*1 to that, plaintiff was entitled contends if Appellant thereon. tiff “a entitled to decree possession, defendant was judgment for title.and placed premises by on the improvements for the value good pre- his by faith heirs,” improvements made in Florence as 1939, R. and 1548, 1684 and Appellant in title. cites Secs. decessors 816. Westmeyer, App. 680, 687, 93 S. W. 116 Mo. Gallenkamp v. improve- admitted that appellant. do aid It is authorities not 1916, property while the the lessee in ments were constructed Smelting Refining 20-year Com- from the Louis lease St. under any by the lessee is no adverse claim asserted pany. There evidence good improvements were made in his heirs and no or evidence prior Subsequent improvements faith claim of title. to under 1938, January 31, is admitted delivery of the deed of it “in the heirs and others quitclaim National obtained deeds from ’’ right to deed to might question of National ’s order that be no there co-grantees. claims original Defendant under defendant and his plaintiff finding for on defendant’s original defendant. The 497, W. Gray Clements, 296 Mo. 246 S. proper. counterclaim was v. 944. 940, material, the conclusions assigned not in view of errors are
Other be considered. reached, and need not Osdol, Bradley CC-, concur. judgment affirmed. Van is Dalton, C., adopted foregoing opinion
PER CURIAM:—The judges concur. opinion All the as court. Express Corpora- a Teague, Co., Alice Louise White v.
James 38991. 182 S. Collier, Appellants. tion, and Carl W. No. 288. September Two, 1944. Division *2 Evrard, Arthur Reid, Reid & John M. Dallon and V. Good- Max B. Teague. Alice man, Jr., appellant Louise *4 ' appellants Harry Bock and L. B. Jones H. Baynes, F.B. Collier. and Carl Express Company *5 McSaney respondent.
Ward & and Sal S. Beeves *7 suit in WESTHUES,. Respondent White filed this the C. against County appellants Pemiscot Circuit Alice Louise Court Plaza Teague, Express Company, Corporation, Carl a Collier alleged death damages recover for the of his wife who it was met negligence death-through appellants. the ease trans her of The was . A change county, on of trial ferred venue to Dunklin Missouri $5,000. plaintiff appeal in An resulted a verdict in the sum of was judgment Springfield Appeals. taken from to the Court of That the judges judgment affirmed of the court but one dissented the controlling majority opinion in conflict with deemed the to be de of The case was here for cisions this court. therefore certified de appeals reported of court of .in 177 opinion termination. The the dissent, dissenting per W. 517. The reason for the as was opinion, that the evidence was deemed to be to sustain insufficient against Express Company. a verdict the Plaza Carl Collier and The jury against was a case submitted to as these defendants under the humanitarian doctrine. opinion appeals lengthy of the of is rather
-The court facts points by there set forth in detail. A number of are were briefed only they appellants. briefly We refer to some of these since will fully correctly were considered and by determined ap- tbe court of peals. give We will question tbe sufficiency as evidence against Express Collier and the Plaza Company particular considera- Respondent’s tion. wife her lost as result life of a collision car by Teague a driven defendant in which she riding was as a guest and a trailer truck Express owned Company and p. by appellant driven Collier. The collision occurred about 7:30 m:., September 1941, county in Pemiscot highway at the intersection of 61 and being- route “U”. Plaza truck was driven north on highway Teague 61. being car was driven west on “U”. route dark, It roadways was the weather fair, surrounding dry and the territory It Teague level. was that conceded the car driven Miss in respondent’s which riding traveling was speed wife was at a per about miles hour fifty just or and that more it struck trailer upon resting. rear of the truck wheels which trailer Teague Miss testified highway she did not at know was a there point intersecting “U”; with acquainted route that she was not *8 roadway with the and did not see the truck until of the the moment collision; speed the that of her ear was prior not cheeked collision; warning sign that she did a stop sign not notice nor a highway on ap- located route “U” near 61. Under that evidence pellant negligence Teague guilty was a However, of as matter of law. White, deceased, guest Teague a negligence Mrs. the was of and the imputed cannot to it be her. There was no contention made that should be. question the judges appeals
The on which the of court of agree sufficiency could justify not was the of the to the sub evidence against Plaza mission of ease under humanitarian the the doctrine the agent. agent Company driver, Collier, its that testified lights Teague he saw car it the intersection approached the as collision; it a that he was point when was over half mile from the of thirty-five hour; not driving speed per at a of that he did about miles a after speed sound horn or the of his truck until the collision. slacken saw, jury on that if Collier theory The case was submitted to the the degree or by highest could have or the exercise of the of seen care Teague in a occupants perilous the of car discovered that the’ were collision, position obliviousness, averted the of in time to have because earnestly justified. insisted plaintiff then a for was It is verdict wholly Company the evidence appellants and the Plaza that Collier shall examine the justify submission. We such a failed to point. approached truck the intersection on this As evidence the highway west of stopped a being ear driven on route “U” east car The driver of this pass to intersection. let the truck over the he saw: what plaintiff. his evidence as to testified Note The car seem truck. didn’t I car ran into saw, what “Well, intersection of entering any me check to to make before down slow speed. its It didn’t cut highways. It didn’t seem to two thirty-five traveling around to it was truck seemed me at all. traveling be- automobile was looking at it. The just hour, miles an it know- but not say, just looking at forty-five fifty, I would or tween these When judgment. I couldn’t be exact. my ing. That is best right behind the parked was together, my car vehicles came two in about would be Yes, that of the road. sign on west side stop twenty feet.” fifteen or its slacken Company didn’t truck seem to Express “The signals any I see didn’t any before it intersection. speed reached that change speed rate of gave. any I It did not its
it didn’t hear either. any kind. The Chevrolet gave signals I It no could observe. ’’ any give any signals kind, either. did not was as follows: of the collision Appellant version Collier’s Teague? A. That “Q. by a being And driven Miss was it driver. I tell who was the they was the couldn’t who said driver. any signal. give me a the car did not time The driver of at No, way? A. by sounding other “Q. horn, any or Either they as speed their They or slacken sir. did not ever slow down an traveling thirty-five miles I intersection. approached my No, not blow sir, I did approached hour as I the intersection. until the collision.” apply my horn. I did not brakes after “ Q. you coming, a and were Then for about -mile could this ear see you judge speed of it? A. No, able sir.”
‘‘ Q. you say going you got in a And how it was when fast would just position you judge? judge I that until where could A. couldn’t me, practically top judge I before it struck me. It was on *9 impact watching impact and I the and all. was this car even before watching coming was the from the other direction. one one coming pulled stopped. and already up from the other direction had Yes, sir, lights stopped. had its I that had it on and could see it “ Q. any alarm nothing you cause ? So there about that to ear was pulled A. Not unless he out in front of me.
“Q. pro- safely you could parked, You knew that it was and that was No, as far it was A. no car down there sir, ceed as concerned? safely parked.
“Q. safely parked; I No didn’t understand. A. car down there they get right up right you on you, start across in front of when Yes, top sir, watching car, of them. I was too. the ‘‘ coming Q. you your from the And in car did abandon interest the A. east, Teague your watching ear, with car to the west? the the Teague Teague car No, car, sir. I to the continued watch too. 257 up stop. not drive sight I Teague did lost got the ear when I behind those and that station, trees filling and the house. “Q. only So for the short you distance sight there lost of it while it ivas behind the trees and the filling station, in the southeast corner of the intersection ? A. After it filling came from behind the station ’’ and trees I was again. able to see it No, sir, I never Teague looked at any more, ear because “A. they could see me coming, I could see them. I looked across at car, the other Teague and back car, at the that time they were right into me. “Q. you Then your when gaze directed Teague from the car to look at the car that was over to the west of highway, was the Teague going car fast? A. I looking right couldn’t tell. I was straight practically it, I at when saw it. I couldn’t detect whether it slowing was down or impression they gave not. The they me was knew never that there, road was nothing. My never slowed down or impression last Teague of the ear they before the was that crash slowing were not put down. Then I my just on I got brakes as to the intersection; I sitting was in intersection, practically. I didn’t put my got on brakes until I I intersection, practically sitting in the intersection.” appellant
As we see it justifies Collier’s evidence the inference that danger, sensed yet, under his own .he evidence and the evidence of parked driver car, speed slackened, of the truck was not nor give any signal he anything oil-coming or do did to avert the collision. It justified seems to fully us the evidence the submission jury. the case to a Collier stopped, testified that could have he the truck within a seventy distance of A feet. slacken- eighty mere ing of spéed may approached truck as he the intersection well have avoided the collision.
In each ease dissenting entirely cited in opinion the facts were different, particularly as to from which an the evidence inference could be drawn charged the party negligence with have could danger discovered the injury. in time to have averted the The eases Co., are, cited in the dissenting opinion Banks & 302 v. Mo. Morris 254, 257 482, S. W. l. c. Knorp 484 and v. Thompson, 44, 352 Mo. 175 (2d) 889, S. W. 899, l. c. etc. A number of cases relied on appellants are: McBride, 637; Bashkow v. (2d) 177 S. W. Krause v. Pitcairn, 165 670, (correct S. W. l. citation, 339, c. 350 167 Mo. (2d) 74); Lotta City Co., W. Kansas Public S. W. v. Service 117 (2d) 296, 301, l. 743; Ziegelmeier c. & Mo. East St. Louis v. Ry. Co., Suburban (2d) 1027, Mo. 51 S. W. c. 1029. We l. *10 nothing ruling find in these cases bur case. The contrary to in this justified in evidence this case and an inference that Collier saw Teague realized that the driver of the car presence was oblivious of the 258 in have averted approaching the truck the intersection time
of to. against point appellants. be ruled collision. The must the fully and reviewed points discussed Other relied on were briefly. them appeals and we will review opinion of the court of in the attorneys for requiring urged the erred in the It is that trial court they rep liability were give to the names of the insurers appellants Later the hearing jury. resenting. was of the This done out any jurors any if had connection prospective one of them were asked procedure This not constitute any with of named insurers. did these Wack appeals of ruled. The cited court so See error. cases the 28; Hatton Schoenberg Mfg. 197, (2d) 331 53 W. Co., F. Mo. S. v. E. 94; 53 W. Sidman, (2d) 91, l. Chase, 169 c. v. S. v. S. W. Jenkins given 21, question 22. the defendants were l. c. 'Another arose when challenges. They reported making jury purpose list of three the for the challenges to be made. they agree on the to the that could not court give not Teague complained the court would Defendant because objection of juror the right the one over her the to strike name of if The defendants that defendants. trial court informed the other they the the agree instructed call first could the clerk would be to not the was correct because procedure twelve on the list. This names 720, A., R. must defendants, by (1939), Mo. S. virtue of sec. R. S. Mo. Co., challenges in v. Louis & S. R. join the made. See Clark St. App. 14 Mo. 583, l. 396; Co., v. Mo. R. (2), W. c. 588 Mo. Hunt S. 160, l. c. 164. within six months petition
It is claimed was not filed that the right file had a to plaintiff’s and within "which therefore time he injury expired. The suit as husband the had of deceased this 20, 1942. filed March September 20, on 1941. Suit was occurred 655, time see computation That within six As of sec. was months. to 175-178; in notes (1939), S. Mo. R. and eases cited A., R. Mo. (2d)W. Thompson Exchange Bank, v. 333 Mo. 62 S. Farmers’ 803, l. (2-6). c. 806 given “9-D”
Appellant Teague complained instruction of jury in request appellants. It informed at the of the other suddenly another, was one, through negligence substance if injury, instantly avoid an to placed emergency compelled in to act acted, a guilty negligence he could not if made choice he be This wisest. though may even the choice not have been made bearing Teague and had way in no appellant instruction no affected her interest any to prejudicial on issue presented her. was not It complain. position therefore she was in no Teague’s request, gave appellant an instruction, 'court at intersection jury Teague reached informing if the car right had the Teague car about time then the same as the truck with court way. jury After this instruction was read taken. jury why drew it and action informed the this *11 given instruction should not have been for apparent two reasons: First, undisputed under evidence the truck reached the center roadway Teague car; second, sign before the there was a stop against traffic on sign route and stop against “U” no such traffic on highway 61. The action of court in withdrawing the instruction proper.
Appellants, Express Company Collier, assigned rulings error to by made the trial permitting court certain remarks to be plaintiff by made counsel for also counsel Teague during argument jury. arguments These and the comment of the court be in opinion will found set out in detail appeals. court of (2d) 517, 177 W. l. See c. 528. It be will objected found that the remarks of counsel not of a to were serious nature ruling and the could be held to be the court not reversible error because the trial court has some discretion in such Again matters. it will found be the trial court sustained major portion appellants’ .objections. Finding judgment no Bohling reversible error affirmed. is
n Barrett, CC., concur.
PER C., foregoing opinion CURIAM: —The Westhubs adopted opinion as the judges All of the court. concur. County Appellant, v. Farmers Brandt,
C. H. Bank of Chariton et 39006. 182 al. No. S. W. 281. September 5, One,
Division 1944.