text:
    The STATE of Texas, Appellant, v. James Marion COOK et al., Appellees.
    No. 4535.
    Court of Civil Appeals of Texas. Waco.
    Oct. 13, 1966.
    Rehearing Denied Nov. 10, 1966.

      Waggoner Carr, Atty. Gen. of Texas, David L. Boles, Asst. Atty. Gen., Austin, for appellant.
    Dunnam & Dunnam, Bedford D. Edwards, Waco, for appellees.
   OPINION

WILSON, Justice.

In this condemnation case the condemnor complains, as we understand, that the lessee and the fee owner agreed as to lessee’s interest in the recovery after the evidence was concluded; and agreed that the former would look to the latter for his compensation, thereby obviating the necessity of submitting issues • to the jury as to lessee’s damages. Condemnor’s actual lament, as we comprehend it, is that its motion for instructed verdict based on failure of proof of these damages was thereby emasculated.

Deducing that since the lessee utilized peremptory jury challenges and cross-examined witnesses before abandoning his adverse position, he is debarred from settlement, appellant implies that having been afforded these privileges as an involuntary party joined at its instance, lessee must go down to the wire as an adversary, or suffer a peremptory instruction.

Objection was not made at the trial. There is nothing in the record to indicate any collusion, mala fides, or circumventing of orderly procedure; nor is there a showing that harm resulted. We find nothing to show the agreement was unauthorized or improper.

Beyond this, the condemnor is not concerned with the division or apportionment of the recovery since lessor and lessee are satisfied. See 166 A.L.R. 1211 et seq.; 22 Tex.Jur.2d Sec. 146.

Friendly comppsition of controversy is encouraged, not impeded, by judicial policy. Ross v. Seip, Tex.Civ.App., 154 S.W.2d 958, writ ref.; Betty v. Tuer, Tex.Civ.App., 292 S.W. 271. Appellant’s other points concerning existence or sufficiency of supporting evidence have been considered and are overruled.

Affirmed.


source: Caselaw Access Project

author: FANNING, Justice.

license: Public Domain

text:
    J. L. ROTHCHILD, Appellant, v. FANNIN BANK, Appellee.
    No. 7773.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 25, 1966.
    Rehearing Denied Nov. 15, 1966.
    J. L. Rothchild, pro se, Herman W. Mead, Houston, for appellant.
    Walter S. McMeans, Houston, for ap-pellee.
   FANNING, Justice.

A summary judgment case. Plaintiff-appellee bank sued defendant-appellant upon four promissory notes executed by defendant-appellant to said bank, with the bank alleging it was the owner and holder of said notes and indebtedness, and that the same was past due and unpaid, and that the amount of principal and interest due by defendant to plaintiff bank was $19,752.45, and a 10% attorney’s fee as provided in the note, of $1975.25 was also due and owing, etc. Photostatic copies of the four notes were attached to plaintiff’s original petition as exhibits.

Defendant filed a pleading entitled “Defendant’s Answer and Special Exceptions”. The pleading consists of numerous special exceptions and a general denial. The pleading was sworn to.

Plaintiff filed a motion for summary judgment alleging the sum of $19,752.45 principal and interest due and attorney’s fee in the sum of $1,975.25. Plaintiff also filed a supporting affidavit which contained all the necessary factual averments to support a summary judgment for the amounts above referred to in favor of the bank against defendant-appellant, if not controverted by the defendant-appellant. Photostatic copies of the fronts and the backs of the four notes in question were attached to and made a part of the supporting affidavit.

Defendant did not controvert defendant’s motion for summary judgment and filed no controverting affidavits, depositions, or other evidentiary matter, but instead, chose to rely upon his pleadings. The record is devoid of any showing that defendant’s special exceptions were ever called to the attention of the trial court, and were waived. Kellum v. Pacific National Fire Insurance Company, Tex.Civ.App., 360 S.W.2d 538, wr. ref., n. r. e. Furthermore, such special exceptions were not well taken. Thus the only matter remaining in defendant’s pleadings, outside of the special exceptions, was a sworn general denial.

The trial court granted plaintiff’s motion for summary judgment in the sum of $19,191.46 and attorney’s fee in the amount of $1,919.15, with interest and costs. Defendant has appealed.

Formal issues framed in the pleadings are not controlling where extrinsic evidence demonstrates the absence of any true issue. McFarland v. Connally, Tex.Civ.App., 252 S.W.2d 486, no writ; Reese v. Davitte, Tex.Civ.App., 255 S.W.2d 1015, wr. dism.; Hansen v. Eagle Mountain-Saginaw Independent School District, Tex.Civ.App., 373 S.W.2d 817, wr. ref., n. r. e.; Baker v. City of Fort Worth, Tex.Civ.App., 380 S.W.2d 128, wr. ref., n. r. e.; Gray v. Storey, Tex.Civ.App., 383 S.W.2d 487, no writ.

Generally a genuine issue of a material fact is not raised by allegations in a pleading when they are controverted by affidavits or other evidence, in the absence of counter-affidavits or evidence to sustain them. Baxter v. Beaupre, Tex.Civ.App., 295 S.W.2d 718, no writ; Gray v. Storey, Tex.Civ.App., 383 S.W.2d 487, no writ.

Also where a party’s motion for summary judgment has support in extrinsic evidence which will sustain his contention that there is no genuine issue of fact, the opponent should be required to come forward with more than a mere denial pleading, even a sworn one, in order to overcome the force of the motion. McDonald, Texas Civil Practice, Vol. 4, 1962 Cumulative Supplement § 17.26.3a, p. 47; Savoy v. Graham Memorial Auditorium Association, Inc., Tex.Civ.App., 329 S.W.2d 352, no writ; Gray v. Storey, Tex.Civ.App., 383 S.W.2d 487, no writ.

Appellant contends to the effect that because the trial court entered a summary judgment in an amount less than alleged by plaintiff’s pleadings and supporting affidavit that necessarily the trial court determined an issue of fact thus precluding a summary judgment. The variance in the pleadings and the judgment was in favor of the defendant-appellant. The record would support the larger amount sued for in the pleadings. If the trial court erred in granting a summary judgment in an amount less than that proven then such was an error in favor of the defendant-appellant and he will not he heard to complain of it. See Turinsky v. Turinsky, Tex.Civ.App., 359 S.W.2d 114, no writ, wherein it was stated:

“ * * * the court in calculating the amount of the judgment did not charge appellant with installment payments for child support which had become due more than ten (10) years prior to the date of the filing of the suit in Texas. This action by the trial court resulted in the reduction of the amount of the judgment from the $17,000 sued for to the lesser amount of $15,540. If such action was error on the part of the trial court, it was an error in appellant’s favor, so he will not be heard to complain about it. Providential Inv. Corp. v. Dibrell, Tex.Civ.App., 320 S.W.2d 415; Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 148 A.L.R. 555; 4 Tex. Jur.2d 267-268.” (Emphasis added).

Appellant, among other things, contends that the trial court erred in granting the summary judgment when the original notes were not introduced in evidence. There is no showing in the record itself that the original notes were introduced in evidence although there is a recital in the judgment to the effect that the court had examined the original promissory notes upon which the suit was founded. However, it is our view that although the record does not affirmatively show that said original notes were formally introduced in evidence, the summary judgment can nevetheless be supported because sworn copies of the original notes were attached to plaintiff’s affidavit in support of its motion for summary judgment. In this connection see Alexander v. Houston Oil Field Material Company, Tex.Civ.App., 386 S.W.2d 540, no writ, wherein it was stated:

“In the summary judgment proceeding, appellee could have discharged its burden without producing and introducing the original note under Rule 166— A(e) T.R.C.P. by attaching a sworn or certified copy of the note to a proper affidavit or by serving such a copy with the affidavit.”

Finding no reversible error in the record, the judgment of the trial court is affirmed.


author: WESTHUES, Special Commissioner. PER CURIAM:

text:
    William R. GIRTH, Plaintiff-Appellant, v. BEATY GROCERY COMPANY, Inc., a Corporation, and Hy-Klas Food Products, Inc., a Corporation, and LeRoy Lane, Defendants-Respondents.
    No. 52089.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.
    Maurice Pope, St. Joseph, Alfred A. Fiedler, Omaha, Neb., for appellant.
    Strop, Watkins, Roberts & Hale, by O. W. Watkins, Jr., St. Joseph, for respondents.
   WESTHUES, Special Commissioner.

Plaintiff William R. Girth filed this suit in the Circuit Court of Buchanan County, Missouri, against defendants Beaty Grocery Company, Inc., a corporation, and Hy-Klas Food Products, Inc., a corporation, and LeRoy Lane to recover damages in excess of $40,000 for personal injuries alleged to have been sustained in a collision of a car operated by plaintiff and a truck operated by defendant.

Plaintiff alleged in his petition that the collision occurred on December 22, 1961, in the State of Iowa, on U. S. Highway No. 59, eight miles north of Shenandoah. Plaintiff stated that he was a resident of Missouri and that defendant corporations were Missouri corporations, having their main place of business in the City of St. Joseph, Missouri; that defendant LeRoy Lane, a Missouri resident, was the driver of the truck which collided with plaintiff’s car; that said truck was owned by the defendant corporations.

Plaintiff filed his petition on April 30, 1965, three years and four months after the alleged injuries were sustained.

The defendants filed a motion to dismiss the petition on the ground that by “the provisions of Chapter 614 of the statutes of Iowa, actions for personal injuries are barred by limitations within two years” ; that by virtue of Sec. 516.190 (formerly Sec. 516.180), V.A.M.S. (1965 Pocket Part), a cause of action barred by the laws of the State of Iowa where the cause originated is likewise barred in Missouri. The trial court sustained the motion and dismissed the petition. Plaintiff appealed to this Court.

In his brief, plaintiff says that the question to be decided in this case is this: “Does the two-year Iowa Statute of Limitations apply under the ‘center of gravity’ theory or does the Missouri five-year Statute of limitations apply to this action?”

In the argument of the brief, plaintiff states that “The Court is faced with a somewhat ‘new’ theory of the law of conflicts, however, we will cite cases wherein the Courts of other states have completely bypassed the Statutes of the State wherein an accident actually occurred. This has been called the ‘center of gravity’ theory. It has been principally applied in ‘wrongful death limitation’ Statutes and ‘Guest Statutes’, however, if it is applicable as to one Statute it should apply as to all statutes, yes, including a Statute of Limitations.”

The statutory provisions applicable to the questions before us are as follows: Section 614.1(3), Iowa Code Annotated, provides that “Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:

“3. * * * Those founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statute penalty, within two years; * *

Our statute, Section 516.190, supra, governing this situation, provides that “Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.”

In his brief in Point Relied On, the plaintiff stated that “Whenever the Courts Are Confronted with a Conflict of Laws Problem As to Which Law Governs, the Law to Be Applied Is That of the State of Domicile of the Parties If They Are All Residents of the Same State.” Cases were cited, a number of which we shall consider in this opinion.

In his brief, plaintiff has completely ignored our statute, Section 516.190, supra. It was not even mentioned. We are asked to by-pass the Iowa Statute of Limitations on the theory that that statute conflicts with our statute of limitations. However, Section 516.190 makes the Iowa limitation statute our own. So, there is no conflict. The Legislature has the authority and power to enact statutes of limitations and this Court may not ignore or by-pass such laws. This question has been before the courts of this state on a number of occasions. Christner v. Chicago, R. I. & P. Ry. Co., 228 Mo.App. 220, 64 S.W.2d 752, 1. c. 754(1-4); Devine v. Rook, Mo.App., 314 S.W.2d 932,1. c. 935(3); Jenkins v. Thompson, Mo., 251 S.W.2d 325, 1. c. 328(3). In each case, it was held that Section 516.190 controlled cases such as that now before us. The fact that all the parties were residents of this state does not alter the situation. The statute is plain and unambiguous. Many states have adopted similar statutes. See 53 C.J.S., Limitation of Actions § 31, p. 976, and cases there cited.

We rule that no conflict of law problem is presented but that under our Missouri statute of limitations, Section 516.190, plaintiff’s cause was barred at the time his petition was filed.

Plaintiff briefed and cited cases on the theory that the Iowa limitation statute was in conflict with our five-year statute of limitations governing tort actions. As we have pointed out, such is not the case because plaintiff’s action comes under our statute, Section 516.190, and not under the five-year statute. Plaintiff cited cases such as Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526. In that case, the New York court refused to follow a Massachusetts statute limiting the amount recoverable in a death case. The court held such a limitation to be against the public policy of New York. A like ruling was made in the case of Pearson v. Northeast Airlines, Inc., 2 Cir., 309 F.2d 553, 92 A.L.R.2d 1162. In Fabricius v. Horgen, 132 N.W.2d 410, the Iowa Supreme Court, in deciding a case where the injury had occurred in Minnesota and all parties concerned lived in Iowa, held that as to the existence of actionable negligence the law of Minnesota governed but as to who may maintain the action and the measure of damages the Iowa law governed. In the case of Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, the Supreme Court of Pennsylvania ruled, in a death case which was the result of an airplane crash in Colorado on a flight from Pennsylvania to Arizona, that the Pennsylvania law of damages was applicable.

It is apparent that the above-noted cases are not in point on the question before us. It must be noted that in not one of them did the court go contrary to or by-pass a statute of its own state that governed the question to be decided.

The trial court ruled correctly in dismissing plaintiff’s petition on the ground that the action was barred by Section 516.190, supra. The judgment of the trial court is hereby affirmed.

PER CURIAM:

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

All of the Judges concur.


author: HOUSER, Commissioner. PER CURIAM:

text:
    MISSOURI PUBLIC SERVICE COMPANY, a Corporation, Plaintiff-Appellant, v. PLATTE-CLAY ELECTRIC COOPERATIVE, INC., a Corporation, Defendant-Respondent. Kansas City, Missouri, a Municipal Corporation, Intervening Plaintiff-Appellant, W. H. Harris, Robert Hanks and Glenn D. Petty, Intervening Defendants-Respondents,
    No. 51750.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.

      Robert L. Hawkins, Jr., Graham & Hawkins, Morris E. Osburn, Jefferson City, Alan F. Wherritt, Liberty, John C. Mills, III, Kansas City, for plaintiff-appellant.
    Walter A. Raymond, Raymond, West & Cochrane, Kansas City, David R. Clevenger, Clevenger & Lay, Platte City, Arthur R. Kincaid, Hale, Coleberd, Kincaid & Waters, Liberty, for respondent Platte-Clay Electric Coop., Inc.
    Herbert C. Hoffman, City Counselor, William Icenogle, Associate City Counselor, for appellant Kansas City.
    James W. Benjamin, Rogers, Field & Gentry, Kansas City, L. M. Bywaters, Liberty, David D. Lodwick, Excelsior Springs, for respondents W. H. Harris, Robert Hanks and Glenn D. Petty.
   HOUSER, Commissioner.

This is a suit for a declaratory judgment and injunctive relief, brought by Missouri Public Service Company, a privately owned public utility rendering electric service in Kansas City and other areas of Missouri, against Platte-Clay Electric Cooperative, Inc., a cooperative rendering electric service in rural areas of Platte, Clay and other counties. On January 1, 1962 the City of Kansas City annexed certain rural areas in Platte and Clay Counties in which the cooperative was serving 63 customers, and the city, which previously had granted plaintiff company a 30-year franchise to supply electrical service in certain areas of the city, passed an ordinance giving the company like permission in the newly annexed areas. In this action plaintiff company questions the right and authority of the cooperative to continue to render service in the annexed areas. Relying upon the procedures provided for in § 394.080, V.A.M.S., plaintiff company prayed in Count I for a judgment declaring that the cooperative is engaged in illegal competition with plaintiff company and has no authority to continue to render service to existing or other and additional customers in those areas, and prayed in Count II for injunctive relief to restrain the cooperative from continuing to render or undertaking and offering to render such service, and for other appropriate relief. The City of Kansas City was allowed to intervene as a plaintiff. Three individuals, members of the cooperative, were permitted to intervene as parties defendant, as representatives of the class composed of 63 members receiving service from the cooperative in the annexed areas. The circuit court found against plaintiff company and for the cooperative and intervening defendants, declaring that the cooperative and its members have vested property and contract rights of which they cannot lawfully be deprived through the procedures instituted under § 394.080, and that the cooperative has authority to continue to render service to its present members and their successors in interest, and that the present members of the cooperative and their successors in interest have the right to continue to receive service from the cooperative in these areas without interference by plaintiff company or Kansas City. The court enjoined plaintiff company and Kansas City from interfering with the cooperative’s maintenance of its facilities and its rendition of service to “its members and their successors in interest in said annexed areas” and from interfering with its members receiving service from the cooperative. Plaintiff company and Kansas City appealed. On the question of our jurisdiction plaintiff company asks that the cooperative be ordered to cease rendering service to its present customers in the annexed areas over its facilities and equipment, which the record shows has a reproduction cost new less depreciation of $84,375 and a going concern value of $3,100; property which it would cost $23,860 to dismantle and sever from the land. Plaintiff company contends that the cooperative, having refused its offer of $126,615 for the property, is entitled to nothing. Accordingly, the value of the physical property appears from the record to be greatly in excess of our jurisdictional amount of $15,000 at the time the appeal was taken, and the loss to the cooperative in the event the relief sought py plaintiff company should be granted, would exceed $15,000. In this situation this Court has jurisdiction of the appeal. State ex rel. Public Water Supply District No. 2 of Jackson County v. Burton, et al., Mo.Sup., 379 S.W.2d 593 [1], and cases cited 379 S.W.2d 1. c. 595.

The cooperative, initially organized on August 29, 1938 under Article 29, Chapter 87, RSMo 1929, voluntarily elected to come under and is presently existing under and subject to The Rural Electric Cooperative Law, Chapter 394, V.A.M.S. In August, 1938 the County Courts of Clay and Platte Counties granted to cooperative’s predecessor a “perpetual franchise” authorizing it to use the roads, highways, streets, etc. and other public ways and places of the two counties for the construction and maintenance of its equipment to facilitate the conduct of its business, “subject, however, to any laws or regulations imposed by statute.” The cooperative paid occupational taxes to Kansas City during the years 1962, 1963 and 1964. It does not hold a franchise from Kansas City, and renders service within the annexed area without the consent of the city. Service is rendered to members only. Membership is governed by the by-laws. The cooperative is not subject to the jurisdiction of the public service commission, except to the limited extent provided by § 394.160. The 63 members residing in the annexed areas are part of a total membership of approximately 4,600. The rates charged by the cooperative are considerably less than that charged by plaintiff company. The members are satisfied with the service rendered by the cooperative. Upon annexation the areas annexed ceased to be rural areas as that term is defined in § 394.020 [1]. Since annexation the cooperative has continued to serve its members in the portions of the annexed areas served by plaintiff company, and intends to continue to serve them, and intends to render service to customers other than those to which it was rendering service at the date of annexation, and will install additional physical facilities to serve these additional customers. Since annexation three members have been added to the list of customers receiving service from the cooperative, but no service has been added to any tract of land which was not receiving service prior to January 1, 1962. The only new facilities added in the annexed areas have been meter poles and metering connections. The cooperative has not “heavied up” its lines in the annexed areas.

Plaintiff company, operating under a certificate of public convenience and necessity issued by the public service commission and a 30-year nonexclusive franchise granted by Kansas City, is and for years past has been operating in the annexed areas. At time of trial it was rendering electric service to 698 customers therein. Plaintiff company is willing and able to render electric service to all of the cooperative’s customers in the annexed areas, pursuant to the rules and regulations of the public service commission.

Twice plaintiff company requested the cooperative to negotiate for the sale of the physical property of the cooperative located within the annexed areas but the cooperative declined to negotiate and has stated that said property is not for sale at any price. On February 5, 1962, following the annexation on January 1, 1962, plaintiff company filed an application with the public service commission under § 394.-080 [4] seeking a finding as to the fair and reasonable value of the cooperative’s physical property. Following a hearing the commission made an order, effective July 1, 1962, fixing that value at $126,615. Severance damages to be sustained upon removal of the facilities in the sum of $23,-860 were included in that figure. No appeal was taken from that order. On August 6, 1962 plaintiff company offered the cooperative $126,615 for its property, but the offer was declined and the cooperative continues to decline to accept this amount and sell and convey its property to plaintiff company.

Instead of stating in extenso the many points and contentions made by the several parties we will undertake in the following analysis to decide the questions determinative of this appeal.

In August 1938 the territory in question was a rural area lying entirely outside the corporate limits of any municipality. The county courts of Clay and Platte Counties had sole jurisdiction and authority to grant franchises to cooperative’s predecessor to build and operate an electrical distribution system on and along the roads, highways and public ways of that territory. That authority was derived from § 2078, RSMo 1929, which invested in the county court the control and management of the real property belonging to the county, and § 7924, RSMo 1929, requiring that the assent of the county court be obtained before poles for electric light wires could be erected on the public roads and highways of any county. Under the law then existing (unchanged to this date) a county court had power to grant a perpetual franchise for the purposes mentioned. County courts are not circumscribed by general laws of the state limiting the duration of such franchises to a certain number of years. In the absence of any general law limiting the duration of franchises for the operation of an electrical system on the roads and highways of a county, the grant of a franchise for that purpose, without specifying a period of duration, is a grant in .perpetuity. State on inf. McKittrick ex rel. City of Trenton v. Missouri Public Service Corp., 351 Mo. 961, 174 S.W.2d 871, 879; State ex inf. Chaney v. West Missouri Power Co., 313 Mo. 283, 281 S.W. 709, 713, 714; State ex inf. McKittrick ex rel. City of Springfield v. Springfield City Water Co., 345 Mo. 6, 131 S.W.2d 525, 531; 43 Am.Jur. Public Utilities and Services § 17. These franchises, valid when issued, have never been withdrawn, revoked, abandoned or forfeited. They were not abandoned when in 1946 the cooperative’s predecessor corporation elected to come under and be bound by the provisions of Chapter 394. The conversion of the predecessor to a cooperative was in substance a continuation of the predecessor corporation, Consolidated Electric Coop. v. Panhandle Eastern Pipeline Co., 8 Cir., 189 F. 2d 777, and in the conversion the assets and business, including the franchises, were taken over by the cooperative, which succeeded to the predecessor’s rights and powers thereunder. By the express provision of § 394.070 the conversion had the same effect as if the cooperative had been organized under Chapter 394.

When the annexation became effective the county courts lost and the city acquired jurisdiction to grant franchises in the annexed areas. The annexation, however, did not terminate the power of the cooperative to continue to furnish service to its members within the annexed areas by and through its lines and facilities previously installed pursuant to the rights granted by the county franchises. The power of the cooperative to continue to furnish service to its members at the date of annexation is expressly provided for by § 394.080 [4]. This reservation of power, however, is limited and terminable upon the occurrence of an event. This brings us to the crux of the controversy.

Section 394.080 [4] grants cooperatives power :

“To generate, manufacture, purchase, acquire, accumulate and transmit electric energy, and to distribute, sell, supply, and dispose of electric energy in rural areas to its members, to governmental agencies and political subdivisions, and to other persons not in excess of ten per cent of the number of its members; provided however, that where a co-operative has been transmitting, distributing, selling, supplying or disposing of electric energy in a rural area which, by reason of increase in its population, its inclusion in a city, town or village, or by reason of any other circumstance ceases to be a rural area, such co-operative shall have the power to continue to transmit, distribute, sell, supply or dispose of electric energy therein until such time as the municipality, or the holder of a franchise to furnish electric energy in such municipality, may purchase the physical property of such cooperative located within the boundaries of the municipality, pursuant to law, or until such time as the municipality may grant a franchise in the manner provided by law to 3. privately owned public utility to distribute electric power within the municipality and such privately owned public utility shall •purchase the physical property of such cooperative located within the boundaries of the municipality. In case any of the parties •to such purchase, as herein provided, cannot agree upon the fair and reasonable price to be paid for the physical property of such co-operative within the municipality, or if either party refuses to negotiate for the sale of such property upon the request of the other, the fair and reasonable value of such property for such purchase shall be fixed by the public service commission upon application of any one or more of the interested parties.”

The apparent object of the proviso and last sentence of this subsection is to reconcile an incongruity and protect the public interest during a transition period. The incongruity is that of a co-operative organized “for the purpose of supplying electric energy and promoting and extending the use thereof in rural areas,” § 394.030, supplying electricity within the corporate limits of a populated city served by a municipal utility or a franchised privately owned public utility. Operation in rural areas is the principal concern of The Rural Electric Cooperative Law. The continued operation by a cooperative in areas formerly rural but lately incorporated into municipalities, provided for in § 394.080 [4], is incidental to the avowed object and purpose of its organization. The public interest is the prevention of interruption of electric service during the transition period between the time when a rural area served by a cooperative, through increase of population and annexation, becomes an urban area and the time the municipality or a franchised utility operating in the municipality may purchase the physical property of the cooperative located within the boundaries of the municipality. Purchase is the event which terminates the power of a cooperative to continue to render service in the annexed areas. The subsection contemplates a voluntary, not a forced, sale of the physical property if the parties are able to reach an agreement. The language is permissive, not mandatory. It contemplates negotiation, bargaining, mutual assent. An unwilling municipality or franchised utility is not bound to purchase and a reluctant cooperative is not bound to sell. The parties are not even bound to negotiate but may stand adamant and incommunicado. The proviso and language following, however, is designed to encourage and facilitate agreement. The device by which the public service commission may on application of either party fix a fair and reasonable price upon failure to agree or refusal to negotiate is intended as a means of encouraging a disagreeable party to agree or an unwilling party to come to the bargaining table. The adamant party may nevertheless continue to disagree, refuse to negotiate, and ignore the order of the public service commission, without any penalty of any kind. There is no provision for the enforcement of a sale at the figure fixed by the commission; no sanction for nonconformance or noncompliance.

Conceding that a sale is not mandatory plaintiff company nevertheless takes the position that the subsection should be construed to mean that the cooperative’s operating rights in the annexed areas terminate, once the fair and reasonable price determined by the commission is made available to the cooperative by the offer of the franchise holder to pay that sum. It argues that the cooperative has power to continue to render service only until such time as the franchise holder may offer to purchase its physical property — until it is “afforded a fair opportunity for a sale at a price to be determined by the Public Service Commission * * (Our emphasis.) This position ignores and runs counter to the express wording of the proviso, which confers the power “until such time as the * * * holder of a franchise * * * may purchase the physical property * * * or until such time as * * * such privately owned public utility shall purchase the physical property * * (Again our emphasis.) The proviso is not reasonably susceptible to the interpretation^ placed upon it by plaintiff company. There is no language in the subsection which expressly or by necessary implication provides for the termination of the power of the cooperative to continue to render service within the annexed areas if the cooperative refuses to accept the sum fixed by the commission when offered by the franchise holder. “Provisions not found plainly written or necessarily implied from what is written ‘will not be imparted or interpolated therein in order that the existence of [a] right may be made to appear when otherwise, upon the face of [the statutes], it would not appear.’ Allen v. St. Louis-San Francisco Ry. Co., 338 Mo. 395, 402, 90 S.W.2d 1050, 1053, 105 A.L.R. 1222, cited with approval in State ex rel. Mills v: Allen, 344 Mo. 743, 128 S.W.2d 1040, 1043.” St. Louis County Library District v. Hopkins, Mo.Sup., 375 S.W.2d 71, 75. “It cannot be said to be done by operation of law, when there is no such law.” State ex rel. Lowe v. Henderson, 145 Mo. 329, 46 S.W. 1076, 1079, quoting from an Iowa case, State v. Independent School Dist.No. 6, 46 Iowa 425. We are enjoined by § 1.090 to take words and phrases in their plain or ordinary and usual sense. In Marty v. State Tax Commission of Missouri, Mo.Sup., 336 S.W.2d 696, we approved the rule that the legislative intent should be ascertained from the words used, if possible, and that the plain and rational meaning of language should be ascribed to it. If the legislature intended to provide that the cooperative’s rights should terminate upon refusal of a mere offer but did not say so we could not so hold because the legislature did not so provide. “We are guided by what the legislature says, and not by what we may think it meant to say.” United Air Lines, Inc. v. State Tax Commission, Mo.Sup., 377 S.W. 2d 444, 448.

The absence of an express provision that the refusal of the offer terminates the power is significant for the reason that when it has intended to do so the General Assembly has made full and complete provisions for the result in cases of overlapping functions resulting from municipal annexations. St. Louis County Library District v. Hopkins, supra, 375 S.W.2d 1. c. 75, 76. For instance, in Chapter 247 dealing with public water supply districts, § 247.160 provides for the voluntary sale to a municipality of a district’s waterworks system upon annexation of all or part of a public water supply district. The following section, § 247.170, provides a method by which the municipality may acquire the assets of a district lying within an area annexed by a city, without the consent or agreement of the district. Mathison v. Public Water Supply District No. 2 of Jackson County, Mo.Sup., 401 S. W.2d 424, 431 [6]. In other words, when the General Assembly has intended to provide an alternative, compulsory method of acquisition, it has done so in terms, and not by implication. Here the failure of the lawmakers to expressly provide a method by which the franchised utility might acquire the property without the consent of the cooperative, or for the consequence in case the cooperative rejects the utility’s offer to purchase, supports the conclusion that the General Assembly, by the amendment of § 5388, RSMo 1939, [Laws 1949, p. 238], intended to provide a termination date based upon a voluntary sale of the cooperative’s physical property to which it agreed and consented, and did not intend in that section to provide any method by which the acquisition could be made without the consent or agreement of the cooperative, or to provide for the termination of the latter’s rights upon its refusal of the utility’s offer. (We express no opinion on the question whether a sale can be forced by the municipality or franchised utility by the exercise of the power of eminent domain.)

According to plaintiff company the cooperative, having spurned the offer, would lose its franchise rights and be left wholly uncompensated, without any right to a jury trial on the amount of its damages. This construction would destroy the voluntary character of the subsection and introduce the element of compulsion. If the cooperative’s power ceased when it refused the offer the cooperative would be virtually forced to accept the offer, for otherwise it would find itself with poles, lines, transformers, drops and meters which it had no right to use. Without a franchise right to operate these facilities they would be useless as a distribution system and of value only as salvage materials, after paying the cost of dismantling and removal. That free and untrammeled exercise of discretion which inheres in a voluntary sale would be eliminated and the order of the commission fixing the amount, followed by an offer to pay, would as a practical matter be mandatory. To refuse the offer would result in substantial damage to the cooperative, thereby raising numerous constitutional questions which have been thoroughly briefed by the parties but which, under our construction of § 394.080 [4], we do not reach.

Under the issues here presented we conclude that the cooperative’s refusal of an offer of the amount fixed by the commission did not automatically terminate the power specifically granted to it in the first portion of the proviso. That power continues until the specified event occurs: until a voluntary agreement for the sale and purchase of the physical property for an agreed consideration is entered into between the parties. A voluntary sale and purchase has not occurred. The time prescribed by the proviso for the termination of the cooperative’s power has not yet arrived. Accordingly, the general finding for the cooperative and its members and against plaintiff, determining that the cooperative is rendering service in the annexed areas lawfully and is not engaging in illegal competition with plaintiff is affirmed.

The first paragraph of the decree should be modified, however, to read substantially as follows: “That defendant Platte-Clay Electric Cooperative, Inc., a corporation, has the power and right to continue to transmit, distribute, sell, supply and dispose of electric energy in the areas annexed by Kansas City on January 1, 1962, and that its refusal to accept the offer of Missouri Public Service Company, Inc. of the sum fixed by the Public Service Commission as the reasonable and fair value of its physical property in the annexed areas did not terminate its franchises and operating rights therein; that under § 394.080 [4] its franchises and operating rights continue until the cooperative voluntarily decides to sell and Kansas City or a utility which it has authorized to serve the annexed areas decides to purchase the physical property of the cooperative upon terms agreeable to both parties.”

The second and third paragraphs adjudge that the cooperative has the right and authority to remain in possession, ownership and operation of its electric facilities in the annexed areas and that the present members and their successors in interest have the right and authority to continue to receive electric service from the cooperative without interference from plaintiff and in-tervener Kansas City, and the fourth paragraph enjoins plaintiff and Kansas City from interfering with the cooperative and its members in furnishing and receiving service. These paragraphs should be modified, for the following reasons:

When the territory in question was annexed the cooperative to that extent came under the jurisdiction of Kansas City in respect to the use of the streets and public ways of that municipality by virtue of § 394.080 [10], which grants to a cooperative the power “To construct, maintain, and operate electric transmission and distribution lines along, upon, under and across all public thoroughfares, including without limitation, all roads, highways, streets, alleys, bridges and causeways, and upon, under and across all publicly owned lands, subject, however, to the requirements in respect of the use of such thoroughfares and lands that are imposed by the respective authorities having jurisdiction thereof upon corporations constructing or operating electric transmission and distribution lines or systems.” (Our emphasis.) Kansas City is a constitutional charter city. Section 82.190 gives constitutional charter cities exclusive control over its public highways, streets, avenues, alleys, etc. and the power to vacate and abandon any such ways. Section 409 of its charter gives the city council the right to require the reconstruction, relocation, change or discontinuance of appliances used by utilities in the streets and public ways whenever in the public interest. Section 1(16) of its charter gives Kansas City the exclusive control of the streets and public ways and the power to regulate the use thereof. To enjoin the city from interfering with the cooperative’s present use of its facilities would improperly prohibit the city from exercising its statutory and charter powers in respect to the use of its streets and public ways. The references to Kansas City in paragraphs two and three should be deleted and the injunction against Kansas City in the fourth paragraph set aside.

Likewise the perpetual injunction against plaintiff company should be set aside because there is no evidence that plaintiff company has interfered or threatened to interfere with the cooperative’s possession, maintenance and operation of its facilities.

A subordinate question is whether under its authority to continue to supply electricity in the annexed areas the cooperative can serve others than those who were its members on the date of annexation. The cooperative concedes that it cannot extend service to new members on premises other than those of its then-existing members but contends that it can serve their “successors in interest”; that if a tract of land which had only one service connection on January 1, 1962 is subdivided after annexation it can accept membership from and serve the owner of every house or business building which may be erected on the several lots of such subdivision. The right of the cooperative in this respect depends upon a proper construction of § 394.080 [4], The primary purpose of Chapter 394 is to bring electric service to members of the cooperative living in rural areas not otherwise served. Section 394.080 [4] allows an exception due to changed conditions, but this exception is not to be extended by implication because it runs counter to the spirit and purpose of the chapter as a whole, which does not contemplate the expansion of the cooperative’s facilities or the addition of new members or new customers in the annexed areas. Accordingly, the cooperative cannot extend service to the owners of homes and businesses built after annexation on lots purchased from preannexation members who have subdivided their original land holdings. The franchised utility is entitled to supply this kind of new demand for electric energy in the annexed areas and in view of the cooperative’s announced intentions is entitled to be protected against this type of competition by injunctive relief.

The cooperative’s right to continue service in a municipality served by a franchised utility, after annexation of territory in which it has been lawfully operating, is therefore limited to (1) members receiving service at the time of annexation ; (2) persons accepted as members who become subsequent occupants of houses and places of business actually connected to the cooperative’s lines on the date of annexation, where the previous occupants have resigned, moved, or their memberships have been terminated or discontinued for any other' reason, and (3) persons to whom memberships predating annexation may be transferred in compliance with provisions of the by-laws. (Section 394.120 (1) provides that membership is not transferable except as provided in the by-laws. The by-laws at the time of annexation made no provision for transfer of membership, but conceivably they may be amended.) Eligibility for membership is to be determined as of the date of application therefor. In redrafting the judgment to conform to these directions the term “their successors in interest” should not be used, because it is too vague and uncertain in meaning.

The judgment is affirmed in part and reversed in part, and the cause is remanded for the entry of a new and modified judgment conforming to the views expressed in this opinion.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . All section references are to RSMo 1959, V.A.M.S., unless otherwise noted.

      . Even in the absence of a statute reserving the power most courts passing on the question have held that a cooperative has the right to continue to furnish electricity to its members after they have become residents of a municipality as a result of its annexation of the territory in which they were being served by the cooperative. State ex rel. Southwestern Gas & Electric Co. v. Upshur Rural Elec-trie Cooperative Corp., 156 Tex. 633, 298 S.W.2d 805 [3]; Pee Dee Electric Membership Corp. v. Carolina Power & Light Co., 253 N.C. 610, 117 S.E.2d 764; Caddo Electric Coop. v. State ex rel. Whelan, Okl.Sup., 391 P.2d 234 [1]; Montana Power Co. v. Vigilante Elec. Coop., Inc., 143 Mont. 119, 387 P.2d 718; Town of Oans v. Cookson Hills Elec. Coop., Okl. Sup., 288 P.2d 707; Duke Power Co. v. Blue Ridge Electric Membership Corp., 253 N.C. 596, 117 S.E.2d 812.

      . “ ‘Rural area’ shall be deemed to mean any area of the United States not included within the boundaries of any city, town or village having a population in excess of fifteen hundred inhabitants, * * § 394.020 [1].

      . See Caddo Electric Coop. v. State ex rel. Whelan, Okl.Sup., 391 P.2d 234, 238 [2]; State ex rel. Southwestern Gas & Electric Co. v. Upshur Rural Electric Cooperative Corp., 156 Tex. 633, 298 S.W. 2d 805; Pee Dee Electric Membership Corp. v. Carolina Power & Light Co., 253 N.C. 610, 117 S.E.2d 764.


author: STOCKARD, Commissioner. PER CURIAM:

text:
    Anna Marie LAMPKIN, Appellant, v. HARZFELD’S, a corporation, Respondent.
    No. 51835.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      Wm. Harrison Norton, Williams, Norton & Pollard, North Kansas City, for appellant.
    E. E. Thompson, Thos. J. Conway, Jr., Edgar S. Carroll, Kansas City, for respondent, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   STOCKARD, Commissioner.

In this action for damages in the amount of $50,000 for personal injuries the trial court entered summary judgment for the defendant and plaintiff has appealed. The issue is whether plaintiff sustained injuries resulting from an accident arising out of and in the course of her employment with defendant within the meaning of the Workmen’s Compensation Law. Chapter 287 (all statutory references are to RSMo 1959, V.A.M.S.). If so, plaintiff is relegated tO' the remedy of that law, and may not maintain this action against her employer. §: 287.120(2); Marie v. Standard Steel Works, Mo., 319 S.W.2d 871, 875; Sheets v. Hill Brothers Distributors, Inc., Mo., 379 S.W. 2d 514, 516.

Plaintiff alleged in her petition that she' was employed by defendant as a sales lady, that she “was advised that it would be necessary for her to take a series of flu shots” to be administered by a doctor who was an agent and employee of defendant, that on September 24, 1963, she was “instructed” to appear before the doctor on the premises of defendant and was there “administered the flu shot.” She then alleges that she had advised the doctor that she “suffered from allergies,” that the defendant was negligent in administering the flu shot under the circumstances, and that she suffered a reaction resulting in substantial personal injuries.

After the pleadings were at issue the defendant moved for summary judgment, and submitted as exhibits to the motion (1) a copy of plaintiffs petition: (2) two certificates from the Division of Workmen’s Compensation showing that defendant was classified as a major employer and had accepted the occupational disease amendment to the Workmen’s Compensation Law, and that the files of that office did not show a rejection of the law by plaintiff; (3) an affidavit by an officer of defendant that it was operating under and subject to the provisions of the Missouri Compensation Law, and that the liability of defendant under that law was fully insured by an insurance company authorized to do such business in Missouri; and (4) portions of a deposition of plaintiff in which she testified that she was “encouraged,” “advised” and “instructed” to take the flu shot by the “personnel department” of defendant, that she was told she should take the flu shot “to prevent getting sick” and so she would have less time off from work, and that she paid $1.50 for the flu shot and thought defendant paid a percentage of the cost.

Summary judgment is authorized by Civil Rule 74.04(c), V.A.M.R., where the “pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” It is further provided in Civil Rule 74.-04(h) that “In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” In this case no counter affidavits to the motion for summary judgment were filed by plaintiff. For purposes of this appeal we accept as correct the statements of fact in defendant’s exhibits to the motion for summary judgment. Spradlin’s Market, Inc. v. Springfield Newspapers, Mo., 398 S.W.2d 859, 862, Grubb v. Leroy L. Wade & Son, Inc., Mo., 384 S.W.2d 528.

The exhibits to the motion for summary judgment establish that plaintiff was an employee of defendant at the time of her alleged injuries, and that plaintiff and her employer were subject to the Missouri Workmen’s Compensation Law. The issues, therefore, are reduced to these: (1) Did plaintiff’s injuries result from an accident as that term is defined in § 287.020 and used in § 287.120, and if so, (2) did the accident arise out of and in the course of her employment. Where, as in this case, there is no dispute as to the facts, these are questions of law. McFarland v. St. Louis Car Co., Mo.App., 262 S.W.2d 344, 346; Liebman v. Colonial Baking Company, Mo.App., 391 S.W.2d 948, 950.

The term “accident” is defined in § 287.020 to mean “an unexpected or unforeseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury.” Plaintiff makes no contention in her brief that her injuries did not result from an accident. The inoculation for influenza was, of course, not an accident. But, the event of the reaction was unforeseen and unexpected, and it was a sudden and violent occurrence which produced objective symptoms of an injury. The occurrence falls precisely within the statutory definition of the word “accident.” Other courts have uniformly held that reactions and infections resulting from vaccinations and inoculations constitute an accident within the meaning of the Workmen’s Compensation laws. See Lee v. Wentworth Manufacturing Company, 240 S.C. 165, 125 S.E.2d 7; Spicer Mfg. Co. V. Tucker, 127 Ohio St. 421, 188 N.E. 870; Neudeck v. Ford Motor Co., 249 Mich. 690, 229 N.W. 438; Freedman v. Spicer Mfg. Corp., 97 N.J.L. 325, 116 A. 427; Sanders v. Children’s Aid Society, 238 App.Div. 746, 265 N.Y.S. 698, Affm’d. 262 N.Y. 655, 188 N.E. 107; Texas Employers’ Ins. Ass’n v. Mitchell, Tex.Civ.App., 27 S.W.2d 600; Alewine v. Tobin Quarries, 206 S.C. 103, 33 S.E.2d 81; Smith v. Brown Paper Mill Co., La.App., 152 So. 700; Suniland Toys and Juvenile Furniture, Inc. v. Karns, Fla., 148 So.2d 523.

We turn now to the issue of whether plaintiff’s injuries arose out of and in the course of her employment. Plaintiff outlines in her brief what she contends are the “indisputable facts” as follows: 1. She “was an employee of defendant.” 2. She “was injured during working hours.” 3. She was a “saleslady in a well know ladies’ ready to wear establishment.” 4. She was “injured by a doctor when he administered a flu shot, [whom] we can assume to have been an agent of the defendant.” 5. “Plaintiff, in her employment as a saleslady, has no connection with being treated by a doctor.” 6. “Plaintiff paid $1.50 to the defendant for the shot she received from the doctor.” Plaintiff then argues that “the last two facts” above set forth are “the determinative facts of this case,” and that when considered in the light of the Missouri decisions, they establish that plaintiff’s injury did not result from an accident arising out of and in the course of her employment. The basis for this contention seems to be that the accident ‘“did not occur when she was reasonably fulfilling the duties of her employment,” and since she paid $1.50 for the inoculation she “was a customer then, and not an employee.”

An injury arises “out of” the employment when there is a causal connection between the conditions under which the work is to be performed and the resulting injury, and it arises “in the course of” the employment when it occurs within the period of the employment at a place where the employee may reasonably be and while he is reasonably fulfilling the duties of his employment or engaged in doing something incidental thereto. Foster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421; Goetz v. J. D. Carson Co., 357 Mo. 125, 206 S.W.2d 530; Liverman v. Wagner, Mo.App., 384 S.W.2d 107, 109. These general rules of consideration and approach must be applied to the particular facts of each case. In this case plaintiff was administered the influenza inoculation by an agent of her employer on her employer’s premises during regular and normal working hours. Assuming that receiving the inoculation was not a condition of employment (however, plaintiff testified that she “took it the previous year, and I couldn’t afford to get discharged for not taking the “flu shot”), the record conclusively establishes that her employer encouraged, advised and instructed her to take the inoculation, and that the purpose of the inoculation was to prevent plaintiff from getting influenza and losing time from work. We need not further elaborate to demonstrate that the inoculation was for the mutual benefit of plaintiff and her employer in' their employment relationship. This demonstrates that plaintiff’s injury arose “out of” her employment because the conditions of her employment as a saleslady created the need for the inoculation which was the cause of the injury she received. It also demonstrates that plaintiff’s injury arose “in the course of” her employment because it occurred within the period of her employment at a place where she was directed to be, and while she was engaged in doing something (receiving the inoculation from an agent of her employer) incidental to her employment, that is, taking steps for the mutual benefit of herself and her employer to prevent absences from work because of influenza. It is the rule that “An injury suffered by an employee while performing an act for the mutual benefit of the employer and the employee is usually compen-sable.” 99 C.J.S. Workmen’s Compensation § 221, p. 730. This has long been the accepted rule in Missouri. Wamhoff v. Wagner Electric Corporation, 354 Mo. 711, 190 S.W.2d 915, 161 A.L.R. 1454; Spradling v. International Shoe Co., 364 Mo. 938, 270 S.W.2d 28; Thompson v. Otis Elevator Co., Mo.App., 324 S.W.2d 755; Liverman v. Wagner, supra. We have neither found nor been cited to a Missouri case involving either an infection or an unexpected reaction from a vaccination or an inoculation, but the issue has arisen in other states. See the annotation at 69 A.L.R. 963, and the cases there cited, including Freedman v. Spicer Mfg. Corp., 97 N.J.L. 325, 116 A. 427; Neudeck v. Ford Motor Co., 249 Mich. 690, 229 N.W. 438; and Texas Employers’ Ins. Ass’n v. Mitchell, Tex.Civ.App., 27 S.W.2d 600. See also Lee v. Wentworth Manufacturing Co., supra; Spicer Mfg. Co. v. Tucker, supra; Sanders v. Children’s Aid Society, supra; Alewine v. Tobin Quarries, supra; Smith v. Brown Paper Mill Co., supra; Suniland Toys and Juvenile Furniture, Inc. v. Karns, supra. See also Larson’s Workmen’s Compensation Law § 27.32 and Schneider on Workmen’s Compensation, Vol. 7, § 1674, p. 358, and 99 C.J.S. Workmen’s Compensation, § 256, p. 885. All of these authorities are to the effect that when the inoculation is occasioned by the particular conditions of employment, or where the employer requires the inoculation, or where there is a combination of strong urging by the employer and mutual benefit, then an injury resulting from inoculation arises out of and in the course of employment.

We cannot agree with the argument of plaintiff that her employment by defendant as a saleslady had no connection in the circumstances of this case with her “being treated by a doctor.” In addition, we consider it immaterial that plaintiff paid part of the cost of the inoculation. We consider this comparable to the situation where an employee sustained an injury arising out of and in the course of his employment while using a tool which he had purchased.

The facts of this case, which we accept as true and which we construe most favorably to plaintiff, establish as a matter of law that plaintiff sustained an injury by reason of an accident which arose out of and in the course of her employment. For that reason the trial court correctly entered summary judgment for defendant.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


author: BARRETT, Commissioner. PER CURIAM:

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Appellant, v. Lloyd GANN et al., Exceptions of Harley E. Hyatt et al., Respondents.
    No. 52037.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      Robert L. Hyder, Chief Counsel, Earl H. Schrader, Jr., Assistant Counsel, Legal Division, Missouri State Highway Department, Kansas City, by Darold W. Jenkins, Kansas City, for appellant.
    Gayles R. Pine, Pine, Welling, Jones & Mitchell, Warrensburg, for defendants-respondents.
   BARRETT, Commissioner.

In this proceeding in condemnation a jury awarded the respondent landowners, the Hyatts, $48,000 damages and the state has appealed. The proceeding has to do with the relocation and construction of 11.658 miles of U. S. Highway 50 through Johnson County just west of Warrensburg and particularly with the “second stage construction of two high-type pavements, each 24 feet wide, separated by a median” with limited access.

For the most part the necessary background facts are excerpted from the state’s brief. The Hyatts owned a 240-acre farm, “L” shaped, “with one-half mile frontage on Highway 50” then a “land service road.” State ex rel. State Highway Commission v. Vorhof-Duenke Company, Mo., 366 S.W.2d 329, 335. The land was gently rolling, had been terraced and was about sixty percent tillable although prior to the date of the taking on August 13, 1965, it had been used mainly as a livestock farm. The state appropriated but 8.87 acres off the north side of the farm for an additional traffic lane, .21 acres for a drainage easement, .28 acres as a temporary work-and-turn easement “and all rights of direct access to U. S. Route 50, except a twenty-foot entrance at the northeast corner of the remainder(Emphasis supplied.) While only 8.87 acres were taken from a 240-acre tract the 8.87 acres fronted directly on Highway 50 and virtually all of the farm’s improvements were located on the 8.87 acres and they too were taken by this proceeding. The improvements consisted of a seven-room two-story house, one and a half baths, with full basement. There was a two-bedroom tenant house with bath. There was a barn which one witness described as “exceptional,” large and ample for feed and livestock. There was a machine shed, a “good granary,” a small, garage, a chicken house all “in above-average condition.” Also taken by condemnation were a number of shade trees, and shrubs, about 65 in number, two wells, one pond, a silo, 2200 feet of fence and a waterway. The state does not contend that the verdict is excessive and so the farm and its improvements are not further described in detail.

The state’s first assignment is that the court erred in overruling its motion to strike from the jury list the name of John Van Meter. The problem was properly and timely, raised and as to this matter these are the circumstances: In the statutes relating to juries in general, Chapter 494 RSMo 1959, § 494.190 provides that “No * * * person * * * who is of kin to either party to any such cause within the fourth degree of consanguinity or affinity, shall be sworn as a juror in the same cause(Emphasis supplied.) Highway 50 and this proceeding has to do with the relocation and construction of a highway beginning at the Missouri-Kansas line at 52nd Street in Kansas City and ending on the Jefferson Barracks Bridge south of St. Louis. As stated, this proceeding is immediately concerned with 11.658 miles of Highway 50 in Johnson County. Juror Van Meter is not related in any manner to the respondent Hyatts whose 240-acre farm and its damages comprise the subject matter of this appeal. Mr. Van Meter is related to another landowner whose property in Johnson County was also subject to the general condemnation proceeding. That landowner is Charles W. Closter and Mr. Van Meter described the relationship in this language, he (Charles W. Closter) is “My grandfather’s brother.” The juror said he knew that “they took the land” and he did not know whether it was settled or not, “I don’t know anything about it.” He said that the relationship would not affect his ability to fairly try the Hyatt case.

Unless unknown to the juror until after verdict the relationship disqualifies the juror (State v. Miller, 331 Mo. 675, 682-683, 56 S.W.2d 92, 96) and it may well be that juror Van Meter should have been excused. State ex rel. State Highway Commission v. Smith, Mo., 393 S.W.2d 544, 546. But this does not solve the problem here and the only case relied on by the state is not helpful because there “(t)he juror challenged stated that he was a second cousin to the wife of one of the defendants.”The suit was for damages for trespass, to plaintiff’s land, “cutting and removing therefrom a lot of timber and converting the timber to respondents’ (defendants) use.” Pemiscot Land & Cooperage Co. v. Davis, 147 Mo.App. 194, 126 S.W. 218. It does not appear that Mr. Van Meter served on this jury and it is assumed that his name was stricken when the state exercised its peremptory challenges. The latter fact is not determinative, however, and “Exceptions to the award of the commissioners in a condemnation case are triable de novo to a jury in accordance with the procedure applicable to ordinary civil actions.” State ex rel. State Highway Commission v. Vorhof-Duenke Company, Mo.,. 366 S.W.2d l. c. 366. It may be noted in passing that the disqualification does not' apply and a juror is not incompetent merely because “the principles decided in one case-may, in some collateral way, be beneficial to a party in another case, or that evidence similar to that in the first case might be-introduced in the later case.” 50 C.J.S. Juries § 218b(l), p. 955. The thing that sets this particular appeal and the proceeding with which it is concerned apart is that “(t)he filing of the separate exceptions involving the issue of damages for the taking of the respective tracts: presented separate and distinct issues for trial under the procedure governing ordinary civil cases. * * * Back of the-exceptions filed by the respective landowners as to the awards for their separate-tracts were independent of the exceptions as to the other tracts, as each claim stood upon its own footing.” State ex rel. Highway Commission v. Curtis, Mo., 283 S.W. 2d 458, 465. Thus the Hyatts’ exceptions: and damages were “independent of the exceptions” of Mr. Van Meter’s relatives, the Closters, and for these reasons the court did not prejudicially err in refusing to-sustain the state’s challenge for cause.

The appellant’s other assignment is that the “court erred in the exercise of his discretion” (emphasis supplied) in admitting into evidence and refusing to strike testimony “relating to alleged comparable sales consisting of five and ten-acre bare land building lots admittedly sold as building sites.” The state contends that “the technique used by respondents was, in fact, a thinly disguised effort to elevate the before-taking value of this farm, by showing a higher and better use of the entire farm other than that use to which it had been put prior to the date of the taking, and to which it had always been put.” To more precisely illustrate “(t)he precise point that appellant here wants to spotlight is that the testimony adduced by the respondents relating to suburban residential ■development potentiality applied to the ■whole 240-acre farm, and was used to elevate or substantiate the before-taking ■value of the whole farm, not just the part •appropriated.” (Emphasis here by counsel.)

The appellant admits that it “has not been able to find a Missouri case where the facts are on all fours with the facts (or opinions) in this case” and so it relies •on what is said to be an analogy in the zoning cases. The state does cite volumes 4 and S Nichols, Eminent Domain, particularly § 12.314, p. 140. The first two sentences of that paragraph say that “In determining the market value of a piece of real property for the purposes of a taking by eminent domain, it is not merely the value of the property for the use to which it has been applied by the owner that should be taken into consideration. The possibility of its use for all purposes, present and prospective, for which it is adapted and to which it might in reason be applied, must be considered.” Further § 12.3142(1) of this text together with an appropriate caveat (and see 5 Nichols, § 18.11(2), p. 160) sets forth an illustration which indeed is “on all fours” with the claim here: “The most characteristic illustration of the rule that market value is not limited to value for the existing use and the situation in which it is most frequently invoked, and also most frequently abused, is found in those cases where evidence is offered of what the value of a tract of land that is used for agricultural purposes or is vacant and unused would be if cut up into house-lots. It is well settled that if land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush and boulders.”

But it is not necessary to turn this appeal on this narrow ground alone, neither is it desirable to attempt to lay down a rule that would govern all cases in all and any events. As noted from the excerpt from its brief the state concedes that the court has a “discretion” and the problem here as Nichols suggests is whether in the circumstances of this record there has been a manifest abuse in admitting the testimony. In the first place the Hyatts’ 240-acre farm fronted directly on U. S. Highway SO for over 2200 feet. It is 28 miles from Sedalia, 40 miles from Kansas City and but 3½ to 4J4 miles from Warrensburg. And admittedly, including 10 acres directly across the road from the Hyatt land, some properties have been sold for both commercial and suburban home use. The respondents’ witnesses testified to a before-taking value of the 240 acres of $96,000, the only qualified witness offered by the state testified to a value of $82,500 and thus as to a before-taking value the witnesses were in disagreement in opinion but $13,500. The real dispute was as to damages which the respondents’ experts placed at $53,650 and the state’s single witness at $27,500. And as stated, there is no claim here that the jury verdict of $48,000 is excessive.

In this situation the appeal is unlike those cases in which the court has granted one of the parties a new trial (Union Electric Company of Missouri v. McNulty, Mo., 344 S.W.2d 37) or in which the landowner’s proof of “present value of the land included the cost of developing it” (In re Armory Site in Kansas City, Mo., 282 S.W.2d 464, 473) or there was a theory of “loss of profits” which was so remote as to be speculative and perhaps misleading. State ex rel. Kansas City Power & Light Co. v. Salmark Home Builders, Inc., Mo., 375 S.W.2d 92. There have been cases in which it was said, as long ago as 1934, that “we do not think it may be said as a matter of law, in view of the fact that the farm is located on both state highway 67 and U. S. highway 61, just out of Frederick-town, the county seat of Madison County, that the availability of portions of the farm for acreage building sites is speculative, or not in reasonable anticipation.” State ex rel. State Highway Commission v. Graham, Mo.App., 74 S.W.2d 493; Union Electric Company of Missouri v. Simpson, Mo.App., 371 S.W.2d 673, 678. The general rules together with the restrictions and limitations on the sales of land of like character are set forth in City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839, 850-851, and it is not necessary to elaborate on the subject here, the differences in acreage, accessibility, possible use were not so disparate as to make them incomparable as a matter of law and it is sufficient here to say that there is no demonstrable, manifest abuse of discretion in the court’s admitting testimony as to what the appellant •designates as “potential suburban residential development property.” State ex rel. State Highway Commission v. Galeener, Mo., 402 S.W.2d 336; Empire District Electric Co. v. Johnston, 241 Mo.App. 759, 268 S.W.2d 78, 81-82.

For the indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: PRITCHARD, Commissioner. PER CURIAM.

text:
    Gilbert DeLANEY, Howard B. Partney, Mrs. Beulah Feance (Nee Partney), Mrs. Lorraine Kerner (Nee Partney), Mrs. Marjorie Petry (Nee Brinner), William A. Brinner, Mrs. Evelyn Bagby (Nee Partney), Mrs. Lucille Hickey (Nee Partney), Wesley A. DeLaney, Bernice Steckman, George F. Partney a/k/a Fritz Partney, and Ernest F. Partney, Appellants, v. June (Fay) COY and Ernest A. Partney, Respondents.
    No. 51652.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      Thurman, Nixon, Smith & Howald, Jeremiah Nixon, Hillsboro, for appellants.
    Brunson Hollingsworth, Anderson, Hol-lingsworth, Anderson, & Brooking, Hills-boro, for respondent.
   PRITCHARD, Commissioner.

Upon motion grounded upon the insufficiency of the evidence, the trial court directed a verdict against contestants of the last will and testament of Katie T. Bengel, deceased. The proponent of the will, respondent here, is June (Fay) Coy, the sole devisee. She was alleged to have exercised undue influence over Katie and by requests and entreaties induced and compelled her to execute the will. It was also alleged that Katie did not have the requisite mental capacity to execute the will.

The petition alleges and the answer admits that Katie died on or about June 26, 1963, owning real estate and personal property devised by her will. We thus have appellate jurisdiction of this case. Mo.Const.1945, Art. V, § 3, V.A.M.S.

The issue with which we are concerned is that of the sufficiency of the evidence to make a jury question on the mental capacity of Katie to make her will (which is undated, but which the evidence of respondents shows was executed by her in the presence of two attesting witnesses on June S, 1963).

Proponent introduced evidence tending to show that Katie validly executed her will on June 5, 1963. About two weeks prior to that date attorney Herbert K. Moss (now Circuit Judge of the 23rd Judicial Circuit of Missouri) came out to Katie’s home and conferred with her for about an hour about her will. Katie had contacted Judge Moss through his mother, Mrs. Julia Moss. At that time, no one was present in the room with Katie and Judge Moss. She first told him she wanted to make a deed with June’s (Fay’s) name on it, but at his suggestion she made the will. It was Judge Moss’ opinion, based upon his conferences with Katie, and attorney Hugh Anderson’s opinion (he with Judge Moss was an attesting witness to the will) that Katie was of sound mind when she executed same.

Contestants ifi their burden of proof to show want of Katie’s mental capacity, Hardy v. Barbour, Mo., 304 S.W.2d 21, 25 [1], first produced as a witness Gilbert De-Laney, a contestant and the father of June (Fay) Coy. In the last five years before Katie’s death, Gilbert visited her every Sunday, sometimes on Saturday and twice a week, and he would repair things for her. During that time, Katie’s health was “very poorly” in his estimation. He testified, “Well, you talk about things and she would forget.” She would lie on a cot in the dining room almost the entire day, and almost every time he went by she would have to get up and unlock the door. Before March, ■ 1962, Katie had sickness — she claimed she ate “too much sweet stuff.” Thereafter, Katie was never the same — “she just went down.” During March and April, 1963, her mental condition was bad in his estimation — he could just see her going down. On March 30, 1963, Katie sent Gilbert a birthday card, and about four days later she sent him another, forgetting that she had sent him the first one. On June 2, 1963, Gilbert saw Katie at a homecoming at a little country church at Ware, Missouri. On that day she was walking around, but later got sick and told June, “We will have to go home. We can’t stay for the afternoon service." Gilbert went back to Katie’s house that day and found her lying in bed. She said, “I feel awful bad.” He saw her next on June 7, 1963, after she had her stroke. She then lisped in her speech, but recognized everyone around her that day and for a few days.

It was Gilbert’s opinion that Katie did not have enough mental capacity to transact business affairs on either June 2, or June 7, 1963.

On June 14, 1963, Gilbert asked June if Katie had made a will and June said that as far as she knew there was no will. He asked her again on June 21 if Katie had a will, and June then said, “Yes, Daddy, there’s a will.” “Mr. Moss come out,” and “Mrs. Bengel sure made a good choice.” As to who had Mr. Moss come out, June said, “We called him.” “We called Mr. Moss.”

On cross-examination, Gilbert testified that the fact that Katie sent him two birthday cards indicated to him that she was forgetful. She forgot also that he wired her house for her, and she didn’t remember that he had closed an archway for her between the kitchen and dining room of her house. She had forgotten a lot of things, but remembered some things which had happened when he was a boy. Katie was eighty years old when she died. She always recognized him and always knew that she loved him, and she was grateful to him. She was a hardy, strong-minded woman at one time, was very close, and never asked him for advice on business matters. For 100 acres she sold he had offered her $7,300, but she received $14,000 for it after she paid her taxes thereon. He didn’t know if there was anything mentally wrong with Katie, and he was not paying any attention to the part of anyone influencing her to do the things she did. He had no knowledge of anyone coaxing or persuading Katie to make her will. She was closemouthed about business — in money, and she never confided in him.

Parts of June (Fay) Coy’s deposition were read into evidence. She testified therein that for a year before her death Katie was not in perfect health. Her mind was fine — she was keen and walking around. She lived by herself and June did not have to tend her in any way. In March, 1962, Katie had a cold and bladder trouble, and June noticed she was slower in getting up from a rocker. She kind of leaned, but didn’t act like she was going to fall — she could walk. She went to a Dr. Pierce later and had a stone removed without surgery from her vagina. In the summer she went again to Dr. Pierce who found her blood pressure high for which he gave her pills from his office. Katie visited Dr. Pierce about once a month after that— six or seven visits for high blood pressure. On June 2, 1963, Katie went to the Ware, Missouri, homecoming, and on the following Friday, June 7, she had a stroke. June then found her in bed, the window of the bedroom partially open, through which June sent her daughter to unlock the front door. At that time, Katie “kind of blew her words.” June cleaned Katie and later called a doctor who came out the next day. June was with her from June 7 until she died, during which time Katie never talked about money problems or her likes and dislikes of various people. After the stroke, about June 8, Katie signed two checks — one for interest on the bank account, the other her pension check. Both were signed at June’s request, when Joyce Young (a neighbor) was present and helped to set Katie up. Katie then held her pen and wrote her name herself — no one helped her.

Ernest A. Partney, eighty years old, was Katie’s only surviving brother. He visited Katie often. June called him about Katie’s stroke on June 7, and he went to see Katie on June 8. At that time, he testified, in his opinion Katie was not capable of transacting business affairs (“She was very sick, she had a stroke”). Mr. Partney saw Katie several times thereafter, and her condition continued bad.- So also was the testimony of Katie’s niece, Evelyn Bagby, that when she saw Katie on June 9, 1963, she was not capable of transacting ordinary business affairs.

We deem that these opinions (all unobjected to) that Katie lacked mental capacity to transact business affairs were not sufficient to make a submissible issue of whether Katie lacked the mental capacity to make a testamentary disposition of her property either on June 5, 1963 (the date which respondents’ evidence showed was the date of execution of the will) or any date thereafter. There was no evidence tending to show, or from which the jury could have found, that at any time Katie did not possess an understanding of the nature and extent of her property, those persons who were the natural objects of her bounty and the person mentioned in her will. Hardy v. Barbour, Mo., 304 S.W.2d 21; Rose v. Rose, Mo., 249 S.W. 605; Shearrer v. Shearrer, Mo.App., 259 S.W.2d 705; Adams v. Simpson, 358 Mo. 168, 213 S.W.2d 908. It is true, as the evidence shows, that Katie suffered a disabling stroke on June 7, 1963. If the will were executed thereafter, as contestants claim was an issue from the statement of June to her father on June 14 that there was no will that she knew of and that on June 21 there was a will, yet there is no evidence, other than the conclusions that Katie lacked the mental capacity to transact business affairs, that she was in such mental derangement or deterioration (caused by the stroke or otherwise) that she could not make a will, under the above cases on issues of testamentary capacity. In the case of Crossan v. Crossan, 169 Mo. 631, 70 S.W. 136, 139, it was held proper for the trial court to strike from an instruction the words, “to control and conduct her ordinary business affairs” on the proposition that “a man may be capable of making a will, and yet incapable of making a contract or managing his estate.” There was no fact related in the testimony that Katie did not know the nature and extent of her property, the objects of her bounty, or that she did not know what she was doing at whatever time she made her will.

We turn to the issue of undue influence alleged to have been exerted over Katie by June in the execution of the will. There is no evidence that June procured the lawyer to draw the will. There is no evidence that June was present and participated in any way in the drafting of the will, nor is there any evidence by inference or otherwise that she even importuned or persuaded Katie, or was in any way actively concerned in the execution of the will-June did not assist or supervise Katie in anyway in her business dealings and affairs so as to create a confidential relationship between the two. As far as this record shows, Katie was a strong-minded, close person who discussed her business with no one.

Contestants here point to facts showing' what they call “peculiar circumstances” relating to June’s activity in the execution of this will on the issue of her undue influence over testatrix (bracketed comments-ours) : (1) She was present at the time of the first visit by Judge Moss. [The evidence shows that June was outside Katie’s: house, and not present in the room with Katie and Judge Moss when they had discussions relating to the disposition of Katie’s property.] (2) Words spoken by Katie to June after the execution: “Well,, it is all taken care of.” [This shows nothing except Katie’s own volition in making-her will.] (3) She was present when the will was signed and she knew a will was-being drawn. [This, as in the initial conference, shows nothing about any undue activity on June’s part.] (4) Her aunt immediately told her to tell no one that the-will was made. [This was the voice of a. hardy, closemouthed woman, not that of June’s, so as to create any adverse inference against her.] (5) When the attorneys-arrived she (June) knew they were coming- and she was the only one present, other than testratrix, when they came and she let them in the house. [Again, this shows no* undue influence. June was not present in the room under this evidence, when the will was signed, and evidence showing she let the attorneys in the house shows nothing to establish undue influence.] (6) Immediately after the will was executed the deceased physically delivered the will to defendant Coy and then defendant put it in a box. [The evidence shows that Katie sealed the envelope, handed it to June who put it in Katie’s metal box under her dresser. There is no inference from this evidence that June took charge of the will.] (7) Thereafter, June concealed the existence of the will, she even lied about it under her own admission. [Katie told June to tell no one of the will. But even if she lied about it to her father on June 14, 1963, that establishes no element of undue influence under this record.] (8) After the execution of the will defendant was with the deceased almost every minute, day and night, until the death on June 26. [There is no evidence that the constant care given by June to Katie after her stroke was done for the purpose of keeping a domination over her. The record shows that other persons visited Katie freely during this time.] (9) After deceased was hopelessly ill and unconscious, on June 21, five days before the death, defendant Coy admitted in two statements that “we” called the attorney. This is an admission of participation. [Taken as true, as we must in this review, this fact, standing alone, does not establish undue influence — the substitution of June’s will for that of Katie. It does not show that the act of procuring an attorney to draft the will was solely the idea of June. Compare Buckner v. Tuggle, infra.]

Under this whole record, we rule the evidence to be insufficient to establish testatrix’ mental incapacity under cases above cited, or that June exercised any undue influence over testatrix in the execution of her will. Snell v. Seek, 363 Mo. 225, 250 S.W.2d 336, 342; Walter v. Alt, 348 Mo. 53, 152 S.W.2d 135; Beckmann v. Beckmann, 331 Mo. 133, 52 S.W.2d 818; Buckner v. Tuggle, 356 Mo. 718, 203 S.W.2d 449, 452 [1-3].

The judgment is affirmed.

BARRETT and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    James RUTLADER, Respondent, v. Eleanor RUTLADER, Appellant.
    No. 52021.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      J. K. Owens, Kansas City, for respondent.
    Edgar J. Keating, Kansas City, for appellant.
   STOCKARD, Commissioner.

In this action for divorce the trial court dismissed the plaintiff-husband’s petition, and on her cross-bill the court granted the defendant-wife a divorce, the custody of the children, and $17.50 per week for the maintenance of each child. It undertook to grant her another award, subsequently set out and discussed, but did not award her attorney’s fees or alimony designated as such. The wife appealed to the Kansas City Court of Appeals, and the case has been transferred to this court on the ground that “the decree rendered orders a division of real estate, and * * * it directly affects and operates upon the title to real estate in the constitutional sense.”

There was no pleading or prayer by either party that the court render any decree affecting title to real estate. However, in addition to the decree of divorce and the awards of child custody and for child maintenance, the judgment contains this provision: “It is further ordered and adjudged by the court that defendant [wife] be and she is hereby given one-half of the property when it is sold, together with $270.00 which is her part of the rental until sold.” From the transcript it appears, and we shall assume, that the “property” referred to is the home in which the parties lived prior to separation, but we cannot determine how title to the home was held, that is, by the entirety or in some other manner. On this appeal neither party, asks that the provision in the judgment referring to the “property” be set aside or changed in any manner. The only points in appellant’s brief, quoted in their entirety, are as follows: “1. The court erred in refusing to grant defendant any alimony.” and “2. The court erred in refusing to grant defendant any attorney fees.”

We necessarily conclude that appellate jurisdiction of this case is not in this court. There is no showing that the total of the alimony sought and the attorney fees would exceed $15,000, and we cannot indulge in speculation and conjecture for purposes of assuming jurisdiction. Cotton v. Iowa Mut. Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246. The only other possible basis for appellate jurisdiction in this court is that it is a case involving the title to real estate within the meaning of Art. V, § 3, Constitution of Missouri, V.A.M.S. It was the opinion of the Kansas City Court of Appeals that it is such a case, and we shall discuss the reasons advanced by that court, and the reasons for our conclusion to the contrary.

The court of appeals cited and relied on numerous cases which state, as did Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 2 S.W.2d 771, that to vest the supreme court with appellate jurisdiction on the basis that title to real estate is involved the “judgment sought or rendered must be such as will directly determine title in some measure or degree adversely to one litigant and in favor of another; or, as some of the cases say, must take title from one litigant and give it to another.” Also cited and relied on are cases such as Brewster v. Terry, Mo.App., 172 S.W.2d 5, wherein it is stated in effect that appellate jurisdiction is in this court when the judgment sought or rendered will directly affect or operate upon the title itself. The judgment “sought” by the parties in this case would not have affected or operated upon the title to real estate, and in any event the husband has not appealed, and by her appeal the wife does not contend that the judgment should have affected or operated upon the title to real estate. Therefore, if appellate jurisdiction is in this court it is because the judgment “rendered” affected or operated upon the title to real estate. See Watts v. Watts, 304 Mo. 361, 263 S.W. 421, where the judgment rendered in a divorce suit did purport to affect directly the title to real estate, and appellate jurisdiction was held to be in this court on an appeal in which the appellant challenged that part of the judgment affecting title to real estate. The judgment rendered in this case does not direct that the “property” be sold, or that the wife shall have any interest in the real estate. While it says that she is “given one-half of the property” that phrase is followed by the words “when it is sold.” There can be no reasonable meaning attached to this language of the judgment except that the wife is given one half of the proceeds of the sale of the property when it is sold. We do not know whether prior to the divorce the title to the property was in the husband alone or in the husband and the wife by the entirety, but whichever way the title was held the decree does not purport to affect the title or t0‘ operate upon the title of the property. It does no more than attempt to direct what shall be done with the proceeds of a sale of the property if and when it is sold by the owner or owners, whoever they are. We are constrained to conclude that the judgment rendered in this case does not affect or operate on the title to real estate.

However, if we should assume that by the above quoted language of the judgment, contrary to our views as to what it means, title to real estate was thereby affected, we still would be forced to the conclusion that appellate jurisdiction is not in this court. The husband has not appealed,, and therefore he has consented to that disposition of “one half of the property.”' The wife has appealed but she presents no issue to the appellate court which calls for an adjudication of title directly or indirectly and she asks for no judgment on appeal which would affect or operate on the title to real estate.

Cases may be found in which it is stated that “appellate jurisdiction over the subject matter is determined upon the record in the trial court at the time the appeal is granted and that nothing subsequently occurring will defeat or confer jurisdiction in this court.” Hunter v. Hunter, 355 Mo. 599, 197 S.W.2d 299, 300. Similar statements may be found in Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745; Hardt v. City Ice & Fuel Co., 340 Mo. 721, 102 S.W.2d 592; Snowbarger v. M.F.A. Central Cooperative, Mo., 317 S.W.2d 390. However, as stated in Hunter v. Hunter, supra, “This statement of the rule may be too broad if taken literally”. In Feste v. Newman, Mo., 368 S.W.2d 713, this court en banc said that “A correct statement, as evidenced by the rulings of this court, is that appellate jurisdiction of this court of a case must exist at the time of taking the appeal [citing cases], and if it does not then exist nothing •occurring subsequently will result in this court acquiring jurisdiction. * * * However, even though the record indicates that appellate jurisdiction exists in this court at the time the appeal is taken, the failure to preserve and keep alive for appellate review issues essential to the exercise of jurisdiction will result in the lack ■of jurisdiction of this court to rule the case •on appeal.”

It has long been the uniformly accepted rule that to vest this court with jurisdiction on the basis that the case involves the construction of the constitution the •question must be timely raised and preserved and presented as a live issue for determination on appeal. Mooney v. County of St. Louis, Mo., 286 S.W.2d 763; McGuire v. Hutchison, 356 Mo. 203, 201 S.W.2d 322, 327. In a case where jurisdiction in this court depended upon the amount in •dispute, it was held that the “jurisdiction ■depends upon live issues being presented on matters within [its] jurisdiction.” Ewing v. Kansas City, 350 Mo. 1071, 169 S.W.2d 897, 900. In Heuer v. Ulmer, Mo., 273 S.W.2d 169, this court held that for the purposes of determining jurisdiction of the appeal “ ‘The amount in dispute * * * is determined by the amount that actually remains in dispute between the parties on the appeal, and subject to the determinations by the appellate court of the legal question raised by the record.’ ”

Is the rule different when the judgment of the trial court purports to affect title to real estate, but the parties, in effect, consent to that disposition of title, and present only issues on appeal which have no bearing on the issue of the disposition of title? We think not. In Reece v. Van Gilder, Mo., 272 S.W.2d 177, the judgment rendered by the trial court awarded plaintiffs a money judgment and it also purported to vest in plaintiffs a life estate in real estate. The defendant appealed, but did not challenge that part of the judgment affecting his title and vesting a life estate in plaintiffs. It was held that this court had no jurisdiction of the appeal, and the court commented that “[i]t is not enough that the enforcement of the judgment may eventually affect the title to real estate.” In Hunter v. Hunter, supra, the trial court entered a judgment as to Count I of the petition that plaintiff held a life estate and that defendant held the reversion. On Count II it granted plaintiff possession and damages. While defendant’s appeal was pending, plaintiff died and the issues as to Count I became moot. That part of the judgment affecting title no longer presented a “live” issue, and it was held this court had no jurisdiction.

In this case the husband has not appealed, and if the judgment rendered affects title to real estate he does not object and in effect consents to it. The wife has appealed, but insofar as the judgment purports to grant her an interest in real estate (although we think it does not) she consents to it. Her only complaint on appeal pertains to matters totally unrelated to that provision in the judgment allegedly pertaining to title to real estate. It is true that if the judgment is affirmed it will then be enforced, but as stated in Reece v. Van Gilder, supra, it is not sufficient to vest appellate jurisdiction in this court that enforcement of the judgment will affect title to real estate.

In Feste v. Newman, supra, comment was made that Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745, may appear to present a different rule, and we should mention it again. There the trial court decreed specific performance conditioned upon the payment of $1,350.55 by plaintiff, and the only issues specifically presented on appeal pertained to credits allowed to the plaintiff. The case was distinguished in Feste v. Newman on the basis that “the decree of specific performance was conditioned upon the payment of what was determined to be the correct amount, and the judgment of this court was that ‘The judgment is reversed and the cause remanded with directions to condition the decree of specific performance upon a credit to plaintiff of $40 only * * *_>» Thus, whether specific performance should be decreed, and if so upon what terms was an issue directly before this court on appeal. However, in any event, this court en banc in Feste v. Newman said : “The statement in that opinion [Tant v. Gee] that ‘appellate jurisdiction over the subject matter is determined upon the record in the trial court at the time the appeal is granted’ is correct as far as it goes, but it is subject to the observations previously made”, and those observations were that the jurisdiction of this court “depends upon live issues being presented on matters within [its] jurisdiction.” Not only did the court en banc not make an exception to cases involving title to real estate, by the above reference to Tant v. Gee the general rule set forth was specifically made applicable to such cases.

We are of the opinion that the judgment rendered did not affect or operate upon the title to real estate, but that if the confusing language of the judgment be construed to the effect that it does, still there is no jurisdiction here because the issues on appeal do not present any live issue within the jurisdiction of this court.

The case is transferred to the Kansas City Court of Appeals.

BARRETT, C., concurs in result.

PRITCHARD, C., concurs.

EAGER, P. J., and FINCH, J., concur.

DONNELLY, J., concurs in result.

PER CURIAM.

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