text:
    John STEVENS, Appellant, v. DURBIN-DURCO, INC., a Corporation, Respondent.
    No. 50091.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.

      Walter J. Gelber, Gray & Jeans, by James W. Jeans, St. Louis, for plaintiff-appellant.
    Evans & Dixon, Ralph C. Kleinschmidt, A. J. Seier, Jr., St. Louis, for defendant-respondent.
   HOUSER, Commissioner.

Action by John Stevens for damages for personal injuries sustained by him while using a “load binder,” a device manufactured by defendant, Durbin-Durco, Inc. At the conclusion of plaintiff’s case the court sustained defendant’s motion for a directed verdict. Plaintiff has appealed from the ensuing judgment for defendant. We have jurisdiction since plaintiff prayed for $95,-000.

Plaintiff charged negligence in several particulars, including negligent failure to equip the load binder with a safety ratchet to prevent kick-back, in connection with the allegation that defendant designed, manufactured, distributed, sold and put into the flow of commerce devices known as load binders, and that plaintiff was injured as a result of defendant’s negligence, while using a load binder made by defendant. Defendant filed a general denial and pleas of contributory negligence and assumption of risk.

Plaintiff’s evidence tended to show these facts: Plaintiff, a truck driver with 16 or 17 years’ experience, and a fellow driver, Bill Macklin, were securing a load onto a flat-bed truck trailer by the use of a chain and a load binder, both of which were supplied by plaintiff’s employer (who was not a party to this action). One end of the chain was hooked onto a metal lip on the bed of the trailer, and the chain was stretched over the load. The other end of the chain was then hooked onto the other side of the trailer bed. The function of the load binder was to take the slack out of the chain, thus providing a snug, tight attachment of the load to the trailer. A load binder consists of a cam action lever with a link and a hook on each end. The lever is 8 or 10 inches long. The mechanical principle is that of moving a lever through an arc. In one position the lever is open, and in the other it is closed. With the lever in open position each of the hooks is secured in the binding chain, then the movement of the lever through an arc of 180 degrees to a closed position draws the hooks together, thus tightening the chain. As the lever swings through the arc and reaches a closed position the mechanical advantage, and therefore the tension, increases. Swinging the lever through the arc is similar to compressing a spring, in that energy is stored into the load binder. At the end of the arc the pressure increases to its maximum, and if the pressure exerted is sufficient the handle of the device locks into a fixed position. Before reaching the closed or locked position the operator depends upon his own ability to hold the stored energy. A 200-pound man using the normal maximum force to close the lever would store 200 foot pounds of energy, i. e., that energy needed to raise 200 pounds one foot. By slipping a long pipe over the handle-lever the leverage is increased. About 90% of the time extension pipes, called “cheaters,” are used, and according to an offer of proof defendant’s literature stated that the load binder was designed to withstand the use of a cheater. Two men of normal capacity using a cheater pipe doubling the length of the handle-lever could store approximately 800 pounds of foot energy. Men working with the lever chest high, pulling down with their shoulders and arms, could use their total weight to the best advantage. If for some reason the force on the handle-lever with the cheater pipe on it is removed the 800 foot pounds of energy would be released. The use of the pipe introduces sevsral dangers : the pipe might become loose and slip; the arc would be larger, necessitating a change of position by the men swinging the pipe through the arc, with the possibility of their losing their grip or footing; the pipe is free to come loose if the pressure on the end of the pipe is released ; if so released, the area of danger is increased. The men choose the cheaters to be used, which come in different lengths, and determine how much pressure to exert on the binder to tighten the chain.

Plaintiff was familiar with load binders, especially this type, which are in general use in the trucking industry. He had daily experience for years in binding and unbinding loads. Plaintiff knew that the longer the arm the greater the leverage and the more force that is overcome; that by doubling the length of the arm the same tension can be overcome with one half the force, and if quadrupled, only one quarter of the force would overcome the same resistance; that the further you bring the lever over the more resistance is built up in the handle. Plaintiff knew that “this thing was under tension and under pressure * * * and if you gave up on the thing, it could come back”; that the more tension it is under the more violently it will fly back, and if someone is leaning on it and it is released “it is going to come back” and “they are going to get hurt,” and that he was aware of these characteristics and knew this on the day of the accident and up to the very instant of the accident. Plaintiff had no information about the “statistics” involved, or the technical considerations; precisely what mechanical advantage the device afforded or his own capacity applying force to the lever, or of the force stored and how that force would be affected by the use of the cheater pipe, but he did know that “when she springs open she springs open with a terrific force; if the pipe would come off she would come out like a bullet, maybe sail half-way up the block * * *.”

When the load binder was first closed the chain was still too slack. After going up to the next link plaintiff and Macklin got on opposite sides of the handle and attempted to close the load binder. The chain ran vertically up the side of the load. A 30-inch-long cheater pipe was placed on the handle-lever and slipped almost to the bottom of it — about 8 or 10 inches — thus increasing the length of the handle-lever to 20-22 inches. Plaintiff and Macklin, using their hands, pushed down on the pipe. The lever was almost to the breaking point when the accident happened. Just before it happened, and when the handle-lever was “almost to the breaking point,” plaintiff told Macklin to get his head out of the way “before it tears it off.” The men exerted and used up all of their strength and energy, but it was too much strain for them to pull the handle-lever down all the way, and the tension on the binder overcame them. There was so much tension that the pipe turned sideways and came up, striking plaintiff on the side of the face, inflicting very serious injuries. The chain did not break. The load did not shift. The load binder did not break. None of the parts gave way. There was no structural failure. The men did not let go, nor did they lose their footing. The pipe extension was seated firmly, and did not slip. The pipe extension did not come off the handle, but remained over the handle, perfectly tight at all times, just as if it were a part of the handle. After the accident Macklin and another man put a longer cheater pipe (a 6-foot cheater) over the handle-lever of the binder, and using that additional leverage bound that same load for the trip.

Plaintiff offered to prove that there had been in common use in the trade a simple safety ratchet device, well-known in engineering circles and by manufacturers, which allows the storing of energy in a mechanical device such as a load binder, but which would prevent the sudden and complete release of the stored energy in the event the force was dissipated or no longer applied to the end of the handle-lever; that such a device could have been employed reasonably and effectively on this load binder; and that the use of such a safety device would have prevented the pipe from being released suddenly through its entire arc.

Plaintiff asserts that his evidence and the reasonable inferences therefrom present a jury issue as to whether the load binder when put to its intended use created a reasonable likelihood of substantial harm, thus creating a duty on defendant’s part to use reasonable care to avoid harm to plaintiff; that the imposition of a duty by the manufacturer to a user of its product does not depend upon whether the article is inherently dangerous (as implied in the circuit court’s ruling) but rather whether it is dangerous when applied to its intended use; that reasonable men could find that this product was dangerous when applied to its intended use in that “the forces which users of the product were dealing with were of sufficient magnitude and there were no safety devices to prevent the sudden release of these forces'in a manner endangering life and limb of the user.” Plaintiff says defendant was obligated to exercise ordinary care to eliminate the danger before exposing a user of its product to such risk, where the manufacturer had “knowledge of some potential danger.”

Plaintiff further asserts error in the court’s ruling that plaintiff is barred because he assumed the risk, contending that plaintiff’s conduct cannot bar him unless he voluntarily exposed himself to a known and appreciated danger, one glaringly obvious, thoroughly comprehended and appreciated, and that the conclusion must be inevitable that plaintiff freely consented, without constraint, to the risk.

Finally, plaintiff says the court erred in denying recovery on the ground that defendant’s product had no latent defect and that the lack of a safety ratchet was open and obvious.

This case is based upon negligence, not on breach of implied warranty. Plaintiff is a remote user of the product. Defendant is the manufacturer. There are no contractual relations between the parties. The defense is that there was no negligence, not that plaintiff cannot sue because of the lack of privity. This case comes under the exception to the requirement of privity of contract applicable to products dangerous because of the use to which they are to be put by whoever may use them for the purpose intended. Orr v. Shell Oil Co., 352 Mo. 288, 177 S.W.2d 608, 612[2] ; McLeod v. Linde Air Products Co., 318 Mo. 397, 1 S.W.2d 122; Hursh, American Law of Products Liability, Vol. 1, § 6:92, p. 714, fn. 16.

The manufacturer of a product which is potentially dangerous when applied to its intended use, Tayer v. York Ice Machinery Corp., 342 Mo. 912, 119 S.W.2d 240, or reasonably certain to place life and limb in peril when negligently made, Zesch v. Abrasive Co. of Philadelphia, 353 Mo. 558, 183 S.W.2d 140, 145, 156 A.L.R. 469; McLeod v. Linde Air Products Co., supra; Jacobs v. Frank Adams Electric Co., Mo. App., 97 S.W.2d 849; Restatement, Law of Torts, § 395, is under a duty to a remote user to exercise ordinary care in its manufacture, and is liable to a remote user injured thereby if the injury results from a latent defect bespeaking lack of ordinary care in making the product. Zesch v. Abrasive Co. of Philadelphia, supra (abrasive cutting-off wheel exploded); McLeod v. Linde Air Products Co., supra (clogged valve in an oxygen tank) ; McCormick v. Lowe & Campbell Athletic Goods Co., 235 Mo.App. 612, 144 S.W.2d 866 (bamboo vaulting pole broke); Jacobs v. Frank Adams Electric Co., supra (electric panel board exploded).

But the manufacturer is not liable as an insurer, and he is under no obligation to make the product accident proof or foolproof. Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P.2d 723, 726-727; Campo v. Scofield, 301 N.Y. 468, 95 N.E.2d 802, 804; Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34 N.W.2d 853, 858. Since practically any product, regardless of its type or design, is capable of producing injury when put to particular uses, “a manufacturer has no duty so to design his product as to render it wholly incapable of producing injury, * * Hursh, American Law of Products Liability, Vol. 1, § 2:59, p. 240. The manufacturer of a butcher knife, cleaver, or axe, properly made and free of latent defects and concealed dangers, may not be held liable merely because someone was injured while using the product. Thus a manufacturer is not liable to a man who while using an iron dumbbell drops it on his foot. Jamieson v. Woodward & Lothrop, 101 U.S.App.D.C. 32, 247 F.2d 23, cert. den. 355 U.S. 855, 78 S.Ct. 84, 2 L.Ed.2d 63.

The extent and limits of the duty of a manufacturer of a product dangerous because of the use to which it is to be applied depend upon the nature and character of the defect and of plaintiff’s knowledge thereof. As indicated by the Zesch, McLeod, McCormick and Jacobs cases, supra, the manufacturer may be held liable if the defect or danger is latent or concealed, but where the danger is open, obvious and apparent, or the user has actual knowledge of the defect or danger, there is no liability on the manufacturer. Parker v. Heasler Plumbing & Heating Co., Wyo.Sup., 388 P.2d 516, 518, and cases cited: Tyson v. Long Mfg. Co., (1959) 249 N.C. 557, 107 S.E.2d 170, 78 A.L.R.2d 588; Rosebrock v. General Electric Co., 236 N.Y. 227, 140 N. E. 571; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696. In Campo v. Scofield, supra, the New York Court of Appeals said: “Suffice it to note that, in cases dealing with a manufacturer’s liability for injuries to remote users, the stress has always been upon the duty of guarding against hidden defects and of giving notice of concealed dangers.” The duty of the manufacturer in such case is satisfied by the manufacture of a product which is free of latent defects and concealed dangers. The rule, stated as lately as January 24, 1964 by the Supreme Court of Wyoming, is that “ * * * [T]he manufacturer * * * of a machine, dangerous because of the way in which it functions, and patently so, owes to those who use it a duty merely to make it free from latent defects and concealed dangers. * * * Accordingly, if a remote user sues a manufacturer * * * for injuries suffered, he must allege and prove the existence of a latent defect or a danger not known to plaintiff or other users.” Parker v. Heasler Plumbing & Heating Co., supra, 388 P.2d 1. c. 518; Campo v. Scofield, Stevens v. Allis-Chalmers Mfg. Co., Yaun v. Allis-Chalmers Mfg. Co., Jamieson v. Woodward & Lothrop, supra; Harrist v. Spencer-Harris Tool Co., 244 Miss. 84, 140: So.2d 558; Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14; Standard Conveyor Co. v. Scott, 8 Cir., 221 F.2d 460; Messina v. Clark Equipment Co., 2 Cir., 263 F.2d 291.

If we assume by way of argument that the representations in the manufacturer’s literature made the cheater pipe an integral part of the load binder; that the use of a cheater pipe introduced the dangers we have noted and that such dangers were in addition to those inherent in the use of the binder without a cheater pipe, and that the possible dangers by the use of the cheater pipe were in the nature of concealed dangers, such assumptions still would not change the applicable principles or the result under the facts of this case. That is because plaintiff’s evidence clearly showed that the addition of the cheater pipe did not play any part in causing of the accident. As noted, the pipe did not slip but fitted tightly at all times as though it were an integral part of the load binder.

Is the rule as to latent defects and concealed dangers affected by plaintiff’s charge that defendant should have equipped the product with a safety ratchet to prevent “kick-back”? We think not in this case. A manufacturer is not obliged to adopt only those features which represent the ultimate in safety or design. Marker v. Universal Oil Products Co., 10 Cir., 250 F.2d 603; Mitchell v. Machinery Center Inc., (1961) 10 Cir., 297 F.2d 883, 886. A manufacturer is not under any duty “to provide a guard or other protective device to prevent injury from a patent peril or a source manifestly dangerous.” Hursh, American Law of Products Liability, Vol. 1, § 2:12, p. 133, citing Strickler v. Sloan, (1957) 127 Ind.App. 370, 141 N.E.2d 863. Accordingly, where the product is free of latent defects and concealed dangers; where the perilous nature of the product and the danger of using it is obvious and not concealed; where its normal functioning creates no danger not known to or appreciated by the user; where it is properly manufactured to accomplish the function for which it is designed, the manufacturer has “satisfied the law’s demands” and is under no duty to make it “more” safe by providing a built-in safety device. Campo v. Scofield, Harrist v. Spencer-Harris Tool Co., Kientz v. Carlton, Standard Conveyor Co. v. Scott, Stevens v. Allis-Chalmers Mfg. Co., Yaun v. Allis-Chalmers Mfg. Co., Jamieson v. Woodward & Lothrop, Messina v. Clark Equipment Co., supra.

Here the load binder was structurally sound. It did not disintegrate, break down, crack or fail. The perilous nature of the product was obvious and apparent to plaintiff; its lack of a safety ratchet was plain to be seen. Its use created no danger not known to and appreciated by plaintiff, an experienced trucker who had used load binders for years and knew and appreciated full well their dangerous characteristics and propensities. Plaintiff, with this knowledge and appreciation, cannot recover from the manufacturer simply because he was hurt through a mishap in the normal use of the load binder, which reacted in the normal and foreseeable manner anticipated by the user. To so rule would be to make an insurer of the manufacturer. The full measure of defendant’s duty was to manufacture a load binder structurally sound and free from any latent defect or concealed danger. The evidence-affirmatively shows that the device complied with these requirements. Plaintiff’s “injury through the medium of such an agency is neither a probable nor natural result of anything done or left undone by the maker.” Bohlen, Studies in the Law of Torts, (1926), p. 126.

Since plaintiff failed to show the existence or breach of any duty owed to this plaintiff we do not reach the question whether the court erred in ruling that plaintiff is barred because he assumed the risk.

Judgment affirmed.

COIL and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . See Morrow v. Caloric Appliance Corporation, Mo.Sup. (en banc), 372 S.W.2d 41, based on implied warranty of fitness and safety, in which it was held that privity of contract between the ultimate purchaser and the manufacturer need not be shown in the case of damage from a hidden defect in a manufactured product.


source: Caselaw Access Project

author: HOUSER, Commissioner. PER CURIAM.

license: Public Domain

text:
    Chester PAGE and Frances Page, His Wife, Appellants, v. The METROPOLITAN ST. LOUIS SEWER DISTRICT, a Municipal Corporation and Political Subdivision, Respondent.
    No. 50104.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.

      Librach, Heller, Byrne & Weber, William P. Byrne, St. Louis, for appellants.
    Thompson, Mitchell, Douglas & Neill, James M. Douglas, David F. Ulmer, St. Louis, for respondent, The Metropolitan St. Louis Sewer Dist.
   HOUSER, Commissioner.

This is an appeal from the judgment of the Circuit Court of the City of St. Louis sustaining the motion of Metropolitan St. Louis Sewer District, hereinafter “MSD,” to dismiss and dismissing the following petition filed against MSD by Chester and Frances Page:

“SECOND AMENDED PETITION FOR MANDATORY INJUNCTION.
“COUNT I.
“Plaintiffs, for Count I of their cause of action, state:
“1. That they are husband and wife and owners of a certain parcel of land known as Lot 58 of Robinwood subdivision known • and numbered as 705 Derhake Road, Floris-sant, Missouri.
“2. That the defendant is now and at all times hereinafter mentioned was a municipal corporation duly organized and existing under and by virtue of Law, with an office and place of business in the City of St. Louis, Missouri, and engaged in the business of constructing, supervising, maintaining, controlling and regulating sewers and ditches in and around the Metropolitan St. Louis area; that at all times hereinafter mentioned defendant controlled, supervised, maintained and regulated the hereinafter described drainage ditch.
“3. Plaintiffs further state that there is located adjacent to their said property a ditch used for drainage purposes, said ditch being an easement in and upon the property of these plaintiffs and their adjoining property owner, said easement being an easement of record in Book 3305, Page 603 in the Office of the Recorder of Deeds for St. Louis County, Missouri.
“4. Plaintiffs further state that since and before May 1960, said ditch has gradually and constantly widened and deepened causing the property of plaintiffs to crumble, collapse and wash away, thus diminishing the size of plaintiffs’ lot; that said ditch constituted a public nuisance, and private nuisance, is dangerous to the health and welfare of the residents of the community and to the plaintiffs; that water from said ditch constantly floods and overflows into and upon plaintiffs’ land and property; that these plaintiffs have been deprived of their right of lateral support for their property, and will in the future be deprived of their right of lateral support; that, to date, by virtue of being deprived of their right of lateral support, plaintiffs have been damaged in the sum of FOURTEEN THOUSAND FIVE HUNDRED DOLLARS ($14,500.00) that plaintiffs’ are thereby unable to rent said premises because of the conditions herein stated and will in the future incur continuing damages in the sum of ONE HUNDRED DOLLARS ($100.00) per month, and are in danger of suffering irreparable damage to their property if the conditions herein mentioned are allowed to exist; that, although defendant has long known of the aforesaid condition, it has willfully and wrongfully failed and refused to take any steps to remedy these conditions so as to prevent further collapse of ground and loss of property to these plaintiffs and a flooding of their land and property; although requested to do so; that plaintiffs have no adequate remedy at law.
“WHEREFORE, for Count I of their Petition, plaintiffs pray an order of this Court awarding them FOURTEEN THOUSAND FIVE HUNDRED AND NO/lOO DOLLARS ($14,500.00) damage for the loss of their property, and further, an order directing and requiring defendant to fill in said ditch and to build a retaining wall to provide plaintiffs with lateral support for their property, and for such further orders as this Court may deem just and proper, together with their costs expended herein.
“COUNT II.
“Plaintiff, CHESTER PAGE, for Count II of his Petition, states:
“1. Plaintiff hereby incorporates by reference all of the allegations of Count I, and further states:
“2. That all of the acts and omissions of Defendant which plaintiffs herein complain were performed and committed in a manner that was and is willful, wrongful, wanton, malicious, and inhuman.
“3. That by reason thereof, plaintiff, CHESTER PAGE has been caused great worry about the safety of his wife, his children, persons on and about said premises, himself and his property, and has suffered and will in the future suffer great mental pain and mental anguish, all to his damage in the sum of TWO THOUSAND DOLLARS ($2,000.00).
“WHEREFORE, plaintiff, CHESTER PAGE, prays judgment against defendant on Count II in the sum of TWO THOUSAND DOLLARS ($2,000.00).
“COUNT III.
“Plaintiff, FRANCES PAGE, for Count III of her Petition, states:
“1. Plaintiff hereby incorporates by reference all of the allegations of Count I, and further states :
“2. That all of the acts and omissions of Defendant which plaintiffs herein complain were performed and committed in a manner that was and is willful, wrongful, wanton, malicious, and inhuman.
“3. That by reason thereof, plaintiff FRANCES PAGE has been caused great worry about the safety of her husband, her children, persons on and about said premises, herself and her property, has suffered and in the future will continue to suffer great mental pain and mental an-quish; all to her damage in the sum of FIVE THOUSAND DOLLARS ($5,000.-00).
“WHEREFORE, plaintiff, FRANCES PAGE, prays judgment against defendant on Count III in the sum of FIVE THOUSAND DOLLARS ($5,000.00).”

MSD’s motion to dismiss alleged that the petition failed to state a claim upon which relief could be granted in that defendant is a political subdivision of the State of Missouri exercising governmental functions and is not subject to suit upon the claim stated in the petition. Following the dismissal of the petition plaintiffs appealed.

We have jurisdiction for the reason that the amount in dispute exceeds the sum of $15,000.

In support of its position that the court erred in sustaining the motion to dismiss on the theory of governmental immunity, appellants make four points:

I. That the Plan of MSD, page 1, Art. 1, § 1.010, establishing MSD, vests it with “power to * * * sue and be sued * Appellants contend this gives them the unqualified right, not modified elsewhere in the Plan, to maintain a suit against MSD.

II. That the maintenance of sewers is not a governmental function hut is a ministerial function for which a municipality may he liable in damages for negligence. The contention is that MSD assumed control over a natural watercourse and used it for drainage purposes with a resulting injury to them, thereby engaging in a ministerial function. They cite Lucas v. City of Louisiana, Mo.App., 173 S.W.2d 629, and Windle v. City of Springfield, 320 Mo. 459, 8 S.W.2d 61, in support of this contention.

III. That the doctrine of governmental immunity does not apply in a suit for damages resulting from the maintenance of a nuisance. Appellants cite Rodgers v. Kansas City, Mo.App., 327 S.W.2d 478; Windle v. City of Springfield, supra, and Bungenstock v. Nishnabotna Drainage Dist., 163 Mo. 198, 64 S.W.2d 149, on this point.

IV. That the dismissal of appellants’ petition amounts to a taking of private property for public use without just compensation, in violation of Article I, Section 26, Constitution of Missouri 1945, V.A.M.S., citing Bruntmeyer v. Squaw Creek Drainage Dist. No. 1, 196 Mo.App. 360, 194 S.W. 748.

The circuit court did not err in dismissing the petition on the ground of governmental immunity.

I.

Section 1.010 of the Plan, vesting MSD with the power to sue and be sued, does not authorize an action against it for damages for negligence or nuisance, because it contains no express agreement that MSD be liable on such claims. 81 C.J.S. States § 130, p. 1141, fn. 94. There is a marked difference between waiver of immunity of MSD from an action and waiver of immunity of MSD from liability for damages for the torts of its officers and agents. Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063; Bush v. State Highway Commission, 329 Mo. 843, 849, 46 S.W.2d 854, 856. An "authorizing” statute in this context would mean a statute which specifically provides for the payment of damages caused by the negligence, etc. of the officers and agents of MSD. Hill-Behan Lumber Co. v. State Highway Commission, 347 Mo. 671, 148 S.W.2d 499, 500. There is no such statute or constitutional provision.

II.

The defendant, a metropolitan sewer district organized for the purpose of providing adequate sewer and drainage facilities within its boundaries, established by vote of the people in the district pursuant to Article VI, Section 30 of the Constitution of Missouri, 1945, is a public corporation, (§ 1.010, Plan of the Metropolitan St. Louis Sewer District) exercising only governmental powers and engaging in the performance of purely governmental functions, clothed as such with the state’s immunity from tort liability, in the absence of express constitutional or statutory provisions to the contrary. State ex rel. Hausgen v. Allen, (en banc) 298 Mo. 448, 250 S.W. 905; City of Hardin v. Norborne Land Drainage Dist., 360 Mo. 1112, 232 S.W.2d 921; Anderson v. Inter-River Drainage and Levee Dist., 309 Mo. 189, 274 S.W. 448; Arnold v. Worth County Drainage Dist. No. 1, 209 Mo.App. 220, 234 S.W. 349; Tant v. Little River Drainage Dist., 210 Mo.App. 420, 238 S.W. 848. This is the general rule. 28 C.J.S. Drains § 51a, p. 389.

The argument that the maintenance of sewers is net a governmental but is a ministerial function for which a municipality may be liable in damages for negligence stands for disapproval, as applied to the instant facts. While in the broadest sense of the term a metropolitan sewer district is a municipal corporation it is not a municipal corporation in the restricted sense in which cities, towns and villages are so considered. Fort Osage Drainage Dist. of Jackson County v. Jackson County, Mo.Sup., 275 S.W.2d 326, 329; Cullor v. Jackson Township, Mo.Sup., 249 S.W.2d 393, 396; Hausgen v. Elsberry Drainage Dist., Mo.App., 245 S.W. 401, 404. Cities, towns and villages exercise both governmental and private, proprietary, ministerial functions, and sometimes are subjected to liability for negligence in connection with the exercise of the latter functions, as indicated by the cases cited by appellants. See the discussion in D’Arcourt v. Little River Drainage Dist., 212 Mo.App. 610, 245 S.W. 394, 396. MSD, which operates under the police power of the state in the interest of the public health, safety and welfare, see Drainage District No. 48 of Dunklin County v. Small, Mo.Sup., 318 S.W.2d 497, [5], 1. c. 502, is in effect an arm of the state exercising exclusively governmental functions. It has no private, proprietary functions to perform, State ex rel. Hausgen v. Allen, supra, and as a governmental agency or instrumentality is not liable for negligence in the maintenance, control and regulation of the sewers, ditches and drains under its jurisdiction any more than the state would be liable if it were maintaining them. The powers and responsibilities of MSD differ from those of cities, towns and villages, State ex rel. Hausgen v. Allen, supra, 250 S.W., 1. c. 907, [3]; Lamar v. Bolivar Special Road Dist., Mo.Sup., 201 S.W. 890; Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168, 1172. This serves to distinguish the cases of Lucas v. City of Louisiana and Windle v. City of Springfield, supra.

III.

Likewise for disapproval, and for the same reasons, is appellants’ contention that the doctrine of governmental immunity does not apply in a suit for damages resulting from the maintenance of a nuisance. MSD partakes of the state’s sovereignty with respect to tort liability for negligence and there is no logical reason why it should not enjoy the same immunity with respect to the tort of nuisance. Bingham v. Board of Education, 118 Utah 582, 223 P.2d 432; Buckholtz v. Hamilton County, 180 Tenn. 263, 174 S.W.2d 455; Braun v. Trustees of Victoria Independent School Dist., Tex. Civ.App., 114 S.W.2d 947. The cases cited by appellants, Rodgers v. Kansas City and Windle v. City of Springfield, supra, dealing as they do with the liability of cities and not with the liability of an arm of the state government which exercises strictly governmental functions, are not authority for appellants’ proposition. Bungenstock v. Nishnabotna Drainage Dist., 163 Mo. 198, 64 S.W. 149, is not controlling. The facts are different. In Bungenstock the lands damaged were located outside the district. There was an appropriation of land by way of condemnation, followed by further damages to the land as a result of negligence in the plans and negligent conduct in the additional work undertaken. As pointed out in State ex rel. Hausgen v. Allen, supra, 250 S.W., 1. c. 907, it was “not [so] much a question of negligence as it was the further appropriation of plaintiff’s property to a public use, without compensation.” Here appellants did not waive the tort, acquiesce in the taking and sue under the constitution on a theory of condemnation in reverse. To the contrary, their whole theory of the case is that of tort liability for consequential damages.

IV.

Appellants’ last point is that the dismissal of the petition amounts to a taking of private property for public use without just compensation. This point is not before us for review. It was not appellants’ position at the time they filed their petition that MSD maintained and controlled the ditch in such a manner as to violate their constitutional rights under Art. I, Section 26 of the constitution. The taking or damaging of appellants’ property for public use without just compensation was not referred to in the petition. In order to raise a constitutional question in the appellate court it is necessary to raise it at the earliest moment in the trial court, but this appellants did not do. It was not raised in any manner or at any stage in the trial court. It is a new issue, raised for the first time in appellants’ brief; an “afterthought on appeal.” City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372, 376, [6],

In their reply brief appellants raise another new point by their assertion there for the first time that a sewer district is not entitled to raise the defense of governmental immunity with respect to the other relief they seek, a mandatory injunction, and that they are entitled to a hearing on this phase of their petition. “Issues submitted in an appellant’s brief on original submission are not to be enlarged by presentations in a reply brief as a respondent is entitled to an opportunity to answer an issue presented by an appellant.” State ex rel. Houser v. St. Louis Union Trust Co., Mo.Sup., 248 S.W.2d 592, 594, and cases cited; Edwards v. Durham, Mo.Sup., 346 S.W.2d 90, 98.

In their reply brief appellants, for the first time on this appeal, also ask for a re-examination of the doctrine of governmental immunity, attacking it as an archaic vestige of the law of long ago, an ancient sham that should be wiped out, etc. The issues raised in the original brief are not thus to be enlarged, under the cases just cited. If and when the court undertakes to re-examine that doctrine it will be under circumstances where both sides have the opportunity to fully explore the subject in their briefs.

The record does not show that any error was committed by the trial court against the appellants, materially affecting the merits of the action, and therefore we affirm the judgment. In the interests of justice, however, considering the facts alleged in the petition, which indicate that appellants’ property was taken (or damaged) and that such taking or damage was inflicted by the state, for a public use, it is not amiss to-suggest the possibility of proceeding under the procedure sometimes referred to as condemnation in reverse or inverse condemnation, under the constitutional provision, Article I, Section 26, “That private property shall not be taken or damaged for public use without just compensation.” This provision is binding upon the state as well as others having the power of eminent domain, 29 C.J.S. Eminent Domain § 97, including drainage districts. Southwestern Bell Tel. Co. v. Drainage Dist. No. 5, 215 Mo.App. 456, 247 S.W. 494. While the state cannot be sued without its consent, and there is no statutory provision authorizing such suits, nevertheless, “if the injury alleged is a damage within the constitutional provision, that provision is self-enforcing.” Anderson v. Inter-River Drainage and Levee Dist., 309 Mo. 189, 274 S.W. 448, 455. The right of a property owner to recover compensation from a drainage district under the constitutional provision and the limitations of the right are recognized and stated in these cases: Anderson v. Inter-River Drainage and Levee Dist., supra, 274 S.W., 1. c. 455 [5]; Sigler v. Inter-River Drainage Dist., 311 Mo. 175, 279 S.W. 50; Millhouse v. Drainage Dist. No. 48, Mo.App., 304 S.W. 2d 54, 57; Bohannon v. Camden Bend Drainage Dist., 240 Mo.App. 492, 208 S.W.2d 794; Houck v. Little River Drainage Dist., 343 Mo. 28, 119 S.W.2d 826; Bruntmeyer v. Squaw Creek Drainage Dist. No. 1, 196 Mo.App. 360, 194 S.W. 748; Schalk v. Inter-River Drainage Dist., Mo.App., 226 S.W. 277; Southwestern Bell Tel. Co. v. Drainage Dist. No. 5, supra; Beetschen v. Shell Pipe Line Corp., Mo.App., 248 S.W.2d 66, 71, [5].

Judgment affirmed.

COIL and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLMAN, Judge.

text:
    MERCANTILE TRUST COMPANY, Sole Trustee Under the Will of Lena Muckerman, Deceased, (Plaintiff) Appellant, v. Richard I. C. MUCKERMAN, (Defendant) Respondent-Cross-Appellant, and Jeanne Clare Imbs, a Minor, and Joseph F. Imbs, III, a Minor, (Defendants) Respondents-Cross-Appellants.
    No. 49596.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.
    Thompson, Mitchell, Douglas & Neill, James M. Douglas, John O. Hichew, William G. Guerri, St. Louis, for appellant Mercantile Trust Co., sole trustee under will of Lena Muckerman, Deed.
    Rassieur, Long & Yawitz, Elliott P. Koenig, Allen A. Yoder, and Roger R. Fag-erberg, St. Louis, for respondent, Mucker-man.
    Guilfoil, Caruthers, Symington & Mon-trey, Rexford H. Caruthers, Gerhard J. Pet-zal1, St. Louis,' for defendants-respondents, cross-appellants.
   HOLMAN, Judge.

This case has recently come to the writer on reassignment. It is an action for a declaratory judgment by Mercantile Trust Company as sole successor trustee to the trust estate created by the last will of Lena Muckerman, deceased, in which it sought a construction of said will and particularly a determination as to the proper disposition to be made of the one-third share of the trust of which Richard C. Muckerman, deceased, had received the income during his life. Defendant, Dr. Richard I. C. Muckerman, contended that as the sole surviving child of Richard he was entitled to all of said share. The min- or defendants, Jeanne Clare Imbs and Joseph F. Imbs, III, contended that, as the surviving children of Richard’s daughter, Jeanne Imbs, deceased, they were entitled to one half of the share of the trust here involved. The trial court found that Dr. Muckerman was entitled to receive all of said trust assets. On the theory that the will was “clear, certain and definite,” the court concluded that plaintiff’s action in bringing this suit was “not proper” and plaintiff was therefore denied any allowance for attorney fees. An allowance of $7,500 out of the trust estate was made to the minor defendants as a reasonable fee for the services of their attorneys herein. All of the parties have appealed from the ensuing judgment. Their various contentions will be hereinafter stated and discussed. The value of the one-half share claimed by the minor defendants was $166,000 on February 15, 1961. We therefore have jurisdiction because of the amount in dispute.

The portion of the will relating to the trust is Article Third which reads as follows :

“All of the rest, residue and remainder of my property, real or personal, whatsoever and wheresoever, and by whatever title held, I give, bequeath and devise to my sons, Richard. C. Muckerman and Louis Muckerman, hereinafter called Trustees, IN TRUST, for the uses and purposes and for final disposition as hereinafter provided:
“Trustees shall pay to my mother, Anna Marie Jucker, during her life, out of the net income of my trust estate, two hundred dollars ($200.00) per month, and should such payments be inadequate for her support and proper care in case of sickness or other unforeseen misfortune to her, I direct my Trustees to make such additional payments to her or for her use out of such income as they may deem necessary or desirable.
“Trustees shall pay the remainder of such net income to my said four children, Richard, Louis, Helen and Josephine, or the survivors of them in equal shares and in equal monthly or quarter-annual installments as Trustees may determine.
“Page 1 of Exhibit ‘A’
“At the death of any one of my said four children (a) leaving descendants him or her surviving, the share of the net income which such child was receiving shall pass to and be expended by Trustees for the care, maintenance, support and benefit of such descendants until the youngest is twenty-one years of age when the trust as to such share shall terminate and the trust property shall pass in title absolute to such descendants, and (b) leaving no descendants him or her surviving, then the share of the net income which such child had been receiving shall pass to the then survivors of my said children. Provided, however, the surviving children of any deceased child of mine, anything herein to the contrary notwithstanding, shall take the same part or share of income and at the same dates that such deceased child of mine would have received such income if living, ■ and any share passing hereunder at any time to such' surviving children shall continue in trust until the youngest survivor of them is twenty-one years old or until they all die before that time when the trust as to their share shall terminate and the share shall pass (1) to them, if living, in title absolute; (2) otherwise to my then surviving children, if any, with this trust continuing thereover during their lives; and (3) otherwise to my heirs at law in title absolute.
“If the last survivor of my said four children should die leaving no child him or her surviving, and leaving no children of any previously deceased child of mine him or her surviving, then at his or her death the trust shall terminate and the trust property shall pass in title absolute to my heirs at law.
“The term ‘descendants’ as used herein shall be deemed to refer to and include only the children of a deceased child of mine. * * * ”

Lena Muckerman was the second wife of Ignatius M. Muckerman. To his first marriage were born two children — Helen, who is now married to Warren Beckwith, and Richard C. Muckerman, whose death on March 15, 1959, has brought about the institution of this suit. Richard C. had two children — Dr. Richard I. C. Muckerman, a defendant herein, and Jeanne Clare Imbs who was killed in an automobile accident March 2, 1955. As heretofore stated, she was survived by a son, Joseph F. Imbs, III, and a daughter, Jeanne Clare Imbs, both of whom are now minors and are represented in this action by their father, Joseph F. Imbs, II, who was appointed their guardian ad litem. To the marriage of Lena and Ignatius were born two children — a daughter, now Josephine M. Jud-kins, and a son Louis who died March 24, 1932, leaving a daughter named Diana. Lena’s mother, Anna Marie Jucker, died many years ago and the allowance to her out of the trust estate .is no longer of any consequence.

. The family history and the situation existing at the time testatrix made her will is shown by the deposition testimony of Helen M. Beckwith and Josephine M. Jud-kins (both of whom now live in California) which was offered by the minor defendants. Helen M. Beckwith testified that she married Russell T. Eggers in 1922 and that a son, William, was born of this marriage in 1926; that her father was Ignatius Muckerman and her stepmother was testatrix; that she was very young when Lena married her father and she lived in that family until she married; that all four children lived with Lena and Ignatius as a family and Lena treated all of the children as if they were her own and referred to all of them as her children. She stated that Ignatius died in 1921; that Lena became ill with cancer and entered the hospital in early January 1930 and died March 4, 1930, at the age of 53 (it was admitted in the pleadings that Lena died February 4, 1930) ; that at the time of her death Lena had three grandchildren — William Eggers who was about four years of age, defendant Richard I. C. Muckerman who was eight years of age, and Jeanne Muckerman who was six years of age. Mrs. Beckwith further testified that her former husband, Russell Eggers, had been married before and had two children, Carter and Mary Jane, by that marriage but that those two children had lived with Eggers’ former wife; that Lena and Ignatius were of the Catholic faith and that she had been raised a Catholic; that Eggers was a Protestant; that Lena knew of the two children bom of Eggers’ first marriage but they never visited in her home; that she was not divorced from Russell Eggers until after Lena’s death. She stated that Lena was fond of Richard and Jeanne Muckerman and they often visited in her home; that the Muck-erman family would have family gatherings at either the home of Lena or Richard at Christmas, Thanksgiving, and on other special occasions.

Josephine M. Judkins testified that she was 16 at the time of Lena’s death; that she was a child of Lena and Ignatius; that Lena displayed equal love for her children and stepchildren, all of whom lived together in her home; that Lena displayed normal affection for her grandchildren, Richard and Jeanne Muckerman. She stated that Lena disapproved of the marriage between Helen Muckerman and Russell Eggers because Eggers was divorced and also “his reputation”, but that she later became reconciled to the marriage and accepted their child William as a grandson; that at the time of her death Lena’s only relatives were her mother and her children and grandchildren.

Before stating the contentions of the parties and considering the merits of the controversy it would perhaps be helpful to endeavor to analyze the trust provisions. It is clear that the net income is to be paid to the children of testatrix in equal shares during their lifetimes. If a child die leaving descendants the income shall be paid to his descendants until the youngest is 21 years of age when the trust shall terminate as to such trust share and the trust property shall be delivered to such •descendants. However, the word “descend•ants” is thereafter stated to refer only to '“children of a deceased child of mine.” It is then provided that if any child die without leaving descendants the income which he has been receiving shall “pass to” testatrix’ other surviving children. Next is an extensive proviso. (It will be noted that the word “descendants” does not appear in the remainder of the trust provision.) The proviso is to some extent a restatement of prior provisions. It states that the surviving children of a “deceased child of mine” shall receive the same share of income that the deceased child would have received if living and that the share shall continue in trust until the youngest survivor shall become 21 years of age, or until they all die before that time, at which time the trust shall terminate as to "such share and the shares shall pass (1) to such survivors if living, (2) otherwise to the surviving children of testatrix with the trust continuing during their lives, and (3) otherwise to the heirs at law of testatrix in title absolute. The next paragraph provides that if the last survivor of the four children of testatrix shall die leaving no children surviving, and if there are no surviving children of the other deceased children of testatrix, then the trust shall terminate and the trust property shall pass to her heirs at law.

As heretofore indicated, the question for decision is whether Dr. Muckerman as the only surviving child of Richard, deceased, should receive the entire trust share here involved or whether the children of Dr. Muckerman’s deceased sister should receive one half thereof.

In the construction of wills our primary duty is to determine “the true intent and meaning of the testator.” Section 474.430, RSMo 1959, V.A.M.S. “All technical rules of construction are subservient to the paramount rule that the intention of the testator shall control unless it violates some established rule of law. Legg v. Wagner, Mo.Sup., 155 S.W.2d 146. In performing our task we must consider the will as a whole and not give undue preference to any particular clause. ‘When the intent of the testator is found, the proper construction of the will is solved.’ McMillan v. Barnard Free Skin & Cancer Hospital, 304 Mo. 635, 264 S.W. 410, 413. Moreover, we are mindful that ‘The infinite variety of expressions and the differing shades of meaning so often attached to identical words or phrases when employed by the makers of wills in a context and under circumstances peculiar to the context of the will of each testator and the circumstances under which it was written make prior decisions construing similar words or phrases of far less value as precedent than those of other fields of litigated controversies.’ Hereford v. Unknown Heirs, etc., 365 Mo. 1048, 292 S.W.2d 289, 293.” Commerce Trust Company v. Weed, Mo.Sup., 318 S.W.2d 289, 294. We must also bear in mind that it is the function of a court to construe the will and not to write a new will for the testator under the guise of construction.

Much of the material in the briefs relate to the following provision in the will: “The term ‘descendants’ as used herein shall be deemed to refer to and include only the children of a deceased child of mine.” Dr. Muckerman contends that when the will is considered as a whole, and the quoted definitional sentence given effect, it is not ambiguous hut clearly states the intent of the testatrix to the effect that upon the death of one of her children his share of the trust assets shall go to his child or children only. On the other hand, the minor defendants contend that the will is ambiguous and that when it is considered in connection with the surrounding circumstances the court should conclude that the purpose of the definitional clause was not to limit “descendants” to children of testatrix’ children but to exclude the stepchildren of Helen (Eg-gers) Beckwith and other collaterals, as well as insuring a per stirpes distribution of the trust assets.

We have carefully considered the entire will and have concluded that testatrix intended (except for provisions for distribution to her heirs at law upon failure of other takers) to limit the beneficiaries of her trust to her children and grandchildren. However, we hasten to add that we have found the question presented to be a difficult one to decide and hence we do not agree with the conclusion of the trial court that the provisions “are clear, certain, definite and admit of no doubt * *

In our consideration of the contentions of the minor defendants we note at the outset that testatrix has not always used words in her will in accordance with their exact meaning. For example, throughout the will she refers to the four children as “my children” when, as a matter of fact, two of them were her stepchildren. Also, the paragraph which provides for the disposition of the trust upon the death of one of testatrix’ children refers only to descendants in the portion preceding the proviscr;-“Descendant” has been defined as “one who < is descended from another; a person who-’ proceeds from the body of another, sueffi as a child, grandchild, etc., to the remotest degree.” Black’s Law Dictionary, Fourth Ed. If that portion of the will were considered alone there would be no question but that Jeanne’s children would be beneficiaries. However, as heretofore stated, at the end of the trust-creating portion of the will there appears the sentence which purports to define “descendants” in a manner much different from its usual meaning. It is difficult for us to understand why a skilled draftsman would describe the beneficiaries in that manner. If the definitional clause is given effect it would appear that wherever the word “descendants” appears the word “children” was actually intended. If so, why wasn’t the word “children” used instead of descendants? Why use the wrong word and then-at the end say that that word shall be deemed to mean something entirely different?

In view of the foregoing we were at first inclined to believe that the definitional sentence was placed in the will for some other reason and that it was not intended that it should limit the beneficiaries to those no more remote than the grandchildren of testatrix. Nothing in the will or in the testimony indicates any reason why testatrix would have wanted to exclude her great grandchildren from the benefits of her trust. Moreover, since testatrix always regarded her stepchildren as though they were her children, it is reasonable to assume that she may have thought Helen’s stepchildren would be regarded as her (Helen’s) children, and she may have erroneously considered that the definitional clause was necessary in order to exclude them from the class of trust beneficiaries. We are also mindful of the rule that “[w]hile it is true in a strict grammatical sense that the term ‘children’ does not necessarily include others than the immediate offspring of the testator, yet it may acquire contextually a broader meaning and include grandchildren, if such was the evident intent of the will-maker as ascertained from a consideration of the conditions and circumstances of the execution of the instrument and the motive and purpose expressed in its language.” Peak v. Peak, Mo.Sup., 195 S.W. 993, 994. As indicated, however, the word “children,” as used in a will, “is usually given its primary meaning of legitimate offspring of the first degree, and does not include more descendants, unless there is something in the context of the will which manifests an intention on the part of the testator, to give it a more extensive meaning.” St. Louis Union Trust Co. v. Kelley, 355 Mo. 924, 199 S.W.2d 344, 349.

While, as stated, we tentatively had considerable doubt concerning the effect to be given the definitional sentence, that doubt has been dispelled by a careful analysis of that part of Article Third beginning with the proviso. In that portion of the will there are many references to the surviving children of testatrix' deceased children and when such references are considered in connection with the definitional sentence we do not think it can reasonably be said that any progeny more remote than testatrix’ grandchildren were intended to be included as specific beneficiaries. It is therein provided that upon termination of the trust as to the share of any of her children said share shall pass to his surviving children, if any, otherwise (in trust) to testatrix’ children that are still living. If her last surviving child die without any children surviving, apparently that share would go to the surviving children of previously deceased children of testatrix, if any, otherwise to the heirs at law of testatrix.

If testatrix had intended that the share of her deceased children go to the lineal descendants of said child, surely, in making the detailed provisions beginning with the proviso which we have heretofore discussed, she would have said something to specifically indicate that intent. As stated, we do not see any reason why she desired to exclude her great grandchildren, but that is not a matter for us to determine. It was her property to do with as she chose, and whether she had a good reason for the provisions of her will is not for the courts to decide.

A somewhat similar situation existed in the case of Grenzebach v. Grenzebach, 315 Mo. 392, 286 S.W. 79. There the testator’s will provided for a life estate in his wife, and upon the decease or second marriage of his wife it was to go to such of his lawful children as should be living at that time, to be divided in equal parts. It was held that the children of deceased children of testator were excluded.

In view of what we have heretofore said, we see no reason for extending this opinion by discussing the suggestion that the definitional sentence was inserted in the will for the sole purpose of insuring that the shares be distributed per stirpes. We consider it to be without merit.

As heretofore indicated, we rule that the portion of the judgment to the effect that Dr. Richard I. C. Muckerman shall receive the trusts assets here involved, after payment of expenses, should be affirmed.

Plaintiff has appealed from that part of the judgment in which the court refused to make an allowance out of the trust estate for counsel fees and in which the court costs were assessed against it. We are clearly of the opinion that the will was sufficiently ambiguous to warrant the trustee in bringing this declaratory judgment action in order to settle the controversy. In that situation plaintiff trustee is entitled to a reasonable allowance out of the trust estate for counsel fees. City of St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425; Kingston v. St. Louis Union Trust Co., 348 Mo. 448, 154 S.W.2d 39.

We are asked to allow plaintiff a reasonable fee for the work of its attorneys in this matter, including the services rendered on this appeal. One of plaintiff’s attorneys testified at the trial that counsel had spent 538 hours in workinsr on the case and he expressed the opinion that a fee of $10,000 would be reasonable for those services. We are reasonably familiar with the value of the services rendered upon the appeal. We have concluded that a reasonable allowance to plaintiff for all counsel fees in this matter would be $12,500. The court costs should, of course, be ordered paid out of the trust estate.

Dr. Muckerman has appealed from the allowance of counsel fees in the sum of $7,500 to the minor defendants. In that connection, said defendants here complain that the allowance for services in the trial court was not sufficient and they request that we make a de novo allowance of a reasonable attorney fee which will include services in the trial court and on appeal. On the last day of the trial one of their attorneys testified that counsel had spent 325 hours working on the case until that time. They have carefully and vigorously presented the matter in this court. We have concluded that the work of counsel for the minor defendants has been of considerable assistance to the trustee and to the court in bringing about a determination of the dispute over the devolution of the trust assets here involved. A part of those services involved a trip by counsel to California in order to take the depositions of Helen Beckwith and Josephine Judkins. We are therefore of the opinion that the trial court did not err in making a reasonable allowance for the counsel fees of said defendants. Bernheimer v. First Nat. Bank of Kansas City, 359 Mo. 1119, 225 S.W.2d 745; Garrison v. Garrison, 354 Mo. 62, 188 S.W.2d 644; Nelson v. Mercantile Trust Company, Mo.Sup., 335 S.W.2d 167; Lang v. Taussig, Mo.App., 194 S.W.2d 743; Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104 [1], We affirm the allowance of $7,500 for services rendered prior to the appeal. It is our view that an additional allowance of $2,500 should be made for briefing and arguing the case here.

The judgment relating to the construction of the will and a partial allowance for counsel fees is affirmed. In other respects the judgment is reversed and cause remanded with directions to enter further orders and judgments in regard to allowances for attorney fees and the assessment of court costs in accordance with the views herein expressed.

All concur.


author: COIL, Commissioner. PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Sam Junior VIRGILITO, Defendant, The Summit Fidelity and Surety Company, Appellant.
    No. 50349.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.

      •O. R. Newcomer, St. Joseph, for appellant.
    Thomas F. Eagleton, Atty. Gen., Clyde Burch, Asst. Atty. Gen., Jefferson City, for respondent.
   COIL, Commissioner.

On November 30, 1957, Sam Virgilito, who theretofore had been charged with a felony and had been bound over to await the action of the Circuit Court of DeKalb County, and The Summit Fidelity and Surety Company, a foreign insurance company located in Akron, Ohio, as surety, executed a bond to the State of Missouri in the penal sum of $2,500 upon these conditions: “NOW THEREFORE, if the said defendant shall personally be and appear in the Circuit Court on the S.V. 20th day of January 1958 and from time to time thereafter as he may be required by order of said court to answer the charge against him, for said offense not thence to depart without leave, for trial and all other proceedings herein, including the rendition of final judgment and sentence and if he shall abide and submit himself to the orders, judgment, sentence and process of said court, and if said cause be removed from said court by change of venue, shall personally be and appear before the court to which said cause shall be removed, at a time to be specified in the order of the court which it is removed and thereafter from time to time as he may be required by order of said court to which the cause is removed, not thence to depart without leave, for trial and all other proceedings herein, including the rendition of final judgment and sentence and shall abide and submit himself to the orders, judgment, sentence and process of said court, then this bond will be null, void and of no effect, otherwise to remain in full force and effect in accordance with law,” and the surety further agreed as follows: “and all sureties herein submit themselves to the jurisdiction of the said court in which such indictment may be found or information filed and to any other court to which said cause may be removed by change of venue, and irrevocably appoint the Clerk or Clerks of said court or courts as their agent upon whom may be served for them all notices, motions, pleadings and process concerning the forfeiture of this bond.”

On April 21, 1958, the trial court made this entry: “This cause coming on regularly for hearing, defendant appears not.” Thereafter the words “caused passed” were entered of record by the court on April 20, 1959, October 10, 1960, and January 16, 1961. On October 9, 1961, the state, through the DeKalb County prosecuting attorney, filed its motion seeking a judgment of default upon the bond heretofore described for the reasons that by the terms of the bond defendant was required to appear in court on the first day of the regular January 1958 term of court on January 21, 1958; that defendant failed to then appear and had since failed to appear and thereby had breached the conditions of the bond. The transcript contains a copy of a notice to the defendant and to surety’s attorney in fact (who, by documents appearing in the transcript, was the duly constituted and appointed attorney in fact for surety), that the court would hear the state’s motion for a default judgment on the bond at 9:30 a. m. on October 30, 1961. Also on October 9, 1961, the court entered an “order of forfeiture” wherein it was recited that in accordance with the terms and conditions of the bond Virgilito was required to appear in court on the first day of the regular January 1958 term on January 21, 1958, and that he did not appear on that date nor has he appeared since upon the first day of any regular term or on any other day, and that on January 21, 1958, the court had ordered the forfeiture of the bond, and the court therefore ordered, adjudged, and decreed that the bond executed as aforesaid “be and the same is hereby ordered forfeited.”

On October 30, 1961, the cause was passed to December 14, 1961, at the request of counsel for Virgilito and on December 14, by agreement, a hearing on the motion was continued to January 15, 1962. On December 29; 1961, appellant, sometimes herein called surety, appeared specially and filed: its amended motion “To Dismiss Action To* Forfeit Recognizance.” Thereafter, on: June 17, 1963, surety appeared specially and by leave filed another motion “To Dismiss State’s Action Herein To Forfeit Bond,” etc. In that motion the surety stated, inter alia, that a copy of the state’s motion filed on October 9, 1961, was in fact mailed to it by mailing said copy to its attorney in fact in Omaha, Nebraska, on October 10, 1961, and surety was thereby notified that said motion would be heard on October 30, 1961. On July 22, 1963, the-court found that the state’s motion for judgment on the bond should be sustained' and defendant-surety’s motion to set aside-the forfeiture of the bond should be overruled, and on that same day entered its-order that plaintiff have judgment against Virgilito and The Summit Fidelity and! Surety Company in the sum of $2,500 with, interest thereon.

Surety has appealed from that judgment: and contends the trial court erred in overruling its motion to dismiss for the reason that the court had no jurisdiction over surety’s person or property because no lawful service of “process,” i. e., the “State’s Motion for Judgment for default against surety, a foreign surety insurance corporation licensed to transact business” in Missouri was had; and contends further that the action for a judgment of default on the bond was barred by the 3-year statute of limitations, Section 516.130. We have jurisdiction because this is a civil action to which the state is a party. Article V, Section 3, Missouri Constitution, V.A.M.S.

We shall first consider the limitations question. Section 516.130 provides hr. pertinent part that an “action upon a statute-for a penalty or forfeiture, where the action is given to the party aggrieved', or to such party and the state” shall be brought within three years. The provisions- of. that section are made applicable to actions brought by the state by Section 516.360.

Appellant contends the 3-year statute applies for the reason that the state was the party aggrieved and the action was one “upon a statute for a forfeiture.” The state contends the 10-year statute of limitations applies, Section 516.110, which provides in part that an action upon any writing for the payment of money shall be brought within ten years.

We are of the view that for the reasons hereinafter set forth the state is correct in its contention and the 10-year statute of limitations applies.

It is true, as appellant contends, that the bond given in this case provided for the payment of a penalty or penal sum by the surety upon a breach of the conditions of the bond and subsequent forfeiture thereof, but, as we shall hereinafter point out, that fact is not decisive of the question whether the three or 10-year statute applies.

The bond constituted a contract whereby the surety agreed that the defendant would be present for certain court proceedings and agreed further that if he wasn’t, the surety would pay to the state the sum therein specified. It has long been held that while an action to forfeit such a bond grows out of a criminal proceedings and is based thereon, a proceedings for a judgment on the bond is a civil action “pure and simple, and should be dealt with accordingly.” See State v. Gross, 306 Mo. 1, 275 S.W. 769, which, in effect, adopted the dissenting opinion in the prior case of State v. Wilson, 265 Mo. 1, 175 S.W. 603, 609, and, of course, overruled the majority opinion in Wilson.

Specifically, the 3-year statute of limitations is not applicable because “The term[s] ‘penalties’ and ‘forfeitures,’ as used in the various statutes of limitation, have been construed to have reference to those created by statute alone, and inflicted for dereliction of duty, or failure to perform specific acts, or for the commission of acts prohibited by statute.” Vroom v. Thompson, 227 Mo.App. 531, 55 S.W.2d 1024, 1026

See also 53 C.J.S. Limitations of Actions § 89, pp. 1059, 1060; 8 Am.Jur. 2d, Bail and Recognizance, § 147, pp. 863, 864. Vroom v. Thompson, supra, was an action by a depositor against a bank director to recover the balance of a deposit which, it was alleged, the director knew or should have known was received by the bank after it was insolvent. In holding that the 3-year statute of limitations applied because the statute itself had created the penalty which the depositor sought to enforce, the court pointed out that the 1875 Constitution provided in Section 27, Article XII: “ ‘It shall be a crime, the nature and punishment of which shall be prescribed by law, for any * * * director * ‡ * or other officer of any banking institution, to assent to the reception of deposits * * * by such banking institution, after he shall have had knowledge of the fact that it is insolvent, or in failing circumstances; and any such officer ’* * * shall be individually responsible for such deposits so received * * * with his assent.’ (Italics ours.)” 55 S.W.2d 1025. The court then pointed out that the foregoing constitutional provision was not self-'enforcing and consequently a law was required to prescribe the penalty and the manner of its enforcement; that the legislature in 1877 enacted present Section 362.345, providing in pertinent part that a director should not receive or consent to the reception of deposits after he had knowledge of the bank’s insolvency or failing circumstances and that anyone “violating the provisions of this section shall be individually responsible for such deposits so received * * Thus the court concluded the statute enacted pursuant to the above-noted constitutional provision had itself created the “penalty” giving rise to the depositor’s claim and thus the depositor’s action was one “upon a statute for a penalty” and therefore governed by Section 516.130, the 3-year statute of limitations.

In the present case the constitutional provision involved is a part of the Bill of Rights, Article I, Section 20, by which bail ds guaranteed. That section provides “all persons shall be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great.” Unlike the situation in Vroom v. Thompson, supra, the pertinent statutes (certain sections of Chapter 544, RSMo 1959, and V.A.M.S.) and certain Supreme Court Criminal Rules (here involved are Rules 32.05 and 32.12) V.A.M.R., which provide procedures for the implementation of the above-quoted constitutional guarantee, do not purport to and do not create a penalty or a forfeiture. The sole function of those statutes and those rules is to prescribe procedures for the enforcement of contractual provisions of a bond in a civil action.

Thus it is that we reached the conclusion stated heretofore, that the 3-year statute of limitations, Section 516.130, is not applicable and that the 10-year statute, Section 516.110, applies.

We next consider appellant’s- contention that the circuit court was without jurisdiction over its person or property because no lawful service of the motion for a judgment of default was obtained. That contention is based upon two propositions: first, that the state was bound to have forfeited the bond and to have proceeded to a final judgment by scire facias under the provisions of Sections 544.640 and 544.650 and, second, that Section 375.210 provides “the sole and exclusive method for service of lawful process on licensed foreign insurance companies” and, consequently, the state’s motion for judgment of default (the “process”) must have been served upon the superintendent of insurance in accordance with that section to have given the trial court jurisdiction over the person or property of surety. Both those contentions ignore the fact that Supreme Court Criminal Rule 32 titled “Bail and Sureties” provides the procedure pursued by the state in this case. Criminal Rule 32.05, prescribing the conditions of the bond to be executed, provides in pertinent part:

“(c) If a person is admitted to bail after . 'he has been bound over to answer a charge, or after an indictment has been found or an information filed against him, the condition of his bond shall be that he will appear in the court in which an indictment or information has been or may be found or filed against him, at a stipulated time and from time to time as required by the court, to answer the charge; that he will submit himself to the orders, judgment, sentence and process of the court having jurisdiction to try such offense, either originally or upon change of venue; and that he will not depart without leave.” C.R. 32.05(c), V.A. M.R.

Criminal Rule 32.12 provides the procedure for obtaining a default judgment upon a bond which has been forfeited because of a breach of a condition thereof. ■ That rule provides:

“If there is a breach of condition of a bond, the court in which a criminal case or proceeding is then pending shall declare a forfeiture of the bail. The court may direct that a forefeiture be set aside, upon such conditions as the court may impose, if it appears that justice does not require the enforcement of the forfeiture. When a forfeiture has not been set aside, the court shall on motion enter a judgment of default and execution may issue thereon. By entering into a bond the obligors submit to the jurisdiction of the court in which the defendant is required to appear under the condition thereof and in which a prosecution is or may be pending against the defendant and irrevocably appoint the clerk of the court as their agent upon whom any papers affecting their liability may be served. Their liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk of the court, who shall forthwith mail copies to the obligors to their last known addresses.”

It is admitted that appellant received a notice provided for in the above rule, in that its attorney in fact, located in Omaha, Nebraska, who had executed the bond on behalf of the surety with the specific authority of the surety, was notified by a notice mailed by the circuit clerk on October 10 of the fact that the state’s motion for a judgment of default would be heard on October 30, 1961.

We have held heretofore that while independent actions' by scire facias to enforce liability on recognizance bonds are not prohibited by C.R. 32.12, such independent actions are no longer necessary and that liability on such bonds may be enforced in accordance with the provisions of that rule. State v. Haverstick, Mo., 326 S.W.2d 92, 95 [2].

It follows that inasmuch as the state proceeded to a default judgment in the present case under the provisions of C.R. 32.12, and inasmuch as appellant-surety specifically agreed in its contract, heretofore set out, that it submitted itself to the jurisdiction of the circuit court and irrevocably appointed the clerk of that court as its agent upon whom all notices, motions, pleadings, and process concerning the forfeiture of the bond might be served, and inasmuch as surety admitted that it received a notice from the circuit clerk that the state’s motion for judgment by default would be heard on October 30; 1961, and thereafter, although appearing specially, demonstrated that it did in fact have notice of the hearing, we are convinced that the provisions of Section 375.210 (providing the method by which process shall be served on a foreign insurance company) have no decisive effect in this case.

. We know of no reason why appellant-surety did not (by reason of its specific agreement contained in the bond) validly contract with the State of Missouri that in the event a condition of the bond was breached, the clerk of the court in which the action was pending was surety’s agent for the receipt of notices, motions, pleadings, and process. By specifically agreeing in the bond that the circuit clerk was its agfent for service, surety will 'not be heard "in this-'civil action by the state on the contract provisions of the bond, to say that it must have been served pursuant to the provisions of Section 375.210. Certainly, if surety had appeared generally or had specifically waived the necessity for the service of any process, it would be clear that compliance with the service provisions of Section 375.210 was unnecessary. State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28, 37 [8-12], 85 A.L.R. 1378; Henneke v. Strack, Mo.App., 101 S.W.2d 743, 746 [12], In so far as surety’s rights are concerned in this action, we perceive no decisive difference between a specific waiver of service of all process and the specific agreement that service could be effected as provided in the bond which contained provisions specifically providing for the obligations of a surety as set forth in C.R. 32.12. We do not reach any question pertaining to the construction or effect of the provisions of Section 375.210-in other situations; we simply hold that the provisions of Section 375.210 are irrelevant to the decision of any present question.

The appellant in its original brief did not contend that Rule 32.12 is inapplicable because it modifies or changes the substantive rights of a foreign insurance company ; nor did it make any other contention that the rule is not within the purview of Article V, Section 5, 1945 Missouri Constitution, which gives the supreme court the power to “establish rules of practice and procedure for all courts.” There is included in that constitutional provision a prohibition against changing substantive rights by rule. But appellant is not only barred from making the contention that Rule 32.12' changes substantive rights for the first time on appeal in its reply brief, but it seems, clear enough, in any event, that the rule in question, at least in so far as it applies to the present fact situation, deals solely with procedural matters. See In Re Moore, Mo. App., 282 S.W.2d 856, 860 [8].

Appellant also contends in its reply-brief, also not covered in the original brief,, .that the transcript shows there was in.fact no breach of the condition of the bond. That is because, says appellant, the record does not show that the court ever noted that defendant was not present on January 20, 1958, as required by the bond, or that the court ever thereafter made any order requiring defendant to be present on any subsequent date; and further that the trial court did not in fact order the bond forfeited on January 21, 1958, as recited in the court’s order of forfeiture entered on October 9, 1961. Assignments of error first set forth in a reply brief do not present issues for appellate review. In re Buder’s Estate, Mo., 317 S.W.2d 828, 827 [4, 5],

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.

      . All section citations refer to sections of jRSMo 1959 and V.A.M.S.


author: ( HYDE, Presiding Judge.

text:
    Annie Alice EMBRY, Plaintiff-Appellant, v. ESTATE of Charles W. MARTZ, Herbert A. Mouse, Administrator, Defendant-Respondent.
    No. 50084.
    Supreme Court of Missouri, Division No. 1.
    April 13, 1964.

      Robert G. Oberlander, Kuraner, Freeman, Kuraner, Oberlander & Lamkin, Kansas City, and George T. Sweitzer, Jr., Harrison-ville, for appellant.
    Belisle & McNabb, H. H. McNabb, Jr, Butler, Poague, Brock & Wall, Barkley M. Brock, Clinton, for respondent.
   ( HYDE, Presiding Judge.

Plaintiff’s claim for services was filed in the Probate Court of Bates County .but transferred to the Circuit Court as authorized by Section 473.420, subd. 2. (Statutory references are to RSMo and V.A.M. S.) After verdict and judgment for plaintiff for $25,000.00, the court granted a new trial on defendant’s motion and plaintiff has appealed.

The court’s order stated that it sustained the motion “for error .committed by Court in admitting in evidence over objection of defendant deposition of Mervin Embry, spouse of claimant, and in reading to jury Instruction No. 1 offered by Claimant.”

The case was submitted on the following verdict-directing instructions ' given at the request of each party.

Instruction No. 1: “The Court instructs the jury under the law of Missouri, that, absent a family relationship, where one performs valuable services for another, the benefit of which has been received and enjoyed by him, the law presumes an intention on the part of the former to charge and the latter to pay the reasonable value thereof and implies a promise on the part of the one receiving the services to pay a reasonable value for said services.

“Therefore the Court instructs the jury if you find and believe from the credible evidence that Annie, Alice Embry from 1946 to the death of Charles Martz, in February, 1962, rendered to Charles Martz, now deceased, services in cleaning his house, in helping to maintain his house, in washing and ironing his clothes, in mending his clothes, in laundering his bed linens, in cooking and serving his meals, in attending his needs when sick, in helping him in his bookkeeping, in taking him to the doctor, in helping him in his correspondence, in procuring groceries and household supplies, and in assisting in selecting his clothing, if so, and if you further find that at the time such services, if so, were performed that Charles Martz accepted the benefits of said services, if he did, then your verdict will be for Annie Alice Em-bry in such sum as you believe from the evidence such services are reasonably worth, not to exceed $25,000.00.”

Instruction No. 3: “You are instructed that where services are rendered and received, a contract of hiring, or obligation to pay, will be presumed; but a presumption may arise from the relationship of the parties that the services rendered are acts of gratuitous kindness, and in this case it is a question for you, taking into consideration all the circumstances, including the nature of the relationship of the parties, to determine whether there was any implied or express contract for compensation or not.

“Now, unless you find from the evidence in this case that plaintiff rendered services to Charles W. Martz, and that at the time such services were rendered Annie Alice Embry intended to make a charge therefor and to receive compensation from the said Charles W. Martz over and above any benefits she may have received, if any you so find, from the said Charles W. Martz, then you will find the issues herein for the defendant, and this is true even though plaintiff may have thought that deceased would bestow on her or some member of her family a gift of a portion of his property by way of his Will or otherwise.”

Defendant’s claim of error in Instruction 1, on which he seeks to support the court’s order, is that it assumes there was no family relation between plaintiff and Charles Martz, deceased. Defendant’s position is that, to authorize a verdict for plaintiff, it was essential “to either require the jury to find that there was an express promise to pay or the jury had to find there was no family relationship.” We note that the instructions offered by each party state an obligation to pay for the services rendered and received unless there was a family relationship or some other relationship indicating gratuitous services (no specific relationship is submitted by Instruction No. 3 and only family relationship is argued in defendant’s brief) so both adopted the same theory as to obligation to pay if there was no family relationship. (For other forms of such instructions see 4 Raymond Missouri Instructions 263-265.) Plaintiff says there was no substantial evidence from which the jury could find a family relationship, within the legal definition of that term, so that there was no error in assuming it. We said in Steva v. Steva, Mo.Sup., 332 S.W.2d 924, 926: “The term ‘family,’ within the rule under discussion, ‘has been defined as a collective body of persons under one head and one domestic government, who have reciprocal, natural, or moral duties to support and care for each other’”; and that “[a] relationship of sisters-in-law, in and of itself, does not give rise to a presumption that services are rendered gratuitously.” In this case, the parties were not related by blood, marriage or adoption, legal or equitable.

The relevant facts are that Martz employed plaintiff’s husband as a farm hand in 1940 at $30.00 per month and a gallon of milk a day, furnishing them a tenant house on his farm. Plaintiff and her husband and child moved into the tenant house and another child was born to them there. In 1943, plaintiff’s husband’s monthly pay was raised to $45.00 per month. In 1947, Martz entered into a partnership agreement with plaintiff’s husband for the operation of his 350-acre farm, including joint ownership of livestock and other property. Just before this, in 1946, Mrs. Martz, then about 60, had a stroke and plaintiff commenced cooking for her, doing laundry, looking' after her chickens and getting groceries. Mrs. Martz had anoher stroke in 1949 and died in 1950. After her funeral, Martz came to plaintiff and her husband and asked them to move into his house, “stay with me and take care of things * * * take care of the house and everything,” saying: “If you will do that, I will see that you are paid and paid well for it.” After talking it over, they did move into Martz’s house and plaintiff “did all of his housework, cooked his meals, washed his clothes, laundry, just everything housekeepers do”; also including shopping, bookkeeping, letter writing, reading, painting and paperhanging. Martz had his own room and plaintiff, her husband and children had their own rooms. Martz paid for electricity but rented the tenant house furnished with the furniture owned by plaintiff and her husband.

In 1952, Martz remarried and plaintiff and her husband and children moved back to the tenant house but plaintiff did laundry and heavier housework for Martz during that time. However, this marriage ended in a divorce after ten months and according to his statements to plaintiff and her husband cost him $10,000.00. Martz asked them to move back to his house and help him again, saying: “I’ve got myself in an awful mess * * * if you’ll come back, I’ll see you’re paid for it.” Several weeks later, they decided to try it again and stayed until Martz died in February 1962. Plaintiff did the same housework as before but Martz required more care after 1955 because of illness, having a prostate operation and in 1957 a heart attack. Plaintiff’s husband said they treated Martz “like one of the family.” They called him “uncle”, or “unc”, as did others in the neighborhood, and exchanged gifts on birthdays and holidays but Martz always spent Christmas with relatives at Carthage. There was testimony that Martz said at Carthage in 1957 that he had a will and wanted to be sure that plaintiff and her husband were provided for. He bought gifts, clothing and other things at times for plaintiff, her husband and children; sometimes he gave the children small amounts of money to spend and the children did things for Martz. He permitted all of them to use his automobiles and he used theirs. The farm partnership was terminated in 1955 and thereafter plaintiff’s husband rented the whole farm, paying $435.00 annually for the pasture land of about 150 acres and the buildings and lots and giving Martz a share of the grain raised. (Defendant had evidence that use of the pasture was worth considerably more.) Martz had his room in the house as before and paid for lighting, heating and telephone except long distance calls of plaintiff’s husband and his additional directory listing. Defendant had nieces and nephews living nearby who visited him at times, invited him to their homes for meals, and sometimes took him to see a doctor or to other places and wrote letters for him. The administrator of the Martz estate said when plaintiff and her husband settled with him for the cash rent due, he asked them if there was anything the estate owed them and they both said “no”, but plaintiff denied this. Plaintiff’s husband became incapacitated from a heart attack in May 1961, about nine months before Martz died.

Defendant cites Nelson v. Poorman’s Estate, Mo.App., 215 S.W. 753, as showing there does not have to be a blood relationship or legal adoption to establish a family relationship. However, in that case, claimant had been taken into decedent’s home when a child about 10 years old and lived there with decedent and her husband, until her death 12 years later, and sought payment for services during this period. In a similar case, cited by defendant, Broyles v. Byrne, Mo.App., 13 S.W.2d 560, where claimant, from about the age of 12, lived with decedent until her death 13 years later, a judgment for claimant was affirmed, there being substantial evidence of an agreement to pay for 'her services. In Smarr v. Smarr’s Estate, Mo.App., 283 S.W. 461, deceased lived in the home of his brother and his wife, the claimant and their son, for more than 40 years, and was treated as a member of the family. The brothers were in partnership in business and jointly owned farm and business real estate. After claimant’s husband’s death, she and deceased entered into a partnership for operation of the properties and other business, which continued until decedent’s death two years later. The court found a family relationship but also found substantial evidence of intent of deceased to pay for housekeeping services. See also Brunnert v. Boeckmann’s Estate, Mo.App., 276 S.W. 89, 258 S.W. 768; Smith v. Sims, Mo.App., 258 S.W. 1032; Hyde v. Honiter, 175 Mo.App. 583, 158 S.W. 83. The facts in this case are very different from those in the cases cited by defendant.

Our conclusion is that there was no substantial evidence to show a family relationship between plaintiff and Martz in this case. “[I]t has been held that to constitute a ‘family’ there must be (1) a social status, (2) there must be a head who has a right, at least in a limited way, to direct and control those gathered into the household, and (3) this head must be obligated either legally or morally to support the other members, and (4) there must be a corresponding state of at least partial dependence of the other members for this support.” 35 C.J.S. p. 939. In this case, the status of the parties was by a business agreement and not based on any legal or moral obligation of either to support the other. The relationship between these parties grew out of and continued on a contract basis between plaintiff’s husband and Martz, first as a partnership contract for operation of his farm and finally as a rental contract for the whole farm, including the house (with Martz reserving a room and other uses of it), on a cash and grain rent basis. Because of the business relation between Martz and plaintiff’s husband, plaintiff was available for the housekeeping services Martz required and no doubt it was more convenient for him to have hér render them than to employ someone else. There was no legal or moral basis for an obligation of either to support or care for the other. Under these circumstances, plaintiff’s services (not included in any contract between her husband and Martz) and Martz’s acceptance of them “implies a promise to pay.” Steva v. Steva, supra, 332 S.W.2d 1. c. 927; Muench v. South Side National Bank, Mo.Sup., 251 S.W.2d 1; see also 2 Limbaugh’s Missouri Practice 178, Sec. 785, and cases cited, and American Law Institute Restatement of Restitution, Sec. 1 and Comment b. In the Steva case, we held that no family relationship existed, although the claimant was the decedent’s brother’s wife and decedent, a bachelor, lived in their home after the house on his farm burned until he built another.

In Thomas v. Fitzgerald’s Estate, Mo.App., 297 S.W. 425, 428, it was held that the record would not “support the conclusion that what is termed in the law the family relation existed between plaintiff and deceased” but “was in the nature of a business relation.” In that case, the plaintiff during most of the time stayed at the home of deceased, a bachelor, “did practically all of the housework and at times assisted in rounding up the cattle, which usually consisted of 100 head, and when present assisted in the feeding, and did other work on and about the place.” In Boyher v. Gearhart’s Estate, Mo.App., 367 S.W.2d 1, the claimant, deceased’s niece, quit her job and moved into his house to take care of him after his wife died. The court said: “Plaintiff was under no legal or moral duty to render this service; nor was there natural, legal or moral duty on the part of either to support the other. We find the evidence wholly insufficient to show that plaintiff and deceased were members of a family under the facts and circumstances shown. Nor was there any evidence of such a relationship between the parties which would lead a reasonable person to believe that plaintiff intended her services as a gratuity. Under such circumstances the law implies an agreement' that .the. services were to be paid for”-. See.'alsg Smith v. Collins, Mo.App., 243 S.W. 219; Taylor v. Hudson, 145 Mo.App. 377, 129 S.W. 261. Since defendant makes no complaint against this instruction except failure to require a finding that there was no family relationship, we hold the trial court’s order cannot be' sustained on the ground of error in giving Instruction No. 1.

Likewise, the other ground for granting a new trial, error in admitting the testimony of plaintiff's husband, cannot be sustained. Defendant claims that his testimony was prohibited by Sec. 491.010 because Martz was dead. Defendant says the only question is whether or not plaintiff’s husband was a party to the contract. Defendant argues that the agreement to take care of Martz was a joint contract with plaintiff and her husband and points out that plaintiff’s husband had also filed a claim against the estate which included “having the companionship and the presence of his family.” (What the amounts he claimed were for does not appear.) However, plaintiff’s action is not based on contract but iy in quantum meruit for the services she alone rendered to Martz as requested and accepted by him. Her husband has no interest or right in her compensation for her own services. A similar contention was made and overruled in Ashley v. Williams, 365 Mo. 286, 281 S.W.2d 875, 879, in which the deceased’s son-in-law obtained a judgment for services in taking care of his wife’s father. There was substantial evidence that his services should be compensated “rebutting the presumption arising out of the family relationship that the services were performed gratuitously.” Claimant’s wife was permitted to testify although “her father made an agreement with her and he also made a second agreement with her husband.” We said: “The evidence was sufficient to justify a finding that the witness was competent because the agreement sued bn was a several one between the plaintiff and Mr. Minnick.” Claimant’s .wife did not present an account for this •care, in that -case, saving “that agreement ■was' between my husband and my father.” Likewise, in this case, it is not contended that plaintiff’s husband has made any claim for housekeeping and other services included in plaintiff’s claim. See Bush v. Evans, 218 Ark. 470, 236 S.W.2d 1013; see also Vosburg v. Smith, Mo.App., 272 S.W. 2d 297, 304, and cases cited therein in note 13; and annotation, 27 A.L.R.2d 538, 565; 58 Am.Jur. 196, Witnesses, Sec. 320; 97 C.J.S. Witnesses § 172, p. 615; see also Sec. 491.020. We hold there was no error in admitting the testimony of plaintiff’s husband.

. The order granting a new trial is reversed and cause remanded with directions to reinstate the verdict.

All concur.