text:
    FORD MOTOR COMPANY, Appellant, v. David Lee McCAMISH and Hesco Parts Corporation, Appellees. David Lee McCAMISH, Cross-Appellant, v. FORD MOTOR COMPANY, Cross-Appellee.
    Court of Appeals of Kentucky.
    Dec. 9, 1977.

      Clarence McCarroll, Bartlett, McCarroll & Nunley, Owensboro, for appellant Ford Motor Co.
    Frederick C. Dolt, Louisville, for appellee David Lee McCamish.
    R. Scott Plain, Owensboro, for appellee Hesco Parts Corp.
    Before GANT, PARK and VANCE, JJ.
   PARK, Judge.

The plaintiff-appellee, David Lee McCamish, sustained severe personal injuries on October 4, 1968, when the brakes failed on an F-600 Ford Truck which he was operating for his employer, Howard Allgood. The truck had been manufactured by the defendant-appellant, Ford Motor Company, and the brake system had been repaired shortly before the accident by an authorized Ford dealer Blancett Motor Company. Upon a trial of McCamish’s action for personal injuries, the jury returned a verdict for McCamish against Ford Motor Company and Blancett Motor Company in the total sum of $129,415.00. The jury apportioned the verdict between Ford and Blancett on the basis of 30% against Ford ($38,824.50) and 70% against Blancett ($90,-590.50).

Blancett Motor Company filed an appeal (No. 75-592), and McCamish filed a cross-appeal against Blancett and Ford (No. 75-622). Subsequently, McCamish’s claim against Blancett was settled, and the appeal of Blancett and cross-appeal of McCamish against Blancett were dismissed. Consequently, the only issues remaining before this court are those raised by the appeal of Ford Motor Company (No. 75-593) and the cross-appeal by McCamish against Ford Motor Company.

ISSUES

The Ford Motor Company asserts that the trial court erred in failing to sustain its motion for a directed verdict and its motion for a judgment notwithstanding the verdict. McCamish replies that two jury issues were created by the evidence: (1) whether the brakes of the truck were unreasonably dangerous at the time it was sold by Ford Motor Company, and (2) whether Ford Motor Company failed to give proper instructions to Blancett Motor Company for the repair of brakes on that model truck. McCamish also claims that Ford Motor Company is responsible for any defects in a re-built brake shoe sold by the defendant-appellee, Hesco Parts Corporation. The jury returned a verdict for Hes-co. Consequently, there can be no merit to this assertion by McCamish even if there were some theory under which Ford Motor Company could be held responsible for the negligence or fault of Hesco Parts Corporation.

McCamish’s action was commenced in the Breckinridge Circuit Court. When the case was first tried in that court, the jury returned a verdict in favor of McCamish solely against Ford Motor Company in the sum of $66,203.00. The trial court sustained motions for a new trial, and the case was transferred to the Meade Circuit Court for the second trial. On his cross-appeal, McCamish claims that the original verdict should be reinstated in the event that the judgment entered following the second trial is reversed. He also questions the jury’s apportionment of the verdict.

WAS THE TRUCK IN AN UNREASONABLY DANGEROUS CONDITION AT THE TIME IT WAS SOLD BY FORD MOTOR COMPANY?

The accident in which McCamish was injured occurred when the brakes failed as he was descending a long hill with a full load of hot asphalt. When the brakes failed, McCamish was forced to take the truck off the road in order to avoid other traffic. McCamish asserts that Ford Motor Company is subject to strict liability on the basis of section 402A of the Restatement (Second) of Torts, which was adopted by the court in Dealers Transport Co. v. Battery Distributing Co., Ky., 402 S.W.2d 441, 446—47 (1966). Under section 402A, Ford Motor Company would be liable if the brakes on the truck were unreasonably dangerous at the time of the sale of the truck. If the brakes were unreasonably dangerous, it is immaterial whether they were dangerous because of defective design or because of an error in the process of manufacture or assembly. Ulrich v. Kasco Abrasives Co., Ky., 532 S.W.2d 197, 200 (1976).

The brakes on the truck were admittedly defective and unreasonably dangerous at the time of the accident. Therefore, the crucial question is whether McCamish’s proof established a reasonable probability that the dangerous condition of the brakes existed at the time of sale and delivery of the truck. Briner v. General Motors Corp., Ky., 461 S.W.2d 99, 103 (1970); Restatement (Second) of Torts § 402A, Comment g.

The F-600 truck in question was a 1963 model which Allgood had purchased as a new vehicle. The record fails to reflect how many miles the truck had been driven at the time of the accident in 1968. However, the truck was being driven approximately 220 miles each day during the period preceding the accident.

The truck was equipped with a hydraulic brake system. With such a system, pressure on the brake pedal activates the master brake cylinder which transmits hydraulic pressure to each of the individual wheel cylinders. The two pistons within each wheel cylinder are connected to the brake shoes by means of push rods. When hydraulic pressure is transmitted to each individual wheel cylinder, the wheel cylinder pistons push the brake shoes out against the inside of the brake drum.

Each wheel cylinder is attached by two bolts to a backing plate which in turn is bolted to the axle housing. Each backing plate carries two wheel cylinders, an upper and a lower. The two wheel cylinders are connected by the push rods to two brake shoes which face to the front and rear respectively.

On Friday, September 27, 1968, McCamish reported to his employer, Allgood, that the truck had a broken lug nut. That evening, Allgood was replacing the lug bolt on the truck when he noticed that the brake linings were worn out. On Saturday morning, September 28, Allgood took the truck to Blancett Motor Company for a full “brake job.” The brakes were relined by installing new brake shoes. One wheel cylinder was replaced, and five wheel cylinders were rebuilt by using new parts from wheel cylinder kits. The truck was returned to Allgood late Saturday.

When Allgood was greasing the truck and changing the oil the next day, he discovered that brake fluid was leaking onto the right rear brake drum. On Monday, September 30, Allgood returned the truck to Blancett. Employees of Blancett discovered that fluid was leaking from the lower wheel cylinder attached to the right rear backing plate. Because this wheel cylinder had been replaced or rebuilt on Saturday, it was removed from the backing plate for closer examination. No defect being found in the cylinder itself, a new wheel cylinder kit was installed, and the rebuilt wheel cylinder was rebolted to the backing plate. The truck was returned to Allgood that day, and on Tuesday, October 1, McCamish again began driving the truck.

McCamish operated the truck without incident until Friday, October 4, 1968. As he was descending a long steep hill, another truck stopped for on-coming traffic before making a left turn. McCamish applied the brakes which held for a few moments. Then there was a sudden loss of brake pressure, the brake pedal dropping to the floorboard. Following the accident, it was discovered that the pistons had come out of the lower wheel cylinder on the right rear backing plate thereby permitting brake fluid to escape from the braking system. A sudden loss of brake fluid would cause an immediate loss of all braking capacity. It was also noted that two bolts holding the wheel cylinder to the backing plate were bent, the wheel cylinder itself was misaligned, and the backing plate was bent at the point of the bolt holes utilized for attaching the wheel cylinder.

In support of his contention that there was evidence that the brake system was unreasonably dangerous at the time it was sold and delivered by Ford Motor Company, McCamish cites the testimony of the service manager for Blancett Motor Company and the testimony of a service manager of a local Chevrolet dealership. Both men testified that the wheel cylinder was “blown” as a result of extreme pressure being applied in an emergency braking system. In their opinion, this indicated that the brakes had been improperly designed. According to the testimony of other expert witnesses, the failure of the wheel cylinder was attributed to the negligence of Blancett employees in bolting the wheel cylinder to the backing plate. They assumed that the nuts holding the wheel cylinder to the backing plate were not tightened sufficiently. Because the nuts were not tight, abnormal stress was placed on the bolts and the backing plates everytime the brakes were applied. As a consequence, both the bolts and backing plate became bent which resulted in a misalignment of the wheel cylinder. Misalignment of the wheel cylinder would permit a push rod to slip out of the retaining groove on the brake shoe, and there would be nothing to hold the pistons within the wheel cylinder. In his brief, McCamish concedes that the jury found that the employees of Blancett failed to exercise ordinary care in repairing the brake system on the truck.

We conclude that McCamish failed to sustain his burden of proving that the truck was unreasonably dangerous at the time it was sold and delivered by Ford Motor Company. This is not a case in which the brake drum had never been pulled, thereby negating the possibility that the braking mechanism had not been disturbed by anyone after the vehicle left the hands of the automobile manufacturer and prior to the accident. See Hawkeye-Security Ins. Co. v. Ford Motor Company, Iowa, 174 N.W.2d 672 (1970), second appeal 199 N.W.2d 373 (1972), and Sharp v. Chrysler Corporation, Tex.Civ.App., 432 S.W.2d 131 (1968). In this case, the offending wheel cylinder had been removed from the backing plate. The original condition of the cylinder had been extensively modified by the installation of one or more wheel cylinder kits by Blancett Motors only days before the accident. Under such circumstances there can be no inference that the braking system of the truck was unreasonably dangerous at the time it left the hands of Ford Motor Company. See Quirk v. Ross, 257 Or. 80, 476 P.2d 559 (1970); Carroll v. Ford Motor Co., Tex.Civ.App., 462 S.W.2d 57 (1970). Taking into consideration the fact that the truck had been used continually for five years and the fact that the portion of the braking system which failed had been repaired and modified shortly before the accident, we conclude that the trial court erred in submitting to the jury the question whether the braking system was unreasonably dangerous “as the result of its design, manufacture or assembly” by Ford. The trial court erred in failing to direct a verdict for Ford Motor Company on this issue. Cox v. General Motors Corporation, Ky., 514 S.W.2d 197 (1974); Midwestern V. W. Corporation v. Ringley, Ky., 503 S.W.2d 745 (1973); and Briner v. General Motors Corp., supra.

IS FORD MOTOR COMPANY LIABLE FOR FAILING TO GIVE PROPER INSTRUCTIONS CONCERNING THE REPAIR OF THE BRAKING SYSTEM ON THE TRUCK?

McCamish’s expert witness, Professor Harry Mason, testified that the Ford Service Manual failed to specify the proper torque pressure for tightening the bolts holding the wheel cylinder to the backing plate. In Mason’s opinion, it was important that this information be provided because mechanics frequently fail to tighten bolts to the proper torque rating. Mason was an assistant professor of Mechanical Engineering at the University of Kentucky. Mason’s practical experience with brakes was confined to hydraulic braking systems used on manufacturing machinery. He had no experience in the automotive industry and no specific experience involving the design or maintenance of truck braking systems. No other witness testified that an auto mechanic needed to be instructed on the torque rating for wheel cylinder bolts.

Ford Motor Company would be under a duty to include in its service manual a specific torque rating for the wheel cylinder bolts only if there were a danger known to Ford which probably would be unknown to persons reasonably anticipated to be performing repairs and service on Ford truck brakes. Hercules Powder Co. v. Hicks, Ky., 453 S.W.2d 583, 590 (1970). The torque rating of a bolt refers to the pounds of pressure which must be applied to the bolt to assure that it is tightened properly. Special torque wrenches are used to measure the pounds of pressure being applied to a bolt. In determining whether Ford Motor Company had a duty to instruct Blancett Motors concerning the specific torque pressure to be applied to the wheel cylinder bolts, the testimony of J. C. Blancett, the owner of Blancett Motors, is particularly relevant. When asked about Professor Mason’s testimony concerning torque, Blancett testified:

No person experienced in the automobile industry indicated that it was necessary to provide an automobile mechanic with a specific torque rating for wheel cylinder bolts.

Professor Mason had no practical experience in the automobile industry. He performed no experiments on wheel cylinder bolts used on F-600 Ford Trucks. Most important, he had no knowledge of the proper torque rating for the wheel cylinder bolts. Standing alone, Professor Mason’s testimony did not create a jury issue concerning the adequacy of the Ford Service Manual. The brake system in question had been in use for many years. No new technology was involved in attaching the wheel cylinder to the backing plate. There is nothing to indicate that an experienced automobile mechanic would ever consult a service manual for the purpose of determining how tight the wheel cylinder bolts should be. Without reference to any service manual, the danger inherent in a loose wheel cylinder bolt was obvious.

In Hiigel v. General Motors Corporation, Colo., 544 P.2d 983 (1976), the plaintiff purchased a motor home mounted on a truck chassis manufactured by General Motors Corporation. The wheel attachment system of the unit was designed to function only when 75 to 110 foot pounds of torque were applied to the wheel stud bolts. The owner’s manual contained a schedule for testing torque pressure at specific mileage intervals. However, the owner’s manual gave no warning of what would occur if the proper torque pressure were not maintained. If the proper torque pressure were not maintained, it was inevitable that the wheel stud bolts would shear and that the wheels would fall off. On two occasions, the lug bolts on the plaintiff’s motor home sheared off because of improper maintenance of torque pressure. The Colorado Supreme Court held that a jury issue was created on the question of the absence of warning in the owner’s manual concerning the failure to maintain proper torque pressure. The decision in the Hiigel case is clearly distinguishable on two grounds. First, the warning in the Hiigel case was directed to the ultimate consumer, rather than automotive mechanics. Second, the evidence clearly established that there were specific critical requirements for torque pressure essential to the safe maintenance of the motor home. The Colorado Supreme Court emphasized that general knowledge that stud nuts must be kept tight did not give the plaintiff knowledge of the specific torque requirements for the lug bolts on the motor home. In the present case, there is no evidence that the wheel cylinder bolts required an unusual torque pressure. There is nothing to indicate that the range of proper torque pressure for the wheel cylinder bolts was so narrow that special procedures were required to apply the proper torque pressure.

For the foregoing reasons, we conclude that the trial court erred in submitting to the jury the question of the adequacy of the service manual or other instruction given to the service employees of Blancett Motor Company. The trial court should have sustained a motion for directed verdict on this issue.

CROSS-APPEAL

On his cross-appeal, McCamish raises three issues, all of which are related to the liability of Blancett Motor Company. McCamish argued that the entire amount of the verdict should have been assessed against Blancett with Blancett having a right of contribution against Ford Motor Company. The second issue related to the question whether McCamish was entitled to recover the entire amount of the verdict from one defendant in the event that it should be determined that the other defendant was entitled to a directed verdict. Last, McCamish asserts that the verdict rendered at the first trial against Ford should be reinstated in the event that it was held that it was error for the trial court to grant a new trial to McCamish against Blancett. Because Blancett Motor Company’s appeal and McCamish’s cross-appeal against Blancett were dismissed as settled, the questions raised by the cross-appeal against Ford Motor Company have lost all practical significance. The cross-appeal is moot and should be dismissed. See Whittle v. W. T. Rawleigh Medical Co., 177 Ky. 1, 197 S.W. 470 (1917).

RULING

In No. 75-593, the judgment of the circuit court is reversed with directions to enter a judgment dismissing McCamish’s complaint against the Ford Motor Company. In No. 75-622, the cross-appeal is dismissed.

All concur.


source: Caselaw Access Project

author: FINCH, Judge.

license: Public Domain

text:
    Thomas Wayne SMITH, Respondent, v. The INTER-COUNTY TELEPHONE COMPANY and Telecom Engineers, Inc., Appellants.
    No. 59880.
    Supreme Court of Missouri, En Banc.
    Dec. 19, 1977.

      Joseph K. Houts, St. Joseph, for appellants.
    Jerold L. Drake, Grant City, for respondent.
   FINCH, Judge.

Plaintiff, an employee of M. Summers Company, a general contractor which had a contract to perform a job which included laying underground telephone cables for The Inter-County Telephone Company, was injured when the walls of a trench in which he was working caved in on him. Plaintiff sued Inter-County and Telecom Engineers, Inc., an engineering firm which designed the project and which had a contract with Inter-County to inspect the job and make sure that it was built in accordance with the plans and specifications.

Plaintiff’s petition alleged, among other things, that although Inter-County had contracted with Summers to do the work, including digging trenches and laying telephone cables, it retained the right to control the excavation and work; that it knew that the work which Summers was to do involved a high risk of injury to employees of Summers unless special precautions were taken; that Inter-County owed to the employees of Summers a non-delegable duty to take a special precaution to see that such injury did not occur; that steps such as shoring or bracing or sloping the sides of the trenches to avoid dangers of cave-in were not taken; and that as a result of such negligence plaintiff was injured.

In response Inter-County answered that it was not liable to plaintiff because it had contracted with Summers, an independent contractor, to do the work; that it did not retain control; that the work was not inherently dangerous; that Summers and plaintiff had accepted and were operating under the Workmen’s Compensation Act; that plaintiff was a statutory employee under the act; and that his only remedy was under that act. The answer also pleaded contributory negligence.

The case was submitted to the jury on the basis of verdict directing instructions (set forth in full infra) which called for recovery if defendants had the right to control the trenching and excavating and negligently failed to shore up or brace the trench adequately, resulting in injury to plaintiff. Contributory negligence instructions also were given. Plaintiff obtained a verdict and judgment for $15,000 against both defendants. They appealed to the Missouri Court of Appeals, Kansas City District, which reversed. On application of plaintiff, the case was transferred here and we now decide it as though here on direct appeal. We reverse and remand as to Inter-County and reverse as to Telecom.

Inter-County contracted with Telecom to design and plan a project for rehabilitating and improving 190 miles of existing telephone lines and facilities and adding some new lines. Permission to lay underground cables along and under public roads of the county was obtained from Worth County. Inter-County then contracted with Summers to construct the system. Telecom, under its contract with Inter-County, was to perform the job of inspecting materials and workmanship on the job.

The main telephone cable which was installed along the road right-of-way was buried automatically at a depth of 30 inches by use of a vibrating plow. Customer connections which ran from the main cable were buried at a depth of 24 inches in trenches dug by hand or with a backhoe. When it was necessary for the line to cross an existing highway, a two inch pipe was driven under the highway. To accomplish this a trench perpendicular to the highway was excavated on one side of the highway and a trench parallel to the highway was dug on the other side. After the trenches were dug to the required depth, the backhoe was used to push the pipe under the highway from the perpendicular ditch to the parallel ditch and the cable then was threaded through the pipe.

Plaintiff was employed by Summers in April 1971 and was assigned to digging the lateral ditches for customer connections. On May 14, 1971, plaintiff reported for work at contractor’s building. It had rained and, except for some employees who wanted to work, most of the employees had been laid off. A crew was dispatched to push a pipe for the main cable under a highway and plaintiff was assigned to it.

When the crew arrived at the site where the highway crossing was to be installed, the backhoe operator first dug perpendicular and parallel ditches adjacent to the highway. The perpendicular ditch, which was on the east side of the highway, was approximately 20 feet in length. The depth of the ditch ranged from about 4 feet at the highway to about 12 feet at its east end because the land sloped upward from the highway. It was somewhat wider than the width of the backhoe bucket with which it was dug. The walls were vertical and were not braced or shored in any manner.

When the ditch had been completed, plaintiff and Ernie Gardner, another employee, entered the ditch and aligned the pipe to be driven under the highway. It was then pushed under the highway with an applicator for pushing pipe which was attached to the backhoe. When the first section had been pushed under the highway the two men then knelt in the ditch to screw a second section onto the first. It then was pushed under the highway after which the men knelt to attach a third section of pipe. Gardner was at the shallow end of the ditch. Plaintiff was toward the deeper end, testimony placing the depth at that point at somewhere between 6 and 12 feet.

While they were attaching the third section of pipe, plaintiff heard someone “holler.” He stood up and looked around and saw the north wall of the trench collapsing. He put his hands up against it and remembered dirt going over his head. Others in the crew said that he just disappeared from view but that when the dirt had settled around him, he was buried to his chest and shoulders. His fellow employees then jumped in and dug him out.

Other portions of the evidence will be recited in connection with our discussion of the various issues raised.

Inter-County’s first assignment on appeal is that the trial court erred in failing to direct a verdict in its favor. Its motion for a directed verdict alleged that the construction of this project was being performed by Summers, an independent contractor; that plaintiff was Summers’ employee; that the work being performed was not in and of itself dangerous but became dangerous only by reason of negligence of the independent contractor and its employees in doing the work; that Inter-County owed no duty to plaintiff; and that it had not been negligent.

Plaintiff offered no evidence that either Inter-County or Telecom exercised physical control over Summers’ employees. The testimony of defendants’ witnesses was to the effect that they did not exercise such control and did not direct how the job was to be performed, their work being limited to activity designed to make certain that construction was according to the plans and specifications. Plaintiff did offer in evidence the contracts between Summers and Inter-County and between Inter-County and Telecom. Because the project was being financed by REA, these contracts were on standard REA forms. Provisions therein gave Inter-County, on its own or through Telecom, thé right to inspect and to take steps necessary to secure proper performance, including quality of materials and workmanship, but such provisions did not destroy the intended relationship of owner and independent contractor. Williamson v. Southwestern Bell Tel. Co., 265 S.W.2d 354 (Mo.1954); Boulch v. John B. Gutmann Const. Co., 366 S.W.2d 21 (Mo.App.1963).

It is true, as Inter-County contends, that as a general rule one contracting with an independent contractor to do work is not normally liable for bodily harm caused to another by a tortious act or omission of the independent contractor or his servants. However, there is a well established exception to that rule where the work subcontracted involves a special or inherent danger to others. This exception was described in Stubblefield v. Federal Reserve Board of St. Louis, 356 Mo. 1018, 204 S.W.2d 718, 722 (1947), as follows:

“One of the well recognized exceptions to the rule contended for by these two defendant-appellants is that, ‘One who employs an independent contractor to do work, which the employer should recognize as necessarily requiring the creation during its progress of a condition involving a peculiar risk of bodily harm to others unless special precautions are taken, is subject to liability for bodily harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions.’ 2 Restatement, Torts, Secs. 413, 416. If the circumstances fall within this rule a primary, non-del-egable duty is imposed upon the employer — or here upon the owner and general contractor and they may not escape that duty or responsibility upon the plea of independent contractor. Annotations 23 A.L.R. 984; 115 A.L.R., l.c. 977.”

Stubblefield involved injury to one walking by a bank building under construction who was hit by a wooden wedge which fell from near the top of the building. The building owner and the general contractor contended that they were not liable because of negligence of a subcontractor, an independent contractor, or his employees. They also contended that the work was not inherently dangerous and that consequently they had no obligation to erect barricades or warn pedestrians. This court held the subcontractor relationship does not insulate the owner or contractor from liability when the injury results from danger inherent in the work subcontracted. Consequently, it affirmed the action of the trial court in setting aside a verdict for defendants and granting plaintiff a new trial against the building owner and the general contractor. Other cases which also recognize this exception include Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617 (banc 1928); Barkley v. Mitchell, 411 S.W.2d 817 (Mo.App.1967); Neal v. 12th & Grand Ave. Bldg. Co., 228 Mo.App. 536, 70 S.W.2d 136 (1934); Privitt v. Jewett, 225 S.W. 127 (Mo.App.1920); Carson v. Blodgett Const. Co., 189 Mo.App. 120, 174 S.W. 447 (1915). See also Restatement (Second) of Torts §§ 416, 427 (1977).

The case of Carson v. Blodgett Const. Co., supra, contains a more explicit statement as to just when work is inherently dangerous so as to impose liability on the owner or contractor, despite the independent contractor arrangement. It states, 174 S.W. at 448:

“The authorities generally hold that when the work to be done is inherently or intrinsically dangerous, and the danger arises from the doing of the work and requires preventive care to bring about safety, then the employer is liable notwithstanding the persons employed are independent contractors. The distinction seems to be that if the doing of the work necessarily causes dangers which must be guarded against, then the employer must see to it that such dangers are guarded against, and cannot relieve himself by casting this duty on an independent contractor. If, however, the work is dangerous only by reason of negligence in doing it, then the liability falls only on the independent contractor. In the one case the doing of the work creates danger and requires active care to counteract the danger. In the other there is no danger unless created by negligence. The one starts with danger and requires preventive care to make safety, while the other starts with safety and requires negligence to make danger. * * * ”

Most of the above cited cases involved situations where those permitted to recover on the basis of the inherent danger exception were members of the public who were injured. However, that was not true in Mallory v. Louisiana Pure Ice & Supply Co., supra. In that case the ice company contracted for the erection of a building adjacent to their existing plant. A subcontractor had the job of excavating for the foundation which went two feet deeper than the foundation of the old building. In addition, it was to extend six inches under the old foundation. While an employee of the subcontractor was working in the excavation, the old wall collapsed and plaintiff was injured. There had been no shoring and no support provided for the old wall. Plaintiff sued the ice company, the owner, and the general contractor, alleging negligence in undermining the old wall, allegedly dangerous work, without taking any steps to secure the stability and preservation of the old wall. Defendants contended that they were not liable because the work was being done by a subcontractor and was not inherently dangerous, the danger arising only because of negligence by the subcontractor in the manner in which he performed the job.

This court rejected that argument, 320 Mo. 113-14, 6 S.W.2d 625:

“Must it not be said that danger started with excavation under this wall? * * The work required to be done in the instant case, the excavation to be made underneath the wall of the height and character here shown cannot be deemed an ordinary building operation. Our conclusion is that it was an operation ‘attended with danger to others,’ or, intrinsically dangerous, in that, its performance would likely result in damage, unless proper precautionary measures were taken.”

The court subsequently concluded, 320 Mo. at 115, 6 S.W.2d at 625:

“In this case, the work at which plaintiff was engaged when injured was work at excavation and removal of the earth from underneath the wall, the very work which the contract required to be done, and work which itself created a dangerous condition, making it likely the wall would fall, unless precautionary measures were taken. * * * ”

The defendants in Mallory also contended that the inherent danger exception was not available to plaintiff as an employee of the subcontractor. After referring to an A.L.R. annotation and some cases which had considered this question, the court held, 320 Mo. 117, 6 S.W.2d 626:

“There is no contractual relation between the owner and the servant of the independent contractor; and, under that view, such servant so far as the principal employer, is entitled to his remedial rights on the same footing as others. * * * ft

Thus, our cases have clearly recognized a cause of action against one who contracts for work to be done by an independent contractor for breach of the employer’s non-delegable duty imposed by law where performance of the contract necessarily involves inherently dangerous activity. This cause of action is an exception to the general rule also recognized in our cases that the employer is not ordinarily liable for the acts or omissions of an independent contractor. To make a submissible case under this exception, our cases have established that the plaintiff must present evidence that: (1) performance of the contract necessarily involves some inherently dangerous activity; (2) the activity which caused the damage was reasonably necessary to the performance of the contract and was inherently dangerous; (3) the one contracting with the independent contractor negligently failed to insure that adequate precautions were taken to avoid damage by reason of the inherently dangerous activity; and (4) plaintiff’s damage was a direct result of such negligence. Inherently dangerous activity is that which necessarily presents a substantial risk of damage unless adequate precautions are taken.

As previously noted, plaintiff alleged in his petition that the work to be done by Summers under the contract with Inter-County was of a type which was likely to create a substantial risk of harm to Summers’ employees unless special precautions were taken. In support thereof, he offered evidence that the contract called for insertion of the pipe under the road at a substantial depth; that the walls of the trench in which plaintiff was injured were vertical, not sloped; that the ditch at that point was between 6 and 12 feet deep; and that there was no shoring or bracing of any kind. He offered in evidence the chapter on “Excavation and Shoring” from the “Manual of Accident Prevention in Construction” of the Associated General Contractors of America, which manual was incorporated by reference in the contract between Inter-County and Summers. Section 24r-7 of Chapter 24 of that manual states in part as follows: “Trenching operations are common to many types of construction and maintenance projects and are inherently dangerous. Due to the great exposure, numerous accidents in connection with trenching occur every year.” It then states that a few precautions will eliminate most of the risk, after which such precautions are listed. The first one states: “1. Shoring and/or bracing should be placed in every trench over four feet in depth, regardless of soil type, except solid rock, unless banks are sloped to the angle of repose recommended under paragraph 24-4.”

Plaintiff also offered expert testimony to the effect that a trench 6 to 12 feet deep which has vertical dirt walls with no shoring or bracing is by its very nature dangerous to persons working in that trench. In explaining his testimony to that effect, the witness said: “Soil isn’t meant to be stood up straight, and in nature it usually doesn’t occur that way, at least not for long. So if there is no shoring or any kind of bracing material against the side of the trench, if it were very deep, this would be a dangerous situation. This material here, the manual of Accident Prevention, indicates a safe depth would be four feet. Anything deeper than this would have danger of caving in.”

' Inter-County’s motion for directed verdict alleged that the work being performed by Summers under the contract was not in and of itself dangerous but became dangerous only by reason of negligence of Summers and his employees in doing the work. However, the evidence outlined above was clearly sufficient to present a factual question as to each element of the inherent danger theory as summarized above. Consequently, it was not error for the trial court to overrule Inter-County’s motion for directed verdict.

As an additional basis for contending that a verdict should have been directed in its favor, Inter-County argues in its brief that “If plaintiff was a servant, his recovery is barred by Workmen’s Compensation.” In support thereof, it cites Montgomery v. Mine La Motte Corp., 304 S.W.2d 885 (Mo.1957). This point is not very clearly articulated in Inter-County’s brief. Apparently from its answer and what the brief does say, it is contending that under § 287.040, RSMo 1969, plaintiff was a statutory employee of Inter-County and is limited to recovery under the terms of the Workmen’s Compensation Act. The Mine La Motte case so held with reference to a truck driver for an independent contractor who drove his truck into defendant’s mine and while loading his truck in the mine was injured.

Inter-County is not entitled on this appeal to relief on the basis of the foregoing assignment. Although the issue was raised in its answer, no evidence was introduced to support this affirmative defense. When Inter-County filed its motion for a directed verdict, it did not raise or rely on this issue. Likewise, in its motion for new trial, there is no reference to the Workmen’s Compensation Act or whether plaintiff was under it or whether he was a statutory employee of Inter-County. Consequently, the issue was not preserved and is not now before us for review.

Inter-County’s next assignment on appeal is that the court erred in giving Instruction No. 3 which was as follows:

“INSTRUCTION No. 3
“Your verdict must be for plaintiff and against defendant The Inter-County Telephone Co., if you believe
“First, defendant The Inter-County Telephone Co. had the right to control the trenching and excavating, and
“Second, defendant The Inter-County Telephone Co., either:
Failed to shore up, or
Failed to brace the trench adequately, and
“Third, defendant The Inter-County Telephone Co.’s conduct in any one or more of the respects submitted in paragraph Second, was negligent, and
“Fourth, such negligence either directly caused damage to plaintiff, or combined with the acts of Telecom Engineers, Inc., to directly cause damage to plaintiff,
“unless you believe plaintiff is not entitled to recover by reason of Instruction Number 7.”

As previously noted, plaintiff offered no testimony that Inter-County exercised control over Summers’ employees or over the trenching or other work done under the contract. He relied solely on the provisions in the contract between Inter-County and Summers to support his contention that Inter-County had the right to control the trenching and excavating done on the job. Interpretation of the provisions of that contract is a matter of law for the court to decide, not a factual issue for resolution by the jury. We conclude and hold that the contract gave Inter-County the right to inspect, or have its representatives, inspect the job in order to secure proper performance of the contract in accordance with the plans and specifications, but it did not place overall supervision and control of the job in Inter-County. Hence, the submission to the jury in Instruction No. 3 of the issue of whether Inter-County had the right to control the trenching and excavating was not supported by the evidence. Plaintiff, in attempting to support Instruction No. 3, cites Koirtyohann v. Washington Plumbing & Heating Co., 471 S.W.2d 217 (Mo.1971), in which an issue as to control over an employee was held to be properly submitted to a jury. However, that case involved the “borrowed servant” doctrine and whether the general contractor had surrendered complete or only partial control over the servant involved. It has no relevance to the issue now before us.

It is also immediately apparent that Instruction No. 3 does not properly submit the elements of the inherent danger theory. Thus, there is no basis for upholding the jury’s verdict and the judgment must be reversed. However, since we have concluded that plaintiff did make a submissible case under that theory, the question arises as to whether this case should be remanded for a new trial. In Zimmerman v. Associates Discount Corp., 444 S.W.2d 396, 398 (Mo. banc 1969), we considered a similar question and stated:

“In this posture, what disposition should be made of the case? It is apparent that plaintiff proceeded upon an erroneous theory of liability on the part of defendant. However, under the circumstances, we cannot conclude that this was ‘done for strategic advantage.’ See Smith v. St. Louis Public Service Co., 364 Mo. 104, 111, 259 S.W.2d 692, 696. The rule stated in Smith v. Terminal R. R. Ass’n of St. Louis, Mo.App., 160 S.W.2d 476, 479, applies: ‘The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot be had; and even though the plaintiff fails to substantiate the theory upon which his case was tried, if he nevertheless shows a state of facts which might entitle him to recover if his case were brought upon a proper theory, the judgment will not be reversed outright, but instead, in the exercise of a sound judicial discretion, the case will be remanded to give him the opportunity to amend his petition, if so advised, so as to state a case upon the theory which his evidence discloses.’ Cf. Cudney v. Midcontinent Airlines, 363 Mo. 922, 254 S.W.2d 662, and Pigg v. Bridges, Mo.Sup., 352 S.W.2d 28.
“The record shows a state of facts which justifies a remand to permit plaintiff to seek recovery under some other theory of liability, if so advised. For example, see 1 Restatement, Law of Torts, Second, § 46; Pretsky v. Southwestern Bell Telephone Company, Mo. Sup., 396 S.W.2d 566.”

We find the reasoning of Zimmerman persuasive here. We therefore conclude that the furtherance of justice requires that this case be reversed and remanded as to Inter-County to afford plaintiff an opportunity to seek recovery under the inherent danger theory.

Defendant Telecom urges on appeal that the trial court erred in failing to sustain its motion for a directed verdict. It asserts that the evidence established that it had no contract with Summers, plaintiff’s employer, had no relationship to or control over Summers’ employees and had no duty to them. None of Telecom’s representatives were at the job site when plaintiff was hurt.

In response, plaintiff urges that Telecom had the right to control the trenching operation. We disagree. The evidence does not show that Telecom exercised control or had a right to control. Plaintiff makes no assertion that Telecom contracted for inherently dangerous activity and the evidence adduced did not support such a theory against Telecom. We therefore conclude that the trial court should have directed a verdict in favor of Telecom.

The judgment against Telecom Engineers, Inc. is reversed. The judgment against The Inter-County Telephone Company is reversed and the cause is remanded for a new trial.

BARDGETT, HENLEY, DONNELLY, RENDLEN and SEILER, JJ., and McMIL-LIAN, Special Judge, concur.

MORGAN, C. J., not sitting.

      . The official reporter will be cited for this and all subsequent quotations from Mallory because of discrepancies in punctuation and wording between the then unofficial Southwestern Reporter and the Missouri Reports. The misstated passages appear at 6 S.W.2d 624-26.

      . Inter-County asserts on appeal that plaintiffs theory should have been submitted by modifying MAI 24.01: “Verdict-Directing — F.E.L.A.— Failure to Provide Safe Place to Work.” As should be apparent from our discussion and holding herein, this instruction clearly does not embody the theory of recovery under the inherent danger exception. Because there is no MAI instruction which does embody this theory, an instruction consistent with this opinion which follows the directions of Rule 70.01 will be required. This should be accompanied by an appropriate instruction defining “inherently dangerous” consistent with this opinion.


author: SEILER, Judge.

text:
    Ricky WHEATLEY, Appellant, v. STATE of Missouri, Respondent.
    No. 59971.
    Supreme Court of Missouri, En Banc.
    Dec. 19, 1977.
    Daniel B. Hayes, Clayton, for appellant.
    John D. Ashcroft, Atty. Gen., Jefferson City, for respondent.
   SEILER, Judge.

This case presents the question of whether, after counsel has been appointed for a petitioner who files pro se a motion for postconviction relief under rule 27.26, the trial court may, without giving counsel notice or an opportunity to be heard, summarily deny the motion.

The court of appeals, division one, St. Louis district, held not, in a two to one decision. The case was transferred here on application of the state. Treating the case as though it were here on original appeal, we reach the same result as did the court of appeals and remand the case accordingly.

Rule 27.26(h) provides, in part, that “If a motion presents questions of law or issues of fact, the court shall appoint counsel immediately to assist the prisoner if he is an indigent person. Counsel shall be given a reasonable time to confer with the prisoner and to amend the motion filed hereunder if desired. Counsel shall have the duty to ascertain from the prisoner whether he has included all grounds known to the prisoner as a basis for attacking the judgment and sentence and to amend the motion to include any claims not already included.”

In the case before us the trial court did, shortly after the motion was filed, appoint counsel and give notice thereof. Appointed counsel thereupon wrote movant in the penitentiary, asking for pertinent information about the grounds asserted in the pro se motion and also ordered a transcript of the guilty plea proceedings. Shortly thereafter the court, without notice, summarily denied the motion.

Once counsel had been appointed, counsel and movant were entitled to assume petitioner’s pro se motion had survived the initial hurdle of stating a claim upon which relief could be granted under the strict tests imposed by Smith v. State, 513 S.W.2d 407 (Mo. banc 1974). This being so, counsel for movant was entitled to the same treatment accorded any lawyer representing a client whose matter is firmly lodged in the court — notice before the court acts on the matter adversely to his client.

The facts are that the trial judge who made the appointment of counsel was not the regular judge of the division and was succeeded by the regular judge who returned to the bench after an illness. It was the latter who summarily overruled the motion, without notice to anyone. Evidently the regular judge concluded that the earlier judge was in error in treating the pro se petition as being sufficient to call for the appointment of counsel. Of course, a court can reverse itself on a matter pending before it, but even so, the orderly way to proceed consistent with due process under these circumstances was to notify counsel of the court’s intention to rule on the matter at a time certain, which the court could easily have done, and permit counsel an opportunity to be heard and to amend the petition.

As we said in Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 350 (banc 1950): “It is a cardinal principle, that whenever a party’s rights are to be affected by a summary proceeding, or motion in court, that party should be notified, in order that he may appear for his own protection . . .”

We said further: “In our system of jurisprudence reasonable notice to a litigant (when there exists even the possibility of action adverse to his interests) is deemed to be of the essence of fairness and justice. Reasonable notice to parties whose interests are at stake in a contemplated order is a prerequisite to the lawful exercise of the court’s power. Opportunity for a litigant to present his views as to the matters instantly before the court which may affect his rights is the very foundation stone of our procedure.”

In the case before us, this should have been done by notifying counsel. This is not to say that the presence of the movant himself, who would have to be transported from the penitentiary, is necessarily always required. That depends upon what the facts are. Here it would not have been essential that movant personally have an opportunity to be present at the determination of whether his petition was sufficient, but it was essential that his counsel be afforded such opportunity.

For failure for that to have been done, the judgment overruling the motion is reversed and the cause remanded for further proceedings consistent with this opinion.

All of the Judges concur.


author: MORGAN, Chief Justice.

text:
    Devoid MITCHELL and Florence Mitchell, Appellants, v. Rudy BUCHHEIT and Kenneth Buchheit, d/b/a Buchheit Trucking Service, Respondents.
    No. 59805.
    Supreme Court of Missouri, En Banc.
    Dec. 19, 1977.

      Robert F. Ritter, St. Louis, for appellants.
    Robert H. Burns, John H. Marshall, Clayton, for respondents.
    John C. Milholland, Harrisonville, amici curiae.
   MORGAN, Chief Justice.

After filing an opinion written by Stewart, J., the Court of Appeals, St. Louis District, pursuant to Rule 83.02 transferred the case to this court “for the purpose of [our] reexamining the existing law,” relative to whether or not the surviving parents of a minor child, in an action for wrongful death, may recover for pecuniary benefits which they reasonably could have expected after majority of the deceased child.

Decedent was 19 years and 10 months of age, unmarried, and living with his parents when killed in an accident involving two motor vehicles. The parents instituted a wrongful death action; and, judgment was entered on a jury verdict in their favor for $12,500. Both plaintiffs and defendants appealed. Plaintiffs complain of the trial court’s action in restricting evidence of damages to that period prior to decedent’s majority; and, defendants assert error in the trial court’s failure to direct a verdict in their favor for the alleged reason decedent was guilty of contributory negligence as a matter of law.

We now resolve the issues as though here on direct appeal. We do acknowledge, however, the opinion written by Judge Stewart from which we have quoted at length without benefit of quotation marks.

Facts

The collision which gave rise to this action occurred at about 4:45 a. m. on February 3,1971, on Highway 61, a short distance north of its intersection with Highway WW in Pike County. Highway 61 is a two-lane highway. Each lane is about 11 feet wide with shoulders of four feet each. The road, in that vicinity, runs north and south. It had been raining, snowing and sleeting through the previous night. It was dark and there was a freezing mist falling at the time of the collision. The roads were iced.

Plaintiffs’ decedent, an employee of the State Highway Department, had been called at about 9:00 p. m. on the night before to operate a department truck spreading salt and cinders. Decedent was accompanied by Lloyd Kuntz, who rode along as a helper. The truck was equipped with headlights, taillights, a revolving yellow light on top, and running lights. It also had three sets of directional signals: one set in the front of the truck, one just forward of the front door and one in the bed of the truck at the rear. When the directional signal is operated all three sets of signals will operate. If one signal fails to operate all will fail. When the bed is raised for spreading the taillight cannot be seen.

Decedent had been instructed to spread salt and cinders north beyond Highway WW and then to turn around at the driveway to the home of one Thomas and then move south spreading the southbound lane of the highway. The driveway to the Thomas home is on the west side of the road and is a private drive. During the salting operation decedent drove at a speed of about 25-30 m. p. h.

Defendants’ employee, Francis Peer, was operating their tractor with a 40-foot trailer enroute from Perryville, Missouri, to Washington, Iowa, with a load of 735 feeder pigs. He was going north on Highway 61 at a speed of 45-50 m. p. h. He was first aware that there was a truck spreading salt ahead of him by reason of the condition of the road. The highway was melting off. He first noticed this condition when he was about two miles from the site of the collision. When about half a mile from the point of collision, Peer first saw the highway truck about a quarter of a mile ahead of him.

When the truck driven by decedent was 200 feet from the Thomas driveway, he activated the left turn directional signal. As he approached the drive, he slowed his speed to 5-8 m. p. h.

Mr. Peer was unable to estimate the speed of the highway truck at any time while it was in his sight. When he was about 50 feet behind the truck, he pulled out to pass it. He did not see the left turn signal. He did not sound his horn. He was looking ahead for oncoming traffic. When the highway truck got to the Thomas driveway it made a left turn, and while in the turn the defendants’ vehicle struck the left side of the highway truck at the left door. The left wheels of defendants’ vehicle were about 4 feet off the highway at the time of impact. The vehicles locked and continued down the highway some 225 feet, primarily in the left lane. Plaintiffs’ decedent was thrown from the truck and died as a result of the injuries. He did not make a statement before he died.

The defendants’ driver testified on behalf of defendants by way of deposition. He testified that he was 50 feet to the rear of the highway truck when he pulled out to pass, and when he got into the left-hand lane he flashed his all-weather, high intensity lights twice by way of a hand switch on the dash.

Defendants’ Appeal

Defendants’ sole contention is that plaintiffs’ decedent was contributorily negligent, as a matter of law, in failing to see what looking would have revealed and in thereafter turning left when it was not reasonably safe to do so.

The burden of proving contributory negligence was upon defendants unless plaintiffs’ evidence established it as a matter of law. The issue of contributory negligence is one of fact for the jury unless reasonable minds could draw only the conclusion that plaintiff was negligent. Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498, 499-500[1-4] (1951).

Defendants relied heavily on the following portion of § 304.019, RSMo 1969:

No person shall stop or suddenly decrease the speed of or turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided herein.

This portion of the statute was discussed in Reed v. Shelly, 378 S.W.2d 291, 297 (Mo.App.1964), wherein it was said:

Section 304.019 does not, in our view, prohibit a left turn unless the circumstances are absolutely free from danger, nor does it require the maintenance of a continuous observation to the rear prior to or during the making of a left turn.

Because of the death of plaintiffs’ son there was no direct evidence that he looked or that he failed to maintain a proper lookout. The fact that the accident occurred does not require a finding that decedent failed to look at any particular time. Ruediger v. American Bus Lines, Inc., 426 S.W.2d 4[10] (Mo. banc 1967). Where there is no direct evidence on the issue, the deceased is clothed with the presumption of due care. Foley v. Hudson, 432 S.W.2d 205, 209[6] (Mo.1968).

Defendants' driver testified that he pulled his rig out to pass when 50 feet from the highway truck. The jury could believe he was then going 50 m. p. h. or 10 times the 5 m. p. h. of the highway truck, and that the truck was then approaching and going into its left turn. The jury could have found that if decedent looked at any time after he activated the left turn signals up to the time he was committed to his turn, about the time defendants’ truck started to move to the left to pass, he would have seen a vehicle traveling in its own lane with no indication that it was intending to pass.

The question of contributory negligence was for the jury. Williamson v. Winfrey, 444 S.W.2d 495 (Mo.1969), and Wilkerson v. State Farm Mutual Automobile Ins. Co., 510 S.W.2d 50 (Mo.App.1974).

Defendants cite us to no case in which a left-turning motorist was held to be con-tributorily negligent as a matter of law. They rely primarily on Huff v. Trowbridge, 439 S.W.2d 493 (Mo.1969), which was carefully analyzed in Williamson v. Winfrey, supra. A further discussion here would serve no useful purpose. The judgment of the trial court is affirmed as to defendants’ appeal.

Plaintiffs' Appeal

As heretofore noted, plaintiffs contend that the award of $12,500 was inadequate, and that such an unacceptable result was caused by the trial court erroneously refusing to admit evidence or permit argument that circumstances were such that plaintiffs reasonably could have expected pecuniary benefits from their son after he reached majority. It is also argued that plaintiffs should have been allowed to give MAI 5.03 in a form with respect to damages as to include the bracketed phrase “[and are reasonably certain to sustain in the future.]”

The Court of Appeals agreed with plaintiffs and would have remanded the cause for a new trial as to damages; but, being bound by the latest pronouncements of the substantive law by this court, ordered transfer. We agree that a reassessment of the issue is proper and necessary.

In this state,the Wrongful Death Act was enacted originally in 1855. It has been revised several times since, including 1879, 1905, 1955, 1967 and 1973 Amendments. Throughout, and to this date, the interpretation placed upon the statute by the courts of this state was delineated best in Oliver v. Morgan, 73 S.W.2d 993 (Mo.1934), wherein this court stated, 1. c. 997, that:

“It is . clearly the law that the basis of the recovery [for the death of a minor child] is the value of the child’s services to the parents during the child’s minority, and that from this must be deducted the expenses of the support and maintenance of the child during that period * * * Parsons v. Missouri Pac. R. Co., 94 Mo. 286, 6 S.W. 464 * * * So long as the statute permits a recovery in such a ease of only the pecuniary loss to the plaintiffs, the plaintiffs must prove and the jury find an actual pecuniary loss in order to recover.”

For the purposes of this discussion, we need not consider those provisions allowing a jury in assessing damages to take into consideration any aggravating circumstances attending the wrongful act.

The case of Parsons v. Missouri Pacific Ry. Co., supra, relied on in the Oliver case, provided the predicate upon which the rule has continued to rest. Therein, 6 S.W., the court said at 467:

Under our statute a right of action can only accrue to the father or mother of a minor child . . . For the death of [an adult child the parent] has no right of action, and can recover nothing, although his life may have been in the past, and promised to be in the future, of almost inestimable pecuniary value to his parent. While the life of the [minor child] may never have been, and gives no promise ever to be, of any value to his parent, the life of the older may have been his parents’ stay, hope, and support; that of the younger the care and burden; yet the law gives damages in the latter case, and none in the former. This distinction illuminates the meaning of the word ‘necessary’ used in the statute, and shows that the damages in the case in which they are given are not to be measured by the uncertain and supposititious value to be placed upon a life as such, but by a reasonably certain and fixed rule growing out of the relations existing between a parent and his minor child, and the corresponding duties, rights, and obligations of that relation. The law presumes the life of a minor child to be of value to his parent, because he is entitled to his services, and is responsible for his support during minority. He is necessarily injured by a wrongful act resulting in the death of such minor child, which thereby deprives him of the value of those services, and casts upon him the burden of legal liability for that support when deprived of the value of such services, enhanced by the additional expense of providing medicine, medical attention, and nursing during illness, and for funeral charges when he dies * * * It is the life of the son’s minority, and not the life of the son, for which the parent is to be compensated. In the class of cases to which this belongs the field of inquiry is limited to a time certain, i. e., the majority of the minor . .

The reasoning of the court in the Parsons case becomes obvious, i. e., if the statute did not recognize a cause of action in the parents for the death of an adult child surely damages recoverable for the death of a minor child could be calculated only to the time such child reached majority. Thus, the statute was interpreted as creating a right of recovery only for those whom the deceased was obligated to serve.

The statute was amended as seen in Laws 1905, page 135, (§ 5425, RSMo 1909) and survived as § 537.080(3). It. provides, in part, that:

. if there be no husband, wife, minor child or minor children, natural born or adopted as hereinbefore indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent .

Recovery, therefore, was no longer limited to the parents in a wrongful death case involving a minor. An administrator or executor could recover as a trustee. Logically, no framework remained for the idea a deceased had to be legally obligated to furnish support to the beneficiary. It was sufficient if there existed “a reasonable probability of pecuniary benefit to one from the continuing life of another . . .” McCullough v. W. H. Powell Lumber Co., 205 Mo.App. 15, 216 S.W. 803, 807 (1919).

Later cases, oddly enough, did not undertake to reassess the limitations created in the Parsons case, although doubts as to the validity thereof did appear. For instance, in McCrary v. Ogden, 267 S.W.2d 670 (Mo.1954), this court, 1. c. 676, stated: “Whether our past interpretations of the section, to the effect that recovery is limited to pecuniary loss and in the case of an infant, to the value of services during minority only, are basically correct, may be debatable — but we have consistently so construed the section.” A further amendment to § 537.090 may be found in Laws 1967, at page 663, which reads, in part:

. . in every such action the jury may give such damages ... as they deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue . . . (Emphasis added.)

Further amendments to § 537.080(2), in the same year, allowed parents a recovery for the wrongful death of an unmarried adult child. Rogers v. Fiandaca, 491 S.W.2d 560 (Mo.1973); Davis, Wrongful Death, 73 Wash.L.Q. 327, 342-3 (1973). There remained, however, the thought that “necessary injury” had to be equated with “pecuniary loss.” Although not applicable to this case or dispositive of any issue presented by the parties, it must be noted that after amendment in 1973 § 537.090 calls for “. . . such damages as will fairly and justly compensate such party or parties for any damages he or they have sustained . . . ” The word “necessary” significantly is missing. The remainder of the amendment is persuasive, however, as to the intent of the Legislature and the logic of Judge Stewart’s conclusion. It allows, in addition, such damages as the parties “. . . are reasonably certain to sustain in the future as a direct result of such death . . .”

For judicial efforts to avoid the harshness of the rationale of the Parsons case, see Domijan v. Harp, 340 S.W.2d 728 (Mo.1961); Hartz et al. v. Heimos, 352 S.W.2d 596 (Mo.1962); or Mudd v. Quinn, 462 S.W.2d 757 (Mo.1971). Similar cases are noted in Vol. 10, Mo.Dig., Death, and

We have concluded that the holding in the Parsons case is not tenable under the present statutory provisions, nor can it stand on its own logic. Parents, seeking to recover for the death of a minor child, should not be prohibited from trying to establish a reasonable probability of pecuniary benefit from the continued life of said child beyond the age of minority. We so hold, and thus shift Missouri from a minority to majority position as shown by the appendix attached hereto.

Amicus curiae, in a most excellent brief, suggests that recovery should be had for tortuous loss of society and companionship. However, this question was not raised on appeal by the parties and we decline to review this added issue. Thus, the direction found in MAI 5.03 that [You must not consider grief suffered by plaintiffs.] remains a viable alternative for defendants as explained in paragraph 3 of the “Notes on Use.”

The judgment heretofore entered is affirmed except as to damages and the cause is remanded to the trial court for a new trial on that issue only.

BARDGETT, HENLEY, FINCH, DON-NELLY and SEILER, JJ., and SHAN-GLER, Special Judge, concur.

RENDLEN, J., not sitting.

APPENDIX

The following 26 states represent the majority rule and allow damages for loss of contributions and benefits after majority age is reached. Each state sets the quantum of proof necessary to establish post majority benefits.

ARIZONA — (Rev.Stat.Ann. § 12-542) Pacific Gas and Electric Co. v. Almanzo, 22 Ariz. 431, 198 P. 457[7] (1921); Inspiration Consol. Copper Co. v. Bryan, 35 Ariz. 285, 276 P. 846 (1929) (value of benefits parents might reasonably have expected from the child after his majority.) ARKANSAS—(Stat-Ann. § 27-906-909) St. Louis S. F. RR. Co. v. Perryman, 213 Ark. 550, 211 S.W.2d 647[17] (1948) (reasonable expectancy of post majority benefits). CALIFORNIA — (Civil Pro. § 377) Riley v. California Erectors, Inc., 36 Cal.App.3d 29, 111 Cal.Rptr. 459 (1973) (in addition to other factors — includes deprivation of comfort, society and protection of the child which the child may afford to parent). COLORADO —(Rev.Stat.Ann. § 13-21-201) Herbertson v. Russell, 150 Colo. 110, 371 P.2d 422 (1962) (benefits reasonably anticipated after majority). DISTRICT OF COLUMBIA—(DC Code Ann. § 16-2701) Hord v. National Homeopathic Hospital, 102 F.Supp. 792[7] (D.C.D.C.1952); Reed v. Gulf Oil Corp., 217 F.Supp. 370 (D.C.D.C.1963) (expectancy of possibility of contributions after majority). ILLINOIS—(Rev.Stat. Ch. 70, § 2) Wallace v. Rock Island, 323 Ill.App. 639, 56 N.E.2d 636 (1944) (reasonable expectation of benefits after majority). KANSAS — (Stat.Ann. § 60-3203 and § 60-1903) Corman v. W. E. G. Dial Telephone, 194 Kan. 783, 402 P.2d 112 (1965) (probability of financial assistance after majority). LOUISIANA—(Civil Code Ch. 2 Article 2315) Curry v. Fruin-Colnon Contracting Co., 202 So.2d 345 (Ct.App.La.1967) (probability of future support by child). MAINE—(Rev.Stat.Ann. tit. 18, § 2552) Carrier v. Bornstein, 136 Me. 1, 1 A.2d 219 (1938) (includes pecuniary benefits which would have accrued after majority). MARYLAND—(Ann.Code, §§ 3-901 through 3-904 (formerly art. 67 § 4) Barrett v. Charlson, 18 Md.App. 80, 305 A.2d 166, 178 (1973). MICHIGAN—(Mich.Comp. Laws § 600.2922) Thompson v. Ogemaw County, 357 Mich. 482, 98N.W.2d 620[4] (1959) (reversed prior cases to allow recovery for loss of reasonable expectation of support). MINNESOTA—(Stat. § 573.02) Luther v. Dornack, 179 Minn. 528, 229 N.W. 784 (1930) (benefits reasonably expected after majority). MISSISSIPPI—(Code Ann. § 11-7-13) Yazoo & M. R. Co. v. Beasley, 158 Miss. 370, 130 So. 499 (1930); Gordon v. Lee, 208 Miss. 21, 43 So.2d 665[4] (1949) (gratuities that parents had a reasonable expectation of receiving after majority). MONTANA — (Rev.Code Ann. § 93-2810) Burns v. Eminger, 84 Mont. 397, 276 P. 437 (1929) (on proper showing, reasonable expectation of benefits after majority). NEBRASKA — (Rev.Stat. § 30-810) Westring v. Schwanke, 185 Neb. 579, 177 N.W.2d 506[2] (1970) (contributions expected with reasonable certainty after majority). NEW JERSEY — (Rev.Stat. Title 2A:31-5) Gluckauf v. Pine Lake Beach Club, Inc., 78 N.J. Super. 8, 187 A.2d 357 (1963) (reasonable expectation of support and maintenance after majority). NEW YORK — (§ 5 — 4.3 Estates, Powers and Trust Law) Sutherland v. State, 189 Misc. 953, 68 N.Y.S.2d 553[16] (1947) (loss of probable benefits from life after majority); Fornaro v. Jill Bros. Inc., 42 Misc.2d 1031, 249 N.Y.S.2d 833, 839 (1964) Rev. on other grounds 22 A.D.2d 695, 253 N.Y.S.2d 771 (1964) (possibility of receiving further contributions in later life after majority of child). NORTH CAROLINA — (Gen.Stat. § 28A-18-3 (formerly § 28-174)) Rea v. Simowitz, 226 N.C. 379, 38 S.E.2d 194 (1946). NORTH DAKOTA—(Cent.Code § 32-21-02) Willert v. Nielsen, 146 N.W.2d 26[7] (N.D.1966) (loss of contributions reasonably expected after majority). OHIO—(Rev.Code § 2125.02) Cincinnati St. Ry. Co. v. Altemeier, 60 Ohio 10, 53 N.E. 300 (1899); Flory v. N.Y. Central Rd. Co., 170 Ohio 185, 163 N.E.2d 902[4] (1959) (if reasonable expectation that aid will continue in future after majority). OKLAHOMA — (Stat. Tit. 12, § 1053) Parkhill Trucking Co. v. Hopper, 208 Okl. 429, 256 P.2d 810 (1953); Rogers v. Worthan, 465 P.2d 431, 438[5] (Okl.1970) (reasonably expected after majority). SOUTH DAKOTA — (Code § 21-5-5) McCleod v. Tri-State Milling Co., 71 S.D. 362, 24 N.W.2d 485[13] (1946) (benefits reasonably expected after majority). TEXAS — (Rev.Civ.Stat.Ann. art. 4671 and 4675) Banker v. McLaughlin, 200 S.W.2d 699, 702[2] (Tex.Civ.App.1947) affirmed 208 S.W.2d 843 (reasonably anticipated contributions after majority); Wales Trucking Co. v. Kisener, 373 S.W.2d 266, 268[2] (Tex.Civ.App.1963) (financial contributions parents could reasonably expect to receive from child after majority). UTAH — (Code Ann. § 78-11-6, 7) Van Cleave v. Lynch, 109 Utah 149, 166 P.2d 244 (1946) (loss of benefits parents might reasonably have expected to have received after majority). VERMONT — (Stat.Ann. Title 14 § 1491-92) Allen v. Moore, 109 Vt. 405, 199 A. 257[1] (1938); Butterfield v. Community Light and Power Co., 115 Vt. 23, 49 A.2d 415[7 — 9] (1946) (on proper showing damages would include loss of reasonably expected pecuniary benefits accruing after minority). WISCONSIN — (Stat.Ann. § 895.04) Johnson v. Chicago & N. W. R. Co., 64 Wis. 425, 25 N.W. 223[1] (1885) (damages include reasonable expectation of pecuniary benefits even beyond majority age).

The following 6 states represent the minority jurisdiction which limit recovery to loss of services during minority only, usually upon the basis that a parent’s legal right to services terminates at majority and any possibility of benefits thereafter is merely speculative.

FLORIDA — (StatAnn. 768.16-.27 (formerly 768.03)) Gresham v. Courson, 177 So.2d 33, 37[5], 41 (Fla.App.1965). INDIANA — (Ann.Stat. Title 34 § 1-1-2) Wallace v. Woods, 149 Ind.App. 257, 271 N.E.2d 487 (1971). IOWA — (Code Ann. 633.336 & 611.20) Wardlow v. Keokuk, 190 N.W.2d 439[1-2] (Iowa 1971). OREGON — (Rev.Stat. § 30.-010) Jones v. Flannigan, 270 Or. 121, 526 P.2d 543, 546[6] (1974). PENNSYLVANIA—(Title 12, §§ 1601-04) Chambers v. Peter & A. J. Ellis, Inc., 104 Pa.Super. 41, 158 A. 583[5] (1932); Jenkins v. Beyer, 118 Pa.Super. 527, 180 A. 135, 137 (1935). WASHINGTON — (Rev.Code Ann. § 4.24.010) Mieske v. Public Utility District No. 1, 42 Wash.2d 871, 259 P.2d 647, 648[2] (1953).

      .MAI 5.03 did not have the effect of changing the law. It does not mention any restriction on recovery by the parents to the child’s minority. However, it contemplates that . . the jury will be properly advised by the argument concerning details . . . ” and the elements of damages for consideration. Boten v. Brecklein, 452 S.W.2d 86, 93 (Mo.1970).

      . An anomaly being Sharp v. National Biscuit Co., 179 Mo. 553, 78 S.W. 787 (1904).

      . An earlier Supreme Court case, Rains v. St. Louis, I. M. & S. Ry. Co., 71 Mo. 164 (1879), stated the rule without an analysis of the reason for the rule.


author: STEWART, Judge.

text:
    David FRANCOIS, Plaintiff-Appellant, v. Lillian M. JONES, Executrix of the Estate of Joseph S. Kerry, Deceased (Substituted Party Defendant in Place and Stead of Joseph S. Kerry, Deceased), Defendant-Respondent, and Oscar Session and Violet Session, Intervenors-Defendants-Respondents, and Charles Session and Carol Session, Defendants-Respondents.
    No. 37879.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Nov. 1, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.
    Francis L. Ruppert, Ruppert & Schlueter, Clayton, for plaintiff-appellant.
    James F. Gunn, Bernard A. Ruthmeyer, St. Louis, for defendant-respondent.
   STEWART, Judge.

This is a court tried proceeding in which defendants prevailed. It arises out of a sales contract, dated January 16, 1968, whereby Joseph S. Kerry agreed to sell to David Francois, plaintiff, certain real estate in St. Louis County. The closing date was February 20,1968. The contract was never consummated. Plaintiff sued Joseph S. Kerry, seeking specific performance of the contract. Oscar and Violet Session, his wife, alleging that they were the owners of the real estate, were granted leave to intervene. Upon the death of Joseph S. Kerry, Lillian M. Jones, Executrix of the estate of Joseph S. Kerry was substituted as a party defendant. We will refer to the latter defendant and to Joseph S. Kerry as Kerry. The petition upon which the case was tried was in three counts. In the first count plaintiff sought specific performance of the contract, praying for conveyance of the real estate to plaintiff by the estate of Kerry. The second count sought damages against Kerry’s estate for breach of the sales contract. The third count was directed toward the intervenors, Oscar and Violet Session and additional parties defendant Charles Session and Carol Session, his wife, charging that they “conspired together” to induce Kerry to breach the contract to sell the real property. Plaintiff sought actual and punitive damages and the conveyance of the real estate which was alleged to be titled in the names of Charles Session and Carol Session.

At the close of plaintiff’s evidence and after submission of memoranda by the parties the trial court sustained the defendants’ motions for “directed verdict.” We affirm.

We first consider the scope and the nature of our review. This was a court tried case involving legal and equitable causes of action and will be reviewed as cases in equity. Rule 73.01, subd. 2(a). “[A] motion for directed verdict like our old demurrer to the evidence has no place in an equity case.” Moser v. Williams, 443 S.W.2d 212, 215[1] (Mo.App.1969). “Its only effect was to rest the case and submit it to the chancellor on the merits.” Sloan v. Dunlap, 354 Mo. 1211, 194 S.W.2d 32, 37[3] (1946). Our review is governed by Rule 73.01 and the judgment of the trial court will be sustained “[Ujnless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Garron, 536 S.W.2d 30, 32[1-3] (Mo.1976).

We view the evidence most favorably to the result reached by the trial court. Stark v. Stark, 539 S.W.2d 779, 781[1] (Mo.App.1976).

In March of 1967, Kerry signed an exclusive listing contract with Maroon Realty Company for the sale of a parcel of real estate owned by Kerry, located at Lemay Perry and Butler Hill Roads, in St. Louis County. The listing price was $47,500.00.

This property had formerly been owned by Oscar and Violet Session. Plaintiff had submitted an offer to Oscar Session to purchase the subject real estate for $58,000.00 in 1966. When plaintiff learned’that the Oscar Sessions no longer owned the property the matter was dropped.

On January 16, 1968, plaintiff contacted Frank Maroon (Maroon) of Maroon Realty Company and offered $35,000.00 for the property. Maroon prepared a sales contract on a printed form. The contract was signed by Maroon, as agent for Kerry, and by plaintiff, who gave Maroon a check for $500.00 as earnest money. The contract called for additional earnest money in the sum of $1,000.00 to be paid on January 18, 1968, with closing on February 20, 1968. No specific hour was designated for the closing. Maroon, on the same day, took the contract to Kerry’s home. He asked Kerry to sign the contract advising him that he ought to accept the offer. Maroon did not advise Kerry that he had a right to make a counter offer or that he might be able to get more money for the property. Kerry signed the contract. Plaintiff did not make the additional earnest money payment on January 18, 1968, but Maroon accepted plaintiff’s personal check for $1,000.00 on January 20, 1968.

Some time before February 20,1968, Kerry told Maroon that “he felt that he didn’t want to go through with the [contract], that some one told him he could get more money for the property.” Maroon told plaintiff that he was having trouble getting Kerry to close. Maroon, who had placed the insurance and paid the taxes for Kerry, did not draw a closing statement and did not prepare a warranty deed. He testified that this was not done because he did not get the title from Kerry. By the terms of the contract, plaintiff authorized Maroon to run the title.

Plaintiff appeared at Maroon’s office on the morning of February 20th, the date set for closing. Mr. Kerry was not present. Plaintiff did not tender any money either in cash or its equivalent, a cashier’s check, on the closing date. “He said he’d make arrangements to provide the money to close this transaction.”

Before plaintiff left that afternoon, Maroon pasted a jurat to the reverse side of the sales contract and gave it to him. The following day, plaintiff had the sales contract recorded.

Some time after the contract was recorded Maroon took plaintiff to visit Kerry in the hospital. Kerry showed plaintiff a contract which he had submitted to Oscar Session for the subject property calling for a consideration of $58,000.00. Kerry did not say whether he would or would not close the sale under the contract for $35,000.00.

On December 3,1969, Kerry conveyed the property to Charles Session and Carol Session, his wife, by warranty deed. On the same date, Mr. and Mrs. Charles Session executed a deed of trust on the property to secure a note in the sum of $42,500.00. Other facts will be developed where germane to the issue under discussion.

At the close of plaintiff’s ease, the court, upon motion, dismissed Count III of plaintiff’s petition. The parties were granted time to file memoranda with respect to Counts I and II. Upon final submission, the court sustained defendants’ motions to dismiss Counts I and II. The court in its order stated:

“The above order is based on the Courts finding that Frank Maroon, by his own testimony, attempted to act as ‘agent’ for both parties to a real estate sales contract without disclosing that fact to his principal. Accordingly any alleged sales contract is void. See Fine v. Stiers, 326 S.W.2d 392, l.c. 398, State v. Edwards, 345 Mo. 929, 137 S.W.2d 447, l.c. 449.”

Plaintiff’s primary attack on the judgment of the trial court is directed at the court’s finding that Maroon attempted to act as agent for both parties without disclosing that fact to his principal. A judgment in a court tried case will not be disturbed if there is any ground upon which it can be sustained even if the trial court should give a wrong or insufficient reason for its decision. Edgar v. Fitzpatrick, 377 S.W.2d 314 (Mo.1964).

The proposition of law that is most clearly evoked by the facts of this case is enunciated in Robb v. N. W. Electric Power Cooperative, 297 S.W.2d 385, 388[4] (Mo.1957):

Where the right is executory, and the instrument securing and evidencing it is materially altered by one having a beneficial interest therein, that instrument, as evidence of the right therein described, is destroyed, but where the instrument merely evidences an executed transaction and is a memorial of it, the rights which vested by virtue of that transaction in the person who then materially alters the instrument are not thereby destroyed or divested, although the material alteration may destroy the instrument as to any executory features therein.

The addition of a jurat to an instrument to permit the instrument to be recorded, thereby placing a cloud upon a title, has been held to be a material alteration. Kempf v. Phillips Pipe Line Company, 61 S.W.2d 422, 424 (Mo.App.1933).

In the case before us there is no evidence to warrant a finding that a jurat was intended to be placed upon the contract of sale. There was no place provided on the printed contract for a jurat. On the date of closing, February 20, without the knowledge or consent of Kerry, Maroon, a person having a financial interest in the contract, pasted a form of jurat on the back of the contract of sale. The acknowledgement was dated back to January 16,1967. It was placed on the contract so that plaintiff could record it and thus cloud the title.

The material alteration was made in the executory contract to the detriment of Kerry, thus, the contract was rendered void. Robb, supra.

There is in this case the question of whether plaintiff tendered performance, whether the parties, Session, conspired to induce defendant to breach the contract of sale and whether Maroon acted in a dual capacity of agent without revealing his role to Kerry, his principal. Inasmuch as we have determined that the material alteration voided the contract, we need not pursue the other issues.

The judgment of the trial court was for the proper parties.

The judgment is affirmed.

McMILLIAN, P. J., and REINHARD, J., concur.

      . Plaintiff testified that the offer required seller to make $30,000 in repairs to the improvements which was delineated in an addendum to the contract. The contract was in evidence, but no addendum was attached.

      . This case is criticized in Robb v. N. W. Electric Power Cooperative on other grounds.


author: McMILLIAN, Judge.

text:
    STATE of Missouri ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff-Appellant, v. PUBLIC WATER SUPPLY DISTRICT NO. 2 OF JEFFERSON COUNTY, Missouri, Defendant-Respondent.
    No. 38301 (38222).
    Missouri Court of Appeals, St. Louis District, Division One.
    Nov. 8, 1977.
    Motion for Rehearing and/or Transfer Denied Dec. 16, 1977.

      Bruce A. Ring, Chief Counsel, Jefferson City, John H. Gladden, Asst. Counsel, Joplin, for plaintiff-appellant.
    Thurman, Nixon, Smith, Howald, Weber & Bowles, John W. Howald, Hillsboro, for defendant-respondent.
   McMILLIAN, Judge.

Appellant State Highway Commission appeals from a judgment of the circuit court of Jefferson County sustaining respondent Public Water Supply District No. 2’s motion for a directed verdict at the close of appellant’s evidence. The trial court directed a verdict in favor of respondent on the ground that the roads at issue were not public roads within the meaning of § 227.-240, RSMo 1969. For the reasons discussed below, we affirm.

Appellant brought this action for money damages against respondent to collect the cost of relocating certain water lines owned by respondent and located within the new right-of-way of state highway 30. These water lines were also located within the right-of-way lines of six streets: Count I, LaKenny Lane; Count II, Green Valley and Valley Del Drives; Count III, New Sugar Creek Road; Count IV, Main Drive; and Count V, Dillon Drive. Count VI requested repayment for some preliminary engineering work but was subsequently dismissed.

The parties agreed to a partial stipulation of the following facts: the land records of Jefferson County contain subdivision plats on file which indicate the roads in question; the dedicators of the subdivisions in which the roads are located subsequently sold lots from each subdivision; no federal, state, county, township or special district employees, equipment or funds were used in the construction or maintenance of the roads in question; and any maintenance performed has been at the expense of property-owners served by the roads. It was also stipulated that respondent’s water lines were located within the right-of-ways as indicated on the subdivision plats and that none of the roads were located within any city boundaries.

As noted above, the trial court sustained respondent’s motion for a directed verdict on Counts I, II and IV on the ground that the roads were not public roads. Counts III and V were submitted to the jury and verdicts were returned in favor of appellant on those counts. Appellant appeals only from the directed verdicts on Counts I, II and IV.

A directed verdict is a drastic action and should not be granted at the close of respondent’s evidence unless the evidence and all reasonable inferences to be drawn therefrom are so strongly against respondent that reasonable persons could not differ on the correct disposition of the case. E. g., Stogsdill v. Gen. Am. Life Ins. Co., 541 S.W.2d 696 (Mo.App.1976); Brown v. Gamble Constr. Co., 537 S.W.2d 685 (Mo.App.1976). In reviewing the action of the trial court in sustaining respondent’s motion for a directed verdict, we must determine whether appellant made a submissible case; the evidence must be considered in the light most favorable to appellant and appellant given the benefit of all favorable inferences. E. g., Wehrkamp v. Watkins Motor Lines, Inc., 436 S.W.2d 698 (Mo.1969); Russell v. Russell, 540 S.W.2d 626 (Mo.App.1976); Boyle v. Colonial Life Ins. Co., 525 S.W.2d 811 (Mo.App.1975). If appellant presented substantial evidence on the status of the roads, then the issue should have been submitted to the jury and it was reversible error to direct a verdict against appellant. Kaelin v. Nuelle, 537 S.W.2d 226 (Mo.App.1976).

Initially, we shall discuss a jurisdictional point raised by respondent. Respondent contends that the roads in question, even if public roads, are not “state highways” within the meaning of § 227.240(1), RSMo 1969 and therefore respondent cannot be charged with any relocation costs under subsection (2). Id. § 227.240(2). We believe, however, that the statute is applicable. The statute expressly provides that the location and removal of utility lines, including water lines, located within the right-of-way of any state highway shall be under the control and supervision of the state highway commission. Id., e. g., Public Water Supply Dist. No. 2 v. State Highway Comm’n, 244 S.W.2d 4, 5 (Mo.1951). The parts of the roads at issue and the water lines located therein fall clearly within the expanded right-of-way of state highway 30.

Furthermore, we note that respondent does not deny the authority of appellant to relocate the water lines or its authority to allocate the cost of relocation in general. It is appellant’s policy that facilities operated by a political subdivision other than a city shall be relocated at the expense of the owner when such facilities are located on a public right-of-way other than a state highway right-of-way. Division of Surveys and Plans, Missouri State Highway Comm’n, Policy, Procedure and Design Manual, Vol. II, Ch. VII, § 7-02.2(3); Policy on Division of Cost for Adjustment of Privately and Municipally Owned Utility Facilities Due to Highway Improvements § 3(a) (policy letter, defendant’s Exh. # 2). “The allocation of relocation costs is a matter committed solely to the discretion of the [state highway] commission, which has ‘complete discretion as a matter of policy as to whether or not it will use any of its funds for such costs and that matter is not subject, to judicial review.’ ” Public Water Supply Dist. No. 2 v. State Highway Comm’n, 472 S.W.2d 347, 351 (Mo.1971), citing State ex rel. State Highway Comm’n v. Weinstein, 322 S.W.2d 778, 785 (Mo.banc 1959); see also Jackson County Pub. Wat. Supp. Dist. No. 1 v. State Highway Comm’n, 365 S.W.2d 553, 558-9 (Mo.1963).

Respondent challenges the authority of appellant to allocate the costs of relocation against it because, in this case, the water lines were not located on a public right-of-way. The only issue on appeal is whether the roads in question are public roads or right-of-ways within the meaning of § 227.-240, RSMo 1969. For reversal appellant argues that the roads in question were public roads because there was a common law dedication of each road. Respondent denies that the roads were dedicated to public use.

The determination of the status of a public road or right-of-way in this context seems to be a question of first impression in Missouri. The other cases between the state highway commission and water utilities involve different issues and are distinguishable. Although based on the same facts as the present case, Public Water Supply Dist. No. 2 v. State Highway Comm’n, 472 S.W.2d 347 (Mo.1971), involved administrative law questions about the scope of a § 227.240 hearing and the availability of judicial review. In fact, the court did not reach the question of the water district’s liability for the cost of relocating its facilities from private property. Id. at 351.

In another case, State ex rel. State Highway Comm’n v. Weinstein, supra, the question was the type of hearing required to determine the necessity for the removal and relocation of water lines. Weinstein determined that an adjudicative hearing was required by the Administrative Procedure Act. Id. at 783. Similarly, St. Louis County Water Co. v. State Highway Comm’n, 386 S.W.2d 119 (Mo.1964), held that any decision to relocate water lines must be based on evidence adduced at the § 227.240 hearing and not on previously established policy.

In Jackson County Public Water Supply Dist. No. 1 v. State Highway Comm’n, 365 S.W.2d 553 (Mo.1963), the question presented was whether the statute would apply differently to a publicly owned utility than a privately owned utility. The court held that the public water supply district was governed by the statute. Id. at 557. In Public Water Supply Dist. No. 2 v. State Hwy. Comm’n, 244 S.W.2d 4 (Mo.1951), the water district contended that it was a “municipal corporation” with an absolute right to use the highways for its installations and, therefore, was not under an obligation to relocate its water lines at its expense at the direction of the highway commission. The court disagreed and, without defining the precise governmental status of the water district, found “[t]he district’s occupancy of the right of way, under the pleadings [to be] permissive and incidental to the primary and dominant purpose of highways and the public’s right in highways.” Id. at 7.

Appellant contends that there has been a common law dedication of each road. This assumes that a public road by dedication to public use is what will resolve the “public right-of-way” in the commission policy. Although our statutes provide a “comprehensive plan for the platting and approval of real estate subdivisions, and the dedication of land for streets and other public uses,” Ginter v. City of Webster Groves, 349 S.W.2d 895, 899 (Mo.1961); see §§ 445.010-.120, RSMo 1969; this statutory scheme does not operate to restrict the common law power of an owner to dedicate land to public use, e. g., City of St. Charles v. De Sherlia, 308 S.W.2d 456, 465 (Mo.App.1957). Furthermore, if an act of dedication fails to comply with the statutory scheme, the act may still be effective as a common law dedication, e. g., City of Caruthersville v. Huffman, 262 Mo. 367, 171 S.W. 323 (1914); City of Hardin v. Ferguson, 271 Mo. 410, 196 S.W. 746 (1911); State v. De Vail, 157 Mo.App. 587, 138 S.W. 667 (1911).

We do not, however, reach any conclusions about the statutory dedication of these roads because there is no evidence in the record about the ordinances, if any, of Jefferson County. See Playboy Club, Inc. v. Myers, 431 S.W.2d 228, 230 (Mo.1968) (court did not take judicial notice of city ordinances). In Hoechst v. Bangert, 440 S.W.2d 476 (Mo.1969), the dedication at issue did not comply with a St. Louis County ordinance which required the approval of any plat by the planning commission and the county council. The court, however, considered the validity of the dedication under common law principles. Id. at 478.

In Connell v. Jersey Realty & Investment Co., 352 Mo. 1122, 180 S.W.2d 49 (1944), the following elements were required to establish a common law dedication: (1) an unequivocal indication of owner’s intention to dedicate land to public use, (2) acceptance by the public a.nd (3) use by the public. Id. at 53. Formal acceptance by municipal or public act is not required. E. g., Minium v. Solel, 183 S.W. 1037, 1040 (Mo.1916). Acceptance may be demonstrated by use by the public and need not be for a specific period or for the statutory period under § 516.010, RSMo 1969. E. g., Hoechst v. Bangert, 440 S.W.2d 476, 479 (Mo.1969) (statutory period), citing Poage v. Oser, 6 S.W.2d 1009, 1011 (Mo.App.1928) (no definite period). From reading the cases, two elements appear to be necessary to establish a common law dedication: intention to dedicate and public use. Nowotny v. Ryan, 534 S.W.2d 559, 560 (Mo.App.1976).

The intention of the owner to set apart the land for the use of the public is the foundation of every dedication; that intention may be manifested in a subdivision plat filed in attempted compliance with the statute. City of St. Charles v. De Sherlia, supra. The dedicatory language for LaKenny Lane on the plat of Leicht’s Subdivision is “. . . shall be open to public use forever. . . . ” Main Drive was originally indicated on the plat of Oak Hill Subdivision. No lots were ever sold from Oak Hill and the property was replatted as Rainbow Terrace No. 2 Subdivision. Main Drive is described therein as “. . . de-singated (sic) to the public. . . . ” These are the kind of words commonly used in dedications. See, e. g., Marks v. Bettendorf, Inc., 337 S.W.2d 585, 593 (Mo.App.1960). The words used in the descriptions of LaKenny Lane and Main Drive clearly indicate an intention to dedicate the roads to public use.

The words used to describe Valley Del and Green Valley Drives in Sprock’s Fifth Subdivision are not as clear. Valley Del Drive is described as an easement for adjoining lot-owners to be used as “. . . a way of ingress and egress.” Green Valley Drive is dedicated “. to the use of the owners of the property fronting thereon. . . . ” Although similar language was construed to be a dedication to public use in City of St. Louis v. Clegg, 289 Mo. 321, 233 S.W. 1, 4 (1921), these words alone are not an unequivocal manifestation of an intention to dedicate. The required intention to dedicate may, however, be evidenced by acts of the owner, e. g., Nickel v. University City, 239 S.W.2d 519 (Mo.App.1951); State ex rel. McIntosh v. Haworth, 124 S.W.2d 653 (Mo.App.1939). For example, the sale of lots by reference to a subdivision plat has been held a common law dedication where the language in the plat was insufficient to constitute a statutory dedication, e. g., Prewitt v. Whittaker, 432 S.W.2d 240, 243 (Mo.1968); Weakley v. State Highway Comm’n, 364 S.W.2d 608, 612 (Mo.1963); Moseley v. Searcy, 363 S.W.2d 561, 563 (Mo.1962); Byam v. Kansas City Pub. Svc. Co., 328 Mo. 813, 41 S.W.2d 945, 949 (1931). The parties did stipulate that lots were sold to the public from each subdivision subsequent to the filing of the plats. In Weakley, although already manifested by the execution and acknowledgment of a written declaration to the public use, the court held that the intention to dedicate to public use was further shown by subsequent conveyances to purchasers of lots in the subdivision. 364 S.W.2d at 612.

We distinguish Smith v. City of Hollister, 241 Mo.App. 379, 238 S.W.2d 457 (1951), cited by respondent for the proposition that the mere platting of streets and selling of lots does not constitute a common law dedication. In Smith, the land was conveyed to subsequent purchasers according to the original subdivision plats as if the platted streets did not exist. The subsequent owners built homes, fences and other structures in the middle of the platted streets, which in fact were never built. The court held that although the subdivision plat constituted an offer to dedicate to public use, subsequent conveyance of the land before acceptance by the public was a valid withdrawal of the offer to dedicate. Id. at 463.

A common law dedication operates by estoppel, e. g., Gover v. Cleveland, 299 S.W.2d 239 (Mo.App.1957). “. . . [W]hen divestiture of [private] property in favor of the public is sought to be established in pais, the proof should be so convincing, full, persuasive and cogent as to leave no reasonable doubt of the existence of the owner’s consent or intent, and the acts relied upon must not be consistent with any construction other than that of a dedication. . . . ” McIntosh v. City of Joplin, 486 S.W.2d 287, 290 (Mo.App.1972) (citations omitted); Gunn v. City of Versailles, 330 S.W.2d 257 (Mo.App.1960). Even if the intention to dedicate Valley Del and Green Valley Drives had been clear and unequivocal, there is no evidence in the record of any public use of any of the roads in question. Cf. Hoechst v. Bangert, supra (evidence clearly showed public use); Moseley v. Searcy, 363 S.W.2d 561 (Mo.1962) (evidence of long-standing public use). In the present case the parties stipulated that no governmental employees or equipment or public funds had been used in the construction or maintenance of the roads. The declarations on the subdivision plats charge the maintenance of the roads to the subdivision residents. Furthermore, the evidence demonstrated that any public use of the streets would be rather limited due to the physical arrangement of the subdivisions. In Nowotny v. Ryan, 534 S.W.2d 559 (Mo.App.1976), the court held that there was no de facto dedication of two streets in a condominium development where the evidence showed the city had refused to maintain the streets and the public use of the streets was limited. Id. at 561.

In the absence of any proof of public use, appellant has failed to make a submis-sible case of common law dedication. The trial court did not err in sustaining respondent’s motion for a directed verdict.

Accordingly, judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.