was likewise made by it in Newman v. St. Louis Public Service Co., Mo., en banc, 244 S.W.2d 45, where the instruction referred to plaintiff’s position as ‘on Broadway.’ The court there pointed out (loe. cit. p. 48) that ‘This instruction required the jury to find that plaintiff was in a “position of imminent peril,” and that this was the ultimate and issuable fact for the jury to determine. These are ordinary English words’. (citations omitted) The instruction in this case required a similar finding. It is not reasonable to believe that an intelligent jury would have been misled into thinking, as defendant contends, that plaintiff came into a position of peril the moment she stepped off the west curb of Broadway, particularly in view of the fact that by another instruction the jury was told that ‘ * * * by the term “imminent peril” is meant a place where there is certain danger and not a place where there is just a mere possibility of an injury occurring.’ We hold that the instruction is not vulnerable to the attack made upon it. Price v. Nicholson, Mo., 340 S.W.2d 1.”

Instruction 2 requires a finding that “Wilkerson turned to his left, and thereafter became,and was in a position of imminent peril * * This is sufficient hypothesization of - “imminent peril”, and has been approved in Price v. Nicholson and Speak v. Pryor, supra.

It may be observed that the term “imminent peril” was further limited and defined by defendant’s Instruction 8. The definition of “imminent peril” contained in defendant’s Instruction 8 has been held by Missouri courts to be sufficient for a humanitarian submission. Price v. Nicholson; Blanks v. St. Louis Public Service Company, supra.

In support of his contention, defendant cites the cases of Harrington v. Thompson, 243 S.W.2d 519 and Dwinell v. Thompson, Mo., 243 S.W.2d 988. In each of these cases the court approved humanitarian submissions made by the respective plaintiffs, and the respective cases were each distinguished from the Smithers case, which is relied upon by defendant. In the Harrington case, supra, the court stated at page 525 of 243 S.W.2d:

“Just when one, under the evidence in any particular case, comes into and is in a position of imminent peril is a question for the jury to determine * * * an instruction which permits the jury to determine that time and place is a proper one so long as the instruction does not contain language, e. g., as in Smithers v. Barker, supra, which specifically directs a jury to, or makes likely that a jury will, find that plaintiff was in a position of imminent peril at a time and place when and where he could not have been; in other words, so long as the instruction does not contain a misstatement as to where a position of imminent peril begins.” (Emphasis supplied.)

We rule the contention against defendant.

Defendant also says that Instruction 14 given on behalf of plaintiff is erroneous. The instruction is lengthy and we need not set it out. It is a contributory negligence instruction regarding the counterclaim asserted by the defendant. Defendant’s criticism is leveled at the phrase “when plaintiff realized the danger of an accident.” The negligence on defendant’s part which is set forth in the instruction is that defendant operated his vehicle at a dangerous rate of speed. An examination of the entire instruction will show that the phrase complained of can correctly be treated as mere surplusage. When the instruction is read as a whole we fail to see how the jury could have been misled. As said by this court in the case of Burgess v. Kansas City, Mo. App., 242 S.W.2d 591, 593:

“The meaning of an instruction must be determined from its entirety and not by considering only isolated words or phrases.” (Emphasis supplied.)

The two cases cited by defendant are readily distinguishable from the instant case.

The judgment is affirmed.

All concur.


author: JACK P. PRITCHARD, Special Judge.

text:
    Arthur LeBEAU, (Plaintiff) Respondent, v. Anna LeBEAU, (Defendant) Appellant.
    No. 31362.
    St. Louis Court of Appeals. Missouri.
    April 16, 1963.

      Milford T. English, Cook, Murphy, Lance & English, St. Louis, for appellant.
    Charles M. Shaw, Leonard Bornschein, Clayton, for respondent.
   JACK P. PRITCHARD, Special Judge.

Defendant appeals from a decree of the trial court dated April 17, 1962, denying her a divorce (and consequently alimony) on her cross-bill which was filed on September 25, 1961. This case was taken as submitted on appellant’s brief and oral argument had on March 5, 1962. No appeal was taken by plaintiff from said decree, which also denied him relief on his petition for divorce.

In her cross-bill, defendant alleged that she and plaintiff were married April 22, 1931, and that they lived together as husband and wife until April 25, 1954, and “that during all of said time defendant faithfully demeaned herself and discharged all of her duties as the wife of said plaintiff, and at all times treated plaintiff with kindness, consideration, love and affection. That the plaintiff herein, wholly disregarding his duties as the husband of defendant, has so conducted himself and has offered to defendant such indignites as to render her condition in life as his wife intolerable in the following among other respects, to-wit : (A) That the plaintiff has deserted this defendant and has not fully provided for her support since that time. (B) That the plaintiff has lost interest in his home, and particularly this defendant, and is constantly seen in the companionship of another woman; in fact, has been living with another woman on and off since said April 25, 1954. (C) That the plaintiff attempted to obtain a divorce once before from this defendant, being Cause No. 210,768, Division No. 2 of the St. Louis County Circuit Court, and said petition being ruled against him; that since that time the plaintiff has not lived with the defendant, has not cohabited with her, nor has he in any way resumed the relationship of husband to this defendant.”

The cross-bill goes on to allege defendant’s residency, her inability to support herself and plaintiff’s means to do so, and the prayer is for a decree of divorce, support and alimony for defendant to properly sustain her for her lifetime. There were further allegations concerning support of two minor children born of the marriage, but it is undisputed that all of the children of the marriage are self-supporting and emancipated, and no point is made by appellant of that issue here.

Plaintiff admitted in his reply the marriage and separation of the parties, but denied other allegations of the cross-bill. He has not opposed defendant’s contentions here by filing a brief in this court.

As alleged, the admissions and proof support the facts that these parties lived together after their marriage, April 22, 1931, until the plaintiff husband left the family home at 675 Lindsay Lane, Florissant, Missouri, on said April 25, 1954, and that six children were born of this marriage, all of whom were reared by the parties and stayed in this home until marriage or emancipation.

The grounds for divorce raised by appellant’s brief are limited to the allegations of indignities as pleaded of plaintiff husband leaving the home and living on and off since the date of separation with another woman.

Plaintiff husband made the following admissions during the course of his testimony : He knows a person by the name of Iola Guymon, whose present address is the same as his, 675 Lindsay Lane, Florissant, Missouri, which is the family home. He met Iola Guymon about five and a half years ago — she is a good friend; he also described her as his girl friend. On September 21, 1954, he gave Iola Guymon a check for $100 made to and endorsed by her. He has lived with Mrs. (Miss?) Guymon in the family home for roughly five months, and she has furnished part of the house with a livingroom suite, a kitchen set, a secondhand dining room set, a deep freeze, a lawn mower, and probably several other items, some of these furnishings being in the house for more than five months — no part of it over a year. He and Iola now live in the same house, but he denied marital relations while he has been living there with her.

Plaintiff said he might have gone out with Iola in 1955, and Defendant’s Exhibit 3 corroborates this, being a photograph of Iola and plaintiff which he said was taken at a carnival in Salem, Illinois, in 1955 or 1956.

Plaintiff further said he was a faithful husband until he met Iola five or six years ago; he would like to marry her now if it becomes possible. He stated he never associated with Iola until after the separation from Mrs. LeBeau.

Anna C. LeBeau, defendant, testified that plaintiff is living in the home on Lindsay Lane with Iola Guymon, and has been doing so within a year off and on. Plaintiff never complained while they were together; only after he met this woman much of this took place. She said it was unbearable to live with plaintiff many times. From the time of the marriage until the husband left in 1954, she did the best she could to act as a good wife to him, cooking for him, taking care of the children, and keeping the home clean and liveable. At the time plaintiff left the home he had this woman — defendant asked him, “Did you kiss her ?” and he said, “Yes.” “He told me he kissed this other woman.”

Defendant also proved, and plaintiff admitted, that he had previously sought a decree of divorce on substantially the same allegations here pleaded by him in his petition, and upon substantially the same facts adduced by him, and such decree was also denied him by the Honorable Michael J. Carroll, Judge of Division 2 of the St. Louis County Circuit Court in Case No. 210,768 therein, on May 26, 1958.

Defendant’s good reputation for honesty, morality, and general good conduct was testified to by witness William B. Madden, and also by Helen Surkamp and Stella M. Sawyer, who testified that she had known defendant all her life, that defendant’s home was spotlessly clean when she was there, and she couldn’t see anything wrong with the clothing or upbringing of the children, except she thought when the children got older they wanted to assert themselves, but she thought that defendant did her part — at least, she set an example in the house.

Plaintiff offered no rebuttal to defendant’s case, and in his case in chief he testified (here set forth only insofar as such testimony might bear upon the issue of the defendant being the “innocent and injured” party) that the reason he left the home after 23 years was that he lived a lonesome life, that defendant never showed him any love, even from the first day of the marriage, although she never did deny him sexual relations ; she accused him of being drunk and nagged at him; she never cooked pork chops the way he liked them by dipping them in egg and bread crumbs; that the defendant never had any pride in herself in her personal appearance; and there was some testimony to the effect that there was bickering between them over the control and discipline of the children.

In divorce cases, as in equitable matters, the appellate court, although deferring to the trial court’s findings on controverted matters, is not bound by the decree below, but must review the entire record and reach its own independent conclusions on the whole of the evidence. Ramos v. Ramos, Mo.App., 232 S.W.2d 188; Watts v. Watts, Mo.App., 325 S.W .2d 40.

We adopt defendant’s view to the effect that she does not have to be lily-white to possess the status of being the innocent and injured party in this suit, and the complaints made by the husband above alluded to, are in this court’s opinion insufficient to destroy that status of defendant. Simon v. Simon, Mo.App., 248 S.W.2d 560, 563, where it was said,, “An ‘innocent’ party is not required to conclusively prove freedom from all fault, or such exemplary conduct as excludes any misconduct or all unwise or uncalled-for acts. He or she need show only that, under all the circumstances of a particular case, he or she has not been guilty of conduct constituting a ground or grounds for divorce under RSMo. 452.010.”

Significant it is here that plaintiff has twice failed under similar allegations pleaded by him and facts adduced to establish that there were indignities rendered unto him by defendant as would entitle him to a decree of divorce. We therefore hold that defendant wife is indeed the innocent and injured party in this case.

As to the defendant wife’s allegation of indignities, here the evidence is undisputed that plaintiff husband left the family home and the wife and thereafter associated with and lived with another woman for at least five months, and never did after the separation resume any matrimonial relations with defendant. Such conduct, continuing and clearly established by defendant in this record, and undenied by plaintiff, entitles this wife to a decree of divorce as a matter of right.

In Herriford v. Herriford, 169 Mo.App. 641, 155 S.W. 855, 858, the court said: “ * * * But the divorce is not sought on the ground of adultery, but on the ground of indignities. Even if no adultery is committed by fleshly act, still a wife has no right to so conduct herself as to implant a torturing suspicion of infidelity in the husband’s breast and lead him and the world to think adultery has been committed. Such conduct is of itself an indignity * * ⅜.” See, also, Ferguson v. Ferguson, Mo.App., 279 S.W. 189, 192.

As was stated in Hess v. Hess, Mg. App., 183 S.W.2d 560, 565, “Upon a sufficient petition and proof to support it ‘divorce is a legal right, the granting or withholding of which is in no way dependent upon the discretion of the trial court ⅝ * * > a jt js apparent ⅛ the case at bar that the trial court had no authority to deny defendant’s divorce, her cross-bill being sufficient and indisputable proof having been adduced in support of the allegations therein contained. Willis v. Willis, Mo. App., 274 S.W.2d 621, 628; Needham v. Needham, Mo.App., 299 S.W. 832, 834; Marolf v. Marolf, 191 Mo.App. 239, 177 S.W. 819(3); Miles v. Miles, 137 Mo.App. 38, 119 S.W. 456.

With respect to defendant’s prayer for alimony, it appears that by reason of plaintiff’s conduct, his ability to pay (he earns presently $2,950.00 per year as a painter), defendant’s needs for her proper maintenance and her ability to care for herself, defendant would be entitled to a judgment for alimony in a reasonable amount. Section 452.070 RSMo 1959, V.A.M.S.; Fields v. Fields, Mo.App., 343 S.W.2d 168, 170. Defendant testified as to her needs as follows: Taxicab $20.00; Rent $60.00; Clothing $20.00; Food $90.00; Medical care $30.00; Medicine $10.00; and Miscellaneous $15.00, a total of $245.00 per month. She further testified that on the day following the day of trial that she would go on a job with Father McCarthy in Maplewood, where she would get her board and live on the premises. Thus, the items enumerated by her as to rent, food and taxicab (total $170.00) should be eliminated, leaving $75.00 for her other expenses. Therefore, this court finds that $75.00 per month alimony is reasonable for defendant’s needs and is in accordance with plaintiff’s ability to pay.

The court made an award of attorney’s fees to the defendant, and as to this its judgment is affirmed. But for the reasons stated, the judgment of the trial court is reversed as to the defendant’s cross-bill, and the cause is remanded with directions to enter a decree of divorce upon her cross-bill, and an award of alimony in the sum of $75.00 per month.

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

RUDDY, P. J., not participating.


author: CULVER, Justice.

text:
    H. B. MASON, Jr., Petitioner, v. Katie B. MASON, Individually and as Independent Executrix and Trustee of the Estate of H. B. Mason, deceased, Respondent.
    No. A-9108.
    Supreme Court of Texas.
    March 27, 1963.
    Rehearing Denied April 24, 1963.
    Taylor & Taylor, Temple, Richey, Sheehy, Teeling & Cureton, Waco, for petitioner.
    Cox, Brown & Daniel, Temple, for respondent.
    Roberto M. Benavides, Tom N. Goodwin, John E. Fitzgibbon, William C. Wright, Laredo, amici curiae for petitioner on rehearing after refusal of writ of error.
    Perkins, Floyd, Davis & Oden, Alice, amici curiae in opposition.
   CULVER, Justice.

The sole question here is whether certain named beneficiaries were necessary and indispensable parties defendant to this action brought to contest the validity of a will after it had been admitted to probate. Contrary to the holding of the Court of Civil Appeals we answer that question in the negative.

The will of H. B. Mason, Sr., was duly admitted to probate. The will devised a life estate in a certain tract of land to Hubert B. Mason, Jr., son of the deceased. Mrs. Mason was granted a life estate in all of the remaining property. In addition she was named independent executrix and trustee with full power to manage, control, mortgage, or sell any and all of the estate with the provision that the proceeds of any disposition of the corpus should be reinvested but Mrs. Mason should enjoy and receive the net income therefrom during her lifetime.

The will expressly bestowed upon Mrs. Mason as executrix and trustee all of the powers and duties that are conferred on a trustee by the terms of the Texas Trust Act. In the event of Mrs. Mason’s death or resignation, then The Temple National Bank should serve as independent executor and trustee with all of the powers, duties, and responsibilities theretofore conferred upon Mrs. Mason. After the death of Hubert Mason, Jr. and the death or incapacity of Mrs. Mason, The Temple National Bank as trustee, should support and maintain the children of Hubert Mason, Jr., and the children of Billie Burton Ozier, born prior to the death of the testator, during their minority, and as each child reached the age of 21 years The Temple National Bank as such trustee shall deliver to each his share of the estate, which would then be owned by such child in fee simple. If any grandchild should die before receiving his full share leaving one or more lineal descendants, then his share shall be delivered to the legal representatives of such descendants. During the term of the trust no child of Hubert Mason, Jr., or of Billie Burton Ozier shall have the right to sell or mortgage any portion of his share nor shall the same be subject to execution or any other judicial process. . .

At the time of the testator’s death there were living Richard Gregg Mason, a son of Hubert Mason* Jr., and Michael Mason Ozier and Gary Pearson Ozier, the children of Billie Burton Ozier. Hubert B. Mason, Jr., was the son of testator by a former marriage. Billie Burton Ozier was the son of Mrs. Mason by a former marriage.

Hubert B. Mason, Jr.,, brought a contest of the validity of the will on the ground of undue influence. The above named minor beneficiaries were not made parties defendant. The trial court on the basis of a jury verdict favorable to the contestant rendered judgment declaring the will to be a nullity and vacating the order admitting the same to probate.

Mrs. Mason, individually and as independent’ executrix and trustee, appealed alleging, among other grounds, lack of evidence to support the jury finding of undue influence.

The Court of Civil Appeals on its own motion held that these minor beneficiaries were necessary and indispensable parties in whose absence the trial court was without power to render judgment, all of which constituted fundamental error. The court therefore reversed the judgment and remanded the cause to the trial court with instructions that the minor beneficiaries be impleaded.

As we understand the holding of the Court of Civil Appeals it is predicated upon the theory that, while § 93 of the Probate Code does not designate who should be named as parties defendant in a suit brought to contest the validity of a will, nevertheless all those who have an interest in the matter must be impleaded as in any other cause of action and if § 33 of the Code is construed otherwise it would be unconstitutional and void. The briefs of the parties are principally devoted to a discussion of that proposition.

We rest our decision on the doctrine of virtual representation as applied to the facts in this case where the beneficiaries are cestuis and Mrs. Mason is expressly named as trustee.

The doctrine of virtual representation is applicable to this case. Mrs. Mason as trustee with full power to manage, control, mortgage or sell any and all of the estate with the right to enjoy and receive all of the net income therefrom during her lifetime was empowered to defend this trust and to represent all interested parties. The fact that these three named minor beneficiaries were not made parties to this action does not render the judgment void and subject to collateral attack nor does it constitute fundamental error. Where a suit is brought to cancel a trust instrument the beneficiaries are considered to be adequately represented by the trustee if their interest be not in conflict. They are proper but not necessary and indispensable parties in such a case.

In Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, we quoted with approval from Bogerts, Trust and Trustees, § 593 as follows:

“ * * * The earlier equity rule was that the beneficiary was always a necessary party, but the present position of the courts is that the trustee may represent the cestui que trust in all actions relating to the trust, if rights of the cestui que trust as against the trustee, or the rights of the cestuis que trust between themselves, are not brought into question. In other words, in all cases where there is no conflict of interest between cestui que trust and trustee, or between the several cestuis que trust, the trustee may sue and be sued without joining the cestuis que trust. * *

The test as set forth in Restatement of the Law, Trusts, § 280-i is that the beneficiary is a necessary party only if a complete determination of the controversy cannot be had unless he is a party, for instance, as where the suit involves a controversy or conflict of interest between the trustee and the beneficiaries, or among the beneficiaries. See also Scott on Trusts, § 290.7.

There is no showing that the interests of these minor beneficiaries have in any way been prejudiced by the failure to join them in the suit. It does not appear that the verdict of the jury and the judgment of the district court would have been different in any respect had they been represented at the trial by a guardian or attorney ad litem. The contents of the will and the provisions for these beneficiaries were made known to the jury. The only issue to be decided was whether or not the will was the result of undue influence exercised upon the testator by his wife, Mrs. Mason. It is not claimed that any conflict of interest exists between the trustee and these beneficiaries nor is there the slightest hint of any collusion or fraud. To the contrary the interests of the trustee and these beneficiaries were identical.

In Galveston, H. & S. A. R. R. Co. v. Butler, 56 Tex. 506, the court in that respect distinguished between an action brought to set aside the trust instrument and to declare it a nullity, and one brought in furtherance of a trust to enforce its provisions and establish its validity. The former action may be maintained without the presence of the beneficiaries since the trustee is sufficient to represent and defend interests of all who claim under the trust. It is the duty of the trustee and he is so empowered to defend the trust against all assailants. Every' defense that can be made by the beneficiaries can be made by the trustee and having accepted the trust he is interested in upholding its validity. In the latter action all of the beneficiaries should be joined, says the court, so that the whole matter may be adjusted in one proceeding and a multiplicity of suits avoided. See Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co., 88 Tex. 468, 27 S.W. 100; Cavers v. Sioux Oil & Refining Co., 39 S.W .2d 862, Tex.Com. App.; Preston v. Carter et al., 80 Tex. 388, 16 S.W. 17; McDonald v. Alvis, 154 Tex. 570, 281 S.W.2d 330.

The reason for the application underlying the rule is aptly stated in Cottman Co. v. Continental Trust Co., 169 Md. 595, 182 A. 551:

“ ‘ * * * It is the interest which the court is considering, and the owner merely as the guardian of that interest; if, then, some other persons are present, who, with reference to that interest, are equally certain to bring forward the entire merits of the question, the object is satisfied for which the presence of the actual owner would be so required, and the court may, without putting any right in jeopardy, take its usual course and make a complete decree.’ ”

See 9 A.L.R.2d, Anno-Trust Beneficiaries as Parties, Sections 3,4, 28 and 29.

In Slay v. Burnett Trust, supra, suit was brought by certain trustees against other trustees for damages resulting from mismanagement and for the recovery of trust property. Even in that case the court held that the trustees were authorized to prosecute the suit in their own official capacity without the beneficiary being made a party in the absence of any fraud or collusion between the trustees and the adverse party.

There are various cases of hostile attack where the cestuis were regarded as necessary parties, but most of them are explained by the absence of authority on the part of the trustee, where there was some conflict of interest or for other reasons. See Ebell v. Bursinger, 70 Tex. 120, 8 S.W. 77; Whitsett v. Whitsett, Tex.Civ.App., 1947, 201 S.W.2d 114, ref. n. r. e. In this case no such objections appear.

Accordingly we hold the judgment is not void. We therefore reverse the judgment of the Court of Civil Appeals and remand the cause to that court for consideration of the points of error raised in her appeal by the respondent-executrix-trustee.

      . 357 S.W.2d 442.