author: BOHLING, Commissioner.

text:
    Leo H. VOLKERDING, Respondent, v. Hugo B. BROOKS, his unknown consorts, successors, representatives, assigns, devisees, donees, alienees, or any immediate, mesne or remote voluntary or involuntary grantees, if they or any of them be living, or their, or any of their unknown heirs, consorts, successors, representatives, assigns, devisees, donees, alienees, or any immediate, mesne or remote voluntary or involuntary grantees, if they or any of them be not living, and the unknown wife, if any, of Hugo B. Brooks, and her unknown consorts, heirs, successors, representatives, assigns, donees, devisees, alienees, or any immediate, mesne or remote voluntary or involuntary grantees, Appellants.
    No. 48919.
    Supreme Court of Missouri, Division No. 2.
    Sept. 10, 1962.

      Frank W. Jenny and James A. Cole, Union, and Theodore P. Hukriede, Washington, for appellant.
    Robert Hoelscher, Warrenton and Leo A. Politte, Washington, for respondent.
   BOHLING, Commissioner.

Action filed July 18, 1957, by Leo Volk-erding in two counts. Count I was in ej ectment for possession, damages and rent of certain specifically described Missouri River island land originally lying between the Missouri counties of Franklin and Warren, subject, however, to certain exceptions therefrom belonging to Hugo B. Brooks. Count II was to quiet and determine title in plaintiff to the aforesaid land, exceptions excluded. Defendant Brooks filed answer and, so far as material to this review, set up as to each count title in himself to the land described in plaintiff’s petition by adverse possession and also by reason of accretions to certain land owned by him and mentioned in plaintiff’s petition, and prayed that Count I of plaintiff’s petition be dismissed and, under Count II, that title to the land involved be ascertained and determined to be in said defendant. Plaintiff’s reply denied the allegations of the answer setting up ownership in defendant. The trial court found the issues on both counts in favor of plaintiff; found that plaintiff was entitled to the possession of the land described in his petition, the exceptions excluded, and $1.00 damages, and that plaintiff was the owner of said land and that defendant Brooks had no title or interest therein. Defendant Brooks has appealed.

The case was tried to the court without a jury and is reviewable here upon both the law and the evidence. The judgment, however, is not to be set aside “unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Civil Rule 73.01(d), V.A.M.R.; Erickson v. Greub, Mo., 287 S.W.2d 873 [1], “All fact issues upon which no specific findings are made shall be deemed found in accordance with the result reached.” Rule 73.01(b), supra.

At the times material here the boundary between Franklin and Warren Counties was “the middle of the main channel of the Missouri River.” G.S.186S, p. 200, § 66 — Franklin County; G.S.1865, p. 194, § 44 — Warren County; Nothstine v. Feldmann, 298 Mo. 365, 375, 250 S.W. 589, 593; Nothstine v. Feldmann, 320 Mo. 500, 511, 512, 8 S.W.2d 912, 916. By acts of the General Assembly, lands belonging to the state and formed by the recession and abandonment of the “old beds of lakes and rivers” in this state, including the area here involved, were granted and transferred to the counties in which such lands were located. Consult Laws 1895, p. 207; Laws 1899, p. 276. Large areas, including that here involved, formerly a part of Franklin County became a part of Warren County by the shifting of the main channel of the Missouri River southward from its north bank to south of said areas; and about 1924 the qualified voters of the two counties changed the boundary between said counties to accord with said change in the river’s channel. Consult Mo.Const.1875, Art. 9, §§ 3, 4.

In May, 1914, J. M. Moore, County Surveyor of Franklin County, surveyed the west end of Boueff (sometimes spelled Boeuf) Island for Franklin County, said island being then a part of said county, which survey covered sections 28, 29, 30, 31, 32, and 33 of Township 45, Range 2 West in Franklin County, Missouri, and was recorded in August, 1914, in Vol. 8, p. 230 of the Surveyor’s Records of Franklin County.

Thereafter, on January 5, 1915, the County Court of Franklin County, by an “Accreted Land Patent,” sold and conveyed, for the consideration of $115.20, to William T. Barrett and Harry L. Barrett, brothers, “all of the South fractional half of the Southeast quarter of Section Thirty, Township Forty-five, Range Two, west; as per plat of survey of J. M. Moore, County Surveyor, recorded in Volume 8, page 230, of Surveyor’s Records of Franklin County, Missouri, and containing Seventy-two acres, more or less.” This deed was recorded in Franklin County on January 11, 1915, and in Warren County on October 15, 1926.

On July 19, 1956, plaintiff acquired the title of the Barrett brothers by quit claim deed in which the land was described according to the Warren County survey and which deed first described 124.44 acres as being conveyed but, however, specifically excepted therefrom 26.81 acres within said description belonging to defendant Brooks, leaving a total of 97.63 acres, more or less. We understand plaintiff claims the additional 25.63 acres as accreted land to the Barrett “Seventy-two acres, more or less.”

Plaintiff’s petition describes the land involved as set forth in said quit claim deed, to-wit:

“A certain tract of land laying North of the Missouri River and situated in the Northwest quarter and the Southwest quarter of Section 31 Township 45 North, Range 2 West, Warren County, Missouri. Bounded as follows: Beginning on the West line of said Section 31 a distance of 6.78 chs. South of the Northwest corner thereof and at the Southwest corner of a 41.56 acre tract belonging to Hugo Brooks. Running thence with the South line of said Brooks tract S. 80 deg. 00' E. 40.67 chs. to the Southeast corner thereof on the quarter section line at a point which is 14.00 chs. South of the North quarter corner of said section 31; thence with the quarter section line South 43.00 chs. to the Missouri River; thence up stream following the meanders of said River Northwestwardly to a point on the West line of said Section 31; thence with the said section line North 19.22 chs. to the place of beginning, containing 124.44 acres, more or less.

“EXCEPTING however, therefrom 26.81 acres belonging to Hugo Brooks and being all of tracts 1 and 2 of accreted lands sold by Warren County to John Steffen on the 6th day of May, 1926, which excepted tracts are described as follows:

“TRACT NO. 1 (Swamp land Record Book — Page 146-147) Part of the Southeast quarter of the Northwest quarter of Section 31 Township 45 Range 2 West, bounded as follows: Beginning at the center corner of said Section 31 running thence North 12.75 chs. to corner; thence S. 80 deg. 56' West 9.34 chs. to stake; thence S. 55 deg. 58' West 12.97 chs. to stake; thence South 4.00 chs. to corner; thence East 20.00 chs. to place of beginning, containing 19.31 acres, more or less.

“Tract No. 2: Part of the Northeast quarter of the Southwest quarter of Section 31, Township 45 Range 2 West, bounded as follows: Beginning at the center corner of said Section 31, running thence West 20.00 chs. to corner; thence S. 69 deg. 27' E. 21.-36 chs. to corner; thence North 7.50 chs. to the place of beginning containing 7.50 acres, more or less.”

Defendant Brooks’ 26.81 acres, excepted from the land claimed by plaintiff, is bounded on the east by the east line of the northwest quarter of Warren County Sec. 31, the northernmost point being approximately 60 feet south of the land conveyed by Franklin County to the Barretts in 1915, and is at or near the west end of Goose Island, an island south of Boueff Island.

John L. Cochran, a qualified surveyor and registered engineer, prepared a plat, Plaintiff's Exhibit C, based on the Moore survey of May, 1914, for Franklin County, a survey of accreted land north of Goose Island in sections 31, 32 and 33, Twp. 45, Range 2 west, Warren County, surveyed by order of the County Court on December 17 and 18, 1947, by Benj. F. Frick, County Surveyor of Warren County, and deeds.

The United States Government surveys extended only to and terminated with the north and south banks of the Missouri River as said banks existed at the time of said surveys. This gives rise to confusion in the location of the corners and section and other lines in the area involved, in that when the respective corners and section lines of Franklin County are extended across the channel of the Missouri River they do not coincide with the corners and section lines of Warren County. Surveyor Cochran, as a result of said confusion, showed the section numbers, corners and lines of the Franklin County survey in red and of the Warren County survey in black on Plaintiff’s Exhibit C. For the practical purposes of this appeal the Franklin County survey corners and lines appear to be approximately one-half mile west and practically a quarter of a mile south of the corresponding corners and lines established by the Warren County survey. This results in showing the northwest quarter of Sec. 31, Warren County, overlapping part of the south half of the southeast quarter of Sec. 30, Franklin County.

Mr. Cochran dug down six feet to find the corners of Sections 28, 27, 34 and 33 for a starting point to show the Franklin County lines on Plaintiff’s Exhibit C, and he found the other stones and iron pipes marking the old corners for the section and other lines on said exhibit.

Surveyor Cochran surveyed defendant’s 41.56acres but did not survey any more land. His survey of the 41.56 acres started about 15 feet west of defendant’s barn thereon and at the Warren County survey corner of Secs. 30 and 31, thence ran south 447.48 feet along the west line of Sec. 31, thence south 80° 00' east 2180.6 (2684.22?) feet to the north-south center line of Sec. 31, thence north on said center line to the north line of Sec. 31, thence west along said north line to the point of beginning. Approximately one-half of said 41.56 acres laps over onto the Franklin County fractional one-half of the southeast quarter of Sec. 30 conveyed by Franklin County to the Barrett brothers. Plaintiff makes no claim to that portion of said 41.56 acres so overlapping said Franklin County land; and, we understand, proceeds on the basis that the south line of said 41.56 acres is the north line of plaintiff’s land in Franklin County Sec. 30 (Warren County Sec. 31). Cochran testified he was able to locate and plat that portion of Plaintiff’s Exhibit C south of said 41.56 acres from the descriptions in the deeds and the plats shown on the records of the surveyors.

Plaintiff’s Exhibit C, as we read it, indicates that at the time of surveyor Moore’s Franklin County survey about the west two-thirds of the south line of the south fractional half of the southeast quarter of Franklin County Section 30 was the Missouri River. Said exhibit, following plaintiff’s description of the land in the first paragraph of his description in his petition, taking the south line of Brooks’ 41.56 acres as plaintiff’s north line, extends the east line of plaintiff’s land from the southeast corner of Brooks’ 41.56 acres south on the quarter section line of Warren County Sec. 31 “43.00 chs.” (2838 feet) to the Missouri River, thence northwestwardly following the meanders of said River to a point on the.west line of Sec. 31, and thence, with said section line, north “19.22 chs.” (1268.-52 feet) to the southwest corner of Brooks’ 41.56acres, containing 124.44 acres, more or less, excepting, however, therefrom the two subsequently described tracts, containing a total of 26.81 acres, belonging to defendant Brooks, describing, as stated, 97.63 acres as plaintiff’s land. (Technically, as we read this record, plaintiff’s west line should be the west line of the Franklin County conveyance of 1915 to the Barretts, approximately 93 feet east of the west line of Warren County -Sec. 31.)

As stated, Cochran only surveyed the 41.56acres, the south line of which is the north line of the land claimed by plaintiff. While he platted the other points cf plaintiff’s described land, he did not know whether the southeast and the southwest corners of plaintiff’s said land were or were not out in the Missouri River.

A barn, house and other improvements were on defendant’s 41.56 acres. There also was testimony that defendant had a levee in 1942 or 1944 on that portion of the 41.56acres that extended over onto1 the Franklin County survey of that part of Sec. 30 sold to the Barrett brothers, and that later the Government took the levee over, rebuilding it in practically the same location after the flood of 1951. This levee is shown as “Centerline Levee” on Plaintiff’s Exhibit C, and extends some distance east of the 41.56 acres. Said exhibit also shows a slough on said land conveyed by Franklin County to the Barretts, which slough extends northeastwardly across the southeast corner of the 41.56 acres. Part of the south fractional half of the southeast quarter of Franklin County Sec. 30 lies south of said slough.

Defendant Brooks testified his father, who died in 1935, purchased the 41.56 acres in 1905 and moved onto it in 1912; that his father and he had crops, cattle and hogs on the land south of the levee clear to the water’s edge; had it fenced clear out to the river’s edge; that he had an orchard there for several years, and had posted signs around there. Only the west line of Warren County Sec. 31 was fenced from defendant’s barn south to a sycamore tree at or near the river bank. Plaintiff testified he had seen one “no trespassing” sign on the land involved; didn’t know, but had a good idea, who placed it there.

Theodore Meyer, Wilbert Hoeft and Frank Stuermann testified for defendant. Hoeft, between 1936 and 1943, and Stuer-mann, in 1939 and 1940, worked for defendant. Defendant stresses the testimony of Meyer, stating the other witnesses only testified to his use of the area in isolated years. Meyer testified that he had been well acquainted with Boueff and Goose Islands since 1920; that he remembered that Brooks cultivated the land between the levee and the Brooks barn and house, which were north of the levee; that defendant had a peach orchard and some fence for hogs and cattle south of the levee, and had used that land for threshing. He did not know “of anyone fencing or cultivating” the land south of the Brooks improvements and over to the Missouri River, other than defendant or defendant’s father. On cross-examination he stated the orchard was approximately on the levee, on either side of the levee; that the floods came and the fruit trees died, and after that Brooks cultivated only north of the levee, not south of the levee, and there was no cultivation or fences south of the levee after the 1951 flood.

Plaintiff, on cross-examination, admitted that since 1930 defendant or defendant’s father had cultivated the land north of the levee, practically the whole of which is shown by Plaintiff’s Exhibit C to be included within the boundaries of the 41.56 acres admittedly owned by defendant Brooks. Plaintiff testified, in effect, that, to his knowledge, no one had cultivated the land south of the levee in the last ten years. There was testimony that defendant tried to buy the Barrett land south of defendant’s 41.56 acres, defendant testifying he felt he did not then have title to it. The Barretts asked $500. Defendant offered $400, and did not purchase. The record establishes that defendant sued plaintiff to secure a private road across plaintiff’s land here involved between defendant’s 41.56 acres on Boueff Island and 26.81 acres on Goose Island. Called as a witness by plaintiff in this suit, defendant was asked if he did not testify in 1953 in the road suit as follows: “Mr. Brooks, do you claim any interest in land between your farm proper and the Goose Island slough land? Answer: No, I don’t." To which inquiry defendant answered: “I don’t remember.” Plaintiff thereafter testified that defendant in the road suit had answered: “No, I don’t.” And to the question: “Do you have possession of it?” answered: “Well, no, not exactly.” At the present trial defendant, on cross-examination, testified: “Q. And if you had an interest in that land [the land here involved], wouldn’t your land then leave [lead ?] from the county road clear to Goose Island in one continuous tract? A. Well, yes.”

Among the essential elements of adverse possession are the elements that the possession be hostile, continuous and notorious. Conran v. Girvin, Mo., 341 S.W.2d 75, 90 [14], The record clearly warranted a finding by the trial court that defendant’s possession of the land claimed in plaintiff’s petition was not hostile. Kelsey v. City of Shrewsbury, 335 Mo. 78, 71 S.W.2d 730 [3]; Bridal Trail Ass’n v. O’Shanick, Mo.App., 290 S.W.2d 401, 407 [10]. Defendant’s case of Peterson v. Harpst, Mo., 247 S.W.2d 663, 668, differs from the case at bar in that the court found the preponderance of the evidence established that defendant entered into adverse possession of the island land and thereafter continuously occupied it to the exclusion of any occupany by the plaintiffs; and there were no admissions against interest on the part of said defendant as in the case at bar.

Defendant’s witness Benjamin F. Frick, Warren County Surveyor, testified that at the time he surveyed Goose Island the Missouri River flowed on both sides of the island, but he did not remember the date of his survey. Theodore Meyer testified that in 1926 the river was flowing on both sides of said island and there was quite a bit of water between Goose Island and the location of the levee. Witness Hoeft testified there was no levee on the 41.56 acres in 1936. Defendant purchased his 26.81 acres (exceptions 1 and 2 described in plaintiff’s petition) at the west end of Goose Island about 1936 or 1937. He testified that the high water of 1915 “caved away” the land between his father’s house and where the levee now is; that the land formed back slowly; that when he purchased the 26.81 acres the Missouri River channel was south and sloughs or other water was north of Goose Island; that after 1936 or 1937 the area between the west end of Goose Island and the levee would fill in gradually from that slough towards the river, wash away, and then fill back again, and that there was quite a bit of water still in the slough.

Theodore Meyer testified that before the 1951 flood the Government put in a dike to shut the slough off, and ever since the land has been filling in; that it filled in from the Goose Island, the south, side and also from this, the other, side.

William T. Barrett, the survivor of the brothers receiving the Franklin County Accreted Land Patent, testified he had corn along the river in 1913 and 1914; that the river overflowed and most of the corn land caved in but about 25 to 30 acres, on which there was good sized timber, was not cut away and still remains. He was on his land frequently and had been along the Government levee in a rowboat and in a motorboat. He had cultivated to within 200 to 300 yards of the Brooks house and, as we read his testimony, the land never washed away closer than within 400 to 500 yards of the Brooks house. This would leave part of the Barrett land between the south line of the Brooks 41.56 acres shown on Plaintiff’s Exhibit C and north of the river at Goose Island. Giving consideration to the testimony of defendant’s witness Meyer that the land filled in from both sides, defendant’s attempt to purchase the Barrett land, and his testimony, under oath, in 1953 in the road case that he did not claim any interest in the Barrett land, a finding that the accretions attached to the Barrett land south of defendant’s 41.56 acres as well as to the north side and west end of Goose Island is sustained by the evidence.

In Missouri a riparian owner owns to the low water mark on navigable streams. Conran v. Girvin, Mo., 341 S.W.2d 75, 80 [5],

This court stated in Sweringen v. City of St. Louis, 151 Mo. 348, 52 S.W. 346, 349: “It is fundamental in the law of accretions that the lands to which they attach must be bounded by the river or stream to entitle its owner to such increase. * * * In the very nature of things, then, accretions depend upon actual contiguity, without any separation of the claimant’s land from the accumulated alluvion by the lands of another, however narrow the intervening strip may be, or whatever the size of the claimant’s tract behind it.” City of St. Louis v. Lemp, 93 Mo. 477, 479, 6 S.W. 344; St. Louis Pub. Schools v. Risley, 77 U.S. (10 Wall.) 91, 19 L.Ed. 850, 857, affirming 40 Mo. 356; 56 Am.Jur., Waters, § 485. Consult Peterson v. City of St. Joseph, 348 Mo. 954, 156 S.W.2d 691, 694 [7], From the result reached the trial court found a portion of plaintiff’s land intervenes between defendant’s 41.56 acres and the Missouri River north of Goose Island.

An annotation in 54 A.L.R.2d 650, § 5, states: “As a corollary of the general rule * * * that the owner of an island in a navigable stream the bed of which is owned by the state is entitled to additions thereto by accretion and reliction, it has been held or recognized that where the accretions to the island meet the mainland or its accretions, or another island or its accretions, the owner of the island is entitled to all the accretions forming on his shore to the point where they physically meet another shore or the accretions thereto.” Buse v. Russell, 86 Mo. 209, 214, states: “It must follow that if the shore lines of two bodies of land, divided by a water course, receive accretions until they come together, the line of contact will be the division line.” Cooley v. Golden, 117 Mo. 33, 48, 23 S.W. 100 [2], 105, 106, 21 L.R.A. 300; 56 Am.Jur., Waters, § 497, nn. 11, 12. Consult Curry v. Crull, 342 Mo. 553, 557(1), 116 S.W.2d 125 [2], 126.

There was testimony that the land filled in from the Boueff Island side and from the Goose Island side. Plaintiff’s title to any accretions would not extend beyond the point where the accretions to his land came in physical contact with the accretions to Goose Island. There is no sufficient evidence of record to determine where the accretions to plaintiff’s land terminate.

Defendant states that when the tracts constituting his 26.81 acres on Goose Island were surveyed they were the west end of Goose Island, but, as we read the record, it is doubtful if he established that his metes and bounds description extended to the water’s edge. He may be able to make such a showing upon a retrial. See Frank v. Goddin, 193 Mo. 390, 398, 91 S.W. 1057, 1059; Dumm v. Cole County, 315 Mo. 568, 577, 578, 287 S.W. 445, 449 [12].

Supreme Court Rule 83.13(c) provides: “Unless justice requires otherwise, the court shall dispose finally of the case on appeal and no new trial shall be ordered as to issues in which no error appears.” We conclude that the record sustains the finding of the trial court against defendant on the issue of his adverse possession.

The judgment is reversed and the cause remanded with directions to conduct such further proceedings as may be necessary to determine the extent of the accretions, if any, forming against plaintiff’s and defendant’s lands, and the boundary between any such accretions. Consult Hecker v. Bleish, 319 Mo. 149, 177, 178, 3 S.W.2d 1008, 1020, 1021; Tillman v. Hutcherson, 348 Mo. 473, 154 S.W.2d 104, 110 [16]; Mann v. Mann, Mo., 193 S.W.2d 492, 494 [2, 3].

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    The SCHOOL DISTRICT OF MEXICO, MISSOURI, NO. 59, a School District in Audrain County, Missouri, Respondent, v. MAPLE GROVE SCHOOL DISTRICT, NO. 56, OF AUDRAIN COUNTY, Missouri, Appellant.
    No. 49025.
    Supreme Court of Missouri, Division No. 1.
    Sept. 10, 1962.

      Don C. Carter, Sturgeon, for appellant;
    Jackson A. Wright and Edwards, Wright & Seigfreid, Mexico, for respondent.
   HOUSER, Commissioner.

Action by a school district against an adjoining school district to recover tuition for four pupils assigned to the suing district by the county superintendent of schools under § 165.253. Tried to the court without the aid of a jury, judgment was rendered for the suing district for $3,150 and costs. Following an unsuccessful effort to obtain a new trial the losing district appealed. We have jurisdiction because this appeal involves the construction of Article III, Sec. 23 of the Constitution of Missouri, 1945, V.A.M.S.

Briefly stated, the facts are that prior to October, 1954 the Dr. Kallenbach family lived in the Mexico school district, and the two school age children of the Kallenbachs attended school in that district. Interested in purchasing the Winn farm, which was located in adjoining Maple Grove school district, Dr. Kallenbach consulted Mr. Maxwell, the county superintendent of schools, and Mr. Davenport, president of the Maple Grove school board, as to whether his children could be assigned to the Mexico district if he moved onto the Winn farm in the Maple Grove district. Dr. Kallenbach wanted to be sure where his children would go to school before buying the farm. It is five miles from the Winn farm to the school in Maple Grove district; a little less than three miles from the Winn farm to the school in Mexico district. Assured that an assignment would be made, Dr. Kallenbach bought the Winn farm on July 7, 1954. On August 17, 1954 the county superintendent executed the assignment, as follows :

“Assignments of Pupils

“In compliance with Section 165.253, Missouri School Laws, 1952, the grade school children of Dr. Glen P. Kallenbach are assigned for school purposes to the Mexico School District No. 59 from the Maple Grove School District No. 56, Audrain County, Missouri.

“The Assignment shall become effective when the above family establishes residence in school district No. 56 (Winn Farm) and shall continue so long as the provisions of Section 165.253, Missouri School Laws, 1952 apply to this individual case. It applies to the Kallenbach children who are now of elementary age and to those children of the same family who later shall be of elementary school age.

7*/

“Howard Maxwell, Superintendent

“Audrain County Public Schools”

That assignment has never been revoked or changed and is still in effect as far as Mr. Maxwell (still the county superintendent) is concerned. The Kallenbach family moved to the Winn farm in October, 1954. Two of the Kallenbach children continued to attend school in Mexico district during the period 1954-1956. Maple Grove refused to pay their tuition to Mexico district. Litigation followed, resulting in a judgment in favor of Mexico district, affirmed by the St. Louis Court of Appeals. School Dist. of Mexico, Mo., No. 59 v. Maple Grove School Dist. No. 56, Mo.App., 324 S.W.2d 369. Four Kallenbach children attended school in Mexico district 1956-1960, Nancy and James in the meantime having attained school age. Maple Grove refused to pay tuition to Mexico district on the four Kal-lenbach children for the period 1956-1960 and this action followed.

Maple Grove’s first point is that the superintendent had no power or authority under § 165.253 to assign the Kallenbach children from Maple Grove to Mexico because they were not residing in Maple Grove at time of assignment but were residents of Mexico, attending school in Mexico. The question is whether the superintendent can make such an order, to become effective when the pupil shall establish residence in Maple Grove. The argument is that § 165.253 refers to present and not future conditions; that an officer may exercise a given power only when the conditions which authorize him to act are present and existing; that § 165.253 mandatorily requires residence in the district out of which the assignment is made before the superintendent can act; that in order to be assigned from X district to Y district a pupil must be “located” in (resident of) X district, so the Kallenbach children could not be assigned to Mexico at a time when they were already living in Mexico and attending school in Mexico.

In determining whether the provision of § 165.253 as to the location of a pupil at the time the assignment is made is mandatory or directory we seek to ascertain “ ‘the legislative intention as disclosed by all the terms and provisions of the act in relation to the subject of legislation and the general object intended to be accomplished.’ ” State ex rel. Ellis v. Brown, 326 Mo. 627, 33 S.W.2d 104, 107. Generally, a statute regulating the manner in which public officials shall exercise their powers will be construed as directory rather than mandatory, “especially where such regulation pertains to uniformity, order and convenience, and neither public nor private rights will be injured or impaired thereby.” Crawford’s Statutory Construction, 1st Ed., 1940, § 266, pp. 529, 530, quoted with approval in State ex rel. Reorganized School Dist. No. 5, of Washington County v. Holmes, 363 Mo. 760, 253 S.W.2d 402, 404. And generally a statute regulating the duties of public officers and specifying the time for their performance will be construed directory “unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the officer.” 3 Sutherland Statutory Construction, 3rd Ed., (1943), p. 102; 67 C.J.S. Officers § 114, p. 404; State ex rel. Reorganized School Dist. No. 5, of Washington County v. Holmes, supra; Schlafly v. Baumann, 341 Mo. 755, 108 S.W.2d 363, 366.

The purpose of § 165.253 is to relieve against the hardship of boundaries and make school attendance convenient by enabling a pupil to attend the most accessible school regardless of district lines. It should be liberally construed in order to effectuate its beneficent purpose, State ex rel. Reorganized School Dist. No. 5, of Washington County v. Holmes, supra, and this is particularly true in view of the fact that the assignment of pupils is not in derogation of private rights of property; no vested rights are disturbed, and no deprivation of property ownership is involved. (The funds of school districts are the property of the state, and not the private property of the school districts. School Dist. of Oakland v. School Dist. of Joplin, 340 Mo. 779, 102 S.W.2d 909.)

Under the foregoing tests we construe the provision of § 165.253 with respect to the location of the pupil at the time the assignment is made as directory and not mandatory, and rule that the county superintendent had the permissive power to assign the Kallenbach children to Mexico, effective when they should establish their residence in Maple Grove, notwithstanding the children at the time of the making of the order were residents of and attending school in Mexico. It is important that the assignment order imposed no obligation upon Maple Grove unless and until the Kallenbach children were “located” in Maple Grove and did not purport to actually assign these children to Mexico while or at a time when they were still residents of Mexico. The order was anticipatory and contingent upon the central requirement of the establishment of family residence in Maple Grove. We see in it the orderly and convenient administration of the assignment of pupils from one school district to another, without any injury to or impairment of public or private rights. In so ruling we confirm and uphold the opinion of the St. Louis Court of Appeals in School District of Mexico, Mo. v. Maple Grove School District No. 56, supra.

Maple Grove’s second point (that the court erred in rendering judgment for the tuition of Nancy and James Kallenbach, because they were not of school age when the assignment was made) is based on the same contention, namely, that the county superintendent had no authority to make an assignment of pupils to take effect in the future, and is governed by the same considerations. The children assigned were “the grade school children of Dr. Glen P. Kallenbach.” The assignment specifically applied not only to the Kallenbach children then of elementary grade school age but also “to those children of the same family who later shall be of elementary school age.” The assignment was never revoked and is still in effect. The court did not err in this respect.

Maple Grove’s third point is that § 165.253 violates Article III, Sec. 23 of the Constitution of 1945, which provides that “No bill shall contain more than one subject which shall be clearly expressed in its title, * * *.” Appellant complains that the title to the bill (Laws of Missouri 1931, p. 334) contains 30 or more clauses, and descends into particulars, but that “[t]he only clause of this title which could in any way indicate that the act itself was an act to obligate one common school district to pay to another common school district tuition of children residing in the debtor district is the following: ‘providing for the assignment of pupils from one [school] district to another [school] district.’ ” Appellant’s argument is that “there is nothing in the language of the title to this enactment that clearly expresses the idea that under a proviso to the enactment there would be added or engrafted legislation creating a moneyed liability by one school district to another.”

We are of the opinion that the title is sufficient and that the constitution has not been violated in this respect. In addition to the clause quoted by appellant the title contains these additional clauses all of which, taken together, sufficiently express the purpose of the act to provide for the payment of tuition on assigned pupils by one school district to another:

“defining certain terms, prescribing certain duties to be performed by the state and county superintendents of schools; providing for state support and defining conditions under which such support may be obtained; * * * providing for the apportionment of the public school funds of the state; * * providing for the assignment of pupils from one school district to another school district; providing for free tuition in certain instances; * *

The payment of tuition of assigned pupils is fairly related to the subject of “apportionment of the public school funds of the state” between school districts within the compass of the quoted clauses in the title. Such payment is simply a method of apportioning the tax money between school districts. The public funds acquired by school districts are not the private property of the school districts but belong to the state, which may apportion such funds in the best interests of education. The school district is a statutory trustee for the discharge of this function of government, which by the constitution is entrusted to the state. School Dist. of Oakland v. School Dist. of Joplin, supra, 102 S.W.2d, l. c. 915.

The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . All section references are to RSMo 1949, V.A.M.S. The pertinent portion of § 105.233 folllows: “Whenever any pupil is so located that an adjoining school is more accessible, the county superintendent shall have the power and it shall be his duty to assign such pupil to such adjoining district; * * ⅜ provided, the attendance of such assigned pupil shall be credited for the purpose of apportionment of state funds to the district in which the student lives, and the board of directors of the district in which said student lives shall pay the tuition of such pupil or pupils so assigned; * * ⅜.”


author: HOLMAN, Commissioner.

text:
    George E. BAYER et al., d/b/a Markle & Bayer Agency, and General Service Agency, Appellants, v. AMERICAN MUTUAL CASUALTY COMPANY, a Corporation, et al., Respondents.
    No. 48808.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 10, 1962.

      Moss H. Silverforb, Marion Miller and Maurice E. Bensen, Kansas City, for appellants.
    Frank C. Rayburn and Winger, Nugent ■& Rayburn, Kansas City, for respondent, Bill M. Skillman.
    Charles H. Howard, Jefferson City, for respondent, Jack L. Clay.
    Lewis A. Dysart and George V. Ayl-ward, Jr., Kansas City, for respondent, International Underwriters, Inc.
   HOLMAN, Commissioner.

During the year 1950 and for a period of time thereafter George E. Bayer and John Markle were partners in conducting a mutual insurance agency in Philadelphia, Pennsylvania. In 1950 they invested certain funds in the Merchants Mutual Casualty Company of Kansas City, Missouri. (The name of this company was later changed to American Mutual Casualty Company.) The transactions of plaintiffs with Merchants and the other defendants will be hereinafter more fully described.

In 1955 Bayer and Markle filed this suit in which they alleged that their investment in Merchants was made as the result of certain false and fraudulent representations on the part of a number of the defendants. In the first count of their petition they sought to recover $22,150 actual and $150,-000 punitive damages and in the second count they prayed for actual damages in the sum of $300,000. George Bayer died in January 1957, but prior thereto, on December 1, 1956, he assigned all of his interest in the claims alleged in the petition herein to John Markle. (We will, however, continue to refer to Bayer and Markle as plaintiffs in referring to events occurring prior to the trial of this case.) At the close of plaintiff’s evidence the motions of all defendants for directed verdicts were sustained and, in response to the direction of the court, the jury returned a verdict in favor of all the defendants. Plaintiff has duly appealed from the ensuing judgment.

Plaintiff John Markle testified that he resided in Palmyra, New Jersey; that he and George Bayer had become partners in the operation of a general insurance agency in 1948 with offices in Philadelphia and Newton, Pennsylvania; that in the spring of 1950 he read an advertisement in the New Jersey Times wherein Edwin F. Ragland of Kansas City had advertised local mutual insurance companies for sale; that after certain telephone conversations with Rag-land he and Bayer went to Kansas City and conferred with Ragland; that they told Ragland they needed a mutual casualty insurance company to go along with their fire companies writing general coverage; that Ragland told them he was a director and attorney for Merchants Mutual Casualty Company and took them to the office of that company where they met Nile Adams, its president; that he asked Nile Adams if the company was in good financial state and he said “ ‘Yes,’ it was an operating company at that time”; that he had a talk concerning the company with a representative of the Missouri Insurance Department who was in the office making an examination, and also talked with an officer of the Union National Bank concerning the solvency of Merchants; that his partner made a trip to Jefferson City and visited the State Insurance Department where he made an investigation concerning Merchants; that he made a number of trips to Kansas City in connection with his transactions relating to Merchants; that a contract was prepared but never signed and was not offered in evidence because he did not at that time have a copy of it.

The testimony indicated that under the law of Missouri a company such as Merchants could accept deposits of money or other assets from investors and that the company was authorized to issue certificates of deposit which would bear interest at a rate designated therein; that the money so deposited could be later withdrawn by the depositor if the surplus of the company was above a designated amount. It appears from the testimony of Mr. Markle and from other evidence that the general plan or agreement between plaintiffs and Merchants was that plaintiffs would deposit with Merchants the sum of $10,000 in cash, $20,000 in mortgage bonds, and a $50,000 real estate mortgage, and that the addition of said $80,000 to the assets of Merchants would qualify it to be licensed to issue policies other than in the State of Missouri, and that plaintiffs would become agents for Merchants in the issuance of policies in certain eastern states. As a result of these arrangements Bayer and Markle were elected to the board of directors of Merchants. Bayer was elected executive vice president and Markle was elected secretary. The $50,000 mortgage was deposited with the company, as well as certain bonds, but the insurance department refused to approve the mortgage or the bonds so that they could be carried as assets of said company. Plaintiffs did deposit with Merchants the following sums of money on the dates indicated: April 21, 1950, $5,000; June 5, 1950, $5,000; and September 7, 1950, $7,500. Plaintiffs also paid out $2,500 in order to obtain a reinsurance treaty for Merchants with Peerless Casualty Company of Keene, New Hampshire. They also spent $300 in securing a title policy on the mortgage.

Because of these expenditures Merchants, on November 4, 1950, issued a certificate of indebtedness for $20,300 to plaintiffs. The bonds were returned to plaintiffs but the officers of Merchants apparently had some doubt as to their right to surrender the $50,000 mortgage to plaintiffs, and therefore an apparently friendly suit was filed in New Jersey which resulted in a judgment which either canceled said mortgage or caused its return to plaintiffs.

As appears from the foregoing, plaintiffs did not deposit $80,000 in acceptable assets with Merchants and Merchants was never licensed to do business in any state other than Missouri. However, Mr. Markle testified that plaintiffs were given a large number of policy forms and binders and it was verbally agreed that plaintiffs could write excess line insurance in the east, primarily in New York; that excess line risks are risks that have been refused by three licensed companies and, in that event, according to Mr. Markle, the risks may be written by a company not licensed in New York; that when the policy forms had all been used plaintiffs, upon telephone authorization of Nile Adams, had other forms printed in the east; that they wrote policies for a period of about five months in 1950 and collected premiums totaling about $65,-000; that they did not remit any premiums to the Kansas City office nor send any “dailies” or other record of the policies they had issued to the Kansas City office; that in August 1950, Nile Adams called him and asked what he should do with two claims that had been filed with the Kansas City office on policies written by plaintiffs and was told to send them to Philadelphia where they would be processed. Mr. Mar-kle testified further that in the fall of 1950 Merchants refused to pay any claims on policies they had written, and, its officials in Kansas City denied that plaintiffs had been in any way authorized to issues policies for that company; that as a result of that development plaintiffs were compelled by the insurance department of Pennsylvania to go out of business and they lost profits thereby of $25,000 a year; that plaintiffs were prosecuted in New Jersey for writing insurance without a license and entered a plea of nolo contendere and were each fined one dollar; that there was also a federal prosecution for using the mails to defraud in connection with the issuance of these policies which resulted in a conviction of both plaintiffs and each was sentenced to imprisonment in the federal penitentiary for a term of one year; that the $65,000 collected in premiums was used to pay claims resulting from the policies issued in the east

Plaintiffs also presented as witnesses Robert Hruska, president of International Underwriters, Bernard Cohen, former counsel for the State Insurance Department, Bill Skillman who became a director of Merchants on December 10, 1952, Charles H. Howard, attorney for the receiver of American Mutual Casualty Company, and M. H. Silverforb, an attorney for plaintiff, but there was no testimony admitted from any of these witnesses which would in any manner aid plaintiff in his effort to make a submissible case and therefore their testimony will not be detailed herein.

Defendants in this case are American Mutual Casualty Company, Nile Adams, his wife Mary H. Adams who was a director of Merchants, Lawrence Leggett, Bill M. Skill-man, Edwin F. Ragland, International Underwriters, Inc., International Indemnity Exchange, and American Service Life Insurance Company.

At the time this suit was filed Lawrence Leggett was made a party defendant as Superintendent of Insurance of the State of Missouri “in behalf of the policyholders of the American Mutual Casualty Company for their protection of the assets of said company.” Thereafter, on January 18, 1957, American Mutual Casualty was permanently dissolved by a decree of the Circuit Court of Cole County, Missouri, and its assets were vested in the Superintendent of Insurance as receiver for the purpose of liquidation. On February 8, 1957, the same type of order was made in the same court in regard to International Indemnity Exchange. On March 15, 1959, International Underwriters, Inc. was adjudged a bankrupt and John H. Denman was thereafter appointed trustee of the bankrupt estate and entered his appearance in this case in its behalf. The Superintendent of Insurance, Lawrence Leggett, by his attorneys, appeared in the trial of the case but he was not made a party as receiver for American until the end of plaintiff's presentation of evidence, at which time, upon motion, he was so made a party and the plaintiffs then dismissed as to defendant Lawrence Leggett in his capacity as superintendent of insurance.

The corporations, other than American, named as defendants were alleged to be “subsidiary” corporations of Merchants (later American) and an effort was made by plaintiff to trace funds from Merchants into said alleged subsidiary corporations, but no substantial evidence was adduced tending to support that contention.

The petition alleged that defendants Nile Adams and Edwin F. Ragland, as officers and directors of Merchants, and with the consent of the other officers and directors of said company during the period extending from March 1950 to February 1951, made false, fraudulent, and misleading statements and representations, with intent to cheat and defraud plaintiffs. The specific fraudulent representations alleged to have been made to plaintiffs will be hereinafter quoted in connection with our rulings on the questions concerning submissibility.

In the first count of their petition plaintiffs sought to recover as actual damages the amount they had invested in Merchants ($20,300), plus $1,850 legal expenses required in obtaining the return of the mortgage, as well as $150,000 punitive damages. All of the allegations in the first count are incorporated by reference in the second count of the petition, and it is further alleged that the defendants, in violation of their agreement, denied that plaintiffs had been authorized to issue policies for Merchants and as a result thereof plaintiffs lost their business and their “good names, reputations and associations in business” and their “social relations” to their damage in the sum of $300,000.

In ruling the question of whether the evidence was sufficient to make a sub-missible case we must consider as true every fact and circumstance which plaintiff’s evidence tends to prove, give him the benefit of every reasonable inference that may fairly be drawn therefrom, and consider all the evidence in the light most favorable to him. Giambelluca v. Missouri Pacific R. Co., Mo.Sup., 320 S.W.2d 457. Since plaintiff bases his case on fraudulent representations it would perhaps be helpful at the outset to state the general rules Applicable in this type of action. “The elements and essentials of an action for fraud are not in dispute. The rule is stated in 37 C.J.S., Fraud, § 3, p. 215 as follows : ‘Comprehensively stated, the elements of actionable fraud consist of: (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker’s knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer’s ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon.’' * * * The establishment of each of these essential elements is necessary to a recovery. * * * ‘Fraud is never presumed,, but must be proven. Yet it is not necessary that it be shown by direct evidence. It may be established by facts and circumstances, and the burden of proof rests upon him who asserts it to make it manifest.’ Hardwicke v. Hamilton, 121 Mo. 465, 473, 26 S.W. 342, 344; Orlann v. Laederich, supra [338 Mo. 783, 92 S.W.2d 190], The difficulty of proving fraud, does not dispense with the necessity of making the proof.” Lowther v. Hays, Mo.Sup., 225 S.W.2d 708, 713.

In determining the question of sub-missibility we will limit our consideration to the allegations and evidence relating to the first count as there is no contention that a submissible case was made as to-the second count unless the first count is held to be submissible.

One of the false representations alleged was that Merchants was “in good financial standing, writing insurance business in the State of Missouri by authority of the Insurance Department of the State of Missouri” when “in truth and fact said Merchants Mutual Casualty Company was in financial difficulties and under a direct ‘cease and desist’ order from the Insurance Department to stop and cease from further writing any insurance business in. the State of Missouri or elsewhere until further order of said Insurance Department.” In support of this allegation plains tiff testified as follows: “So I asked Mr. Adams if the company was in good financial state, and he said yes, it was an operating company at that time.” However, there is no proof that said statement was false. Plaintiff completely failed to prove that the company was in financial difficulties or that the insurance department had ordered it to stop writing business at that time. Bill Skillman testified that the company continued to write business until some time in the year 1954.

Plaintiff, however, says that the case was submissible as against the receiver of American because Mr. Howard, one of the attorneys for the receiver, admitted in his opening statement that Merchants was insolvent at the time in question. We quote the following from his opening statement: “Now, we are dealing with a transaction that happened ten years ago, in 1950. I wasn’t there, and I can’t tell you firsthand what took place. The only thing I can tell you is what I think the evidence in this cause will disclose. I think the evidence in this cause will disclose that * * * two gentlemen well versed in the insurance business, Mr. Markle and Mr. Bayer, were interested in acquiring charters of insurance companies. * * * They began negotiations with Mr. Adams to either buy the Merchants Mutual Casualty Company or to acquire an interest in the company. * * * They were negotiating with the Merchants Mutual Casualty Company, they agreed to put money into the company to build up its assets so to say, to make the company solvent, to give it operating capital, and this was all done in April, June and September, and they did put some $17,500 into the companies.”

If an attorney in his opening statement makes a clear, unequivocal admission as to a fact, such admission is binding upon his client, but “a mere statement or outline of anticipated proof upon any one or more of the issues in the case is not to be regarded as a binding admission so as either to conclude the party whose counsel made the statement or to dispense with the necessity of proof upon the issue on the part of his adversary.” Evans v. Sears, Roebuck & Co., Mo.App., 129 S.W.2d 53, 57. See also Wasmer v. Missouri Pac. R. Co., 166 Mo.App. 215, 148 S.W. 155, and Cheatham v. Kansas City Life Ins. Co., Mo.App., 241 S.W.2d 47.

We are convinced that the statement in question may not be regarded as a binding admission that the company was insolvent at the time plaintiffs made the investment. In his preliminary remarks Mr. Howard stated that he was just telling the jury what he thought the evidence would disclose. He then outlined what he thought the evidence would show as to the reason plaintiffs invested money in the company. He was undoubtedly correct in stating that it was to “build up its assets.” Under the circumstances, the fact that he added the phrase, “to make the company solvent,” will not be construed as an admission that it was insolvent. Moreover, if, as he said, plaintiffs agreed to advance the money to make the company solvent, such would not make a submis-sible case, as it indicates that plaintiffs had knowledge of the financial condition of the company and invested the money in order to remedy the situation.

There is no merit in plaintiff’s further contention that a submissible case was made because of the fact that Nile Adams admitted in an affidavit filed in the New Jersey case that the company was willing to return the $50,000 mortgage to plaintiffs, and because counsel admitted that it had been returned. Plaintiff states in his brief that “if they admit that they surrendered the mortgage assigned by reason of suit to recover it and they took back their certificate of indebtedness, then why would plaintiffs not be entitled to receive back the funds that were received from plaintiff and spent for the Mutual Casualty by them.” The mortgage was apparently returned as the result of a court action. The company was willing for it to he returned because the Insurance Department had failed to approve it as an asset. Furthermore, plaintiffs would not have been entitled to a return of the $20,300 unless the surplus of Merchants had been at least $75,000 after the money had been paid out. There is no evidence that there was a sufficient surplus to warrant payment at the time plaintiffs made demand for repayment of the money. Moreover, this action was not brought on that theory and, under the circumstances, the return of the mortgage would not be an admission that the assets had been obtained from plaintiffs as a result of false pretenses.

There is another reason why plaintiff cannot recover on the representation in question. His evidence affirmatively shows that he and Bayer did not rely thereon but made their own investigation of the company. Mr. Markle testified that he talked with an officer of the Union National Bank (one of the company’s depositories) concerning Merchants’ financial condition, and also talked with a representative of the Insurance Department who was then making an examination of the company. He further testified that Mr. Bayer had gone to Jefferson City and made an investigation of the company in the State Insurance Department. As stated, this evidence clearly shows that plaintiffs did not rely upon the representation of Mr. Adams.

Another alleged false pretense relied on by plaintiff as a basis for recovery is that “if plaintiffs made an investment to surplus in the said company of $80,000 that said Merchants Mutual Casualty Company would be licensed in other states, and they could and would be capable and allowed to write automobile liability insurance in the State of New York and other states, and that the approval to do so would be secured by the defendants and each of them from the Insurance Department of the State of Missouri, by the consent of the Superintendent of Insurance, which statements defendants and each of them knew at the time they were so made, were false, misleading, deceptive representations.” No submissible case was made as to that alleged false pretense for two reasons. First, the representation is not related to a present or pre-existing fact and an action for fraud cannot ordinarily be predicated upon unfulfilled promises or statements as to future events. Reed v. Cooke, 331 Mo. 507, 55 S.W.2d 275. Secondly, it appears that at least one reason why Merchants was not licensed to do business in other states was the failure of plaintiffs to furnish assets of the value of $80,-000 which were acceptable to the Insurance Department. It is elementary that plaintiff should not be permitted to recover damages resulting from deficiencies for which he and his assignor were responsible.

What we have heretofore said will indicate our view that plaintiff did not make a submissible case as to any of the false pretenses herein alleged and we accordingly rule that the trial court did not err in directing a verdict for defendants.

Appellant has made two points in his brief relating to the admission and exclusion of evidence, but they violate Civil Rule 83.05(e), V.A.M.R., and are entirely too general to present anything for our review. Point IV is as follows: “The court erred in refusing to admit competent, relevant and material evidence offered by appellants. Tr. 57, 61, 88-93, 94, 95, 96, 97, 101, 102, 103, 111, 130, 134, 136, 138, 141, 145, 151, 159, 161, 162, 163, 166, 168, 169, 171, 172, 201, 203, 205, 206, 207, 210, 212, 213, 214, 215, 217, 218, 219, 220, 222, 224, 229, 233, 235, 243, 248, 256, 257, 258, 259, 260. Hussey v. Robison, [Mo.] 285 S.W.2d 603.” The entire argument under that point is as follows: “Witness John Markle’s testimony was proper and competent, but the trial judge misconceived the issues, admissibility, and proof under the pleadings, and therefore precluded the admission of pertinent testimony. In this we are sure that this court, as it has held and stated in Hussey v. Robison, 285 S.W. 2d 603, l. c. 605, will completely examine the questions of error of the trial court in ruling upon the admissibility of evidence (Tr. 57 to 260, incl.).”

Apparently appellant’s attorneys have completely misconceived the requirements for presenting a point relating to the exclusion of evidence. They have apparently cited every page of the transcript upon which there appears one or more rulings wherein the court sustained an objection to testimony offered by plaintiff. No such testimony is set out in the brief, no reason is stated as to why the ruling was erroneous or prejudicial to plaintiff, and no authorities are cited relating to the admissibility of such evidence. The Hussey case cited by appellant is an equity case in which the court states the well-settled rule that in reviewing an equity case the appellate court will consider only admissible evidence and will exclude from consideration evidence improperly admitted. That rule has no application in the appeal of a case at law in which the appellant desires a ruling upon the admission or exclusion of evidence. We have heretofore said that it is “the duty of an appellant to distinctly point out the alleged errors of a trial court and to show that he was prejudiced by the rulings alleged to be erroneous, and to make specific reference to pages in the transcript on appeal which disclose the bases for the contentions of error in a trial court’s rulings. Justice demands that cases be correctly and speedily determined. This cannot be completely and surely done unless the causes appealed and submitted to the appellate court are properly briefed.” Jacobs v. Stone, Mo.Sup., 299 S.W.2d 438, 440. As stated, this point presents nothing for our review.

What we have said in ruling Point IV will also dispose of Point V which reads as follows: “The trial court erred in admitting on behalf of the respondents incompetent, irrelevant and immaterial testimony over the objections of the appellants. Tr. 68, 69, 70, 72, 73, 74, 79, 82, 83, 84, 117, 130, 137, 138, 162, 165, 167, 168, 172, 176, 178, 182, 187, 188, 213, 221, 222, 244. Hussey v. Robison, 285 S.W.2d 603.” (This point is not developed at all in the argument.) For reasons heretofore stated, Point V presents nothing for our review.

Defendant Receiver has moved that plaintiff’s appeal be dismissed because of the failure of his brief to comply with Civil Rule 83.05, and for other reasons. While the motion has some merit, we have decided that the appeal should not be dismissed and the motion is accordingly overruled.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


text:
    Boyd SMITH, Plaintiff-Appellant, v. Charles MIDDLEKAUFF and S. Riekes & Sons, Inc., a Corporation, Defendants-Respondents.
    No. 48963.
    Supreme Court of Missouri, Division No. 1.
    July 16, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied Sept. 10, 1962.

      ■ N. Murry Edwards, St. Louis, and Ninian M. Edwards, Clayton, for appellant.
    Evans & Dixon and Ralph C. Klein-schmidt, St. Louis, for respondent, Charles Middlekauff.
    Goldenhersh, Goldenhersh, Fredericks, Newman & Lane and Frank J. Lane, Jr., St. Louis, for respondent, S. Riekes & Sons, Inc.
   HOLMAN, Commissioner.

In this personal injury damage action plaintiff, a pedestrian, sought to recover the sum of $85,000 for injuries sustained when he was struck by an automobile driven by defendant Charles Middlekauff. He also joined as a defendant Middlekauff’s employer, S. Riekes & Sons, Inc., and sought judgment against it under the doctrine of respondeat superior. The trial resulted in a directed verdict for Riekes and a jury verdict in favor of the other defendant. Plaintiff has appealed and here contends that the court erred (1) in giving Instruction No. 8 at the request of Middlekauff (hereinafter referred to as defendant), and (2) in directing a verdict for Riekes. Since we have concluded that the giving of Instruction No. 8 was not prejudicial error and hence that the judgment in favor of Middlekauff should be affirmed, we need not consider the second point as the employer could not be held liable where, as here, the verdict exonerated the employee-driver.

The casualty in question occurred about 10 p. m. on Goodfellow Boulevard near its intersection with Etzel in St. Louis, Missouri. Goodfellow runs north and south and Etzel east and west. On the day in question, March 29, 1960, plaintiff had been working for Louis Towns, a rubbish hauler. Towns testified that he was taking plaintiff home; that he was driving west on Etzel and made a left turn onto Goodfellow stopping in the bus stop zone on the southwest corner of the intersection; that plaintiff got out of the truck and started across Goodfellow in order to get some cigarettes at a confectionery on the east side of the street; that he, Towns, started to pull his truck out of the bus zone and heard a noise from the direction plaintiff had started; that he left the truck to investigate and found plaintiff lying face down on the middle line of Goodfellow; that he saw a side rear-view mirror in the street which he laid in defendant’s car; that plaintiff was unconscious and “I thought he was dead”; that a nurse came by and put her sweater under his head and in a short time the police ambulance came and took plaintiff to the hospital. On cross-examination this witness denied that plaintiff had drunk anything of an alcoholic nature that day.

Plaintiff testified that when he got out of the truck he walked behind it and started across the street; that when he was halfway across he saw defendant’s car coming north and he stood on the white line “froze,” and the car hit him; that the next thing he remembered was when he awoke in the hospital.

Defendant was called as a witness by plaintiff. He testified that he was employed by S. Riekes & Sons as a saleman; that he used his own automobile, although his employer paid for the oil and gas he used; that on the evening in question he had dinner with Mr. Finsch of Kansas City, a regional salesman for the company; that after dinner he drove Mr. Finsch to the Gatesworth Hotel and was proceeding to his apartment at the time plaintiff was injured; that he was driving north on Goodfellow and at a point approximately 125 feet from Etzel he felt an impact on the left side of his car; that he immediately applied the brakes and stopped his car in about 25 feet; that his headlights were on the low beam and he had been looking ahead, but he never saw plaintiff prior to the impact; that it was drizzling rain at the time but he could see ahead about 130 feet; that the street was about 35 feet wide and the left side of his car was two or three feet to the right of the center line; that as a result of the impact the left portion of his windshield was broken and the rear-vision mirror was torn off the left front door; that his windshield wiper was operating and his brakes and steering mechanism were in good condition; that he did not swerve his car or blow the horn. This witness was later recalled during the presentation of his evidence and stated that his car at the time was being operated at about 15 m. p. h. and was following about 25 feet behind another northbound car; that he had no notice of plaintiff’s presence on the street until he heard the “thump” of the impact.

The police officer investigating the accident testified that he examined defendant’s car and did not find any damage to the front of the car; that in his examination from front to rear the first damage he found was the broken windshield.

Defendant called Dr. Robert J. McCracken, an osteopath, who testified that he came upon the scene of this casualty and tried to administer to plaintiff until the ambulance arrived; that in examining him he noted that plaintiff “literally reeked of alcohol,” and in his opinion was intoxicated; that plaintiff was lying about 120 feet south of the south line of Etzel. In rebuttal plaintiff denied having drunk any alcoholic liquor on the day in question.

The evidence indicated that plaintiff was severely injured. His left leg was fractured in three places. His jaw was fractured and he sustained multiple lacerations on the left side of his face, as well as numerous other injuries which need not be detailed.

As stated, plaintiff contends that the court erred in giving Instruction No. 8 at the request of defendant Middlekauff. It reads as follows: “The court instructs the jury that the mere fact of itself that plaintiff was injured and has brought suit claiming that defendant, Charles Middle-kauff, was negligent is no evidence whatever that defendant Middlekauff was in fact negligent. Negligence is not in law presumed, but must be established by proof as explained in other instructions.” As w<s have heretofore indicated, we are of the opinion that the giving of said instruction did not constitute prejudicial error. Instructions which contained substantially the same subject matter as the one under consideration have been held by this court not to be reversibly erroneous in Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158; Le Grand v. U-Drive-It Co., Mo.Sup., 247 S.W.2d 706; Paige v. Missouri Pac. R. Co., Mo.Sup., 323 S.W.2d 753, and Grote v. Reed, Mo.Sup., 345 S.W.2d 96.

In the Le Grand case the facts were the same as in the case at bar (plaintiff, a pedestrian, was struck by defendant’s car while crossing a street) and the instruction was exactly the same as the one we are here considering. In that case we pointed out that “nothing is said in instruction 10 as to the character of plaintiff’s injuries and there is nothing in the instruction from which the jury could conclude that the character or nature of plaintiff’s injuries could not be considered.” 247 S.W.2d l.c. 712.

Plaintiff has cited cases in which instructions containing language somewhat similar to that contained in the instruction under review have been held to be prejudicially erroneous. Those include Orris v. Chicago, R. I. & P. Ry. Co., 279 Mo. 1, 214 S.W. 124; Citizens Bank of Festus v. Missouri Natural Gas Co., Mo.Sup., 314 S.W.2d 709, 72 A.L.R.2d 855, and Rittershouse v. City of Springfield, Mo.Sup., 319 S.W.2d 518. In the Grote case, supra, we discussed the holdings in the two groups of cases heretofore cited and concluded that they were not inconsistent. Therein we said: “Whether the giving of that type of ‘mere fact’ instruction constitutes reversible error depends upon the nature of the submission and the facts of the particular case. We have heretofore said that ‘The rulings in the Orris case and the cases following it are based upon a distinction between cases wherein the character of the injury is of itself a material link in the chain of circumstances tending to show negligence, and cases where the injury is not of such a character. * * * The rule laid down in the Orris case is followed and applied by the courts only in that class of cases wherein the peculiar characteristics of the injury itself may be a link in the chain of circumstances tending to prove the negligence alleged in the petition.’ Nicholson v. Franciscus, 328 Mo. 96, 40 S.W.2d 623, 625. The distinction between the two classes of cases is more specifically demonstrated in the Citizens Bank case, supra, as follows: ‘The “no evidence whatever” submission was held not erroneous in Gardner v. Turk, 343 Mo. 899, 123 S.W.2d 158, 161, in which the submission was “that the mere fact of itself that decedent lost his life * * * is no evidence whatever that defendant was in fact negligent.” As to this, we said “the fact of itself that decedent lost his life could not have thrown any light on the question of defendant’s alleged negligence.” A similar instruction was held not reversibly erroneous in LeGrand v. U-Drive-It Co., Mo., 247 S.W.2d 706, 711, in which the words “plaintiff was injured” were substituted for the words “decedent lost his life.” Both were cases of a pedestrian struck by an automobile and nothing was withdrawn by the instructions in either which tended to make a circumstantial evidence case. There would usually be a difference in making such a statement about “injury” or “death,” the ultimate result, and a fact in the chain of circumstances, like “slipping” or “fire”, which is part of the causation bringing about the ultimate result of injury or damage, * * *. The “no evidence whatever” submission would certainly be wrong in withdrawning from the jury any fact that could properly be considered in a circumstantial evidence case * * *.’ 314 S.W.2d l.c. 715.” 345 S.W. 2d l.c. 99, 100.

Plaintiff’s main instruction in this case submitted the liability of defendant Middle-kauff upon humanitarian negligence in failing to turn or swerve his automobile and thus have avoided striking plaintiff. It is said by plaintiff that Instruction No. 8 withdrew from the jury consideration of his injuries, which evidence would have cast light upon the issue of defendant’s alleged negligence in failing to turn or swerve. He states in his brief that “the injuries which the plaintiff suffered were a link in the chain of circumstances which tended to show that if the defendant had turned his automobile a matter of inches, he would have avoided injuring the plaintiff. * * * The injuries suffered by the plaintiff in the case at bar demonstrated to the jury that the plaintiff was struck a glancing blow by the defendant’s automobile. Clearly the jury could reasonably infer from the cut to the left side of plaintiff’s head and body that he was struck by the mirror that protruded about two or three inches from defendant’s automobile. The fact that plaintiff’s left leg was severely fractured was a fact from which the jury could infer that the left side of plaintiff’s body was struck by the left side of defendant’s automobile. All of these injuries tended to show the negligence of the defendant in failing to swerve just a few inches.”

We do not agree that the facts of this case were such as would bring it within the rule stated in Orris and the more recent cases which have followed it. Instruction No. 8 did not withdraw from the jury the consideration of any fact which would have thrown any light on the question of defendant’s alleged negligence. The jury was told that the mere fact that plaintiff was injured was no evidence that defendant was negligent. This did not preclude the jury from considering the character and nature of plaintiff’s injuries in determining the issues submitted. Moreover, in this case there was no dispute about the fact that plaintiff was struck by the left side of defendant’s car, and, that being true, it would necessarily follow that a slight swerve of the car by defendant would likely have caused it to avoid striking plaintiff. The contested and decisive issue was whether defendant could have seen plaintiff in time to have swerved and thus have avoided the casualty. The evidence as to the injuries plaintiff received would have been of no assistance to the jury in determining that issue.

As indicated, we conclude that under the facts of this case Instruction No. 8 would not have been confusing or misleading to the jury and was not prejudicially erroneous. We have not included herein a discussion of the newly announced rule concerning the use of “mere fact” instructions stated in the principal opinion in the case of Wise v. St. Louis Public Service Co., Mo., 357 S.W.2d 902, for the reason, among others, that it was specifically limited to cases tried after the publication of that opinion.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.