author: EAGER, Chief Justice.

text:
    Kathleen Marie MOORE, by her next friend, Raymond H. Moore, Appellant, v. Gary ERVIN and Leo William Steger, Respondents.
    No. 49247.
    Supreme Court of Missouri, In Banc.
    Jan. 13, 1964.
    Frederick E. Stock, Sikeston, for appellant.
    Finch, Finch & Knehans, Jack O. Knehans, James A. Finch, Jr., Cape Gir-ardeau, for respondent Gary Ervin.
    Jackson, Thomasson & Dickerson, Donald P. Thomasson, Cape Girardeau, for respondent Leo William Steger.
   EAGER, Chief Justice.

Plaintiff, through her father as next friend, sought $300,000 in damages for serious personal injuries; she was nineteen years of age at the time of trial. The injuries were sustained in a head-on collision between the automobile in which she was a rear-seat passenger and an oncoming car. Several other persons were killed. At the close of plaintiff’s evidence the trial court directed a verdict for defendant Ervin and the jury returned a verdict for defendant Steger. Plaintiff has appealed, contending that she made a submissible case against defendant Ervin, and, as to Steger, that the Court committed errors in instructing the jury and in its rulings during argument. Steger’s counsel, while denying all specific errors claimed, asserts in the first instance that plaintiff failed to make a submissible case against him. Ervin, through his counsel, supports the ruling directing a verdict for him.

The case was argued and submitted in Division One of this Court, and an opinion was filed on April 8, 1963. In that opinion the Court held that the trial court correctly directed a verdict for Ervin; it further held that plaintiff had made a submissible humanitarian case against Steger, and that it had erred in giving an instruction on Steger’s behalf. Consequently, the judgment as to Ervin was affirmed, but the judgment in favor of Steger was reversed and the cause remanded. Judge Hyde dissented from that part of the opinion reversing and remanding the case as to Steger. We shall refer to that brief dissent later. The cause was transferred to the Court in Banc where it was again argued and supplemental briefs were filed. Where any references to the pleadings are necessary, they will be made in the body of this opinion. All negligence submitted was properly pleaded and, in fact, much more was alleged than was submitted.

This most unfortunate casualty occurred on Cape Girardeau County Road V; the road was blacktop, 22 feet wide, with no center line or warning signs and rather hilly. At the location in question the shoulder was only 2-3 feet wide on the west side, beyond that “about a foot of ditch,” and beyond the ditch a steep bank 8 or 9 feet high. The date was July 5, 1959, Sunday, and the time was about 3:30 to 4:00 p. m.; the day was bright and hot and the road dry. About 1:00 o’clock on that day Paul Hahn, driving a 1953 Chevrolet and having Bill Hand as a passenger, picked up plaintiff and her sister June at their home. The ages of these young men are not shown. A stop was then made at the ■“Spot Cafe” in Cape Girardeau where Hahn had at least two beers. Plaintiff left and went on two errands during that time. When the trip was resumed, they went by Plahn’s home where apparently all but plaintiff put on swimming suits and all then left for a projected swimming place. This car was followed by one driven by Ross Dyer. On the way Hahn and Dyer stopped again and remained in some roadside place (undescribed) for ten or fifteen minutes. When the final leg of the journey started, Hahn was driving with June Moore and Diane Dyer in the front seat, and the plaintiff and Bill Hand in the rear, with plaintiff on the left side. Hahn proceeded thence north until the collision occurred.

The impact occurred near a crest in the road,- — -by measurement 18 feet to the south of it and 6-7 feet south of the edge of the farm driveway of a Mr. Hanebrink, who lived on the east side of the road. There was another crest in the road 705 feet to the south of the one just referred to; from the top of the south crest the view is unobstructed to the next one and the road inclines slightly as it proceeds north, but there is a dip or “swag” which creates a “blind spot” shortly before one reaches the crucial northerly crest. North of the latter (northerly) crest the road dips rather sharply for a considerable distance, then rises to another crest, all as shown by plaintiff’s photographic exhibits and by the testimony.

Prior to this collision Hahn and his passengers were proceeding north behind a 1955 Ford Ranchwagon driven by defendant Ervin, who had one passenger. After passing the south crest described, Ervin was driving 35^40 (possibly 45) miles per hour, Hahn around 60; at a point described as from 225-250 feet south of the point of impact and while traveling about “60” (as related by plaintiff’s witness Daugherty) Hahn started to pass Ervin’s car; he increased his speed in order to pass and the cars traveled more or less together for about 150 feet; apparently Hahn’s car never got quite even with Ervin’s, though “fairly close.” During this period both cars were approaching the crest near the point of impact with Hahn entirely in the southbound lane; defendant Steger, driving a 1956 Chevrolet with five passengers, was approaching from the other (north) side of the crest. The witness Daugherty, who had been sitting in the Hanebrink front yard watching Hahn and Ervin, testified: that he “noticed another car coming up the hill” (Steger), so he jumped up, knowing that a collision was “inevitable,” and ran into the house to call an ambulance; that there is a “blind spot” in the road that would hide the cars from each other; that Steger’s car was roughly 100-150 feet north of the point of impact when he first saw it and its speed was about 35-40 miles an hour; that when he jumped up the Steger and Hahn cars were from 50 to 100 feet apart; that immediately before Steger got to the crest the Ervin car was “somewhere” slightly in front of or alongside the Hahn car, and that if Steger had swerved to the left he would have met the Ervin car head on; that only a “split second” elapsed from the time he (Daugherty) turned and started toward the house until he heard the impact.

' The plaintiff herself was able to add little to the facts thus related. She was (apparently) facing partially to her right, toward Bill Hand. She testified: that Hahn had speeded up and slowed down; she first indicated that this occurred “several times” while he was trying to pass, but she later testified specifically on cross-examination that he did so “when we were behind that car,” and that on one such occasion he threw her off the back seat. She was somewhat vague as to whether she had seen the Ervin car as they were attempting to pass it, but finally stated that she saw it when “The front fender of our car was even with the rear fender of his car,” just a “few seconds” before the collision, later stated as two or three seconds. She never saw the Steger car. She further testified that at some point Hahn said aloud, “Get out of the way up there you (omitting a 'dirty word’) and let me pass”; it was first indicated that this statement was made “just before we hit,” and later, just a “little bit” before the wreck, and also while Hahn was trying to pass. She did not note any application of brakes by Hahn; she testified that Hahn was driving “around sixty,” but that it could have been between “sixty and sixty-five,” that it was “too fast,” and that his speed was faster than on any prior occasion when she had ridden with him.

A member of the Highway Patrol testified that the debris was in the southbound lane and that the impact was “all in the south bound traffic lane”; that the Hahn car left 81 feet of skidmarks, all of which were parallel with the (imaginary) center line except that the last two or three feet turned “toward” the other lane (with the angle or line not more accurately stated) ; that no skidmarks were found for Steger’s car; that the cars were three or four feet apart, Steger’s still headed south in its own lane, and Hahn’s headed north but somewhat diagonally across the southbound lane; that because of the background and the topography, as the cars approached the crest the “Hahn car could see the Steger car better than the Steger car could see the Hahn vehicle.” After sundry objections the witness was allowed to testify to certain stopping distances and reaction times which apparently were the combined result of experiments in which he had participated and the tables of the National Safety Council; these figures were not specifically applied either to a 1953 Chevrolet or a 1956 Chevrolet, nor did the results contemplate the use of a car with four or five passengers; hence the results are not entirely accurate or conclusive. However, the evidence is in the case for whatever it is worth, and the case should be decided on a broader basis than on objections to such evidence. This evidence was: that a 1958 Chevrolet with adequate brakes could be stopped at 40 miles per hour within 126 feet or less, 44 feet of which (three-fourths of a second) would be reaction time; that reaction time valued from three-fourths of a second to one and one-fourth of a second; that at 60 miles an hour the total stopping distance is 251 feet; that various factors enter into stopping distances, including the load, the topography of the road, the size of the tires and brakes, etc.

Plaintiff submitted her case against Steger on alleged primary negligence in failing to keep a proper lookout and upon alleged humanitarian negligence in failing to slacken speed sufficiently to have prevented the collision. As developed throughout the trial, the specific humanitarian theory was that Steger could and should have slackened sufficiently to permit Hahn to turn back into the northbound lane. In support of that theory, it was shown that from a position in the southbound lane 132 feet north of the point of impact a photograph taken at four feet and four inches above the ground level (supposedly the approximate eye level of the photographer when seated in a car) would show the top, and only the top, of a Ford Falcon car placed in the same lane 147 feet south of the point of impact; also, that from the same vantage point a photograph showed the Falcon car down to the front bumper when it was placed 81 feet south of the point of impact. The photographer also testified that Steger was taller than he was.

Plaintiff introduced portions of Ervin’s and Steger’s depositions as admissions; the substance of Ervin’s excerpts was: that he was, in some manner, conscious of the fact that Hahn was “coming around”; that he, Ervin, was traveling “right about forty miles an hour,” that they traveled together for probably not more than a few seconds, and that he could not say that he actually saw the collision; that he turned in at the first driveway and came back. Steger’s deposition testimony was: that he was driving from 35 to 40 miles an hour; that when he first saw the Hahn car he (Steger) was “0(h), around fifty feet [from it] I guess”; that the car which Hahn was trying to pass “went on down the road, I guess”; that he believed it had passed the point of collision at the time of the collision; and that the brakes of the car he was driving were in good condition. In so far as the testimony of Ervin and Steger might conceivably aid plaintiff’s case we note the following from trial testimony. Ervin testified: that “right about the time of the impact or immediately before I realized that he [Hahn] was in the process of passing”; that when Hahn was “somewhere alongside” he saw the Steger car at less than 100 feet; that he first hit his brakes instantaneously and then applied the gas “to move out of the path of the collision * * it seemed the thing to do right at the time”; that a split second elapsed between the time he first saw Steger and the collision; that he did not know Hahn’s speed. He pulled off into the Hanebrink driveway or yard. Steger testified: that he was driving at 35-40 miles an hour; that he had five passengers in his car; that he had come down a long hill and then up a grade; that when he was about 50 feet or a little farther from the point of collision Hahn’s car came up over the hill and “before I had time to stop or even get my foot on the brake, he had hit me * *

Plaintiff’s theory as to Ervin was that he was negligent in speeding up when he knew Hahn was trying to overtake and pass him, and in failing to slow down after he knew that Hahn was attempting to pass at a dangerous place. Counsel argue that the statement supposedly made by Hahn, to-wit, “Get out of the way you-and let me pass” created an inference that Ervin was speeding up and slowing down to prevent the passing; also, they urge the testimony that the cars traveled together for perhaps 150 feet as creating an inference that Ervin speeded up. The two inferences would be somewhat inconsistent. As to the first supposed inference, the contention is unsound because the plaintiff herself made it clear on cross-examination that Hahn’s speeding up and slowing down occurred while he was behind Ervin and not while he was attempting to pass. As to the other contention, and as constituting our holding generally on the submissibility of the case against Ervin, we adopt the following from the Divisional Opinion: “Appellant further points to testimony by the witness Daugherty to the effect that Hahn started to pass the Ervin car when Hahn was 225 to 250 feet from the collision point and that he saw the cars driving 'side by side’ for about 150 feet. As we read Daugherty’s testimony, he said he could not say the cars ever got ‘side by side,’ i. e., exactly even, but that the front of the Hahn car did get ‘almost even’ with the Ervin car, and he estimated that they traveled more or less side by side for 150 feet. Appellant contends that inasmuch as the Hahn automobile was going considerably faster than the Ervin car, and inasmuch as they traveled ‘side by side’ for 150 feet, the only reasonable inference is that Ervin must have accelerated to prevent Hahn from passing. The difficulty • with that position is that it assumes, contrary .to plaintiff’s evidence, that Hahn continued at a speed of 60 m. p. h. for 150 feet rather than, as plaintiff’s evidence showed, making skid marks or tire ’marks for the last 81 feet prior to the impact point in an attempt to stop as quickly as possible.

“Appellant contends further that Ervin knew that Hahn was trying to pass and knew that it was a dangerous place at which to pass. We have heretofore noted Ervin’s testimony in those respects. He said that at some point he did realize that Hahn was trying to pass; that whether he got a glimpse of the car out of the corner of his eye or in his reár-view mirror, he did not know; that it did occur to him that it was a dangerous place to pass; that he then saw the approaching Steger car and, after an instant of indecision, accelerated to get out of the way. There was no evidence that Hahn ever gave any audible signal of his intention to pass in accordance with the requirement of Section 304.010 RSMo 1959, and V.A.M.S.

“We are of the opinion that there was no substantial evidentiary basis to sustain a reasonable conclusion that Ervin negligently accelerated or negligently failed to slacken. See Probst v. Seyer, Mo., 353 S.W.2d 798, 802 [1-3]; Linneman v. Freese, Mo., 362 S.W.2d 585, 587 [2]. It follows that the trial court did not err in directing a verdict for Ervin at the close of plaintiff's evidence.” And, we may add now, there was certainly no substantial basis in the evidence for a reasonable conclusion that any other or different action by Ervin, after he realized that Hahn was trying to pass, would have prevented the collision; in other words, there was and is no substantial evidence to show that any possible negligence of Ervin did or could have caused or contributed to the collision.

As to Steger, a somewhat different situation is presented, but the majority of the Court has determined, adverse to the former opinion, that no submissible case was made. Plaintiff’s contentions on this aspect of the case are best stated in her reply brief (omitting transcript page citations) : “Appellant’s evidence showed that Respondent could have seen the Hahn car at least 132 feet from the point of collision; that his reaction time would have taken 44 feet; that he would have 82 feet within which to brake; that he never applied his brakes at all up to the point of collision; and that the Hahn car could have cleared the passing lane into the other lane in another one-third of a second.” Next, counsel submitted certain factors which allegedly even decreased the stopping distance of 126 feet, and based thereon stated further: “Therefore, considered in the light most favorable to plaintiff, Respondent couid have stopped 32 feet or more short of the point of collision. Appellant’s evidence further showed that the Hahn car was in a controlled skid so the jury could very reasonably have found that if Respondent had slackened his speed, Hahn would have had time and opportunity to have released his brakes and returned to the Northbound lane, avoiding the collision.” The actual location of Steger when he could first see Hahn’s car is problematical, for, at best, this depends largely on where Hahn was. It seems that plaintiff’s counsel and the photographer more or less arbitrarily selected the sight distances based upon Steger’s asserted stopping distance. When Steger was 132 feet from the point of collision traveling 35-40 miles per hour, Hahn, traveling according to all the evidence at 60 or more, was, in all probability, further back than the computed 147 feet from the point of impact; however, plaintiff has figured Steger’s stopping distance on that basis. That theory and those measurements are based on the testimony of the photographer that the top of a car placed 147 feet south of the point of impact could be seen by Steger when he was 132 feet north. Thus, the difficulty with this formula and contention is that it assumes that Hahn was located 147 feet south when Steger was 132 feet north, that he reacted precisely at 147 feet, got his brakes applied in 66 feet and slowed to 40 miles an hour during the 81 foot skid; also, that this consumed the exact time necessary for Steger at 40 miles an hour to proceed 126 feet, or approximately two and one-fifth seconds. It is entirely apparent that in that period Hahn would have traveled a total of 198 feet except for such slowing as his braking may have accomplished; and with a required total stopping distance of 251 feet at 60 miles per hour (and more if above 60) it would seem most speculative to guess at his speed when he had traveled 147 feet. In other words, the inference that Hahn was 147 feet south when Steger was 132 feet north of the point of impact, the foundation upon which this theory was laid, is problematical at best; and the supposed fact that Steger could and should, as a practical matter, have seen the top of Hahn’s car at that location is also problematical. All this leads to an inference, at least equally as reasonable, that Hahn was actually further away than 147 feet at the instant so chosen. And, moreover, it is a long stretch to hold that one should take warning and react instantly when the very top line of a car (and a white top at that) appears above the crest of a hill in one’s lane against a bright July sky. We note also that plaintiff’s Highway Patrol witness Logsden testified that on account of the topography Hahn was in a better position to see Steger than Steger was to see Hahn; and that the evidence clearly indicated that Hahn had increased his speed when he attempted to pass, which would certainly alter his assumed position or positions. Thus, in our view, the making of a submissible humanitarian case of negligence against Steger is most doubtful, but we prefer to rest our ruling on the issue of causation.

It is entirely obvious that Hahn (in using his stopping distance of 251 feet) would have proceeded at least another 104 feet past the point of impact, even if he reacted at 147 feet to the south. Thus, there would have been a collision no matter what Steger did unless Hahn had turned into his own lane, for even on plaintiff’s basic theory (of, 40 miles an hour) Steger could only have stopped 6 feet short of the actual point of collision. Plaintiff’s theory has been and is that “the jury reasonably could have found that if Steger had applied his brakes at a place 82 feet from the collision point (126 feet total stopping distance less reaction distance of 44 feet), he would have slackened his speed sufficiently to have enabled Hahn to have returned to the northbound lane behind the Ervin car, and thus and thereby have avoided the collision.” The last 2-3 feet of Hahn’s skid-marks “turned toward” the other lane, or “veered to the right” as the highway patrolman testified. There was no better or more complete description. We do not know the angle or curve, or whether that part of the skidmarks was of the same nature, appearance, width, etc., as the remainder. Based on this testimony, plaintiff contends, and the 'Divisional Opinion held, that such testimony “permits a reasonable inference that the Hahn automobile was not 'skidding’ out of control but, on the contrary, its speed had been reduced to not in excess of 40 m. p. h. when it was three feet short of collision; that, under the circumstances, Hahn could have angled into the northbound traffic lane with safety so far as concerned the speed of his own automobile. * * * Hahn, traveling at about 40 m. p. h., needed about one third of a second to have moved into the northbound lane. Thus, it seems to us that the evidence supports the further reasonable inferences that had Steger applied his brakes when in the exercise of the highest degree of care he could have, the front of his automobile would have been-, considerably farther than six feet from the front of the Hahn automobile when Hahn began to move into the northbound lane and that the space between the Hahn and Steger cars would have been sufficient to have enabled Hahn to have safely reached the northbound lane in so far as concerned the presence and proximity of the Steger car.” It is, we think, a rather violent assumption and not a reasonable inference that a driver in a skid which would require at least 18S feet of skidding to stop (and more if Hahn had, as generally indicated, increased his speed above 60) could, in one-third of a second while still skidding after 81 feet, and with an oncoming car almost upon him, turn into the other lane and avoid a collision. No part of Hahn’s car ever reached the northbound lane even after the collision. Nor can we fairly infer that Hahn had reduced his speed to 40 miles an hour; the mere fact that the cars were 3-4 feet apart' after the collision creates no such inference. Everyone who has driven a car and skidded realizes the almost total helplessness of a driver, even at lesser speeds than shown here. We may not infer Hahn’s ability to control the car sufficiently to make a sudden, indeed instantaneous, turn. But there is another and wholly independent reason why a submissible case was not made on the issue of causation. Plaintiff’s evidence, aided by any and all favorable inferences from the defendant’s evidence, does not show that the space to Plahn’s right (the northbound lane) was sufficiently clear that he could have turned, even had he been able. At no place is there substantial evidence to show that Ervin had cleared sufficiently to permit such a turn. Plaintiff only saw Ervin’s car when Hahn’s front fender was even with Ervin’s rear ffender, and she did not relate this fact to the relative speeds or to the specific time of the collision, so as to make it material. Daugherty (plaintiff’s witness who was sitting in the yard) saw Hahn attempting to pass and speeding up, saw Hahn get “fairly close,” but not exactly side by side, and saw the cars travel approximately side by side for about 150 feet. At no point did Daugherty, or anyone else, testify that Ervin pulled ahead so as to leave a clear space. Ervin testified (by deposition) that they traveled side by side for “a few seconds” — “less than a minute, definitely”; and (at the trial) that “right about the time of the impact” he realized Hahn was passing; that at the instant he saw the Steger car (at less than 100 feet) Hahn’s car was “somewhere alongside the (my) station wagon”; that instantaneously he hit his brakes, but then applied the gas; that a “split second” elapsed between the time he saw the Steger car and the collision. Ervin turned into the Hanebrink driveway and the actual impact occurred about 5-6 feet south of it. The evidence simply fails to show, directly or by reasonable inference, that Ervin was sufficiently far ahead of Hahn during the critical moments to permit the latter to turn into the other lane. No one contends that Ervin’s car was behind Hahn, so as to permit a successful passing. Plaintiff relies, in part at least, upon a statement read from Steger’s deposition. Steger was asked, “assuming” that Hahn was applying his brakes, “What was happening” to the car he was trying to pass. Steger replied: “I couldn’t say, it went on down the road, I guess”; he also added that he believed it had passed the point of collision at the time of the collision. Considered with all the other evidence, this vague testimony falls short of creating an inference that Ervin had proceeded fast enough and far enough to permit Hahn to turn, even if he had had time to turn before hitting Steger. Since the collision was entirely in the southbound lane, Ervin could have still been partially opposite the collision without suffering damage. We hold that there was no substantial showing that this collision could have been prevented by a slackening of the speed of Steger’s car. As said by Judge Hyde in his dissent in Division: “It is my view that the evidence leaves entirely to speculation and conj ecture the matter of ability of Hahn to get out of the west lane in which he was driving abreast of Ervin’s car in time to have prevented the collision, even if Steger had slackened speed as submitted.”

The cases cited pro and con are applicable only as stating generalities. Plaintiff cites Shaw v. Griffith, Mo.App., 291 S.W.2d 230, 235, for the statement that it requires no proof to show that modern automobiles respond quickly and accurately to the touch of the driver’s hand. Of course that is true, but the time and space required for a turn must still be available. Steger’s counsel cite many cases which it will be unnecessary to review. Plaintiff is entitled to the benefit of all favorable evidence and to such reasonable inferences as are warranted by the evidence; but this means substantial evidence, and a humanitarian case which leaves one or more of the essential elements to speculation or conjecture “is not for the jury.” Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494. And see, generally, Berry v. Harmon, Mo., 323 S.W.2d 691; Bauman v. Conrad, Mo. App., 342 S.W.2d 284; Kirks v. Waller, Mo., 341 S.W.2d 860, 863; Probst v. Seyer, Mo., 353 S.W.2d 798; Pipes v. Missouri Pacific R. Co., Mo., 338 S.W.2d 30, 36. In Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495, and Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33, the court indicated that it would not attempt to conjecture on what might be done in “split” seconds or fractions of a second in humanitarian cases. In Yeaman, supra, at loc. cit. 498 of 217 S.W.2d, the Court said: “Should we attempt to adjudicate negligence even under the humanity theory when, of necessity, it must be based upon variable surmises as to what may or may not have been accomplished in two-thirds of one second, a little more or a little less ?” In Wilson v. Toliver, Mo., 305 S.W.2d 423, the Court said at loc. cit. 431: “After the Jones car passed the point where he could safely turn to his right, it is wholely unlikely that either driver could do anything to avoid the collision. Allowing for deceleration that may have occurred after the brakes were applied, the accident probably occurred within two seconds or less after the Jones car entered the intersection. Then each of the parties was 136 feet from the collision point and traveling at the rate of 73 feet per second. We recognize that in the last 50 feet when the cars were skidding, effective turning was impossible and the drivers at best could only veer slightly from their respective courses. Neither can be charged with a failure to do more than he did in the last 50 feet.” In Findley v. Asher, Mo., 334 S.W.2d 70, at loc. cit. 74, the Court said: “A mere possibility of avoiding a collision is not sufficient to make a case under the humanitarian rule. Paydon v. Globus, Mo.Sup., 262 S.W.2d 601, 604; Claridge v. Anzolone, 359 Mo. 65, 220 S.W.2d 33; Yeaman v. Storms, 358 Mo. 774, 217 S.W.2d 495; Wolverton v. Kurn, 348 Mo. 908, 156 S.W.2d 638.” See, also: Shaw v. Griffith, Mo., 291 S.W.2d 230. And that principle is certainly applicable on the issue of causation, an essential element of a humanitarian case.

We hold that plaintiff made no submis-sible humanitarian case against Steger. In view of our ruling it is unnecessary to consider any of the specific errors which plaintiff asserts. Kirks v. Waller, Mo., 341 S.W.2d 860; Brooks v. Stewart, Mo., 335 S.W.2d 104, 81 A.L.R.2d 508. Although plaintiff submitted Steger’s alleged failure to keep a proper lookout as a charge of primary negligence against him, the jury found for Steger on this submission and plaintiff has made no point here of error in that submission. The charge of primary negligence has been abandoned. Moreover, our holding of no submissible case on the element of causation is applicable to the primary submission as well as to the humanitarian submission.

The judgment in favor of both defendants is affirmed. We note, however, a technical insufficiency in the form of the judgment in that the trial court: “hereby orders judgment rendered for all the defendants and against plaintiff.” The defect was one which was subject to correction nunc pro tunc. Since we are authorized by Section 512.160 RSMo 1959, V.A.M.S., to give such judgment as the trial court “ought to have given,” we now render and enter here the following judgment: “It is therefore ordered and adjudged that plaintiff take nothing in this cause, either as to defendant Ervin or defendant Steger, and that each and both such defendants go hence, and recover their costs, for which execution shall issue.”

All concur.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    Frederick H. YOUNG, Appellant, v. KANSAS CITY SOUTHERN RAILWAY COMPANY, a Corporation, Respondent.
    No. 49840.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    J. John Marshall, Pittsburg, Edward V.. Sweeney, Monett, for appellant.
    Richard S. Righter, Robert D. Youle, William H. Bates, Ronald G. Schmidt, Kansas City, Lloyd Buehner, Joplin, for respondent ; Lathrop, Righter, Gordon & Parker, Kansas City, of counsel.
   COIL, Commissioner.

In an action under the Federal Employers’ Liability Act, Frederick Young sought damages of $504,476 for injuries he claimed to have sustained as a result of the Kansas City Southern Railway Company’s alleged negligence on July 17, 1961. A jury awarded him $5,000 and he has appealed from the ensuing judgment. He contends that the trial court erred in refusing to declare a mistrial and thereby forced him to submit his case despite allegedly improper argument by railroad’s counsel; and further that the judgment is grossly inadequate and that the trial court abused its discretion in refusing to grant him a new trial on the ground of inadequacy of verdict. We shall refer to the parties as they were designated •in the trial court.

Plaintiff, the rear brakeman on a freight train, was riding in the caboose. A wasp flew in the window, plaintiff arose, killed the wasp, and started toward the front of the car, whereupon the train, traveling 30 to 40 miles per hour, suddenly stopped which caused plaintiff to “fly through the air” and land on his right hip and side.

The only portions of the arguments of ■counsel contained in the record are:

“[Plaintiff’s counsel] : * * * The conductor, who was sitting hack there on the back end of that train with Mr. Young, he is their employee. It would have been interesting to have heard what he would have had to say if they had brought him in.
“[Defendant’s counsel]: Pie was here and equally available to plaintiff. He was in the room.
“THE COURT: Overruled.
“[Plaintiff’s counsel]: So that of their employees, the ones that know about it, have control over it, they didn’t bring anyone but the engineer, that’s the only one they called to the stand. Now they tell us that this conductor was here, perhaps he was; why didn’t they put him on the witness stand and let him tell you what happened? Oh, no, they would like to say that we should put him on the stand. What do you think about that? How do I know what their claim agent and what their lawyers have done with this man and what he might say ?
“[Defendant’s counsel]: We object to this very strenuously.
“THE COURT: Sustained.
“[Defendant’s counsel]: * * *. Now in his summation to you Mr. Sweeney said it was interesting why we didn’t call Conductor Kennedy.
“[Plaintiff’s counsel]: Just a moment.
“(Off-the-record discussion between the Court and counsel.)
“(Out of the hearing of the jury:)
“[Plaintiff’s counsel]: I would like for the record to show that the Court-has previously stated that he thinks there should be a mistrial if I insist on it, and I am insisting on it.
“THE COURT: This witness was available for you, equally available to you as well as the defendant; further, you have gone ahead and even taken his deposition and knew what he would testify to in this case. The court is going to instruct the jury to disregard the argument of defendant’s counsel and ask that the argument in regard to the failure to produce witness Kennedy be disregarded. And the Court will further permit plaintiff’s counsel to explain why.
“[Plaintiff’s counsel]: May the record show that in view of the present state of the record, we request a mistrial in view of what has occurred.
“THE COURT: Be refused.
* =:= *
“THE COURT: Ladies and gentlemen, the Court instructs you to disregard the argument of defendant’s counsel wherein he referred to the failure of the witness Kennedy to testify in this case. And you are not to consider the argument of defendant’s counsel as to that particular fact in this case.”

The foregoing excerpts from the transcript are self-explanatory, but analyzing them part by part shows that plaintiff’s counsel, as he had a right to do, referred to the failure of defendant to call as a witness its conductor-employee who saw what happened in the caboose. Defendant’s counsel objected on the ground that witness was equally available and was in the courtroom. The trial court correctly overruled that objection; whereupon plaintiff’s counsel proceeded not only to continue to comment upon the failure of defendant to call the conductor but turned to his advantage defendant’s unsuccessful suggestion that plaintiff should have put the witness on the stand. In the final sentence of that portion of his argument plaintiff’s counsel said that he didn’t know what defendant’s claim agent or its lawyers had done to the man and what he might say. Defendant’s counsel objected, and it is clear that it was that statement to which he objected, and the court correctly sustained the objection.

Apparently, the rest of plaintiff’s counsel’s argument proceeded without objectionable incident; at least, the rest of his argument is not before us. Sometime during his final argument defendant’s counsel said: “Now in his summation to you Mr. Sweeney said it was interesting why we didn’t call conductor Kennedy.” Whereupon plaintiff’s counsel called a halt and an off-the-record discussion took place between court and counsel.

Plaintiff contends, as indicated by his statement in the record, that the trial court stated during that discussion that in his opinion error had been committed and that plaintiff was entitled to a mistrial if his counsel insisted upon it; and plaintiff’s counsel did insist upon it. While the record does not show that the court made the statement above noted, we shall assume that he did. On the record, however, we must further conclude that the trial judge changed his mind during the course of the colloquy and finally decided, and so told counsel, that he would instruct the jury to disregard the “argument” of defendant’s counsel with respect to the failure (we assume of plaintiff) to produce the conductor as a witness. And as we understand, the trial court indicated to plaintiff’s counsel that he could in his final argument comment further upon defendant’s failure to have produced the conductor. Whereupon, still out of the presence of the jury, plaintiff’s counsel requested a mistrial which was refused. The trial court then instructed the jury to disregard defendant’s counsel’s “argument” referring to the failure of the witness Kennedy to testify. No objection was made to that statement or direction.

The foregoing portions of the record and our analysis of them seem to us to demonstrate that the trial court did not err, at least as to the plaintiff, with respect to any matter connected with the argument which has been preserved for appellate review. We observe that we do not know what defendant’s counsel intended to say about opposing counsel’s statement that the defendant hadn’t called the conductor as a witness. But, in any event, the trial court told the jury to disregard any reference to the matter and gave plaintiff’s counsel an opportunity (which we assume he used) to again refer to defendant’s failure to produce the conductor. Thus, it seems to us that in so far as we are able to ascertain from the portions of the record before us, the entire incident and course of events were advantageous rather than detrimental to the plaintiff. We hold, therefore, that plaintiff was not denied a fair trial or the jury prevented from impartially considering the evidence by the “absent conductor” incident.

When the trial court overruled the allegation in plaintiff’s motion for new trial that the verdict was inadequate, it weighed the evidence and determined that a $5,000 award was not against the weight of the evidence. Coats v. News Corp., 355 Mo. 778, 197 S.W.2d 958, 962 [6-8]. Under those circumstances, ordinarily we do not weigh the evidence but confine our review to a determination of whether the trial court abused its discretion in overruling plaintiff’s new-trial averment that the verdict was inadequate; and to determine whether it did, we examine the record to ascertain whether there was substantial evidence to support the trial court’s action. Murphy v. Kroger Grocery & Baking Co., 350 Mo. 1186, 171 S.W.2d 610, 613 [8, 9]; Glore v. Bone, Mo., 324 S.W.2d 633, 636 [4].

Plaintiff’s evidence as to loss of earnings and as to injuries was such as to have sustained a judgment much in excess of $5,-000. The jury reasonably could have found that plaintiff had lost earnings to trial time in excess of $6,000; that he had sustained a herniated intervertebral disc between lumbar 4 and 5; that he was disabled as a result of that condition and not employable for physical labor, including railroading.

We exclude from our consideration, however, the evidence which would have sustained a larger award and examine the record to determine whether there was substantial evidence to justify the $5,000 verdict. A doctor testified that plaintiff probably suffered a soft tissue injury to his low back, injury to his right elbow, right hip, and left great toe, based upon the history given him by the patient, but, at the time of his examination fourteen days prior to trial, there was no evidence of any remaining injury to those parts as a result of the fall; that plaintiff had a sway back and a “weak belly” resulting in a postural backache; that plaintiff did not have a ruptured interverte-bral disc; and that he was able to do general labor including the work of a railroad brakeman.

Plaintiff concedes that the foregoing testimony, standing alone, constituted substantial evidence but argues that when that testimony is considered with the testimony of another doctor who testified for the defendant to the effect that while plaintiff could work he was not able to do the job of a brakeman on a freight train day after day, there is a conflict in defendant’s evidence which destroys the substantiality and probative force of the testimony of both doctors.

That contention overlooks the rules that a party is not bound by the testimony of one of his witnesses in so far as such testimony is contradicted by that party’s other evidence and a “jury may believe all of the testimony of any witness or none of it, or may accept it in part and reject it in part; just as the jury finds it to be true or false when considered in relation to the other testimony and the facts and circumstances in a case.” Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295, 298 [4, 5].

It follows from the application of the foregoing established principles that the jury was entitled to believe defendant’s medical evidence to the effect that plaintiff had sustained only temporary injuries which had not disabled him for any great length of time; and from defendant’s medical evidence as a whole, that by November 14, 1961, plaintiff’s prior earning capacity was restored; and thus to find that his loss of wages had not exceeded a maximum amount of $3,300 (the jury might well have found plaintiff’s loss of earnings need not have been in excess of $2,500). Plaintiff’s only medical expense was a doctor’s bill of $160. It seems apparent, therefore, that there was substantial evidence justifying the jury’s award of $5,000 and thus that the trial court did not abuse its discretion in overruling plaintiff’s new-trial assignment that the verdict was inadequate.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM:

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

All concur.


author: HOGAN, Judge.

text:
    CROCKETT OIL COMPANY, Plaintiff-Appellant, v. Eugene C. EFFIE, Defendant-Respondent.
    No. 8204.
    Springfield Court of Appeals. Missouri.
    Jan. 6, 1964.
    Charles D. Tudor, Joplin, for plaintiff-appellant.
    Douglas & Douglas, Herbert Douglas,. Neosho, for defendant-respondent.
   HOGAN, Judge.

This appeal is taken from an order denying plaintiff’s motion to quash an execution. So far as they are material to a disposition of this appeal, the facts are that some time prior to November 8, 1961, the plaintiff brought suit on an open account against the defendant, and the defendant filed a counterclaim. On November 8, 1961, a trial resulted in a judgment for the defendant on his counterclaim. On November 22, 1961, the plaintiff filed a timely motion for a new trial. Ninety-one days after the motion was filed, on February 21, 1962, the "trial court acted upon the plaintiff’s motion, granting a new trial upon the ground that the verdict of the jury was against the weight of the evidence.

Nothing further was done until September 4, 1962, when the defendant sued out an execution on the judgment rendered November 8, 1961. It is conceded by the parties that the execution issued in due form.

The plaintiff thereupon moved to quash the execution. The defendant filed a responsive pleading and the matter was argued in the trial court. Though it is not material on this appeal, it is suggested in the briefs that a first execution was returned unsatisfied, a second issued, and that a second motion to quash was also filed. In any event, it is apparent that the issues on both motions were the same and the trial court, after hearing arguments, denied the motion to quash. The plaintiff, the judgment debtor, has appealed.

In this court, the plaintiff has advanced three principal arguments, variously stated, in support of its contention that the trial court erred in denying the motion to quash. First, the plaintiff maintains that the state ■of the record itself prevented the issuance of an execution. In this connection, it is argued that there was a final order of record setting aside the judgment upon which the execution was based; this order, plaintiff says, was neither void on its face nor a nullity, and since it had not been attacked by motion or otherwise it precluded the issuance of an execution. Somewhat in the same vein, plaintiff argues that since the order was valid on its face and had become final without appeal, it could not properly be challenged collaterally on a motion to quash. In support of these first two arguments, the plaintiff cites such cases as Flynn v. Janssen, Mo., 266 S.W.2d 666, a later opinion in the same case, Flynn v. Janssen, Mo., 284 S.W.2d 421, and Brand v. Brand, Mo., 243 S.W.2d 981. As an alternative argument, the plaintiff contends that since the defendant failed to appeal or otherwise attack the order granting a new trial and consented to a retrial of this case in the fall of 1962, the defendant has waived any irregularity or lack of jurisdiction to enter the order for a new trial. In support of this proposition, we are cited to the cases of Berry v. Chitwood, Mo., 362 S.W.2d 515, and State ex rel. McKenzie v. LaDriere, Mo.App., 294 S.W.2d 610. The defendant simply answers that since the trial court lost jurisdiction of the cause on February 20, 1962, ninety days after the motion for new trial had been filed, the order granting a new trial was a nullity.

Examining the plaintiff’s assertion that the state of the record precluded the issuance of an execution, we see that it involves the basic assumption that the order granting a new trial was not intrinsically void, but only erroneous or irregular. This involves, we believe, a consideration of the purpose and effect of Rule 78.04, which now provides that if the motion for new trial is not passed on within ninety days, it is deemed denied for all purposes, provided that the ninety-day period shall be computed to exclude any time during which the trial court’s power to act is suspended because of an order of a superior state court, or removal of the action to a Federal court. The precise question here is whether the expiration of ninety days after filing a timely motion for new trial (assuming, of course, the proviso does not apply) divests the trial court of jurisdiction, so the order here may be said to be a nullity, or “void on its face.”

Under the old practice — prior to the adoption of the 1943 Code — the trial court had discretionary power to grant a new trial of its own motion at any time during the term, even though no motion for new trial was filed, or if the motion was untimely. This discretionary power to grant a new trial of the court’s own motion lapsed at the end of the term. On the other hand, prior to the adoption of the 1943 Code, were a timely motion for new trial filed, the court could continue the motion and rule on any specified ground of error at a subsequent term. In some instances, the disposition of a motion for new trial was prolonged for an unconscionable time, and some authorities concluded at the time Rule 78.04 was originally enacted that its purpose was to set a peremptory time limit upon the trial court’s right to act on a motion for new trial. This conclusion is strengthened by the fact that it was also provided by Section 6(b) of the Code (which in slightly modified form is now Rule 44.01(b) (2)) that the court “ * * * may not enlarge the period for filing a motion for or granting a new trial * * *.” In our view, these two rules, considered together, make it plain that when the time limited by Rule 78.04 expires, the trial court’s jurisdiction lapses. In the instant case, therefore, when the trial court attempted to grant a new trial ninety-one days after the plaintiff’s motion was filed, it acted in excess of its jurisdiction.

This does not dispose of the appellant’s contention that the order was not “void on its face.” While the phrase “void on its face” is somewhat imprecise, it is clear that the invalidity need not appear on the face of the judgment alone; a judgment or order may be said to be intrinsically void, or “void on its face,” if lack of jurisdiction appears from the record. State of Missouri ex rel. and to Use of Stormfeltz v. Title Guaranty & Surety Co., 8 Cir., 72 F.2d 595, 598 [8, 9], cert. den. 294 U.S. 708, 55 S.Ct. 404, 79 L.Ed. 1242; Caruthersville School Dist. No. 18 v. Latshaw, 360 Mo. 1211, 1219, 233 S.W.2d 6, 9 [4-7]; State ex rel. National Lead Co. v. Smith, Mo.App., 134 S.W.2d 1061, 1069 [18, 19]. In this particular instance, an examination of the record itself would show that the order for a new trial was made after the expiration of the time limited by Rule 78.04. When this time passes, the trial court is simply without authority to act on the motion. Therefore, since the record itself shows the trial court’s want of authority to grant a new trial at this particular time, the order is not a mere erroneous exercise of the court’s jurisdiction; it is void for want of jurisdiction and is subject to collateral attack. State ex rel. Lambert v. Flynn, 348 Mo. 525, 532, 154 S.W.2d 52, 57; Aetna Ins. Co. v. O’Malley, 342 Mo. 800, 814-815, 118 S.W.2d 3, 9-10; Gray v. Clement, 286 Mo. 100, 109, 227 S.W. 111, 113; Maxey v. Maxey, Mo.App., 212 S.W.2d 810, 811 [1].

We do not believe plaintiff’s cited cases hold to the contrary. The Flynn cases, supra, 266 S.W.2d 666 and 284 S.W.2d 421, carefully note, 266 S.W.2d at 670, that “ * * * the court which entered [the order] had jurisdiction of the parties and of the subject matter and had jurisdiction to enter the particular order. * * * ” It is this so-called “third essential,” jurisdiction to enter the particular order, [see State ex rel. Lambert v. Flynn, supra, 348 Mo. at 532, 154 S.W.2d at 57] which is lacking- in the instant case, for the trial court’s authority to act in any manner on the motion for new trial terminated on February 20, 1962. It is also true that a motion to quash an execution cannot be substituted for an appeal, Flynn v. Janssen, supra, 266 S.W.2d at 671, but there is no showing here that the merits of the motion for new trial were considered when the motion to quash was heard. The trial court’s inquiry was directed only to the question of jurisdiction, and it is elementary law that a judgment or order which is really void may be attacked in any kind of proceeding. McCoy v. Briegel, Mo.App., 305 S.W.2d 29, 34-35 [1-5] ; Smethers v. Smethers, Mo.App., 263 S.W.2d 60, 62. We must therefore rule against plaintiff on the contentions: (a) that the order for a new trial was valid on its face, and (b) that it could not be attacked collaterally by a motion to quash the execution.

Plaintiff further maintains that the defendant’s consent to a retrial of the case— “in the fall” — precludes any objection to the untimeliness of the order for a new trial. We are here cited to Berry v. Chitwood, supra, 362 S.W.2d 515 and State ex rel. McKenzie v. LaDriere, supra, 294 S.W.2d 610, among other authorities; but, in our view, neither of those cases controls the instant situation. All that the record shows —as counsel concedes on argument here— is that the defendant’s attorney, at some time subsequent to the order for new trial, said “let’s wait until this fall and we will try this thing again.” There is no attempt to show here that the defendant himself ever consented to a retrial on the basis of the order of February 21, 1962.

However, even if the defendant had actually agreed to overlook the defect present on this record, that would not have conferred jurisdiction upon the trial court. The judgment had become final on February 20, 1962, and thereafter the trial court was without authority to act. The parties could not confer jurisdiction over the subject matter of the action by agreement. As stated in State ex rel. Lambert v. Flynn, supra, 348 Mo. at 532, 154 S.W.2d at 57, when a court lacks jurisdiction (or “competency”) to decide a particular question because its power to decide is limited under a public policy established by statute or otherwise [here Rule 78.04], the lacking element of jurisdiction cannot be conferred by consent. In the case at hand, the trial court could not consider the merits of the motion for new trial after ninety days. Consent would not change this situation nor confer jurisdiction upon the court.

For the reasons indicated, the judgment is affirmed.

RUARK, P. J., and STONE, J., concur.

      . All references, unless otherwise noted, are to BSMo. (1959), V.A.M.S. and V.A.M.R.

      . For the background of this proviso, which was added to Section 118 of the 1943 Code when the present Civil Buies were adopted in August 1959, see West-hues, Deficiencies of the Code, 3 St. Louis U. Law Journal 350, 353.

      . Ewart v. Peniston, 233 Mo. 695, 709-710, 136 S.W. 422, 425-426; Williams v. Kansas City Southern Ry. Co., 156 Mo.App. 675, 678-679, 138 S.W. 44, 45; Head v. Randolph, 83 Mo.App. 284, 287-288. This discretionary power has been preserved by Rule 75.01.

      . Beer v. Martel, 332 Mo. 53, 61, 55 S.W.2d 482, 484-485 [12-15]; Boyer v. Missouri Pac. R. Co., Mo., 293 S.W. 386, 387 [1-3]; Arnold v. Arnold, Mo., 222 S.W. 996, 1000-1001 [8]; Gray v. Missouri Lumber & Mining Co., Mo., 177 S.W. 595, 596 [2, 3].

      . As Section 118 of the Civil Code; later it was codified as Section 510.360 in the revisions of 1949 and 1959.

      . See Hyde and Douglas, The Civil Code Act of 1943, 2 Carr, Mo.Civ.Proe., p. 562, “ * * * There have been instances of motions for new trial being held under advisement for a year or more. Under this new provision [Section 118, now Rule 78.04] they cannot be held under advisement more than ninety (90) days.”

      . Baker v. Brown’s Estate, 365 Mo. 1159, 1163, 294 SW.2d 22, 25-26; Steuernagel v. St. Louis Pub. Serv. Co., 361 Mo. 1066, 1072, 238 S.W.2d 426, 429 [4]; Kattering v. Franz, 360 Mo. 854, 856, 231 S.W.2d 148, 149 [1]; McPike v. St. Louis County Bank, Mo.App., 193 S.W.2d 961, 962 [3, 4]. In some actions, of course, the jurisdiction of the court is a continuing jurisdiction. See, e.g., Schenberg v. Schenberg, Mo.App., 307 S.W.2d 697, 702; § 452.070, pertaining to child custody and alimony; § 456.210, 456.220, pertaining to the administration of certain trusts. Also, certain remedies are available to correct, vacate or enjoin enforcement of final judgments; see Berry v. Chitwood, supra, 362 S.W.2d at 517-518; Comment, 28 Mo.L.R. 281. We are not concerned with these exceptions here.

      . Simmons v. Friday, 359 Mo. 812, 825, 224 S.W.2d 90, 98; State ex rel. Lambert v. Flynn, 348 Mo. at 532, 154 S.W.2d at 57; United Cemeteries Co. v. Strother, 342 Mo. 1155, 1161, 119 S.W.2d 762, 765 [1-5]. Cf. Schenberg v. Schenberg, supra, n. 7, 307 S.W.2d at 702 [13]. See also Kory v. Dodge, 174 Ark. 1156, 298 S.W. 505, 506 ; 21 C.J.S. Courts, § 85, pp. 127-131.


author: RUARK, Presiding Judge.

text:
    Royce ZINK and LeLoie Zink, Plaintiffs-Respondents, v. The PITTSBURG & MIDWAY COAL MINING CO., a corporation, and Spencer Chemical Company, a corporation, Defendants-Appellants.
    No. 8210.
    Springfield Court of Appeals. Missouri.
    Jan. 8, 1964.

      Michael J. Bogutski, Kansas City, Stin-son, Mag, Thomson, McEvers & Fizzeff Kansas City, of counsel, for defendants-appellants.
    John M. Belisle, Osceola, for plaintiffs-respondents.
   RUARK, Presiding Judge.

This is defendants’ appeal from a judgment for plaintiffs based on a jury verdict in the sum of eight thousand dollars. . We will refer to the parties as designated below.

The petition combined in one count several possible causes of action in one conglomerate mass. Too lengthy to set forth verbatim, it charged that plaintiffs gave defendants’ assignors and privies two separate coal mining leases on two separate and distinct tracts of land, one of 180 acres, another of 240 acres; that in said leases defendants contracted to mine the land in a good and workmanlike manner; that defendants drilled such land to determine whether it would be practicable and profitable to mine; that parts of said land were underlain with Tebo coal and parts were underlain with Weir-Pittsburg coal; that Weir-Pittsburg vein coal and Tebo vein coal, when mixed in proper proportions, were salable; that, as to the 180-acre tract, defendants “warranted unto the plaintiffs” that by actual tests the land was “coal land and would be mined complete, and plaintiffs relied upon said warranties” and tore down improvements of the value of $15,000 to enable defendants to mine said tract; and that defendants constructed, cut, and built unnecessary and unreasonable roads across said 180 and so destroyed its value but mined only 70 acres of the 180 and left 110 acres, 80 acres of which is underlain with coal, unmined; that had the defendants mined the whole 180, plaintiffs would have received therefrom in excess of $48,000 in royalties, whereas in fact they received only $20,975; and that defendants have failed and refused to mine the balance of the 180 tract.

As to the 240-acre tract, plaintiffs charge that, contrary to good workmanlike methods, the defendants cut unnecessary drainage ditches on 70 acres of unmined land so as to destroy the value of such unmined portion of the 240-acre tract. The prayer was for $60,000 actual and $15,000 punitive damages.

On the taking of evidence, the plaintiffs, among other things, introduced evidence as to quantity of unmined coal left on the 180 tract and computations showing the expected royalty which could have been derived based on the royalty fixed in the written lease. According to plaintiffs’ witness Crockett, approximately 80 acres, said to have been underlain with Weir-Pittsburg coal, were not mined. On cross-examination, he left the amount of this unmined coal acreage somewhat in doubt. Computing royalty at fifteen cents per ton, he calculated the to-be-expected royalty at $283.80 per acre; for the unmined portion $22,704, As to this 180-acre tract, plaintiffs submitted and the court gave instruction numbered two, which is as follows:

“The Court instructs the Jury, that if you find and believe from the evidence herein, that the officers, and agents of the defendants or the officer, and agents of their predecessors, companies, did contract and agree with the plaintiffs herein, that prior to the laying out of truck road, and drainage ditches, on that portion of the 180 acres tract, underlain with Weir-Pittsburg Coal, given and described in evidence that test pitts would be dug and test made of the Weir-Pittsburg Coal under said tract, and if you further find and believe that the defendants, or their predecessor companies did run said test, and did advise the plaintiffs that they would mine, and take under their lease, the Weir-Pittsburg vein of coal under said land, if you so find, and if you further find and believe from the evidence that thereafter the plaintiffs did authorize the defendants to lay out and construct drainage ditches, and truck roads across that portion of the 180 acre tract so underlayed with Weir-Pittsburg Coal, and did remove and tear down valuable improvements located thereon, in reliance on the defendants’ agreement to mine and take said coal, if you so find and if you further find that the defendants did mine only a portion of said 180 acres tract underlayed with, Weir-Pittsburg Coal, and then did abandoned and refused to mine the whole of said tract, if so, then you are instructed that your verdict must be for the plaintiffs, and you will award them such damage therefor as you may find and believe from the evidence, they were damaged, thereby on this count, of their petition.”

By defendants’ instruction numbered eight, the court told the jury they could not award damages for roads or ditches on the 180-acre tract, and by defendants’ instruction numbered twelve, the jury were instructed that defendants were not required to mine unmerchantable coal.

As to the 240-acre tract, plaintiffs submitted on failure to mine in a workmanlike manner by cutting and constructing unnecessary roads and ditches. We will return to this 240-acre tract later herein.

Plaintiffs’ measure of damages instruction was as follows:

“The court instructs the jury that if you find the issues in favor of the plaintiffs then you will award them such sums in damages as you find and believe from the evidence they have suffered all to be stated in one lump sum.”

The two leases involved are too lengthy to set forth here but are substantially as follows: Plaintiffs leased to defendants’ predecessors and alleged privies with “the right to prospect said premises for coal and to mine and remove by strip, surface or open face mining, quarry, shaft, slope, drift, or any other method of mining the coal on, in and underlying said premises, and to store, prepare for selling and sell said coal.” Right of ingress and egress was granted. The leases extended for fifteen years and so long thereafter as coal “is” being produced in paying quantities from said premises. Lessee was granted the right to use so much of the surface of said premises as may be required, necessary, or convenient for any and all purposes incidental to or connected with the prospecting, mining, removal, preparation, and selling of said coal, with right in the lessee to transport said coal to or from adjoining, nearby lands. Also granted was the right to make excavations, to divert water courses in any manner lessee might deem necessary or convenient, together with the right to drain and transport water from any pit working place over or through the premises. It was further provided that such leases might be worked in conjunction with other lands, in connection with which lessee was granted all necessary or convenient rights-of-way for ditches, water courses and ways, and rail and vehicle transportation over the. leased land, even though mining on the leased premises might have ceased. The lessors expressly waived all lateral, subad-jacent, adjoining, and other support as to any and all of said premises. The only specific penalty or restriction imposed was that lessee would pay for damage done to fences or crops in prospecting for coal.

Lessee was required to pay a royalty of fifteen cents per ton on all coal mined, removed, and sold but was not required to pay any royalty on rotten, dead, or unmer-chantable coal. “Pyrites” and “sulphurs” and refuse materials removed in mining operations might be disposed of without payment of royalty. Lessee was required to conduct its operations in a good and workmanlike manner.

The tracts involved were partially underlain with a vein of what is called “Tebo” coal. The Tebo, in general, lay fairly shallow and so was mineable by use of shovel. There had been discovered in the area a deeper vein of coal known as Weir-Pittsburg. Some exploration had been going on with respect to Weir. It is in respect to the failure to mine this Weir on the 180 tract which brings the claim of violation of contract. At the time of the occurrences which plaintiffs contend created a verbal contract to mine all of the Weir on the 180 tract, defendants were already mining Tebo on the (apparently adjoining or cornering) 240 tract. Weir (and also Tebo) had been discovered on the 180. Plaintiffs had a frame house, silo, and some shed buildings on the south side of the road along the north side of the 180. Plaintiff Royce Zink says that defendants had staked off five acres around these improvements with the idea that such area would not be mined. In the explorations in regard to the new and deeper vein of Weir (necessary to mine with drag line) it was found that it contained a high degree of sulphur and as such was unmarketable, but defendants decided that it might be mined and marketed by mixing it with Tebo on an approximate basis of twenty-five per cent Weir to seventy-five per cent Tebo. The defendants employed plaintiff Zink, who was engaged in construction business, had some machinery, and had been engaged in strip coal mining operations on his own, to dig a test pit at some place not clear, but probably in the northeast portion of the 180. The defendants also opened a test pit on an 80-acre tract which they had under lease immediately west of plaintiffs’ 180. Samples were taken, and then, according to Zink, “They came back and advised me that this coal would be mined, and asked me if I, then, if I wouldn’t move these buildings, that they would take all this coal clear out to the highway, clear out to the public road, and that was my agreement with them, if this coal tested to where they could use it, and they did test it and advised me that it was marketable coal and that they would take the full amount from this line here clear dozvn to here. -We did not agree to take the Pittsburg-Weir vein out from under the Tebo vein.” And again, “ * * * he came to me and told me that they had made their tests and they would take this coal, and wanted to know how soon I could get these buildings moved off, because our agreement was we should move them if they decided to take the rest of this coal.” This agreement, if it was an agreement, is denied as such by defendants. The undisputed evidence is that defendants were anxious to put a drainage ditch running east and west alongside the road on the north side of the 180 and at or in front of the site of plaintiffs’ improvements. This was in the area underlain with Tebo. The plaintiffs did remove their improvements onto another farm which they owned (in doing so it was necessary to remove one room of the house), and the drainage ditch was dug. The area in that portion of the tract (under and around where the improvements had been) was stripped, and plaintiffs got their royalty for it. Apparently, at about the same time stripping of Tebo was going on in this area, defendants also began mining Weir in another portion of the 180 and, also, at the same time, defendants conducted a drilling-testing operation to further explore the Weir deposit. Trouble developed in the quality of Weir, both in regard to sulphur content and, in some areas, in regard to “bone” and slate and other impurities. Extensive redrilling and testing was done. Operations (for Weir) were commenced at more than one location on the tract and then abandoned. The vein was uncovered in some places and then not mined because of the condition of the coal. Finally, after several attempts, mining was abandoned on this tract. In all, approximately a total of 41.9 acres of Tebo and 27.8 acres of Weir was mined on the 180 and royalties paid thereon.

Still adverting to the 180-acre tract, defendants pleaded the statute of frauds, Section 432.010 RSMo 1959, V.A.M.S., obj ected at the trial, and rely upon the statute here. There seems to be no contention that the statute is not applicable. The leases ran for fifteen years.

Plaintiffs-respondents say that the enforceability of the verbal agreement is removed from the operation of the statute of frauds because plaintiffs fully performed, such performance having consisted of the moving of the improvements and in permitting the defendants to lay out haulage roads on ground not underlain with Tebo and in digging water courses on the tract. While there appears to be some division of authority in Missouri, there are instances in which it is said that a full performance by one of the parties to a verbal contract “takes the contract out of the statute of frauds” and makes it enforceable in an action at law. But the creation of a contract, by performance or otherwise, is a different thing from the destruction of one already made. Once a written contract has been executed, its subsequent modification to the extent of changing its terms in a material manner and so, in effect, destroying the contract as written, by proof of a verbal agreement, does violence to the statute of frauds and the parol evidence rule. Hence the general rule that the modification must likewise be in writing. The purpose of the statute of frauds is to guard against the perjury which might be induced by the ease of establishing obligations by word of mouth. 49 'Am.Jur., Statute of Frauds, § 23, p. 383. Equity courts have enforced unwritten contracts “within the statute” whenever necessary in order to prevent such statute’s being used as a shield for fraud. Carlin v. Bacon, 322 Mo. 435, 16 S.W.2d 46, 69 A.L.R. 1. But the distinctions between law and equity remain, and, where no fraud is involved, the reason for applying the equity rule in a court of law should fail. Austin & Bass Builders, Inc. v. Lewis, Mo., 359 S.W.2d 711. We believe the proper rule is that destruction of a written contract within the statute by parol should not be accomplished in a court of law. Last Chance Mining Co. v. Tuckahoe Mining Co., supra, Mo.App., 202 S.W. 287, and cases cited.

Modifications of the written contract have been permitted if the so-called “modification” is, in reality, a separate and distinct contract although concerning the same subject matter. In such a situation the new contract stands on its own feet independent of the original contract. Such separate and distinct contract is distinguishable from an obligation which is merely supplementary to the original obligation. See Beckers-Behrens-Gist Lumber Co. v. Adams, Mo.App., 311 S.W.2d 70, 74; Hart v. Riedel, supra, Mo.App., 51 S.W.2d 891.

In the cases where the parol undertaking is to be considered as having created a new obligation, the undertaking and obligations therein expressed and said to have been created must be positive, clear, specific, definite, and so unequivocal as to leave no doubt as to the intention of the parties to change what had previously been in writing. There must be a clear assent to the same thing. 17A C.J.S. Contracts § 377, p. 435; Reed on the Statute of Frauds, Vol. 2, § 441; Luckey v. St. Louis & S. F. R. Co., 133 Mo.App. 589, 113 S.W. 703; Davis v. Holloway, 317 Mo. 246, 295 S.W. 105(3). And, as in all contracts, there must be a new and valid consideration. The performance which is claimed as a consideration for the new (verbal) contract must be one which is referable solely to the oral contract and not such as might reasonably be referable to the original contract. And (in considering such performance) a mere nonaction is not “performance” either partial or complete. 49 Am.Jur., Statute of Frauds, § 551, p. 856; Hawkins v. Studdard, 132 Ga. 265, 63 S.E. 852.

The written lease contained no reservation in regard to the improvements or the ground under and around them. The only item for which defendants were required to pay damages was destruction of fences and growing crops. The lease expressly waived all lateral, subadjacent, adjoining, and other support. Certainly the defendants would not have had the right to destroy such improvements unless necessary and convenient to the mining purposes. But the improvements sat upon and were surrounded by “Tebo” land (apparently some forty acres of it), and defendants had the right to mine under the improvements; or, as defendants’ witness testified, they could mine “around them.” This last would have left such improvements sitting in a wasteland, as the exhibits show the land became in that area. The act, “performance,” of the plaintiffs in salvaging such improvements by moving them onto another farm is just as consistent and referable to conduct under the written contract as it is with a new, different, and contradictory verbal agreement.

As to the permitting the digging of ditches and the making of truck hauling roads. While the written lease gave defendants the right to cut ditches and establish necessary and convenient roads, we do not find in the record any positive or affirmative act of the plaintiffs in regard to such roads and ditches. Plaintiffs’ conduct in respect to such roads and ditches, if there were any, was nonaction rather than performance, full or otherwise. Nor, if it were performance, was it necessarily inconsistent with the terms of the written lease,

Nor do we believe that the testimony of the plaintiff established a verbal contract which was sufficiently definite, clear, and specific as to the mutual obligations. The testimony was that defendants’ agent said “that they would take all this coal clear out to the highway * * * if this coal tested to where they could use it, and they did test it and advised me that it was marketable coal and that they would take the full amount from this line here clear down to here.” Is this to be construed as an agreement to pay for all the coal, Tebo and Weir?; rotten, bone, slate, sul-phurous, or such coal as is marketable?; or such coal which is operatively mineable and could be produced in paying quantities ? What does “here clear down to here” mean? The mere posing of the questions demonstrates that the agreement, if it was an agreement, was not clear, definite, and specific.

For the foregoing reasons, we believe that plaintiffs have not established a performance under a verbal agreement which “takes the case out of” the statute of frauds.

Referring to plaintiffs’ instruction numbered four. Since the recovery as to this 180-acre tract was sought on contract and the theory was that defendants were required to take and pay for a certain quantity of coal, we think the instruction should have furnished some guide to the jury as to the measure of damages. See Johnson v. Girvin’s Estate, Mo.App., 370 S.W.2d 163, 168. As it is, considering the nature of the case and the wide range which the testimony 'took, the jury were left with carte blanche to fix damages.

It may be that plaintiffs have a cause of action against the defendants for the failure to conduct their operations on this 180-acre tract in a reasonable and workmanlike manner, whereby they caused injuries to the land for which plaintiffs are entitled to damages, but that is not the theory upon which the case was tried and submitted.

As to the 240 acres. This was apparently Tebo land. One hundred twenty-six acres of it were mined. The petition alleged unworkmanlike mining methods in the construction of unnecessary drainage ditches. The instruction (numbered three) submitted on unnecessary ditches and roads. We find no claim of unnecessary roads (as to this tract) in the petition, nor do we recall any evidence that the roads so laid by the defendants were unnecessary.

We feel it is not necessary to consider at length the contentions concerning deficiencies of proof in regard to whether the drainage ditches on the 240 were laid out and constructed in a workmanlike manner. We do suggest that the evidence was somewhat indefinite. A statement that the witness “would not recommend” putting a ditch at a certain location, standing alone and without going further and explaining whether the location was unnecessary or improper for the purpose of furnishing drainage according to the problem involved, is insufficient to satisfy the requirement of proof that such was not in accordance with proper mining standards. Plaintiffs may be able to supplement their proof upon a retrial; but, since all of plaintiffs’ claims have been incorporated in one count and submitted for recovery under one sum, the whole cause must be reversed and remanded in any event.

It is so ordered.

STONE and HOGAN, JJ., concur.

      . All emphasis is our own.

      . We will hereafter refer to this as Weir.

      . While the leases did not assign the ores in the ground, they gave the right to remove them as well as the right to disrupt the surface. We think they were at least capable of becoming an interest in the land. Last Chance Mining Co. v. Tuckahoe Mining Co., Mo.App., 202 S.W. 287; Desloge v. Pearce, 38 Mo. 588; Kirk v. Mattier, 140 Mo. 23, 41 S.W. 252; Coerver v. Crescent Lead & Zinc Corporation, 315 Mo. 276, 286 S.W. 3; see Thacker v. Flottman, Mo., 244 S.W.2d 1020.

      . 6 A.L.R.2d, pp. 1111, 1117; Hart v. Riedel, Mo.App., 51 S.W.2d 891; Hyde v. Henman, Mo.App., 256 S.W. 1088; Cochran v. Jefferson County Lumber Co., Mo.App., 132 S.W.2d 32; Hoene v. Edward Gocke Real Estate Co., 230 Mo.App. 175, 91 S.W.2d 137; Deu Friend v. McDermott, Mo.App., 251 S.W.2d 339; Missouri State Life Ins. Co. v. Early, 222 Mo.App. 1118, 13 S.W.2d 1097; see Burk v. Walton, 337 Mo. 781, 86 S.W.2d 92.

      . Ives v. Crawford County Farmers’ Bank, 140 Mo.App. 293, 124 S.W. 23; Fisher v. Miceli, Mo., 291 S.W.2d 845; Pratt v. Schreiber, 213 Mo.App. 268, 249 S.W. 449; Roburt v. Holmes, 213 Mo.App. 195, 248 S.W. 646; Rucker v. Harrington, 52 Mo.App. 481.

      . Reed on the Statute of Frauds, Vol. 2, § 441; Newman v. Bank of Watson, 70 Mo.App. 135; Eastern States Refrigerating Co. v. J. W. Teasdale & Co., Mo.App., 211 S.W. 693; Hoene v. Edward Gocke Real Estate Co., supra, 230 Mo.App. 175, 91 S.W.2d 137; see Corbin on Contracts, § 307.

      . 17A C.J.S. Contracts § 376 p. 428(5); Reed on the Statute of Frauds, Vol. 2, § 445; 49 Am.Jur., § 535; p. 835; Reigart v. Manufacturers’ Coal & Coke Co., 217 Mo. 142, 117 S.W. 61; Rexite Casting Co. v. Midwest Mower Corp., Mo.App., 267 S.W.2d 327; Fuller v. Presnell, Mo.App., 233 S.W. 502; State ex rel. Hoyt v. Shain, 338 Mo. 1208, 93 S.W.2d 992; Warren v. A. B. Mayer Mfg. Co., 161 Mo. 112, 61 S.W. 644.

      . Willey v. Talkington, Mo., 312 S.W.2d 77; Meegan v. Illinois Surety Co., 195 Mo.App. 423, 193 S.W. 899; Dimick v. Snyder, Mo.App., 34 S.W.2d 1004, 1007; see Jones v. Linder, Mo., 247 S.W.2d 817; Roberts v. Clevenger, Mo., 225 S.W.2d 728, 729-730.


author: CULLEN, Commissioner.

text:
    Dallas DUNN, Appellant, v. JACKSON PURCHASE RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee.
    Court of Appeals of Kentucky.
    Oct. 18, 1963.
    Rehearing Denied Jan. 31, 1964.
    John C. Lovett and Lovett, Lovett & Lov-ett, Benton, for appellant.
    Waller, Threlkeld, Whitlow, & Byrd, Paducah, for appellee.
   CULLEN, Commissioner.

Dallas Dunn received serious injuries from electrical shock while engaged in inserting a length of copper pipe into a water well. High voltage lines of the Jackson Purchase Rural Electric Cooperative Corporation ran through the top branches of a tree in the vicinity of the well. The pipe which Dunn was handling either came in direct contact with the power lines or it received an electrical charge by contact with branches of the tree which had become energized by reason of their closeness to the power lines. On the theory that his injuries were caused by negligence of the Co-op in maintaining the lines Dunn sued the Co-op for damages. The trial court directed a verdict for the Co-op at the close of the plaintiff’s evidence and entered judgment dismissing the action. Dunn has appealed.

As concerns negligence of the Co-op there was evidence that the limbs of the tree, which stood in the back yard of a private residence between the dwelling house and the well, had grown closely around the power lines, which were uninsulated. Several years prior to the accident the Co-op had trimmed the branches away from the wires but since that time had not done any trimming. Under the decision in Green River Rural Electric Co-op. Corp. v. Blandford, 306 Ky. 125, 206 S.W.2d 475, this evidence was sufficient to warrant a finding of negligence.

The negligence of the Co-op would consist either of causing concealment of the wires or of creating a situation in which the branches of the tree could become energized by contact with the wires (there was testimony by an electrician that the latter could happen). However, any negligence in regard to concealment could not have been a cause of Dunn’s accident because he knew the wires were there and as^to him they were not concealed. (It makes no difference that Dunn erroneously thought the wires were insulated. See Vaught’s Adm’x. v. Kentucky Utilities Co., Ky., 296 S.W.2d 459; Carr v. Kentucky Utilities Co., Ky., 301 S.W.2d 894; Jones v. Kentucky Utilities Co., Ky., 334 S.W.2d 263; Kentucky Power Co. v. Geveden, Ky., 343 S.W.2d 381; Jackson County Rural Electric Cooperative Corp. v. Massey, Ky., 346 S.W.2d 484.) Therefore, in order to establish causation, it was incumbent upon Dunn to introduce proof warranting a finding that the pipe did not come in contact with the wires, but only with the tree branches.

Although the question is close, we think Dunn’s evidence was sufficient to permit an inference to be drawn, rather than a mere speculation to be made, that the pipe touched only the branches and not the wires. This evidence was: (1) The testimony of Dunn’s helper that the pipe “was angled away from the high line;” (2) testimony of two electricians that after the accident the pipe did not have a black or burned mark on it, where as ordinarily there would have been such a mark had the pipe come in direct contact with the wires; (3)testimony that the pipe (the lower end of which was being held by Dunn as he stood in the well pit below the surface of the ground) was only 24 or 25 feet long, while the wires were from 27 to 30 feet above ground level.

This brings us to the question of contributory negligence. It is our opinion that Dunn was not as a matter of law chargeable with knowledge of the danger of touching the tree branches with the pipe. However, we think a jury could find that he should have known of the danger in view of his knowledge that the wires ran through the branches and that the branches were wet from rain. Our conclusion is that the issue of contributory negligence was for the jury under an instruction predicating a finding of contributory negligence upon belief by the jury that a reasonably prudent man should have realized the danger of serious harm from maneuvering the pipe among the branches near the wires.

The instruction on the defendant’s negligence should require the jury to determine, as a preliminary fact, whether the pipe struck the branches or the wires, the jury being instructed that they must find for the defendant if they believe the pipe struck the wires.

A question is raised concerning the refusal of the trial court to permit the plaintiff’s expert witnesses on electricity to answer certain questions. It will be sufficient to say that the court should have permitted the witnesses to state what properties and behavior electricity would have under circumstances such as were proved to exist in this case, but not to give their opinion as to how the plaintiff did in fact receive his injury. See Darlington v. Owen County Rural Elec. Co-op Corp., Ky., 299 S.W.2d 599.

The judgment is reversed with directions for further proceedings in conformity with this opinion.


author: EDWARD G. HILL, Special Commissioner.

text:
    Howard NORRELL, Appellant, v. Paul JUDD et al., Appellees.
    Court of Appeals of Kentucky.
    June 28, 1963.
    Reeharing Denied Jan. 31, 1964.
    William E. Johnson, Darnell & Johnson, Frankfort, for appellant.
    Max M. Smith, Allen Prewitt, Ben B. Fowler, Dailey & Fowler, Frankfort, for appellees.
   EDWARD G. HILL, Special Commissioner.

This is an action by a taxpayer to void a television cable service agreement made between the Frankfort Municipal Housing Commission (herein called “Housing Commission”), a creature of KRS 80.010 et seq., and Community Services, Incorporated (herein called “Community”), a non-profit corporation furnishing television cable service to residents of Frankfort.

Under the agreement, Community agreed to furnish television cable service to tenants of the housing development at its prevailing rates, waiving, however, its regular installation charge of $50. In return the Housing Commission agreed to permit Community to use the electric poles located on the project.

In his complaint, the taxpayer alleged that at the time of the consummation of the agreement the defendant, Joe H. Pennington, was an employee and officer of the Housing Commission and a director of Community. He complains that, because of this fact, the contract is repugnant to KRS 80.080.

In his various pleadings, the taxpayer seeks the following relief:

(1) Judgment voiding the contract;
(2) A declaration of rights regarding the validity of the agreement;
(3) An order requiring the Housing Commission to relieve Pennington of his duties with the Housing Commission;
(4) A declaration of rights regarding the right of Pennington to continue to serve as Executive Director and Secretary-Treasurer of the Housing Commission.

The trial court rendered summary judgment, based on affidavits of certain of the parties, dismissing the complaint. From that judgment the taxpayer appeals.

The trial court based its judgment on the belief that Pennington had no pecuniary interest in the formation and continuation of the agreement. To determine the correctness of this judgment, we must look to the language of the statute.

KRS 80.080 reads in pertinent part as follows:

“No member or employee of a housing commission shall acquire any interest, direct or indirect, in any project or in any property including or planned to be included in any project, nor shall he have any interest, direct or indirect, in any contract or proposed contract for materials or services to be furnished or used in connection with any project.”

Many considerations of public policy enter into conflict-of-interest statutes, such as the one under consideration. See Perkins, The New Federal Conflict-of-interest Law, 76 Harvard Law Review 1113, at page 1118.

Obviously, the first and foremost evil sought to be avoided by this statute is self-dealing by an official or employee, that is, the use of a public office or position for the purposes of self-enrichment. This was the principle which was apparently in the mind of the trial court when it based its judgment on the fact that Pennington would derive no pecuniary benefit from the formation or continuation of the agreement, since his fee for serving Community was fixed.

In deciding the correctness of this judgment, we look to the affidavits filed herein by Pennington made in support of his motion for summary judgment.

Pennington admits in his affidavit that he is the acting manager of the Housing Commission, and that his duties are to administer and manage the operation of the housing project, under the policies fixed by the Housing Commission. He further admits that he is an elected director of Community and that he is currently being paid a fixed fee “for the performance of his duties as director.”

If the performance of Pennington’s duties as director of Community consist, in part, in the procuring of new subscribers for the television corporation, then his interest in performing that duty would be such an “interest” as would bring the case within the prohibitions contained in KRS 80.080. In fact, the procurement of this agreement, if Pennington did in fact procure it, would have been the very thing for which he was being paid by Community.

There is no question of the capacity of the contracting parties to make the agreement in question, absent any direct or indirect .interest on the part of Pennington. We do not feel that the fact that Community is a nonprofit endeavor makes any difference in determining the question of interest on the part of Pennington.

We could point up numerous other avenues of possible financial interest on the part of Pennington, however, we leave their discovery to the ingenuity of counsel.

Taking the affidavits as true, as a matter of law they are insufficient to sustain the judgment.

We turn next to the question of the validity of the agreement. Assuming, argu-endo, that Pennington does have a direct or indirect interest in the agreement in question, does that interest render the agreement void? We think it does.

The cases of Bradley & Gilbert Company v. Jacques, Ky., 110 S.W. 836, 33 K.L.R. 618, and Nunemacher v. City of Louisville, 98 Ky. 334, 32 S.W. 1091, involved statutes very similar to the one in question. We held in those cases that the purpose of such statutes was to prohibit contracts of this character. We feel that the reasons expressed in those cases for holding the offending contracts to be void are as vital today as they were at the time the decisions were rendered, if not more so.

Violation of the statute in question, if any violation did occur, does not automatically disqualify Pennington from continuing his employment with the Housing Commission. The cases cited by appellant to sustain his contention that Pennington is automatically disqualified involve self-executing statutes which declare the office to become automatically vacant upon the happening of a certain prohibited event. No such statute is here involved.

We conclude that appellant has standing as a taxpayer to challenge the validity of this agreement. See Kentucky Utilities Company v. Ginsberg, 255 Ky. 148, 72 S.W.2d 738.

Reversed with directions to set the judgment aside and for proceedings consistent with this opinion.

The opinion is approved by the Court and the judgment is reversed.


author: CLAY, Commissioner.

text:
    Abe POZITZER, d/b/a Spotless Laundry, Appellant, v. W. R. MARTIN CO., Inc., Appellee.
    Court of Appeals of Kentucky.
    May 24, 1963.
    Rehearing Denied Jan. 31, 1964.

      Louis N. Garlove, Louisville, for appellant.
    Robert P. Hobson, Louisville, for ap-pellee.
   CLAY, Commissioner.

In this suit involving appellant’s claim of negligence in the repair of an ironer and appellee’s counterclaim for labor and materials, the trial court, hearing the evidence without a jury, rendered judgment for ap-pellee. The only contention made on this appeal is that the court committed reversible error in denying appellant’s counsel the opportunity to orally argue the case prior to the entry of judgment.

While our Civil Rules provide for argument’in jury trials (CR 43.02(5)), no provision is made for argument on the law or facts in an action tried by the court. The cases cited by appellant relating to jury trials are obviously not in point.

In our opinion permitting oral argument in court actions properly should be a matter within the discretion of the trial judge. This seems to be generally recognized. 89 C.J.S. Trial, § 576, page 353; Annotation in 38 A.L.R.2d 1396. In Peckham v. Family Loan Company, C.A. 5, 262 F.2d 422, it was held that oral argument in a court action was a privilege and not a right. It is not required as a matter of procedural due process. Federal Communications Comm. v. WJR, The Goodwill Station, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353.

While there are cases from other jurisdictions to the contrary, we think this the better rule. Though often the trial judge needs enlightenment in the form of oral argument or briefs, and should freely allow it, if in his sound discretion such argument is unnecessary we see no valid reason wily he should be compelled to hear it.

In any event, in this case the denial of oral argument could not be reversible error because appellant has failed to show prejudice.

The judgment is affirmed.