author: STOCKARD, Commissioner.

text:
    Emma FICKEN, Respondent, v. Nadine HOPKINS, Respondent, Arlie J. Goetz and E. L. Eickhoff, Appellants.
    No. 50593.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      Gayles R. Pine and Pine, Welling, Jones & Mitchell, Warrensburg, for plaintiff-respondent Emma Ficken.
    Robert L. Wesner, and Wesner, Wesner & Meyer, Sedalia, for respondent Hopkins.
    W. K. Gibson and Martin, Gibson & Gardner, Sedalia, for appellants.
   STOCKARD, Commissioner.

On November 3, 1959, about 9:30 o’clock in the evening when the weather was misty or drizzling rain, Arlie Goetz was operating an ambulance, the property of E. L. Eick-hoff, north on Grand Avenue in the City of Sedalia, and was taking Albert P. Ficken, who had suffered a stroke, to a hospital. In the back of the ambulance with Mr. Ficken were Charles Fox, who was administering oxygen to him, and also Emma Ficken, his wife, plaintiff in this action. Nadine Hopkins was operating a Chevrolet north on Grand Avenue ahead of the ambulance, and when she attempted to turn left onto 18th Street a collision occurred between the ambulance and the Chevrolet. Mrs. Ficken brought suit in two counts, the first for wrongful death of her husband, who died shortly after the collision, and the second for personal injuries to herself against Nadine Hopkins, Arlie Goetz, E. L. Eick-hoff and Charles Fox, but at the trial she dismissed her suit as to Eickhoff and Fox. At the close of all the evidence the trial court directed a verdict in favor of Nadine Hopkins on plaintiff’s suit as to both counts. The jury returned a verdict in favor of plaintiff and against Goetz for $10,000 on each count. The trial court thereafter granted Goetz a new trial as to Count I, the action for wrongful death. Upon retrial the verdict on Count I was for Goetz and against plaintiff, and this presents no issue on this appeal. Goetz has appealed from the judgment against him on Count II, plaintiff’s action for personal injuries, in the amount of $10,000.

Goetz, Fox and Eickhoff each filed a cross-claim against Nadine Hopkins. Goetz sought $10,000 for personal injuries, and Eickhoff sought $640 for property damage to and loss of use of his ambulance. The Fox cross-claim was dismissed. Plaintiff’s action and the two remaining cross-claims were all tried together. The jury verdict was in favor of Hopkins on each cross-claim, and Goetz and Eickhoff have each appealed. This court has jurisdiction because the amount in dispute on this appeal is $20,640.

Instruction No. 5, plaintiff’s verdict directing instruction on Count II of her petition is challenged by Goetz, and preparatory to the discussion of it we shall make a few preliminary observations concerning the duties of the operators of motor vehicles, including emergency vehicles. Section 304.010 (all statutory references are to RSMo 1959, V.A.M.S.) provides that “Every person operating a motor vehicle on the highways of this state shall drive the same in a careful and prudent manner, and shall exercise the highest degree of care, * * *." There are no exceptions to this requirement. Burlingame v. Landis, 362 Mo. 523, 242 S.W.2d 578; Kaley v. Huntley, 333 Mo. 771, 63 S.W.2d 21. In Section 304.022 RSMo 1959, V.A.M.S., an “emergency vehicle” is defined, and that definition includes any “privately owned vehicle operated as an ambulance when responding to emergency calls.” This would include the ambulance operated by Goetz and owned by Eickhoff. Although there is a contention that the ambulance was not on an emergency call, the evidence is to the contrary. The driver of an emergency vehicle, pursuant to par. 4(2) of Section 304.022, may, without violating the rules of the road, do four specifically enumerated things other drivers may not do. However, these specifically enumerated exemptions “shall apply only when the driver of any such vehicle while in motion sounds audible signal by bell, siren, or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted lamp displaying a red light visible under normal atmospheric conditions- from a distance of five hundred feet to the front of such vehi-. cle.” One of the exemptions above granted is that the driver may “Exceed the prima facie speed limit so long as he does not endanger life or property; * * *." In this case, Goetz was exceeding the speed limit of 30 miles an hour applicable on Grand Avenue. While the ambulance was equipped with a siren and with a lamp capable of displaying the required red light, there is a dispute whether at and immediately prior to the collision the red light was turned on and the siren was being sounded. We should also mention that Section 304.-022 requires that upon the immediate approach of an emergency vehicle which is giving an “audible signal by siren or while having at least one lighted lamp exhibiting red light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle,” the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as far as possible to the right of the traveled portion of the highway and thereupon stop and remain in such position until such emergency vehicle has passed, except when otherwise directed by a police or traffic officer. See Politte v. Miller, Mo.App., 301 S.W.2d 839.

Instruction No. 5, given at the request of plaintiff and which Goetz asserts is erroneous, with the deletion of phrases unnecessary to the discussion of the pending issues, is as follows:

“The Court instructs the jury that if you find and believe * * * that * * * defendant, Nadine Hopkins, was operating the Chevrolet automobile * * * northerly on Grand Avenue in the north bound traffic lane of said Avenue in front of the ambulance * * * which was being driven by the defendant, Arlie J. Goetz, northerly on said Grand Avenue * * * and if you further find that plaintiff, Emma Ficken, was riding as a passenger in said ambulance * * * and if you further find that the defendant, Nadine P. Hopkins turned on her left hand turn signal light at the time her automobile was between 20th and 19th Street on said Grand Avenue indicating her intention to make a left hand turn off of said Grand Avenue and that the defendant, Arlie J. Goetz, * * * saw said left turn signal light on the rear of the Hopkins automobile; that the defendant, Arlie J. Goetz, thereafter drove and operated said ambulance from the north bound traffic lane * * * to his left to pass the Hopkins automobile at a speed in excess of 30 miles per hour at a time when the Hopkins automobile was in the process of making a left hand turn off of said Grand Avenue onto 18th Street in Sedalia, Missouri, and that the defendant, Arlíe J. Goetz, failed to give an audible signal by horn or siren or by exhibiting a red light on the front of said ambulance indicating his intention to pass the Hopkins automobile * * *, and if you further find that in driving said ambulance in excess of 30 miles per hour when he was attempting to pass the Hopkins automobile, under the facts and circumstances shown in evidence was negligence, * * * and if you further find that failure on the part of defendant, Arlie J. Goetz, to give an audible sound of the horn or the siren or to exhibit the red lights on the front of said ambulance indicating his intention to pass the Hopkins automobile, at said time and place, was negligence, * * * and if you further find and believe * * * that as a direct and proximate result of the aforesaid negligence of the defendant, Arlie J. Goetz, said ambulance came into violent collision with the Hopkins automobile at the intersection of 18th and Grand Avenue, * * * and that plaintiff, Emma Ficken, sustained personal injuries as a direct and proximate result of the aforesaid collision, * * and further that the negligence of the defendant, Arlie J. Goetz, directly contributed to cause the collision and plaintiff’s injuries, then you are instructed that your verdict should be in favor of plaintiff, Emma Ficken, and against defendant, Arlie J. Goetz, on Count II of plaintiff’s petition and this is true even though you may find that the defendant, Nadine P. Hopkins, driver of the Chevrolet automobile, was also negligent, as defined in other instructions.”

Goetz asserts this instruction is erroneous because “it ignores the vital issue as to whether or not the ambulance was an emergency vehicle within the meaning of the provisions of Section 304.022.” As previously noted, there was evidence from which the jury could find that the ambulance was equipped with a siren and a red lamp so as to be eligible to be classed as an emergency vehicle within the definition of the above statute, but the evidence was conflicting as to whether at the time of the events which resulted in the collision, the siren was sounding and the red lamp was turned on. By Instruction No. 15 the court defined an emergency vehicle, and by Instruction No. 14 it was submitted that if the jury found that the ambulance was being operated as an emergency vehicle, and that while it followed the Hopkins Chevrolet it displayed a red light, visible under normal atmospheric conditions for a distance of 500 feet to the front, and was sounding an audible signal by siren, and that Hopkins saw the red light and heard the siren, or should have seen the light and heard the siren, in time to drive the Chevrolet to the right of the traveled portion of Grand Avenue and stop until the ambulance had passed, but that Hopkins failed to do so and was negligent, and such negligence “solely caused the collision” then the verdict should be in favor of Goetz. This presented Goetz’s theory of the case. Plaintiff’s Instruction No. 5, purported to submit her theory of the case, that is, that the siren on the ambulance was not being sounded, and the red light was not turned on, and for that reason the operator was not entitled to do any of those things permitted by par. 4(2) of Section 304.022 to be done by the operator of an emergency vehicle. The instruction required the jury to find that Goetz “failed to give an audible signal by horn or siren or by exhibiting a red light on the front of said ambulance indicating his intention to pass the Hopkins automobile.” Strictly speaking, the instruction should have required a finding that the ambulance was not giving an “audible signal by bell, siren, or exhaust whistle,” and that it was not “displaying a red light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle.” However, there was no evidence pertaining to any of the sounding devices on the ambulance mentioned above except a siren, and Goetz does not make a specific complaint as to this ineptly worded submission. If the jury found that Goetz failed to give an audible signal by siren and failed to exhibit a red light as submitted, then the ambulance was not entitled to exceed the speed limit of 30 miles. Limiting our ruling to the specific contention made by Goetz, we cannot agree that the instruction ignored the issue of whether the ambulance was operating as an emergency vehicle.

Goetz relies on Bramson v. Henley, Mo., 353 S.W.2d 609; Wiseman v. Jackson, Mo.App., 309 S.W.2d 356; and Kitchen v. Pratt, Mo.App., 324 S.W.2d 778. None of these cases pertain to an emergency vehicle, and we experience difficulty in determining what portion of the first two cases he believes to be applicable. Apparently reference is intended to the statement in the Kitchen case that “[ijnstructions of a plaintiff may not ignore a material issue shown by his (or her) own evidence.” That statement is not applicable here. Plaintiff’s evidence did not establish or tend to show that the ambulance was operating as an “emergency vehicle.” On the contrary, it tended to establish that it was not, and when supported by the evidence, as it was, plaintiff was entitled to have the issue of the liability of Goetz submitted on that theory.

Goetz’s next challenge to the instruction is that it told the jury that he could be found negligent “if he operated the ambulance in excess of 30 miles per hour while attempting to pass the Hopkins vehicle ‘under the facts and circumstances shown in the evidence’ when the evidence shows disputed essential facts and circumstances” as to the relative speeds of the two vehicles, their proximity to each other and the intersection, the point of impact, and the status of the ambulance as a private or emergency vehicle.

In his argument under this point, Goetz asserts that “the criticism here leveled at Instruction No. 5 is in connection with the use of the phrase ‘under the facts and circumstances shown in evidence.’ ” Appellant then argues that a verdict directing instruction must hypothesize sufficient essential facts to be found by the jury from which it may find certain acts or omissions to be negligence, and without so hypothesizing the facts the use of the phrase “under the facts and circumstances then and there existing” results in error. Cited are Myers v. Buchanan, Mo., 333 S.W.2d 18; Berry v. Harmon, Mo., 329 S.W.2d 784; and Kimmich v. Berry, Mo., 319 S.W.2d 546.

The cases relied on do not condemn the use in all instances of the phrase “under the facts and circumstances then and there existing.” What they do hold is that an instruction must “ ‘make clear to the jury the essential fact issues which they are called upon to decide, and that where the evidence relating to such issues is conflicting and divergent, some of it supporting and other portions opposing the particular verdict, the instruction should in that event hypothesize, either by express recital or by reference to other instructions, the facts essential in law to support the verdict, * * *.'” Kimmich v. Berry, supra at p. 548. The use of the phrase here objected to, or a similar phrase, is condemned when an abstract submission is thereby made of a conclusion and the facts essential to a finding of liability, or nonlia-bility in the appropriate situation, are not hypothesized. Instruction No. 5 hypothesized a factual situation, which if found by the jury authorized a finding of negligence on the part of Goetz. The phrase “under the facts and circumstances in evidence” referred to those facts so hypothesized.

We have difficulty in determining what essential facts to plaintiff’s right of recovery Goetz contends were not hypothesized. As to speed, he asserts the evidence was conflicting because it shows that Hopkins was going 25 miles an hour, and that “she was going the same speed as Goetz when he was following her vehicle.” There also was evidence that when the ambulance attempted to pass the Hopkins car it was exceeding 30 miles an hour. Instruction No. 5 hypothesized that Goetz moved the ambulance to the left “to pass the Hopkins automobile at a speed in excess of 30 miles per hour at a time when the Hopkins automobile was in the process of making a left-hand turn * * *." This was sufficient. Goetz also asserts that there was some difference in the testimony as to the place where Goetz undertook to pass. The precise point was not essential to plaintiff’s right of recovery, but the instruction hypothesized that it was where Hopkins was making a left-hand turn off of Grand Avenue onto 18th Street. This was supported by evidence and was sufficient. We need not set out the remainder of this argument. Goetz has not pointed out any instance where essential facts to plaintiff’s right of recovery were not hypothesized. This challenge to Instruction No. 5 is without merit.

The next contention is that Instruction No. 5 is erroneous because “it fails to require an essential finding that the speed of the ambulance was a high, dangerous and excessive rate of speed under the circumstances.” The only case cited is Politte v. Miller, Mo.App., 301 S.W.2d 839. There the operator of an automobile counterclaimed for personal injuries resulting from a collision with an emergency vehicle. The theory of the submission was that while the emergency vehicle could “[pjroceed past a red or stop signal or stop sign,” it could do so “only after slowing down as may be necessary for safe operation,” and the driver did not do so and thereby was negligent. See par. 4(2) (b) of Section 304.022. In the Politte case it was held that the instruction submitting such theory of negligence “omitted the requirement that the jury find that the ambulance was operating at an unsafe speed.” We know of no reason why, under the circumstances of this case, a finding that the speed of the ambulance was “high, dangerous and excessive” was essential to plaintiff’s right of recovery. We find no merit to this contention.

Goetz and Eickhoff each challenges Instruction No. 4 which is the usual cautionary instruction defining the terms “negligence” and “negligent” as the failure tó exercise the highest degree of care, and then defining that term. They each assert that Instruction No. 4 ignored the theory that “the ambulance was an emergency vehicle on emergency call,” and it “imposed a higher degree of care than the law required under [his] theory.”

We should first mention that plaintiff is not necessarily bound by the theory of the case presented by defendants. Plaintiff’s submission was on the theory that Goetz was the operator of a privately owned ambulance on an emergency call which was not entitled to the exemptions granted by par. 4(2) of Section 304.022 because there was no compliance with par. 4 (3) of said section. As previously noted, Section 304.010 requires that “Every person operating a motor vehicle on the highways of this state * * * shall exercise the highest degree of care, * * and neither it nor Section 304.022, pertaining to emergency vehicles makes any exception. In other words, the driver of an emergency vehicle authorized by par. 4(2) of Section 304.022 to do the things therein provided without constituting a violation of what are known as the rules of the road, when doing them, must exercise the highest degree of care, which is such care as a very careful and prudent person would ordinarily use under the same or similar circumstances. For this reason the statement in Allman v. Yoder, Mo., 325 S.W.2d 472, relied on by Goetz and Eickhoff which indicates that ordinary care only is required in some situations does not correctly state the degree of care required by the statute. There was no error in giving Instruction No. 4.

We turn now to the appeal of Goetz and Eickhoff from that part of the judgment denying their cross-claims against Hopkins. Other than the challenge to Instruction No. 4, discussed above, the only point presented is a challenge to Instruction No. 18, on contributory negligence given at the request of Hopkins.

The first contention is that “it ignores the vital issue as to whether or not the ambulance was an emergency vehicle within the meaning of the provisions of Section 304.022.” This point is deficient because it does not set forth, as contemplated by Civil Rule 83.05, V.A.M.R., why it is contended the court erred in giving the instruction. However, by turning to the argument portion of the brief under this point, we find that the reason Goetz contends the instruction was erroneous is that “Instruction 18 requires Goetz to exercise the highest degree of care but this requirement was proper only if the ambulance was not an emergency vehicle because the operator of an emergency vehicle is required to exercise only ordinary care.” Cited is Allman v. Yoder, supra, which we have already discussed. For the reasons previously set forth, this contention is of no merit.

The next contention is that Instruction No. 18 “fails to hypothesize sufficient essential facts as to the location of the Hopkins vehicle and ambulance on Grand Avenue, their proximity to one another, their speeds and proximity to the intersection when Goetz undertook to pass the Hopkins vehicle.” He relies on such cases as Kimmich v. Berry, Mo., supra; Randall v. Steelman, Mo.App., 294 S.W.2d 588; and Politte v. Miller, supra. Instruction No. 18 hypothesized that Goetz “saw the northbound automobile being operated by Mrs. Hopkins as it approached 18th Street, signaling for a left turn with the mechanical turn signal,” and that by so seeing said signal he knew or should have known of her intention to turn to the left, and that “thereafter defendant Goetz attempted to pass the automobile * * * at the intersection of 18th Street and Grand Avenue and the collision mentioned in evidence occurred as Mrs. Hopkins was in the process of making a left turn onto 18th Street, * * *." We fail to see why this did not constitute a sufficient hypothesization of those facts essential to a finding of contributory negligence. In some circumstances, a detailed hypothesization of facts as to location, proximity and speed may be required “to inform the jury of the essential facts that they are to decide,” Randall v. Steelman, supra, but the facts hypothesized by this instruction, because of the circumstances, were adequate and sufficient, if found by the jury to be as submitted, to support or authorize a finding of negligence on the part of Goetz, and that is all that is required or contemplated by the rules pertaining to hypothesization of facts in a verdict directing instruction.

The next contention is that the instruction did not require a finding that “Goetz knew, or in the exercise of the proper degree of care, should have known that in undertaking to pass the Hopkins vehicle there was danger of collision.” He cites Highfill v. Brown, Mo., 320 S.W.2d 493. There an instruction was held to be erroneous because it “did not submit to the jury any facts on which to base a finding that plaintiff should have known [that the driver of the car ahead of him] intended to turn left into the driveway.” Instruction No. 18 is not subject to this objection. Also cited is Greenwood v. Bridgeways, Inc., Mo.App., 243 S.W.2d 111, an intersection collision case where the negligence charged was failure to keep a vigilant lookout, and that defendant drove his vehicle into the path of the other vehicle without slackening speed, deviating the course or giving' a warning. It was held that the duty to slacken speed, change the course or sound a warning arose when the defendant saw or should have seen that the car in which plaintiff was riding was likely to proceed into the path of defendant’s vehicle, and that the jury should have been so instructed. In this case, Instruction No. 18 required the jury to find that Goetz knew or should have known that Mrs. Hopkins was intending to turn to the left, which would have been into the path of Goetz in attempting to pass. The cited cases do not support the contention that Instruction No. 18 was erroneous for the asserted reason.

The final contention is that Instruction No. 18 permitted the jury to find against Goetz “on any theory it wished because it did not limit the jury’s findings to the passing of the Hopkins vehicle as negligence but submits general negligence as well.” The argument in the brief is as follows: “The instruction contains this language, ‘and if you further find that defendant Goetz failed to exercise the highest degree of care in attempting to pass the Hopkins automobile under the aforesaid circumstances and [italics added in argument portion of brief] was'guilty of negligence in the operation of the Eickhoff ambulance which directly contributed to cause the collision mentioned in evidence’ * * * then * * * your verdict must be in favor of Mrs. Hopkins * * *.’ No language connects the phrase “and was guilty of negligence in the operation of the Eickhoff ambulance * * * ’ with the phrase ‘that defendant Goetz failed to exercise the highest degree of care * * *.’ This results in an attempted submission of specific negligence along with a submission of general negligence and results in prejudicial error.” In other words, Goetz complains that the word “therefore” or “thereby” or some word or phrase of similar meaning should have been inserted immediately following the italicized word “and,” and that failure to do so resulted in the submission of general negligence.

We do not question the rule that it is improper to submit both specific and general negligence in an instruction. See Annin v. Jackson, 340 Mo. 331, 100 S.W.2d 872; Hoeller v. St. Louis Public Service Co., Mo.App., 199 S.W.2d 7; Watson v. Long, Mo.App., 221 S.W.2d 967, 969. In this case Goetz relies primarily on the last cited case. However, the language of the instruction in that case is not the same as in this case, and when Instruction No. 18 is read as a whole we think it would be reasonably apparent to a jury that there was only one submission of negligene, and that they were not entitled to find against Goetz if they believed only that he “was guilty of negligence in the operation of the Eickhoff ambulance.” Instead, a reasonable construction of the language is that if they found the facts as hypothesized they were then authorized by reason of those findings to conclude that Goetz was guilty of negligence in the operation of the ambulance. “It has been well said ‘that, in considering the language of any instruction, we should not be hypercritical but rather should be concerned primarily with its meaning to a jury of ordinarily intelligent laymen, crediting them with common sense and average understanding of the English language * * *.'” Samuels v. Klimowicz, Mo., 380 S.W.2d 418. We find no merit to the contention that the instruction submitted general negligence.

Goetz also asserts that the verdict in the amount of $10,000 in favor of plaintiff against him on Count II of the petition is so excessive as to be the result of bias and prejudice, and also that it is excessive because there was no substantial evidence that many of the complaints and conditions of the plaintiff resulted from the accident.

Plaintiff did not testify in person, but her deposition was offered as a part of her case and read to the jury without objection. At the time of the collision plaintiff was 62 years of age and weighed about 192 pounds. She was standing in the back of* the ambulance, and the collision caused her to fall on top of Mr. Fox. She was not rendered unconscious and was able to get up by herself. According to plaintiff, she was “all bruised and shocked,” she sustained “a big bump” on her right arm which, at the time her deposition was taken about ten months later, she could “kind of feel” and when pressed it would hurt. She also had a big blue spot on her back at about the belt line, and she had a lot of blue spots on her leg where the stretcher hit her when it fell. At the time her deposition was taken the spots had all disappeared. She sustained no cuts or skinned places, no other “swollen places or knots,” no broken bones and no dislocations. Another ambulance was brought to the scene of the collision and she rode in it with her husband to the hospital. At the hospital her “blood pressure was 240 and [her] heart beat was ISO.” “Right after-wards” she went to a doctor in Versailles, and went every two weeks for a “long time” and at the time of her deposition she was going once a month because of her “blood pressure and [her] nerves.” When she first went to this doctor she showed the bruises but the doctor said “there was nothing to be alarmed about” and they cleared up. Because of the bruises she sustained no limitation of motion or disability. Ten months after the accident she was still being treated for her nerves and high blood pressure, but her blood pressure was improved and was “pretty good again now.” At some indefinite time after the the accident plaintiff spent two days in a hospital, but nothing further pertaining to this confinement is shown.

Dr. Claude Thurber, a qualified medical doctor, testified that because of “this specific burden on her mind [of testifying] and under the circumstances of her case” he had advised plaintiff that it “would be wise for her not to testify” at the trial of this case. He stated that he had treated plaintiff since November 9, 1961, which was about two years after the accident. Plaintiff’s “main complaint” was “loss of weight, inability to eat, inability to sleep, increased nervousness and digestive upsets, including nausea and vomiting, constipation and related problems.” The doctor testified that she “continues to have that persistent problem [nervousness] and complaint” and that “she appears apprehensive, tense and nervous.” She told the doctor that her blood pressure had been up to 240, but according to the doctor it was then 150 to 160. Her weight was off at one time about 30 pounds, but she would gain and lose weight. The doctor was asked a hypothetical question in which he was asked to assume the circumstances of the collision and the injuries substantially as related herein. He was then asked “whether the condition you find her having and from which this lady is suffering as you have told the jury * * * is the result of injuries sustained in that collision * * and the answer was, “Yes sir, it certainly could have contributed to her condition.”

Plaintiffs two married daughters testified that before the accident their mother “did every thing to be done around the home, washing and ironing and she made garden and took care of that,” and that she sewed, canned fruits and vegetables and was an “active church goer.” However, after the accident, she was not able to do her work anymore because “she has lost weight and she is nervous if she is around people.” Prior to the accident she had received medical treatment for more than one year for high blood pressure, and as the result of the accident plaintiff was confined to her bed for about three days. At the time of trial “every little thing” would upset her and she would cry and not be able to eat.

We find no evidence of special damages, and the parties make no reference to such damages in their briefs, either in their statement of facts or in argument.

Dr. Thurber’s testimony was only as to what complaints plaintiff made to him, not that he found such conditions to exist, except that plaintiff had the “persistent problem” of nervousness and that she appeared to be “apprehensive, tense and nervous.” He did not testify that this would be a continuing condition, and although he was expressly asked “whether the condition you find her having and from which [she] is suffering” was the result of injuries sustained in the collision, he gave the equivocal answer, “Yes sir, it certainly could have contributed to her condition.” There is no testimony by Dr. Thurber that in his expert opinion the condition of plaintiff did result from the collision. It has long been the rule that “expert testimony that a condition might or could have resulted from an accident or injury, when standing alone without other facts, is not substantial evidence from which a jury could find cause and effect.” Ketcham v. Thomas, Mo., 283 S.W.2d 642, 649; Baker v. Kansas City Terminal Ry. Co., Mo., 250 S.W.2d 999; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644. However, where there are other facts which tend to show an accident caused a certain condition, the assurance that it is scientifically possible is of some aid to the jury in determining what are reasonable inferences to be drawn from such facts. Kimmie v. Terminal R. R. Ass’n of St. Louis, 334 Mo. 596, 66 S.W.2d 561. This, at most, is all that the answer of Dr. Thurber amounted to. In this case the absence of the nervous condition before the accident and its occurrence immediately thereafter constitutes other evidence from which a jury could reasonably infer that the nervous condition of plaintiff, with the other related conditions, resulted in whole or part from the accident. But, there is no evidence whatever of any permanency, there is no evidence of special damages, and there is no evidence of physical injury except those relatively minor in nature and of short duration.

We disagree that the amount of the verdict demonstrates bias and prejudice which would require the reversal of the judgment pertaining to Count II of plaintiff’s petition. We are of the opinion, however, that the verdict is excessive. “There is no precise method for determining the maximum award which the evidence in this case will support. Each case must be considered upon its own peculiar facts. Due regard should be given to the purchasing power of the dollar [and] to the rule of reasonable uniformity of awards for similar injuries * * *." Burr v. Kansas City Public Service Co., 365 Mo. 115, 276 S.W.2d 120, 127. A care, ful consideration of the evidence leads us to the concluusion that the verdict is excessive by an amount equal to the maximum permissible amount. We consider a verdict in the amount of $5,000 to be liberal, but if awarded by a jury it would be permitted to stand.

All the judgment except that part pertaining to Count II of plaintiff’s petition is affirmed. If, within fifteen days after the filing of this opinion, plaintiff will enter here a remittitur of $5,000, that part of the judgment on Count II of plaintiff’s petition will stand affirmed in the sum of $5,000 as of the date of the original judgment. Otherwise, that part of the judgment pertaining to Count II of plaintiff’s petition is reversed and the cause remanded for a new trial.

BARRETT and PRITCHARD, CG, concur.

PER CURIAM.

The foregoing opinion by STOCKARD, G, is adopted as the opinion of the Court.

All of the Judges concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    Rudolph OBERMEYER, Respondent, v. Roy E. HENTSCHEL and Clara Hentschel, Appellants.
    No. 50808.
    Supreme Court of Missouri, Division No. 1.
    April 12, 1965.

      Earl R. Blackwell, Hillsboro, for respondent.
    Bild & Cooper, Frank Bild, Harris Cooper, St. Louis, for appellants.
   HOUSER, Commissioner.

Rudolph Obermeyer, grantor in a warranty deed to certain lands in Jefferson County, brought this action to quiet title against the named grantees, Roy and Clara Hentschel, husband and wife. From an adverse judgment defendants appeal.

The petition asserted plaintiff’s ownership of the land in fee simple, defendants’ claim of some interest therein the nature and character of which is unknown to plaintiff and cannot be described except that defendants’ claim is adverse and prejudicial to plaintiff; prayed for a determination of the interests of the parties and a declaration that plaintiff is the fee simple owner and asked that defendants be restrained and enjoined from asserting, claiming or setting up any right, title or interest therein. It was a conventional petition in a quiet title action, except for paragraph 3 in which plaintiff alleged that defendants caused their names to be placed on a deed to the premises “through undue influence and misrepresentation, * * * without any consideration on their part whatsoever.” Before the case went to trial plaintiff deleted paragraph 3. Defendants’ answer denied plaintiff’s ownership in fee simple, admitted defendants’ claim to some right, title and interest, which they alleged was a joint tenancy with right of survivorship by virtue of a certain described and recorded deed, and prayed for dismissal of the petition. Alternatively defendants asked the court to define and adjudge the title in defendants as joint tenants.

For 18 years plaintiff and his wife made their home on the real estate in question, a 90-acre tract 4 miles south of DeSoto. Plaintiff’s wife died in November, 1959. Defendant Roy Hentschel is plaintiff’s adopted son. He is the husband of defendant Clara Hentschel. Over objection plaintiff testified that after his wife’s death Roy was “after” plaintiff “to sign the place over to him”; that Roy asked plaintiff to do so several times. Plaintiff testified that Roy said that if plaintiff signed the deed it would keep Roy “out of a lot of trouble if anything happened” to plaintiff; that that was the only reason plaintiff signed the deed. He stated that his memory “wasn’t nothing too good at the time.” Plaintiff admitted and conceded that on December 14, 1959, about a month after his wife’s death, he signed the deed in evidence to Roy and Clara. The deed is a warranty deed in regular form conveying the real estate from plaintiff to defendants, husband and wife, as joint tenants and to the survivor and not as tenants in common. The deed was le-corded the same day it was executed. Plaintiff testified that after his wife’s death he was nervous. Asked if he remembered the day the deed was signed he answered that he could not recall “right up to the day.” He believed that Mr. Schubel (the notary public) was present; did not remember whether Mr. Schubel asked him whether he was signing the deed as his free act and deed; testified that at the time he signed the deed he had a will leaving everything to defendants and their children. Over objection plaintiff was permitted to testify that he did not know what he was doing when he executed the deed; that Roy “forced” him to sign the deed (how or in what manner was not developed) ; that Roy did not pay plaintiff any money at the time of the conveyance; that after plaintiff had “put his [Roy’s] name on the deed Roy told plaintiff that Roy was plaintiff’s guardian “over” him and that Roy “could stop everything” and draw all of plaintiff’s money out of the bank “and everything else.” After the conveyance plaintiff continued to pay the taxes on the place. Roy paid nothing on the taxes; nothing for the upkeep of the property, and “never put a dime in it.” Plaintiff further testified that plaintiff had given Roy $400 or $500 after the death of plaintiff’s wife, and that for some time plaintiff had been receiving medical treatment for his heart and nerves, maybe once a week and sometimes twice a day.

At the close of plaintiff’s case defendants’ motion for judgment was overruled. Defendants offered no testimony and contented themselves with placing in evidence the recorded deed of December 14, 1959.

On this appeal defendants assert that plaintiff, as the former owner in fee simple, cannot invoke the aid of equity to remove a cloud on the title which plaintiff has created; that plaintiff proved no “adverse” claim, but proved that title passed to defendants by, through and from plaintiff by his own deed of December 14, 1959, signed, acknowledged and delivered to defendants; that the recording of plaintiff’s deed caused plaintiff no injury and gave him no cause of action, and therefore the court erred in not sustaining defendants’ motion for judgment; that what plaintiff really wants is cancellation of the deed, but that plaintiff neither pleaded facts authorizing cancellation nor prayed therefor; that the evidence is not that clear, cogent, convincing evidence required before a court of equity will exercise the extraordinary power of cancellation, and that in any event the court did not decree cancellation but merely decreed that plaintiff is vested with fee simple title and that defendants have no title or interest in the real estate.

Plaintiff argues that a presumption of undue influence arose when lack of consideration and a fiduciary relationship were shown; that plaintiff made a prima facie case for quieting title on the basis of undue influence, and that defendants failed to go forward with rebutting evidence, which raises an inference that defendants’ testimony would have corroborated plaintiff.

The judgment for plaintiff cannot stand. The only basis upon which the court could have adjudged fee simple title in plaintiff and no title or interest in defendants in this case would have been a finding that the deed, valid on its face, was in fact procured by undue influence, misrepresentation or duress and is a cloud which equity will remove from the title of the true owner. The proper relief on such a finding would have been cancellation of the deed. The difficulty is that on this record plaintiff did not place the trial court in a procedural position to make a finding or judgment affirmatively adjudicating the title in plaintiff, for plaintiff did not plead facts which would support the introduction of evidence of undue influence, misrepresentation or duress and did not pray for cancellation on these grounds.

Civil Rule 93.01, V.A.M.R., authorizes the court, “if same be asked for in the pleadings of either party” [emphasis added] to hear and determine any and all rights, claims, interest, etc. whatsoever of the parties concerning real property and to award full and complete relief, whether legal or equitable. The institution, prosecution, trial and determination of suits brought under Rule 93.01 “shall conform in all respects to the Rules of Procedure covering ordinary civil actions * * *." Civil Rule 93.04, V.A.M.R. The relief afforded in actions to quiet title “is to be measured by the pleadings in each particular case.” Wm. H. Johnson Timber & Realty Co. v. Belt, 329 Mo. 515, 46 S.W.2d 153, 155; Stewart v. Omaha Loan & Trust Co., 283 Mo. 364, 222 S.W. 808, 810, cited and quoted with approval recently in Lucas v. Smith, Mo., 383 S.W.2d 513, 516, 517, a decision instructive, indeed controlling, on every point we are deciding on this appeal. In that case, as in this case, “all parties asked that the court determine title, but under this request the court had the authority to determine title as between the parties within the issues raised by the pleadings.” 383 S.W.2d, 1. c. 517 [5], We have adverted to the failure of plaintiff to plead facts warranting cancellation. The evidence of undue influence, misrepresentation and duress offered by plaintiff was admitted over the objections of defendants that it was beyond the scope of the pleadings. There was no trial by express or implied consent of issues not raised by the pleadings, under Civil Rule 55.54, V.A.M.R. The evidence of undue influence, misrepresentation and duress, was inadmissible under the pleadings, and when it is excised from the record nothing is left but a warranty deed valid on its face, conveying the property to defendants — a deed plaintiff admits he executed.

Outright reversal would seem to follow under our power to finally dispose of the case on appeal, Civil Rule 83.13, “unless justice requires otherwise.” On this record we cannot know with conviction whether justice requires otherwise. Because of plaintiff’s failure to plead undue influence, etc. and to pray for cancellation we do not reach the question whether the evidence rises to the high water mark required before a court of equity will exercise the extraordinary power of cancellation of a deed, Allan v. Allan, Mo., 364 S.W.2d 578; Lorraine v. Dixon, Mo., 356 S.W.2d 96, and we express no opinion with respect to the evidence, except to note that it was very brief (16 pages); that plaintiff was the only witr ness; that his testimony was terse and that much of it was conclusion rather than fact. We nevertheless cannot blind ourselves to the undisputed intimations of undue influence, etc. in this record, which defendants made no effort to explain. In the interests of justice we will not finally dispose of the case by rendering judgment for defendants on this appeal, but will reverse the judgment and remand the case to permit the parties, if they be so advised, to amend their pleadings to present the theory disclosed by the evidence, Lucas v. Smith, supra, 383 S.W.2d, 1. c. 518[8], in which event these issues may be thoroughly explored, properly developed and finally adjudicated.

Reversed and remanded for further proceedings consistent with this opinion.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: EAGER, Judge.

text:
    Marie McQUATE, Respondent, v. Naomi WHITE, Individually, and as Co-Executrix of the Estate of Chester A. McQuate, Naomi White, Guardian of Sonya White, Yana White, Lisa White and Eric White, Elizabeth Christopher, Individually and Co-Executrix of the Estate of Chester A. McQuate, Walter B. Christopher, Legal Guardian of Lorna Christopher and Glen Christopher, Appellants.
    No. 50700.
    Supreme Court of Missouri, Division No. 2.
    April 12, 1965.

      Sevier & Turnage, Robert F. Sevier, William E. Turnage, Liberty, for plaintiff-respondent.
    Robert H. Frost, G. Raymond Speckman, Plattsburg, Derrick & Holderle and Tyree C. Derrick, St. Louis, for appellants.
   EAGER, Judge.

Plaintiff, widow of Chester A. McQuate, filed suit seeking a declaration that a marriage agreement entered into on November 17, 1954, be declared void, that the record thereof be expunged, and that she be declared to have the same interest in two described tracts of real estate as she would otherwise have had. The husband died on September 11, 1961, and his will was duly probated. Plaintiff, on May 23, 1962, filed her election to renounce the will and take her “legal share” of his estate. The trial court entered a judgment finding generally that the contract should be set aside, and it ordered, adjudged and declared that it be “set aside and for naught held.” Motions for judgment and a new trial were filed and overruled. After an untimely notice of appeal was filed in the Circuit Court, this Court granted a special order allowing a notice to be filed and it was filed. The defendants are the executrices, the two daughters of the deceased, and the guardians of his grandchildren who were the devisees of the two principal tracts of the controverted real estate.

The “marriage contract” recited that each party was possessed of property, had made full and frank disclosure to the other, and had been advised of his or her legal rights; the expressed considerations, pro and con, were one dollar and other “good and sufficient and satisfactory consideration.” By the terms of the contract the husband agreed that the wife (plaintiff) should own, hold and enjoy all of her present and future property as her separate and sole estate with the full right to convey or mortgage it or to dispose of it by will, and that he thereby released to her and her heirs, representatives, assigns, legatees and devisees all rights and claims thereto which he might have by reason of the marriage; for the identical expressed considerations, the wife made the same agreements and the same release with reference (only) to two specifically described tracts of real estate owned by the husband; from the descriptions one would appear to have consisted of 240 acres and the other of 80 acres, located in different sections. Each party agreed that if it should be deemed necessary he or she would execute any documents required to carry out the terms of the contract.

Plaintiff’s second amended petition sought a declaration of invalidity upon the following grounds: that she had been induced to sign the agreement by false and fraudulent representations of the decedent as to the value of the real estate and also that it was not necessary for her to consult with counsel; that she was then possessed only of personal property of the value of approximately $6,000, whereas the real estate in question was of the value of $65,000; that she already had, in law, the full right to deal with her own property and that she acquired nothing by virtue of the agreement, in fact, not even the one dollar mentioned or any other recited “satisfactory considerations”; that the agreement was executory and unilateral, and wholly void. The defendant bank was made a party because it admittedly held one or more deeds of trust on the real estate. Plaintiff also alleged: that subsequent to date of the marriage and without prior discussion she had been taken by decedent to the office of an attorney where the marriage agreement was signed; that no benefit had accrued to her under the agreement; that by the will of decedent she was given less than her statutory share of the estate and that she had filed her election to renounce the will and claim a one-third interest in all the real and personal property.

The answers admitted the formal allegations of the petition and denied all substantive allegations. It will not be necessary to further detail the pleadings, except to say that the defendant bank alleged that it held liens evidenced by two recorded deeds of trust with an aggregate balance of $51,467.-12 as of September 1, 1963. No one disputes the bank’s claim.

The evidence was very incomplete, due in large part to the fact that all proposed testimony of the plaintiff was excluded under the Dead Man’s Statute, § 491.010, RSMo 1959, V.A.M.S.; thus, she was not permitted to give any testimony concerning the extent of her property at the time of the contract. By the will of the decedent, filed for probate on September 15, 1961, decedent devised to plaintiff a 77-acre tract (being one of those described in the contract) and all personal property, the latter being subject to all debts, claims, expenses and “real estate mortgages.” One tract of 240 acres, described as the “Home Place” and covered by the marriage contract, was devised to the White grandchildren; another tract of 240 acres, apparently acquired later, was devised to the Christopher grandchildren. We are not interested in the other provisions, except perhaps that the testator ordered that his personal property be sold at auction. Two applications for letters testamentary were introduced, the second supplying the names of some of the legatees; these estimated the value of decedent’s real property at $87,500, and of his personal property at $40,000, and recited that decedent died on September 11, 1961, at the age of 71. Letters were issued on September 15, 1961. The inventory was objected to as constituting no evidence of values at the time of the contract, but it was received and we think properly so. It had some relevancy in the attempt to arrive at an estimate of the value of deceased’s property at that time. Egger v. Egger, 225 Mo. 116, 123 S.W. 928, loc. cit. 935. The inventory listed three tracts of real estate, appraised the 77-acre tract at $8,855, and the two 240-acre tracts at $48,-000 and $65,000, respectively, all subject to a balance due under deed of trust of $51,-311.36, leaving a net value for the real estate of $69,543.64. The listed personal property was appraised at $96,176.80, much of it consisting of livestock and farm machinery. There was no evidence concerning other debts, claims or expenses.

The marriage agreement had been recorded and the record was offered and received in evidence. There was some oral evidence concerning the real estate values; it is a little difficult to evaluate this, because of the somewhat indefinite references to the specific tracts. It reasonably appears, however, that the tract of 77 acres devised to plaintiff and mentioned in the contract, was thus valued at $15,400, and the “Home Place” 240 acres at from $48,000 to $50,400, all as of 1954. As to the other 240 acres, presumably acquired later, we have only the inventory appraisement of $48,000. The defendants stood upon an oral motion to dismiss and offered no evidence.

The first point of plaintiff’s brief consists of a motion to dismiss the appeal under Rule 83.05, V.A.M.R. for insufficiency of the jurisdictional statement and of the statement of facts, and also because the Points asserted are merely abstract statements of law. We have examined the brief in the light of these contentions and do not find the deficiencies to be of sufficient moment to justify a dismissal. The Appellants’ Points and Authorities are not models, but they do affirm in varying language the contentions that the marriage contract was fair on its face and was supported by consideration, and that there was no evidence to support the judgment which, consequently, was rendered erroneously. There was and is only one ruling from which the defendants thus appealed, namely, the judgment invalidating the contract. No party requested findings of fact or conclusions of law; the case was, by its very nature, in equity. There being but a “single obvious question” in the case, the motion is overruled. Milanko v. Austin, 362 Mo. 357, 241 S.W.2d 881, 882, cert. denied 342 U.S. 906, 72 S.Ct. 298, 96 L.Ed. 678; Bringer v. Barr, Mo.App., 318 S.W.2d 524, 527. And see generally Ellis v. Farmer, Mo., 287 S.W.2d 840, 843.

Plaintiff’s counsel next assert that there is no jurisdiction in this Court because the title to real estate is not directly involved. This question is frequently troublesome. It was recently well stated in the case of In Re Schell’s Estate, Mo.App., 370 S.W.2d 816, loc. cit. 818: “We approach the question of jurisdiction with the view that in order to vest jurisdiction in the supreme court the judgment sought or the judgment rendered must affect or operate upon the title in the sense that some interest or moiety therein is denied to one and placed in another. The title must be directly in controversy. It is not sufficient that, in determining the issue involved, the court may incidentally or collaterally find it necessary to decide the question of title in order to arrive at a correct conclusion as to the question which is directly at issue.” In the present case plaintiff seeks a declaration that she is entitled to an undivided interest in all of the decedent’s real estate. The Court made no such declaration, but the issue was within the pleadings. It was and is obvious that if plaintiff should be adjudged to be the owner of an undivided one-third of any of the real estate, the dev-isees of that part would receive one-third less. On this point counsel cite In Re Ellis’ Estate, Mo., 127 S.W.2d 441, and First National Bank of Kansas City v. Schaake, 355 Mo. 1196, 200 S.W.2d 326. Both of those cases involved actions by the guardians of insane widows seeking the courts’ advice as to whether they should renounce the wills or take under them. The court in Ellis held that the only question actually involved was the advisability of making such an election, that the will was not being questioned, and that the case was unlike a will contest; that consequently there was no contest concerning the title. In Schaake, the court merely followed the Ellis case upon substantially similar facts. While we have found no case precisely on the present facts, and are cited to none, we conclude that the principle of the will contest cases is applicable. Here the contract and the will described specific real estate and two of the tracts were included in both; the plaintiff had renounced the will; she seeks to set aside the marriage contract and to be declared the owner of a statutory share in all property, real and personal. Under the terms of the marriage contract she is barred from doing so; essentially, she is asking that this bar be removed (more or less the reverse of declaring a will invalid) and that her right of election be freed to take under the will or to renounce it. In Ray v. Nethery, Mo., 255 S.W.2d 817, the plaintiff filed suit seeking a declaration that he qualified as the beneficiary of the residuary clause of a decedent’s will, which bequeathed the property to the person or persons who took care of her in the future. The defendants were decedent’s heirs and the administratrix with the will annexed. The court there said, in part, loc. cit. 819: “It seems quite clear, therefore, that this suit by which plaintiff sought to have the will declared operative as to him and to invest title to all of the real estate in him and by which he recovered a judgment investing him with an undivided two-thirds interest therein, thereby divesting to that extent the interest to which defendants as Mrs. Lee’s heirs would have succeeded but for the will becoming operative, directly involves title to real estate within the meaning of Section 3, Article V, of the Constitution of Missouri, V.A.M.S., which defines our jurisdiction. Nettleton Bank v. McGauhey’s Estate, 318 Mo. 948, 2 S.W.2d 771; Stale ex rel. Pemberton v. Shain, 344 Mo. 15, 124 S.W.2d 1087. See also Love v. White, Mo.App., 150 S.W.2d 494; Id., 348 Mo. 640, 154 S.W.2d 759.

“Moreover, the petition herein prayed that plaintiff ‘take all of the property, real, personal or mixed, of the said Nettie Lee, deceased, as in her last will and testament provided’; and the judgment rendered declared that plaintiff be ‘vested with an undivided two-thirds interest in and to the real estate of testatrix’. Our decisions are clear that where the judgment sought would take or the judgment rendered does take title to real estate from one party and invest it in another jurisdiction of the appeal lies in this court. * * * That is precisely what the judgment sought and the judgment rendered in this case did.” See also Smith v. Kemp, Mo., 353 S.W.2d 721. In Hemphill v. Hemphill, Mo., 316 S.W.2d 582, action was brought by the guardian of an insane wife, a resident of Oklahoma, for declarations that a decree of divorce obtained by her deceased husband was void and that she was his lawful widow, and for a decree establishing her interest in his real estate. The court there said, loc. cit. 584: “Since the petition sought an adjudication as to the interests of the parties in certain real estate, we have appellate jurisdiction.” In sundry other will contest cases we have affirmed our jurisdiction. While the judgment actually entered here made no express adjudication of title, we hold, nevertheless, that we have jurisdiction.

On the merits, the position of the appellants is: that clear, cogent and convincing proof is necessary to invalidate an instrument such as the one involved here; that this agreement is fair on its face, that it recites an adequate consideration and full disclosure of the facts, that the mutual promises constituted a good and actual consideration, that there was absolutely no evidence of fraud or lack of consideration, and that the judgment is wholly without support in the evidence. The plaintiff insists that it was shown by the evidence that the agreement was not supported by any valid consideration, that it was not “fair, reasonable and just,” and that, on its face, it did not constitute an unequivocal release of plaintiff’s marital rights.

Before discussing the authorities, we note that the last mentioned contention of the plaintiff is unsound; it is apparently based on the fact that there was no express mention in the contract of Mr. McQuate’s “estate.” It does, however, contain an express release by the plaintiff to Mr. Mc-Quate “his heirs, legal representatives, assigns, legatees, and devisees” of all and every “right, claim and estate, actual, inchoate, or contingent” of every kind and character in, to, or upon the described real estate by reason of plaintiff being or having been Mr. McQuate’s wife. The agreement could hardly have been more specific in releasing all her claims to the real estate in the hands of the heirs or legatees. The case of In Re Woods Estate, 288 Mo. 588, 232 S.W. 671, is not in point; in that agreement there were no provisions similar to those involved here and just referred to above; the court construed that contract as merely an agreement for support during the separation of the parties, with the right granted to each party to deal freely with his or her own property, and with an agreement by the wife to execute deeds or mortgages when requested, thus releasing dower in specific real estate. The terms of that contract and of the present one are in no manner comparable. It was properly held there that there was no unequivocal release by the wife of her interest in the husband’s estate.

The Missouri cases recognize generally the validity of postnuptial property settlements, provided: there is consideration; the intention of the parties is clearly expressed; and the agreement is fair and just. Woods, supra; Hall v. Greenwell, 231 Mo.App. 1093, 85 S.W.2d 150; Glauert v. Huning, Mo., 290 S.W.2d 126; Clark v. Clark, Mo.App., 228 S.W.2d 828. However, the courts look upon such contracts with considerable strictness where there is any indication that the wife has been imposed upon. Woods, 232 S.W. loc. cit. 676. We note here that the present contract did not purport to he a complete property settlement between the parties. It constituted an agreement that the wife could deal freely with her own property, that the husband could deal freely with the described tracts of real estate, that the husband released his rights in the wife’s property, and that the wife released all her rights and interest in the two specific tracts of real estate. The wife was later devised the smaller and less valuable of these two tracts, along with the personal property subject to all debts, secured and otherwise, expenses and claims. She has seen fit to renounce the will. Appellants’ counsel argue that obviously the net value of the estate is less than $65,000, but this (on the present record) is pure speculation.

We cannot disregard the fact that the husband’s full release of all interest in the wife’s property, effective to her and to her heirs, legal representatives, assigns, legatees and devisees, constituted a consideration. It was so held in Hall v. Greenwell, 231 Mo.App. 1093, 85 S.W.2d 150. It is true that in the latter case the respective property valuations were accurately shown and were found to be somewhere nearly equal. In our case there is no specific showing, though all assume that plaintiff had some personal property. We are unable to say that there was a complete absence of consideration. In Glauert v. Huning, Mo., 290 S.W.2d 126, at loc. cit. 131—132, the court said: “A husband and wife may mutually agree to the disposition of their property and if they abide by that agreement, it is binding on their heirs or devisees. Such an agreement constitutes sufficient consideration to support the contract. See 41 C.J.S., Husband and Wife, § 89, p. 562, and § 91, p. 564; Hall v. Greenwell, 231 Mo.App. 1093, 85 S.W.2d 150, loc. cit. 155(4); Clark v. Clark, Mo.App., 228 S.W.2d 828, loc. cit. 832(4-6).” See also Chapman v. Corbin, Mo.App., 316 S.W.2d 880.

The existence of a consideration, however, does not eliminate the requirement that the agreement, must be. fair and reasonable to the wife. The burden of making a showing that the agreement is unfair is naturally on the party seeking to invalidate it. And the solemn provisions and recitals in such an agreement may not be lightly brushed aside. Clark v. Clark, Mo.App., 228 S.W.2d 828, 832. The evidence here is most incomplete due largely, we assume, to the bar of the Dead Man’s Statute. However, the court should have permitted the plaintiff to show the extent of her property immediately after the appointment of the executrices. This was apparently excluded because it was deemed not to be relevant. It was probably as relevant as was the showing of the value and extent of the husband’s property by means of the inventory. While neither of such valuations would be closely related in time to the date of the contract, they were apparently the best available and did have some relevancy. Egger v. Egger, 225 Mo. 116, 123 S.W. 928, loc. cit. 935. We have the duty to make our own findings from the evidence, but we may not do so from a mere offer of proof which was denied. The proffered evidence was not taken and preserved under Civil Rule 73.01, and the asserted facts may not be considered here. For a recent review of the effect of the Dead Man’s Statute, see Birdsong v. Estate of Ladwig, Mo.App., 314 S.W.2d 471.

Essentially, the only evidence in the record bearing on the fairness of the contract is that concerning the extent and valuations of the husband’s property at the time of his death, and the valuations in 1954 of the two tracts of real estate described in the contract; even so, decedent’s debts and liabilities are not shown as of any date. The will is in evidence, but it was made and executed more than five years after the date of the marriage agreement, it had no stated connection with the contract, and it is of no materiality in our consideration of the fairness of the contract when made. It would seem that the trial court either considered the contract to have been made totally without consideration, or that the court considered it to be unfair, assuming that the wife had little property of her own. We must consider also, as already mentioned, that plaintiff did not release her rights in any personal property nor in any after-acquired real estate; and of the latter, there seems to have been a tract appraised at $48,-000 at the time of Mr. McQuate’s death, although the date of acquisition was not shown by anyone. The wife did release, or purport to release, all her interest in two tracts of land valued in the inventory at a total of $72,855, which were apparently unencumbered at that time (defendant bank’s answer giving some details of the deeds of trust). Plaintiff’s evidence showed these two tracts to have been worth somewhat less as of 1954.

The essential fairness of contracts or agreements of this general type has been considered in the following cases: Hall v. Greenwell, 231 Mo.App. 1093, 85 S.W.2d 150; Clark v. Clark, Mo.App., 228 S.W.2d 828; Mathis v. Crane, 360 Mo. 631, 230 S.W.2d 707, 27 A.L.R.2d 873 (antenuptial); In Re Woods Estate, 288 Mo. 588, 232 S.W. 671; Speiser v. Speiser, 188 Mo.App. 328, 175 S.W. 122; Johns v. McNabb, Mo., 247 S.W.2d 640; Bloss v. Bloss, Mo., 251 S.W.2d 78. In some of those cases the agreements were upheld, in others they were invalidated. It would be useless to attempt a comparison of the various facts in those cases with the very sparse facts which we have here. The trial court in such cases attempts to determine whether, under all the facts and circumstances, the provisions made for the wife or the consideration moving to her are fair, equitable and reasonable; this does not necessarily mean that she must receive any specific part of the husband’s property or even her share under the law of intestacy; note Clark v. Clark, supra. If each releases all claims on the property of the other, that of the wife need not be precisely equal to that of the husband. We have nothing here to show what the husband gave the wife by waiving his marital interests in her property, for there is no evidence as to the value of her property at any time. The mere agreement to permit her to deal freely with her own property has been held to afford no consideration. In Re Woods, supra; Bloss v. Bloss, Mo., 251 S.W.2d 78; the contrary may have been indicated in Chapman v. Corbin, Mo.App., 316 S.W.2d 880. But the present agreement went further.

We have concluded that there was not sufficient evidence to support a judgment invalidating the contract as unfair and unreasonable. By the same token, there is insufficient evidence to sustain a finding for the plaintiff here. We realize the difficulty of producing determinative evidence in view of the prohibitions of the Dead Man’s Statute. There may have been, however, some misconception at the trial of the extent of proof necessary for the invalidating of such a contract. Under these circumstances, we shall reverse the judgment but, in the exercise of our discretion, we shall remand the case for another trial to give the parties an opportunity to present such additional evidence as they may be able to discover, if they are so advised. See Obermeyer v. Hentschel et al., Mo., 389 S.W.2d 203, opinion adopted April 12, 1965. We certainly do not preclude the right to show any grounds of invalidity which are pleaded and of which there might be evidence.

We suggest that upon another trial it might be helpful for the court to make more specific findings and declarations.

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

All of the Judges concur.


author: HOGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Joe Peter McNAIL, Defendant-Appellant.
    No. 8310.
    Springfield Court of Appeals. Missouri.
    March 5, 1965.
    Rehearing Denied March 27, 1965.
    Application to Transfer Denied May 10, 1965.

      Robert B. Baker, Ellington, for defendant-appellant.
    William H. Bruce, Jr., Prosecuting Atty., Centerville, for plaintiff-respondent.
   HOGAN, Judge.

The defendant was convicted of the offense of careless and reckless driving, as defined by Section 304.010, pars. 1 and 5, and his punishment has been assessed at a fine of $15.00. He appeals. Neither the defendant nor the State has filed a brief, and it is therefore our duty to review the cause upon the assignments of error properly preserved in the motion for new trial and to examine the essential portions of the record listed in Rule 28.08. Rules 27.20, 28.02 and 28.08; State v. Brewer, Mo., 338 S.W.2d 863, 865-866 [1]; State v. Belleville, Mo.App., 362 S.W.2d 77, 78 [1],

On July 14, 1962, at 11:30 P.M., the defendant was observed driving west on Highway 21 in Reynolds County, Missouri, in a 1961 Ford pickup truck with a defective taillight. Trooper L. L. Meyer, a member of the State Highway Patrol, started to follow the truck and “noticed it was weaving back and forth across the highway.” After following the defendant’s vehicle for a little more than one-half mile, Trooper Meyer “put on the red light,” attempting to stop the defendant. Two passengers riding in the bed of the truck beat on the cab of the pickup in order to signal the defendant, and, after traveling some 200 yards further west, the defendant finally stopped. Upon interrogating the defendant, the trooper “smelled the odor of alcohol about his person and further * * his speech was impaired and his eyes were glassy and bloodshot and his ability to walk was also impaired.” The defendant was given a Uniform Traffic Ticket and was incarcerated. He was later “bonded out” and returned to his home.

On September 22, 1962, without the issuance of further process, the defendant appeared in the Magistrate Court of Reynolds County and entered a plea of not guilty. He submitted the cause to the court sitting without a jury and without, incidentally, offering any evidence in his own behalf. The Magistrate found the defendant guilty and assessed his punishment at a fine of $50.00. The defendant then appealed to the Circuit Court, and upon his application the venue was changed to the Circuit Court of Wayne County. Upon trial there on April 9, 1963, the jury was unable to agree, and a mistrial was declared. Subsequently, the cause was again submitted and this judgment of conviction resulted.

Viewing the evidence in a light most favorable to the result reached, State v. Selle, Mo., 367 S.W.2d 522, 527-528 [12-16], it was shown on trial (in addition to the facts already recited) that, when arrested, the defendant was approaching the town of Lesterville, and that the highway in question was a two-lane bituminous highway running east and west. The usable width of the highway was not specifically shown, but Trooper Meyer testified that the north or westbound lane, in which the defendant was traveling, was unobstructed. There was no other traffic on the road, and the defendant was traveling at a relatively slow speed. The center or median line was obliterated in spots because a new mat had recently been laid, but the State’s evidence was that the median line was clearly visible except for “small patches.” As the defendant approached Lesterville, he drove over a “blind hill” on the left side of the roadway at a place where his view of oncoming traffic was immediately obstructed, and Trooper Meyer estimated that in the .8 mile he followed the defendant, he observed the defendant’s vehicle cross the center line to the south four or five times. As we have noted, when he was stopped the defendant presented the odor and appearance of one who had consumed alcoholic intoxicants, and he stated that he had drunk a “couple of beers.” To a considerable extent, Trooper Meyer’s testimony was corroborated by that of a Mr. Kenneth Pate, a conservation agent who had accompanied Trooper Meyer in his pursuant and arrest of the defendant.

The defendant vigorously denied that he had been weaving back and forth across the road, and stated that “there was no white line there.” Mr. McNail’s testimony was that, on the evening in question, he had visited his mother and had then gone to a tavern near Lesterville to discuss business with a Mr. Buck Jamison. He had remained at the tavern some two to two and one-half hours, visiting friends, and had consumed only two bottles of beer. The defendant believed that this prosecution was the result of a grudge borne by one of the peace officers who had participated in his arrest but who did not testify at the trial. He produced a number of witnesses who testified to his good character.

The defendant makes a number of assignments of error directed to the sufficiency of the informations filed. He complains that the Uniform Traffic Ticket was not verified and, in effect, asserts that since the Uniform Traffic Ticket charged no offense — and we have serious doubt that it did — no subsequent amendment to the information could validate that lack of formal charge. The difficulty with this argument lies in the assumption that the proceeding in Circuit Court was merely a continuation of the proceeding in Magistrate Court. Though for some purposes this may be true in a sense, still we think the validity of the conviction in Magistrate Court is not in issue here. Upon appeal to the Circuit Court in a misdemeanor prosecution, the cause is heard de novo, and irregularities in the Magistrate Court are immaterial. Rule 22.16; State v. Smith, Mo.App., 264 S.W. 52, 53, aff’d 306 Mo. 451, 267 S.W. 869; State v. Sell, 61 Mo.App. 160, 161; State v. Gowing, 27 Mo.App. 389, 391; Kelley’s Crim.Law. & Proc., Section 1212, page 1147 (4th ed., 1928). Since there was actually a trial de novo in this case, upon a new complaint and information filed, we consider that the sufficiency of the accusation made in Magistrate Court is of no consequence, if the information upon which the defendant was actually tried is itself sufficient to charge a crime.

The accusative part of the information filed by the State after the cause had been appealed and transferred upon change of venue, is that the defendant “did then and there * * * drive and operate a motor vehicle [describing it] over and upon Highway No. 21, a public highway * * * in a careless and reckless manner, and in a manner so as to endanger the life and limb of other persons in that he failed to keep said motor vehicle as close to the right hand side of the road as practicable. * * The defendant maintains this information charged no offense whatever and was not subject to amendment.

Informations comparable to this one have been the subject of critical discussion. State v. Cook, Mo.App., 322 S.W.2d 596 [2]; State v. McCloud, Mo.App., 313 S.W.2d 177, 181-182 [5]; State v. Reynolds, Mo.App., 274 S.W.2d 514, 516 [4]. This criticism is based upon the general rule of criminal pleading that an information charging a statutory crime may be couched in the language of the statute, if the statute itself sets forth the constituent elements of the offense; but if the statute merely defines the crime in generic terms, then the constituent facts must be pleaded in enough detail to advise the defendant specifically what he must defend against. State v. Fenner, Mo., 358 S.W.2d 867, 869-870 [4, 5]; State v. Tevis, Mo.App., 340 S.W.2d 415, 419 [3,4]; Anno., 115 A.L.R. 357 (1938). The offense of careless and imprudent driving is only very broadly defined by Section 304.010, par. 1, and an information charging that offense by reciting the bare language of the statute in negative form is generally held to be insufficient. State v. Tevis, supra, 340 S.W.2d at 419 [3,4], We have the view, however, that the rule requiring pleading of the constituent circumstances in the information, where the statute denounces the offense only in generic terms, may easily be overstated when dealing with traffic offenses. The same strictness of pleading is not required in informations charging misdemeanors as in those charging felonies, State v. Lasswell, Mo.App., 311 S.W.2d 356, 357-358 [2]; the terms used in Section 304.010, par. 1, are “neither technical nor mysterious,” State v. Florian, 355 Mo. 1169, 1174—1175, 200 S.W.2d 64, 66-67 [1-3], and even a criminal pleading need not set forth the evidence by which the accusation will be supported. State v. Becker, 248 Mo. 555, 562, 154 S.W. 769, 771 [5], The information first filed in the Circuit Court might easily have been more clearly and specifically drafted, but it does charge the defendant with having driven a specific automobile at a specific time and place in a careless and reckless manner by failing to drive to the right. The information does not merely allege the offense by reciting the bare words of the statute, but adds that the offense was committed by failing to keep on the proper side of the road or in the proper place. If the defendant had filed a motion for a bill of particulars, as permitted by Rule 24.03, it doubtless would have been proper to direct the filing of such a bill, but we consider the information sufficient as against a motion to dismiss. State v. Ball, Mo.App., 171 S.W.2d 787, 792 [12] [13]; Ray v. State, 47 Ga.App. 22, 169 S.E. 538; Anno., supra, 115 A.L.R. at 361; cf. Hoover v. Denton, Mo., 335 S.W.2d 46, 48-49 [4,5].

The defendant next maintains that the State was improperly allowed to amend this original information after venue of the cause had been changed to Wayne County, because the offe’nse alleged occurred in Reynolds County, and after change of venue the information was not subject to amendment. This contention has no merit. The fact that the crime charged was committed in Reynolds County did not deprive the State of its right to amend the information after the change of venue had been awarded, and the prosecuting attorney was properly allowed to make the amendment when he did. State v. Myers, 330 Mo. 84, 89, 49 S.W.2d 36, 37-38 [2]; State v. Dixon, Mo., 253 S.W. 746, 747 [2] [3].

The defendant also says that in amending the information filed in the Circuit Court the State charged a new and different offense, contrary to the provisions of Rule 24.02. After amendment, the information charged the defendant with careless and reckless driving * * * in that he failed to operate said motor vehicle upon the right half of the roadway of said highway No. 21, but instead drove said motor vehicle upon and to the left of the center of the usable portion of said highway. * * *” Here, we think, the defendant mistakes the nature of the offense charged. The offense of careless and reckless driving, or reckless driving, or careless and imprudent driving, as it is variously called, is a separate offense made punishable as a misdemeanor. Section 304.010, pars. 1 and 5. Section 304.015, par. 2, with certain exceptions not material here, requires that vehicles be driven upon the right half of the roadway, if the public road or highway is of sufficient width, and a penalty for the violation of that requirement is provided by Section 304.026. Section 304.016, par. 4, subpar. (1), also prohibits driving to the left when the driver is approaching the crest of a grade where his view is obstructed within such distance as to create a hazard in the event another vehicle might approach, and violation of that requirement, or rule of the road, is also penalized by Section 304.026. The defendant contends that while the first information charged a violation of Section 304.010, par. 1, the second specifically charged a violation of Section 304.015, par. 2, or Section 304.016, par. 4, subpar. (1). We cannot agree that such is a reasonable construction of the amended information. It has often been said that violation of a specific rule of the road does not in itself constitute reckless driving, even though such violation may be separately denounced as a specific offense. However, it is also true that an infraction of some rule of the road, taken with the other circumstances of the case, may constitute reckless driving as well. State v. Tevis, supra, 340 S.W.2d at 419-420 [6]; Anno., 52 A.L.R.2d 1337, 1341, Section 2 [b]. What the pleader rather inartfully charged here was that the defendant drove recklessly and carelessly, specifically by driving on the wrong side of the road. This amendment doubtless represented an attempt to charge the defendant more precisely with the same crime as was charged in the first information, and in our opinion there was no departure from the first accusation. This assignment is ruled against the defendant.

The defendant’s assignment that “the Court erred in failing to give defendant’s instructions No. 1 & 2,” without sped-lying why it was error to do so, is not specific enough to meet the requirements of Rule 27.20 (a), and preserves nothing for review. State v. Malone, Mo., 301 S.W.2d 750, 759-760 [30]. Our independent review of this matter discloses no prejudicial error to the defendant, however, in refusing these instructions.

Finally, the defendant argues that his motion for judgment of acquittal made at the close of all the evidence should have been sustained, because (a) the State’s evidence indicated that the road in question was divided by an interrupted median line, and the charge was applicable only to a road without a dividing center line, and therefore “the State’s own evidence thus disproved] its theory of the case and [made] it immaterial whether defendant was actually on the right half of the roadway or not,” and (b) there was no evidence indicating that the defendant put any specific person in actual danger, though the information charged the defendant with having endangered the life and limb of other persons.

The first part of this assignment need not detain us long. Upon this appeal, we do not primarily interpret the evidence nor resolve conflicting inferences. While we do not believe the defendant’s point is well taken, insofar as it suggests that a motorist’s duty to drive to the right is meant to be conditioned upon the existence of a median stripe, still if we accept that suggestion, the State’s evidence was that the median line was clearly visible, “except for small patches.” We must construe the evidence most strongly in favor of the result reached, State v. Selle, supra, 367 S.W.2d at 527-528 [12-16], and if we do so, it is clear that the evidence is such to show the existence of an interrupted median line.

As to the defendant’s contention that no specific person was placed in actual danger and therefore the conviction cannot be upheld, we believe the defendant misconstrues the statute. It is true, apparently, that a number of jurisdictions have enacted statutes which specifically define reckless driving as the operation of a motor vehicle so as to endanger the life, limb or property of another, or “another lawfully using the highway.” 7 Am.Jur.2d, Automobiles and Highway Traffic, Sections 266, 273, pages 818-819, 822. It would seem to us, however, that Section 304.010, par. 1, prohibits both driving in a careless and imprudent manner and driving at a rate of speed which endangers the property of another, or the life and limb of any person. Our statute does not in terms require a showing that any specific person be put in actual danger; rather, it has been said that the primary object of Section 304.010, par. 1, is to prevent danger and injuries on the highways. State v. Ball, supra, 171 S.W.2d at 793. We consider the allegation that the defendant drove “in a manner so as to endanger the life and limb of other persons” to be but an alternative allegation that he drove in a negligent manner. State v. Tamanaha, 46 Haw. 245, 377 P.2d 688, 691-692 [2], reh. den. 379 P.2d 592. We consider it unnecessary for the State to prove that the life, limb or property of any specific person was actually put in danger in order to sustain a conviction of careless and reckless driving. Commonwealth v. Horsfall, 213 Mass. 232, 100 N.E. 362, 363 [1]; 7 Am.Jur.2d, Automobiles and Highway Traffic, Section 266, pages 818-819; 3 Wharton, Criminal Law and Procedure, Section 1002, pages 179-180 (1957); cf., Restatement, Torts, Section 500, comment d, page 1295. We think the evidence cannot be held insufficient upon either of the two grounds assigned by the defendant.

We find no reversible error apparent upon the record and the judgment is affirmed.

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

      . All references to statutes and rules are to ESMo (1959), V.A.M.S. and V.A.M.R., except where otherwise noted.