author: HOWARD, Presiding Judge.

text:
    KANSAS CITY, Respondent, v. Patsy PLUMB, Appellant.
    No. 24667.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 2, 1967.
    Application to Transfer Denied Nov. 13, 1967.

      Robert G. Duncan, Pierce, Duncan, Bei-tling & Shute, Kansas City, for appellant.
    Herbert C. Hoffman, City Counselor, Charles A. Lewis, Richard Unruh, Asst. City Counselors, Kansas City, for respondent. . •
   HOWARD, Presiding Judge.

This is an appeal from a judgment of the Circuit Court of Jackson County, Missouri, finding appellant guilty of a violation of an ordinance of Kansas City, Missouri, in a case on appeal from the municipal court. Appellant will be referred to as defendant and respondent as the city.

Defendant was charged with the offense of soliciting for immoral purposes as described by Section 47.070 Revised Ordinances of Kansas City, Missouri, 1956, which ordinance reads as follows: “No person shall solicit any other person upon the streets, sidewalks or other public places of the city, or in or about any tavern, saloon, tap room, bar, rooming house or hotel, for the purpose of prostitution or sexual intercourse for hire, or for any act of sexual perversion. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor.”

The city’s evidence consisted solely of the testimony of police officer Thomas Norman. The defendant offered no evidence. Norman testified that on January 8, 1966, he had been assigned to investigate vice activities in Kansas City. He had been in several places and while waiting on a corner for a red light to change he struck up a conversation with an unnamed man concerning how cold the night was. The two of them then proceeded to the new Frederic Hotel, at 312 East 9th Street, Kansas City, Missouri, where Norman and the other man each registered in separate rooms. The other man “made arrangements for women” with an unnamed bellhop. Norman and the other man then went upstairs to their respective rooms. About twenty minutes later, Mr. Hurse, a bellhop at the hotel, appeared in Norman’s room and advised that the other bellhop had gone off duty and that he (Hurse) had taken over.

Norman then “asked him what the delay was on the girl, and he said he would send one up.” About twenty minutes later defendant knocked on officer Norman’s door, which was slightly ajar and entered the room and “asked if I was the one that wanted the entertainment.” Officer Norman was partly unclothed. They both sat on the bed, which appears to have been the only thing in the room to sit on, and she said that “she would go a straight lay for $20, a half and half for twenty-five, and a French lay for thirty-five, act of prostitution.” Officer Norman then placed defendant Plumb under arrest. Defendant did not take off any of her clothing, did not lay down on the bed, and did not engage in any act of prostitution or perversion.

On this evidence the circuit judge, trying the case without a jury, found defendant guilty of the offense of solicitation and imposed a sentence of sixty days at the municipal farm and $100.00 fine. From such sentence, defendant has duly appealed.

On this appeal, defendant challenges the sufficiency of the evidence to support the judgment and sentence. The main burden of this challenge seems to be that the words of defendant do not carry any connotation of a suggestion or offer to engage in an act of prostitution or perversion, when such words are limited to the meaning ascribed to them by our standard dictionaries. This is so, but it is apparent that defendant spoke in the vernacular of her trade.

The offense of soliciting does not require any particular form of words, and, in fact, may be committed by gesture alone, or any other act which, from all the circumstances, conveys to the one solicited an offer to engage in an act of prostitution or perversion. See City of St. Louis v. Long, Mo.App., 395 S.W.2d 481; Kansas City v. Martin, Mo.App., 369 S.W.2d 602; Curran v. United States (D.C.Mun.App.) 52 A.2d 121; State v. Render, 203 Iowa 329, 210 N.W. 911. From the evidence as heretofore summarized, it is plain to anyone who has had any connection with law enforcement that the defendant was, in fact, offering to commit various acts of prostitution or perversion for a sliding scale of prices. It can not be questioned that such testimony was so understood by the trial judge, who, in this jury waived case, was the trier of fact. On the basis of the foregoing authorities, such evidence was amply sufficient to support the charge against defendant and the judgment and sentence entered by the court.

Defendant further contends that her conviction should be reversed on the basis that she was not guilty as a matter of law because she was entrapped by the police officer. In Missouri, as in other states and in the United States courts, entrapment is recognized as a defense, even though the facts proved against the defendant may show that he committed all acts necessary to constitute the offense denounced by the statute or ordinance. The cases are in agreement that where the criminal intent originates with the police officer, rather than with the defendant, and where, by his acts, suggestions and entreaties the officer procures the defendant to commit the offense, then the defense of entrapment may prevent a conviction. However, on the other hand, where the criminal intent originates in the mind of the defendant, and the police officer merely furnishes an opportunity for the defendant to commit the offense, then, and in that event, the defense of entrapment is not available to the defendant. It is sometimes said that if the defendant would not have committed the offense, but for the acts of the officer, then the defense of entrapment is available, but that if the defendant is ready and willing to commit the offense, and the officer only presents the opportunity, then no defense of entrapment will lie. See State v. Taylor, Mo., 375 S.W.2d 58; State v. Ward, 361 Mo. 1236, 239 S.W.2d 313; State v. Decker, 321 Mo. 1163, 14 S.W.2d 617, and cases cited therein.

Here the evidence shows that the officer posed as a willing buyer and that as a result of such pose, the defendant, a willing seller, approached the officer and offered her body for sale. In such circumstances, as is shown by the foregoing authority, no defense of entrapment will lie. It is sometimes asserted that the defense of entrapment can be interposed as a matter of law, however, in almost all instances the courts have held that the evidence makes an issue for the trier of fact as to whether or not the defense of entrapment is applicable. In the case at bar the defense of entrapment was presented to the court, sitting without a jury as the trier of fact, by motion to dismiss at the close of plaintiff’s evidence (which, in fact, was the close of all the evidence), and such trier of fact found against the defendant on such issue. This conclusion is amply supported by the evidence and we will not disturb it.

Lastly, defendant contends that the circuit court lacked jurisdiction to try and determine this cause because she was originally tried in the Kansas City municipal court and there discharged and the cause was appealed by the city to the circuit court. Defendant contends that the city has no right of appeal from a decision of the municipal court acquitting the defendant on the merits of the case, and that when she was tried again in circuit court it amounted to double jeopardy.

The burden of defendant’s argument is that this is a criminal case and, since the constitution and statutes permit an appeal by the state in a criminal case only where the indictment or information is held insufficient or the judgment is arrested or set aside, that such limitation of the right to appeal applies equally to the City of Kansas City, and that no appeal by the city lies where the defendant has been discharged in municipal court after a trial on the merits.

This, of course, misconceives the nature of an action for violation of a city ordinance. The holding that such cases are civil, not criminal, has been universally adhered to by our courts from time immemorial. The matter of violation and enforcement of municipal ordinances is considered in ‘§=’632-645, inclusive, of the Missouri Digest, under the subject of Municipal Corporations. Almost every case listed under these key numbers sets out and determines that such actions are civil and not criminal in nature. Consequently, defendant’s argument fails on this basis alone. The matter of appeal in Missouri does not derive from common law but is purely statutory in nature.' Kansas City being a city under special constitutional charter, we look to such charter to determine whether or not the city has a right to appeal in such instance. Section 399 of the charter provides: “Appeals may be taken from the municipal court to the circuit court of Jackson County, Missouri, in the manner and upon the conditions prescribed by ordinance.” Section 35.-240 Revised Ordinances of Kansas City, 1956, provides: “Upon judgment of acquittal of any defendant by the court, if the prosecuting officer of the city deems it for the best interest of the city that such case be appealed, the attorney shall * * * ” take the necessary steps to perfect such appeal. This is obvious and sufficient authority for appeal by the city.

As far back as 1878 our Supreme Court in the case of Kansas City v. Clark, 68 Mo. 588, held that under appropriate charter provisions the City of Kansas City had a right to appeal from a judgment of acquittal of one who is charged with violation of the city ordinance. Such holdings have not been limited to the City of Kansas City but it is general law in the State of Missouri that actions against an individual for violation of a city ordinance are civil in nature, and that the city, as well as the defendant, has a right to appeal, where such appeal is properly authorized by statute. See among the many cases, City of St. Louis v. Marchel, 99 Mo. 475, 12 S.W. 1050; City of St. Charles v. Hackman, 133 Mo. 634, 34 S.W. 878; Randol v. Kline’s Inc., 322 Mo. 746, 18 S.W.2d 500; Town of Kirkwood v. Autenreith, 11 Mo.App. 515; City of Springfield v. Starke, 93 Mo.App. 70; City of Carthage v. Bird, 146 Mo.App. 325, 129 S.W. 1054; City of Clayton v. Nemours, 237 Mo.App. 167, 164 S.W.2d 935; City of St. Louis v. Mueller, Mo.App., 313 S.W.2d 189; City of St. Louis v. Penrod, Mo.App., 332 S.W. 2d 34 and City of St. Louis v. Mikes, Mo.App., 372 S.W.2d 508.

Defendant claims that this appeal is invalid because the city did not post bond as required by said Section 35.240 of the Revised Ordinance of Kansas City and Section 82.220 RSMo 1959, V.A.M.S. This, of course, overlooks the fact that Supreme Court Rule 37.79, V.A.M.R. applying to municipal and traffic courts, specifically provides: “No bond shall be required,of a municipality upon an appeal by the municipality.” Since this deals with the manner and procedure for taking appeals and not with the right of appeal, this provision of the rule obviates the necessity of posting bond by the city as theretofore required.

Defendant also contends that the charter provision and ordinance authorizing an appeal by the city are contrary to the general law of the State of Missouri and therefore can not have force and effect. As heretofore pointed out the general law referred to by defendant applies only to appeals by the state in criminal matters and in no wise applies to the matter here under consideration. It should also be noted that appeals by the city are specifically authorized by statute for first class cities in Section 98.040, for second class cities in Section 98.280, for third class cities in Section 98.-460 and for fourth class cities in Section 98.630, (all sections refer to RSMo 1959 and V.A.M.S.). Thus the Kansas City charter and ordinance provisions are compatible with the general laws of Missouri on the subject.

What we have said disposes of the right of the city to appeal, but one matter requires further comment. The brief of the city relies exclusively on Supreme Court Rule 37.78, applying to municipal and traffic courts, for authorization of this appeal by the city. This rule reads: “A defendant and the municipality shall be entitled to appeal from a judgment to the circuit court of the county or such other court having jurisdiction of such appeals within the time and in the manner provided by law.” We must remember that this rule was promulgated by our Supreme Court pursuant to the authority contained in Section 5 of Article V of the Missouri Constitution of 1945, V.A.M.S. This article specifically provides: “The rules shall not change substantive rights, or the law relating to * * * the right of appeal.” Thus, under this constitutional provision, the Supreme Court can not by rule change the law granting the right to appeal. This the court has not purported to do, as was pointed out by our Supreme Court en banc in State ex rel. Garnholz v. La Driere, 299 S.W.2d 512, where the court was considering its rule concerning appeals from magistrate courts in criminal cases. Such rules can not and do not change the right of appeal and such right exists only if and when the right to appeal is granted by law, independent of the rule. As we have heretofore pointed out, this appeal by the city is so authorized.

Finding no error in the proceedings below, the judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: HOGAN, Judge.

license: Public Domain

text:
    J., Plaintiff-Appellant, v. K., Defendant-Respondent.
    No. 8587.
    Springfield Court of Appeals. Missouri.
    Sept. 21, 1967.

      Raymond S. Roberts, Roberts & Roberts, Farmington, for plaintiff-appellant.
    David L. Colson, Smith & Colson, Farm-ington, for defendant-respondent.
   HOGAN, Judge.

This is a divorce case. The wife, to whom we shall refer simply as J., filed the action on grounds of general indignities. K., the defendant husband, responded by filing a general denial without any request for affirmative relief. Finding that the plaintiff was not an innocent and injured party, the trial court refused to enter a decree of divorce, and the plaintiff has appealed.

The plaintiff, 26 years of age at trial time, and the defendant, whose age is not shown, were married October 4, 1958. They are the parents of two small daughters, one five years old and the other about three. At the time the parties were married, the defendant was “just going into the Army.” He is now an officer serving in the Army, and much of their married life has been spent at various domestic and overseas Army posts.

The plaintiff testified to a number of episodes which occurred at various times, the net effect of her evidence being that the defendant had abused and neglected her, had unjustly criticized her housekeeping, had associated improperly with other women, and on occasion had cursed her and had called her a “bitch” and a “prostitute.” There is no need to repeat all this evidence in detail, for it is in effect conceded that at the time the events we are about to relate happened the defendant had given the plaintiff cause for divorce if she was an “innocent” party.

Following a period of duty at Ft. Ben-ning, Georgia, apparently in 1964, the defendant was given an “undesirable assignment” in Korea. The plaintiff wanted to remain at Columbus, Georgia, where the parties had been living, but the defendant insisted that she return to Missouri where her parents lived. By January or February in 196S the plaintiff “ * * * was tired * * * had worked hard, and * * * thought a vacation would be fine,” and consequently she left Missouri for Colorado Springs, Colorado. Whether or not by prearrangement, she contacted one M., a man whom she had known before her marriage and whom she described as being “trustworthy” and “fine,” and remained at M.’s motel for “six or seven days.” At the end of this period, the plaintiff returned to Missouri, having advised M. that she would return and that he should obtain more commodious quarters because she was going to bring her children. Plaintiff then remained in Missouri for about a month, returned to Colorado Springs, and moved into M.’s apartment with her children. On this second trip, the plaintiff remained in Colorado “approximately a month.” The plaintiff vigorously maintained that her relationship with M. was conventional and proper, and insisted that she stayed with M. only as his “guest.” After the plaintiff had been in Colorado Springs for about a month on this second visit, M. was transferred temporarily to Amarillo, Texas, and the plaintiff followed him there with her children. After she had been in Amarillo for two or three days, the defendant returned unexpectedly from Korea. At this juncture, the plaintiff was arrested on her mother’s complaint, and the defendant traveled to Amarillo to bring the plaintiff and his children back to Missouri.

Plaintiff then advised the defendant that she no longer wanted to live with him, and wanted a divorce. She did return to Missouri, having fully informed her husband of her affair with M., but at once consulted an attorney about a divorce. The attorney she consulted advised her to attempt a reconciliation with the defendant, and at plaintiff’s request the attorney obtained the name of a psychiatrist in St. Louis with whom both the plaintiff and defendant consulted on several occasions in an attempt to solve their marital problems. Upon the advice of her attorney and her physician, and acting upon the defendant’s profession that he would not repeat the indignities which he had previously committed, the parties became reconciled and resumed cohabitation at Ft. 'Leonard Wood where the defendant was stationed.

The attempted reconciliation was unsuccessful. The plaintiff had told her husband that she would not stay with M. again and would not contact or talk to him again, but as appears in the record she did remain in contact with M. by telephone, though she assured the trial court that M. called her without encouragement on her part, and that he called only because “he was interested in my welfare, I guess.” In any event, and whatever their motivation, it was brought out that plaintiff and M. have conversed by long distance telephone some 20 times after she resumed cohabitation with the defendant, after she represented to the defendant that she would have no further contact with M., and it appears that plaintiff neither discouraged M. nor advised the defendant that he had called. The defendant also resumed his offensive conduct and the parties finally separated on November 18, 1965. Shortly thereafter, this action was begun. The question before us on this state of fact is whether the plaintiff’s misconduct has been condoned, or whether, in the circumstances, it still constitutes a recriminatory bar to her action for divorce.

Substantially all the testimony in this case came front the plaintiff herself, though parts of a pre-trial deposition given by the defendant were introduced; but considered as a whole and taken as true, the plaintiff’s evidence tends to establish that the defendant had, over a period of years, degraded and insulted the plaintiff in a number of ways. Any continuous course of conduct by one spouse toward the other which renders the injured spouse’s condition intolerable through acts of such character as to be subversive of the family relation may constitute “indignities” within the meaning of Section 452.010, RSMo (1959), V.A.M.S., depending on the circumstances, Hooper v. Hooper, 19 Mo. 355, 356-357 [1] [2]; Moore v. Moore, Mo.App., 337 S.W.2d 781, 786-787 [2-8]; Thomas v. Thomas, Mo.App., 288 S.W.2d 689, 696 [4-6], certiorari denied 352 U.S. 873, 77 S.Ct. 98, 1 L.Ed. 2d 77, and we assume plaintiff’s grounds for divorce were sufficient.

It is not enough, however, for a plaintiff seeking a divorce in this state to show that he is “injured,” i.e., that he has grounds for divorce. Through an extension of the maxim that he who seeks equity must come into court with “clean hands,” our courts have held since an early day that a divorce may be granted only if the party seeking it shows that he is both an injured and an “innocent” party. “Innocence,” in this context, does not mean freedom from all fault, but it is required that the party seeking a divorce show affirmatively that he himself has committed no offense which is a ground for divorce. Franklin v. Franklin, 365 Mo. 442, 446, 283 S.W.2d 483, 485-486 [6-8]; Simon v. Simon, Mo., 248 S.W. 2d 560, 562, 563 [1] [2, 3]; Gregg v. Gregg, Mo.App., 416 S.W.2d 672, 675 [5] [6].

We consider it most evident from the facts that unless the plaintiff’s association and relationship with M. has been condoned by the defendant, she has failed to establish the lack of recriminatory fault — the “innocence” — which was an essential element of her case. Judging only by its outward aspect, the plaintiff’s relationship with M. was improper, if not immoral, and it is not controlling on the merits that no actual physical, carnal adultery was shown. Plaintiff’s association with M. was patently such as to afford her the opportunity for adultery and to generate a reasonable belief in the mind of her husband and others that adultery had been committed. Her conduct in associating with M. as she did constituted a species of indignity which gave the defendant cause for divorce, in our view, even though there was no specific proof of any act of sexual intercourse between M. and the plaintiff. Gregg v. Gregg, supra, 416 S.W.2d at 676 [10]; LeBeau v. LeBeau, Mo.App., 366 S.W.2d 515, 518-519 [4]; Herriford v. Herriford, 169 Mo.App. 641, 651-652, 155 S.W. 855, 858 [5].

Of course, the parties did attempt to effect a reconciliation and they did resume cohabitation after the defendant became fully cognizant of the plaintiff’s misconduct. As the plaintiff maintains, the law regards cohabitation with knowledge of the offense committed as strong evidence that past conjugal offenses, including adultery, have been condoned and forgiven, Reeves v. Reeves, Mo.App., 399 S.W.2d 641, 646 [6, 7], and condoned infidelity, unrevived, is not a recriminatory offense and does not prevent an otherwise “injured” spouse from being “innocent” as well. Reeves v. Reeves, supra, 399 S.W.2d at 645-646; Cumming v. Cumming, 135 Mass. 386, 389-391; 24 Am. Jur.2d Divorce and Separation, § 232, pp. 389-390.

Condonation is only a conditional remission, however, and an offense which has been condoned may be revived not only by a repetition or renewal of the same offense, but also by the commission of other marital offenses subsequent to the condonation. Gregg v. Gregg, supra, 416 S.W.2d at 676 [16]; Tootle v. Tootle, Mo.App., 329 S.W.2d 218, 221 [3]. It is not necessary, in this jurisdiction, that the new or subsequent misconduct be of the same kind or be sufficient of itself to warrant a separation or divorce in order to revive the condoned offense. Tootle v. Tootle, supra, 329 S.W.2d at 221 [3]; Ratcliff v. Ratcliff, 221 Mo.App. 944, 949, 288 S.W. 794, 796 [3]. Moreover, condonation involves the idea of voluntary pardon and forgiveness on the part of the offended spouse induced by a good faith expression of repentance and promise of future good conduct, Reeves v. Reeves, supra, 399 S.W.2d at 646 [6]; Weber v. Weber, 195 Mo.App. 126, 129, 189 S.W. 577, 578 [1]; 24 Am.Jur.2d Divorce and Separation, § 219, p. 373, and if the injured party’s remission of the offense and resumption of cohabitation is induced by deception or in bad faith, then nothing is actually condoned. Anno., 32 A.L.R.2d 107, § 16, pp. 152-153 (1953); 24 Am.Jur.2d Divorce and Separation, § 219, p. 373; 27A C.J.S. Divorce § 60, p. 203. In this case, the conditional or tentative nature of the parties’ reconciliation may be deduced from the plaintiff’s own testimony — the parties would “try hard all over again.” And while the plaintiff did not specifically use the word “promise” in her testimony, she did answer affirmatively when she was asked if she “* * * discuss [ed] with [her] husband that you would not be a guest of M.’s any more if the two of you could get back together and work this thing out,” and plaintiff again said “yes” when she was asked if she told defendant “ * * * that you would not contact or talk to M. again.” While the evidence may be subject to other interpretation, we think there was more than an implied promise here to forego all future association with M. as a condition to defendant’s condonation, even though the plaintiff did not specifically say she “promised” to do so. Nevertheless, after the parties resumed cohabitation, the plaintiff continued to communicate with M. by telephone. To be sure, the plaintiff testified that M. called only to inquire about the state of her health, but the trial court was not obliged to credit that part of her evidence, and for all that appears, plaintiff did nothing to discourage M. from continuing his calls, and certainly did not advise the defendant he had done so. Though it is our duty to review the whole record in this case and reach our own conclusion on both the facts and the law, Gregg v. Gregg, supra, 416 S.W.2d at 674 [2], the judgment entered is not to be set aside unless it is clearly erroneous, and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses. Rule 73.01(d), V.A.M.R. We are particularly inclined to apply this rule of deference in a case of this kind, where a proper determination of the issues depends largely upon the credibility of one of the parties to the action. Reeves v. Reeves, supra, 399 S.W.2d at 648-649 [13]. We think the trial court might reasonably have concluded that the plaintiff’s continued surreptitious communication with M. after she and the defendant resumed cohabitation was sufficient to revive the offenses which had been condoned, Longinotti v. Longinotti, 169 Ark. 1001, 277 S.W. 41, 42-43; Warner v. Warner, 31 N.J.Eq. 225, 227-228; Anno., 16 A.L.R.2d 585, § 10, pp. 600-602 (1951), or, with equal justification, that defendant’s condonation was induced by representations made simply to avoid the consequences of detected infidelity. In either view of the matter, the judgment is correct, and is therefore affirmed.

STONE, P. J., and TITUS, J., concur.


author: SPERRY, Commissioner.

text:
    PIONEER FINANCE COMPANY, Plaintiff-Respondent, v. Pinkie L. WASHINGTON, Defendant-Appellant.
    No. 24691.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 2, 1967.
    Application to Transfer Denied Nov. 13, 1967.

      Gladys B. Donovan, Kansas City, for appellant.
    Herbert Jacob, Kansas City, for respondent.
   SPERRY, Commissioner.

Plaintiff sued LuDena A. Walker and Pinkie L. Washington for the principal sum, and accrued interest, on a note signed by both defendants as co-makers. Trial in magistrate court resulted in judgment for plaintiff against both defendants. Both appealed to the circuit court where LuDena A. Walker defaulted. The cause was tried to the court, as to defendant Washington, who was present and was represented by counsel. The court entered judgment against both defendants in the sum of $818.00, and costs. Defendant Washington appeals.

Plaintiff has filed motion to dismiss the appeal on the stated ground that appellant has failed to comply with Rule 83.05, V.A. M.R., in the following particulars:

1. Failed to make a fair and concise statement of facts in her brief as required by (a) 2, (c) and (d) of the Rule.
2. Failed to make a proper statement of points relied on, as required by (a) 3, (e) and (f) of the Rule.

Under “Statement of Facts”, in the brief, appears the following:

“Plaintiff filed a petition against defendants alleging defendants executed and delivered to plaintiff a promissory note in the amount of $912.00, payable in monthly installments. No payments having been made the defendants owed plaintiff $760.-96, (Tr. 7) plus interest at the rate of 2.18% per month, in accordance with terms of written understanding attached to petition (Tr. 6) and prayed judgment therefor.
“On the trial below, without jury, defendant denied that they signed a promissory note, but signed a loan contract and contended that plaintiff could not recover because (1) plaintiff did not pay the principal sum to the makers of the loan contract and therefore no consideration existed ; (2) that defendant Pinkie L. Washington co-signed for LuDena Walker to enable her to purchase a stereo which stereo was never purchased due to the fraudulent actions of the plaintiff; (3) that plaintiff had not complied with the provisions of the small loan laws of Missouri; (4) that the note is usurious in that the loan included charges in excess of the amount permitted by Sec. 408.100 to 408.222 [408.220], R.S.Mo.1959 [V.A. M.S.] and (5) that defendant, Pinkie L. Washington’s signature to the written agreement and the chattel mortgage was obtained through misrepresentation.
“Defendant Pinkie L. Washington appeals because the evidence shows that judgment is for the wrong party”.

Under Points and Authorities appears the following:

“The Trial Court Erred in Entering Judgment for Plaintiff Because the Evidence Showed As a Matter of Law that Defendants Were Not Liable on the Loan Contract Sued on, Because,
“(1) Plaintiff’s testimony failed to establish consideration in that payment was never made to either defendant. A debt was not created.
“(2) The trial court abused its discretion by permitting plaintiff to introduce secondary evidence, contrary to the best evidence rule, to establish amount and content of check wilfully destroyed by plaintiff.
“(3) The Loan contract sued on is fraudulent and usurious and is without value and is therefore unenforceable”.
(Below each numbered “point” appear citations of authority).
Rule 83.05 provides, in part, as follows:
“ * * * The brief for appellant shall contain: (1) A concise statement of the grounds on which jurisdiction of the review court is invoked; (2) A fair and concise statement of the facts without argument; (3) The points relied on, which shall show what actions or rulings of the Court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citation of authorities thereunder; * * * ”.

It is noted that no facts are set out, under the statements of facts, except those concerning the nature of the action filed by plaintiff. The remainder of the “statement” is devoted to a brief statement of what defendant “denied” and what she “contended”. She did not state any of the facts which were in evidence, or at what page of the transcript they might be found. She merely stated her conclusions of why plaintiff should not have the judgment. She does not refer to what the evidence tended to establish for or on behalf of either party. The statement includes argument as well as conclusions. It is not in compliance with the Rule.

In Ritter v. Ritter, Mo.App., 394 S.W.2d 78, 80, the court said:

“A statement which does not afford the appellate court an immediate, complete, and unbiased understanding of the facts and which does not fairly present the facts is pernicious in that it conveys in the first instance a distorted and imperfect impression. It renders the appeal subject to dismissal. In re Adoption of P. J. K., Mo.App., 359 S.W.2d 360, 363; Glick v. Glick, Mo.App., 360 S.W.2d 333, 335; Markowitz v. University City, Mo. App., 335 S.W.2d 455. We consider the appeal subject to dismissal; but the custody (and hence the welfare) of infant children is involved, and for that reason we waive the rule”.

The statement in this brief is wholly inadequate and the appeal should be dismissed.

In Walker Bros. v. L. K. Seear, Mo.App., 364 S.W.2d 51, we stated that we should construe all rules of procedure liberally so as, generally, to decide cases on their merits. We have read the transcript in this court tried case and cannot say that the judgment is contrary to the overwhelming weight of the evidence.

The appeal is dismissed.

MAUGHMER, C., concurs.

PER CURIAM.

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

HOWARD, P. J., CROSS and BLAIR, JJ., and ELLIOTT, Special Judge, concur.


author: CLEMENS, Commissioner.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. William H. VESPER et al., on Exceptions of Bernard A. Grace et al., Defendants, Bernard A. Grace and Winifred R. Grace, Defendants-Respondents.
    No. 32632.
    St. Louis Court of Appeals. Missouri.
    Sept. 19, 1967.

      Robert L. Hyder, Chief Counsel, Missouri State Highway Commission, Jefferson City, Donald L. Spry, Kirkwood, for appellant.
    Kerth, Thies, Schreiber & Hamel, C. Kenneth Thies, Richard D. Schreiber, Clayton, for respondents.
   CLEMENS, Commissioner.

The plaintiff planned to widen its highway and condemned a ten-foot strip across the front of the lot of defendants Bernard A. Grace and Winifred R. Grace. It appeals from the $4,260 verdict and judgment.

The plaintiff first contends the trial court erred in excluding its evidence of special benefits to the defendants’ lot, bestowed by plaintiff’s installing a sanitary sewer line that replaced the defendants’ septic sewer system. The issue is this: Assuming the plaintiff was entitled to show special benefits accruing to the defendants’ lot by affording them a sanitary sewer system, was it error to exclude the plaintiff’s evidence of what it would, have cost the defendants to install the sewer system ? The plaintiff also contends the trial court erred in admitting defendants’ evidence of construction damage. The issue presented by this point: Are the defendants entitled to compensation for damage to their house and lot during construction when that damage could not reasonably have been foreseen at the time of appropriation?

The defendants’ house was on a 124-foot lot on the east side of North Florissant Road (State Highway N) in St. Louis County. The plaintiff had to take a ten-foot strip across the front of defendants’ lot to widen Highway N from two to four traffic lanes. Within this strip there were two shade trees and part of the disposal field of defendants’ septic sewer system. Commissioners made an award of $2,000, and both plaintiff and defendants excepted. The jury trial followed.

We first consider the issue of special benefits. The defendants’ lot was in the Metropolitan St. Louis Sewer District (MSD), which had filed plans for and partially completed a sanitary sewer line along Highway N. Sewer construction had neared but not yet reached defendants’ lot. The plaintiff was faced with the probability that its highway construction would be completed before MSD extended the new sewer line, thus requiring plaintiff to tear up its new pavement to make way for MSD’s sewer line. To avoid this the plaintiff incorporated within its own condemnation plans the laying of a sanitary sewer line, to be built and paid for by plaintiff. This would obviate any construction assessment against defendants’ lot by MSD. Lot owners along this segment of the plaintiff-built sewer line could connect to it merely by paying MSD its regular $250 connecting fee. Evidence was that after condemnation and before trial the plaintiff did build the sewer line; that in widening Highway N it cut through the defendants’ septic disposal field; that the defendants then connected to the new sewer line and paid MSD the $250 connecting fee; that the defendants paid no construction assessment to MSD.

The plaintiff contends, in short, that its construction of the sewer line conferred a special benefit on the remaining part of defendants’ lot. It sought to offset defendants’ compensation with this special benefit.

As said, the first issue is plaintiff’s point that the trial court erroneously excluded evidence of special benefits. We conclude that plaintiff did not afford the trial court an adequate opportunity to rule on that point. It came up in chambers before trial. Plaintiff’s counsel first stated his theory of special benefits and then made an offer of proof. We summarize each.

In stating plaintiff’s theory its counsel outlined the background of the plaintiff’s plan to lay the sewer line at its own expense, and then said: “It is the position of the State that the building of this extension for the sanitary sewers to the subject property at no cost to the defendants would constitute a special benefit to the property and evidence should be admitted as to the cost that would be charged to the property owners for this improvement had the Metropolitan Sewer District extended this sewer district to their property instead of the State Highway Commission in this particular project. That is the plaintiff’s theory, your Honor.”

Then plaintiff’s counsel made the offer of proof. He said that if permitted to offer evidence of special benefits he would call Mr. Jack B. Enger, MSD’s development engineer, to show: MSD’s plans for its sewer extension; that the construction costs in two nearby locations were some eight cents a square foot for the area of each lot; that there would be no construction cost to these defendants for the line to be laid past their lot; that the defendants later applied to MSD to connect with the sewer line, without assessment for construction cost; that construction of the line by plaintiff “would indicate a saving to the defendant of at least seventeen hundred dollars.” To this offer of proof the defendants objected that “the State is reaching out and attempting to advance a cost basis, purportedly the MSD cost basis, on other properties where there is no indication that the same cost basis would have any applicability whatsoever in view of the State’s equipment on hand, hence we object again, it is wholly irrelevant what the MSD might have charged, * * * »

The trial court sustained the objection. Some parts of the offer have become moot. During trial part of this offered evidence did come in. It was shown that the new sewer line was extended past defendants’ lot without cost to them and that they did connect to the new line and did pay MSD the $250 connection fee. So, the only part of the offered evidence that did not come in concerned the eight cents per square foot that MSD charged other lot owners, and that MSD’s probable charge to defendants would have been $1,700 if plaintiff itself had not laid the line. The plaintiff attacks the exclusion contending it prevented plaintiff from introducing any evidence of special benefits. That overstates plaintiff’s case. The only evidence precluded by the court’s ruling was the price MSD would have charged defendants. The defendants’ objection to plaintiff’s offer of proof was that plaintiff was erroneously trying to show special benefits on “a cost basis, purportedly the MSD cost basis, on other properties * *

We cannot say the trial court erred in denying plaintiff’s offer. Fundamentally, where part of a condemnee’s land is taken his compensation is measured by the property’s reduced market value. An integral part of this proposition is that the amount of special benefits conferred upon a condemnee’s land is measured by the same standard — the increase in market value bestowed on the remaining part of the con-demnee’s land. State ex rel. State Highway Commission v. Vorhof-Duenke Co., Mo. (banc), 366 S.W.2d 329 [3]. Here, plaintiff’s offer contained not one word about the sewer line increasing the market value of plaintiff’s remaining land. Considered in its best light, the offered evidence was an opinion of the probable cost of the sewer line if MSD had built it. That was not the issue. We hold that the trial court did not err in excluding the offered evidence.

Plaintiff now argues that the offered evidence of sewer line cost was relevant to the value the sewer line had bestowed on defendants’ land, and that the purpose of the cost evidence was to lay a foundation for the value opinion of real estate appraisers whom plaintiff intended to call as witnesses. Perhaps so, but we are not ruling on that newly raised issue; we are passing upon the propriety of the trial court’s ruling at the time it was made. We cannot hold that the trial court erred in failing to consider an undisclosed reason that might have made the offered evidence admissible. This accords with the rule that “an offer' of proof must show all of the facts necessary to establish the admissibility of the testimony sought to be introduced.” Kinzel v. West Park Investment Corp., Mo., 330 S.W.2d 792 [1].

Plaintiff further points to the trial court’s ruling denying plaintiff’s offered evidence about cost, and now argues that the ruling precluded its two value witnesses “from considering any evidence of special benefits in expressing their before and after opinions.” At trial, plaintiff’s counsel apparently did consider that to be the effect of the earlier ruling. Before producing two appraiser-witnesses, plaintiff’s counsel told the court that in deference to its previous ruling he had told the two appraisers not to consider special benefits in stating their opinions of before-and-after value. This was not an offer of proof nor did it call for any ruling by the trial court. It was merely a statement of counsel’s understanding about the effect of the court’s earlier ruling denying plaintiff’s offer to show the probable cost of a sewer construction by MSD.

As said, the amount of special benefits here must be measured by an increase in the market value of the remaining land. This could best be shown by expert witnesses acquainted with the property, its value, and the effect that the construction of a utility would have upon the value. Plaintiff’s counsel apparently believed that the exclusion of the offered evidence of cost of sewer construction precluded plaintiff from introducing evidence of the value of the construction to the defendants’ lot. At trial, plaintiff’s two value witnesses were not questioned about either the existence or amount of special benefits. Plaintiff’s counsel may have omitted this line of inquiry in deference to the trial court’s prior ruling. But to preserve this point for review plaintiff should have laid a foundation for the value witnesses’ opinions on special benefits, and then asked them to state those opinions. If the court sustained an objection to this, plaintiff could have preserved the point by an offer of proof. On this appeal, however, we determine whether the trial court erred in its rulings. Absent a question to the witness or an offer of proof concerning the value of special benefits, the defendants had no opportunity to object; absent an objection, there was no ruling; absent a ruling, there is nothing for us to review. We must deny plaintiff’s first point.

Plaintiff’s second point is that the trial court erred in admitting defendants' evidence that during the highway construction a tree was removed and allowed to fall into defendants’ yard, damaging the yard and house. Plaintiff contends this evidence was irrelevant to the only true issue: the value of the property immediately before and after the appropriation. We agree.

Over plaintiff’s obj ections defendant Bernard A. Grace testified about damage to his house and yard caused by the removal of the larger shade tree. This removal occurred some months after the plaintiff had appropriated defendants’ ten-foot strip. Mr. Grace said the tree was rocked to and fro by a bulldozer until it toppled over. It fell within a foot of defendants’ house, gouging holes in the yard, breaking windows and cracking plaster. Plaintiff repeatedly objected to this testimony on the ground it was immaterial and injected the false issue of abnormal construction damage into a lawsuit concerned only with comparative values at the time of appropriation. In Kamo Electric Co-op v. Baker, 365 Mo. 814, 287 S.W.2d 858, we find a clear and well-supported discussion of the point. The underlying principle is that the amount of a condemnee’s compensation is determined as of the time of appropriation, not as of the time of construction or the time of trial. It is proper, of course, to consider the depreciation in value that will result from the proper prospective use of the condemned property. For this reason evidence is admissible to show the prospective use factors that were reasonably apparent at the time of appropriation and which a purchaser would normally consider in determining the value of the remaining property. This does not, however, permit evidence of speculative risks and contingencies that may never occur. Here, the removal of the two trees was reasonably apparent at the time of appropriation. But nothing less than supernatural foresight could then have determined that the removal of the large tree would harm the defendants’ house and yard, nor to what extent that harm would affect the market value of the property. As said in the Kamo case, supra, 287 S.W.2d 1. c. 862, “ * * * only such depreciation in value may be considered as may be reasonably expected to follow from the lawful invasion of the premises by the appellant, as distinguished from acts, the results of which are purely remote, speculative, and conjectural in their nature, and which are not fairly and reasonably to be anticipated.”

We hold that it was error to admit the evidence of how the tree fell and the extent and amount of damage it caused. This, because that evidence did not relate to a factor of market value reasonably apparent at the time of appropriation. We must conclude that the jury gave some consideration to this irrelevant evidence — how much, we cannot say. The only way to correct the error is to reverse the judgment and remand the case for a new trial so defendants’ compensation may be determined upon proper evidence. Bertram v. Wunning, Mo.App., 385 S.W.2d 803 [6], and Franklin v. Kansas City Public Service Co., 239 Mo.App. 151, 186 S.W.2d 546 [6].

PER CURIAM:

The foregoing opinion of CLEMENS, C., is adopted as the opinion of this court. Accordingly, the judgment is reversed and the cause is remanded for a new trial on all issues of damage.

ANDERSON, P. J., WOLFE, J., and SAMUEL E. SEMPLE, Special Judge, concur.


author: TOWNSEND, Commissioner.

text:
    In re Connie Sue TAYLOR, John Edward Taylor, Erwin Joe Taylor, Maryetta Margaret Taylor, Felix Christopher James Taylor and Samuel J. Michael Taylor, minors under the age of seventeen years. Dewey SMALLEN, Juvenile Officer for the County of St. Francois, State of Missouri, Respondent, v. John Edward TAYLOR and Enzie Bonetta Taylor, Appellants.
    No. 32515.
    St. Louis Court of Appeals. Missouri.
    Sept. 19, 1967.

      William C. Bernhardt, DeSoto, for appellants.
    Jack Moore, Pros. Atty., Charles G. Hy-ler, David L. Colson, Asst. Pros. Attys., Farmington, for respondent.
   TOWNSEND, Commissioner.

Statutory action for termination of parental rights, brought by petition of the Juvenile Officer of the Juvenile Court of St. Francois County, filed May 25,1965. From a judgment terminating such rights the parents appeal.

Petitioner’s evidence here pertinent consisted of the sworn testimony of himself and Miss Gibson, child welfare worker in St. Francois County with the Missouri Division of Welfare, and nine exhibits. Each of such exhibits is a report prepared by Miss Gibson addressed to the Juvenile Judge of St. Francois County relating to the situation of the Taylor family and running from March 1963 to May 1965.

From the record it appears that the attention of the Juvenile Officer was first directed to the condition of the family of John Edward and Enzie Taylor by the fact that the youngest child of the Taylors named Sherry (not a party to these proceedings), aged about four months, was a patient in the Bonne Terre Hospital suffering from malnutrition and pneumonia. Temporary care and custody of this baby was given to the St. Francois County Welfare Office on March 19, 1963. The situation of the balance of the family was referred to the child welfare service on the same day by the Juvenile Officer and on that day he and Miss Gibson visited the Taylor home, a two-room house without plumbing. The six children, subjects of this proceeding, were at home with Mrs. Taylor.

For reasons that will readily become apparent we enter into no detailed description of the conditions under which this family lived or of the care and attention (or lack thereof) of these six children by their parents.

Upon the occasion of the first visit on March 19, 1963, the visitors explained the purpose of their visit and it was agreed that the case-worker would make follow-up visits in an endeavor to aid the family in attaining better standards of living. Weekly visits were made for two to three months. During that three months period there was some slight improvement in cleaning up the house and disposing of litter. The family then moved to a new location which had some plumbing. After removal to the new location, “the situations of cleanliness and care of the children did not appreciably improve,” according to the case-worker. After a time there was regression to the state found initially.

Thereafter there were numerous complaints from the neighborhood and school alleging neglect of the children and low standards of living. In March 1964 the Juvenile Court requested an investigation as to the welfare of the children and under date of March 16, 1964, Miss Gibson rendered her report to the court, stating that the house was in a deplorably dirty condition, the children were dirty and “the stench of an unkept house was much in evidence.”

Under date of April 17, 1964, the Juvenile Court entered its order finding that the six children were neglected within the meaning of the statute, placing their care and custody in the Division of Welfare and ordering the case-worker, the county health nurse and the sheriff’s office to effect the change of custody immediately; the order was executed the same day.

On May 11, 1964, parental rights in the baby Sherry were terminated; she had been placed in the home of a childless couple with possibilities of adoption.

Among appellants’ assignments of error they assert: “3. The court erred in failing to find the state did not prove one or more of the jurisdictional requirements of Section 211.411.” Complementary to this charge is the further assignment: “5. The court erred in finding the parents had refused to give the children necessary care and protection during a time the court had ordered the care and protection of the children in the Welfare Department.”

The action for termination of parental rights is designed to extinguish forever the pre-existing legal rights of the parents with respect to their child and is the subject of specialized legislation. The power of the juvenile court to effectuate such a result is in its entirety the creation of the statute; it does not otherwise exist. Therefore, the terms of the statute must be strictly applied.

The pertinent statute is Section 211.441 which provides:

“1. The juvenile court may, upon petition filed * * * terminate ali rights of parents to a child when it finds that such termination is in the best interest of the child and one or more of the following conditions are found to exist:

(2) When it appears by clear, cogent and convincing evidence that for one year or more immediately prior to the filing of the petition

iji ⅝ ⅜ ⅜ ⅜ ⅜

(b) The parents have willfully, substantially and continuously or repeatedly neglected the child and refused to give the child necessary care and protection;

(c) The parents, being financially able, have willfully neglected to provide the child with the necessary subsistence, education or other care necessary for his health, morals or welfare or have neglected to pay for such subsistence, education or other care when legal custody of the child is lodged with others; * *

Under such statutory terms the power of the court is dependent upon the existence of one or more special conditions. In order to create that power, any such special condition must have existed for the one year immediately prior to the filing of the petition. We proceed to consider the alternative or cumulative grounds upon which the court may decree the extinguishment of the parents’ rights.

The petition in this proceeding was filed on May 25, 1965, although summons did not issue until August 24, 1965 and was served August 26, 1965. For thirteen months preceding the filing of the petition the children had been in the custody of the Division of Welfare, placed there by an order of the Juvenile Court. As to the latter order we indulge in the presumption of regularity until the contrary is shown. The case-worker’s report of May 18, 1965, shows that appellants were ignorant of the various locations of the children after they were placed in the custody of the Division of Welfare. The parents’ physical power and their legal freedom to give care and support to their children while the latter were being held incommunicado under order of the court were non-existent. Under such circumstances it cannot be said that the parents neglected the children or refused to give them care and protection. The evidence therefore gives no basis for the Juvenile Court’s finding that the parents willfully, substantially and continuously neglected the children and refused to give them necessary care and protection for more than one year immediately prior to the filing of the petition.

Turning to the next alternative provision upon which the court’s power depends, we see that it specifies two conditions which must exist, namely, that the parents have not paid for the subsistence and care of their children while the latter are in the custody of others and that the parents have had the financial ability to make such payment, all in the year immediately preceding the filing of the petition. The record here is completely lacking in any evidence relating to either of these conditions precedent, although it might readily be inferred that the parents have not made such payment as the statute specifies. No such inference could be indulged regarding the ability of the parents to pay. In any event the statute demands clear, cogent and convincing evidence of the existence of these conditions precedent; that evidence is lacking. In respect to this statutory alternative, the finding of the Juvenile Judge was that the parents had willfully neglected to provide the children with the necessary subsistence, education and other care necessary to their health, morals and welfare; that finding was general, and did not relate to any particular period. Hence it was not responsive to the statutory requirement that such omission occur in the year immediately prior to the filing of the petition.

Certain other grounds for terminating parental rights are alleged in the petition. One such allegation did not fall within the terms of Section 211.441. There was no evidence to support another allegation framed in some of the terms of that section. As to these other alleged grounds for termination no findings were made by the trial court.

Accordingly we find that there was no evidentiary basis for the finding of willful and continuous neglect and refusal to give the children necessary care and protection for one year or more immediately prior to the filing of the petition; similarly we find that there was no evidence that could have supported a finding of ability to pay and failure to pay for subsistence, education or other care when legal custody of the children was lodged with others for the one year immediately prior to the filing of the petition, if such a finding had been made. The Juvenile Court was therefore wholly lacking in the statutory power to decree a termination of parental rights.

Appellants’ other assignments of error do not warrant the consideration of the Court.

The motion to dismiss the appeal is overruled.

The judgment is reversed.

PER CURIAM:

The foregoing opinion by TOWNSEND, C., is adopted as the opinion of this Court. Accordingly, judgment is reversed.

ANDERSON, P. J., RUDDY, J., and THEODORE McMILLIAN, Special Judge, concur.


author: DOERNER, Commissioner.

text:
    Genevieve STEELE, Plaintiff-Respondent, v. John YACOVELLI, Defendant-Appellant, and Lucille Williamson, Defendant.
    No. 32673.
    St. Louis Court of Appeals. Missouri.
    Sept. 19, 1967.

      Leritz & Leritz, St. Louis, for defendant.
    Willson, Cunningham & McClellan, St. Louis, Dearing, Richeson, Weier & Roberts, Hillsboro, for defendant-appellant.
    Thurman, Nixon, Smith & Howald, Hills-boro, for plaintiff-respondent.
   DOERNER, Commissioner.

Plaintiff brought this action for damages for personal injuries claimed to have been received by her as a guest in an automobile operated by defendant Williamson when it collided with a car driven by defendant Yacovelli. Trial to a jury resulted in a verdict and judgment in favor of plaintiff and against defendant Yacovelli for $7500, and in favor of defendant Williamson. Defendant Yacovelli alone appeals.

The collision occurred about 11:00 A.M. on January 6, 1965 on U.S. Highway 67 in Jefferson County, at a point approximately eight-tenths of a mile north of the intersection of Route CC and Highway 67. At that place Highway 67 is a divided highway with two north-bound lanes to the east of the grass median, and two south-bound lanes to the west. The north and southbound lanes are connected by a chat or gravel cross-over which extends across the median. The weather was sunny and the concrete pavement was dry. Prior to the collision both vehicles involved were proceeding northwardly in the outer lane of Highway 67, that driven by defendant Yacovelli preceding the car driven by defendant Williamson. Mrs. Williamson decided to pass Yacovelli’s car and to that end pulled into the inner north-bound lane, blew her horn, and accelerated. As she neared Yacovelli’s automobile he suddenly turned to his left or west from the outer lane, across the path of Mrs. Williamson’s vehicle, intending to enter the cross-over. Mrs. Williamson blew her horn, applied her brakes hard, and pulled slightly to her left but was unable to stop in time to avoid the collision. The right front of her car struck the left rear door of Yacovelli’s automobile. Plaintiff testified she was thrown in and about Mrs. Williamson’s car.

Defendant Yacovelli’s initial complaint concerns the giving of Instruction No. 4. By that instruction, plaintiff’s only submission as to defendant Williamson, the jury was told that its verdict must be for plaintiff and against Mrs. Williamson if it believed that she failed to sound her horn before starting to pass Yacovelli’s automobile, that she was thereby negligent, and that such negligence directly combined with the acts of Yacovelli to cause damage to plaintiff. (MAI 17.01, 17.07, 19.01) Defendant points out, and the record confirms, that there was no evidence to support the submission that Mrs. Williamson had failed to sound her horn before starting to pass Yacovelli, and maintains that the court erred in giving Instruction No. 4. He recognizes that the error was as to defendant Williamson and tacitly concedes that the long-established rule has been that one defendant cannot complain of error committed against a co-defendant. Dean v. Young, Mo., 396 S.W.2d 549; Cheffer v. Eagle Discount Stamp Co., 348 Mo. 1023, 156 S.W.2d 591. But defendant advances the novel contention that MAI has abrogated that rule, and that under MAI the giving of any instruction not supported by the evidence requires a reversal, even though the error is committed against a co-defendant. In support of his argument defendant points to the Committee’s comment under Section 1.02, page 7, MAI, that, “The Committee believes that the jury should not be instructed on a theory of recovery or defense not supported by the evidence and that any such submission, whether in the conjunctive or disjunctive, should be reversible error. * * * ” That comment may be applicable when the appellant was prejudiced by the instruction given but it obviously has no application where the erroneous instruction is submitted against a co-defendant and the defendant was not prejudiced thereby. For while Civil Rule 70.01(c), V.A.M.R., provides that the giving of an instruction in violation of the provisions of that rule shall constitute error, it also provides that the prejudicial effect of such error must be judicially determined. And by § 512.160, par. 2, RSMo 1959, V.A.M.S. and Civil Rule 83.13 (b), V.A.M.R., an appellate court is forbidden to reverse any judgment unless it believes that error was committed by the trial court against the appellant which materially affected the merits of the action.

As noted in Dean v. Young, Mo., 396 S.W.2d 549, 558, there is an exception (or a corollary) to the foregoing rule to the effect that if the error committed as to one defendant is prejudicial to the rights of the co-defendant then the co-defendant may justifiably complain. See State ex rel. Nevins v. Hughes, 347 Mo. 968, 149 S.W.2d 836 and Biggs v. Crosswhite, 240 Mo.App. 1171, 225 S.W.2d 514. Defendant seeks to bring himself within the ambit of that exception by contending that by giving Instruction No. 4 when it was unsupported by the evidence, “ * * * the issue of defendant Williamson’s negligence was effectively removed from the case and the jury could not give any consideration to defendant Yacovelli’s position that William-sons (sic) actions caused or played a part in causing plaintiff’s injuries.” Defendant also complains that during his closing argument he was prevented from arguing what he terms, “ * * * his theory of causation * * * ” (that Mrs. Williamson failed to swerve to the right), when the court sustained her objection that plaintiff had not submitted such a charge of negligence against her. As plaintiff points out, defendant’s reference in his argument to “ * * * caused or played a part * * * ” reveals a failure on defendant’s part to differentiate between sole cause and concurring cause. If defendant had undertaken to establish a sole cause defense and his attempt to do so was prevented or prejudiced by the giving of Instruction No. 4 or the sustaining of the objection to his argument then, of course, the court erred. On the other hand, if defendant did not raise a sole cause defense but was merely attempting to fasten concurring negligence on Mrs. Williamson, on a theory other than that submitted by plaintiff, for the purpose of obtaining a joint verdict and judgment, then defendant has no valid ground for a new trial. Duboise v. Railway Express Agency, Inc., Mo., 409 S.W.2d 108; Phegley v. Graham, Mo., 215 S.W.2d 499.

The fact is that at no time during the trial did the defendant claim that the negligence of Mrs. Williamson was the sole cause of the accident. On the contrary, as the record abundantly demonstrates, throughout the entire case defendant admitted that he had been negligent but contended that Mrs. Williamson’s negligence was a concurring cause of the collision. Thus, in chambers, before the selection of the jury began, counsel for defendant Yaco-velli stated:

“There is one other matter. Defendant Yacovelli will admit now, and will cover in his opening statement, that his conduct at the time of this accident was negligence, thus eliminating the need of demonstrating all of the factors leading up to the accident. I want it understood that we are not alleging, admitting this to be the sole cause, but we are going to contend that there is concurrent negligence on behalf of Mr. Leritz’ client. We are admitting Mr. Yacovelli’s conduct was negligent. * * * ”

In his opening statement counsel told the jury:

“Quite frankly, Mr. Yacovelli will acknowledge that he should have seen this automobile before he made this turn. In not seeing this vehicle, because it must have been there, he was negligent. That particular issue, whether Mr. Yaco-velli was or was not negligent, is not in issue here. The evidence that — ” (At this point the court denied plaintiff’s request that the jury be instructed that counsel for the first time was stating the defendant’s position.)
* * * * * *
“The evidence that Mr. Yacovelli will present will not be in the way of a defense as to his negligence, because he should have seen these people. * * If the evidence demonstrates to you that Mrs. Williamson could have avoided this collision, then we will ask on behalf of Mr. Yacovelli that you share the blame for this collision and share it between Mr. Yacovelli and Mrs. Williamson. * * *

And in his closing argument to the jury counsel stated:

“He (Yacovelli) said then and there, it was my fault, and it was. He had no right to turn from here to here unless the way was clear. Everybody agrees with that. He looked and one of those unexplicable things, he didn’t see. It was obviously there. It has been suggested to you that we were going to try to drag Mrs. Williamson in, I believe were the words used.- I submitted to you Mr. Yacovelli should be held responsible. We submit that Mrs. Williamson had a considerable length of time in which to react after Mr. Yacovelli started this. She needed to swerve to the right and come down this lane to avoid the accident.”

Plaintiff had the right, in the first instance, to decide whether to join Mrs. Williamson as a defendant, and having elected to do so, also had the right to choose the theory of negligence she wished to submit against that defendant. And when defendant Yacovelli’s counsel, in an obvious effort to obtain a joint verdict and judgment, attempted to tell the jury that they could find against Mrs. Williamson upon a different theory advocated by him and Mrs. Williamson objected, the court’s action in sustaining Mrs. Williamson’s objection was entirely proper. LaMantia v. Bobmeyer, Mo.App., 382 S.W.2d 455.

During cross-examination of defendant Williamson by defendant Yacovelli she was asked, “Had you and Mrs. Steele on occasion compared notes about your arthritis before this accident?” Plaintiff’s objection to the question was sustained, whereupon defendant Yacovelli made an offer of proof that prior to the accident plaintiff had complained to Mrs. Williamson about discomfort due to arthritis in the general area of her back. Defendant asserts that such testimony should have been admitted as an admission against interest and that the court erred in excluding it. We note in passing that plaintiff made no claim that her back had been injured or aggravated as a result of the accident and that defendant Yacovelli’s medical expert, Dr. Louis A. Reuter, testified that the X-rays he took of plaintiff’s back vertebrae did not show anything abnormal or out of the ordinary with her back. In any event the evidence excluded was merely cumulative, for on direct examination plaintiff testified that following the birth of her son, almost nine years prior to the accident, she had trouble with her back below her waist; and on cross-examination by defendant Yacovelli the following occurred:

“MR. ROBERTS (counsel for Yaco-velli) : Just one more question. Did you ever have any problem with arthritis before this accident?
“A I had this birth injury Í thought might be, but it wasn’t.
“Q Did you at one time think it was?
“A In the lower spine, but it wasn’t.
“Q When you and Mrs. Williamson used to commiserate together about arthritis, that is what you had in mind?
“A. Yes, sir.
“MR. ROBERTS: That’s all.”

Of course, the exclusion of evidence is harmless where it is merely cumulative and the fact has been established-by other evidence. Boland v. Jando, Mo., 395 S.W.2d 206; Boring v. Kansas City Life Insurance Co., Mo., 274 S.W.2d 233.

Defendant’s final point is that the verdict for $7500 is excessive and requires a remittitur of at least $2500. At the time of the collision plaintiff was 50 years of age and in good health except for diabetes which was under control. She led an active life both in her home and in community affairs, doing her own housework, sewing, gardening, painting, helping in various functions of her church, the Amvets, the V.F.W. and serving as a den mother of a Cub Scout Den. She was generally shaken up and received various bruises or contusions about her head and body but the primary injury was a cervical sprain which caused pain and stiffness to the lower part of her neck and a numb feeling going down her right arm. She was given medication for the pain and to relax the muscles, underwent traction treatments, and for two months was required to wear a cervical collar both day and night. The contusions disappeared in time, as did the numbness in her arm, and the pain in her neck subsided to some extent but plaintiff testified that she was never entirely without pain, that it varied in intensity, and that when at times it became severe she took pain tablets, wore her neck brace, applied heat, and laid down. She also related that she was unable to participate in the numerous community activities she had enjoyed, and that her ability to perform her gardening, sewing, and household duties had been impaired. Dr. Rifkin, her treating physician, expressed the opinion that plaintiff’s cervical sprain had reached a chronic phase, that the healing had reached the maximum that would be attained, and that she would permanently continue to have pain and discomfort in her neck and will be limited in the range of motion in her neck.

In support of his contention that the judgment should be reduced defendant cites Salzwedel v. Vassil, Mo.App., 351 S. W.2d 829 and Mahowald v. Garrison, Mo.App., 397 S.W.2d 713. A careful study of the facts in those cases leads us to believe that under the doctrine of uniformity they tend to support rather than undermine the judgment in this case. For example, while in the first case Mrs. Salzwedel sustained a whiplash injury to her neck, she was not required to wear a cervical collar or to undergo traction, as did plaintiff in the instant case, yet the appellate court approved a judgment for $6,000. The same observation is true of Mahowald v. Garrison, supra, and in addition the injured plaintiff was in the main able to continue her employment and household duties. There the verdict and judgment for $7500 was allowed to stand. In defense of the judgment plaintiff cites Bullock v. Sklar, Mo.App., 349 S.W.2d 381, decided by this court, where a judgment for $10,000 was approved, and Stephens v. Guffey, Mo., 409 S.W.2d 62, where a judgment of $19,670 for personal injuries was upheld. However, in our view the injuries in both those cases were more severe than that suffered by this plaintiff, and special damages were incurred in each of them.

There is no precise formula for gauging whether a verdict is excessive. Each case depends on its own particular facts. Goodman v. Missouri Pacific R.R. Co., Mo., 312 S.W.2d 42, 49. Various factors, such as the nature and extent of the injuries and losses, plaintiff’s age and diminished earning capacity, if any, the changing economic factors and the amount awarded in cases similar or of fairly comparable injuries, must be given consideration. Stephens v. Guffey, Mo., 409 S.W.2d 62, 70. But the ultimate test is what will fairly and reasonably compensate the plaintiff for his injuries. Brown v. Payne, Mo., 264 S.W.2d 341; Pitt v. Kansas City Public Service Co., Mo., 272 S.W.2d 193. As was observed in Donahoo v. Illinois Terminal Railroad Co., Mo., 300 S.W.2d 461, 469: “ * * * And this court has also said many times that it must be kept in mind that the question of the amount of damages is primarily for the jury. Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 238 S.W.2d 674, 681.” Taking into account the factors required to be considered, the cases cited by both parties as well as others developed by our own research, we have come to the conclusion that these criteria negative a finding of excessiveness in this case.

The judgment is affirmed.

PER CURIAM:

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

Accordingly, judgment affirmed.

ANDERSON, P. J., and RUDDY and WOLFE, JJ., concur.


author: MAUGHMER, Commissioner.

text:
    Vera D. TAFF, Plaintiff-Appellant, v. Donald E. HARDWICK, Defendant, and Empire Fire and Marine Insurance Company of Omaha, Respondent-Garnishee.
    No. 24449.
    Kansas City Court of Appeals. Missouri.
    June 5, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 2, 1967.
    Application to Transfer Denied Nov. 13, 1967.

      Ryan, Maitland & Ryan, by John P. Ryan, Kansas City, for appellant.
    Gordon, Adams, Niewald & Risjord, by John C. Risjord, Kansas City, for respondent.
   MAUGHMER, Commissioner.

The writer has received this case by reassignment. It is a garnishment proceeding wherein plaintiff sought to recover $5,000 from garnishee, the amount of the judgment theretofore rendered in favor of plaintiff and against defendant in an automobile damage suit. The court sustained garnishee’s motion and entered summary judgment for the garnishee and plaintiff has appealed.

The automobile collision, which was the basis of the judgment, occurred in Kansas City, Missouri on November 20, 1959, near the intersection of Elmwood Avenue and Truman Road. The insured was operating a dump truck, was employed by Swenson Construction Company, and had a liability policy with Empire Fire and Marine Insurance Company of Omaha, the garnishee. Empire, by and through its attorneys, filed answer and defended the suit for damages.

Simply stated, garnishee contends it is not liable because the insured failed to cooperate with it in the defense and in preparation for defense of the damage suit. It is plaintiff’s position (1) that defendant did extend proper cooperation and (2) garnishee waived any such defense and is es-topped at this date to effectively assert it.

The parties in the instant suit entered into a lengthy and detailed Stipulation of Facts which included, among others, the following occurrences:

1. On December 9, 1959, defendant Hardwick was contacted by garnishee’s adjuster and signed a statement reciting that plaintiff had “suddenly swerved into the path of his truck”.

2. Suit was filed on December 31, 1959. Shortly thereafter defendant was served personally and delivered the suit papers to Empire, which company filed answer.

3. On January 21, 1960, attorneys for Empire sent a registered letter to Hardwick at the address which he had given in his application for the policy, reciting their inability to reach him by telephone and requested that he contact them; on February 10, 1960, they learned that defendant no longer was employed by Swenson Construction Company (his employer at the time of the accident), had moved from the address given in the policy and left no forwarding address with Swenson; that on April 15, 1960 Empire’s agent received a letter of inquiry signed by “Margaret and Donald Hardwick” and giving their address as 5023 Clinton Street, West Seneca, Buffalo, New York. On April 22, 1960, Empire’s attorneys replied by letter to this New York address. There was no response but the letter was not returned. On August 8, 1960, a registered letter to the New York address was returned unclaimed. On September 12, 1960, a registered letter to the defendant at Route 3, Altamont, Missouri, brought no reply. Empire’s investigation elicited a rumor that defendant was in California. A letter to him at 839 North Van Ness, Santa Ana, California, was returned unclaimed.

4. On July 12, 1961, Empire wrote to a relative of defendant at Altamont, Missouri, inquiring as to his whereabouts. The reply disclaimed any knowledge as to defendant’s address.

5. In February, 1962, Empire mailed letters to the Motor Vehicle Departments of all fifty states and the District of Columbia, seeking information which might aid in its efforts to locate the defendant Donald E. Hardwick. Missouri replied that his chauffeur’s license had expired. California said he had left that state and the department had no forwarding address. Oregon stated that a driver’s license issued to the named person had expired.

6. On February 12, 1962, Empire successfully sought a reassignment of the damage suit so that it might have additional time in which to make further efforts to locate defendant. On March 7, 1962, a continuance was granted for the same reason and purpose.

7. On March 26, 1962, Empire again asked for a continuance, which was refused. Before the trial commenced, Empire’s counsel stated in open court that they had unsuccessfully tried to locate defendant and secure his cooperation and assistance at the trial and in preparation for trial; that Empire specifically reserved its rights because of defendant’s failure to cooperate, and specifically declared that counsel’s appearance and participation in the trial was not to be construed as a waiver of Empire’s rights to deny coverage.

8. The liability policy provided: “Insured shall cooperate with the company, and upon the company’s request shall attend hearings and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses, and in the conduct of suits”, otherwise no coverage.

9. Empire’s attorneys participated in the trial, cross-examined witnesses and called only one witness — a doctor — who testified. Empire’s representatives had discussed settlement with plaintiff’s attorney.

The proviso in the policy relied upon by Empire is valid and enforceable. In Quisenberry v. Kartsonis et al., Mo.Sup., 297 S.W.2d 450, 453, 454, the Supreme Court said:

“The condition in a policy of liability insurance requiring insured to cooperate is valid and enforceable. The insured must perform the conditions of the contract upon which insurer’s liability depends and, absent fraud, bad faith, or collusion by insurer, the insured’s unexcused failure to cooperate in a substantially material respect releases insurer from liability under the policy as to the particular casualty in question”.

In Quisenberry the court indicated but did not squarely decide that it was unnecessary to show that actual prejudice resulted from the failure to cooperate and made the following statement:

“We observe that, in our view, a showing of prejudice, if that be necessary, cannot mean that insurer must show that it sustained a pecuniary loss or that the jury’s verdict would have been different if the true facts had been disclosed”.

31 C.J.S. Estoppel page 378 defines “What Constitutes Waiver” this way:

“Waiver is a doctrine resting on an equitable principle, and the term is comprehensively defined as a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim, or privilege, which except for such waiver the party would have enjoyed”.

Fischer v. Western & Southern Indemnity Co., Mo.App., 106 S.W.2d 490, 491, like the instant case, was a garnishment proceedings to collect a judgment from the liability insurer. The carrier’s representative wrote letters and telephoned the insured, asking him to cooperate in the trial preparation and also to attend the trial itself, all to no avail. The judgment below was for garnisher, but was reversed outright on appeal. The opinion declares the applicable rule and we quote it:

“It is of course the law that absent fraud or bad faith on the part of the insurance company, or collusion between it and the assured, the latter’s unexcused failure to co-operate with the company in a material respect in accordance with the conditions of the policy so requiring will serve to release the company from liability under the policy. Finkle v. Western Automobile Insurance Co., 224 Mo.App. 285, 26 S.W.(2d) 843; Bauman v. Western & Southern Indemnity Co. (Mo.App.) 77 S.W.(2d) 496, 502. And not only must the assured co-operate, where the policy so requires, in the preparation of the defense to the end that the case may be made ready for trial, but it is held that his failure, without just cause or excuse, to appear in court at the time of the trial materially prejudices the insurance company in its efforts to defend the action brought against him, and constitutes a clear breach of the co-operation clause of the policy so as to warrant the company in disclaiming liability thereunder and in withdrawing from the defense of the case”.

To the same effect are the opinions of this court in Hankins v. State Farm Mutual Automobile Ins. Co., Mo.App., 379 S.W.2d 829 and Lenhart v. Rich et al., Mo.App., 384 S.W.2d 812. See also Beam v. State Farm Mutual Automobile Insurance Co. (C.A.6) 269 F.2d 151 and Great American Insurance Company of New York v. Dennis (U.S.District Court, W.D.Kentucky) 203 F.Supp. 482 and citations incorporated in that opinion.

Garnisher-appellant relies upon the case of Royle Mining Co. v. Fidelity & Casualty Co. of New York, 161 Mo.App. 185, 142 S.W. 438. In Royle plaintiff alleged that because defendant had unsuccessfully defended the action for injuries it was estopped to deny that the accident was within the policy. However, the insurer had notified plaintiff it was defending only on reservation of its right to claim exemption. On appeal the court said:

“If the plaintiff understood that the defendant reserved its rights under its indemnity policy at the time it assumed charge of the defense of the McDaniels action, then there never existed any es-toppel against the defendant; but, on the contrary, if it took charge of the defense without giving plaintiff any explanation of its act, then its silence was an estop-pel”.

We are unable to understand that the Royle case helps appellant.

In the instant case the material facts are established and admitted. On the vital issue —did garnishee waive its right under the noncooperation clause or is it estopped because it defended the suit — the salient facts seem to be abundantly clear. We enumerate some of them:

1. Garnishee, by numerous letters to defendant, telephone calls and activities by investigators, sought to locate defendant. It wrote to every domestic motor vehicle department for the same purpose. It sought his address from relatives. All of these efforts were fruitless.

2. In open court it successfully sought a reassignment of the case and then a continuance to secure further time to pursue this search. Plaintiff was present on each of these occasions, knew the purpose and understood garnishee’s claimed right was based upon defendant’s failure to cooperate.

3. Just before the trial started, garnishee’s counsel in open court recited these facts, proved its fruitless search efforts by the Stipulation of Facts and otherwise, and advised the trial judge and the gar-nisher in open court of its reliance upon the noncooperation clause as a defense and specifically declared it was not waiving that defense by defending the suit or by any other action it had taken. Plaintiff was not and could not have been misled. Plaintiff’s suggestion that there was no positive proof that defendant Hardwick was actually notified of garnishee’s position is without merit. If defendant could not be located to collaborate in the defense, it is quite apparent he could not be located for the purpose of serving any such notice on him.

The fundamental, basic, equitable issue is whether or not plaintiff was misled or lulled into a justified belief that the insurer was not interposing or relying upon this particular defense. It seems to us abundantly clear that defendant clearly violated the cooperation provision, plaintiff knew about it during the investigation, before the trial, during the trial and after the trial. There is no suggestion of any excuse, proper or improper, for defendant’s failure to cooperate. There is no contention of any fraud or bad faith on the part of the insurance company, or of any collusion between it and the assured. The facts were stipulated and so required no jury determination. Under these facts reasonable men could reach only one conclusion — that is — that defendant had, without good excuse, failed to cooperate, and garnishee had not waived the defense. This being so, in our opinion, only a question of law was presented, which the court might and should dispose of by summary judgment. The court did so and in so doing did not err.

The summary judgment for garnishee is affirmed.

SPERRY, C., concurs.

PER CURIAM:

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

All concur.


text:
    Eleanor HENRY, Plaintiff-Respondent, v. Albert BAKER, Defendant-Appellant.
    No. 24607.
    Kansas City Court of Appeals. Missouri.
    April 3, 1967.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Oct. 2, 1967.
    Application to Transfer Denied Nov. 13, 1967.

      Terence C. Porter, Welliver, Porter & Cleaveland, Columbia, for appellant.
    Carl F. Sapp, Orr, Sapp & Woods, Columbia, for respondent.
   SPERRY, Commissioner.

Plaintiff is the surviving spouse of John Henry, who was killed when the automobile which he was operating collided with an automobile being operated by defendant, Albert Baker. This action is one for the wrongful death of Mr. Henry. From a jury verdict for $10,000.00 damages, and the judgment thereon, defendant appeals.

The collision occurred within the T intersection of Victoria Lane and Boone County, Missouri, route K, within the limits of Columbia, Missouri. Route K is a thirty two feet wide, north-south, two lane asphalt highway. Victoria is a gravelled road running east off of route K. There was a light mist falling and the surface of route K was wet. Deceased was proceeding south on route K, approaching Victoria, where he would then turn east two blocks to his home. Defendant was proceeding northward on route K, near the intersection. The accident occurred at about noon February 6th, 1965.

Mr. Roe testified to the effect that he was a photographer for the police department of Columbia. He identified Exhibits as pictures which he took of the highway-near the scene of the collision, shortly thereafter. Exhibit 2 depicts the city limit sign, on highway K, taken from a point fifty feet south thereof, with the camera pointed north. The speed limit is clearly shown as forty five miles per hour. The witness stated that the sign could be seen from a point four tenths of a mile south, by speedometer measurement. One picture, taken from a point two hundred fifty feet south of Victoria, looking north along highway K, shows an automobile making a left turn into Victoria. The witness stated that the drivers of each of two cars, similarly located, could have seen each other; but this picture was taken on a clear day.

An ordinance, introduced in evidence, provides a speed limit of forty five miles per hour at the points material to this law suit.

Pictures of the two cars, at the scene of the accident, were in evidence. The entire fronts of both vehicles were damaged. Plaintiff’s medical Exhibit IS contains a list of seventeen separate and serious injuries received by deceased, from which he died, February 18th, 1965. Since no question of the excessiveness of the judgment is presented we will not set out further medical evidence.

Deceased’s son stated that he was the second to arrive at the scene of the collision; that deceased was seated behind the steering wheel, in his car; that the steering wheel was broken from the column; that the door was open and jammed; that deceased’s car was on its side of the roadway but was crosswise with the line of traffic; that the entire front of the car had received the blow; that the debris was in the center of the highway; that the deceased’s leg was broken and the right knee bone protruded through the skin and clothing.

Mr. Russell, an employee of defendant at the time of the accident, stated that he was riding in the right front seat of the Baker car when the collision occurred; that the car was travelling at fifty to fifty five miles per hour as it approached the intersection; that his estimate of speed was based on the rapidity with which fixed objects were passed; that he was from two hundred to two hundred fifty feet from the Henry car when he first saw it coming south in the west traffic lane of K, about one foot west of the center line; that when the collision occurred, it was about one foot east of the center line; that, from the time he first saw it, deceased’s car travelled from west to east three or some three and one half feet during that time; that it had travelled a total distance of from eighteen to twenty feet from the time he first saw it until the collision occurred; that it was travelling at a speed of six or seven miles per hour; that, during that time, defendant’s car travelled from two hundred to two hundred fifty feet; that defendant did not attempt to swerve his car and gave no signal; that, during this period of time, defendant was talking to witness about his clothing and was, from time to time, looking at witness; that, when he first saw it, deceased’s car was “starting” to move left; that the bumper was the only part of the car that was east of the center line when the collision occurred; that there was room to swerve the defendant’s car, either right or left, and thereby avoid the collision; that defendant could also have swerved left onto a side road; that deceased’s car was still moving when it was struck; that defendant applied the brakes hard when about ninety feet south of deceased; that the front bumper of deceased’s car had moved across the line at that time; that defendant’s car skidded in its line of traffic, and almost turned around. On cross examination the witness gave some testimony that appeared to be confusing as to distances but, on redirect, he repeated that the distance between the cars when he first saw deceased’s car approaching was two hundred to two hundred fifty feet.

There was testimony from a graduate in engineering mechanics to the effect that, if car No. 1 travelled eighteen feet at seven miles per hour, while car No. 2 travelled one hundred eighty two feet, then car No. 2 travelled at the rate of seventy one miles per hour; that, if car No. 1 travelled twenty feet while car No. 2 travelled two hundred feet, then No. 2 travelled at a speed of sixty nine miles per hour; and if No. 1 moved twenty feet while No. 2 moved two hundred feet, then No. 2 trav-elled at the rate of sixty three miles per hour. The witness testified as to other speeds applicable under the testimony in this case, from which the jury could have found that defendant’s car was travelling, prior to the collision, at a speed of from fifty four to ninety one miles per hour.

Police officer Antimi stated that, when he arrived at the scene, neither car had been moved since the collision; that defendant’s car was twenty nine feet north of Victoria, headed west; that deceased’s car was sitting east-west, with the front bumper twenty four feet east of the west edge of the pavement of K; that the cars hit “a little more head-on” , and that both moved several feet after the collision occurred.

Defendant stated that his speed was less than forty five miles per hour as he approached Victoria; that plaintiff’s car made a sudden left turn in front of him, with no warning; that defendant immediately applied his brakes; that his car went to the east side of K, spun around, and hit deceased’s car “just as it was approaching Victoria”. On cross examination defendant stated that a moving car would travel, in feet, one and one half times its speed per mile, per second; that defendant’s car travelled eighty feet after he saw deceased’s car before the collision; that his windshield wipers were on. He admitted that he had been convicted of a crime involving fraud and deceit.

Plaintiff produced four witnesses, substantial citizens, who stated that defendant’s reputation for truth and veracity was bad.

The case was submitted on the issues of defendant’s negligence in failing to keep a careful lookout, failing to slacken speed and swerve, and operating his motor vehicle at a speed in excess of forty five miles per hour in violation of the ordinance. Defendant submitted contributory negligence of plaintiff, because of his failure to keep a careful lookout, and failure to yield the right of way.

Defendant contends here that his motion for directed verdict at the close of evidence should have been sustained because plaintiff was guilty of contributory negligence as a matter of law for failure to maintain a lookout and failure to yield the right of way in making a left turn into the path of an approaching vehicle, plainly visible and so close as to constitute an immediate hazard. The duty of the driver of a vehicle within an intersection, and intending to turn left is to yield to a vehicle approaching from the opposite direction, which is within the intersection or so close thereto as to constitute an immediate hazard. Sec. 304.021(3), RSMo 1959, V.A.M.S. It is the duty of the operator of a motor vehicle to exercise the highest degree of care on the public streets and highways and keep a continuous and careful lookout for other vehicles operating thereon. Faught v. Washam, 365 Mo. 1021, 291 S.W. 2d 78, 82. Other cases in point on the nature of the lookout that is required are the following: Burton v. Moulder, Mo., 245 S.W.2d 844, 846; Branscum v. Glaser, Mo., 234 S.W.2d 626, 627.

Before deceased turned left into the north traffic lane, within the intersection, he was required to look and to see what looking would have disclosed. Branscum v. Glaser, supra. Under the evidence most favorable to plaintiff, deceased at that time saw or could have seen defendant’s car travelling toward the intersection, from two hundred to two hundred fifty feet south of him. Deceased was then travelling at a speed of six or seven miles per hour. He travelled some eighteen or twenty feet before the collision occurred. The evidence was to the effect that his speed slowed as he approached the point where his front bumper crossed over into the north bound traffic lane, and that the front of defendant’s car struck deceased’s bumper when it was about a foot over the center line. From these facts the jury could have believed that deceased had slowed to almost a stop, in order to permit defendant to pass in front of him; that he did not block defendant’s lane of traffic and that he did not violate the statute mentioned. Mr. Russell stated that there was room to permit defendant’s passage. The roadway was thirty two feet wide, thus leaving fifteen feet of roadway east of the center line, when the collision occurred, which defendant could have used. The jury might also have believed that plaintiff was justified in believing that a car two hundred feet south of him did not constitute a hazard. Miller v. Greis, Mo., 396 S.W.2d 642, 644-645.

We must accept as true all evidence favorable to plaintiff’s right to recover, and we must draw all reasonable and favorable inferences therefrom. With that rule in mind we cannot say that, under the facts here, reasonable minds cannot differ but must agree that deceased was guilty of contributory negligence as a matter of law. Carpenter v. Kessner, Mo.App., 330 S.W.2d 270, 273(3-4). The court properly submitted that issue to the jury. Carpenter v. Kessner, supra.

Defendant also urges that plaintiff did not make a submissible case of primary negligence. Based on what we have previously said this contention needs little comment. In Downing v. Dixon, Mo., 313 S.W.2d 644, 650, the court said:

“It has been stated many times that the violation of a statute or ordinance is negligence per se (Rice v. Allen, Mo., 309 S.W.2d 629, 631, and cases there cited; Harper & James, Torts, Vol. 2, § 17.6, p. 997; Prosser on Torts, 2nd Ed., § 34, p. 161); but it is also well settled that the violation must be shown to have been the proximate cause of the injury. Lochmoeller v. Kiel, Mo.App., 137 S.W. 2d 625; Smyth v. Hertz Driv-Ur-Self Stations, Mo.App., 93 S.W.2d 56; Larsen v. Webb, 332 Mo. 370, 58 S.W.2d 967, 970; 90 A.L.R. 67”.

Plaintiff submitted excessive speed in violation of the forty five mile speed limit ordinance of Columbia. There was positive testimony from witness Russell to the effect that defendant’s speed, when from two hundred to two hundred fifty feet from deceased who then began turning left, was from fifty to fifty five miles per hour. All of the eye witness testimony fixed deceased’s speed at from six to seven miles per hour at that time, slower later. The engineer witness stated that, based on deceased’s speed as stated, and upon defendant’s distance south at that time, defendant’s speed was in excess of seventy miles per hour. All of the evidence was to the effect that it was misty and that the asphalt road surface was coated with dirt and water. The evidence was that defendant’s car skidded when he applied his brakes. From this testimony the jury could have believed that defendant’s speed was the proximate cause of- the collision. There was testimony from Mr. Russell to the effect that defendant, immediately prior to the accident, had been talking to and looking at witness. The jury could have believed that defendant failed to keep a proper lookout. Defendant said that he applied his brakes when he first saw deceased, when he was ninety feet south of deceased’s car. From the testimony of Russell he could have seen deceased when he was two hundred feet south so that he could have slackened his speed and could have swerved. The jury could have found that, by his swerving, defendant could have avoided the collision.

Defendant’s second contention is adversely ruled.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM:

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All concur.