text:
    Richard S. DUNCAN, Lily Duncan Cox, Donald Richard Duncan, Jean Martha Duncan, Barbara Duncan Kaufman and Verna K. Duncan, Appellants, v. ACADEMY OF THE SISTERS OF THE SACRED HEART AT ST. JOSEPH, MISSOURI, a Corporation, Respondent.
    No. 48525.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.

      Dale, Potter & Flynn, by Whitney W. Potter, St. Joseph, for appellants.
    Morton & Morton, by W. M. Morton, St. Joseph, for respondent.
   COIL, Commissioner.

Appellants brought an action in the trial court for a judgment declaring that certain real estate in the City of St. Joseph had reverted or should revert to them by reason of a deed provision and, in the alternative, praying for injunctive relief. The trial court sustained defendant’s motion to dismiss and plaintiffs have appealed from the ensuing judgment.

Plaintiffs averred that they were all the living bodily heirs of Frederick and Jane Smith, who were the grantors in a deed dated January 20, 1854, which, for a consideration of $630, conveyed three acres and 26 poles of land to Ann Shannon, a Catholic nun, upon this condition: “Provided however and these presents are upon this express condition that she the said Ann Shannon shall hold said land for the sole use and benefit of the order of the sisters of the .Sacred Heart of the City of St. Joseph in the County and State aforesaid and for no other use or purpose whatever.” Plaintiffs alleged further that Ann Shannon had purchased the property as trustee for the defendant, respondent here, The Academy of the Sisters of the Sacred Heart of St. Joseph, Missouri, a corporation, which became the owner of said property and that Ann Shannon was one of the incorporators; that thereafter defendant constructed a school for girls known as the Convent of the Sacred Heart on the land in question and had continuously to date operated such school thereon; that at the time of the filing of the petition defendant was negotiating with purchasers or lessees for the purpose of selling or leasing skid premises, and that def endant had consummated plans to build a new girls school at another location and intended “in the meantime to turn the aforesaid premises over to another Order of Catholic Sisters, and has threatened to do, or has done, the above and other acts in violation of said express condition in the aforesaid deed * *

The prayer of the petition was for a judgment declaring that the provision in the deed constituted “a conditional limitation or a conveyance on condition subsequent, creating a determinable fee simple estate that would cause a reversion of said property to plaintiffs herein, who constitute all of the heirs of Frederick W. and Jane Smith,” and that the court hold either that the property had reverted to plaintiffs by operation of law or order that said property revert to plaintiffs, or if the court found that the deed provision constituted a restrictive covenant running with the land to permanently enjoin defendant from using the premises in question in any way other than that authorized by the deed, and that if, in the meantime, there had been a lease or sale or any other use of the premises in violation of the terms of the restriction to order a cancellation of any such instrument and place the premises in the same condition as prior to the act constituting any such violation.

Defendant’s motion to dismiss was on the ground that the petition failed to state a claim upon which relief could be granted for the ascribed reasons that the deed provision in question did not convey a fee simple determinable and did not constitute a restrictive covenant running with the land and that, in any event, the covenant, whatever its nature, had run beyond a reasonable time and was no longer of any binding effect and that plaintiffs, by reason of the provision, had no right, title, or interest in the real estate and no right to maintain this action; and, on the further ground that the issues presented by plaintiffs’ petition theretofore had been fully and finally adjudicated adversely to plaintiffs in a quiet title suit determined in 1911.

As we understand, it is plaintiffs’ position on this appeal that the deed in question conveyed a determinable fee or an estate upon condition subsequent, but, if not, the deed provision in question constituted a restrictive covenant running with the land which entitled plaintiffs to the injunctive relief sought. For the reasons which follow, we are of the view that the trial court correctly dismissed plaintiffs’ action.

In the banc case of Chouteau v. City of St. Louis, 331 Mo. 781, 55 S.W.2d 299, 300, the court had before it for construction a deed whereby Messrs. Lucas and Chouteau conveyed land to three commissioners who had been appointed by the Missouri legislature to select a proper site for a courthouse in St. Louis and to receive proposals for the donation of a block of land therefor. The deed in pertinent part was: “Now Therefore Know all men by these presents that we Auguste Chouteau & Therese Cerre Chouteau his wife and John B. C. Lucas all of the City of St. Louis and State of Missouri do by these presents give, grant, Transfer Quit Claim and forever Set over to John C. Sullivan, Justus Post and Joseph V. Gamier the present Justices of the County Court of the County of St. Louis and to their Successors in office forever in Trust and for the use of the County of St. Louis all our Right, Title, Claim, interest, and estate in and to the above described Square of ground Situated and bounded as above Recited with all and Singular the privileges and appurtenances to the Same in any wise appertaining, but upon this Condition nevertheless that the Said piece of ground by these presents given and Conveyed shall be used and appropriated ‘forever as the Seite on which the Court house of the County of St. Louis Shall be erected.” 55 S.W.2d 300.

The questions before the court were whether that deed conveyed either a determinable fee or an estate upon condition subsequent. In determining that that deed did not convey a determinable fee the court said (55 S.W.2d 301 [3] [4]): “In a determinable estate the condition is incorporated into and forms part of the limitation (grant). Goodeve: Modern Law of Real Property (3d Ed.) p. 180. The grant in such a case is not upon a condition subsequent, and no re-entry is necessary; but by the terms of the grant the estate is to continue until the happening of some event. And upon the happening of said event, the estate will cease and determine by its own limitation. The proper words for the creation of such an estate are, ‘until,’ ‘during,’ ‘so long as,’ and the like. Thompson on Real Property, § 2105, pp. 170, 171. Challis: Real Property, 1885, p. 206.

“ * * * ‘the deed under consideration uses none of these words, nor does it use any other expression indicating an intention to cut the title to a base or determinable fee, nor is there any clause in the deed providing for a reverter. The conveyance of “all of their right, title, claim, interest and estate”, by the grantors directly negatives the idea of a reverter. The grant was forever, and not “so long as”, “while”, “during” or “until.” ’

“Plaintiff argues that the words of condition following the habendum clause of the deed is an expression indicating an intention to convey a determinable fee. We do not think so. The condition follows: ‘ * * * But upon this Condition nevertheless that the Said piece of ground by these presents given and Conveyed shall be used and appropriated “forever” as the Seite on which the Court house of the County of St. Louis shall be erected.’ The words ‘upon condition’ may be used to form a part of a limitation (grant) and thereby convey a determinable fee. But in this. deed said words introduced a new clause. 3 Thompson, Real Prop., § 1966. They were superadded to the limitation of the estate. Goodeve: Modern Law of Real Property (3d Ed.) p. 180; 1 Tiffany: Real Prop. (2d Ed.) § 90. It follows that the deed did not convey a determinable fee.”

The foregoing language is applicable to and decisive of plaintiffs’ contention in the present case that the deed in question conveyed a determinable fee, for, as in the Chouteau case, the present deed used no words considered proper for the creation of such an estate, such as “until, during, so long as,” or the like; and, as in the Chouteau case, there was no clause in the present deed providing for a reverter; and, as in the Chouteau case, the words of condition in the present deed formed no part of the grant but, as in the Chouteau case, introduced a new clause and were superadded to the limitation of the estate. See also Holekamp Lumber Co. v. State Highway Commission, Mo., 173 S.W.2d 938, 943 [8, 9], and Fuchs v. Reorganized School Dist. No. 2, Gasconade County, Mo., 251 S.W.2d 677, 678.

We hold that the deed in question did not convey a determinable fee.

The court en banc, in the Chouteau case, supra, in holding that the deed there did not convey an estate upon condition subsequent, pointed out that the distinctive characteristic of such an estate is the existence of a provision for an entry upon breach of the condition stated and the consequent necessity for a provision in the deed for re-entry, either express or implied, upon the happening of the event. The court then pointed out that there was no express provision for a re-entry in the Chouteau deed and, concerning the circumstances under which a condition subsequent will be implied, said (55 S.W.2d 301): “In Haydon v. St. Louis & S. E. Railroad Co., 222 Mo. 126, loc. cit. 139, 121 S.W. 15, 18, quoting in part from Studdard v. Wells, 120 Mo. 25, 25 S.W. 201, we said:

“ ‘ * * * It is a familiar rule often asserted in the books that conditions subsequent are not favored in the law, because they have the effect in case of breach to defeat vested estates; and, when relied upon to work a forfeiture, they must be created in express terms or by clear implication. 2 Wash, on Real Prop. (5th Ed.) 7; Morrill v. [Wabash, St. L. & P.] Railroad, 96 Mo. 174, 9 S.W. 657. And courts will construe clauses in deeds as covenants rather than conditions, if they can reasonably do so. 2 Wash, on Real Prop. (5th Ed.) 4. It is also true that the question whether a clause in a deed is a condition or a covenant is one of intent to be gathered from the whole instrument by following out the object and spirit of the deed or contract. [City of] St. Louis v. Wiggins Ferry Company, 88 Mo. 615, 618. * * * ”
“ ‘In addition to the general principles outlined above, we may add that it is familiar doctrine that forfeitures (putting it with mildness) are not favored in equity, and that (while not controlling) it is not entirely without significance that there is no express provision making the subsequent standing of cars on the switch a condition subsequent, or a mutual dependent covenant, nor is there shown to be any clause of reverter in the deed, and we are left to an interpretation of the contract by the good sense of the thing in the light of its subject-matter and language used.’

“And in Catron v. Scarritt Collegiate Institute, 264 Mo. 713, loc. cit. 723, 175 S.W. 571, 572, we also said:

“ ‘While a condition subsequent may be inserted in a conveyance of lands in fee without using express terms of reverter upon the breach of such condition, if the deed in its entirety and the circumstances attending its execution demonstrate that the object of the grantors was to cause a reversion of the estate upon the subsequent happening of a lawful condition, yet no such conclusion will be drawn, if it may be avoided by any other reasonable construction of the language of the deed. This is the settled policy of the law, the reason of which is that estates once vested in fee ought not be uprooted, except upon proof of the happening of a lawful condition attached to the continuance of the estate by the terms of the deed, and further proof that it was the intention of the grantor in making the conveyance that it should revert when this condition ceased to exist.’

“To the same effect, German, etc., Church [of Holy Ghost] v. Schreiber et al., 277 Mo. 113, loc. cit. 127, 209 S.W. 914.”

In the present case, as in the Chouteau case, there was no express provision for re-entry and there was no provision for a forfeiture from which a right of re-entry could be implied. Nor does any fact or circumstance averred in the petition support a conclusion that grantors intended that the failure of defendant to continue forever to operate a school on the land in question would work a forfeiture and cause a reversion of the estate to heirs of the grantors. And in considering whether the parties intended the deed provision as a condition subsequent, we point out that the conveyance in question did not constitute a gift of land as in the Chouteau case, but rather was a sale of land for a recited consideration of $630 for three acres and 26 poles of land. While there is no evidence as to the value of the land in question at the time of the conveyance, and while we may not take judicial notice of any particular value, we can and do take judicial notice of the fact that $630 for a little more than three acres of land in the City of St. Joseph in 1854 (the city’s charter was granted in 1851) was not a purely nominal consideration.

In Holelcamp Lumber Co. v. State Highway Commission, supra, plaintiff alleged that he had donated to the defendant Highway Commission a 10-foot strip of land along the entire frontage of plaintiff’s property “upon the consideration and condition that said strip of land would be used as a part of said highway for highway purposes at the then existing grade of said highway and according to the then existing plans of the defendant for said Highway 30 abutting plaintiff’s said property.” 173 S.W.2d 939. Plaintiff contended that inasmuch as the highway department had failed to use the ten feet to develop the road in accordance with the plans existing at the time of the conveyance but had changed the grade of the highway and did not use the ten feet as provided, the strip reverted to the plaintiff free of any burden of user in the highway commission. This court, in deciding that the clause relied upon by plaintiff did not create an estate or easement on condition subsequent, said (173 S.W.2d 942 [5-7]): ‘‘The question whether a clause in a deed (or contract) is a condition subsequent or a covenant is one of intent to be gathered from the whole instrument by following out the object and the spirit of the deed or contract. City of St. Louis v. Wiggins Ferry Co., 88 Mo. 615; Haydon v. St. Louis & S. F. R. Co., 222 Mo. 126, 121 S. W. 15. ‘* * * conditions subsequent are not favored in law, and are construed strictly, because they tend to destroy estates. * * * When relied on to work a forfeiture, they must be created in express terms or by clear implication. * * ’ Morrill v. Wabash St. L. & P. Ry. Co., 96 Mo. 174, 9 S.W. 657, 659. This is the uni- • versal rule. University City v. Chicago R. I. & P. R. Co., supra [347 Mo. 814, 149 S.W.2d 321]; Haydon v. St. Louis & S. F. R. Co., supra; Catron v. Scarritt Collegiate Institute, 264 Mo. 713, 175 S.W. 571; German Evangelical [etc.], Church [of Holy Ghost] v. Schreiber, 277 Mo. 113, 209 S.W. 914; Chouteau v. City of St. Louis, 331 Mo. 781, 55 S.W.2d 299; Bagby et al. v. Missouri-Kansas-Texas R. Co., [351] Mo. [79], 171 S.W.2d 673. Plaintiff has not alleged that the grant contained express terms that a breach of the condition should work a forfeiture, or any provision for a reverter of the fee (or of the use) upon the breach of the condition, or any provision, we believe, from which an intention that there should be a forfeiture may be clearly implied.”

In the present case there was no express provision for re-entry, and it may not be clearly implied that the parties to the deed intended, in the event defendant found it desirable to move its school after more than 100 years and lease or sell the present site or permit another religious body to use its property, to cause defendant to forfeit its land and to cause the fee tO' revert to heirs of the 1854 grantors.

Looking for “the good sense of the thing in the light of its subject-matter and language used,” we are of the opinion that the deed in question did not convey an estate upon condition subsequent.

For the purpose of determining whether plaintiffs are entitled to injunctive relief, we shall assume, as plaintiffs contend, that the condition in the deed constituted a restrictive covenant which ran with the land and that under proper circumstances equity would afford injunctive relief to prevent a violation of that covenant. Making those assumptions, the insurmountable difficulty with plaintiffs’ position is that the averments of their petition show that they base their right to injunc-tive relief solely upon the proposition that they are heirs of the original grantors; they do not aver or contend that they are the owners of or have any interest in any estate which was or might be benefited by the continued enforcement of the restrictive covenant or, conversely, that they have any interest in any estate which might be damaged or adversely affected by the averred violations or threatened violations of the restrictive covenant.

We point out that we have heretofore held that plaintiffs, as the sole heirs of the original grantors, have no right to a re-vesting of title in them, i. e., we have held that the deed did not convey a determinable fee or- an estate upon condition subsequent. Consequently, if plaintiffs are entitled to injunctive relief it must be because some interest they own in some estate will be adversely affected by the violations or the threatened violations averred in their petition. Not only do plaintiffs fail to allege any such interest but their averments demonstrate that they claim solely by virtue of their heirship and thus they are not entitled to injunctive relief. Toothaker v. Pleasant, 315 Mo. 1239, 288 S.W. 38, 42-48; Coughlin v. Barker, 46 Mo.App. 54.

Furthermore, the granting of injunctive relief to enforce the provisions of a restrictive covenant, like the granting of relief by specific performance, is discretionary and such relief does not follow as a matter of right. It will not be granted where to do so would be inequitable. 43 C.J.S., Injunctions, § 87 b (4) (a) pp. 583, 584. Thus, even if we should assume that plaintiffs, though not averred or relied upon, own real estate in the vicinity of or contiguous to the real estate in question or might have some other interest in some estate that could be adversely affected by the establishment of a different school on the premises or by the sale or lease of the premises for some lawful purpose other than the operation of a school we have no hesitation in holding that it would be inequitable to enforce a restriction like the one in question, which, even under any construction of it, had been rigidly observed for at least 106 years. This restriction was not expressly limited as to time, and taking into account its nature, it has endured beyond a reasonable time. It has been said that where “the time during which a restrictive covenant is to endure has not been expressly limited by the parties, it should be implied that some limitation was intended and that it was such as the nature of the case would indicate as reasonable.” Gardner v. Maffitt, 335 Mo. 959, 74 S.W.2d 604, 607 [4-6].

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


source: Caselaw Access Project

author: SPERRY, Commissioner.

license: Public Domain

text:
    Dr. J. M. SAEGER et al., Plaintiffs-Appellants, v. LAKELAND DEVELOPMENT COMPANY, Inc., a Corporation, Defendant-Respondent.
    No. 23449.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.
    J. W. Grossenheider, Lebanon, for appellants.
    Keyes, Bushman & Hearne, Russell T. Keyes and John L. Hearne, Jefferson City, for respondent.
   SPERRY, Commissioner.

This appeal was originally to the Supreme Court and was transferred to us because of a lack of jurisdiction in that Court.

This suit is by eight plaintiffs, whose names and interests are stated in separate counts, against defendant, on the theory of money had and received; and plaintiffs seek a judgment impressing the real estate owned by defendant and described in the petition with a lien on behalf of each plaintiff, in such amount as each of said plaintiffs claim, and for foreclosure. The Court sustained defendant’s motion to dismiss the petition and plaintiffs appeal.

In the first pages of the petition plaintiffs pray to be permitted to join in one action, in separate counts, “as provided in the Missouri Rules of Civil Procedure, section 52.-•05 [V.A.M.R.]”.

It is alleged that, prior to September 3, 1955, one Leon Kane acted as a promoter •of a project called “Chiropractic City”; that he solicited and received money from the plaintiffs for the purpose of forming "“Chiropractic City”; that Kane told plaintiffs that they could select acreage in the tract of land described in the petition, in return for the money paid by the respective plaintiff; that Kane was the owner, or about to become the owner of the land described in the petition; that, by contract dated September 3, 1955, between Kane and defendant, referred to by each plaintiff in one of the eight counts in the petition, Kane transferred to defendant all of the land mentioned in the petition and designed to be used in establishing Chiropractic City, And all of his obligations to plaintiffs arising out of Kane’s promotion of the project.

It is alleged that the claims of each of the ■eight plaintiffs herein, as stated by him oilier in a separate count of the petition, arise out of the same series of transactions, the promotion of Chiropractic City by Kane .and his transfer of the land, together with his obligations to plaintiffs, by the contract above referred to; that there exists questions of law or fact to be determined, common to all plaintiffs, including the legal effect of said contract, and the equitable lien that each plaintiff seeks to have impressed .on the land mentioned.

In count one, Dr. J. M. Saeger alleged that on July 5, 1952, he gave Kane $300, for plaintiff’s use; that Kane was then owner, or about to become owner of certain described tracts of land located in Miller County, Missouri, totalling more than 1,600 acres; that one acre thereof was to be subsequently conveyed to plaintiff; that, on September 3, 1955, Kane transferred all of the land to defendant, together with all of his obligations to plaintiff and other persons, by contract dated on said date; that he, on July 1, 1953, Kane having failed to transfer any land to him, demanded that Kane return his $300, which Kane refused to do; that plaintiff’s $300 was used by Kane to purchase or develop the real estate of which defendant is now the owner; that plaintiff has never been repaid his $300.

He prayed for judgment of $300, with interest from July 1, 1953; that the real estate be impressed with an equitable lien to that extent; for foreclosure thereof; and for further relief as to the Court might seem proper.

Each of the remaining seven plaintiffs herein set out their respective claims as follows ; count 2, Dr. Hazel M. Mabis; count 3, Dr. Theodore R. Lilyhorn; count 4, Mrs. Edith Woods; count 5, Dr. W. W. Breit-haupt; count 6, Dr. G. C. Donohoo; count 7, Dr. R. T. Krygier; count 8, Dr. H. H. Prior. The allegations contained in these seven counts are quite similar to those contained in count 1, except as to amount of money, date when paid to Kane, etc., and all plaintiffs seek the same relief as that sought by Dr. Saeger.

After a hearing on motions to dismiss “except motions for costs”, the Court found that the petition fails to state a cause of action and that: (a) several separate and independent claims by several separate and independent plaintiffs have been improperly joined; (b) several different claims or alleged causes of action have been improperly united in one petition; (c) several separate and independent plaintiffs have undertaken unlawfully to set out several distinct and separate counts, one cause of action as to each, i. e., that one plaintiff has undertaken to allege a cause of action in one count and each of the others in other counts in the same manner respectively. Defendant’s motion to dismiss the petition as to all parties plaintiff, was sustained and the petition was dismissed.

Plaintiff Saeger stated a good cause of action for money had and received, Newco Land Co. et al. v. Martin et al., 358 Mo. 99, 213 S.W.2d 504, 509, 510-511; and he may have an equitable lien on the property for money due him. Murry et al. v. Central Bank (Kansas City), 226 Mo.App. 400, 40 S.W.2d 721, 723-724. In the Newco decision, 213 S.W.2d page 509, the Court discussed and differentiated the facts from those obtaining in Ford-Davis Manufacturing Company v. Maggee (Mo.App.), 233 S.W. 267, 269, cited and relied on by defendant here. The facts here are similar to those obtaining in the Newco case and unlike those in the Ford-Davis case. The facts here are also unlike those in Twamley v. E. B. Jones Used Car Arena, Inc., Mo. App., 241 S.W.2d 799, also cited by defendant. There, the note received from plaintiff had been assigned by defendant to a third party and was no longer in possession of defendant; it had in its hands no money belonging to plaintiff. In Buckman v. Bankers’ Mortgage Co. (Mo.App.St.Louis), 263 S.W. 1046, 1050, it was held that, where a promoter fraudulently procured money for stock to be issued by a corporation, the corporation was liable in an action for money had and received, for a return of money subscribed, whether or not it knew of the fraud. In the case at bar, it is alleged that Kane transferred to defendant his obligations to plaintiffs by contract. If that allegation be true, defendant had notice of plaintiffs’ claims. See 58 C.J.S. Money Received § 7.

But the Court ruled that these plaintiffs could not legally join in one action. Plaintiffs claim the right to do so by virtue of Rule 52.05, which they pleaded. That rule provides, in part, as follows:

“All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. * * * A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.”

From the petition, considered as a whole, it appears that there are questions of law and fact common to all of the plaintiffs, and that the claims of all plaintiffs arose out of the same transactions or occurrences, or series of transactions or occurrences. Shelton et al. v. Harrison et al., 182 Mo.App. 404, 167 S.W. 634, 636; Brotherhood of Stationary Engineers et al. v. City of St. Louis et al. (Mo.App.St. Louis), 212 S.W. 2d 454, 458; Glidewell et al. v. Hughey et al., Mo. en banc, 314 S.W.2d 749, 752; Hughes v. Renshaw, 314 Mo. 95, 282 S.W. 1014, 1019-1020.

Under the rule, plaintiffs could properly join in this action.

The judgment is reversed and the cause is remanded with directions to reinstate it for trial.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


author: BROADDUS, Judge.

text:
    Lafe INGRAM, Plaintiff-Respondent, v. Roscoe CLEMENS and Anna Clemens, Defendants-Appellants.
    No. 23443.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.
    Robert F. Sevier, Liberty, Virgil Conk-ling, III, Kansas City, for appellants.
    Wilson D. Hill, Richmond, David D. Lodwick, Excelsior Springs, for respondent.
   BROADDUS, Judge.

This is an action for a real estate commission. Plaintiff recovered a verdict and judgment against defendants in the sum of $2,400. Defendants have appealed.

Inasmuch as defendants do not contend that plaintiff did not make a submissible case we need not set forth the evidence in detail. The testimony disclosed that plaintiff Lafe Ingram is a licensed real estate broker having his office in Excelsior Springs; that the defendants Roscoe and Anna Clemens owned a 262 acre farm in Ray County; that defendants early in 1960 listed the farm with plaintiff under an exclusive listing which expired on April 8, 1960; that subsequent to that time the farm was listed with plaintiff under what is termed a general listing in which plaintiff was to receive a 5% commission on the sale of the property; that plaintiff advertised the farm for sale in the Kansas City Star and in another newspaper in Des Moines, Iowa; that he placed signs in the neighborhood of the property stating that the farm was for sale; that one of these signs was placed adjacent to Highway 10 approximately 300 yards from the Clemens home; that this was a large sign and read “Farm for Sale 250 acres more or less, Ingram Real Estate”; that in the latter part of May or the first of June, 1960, Mr. Hiram Jones came to plaintiff’s office; that about a week later plaintiff took Mr. and Mrs. Jones to visit the Cle-venger farm and they passed the Clemens farm on the way back; that when they came to the Clemens farm they stopped at its northwest corner, which is approximately 1600 feet from the improvements, but they could see the top of the barn and some of the farming and pasture ground; that plaintiff told Mr. Jones the price Mr. Clemens wanted per acre; that about June 15th Mr. Clemens came to plaintiff’s office and plaintiff said to him “that if he was selling his farm to Mr. Jones that I had shown the farm to Mr. Jones and I felt entitled to my commission.” On the following June 29th defendants sold the farm to Mr. and Mrs. Jones for the sum of $48,000.

Defendants first contention is that Instruction No. 1 given on behalf of plaintiff is erroneous because it failed to hypothesize facts from which the jury could find that the acts of plaintiff “were the procuring and inducing cause of the alleged sale and fails to require finding by the jury that the acts of the plaintiff were the procuring and inducing cause thereof.”

The Instruction told the jury that if they found from the evidence that defendants listed their 262 acre farm near Excelsior Springs, Missouri, for sale with the plaintiff Lafe Ingram as their agent, and agreed with the plaintiff that if he would find a purchaser therefor, and a sale was made to said purchaser, the defendants Clem-enses would pay to the plaintiff the sum of 5% commission on the sale price received therefor; and if the jury further found from the evidence that plaintiff did find one Hiram Jones and wife Anna L. Jones, and did procure the said Hiram Jones and Anna L. Jones as purchasers of the Clemens’ farm and that the said Hiram Jones and Anna L. Jones did buy the Clemens’ farm the verdict would be for plaintiff.

Jn our opinion the Instruction requires a finding of every fact essential to plaintiff’s recovery. This view finds support in the case of Ross v. Major, 178 Mo.App. 431, 441, 442, 163 S.W. 880, 883, 884, where numerous decisions in support of the holding are cited.

Defendants also contend that Instruction No. 2 given at plaintiff’s request is erroneous. This instruction informed the jury that it was only necessary, in order to recover in this case, for plaintiff to have found or procured the purchaser for the farm, after the same was placed in his hands for sale. It was not necessary for him to have conducted the sale; this may be done by the sellers themselves without the aid or presence of the plaintiff or his salesman.

All through the trial defendants’ counsel made reference to the fact that plaintiff Ingram had not “closed the deal.” Thus it was necessary for the Court to give the instruction in order to explain to the jury that plaintiff need not negotiate the actual terms of the sale, if he actually was the procuring cause. In the Ross case, supra, a similar instruction was approved. And the identical instruction met with approval in the case of Morgan v. Keller, 194 Mo. 663, 673, 92 S.W. 75. If the law were otherwise, the seller could promptly dismiss the realtor, once he learned a prospective buyer had been found or procured through the realtor’s efforts, and preclude the realtor from “closing the deal” and thus save the commission.

Finally defendants contend that Instruction 4 is erroneous. It is not a verdict directing instruction. It is a well settled rule that all instructions must be considered together, and if, taken as a whole, they correctly declare the law, there is no reversible error. Reading this instruction together with the other instructions, especially Nos. 7 and 8 given on behalf of defendants, we fail to see how the jury could have been misled.

The judgment is affirmed.

All concur.


text:
    STATE of Missouri ex rel. DAIRYLAND TRANSPORT CORPORATION, Relator-Appellant, v. PUBLIC SERVICE COMMISSION of State of Missouri, Respondent,
    No. 23442.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.
    Chinn, White & Dickey, Springfield, for appellant.
    Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Gen. Counsel, Jefferson City, for respondent.
    Herman W. Huber, Jefferson City, for intervenor.
   BROADDUS, Judge.

This is an appeal from the judgment of the Circuit Court of Cole County affirming an order of the Public Service Commission which granted to Bill Bilyeu, d/b/a Bilyeu Transport Corporation, a certificate of convenience and necessity to operate an intrastate freight carrier of milk and liquid dairy products.

Respondent filed a motion to dismiss the appeal herein. We overruled that motion on August 4th, and see no sound reason why we should depart from that ruling.

For the purpose of brevity, the parties will be referred to hereafter as follows: Dairyland Transport Corporation as appellant; The Public Service Commission as respondent; and Bill Bilyeu, doing business as Bilyeu Transport, will be called Bilyeu.

Bilyeu, an individual, was the applicant before respondent, seeking a certificate of convenience and necessity or authority, pursuant to Section 390.051 RSMo 1959, V.A.M.S., to operate as a common carrier by motor vehicle, over irregular routes, in intrastate commerce, as follows:

“Between Ozark, Springfield, Lebanon, Mountain Grove, Monett, Cabool, El Do-rado Springs, Aurora, Bolivar, Jefferson City, St. Louis, and the commercial zones of said Cities, on the one hand, and all points in Missouri, on the other hand, in the specialized service of transporting milk and liquid dairy products in bulk in tank vehicles.”

Appellant appeared at the hearing in protest to granting such application.

Bilyeu is a common carrier operating under Certificate of Convenience and Necessity No. T-12,399, issued by respondent, authorizing the transportation of milk and liquid dairy products in bulk, in tank vehi-des, between certain points and areas in Missouri! This application seeks to extend or enlarge Bilyeu’s authority to operate in the State of Missouri.

Bilyeu is a resident of Ozark, Missouri, and has operated pursuant to the aforesaid authority continuously since 1955, and is in compliance with the rules and regulations of respondent. Bilyeu maintains terminal and repair facilities at Ozark, Missouri, and Cedar Rapids, Iowa, holds intrastate authority in Missouri and Iowa, and operates in nineteen to twenty states in interstate commerce, transporting liquid milk, cream and that type of product under exemptions of the Federal Motor Carrier Act, 49 U.S.C.A. § 301 et seq.

The service involves hauling between receiving stations, dairies, creameries, cheese plants, manufacturing and bottling facilities and does not involve farm to market operations. The shipments are volume movements in large quantities, and the service required fluctuates with seasonal factors and the surpluses and shortages in milk production in a given area. The products transported are highly perishable and expedited delivery and a high degree of sanitation is required.

Bilyeu offered evidence of financial fitness and explained that his fleet of equipment had expanded 300 per cent in the year 1959, so that he now owns and operates 25 tractors and 29 stainless steel tank trailers, which are in good operating condition.

The present application was filed as a result of requests for additional service and the need to file for temporary authority to haul occasional shipments and spot loads.

Approximately 28 per cent of Bilyeu’s systemwide operation involves Missouri intrastate service and 16 tractors and 14 trailers are available for intrastate service, and seven additional units are readily available from an affiliated equipment corporation. More mileage is operated in Missouri than any other state and by coordinating interstate and intrastate movements vehicles are available at any point in Missouri at any time, day or night. The instant application will permit better utilization of equipment, reduce operating costs and provide a more flexible operation.

The application was supported by Kraft Foods Co., Adams Dairy, Valley Farm-Dairy, Producers Creamery, Greene County Milk Producers Ass’n., Standard Milk Company and Major Cheese Company.

Kraft Foods Company operates a processing plant at Springfield, Missouri, and has receiving stations at Nevada, Versailles, Eldon, California, Buffalo, Marsh-field, Mountain Grove, Houston, Ava and Wheaton. This company has utilized Bil-yeu’s service to transport milk and some cream and has found the service quite good. Kraft operates some equipment for hauling milk between its facilities, but desires inbound service from any point in Missouri, primarily to Springfield, to obtain surplus-milk. St. Louis and all other receiving points in Missouri are potential sources of supply with limitations as to quality, price and available transportation. Kraft is always capable of handling more milk and at present there is no transport company which can provide the service this company would like to have available. The business is growing and expanding and at present its Springfield plant is one of the largest of its kind in the world. Delay in time of transit affects the quality of the milk thereby making time of essence in transportation. Bilyeu handled several hundred loads-for Kraft during the past year.

Adams Dairy, located at St. Louis and'Blue Springs, Missouri, obtains milk in-bulk from the St. Louis milk shed, Ava, Mountain Grove, and Lebanon, Missouri- and interstate points. It has need for outbound service from St. Louis to- market surplus or reject milk. Adams operates no tank truck equipment and supported this application to obtain radial service to and from St. Louis, Missouri, which would be a convenience and benefit to them. Adams has used the service of Bilyeu on interstate service and from the Missouri points he is authorized to serve and has found the service very good. Adams received over one million pounds of milk from Ava to St. Louis the month previous to the hearing.

Valley Farm Dairy, of St. Louis, Missouri, also supported the application. It utilizes private carriage but has need for supplemental service from a common carrier due to shortages and surpluses of milk or when its equipment is tied up on other hauls. This company desires to have common carrier service available to it on short notice, and has obtained milk from Ozark, Mountain Grove and Lebanon, Missouri, during the past year and from points outstate.

Producers Creamery Company is engaged in marketing milk and has facilities for receiving and processing milk at Springfield, Cabool, Lebanon, Monett and El Dorado Springs, Missouri. Its need for service is between its plants and also from Lebanon, Cabool and Springfield to St. Louis. Last year it moved about 4,000 loads of milk intrastate between its plants. The witness was asked the following questions relative to service it has received and gave the following answers:

“Q. Now, generally, how have you obtained transportation service for that movement of milk? A. From Dairyland Transport Company.
"Q. What has been your experience with respect to the adequacy of their service when called upon ? ' A. Generally good. However, during flush times we have experienced a shortage of equipment which is our main reason for supporting this application.
“Q. You feel that there is need for additional service in this business of transporting liquid milk? A. That’s right.”

Producers operates no over-the-road equipment and is dependent on one carrier (appellant) for service. On cross-examination the witness admitted that he had no records to indicate the number of times that appellant (Dairyland) had a shortage of equipment, but on re-direct stated it is with frequency, at the flush time of the year, and further stated that occasionally the tanks furnished had to be cleaned. Producers would continue to use appellant’s service but desired additional service which it would use if authorized.

Greene County Milk Producers Association, Springfield, Missouri, supported the application. It operates no tank vehicles and is dependent on others for transportation service. Bilyeu has furnished service in the past consistent with his authority and his equipment was readily available. In the past a lack of authorized transportation service has prevented this shipper from accumulating certain milk. Various receiving stations throughout Missouri are potential sources of supply and dairies throughout the State are potential customers for Grade A milk. At present there is no carrier with radial authority to or from Springfield, and such service would be a benefit and convenience to this shipper.

Standard Milk Company, with plants at Bolivar and Aurora, appeared in support of the application. This company has need for service from Aurora to St. Louis, which movement was being handled by Bilyeu under temporary authority at the time of the hearing, between Bolivar and Aurora, and from Mountain Grove to Aurora and Bolivar, and from Lebanon to Aurora and Bolivar. No common carrier service is available to or from Bolivar or Aurora, except interplant service between Bolivar and Aurora, and this shipper has need for additional carrier service.

Major Cheese Company, of Ozark, Missouri, also supported the application. Bil-yeu is authorized to serve Ozark from any point in Missouri and is limited to certain points presently from Ozark. This company markets milk and outbound service as requested would open up markets for over a million pounds of milk per month, and any dairy in the State is a potential customer. This company operates no transportation facilities and is dependent upon carrier service.

Appellant is the only other common carrier of liquid milk in the State of Missouri. It holds authority from respondent to serve between Monett, El Dorado Springs, Lebanon, Cabool and Springfield, and from those points to St. Louis, Kansas City and Cape Girardeau, and between Nixa, Humans ville and Neosho, as shown on Exhibit A. Its main terminal is located at Springfield. It operates tractors and trailers as shown on Exhibit B. All tractors are leased from Erickson Motor Corporation. The traffic of Producers Creamery constitutes the bulk of appellant’s operation. Appellant’s witness admitted that his company had made application to transport milk between all points in Missouri and stated that in his opinion there was need for such service. Appellant admitted that it does not haul for any of the supporting witnesses except Producers Creamery. Appellant holds itself out to serve any shipper within the scope of its authority and maintains that a grant of the instant application would result in a diversion of some traffic from appellant to Bilyeu.

Section 386.270 V.A.M.S. provides that the orders of the Commission are prima facie reasonable and lawful; and Section 386.430, provides that the burden of proof to set aside any order of the Commission shall be upon the party adverse to the Commission to show by clear and satisfactory evidence that the order complained of is unreasonable or unlawful.

In State ex rel. Shepherd, et al. v. Public Service Commission, Mo.App., 142 S.W. 2d 346, 347, this court said:

“Upon appeal to this court on a matter of this character we do not determine the question presented as though we were the Commission. We only determine whether or not the order made by the Commission is reasonable and lawful, in light of the facts and circumstances properly in evidence before it. To determine that the action * * * falling within its discretionary powers, as this does, was unreasonable, we must find that the Commission’s order is arbitrary, capricious, and without reasonable basis; and the burden of proving it so to be is on respondents. State ex rel. Aiton Trans. Co., v. Public Service Commission, 330 Mo. 1, 49 S.W.2d 614, loc. cit. 617.” To the same effect are the cases of State ex rel. Missouri, K. & O. Coach Lines v. Public Service Commission, 238 Mo.App. 317, 179 S.W.2d 132, (Mo.App.) and State ex rel. Transport Delivery Co. v. Burton, 317 S.W.2d 661 (Mo.App.).

In view of the evidence which we have set out in detail we certainly would not be justified in holding that the Commission’s order is arbitrary and capricious. In our opinion the order is supported by competent and substantial evidence and the judgment of the Circuit Court upholding it should be affirmed. It is so ordered.

All concur.


text:
    KANSAS CITY TERMINAL RAILWAY CO., a Corporation, Plaintiff-Respondent, v. KANSAS CITY TRANSIT, INC., a Corporation, Defendant-Appellant, City of Kansas City, Missouri, a Municipal Corporation, Defendant.
    No. 23362.
    Kansas City Court of Appeals. Missouri.
    Oct. 2, 1961.

      Powell C. Groner, Hale Houts, Hogsett, Houts, James, Randall & Hogsett, Kansas City, for appellant.
    Sam D. Parker, William M. Stapleton, Kansas City, for respondent.
   SPERRY, Commissioner.

This is a suit in equity by Kansas City Terminal Railway Co., a Corporation, plaintiff, against Kansas City Transit Co., defendant, and City of Kansas City, hereafter referred to as City, for a declaratory judgment, specific performance, and equitable relief. The pertinent evidence was documentary or by stipulation. Plaintiff prevailed, as against defendant, but City had a money judgment against plaintiff, from which plaintiff has not appealed. Defendant appeals.

Defendant says that there is but a single question involved on this appeal, to wit:

“ * * * whether the obligation imposed by municipal franchises of the parties and a contract made between plaintiff and the predecessor of defendant whereby an operator of street railway cars is required, for the benefit of plaintiff, to participate in the costs incurred by the latter in construction and maintaining public-throughfare viaducts and subways over and under its tracks, is to be expanded so as to apply to the motor bus operation of defendant which now operates no street cars.
“Plaintiff contended below, and the trial court declared, that the obligation as to street cars so imposed was to be so expanded: in other words, that ‘street cars’ and ‘motor buses’ were in legal concept the same.”

That is a fair statement.

Defendant contends that, in law, a “motor bus” is not a “street car” and that, consequently, the obligations imposed upon it by franchises and contract, to pay to plaintiff a share of its costs of construction and maintenance of the viaducts and subways mentioned in applicable ordinances, and in a contract entered into between the parties hereto in 1917 and expressly approved by City, are not now enforceable as against it for the reason that, although it uses the viaducts and subways for passage of its passenger carrying motor buses, it no longer operates “street cars”, or owns or maintains “street railway lines”. The court adopted plaintiff’s theory and held that defendant’s obligation to pay a percentage of the cost of maintenance, as provided for by ordinances, and by contract approved by City, continues to exist because the essential use by defendant of the viaducts and subways is the same now as it was at the time said obligations were entered into, that is, the transportation of passengers. Thus, the issue is clear cut.

Plaintiff’s petition is in two counts, the first count being based on its franchise ordinance No. 2336, sections 6, 7, 8, 9, and 19; and ordinance No. 9701, section 2. The second count is based on a contract entered into between plaintiff and defendant and approved by City, referred to as the 1917 contract by which, it is stated therein, the parties “composed” certain differences that had arisen between them under the ordinances.

So far as this lawsuit is concerned, the effect of the franchise ordinances is to grant to plaintiff the right, for 200 years from 1909, to use and occupy the streets and public ways of City, by its railroad tracks and facilities, conditioned upon plaintiff’s construction and maintenance of viaducts and subways over and under its tracks for use of the public. Plaintiff agreed to those conditions with the provision that before City might pass any ordinance permitting any person or company operating, or proposing to construct or operate, “a street car line or lines over or upon any of the viaducts or approaches provided for in this ordinance to be constructed now or hereafter by the Kansas City Terminal Company, or any of those mentioned in paragraph (a) of section 6 hereof upon or over which no street-car line is constructed at the date when this ordinance is approved or becomes a law, it shall by ordinance require the first person or company desiring to so use and who shall be permitted to use such viaduct or viaducts or the approaches thereto, or to construct a track or tracks thereon, to pay to the Kansas City Terminal Railway Company one-half of the cost of such viaduct or viaducts and the approaches thereto, including the land damages, if any, paid by the Kansas City Terminal Railway Company on account of said approaches; and also to enter into a suitable undertaking to pay to the Kansas City Terminal Railway Company one-half of the subsequent maintenance of said viaduct, viaducts or approaches during the period of such use.’’ The franchise also carried similar provisions with respect to subways.

Defendant’s franchise ordinance S4217, enacted in 1927, granted it the right to use the streets and public ways of the city for a period of 20 years for the operation of street car lines, and it fixed defendant’s obligations, with respect to plaintiff, as stated in the preceding paragraph.

For many years defendant’s predecessor operated a street railway system over the public streets and ways of Kansas City, using the viaducts and subways mentioned herein and upon which it had' constructed its tracks, upon which its street cars operated. During those years it paid such sums as became due under the terms of the ordinances and of the 1917 contract. However, in 1925, defendant began substituting motor buses and trolleys for its street car service, after being authorized so to do by the Public Service Commission and by the City, and without objection on the part of plaintiff. In 1937 such substitutions were further so authorized, and without plaintiff’s objection. Substitution of motor buses for street cars and trolleys continued until it no longer operates cars or trolley buses, but operates only motor buses, as it has done for some years. Its rail and trolley facilities have been removed from the streets and public ways of the City, including the viaducts and subways involved herein: but its motor buses use said facilities in the same manner as do vehicles of the general public. Is defendant bound to pay a share of the maintenance costs of plaintiff’s viaducts and subways which it uses for its motor bus traffic, in common with the traveling public, although it operates no street cars or street car lines anywhere in Kansas City?

The answer to that question must' be found in the langauge of the above mentioned documents wherein the parties have expressed and fixed their respective obligations by their own contract and agreement. We are bound by the rule that an unambiguous instrument may not be judicially construed but must be given its plain, ordinary, and usual meaning. State ex rel. Prudential Ins. Co. of America v. Bland, 353 Mo. 956, 185 S.W.2d 654; Transcontinental & Western Air, Inc., v. Parker, 8 Cir., 144 F.2d 735, 736. The duty of Courts is to interpret and enforce contracts, not to make them. Tant v. Gee, 348 Mo. 633, 154 S.W.2d 745, 748; Rayburn v. Atkinson, (Mo.Sup.) 206 S.W.2d 512, 514; Forir v. Toman, (Mo.Sup.) 202 S.W. 2d 32, 34; 17 C.J.S. Contracts § 296, p. 702.

The subj ect covered by the contract, with which we are here concerned, is the use by defendant of viaducts and subways crossing over and under plaintiff’s facilities in the operation of street cars and street car lines. Defendant is required to pay plaintiff a share of the costs of repair and maintenance of its viaducts and subways so long as defendant shall use them in its operation of street cars or street car lines. This, is in effect, the language used in the applicable ordinances and contract. When it no longer so uses plaintiff’s facilities, the clear inference is that defendant shall no longer pay.

There are many court decisions wherein street cars and motor buses are defined. In City of Philadelphia v. Philadelphia Transp. Co., 345 Pa. 244, 26 A.2d 909, it was held that a bus is not a car. In Levy v. New Orleans & Northeastern R. Co., (La.App.) 20 So.2d 559, 562, it was said buses are not street cars and courts may not extend the application of an ordinance to a thing other than the certain thing mentioned therein. In Utah Rapid Transit Co. v. Ogden City et al., 89 Utah 546, 58 P.2d 1, 4, the court said that it had found no case holding that a motor bus line, not on rails, was a street railway. In Woodward v. City of Seattle, 140 Wash. 83, 248 Pac. 73, 75 the court said that to hold that the term Railways may be construed to include motor buses, is to say it includes all means of transportation, including those by water and air. In Akron Transportation Co. v. Glander, 155 Ohio St. 471, 99 N.E.2d 493, 497, the court said that neither a motor bus nor a trackless trolley is a street railroad. In State v. York Utilities Co., 142 Me. 40, 45 A.2d 634, 635, the court said: “Generically, the word ‘Railroad’ includes all roads upon which the carriages or cars have wheels adapted to run, * * * and do run upon metallic rails. The term includes tramways used in mining; it includes railroads in which the propelling power is steam, electricity, the horse or mule, and even those upon which push cars are propelled by men.” The Court further said that statutes governing the operation of street railways and buses do not contemplate that the operation of a bus is in any way the operation of a street railroad.

It has been stipulated that regular common carrier transportation of metropolitan passengers by motor buses began in London, England, in 1904, and has been in operation there ever since that time; and that such service on a permanent basis began in New York City in 1907, and has continued ever since. Therefore, motor bus service was an established fact in 1909, whether or not the officials of plaintiff, the City, or defendant’s predecessor had personal knowledge of it. It is the rule that when an ordinance or statute prescribes the particular thing upon which it is to operate all things not expressly mentioned are excluded from its operation. Hogan v. Fleming, 317 Mo. 524, 297 S.W. 404, 412; City of Hannibal v. Minor, (Mo.App.) 224 S.W.2d 598, 605; 62 C.J.S. Municipal Corporations § 442, p. 848.

Since common carrier transportation may be both by motor bus and by strert car, and since they constitute separate and distinct methods of transportation, the specific mention of the one excludes the other from the operation of the ordinances involved herein.

The judgment is reversed.

MAUGHMER, C., concurs.

PER CURIAM.

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

All concur.


text:
    Paul SWAN and Frances Swan, Respondents, v. Jerrold STUART, Doing Business As McVay Motor Company, Appellant.
    No. 23385.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.
    Russell N. Pickett, Eugene E. Andereck, Phil Hauck, Thomas O. Pickett, Pickett, Andereck & Hauck, Trenton, for appellant.
    R. Leroy Miller, Trenton, for respondent.
   BROADDUS, Judge.

Plaintiffs, Paul Swan and Frances Mae Swan, are husband and wife. They instituted this action against defendant seeking to recover damages growing out of an automobile collision. Plaintiffs’ petition was in three counts. In Count I plaintiff, Frances Mae Swan, sought damages for personal injuries. In Count II both plaintiffs prayed for damages to their automobile, and in Count III, plaintiff, Paul Swan, asked damages for loss of his wife’s services.

The jury returned a verdict awarding plaintiff, Frances Mae Swan, $1,000 for personal injuries (Count I of plaintiffs’ petition), and gave plaintiffs nothing for damages to their automobile (Count II) and awarded plaintiff, Paul Swan, $380 for loss of his wife’s services (Count III).

Judgment was entered upon the verdict, and in due time defendant filed his motion for new trial. That motion was taken up by the trial court on November 28, 1960, and “sustained as to Count II and Count III of plaintiffs’ petition, and overruled as to Count I of plaintiffs’ petition.” Thereafter, defendant took this appeal.

While the issue has not been raised by the parties, it becomes our duty to determine whether a final appealable judgment has been entered in the cause. Young v. Raupp, 301 S.W.2d 873, 874 (Mo.App.) The right of appeal is purely statutory. Section 512.020, V.A.M.S. provides that an appeal may be taken “from any final judgment in the case.” A judgment is defined by Section 511.020 as “the final determination of the right of the parties in the action.” A judgment to be final must dispose of all parties and all issues in the cause. Our statute does not allow parties to appeal piecemeal or permit them to bring one issue in a case to an appellate court while other issues therein remain undecided in the trial court. Magee v. Mercantile-Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614. The only exception to this rule is where the trial court orders a separate trial of a claim or issue (which is not the situation here) as contemplated by the provisions of Section 510.180(2) and Civil Rule 82.06, V.A.M.R.

According to the record before us the issues raised in Counts II and III of the petition remain undetermined in the trial court. A judgment on one count is not final where there has been no disposition of the remaining counts of the petition. Anderson v. Metcalf, 300 S.W.2d 377, 378, (Mo.Sup.) The trial court should set aside the judgment entered on the first count and hold the verdict thereon in abeyance until a final judgment can be entered disposing of the whole case.

The appeal is premature and must be dismissed. It is so ordered.

All concur.


author: HUNTER, Presiding Judge.

text:
    Ernestine O’BRYANT, Plaintiff-Respondent, v. BLACK AND WHITE CAB CO., Inc., a Corporation, Defendant-Appellant, and Van Doran Smith, Defendant-Appellant.
    No. 23376.
    Kansas City Court of Appeals. Missouri.
    Nov. 6, 1961.

      William A. Rundíe, Jr., Thomas D. Cochran, Morrison Heclcer, Buck & Cozad, Kansas City, for appellant.
    Laurence B. Silks, John R. Monaghan, Silks, Silks & Curtis, Kansas City, for respondent.
   HUNTER, Presiding Judge.

This is an appeal by defendants, Black and White Cab Co., Inc., and Van Doran Smith, from a $1,600 judgment against them for damages for personal injuries in favor of plaintiff, Ernestine O’Bryant. The sole question presented is whether plaintiff was guilty of contributory negligence as a matter of law in which event the trial court should have sustained defendants’ motion for a directed verdict filed at the close of all the evidence.

In reviewing the evidence to determine if plaintiff was guilty of contributory negligence as a matter of law it is the appellate court’s duty to consider the evidence in the light most favorable to plaintiff and to give her the benefit of all of the reasonable inferences from it. The evidence so viewed is as follows.

Plaintiff’s automobile and defendants’ taxicab collided in the intersection of Twenty-fifth Street and Brooklyn Avenue in Kansas City, Missouri, about 11:00 p. m. on June 2, 1959, injuring plaintiff. Brooklyn Avenue is fifty feet wide and Twenty-fifth Street is twenty-six feet wide. Brooklyn is described as being a four-lane street with two lanes for northbound traffic and two lanes for southbound traffic. There is also a parking lane on each side. Twenty-fifth Street apparently has only a single lane for eastbound traffic and a single lane for westbound traffic.

Just prior to the collision plaintiff was traveling eastwardly on Twenty-fifth Street, and stopped with the front of her car west of the pedestrian lane for a stop sign controlling eastbound traffic on Twenty-fifth Street at Brooklyn. The intersection was just a short distance from the baseball park and there was heavy southbound traffic on Brooklyn because the baseball game crowd was commencing to leave. Northbound traffic was light.

Plaintiff remained stopped at the intersection for about three minutes waiting for a traffic break in the southbound traffic. While she looked first to the left and then to the right. Then she proceeded to look to the left again and to> the right again and didn’t see any traffic coming from the south and she proceeded to cross the street. When she first looked to the north she saw cars a half block away proceeding from the north. On her second look to the north these cars were still a quarter of a block away. On her first look to the south, and she could see for a full block to the south, she saw no traffic coming from the south, traveling north on Brooklyn. In her second look to the south there was a line of southbound traffic that had proceeded past the intersection of Twenty-fifth Street, and the rear car in that line was a Black and White Cab which was then about a fourth of a block past her, going south on Brooklyn. Although she could still see for a full block to the south, a distance of 634 feet, and looked, she saw no cars that were northbound on Brooklyn. She testified that there was no traffic northbound in that entire block from Twenty-fifth to Twenty-sixth Street on Brooklyn. The intersection was clear of traffic from the north and south and she proceeded across it gradually increasing her speed “like I would normally drive in traffic”. A car headed west passed her about the middle of the street. Another westbound car, a Ford, was stopped at the stop sign .on the east side of Brooklyn. Plaintiff kept her eyes forward — to the front (east) and when the rear of her car had gone at least three or four feet past the center line of Brooklyn it was suddenly struck by the taxicab proceeding north on Brooklyn. At the time of impact she was looking forward to the traffic that was facing her. “It was because I had gotten my view very clearly from south of Brooklyn and north of Brooklyn and I had to watch the traffic that was facing me.” She did not see the taxicab approaching prior to the time of impact. At the time of the impact she was traveling ten miles per hour. Her car was struck toward its rear by the front of the taxicab and the taxicab’s bumper locked with her car’s back fender. The impact occurred in the inside lane, i. e., the lane nearest the center of the street for northbound traffic. The right side of her car was two or three feet from the south edge of the intersection. Her car was knocked around and against the mentioned Ford car still stopped at the stop sign on the east side of Brooklyn.

Defendant Smith, the taxi driver, testified that he had just delivered a passenger from the ball park to 2402 or 2403 Brooklyn. He received a radio call that they had other passengers for him at the ball park. He was on his way back to the ball park in his leftbound lane headed north on Brooklyn when the accident occurred. He stated he was traveling between 28 and 30 miles per hour although the speed limit on Brooklyn was 25 miles per hour. He was traveling approximately 25 miles per hour at the time of impact although he put on his brakes and laid down an 8 to 16 foot skid mark. He did not attempt to swerve the cab. “I was in the left-bound lane, she was in about the middle, the first lane of the southbound traffic when I saw her, and that was when we hit.” Her whole car was in the outside lane, next to the curb, and her front bumper was entering the inside lane, when he first saw her, and at that moment the front bumper of his cab was 16 feet back of the south boundary of the intersection. The impact took place on the east half of Brooklyn. At 28 to 30 miles an hour it would take him 100 feet to stop his taxicab. The impact occurred 5 feet north of that south boundary. There were no cars in front of him for a block and none behind him for a block.

An important feature of the case was whether defendant’s taxicab was the same taxicab that plaintiff had observed as being the last car in the line of southbound traffic south of the intersection at the time she took her second look to her right before proceeding into the • intersection. Plaintiff-testified it was the same car, and although there was evidence that defendant cab company operated some 23 vehicles of a similar description its Witness McCoy conceded this was the closest cab to the ball park at the time and that he had made no effort to search the company’s call slips to determine whether any other cab was in the vicinity. From this and other evidence the jury could properly have found that it was the same taxicab. The importance of this is that if it was the same taxicab plaintiff is supported in her contention that after she had last seen it south of the intersection proceeding south it made a U turn and proceeded back north on Brooklyn to the point of collision. This, plaintiff contends, is why she did not see any car northbound on Brooklyn when she looked to the right the second time just before she began to cross the intersection. On this point defendant cab driver was asked:

“Q. So as you travelled south on Brooklyn, can you tell me to what point on Brooklyn that you proceeded before you made your left-hand or U turn ? A. My left-hand was Twenty-fifth and Brooklyn, was where I turned around and went up to Twenty-sixth and came back down Brooklyn.
“Q. Then your testimony is that you turned right at Twenty-fifth and Brooklyn? A. Yes, sir.
“Q. And went around the block? A. Yes, sir.
“Q. And then came down Twenty-sixth Street? A. Yes, sir, and back onto Brooklyn.
“Q. Before you proceeded north on Brooklyn? A. Yes, sir.”

In view of the cab driver’s conflicting statement as to which direction he turned it is easily conceivable that the jury disregarded his statement on that subject. While no witness testified they saw him make the U turn the time element involved and the other circumstances are such as to permit the jury to draw the inference that he did so. Just prior to the collision he had been driving south from the ball park. He had delivered a passenger to the 2400 Block on Brooklyn which is north of the intersection in question. It was his intention to return to the ball park for another passenger. If he had turned either left or right at Twenty-fifth and Brooklyn, as he said, then plaintiff could not have seen him south of the intersection proceeding south, as she stated. If plaintiff is to be believed, and the jury apparently did believe her, the cab driver did not turn either right or left at Twenty-fifth Street but proceeded on past that intersection and in a short interval was headed back north on Brooklyn. Two witnesses testified they did not see the taxicab on Brooklyn prior to the time it was (1) about 75 feet from the intersection and (2) about 30 to 60 feet from the intersection.

With this evidence in mind we consider defendants’ contention that plaintiff was guilty of contributory negligence as a matter of law because after her second look to her right before she started across the intersection she looked only straight ahead from the time she entered the intersection until the impact occurred near the center of the intersection. Defendants cite and quote from Witt v. Peterson, Mo.Sup., 310 S.W.2d 857, 860: “It is the duty of a motorist entering an intersection to exercise the highest degree of care to maintain a careful and vigilant lookout ahead and laterally, and to see what a person in the exercise of the highest degree of care for the safety of himself and others would be expected to see under similar circumstances. For where one is charged with the duty to look, and to look is to see, he must be held to have seen what looking would reveal. Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73; Weis v. Melvin, Mo.Sup., 219 S.W.2d 310.” And, also cited somewhat similar language from such cases as Folluo v. Gray, Mo.App., 256 S.W.2d 273; Burton v. Moulder, Mo.Sup., 245 S.W.2d 844; Frandeka v. St. Louis Public Service Company, Mo.Sup., 234 S.W.2d 540; and Branscum v. Glaser, Mo.Sup., 234 S.W.2d 626. The quoted general rule of law is well settled and is not denied by anyone. It is the general duty of a motorist to keep a vigilant and careful outlook ahead and laterally upon entering an intersection and he must look efficiently so as to see what there is to be seen, and proceed as one in the exercise of the highest degree of care under the particular circumstances should proceed.

However, this is not to say that plaintiff is contributorily negligent as a matter of law for proceeding into the intersection at a time when after two looks both to her right and left she observed no oncoming cars from her right for one full block and none from her left that presented any danger and prior to the point of collision did not again look to her right but rather looked ahead to observe the one car headed west on Twenty-fifth Street toward her and that passed her about the middle of the intersection, and the other car that might start forward at any time at the stop sign on the east side of Twenty-fifth Street. It is defendants’ position she should have seen the taxicab coming north on Brooklyn at the time of her second look to her right. But plaintiff’s evidence is that she did see it then and it was headed south, away from her. Defendant also suggests she should have looked right again as she was in the intersection. In view of the traffic conditions and the other circumstances described whether she should, whether the taxicab at such time could have been then seen headed back north on Brooklyn, and whether she was negligent in not so looking, are questions we believe that properly belong to the jury. We note defendants unsuccessfully did submit the issue of plaintiff’s contributory negligence to the jury in two instructions.

In the case of Kolie v. Ruby, Mo.App., 300 S.W.2d 545, 547, involving the same type of question as before us — i. e., defendant had looked once and not seen defendant who later pulled around some stopped cars and came on to collide with plaintiff this court stated, “ ‘Negligence is ordinarily a question for the jury. It is always so where different minds might reasonably draw different conclusions from the evidence as given. Negligence cannot be conclusively established, as a matter of law, upon a state of facts on which fair minded men of ordinary intelligence may differ as to the inferences to be drawn therefrom. * * * Before a court would be authorized to declare a plaintiff guilty of contributory negligence, as a matter of law, the evidence must be such as to permit of no other reasonable conclusion, giving the plaintiff the benefit of every reasonable inference that may be drawn from the evidence in his favor.’ ”

It is not mandatory for a driver of a motor vehicle who has stopped at the intersection and carefully looked ahead and laterally and who has seen no oncoming cars within any distance that might present danger, while proceeding through the intersection to keep a continuous look in all directions. Where he should look and for how long depends upon the circumstances present at the time. The ultimate and controlling question is whether he is negligent in the circumstances presented by having failed to exercise the highest degree of care in the operation of the motor vehicle. If reasonable men might differ as to whether he was negligent under the circumstances, it is for the jury and not the court to decide the issue of negligence presented.

In Burke v. Reniclc, Mo.App., 249 S.W. 2d 513, the court ruled that where a motorist slows down and looks in both directions before starting across an intersection and again looks to his left at a point 15 to 20 feet before reaching it and sees no traffic to his left within a distance of 60 feet from the intersection he has a right to assume (until he is put on notice to the contrary) that there is no immediate danger from his left, and he need not anticipate the approach of a vehicle from that direction at an unlawful rate of speed. The court concluded that the issue was properly-submitted to the jury for the reason that reasonable minds could well differ on the question whether he was guilty of contributory negligence.

In Schmittzehe v. City of Cape Girardeau, Mo.Sup., 327 S.W.2d 918, 921, plaintiff stopped at the intersection and looking, saw no vehicle approaching from the south. She started across the intersection. “She did not again look to the south.” The court said, “The question actually presented here is whether, considering the evidence in the light most favorable to plaintiff, the trial court should have ruled that plaintiff was guilty of contributory negligence as a matter of law in proceeding across the intersection without looking a second time to the right after she had looked from the stop sign and had seen no approaching vehicle.

“It is, of course, the duty of a motorist entering an intersection to exercise the highest degree of care and to maintain a careful and vigilant lookout ahead and laterally ahead. He cannot drive blindly into the intersection, or rely solely on the fact that he has the right-of-way. Witt v. Peterson, Mo.Sup., 310 S.W.2d 857(1, 3). Neither does he fulfill the duty imposed upon him by stopping at a stop sign and then driving into the intersection without making proper observations to determine that there is no cross traffic in or so near to the intersection as to constitute an immediate hazard. 60 C.J.S. Motor Vehicles § 359c. In this case plaintiff stopped at the stop sign and looked, and for a distance of approximately 115 feet saw no approaching traffic. She then entered the intersection, and under the evidence favorable to her, the defendant was sufficiently far away that she properly appropriated the right-of-way, and she then had the right to proceed absent actual or constructive knowledge of the approach of other traffic which, in the exercise of the highest degree of care, she knew or should have known was not going to yield the right-of-way to her. She received no warning from defendant. While she had the duty to maintain a look-out ahead and laterally ahead she could not keep an uninterrupted watch in two- directions, she was not required to look constantly to one side, and she did not need to keep turning her head from side to side. 60 C.J.S. Motor Vehicles § 287. In addition, the Robert automobile was ahead of her, and even though stopped, it required at least some attention on her part.

⅜ ⅜ ⅜ ⅜ ⅜ ⅜

“ * * * Under these circumstances whether or not her failure to look a second time when defendants say she should was the proximate cause of the collision would certainly be a jury question.” See, also, Carpenter v. Kessner, Mo.App., 330 S.W.2d 270.

Giving the plaintiff, as we must, the benefit of every reasonable inference that may be drawn from the evidence in her favor precludes us, under the peculiar facts of this case, from ruling that she was guilty of contributory negligence as a matter of law.

The judgment is affirmed.

All concur.