author: CROSS, Judge.

text:
    Berniece Mary GUNNERSON, Plaintiff-Appellant, v. Rollins A. GUNNERSON, Defendant-Respondent.
    No. 23982.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.

      Hammond C. Woods, Kansas City, for .appellant.
    Ryan & Maitland, John P. Ryan, Carl A. Gangel, Kansas City, for respondent.
   CROSS, Judge.

In this action plaintiff sues her former husband to recover the sum of $4,954.28. Her demand is based on allegations charging defendant with breach of a property settlement agreement entered into by the parties prior to their divorce in 1957, in that he has failed to pay her support monies in accordance with that agreement. Trial was to the court without a jury and resulted in a judgment that plaintiff take nothing. Plaintiff has appealed.

Plaintiff and defendant were married in 1935 and lived together as husband and wife until certain disputes and differences led to their separation in the month of August, 1957. On October 22; 1957 plaintiff filed a suit for divorce against defendant. During pendency of that action and on November 16, 1957, the parties executed an instrument entitled “Property Settlement Agreement”, which reads as follows (omitting title, signatures and acknowledgments) :

“This Agreement, made and entered into this 16th day of November, 1957, by and between Berniece Mary Gunner-son, First Party, and Rollins A. Gunner-son, Second Party, both of Jackson County, Missouri.
“WITNESSETH, THAT:
“WHEREAS, the parties hereto are husband and wife, having been married on August 3, 1935, at Richmond, Missouri, and having lived together as husband and wife thereafter until sometime in August 1957, when a separation occurred because of certain irreconcilable disputes and differences, and
“WHEREAS, three children were born of said marriage between the first party and second party, namely: Rollins Joseph Gunnerson, age 21; Charles Richard Gunnerson, age 18; Eric Alan Gunnerson, age 9, and
“WHEREAS, first party has filed a suit for divorce against the second party, the same being Cause No. 602494, in the Circuit Court of Jackson County, Missouri, and that the same is now pending, and
“WHEREAS, the parties hereto w.ithout making any admissions as to the right of either party to secure a divorce and for the sole purpose of settling property rights between the parties hereto enter into this agreement and property settlement and stipulate and agree as follows:
“1. That the second party shall have as his sole and separate property the 1950 Cadillac, and the first party .relinquishes all of her interests therein.
“2. That first party shall have custody of the son Eric Alan Gunnerson, and second party shall have the right of reasonable visitation with said son Eric Alan.
“3. That first party shall have as her sole and separate property, all of the household furnishings now located in the home, and second party relinquishes all his interest therein.
“4. The second party shall pay the first party one-half of his yearly net income, as shown on his United States Income Tax Return as custody allowance and support and maintenance money; payable on a prorata basis on the 1st day and 15th day of each successive calendar month; final settlement of these payments to be made at the end of each calendar year on the basis of said United States Income Tax Return.
“5. That said custody allowance and support and maintenance money covered in paragraph 4, the preceding paragraph, shall in no case be less than $200.-00 per calendar month.
“6. That said payment to first party for her support and maintenance shall cease at any time said first party remarries.
“7. That said first party hereby releases, relinquishes, and surrenders any and all dower or right of dower and any and all right, title, interest and estate of any kind, character, or nature whatsoever, whether vested or contingent, which as wife of second party or because or by reason of or arising from or out of her marriage relation with second party, she has or at any time hereafter might have in or to or against or pertaining or relating to or concerning any real property or real property rights, which said second party now owns or shall own at any time hereafter or which is or at any time hereafter may or shall be or become vested in him
“8. All the provisions hereof are contractual and not merely recital, and this agreement shall be binding upon each of the parties, their heirs, legal representatives and assigns.”

Plaintiff’s suit for divorce was heard December 24, 1957, on her petition which contained a prayer for allowance of alimony and child support. Defendant was in default and made no appearance. At the hearing the “property settlement agreement” was not introduced in evidence, marked as an exhibit, or brought to the attention of the court in any manner. “The property settlement wasn’t mentioned at all”. Upon interrogation by her counsel, plaintiff told the court that her husband had agreed to pay her at least two hundred dollars a month for alimony and child support. Further testifying, she said she would like-for the court to enter a decree, “one hundred fifty dollars alimony and fifty dollars-child (support)”. At the conclusion of the hearing, the court granted plaintiff a decree of divorce incorporating orders that “defendant pay to plaintiff as support and-maintenance of said minor child, the sum of $50.00 per month, * * * until further order of this court and that in default of any one payment execution issue thereof”, and “that defendant pay to plaintiff as alimony the sum of $150.00 per month * * * until further order of this court and that in default of any one payment execution issue therefor”.

It appears from the record that from and after date of the divorce decree defendant has paid to plaintiff monthly alimony in the sum of $150.00 and child support in the amount of $50.00 per month, in accordance with the terms of the decree. The record further discloses that on September 6, 1961, plaintiff sued out execution and we are informed by defendant’s brief and by his counsel in oral argument that plaintiff instituted proceedings for garnishment of defendant’s wages. These statements stand without denial.

Plaintiff filed this suit on September 28, 1961. Her petition contained allegations to the effect that under the terms of the property settlement agreement defendant was obligated to pay her one-half of his net income for her maintenance and support of her child; that one-half of his income for the years 1957 through 1960 amounted to $12,814.59; and, that although defendant has paid her the sum of $200.00 per month adjudged her by the court as alimony and child support, there is still due her from defendant, for the stated years, the sum of $3,214.59, for which she prayed judgment. At the trial of this cause on June 25, 1963, plaintiff introduced the property settlement in evidence and enlarged her proof of defendant’s earnings to include evidence of his income for the years 1957 through 1962 which tended to show that her total entitlement, under her theory of the case, would be the sum of $4,954.28. Defendant offered no evidence. The court found in favor of defendant with the following comment, “Well, the court finds for the defendant for the reason that the property settlement was not mentioned or referred to in any way at the time of the divorce. The plaintiff asked that the sum of $150.00 a month be allowed for her and that $50.00 a month be allowed for the children (child) * * “ * * * and that execution issue therefor if not paid”. Judgment was rendered accordingly.

In a single appeal assignment plaintiff contends that the subject agreement was a valid contract which settled and adjusted all property rights growing out of the marriage, including her claim for alimony, support and maintenance. She insists that the judgment of the court awarding her the same allowance as the contract provided for was not a decree for statutory alimony, but instead amounts to no more than a judicial approval of the obligation imposed on defendant husband by the parties’ agreement. Therefore, she contends, she is entitled to enforce the contract and, in accordance therewith, recover from defendant the total sum of one-half his net yearly earnings for the stated years, with credit given for the monthly payments she has received from him pursuant to the court’s decree.

It is defendant’s position that the provisions of the property settlement agreement relating to support and maintenance were waived and abandoned by plaintiff, and superseded by the divorce decree which awarded her alimony and money for child support pursuant to statutory provision. Defendant says that the contract undertakings in question were merged into, abrogated and superseded by the court’s decree, and are not enforceable against him.

Thus the parties join issue upon the basic and essentially determinative question— whether the allowance of $150.00 per month adjudged to plaintiff in the divorce suit was in fact a decree of statutory alimony, or whether it amounted only to an approval of the separation agreement.

Under the law of this state two courses of action are available to a wife to secure support and maintenance from her husband in the event of a separation and divorce. Section 452.070 V.A.M.S. provides that when a divorce shall be adjudged, the court shall make such order touching the alimony and maintenanace of the wife, as, from the circumstances of the parties and the nature of the case, shall be reasonable. This same statute further authorizes “modification” of such order by providing that “[t]he court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper”.

Alternately, as sanctioned by settled law, a wife and her husband, in contemplation of a separation and divorce, “may, by valid contract between themselves, settle and adjust all property rights growing out of the marital relation, including the wife’s right of dower and claim for alimony, support, and maintenance”. Such contracts of separation are not unlawful in and of themselves, and are subject to be enforced the same as other contracts so long as they are fair, free from fraud, collusion or compulsion. North v. North, 339 Mo. 1226, 100 S.W.2d 582, 109 A.L.R. 1061. “Furthermore it is distinctly held that where a contract is lawfully entered into settling all the property rights of the respective parties, including the amount of the wife’s support and maintenance, the court in which the action for divorce is pending will not only have authority to approve the contract, but indeed will have no right to disregard it”. Alverson v. Alverson, Mo.App., 249 S.W.2d 472 (citing North v. North, supra; Edmondson v. Edmondson, Mo.App., 242 S.W.2d 730). And, although the court is authorized by statute to modify an award of alimony, it has no such authority to modify the legal contractual obligation which the husband assumes and agrees to pay his wife. North v. North, supra.

While the purpose both of statutory alimony and a voluntary agreement of the parties in lieu of such provision is, in each instance, to provide support for the wife, they are separate and distinct rights and are enforceable by distinctly different means. And, when a wife who has contracted with her husband for support submits her divorce action to the court, she must decide whether she will stand on her contract or take the court’s decree of alimony. She cannot have, and the court cannot give her both. They are not concurrent remedies — otherwise each could nullify the other.

That a wife will be held to her chosen course of action and elected remedy is aptly illustrated in Edmondson v. Edmondson, Mo.App., 242 S.W.2d 730. There the plaintiff wife entered into a property settlement with her husband obligating him to pay her $200.00 per month for her support and maintenance “so long as party of the first part, Betty Edmondson, may live”. In awarding the wife a decree of divorce the court included therein an order upon the defendant husband phrased in the identical language of the contract, to pay her the sum of $200.00 for her support and maintenance “for the rest of her natural life”. The decree further recited: “In entering this decree the court expressly adopts, ratifies and confirms a certain property settlement which has been entered into and signed by the plaintiff and defendant”. Defendant defaulted in payment of the monthly sums agreed upon and filed a petition in bankruptcy. Listed in his schedule of liabilities was the contract obligation to his wife, who was notified as a creditor. Subsequently, he was discharged and plaintiff’s claim on the contract liability was extinguished. Meanwhile, plaintiff wife had taken the position that the court decree was a judgment for alimony — not merely an affirmance of the parties’ contract — and undertook to satisfy it as such by securing issuance of executions thereon and effecting garnishment of defendant’s wages. Upon defendant’s motion the trial court quashed the executions. Affirming the trial court’s action, this court observed that except for the property settlement of the parties, which had been approved and adopted by the trial court, the effect of which was to make provision in lieu of alimony, plaintiff would have been entitled to a judgment of alimony, subject to modification. However, we held that, since there was a valid and conclusive agreement covering the subject, the trial court had no authority, without consent of the parties, to enter a judgment for statutory alimony. We further noted that the trial court had no authority to render an alimony judgment that might extend beyond the life of the husband. It was our conclusion that the liability of the husband for the installment payments for plaintiff’s support arose solely by reason of the property agreement, and that the language of the decree purporting to order such payments had no force and effect as a decree for statutory alimony. Therefore, we ruled, the executions in question were improvidently issued, were without force and effect and were properly quashed.

While there is no precise formula for determining whether a judgment in a divorce action amounts only to an affirmance of the parties’ contract or is in fact a decree for statutory alimony, courts in deciding the question have taken into account and have enumerated several factors of significance.

In North v. North, supra, the court was influenced by two determinates in holding that the decree under consideration was merely an approval of a contract and not an award of statutory alimony: (1) that the written agreement served to settle “all” their property rights; (2) that the allowance to the wife was one which the court had no authority to give her as statutory alimony.

In deciding Alverson v. Alverson, supra, where the judgment was held to be for statutory alimony and not to be an affirmance of the parties’ contract, the court listed these considerations (among others), as affecting their conclusion: that the issue of alimony had been raised by the pleadings ; that the allowance to the wife was one which the court was legally authorized to give her as statutory alimony, in the absence of any agreement; the fact that the instrument in question was designated, not a “contract”, but a “stipulation”, which is a term used to describe an agreement respecting a matter before a court; that there was no settlement of “all” the property rights of the parties, since the agreement went no further than to release certain special obligations; the employment by the court of the language “as and for alimony” ; and, the fact that the decree provided for execution in event of default, in respect of which the court said: “Furthermore the court was not content with merely ordering that payments be made ‘as and for alimony’, but what is more conclusive of its intention to enter a decree for statutory alimony is the fact that it then went on to provide, without objection from the parties, that in default of the payment of any of the installments, ‘execution issue therefor’ ”.

In Wesson v. Wesson, Mo.App., 271 S.W.2d 214, the court in deciding the instant question stated that no single factor was controlling, but that the property settlement as a whole, the circumstances under which it was made, the nature and value of the property to be divided, and the language of the decree were to be considered. The court laid stress upon the fact that the “plaintiff sought and the court issued an execution upon the judgment to enforce payment of the obligation”.

And, in Aronberg v. Aronberg, Mo.App., 316 S.W.2d 675, the court ruled that a property settlement contract does not become “a part of the judgment of the court until the court examines the entire contract and ratifies or approves it”. To the same effect is the holding of this court in Moser v. Moser, 235 Mo.App. 784, 148 S.W.2d 71, where a divorced husband’s motion to modify a decree of alimony was resisted by his former wife on the ground that the judgment was only an affirmance of a contract. In view of the fact that no stipulation or writing concerning a property settlement had been introduced in evidence at the divorce trial, or filed with the court, or shown to the court, in our opinion we said, “Under such circumstances, we do not see how it could be said that the court in entering the judgment was approving a property settlement between the parties in accordance with a definite and specific contract which they had entered into”.

Having considered the facts of this case in the light of the foregoing rules of Missouri courts it can not be our decision that the judgment in question was intended to be, or is, merely an approval or adoption of the written instrument plaintiff now exhibits in this cause. It is fundamental that the judgment of a court is the highest authority and represents the final decision on all matters in a particular controversy. The judgment in this case by its very terms is clearly and unmistakably a decree awarding plaintiff statutory alimony, and it must be upheld as such unless it convincingly appears that plaintiff (who alone was the moving party before the court) did not seek and the court did not intend to render a judgment for alimony.

Every act of plaintiff in her suit for divorce indicates that it was her desire and intention to obtain a judgment for alimony and not to secure judicial approval of a contract. She prayed for alimony in her petition. At the trial she specifically asked the court for an alimony allowance in an amount that appeared to the court as reasonable in the light of the evidence. A judgment for alimony was entered in accordance with her formal prayer, her proof and her spoken request, granting to her the further right of its enforcement by execution. For four years she has accepted the allowance adjudged to her by the court. She has further recognized the judgment and utilized its provisions by exercising the right of execution contained within it. “When plaintiff applied for the issuance of an execution she was taking the position that she had a judgment for the amount of the allowance. That position is wholly inconsistent with the position she must necessarily take on this appeal, namely, that the judgment constituted nothing more than a judicial approval of a contractual obligation”. Wesson v. Wesson, supra, 271 S.W.2d 1. c. 217.

The fact that plaintiff told the court her husband had “agreed” to pay her at least two hundred dollars a month for alimony and child support does not aid her appeal contention. That statement in and of itself is further proof that she desired the court to grant her alimony — not to approve a written document — otherwise she would have divulged it to the court. In this connection, we note that the reason assigned by the trial court for its action in this case is alone sufficient reason for this court to affirm the judgment. We refer to the following statement made by the trial judge: “Well, the court finds for the defendant for the reason that the property settlement was not mentioned or referred to in any way at the time of the divorce. The plaintiff asked that the sum of $150.00 a month be allowed for her and that $50.00 a month be allowed for the children (child) ”. Under authority of Moser v. Moser, supra, and Aronberg v. Aronberg, supra, it must be held that a court of law has not approved or incorporated in its judgment a written instrument it has never seen or known to exist.

Plaintiff here has sought and the court has rendered a money judgment in her favor against the person of defendant. Thereby any right plaintiff may have had under her agreement with defendant to pay support money became extinguished and merged into the judgment. “Where the plaintiff has obtained a valid and final personal judgment against the defendant for the payment of money, the original claim is extinguished and is merged in the judgment. If the plaintiff thereafter brings an action on the original cause of action, the defendant can set up the judgment as a defense”. Restatement of the Law, Judgments, Chapter 3, Section 47, page 182.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: MAUGHMER, Commissioner. PER CURIAM:

license: Public Domain

text:
    Minerva APPLEBURY, Plaintiff-Appellant, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Defendant-Respondent.
    No. 23915.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.

      Ben E. Pener, Harry D. Pener, Clancy D. Tull, Kansas City, for appellant.
    William H. Woodson, Kansas City, Spencer, Fane, Britt & Browne, Kansas City, of counsel, for respondent.
   MAUGHMER, Commissioner.

This is a suit by Minerva Applebury, grandmother of Charles F. Schwaneke, to collect the $2500 double indemnity benefit for death by accidental means as provided in a life insurance policy on his life issued by defendant John Hancock Mutual Life Insurance Company.

The parties stipulated in open court that: Charles F. Schwaneke, the insured, died in an automobile collision at the intersection of 27th and Spruce Streets, Kansas City, Missouri, at about 1:20 a. m. on July 14, 1959. At the time of his death a life insurance policy issued by defendant providing payment of $2500 for death by accidental means was in full force and effect; the plaintiff, Minerva Appiebury, was the designated beneficiary therein and proof of loss has been made.

In addition to the stipulation, oral testimony by both plaintiff and defendant was received. The cause was submitted and the jury returned a verdict for defendant. Plaintiff prosecutes this appeal.

At about 1:00 a. m. on the morning of July 14, 1959, Charles F. Schwaneke, the insured, alone in his red and while Buick automobile, was driving in an easterly direction on Pershing Road near Main Street, in Kansas City, Missouri. Officer Austin of the Kansas City Police was in the vicinity in a police cruiser automobile. Austin saw Schwaneke skid his wheels for about 10 feet at the intersection and then proceed east on Pershing Road at 60 to 65 miles per hour. The lawful speed for the time and place was 25 miles per hour. Austin said the Buick “then made an approximately 45 degree left turn to Cherry, proceeded south on Cherry to 28th Street at speeds of approximately 60 miles per hour and then made a left turn on 28th Street”. At this time Austin, by radio, called for another officer to assist and said he was going to stop the Buick. The police dispatcher was also notified. At 27th and Harrison, Officer Austin, with his red light on and siren sounding, attempted to stop Schwaneke, who pulled to the right and slowed, but did not stop. Then said Austin “He shot past me to my right and at excessive speed and I pursued * * *. We proceeded east bound on 27th Street to Paseo * * *. We had reached speeds between 80 and 90 miles an hour”. Other officers unsuccessfully attempted to set up a road block at 27th and Indiana. Austin said he had his red light on and siren going from 27th and Harrison on; that he was traveling from 80 to 90 miles per hour but lost ground to the Buick.

Officer Hill, Kansas City Police, was on midnight shift in the accident investigation car and was cruising in the vicinity of 27th and Indiana when he “overheard this car chase on the radio”. Hill and another officer set up a partial road block but the Buick went through, traveling from 70 to 80 miles per hour. These officers took up the chase, moving 80 to 90 miles per hour, but did not catch up with Schwaneke.

The chase ended suddenly and violently at the intersection of 27th and Spruce Streets. It had covered some 46 blocks, or approximately five miles. Anthony Ra-gusa owns and operates Palace Liquors at 27th and Benton. He was getting ready to close when he heard the Buick pass and later heard the crash and collision. He estimated the Buick’s speed at 90 to 100 miles per hour. Marion Robertson was night operator of a service station at 27th and Spruce. He said that shortly after 1:00 a. m. a Chevrolet automobile pulled up to the gas pump. There were three boys or young men in the car. They bought $2 worth of gas. They drank some beer. Robertson said these people remained in the service station about 15 minutes and then got into the Chevrolet and drove into the intersection slowly at a speed of only a few miles per hour. Their car was hit almost head-on by Schwaneke’s Buick coming down 27th Street. Robertson estimated he was only about 20 feet from the point of collision. Schwaneke and the three occupants of the Chevrolet were killed.

As her case in chief, plaintiff presented only proof that the insurance was in force, she was the beneficiary, the insured died in the automobile collision and defendant had refused payment. This made a prima face case of death by accidental means. Sellars v. John Hancock Mut. Life Ins. Co., Mo.App., 149 S.W.2d 404, 405; Ward v. Penn Mutual Life Ins. Co., Mo.App., 352 S.W.2d 413, 419. However, the showing of violent death while sufficient to make a prima facie case is not evidence of the presumed fact, but only a rebuttable legal presumption which procedurally shifted the burden of going forward to the defendant. Ward v. Penn Mutual Life Ins. Co., supra. The burden of proof to establish each and every essential element of her cause of action rests upon plaintiff and so remains until the end of the case. Caldwell v. Travelers Ins. Co., 305 Mo. 619, 267 S.W. 907, 39 A.L.R. 56; Gennari v. Prudential Ins. Co., Mo., 335 S.W.2d 55, 60.

We set out the particular insuring clauses respecting the additional benefit for death by accidental means with which we are concerned in this case. The company contracted to pay if “the death of the Insured was caused directly and independently of all other causes, by a bodily injury sustained solely by external, violent and accidental means * * * ”. “The company shall not be liable * * * (3) if such death results, directly or indirectly, or wholly or partially, * * * (iv) from committing an assault or felony”. There is no specific exception in the policy exempting the company from liability if the death was the result of voluntary and wanton exposure to unnecessary and known danger.

At the outset we must understand that “means” as used in the policy is equivalent to “cause”. Callahan v. Connecticut General Life Ins. Co., 357 Mo. 187, 207 S.W.2d 279, 283; Ward v. Penn Mutual Life Ins. Co., supra, 352 S.W.2d 1. c. 420.

It is plaintiff’s position that the insured’s death resulted from the automobile collision (which is conceded), that the collision was an accident, the death was caused by “accidental means” within the terms of the policy, and therefore defendant is liable. Defendant, while admitting the collision was the final occurrence which resulted in the death of the insured and three others, denies that the death was caused by “accidental means” within the meaning of the policy and within the meaning of that phrase as it has been defined by the appellate courts.

Defendant denied liability on three specific grounds: (First) the insured at the time of his death was in the commission of an assault upon the three persons in the Chevrolet who were killed and this being so, the company is by specific written exception exempted from liability; (Second) the insured was at the time guilty of and had committed a felony, namely, manslaughter — also a specified exemption, and (Third) Schwaneke died as a direct and proximate result of voluntarily and wantonly exposing himself to unnecessary and known danger and therefore his death did not result from “accidental means”.

There are two lines of decisions with respect to “accidental means” being distinguishable from “accident” or “accidental death”. One group holds the terms to be legally synonymous and makes no distinction. The other group distinguishes between cause and effect and recognizes that even though an injury (result) may be unexpected, unforeseen or even unusual, it does not occur (cause) by accidental means if the means causing the injury has been employed by the insured voluntarily in the usual and expected way. Caldwell v. Travelers Ins. Co., 305 Mo. 619, 267 S.W. 907, 921, 39 A.L.R. 56; Ward v. Penn Mutual Life Ins. Co., supra, 352 S.W.2d 1. c. 420. In 45 C.J.S. Insurance § 753b, pages 779, 780, it is defined or explained this way: “ * * * if the death or injury, although unforeseen or unexpected, results directly from insured’s voluntary act, unaccompanied by anything unexpected, unusual, or unforeseen, it is not death or injury by accidental means, although the result may be such as to constitute an accidental injury”. Missouri decisions are in accord with the second group.

Our appellate courts have held that death occasioned by sunstroke, constitutes death from external, violent and accidental means. Other jurisdictions have approved recoveries where “Insured, walking home from work in 20 degrees below zero weather, stopped at his daughter’s home and died within a few minutes”. Commonwealth Casualty Co. of Philadelphia v. Wheeler, 13 Ohio App. 140, 148. Insured alighted from street car at wrong stop in very cold weather and was found a short distance from home the next morning frozen to death. Wills v. Midland Nat. Life Ins. Co., 108 Mont. 536, 91 P.2d 695, 698. An automobile broke down and insured froze to death while walking in sub-zero weather. Federal Life Ins. Co. v. White (Texas Civ.App.) 23 S.W.2d 832.

However, in Inter-Ocean Casualty Co. v. Foster, 226 Ala. 348, 147 So. 127, 129, 130, Insured’s automobile gave out of gas on the road and to protect it against theft he stayed with it for three days and nights in severe Alabama weather, freezing his feet, from which death ensued. Recovery was denied because deceased voluntarily exposed himself to the cold in circumstances which reasonable and ordinary prudence would pronounce dangerous. The court said: “ * * * freezing is not of itself an accident, but becomes so only when ‘joined with a fortuitous, unusual, unexpected circumstance or event’, which operating upon the cold weather as a condition produces the result as a proximate consequence of such fortuitous circumstances”. There are many reported cases where recovery was denied on the theory that an intoxicated person is held to intend the probable and natural consequences of his acts.

We are cognizant of the rule that wherever an insurance contract is open to different constructions, that most favorable to insured must be adopted. We think that rule is of little help to the plaintiff here. Counsel for appellant also cites Appleman Insurance Law & Practice, Sec. 531, as follows: “In the absence of any relevant policy exclusion, the law is that the voluntary exposure of the insured to danger or his failure to exercise diligence in avoiding perils does not affect the right to recover under a policy”. This statement refers to the ordinary policy of life insurance and not where “accidental means” is involved.

We shall briefly summarize the facts and results in three Missouri cases. In Callahan v. Connecticut General Life Ins. Co., 207 S.W.2d 279, the insured intentionally stayed in his stalled automobile in sub-freezing weather for 24 hours, suffered frozen feet and died of tetanus. The Supreme Court opinion stated that insured violated no law when he remained in his automobile, called attention to the testimony that there was not any “particular danger” in just sitting in the car with the temperature in the twenties, and ruled the issue in this case and under these facts was for the jury.

In Gennari v. Prudential Ins. Co of America, supra, 335 S.W.2d 55, insured was a pastry cook and part-time carver of ice table decorations. He was commissioned to prepare ice-carvings for a country club and entered a walk-in icebox to do the work. The temperature inside the icebox ranged from 31 to 34 degrees. Outside it was 102 degrees. He worked for more than an hour, suddenly put down his hammer and chisel and left the refrigerator. He took about twelve steps and staggered. He was taken to a hospital, had a temperature of 101, which rose to 105.4 by midnight. He died 10j4 hours after coming out of the icebox. This case is not precisely in point because the company contended that the death was occasioned by disease (cerebral hemorrhage due to cardiovascular disease) and that the heat or sudden switch from cold to hot played no part in the death. However, the court specifically ruled the burden was on plaintiff to prove the death' resulted from accidental means, that the defense of death from cerebral hemorrhage was not an affirmative defense but rather “an assertion that he did not die of accidental means”. (1. c. 61). The verdict in tile Gennari case was for the defendant. The Supreme Court ordered a new trial (4 to 3 decision) because of two erroneous instructions.

The opinion of the Springfield Court of Appeals in Ward v. Penn Mutual Life Ins. Co., supra, 352 S.W.2d 413, reviews almost the whole field of this type of litigation. There the insured and his companions had visited and imbibed at several taverns. When they left the last one insured insisted upon riding spread-eagle and flat on top of the automobile which one of his companions would be driving. Insured was young, strong, over six feet tall and had ridden on top of automobiles before without suffering injury. The driver started off with insured riding on top. He fell off and was found lying in the road dead. The car occupants did not see, hear or know he had fallen. There was no evidence that either insured or the driver was intoxicated. It was the defendant’s contention that insured’s death was a direct and proximate result of voluntary and wanton exposure to unnecessary and known danger, so that his death was neither unusual nor unexpected, but was the natural and probable consequence of such voluntary act. The court ruled here, too, that this was not an affirmative defense which placed the burden on defendant, but rather was simply a disavowal that insured’s death had resulted from accidental means. The trial court instructed the jury that if insured’s death was a direct and proximate result of “his voluntary and wanton exposure to unnecessary and known danger because of (describing his act of riding spread-eagled) his death was neither unusual nor unexpected and was the natural and probable consequence of said voluntary acts”. At page 420 of the opinion the court said:

“If defendant had adduced positive, clear and certain evidence, in no material respect self-impeaching, which plainly revealed the circumstances under which insured had been injured, convincingly showed that such injury was not by accidental means, and fairly afforded no reasonable basis for a contrary conclusion, numerous reported cases in this jurisdiction demonstrate that a verdict for defendant properly might have been directed * * *

In the Ward case the verdict was for plaintiff and the appellate court in view of insured’s having ridden spread-eagle before, in the face of testimony that others had done so, refused to hold as a matter of law that the death was not by accidental means, and therefore refused to order a directed verdict for defendant, but rather affirmed the judgment.

Now as to our particular case. Plaintiff insists that defendant’s given Instruction No. 3, directing the jury to find for defendant if the insured “died as a direct and proximate result of voluntarily and wantonly exposing himself to unnecessary and known danger”, amounted to reversible error. She contends (1) It submits an affirmative defense; (2) It submits a defense which is improper unless the policy itself contains a specific exception thereof, and (3) It is a clear misstatement of the law. It should be here noted that this Instruction No. 3 is almost identical with the instruction which we have referred to and which was approved in Ward v. Penn Mutual Life Ins. Co., supra. We incorporate Instruction No. 3 in this opinion:

“The Court instructs the jury that the burden is on plaintiff to prove by a preponderance or the greater weight of the credible evidence that the death of Charles F. Schwaneke was caused directly by a bodily injury sustained by accidental means.
“The Court further instructs the jury that if you find and believe from the credible evidence that immediately before his death at about 1:30 a. m. on July 14, 1959, as a result of the collision mentioned in the evidence on 27th Street near its intersection with Spruce Street in this city, Charles F. Schwan-eke was driving a motor vehicle east on 27th Street at a rate of speed in eccess of 60 miles per hour and you further find and believe that Charles F. Schwaneke while then and there operating the automobile at such a rate of speed, if you so find, reasonably should have anticipated and foreseen, as a natural and probable consequence thereof that he was likely to sustain bodily injury or death, and that Charles F. Schwaneke died as a direct and proximate result of voluntarily and wantonly exposing himself to unnecessary and known danger, by operating the motor vehicle at such speed, if you so find, then, the death of Charles F. Schwaneke did not result from accidental means and your verdict should be for defendant and against plaintiff”.

The opinions and conclusions in the cases reviewed hereinabove demonstrate that plaintiff’s objections are not well taken. The defense presented by Instruction No. 3 is not an affirmative defense, which shifts the burden of proof, it is not one which is unavailable absent a specific policy exclusion and it does not misstate the law. In this connection we shall make reference to plaintiff’s Instruction No. 1, which was prepared and offered by plaintiff, and which the court gave. This instruction, after requiring a finding of the formal essential elements, closed with the prerequisite conditions which must be met before plaintiff could have the verdict. We quote the last part of plaintiff’s Instruction No. 1:

“ * * * and if you further find and believe from the evidence that the death of deceased by accidental means did not result directly or indirectly, or wholly or partially, from committing an assault or a felony, nor as the direct, proximate, natural, probable and foreseeable result or,consequence of his own acts in operating said automobile in a careless, negligent, willful, wanton and unlawful manner, if you so find; then the Court instructs the jury that you will return a verdict in favor of the plaintiff and against the defendant”.

This quoted part of Instruction No. 1 might be said to be almost the converse of defendant’s Instruction No. 3, and vice-versa. Plaintiff’s Instruction No. 1 recognizes and instructs on the defense of voluntary and wanton exposure to unnecessary- and known danger. It is difficult, we think,, for plaintiff to predicate error on defendant’s instruction which varies but little, i£ any, from his own, as to the law declared and the factual findings required as a verdict basis.

During its deliberations the jury put some questions to the court. The court responded: “You are bound by the instructions”. There was no error or abuse of discretion in this respect and appellant’s second assignment is overruled.

Defendant’s three separate defenses were submitted in three separate instructions. Each instruction first hypothesized the insured’s speed as in excess of 60 mile per hour and then presented its defense of (1) assault, (2) felony, and (3) voluntary exposure to known danger. We believe defendant had the right to submit these three defenses separately and the court did not err in so instructing. Appellant’s contention that the mentioning of “speed in excess of 60 miles per hour” overemphasized the question of speed is particularly untenable in this case where the speed was not only overwhelmingly proved, but actually exceeded 60 miles per hour during most of the chase. The assignment is denied.

If this case had come up on appeal from a verdict for plaintiff and we were asked to declare as a matter of law that plaintiff is not entitled to recover, a more difficult question would be presented. However, we believe that of all cases reviewed in this opinion this is one of the strongest for the defense. Here there can be no doubt but that insured was in violation of the law for some minutes before the crash. This element is absent in most of the cases. The evidence is very persuasive that insured was guilty of assault and manslaughter. This feature is usually absent in such cases. And, finally, driving an automobile along city streets and intersections, even late at night and knowingly running from the police is, we think, a voluntary and wanton exposure to danger.

We need not determine if plaintiff failed to make a submissible case as a matter of law. The jury returned a verdict for defendant. That verdict is supported by substantial, credible evidence. We find no reversible error.

The judgment is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


author: SPERRY, Commissioner. PER CURIAM.

text:
    Eugene B. ROBICHAUX, Administrator of the Estate of Clara B. Bissell, Plaintiff-Appellant, v. GROUP HOSPITAL SERVICE, INC., OF KANSAS CITY, Defendant-Respondent.
    No. 23973.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.
    Thaine Q. Blumer, Blumer & Wright, Kansas City, for appellant.
    Max O. Bagby, Harry L. Thomas, Kansas City, for respondent.
   SPERRY, Commissioner.

This suit was filed by the administrator of the estate of Mrs. Clara Bissell, deceased, against defendant Corporation, commonly known as “Blue Cross”. Plaintiff seeks recovery of $979.55, paid to the Excelsior Springs (Mo.) Hospital, hereafter referred to as hospital, for services rendered deceased and for which it is claimed defendant should have paid under the terms of its “agreement” issued to deceased. Trial was to the Court. Judgment was for defendant and plaintiff appeals.

Defendant offered no evidence. The facts are that plaintiff was the grandson of deceased; that he was also her physician; that deceased entered the hospital, as a regular patient, in 1955, for an “acute” illness; that, after a time, she was transferred from regular service, rendered to patients suffering from an “acute” illness, to a nursing service, rendered to “chronic” patients, under a special contract between plaintiff and the hospital, whereby the agreed charge for the service was $300.00 per month; that the hospital maintained two separate services, one for those acutely ill and one for those requiring nursing care only; that, from that time until the date of her death, March 30, 1960, she was never discharged from the hospital, never left it except for a few hours; that she was, from time to time transferred, on the books of the hospital, from “acute” to “chronic”, and from “chronic” to “acute”. Plaintiff alleged deceased was transferred to “acute” on January 1, 1958, where she remained until March 30, 1958; that she was again transferred to “acute” August 1, 1958 and remained there until October 20, 1958; that she was transferred to “acute” care March 13, 1959, and transferred to “chronic” May 22, 1959. This suit is based on the last mentioned period, for hospitalization services rendered to deceased while under “acute” care.

There was in evidence an instrument titled “Standard Membership Agreement”, in which was set forth the terms of the contract between deceased and defendant. Under section 2 of “Terms and Conditions of the Agreement.Hospital Services and Benefits”, there appears the following: s}c sjs % s|s

“1. IN-PATIENTS: A member, when confined in a member hospital for necessary bed-patient care, other than routine nursery care of the newborn, is entitled to the following:
“a. NUMBER OF DAYS OF SERVICE: Each member shall be entitled to a maximum period of 70 days of care in member hospitals at full benefits for each continuous period of hospital confinement, or for successive periods of hospital confinement separated by less than 90 days. Such member will again be entitled to like benefit periods only when there has been a lapse of at least 90 days between the date of last discharge from any hospital and the date of next admission”. (Emphasis ours.)

It was not contended below, nor is it contended in the brief filed here, that the above contract, or agreement, existing between defendant and deceased, is ambiguous. That portion of the agreement above quoted defines the terms, conditions, and limitations under which a member may receive hospital benefits. It provides that a member shall, upon being regularly admitted, be entitled, (1), to receive a total of 70 days of care, either in one continuous period or in separate periods, separated bv less than 90 days and, (2), will again be entitled to receive like benefit periods only when there has been a lapse of at least 90 days between the date of last discharge from any hospital and the date of next admission. In construing this contract between the parties, we will determine the intention of the parties from the language used therein, giving such language its plain, usual and ordinary meaning. Liberty Storage Company v. Kansas City Terminal Warehouse Company, Mo.App., 340 S.W.2d 189, 192, 193. The Court cannot alter a contract by construction but must give it the meaning expressed therein, as gathered from the entire instrument. Home Trust Company v. Shapiro, 228 Mo.App. 266, 64 S.W.2d 717-727.

In this case, the undisputed facts are that deceased entered the hospital in 1955 and was never, thereafter, discharged therefrom. Defendant paid for benefits mentioned in plaintiff’s petition except those received by deceased during the period here involved. She was occasionally transferred from one room to another, but she was never discharged prior ’to her death in 1960. After having received benefits for 70 days in any one 90 day period it is plain, from the language used that she was not «entitled to any further benefits until 90 «days after her discharge from any hospital. She was never discharged from the Excelsior Springs Hospital. She was not entitled to the benefits for which plaintiff seeks to have her estate reimbursed.

Plaintiff contends that, since deceased ■entered the hospital under its “rules and regulations”, and since the hospital regularly provided two types of care, as heretofore indicated, such practice would have the effect of modifying the stated terms of the contract. We think not. It was not shown that defendant knew or approved of said practice or consented and agreed to be bound thereby. It was bound only by the clearly stated terms of its “agreement”.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the Court. All concur.


text:
    The J. R. WATKINS COMPANY, Appellant, v. H. D. HALL and James Welsh, Respondents.
    No. 23866.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.

      C. B. Burns, Jr., Brookfield, Brehmer & McMahon, C. Stanley McMahon, Winona, Minn., for appellant.
    Errol Joyce, Brookfield, Robert N. Jones, St. Louis, for respondents.
   MAUGHMER, Commissioner.

This is an action on an account for merchandise sold to Kenneth Clarence Hicks (dealer) brought against the defendants H. D. Hall and James Welsh, under the terms of the dealer’s contract, payment of which was guaranteed in writing by Hall and Welsh as Hick’s sureties. The jury’s verdict was in favor of both defendants, and plaintiff has appealed.

Plaintiff, The J. R. Watkins Company, is a corporation engaged in the manufacture of goods and merchandise, primarily for home consumption, which are sold almost exclusively by individual door-to-door salesmen or dealers.

On August 24, 1949, Hicks as “Purchaser” entered into a written agreement with the company under which he agreed to buy and the company agreed to sell to him at wholesale prices some of its products. The agreement provided that the Purchaser pay for the goods by remitting 60 percent of his receipts from sales. This agreement was to continue in effect until December 1, 1951, but either party could terminate earlier by simply giving written notice to the other party.

The company produced substantial evidence that it shipped and Hicks received merchandise of a wholesale value of $1,307.-30, that Hicks paid $119.71 on the account and was entitled to a further credit of $5.40, leaving a balance due of $1,182.19. That such an amount was due with interest at 6 percent from January 20, 1956, was undisputed and, in effect, conceded.

On the lower half of this Agreement, covering only one page, there appears a printed paragraph followed by the phrase in capital letters “SURETIES SIGN HERE WITH INK”, which paragraph was signed by both of the defendants in this lawsuit. This particular paragraph or surety guaranty provided that in consideration of the company’s agreement to sell products to Hicks, the sureties “waive * * * notice of default or of nonpayment, and waive action required, upon notice, by any statute, against the Purchaser; and we jointly, severally and unconditionally promise, agree and guarantee to pay for said goods and other articles * * *

On August 26, 1949, the company mailed to each of the sureties by registered mail the following notice: “We are pleased to inform you that we have received and accepted the Agreement of Mr. Kenneth Clarence Hicks, dated August 24, 1949, and expiring by limitation on December 1, 1951, which you have signed as surety. Yours very truly, The J. R. Watkins Company, H. Greene Contract Department”. Return receipts signed by each defendant on August 21, 1949, were received in evidence and each defendant admitted at the trial that he had received this notification.

While appellant company on appeal alleges error in receiving certain testimony and in the refusal of a proffered instruction, we believe the vital issue on this appeal is presented by appellant’s Point One, asserting that it was error to refuse its motions for a directed verdict against each defendant. Determination of this issue requires a summarization of the evidence.

■ It was the testimony of defendant Hall that at the time he signed as surety he was 62 years of age, had a country school education and was a long time employee of the Burlington Railroad as a telegrapher and station agent. He said that at the time he signed in August, 1949, he had just reached home from work, it was about 6:00 p. m. and Kenneth Hicks, whom he knew, came to his door with a paper in his hand and “asked me if I would sign it for him so that he could go to work for the Watkins Company”. He stated Hicks told him it was just a recommendation and he (Hall) did not read the paper but just signed it. He said he used his own pen, placed the paper on the porch railing and signed his name. He saw another man whom he did not know, sitting in the car. Mr. Hall admitted that a few days later he received a registered letter from the company telling him that Hicks’s application “which you have signed as surety” had been approved.

The defendant Welsh was 43 years of age when he signed as surety. He had finished two years of high school, been employed as a section hand by the railroad and as a laborer by a produce company. He described the actual signing as having occurred about 8:00 p. m., said he was mowing the yard when a car drove up, a man got out “walked up to me and introduced himself as ‘Andrews’ * * * He said he was a representative of the Watkins Company and that he was making inquiry as to the character reference of Kenneth Hicks and wanted to know if I knew Mr. Hicks and I told him that I did. * * * I asked him if he was wanting a letter of recommendation. He said ‘Yes, it is more or less that, what you would call it. It was more or less a formality the company had to go through’. I said that if it was a letter of recommendation, I would sign it. I asked him if there had been anyone else sign it and he said that Harry Hall did. * * * He produced this paper and handed it to me and handed me a pen from his pocket because I didn’t have one with me”. Mr. Welsh admitted he received the registered notice from the company a few days later but declared he did not know what “surety” meant. He said that he could read without glasses at the time he signed. Mr. Kenneth Hicks generally corroborated the testimony of Hall and Welsh relative to the circumstances of their signing.

Elbert J. Andrews (referred to by Welsh as the man who procured his signature) testified that from 1947 to August, 1949, he had been employed as a fieldman for the J. R. Watkins Company. He said his duties as fieldman were to recruit dealers and check on the financial responsibilities of sureties. He stated that he filled out an application for Hicks, who had been nominated by another Watkins dealer, and that he checked on the financial responsibility of Mr. Hall and Mr. Welsh as sureties. He denied having obtained Welsh’s signature, and said the agreement bearing the signatures of both Hall and Welsh was brought to him by Mr. Hicks. Plaintiff’s Exhibit 22 was received in evidence. It is a two page typewritten letter addressed to Elbert J. «Andrews, fieldman, signed by the president of Watkins Company and entitled “SCOPE OF EMPLOYMENT & LIMITATION OF AUTHORITY Of Field-men Of THE J. R. WATKINS COMPANY, WINONA, MINNESOTA”. We quote in part from the exhibit:

“In case the prospective customer desires Surety Agreement form of Credit Contract (under which his account with the Company will be secured by the guarantee of personal sureties), you will outline to him the Company’s requirements for such sureties.

******
“you are specifically forbidden to do any of the following:
******
“Make any statement or representation of any kind whatsoever not in accordance with the express terms and conditions of the Company’s printed contract forms and relative printed matter.
“Have anything whatsoever to do with the negotiations between the prospective customer and his sureties, or prospective sureties, or be present at, or have anything to do with, such negotiations or dealings.
“Request or solicit any person to become a surety, or prospective surety, for any prospective customer”.

We must of course consider that the jury found against plaintiff and for each defendant on the fact issues. Therefore, we shall assume that Andrews talked with Welsh and secured his signature and was seated in the automobile when Hall signed, pursuant to the request of Hicks. We also assume that both Andrews and Hicks represented the agreement as being merely a recommendation.

Of course if Hicks was an agent of the company to make the contract and fraudulently represented the guaranty agreement as being merely a recommendation, then Hall has a good defense. The same is true respecting Andrews and Welsh. There is a second possible defense. It is the general rule that a surety is equitably estopped to deny liability if he had an opportunity to read the document but negligently failed to do so or failed to do what might reasonably be expected from one in his circumstances. Did the defendants Hall and Welsh exercise reasonable care as to informing themselves concerning the contents of the document which they signed? Was either Hicks or Andrews the agent of the company for the purpose of making this contract or waiving and abrogating its plain written provisions? We believe defendants have no substantial evidence of any such agency. In fact the written purchaser agreement and the document defining and limiting the authority of a fieldman such as Andrews, indicates complete absence of such authority.

There are four opinions by our Missouri appellate courts which rather definitely declare the legal principles and apply such principles to factual situations quite similar to ours. We shall review those opinions.

In J. R. Watkins Co. v. Thompson, 230 Mo.App. 482, 93 S.W.2d 1100, 1103, the surety, John T. Watkins, signed what he believed was only a letter of recommendation. The verdict was for defendant. This court said:

“We conclude that under the law of the state of Missouri if one, by fraud and misrepresentation, is induced to sign one instrument under the belief that he has signed another instrument of different import and does not knowingly or intentionally give the appearance of validity thereto, such a signer is not obligated thereon if he exercised prudent diligence within his ability to so do. An instrument, to which the signing of same was so procured and induced, is no more the act of the one so signing than if his name had been forged to the same. Gate City National Bank v. Bunton, 316 Mo. 1338, 296 S.W. 375.” (Italics added).

In that case the defendant Watkins was 85 years of age, with senile cataracts of both eyes, hardening of the arteries, heart disease, much trouble with his kidneys and prostate gland. He was an invalid, was being cared for by his daughter-in-law, but was approached and persuaded to sign in her absence and with no other friend or relative near to protect him. The court approved the jury’s finding that in effect held “he [had] exercised prudent diligence within his ability to so do” and that a man in his condition could not reasonably be expected to do very much to protect himself from imposition. In addition, in this case, most of the credit which the company was seeking to collect from the surety had been extended prior to the signing of the guaranty agreement.

The next case in this field includes an opinion by the Springfield Court of Appeals (J. R. Watkins Co. v. Oldfield et al., 168 S.W.2d 594) and one by the Supreme Court of Missouri (J. R. Watkins Co. v. Oldfield et al., 351 Mo. 894, 174 S.W.2d 142). In that case once more the suit was against the sureties and the defense was fraud and misrepresentation, the sureties allegedly having been told the agreement they signed was merely a recommendation. The jury verdict was for defendant. The Court of Appeals reversed outright and directed entry of judgment in favor of plaintiff for the amount sued for, with interest. The Supreme Court approved and affirmed the action of the Court of Appeals. For the facts we quote from page 142 of the Supreme Court opinion in 174 S.W.2d:

“The defense as interposed was that the signatures to the guaranty contract were obtained by fraud. O. B. Cush-man testified that Oldfield informed Mrs. Cushman and himself that the paper writing was nothing more than a recommendation to the company; that Oldfield was in a hurry; that his, Cushman’s eyesight was bad; that it was a cloudy day and he could hardly read the fine print so signed on the strength of what Old field had told him. After the Cushmans had signed the contract, and before any merchandise was sold to Oldfield, they received a letter from plaintiff corporation advising them that they had been accepted as guarantors for the payment of goods to be sold to Oldfield. Respondent Lola M. Cushman testified that when they received the letter: ‘That was the first I knew that I had signed the bond. I did not know what to do, I let matter drift along until sued.’ The court of appeals was correct in ruling that under the pleadings and evidence the trial court should have directed a verdict for plaintiff. Both respondents were able to read and write and to understand the nature of the contract they had signed. Even if Mr. Cush-man’s eyesight was poor his wife was present and could easily have read the paper they were asked to sign. In addition to that plaintiff notified them before parting with any of its property that they had signed a contract of guaranty for Oldfield. In the circumstances the defense of fraud was not available to respondents”.

The court distinguished that case on the facts from Watkins v. Thompson, supra.

The Supreme Court of Missouri en Banc, in April, 1953, (J. R. Watkins Co. v. Lankford et al., 363 Mo. 1046, 256 S.W.2d 788) again considered this question from both the legal and factual viewpoint most fully. We quote from the opinion sufficiently to state the facts and declare the rules:

“Defendants’ evidence was that their signatures as sureties were obtained by fraud by Baker and Paul Corbin, who was with him when Sanders signed, saying the paper was only a recommendation. In the case of Sanders (who is the only defendant now contesting plaintiff’s right to judgment) Baker and Corbin drove out to his home and found him in the driveway. Baker got out first and asked Sanders to sign (saying it was a recommendation) while Corbin remained in the car. (Baker said he had never read the document but took Corbin’s word for what was in it.) Sanders said, after he had talked with Baker, 'he (Corbin) got out and said that he wanted me to sign this recommendation for Mr. Baker to sell Watkins’ products and I said that I didn’t have my glasses and couldn’t read without them and I said that I didn’t want to sign anything that would hurt me in any way and he said there was nothing there that would hurt me and that it was just a recommendation for Mr. Baker.’ Sanders then signed without going into the house for his glasses. Baker’s contract and the suretyship agreement were both printed on one long (legal size) sheet of paper. Defendants’ evidence showed that Sanders could not read without his glasses, hut had 20-20 vision with them.
“Plaintiff’s evidence was that it wrote letters dated March 28, 1939, to each of the sureties on Baker’s contract (dated March 25, 1939 and terminating April 1, 1940) which were sent by registered mail with directions ‘Deliver to addressee only. Personal receipt required.’ The letter to Sanders said: ‘We are pleased to inform you that we have received and accepted the Agreement of Mr. John Baker dated'March 25, 1939, which you signed as surety, together with Louis Wilkerson and J. L. Lankford.’ Plaintiff had a registered mail receipt, dated April 6, 1939, signed ‘T. J. Sanders.’ However, Sanders denied receiving the letter and said he did not think the signature on the receipt was his signature. We must, of course, consider that the jury found against plaintiff on the fact issues.
“The first question is whether the fact that the suretyship agreement was fraudulently misrepresented to Sanders by the principal Baker, and also by Corbin, as only a recommendation, is any defense to plaintiff’s action on the agreement. Of course, as authorities hereinafter referred to hold, that would be a defense if either Baker or Corbin were agents of plaintiff to make the contract. However, as hereinafter shown, defendants had no substantial evidence of such agency. The Court of Appeals followed its previous decision in General Motors Acceptance Corporation v. Holland, Mo.App., 30 S.W.2d 1087, 1090, in which it said in a similar case: ‘The evidence fails to indicate that plaintiff had knowledge of such deception or the circumstances under which defendant signed the guaranty. It therefore should not be made to suffer the loss brought about by defendant’s blind trust in another. The old equitable rule is applicable that, where one of two innocent parties shall suffer by reason of the fraud of a third person, the one who permits himself to be deceived and thus puts it in the power of such third person to defraud another should be the loser rather than the latter.’ The great weight of authority is in accord with this statement of the rule, (citing authorities).” Both Baker and Corbin were Watkins dealers.

The court then distinguished that case on the facts from those in the Thompson case and said:

“The facts in the Thompson case were very different as we pointed out in the Oldfield case, supra, 174 S.W.2d loc. cit. 143. In the first place, ‘the full debt sued for in this case was past due when defendant Watkins (surety therein) signed his name.’ Thus plaintiff therein had not ‘extended credit to the principal on the security of the surety’s promise’ as required by the rule stated in Sec. 119, Restatement of Security. Furthermore, the age and physical condition of the surety was very different as he was apparently an invalid afflicted with hardening of the arteries, heart disease, prostate gland and kidney trouble and was unable to read because of cataracts affecting both eyes. The real basis of the equitable rule applied in these cases is in the nature of an estoppel against the surety who had an opportunity to read the instrument but did not do so; and it is his negligence in failing to do what it was reasonable for him to have done that is the basis of the estoppel. Of course, this rule could not be applied to the same extent against a blind man, or an illiterate man who could not read, because he would have to rely on another to read it to him”. (Italics ours).

Respondents in their brief say that neither Hall nor Welsh “understood the meaning of the word ‘surety’ as used in the contract sued on”, and that this brings the case within the rule on illiteracy announced in J. R. Watkins Co. v. Lankford, supra. It is there held that the rule denying recovery for failure to read a contract “could not be applied to the same extent against a blind man, or an illiterate man who could not read, because he would have to rely on another to read it to him”. Neither Hall nor Welsh was illiterate. Both could read. Neither was blind. There is quite a difference, we think, between a man who is blind, and a man who has eyes but does not use them.

There is no substantial evidence in our case that either Hicks or Andrews was an agent of the company authorized to make the contract or abrogate the plain provisions of the guaranty agreement. In fact the evidence is quite clear that they had no such authority. It is further our opinion that both Hall and Welsh had an opportunity to read the instrument but did not do so and considering their general capacities and abilities at the time, were negligent in failing to do so and hence are estopped to deny their liability. We are impelled to these conclusions, we think, by the results reached in the opinions which we have reviewed hereinabove. We hold that the trial court erred in refusing to direct a verdict for plaintiff for that sum which admittedly was due if defendants were liable.

The judgment for the defendants is reversed and the cause remanded with directions to enter judgment against defendants in the sum of $1,182.19, with interest at the rate of 6 percent from January 20, 1956.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


author: HOGAN, Judge.

text:
    Glenn S. McCRORY and Frieda P. McCrory, Plaintiffs-Respondents, v. Charles A. BRINCKMANN and Charles Donald Brinckmann, Defendants-Appellants.
    No. 8293.
    Springfield Court of Appeals. Missouri.
    June 16, 1964.

      Orville C. Winchell, Lebanon, James P. Roach, Camdenton, for defendants-appellants.
    Morgan M. Moulder, Camdenton, for plaintiff s-respondents.
   HOGAN, Judge.

This is an action for specific performance instituted by the plaintiffs to enforce the provisions of a “Lease with Agreement to Sell” executed by the parties on October 26, 1956. As material here, and in barest outline, the record shows that this instrument demised a parcel of real property in Camden County, Missouri, to the plaintiffs for a period of ten years at an annual rent of $1,500.00, payable monthly, subject to the right of the parties to terminate the lease upon certain conditions. The instrument also confers upon the plaintiffs certain rights in the nature of an option to purchase the property.

On February 13, 1963, the plaintiffs filed their petition in this case, reciting the execution of the lease, generally alleging exercise of their option to purchase in a manner contemplated in the lease, and setting up defendants’ refusal to perform. The prayer of the petition was that defendants “be directed to convey * * * the premises hereinbefore described to plaintiffs.”

The defendants answered, admitting execution of the lease, denying the other allegations of the petition, and setting up affirmatively plaintiffs’ failure to exercise their option “in accordance with the agreement made between the parties herein.”

After a trial to the court on April 12, 1963, the case was taken under advisement. On July 3, 1963, pursuant to defendants’ request made before trial, the court made certain findings of fact and conclusions of law as provided by Rule 73.01(b), V.A. M.R., and entered a decree for specific performance. The order of judgment recites, among other things, that “ * * * defendants shall forthwith cause to be delivered to plaintiffs the warranty deed heretofore placed in escrow or execute a warranty deed conveying to plaintiffs the fee simple title in and to the real estate described in plaintiffs’ petition [describing itj * * *” and further reciting that if defendants shall fail to execute and deliver the deed “ * * * then this judgment * * * shall have the same force, effect and operation as such deed.” The defendants appealed to this court. Before the appeal was argued and submitted, the respondents filed a motion to transfer the cause to the Supreme Court upon the ground that title to real estate is involved. The motion was ordered taken with the case. If the “title to real estate” is involved in the constitutional sense of that phrase, we of course have no jurisdiction. Article V, Section 3, V.A.M.S. Constitution of 1945.

We have examined the record, and have concluded that the respondents’ motion is well taken. Generally speaking, an action for specific performance of a contract to convey land involves the title to real estate within the meaning of the Constitution, Kauflin v. Turek, Mo., 277 S.W.2d 540, 542 [1]; Drake v. Hicks, Mo., 249 S.W.2d 358, 360 [1], and in this case, if the plaintiffs properly elected to exercise a valid absolute option to purchase contained in the lease, their acceptance created a complete bilateral contract for the sale of land, subject to specific enforcement. Chapman v. Breeze, 355 Mo. 873, 876-877, 198 S.W.2d 717, 719 [2-5]; Cummins v. Dixon, Mo., 265 S.W.2d 386, 398 [22]; 49 Am.Jur., Specific Performance, Section 117, pp. 137-138. In its order and judgment, the trial court found that the plaintiffs had in fact exercised their option to acquire a fee simple title to the real property involved in accordance with the terms of the contract, and ordered that the defendants execute and deliver a warranty deed to the plaintiffs. The order provided that if the defendants failed to do so, then the judgment itself should operate as a conveyance. It seems plain to us that this is a judgment for conveyance as contemplated by Rule 74.22, V.A.M.R., which, though it was couched in conditional terms, passed the title without any act of the defendants. Rule 74.22, supra, Otto v. Young, 227 Mo. 193, 215-217, 127 S.W. 9, 17 [9]; Macklin v. Allenberg, 100 Mo. 337, 341, 13 S.W. 350, 351 [1]. Since the judgment actually rendered determines title, we therefore have no jurisdiction of the appeal. Domyan v. Dornin, Mo.App., 348 S.W.2d 360, 361 [1]. Accordingly, the cause is ordered to be transferred forthwith to the Supreme Court as prescribed by Section 477.080(2), RSMo. (1959), V.A.M.S.

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


text:
    G. V. LANDERS, Plaintiff-Appellant, v. Dessie M. SMITH, Defendant-Respondent.
    No. 8252.
    Springfield Court of Appeals. Missouri.
    May 29, 1964.

      James K. Prewitt, Henry W. Westbrooke, Jr., Miller, Fairman, Sanford, Carr & Lowther, Springfield, for plaintiff-appellant.
    Buell F. Weathers, Mann, Walter, Powell, Burkart & Weathers, Springfield, for defendant-respondent.
   HOGAN, Judge.

This is an action for $1,000.00 property damage sustained by plaintiff in a collision of two motor vehicles. The trial court has entered judgment for the defendant on her motion for summary judgment, and the plaintiff has appealed. The specific question for our consideration is whether, upon the facts and circumstances of this case, the plaintiff’s claim is barred because he failed to assert it as a counterclaim in a previous action between the same parties in which he was defendant and the present defendant was plaintiff.

The appeal is before us upon a record consisting of some of the pleadings in the present action and some of the pleadings in the previous case, and in certain respects it does not fully disclose what occurred. In view of our duty to dispose of a case if we reasonably can, however, Rule 83.13 (c), V.A.M.R.; State ex rel. George v. Mitchell, Mo.App., 230 S.W.2d 116, 120 [5], we have concluded that the record is sufficient for us to reach a decision with reasonable confidence in its fairness and accuracy, even though certain steps taken in the two cases might have been more fully disclosed to us.

In general, as shown by the record on appeal, the facts are these: On May 10, 1962, automobiles being driven by the present plaintiff, Landers, and the present defendant, Smith, collided on U. S. Highway 66 a short distance west of Springfield, Missouri. On August 10, 1962, Miss (or Mrs.) Smith instituted an action against Landers in the Circuit Court of Greene County, Missouri, and the parties concede that valid service was obtained. None of Landers’ pleadings from the first action appear in the record, although we gather from the argument of counsel that some sort of authorized motion was filed. In any event, this first case was dismissed by stipulation on January 15, 1963. The stipulation, signed by former counsel for both parties, reads as follows:

“It is hereby stipulated and agreed by and between the plaintiff and defendant in the above entitled cause, as follows:
“1. That plaintiff’s petition, and Count I and Count II thereof, in which plaintiff seeks to recover damages of Two Thousand Dollars ($2,000.00) for alleged personal injuries received by plaintiff and Four Hundred Twenty-Five Dollars ($425.00) for alleged property damage as a result of sccident which occurred on May 10, 1962, on US Highway No. 66 at a point approximately one hundred (100) feet West of Highway 66 and MM Junction in Greene County, Missouri, all claimed to have been caused by the negligence, carelessness, and recklessness of Gerson V. Landers at said time and place, should be, and hereby is, dismissed with prejudice by plaintiff herein.
“2. That, however, such dismissal with prejudice of plaintiff’s petition, and Count I and Count II thereof, shall not foreclose, change, modify, affect or prejudice the rights and causes of action, if any, of Ger-son V. Landers, defendant in the above entitled suit, nor the rights and causes of action, if any, of the State Farm Mutual Automobile Insurance Company in the subro-gation clause of its policy of insurance with the said Gerson V. Landers.” (Emphasis ours)

On March 5, 1963, the present plaintiff, Landers, instituted this action against the present defendant, Smith, setting up the same general facts as had been alleged in the first action, alleging many acts of negligence on defendant Smith’s part, and seeking recovery for damage to Landers’ automobile in the sum of $1,000.00. Shortly after the commencement of the second action, the present defendant, Smith, filed a request for admission, setting up the identity of the parties in the first action, the identity of the general subject matter, the disposal of the first case upon stipulation, and the failure of the present plaintiff to file any counterclaim or assert his present cause of action in any manner prior to institution of the present action on March 5, 1963. The record does not indicate what answers, if any, were filed in response to this request. Substantially the same matters were pleaded in the motion for summary judgment, in any case, and the court granted the motion.

The appellant here argues that his claim was not barred as an omitted compulsory counterclaim because the first suit was dismissed before he was required to assert it, and he further argues that, in any case, defendant Smith is estopped by her stipulation, which reserved the plaintiff’s present claim. The respondent answers by saying that the present action is a claim which should have been asserted as a counterclaim, and, citing Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001, and Max v. Spaeth, Mo., 349 S.W.2d 1, maintains that, regardless of the conduct of the parties, the plaintiff’s action is now barred by the force of Rule 55.45(a). Since the cause was determined upon motion for summary judgment, we must review the matter as we would a court-tried or equity case, to determine the sufficiency of the evidence to support the judgment on any theory, entering such judgment as the trial court ought to have given. Rules 73.01(d) and 83.13(c); Swink v. Swink, Mo., 367 S.W.2d 575, 577-78 [1-3].

Rule 55.45(a) requires that “[a] pleading shall state as a counterclaim any claim which at the time of filing such pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim * * In all respects material here, this rule is the counterpart or analogue of Fed.R.Civ.P. 13(a) and was enacted as a means of bringing all logically related claims into a single litigation through the penalty of precluding the later assertion of omitted claims, even though the rule does not, in express terms, provide a penalty for lack of compliance. It is plain that failure to plead a compulsory counterclaim bars the pleader from bringing a later independent action upon the same claim, although the nature and extent of the bar interposed by compulsory counterclaim statutes is the subject of divergent views, or at least considerable semantic confusion. Our courts seem to hold that there is a waiver of the unasserted claim.

We do not understand the parties to question these general principles, nor is there any question that the two claims, Landers’ and Smith’s, were claims to which Rule 55.45(a) would ordinarily apply. Keller v. Keklikian, supra, 362 Mo. at 927, 244 S.W.2d at 1005. The respondent concedes that, upon the record presented, there is no indication that any release was executed, and there is no issue of any accord and satisfaction based on such a release. There is no contention that the stipulation filed in the first case was unauthorized. The respondent makes no claim of any fraud, duress or mistake in the execution of the stipulation. What we must consider and resolve in this case is, in the first place, whether Mr. Landers’ present claim was absolutely barred by the force of Rule 55.45(a) at the time the first action was dismissed, and, if it was not, whether the stipulation for dismissal was effective to preserve Landers’ separate claim for property damage for later assertion.

We do not know, with any reasonable degree of certainty, the stage to which the pleadings .had progressed in the first action when it was dismissed. Counsel for the appellant assures us that, at the time of dismissal, the case was pending on an authorized motion and therefore no “pleading,” as the word is used in Rule 55.45(a), was yet due. Therefore, his argument runs, since a responsive pleading could be filed within ten days after notice of the trial court’s action on the motion, Rule 55.27(c), he cannot be said to have waived his counterclaim in the first case. We think it may be true that there is no waiver of a com pulsory counterclaim at all until the time has arrived for defendant’s responsive pleading, Potter v. Carvel Stores of N. Y., Inc., Md, D.C., 203 F.Supp. 462, 464-465 [1], aff’d. 4 Cir., 314 F.2d 45. The difficulty with that argument here is that no motion (or other indication of Landers’ pleading in the first case) is to be found in the transcript. We cannot accept counsel’s statement as a substitute for record proof, even though we have no reason whatever to question its accuracy. In re Jackson’s Will, Mo.App., 294 S.W.2d 953, 954 [1, 2] ; E. C. Robinson Lbr. Co. v. Lowrey, Mo. App., 276 S.W.2d 636, 644 [21], The most we can say as a matter of fair inference is that the first action was voluntarily dismissed by the original plaintiff, Smith, prior to a trial on the merits.

Even so, we do not believe that Landers’ counterclaim was absolutely and finally barred at the time the first case was dismissed. We cannot read into the Keller case, supra, 362 Mo. 919, 244 S.W.2d 1001, nor Max v. Spaeth, supra, 349 S.W.2d 1, any definition of the extreme last moment at which a compulsory counterclaim can he filed. In our view, the bar of the compulsory counterclaim rule does not become complete, nor is the counterclaim wholly foreclosed, until the action proceeds to judgment. Until the first action proceeded to judgment, the trial court still had discretionary power to permit consideration of Landers’ counterclaim, Rule 55.48; Wendell v. Holland-America Line, supra, n. 6, 30 F.R.D. at 163-64 [1, 2], Therefore, we conclude that the counterclaim was still open to consideration at the time the stipulation was filed. Certainly there is no indication that Landers “deliberately waived his counterclaim”; his stipulation speaks to the contrary.

Such considerations do not, however, dispose of the merits of this case, in our opinion. Upon the record presented, we know nothing of the factual background or the subjective circumstances in which this stipulation was executed. All that appears is that the respondent, after ample time for deliberation, voluntarily stipulated that consideration of Mr. Landers’ claim might be reserved. A stipulation is a “proceeding in court, under the court’s supervision,” and is binding upon the parties with “whatever force and effect ‘a proceeding in court’ may have” until it is attacked or set aside. A stipulation should be interpreted in view of the result which the parties were attempting to accomplish, Huegel v. Huegel, supra, n. 7, 329 Mo. at 576, 46 S.W.2d at 158, and it seems plain beyond question that when the stipulation was executed, the parties had in mind that Landers might assert some kind of claim arising out of the same accident at a later date, and agreed that he might do so. Mr. Landers’ claim was expressly reserved in the stipulation under consideration; its provisions are in no sense as broad and inclusive as those found in the Keller case and the Max case, both of which recited that “[a] 11 of the matters and things in controversy” had been settled. Stipulations varying or altering trial procedure, or waiving the benefit of procedural statutes, have been consistently enforced by our courts in the absence of any claim of fraud, duress or mistake, and we can perceive no sound reason why the respondent should not now be held to what she has stipulated.

For the reasons indicated, the judgment should be reversed and the cause remanded. It is so ordered.

RUARK, P. J., concurs.

STONE, J., concurs in the result.

      . All references to statutes and rules are to RSMo (1959), V.A.M.S. and V.A.M.R. Rule 55.45(a) was originally enacted as § 73 of the Code of Givil Procedure, L. 1943, p. 377, and was carried forward in the 1949 and 1959 revisions as § 509.420.

      . Lesnik v. Public Industrials Corp., 2d Cir., 144 F.2d 968, 975; Keller v. Keklikian, supra, 362 Mo. at 926-927, 244 S.W.2d at 1004-1005 [4, 5]; State ex rel. Fawkes v. Bland, 357 Mo. 634, 640, 210 S.W.2d 31, 33; Brinkmann v. Common School Dist. No. 27, Mo.App., 238 S.W.2d 1, 5-6 [4, 5] [6, 7], aff’d. Brinkmann v. Common School Dist. No. 27 of Gasconade Co., Mo., 255 S.W.2d 770; see Wright, Estoppel by Rule: The Compulsory Counterclaim, 39 Iowa L.R. 255, 260 (1954).

      . Keller v. Keklikian, supra, 362 Mo. at 927, 244 S.W.2d at 1005; State ex rel. Fawkes v. Bland, supra, 357 Mo. at 640, 210 S.W.2d at 33; Brinkmann v. Common School Dist. No. 27, supra, 238 S.W.2d at 5-6 [4, 5] [6, 7], aff’d. Brinkmann v. Common School Dist. No. 27 of Gasconade Co., Mo., 255 S.W.2d 770; Hayden v. Yelton, Mo.App., 237 S.W.2d 249, 252 [4, 5] ; State ex rel. Mack v. Scott, Mo.App., 235 S.W.2d 106, 111 [9].

      . See Wright, op. cit., 39 Iowa D.R.. at 260-63, id. at 269-286; 1A Barron & Holtzoff, Fed.Practice & Proc., § 394.1, pp. 584-87 (Rules Ed. 1960).

      .State ex rel. Fawkes v. Bland, supra, 357 Mo. at 640, 210 S.W.2d at 33, “ * * * If he deliberately fails to do so [assert his compulsory counterclaim] he waives such claim”; State ex rel. Mack v. Scott, supra, 235 S.W.2d at 111, “ * * * A party failing to set up * * * any related claims * * * waives the claims”; see Hyde & Douglas, The Civil Code Act of 1943, 2 Carr Mo. Civ.Proc. 551 “ * * * A party who disregards this requirement will no doubt he held to waive his counterclaim.”

      . Note 7, notes to original Rule 13, Fed.R. Civ.P., 28 U.S.C.A. Rule 13, p. 342 ; 3A Barron & Holtzoffi, Fed.Practice & Proc., p. 439 (Rules Ed. 1958) ; Bellmore Sales Corp. v. Winfield Drug Stores, Inc., S.D.N.Y., 187 F.Supp. 161, 162 [5, 6]; Wendell v. Holland-America Line, S.D.N.Y., 30 F.R.D. 162, 163-64; see also Douglas v. Wisconsin Alumni Research Eoundation, N.D.Ill., 81 E.Supp. 167, 170-171 [8, 9] ; LaFollette v. Herron, E.D.Tenn., 211 F.Supp. 919, 920.

      . Keller v. Keklikian, supra, 362 Mo. at 926, 244 S.W.2d at 1004 [2, 3]; Huegel v. Huegel, 329 Mo. 571, 575, 46 S.W.2d 157, 158 [1 — 4]; Galbreath v. Rogers, 30 Mo.App. 401, 406; 83 C.J.S. Stipulations § 1, p. 2. See also Brookings State Bank v. Federal Reserve Bank of San Francisco, D.C.Ore., 291 F. 659, 660 [1].

      . Keller v. Keklikian, supra, 362 Mo. at 926, 244 S.W.2d at 1004 [2, 3]; Hansen v. Ryan, Mo., 186 S.W.2d 595, 600 [6]; Early v. Smallwood, 302 Mo. 92, 106, 256 S.W. 1053, 1055-56 [2]; Casler v. Chase, 160 Mo. 418, 425, 60 S.W. 1040, 1041-42; Short v. Taylor, 137 Mo. 517, 526, 38 S.W. 952, 954.

      .For examples, see Berry v. Chitwood, Mo., 362 S.W.2d 515, 518 [9]; Corder v. Morgan Roofing Co., 355 Mo. 127, 141, 195 S.W.2d 441, 448 [11]; Zeitinger v. Hargadine-McKittrick Dry Goods Co., 309 Mo. 433, 457, 274 S.W. 789, 797 [6]; Casler v. Chase, supra, n. 8, 160 Mo. at 425, 60 S.W. at 1041-1042; General Motors Acceptance Corp. v. Van Ausdall, 241 Mo.App. 499, 507, 249 S.W. 2d 1003, 1007 [7]; Maryland Casualty Co. v. Dobbin, 232 Mo.App. 557, 568, 108 S.W.2d 166, 172 [1]; Carpenter v. City of Versailles, Mo.App., 65 S.W.2d 957, 958 [2, 3]; Gregg v. Kroensbein, Mo.App., 209 S.W. 113, 115 [6]. See Short v. Taylor, supra, n. 8, 137 Mo. at 526, 38 S.W. at 953-954 [3].


author: MAUGHMER, Commissioner. PER CURIAM.

text:
    Helen HARPER, Appellant, v. Charles M. HARPER, Respondent.
    No. 23983.
    Kansas City Court of Appeals. Missouri.
    June 1, 1964.
    J. Nelson Thompson, Kansas City, for appellant.
    Josephine Myers, Kansas City, for respondent.
   MAUGHMER, Commissioner.

The trial court set aside plaintiff’s default divorce decree and she appeals from the denial of her motion for rehearing. Respondent has not favored us with either a brief or oral argument. Appellant has not briefed the very important question as to whether or not there is here a final judgment from which an appeal lies.

On April 17, 1963, Helen Harper, plaintiff, filed her petition for divorce from defendant Charles M. Harper. On this same date she filed an “Entry of Appearance and Waiver”, which was signed and sworn to by the defendant. We set out the contents:

“I, Charles M. Harper, of lawful age, having first been duly sworn on my oath, state that I am the defendant in the above cause of action now pending in the Circuit Court of Jackson County, Missouri; that I acknowledge the receipt of the Petition for Divorce and Summons, and waive the issuance and service of Summons upon me, and I hereby voluntarily enter my appearance in the above entitled cause, and consent that this case may be set down for trial and disposition at any time that suits the convenience of the Court without further notice to me.”

Thereafter the court heard the testimony of plaintiff and her two character witnesses and on June 26, 1963, entered a default decree by which plaintiff was granted a divorce and custody of the one minor child. On July 8, 1963, defendant filed a motion to set aside this default judgment. Therein he alleged facts suggesting fraud in procurement and, in addition to requesting that the decree be set aside, prayed for permission to withdraw his Entry of Appearance, and file a cross bill. Before the court took any action thereon defendant filed a second motion to set aside the judgment for want of jurisdiction, alleging the “purported entry of appearance” was signed prior to the filing of plaintiff’s petition and therefore was a nullity and insufficient to confer jurisdiction. Plaintiff alleged that defendant was a resident of Kansas and asked that he be required to post bond for costs as a prerequisite to consideration of his motions.

On July 19, 1963, the court made and entered the following order:

“Now on this day come the parties in person and by their respective attorneys, and in open court plaintiff files objections to defendant’s motion to set aside decree of divorce, and motion to compel defendant to post bond, and now defendant’s motion to set aside decree of divorce heretofore entered is by the court heard and sustained.
“Therefore it is ordered and adjudged by the court that the decree of divorce heretofore entered be and the same is hereby set aside and for naught held”. (Italics ours).

It will be noted this order did not dismiss the cause, but rather set aside the judgment and was made within 30 days after entry of the default decree. Thereafter the court allowed plaintiff, pursuant to her motion, temporary alimony and suit money. Plaintiff submitted motion for rehearing, which the court overruled. She then filed the following Notice of Appeal:

“Notice is hereby given that Helen Harper, the plaintiff above-named, hereby appeals to the Kansas City Court of Appeals from the decision of the Circuit Court of Jackson County, Missouri, at Independence in overruling Plaintiff’s Motion for Rehearing *

On her appeal plaintiff cites numerous authorities and strenuously argues that in a divorce case an entry of appearance and waiver of process confers jurisdiction as to the person, even though such document was executed prior to the commencement of the suit. She also contends that when defendant filed his first motion to set aside the decree based upon fraud in procurement, he made a general appearance and it was then too late for him to appear specially to question the jurisdiction only. She urges further that since defendant was a resident of Kansas his motions were not determinable unless and until he posted bond. Plaintiff’s contentions in these respects may be sound but we must first determine if an appeal lies from the trial court order setting aside the judgment, or as plaintiff stated it, from the order overruling her motion for rehearing. It is our duty to make such an inquiry sua sponte. Dotson v. E. W., Bacharach, Inc., et al., Mo., 325 S.W.2d 737.

It is fundamental or at least well settled that the right to appeal is purely statutory, and that the right of appeal does not exist except where expressly given. Bussiere’s Adm’r. v. Sayman, 257 Mo. 303, 165 S.W. 796 ; 798. Section 512.020, V.A.M.S. provides in part: “Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, * * * or from any final judgment in the case or from any special order after final judgment in the cause; * * * ”. (Italics supplied).

Is there here left any final judgment upon which to base the appeal? Clearly not, because the motion to set aside being acted upon favorably by the court has utterly wiped the final judgment off the record and off the face of the earth. It is not and cannot be an appeal from a final judgment because such a term could only be applied where a final judgment still existed, not in a case where it had utterly ceased to exist. In this case is there an order granting a view trial or do we find any special order after final judgment from which an appeal is authorized by the statutes? We believe not.

There are numerous cases where the defendants against whom default judgments were taken, appealed, upon refusal of the trial court to set aside such judgments. In Bussiere’s Adm’r. v. Sayman, supra, the plaintiff appealed from the action of the trial court in setting aside her default judgment. At page 799 of 165 S.W. of the opinion the Supreme Court en Banc, said:

“It needs no argument or discussion to demonstrate that since a defendant, when he fails to get favorable action on his motion to vacate a judgment by default, has reached the last ditch, then unless an appeal lies to him the judgment as to him is absolutely' a 'final judgment in the case.’ Section 2038, supra. Manifestly such an appeal may be justified for several other reasons, even with some degree of logic, for that it is 'a special order made after final judgment in a case.’ For there is then as to such defendant an existing final judgment to which the motion to vacate is ancillary. Whether in such case the plaintiff or the defendant prevail in the motion makes a vast difference in the result and likewise in the law, just as there is always a vast difference in the result, and therefore in the law, according as the trial court may exercise, or refuse to exercise, the inherent power resting in it of controlling its orders and judgments during the term at which they were made”.

And 165 S.W. at page 800:

“The rule that an appeal does not lie from an order of the trial court vacating a default judgment is general in the several jurisdictions”, (citing numerous authorities).

In Kallash v. Kuelker, Mo.App., 347 S.W.2d 467, 471, 472, plaintiff took a default judgment for damages. Within thirty days thereafter the court, upon motion, set aside the default judgment and plaintiff appealed from the order denying “Plaintiff’s Motion To Set Aside The Court’s Order Vacating The Judgment heretofore entered in this action”. The St. Louis Court of Appeals, in an opinion by Dew, J., former judge of this court, ruled that the “appeal is unauthorized, is premature and should be dismissed”. We quote further from the opinion:

“The holding in the case of Bussiere’s Adm’r v. Sayman, supra, was reaffirmed by the Supreme Court in State ex rel. Johnson et al. v. Arnold, 317 Mo. 858, 297 S.W. 59. See also Holder v. Chidister, 177 Mo.App. 415, 162 S.W. 762. The court in Carter v. Levy, Mo.App., 217 S.W. 549, in a case where plaintiff appealed from an order vacating a default judgment, dismissed the appeal as not authorized under Section 2038, RSMo 1909 (now Section 512.020) stating, on page 549:
“ ‘The situation is vastly different from that where the trial court has refused to vacate the judgment, and the defendant has appealed; for in those circumstances he “has reached the last ditch” and is entitled to appeal “from any final judgment in the case, or from any special order after final judgment in the cause”.’
******
“Furthermore, the court in the case at bar set aside the default judgment within the thirty day period within which the law permits the court to do so for cause, and from this discretionary order the plaintiff cannot appeal, for want of a final judgment in the case.” (citing authorities in support).

The same result was reached in Farrell v. DeClue et al., Mo.App., 365 S.W.2d 68, where the court held and we quote from the syllabus that “[proceedings culminating in a default judgment were not a ‘trial,’ and even though court thereafter entered an order granting a new trial, such order was not in fact one granting a new trial for purposes of appeal, but a nonappealable order setting aside a default judgment.” The appeal from the order purporting to set aside the default judgment was dismissed as premature.

In Smith v. Malone, 359 S.W.2d 38, the Springfield Court of Appeals ruled that an order setting aside a default judgment and returning the case to the trial docket was not one on motion for new trial or on coram nobis and was not final and appeal-able.

It is of course technically correct to appeal from the final judgment itself, rather than from the action of the trial court in overruling a motion for new trial or, as in this case, from the “decision * * in overruling plaintiff’s motion for rehearing * * However, in Weller v. Hayes Truck Lines, en Banc., 355 Mo. 695, 197 S.W.2d 657, 660, the Supreme Court construed a “Notice of Appeal from an order overruling a motion for new trial”, as an attempt in good faith to appeal from the judgment itself, and determined the appeal on its merits. We are not deciding this appeal upon any technical grounds of nonconformity with the statutory requirements for an appeal, but rather we have treated plaintiff’s effort as an attempt in good faith to appeal from the result reached by the trial court. But there is no final judgment here. One was entered but it was set aside. The authorities referred to and discussed in this opinion lead directly to the conclusion that an attempted appeal from an order setting aside a default judgment is premature and is unauthorized by the statutes.

Furthermore, the court set aside this default judgment within thirty days after its-entry, during which period the “[tjrial court retains control over judgments * * and may reopen, correct, amend or modify its judgment for good cause”. Section 510.-370, V.A.M.S., Supreme Court Rule 3.25. From such a discretionary order the plaintiff cannot appeal for want of a final judgment in the case. Kallash v. Kuelker, supra, 347 S.W.2d page 471.

We believe that under the overwhelming weight of authority the appeal here is-premature, unauthorized and must be dismissed. This conclusion is decisive as to-the appeal. It is, therefore, unnecessary to. consider the other points raised by plaintiff.

The appeal herein is dismissed.

SPERRY, C., concurs.

PER CURIAM.

The foregoing opinion of MAUGHMER,. C., is adopted as the opinion of the Court-

All concur.

        . Now Civil Rule 75.01, V.A.M.R.