author: EAGER, Chief Justice.

text:
    DUBINSKY BROTHERS, INC., a corporation, doing business as Esquire Theatre, Respondent, v. INDUSTRIAL COMMISSION OF MISSOURI, by and through its Members, June R. Rose, R. W. Atkeson, and Charles E. Cates, Division of Employment Security of Missouri, by and through its Director, Gordon P. Weir, Appellants, Kenneth G. Siemers, Defendant.
    No. 50099.
    Supreme Court of Missouri, In Banc.
    Dec. 9, 1963.

      George Schwartz, Jefferson City, for appellant Division of Employment Security.
    Lloyd G. Poole, Jefferson City, for appellant Industrial Commission.
    Strom & Strom, Elmer A. Strom, Stephen E. Strom, Cape Girardeau, for respondent.
   EAGER, Chief Justice.

This case was transferred here by the St. Louis Court of Appeals, one judge deeming its opinion to be contrary to an opinion of this Court. The opinion of the Court of Appeals appears at 365 S.W.2d 275. The case is one involving a judicial review of proceedings under the Employment Security Law, Ch. 288, RSMo 1959, V.A.M.S. One Kenneth Siemers filed two claims for unemployment benefits; both were allowed by the deputy (§ 288.070, subd. 2) and by the Appeals Tribunal (§ 288.190). The employer, Dubinsky Bros., Inc., filed an application for review by the Industrial Commission (§ 288.200) which was denied. It then filed its Petition for Review in the Court of Common Pleas of Cape Girardeau County, in accordance with § 288.210, naming the Industrial Commission, the Division of Employment Security and the claimant as defendants. The Commission and the Division answered and contested the review; the claimant did not appear. The Court reversed the prior orders, adjudged that the claimant was not entitled to benefits on either claim, and ordered that if he had been paid, restitution should be made. It assessed the costs against the Commission, the Division, and the claimant. Those two agencies appealed. The claimant did not appeal, not having appeared in the reviewing Court.

The facts are stated in the opinion of the Court of Appeals and we refer thereto for many details. For the convenience of the reader, we state enough facts here to outline the principal issues. The employer owned and operated the Esquire Theatre in Cape Girardeau; it regularly employed two projectionists who belonged to Local 700 of the International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and Canada (which we shall designate as the “Union.”) From 1947 to September, 1958, the theatre operated on fourteen shifts, two each day for seven days, — 1:00 p. m. — 6:00 p. m. and 6:00 p. m. — 11:00 p. m. The regular projectionists were one Johnson and one Spalding. Under the Union contract the theatre agreed to employ only operators “supplied by the party of the second part” (Union) and it in turn agreed to furnish competent operators; the contract also fixed the operating hours and the allowance of vacations with pay. Johnson, Spalding and Siemers were all members of the Union, though Siemers joined much later than the other two. Until 1956 Johnson and Spalding each worked seven shifts per week, thus splitting the work equally. In 1956 Johnson (the senior projectionist in the Local), who held an outside daytime job, decided to cut down his operating hours, and arranged through the Union to get a substitute for two of his shifts; the Union sent out Siemers, to whom the employer had no objection, and who was also working part time at the Broadway Theatre. Siemers continued working these two shifts until the latter part of September, 1958, when the employer (and the Broadway Theatre also) announced a cut in its schedules, eliminating all matinees except on Saturdays and Sundays, and cutting the total work shifts to nine. Thereupon at a Union meeting it was decided that Johnson and Spalding would thereafter split the work at the Esquire fifty-fifty, and that Siemers would be allotted two shifts at the Broadway Theatre, but would no longer work at the Esquire. Siemers participated in this meeting and made no protest. Johnson promptly resumed his full allotted work at the Esquire. The employer did not participate in these arrangements but accepted them. In his testimony, Siemers admitted that the Union was his agent and also admitted the handling of these assignments as we have related them. He was the “low man” in seniority. The evidence fully established the proposition that the employer had no right to select its employees, but only to object if an incompetent man was sent; also, that the Union operated on a seniority basis in making work assignments. Thus Johnson had the right at any time to take back the two shifts which he had permitted Siemers to work. The nature and cause of Siemer’s cessation of work on or about September 27, 1958, are the essential questions here.

The second claim, very inconsiderable but nevertheless present for decision, arose from another cessation of work by Siemers at the Esquire Theatre after he had been sent by the Union to take the places, respectively, of Johnson and Spalding during their vacations in June, 1959. He knew when he went there that the work was for that period only, and that he was acting solely as a replacement for each man, successively. Siemers received no severance pay on any of the occasions mentioned, nor was he notified by the employer in any such case that his work had terminated. In other words, these changes were arranged entirely by the employees and the Union, subject perhaps to a formal statement by the employer that it had no objections.

The record shows certain formalities in connection with the claims with which we are not particularly concerned. Thus, Siemers supposedly sought other work during the periods in question, continued to work part time at the other theatre, and reported his earnings. These things were considered in the allowances made. We gather that Siemers was promptly paid all such allowances, in view of § 288.070, subd. 4. The appellants state here that he has been paid.

The first question presented is whether or not these appellants (the Commission and the Division) had a right of appeal as “aggrieved ” parties. The Court of Appeals held that they did, but only because the judgment of the trial court assessed costs against them. However, the Court then held that the questions sought to be presented on the merits were moot, because the judgment of the trial court disallowing the claims was final as to the claimant, who had not appealed and in fact had never appeared in that court. Special Judge Clemens dissented, on motion for rehearing, obviously feeling that the appellants were entitled to a full appeal and to a hearing on the merits. The cases he cited will be dealt with later.

Section 288.210 provides for a judicial review; therein it is provided in part: “ * * * the director or any other party aggrieved thereby may secure judicial review thereof by commencing an action in the circuit court or court of common pleas * * *. An appeal may be taken from the decision of the circuit court or court of common pleas in the same manner, but not inconsistent with the provisions of this law as is provided in civil cases.”

Basically, the employer-respondent here claims that these appellants could not be “aggrieved,” in the sense intended by § 512.020, by a judgment which orders that compensation not be paid, Siemers not having appealed. The situation is novel, and no Missouri case actually in point has been cited. Appellants contend that they do have a full right of appeal because: (1) the judgment set aside their official acts; (2) they are necessary defendants in any review proceedings, § 288.210; (3) that they have a recognized, legal interest in all such proceedings, being charged with the administration of the Act and entrusted with the funds created, so that they are entitled to have disputed questions of interpretation resolved; and (4) that the payment of benefits as here, without a charge being permitted against the employers’ accounts, tends to deplete the general fund and make more likely an automatic increase in contributions.

The term “aggrieved” has been defined in Schumacher v. Schumacher, Mo.App., 223 S.W.2d 841, 845, as follows: “Generally speaking, a party or person is aggrieved by a judgment, order, or decree whenever it operates prejudicially and directly upon his property, pecuniary, or personal rights.” And see American Petroleum Exchange v. Public Service Commission, 238 Mo.App. 92, 176 S.W.2d 533. Thus, there are Missouri authorities which seemingly confine the right of appeal to those parties whose pecuniary or property or personal rights are directly affected. But those cases must be limited to the facts there involved. The appellants cite many cases as sustaining their view, generally; we do not find it necessary to cite or discuss all of them. The American Petroleum Exchange opinion was discussed by this Court in State ex rel. Consumers Service Company v. Public Service Commission, 352 Mo. 905, 180 S.W.2d 40, at loc. cit. 44, where the court said (quoting) in part: “ ‘Under the statute respecting' the right of appeal, we are of [the] opinion that the proper general rule to be applied is that any party to an action or proceeding having an interest recognized by law in the subject-matter, which interest is injuriously affected by the judgment, is a party aggrieved within its meaning.’ * * * We, therefore, think respondent’s contention (and the decision in the American Petroleum Company case) is based upon too narrow a view of the Public Service Commission Act.” The ensuing discussion there indicated that the ruling was based upon the peculiar status of proceedings before the Public Service Commission and of reviews therefrom. The quotation states a rule which may not be applicable in all cases. However, administrative agencies have been permitted to appeal in certain instances. In Pugh v. St. Louis Police Relief Ass’n, 237 Mo.App. 922, 179 S.W.2d 927, the association was held to be aggrieved and entitled to appeal as a trustee where the wife of a member sought in a divorce suit to sequester funds credited to her husband; there the sequestration had been allowed and the association had been released by order of the trial court; the individual did not appeal. The Court said, 179 S.W.2d loc. cit. 931: “Not only is appellant a ‘party’ to the suit, but it is directly affected by the decree of the court which contains orders specifically directed to appellant concerning the funds it holds, which orders it will be required to obey.” In Cunningham v. Leimkuehler, Mo.App., 276 S. W.2d 633, a Board of Adjustment (zoning) was allowed to appeal from a Circuit Court order reversing its prior decision, it having been a necessary party. See also: Shelley v. Missouri Commission for the Blind, 309 Mo. 612, 274 S.W. 688, 691-692; Gwaltney v. Missouri Commission for the Blind, 322 Mo. 44, 14 S.W.2d 988 (though the applicability of the last two cases is somewhat impaired here by the fact that the Commission appealed from the allowance of claims). In Carlton v. Division of Employment Security, Mo.App., 246 S.W.2d 388, one of the present appellants was permitted, without discussion, to appeal from the allowance of a claim for unemployment compensation. In Producers Produce Co. v. Industrial Commission, Mo.App., 281 S.W.2d 619, an appeal by the Industrial Commission was considered on the merits, without discussion, both in the Springfield Court of Appeals and later (reversed on other grounds) in this Court, as shown at 365 Mo. 996, 291 S.W.2d 166. There the circuit court had denied the claims, as here.

Both the appellants and Judge Clemens have relied rather strongly upon the case of Krisman v. Unemployment Compensation Commission, 351 Mo. 18, 171 S.W.2d 575. On its facts it has no applicability here, for there a supposed employer appealed from a judgment establishing his liability. It is perhaps applicable in a broad sense because of the following statements, 171 S.W.2d loc. cit. 578: “This Act provides a paternalistic system of protection for the employee, not only for his individual benefit, but for the general welfare. * * * The claimant is not the only person interested in this proceeding. The general public is interested in building up a fund to provide for involuntary unemployment and in seeing that all employers who rightfully belong under the Act are made to comply with its provisions.”

More specifically, the Courts of Nebraska, Washington and West Virginia have held, under very similar circumstances, that the Commission or Board standing in the place of our appellants, has a right of appeal. Woodmen of the World Life Ins. Soc. v. Olsen, Commissioner, 141 Neb. 12, 2 N.W.2d 353; In re Foy, 10 Wash.2d 317, 116 P.2d 545; State v. Hix, 132 W.Va. 516, 54 S.E.2d 198. These cases proceed generally upon the theory that, since the Commission is charged with the administration of the law and the protection of the fund, it has a direct interest in seeing that there is a uniform system of interpretation and application, that the funds and accounts be protected against erroneous or unwarranted decisions, and that this is true regardless of the status of the claimant, who may already have been paid and thus have lost ail interest.. Essentially, these cases hold that the Commission may he an “aggrieved” party, even where benefits to the claimant have been denied, and that on such an appeal it is representing the interests of the public, and not of the claimant. The case of In re Mitchell, 220 N.C. 65, 16 S.E.2d 476, cited by respondent, is directly contrary to those last cited. It holds, as our Court of Appeals did in effect, that since the claimant did not appear and appeal there was nothing on the merits before the appellate court; that case was apparently decided on the theory that the Commission was appealing as a sort of trustee for the claimant.

The right of the Commission and the Division to appeal may depend, to some extent, on the precise issues involved. We are certainly unwilling to say that they have no right of appeal except as representatives of the interest of the claimant. Nor do we hold that their right of appeal here depends solely upon the judgment for costs. We may assume that in accordance with § 288.070, subd. 4 the benefits allowed were actually paid following the action of the Appeals Tribunal. These would normally be charged to the accounts of claimant’s base period employers under the Act. Section 288.100. However, when an allowance of benefits is reversed on review “no employers’ account shall be charged with benefits so paid.” Section 288.070, subd. 4. Thus, if appellants are not permitted an appeal, or if the trial court’s judgment is affirmed, the benefits already paid (subject only to restitution, — a faint hope) would necessarily be charged to the general fund, depleting it pro rata. The Nebraska case discussed above noted this as one basis for the right of appeal; while Nebraska has a so-called “pooled” account, we do not see that this makes any essential difference. All must have a general fund of some sort. And see, also, State v. Hatcher, W.Va., 131 S.E.2d 172, 174. We hold that these appellants do have that kind of direct interest which gives to them an independent right of appeal.

We thus reach the merits of this controversy, — a point not reached by the Court of Appeals. The parties concede that there is little applicable law. In June, 1960, our Springfield Court of Appeals decided the case of Kilgore v. Industrial Commission, Mo.App., 337 S.W.2d 91, 90 A.L.R.2d 825; this opinion was filed after the decision of the Appeals Tribunal in our case but well before the judgment of the trial court; it is the principal Missouri decision for discussion. There the same union contract was involved and the persons concerned were moving picture machine operators. Operator R had long worked seven night shifts per week for the employer in question ; he wanted relief for one night a week and the union sent out the claimant K, who continued to work that one shift for approximately five months; at that time R decided to take the shift back, so notified K, and resumed the full work; this he was entitled to do under the union’s uniform recognition of seniority, and K made no objection. K did, however, file his claim for unemployment compensation. The ultimate question involved was whether K had “left his work voluntarily without good cause attributable to his work or to his employer * * Section 288.050, RSMo 1949, V.A.M.S. It was admitted that these work changes were all handled through the business agent of the local. The Industrial Commission, through its various steps, denied compensation. The Circuit Court reversed, holding that the findings were not supported by competent and substantial evidence and that the Union was the agent of the employer. The Commission, the Division and the employer appealed. After discussing the Minnesota case of Anson v. Fisher Amusement Corp., (1958), 254 Minn. 93, 93 N.W.2d 815, and certain other authorities, the Court of Appeals held: that the Union had the sole right to furnish employees; that K was sent solely as a relief man to work when R wanted to lay off, and that K recognized this; that the Union was the agent of the claimant (and its other members) and when it permitted R to resume the work and “withheld” K’s services, the latter must be deemed to have voluntarily left his work. The Court expressly rejected the holding of the trial court that the employer had delegated to the Union the right to select its employees, and had thereby made the Union its agent. In conclusion, the Court held that the findings of the Commission were supported by competent and substantial evidence, and that they could reasonably have been made. We are not concerned here with the Court’s references to different inferences which may be drawn from a witness’ testimony, nor with the concurring opinion of Judge Ruark on that subject; as we see the record in our case, there are no divergent inferences to be drawn from the testimony of the claimant or of any other witness on any essential issue.

We agree with the conclusions stated in the Kilgore opinion, and we hold that it is applicable here. Appellants say that it should not be applicable because in our case, the employer reduced the total number of work shifts from fourteen to nine, and that this was the cause of Sie-mers’ termination. But here, as in Kilgore, the Union did all the selecting and assigning; the work was considered by it as a two-man job, both before and after the reduction; while the reduction may have been the immediate occasion for Johnson’s decision to take his full half of the work, the termination of Siemers was nevertheless directly caused by the Union’s decision (and in a meeting where Siemers participated) on the work assignments. In Kil-gore the trial court had held that the job had, at least in part, become a two-man job when the claimant K took over one shift. The decision of the Court of Appeals necessarily reversed that holding. We think that the same principle is applicable here, despite the reduction in shifts, for the Esquire work was never considered to be a three-man job because Siemers took over two shifts. He continued to be purely a relief man, and he was relieved when Johnson decided to come back.

The case of Anson v. Fisher Amusement Corporation, 254 Minn. 93, 93 N.W.2d 815, and to a considerable extent the cases there cited support our decision. In Anson, supra, the Court said at 93 N.W.2d loc. cit. 819: “If the act of employment separation was performed by him directly of his own free will, or indirectly by his act of vesting in another discretionary authority to act in his behalf, the ultimate resulting act is a voluntary one which disqualifies him for compensation. This is likewise true when an employee acts directly in obedience to a representative control which, by his own choice, he has vested in another as his agent.

“[4, 5] No authority need be cited for the statement that a labor union does not contract as an agent of the employer. It is equally clear that a union is the agent of its members.” And see, generally, as asserting the agency of a union for its individual members, Hellesen v. Knaus Truck Lines, Inc., Mo., 370 S.W.2d 341. Appellants cite the case of Kentucky Unemployment Insurance Commission v. American National Bank & Trust Co., Ky., 367 S.W.2d 260, as holding that one who takes a temporary job or one for a specified period, does not leave the employment voluntarily when the job is at an end. The opinion was based upon the fact that the job itself had entirely ceased, and there was not, as here, the element of union asssignments to continuing work or jobs. We are not persuaded to a different view by that case.

It seems strange that in the Kilgore case the Commission and Division appealed from a circuit court judgment reversing the Commission and allowing compensation, whereas here they appeal from a judgment reversing and disallowing compensation. Basically, the same questions are involved (particularly the agency of the Union— whether for the employee or the employer) and the respective positions of the appellants seem wholly inconsistent. If it is claimed that the reduction here of five shifts by the employer creates the distinction, we have already ruled otherwise.

In the usual case of this nature the appellate court merely decides whether the findings of the Commission are supported by competent and substantial evidence upon the whole record, § 288.210, and whether they were authorized by law. Mo.Const. Art. 5, § 22, V.A.M.S. Here, however, there was no conflict in the evidence on any material issue, and no conflicting inferences to be drawn. The question became solely one of law, and the trial court correctly decided the issue as to both claims.

Appellants insist that the trial court had no power to order restitution of the payments made to the claimant. The employer says that they have no standing to make that contention, not having filed a motion for a new trial. In Seabaugh’s Dependents v. Garver Lumber Mfg. Co., Banc, 355 Mo. 1153, 200 S.W.2d 55 (supplemental opinion), the Court held in an appeal from a judgment of the Circuit Court in a Workmen’s Compensation matter no motion for new trial was necessary in order to preserve questions of the sufficiency of the evidence. The same principle is applicable in appeals from judgments rendered in review of other administrative agencies and departments, for the reasons stated in Sea-baugh. While the exact question here is of a slightly different complexion, it does involve the kind and scope of the judgment to be rendered, as a matter of law and on un-controverted evidence, in a matter tried to the court. The question lies within the principle of Seabaugh, and a motion for new trial was not necessary.

Section 288.070, subd. 4 provides for the payment of benefits upon affirmance by the appeals tribunal; so far as we find, the Act does not provide for restitution. That section goes on to provide that if the decision is finally reversed, no employer’s account shall be charged. The claim here will not be paid from the employer’s money (§ 288.070, subd. 4), but the amount will now remain charged to the general fund. The specific order for restitution also seems out of harmony with the scope of review provided in § 288.210. That portion of the Trial Court’s judgment ordering restitution to the “Plaintiff-Appellant” (respondent here) by credit or reimbursement, should be eliminated.

We note also that the costs were taxed against the “Defendants-Respondents” (appellants here and the claimant). We agree with the Court of Appeals (365 S.W.2d loc. cit. 279) that costs may not be taxed against the Commission and the Division, since they are representatives of the State. Hartwig-Dischinger Realty Co. v. Unemployment Compensation Commission, Banc, 350 Mo. 690, 168 S.W.2d 78. The judgment should be modified in the two respects just noted; otherwise, it is affirmed as to both claims.

All concur.

      2. To which revision all statutory citations will refer, since no changes material here have been enacted since the 1949 revision.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    UNION ELECTRIC COMPANY, a Corporation, Appellant, v. M. D. MAGARY, d/b/a M. D. Magary Construction Company, and Chester Watters, Respondents.
    No. 49933.
    Supreme Court of Missouri, Division No. 1.
    Dec. 9, 1963.

      William H. Ferrell, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for appellant.
    Evans & Dixon, Wm. W. Evans, John F. Evans, St. Louis, for respondent.
   HOUSER, Commissioner.

Claim of indemnity by an electric company against a contractor for $100,000 paid by the electric company to an employee of the contractor for damages for personal injuries sustained when he came in contact with the electric company’s 2,500 volt transmission line while performing duties of his emplojmient. Marvin Gillam, the employee, sued Union Electric for $250,000 damages, later increasing his prayer to $325,000, foi negligent infliction of injury. Union Electric obtained leave and filed a third-party petition against M. D. Magary, d/b/a Ma-gary Construction Company, and Magary’s superintendent, Chester Watters, for indemnity for the amount of any liability of Union Electric to Gillam, on the theory that Magary and Watters were primarily liable. Before trial Union Electric paid Gillam $100,000 in settlement of his suit. Union Electric filed an amended third-party petition alleging the settlement and payment. Third-party defendant Magary filed a motion for summary judgment, one ground of which was that under the law and the evidence Union Electric is not entitled to recover against Magary. Third-party defendant Watters filed a motion for summary judgment on the ground that the amended third-party petition fails to state a claim upon which relief can be granted against Watters. These motions were sustained. Final judgment was entered for third-party defendants. From the judgment Union Electric has appealed.

From the amended third-party petition, affidavit, pleadings, exhibits, stipulation of counsel and evidence, the facts pertinent to the inquiry are these:

Magary contracted with Moll Grocery Company to paint the 40-foot smokestack of its incinerator and replace a spark arrester located at the top. The smokestack was located at the rear of Moll’s premises at 1717 South Brentwood Boulevard in St. Louis County. Union Electric owned and maintained a power line at the rear of the grocery store. Built in 1943 on a 10-foot easement, and rebuilt in 1954, the electric facilities consisted of a bare, uninsulated 3-wire electrical circuit strung between porcelain insulators affixed to wooden cross-arms attached to upright wooden poles. Each wire carried 2,500 volts of electricity. A transformer was attached to the south side of the pole closest to the grocery store. That pole was 16 feet northwest of the incinerator. Wires ran from the transformer to the back of the grocery store, which was 26 feet directly east of the transformer. The 2,500 volt line nearest the smokestack hung a distance of 6 feet 8 inches horizontally west of the smokestack, at an elevation of 32 feet 9 inches above ground.

Superintendent Watters, who had full authority to act on behalf of Magary, inspected the job site to gauge the work to be done and decide on the method by which it should be accomplished. He observed the electric wires and poles but either did not pay any attention to whether they were “electric” or, not considering them to be electric wires, thought they were telephone wires, having seen no warning signs on the poles. He considered it necessary to build a scaffold to get to the top of the smokestack to replace the spark arrester. He estimated that there was room for the scaffold to clear; that the distance between the scaffold and the closest wire would be “a couple of feet.” He rented sectional metal (aluminum) scaffolding and directed Gillam to erect the scaffold on the west side of the smokestack — the side nearest the electric wires. Gillam and a co-worker built the scaffold. The sections were 5x7 feet. They were erected with the 5-foot width toward the wire. There was a conflict in the testimony whether the scaffold could readily have been placed on the south side of the smokestack, out of danger of contact with the charged wires. According to an affidavit filed on behalf of Union Electric this was possible. According to witnesses for Magary it was not because of a tree, or bracing on the smokestack, or an alley. It was pointed out that the alley was on the east side. There was evidence that the tree was not in the way. At Watters’ direction Gillam attached a metal ladder on the west side of the scaffold nearest the charged wire. There was evidence from which it could be found that the ladder could as easily have been attached to either of the other sides of the scaffold.

The top of the completed scaffold was 33 feet and 4 inches above ground, 6 inches higher than the nearest charged wire. There was a clearance of 12 inches between the west side of the scaffold and the wire. While standing on the ladder, holding on with his hands, the back of Gillam’s neck came in contact with the wire, causing 2,500 volts of electrical current to be diverted to his body. He sustained severe neck and back burns and his hands and parts of his arms were burned off.

Union Electric was aware of and had knowledge of the existence of the incinerator and smokestack when it built its line in 1943 and when it rebuilt its facilities in 1954. It knew or must be charged with knowledge that it owned and maintained a bare 2,500-volt electric wire at this location; that this wire was 6 feet 8 inches horizontally from the smokestack; that the wire would probably cause serious injury to any one who contacted it. Union Electric concedes in its brief that it “constructively knew that in the maintenance of the smokestack someone at some time might be on a scaffolding or similar structure adjacent to it”; that Union Electric might constructively be charged with knowledge of this particular job, and that there were precautionary measures Union Electric could have taken, such as warning Gillam or installing “Salisburys” — rubber hosing which serves as effective insulation for short periods of time.

Prior to the accident Union Electric was not informed by Magary or anyone acting for him, or otherwise actually notified, of the plan to erect this scaffold. Had it been notified Union Electric, in accordance with established policy, would have covered its lines with Salisburys. Union Electric’s first knowledge came five hours after the accident, when Magary telephoned for assistance in order safely to remove the scaffolding. Union Electric then sent a line crew to the scene and covered the wires with Salisbury's to enable the work to be finished and the scaffolding removed.

Gillam recalls having been at the site the day before the accident, but does not remember seeing wires or poles, and recalls nothing on the date of the accident except that he picked up his co-worker early in the morning. He remembers that he was to do this job, but does not recall Watters’ instructions or how in fact he did it.

The negligence with which Gillam charged Union Electric was fourfold: maintenance of uninsulated transmission wires; failure to provide any shield or guard at or near the wires so as to prevent contact with persons working in close proximity; failure to warn plaintiff of the presence and location of the wires and that they were uninsulated ; causing and permitting uninsulated and unguarded wires to be and remain in close proximity to the smokestack when it knew, actually or constructively, that in the care and maintenance of the smokestack workmen would be in close proximity to the wires.

The original third-party petition attributed Gillam’s injuries to the “gross, active and primary negligence” of Watters, acting as the authorized superintendent for Magary, in instructing and directing Gillam to erect the scaffold and ladder on the west side of the smokestack, adjacent to the 2,500-volt wire, with knowledge, actual or constructive, that Gillam would probably come in contact with the wire and sustain injuries. Magary was charged with Wat-ters’ negligence, as principal. Union Electric denied its own negligence but alleged that if it should be held liable to Gillam its negligence was passive and secondary and that third-party defendants would be liable over to Union Electric for the amount of such recovery.

Following the settlement and dismissal of Gillam’s suit Union Electric filed its first amended third-party petition, realleging the same preliminary facts, adding the facts relating to the agreement between Union Electric and Gillam to settle his claim for $100,000, which was alleged to be a reasonable settlement, and the dismissal of Gillam’s claim. Three additional charges of “gross, active and primary” negligence were made against third-party defendants: failure to provide Gillam with a safe place to work, failure to notify Union Electric of the plan to do work in the location of the transmission line, and failure to warn and advise Gillam that they had taken no action to make his work area safe. Union Electric alleged that it had only constructive knowledge of the possibility of work on or near the smokestack and “is chargeable merely with inactive, passive and secondary negligence,” which it stated either existed in fact or was a legally submissible issue. Five reasons were alleged to justify Union Electric’s failure to call upon Magary or Watters to defend the Gillam claim against Union Electric. Union Electric prayed for indemnity in the sum of $100,000.

We have jurisdiction of this appeal because the amount in dispute is $100,000.

Union Electric claims the right to indemnity under several different theories which have been applied by various authorities.

First, it relies upon the rule allowing indemnity against a party guilty of active and primary negligence in favor of one whose negligence is passive and secondary. It claims that Watters and Magary created a dangerous condition by active negligence amounting to reckless misconduct, whereas its own negligence was passive, based upon constructive (not actual) knowledge of the dangerous condition.

Second, it advances the rule formulated in § 95 of the Restatement of the Law of Restitution: “Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.” It claims that the dangerous condition was caused by the misconduct of Watters and Magary and that Union Electric, having constructive knowledge of the situation, is liable only for failing to make it safe and is entitled to indemnity under this rule.

Third, it counts upon the rule of disproportionate duties, under which indemnity is said to be allowable to one whose duty of care owed and violated approaches the absolute, against one who violated only a duty to exercise ordinary care. It claims it was obliged to exercise the highest degree of care; that Magary and Watters owed Gil-lam only the duty to exercise ordinary care, and since this theory requires indemnity from those who fail to live up to the lesser standards of care, third-party defendants must indemnify Union Electric. The applicability of this test was expressly negatived in State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, 1. c. 508 [8], in cases where two tort-feasors “both have breached substantially equal duties owed the injured person, and have concurrently and jointly committed negligent acts of the some general character.”

Fourth, it proposes the “last clear chance” theory of indemnity stated in § 97 of the Restatement of the Law of Restitution : “A person whose negligent conduct combined with the reckless or intentionally wrongful conduct of another has resulted in injury for which both have become liable in tort to a third person is entitled to indemnity from the other for expenditures properly made in the discharge of such liability, if the other knew of the peril and could have averted the harm at a time when the negligent tortfeasor could not have done so.” It says that Gillam was injured through Magary’s and Watters’ reckless and shocking negligence; that third-party defendants knew of Gillam’s peril and could have prevented harm to him at a time when Union Electric could not have done so. The principle that the joint tort-feasor who had the last clear chance to avoid the casualty should indemnify the other has never been followed in this state, Johnson v. California Spray-Chemical Co., Mo.Sup., 362 S.W.2d 630, 635, and was expressly rejected in State ex rel. Siegel v. McLaughlin, supra.

The case before us is a claim for indemnity in toto, not for contribution merely. Third-party plaintiff and third-party defendants are nonrelated, i. e., there was no antecedent contractual or other special legal relationship between them. This is a claim for indemnity for a liability arising in tort.

In the majority of the Missouri cases permitting recovery of indemnity for a liability arising in tort the allowance has been made “ ‘in favor of one who is held responsible solely by imputation of law because of his relation to the actual wrongdoer * * *,’ ” McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., supra, Mo.Sup., 323 S.W.2d, 1. c. 793, “or in favor of one who has only a secondary duty as contrasted with that of the original and primary wrongdoer.” Crouch v. Tourtelot, Mo.Sup. (en banc, 1961), 350 S.W.2d 799, 806 [10]. In the Crouch case the Court quoted with approval this language from Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 371, 24 A.L.R.2d 319, also approved in State ex rel. Siegel v. McLaughlin, supra, Mo.App., 315 S.W.2d, 1. c. 507: “In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them ■owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is •only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other.” See General Principles of Recovery in Non-Contractual Indemnification, Comment, Missouri Law Review, (Spring 1963), Vol. 28, p. 308.

With these principles in mind we are firmly of the opinion that the first amended third-party petition does not state a claim upon which relief may be granted; that Union Electric is not entitled to indemnity against third-party defendants on any of the suggested theories, and that the circuit court properly sustained the motions for summary judgment and properly entered final judgment for third-party defendants, for the reason that Union Electric and Magary, through his superintendent Watters, were joint tort-feasors in pari delicto, all guilty of active, primary, concurrent negligence.

The pleadings and exhibits upon which this matter is submitted by agreement of the parties plainly reveal that the electric company built, operated and maintained a highly charged, uninsulated and potentially dangerous transmission line in close and dangerous proximity to a smokestack which it knew or should have known would require maintenance, in the course of which there was a reasonable and probable likelihood that workers on scaffolding would be injured by contact with the transmission line. The detailed facts make a case of active, continuing, primary negligence against Union Electric, which concedes that Gillam had a “submissible case of primary negligence” against it. Union Electric suggests that its amended third-party petition did not incorporate by reference or refer to Gillam’s initial or amended petitions, but as this matter is submitted Union Electric cannot escape and we may not ignore the charges of active, primary and specific negligence directed against it in Gillam’s original and amended petitions. Crouch v. Tourtelot, supra, Mo.Sup., 350 S.W.2d, 1. c. 804. Those charges must be considered in determining the nature and character of Union Electric’s negligence. Johnson v. California Spray-Chemical Co., Mo.Sup., 362 S.W.2d 630, 633; State ex rel. Siegel v. McLaughlin, supra, Mo.App., 315 S.W.2d, 1. c. 503. Gillam’s petitions underlie the claim of indemnity. They state a case of active, primary negligence against Union Electric and not a case of inactive, passive, constructive or secondary negligence, as claimed. Union Electric’s liability to Gillam is the consequence of its own active, primary negligence. Union Electric may not ignore its own participation in the chain of events leading to this casualty and cast the entire burden upon Magary and Watters under the claim of passivity and secondary liability. Crouch v. Tourtelot, supra, Mo.Sup., 350 S.W.2d, 1. c. 808.

Union Electric’s liability to Gillam does not arise by imputation of law out of some legal relationship or antecedent contract between Union Electric and Magary, because there was no such relationship between the parties.

Union Electric counts heavily upon Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., supra, as a case closely in point, and urges that the instant case is ruled by Payway; that the dangerous condition which resulted in Gillam’s injury was caused by the misconduct of Magary and Watters and that Union Electric, having constructive knowledge of the situation, is liable only for failing to make it safe. The instant case is to be distinguished from Payway on the same grounds and for the same reasons given in Crouch v. Tourtelot, supra, Mo.Sup., 3S0 S.W.2d, 1. c. 806, 807 [11], namely, that Union Electric’s negligence was active, and that Union Electric was charged with several specifications of negligence, infra, all of which involve independent action on its part and not merely “a failure to discover and correct the condition created by” the erection of the scaffold and ladder.

Union Electric’s active and primary negligence was not the sole negligence contributing to Gillam’s injury. Its negligence was joint and concurrent with that of Magary and Watters; it combined with the negligence of the latter to cause the injury, and as such was one of the direct and proximate causes of the injury. Magary’s act of negligence, through Wat-ters, would have been harmless but for Union Electric’s negligence. Union Electric negligently provided the highly charged, dangerous and deadly wire at a place where a workman might be expected to go. Magary and Watters negligently sent a workman to that place under circumstances in which contact with the wire was a probability. The negligence of Magary and Watters was active and primary. Union Electric created a dangerous condition, and Magary and Watters joined in its act “by making the danger effective as to plaintiff.” Crouch v. Tourtelot, supra, Mo.Sup., 350 S.W.2d, 1. c. 808. Union Electric and Magary, through Watters, “both participated, at the same instant, in the single act which caused the injury.” Hickman v. Union Electric Light & Power Co., Mo. Sup., 226 S.W. 570, 574. The negligence of each constituted an efficient cause without which the injury would not have occurred. Joint tort-feasors guilty of concurrent negligence, Union Electric and Magary and Watters acted in pari delicto. Where joint tort-feasors are in pari delicto neither is entitled to indemnity from the other. Johnson v. California Spray-Chemical Co., Mo.Sup., 362 S.W.2d 630, 633, [2],

Judgment is affirmed.

COIL and WELBORN, CC., concur.

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

All of the Judges concur.

      . See Kansas City Southern Ry. Co. v. Payway Feed Mills, Inc., Mo.Sup., 338 S.W.2d 1; Woods v. Juvenile Shoe Corp. of America, Mo.Sup., 361 S.W.2d 694.

      . See McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo.Sup., 323 S.W.2d 788; Barb v. Farmers Insurance Exchange, Mo.Sup., 281 S.W.2d 297.

      . See Indemnity between Negligent Tort-feasors: A Proposed Rationale, by E. Eugene Davis, 37 Iowa Law Review 617, at p. 546, et scq.

      . Under the third party procedure adopted by Union Electric it sought recovery under § 507.0S0, subd. 1., V.A.M.S., “for all * * * of the plaintiff’s [Gillam’s] claim against [it].”


author: EAGER, Judge.

text:
    Mrs. Erin REIS, Caroline C. Hoelzer, Paul Randall and Leo Lau, Appellants, v. The METROPOLITAN ST. LOUIS SEWER DISTRICT, Respondent.
    No. 49875.
    Supreme Court of Missouri, Division No. 2.
    Dec. 9, 1963.

      Charles M. Shaw, Clayton, for appellants.
    Thompson, Mitchell, Douglas & Neill, James M. Douglas, David F. Ulmer, W. Stanley Walch, St. Louis, for respondent.
   EAGER, Judge.

In this action to enjoin all further proceedings in connection with the proposed construction of a storm sewer, the trial court entered a summary judgment for the defendant. See Rule 74, V.A.M.R. The estimated immediate cost of these sewers is $650,000 and defendant has adopted a resolution finding that the improvement is in the public interest and that the work should proceed. Thus, the aggregate of the special assessments upon the class of persons and property which plaintiffs represent, and consequently the value of the relief to he granted or denied, will far exceed the sum of $15,000, and we have jurisdiction. Cooper v. School District of Kansas City, 362 Mo. 49, 239 S.W.2d 509. The area involved here is in the extreme southeastern part of St. Louis County in the Lemay neighborhood.

The facts which we relate are taken from an affidavit submitted by defendant and from the depositions of the four plaintiffs. We deal first with the affidavit of John H. Sears, Chief of the Subdistrict Development Department of defendant, to which was attached a copy of The Metropolitan St. Louis Sewer District Plan, as adopted on February 9, 1954. This plan provides: that the Board of Trustees is empowered to create subdistricts and to fix the boundaries thereof, either for sewers or drainage facilities; that no such ordinance shall become effective until three weeks after a public hearing is held, and that notice of such hearing shall be published at least three weeks before such hearing; that the Board may levy, assess and collect taxes on all taxable property within a district or subdistrict, and may fix, levy and collect special benefit assessments levied ratably by area upon such lots or parcels of ground as are benefited; that the Board shall adopt a resolution declaring the necessity of any such improvement; that the Board shall give adequate notice of a public hearing on all improvements to be paid for by special benefit assessments and on all others costing $7,500 or more; that such hearing shall be held not less than ten nor more than thirty days after the adoption of the resolution, and that thereafter the Board may determine that it is or is not in the public interest that such improvement be made.

The affidavit of Mr. Sears states,' in substance: that the matters stated are within his personal knowledge; that in May 1955, a petition was received from 34 residents in the area in question requesting action for the correction of flooding conditions; that in 1957 a contract was made by defendant for an engineering study and such a report was received; that further studies of boundaries were made by affiant; that a public hearing was called by defendant for February 29, 1960, on a proposal to create such a subdistrict and that notice thereof was published in the St. Louis Globe-Democrat on February 4, 1960; that such public hearing was held and a report thereof made by affiant to the Board; and that on March 31, 1960, the Board adopted Ordinance No. 383 establishing such a sub-district as “Subdistrict No. 89 (Loretta-Joplin)” as shown on a map attached to the affidavit; that on June 29, 1961, after another report from affiant, the Board considered the matter further and adopted Resolution No. 422 declaring the necessity of the construction of storm water improvements in that subdistrict, estimating the cost at $1,100,000, providing for payment by special benefit assessments and calling for a public hearing on July 18, 1961; that notice of such hearing was published in the St. Louis Post-Dispatch on July 7, 1961, notices thereof were posted at twelve places in the District on July 6, 1961, and notices were mailed to some of the residents; that such a hearing was held; that thereafter representatives of defendant, including the affiant, met informally on several occasions with some of the property owners to determine whether the proposed special assessments might be reduced; that affiant prepared a revised plan by which the immediate proposed construction would cost $650,000, with the system to be completed later from the proceeds of an annual ad valorem tax levy of from 25 cents to 30 cents per one hundred dollars valuation for a period of not to exceed twenty years; that such plan met with the approval of a majority of the property owners present at an informal meeting; that on October 30, 1961, affiant reported these developments to the Board and that the Board adopted its Resolution-No. 467 repealing the prior Resolution (No. 422), redetermining the necessity of “adequate major storm sewers” and estimating the cost at $650,000 to be paid for by special benefit assessments and providing for a public hearing on November 20, 1961; that notice of such hearing was published on November 9, 1961, in the St. Louis Post-Dispatch, notices were posted in seventeen locations in the subdistrict on said day, and written notices were mailed to those persons whose addresses were in defendant’s billing records; that such a hearing was held, all persons present were given an opportunity to be heard, and that people present did speak both pro and con; that a report of such hearing was filed and the Board, on December 7, 1961, adopted Resolution No. 474 finding and declaring that such improvement was in the public interest and that such improvements should proceed. On December 19, 1961, the present suit was filed.

Plaintiffs’ First Amended Petition (filed as a class action) was filed on January 31, 1962; defendant answered on March 6, 1962. On May 31, 1962, defendant filed its Motion for Summary Judgment pursuant to Rule 74.04 (with Mr. Sears’ affidavit attached as an exhibit) on the grounds that: the pleadings, the depositions on file, and the affidavit of Mr. Sears showed that there was “no genuine issue as to any material fact and that defendant is entitled to judgment in its favor as a matter of law.” In the meantime, on March 22, 1962, the depositions of the four plaintiffs had been taken by defendant’s counsel. On September 15, 1962, the Court sustained defendant’s motion and entered judgment for defendant and against all plaintiffs. After the overruling of a motion for rehearing asserting that there remained an issue of fact, plaintiffs filed notice of appeal. Before digesting further facts, we note that the amended petition charged (aside from formal allegations, including the intention to install the sewer) that no hearing of the plan to establish the subdis-trict had properly been held, that the proposal was not for the public good or general welfare, that it would work an undue hardship on the property owners, that defendant’s acts were oppressive and in excess of its jurisdiction, and that there would be no benefit to the property owners.

In the depositions of the four plaintiffs the following was developed, treating the evidence collectively: that in flash floods from five to seven homes are sometimes flooded, but that most of the water comes down Kingston Street which is a state highway and spills over on to private property ; that if the State would provide better drainage on the highway (which, it was claimed, had only a “little” drain) there would be no flooding; that there is occasional flooding at Broadway and Kingston, at Broadway and Ripa, and at Perrin and Arlee; that there have been times when cars and busses could not go through; that the cost of this sewer project would hurt a lot of people who could not afford to pay, such as old age pensioners, etc., and that some would lose everything; that the witnesses did not feel that the community needed the sewer and felt that its cost would be “oppressive”; that no public benefit would be derived from the plan; that there were three meetings and at one (at Notre Dame High School) there were sundry people present who did not live in the district; that one of the officials said at one meeting that “they were going to put them in whether we wanted them or not”; that various persons spoke in opposition to the project at the meetings, and that there were probably three hundred people at the third meeting; that the property owners had formed an organization and that its officers met with the officials; that some of these officers agreed to a revised plan of assessment at the rate of five cents per square foot (instead of the original eight cents) plus an added property assessment, but that many people were still dissatisfied; that the property owners were never asked at the meetings whether they wanted the sewer or not; that the planned diagonal course of the sewer would disrupt the community, and that, as proposed, the sewer is too large; that probably 1,500 people are in the group opposing the sewer. One plaintiff (Hoelzer) testified that her total cost (assessment and increased ad valorem tax) on each of two 125 x 360 foot lots would be about $3,000 and that the lots cost $9,000 and $9,500, respectively, in 1958 and 1959. It is conceded'by defendant that the proposed special assessments will be at the rate of five cents per square foot, plus the added ad valorem tax for the future completion of the project; defendant states in its brief that the largest assessment will be approximately $2,250 on each of the Hoelzer lots (which may readily be calculated), or approximately 25%'’of the supposed value, plus an anticipated total increase of $180 in the ad valorem taxes on each lot over a twenty-year period. This seems to be partially outside the record, but the precise figures are not, in our view, conclusive or highly material. No showing was made as to whether the storm sewer would add to the values of property in the area.

Appellants’ brief is ten and one-half pages in length; four pages consist of a quotation of the amended petition, and two pages of quotations from the depositions. The first point made is that the courts have the right to grant relief against the “arbitrary exercise of a discretionary power by the legislative body of a municipality.” There can be no doubt about that, as a general proposition of law. The second (and only other) point is that a summary judgment should not be rendered on any “issue triable by a jury or the Court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.” Under the point only our Rule is cited. This point is really not sufficient to demonstrate “why it is contended the court was wrong,” as required by Rule 83.05(e) but, in view of the existence here of a limited public interest, we pass to the merits. Appellants’ argument on this point consists of four short paragraphs. In substance, it is that “admitting the affidavit submitted * * * there remains an issue of fact * * that even if all the acts set out in the affidavit were completed the “decision could very well be oppressive * * and that “honorable means” do not justify an “oppressive end.” The concluding paragraph under this point (after quoting from the depositions of plaintiffs) is: “The appellants submit that assuming all the above testimony as true and duly considering the respondent’s affidavit, there remains an issue of fact, and the appellants are therefore, entitled to their day in court and entitled to be heard on the issue of whether or not the proposed act of the respondent amounts to an arbitrary exercise of respondent’s power and whether or not their actions are oppressive.” We thus gather that counsel’s sole claim is that the charges of excessive cost, lack of necessity, hardship, and oppression, as stated by the lay plaintiffs in their depositions, raise a genuine fact issue as to the existence of a supposed arbitrary exercise of power.

Our Rule 74.04 has not often been construed and indeed.it seems to have been used relatively little. The Rule provides in part, in 74.04(c) and (h), that “The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. Judgments sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. * * *

“In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.”

Since plaintiffs do not present here any deficiencies in the procedural steps and seemingly admit their sufficiency, we shall not concern ourselves with that question. One or more of the plaintiffs stated in the depositions that at one of the hearings a number of outsiders were present, more or less complicating the proceedings, but we find nothing in this to invalidate the hearing, as such. There was no testimony that the outsiders participated in the meeting. There is, of course, a presumption that ordinances have been validly enacted. Marks v. Bettendorf’s, Inc., Mo.App., 337 S.W.2d 585, 590.

Under Rule 74.04(a) the party moving for a summary judgment may file and serve supporting affidavits, as defendant did here; the adverse party may, under 74-04(c), serve opposing affidavits; these are then considered, along with the pleadings, depositions, and any admissions on file, to determine whether there remains any genuine issue of material fact. The answer here contains no admissions which would affect our question; its admissions are of formal matters and of the fact that defendant has proceeded to establish the sewer subdistrict, and that it proposes to install the storm sewers and to levy special assessments. Plaintiffs filed no opposing affidavits, but prior to the hearing on the motion for judgment defendant had taken and filed the depositions of the four plaintiffs. We may and do consider these as plaintiffs’ evidence in opposition to the motion and we assume that the trial court so considered them. The case has been briefed by defendant on that assumption.

In ruling such a motion the court must be convinced, as a matter of law, that there is no genuine issue of fact. The rule so provides. 74.04(c) and (h). And see: Orvis v. Brickman, 90 U.S.App.D.C. 266, 196 F.2d 762; Wilkinson v. Powell (CA 5), 149 F.2d 335; Gifford v. Travelers Protective Ass’n of America (CA 9), 153 F.2d 209. In Wilkinson, supra, the Court said, in part, loc. cit. 149 F.2d 336-337: “In Volume 3, Moore’s Federal Practice under the new Federal Rules, page 3174, the learned authors say: ‘The summary judgment procedure prescribed in Rule 56 is a procedural device for promptly disposing of actions in which there is no genuine issue as to any material fact. In many cases there is no genuine issue of fact, although such issue is raised by the formal pleadings. * * * “The very object of a motion for summary judgment is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may subject a suitor to the burden of a trial.” To attain this end, the rule permits a party to pierce the allegations of fact in the pleadings and to obtain relief by a summary judgment where facts set forth in detail in affidavits, depositions, and admissions on file show that there is no genuine issue of fact to be tried.’ * * * upon the trial of appel-lees’ motion, appellant’s failure to offer in evidence counter-affidavits or testimony of some kind to off-set the affidavits filed by appellees warranted the court below in finding that no genuine issue of a material fact existed.” Also, see, generally, the following Missouri cases: Ieppert v. John Hancock Mutual Life Ins. Co., Mo.App., 347 S.W.2d 436; Jacobson v. Vestal, Mo., 361 S.W.2d 677; Oakley v. Duerbeck Company, Mo., 366 S.W.2d 430; Swink v. Swink, Mo., 367 S.W.2d 575; Gruenewaelder v. Wintermann, Mo., 360 S.W.2d 678. The real, and only, question here is whether the depositions raise any genuine issue of fact.

Many Missouri cases recognize that local legislative bodies, such as municipal councils, sewer district boards, etc., are vested with a broad discretion which, absent an affirmative showing of fraud, oppression or arbitrary action, is not subject to review by the courts. Goodson v. City of Ferguson, Mo.App., 345 S.W.2d 381; Heman v. Schulte, 166 Mo. 409, 66 S.W. 163 [aff. 189 U.S. 507, 23 S.Ct. 852, 44 L.Ed. 922]; Giers Implement Corp. v. Investment Service, Mo., 235 S.W.2d 355; Granite Bituminous Paving Co. v. Fleming, 251 Mo. 210, 158 S.W. 4; Lansdown v. Kierns, 303 Mo. 75, 260 S.W. 88; City of Washington ex rel. Luth v. Stumpe, Mo.App., 83 S.W.2d 111; Standard Investment Co. v. Stephensmeier, Mo.App., 117 S.W.2d 620; McMurry v. Kansas City, 283 Mo. 479, 223 S.W. 615; City of Webster Groves v. Taylor, 321 Mo. 955, 13 S.W.2d 646. This discretion extends to a determination of the benefits to be derived from the project (Giers, Webster Groves and Heman, supra), the expediency of the project (Lansdown, supra), and the public necessity and wisdom of the improvement (Goodson, supra). For instance, in Taylor, supra, at 13 S.W.2d, loc. cit. 647, the Court said: “It is equally well settled that whether in a given case property so burdened has received corresponding benefits is a legislative, and not a judicial, question, and that the legislative determination that such benefits are conferred is conclusive on both the owner and the courts, unless it be made to appear that the legislative action is fraudulent, or is ‘arbitrary and wholly unwarranted,’ ‘a flagrant abuse, and by reason of its arbitrary character is mere confiscation of particular property.’ ”

When we boil down the testimony of the four plaintiffs, as given in their depositions, we find that (though expressed in different ways) it is: that there is comparatively little flooding in the subdistrict, and that this comes mostly from water running off the highway; that the cost of the proposed project is excessive, that it will work an extreme hardship on many people, and that the sewer is too large; that the community has no real need for the sewer; that the project and the acts of defendant are “oppressive” because of the cost and the assessments to be levied; that most of the residents will not benefit from the plan; also, that there was some irregularity in one or more meetings in that outsiders attended and that a representative of defendant said that “they were going to put the sewers in whether we wanted them or not.” When we examine this testimony in the light of the demonstrated facts, we find that all or nearly all of the assertions are conclusions, as distinguished from facts which would raise any genuine issue. The necessity for the project, the boundaries of the subdistrict, the existence and extent of benefits, the-cost, and the mode of taxation are all matters which are entrusted to the defendant for its decision; there are no facts stated' which would sustain plaintiffs’ burden of overturning the decision as a fraudulent or arbitrary action. The so-called claim of “oppression” was tied to the allegedly excessive cost of the project and the hardships expected. Defendant had the benefit of engineering surveys; plaintiffs are laypeople, well intentioned it is true, but not really conversant with technical matters-such as sewer construction. The situation is somewhat analogous to that in Granite-Bituminous Paving Co. v. Fleming, 251. Mo. 210, 158 S.W. 4, where the defendant-in a tax bill suit alleged that the improvement was of no benefit to him or of no> greater benefit than to any other property owner in St. Louis; those allegations were-stricken, defendant refused to plead further and judgment followed. The Court said in part, loe. cit. 158 S.W. 7: “When a pleader asserts that certain admitted facts produce a result which the court from its own judicial knowledge knows is not the-result or probable result of such -admitted facts, are such conclusions of the pleader presumed to be true ? We think not. A demurrer admits facts well pleaded, but in-the very nature of things it does not admit the truth of conclusions, conjectures, or mere matters in the nature of prophecy or prediction asserted by the pleader arguendo. Donovan v. Boeck, 217 Mo. 70, 116 S. W. 543; Meek v. Hurst, 223 Mo. 688, 122 S.W. 1022, 135 Am.St.Rep. 531; 31 Cyc. pt 333.” In view of our oft-announced principles which fix a broad discretion in defendant as to these very matters of cost, benefits and necessity, we cannot hold that the generalizations of the plaintiffs created; a genuine issue of fact.

We have already noted that the-claim of a supposed irregularity in one or more meetings, which claim is abandoned* here, creates no material issue. The testimony concerning hardship and inability to-pay the proposed assessments stands in a* somewhat different light from the generalizations just discussed. We shall assume that they constitute statements of fact; hut even so, our cases indicate that such a fact, if true, is insufficient to make the acts of defendant arbitrary or oppressive. In Heman v. Schulte, 166 Mo. 409, 66 S.W. 163 (cited supra), the Court said in part, at 66 S.W., loc. cit. 166: “Not only is it the rule in this state, as asserted above, ‘that, when the matter of establishing sewer districts is intrusted by the legislature to the common council, its action in the premises is conclusive in a collateral attack,’ but the rule generally stated is that, where a municipal body vested with the exercise of a power acts, its acts under that power, in the absence of fraud, are conclusive upon the courts, whether the attack made thereon is collateral or direct, and the fraud that will authorize the court’s interference in the matter of municipal action is not that the power exercised or the ordinance passed has resulted in an individual hardship in its execution, or that in the working out of the general scheme designed by an ordinance an individual burden is imposed, without a corresponding benefit conferred (a necessary incident to any system of general taxation or special assessment yet devised for governmental maintenance and support), but only in those cases when the acts of the municipal body are so unreasonable, oppressive, and subversive of the rights of the citizen in the general purpose declared as to clearly indicate and leave but one inference, — that of an attempted abuse, rather than the legitimate use, of a power enjoyed; and of this qualified and limited assertion of right in the courts to interfere with municipal legislation much doubt is felt.” If a local legislative body, such as defendant, were required to ascertain in advance whether all those persons to be assessed could reasonably pay their assessments, we would have no improvements of this type. We find no cases invalidating an ordinance such as this on account of individual hardship. This question must be viewed in connection with the cases already cited to the effect that the decision of the Board concerning benefits is ordinarily conclusive. In Nichols v. Kansas City, 291 Mo. 690, 237 S.W. 107, the plaintiff sued in equity to cancel certain tax bills for grading, which totaled $2,323.45 on property shown to be worth $3,549, after the improvement. A dismissal of the petition was affirmed. The court held that the question of benefits and the assessment on any individual property or lot were legislative questions not subject to review. See, generally: Mudd v. Wehmeyer, 323 Mo. 704, 19 S.W.2d 891; City of Springfield v. Wright, Mo.App., 282 S.W. 751. Those cases deal with the assessments on individual lots rather than with an attack upon the entire project, but we have held here that there have been no facts produced to show that the plan is arbitrary. It may readily be calculated from the record that the special assessments on two lots of Mrs. Hoelzer (which cost $9,000 and $9,500, respectively) would supposedly be $2,250 each; it is stated by defendant that on each of these lots there will be an anticipated total increase of some $180 in future ad valorem taxes. (The valuations for tax purposes have been stated outside the record, but we may assume an approximate 30% assessment, and a 25% additional levy; the precise figures are immaterial.) Apparently all other assessments are proportionately less, although none are shown. We are unable to justify an invalidation of this proposal because of Hoel-zer’s anticipated assessments; they certainly do not, per se, demonstrate fraud or an arbitrary abuse of power.

We sympathize with the residents of this area upon whom this project may work individual hardships, and there are undoubtedly such persons. If, however, we are to maintain the integrity of our traditional system of local governments and delegated powers, the courts must refrain from interfering with the acts of these bodies except where a real and arbitrary abuse of discretion appears. We find no facts here, as distinguished from conclusions, which raise a genuine issue on that score, and the proof of defendant is therefore “unassailable.” Rule 74.04(h).

The judgment is affirmed.

All of the Judges concur.


author:
BARRETT, Commissioner.
      EAGER, J.,

text:
    Marlin L. SWINGER, Respondent, v. Lee Roy BELL and Louis Don Taylor, Appellants.
    No. 49839.
    Supreme Court of Missouri, Division No. 2.
    Dec. 9, 1963.

      Dempster & Edwards, Sikeston, by Robert A. Dempster, Sikeston, for respondent.
    Blanton & Blanton, Sikeston, for appellant-defendant, Lee Roy Bell.
    Harold D. Jones, Bock & Jones, New Madrid, for appellant (defendant) Louis Don Taylor.
   BARRETT, Commissioner.

The plaintiff, Marlin L. Swinger, was a guest in a station wagon driven by Louis Don Taylor when the station wagon was involved in a collision with an automobile driven by Lee Roy Bell. Swinger instituted this action against both Bell and Taylor to recover damages for personal injuries sustained in the collision. A jury, by a nine-man verdict, awarded Swinger $30,000 and both defendants have appealed from the final judgment. The appellant Taylor has briefed and argued seven main points and eleven subpoints while the appellant Bell has briefed four points, a dismaying twenty-two assignments of error in a comparatively simple and elemental negligence case. Bearing on the plaintiff’s right to recover at all are the claims that for one reason or another Swinger failed to make a submissible case and that as a matter of law he was guilty of contributory negligence and therefore the appellants’ motions for directed verdicts should have been sustained. In the event they are not entitled to directed verdicts, it is urged that because of certain erroneous instructions, the improper admission of certain evidence and the conduct of counsel in unfairly injecting liability insurance on voir dire they are entitled to a new trial and failing in these that there should be a substantial remit-titur.

Among the preliminary matters and somewhat collateral to all other points is the claim that the court erred in refusing to declare a mistrial because, the appellants say, plaintiff’s counsel in qualifying the jury unfairly and in bad faith introduced the subject of liability insurance. It is said that bad faith was shown by plaintiff’s failure to “request the discharge” of five jurors and his failure to strike three who responded that they were policyholders in M. F. A. Insurance Company, the liability insurer of both defendants. The court is asked to “take a second look” at this problem, but upon this record there was no abuse of discretion in the trial court (Gray v. Williams, (Mo.App.) 289 S.W.2d 463) and the circumstances do not call for a reexamination of the established rules. There was the single, general question, addressed to the entire panel, “Now, gentlemen, I want to ask you if any of you gentlemen have a policy of insurance or are employed by or have any connection with the MFA Mutual Insurance Company of Missouri.” As indicated, five jurors responded that they were policyholders, there were “no employees” and no one indicated any other “connection.” Then there was this followup question to which, apparently, there was no response: “Now, gentlemen, that fact, would it prejudice you one way or another in the trial of this lawsuit?” As stated, it is not necessary here to examine the rationale of the rule or to consider the question in detail, there was no persistent effort to improperly “prove” the unquestionable interest of M. F. A. Insurance Company (Olian v. Olian, 332 Mo. 689, 59 S.W.2d 673), and in qualifying jurors “it is proper on the voir dire examination to ascertain whether any juror who has qualified generally is in any way, directly or indirectly, interested in such insurer or carries a like policy in some company, or any other fact or relation which, if known, would aid the parties to the suit in making a choice between the qualified jurors.” Rytersky v. O’Brine, 335 Mo. 22, 27, 70 S.W.2d 538, 540; Annotation 4 A.L.R.2d 761, 792. The fact alone of being a policyholder, however, does not disqualify and the fact that policyholders were not stricken does not establish bad faith in plaintiff’s asking the question. This subject was most recently considered in Bunch v. Crader, (Mo.App.) 369 S.W.2d 768. There as here one of the questions was “Would the fact that you are policyholders in the M. F. A. Insurance company cause you to be biased and prejudiced and prevent you from rendering a fair and — .” And there one of the jurors was “an agent” for the insurance company. It was held that there was nothing to indicate bad faith and that there had been no abuse of discretion in permitting the inquiries.

In claiming that Swinger failed to make a submissible case the appellants have stated the facts as they might have been found rather than as the jury could and did find them. However, only so much of the testimony will be noted as is sufficient to illustrate the lack of merit in the claim' that verdicts should have been directed. The motor vehicles collided about one o’clock on the afternoon of February 2, 1961, at the approach to a bridge on blacktopped highway Y in Stoddard County. The bridge over the Wahite drainage ditch is 177 feet long and at both ends its approaches are elevated 9.2 feet. Bell did not intend to cross the bridge, traveling east he intended to turn left across the highway just before reaching the bridge to what he called a “spur” where dirt had been removed from the drainage ditch. Taylor was traveling west, he and Swinger returning to Cline’s Island where Taylor had done some electrical wiring in the morning Taylor’s station wagon crossed the bridge and collided with Bell’s automobile as Bell, admittedly, “made a lefthand turn there,” looked after his wife said “Watch out,” and stopped with his Ford automobile north over the center line of the highway. He could not say just how much his automobile was over the center line but he “imagined” three or four feet would be “about right.” He said, however, that he did not have the road blocked, “No, sir, I don’t think it would have been blocked.” As to what in the circumstances Taylor could have done he said, “Yes, sir, I think he could have went around me.” Taylor says that as they rode along at a speed of 45 miles an hour and before he got to the bridge he saw Bell’s automobile “a good long ways down the road,” Swinger mentioned the drainage ditch and he looked in that direction. But as “I was going over the incline” Bell, 40 to 50 feet from the bridge, turned across the highway “his left front wheel almost off the blacktop.” Taylor immediately applied his brakes and “skidded into him.” He said however that all of Bell’s automobile, “but the right rear wheel * * * maybe a foot of it,” was over in his lane of travel but that the eastbound lane was open. There was no other traffic and he said that he could have gone around Bell’s automobile but instead, he says, went for his brakes. He did not remember the conversation, says “I might have,” but Swinger testified that while he was in the hospital Taylor 'on one of his visits inade this statement: “Mr. Taylor told me that it was his fault, that he could have missed the wreck. He could have missed Mr. Bell’s car if he had tried not to stop. If he had just pulled over to the left, there was plenty of room. It was his fault; he was to blame for my broken leg; he was sorry.”

This testimony, or the circumstances as the jury found them, directly refutes Taylor’s assertions that under the “undisputed evidence” he could not have swerved “left with safety” or that at the “time he had to make a decision of what action to take” he “could not have for(e)seen whether defendant Bell would stop his Ford and if he should stop whether the greater part of it would be in the eastbound lane or the westbound lane.” Not only does the noted testimony refute the assertions, factually it distinguishes them from Allen v. Hayen, (Mo.) 320 S.W.2d 441, and destroys any possible claim that a verdict should have been directed in Taylor’s favor on Swinger’s cause of action. It is not necessary to consider whether Taylor “was faced with a sudden emergency,” the other reason mentioned in connection with directing a verdict. One of the cases relied on answers the claim: “The so-called emergency doctrine is not a defense, under which a motorist is exonerated simply by reason of the existence of an emergency.” Rohde v. St. Louis Public Service Co., (Mo.) 249 S.W.2d 417, 420(1); Leek v. Dillard, (Mo.App.) 304 S.W.2d 60, 68.

It is asserted that Swinger failed to exercise due care for his own safety and was guilty of contributory negligence as a matter of law because, as appellant Bell puts it, “he orally directed his host driver’s attention from the travel portion of the road upon which he was being conveyed, to a point North of the highway, at a time when the vehicle in which plaintiff was riding was in close proximity to a vehicle (Bell) in the process of making a left turn in front of the vehicle in which the plaintiff was riding.” The difficulty, again, with this assignment is that it is based upon a view of the evidence favorable to the appellants rather than upon the circumstances as the jury could and did find them. It is not necessary to quote at length from the record to demonstrate the untenability of this claim, the plain implication of Taylor’s testimony is that whatever may have been said or done with reference to the drainage ditch was long before he reached the bridge and had nothing to do with the collision. Swinger himself said that as they approached the Wahite ditch they had a conversation, “Yes, sir, I commented on the ditch. They had been cleaning the ditch off and I told Don that they had cleaned it off and he said they had been doing it for some time.” On cross-examination he first said, “I just told him to look, that they had been cleaning the ditch off. Q. All right, sir, and he did look, didn’t he ? A. I don’t know. I was looking north.” Later he said, “I don’t recall saying ‘look.’ ” Obviously, in these circumstances Swinger may not be declared guilty of contributory negligence as a matter of law. Happy v. Blanton, (Mo.) 303 S.W.2d 633; Nydegger v. Mason, (Mo.) 315 S.W.2d 816.

This is not to say however that there was no basis whatever for a submission of contributory negligence on Swinger’s part and he does not contend that there was no evidence upon which to hypothesize a finding of the fact. To support the finding appellants read from Swinger’s deposition in which he had said, “I think I said ‘Don, look, what they’ve done to that ditch’ or something like that and he turned and looked at it and he said something about they had been working on it for some time but to recall the exact words we used, I don’t know. * * * Well, we were both looking up that ditch and as soon as we looked back around, he hit the brake and the car was right in front of us.” Swinger is not conclusively bound by his deposition (Hamilton v. Patton Creamery Co., 359 Mo. 526, 222 S.W.2d 713) even though as he now tacitly concedes there was an evidentiary basis for the submission of his contributory negligence. And in separate instructions both Bell and Taylor submitted Swinger’s contributory negligence upon the hypothesis, in so far as material here, “that the plaintiff directed the attention of defendant Taylor, the driver of the vehicle in which the plaintiff was riding, from the roadway to the area north of said roadway to the ditchbank, if you so find, and that as a direct result thereof defendant Taylor failed to keep a lookout ahead on said roadway * * * and if you further find that in directing defendant Taylor’s attention from said roadway at said time and place, the plaintiff was negligent and that said negligence directly contributed to cause the collision referred to in the evidence.”

Swinger hypothesized the negligence and liability of the appellants in separate instructions. Each' submission was prefaced with the usual hypothesis “that the plaintiff (Swinger) was exercising ordinary care for his own safety.” Against Bell the negligence submitted was the driving and operation of his automobile across the center line into the westbound lane on the wrong side of the road when the way was not clear of oncoming traffic and in front of Taylor’s vehicle. His submission against Taylor was failure to swerve his station wagon to the left thereby avoiding the collision. Both instructions concluded with admonitions that a verdict should be found for the plaintiff “even though you may find that the (other) defendant * * * was also negligent in some respect, as set out in other instructions, directly contributing to cause said collision described in the evidence.” Upon this appeal it is now urged that those instructions ignore or do not affirmatively negate Swinger’s contributory negligence as pleaded, supported and submitted in the defendants’ instructions and that because of this deficiency they are entitled to a new trial.

In this connection the appellant Taylor relies upon, of course, the “procedural” rule “that in cases where the court gives a defendant’s instruction submitting his affirmative defense of contributory negligence, it is error to give a verdict-directing instruction for plaintiff which fails to refer to or negative his contributory negligence.” Moore v. Ready Mixed Concrete Co., (Mo.) 329 S.W.2d 14, 24. But as stated, the plaintiff’s instruction prefaced its hypothesis of Taylor’s liability upon a finding “that the plaintiff was exercising ordinary care for his own safety” and in the absence of some complicating factor (Edwards v. Mellen, (Mo.) 366 S.W.2d 317, 321) that is a sufficient negation of contributory negligence to meet the requirements of the rule. Boll v. Spring Lake Park, Inc., (Mo.) 358 S.W.2d 859, 865; Taylor v. Hitt, (Mo.App.) 342 S.W.2d 489, 498.

And the appellant Taylor contends that instruction 2 which submitted his liability was erroneous in seven other respects, some of which are disposed of inferentially by what has been said with respect to liability and contributory negligence. For example the contention that there was insufficient substantial evidence to justify “failure to swerve” because by reason of certain distances and speeds Taylor “could not foresee whether Defendant Bell would stop most of his vehicle in the eastbound lane or the westbound lane.” In view of the quotations from Taylor’s testimony this argument is beside the point “if for no other reason than that it overlooks the defendant’s own testimony that in the position in which she stopped her car, there was room for cars to pass her’s either northbound or southbound.” Nydegger v. Mason, 315 S.W.2d 1. c. 820. Other of these connected assignments are that the instruction did not require a finding that Taylor knew or should have known that a collision was likely unless precautionary measures were taken and there was no requirement that he could have swerved and avoided the collision. Again, factually these contentions are answered by Taylor’s own testimony and no case cited by him condemns an instruction because of its failure to contain these elements, certainly not in these circumstances. Litt v. Allen, (Mo.App.) 313 S.W.2d 183, 186-187. Swinger’s submission against Taylor was of primary negligence and there was no place in this theory of the case for the doctrine that Taylor must have been able to swerve “with safety to himself and his passenger.” Nydegger v. Mason, 315 S.W.2d 1. c. 821. It is not necessary to enter upon a discussion of “general negligence” and “specific negligence” (Thompson v. Gipson, (Mo.) 277 S.W.2d 527), it is sufficient to say that neither the Thompson case nor any other case cited by Taylor holds that “failure to exercise the highest degree of care” is a submission of negligence of any type, general or special. As employed in instruction 2 the phrase refers more likely to duty rather than to a specification of negligence. RSMo 1959, § 304.010(1), V.A.M.S. The appellant Bell makes a somewhat similar complaint against instruction 3 which defined and required both defendants to exercise “the highest degree of care.” It is said that it was erroneous because “confusing” and in conflict with appellants’ instructions 7 and 8 (contributory negligence) in which plaintiff was required to exercise “ordinary care.” But, again, instruction 4 deals with duty and, of course, drivers of motor vehicles, here Bell and Taylor, are required to exercise the highest degree of care (Holmes v. McNeil, (356 Mo. 846) 204 S.W.2d 303) while their guest is only required to exercise ordinary care. Happy v. Blanton, (Mo.) 303 S.W.2d 633. “Highest degree of care” is a technical term and should be defined (Fantin v. L. W. Hays, Inc., (Mo.) 242 S.W.2d 509), in any event the instruction here did not have the effect of placing different degrees of care upon the appellants as operators of motor vehicles and as stated the respondent was not operating a motor vehicle. Young v. Anthony, (Mo.) 248 S.W.2d 864. In short, all of these particular complaints have been sifted but they do not demonstrate that instructions 2 and 4 were manifestly and prej-udicially erroneous.

Further in connection with instructions, appellant Taylor contends that instruction 1, which hypothesized Bell’s negligence to plaintiff, and instruction 7, which, as noted, hypothesized Swinger’s contributory negligence to Bell, were prejudicially erroneous as to him. In instruction 1 the objection is to the phrase, extirpated from context, “also negligent in some respect” which it is asserted “modifies and does not refer to or incorporate” instruction 2 which directs a verdict against him (Taylor). It is said, again out of context, that Bell’s instruction 7 refers to the negligence of Taylor “as set out in other instructions herein,” submits an additional charge against him, failure to “keep a lookout,” and is prejudicial “without requiring finding of such to be negligence.” Perhaps it is sufficient to dispose of these rather complicated complaints to say that their mere assertion does not prove the fact, certainly the cases cited (Lawson v. Davidson, (Mo.) 344 S.W.2d 76; Schipper v. Brashear Truck Co., (Mo.) 132 S.W.2d 993, 125 A.L.R. 674 and Danner v. Weinreich, (Mo.) 323 S.W.2d 746) do not establish that either of the instructions, for the reasons asserted here, manifestly deprived the appellant Taylor of a fair trial.

Instruction 4 on the measure of damages listed for the jury’s consideration five elements including “(3) For such permanent injuries, if any, as you may find and believe from the evidence plaintiff will suffer by reason and on account of the injuries, if any, sustained by him on the occasion in question” and “(4) For the loss of wages that plaintiff has sustained, if any, by reason and on account of the injuries, if any, sustained by him on the occasion in question.” It is urged that the instruction directs the allowance of “double or multiple” compensation. It is argued here that loss of wages pertains to permanent injury, in fact that permanent injury and loss of wages “are in substance one and the same” and therefore their submission authorizes “double damages for the same factor.” This contention is based in part on the fact, as developed on his cross-examination, that for a month prior to the injury Swinger was unemployed. Nevertheless his testimony that as a dragline operator he earned five to six thousand dollars a year and had been unable to work for the one and one-half years preceding the trial stands undisputed, a distinction, possibly, in this case and the dicta in Murphy v. St. Louis Public Service Co., (362 Mo. 772) 244 S.W.2d 31. But aside from the testimony and factual support the test of improper duplication of damages “is whether the instruction would lead the jury to believe that an award must be made ‘for respondent’s injuries and then allow him an additional sum for damages.’ ” Wild v. Pitcairn, 347 Mo. 915, 926, 149 S.W.2d 800, 805; Kelly v. Kansas City Public Service Co., (Mo.) 335 S.W.2d 159, 165. The instruction here is a rescript of several instructions in other cases and while this type of submission carries certain hazards, as with impaired earning capacity and ability to work (Bone v. General Motors Corp., (Mo.) 322 S.W.2d 916, 71 A.L.R.2d 361) undisputed loss of wages is a recoverable item, at least it is not necessarily included in permanent injury. Moss v. Mindlin’s, Inc., (Mo.) 301 S.W.2d 761, 769.

Appellant Taylor complains of two other trial matters (a) plaintiff’s testimony on direct examination “as to his family status” and (b) counsel’s statement in argument that when Swinger’s deposition was taken “he was in bed full of dope.” As to the first of these, plaintiff had stated his age, residence, occupation, marital status and then there was the question “Have a family?” Counsel for Taylor objected to the question, the court sustained the objection, counsel asked that “it be stricken,” the court said, “If there was an answer, it may be stricken.” Counsel then said, “We prefer to move that on that ground there be a mistrial” and this motion was overruled. There was no answer to the question, the subject was not again referred to and of course the mere question is not manifest error. Smith v. Wabash Railroad Co., (Mo.) 338 S.W.2d 16, 19; Meade v. Kansas City Public Service Co., (Mo.) 250 S.W.2d 513, 516; Annotation 59 A.L.R.2d 373, 396-398.

The other matter complained of appears from a mere fragment of the entire argument supplied in a supplement to the transcript. Perhaps space will be conserved to quote all that appears in the supplemental transcript, ignoring any relevant testimony:

“Mr. Dempster: * * * Now, Mr. Blanton and Mr. Jones make a lot of talk about these depositions. Now, they went to Mr. Swinger’s home when he was in bed full of dope.
“Mr. Blanton: Your Honor, just a second. There is no testimony that fellow was full of dope or anything, like it.
“Mr. Dempster: Medicine.
“Mr. Blanton: If he had been out of his mind or hadn’t been able to take care of himself or know what the question was, Mr. Dempster, wouldn’t have allowed it.
“The Court: The objection will be sustained with reference to the word ‘dope’ and the jury instructed to disregard it.
“Mr. Jones: Because of the unfairness of that type of argument we move for a mistrial.
“Mr. Blanton: Join the motion.
“Mr. Dempster: Full of medicine and pain tablets, and you heard these two lawyers, you heard how they ( ?) me, no telling what a sick man might say * *

The argument was not proper, the court promptly sustained objection to it, instructed the jury to disregard it, there was, evidently, no ruling on the motion to discharge the jury and no insistence on the motion and in any event the argument was not so manifestly inflammatory as to be comparable to the entirely unsupported, persistently improper argument in Dunn v. Terminal Railroad Association of St. Louis, (Mo.) 285 S.W.2d 701.

And finally both appellants contend that the $30,000 verdict is excessive and should be reduced by remittitur. In this connection it must be noted in passing that neither the appellants nor the respondent have cited a single case with more than a tangential bearing on the resolution of this problem. These briefly are the facts as they bear on this assignment: Immediately after the collision Swinger was taken to Dr. Sarno in Morehouse. Dr. Sarno could see that his leg was “fractured badly,”' treated him for shock and referred him to^ St. Louis Jewish Hospital and Dr. Fox,, an orthopedist. An examination by Dr. Fox revealed a cut over one eye and numerous bruises but the “thing of main concern was this very badly swollen right thigh.” X-rays revealed “a very severely comminuted fracture beginning at the junction of the upper and middle third and extending down through the entire midportion of the sh(a)ft of the right femur.” He was placed in “balanced traction,” weights were attached to a stainless steel pin near the knee in an attempt to properly align the fractured bone. This procedure was not too successful and by May 31, after about 15 weeks, an insufficient amount of bone was forming and Dr. Fox came to the conclusion “that the patient was not going to unite this fracture” and it would have “to be reinforced by additional bone.” Consequently, on May 31 most of the traction apparatus was removed, anaesthesia was administered and surgery was resorted to. The bones “were aligned and they were fastened in place” by two egger plates, stainless steel plates, and a number of, eight, stainless steel screws. Bone, “a number of segments,” was removed from the “iliac crest,” hipbone, and “laid in along the fracture where there was not a satisfactory union.” The incision was closed and Swinger was placed in a plaster cast extending from the mid-ribs to the foot. On June 16, 1961, he was permitted to go home “in the cast with crutches.” He had some resulting complications including the “not infrequent complication” of kidney stones. On September 28, 1961, he was readmitted to the hospital, the cast was removed, he was “measured and fitted for a brace” and by October 10 “we began getting him up with the brace and crutches.”

The healing process “was well along the way” at time of trial but not good enough “without some support in the nature of a brace.” The plates “will remain the rest of his life” and he will have “marked limitation of the motion of his knee joint.” He may be able to discard his brace in a year or so but there is a permanent loss of motion in the knee, 30 to 40% limitation of motion, with the consequence that he will have a limp and will experience difficulty in walking up and down steps. Swinger is now 30 years old, there was an established loss of wages of five to six thousand dollars, doctors’ bills of $1,500, a hospital bill of $3,561.00, in short, special damages of over $10,000. As indicated, precisely comparable cases of similar injuries and losses have not been cited and considering all the factors involved in the remittitur doctrine and its standard of uniformity it may not be said that the verdict of $30,000 is excessive. The following cases have been rather persuasive upon this issue, De Mariano v. St. Louis Public Service Co., (Mo.) 340 S.W.2d 735; Scneder v. Wabash Railroad Co., (Mo.) 272 S.W.2d 198; Moss v. Mindlin’s, Incorporated, supra.

For the indicated reasons, the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM.

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

STORCKMAN, P. J., and LEEDY, J., concur.

EAGER, J.,

concurs in separate opinion filed.

I merely wish to register my disapproval of the second question asked the panel on voir dire concerning insurance, namely: “Now, gentlemen, that fact, would it prejudice you one way or another in the trial of this lawsuit?” The question was meaningless to anyone who did not know that M.F.A. insurance was actually involved, and in any event it was entirely improper. I cannot find, however, that this alone constituted prejudicial error sufficient for reversal.

EAGER, Judge (concurring).