author: PRITCHARD, Commissioner.

text:
    The AETNA CASUALTY & SURETY COMPANY, a Corporation, Appellant, v. Rowena B. HAAS and Andrews Exterminating Company, Inc., a Corporation, Respondents.
    No. 52787.
    Supreme Court of Missouri. No. 2.
    Jan. 8, 1968.

      Clem W. Fairchild, Herbert M. Kohn, Kansas City, for plaintiff-appellant. Linde, Thomson, VanDyke, Fairchild & Lang-worthy, Kansas City, of counsel.
    Max W. Foust and Duke W. Ponick, Jr., of Foust, Moudy & Jacobson, Kansas City, for Rowena B. Haas.
    Roger W. Penner of Meyer, Smith, Bott & Penner, Kansas City, for defendant-respondent Andrews Exterminating Co., a Corporation.
   PRITCHARD, Commissioner.

Appellant sought to be relieved of liability to pay a judgment in principal amount, $23,081.00, which was rendered upon default against its named insured, respondent Andrews Exterminating Company, Inc., in an issued Comprehensive General Liability Policy of insurance. The grounds asserted for declaratory relief that there is no coverage under the policy are (1) an exclusionary clause of no liability is effective because the explosion (in respondent Haas’ private residence which was being fumigated by a fogging insecticide operation) occurred while the residential property was in the “care, custody or control of the insured”; and here (2) the policy specifically excludes coverage when gas of any kind is used by the insured, it being contended that the fogging operation is a use of gas. The trial court denied relief to appellant and found that there was insurance coverage and appellant was liable for said judgment rendered against its insured, Andrews, and further rendered judgment for $1,154.-05 interest on that judgment and for $1,500.00 as expenses and attorney fees incurred in defending the original action upon Andrews’ counterclaim for those three items, a total of $25,735.05.

It was stipulated that all depositions taken in the cause would be received in evidence the same as if the witnesses were present in court. The direct testimony, in the deposition of George C. Eaden, who performed the fogging operation in Mrs. Haas’ residence, was read: He has been in the exterminating business for 38 years, applying insecticide and rodenticide to kill insects and rodents. On Mrs. Haas’ house he was using Dyna-Fog equipment to bring a chemical from the liquid to the fog. The machine is taken from place to place inside the house, from the basement up through it. His custom is to start fogging in the basement in the majority of times. A check is first made to see that all windows are closed and that there is no cross-ventilation to take the fog out, and to see that there are no people in the house. When Eaden first went to Mrs. Haas’ house, he talked to her a few minutes and went to the basement which he fogged. Mrs. Haas was still in the kitchen, the last place he was going to fog, when he started the fogging machine. He presumed that he told Mrs. Haas to leave the house, “because it was understood she would have to be out.” He told her she would have to be out because the fog would be too strong for her. Mrs. Haas was in the kitchen when he finished the basement and went upstairs; she was gone when he came back down again. She was instructed that she would have to stay out of the house four or five hours. Eaden came down the front stairs from the second floor, worked the front part of the house, and then toward the rear where he was going to exit from the rear door, which was closed. He was in a little alcove when the explosion occurred. He went to the neighbor’s house where he saw Mrs. Haas. Eaden’s further deposition testimony (objected to at the trial on the ground that questions called for conclusions and invaded the province of the court) was that as long as he was doing the job he could take whatever steps were necessary to seal up the house and do the job right, and while he was there he could do as he pleased in those regards; that from his long years of experience in the field, if someone walked in the house he could have told them to leave, “Yes, I have the privilege to stop anyone from coming in.” He had the privilege to take whatever steps were necessary to do the job right and protect the health and safety of others. If Mrs. Haas had wanted to come in while he was fogging the house he would have stopped her, or anyone else, if he had already fogged the upstairs and part of the first floor. Many times he just hooked the screen so that persons could not come in while he was upstairs — to keep someone from coming in he felt it was his prerogative and part of what he should do.

Mrs. Haas’ deposition testimony is that when she left the house she left Eaden there by himself; she assumed that he could do whatever was necessary to properly do the job — he could open and close windows, doors, or drawers or “whatever he wanted to do.” So far as she knew he could put the fog anywhere he wanted; she expected him to exercise whatever functions he had to inside the house to do his work properly; with respect to going back in the house or when she could go back in she would look to Eaden for advice; she left it all up to him. At the time of the explosion, Mrs. Haas was sitting in a neighbor’s house, to the rear of her house, drinking coffee. She saw the roof of her house lift up about a foot. When Eaden commenced the fogging operation Mrs. Haas was in her own home washing dishes in the kitchen. She remained in the house while Eaden fogged the basement and the second floor, and when the odor got so bad it was hurting her throat she said to Eaden, “I believe I’ll go to the neighbors, because the odor is so bad.” Eaden did not tell her to leave; he did not tell her that once he started putting in the fog it would be dangerous to her. She called the Andrews office to arrange the fogging and told them she wanted it done while she was at home. She did not give Eaden the key to the house, but had it with her when she went over to the neighbor’s house. She told him that as soon as he was through spraying to let her know and she would lock the house and then go on to work. She had not been at the neighbor’s house very long when the explosion occurred. Appellant contends that paragraph J of the exclusions of the policy is applicable: “This policy does not apply: (J) under coverage D, to injury to or destruction of (1) property owned or occupied by or rented to the insured, or (2) except with respect to liability under sidetrack agreements covered by his policy, property used by the insured, or (3) except with respect to liability under such sidetrack agreements or the use of elevators or escalators at premises owned by, rented to or controlled by the named insured, property in the care, custody or control of the insured or property as to which the insured for any purpose is exercising physical control, * * (Emphasis added to the phrase relied upon by appellant.) The trial court made a finding and conclusion that this clause is ambiguous and that “a practical construction of the contract of insurance in favor of coverage has been made by the plaintiff insurance company by paying a prior, similar type loss under identical policy provisions without invoking the exclusions which are relied upon in this action.” The evidence upon which the trial court’s action is based is that on an identical Comprehensive General Liability policy (of which the instant policy is a renewal without further reservation, restriction or insertion of clarifying exclusion) appellant in 1960 paid a loss occasioned by Andrews’ damage to property of one E. J. Sweet totalling $679.-38, wherein Andrews was spraying for silverfish in a home and the insecticide left a residue upon the wallpaper and furniture. Mr. William H. Lillis, a partner in the agency issuing Aetna’s policies, testified that the manual classification for the premium to be charged was selected knowing the kind of work Andrews was in. After the loss was occasioned to Mrs. Haas’ residence, appellant’s adjuster, Michael G. Zipkin, advised Raymond E. Beaird, owner of Andrews, that the policy covered the Haas loss. Zipkin, on May 31, 1962, wrote to Beaird and requested that he write a letter (the form of which was enclosed by Zipkin) to the manufacturer and distributor of the Dyna-Fog machine advising that Andrews would look to it for indemnity for the Haas loss. Beaird did send a letter in modified form to that manufacturer. Appellant denied coverage for the Haas loss on July 12, 1962, on the sole ground of said Exclusion J relating to care, custody and control. In a subsequent meeting with Lillis, Zipkin was told by Lillis that he felt the loss was covered by the policy for two reasons: that the prior Sweet loss was paid by appellant (indicating coverage for a following similar loss) and that the nature of the work performed by Andrews was such that if a care, custody and control exclusion would be applied they would have no real benefit under the policy, “Helm (Mr. Lillis) still feels there is coverage. He says if there is no coverage why does Andrews need our policy, since all his work is done in a home in which, according to us, he has care, custody and control.” No point is here made relative to the admissibility of any of this evidence.

Appellant says Exclusion J is not ambiguous, and is therefore not open to construction and the trial court erred in finding that the clause is ambiguous.

The clause in question is not patently ambiguous so that extrinsic evidence may not be resorted to to resolve the uncertainty. Rather, there exists a latent ambiguity with respect to what the exclusions are applicable, and with respect to what coverage is afforded the insured under the general insuring provisions of the policy. In this case the appellant by its policy undertook to afford insurance to the Andrews Exterminating Company, Inc., “To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.” Under Condition 4. Limits of Liability — (c) Aggregate- — Coverage D., it is stated, “Subject to the limit of liability with respect to ‘each accident’, the limit of property damage liability stated in the declarations as ‘aggregate operations’ is the total limit of the Company’s liability for all damages arising out of injury to or destruction of property, including the loss of use thereof, caused by the ownership, maintenance or use of premises or operations rated on a remuneration premium basis or by contractors’ equipment rated on a receipts premium basis.” (Italics added.) It seems quite clear that the general insuring agreements, as written, afforded coverage to Andrews’ operations — an exterminating business. The latent ambiguity becomes pronounced when one attempts to discover to just what property the “care, custody and control” exclusion was meant to apply. The clause is uncertain as to its application, and as applied to the facts and circumstances is susceptible to more than one interpretation. Of strong significance is the manner in which appellant’s agents and claims representative treated the clause. First, appellant through its agent, Lillis, had knowledge of the type of operation of Andrews Ex - terminating Company, Inc. That company, as the evidence shows, had done exterminating work for Lillis. Second, a previous loss occasioned by damage to property during an exterminating operation in the private residence of E. J. Sweet was paid. The policy covering that loss was renewed in the same form — without any clarifying language of Exclusion J. Appellant’s adjuster or claims representative advised that there was coverage for the Haas loss, and requested Beaird (Andrews’ owner) to write a demand letter of indemnification for the loss to the manufacturer and distributor of the Dyna-Fog machine. Zipkin, the adjuster for appellant, and Lillis, its policy agent, both advised Andrews that there was coverage under the policy for the loss. These facts and circumstances fall within those of the case of Meiser v. Aetna Casualty and Surety Co., 8 Wis.2d 233, 98 N.W.2d 919, where the facts showed that the insurer was uncertain as to application of the exclusion clause in that its agent first thought there was coverage and advised the insured to file a claim. Later, after discussing the matter with the insurer, the agent advised the insured that he had coverage; and a month later, after discussing the claim with a lawyer-investigator, the insurer notified the insured that the loss was excluded from coverage. It was held that these facts indicated that the insurer and its agent were not at any time sure of the construction that should be placed on the exclusion clause, and the same was entirely inconsistent with its contention that the phrase was unambiguous.

Of further strong significance, and as urged by respondents, is the fact that appellant placed a practical construction of coverage under the policy by paying a like property damage loss under a prior identical policy. That construction was against its interest, and will be given great weight in ascertaining the intention of the parties to the contract. State ex inf. McKittrick, Atty. Gen., ex rel. City of Springfield v. Springfield City Water Co., Banc, 345 Mo. 6, 131 S.W.2d 525, 532 [6, 7], “Moreover, in construing an ambiguous contract we have a right to consider the practical construction placed thereon by the acts and conduct of the contracting parties, and such construction is of the greatest weight in determining its true meaning.” That practical construction of coverage under the policy is and should be binding upon appellant. Leggett v. Missouri State Life Insurance Company, Mo., 342 S.W.2d 833, 852 [14-18]; Landau v. Laughren, Mo., 357 S.W.2d 74, 80 [2]; Norman v. Durham, Mo., 380 S.W.2d 296, 300 [3]; and Robson v. United Pacific Insurance Company, Mo., 391 S.W.2d 855, 861. See Haseltine v. Farmers’ Mut. Fire Ins. Co., Mo., 263 S.W. 810, 813 [4, 5], where an insured was held to his construction of a contract of insurance by paying himself one-fourth the cost of repairs on a previous loss as against his contention on appeal that the insurer was liable for the amount of the policy, not just three-fourths of the value of the property; and Fuller Bros. Toll Lumber & Box Co. v. Fidelity & Casualty Co. of New York, 94 Mo.App. 490, 68 S.W. 222, where the loss for a previous injury to an employee from an elevator was paid, it being claimed that injury from the elevator was excluded for a subsequent injury to the employee. It was said, 68 S.W. 223, “We are thus furnished with the indubitable evidence of the meaning the defendant assigned to the policy. As said in St. Louis Gaslight Co. v. City of St. Louis, 46 Mo. 121, Tn a case of that kind, whose interpretation should prevail ? If the court gives one differing from that understood by the parties, it, in effect, makes a new contract, — the very thing most to be avoided. If it leaves the parties to be governed by their understanding of their own language, it, in effect, enforces the contract actually made. That they should be so permitted to construe their own agreement accords with every principle of reason and justice.’ ” For further application of the rule of practical construction of a contract, see New Amsterdam Casualty Co. v. Mesker, 128 Mo.App. 183, 106 S.W. 561, 567, and Tomnitz v. Employers’ Liability Assur. Corporation, 343 Mo. 321, 121 S.W.2d 745, 751. The existence of the foregoing facts and circumstances showing that appellant practically construed the exclusion clause as not applicable to Andrews’ operation distinguishes this case from International Derrick & Equipment Company v. Buxbaum (C.A. 3rd Cir.), 240 F.2d 536; Maryland Casualty Company v. Holmsgaard, 10 Ill.App.2d 1, 133 N.E.2d 910; and those cases attempting to construe exclusion clauses such as this as collected in the annotation, 62 A.L.R.2d 1242. The observation is made, however, at page 1244 of that annotation: “Generally speaking, no rule of general application can be deduced from the cases, aside from the rather obvious statement that the general principle that insurance policies, having been prepared by the insurer, must be construed most strongly against it and in favor of the insured, fully applies to the kind of exclusion clause discussed here.”

If doubt existed on appellant’s part at the time of issuance of the first policy to Andrews, or if doubt existed at the time it renewed the first policy (knowing the nature of Andrews’ exterminating business operation, and having paid a s:m-ilar property damage loss), it would have been a simple matter for it to have specifically and with clarity excluded residential or other buildings where Andrews was performing its services from coverage. “Exclusion clauses are strictly construed against the insurer, especially if they are of uncertain import. An insurer may, of course, cut off liability under its policy with’ a clear language, but it cannot do so with that dulled by ambiguity. As with the provisions of the policy as a whole, so also with the exceptions to the liability of the insured, the language must be construed so as to give the insured the protection which he reasonably had a right to expect; and to that end any doubts, ambiguities and uncertainties arising out of the language used in the policy must be resolved in his favor.” Boswell v. Travelers Indemnity Co., 38 N.J.Super. 599, 120 A.2d 250, 253, 254. Accord: Rieger v. London Guarantee & Accident Co. of London, England, 202 Mo.App. 184, 215 S.W. 920, 927 [3]; Cloughly v. Equity Mut. Ins. Co., Mo., 243 S.W.2d 961, 964 [2], and cases cited.

Appellant contends that it has no liability to respondents because the policy contains a second exclusion from coverage: “Excluding the Use of Gas of any Kind.” That phrase appears upon an attached sheet of paper entitled “General Liability Schedule.” Under “(E) Contractual” appears the typed-in wording, Exterminators — Including Termite Control — Including Completed Operations — Excluding the Use of Gas of any Kind.” Following that appears a code number and certain figures for premium bases, rates and advance premium. Without doubt, the information contained on this sheet refers to rating classifications. It is further stated on this sheet in print, “The rating classifications stated herein, except as specifically provided elsewhere in this policy, do not modify any of the other provisions of this policy.” The use of gas as an exclusion is not specifically mentioned anywhere else in the policy. The plain words of the rating classification sheet show that it is not applicable to modify the insuring agreement. Besides, appellant did not initially deny coverage because of any claimed exclusion in the use of gas. That claim was first made when at the trial appellant amended its petition by leave of court to include the general allegation that there was no coverage under “other exclusions” in the policy additionally to that of Exclusion J. Appellant first denied coverage on the sole basis that there was no coverage because the property was in the care, custody and control of the insured under Exclusion J. It may not therefore assert a later different ground for denial of liability. State Farm Mut. Auto. Ins. Co. v. Central Sur. & I. Corp., Mo.App., 405 S.W.2d 530, 532 [1,2], and cases cited.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM: The foregoing opinion by PRITCHARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: ELGIN T. FULLER, Special Judge.

license: Public Domain

text:
    Earven GIBSON, Appellant, v. James W. SMITH and Annie Mae Smith, Respondents.
    No. 52667.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1968.

      Thomas M. Gioia, St. Louis, for appellant.
    Thompson, Walther & Shewmaker, Lewis M. Blanton, St. Louis, for respondents.
   ELGIN T. FULLER, Special Judge.

Earven Gibson, appellant and plaintiff below, brings this action in equity to set aside a general warranty deed executed by Walter Leon Smith (now deceased) to respondents, James W. Smith and Annie Mae Smith, his wife. The trial court found for the defendants. This suit to have the deed set aside involves title to realty in a constitutional sense so as to confer exclusive jurisdiction on this court.

This action in equity is to he reviewed de novo on the record and we must weigh the evidence, make our own findings of fact, draw our own conclusions of law and enter or direct the entry of the judgment so indicated. In this character of appeal we are triers of the facts as well as of the law.

The facts need more attention than the law. No new pronouncements of the law are required, for the law controlling the fact issues of this case have been declared by this court on many occasions. The witnesses were not restrained or limited by any consideration of our Dead Man’s Statute or in any way handicapped by the rules pertaining to hearsay evidence. All witnesses were given a free rein.

The plaintiff is a half-brother of the grantor, Waiter Smith. He was also the residuary legatee and devisee of Walter Smith’s will, which was executed August 2, 1963. Walter died December 24, 1963. But on the 28th day of June, 1963, Walter conveyed by warranty deed the only real estate he owned to defendants James W. Smith and Annie Mae Smith. The real estate was the west 30 feet of Lot 3 and the east 10 feet of Lot 4 in Block 3831 of the City of St. Louis, upon which was located his dwelling known and numbered as 5928 Plymouth Avenue. The warranty deed was recorded August 8, 1963.

Plaintiff’s petition alleged that on or about June 28, 1963, defendants, for the purpose of defrauding Walter Leon Smith out of his “just rights”, did persuade, unduly influence and induce him to convey the real property for a consideration of $10.00; that the transaction and conveyance were a scheme to obtain title without consideration and to defraud plaintiff; that said deed was without consideration and therefore void; that shortly before his death Walter Smith believed himself to be the owner of said real estate and expressed his desire and intention that plaintiff should, at Walter’s death, inherit the real estate from him. Plaintiff asked that the warranty deed conveying the property to defendants be set aside and that the court declare title in the plaintiff.

These charges call for a rather careful review of the evidence. Walter Smith and his elderly mother lived in the dwelling at 5928 Plymouth Avenue, St. Louis, Missouri. He had purchased the home in 1955 for $11,750.00. In 1932 defendant, James W. Smith, came from his home in Clarks-dale, Mississippi, to live with his cousin, Walter Smith. After living with Walter in St. Louis for four years he then moved to Chicago, Illinois, where he is now self-employed in the cleaning business. James returned on frequent visits to St. Louis and stayed at the home of Walter. James’ mother, Edna Smith, also resided in Chicago and has been in Walter’s home many times through the years. She and Essie Frazier, a relative of James, spent weekends at Walter’s home.

Walter’s troubles really began at the time he suffered a paralytic stroke about August 1960. James’ mother, Edna Smith, and Essie Frazier, a cousin of Edna Smith, came to Walter’s home and, when not taking care of Walter’s mother, visited Walter in the hospital. On that occasion they remained at Walter’s home about a month. James came a little later and at that time Walter was walking with the aid of a cane, but had hopes of returning to work, and in fact did return to his employment with Shell Oil Company. After a few days James returned to Chicago.

In 1962, probably in July, Walter’s mother had a paralytic stroke and two days later Walter had his second stroke. Willie B. Smith, a first cousin of Walter who was a resident of St. Louis, and a brother of Edna Smith, had Walter and his mother taken to a hospital. Willie did the best he could, during their illness, to keep Walter’s utilities and small bills paid. Edna Smith, Essie Frazier and James came from Chicago to be with Walter and Walter’s mother. They visited the two at the hospital. Walter was worried about the monthly home payments due on the note which was secured by a deed of trust. Walter asked James about James’ financial condition in the event Walter would need help or ran into any financial trouble and if James would make sure that Walter would not lose his house. Walter wanted to be sure that he did not miss any payment on his note. James told Walter that he was sure he would be able to make the home payments and that he would not fail to make the monthly payments and that he, James, would pay the note if it became necessary. At this time Walter said nothing about deeding the property to James. James then returned to Chicago. His mother and Essie Frazier remained to care for Walter and his mother. Edna, Essie Frazier and defendant, Annie Mae Smith, took care of Walter and his mother much of the t;me until Walter’s death. When his mother and his cousin, Essie, were taking care of Walter, James sent money to them to help pay bills and expenses of the home. On one occasion James sent one hundred dollars to Willie Smith to pay either a delinquent income tax of Walter’s or the monthly payment on the home. When Walter’s mother again became ill, James came to St. Louis. At that time Walter was receiving $105.00 Social Security and felt that that would pay the ordinary living expenses, but he was worried again about the $115.00 monthly payment due on the purchase price of his home. Walter told James, “I don’t know if I will be able to go back to work again, and if you have to pay hundreds of dollars for me, I don’t know if I will ever be able to pay you. In case that would happen I would just have to deed the house over to you * * * the house would be yours to compensate y0U * * James said, “That is okay.” James then went back to his home in Chicago.

Defendant Annie Mae Smith came to Walter’s home in December, 1962 and took care of Walter for about three weeks. Edna was there from March to July, 1963. Essie and Edna were there looking after Walter and his mother from Easter Sunday until sometime in July, 1963. James continued to send money to help pay the expenses. James testified that he paid between $1,000 and $1,500 on behalf of Walter; that he had agreed to pay any bills that Walter could not pay out of Walter’s and his mother’s monthly checks, but that the main thing was payment on the “house note”. On one occasion he paid Millie Johnson $60.00 for three weeks’ work in looking after Walter. Walter had employed her at twenty dollars a week, but had failed to pay her for a three-week period.

Several weeks before Walter conveyed the property to James and his wife, James’ mother, who was then looking after Walter, telephoned James at Chicago and told him that Walter wanted to see James and to talk to him about “deeding the house to James”. James had a vacation due him in a few weeks and wanted to wait until that time to come to St. Louis. After one or two other similar calls from his mother, James talked to a lawyer in Chicago and asked if he knew a lawyer in St. Louis who could take care of that kind of business. Attorney Robert E. Wilson, Jr., of St. Louis, was chosen. Mr. Wilson went to Walter’s home and told him the purpose of his call. Walter told Wilson that he had a nephew in Chicago whom he had practically raised and had brought the young man from Mississippi to St. Louis, and that he wanted him to have his property; that he wanted to prepare for the balance of his life and to see that his, Walter’s, mother was taken care of. Attorney Wilson then prepared a Warranty Deed. On one of his trips to Walter'-s home he had seen Araminta Smith, the Assistant Director of the Social Service Department at Malcolm Bliss Hospital. She had a Masters Degree from Washington University in social work. She is not related to any of the parties or witnesses in this case. Her duties necessitated her being in Walter Smith’s home from twice a week to sometimes every day of the week. Walter had told Miss Araminta Smith of his plan to deed the property to James. Ara-minta testified, “At that time he told me definitely that he knew this was a good plan, and that James Smith would really take,, care of him because he was a good man and that he owned a cleaning establishment in Chicago and he had a fine family, and he was impressing me that this was a good plan”. Walter told Araminta the date that the attorney was going to return to Walter’s house. The attorney also asked Araminta if she would meet him at Walter’s home. Wilson read the deed to Walter and asked him if that was the way he wanted it. Walter said that it was, and signed the deed. Mr. Wilson had also prepared a second writing entitled “Contract for Support in Consideration of Conveyance. with Reverter Provisions”. Wilson read and explained this document to Walter. Mr. Wilson, Araminta Smith and Mary Witherspoon, a neighbor and who was sometimes referred to at the trial as the “stocky lady who lived on a side street”, attest to an unusual occurrence immediately following the signing of the deed by Walter. Mrs. Witherspoon herself relates the incident about as well as the others who were present:

“Well, the morning they came in with the papers they asked me would I be excused, that they — they said they got a little business to transact and they said, ‘Would you go out?’ I said, ‘No, I am not going out’. I looked around at this lady that was there and I said, ‘Is that clear ?’ I didn’t say nothing else, and I went over by the bed where Walter was — I was over there in back of the bed, and I come around to the front of the bed, and I stood there when he held out to Walter another paper * * * and I jumped up, and I said, ‘Don’t you sign another paper 1’ * * * He had signed the first one, but I said, ‘If you sign another one I am going to take it and tear it up.’ * * * Miss Smith said, ‘You don’t have anything to say about it’. I said, T got a lot to do with it; you are trying to get these folks’ home, so they don’t have any home’ ”.

Araminta puts it a little more mildly:

“As I recall, while we were in the room, a lady came prancing into the house, and she started screaming and hollering. As I recall, she said, ‘Don’t sign it! Don’t sign it!’ And then she started to make derogatory remarks about the attorney, and said that he was trying to take Walter Smith’s property away from him”.

Walter did not sign the “Contract” which the attorney had prepared and Walter stated that he did not want to sign that paper until James Smith had signed it. Defendants, James and his wife, Annie Mae, were in Chicago at the time Walter signed the deed, which was acknowledged by Attorney Wilson, who was also a Notary Public. James had never seen the “Contract” and knew nothing about it. Wilson had never talked with James about the separate contract which Wilson had prepared, and in fact James had never met Attorney Wilson. Wilson testified that the idea of the separate contract was his own.

Since the basis of the charge of fraud largely centers around the execution and recording of the Warranty Deed without Walter Smith having first signed this Agreement, more should be said about the Contract. In it Walter Smith was designated First Party and James W. and Annie Mae Smith, his wife, were designated Second Parties. First, it contained a preamble clause reading, “Whereas, first party has, upon the execution of this instrument, executed and delivered to second parties a deed conveying to them the following described real estate(the property here involved). Generally the contract provided that defendants would provide a home for First Party and his mother, furnish necessary food, clothing, lodging, laundry, medical and nursing care and expenses of their last illness, funeral and burial. It further provided that Second Parties were entitled to possession of said real estate on the date of execution of the Agreement and Warranty Deed. Second Parties were to pay all taxes on and assessments against the real estate and keep it insured and repaired. It contained a provision against selling or mortgaging during Walter’s lifetime, without his written consent. In case of default on the part of Second Parties the real estate would revert to First Party. First Party agreed that he and his mother would turn over to Second Parties all monies received by them from Social Security and Old Age Assistance, which were to be used solely for the support and maintenance of First Party and his mother.

Back to the scene in Walter’s home — ■ after he told the attorney that he did not want to sign the Agreement until James had signed it. Wilson then told Walter that Wilson was going to Chicago over the 4th of July and would take the Contract to James and bring it back to Walter upon his return. Wilson saw James in Chicago and showed him the deed and the contract. He explained the purpose of the contract. James testified that the written “Contract for Support in Consideration of Conveyance with Reverter” was not the agreement that he and Walter had made, but that it seemed to him that “it was for the protection of Walter and Aunt Jane”, and having no objections, he and his wife signed it.

Upon his return to St. Louis about the second week in July Attorney Wilson took the contract to Walter. Walter told Wilson that he was not going to sign the agreement at that time, and that he would let Wilson know when he was ready to sign it. Sometime during the latter part of July Walter told Wilson that he was not going to sign the agreement but that Wilson should go ahead and have the deed recorded.

About this time James came from Chicago to see Walter. He wanted to talk to Walter about his signing the agreement. He called Attorney Wilson and they met at Walter’s home. Araminta Smith, the social worker, was also there. Both Wilson and the social worker explained to Walter that the “Contract for Support in Consideration of Conveyance with Reverter” was for his benefit. But Walter did not sign the contract. It was even suggested by the attorney that if Walter did not want to sign the agreement perhaps Walter should have the attorney prepare a deed for execution by defendants, James W. and Annie Mae Smith, conveying the property back to Walter. Walter, however, did not request that to be done. James testified that Walter said that somebody had told him at that time (presumably at the time he executed the Warranty Deed) not to sign any more papers — that they said somebody was trying to take the house from him, and not to sign any more papers at all.

Sometime in July, 1963, a misunderstanding arose, usually referred to in the evidence as a “confusion”, over exactly who was in charge of Walter’s household. This confusion was never explained and could have occurred between Walter and Edna Smith or between Edna and either Mary Alice Cobb or Mrs. Cobb’s mother, Mary Wither-spoon. Edna Smith then left to return to her home in Chicago. The next morning Mrs. Cobb asked Walter if he had other relatives and on being told that Walter had a half-brother in Lexington, Mississippi, Mrs. Cobb contacted the half-brother, Earven Gibson, the plaintiff. Walter had told the social worker that he hadn’t seen Gibson for ten years. Gibson enters the scene July 18, 1963. He took charge at once. Willie Smith, who had had the responsibility of paying the monthly payments on Walter’s home, soon learned that he no longer was to attend to that. Mrs. Cobb was designated as the one to collect the rent from an apartment on the first floor of Walter’s house and to send it to plaintiff Gibson upon his return to Mississippi, and, in fact, was placed in charge of Walter’s household. Millie Johnson, who worked in Walter’s home and who was paid by Walter “sometimes when he had it” and by James Smith at other times, was paid by Gibson from Walter’s income after Gibson’s arrival. Fifteen days after plaintiff came to St. Louis, Walter’s Last Will and Testament was executed which, after providing for payment of his just debts and funeral expenses, devised and bequeathed all of his estate, real, personal and mixed, to plaintiff, Earven Gibson. Soon after the execution of the will plaintiff returned to his home. Plaintiff returned to Walter’s home once a month until Walter’s death December 24, 1963.

About one month after the execution of the deed, Walter told the social worker that he had changed his mind, that he wasn’t going to go through with the original plan with James Smith, and that upon the suggestion of a neighbor he was going to contact his half-brother in Mississippi. The social worker was “surprised and shocked”. Walter told her that the relatives, James Smith and Edna Smith “might not do the right thing by him, that they would probably— he said that he knew that they would take his money and not give anything in return, and that if he went ahead with it why, they probably wouldn’t follow through with it”.

When plaintiff Gibson came to St. Louis, Araminta Smith told him that she would like to talk to him about future care for Walter. Gibson said that he would be outside Walter’s house walking around. When the social worker went outside she was unable to find Gibson. When she got back to her office she made an appointment to meet him and to discuss the care Walter needed, but Mr. Gibson did not appear for that appointment.

After Walter’s death James W. Smith sent the monthly payment on the house to William J. Kempf, the holder of the note and deed of trust, but Mr. Kempf refused the payment “because I had received payment from Mr. Gibson”. Mr. Gibson had made the house-payments since he took charge in July, 1963. The Last Will and Testament of Walter Leon Smith was admitted to probate March 6, 1964.

Under these circumstances and facts plaintiff charges defendants James W. Smith and his wife with fraud. Specifically he claims: (1) There was no definite oral agreement to convey; (2) The oral contract itself was unfair and unconscionable; (3) Failure of performance of the oral contract; (4) The oral contract was not based on adequate consideration; (5) Undue influence and (6) The failure of the defendants’ attorney to return the deed to the deceased after the deceased refused to sign the contract, was a fraud.

In considering the issues here presented we should bear in mind that the cancellation of a deed calls for the exercise of the most extraordinary power of a court of equity, which ought not be exercised except in clear cases upon proof which is clear, cogent and convincing.

When fraud is alleged “the burden of proof rests upon him who asserts it to make it manifest”. If a deed is sought to be cancelled on the ground of fraud, the evidence must go beyond a mere preponderance of the testimony and remove all reasonable doubt. Weissenfels v. Cable, 208 Mo. 515, 106 S.W. 1028; Sebree v. Rosen, Mo., 349 S.W.2d 865. Or, to express it another way, the proof to justify such action on the part of the court must be so clear, convincing and complete as to exclude all reasonable doubt in the mind of the chancellor. Fraud imputes venality and corruption to the person charged with it, and both reason and law require clear and convincing proof of it. The difficulty of proving fraud does not dispense with the necessity of making the required proof. Nor is fraud ever presumed. Hardwicke v. Hamilton, 121 Mo. 465, 26 S.W. 342; Schnuck v. Kriegshauser, Mo., 371 S.W.2d 242.

The oral agreement between Walter and James entered into many months prior to the execution of the deed by which James Smith promised to pay the bills Walter could not pay — and particularly the promise that James would, if Walter could not pay them, assume the monthly payments on the deed of trust encumbering Walter’s home, and the promise by Walter that “I would just have to deed the house over to you * * * the house would be yours to compensate you”, was the agreement which led to the signing of the deed by Walter. Here was a man who had suffered a second paralytic stroke and he was disturbed about his mother’s and his own welfare. He did not want to lose his home. And it was a natural thing for him to look to James Smith. The idea of conveying the property to James and his wife was Walter’s. There is no evidence of fraud or undue influence on the part of the grantees. The evidence reveals nothing unfair or unconscionable about the oral agreement.

When it became apparent that Walter and his mother needed help after both had suffered strokes, it was James W. Smith, his mother, Essie Frazier, and his wife who came from Chicago to care for Walter and his mother. James sent money to help pay the expenses of managing the household. He paid $60.00 to Millie Johnson for work she had performed in the home. He sent $100.00 to pay either the taxes or a monthly payment on the home. He testified that he paid between $1,000 and $1,500 on behalf of Walter. About the time of Walter’s death he sent the monthly payment on the home which was soon to be due. All of such acts constitute performance of the contract by James W. Smith.

The assurance given to Walter by James that James would pay such of Walter’s household expenses or bills that Walter could not pay, and his promise to assume the payments on the home, if that became necessary, coupled with the subsequent performance by James, were adequate consideration for the conveyance. His performance was unequivocally and solely referable to the oral agreement. Two quotations from Radford v. Radford, Mo., 388 S.W.2d 33, 39, are illustrative: * * Failure of consideration, like lack of consideration, is not generally considered a sufficient ground for equitable cancellation of an instrument in the absence of some additional circumstance independently justifying this relief, such as fraud, duress, or mistake. * * * ’ ” And again, “Even if the consideration for a deed is inadequate, the operative effect of the deed cannot be defeated in the absence of fraud, mistake, undue influence, or some other recognized equitable ground. Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461, 467 [11].” The Rad-ford case is very similar to this case. There we held that the promise of the grantee to support the grantor wholly or in part was sufficient consideration for a deed.

Appellant claims that after the grantor had executed the deed and had refused to sign the “Contract for Support in Consideration of Conveyance with Reverter Provisions” the grantees, through their attorney, were guilty of fraud in not “returning the deed” to the deceased. In such contention the appellant gives more weight to the written instrument than it deserves. Because first, the terms of said instrument were never agreed upon by the grantor and grantees; nor was it executed by the parties thereto. It was never a contract. That instrument was Attorney Wilson’s idea. And next, the conveyance was made under the oral agreement between Walter and James. The idea of conveying originated with the grantor himself. At the time the deed was executed and delivered, James Smith had never seen the written “Contract for Support”, had never discussed its contents with Attorney Wilson, and, in fact, had never met the attorney. James Smith testified quite positively that the Contract for Support was not the agreement which he and the grantor had made before the deed was executed. The fact that the attorney prepared an additional “Contract” did not change the oral agreement. It was by virtue of the earlier oral agreement, not Attorney Wilson’s written “contract”, that the property was conveyed to the grantees. Such oral contract was completed by the execution and delivery of the deed. Appellant would have us ignore Attorney Wilson’s testimony that Walter Smith told him to record the deed for the reason that such statement was self-serving. For this to be true, Attorney Wilson would have had to testify to some statement which he, Wilson, had made out of court in his own interest. As was said in Bernhardt v. Boeuf & Berger Mutual Insurance Co., 319 S.W.2d 672, 674: “A self-serving declaration within the rule excluding same is one made by a party in his own interest at some place and time out of court, and does not include testimony which he gives as a witness at the trial”. Wilson was testifying to a statement made by the grantor. No objection was made to the question or answer. Furthermore, Wilson was plaintiff’s witness, and plaintiff should be bound by Wilson’s uncontradicted testimony. Actually, there was an offer to reconvey the property after Walter refused to sign the written contract. But in any event, under the circumstances, we can not find fraud on the part of the grantees or their attorney in not reconveying the property after the grantor refused to sign the written “contract”. The execution of the written contract was not a condition precedent to the delivery and recordation of the deed. While there is no claim of mental incapacity as to Walter Smith, the welfare worker was careful to be sure in her mind that the grantor knew what he was doing and that he wanted to convey to the grantees. She talked with him alone earlier in the day and learned that Walter thought the plan a good one, and when asked at the trial if Walter knew what he was doing when he signed the deed, replied, “Definitely, yes”. A client may be chargeable with a fraud perpetrated by his attorney within the scope of his employment, just as the client may be charged with the neglect of his attorney. 7 C.J.S. Attorney and Client § 67, pp. 850-851, and § 68, pp. 852-853; Commonwealth v. Smith, 242 Ky. 365, 46 S.W.2d 474, 478. But the evidence fails to prove fraud on the part of either the attorney or the grantees.

After a careful review of the record we are convinced that the plaintiff-appellant failed to meet the standard of evidence required. We have reached the inescapable conclusion that the finding and decree of the chancellor was for the right party, and our study of the transcript has caused us to independently reach the same conclusion. However, at the trial of this cause in September, 1966, two years nine months after grantor’s death, plaintiff Gibson testified that he was renting the property for $140.00 per month and that plaintiff was making the payments on the note secured by a deed of trust. We affirm the judgment and decree that the respondents, James W. Smith and Annie Mae Smith, are the true and sole owners of the property and are entitled to the rents and profits therefrom, from the date of death of Walter L. Smith, December 24, 1963, less any payments for taxes and payments on the encumbrance made by plaintiff Gibson. It appears, therefore, that an accounting is necessary to equitably account for both the rents received and the payments made on the encumbrance since December 24, 1963, by appellant, Earven Gibson.

Accordingly, the judgment is affirmed and the cause remanded for further proceedings not inconsistent with this opinion.

All of the Judges concur.

      . Art. V, § 3, Constitution of Missouri, V.A.M.S.

      . Cleary v. Cleary, Mo., 273 S.W.2d 340, 346; Watkins v. Watkins, Mo., 397 S.W. 2d 603; Vineyard v. Vineyard, Mo., 409 S.W.2d 712; Herrold v. Hart, Mo., 290 S.W.2d 49.

      . Lastofka et al. v. Lastofka, 339 Mo. 770, 99 S.W.2d 46, 54; Cruwell v. Vauglm, Mo., 353 S.W.2d 616, 624 [1-4]; Edinger v. Kratzer, Mo., 175 S.W.2d 807, 813; Dillard v. Dillard, Mo., 266 S.W.2d 561, 563 [2-4]; Herrold v. Hart, Mo., 290 S.W.2d 49, 55 [2, 11]; Hamilton v. Steininger, 350 Mo. 698, 168 S.W.2d 59, 68; Allan v. Allan, Mo., 364 S.W.2d 578, 582 [8, 9]; Schneider v. Johnson, 357 Mo. 245, 207 S.W.2d 461, 466 [2, 3]; Wilkie v. Elmore, Mo., 395 S.W.2d 168, 172; Radford v. Radford, Mo., 388 S.W.2d 33, 38; and Reinheimer v. Rhedans, Mo., 327 S.W.2d 823.

      . Lowther v. Hays, Mo., 225 S.W.2d 708, 713.

      . Stubblefield v. Husband, 341 Mo. 38, 106 S.W.2d 419, 423; Dougherty v. Dougherty, 204 Mo. 228, 102 S.W. 1099; Bross v. Rogers, Mo., 187 S.W. 38.


author: STOCKARD, Commissioner.

text:
    Yvonne Sue DIETRICH, Appellant, v. The PULITZER PUBLISHING COMPANY, a corporation, Respondent.
    No. 52531.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1968.
    Bernard Steinger, Clayton, for plaintiff-appellant.

      Evans & Hoemeke, Robert D. Evans, Robert B. Hoemeke, St. Louis, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from a judgment in favor of defendant in her action for libel in which she sought actual and punitive damages in an amount far in excess of our minimum jurisdictional amount.

Plaintiff alleged she was libeled by two articles on March 23 and March 25, 1966, in the St. Louis Post-Dispatch, a newspaper of general circulation, said articles in their entirety being as follows:

“$12,000 IN COINS SEIZED IN RAID, MAN ARRESTED
“Coin collections valued at $12,000 were seized yesterday by police in a raid on the residence of Fred J. Dietrich, a former convict of the 4400 block of Ravenwood avenue, Pine Lawn.
“Dietrich was arrested when he fled through the back door of his home after officers knocked on the front door and informed him they had an arrest order for him. Nine police officers from Pine Lawn, Clayton and St. Louis had surrounded the four-room, one-story frame residence.
“Dietrich, released from the state penitentiary about a year ago after serving a two-year term for burglary, was booked suspected of burglary and stealing and released on $2500 appearance bond returnable next Wednesday in the court of Magistrate Harry Stussie of Clayton.
“Detective James Smith of the Clayton police reported that officers found more than 1500 coins in drawers and in heating ducts in the house. Many of the coins were old and others were foreign, he said. The seized coins included 100 silver dollars.
“Coin collectors who have been victims of burglaries will be asked to inspect the money, Smith said. The coins were taken to the Pine Lawn police station for sorting. Two coin collectors inspected them at the request of Police and placed the $12,000 valuation on them. They said the face value of the co'ins was $2,000.
“Police went to Dietrich’s home after Clayton police had indications that he might have some stolen coins and city police received what they described as an anonymous tip to the same effect.
“Dietrich is well-known to police and has a long arrest record in addition to his 1963 burglary conviction.
“Five officers, led by Capt. William Karabas of the Pine Lawn police, went to the front door. The other four posted themselves around the house. When Dietrich emerged, Karabas informed him that he had an arrest order for him and his wife, Yvonne Sue.
“Dietrich said he had to get dressed and slammed the door. He ran out the back door where Detectives Jerry Weisbrod and Peter O’Connell were waiting.
“After some discussion with Mrs. Dietrich, officers persuaded her to sign a consent-to-search form. She was not arrested. The Dietrichs’ 4-year-old daughter was there at the time.”
“RECOVERED COINS ARE STOLEN FROM TOWN’S CITY HALL
“Part of a stolen coin collection that had been recovered Tuesday from the home of a former convict was stolen last night from the office of the Pine Lawn city clerk, police discovered today.
“Burglars forced entrance to City Hall, 6250 Forest avenue, borke [sic] into the clerk’s office and punched open a safe. The coins, of undetermined number and value, were taken. Pine Lawn police headquarters is in the basement of the building, but no officers are on duty after 11 p. m., it was reported.
“Police recovered coin collections valued at $12,000 in a raid on the home of Fred Dietrich, convicted burglar, in the 4400 block of Ravenwood avenue, Pine Lawn. Dietrich was arrested and released on $2500 bond, returnable in magistrate court next week. More than 1500 coins, including 100 silver dollars, were found in drawers and heating ducts in the house.
“Capt. William Karabas told a reporter today that some coins were placed in a bank yesterday. An inventory is being made to identify those removed from the same, Karabas said.”

Plaintiff alleged that she operated an ice cream and food business known as Tastee-Freeze in St. Louis County, and that defendant’s newspaper was circulated throughout the county and the City of St. Louis. She then alleged as follows:

“5. That said articles were circulated among and read by the residents of the City and County of St. Louis and that said articles referred to plaintiff and were intended to refer to plaintiff, and were so interpreted by the residents of the City and County aforesaid, as it was well known by said residents that plaintiff had a coin collection and at said time was selling, trading, exchanging, purchasing and collecting coins and paper money, and further, was doing business in the said area.
“6. That the publications aforesaid by the defendant were false, wanton, wilful, malicious, illegal, and recklessly made with the intent to defame the reputation and business of this plaintiff and to injure this plaintiff’s reputation, business and business reputation in that plaintiff was thereby deprived of public confidence and social intercourse.
“7. That as a direct result of said publications, sales and distribution of same, plaintiff’s reputation and business has diminished and the good will thereof destroyed; that plaintiff was greatly em-barrased [sic] and humiliated and she was injured in name and reputation and deprived of public confidence and social intercourse, all to plaintiff’s damage in the amount of $100,000.00; that by reason of the fact said publications were false, wanton, wilful, malicious, illegal and recklessly made, plaintiff is entitled to punitive damages in the amount of $1,000,000.00.”

Defendant filed as part of its answer, a motion to dismiss plaintiff’s petition for failure to state a claim upon which relief may be granted. This motion was not ruled by the trial court. In its answer defendant admitted the publication of the two articles, it alleged the truth of the statements therein, and denied generally the other allegations. Defendant also filed a motion for summary judgment, and attached thereto the affidavits of four police officers, the affidavits of the two reporters who wrote the news stories, and the affidavit of the assistant city editor who authorized their publication. Attached to the affidavits of the police officers are various police investigation reports. These affidavits and reports are lengthy. We shall summarize the factual information contained therein.

The St. Louis police received an anonymous telephone call stating that Fred J. Dietrich and his wife, Yvonne Sue, had knowledge of or were responsible for the burglary of the Ebling home in Clayton, Missouri. Sergeant Spicer of the St. Louis police told Captain Karabas of the Pin'e Lawn police that the information received was that Fred Dietrich “had a large quantity of coins and other articles taken in various burglaries throughout the city and county.” Police officers went to the front door of the Dietrich home and told Fred Dietrich that they had an arrest order for him and for his wife. Fred Dietrich attempted to leave by the rear door, but other police officers were waiting there for him and he was arrested. The police requested permission to search the house, but plaintiff refused. However, she later consented and signed a written “Consent to Search and Seize.” The police searched the house and found hidden or concealed in the heating ducts, behind the furnace and under furniture a quantity of coins, radios, jewelry, camera equipment, and other property. Some of the property, other than the coins, was subsequently identified by the owners as having been stolen from them. At the time of the seizure by the police, plaintiff said that some of the coins and property belonged to her,, but that she did not know where the rest had come from. The coins were taken to the police station, and later some of them were placed in the safe in the office of the city clerk. During the night of March 24, the safe was broken open and the coins were stolen. Mr. Donald Tapperson, a reporter for defendant, wrote the article published on March 23, I960, based on information received from the police. Mr. Peter Donhowe, also a reporter for defendant, was told by Captain Karabas that “part of a stolen coin collection that had been recovered from the home of Mr. Dietrich had been stolen from the safe.” Based upon this and other information received from the police Mr. Donhowe wrote the article which was published on March 25, 1966.

Plaintiff filed an affidavit which she stated was “in opposition to affidavits of defendant.” She there stated that when Captain Karabas “discovered some coins” she told him that “they were a part of her personal collection,” and that she “objected to the police taking her coins.” The remainder of the affidavit pertains to the conduct of the police in searching the house, and the circumstances under which she gave her consent for the search, facts which even if true have no bearing on the issue of whether the publication of the articles constituted a libel.

The facts stated in the affidavits and exhibits filed by defendant in support of its motion for summary judgment to which plaintiff filed no verified denial stand admitted for the purpose of the motion for summary judgment. Gruenewaelder v. Wintermann, Mo., 360 S.W.2d 678, 686; Grubb v. Leroy L. Wade & Son, Inc., Mo., 384 S.W.2d 528; E. O. Dorsch Electric Co. v. Plaza Construction Co., Mo., 413 S.W.2d 167. Summary judgment, as authorized by Civil Rule 74.04, V.A.M.R., is applicable to an action for libel. Spradlin’s Market, Inc. v. Springfield Newspapers, Inc., Mo., 398 S.W.2d 859; Fletcher v. Evening Star Newspaper Co., 72 U.S.App.D.C. 303, 114 F.2d 582, certiorari denied, 312 U.S. 694, 61 S.Ct. 732, 85 L.Ed. 1130. However, by Civil Rule 74.04(h), V.A.M.R., it is expressly admonished that in no case shall summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law, and the rule does not require or contemplate the granting of summary judgment where such judgment for any reason is not appropriate under the circumstances even though the facts be taken as in the moving party’s affidavits. Cure v. City of Jefferson, Mo., 380 S.W.2d 305, 310; E. O. Dorsch Electric Co. v. Plaza Construction Co., supra. We are of the opinion that summary judgment was not appropriate in this case because it was premature in that, for the reasons subsequently set out, plaintiff’s petition does not state a claim for libel.

In this state by reason of Civil Rule 55.22, V.A.M.R., in an action for libel it is not necessary to allege in the petition extrinsic facts to show the application to plaintiff of the alleged defamatory words out of which the claim arose. It is sufficient to allege generally that the words were published concerning plaintiff. This rule authorizes pleading generally what is sometimes called the “colloquium.” However, when the published words are not per se actionable, and plaintiff in this case admits that they are not and we agree, in order to state a claim for libel there must be pleaded in the petition what is known as the “innuendo,” which by reference to pleaded extrinsic facts constituting the “inducement” shows or demonstrates the defamatory sense of the published words. Sotham v. Drovers Telegram Co., 239 Mo. 606, 144 S.W. 428; Fensky v. Maryland Casualty Co., 264 Mo. 154, 174 S.W. 416, Ann.Cas. 1917D, 963; Furlong v. German-American Press Ass’n, Mo., 189 S.W. 385; Stowers v. Western Bentley Mercantile Co., Mo.App., 140 S.W.2d 714; Chambers v. National Battery Co., D.C., 34 F.Supp. 834; 53 C.J.S. Libel and Slander § 162; 33 Am. Jur. Libel and Slander §§ 239 and 241. See generally, Langworthy v. Pulitzer Publishing Company, Mo., 368 S.W.2d 385, pertaining to a publication not libelous per se when no extrinsic facts were pleaded demonstrating the defamatory sense of the words.

In paragraph 5 of the petition plaintiff alleged that the two publications referred to her, and in paragraph 6 she alleged by way of a conclusion that the “publications * * * were false, wanton, wilful, malicious, illegal, and recklessly made with intent to defame * * The fact that any or all of these characterizations may describe the published words does not necessarily result in them being a defamation within the meaning of Section 559.-410, RSMo 1959, V.A.M.S. Paragraph 7 of the petition pertains only to damages. Nowhere in the petition are there any allegations of extrinsic facts which show, or from which it reasonably could he found, that the published words constitute a defamation of plaintiff. Presumably, although this is speculation on our part, plaintiff contends that the two articles convey the message that she either stole the coin collection or that she knowingly was in possession of stolen property, but the articles do not state this, and plaintiff has alleged no extrinsic facts from which such a message reasonably could he found. In fact, plaintiff does not allege that the coin collection was her property or that it was not stolen, and we note that the uncontroverted facts in defendant’s affidavits, if taken as true, do not establish that the coin collection was in fact stolen or that it did not belong to plaintiff. If the above speculation as to plaintiff’s theory is not correct, we are indeed at a loss as to her theory. For these reasons the petition does not state a claim for libel.

Ordinarily when a first pleading is ruled to he insufficient in a trial court, the party is afforded a reasonable time to file an amended pleading if desired. See the general policy concerning amendments to pleadings in Civil Rule 55.53, V.A.M.R., and see also Burke v. City of St. Louis, Mo., 349 S.W.2d 930. We cannot now rule that plaintiff cannot state a claim for libel. If by amendment she is able to do so on our speculated theory, defendant’s affidavits as now worded would not establish that there is no material issue of fact.

Defendant filed in this court a motion to dismiss the appeal because plaintiff’s brief fails to comply with Civil Rule 83.05(c). The brief is inadequate, but not so totally lacking in conformity with the rule that the harsh action of dismissal should result.

For the above reasons the judgment is reversed and the cause remanded with directions to the trial court to dismiss plaintiff’s petition for failing to state a claim upon which relief may be granted, and to enter such orders as it deems appropriate pertaining to permission to file an amended petition.

It is so ordered.

BARRETT and PRITCHARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Judge.

text:
    Effie MEILVES, Respondent, v. M. E. MORRIS, Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Appellant.
    No. 52702.
    Supreme Court of Missouri, Division No. 2.
    Jan. 8, 1968.

      Harry J. Nichols, St. Louis, for respondent.
    Norman H. Anderson, Atty. Gen., Jefferson City, Irving L. Cooper, Special Asst. Atty. Gen., Clayton, for appellant.
   EAGER, Judge.

This is an appeal by the custodian of the “Second Injury Fund” from an award in a Workmen’s Compensation claim against that fund. The award was upheld by the Circuit Court. We have jurisdiction because a State Officer, as such, is a party. Grant v. Neal, Mo., 381 S.W.2d 838; Stewart v. Johnson, Mo., 398 S.W.2d 850. In essence, the applicable statute, § 287.220, RSMo 1959, V.A.M.S., provides that if an employee has a “permanent partial disability, whether from compensable injury or otherwise, * * * ” and thereafter receives a subsequent compensable injury resulting in additional permanent partial disability, the employer shall be liable only for that percentage of disability which would have resulted from the last injury, and the remainder shall be determined and paid out of the “Second Injury Fund.” That fund is maintained from a portion of the proceeds of a tax on all insurance carriers under § 287.710.

Counsel for the claimant complains that the Points in appellant’s brief are merely abstract; he has filed no motion to dismiss. From an examination of the Points and the argument of appellant the contentions are obvious, and the matter needs no further discussion. In view of the nature of the case and the contentions made, the Points appear to be sufficient in any event.

The claimant, Effie Meilves, 78 years of age at the time of her injury in July, 1963, and nearly 81 at the time of the hearing, was employed as a cleaning woman by the St. Louis Visiting Nurses’ Association. She cleaned the desks and chairs and the nurses’ room and, upon occasion, cleaned the Venetian blinds by washing them while standing on a ladder. For about two years prior to July, 1963, she had worked only one day a week at $8.60 per day; previously she had worked three days a week. The failure of counsel to show the reason for this change has been very material to our consideration. The claimant performed her work with complete satisfaction to the employer and without any complaints on her own part; she worked regularly from 8:00 a. m. to 4:15 p. m., with 30 minutes for lunch, and she was on her feet “quite a bit.” She had worked for the same employer for nearly twenty-five years.

On July 18, 1963, she slipped and fell in her place of employment. The employer and employee conceded in the original proceedings that the claimant sustained a fall on the date in question. We must more or less infer that fact as between the present parties. The claimant was not asked about the fall when she testified, and the evidence of one of her supervisors concerning the fall was excluded as hearsay. All the facts, however, including the evidence of hospital and medical treatment and the Workmen’s Compensation documents and findings, are sufficient for this purpose.

Claimant’s injuries from the fall consisted principally of a fracture of the right shoulder and fractures of two bones of her right wrist. The result was a limitation of motion and of rotation in the right shoulder, with stiffness and periodic pain, a 5°-10° “flexion deformity” of the right elbow, a radial deformity of the right hand at the wrist with limited motion of the wrist and recurrent pain, and an inability to close the right hand so as to “make a fist,” because of stiffness of the fingers. The claimant never went back to work. While the appellant denies the existence of total and permanent disability since the fall, there was ample evidence to sustain the finding so made. Following the injury, the claimant settled with the insurer of her employer for that injury, and thereafter filed the present claim against the Second Injury Fund. The settlement, approved by the Commission, was based upon a permanent disability of 20% of the right arm at the shoulder and wrist, and 15% at the elbow. The total payment made was $1,671, in addition to the medical aid.

Claimant was examined by two physicians prior to the hearing on the present claim,— one of her own choice and one chosen by counsel for the fund. X-rays were taken. These examinations were made, respectively, on April 26, 1965, and on March 2, 1965. Sundry ailments and degenerative conditions were found, obviously of long standing, and the inference is clear that they existed prior to July 18, 1963. They were, in substance, as follows: her heart was enlarged, her blood pressure was high, being 200/120 on one examination and 225/140 on the other, she had hypertension, generalized arteriosclerosis, a moderate kyphosis of the dorsal spine and a right dorsal and left lumbar scoliosis. Her back motions were limited; the x-rays showed an anterior wedging of several middorsal vertebrae, secondary to “senile osteoporosis,” and an atrophy of the musculature of the shoulders and arms. The wedging of the vertebrae had caused the claimant to have a “humpback” appearance; she also had some edema in her left lower leg and ankle, and poor circulation in her feet. One physician testified that she was totally and permanently disabled and no longer employable; the other thought that she could still do such work as she had been doing for the last five years. The wedging of the vertebrae, supposedly resulting from “wear and tear,” was of the same general type as are traumatic compression fractures in that region. One doctor stated that her condition prior to the injury constituted an “unratable” disability. The claimant testified that she could not do the work of her prior employment after the injury because she could not wring out the rags.

The appellant disclaims liability primarily upon the theory that any disability existing prior to the accident must have been industrially disabling before it may be combined with the results of the later accident (for the present purposes), whereas this claimant was not so disabled. Counsel for the claimant concedes the requirement of industrial disability, but insists not only that claimant was totally and permanently disabled after the accident, but that she was permanently and partially disabled, industrially, before that time by reason of her various bodily infirmities and diseases.

The findings of the referee (affirmed by the Commission and the Circuit Court) were that claimant had sustained an accident out of and in the course of her employment and that this injury, in and of itself, resulted in a 50% permanent partial disability of the right arm at the shoulder (116 weeks at $16 per week), which disability, together “with her previous disabilities due to the infirmities of advancing years, has resulted in permanent total disability.” Since claimant had already settled her claim against the employer, the referee assessed the remainder of the 300 weeks’ compensation (184 weeks at $16 per week) and the pension of $18 per week thereafter for life, against the Second Injury Fund. It is from this award that the Treasurer appeals.

It is hardly necessary to repeat the principle so often laid down in the review of such awards, namely, that the Court should determine whether the award is supported by competent and substantial evidence on the whole record,, and whether the Commission could have reasonably made its findings and reached its results on the evidence; and that, if such be not true, or if the decision is contrary to the overwhelming weight of the evidence, the Court may and should modify, reverse, remand or set aside the decision, remembering, however, that it may not substitute its own judgment on the evidence for that of the Commission. Jacobs v. Bob Eldridge Const. Co., Mo.App., 393 S.W.2d 33; Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647; Conley v. Meyers, Mo., 304 S.W.2d 9.

We have no doubt that the Commission could reasonably find, as it did, the existence of total and permanent disability at all times after claimant sustained her fall in July, 1963. Since the parties agree on the controlling law, i. e., that the prior disability must have been industrially disabling, we have one rather narrow issue to determine. In Wilhite v. Hurd, Mo., 411 S.W.2d 72, the Court ruled that any prior disability must have been of that character in order to charge the Second Injury Fund. The Court there said, in part, at loe. cit. 77: “The pre-existing permanent partial disability necessary to compensation from the Second Injury Fund under Section 287.220, V.A.M.S., relates to disability to work and means ‘industrial disability’ or loss of earning capacity, rather than physical impairment as such. Diederich v. Tri-City Ry., 219 Iowa 587, 258 N.W. 899, 902[2]; 99 C.J.S. Workmen’s Compensation § 296, p. 1035.” The “second injury” statutes vary widely in their requirements from state to state. California and Minnesota, like Missouri, hold that any prior disability must be such as to partially disable the claimant from work, or to impede his labors. Ferguson v. Industrial Accident Commission, 50 Cal.2d 469, 326 P.2d 145; Rikala v. Rundquist Construction Co., 247 Minn. 401, 77 N.W.2d 551; the California statute expressly requires that the prior disability be “labor disabling.” In all probability it would be found that various states follow the same rule, either by statute or judicial decision. Some idea of the divergence in the terms of the statutes may be seen from examining 101 C.J.S. Workmen’s Compensation § 837, p. 147 et seq., and Larson on Workmen’s Compensation (1952), Vol. 2, § 59.30, p. 58 et seq. Some require that the prior disability shall have resulted from a compensable injury; Missouri has expressly rejected that view by the very terms of its statute. Some statutes require that the prior disability must have affected the claimant’s earning power. Missouri has ruled the point and we need go no further.

The purpose of these statutes is to make it more probable that employers will hire handicapped persons; this, because with the Second Injury Fund available, the employer may thus be reasonably certain that he will not be adjudged liable for the entire terminal condition of disability, under the circumstances provided for by the statute. Federal Mutual Ins. Co. v. Carpenter, Mo., 371 S.W.2d 955; 99 C.J.S. Workmen’s Compensation § 298, p. 1047 et seq.

Aside from Wilhite, supra, the Missouri cases which have dealt with the second injury statute do not affect our issue in any way. Grant v. Neal, Mo., 381 S.W.2d 838; Stewart v. Johnson, Mo., 398 S.W.2d 850; Cole v. Morris, Mo., 409 S.W.2d 668; Federal Mutual Ins. Co. v. Carpenter, Mo., 371 S.W.2d 955; Buzzard v. Morris, Mo., 410 S.W.2d 71. There is no doubt here that the claimant did have various substantial bodily infirmities prior to the injury of July, 1963; in part, at least, these were due to her age. These infirmities could well have affected her ability to work and her earning capacity; they could have caused her to do less work or to work only part time; thus, they might have been industrially disabling to some extent. The practical difficulty here is that no one offered the slightest bit of evidence on this controlling issue and we are left to speculation. The plaintiff testified, as did a representative of her employer. Neither was asked, nor did she testify, why the claimant was working only one day a week, or why, about two years before her injury, she had ceased working three days a week. Her work, for one day a week, continued to be entirely satisfactory; and while we do not penalize the claimant for failing to complain of her ailments, the fact is that she made no complaint.

The statute, § 287.020(8), and some of our cases attempt to define total disability. Groce v. Pyle, Mo.App., 315 S.W.2d 482; Vandaveer v. Reinhart & Donovan Construction Co., Mo.App., 370 S.W.2d 156; Kateman v. Zink et al., 238 Mo.App. 253, 180 S.W.2d 253. If the claimant was prevented by bodily infirmities from performing a part of the usual and customary duties of her occupation or of any other occupation for which she was reasonably-suited so that her earning power was thereby affected, or more specifically if she was thereby caused to work only part time,— she was partially disabled, industrially. See Wilhite, supra.

The burden is on the claimant to prove all material elements of her claim. Dixon v. Art Bunker Motors, Inc., Mo.App., 387 S.W.2d 199; Simmons v. Mississippi River Fuel Corp., Mo.App., 43 S.W.2d 868. Having failed to produce substantial evidence of any industrial disability prior to July 18, 1963, she has failed to establish her claim. We thus rule, in accordance with § 287.490, that in the respect noted there was not sufficient competent evidence in the record to warrant the making of the award. However, in view of the nature and type of the evidentiary deficiency, and in our discretion as granted in that section, we shall set aside the award but order the matter remanded to the Industrial Commission in order that the parties may be offered an opportunity to supplement the evidence in the respect herein discussed. In such event, the evidence previously taken need not be repeated; the Commission should make a finding upon the issue of prior industrial disability from all the evidence. Such a remand is proper under our adjudicated cases, as well as by the express terms of the statute. Stepaneck v. Mark Twain Hotel, Mo.App., 104 S.W.2d 761; Friede v. George Lytle, Inc., 235 Mo.App. 64, 127 S.W.2d 40; McWhorter v. White Baking Co., Mo.App., 81 S.W.2d 992; Fear v. Ebony Paint Mfg. Co., 238 Mo.App. 560, 181 S.W.2d 559; Kristanik v. Chevrolet Motor Co., 335 Mo. 60, 70 S.W.2d 890, loc. cit. 894.

The judgment of the Circuit Court is reversed, and the cause is remanded to it, with directions to remand to the Industrial Commission for further proceedings in accordance with this opinion.

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Violette H. BELLO, Appellant, v. RANDOM HOUSE, INC., Bernard Geis & Associates, Dell Publishing Company, Inc., Irving Shulman, and Ward Parkway Book Shop, Inc., Respondents.
    No. 52866.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1967.
    Rehearing Denied Jan. 8, 1968.

      Glenn E. McCann, Knipmeyer, McCann & Millett, Kansas City, for appellant.
    John R. Gibson, Ronald C. Spradley, Morrison, Hecker, Cozad, Morrison & Curtis, Kansas City, for respondents.
   HOUSER, Commissioner.

The question for decision, concededly a case of first impression in this state, is whether a surviving relative has a cause of action under § 559.410, RSMo 1959, V.A. M.S., for a malicious defamation, made public by printing, designed to blacken and vilify the memory of one who is dead. The question arises in this wise: Violette H. Bello, the surviving widow of Marino Bello, deceased, brought an action in the Circuit Court of Jackson County for $1,000,000 damages for libel against the publishers, distributors, a local seller and the author of the book “Harlow, an Intimate Biography.” The petition charged that defendants maliciously published false, defamatory and libelous printed matter concerning Marino Bello which blacken and vilify the memory of the deceased Marino Bello and scandalize or provoke his surviving relatives and friends, in violation of § 559.410, and that plaintiff as his widow is scandalized, provoked and libeled by reason of the publication of the book. The circuit court sustained the motion of Random House, Inc., Dell Publishing Company, Inc., and Ward Parkway Book Shop, Inc. to dismiss and dismissed the petition for two reasons: (1) for failure to state a claim upon which relief can be granted and (2) because any claim that may exist has abated under the provisions of § 537.030, RSMo 1959, V.A. M.S. Plaintiff appealed, claiming that in so ruling the court erred; that § 559.410 created a cause of action for libel in plaintiff and that she properly alleged such a cause of action in her petition; that her cause of action is not abated by § 537.030 because that section applies only to persons who have died, and has no application to plaintiff, who is alive.

The circuit court did not err in ruling that the petition does not state a claim upon which relief can be granted. Section 559.410, which appears in the chapter on “Offenses against Persons” under the title “Crimes and Punishments,” defines libel. It is a definition section. Although the definition of libel therein contained is applicable both to civil as well as criminal cases, Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, 53 [11]; Hylsky v. Globe Dem. Pub. Co., 348 Mo. 83, 152 S.W.2d 119, 122 [5, 6], it is substantially the same as the definition of libel at common law, Skelley v. St. Louis & S. F. R. Co., 176 Mo.App. 156, 161 S.W. 877, 878; Kenworthy v. Journal Co., 117 Mo.App. 327, 93 S.W. 882, 885. No right of action existed at common law for damages for the defamation of the dead, in favor of the surviving relatives who themselves are not defamed. Gillikin v. Bell (1961), 254 N.C. 244, 118 S.E.2d 609 [5]; Renfro Drug Co. v. Lawson, 138 Tex. 434, 160 S.W.2d 246, 146 A.L.R. 732, 739; Rose v. Daily Mirror, 284 N.Y. 335, 31 N.E.2d 182, 132 A.L.R. 888; Kelly v. Johnson Publishing Co., 160 Cal.App.2d 718, 325 P.2d 659; Hughes v. New England Newspaper Pub. Co., 312 Mass. 178, 43 N.E.2d 657; 33 Am.Jur. 42; 53 C.J.S. Libel and Slander § 11 a., p. 53; Restatement of Torts, Vol. 3, pp. 143-144.

One reason for the rule is that the action is personal. The injury must be to the reputation of the plaintiff. No action lies by a third person for a libel directed at another. “A party cannot support a charge of libel by showing that the same publication libeled another. To make a case, the publication must be libelous as to the plaintiff, not another. The malice supporting the charge must flow from defendant to plaintiff and be personal to him alone and not another. * * * In libel every tub stands on its own bottom.” Diener v. Star-Chronicle Pub. Co., 230 Mo. 613, 132 S.W. 1143, 1147. The action must be brought by the person against whom the defamatory charge has been made. 53 C.J.S. Libel and Slander § 145; Renfro Drug Co. v. Lawson, supra. Nothing in “Harlow, an Intimate Biography” defamed, reflected upon, or referred to plaintiff. The only reference in the book to the wife of Marino Bello were references to the former Mrs. Bello (Jean Harlow’s mother) and not to this plaintiff, who married Bello after Bello was divorced from Jean’s mother.

The intent of the General Assembly in enacting this section “was to make all classes of libel misdemeanors [i. e., criminal] and actionable per se, and not to make publications libelous other than at common law.” (Our brackets and emphasis.) Skel-ley and Kenworthy, supra. It was not intended to modify the common law by creating an entirely new cause of action for the recovery by surviving relatives and friends of damages for the defamation of a dead person. If this had been the intention of the lawmakers when in 1879 this section was first enacted that intention would doubtless have been clearly stated and not left to implication; the surviving relatives given the right to sue would have been designated and provision made for the distribution of any sums recovered.

The circuit court having properly sustained the motion to dismiss for failure to state a claim upon which relief can be granted, it is unnecessary for us to consider the question of abatement under § 537.030, or respondents’ point that the motion was properly sustained because this action is governed by the law of California, where plaintiff resides, under which it is said that there is no civil action for defamation of a deceased person.

Judgment affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . “559.410. Libel defined. — A libel is the malicious defamation of a person made public by any printing, writing, sign, picture, representation or effigy tending to provoke him to wrath or expose him to public hatred, contempt or ridicule, or to deprive him of the benefits of public confidence and social intercourse, or any malicious defamation made public as aforesaid, designed to blacken and vilify the memory of one who is dead, and tending to scandalize or provoke his surviving relatives and friends.”

      . “537.030. Section 537.010 not to extend to what actions. — Sections 537.010 and 537.020 shall not extend to actions for slander, libel, assault and battery or false imprisonment.”


text:
    Wesley GABEL and Leora Gabel, Appellants, v. Floyd Lester BIRD, Jr., Defendant, and State Farm Mutual Automobile Insurance Company, Garnishee-Respondent.
    No. 52528.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1967.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 8, 1968.

      Mogab & Hughes, by Richard L. Hughes, St. Louis, for appellants.
    James A. Cole, Jenny & Cole, Union, for respondent.
   HENRY J. WESTHUES, Special Commissioner.

This is a garnishment proceeding instituted by Wesley Gabel and his wife Leora to recover $20,000 from the State Farm Mutual Automobile Insurance Company. A trial was had in the Circuit Court of Franklin County, Missouri. A jury was waived and the court found the issues in favor of the garnishee. A motion for a new trial was denied and plaintiffs appealed.

The facts culminating in the garnishment proceeding were as follows.

On February 21, 1964, Wesley Gabel gave Floyd Bird, Jr., permission to use Gabel’s car for the purpose of taking Gabel’s daughter Judith, aged 17, to Bird’s home in Sullivan. On the return trip, while Bird was driving on Interstate 44, the car overturned, causing Judith’s death. Wesley Gabel and his wife filed suit against Bird and obtained a judgment for $20,000. Judith was an unemancipated child residing with her parents.

It was admitted that State Farm Mutual was notified by both Gabel and Bird of the suit. State Farm Mutual refused to defend Bird on the theory that the policy of insurance issued to Wesley Gabel did not cover Judith Gabel because she was an insured under the policy issued to Wesley Gabel.

The policy of insurance was introduced in evidence and was reproduced in plaintiffs’ brief. We shall set forth the clauses deemed material by plaintiffs, together with plaintiffs’ statement of the issues. They are as follows:

“On June 7, 1966, a trial was held on the garnishment proceeding. The issue as reflected in the pleadings was whether as a matter of law, garnishee’s insurance policy (Plaintiff’s Exhibit 5, Garnishee’s Exhibit A), (a) provides liability coverage to Floyd Bird, Jr., and/or (b) excludes Judith Gabel from policy benefits. The policy clauses which are the crux of this dispute read as follows:
“INSURING AGREEMENT I — THE OWNED AUTOMOBILE
“COVERAGES A and B—
(A) Bodily Injury Liability and
(B) Property Damage Liability.
“(1) To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of (A) bodily injury sustained by other persons, * * *.
“DEFINITIONS — INSURING AGREEMENTS I AND II
“Insured — under coverages A, B, C and M the unqualified word ‘insured’ includes
“(1) the named insured, and
“(2) if the named insured is a person or persons, also includes his or their spouse(s), if a resident of the same household, and
“(3) if residents of the same household, the relatives of the first person named in the declarations, or of his spouse, and
“(4) any other person while using the owned automobile, provided the operation and the actual use of such automobile are with the permission of the named insured or such spouse and are within the scope of such permission * * *.
“EXCLUSIONS — INSURING AGREEMENTS I AND II
“This insurance does not apply under: * * * (i) coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured; * * *.
“POLICY CONDITIONS — APPLICABLE TO ALL COVERAGES UNLESS OTHERWISE NOTED
“ * * * 9. Joint and Several Interests. If two or more insureds are named in the declarations, this policy shall apply to them jointly and severally, unless otherwise specifically stated herein, but the inclusion of more than one insured shall not operate to increase the limits of the company’s liability.”

Under “Points and Authorities” plaintiffs state that “The Court erred in failing to find that as a matter of law, Judith Gabel was not excluded from benefits under Respondent’s insurance policy and particularly the ‘Exclusions — Insuring Agreements I and II’ of Plaintiffs’ Exhibit 5 because as a matter of (a) grammar, (b) syntax, (c) law, the definition of ‘insured’ contained in the paragraphs entitled ‘Definitions — Insuring Agreements I and II’ does not apply to the term ‘insured’ when used in the ‘Exclusions — Insuring Agreements I and II’ clause.”

Plaintiffs in their brief contend that the provisions of the policy are ambiguous and that policies of insurance must be liberally construed in favor of the insured. That is the correct rule when ambiguous clauses are contained in the policy. However, courts do not rewrite insurance contracts and may not create an ambiguity where none is present. Lynch v. National Life & Acc. Ins. Co., Mo.App., 278 S.W.2d 32, 1. c. 34 [3, 4],

We are unable to discover any ambiguity in the provisions of the policy that are applicable to the parties in this case. As we understand the terms of the policy, State Farm Mutual by “Insuring Agreement I” contracted to pay for the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury sustained by other persons.

The next clause, “Definitions — Insuring Agreements I and II,” defines the word insured to include the insured in this case, Wesley Gabel, his wife Leora, their daughter Judith, and Floyd Lester Bird, Jr., who operated the car in question with permission of Wesley Gabel.

Next, the vital “Exclusions” clause. This clause plainly states that “This insurance does not apply under: * * * (i) coverage A, to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured * * That certainly included Judith, the injured person. It was admitted that Judith was a member of the family and resided with her parents. Clearly, Judith, had she lived, could not have recovered from State Farm Mutual under the policy even if she had obtained a judgment against Bird. In these circumstances, the parents cannot recover on the policy of insurance.

The last clause, “9. Joint and Several Interests,” relied on by plaintiffs, does not affect any issue in the present case.

The conclusion we have reached is supported by cases from a number of states, as well as cases decided by our courts of appeal and our supreme court. In the case of Hogg v. State Farm Mutual Automobile Ins. Co., 276 Ala. 366, 162 So.2d 462, an identical question to the one before us, the Supreme Court of Alabama held the exclusion clause applicable and the State Farm Mutual was held not to be liable. The court in that case disposed of the question in a brief opinion approving a similar ruling in a previous case where the question was treated at length. Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So.2d 920, 1. c. 924, 925 [3-5], The Supreme Court of Minnesota in Pearson v. Johnson, 215 Minn. 480, 10 N.W.2d 357, had before it a case much like the one before us and held that the exclusion clause governed the situation. Other like cases are: Great American Ins. Co. v. State Farm Mut. Auto. Ins. Co., 412 Pa. 538, 194 A.2d 903, and Kirk v. State Farm Mutual Automobile Ins. Co., 200 Tenn. 37, 289 S.W.2d 538.

The courts of appeal in our state and our supreme court have ruled on similar situations. In the case of Sibothan v. Neubert, Mo.App., 168 S.W.2d 981, 1. c. 984 [2], the St. Louis Court of Appeals had the following to say: “However, the ‘risks not covered’ clause is no less entitled to be accorded its effect; and it provides that the policy shall not cover claims for injury of the ‘insured.’ Since plaintiff was clearly included within the definition of the unqualified term ‘insured’, liability for her injury was one of the risks not covered by the policy; and the court was right in its decision in favor of the garnishees.”

The Kansas City Court of Appeals followed the Sibothan case in Perkins v. Perkins, Mo.App., 284 S.W.2d 603, 1. c. 610, 611.

Division One of this court, in the case of State Farm Mutual Auto. Ins. Co. v. Ward, Mo., 340 S.W.2d 635, held that the exclusion clause in question was valid and covered members of the family of the person insured residing in the same household.

Plaintiffs in their brief say that Floyd Bird, Jr., was not a member of the Gabel family and “needs insurance protection for this potential liability.” The fact remains that Judith Gabel was a member of the Gabel family, and State Farm Mutual under the policy, was not liable for injuries to Gabel and members of his family residing in his household. This court is powerless to change the plain terms of the insurance contract in question.

It follows that the judgment of the trial court should be and is hereby affirmed.

PER CURIAM:

The foregoing opinion by HENRY J. WESTHUES, Special Commissioner, is adopted as the opinion of the court.

All concur.