author: HYDE, Judge.

text:
    Lloyd REPLOGLE, Plaintiff-Appellant, v. O. A. REPLOGLE, Defendant-Respondent.
    No. 48514.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.

      Haymes & Haymes, Marshfield, for appellant
    Williams & Miller, Roy C. Miller, Springfield, for respondent.
   HYDE, Judge.

Action for partition. Defendant claimed title by adverse possession, asking determination of title and declaration that he was owner in fee simple. The court entered judgment for defendant and plaintiff has appealed.

By stipulation the parties agreed on the following facts.

“1. The plaintiff and defendant are brothers, being the only children and heirs of Aca Replogle, deceased, who died intestate May 14, 1937, and was at his death the owner of the entire part of the land here in controversy.
“2. At the time the father died the plaintiff had been absent from Webster County in excess of seven years. During this period his whereabouts were unknown to this defendant.
“3. On March 24, 1938, after defendant had complied with the provisions of law resulting in the Probate Court of Webster County, Missouri declaring the plaintiff to be a person presumed to be dead, letters of administration were granted to defendant upon plaintiff’s estate. A one-half interest in the land here in question was inventoried by defendant as a part of plaintiff’s estate. Notice of appointment was published and final settlement was made by defendant as administrator on May 12, 1939. No sale of the real estate was made by the administrator as part of the administration.
“4. Defendant has been in the actual, open and notorious, exclusive, continuous and visible possession the entire amount of the land in question since the death of the father on May 14, 1937, and still remains in such possession.
“5. During all the time since May 14, 1937, defendant has paid all taxes on said property and has paid for such insurance as there has been on the buildings and with defendant’s name being the only one appearing on the tax books and insurance records since that time.”

The issue to be tried was whether or not defendant’s possession was hostile under an unequivocal claim of right. Defendant concedes that he had the burden of proof on this issue. (See Hamburg Realty Co. v. Walker, Mo.Sup., 327 S.W.2d 155; Gaskill v. Cook,, Mo.Sup., 315 S.W. 2d 747; Krumm v. Streiler, Mo.Sup., 313 S.W.2d 680.) For the reasons hereinafter stated, our view is that a finding for defendant on this issue is sufficiently supported by substantial evidence and is not clearly erroneous.

The only evidence (except agreed facts, and documentary evidence consisting mainly of probate files) was the testimony of defendant. Defendant’s purpose for administration under the presumption of death statutes (then Secs. 265-272 and 1709 RS 1929 [now V.A.M.S. §§ 473.697-473.720, 490.620]) was his understanding (based on advice of counsel) that at the end of such administration the land would be his. The only assets administered amounted to $69.-90 personal property which was $1.85 less than costs of administration. The parties’ father lived on the land (222 acres) and about 1927 defendant moved on it with his father’s permission, building a separate small residence. Both defendant and his father separately owned cattle and farmed separately. After his father died and the administration of his brother’s estate (on presumed death) was completed, defendant moved to the larger house where his father had lived. He first took down the old barn and built a new one and built two rooms and a porch onto the dwelling occupied by his father before his death. He also moved his former dwelling and converted it into a barn. Thereafter, defendant did more remodeling to the dwelling, rebuilt a barn after it was destroyed by a cyclone, doubled the size of the chicken house, built a machine shed in 1945, built a brooder house in 1946, drilled a well and installed a pressure system at the father’s former dwelling in 1946 or 1947, built a mile of new fencing and cleared about 100 acres. Defendant also on April 16, 1951, executed an easement deed (signed by himself and wife) to Sho-Me Power Corporation for a transmission line easement across the land. This suit was commenced May 20, 1960.

Plaintiff contends that defendant’s possession must be considered conditional and permissive, pointing out that it was permissive during their father’s lifetime, and also arguing that administration of a presumed decedent’s estate is a conditional proceeding, based on uncertainty and could not start the statute of limitations running against plaintiff, citing Buck v. McMinn, Mo.Sup., 300 S.W. 497, in which we said there was substantial evidence to support the trial court’s finding of conditional claim; Golden v. Tyer, 180 Mo. 196, 79 S.W. 143, also in which there was evidence to show possession was not adverse so that the trial court’s finding was not disturbed; Hunnewell v. Burchett, 152 Mo. 611, 54 S.W. 487, where the evidence conclusively showed the possessor did not claim the land adversely to the true owner; other cases cited by plaintiff in which the trial court’s finding of no adverse possession was affirmed are Chapman v. Kullman, 191 Mo. 237, 89 S.W. 924, and Seibert v. Hope, 221 Mo. 630, 120 S.W. 770. In this case, the trial court found defendant’s possession was hostile and adverse; and as we view it there was substantial evidence to support that finding. The presumed death proceedings then authorized by Secs. 265-272, RS 1929, provided for security for refund to be given by those entitled to distribution (Sec. 270) and for revocation of letters (Sec. 271) with substitution of the supposed decedent in all actions. However, land would not be involved in such proceedings unless required to pay debts which was not true here. It is the character of defendant’s possession, and not the probate proceedings, that must be decisive here.

Plaintiff also says it was error to permit defendant to testify as to what he was told concerning the legal effect of this administration. This was not offered for the truth of the advice but only as a basis for defendant making a claim of ownership, tending to show intent to possess under a claim of right. (See 2 C.J.S. Adverse Possession §§ 223a, 225a; 20 Am.Jur., Evidence, Secs. 337-339.) Plaintiff further contends that defendant is bound by his admission that he was claiming full title to the land solely because of the administration on his brother’s estate. This is based on the following question and answer on cross-examination. “Q. Now, the only claim that you have made to being sole owner of that place is because of these probate proceedings that you instituted on your brother’s estate, is that right? A. That’s right.” This was explained on redirect as follows: “Q. Have you claimed to be the owner ever since the probate proceedings? A. After them. Q. You didn’t or you hadn’t made any claim to ownership to all of it before the probate proceedings? A. No, sir.” Our view is that the court could reasonably find that this administration was the basis for defendant making a claim of ownership; that his claim commenced at the termination of these proceedings; that his possession thereafter was hostile; and that his use and improvement of the land thereafter were unequivocal acts of ownership.

As to tenants in common “the general rule is that such a tenant or such an heir presumptively holds possession for his cotenants or coheirs. See Mann v. Mann, 353 Mo. 619, 183 S.W.2d 557; and Humphreys v. Welling, 341 Mo. 1198, 111 S.W.2d 123. But under certain circumstances such a tenant in possession may hold adversely to his cotenants or coheirs and, after such adverse possession for the statutory period, may invoke the statute to defeat the claims of his cotenants or coheirs. Hart v. Eldred, 264 Mo. 148, 174 S.W. 380; and Nickey v. Leader, 235 Mo. 30, 138 S.W. 18.” (Hunter v. Hunter, Mo. Sup., 237 S.W.2d 100, 102; see also Warfield v. Lindell, 30 Mo. 272; Coberly v. Coberly, 189 Mo. 1, 87 S.W. 957; Mann v. Mann, 353 Mo. 619, 183 S.W.2d 557; 1 Am.Jur., Adverse Possession, Secs. 52-57; 2 C.J.S., Adverse Possession, Sec. 99; 86 C.J.S. Tenancy in Common §§ 37-38.) It is said (1 Am.Jur. 825) : “[W]here one cotenant occupies the common property notoriously as the sole owner, using it exclusively, improving it and taking to his own use the rents and profits, or otherwise exercising over it such acts of ownership as manifest unequivocally an intention to ignore and repudiate any right in his cotenants, such occupation or acts and claim of sole ownership will amount to a disseisin of his cotenants,, and his possession will be regarded as adverse from the time they have knowledge of such acts or occupation and of the claim of exclusive ownership.”

We have held “that it is not ‘necessary that any positive notice should be given to the cotenant, or that it devolves upon the possessor to prove a probable actual knowledge on the part of the co-tenant. It is sufficient that the act itself is overt, notorious; and if the co-tenant is ignorant of his rights or neglects them, he must bear the consequences.’ ” (Mann v. Mann, 353 Mo. 619, 183 S.W.2d 557, 560; see also Hendricks v. Musgrove, 183 Mo. 300, 81 S.W. 1265.) In 1 Am.Jur. 827, it is said: “The knowledge required may arise from actual notice, as in the case of a disavowal or disclaimer by the adverse possessor of any right in his cotenants, or it may arise from acts or circumstances attending such adverse possession, which are overt, notorious, and unequivocal in their character and import.” It is also said (86 C. J.S. Tenancy in Common § 38, pp. 397-398) : “[T]he notice may be express or implied or constructive, as from conduct so unequivocal that knowledge on the part of the tenant out of possession may be presumed, as where the adverse possession is so open, visible, and notorious as to charge the tenants out of possession with knowledge of the hostile claim. * * * Making valuable improvements, retaining all rents and profits, or paying the taxes by a tenant in long-continued and undisturbed occupancy, if with knowledge of his co-tenants, may operate as notice of claim of ownership of the entire property, if done after the manner which obtains generally in cases where absolute ownership is asserted.”

In the Hunter case (237 S.W.2d 100) there had been administration in 1930 by one brother of the estate of the other brother, who was under life sentence in the penitentiary, based on the civil death statute, then Sec. 12968 RS 1929 and Sec. 12972 RS 1929 [now V.A.M.S. § 222.010]. We held this proceeding', in connection with the administration of the father’s estate (involving only personal property) and the later administration in 1937 of the mother’s estate, showed that the possession of the mother’s land then taken by brother, who was administrator of all three estates, was hostile because he was shown as the sole heir in the administration of the last estate and thereafter claimed ownership, took possession of the land, lived on it and improved it. Plaintiff says that case is inapplicable because there was actual notice to the convict of his brother’s claim but as the above authorities show actual notice is not essential where there are unequivocal overt acts of ownership sufficient to indicate a hostile claim.

Our conclusion here is that the court could reasonably have found the facts here were as strong to show hostile possession as those in the Hunter case and were continued over twice as long a period. The administration herein under the presumed death statute, whatever its actual effect may have been, was clearly for the purpose and with the intent of eliminating plaintiff’s interest in the land and defendant’s evidence sufficiently shows that thereafter he believed he owned it, claimed to own it and exercised unequivocal acts of ownership over it of an overt, notorious character sufficient to constitute notice of his claim. Defendant and his lawyer made considerable effort to find his brother before the presumed death administration was begun and he undoubtedly believed his brother was dead. Thereafter he exercised the most positive acts of ownership in remodeling and enlarging the house and moving into it, in building new farm buildings and new fences, clearing much of the land, farming it, keeping all proceeds, paying all taxes and insurance in his name only for more than 20 years and making a conveyance of an easement as the sole owner. These circumstances following the probate proceedings, seem to us to make a strong case of implied or constructive notice of defendant’s claim of sole ownership sufficient to support the court’s finding of title by adverse possession.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    Martin J. McDONOUGH, Respondent, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Appellant.
    No. 48360.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.

      Donald W. Bird, St. Louis, for appellant.
    Mark D. Eagleton, St. Louis, for respondent.
    Joseph Nessenfeld, St. Louis, of counsel.
   HOUSER, Commissioner.

Action for personal injuries sustained by Martin J. McDonough, a motorcycle policeman, when the three-wheeled motorcycle (tri-car) he was driving and a St. Louis Public Service Company bus collided in the intersection of 12th Street and Washington Avenue in downtown St. Louis. A jury trial resulted in a verdict for plaintiff for $20,000. Defendant has appealed from the ensuing judgment. •

Washington Avenue and 12th Street are principal public thoroughfares in downtown St. Louis. Both are level, paved streets. Washington runs east-west; 12th Street runs north-south. They intersect at right angles. Traffic is regulated by electric lights standing on all four comers of the intersection. The sequence is go (green), caution (amber), stop (red). When the lights are red for east-west traffic they are green for north-south traffic, and vice versa. There are eight traffic lanes in 12th Street, designated by white painted lines; four for northbound and four for southbound traffic. Twelfth Street immediately north of Washington is 44 feet 1 inch from the east curb line to the painted center line; 41 feet 7 inches from the painted center line to the west curb (total width, 85 feet 8 inches). There are six traffic lanes in Washington, which is 50.5 feet wide east of 12th Street, and 56 feet wide west of 12th Street. Sidewalks on these two streets are 10 or 12 feet wide. There are 12-foot white-painted crosswalks on all four segments of the intersection. The south line of the crosswalk along the north segment coincides with the north curb line of 12th Street, extended.

On August 8, 1958 between 5 and 5:15 p. m., on a bright, clear, dry day, plaintiff was driving his tri-car south on 12th, intending to turn west on Washington. Defendant’s bus was proceeding west on Washington, heading for the bus loading zone on the north side of Washington just west of 12th. The vehicles collided in the northwest corner of the northwest quadrant of the intersection while plaintiff was executing a right turn.

Plaintiff’s petition contained both primary and humanitarian assignments of negligence, but the case was submitted to the jury solely on failure “to have swerved said motorbus and to have given a timely and adequate warning of the approach and proximity of the bus,” under the humanitarian doctrine.

On this appeal defendant asserts error in overruling its motion for a directed verdict on the ground that plaintiff did not make a submissible case of humanitarian negligence on either failure to swerve or failure to warn; error in giving Instructions Nos. 1 and 6; misconduct of a juror; improper final argument and excessiveness of the verdict.

Plaintiff contends that the negligence submitted was a combination of defendant's failures to both swerve and warn, “a single compound form of negligence,” but further argues that there was substantial evidence that defendant’s operator could have avoided the collision after peril was discoverable “either by swerving alone or by sounding a warning alone”; that considering plaintiff’s obliviousness, there was “ample time within which the operator could have reacted and then taken either or both of the precautionary measures submitted,” but that, in any event, the combination of such measures, as submitted, would have averted the collision. We will first consider whether plaintiff made a case of failure to warn under the humanitarian doctrine.

From the testimony of plaintiff, his two witnesses and a plat drawn to scale the following facts were made to appear: Plaintiff, driving his tri-car south in the westernmost lane of 12th, next to the curb, intending to turn west on Washington, stopped for a red light against southbound traffic. The tri-car stopped 2 or 3 feet north of the north line of the crosswalk. Counting the width of the crosswalk, the distance between the tri-car and the north curb line (extended) of Washington was 14 or 15 feet. Traffic was heavy. Immediately to plaintiff’s left there were three lanes of solid traffic — -southbound automobiles stopped, waiting for the traffic light to change. The front of plaintiff’s tri-car was even with the back of the hood of the car to his left. Plaintiff could see to the east over the hood of the adjacent car only as far as the center of 12th Street. His view was cut in half by the traffic in the other lanes to the east, which were slightly (“as much as half a car length”) ahead of him. When the light changed from red to green plaintiff looked to the east as far as the middle of 12th Street. Pie saw nothing in that space. After waiting for two pedestrians to clear the crosswalk in front of him plaintiff moved forward, intending to go west on Washington. After he started forward plaintiff made no attempt to look to the left, before or during the right turn, at any time before the collision occurred. All the rest of the time the tri-car was in motion plaintiff was watching the right curb lane, with his head turned to the right or west, looking to the right. At no time did plaintiff ever see the bus prior to the collision, and he did not apply the brake. As he reached the north curb line of Washington he had attained a speed of 5-7 m. p. h. Plaintiff could stop his tri-car within a total distance of 5-7 feet, traveling at 5-7 m. p. h. under the existing conditions. As he moved forward the three lanes of traffic to his left also moved forward, plaintiff’s tri-car maintaining its same relative position to the automobiles as they all moved south on the green light. Plaintiff rounded the corner, maintaining a distance of approximately 2 feet between his right rear wheel and the curb. The curb was a curve, not a right angle. As the tri-car was making the turn, 2 feet from the curb, just after the tri-car entered the intersection, its front wheel and fender collided with the right side of the westbound bus. The impact occurred while plaintiff was in the space between the painted lines of the two crosswalks which converged at the northwest corner of the intersection, 2 feet west of the west curb line (extended) of 12th Street, with the right rear wheel of the tri-car about 2 feet from the north curb line (extended) of Washington. The tri-car was headed southwest. Plaintiff was looking to his right, watching pedestrians.

The bus was 40 feet long, 10 feet wide, and 9 feet high. The point of collision on the bus was on the right side, between the front and rear doors. The impact somersaulted plaintiff off the tri-car and onto the pavement, inflicting injuries. No horn was sounded by the bus driver before the collision.

Plaintiff’s witness Doyle, driving a car behind plaintiff in plaintiff’s lane, testified as follows: 2, 3 or 4 seconds after the light for southbound traffic turned green, after pedestrians left the crosswalk in front of him, plaintiff proceeded forward through the crosswalk and started making a right turn. Asked for an "estimate” of the “approximate” speed of the bus Doyle answered “It was going thirty miles an hour, at least.” Doyle first saw the bus when “it had just passed the center of the intersection” ; when the bus was 3 or 4 feet west of the center line of 12th Street. The bus was headed at a slight angle to the northwest, with its right front corner about 2 feet farther north than its right rear corner. When Doyle first saw the bus the tri-car was even with the north curb line of Washington. There was no westbound traffic on Washington other than the bus at that time. When Doyle first saw the bus, Doyle stopped. The front of Doyle’s car, thus stopped, occupied more than half of the width of the crosswalk. The bus “seemed to be missing the center lanes of traffic * * * the bus was on an angle around those lanes of traffic * * * heading at a diagonal towards the curb * * * at the northwest corner.” The southbound traffic in the center lane and the next lane were out in the intersection when he first saw the bus. They came to a stop and let the bus go through. This traffic stopped about a foot from the right side of the bus. When Doyle saw the bus the tri-car was “on an angle, headed west on Washington.” It had “almost completed its turn,” and was “just hardly moving.” Doyle said that the tri-car had “almost completed” the turn into Washington at the time of the collision. The collision occurred “right behind the front door” of the bus.

Plaintiff’s witness Moore, a traffic officer stationed in the safety zone on Washington just west of 12th, did not see the collision, but heard the noise of the impact, looked toward the sound and saw the bus traveling west on Washington at 10-12 m. p. h.

The bus driver, three passengers and a pedestrian testified for defendant. The bus driver testified that he entered the intersection on a green light and had to stop on account of traffic ahead of him; that while waiting for that traffic to clear the light turned yellow. The bus was then 15-20 feet west of the east curb line of 12th Street. When the traffic cleared the bus proceeded across the intersection. It is clear from his testimony that the two lanes of southbound traffic “started to move up” before he saw plaintiff sitting on the tri-car. With his “eye on that traffic there” the bus driver “noticed the motorcycle officer parked at the curb, (and the other traffic had started to move'¡up to the crosswalk, the other two lanes pf traffic, * * Plaintiff was then looking over his shoulder, talking and laughing with the newsboy, according to the bus driver. The newsboy, called as a witness, did not confirm this. The bus was in the center of 12th Street when the bus driver “took notice of this motorcycle for the very first time.” The two southbound lanes of traffic, which had started to move up when the red light went against the bus, advanced 8 or 10 feet into the crosswalk, and there stopped to permit the bus to pass in front of them. The bus driver watched plaintiff as far as he could see him “out of the side of” his eye, but claimed he did not see the tri-car start in motion at any time, and admitted that he did not sound a horn at any time. The front of the bus was IS feet west of the west curb line of 12th Street when the collision occurred — it had “already crossed the crosswalk.” He estimated the maximum speed of the bus in the intersection at 10 m. p. h.; stated that he began slowing down and was going 8 m. p. h. when the bus was about IS feet east of the west curb of 12th Street, and judged that the bus was traveling around 5-6 m. p. h. at the time of impact.

Pedestrian Ford testified that she saw plaintiff sitting on his motorcycle in the southbound curb lane, and saw the westbound bus as it was crossing 12th Street in the westbound curb lane on the green light, going “about medium or normal” speed; that when the motorcycle began to move forward the front end of the bus was west of the west curb line of 12th Street, “half way clear of 12th Street”; that none of the other southbound traffic on 12th Street started forward when plaintiff did; that plaintiff’s motorcycle collided with the back part of the right side of the bus, and that plaintiff was looking west — had his head turned to the west — all the time he was moving.

None of the bus passengers confirmed the bus driver’s statement that the bus stopped for traffic after entering the intersection and none of them could fix the position of the bus with any degree of certainty at the time plaintiff’s tri-car started to move south, or at any time in relation to the position of the tri-car. Passenger Betz testified that the bus was traveling about 15 m. p. h., “at normal driving speed,” as it entered the intersection on the green light; that it did not slow as it entered the intersection, and proceeded across without hesitating or stopping; that the bus was beginning to slow for the bus zone west of 12th Street when the impact occurred. Passenger Búfalo testified that she noticed the traffic light turn amber for westbound traffic, and then looked and saw plaintiff; that when she first saw plaintiff on his motorcycle he was in a stopped position; that she saw plaintiff’s motorcycle start in motion; that the bus was “into 12th Street” when the motorcycle started; that plaintiff moved forward before the other southbound traffic moved; that plaintiff’s head was turned to the west, and that, judging from the noise, the bus was “a few feet” from the northwest corner when the collision took place. Passenger Scott testified that when he first saw him, plaintiff was stopped, north of the crosswalk; that plaintiff was facing west; that plaintiff “pulled up and ran right into the side of the bus.”

Whether plaintiff made a submissi-ble humanitarian case depends upon whether the evidence, considered in the light most favorable to the plaintiff, Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, 50[1, 2], shows that the bus driver in the exercise of the highest degree of care, with safety to himself and others and the bus, had the ability to avoid the collision by swerving and warning after plaintiff came into a position of imminent peril. The immediate and decisive questions are when and where plaintiff came into a position of peril, and whether thereafter the bus driver could have averted the collision by swerving and warning. All the evidence indicates that plaintiff was oblivious at all times during the forward progress of the tri-car, and that the jury reasonably could have found that defendant’s bus driver knew, or should have known, thereof. Plaintiff’s obliviousness widened the zone of peril considerably beyond the immediate path of the bus and imposed upon the bus driver the duty to act in avoidance when he saw, or by the exercise of the highest degree of care could have seen, plaintiff approaching the path of the bus oblivious of the danger and intent upon continuing into its path. Frandeka v. St. Louis Public Service Co., 361 Mo. 245, 234 S.W.2d 540; Hamell v. St. Louis Public Service Co., Mo.App., 268 S.W.2d 60, 63. Obviously, plaintiff came into a position of imminent peril sometime during the 16 or 17-foot “run” of the tri-car from its stationary position to the point of collision. In this case it was for the jury, not this Court, to find the point at which plaintiff came into a position of imminent peril. It is sufficient for our purposes that the jury reasonably could have found that plaintiff entered that position at or before the time he was halfway through his run. At or before that time it should have been reasonably apparent to the bus driver that the plaintiff was approaching the path of the bus, oblivious of the danger and intent on continuing into its path.

Of failure to warn: Viewed in the light most favorable to plaintiff, the evidence showed that in traveling from his stationary position to the point of collision plaintiff traveled 16 or 17 feet, accelerating from zero to a speed of ■ 5 m. p. h. The jury reasonably could find that plaintiff’s average speed over this distance was approximately 2i/z m. p. h. or less than 4 feet per second. See Hook v. St. Louis Public Service Co., Mo.App., 296 S.W.2d 123, 127. At that rate it would have taken approximately 4 seconds to reach the point of collision. In Sperry v. Tracy Dodge-Plymouth Co., Mo.Sup., 344 S.W.2d 108, 112, and Wofford v. St. Louis Public Service Co., Mo.Sup., 252 S.W.2d 529, 531, humanitarian failure to warn cases, this Court held that intervals of approximately 2 seconds were sufficient time for the reactions of the drivers and for plaintiff to take effective action in avoidance. In this case, if plaintiff reached a position of imminent peril at some point during the first half of his run and if the bus driver could have discovered plaintiff’s peril during those first 2 seconds, '.there would have been time, allowing ¾-second reaction time to each driver, for the bus driver to have warned and for plaintiff to have heeded the warning and stopped. At a point halfway through the run plaintiff would still have been 8 or 81/2 feet and approximately 2 seconds away from the point of collision. During the first 2 seconds of his acceleration from zero the jury could reasonably find that plaintiff was traveling at a speed less than the average speed for the entire distance; less than 2i/i m. p. h. We take judicial notice of the fact that a motorcycle, under the circumstances shown, traveling at a speed of 2½ m. p. h. or less, could be stopped almost instantly; could be stopped in a minimal space. Compare Hamell v. St. Louis Public Service Co., supra, 268 S.W. 2d, 1. c. 64; Smith v. St. Louis Public Service Co., Mo.App., 252 S.W.2d 83, 85.

This leaves the question whether under the evidence the bus driver could have discovered plaintiff’s peril at or before the time plaintiff’s tri-car was halfway through his run. We think so. The best proof of what the bus driver could have seen is the bus driver’s testimony that he did see plaintiff, when plaintiff was at a point fixed ■ by his testimony and that of other witnesses at 14 or 15 feet north of the north curb line of Washington, and when the bus was at the center line of 12th Street. True enough, he coupled this with statements that plaintiff was stationary at the time and that he never did see plaintiff in motion, but the jury could disregard these qualifications and accept his testimony that he saw plaintiff at that point and time. Plaintiff’s witness Doyle’s testimony strongly indicates that the tri-car had started up from its stationary position and was actually moving at the time the bus was at the center line of 12th Street, for Doyle placed the tri-car at the north curb line of Washington when the bus was 3 or 4 feet west of the center line of 12th. Reasonably the jury could find that when the bus driver first saw plaintiff, the latter, oblivious to danger from the approach of the bus, had commenced his run with the green light in his favor, intending to proceed into Washington, and that the bus was then 2 seconds or more in time and 56 or 57 feet in distance short of the position the bus occupied at the time of collision; that the bus was traveling at a moderate speed, and that the bus driver had sufficient time to issue a warning which would have effectively avoided the collision. Plaintiff established the minimum essentials of a case of failure to warn under the humanitarian doctrine.

Appellant objects, however, that having tried his case on the theory that the speed of the bus was 30 m. p. h. plaintiff cannot take advantage of defendant’s evidence on the speed of the bus in determining whether he made a submissible case. An examination of the question and answer reveals that Doyle’s judgment that the bus was traveling at 30 m. p. h. was an estimate or approximation, and not a positive declaration of fact. A plaintiff is not conclusively bound by his own or his witnesses’ estimates of time, speed or distance. Davis v. Kansas City Public Service Co., 361 Mo. 168, 233 S.W.2d 669, 674; State ex rel. Thompson v. Shain, 351 Mo. 530, 173 S.W.2d 406, 407-409; Davidson v. King, Mo.App., 309 S.W.2d 132, 135. It .is true that a plaintiff may not have the benefit of other evidence as to speed which contradicts or is at war with his fundamental theory of the case, Fisher v. Gunn, Mo.Sup., 270 S.W.2d 869, 874; Elkin v. St. Louis Public Service Co., 335 Mo. 951, 74 S.W.2d 600, 603-604, but plaintiff’s case was not founded upon the theory that the bus was going 30 m. p. h. through the intersection. In his opening statement plaintiff’s counsel predicted that the evidence would show that the speed of the bus was 15 or 20 m. p. h. In his closing argument counsel for-plaintiff took the position that the “speed he came through the intersection there” was 15 m. p. h. Plaintiff was not conclusively bound by the unfavorable testimony of his bystander witness Doyle, Harrell v. Berberich, 359 Mo. 551, 222 S.W.2d 733, 735, that the speed of the bus was 30 m. p. h., but is entitled to draw upon the other more favorable figures given, namely, 8, 10-12, and 15 m. p. h.

Deferring our consideration of whether plaintiff made a submissible case on failure to swerve, or on a combination of failure to swerve and to warn, we turn now to appellant’s third point, that the court erred in giving plaintiff’s main verdict-directing Instruction No. 1 for the reason that it improperly injected defendant’s antecedent negligence into a humanitarian submission. Instruction No. 1 follows: “The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence plaintiff was upon a police tri-car which was facing south on Twelfth Boulevard at or near the north crosswalk of its intersection with Washington Avenue in the City of St. Louis, and that the electric traffic signal at said intersection changed to green or go for southbound Twelfth Boulevard traffic, and that thereafter plaintiff moved and operated his said tri-car to the south and west so as to make a right turn into said Washington Avenue, and if you further find that defendant St. Louis Public Service Company, acting by and through its agent and servant Maurath, was operating a-motorbus west on said Washington Avenue' through said intersection, and that said motorbus was caused to come into collision with plaintiff’s said tri-car while plaintiff i was in the act of turning right onto said Washington Avenue, if you so find, and that plaintiff was directly injured thereby, and if you further find that after plaintiff began operating and moving his said tricar, as aforesaid, if you so find and prior to said collision between said motorbus and said tri-car, if you so find, plaintiff’s said tri-car became and was in a position of imminent peril of coming into collision with said motorbus, and of plaintiff being injured thereby, and if you find that defendant’s employee Maurath saw, or in the exercise of the highest degree of care on his part could have seen plaintiff in the aforesaid position of imminent peril, if you so1 find, in time thereafter for defendant’s employee Maurath, by the exercise of the highest degree of care, with the means and appliances then and there at hand and with reasonable safety to defendant’s said motorbus and the occupants thereof and other persons and vehicles then and there about, to have swerved said motorbus and to have given a timely and adequate warning of the approach and proximity of said motorbus, and that by so doing defendant’s employee Maurath could thus and thereby have avoided bringing said bus into collision with plaintiff’s said tri-car, if you so find, and if you further find that defendant’s employee Maurath did fail to swerve said motorbus, and did fail to give a timely and adequate warning of the approach and proximity of said motorbus and thereby was negligent in so failing, and that plaintiff was injured as a direct and proximate result of the aforesaid negligence on the part of defendant’s employee Maurath, if you find defendant’s agent Maurath to- be negligent as aforesaid, then the Court instructs you that the plaintiff is entitled to recover and your verdict should be against the defendant and in favor of the plaintiff, and this is true even though you may find and believe from the evidence that plaintiff was negligent in getting himself into the aforesaid position of peril, if any.”

We have italicized the controversial portion of the instruction.

The principle announced in the cases of White v. Kansas City Public Service Co., 347 Mo. 895, 149 S.W.2d 375, and Harrow v. Kansas City Public Service Co., 361 Mo. 42, 233 S.W.2d 644, considered in the light of the evidence and the argument of plaintiff’s counsel in this particular case, convinces us that it was error to give Instruction No. 1. In the White and Harrow cases judgments for plaintiffs under humanitarian instructions substantially and fundamentally the same as Instruction No. 1 were reversed for failure to exclude a recovery based upon primary negligence. The very basis of a recovery under the humanitarian doctrine is negligent failure to act after the peril arises. Primary antecedent negligence is not to be considered, and plaintiff’s instructions in a humanitarian case “must be so worded as to exclude a recovery based on primary negligence.” White v. Kansas City Public Service Co., supra, 149 S.W.2d, 1. c. 377. Instruction No. 1 does not require the jury to find as a predicate to a verdict for plaintiff that the alleged failure to warn and swerve hypothesized in the italicized portion of the instruction had reference to a time after plaintiff’s alleged peril arose, and does not exclude, but permits, a recovery based upon acts of primary negligence. In Mayfield v. Kansas City Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116, 1. c. 123, the rule was reaffirmed that “It is prejudicial error, in an instruction submitting humanitarian negligence, to inject therein primary negligence of the defendant * * * ; to require consideration of any antecedent negligence of * * * defendant which existed prior to the time that the humanitarian doctrine properly commenced to operate; or to predicate recovery upon any different facts than those which actually existed at the time the peril arose and was discovered, or, if there was a duty to keep a lookout, when it was discoverable by the exercise of the required degree of care.”

In that portion of Instruction No. 1 preceding the italics a humanitarian submission was stated in conventional form. But when it came to the requirement of a finding of failure to warn and swerve (the italicized portion), the language used was that of a primary negligence instruction. It failed to require in terms a finding that these failures occurred after imminent peril arose. Thus it allowed the jury to find for plaintiff upon the basis of two of the assignments of primary negligence charged in the petition (failure to warn, and failure to swerve), and then eliminated the defense of contributory negligence. If the instruction should be considered alone and abstractly, without reference to the circumstances of this particular case, a persuasive argument could be made that a jury would understand that the failures referred to in the italicized portion were the same failures that had just been hypothesized, viz., failures which occurred after the plaintiff was in imminent peril. Instructions, however, are not to be excised from the case and considered separate and apart from the circumstances under which they are given. In this particular case, when the language of the instruction is considered in the light of the evidence and the argument of plaintiff’s counsel, it is apparent that the jury may have been misled and at the very least, must have been confused. Plaintiff himself testified to a physical situation which prevented him from seeing to the east beyond the center of 12th Street. He was at the rear of the hood of the automobile in the adjacent lane to his left. The other two lanes of solid traffic to his left blocked his view. If plaintiff could not see the bus until the bus reached the center of 12th Street then, under plaintiff’s theory of the case, the bus driver could not be held to see plaintiff until the bus reached the center of 12th Street, in the absence of evidence to the contrary. Since plaintiff’s peril, under the evidence, was not discoverable until the bus reached the center of 12th Street, defendant could not be charged with any negligence on the part of the bus driver antecedent to that time and position. There was evidence that the traffic light turned red for the bus when the bus was IS or 20 feet west of the east curb line of 12th Street (considerably short of the center line of 12th), i. e., turned red when the bus was 24 to 29 feet east of the first point at which the bus driver could have discovered plaintiff’s position of imminent peril. If the jury followed the argument of plaintiff’s counsel they were led to place the blame upon defendant for negligence of its bus driver committed before the bus reached the center of 12th Street; before the humanitarian doctrine commenced to operate. In his opening argument counsel for plaintiff argued that when the light for westbound traffic went amber “action begins to take place”; that the bus had 29 feet “until he gets to the center line, * * * before he hits the center, and after he hits the center he has forty-four more feet to go before getting across the street * * *. He [the bus driver] is in a jam. * * * [H]e moved up that fifteen feet away from the corner and out into the intersection when it was hazardous to do so. And as he went across the street he went on a straight line. His zvords were, ‘I did not deviate,’ he didn’t go out a little bit even to his left. He isn’t thinking of pedestrians or of anybody rightfully using any lanes. He is thinking of himself. He is going to get through, if you please, at the point he wants to.” In his closing argument plaintiff’s counsel argued “I think this man did a dastardly thing in violation of every element of the first instruction when he decided to come against the red light and increase his speed to get across and never once as much as sounded a horn for a man or anybody who might be turning the corner. * * * This fellow [plaintiff] wasn’t looking for him, didn’t know he was coming. * * * He [the bus driver] knew about the red light before he hit the center, and he went all that distance. * * *» (Emphasis ours.)

Instruction No. 1, with the foregoing evidence and argument fresh in their minds, could mean to a jury that there was a duty to warn and swerve prior to the time the bus reached the center of 12th Street and before the imminent peril of plaintiff was discoverable, and that they could find for plaintiff regardless of the negligence of the plaintiff or the requirements of the humanitarian doctrine. Compare Mayfield v. Kansas City Southern Ry. Co., supra, 85 S.W.2d, 1. c. 122 [5]. Under this evidence, instruction and argument the jury would have been allowed to find that it was the duty of the bus driver, proceeding against a red light through a busy downtown intersection during the rush hour, to sound a warning as soon as the light turned red and to continue sounding it until he had passed through the intersection, and to swerve to his left in anticipation of the approach of the southbound traffic even before he saw plaintiff and the tri-car. This would give plaintiff the benefit of the humanitarian doctrine by eliminating the defense of contributory negligence, while at the same time imposing upon defendant liability for acts of primary negligence occurring before the time the humanitarian doctrine commenced to operate.

Plaintiff seeks to distinguish instant Instruction No. 1 from the instructions in the White and Harrow cases, supra, on the basis that the latter submitted merely that defendant “failed” to stop or warn, whereas Instruction No. 1 submitted that defendant “did fail” to swerve and warn, and thereby was negligent in “so” failing; that the assignments of negligence in White and Harrow were submitted in the alternative and disjunctive, respectively, whereas they were submitted in the conjunctive here; and that in any case the jury would not be misled, because defendant’s failures were of a continuing nature to the very instant of collision, so that from the required finding that the collision would have been avoided by taking the measures conjunctively submitted, after'notice of peril, it would fob-low as a matter of law that defendant was liable under the humanitarian doctrine if defendant never took such measures. These considerations do not change the fundamental fact that Instruction No. T failed to clearly inform the jury that the negligence hypothesized in the italicized part of the instruction referred to a time after the alleged peril of plaintiff arose.

Since the case must be reversed for this error in Instruction No. 1, we observe that it is questionable whether plaintiff should submit this case on humanitarian failure to swerve, or on any combination of defendant’s omissions which may include failure to swerve, in view of the fact that plaintiff himself testified that there were pedestrians stepping off the curb and into the crosswalk, going from the north to the south, immediately west of the west line of 12th Street. There is no duty to swerve if in swerving defendant’s vehicle will cause injury to pedestrians. It would be incumbent upon plaintiff in a failure-to-swerve case to prove that the way was open and clear for swerving with safety. Plaintiff met part of that burden by showing that there were no other westbound vehicles in the north half of Washington, but plaintiff testified affirmatively to facts indicating that pedestrians were in that area. Whether a submission of failure to swerve would be an improper statement of the law of the case, upon the basis of these facts testified to by plaintiff, raises a serious question. The harmless error rule of conjunctive submission has no application where “one of the grounds of negligence is an improper statement of the law.” Beahan v. St. Louis Public Service Co., 361 Mo. 807, 237 S.W.2d 105, 1. c. 107. And see Glowacki v. Holste, Mo.Sup., 295 S.W.2d 135; Wil-son v. Kansas City Public Service Co., Mo. Sup., 291 S.W.2d 110.

This disposition of the case makes it unnecessary to consider other points raised by appellant, none of which will necessarily reoccur on a retrial.

The judgment is reversed and the cause is remanded for a new trial.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOLLINGSWORTH, Judge.

text:
    W. O. BARTON and Olive F. Barton, Husband and Wife, Respondents. v. Gayle M. PAULY, Appellant.
    No. 48711.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.

      Robert E. Coleberd, Hale, Coleberd, Kin-caid & Waters, Liberty, for appellant.
    Wm. Harrison Norton, Williams, Norton & Pollard, North Kansas City, for respondents.
   HOLLINGSWORTH, Judge.

Plaintiffs, husband and wife, brought this action to quiet title to 3.65 acres of farm land in Clay County, Missouri. The pleadings of both parties are quite involved, but at trial the sole issue was that tried to a-jury, to wit: whether plaintiffs had acquired title to said land by adverse posses-’ sion. The jury found that issue in favor of plaintiffs. Defendant has appealed from the judgment rendered in conformity with the verdict on grounds (1) that no submissible case was made and that, therefore, defendant’s motion for a dirécted verdict filed at the close of the case should have been sustained ; and (2) error in the giving of plaintiffs’ submission instruction No. 1.

Plaintiffs and defendant own adjoining farms, plaintiffs’ farm lying north of defendant’s farm. Plaintiffs acquired their farm by deed dated August 22, 1936, and recorded on August 25, 1936. Defendant acquired her farm by deed dated January 2, 1940, and recorded January 15, 1940. Her husband died in 1958. According to the descriptions of the real estate conveyed by each of these deeds, the south line of plaintiffs’ farm and the north line of defendant’s farm coincide and, therefore, comprise the record dividing line between their respective properties. The tract of 3.65 acres to which plaintiffs claim title by adverse possession lies immediately south of the dividing line as described in said deeds. It is a strip 12.1 feet wide at the eastern boundary common to both farms and 73.46 feet wide at the western boundary common to both farms. The southern boundary of this strip runs along an old established east-west fence that has been in existence for many years and was so considered and treated by the parties hereto as the east-west division fence between their farms until this dispute arose shortly prior to the institution of this suit on January 26, 1960.

In addition to the facts above stated, plaintiffs adduced, insofar as here material, the following evidence:

Fred Woods, a licensed surveyor with 20 years’ experience, and who had made a survey of the land in question,, which was placed in evidence, testified: He is a nephew of Cornelius Woods, who formerly owned the land prior to its partition. He has known the land for “around 50 years” and knows that the fence line constituting the south line of the 3.65 acre tract to which plaintiffs claimed title by adverse possession had been in its present location for about 40 years. He became acquainted with plaintiff W. O. Barton seven or eight years ago and knows that he farmed the land north of the fence so long as he thereafter continued to reside on the farm.

Mr. Barton, hereinafter, for convenience, sometimes referred to as though he were the sole plaintiff, testified: He has lived in Kansas City North for the past three years. Prior to that time he and his wife lived on the farm since they bought it in 1936. Prior to purchase, he went with Mr. Asher, one of the owners, to view the farm, at which time Mr. Asher showed him the boundaries and pointed out the fence to which he has claimed title since he purchased his farm as the dividing line between plaintiffs’ farm and defendant’s farm. Plaintiff thereupon purchased the farm believing and claiming that said fence line constituted the division line between said farms and never heard anything to the contrary until advised by Fred Woods several years ago. After purchase, plaintiff did general farming on all of the land north of the fence; raised and grazed cattle and hogs and planted and harvested corn and alfalfa. The division fence was old when plaintiff bought the farm and he thereafter repaired it many times. It had been built in 1923. In 1950 a new fence was built on the same location as the old one. Plaintiff built the west one half of that fence and Mr. and Mrs. Pauly, defendant herein, built the east half thereof. On cross-examination, plaintiff testified: He is not yet “sure” that the 3.65 acre tract is included in defendant’s deed. He never told either Mr. or Mrs. Pauly that he claimed the strip; they did not ask and he did not say he was claiming it “no more than the rest of the farm.” He did not merely “suppose” the south fence was the boundary line; Mr. Asher told him it was.

Mrs. Lila Fann testified: She has lived near this land 67 years and knows that the fence was the division line between the north farm, once owned by her sister, and the south (defendant’s) farm. She does not know whether the location of the fence has been changed. Cornelius Woods testified: He has lived in the neighborhood 65 years and had owned the Pauly farm from the time he was nine years old until he was 22 years old. The fence line has never been changed since 1923, “only just a new fence has been put in. * * * It might have varied just a few inches.” Mrs. Cornelius Woods testified: The fence line was changed in 1923 but, insofar as she knows, it has remained in the same place since that time. Estil Smith testified: He is the Collector of Clay County. The farm owned by plaintiffs has been assessed since 1952 as containing 89.02 acres, according to the records sent in by the assessor; the records prior to that time have been destroyed. The taxes have been paid.

Defendant’s evidence, insofar as here material, was as follows :

Mrs. Pauly testified: She bought the farm in January, 1940. The deed calls for 61 acres. She (with her husband during his lifetime) has been in continuous possession and actual occupancy of the farm since she bought it. In June or July, 1950, they and Mr. Barton discussed the fence here in question. He told them their livestock was getting out and suggested the repair or rebuilding of it. He also told them that, facing north toward plaintiffs’ farm, the right (east) side of the fence was theirs and the left (west) side was his to repair. In June and July of 1950, plaintiffs and the Paulys joined in building a new fence on the line of the old fence in the manner suggested by Mr. Barton. When the fence was discussed and built, there was no “conversation” in regard to its being the dividing line; only its construction and the necessity of keeping the livestock out was discussed. Nothing was ever said to either Mr. Pauly or defendant that plaintiffs were claiming to the fence. She first learned of that claim in July, 1959, shortly prior to the filing of this suit. When defendant bought the land in 1940 and when the fence was rebuilt in 1950,, they “supposed that [the fence] was the line.” Defendant and her husband have paid the taxes on the property described in their deed ever since 1940. On cross-examination, defendant testified: Her deed calls for 61 acres. She has had a survey made since this dispute developed. From that survey she has learned that there are 61 .acres of land between the fence on the south side of her farm and the fence in dispute between her and plaintiffs; and that if the .3.65 acre tract in dispute is included in her farm, she would be possessed of 64.65 .acres. Before she bought the farm, she and her husband first went out to look at it. They “supposed” the old fence (since rebuilt by the parties hereto) on the north side was the north property line of the farm. 'She admits that plaintiffs have farmed and grazed their livestock up to the fence line in dispute ever since defendant acquired the farm in 1940.

In support of her contention that plaintiffs made no submissible case of title to the .3.65 acre tract by adverse possession, defendant cites some eleven cases, typical of which are: Bell v. Barrett, Mo., 76 S.W.2d 394, 396; Horton v. Gentry, 357 Mo. 694, 210 S.W.2d 72, 75; Grimes v. Armstrong, Mo., 304 S.W.2d 793, 799; Krumm v. Streiler, Mo., 313 S.W.2d 680, 686; Conran v. Girvin, Mo., 341 S.W.2d 75, 90; Carlisle v. Keeling, Mo., 347 S.W.2d 191, 194. We have no complaint with the law announced in any of them. All of them declare that title by adverse possession is to be adjudged only when each and every element of adverse possession, to wit: the possession must be (1) hostile, that is, under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous, is clearly shown by substantial evidence to have existed for the statutory period of ten years. Section 516.010 RSMo 1959, V.A.M.S.

As we view the evidence, the admissions made by defendant established beyond question that plaintiffs’ possession of the strip of 3.65 acres lying south of the the true line between the farms and north of the fence enclosing the south side of that strip has been actual, open and notorious, exclusive and continuous from January 2, 1940, the date on which defendant acquired title to her farm. Prior to that date both Mr. and Mrs. Pauly saw that fence and “supposed” that it was the division line between their farm and the farm on the north. Necessarily, they thereby understood that the land to the north of that fence was not in their possession but was possessed by the owners of the farm on the north. From that date henceforth, defendant has resided on the farm and necessarily saw as often as she looked, as could any one, that plaintiffs were in actual, open and notorious, exclusive and continuous possession of the land north of the fence and were actually and physically operating it as their farm. Consequently, there can be no valid contention that plaintiffs’ possession during those years was anything less than actual, open and notorious, exclusive and continuous. But, says defendant, there has been no clear showing that plaintiffs’ “claim to the property in question was hostile; that is, an intention to claim to the fence, regardless of the record title.” She bases that assertion upon Mr. Barton’s testimony that plaintiffs never told anyone that they claimed to the fence and her contention that she never knew that plaintiffs so claimed until she received a letter from plaintiffs’ counsel, shortly prior to the filing of this suit, advising her that plaintiffs asserted title to the fence, and that when the fence was rebuilt in 1950 both parties merely “supposed” the fence was their division line.

Therefore, the sole question of the submissibility of the issue of adverse possession is: Was plaintiffs’ possession of the 3.65 acre tract hostile, that is, was it their “intention to claim to the fence, regardless of the record title” ? Mere possession alone for the statutory period is not sufficient to support acquisition of title by adverse possession. “There must be an unequivocal claim of ownership to make the possession adverse. * * * In determining the character of the possession, the important factor is, not whether the true line is known or whether there is a mistake as to the boundary, * * * it is the intent with which the boundary fence is built and the unequivocal character of the claim made thereafter, which is decisive of the question.” Bell v. Barrett, Mo., 76 S.W.2d 394, 396. This court has many times reaffirmed the holding in State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, 176: “The principle, as stated in all of our prior decisions, may be reduced to this : If the possessor occupies the land in question intending to occupy that particular piece as his own, his occupancy is adverse. It is not necessary that he intend to take away from the true owner something which he knows belongs to another, or even that he be indifferent as to the facts of the legal title. It is the intent to possess, and not the intent to take irrespective of his right, which governs. Possession is a legal concept. * * * One may have such an intent in the case of property actually belonging to another, because he intentionally wants to take it away from the owner. But he may also have this intent because he is mistaken as to the facts of legal ownership.” See also Agers v. Reynolds, Mo., 306 S.W.2d 506, 511-512; Mooney v. Canter, Mo., 311 S.W.2d 1, 5; Krumm v. Streiler, Mo., 313 S.W.2d 680, 686; Grimes v. Armstrong, Mo., 304 S.W.2d 793, 799; Ennis v. Korb, Mo., 347 S.W.2d 671, 676.

The old fence admittedly stood as the only physical division line between these separately owned and separately operated farms from the time Mrs. Pauly acquired her deed in 1940 until 1950. At that time, following complaint of Mr. Barton that the Paulys’ livestock 'was getting through that fence onto plaintiffs’ farm, the parties, in the manner commonly employed by farmers in defraying the cost of construction and maintenance of division fences,, constructed a new fence along the line of the old one. True, defendant says that she acquiesced in that procedure, not, because she thought plaintiffs claimed to own the land up to that fence, but solely because of the necessity of keeping defendant’s livestock away from plaintiffs’ farming operations. We think, however, a jury would be warranted in finding that the new fence was built on the line of the old one because the Paulys knew that both they and plaintiffs had been in possession of their respective farms from 1940 under unconditional claim of ownership to the fence line dividing them, and that, in recognition of those claims, they, in 1950, agreeably joined in building the new fence, and no suggestion is made that there was any change in the nature and extent of the possession or claim of ownership of either of the parties from the time the fence was built until shortly before this suit was brought in 1960. Clearly, the evidence warranted submission of the issue of the “hostility” of plaintiffs’ possession.

Defendant next contends that plaintiffs were not entitled to submission of their case because they filed no responsive pleading to the counterclaim filed by her 'and that she was therefore entitled to a judgment as therein prayed, which, if rendered, would1 have barred submission of plaintiffs’ claim of title by adverse possession. Plaintiffs’ petition (among many other things not here material) pleaded title by adverse possession to the 3.65 acre strip in question and! further alleged that defendant’s deed was. erroneous in including within its description of the land conveyed to her the strip in question. The prayer was for a decree correcting defendant’s deed and adjudging plaintiffs to be the owners of the 3.65 acres, in question. Defendant’s answer denied plaintiffs’ claim of title to the 3.65 acre tract by adverse possession and, by way of counterclaim, defendant asserted not only record title to the 61.acres of land described in her deed but averred title to the whole of her farm by adverse possession and prayed adjudication of title to the whole thereof in her. When the case came on for trial, however, each of the parties had obtained a survey and both knew that the only question for trial was that of plaintiffs’ claim of title to the 3.65 acre strip by adverse possession and the case was tried solely upon that issue. No other submission was sought by either of them. Defendant made no complaint of plaintiffs’ failure to plead to the counterclaim until just before the close of all of the evidence. After the close thereof, defendant moved for a directed verdict, the seventh giound of which reads as follows: “The allegations of defendant’s counterclaim are admitted by plaintiffs because of the failure of plaintiffs to file a reply or responsive pleading to same.” Actually, it would seem that defendant’s counterclaim had no place under the only issue tried or submitted. But, in any event, defendant waived whatever rights she had by going to trial on the issue submitted as though a reply had been filed. Walker v. Huddleston, Mo.App., 261 S.W.2d 502, 505; Pleiman v. Belew, 360 Mo. 219, 227 S.W.2d 733, 735.

Defendant also contends that Instruction No. 1 given in behalf of plaintiffs was prejudicial in that it assumed and advised the jury as a fact that the fence line constituting the southern boundary line of the 3.65 acre tract had been a known property line for more than 31 years. The instruction does assume that to be the fact. The opening paragraph of the instruction reads:

“The Court instructs the jury that if you find and believe from the credible evidence that plaintiffs W. O. Barton and Olive Barton, were in possession, since August 22, 1936, of the following described property in Clay County, Missouri, being the premises in controversy, to-wit;
“Beginning at a point 1003.86 feet South of the Northwest corner of the East ½ of the Northwest fractional ¼ of Section 3-52-33 in Clay County, Missouri; thence East 3723.18 feet to a point in the Westerly right-of-way line of Route U.S. 169; thence South along said right-of-way line 12 feet to a point, said point being in a fence line which has been a known property line for more than 31 years-, thence West along said fence line 3723.18 Feet to a point; thence North along a fence line, said fence line having been established as a property line for.more than 31 years, 73.46 feet to the point of beginning;”

following which, said instruction hypothesizes a finding of facts in accordance with the evidence tending to establish plaintiffs’ claim of ownership and directs a verdict in their behalf if the jury so finds the facts to be. (Italics supplied.)

The undisputed evidence shows that the fence line here involved had been in existence for more than 31 years and had constituted the only partition fence between the farms involved and that both parties believed such line to be the true division line between their farms. But that fact does not solve the question. The only live issue in the case- was whether that fence line, by virtue of adverse possession by plaintiffs of the 3.65 acre strip lying north thereof, had become the property line between plaintiffs’ and defendant’s farms. For the trial court to assume and state in an instruction given the jury that the fence line along which the south line of the 3.65 acre tract coursed “has been a known property line for more than 31 years” was to^ say to the jury, in effect, that the fence line had been the knozvn property line between these farms during that period, because, obviously, it could not have been a known property line between any other properties during those years. If the jury accepted that statement as a fact, as we must assume it did in the absence of fact or circumstance reasonably to indicate it did not, defendant’s sole defense was materially prejudiced at the beginning of the jury’s deliberation. This for the reason that if the fence line between the farms “has been a known property line” between these farms during those years, there was little, if any, issue for the jury to pass upon.

Other objections are leveled against the instruction but, inasmuch as it necessarily will be redrafted in the event of a new trial, the parties and the court may consider the necessity of any further rewording thereof in the light of the views expressed in this opinion and the evidence adduced at such trial.

The judgment is reversed and the cause remanded.

All concur.


author: EAGER, Presiding Judge.

text:
    Frank THORNE, Jr., Respondent, v. Virgil Dean THORNE and Willis E. Baker, doing business as Baker Truck Lines, Appellants.
    No. 48752.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.

      Robert L. Jackson, Kansas City, for appellants.
    John J. Gardner, Olathe, Kan., Thomas A. Sweeny, Kansas City, for respondent, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel.
   EAGER, Presiding Judge.

The present suit is one for personal injuries. The trial court entered judgment in favor of plaintiff and against both defendants for $31,750 “for personal injuries” and $1,000 “as property damage,” upon the purported verdict of a jury. The legal sufficiency of that verdict is the principal question raised here. A very brief statement of the facts will suffice.

Plaintiff, accompanied by a passenger, was driving his Ford pickup truck west along the north half of Guinotte Avenue in Kansas City at about 4:45 on the afternoon of April 9, 1959; he had slowed almost to a stop, or perhaps had stopped, in order to make a left turn into the driveway of a filling station on the south side of the street; he was in the inside lane of the north half of the four-lane street, waiting for the oncoming traffic to clear. He testified that his left turn signal was operating and had been so operating for nearly half a block, and that his stop was gradual. Defendant Thorne, driving a tractor trailer unit with a sixteen-ton load behind plaintiff and in the same direction, ran into the rear of plaintiff’s vehicle and knocked it across the center line of the street into a head-on collision with an oncoming car. It is conceded that the defendant Thorne was acting as an agent for the other defendant. The identity of the surnames of plaintiff and the individual defendant is purely coincidental. Defendants were charged with negligence in sundry respects, including negligent lookout, negligent speed and a negligent failure to stop, slow or swerve so as to avoid the collision. Defendants do not claim here that plaintiff failed to make a submissible case. Contributory negligence was an issue at the trial, but that question is in no way involved here.

Plaintiff suffered very severe injuries, consisting principally of fractures of the upper jaw, facial bones on both sides and across the nose, with a fracture line running' into the base of the skull. The operative treatment was extensive and caused much discomfort and personal inconvenience. Plaintiff, at trial, testified to certain remaining serious effects, but his general recovery was regarded as good. We shall not need to develop this phase further.

The jury was instructed very fully on the issues of negligence pro and con, and on the matter of damages. No objections are made here to any of the instructions. The jury was also given an instruction (No. 11) containing several forms of verdict; all of those in plaintiff’s favor began with the words: “We, the jury find the issues for plaintiff * * ⅜ ”; and they concluded with the words: “and do assess his damages at $-.” The forms so given distinguished between damages for personal injuries and property loss and permitted separate assessments for either or both. This instruction further told the jury that its verdict “should be written on a separate paper, and not on one of these instructions.” After deliberating, the jury returned to the court a sheet of paper containing the following words and figures: “Persnal injuris $31,750.00 Damages $1000.00.” Below this writing appeared the signatures of ten jurors. When the court received this paper it read the quoted words and figures aloud, asking the foreman whether the first amount was $31,150; the foreman replied that it was "seven hundred.” At that point the following further colloquy ensued : “The Court: ‘— $750.00. Damages $1,000.00.’ Do you mean by ‘damages’ property damage? The Foreman: Yes. The Court: I am going to write in here in the presence of the jury ‘property damage’, then have counsel look at it. This is signed by ten jurors, is that correct, Mr. Foreman? The Foreman: Yes, sir. The Court: Now, is that the verdict of the ten who signed this verdict? (Jurors indicate affirmatively.)” The court wrote the word “property” on this paper, before the word “damages.” Following the above the transcript notes — “Jury Excused.” There is nothing in the record to indicate that counsel for either party had seen the paper up to this point.

Thereupon a colloquy ensued between court and counsel, and at that point counsel for defendants moved that the purported verdict be stricken and a mistrial declared, for the reasons: that on its face it was improper, that the jury had not followed the court’s instructions, that it had not “found the issues” for plaintiff and against the defendants, that it had made no finding with regard to the negligence of the defendants’ or plaintiff’s contributory negligence, that the paper “is an estimate generally of some sort” and that it did not constitute a verdict of the jury. As a matter of clarity, we note here that these objections were fairly preserved in defendants’ motion for a new trial, about which no question is raised.

At this point the court stated to counsel that the foreman had signed his name on the first verdict form on Instruction No. 11. That particular form contained separate specific findings of the issues for plaintiff on his claims for personal injuries and property damages, with blank spaces for the assessment of ,an amount as damages on each. No signature appears on the typed Instruction as contained in our record nor is there any other reproduction of the form in the record, but, of course, we take the court’s statement to be true. There ensued some further colloquy, the court indicating that it felt that it was clear that the “verdict” amounted to a finding for plaintiff on both “personal and property damage,” and that “the Court could have corrected the form of the verdict here in the presence of counsel and the jury or could have sent the jury back to the jury room to rewrite the verdict.” At the conclusion of this presentation the court overruled defendants’ motion to strike and for a mistrial. No effort was made to call the jury back or to correct the “verdict” further; and judgment was entered as already indicated. At the hearing on defendants’ after-trial motion for judgment or, in the alternative, for a new trial, plaintiff’s counsel presented as exhibits affidavits from all the jurors. In substance, these merely recited that all twelve jurors had decided and “found the issues for the plaintiff,” but that only ten could agree on the amounts stated. The after-trial motion was overruled and' this appeal duly taken.

We have been cited to no case involving a situation like this one, nor have we found any in our own research. We note first, therefore, the principles generally held applicable where defective verdicts have been presented. A verdict is the sole basis of the judgment to be entered in a jury case and if it is not sufficient to sustain the judgment, the latter is void. Spangler-Bowers v. Benton, 229 Mo.App. 919, 83 S.W.2d 170, 175; Newdiger v. Kansas City, Mo.App., 106 S.W.2d 51, 52, aff. 342 Mo. 252, 114 S.W.2d 1047; Singleton v. Kansas City Baseball & Exhibition Co., 172 Mo.App. 299, 157 S.W. 964; Proctor v. Garman, 203 Mo.App. 106, 218 S.W. 910. The verdict must be responsive to all the material issues, and it should find the issues for or against the respective parties. Lummi Bay Packing Co. v. Kryder, Mo. App., 263 S.W. 543; Albrecht v. Piper, Mo. App., 164 S.W.2d 105; Singleton, supra; Proctor, supra; Newdiger, supra. Mere surplusage in a verdict has often been disregarded. Kimberlin v. Roberts, 341 Mo. 267, 107 S.W.2d 24, 27; State ex rel. St. Louis Public Service Co. v. Becker, 334 Mo. 115, 66 S.W.2d 141, 144; McMonigal v. North Kansas City Development Co., 233 Mo.App. 1040, 129 S.W.2d 75. It has been stated that the courts will construe a verdict liberally in an effort to ascertain the jury’s intent. 53 Am.Jur., Trial, § 1052, p. 716. And, of course, the court considers a verdict to see if it can find a reasonably clear intent expressed therein, though perhaps inartfully expressed. State v. Russell, Mo., 265 S.W.2d 379, 44 A.L.R.2d 617; Shuff v. Kansas City, 221 Mo.App. 505, 282 S.W. 128; 89 C.J.S. Trial § 496, pp. 157-158.

Section 510.230 RSMo 1959, V.A. M.R. and Rule 71.02 of this court, V.A.M.R. provide that in “every issue for the recovery of money only, * * * the jury shall render a general verdict.” Essentially, a general verdict is a finding or pronouncement by the jury on all the issues submitted to it, including, of course, the issue of damages, if appropriate. Will v. Hughes et al., 172 Kan. 45, 238 P.2d 478, 484; Gilmore v. Mulvihill et al., 109 Mont. 601, 98 P.2d 335. And see Home Trust Co. v. Josephson, Banc, 339 Mo. 170, 95 S.W.2d 1148, 1155, 105 A.L.R. 1063. After the reception of a verdict and the discharge of the jury, the court may correct or amend it in mere matters of form, but never in matters of substance. McIlvain v. Kavorinos, 358 Mo. 1153, 219 S.W.2d 349; State ex rel. St. Louis Public Service Co. v. Becker, 334 Mo. 115, 66 S.W.2d 141, 144; Powell v. Bierman, Mo.App., 22 S.W.2d 854; Boudreau v. Myers et al., Mo.App., 54 S.W.2d 998. And the court may always require the jury to retire again to correct its verdict or to find a new one, in case of defects or insufficiency. Singleton v. Kansas City Baseball & Exhibition Co., 172 Mo. App. 299, 157 S.W. 964; Blackman v. Botsch, Mo.App., 281 S.W.2d 532; Lindstrom v. Kansas City Southern Ry. Co., 202 Mo.App. 399, 218 S.W. 936, 937; Turley v. National Ammonia Co., Mo.App., 299 S.W. 53. It has also been held that the trial court could properly require the jury to correct its verdict in open court. Buttron v. Bridell, 228 Mo. 622, 129 S.W. 12; Christopher v. White, 42 Mo.App. 428. Indeed, verdicts have been corrected or inconsistent verdicts clarified by the recall of juries after they have actually been discharged. Keyes v. Chicago, B. & Q. R. Co., 326 Mo. 236, 31 S.W.2d 50; Riley v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 666.

In numerous cases affidavits of jurors, when offered in support of the verdict, have been considered in order to explain an ambiguity or to clarify the

verdict. Jordan v. St. Joseph Ry., Light, Heat & Power Co., 335 Mo. 319, 73 S.W.2d 205, 210; Stith v. J. J. Newberry Co., 336 Mo. 467, 79 S.W.2d 447; Hays v. Hogan, 273 Mo. 1, 200 S.W. 286, LRA 1918C 715, Ann.Cas.l918E 1127. In many such cases, as in those just cited, the affidavits were offered to explain ambiguities in the amount of the verdict. But a verdict cannot be made, created or obtained by affidavits or otherwise, when there was none initially. Lummi Bay Packing Co. v. Kryder, Mo. App., 263 S.W. 543. Kaimann v. Kaimann Bros., Mo.App., 182 S.W.2d 458, 462. Certainly, the verdict of a jury must be reasonably clear and definite, and it must contain at least the substance of the legal requirements. See, generally: Singleton, supra; Kaimann, supra; Lummi Bay Packing Co. v. Kryder, supra.

We have determined that here there was no verdict, and that the court erred in entering judgment. The court should have called the deficiency to the attention of the jury and required it to follow the instructions and the verdict forms. It failed to do so. In Singleton, supra (157 S.W. at loc. cit. 966) the court said: “It is such an easy matter to call the jury’s attention to the ambiguity in the verdict at the time it is returned, and have it corrected and made absolutely definite and certain before the jury is discharged, that no room ought to be given for the rule that an uncertain or ambiguous verdict can be received and recorded, and then helped out by judicial construction when judgment is to be rendered upon it. As said in Newton v. St. Louis Railroad, [168 Mo.App. 199,] 153 S.W. 495: ‘The only proper and safe way to correct such an ambiguity in the verdict is for the trial court at the time of its rendition to call the attention of the jury to the defect and have the correction made in the verdict before it is received and recorded.’ ” Instead the court here merely cleared up an ambiguity in the “persnal injuris” figure and, with the apparent consent of the jury, inserted the word “property” before the word “damages.” At no time was the jury required to perform the essential act of finding the issues for one party and against the other in such form and manner that a proper verdict could be received and recorded. By entering judgment on the purported and insufficient verdict the court has, in fact, interpolated a finding where the jury made none, and it has thus supplied a matter of substance rather than form.

It is urged here that the plaintiff’s verdict form (as contained in original Instruction No. 11) signed by the foreman, should supply any deficiency. It is true that it has been held, at least once, that a valid verdict may consist of two separate pieces of paper. U. S. Water & Steam Supply Co. v. Jacobia, 156 Mo.App. 597, 137 S.W. 906. But granting that, the verdict form signed by the foreman only could not be effective for any purpose; his signature would be effective only in the event of a unanimous verdict and everyone here concedes that this jury was not unanimous. Such a paper cannot aid effectively in creating a verdict here. And, since the paper thus referred to is not shown to have been received and recorded as a verdict, or as any part thereof (and does not appear here), it could not logically be considered by us as part of a verdict in any event.

As corrected, the supposed verdict contained the statement “Property Damages $1000.” In plaintiff’s amended petition he alleged that his property damage was $1200; in his deposition, as referred to at the trial, he had apparently estimated the damage at that figure. At the trial, however, he testified that he was then asking only $700 on that item and that he had reduced the claim to that figure. The jury wholly disregarded this testimony. It is true that in some cases, as counsel argue, a jury may decide as between conflicting testimony in a party’s deposition and at trial, Moore v. Ready Mixed Concrete Co., Mo., 329 S.W.2d 14; and that an owner may ordinarily testify to the reasonable value of his car, State ex rel. Spears v. McCullen, 357 Mo. 686, 210 S.W.2d 68. What we have here, however, is not a jury’s evaluation of divergent bits of testimony, or of opinion evidence, but its total disregard of an express waiver by plaintiff of a part of his original claim. We do not consider this as an independent ground for invalidating the total verdict; standing alone, it could have been corrected by re-mittitur. But we note the fact as a further illustration of the failure of this jury to follow the instructions and the trial proceedings, and of the insubstantial nature of the jury’s consideration, generally.

Finally, plaintiff urges that defendants’ counsel waived the insufficiency of the purported verdict by not protesting at the time it was read and before the jury was discharged. They cite Riley v. St. Louis Public Service Co., Mo.App., 245 S.W.2d 666, but apparently only to show that defendant might have asked, even after the jury was discharged, that it be recalled. Also mentioned is Cable v. Metropolitan Life Ins. Co., 233 Mo.App. 1093, 128 S.W. 2d 1123, which is distinguishable on its facts, the verdict there merely being for a lesser amount than defendant claimed it was liable for, if anything. Here the court purported to read the verdict; naturally it could read only amounts and the words “persnal injuris” and “damages,” for that is all there was, except signatures. The court then asked regarding the larger figure (a “7” or a “1”), inserted the word “property,” and asked if that was the verdict of the jury. He then, immediately as we understand, excused the jury. Primarily it was the duty of the court to require the jury to correct such a verdict as this. There is a fair inference that counsel on both sides supposed that the court was merely reading the figures and the words “personal injuries” and “damages” from a verdict ■otherwise in the usual form. We are not convinced that counsel had any sufficient opportunity to realize the real invalidity in the verdict until after the jury was excused. This impression was largely confirmed in the oral argument. We also note that the court did not show or tender the verdict to counsel until after the jury was excused. Substantially as soon as counsel for defendants saw the verdict, he moved to strike it and for a mistrial. He had a perfect right to take that action and his motion would have been wholly inconsistent with a request that the jury be returned to reconsider its verdict. If such action was to be taken at that point, either the court or plaintiff’s counsel should have initiated it, and apparently the jury was still subject to call in the building, though excused. We have no doubt that counsel may and do, in some cases, waive informalities and defects in a verdict which do not render it void on its face, but we are wholly unwilling to hold that counsel may, by inaction, create a verdict where none exists.

For the reasons stated, we find that the verdict was wholly insufficient and that the court committed error in entering judgment upon it. In view of the foregoing it is unnecessary to consider the further point made of alleged prejudicial errors occurring during the final arguments.

The judgment is reversed and the cause remanded for retrial.

All concur.


author: BARRETT, Commissioner.

text:
    Johnnie W. KILLIAN, Appellant, v. WHEELOC ENGINEERING COMPANY, Respondent.
    No. 48469.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1961.

      Barnhart & Sommers, Don B. Sommers, St. Louis, for plaintiff-appellant.
    John J. Cole, Heneghan, Roberts & Cole, St. Louis, for defendant-respondent.
   BARRETT, Commissioner.

Johnnie W. Killian, a common laborer employed by a general contractor, was injured when he stepped from a ladder into a pile of metal duct woi'k on the basement floor of a house under construction. According to Killian the pieces of tin were left at the foot of the ladder by a tinner era-' ployed by a subcontractor, Wheeloc Engineering Company, who had the contract to install the furnace and duct work. In his suit against the subcontractor for negligent injury a jury returned a general verdict in his favor and fixed his damages at $29,-■000. The trial court sustained the defendant subcontractor’s motion for a new trial upon specified grounds IS, 19, 20 and 21 and granted a new trial upon all issues. Killian has appealed and contends that the ■order granting a new trial is not sustainable upon any of the four grounds, or, if it is that a new trial should be limited to the issue of damages only. On the other hand, the respondent contends that the plaintiff did not make a submissible case, that he was guilty of contributory negligence as a matter of law and in any event that the trial •court appropriately granted a new trial for the specified reasons and for many other reasons as well.

The subcontractor’s contention that plaintiff failed to make a submissible case is threefold: first, that he had to rely on circumstantial evidence and it is urged that the necessary facts to support the verdict may not be inferred without resort to conjecture and mere speculation; second, that he is conclusively bound by the testimony of •defendant’s tinner, called as a plaintiff’s witness, that the tinner did not leave or stack the sheet metal near the bottom of the ladder, and third, that he failed to look “as he stepped off the ladder” and is therefore guilty of contributory negligence as a matter of law.

The tinner, and he was the only tinner on “the(se) jobs,” did say that he did not “at any time on that job stack any pipe in front of a ladder in the basement of any of those homes.” However, he was the tinner who installed all of the furnace and duct work for the defendant in a “whole flock of houses” and some of his duct work was “right where the stairway comes out.” While all of the furnace work was a “pattern job” and the duct work was prefabricated at specified lengths and sizes and supposed to fit, there were short length pieces of tin and it was necessary to cut some of the pipe to the registers, “they have to be cut on the one side.” And, it is the custom of the trade (one of the defendant’s points in the trial) as it is with plumbers and electricians, when they “make a fitting,” to “drop them and leave them lie” and it is the duty of the general contractor’s laborers to clean up “the trim and the scrap.” In the house in which the plaintiff was injured the stairway had not been installed and the only entrance to the basement was a temporary “homemade ladder” from the first floor.

Killian had been in the basement the day before, Wednesday afternoon, and the tin-ner was then engaged in installing the duct work for the furnace along the west wall and no other work was then being done in the basement. The next day, April 17, 1958, shortly after eight o’clock, he returned to the basement to see how much cement would be needed to fill an open space between the basement wall and the floor joist and the same tinner was installing duct work in the northwest corner. On that trip Killian did not see pieces of metal around the ladder. When he left the basement his foreman asked him to perform some task in another house and when he returned about an hour and a half later with his bucket of cement he says that he looked or “glanced down in the basement and I didn’t see anything.” He then proceeded down the ladder backwards, the bucket of cement in his right hand, and as he got to the bottom of the ladder “I started to step off as I half-turned I saw the metal, I jumped to miss it and I struck my right leg in it.” Later he said that he looked before he started down the ladder and saw nothing on the floor, but “as I partially turned to make my step off the ladder, I saw it,” he had released his “hold” and “I started to push myself — my left foot was still on the ladder — to shove myself to miss the metal.” On cross-examination he said that there was “a round pile” of metal and debris two or three feet square, one-half to one foot back from the ladder. He could not say exactly what was in the pile of debris and he could not precisely describe the pieces, but he said that there was some sheet metal and duct work, some round pieces and one “shirred piece” and it was “Round furnace ducting they put the heating in and square.”

Thus, plainly, there was testimony other than the tinner’s that pieces of furnace ducting had been left on the floor near the foot of the ladder and the plaintiff was not conclusively bound by the tinner’s testimony that he had not “stacked” any furnace material near the ladder. Lay v. McGrane, (Mo.) 331 S.W.2d 592; Burr v. Singh, 362 Mo. 692, 243 S.W.2d 295. The respondent poses a series of questions which it says are unanswered and may not be inferred except by resort to mere speculation and guesswork, but it is not necessary to analyze and answer these questions in this opinion. As indicated, whether there was furnace ducting material on the floor was not dependent entirely on circumstantial evidence, how and when it got there may be but the inference- that it was there through the agency of the defendant’s tinner is certainly permissible from the circumstances. 65 C. J.S. Negligence § 266, p. 1199. Even though it was the custom of tinners to leave the fittings where they fell and ultimately the duty of common laborers to remove all debris (Komeshak v. Missouri Petroleum Products Co., (Mo.App.) 314 S.W.2d 263), it does not necessarily follow that the defendant’s employee had not breached the duty of due care to other employees on the job. Some facts were necessarily established circumstantially, to illustrate, there is no positive evidence as to the particular house in which Killian was injured. The house was in the eleven hundred block on June Avenue, Killian thought it was “next to the house that the basement collapsed under the house, the east wall, it was next to that house and I was thinking it was 1148 and I haven’t been back out there.” Incidentally, the development of this subdivision involved the construction of three to four hundred houses of identical dimensions and Killian’s employer was the general contractor and the respondent was the subcontractor to install all furnace and duct work. It is not necessary to consider the numerous matters the respondent has raised against the plaintiff’s case on its substantive merits, the only concern here is whether, prima facie, the plaintiff made a submissible case. The respondent was under a duty to exercise reasonable care not to cause injury to the employees of others, including the employees of the general contractor, and of course is liable for the negligence of its employees. 57 C.J.S. Master and Servant, § 610, p. 381; annotation 38 A.L.R. 403, 455; Miller v. Brunson Construction Co., (Mo.) 250 S.W.2d 958, and see for the general contractor’s liability 20 A.L.R.2d 868. The noted and illustrative evidence is sufficient to indicate that the respondent’s negligence and the plaintiff’s contributory negligence were jury questions, or, that the plaintiff’s evidence made a submissible case. Neither is it necessary to match cases and demonstrate, the following cases (not cited by the parties) indicate the circumstances, the reasons and the applicable general rules. Carter v. John Hennes Trucking Co., 7 Cir., 210 F.2d 443; McGeary v. Reed, 105 Ohio App. 111, 151 N.E.2d 789; Ignagni v. A. J. Peters & Son, Inc., 147 Cal.App.2d 661, 305 P.2d 953; Liddle v. Collins Construction Co., (Mo.) 283 S.W.2d 474; Reichmuth v. Adler, 348 Mo. 812, 155 S.W.2d 181; Kichling v. Humes-Deal Co., (Mo.App.) 16 S.W.2d 637.

As for the court’s order granting a new trial, we are not concerned here, as the appellant indicates, with whether the $29,000 verdict is excessive, or with whether there is evidence to support the award, or, had the trial court ordered a remittitur, with whether there is substantial support for the remittitur. The trial court sustained the motion for a new trial on specifications 15, 19, 20 and 21, the last two grounds are that (a) the verdict of the jury is the result of bias, passion and prejudice on the part of the jury and (b) the verdict of the jury is so excessive as to indicate bias, passion and prejudice on the part of the jury in favor of plaintiff and against defendant. These are discretionary grounds for granting a new trial and the problem here is whether, viewing the record favorably to the court’s views, there is evidentiary support for the ruling. Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R. 2d 972; Bailey v. Interstate Airmotive, Inc., 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R.2d 710. Killian’s initial injury was a four or five inch cut on his right leg requiring four or five stitches. The wound became infected and did not respond to drugs or other medication, one doctor made the diagnosis of pyogenic granuloma, and there were several incisions and skin grafts, but there were continual reinfections resulting in a permanent “draining sinus.” It was the opinion of his medical experts that the plaintiff’s injury was permanent. On the other hand, a surgeon who had treated the plaintiff, “excised the wound and removed it completely and resutured” and put on a “split-thickness skin graft,” said that as of October 28, 1959, the wound had healed. An industrial surgeon said that there was a “drainage sinus,” the exuding material being “seropurulent.” He thought the infection was in the soft tissue and could be removed, and this was his conclusion, “I don’t believe it is permanent, and I think it can be cured.” Again without further detailed elaboration, the defendant’s evidence is substantial and this court cannot say as a matter of law that it does not support the trial court’s finding. Combs v. Combs, (Mo.) 295 S.W.2d 78.

An order granting a new trial on all issues, rather than on damages alone, is also reviewable for an abuse of discretion only. Annotation 29 A.L.R.2d 1199. The trial court has specifically found that the verdict was the result of passion and prejudice on the part of the jury and in addition to the excessiveness of the award the court evidently considered other trial matters, specification 15, (Bailey v. Interstate Airmotive, Inc., supra) and in the face of that finding, upon this record, it may not be said that the verdict should not be set aside in its entirety. Taylor v. St. Louis Public Service Co., (Mo.) 303 S.W.2d 608; Williams v. Kansas City, (Mo.) 274 S.W.2d 261.

In this view of the appeal it is not necessary for this court to consider the correctness of instructions and numerous other matters raised by the respondent. For the reasons indicated the order is affirmed and the cause remanded.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All concur.