author: RUDDY, Judge.

text:
    Sandra Geraldine GOINS, Plaintiff-Respondent, v. Edward A. O’KEEFE, Jr., Defendant-Appellant.
    No. 32500.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.

      Hocker, Goodwin & MacGreevy, John M. Goodwin, Donald J. Stohr, St. Louis, for defendant-appellant.
    George G. White, Donald M. Witte, Brentwood, for plaintiff-respondent.
   RUDDY, Judge.

Defendant appeals from a judgment in the amount of $1250 for damages for personal injuries sustained by plaintiff resulting from an automobile collision. The automobile driven by defendant collided with the rear of an automobile driven by plaintiff. Defendant admitted responsibility for the collision, therefore, the only issue submitted to the jury was whether plaintiff sustained injuries, and if so, the amount of damages to be awarded for the injuries sustained.

The first point relied on by defendant is that the trial court erred prejudicially in giving and reading to the jury the measure of damages instruction offered by plaintiff which was MAI 4.01 and which contained the phrase, “ * * * and is reasonably certain to sustain in the future * * In this same point defendant complains that the trial court erred in permitting plaintiff’s counsel to argue before the jury the issue of permanent injury as an element of damage, contending that there was no evidence in plaintiff’s case to support the submission of any damages which plaintiff “ * * * is reasonably certain to sustain in the future * * ” and that there was no evidence to support the argument that plaintiff had sustained a permanent injury.

Plaintiff, in her testimony, described what happened at the time of the impact. She said her body “was jerked” backward, then forward, and then backward. Her right knee struck the dashboard, her chest struck the steering wheel, and her head went down so far that her chin struck her chest. She was wearing an attachment in her hair at the time, she described as “a ponytail.” After the impact she found that the “ponytail” had become disengaged from her hair, and was in the back seat. She described the ponytail as a regular false hair piece. She had it pinned on with clasps and ribbon. Immediately following the collision defendant asked plaintiff if she was hurt, and she told him “ ‘No, I don’t think so.’ ” She told a police officer she did not think she was injured. However, later that evening, after she had arrived home she felt sore and stiff and developed a headache. She said she laid down because she was getting dizzy. She noticed that her right knee was cut and it began to pain her. Also, her back began to pain her. Her neck had swollen and she could not move it. It was very sore and stiff. The chest was swollen and bruised where her chin had struck her chest. She said her busts were blue and were sore. The evening of the accident she began to take aspirin and other medicine for the pain.

The accident occurred on Tuesday, July 2, 1963, at approximately S :30 P.M. Plaintiff did not seek medical attention for her injuries until July 5th. She said she could not see her doctor on Wednesday, July 3rd, because that was his day off, and the 4th of July was a holiday, so she waited until the next day. She then went to see Doctor Walter R. Johnson. At the time she visited Doctor Johnson, she had headaches and a constant pain in her back. She could get no relief. Her knee was swollen and remained swollen about one and one-half weeks. She saw Doctor Johnson five or six times. She thought he gave her about ten prescriptions for medicine. On his advice she purchased a corset for support to her back. She wore the corset three or four months but it did not help her. She said she did not have any headaches prior to the accident unless she was sick or had some type of illness.

About September 1, 1963, she saw a Doctor James H. Utley. At the time of her first visit to Doctor Utley her head was still hurting and her back was still paining. She said her knee had “cleared up;” however, her chest was still a little sore, explaining that the swelling in the chest had gone down, but that the bruises were still apparent. She saw Doctor Utley about five times.

At the time of her testimony, she said that since seeing Doctor Utley, and up to the day of the testimony, she had experienced backaches; and, while she no longer had them constantly, they still returned and that she had one within the month prior to her testimony. She said she had a pain in her back when she saw Doctor Douglas A. Ries just a few. days before the trial. When she was asked if she was still bothered with any pain in her neck area, she said, “Well, the neck area pains mostly come at night when I am trying to sleep.” She said she could not sleep on a pillow and had difficulty sleeping without a pillow. She testified that the condition in her neck had not gone away, and that she still had very bad headaches about twice a month. She said the taking of bufferin or empirin relieved it for a short period only. She explained that while the swelling in her knee had subsided, constant walking or shopping would cause it to hurt. She said because of her pack pains and her headaches she can not perform her normal household duties properly. Between the time of the accident and the trial of the case, plaintiff gave birth to a child on August 4, 1964. Plaintiff experienced backaches during her pregnancy. She said while carrying her older children during pregnancy, she did not experience backache; except with the first child, but said that backache was nothing in comparison with the backache she experiences now. She saw Doctor Johnson again the night before the trial.

Doctor Walter Johnson first saw plaintiff on July 5, 1963. Plaintiff complained of pain and stiffness in her chest, neck, and back. His examination showed that the chest was discolored and slightly red and swollen; plaintiff’s skin was rather tight and firm and tender to the touch; the posterior part of her neck was swollen, discolored, and tender and palpation revealed spasms of the cervical muscle; the turning of her head was painful; plaintiff’s back was swollen, slightly discolored along the lower part, and there was tenderness in the lumbo sacral area, where the spine is joined to the pelvic bones of the back. Upon pressure there was a generalized spasm of the superficial muscles extending from the border of the ribs to the iliac crest. She experienced some pain in a leg raising test. He prescribed some pain killer, skeletal muscle relaxant and an enzyme to help reduce swelling. He told her to go to bed and to remain in bed until most of the symptoms had subsided. He took no x-rays because there was not enough evidence to suspect possibility of a fracture or dislocation. He diagnosed her injuries as a lumbo sacral strain at the lumbo sacral joints, a strain of the lumbo muscles; a strain of the posterior neck muscles and contusion of the anterior chest wall. He saw plaintiff seven times, the last visit for treatment was on August 30, 1963, at which time he said his diagnosis was not changed. He did not discharge plaintiff, but she did not come back. Doctor Johnson saw plaintiff the night before the trial and said she complained of having pains in the neck and in the back which were brought on by activity and the stress and strain of long standing. He testified that, “ * * * when one has had an injury to the spine, the neck, all the lumbar area, lower part of the spine, it is difficult to cure. And you may expect that symptoms may present themselves depending on other variables and other conditions for the rest of their life.” He testified that with reasonable medical certainty it could be said that plaintiff would have these pains in the future, and when he was asked if there was anything that could be done to make the pains disappear completely he answered, “Only temporarily.”

“Q. Can you correct the injury or the harm that has been done to the body?
“A. No.
“Q. And would you say, Doctor, that there has been a permanent injury to Mrs. Goins as a result of these injuries?
“A. Yes, I would say so.
“Q. Do you feel that she may require future medical treatments?
“A. Yes, I feel that she may require future medical treatments.”

When asked if the ordinary aging process would have any effect on her injuries in the future, he said, “With reasonable medical certainty you would expect that they would get worse; but this does not hold true with every individual, this is just based on statistics.”

The records of Doctor James H. Utley were introduced into evidence and identified by a witness who said she was an assistant to Doctor Utley. The records show that plaintiff saw Doctor Utley for the first time on September 10, 1963. His diagnosis was stiffness of the neck, with limitation of motion on the right, and that she had a sore throat for two weeks prior to the time she came in for her visit. On her second visit, September 17, 1963, her throat was still sore, and she complained that her right ear hurt. Doctor Utley again saw plaintiff on the 24th, 27th and 30th of September 1963.

Doctor Douglas A. Ries, presented as a witness by defendant, testified that he examined plaintiff at the request of defendant on November 1, 1965. He was unable to find any objective evidence of any abnormality or disability that he could attribute to an incident occurring on July 2, 1963, other than a small scar on the front of the right knee of plaintiff. He said the scar was superficial, non-tender and non-constricting and that she could move her knee freely. X-rays disclosed no evidence of injury to any part of the body.

Defendant contends there is not a shred of evidence, beyond plaintiff’s present subjective complaints of occasional backaches, pains in her neck and headaches twice a month, that she suffered any permanent injury from the collision. Further, defendant points out in support of his contention, that plaintiff had no medical attention or treatment for a period of over two years, before the trial.

Plaintiff’s testimony shows that at the time of the trial she was having backaches and pains in her neck area. She continued to have bad headaches about twice a month and, although the swelling in her knee had gone, prolonged walking caused it to hurt. These conditions diminished her ability to perform her household duties. She experienced none of the aches, hurts and pains before the accident.

Doctor Johnson said the injuries to the spine, neck, and the lumbar area are difficult to cure and that symptoms in these areas will present themselves for the rest of plaintiff’s life. His opinion, based on reasonable medical certainty, was that plaintiff would have these pains in the future, and that her injuries are permanent. He said that nothing could be done to correct the injury or harm to her body, and that future medical treatment could only afford temporary relief.

The believability of plaintiff’s testimony and that of her medical witnesses was for the jury and we think that the evidence we have related heretofore was sufficient to raise a jury question whether plaintiff is reasonably certain to sustain pain in the future and was sufficient to permit argument to the jury on the permanent nature of her injury. In connection with the aforesaid contention of defendant, there is no merit to his statement that plaintiff was not permanently injured because there was no objective evidence of any abnormality or disability in the plaintiff other than a small scar on her knee. Defendant cites no authority to support this, but it seems obvious that one can receive a permanent injury to the muscular structure of the body which may not show objectively, but will manifest itself in a subjective manner. As we have said there is no merit to this contention.

Defendant next contends that the trial court erred prejudicially in overruling his objections to certain portions of plaintiff’s closing argument. In the closing argument, plaintiff’s counsel told the jury,

“ * * * You are the ones who are going to decide whether she gets what she rightfully deserves in the way of damages. Mr. Goodwin has already indicated from his zero amount that he has put in his instructions, the Two Hundred and Fifty, then Three Hundred then Five Hundred. Give him more time he would probably be up to Three or Four Thousand Dollars.”

Mr. Goodwin, defendant’s counsel, made the following objection: “That is not proper; I wouldn’t; I object to it; I wouldn’t pay her Three Thousand Dollars ($3,000) on a whole city block.” The court overruled the objection and we think properly so, because in defendant’s portion of the argument, defendant’s counsel told the jury that if plaintiff “ * * * sustained injury at all, it is so trivial that it isn’t worthy of being the subject of a lawsuit at all.” Later in his argument defendant’s counsel told the jury,

“ * * * This case has a reasonable value for settlement of about Two Hundred and Fifty Dollars ($250). We have been willing to talk about settlement since the day after it happened. We get a Fifteen Thousand Dollar ($15,000) suit. We have spent the money to defend it with x-rays, with a doctor. Whatever verdict you bring back, we will have to pay the costs of this whole action. * * * We are not here because the defendant is not willing to pay Two, or Three, or Four, or Five Hundred Dollars to get rid of this case. We are here because they want something they are not entitled to. And I would rather — and I know you would too — spend the money in seeing the right thing done than give into this sort of thing. * * * ”

We see nothing prejudicially erroneous in the retaliatory argument of plaintiff’s counsel.

The next portion of plaintiff’s closing argument, objected to by defendant, was when plaintiff’s counsel told the jury,

“Secondly, you heard Mr. Goodwin try to get Doctor Johnson to say that at any time Mrs. Goins was given antibiotics; if he thought for a second that Doctor Johnson lied on that stand he would have had Doctor Ries testify to this record. He probably had Doctor Ries look at this record.
“MR. GOODWIN: Just a minute, please; Counsel knows I cannot have Doctor Ries testify from some other doctor’s records. He objected to it when I asked Doctor Johnson about this record. That is not a fair argument.”

The trial court said: “Objection overruled; this is argument.” The fact is no objection was made. While there was nothing in the record to support the statement that Doctor Ries had looked at the record of Doctor Johnson, we do not think the argument is prejudical because defendant’s counsel in his argument raised the question whether plaintiff’s sore throat was caused by the accident.

Near the close of his argument plaintiff’s counsel told the jury,

“Just how much money you people are going to bring in, I don’t know; I do know it should be a lot more than the Two Hundred and Fifty; Three Hundred or Five Hundred that Mr. Goodwin has talked about. As I have stated before, when I opened my closing argument, I don’t think this case is worth Fifteen Thousand Dollars ($15,000) but we did that to protect our client; that is our job in protecting our client in case her condition took a turn for the worse, to prevent someone like Mr. Goodwin from coming in here — she might become paralyzed from the waist down—
“MR. GOODWIN: I object; this woman is not paralyzed from the scalp down.
“THE COURT: Overruled.”

Plaintiff's counsel then told the jury, “I believe the pain and suffering Mrs. Goins has gone through today and will go through in the future is worth no less than Four Thousand Dollars ($4,000) * *

As is shown heretofore, defendant’s counsel was the first to tell the jury that plaintiff’s prayer in the petition was for Fifteen Thousand Dollars ($15,000). We think this portion of plaintiff’s argument was an attempt to explain why the suit was brought for Fifteen Thousand Dollars ($15,000), pointing to the fact that at the time the suit was brought the extent and nature of plaintiff’s injury was not then fully known, and that the suit was brought for the sum indicated in order to protect the client against any unknown condition that might arise. We think plaintiff’s attorney was entitled to explain why the suit was brought for Fifteen Thousand Dollars ($15,000) in view of defendant’s injection of this sum into the case. We do not think this statement in any way prejudiced the minds of the jurors, inasmuch as they knew that plaintiff was not seeking damages for any paralysis from the waist down. We find no prejudicial error in the court’s ruling.

As we have pointed out at the beginning of this opinion, defendant had admitted responsibility for the accident and the only issue for the jury was one of damages. We find no error in the giving of instruction No. 5 by the trial court and no error in permitting plaintiff’s counsel to argue the issue of permanent injury as an element of damage; nor, do we think any portion of the closing argument of plaintiff’s counsel was prejudicially erroneous. The modest amount of the verdict brought in by the jury supports our conclusion. The judgment of the trial court should be affirmed. It is so ordered.

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


source: Caselaw Access Project

license: Public Domain

text:
    James B. CHAGNON, Plaintiff-Appellant, v. SHAMPAINE INDUSTRIES, INC., Defendant-Respondent.
    No. 32388.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.
    Shifrin, Treiman, Schermer & Susman, Mellitz, Mass, Agatstein & Frank, St. Louis, for plaintiff-appellant.

      Norman Bierman, Anderson, Gilbert, Wolfort, Allen & Bierman, Stuart M. Haw, Jr., St. Louis, for defendant-respondent.
   RUDDY, Judge.

Plaintiff brought this action to recover commissions alleged to be due him as a salesman for defendant upon orders procured prior to the termination of his employment, but which were shipped thereafter. The jury found in favor of plaintiff in the principal sum of $3490.87, with interest of $523.60, aggregating $4014.47. The trial court sustained defendant’s motion for judgment in accordance with its motion for a directed verdict offered at the close of the entire case and overruled defendant’s motion for a new trial. Plaintiff appealed.

The questions for determination are:

1. Does the evidence support plaintiff’s contention that the entire contract of employment was made orally on or about March 1, 1961, and that the said contract did not include the termination clause of the 1961 or 1962 Sales Compensation Plan which provided for forfeiture of commissions on orders procured prior to the termination of plaintiff’s employment, but which were shipped thereafter? or,
2. Was plaintiff’s employment governed by the terms and conditions of the Sales Compensation Plan in effect on May 25, 1962, the date of the termination of his employment, which included the termination clause? And if so,
3. Did the termination clause, paragraph 28 of the 1962 Sales Compensation Plan, bar plaintiff’s claim to commissions on orders procured prior to the termination of his employment, but which were shipped thereafter?

We now look to the evidence for the answers. At the threshold of our summation of the evidence, we point out that the amount of the commissions due, if plaintiff is entitled to recover, is not in dispute and involves orders for merchandise received before termination of plaintiff’s employment and shipped thereafter.

Plaintiff was employed by defendant as a sales representative in June, 1960. The territory assigned to him was Greater St. Louis, which plaintiff said comprised the City and County of St. Louis and East St. Louis. He was placed on a straight salary basis of $800 per month, plus reimbursement for business and traveling expenses incurred by him. This was his sole compensation irrespective of how much or how little merchandise he sold. This salary basis continued until on or about March 1, 1961.

On or about March 1, 1961, plaintiff had a conversation with Mr. Albert C. Einstein relative to a different form of compensation. Mr. Einstein was the General Sales Manager of the defendant company and was plaintiff’s superior from the very beginning of his employment. Plaintiff testified that he made the request of Mr. Einstein, “ * * * that I be considered to change my method of compensation from straight salary to a reduced salary plus commissions on the products sold.” Plaintiff gave the following testimony regarding the conversation he had with Mr. Einstein :

“The conversation was relatively simple in that Mr. Einstein was very agreeable to going ahead and changing my method of compensation because the change to the other plan permitted higher earnings for me provided my sales continued as well as they had. So at this meeting we negotiated my base income, which then became $400.00, satisfactory to myself and Mr. Einstein, and then I was to earn commissions on products the company manufactured, at various rates I knew were customary with other men selling on straight commission.
“Q. Were you familiar with the rates of commissions that other sales representatives were paid, who worked on a commission basis?
“A. Yes, I was.
“Q. Did you say anything to Mr. Einstein in that connection, or he say anything to you?
“A. No, we didn’t discuss, specifically, commission rates because we both had worked under it and I knew the rates.”

Plaintiff did not recall whether he told Mr. Einstein that he knew the rates, but he believed that both of them assumed that plaintiff knew the rates because he had been employed for nine months. He said the rates varied from 2½% to 4% on 'various products, stating that the 2½% rate applied to heavy equipment and the 4% rate applied to the smaller items. In this conversation nothing was said about the territory he was to service. He testified “I continued with the same one.” In further enlargement on the commission rates that he believed Mr. Einstein assumed that he (plaintiff) knew, he said that he was to receive full commission for merchandise sold by him and delivered in his territory. If he sold something to a dealer in his territory which was to be delivered in another territory he received one-third of the commission and the sales representative in the other territory received two-thirds of the commission. If a sales representative outside of his territory sold something which was delivered in his territory he received two-thirds of the commission and the other sales representative received one-third of the commission. He explained, “That, essentially, was the plan.”

His commission was paid to him on the month following the date of delivery of the merchandise sold. He said he continued to work thereafter upon the basis outlined above.

During his cross-examination plaintiff testified that his conversation on or about March 1, 1961, with Mr. Einstein, was a “relatively simple conversation” in that he had conferred with Mr. Einstein “Approximately fifteen minutes.” He said that they did not discuss specific commission rates because he knew the rates. He was asked, “And what other specific things did you discuss at that meeting with regard to your new — ”, and he answered, “Very little else that I recall. The essential part of the conversation was the request of change in my compensation plan from essentially what was known as a salary basis to a commission basis.” Upon-further inquiry during his cross-examination about the conversation he had with Mr. Einstein, plaintiff said, “I had an oral discussion with Mr. Einstein which was nothing more than a switchover from the straight salary basis to a commission plan the company had in existence, and this was agreed upon as to the effective date this would take place, and nothing else.” At this point in his testimony he added that he did request a territorial increase and that Mr. Einstein said he would discuss that with him later. Plaintiff admitted that the conversation he had with Mr. Einstein, which he described as an “oral contract,” did not define his duties nor his territory. It appears that Mr. Einstein left the defendant company in July of 1961. Plaintiff testified that he did not tell anyone else about his “oral contract” with Mr. Einstein.

About January 1, 1961, which was prior to the conversation plaintiff had with Mr. Einstein, plaintiff received a letter dated December 28, 1960, which, in part, read as follows:

“At the meeting between yourself and your regional manager, you were assigned the following quotas for the sales year commencing January 1st and continuing through Décember 31, 1961. (Then followed fourteen product lines with the quotas for each product.)
“Attached for your convenience is a copy of the Shampaine Industries ‘Sales Compensation Plan’. As long as you are compensated on a salary plus travel expense basis, the Commission rates listed therein do not apply. * * *
⅝ ⅜ ⅜ ⅜ ⅝ ⅜
“Your base pay for 1961 will be $800.-00 per month.
“We wish you a very happy and prosperous 1961.
“Sincerely,
/s/ A. C. Einstein
General Sales Manager.”

Attached to the aforesaid letter and received by the plaintiff was the “Sales Compensation Plan” dated January 1, 1961.

About two days after the conversation plaintiff had with Mr. Einstein on March 1, 1961, he received another copy of the January 1, 1961, Sales Compensation Plan which was mailed to him by Mr. Einstein. It was a copy of and similar in all respects to the Sales Compensation Plan he received about January 1, 1961.

The plan consisted of nine pages, parts of which we quote verbatim, while other parts we merely describe.

The plan applied to all sales representatives. It provided for an annual salary which was compensation for service calls made within the district at the direction of the regional sales manager, and for calls made on Federal, State and Municipal Institutions.

Paragraph 2 provided: “Commissions on Sales are paid under the terms and conditions of this Plan.” (Emphasis ours.)

Paragraph 3 provided: “Bonus Commissions are paid on sales in excess of product category quotas as specified in this Plan.”

Paragraph 4 provided: “Planned Incentive Payments are made for balanced selling achievement as specified in this Plan. All compensation will be paid by Sham-paine Industries.”

The products covered by the plan were described, as well as the “Salesman’s Duties and Responsibilities.” It provided that the annual sales quota for each of the product categories will be assigned.

Paragraph 9 provided: “Orders taken by the salesman are subject to acceptance by the Home Office. Commissions and quota credits are earned when orders are shipped. * * * ” (Emphasis ours.)

The plan also provided for commissions payable on orders taken in one district for shipment into another. This commission was payable as explained by plaintiff in his testimony and heretofore referred to. It provided for a determination of commission and quota credits in other areas not referred to in the plan.

Paragraphs IS, 16, and 17 of the plan outlined the commission rates. Of particular interest to us is the following from Paragraph 15:

“Effective January 1, 1961, the salesman will be paid 2}4% commission on all orders received and shipped on or after that date which are credited to the sales quota, except as otherwise provided in this Plan and with the following specific exceptions:” (Thereafter follows other categories of sales with different rates of commission.) (Emphasis ours.)

Other provisions in the plan provided for the manner in which bonus and incentive payments may be earned.

Paragraph 22 provided that payments of compensation for annual salary will be made every other Friday and that: “Regular Commissions: within approximately two weeks after the end of the month in which shipment is made.”

It was further provided that bonus commissions and planned incentive payments would be made within sixty (60) days after the close of the sales year.

There were further provisions for reimbursement of certain expenses and for vacations.

Paragraph 28 was as follows:

“T ermination
“When a salesman’s employment terminates for any cause whatsoever, he will be entitled to receive commissions on merchandise shipped to date of termination only. He will receive bonus commissions and planned incentive payments only on shipments to date of termination.”

Paragraph 29, the concluding paragraph, provides:

“When a salesman leaves the employ of the Company, he must return those items on his receipt memo, or these will be charged against his final check.”

Attached to the Sales Compensation Plan was a sheet setting out the policy for authorized expense accounts and another sheet titled “Correspondence Guide for Salesmen.”

Plaintiff testified that when he received the Sales Compensation Plan he read the first several pages that referred to commissions, but did not read the plan in its entirety. However, in his cross-examination his attention was called to the various provisions of the plan and he acknowledged reading virtually all of them with the exception of Paragraph 28 and he admitted that all of his commissions, his bonus commissions and his planned incentive payments would be paid “under the terms and conditions of this Plan” and “as specified in this Plan.” He admitted reading Paragraph 15 and the exception noted therein. Plaintiff admitted that his compensation was paid under the plan and that he earned and received approximately $1700 as bonus and incentive payments in addition to his commissions in 1961. He admitted earning $13,000 in bonuses and commissions in 1961 and said that this did not include the bonus payment which he received in March of 1962 of $1700. When his attention was called to Paragraph 28, the termination clause, he was asked, “Did you at that time read Paragraph 28?” “A. I did not sir.”

Plaintiff admitted that all of his duties and what he could expect to receive by way of commissions, bonuses and incentive payments and the manner in which they could be earned, and the reimbursement for expenses he incurred, were all in the written “Sales Compensation Plan” which plan, he admitted, applied to all sales representatives of Shampaine Industries. He said there was a schedule of commission rates which wás in effect for every commission salesman of the company

“ * * * and that’s what I understood when I talked to Mr. Einstein. It was as simple as that. I accepted the commission rates, so whether they changed in ’61 or ’62, the commission rates were in effect and under which I worked.
“Q. And those commission rates and bonus requirements were spelled out in the Sales Compensation Plan which was then in effect and which was sent to you two days later; correct?
“A. All that material was in the plan.”

Sometime in 1961 plaintiff’s sales territory was increased to include, in addition to the greater St. Louis area, the southern portion of Illinois, the southern portion of Indiana, and a portion of Kentucky.

Shortly after January 1, 1962, plaintiff received a letter dated January 1, 1962, from Kurt F. Vogt, Director of Marketing as follows:

“The following quotas will apply to your district for the sales year commencing January 1st and continuing through December 31, 1962: * * *.
“Attached for your convenience is a copy of the Shampaine Industries ‘Sales Compensation Plan’. You are invited to familiarize yourself with this thoroughly. Commission rates listed will apply to all orders shipped after January 1, 1962, as well as to all orders received after that date.
“Your base pay for 1962 will be $400.00 per month.
“We wish you a very happy and prosperous 1962.”

Attached was the “Shampaine Industries Sales Compensation Plan” for the year 1962. The form of the 1962 Sales Compensation Plan was essentially the same as that of the 1961 plan. Plaintiff admitted that the product lines mentioned and the quotas did vary in 1962, and that the 1962 plan showed some additional products and also omitted some that had appeared in the 1961 plan. The total quota for 1962 was indicated at $461,000 as compared to $236,000 for the year 1961. Plaintiff was asked:

“Q. Did you read this plan over carefully?
“A. Only the portions pertaining to commission rates and bonus incentive plans, sir.
“Q. Well, there were some changes made in commission rates, were there not?
“A. I just said I read that portion, sir, because that was the basis on which I earned my living.”

Plaintiff admitted that there were a number of changes made in the 1962 plan in connection with the bonus and incentive payments. He pointed out that the possible incentive payment he could earn in 1962 was $3100.00, whereas it was less than that in 1961.

Paragraph 28, the termination clause, was the same in the 1962 plan as it was in the 1961 plan. When plaintiff was asked if he familiarized himself with the plan, as he was invited to do in Mr. Vogt’s letter, he answered, “I did not, sir. I read it piecemeal as it affected what I needed primarily my earning ability.” He admitted that he was paid the basic salary and the various commissions as modified by the January 1, 1962 plan and was paid in accordance with the schedule of rates applicable in the 1962 plan. Plaintiff testified :

“There is a schedule of commission rates which were in effect for every commission salesman of the company, and that’s what I understood when I talked to Mr. Einstein. It was as simple as that. I accepted the commission rates, so whether they changed in ’61 or ’62, the commission rates were in effect and under which I worked.”

He said it was precisely correct that he agreed to work for the same rate as other salesmen received.

“Q. You would be susceptible to any changes—
“A. That’s right. There was no specific talk about it, it was the schedule in effect under which the rest of the sales force operated under, whatever it was.”

He again said that he did not read Paragraph 28, the termination clause, and that the first time he read it was after the termination of his employment. Plaintiff’s employment was terminated on May 25, 1962.

In defendant’s case Alfred C. Einstein testified, through his deposition, that prior to changing plaintiff’s basis of payment from a straight salary to a commission basis, which would have been partially salary and commission, he would have had a conversation with plaintiff, such as plaintiff related in his testimony. He did not remember the date of the conversation. He said that plaintiff was to receive “our standard commission, whatever it was,” as provided in the Sales Compensation Plan of January 1, 1961. He said he was sure that he mentioned the 1961 Sales Compensation Plan. When he was asked if he excluded from the conditions and terms of plaintiff’s compensation plan any of the provisions of the 1961 Sales Compensation Plan, he answered, “I never had an exception with any salesman at Shampaine to our compensation plan with the exception of one.” He said plaintiff was not the exception. He said that plaintiff never did complain to him about the Sales Compensation Plan or the terms and conditions thereof and that plaintiff never questioned any of the provisions of the plan. Plaintiff never raised any questions concerning Paragraph 28, the termination provision. When the witness was asked if any written contract was entered into which spelled out all of the terms and conditions of the employment, he answered, “He would be written a letter and sent the compensation plan. That would be our contract. That was the extent of any contract.” The witness further said, “We had a loose contract arrangement. And by the same token we didn’t bind our people not to work for a competitor. It works both ways. You will find more stringent contracts in our industry that are non-competing contracts.” He said in addition to the Sales Compensation Plan, the salesman was told in covering letters what his territory was and that he always received a salary. He said the salary was part of the plan, but that the salaries differed among the sales people. Because the salaries and the territories differed they were not mentioned in the plan. Also the quotas were not in the plan because they differed. Witness said that he was sure that he did not go into all of the terms and conditions of plaintiff’s employment during the oral conversation he had on or about March 1, 1961.

Robert A. Romberger, Western Regional Sales Manager of defendant company, and Irvin L. Schulte, Comptroller and Assistant Secretary-Treasurer of said company, testified they met with plaintiff after the termination of his employment to go over his account. At the close of their discussion plaintiff was given a check in the amount of $792.89 for commissions and expenses due. On a later date plaintiff was sent a check to cover severance allowance of one month’s pay and a check for three weeks vacation. During the aforesaid discussion plaintiff made certain claims for expenses, but no claim was made at that time for other commissions.

Kurt F. Vogt testified that he succeeded Mr. Einstein and that he had signed and forwarded the letter dated January 1, 1962, together with the attached Sales Compensation Plan, to the plaintiff. He said similar letters were sent to all sales representatives of the company and that the Sales Compensation Plan was identical for all of the salesmen. He testified that he told plaintiff his services were terminated. Plaintiff did not make any statement about commissions coming to him for orders shipped after the date of termination, nor did he make any claims as to future orders.

We proceed to answer the first question posed at the beginning of this opinion. It is plaintiff’s contention that the undisputed evidence shows that a complete contract of employment was made orally in the conversation he had with Mr. Einstein on or about March 1, 1961, and that said contract did not include the termination clause contained in the 1961 and 1962 Sales Compensation Plan. Plaintiff contends there is no dispute of fact in the evidence and whether or not an oral contract of employment was created and effected by the conversation on or about March 1, 1961, was for the court to decide and not the jury.' We agree with this contention. All the testimony about the language used in and the scope and extent of the conversation came from plaintiff and was wholly uncontradicted. Thus the first question presented is one of law. Young v. Van Natta, 113 Mo.App. 550, 560, 88 S. W. 123; Willard v. A. Siegel Gas-Fixture Co., 47 Mo.App. 1, 7.

We see no need to include in our discussion of this first question a repetition of the pertinent conversation. We think it is obvious that the conversation merely determined nothing more than, as testified to by plaintiff, “a switchover from straight salary basis to a commission plan * * Plaintiff’s testimony “that Mr. Einstein was very agreeable to going ahead and changing my method of compensation” and that he and Mr. Einstein assumed that plaintiff knew the rates of commission, was testimony of mere conclusions on plaintiff’s part and was not testimony showing a meeting of minds. This is not testimony that would effect a complete oral contract of employment. All that is shown by the testimony of plaintiff as to the conversation he had with Mr. Einstein was that he asked Mr. Einstein to consider a change in his method of compensation from straight salary to a reduced salary plus commissions on the products sold. Plaintiff said, “ * * * we didn’t discuss, specifically, commission rates * * Plaintiff’s testimony affirmatively shows that the conversation was silent about specific commission rates, bonuses and incentive payments; how and when these commissions, bonuses and incentive payments were to be paid; his duties and responsibilities under the changed plan of compensation; his quotas and his quota credits; the commissions, he acknowledged receiving, for merchandise delivered in his territory but sold by a salesman outside of the territory; and commissions payable to him for merchandise he sold in his territory to be delivered outside his territory; what expenses would be reimbursed; his right to a vacation and the period of vacation; as well as his right to recover commissions on merchandise shipped after his employment terminated. None of these matters was discussed, let alone agreed upon. An agreement on most of these matters, if not all, was essential to effect a complete oral contract of employment. In order to constitute a contract, there must be a mutual understanding of the facts entering into such contract and nothing can be left to conjecture. Sample v. Bank of Poplar Bluff, 239 Mo.App. 1152, 207 S.W.2d 55, 56. We observe that if plaintiff knew the commission rates at the time of his conversation with Mr. Einstein, and that Mr. Einstein assumed that he knew these commission rates, this knowledge upon the part of both parties could only come from the fact that Mr. Einstein had forwarded to plaintiff, prior to the conversation, a copy of the Sales Compensation Plan of January 1, 1961, which plaintiff acknowledged receiving.

Plaintiff’s theory in the trial court and in this court is that he entered into a complete oral contract of employment in the conversation he had on or about March 1, 1961, and that compensation for his services as a salesman was to be based solely and exclusively according to the terms and conditions agreed upon in the conversation until the date of his discharge, and that the oral contract did not include the termination clause referred to. At the risk of seeming to belabor the point, we again say, that contrary to plaintiff’s contention his testimony shows that at the time of the conversation relied on he did not discuss commission rates or all of the terms and conditions of employment. As a matter of fact plaintiff’s testimony of the conversation does not recite what was said by the parties. His testimony in this regard states his conclusions of what transpired, nothing more. When he was asked what other specific things were discussed, he said, “Very little else that I recall. The essential part of the conversation was the request of change in my compensation plan from essentially what was known as a salary basis to a commission basis.” We rule that the evidence does not support plaintiff’s contention that the entire contract of employment was made orally on or about March 1, 1961.

In answer to the second question posed at the beginning of our opinion we rule that plaintiff’s employment was governed by the terms and conditions of the Sales Compensation Plans in effect in 1961 and 1962. His employment was governed by the terms and conditions of the applicable plan until the date of the termination of his employment, namely, May 25, 1962, and included the termination clause. We shall proceed to show why we think plaintiff’s employment was governed by the terms and conditions of the Sales Compensation Plans in effect during 1961 and 1962.

Plaintiff admitted receiving the 1961 “Sales Compensation Plan” several days after his conversation with Mr. Einstein. He first said he did not read it in its entirety and later admitted reading virtually all of the 1961 and 1962 Sales Compensation Plans, except Paragraph 28. He was familiar with the parts of each plan that provided for his annual salary; his commissions and the terms under which they were paid; his bonus commissions and his planned incentive payment; his duties and responsibilities as a salesman; his annual sales quota for each of the product categories he sold; the method of determining his incentive payments; the provision for reimbursement of certain expenses; and, a provision for vacations. He was familiar with all of these provisions in the plan, except that contained in Paragraph 28. He admitted that his salary, commissions, and incentive payments were all paid according to the plan. He also admitted that the Sales Compensation Plan applied to all sales representatives of the Shampaine Industries. He said there was a schedule of commission rates in effect for every commission salesman. He said “I accepted the commission rates, so whether they changed in 1961 and 1962, the commission rates were in effect, and under which I worked.” He said it was precisely correct that he agreed to work for the same rate as other salesmen received, and that he was susceptible to any changes that were made. This was verified in the testimony of Mr. Einstein, with the exception of the provision contained in Paragraph 28. It will be recalled that Mr. Einstein testified that nothing was excluded from the Sales Compensation Plan concerning plaintiff’s compensation, and that plaintiff never questioned any of the provisions of the plan. Plaintiff admitted receiving the letter from Kurt F. Vogt about January 1, 1962, which invited him to familiarize himself thoroughly with the contents of the Sales Compensation Plan. He admitted that the product line mentioned and the quotas set in the 1962 plan varied from the 1961 plan; that the 1962 plan showed some additional products and omitted some that had appeared in the 1961 plan.

Plaintiff admitted that during 1962 all compensation he received was paid according to the 1962 plan and that he performed services as required by and in accordance with the terms and provisions of the 1962 plan. Plaintiff’s uncontradicted testimony shows that by his performance under the 1961 and 1962 plans, and his numerous admissions of acceptance of benefits in accordance with the income provisions of the plans, that he agreed to and accepted the 1961 and 1962 Sales Compensation Plans. At the time of his discharge he was bound by all of the provisions of the 1962 Sales Compensation Plan. Kurt F. Vogt’s letter of January 1, 1962, with ' the 1962 Sales Compensation Plan attached, constituted an offer of a contract of employment to plaintiff for the period commencing January 1, 1962, and plaintiff’s performance under the plan was an acceptance of all the terms of the contract. Hahn v. Forest Hills Construction Company, Mo.App., 334 S.W.2d 383, l.c. 385. Plaintiff can not now be heard to say that he did not read Paragraph 28 of the contract providing for commissions on merchandise shipped to date of termination only. Plaintiff can not accept the benefits under the contract and seek to escape provisions not beneficial to him by merely pretending that he did not read this provision. As we have said, plaintiff having accepted the benefits of the contract is bound by all the provisions contained in the contract. Ragen v. Schreffler, Mo., 306 S.W.2d 494, l.c. 499.

We now discuss the third and final question we posed. It is the contention of plaintiff that even if the termination clause is considered part of the employment contract, that a fair construction of the clause would be that it merely postponed plaintiff’s rights to commission, until the orders procured by him were shipped, although shipped after termination. In support of this he says that the word “When” at the very beginning of the clause is an adverb and means “at the time.” Further contending that any other construction of the clause would work a forfeiture, which is not favored in the law. Opposed to this is the contention of defendant that the word “When” as used in Paragraph 28 is not an adverb, but is a conjunction and means “if” or “in case” or “in the event that.” We think it is used as a subordinating conjunction and as used is equivalent in meaning to “if.” In this use it has meaning. To construe Paragraph 28 as plaintiff suggests would make the inclusion of this paragraph in the Sales Compensation Plan meaningless, inasmuch as Paragraph 9 of the Sales Compensation Plan provides that “Commissions and quota credits are earned when orders are shipped.” If' it was intended, as plaintiff contends, that plaintiff was to receive commissions on orders shipped after the termination of his employment, then Paragraph 28 could have been omitted, because Paragraph 9 provides for the payment of commissions when orders are shipped. Paragraph 28 did not postpone plaintiff’s right to commission until the orders were shipped. We think and rule that Paragraph 28 terminated plaintiff’s employment as of the date of his discharge and terminated his right to commissions on any orders he may have procured that were shipped thereafter. While such a provision in the contract may seem harsh under the construction we have given it, .it must be remembered that plaintiff accepted all of the benefits under the contract, and, therefore, as we said heretofore, can not escape provisions not beneficial to him.

We find that the trial court properly sustained defendant’s motion for judgment in accordance with its motion for a directed verdict and, therefore, the judgment should be affirmed. It is so ordered.

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


author: DOERNER, Commissioner.

text:
    Henry Lee WICHMAN, Plaintiff-Respondent, v. The AETNA CASUALTY AND SURETY COMPANY, a Corp., Defendant-Appellant.
    No. 32471.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.

      Smith & Colson, Farmington, for defendant-appellant.
    Roberts & Roberts, Farmington, for plaintiff-respondent.
   DOERNER, Commissioner.

The decisive question presented in this appeal is the nature and extent of the coverage of a policy of insurance issued by the defendant. Trial to the court without a jury resulted in a judgment for plaintiff for $2359.85, from which defendant perfected an appeal.

W-R Motors, Inc., a Missouri corporation, was organized to engage in the sale of automobiles at Festus, Missouri. It bought out a former dealer, a Mr. Smith, and became a franchised dealer for the sale of Mercury and Rambler cars. Prior to commencing business, in June, 1963, plaintiff Henry Lee Wichman, whose title was never stated but who apparently is the operating officer of W-R Motors, contacted Stan Klein regarding the purchase of insurance for the company. Klein, it was stipulated, was the agent and servant of the defendant, with the power to countersign and issue policies of insurance. Wichman testified that he told Klein he wanted “full coverage” for W-R Motors and for customers’ cars left with it; and there was testimony by Wichman and Estol Lowe, one of the company’s salesmen, that when Klein delivered the policy on June 18, 1963, Klein stated that customers’ cars were covered for any accident or damage while in the possession of W-R Motors or on its premises.

On December 14, 1963, while the policy of insurance was in force, W-R Motors sold a 1964 Mercury to Carmon A. Hill, and delivered the car to him, together with an application for a Missouri title and a bill of sale. Hill decided that he wanted power brakes installed, and either on the same day, or the next, returned his automobile to WR Motors for that purpose. On the night of Friday, December 20, 1963, after W-R Motors had installed the power brakes but while it still had possession and control of Hill’s Mercury, one of its employees parked it on the company’s lot, adjacent to U.S. Highway 61-67. While so parked it was struck about 4:00 A.M. of the following morning by a car being operated by Gary Harbison, which ran off the highway.

At Wichman’s direction, Patricia DeClue, W-R Motor’s bookkeeper, telephoned Klein that morning and advised him of the occurrence. Klein told her, according to Miss DeClue, “ * * * ‘You’re covered. I’ll be right up and get all the details.’ * * * ” Klein arrived at the company’s office and after looking over the situation again said there was coverage. Later that morning, Wichman related, Klein talked to him and said, “we were covered and that he would get an adjuster down.”

About noon of that day Hill, unaware of the accident, came to W-R Motors to pick up his car. Wichman told Hill that he (personally) would replace his car, and a similar one was ordered and delivered to Hill on January 28, 1964. Wichman sold the damaged car to R. H. Counts and Sons Junk Yard for $2100. Before it was damaged the value of Hill’s car (and presumably of its replacement) was $4559.85, which established the amount of loss as $2459.85.

Presumably defendant declined to pay under the policy, and Wichman then obtained from Hill a notarized instrument headed “Subrogation Agreement” by which Hill, in consideration of $4600, the receipt of which was acknowledged, sold, assigned, transferred and subrogated to Wichman all claims, choses of action, rights and causes of action which he had or might acquire against defendant Aetna, Gary Harbison, or anyone else, “arising out of an accident which occurred on or about December 21, 1963, on the lot of the Wichman-Knight Incorporated at Festus, Missouri, for the loss of a 1964 Mercury Parklane Two-Door Hardtop, serial No. 4Z63Z500108 and any other losses incurred by me.” The agreement is dated April 21, 1964. Wichman testified that at the time he replaced Hill’s automobile, Hill agreed to execute any agreements or papers .necessary for Wichman to enforce his rights, and that he hadn’t obtained the subrogation agreement before April because he was still in hopes that defendant would pay. On the same day that the agreement was executed counsel for Wichman on his behalf wrote defendant Aetna a letter in which it was stated that while Hill’s car was in the custody of W-R Motors, Inc., a loss occurred, that because of defendant’s refusal to pay the loss Wich-man had personally been required to make the same good and had received an assignment from Hill of all of his rights under its policy as the owner of the lost property. Demand was made for payment of the loss. By a letter of April 28, 1964, defendant declined the demand, giving as its reason that there was no liability of its insured in the accident.

Wichman then instituted this action by filing a petition containing three counts. In his brief he describes them as “ * * * Count I, to enforce a contract of collision insurance; Count II, to enforce an oral contract of collision insurance and, Count III, for detrimental reliance upon oral representations. * * * ” The court rendered judgment in favor of plaintiff on Count I, but found against the plaintiff and in favor of the defendant on Counts II and III. Since plaintiff did not appeal from the judgment against him on the latter two counts it became final, and we are not concerned with those counts in this appeal.

The controversy between the parties centers on a narrow issue. Plaintiff asserts that “ * * * the insurance here was property damage insurance made for the benefit of W-R Motors’ customers and was not liability insurance.” Defendant maintains to the contrary, that the policy was one insuring only the legal liability of W-R Motors, Inc., and that it “ * * * obligated defendant to pay only in the case where the named insured became legally obligated to pay. * * * ” The contract is entitled “Garage Liability Policy,” and is divided into sections. Section 1, in turn, is divided into three parts, which describe the insurance afforded. In Section 2, the declaration page, the named insured is stated to be W-R Motors, Inc., and the policy period to extend from June 18, 1963 to June 18, 1964. It is specified therein that “The insurance afforded is only with respect to such of the following coverages and hazards thereunder as are indicated by specific premium charge or charges.” There then follows a schedule divided into columns headed “Coverages,” “Limits of Liability,” “Hazards,” and “Advance Premiums.” Since plaintiff contends that the insurance to which Hill was entitled was provided by Paragraph H of Part III, titled “Garage-keepers’ Legal Liability,” we may disregard all of the schedule except as to that part. It appears:

Coverage Limits of Liability Hazard Advance Premium
Part III — Garagekeepers’
Legal Liability
E.
F.
G.
H. Collision or Upset Coverage H — -$100 deductible. H$ 29. Limit of Liability includes $5,000 limit for loss to property other than automobiles

In Item 5 of the schedule the limit of liability under Paragraph H is stated to be $8,000.

Section 1 of the contract, as stated, is divided into three parts. The part on which plaintiff rests his claim is headed “Part III —Garagekeepers’ Legal Liability,” in bold face type, contains the subheadings, also in bold face type:

“Coverage E — Fire and Explosion
“Coverage F — Theft of the entire automobile
“Coverage G — Riot, Civil Commotion, Malicious Mischief and Vandalism
“Coverage H — Collision or Upset”

and then reads:

“The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of:
“H. loss to an automobile or other property of a kind customarily left in charge of a garage caused by collision of the automobile or such property with another object or by upset thereof, but the deductible amount stated in the declarations as applicable hereto shall be deducted from the total amount of all sums which the Insured shall become legally obligated to pay as damages because of each loss, and the limit of the Company’s liability shall be the difference between such deductible amount and the limit of liability stated in the declarations;

occurring while such automobile or other property is in the custody of the Insured for safekeeping, storage, service or repair (1) at a location stated in this policy or while temporarily removed therefrom in the ordinary course of the Insured’s business, or (2) away from the premises if the Insured is attending such automobile or property ; and the Company shall have the right and duty to defend any suit against the Insured seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient.”

Included in the policy is a statement of conditions. The fifth, here pertinent, provides :

“5. Action Against Company — Parts I and III — No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.
“Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under this policy to join the Company as a party to any action against the Insured to determine the Insured’s liability, nor shall the Company be impleaded by the Insured or his legal representative. Bankruptcy or insolvency of the Insured or of the Insured’s estate shall not relieve the Company of any of its obligations hereunder.
“Part II — No action shall lie against the Company unless, as a condition precedent thereto, there shall have been full compliance with all the terms of this policy nor until 30 days after proof of loss is filed and the amount of loss is determined as provided in this policy.”

It must be borne in mind that in the only count involved in this appeal plaintiff sues as the assignee of Hill. His claim is that Hill, in whose shoes he stands, was a third-party beneficiary directly entitled to insurance by the terms of the policy, attached as an exhibit to plaintiff’s petition. The only insured named in the policy is W-R Motors, Inc. Such a designation would not, however, preclude other persons or classes of persons, such as a customer of W-R Motors, from being covered if other portions of the contract of insurance so provided. Brugioni v. Maryland Casualty Co., Mo., 382 S.W.2d 707; Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 86 A.L.R.2d 925.

The fatal weakness in plaintiff’s claim, however, is that there is no other provision of the contract which directly afforded insurance to Hill for the damage to his car. While the word “collision” appears in the subheading under Part III, it is clear that so far as a customer of W-R Motors was concerned this was not a policy of “collision insurance” within the ordinary meaning of that term. 44 C.J.S. Insurance § 7, p. 476. Plaintiff cites 44 C.J.S. Insurance § 292 et seq., regarding various rules to be followed in the construction of contracts of insurance. But as that authority and our Missouri decisions point out, if the language employed in the policy is clear and unambiguous there is no occasion for construction, and it is the function of the court to give force and effect to the contract as it is written. 44 C.J.S. Insurance § 290, pp. 1139, 1140; Walker v. General American Life Ins. Co., Mo., 141 S.W.2d 785; Swaringin v. Allstate Ins. Co., Mo.App., 399 S.W.2d 131. Plaintiff also emphasizes his instructions to Klein when the policy was ordered, and Klein’s statements regarding the extent of the coverage at the time the contract was delivered. Whatever relevancy and materiality such evidence might have in another action, such as one for reformation, it is irrelevant to plaintiff’s action under Count I in which he claims that Hill was insured by the terms of the policy as written.

In clear and unmistakable language the contract provides that the defendant will pay on behalf of the named insured, W-R Motors, all sums which the insured shall become legally obligated to pay on the risks enumerated; and that no action shall be maintained against it until the amount of the insured’s obligation to pay shall have been finally determined, either by judgment against W-R Motors or by a written settlement agreed to by the defendant. In legal parlance it is a contract of indemnity against legal liability asserted against W-R Motors. Haines v. Harrison, 357 Mo. 956, 211 S.W.2d 489; Stedem v. Jewish Memorial Hospital Ass’n of Kansas City, 239 Mo.App. 38, 187 S.W.2d 469; Klotzbach v. Bull Dog Auto Fire Ins. Ass’n, Mo.App., 267 S.W. 39. No legal liability of W-R Motors to Hill for the damage to his car has been finally determined; in fact, so far as the record shows Hill never asserted a claim against W-R Motors. To sustain plaintiff’s contention here it would be necessary for us to rewrite, by construction, the contract of insurance so that it would become a contract between W-R Motors and defendant for the benefit of Hill. Stedem v. Jewish Memorial Hospital Ass’n of Kansas City, supra. This we are without authority to do. State Mut. Life Assur. Co. of Worchester, Mass. v. Dischinger, Mo., 263 S.W.2d 394; Forir v. Toman, Mo., 202 S.W.2d 32; Prange v. International Life Ins. Co. of St. Louis, 329 Mo. 651, 46 S.W.2d 523.

Accordingly, the judgment is reversed and the cause is remanded with directions to enter judgment in favor of defendant and against plaintiff on Count I of plaintiff’s petition.

PER CURIAM.

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

Accordingly, judgment is reversed and cause remanded with directions to enter judgment in favor of defendant and against plaintiff on Count I of plaintiff’s petition.

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


author: BRADY, Commissioner.

text:
    In the Matter of the ESTATE of Emma SOENGEN, Deceased. Ben KOSTEDT, Legatee, Appellant, v. Carrie WIPKE, Executrix of the Estate of Emma Soengen, Deceased, Respondent.
    No. 32436.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.

      Robert E. Staed, St. Louis, John W. Waller, Sullivan, for appellant.
    Walter H. Pollmann, St. Louis, Hale W. Brown, Kirkwood, for respondent.
   BRADY, Commissioner.

Considered upon the merits the issue presented by this appeal is whether “Item Fourth” of the last will and testament of Emma Soengen creates a trust in the amount of $10,000.00 for the benefit of her brother, the appellant, or if it constitutes an outright bequest to him of that sum. The probate court of St. Louis County held in favor of appellant, construed Item Fourth as an outright bequest, and its order of final distribution directed the executrix to pay that sum to the appellant. The circuit court reversed that decision and directed the $10,000.00 be placed in a trust fund for the appellant’s benefit. It is from that judgment this appeal comes to us. However, as will appear later herein, we do not reach this issue for the reason that we have determined the executrix had no right to appeal from the decision of the probate court. It follows that the circuit court lacked authority to act upon the appeal from the probate court, and, our jurisdiction to pass upon the merits of this appeal being derivi-tive, there is nothing here presented for our ruling. In re Whitsett’s Estate, 237 Mo.App. 1295, 172 S.W.2d 965. We will confine our statement of the facts to the issue herein decided and such other matters as will aid in the understanding of the general situation confronting us in this appeal.

The deceased was the sister of the appellant and also of the executrix, Carrie Wip-ke. In its pertinent parts the will with which we are here concerned consisted of Items Third, Fourth, and Fifth. It is unnecessary to set out the provisions of Item Third and it would unduly extend this opinion to do so as this item is very lengthy and detailed. Its recitation covers about five and one-half pages of the transcript. It is sufficient for our purpose to state that, with an attention to detail that is commendable, this item creates a grave trust to cover the care of the graves of deceased and her family including the executrix and the appellant. The creation of that “Trust” or “Trust Estate” (those terms are repeatedly used throughout this item), the powers and duties of the Trustees of which the scrivener of this will was one, compensation, provisions for successor trustees, bonds or the waiver of any requirement therefor, a provision barring anyone who contests the provisions of this item from receiving anything under other provisions of the will, and other related matters are meticulously set forth in detail in this item of the will.

The care, or lack of it, with which Item Fourth was drawn appears plainly from its wording. It reads: “ITEM FOURTH: I hereby give, devise and bequeath the sum of Ten Thousand Dollars to my beloved Brother, Ben Kostedt, if he survive me, provided however, that my beloved Brother shall actually need the money, or for any purpose, and the Executrix or Successor Executor of this My Last Will and Testament shall determine whether or not Ben shall need the money, but I do hereby direct my Executrix or Successor Executor to be very lenient and kind to my beloved Brother, Ben Kostedt, in determining whether or not he is to receive the Ten Thousand Dollars, and Ben’s own statements as to whether he needs the money shall not be controlling and upon the death of the said Ben Kostedt, should there be any funds remaining, then the funds so remaining then, after payment of his last illness and burial expenses shall be turned over to the Trustees or Trustee under the Grave Care Trust herein before created and added to that amount described in Item Third hereof and it shall become a part of the Trust Fund subject to all the provisions pertaining to the Trust Fund.”

Item Fifth provides for bequests of $1,-000.00 each to the deceased’s other brothers and sisters, with the exception of the executrix who is made the beneficiary of the residuary clause.

It is unnecessary to detail the testimony. In general that offered on behalf of the executrix and legatee was to the effect that the appellant was a drunkard and that this was known to the deceased. The testimony offered by the appellant was in contradiction thereof. The executrix, her husband, and two other sisters over objection were allowed to testify to the effect the deceased intended to leave this money as a trust. In addition, and again over appellant’s objection, the scrivener who prepared this will was allowed to testify that: “A. She wanted Ben to have the use of ten thousand dollars, of which her twin sister Carrie was to have absolute control over that money and to determine the needs of Ben. Q. She told you this? A. She did.” He also testified that in drawing this will, he intended to set up a trust both in Item Third and Item Fourth of the will.

As stated earlier we do not reach the merits of this controversy and thus are not required to rule upon appellant’s contentions that the trial court improperly admitted parole evidence as to the deceased’s intention and desires with regard to the appellant’s share of her estate. Neither are we required to rule upon appellant’s contention that, as a matter of law, Item Fourth must be construed as an outright bequest on the grounds that an estate once granted cannot be cut down by words less clear than those creating or granting the estate. As will appear later herein, we do rule upon the other ground advanced by the appellant in support of his contention this judgment should be reversed; i. e., that this appeal should have been dismissed by the circuit court.

When the probate court found for the appellant and directed the payment of $10,-000.00 to him, the executrix filed her “Affidavit for Appeal” which reads: “Carrie Wipke, as Executrix of the estate and legatee, being duly sworn on her oath says that she appeals from the order of the Probate Court of March Sth, 1964, whereby she was ordered to pay $10,000.00 in cash to Ben Kostedt; that as Executrix and legatee it is only that order of March 5, 1964, pertaining to Item Fourth of the Will of Emma Soengen, deceased; that the appeal is taken on this 3rd day'of March, 1964 in the above entitled cause and is not taken for the purpose of vexation or delay hut because the Affiant believes that the appellant is aggrieved by the decision of the Court.” (Emphasis supplied.) The order of the probate court granting the appeal and transferring its files in this matter to the circuit court states: “An affidavit for appeal to the Circuit Court of St. Louis County, having filed herein this date by the Executrix of the estate of the above deceased, * * (Emphasis supplied.)

The trial court made “Findings of Fact”. Among these is the finding the appeal from the probate court “ * * * was taken by appellant ‘as executrix of the estate and legatee.’ ” In its “Conclusions of Law” the trial court held: “Appellant had the right and authority to appeal from the Order of Distribution of the Probate Court as an interested party within the meaning of Section 472.160 V.A.M.S. as further defined by Section 472.010(15) V.A.M.S.”

§ 472.160, RSMo 1959, V.A.M.S., requires the interested person seeking to appeal from an order, judgment or decree of the probate court to have been “aggrieved thereby”. See also § 512.020, RSMo 1959, V.A.M.S., with regard to appeals in civil cases in general. The rule in this jurisdiction is that in order for a party to have the right of apperl as “aggrieved” by the judgment he must have a direct pecuniary interest in the result of the litigation. Freeman v. De Hart, Mo.App., 303 S.W.2d 217 [5,6], 1. c. 221. This is in keeping with the general rule. 95 C.J.S. Wills § 517. It is well settled that Mrs. Wipke’s status as executrix does not give her such an interest. In re Fusz’ Estate, Mo., 397 S.W.2d 595, squarely so holds. See also O’Connell v. Dockery, Mo.App., 102 S.W.2d 748.

Can the “executrix and legatee” maintain this appeal because of her interest in the estate as residuary legatee? In this connection it must be noted that should Item Fourth be construed to create a trust as the executrix and legatee contends, she still would have no direct pecuniary interest for the reason the provisions of that item require that any amount left in that fund upon the death of the appellant must then go to the trust created in Item Third of the will. Mrs. Wipke would not share therein as residuary legatee nor is she a trustee for the trust created under that item. Of' course, if the appellant would prevail and provisions of Item Fourth are construed as an outright gift, the same result would obtain. It follows that Mrs. Wipke’s status as legatee does not give her the pecuniary interest in the result of this litigation necessary to constitute her an interested party “aggrieved” by the decision and she cannot maintain the appeal from the decision of the probate court. In State ex rel. St. Louis Union Trust Co. v. Sartorius, 350 Mo. 46, 164 S.W.2d 356, at 1. c. 358, it was held that (quoting from Hall v. Goodnight, 138 Mo. 576, 37 S.W. 916, 1. c. 919): “ * * * ‘A party to an action, under our Code, cannot successfully ask for a reversal of judgment because of an error which was not prejudicial to his substantial rights, however greatly the result may appear to him to lack the perfect symmetry which should characterize the performances of courts of law.’ ”

No doubt because counsel realizes the weakness of the contention the executrix and legatee can maintain this appeal, the statement is made in her brief that she can do so for the reason she was the trustee of the trust allegedly created by Item Fourth of the will. The simple answer to that contention is that from the very inception of this controversy until the present time she has proceeded as "executrix and legatee”. It was in that capacity that she appeared in the probate court and it was in that capacity that she filed her affidavit for appeal and proceeded in the circuit court. It was not until she filed her brief in response to the appellant’s brief that she gave any indication that she wished to proceed in any manner other than as “executrix and legatee”. Having thus proceeded from the inception of this action and even having sworn an affidavit in her capacity as executrix and legatee, she cannot now be heard to claim that she was really proceeding as trustee.

The judgment of the circuit court must be reversed with the result that the order of final distribution as made by the probate court remains in full force and effect.

PER CURIAM.

The foregoing opinion by BRADY, C., is adopted as the opinion of the court. The judgment of the circuit court is reversed with the result that the order of final distribution as made by the probate court remains in full force and effect.

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


author: TOWNSEND, Commissioner.

text:
    CITY OF FLAT RIVER, Missouri, a municipal corporation, Plaintiff-Appellant, v. Odessa EDGAR, Defendant-Respondent.
    No. 32479.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.

      Smith & Colson, Farmington, J. B. Schnapp, Fredericktown, for appellant.
    Roberts & Roberts, Farmington, for respondent.
   TOWNSEND, Commissioner.

In this condemnation proceeding a nine-man verdict for $4000 in favor of defendant-landowner was returned and judgment was entered thereon. A hearing was had upon defendant’s motion for a new trial at which defendant adduced evidence in support of two of her assignments of error, namely,

“14. Because two members of the jury were members of a religious sect constitutionally opposed to serving on a jury and had been advised by the leaders of their sect or church not to serve on the jury, and because said jurors refused to take a part in the deliberations and simply remained silent, stating that they would do whatever the majority agreed upon.
“15. The defendant did not know that said jurors belonged to a religious sect, as such, and that they would not take a part in deliberations and help arrive at a verdict, and that the defendant was not negligent in failing to discover that said jurors would refuse to take any part in the deliberations or action toward arriving at a verdict.”

At the hearing on the motion the evidence introduced by defendant consisted of the deposition of the foreman of the jury in which he testified

“Q. Reverend Short, after the case was tried, and the argument to the jury, did the twelve men and women retire to a jury room to deliberate upon the issues as given to you by the Court in its instructions ?
A. Yes.
Q. I will ask you, Reverend Short, whether all twelve of the members of that jury participated in the deliberation?
A. No, not really.
Q. Will you state how many did not participate ?
A. Two.
Q. Will you tell us what they said if anything concerning their participation?
A. They simply said, ‘We don’t have to take any part in this, do we?’ ‘We don’t have to enter into the deliberations’.
Q. Did they make any statement as to what the rest of you might do, or what could be done?
A. One of them said whatever we did was all right.
Q. Were there some ballots taken?
A. Yes, sir.
Q. Did these two jurors ballot? A. No.
Q. Did these two jurors participate in any of the discussion or make any statements concerning the matter other than to say that whatever you all did would be all right with them?
A. No.
Q. Was any statement made by either of these two jurors concerning their church, or matters of that kind?
A. No.
Q. Had there been previously in other jury deliberations ?
A. Yes.
Q. On previous juries had these same two jurors served when you had also served on the jury?
A. Yes. On one other occasion.
Q. On that occasion did these two jurors take any part in the deliberations ?”
* * * * * *
“A. They took some part in the deliberations before.
Q. Did they make any statement at any time when you were serving with them on a jury concerning their church or activities ?
A. Yes, sir. In the previous instance you just referred to.”
⅜ ⅜ ⅜ ⅜ ⅜ *
“Q. What was their statement concerning their church?
A. One said, ‘My church doesn’t want me to take any part in this anyway.’ ”

Objections by plaintiff to all questions and answers were appropriately made both upon the taking of the deposition and the reading of the deposition into the record.

The court entered its order sustaining defendant’s motion for a new trial “on the ground that two of the jurors selected to hear said case were not qualified jurors (points 14 and IS of defendant’s motion for new trial).”

The transcript shows that upon voir dire examination the jurors were asked the usual question whether any one of them knew of any reason why he couldn’t render a fair and impartial verdict; there was no expressed answer.

The only point made by appellant is that the evidence upon which the court based its decision was incompetent and that for the reason that a juror will not be heard to impeach a verdict, citing, among other cases, Romandel v. Kansas City Public Service Co., Mo., 254 S.W.2d 585; Reich v. Thompson, 346 Mo. 577, 142 S.W.2d 486, 129 A.L.R. 795. Respondent counters that the evidence did not go to the impeachment of the verdict but to the qualifications of the two persons to sit as jurors in the first instance.

It has been held by this court that the rule which excludes juror- evidence which impeaches a verdict is limited to matters inherent in the verdict, Sadlon v. Richardson, Mo.App., 382 S.W.2d 9, that is to say, for the exclusion rule to have application the proffered evidence must relate to matters involved in the conduct of jurors in arriving at a verdict, that such evidence must relate to the verdict qua verdict. Here however we are dealing with a matter more fundamental even than a verdict; we have had presented to us the inescapable question of the capacity, the legal competence, of a group of persons to render a lawful verdict.

Under the constitutional guarantee of jury trial, a party litigant is entitled, unless he waives the right, to have his case tried by twelve impartial qualified jurors. Implicit in “trial” by twelve impartial qualified persons is the concept that there be consideration of the issues and the evidence and deliberation thereon upon the part of all twelve and that concept finds expression in our decided cases: “Even though three-fourths of them can decide a civil case, parties are entitled to have that decision, whether for them or against them, based on the honest deliberations of twelve qualified men.” Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695, 698, 127 A.L.R. 711; Piehler v. Kansas City Public Service Co., 357 Mo. 866, 211 S.W.2d 459, 463. The testimony of Mr. Short, the jury foreman, establishes that the two persons in question did not participate in the jury’s deliberations; not only did they decline to participate in the matter of considering the evidence and the issues but they expressly surrendered to the other ten their function of arriving at a decision. Such conduct on their part constituted a complete repudiation of the answers which they gave upon the voir dire examination that they would render an impartial verdict. That those answers were implied from their silence is immaterial. The questions of counsel called upon each to state whether there was any reason why he could not render a fair verdict. Silence was as emphatic as if the particular venireman had said “No”, and was a representation that he would participate in the process leading to a verdict. ' That representation was a misrepresentation — a false answer — resulting from the concealment of attitude and intention, if the intention not to participate existed at the time of the examination.

The testimony of the jury foreman makes clear the reasons why the two persons declined to act as jurors — their adherence to the tenets of their church immobilized them. No matter how sincerely their religious convictions inhibited them from so acting, that inhibition did not justify the making of false representations. Being false, such representations disqualified them as jurors. The disqualification flowed from their answers and their subsequent inability to participate in the rendering of any verdict. We may take it that if that inability existed at the time of jury deliberations it existed at the time of the voir dire examination. They failed to disclose that existent inability to render a verdict although both counsel put to them the question regarding rendition of a fair and impartial verdict. Hence, the admission of the testimony of the jury foreman did not violate the rule that juror evidence cannot be admitted to impeach the jury verdict.

We cannot say that the lack here of two qualified jurors was not prejudicial.

The judgment is affirmed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C, is adopted as the opinion of this Court. Accordingly, judgment is affirmed.

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


text:
    Willard B. MILITZER and Patsy R. Militizer, Plaintlffs-Respondents, v. STATE FARM FIRE AND CASUALTY COMPANY, a corporation, Defendant-Appellant.
    No. 32487.
    St. Louis Court of Appeals. Missouri.
    Feb. 21, 1967.

      Carter, Fitzsimmons & Brinker, Bernard C. Brinker, Clayton, for appellant.
    Gregory D. O’Shea, St. Louis, for respondents.
   TOWNSEND, Commissioner.

Action upon household goods fire insurance policy.

The appellant issued its policy to respondents for the period January 23, 1962 — January 23, 1965, covering on household goods while located at a named address in Lemay, Missouri, and not elsewhere. The premium of $23.49 for the policy period was prepaid. In November, 1962 the respondents moved their household contents to Belleville, Illinois, where they were destroyed by fire on February 6, 1963. By endorsement the policy limitation of coverage to the originally named location was in part removed by providing that in the event of the removal of the insured goods to another residence of the insured in Missouri the policy should cover such removed property at the new location. The endorsement provided further: “The Insured may apply up to ten per cent (10%) of the amount specified for the household and personal property item to cover property described thereunder * * * belonging to the Insured * * * while elsewhere than on the described premises but within the limits of that part of Continental North America included within the United States of America * * By stipulation the parties agreed that the loss of household goods exceeded the $3000 limit of the policy. Appellant at all times admitted its liability to the extent of $300 and it was so stipulated by the parties; appellant denied liability beyond that sum while respondents at all times claimed that they were entitled to $3000. The action was tried to the court which denied appellant’s motion to dismiss, filed at the close of plaintiffs’ evidence. Appellant stood on its motion and presented no evidence. After making certain other findings of fact the court found that “the insurance continued in full force and effect after the loss and that defendant, or their agents, did not tender any refund premiums to plaintiffs for the time when defendant alleged that there was lack of coverage.” Verdict and judgment in favor of plaintiffs for $3000 followed.

Plaintiffs’ theory of the case is plain. It rests upon those precedents which deal with the situation where the insurer denies liability under a policy because prior to a loss the goods have been removed from the location to which coverage was limited by the express terms of the policy. Under some circumstances, if the insurer denies that the loss was covered because of such removal but retains the unearned portion of the premium without making tender of its return, the insurer will be estopped to deny liability on the policy. Thus in Luthy v. Northwestern National Insurance Co., 224 Mo.App. 371, 20 S.W.2d 299, the policy provided that upon such removal the policy should become void; the insurer was held estopped to claim avoidance of the policy because there was no tender of the unearned part of the premium. Other cases involve the simple policy contract provision that the coverage shall apply only in the case of loss at the designated location.

Implicit in such holdings — and sometimes expressed — is the proposition that upon first learning of the removal of the goods after the loss the insurer has the privilege of cancelling the policy and so relieving itself from liability but that such privilege is conditional upon a tender of the unearned part of the premium. If that tender has not been made the privilege of cancellation — after the loss — does not exist. From this it is supposed to follow that the insurer is liable for the loss at the non-designated location despite the expressed contract exclusion of such a loss — all in the name of “non-forfeiture”.

The present case does not fall within the ambit of the precedents upon which the plaintiff relies.

Missouri cases dealing with the problem of removal of goods from the covered location may conveniently be divided into two categories: 1. Those in which the insurer has notice of the removal before a loss occurs and 2. Those where such notice is had only after a loss. In the first category a failure of the insurer to cancel the policy, after notice, has been held, after loss has occurred, to be a waiver of the “forfeiture” of the policy. Shutts v. Milwaukee Mechanics’ Insurance Co., 159 Mo.App. 436, 141 S.W. 15; McIntyre v. Liverpool, London & Globe Insurance Co., 131 Mo.App. 88, 110 S.W. 604; Bergerson v. General Insurance Co. of America, 232 Mo.App. 549, 105 S.W.2d 1015. The same rationale has been applied in the matter of a burglary policy. Block v. United States Fidelity & Guaranty Co., 316 Mo. 278, 290 S.W. 429 (Claim II). And cf. Millis v. Scottish Union and National Insurance Co., 95 Mo.App. 211, 68 S.W. 1066. In the second group, where notice of the removal has been had only after the loss the failure of the insurer to tender the unearned part of the premium has been held to result in an estoppel to deny liability. Luthy v. Northwestern National Insurance Co., supra; Painter v. Concordia Fire Insurance Co., Mo.App., 256 S.W. 531 (waiver plus additional trouble and expense to insured). In an analogous situation, where the policy excludes liability if the insured goods are or become mortgaged, the failure of the insurer after notice to tender a return of the unearned premium results in an estoppel of the insurer to “forfeit” the policy. Leer v. Continental Insurance Co., Mo.App., 250 S.W. 631; Dyer v. American Insurance Co., 211 Mo.App. 476, 244 S.W. 964. See Avery v. Mechanics’ Insurance Co., Mo.App., 295 S.W. 509. And see Caldwell v. City of New York Insurance Co., Mo.App., 245 S.W. 602. There is no occasion here to pause for a consideration of the difference between waiver and estoppel under the above named cases. Under the described circumstances the effort of the insurer to avoid liability is unavailing.

The cases cited in the last paragraph are characterized by the insurer’s repudiation of any liability under the insurance policy. Such is not the case here. The defendant has at all times admitted liability on the contract. It has in no way attempted to “forfeit” the policy. Admitting liability, it has simply insisted that the contract be honored according to its terms.

When the policy was issued to plaintiffs they were fully informed that they had insurance coverage of their household goods to the limit of $3000 as long as such goods were located in a residence occupied by them in Missouri and that the coverage was limited to three hundred dollars if the goods were located outside the State of Missouri. And so the coverage was for a variant amount, dependent upon circumstances; it was never, under the express terms of the contract, reduced to zero. The consideration for the promises of the insurer was the payment of $23.49. That consideration was not apportioned at so much for coverage within the State of Missouri and so much for coverage outside the state — or so much for the period of $3000 coverage and another sum for the period of only three hundred dollars coverage. In the nature of things there could be no such allocations. The consideration paid was indivisible. The transaction was entire in the sense that the whole of what was done on one side was exchanged for all the promises made on the other. And that which the insurer promised remains enforceable.

The only cases cited to us which are comparable to the instant case support the contention made by the defendant that, as long as some coverage is provided by the policy and there has been no attempt to “forfeit” the policy, there is no occasion for the insurer to return any part of the premium. Thus in Spink v. Mercury Insurance Company, Mo.App., 260 S.W.2d 757, the policy prohibited other insurance on the insured personalty but provided that if there were other insurance the relative policy should apply only as excess coverage; the defendants relied upon the fact that there was no tender of return premium to show that the prohibition had been waived. The court differentiated the case before it from those cases where “The insurer is held * * * to have waived a forfeiture by reason of a failure to return the unearned premiums at the time it disclaimed liability for the loss”; it stated: “We have no such situation here. The policy was not forfeited and, while it was not in force as to the loss here involved (emphasis supplied), it continued, by its terms, to insure as excess insurance property not damaged and also continued to cover other risks” not covered by other policies.

In Graham v. Gardner, Mo.App., 233 S.W.2d 797, where an employer’s automobile liability policy was in question, a change in employment conditions eliminated a certain portion of the coverage but left the policy in force as to the balance of the stated coverage. When the insurer denied liability in the area of the eliminated coverage, the appellate court summarized the situation in these words: “The garnishee [insurer]. does not contend that the policy was not in force at the time of the accident; nor does it contend that the change of drivers worked a forfeiture of any kind. The case does not involve any question of cancellation, suspension, avoidance or forfeiture of the policy.” The court declined to consider the contention that “the garnishee cannot declare a forfeiture and retain the premium it collected” because the matter of return of premium was not raised in the pleadings or presented to the trial court. In this regard, however, the court reiterated its previous conclusion by saying: “Furthermore, no question of forfeiture is here involved.”

In an endeavor to avoid the conclusion that respondents had coverage on their household goods at all times, counsel emphasizes that the wording of the ten per cent clause states that “the insured may apply up to ten per cent of the amount specified” while the goods are elsewhere than in Missouri. From this counsel concludes that it was at the insured’s option to accept or reject the ten per cent coverage. When this clause was placed in the policy and the insured had paid the premium, the insurer created in the insured a power to hold the insurer liable in case of loss to the extent of the loss not exceeding the ten per cent limit. The power so created is one that the insurer cannot extinguish as long as the policy remains in force, because that power, expressed in the insurer’s promise, is part of the exchanged consideration for which the insured paid his money. It cannot be contended that such a power is valueless. And to further contend that an insured would not exercise the power would be a departure from the world of realism. But the real question here is whether or not the insureds had some coverage, in the broad use of that term, at all relevant times. And it cannot be concluded that they had no coverage at the moment when they removed their household goods from Missouri.

Plaintiffs made an effort to show that after removal to Illinois and before the loss the defendant had notice of the removal, and, presumably, gave an implied consent for full coverage at the new location by failing thereupon to cancel the policy. Mrs. Militzer testified to a telephone conversation with a person whom she thought to be Mr. McLaughlin, a local district agent of the defendant at Belle-ville, in which she advised of the removal. Mr. McLaughlin, called as plaintiffs’ witness, denied that he had ever had any conversation with Mrs. Militzer prior to the loss. Without passing upon the question whether notice to such an agent can be notice to the insurer it is sufficient to say that, even assuming that it could be, plaintiffs have not sustained the burden of showing such prior notice.

Among the findings of the trial court in this case were the following:

(1) That, after report of the loss, “defendant, or their agent, refused to pay said loss, alleging that the change in location was a defense to plaintiffs’ claim.”
(2) “That the insurance continued in full force and effect after the loss and that defendant, or their agents, did not tender any refund premiums to plaintiffs for the time when defendant alleged that there was lack of coverage.”

By its motion to set aside the judgment and to enter judgment for defendant in accordance with its motion filed at the close of plaintiffs’ evidence, defendant asserted that the judgment was not sustained by the law or the evidence and more particularly that the finding designated above as (1) was contrary to the stipulation of the parties that defendant was at all times willing to pay the sum of $300, which defendant claims was the only amount owing to plaintiffs under the terms and conditions of the policy. More particularly defendant objected to the finding designated above as (2) in that by stipulation of the parties defendant never alleged that there was lack of coverage.

We find that defendant’s exceptions to such findings are well taken. In view of what has heretofore been said it must be found that the judgment is not supported by the law or the evidence.

By its brief defendant has consented that judgment for three hundred dollars be entered in favor of plaintiffs.

The judgment is reversed and the cause remanded to the Circuit Court with directions to enter judgment for three hundred dollars in favor of plaintiffs, with costs assessed against plaintiffs.

PER CURIAM:

The foregoing opinion by TOWNSEND, C, is adopted as the opinion of this Court. Accordingly, judgment is reversed and the cause remanded to the Circuit Court with directions to enter judgment for three hundred dollars in favor of plaintiffs, with costs assessed against plaintiffs.

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

       The only fire policy case, cited by plaintiff, which makes reference to this question is Bergerson v. General Insurance Company, supra, where only part of the insured goods were taken to another location and presumably coverage was still in ef-feet on those goods retained at the original location. The court declined to pass upon the effect of such fact because the point was first raised in the insurer’s reply brief to which plaintiff had no opportunity to respond.