author: HOUSER, Commissioner.

text:
    Jesse H. MILLER and Hattie P. Miller, his wife, Appellants, v. Alvin G. WATKINS, Respondent.
    No. 48727.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.

      Roberts & Roberts, by Raymond R. Roberts, Farmington, for appellants.
    Dearing, Richeson & Weier, by H. L. C. Weier, Hillsboro, for respondent-defendant Alvin G. Watkins.
   HOUSER, Commissioner.

Jesse and Hattie Miller, parents of seven-year-old Roger Dale Miller, sued Alvin Watkins, owner and driver of a school bus, and William J. Reed, owner and driver of a truck, for $25,000 damages for the death of Roger, who was killed by Reed’s truck while crossing the highway in front of his home to board Watkins’ bus. A trial jury returned a verdict for both defendants. Plaintiffs appealed as to both defendants but later dismissed their appeal as to defendant Reed, and perfected their appeal only as to defendant Watkins.

The negligence charged and submitted as to defendant Watkins was that Watkins, driving his school bus west on the highway, approached a spot where he customarily picked up school children, stopped or almost stopped the bus on the north side of the highway, and having actual or constructive knowledge that Roger lived on the south side of the highway and had to cross the highway to board the bus and that Roger frequently crossed without watching for traffic, and having observed Reed’s truck approaching from the west and that the truck was commencing to stop, negligently signaled truck driver Reed not to stop but to proceed on to the east and pass the bus, intending that Reed rely on the signal; that Reed relied on the signal, drove the truck east past the bus, and struck and killed Roger.

Plaintiffs’ sole point on appeal is that the court erred in giving defendants’ Instruction D-ll, the criticized portion of which we have italicized:

“The Court instructs the jury that in considering the evidence in this case as to whether any defendant was guilty of negligence as defined and submitted in these instructions, you are not at liberty to resort to guesswork, speculation or conjecture, but you must be governed by all the facts and circumstances in evidence and the instructions of the Court, and if, under the evidence and the instructions of the Court, you are unable to determine with any reasonable degree of certainty whether a certain defendant was guilty of negligence, as defined and submitted in these instructions, then the plaintiffs would not be eiv-titled to recover against said defendants and your verdict must be in favor of that defendant; and in this connection, the Court instructs you that under no circumstances are you to be. swayed or influenced by bias, prejudice or sympathy, for or against any party to this action.”

Appellants claim this instruction cast upon plaintiffs an excessive burden of proof. This is a civil action. Plaintiffs were required to prove defendant’s negligence by the preponderance, that is, the greater weight of the credible evidence, Thompson v. Jenkins, Mo.Sup., 330 S.W.2d 802, 804; not beyond a reasonable doubt. Instruction D-ll required plaintiffs to prove defendant’s negligence to a “reasonable degree of certainty.” A certainty is that which is certain or sure. It has the quality of indubitable reality. It is a fact or truth unquestionably established. Its antonym is dubiousness. Webster’s New International Dictionary, Second Ed. To require proof to a reasonable degree of certainty is to require proof beyond a reasonable doubt, which is a higher burden of proof than that required in civil actions. Thompson v. Jenkins, supra; Payne v. Reed, 332 Mo. 343, 59 S.W.2d 43, 47[10], The giving of Instruction D-ll constituted reversible error. Stephens v. Coca-Cola Bottling Co. of St. Louis, Mo.App., 215 S.W.2d 50.

Respondent Watkins claims the judgment in his favor was for the right party and should stand regardless of any procedural error, because plaintiffs failed as a matter of law to make a submissible case of negligence. The jury could have found the following facts: Watkins, driving the school bus west, came over the crest of the hill 600 feet east of the spot where Roger was struck. The highway before him was level and his view was clear. The north side (i. e., the front) of Roger’s house was 29 feet south of the south edge of the blacktop pavement. The front yard of Roger’s home, which was nearly level with the highway, and the east side of Roger’s house, were in plain view of Watkins as he approached. Watkins knew the location of Roger’s house on the south side of the highway and that Roger customarily crossed the highway to board the bus. The place where Watkins customarily stopped to pick up Roger and the two Smith children was a point on the north side of the highway approximately even with the west side of the lot on which Roger’s house was built. The bus was 32 feet long. The rear of the bus in its stopped position at the pickup point would be approximately even with the walk running from the front door of Roger’s house to the highway. There was a car parked in the driveway between Roger’s house and the next house west. The parked car, which was 8 to 12 feet from the pavement, would partially block the view of a child proceeding north from Roger’s house to the highway, looking west for approaching traffic. There were four mailboxes three or four feet south of the south edge of the' pavement, on the west side of Roger’s lot. The mailboxes were 4 feet high. The mailboxes also would partially obstruct the view of such a child. Watkins saw the parked car, and could see the mailboxes, and knew they “would have blocked the view” toward the west. Apparently Watkins was on time as he arrived to make the pickup. Watkins knew Roger and knew that he was seven or eight years old. Roger was “in the habit of coming to the rear of the bus around that way.” Watkins was acquainted with Roger’s habits. Watkins knew that Roger frequently had crossed from the south to the north side of the pavement behind the bus in order to board the bus. Watkins knew that Roger and the Smith children, who lived next door to Roger, had to cross the highway to get to the place where they boarded the bus. Watkins knew that on previous occasions Roger had run out into the highway without looking. It is against regulations for a child to run for the school bus at any time. The regulations required the child to go to the proper cross point in front of the bus, wait until the bus came to a stop, until the stop arm was down, and until Watkins motioned the children to cross the highway, and then walk across with the other two children who boarded at that point. Watkins had corrected Roger and told him that it was dangerous to run across the highway behind the bus, and that he was not supposed to run at all. He had explained the regulations to Roger; had “lectured him” and told him not to do it; had “spoken to him about it a few times,” but Roger “couldn’t seem to understand.” With this knowledge Watkins approached the scene, slowing down to 10 m. p. h. and to a stop at the appointed pickup point, with his school bus lights flashing, but without his cross arm STOP sign down. As Watkins approached the stop he was conscious of the approach of Reed’s two-ton truck, which was carrying a load of large logs. Watkins saw Roger’s house but did not see Roger at any time. When Watkins observed the truck he “took his eye off” Roger’s house. Reed’s truck was approaching' from the west at 25 to 30 m. p. h. Truck driver Reed saw the school bus when the bus was 60-70 feet east of Roger’s house, sensed that it was going slowly, and assumed it would be stopping to load. He saw the flashing lights on the school bus and estimated its speed at 10 m. p. h. As soon as Reed saw it was a school bus he began to apply his brakes to stop, and slowed the truck to 10-15 m. p. h. When the two vehicles were 175 feet apart, Watkins made a gesture with his hand, motioning Reed “to come on through.” Reed did not respond to the gesture, and continued to slow down the speed of the truck, to about 10 m. p. h. Watkins motioned twice more, when the vehicles were 150 feet apart. The school bus was then “pretty nearly in front of” Roger’s house. When Watkins motioned the second time, Reed proceeded to go on through, accelerating to 20-25 m. p. h. The truck was “just about to the bus” when the bus came to a complete stop. When the front of the truck had passed the rear of the school bus Roger was seen by Reed two or three feet south of the pavement, just at the edge of the blacktop, running “as fast as he could run” straight toward the highway. He caught just a glimpse of the child, swung to his left to avoid him, but it was too late and the child was struck down and killed by Reed’s truck. He hit the truck behind the cab, eight feet from the front of the truck. Reed’s view of the child approach had been obstructed by the parked car and the row of mailboxes. Caroline Smith, a 15-year-old schoolgirl, lived in the house immediately west of Roger’s house. She regularly took this school bus. As she came out on her sidewalk that morning she saw the school bus coming west, slowly, when it was about a car’s length east of its regular stopping place. She then saw the truck coming from the west “around the Keaton’s mailbox.” The bus driver, who was stopping, raised his hand in some type of motion, and the bus stopped. When the bus came to a complete stop the truck was “just about to the bus.” She saw Roger, running just about halfway between his house and the highway, when the truck was “about even with the bus.”

Respondent argues that Watkins could not anticipate that the signal would cause the child to be injured; that reasonable minds could not say this would be the natural and probable consequence of his act; that “Watkins could not anticipate that the Miller child would run into the side of the truck”; and that Watkins’ act was not the proximate cause of the death.

The jury could reasonably find that Watkins was negligent in giving the signal; that considering the time, distances, surrounding physical facts and known habits and propensities of the child, Watkins reasonably should have anticipated that Roger would emerge momentarily from the house, which was so near that it would take Roger only a few seconds to reach the pavement; that Roger might be expected to run across the highway toward the rear of the bus; that Roger would not see the truck because of his known inattentiveness to traffic hazards and because his view to the west was partially obstructed; that the truck driver would rely upon and obey Watkins’ signal, come on through without stopping, and pass the point where Roger could be expected to cross the highway; that the truck driver’s view of the child was obstructed, and that the child’s movement and that of the truck might coincide; in short, that giving the signal and “waving the truckdriver through” involved a foreseeable risk of injury to Roger, which Watkins would not have taken in the exercise of the highest degree of care, and that the act of Watkins was a concurring proximate cause of Roger’s death. A driver of a motor vehicle who voluntarily undertakes to signal the driver of another motor vehicle to pass is liable for all damages for all reasonably foreseeable consequences if in the giving of the signal he does not exercise the highest degree of care for the safety of others. Thelen v. Spilman, 251 Minn. 89, 86 N.W.2d 700, 77 A.L.R.2d 1315, quoting Cardozo, J. in Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276, 23 A.L.R. 1425:“ * * * It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. * * * ”

The judgment is reversed and the cause remanded for a new trial.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: STOCKARD, Commissioner.

license: Public Domain

text:
    Edward H. MUELLER and Jessie M. Mueller, Respondents, v. Gilbert H. LARISON and Hattie S. Larison, Appellants.
    No. 48964.
    Supreme Court of Missouri, Division No. 2.
    March 12, 1962.

      Cliff Bailey, Kansas City, for appellants.
    Frank P. Sebree, Kansas City, for respondents.
   STOCKARD, Commissioner.

After an adverse judgment in the trial court the defendants took an appeal to the Kansas City Court of Appeals which properly transferred the case here because title tó real estate is involved. See Mueller v. Larison, Mo.App., 347 S.W.2d 446.

Respondents own the north 37½ feet of Lot 2, Block 8, Ivanhoe Park subdivision, which faces west on Garfield Avenue and extends eastward a depth of 109.8 feet. When the subdivision was originally laid out in 1887 the owner of the land reserved a 22-foot strip of land lying east of and adjoining said Lot 2, and extending north and south between 38th and 39th Streets. This strip was never dedicated to public use as a street or alley. Adjoining Ivanhoe Park to the east lies Aberdeen subdivision. Appellants own Lot 6 of Block 3 thereof which faces north on 38th Street. It is 65 feet wide and 140.1 feet deep, and lies adjacent to Ivanhoe Park. There is a lot between respondents’ lot and 38th Street, but near the east or rear portion of that lot the street jogs sharply to the south and again to the east, and the north line of appellants’ Lot 6 facing on 38th Street, if extended westward to Garfield Avenue, would be about even or possibly one and one-half feet north of the north line of respondents’ lot. In the northeast corner of their lot, and facing east onto the 22-foot strip, respondents have a garage. To the north and east of the garage, and east of the lot north of respondents’ lot, is a rock wall a foot or so in height which is referred to as “a hillock of rock, dirt and iris.” It is not clear whether this wall is located in a portion of the 22-foot strip or in an unused portion of 38th Street, but it is not on respondents’ lot. It blocks a substantial portion of the entrance way to the 22-foot strip from 38th Street.

A survey discloses that when appellants’ lot is located by measurements from a fixed point further east there is an overlapping of the west side of said Lot 6 onto the 22-foot strip by approximately 4.33 feet. During the trial appellants admitted that they made no claim whatever to the 22-foot strip, but they claim to own all of Lot 6, and when this disclaimer is read in context it is evident that they only disclaim any interest in that part of the 22-foot strip not overlapped by their Lot 6.

Prior to the time appellants moved into their house in November 1954, the concrete driveway from the garage extended northward to 38th Street, but the north portion of the driveway veered westerly into the 22-foot strip a distance of 7.5 feet. Respondents presented evidence that “every day” from the time he purchased his home in September 1949, and until December 1954 he used a portion of appellants’ concrete driveway leading southward from 38th Street in order to obtain access to his garage and that the owner previous to him used that part of the driveway within the 22-foot strip “daily” from 1936 to 1949 as a means of access to the garage, and that no objection was made by anyone to that use.

In December 1954, Mr. Mueller attached a basketball “goal” to the east end of his garage, apparently for the use of his son to practice basketball, and Mr. Larison told him that while he could not tell him not to put up the basketball “goal” he was not going to permit the use of his driveway for a playground. Shortly thereafter Mr. Larison placed a stake in the concrete portion of the driveway on what he considered to be the west boundary line of his lot, and he later built a low wall with concrete blocks and placed thereon a fence extending southward past the south line of respondents’ lot. The wall and fence were located on the western boundary of appellants’ lot when the boundary line was located by measurements from a fixed point to the east, but they were also located approximately 4.33 feet into the 22-foot strip. The distance between the rock wall north and east of respondents’ garage and the north end of appellants’ fence was 7.69 feet. Respondents could drive an automobile through this area but it would be close. In order to get an automobile into their garage it was necessary to maneuver it carefully and back it at least twice.

Respondents’ petition was filed in June 1956, and was in two counts. In the first count they alleged that they were the owners of the 22-foot strip east of their lot, and that appellants had erected a wall thereon which interfered with the access to their garage. They prayed that they be adjudged the owners in fee simple of the 22-foot strip; that appellants be required to remove the wall; that appellants be restrained and enjoined from entering upon the land of respondents; and that they recover damages. The second count is specifically stated to be “an alternative count and is intended to be applicable only in the event the wall erected by [appellants] * * * is adjudged to be on [their] land.” By this second count they sought an easement by prescription over a portion of the driveway of appellants for access to their garage; that appellants be required to move the wall from the area over which the easement is requested; that appellants be enjoined from obstructing the driveway; and that they recover damages. The trial court entered findings, of fact and conclusions of law that respondents “are the owners of the north 37½ feet of Lot 2, Block 8, Ivanhoe Park * * * together with the strip of land adjoining on the east 22 feet in width,” and that appellants “are the owners of Lot 6, * * * of Block 3, Aberdeen, * * It also found that respondents, and their predecessors in interest, had “for a period in excess of ten years used, without objections, said concrete driveway and that the use * * * had been open, continuous, visible, uninterrupted and adverse for said period and that as a result thereof [respondents] have an easement by prescription over said driveway.” It then found that the use of the driveway “included the west 4½ feet of Lot 6, Mister’s Resurvey of Block 3, Aberdeen, from 38th Street to a point 12 feet south of the north line of Lot 2, Block 8, Ivanhoe Park.” The judgment entered by the court made no specific reference to Count I or to Count II, but decreed that “plaintiffs have an easement over the west 4½ feet of Lot 6, Mister’s Resurvey of Block 3, Aberdeen, from 38th Street to a point 12 feet south of the north line of Lot 2, Block 8, Ivanhoe Park, which easement will continue in perpetuity and inure to the benefit of plaintiffs’ administrators, successors and assigns.” The judgment also directed the removal of that part of the wall and fence which encroached upon the easement and enjoined any future encroachment, and it also decreed that respondents recover $200 from appellants as damages.

We note that the above findings of fact and conclusions of law are in part inconsistent with themselves and with the judgment entered. The court specifically found that both appellants and respondents were the owners of the overlapping area. However, Count I was necessarily ruled in favor of appellants and Count II was ruled in favor of respondents, and this necessitates the conclusion that appellants were the owners of that part of the area of the 22-foot strip overlapped by their lot.

The record does not disclose that the findings of fact and conclusions of law were requested by either party pursuant to Civil Rule 73.01(b), V.A.M.R., but such voluntary findings and conclusions were not prohibited. Abeles v. Wurdack, Mo., 285 S.W.2d 544, 547. However, the appeal is from the judgment, and the findings of fact and conclusions of law are not binding on this court. Davis v. Ashlock, Mo., 338 S.W.2d 816. In this court-tried case the “appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature.” Civil Rule 73.01(d), V.A.M.R. In doing so we shall review the record de novo, determine the credibility, weight and value of the testimony and evidence, and arrive at our own conclusions of the facts based on the entire record. Pitts v. Garner, Mo., 321 S.W.2d 509; Barker v. Allen, Mo., 273 S.W.2d 191. As pointed out in Schlanger v. Simon, Mo., 339 S.W.2d 825, 828, this court performs these functions only in respect to the specific matters urged by appellants as constituting error. While we ordinarily give due deference to the trial court’s opportunity to see and hear the witnesses and judge their credibility, there is . little conflict in the testimony in this case, and the only occasion for deference is whether certain undisputed testimony or evidence should be believed at all. After making such appellate review, subject to the provisions of paragraphs (a) and (b) of Civil Rule 83.13, V.A.M.R., we shall “award a new trial or partial new trial, reverse or affirm the judgment or order of the trial court, or give such judgment as such court ought to have given, * *

There is no evidence that appellants are the owners of the 22-foot strip of land, and particularly that area overlapped by the description of appellants’ Lot 6, either as a matter of record or by reason of adverse possession. Respondents show that title to this strip of land was reserved to A. J. King in 1887, but they make no showing whatever that record title was ever transferred to them. They do show that for the years 1957 and 1956 they paid taxes, and possibly they and their predecessors in title paid taxes from 1940, on land described as the “N 37.5 ft. Lot 2 Bile 8 also a 22 ft. strip E of & adj.” While the payment of taxes is evidence of a claim of ownership, Woodside v. Durham, 317 Mo. 15, 295 S.W. 772, 53 A.L.R. 884, it does not alone constitute evidence of possession. Brown v. Evans, Mo., 182 S.W.2d 580; Conran v. Girvin, Mo., 341 S.W.2d 75, 91. The only evidence possibly bearing- on adverse possession pertains to the issues under Count II showing a use for the purposes of establishing an easement, not title. We must necessarily hold that respondents failed in their proof of Count I of their petition, and that the finding by the trial court that respondents are the owners of the 22-foot strip, and particularly that part overlapped by appellants’ lot, is not supported by the evidence. The judgment should affirmatively reflect a ruling in favor of appellants on Count I of the petition, and the judgment of the trial court is modified in this respect. This disposes of appellants’ first point to the effect that the trial court “found in part on Count One and at the same time granted full relief as ¡requested in [alternative] Count Two.”

Appellants’ second point is that the judgment, granting respondents an easement by prescription over appellants’ land, was-not supported by substantial evidence. In a case such as this we do not determine only whether substantial evidence exists, although admittedly if it did not exist the granting of the easement could not he sustained, but we as the trier of the facts must determine whether or not an easement should be granted to respondents under all the facts and circumstances revealed by the record.

The easement granted by the trial court was over a strip of land 4½ feet wide and 12 feet long off the west side of appellants’ lot, and after correcting a slight error subsequently mentioned, was limited to the overlapping area of appellants’ Lot 6 and the 22-foot strip. Appellants claim to own all of their Lot 6, and on this appeal respondents urge that the judgment granting them an easement over a portion of the overlapping area be affirmed. This necessarily constitutes an admission by respondents that appellants own that area over which the easement was granted by the trial court. However, this is not a suit to quiet title, and this agreement between the parties as to the ownership of that area has no effect whatever on the claims of anyone else, either as to title or prescriptive rights in the 22-foot strip, and particularly as to that portion overlapped by appellants’ lot. When we assume for purposes of this litigation, limited as it is to the rights only as between appellants and .respondents, that appellants own the area of the 22-foot strip overlapped by their Lot 6 at least for a distance of 12 feet south of the north line of respondents’ lot, the essential question for determination by this court is whether the evidence, when considered in its entirety, demonstrates that respondents have an easement over the designated land of appellants for purposes of access to their garage, that is, by “ ‘adverse user as of right openly and uninterruptedly (continuously) for more than 10 years.’ ” Jacobs v. Brewster, 354 Mo. 729, 190 S.W.2d 894, 896.

The evidence on the part of respondents, although somewhat skimpy, does show an open, continuous, visible and uninterrupted use of a part of the 22-foot strip which is overlapped by appellants’ lot. Mr. Mueller testified that “every day” without objection he used appellants’ driveway from September 1949 to December 1954 to drive his automobile to his garage. The trial court evidently believed this oral testimony. The only testimony which might be considered to be in some respects to the contrary was that of Mr. Larison. He testified that he never saw Mr. Mueller place his automobile in the garage. But Mr. Larison did not move into his house until November 1954, and admittedly Mr. Mueller did not use his garage after the post was placed in the driveway in December 1954. The only evidence of use prior to 1949 was in the form of interrogatories submitted by agreement to respondents’ predecessor in title. While the answers are somewhat cryptic, they are not disputed, and we see no reason why they should not be accepted by us, as they were by the trial court, to show an open,, continuous, visible and uninterrupted use from 1936 to 1949 of that portion of the driveway of appellants located in the strip of land over which the easement was granted by the trial court. There is no direct evidence that the use was adverse, as distinguished from permissive, but it is a reasonable inference. It has repeatedly been held that when one claims an easement by prescription and shows an open, continuous, visible, and uninterrupted use for the prescribed period, the burden is upon the landowner to present evidence to show that the use was permissible, rather than adverse, if he claims it to have been so. Fassold v. Schamburg, 350 Mo. 464, 166 S.W.2d 571; Jacobs v. Brewster, supra; Meyer v. Everett, Mo.App., 235 S.W.2d 130; Smith v. Santarelli, Mo.App., 207 S.W.2d 543. There is no evidence that the use was permissive, and appellants do not make such contention on this appeal. We conclude that the evidence, when considered in its entirety, authorizes the conclusion that respondents have an easement by prescription for access to their garage.over a portion of that part of appellants’ lot which constitutes the overlapping area into the 22-foot strip.

The above conclusion presents the next and last point in appellants’ brief, which is that the court er.red in subjecting the “particular land described in its judgment” to an easement in the absence of evidence “by which the same could be determined and set out with particularity.” In the argument it is asserted that although the judgment creates a prescriptive right over a tract of land 4½ feet by 12 feet in the northwest corner of appellants’ lot, “we have the peculiar situation of an area being subjected to an easement which is not described or measured in any way, either by the pleadings or in the evidence, and such judgment is based solely upon a measurement by [respondents’] counsel after the close of the case *

We cannot agree with this contention. Respondents asked for an easement over a greater area, but their proof, by reason of the answers of their predecessor in title, established no adverse use outside of the 22-foot strip. The evidence does establish the area of the overlap. The court granted the easement over that area of appellants’ lot overlapping the 22-foot strip for a distance of 12 feet southward of the north line of respondents’ lot, which obviously is not more than reasonably needed to maneuver an automobile into and out of respondents’ garage.

We note that the area of the easement is described to be 4½ feet wide, and in view of the evidence that the overlap did not exceed 4.33 feet we assume that this was an oversight. Appellants do not challenge this discrepancy, but the judgment should be corrected to show that the easement does not extend into any part of appellants’ lot which does not constitute part of the overlap into the 22-foot strip.

The judgment is modified to show a disposition of Count I of the petition in favor of appellants and to limit the width of the éásémént to the area of the 22-foot strip overlapped by appellants’ lot, and as so modified it is affirmed. The cause is remanded to the trial court with directions to enter a new judgment according to the views herein expressed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: DALTON, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Wayne Samuel GRAY, Appellant.
    No. 49006.
    Supreme Court of Missouri, Division No. 1.
    March 12, 1962.

      Al Mendelson, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Robert D. Kingsland, Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Presiding Judge.

Defendant was convicted of the crime of incest and his punishment fixed at two years’ imprisonment in the state penitentiary. Section 563.220 RSMo 1959, V.A.M. S. He has appealed and first contends that the court erred in overruling his motion for judgment of acquittal at the close of all the evidence. Supreme Court Rule 26.10, V.A.M.R.

Defendant insists that, as a matter of law, the evidence is not sufficient to sustain a judgment of conviction of the offense charged, because “the evidence of the prosecutrix was extremely conflicting and contradictory and, further, * * * her testimony was not corroborated in any way.” State v. Tevis, 234 Mo. 276, 136 S.W. 339 is cited in support of the contention.

On February 4, 1961, the defendant, age fifty-four years, and his wife Martha, both of whom had been previously married, resided at 4053 Central Street in Kansas City Missouri, with their two daughters, MK-, the prosecutrix, age thirteen years, and B- S-, age eight years. The house, an old one, had been remodeled by defendant, who was a self-employed general contractor engaged in “home repair,” such as painting, paperhanging and carpentry work. The house contained a two-room apartment on the south, occupied by Mr. and Mrs. Guy Lee; a two-room apartment and a hall on the north, occupied by defendant and his family; and a second floor apartment occupied by a Mr. Grant. A bathroom and toilet was shared by the two first-flo'T apartments. It could be entered either from the hall or from the kitchen of defendant’s apartment. One room of defendant’s apartment was used as a bedroom and the other as a kitchen. At the time in question, a cot or daybed had been temporarily placed in the kitchen. There was a swinging door between the bedroom and the kitchen that was usually left open. In the bedroom there was a bed used by defendant and his wife and also a bunk bed. The upper bunk of the bunk bed was ordinarily used by M-• K- and the lower bunk by B-S-. M-K-reached her thirteenth birthday on September 22, 1960. She was in the seventh grade and attended Rollins School, located at 4005 Main Street.

A few days before February 4, 1961, defendant’s granddaughter, Billy Ray Partin, became ill and was brought to defendant’s home for care and treatment. She was the child of M- K-’s half sister. On Friday night, February 3rd, Billy Ray was sleeping in the lower bunk of the bunk bed and there was a type of sheet over the lower hunk with “an inhaler burning.” A small light was on all night in the bedroom. Billy Ray’s illness also required the presence of a doctor that night, Dr. Casebolt. BS-, who was also ill, slept in the top bunk and M-K-slept in the kitchen on “sort of a daybed.” M-K-went to bed about 8 or 9 p. m. but her mother was up and down most of the night.

M-- K- testified that on Saturday morning February 4, about 7 o’clock, her father, the defendant, came to the kitchen and woke her up. No one else was up at that time. He had on only his shirt. She was wearing pajamas. The door between the kitchen and bedroom was closed. He told her to get up, take off the bottoms of Tier pajamas and lie back down. He then had sexual intercourse with her. He put •on a “rubber plastic thing,” a type of •covering, before “he interjected body into me.” She said the same thing had happened before and, over a long period, about “three times a week for three years.”

She told Mr. Cross, her next door neighbor, about her relations with her father and he suggested that she tell Mrs. Cross. She told Mrs. Cross two or three days after the Saturday morning occurrence. Mrs. Cross suggested that she tell the principal of her school. She did so early the next week. Thereafter two police officers came to the school and she was taken to the Youth Bureau and from there to the Homicide Bureau, later back to the Youth Bureau and then over to the Detention Home. She later appeared before Judge Riederer in the juvenile court. She was staying at the Detention Home at the time of the trial.

Mr. Cross, the next door neighbor, had a garage in which he kept pianos, re-built pianos and electrified player pianos. MK- had a dog which Mr. Cross was keeping for her at the garage, since her father would not let her keep it at home. She said she would go over to the garage about every other night to listen to the pianos and to see her dog. She also visited the Cross home often. Mr. Cross had been to the Juvenile Home to see her and he had written her letters. She denied that she had received “love letters” from him. She said: "His wife and him wrote letters”, and that both of them would say “with love.”

Before reviewing the evidence which appellant relies upon as being conflicting and contradictory, we shall review certain evidence which the jury could consider as corroborative of M-K-’s testimony.

Dr. William Allen, M. D., made a vaginal examination of prosecutrix on February 10, 1961. He inserted a speculum into the vagina and used it to open the external orifice so as to make a visual examination of the interior of the vagina. The speculum was introduced without any apparent difficulty and it was his opinion that in all probability the hymen was not there or had been ruptured.

One Robert H. Keys, a detective in the Homicide Unit, interviewed the defendant at the police station on February 9, after his arrest, and took a statement from him. The statement was signed and sworn to. After testimony had been received at the trial concerning matters which preceded the taking of the statement, it was offered and received in evidence without objection.

The statement is, in part, as follows: “Q Are you willing to waive that right (to consult attorney and friends) and make a statement with reference to the sexual relations you have had with your daughter, M- K- Gray, age 13, on February S, 1961 at about 6:00 a. m., knowing that it can be used against you in court in the event of a trial? A Yes, sir. Q Now, Wayne, tell me in your own words what has occurred between you and your daughter, sexually, and when did it start? A This situation started after I rented out an apartment on the first floor in my house in November of 1960. This made crowded living quarters. I have had trouble with my back and when I get home from work my wife, Martha, or M- K- rubs my back. Around the first of November, 1960, M- K- was rubbing my back and Martha was getting supper in the kitchen. While M-K-was rubbing my back I turned over on my back and M-- K-- grabbed hold of my penis and squeezed it and rubbed up against me. I in turn touched her breasts and then touched her stomach down to her hair and then on her privates. Martha came in about that time and I quit. Q Have you had any relations with M- K- other than this time? A Yes, in February of this year. Q Tell me what happened in that situation. A Last Friday or Saturday morning M- K- got up and went to the bathroom. I was getting breakfast in the kitchen where she had been sleeping. I had to go to the bathroom and I called to her to come out. I met her at the kitchen door. Q Then what happened? A I kissed her and she kissed me. I may have put my hand on her breasts, but that’s all I remember. Q Have you ever touched M-K-’s privates or had intercourse with her, other than in November? A No, •sir. Q Is there anything else you wish to add to this statement? A No, sir. •Q Will you read and sign this statement? A Yes, I have read the above statement, understand it, and am signing it because it is the truth. (Signed) Wayne S. Gray.”

Witness Keys testified that he discussed the charge in question with defendant before the statement was reduced to writing; that he wrote out the questions in longhand and then wrote out the answers “word for word as he (defendant) said them”; and that as they went along he told defendant “we just wanted to get his side of the story. * * * I asked the questions and he answered them * * * those are the words of Mr. Gray.” In the conversation preceding the taking of the statement, the defendant had denied intercourse with his daughter, said he wasn’t sure about touching his daughter’s breasts and, with reference to the alleged happenings about November first, “he said he quit” when his wife came in.

Defendant, a witness in his own behalf, identified his signature on State’s Exhibit No. 1, but said he didn’t have his glasses with him when he signed it. He later said the statement was not his exact words, but said: “I helped him word the statement there, yes, sir.”

As to his interview by Keys, the record shows that defendant testified: “Q In fact, he told you he was giving you a chance to tell your side of the story? A That is right. A He didn’t try to put a word in your mouth, did he? A No, sir. When he wrote that, now, he was going to help word it there, I don’t know what word he used exactly, I don’t remember. He didn’t use any force against me at that time, no, sir. Q What he wrote down here is what you told him? A Yes, sir.”

Defendant further said: “He (Keys) helped word the statement. I am not denying that I told him this thing but he helped word that statement, he done the writing, I didn’t write it. * * * Those are not my exact words, I am not denying that statement, I told him of a situation like this, an incident, he asked me if I ever remembered touching my daughter. I admitted that those are not my exact words.”

In determining the sufficiency of the evidence to make a case for the jury, an appellate court considers as true the evidence favorable to the State and the favorable inference to be reasonably drawn therefrom and rejects evidence contrary to and in conflict with such favorable evidence. State v. Akers, Mo.Sup., 328 S.W.2d 31, 33. It is, therefore, unnecessary to review that part of defendant’s testimony which is directly contradictory of the testimony of the prosecutrix. Some of the defendant’s evidence, however, tends to support portions of the State’s Exhibit No. 1 and' the evidence with reference to it.

At the trial the defendant sought to explain the incidents mentioned by him in State’s Exhibit No. 1. Concerning the occurrence on the first of November, 1960, he said: “I was lying on my back at the time that I was touched. Martha had been rubbing my back, she was getting supper. * * * M-- K-■ was rubbing my back * * * I turned over. I was wearing two-piece underwear * * * I was not exposed, M-K-touched me suddenly like that on this lower part of my body here (indicating). All of a sudden I threw my hand up like this, I touched about her stomach. * * * M- K-- was wearing blue jeans and double sweater, it was cold wintertime. * * * My wife was in there within five or six feet of me. I told my wife about it, she was there.” As to why he felt compelled to tell his wife about it, he said: “Well, because it was unusual, I had never had anything happen like that before.” At another time the defendant said: “She was rubbing my back and I turned over on my back * * * she touched down to the long part and I touched her breast like that, I was lying flat on my back. My wife was there.” With reference to his written statement, he further said: “I didn’t use that word grabbed, I said she touched my penis, I was fully dressed, she never touched my skin.”

Concerning the occasion on Saturday morning, February 4, 1961, defendant said: “Now, on Saturday morning my daughter came out of the kitchen, we were all up, I was dressed, she was dressed, I called to her to come out of the bathroom. She had the bathroom tied up, I wanted in there. She came out. I might have kissed her, I don’t remember, I told him that I might have kissed her. I kissed her every morning when she goes to school or when I leave both of my children. That is customary.” As to whether or not he touched her breasts, he said: “I am not positive about it * *

The inconsistencies in M — — K-⅛ testimony as pointed out in appellant’s brief are not sufficient to defeat the submission of the State’s case to the jury. The inconsistencies mentioned in the motion for a new trial are that she had stated earlier that her father had had relations with her two or three times and later stated he had had sexual relations with her two to three times a week for three years; that at one time she had stated the specific act submitted in the State’s instruction occurred at 2 :30 a. m. and then changed her story and stated it occurred at 7 a. m.; that she had once stated that, on the 4th day of February, “her father carried her to the kitchen and later testified that she was already in a bed in the kitchen when the act occurred.”

The alleged inconsistencies relied on in the motion and in the brief arose during the cross-examination of prosecutrix with reference to testimony she had given in a deposition and at the preliminary hearing. While transcripts had apparently been made of her testimony, the transcripts were not filed in the case and no portion of either transcript was offered in evidence. Cross-examination was conducted by reading certain questions and answers from the transcripts, and it is difficult to determine the materiality or extent of any conflicts with her previous testimony at the trial. In some instances it appears that she was testifying as to different occurrences, one of which she said happened two days before the incident upon which the prosecution was based. The court asked for a copy of the transcript of the preliminary hearing in order that he might follow it during the cross-examination but none was available. Some confusion resulted from the type of cross-examination carried on because it is difficult or impossible to determine with reasonable certainty what prosecutrix’s prior testimony had been with reference to the specific matters she was being cross-examined about.

The prosecutrix’s testimony was not conflicting and contradictory concerning the fact that her father had sexual intercourse with her on Saturday morning, February 4, 1961. Such conflicts or inconsistencies as appear from the transcript of her testimony relative to other matters go only to the weight and value of her testimony. While corroboration was unnecessary, State’s Exhibit No. 1 tending, as it does, to show the existence of an unnatural feeling between defendant and his thirteen-year old daughter and to further show the prompt termination of acts evidencing such feelings upon the sudden appearance of defendant’s wife was clearly corroborative of the prosecutrix’s testimony. The exhibit also tended to show that the unnatural feeling and relationship between the parties existed on February 4, 1961. We find nothing contrary to known physical facts and nothing impossible or unreasonable in prosecutrix’s testimony at the trial. Somewhat similar facts are frequently presented in this type of case. And see State v. Thomas, 318 Mo. 843, 1 S.W.2d 157, 159, 160(3, 4) ; State v. Weekly, Mo.Sup., 223 5.W.2d 494, 495. From a careful review of the record presented we have reached the conclusion that the court did not err in overruling the motion for judgment of acquittal at the close of all the evidence. State v. Akers, supra, 328 S.W.2d 31, 33.

Appellant further contends that the court erred in not sustaining defendant’s motion for a new trial on the ground of newly discovered evidence. The record shows that the jury returned its verdict on April 27, 1961; that defendant’s motion for a new trial was filed on May 16, 1961; and that on June 7, 1961, and prior to the court’s ruling on the motion for a new trial, the defendant filed an affidavit asking a new trial on the ground of newly discovered evidence. The affidavit was based on a letter signed by the prosecutrix and addressed to the trial judge and on a letter by a Mrs. Bewley of the “Parental Home” to prosecutrix. A hearing was held on the motion on June 9, 1961.

Mrs. Bewley testified that she was a supervisor in the Social Service Department of the Jackson County Juvenile Court; that she delivered M-- K- to Girls Town at Mountain Grove, Missouri; that she had corresponded with her since; that the letter she had written to M-K-was in reply to a letter she had received from M-- K-, which letter stated, with reference to Mr. Cross: “I thought he was the only one that I could ever love and I thought he loved me very much and I loved him very much. He told me Mrs. Cross left him with another man and went to Ohio or someplace I don’t know exactly. He told me he didn’t think Mrs. Cross loves him but he knows I love him. I had relations with in the last year and a half.” The witness further stated that, although she had talked to .M- K- many times about her testimony at the trial, M-- K- had never in any way changed her story, as given at the trial, nor had she denied having had sexual relations with her father.

The trial judge had not seen the letter addressed to him until it was presented to him at the hearing on the motion. It was attached to defendant’s affidavit asking for a new trial on newly discovered evidence. Defendant’s evidence shows that Mrs. Gray, M-■ K-’s mother, had been to Mountain Grove on June 4th with defendant and B-- S-- and 'had brought ’ the letter back with her. The' letter was written by M- K- in her mother’s presence; her father had visited her but, according’ to Mrs. Gray, he was not present when the letter was written. Mrs. Gray said the letter was M- K-⅛ idea — she thought of it herself. The letter stated that Mr. and Mrs. Cross had persuaded her to tell the story about her father and that it was a “fib” and she wanted to drop the charges.

The court took the motion for new trial under advisement in order that he might hear M- K-’s testimony. Her testimony was heard on July 14, 1961. She admitted writing the letter addressed to the trial judge. She said that her mother, father and sister were there the day the letter was written. They visited her from about 1 p. m. to 6 or 7 p. m. on Sunday, June 4, 1961, and the letter was written just before they left for home. It was written at the suggestion of her father and mother. The letter was not her idea. She wrote the letter because her father was yelling at her and she was afraid. It was addressed to the judge, but they took it with them. She testified that she had not told any false story about her father at the trial; that what she said at that time was true; and that what she said in the letter to the trial judge was false. She also said she had lied to Mrs. Bewley as to one matter, about Mr. Cross, but that Mr. Cross had had intercourse with her four times in a year and a half. On further examination by the court the prosecutrix insisted that at the trial she had told the truth about her father. The motion for a new trial was then overruled and defendant was sentenced in accordance with the jury’s verdict.

Appellant argues that the evidence adduced at the hearing on the motion for a new trial conclusively shows that the prosecutrix was unworthy of belief; and that for a jury to properly weigh and evaluate the evidence they should have had all of the facts of her relationship with Mr. Cross. So far as the record on appeal shows, the prosecutrix was not asked about any improper relations with Mr. Cross when her deposition was taken, when the preliminary hearing was held, nor at the trial. Counsel for defendant did cross-examine prosecutrix at the trial about alleged “love letters” from Cross, about reporting to him about her relations with her father, about Mr. Cross’ visit to her at the Juvenile Home, about her frequent visits to his house and about her visits to his garage every other night. The record shows sufficient facts to put counsel on notice to inquire about other matters, if he considered them material to the issues on trial. The only evidence presented at the hearing on the motion in conflict with prosecutrix’s testimony at the trial was her letter to the trial judge, which her parents obtained from her when they visited her at Mountain Grove. She repudiated that letter at the hearing. So far as appears from this record the trial judge gave the letter all of the consideration that it properly deserved.

Appellant further argues that the testimony at the hearing on the motion for a new trial concerning prosecutrix’s sexual relations with Mr. Cross was extremely important because it tended to “absolutely destroy” any corroborative effect of Dr. Allen’s testimony; that evidence of her relations with Mr. Cross would have caused a different verdict; and that, whether true or false, it shows she was making accusations against a neighbor as well as her father. In our view the evidence was insufficient to show that in the event of a new trial the newly discovered evidence would likely produce a different result. The jury, if they believed her testimony, might well consider the child’s relationship with the neighbor to have been the natural and expected result of her degrading experiences with her father, which she said had existed over twice as long a period of time as her relations with Mr. Cross. Further, the fact that the child may have been guilty of improper relations with Mr. Cross was no defense to the charge of incest. State v. Winingham, 124 Mo. 423, 27 S.W. 1107, 1108(3). Further, the evidence developed at the hearing on the motion did not show reasonable diligence on the part of defendant to develop some of the facts developed at the hearing on the motion. The court did not err or abuse its discretion in overruling defendant’s motion for a new trial on the ground of newly discovered evidence. State v. Brown, Mo. Sup., 245 S.W.2d 866, 868(9, 10); State v. Stroud, 362 Mo. 124, 240 S.W.2d 111, 113(5, 6).

We have also examined those matters required to be considered under Supreme Court Rule 28.02, and find no error.

The judgment is affirmed.

All concur.


text:
    Marvin MYERS, Appellant, v. CITY OF PALMYRA, Missouri, a Municipal Corporation, Respondent.
    No. 48694.
    Supreme Court of Missouri, Division No. 2.
    March 12, 1962.

      Myrl B. Sternke, Palmyra, Albert L. Rendlen, Rendlen & Rendlen, Hannibal, for appellant.
    Harry J. Mitchell, Palmyra, for respondent.
   STOCKARD, Commissioner.

This is an appeal from the orders of the Circuit Court of Marion County dismissing a petition and entering summary judgment for defendant on the pleadings in a suit for personal injuries. Plaintiff claimed damages in the amount of $30,000. Therefore this court has appellate jurisdiction. Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763.

Plaintiff alleged that on January 21, 1959, while standing on a public street he received personal injuries as the result of the negligence of the City of Palmyra when he was struck by a city owned tractor, with snow removing equipment attached, while being operated by an employee of the city to remove accumulations of snow from the streets “to make the same passable for traffic and for use by the public.” There is no contention that the petition failed to state a cause of action if the city is subject to suit for the alleged negligence, and the issue on this appeal is thus narrowed to whether the doctrine of immunity of a municipality from liability for its torts applies to the acts of a city in removing accumulations of snow from the public streets for the purpose of making those streets passable for traffic.

In determining whether or not a petition states a claim upon which relief may be granted the averments therein are to be given a liberal construction, and are to be accorded their reasonable and fair in-tendment. A petition is not to be held insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact. Hiltner v. Kansas City, Mo., 293 S.W.2d 422, 424; Zuber v. Clarkson Construction Company, 363 Mo. 352, 251 S. W.2d 52. Plaintiff asserts in his brief that there was “a general condition of deep snow in the City of Palmyra,” that there were “dangerous accumulations and banks or piles of snow on the streets of Palmyra constituting a hazard to vehicular and pedestrian traffic and rendering the streets impassable,” and that the snow was “piled, banked and drifted to great depths in many places on the streets.” We shall assume that it is reasonable to infer these facts from the more general allegations of the petition.

In Missouri, as in most states, municipalities are not liable as a general rule for torts arising out of what is called governmental functions. Dallas v. City of St. Louis, Mo., 338 S.W.2d 39; Hiltner v. Kansas City, supra; Vol. 18 Municipal Corporations, McQuillin 3rd ed., § 53.24. However, whether the construction, repair, and maintenance of streets be classified as a corporate or proprietary function, Mengel v. City of St. Louis, 341 Mo. 994, 111 S.W.2d 5, or as a ministerial function, Barree v. City of Cape Girardeau, 197 Mo. 382, 95 S.W. 330, 6 L.R.A.,N.S., 1090, 114 Am.St. Rep. 763, or as governmental function for which there is an exception to the rule that a municipality is not liable for its torts, as implied in Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306, under the law of this state “it is the primary and non-delega-ble duty of the city to exercise ordinary care to keep its streets in a reasonably safe condition for travel,” Sutton v. Fox Missouri Theatre Company, Mo., 336 S.W.2d 85, 92, and to this activity the doctrine of immunity from liability for torts does not apply. The above rule was developed in cases which arose out of situations wherein the plaintiff claimed to have been injured as the result of the municipality failing to keep the streets in a reasonably safe condition for travel. However, it is also well established that a city is liable for its torts arising out of the acts of its employees while engaged in constructing its streets, or in maintaining and repairing the streets to make them reasonably safe for travel. Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Barree v. City of Cape Girardeau, supra; Carruthers v. City of St. Louis, 341 Mo. 1073, 111 S.W.2d 32; Adams v. City of Frankford, Mo.App., 251 S.W. 125. Therefore, a city must act with due care, not only to keep the streets free from dangerous conditions but also in doing any act to repair them and maintain them open for traffic, and under the well-established law of Missouri it is liable for its torts resulting from activities done in carrying out these duties regardless of the name by which they may be called.

By reason of the nature of the acts in removing accumulations of snow from the streets and the purpose of making the streets passable, it would appear that such activity constitutes maintenance of the streets, an activity to which the doctrine of immunity does not apply in Missouri. Defendant contends, however, that the activity of removing accumulations of snow from the streets should be classified as a governmental function and that the doctrine of immunity for torts should apply. We shall examine the reasons advanced in support of this contention.

Defendant cites and relies on Hayes v. Kansas City, 362 Mo. 368, 241 S.W.2d 888, and Lober v. Kansas City, 339 Mo. 1087, 74 S.W.2d 815, 100 S.W.2d 267, which hold that the cleaning of streets by a municipality is a governmental function to which the doctrine of immunity applies. It then argues that “the snow removal was for the protection and preservation of health, to enable the sick to get to the drug store, doctor or hospital, to enable the inhabitants to get food and fuel necessary to preserve health, and to enable the police, fire, and sanitary departments of the city to continue in operation, and the function was therefore governmental.” This argument is equally applicable to every activity of a city in constructing, repairing, and maintaining streets for which the courts have held the doctrine of immunity from liability for torts does not apply. The fact that from the activity of removing snow to make the streets passable there may be an incidental benefit to the health of the community is not controlling. In Hayes v. Kansas City, supra, the incidental benefit in keeping a street open for travel did not cause the activity of street cleaning to lose its classification as a governmental function with the attending immunity from tort liability. See also Adams v. City of Frankford, Mo.App., 251 S.W. 125. In City of Tulsa v. Wheetley, 187 Okl. 155, 101 P.2d 834, the city flushed snow and slush from the streets and sidewalks with a fire hose. The plaintiff was injured when he fell on ice subsequently formed. The court held that the activity was for the purpose of cleaning the street, and therefore it constituted a governmental function, but it clearly distinguished the factual situation there under consideration from that where there was an “abnormal condition of snow and ice which would create such obstruction that the City would be under a duty to remove it as an act of maintenance necessary to keep the streets in a passable condition.” This is the precise condition that existed in this case according to the allegations of the petition when accorded their reasonable and fair intendment.

Defendant next contends that ice and snow on a street is not an obstruction which it is required to remove, and it cites Reedy v. St. Louis Brewing Ass’n, 161 Mo. 523, 61 S.W. 859, 53 L.R.A. 805; Rice v. Kansas City, Mo.App., 16 S.W.2d 659; and Beane v. City of St. Joseph, 215 Mo.App. 554, 256 S.W. 1093. These cases pertain to the situation where a person was injured because of the presence of ice or snow on streets and sidewalks, and the question in each was whether the city had a duty to remove the condition but negligently failed to do so. As to the duty of a city to remove a general snow from its streets and sidewalks, see Walsh v. City of St. Louis, 346 Mo. 571, 142 S.W.2d 465. In the present case, however, plaintiff was not injured as the result of the negligence of the defendant in not removing the accumulations of snow from the streets, and it is immaterial whether under the particular circumstances the defendant would have been negligent in not doing so when it did, or at any time. The defendant did undertake to remove the snow from its streets to maintain the streets open for travel, and in doing so it had the duty to act without negligence. It is this latter duty which plaintiff contends was violated in this case.

We have neither found nor been cited to any Missouri case directly in point, and there are but few cases from other jurisdictions pertaining to the liability of a municipality for its torts occurring while removing snow from its streets. In Johnson v. Board of Road Com’rs of Ontonagon County, 253 Mich. 465, 235 N.W. 221, and in Pelletier v. City of Beverly, 292 Mass. 468, 198 N.E. 772, the plaintiffs were injured by the alleged negligent operation of equipment being used to remove snow from streets or highways. In the first case it was held that the activity constituted maintenance of the streets or highways, and in the second case it was held that the equipment was being used to keep the streets in repair so they would be reasonably safe and convenient for travelers at all seasons. In each case it was held that the activity was a governmental function because under the law of that state the maintenance of streets and highways was a governmental function to which the doctrine of immunity for torts applied. In Flamingo v. City of Waukesha, 262 Wis. 219, 55 N.W.2d 24, the city removed snow from its streets and piled it on a river bank. A shelf of ice and snow was built up overhanging the river, and a boy was drowned when the shelf gave way and dropped him into the river. A demurrer to the petition was sustained because, as stated by the court, “It is well settled that the maintenance of streets and highways in a condition fit for travel is a governmental function.”

Although the above three cases reach the result that under the law of the state in which the case arose the municipality was not liable for its torts arising out of the activity of removing snow from the streets and highways, they constitute authority for the contrary result under the applicable law of Missouri. Each case holds that the removal of snow constitutes the maintenance of streets to make them reasonably safe for travel, and under the law of Missouri the doctrine of immunity of a municipality from liability for its torts does not extend to that activity.

The removal by a municipality of accumulations of snow from its streets, when not done primarily for purposes of sanitation and the health of the community, constitutes a maintenance of the streets in furtherance of the general duty of a city to maintain its streets in a reasonably safe condition for travel. Under the law of Missouri the doctrine of immunity of a municipality from liability for its torts does not extend to activities done in the performance of this duty. The modern tendency is to restrict rather than extend the area of immunity. Dallas v. City of St. Louis, supra, 338 S.W.2d at p. 41. The circumstances of this case present no reason to extend the doctrine of immunity beyond the limits previously established. We must necessarily conclude that the petition does state a claim upon which relief may be granted, and that the trial court erred in dismissing the petition for that reason.

The judgment is reversed and the cause remanded.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Robert Joseph ADAMS, Appellant.
    No. 48805.
    Supreme Court of Missouri, Division No. 2.
    March 12, 1962.
    Stephen N. Limbaugh, Limbaugh & Limbaugh, Cape Girardeau, for appellant.
    Thomas F. Eagleton, Atty. Gen., Carl R. Gaertner, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Presiding Judge.

Defendant was convicted by a jury of first degree murder and sentenced to imprisonment for his natural life. The deceased was defendant’s wife; the sole defense was insanity. The killing was perpetrated on March 29, 1960, in a particularly gruesome manner, the deceased being stabbed and cut 40 to 45 times with a pair of scissors. She died from massive hemorrhage into the lungs. Defendant was 24 years of age at the time, and his wife was not quite 23. There is no necessity for any detailed recital of the evidence. Various lay witnesses and a physician long in general practice in the locality, who had examined the defendant, testified that he was sane. Two highly qualified psychiatrists, who had also examined him, testified that he was insane within the accepted legal definition. These witnesses outlined their observations, their reasoning and their conclusions in much detail. Several lay persons testified to certain changes and supposed peculiarities in defendant’s actions and conversations during the last few weeks before this tragedy. There was also evidence of defendant’s conduct immediately following the slaying which was strongly relied upon as indicating insanity. A clear cut issue on the question of insanity was presented to the jury, which, by its verdict, found that the defendant was sane.

Three points are presented in the brief of appellant here. These are: (1) error in State’s Instruction No. 11; (2) error in failing to discharge the jury because of prejudicial argument by the prosecuting attorney; and (3) error in refusing to admit evidence of comments made by the deceased shortly prior to her death concerning defendant’s actions and statements. The last point has not been preserved for review. The only assignment in the motion for new trial dealing with the evidence was: “The court erred in refusing to admit evidence offered by the defendant.” This assignment is so general as to be wholly insufficient under Rule 27.20, V.A.M.R. State v. Thomas, Mo., 309 S.W.2d 607, 610; State v. Turner, Mo., 320 S.W.2d 579, 586, and cases there cited. The other two points have been fully and adequately preserved in the motion.

Instruction No. 11 was as follows : “You are instructed that the law presumes every person who has reached the years of discretion to be of sound mind, and this presumption continues until the contrary Is shown. So that when, as in this case, insanity is pleaded as a defense to a criminal charge, the fact of the existence of such insanity at the time of the-commission of the act complained of must;, before you can acquit on that ground, be established by the evidence to your reasonable satisfaction.”

The State had also offered and the court gave Instruction No. 7 defining insanity as follows: “The Court instructs the jury that insanity is a disease located in the brain, which so perverts and deranges one or more of the mental or moral faculties as to render the person suffering from this affliction incapable of distinguishing right from wrong in reference to the particular act charged, and incapable of understanding at' the time that the act in question was a violation of the laws of God and society.”

Appellant complains of the requirement in Instruction No. 11 that insanity “must, before you can acquit on that ground, be established by the evidence to your reasonable satisfaction,” citing, State v. Swinburne, Banc, Mo., 324 S.W.2d 746; State v. Johnson, Mo., 267 S.W.2d 642, 44 A.L.R. 2d 973, certiorari denied 351 U.S. 957, 76 S.Ct. 858, 100 L.Ed. 1479, certiorari denied 357 U.S. 922, 78 S.Ct. 1364, 2 L.Ed.2d 1366; State v. Barton, Banc, Mo., 236 S.W.2d 596; State v. Barton, Banc, 363 Mo. 991, 255 S.W.2d 752. In the first Barton case, supra, the court said, in part, 236 S.W.2d loc. cit. 600: “We are convinced that the measure of proof required for an insanity defense in a criminal case is the preponderance or greater weight of the evidence; and that the sole requirement of the jury’s satisfaction or reasonable satisfaction imposes, upon him a higher degree of proof than that of the preponderance or greater weight of the evidence. * * * It is our view that instructions defining the quantum of proof necessary to support such defense should omit all references ‘to the jury’s satisfaction’ or ‘reasonable satisfaction.’ We realize that the propriety of coupling these terms with ‘the preponderance or greater weight of the evidence’ is not for determination in this case, but believe that this ■expression of opinion may be helpful to trial judges and members of the bar.” Some possibility of confusion resulted because there five of the judges concurred in the result only, believing that the degree of proof required of the defendant should be even less restrictive and that he should only be required to create a “reasonable doubt” of his sanity; those judges recognized, however, that such a rule could not be •adopted under existing statutes. However, the principal opinion in that case (from which we have quoted, supra) has ever since been recognized as the law of Missouri. In the second Barton case, the court in banc said, 255 S.W.2d loc. cit. 755: “It is clear from the principal opinion in the ease of State v. Barton, supra, and from the opinion expressing a concurrence in the result reached in the principal opinion, that under the existing law of this state the burden of proving the defense of insanity by a preponderance of the evidence rests upon the defendant.” In State v. Swinburne, supra, the phrase attacked was: “ * * * if you are reasonably satisfied by the greater weight or preponderance of the evidence.” The court held this erroneous, construed the first Barton case as condemning the phrases “satisfied,” “reasonably satisfied,” and “reasonable satisfaction,” and independently condemned them •when applied to an affirmative defense. The court there reaffirmed the view that a requirement of “satisfaction” or “reasonable satisfaction” denotes “a degree of proof substantially greater than a preponderance of the evidence * * ⅜.” (324 S.W.2d loc. cit. 749.) The phrase “reasonably satisfied” was held erroneous there, even though used in .connection with the “greater weight or preponderance of the evidence,” in that it increased “the legal burden resting on defendant to prove insanity by the preponderance of the evidence.” See also State v. Eaves, 362 Mo. 670, 243 S.W.2d 129; State v. Johnson, Mo., 267 S.W.2d 642, 44 A.L.R.2d 973.

The State argues here that Instruction No. 11 was merely a cautionary instruction, that it was not a burden of proof instruction and that the jury was fully instructed on the burden of proof in other instructions; also, that the phrases condemned in other cases appeared in burden of proof instructions. It concedes that such a phrase would be erroneous “when used in a burden of proof instruction * * *.” As a matter of fact the instructions in both Barton cases and in the Swinburne case were instructions dealing generally with the whole question of insanity but including also the element of the burden of proof. The instruction in Johnson was not quoted, but it is immaterial. The instruction held erroneous in State v. Eaves, 362 Mo. 670, 243 S.W.2d 129, included a phrase placing the burden of proving insanity on the defendant. It makes no essential difference what label one gives to an instruction; while Instruction No. 11 here was not, in itself, a complete burden of proof instruction, it specifically required that insanity be established by the evidence to your reasonable satisfaction. By whom was it to be established? Beyond all question of doubt, Instruction No. 8 placed the burden of establishing it directly upon the defendant. Consequently, the establishing of insanity and the burden of proof thereon were so directly related as to be inseparable.

Instructions numbered 6 and 8, combined (offered by defendant and given by the court) specifically hypothesized the legal requirements for a finding of insanity, and told the jury to acquit if it found such facts. Except for formal differences these instructions constituted a complete copy of the insanity instruction approved in State v. Barton, Banc, 363 Mo. 991, 255 S.W.2d 752, 754, omitting the last short paragraph there which, in our case, was supplied elsewhere. Instruction No. 8 included the following language: “As the law presumes the defendant innocent the burden of proving him guilty rests with the State and before you should convict him his guilt must be established to a moral certainty and beyond a reasonable doubt. On the other hand, to entitle the defendant to a verdict of not guilty solely by reason of his insanity, the law requires him to prove it not however beyond a reasonable doubt but only by the preponderance or greater weight of the evidence.” Thus, while Instruction No. 8 contained a proper definition of defendant’s burden of proof, a necessary and obvious conflict arose between it and Instruction No. 11, for we have specifically held that it requires a greater degree of proof than a preponderance of the evidence to establish a fact to the jury’s "reasonable satisfaction.” It is true that we consider all the instructions together. But where one contains an erroneous standard which constitutes an affirmative misdirection, it is not cured by another instruction setting out the proper standard. Here there was a clear tendency to confuse the jury on the sole material issue in the case, and we may not say with any confidence that the error was not prejudicial. What we said in Swinburne, supra (324 S.W.2d loc. cit. 749-750) is applicable here. “If we were permitted to speculate upon what effect this instruction may actually have had on the jury, our conclusion might be different. In the light of this gruesome record it may have played no part. But we cannot so speculate; we may not say that this instruction did not confuse and mislead. It was erroneous as given, and we hold it to be prejudicial.” We have definitely condemned insanity instructions in criminal cases containing such phrases as this since 1951. We trust that this reversal will constitute notice to the bench and bar that this rule will be adhered to, and that all such references should be avoided.

We merely mention the second point made, in view of another trial. We deem the argument complained of improper; it is not necessary under the circumstances to determine whether it constituted prejudicial error. It should not be repeated at another trial.

The judgment is reversed and the cause remanded for a new trial.

All of the Judges concur.


author: STORCKMAN, Judge.

text:
    Violet H. DARRAH, Appellant, v. Raymond W. FOSTER, Administrator of the Estate of Raymona Joyce Foster, Deceased, Respondent. Mary Lucille SACCO, Cross-Claimant-Appellant, v. Raymond W. FOSTER, Administrator of the Estate of Raymona Joyce Foster, Deceased, Respondent.
    No. 48626.
    Supreme Court of Missouri, Division No. 2.
    March 12, 1962.

      Gayles R. Pine, Betty Pine Lockard, Pine, Welling, Jones & Lockard, Warrensburg, for plaintiff-appellant Violet H. Darrah.
    Fred F. Wesner, Robert L. Wesner, Wesner & Wesner, Sedalia, for cross-claimant-appellant Mary Lucille Sacco.
    William J. Cason, Clinton, for defendant-respondent.
   STORCKMAN, Judge.

In this case two causes of action arising out of the same automobile accident are involved. One is an action for wrongful death and the other for personal injuries. They were instituted in the Circuit Court of Johnson County against the administrator of a decedent. On motion of the defendant administrator, the actions were dismissed with prejudice for failure of the claimants to file in the probate court a written notice of the institution of the action within nine months after the first published notice of letters of administration. The appellants contend they were relieved of the obligation to file a notice by .reason of the repeal of § 473.360, RSMo 1957 Cum.Supp., V.A.M.S., and the enactment of another section bearing the same number, RSMo 1959, V.A.M.S. The new section became effective during the nine-month period for filing notice and provides that unless a written notice is filed within the nine-month period no recovery may be had out of any assets being administered in the probate court or from any distributee or other person receiving-such assets. For convenience the named plaintiff, Violet H. Darrah, and the defendant cross-claimant, Mary Lucille Sacco, will sometimes be referred to as the-plaintiffs since each is seeking a remedy for an injury to her rights.

On December 2, 1958, in Johnson County, Missouri, an automobile operated by the-defendant c-ross-claimant, Mary Lucille Sacco, and one driven by Mrs. Raymona Joyce Foster collided, causing the death of Mrs. Foster and Elston Edgar Darrah, a passenger in the Sacco automobile. On December 9, 1958, Violet H. Darrah, the widow of Mr. Darrah, sued Mary Lucille Sacco in the Circuit Court of Johnson County for the wrongful death of her husband. Thereafter, on January 8, 1959, the Probate Court of Johnson County issued letters to Raymond W. Foster as administrator of the estate of Raymona Joyce Foster, deceased, and the first publication of notice of the letters was made on January 16, 1959. On February 9, 1959, the plaintiff filed an amended petition in which she joined the administrator of the estate of Raymona Joyce Foster, deceased, as a party defendant.

On February 28, the defendant Sacco filed a cross-claim for personal injuries against her co-defendant Foster, the administrator. Thereafter, the defendant Foster filed separate motions to dismiss the plaintiff’s petition and the cross-claim on the ground they did not state claims upon which relief could be granted; he •also filed separate motions to make these pleadings more definite and certain. The defendant’s motions were overruled on March 23, 1959, and in due course the administrator answered. The litigation remained in this situation until October 26, 1959, when the defendant Foster by leave filed motions to dismiss the plaintiff’s petition and the defendant Sacco’s cross-claim for failure of the respective claimants to file in the Probate Court of Johnson County a copy of the summons and return of service thereon or any claim or notice of ■claim within nine months after the first publication of notice of letters of administration. After hearings, the defendant’s motions were sustained on December 12, 1960, and the two actions were dismissed with prejudice.

The parties agree that the nine-month period following the grant of letters expired on October 17, 1959, and that the new section, 473.360, became effective on August 29, 1959. It was shown by the evidence adduced at the hearings on the motions to dismiss that Mrs. Foster’s operation of her husband’s automobile on December 2, 1958, was covered by a policy of liability insurance issued by M.F.A. Mutual Insurance Company for bodily injuries and property damage with limits of $25,000 for one person and $50,000 for a single accident and that the attorney defending the actions on behalf of the administrator was employed by the insurance company. The records of the probate court demonstrated that letters of administration were issued on the petition of the plaintiff Violet H. Darrah in which she alleged that she was an interested person in that she had a cause of action for the wrongful death of her husband which survived the death of Mrs. Foster and was sufficient to authorize and require the appointment of an administrator. The evidence further showed that no assets had been inventoried in Mrs. Foster’s estate. During the course of the hearings, the plaintiff dismissed without prejudice her cause of action against the defendant Sacco.

Originally, the plaintiff sued for $25,000 and the cross-claimant Sacco sued for $50,000. During the hearings on the motion to dismiss, the plaintiff by amendment reduced the prayer of her petition to $15,000 and the cross-claimant did likewise, so that the aggregate of the amount sought as damages was $30,000 at the time the actions were dismissed with prejudice. In these circumstances the amount in dispute, exclusive of costs, exceeds the sum of $15,000 and jurisdiction of the appeal is in the supreme court. Section 477.040, RSMo 1959, V.A.M.S.; Art. V, § 3, Constitution of Missouri, V.A.M.S.; Kitchen v. City of Clinton, 320 Mo. 569, 8 S.W.2d 602 [1]; City of St. Louis v. Essex Investment Co., 356 Mo. 1028, 204 S.W.2d 726, 728 [3].

The 1955 probate code was subjected to numerous corrective amendments in 1957. Laws 1955, p. 385; Laws 1957, p. 829. We are concerned mainly with §§ 473.360, 473.363, 473.367, 473.370, and 473.377 of the code as they existed before and after August 29, 1959, when the act in question became effective. Sections 473.370 and 473.377 confirm the jurisdiction of circuit courts in the establishment of probate claims and have not been changed since their enactment in 1955. Section 473.363 and 473.367 deal with actions pending against a person at the time of his death and actions instituted thereafter; they provide that such an action shall he “considered a claim duly filed against” the estate from the time written notice of the action, pending or instituted, is filed in the probate court. The changes made in these two sections in 1959 .relate to the procedure for substitution and the type of notice to be filed in the probate court.

The statute with which we are primarily concerned is § 473.360. The 1959 enactment made no change in subdivisions 1, 3 and 4 of this section, and the latter two subdivisions need not be noticed further since they have no bearing on our present problem. Subdivision 1 of § 473.360, insofar as here material, provides:

“Except as provided in sections 473.-367 and 473.370, all claims against the estate of a deceased person, * * * which are not filed in the probate court within nine months after the first published notice of letters testamentary or of administration, are forever barred against the estate, the executor or administrator, the heirs, devisees and legatees of the decedent. * * * ”

Subdivision 2 of § 473.360 is the decisive provision. Prior to the 1959 enactment it read (RSMo 1957 Cum.Supp.) :

“All actions against the estate of a deceased person, pending or filed under sections 473.363 or 473.367, shall abate or shall be barred unless notice of the revival or institution thereof is filed in the probate court within nine months after the first published notice of letters.”

This subdivision being a part of § 473.-360 was repealed (Laws 1959, S.B. 305) and the new subdivision 2 of § 473.360, which became effective on August 29, 1959, reads as follows (RSMo 1959):

“Unless written notice of actions instituted or revived under section 473.-363 or 473.367 is filed in the probate court within nine months after the first published notice of letters, no recovery may be had in any such action on any judgment therein against the executor or administrator out of any assets being administered upon in the probate court or from any distributee or other person .receiving such assets.”

The prevailing ground of defendant’s motion to dismiss was that the plaintiffs had failed to file in the probate court any notice of the institution of the actions. Plaintiffs’ contention is that the new statutory provision was applicable to their actions and under it they were permitted to prosecute their actions to judgment without filing a notice in probate court, although if they recovered they were barred from satisfying their judgments out of assets in the probate estate.

North v. Hawkinson, Mo., 324 S.W.2d 733, Clarke v. Organ, Mo., 329 S.W.2d 670, and Smith v. Maynard, Mo., 339 S.W.2d 737, dealt with these nonclaim sections as they existed prior to the 1959 enactment. In North v. Hawkinson the court held that the nine-month nonclaim statutes barred the maintenance of an action in equity for an accounting filed in the circuit court more than nine months after the first publication of notice of letters testamentary. Clarke v. Organ was a wrongful death action, and Smith v. Maynard a personal injury suit. In each case, suit was instituted in the circuit court within the nine months following the first publication of letters testamentary, but the plaintiffs failed to file in the probate court any notice of the institution of the suit. The supreme court held in each case that dismissal of the suit was proper in that the nonclaim statutes, which included subdivision 2 of § 473.360, as they then existed barred or abated all claims whether filed in the probate court or instituted in the circuit court unless the claim or the required notice of suit was timely filed in the probate court.

Rabin v. Krogsdale, Mo., 346 S.W.2d 58, considered and applied the new 1959 statute. The suit was pending in the circuit court at the time of the defendant’s death on January 6, 1959. The plaintiff substituted Mrs. Krogsdale’s executor as a party defendant but did not file notice of revival or Substitution in the probate court within nine months after the first publication of notice of letters. On defendant’s motion, the trial court dismissed the suit because of this failure. In the Rabin case, as in the case at bar, the effective date of the 1959 enactment occurred before the nine-month period had elapsed. This court held that the legislature could regulate the time and manner of bringing and maintaining suits including an existing cause of action and concluded that plaintiff’s action was governed by the new statutes. The judgment was reversed and the cause remanded.

The respondent contends Rabin v. Krogsdale is not controlling and that the nonclaim statutes in effect when the cause of action accrued, when letters of administration were granted and the notice thereof was published, control the disposition of the present case because nonclaim statutes are substantive and not procedural and are, therefore, presumed to operate prospectively only. It should be noted that the 1959 act did not extend or shorten the period for filing claims or actions or notices with respect thereto. The only substantial change is in the effect of the failure to file in probate court notice of an action instituted or revived against an executor or administrator in the circuit court.

The issue of whether the statute in question was remedial or substantive in character was directly involved in Rabin v. Krogsdale and the court held that the original act was not substantive so as to extinguish the right of action but affected the remedy only. 346 S.W.2d 58, 59 and 61. We adhere to that ruling. It is in accord with the general rule and the controlling decisions of this state. See Carwood Realty Co. v. Gangol, Mo., 232 S.W.2d 399, 401 [2] ; Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852, 854 [4]; and 50 Am.Jur., Statutes, § 482, p. 505.

“As a general rule, where there is no direct constitutional prohibition, the legislative branch of government, whether Federal or state, may pass retrospective laws, such as, in their operation, may affect suits pending and give to a party a remedy which he did not previously possess, or modify an existing remedy, or remove an impediment in the way of legal proceedings. Such acts are of a remedial character and are the peculiar subjects of legislation.” 11 Am. Jur., Constitutional Law, § 382, p. 1212. The repeal of the original act and the enactment of the present law was designed to remove an impediment in the way of maintaining in the circuit court an action against an administrator or executor of a deceased person. This did not change the right of action but is related to the remedy and procedure.

A statute dealing only with procedure or the remedy applies to all actions falling within its terms whether commenced before or after the enactment unless a contrary intention is expressed. Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852, 853-854 [3] ; Aetna Ins. Co. v. O’Malley, 342 Mo. 800, 118 S.W.2d 3, 8 [3]; Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40, 43 [2, 3]; 82 C.J.S. Statutes § 422, p. 998. The cases cited by the defendant in this regard are not controlling or persuasive of a contrary result. It would serve no useful purpose to discuss them all in detail. Among those cited, the early cases of Ambs v. Caspari, 13 Mo.App. 586, Garesche v. Lewis, 15 Mo.App. 565, and Ranney v. Bostic, 15 Mo. 215, deal with laws shortening the time for presentment of probate claims and the time within which a writ of scire facias could be sued out for the substitution of an administrator as a party defendant. The discussion of the pertinent law and the facts is meager (Ambs is a memorandum opinion), and if the holdings were as the defendant contends they would not be in harmony with the recent controlling cases referred to above.

The defendant also relies upon § 1.150, RSMo 1959, V.A.M.S., as authority for the proposition that a change in the law shall not affect pending matters unless it is otherwise expressly provided. This statute was intended to preserve substantive rights vested prior to the repeal of the statute under which the rights were acquired and does not apply to remedies or procedures which, as we have held here, are not vested. State ex rel. Wayne County v. Hackmann, 272 Mo. 600, 199 S.W. 990, 991 [4], The defendant also refers to § 1 of the probate code, L.1955, p. 390, (preceding § 472.010, RSMo, V.A.M.S.) which specified the effective date of the code and further provided that it shall apply to all further procedure in pending proceedings unless in particular proceedings its application would, in the opinion of the court, not be feasible or would work injustice. This obviously refers to the effective date of January 1, 1956, but, if intended to apply to amendments of the code as well, the effect of the provision would be contrary to defendant’s contention rather than in support of it.

Our conclusion is that the 1959 act relates to the remedy and is procedural in nature; it was intended to apply to pending actions and does apply to the actions in this case. But the defendant further contends that even if the statute is procedural the procedure in effect at the time the action was instituted controls throughout and that Rabin v. Krogsdale is distinguishable and contains dictum that is in conflict with prior decisions and should not be followed.

Circuit courts being courts of general jurisdiction have jurisdiction of tort cases including actions for wrongful death and for personal injury. Art. V, § 14, Constitution of Missouri 1945; § 478.070, RSMo 1959, V.A.M.S.; Primeau v. Primeau, 317 Mo. 828, 297 S.W. 382, 386 [7]. The probate code does not impair the general jurisdiction of the circuit court in actions against executors or administrators. Sections 473.-363-73.377; Clarke v. Organ, Mo., 329 S.W.2d 670, 673; North v. Hawkinson, Mo., 324 S.W.2d 733, 742 [2].

Causes of action for wrongful death and for personal injury which survive the death of the alleged tortfeasor are sufficient to require the appointment of an administrator even though the deceased left no property and the sole purpose of the administration is to prosecute actions for death and for personal injury. State ex rel. McCubbin v. Ginn, Mo., 347 S.W.2d 119; §§ 473.010(3) and 537.020, RSMo 1959, V.A.M.S.

In this background we examine the purpose of the 1959 enactment. In construing the statute we must proceed on the theory that the general assembly intended something by the repeal of the old and the enactment of the new one in lieu of it. State v. Chadeayne, Mo., 323 S.W.2d 680, 684 [2] ; St. Charles Bldg. & Loan Ass’n v. Webb, Mo., 229 S.W.2d 577, 581 [5]. When the legislature acted, courts had held that tort actions against an administrator or executor filed or pending in the circuit courts were barred or abated, and were subject to dismissal on motion, unless notice thereof was filed in the probate court within nine months after the first published notice of letters. See Clarke v. Organ and Smith v. Maynard. At such time there was also in effect The Motor Vehicle Safety Responsibility Law, Ch. 303, RSMo 1949, V.A.M.S., and there was a widespread practice among motor vehicle operators of satisfying the requirements of the Responsibility Law by carrying liability insurance. Sections 379.-195 and 379.200 were in force which provided in effect that an insurance contract of this kind was liability and not indemnity insurance and that a judgment creditor had direct recourse to the insurance proceeds. Under these statutes the courts have held that the obligation on the part of the insurer to pay accrues the moment judgment against the insured has been rendered. Homan v. Employers Reinsurance Corp., 345 Mo. 650, 136 S.W.2d 289, 295, 127 A.L.R. 163; Dyche v. Bostian, 361 Mo. 122, 233 S.W.2d 721, 724. The obligation of the insurance company to pay the judgment creditor is direct and primary. Stedem v. Jewish Memorial Hospital Ass’n of Kansas City, 239 Mo.App. 38, 187 S.W.2d 469, 470-471. Under this legislative scheme a judgment creditor in a personal injury or wrongful death action, where the liability is insured, may have his judgment satisfied without disturbing the assets, if any, of the judgment debtor in his lifetime or of his estate after his death.

The existence of liability insurance is of no concern to the courts so far as the merits of the action are concerned, but, on the procedural side, the requirements of The Motor Vehicle Safety Responsibility Law, the widespread use of liability insurance to satisfy these requirements, and the entire legislative plan for the protection of the public must be considered to the extent that it sheds light on the legislative purpose in requiring an executor or administrator to be appointed and in permitting an action against him to be prosecuted to judgment in the circuit court when there are no assets in the decedent’s estate or no prospect of reaching them if there are assets.

In amending § 473.360, the general assembly must be presumed to have been familiar with the construction placed upon the original act and the new statute must be construed in the light of the defect it seeks to remedy and of the usages, circumstances, and conditions existing at the time the change was made. St. Louis Southwestern Ry. Co. v. Loeb, Mo., 318 S.W.2d 246, 252 [1]; Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 183 S.W.2d 77, 82 [9] ; Howlett v. Social Security Commission, 347 Mo. 784, 149 S.W.2d 806, 811 [11].

In this background of the law and the facts, we conclude that the repeal of the original act removed an impediment in the way of maintaining and prosecuting in the circuit court an action for personal injury or wrongful death, timely instituted but with respect to which the statutory notice of suit had not been filed in the probate court. This repeal had the effect of restoring the right to proceed under the general law as it existed prior to the original enactment. State v. Chadeayne, Mo., 323 S.W.2d 680, 684 [1]. Under the 1959 act the effect of failing to file the statutory notice in probate court is limited; it is not made an indispensable prerequisite to the maintenance of such an action and becomes important only if the judgment creditor undertakes to-file his judgment in probate, have it classified as a claim and paid out of assets in the probate court or out of assets that have been distributed. Sections 473.360 and 473.373. Thus the estate is protected and its administration is not impeded. If a notice of the-action is not timely filed in the probate court, a judgment obtained is in the same category as any other claim not presented in probate-court in the time provided by law. Sections 473.360, subd. 1, 473.370 and 473.373. The act tends to harmonize and give effect to the purposes both of the probate code and of the general statutes enacted to enable the plaintiff in a personal injury or wrongful death-action to prosecute his suit against an administrator or executor and if a judgment is obtained to have it satisfied by a direct recourse to liability insurance or sources other than the assets of a decedent’s estate. This procedure does not impose upon the insurance carrier any obligation not within the purview of its contract, and yet it permits the injured party to obtain the benefits-intended for him by the Responsibility Law, the insurance laws and other related statutes.

Rabin v. Krogsdale did not go beyond the issues involved and was correctly decided. Within the time permitted for filing the notice in probate court, the need for doing so was extinguished by the 1959 act. The trial court, therefore, erred in sustaining the motions to dismiss and in dismissing the actions.

The judgment is reversed and the cause remanded.

All of the Judges concur.