author: HOLLINGSWORTH, Judge.

text:
    UNION ELECTRIC COMPANY, a Missouri Corporation, Respondent, v. Vernon PFARR and Cora A. Pfarr, Appellants.
    No. 49777.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Motion for Rehearing or to Transfer to Court En Bane Denied Feb. 10, 1964.

      N. Murry Edwards, St. Louis, Ninian M. Edwards, Clayton, B. Richards Creech, St. Charles, for appellants, Vernon Pfarr and Cora A. Pfarr.
    Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondent.
   HOLLINGSWORTH, Judge.

This is a condemnation proceeding brought and tried in the Circuit Court of St. Charles County by Union Electric Company, a Missouri corporation, under § 523.010 RSMo 1959, V.A.M.S., to acquire title to a tract of land owned by defendants, Vernon Pfarr and Cora A. Pfarr, husband and wife, in St. Charles County, upon which (with other tracts) it is plaintiff’s purpose to erect and maintain an electric power plant. The tract-here taken is situate about three miles south and east of Portage Des Sioux, 6 to 7 miles north and west of West Alton and 16 to 17 miles north and east of the City of St. Charles.

Described in the petition by metes and bounds, the tract is said (by defendants) to consist of approximately 120 acres. It is bounded on the south by State Highway 94 which in that vicinity extends in a general east-west direction. Its frontage on Highway 94 is 1500-1510 feet and it extends northward, bounded on the east and west by parallel lines, to the south line of a 76.84 acre tract owned by the Federal Government. The Government-owned tract, bounded on the east and west by a continuation of the same parallel lines that bound defendants’ tract, extends northward to the high water mark of the Mississippi River. In addition to the 76.84 acre tract owned by the Government and lying between defendants’ land and the Mississippi River, the Government also has a water flowage easement over two parcels of the 120 acre tract owned by defendants: Parcel A, consisting of 10.14 acres, in the east central portion thereof, and Parcel C, consisting of 4.98 acres, in the southeast portion thereof, The Burlington railroad, as it runs through that vicinity, extends in a northwest-southeast direction, with its nearest point ^4ths to 1 mile to the south of defendants’ tract. Several miles to the south of the Burlington railroad is the Missouri River, also coursing in a general northwest-southeast direction.

On April 1, 1961, the trial court appointed commissioners to assess the damages sustained by defendants for the taking of their tract. On the same day the commissioners, by their report duly filed, assessed that damage at $85,000. On April 7, 1961, plaintiff paid into the court registry the sum thus assessed. Both parties filed exceptions. Thereafter defendants disqualified the Judge of the Circuit Court of St. Charles County and the Honorable Elgin T. Fuller, Judge of the Tenth Judicial Circuit, was assigned to sit as a judge in the cause. When the case came on trial before a jury, it was stipulated that the taking of defendants’ property was on April 7, 1961. Trial of the issue of damages resulted in a verdict in favor of defendants in the sum of $66,000, and judgment was rendered accordingly. Defendants appealed. At trial defendants contended and here contend that their damages amount to $420,-000. The difference in the amount in dispute vests jurisdiction of this appeal in this court.

Defendants, on appeal, contend that the trial court prejudicially erred in giving plaintiff’s Instructions Nos. 1 and 2; in excluding certain evidence offered by defendants, proffer of which was duly made; and in refusing to ?et aside the verdict and judgment on grounds plaintiff failed to comply with the laws and Constitution of Missouri in that it did not pay into the registry of the court, in addition to the face amount of the commissioners’ award, interest thereon from the date of the filing of the award to the date of payment thereof into the court registry. A brief summary of the evidence will suffice for determination of the validity of the errors assigned.

Defendant Vernon Pfarr testified: He and his wife had occupied the tract taken by plaintiff for more than 32 years. Their occupancy from March, 1929, until the end of 1956 had been as tenants of Mrs. Moer-schel. Following her death in 1956, defendants agreed to purchase and in 1957 acquired title to the tract from her heirs, for which they paid the sum of $25,000.

Mr. Pfarr further testified: In the year 1940, while occupying the tract as a tenant of Mrs. Moerschel, defendants, in consideration of fees paid to them, began to permit public fishing in the sloughs on the land. In 1942, the number of fishermen became so great that defendants leased the 76.84 acre tract owned by the Government lying between the tract here taken and the Mississippi River, upon which Government-owned tract there is a large slough suitable for public fishing. Continuously from 1942 until the end of 1961, defendants used the waters on both tracts as a public fishing area, for which they have charged fees. During the three years preceding the year 1962, defendants, operating under a lease obtained from the Government, have maintained on the Government-owned tract toilet facilities and a picnic ground; and from 1942 until the end of 1961 they maintained from 25 to 31 boats for use of the fishermen using the waters of both tracts. The only access to the waters on either of these tracts was by way of Highway 94 into defendants’ land, thence across that tract to the 76.84 acres owned by the Government. Prior to termination of the lease ending in October, 1961, the Government refused to again lease its tract to defendants, “saying it was going to be taken by Union Electric”.

Mr. Pfarr further testified: He had kept records of the income received by defendants from the fishing privileges and recreational grounds on both tracts for public use from 1954 through 1960. He, however, could give no “breakdown” as to the income received on defendants’ tract, “because they (the fishermen) would come in the place and fish * * *, I would collect from them * * * and then they would come down on the Government ground and fish and I have no recollection of what it was.” Defendants thereupon sought to show that the annual income from fishing on their property during those years averaged $2,-351.95. Plaintiff objected on grounds that these receipts represented the income from both properties. Counsel for defendants then admitted: “There is no question about that, your Honor. So my record will be straight, this witness (Mr. Pfarr) in my proffer would testify that these are the incomes from fishing and«he could not break it down as to what part was on the slough (on the Government-owned tract) and what part was on the water on his land.” The court denied the proffer on the grounds stated in the objection made to it and also on grounds that the entire question of profits was a questionable element in a condemnation suit because profits involve capital expenditures and individual and personal efforts on the part of the property owner.

Mr. Pfarr further testified: The “fair or reasonable market value” of the property owned by defendants on April 7, 1961, which he believed to consist of 120 acres, was $3,500 per acre, a total value of $420,-000. That estimate, he said, was based upon “the increase on the Alton Pool, the boating and stuff (on and adjacent to the Mississippi), it calls for club houses and residential that has developed in that area in the last three years, three, four years, make me think, and the people that came in and wanted to buy the place, and the enormous price they offered for it if I would subdivide it, made me think that that was the figures that my place was worth.” He also said: “I have never valued my farm as a farm. I have valued my farm as residential, for resort purpose, and as close as it is to harbors and stuff like that.”

George B. Funk, a qualified appraiser of the value of lands, testified in behalf of defendants that, after taking into consideration the topography of defendants’ land, its proximity to the cities of St. Louis and St. Charles, its proximity to the Mississippi and Missouri Rivers, the Burlington Railroad, Highway 94, and the amount of water available, etc., he deemed its highest and best use was for industrial purposes and appraised its value for that use at $3,000 per acre. William Huffmaster, a qualified real estate appraiser, also testifying in behalf of defendants, gave it as his opinion that the highest and best use of defendants’ tract was for permanent or temporary recreational homesites and that he deemed it to be of the value of $2,500 per acre for that purpose. Sidney Dwiggins, engaged in the real estate business in West Alton, thought the highest and best use of defendants’ tract would be for its fishing and recreational purposes and that for such use "its value would he $3,000 an acre. Elmer Cope, a real estate dealer, testified that the highest and best use of the land would be for either industrial, commercial or residential purposes; and that its value for either of such uses would be $3,000 per acre.

Counsel for defendants also made the following statement and proffer: “The defendants, Pfarr, desire to offer in evidence portions of the testimony of Mr. Eugene L. Hough, who resides at 11311 Clayton Road, Fontenac. His testimony covers part of the hearing held in the case of Union Electric Company vs. Earnest A. Gibbs, et al. (who' owned land adjoining defendants’ tract), Cause No. 2152 in the Circuit Court of St. Charles County, Missouri, and this hearing was held on April 27, 1962, before the Hon. James D. Clemens, Judge of said court. Mr. Hough testified, as this transcript shows, that he is the Vice-President and Chief Engineer of Union Electric Company. I desire to offer in evidence portions of the cross-examination of Mr. Hough where he was asked the following questions, and he gave the following answers : ‘Question: Now as Chief Engineer the last ten years the Union Electric has constructed the Meramec plant, has it not, in St. Louis County? Answer: Yes. Question: Did you have anything to do with the selecting that site, or passing upon it before it was chosen? Answer: Yes, sir, I did. Question: And was it chosen because it was close to water, the river ? Answer: That is one of the factors in connection with choosing the site, yes. Question: And is that also one of the factors in the choice of this plant here in St. Charles County that you have just described as the Sioux plant? Answer: Yes, sir, that’s right, that is one of the factors. Question: What are some of the other factors? Answer: Some of the other factors are the fact that the plant will he reasonably close to the, what we call, the load centers where our heaviest load exists. The site has road access and railroad access. Those are the major factors. Question: There is two railroads, I believe, out there close to it, or run through it, two railroads? Answer: The Burlington railroad runs along one side. Mr. Edwards: That’s right. That is the Burlington. The Witness: Yes, I am not familiar with any other railroad just immediately available to the site. Question, by Mr. Edwards : That was one of the factors in selecting this site ? Answer: Yes, sir. Question: Oh, is the fact that coal is often transported on the water and the river, does that have anything to do with it? Answer: Well, that is one of the things that is attractive about the site, yes. However, we can bring coal in by rail or water. Question : By railroad or even by truck ? Answer : Yes. Question: And that was one of the factors? Answer: Yes.’”

In making the above proffer, counsel for defendants stated: “[I]t is our contention that these statements by Mr. Hough are admissible as admissions against interest by the Union Electric wherein they admit by his very testimony that this site and the location by its access to rail, to water and to road is a good site, we think you can reasonably infer, is a good site for industrial development as our testimony has shown.”

Plaintiff’s objection to the proffer was sustained on grounds, as succinctly stated by the trial court,: “ * * * most of the proffer goes to the question of the value and the items of usefulness as to the con-demnor, and takes in area, additional area other than the tract that we are talking •about, and much of the proffered testimony would apply only to areas which are used in connection with, but in addition to the tract involved in this case. Further, the usefulness to the condemnor is not a matter which * * * this jury is interested * * *; the sole issue here is the value of this property as of April 7, 1961.”

The evidence adduced in behalf of plaintiff tended to show that the site plaintiff was acquiring for its power plant consisted of 996 acres, including defendants’ tract, practically all of which 996 acres was of similar topography to that of defendants’ tract; and that although its use for public fishing was concededly a factor of some import in fixing its value, nevertheless, the highest, best and predominant use of all of the land in that general area, including defendants’ tract, was for agricultural purposes; that it was not susceptible for profitable use as a residential subdivision; and that the fair market value of defendants’ entire tract for any use ranges from $33,000 to $40,000.

Instructions Nos. 1 and 2, given in behalf of plaintiff, are:

1. “* * * under the Constitution of Missouri, private property cannot be taken for public use without just compensation being paid to the owner, and the law of this State gives the owner the right to have such compensation determined by a jury. The plaintiff * * * is seeking by this suit to condemn for public use certain land mentioned and described in the evidence, which land is the property of the defendants * * *. Therefore, your verdict must be for said defendants and, in assessing the just compensation to be paid' to them, you should consider all the evidence admitted by the Court under the instructions given you by the Court.
“The just compensation to which the defendants are entitled is the fair market value of the defendants’ property as of April 7, 1961.”
2. “ * * * by the term ‘fair market value’, as used in these instructions, is meant the actual value of the property as of April 7, 1961, that is, the fair value of the property as between one who wants to and is able to purchase, and one who wants to sell and is not obliged to. sell; not what could be obtained for the property under peculiar circumstances when greater than its fair market value could be obtained; not its speculative value; not- the value obtained through the necessities of another; nor, on the other hand is it to be limited to that price which the property would bring, if forced off at auction under the hammer. In other words, it nieans the fair market value which could be obtained if the defendants wanted to sell their property upon the market to parties who wanted to buy and would and were able to pay its full value on the usual and ordinary terms of private sale.”

Although these instructions have heretofore been challenged on grounds of being abstract in form, they have not been declared prejudicially erroneous. As to No. 1, see: Chicago, R. I. & P. Ry. Co. v. Hosman, 227 Mo.App. 659, 57 S.W.2d 434, 436; State ex rel. State Highway Commission v. Hartman, 226 Mo.App. 604, 44 S.W.2d 169, 170; State ex rel. State Highway Commission v. Stoddard Gin Co., Mo.App., 62 S.W.2d 940; State ex rel. State Highway Commission v. Schutte Investment Co., Mo., 334 S.W.2d 241, 247; State ex rel. State Highway Commission v. Anderson, Mo.App., 367 S.W.2d 809, 812. As to No. 2, see: State ex rel. State Highway Commission v. Farmer’s Estate, Mo.App., 68 S.W.2d 721, 724; State ex rel. State Highway Commission v. Lindley, Mo.App., 96 S.W.2d 1065, 1073 [16]; State ex rel. v. Anderson, supra; State ex rel. v. Hartman, supra; and State ex rel. v. Stoddard Gin Company, supra.

Defendants contend Instruction No. 1 is a mere abstract'statement of the law; that both Instructions 1 and 2 omit an essential element of defendants’ right to recover the fair market value of their property based upon its highest and best iise on the date of the taking (April 7, 1961) ; also that inasmuch as there is a conflict between the evidence adduced in behalf of defendants and the evidence adduced in behalf of plaintiff with respect to the fair market value of the land based upon its highest and best uses both 1 and 2 were necessarily prejudicially erroneous; and that as to 2, it was additionally erroneous in that it was in conflict with Instruction No. 4, given at the request of defendants.

It is necessary therefore that, in considering the foregoing contentions, we should here set forth a portion of defendants’ Instruction No. 4. The first three paragraphs of No. 4 state in extended detail the substance of the more concisely worded directions given -the jury in Nos. 1 and 2. The fourth paragraph of 4 then advises the jury that the meaning of the term “just compensation” to which defendants are entitled, as that term is used in the third paragraph of defendants’ 4, is as follows:

“The just compensation to which said defendants are entitled is the fair market value of the highest and best use of defendants’ lands on April 7, 1961. You may take into consideration in arriving at a verdict for said defendants the location of defendants’ land and improvements, the uses and purposes for which the property has been devoted and its adaptability and capability to which, in all reasonable probability, the land could be devoted for uses for which the tract was suitable and adaptable at the time of the taking, having due regard not alone to the community business wants ' then existing of the locality in which the property is located, but also to such business wants as may reasonably be expected in the immediate future, together with all the surroundings and conditions as shown in evidence in this case.” (Emphasis ours.)

First, as to defendants’ contention that plaintiff’s Instruction No. 1 is a mere abstract statement of the law, it should be noted that if it isj then the same vice exists as to the first three paragraphs of defendants’ Instruction 4. But more to the point: Assuming that both 1 and the first three paragraphs of 4, in some respects, declare abstract statements of the law, yet they also serve a salutary purpose in defining and delimiting the precise issue to be tried by the jury. No prejudicial error is shown in Instruction 1 on grounds it is a mere abstract statement of the law..

In support of their contention that 1 and 2 are prejudicially erroneous, in that they omit “an essential element” of defendants’ right to recover the fair market value of their land based upon its highest and best use, defendants cite City of St. Louis v. Vasquez, Mo., 341 S.W.2d 839. That case does not hold to be prejudicially erroneous an instruction which employs only the all-inclusive term of “fair market value” of the property on the date it was taken as the “just compensation” to which defendants were entitled. Actually, the case holds that an instruction, which specifically declared “highest and best use” to be an element of “fair market value”, was proper and therefore not prejudicially erroneous.

The evidence in this case consists of more than 300 pages of transcript. There was never any dispute that defendants were entitled to an award of “just compensation” computed upon the basis of the land’s highest and best use as of April 7, 1961. Indeed, the greater part of the evidence of both parties was directed to the specific issue of what constituted the highest and best use to which the land could be put as of that date; and Instruction 1 expressly directed the jury that in assessing the just compensation to be awarded defendants they should consider all of the evidence admitted by the court under the instructions given. Therefore, we think it clear that no reasonably intelligent jury could have failed to understand the issues so exhaustively presented. Moreover, the jury was expressly directed under defendants’ Instruction 4 that, in ascertaining the fair market value of defendants’ land, “the just compensation to' which defendants are entitled is the fair market value of the highest and best use of defendants’ land on April 7, 1961.”’ These instructions, read together, as of course they must be, are not “misleading, confusing and conflicting” as defendants contend.

Defendants’ next contention, in substance that the trial court erred in refusing to permit defendants to place in evidence the amount of annual income received from the use of their land for recreational purposes for the years of 1954 through 1960, must also be denied. The record speaks for itself in the conclusion thus reached. Plaintiff neither sought nor took from defendants any right they had to the use of the Government-owned 76.84 acre tract. Even if we were to assume that the income received from the use of both tracts, which admittedly accrued in part from the employment of invested capital over and above the value of land, would tend to shed some light upon the adaptability of the land in both tracts for recreational use, yet defendants were unable to allocate to their tract the proportionate part of the total received from both; and, obviously, the jury could not do so. Consequently, the evidence, as proffered, would have tended to mislead rather than to enlighten the jury as to the value of defendants’ tract for use as a recreational area.

Defendants’ next contention is that the trial court erred in refusing their proffer of the testimony of Eugene L. Hough, vice-president and chief engineer of plaintiff company. That testimony, to the effect that in selecting the 996 acre tract in St. Charles County for the site of its power plant, plaintiff took into consideration its proximity to its “load center” in that area and to railroad, river and highway access. The basis upon which defendants contend that such evidence was competent and material is that it amounts to an admission of facts justifying an inference that the highest and best use of the 996 acre tract was its fitness for industrial sites.

Assuming that the testimony thus proffered might warrant an inference that other industries having a need for a site such as plaintiff needed would be interested in establishing an industrial site on defendants’ tract and thus warrant the further inference that the fair market value of defendants’ tract was thereby increased, yet it must also be borne in mind that there was never any question in this case that the proximity of defendants’ tract to rail, water and highway accessibility was a factor for consideration by the jury in determining its fair market value based upon its highest and best use on April 7, 1961. The value (and lack of value) of that factor was fully explored and brought before the jury not only by defendants but also by plaintiff. The prejudicial vice of the testimony of Mr. Hough as proffered by defendants is that its true effect would have been to bring before the jury plaintiff’s need of the particular site in question and thereby place in the foreground the value of the land to plaintiff, based upon plaintiff’s need, rather than its right to acquire defendants’ land at its fair market value as of April 7, 1961, for a power plant site. The concept of the right of eminent domain is not to assess damages for private property taken for public use on the basis of the condemnor’s need; rather it is to afford to a lawful condemnor of private property taken for public use the right of condemnation upon payment of just compensation. Article I, § 26, of the V.A.M.S. Constitution of Missouri. “Just compensation” is what the landowner loses by having his property taken, i. e., its “fair market value” when taken. State ex rel. State Highway Commission v. Howald, Mo., 315 S.W.2d 786, 790 [6-8]; 29 C.J.S. Eminent Domain § 160, p. 1028. The contention cannot be sustained.

Defendants’ fourth and final contention is that the verdict should be set aside because plaintiff did not pay into the court registry interest on the award of $85,000 from the date the award was made, April 1, 1961, to the date it was deposited in court, April 7, 1961. The reasoning upon which that contention is founded, as we understand it, is that because of the failure of plaintiff to pay interest on the award between those dates, title to defendants’ property did not become vested in plaintiff and that trial of the exceptions to the award was therefore premature and void under Art. I, § 26, of the Constitution, which provides that “private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be provided by law; and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.” (Emphasis ours.)

The record is clear that plaintiff, in strict accord with one of the alternatives expressly granted it in the above provision, on April 7, 1961, paid into court the full amount ascertained by the commissioners to be just compensation for the taking of defendants’ land, $85,000. Under the express provisions of § 523.040 RSMo 1959, V.A.M.S., plaintiff, on April 7, 1961, having fully complied with the provisions of the Constitution, became vested with the lawful right “to hold the interest in the property so appropriated for the uses” for which it had been condemned; and it was so stipulated at the trial. Defendants’ contention that this action was prematurely brought and that the verdict and judgment rendered should be set aside is without merit.

We are of the opinion, however, that the judgment herein rendered must be modified to the extent and for the reasons following: That judgment rightly declared that of the $85,000 paid into the court registry by plaintiff, the sum of $66,000, as awarded by the jury, be paid to defendants and that the sum of $19,000 (still remaining in the registry of the court) be paid to plaintiff, but it went further and declared that plaintiff also recover and be paid interest at 6% on said $19,000 from the date of the deposit. Patently, the judgment as rendered would take the amount of interest thus awarded plaintiff from the $66,000 awarded defendants as just compensation for their land.

In its brief filed herein plaintiff, with commendable frankness, concedes that § 523.045 RSMo 1959, V.A.M.S., which defines the extent to which interest may be allowed in a situation such as is here presented, must be read in connection with the recent opinion of this court en banc in the case of State ex rel. State Highway Commission v. Paul, Mo., 368 S.W.2d 419, wherein we construed § 523.045, supra, not to warrant the allowance of interest in a situation such as is presented under the judgment herein awarded plaintiff. Although plaintiff expresses disagreement with the holding of the court in that case, it nevertheless concedes that the decision in the Paul case “may lead to a modification of the judgment in the instant case, with regard to interest.”

In this state of the record, we note that defendants, in their original brief, did not challenge the allowance of the interest awarded plaintiff in the judgment, but that they now, in their reply brief, assert that the decision in the Paul case, supra, shows that the allowance of interest on the $19,000 was erroneous. Despite the fact that the challenge now made would ordinarily be disallowed because not timely made, yet for the reasons in Paul stated, to which reference is made, we have concluded that the judgment in the above respect constituted plain error, and that the error so clearly violates the constitutional right of defendants to be paid the full amount of the compensation awarded by the jury as to manifest prejudicial injustice to them within the meaning and intent of Civil Rule 79.04, V.A.M.R.

The judgment therefore should be and is modified to delete therefrom the interest allowed plaintiff on the $19,000; and said judgment, so modified, is affirmed.

All concur.


source: Caselaw Access Project

author: DALTON, Presiding Judge.

license: Public Domain

text:
    Ralph MEYERS et al., Plaintiffs-Respondents, v. Daryl Dean SMITH, Defendant, Western Casualty and Surety Company, of Fort Scott, Kansas, Garnishee-Appellant.
    No. 49882.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Motion to Strike Portion of Opinion, for Rehearing or to Transfer to Court En Banc Denied Feb. 10, 1964.

      Roberts & Roberts, J. Richard Roberts, Farmington, for appellant.
    D earing, Richeson & Weier, Hillsboro, Melvin Englehart, Jefferson City, for plaintiffs-respondents.
   DALTON, Presiding Judge.

This is an appeal by garnishee from a $17,412.50 judgment entered against it in a garnishment proceeding, being the amount of a judgment theretofore rendered in favor of plaintiffs and against defendant Daryl Dean Smith (with accrued interest) in an action for the wrongful death of plaintiffs’ fourteen-year-old daughter, Ruth Meyers.

The action for wrongful death was tried three times and reviewed twice on appeal. See Meyers v. Smith, Mo.Sup., 300 S.W.2d 474, where a judgment for $15,000 was reversed and the cause remanded for error in the admission of evidence, and Meyers v. Smith, Mo.App., 349 S.W.2d 412, wherein a judgment for plaintiffs for $15,000 was affirmed on appeal.

In the trial of the garnishment proceeding the parties filed what has been termed a “Stipulation of Facts” but what is, in truth, a stipulation that certain evidentiary facts (not ultimate facts) were true. (See Perry v. Wiggins, 8 Cir., 57 F.2d 622, 625 [7]; Murphy v. Doniphan Tel. Co., 347 Mo. 372, 147 S.W.2d 616, 619 [5 et seq.].) The stipulation contained the further agreement that “ * * * the right is preserved to the parties to challenge the propriety of the court’s consideration of these facts; and it is further understood by and between the parties thereto that each party has the right to introduce additional evidence at the trial of the issues herein going to any of the following facts by way of elaboration thereon or explanation thereof but not in controversion thereof, and that each of the parties has the right to introduce any additional evidence as to any other facts not hereinbelow stipulated.”

No additional evidence was offered or received at the trial and, on the record presented, the court (without the aid of a jury) found the issues for the plaintiffs and against the garnishee and entered judgment, as stated. Garnishee has appealed and has stated the facts substantially as follows:

On May 17, 1955, a 1953 Ford automobile occupied by six teenagers was involved in a one-car collision, where the automobile left the highway and collided with a tree. One of the occupants of the automobile was Ruth Meyers, plaintiffs’ daughter, who died as a result of the collision. Another occupant was defendant Daryl Dean Smith, age sixteen, against whom the mentioned $15,000 judgment was rendered. The other occupants of the automobile were Margarita Barker (apparently age fourteen); Paul Head, age sixteen; Jerry Head, age fourteen; and Harold Owens, aj;e seventeen.

The automobile involved in the collision was owned by Ralph Smith, the father of Daryl Dean Smith. Prior to May 17, 1955, the garnishee had issued a policy of insurance insuring Ralph Smith and the Ford automobile in question. The policy contained a clause commonly known as an “omnibus clause” to the effect that “the unqualified word ‘insured’ includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission.”

The policy contained a further provision, as follows: “16. Assistance and Cooperation of the Insured: The insured shall cooperate with the company and upon the company’s request, shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of suits.”

On May 17, 1955, and prior to the date of the collision, Ralph Smith had given his son permission to use the mentioned Ford automobile, the only restriction being that only Daryl Dean should drive it. Whether or not he was so operating the automobile at the time of the collision was the issue thrice tried to a jury.

Following the collision and death of Ruth Meyers the garnishee employed the law firm of Roberts & Roberts to make an investigation of the occurrence. In the process of this investigation Daryl Dean Smith signed a written statement (not dated) wherein he stated that he was the driver of the automobile at the time of the collision, and was driving west of Doe Run, Missouri, on Highway “W”. “The road at that point is blacktopped, 2 lane. I was going about 55 miles per hour' with my head lights on bright when we suddenly came to a very sharp curve. I started turning with the curve which was to my right and my arm struck the arm of Ruth Meyers who was sitting next to me and I did not make the turn completely. My car went off the edge of the road on my left, hit the shoulder, came back to the highway and then went back to my left, crossed the ditch and ran into a tree. I was thrown from the car before it struck the tree.” The persons in the back seat were also thrown out, while Ruth Meyers and Harold Owens were pinned in the wreckage in the front seat, on the right-hand side where the cowl and door struck the tree.

The other surviving occupants of the automobile also first advised members of the law firm of Roberts & Roberts that Daryl Dean Smith was driving at the time of the collision.

Thereafter, on June 27, 1955, a member of the law firm was advised by the parents of Daryl Dean Smith that he was not driving the automobile at the time of the collision, but rather Ruth Meyers had been the driver. This was the first information obtained by garnishee that Daryl Dean Smith was now claiming that he was not the driver at the time of the collision.

On August 13, 1955, plaintiffs instituted the mentioned suit against Ralph and Daryl Dean Smith for damages on account of the death of their daughter and alleging that Daryl Dean Smith had negligently driven the Ford on the night of the collision. On August 17, 1955, Daryl Dean Smith and Ralph Smith executed to appellant-garnishee a Reservation of Rights Agreement and, thereafter, on September 1, 1955, Roberts & Roberts, at garnishee’s direction, filed an answer on behalf of Ralph and Daryl Dean Smith. Plaintiffs subsequently dismissed as to defendant Ralph Smith.

In the three trials and two appeals of the wrongful death action Roberts & Roberts appeared as attorneys for Daryl Dean Smith by direction of garnishee and they were compensated by garnishee for their services. Before each trial the trial court was advised that a Reservation of Rights Agreement had been executed and that Daryl Dean Smith was being represented by Roberts & Roberts at the direction of garnishee and subject to the terms of the Reservation of Rights Agreement. Before each trial Roberts & Roberts advised defendant, Daryl Dean Smith, that they were appearing as representatives of garnishee; that he (Smith) was entitled to employ an attorney of his own choosing; and that Roberts & Roberts would cooperate with said attorney.

At each of the three trials Daryl Dean Smith testified that he was not the driver of the Ford when the collision occurred, but rather that Ruth Meyers was driving. He further testified at each trial that after the collision he asked the other passengers of the car to tell all who asked that he (Smith) was driving the car at the time of the collision. The surviving passengers of the car, who testified at the various jury trials, testified that Ruth Meyers had been driving and that Daryl Dean Smith requested them immediately after the collision to say he was the driver, and that they had so stated to other persons. In each of the jury trials, plaintiffs presented considerable testimony from various witnesses that Daryl Dean Smith, following the collision, had advised them that he was the driver at the time of the collision.

At each of the circuit court trials the jury was instructed that before they could find for plaintiffs and against the defendant they had to find that defendant was the driver at the time of the collision and, conversely, that if they found Daryl Dean Smith was not driving that they should find for defendant, Daryl Dean Smith.

From June 27, 1955, through the date of the last trial between plaintiffs and defendant, Daryl Dean Smith complied with every request made of him by garnishee.

On this record the trial court entered judgment for plaintiffs and against garnishee, as stated, for the amount of the mentioned judgment, interest and costs. Motion for new trial was filed and overruled and garnishee filed notice of appeal.

The sole assignment on this appeal is that the court erred in entering judgment for plaintiffs and against the garnishee based upon the insurance contract issued by garnishee to Ralph Smith, since defendant, Daryl Dean Smith, was not insured against claims arising from the collision occurring on May 17,1955, because he breached a condition of said contract by failing to cooperate with the garnishee. Appellant insists that the condition of cooperation was a condition precedent and the breach thereof prejudiced the garnishee, hence garnishee was not obligated to these plaintiffs on account of said policy of insurance.

Since this case was decided on the mentioned stipulation and exhibits attached, and by a Judge who heard no testimony, this Court does not accord to the trial court’s findings the same deference which it would accord had that court personally heard oral evidence in support of plaintiffs’ claim. Temperato v. Horstman, Mo.Sup., 321 S.W.2d 657, 661[1]; Schwartz v. Shelby Const. Co., Mo.Sup., 338 S.W.2d 781, 788[6-8]; Giokaris v. Kincaid, Mo.Sup., 331 S.W.2d 633, 635[1]. This appeal, however, is governed by Supreme Court Rule 73.01, V.A.M.R. which, in part, provides that: “The question of the sufficiency of the evidence to support the judgment may be raised whether or not the question was raised in the trial court. The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous * *

Appellant concedes that plaintiffs are, in effect, the unnamed beneficiaries of the policy issued by it to Ralph Smith; and that, as such, they may bring this action against the appellant. Appellant insists that the plaintiffs occupy no better position than the insured would have occupied had he paid the judgment and then sought reimbursement from the company; and that the rule is well stated in Donlon v. American Motorists Ins. Co., Mo.App., 147 S.W.2d 176, 178[2], as follows: * * * where an injured person has recovered a judgment against an assured, and such person brings an action upon the judgment to recover the amount thereof from an insurance company whose policy covered the loss, the insurance company may assert any defense against the injured person which it might have asserted as a defense in an action brought against it by its assured.” Of course, since Daryl Dean Smith is an insured under the policy by reason of the omnibus clause the rule applies to him and he is bound by all of the applicable conditions of the policy. It is then contended that he breached the conditions of the policy by his failure to cooperate with it, hence appellant says it would not have been liable to him, and that the company is not liable to plaintiffs.

Appellant argues that under the facts of this case the conflicting versions by defendant Smith as to the identity of the driver cannot be charged to an honest mistake or misunderstanding; that defendant first advised appellant, not simply that he was the driver of the automobile, but he explained in detail how he was driving and how he lost control. He reported this version many times to others, not only on the night of the collision, but afterwards, and six days after the collision he executed a sworn statement wherein he stated he was driving. He not only took this position, but he asked other passengers to tell the same story to all who inquired, and they did so.

Appellant says that the basic and uncomplicated fact as to the identity of the driver could not have been forgotten by defendant Smith, who purposely and deliberately gave a false version to appellant after the collision, but later changed his version and tenaciously stayed with it. Appellant also says that the identity of the driver was a material fact; that, if he was not operating the automobile, he obviously had a valid defense, while if Ruth Meyers was driving the automobile when the vehicle left the road and collided with a tree, the appellant had the further valid defense of contributory negligence; and that in giving the appellant two versions concerning the identity of the operator of the automobile, one obviously false and the other true, defendant clearly failed to cooperate with appellant and appellant is relieved from liability under the policy.

Appellant also states that in the instant case it does not know at this date which of Smith’s versions, as to the identity of the driver at the time of the collision, is the correct one; that the finding of the jury in the wrongful death action necessarily indicates that they accepted the first version; but that that finding does not necessarily compel the conclusion in this cause that Smith was driving. Appellant further states that the “insurer was in a position of having to present to the jury false testimony and in having its key witness, Smith, impeached by prior statements, one of which was under oath,” and that one can only guess what would have happened “had Smith consistently told the truth, that is, that he was the driver.” Appellant also adds that “it needs no argument to sustain the proposition that insured’s counsel was substantially prejudiced in a material respect when at the trial of the wrongful death action the credibility of each of his witnesses was impeached by their prior statements contrary to their trial testimony.”

Appellant further states that, “The damage done by Smith’s conflicting stories is readily apparent regardless of which version is true”, and that, “If Smith’s first version, that he was the driver, be accepted as the truth, his later position that he was not the driver, and his testimony to that effect certainly dealt the insurer a grievous blow in presenting any defense or attempting any settlement of the cause.”

Under the pleadings and stipulation of facts two issues are presented, to wit: (1) Was Daryl Dean Smith operating the automobile at the time of the collision; and (2) if he was, did his conduct in thereafter making conflicting statements to the insurer so breach the insurance Contract and so prejudice the insurer that plaintiffs, the judgment creditors of Daryl Dean Smith, are not entitled to recover in this proceeding?

Appellant’s single assignment under points and authorities, as hereinbefore set out, in effect, concedes that Daryl Dean Smith was operating the automobile in question at the time of the collision and an assignment that Daryl Smith was not operating the automobile, if it had been made, would appear to conflict with the other assignment made and relied upon (See Rochon v. Preferred Accident Ins. Co. of New York, Supreme Court of Errors of Connecticut, 118 Conn. 190, 171 A. 429, 430), nevertheless we shall rule both questions in this opinion.

Where a casualty is covered by liability insurance, our statutes, Section 379.195 and Section 379.200 RSMo 1959, V. A.M.S., create a right on the part of the injured person which attaches as of the date of the occurrence. The payment of the loss, when the amount is established by a judgment in favor of the injured person against the insured, does not depend upon the satisfaction by the insured of the final judgment rendered against him. State ex rel. McCubbin v. Ginn, Mo.Sup., 347 S.W.2d 119, 125[4], However, in an action by the injured party against the insurer, after a judgment has been obtained by the injured party against the insured, the injured party stands in the shoes of the insured and his rights are no greater and no less than the insured’s would have been in an action between the insured and the insurer, if the insured had paid the judgment to the injured party. Wackerle v. Pac. Employers’ Ins. Co., 8th Cir., C.A., 219 F.2d 1, 7, cert. denied, 349 U.S. 955, 75 S.Ct. 884, 99 L.Ed. 1279; Bauman v. Western & Southern Indemnity Co., 230 Mo.App. 835, 77 S.W.2d 496, 498[2],

The provision of the policy for liability insurance in question here requiring, as it does, that the insured shall cooperate with the insurer is a valid and enforceable provision in this state. Quisenberry v. Kartsonis, Mo.Sup., 297 S.W.2d 450, 453. And, where the policy contains an “omnibus clause,” the cooperation clause is just as binding on one using the automobile with the consent of the insured as it is on the named insured.

The burden of proof upon the question of compliance with the provisions of a policy ordinarily rests upon the insured, if he seeks to recover indemnity under the policy, or upon the injured party, as here, who stands in the shoes of the insured. However, while it may be stated generally, as we have, that plaintiff had the burden of proving the facts essential to the garnishee’s liability, yet in the instant case, where garnishee seeks to escape coverage solely because of an alleged breach of a policy provision requiring the insured to cooperate with the insurer, the burden was upon it to prove facts which would make that provision relieve appellant from liability. Kelso v. Kelso, Mo.Sup., 306 S.W.2d 534, 536[1, 2]; Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 101[1, 2]. See Fischer v. Western & Southern Indemnity Co., 233 Mo.App. 885, 110 S.W.2d 811, 815[1, 2], where the affirmative defense of failure to cooperate was sustained by a jury. And see Donaldson v. Farm Bureau Mut. Automobile Ins. Co., 339 Pa. 106, 14 A.2d 117, 118[1, 2],

We think the last mentioned rule applies in this case in view of the general terms of the policy in this respect; and that the burden of proving the affirmative defense of failure to cooperate in the respect charged rested upon insurer-appellant.

The specific terms of the cooperation clause providing for cooperation in particular respects as therein stated (such as attending trials, etc.) has been heretofore set out and it will be noted that appellant’s defense here is not based upon the matters specifically mentioned therein, but such defense rests upon a determination of whether the specific facts which appellant has now presented and here contends come within the meaning of the word “cooperate,” show a failure of the insured to cooperate with the insurer. It is evident that the first part of the provision, as to cooperation by the insured, is stated in a most general manner by use of a term “cooperate.” A multitude of matters other than those specified in the section might be said to be included under the term, depending upon the particular facts in the particular case. Such defensive facts are no doubt better known to the insured than to the injured party or the judgment creditor of the insured. Since the appellant now contends that the specific matters relied upon show a failure on the part of the insured to cooperate and are included within the general word “cooperate,” although not specifically set out in said section, the burden of proof rests upon appellant to prove the affirmative' defense that these alleged breaches are within the purview of the word “cooperate.”

Appellant cites Northwestern Mut. Ins. Co. v. Independence Mut. Ins. Co., Mo.App., 319 S.W.2d 898, 905[8, 9], where, with reference to the question of cooperation of the insured with the insurer, that court stated: “In assessing insured’s conduct it is not necessary for appellant [the garnishee] to show that insured’s conduct resulted in prejudice to the insurer, in view of the fact that Condition 2 constituted a condition precedent. * * * Even so, insured’s lack of cooperation, to exonerate insurer, must have been in some substantial and material respect. Lack of cooperation in an inconsequential or immaterial matter or manner will not justify a disclaimer of liability under the policy. If insured, however was guilty of lack of cooperation in a substantial and material respect, Northwestern cannot enforce the policy because Northwestern [the subrogee of the injured party] stands in the shoes of the insured. Its rights are derivative. * * * While it appears that insured’s cooperation was not hearty, fulsome or cheerfully given, the insurer was duly notified of the occurrence of the accident. * * * ” However, at 319 S.W.2d 898, 902, the same Court in the same case also stated: “Where the condition [breached] is expressly made a condition precedent, the insurer is relieved of liability whether or not the insurer has been injured or prejudiced by the breach of condition.” In the case now before us we hereinafter find compliance with condition No. 16 and No. 6 of the policy’s provisions and conditions.

Appellant further cites Home Indemnity Co. of New York v. Standard Accident Ins. Co. of Detroit, 9th Cir., 167 F.2d 919, 924, where the court said with reference to what constitutes cooperation with the insurer under a clause requiring cooperation, as follows: “Truthfulness seems to be the keystone of the co-operation arch. The insured must tell his insurer the complete truth concerning the accident, and he must stick to this truthful version throughout the proceedings. He must not embarrass or cripple his insurer in its defense against a civil suit arising out of the accident, by switching from one version to another. He must not blow hot and cold to suit his personal convenience.”

In Western Casualty & Surety Co. v. Coleman, 8th Cir., 186 F.2d 40, 44[4], an opinion by Judge Sanborn stated that: “The Missouri cases cited [in the opinion] have established the rule that failure of an insured to give notice of an accident will not defeat his rights under a liability policy unless it contains a provision for a forfeiture in that event or unless the insurer proves that the failure resulted in prejudice * *

In Hawkeye-Security Ins. Co. v. Davis, 8th Cir., C.A., 277 F.2d 765, 770, with reference to the case of Northwestern Mutual Ins. Co. v. Independence Mutual Ins. Co., supra, 319 S.W.2d 898, the court said: “The rule of law announced in Northwestern Mutual is in direct conflict with our understanding of the applicable Missouri law based upon the Missouri decisions as reflected by our opinion in Western Casualty & Surety Co. case. Prior Missouri decisions reflect a great reluctance on the part of the Missouri courts to find nonliability on a policy because of violation of policy conditions in the absence of a showing of prejudice to the insurer. The court in Northwestern Mutual makes no attempt to reconcile its holding with the prior Missouri cases or to distinguish such cases. It is possible that the Supreme Court of Missouri, when confronted with a problem such as here presented, may follow the St. Louis Court of Appeals decision in the Northwestern Mutual case. However, such a result is by no means forecast by the previous decisions of the Missouri courts.”

In the construction of an insurance policy, the rules to be followed are well settled. The policy is a contract. Plain and unambiguous language must be given its plain meaning. The contract should be construed as a whole; but, insofar as open to different constructions, that most favorable to the insured must be adopted. State ex rel. Security Mutual Life Ins. Co. v. Allen, 305 Mo. 607, 614, et seq., 267 S.W. 379, 381, 382; Wendorff v. Missouri State Life Ins. Co., supra, 1 S.W.2d 99, 101, 102 [4, 5]; Pierce v. Business Men’s Assurance Co. of Am., Mo.Sup., 333 S.W.2d 97, 100 [2, 4].

Any uncertainty, therefore, with reference to the meaning of the cooperation clause in question here must be construed against the insurer. Also, what constitutes cooperation or lack of it in the defense of an action as required by such a provision of a liability policy is usually a question of fact for the judge or jury hearing the cause. Finkle v. Western Automobile Ins. Co., 224 Mo.App., 285, 294, 295, 26 S.W.2d 843, 847 [5]; Nevil v. Wahl, 228 Mo.App. 49, 65 S.W.2d 123, 129[9, 11]; Donaldson v. Farm Bureau Mutual Ins. Co., supra.

In Quisenberry v. Kartsonis, supra, 297 S.W.2d 450, 453[1-4], the court stated: “The insured must perform the conditions of the contract upon which insurer’s liability depends and, absent fraud, bad faith, or collusion by insurer, the insured’s unexcused failure to cooperate in a substantially material respect releases insurer from liability under the policy as to the particular casualty in question. To establish a breach of a cooperation condition of an insurance contract requires a showing of inSured’s unexcused lack of cooperation in a substantially material respect. Generally, wil-fully misinforming the insurer as to facts essential to the preparation of a defense or insured’s collusion with a plaintiff to misrepresent material facts constitute breaches of cooperation conditions of insurance contracts. Finkle v. Western Automobile Ins. Co, * * * 26 S.W.2d 843, 846, 847; Fischer v. Western & Southern Indemnity Co., Mo.App, 106 S.W.2d 490, 491[1, 2].”

In view of the issues specifically submitted to the jury by the instructions given in the wrongful death action, it was conclusively established between plaintiffs and defendant in that proceeding that defendant was, in fact, driving and operating the automobile when it collided with a tree and plaintiffs’ daughter sustained the injuries resulting in her death. The same issue necessarily presents itself in this proceeding where a summons to garnishee has been issued in aid of an execution issued on the judgment entered on the verdict against defendant in the wrongful death case. In the pleadings garnishee has denied that Daryl Dean Smith was operating the automobile at the time and place in question and has alleged his failure to cooperate in the respects mentioned as discharging it from liability to plaintiffs.

The statement of facts concedes that on May 17, 1955, and prior to the collision, Daryl Dean had the permission of his father (to whom the policy of insurance had been issued) to use the automobile in question, the only restriction being that only Daryl Dean Smith should drive. At the scene of the collision Daryl Dean Smith advised the parties appearing there, including a patrolman, that he was operating the automobile at the time of the collision. Under the circumstances shown, this 16-year-old boy would have had little time for reflection or the presentation of a planned defense, nor would he likely have assumed the responsibility for the fatal injury to Ruth Meyers and injuries to others unless such was the fact. Further, the statement subsequently given to the insurance company reviewed the detailed facts and circumstances in a manner indicating that the party furnishing the statement stated the facts. In addition, we find nothing in the stipulation of facts tending to show that Ruth Meyers, age 14, had ever driven an automobile or that she could drive and, in view of her age, we may assume that she had no driver’s license and was not legally entitled to operate a motor vehicle. Nor can we be ignorant of the fact that boys of the age of Daryl Dean like to drive and would not likely permit a younger person to operate the automobile in any event.

We have also noted that, in addition to statements to various persons at the scene of the collision admitting that he was driving the automobile, he gave both a sworn statement and a further detailed statement to the insurer within a few days. The circumstances indicate that he was then speaking the truth. It was only after time for reflection and for conferences with others and time for the examination of the liability policy which provided only a $15,000 coverage for one person and $30,000 for each accident that he decided to change his statement and say that plaintiffs’ decedent was operating the automobile. We also note from the record that when suit was instituted his father was included as a defendant, a circumstance that was no doubt anticipated. After carefully reviewing the entire record as presented to us, we reach the conclusion that Daryl Dean Smith stated the true facts to the insurance carrier in the first instance. We can only guess as to the particular facts and circumstances causing him to change his story. If he did correctly advise the company of the true facts, as we believe that he did, there was no failure to cooperate with the insurer, even though such statement left the insurer little room for a defense as to liability for the death of one and the injury to other passengers in the automobile. We refuse to believe that these surviving teenagers, under the circumstances presented, wilfully gave false information to those that appeared on the scene to help them or to the insurance company that promptly made an investigation of the attendant facts. It was only after plenty of opportunity for reflection and outside influences that they repudiated their voluntary statements, and so stated the facts that the insurance carrier had two defenses, to wit: (1) that the defendant, its insured under the omnibus clause of the policy, was not operating the automobile; and (2) that plaintiffs’ decedent was guilty of contributory negligence in producing her own death. We give the testimony of the surviving teenagers, as given at the jury trials, no more credence on the issue of liability than the jury gave to their testimony in the wrongful death case or the trial jud'ge' gave to it in deciding this case.

As stated, appellant assigns the giving of conflicting statements to the insurer as evidencing a failure to cooperate and the insurer seeks to avoid all liability under its policy on the alleged ground of defendant’s failure to cooperate, not on any grounds expressly stated in the policy as evidencing non-cooperation, but upon the factual grounds set out in the stipulation of facts.

Appellant bitterly complains that the statements of the insured and his surviving companions at the scene of the tragedy were used to impeach the testimony of these same witnesses at the trial. In other words, appellant contends that it should have had the benefit of what we believe to have been false testimony, without having it weakened by proof or admissions as to prior conflicting statements of these witnesses at the scene of the collision.

As stated, we do not construe the statements made by the insured at the scene of the collision, or the statements given the insurer upon its investigation, to sufficiently evidence a failure by the insured to cooperate with the insurer. We find that the statements given by the insured to the insurer at that time were true. We must now determine whether the insured’s subsequent statement that he was not operating the automobile and his testimony to that effect in the several trials, as a witness for the insurer, constituted a failure to cooperate with the insurer. We find that it did not.

On the issue of failure of defendant-insured to cooperate with the insurer, the record, in our view, shows cooperation beyond the call of duty required by the cooperation provision. And see De Hart v. Ill. Casualty Co., 7th Cir., C.A., 116 F.2d 685, 687. Most of the cases cited in the briefs, or found by us, deal with the issue of lack of cooperation with the insurer by reason of a change of testimony, from favorable statements to unfavorable statements. Here the facts are to the contrary, because, under the insured’s original statement and affidavit, the insurer was in effect foreclosed on the issue of liability, while after the change in testimony, whether false or true, the insurer had two defenses, as hereinbefore stated.

In view of our finding that Daryl Dean Smith was, in fact, operating the automobile at the time of the collision, we have concluded that appellant was not prejudiced by the subsequent statements of the insured which the insurer accepted and used as a basis for a defense to plaintiffs’ action. On the record presented we find no prejudice to appellant on account of any alleged failure to cooperate with the insurer.

The judgment is affirmed.

All concur.


author: PRITCHARD, Commissioner.

text:
    Leta Blanche PAINTER, Respondent, v. KNAUS TRUCK LINES, INC., a Missouri Corp., Appellant.
    No. 49906.
    Supreme Court of Missouri, Division No. 2.
    Jan. 13, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Eeb. 10, 1964.

      Hunter, Chamier & Motley, Moberly, for appellant.
    Edwards, Hess & Collins, Macon, Bol-low, Crist & Oswald, Shelbina, for respondent.
   PRITCHARD, Commissioner.

In this personal injury action, which is the result of an automobile-truck collision, defendant appeals from a judgment for plaintiff based upon the verdict of a jury •in the amount of $24,500.

Inasmuch as defendant first complains that plaintiff made no submissible case on her sole theory that defendant, by its driver, Kern, failed to keep its westbound truck on the north half of the east-west highway, but instead drove it onto the south half of the highway when the eastbound Valiant automobile operated by plaintiff was approaching so closely as to constitute an immediate hazard, we set out the facts in their light most favorable to plaintiff, and disregard defendant’s evidence except insofar as it may aid the plaintiff. Christie v. Gas Service Company, Mo., 347 S.W.2d 135, 137 [1].

On the fateful day, April 26, 1961, of the collision between plaintiff’s Valiant automobile and defendant’s tractor-trailer truck, plaintiff had driven her husband to the schoolhouse where he worked in Paris, Missouri, at about 1:00 P.M. She went to a department store in Paris, then started to go to the IGA store, but decided she would go on out to “White’s Delight” on U.S. Highway 24 to meet a friend and to get something to eat. When she arrived there traffic was coming from behind her, from the south and from the west on Highway 24, and rather than stop traffic, she went west three miles on Highway 24 to the Mark Twain Cafe where she turned around and started back east. As she came to a hill just east of the Mark Twain Cafe and started down she saw defendant’s truck coming from the east down a hill at a speed of sixty-five miles an hour. Plaintiff was then driving in her lane on the south side of the highway about forty-five miles an hour, and she saw the north part of the truck go off of the north side of the highway “Somewhere about Junior Hogan’s house” (defendant’s vehicle came to rest in the front yard and ditch of Hogan’s house after the collision which occurred some 234 feet to the east). Then the truck came back onto the highway and crossed the center line at a time when plaintiff was 100 to 300 feet to the west of the truck when she was about Junior Hogan’s house, but she did not know whether she was east or west thereof. At this point the paved portion of the highway is 22 feet wide, with shoulders 10 feet wide on the north and 11 feet wide on the south. Plaintiff remembered taking her foot off of the accelerator when the truck crossed the center of the highway. She did not remember anything thereafter concerning the collision, and her physician described this as amnesia in this case — a partial loss of memory of unpleasant facts.

On cross-examination plaintiff stated she did not know where her car was, which side of the center line it was on when the accident occurred, and she did not know whether she put on her brakes, or swerved to the left. Plaintiff had driven a car since 1933 to town on errands, out to her folks and to her sister’s.

Witness Highway Patrolman Swartz, who arrived at the scene of the collision at 3:05 P.M., having been called thereto at 2:45 P.M., testified that he found scraped places on the pavement 4½ feet north of the center line, with tire marks southeast and east leading up to the rear of the Valiant which was headed northeast in the north lane 126 feet east of the scraped places, and witness Sheriff Bodine substantiated that testimony. Bodine also testified that there were two dark tracks that started in the south lane and went in a northeast direction across the center line to the scraped place. Witness Clyde Ragsdale, driving east, came upon the scene of the collision just as defendant’s truck was going south across the highway towards Hogan’s front yard. He saw a very faint track, two marks parallel to each other in the south lane, the left mark was three and a half feet south of the center line, which looked to him like the car (probably plaintiff’s car) had gone to the north or northeast, and from the west end of the tire marks to the point where they turned northeast it was five feet shorter than the rail in front of the jury box.

With respect to the debris on the highway near the point of the collision, the testimony conflicted, but some of plaintiff’s witnesses who were at the scene of the collision prior to and at the time some of the debris was being kicked off to the south of the highway to permit traffic to go through testified favorably to plaintiff concerning the location of debris prior to its being moved. Witness Ragsdale testified he saw quite a lot of debris on the south side of the middle line. Alva Clem testified most of it was on the south side of the division. Lester Skaggs, who started flagging cars at the scene just after the collision happened, testified that at that time all of the debris was on the south side of the road. Julius Earl Gill saw a lot of debris on the road, the bulk of which was in plaintiff’s eastbound lane — there was some over the black line too. Lindell Hol-lensteiner testified there was debris in both lanes of traffic, and the majority of it was in the eastbound lane. Raymond Hogan testified that the biggest percent of the debris, being parts off of both vehicles, was located on the south side of the center line. Jack Wills testified that he (with others) kicked a little bit of the debris, which was located on the south lane of the highway, off the highway. Highway Patrolman Swartz testified he did not recall any debris scattered about the pavement in the general area where the scraped mark on the pavement was, but there was probably more debris south of the center line. According to other witnesses, Swartz arrived at the scene after some of the debris had been moved off the highway.

Corroborating plaintiff’s direct testimony that defendant’s truck first went off of the north side of the highway prior to the time it came over the center line into plaintiff’s lane of travel when she was 100 to 300 feet away from it, were the observations by several witnesses of dual tire marks on the north shoulder just east of where plaintiff’s Valiant came to rest. Ragsdale testified there was a dual mark in an arc which went off the road and came back on not very far east of the Valiant. Guthrie testified there was a dual wheel mark from a truck on the north shoulder which began east of the Valiant and went up past it a little ways and disappeared. Sheriff Bo-dine testified there were two dual wheel tracks running on the north half of the road and shoulder, running either easterly or westerly quite a way up from the Valiant, and the tracks could be seen on the driving portion of the road where the brakes were applied. Wills’ testimony was that there was a dual wheel mark 50 feet east of the Valiant and on the north shoulder where a vehicle had left the highway and had come back on it.

The photographs of the Valiant made after the collision show the left front end and side thereof to be more severely damaged, and the right front wheel thereof appears to be turned to the left. The front view of defendant’s tractor, taken at the point where it came to rest, shows its left front bumper to be broken and badly damaged, and the front wheels are cramped to' the right.

Section 304.015, subd. 2, RSMo 1959, V.A.M.S., provides, “Upon all public roads or highways of sufficient width a vehicle shall be driven upon the right half of the roadway, * *

From the foregoing facts which were directly testified to by the plaintiff, the jury could reasonably find that as these two vehicles approached each other at a combined speed of 110 miles per hour, or approximately 165 feet per second, defendant’s truck went off the north edge of the pavement and then came back onto the pavement and travelled across the center line at a time when plaintiff’s Valiant was 100 to 300 feet away, thus confronting plaintiff, who was then travelling in her lane with her left wheels 3½ feet south of the center line, with an apparent danger of collision for which she had from .6 to 1.8 seconds to attempt to avoid. Thus the jury could have reasonably found that defendant’s driver violated said Section 304.015, subd. 2, at a time when such violation constituted the proximate cause of the collision and plaintiff’s injuries. While there is circumstantial and somewhat conflicting evidence as to the point of impact, the evidence of the negligence of the driver of the truck in crossing the center line is direct and the same occurred prior to the impact. This establishes the plaintiff’s case. Whatever plaintiff may have done after she was suddenly confronted with the danger of collision has no bearing on the issue of whether plaintiff made a submissible case upon her sole theory that the truck driver failed to keep his vehicle on the north (right) half of the highway, and drove it to the south half thereof when plaintiff was approaching so closely as to constitute an immediate hazard.

Cases under the “rule of the road” statutes, which required a driver to operate his automobile as far to his right side of the highway as practicable and which were in effect prior to the 1953 enactment of said Section 304.015, subd. 2, are helpful here. In Biggs v. Crosswhite, 240 Mo.App. 1171, 225 S.W.2d 514, 519 [1], it was said:

“This statutory 'rule of the road’, Sec. 8385(b), RSMo 1939, Mo.R.S.A., is not ■confined to the exact point of collision, but would embrace the entire course of ■departure from and return to the right-hand side of the road where such devi•ating course is shown likely to have ■caused confusion in the minds of drivers of approaching vehicles as to the ■ultimate course of the car so deviating and thus causing or contributing to the cause of the collision.”

See also the cited cases in Biggs: La Pierre v. Kinney, 225 Mo.App. 199, 19 S.W.2d 306, 310; Roberts v. Atlas Life Ins. Co., 236 Mo.App. 1162, 163 S.W.2d 369, 373.

Here, the jury could find from the ■direct testimony of plaintiff that defendant’s truck came over onto her side of the highway, then, from all the circumstances in evidence (the scraped place in the north lane and the tire marks leading up to it rather sharply from the west, the fact that the wheels of plaintiff’s car were turned to the left and those of defendant’s tractor were turned to their right when both vehicles came to rest, then plaintiff’s tracks ■continued southeasterly and easterly to the resting place of her Valiant, and defendant’s truck tracks went north to the north shoulder then southwesterly to where it came to rest in Hogan’s front yard and ditch), that the impact occurred 4i/£ feet north of the center line, but that plaintiff veered sharply to her left to avoid defendant’s truck which turned to its right and back toward its own lane. The fact that the collision might have happened in the north lane does not relieve defendant of its liability for negligence in crossing the center line from its right half of the roadway at a time when both vehicles were approaching each other at their combined speed of 110 miles per hour and when they were 100 to 300 feet apart, plaintiff being then in her own lane. These are questions for the jury, and they do not, under this record, require speculation and guesswork, nor is it required that the jury pile inference upon inference to reach its ultimate conclusion of defendant’s negligence in crossing the center line. The foregoing facts and circumstances demonstrate clearly that there is no “void” in plaintiff’s evidence as to the movement and the relative positions of the two vehicles immediately prior to the collision, for which contention defendant relies upon Schoen v. Plaza Express Co., Mo., 206 S.W.2d 536, in which the direct and circumstantial evidence was held to be insufficient to show the position or the movement of the defendant’s truck upon the highway with reference to the right-hand side thereof. See also defendant’s cited case of Borrini v. Pevely Dairy Co., Mo.App., 183 S.W.2d 839, 844 [6].

The trial court did not err in overruling defendant’s motion for directed verdict and in submitting this case to the jury upon plaintiff’s aforesaid theory of defendant’s negligence.

We turn now to defendant’s claimed errors in the giving of instructions numbered 1 and 6 for the plaintiff.

Instruction 1 required the jury to find that defendant’s driver, Kern, was operating a tractor-trailer unit in a generally westerly direction, and plaintiff was operating a Valiant automobile in an easterly direction, on U.S. Highway 24, that a collision occurred between the two vehicles on the roadway which was of sufficient width to permit Kern to drive upon the right or its north half, that he failed to do so but instead drove onto the south one-half of said highway at a time when said Valiant was approaching so closely as to constitute an immediate hazard. The jury was then required to find that these acts were negligent and that such negligence proximately caused the collision and resultant injuries to plaintiff, and further required the jury to find that plaintiff was not negligent under Instruction A (plaintiff’s contributory negligence) and Instruction F (plaintiff’s negligence under defendant’s counterclaim).

Defendant first says that Instruction 1 is not supported by the evidence or Ae reasonable inferences deducible therefrom in that the plaintiff produced no circumstantial evidence that the truck crossed the center line “so closely as to constitute an immediate hazard” ; that such clause must reasonably be interpreted to mean that defendant’s truck crossed the center line at such an angle that its course, when extended in time and space, would collide with plaintiff’s Valiant wherever it was, that the record is silent as to the angle at which the front of the truck crossed the center line, how long it remained over the line, or how far it travelled over the line. This contention is without merit. The evidence shows that defendant’s truck went off the north edge of Ae pavement in an arc some fifty feet east of where the Valiant came to rest (this being 126 feet east of Ae scraped place which the jury could have found was the point of impact), then travelled back onto the north lane, crossed it, then came over the center line when plaintiff was in her lane 100 to 300 feet away. It is true that plaintiff did not remember anything after the truck crossed the center line, but the jury could reasonably infer from the circumstantial evidence above mentioned, that by reason of Kern’s failure to keep the truck on the north half of the highway within Ae time and distance between the two vehicles they then were on a collision course, even though the impact may have occurred M/z feet north of the center line, and that Ae act of Kern in crossing Ae center line constituted negligence which proximately caused the collision. The jury under this instruction would necessarily be limited to the testimony of plaintiff concerning Ae speeds and distance between the vehicles at the critical time that defendant’s truck came from its north lane across Ae center line in order that it might find that Ae same occurred when plaintiff was approaching so closely as to constitute an immediate hazard. See Harris v. Hughes, Mo.App., 266 S.W.2d 763, where under a Kansas statute similar to Section 304.015, subd. 2, supra, an instruction submitting acts of the defendant there in failing to remain on his east half of the highway, but instead drove onto the plaintiff’s west half thereof, was approved. See also Miles v. Gaddy, Banc, Mo., 357 S.W.2d 897, 902 [5], where it is said that in case of a statutory violation, it is generally sufficient to couch Ae verdict-directing instruction substantially in Ae language of the statute. This was done in this case by Instruction 1, except that the additional finding was included that Kern’s negligence occurred while plaintiff was approaching so closely as to constitute an immediate hazard. Certainly, defendant may not effectively claim prejudicial error in this latter additional burden assumed by plaintiff.

Defendant next claims that Instruction 1 in effect required the jury to find that defendant came across the center line and hit plaintiff’s Valiant on her side of the road. Suffice it to say that Ae instruction requires Ae jury to find that a collision occurred, and it does not specify that it took place in the south lane of Ae highway, although from the circumstantial evidence of Ae location of most of the debris Ae jury could reasonably find Aat the impact did occur in Ae plaintiff’s lane of travel.

Under Instruction F, given by Ae court for defendant on its counterclaim for damage to its tractor-trailer unit, defendant’s theory was that plaintiff drove the Valiant to her left and into defendant’s proper westbound lane so as to cause Ae same to collide with defendant’s tractor and trailer unit. Instruction 6, here attacked by defendant, required the jury to find that plaintiff was driving her car without negligence on her part on Ae south half of the highway, and that she was suddenly confronted with the defendant’s truck approaching her on Ae south side of the highway and in such close proximity that the plaintiff did not have sufficient time to determine with certainty the best and safest course to pursue, and that she turned her car to the left to avoid the collision, exercising such care as a very prudent and careful driver would have exercised under Ae circumstances then and there existing, then plaintiff was not negligent in failing to operate and keep her car on the right half of the highway and defendant was not entitled to recover of plaintiff on the counterclaim on that assignment of negligence.

Defendant claims that the submission of Instruction 6 is beyond the scope of the pleadings. However, the matter of the emergency is not required to be pleaded as an affirmative defense. There is no confession here of plaintiff’s negligence and an avoidance thereof. The instruction requires the jury to find that plaintiff was operating her car without negligence. In Jones v. Hughey, Mo., 283 S.W.2d 550, 552 [1-3], the court said:

“The emergency doctrine is not a defense and a defendant is not automatically exonerated because an emergency existed. The doctrine is a principle of law which means the fact that action was taken in an emergency is a factor that may be considered in determining the reasonableness of the action. Rohde v. St. Louis Public Service Co., Mo.Sup., 249 S.W.2d 417.”

Defendant’s further contention is that the hypotheses in Instruction 6 that defendant’s truck was “approaching her upon the south side of the highway” and that she “turned to the left to avoid the collision” are not supported by the evidence. This contention is not well taken. Reference to plaintiff’s evidence shows that the truck crossed into her lane when she was 100 to 300 feet away and at a closing speed of some 110 miles per hour. If these facts are true, as the jury must have believed, then defendant was approaching plaintiff on the south side of the highway. There was also ample evidence, above stated, circumstantial in nature, that plaintiff veered sharply to her left just shortly before the impact, and defendant’s driver, Kern, also testified that the plaintiff made a sharp turn across the center line, and from this circumstantial and direct evidence the jury properly could infer that the conduct of defendant’s driver in so crossing the center line induced plaintiff to make an emergency turn to her left to avoid the collision. Brawley v. Esterly, Mo., 267 S.W.2d 655, 660 [8]; Filkins v. Snavely, 359 Mo. 356, 221 S.W.2d 736, 738 [3-5],

The discussion above concerning Instruction 1 shows that the theory therein submitted to the jury is not inconsistent with the theory of sudden emergency submitted as a defense to defendant’s counterclaim in Instruction 6, as contended by defendant, because Instruction 1 did not require the jury to find that the collision occurred in tire south lane, or exclude a finding that it did occur in the north lane. The ground of negligence (necessarily reiterated throughout this opinion) relied upon by plaintiff in Instruction 1 is simply that defendant’s truck crossed the center line when plaintiff was approaching so closely as to constitute an immediate hazard.

Under all of the direct and circumstantial evidence in this case, the court did not err in the giving of Instruction 6.

The medical evidence in this case shows that plaintiff, Mrs. Painter, being 48 years old at the time of trial, and being previously in good health, had a life expectancy of 30.-44 years. She was unconscious at the accident scene, and when she was taken to the hospital, where she remained for 47 days, she was in profound shock in which she remained for three days, during which time she showed gradual improvement in her condition of shock. She suffered a severe brain concussion from which she made good recovery, but she now has severe headaches. During the time she was in the hospital, her chest cavity filled with blood, but it took care of itself, as did a condition of paralytic ileus although plaintiff testified she still had constipation trouble at the time of trial. There was a separation of the 8th, 9th and 10th costal cartilages where the ribs join the breast bone, which, according to plaintiff’s physicians, is a permanent, pain producing injury. There was a comminuted fracture of her left knee which necessitated surgery for a complete removal of the kneecap, which causes an instability of the left knee with lack of strength in the ligaments of the knee joint, with limitation of motion thereof, a permanent condition.

Plaintiff’s left ankle was fractured through both malleoli, with displacement of fragments which required wires and screws to hold into place. The screw placed by the surgeon in the bone of plaintiff’s ankle still remains therein and this area is still quite tender. As a result of the fracture and subsequent healing thereof, plaintiff’s foot is everted to the outside with a deformity, which plaintiff will never overcome, in the foot and ankle. Arthritis has started to develop in the ankle and the prognosis is that it will continue to do so. There were multiple dislocations of the bones of the left foot, and the second metatarsal was fractured, all of which required pins and traction to reduce because of torn ligaments. After reduction of the bones of the foot a plaster cast was applied. There is arthritis developing in the joint spaces of the foot, with decalcification of the bones and deformity. The pain is permanent, and there is a permanent injury to the ligaments of the foot.

Plaintiff testified that she was in a wheel chair until Christmas during which time she also used two crutches, then she used one crutch until April or May, 1962, at which time she wore bowling shoes for support and comfort. She cannot walk without shoes, she limps, and the ankle and knee are weak, with severe pain all the time. She has three scars on her foot. She had back pain from the accident, and walking has made it severe. Her physicians testified that the ankle deformity will cause abnormal stress on the ligaments of the knee and hip, and upon her low back where arthritis will develop.

In thus stating plaintiff’s injuries, defendant’s last point that the verdict of $24,500 is excessive is brought into focus. In attempting to buttress this contention defendant has cited several older cases of this court. Pitcher v. Schoch, 345 Mo. 1184, 139 S.W.2d 463, was decided in 1940, in which this court reduced a judgment of $18,000 tee $13,000, where a 47 year-old-woman had suffered a compound, comminuted fracture-of both bones of the left knee between the-knee and the ankle, the injuries to the left leg being permanent. In Bowman v. Standard Oil Co. of Indiana, 350 Mo. 958, 169 S.W.2d 384 (1943), a $20,000 verdict to a 61 year-old-woman was successively reduced by the trial and appellate court to $10,000, there being a nonunion of a fracture of the left femur at the neck of the bone, injuries to the right shoulder with limitation of motion at the time of trial, injuries to the hip region and laceration on the right side of her forehead. Her condition was permanent. In Berry v. Emery, Bird, Thayer Dry Goods Co., 357 Mo. 808, 211 S.W.2d 35 (1948), an award of $30,000 to a 54 year-old-woman was held to be excessive by $12,000, where her injuries consisted of a painful, permanent injury to her left leg occasioned by a comminuted fracture of the right tibia and heel bone, and she-had a fracture of the 3rd and 4th ribs on the-right side.

The 1933 case of Christiansen v. St. Louis Public Service Co., 333 Mo. 408, 62 S.W.2d 828, is not particularly a guide for our present case because of its age, but an award of $18,000 was there reduced to $15,000 for an ununited fracture of the left hip of the femur.

Defendant has pointed to no recent case where a verdict of $24,500 upon injuries comparable to those suffered by plaintiff here has been held to be excessive. In considering this question, the rule is that each case must be decided upon its own peculiar facts. Myers v. Karchmer, Mo., 313 S.W.2d 697. Plaintiff’s age, and the nature, extent, and permanency of her injuries are paramount factors in determining if her award is excessive. Young v. St. Louis Public Service Co., Mo., 326 S.W.2d 107. The facts of the above-cited cases of defendant show considerable variance from the facts of injuries of the plaintiff here. On the other hand, plaintiff has cited two recent cases on injuries similar to those here, which cases are more helpful in applying the rule of maintaining a reasonable uniformity of amounts of verdicts. De Mariano v. St. Louis Public Service Company, Mo., 340 S.W.2d 735, involved a consideration of progressive and permanent injuries to a 46 year-old-woman, where the trial court reduced a $40,000 verdict to $30,000 which was allowed to stand by this court. Plaintiff there had sustained a sub-capital fracture of the neck of the right femur with displacement posteriorly of the head of the femur in relationship to the neck thereof, and the plaintiff had never been able to walk without a crutch since the accident, and had restriction of movement of her hip and difficulty in getting down stairs, and she could not bend over to put on her right shoe.

In Humes v. Salerno, Mo., 351 S.W.2d 749, where there was little evidence of loss of earnings, and medical expenses amounted to $1,000 to $1,500, there was an injury from the bite of a vicious horse by which the 37 year-old-plaintiff suffered a fracture of the right fibula two or three inches below the knee, and an injury to the superficial peroneal nerve and damage to the leg muscle which caused an atrophy in the calf of the leg. The nerve was operated upon for a neuroma and there might have been another one in the area which would have to be removed. Plaintiff there was ambulatory and working, and his doctor said he would eventually be able to do without a leg brace. A verdict of $30,000 was reduced by this court to $23,500.

Here, plaintiff’s residual and permanent injuries primarily consist of a painful, disabling injury to her left ankle and leg, and her left foot, with deformities; a complete loss of her left kneecap with resultant weakness and instability; some arthritis is already developing in the ankle and foot, with a prognosis of more arthritis developing in the future, even to the low back by reason of the stress placed thereon from the deformed foot. Considering plaintiff’s age and the severity and permanency of her injuries, we are not persuaded that the verdict herein is excessive, and this point is ruled against defendant.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.