author: EAGER, Justice.

text:
    W. V. WILLIS, Respondent, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, a Corporation, Appellant.
    No. 52380.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 11, 1967.

      Jo B. Gardner, Monett, for plaintiff-respondent.
    Robert C. Ely, David L. Campbell, St. Louis, for defendant-appellant.
   EAGER, Justice.

Plaintiff, a passenger conductor on a Wabash train running between St. Louis and Decatur, Illinois, was injured on November 21, 1963, in a collision. He sued both the Wabash Railroad and the Terminal Railroad Association of St. Louis; he recovered $30,500 (after a remittitur of $7,500) against the Terminal, but the jury’s verdict was for the Wabash. The Terminal, only, has appealed.

At the time of his injury plaintiff was collecting tickets in the seventh car of a ten-car train, pulled by two diesel units. It was proceeding on the “West Belt Line” tracks of the Terminal and was on the “westward” track, which was not its usual run; plaintiff testified that the Terminal dispatcher had put them on that track and that they had the right of way. In any event, the Wabash train, moving at about five miles an hour, collided head on with a Terminal diesel unit or units pulling loaded freight cars and moving in the opposite direction. Plaintiff further testified that he felt the brake application and the collision at the “same time,” and that there was no warning. He was thrown against and under a seat and lost consciousness for a short time, but he was able to and did make some investigation of the accident; thereafter he apparently “sat out” the rest of the trip letting others do the remainder of his work. At Decatur he went to the Wabash Employees’ Hospital and was there for ten days; he later had from 24 to 26 treatments from a chiropractor. He resumed his work on January 9, 1964, but testified that his condition had, to the time of trial, caused him to lose from two to four trips a month. The medical evidence was somewhat contradictory, as might be expected, but plaintiff’s theory was, generally, that the accident had activated an existing osteoarthritis in the cervical and lumbar regions of his spine, which had previously caused no pain, and that the conditions as of trial time were permanent. We shall not find it necessary to consider the injuries or the damages in any detail, although points are made in the briefs concerning them. There was no further testimony concerning the supposed negligence of either defendant except as already stated.

Plaintiff pleaded (Par. 3 of petition) that: “* * * defendants’ locomotive, track, road-bed, switches and all other equipment in the complex of tracks then and there existing, including the control, operation, condition and maintenance thereof, and dispatching and directing locomotives and trains on said track, were exclusively within the control of defendants’ agents, servants and employees other than plaintiff.” He further pleaded that the collision was unusual and extraordinary and that it would not have been expected or anticipated without negligence of defendants’ employees. It is not contended that this petition stated anything but general negligence. A joint answer was filed by the defendants and therein they admitted “the allegations of Paragraph 3” of the petition. At the close of all the evidence each defendant moved separately for a directed verdict; these motions were overruled. Plaintiff’s verdict Instruction, No. 4, was as follows: “Your verdict must be for plaintiff if you believe:

“1st, The defendants caused their locomotive units to collide, and,
“2nd, Defendants were thereby negligent, and,
“3rd, As a direct result of such negligence the plaintiff sustained damage. (M. A.I. 17.01 (modified) — Offered by Plaintiff.)” As indicated, the jury returned a verdict against the Terminal for $38,000, reduced by remittitur to $30,500. Terminal filed its motion (a) for judgment, or (b) for a new trial. In (a) it raised the insufficiency of the evidence of defendant’s negligence and also the insufficiency of the evidence to show whether the collision was caused by negligence of Terminal or Wabash. In (b) it raised, among other things, very specific allegations of error as to Instruction 4. These motions were overruled, one before and one after the re-mittitur.

We shall discuss, more or less as one point, the submissibility of the case on the res ipsa theory and the propriety of Instruction No. 4. Defendant Terminal says here: (1) that plaintiff failed to make a submissible case of negligence against it; (2) that Instruction No. 4 assumed negligence of Terminal and did not require a finding of such as a causative factor; that it gave no guide to the jury for a determination of Terminal’s negligence; and that, as a res ipsa submission, it was not supported by evidence of exclusive control on the part of Terminal and did not conform to MAI. It further complains of the instruction, if considered as a submission of specific negligence, but plaintiff expressly disclaims any such theory. Plaintiff says: that a submissible res ipsa case was made by the evidence and the answer of defendants, and that the instruction was proper on the admitted and proven facts; specifically, counsel say: “Since the verdict was for Wabash and against Terminal, and in view of the evidence, this admission can be narrowed to defendant Terminal.” In other words, plaintiff’s counsel seems now to say that since Wabash was exonerated, the admission of the joint answer may be considered as an admission by Terminal that it was in sole control. If such is the intent, we do not think that any such conclusion follows.

The doctrine of res ipsa loquitur has been discussed so many times that it would be foolish to review here its general import and meaning. In Layton v. Palmer, Mo., 309 S.W.2d 561, 66 A.L.R.2d 1242, the doctrine was concisely stated, at loc. cit. 564, as follows: “It is firmly established in our jurisprudence that the res ipsa loquitur doctrine only applies when: (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instru-mentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence. Clark v. Linwood Hotel, 365 Mo. 982, 291 S.W.2d 102, 104-105, and McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641.” We note, however, that in many authorities the requirement of control is referred to as “exclusive control.” It must be conceded here that the head-on collision of two trains is an occurrence which does not ordinarily happen if all of those in charge use due care, and that as between plaintiff on one side and the two defendants on the other, the latter possessed superior knowledge or means of information as to the cause of the collision.

The underlying issue here is whether the evidence establishes such a measure of control in the defendants as to permit a submission against both on the theory of res ipsa loquitur. We have concluded that it does not. And, with reference to plaintiff’s contention that the admission of the answer may now “be narrowed to defendant Terminal,” we hold that this is not valid. The submission of a case, res ipsa or otherwise, must be proper when made, — not as supposedly modified or varied by the subsequent verdict. We have quoted paragraph 3 of the petition and the admission thereof in defendant’s answer verbatim. We do not construe the admission as one that the defendants had joint control of each and all of the separate instrumentalities and functions, but simply as meaning that the defendants in the aggregate had control of all such, and not that they had or exercised a joint control of each and all such instrumentalities and functions. But even if we are wrong in that construction, we shall not permit such an admission to pervert the law as applied to the physical and the conceded facts; here everyone knew that the Wabash operated its own train, that the Terminal operated its train, and that (as plaintiff testified without contradiction) the Terminal dispatcher routed the Wabash train. Thus, there were separate instrumentalities and functions operated separately. We conclude that there was no true joint control on these facts.

The application of the doctrine of res ipsa loquitur to more than one defendant is not precluded, but the cases indicate that there must be a single instrumentality (or group of instrumentalities) which is under the joint control of both. At least, the doctrine has generally been so applied. State ex rel. and to Use of Brancato v. Trimble, 322 Mo. 318, 18 S.W.2d 4; Estes v. Estes, Mo.App., 127 S.W.2d 78; Meny v. Carlson, 6 N.J. 82, 77 A.2d 245, 22 A.L.R.2d 1160; Dearth v. Self, 8 Ohio App.2d 33, 220 N.E.2d 728; First Nat’l Bank of Arizona v. Otis Elevator Co., Inc. v. Maurer, 2 Ariz.App. 80, 406 P.2d 430; Biondini v. Amship Corp., 81 Cal.App.2d 751, 185 P.2d 94; Enslein v. Hudson & Manhattan R. R. Co., 8 Misc.2d 87, 165 N.Y.S.2d 630; Greet v. Otis Elevator Co. et al. (D.C.Ct.App.), 187 A.2d 896. Upon this theory the defendants may be in exclusive, joint control. Dearth, supra.

In Brancato, supra, plaintiff, a passenger in a car, sued her host driver and the owner of a bus with which the car collided. Only general negligence was pleaded as to each defendant. Submission as to both defendants was made on the res ipsa theory which the Court of Appeals held proper. On certiorari the opinion was quashed. This Court said, 18 S.W.2d loc. cit. 5 (quoting): “A standard text states the rule, as follows: ‘The causative force of the injury must be shown to be controlled by the defendant; it must also appear that there was no other equally efficient proximate cause. If from the nature of the event causing the injury an inquiry naturally arises which one of two or more persons, acting independently, is responsible; or, if it appear that the injury was proximately caused by the independent acts of two or more persons, the application of the maxim is excluded by its terms.’ 1 Sherman & Redfield on the Law of Negligence, § 58b (6d) p. 131.”

In Estes, supra, plaintiff, a passenger, also sought to apply the doctrine in a suit against the host driver and the operator of the other car following a head-on collision; the case was so submitted. There was a verdict against both. Only the host driver appealed. The opinion is perhaps not too clear in some respects, but we construe it as reversing the judgment because the case was submitted upon the res ipsa theory against two drivers, each operating his own instrumentality independently, and each only in exclusive control of his own. The Court thus said in part, 127 S.W.2d loc. cit. 81: “ ‘Where either one of two defendants wholly independent of each other may be responsible for the injury complained of, the rule of res ipsa loquitur, in accordance with the preceding principles, cannot be applied.’ 45 C.J. pp. 1212, 1213, 1214. * * * ‘The rule will not be applied where the evidence discloses that the injury might have occurred by reason of the concurrent negligence of two or more persons or causes, one of which was not under the management and control of the defendant.’ 9 Blashfield Cyc. of Auto. Law and Practice, Permanent Edition, § 6046, page 302.”

Plaintiff cites no cases on this substantive question, but we shall consider the case of Barb v. Farmers Ins. Exchange, Mo., 281 S.W.2d 297. There a pile of boxes left in a basement corridor or passageway fell on plaintiff and she was injured. She sued both the owner of the building and the lessee of certain basement space. The passageway was intended for the use of all tenants and their employees. The lessee had stacked the boxes of supplies in the passageway. Plaintiff was an employee of a tenant. The case was pleaded and submitted on the res ipsa theory as to both defendants. This Court held: that each defendant owed plaintiff a duty to make and keep the passageway reasonably safe for invitees, and also a duty to remove hazardous conditions or obstructions; that the defendants were “in concurrent control in a legal sense and in a factual sense with incidental duties to plaintiff although their duties were of different factual bases in the circumstances surrounding the occurrence.” The Court thus affirmed the judgment. The case is not controlling here because in that case there was clearly a joint, concurrent control of a single instrumentality.

We hold here that plaintiff did not make a submissible res ipsa case against both defendants, and since the case was submitted in that way, the entire submission was improper. We do not find it necessary to rule whether or not plaintiff might, on this or other evidence, make a res ipsa case solely against Terminal, as that question is not presented.

Plaintiff concedes that Instruction No. 4 submitted general negligence only; it was not in any form prescribed by MAI for a res ipsa instruction; nor do the MAI forms provide any such instruction for use as against two defendants (except by a reference to MAI 19.01, which would not correct the present difficulty) or where control is an issue. We rule the impropriety of the instruction by holding that the evidence did not support this or any other res ipsa submission against the defendants. The form actually used here was an attempted modification of MAI 17.01, which is provided for the submission of a single act of specific negligence. Other objections to the instruction are pointed out in defendant’s brief, and these may be noted in the event of another trial. If considered as a submission of specific negligence (which plaintiff disclaims), the instruction does not hypothesize or require the finding of any act of specific negligence on the part of either defendant. Heiter v. Terminal R.R. Ass’n of St. Louis, Mo.App., 275 S.W.2d 612.

We find it unnecessary to discuss the several points concerning damages, the final argument or excessiveness. We have determined that, acting in our discretion, the case should be remanded in order that plaintiff may retry it against Terminal if he so desires, particularly in view of the comparative newness of the determinative issue which we have ruled. There is authority for such action under analogous circumstances. Homfeld v. Wilcoxon, Mo., 304 S.W.2d 806, 811; Cudney v. Midcontinent Airlines, Banc, 363 Mo. 922, 254 S.W.2d 662, 667; McClanahan v. St. Louis Public Service Co., Banc, 363 Mo. 500, 251 S.W.2d 704, 709; Grissom v. Handley, Mo.App., 410 S.W.2d 681, and cases there cited. See also Rule 83.13, V.A.M.R.

The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion.

All of the Judges concur.


source: Caselaw Access Project

author: PRITCHARD, Commissioner.

license: Public Domain

text:
    Joseph L. REDDICK and Elizabeth E. Reddick, Appellants, v. Fleek A. PIPPIN and Lucille Pippin, Respondents.
    No. 52781.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.
    Motion for Kehearing or for Transfer to Court En Bane Denied Dec. 11, 1967.

      Joseph Langworthy, Pacific, for plaintiffs-appellants.
    Thurman, Nixon, Smith & Howald, J. W. Thurman and James E. Bowles, Hillsboro, for defendants-respondents.
   PRITCHARD, Commissioner.

Plaintiffs sued defendants for $20,000 actual and $20,000 punitive damages for alleged continuous discharge of a large quantity of raw sewage containing detergents and other deleterious and noxious substances from their land onto the adjacent land of plaintiffs, polluting a brook and a residential well. Trial was to the court which granted judgment for defendants.

Defendants own a rectangular piece of property fronting on the north on Miller Road and on the east on Highway 61 and 67. It is about 805 feet long north to south. The width is not shown. The whole tract is described as semicup shaped, with the high portions to the north and east and sloping down to the south or southwesterly. In the northeast corner is situated a motel, a restaurant, a filling station and a wash-house. To the west of the motel is a trailer court with a road access off of Miller Road. To the south is a driveway passing by the washhouse, and a house farther to the south. The Jim Kohler store is located southeasterly of the house.

Plaintiffs own a triangular shaped tract west of defendants’ property, but with four lots each 209 feet deep, and totaling 393.8 feet in width fronting on Miller Road, in the northeast corner of plaintiffs’ tract. These four lots are owned by D. Lubke, Beyers, A. Lubke and D. Wieland. On to the west is situated plaintiffs’ house and their 305-foot deep well which they claim to have been polluted by defendants. The well was on the property when plaintiffs bought it in 1943, but it was redrilled 205 feet deeper the year following. The water was good until, according to Mr. Reddick, Mr. Pippin constructed the lagoon in 1960. A dam was constructed on the lowest part of defendants’ property with diversion ditches uphill from the lagoon, which was about 150 feet by 150 feet in size. Through the dam, at its top, was placed an overflow or a discharge pipe, which first extended through plaintiffs’ fence. Mr. Reddick took the pipe out so that it was about two to three feet from the fence. A pipe, eight inches in diameter or larger, was placed by defendants running from the motel, restaurant, filling station and trailers, down into the lagoon. A natural drainage ditch ran from the high, east portion of defendants’ property down across plaintiffs’ property. According to Mr. Reddick, water from the discharge pipe continuously seeps into the drainage ditch; there is also seepage underneath the dam which is placed on limestone. There was an artesian well on the east boundary of the lagoon which formerly flowed into and down the ditch.

Mr. Reddick testified that there is an odor from the sewage, the lagoon and in the ditch, so strong that he cannot work there, and if the wind is from that direction he cannot sit in the yard at his house, 400 feet to the north of the lagoon. The water in the ditch or brook was clear before the lagoon was started, and since then the water has been foul. He has not been able to use the water from his well except for washing and toilets, and has had to haul water in plastic jugs. In Plaintiffs’ Exhibit K, a photograph, is depicted some accumulated foam in the ditch. Mr. Reddick testified that this condition occurred more frequently in cool weather, but most of the time some of it can be seen. There was no foam on the water until the lagoon was started.

On cross-examination, Mr. Reddick testified that his well is 400 feet away from and 30 feet higher than the lagoon; that no surface water could get into the well from the ditch. His own septic tank is 20 feet in front of his house, draining toward the road on a terrace. Of his neighbors, two drain sewage to the front and two to the rear down the hill into septic tanks. These neighbors live above his well and their septic tanks are above his well.

Elizabeth Reddick testified that the water in their well was good up to the time construction of the lagoon was started. After-wards, it “smelled” bad and “it’d kinda smart my tongue.” She had not examined the ditch or brook because of a heart attack and an allergy condition. She was aware of an odor from the brook when she was outside, “a stale toilet like odor,” sewage type. She did not know whether the odors she smelled came from the lagoon or her neighbors’ septic tanks.

For defendants, Sanitary Engineer George J. Borgstede testified: He was employed by Mr. Pippin to draw the lagoon plans, which he did and submitted them to the Jefferson County Health Department which approved the prints and issued a construction permit. Borgstede determined what was going to be served by the lagoon — a beauty shop, a barber shop, a restaurant, a filling station, a 22-unit motel, and for fifteen mobile homes (which was more than then there and more than are there at present), a total of 115 persons for the one-third acre lagoon, although there were not that many people using it. The construction was done according to his plans and specifications. “The lagoon is working as one would desire. It’s working properly.” It is an efficiently operated lagoon, with a diversion ditch around it to take care of upper surface water. Bacterial action takes place to change the raw sewage from an unsatisfactory condition to a satisfactory condition which would be permissible to be flowing down a stream from the standpoint of Sanitary Engineering Health Department Standards. The water which is discharged from this particular lagoon is free of odors. Borgstede inspected it the day before trial. There has to be an overflow through the pipe during normal operation, from six inches under the surface of the lagoon. When the water in the lagoon has a green color it is working properly, but when it turns gray it becomes septic and has an offensive odor.

Oscar Feger, a Sanitary Engineer of the Jefferson County Health Department for 10 years, is familiar with defendants’ lagoon. He approved Borgstede’s plans, made a survey of the site and “okayed” it. An inspection was made by the Water Pollution Board in Jefferson City which issued an operating permit. Feger has seen the place from time to time since its construction, the last time the day before trial. The lagoon is definitely operating in an efficient manner in accordance with the requirements of the Jefferson County Health Department. There was absolutely no odor to it; it was not unsightly; it had a good green color; and as far as Feger was concerned the operation was “100 per cent perfect.”

Bill R. Crockett, a Field Engineer for the Missouri Water Pollution Board, has duties of inspection of newly constructed sewage facilities, including lagoons. It was his opinion that defendants’ lagoon appeared to be receiving adequate maintenance and operation, and was of adequate size to treat the waste from the establishments. He made a dissolved oxygen test of the water and found it to be higher than he expected, and it was normal. The water acid or alkaline test was also good. So far as his department is concerned, the lagoon is in satisfactory working condition at the present time.

Plaintiffs first say that the court erred in refusing to admit into evidence the sample of water, Plaintiffs’ Exhibit C, taken from the lagoon, and in refusing to permit testimony about it. The issue was whether defendants polluted or discharged raw sewage onto plaintiffs’ premises. Counsel for plaintiffs stated to the court that Mr. Reddick erroneously took the sample from the lagoon rather than from the ditch on plaintiffs’ property. Obviously, the water in the lagoon could have no relevance to this issue, and although plaintiffs argue that it was relevant to the issue of odors, obnoxious gases, emanating from the lagoon, the offer of the sample was not made for the purpose of proving up the latter issue as the transcript shows. The fact that the water in the lagoon itself would be polluted in no way tends to show that the water discharged therefrom is polluted. The trial court did not err in refusing this evidence.

Plaintiffs claim that the court erred in unduly limiting cross-examination of defendants’ witnesses. The transcript shows that at no time was there any limitation of cross-examination except where there existed repetition with respect to whether the bacterial action within the lagoon killed all the “bad” bacteria and the “good” bacteria. The transcript shows that the witnesses fully and clearly went into these matters when asked, as well as whether there was compliance with standards for the operation of the lagoon. Point II, raising this issue, is overruled.

The evidence does not support plaintiffs’ claim that defendants constructed the lagoon in wanton and reckless disregard of plaintiffs’ rights; that it was inadequate for sewage dumped into it and did not prevent the discharge and overflow of sewage from defendants’ land to plaintiffs’' land. Plaintiffs did not present any evidence at all that the placing of the lagoon and its operation were malicious acts, “the intentional doing of a wrongful act without just cause or excuse.” Ackmann v. Keeney-Toelle Real Estate Company, Mo., 401 S.W.2d 483, 489. Of course, as defendants point out, the construction was intentional, but it does not follow that there was an intentional improper construction so as to amount to malice. Plaintiffs presented no> evidence that the lagoon was inadequate for sewage dumped into it, or that it did not prevent the discharge and overflow of sewage from defendants’ land onto plaintiffs’ land. The evidence as to the adequacy of the lagoon came from defendants’ witnesses, and is overwhelming that the same was constructed and operated properly to^ the extent that 95 to 98 percent of harmful bacteria was removed before water was discharged. As to odors emanating from the lagoon, plaintiffs’ oral testimony that they could detect them at their house, some 800 feet north, was for the court. The conclusion that there were no foul odors is justified by defendants’ contrary evidence on the point, and further that plaintiffs’ other neighbors, within 150 feet, discharged sewage much closer into septic tanks.

The evidence shows that the depression on plaintiffs’ land, extending upwards onto defendants’ land, a ditch or brook (by reason of the artesian well draining or seeping into it), is a natural drain for the area. Diversion ditches were constructed around the lagoon for natural surface waters which enter plaintiffs’ land in the same place as before. Plaintiffs have not adduced proof that the water of this ditch or brook is polluted so as to be unusable. The evidence from defendants is that the waters of a properly operating lagoon, as this was, may be discharged into any waters in this state, and that a properly operating lagoon would remove from 95 to 98 percent of the bacteria in the sewage before discharge from the top 6 inches of the surface of the lagoon.

There is no direct, convincing evidence that the lagoon polluted plaintiffs’ well. Their conclusion was that it did, but there is no evidence that any pollution in the well came from the lagoon 30 feet below and 800 feet to the south. It is just as reasonable to conclude that such well pollution came from plaintiffs’ uphill neighbors’ septic tanks. There was no comparison of chemical analyses of water from the lagoon and that from the well as might tend to show the source. Plaintiffs’ well pollution, if any, could come from either one of two sources, and they have failed to prove a source of their alleged injury for which defendants would be liable.

Although plaintiffs’ cited cases do hold that it is an actionable nuisance for one to collect waters, including sewage, upon his land and discharge it through artificial channels upon the lands of another, Paddock v. Somes, 102 Mo. 226, 14 S.W. 746; Kelly v. Kansas City Building & Loan Ass’n, 229 Mo.App. 686, 81 S.W.2d 440 (where the septic tank pollution was definitely proved); Clark v. City of Springfield, Mo.App., 241 S.W.2d 100 (where inadequacy of a sewer was proved); and Blydenburgh v. Amelung, Mo.App., 309 S.W.2d 150, yet those cases are inapplicable. Plaintiffs have not proved that sewage was deposited upon their lands from defendants’ lagoon. The allegation of creation and maintenance of a nuisance in this respect is unsupported by proof; as to the existence of odors, that issue turns upon the trial court’s judgment of credibility of witnesses. The judgment is not manifestly for the wrong party, and it is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

FINCH, P. J., and EAGER and HOLMAN, JJ., concur.

DONNELLY, J., not sitting.


author: SEILER, Judge.

text:
    MID-WEST ENGINEERING & CONSTRUCTION CO., a Corporation, Plaintiff-Appellant-Respondent, v. Joseph A. CAMPAGNA, Randolph Development Corporation, a Corporation, and Campagna Corporation, a Corporation, Andrew Sansone and Roads Realty, Inc., a Corporation, Defendants-Appellants-Respondents.
    No. 52572.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.
    As Modified on Court’s Own Motion; Motion to Modify Opinion Denied Dec. 11, 1967.

      Shifrin, Treiman, Schermer & Susman, Sylvan Agatstein, St. Louis, for plaintiff-appellant-respondent.
    Ackerman, Schiller & Schwartz, Clayton, for defendants-appellants-respondents, Andrew Sansone and Roads Realty, Inc., Gideon H. Schiller, Clayton, of counsel.
   SEILER, Judge.

This case is the sequel to Mid-West Engineering & Construction Co. v. Campagna et al., (Mo.Sup.) 397 S.W.2d 616, and involves the question of whether interest accruing on the principal sum due the plaintiff-contractor for work done and materials furnished is lienable against the interests of the owner and lessee of the premises, not parties to the construction contract. In its petition plaintiff prayed judgment against the obligors in the construction contract for the entire balance of principal on the account, $73,236.37, with 6% interest from September 17, 1958, and costs, and further that said amount, interest, and costs be adjudged a mechanic’s lien against the land in question, owned by defendant Andrew Sansone and leased by defendant Roads Realty, Inc. On July 18, 1964, the trial court entered judgment for plaintiff against the obligors in the sum of $73,236.37, with interest at 6% from September 17, 1958, to date, to-wit, $25,632.33, or a total of principal and interest of $98,869.10⅛ but the court did not decree the same to be a mechanic’s lien against the land.

On appeal, in 397 S.W.2d 616, the court held plaintiff was entitled to a lien for work done and materials furnished through July 29, 1958, but not thereafter because of certain lien waivers, and reversed the judgment of the trial court insofar as it disallowed the lien claim of plaintiff. The cause was remanded to the trial court for further proceedings with respect to such lien claim consistent with the opinion and the remainder of the judgment of the trial court was affirmed, 397 S.W.2d 616, 630, 634.

Back in the trial court a general execution was issued on the judgment recovered against the defendant obligors. It was returned unsatisfied July 5, 1966. Plaintiff and defendants Sansone and Roads Realty, Inc., owner and lessee, respectively, entered into a stipulation providing that by consent the court should adjudge and decree that plaintiff was entitled to a mechanic’s lien against the freehold interest and leasehold of said defendants in the principal sum of $51,100 for work done and materials furnished by plaintiff, which sum was to be paid contemporaneously with the filing of the stipulation and nulla bona returns on the general judgment debtors.

The parties further stipulated the trial court should determine as the sole issue whether plaintiff was entitled to interest upon the principal sum of $51,100 accruing ■from September 18, 1958, to be included with said principal sum as a mechanic’s lien claim and if entitled to include said interest, the amount and the basis upon which computed. The parties also stipulated that no admissions were made and that both sides reserved the right to appeal.

The court found that plaintiff was entitled to interest on the $51,100 from September 18, 1958, until July 5, 1966, the date on which the principal sum of $51,100 was paid to plaintiff, said interest amounting to $23,906.29, which amount the court decreed as a mechanic’s lien against the property ahead of defendant Sansone’s fee and defendant Road Realty, Inc.’s lease.

Both sides have appealed. Defendants Sansone and Roads Realty, Inc., contend no interest whatever should be allowed against the landowner and lessee, they not having been parties to the construction contract. Plaintiff contends interest is allowable and that it should have been computed on the $51,100 to the date of the original judgment and thereafter computed “upon that judgment including interest and principal until July 5, 1966”.

We are of the opinion the trial court was correct in holding the interest lienable. Rule 101.06 provides “The court shall ascertain, by a fair trial in the usual way, the amount of the indebtedness for which the lien is prosecuted, and may render judgment therefor in any sum not exceeding the amount claimed in the demand filed with the lien, together with interest and costs * * * ” (emphasis ours). This rule is identical with Section 429.210, which has been part of the mechanic’s lien law since 1866, G.S. Mo. 1866, Ch. 195, Sec. 11. Defendants contend the landowner’s liability is predicated solely on rules 101.08 and 101.09; that rule 101.08, entitled “Judgment 6h Constructive Notice”, and rule 101.09, entitled “Judgment on Personal Service”, prevent interest liability from being imposed on owners who are not parties to the contract; that the “indebtedness” referred to in rule 101.08 does not mention or include interest and since interest, they therefore contend, is not allowed under said rule, the same is true of rule 101.09, because under the latter rule two levies are to be made, the first against the debtor and if that is not sufficient, then a second levy for the residue as provided in rule 101.08, which does not include interest.

For authority defendants cite Hill v. Chowning, 93 Mo.App. 620, 67 S.W. 750, saying' it holds that “Rule 101.06 covers only cases where the debtor and owner are one and the same person and that Rule 101.09 only has reference to cases where the debtor and owner are different persons” and that “When it comes to levying on a judgment against the non-contractor owner, one must look solely to Rule 101.08.”

The question in the Hill case was, where the contractors had prosecuted to judgment a suit to establish a mechanic’s lien (on which a special execution was returned wholly unsatisfied), but had obtained no personal judgment against the parties to the contract, could the contractors bring a subsequent action against some of the same defendants for the amount of their subscription to the building contract? The court held no, that in the first action instead of taking a personal judgment and a judgment to enforce the lien, they took only a judgment to enforce their lien and so waived their right to prosecute another suit for the same demand. The court said that Section 4216, R.S.1899 (now rule 101.09) has reference to cases where the debtor and the owner are not one and the same person and is mandatory. This, however, referred to the object of said statute to require payment first from the principal debtor if sufficient property could be found with the real estate charged to be resorted to only on a failure thus to secure satisfaction, as can be seen from the citation in the opinion of Farley Bros. v. Cammann, 43 Mo.App. 168.

We fail to see how Hill v. Chowning supports defendants’ contentions. The case makes no mention of what is now rule 101.06 and cannot be said to hold that the judgment referred to in said rule, including interest, applies only where the debtor and the owner are the same. All the case says about the situation where the debtor and the owner of the property are the same person is that such case is governed by the usual provisions of the code of civil procedures, as specifically provided by what is now rule 101.03.

It is clear that rule 101.06, by express terms, allows interest to be included in a judgment in a mechanic’s lien suit and if plaintiff succeeds in establishing his right to a lien, the judgment rendered, including interest, is a lien upon the land and the improvements and we overrule defendants’ contention to the contrary. It does not seem reasonable that the mechanic or materialman can rely on the debtor-contractor for principal and interest (as defendants concede he can do), but where the debtor and owner are different persons, can rely on the owner only for principal, and we do not think the fact that interest is not mentioned in rules 101.08 and 101.09 calls for such a result. These two rules relate to procedure, to the provisions to be included in the judgment as to levy on the property described in the petition.

Defendants contend it is unfair to include interest in the lien allowed against a non-privity owner. However, it must be remembered the owner has it in his power originally to prevent construction from taking place on his land under circumstances which might be the basis of a mechanic’s lien against it. Here, for example, this court held on the first appeal that the parties contemplated improvements being made on the premises, that these were a benefit to the reversionary interests, and that the work was done and materials furnished under conditions subjecting the interests of these defendants to liens. If the landowner sees fit to lease his land for commercial development he must take into consideration the mechanic’s lien statutes. The lien is only an incident to the right to recover for the work and materials. It would be an incomplete remedy to allow a lien for the reasonable cost of the work and materials but not interest thereon after the account should have been paid. We have held that the mechanic’s lien law should be construed as favorably to mechanics and materialmen as its terms will permit, Vasquez v. Village Center, Inc., (Mo.Sup.) 362 S.W.2d 588, 591-592, and it was said in Joplin Supply Co. v. West, 149 Mo.App. 78, 130 S.W. 156, 159-160, that “Our courts have always held the law should be liberally construed.” Accord: Chance v. Franke, 350 Mo. 162, 165 S.W.2d 678, 680. The statute is a remedial one, Gruner & Bros. Lumber Co. v. Nelson, 71 Mo.App. 110, 121. If the contractor can only recover for the reasonable cost of the work and materials the effect is that the debtor or the owner are the beneficiaries of an interest free loan. We believe the legislature, in providing in Section 429.210 that the court may render judgment for the amount claimed in the demand, “together with interest”, meant interest is includable and lienable in any mechanic’s lien judgment, including the situation where the owner is not in privity with the contractor. The exact point does not seem to have been discussed by the Missouri courts, although we note that in Christopher & Simpson Architectural Iron & Foundry Co. v. Steininger Const. Co., 200 Mo.App. 33, 205 S.W. 278, 286, which was an action by a subcontractor against the general contractor and the owner for a mechanic’s lien, the court approved the allowance of interest to plaintiff from the date on which it first demanded payment of its claim. In Holland v. Cunliff, 96 Mo.App. 67, 69 S.W. 737, no personal judgment could be entered against the owners, because they had been discharged in bankruptcy, but nevertheless the court affirmed a mechanic’s lien judgment including interest against the premises. In Darlington Lumber Co. v. Pottinger, 165 Mo.App. 442, 147 S.W. 179, which apparently involved a mechanic’s lien against a non-contracting owner, the court held that an instruction offered by plaintiff should have been given, which instruction called for the allowance of interest.

Defendants also contend that under rule 101.08 no interest is collectible from the landowner where the contractor has “skipped” and can be served only by publication and it therefore would be discriminatory and unconstitutional to hold that interest is collectible from the landowner under rule 101.09, where personal service is obtained on the general judgment debtor; that this would not be a rational classification. Defendant cites the due process clauses of the state and federal constitutions in support of this contention, along with three Missouri decisions, which we have examined and do not find in point. As earlier indicated, we do not agree with defendants’ construction of these statutes and the alleged constitutional point is not meritorious. In any event, no such contention was presented to the trial court at the pretrial or trial stage. It was first mentioned in the motion for new trial and hence was not raised at the first available opportunity and is overruled.

Defendants also contend that since the owner and lessee were not in privity with the plaintiff, plaintiff’s claim must be established by quantum meruit and hence there can he no interest prior to judgment. In Mississippi Woodworking Company v. Maher, (Mo.App.) 273 S.W.2d 753, 755, in commenting on the situation where there is no contractual relationship between the contractor and the landowner, the court said:

“ * * * The landowner has never agreed to pay the sub-contractor anything and is not personally indebted to him. It is only by reason of the mechanic’s lien statute that the property may be subjected to the payment of the lien claim. In this situation the lien is not necessarily for the contract price but is only for the reasonable value of the labor and materials furnished * * * ”

Defendants do not contend the lien account statement was not sufficiently itemized, and the court in the original opinion held plaintiff was entitled to a lien. The fact that the claim is for the reasonable value of the labor and materials furnished does not mean interest is not properly includable in the judgment. See Laughlin v. Boatmen’s Nat. Bank of St. Louis, 354 Mo. 467, 189 S.W.2d 974, 979, where the court considered the question of whether on a re-trial the administratrix could recover interest on an action in quantum meruit for the reasonable value of legal services, defendant contending the claim was not an “account” within the meaning of the statute, and the court saying:

“ * * * On principle there is no reason for denying interest when the action is in quantum meruit and the claim is un-liquidated in the sense that the amount due is to be measured and determined by the standard of the reasonable value of the services * * * If the defendant is liable for the reasonable value of services he is under a legal duty to liquidate the sum due and interest should be allowed from the time he should have paid * * * This principle has been applied often in actions for the reasonable value of work and labor * * * ”

Defendants’ above contention is therefore overruled.

Plaintiff’s claim the trial court should have computed interest on the $51,100 from September 18, 1958, to the date of the original judgment, and thereafter computed interest on the combined total of principal and interest until July 5, 1966, should be sustained. Plaintiff had a general judgment against the principal debtors for $98,869.10, which included interest on the principal sum, $73,236.37, from September 17, 1958, to the date of judgment. This judgment was affirmed on appeal, 397 S.W.2d 616. The principal amount with which we are now concerned, $51,100, representing the work done and materials furnished, through July 29, 1958, was arrived at by stipulation. It stands in place of what the trial court should have found at the time of the original judgment was the lienable portion of the principal sum, $73,236.37. Interest, therefore, should have been computed on the $51,100 from September 17, 1958, to the date of judgment July 18, 1964, and thereafter on that judgment, including interest and principal until July 5, 1966. This means the judgment of the trial court should have been for $26,023.24 instead of $23,906.29.

The judgment is therefore reversed and the cause is remanded to the circuit court with directions to enter judgment in favor of plaintiff in the amount of $26,023.24 as of September 27, 1966, and that plaintiff shall have a mechanic’s lien against the real estate described in the petition in said amount, which shall be a prior lien to the fee interest of defendant Sansone and the leasehold interest of defendant Roads Realty, Inc., with the costs to be assessed the same as set forth in the judgment of the trial court rendered September 27, 1966.

STORCKMAN, J., and MORGAN, Special Judge, concur.

HENLEY, P. J., not sitting.

      . Except as otherwise noted, all references to rules are to V.A.M.R., and all statutory references are to RSMo 1959 and V.A.M.S. Secs. 429.180, 429.210, 429.230 and 429.240 mentioned herein are, except for a few minor changes, identical with rules 101.03, 101.06, 101.-08 and 101.09.

      . We need not concern ourselves under the facts of this particular case as to the proper starting date for the Interest, because the stipulation provides interest, if allowed, shall be computed from a given date.


text:
    The THREE RIVERS JUNIOR COLLEGE DISTRICT OF POPLAR BLUFF, Missouri, a body corporate and subdivision of the State of Missouri, and John Garver, William Becker, Bob Kitterman, A. S. J. Carnahan, James A. “Bud” Holloway and Ben Bidewell, Members of and Comprising the Board of Trustees of the Three Rivers Junior College District, Relators, v. The Honorable W. O. STATLER, Judge of Circuit Court of Cape Girardeau County, Missouri, Sitting as Special Judge, Respondent.
    No. 53192.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1967.
    Rehearing Denied Dec. 11, 1967.

      George B. Scott, Jr., John D. Henson, Poplar Bluff, Ziercher, Tzinberg, Human <& Michenfelder, Erwin Tzinberg, Robert C. Jones, Clayton, Armstrong, Teasdale, Kramer & Vaughan, Kenneth Teasdale, Bruce E. Woodruff, St. Louis, for relators.
    Hendren & Andrae, John H. Hendren, Alex Bartlett, Jefferson City, Roy W. McGhee, Jr., Piedmont, John W. Belew, Doniphan, Edward M. Wetton, Van Burén, for respondent.
    Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for Missouri State Board of Education, amicus curiae.
    Dietrich, Tyler, Davis, Burrell & Dicus, William J. Burrell, Clarence H. Dicus; Kansas City, for amicus curiae The Junior College District of Metropolitan Kansas City, Missouri.
    Armstrong, Teasdale, Kramer & Vaughan, Kenneth Teasdale, Bruce E. Woodruff, St. Louis, Ziercher, Tzinberg, Human & Michenfelder, Erwin Tzinberg, Robert C. Jones, Clayton, for all other amici curiae.
   SEILER, Judge.

Prohibition. The essential facts are not in dispute. The Three Rivers Junior College District of Poplar Bluff, Missouri, was organized in 1966, under Secs. 178.770-178.890, RSMo 1965 Supp., V.A.M.S. It takes in all the territory in Butler, Carter, Ripley and Wayne Counties and very small portions of Stoddard, Bollinger, Madison and Reynolds Counties. It includes all the school districts in the first four named counties, twenty-five altogether. The vote in Butler County was about 9 to 1 in favor of the organization of the district. The vote in Carter, Ripley and Wayne Counties was about 4 to 1 against the proposition. The Junior College District imposed a tax of 40 cents on the $100 assessed valuation in the district, under Sec. 178.870, RSMo 1965 Supp., V.A.M.S. Resident taxpayers in Carter, Ripley and Wayne Counties filed separate suits to enjoin their respective county clerks and collectors from extending the tax levy on the tax books and collecting same, on the ground that the levy was unlawful for two reasons: (1) the 40 cents levy, when added to other levies by other school districts in the respective counties and the Junior College District, exceeds the constitutional limitation on levies by school districts prescribed in Article X, Section 11(b), 1945 constitution, V.A.M.S., and (2) the Junior College District was illegally formed.

The suits were consolidated and respondent judge enjoined the defendants from extending or collecting the taxes “for Junior College purposes in any local school district where the total levy, including the forty cent levy for Junior College district purposes exceeds the limitation set out in article X, section 11 of the Constitution of Missouri”. The order was stayed to give relators time to file a petition for writ of prohibition. We issued our provisional rule and the matter is now before us on whether to make the rule absolute or to quash it.

There can be no serious question of the power of the legislature to authorize organization of junior college districts providing instruction for high school graduates. In 1961, Laws of Missouri, 1961, pp. 357-365, RSMo 1961 Supp., Secs. 165.790-165.840, and again in 1963, when the 1961 provisions were repealed and then re-enacted in substantially the same form and language as part of a complete re-codification of the school laws generally, Laws of Missouri, 1963, pp. 200-335, RSMo 1965 Supp., Secs. 178.770-178.890, V.A.M.S., the legislature provided a method for organization of junior college districts to “provide instruction, classes, school or schools for pupils resident within the junior college district who have completed an approved high school course”. All this was at a time when it was common knowledge that the demand and the need throughout the state for higher education called for expansion of public educational facilities. The legislature evidently believed one solution was to increase the size and capabilities of the junior college system, which until then had been limited to what could be offered by local districts in conjunction with their high schools, RSMo 1959, Sec. 165.123.

Article IX, Section 1(b), new in the 1945 constitution, provides that “Specific schools for any contiguous territory may be established by law”. Counsel for respondent concede in their brief “there can be no doubt” this provision authorizes “the formation of * * * junior colleges serving areas of ‘contiguous’ territory.” Even if Article IX, Section 1(b) were not in itself sufficient authorization, we find nothing in the constitution prohibiting the legislature from authorizing the organization of junior college districts or providing for instruction for high school graduates, and it is a basic principle that the General Assembly, unless restrained by the constitution, is vested in its representative capacity with all the primary power of the people. Rathjen v. Reorganized School District R-II of Shelby County, (Mo.Sup.) 284 S.W.2d 516, 525. The general principle is that the legislature has the power to enact any law not prohibited by the federal or state constitution, State ex rel. Heimberger v. Board of Curators, 268 Mo. 598, 188 S.W. 128, 131, 133; Todd v. Reynolds, (Mo.Sup.) 199 S.W. 173, 175; City of Maryville v. Cushman, 363 Mo. 87, 249 S.W.2d 347, 350. It makes no difference that the 1945 constitution does not specifically mention junior colleges, Kansas City v. Fishman, 362 Mo. 352, 241 S.W.2d 377; City of Maryville v. Cushman, supra, and, as we say, the legislature unquestionably had the power to provide for the establishment of junior college districts.

The real question is whether the 1945 constitution prohibits the legislature from giving the junior college district power to levy a tax as provided by Sec. 178.870, RSMo 1965 Supp., V.A.M.S., the applicable part of which provides as follows:

“Any tax imposed on property subject to the taxing power of the junior college district under article X, section 11(a) of the constitution without voter approval shall not exceed * * * forty cents on the hundred dollars assessed valuation in districts having less than one hundred million dollars assessed valuation * * * ”

Relators contend that under Article X, Section 11(b) the junior college district has the constitutional power to levy up to 65 cents on the $100 assessed valuation, except that in this particular instance, as permitted by the constitution, this has been further limited by law to 40 cents, Sec. 178.870, supra. Respondent contends, however, that relators’ levy of 40 cents must be combined with the levy by local school districts within a particular geographical area where the junior college district overlies the local district to determine whether the constitutional limit has been exceeded; that when so treated the limit is plainly exceeded, as it is stipulated that each of these various school districts in the Three Rivers Junior College District of Poplar Bluff already levies a tax at least equal to that authorized by law to be levied by said separate districts without voter approval; that under Article X, Section 10 (a) and Section 11, taken in its entirety, the legislature is forbidden to extend authority for any ad valorem taxes not specifically provided or authorized in the constitution; that a junior college district tax is not authorized as such and a junior college district cannot go beyond what is already authorized by the constitution for schools. What it comes down to, therefore, is whether the portions of Article X, Section 11(b), which refer to school districts, mean that each school district is authorized to levy the full amount stated, even though there may be more than one layer of school districts covering a given territory, or whether all the school districts in a given area combined must stay within the limit specified. For example, if local district A is one which can levy to $1.25 without voter approval and it levies, say, $1.00 of the $1.25, can the junior college district overlying the same area levy only 25 cents, as respondent contends, or 40 cents, as relators contend? Or, using the same example, if the junior college district levies its full 40 cents, can the local district then levy only 85 cents ?

Although counsel for respondent, in an interesting brief, capably argued, make various contentions, their main argument is based on the proposition that it has become firmly established in Missouri constitutional law that under Section 11(b) of Article X of the 1945 constitution and its predecessor, Section 11 of Article X of the 1875 constitution, the question of whether the constitutional limitation as to local tax levies has been exceeded must be determined not by looking at the particular levy alone, because, respondent contends the law is, the constitutional limitations do not mean each particular taxing authority can in all events levy to the full limit; rather the determination must be made by determining whether the levy in question, along with other levies for the same purposes, together exceed the limitation (respondent contending further that junior college districts and local school districts perform the same functions and purposes). In this connection, respondent’s main reliance is upon three cases, State ex rel. Hirni v. Missouri Pacific Railway Co., banc, 123 Mo. 72, 27 S.W. 367; State ex rel. Burgess v. K. C., St. J. & C. B. R. Co., banc, 145 Mo. 596, 47 S.W. 500, and State ex rel. Conrad v. Piper, banc, 214 Mo. 439, 114 S.W. 1.

The Hirni case, decided in 1894, is the cornerstone of respondent’s position. There it appeared that Bates County was under township organization, as authorized by the Township Organization Act, approved March 24, 1873, Laws of Missouri, 1873, p. 94. For the years 1889 and 1890, in addition to a county tax of 50 cents on the $100 valuation levied by the county court for county purposes, the court also levied an additional tax of 20 cents on the $100, called a township tax, as authorized by the then statutes. This tax was to meet township expenses and for roads and bridges. Defendant railroad paid the county tax, but refused to pay the township tax, for which suit was brought by the collector. Plaintiff recovered judgment in the trial court, which was reversed outright on appeal, on the ground that the county in levying the tax sued for in excess of 40 cents on the $100 exceeded its power, under the 1875 constitution, which limited the rate of tax for county purposes in this size county to 40 cents on the $100.

The court pointed out that townships were first organized on a corporate basis in Missouri in 1872; that “The autonomy of the county government was not disintegrated or destroyed thereby. Some of its powers, duties, and burdens were simply distributed to its townships”; that townships were created “simply as integral parts of a county exercising a part of the function of the county government”, that they “existed only for the purpose of county government”; that at the time of the adoption of the 1875 constitution, “[t]he idea of a township as a separate and independent municipal corporation, with power to levy taxes, had no place in the public mind” (27 S.W. l.c. 368).

In considering the limitations imposed by Section 11 of Article X, 1875 constitution, on tax rates for county purposes, the court first then said that all taxes for county purposes, “it matters not by whom or how levied, must be within the limits of the rates therein fixed” and since the purposes for which the township tax was levied were within the class of county purposes the same limitation must apply (27 S.W. l.c. 369).

The court said further (27 S.W. l.c. 370):

“ * * * We fail to discover anywhere in the language of the constitution an intention to make any distinction between counties that might adopt township organization, and those that remained under their original county organization, as to the rate of taxation that should be allowed to be levied in each for governmental purposes. No reason can be given why any such distinction should be made. The exigencies of each class are the same, and the same reasons exist for a limitation upon the taxing power to meet them in the one case as in the other. The mere change of the mode of administering county government does not and cannot change the purpose for which taxes are raised to conduct that government, and, as the purpose remains the same in each, so the limitations must be the same in each. This must be so, or the framers of our constitution have wrought in vain to limit the expenses of county government, and their whole legislation on this subject may be set at naught. For to defeat it entirely it will only be necessary for all the counties of the state to adopt township organization, and the legislature may then authorize them, in addition to the taxes allowed by the constitution for county purposes, to levy township taxes ad libitum * * * ff

The court goes on to say that the limitation in the constitution “is not upon the authorities levying the tax, but upon the purposes for which the taxes are to be levied, and with respect to revenue. Townships in Missouri, under its constitution, cannot stand on the same plane with counties, cities, towns, and school districts as tax-levying municipalities * * * ” (27 S.W. l.c. 371).

The court pointed out that under the township organization provsisions of the 1875 constitution, Section 8, Article IX, only the mode by which the revenue was to be collected was dispensed with where the constitutional provisions for the management of county affairs conflicted with the general law for township organization; that the limitations imposed by the constitution upon the revenue to be raised for any purpose were not thereby affected (27 S.W. l.c. 370). The court also pointed out that “The revenue remains the same after as before township organization, the purposes for which it is raised are the same, and the limitations must be the same * * *” (27 S.W. l.c. 371).

Does the Hirni decision require us to uphold respondent’s position ? No, because:

1. The Hirni decision leans heaviest on the determination made by the court that the purposes of the township tax and the county tax were the same — county purposes. The only authorized purposes for local taxes in the 1875 constitution were county, city, town and school purposes. The township tax in question was for county purposes ; therefore when the county exhausted its county limit it could not authorize any further tax in the guise of a township tax also for county purposes. Here, in our opinion, the attempted analogy between the Hirni case and the case before us breaks down. It cannot be realistically stated that the purposes of the local school district tax and the junior college district tax are the same in the sense that the Hirni opinion regarded the township tax and the county tax to be for the same purposes. The local school district levy is to educate in the elementary, junior high, and high school grades. The junior college district is for those who have completed an approved high school course. This is all education, it is true, but the purposes and exigencies are different. While the extremes are greater in the example about to be used, it can be said literally that both a kindergarten and a modern graduate school are educational institutions, but it is clear to all that the purposes are quite different.

2. The Hirni opinion twice stated that townships as independent, tax-levying powers for governmental purposes were unknown to Missourians in 1875. Townships were not considered political subdivisions.

The court pointed out that Section 8, Article IX, of the 1875 constitution made it clear that townships “cannot stand on the same plane with counties, cities, towns and school districts as tax-levying municipalities” (27 S.W. l.c. 368, 370). Here, however, we are dealing with school districts, which have historically been regarded in Missouri as independent, tax-levying powers and were so treated in the 1875 constitution.

3. In the Hirni case the court also said the revenue remained the same in the county after as before township organization. Here, however, the revenue does not remain the same. The junior college district is authorized to be, and is in the case before us, much larger than the area covered by the local school district. In Hirni the township was within the county. Here the local school districts are within the junior college district.

Our conclusion is, therefore, that the Hirni case and the other two cases which followed it, cited by respondent, do not require us to uphold respondent’s position in the case before us.

Respondent also contends that the limitation contained in Section 10(a), Article X of the 1945 constitution prevents the junior college district tax. But this section refers to and prohibits the matter of a tax by the state for the performance of local functions, State ex rel. Priest v. Gunn, (Mo.Sup. banc) 326 S.W.2d 314, 326, which is not what we have involved here. The proposed tax by the junior college district is not being imposed by the general assembly upon the inhabitants or property of the junior college district. We therefore overrule this contention.

Turning now to other aspects of the present case:

If the words “For school districts formed of cities and towns” and “For all other school districts” used in Section 11(b), Article X, mean for school districts collectively as respondent, in effect, contends, these would be some of the consequences:

1. Here the junior college district overlaps several different public school districts. Obviously each one of these districts will not have the same tax rate. If the junior college district can only levy to that amount remaining after the individual public school district levy for the area is subtracted from the limit, then the junior college district would be levying a different tax rate in the various public school districts making up the junior college district and this would be violative of Section 3, Article X, of the 1945 constitution requiring uniformity upon the same class of subjects within the territorial limits of the taxing authority.

2. If many of the local school districts levied to the limit before the junior college district, the junior college district might be without tax revenues and unable to function, because tax revenues constitute a substantial portion of the income of a junior college district.

3. Or if the junior college district succeeded in levying its maximum first, then the local school district would be deprived of substantial tax revenue.

4. There would be a never-ending race between the junior college district and the local school districts over which could obtain priority on tax levies. School boards would be faced with an impossible task in preparing their annual estimates of the amount of money to be raised by taxation for the ensuing school year.

A constitutional provision should never be given a construction which would work such confusion and mischief unless no other reasonable construction is possible, State ex rel. Moore v. Toberman, banc, 363 Mo. 245, 250 S.W.2d 701, 705; State ex rel. and to use of Jamison v. St. Louis-San Francisco R. Co., banc, 318 Mo. 285, 300 S.W. 274, 277.

Respondent’s answer to the above is that equally “forced or unnatural” results follow from overruling respondent’s position; that there is then nothing to prevent the legislature from providing for districts to be formed for each of the twelve grades of school, or the kindergarten, for example, with each levying up to either <$1.25 or 65 cents without voter approval. However, this assumes that the legislature and the courts would consider the term “school districts” as used in the constitution to mean something far different from what it has been considered to mean in the past and that there could be such a splintering for tax purposes, which matter is not before us and as to which we express no opinion. In any event, the possibility suggested by respondent is not comparable to what is before us, as creation of a junior college district to continue education beyond high school is the addition of a new program adding further education, not the splintering of an existing system into smaller units. The fact is there is nothing in the 1945 constitution prohibiting junior college districts from overlying local school districts, with a tax levy by each one, although historically there has not been a broad system of overlying school districts in Missouri. But times and needs change and present day educational demands are such that some overlapping of school districts is inevitable if education beyond the high school level is to keep up with the need and the demand.

There has always been some overlapping of geographical limits of counties and cities, so that many resident taxpayers pay two taxes in the same area. This was handled by the 1945 constitution spelling out the limits for the counties and the cities. The possibility of overlapping or overlying school districts and levies was present when the 1945 constitution was adopted, but nothing was done to prohibit each school district from levying taxes or to limit collectively the amount of overlying taxes. The language of Section 11(b) is not “For school districts formed of cities and towns — collectively a total of one dollar and twenty-five cents” or “For all other school districts collectively in the same county or area — a total of sixty-five cents”. The language simply is “For school districts formed of cities and towns” and “For all other school districts”. In our opinion this language does not prohibit the legislature from authorizing a junior college district overlying one or many local school districts to levy a separate tax as set forth in Sec. 178.870, supra, and we return to the basic principle mentioned earlier that the General Assembly, unless restrained by the constitution, is vested in its representative capacity with all the primary power of the people and that the legislature has the power to enact any law not prohibited by the federal or state constitution, see cases on page 3, supra. We therefore hold respondent was in error in holding that the 40 cents levy, when added to the other levies by other school districts in the respective counties and the junior college district, exceeds the constitutional limitation on levies by school districts prescribed by Section 11(b), Article X of the 1945 constitution. Whether the junior college district levy exceeds the constitutional limitation must be determined by the size of its levy alone.

Even if we were to conclude the language of Section 11(b) referred to above is ambiguous, it would not change the result which we reach in view of the construction which the legislature and the executive have placed on the same, in light of the rule that such construction, while not binding or conclusive, is entitled to weight, if the meaning of the constitutional provisions are doubtful, and should not be departed from unless manifestly erroneous, In re Matter of V_, (Mo.Sup. banc) 306 S.W.2d 461, 465; Gantt v. Brown, banc, 244 Mo. 271, 149 S.W. 644, 645-646. The legislature and the executive in enacting and approving the junior college district legislation authorized a junior college district to include one or more local school districts and to be “in addition to any other school districts existing in any portion of the area”, Secs. 178.770 and 178.790, RSMo 1965 Supp., V.A.M.S. Clearly they believed there was no constitutional requirement that the junior college district levy authorized by Sec. 178.870, supra, (without which the junior college district could not perform the important functions assigned to it) must be measured cumulatively with the local school district levies. We are unable to say that such construction is manifestly erroneous.

As to the respondent’s final contention the junior college district was illegally formed, such a challenge as here attempted cannot be maintained by county resident taxpayers by way of an injunction suit, but only by the state by quo warranto, as decided in State ex rel. Junior College District of Sedalia v. Barker, (Mo.Sup. banc) 418 S.W.2d 62.

The provisional rule is therefore made absolute.

All concur.

      . According to the 113th Report of the Public Schools of the State of Missouri, issued by the State Board of Education, as required by Sec. 160.090, RSMo 1959 (now Sec. 161.092, RSMo 1965 Supp., V.A.M.S.), in the school year 1961-62, there were seven junior colleges in the state and the total enrollment was 8,104. With the advent of the junior college district law most of the local junior colleges dropped out of existence or enlarged to form junior college districts and also several new junior college districts were formed. According to the 117th Report, the latest published report available, covering the 1965-66 school year, there were nine junior colleges in the state, seven of which were junior college district operations under the 1963 act, and the total junior college enrollment was 22,573. It is safe to assume the enrollment for 1966-67 was still higher.

      . Section 11(b) provides, in part, as follows:
      “Any tax imposed upon such property by municipalities, counties or school districts, for their respective purposes, shall not exceed the following annual rates:
      U ‡ * *
      “For school districts formed of cities and towns * * * — one dollar and twenty-five cents on the hundred dollars assessed valuation * * *
      “For all other school districts — sixty five cents on the hundred dollars assessed valuation.”

      . Section 10 (a) provides as follows:
      “Except as provided in this constitution, the general assembly shall not impose taxes upon counties or other political subdivisions or upon the inhabitants or property thereof for municipal, county or other corporate purposes.”

      . Under this act the county court could fix the number of townships in the county, except no new township could be established of less than twenty-four square miles. So it would appear there could be numerous townships in each county.

      . It was not until 1927, in Harrison and Mercer County Drainage Dist. v. Trail Creek Township, 317 Mo. 933, 297 S.W. 1, that a township was held to be a subdivision of the state.

      . One case is State ex rel. Burgess v. K. C., St. J. & C. B. R. Co., supra, again where the railroad paid the county tax, but not the road tax levied by the townships. The collector argued the road taxes were not levies “for county purposes”. The court held the case was governed by the Hirni decision, supra, and upheld the judgment of the circuit court holding the excess over the county levy void. The other case is State ex rel. Conrad v. Piper, supra, a suit to require the collector to give credit to various taxpayers who claimed credit on their county taxes for what they had paid the road overseer on their township road taxes. The court held such credit need not be given, because by statute, of the 40 cents which the county could levy, 80% was to be apportioned to the county and 20% to the township, that the township must exercise its taxing power in subordination to the authority of the county court to make the apportionment, and the township could not appropriate to itself part of the county’s share of the tax, as would be the effect if the collector had to give credit on the county tax assessment for the amounts paid to the road overseer. However, the case does not hold that the township did not have a right to levy a tax for road purposes. In addition, the court then proceeds to conclude the township board did not have any right to make a tax assessment at this particular time anyway, since the county did not adopt the township organization until the November 1906 election and thus there was no basis for a township assessment in time for a township tax assessment for 1907, so it is not entirely clear on what basis the ultimate affirmance of the trial court was reached.

      . According to the 117th Report of the Public Schools of the State of Missouri, supra, the local tax receipts for the seven junior college districts over the state for the 1965-66 school year were $6,-422,518.

      . To illustrate, the legislature, in 1917, enacted a law creating a colored consolidated high school district, authorizing a high school for colored children, with authority in the directors to raise money in the same manner as provided by law for city or town school districts, Laws of Missouri, 1917, p. 498, Sec. 11256, R.S.Mo.1919, repealed Laws of Missouri, 1957, p. 452. This statute contemplated a complete new school and involved an overlay of districts and taxes.


author: WELBORN, Commissioner.

text:
    Bobby Leon SKILES, by His Next Friend, Howard T. Skiles, Plaintiff-Appellant, v. Robert E. SCHLAKE, Defendant-Respondent.
    No. 52488.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Dec. 11, 1967.

      John W. Reid, II, of Schnapp, Graham & Reid, Fredericktown, for plaintiff-appellant.
    H. L. C. Weier, Dearing, Richeson, Weier & Roberts, Hillsboro, for defendant-respondent.
   WELBORN, Commissioner.

In this action for personal injuries to Bobby Leon Skiles, a pedestrian struck by an auto driven by defendant Robert E. Schlake, a jury returned a verdict in favor of the plaintiff for $75,000. The trial court subsequently sustained the defendant’s motion for a new trial on the specific grounds of error in one of the plaintiff’s verdict-directing instructions. The plaintiff has appealed from the order for a new trial.

The accident occurred on August 30, 1963, at around 9:30 P. M., Daylight Saving Time, on Route 21 in Old Mines. The weather was clear, the pavement dry. The defendant was driving a 1960 Chevrolet station wagon north on Route 21, with his wife and children as passengers. In the area involved, Route 21 is a 21' bituminous paved roadway with shoulders on either side, some 5 to 6 feet in width. As one proceeds north, near the southern edge of Old Mines, indicated by a sign proclaiming a 35 miles per hour speed limit, Route 21 curves slightly to the left. The highway is then comparatively straight and level until it again curves, to the right, some 750 feet to the north of the point of the first curve. On the northbound driver’s right in this area, some 400 feet from the south curve, is a grocery store and filling station. Beyond the store is a tavern. On the driver’s left is a drive-in theater. The southernmost entrance to the theater is 440 feet from the point of the south curve. A second entrance is 150 feet to the north of the first, or some 590 feet north of the curve.

Bobby Leon Skiles, then 15 years of age, had gone to the drive-in movie that evening with his brother, Roger, and Ronald Lowe, 12 years of age, and Donald Boyer, 15. At around 9:30, the four decided to leave the theater and go across the highway to buy candy at the store. The four left by the north entrance to the theater. The four boys stopped at a point some 6 feet from the west edge of the pavement to permit three to five southbound automobiles to pass. After the last of these vehicles had passed, Bobby Leon Skiles and Ronnie Lowe looked to the south, and, seeing no northbound traffic, started to cross the highway. Bobby said that he “trotted” across the roadway, with Ronnie a few steps behind him. When Ronnie was a step or two across the center line of the pavement, he was struck by the defendant’s automobile.

Bobby Leon, according to his testimony, was one to two feet on the shoulder on the east side of the pavement when he started to turn, and was struck by the defendant’s auto. Both Ronnie and Bobby testified that they at no time saw the defendant’s auto before it struck them.

The defendant testified that he was driving his auto at 30 miles per hour, and that, just as the fourth or fifth southbound vehicle had passed his auto, Bobby “hit the front of my car, and the young Lowe boy had run into the side of my door there.” He stated that he saw neither prior to the impact and that his auto was on the traveled portion of the highway at all times.

Plaintiff’s case was submitted on humanitarian negligence, charging failure to warn, swerve or slacken speed. Also submitted by Instruction No. 5 was ordinary negligence, as follows:

“Instruction No. 5.
“Your verdict must be for plaintiff if you believe:
“First, defendant either: failed to keep a careful lookout, or caused, allowed and permitted his vehicle to leave the travelled portion of the roadway, and
“Second, defendant’s conduct in any one or more of the respects submitted in paragraph first, was negligent, and
“Third, as a direct result of such negligence, the plaintiff sustained damage.
“Unless you believe plaintiff is not entitled to recover by'reason of Instruction Number 8.”

Upon defendant’s motion for new trial, the trial court concluded that it had misdirected the jury in giving Instruction No. 5 “in that said Instruction Number Five combined a hypothesis of primary and general negligence.” On this appeal, defendant has sought to support the trial court’s ruling on other grounds and also contends that plaintiff failed to make a submissible case on any theory.

Before considering the specific grounds of the trial court’s order, we will dispose of the defendant’s contention that, in any event, plaintiff made no submissible case on failure to maintain a lookout or on leaving the traveled portion of the highway. On the lookout proposition, defendant contends that there was no evidence from which the jury could find that, in the exercise of the highest degree of care, defendant could have seen plaintiff in time thereafter to have taken some effective precautionary action which would have avoided the injury to plaintiff. In his argument on this proposition, defendant is willing to assume that “plaintiff was 6 feet off the west side of the roadway when he started across the highway and that defendant could see the plaintiff when he began his motion toward the highway * * Such assumption necessarily admits that defendant could have seen plaintiff before he did. Whether his failure to do so was causally related to the injury would, in such circumstances, be for the jury. Lincoln v. Railway Express Agency, Inc., Mo.Sup., 359 S.W.2d 759, 768 [13]. See O’Neill v. Claypool, Mo.Sup., 341 S.W.2d 129, 135 [11,12].

As for failure to make a submissible case on leaving the traveled portion of the highway, defendant’s argument is based largely on the theory that plaintiff could not submit such a theory because of allegation and submission of specific negligence. However, that does not go to the question of sufficiency of the evidence to authorize submission of the issue. On that point, plaintiff himself testified that he was some one to two feet on the shoulder at the time that he was struck. This would clearly warrant the inference that defendant had driven off the roadway. Defendant’s argument that the weight of credible evidence was contrary to the plaintiff’s testimony affords no basis for our holding that there was no evidence upon which to base submission to the jury of the issue.

Concluding that the defendant’s argument of no submissible case on the issues submitted by Instruction No. 5 is without merit, we turn to the trial court’s ruling that the instruction was erroneous because it combined a submission of specific and general negligence.

Appellant argues that the charge of failure to drive on the traveled portion of the roadway is a charge of specific negligence, involving failure to observe the statutory rules of the road, specifically paragraph 2 of § 304.015, RSMo 1959, V.A.M.S., which provides: “Upon all public roads or highways of sufficient width a .vehicle shall be driven upon the right half of the roadway * * Appellant argues that this provision makes driving off the roadway on the right side of the highway a violation of the rules of the road just as it makes driving to the left of the center of the roadway. The obvious purpose of this statute is to change the common law of the road that one has a right to travel on either side of the highway when no one is coming in the opposite direction. 7 Am.Jur.2d, Automobiles and Highway Traffic, § 219, p. 768. The statute was not intended to create a duty toward a person in the position of the plaintiff here and affords no basis for a charge of negligence in this situation.

Appellant further argues that the submitted specification of negligence is analogous to that embodied in the rear-end collision doctrine, which, in Jones v. Central States Oil Co., 350 Mo. 91, 164 S.W.2d 914, was held not to involve a charge of general negligence.

Appellant has cited no case in which our courts have adopted such a view. In fact, the cases consider a charge of driving off the roadway one of general negligence, involving the res ipsa loquitur doctrine. Tabler v. Perry, 337 Mo. 154, 85 S.W.2d 471; Murray v. St. Louis Public Service Co., Mo.App., 201 S.W.2d 775. The author of Jones v. Central States Oil Co., Judge Hyde, took such a view of a charge of driving off the roadway in Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001. In that case, he stated (75 S.W.2d 1003):

“It will be noted the plaintiff’s only allegation of negligence is that defendant negligently ‘operated an automobile in such a manner as to run onto the sidewalk.’ This certainly does not charge specific negligence. It does not charge how defendant was negligent, as, for example, that he either carelessly or purposely drove too fast, or failed to keep a lookout, or drove on the wrong side of the street, or drove across the intersection when he did not have the right of way. It is indeed difficult to see how a more general charge of negligence could be stated. ‘In such a manner’ means no more than ‘in some careless manner.’ ”

There is a reasonable basis for concluding that a submission under the rear-end doctrine does involve a charge of specific negligence, but that a charge of driving off the roadway does not. As pointed out in Jones, the rear-end submission is essentially whether or not the defendant so carelessly guided his vehicle that he drove it against the rear end of plaintiff's automobile. 164 S.W.2d l. c. 918. Driving off the roadway, by and of itself, has no such specific connotation. In fact, drivers frequently leave the traveled portion of the roadway for valid reasons and with no injurious consequences. As pointed out in Harke, the injurious consequences are produced by some specific act of negligence, such as excessive speed or failure to keep a lookout, not inherently involved in the act of driving off the roadway.

Although appellant insists that he did not intend to rely upon res ipsa loquitur, but intended to charge specific negligence (admittedly in the cases above cited, the plaintiff who had charged running off the roadway was attempting to take advantage of the res ipsa doctrine), such intention cannot convert the issue submitted into one of specific negligence. The instruction did combine specific and general negligence. The trial court properly concluded that the giving of the instruction was error. State ex rel. Burger v. Trimble, 331 Mo. 748, 55 S.W.2d 422, 424 [3]; Ficken v. Hopkins, Mo.Sup., 389 S.W.2d 193, 200 [14]; Gumm v. Herman, Mo.App., 400 S.W.2d 447, 450-451; Harris v. Mound City Yellow Cab Company, Mo.App., 367 S.W.2d 43, 51 [4]; Watson v. Long, Mo.App., 221 S.W.2d 967, 969 [1].

Appellant suggests that the “strict waiver” rule which prevents reliance upon res ipsa by a pleader of specific negligence should no longer be followed, citing an annotation, 2 A.L.R.3rd 1335, “MODERN TRENDS AS TO PLEADING A PARTICULAR CAUSE OF INJURY OR ACT OF NEGLIGENCE AS WAIVING OR BARRING THE RIGHT TO RELY ON RES IPSA LOQUITUR.” However, the problem here is not one of waiver, but is one of combining a submission of general and specific negligence as to a particular act. See Marquardt v. Kansas City Southern Railway Co., Mo.Sup., 358 S.W.2d 49, 54-55 [4, 5-, 6], 2 A.L.R.3d 1311.

In view of the error in Instruction No. 5, the trial court’s order granting a new trial must be affirmed. We note, however, another ground urged by respondent in support of the new trial order, inasmuch as the question may recur upon a new trial.

The plaintiff offered as an expert witness an engineer who had prepared a plat of the accident scene and who testified as to various matters of sight distance, stopping distances, etc. This witness testified that the time required for the plaintiff to go from the point 6 feet east of the roadway to the point where he was struck was 31/⅞ seconds. The witness testified that this computation was based upon a visit to the scene with the plaintiff; that a young boy then crossed the highway and that plaintiff stated that he crossed at the speed at which that boy traveled; that the boy’s crossing time was then recorded at 3½ seconds arid the witness used that as the time for plaintiff’s crossing.

The defendant objected to the witness’s testimony on the grounds that it was based upon an extra-judicial, hearsay statement of plaintiff and was improper. The plaintiff here defends the testimony on the grounds that an actual experiment afforded a better basis for ascertaining the speed of a “jog” or “trot” than an estimate on the part of the witness and on the further grounds that the plaintiff’s witnesses all testified that the plaintiff “jogged” or “trotted” across the highway, thereby verifying the witness’s testimony.

The speed at which the plaintiff crossed the highway was a vital issue in this case. Although plaintiff and his witnesses testified that plaintiff “jogged” or “trotted” across the highway, defendant had an eyewitness who testified that plaintiff ran across the highway. Such testimony was, of course, consistent with defendant’s testimony that plaintiff suddenly appeared in front of his auto before he had any opportunity to avoid the accident.

The testimony of the plaintiff’s witness as to plaintiff’s crossing time was not presented as opinion evidence. It purported to establish the actual time. Obviously it must have been based primarily upon plaintiff’s extra-judicial, self-serving statement to the witness that he was traveling at the same rate of speed as did the boy in the test. Thus the testimony of the witness was based upon hearsay and was not admissible. Locke Distributing Co. v. Hartford Accident & Indemnity Co., Mo.App., 407 S.W.2d 658, 670-671 [4, 5], The fact that the witness testified that the boy in the test “jogged” and that the plaintiff subsequently testified that he “jogged” does not eliminate the prejudicial effect of the testimony objected to. This is not a case of the witness’s merely repeating what another witness, who also testified, had said, as was the case in Jefferson v. Biggar, Mo., 416 S.W.2d 933, relied upon by plaintiff. Here, the witness testified to matters based upon the out-of-court statement, and this he cannot properly do.

If the witness can show that by observation or otherwise, he can fix reasonably the speed at which a person would “jog” or “trot,” there would be no objection to his doing so and basing testimony upon such knowledge. He may not, however, attempt to establish the actual rate of the plaintiff’s movement in the manner here followed.

Defendant advanced other matters in support of the trial court’s order which we need not consider, inasmuch as the matters involved may not recur on a new trial. Defendant has also urged that plaintiff’s humanitarian submission was not supported by the evidence. Whether or not plaintiff will again submit on the humanitarian doctrine on retrial remains to be seen. No good purpose would be served by passing on the question, based upon the evidence on the first trial.

The order of the trial court is affirmed and the cause remanded for a new trial.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

SEILER and STORCKMAN, JJ., and MORGAN, Sp. J., concur.

HENLEY, P. J., not sitting.