author: HOGAN, Judge.

text:
    Paul VENIE and Winifred Metzger, Plaintiffs-Respondents, v. SOUTH CENTRAL ENTERPRISES, INC., a corporation, Defendant-Appellant.
    No. 8446.
    Springfield Court of Appeals. Missouri.
    March 22, 1966.

      James H. Keet, Jr., Theodore C. Salveter, Jr., Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for defendant-appellant.
    Paul L. Bradshaw, O. J. Taylor, Neale, Newman, Bradshaw, Freeman & Neale, Springfield, for plaintiffs-respondents.
   HOGAN, Judge.

This is an action for breach of an express warranty made by the defendant corporation in connection with the sale of a chemical weed killer. The cause was tried to the court without the intervention of a jury, and the plaintiffs had judgment for $3,539.-98. The defendant has appealed.

At the time in question, the plaintiffs were raising strawberries commercially on a small tract of land owned by Mrs. Metz-ger. Mr. Venie is her nephew, and during the period involved here they operated under an informal partnership agreement whereby Mrs. Metzger furnished the land and Mr. Venie was in charge of cultivation. The extent of Mr. Venie’s formal or technical education is not shown, but he had been “in the strawberry growing business” since 1937, and said he was “versed in the raising of crops, [but was] not a chemist.”

The defendant corporation is, among other things, a retail supplier of agricultural chemicals. Mr. Dave Archer, the defendant’s protagonist in this controversy, was the corporation’s “Divisional Merchandising Manager, Chemicals”: he was employed to sell agricultural chemicals, including herbicides. Mr. Archer has received the bachelor’s and master’s degrees in Agricultural Education from the State University; he has taught Vocational Agriculture and has done “some work” with “strawberries and all fruits” at the State Fruit Experiment Station.

Weeds, in Mr. Archer’s words, are “the big problem with strawberries.” Weed infestation not only prevents or impedes the growth of strawberry plants by competing with them for moisture and nourishment, but makes the berries difficult to pick. During the 1961-1962 growing season, the plaintiffs were having trouble with weeds, and their efforts to control them led to this action.

To conserve space, we will not recite the evidence concerning the parties’ dealings in detail. The gist of plaintiffs’ claim was that Mr. Venie informed the defendant through Mr. Archer that he needed a herbicide which, if properly applied, would control the weeds in his strawberry patches without damage to the plants themselves. The plaintiffs’ position was — and their proof tended to show — that Mr. Archer attempted to locate a suitable preparation and finally sold them a chemical weed killer known as 2, 4, 5-T upon an express oral warranty that if it was properly applied it would kill the weeds and would be “perfectly safe for strawberries.” Their evidence was further that they did apply the herbicide by conventional methods, as directed by the defendant, but that the 2, 4, 5-T not only destroyed the weeds but most of the strawberry plants as well. The defendant, while it generally admitted making the sale and the fact of damage, categorically denied making any warranty and maintained that if the 2, 4, 5-T had been properly applied at a time when the strawberry plants were dormant, there would have been no damage whatever.

The case has been briefed and argued by both parties with exacting attention to detail. Each emphasizes a different aspect of Rule 73.01(d), which defines the extent of appellate review in court-tried cases. As the appellant says, Rule 73.01(d) contemplates a review of the whole case upon its merits, and not a mere determination whether the trial court’s findings are supported by substantial evidence. Further, the deference accorded the trial court’s findings is precisely that, and not a matter of constitutional or statutory inhibition. Cross v. Gimlin, Mo., 256 S.W.2d 812-813 [2, 3]; Redden v. Boehmer, Mo. App., 223 S.W.2d 127, 129 [1, 2]. On the other hand, where the evidence is conflicting and close, and particularly where the decision depends upon conflicting oral testimony and the credibility of witnesses, the appellate court should generally defer to the findings of the trial court unless it is satisfied they should have been otherwise. Leggett v. Missouri State Life Insurance Co., Mo., 342 S.W.2d 833, 850 [2]; In re Petersen’s Estate, Mo., 295 S.W.2d 144, 148 [3]. And an ancillary proposition which the appellant impliedly recognizes is that in reviewing a court-tried case the appellate court will not be particularly concerned with the reasons assigned by the trial court as long as it has reached a correct result. Edgar v. Fitzpatrick, Mo., 377 S.W.2d 314, 318 [12]; Producers Produce Co. v. Industrial Commission, 365 Mo. 996, 1004, 291 S.W.2d 166, 170 [1]; Brewster v. Terry, 352 Mo. 967, 972, 180 S.W.2d 600, 602 [1], With these rules in mind, we approach the defendant’s assignment that the plaintiffs made no ease either upon an express or implied warranty. The appellant also contends that the plaintiffs made no case upon any theory of negligence, but that is not really germane to this appeal, for the plaintiffs state their theory as being one of express oral warranty and argue the sufficiency of their evidence primarily from that viewpoint.

The first of defendant’s specific contentions is that Mr. Archer made no statement which could be considered as a positive assertion of fact. The evidence material to this assignment is that in searching out a suitable herbicide Venie asked Archer “how I could cure henbane and clover in strawberries with a spray that would be absolutely harmless to a berry plant as 24D or Craig would. But 24D or Craig would not cure henbane.” Mr. Archer was unable to recommend anything with that degree of selectivity but advised Mr. Vanie he would look into the matter. Apparently the two discussed this matter on several occasions, and, at least as Venie recalled, in January 1962 Archer said “he had come up with a chemical that he had read about that would control both of them, both the weed and the clover.” Mr. Venie’s testimony was that when he asked if the chemical was “as safe as the other things I had been using,” Archer answered, “Yes, use it; it is perfectly safe for strawberries.” On cross-examination, Mr. Venie repeated essentially the same testimony — that he had not asked for a guarantee but only if the spray Mr. Archer had in mind was safe to use, and “he [Archer] told me he had a product, contained 2, 4, 5-T, that would control the henbane and clover and would be harmless to strawberries.” The plaintiffs also introduced in evidence a pamphlet sent to Venie by Archer in response to Venie’s request for information. The pamphlet, which was prepared at the State University, purports to recommend chemicals suitable to control weeds in fruit crops. On the first page, the pamphlet bears Mr. Archer’s notation, “Paul, see last page.” The last page, under the general heading “Strawberries (continued) Special Weed Problems,” lists chemicals recommended for the control of chickweed and henbit in strawberry patches, and bears the notation “Also 245-T.” This was sent to Mr. Venie in January 1962 prior to the purchase of the weed killer.

While this summary of the evidence on this particular point — that there was no specific representation amounting to a warranty — is admittedly incomplete, we believe the most that can be said is that there was a disputed factual question whether Mr. Archer, knowing the plaintiffs’ special needs, represented chat the spray he sold Mr. Venie was a selective weed killer which would control weed growth without damage to the strawberry plants. That question could have been resolved either way, depending upon whether the trial court chose to believe Mr. Venie or Mr. Archer. It may be that Mr. Archer did not intend his statements to constitute an express warranty, and that he did not, as counsel argues, use the word “guarantee,” but the creation of an express oral warranty, at least under the law applicable here, did not require the use of any particular term or technical words, but only that there be a positive affirmation or representation of fact by the seller relating to the subject matter of the sale. Turner v. Central Hardware Co., 353 Mo. 1182, 1189, 186 S.W.2d 603, 606-607 [5-7], 158 A.L.R. 1402, 1408. No specific intention was required on the seller’s part other than to make a positive affirmation of fact, Charles F. Curry and Company v. Hedrick, Mo., 378 S.W.2d 522, 536 [16]; Turner v. Central Hardware Co., supra, 353 Mo. at 1192, 186 S.W.2d at 608 [14], 158 A.L.R. at 1410, and indeed the existence and nature of an express warranty vel non was a matter of inference from the language used, considering the surrounding circumstances. Stone v. Farmington Aviation Corp., 363 Mo. 803, 807, 253 S.W.2d 810, 812 [2, 3].

The defendant also maintains that because Venie was equally as familiar with the properties of 2, 4, 5-T as Archer, the record furnishes no basis for a finding that the plaintiff reasonably relied on Mr. Archer’s representation, even if one was made. In support of this argument, the appellant cites, among other cases, Dotson v. International Harvester Co., 365 Mo. 625, 285 S.W.2d 585. That case involved a claim for breach of warranty concerning a two-row tractor-drawn corn planter. One of the buyers’ numerous claims in that case was that they told the defendant they “wanted a corn planter that would plant this corn nine inches apart, and that we could use at high speed, and that would put the fertilizer down in the same operation.” The defendant had then said, “[T]his planter will be especially suitable for your use.” The plaintiffs maintained that this representation constituted an express warranty of fitness for a particular purpose. In commenting upon the inferences reasonably permissible from the facts, the court held, 365 Mo. at 635, 285 S.W.2d at 590, that inasmuch as both parties were farmers, and the defendant had no special knowledge or skill the plaintiffs did not also have, “ * * * these parties stand upon an equal footing and it is not possible to find or infer that [plaintiffs] justifiably relied upon Mr. Croll’s superior knowledge and experience, or upon any promissory representations he may have made respecting the corn planter.”

The defendant’s point is not without force. Mr. Venie was an experienced strawberry grower; he had been “in the strawberry business” since 1937. He “[had] studied it * * * [tried] to keep up with it at least, [tried] to be very familiar with it.” He subscribed to and read periodicals dealing with his trade. He was familiar with spraying techniques and had admittedly used or tried preparations chemically similar to 2, 4, 5-T. And it is true, as the appellant says, that reliance upon the affirmation of fact or representation claimed to be a warranty is one of the elements of a cause of action for breach of the warranty, and the plaintiff had the burden of proving it. Turner v. Central Hardware Co., supra, 353 Mo. at 1191, 186 S.W.2d at 608 [12], 158 A.L.R. at 1410; 1 Williston, Sales, § 206, p. 534 (Rev. ed. 1948); 77 C.J.S. Sales § 310, pp. 1143-1144. The requirement of reliance, however, has several aspects and must be considered and applied in context. Usually the requirement of justifiable reliance is discussed in connection with a claim of implied warranty of fitness for a particular purpose, 1 Williston, Sales, § 235, pp. 607-610, though in the absence of a statutory definition, the division of warranties into express and implied has been inexact, 1 Williston, Sales, § 194, p. 499, and we decline any attempt to distinguish the two precisely. In any event, we cannot read into the Dotson case, supra, any requirement that the buyer’s reliance on the seller’s skill and judgment be a total and complete reliance, and the fact that Venie had tried some chemical herbicides and was familiar with spraying techniques would not, in our opinion, bar his recovery. Turner v. Central Hardware Co., supra, 353 Mo. at 1190, 186 S.W.2d at 607 [8], 158 A.L.R. at 1408; Hagedorn v. Taggart, D.C.Mun. App., 114 A.2d 430, 432 [5, 6],

Again in'connection with the sufficiency of the plaintiffs’ evidence, the argument is made that they made no proof of any breach of warranty because their evidence did not establish a causal connection between the use of the weed killer and the loss. In candor, we consider this argument to be without substantial merit. There is no question that the 2, 4, 5-T was purchased from the defendant and that it was applied to the plots of ground upon which the plaintiffs were cultivating strawberries. Mr. John Schatz, a college teacher of horticulture and the operator of a commercial nursery, testified in response to a hypothetical question that the chemical herbicide caused the damage, and Mr. Winton Young, an experienced fruit grower who had examined at least some of the plaintiffs’ damaged plants, said the damage “looked like herbicidal injury.” Since it was directly shown that the 2, 4, 5-T was applied to the strawberry plants and that the plants suffered herbicidal injury, we consider the evidence sufficient to establish the use of 2, 4, 5-T as the cause of plaintiffs’ loss. McLouth v. General Telephone Co. of the Southwest, D.C.Ark., 164 F.Supp. 496, 499 [1].

There are two additional arguments which can be appropriately considered here. The appellant maintains it should not he held liable because, even if it be assumed Archer gave a warranty, the plaintiffs failed to use the 2, 4, 5-T when the strawberry plants were dormant and failed to take notice of the warnings and directions to be followed in the pamphlet or advice bulletin and on the label found on the container when the herbicide was sold. We are going to consider these arguments in terms somewhat different from those used by the appellant, but that does not imply that we consider our terminology, so to speak, to be necessarily superior to the appellant’s.

One of the principal points of controversy on this trial was whether the strawberry plants were dormant or nonvegetative at the time they were sprayed. The pamphlet or advice bulletin which Mr. Archer sent to Mr. Venie warns the user of chemicals similar to 2, 4, 5-T that “strawberry plants must be fully dormant” and “apply in late winter but before the strawberries begin growth.” The significance of this warning clearly appears from a consideration of the way in which this weed killer operates. Essentially, 2, 4, 5-T is a hormonal herbicide which so greatly intensifies or stimulates plant growth that the plant is killed. As one witness put it, “ * * * it actually speeds up respiration to the point of death.” The weeds involved here are fall germinating plants, while strawberries are normally dormant or nonvegetative in cold weather. As Archer testified, “2,4,5-T is a plant hormone [and] must be circulated by a growing plant before it can become effective.” Obviously if the 2, 4, 5-T were applied at a time when the weeds were growing but the strawberry plants were dormant, it should kill the weed and spare the plant.

Mr. Venie testified that he bought the 2, 4, 5-T on February 1, 1962, that he personally examined the plants before applying the spray, and that “they were dormant” when he sprayed them on February 2. Mr. Schatz, the horticulture instructor, said he had never seen any active strawberry plants as early as the first week of February in the locality where plaintiffs’ plants were being grown. Mrs. Metzger’s testimony was similar to that given by Mr. Schatz.

The defendant introduced rather elaborate proof tending to show that the plants were probably not dormant on the day the 2, 4, 5-T was applied. This proof, for the most part, consisted of meteorological data and Mr. Archer’s testimony that he had been “ * * * fearful at that time that they would be coming out of dormancy, with the extreme warm weather we had had.” Admittedly, the defendant’s evidence, taken alone, tends to show that the weather was too warm to use the weed killer safely when it was applied.

Another point in controversy was whether the weed killer had been applied by the use of a proper spraying technique, but the most that can be said of the evidence on this point is that it appears the weed killer was applied by conventional methods, and Mr. Archer did testify that “ * * * there was no stipulation made about method of application, probably would be presumed over-all spray when they were fully dormant.” The defendant has also argued the effect of the label on the can, pressing upon our attention that 2, 4, 5-T is labeled primarily as a brush killer, and warns the user not to apply it directly to or otherwise permit it to come in contact with any crop plant or ornamental plant. The weakness of defendant’s arguments concerning the label is that there is no direct and positive proof that the label on Mr. Venie’s can of 2, 4, 5-T contained the same words as the can introduced in evidence by the defendant to show the contents of the label. Again, the evidence tends to show that the wording was the same, or very similar, but neither the manufacturer’s representative nor Mr. Archer could say the words on Mr. Venie’s label were the same as those found on the label which was introduced, and therefore it was a matter of fact whether the same warning was conveyed by both labels.

Rather abruptly and arbitrarily translating these arguments into legal terms, the warranty here was of the kind said to be inferred; the nature and extent of the warranty depends upon consideration of the representations or affirmations made by the seller and all the circumstances surrounding the transaction, Stone v. Farmington Aviation Corp., supra, 363 Mo. at 807, 253 S.W.2d at 812 [2, 3]; Turner v. Central Hardware Co., supra, 353 Mo. at 1189, 186 S.W.2d at 606 [4], 158 A.L.R. at 1407-1408, and it follows that the content of the bulletin and the instructions on the label cannot be ignored in ascertaining the terms of the warranty. One major aspect of the appellant’s defense was that whatever representation had been made was dependent upon the plaintiffs’ use of the weed killer according to directions, and of course liability on a warranty may be made dependent upon the occurrence or performance of conditions, in which case the warranty is usually described as a conditional warranty. If liability on the warranty is conditional, then either compliance with or waiver of the conditions must be shown by the warrantee before he can recover for its breach. Dugan v. Trout, supra, 271 S.W. 2d at 597-598. Essentially, then, the defendant’s arguments that the strawberry plants were not dormant, that the plaintiffs did not use a proper spraying technique, and that they did not follow the directions on the label, are but arguments that the conditions of the warranty have not been performed. Again, we can readily see the basis for these arguments, but the most that can be said is that, on all the points raised concerning compliance with these conditions, the evidence was in conflict, and the conflict was a matter for resolution by the trial court.

In so ruling, we have not overlooked the more involved arguments that the appellant has made, including its contention that Mr. Venie’s conduct, in the circumstances, amounted to a species of contributory negligence or assumption of risk, nor have we ignored the citations of authority from other jurisdictions, principally Stull’s Chemicals v. Davis, Tex.Civ.App., 263 S.W.2d 806, and Gibson v. California Spray-Chemical Corp., 29 Wash.2d 611, 188 P.2d 316, which the appellant has repeatedly called to our attention. We consider it unnecessary, however, to the disposition of this appeal, and probably most imprudent, to attempt any review of the law of warranties in sales of goods as it was when this case was tried, for the subject is now in large measure regulated by statute, and our examination of the foreign cases merely strengthens our conviction that the law concerning the sale of food, drugs and chemical products is being developed along specialized lines. We will neither attempt to explain the past nor predict the future.

The appellant’s last point concerns the award of damages. Specifically, the claim is made that the evidence does not support the award as to one plot, and that the trial court applied an incorrect measure of damages and awarded an excessive sum as to the other.

Though the evidence of damage is diffuse, the record indicates that during the 1962 season Mr. Venie was cultivating at least three plots, two of which belonged to the partnership. The first consisted of two acres in its third and last commercially bearing year. It was referred to as the “old” or “north” patch. It contained one and one-half acres of Belmar strawberries and one-half acre of Paymaster strawberries. Mr. Venie considered the Paymasters to be slightly inferior in quality to the Eelmars; he described the Paymasters as “ * * * not as productive a plant or as good a hedge maker as the other[s].” The plants on this old patch were about 90 per cent destroyed, though plaintiffs’ evidence indicated they realized the sum of $277.00 from the sale of berries off the “old” patch. The second plot, called the “south” patch, was a new one-acre planting; it was completely destroyed. A third plot, owned by Venie individually, was not sprayed with weed killer but was located either next to or near the other plots, and the yield from Venie’s own cultivation, along with other production figures, was used as a basis for calculating plaintiffs’ loss of profits.

The trial court found that the plaintiffs could reasonably have expected to realize the sum of $1,950.00 after expenses on the two-acre plot. This was based on a reasonable expectation of a profit of $1,000.00 per acre from the better producing berries, and slightly less from the inferior berries. Because of the injury, the trial court found the plaintiffs actually realized only $277.00. Since the “old” patch was in its last bearing year, the trial court treated it as an annual crop and refused to allow the cost of reseeding. The court also found that the plaintiffs were deprived of profits on the “new” or “south” patch in the sum of $1,000.00, and that the reasonable cost of replanting it was $866.98. Treating the new patch as a perennial crop, the trial court allowed the cost of reseeding and made a total award of $3,539.98. Insisting that plaintiffs’ damages must be assessed by the measure and method set out in Blackburn v. Carlson Seed Co., Mo.App., 321 S.W.2d 520, 522-523, the defendant points to various inconsistencies in plaintiffs’ proof and asserts that there is no reasonable basis in the evidence for the assessment of the award.

We find it wholly unnecessary to approach these assignments in terms of the adequacy of proof to establish the probable market value of plaintiffs’ un-matured strawberry crop. Again we emphasize that with this type of review we are not particularly concerned with the method by which the trial court reached its conclusions, so long as it reached a correct result. Edgar v. Fitzpatrick, supra, 377 S.W.2d at 318 [12]; Bissell’s Ex’rs v. Warde, 129 Mo. 439, 452-453, 31 S.W. 928, 932. As presented, plaintiffs’ claim was primarily a claim for loss of profits during the 1962 growing -season, although they also laid claim to the cost of reseeding on both patches, apparently on the theory that strawberries are perennial plants. On direct examination, Mr. Venie was asked if he had computed his per acre profit from the sale of strawberries in “non-frost” years. He had, for 1958 and 1959. In 1958 he realized “a little over thirteen hundred,” and in 1959 “a little over a thousand.” This was “after the payment of his expenses.” One entry in the small notebook offered and received as Defendant’s Exhibit “L” indicated that the net profit made from Mr. Venie’s individual planting was $1,802.00. A plot set out to replace the “south” or “new” patch, which was completely destroyed, yielded a net profit of $1,266.27. There is another very informal entry in this same notebook which indicates an average net profit per acre per year of $975.00 for the years 1958 to 1961, inclusive. Mr. Venie testified, however, that 1960 and 1961 were not really comparable to 1962, because there had been frost during 1960 and 1961, while there had been none during 1958 or 1959. Possibly there is, as the appellant argues, some variance and inconsistency between the figures recited in the plaintiffs’ various records, but the inconsistency, if any, was a matter for consideration by the trial court. It is well established that damages may be recovered for loss of profits caused by breach of warranty, if the evidence is certain enough to permit a rational estimate of the amount, Spruce Co. v. Mays, 333 Mo. 582, 593, 62 S.W.2d 824, 828 [5, 6]; Eastman Kodak Stores, Inc. v. Summers, Mo. App., 377 S.W.2d 476, 480-481 [8]; C. A. Wood Preserver Co. v. Springfield Gas and Electric Co., Mo.App., 243 S.W. 239, 240-241, and plaintiffs are not to be denied a substantial recovery if they have produced evidence from which the court can reasonably and fairly estimate their loss, even though the precise amount is somewhat uncertain. Faire v. Burke, 363 Mo. 562, 569, 252 S.W .2d 289, 294 [6]; Blackburn v. Carlson Seed Co., supra, 321 S.W.2d at 523 [5, 6]. Frankly, while we consider the figure of $1,000.00 per acre to be a most sanguine estimate, there is a record basis for it, and we cannot confidently say the trial court erred in adopting it.

On the other hand, we believe the cost of replanting the south or “new” patch was improperly allowed in this case. It is true enough that when the roots of a perennial crop are destroyed the cost of reseeding or replanting is ordinarily a proper element of the plaintiff’s damage. Beaty v. N. W. Electric Power Cooperative, Mo. App., 312 S.W.2d 369, 372. Nevertheless, the usual measure of damages for destruction of a perennial crop, including the roots, is not applicable here for several reasons. In the first place, the distinction between an annual crop and a perennial crop is not at all as clear as the parties assume, although the question whether the cost of reseeding is to be allowed ordinarily depends upon a characterization of the crop destroyed as being one or the other. Ordinarily the term “annual crop” is equated with the more formal fructus industriales, that is, products of the earth which are the result of annual labor and cultivation (manurance) by the person in possession of the realty. Garth v. Caldwell, 72 Mo. 622, 627 ; 5 American Law of Property, Section 19.16, p. 64, note 1 (1952); 2 Tiffany, Real Property, Section 590, p. 525 (3rd ed. 1939). Some definitions make the point that a crop should be considered an “annual” crop if the produce in a given year is principally the result of attention and care exerted in the same agricultural year. Restatement, Property, Section 121, comment f (1936). Others venture the opinion that the matter is a question of intention; crops are perennial if the planter intends them to become a part of the realty. 5 American Law of Property, Section 19.16, p. 64, note 1. Whether a crop in a given instance is to be considered an annual or perennial is subject to a profusion of views, but if the criteria set forth above were applied to this record a tenable argument could be made that strawberries are an annual crop. There is record evidence that the amount of cultivation and labor required for a second crop of strawberries is substantially the same as that required for the first. Mr. Schatz, plaintiffs’ agricultural expert, called the cultivation for a second crop a “renewal” operation, and said there “would not be a lot of difference in the amount of labor and cultivation required from year to year.” The figure -$866.98 for labor and cultivation represented, he said, a yearly average. Certainly Mr. Venie did not intend to attach the plants to the realty; as a matter of fact, it appears he let the “south” patch lay fallow until fall, when he planted some cane. It does not appear, therefore, that strawberries are perennial in the same sense as the grass dealt with in Crouch v. Kansas City Southern Ry. Co., 141 Mo.App. 256, 124 S.W. 1077, aff’d Couch (Crouch) v. Kansas City Southern Ry. Co., 252 Mo. 34, 158 S.W. 347, 46 L.R.A.,N.S., 555, the alfalfa of which the court was speaking in Adam v. Chicago, B. & Q. R. Co,, 139 Mo. App. 204, 122 S.W. 1136, or the bluegrass pasturage considered in Beaty v. N. W. Electric Power Cooperative, supra, 312 S.W.2d 369. See also Smock v. Smock, 37 Mo.App. 56, 65-66.

Assuming that strawberries are properly considered perennials, however, the fallacy of allowing the cost of replanting in this case lies in the fact that such allowance is made, usually, on the theory that destruction of the roots of the perennial has damaged the freehold, while respondents, as informal partners or joint venturers, claimed the cost of replanting only because they “have lost more than one year’s crop, at least so far as one patch is concerned.” The plaintiffs concede they make no claim for damage to the inheritance, but claim the cost of reseeding because the plants would have borne in succeeding years. The substance of their argument, in our view, is that they have lost the prospect of a future crop and should therefore be compensated with a new planting. We cannot agree. The loss of future crops is not cognizable as an element of damages in a case of this kind, Beaty v. N. W. Electric Power Cooperative, supra, 312 S.W.2d at 372-373 [4], and in our view plaintiffs have no compensable damage because of their loss of roots which might produce them. We therefore conclude that the cost of reseeding the south patch was erroneously allowed.

The judgment should therefore be modified by reducing the award of damages to the sum of $2,673.00, and it is so ordered. Otherwise the judgment must be affirmed. The cause is remanded with directions to enter a new judgment for plaintiffs in the sum of $2,673.00 as of the date of the original judgment.

STONE, P. J., and RUARK, J., concur.

      . All references to statutes and rules, unless otherwise noted, are to RSMo (1959), V.A.M.S. and V.A.M.R.

      . W. L. Fleisher & Co. v. Cornwell, 328 Mo. 998, 1008, 43 S.W.2d 423, 427 [2, 3]; Nichols, Shepherd & Co. v. Larkin, 79 Mo. 264, 270-271; Dugan v. Trout, Mo.App., 271 S.W.2d 593, 597; Charles Lomori & Son v. Globe Laboratories, 35 Cal.App.2d 248, 95 P.2d 173, 177 [5]; London v. Curlee, Tex.Civ.App., 336 S.W.2d 836, 837 [2] [3]; 2 Meehem, gales, § 1232, p. 1068 (1901); 77 G..T.S. Sales § 337, p. 1224.

      . L.1963, pp. 524-526, Sections 2-312 to 2-318, inclusive, now codified as Sections 400.2-312 to 400.2-318, R.S.Mo. (Supp. 1965) and V.A.M.S. See Lauer, Sales Warranties under the Uniform Commercial Code, 30 Mo.L.R. 259-287 (1965).

      . Cooley v. Kansas City, P. & G. R. Co., 149 Mo. 487, 494, 51 S.W. 101, 103-104 [6] ; Adam v. Chicago, B. & Q. R. Co., supra, 139 Mo.App. at 207-208, 122 S.W. at 1136-1137 [2]; Mattis v. St. Louis & S. F. Ry. Co., 138 Mo.App. 61, 63, 119 S.W. 998; Carter v. Wabash R. Co., 128 Mo.App. 57, 62-63, 106 S.W. 611, 613; 3 Sedgwick, Damages, § 937 a, p. 1939 (1912).


source: Caselaw Access Project

author: WESTHUES, Special Commissioner.

license: Public Domain

text:
    Catherine I. PILKINTON, Plaintiff-Respondent, v. Ni PILKINTON, Defendant-Appellant.
    No. 8468.
    Springfield Court of Appeals. Missouri.
    March 2, 1966.
    Motion for Rehearing or to Transfer to Supreme Court Denied March 21, 1966.
    Application to Transfer Denied May 9, 1966.
    Ni Pilkinton, pro se.
    Richard D. Moore, Newton C. Brill, West Plains, for plaintiff-respondent.
   WESTHUES, Special Commissioner.

This is an action for divorce filed by plaintiff, Catherine I. Pilkinton, against her husband, Ni • Pilkinton, in the Circuit Court of Howell County, Missouri. A motion to disqualify the regular judge was sustained and the Hon. Roy W. McGhee was requested to try the case which was heard on December 14, 1964. The court granted plaintiff a divorce, custody of a minor child (8 years old), and $25 per month for the support of the child. From the judgment entered, the defendant appealed to the Springfield Court of Appeals where the case was submitted on briefs on January 12, 1966.

Defendant-appellant, without the aid of counsel, filed a brief and suggestions in response to the brief of plaintiff-respondent.

In her petition for divorce, plaintiff alleged that she and the defendant were married on July 31, 19S2, at Salem, Arkansas; that they separated on July 25, 1963. As grounds for divorce, plaintiff stated that the defendant assaulted plaintiff and that he was cruel and inhuman toward plaintiff and her minor children; that he often cursed and abused plaintiff and her minor children. It may be stated here that one child was born of the marriage and that plaintiff had a child at the time of the marriage, born out of wedlock. At the time of the trial, this child was 15 years old.

Defendant, acting without counsel, filed an answer and cross bill. He alleged that plaintiff had never been divorced from her first husband and therefore the marriage between plaintiff and the defendant should be annulled.- The following paragraphs are taken from defendant’s answer and cross bill:

“2. After about thirty days of married life plaintiff deserted defendant and with the help of crooked doctors and lawyers tried to collect $1000.00 of alimony, which she failed to get. She then came back to live with defendant. Since then she has repeatedly told defendant, ‘they told me they (?) I would have to make you run me off.’

“When this plan did not work she conspired with crooked lawyers and judges to get the defendant in jail without bail so that she. might make away with his property without being obliged to resort to law to get it.”

Other allegations contained in defendant’s answer are not material.

The following is plaintiff’s evidence as to what occurred on the day of separation;

“Q Mrs. Pilkinton, when did you become separated from the defendant?
“A July 25th, 1963.
“Q Mrs. Pilkinton, will you tell the Court the circumstances that brought about that separation?
“A Yes, I sure would. We came to town to buy some groceries and he went down there to the Blue Front. We went to drink one bottle of beer apiece. We went down there to get some feed for the cows. I told him ‘We’ll have to have some groceries.’ He said, ‘How much are groceries going to cost?’ I said, ‘$13.00.’ He said, ‘By God, you’re not getting them.’ Those are just the words he said. I said, ‘Yes. This isn’t for me, it is for the kids, we have to have some groceries.’ He said, ‘We’re not going to get them.’ He reached out and I turned off the truck keys, so we could not go home. He reached and picked up the car jack. That is when he hit me. When he hit me with the car jack, I hit him with the tire tool one time. He. just kept on hitting and then shoved me out of the truck and tried to run over me.”

Plaintiff testified that thereafter she rented a place where she and her two children lived; that defendant did not thereafter aid in the support of the family.

The evidence showed that prior to the separation the family lived about five miles from school; that trouble arose over bus transportation. It seems that the nearest point where a bus for the child’s school could be reached was three miles from the Pilkinton home. However, there was a bus stop about one-half mile from the home where plaintiff’s older child could get on a bus and later transfer to another bus. To do this, a fee was required for the first bus because this bus did not go to the school the child was attending. This was not satisfactory to the defendant. Plaintiff testified that thereafter defendant refused to let the child ride the bus but compelled the child to walk to school with a sign on her back. • This sign was introduced in evidence. It measured about 14 inches square. Painted thereon, in letters about two inches in height, were the words, “5 Years of Walking Ten Miles to School.” Concerning this sign, plaintiff’s evidence was as follows:

“Q Will you tell about this sign Mr. Pilkinton made Lillie Irene wear?
“A Yes, sir. He made her wear a sign stating she had to walk ten miles to school, 5 miles in and 5 miles out. The school has offered to come to the gate up there and pick her up, that is just half a mile from us, and he would not let her do it. He made her walk in and out to school.
* * ⅜ * * *
“Q Mrs. Pilkinton, will you please tell the Court by what other means the defendant was cruel to this child?
“A She would get tired of wearing the sign and she would wear it out, tear it up, or something, to try to get out of means of wearing it and he would whip her black and blue for not wearing it and make her make a new sign. He also whipped his own little child, because she was only 3 years old and he tried to make her learn her A, B, Cs, and no child will learn her A, B, Cs just in one day. He has whipped her till it was pitiful.”

On cross-examination of plaintiff by Mr. Pilkinton, he asked questions but he also made statements. Note one of these:

“Q It was a matter of transportation. I would have to pay for that transportation. I have got the letter here. I want to introduce that letter to show I would have to pay for that transportation. I wouldn’t let her go to another school district and transfer to West Plains District and have to pay for that transportation too. At no time this school bus ever come within half a mile of our gate.”

Lillian Irene Taylor, plaintiff’s older daughter who wore the sign or placard to school, was called as a witness by the defendant. She testified that defendant compelled her to wear the sign and that it embarrassed her greatly. Defendant testified that the child wore the sign willingly and claimed it did not hurt the child. On this subject, note defendant’s question and the child’s answer thereto:

“Q It didn’t hurt you any, it didn’t do you any physical harm to wear that sign, did it?
“A It didn’t do any physical harm, but it sure did a lot of harm otherwise, because people looked down at me because I had it to wear.”

This child, Lillian Irene Taylor, actually walked to and from school, five miles each way. A number of witnesses testified that they saw the child wearing the sign.

Defendant called a number of witnesses who were examined by the defendant. We have read the evidence of these witnesses and have not found wherein their evidence supports any of the allegations made by the defendant.

Defendant testified at length but we failed to find in his testimony any substantial evidence of conduct on the part of plaintiff which would be grounds for divorce. Plaintiff admitted striking the defendant with a tire tool claiming she did so in self defense when the defendant was striking her with a car jack.

Defendant testified that after the trouble with bus transportation he insisted the family move to town so the child could walk to school. Note his evidence:

“A * * * I tried to get her mother to move to town where she would be in walking distance from the school, but she wouldn’t do it. It is just as well to bring out the point, the reason she wouldn’t do it was because she was married to me to make trouble for me all she could.
“THE COURT: You think that is the reason she married you, Mr. Pilkinton?
“A I think so, yes.”

Defendant testified that shortly after the marriáge plaintiff filed a divorce action which was later dismissed. Note his evidence with reference to this episode:

“MR. PILKINTON: To begin with if she got a few dollars with me, when she sued for divorce the first time and that would have been all there was to it. I didn’t pay off what when I seen the lawyers I had hired was working against me, trying to make me have to pay off. One of them suggested I let her come back and make up with her and let her withdraw her suit, then she wouldn’t get a personal judgment against me. It was my opinion if I let her come back in a month or six weeks she would be gone again, so I let her come back and she fooled me. That went along for years, all that time she was making all the trouble she could. * * * ”

Defendant continued with his version of plaintiff’s conduct, telling how undercover agents work. After some time, the Court interrupted, with the following question: “Did I understand you to say that was the role of an undercover agent?” Mr. Pilkin-ton answered, “Yes.” Defendant continued his description of plaintiff’s actions comparing them to those of an undercover agent, when the Court again interrupted, asking, “Are you trying to tell us, Mr. Pilkinton, that, in your opinion, she is a Communist and has been doing Communist work during the entire time you have been married to her?” To this, he answered, “I didn’t say Communist, I said undercover agent. They’re all Communists if one needed to be. I said she don’t know what she is doing. She has been hypnotized. She tried to create that impression with me. She told me some of things that happened. Naturally, me knowing what I do about the subject, I would just figure that is what happened, I took it for granted, that is the only reasonable explanation of everything that happened. She stayed out there and worked with me and did what people her age wouldn’t do. * * * ”

At another point, in telling about the first divorce case, Mr. Pilkinton said, “I introduced this last statement here because when it was brought out I was not going to pay off and give her $1000, then she went to a doctor and had him certify that she was pregnant, so the lawyer I had told me I just better pay off. He said, ‘Give me $1000.00,’ and- I will hand it over to her to take care of everything financial and all. I am not a lawyer. I know enough to know she cannot sign away her child’s rights, either born or unborn. I didn’t take him up on it at all. The lawyer said to give him the $1000.00 and he would give it to her. I thought I would take her back and she would take off for another month or two and I wouldn’t fool with this lawyer.

“THE COURT: But she fooled you and stayed with you quite a while ?
“A That is right. * * * ”

Defendant’s'testimony was that while he was in jail, after the separation, his wife sold some stock for which she received $900. Defendant claimed that his wife, the prosecuting attorney, and others conspired to have defendant placed in jail so they could steal his property. On questioning by the Court, defendant admitted that the stock was considered the joint property of defendant and his wife; that a bank held his note for over $300 and a chattel mortgage on the stock. When the plaintiff sold the stock, she paid the note at the bank. She testified that she used the balance to support the children and herself. The evidence does not support defendant’s claim that any of his property was stolen.

Defendant stated that his wife neglected her house work and stayed with him at all times. Note his evidence when questioned by the Court:

“THE COURT: During the time you ■ were going around, over the farm did you repair fences • and cut wood and do things of that nature, and other work?
“A Yes.
“THE COURT: Did she help you with the work?
“A Yes. She went through the motions sometimes. When we were sawing wood by hand she made it as hard on me as she could.
“THE COURT: Mr. Pilkinton, pulling a cross-cut saw is kind of an art anyway?
“A I don’t think so. I pulled one before I was 7 or 8 years old.
“THE COURT: But a lot of people never learn how to do that, do they ?
“A I don’t see why they couldn’t.
“THE COURT: They probably could but there are lots in my opinion that don’t know how, isn’t that true?
“A I don’t think that anyone has tried to do it that hasn’t learned it.
“THE COURT: You mean she would kind of drag her feet a little bit on the sawing ?
“A Yes.
“THE COURT: Did she help you mend fences?
“A She went every place I went and she helped me do everything I done.
“Q Did she help you feed the stock?
“A She helped me feed the stock, if we didn’t have but three cows to milk, she got out and milked one of them and I milked the other two.
“THE COURT: She did that for a period of 11 or 12 years on the farm; she helped you do everything on the farm?
“A I guess, making a case for her, she was a very good helpmate. As I said, she has been an undercover agent — ”

The trial judge was very patient with the defendant during the trial. While examining witnesses, the defendant often made statements of fact not in the form of questions. In presenting his side of the case, he testified to many matters not in issue in the case. Plaintiff’s attorney objected. The Court’s attitude may be illustrated by one of his rulings on an objection, as follows:

“THE COURT: Mr. Moore, there is no use. You are just going to have to bear with us and let him conduct his case as best we can. Although, it does violence to our rules of evidence, we will try not to prejudice anybody by doing it.”

In a divorce case, an appellate court reviews the evidence de novo. In cases wherein the evidence is conflicting and the correct result depends on the credibility of witnesses, an appellate court defers to the findings of the trial judge who had the advantage of observing the witnesses. In this case, we are in accord with the findings of the trial court. The trial judge was justified in finding that plaintiff was the innocent and injured party; further, that it was for the best interest of the eight-year-old daughter for her to be placed in the custody of her mother. McKenzie v. McKenzie, 306 S.W.2d 588, l. c. 591(3-7); Sec. 452.120, RSMo.

In his brief, defendant made numerous assignments of error. In a number of these, he repeated what he had stated in his answer and in his evidence: that the prosecuting attorney, the magistrate, and certain business firms conspired to steal his property. He also charged that the trial judge acted fraudulently in the trial of the case. These assignments are wholly groundless and unsupported by evidence.

We shall briefly dispose of other assignments without specific reference to them as they appear in the brief. Defendant complains that plaintiff did not prove that she had been divorced from her first husband. The evidence was that plaintiff had not been married before she married the defendant. He charges the trial court granted plaintiff a divorce on her uncorroborated evidence; that corroboration is required. The cases cited are Rankin v. Rankin, Mo.App., 17 S.W.2d 381, and Magruder v. Magruder, Mo.App., 31 S.W.2d 213. Those cases do not support defendant. A divorce may be granted on uncorroborated evidence. See Miskimen v. Miskimen, Mo.App., 344 S.W.2d 289, l. c. 293(2). In the case before us, there was corroboration. Defendant’s own witnesses testified that plaintiff’s daughter wore the placard on her back as she walked to and from school. This surely was an indignity.

We call attention to defendant’s evidence with reference to the reconciliation between the parties shortly after their first separation. Defendant testified that the reason he took plaintiff back was to save $1000. Note his statement: “I thought I would take her back and she would take off for another month or two and I wouldn’t fool with this lawyer.” That in itself was fraud on the part of the defendant. See Rankin v. Rankin, Mo.App., 17 S.W.2d 381, l. c. 382(1); Andris v. Andris, 343 Mo. 1162, 125 S.W.2d 38, l. c. 40(1).

Defendant asserts that the trial court should not have allowed plaintiff $25 per month for the support of the child. The evidence fully justified this allowance. In fact, defendant, in his answer and in his evidence, informed the Court he was willing to aid in the support of his child. There is no basis for his complaint.

What we have said disposes of the assignments of error pertinent to the issues before us. The decree was for the right party. The judgment of the trial court is hereby affirmed.

PER CURIAM.

The foregoing opinion of WESTHUES, Special Commissioner, is adopted as the opinion of this court, and the judgment for plaintiff is, in all respects, affirmed.

STONE, P. J., and RUARK, J., concur.

HOGAN, J., not participating.


author: CROSS, Presiding Judge.

text:
    Kermit STERNS and Geraldeen Sterns, Plaintiffs-Appellants, v. M. F. A. MUTUAL INSURANCE COMPANY, a Missouri corporation, Defendant-Respondent. Kermit STERNS, Administrator of the Estate of Carolyn Sue Sterns, Deceased, Plaintiff-Appellant, v. M. F. A. MUTUAL INSURANCE COMPANY, a Missouri corporation, Defendant-Respondent.
    Nos. 24207, 24162.
    Kansas City Court of Appeals. Missouri.
    Feb. 25, 1966.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 4, 1966.
    Application to Transfer Denied May 9, 1966.

      E. J. Murphy, Butler, for appellants.
    William J. Cason, Clinton, Harold L. Caskey, Butler, for respondent.
   CROSS, Presiding Judge.

Two separate cases are the subject of this opinion. The appeals were taken severally but were later consolidated for appeal purposes. The two cases are successive actions to recover $10,000.00 for the wrongful death of an automobile accident victim. The suits were instituted by the respective plaintiffs, acting in successively different capacities, against M. F. A. Insurance Company, as defendant, under the same uninsured motorist coverage provided by a policy of automobile insurance issued to Kermit Sterns as the named insured.

The subject deceased was Carolyn Sue Sterns, the minor daughter of Kermit Sterns and Geraldeen Sterns, his wife. On August 4, 1963, she suffered death from bodily injury accidentally sustained while riding as a passenger in a car owned and operated by one Danny Ross Green. At that time she was 18 years old, unmarried, and residing with her parents in their home.

The first suit, case No. 24,207, was filed on November 22, 1963, by plaintiffs Kermit and Geraldeen Sterns, as parents of deceased, against M. F. A. as defendant. The trial court entered a judgment of dismissal on February 28, 1964, by sustaining defendant’s motion to dismiss plaintiffs’ petition on the grounds that it “fails to state a cause of action and wholly fails to state any grounds upon which the court could grant plaintiffs any relief”.

The second action, case No. 24,162, was filed against M. F. A. on March 6, 1964, by Kermit Sterns as Administrator of the Estate of Carolyn Sue Sterns, deceased. This suit was also dismissed by the trial court by judgment entered on July 22, 1964 — also on grounds that plaintiff’s petition “fails to state a cause of action” and “fails to state grounds upon which the court could grant plaintiff any relief”.

The petition filed by Kermit and Geral-deen Sterns in the first suit, case No. 24,207, contains allegations that they were the natural parents of Carolyn Sue Sterns and that defendant M. F. A., as an authorized corporate insurance' company, issued to plaintiff Kermit Sterns a policy of automobile insurance which “contained protection for plaintiffs up to $10,000.00 against damages caused by an uninsured motorist” — by reason of the following quoted clause contained in the insuring agreement V of the policy:

“1. COVERAGE E — Uninsured Motorist Coverage. The Company will pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; * * *

Additional policy provisions pleaded in the petition are definitions of “insured” and “uninsured automobiles” (in pertinent part) as used in Coverage E, quoted respectively as follows:

“2. Definition of Insured — With respect to the insurance afforded under Coverage E the unqualified word 'insured’ means (a) the first named insured, his spouse and any relative; * * ⅝ »
“3. Definition of Uninsured Automobile. — ‘Uninsured automobile’ means (1) an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile; or (2) an automobile with respect to the ownership, maintenance or use of which the only bodily injury liability insurance policy or bond applicable thereto at the time of the accident with respect to any person or organization legally responsible for the use of such automobile was issued by an ‘insolvent' insurer,’ which means an insurer whose insolvency is declared and determined, by legal proceedings, not later than three years after the date of the accident; or (3) a ‘hit and run automobile’, * * *

The petition contains additional allegations of fact to the effect that plaintiffs’ minor daughter was killed on August 4, 1963, while riding as a passenger in an automobile driven by one Danny Ross Green and as a direct result of his negligence in operating the vehicle at excessive speed, losing control over it, running it off the highway into the ditch and causing it to overturn, and that Green was then operating an “uninsured automobile” within the meaning of the policy. Plaintiffs further allege that by reason of Green’s negligence resulting in the death of their minor child they sustained loss of her services and incurred obligation for her funeral expenses, and are “legally entitled to recover damages from Danny Ross Green for the death of their child”. The petition concludes with averments that plaintiffs gave M. F. A. due notice and proofs of loss and notice that Green was uninsured, and that M. F. A. has refused to pay plaintiffs under Coverage E although due demand was made. Plaintiffs pray judgment for $10,000.00. No copy of the policy was attached to the petition as an exhibit.

The petition filed in case No. 24,162 (the second suit) appears to be generally adapted from the petition filed by the parents in case No. 24,207, with some necessary variation, with additionally pleaded policy language, and with a copy of the policy attached to it. The pleading states that Carolyn Sue Sterns died intestate on August 4, 1963; that she was then single and without issue, and that she was survived by Kermit Sterns and Geraldeen Sterns, who as her natural parents were her heirs and distributees; also, that plaintiff. Kermit Sterns is administrator of the estate of Carolyn Sue Sterns and that as her “legal representative” he is “legally entitled to recover” from the uninsured motorist the damages sustained by Kermit and Geraldeen Sterns as natural parents of the deceased minor child. The administrator’s petition quotes the pertinent text of Coverage E (the uninsured motorist clause), the definition of “insured” and the definition of “uninsured automobile”, as those provisions are set out in the parents’ petition, but pleads two additional provi-tions, to wit, definitions of the words “relative” and “bodily injury” contained in the insuring agreements of the policy, quoted respectively as follows:

“‘Relative’ means the spouse of the named insured and any relative of the named insured or spouse who is a resident of and actually living in the same household as the named insured”.
⅜ ⅝ ⅜ # ⅜ ⅝
“ ‘Bodily injury’ means bodily injury, sickness or disease and includes death resulting therefrom at any time”.

Otherwise, the allegations of the two petitions as to issuance of the policy; negligence on the part of Danny Ross Green; the resulting accident and death of Carolyn Sue Sterns; the status of Green as an uninsured motorist; the nature of loss and damage sustained by the parents; their compliance with policy terms and requirements ; and, M. F. A.’s refusal to pay after demand, — are essentially identical. The two petitions contain identical prayers for the recovery of $10,000.00.

In the first point of appellants’ brief it is contended on behalf of plaintiffs Kermit and Geraldeen Sterns that the trial court erred in sustaining defendant’s motion to dismiss their petition filed in case No. 24,207, “because said parents’ petition did not set forth a claim for which relief could be granted”. Plaintiff parents take the position that they have pleaded sufficient facts to establish that Coverage E “does cover the death of their minor child and that payment of the benefits should be made to them as parents”.

Defendant counter-contends that the parents’ petition did not set forth a claim for which relief could be granted, primarily on the ground that the uninsured motorists clause (Coverage E) was not intended to and does not afford indemnity to any surviving husband, wife, minor child or children, or surviving parent or parents (as named in V.A.M.S., Sec. 537.080) for damages resulting from wrongful death of an insured caused by an uninsured motorist, or entitle any one of those named persons to maintain suit on the policy. De- ■ fendant concedes in oral argument that the administrator or executor of such an insured would be entitled to payment of the damages and to bring an action to recover such damages “in a proper case” ■ — meaning if none of the other persons named in the wrongful death statutes were left surviving the deceased. Defendant insists that the term “legal representative” can be interpreted only in its strict legal sense— that is, as “administrator” or “executor” —and submits that Kermit and Geraldeen Sterns -cannot be considered to be the legal representative of their deceased daughter. Furthermore, says defendant, there is no allegation in the petition to that effect.

Our preliminary examination of the issue thus presented indicates that its determination depends primarily upon the construction to be placed upon the term “legal representative” which the policy contains but does not define. It is clearly obvious (and conceded by defendant) that the policy provides coverage for wrongful death at least in cases where the decedent is represented by an administrator or executor and none of the other classes entitled to sue is in existence. This being so, is there any substantial reason to conclude that surviving husbands, wives, fathers, mothers and minor children were intentionally excluded from the policy’s protection? Are we constrained by any legal principles or precedent to translate “legal representative” only in the sense of administrator or executor and thus withhold the remedy from survivors who stand in blood relationship to the deceased? Our resolution of this question will be made under the well established and often repeated rule that since insurance or indemnity against loss is the object and purpose of the contract, the courts should construe it, when possible, so as to effectuate that purpose, and so as to uphold, rather than defeat or avoid the contract. If the language of the policy permits two rational interpretations, the construction which sustains the insured’s claim must be adopted, since the language used in the policy is that of the insurer. Soukop v. Employers Liability Assur. Corp., 341 Mo. 614, 108 S.W.2d 86, 112 A.L.R. 149; Hill v. Seaboard Fire & Marine Ins. Co., Mo.App., 374 S.W.2d 606.

What, then, is the purpose of uninsured motorist insurance, and what are the urgen-cies of public welfare that underlie its origin? For answer, we look to the brief history and development of this comparatively new type of indemnity, which has variously been designated as “Innocent Victim Coverage”, “Uninsured Motorist Coverage”, “Family Protection Coverage” and “Family Protection against Uninsured Motorists”. 48 Cal.Law Review, 1960, p, S16.

79 A.L.R.2d 1252, Annotation, “Insurance as to Uninsured Motorists” designates “uninsured motorist coverage” as “a new type of automobile insurance which came into being as the result of public concern over the increasingly important problems arising from injuries inflicted by negligent motorists who are uninsured and financially irresponsible.” The annotator further states in reference to the coverage: “Designed to further close the gaps inherent in motor vehicle financial responsibility and compulsory insurance legislation, this insurance coverage is intended, within, fixed limits, to provide financial recompense to innocent persons who receive injuries, and the dependents of those who are killed, through the wrongful conduct of motorists who, because they are uninsured and not financially responsible, cannot be made to respond in damages”. (Italics supplied.)

We learn from an extensive article entitled “Public Responsibility and the Uninsured Motorist” by Joseph P. Murphy and Ross D. Netherton, 47 ■ Georgetown Law Journal 700, that:

“The simple device of providing insurance against uncollectible automobile accident claims was first proposed during the legislative debate in New York in 1954. It was then called ‘The Voluntary Plan’ and it was offered by the insurance industry as a way for the insured motorist who was involved in an accident with an uninsured driver to put himself in the same position as if he had been injured by an insured motorist. Since 1954, this type of coverage, sold as an additional endorsement on a regular policy of automobile liability insurance, has been adopted as an optional feature by most automobile liability carriers throughout the United States. It is now generally called ‘Uninsured Motorist Coverage’, or sometimes ‘Family Protection Insurance’.
“Protection under this coverage is in the same amounts as the minimum limits required by state financial responsibility laws and applies to all sums which the insured shall be legally entitled to recover under the law. Protection sometimes is limited to death and personal injury, and sometimes covers death, personal injury and property damage.
* ⅜ * * * *
“Uninsured Motorist Coverage was first proposed as a counter-measure to compulsory insurance and state-operated unsatisfied judgment funds. * * *
“The offer of voluntary Uninsured Motorists Coverage did not divert the drive for compulsory insurance in New York as its proponents had at first hoped. The rapid adoption of this form of coverage, however, in the competitive insurance industry and its acceptance by the motoring public logically led to the thought that it would be desirable to make Uninsured Motorist Coverage a standard feature of every policy of automobile liability insurance. Thus, it was argued, at least all insured motorists would have protection against injury and damage caused by financially irresponsible motorists.
“New Hampshire in 1957 was the first state to implement this suggestion. Under its law, the Uninsured Motorist Coverage was required only for claims arising from death or personal injury. In 1958, New York and Virginia added mandatory Uninsured Motorist Coverage to their laws in connection with the establishment of industry-operated unsatisfied judgment funds. In New York, coverage was limited to death and personal injury claims ; Virginia, however, also included property damage coverage”.

In 12 Drake Law Review, 1962, p. 119, the origin of uninsured motorist coverage is reviewed by Edward J. Reasor, as follows:

“There has long been felt a desire to protect innocent victims from the financially irresponsible motorist. The need became apparent only a few years after the arrival of the automobile and its mass distribution. Some early state legislation attempted to solve the problem by enforcement of compulsory insurance.
“ * * * The insurance carriers, although sympathetic toward the victim of an uninsured motorist, for the most part, opposed state imposed programs of compulsory insurance and public Unsatisfied Judgment Funds. In an effort to avoid this step toward ‘social welfare insurance’, the National Bureau of Casualty Underwriters and the Mutual Insurance Rating Bureau drafted an uninsured motorist endorsement to the family automobile policy. The uninsured motorist provision then became an alternative to compulsory insurance. * * * Currently, * * * New Hampshire, Virginia, New York, South Carolina, California and Florida require all liability carriers to issue an uninsured motorist endorsement on policies sold within the state. In Iowa, the uninsured motorist protection offered by casualty insurers is optional coverage to the policyholder.
“Under the Standard Form version of the uninsured motorist coverage the insurer agrees to pay the insured all sums that he shall be entitled to recover as damages for bodily injury sustained by the insured when caused by an uninsured automobile, but, except for provisions used in North Carolina, South Carolina, and Virginia, does not agree to pay for property damage. The insurer agrees:
‘To pay all sums which the insured or his legal representatives shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury * * * including death * * * sustained by the insured, caused by accident, and arising out the ownership, maintenance or use of such uninsured automobile; * * * ’ ”

Discussing the question “What is recoverable”, Reasor concludes:

“It would seem that the insured can recover all that he normally would recover in an action against the wrongdoer, for bodily injury, up to the limits of his uninsured coverage. This protection is intended to provide financial recompense to innocent persons who are injured and to dependents of those who are killed because of the wrongful conduct of uninsured motorists”. (Italics supplied.)

Reasor next discusses the specific question before this court as it relates to a surviving wife, as follows:

“* * * (T)he policy, in outlining damages for bodily injury for which there is recovery, does include payment for death resulting from the accident, if sustained by the insured, and defines insured, in part, to include the named insured and any relative. Thus, the wife who often will be the person maintaining a wrongful death action may argue (1) that she is a legal representative entitled to recover for the death sustained by her husband, the insured, or (2) that she is an insured, because she is a relative, and has sustained damages by the death of her husband. Although the policy does promise ‘to pay all sums which the insured or his legal representative shall be legally entitled to recover’ rather than the broader words of normal coverage, ‘to pay on behalf of the insured all sums * * * sustained by any person’, there is no specific indication that coverage was meant for survival actions but not for wrongful death claims. As the policy promises ‘to pay all sums * * * including death’, it is at least ambiguous. Insurance contracts should be liberally construed to accomplish the purpose or object for which they are made. When insurance contracts contain ambiguities, the construction least favorable to or more strongly against the party who prepared the contract should be adopted. It is questionable whether the provisions of the policy, including death as damages, should be limited to recovery under the Survival of Action type of law, while recovery under Wrongful Death Statutes is denied. This question must, of course, be litigated before a conclusive answer can be given, but it would appear that recovery may be had in Iowa for wrongful death under the provisions of the uninsured motorist protection”.

A summary of the general nature and purpose of uninsured motorist insurance is contained in 7 Am.Jur.2d, Automobile Insurance, Sec. 135, pp. 460-461, which is generally consonant with and reflects the conclusions reached by previously quoted authority. Of especial interest is the following statement quoted from the cited text: “ * * * The purpose of the statute making uninsured motorist coverage compulsory, it has been said, is to give the same protection to a person injured by an uninsured motorist as he would have had if he had been injured in an accident caused by an automobile covered by a standard liability insurance policy”. (Emphasis supplied.)

The consistent tenor of legal authority we have examined, including the herein-above quoted, and the clear intendment of the compulsory statutes therein referred to, are that uninsured motorist coverage in its standard form includes indemnity to such survivors of deceased victims of uninsured automobiles as are legally entitled to sue for damages under wrongful death statutes —without regard to whether the coverage is provided under compulsion by statute or by voluntary contract.

Coverage E of the policy before us is in standard form and is essentially identical with the policy form written and promulgated by the National Bureau of Casualty Underwriters referred to and quoted here-inabove. It is our view that this coverage was intended to provide indemnity for damages resulting from an insured’s wrongful death caused by an uninsured motorist, payable to whatever person or persons may be entitled to bring an action under provisions of V.A.M.S., Sec. 537.080, whether spouse, child or children, parent or parents, or administrator or executor. We will so rule unless compelled by arbitrary standards of interpretation to hold that the term “legal representative” includes only administrators or executors and excludes all other classes of persons.

The term “legal representative” has no fixed meaning in the law and does not have the same signification in every case, since its import varies according to the circumstances of its use. Black’s Law Dictionary, 2d Ed., p. 1020, defines legal representative as follows:

“Legal representative. A person who, in the law, represents the person and controls the rights of another. Primarily the term meant those, artificial representatives of a deceased person, the executors and administrators, who by law represented the deceased, in distinction from the heirs, who were the ‘natural’ representatives. But * * * the phrase has lost much of its original distinctive force, and is now used to describe either executors and administrators or children, descendants, next of kin, or distributees. Moreover, the phrase is not always used in its technical sense nor always with reference to the estate of a decedent; and in such other connections its import must be determined from the context; so that, in its general sense of one person representing another, or succeeding to the rights of another, or standing in the place of another, it may include an as-signee in bankruptcy or insolvency, an assignee of a mortgage, a grantee of land, a guardian, a purchaser at execution sale, a widow, or a surviving partner.”

Also see Black’s Law Dictionary, 4th Ed., p. 1041. Reference to 24 Words and Phrases, 594, “Legal Representative”, and 52 C.J.S. p. 1041, Legal (Phrases), where many definitions of the term are collected, clearly indicates the great variety of meanings which have been given to it.

A Missouri decision bearing very materially on the immediate question is found in Nudelman v. Thimbles, Inc., 225 Mo.App. 553, 40 S.W.2d 475. The plaintiff there sued for personal injury damages and obtained a judgment against a defunct corporation and individual defendants who constituted its last board of directors. Plaintiff’s case against the individuals was based on the theory that they were subject to suit as statutory trustees and as “legal representatives” of the defunct corporation, within the purview of Sec. 3280 R.S.1927 (present V.A.M.S. Sec. 537.020), which provided that actions for personal injury would not abate by reason of the death of the person against whom such actions have accrued, but should survive against the person, receiver or corporation liable for such injuries, and “his legal representatives”. The individual defendants contended that the term “legal representatives” has a technical meaning and could include only executors and administrators, and therefore would not include them as corporate directors. The court rejected the argument, ruled that the officers and directors of a defunct corporation were its “legal representatives” charged with the duty to wind up the corporation’s affairs, and held that the action survived against the complaining defendants “as the statutory trustees and legal representatives of the company”. In affirming the judgment, the court said, “We concede that, in legal usage, the term legal representatives’ ordinarily refers to executors and administrators, but that is not the only sense in which it may be employed. To the contrary, the meaning to be attached to the term in a particular instance will be determined from the context, and the intent with which the expression is used, and, if those considerations are such as to indicate a meaning different from the ordinary one, the courts will not hesitate so to construe it. 36 C.J. 978”.

This court held to the same effect in Wells v. Bente, 86 Mo.App. 264, where we ruled that the grantees of a mortgagor were included within the meaning of the words “personal representatives”. (“Personal representative” is generally synonymous with “legal representative” and subject to the same interpretation. Black’s Law Dictionary, 2d Ed., p. 1021.) In so holding we said: “It will be noticed that the statute protects the tenant of the ‘mortgagor or his personal representatives’. Plaintiff insists that the words, ‘personal representatives’, means executors or administrators. That is the general and usual meaning. But those words are not necessarily of one meaning. Like many others in the English language they may be given different interpretations, depending upon the sense in which they are used, whether that be in statute, will, or deeds. Thus, the words sometimes mean ‘heirs’. Ewing v. Shannanhan, 113 Mo. 188 [20 S.W. 1065] ; Ellstroth v. Young, 83 Mo. App. 253; Davies v. Davies, 55 Conn. 319, [11 A. 500.] The words may include ‘assigns’ within their meaning. [New York Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591, 6 S.Ct. 877, 29 L.Ed. 997.]

“When the same words have different meaning, that meaning should be preferred which will not be wholly unreasonable, as shown by the object, and the connection in which they are used. It is worthy of remark that in the discussion of this question the authorities constantly refer to whether this or that meaning contended for would be reasonable. Applying the foregoing to the statute in question, we are satisfied that the object of the statute was to protect the tenant who had the growing crop at the time of the sale of the land, whether he be the tenant of the mortgagor himself, or the tenant of his grantees; and that therefore the mortgagor’s grantees, immediate or remote, were included within the meaning of the words, ‘his personal representatives’ ”.

The New York case, Dearborn v. Peugeot Auto Import Co., 170 App.Div. 93, 155 N.Y.S. 769, 771, involved a section of the 'Workmen’s Compensation Act which provides that the “legal representative” of .an injured employee, who dies as the result of the injury, may optionally elect to claim compensation under the act or maintain an action in the courts for damages. The court held that “legal representative” means the dependent widow and not the executor or administrator.

In Seaboard Air Line Ry. v. Moseley, 60 Fla. 186, 53 So. 718, 719, the father of a minor child brought a wrongful death action under a Florida statute providing that where the death of a minor child is caused by wrongful act or negligence of a corporation, the father “as the legal representative of such minor child” may sue for loss of the child’s services and for the mental suffering of the parent or parents. The Supreme Court of Florida held that the damages authorized are personal to the parents and an action therefor should be by the parents personally. The court further said that the administrator has no interest in or right to such recovery — the term “legal representative” having reference to the parties benefited by the rights conferred and not to the administrator or executor of a decedent.

In accordance with all the foregoing authority we will perform our duty to select and apply a meaning of “legal representative” that would be fair and reasonable, and consistent with the entire context of the language in which the words are employed, and that would effectuate the purpose of Coverage E rather than defeat it. We will not resolve the question by construing ambiguous, technical language in favor of the insurer who wrote the policy, and in so doing, nullify its clearly apparent intendment. We have heretofore stated that the intended purposes of uninsured motorist insurance, such as is provided by Coverage E, include indemnification of survivors and dependents of insureds who suffer bodily injury resulting in death by the fault of uninsured motorists. We uphold that purpose by declaring that the term “legal representative” used in the policy, as it applies to a person or persons claiming damages for a wrongful death, includes all persons who may have the right to bring an action under V.A.M.S., Sec. 537.080, and that its meaning is not restricted to an administrator or executor. It is our specific ruling here that under the facts pleaded by plaintiffs’ petition and the legal effect of Coverage E, the plaintiff parents shall be considered as the “legal representative” of the deceased unmarried child. Furthermore, we hold that the facts pleaded in their petition are tantamount to allegations that they are the “legal representative’’ of decedent within the legal contemplation of Coverage E.

We are supported in this ruling by a recent decision of the Florida appellate court in Zeagler v. Commercial Union Insurance Co. of N. Y., 166 So.2d 616 (decided in 1964). This decision was affirmed in all respects by the Supreme Court of Florida. Commercial Union Insurance Company of N. Y. v. Zeagler, 172 So.2d 450 (decided March 3, 1965). The case is precisely in point. Commercial as insurer issued its Family Combination Policy to one Zeagler insuring him against uninsured motorists. He was killed in an accident with an uninsured motorist. The widow asserted her claim under the Florida wrongful death statute as widow of the deceased — not as an administratrix. The insurer made the same contention asserted by M. F. A. in the instant case — that only a legal representative (administratrix) could prosecute the action. The court rejected the insurer’s defense (as we have done) and held that since the purpose of the wrongful death provision is obviously to protect the insured’s family, the widow was entitled to sue as surviving spouse and recover under the policy. The court reasoned:

“Under § 768.02, Fla.Stat., F.S.A., a wrongful death action cannot be maintained by the legal representative of the deceased if, at the time of death, the deceased had a living spouse or other dependents. The right is possessed only by her or the other dependents. Insurance policies are generally construed liberally in favor of coverage. See: National Casualty Co. v. General Motors Acceptance Corp., Fla.App.1964, 161 So.2d 848. The purpose of the wrongful death provision is obviously to protect the insured’s family. Under the appellee’s theory the plaintiff-appellant cannot maintain an action even though a surviving spouse, and contends that only a legal representative could prosecute same. To follow this reasoning to a logical conclusion, if all classes enumerated in § 768.02, Fla.Stat., F.S.A., were deceased at the time of the wrongful death, then the claim would revert to the legal representative which, in effect, would permit collection only subsequent to all the prior classes referred to in the statute [for whose benefit same was enacted] had become extinct. We refuse to adopt this reasoning and specifically hold that the surviving spouse has a right to recover for the wrongful death of the insured which was occasioned by the wrongful activity of an uninsured motorist”.

Defendant directs another complaint against the parents’ petition (con-cededly minor) : that the pleading is insufficient because it contains no allegation that the company is obligated to pay damages for death. This contention is predicated on the circumstance that the parents’ petition, although containing the text of Coverage E which specifies “bodily injury”, does not include the policy definition of “bodily injury” as meaning “bodily injury, sickness or disease and includes death resulting therefrom at any time”. This contention has no merit. “The word ‘injuries’ is a generic term, and it naturally includes injuries * * * that are fatal, and those that are not fatal”. Standard Life & Accident Ins. Co. v. McNulty, 10 Cir., 157 F. 224, 225. Also see Putnam v. Savage, 244 Mass. 83, 138 N.E. 808, 810, where it was held that death resulting from corporal impact with the living body, caused by another’s negligence, constitutes “bodily injury”. The court said: “Death of a person by the negligence of another can result only from ‘damage of a physical character’ or a ‘bodily injury’. Corporal impact with the living body ordinarily accompanies and is essential to death caused by negligence. Death of the plaintiff’s intestate in the case at bar was caused by the negligence of the original ‘defendant in so operating an automobile as to run down the deceased’. That was a ‘damage to the person’ of the plaintiff’s intestate as well as ‘bodily injury’ and ‘damage of a physical character’. It was said in Moe v. Smiley, 125 Pa. 136, at page 141, 17 Atl. 228, at page 229 (3 L.R.A. 341) : ‘It is idle to say that, when a man is killed by unlawful violence, it is not an injury to his person’ ”. The obligation of defendant to pay damages for the death of Carolyn Sue Sterns is implicit in its agreement to pay damages “because of bodily injury”, as contained in Coverage E which the parents pleaded in their petition. See the recent decision in M. F. A. Insurance Co. v. Lovins, 248 F.Supp. 108, reported December 15, 1965.

Looking finally to the petition in Case No. 24,207, we note that it contains allegations showing the issuance of the contract and that it was in effect when the claim arose; the text of the coverage relied upon which obligates the company to pay damages for wrongful death caused by an uninsured motorist; a definition of the “insured” and allegations of fact to bring the deceased Carolyn Sue Sterns within policy coverage as the subject of the claim; allegations of her wrongful death from the fault of an uninsured motorist, establishing loss within the policy coverage; allegations sufficient to establish plaintiffs’ right to recover damages under the wrongful death statute as decedent’s legal representative; allegations showing performance of essential conditions by claimants, demand of payment by plaintiffs and nonpayment by the defendant; also, appropriate demand for judgment. The pleading is therefore sufficient as a claim for relief within the requirements of Rule 55.06 V.A.M.R., inasmuch as it contains “a short and plain statement of the facts showing that the pleader is entitled to relief” and “a demand for judgment for the relief to which he deems himself entitled”. See 20A Appleman, Insurance Law and Practice, Sec. 11826, (page 207), and Missouri cases cited in Note 44; 16 Missouri Digest Insurance, (1) (2). We necessarily rule that the dismissal of the action was erroneous.

In reaching these conclusions we have not found it necessary to take into account or consider the merit of contentions made by the plaintiff parents (1) that they might be considered to be legal representatives of decedent under the effect of the policy’s loss payable clause which provides (in part) that “any amount due hereunder is payable * * * to the insured, or * * * if the insured is deceased * * * to a person authorized by law to receive such payment or a person legally entitled to recover the damages which the payment represents”, and (2) that although Carolyn Sue Sterns was the “insured” whose bodily injury and death gave rise to the claim, her parents may be considered to be additional “insureds” under the policy terms and, as such, (not as her “legal representative”), recover for the death loss. Consequently defendant’s suggestions and argument directed against these contentions have no relevance.

The second point of appellants’ brief is a submission — only in the alternative, and in the event we rule against the sufficiency of the parents’ petition — that the administrator’s petition states a claim for which relief could be granted. Plaintiff administrator states “with all candor” that in his opinion the parents of Carolyn Sue Sterns are the proper parties to bring the action for the damages resulting from her death, but that if our holding is otherwise, then the administrator should be permitted to recover. Defendant M. F. A. submits that the administrator is not “legally entitled to recover” under the policy because the wrongful death statute does not extend him the right to maintain an action when there are surviving parents. We encounter no difficulty in ruling this assignment. The right of an administrator to sue for wrongful death emanates only from V.A.M.S. Sec. S37.080 and it never ripens if there are surviving parents of the decedent. Plaintiff administrator has no cause of action in the present instance and he has stated none in his petition. The trial court properly dismissed the action.

Accordingly, we reverse the judgment in Case No. 24,207 and remand that cause for further proceedings. The judgment in Case No. 24,162 is affirmed.

HOWARD, J., concurs.

BLAIR, J., not participating.

      . Citing American Universal Ins. Co. v. Ranson, 59 Wash.2d 811, 370 P.2d 867, 868. In that case the Supreme Court of Washington held: “It appears that this type of insurance coverage is of recent origin. It is intended to provide financial recompense to innocent persons who are injured and to dependents of those who are killed because of the wrongful conduct of uninsured motorists”.

      . The New York Motor Vehicle Indemnification Corporation Law, enacted in 1958, Laws 1958, e. 759, establishing provisions for compulsory uninsured motorist coverage, contains the following statement of purpose quoted in part as follows: “The legislature finds and declares that the motor vehicle financial security act. as enacted in nineteen hundred fifty-six which requires the owner of a motor vehicle to furnish proof of financial security as a condition to registration, fails to accomplish its full purpose of securing to innocent victims of motor vehicle accidents recompense for the injury and financial loss inflicted upon them, in that the act makes no provision for the payment of loss on account of injury to or death of persons who, through no fault of their own, were involved in motor vehicle accidents caused by (1) uninsured motor vehicles (of various defined classes) * * *. The legislature determines that it is a matter of grave concern that such innocent victims are not recompensed for the injury and financial loss inflicited upon them and that the public interest can best be served by closing such gaps in the motor vehicle financial security act through the incorporation and operation of the motor vehicle accident indemnification corporation”. To effectuate the foregoing stated purpose the New York statute further provides: “No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any natural person arising out of the ownership, maintenance and use of a motor vehicle by the insured shall be issued or delivered by any authorized insurer upon any motor vehicle then principally garaged or principally used in this state unless it contains a provision whereby the insurer agrees that there will be paid to the insured, * * ⅞ all sums, (subject to maximum limitations) which the insured or his legal representative shall he entitled to recover as damages from an owner or operator of an uninsured motor vehicle, * * *

      . Also see "Ward, 9 Buffalo UEtev., 1959-1969, p. 285, “The Uninsured Motorist”. Hentemann, 12 Cleveland-Marshall L.Rev., 1963, 66, “Uninsured Motorist Coverage”. 48 California L.Rev., 1960, p. 516, Comments, “Uninsured Motorist Insurance”. Loiseaux, 88 Texas L.Rev., 1959, p. 154, “Innocent Victims 1959”.

      . The coverage was as follows: “Coverage J — Uninsured Motorists (Damages for Bodily' Injury): To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an in-insured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’ sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile; ⅝ * ⅜ ”.

      . Florida St.Ann., Sec. 768.02 reads in. part as follows: “Every such action shall be brought by and in the name of the widow or husband, as the ease may be, and where there is neither widow nor husband surviving the deceased, then the minor child or children may maintain an action; and where there is neither widow nor husband, nor minor child or children, then the action may be maintained by any person or persons dependent on such person killed for a support; and where there is neither of the above classes of persons to sue, then the action may be maintained by the executor or administrator, as the case may be, of the person killed”.