text:
    JOHN DEERE COMPANY OF ST. LOUIS, a Corporation, Respondent, v. Newton H. SHORT, d. b. a. Short Equipment Company, Appellant.
    No. 50157.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.

      George E. Sullivan. O’Fallon, for defendant-appellant
    William M. Howard, Robert L. Sweney, St. Louis, for plaintiff-respondent; Bryan, Cave, McPheeters & McRoberts, St. Louis, of counsel.
   HOUSER, Commissioner.

John Deere Company of St. Louis sued Newton H. Short in three counts, Counts I and II in replevin for possession of farm equipment; Count III for damages for breach of a general agricultural dealer’s contract. Short filed an amended counterclaim in two counts, Count I for damages for fraud; Count II for $150,000 actual and $150,000 punitive damages, for conspiracy. By stipulation judgment was entered for plaintiff on Counts I, II and III of the petition under an agreement that the amount of the judgment on Count III would depend upon a determination by the court whether defendant was entitled to a volume discount. If so, the judgment was to be for $13,303.50 on Count III; if not, the judgment thereon was to be for $26,187.50. The issues on Count II of the counterclaim were tried to a jury, which returned a verdict for Short and against John Deere for $46,700 actual and $10,000 punitive damages. The court found that Short was not entitled to a volume discount and entered judgment for Short for the net sum of $30,512.50. John Deere filed an after-trial motion for judgment in accordance with its motion for a directed verdict and in the alternative for a new trial. The court granted the motion and entered a new judgment for John Deere for $26,187.50 under Count III of the peti-tioii; for John Deere for possession under Counts I and ’ II; against Short on his counterclaim, and made the appropriate order under Supreme Court RuU. 72.02, V.A. M.R. Short appealed.

Short was employed by John Deere in various capacities from March 1, 1950 until sometime in 1955, when he resigned to take other employment. During a part of the time he was employed by John Deere his immediate superior was one I. L. Parks, Division Sales Manager for John Deere. Parks not only worked for John Deere as -an employee but also owned an interest in a John Deere dealership at Elsberry, with his son Robert. In 1958 one Pottmeyer, Division Credit Manager for John Deere, told Wayne Carter, a traveling inspector for John Deere, that he knew that Parks had a'n interest in the Elsberry dealership; that Parks had sold his home in St. Louis and poured all the money he had into the dealership, and that in his opinion it was “broke.” Parks had given mortgages on John Deere equipment sold to farmers, and engaged in other practices which eventually resulted in his discharge by John Deere. In 1958, before Parks’ discharge, he met Short one day and sought to interest Short in buying into the Elsberry dealership. Several discussions culminated in Short buying into the dealership. A new corporation was formed for the conduct of the business. Short paid 'the corporation $15,-000. Parks and his son Robert put the assets of the old company into the new business, and each of the, three men put in an additional $1000 as operating capital. A franchise dealer contract was entered into between John Deere and the new corporation in January, 1959. Short actively entered the business, taking care of parts and service, while Robert handled sales and accounts. I. L. Parks continued in his capacity as division sales manager, came to Elsberry on weekends, and dictated the operation of the business. In February or March, 1960 I. L. Parks asked Short if he wanted to buy out the Parks. Between then and September, 1960 the parties met five or six times to discuss the proposition. Short’s father-in-law, an experienced business man, was concerned becarise operating capital was needed and Short’s resources were limited. Short realized that he would need operating capital the next spring. At the fourth meeting, in August, I. L. Parks made an oral promise that Short would get “an operating loan” from John Deere when Short needed it. ■ Short had talked to the John Deere dealer at Paris, Missouri, from whom he had learned that the company had made an operating loan to that dealer. Again in September, 1960 I. L. Parks gave Short and his wife and father-in-law a promise that they would get an operating loan when they “needed one.” There was no evidence that I. L. Parks had authority to commit John Deere to an operating loan to Short. The only person with that authority was the vice-president and general manager. Paries did not discuss with Short the amount of the prospective loan, the period of the loan, or when it would be made, “except just generally in the spring.” According to Short the interest rate was to be either 5 or 6 per cent, but according to Mrs. Short the subject of interest was not discussed. Short testified that security was mentioned in the discussions but could not recall what security was discussed. No written application for a loan was ever made to the company. At no time did Short ever discuss a loan with any company employee or official other than Parks, although Short knew several John Deere officials and had an opportunity to discuss this matter with them. For instance, in September, 1960 Short visited the company’s general sales manager, P. M. Maddox, in his St. Louis office, at which time Short was assured that as a new dealer he would be treated “as fair as any new dealer going into the organization,” but Short did not ask Maddox about the capital loan.

The sale of the Parks’ interest in the Elsberry agency was consummated on October 20, 1960. Short paid Parks and his son $15,000 and gave a note for $26,830 to Elsberry Equipment Company, Inc. Short began operations as Short Equipment Company in October, 1960, with $2,000 operating capital and an inventory of $75,000. Early in November, 1960 John Deere and Short signed a dealer’s contract by which the company agreed to sell and Short agreed to buy the company’s products, subject to and in accordance with the terms of the contract, and the company agreed to make available to Short “Any finance plan for [dealers] which the Company may have in force during the term of this contract” to assist the dealer in financing sales, with the understanding that the company might without liability or obligation change or discontinue any such plan at any time without notice. John Deere agreed to reimburse the dealer for the cost of parts and for labor done under company’s authorized warranties. The parties also signed a floor-plan agreement for trade-in of agricultural equipment, and a credit plan for new and used equipment sold for agricultural purposes. The object of the floor plan was to assist the dealer in financing certain specified trade-in machines accepted as part payment in the original sale of new John Deere equipment. When a sale was made the dealer was to remit to the company the cash and the note received from the purchaser, and the dealer’s account would be credited with the cash and an “acceptable” purchaser’s note. The company reserved the right to establish the maximum value of any trade-in machine and a limit of credit to be extended to a dealer for total floor-plan notes. Under the credit plan the company agreed to accept purchasers’ notes as a credit to the dealer’s account with the company, subject to the conditions of the contract. Late in November, 1960 Short was called in to the St. Louis office of John Deere where inquiry was made of him concerning a customer’s tractor which I. L. Parks had mortgaged to John Deere. Apparently the company representatives were investigating Parks. This was the first time Short knew that I. L. Parks was in trouble with John Deere. Concerned about the repercussions which the investigation might have in his community, Short asked for and obtained from the company officials a promise of cooperation. Parks resigned in December, 1960 and was replaced by Willard Finn. In January, 1961 Short discussed with Finn his “need for operating capital later on”; asked Finn about the operating loan promised by Parks; told Finn that he “was going to have to have it” if he were to continue as a successful dealer. Finn did not give Short either an affirmative or a negative answer on the matter of a loan, but from the conversation Short concluded that Finn was going to “follow .it through.” Finn. considered the matter but did nothing about it; did not pursue it with anyone at John Deere. In the spring of 1961 Short needed operating capital. He had operating expenses, payrolls, rent, etc. to pay. The farmers ran up sizeable credit accounts for repairs during this season. Considerable work was done for farmers on company warranties. Short had to pay cash for the parts used, and although he was later to be reimbursed there was a time lag during which interval his money was tied up. Short took in a number of expensive trade-ins. Because his capital was restricted Short used the cash he received from sales to pay operating expenses, and did not remit to John Deere for the equipment purchased from the company. In June, 1961 the company put Short on a C.O.D. basis. Having to pay cash limited his •operations insofar as discounts and “trade conditions” were concerned. Two representatives of John Deere, Janey and Rake, the latter of whom was branch house credit manager, came to Elsberry in June to take inventory, with instructions not to let Short sell another piece of new goods. They stayed at Short’s place of business two or three days. During that time they ■“killed” the sale of a straw chopper to one Bradley, who offered to give a check direct to John Deere in payment. The inventory disclosed that Short had sold goods for which he had not paid. The shortage amounted to $22,000. During this visit Rake and Janey told Short that he was not going to get an operating loan. After their visit the volume of sales was less than 25% of the sales before their visit. In July, 1961 Short received an invoice from’ the Kansas City parts depot for the June parts stock order, across the face of which was written “Discontinued dealer.” In numerous instances labor and parts claims under warranties were delayed or never paid. Sometimes goods ordered from John Deere were not delivered within the time normally to be expected, or never delivered. In November, 1961 Short had a sale for a tractor and sent his truck to pick it up. As it was being loaded onto his truck at the warehouse the loader received orders to back it off the truck, and company representatives informed Short’s serviceman that Short was not going to get the tractor. Two harrows ordered July 12 were not delivered until after September 1, after Short had lost the sale. Two harrow sections ordered on April 24 were not delivered until May 25, although normal delivery is immediately or within two weeks. Short did not receive credit on certain surplus goods returned to the company. Attachments ordered in January were delivered after the middle of May, too late for use during the planting season. On a number of shipments the company invoiced Short at regular list prices charged farmers instead of billing him at wholesale prices, to which he was entitled. In November, 1961 company representatives made another inventory, found that the shortage had been increased by $21,000, asked Short for the money he owed the company and requested possession of the merchandise still in stock. Short refused to voluntarily give the company possession of the goods and stated the company would have to get a court order to take the goods. On November 30, 1961, John Deere instituted the replevin suit and in early December the sheriff seized the goods and equipment on hand. In January, 1962 Short had a public sale of what was left and closed the business.

Short purchased over $190,000 worth of goods from John Deere in 1961. Short invested $16,000 in the business on September 4, 1959; $1,500 or $1,600 in late 1959 or early 1960; paid $15,000 to Elsberry Equipment Company in October, 1960; gave a promissory note for $26,830 as heretofore described; put $2,300 or $3,300 into the business in December, 1960; $1,000 early in 1961; $5,400 through the summer and up until October, 1961; and another $9,000 after September, 1961.

At the conclusion of all the evidence the court directed a verdict for plaintiff on Count I of defendant’s counterclaim, (the ■charge of fraud), and- submitted the case to the jury on Count II, in which it was alleged that through its agents and servants John Deere entered into a malicious conspiracy to destroy Short’s business as a John Deere dealer and that said agents and servants acting in concert caused I. L. Parks to make the fraudulent representation that if Short would enter into the dealer’s contract with John Deere he would have full cooperation of the company, which would make cash and equipment loans to Short and enter into the company’s finance plan with him, make prompt delivery of its products, and would do business on liberal credit terms and not on a cash on delivery basis; that John Deere failed to cooperate with Short as a franchised dealer ; failed to grant him cash or equipment loans, or to implement the finance plan; failed to make prompt delivery of products and parts; required him to pay cash on delivery, and harassed him with lawsuits. In granting John Deere’s motion for judgment on the counterclaim in accordance with its motion for a directed verdict the circuit court found that in six different respects there was not sufficient evidence to sustain its theory of recovery on Count II.

On this appeal Short contends that the evidence, both direct and circumstantial, was sufficient in all respects to sustain the verdict in his favor on Count II, because it shows that John Deere knew of Parks’ interest in the Elsberry dealership, and of his defalcations; knew it would take outside capital to “bail out Parks in the dealership :so they could get rid of him as an employee”; is charged with knowledge of Parks’ promise of the loan to Short, or is estopped to ■deny the agency since it accepted all of the benefits after knowledge of the loan; received $15,000 paid by Short to Parks and by Parks to John Deere to settle Parks’ account; knew Short had little or no operating capital and that he needed it badly in the spring of 1961, but nevertheless failed to make the promised loan and instead did everything it could to further decrease his operating capital, by failing to deliver machinery and parts on time, failing to credit him with warranty work done or reimburse him for parts purchased for warranty work, so they could put him on C.O.D. in June, 1961 and “throw him to the wolves,” as a result of which his business was destroyed.

Short’s counterclaim sounds in tort. It is based upon the charge that the John Deere Company corporation, by and through its agents and employees, entered into an unlawful and malicious conspiracy against Short, the malicious and wrongful design of which was to destroy Short’s business as a dealer for John Deere and thereby unlawfully, maliciously and wrongfully cause Short to go out of business as a dealer, to his financial loss and ruin.

The charge of conspiracy fails. Only the corporation (by its agents) is charged with conspiracy. The corporation is the only entity sued. A corporation cannot conspire with itself. Poller v. Columbia Broadcasting System, Inc., D.C. Cir., 284 F.2d 599, 603. Furthermore, Short did not sustain the burden of proving the alleged conspiracy. There is nothing in the record to indicate directly or by inference that any of the agents and employees of John Deere entertained any spite, ill will, hatred, or malice against Short, or that what they did constituted the intentional doing of a harmful act, without just cause or excuse, or that there was any intention or purpose to destroy Short’s business or drive him to financial ruin. There is nothing from which a motive to destroy Short’s business may be deduced. There is nothing to indicate in what manner John Deere, or any of its agents and employees, could have benefited by such a consummation. It is evident that John Deere would best benefit by having a prosperous, successful dealer. The only reasonable motivation of John Deere and its agents and employees would be to. encourage and ■ assist Short and extend him credit as long as there was a reasonable prospect of his succeeding as a dealer. The evidence indicates that credit was extended. John Deere shipped goods to Short on a secured basis until June, 1961, to which time it had sold him $22,000 of goods for which he had not paid. Instead of closing him out at that time and canceling his contract, which it had a contractual right to do, John Deere -permitted him to retain the goods on hand and to place further orders, requiring him, however, to take future deliveries on a C.O.D. basis. It was only after it was discovered in November, 1961 that Short’s indebtedness to John Deere had been increased by an additional $21,000, and he had continued to fail to make remittances, that the relationship was terminated by John Deere. No submissible case of conspiracy- or of malicious wrongdoing arises out of these facts.

Where the proof of conspiracy fails the complaining .party . may nevertheless prevail if. the proof shows actionable conduct oh the part of the wrongdoer, resulting in injury from.which damages flow.. Baucke v. Adams, 239 Mo.App. 84, 188 S.W.2d 355, 367. So we inquire. whether, the. acts of-the company’s .agents and employees, although not done, in furtherance of a conspiracy, nevertheless amount to a tortious or wrongful destruction of Short’s business; whether those acts violated some positive, legal right or breached a legal duty owed Short, to his damage.

Short’s first contention is that John Deere, through its agents and employees, caused, allowed and permitted I. L. Parks to make “the false and fraudulent representations referred to in paragraph 2 of Count I of this counterclaim.” Short’s cause of action for fraud, set forth in Count I, was dismissed by the court and Short failed to take a timely appeal from the order of dismissal. .The only issue of fraud charged in Count II was the same issue of fraud set forth in Count I, which’ was dismissed by the court and consequently the issue of fraud became res judicata.

Short’s contention that John Deere harassed him' with lawsuits is not borne out by the record. The instant suit is the only litigation between the parties. No claim for malicious prosecution for the filing of this action could accrue to Short until this suit terminated in his favor, Zickel v. Knell, 357 Mo. 678, 210 S.W.2d 59, 60, 3 A.L.R.2d 1304, but both phases of this case terminated in judgments against Short. On the petition Short stipulated to the entry of judgment against himself and John Deere ultimately prevailed in the lower court on Short’s counterclaim.

Short’s - other contentions are that John Deere, through its agents and employees, denied Short the “full cooperation”’, usually and customarily extended to incoming franchise dealers, and failed and refused (a) to grant cash loans to Short in reasonable amounts from time to’time, (b) to offer, extend and grant to Short equipment loans in the usual and customary, course of business, (c) to implement and follow the “finance plan” as it applied to. Short, and .(d) to make prompt and efficient delivery of its products and parts to Short.

. The charge that John Deere failed in its. obligation to extend “full cooperation” to Short as a dealer is too vague, indefinite and nebulous to provide the basis of a recovery in this action.

With respect to the charge that John Deere failed and refused to grant cash and equipment loans to Short, we find no positive legal right on the part of Short to require John Deere to do these things, and no basis upon which it can be said that in failing or refusing to do them John Deere breached any duty it owed Short. John Deere was under no noncontractual duty to grant cash loans or equipment loans, to Short. The relationship of manufacturer and dealer- did not, as such, without contractual reinforcement, impose any such -duties upon John Deere. It has not been demonstrated how the failure or refusal of John Deere to do these things amounted .to tortious conduct on its part arising out <of a breach of any recognized noncontrac-tual legal duty. Nor was John Deere under any contractual obligation to grant cash loans or equipment loans to Short, either by the provisions of the three written contracts entered into by the parties, or as a result of I. L. Parks’ gratuitous promise that John Deere would make a loan to Short. Short contends that I. L. Parks’ statements that the company would make Short a loan resulted in a contractual obligation on the part of John Deere to make a loan, but such a promise would be unenforceable for uncertainty if for no other reason, since there was nothing said about the terms of the prospective loan — what amount, when the loan was to be made (except the vague reference to “in the spring”), the due date for repayment, security, etc. More importantly, Parks had no authority to make such a commitment on behalf of John Deere. Under the evidence the only person in the John Deere organization who had that authorirty was the vice-president and general manager. Nor do we find any basis for an estoppel to deny Parks’ authority, as claimed.

Even if John Deere had contracted to make a loan and had breached the contract Short could not have recovered therefor in this action, which is not a claim of breach of contract, but of tortious misconduct. The violation of a contract will not, as such, furnish a basis for liability in tort. Lahtinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W.2d 102, 107 [4], Out of the contractual obligation a separate obligation or duty must arise before liability in tort will attach, i. e., breach of contract may be treated as a tort only “where the law casts its separate obligation.” Bishop, Non-Contract Law, 30, 31, §§ 73-76, quoted in Helm v. Inter-Insurance Exchange for Auto. Club, 354 Mo. 935, 192 S.W.2d 417, 420, 167 A.L.R. 238 [4]. Here there was no duty independent of contract to make loans, and therefore a breach of a contract to make loans would not constitute a tort. ■

By the same reasoning Short could not recover in this tort action for breach of a contract obligation to reimburse Short for the cost of parts or for labor done under company warranties, or to follow the finance plan, or to make prompt and efficient deliveries.

As to the charge that John Deere failed to implement and follow its finance plan, we have seen that a substantial line of credit was actually extended to Short (to the extent of $22,000 by June and an additional $21,000 by November). Prior to June, 1961 John Deere would send Short goods ordered by him, but Short would not have to pay for the goods until he sold them to a customer, and until sold the goods would remain at the dealer’s place of business. Short’s complaint is that he was put on a C.O.D. basis in June. By the terms of the contract Short signed, Part IV, paragraph 17, John Deere had a right to take this action. That paragraph authorized John Deere to “make further deliveries only on a cash or C.O.D. basis” if the dealer failed to perform his contract [he did],or defaulted in the payment of any obligation due the company [he did], or if the company felt itself insecure in doing business with the dealer by reason of any event which in the company’s judgment affected the dealer’s financial or credit position [it did]. With Short far behind on remittances the company had every right to place Short on a C.O.D. basis. In addition to these considerations the contract gave the company the right to change or discontinue the finance plan “at any time without notice and without liability or obligation on its part.”

With respect to the charge that John Deere did not make prompt and efficient deliveries, the evidence did not show what damages or loss of profits were sustained as a result of tardy deliveries or failures to deliver, and therefore there could have been no basis for a judgment on this basis, in any event.

Finally, the denial of a recovery on Short’s counterclaim must be sustained on the ground that Short introduced insufficient evidence from which the jury could have found that he sustained any net pecuniary loss or damage. Short testified that he invested a total of $79,130 in the business. The evidence indicates that all of the John Deere goods on hand when the sheriff levied under the writ of replevin were taken from Short, and the remainder of his property was sold in January, 1962. The business is “gone.” But this is not the whole story, and Short fails to account for other facts in evidence. Short received goods having an inventory value of $75,-000 when he purchased the assets and business of Elsberry Equipment Company, Inc. Thereafter he purchased and received from John Deere goods worth $190,000. Thus he had in possession a total of $265,000 worth of goods during the period in question. We are not advised how much of this was sold and paid for, how much was sold but not paid for and placed on the books, or the value of the goods remaining unsold at the time of the levy. If the unsold goods were worth $35,775, as the petition for replevin as amended alleges, this leaves more than $229,000 worth of goods the proceeds of which have not been accounted for by the evidence in this case. Did the disposition of the $229,000 plus worth of goods result in a profit or a loss? We do not know from this transcript. Nor are we informed what Short’s total income and outgo was during the period of the operation; whether Short took any money or assets out of the business; or the amount of the accounts remaining on the books when Short went out of business, and whether these accounts were collected or collectible. Nor did the evidence show the amount received from the sale of the remaining assets on January 20, 1962. Business losses must be established with reasonable certainty in order to be recovered as damages. Proof alone of the amount that goes into a business and that the business failed is not sufficient to establish that that sum or any particular sum was lost in the operation of the business. There must also be proof of facts showing what amounts were received in the course of the operation, in order to establish net gain or loss. Income as well as outgo must be shown; it is the net that counts.

No error appearing, the judgment is affirmed.

COIL and WELBORN, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . Appellant does not complain of the action of the court in directing a verdict for John Deere on Count I.


source: Caselaw Access Project

author: HOUSER, Commissioner. PER CURIAM:

license: Public Domain

text:
    Leon PIERCE, (Plaintiff), v. OZARK BORDER ELECTRIC COOPERATIVE, a Corporation, (Defendant and Third-Party Plaintiff), Appellant, v. J. W. GITHENS and E. E. Githens, d/b/a J. W. Githens Company, (Third-Party Defendants), Respondents.
    No. 49717.
    Supreme Court of Missouri, Division No. 1.
    May 11, 1964.

      See also 348 S.W.2d 586.
    Carter, Fitzsimmons & Brinker, Paul E. Fitzsimmons, Clayton, Wangelin & Friede-wald, Poplar Bluff, for appellant.
    Clarence A. Powell, Dexter, Blanton & Blanton, Sikeston, for third-party defendants-respondents.
   HOUSER, Commissioner.

This is an appeal from an order dismissing a third-party petition for indemnity, deemed a final judgment for the purposes of appeal. See Sup.Ct. Rule 82.06, V.A. M.R.

Third-party plaintiff Ozark Border Electric Cooperative, a corporation, hereinafter “Ozark,” filed a third-party petition against J. W. Githens and E. E. Githens, doing business as J. W. Githens Company, hereinafter “contractors,” praying for judgment against contractors for all damages and costs that might be adjudged against it in favor of plaintiff Leon Pierce in his negligence suit against Ozark.

Pierce’s petition against Ozark sought damages for personal injuries sustained by Pierce, when as an employee of contractors, engaged in the building of a bridge, Pierce received a high charge of electricity as he grasped a bucket being lowered by a crane operated by contractors, the crane having come in contact with Ozark’s overhead uninsulated electric power line. Pierce, alleging serious and permanent personal injuries and the loss of a member, prayed for $150,000 damages.

Ozark’s third-party petition charged contractors with active, primary, positive negligence and alleged that its own negligence, if any, was passive, secondary and remote.

Third-party defendant contractors filed a motion to dismiss the third-party petition, on the ground that it failed to state a cause of action. The circuit court sustained the motion and dismissed the third-party petition. Ozark has appealed from the order of dismissal.

After this appeal was taken Pierce and Ozark compromised and settled their differences. Ozark paid $34,500 to Pierce, who dismissed his cause of action with prejudice. After Ozark’s appeal to this court was .perfected Ozark filed here a verified motion to add to the record the fact that an amount in excess of $15,000 is involved on this appeal by reason of the settlement.

We have jurisdiction. Appellate jurisdiction over the subject matter is determined upon the record at the time the appeal is granted and “nothing subsequently occurring will defeat or confer jurisdiction on this court,” Hunter v. Hunter, 355 Mo. 599, 197 S.W.2d 299, 300, so we look to the record as of August 17, 1962, which shows that plaintiff was then making a bona fide claim to $150,000 damages in his action against Ozark. This fixes the amount in dispute for the purpose of our jurisdiction. Crouch v. Tourtelot, Mo.Sup., 350 S.W.2d 799, 803 [5].

Plaintiff Pierce alleged these facts: Contractors were engaged in the construction of a concrete bridge over a ditch on County Route BB in Ripley County. Ozark’s high voltage electric transmission lines crossed the road at the place where the bridge was being constructed. The wires were .so placed in position that persons working on the highway and on machinery required in- the construction work would be likely to come, in. contact with the wires. Contractors requested Ozark to move the wires or de-energize them at the point in question so as to provide a safe place for plaintiff and other employees to work. Ozark was aware .that the bridge construction was taking place and that heavy construction equipment including draglines and cranes were being used in the construction work at that point, and that the equipment would likely come in contact with the wires, but Ozark failed, neglected and refused to move the wires or de-energize the lines. The lines were uninsulated and no type or kind of shield or guard was provided at or near the wires to prevent persons from coming in contact with them. Employees of contractors were operating a crane or dragline on the highway at said point, transferring liquid cement from a mixer to the deck of the bridge upon which plaintiff was standing. The crane came in contact with the high voltage, transmission line and thereby transferred a deadly current of electricity, from the crane to plaintiff, who in the course of his employment, grasped the crane’s bucket preparatory to unloading it. As a result plaintiff sustained very severe injuries.

Pierce charged Ozark with negligence in the following particulars: maintaining the wires in an uninsulated condition; failure to provide any type or kind of shield' or guard at or near the wires so as to prevent contact with persons working in close proximity; failure to warn plaintiff of the presence and location of the wires and that they were uninsulated; failure to maintain the wires at a height above the ground that was safe and adequate to prevent contact therewith by persons working in close proximity.

Ozark filed a general denial and a plea of contributory negligence.

Ozark’s third-party petition as amended charged that at the request of contractors a representative of Ozark visited the site, and made recommendations as a result of which, without request by any public regulatory body or entity, Ozark at its own cost raised its wires approximately ten feet over the construction area and elevated them to a height in excess of the requirements of the National Safety Code; that Pierce’s injuries were the result of the “primary and active negligence” of contractors, as follows : operation of the crane in unusually close proximity to the transmission line; failure to warn plaintiff of the danger of working near the transmission line; failure to warn plaintiff of the proximity of the boom and cable to the transmission line when the crane was moving the concrete; placing the crane in a position near the transmission line; failure to notify Ozark of their intention to operate a crane in close proximity to the transmission line; failure to notify Ozark of their intention to pour concrete at that site on the day of the accident; failure to request Ozark to de-energize the wires; failure to request Ozark to place insulating materials over the energized wires; failure to request Ozark to have an employee present at the time and place. Ozark further alleged that any negligence on its part was passive, secondary and remote, and that if it is held liable to plaintiff by reason of the active negligence of contractors, Ozark is entitled to be fully indemnified and held harmless by contractors. Ozark referred to and attached to its amended third-party petition Pierce’s second amended petition for damages.

In answer to a request for admissions Ozark conceded that its line crosses the highway at the point in question, and that it knew generally that a culvert was to be constructed on Route BB in Ripley County, but denied that it knew when the culvert was to be constructed or on what day the concrete was to be poured; denied that it was advised that concrete would be poured that day; denied having been requested to de-energize its lines that day or at any other time at that site; denied knowledge that Pierce was working at the site that day; denied that it was requested to have an employee there that day; and claimed that it voluntarily relocated its wires by raising its primary wires to a height above the code requirements and in accordance with accepted engineering standards for the location of primary wire crossings of farm-to-market roads, by substituting a 45-foot pole for a 35-foot pole, thereby raising the line more than ten feet.

Ozark claims on this appeal that its third-party petition stated a cause of action against contractors for indemnity by alleging a situation in which the negligence of third-party defendants was the active and primary cause of the injuries sustained by plaintiff in that contractors, with full notice of the wires over their job site used a crane with a high boom in close proximity to the wires, and that the negligence of Ozark, if any, was secondary and remote. In support of its position Ozark cites Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., Mo.Sup., 338 S.W.2d 1; Barb v. Farmers Insurance Exchange, Mo.Sup., 281 S.W.2d 297; City of Springfield v. Clement, 205 Mo.App. 114, 225 S.W. 120; and Busch & Latta Paint Co. v. Woermann Const. Co., 310 Mo. 419, 276 S.W. 614.

This claim is for indemnity to the full extent of any liability to be imposed upon Ozark, and not a claim for contribution.

In the majority of cases in this state where indemnity has been allowed there existed a special relationship between indemnitor and indemnitee, Union Electric Co. v. Magary, Mo.Sup., 373 S.W.2d 16, 20, such as a contractual or quasi-contractual relationship, or the liability arose from “some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible.” State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 507.

We find no such special relationship, rule or situation in this case to support Ozark’s claim for indemnity. Ozark sees a contractual or quasi-contractual relationship between Ozark and contractors “in that the pleadings and the evidence in support thereof will show that at the request of Joy Githens [Ozark], without charge to [contractors] or compensation from any source, raised its wires approximately ten feet higher than they had been over the area where the bridge was to be constructed * * but this is contrary to the allegation in its third-party petition as amended that Ozark (not contractors) recommended the raising of the wires. Even if this was a typographical error and we should take it as an established fact that the wires were raised at contractors’ request, such a gratuitous act on Ozark’s part would not result in a contractual or quasi-contractual relationship between the parties. We notice in this connection that at the hearing of the motion to dismiss the third-party petition one of Ozark’s counsel admitted in open court that no contractual relationship existed.

The legal principles involved in this factual milieu are the same principles recently reannounced and applied in a situation not distinguishable from the instant case on the facts. Union Electric Co. v. Magary, Mo.Sup., 373 S.W.2d 16. Contractors’ motion to dismiss in the instant case was properly sustained for the same reasons the contractor’s motion for summary judgment was held in that case to have properly been sustained. We look at the charges of negligence alleged in Pierce’s amended petition, Union Electric Co. v. Magary, supra, 373 S.W.2d, 1. c. 21; Johnson v. California Spray-Chemical Co., Mo.Sup., 362 S.W.2d 630, 633; Crouch v. Tourtelot, Mo.Sup., 350 S.W.2d 799, 1. c. 804; State ex rel. Siegel v. McLaughlin, supra, 315 S.W.2d, 1. c. 503, to determine the nature and character of Ozark’s negligence. Pierce charged Ozark with active, primary negligence, and not inactive, secondary, or remote negligence, as Ozark claims. The charge against Ozark is that of negligently maintaining a highly charged, uninsulated and potentially dangerous power line at a place where it knew or should have known that construction work was to be done, in the course of which work there was a reasonable and probable likelihood that heavy construction equipment would be used which would likely come in contact with the wires, with consequent likelihood of injury to construction workers. Likewise, a case of active and primary negligence was asserted against contractors, in operating the crane in close proximity to and contacting the wires and failing to warn plaintiff of the danger. Ozark created the dangerous condition. ' Contractors joined in Ozark’s negligence by making the danger effective as to plaintiff. They “both participated, at the same instant, in the single act which caused the injury.” Hickman v. Union Electric Light & Power Co., Mo.Sup., 226 S.W. 570, 574; Union Electric Co. v. Magary, supra, 373 S.W.2d, 1. c. 22. As in Magary, the negligence of each “constituted an efficient cause without which the injury would not have occurred.” Id.

This is a plain case of concurrent or joint tort-feasors, having no relation to each other, each owing the same duty to the injured party, both involved in the accident which caused plaintiff’s injuries, both under a common liability and not a primary and secondary one. Where joint tort-feasors are in pari delicto neither is entitled to indemnity from the other. Johnson v. California Spray-Chemical Co., Mo.Sup., 362 S.W.2d 630, 633 [2]; Union Electric Co. v. Magary, supra, 373 S.W.2d, 1. c. 22.

Ozark makes the further contention that the court erred in sustaining the motion to dismiss for the reason that once the third-party petition was filed the court had no discretion to dismiss it; that the third-party plaintiff thereafter had an absolute right to submit its case to the jury under § 507.080, V.A.M.S. In our view a circuit court has the power and the duty to consider a motion to dismiss a third-party petition on the ground that it does not state a cause of action or “claim upon which relief may be granted,” the same as a motion to dismiss any other kind of petition, and not only can but should dismiss such a petition if it is lacking in this respect.

These considerations being completely dispositive of this appeal, we need not consider other points raised by the parties.

The order and judgment of dismissal is affirmed.

COIL and WELBORN, CC, concur.

PER CURIAM:

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

All of the Judges concur.

      . A rule subject to tlie qualifications referred to in Feste v. Newman, Mo.Sup., 308 S.W.2d 713, 715.


author: HOUSER, Commissioner.

text:
    Eugene R. DIENER, Appellant, v. MID-AMERICAN COACHES, INC., a Corporation, Respondent.
    No. 50224.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied May 11, 1964.

      Henry C. Stoll, Koenig, Dietz & Siebels, William L. Mason, Jr., St. Louis, for appellant.
    F. X. Cleary, Paul S. Brown, Moser, Marsalelc, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   HOUSER, Commissioner.

Eugene R. Diencr, a passenger on a bus owned and operated by Mid-American Coaches, Inc., brought an action against the bus company on the theory of res ipsa loquitur for damages for personal injuries sustained by him when the bus left the road and ran off an embankment. The bus company, admitting only that there was a collision and that plaintiff was a passenger on its bus, denied generally, and defended on the theory that the bus left the road because the braking and steering mechanisms of the bus became inoperative due to a collision between the bus and an oncoming automobile, as a result of the automobile crossing the center line and colliding with the bus in such close proximity that the bus driver could not avoid a collision. A jury returned a verdict for defendant, and plaintiff appealed. We have jurisdiction since the prayer of the petition was for $30,000.

Plaintiff, a fare-paying passenger, was riding on the bus at 2 a. m., proceeding west on Highway 66 near Pacific. The bus was traveling 40 miles an hour. The weather was cold and clear and the surface of the highway was dry concrete. An approaching eastbound Chevrolet driven by one McNamee moved from its proper position on the south side of the highway, over the center line, partially onto its wrong or north side, and into collision with the bus, which was on its right or north side of the highway. The collision occurred on a bridge. The bus driver testified that when the Chevrolet was the length of a car and a half from the bus it “pulled” from its proper lane “right into the bus.” According to him, the bus lights went out, and when the foot brakes were applied the pedal went to the floor, and had no effect on the forward movement of the bus. The steering mechanism was damaged. The driver tried to straighten out the bus by pulling on the steering wheel to the right but the bus did not respond. The bus proceeded 200 feet from point of impact, left the pavement and ran down an embankment off the traveled portion of the highway and was wrecked. The driver stayed at the controls, holding the steering wheel. He made no attempt to use the emergency brake although the lever actuating the emergency brake was within easy reach. There was no evidence that the emergency brake was damaged or affected by the collision. The emergency brake mechanism was not located in the area of the bus damaged by the collision.

McNamee died the same day without making a statement.

The first point for decision is whether the court erred in admitting expert testimony given by Dr. Eugene Tucker, a pathologist, whose duty it was to investigate deaths for the county coroner, to the effect that McNamce’s ability to drive was seriously and detrimentally affected by alcohol. Dr. Tucker drew blood out of McNamee’s heart after he expired, and had it tested in the laboratory. The test showed .35 grams of alcohol per one hundred millimeters of blood. The minimum percentage of alcohol which will render a person incapable of properly driving an automobile is .15 grams.

Plaintiff contends that this evidence was incompetent because obtained by the unlawful and criminal desecration of a dead body amounting to an unconstitutional search and seizure, conduct repugnant to common ideas of decency; that those who participated in this procedure were guilty of a crime, and the use of the data obtained was against public policy; that only evidence lawfully obtained may be adduced.

We are of the opinion that this contention cannot be sustained. “The courts do not concern themselves with the method by which a party has secured the evidence which he adduces in support of his contentions; and hence, in the absence of constitutional or statutory restrictions, evidence which is otherwise admissible will not be excluded because it has been obtained fraudulently, wrongfully, or illegally.” 31A C.J.S. Evidence, § 187; Plater v. W. C. Mullins Const. Co., 223 Mo.App. 650, 17 S.W.2d 658. There is an exception to this rule where the evidence has been obtained by a search and seizure in violation of the constitution, Plater v. W. C. Mullins Const. Co., supra, but this exception does not aid plaintiff. The guaranteed right is personal in nature, and plaintiff had no standing to complain or urge the constitutional question. State v. Green, Mo.Sup., 292 S.W.2d 283, 286. It was not plaintiff’s blood that was drawn but McNamee’s, and there is no showing of any relationship between plaintiff and McNamee which would entitle plaintiff to raise the question of a violation of constitutional guarantees enjoyed by McNamee. Nor need we determine the question if the interest sought to be protected is the right of privacy because “the right of privacy is a personal one which in the absence of statute, dies with the person to whom it is of value and cannot be claimed by his estate or next-of-kin,” Fretz v. Anderson, 5 Utah 2d 290, 300 P.2d 642, 646, or by a stranger. Nor can this plaintiff object to the evidence on the basis that it was obtained as a result of the desecration or mutilation of the body of McNamee. The two men were complete strangers, and plaintiff would have no right to assert the inviolability of the body, or to object to the findings of the pathologist as a result of the examination of a body in which plaintiff had no right or interest. There are other reasons why plaintiff is not in a position to raise this question. The contention assumes that Dr. Tucker did not have the consent of the next of kin to draw blood from Mc-Namee’s body, but this is not borne out by the record, which is silent on the question. Furthermore, no objection was made at the trial' on this ground when the evidence was offered, and this ground for exclusion of the evidence was not raised in plaintiff’s motion for new trial. Therefore the so-called constitutional point was not preserved at the earliest opportunity, as required.

Plaintiff further contends that the expert ■testimony was not admissible because the intoxication of McNamee was not in issue; that the issue of intoxication had not been raised in the pleadings; that proof of this issue was not necessary because there was sufficient other evidence to establish that the collision was caused by McNamee’s negligence; that the expert testimony was shown “cumulatively” and in bad faith for the sole purpose of creating sympathy for defendant and its driver and passion and prejudice against plaintiff.

Notwithstanding the issue of intoxication was not affirmatively raised by the pleadings, evidence of the fact that McNamee’s faculties were impaired by the use of alcohol was admissible under the general issue. 5A Am.Jur. Automobiles and Highway Traffic, § 942, p. 832; Boehm v. St. Louis Public Service Co., Mo.Sup., 368 S.W.2d 361, 371, 372. This evidence bore directly upon an important issue in the case, whether the bus driver' was negligent in colliding with the Chevrolet, thereby causing the mechanical systems of the bus to go awry, or whether the collision was caused by the negligence of another.

The transcript does not support plaintiff’s contention that the expert evidence as to McNamee’s intoxication was cumulative; or that defendant “already had plenty of evidence” that McNamee caused the collision; or that nobody denied that McNamee was on the wrong side of the road when he hit the bus; or that it was not necessary to show that he was drunk and that this evidence was offered in bad faith for the sole purpose of prejudicing the jury in favor of defendant and against plaintiff. The testimony of several of the witnesses was equivocal on the question of the position of McNamee’s automobile with reference to the center line. When the expert evidence was offered defendant had not then been freed of negligence in connection with the collision, nor had the negligence of McNamee been established. The bus driver had not yet testified. The manner in which McNamee’s automobile had been driven was still in dispute and McNamee’s intoxication and incapacity to drive was a fact still to be proved in support of defendant’s theory that the cause of the collision and the consequent running of the bus off the highway was McNamee’s intoxication and incapacity to drive with care. The expert evidence was not cumulative; and we do not find that it was offered in bad faith or to inject prejudice, but rather that it was offered in support of a legitimate defense.

The second point for decision is whether the court erred in giving Instruction No. 2, which submitted defendant’s theory of defense.

No. 1 directed a verdict for plaintiff upon a finding that "on the occasion described in the evidence” plaintiff was a fare-paying passenger on the bus; that when the bus reached a certain point it proceeded from the roadway onto the left or south side of the shoulder of the highway and. over the embankment, and that from all of the evidence in the case the defendant was negligent, unless the jury found from other facts that “the occurrence” was not due to negligence on the defendant’s part. .

No. 3 directed the jury with respect to the charge of negligence that if the Mc-Namee automobile crossed the center line into the westbound lane and collided with the bus and that negligence of the defendant concurred, combined and contributed with the action of McNamee and his vehicle to cause the plaintiff to sustain injury, plaintiff should have a verdict, because if defendant was negligent and defendant’s negligence contributed to cause the'injury, then defendant could not make use of Me-Namee’s concurring negligence to defeat plaintiff’s claim, even if defendant was less negligent than McNamee.

No. 2, the instruction challenged, directed a verdict for defendant upon a finding of these facts: that the bus was operating westwardly, keeping to the right of the center line; that McNamee was operating an automobile eastwardly; thát as it approached the bus the McNamee automobile crossed the center line, entered the west-boiind lane and came in contact with the left front corner of the bus, the McNamee automobile starting to 'its left toward the westbound lane when the bus was in such proximity that a collision was unavoidable ; that as a result of the collision the braking and steering mechanisms of the bus became inoperative “and that the bus started to its left and continued to its left and went off the highway, and if you further find and believe from the evidence that the defendant was not negligent on the occasion in question * * (Emphasis ours.)

Plaintiff contends that plaintiff pleaded, proved and by Instruction No. 1 submitted a res ipsa loquitur case founded upon an occurrence identified as the bus running off the highway but that defendant, not properly conversing No. 1 but creating a conflict therewith, by No. 2 submitted a different occurrence — -identified as the prior collision — and directed a verdict upon a finding that defendant was not negligent on said prior occasion; that the italicized words of No. 2 refer solely and only to the collision between the vehicles, and cannot be “tortured” by any proper use of language to refer to any other event than the collision, and that plaintiff’s res ipsa loquitur case was thereby left dangling. Plaintiff says that while No. 2 was apparently intended as a converse instruction, the only “passing reference” to the plaintiff’s case is contained in the words “and went off of the highway,” found near the end of the instruction.

As a matter of semantics we attribute a broader and more inclusive meaning to the term “occasion in question” than does plaintiff. Used in a verdict-directing instruction drawn to present the theory of the defense, the term “occasion in question” appears to us to have been used to express the concept of the occurrence of facts or the condition of affairs existing at the time and place in question. In the background of a sequence of different events (vehicles approaching from opposite directions; the automobile crossing over the center line and colliding with the bus; the guidance and stopping systems of the bus being rendered inoperative; the consequent unusual movement of the bus and its leaving the highway; the ensuing injury to an occupant) the most accurate and meaningful interpretation of the term “occasion in question” would be to apply it to the entire panorama of events, and not restrict it to one of them (the collision) to the exclusion of all others.

We therefore conclude that defendant's use of the term “the occasion in question” in No. 2, just as plaintiff used the term “the occasion described in evidence” and “the occurrence” in No. 1, did not refer solely and only to the collision but incorporated the events leading up to the collision, the collision itself, and the results of the collision, including the movement of the bus to the left and off the highway, over the embankment and the resultant wrecking of the bus.

Instructions Nos. 1 and 2 are not in conflict. Under these two instructions if the jury believed that the bus left the highway and went over the embankment and that the defendant was negligent, a verdict could be found for plaintiff, but if the jury believed that the cause of the bus leaving the highway was a collision which took place not because of defendant’s negligence but because of a third party’s negligence, and that defendant was not negligent, the verdict would be for defendant. Plaintiff’s res ipsa submission thus was not “left dangling,” as charged. The instructions fairly presented plaintiff’s case. With the added advantage of the favorable language of Instruction No. 3, plaintiff is not entitled to complain of the instructions.

Plaintiff’s cases of Thaller v. Skinner and Kennedy Co., Mo.App., 339 S.W.2d 487; Braun v. Hoffmeister, Mo.Sup., 366 S.W.2d 406 and Coit v. Bentz, Mo.Sup., 348 S.W.2d 941, examined, are found inapplicable to the solution of the question raised by this point.

Plaintiff further contends that the submission in Instruction No. 2 that the braking mechanism of the bus became inoperative is not supported by the evidence and is contrary to the evidence, because under the statutory requirement of “two sets of adequate brakes, kept in good working order,” § 304.S60, V.A.M.S., “braking mechanism” as used in No. 2 meant not only the foot brakes but also the emergency brake, which although readily available to the driver was not used by him; that there was no evidence that the emergency brakes were rendered inoperative or affected, by the collision, and the emergency brake could have been used while the bus traveled the 200 feet on the highway before it went over the embankment.

The bus driver testified that the bus was overhauled roughly two weeks before the accident and that the brakes were good on this particular night; that when the collision occurred the lights went out on the bus, the air went out and there were “No brakes”; that he put his foot upon the brake, “but there was none. It was all the way through the floor.” “Q. How do you know the brakes went out? A. I seen the car, I hit the brakes (snapping fingers), and [the brake pedal] went all the way to the floor.” The emergency brake does not work directly on the rear wheels, but applies to the drive shaft; through the drive shaft it affects the rear wheels, like private cars. The emergency brake “is just used as when you stop your bus you put on your emergency brake and keep it from rolling.” The driver testified that he made no attempt to use the emergency brake after the collision ; that all he did was to try to keep the bus from going over on the left side of the bridge railing — -it was heading that way- — • and that would have been a “forty foot drop.”

The submission that the braking mechanism of the bus became inoperative as a result of the collision is supported by the foregoing evidence. The question was negligence vel non. The negligence charged was not that defendant operated the bus with inadequate brakes but negligence under the res ipsa loquitur theory. The jury evidently found, as it had a right to find, that the unusual movement of the bus to the left, off the highway and over the embankment was not due to any negligence on the part of the bus driver. Under the evidence the jury could have found that the bus driver did his best to avoid leaving the highway by devoting his attention to his attempts to steer the bus so as to keep it on the highway and to stop by applying the foot-brake pedal, but that the foot brakes were rendered inoperative; and that the bus driver is to be excused for not having resorted to the emergency brake, because he was preoccupied with his attempts to keep the bus on the highway and avoid going through the bridge railing.

No error appearing, the judgment is affirmed.

COIL, C., concurs in result.

WELBORN, C., concurs.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Chief Justice. HYDE, Judge

text:
    DELTA AIR LINES, INC., a corporation, Respondent, v. MISSOURI STATE TAX COMMISSION, John A. Williams, J. Ralph Hutchison, and Howard L. Love, Members of the Missouri State Tax Commission, and J. R. Towson, Secretary of the Missouri State Tax Commission, Appellants.
    No. 49731.
    Supreme Court of Missouri, In Banc.
    May 11, 1964.
    Thomas F. Eagleton, Atty. Gen., Joseph Nessenfeld, Asst. Atty. Gen., Jefferson City, for appellants.
    Kerth, Thies & Schreiber, Alfred H. Kerth, Clayton, Thompson, Mitchell, Douglas & Neill, James M. Douglas, Richard P. Conerly, W. Stanley Walch, St. Louis, for respondent, Delta Air Lines, Inc.
    John R. Moberly, Douglas Stripp, George T. Morton, Jr., Kansas City (Watson, Ess, Marshall & Enggas, Kansas City, of counsel), for United Air Lines, Inc., amicus curiae.
   EAGER, Chief Justice.

Respondent, Delta Air Lines, Inc., filed its petition under § 536.100 for the review of a final order of the State Tax Commission fixing an ad valorem assessment upon its aircraft in the sum of $751,592. On review, the order was reversed and the cause remanded with directions to fix the assessment at $285,609. The assessment, made in 1960, was for the year 1959. The Commission, its members, and its Secretary appealed. We have jurisdiction because the appeal involves the construction of our revenue laws, specifically Chap. 155, being S.B. 179 of the Laws of 1959. The facts were stipulated for the purposes of the review.

Delta Air Lines, Inc. (which we shall refer to as Delta) is an air.carrier of both passengers and property operating interstate under appropriate federal authority; it also operates into certain foreign countries. It is a Louisiana corporation, duly registered in Missouri, with its principal place of business in Georgia. It operates over certificated routes in twenty states, including Missouri. During 1959, its aircraft made 12,160 arrivals and departures at the St. Louis airport (St. Louis County), 1,458 at the Kansas City airport, and 2,904 at the Springfield airport. As of January 1, 1960, it had 17 daily flights scheduled to or from St. Louis, 4 daily flights to or from Kansas City, and 4 to or from Springfield; its certificated route miles in Missouri were 385, as compared with 12,555 system-wide, the ratio being 3.0665%. During 1959, only 3 types of Delta’s planes were flown in Missouri on its scheduled flights, namely, Convair 340/440’s, Douglas DC-6’s, and Douglas DC-7’s. No craft of its other types entered Missouri. Of the three types flown in Missouri Delta owned and used 28 Con-vair 340/440’s, 7 Douglas DC-6’s, and 16 Douglas DC-7’s. The net depreciated cost of all planes of each of these 3 types as of January 1, 1960, and as determined by the Commission was, respectively, $7,478,-458, $1,494,957, and $15,539,144, aggregating $24,512,559. The 5 types not flown in Missouri during 1959 consisted of the following (the figures in parentheses show the Commission’s respective depreciated valuations) : 10 Douglas DC-3’s ($241,501); 4 Douglas DC-7 85-passenger coaches ($5,800,147); 6 Douglas DC-8’s ($25,489,489) ; 5 Curtiss-Wright C-46’s ($339,709) ; and 4 Lockheed L-049’s held in storage for sale ($1,049,502). The aggregate depreciated valuation fixed by the Commission on all of Delta’s aircraft was thus $57,432,907. The cost and depreciated values of the various individual planes varied widely because of differences in types and dates of purchase. The aggregate depreciated value of the 5 types of planes not flown in Missouri constituted slightly more than 57% of the valuation of all of Delta’s planes.

Of the 3 types flown in Missouri during 1959, the Convair 340/440’s flew 1,042,-006 miles in Missouri as compared to 15,800,275 everywhere; the Douglas DC-6’s, 163,968 as compared to 11,015,087; the Douglas DC-7’s, 75,688, as compared to 17,443,958. These figures aggregated are: 1,281,662 miles in Missouri and 44,259,320 miles everywhere. The other 4 types which were flown exclusively outside Missouri (omitting the Lockheeds) flew a total of 12,081,957 miles. Thus, the ratio of miles flown in Missouri to total miles flown was 2.2748%. The ratio of miles flown in Missouri to miles flown everywhere by the types operated in Missouri was 2.8958%. No figures were submitted as to the miles flown by individual planes, — hence there is and can be no objection to considering the miles flown by types. It has been agreed that the aircraft of any certain type were used interchangeably in performing a particular service. The approximate percentages of time spent in Missouri by the 3 types of planes flown there were as follows: Con-vair 340/440’s — 6.5949%; Douglas DC-6’s —1.4886%; Douglas DC-7’s — 0.4339%. Delta filed with the Commission its report giving all required information for the year 1959, including all of the foregoing and considerably more. Delta owned a total of 80 planes in 1959; 51 of these had flown in air commerce in Missouri; 4 had not flown anywhere; 25 had flown in air commerce exclusively outside of Missouri.

Section 155.040, which provides for the assessment of aircraft, is as follows: “1. The state tax commission shall assess, adjust and equalize the valuation of all aircraft operated in this state in air commerce by every airline company. The valuation apportioned to this state shall be the portion of the total valuation of the aircraft as determined by the state tax commission on the basis of the arithmetical average of the following two ratios:

“(1) The ratio which the certificated route miles of the airline company within the state bears to the total certificated route miles of the airline company;
“(2) The ratio which the miles flown by aircraft of the airline company within this state bears to the total miles flown by the aircraft of the airline company during the immediately preceding calendar year.
“2. In the event one ratio is inapplicable, then the apportionment shall be made on the basis of the remaining ratio alone.” Section 155.050 provides that the Commission shall apportion the valuation, as determined under § 155.040 to the various governmental subdivisions “in which the airline company has arrivals and departures.” Section 155.060, relied on in part by appellants, is (in so far as material here) as follows: “Taxes levied on all aircraft under this chapter shall be levied and collected in the manner provided for the taxation of-railroad property, and the county courts and other officials shall perform the same duties ,and may exercise the same powers in levying and collecting the taxes on aircraft as such officials are required to perform in the levy and collection of taxes on railroad property. * * * ”

Section 155.020 (the “reporting” section) requires that each airline company shall, on or before May 1st in each year, furnish to the Commission a sworn statement showing: “(1) The total length in this state of its certificated routes; (2) The total length of its certificated routes; (3) The total miles flown in this state by its aircraft during the next preceding calendar year; (4) The total miles flown by such aircraft during the next preceding calendar year; (5) The total number of all aircraft owned, used or leased by such airline company on the first day of January in each year, and the actual cash value thereof; (6) The other information the state tax commission requires to enable it to carry out the provisions of this chapter.”

The Commission fixed the amount of its assessment ($751,592) by first taking the total value (depreciated cost) of all of Delta’s aircraft, including those not operated in Missouri in 1959 and also including the 4 Lockheeds which had not been operated at all, a figure of $57,432,907; it then applied to that figure the average of the two ratios provided in § 155.040, the first ratio being 2.2748%, the second 3.0665%, and the average 2.6707%. The resulting figure was $1,533,860; it then deducted an equalizing factor of 49%, thus arriving at its final assessment figure of $751,592 as that part of the total valuation apportioned to Missouri.

The Circuit Court reversed the order of the Commission, with the direction that the assessment should be $285,609. Apparently this figure was arrived at through findings that only the value of those planes which were flown in Missouri should be considered, that a formula should be applied separately to each type of plane and the results added, and that in lieu of the averaged statutory formula of route miles and miles flown, the amount of the assessment should be computed by applying respective percentages based upon a ratio of the maximum time spent in Missouri by each type of plane to its total time spent elsewhere. The Court further found that the decision of the Commission was in exces.s of its statutory authority, was not supported by substantial and competent evidence, was not i authorized by law, was arbitrary and capricious, and was “in violation of provisions of the state and federal constitutions.” On appeal the case was heard here in Division One where the judgment was reversed and the decision and action of the Commission was in all things approved except that the Court eliminated from the Commission’s aggregate valuation the depreciated cost of the 4 Lockheed planes held in storage during 1959, a matter of $1,049,502; this would make a rather minor reduction in the total assessment. Upon a dissent, the cause was transferred to the Court in Banc and there reargued.

We state the basic contentions of the parties .here without specific reference to the points of their briefs. Appellants insist: that the Commission correctly considered and included the valuation of all Delta’s aircraft and correctly applied the statutory formula to such value, since this computation constituted only a fair apportionment to Missouri of its share of the unitary or integrated value of its aircraft operated in Missouri; that a correct interpretation of Chap. 155 of the statutes permits this; that nothing in the statutes requires an assessment of each type of aircraft separately, or “by-type,” nor an assessment by a formula based solely upon “time spent” in Missouri as compared with time spent elsewhere; and that Delta had failed to show that the assessment as made was so grossly excessive, unfair and unreasonable as to be invalid, constitutionally or otherwise. Delta contends that the statutes contemplate the apportionment to Missouri of a part of the total valuation of the aircraft oper-rated in Missouri; that the assessment as made by the Commission constituted such an arbitrary, grossly excessive and unreasonable apportionment of value to Missouri as to violate constitutional provisions for due process and the commerce clause of the federal constitution. As more or less subsidiary points, Delta also insists: that the only permissible mode of assessment under the statutes consists of the application of the proper formula separately to each type of aircraft, and that the only proper and. lawful standard of reasonableness is one based on the ratio of time spent in Missouri to’ the total time spent elsewhere, by those planes which actually operated in Missouri.

The initial and basic issue here is whether the Commission was authorized by Chap. 155 to apply the apportionment formula to the aggregate value of all aircraft of Delta (as it did) or whether it should have been applied only to the value of those “aircraft operated in this state in air commerce,” or, in other words, only to the aggregate value of those planes which were flown in Missouri during 1959. We have answered that question in considerable detail in an opinion recently adopted in Banc in the case of United Air Lines, Inc. v. State Tax Commission et al., Mo., 377 S.W.2d 444, and in a Per Curiam opinion modifying the original opinion in certain respects. We also discussed there in considerable detail the cited authorities, which accounts for the absence of such a discussion here. It was there determined, after a consideration of all the arguments now made pro and con, that Chap. 155 contemplates that the apportionment formula should be applied only to the valuation of the aircraft which were operated in Missouri in air commerce during 1959; was also held, and now adhere to both rulings, that there is no requirement in the statutes that the assessment be made separately “by-type,” nor is there any requirement that it be made in the aggregate. We repeat here, however, that it would not seem appropriate for the Commission to shift back and forth from one method to the other under differing circumstances, although we do not intimate that it has done or might do so.

The parties here agree that if the method of assessment approved in the United case is applied here the assessment would be $358,089. This, technically speaking, still leaves the contention of Delta that the only fair test of the reasonableness of an assessment is the ratio of time spent in Missouri to time spent elsewhere by the Missouri planes. These percentages, by types of planes, are stated above. We hardly deem it necessary to discuss here the factual and legal arguments made in support of that theory, for the reasons to be stated. The result of an assessment on that basis is said to approximate an assessment made solely on the second statutory ratio of miles flown within Missouri to the total miles flown everywhere. It is immediately noted that such a standard simply ignores the first statutory requirement, namely, the ratio which the certificated route miles in Missouri bears to the total certificated route miles everywhere, with which the “miles flown” ratio is to be averaged. We may not arbitrarily disregard one of the specified statutory ratios. Delta apparently urges this view, either on the theory (a), that the first ratio is “inapplicable,” § 155.040(2), or (b), because any other method results in an unreasonable and arbitrary assessment. There is no apparent reason why the first ratio would be inapplicable and we cannot ignore an integral part of the statutory provisions unless we declare them invalid as unconstitutional. The statutory ratio is certainly not “inapplicable” merely because it would increase the assessment somewhat. An example of “inapplicability” would lie in the taxation of noncertificated air-carriers. Delta has recognized in its brief that where assessments on a comparative mileage basis have been condemned, this has only been because of the excessive and unrealistic amounts assessed, citing, 57 Harvard Law Review, 1109, note. On the test of constitutionality we also note here, as we did in our Per Curiam in United, that such objections are only applicable where the method adopted and its result are “arbitrary, unfair, unreasonable, or confiscatory, as applied to the particular facts of the case,” citing Hans Rees’ Sons, Inc. v. North Carolina ex rel. Maxwell, 283 U.S. 123, 51 S.Ct. 385, 75 L.Ed. 879, and Norfolk & Western Ry. Co. v. North Carolina ex rel. Maxwell, 297 U.S. 682, 56 S.Ct. 625, 80 L.Ed. 977. Recognizing this, Delta says: “In taxing moveables used in interstate commerce such as railroad rolling stock and aircraft the various states may, in the absence of special circumstances, apportion part of the value of the entire fleet by using an apportionment formula based in whole or in part on system or route miles. When such an apportionment formula is utilized, however, the taxpayer has the right to prove the actual facts concerning the value of its property present and employed in the taxing state in order to demonstrate that the formula as applied to said taxpayer is unconstitutional.”

It is true that our conclusions here result in an increase of $72,480 over the assessment directed by the trial court ($285,609). That assessment figure was, in our view, arrived at under misconceptions as to the necessity of the by-type approach, the elimination of the route miles ratio and the finding that the maximum assessment legally permissible was $285,609. When we consider that the Commission was necessarily apportioning to the State of Missouri its fair share of taxation on aircraft concededly valued at $24,512,559 (Missouri planes only), we readily see that the difference is not such as to make the assessment arbitrary or unfair or one which, per se, attributes to Missouri values which exceed “the value of its aircraft * * * actually present in Missouri * * (Quoted from Delta’s brief in Banc.) Indeed, Delta substantially concedes this, as indicated by the further quotation from its brief in Banc, as follows: “On the other hand, if the statute is construed as Delta contends so that an ultimate assessment of either $326,965 (on a ‘by-type’ basis) or $358,089 (on a ‘lump sum’ basis) is sustained, then there is relatively little difference between the assessments based on the statutory formula and an assessment based on the value of Delta’s aircraft that were actually present in Missouri, and the Court may be able to conclude that the statutory formula as construed by Delta and the Dissenting Opinion can constitutionally be applied to Delta in this particular instance.” We are impelled to say that Delta’s situation here is somewhat analogous to that of the farmer who, after selling his hogs, said that he did not get as much for them as he expected, but that he didn’t really think he would. We find no constitutional restrictions upon an assessment of $358,089 and, in our view, that should be the amount. As in United, we do not reach any question of constitutional objections to the method used by the Commission in starting with a valuation of all of Delta’s aircraft, for we have construed the statute as providing that it may not do so. Constitutional questions are generally not decided where such a determination is unnecessary. State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75; City of St. Joseph v. Roller, Mo., 363 S.W.2d 609; Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484.

While we agree, generally, with paragraph 1 and in part with paragraph 5 of the Court’s findings, we do not concur in paragraphs 2, 3, or 4, nor in the amount fixed in the order and judgment. Under these circumstances, we reverse the judgment and remand the cause with directions to enter a new judgment in accordance with the views expressed in this opinion.

STORCKMAN, LEEDY, and DALTON, JJ., concur.

HYDE, J., dissents in separate opinion filed.

HOLMAN, J., dissents and concurs in dissenting opinion of HYDE, J.

HYDE, Judge

(dissenting).

I dissent in this case, and dissented in United Air Lines, Inc. v. State Tax Commission of Missouri, Banc, Mo., 377 S.W.2d 444, for the following reasons stated in the opinion of Houser, C., adopted in Division No. 1, before transfer to the Court en Banc, hereinafter set out without quotation marks. If the next session of the General Assembly desires to' clarify the statutes involved, it may be helpful for it to have these views as well as those stated in the principal opinion.

The basis of the decision of the Tax Commission is that in enacting new Chapter 155 the General Assembly has extended to commercial airline companies the unit method of assessment heretofore applied to the rolling stock of railroads. In the case of a railroad system operating in several states it has long been considered that the only practical method of assessing and collecting taxes upon that portion of the system lying within the taxing state is to make an assessment and valuation of the entire system, “as a homogeneous unit representing a single profit-earning business,” 51 Am.Jur. Taxation § 877, and then to assign a percentage of that total valuation to the taxing state, according to some fair and reasonable method of apportionment. 84 C.J.S. Taxation § 426 c. The courts have considered that the valuation of the rolling stock of railroads as a whole under the unit method of assessment and the apportionment of such value to the taxing state in the proportion the number of miles of railroad operated in the taxing state bears to the total mileage of lines in the entire system, is a proper and permissible method of arriving at an assessment of rolling stock, Pullman’s Palace Car Co. v. Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613; St. Louis Southwestern Ry. Co. v. State Tax Commission, Mo.Sup., 319 S.W.2d 559. Another approved apportionment basis is that of the average number of cars habitually employed within the state during' the tax year. American Refrigerator Transit Co. v. Hall, 174 U.S. 70, 19 S.Ct. 599, 43 L.Ed. 899; Johnson Oil Refining Co. v. Oklahoma, 290 U.S. 158, 54 S.Ct. 152, 78 L.Ed. 238. The unit method of assessment was approved as to inland water carriers in Ott v. Mississippi Valley Barge Line, 336 U.S. 169, 69 S.Ct. 432, 93 L.Ed. 585, and in 1954 this method was upheld in the nondomiciliary assessment of airplanes operating in interstate commerce. Braniff Airways v. Nebraska, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967. The theory of the unit method of assessment is that moving equipment has an augmented or enhanced value because of its connection with an integrated, operational whole and therefore may be taxed according to its value “as part of the system, although the other parts be outside the state; in other words, the tax may be made to cover the enhanced value which comes to the property in the state through its organic relation to the system.” Pullman Co. v. Richardson, 261 U.S. 330, 43 S.Ct. 366, 368, 67 L.Ed. 682.

Under the unit method of evaluating that portion of the property of an interstate carrier having a tax situs in a nondomicil-iary state the taxing authority first determines the value of the entire system as a whole, and then determines what percentage of that value is allocable to the taxing state. 51 Am.Jur. Taxation § 877 ; 84 C.J.S. Taxation § 426 c, p. 839. The valuation of the property of an interstate carrier in its entirety, as the basis for apportionment, has always been at the foundation of the unit method, or “rule of entirety” as it was originally denominated. Judson on Taxation, 2nd Ed., § 259. That this is what the General Assembly had in mind in enacting Chapter 155 is apparent from a consideration of its various provisions. In order for the State Tax Commission to determine the value of the entire system of an airline company the latter is required to report the “actual cash value” of “all aircraft owned, used or leased by such airline company on the first day of January in each year.” § 155.020(5). Section 155.040 provides the method by which this state’s share of that total valuation shall be apportioned. The prescribed formula incorporates the arithmetical average of two ratios. The first ratio relates to certificated route miles, and is ascertained by dividing the total certificated route miles everywhere in the entire Delta system by the certificated route miles of Delta within Missouri. The information as to total length of certificated routes everywhere and total length of certificated routes in this state is required to be furnished by the airlines. § 155.020(1) and (2). The second ratio relates to miles flown, and is ascertained by dividing the total miles flown by the aircraft of Delta everywhere in its entire system during the preceding year by the miles flown by Delta aircraft within this state during that period. The information as to total miles flown everywhere in the entire system and total miles flown in this state is required to be furnished by the airline companies. § 155.020(3) and (4).

There is nothing in § 155.040 to support the view that the words "the aircraft” occurring in the second sentence are limited to aircraft operated in this state, as contended by Delta. The second sentence does not undertake to apportion to this state a. portion of the valuation of the aircraft “operated in this state.” It apportions to Missouri a portion of “the total valuation of the aircraft.” What total valuation of what aircraft? Obviously, the total “actual cash value” of “all aircraft owned, used or leased by such airline company on the first day of January in each year,” information required to be furnished by § 155.020; information required to be in the files of the State Tax Commission at the time of the assessment. Significantly, the airline company is not required to give the Commission information as to the total valuation of all aircraft operated in this state; is not required to provide the basis for the calculation Delta would have the Commission make. It is reasonable to assume that if the General Assembly had intended that the calculation be based upon the valuation only of aircraft operated in this state the words “the aircraft” occurring in the second sentence of § 155.040 would have been so modified. If that had been intended, the total certificated route miles everywhere and total miles flown everywhere, as prescribed by the act passed, would not have been appropriate factors to take into consideration in determining the ratios; it would have been more appropriate for the ratios to have related total certificated routes in Missouri to total length of certificated routes here and elsewhere of airplanes entering and leaving Missouri, and total miles flown in this state to total miles flown here and elsewhere by airplanes entering and leaving Missouri. In other words, the fact that system-wide factors were incorporated in the formula supports the conclusion that a system-wide assessment was contemplated as the basis for the apportionment.

The first sentence of § 1S5.040, which defines and limits the subject of taxation to aircraft having a taxable situs in Missouri, is not inconsistent with this construction. Its language “all aircraft operated in this state” has no reference to the apportionment provisions of the second sentence. The first sentence serves merely to identify aircraft operated in this state as the subject of taxation, as distinguished from aircraft not operated in this state. It constitutes a legislative recognition of the rule that aircraft not operated in this state cannot constitutionally be subjected as such to direct ad valorem taxation. The words “the aircraft” in the second sentence do not refer to the words “all aircraft operated in this state” in the first sentence, under the doctrine of last antecedent. This rule is merely an aid to construction, and is not to be applied where a consideration of the entire act clearly requires the application to words more remote. State ex rel. St. Louis Public Service Co. v. Public Service Commission, 326 Mo. 1169, 34 S.W.2d 486; 82 C.J.S. Statutes § 334.

■' That the General Assembly had the railroad statute in mind in enacting Chapter 155 is evident by the provision of § 155.060 that taxes levied on aircraft under this chapter shall be levied and collected in the manner provided for the taxation of railroad property.

Considering the over-all objectives and purposes of Chapter 155 it seems clear that “the aircraft” occurring in the second sentence of § 155.040 relate and apply to the words “all aircraft owned, used or leased by such airline company” occurring in § 155.020(5). We conclude that Chapter 155, considered as a whole as well as section by section, reveals a clear intention that in assessing aircraft of interstate airline companies for ad valorem taxation the State Tax Commission shall make a total valuation of all of the aircraft of the company, wherever operated, as the basis for the allocation, under the unit method of assessment.

      . All statutory citations refer to RSMo 1959 and V.A.M.S., although the petition for review was actually filed pursuant to the 1949 statutes.

      . The Missouri statute directs the State Tax Commission to “assess, equalize and adjust only such proportion of the total value of all the rolling stock of such railroad company as the number of miles of such road in this state hears to the total length of the road as owned or controlled by such company.” § 151.060, (3).