author: STOCKARD, Commissioner. PER CURIAM:

text:
    Connie MARTIN, Respondent, v. Nora Belie SLOAN, Administratrix of the Estate of Rolla Alexander Sloan, deceased, Appellant.
    No. 49995.
    Supreme Court of Missouri, Division No. 2.
    April 13, 1964.

      William H. Bruce, Jr., Centerville, Robert T. Smith, William L. Mason, Jr., St. Louis, for appellant.
    Jackson, Thomasson & Dickerson, Cape Girardeau, Schnapp, Cooper & Graham, Fredericktown, for respondent.
   STOCKARD, Commissioner.

In this action for wrongful death the jury awarded damages in the amount of $25,000 to the surviving widow, and the defendant has appealed from the ensuing judgment.

On January 24, 1961, a li^-ton Ford flat-bed truck which was being driven by Farrell Lee Martin, the husband of plaintiff-respondent, collided head-on with a Chevrolet automobile in which Rolla Sloan and Virgil Voyles were riding. All three persons died as the result of the collision without making any statement concerning the cause or circumstances of the collision,' and there were no other witnesses to the accident. The defendant-appellant is the admin-istratrix of the estate of Rolla Sloan, alleged by respondent and apparently found by the jury, to have been the operator of the Chevrolet automobile. Appellant first contends that the trial court erred in overruling her motion for a directed verdict because the evidence was not sufficient to present a jury question on the issue of (1) whether Rolla Sloan was the driver of the Chevrolet automobile, and (2) whether the driver of the Chevrolet automobile was negligent. Appellant presented no evidence. We shall set forth respondent’s evidence, and in the determination of the above issues we shall consider the evidence in the light most favorable to respondent and give her the benefit of all favorable inferences which reasonably may be drawn therefrom. Holmes v. McNeil, 356 Mo. 763, 203 S.W.2d 665, 668; Probst v. Seyer, Mo., 353 S.W.2d 798, 91 A.L.R.2d 1252.

At an indefinite time, but stated to have been “sometime a little after noon” of January 24, 1961, Rolla Sloan and Virgil Voyles were, for thirty minutes to an hour, at the Amsden Garage located a short distance west of the intersection of Highways 21 and 49 in Reynolds County. “Around 2:00 o’clock” Sloan and Voyles went to Barber’s Store, which was located at the above intersection. Sloan went into the store, “talked just a very few minutes” with Jim Cozine, and purchased six cans of beer. He then “took off” in a 1958 Chevrolet automobile and headed south toward Centerville with Voyles sitting in the passenger side of the front seat. The automobile belonged to Thomas Voyles, who was not otherwise identified. The collision with the Martin Ford truck occurred between Barber’s Store and Centerville on Highway 21 about 2.6 miles south of the intersection.

Highway 21, where the collision occurred, runs approximately north and south. It was of “blacktop” construction with a white center stripe. The day was extremely cold, the weather was partly cloudy but with good visibility for driving, and the highway was dry. After the collision the Ford truck was found on the east side of the highway headed north with the right rear dual wheels off the blacktop portion of the highway and on the shoulder of the highway. To the south of the truck, which was the direction from which it was traveling, and in the right hand side of the northbound traffic lane for a distance of fifty feet were “intermittent skid marks” leading to •the left rear dual wheels of the truck. On the east shoulder of the highway there were “dashes” in the gravel leading to the right rear dual wheels of the truck. There were no skid marks north of the place of the collision. Immediately west of the truck, but in the east lane of the highway, there were •gouge marks in the pavement, described by the sheriff of Reynolds County as being “like chicken tracks” extending to within •six inches of the centerline of the highway. Debris was scattered all over the highway, but the “main center” of the debris was four feet east of the centerline of the highway. The Chevrolet automobile was found in the •ditch off the west side of the highway with the back wheels and the trunk shoved into the embankment. Extending from the area described as the “main center” of the debris there were some marks, identified by the sheriff as skid marks, leading west to the Chevrolet automobile. Photographs of the Ford truck and Chevrolet indicate that they, particularly the Chevrolet, were virtually demolished. The speedometer of the Chevrolet after the collision “showed 68 miles an hour.” The lumber which had been on the truck was scattered along the highway, ■mostly on the east side, for a distance of 75 feet north of the truck. When found, both 'Sloan and Voyles were dead and lying on the "highway immediately south of the Chevrolet, and it can fairly be said that from their positions no inference is reasonably permissible as to who had been driving. Martin was “under the driver’s seat” in the cab of "his truck and was fatally injured. The only •evidence as to the time of the collision was the testimony of the sheriff that after being ■advised of its occurrence he drove “about two and one-half miles” to the scene and arrived there “probably between 1:30 and 2:00 o’clock, as I recall. I had just been back from lunch a short time.”

Respondent’s case was submitted to the jtxry on the theory that Sloan was the operator of the Chevrolet, and the question for decision is whether there was sufficient evidence from which a jury reasonably could find that fact. Proof as to who was -driving the Chevrolet automobile must necessarily depend upon the principle, if applicable, that proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference or rebut-table presumption that the fact exists at a subsequent time. We must first determine what facts, most favorable to respondent, the jury could find existed, and then determine whether those facts authorize the application of the above principle.

Sloan and Voyles were at Barber’s Store only a “few minutes” and left “around 2:00 o’clock” headed toward Centerville. The collision occurred 2.6 miles distant at a time so that the sheriff, after being notified of it, could drive to the scene from Centerville and arrive “between 1:30 and 2:00 o’clock.” These statements of time are necessarily estimates. But, since Sloan and Voyles stayed at the Amsden garage for thirty minutes to an hour, they could not have gone there after leaving Barber’s Store and arrived at the scene of the collision within the time limitations shown by the evidence. The jury reasonably could find that Sloan and Voyles first went to the garage, and then to Barber’s Store; that they then started toward Centerville, with Sloan doing the driving, and that at the time they were last seen they were 2.6 miles from the scene of the accident and driving toward it.

The general rule is stated in Suarez v. Thompson, Mo., 283 S.W.2d 584, 587, as follows: “ ‘Proof of the existence at a particular time of a fact of a continuous nature gives rise to an inference, within logical limits, that it exists at a subsequent time. * * * In other words, it will be inferred that a given fact or set of facts, the existence of which at a particular time is once established in evidence, continues to exist so long as such facts usually do exist. The inference is extremely faint in connection with matters of intrinsic imperma-nency; and where a fact or condition is not reasonably continuous in its nature, there is no presumption of its continuance. * *.’ ” See also 31A C.J.S. Evidence § 124. The contention of appellant is that the fact that one is operating an automobile at a given time or place is not a fact of a continuous nature which would authorize an inference, absent evidence to the contrary, that such fact continued to exist.

“The limits of time within which the inference of continuance possesses sufficient probative force to be relevant vary with each case. Always strongest in the beginning the inference steadily diminishes in force with' lapse of time, at a rate proportionate to the quality of permanence belonging to the fact in question, until it ceases or perhaps is supplanted by a directly opposite inference. In other word, it will be inferred that a given fact or set of facts, the existence of which at a particular time is once established in evidence, continues to exist as long as such facts usually do exist.” 31A C.J.S. Evidence § 124(1), pp. 223-224. It thus appears that whether, as a matter of law, an inference of continuance may be drawn depends upon the particular facts and circumstances of each case, and particularly with reference to time and distance between the established fact and the continued fact to be inferred.

It may be admitted that the fact that a person is operating an automobile is a fact of the nature to have a limited “quality of permanence,” but it does not mean that at no time subsequent to the established fact may there be an inference of continuance. The courts have recognized that upon proof that a particular person was driving an automobile shortly prior to an accident, an inference that he continued as the driver, absent evidence to the contrary, may be permissible. Flick v. Shimer, 340 Pa. 481, 17 A.2d 332; Morgan v. Peters, 148 Pa.Super. 88, 24 A.2d 644; Claussen v. Johnson’s Estate, 224 Iowa 990, 278 N.W. 297; Ohio Bell Tel. Co. v. Lung, 129 Ohio St. 505, 196 N.E. 371; Renner v. Pennsylvania R. Co., Ohio App., 103 N.E.2d 832; Huestis v. Lapham’s Estate, 113 Vt. 191, 32 A.2d 115; and the annotation in 32 A.L. R.2d 988 at pp. 992-993 where the above cases are cited and discussed. See also, Sparks v. Southeastern Greyhound Lines, D.C.Miss., 173 F.Supp. 896, reversed on other grounds, 5 Cir., 283 F.2d 44; Sutton v. Tanger, 115 Cal.App. 267, 1 P.2d 521; Sigel v. Gordon, 117 Conn. 271, 167 A. 719; Weidlich v. New York, N. H. & H. R. Co., 93 Conn. 438, 106 A. 323 (inference that a passenger in the back seat of an automobile remained there) ; Nicol v. Geitler, 188 Minn. 69, 247 N.W. 8. In some of these cases there were facts other than that of the identification of the driver of the automobile shortly before the collision. For example, in Nicol v. Geitler, supra, there was evidence that the passenger could not drive; in Sparks v. Southeastern Greyhound Lines, supra, the father permitted his son to use the automobile on the condition that he allow no one else to drive; in Morgan v. Peters, supra, the passenger had no drivers license; and in Claussen v. Johnson’s Estate, supra, the person last seen operating the automobile was the owner. However, if the inference is permissible, these additional factors merely strengthen it; the inference is not destroyed by their absence.

The record does not show what if anything in the nature of houses, stores, shops, taverns, and the like were between Barber’s Store and the scene of the collision which might have been an inducement to Sloan and Voyles to stop on the way with a possible change of drivers, but this is a rural area and we can take judicial notice that there is no town or community between the two places. There also is no evidence as to the ability or inability of Voyles to drive an automobile. The distance between the place where Sloan was seen driving the automobile and the place of the collision was only 2.6 miles on a rural road, and the time difference could not have been more than a few minutes. Under these circumstances, and in view of the rule announced in the above cases, we cannot say, as a matter of law, that the fact established by proof, that is, that Sloan was driving the automobile when last seen, was so improbable of continuance that a jury could not reasonably infer, in the absence of evidence to the contrary, that such fact continued for 2.6 miles as to distance and for the relatively few minutes as to time until the occurrence of the collision.

We turn now to the question of whether a jury issue existed as to the negligence of Sloan in the operation of the automobile in that he failed to operate it upon the right (west) half of the highway. Appellant argues that no one saw the Chevrolet on the wrong side of the road, and that after the collision both it and the truck were found on their proper side of the road.

There is no question but that the collision occurred because either the Chevrolet automobile or Ford truck was on the wrong side of the highway, or because both vehicles were partially on the wrong side, that is, “riding the centerline.” The jury could reasonably find that as the Ford truck approached the point of impact it moved to the right until its right wheels were approximately two feet east of the eastern edge of the blacktop. The “intermittent skidmarks” and “dashes” leading to the rear wheels of the truck practically preclude any other conclusion. There is no evidence from which it could be inferred that the truck was on the wrong side of the highway. While there was debris all over the highway, the “main center” of an eight-foot area of debris and some gouge marks in the pavement were all in the east lane which was the wrong side of the highway for the Chevrolet. Skid marks made by the Chevrolet started at the “main center” of the debris and extended westward across the highway to the Chevrolet automobile. This evidence of the location of the debris and of the gouge marks, and the evidence of the location of the skid marks made by the Ford truck and the Chevrolet constituted sufficient evidence from which the jury could infer that the point of impact occurred in the east lane of the highway, which was the wrong lane for the Chevrolet automobile, and the jury could find that in permitting or causing his automobile to cross over into the wrong side of the highway and into collision with the Ford truck Sloan was negligent in the manner submitted by respondent in her verdict directing instruction. See Thompson v. Jenkins, Mo., 330 S.W.2d 802; Lyon v. Southard, Mo., 323 S.W.2d 785; Brawley v. Esterley, Mo., 267 S.W.2d 655; Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736; Ruby v. Clark, 358 Mo. 318, 208 S.W.2d 251; and the exhaustive annotation in 77 A.L.R. 2d 580.

Appellant next asserts that the trial court erred in refusing a mistrial “on account of improper injection of an issue of liability insurance into the case, * * Out of the presence of the jury, in a conference between counsel and the court, counsel for appellant agreed that “Allstate Insurance Company has a contingent interest in the outcome of this litigation.” Counsel for respondent then stated: “ * * * We will ask leave of the Court during the voir dire examination to ask one question, interspersed among all of the other questions, giving it no specific prominence, not making it the first question or the last question, asking the question whether any members of the jury panel are employees of, stockholders in, or agent for or employee of the Allstate Insurance Company, to go to the juror’s qualifications.” Permission to ask the question was granted. The transcript shows that during voir dire the following occurred:

“Mr. Thomasson: * * * Are any members of this panel employees of at the present time or at the present time stockholders of or officers in the Allstate Insurance Company?
“There is no answer by any of the jurors. [Apparently this comment was added by the reporter],
“Mr. Thomasson: (Continuing) Or policy holders in and with the Allstate Insurance Company?
“Mr. Bruce: If the Court please, at this time, I ask the Court to declare a mistrial. The question has deviated from the one that was approved.
“The Court: It has, certainly, but I do not think the seriousness would require a mistrial in this case. Continue, gentlemen.
“Mr. Bruce: I ask the Court to instruct the jury to disregard the last question.
“The Court: The objection will be overruled. Continue.”

What occurred thereafter is not shown by the transcript.

Appellant admits in her brief that respondent had the right to determine, by appropriate means, whether any prospective juror had any disqualifying interest in the Allstate Insurance Company. See McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361. Appellant’s complaint is that “After assuring the Court that he would ask but one ‘insurance’ question to which he would give ‘no specific prominence,’ plaintiff’s counsel, after asking the question once, and after clear indication on the part of the panel that the answer was negative insofar as juror-interest in the insurance company involved was concerned, and after a significant pause as indicated by the record * * * plaintiff’s counsel asked a second ‘insurance question,’ the content of which was such that same could have been easily incorporated into the first question.” There is no contention that the substance of either question, absent the agreement between court and counsel, was erroneous, and we cannot say that absent the ageement that the asking of either or both questions would have been prejudicial. See Gooch v. Avsco, Inc., Mo., 340 S.W.2d 665; Bullock v. Sklar, Mo.App., 349 S.W.2d 381, 90 A.L.R.2d 318; Haley v. Edwards, Mo., 276 S.W.2d 153; Shepard v. Harris, Mo., 329 S.W.2d 1, 12. Bad faith is not shown, and whether a mistrial should have been declared in the circumstances presented rests largely in the discretion of the trial court. Haley v. Edwards, supra. We seen no reason to say that that discretion was abused.

Appellant’s next point is that the court erred in refusing to grant a mistrial “on account of the false statement made by plaintiff’s counsel in opening statement and to the effect that it was admitted that the automobile ‘came across the center line’ at the time of the casualty.” In the opening statement this occurred:

“Mr. Schnapp: * * * This wreck, with that evidence, and other evidence we will produce for you, definitely occurred on the right hand side of the road, on Farrel Martin’s side of the road; and it has been admitted that he met his death as a result of this wreck, and the Chevrolet that came across the centerline and hit this truck * * *.
“Mr. Bruce: If the court please, I have not admitted that. I ask the Court to declare a mistrial at this time.
“The Court: I think you had better let counsel correct his statement. I do not think he meant * * *.
“Mr. Schnapp: I did not mean to say they admitted he came across the centerline. They have admitted that Farrel Martin met his death as a result of this wreck, that is all they have admitted. The evidence will show that the Chevrolet did not apply its brakes
“The Court: Let me inquire. Do you have an objection now you wish to make after the correction was made ?
“Mr. Bruce: I repeat my objection and request that a mistrial be declared. The statement is so highly inflammatory that it is impossible to obtain a fair trial.
“The Court: I think not. Overruled.”

In her brief appellant attempts to import intentional misconduct on the part of respondent’s counsel, and by the statement that “the trial court was quick to jump in and to help plaintiff’s counsel to say T didn’t mean it,’ ” appellant apparently attempts to imply partiality on the part of the court. We cannot agree that such a charge or implication is justified. Appellant’s counsel interrupted before the sentence was completed, and it is not certain that the statement is subject to the interpretation placed on it by appellant. Whether it is would depend upon the inflection of voice and whether or not a pause occurred in the delivery. The trial court was present and heard the statement. An immediate and complete correction was made. In matters of this nature the trial court is in better position to judge the prejudicial effect, if any, of such occurrences, and of necessity it is vested with considerable discretion. State ex rel. Kansas City Public Service Co. v. Shain, 345 Mo. 543, 134 S.W.2d 58, 124 A.L.R. 1331. There is no basis for saying that there was an abuse of discretion.

After the opening statement of respondent, counsel for appellant stated: “The defendants will reserve their opening statement.” The court then said: “No, sir. This is a civil case. The rules require that you make your statement at this time. In criminal matters it can be reserved, but not in a civil case.” It may he admitted that there is no rule of this court specifically governing the time that the opening statement by the defendant in a civil case should be made. It may be that the trial court was referring to a local rule, and it would have considerable discretion in determining by rule the orderly procedure of trial. In view of appellant’s assertion that the trial court “went out of its way to lecture defendant’s counsel” in rejecting her “legitimate request that she be allowed to reserve [her opening] statement,” we shall quote a portion of appellant’s argument as set forth in her brief to this court. She there states: “Defendant put on no evidence in this case, and never intended to put on any, recognizing long before this case was tried the inherent weaknesses of any case plaintiff could put on. She had a right to hit the jury with this fact at the close of plaintiff’s case. Instead, she was forced by this improper ruling of the Court to state what only plaintiff’s evidence would show, and her legitimate trial strategy was thereby wrecked.” (Italics added). It thus appears that appellant’s real complaint is that she was denied the right to “hit the jury” at the close of plaintiff’s case with an argument under the guise of a reserved opening statement when she intended to present no evidence. In these circumstances, at the close of plaintiff’s evidence, there was nothing she could have said ethically in the form of an opening statement. We cannot agree that any “legitimate trial strategy” was denied appellant.

After the completion of the opening statements the following occurred:

“Mr. Bruce: If the court, please, the defendants, at this time, would like to request enforcement of the rule.
“The Court: We don’t have any place to put these witnesses without taking them out of the court room. I certainly don’t want to work a hardship on anyone. Our facilities here for separating these witnesses are not good.
“Mr. Schnapp: We have no objection to them remaining here. I don’t know about the other side, your honor.
“The Court: If we had any facilities for providing for the separation, I would have no objection. Mr. Bruce, I don’t see any real reason for it. If you have some reason that you would like to tell us out of the presence and hearing of the jury, we will be glad to hear it. Otherwise, I am just not going to do it.
“Mr. Bruce: That is my request, your honor.
“The Court: The request is denied.”

There is no contention that the trial court erred in refusing to enforce the rule. The alleged error is that the trial court refused to grant a mistrial “on account of the Court’s comments on defendant’s motion that the witnesses be excluded from the courtroom, * * No request for a mistrial was made, and if made it would have been without merit. We do not agree with appellant’s assertion in the brief that by the above incident the trial judge “adopted and exhibited a disparaging if not hostile attitude toward plaintiff's [defendant’s?] counsel.”

Appellant next asserts that the trial court erroneously refused to grant a mistrial because of “improper and prejudicial conduct of the Sheriff of the county * * * who repeatedly, over defendant’s objections and the Court’s admonitions, volunteered his opinions from the stand on most vital, contested issues in the cause, i. e., the point of impact in the collision and the movements and positions of the vehicles and at the time of collision, as well as improperly referring to supposed desperate efforts of plaintiff’s decedent to avoid the collision.” In her argument appellant asserts that the sheriff “time and time again did just what we above say he did while on the witness stand.”

Appellant does not set out in her brief the testimony referred to, but by page references she refers to seven incidents in the transcript. Our examination discloses that in five of the instances every objection made by appellant was sustained and every request to have the jury instructed to disregard a statement by the witness was granted. In one of the other instances the sheriff was asked to describe some tire marks. He replied: “Yes. Driving a truck myself some, I would have called it back here, approximately, 50 feet from where it started, what I would refer to as fanning the brake.” Appellant’s counsel said: “I object to that. He can tell what he saw, but not what he thought he did.” The court then stated, “He may answer. Continue,” and the witness replied: “I seen dashes made by two duals, something in this order, down to the truck on the blacktop, on this side.” No request was made to strike the answer objected to, or that the jury be instructed to disregard either answer. In none of these six instances was there a request for a mistrial. Only two (or possibly only one for the reason hereafter noted) of the above matters pertained to testimony concerning the point of impact.

The only assignment of error in the motion for new trial pertaining to testimony of the sheriff is that the court erred in refusing to grant a mistrial because of “The erroneous and prejudicial conduct of the sheriff, plaintiff’s witness, in repeatedly, and after admonition of the court not to do so after sustaining plaintiff’s objections thereto, referring to certain locations on the highway at the scene as being the place or point of collision or impact.” However, as previously mentioned, the sheriff made reference to the point of impact once, and he also referred to “where the collision taken place,” which could have been a reference to the general scene of the collision rather than the point of impact. On each occasion the court sustained the objection and took every remedial action requested by appellant. No request for a mistrial was made, and therefore, the trial court did not refuse a mistrial, and no prejudicial error occurred.

The remaining incident referred to occurred several pages later in the transcript. The sheriff was asked whether or not skid marks leading to the Martin truck “were freshly made,” and the following occurred:

“A. From where the truck left the road, my observation was -.
“Mr. Bruce: I object to that, that is certainly a conclusion of the witness.
“The Court: Yes, it is.
“Mr. Bruce: I am going to have to ask that the court declare a mistrial at this time. This witness has done this repeatedly over objection.
“The Court: The request for a mistrial will be denied. You may continue with your examination. Rc-ask your question, please.
“Mr. Bruce: Would your honor instruct the jury to disregard the remark?
“The Court: The jury will be instructed to disregard the last remark of the witness.”

This was the only request for a mistrial which appears on the pages of the transcript referred to in appellant’s brief and it did not pertain to testimony concerning the point or place of impact.

The unresponsive statement, or possibly two statements, by the sheriff concerning the point of impact was not elicited by respondent’s counsel, and there is nothing to indicate any bad faith on the part of counsel or witness. The objections were sustained, and the jury was instructed to disregard the statements when requested to do so. We find no merit to appellant’s contention of prejudicial error. We note, in reference to testimony concerning the point of impact, that the following occurred during the cross-examination by appellant’s counsel of a highway patrolman:

“Q. Were you asked this question [when questioned by an attorney but not on deposition], ‘Was there any oil, water, glass or anything on the road there to indicate where on the road that the impact'occurred ?’ You were asked that question, weren’t you ?
“A. Yes.
“Q. Did you give this answer, ‘Yes, there was, sir, about eight feet in diameter, a large circle of oil and debris, which appeared to be the point of impact?’ ”
“A. I don’t remember at this time the exact size of the debris. I was just saying the main center of it was in the northbound lane.”

It thus appears that the only testimony of any witness concerning the place or point of impact, based on the location of debris or other conditions of the highway, which was permitted to remain in evidence, was brought out by appellant.

Exhibit A consisted of- a paper board upon' which two vertical and parallel lines were drawn representing the east and west edges of the blacktop pavement of Highway 21, with a broken line between the two lines representing the centerline of the highway. During the testimony of the sheriff he drew on that board two rectangles representing the location and position of the Ford truck and Chevrolet automobile at the time he arrived at the scene of the collision. He also drew thereon two circles showing the location. of the bodies of Sloan and Voyles, a larger circle showing the general area of the gouge marks he described as “being like chicken tracks,” several small marks showing the location of the “intermittent skid marks” and “dashes” made by the dual wheels of the truck, and marks to show the location of the lumber thrown from the truck. Appellant asserts that “no proper foundation for the use of the same was laid” and that it was error to use it because “by plaintiff’s own evidence the use, or continued use, of said exhibit would tend only to confuse the jury.”

When the sheriff was asked to draw on the exhibit the location of the truck, appellant objected “for the reason there is no way of making such diagram to scale and if it is not to scale it may be misleading.” We find no objection to the use of the exhibit on the ground .that “no proper foundation” was laid. During the direct examination of the sheriff he was asked what certain marks were which appeared in Exhibit G, a photograph, and he replied that they were “skid marks,” and that they “led from the east side of the white line across over to the automobile.” The following then occurred :

“Q. Can you plat those skid marks on this diagram in relation to the car and the truck ?
“A. I am afraid, Mr. Schnapp, the jury or nobody else would be able to read this drawing.
“Q. You think it would make the drawing unintelligible, then I withdraw my question, * *

It is obvious from this, contrary to the assertion of appellant in her brief, that the sheriff’s statement concerning the confusing feature of the exhibit was limited to the result if he attempted to draw thereon the location of the skid marks, and the request that he attempt to draw them was withdrawn. Exhibit A is before this court. It is of substantial benefit in understanding the testimony of the sheriff. The fact that the exhibit was not to scale is a matter of impeachment going to its weight rather than admissibility unless it is so incorrect to be misleading. State v. Brooks, Mo., 159 S.W.2d 646; State v. Smith, Mo., 357 S.W.2d 120, 123. When it is understood that the markings of the sheriff were not drawn to scale, and the jury was told that they were not, we see nothing in the use of the exhibit which would tend to confuse or mislead the jury, but on the contrary it unquestionably would tend to give the jury a better understanding of the testimony of the witness. See Collins v. Leahy, Mo.App., 102 S.W.2d 801; and 98 C.J.S. Witnesses § 327.

During oral argument the following occurred :

“Mr. Schnapp: “ * * * She [respondent] would have her husband with her if it hadn’t been for this incident. He would be supporting her and the children. Pay her so that if you see her on the street a week from today or a year from today or five years from today that you can look her in the eye and say * * *
“Mr. Bruce: I object to this, passion and sympathy is not involved in this decision. I ask that a mistrial be declared.
“The Court: The jury will understand what its obligation is in this case, Continue. The request for a mistrial will be denied.”

We do not know what the remainder of the sentence would have been if it had been completed, and we assume that it was not completed because we have set out all that is shown by the transcript. It does appear, however, that what was. said and what was contemplated probably would have been an improper appeal to-sympathy. But, the only relief requested was a mistrial, which if granted would be a most drastic result. A trial court necessarily must be allowed a substantial degree of discretion in determining whether an incident such as this calls for a mistrial, and it also has the opportunity to review the effect of such argument when ruling on a motion for a new trial. See Marler v. Pinkston, Mo., 293 S.W.2d 385. We cannot say that the trial court abused its discretion in refusing the only request for relief made ; a mistrial.

Appellant next challenges Instruction No. 1, respondent’s verdict directing instruction, but that challenge is limited to the contentions that there was insufficient evidence to support the submissions that (1) Sloan was the driver of the Chevrolet automobile, and (2) that he was negligent in failing to drive on the right half of the road. Appellant also challenges Instruction No. 5, which defines the term “highest degree of care,” on the ground that (1) there is no evidence that Sloan occupied such a status that the definition of the term “would apply to any duty owed on his part,” and (2) “there is no evidence as to what the 'circumstances’ of the collision were so as to make a standard of care based on ‘the same or similar circumstances’ at all applicable so as to make it possible for the jury to determine ‘negligence’ or ‘negligently’ under this instruction * * These contentions are ruled by our previous determination that respondent did present a jury case on the issues of whether Sloan was driving the Chevrolet automobile and whether he was negligent as such driver.

Appellant asserts that Instruction No. 4 “is a complete misdirection on the issue of burden of proof” because it provided, in part, that “As to the issue of the burden of proof being on plaintiff to prove defendant was negligent, you are instructed that * * (Italics added). Appellant asserts that "there was'no issue in this case as to any negligence on the part of the defendant,” who was not Rolla Sloan but was the administratrix of his estate.

.The use in this instruction of the term “defendant” instead of “defendant’s intestate” or some other term could not possibly have confused or misled the jury to the extent that it brought in a verdict for the party not intended. If appellant was of the opinion that this oversight might have been confusing, just a word to the court would have brought about a correction. We are not impressed with the contention now made that the jury was misled or confused.

Appellant also challenges Instruction No. 2, the measure of damages instruction, because, she says, there is no evidence of (1) the value of support furnished to respondent by her husband, and (2) the extent of the financial burden “of supporting a family of two children cast upon plaintiff by reason of the loss of her husband.” The instruction is also challenged because “it purportedly submits to the jury only ‘pecuniary loss’ ” but “prejudicially refers to the statutory limit of $25,000.00 applicable in death cases, in spite of the fact that the evidence showed pecuniary loss to plaintiff in an amount far less than $25,000.00, and there was no proof nor submission of any aggravating circumstances which would have entitled the jury to go to the statutory limit for plaintiff in this case.” In another point appellant contends that the verdict is “grossly excessive” because (1) it “bears no relation to any pecuniary loss to plaintiff,” and (2) there were no aggravating circumstances shown. She then asserts that for these reasons “taken together with the misconduct of the Court, plaintiff’s counsel, and plaintiff’s witness” the verdict is “clearly the result of passion, bias, and prejudice in favor of plaintiff and against defendant,” and a new trial must be awarded. In her last point appellant also contends that the verdict of $25,000 is excessive by $23,'786.75 “because plaintiff showed pecuniary loss of only $1,213.25 [apparently referring to the amount of funeral expenses] and no aggravating circumstances were shown.” She contends that if this cause is not “reversed outright” or a new trial granted, then this court “should order a remittitur of $23,786.75 herein.” These three points will be considered together.

The evidence discloses that respondent, at time of trial, was twenty-one years of age, that she and Farrell Lee Martin were married on October 26, 1957, that there were two children born of this marriage, both living at time of trial, a girl Debra Luella, four years of age, and a boy Manuel Lee a little over two years of age. Respondent was living with her husband at the time of his death. Farrell Lee Martin worked for his father and had an income of “close to $300” a month. At the time of his death he was 26 years of age with a life expectancy of 40.18 years, and he was in good health and physical condition. Respondent and her children were totally dependent upon him for their support. The funeral expenses were $1,213.25.

The legislative intent, as expressed in Section 537.090, RSMo 1959, V.A.M.S., “is to give the jury a broad discretion in computing damages in actions for wrongful death, within the limit prescribed, based upon the pecuniary loss of every kind and character which, under all the circumstances of the particular case, will be sustained by those entitled to recover as a direct result of the death, and based also upon circumstances in mitigation or aggravation of the wrongful act, neglect, or default which caused it [when applicable]; and that this discretion given the jury in computing fair and just damages should not be interfered with unless it has clearly been abused.” Steger v.. Meehan, Mo., 63 S.W.2d 109, 115; Haftz v. Heimos, Mo., 352 S.W.2d 596; Domijan v. Harp, Mo., 340 S.W.2d 728. It is, of course, true that aside from regard to aggravating and mitigating circumstances, which were not submitted in this case, the recovery of damages under the foregoing statute must be limited to the pecuniary loss to the beneficiaries. Patison v. Campbell, Mo., 337 S.W.2d 72, 75; Richeson v. Hunziker, Mo., 349 S.W.2d 50, 52. However, it has consistently been held that in determining pecuniary loss in a wrongful death case it is proper for the jury to take into account the deceased’s earning capacity, Shepard v. Harris, Mo., 329 S.W.2d 1, and in an action for the wrongful death of the husband, as here, the jury may consider that the wife’s pecuniary loss includes the additional burden of supporting minor children. Wilkerson v. Missouri Pac. R. Co., Mo.App., 69 S.W. 2d 299; Howard v. Thompson, Mo.App., 157 S.W.2d 780. In fact, it has been said that the law implies a pecuniary loss from the negligent killing of a woman’s husband. Steinmetz v. Saathoff, Mo.App., 84 S.W. 2d 434.

We have found no case which supports appellant’s contention that in an action brought by the widow for the wrongful death of her husband, in order for her to recover anything other than actual funeral expenses, she must present evidence “as to the value of the support” furnished her and as to the “extent of the financial burden” of supporting her minor children. Neither can we find a case that supports her contention that under the facts of this case she is entitled to a remittitur of all of the damages awarded except the actual funeral expenses, and we add that appellant cites no such cases.

There is no testimony concerning what portion of her husband’s income was used for the benefit of respondent, but she and the two children were totally dependent upon him, and in addition to respondent’s personal pecuniary loss, she has now the support of the two minor children. Respondent’s evidence was not as complete as it should have been, but “the amount of damages to be awarded in this class of cases is necessarily speculative to a large extent and many elements and contingencies enter into the calculation, if indeed it can be called a mathematical calculation.” Goyette v. St. Louis-San Francisco Ry. Co., Mo., 37 S.W.2d 552, 556; Heppner v. Atchison, Topeka and Santa Fe Railway Co., Mo., 297 S.W.2d 497. See also Brewer v. Rowe, 363 Mo. 592, 252 S.W.2d 372. Certain general rules may be given the jury in the form of instructions, and certain facts in the form of evidence are helpful, such as the earning capacity of the deceased, his life expectancy, the extent of dependency of the plaintiff, and the added financial burdens. But all of these are but mere guides and factual matters for the jury to consider in exercising a sound judgment. The award of damages in the amount of $25,-000 to a 21-year-old widow with two children, the oldest being four years of age, for the wrongful death of her 26-year-old husband who was their sole and only support and who was in good health with a life expectancy of over 40 years cannot be said as a matter of law to constitute an abuse of the discretion vested in the jury to determine the damages in the form of pecuniary loss in wrongful death cases.

The judgment is affirmed.

BARRETT and PRITCHARD, CC, concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: STORCKMAN, Judge.

license: Public Domain

text:
    SUBURBIA GARDENS NURSERY, INC., Plaintiff-Appellant, v. COUNTY OF ST. LOUIS, Missouri, Maurice Abramson, Albert Bailey, John Dowling, Russell Grantham, John O’Hara, Comprising All of the County Council of the County of St. Louis, Missouri, and James H. J. McNary, Supervisor of the County of St. Louis, Missouri, Defendants-Respondents, and Mildred Ann Krekeler, Intervenor-Appellant. Mildred Ann KREKELER, Plaintiff-Appellant, v. SUBURBIA GARDENS NURSERY, INC., Defendant-Appellant.
    No. 50079.
    Supreme Court of Missouri, En Banc.
    April 13, 1964.

      Daniel P. Reardon, St. Louis, for appellant Mildred Ann Krekeler.
    Norman C. Parker, St. Louis County Counselor, Arthur M. Wolff, Asst. County Counselor, for respondent, St. Louis County-
    Cupples, Cooper & Haller, by Irving L. Cooper, Clayton, for appellant Suburbia. Gardens Nursery, Inc.
   STORCKMAN, Judge.

This proceeding is a consolidation of a-, declaratory judgment action and a suit in equity for injunctive and other relief. It involves the determination of the activities-in which a nursery may engage in a district: in St. Louis County zoned for that purpose: among others. Suburbia Gardens Nursery;, Inc., instituted the declaratory judgment action against the County of St. Louis and certain county officials for a determination of the rights and duties of the parties under the St. Louis County Zoning Ordinance. Thereafter, Mildred Ann Krekeler, an adjoining landowner, brought the equity suit against Suburbia Gardens Nursery, Inc.; the specific relief requested was an injunction against the erection of buildings on Suburbia’s land for which a building permit had been issued by St. Louis County. Mrs. Krekeler was allowed to intervene in the declaratory judgment action and eventually the two suits were combined. The consolidated action was tried before the court without a jury. By its judgment the trial court declared the terms and conditions under which Suburbia could operate a nursery on its land and found that certain other uses were prohibited. Suburbia and Mrs. Krekeler both appealed.

Suburbia and Mrs. Krekeler own adjoining tracts of land on the south side of U.S. Highway 40 between Schoettler Road and Woods Mill Road in St. Louis County. Mrs. Krekeler purchased her 72-acre tract in 1948 and moved onto it with her husband, Clemens G. Krekeler, in 1950. Mr. and Mrs. Krekeler’s son and his family live in another house on the land. The Krekeler home is about 1200 feet off the highway and is well landscaped. There are also two lakes on the premises. Suburbia proposes to establish and operate a nursery on its adjoining tract of 10.74 acres. It has been issued building permits for certain structures to be used in connection with the nursery. The district zoning regulations for the Suburbia and Krekeler tracts are the same.

The applicable zoning ordinance, § 1003-120 of the St. Louis County Revised Ordinances 1958, insofar as here pertinent provides :

“1. The regulations contained in this Section are the District regulations in the ‘B’ Single Family District. These regulations are supplemented and qualified by additional general regulations contained elsewhere in this Chapter and are made part of this Section by reference.
“2. Use Regulations: Except as otherwise provided, business and industry are specifically prohibited, and a building or premises shall be used only for the following purposes:
“(1) Single Family Dwellings.
“(6) Forests, nurseries, farms and truck gardening; provided, however, that no poultry or livestock shall be housed or confined within one hundred feet of any single family dwelling that is located upon an adjoining lot containing less than three acres.
“(8) Roadside stands, offering for sale only farm products which are produced upon the premises, including a sign, advertising such products, not exceeding twelve square feet in area, and which stands and signs shall be removed during any season for the period when they are not in use.
“(11) Accessory buildings and uses customarily incident to the above uses, not involving the conduct of a business, including quarters for servants employed on the premises, a private garage, and a private stable, except that any detached accessory building shall be located not less than sixty feet from any front lot line.”

Suburbia was incorporated in 1959 and its principal stockholders were William Cohen and Joel Kalemis. On April 25, 1961, the company purchased the 10.74-acre tract in question but at the time of trial was operating its nursery business at Lindberg and Olive Street Roads in Creve Coeur, St. Louis County. The tract is somewhat an irregular square with a frontage on the highway of 856.43 feet. The area in-which the Suburbia and Krekeler tracts are located consists largely of homes on 10 to 20-acre tracts. The surrounding area is predominately farm land. Except for two nonconforming uses, there are no commercial enterprises on Highway 40 east of the tract for a distance of 12 miles. There is a nursery located on Schoettler Road approximately 1(4 miles west and about 350 feet south of Highway 40.

The principal witnesses for Suburbia were Mr. Cohen and two owners and operators of nurseries in St. Louis County who had been in business since prior to 1946 when the St. Louis County Ordinance was originally enacted. Suburbia’s evidence tended to prove that practically all trees and plants sold by nurseries in St. Louis County were grown at other places and are brought to the nurseries for further growth and preservation before they are sold. This is due to the fact that plants can be grown from seed more advantageously in other places. Apparently there are no wholesale nurseries in St. Louis County. In general, Suburbia’s business activities include the growing and transplanting of trees, plants and shrubs, cultivating and preserving them, advising customers, and drawing sketches showing where the nursery products should be planted for the purpose of landscaping the customer’s property -most advantageously. In operating a nursery, fertilizers, insecticides,' mulches, agricultural machinery and irrigation equipment are used. Suburbia lias about 13 employees who are often used interchangeably in various activities.

Suburbia sells nursery products which are grown, transplanted, propagated, cultivated or grafted on its land, and generally plants the products on the customer’s property. Most nursery trees and plants are delivered to Suburbia in a ball of earth and are usually planted in the soil, sawdust, or other materials for further growth or preservation. Sometimes plants are bought and sold in pots. Mr. Cohen testified that the placing of plants in bins of sawdust for display purposes is a part of transplanting. It is not the intention of Suburbia to sell garden hose, sprinklers, nozzles, mowers, spreaders, carts, sprayers, dusters, tools, trellises, garden ornaments, pottery and similar items. It plans to use railroad ties, bricks, sand, gravel, crushed rock, and similar material in connection with the business activities to be conducted at the new location but not to sell them to customers.

Suburbia’s application to St. Louis County for a building permit was accompanied by plans which called for the erection of an administrative or office building, a lath house for shade-loving plants, a garage and storage building, and the installation of sidewalks and paving for a parking area. The architect’s plans called for electrical outlets for flood lights but Mr. Cohen testified that the company did not at this time intend to use floodlights on the property •and that the plans were not final and were subject to change. Suburbia’s plans called for operation of the business only on week ■days during daylight hours. Suburbia expects to have 6 acres to devote to growing crops after the installation of the proposed buildings and paved areas. Mr. Cohen was uncertain whether a sign would be used to identify the business.

Robert L. Eggers of the Arrowhead Nursery and Joe W. Myers of Westover Farm and Landscape Company in St. Louis County described the nature and extent of the operation of a nursery business from a time prior to 1946 to the present. Mr. Eggers described his business as the growing and selling of nursery stock, moving stock from the nursery to his customer’s premises and transplanting it there, building walls and patios, drawing plans, spraying, making lawns and sodding; he stated that landscaping, incidental to the nursery business, was very important and without one a person could not do the other. Mr. Myers testified that his company also operates a greenhouse and sells pottery and garden equipment. Mr. Cohen testified that it was the intention of Suburbia Gardens to do and perform those things customarily done in the nursery and landscaping business.

St. Louis County in general supported the Krekeler position but offered no evidence independently. Mrs. Krekeler , introduced photographic and other documentary exhibits and testified that she was the owner of the property on which she resided. Mr. Krekeler in substance testified that he objected to the construction of the proposed buildings on Suburbia’s tract and especially a retail sales office but that he had no objection to the use of the land for growing nursery stock if it was moved to another location for resale. To the extent necessary, further evidence will be referred to in connection with the discussion of the legal questions involved.

The relevant portions of the trial court’s judgment and decree are as follows:

“In accordance with the pleadings herein and the evidence adduced relevant thereto, on the petition of plaintiff, Suburbia Gardens Nursery, Inc., it is by the court found and declared that under St. Louis County Revised Ordinances, 1958, Section 1003.120, said plaintiff may operate a nursery on the lands described in the petition, under the following conditions and for the following purposes.
“1. For the propagation, cultivation, and growth on the premises of trees, shrubs, plants, vines and the like from seed or stock.
“2. For the sale of trees, shrubs, plants, vines and the like, propagated, grown and cultivated on the premises from seed or stock, including the sale of such plants purchased elsewhere and transplanted into the soil of said property.
“3. For the construction, operation and use of a roadside stand for the sale of nursery products grown on the premises with the use of a sign advertising such sale only as set forth in Section 1003.-120, 2(a), St. Louis County Ordinances, 1958.
“4. For the employment of such persons and the use of vehicles and mechanical equipment, including irrigation equipment, on said premises only as is necessary and essential to the cultivation, propagation and growth on the premises of shrubs, plants, vines and the like, under 1., 2., and 3., above.
“5. For the storing and use on the premises of only such fertilizers, fungicides, sterilized soil, sand, mulch, dirt, wood, rocks and other related materials, and objects essential and necessary to the propagation, growth and cultivation on the premises of shrubs, plants, trees, vines, and the like; from- seed or stock.
“6. Accessory buildings and uses customarily incident to the above uses, including bins for the heeling-in of nursery products and to provide bins for dry planting materials and edgings, not involving the conduct of a business, including quarters for servants employed on the premises, a private garage, and a private stable, except that any detached accessory building shall be located not less that sixty feet from any front lot line.
“7. For paving a parking area immediately adjacent to said roadside stand for use in connection with sales therefrom.
“It is further found and declared that under said Ordinance Section 1003.120, plaintiff, Suburbia Gardens Nursery, Inc., may not make the following uses of the property described in the petition:
“(a) Operate on said property a landscaping business and trade, including the keeping for sale on said property drainage materials, edgings, bricks, railroad ties, sand, gravel, crushed rock, and items of similar nature.
“(b) Construct on said property an office building for the administrative handling of its nursery business.
“Under the petition of plaintiff, Mildred Ann Krekeler, in Case No. 245085, plaintiff Suburbia Gardens Nursery, Inc., is enjoined from doing the acts numbered (a) and (b) above only.”

In general the contentions of Suburbia on appeal are that the decree is not sufficiently specific, that it should be permitted to construct an administrative building in connection with its nursery operation, to perform landscaping activities and to sell certain commodities, and that the right to an injunction was not established. Mrs. Krekeler contends that the court erred in permitting Suburbia to operate a roadside stand for the sale of nursery stock and to use a sign in connection with it, and in failing to prohibit Suburbia from conducting a retail business on its premises.

A nursery as that term is used in the zoning ordinance, Chapter 1003, and particularly § 1003.120, is “an area where trees, shrubs, or plants are grown for transplanting, for use as stocks for budding and grafting, or sale.” Webster’s 3d International Dictionary. Other definitions are to the same effect. See Town of Needham v. Winslow Nurseries, Inc., 330 Mass. 95, 111 N.E. 2d 453, 456 [3], 40 A.L.R.2d 1450. Subsection 2(6) of § 1003.120 permits the premises to be used for “Forests, nurseries, farms and truck gardening”. The definitions and the context contemplate the sale of the produce of the nursery.

In the sense here involved, a business is a “commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some independence of judgment and power of decision.” Webster’s 3d International Dictionary. See also Semple v. Schwarz, 130 Mo.App. 65, 109 S.W. 633, 635-636; Pitts v. Maupin, 230 Mo.App. 221, 88 S.W.2d 384, 386 [2]; Freese v. St. Paul Mercury Indemnity Co., Mo.App., 252 S.W.2d 653, 655 [4], The operation of a nursery for financial gain is a business enterprise. The zoning ordinance permits this use in practically all districts. See §§ 1003.110 through 1003.210, St. Louis County Ordinances 1958.

In determining the meaning of an ■ordinance or statute pertaining to zoning, as well as other subjects, the courts generally seek to ascertain the intention of the lawmakers by giving the words used their ■ordinary meaning, by considering the entire act and its purposes, and by seeking to avoid unjust, absurd, unreasonable, confiscatory or oppressive results. St. Louis Southwestern Ry. Co. v. Loeb, Mo., 318 S.W.2d 246, 252 [1, 2]; Laclede Gas Co. v. City of St. Louis, Mo., 253 S.W.2d 832, 835 [2, 3]; Killian v. Brith Sholom Congregation, Mo. App., 154 S.W.2d 387, 395 [12] ; Evans v. Roth, 356 Mo. 237, 201 S.W.2d 357, 364 [5].

The respondents Krekeler and St. Louis ■County seem to proceed on the theory that no business activity of any kind is permitted ■under § 1003.120. The use regulations, subsection 2, starts with this statement: ■“Except as otherwise provided, business and industry are specifically prohibited, * * Italics added. Among the exceptions provided is the nursery business. It is a permitted business use within the limitations ■of the zoning ordinance.

An activity that is a reasonably ■necessary incident to the nursery business will not be deemed to be “the conduct of a business” in violation of § 1003.120-2(11) of the zoning ordinance.when such use or activity :is. performed as an .integral and essential part of the nursery business even though it- would not be a permitted use as an independent business or undertaking;^ State ex rel. Szodomka v. Gruber, 201 La. 1068, 10 So.2d 899, 902-903 [7] ; Call Bond & Mortgage Co. v. Sioux City, 219 la. 572, 259 N.W. 33, 35 [1]. For example, providing a parking area for automobiles of customers of the nursery would be a permitted incidental use whereas the operation of a parking garage or facility on the premises as an independent business venture would not be. The operation of a nursery is a use already granted and permitted by subsection 2(6). Subsection 2(11) refers to additional uses accessory and customarily incident to the conduct of a nursery but proscribes grafting onto the nursery business a separate or independent business use or activity.

The principal issues in this case have been considered and decided in Town of Needham v. Winslow Nurseries, Inc., 330 Mass. 95, 111 N.E.2d 453, 40 A.L.R.2d 1450. The bill in equity was to- restrain the use of defendant’s premises in Need-ham for purposes alleged to be in violation of a zoning bylaw (ordinance) of the town. The ordinance was quite similar to the one here involved. Among other similar uses, it permitted one-family detached houses and farms, stock farms, greenhouses, nurseries and truck gardens. The fact that Win slow also operated a greenhouse does not distinguish the case because the questions presented related chiefly to the nursery. The greenhouse and nursery business was located in a single-family-residence district on a tract of land less than half as large as the one here involved. The buildings on the land consisted of a sales and growing greenhouse, to which a greenhouse workshop, a storage building, a garden shop and an office were attached. Nearby there was a second storage shed and another greenhouse with a wing and heating plant. A new sales greenhouse,. 60 by 40 feet, w.as in process of construction. The floor area of all these buildings was slightly in excess of 12,500 square feet. The land not occupied by buildings was used for growing nursery sfpck.^ Winplow also, proposed, to construct a parking lot 260 feet long by 80 feet wide for the accommodation of 60 automobiles. The volume of business dollarwise was more than twice as much as in the instant case. The Supreme Judicial Court of Massachusetts considered the various activities and determined what uses could and what uses could not be made of the premises. The opinion is well reasoned and its results are strongly persuasive of the prop-ér interpretation and application of the instant ordinance. The instant case has been well briefed and we have considered all the cases cited by the parties. They have been helpful but none of them are controlling. The determination of the uses permitted in this case must be made on the basis of the wording of this particular ordinance and the context in which it occurs.

The conduct of any business including the operation of a nursery requires the keeping of books and records—sometimes under compulsion of federal, state or local laws. Other clerical work is also required. A place to consult with customers and other business visitors rather than in the open where the nursery stock is grown is essential to the conduct of the nursery business. The ordinance contemplates that quarters for the performance of these and similar functions may be provided in an accessory building on the premises. It does not matter whether it is designated an administrative building or rooms in a building, an office or a countinghouse. The zoning ordinance permits the maintenance of such quarters for office or administration purposes on the premises, but the use must be restricted solely to the nursery business conducted on the premises.

We have also concluded that Suburbia may advise and give suggestions to customers concerning nursery stock suitable for landscaping, where it should be placed on the customer’s property, make sketches thereof and attend to the planting solely in connection with the sale of nursery stock from the tract in question. As stated in Needham, 111 N.E.2d 457-458: “Doubtless the defendant may engage in landscaping as a part of the planning and preparation of the land for the planting of trees and shrubs which it intends to sell from its nursery. It may enter into contracts for such work. We think, however, its premises cannot be used as headquarters for a contracting business which does not concern the transplanting of the defendant’s own nursery stock or the stock which has physically become a part of the nursery. Such use exceeds what is reasonably accessory to its principal business, as does the maintenance on the premises of more trucks than are necessary for the delivery of its own products.”

Paragraphs 3 and 7 of the decree relating to the construction and operation of a roadside stand should be eliminated entirely. Subsection 2(8) of § 1003.120 authorizes “Roadside stands, offering for sale only farm products which are produced on the premises.” We have concluded that nursery stock is not within the purview of this provision, and that a roadside stand for the sale of nursery stock is not otherwise authorized. Farm products mature seasonally, are severed from the plant or soil, and are readily transported to and displayed in stands where they may be sold. Nursery stocks are not in the same category and it would be out of keeping with the object and purposes of the ordinance to permit their sale from roadside stands.

Suburbia’s further contention that it should be permitted to sell on the premises drainage materials, edgings, bricks, railroad ties, sand, gravel, crushed rock and items of a similar nature is denied. Such commodities are not the produce of a nursery and are not accessory or incidental to the nursery business as authorized by the zoning ordinance. As further stated in the Needham case, 111 N.E. 2d 453, 457 [6]: “Although denied the right to maintain a store, we think that the defendant is not precluded from selling to customers in connection with its sale of plants such fungicides, insecticides, chemicals, peat moss, humus, mulches, and fertilizers as are intended to be used in preserving the life and health of the plants sold.”

At one time Mr. Cohen testified that Suburbia did not intend to conduct a retail store for the sale of the items now urged ttpon us. The fact that such objects are sold in nurseries elsewhere does not make them accessory or incidental uses under the ordinance. What we have said in this regard also disposes of appellant Krekeler’s contention that the decree fails to prohibit Suburbia from conducting a retail business on the premises. Retail sales must be limited to nursery produce in the manner stated.

The appellant Suburbia also complains that the decree is not sufficiently definite in setting out and specifying the rights of the parties under the ordinance. Some of the matters referred to are not presently justi-ciable. So far as appears from the record presented, all other issues have been disposed of. There is no issue in the case regarding an entrance sign. This and other matters will have to be worked out by the parties consistent with the zoning laws and other ordinances that may be applicable. No question was presented on this appeal as to the design or construction of the nursery buildings and other facilities. The only objection was respecting their purpose and those issues have been settled.

The costs on appeal are assessed one-half against Suburbia and one-fourth each against St. Louis County and Mrs. Krek-eler.

In the respects indicated the judgment and decree is reversed; in all other respects it is affirmed, and the cause is remanded for further proceedings consistent with this opinion.

All concur.


author: BARRETT, Commissioner. PER CURIAM.

text:
    Perry C. RAGAN and Mary Ola Ragan, Plaintiffs-Appellants, v. Benjamin LOONEY et al., Defendants-Respondents.
    No. 49877.
    Supreme Court of Missouri, Division No. 2.
    April 13, 1964.

      Meredith B. Turner, Stewart, Reid & Turner, Springfield, for appellants.
    Elvin S. Douglas, Douglas & Douglas, Bolivar, for respondents.
   BARRETT, Commissioner.

This controversy between three sets of cousins, in essence an action to quiet and determine title to 200 acres of land in Polk County, arises out of “a flaw in the title” created when their grandfather in 1875 devised the land to his wife until death or remarriage then to three of his sons, the fathers of the present parties, and “the heirs of their bodies.” Insofar as material here the 1875 devise was “and in the event of the death or marriage of my said wife, then and in that event, all of said * * * real estate shall descend-and absolutely belong to my said sons, Benjamin Leonidas Looney, Jesse Edward Looney and William Stanford Looney, and the heirs of their bodies.”

In response to an action by one of the cousins, Ola Looney Ragan (an only survivor of one of the three sons), to quiet the title in her, the other thirteen cousins and one child of a deceased cousin filed an answer in which each claimed an undivided one-sixteenth interest. In addition they filed a cross bill in which they have attacked certain subsequently described proceedings and actions, and in a second count asked for partition of the land. The court found all issues against the plaintiff and her husband and instead of quieting the title in the plaintiffs has found that the plaintiffs and the defendants are tenants in common “in equal shares of an undivided one-sixteenth interest each” and accordingly has decreed partition, and the plaintiffs have appealed.

Jesse Edward Looney, mentioned in the will, was the father of the appellant-plaintiff, Mary Ola Ragan, and Benjamin L. and William S., with the exception of a child of a deceased grandchild, were the fathers of the respondent-defendants. In 1895 two of the sons conveyed their interests to the third brother, William S., and from his grantees, through deeds and mortgages the Heilman Commercial Trust and Savings Bank of Los Angeles, California, in 1913, came into whatever title the three sons may have had. In any event in 1913 the Heilman bank or its predecessor instituted an action in the Circuit Court of Polk County against the testator’s nineteen grandchildren, the children of the three sons (who were all alive and either in person or by publication were served with process), to quiet the title to their 200 acre tract of land. The gist of Heilman’s claim was that the grandfather’s will had not been recorded, hence from an examination of an abstract of title it had no notice of the will and the interests of the testator’s grandchildren, the present parties plaintiff and defendant. It was held in that suit that the 1875 will had been admitted to probate, that the fact appeared in the bank’s abstract of title and therefore it was not an innocent purchaser entitled to cut off the testator’s grandchildren as “heirs of the body” of the three sons. The consequence was that the bank had an estate for life, measured by the lives of the three sons, and the nineteen grandchildren-cousins owned the remainder. Hellman Commercial Trust & Savings Bank v. Looney, 271 Mo. 545, 197 S.W. 144.

And now to the circumstances involved in that suit giving rise to this action. The nineteen cousins, all defendants in the Hellman case, were minors and Mr. Herman Pufahl was appointed their guardian ad litem. Since Mr. Pufahl was a lawyer he also acted as counsel for the minors throughout the Heilman litigation and as indicated by the result successfully defended their rights and interests. Mr. Pufahl was appointed guardian ad litem for these minor children even though their fathers were then alive and aged, Benjamin L., 52, Jesse E., 50 and William S., 48, (William S. was said to have abandoned his children by 1913). The three sons died in 1947, 1958 and 1944, Jesse E., the father of the plaintiff Ola being the last to die in 1958 and after which event this litigation was commenced. In any event, after the filing of the mandate and opinion in the Heilman case Mr. Pufahl filed a motion in which he set forth the fact of his appointment and defense of the suit, including the fact that he had briefed and argued the case in this court, and therefore asked the court “to make him an allowance to pay” for his services to the minor defendants. Upon this motion the court entered an “interlocutory judgment” allowing Mr. Pufahl a fee of $500 but ordering personal notice to resident minors and notice by publication to nonresident minors. Thereafter, one of the minor defendants in that suit, Ola Looney, then married to Perry C. Ragan, appeared by counsel and filed a motion to set aside the interlocutory decree on the ground that “this court is without jurisdiction over said minors for the purpose of rendering said judgment.” The court sustained that motion and thereby, of course, set aside the $500 allowance to Mr. Pufahl.

At the following term''of court Mr. Pufahl instituted “an áction for services rendered” against all the minor defendants. In the petition he set forth the fact of the Heilman bank suit, the fact of his appointment as guardian ad litem of the nineteen minors who were in fact the only defendants, and the fact of his rendition of services as their counsel and asked for a fee of $500. After service of process Mr. O. P. Hollingsworth, a lawyer, was appointed guardian ad litem of “all of the minor defendants” in Mr. Pufahl’s suit. Subsequently, according to the court’s records, Mr. Hollingsworth filed an answer for the minor defendants. It may be interpolated here that except for three cousins (one of whom was Ola’s brother) who died without issue and with the noted exception of one great-granddaughter who is a respondent, all of these cousins, grandchildren of the 1875 testator Benjamin Looney, were alive and were parties defendant to the 1913 and 1917 suits and are now parties to the immediate suit instituted in 1960. Thereafter the record recites, “Trial by court. Judgt. for Plf. (Mr. Pufahl) for $500.” To satisfy Mr. Pufahl’s judgment the land was levied upon and on November 15, 1918, sold by the sheriff of Polk County for the sum of $440 to W. H. McGuire (Ola Ragan’s great-uncle) who on March 22, 1919, for the recited consideration of one dollar, conveyed the land by quitclaim deed to Ola Ragan and her brother W. S. Looney. This latter deed was recorded on May 26, 1923 and together with other deeds was found in the lock box of Jesse E. Looney, Ola’s father, on his death in 1958. In July 1930 Ola and her husband, Perry, succeeded by purchase, $1500, to the life estate of the Heilman bank (then in liquidation) and in 1942 by deed to her brother’s interest and thus subject to the claim of the respondents has become the fee owners, of the land. But the problem involved upon this appeal is the validity of the Pufahl judgment and the execution sale by the sheriff.

Specifically the respondents claim that the petition in the Pufahl suit failed to ■state a cause of action and that therefore the court had no jurisdiction nf that action. The basis of the claim is that in the Hellman litigation “the defendants (the 19 minors) were the prevailing parties” and since the action was at law they as minor defend■ants were -not • chargeable with the fee which, they now assert, should have been taxed as Costs against the plaintiff bank, the losing party. .«In the first place, this contention overlooks the dual capacity in which Mr. Pufahl acted. It was the duty of the court, after commencement of the suit and service of process, to appoint a guardian ad litem for the minor defendants (V.A. M.S. § 507.190) and that, admittedly, the court 'did. And it may be, as a general rule, as the respondents now contend, that a guardian ad litem is entitled to ho other fee than “that which is taxed as part of the costs in the proceeding.” 27 Am.Jur., (Infants) § 126, p. 846. But fees or costs chargeable as “remuneration eo nomine” are those allowed strictly for services in his capacity as guardian. Annotation 9 A.L.R. 1537. A court appointed guardian ad litem may of course employ counsel (Nagel v. Schilling, 14 Mo.App. 576) but if the guardian is also a lawyer he may also act as counsel for his wards and if he does and the services were necessary he is entitled to a reasonable fee for his services in that capacity or for his combined services. 27 Am.Jur. § 128, p. 846; Annotation 9 A.L.R. 1. c. 1543.

Costs are statutory allowances to a party to an action for his expenses and there is no statute, except in partition, authorizing the allowances to a guardian ad litem as costs. Nevertheless, in particular actions such allowances, even in the absence of express statute, have been assessed as costs. Annotation “Allowance of fees for guardian ad litem appointed for infant defendant, as costs” 30 A.L.R.2d 1148. While there is no general statutory authority for fees to guardians ad litem, the duty of the court to appoint necessarily implies the obligation to pay and the power of the court to fix reasonable compensation. Jones v. Yore, 142 Mo. 38, 43 S.W. 384; Jones v. Yore, 158 Mo. 83, 57 S.W. 1134. And if there is property or a fund in court for disbursement “there would seem to be no tangible reason why the court should not order such allowance to be paid out of the infant’s interest in court.” Walton v. Yore, 58 Mo. App. 562, 565; Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321. There was no fund in this case and while the subject matter of the Heilman litigation was the land it is not claimed that it was so in the hands of the court that it could by the court’s mere decree be subjected to the payment of Mr. Pufahl’s fee.

There is another factor to this phase of the appeal, Ola Looney Ragan, plaintiff in this suit, was one of the nineteen defendants in the Heilman suit and in Mr. Pufahl’s action. And while she did not know or personally remember either Mr. Pufahl or E. L. Ragsdale or Lewis Luster, Springfield lawyers who had had no previous connection with the litigation, Ragsdale and Luster were employed to represent her and it was upon their motion that the court set aside its interlocutory order and the original $500 allowance to Mr. Pufahl. After Mr. Pufahl instituted his independent action against the minors, including Ola, these lawyers did not appear in her behalf and there was no contest by her to the merits of his suit for a fee. And as to the Pufahl suit, it is a general rule that “before a judgment will be set aside * * * the applicant for relief must show the existence of a meritorious defense to the cause of action alleged against him.” Annotation “Scope and character of meritorious defense as condition of relief from judgment” 174 A.L.R. 10, 19. It is urged in another connection that there were two valid defenses to be made to Mr. Pufahl’s suit, one, the reasonableness of his $500 fee, and, two, the fairness in that action of his attaching 258 acres of land, 58 acres in excess of the 200 involved in the Heilman case. No cases are cited as to the attorney fee and no argument is made to demonstrate the fact, and it would appear as a matter too plain for argument that a fee of $500 for his services in the Heilman litigation was indeed reasonable even in 1918. It is not necessary to encumber this opinion with an explanation and accounting of the 58 acres, originally a part of the testator’s farm. It was attached, it is assumed improperly, but for many years the title to this piece of land has been in the Pierce family and neither the plaintiffs nor the defendants made an effort to include that land or the Pierces’ title in this litigation, there has been no decree in this case respecting it, the Pierces are not complaining and it is not in point of fact involved in this appeal. But recurring again to the general rule of a “meritorious defense,” the mere statement of the rule indicates that it is not every defense, even as to a judgment for attorneys’ fees, that will justify the setting aside of a judgment, and both of the claims made here fall in that category. 174 A.L.R. 1. c. 130, 147. In conclusion as to this point, if the fact entered into the trial court’s rendition of the present decree, it may only be said, contrary to the respondents’ assertion, that the court did have jurisdiction of the Pufahl suit.

The respondents’ second contention with respect to the Pufahl judgment is that it “was procured by fraud” and was therefore void. The reasons given for this assertion are that the minor defendants “were involuntary parties” for whom a guardian ad litem was required and “yet O. P. Hollings-worth, as their guardian ad litem, contrary to his duty as such, and with the acquiescence of the plaintiff, Herman Pufahl, performed no duties nor services as such, obviously acted as a figurehead only, and did nothing to defend the minors, and was not even present when the Pufahl judgment was entered” and failed to make the two allegedly valid defenses of the reasonableness of Mr. Pufahl’s fee.and the unfairness of attaching 58 acres of land not involved in the Heilman litigation. In this connection it is said that all the documents, deeds and court files and records relating to the Hellman and Pufahl cases between 1913 and 1918 . comprise “facts and circumstances tending to prove lack of actual trial of the Pufahl case,” inequality of the parties, dereliction of duty on the part of Mr. Hollings-worth and “the existence of a scheme for Pufahl to collect his fee without contest, and for the ipinor defendants’ interest in the land to be secured for Mary Ola Ragan and W. T. Looney (her brother) for a nominal sum, which when considered together amounted to collusion and fraud in the procurement of the Pufahl judgment.”

The respondents’ argument as to this point is set forth at some length because it is not proposed and is not necessary to a disposition of this appeal to answer each of these assertions and arguments in detail. It is not known just what an “involuntary party” to a lawsuit may be, in one sense at least most defendants are involuntary parties. Mr. Hollingsworth, aged 89 years when this case was tried, was called as a witness by the respondents. He became a lawyer in Polk County in 1911, was probate judge 12 years and retired about 1948. He was uncertain if not confused as to the dates of his admission to the bar as well as to other dates, in any event he testified that he had no recollection of the Looney land, did not remember whether he was present at the execution sale and as to whether he was guardian ad litem in the Pufahl suit said, “I don’t remember a thing about it. I don’t remember the case.” It would serve no useful purpose to enter upon a further discussion of the duties of a guardian ad litem, as indicated there was in fact no valid defense to Mr. Pufahl’s suit for a fee and while he may have methodically set about to collect his fee and in the process caused the property to be sold there was no nefarious “scheme” on his part and, without setting forth the record and demonstrating the fact, it may be said that there is no evidence whatever of “fraud” in the sense employed here on the part of either Mr. Pufahl or Mr. Hollingsworth in the procurement of the judgment. Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031; Reis v. La Presto, Mo., 324 S.W.2d 648. It may well be that: in his capacity as guardian ad litem Mr.. Hollingsworth was not as diligent and vigilant as he should have been. It is also possible however that in 1918 he followed the-usual if lax custom then prevailing of filing-of a perfunctory answer, but as indicated there was no valid defense to the merits of" Mr. Pufahl’s suit for a fee, and the inferences permissible from the circumstances, are not comparable to Kennard v. Wiggins, 349 Mo. 283, 160 S.W.2d 706, “In the present case the answer of the guardian ad litem-did not invoke the frequently used answer of merely submitting the rights of the minor to the protection of the court, nor did the-answer suggest the construction most favorable to the minor, but the answer suggested, as we see it, a construction (of “heirs of the body”) detrimental to the-vital interests of the minor defendant.” It' is not intended now to minimize the duties, and standards of guardians ad litem but another purpose of the statute (V.A.M.S. §" 507.190) requiring their appointment “is, that controversies be settled. * * * It is-especially a matter of public interest that land titles be settled. If it were not possible (in the absence of fraud) to bind infants by court decrees, no .matters could ever be finally adjudicated until all parties, who might be interested, arrived at legal' age.” Spotts v. Spotts, 331 Mo. 917, 931, 55 S.W.2d 977, 983, 87 A.L.R. 660.

In connection with the claim of fraud and also of some significance as to all of' the respondents’ arguments as to the Pufahl suit, judgment and execution sale there is one fact that cannot be ignored. When both the Heilman and Pufahl suits were instituted Mary Ola Ragan was a minor and an-“involuntary party” to both actions. And on-her behalf alone was the Pufahl fee contested in the first instance. In any event she was a party defendant along with her respondent cousins to all the litigation and now there is the obvious anomaly of her asserting the validity of all those proceedings of over forty years ago while the respondents assert their invalidity. Of •course, it is said that there was a scheme to secure “unto Jesse Looney’s children (Mary Ola Ragan and W. T. Looney) the rights of all minor defendants in the Pufahl suit for a nominal sum.” There was, as indicated no direct evidence of a “scheme” .and the circumstances pointed to are the fact that Ola’s great-uncle W. H. McGuire purchased at the execution sale for $440, and four months later deeded the land to Ola and her brother “with no revenue stamps on the deed.” This deed was not recorded for four years and together with other documents was found in her father’s lock box after his death in 1958. But whatever inference one may place upon these circumstances, assuming that Jesse Looney set .about beginning in 1918 to secure the title in his children, there is no inference that he colluded, conspired or acted in concert with Mr. Hollingsworth or Mr. Pufahl, and his conduct or actions would not for these reasons be a ground or reason for setting aside the Pufahl judgment. In this case unlike many of those relied on, neither Mr. Pufahl as judgment creditor nor anyone for or on his behalf, either directly or indirectly, bid on or bought the property at the execution sale and thus as to this judgment and sale there is not to be “found from the evidence, as we now find, that the whole ■matter of the enforcement of this lien was a scheme” by one to collect an alleged debt of $55, by another to collect a fee and by still another to keep some of the parties in ignorance and thereby finally acquire title to the property for a wholly inadequate consideration as in Van Graafieland v. Wright, 286 Mo. 414, 430, 228 S.W. 465, 471.

The other circumstance relied on as making the execution sale “void” is inade•quacy of the purchase price of $440. In support of this claim the respondents called three witnesses, one a neighbor 88 yeárs old, evidently mistaken as to several important factors, who testified that in 1918 the 258 acres were of the value of $80 an acre or $20,640. The other witness was the husband of one of the very few respondents who appeared in the cause who gave it as his opinion that in 1918 the 258 acres were of the value of $100 an acre. The third witness, respondent Utley Looney, also gave a value of $25,000. The qualifications of these witnesses and the probative force of their testimony aside, the respondents, using these values and this acreage and the tables and examples for computing the value of life estates (V.A.M.S. §§ 442.530, 442.540. and 442.550) say that “the remainders of the defendants were worth over $6800.” It is then said that $440 was a wholly inadequate price for the remainder interest and that the sheriff should have returned the execution unsatisfied. This computation included no doubt the interests of Ola and her brother and again, of course, Ola would necessarily uphold the execution sale. Then too a tract of 200 acres would reduce the respondents’ total computations. And even if the computations are accurate the purchaser in 1918 was nevertheless buying uncertain remainder interests (it turned out to be exactly 40 years) and the chance of prolonged litigation. An officer conducting a public sale under execution may refuse to accept the best or only bid because it is inadequate, particularly if by reason of time or circumstance reasonable competition has been suppressed or there is some reason to suppose that a delay or another sale would produce better . results. Annotation 110 A.L.R. 1077 in which the Missouri cases are collected.

But it has been pointed out repeatedly that “in every case where a sheriff’s sale has been set aside in Missouri until 1938, there have been additional circumstances which provided grounds for setting the sale aside” (8 Kansas City L. R. 192; Davis v. McCann, 143 Mo. 172, 44 S.W. 795) usually fraud. Van Graafieland v. Wright, supra. This rule has since been modified when the consideration was so shockingly inadequate as to constitute fraud. Wieser v. Linhardt, Mo., 257 S.W.2d 689. While in retrospect a hypothetical inadequacy of consideration may he demonstrated, there is no compelling or shocking inference in a 1918 sale of numerous remainder interests for $440, and the circumstances do not warrant the inference of neglect of duty on the part of the sheriff in completing the execution sale. V.A.M.S. §§ 513.235, 513.275; Hammond v. Scott, 12 Mo. 8.

Under the statutes the devise in grandfather Benjamin Looney’s 1875 will to his wife during widowhood, then to his three named sons “and the heirs of their bodies” created a life estate (the Heilman bank’s interest) measured by the lives of the three sons, the last of whom died in 1958, and contingent remainders in fee in the parties plaintiff and defendant to this appeal. V.A.M.S. §§ 442.490, 474.470; Kennard v. Wiggins, supra. And in this connection it should be parenthetically noted that throughout the years of the life estate and since 1918 the contingent remainder grandchildren had an interest that they could sell and convey by quitclaim (Grimes v. Rush, 355 Mo. 573, 197 S.W.2d 310, in which Mr. Pufahl was counsel) or protect by suit, including a suit to quiet title. V.A. M.S. § 527.150; 2 Restatement, Property (Future Interests) §§ 162, 165 ; Fountain v. Starbuck, Mo., 209 S.W. 900; Annotation 144 A.L.R. 769, 781, 803. And the remainder interest may be protected even though the statute of limitations may not run against remaindermen until after the death of the last surviving life tenant. Revare v. Lee, Mo., 257 S.W.2d 676. In any event the respondents’ final contention is that the present decree in their favor is proper “because otherwise the effect(s) of the Pufahl judgment and sale(s) under execution(s) on said judgment would be the wrongful destruction of defendants’ rights as remain-dermen under the will of Benjamin Looney.” In other words, the respondents contend for the indestructibility of contingent remainders (“The Destructibility of Contingent Remainders in Missouri,” Willard L. Eckhardt, 6 Mo.L.R. 268; 25 Mo.L.R. 392), at least in the circumstances of this case in which they assert “that the procuring of the judgment by Mr. Pufahl for his guardian ad litem fee developed into a scheme” to accomplish that purpose. Fountain v. Starbuck, supra; Hughes v. Neely, Mo., 332 S.W.2d 1.

As has been indicated, it is not a fair inference from this record that Mr. Pufahl was a party to a “scheme” either to secure the title to this property in Ola or to cut off the contingent remainder interests of the appellant Ola and the other respondent Looney descendants. This case is in nowise comparable to Fountain v. Starbuck, Hughes v. Neely, or to many other cases, including Picadura v. Humphrey, Mo., 335 S.W.2d 6, in which in addition to inadequate consideration and wholly without reason for parting with valuable property the court also found actual fraud in the procurement of a judgment all directed to the purpose of eliminating “heirs of the body” from a deed, thus improperly destroying their remainder interests. To further but briefly illustrate and distinguish, in Jones v. Arnold, 359 Mo. 161, 221 S.W.2d 187, the court found fraud in the procurement of a judgment reforming two deeds by striking out the words “and his bodily heirs.” In part, the court said, “The defendants in the prior suit had a valid meritorious defense thereto, to wit, that the words sought to be stricken out by reformation were intentionally inserted; that the estate conveyed was in compliance with an agreement entered into between the widow and children of J. H. Arnold; and that the deeds were executed in the form shown to carry out an intention expressed by J. H. Arnold in his lifetime.” The court found fraud and collusion and thereby minors were deprived of their meritorious defense, and, finally, “the original action was not prosecuted in good faith, but was a mere scheme and plan to use the lawful processes of the court to wrongfully deprive the defendants of their interest in the described real estate” by destroying the contingent remainders. And in Moore v. Moore, Mo., 329 S.W.2d 742, a 1925 tax sale of 520 acres of land was set aside. But a grandson caused the tax suit to be instituted, there was an agreement in writing that an uncle should become the purchaser and reconvey to the grandson upon payment of taxes and expenditures. It is not necessary to detail the circumstances, the court concluded that the grandson and uncle “so manipulated the record title thereto as to receive the benefit of the full value thereof after freeing them, as they thought and intended, from entailment to the heirs of the body of Paul Handy.” The very title of Professor Eckhardt’s leading article, “The Destruction of Contingent Remainders In Missouri,” carries the suggestion that contingent remainders are not in all circumstances inviolate and may not in any event be destroyed. It is believed, as the cases indicate, that remainders may not be improperly destroyed, collusively or fraudulently, or for the purpose of thwarting some lawfully manifested intention of a testator (Gordon v. Tate, 314 Mo. 508, 284 S.W. 497), or for the single and avowed purpose of ridding property of what someone may deem an unnecessarily vexatious restriction on the transfer and acquisition of title to property.

As guardian ad litem and in his capacity as a lawyer in representing the minor “heirs of the body” in the Heilman litigation Mr. Pufahl was entitled to a fee. At the instigation of or on behalf of at least one of the heirs his right to compensation was resisted and disallowed as an integral part of the Heilman case. The consequence was his institution of the suit for a fee against his former wards, his attachment of the land and finally his becoming their judgment creditor. There are two views, sometimes depending on particular statutes, as to whether contingent remainders may be sold on execution. 21 Am.Jur. (Executions) § 414, p. 207; Annotations 60 A.L.R. 803; 30 L.R.A.,N.S., 115; 23 L.R.A. 642. The rationale of the conflicting views and the policy considerations confronting courts are fully examined and set forth in 43 Minn. L.R. 217, Halbach, “Creditors’ Rights in Future Interests.” Professor Simes takes the general position that “whatever the debtor can voluntarily convey can also be reached by his creditors,” and, therefore, of course, contingent remainders would be subject to levy and execution. Simes & Smith, Future Interests, §§ 1923-1925. And that is also the view of the American Law Institute, subject of course to the restriction that the interest is not a part of a trust and is one the debtor may transfer (2 Restatement, Property, Future Interests, Sec. 166) and subject also to the caveat generally applicable to purchasers at judicial sales that “the real equities, and not the paper equities, existent at the time of the [execution] sale are controlling.” Munday v. Austin, 358 Mo. 959, 218 S.W.2d 624, 630.

In this jurisdiction “real estate” within the meaning of the execution statutes includes “all estate and interest in lands” (V.A.M.S. § 513.010), and property liable to be seized and sold on execution includes “(5) All real estate whereof the defendant, or any person for his use, was seized, in law or equity, at the time of the issue and levy of the attachment, or rendition of the judgment, order or decree whereon execution was issued, or at any time thereafter.” V.A.M.S. § 513.090. For more than eighty years under these statutes, subject to the noted caveat, remainders have been subject to execution “whether the estate in remainder thus created was vested or contingent * * * the interest of said Joseph H. Mc-Phccters was an alienable interest, and, therefore, subject to sale under execution.” White v. McPheeters, 75 Mo. 286, 292; Gordon v. Tate, supra; Bock v. Whelan, Mo., 30 S.W.2d 607, 608; Kay v. Politte, 344 Mo. 805, 810, 129 S.W.2d 863, 865, 122 A.L.R. 1145.

In view of all these considerations the judgment is reversed and the cause remanded for the entry of a decree in conformity with this opinion.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . Incidentally the 1920 census shows 3.-450 farms in Polk County with a total acreage of 379,211 acres and h total valuation of- the land and buildings of §23,-' ■ 977,258, producing an average price per acre of .approximately .$63.22. Missouri Year Book of Agriculture,' 1921, p. 282.