text:
    Frank PIGG, Respondent, v. Jack L. BRIDGES and Farmers Insurance Exchange, Appellants.
    No. 48099.
    Supreme Court of Missouri, En Banc.
    Dec. 11, 1961.

      Roy F. Carter, Kansas City (Sprinkle, Carter, Sprinkle & Larson, Kansas City, of counsel), for appellant Farmers Ins. Exchange.
    Richard H. Heilbron, Kansas City, for appellant Jack L. Bridges.
    Gore & Hepburn, Homer A. Cope and Donald W. Browne, and Walter A. Raymond, Kansas City (Raymond, West & Cochrane, Kansas City, of counsel), for respondent.
   HOLLINGSWORTH, Judge.

Inability of the judges of Division One to reach a majority decision in this case-caused it to be transferred to Court En Banc. Supplemental briefs were then filed and the case was again argued and finally submitted. Portions of an opinion considered in Division will be incorporated herein without the use of quotation marks.

On June 11, 1952, certain insurance associations and exchanges, known as “Farmers Insurance Group”, hereinafter referred to as “Farmers”, by written contract effective June 1, 1952, appointed defendant Jack L. Bridges as their “district agent”" in charge of their newly established District 23. On June 21, 1952, a formal opening of their new district office in Clinton, Missouri, was held, to which the general public was invited. During the reception held on that occasion, plaintiff, an invitee, fell down a stairway leading into the cellar of the building in which the office was located as he sought entrance to a toilet to which he had been directed by defendant Bridges. This action for $75,000 damages ensued. Verdict and judgment went for defendants. Thereafter,, plaintiff was granted a new trial on grounds, that the court erred in giving Instructions 8 and 9. Both defendants appealed from that order. Farmers also contends that the trial court erred in failing to direct a verdict in its behalf on grounds the evidence showed as a matter of law that the relationship of Bridges to Farmers was that of an independent contractor.

At trial, plaintiff proceeded upon the theory of Farmers’ liability for the alleged negligence of Bridges under the doctrine of respondeat superior and the trial court,, at plaintiff’s instance, submitted the case under an instruction embodying that theory. The -case- .was likewise so briefed and argued in. this ' Court in Division One.: Upon transfer to Court En Banc, however,1 plaintiff has insisted that, -irrespective of whether a master and servant relationship existed between defendants, the evidence unquestionably presents a clearly submissive issue of Farmers’ liability for the injuries sustained by plaintiff while attending the formal opening. That contention' proceeds upon the theory that Farmers and Bridges conducted the formal opening of the district office as joint adventurers and as such invited the public, including plain-, tiff, to attend said opening, which placed upon both joint adventurers the duty to exercise reasonable care to make the premises safe for their invitees; and that Farmers is, therefore, liable as a joint tort-feasor for any injury negligently inflicted upon plaintiff as a result of an unsafe condition of the premises wherein the formal opening was held.

Consideration of defendants’ contention that the trial court erred in granting plaintiff a new trial on grounds that it had erred in the giving of Instructions 8 and 9 requires a statement of the evidence upon which those instructions were based. A solid floor-tó-ceiling partition divided the office part of the district agency premises from the “back room”. There was an opening in the partition. In the southeast corner of the back room was a rest room, the door to which faced west. One walking from the office through the partition opening to the back room could continue in a direct line to the rest-room door. To one’s left just a step or two before he reached the rest-room door was another door to the cellar stairway. That door faced south and opened inwardly. There were no signs on either door and no directional signs indicating the respective locations of the rest room and the cellar stairs. There were no artificial lights on at the time of the casualty and the evidence varied as to how light or dark it was in the back room.

Plaintiff arrived at the district office about noon and immediately inquired as to the location of' the rest room; Mr; Bridges’ answered “right on back” and pointed to the opening in the partition. Plaintiff walked through the opening into the back room and toward the southeast corner. He saw a door, grasped its knob, pushed, “stepped into a hole” and remembered nothing more until he found himself at the bottom of the cellar steps.

Defendants’ verdict-directing, contributory negligence Instruction 8 was: “The Court instructs the jury that the plaintiff was required by law, while on defendant Bridges premises, to exercise ordinary cafe for his own safety; that is, such care as an ordinarily careful and prudent person would exercise under the same or similar circumstances.' You are further instructed that failure on the part of plaintiff to use ordinary care for his own safety constitutes negligence as that term is used in these instructions, so therefore, if you find and believe from the evidence that the plaintiff wfent into the back room of the building mentioned in evidence to go to the rest room, and if you find that the plaintiff Opened the door to the stairway to the basement and stepped into said stairway without looking, and if you find that by looking he could have discovered said stairway, and if you find that he stepped into the doorway and into said stairway at a time when he could not ascertain what the said doorway led to, and if you find that in the exercise of ordinary care he could have seen the other doorway that led into the rest room, and if you find that he failed to do so, and if you find that such actions on the part of the plaintiff was a failure to exercise ordinary care as hereinbefore defined, then you are instructed that the plaintiff was guilty of negligence and if you find that such negligence directly contributed to cause plaintiff’s injuries, if any, then you are instructed that you cannot find for the plaintiff and your verdict must be for the defendants and this is so even though you may find that the defendants were negligent as set out in other instructions.” (Our italics.)

It is apparent that the italicized portion of the foregoing instruction hypothesized in the conjunctive two directly contradictory findings of fact. The instruction in unmistakable language required the jury to find that by looking plaintiff could have discovered the stairzvay and that at the same time he could not have discovered the stairway. There was evidence supporting each hypothesis, i. e., that in the exercise of ordinary care plaintiff could have and could not have discovered the stairway, and defendants were entitled to disjunctively submit that in the exercise of ordinary care plaintiff could have discovered the stairway, or (if the jury believed plaintiff’s evidence as to lack of light) that plaintiff negligently stepped through the doorway at a time when it was so dark he could not have discovered the stairway. It needs no argument, however, to demonstrate that, submitted conjunc-tively, the two inconsistent contradictory findings of Instruction 8 required the jury to find two facts which could not coexist; Such direction amounted to misdirection under which a jury properly could not perform its function and the instruction was therefore prejudicially erroneous. See Thomas v. Kimsey, Mo., 322 S.W.2d 754, 758[4].

Instruction 9 was: “The Court instructs the jury that there was no duty on defendant Bridges to warn the plaintiff of the presence of the cellar stairs mentioned in evidence if, in the exercise of ordinary care for his own safety, the presence and location of said stairs was apparent to plaintiff himself.”

Plaintiff’s sole contention as to that instruction is that there was no substantial evidence that the presence of the cellar steps “was apparent” to one in the exercise of ordinary care. We do not agree. There was unequivocal testimony that under the conditions as to light as they existed at the time of the casualty, one could see the stairs. It follows that there was substantial evidence to support the hypothesis of Instruction 9 that there was sufficient light in the back room for one in the exercise of ordinary care to have discovered the location and presence of the stairs.

Farmers’ contention that Bridges was an independent contractor and that Farmers, therefore, is not liable for his negligence under the doctrine of respondeat superior is based in large measure upon the provisions of its original contract with Bridges. That contract, insofar as here material, provides that Farmers shall pay Bridges on the basis of commissions for the business produced by him and for the settlement of claims. In consideration therefor, Bridges agreed actively to represent Farmers and to produce a satisfactory amount of business acceptable to its exchanges and to represent no other insurer without written consent; to conform to the regulations of Farmers Exchanges and diligently provide claims and other service to policyholders and train local agents; to maintain adequate records of the business transacted available for audit and review by the Exchanges; to surrender on demand records and other material having to do with Farmers’ business; and to maintain telephone service under the name of the Exchanges; and further:

“Nothing contained herein is intended or shall be construed to create the relationship of employer and employee. The time to be expended by the District Agent is solely within his own discretion so long as the quota required is maintained and the persons to be solicited and the areas within the district involved wherein solicitation shall be conducted are at the election of the District Agent. No control is intended to be exercised by the Associations over the time when, the place where or the manner in which the District Agent shall operate in carrying out the objectives of this agreement, provided only that they conform to normal good business practice.”

We think the provisions of that contract are not decisive of the relationship existing between Farmers and Bridges in the staging of the formal opening of the district office on June 21, at which plaintiff was injured. That contract contains no reference whatever to the opening of a district office or to a custom of Farmers, working in conjunction with the district agent, of holding formal openings of district agency offices to which the general public was invited. The evidence adduced in that regard is of importance.

Prior to appointment as district agent, Bridges was an employee in the policy service department in Farmers’ Kansas City office. Robert L. Anderson was and since 1948 had been Farmers’ state agent in charge of all of the agencies herein mentioned. It was his duty to establish new districts, appoint district and local agents, and exercise direct supervision over such districts and agencies in the production of new policyholders and the servicing of old ones. By letter bearing date of February 19, 1952, Farmers ordered Anderson to consolidate three existing district agencies into a new district with its office at Clinton and advised him that Bridges had been released to accept appointment as district agent in charge thereof. In conformity with that order Anderson caused Bridges to seek out an office in Clinton, which Bridges did. Thereupon, in accordance with Farmers’ policy to approve or reject any office chosen by a district agent, Anderson, accompanied by Bridges, inspected the location and exterior and interior of the building and approved it. Had he not been satisfied with it, he would have directed Bridges to seek another. The purpose of the custom of Farmers to hold open house when a new district office was opened was to create good will for Farmers by making the public acquainted with the location of the office and the personnel in charge of its office. Various means were used in conducting that affair. Food and refreshments were served, door prizes given, to qualify for which the invitees were asked to sign cards giving their names, mailing addresses, insurance policy expiration dates, etc. This procedure gave Farmers and its agents valuable leads for future solicitation of insurance contracts. Anderson advised Bridges that Farmers had a regular form of “ad” publicizing the formal opening and inviting the public to attend that was usually placed in the newspapers. Such an advertisement was run in The Clinton Eye, the cost of which was divided between Farmers and Bridges.

That advertisement carries the heading “FORMAL OPENING!” On the left side and below those words is a picture of Bridges, with an announcement of his appointment as district agent for the “Farmers Insurance Group”, followed by a listing of Farmers’ companies, to wit: Farmers Insurance Exchange, Truck Insurance Exchange, Fire Insurance Exchange. Below the names of those companies, there appear the words: “He is prepared to furnish complete information about FARMERS INSURANCE GROUP policies. Write, telephone or call in person for complete information.” On the right side of the advertisement there appears the date of Saturday, June 21, followed by a list of the free prizes to be given and an invitation from Jack L. Bridges, as district agent of Farmers, and his secretary to “Be Our Guest”. Below that wording is a picture of the front of the new office. The front consists of an entrance door and a large plate-glass window. Upon the window are painted the words “District Sales & Claims Office”, followed by the words “Farmers Insurance Group” as they are arranged and adorned in Farmers’ official insignia; and under that insignia the words “Jack L. Bridges, District Agent”. Across the bottom of the window are the words: “Automobile Truck Liability Fire”. In extra large block letters above the plate-glass window are the words “Farmers Insurance Group”. Suspended horizontally from the wall and hanging above the entrance door is a sign in the form of the official insignia of “Farmers Insurance Group”. (Its installation was suggested by Farmers; Farmers also furnished the officially adorned insignia for the window and furnished Farmers’ signs for policyholders’ automobiles.)

On the day of that opening, Anderson, in his official capacity as Farmers’ State Agent, was present. He brought plaintiff with him as an invitee of Farmers. Plaintiff formerly had been a state agent in Kansas for Farmers and Anderson thought plaintiff’s presence would add prestige to the opening. Upon their entry into the office Anderson introduced plaintiff to Bridges. It was shortly thereafter that, upon inquiry of plaintiff, Bridges directed him to the toilet.

Farmers concedes that its liability for negligence of Bridges in causing injury to plaintiff must be determined upon its relationship to Bridges at the very time the negligent act or acts were committed. See Reiling v. Missouri Insurance Co., 236 Mo.App. 164, 153 S.W.2d 79, 84 [6]; Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252, 255, 116 A.L.R. 1381. On this appeal neither defendant questions the sufficiency of the evidence to support a finding that plaintiff’s injuries were the direct result of the negligence hypothesized in plaintiff’s verdict-directing Instruction No. 1. Consequently, the answer to the question of Farmers’ liability for that negligence depends upon whether Farmers jointly with Bridges owed plaintiff a duty to exercise ordinary care to provide reasonably safe facilities maintained or proffered for the use of persons invited to the formal opening of Farmers’ district offices.

Although there seems to be no all-inclusive definition of the term “joint adventure”, it is often defined as an association of two or more persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill and knowledge. Denny v. Guyton, 327 Mo. 1030, 40 S.W.2d 562, 571; State ex rel. McCrory v. Bland, 355 Mo. 706, 197 S.W.2d 669, 672, 168 A.L.R. 929; Scott v. Kempland, Mo., 264 S.W.2d 349, 354; 48 C.J.S. Joint Adventures § 1, pp. 801-802. A corporation may engage in a joint adventure the purpose of which is within its corporate powers. Hobart-Lee Tie Co. v. Grodsky, 329 Mo. 706, 46 S.W.2d 859, 862. Joint adventures arise out of contract, but may be established without specific formal agreement and may be implied or proved by facts and circumstances showing such a relationship was in fact created. There need not necessarily be an agreement to share losses. There must be, however, some control over the subject matter thereof or property engaged therein. State ex rel. McCrory v. Bland, supra, 197 S.W.2d 1. c. 672. “With respect to a joint adventure involving the control and operation of premises or places, or the use of mechanical contrivances, all joint adventurers are liable for personal injuries suffered by others from negligence in the maintenance, installation, or operation of such premises, places or contrivances, including instances in which the actual negligence is that of some, but not all, members of the joint adventure, or in which the actual negligence is that of agents and employees of the joint adventurers, acting within the scope of their employment; and there is joint liability in this regard.” 48 C.J.S., Joint Adventures, § 14, p. 870. See also James v. Berry, Mo.App., 301 S.W.2d 530, 531.

We are convinced that the evidence above narrated would support a finding that Farmers and Bridges were engaged and actively participating in a joint adventure in conducting the formal opening of the district office at which plaintiff was injured. The signs placed upon the front of the office with the knowledge of Farmers clearly reflect that whatever may have been Bridges’ status as an employee of Farmers, the office was opened, advertised and maintained primarily and essentially as Farmers’ district office in charge of Bridges as Farmers’ district agent and that the general public was invited there primarily and essentially to induce the public to do business with Farmers viz: through 'Farmers, district agent to buy, renew, pay for and adjust claims accruing under Farmers’ policies. We are also convinced that the acts and conduct of Bridges and Farmers, acting through its state agent, Anderson, in planning, advertising, participating in and sharing certain expense of the formal opening of the district office warrant a finding that Farmers and Bridges were active participants as joint adventurers in carrying it out for the profit of both Farmers and Bridges; and that persons accepting the invitation extended to the public to attend such formal opening were invitees not only of defendant Bridges but of Farmers as well.

Assuming such a finding by the jury, Farmers and Bridges are liable to plaintiff for injuries sustained by him as a direct result of. any unsafe condition of the premises to which he was invited, if such condition was known or, in the exercise of ordinary care, should have been known to Bridges or Farmers or both and, in the exercise of ordinary care, was not known to plaintiff. Happy v. Walz, 358 Mo. 56, 213 S.W.2d 410, 415; Oliver v. Oakwood Country Club, Mo., 245 S.W.2d 37, 41; Hartmann v. St. Louis-San Francisco Ry. Co., Mo.App., 280 S.W.2d 442, 446.

By reason of the premises it is our conclusion that the order of the trial court granting a new trial should be affirmed and the cause remanded for new trial on the grounds herein discussed. In so holding, we have not overlooked the fact that on submission of this case in Division One, plaintiff in responding to Farmers’ challenge to submissibility of the case against it under the doctrine of respondeat superior, did not brief his present contention that the case was submissible against Farmers on the theory of its liability as a joint adventurer with Bridges in staging the formal opening. However, in any event, we think that upon transfer to Court En Banc plaintiff, as respondent, under the circumstances here shown had the right to brief defendants’ liability under the latter theory and to seek remand for trial upon that theory. See Martin v. Southwestern Bell Telephone Co., 344 Mo. 83, 125 S.W.2d 19, 20. The question of the precise legal relationship between Bridges and Farmers as employee and employer is difficult; as stated, the judges in Division One were unable to agree upon it. Hence, plaintiff being confronted with that situation should not now be precluded from a trial of his case upon another theory which, under the evidence, makes a submissible' case against both defendants. Under circumstances fairly analogous to those here shown, it is frequently said: “ ‘The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had.’ ” Reece v. Reed, Mo., 326 S.W.2d 67, 72. (For exceptions to this rule, not applicable here, see Smith v. St. Louis Public Service Co., 364 Mo. 104, 259 S.W.2d 692.) We have, therefore, concluded that in the exercise of sound discretion the order granting plaintiff a new trial should be affirmed, to the end that the petition, if necessary, may be amended and the case tried upon the theory of joint adventure herein discussed.

All concur.


source: Caselaw Access Project

author: EAGER, Judge.

license: Public Domain

text:
    STATE of Missouri ex rel. Howard CARNEY, Relator, v. Honorable Andrew J. HIGGINS, Judge of the Circuit Court within and for the County of Platte, State of Missouri, Respondent.
    No. 48907.
    Supreme Court of Missouri, En Banc.
    Dec. 11, 1961.
    Alvin C. Randall, Dwight L. Larison, Hogsett, Houts, James, Randall & Hogsett, Kansas City, for relator.
    William H. Sanders, Dean F. Arnold, Caldwell, Blackwell, Oliver & Sanders, Kansas City, David R. Clevenger, Platte City, for Continental Builders, Inc.
   EAGER, Judge.

This is an original proceeding in prohibition in which we issued our preliminary rule. The question involved is one of venue under the third-party practice.

Mr. and Mrs. Thomas Hott owned a residence property in Clay County; they contracted with Continental Builders, Inc., a Missouri corporation, for the construction of a basement under the house. Continental, in turn, subcontracted the excavation work to one Howard Carney; while Carney or his agent was using a highloader in excavating under the house it struck one or more weight-bearing supports, causing much of the house to collapse. The Hotts, residents of Clay County, sued Continental in that county alleging breach of contract in one count and negligence in another; they prayed judgment for $10,000. Continental, as the sole defendant, was served in Jackson County where its principal office was located; that, of course, may properly be done where it is the sole defendant and the suit is filed in the county where the cause of action accrued. Section 508.040. Continental, within due time, but so far as the record shows, without leave or order of court, filed a third-party petition alleging that if plaintiffs’ house was damaged, all such damage was caused by the negligence of Carney, his agents and employees, and that if Continental was held liable it should have judgment over against Carney; therefore, it prayed judgment against Carney for all sums for which it might be held liable to plaintiffs. Carney was served with a third-party summons in Jackson County, the place of his residence. Thereafter, upon Continental’s application for a change of venue on the ground of prejudice of the inhabitants, the cause was transferred to Platte County; that makes no difference in the status of the case here, for the Court in Platte County acquired only a derivative jurisdiction. Carney filed there his motion as third-party defendant to quash the service on him and to dismiss the third-party petition on the ground that the court had acquired no jurisdiction over him because of improper venue, setting up also the respective residences of the parties. Thereafter plaintiffs filed an amended petition, increasing their prayer for damages to $25,-000, and adding Carney as a defendant. No summons was issued to him thereon, and a copy of the amended petition was merely mailed to his attorneys. Subsequently Carney filed a motion to dismiss the amended petition for the reasons already stated in his motion to quash and dismiss and for the additional reason that there had been no summons or service on said amended petition. On April 21, 1961, the court overruled Carney’s “Motion to Quash and Motion to Dismiss,” which, as we understand it, was a ruling solely upon his first combined motion. This, of course, constituted a ruling adverse to Carney’s contention of improper venue.

We note that the return here is filed in the name of Continental as “a party to be adversely affected,” as are also the briefs opposing relator. This is improper, as prohibition runs solely against the Respondent Judge, and other parties should not appear. However, the case involves a matter of some public interest and we shall disregard the error and consider the documents as filed on behalf of Respondent.

The difficulty here arises from the fact that neither our third-party statute, § 507.-080 (and see Rule 52.10, V.A.M.R.), nor the general venue statutes (Ch. 508) contain any specific venue provisions governing the third-party practice. In essence, Respondent says that the third-party claim here is merely ancillary to the original suit and that the general venue requirements do not apply; hence, venue being proper in the original suit, a third-party summons may run to any county. Relator insists that the general venue statute, § 508.010, is controlling and that the venue as to Carney lies solely in the county of his residence or in the county where third-party plaintiff resides and the third-party defendant may be found (which would be the same county in this instance); also, that the filing of the amended petition adopting Carney as a defendant added nothing by way of venue to the previously invalid proceedings against him, even had he been served in Jackson County.

The only Missouri case on the subject is Memphis Bank and Trust Co. v. West, Mo.App., 260 S.W.2d 866. There, a replevin suit was instituted in Montgomery County by a nonresident corporation against a resident of that county; the subject of the action was a truck and the suit was based upon the breach of a conditional sales contract. Defendant filed a counterclaim alleging a conspiracy to defraud, and also filed a third-party petition for damages against the one from whom he bought the truck, alleging fraud in the sale of the truck to an innocent purchaser without disclosing the encumbrance. The third-party summons was served in Oregon County, but the third-party defendant did not appear. No instructions were offered or submitted on the third-party claim; however, after losing on the merits of plaintiff’s claim, the original defendant appealed and therein he claimed, somewhat incidentally, that the judgment was erroneous because it did not dispose of the third-party claim. Thereon the court said, loe. cit. 879: “This service would not have been sufficient to confer jurisdiction over Connie Ehrhardt had the suit been an original action filed in Montgomery County. Yates v. Casteel, 329 Mo. 1101, 49 S.W.2d 68.

“Section 507.080 RSMo 1949, V.A.M.S., which authorizes third-party practice, does not purport to extend the venue statute, Section 508.010, RSMo 1949, V.A.M.S. It is our opinion, therefore, that the court in the case at bar acquired no jurisdiction over the person of Connie Ehrhardt by virtue of the process issued and served in Oregon County, and that the court should have dismissed said third-party petition before proceeding to trial.” Respondent in our case says that the third-party claim there was not “merely ancillary” and that it involved an independent claim. We see little distinction between the basic situation there and here; in each case the original defendant was, in effect, seeking indemnity over against the one who was allegedly responsible for any liability which he, the defendant, might have incurred or for any loss which might be imposed upon him.

Respondent relies chiefly upon federal authorities and texts. Many of those cases are confused by an intermingling of discussions of jurisdiction, considered from the standpoint of a necessity for diversity of citizenship, and of venue under the federal statute. Moore’s Federal Practice, Vol. 3, p. 504, is cited; the author seems to say that if the third-party claim is “sufficiently ancillary” to obviate the jurisdictional objection to a lack of diversity, it should also be considered ancillary so as to eliminate the original venue requirements. But the author recognizes that “the courts have not been in accord on this matter.” And he also notes that the third-party summons “will not normally run outside the state” and that this affords “a great deal of protection.” Those authorities do not really present a situation comparable to ours, and we need not discuss them at any great length. Respondent cites, with some emphasis, the case of Lesnik v. Public Industrials Corp. (C.A. 2), 144 F.2d 968. 977. There some broad language was used, but the question of venue arose solely on a counterclaim filed by the defendant against the plaintiff and certain new parties, which was based on conspiracy; the suit was pending in New York, but some of the new parties lived in New Jersey. Essentially, the court construed the venue statute referring to “a civil suit commenced by original process” as not applicable to the counterclaim. The new parties were apparently found and served within the district and the court said that the cause was “already localized” there, and could be more “conveniently” disposed of there.

In Lewis v. United Air Lines Transport Corp. (D.C.Conn.), 29 F.Supp. 112, the court said, in part, loc. cit. 115: “Thus gradually was evolved a doctrine that a federal court having jurisdiction of a civil action was vested with ancillary jurisdiction over a supplemental proceeding dependent upon the principal suit even though the supplemental proceeding, viewed independently, lacked the attributes of federal jurisdiction, provided the subject-matter of the supplemental proceeding was ‘(1) to aid, enjoin, or regulate the original suit; (2) to restrain, avoid, explain, or enforce the judgment or decree therein; or (3) to énforce or obtain an adjudication of liens upon, or claims to property in the custody of the court in the original suit. Such a dependent suit is but a continuation in a court of equity of the original suit, to the end that more complete justice may be done.’ * * Indeed, until the new Federal Rules of Civil Procedure became effective, apparently no case went so far as to hold that an action in personam by one tort-feasor against his co-tort-feasor or against any other third person could constitute the subject-matter of a jurisdiction which was ancillary to that obtaining in an original action on the tort. Generally such actions were viewed as original actions, rather than merely supplemental proceedings.” That case involved several death suits against the air line; it sought to bring in Bethlehem Steel Company as a third-party defendant, alleging that it had furnished a defective forging. The third-party petition was dismissed on the ground that the court, though having jurisdiction of the subject matter, had not acquired jurisdiction of Bethlehem’s person. The court further held that the so-called ancillary bill or third-party complaint was necessarily an original action within the meaning of Section 51 of the Judicial Code, 28 U.S.C.A. § 112 for purposes of jurisdiction over the person of the new defendant.

We note here, as typifying the divergence in the federal cases, that in Morrell v. United Air Lines Transport Corp. (S.D.N.Y.), 29 F.Supp. 757, a New York District Court held on substantially the same facts as.in Lewis, supra, that the defendant might bring in Bethlehem on a third-party petition, it being a resident of Pennsylvania, but apparently having been served in the District. The court there held that the third-party claim was ancillary both from the standpoint of jurisdiction and of venue. Yet, even there, it was recognized that the third-party defendant must be served in the District where the suit was pending. See, also, Gray v. Hartford Accident & Indemnity Co. (D.C.La.), 31 F.Supp. 299, as generally in agreement with Morrell, supra, but containing a rather cursory discussion of the subject. As disallowing such a third-party claim on the ground of improper venue, see King v. Shepherd (D.C.Ark.), 26 F.Supp. 357. And as holding that an attempt by one alleged tort-feasor to bring in another (as a third-party defendant) alleged to be wholly or jointly responsible, is not an ancillary proceeding but an independent cause of action, see: Saunders v. Baltimore & O. R. Co. (D.C.W.Va.), 63 F.Supp. 705; Akers Motor Lines, Inc. v. Newman (C.A. 5), 168 F.2d 1012.

We are not persuaded that the federal authorities are of any real assistance to Respondent in our case. Some, in fact, constitute authority that the present third-party claim is not ancillary, but is a distinct and independent suit. We do not feel that Respondent’s cited analogy of garnishment proceedings (Smith v. Bankers Life Insurance Co. of Nebraska, Mo.App., 170 S.W.2d 111) is comparable; attachment and garnishment constitute merely a method of “impounding the defendant’s assets and collecting the judgment * * * if one is obtained on the merits,” State ex rel. Auchincloss, Parker & Redpath v. Harris, 349 Mo. 190, 159 S.W.2d 799, 805, and may be pursued wholly independently of any jurisdiction over the person. Respondent also urges that the general venue statute, § 508.010, is not applicable here because it is confined to suits “instituted by summons,” as provided for in § 506.110, and that “this third party action was not so commenced.” We see no merit whatever in this point. A 'third-party petition or claim is also instituted by summons, the only difference being that the court grants leave to serve the summons (Rule 52.10; § 507.080), whereupon it is issued by the clerk in like manner as in any ordinary suit.

There can be no doubt that venue would be improper under § 508.010 in a suit in Clay County by Continental against Carney; it would also be improper in a suit there by the Hotts against Continental and Carney. In the first instance, neither party resides in the county of suit, and subdivision (1) would preclude the action. In the second instance, a suit against a corporation and an individual must be filed in a county in which one of the defendants resides. Section 508.010(2). State ex rel. Columbia National Bank of Kansas City v. Davis, Banc, 314 Mo. 373, 284 S.W. 464; State ex rel. Whiteman v. James, Banc, 364 Mo. 589, 265 S.W.2d 298. And even if one defendant is found and served in the county of plaintiff’s residence, the suit being filed there, service upon another defendant in a different county where he lives is invalid. State ex rel. Bartlett v. McQueen, Banc, 361 Mo. 1029, 238 S.W.2d 393. Neither § 507.080 governing third-party practice nor Rule 52.10 (and the Rules, incidentally, do not purport to affect venue, see Rule 51.01) contain any provision whatever broadening venue requirements on a third-party claim; in fact, neither contains any venue provisions. We note by analogy, however, § 509.470 (in our Code Chapter on Pleadings) as follows: “When the presence of parties other than those to the original action is required for the granting of complete relief in the determination of a counterclaim or cross-claim, the court shall order them to be brought in as defendants as provided in this code if jurisdiction of them can be obtained.” The significant words here are: “if jurisdiction of them can be obtainedThis appears to us to state -a legislative intent in a situation somewhat analogous. Proper venue is an essential element of judisdiction over the person. State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62; State ex rel. Bartlett v. McQueen, 361 Mo. 1029, 238 S.W.2d 393.

Essentially, we are asked to extend the venue statutes by the device of holding that there are no venue requirements or limitations on a third-party claim. We are unwilling to do so. The convenience and protection of a defendant is at least one essential reason for the enactment of venue statutes. As a practical matter, we may easily foresee a possibility of serious abuses of process if the practice here sought is permitted, particularly in cases where there may be connivance between the plaintiff and the original defendant. We hold here that the third-party petition was a suit instituted by summons and that it was and is subject to § 508.010. Thus, there was no proper venue or service on the third-party petition and the motion to quash the service and dismiss it should have been sustained. To hold otherwise would be to legislate into § 507.080 (third-party practice) an exception or addition to the general venue statutes, and especially to § 508.010. We are often accused of legislating, without justification, but in any event we decline to do it here advisedly. On the facts of this case we approve the statements made in Memphis Bank and Trust Co. v. West, Mo.App., 260 S.W.2d 866, quoted, supra.

We do not mean to say that there may never be a third-party claim which is so inseparably linked with, and ancillary to, the original suit as to derive proper venue therefrom. This, however, is not such a case. It has been said that in a third-party indemnity claim, “two distinct lawsuits proceed side by side.” 3 St. Louis University Law Journal, pp. 346-347. And here Continental seeks relief entirely outside' the original suit. 92 C.J.S. Venue, § 61, p. 765. If the legislature wishes to permit the bringing in of substituted defendants, joint tort-feasors, or possible indemnitors from all over the state on'third-party petitions, then we think it should act accordingly. As we understand the order of the trial court, it did not rule on Carney’s motion to dismiss the amended petition of plaintiffs joining him as a defendant. Under our ruling that petition should be dismissed as to him, as should the third-party petition. There was no service of summons upon the amended petition, and in any event the venue as against the defendants jointly would have been improper, as already pointed out. Since no objection has been made,-we do not rule or comment further upon the apparent failure to procure leave to file the third-party petition and serve summons. Section 507.080; Rule 52.10.

The preliminary rule in prohibition will be made absolute; it is so ordered.

All concur.

      . All statutory references are to RSMol959 and V.A.M.S.

       Now 28 U.S.C.A. § 1391.


author: CROSS, Judge.

text:
    MAY FURNACE COMPANY, Inc., Plaintiff-Respondent, v. Clyde CONAWAY, Defendant-Appellant.
    No. 23440.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1961.
    Leo L. McCormick, Downey, Abrams & Sullivan, Kansas City, for appellant.
    Davis, Thomson, Van Dyke, Fairchild & Walsh, Thomas J. Daly, Kansas City, for respondent.
   CROSS, Judge.

The circuit court entered a judgment permanently enjoining defendant Clyde Conaway, a former employee of plaintiff furnace company, from threatening or doing acts intended to injure plaintiff’s business. Defendant prosecutes this appeal.

The company employed Conaway on May 1, 1960, as a furnace cleaning and service man and discharged him on August IS, 1960. Two days later the company filed its petition, alleging in part the following:

“2. That defendant was employed by plaintiff as a furnace cleaning and serviceman from, on or about May 1, 1960, to August IS, 1960, at which time defendant was discharged by plaintiff.
“3. That defendant has threatened to contact customers and prior customers for whom defendant performed services while in the employ of plaintiff and threatened to advise said customers and prior customers that the work done was not necessary, was not done in a workmanlike manner and, that said customers and prior customers were charged for services and/or parts not supplied.
“4. That defendant has contacted by telephone or in person at least one customer and prior customer of plaintiff advising him that the work done by defendant, as plaintiff’s employee and agent, was not necessary, was not done in a workmanlike manner, and said customer and prior customer was charged for services and/or parts not supplied.
“5. That defendant’s actions and threatened actions are a breach of defendant’s duty as plaintiff’s former agent, not to divulge confidential information.
“6. That unless defendant is restrained and prevented from said actions and threatened actions, plaintiff will suffer permanent and irreparable damage to its business, business reputation and standing in the community.
“7. That the precise amount of plaintiff’s damages cannot be definitely ascertained. !
“8. That defendant is not financially responsible.”

The trial court issued forthwith its order upon Conaway restraining him from doing the acts complained of until further hearing. Thereafter, a hearing was had upon Cona-way’s motion to dissolve the order. The parties appeared and adduced evidence. Conaway testified in part as follows:

“Q. Mr. Conaway, did you make certain threats you were going to contact customers of May Furnace Company that you yourself had had contact with when you were an employee and tell them the work was improperly done and they had been overcharged? A. Well, I contacted the customer at the time I was dismissed from the May Company for the reason they didn’t sell the people the product they bought.
“Q. Did you in fact make threats you were going to do so to some ten people? A. Not ten.
“Q. How many? A. Two, I know of.
“Q. Have you a list you called Mr. Posladek and told him you were going to call them, ten a day and ruin his business? A. I told Mr. Posladek on the phone why I — the reason—
“Q. My question is, did you tell him you had a list of ten and you were going to call them ? A. I said I know of ten.
“Q. And you told him you were going to call those ten and ruin his business, is that correct? A. Yes.
* * * * * *
“Q. Now actually your whole attitude was because you did not feel you should have been fired? * * * Just, answer the question. Is that right or wrong ? A. That is right.
■ “Q. All right. And because you thought you had been unjustly terminated you had as your whole intent to ruin his business, is that correct? A. I was going to let those two people know of their sand-blasted furnaces.
“Q, The - contracts actually called • for sand-blast— A. They did not. They called for new ones, and they took them down and had them sand-blasted and-sold them back to them as new ones, and I was going to tell the Finlaysons and I contacted the Finlaysons.
“Q. How many others did-you contact ?
******
“Q. Now, I want to hand you what has been marked Plaintiff’s Exhibit No. 1. Have you ever seen that before? A. No.
“Q. That is the Finlayson contract, is it not? That is the kind of contract you used for the Finlaysons and others, is that correct ? A. I was called out to clean that furnace.
• “Q. That is the kind of contract, and it says sand-blast, reset and install, does it not? A. It didn’t say that. It does now.
* * * * * *
“Q. Now at the time this restraining order was issued it was your intent to hurt the May Furnace Company business ? A. At that time, yes.”

Evidence on behalf of the company consisted of testimony given by its president. He identified the document about which Conaway was questioned as the contract between the company and the Finlaysons. The contract called for sand-blasting.

The hearing was treated as a trial on the merits. The trial court found that plaintiff was entitled to and should be granted a permanent injunction, and entered the following judgment:

“It is, therefore, Ordered, Adjudged and Decreed that defendant be permanently enjoined and prohibited from threatening or doing acts with the sole intention and design to injure, impair or destroy plaintiff’s business or the orderly and peaceful carrying on of such business”.

Defendant’s first assignment of error is that the petition failed to state a claim upon which injunctive relief could be granted. He relies upon the general rule that injunction will not issue to restrain the publication of libel and slander because the law provides an adequate remedy, as the court stated in Wolf v. Harris, 267 Mo. 405, 184 S.W. 1139, and Ryan v. City of Warrensburg et al., 342 Mo. 761, 117 S.W.2d 303. We recognize our duty to apply that rule whenever necessary, However, it has no application here because this case is not bottomed on libel or slander as were the Wolf and Ryan cases.

In considering this point, we treat the issues that were tried by consent of the parties “in all respects as if they had been raised in the pleadings”. Civil Rule 55.54, V.A.M.R. Defendant testified on cross examination, without objection, that he told the company’s president that he was going to call ten customers and ruin his business. Conaway further testified that it was his intent to hurt the company. No motive or purpose on the part of Conaway other than the intention to “ruin” or “hurt” the defendant is shown by the evidence. A strong inference arises from the evidence that Conaway’s intention to ruin and hurt the May Furnace Company was his sole intention and motive. Since the issue of defendant’s intention was inquired into without objection, that intention became an issue in the case “in all respects as if (it) had been raised in the pleadings”. In Payne v. White, Mo.App., 288 S.W.2d 6, 10, the court said: “When a fact is not pleaded but the parties offer evidence concerning it and there is no objection and the parties try that issue, it is properly before the court and can be made the basis of a decree, for the petition will be treated as amended. Section S09.S00 RSMo 1949, V.A.M.S. * * * We therefore treat the petition here as having been amended to allege that defendant committed the acts complained of with the intention to hurt and ruin plaintiff’s business.

In our opinion, the petition in this case as amended states a cause of action based on a well defined, separate species of tort — a claim “upon which legal and equitable relief may be granted for alleged interference by defendant with plaintiffs’ business and contractual relations”. Downey v. United Weatherproofing, Inc., 363 Mo. 852, 253 S.W.2d 976, 977. In that case, the Supreme Court said:

“It has now come to be the view of a majority of courts in this country that one who maliciously or without justifiable cause induces a person to breach his contract with another may be held responsible to the latter for the damages resulting from such breach. * * *
“The right to perform a contract and to reap the profits therefrom, and the right to performance by the other party, are property rights entitling each party to the fulfillment of the contract by performance. And the intentional interference with the contractual relation without just cause so as to effect a breach of the contract is a wrong for which the wrongdoer may be held accountable in damages. The right of recovery for inducing a breach of a contract is but one instance of the protection which the law affords against unjustified interference in business relations”.

Before the Downey case was decided, the Supreme Court in Glencoe Sand & Gravel Co. v. Hudson Brothers Comm. Co., 138 Mo. 439, 40 S.W. 93, 94, 36 L.R.A. 804, followed the minority rule in the historic case of Lumley v. Gye (1853), 2 El. & Bl. 216, 118 Eng.Reprint 749, in which the dissenting opinion stated, that “merely to induce or procure a free contracting party to break his covenant, whether done maliciously or not, to the damage of another * * * is not actionable”. The Downey case specifically disapproved the Glencoe opinion and adopted the majority opinion in Lumley v. Gye, which was “that an action will lie for the malicious procurement of the breach of any contract”. Expressing its reasons for its reversal of opinion, the Supreme Court said:

“And our change of view has been brought about by our present belief that rights of the parties to an existing contract are of such importance in the business world that such rights should be protected from intentional and unjustifiable interference by a third person. * * * It has been written that a ‘citizen’s right to pursue any business, calling, or profession he may choose is a property right to be guarded by equity as zealously as any other form of property. Not every act, of course, which injures another’s business will give rise to a cause of action for injunction, irrespective of the availability of legal relief; yet, in a proper case, the remedy will be granted to protect such property right against irreparable injury resulting from the tortious or wrongful acts of others.’ 28 Am.Jur., Injunctions, § 124, p. 315.”

In the Downey opinion the Supreme Court gives due recognition to the constitutional guarantees of free speech and trial by jury, and the fact that those provisions have been considered barriers to the granting of injunctions as against further defamation, “absent some other ground for equitable *e-lief such as breach of trust, coercion, conspiracy, or a willful, malicious, continuing and irreparable injury to a property right, (citing cases)”. Continuing, the Supreme Court stated:

“But in our case, although the stated false representations are of defamatory character, they are not alleged as such’as the basis for injunctive relief. They are alleged as a means by which defendant was attempting to accomplish another continuing wrong from which plaintiffs seek relief.
“The petition does not purport to state a claim upon defamation. It is alleged that defendant had induced and is continuing in attempting to induce customers to refrain from doing business with plaintiffs and to induce plaintiffs’ customers to cancel their contracts by offering to indemnify the customers against liability and by the use of stated false and fraudulent representations, all with the wrongful, unlawful and mali-doip^ purpose of preventing plaintiffs’ pursuit of their lawful business and of depriving plaintiffs of the benefit of their existing contracts to plaintiffs’ irreparable injury. We think it must be conceded that the gist or gravamen of plaintiffs’ claim as alleged is for relief against the continuing violation of their property rights — their right to pursue their business and their right to reap the profits from existing contracts.
* * * * * *
“We are of the opinion that plaintiffs have stated a claim for the equitable relief of injunction”.

We have quoted at length from the Dow-ney case because it is the law that controls in this case and supports our ruling on the sufficiency of plaintiff’s petition. The Dow-ney case follows the majority rule and is supported by other general authority not quoted in the opinion including 43 C.J.S. Injunctions § 138; Prosser, The Law of Torts, 2d Ed.1955, pp. 735-736-738-769; Vol. ⅞ The Law of Torts, Harper & James, 1956, p. 474.

Defendant next complains that it was error to issue the injunction because what he did or threatened to do were lawful acts. With this we cannot agree. Under Conaway’s own admissions, he committed and threatened the commission of acts that are in the nature of a tort — therefore wrongful and unlawful. He testified that he threatened to call the company’s customers and tell them the work was improperly done that they had been overcharged; that he called the Finlaysons and told them the company had taken their furnace down, sand-blasted it and sold it back as a new one; and, that he had a list of ten customers he intended to call. Conaway admitted that his purpose was to ruin the company’s business. He testified that his desire to ruin the company’s business arose from his discharge. He also admitted that when the restraining order was issued it was his intention “to hurt the May Company”. It is obvious that, in disparaging plaintiff’s business practices, Conaway was actuated by resentment, ill will and spite, and that his sole purpose was to injure plaintiff’s business.

It is stated in Prosser on Torts, Sec. 106, “In actions for interference with economic relations, the defendant’s motive or purpose frequently is the determining factor as to liability — that bad motive is the gist of the action.- — Since Lumley v. Gye it has been held that a purely ‘malicious’ motive in the sense of spite and a desire to do harm to the plaintiff for its own sake, will make the defendant liable- for interference with contractual relations.” We can infer that the specific harm intended by Conaway was to induce the breach of customer contracts made with the company, and to cause other persons to refrain from patronizing plaintiff. Such interference with the rights of another cannot be considered as lawful.

Defendant next contends that his right of free speech, guaranteed by the Constitution of the United States, Amend. 1, and by the Constitution of the State of Missouri, art. 1, § 8, V.A.M.S., was abridged by the issuance of the injunction. We believe defendant has waived his right to question the constitutionality of the court’s action. The issue comes too late for consideration in this appeal. Defendant was fully apprised by the petition that injunctive relief was sought. His answer, aside from admissions and a disclaimer of knowledge, consisted only of general denial. No affirmative defense whatever, was asserted and there was no reference to or invocation of constitutional guaranties. Defendant’s only other pleading prior to or during the trial was his motion to dismiss, which contained tío supporting ground or reference to any constitutional privilege.

The first time defendant asserted the defense of constitutional immunity was in his motion for a new trial. It is fundamental that a constitutional question in order to be available to a party litigant must be raised at the first opportunity present in the case. We decline to consider the assignment. However, it is a matter of interest that in the Downey case the Supreme Court said:

“We are of the opinion that plaintiffs have stated a claim for the equitable relief of injunction. And, while we believe a court should exercise the power to enjoin a spoken or printed word with great caution, we are constrained to the view that, in the instant case, if the allegations of fact as stated in the third count of plaintiffs’ petition are established by proof, constitutional provisions insuring free speech and trial by jury may be correctly considered inapplicable. American Malting Co. v. Keitel, 2 Cir., 209 F. 351, Id., D.C., 217 F. 672; Menard v. Houle, 298 Mass. 546, 11 N.E.2d 436; Grand Rapids School Furniture Co. v. Haney School Furniture Co., 92 Mich. 558, 52 N.W. 1009, 16 L.R.A. 721; Nann v. Raimist, 255 N.Y. 307, 174 N.E. 690, 73 A.L.R. 669; cases collated in Annotation, 148 A.L.R., supra, at pages 860-866, and in Annotation, 175 A.L.R. 438 at pages 499-502; 43 C.J.S. Injunctions § 135, pp. 680-681; 28 Am.Jur., supra, Sec. 119, pp. 311-312 and § 124, pp. 315-317; Vol. 4, Pomeroy’s Equity of Jurisprudence, 5th Ed., § 1358, pp. 968-969.” [363 Mo. 853, 253 S.W.2d 983.]

Defendant’s final assignment is that the decree of injunction does not conform to the pleading or the evidence. It is stated in 43 C.J.S. Injunctions pp. 932, 933, that it is impossible to lay down any precise rule of universal application as to the degree of certainty required, further than the rule that an injunction should be so clear and certain in its terms that the defendant may readily know what he is restrained from doing, and that he must obey it at his peril. It is our opinion that those purposes are adequately served by the judgment rendered.

It is our separate finding that plaintiff is entitled to a permanent injunction as prayed.

Therefore, the judgment is affirmed.

All concur.


author: McDowell, judge.

text:
    Doyle GIBSON and Grange Mutual Casualty Company, Plaintiffs-Respondents, v. Alberta EPPS, Defendant-Appellant.
    No. 8018.
    Springfield Court of Appeals. Missouri.
    Dec. 12, 1961.

      Kearby & Calvin, Poplar Bluff, for appellant.
    Jack L. Jolly, Poplar Bluff, for respondents.
   McDowell, judge.

The Circuit Court of Butler County, Missouri, entered a judgment for plaintiffs and against defendant in the sum of $978.00 based upon a foreign judgment rendered in the Court of Common Pleas of Trumbull County, Ohio, in a damage action growing out of an automobile collision. From this judgment defendant appealed.

The facts giving rise to this controversy are that plaintiff, Doyle Gibson, a resident of Ohio, was the owner of an automobile which was insured by plaintiff, Grange Mutual Casualty Company. On October 26, 1956, defendant, a resident of Missouri, while visiting in Ohio, driving her 1953 Pontiac automobile, was involved in a collision with Gibson’s car. As a result of this collision plaintiffs instituted an action for damages for injuries sustained to the Gibson automobile in the Court of Common Pleas in Trumbull County, Ohio, a court of proper jurisdiction for such action. Defendant was duly served with process in said action but defaulted by failing to answer or file other pleadings. The cause was tried and judgment rendered for plaintiffs on December 4, 1958, for $978.00. Plaintiff, Grange Mutual Casualty Company, paid the amount of said judgment to Gibson and became subrogated to Gibson’s claim to this extent.

On December 8, 1959, plaintiffs filed suit on the above foreign judgment against defendant in Butler County, Missouri, the place of defendant’s residence.

The petition was in the usual form.

Defendant’s amended answer pleads (1) a general denial, and, (2) a counterclaim. The counterclaim alleged, inter alia, that the collision which occurred in Ohio was due to the negligence and carelessness of the driver of the Gibson car (setting out three specific grounds of negligence relied on) ; that by reason of such negligence and carelessness on the part of plaintiff, as aforesaid, defendant sustained damages for personal injuries in the sum of $25,000 and property damage to her Pontiac automobile in the sum of $1500 for which amounts she prayed judgment.

Plaintiffs filed an amended motion to strike the counterclaim of defendant’s answer on the ground that: (1) the counterclaim is one which cannot be properly interposed in this action.

(2) The things and matters alleged in the counterclaim have, or should have been heretofore, adjudicated in a court of competent jurisdiction and are res judicata in this case.

(3) The counterclaim is untimely and barred by the statute of limitations.

The trial court sustained plaintiffs’ motion to strike the counterclaim on the first two grounds of said motion and found for the defendant on the third ground.

The only issue complained of on this appeal is that the trial court committed error in sustaining plaintiffs’ motion to strike defendant’s counterclaim.

To support this contention defendant-appellant cites Supreme Court Rule 74.79(h), V.A.M.R., which reads : “Defenses — Counterclaims. Any defense, set-off or counterclaim which under the law of this state may be asserted by the defendant in an action on the foreign judgment, may be presented by appropriate pleadings and the issue raised thereby shall be tried and determined as in other civil actions. Such pleadings must be filed within thirty days after personal jurisdiction is acquired or within thirty-five days after the mailing of the notice prescribed in paragraph (e).”

This Rule is the same as § 511.760 RSMo 1959, V.A.M.S., which contains sections 16 and 17 and reads :

“16. The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this section remains unimpaired.
“17. This section shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.”

The Uniform Enforcement of Foreign Judgments Law was adopted by Missouri in 1951. By the Act procedure is made available under which the judgment creditor can effectively obtain relief and, at the same time, give adequate protection to the judgment debtor to present any defense that can now be interposed to an action on such judgment. The Rule of the Supreme Court was adopted in furtherance of the provisions of the Uniform Enforcement of Foreign Judgments Act. 72 A.L.R.2d, p. 1255 (Annotation — Uniform Enforcement of Foreign Judgments Act).

The instant case is not an action under section 511.760 RSMo 1959, V.A.M.S., the Uniform Enforcement of Foreign Judgments, but an action to enforce a judgment rendered in a sister state.

The full faith and credit clause of the Federal Constitution, art. '4, § 1, precludes any inquiry into the merits of the cause of action, the logic or consistency of the decision, or the validity of the legal principles on which the judgment is based. 50 C.J.S. Judgments § 891, pp. 492, 493.

A judgment is ' entitled to full faith and credit and is conclusive even though the judgment is inconsistent with the findings or decision on which it is based; and a default judgment, although at variance with the facts pleaded in the complaint, is entitled to full faith and credit and is conclusive. 50 C.J.S. Judgments § 891, p. 493.

In the instant case appellant made no attempt to deny the judgment sued on but relies solely on the court’s denial of her right to file a counterclaim which shows on the face of the pleadings that it goes to the merits of the original suit.

In McDougal v. McDougal, Mo.App., 279 S.W.2d 731, 739 [25-30], Judge Stone, speaking for this court, stated: “ * * * Where it is reasonably possible to do so, such construction will be adopted as will give force and effect to the judgment, make it serviceable instead of useless, and support rather than destroy it. Furthermore, in respect to a judgment rendered by a court of general jurisdiction of a sister state, it is presumed, absent any showing to the contrary, not only that the court had jurisdiction both of the parties and of the subject matter (Toler v. Coover, 335 Mo. 113, 71 S.W.2d 1067, 1069(5); O’Connell v. Smith, Mo.App., 131 S.W.2d 730, 732(3); Hicks v. La Plant, 236 Mo.App. 299, 151 S.W.2d 104, 106(1)) but also that the court ‘followed its laws and entered a valid judgment in accordance with the issue made in that case’ * * *. A party asserting the invalidity of such judgment has the burden of overcoming the presumption of validity, unless the proceedings show on their face that the judgment is not entitled to that presumption.”

In the instant case there is no contention that the Common Pleas Court in Ohio, which rendered the judgment (the basis of this action) against appellant, was not a court of general jurisdiction having power to render the judgment and the pleadings show on their face that the court had jurisdiction of both the subject matter and the parties. The judgment appears to us to be one entitled to full faith and credit in so far as it finally adjudicates that in Ohio appellant was guilty of negligence, as charged in the damage action, on which the court rendered judgment in that state. Such being true, we cannot, in any sense, permit that issue to be relitigated here under the counterclaim filed by appellant.

Such a judgment is only subject to attack for: (1) lack of jurisdiction over the subject matter; (2) failure to give due notice to the defendant; and (3) fraud in the concoction of the judgment. In re Veach, 365 Mo. 776, 287 S.W.2d 753, 759 [6-9]; Howey v. Howey, Mo.Sup., 240 S.W. 450; Leichty v. Kansas City Bridge Co., 354 Mo. 629, 190 S.W.2d 201; Kilbourn v. Kilbourn, 354 Mo. 17, 190 S.W.2d 206; Hoffman v. Hart, Mo.App., 309 S.W.2d 709, 711 [1], None of these grounds appear in the present action.

It was stated by the Supreme Court in the Veach case, supra, 287 S.W.2d page 759 that: “We cannot and will not rein-vestigate the merits of those charges. See: 50 C.J.S., Judgments, § 891, p. 492 et seq.; Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed 1577; Cook’s Estate v. Brown, 346 Mo. 281, 140 S.W.2d 42, 128 A.L.R. 1396; Shearer v. Parker, [364] Mo. [723] 267 S.W.2d 18.”

Appellant cited Kilbourn v. Kilbourn, 354 Mo. 17, 190 S.W.2d 206 to support her contention that her counterclaim could be interposed in this action. On page 207 of the opinion [1-3] the court quoted from Marx v. Fore, 51 Mo. 69, at page 75, 11 Am. Rep. 432 as follows: “ ‘The rule is that they (judgments of other States) are to be just as conclusive as domestic judgments, with this exception, that “they are open to inquiry as to the jurisdiction and notice to defendant” * * *'".

This case in no way supports appellant’s contention. If appellant had desired to file a counterclaim to the merits of the action, under the law, she would have had to file such a defense in the original suit.

Appellant cites Emerson-Brantingham Implement Co. v. Montgomery, 222 Mo.App. 12, 300 S.W. 538. In this case the court stated on page 539[1]:

“The first question confronting us is whether or not the defense interposed by defendant’s answer is a collateral attack on the Kansas judgment which is the basis of this action.
“The rule governing this question is well stated by the Supreme Court in Howey v. Howey, 240 S.W. 450, 457, in the following language:
“ ‘In the discussion of this case we may go further than our rule permits. In collateral attacks the rule is well stated in Williams v. Williams, 53 Mo.App. [617] loc. cit. 619, quoted supra. If under the law the court had jurisdiction of the subject-matter, and jurisdiction of the person, as shown by the record, then the collateral attack must fail. But where there is a direct attack for fraud, by way of answer in cases where there is a suit upon the judgment from the sister state, then we may go into such fraud as entered into the very concoction of the judgment. * * * We think that our court has never gone further than to hold that these judgments from a sister state can only be questioned for (1) jurisdiction over the subject-matter, (2) failure to give legal notice to defendant, and (3) where there has been some fraud in the concoction of the judgment, as where the defendant is made to appear, when in fact there was no authorized appearance.’ ”

This case completely refutes appellant’s contention that she can file a counterclaim which goes to the merits of the original suit.

Appellant cites State ex rel. Mack v. Scott, Mo.App., 235 S.W.2d 106. In this opinion it is stated on page 111[9] that: “A party failing to set up by way of counterclaim in the original suit any related claims he may have against the opposite party waives the claims and cannot later assert them. [Citing authority].”

This holding refutes appellant’s contention that she can in the present action file a counterclaim which goes to the merits of the action.

The law is that a judgment creates a new right in the judgment plaintiff and imposes a new duty on the judgment defendant independent of the cause of action alleged in the suit in which the judgment was given. A suit on a judgment is a suit on this new right, not the old cause of action; and it is immaterial whether a cause of action did or did not exist before judgment. Restatement of Conflict of 'Laws, Section 431, Comment a, p. 514.

It is unnecessary to consider other alleged statements in appellant’s brief. The law is well settled that in a suit on a foreign judgment the only defenses that the judgment debtor can impose are jurisdiction over the subject matter, failure to give legal notice to the defendant and fraud. In the instant case appellant undertakes to re-try the original suit by filing a counterclaim which goes to the merits of the action. This,, she cannot do. A final valid judgment on the merits rendered by a competent court having jurisdiction of the parties and the subject matter is conclusive on every other state and the merits cannot b.; reinvestigated. The full faith and credit clause of the Federal Constitution precludes any inquiry into the merits of the cause of action.

The judgment of the trial court is affirmed.

STONE, P. J., and HUNTER, Special Judge, concur.

RUARK, J., not participating.


author: ELMO B. HUNTER, Special Judge.

text:
    Charles M. CABLE, Administrator of the Estate of T. J. Wilkins, Deceased, Plaintiff, v. R. Chester WILKINS, a son of T. J. Wilkins, and Leslie Scott, Assignee, Defendants.
    No. 7965.
    Springfield Court of Appeals. Missouri.
    Nov. 28, 1961.
    Bradley & Noble, Kennett, for plaintiff-interpleader.
    Ted M. Henson and Ted M. Henson, Jr., Poplar Bluff, for defendant-appellant.
    McHaney & McHaney, Kennett, for defendant-respondent.
   ELMO B. HUNTER, Special Judge.

This is an interpleader action commenced by Charles M. Cable, Administrator of the estate of T. J. Wilkins, deceased, to determine whether deceased’s son, R. Chester Wilkins, appellant herein, or Leslie Scott, resnondent herein, is entitled to a certain estate interest of approximately $7,290.40 assigned by appellant to respondent to secure a note in the sum of $5,000.00.

The controversy arose out of the sale on July 15, 1959, by Scott to Wilkins of a tavern and trade fixtures in Fort Gibson, Oklahoma, together with a $500.00 loan to Wilkins by Scott for all of which Wilkins gave Scott a $5,000.00 note secured by Wilkins’ estate interest mentioned above. The cause was tried to the court without a jury and judgment was rendered for respondent Scott for $5,800.66, including interest and attorneys’ fees.

Respondent pleaded and relied upon the note. Appellant’s pleaded defense to the note was “(it) was obtained from him by fraud * * * without consideration * * * that there has been a total failure of consideration”, specifying (1) Scott falsely represented the tavern had a reasonable value of $4,500.00; (2) that it “was a profitable rental building and business” ; (3) that its net profits were $250.00 per, week and (4) that it was fre-e of liens and encumbrances. Appellant additionally alleged the real estate, trade fixtures and beer business were not worth over $700.00; that net profits never exceeded $25.00 per week as rental income; “that the beer trade of said tavern depended upon the use of baseball pool selling and policy number games to secure the trade of negro customers to promote the sale of beer”; that the trade fixtures were never delivered and that there was a lien on the premises. Appellant’s final allegation was that upon discovery of the fraud he repudiated the transaction and now tenders into court the $500.-00 loan money and the warranty deed to the property, praying that the deed be can-celled and that the parties be restored to their original status.

On this appeal appellant has abandoned any claim of fraud or total failure of consideration and contents himself with the sole contention that “The trial court erred in rendering judgment for defendant Scott for the full amount of the note sued on and in failing’to reduce the amount of the judgment to the extent that there was a partial failure of consideration.” He asks that the judgment be reduced in an amount equal to the value of the repairs which were promised and not made, by the value of the undelivered trade fixtures and by the difference between the actual value of the tavern and its represented value.

Appellant and respondent were the principal witnesses in their own behalf. Their testimony was quite contradictory in several respects. The essence of appellant’s testimony was that he had known respondent since the 1920’s. Over a period of at least five weeks he and respondent discussed the sale of the property, and during that time he was often in the tavern. He stated respondent represented the place as being one where you could gamble and have a bar and make $250.00 or $300.00 a week; at another point appellant stated respondent represented the place as making $200.00 a week; that their oral agreement was that respondent was to give him $500.00 cash and the tavern building and respondent was to “repair this building, put it up first-class for me, and put water in it”, plaster the building and when this was done and the deal was closed was to provide and place in the building certain fixtures then stored in Muskogee, Oklahoma.

In his testimony appellant conceded that respondent gave him a warranty deed to the premises, that water had been put in the building and a tap connected and that the roof had been repaired. He claimed respondent had not given him a key to the premises and had failed to deliver the fixtures. Appellant admitted that after the transaction he had mortgaged some of the trade fixtures to a bank to secure a loan from the bank. He left Oklahoma shortly after the transaction and had not returned to Oklahoma since August, 1959. “Last fall” (1960) he told respondent he was repudiating the agreement and offered to return the $500.00 and the deed and abstract.

Without objection appellant was asked if he had any convictions of crime to which he replied that he had been convicted in the Federal Court of kidnapping; in the Missouri courts for rape; for carrying concealed weapons, for petit larceny and for driving a vehicle while intoxicated. He was asked, “Q. To refresh your memory, were you not also tried or pleaded guilty to felonious assault? A. No. (Mr. Billings) We object to that, if the Court please, because he’s exhausted. The witness : You ought to object to something.”

The essence of respondent’s testimony was that appellant purchased from him for ■$4,500.00 and a $500.00 cash loan the tavern and certain named fixtures and that as a part of the deal respondent was to put running water in the tavern and fix the tavern roof. He stated he had done these things. He denied he had agreed to do any plastering or other repairing of the building. He testified he told appellant he was getting $80.00 a month out of the building and that this was the fact. He stated that for several years he had been renting the premises to a third party and had no knowledge of any gambling on the premises. He disagreed to a minor extent as to just what trade fixtures were in the deal and stated that he had endeavored to deliver them to appellant to whom he had given the key to the premises but that appellant had prevented delivery of them to the tavern by refusing him admittance to it. He stated the fixtures were available to appellant at the same location and in the same condition as at the time the deal was made, and that appellant had mortgaged some of these fixtures to a third party. Respondent testified the market value of the building was from $4,500.00 to $5,500.00. Respondent’s witness Brown testified as an expert that the value of the lot and tavern thereon was between four and five thousand dollars. There was no other testimony as to its value.

As presented, the sole question before this court is whether the trial court ■erred in failing to find on this evidence ■a partial failure of consideration and to give judgment accordingly. On such issue our duty is to review the law and the evidence as in suits of an equitable nature. The judgment is not to be set aside unless ■clearly erroneous, and due regard must be .given to the trial court to judge the credibility of the witnesses. Civil Rule 73.01(d), ■'V.A.M.R.

The defense of failure, or partial failure, of consideration is an affirmative ■defense. Civil Rule 55.10. As stated in O’Day v. Annex Realty Co., Mo.Sup., 236 S.W. 22, 24, “It is settled law in this state that a partial failure of consideration of a bill of exchange or promissory note, where the amount of the consideration failing is liquidated or can be definitely calculated, is a defense pro tanto to an action on, or claim under, the instrument”. The burden of proof on the issue of partial failure of consideration is on the party asserting it— in this instance, appellant.

This brings us to a consideration of the evidence which appellant asserts establishes partial failure of consideration. The rule is that where the trial court was not requested to make a statement of the grounds for his decision all fact issues on which no specific findings are made shall be deemed to have been found in accordance with the result reached. Civil Rule 73.01 (d); Mayo v. Lasater, Mo.App., 312 S.W.2d 601. Appellant claims part of the consideration for the note was that respondent agreed to install running water in the building, plaster the building and fix the roof. Appellant’s own testimony is that respondent did fix the roof and put a faucet of running water in the building. Absent a more definite agreement on these items by the parties, we find in accordance with the result reached by the trial court that this part of the promise was fulfilled.

Respondent denied that he promised to plaster the building. Appellant stated he did so promise. On this conflict of oral testimony involving the credibility of the parties we give deference to the result reached by the trial judge who saw and heard the witness and who is thereby in a better position to resolve this factual dispute. There is also a conflict of oral testimony as to whether respondent misstated the rental income, or profit, of the business. Assuming, without deciding, that such testimony bears on the question of partial failure of consideration we again defer to the trial court’s resolution of that fact issue.

The final contention of appellant is .that the trade fixtures were not delivered to -the tavern building and that this resulted ■in a partial failure of consideration. Appellant, himself, testified the trade fixtures were not to be moved into the building until the work on the building was completed and the transaction closed. Appellant has been out of the state since August, 1959 — shortly .after the closing of the transaction. Respondent testified the keys to the building had been turned over to appellant and that 'he, respondent, had gone to West Memphis unavailingly to get appellant to go to Oklahoma and open the building so the tráde fixtures could be moved in. It is well established and fundamental that he who -prevents a thing from being done shall not be permitted to avail himself of the ■nonperformance which he himself has occasioned. See, Spitcaufsky v. Guignon Real Estate, Mo.Sup., 321 S.W.2d 481; 17 C.J.S. Contracts § 468, page 966. The trade fixtures, according to respondent, are still available to appellant who has treated them as his by mortgaging a substantial ■portion of them to a third party. Under the related circumstances we find no merit in appellant’s final contention.

It is unnecessary to consider other reasons advanced by,, respondent for af-firmance of the judgment. Upon our own review of the law and the evidence we think it is abundantly clear that the judgment rendered by the trial court was sound and was for the right party. Respondent filed a motion to dismiss the appeal for failure of appellant’s brief to comply with ■certain of the civil rules. That motion was taken with the case. In the exercise of our ■discretion, we overrule it.

The judgment is affirmed.

STONE, P. J., and McDOWELL, J., ■ concur.

RUARK, J., not participating.

      . There was no testimony as to the., value of those trade fixtures. See, Blickhan v. Trans World Airlines, Inc., Mo.App., 305 S.W.2d 743, 747(7).


author: BROADDUS, Judge.

text:
    Robert E. CRIST, Executor of the Estate of James W. Nesbit, deceased, Respondent, v. Anna Ottolene NESBIT, Respondent, Harry Combs Saunders and Thelma Saunders, Appellants.
    No. 23424.

    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1961.

      Carstarphen &' Harvey, Hannibal, for appellants.
    Don C. Carter, Sturgeon, for respondent Anna Ottolene Nesbit.
   BROADDUS, Judge.

This action originated in the Circuit Court of Randolph County, at Moberly, by petition filed therein by Robert E. Crist, Executor of the Estate of James W. Nesbit, deceased, in which petition the executor sought to have the Last Will and Testament of said James W. Nesbit construed, and to declare the rights of the surviving spouse, Anna Ottolene Nesbit, and Harry Combs Saunders and Thelma Saunders, husband and wife, under said Will, and to order and direct to whom the executor should make distribution in said estate. The surviving spouse and beneficiaries under the Will were made parties, as was the son of the deceased, James Kenneth Nesbit, who was disinherited. Separate answer of Anna Ottolene Nesbit, surviving spouse, and separate answer of the two beneficiaries, Harry Combs Saunders and Thelma Saunders, were duly filed..

The trial was had on December 21, 1960, and the case taken under advisement by the Court, and on February 7, 1961, a memorandum opinion was filed with the Clerk, and judgment rendered as follows:

“It is hereby ordered, adjudged and decreed by the Court that plaintiff, Robert E. Crist, Executor of the Estate of James W. Nesbit, deceased, shall make distribution of said estate after payment of all just debts and funeral expenses of deceased, in the order, as follows:
“First: To defendant, Anna Otto-lene Nesbit, the value of the exempt personal property as specified in Sec. 474.250, Mo. Statutes, to be computed as the cash value received from prior sale by Executor of this specified prop- ■ erty.
“Second : To defendant, Anna Otto-lene Nesbit, the value of one year’s maintenance as specified in 474.260, Mo. Statutes, which shall be allowed by the Probate Court of Randolph County, Missouri.
“Third: To defendant, James Kenneth Nesbit, the sum of one dollar.
“Fourth: To defendant Anna Otto-lene Nesbit, one-half of the remainder of the estate.
“Fifth: To defendants Harry Combs Saunders and Thelma Saunders, as joint tenants, the remaining assets in the estate.
“It is further ordered that a certified copy of this judgment shall be delivered to the Probate Court of Randolph County, Missouri. * * * ”

Defendants, Harry Combs Saunders and Thelma Saunders, have appealed from said judgment.

The facts are not in dispute. James W. Nesbit died on April 28, 1959. He executed a will on April 20, 1959. Seven days later he executed a new will. The language of the two wills is identical with this exception; the new will named Robert E. Crist as executor instead of Sam Friedman. The will dated April 27, 1959, was executed at Shelbina, Missouri, at the office of Mr. Crist somewhere around 9:00 or 10:00 o’clock in the forenoon. It contains five clauses. The first directs that debts and funeral expenses be paid; the fifth names the executor. The remaining clauses read as follows:

“Second: I give, devise and bequeath to my wife, Anna Ottolene Nes-bit, such part of my estate as under the laws of the State of Missouri my. said wife would be entitled, and no more.
“Third: I give, devise and bequeath to my son, James Kenneth Nesbit, the sum of One ($1.00) Dollar.
“Fourth: All the rest, remaining and residue of my property, wherever located and of whatever nature, I give, devise and bequeath to Harry Combs Saunders and Thelma Saunders, as joint tenants.”

On the afternoon of the day the last Will was executed (April 27, 1959) James W. Nesbit and his then wife, Anna Ottolene Nesbit, entered into a property settlement agreement which recited that certain differences have arisen between the parties, and “Anna Ottolene Nesbit is contemplating filing a petition for divorce. * * * ” The agreement was entered into at Moberly. Mr. Nesbit was represented by his attorney, Sam Friedman, and Mrs. Nesbit by her attorney, Don Carter. Immediately following the execution of the property settlement contract Mr. Carter prepared a petition for divorce on behalf of Mrs. Nesbit and mailed it to the Clerk of the Circuit Court of Moberly, where it arrived on the morning of April 29. Mr. Carter, learning that morning that Mr. Nesbit had died, immediately called the Clerk and requested him not to open the envelope containing the divorce petition, but to return it to him in another envelope, which the Clerk did, and which was exhibited by Mr. Carter at the trial, envelope being unopened. The parties stipulated “that said property settlement as written, was fully carried out by the parties thereto.”

Mr. Crist, the Executor, testified that he wrote the first Will on April 20, 1959, in which Sam Friedman, a lawyer at Hannibal, was nominated as executor, and he also wrote the one here involved on April 27, 1959. Mr. Crist also testified that while preparing the last Will, the testator said he didn’t want his wife to have any of his property. A letter, Exhibit 2, found in the effects of the decedent’s home, right after the discovery of his dead body, was also offered in evidence. At the top of this letter are the words: “Tuesday Morning, 8:00 A.M.” The letter is addressed; “Dear Pete.” It contained the statement: “Nothing in the house belongs to her, and I hope you will see it carried out that way. It should net you between six and seven thousand dollars. * * * The property will be clear and will belong to you as provided in the Will.” The evidence disclosed that defendant Harry Combs Saunders is known by the family and generally as “Pete.” Thelma Saunders, his wife, is a sister of Anna Ottolene Nesbit. .

The Will was duly admitted to probate in the Probate Court of Randolph County on May 1, 1959. Thus the time has run in which it could be contested. The files of the Probate Court were offered to show that Mrs..Nesbit had timely filed her petition for exempt property and for a year’s allowance, which has been held in abeyance awaiting the outcome of this action. All of the assets of the estate have been converted to cash and there is approximately $9000 in the hands of the Executor for distribution.

This case presents two questions, viz.:

I. Did the Will of James W. Nesbit, deceased, give his surviving spouse, Anna Ottolene, anything. If so, what did it give her?

II. Does the property settlement entered into between them on April 27, 1959, estop the surviving spouse from claiming under the Will?

Appellants contend that the Will gave the surviving spouse, Anna Ottolene Nesbit, only the right to elect to take contrary to the Will, and that she is estopped to take under the Will, by reason of the property settlement which she made with her husband, the day before his death.

Under the provisions of Section 474.160, V.A.M.S., a surviving spouse has the right and privilege to elect to take against the Will of her deceased spouse, but Mrs. Nes-bit did not make any such election. And since she did not make any such election to take against the Will, Section 474.230, V.A.M.S., definitely sets out what she is entitled to in the estate, viz.:

“When a surviving spouse makes no election to take against the will, he shall receive the benefit of all provisions in his favor in the will, if any * * *. By taking under the will or consenting thereto, he does not thereby waive his right to a homestead allowance, to exempt property or to an allowance under section 474.260 unless it clearly appears from the will that the provision therein made for him was intended to be in lieu of such rights or any of them.”

Under the provisions of Section 470.-010, V.A.M.S., since there was a son by said marriage, Mrs. Nesbit gets one-half of the estate. And in addition she gets exempt property, Section 474.250, V.A.M.S. and a year’s provisions, as provided in Section 474.260, V.A.M.S. And she gets all of those things because the testator, James W. Nesbit, says he wants his wife to have, “such part of my estate as under the laws of the State of Missouri, my said wife would be entitléd to.”

Did the testator intend to give his wife, Anna any of his estate ? If he did not, what does he mean in clause Fourth of his Will, when he says:

“All of the rest, remainder and residue of my property, wherever located and of whatever nature, I give, devise and bequeath to Harry Combs Saunders and Thelma Saunders, as joint tenants.”

That can only be construed to mean, that after the wife had .received the property given to her in the Third clause of the Will, he wants the remainder to go to the Saunders Appellants.

The Will is short and there is no ambiguity whatsoever in it. It is the established rule that the court must determine the intention of the testator from the four comers of the Will, as expressed in the Will, and not from the testimony of the scrivener, that the testator said he didn’t want his wife to have any of his estate. Nor from letters written by the testator, subsequent to making the Will, which are contrary to the expressed intention written in the Will. In re Sidebottom’s Estate, 327 S.W.2d 270, 278 (Mo.Sup.); Gehring v. Henry, 332 S.W.2d 873 (Mo.Sup.). And the testator must be presumed to have intended the legal effect of language used in his Will, since he is presumed to know the law. Thomas v. Higginbotham, 318 S.W.2d 234 (Mo.Sup.). And since the Will was written by a lawyer, the words used have a legal effect and meaning. Littleton v. General American Ins. Co., 136 S.W.2d 433 (Mo.App.).

Does the property settlement agreement estop Mrs. Nesbit from claiming anything under the Will, as appellants contend. This contention was disposed of by the learned trial judge in the following language:

“That the Will in granting to defendant, Anna Ottolene Nesbit, ‘such part of my estate as under the laws of the State of Missouri my said wife would be entitled to, and no more’, creates certain rights in defendant Anna Ottolene Nesbit in the estate of James W. Nesbit and the terms and provisions of the property settlement cannot revoke this portion of the Will or alter or change in any way the rights granted freely and voluntarily by the testator to his wife.” Citing Robertson v. Jones, 345 Mo. 828, 136 S.W.2d 278.

In our opinion the Robertson case, supra, absolutely controls the decision in this case, because in that case there was not only a property settlement, but also a divorce, but since the Testator had left a Will giving his wife certain rights, the Supreme Court held:

“The fact that the testator and wife were divorced and that he made a property settlement with her shortly before he died, without making a new will, would not operate as a ‘revocation of will’ in which he left half of his property to his ‘beloved wife.’ ”

Section 474.400 V.A.M.S., states how a Will can be revoked, viz.: “by a subsequent will in writing, or by burning, canceling, tearing or obliterating the same, by the testator.” This has been the law for many years in this State.

In 1955, the Legislature, evidently with the intent to change the decision in the Robertson case, supra, enacted Section 474.420, which states that if after making a Will, the testator is divorced, all provisions in the Will in favor of the testator’s spouse so divorced are thereby revoked, the effect of the same being the same as if the divorced spouse had died at the time of the divorce.

But since there is no divorce in the case at bar, and Anna Ottolene Nesbit is the surviving spouse of James W. Nesbit, deceased, this Statute does not affect the decision in the Robertson case, and it is the law in this case, and Mrs. Nesbit takes under the Will and her rights under the Will are not affected by the property settlement which she and her husband entered into on April 27, 1959.

Appellants in their brief have cited and quoted from many decisions. The plea of estoppel made in those cases was sustained, but in none of them was a will involved.

The judgment is affirmed.

All concur.