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mo/10008877.json

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+"{\"id\": \"10008877\", \"name\": \"Patrick L. MELTON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent\", \"name_abbreviation\": \"Melton v. State\", \"decision_date\": \"1996-06-11\", \"docket_number\": \"No. 68833\", \"first_page\": \"391\", \"last_page\": \"394\", \"citations\": \"927 S.W.2d 391\", \"volume\": \"927\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T22:26:40.583205+00:00\", \"provenance\": \"CAP\", \"judges\": \"KAROHL and GRIMM, JJ., concur.\", \"parties\": \"Patrick L. MELTON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.\", \"head_matter\": \"Patrick L. MELTON, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.\\nNo. 68833.\\nMissouri Court of Appeals, Eastern District, Division One.\\nJune 11, 1996.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied July 24,1996.\\nApplication to Transfer Denied Sept. 17,1996.\\nDave Hemingway, St. Louis, for appellant.\\nJeremiah W. (Jay) Nixon, Atty. Gen., Fernando Bermudez, Asst. Atty. Gen., Jefferson City, for respondent.\", \"word_count\": \"1540\", \"char_count\": \"9435\", \"text\": \"REINHARD, Presiding Judge.\\nMovant appeals the denial, without an evi-dentiary hearing, of his Rule 24.035 motion for post-conviction relief. We affirm.\\nOn June 9, 1993, movant entered an Alford plea to one count of second degree robbery, \\u00a7 569.030, RSMo 1986, and pled guilty to two counts of forgery, \\u00a7 570.090, RSMo 1986. Movant admitted that on February 13 and 14, 1991, he forged two checks belonging to Forsyth School. The court sentenced him in accordance with the state's recommendation to concurrent prison terms of nine years on the second degree robbery count and seven years each on the two forgery counts. The court then suspended execution of the sentences and placed movant on probation for five years.\\nOn February 18, 1994, movant admitted two probation violations. The court revoked his probation, executed his sentence, and imposed a 120 day shock program. On May 27, 1994, the court suspended execution of the sentence and placed movant on probation for three years. On October 14, 1994, movant again admitted violating his probation, and the court executed the original sentences imposed.\\nOur review is limited to determining whether the findings, conclusions and judgment of the motion court are clearly erroneous. Rule 24.035(j); Vernor v. State, 894 S.W.2d 209, 210 (Mo.App. E.D.1995). Such findings and conclusions are clearly erroneous only if a review of the entire record leaves this court with a definite and firm impression that a mistake has been made. Vernor, 894 S.W.2d at 210. In order to be entitled to an evidentiary hearing, movant must cite facts, not conclusions, which, if true, would entitle him to relief; the factual allegations must not be refuted by the record; and the matters complained of must prejudice movant. Id. When a movant pleads guilty, claims of ineffective assistance of counsel are only relevant as they affect the voluntariness and understanding with which the plea was made. Van Ralston v. State, 824 S.W.2d 75, 78 (Mo.App.1991).\\nOn appeal, movant asserts the motion court \\\"clearly erred in denying a hearing on counsel's failure to interview witnesses who would exonerate [movant] of the forgeries\\\" and \\\"similarly erred in refusing to hear evidence of counsel's failure to pursue expert handwriting analysis by which to defend the forgery charges.... \\\"\\nTo demonstrate he was prejudiced by counsel's failure to investigate, a movant must show there is a reasonable probability the discovery of the evidence would have caused him to change his plea. Stevens v. State, 770 S.W.2d 496, 497 (Mo.App.1989). To establish counsel's ineffectiveness for failing to call a witness, a movant must prove the witness could have been located through reasonable investigation, the witness would have testified if called, and the witness's testimony would have provided a viable defense. Eddes v. State, 776 S.W.2d 463, 464-65 (Mo.App.1989).\\nMovant's post-conviction motion alleged:\\nTrial counsel was ineffective by failing to investigate witnesses Jerry Johnson, Andre Gipson, and Francine Macully, each of whom would have exonerated movant from any guilt in his cases.\\nMovant informed trial counsel of the existence of Johnson, Gipson, and Macully. Macully would have testified that she observed Jerry Johnson give movant a check that Johnson claimed was rightfully his, in exchange for automobile repairs. Macully also would testify that she observed Andre Gipson wrongfully sign and pass a check using movant's name as the payee and signing the check as the purported payee....\\n\\u215c * \\u215c \\u215d \\u215c: *\\nCounsel was ineffective for failing to secure a handwriting expert to compare signatures on the forged checks . after movant informed counsel of the persons who had actually forged the checks.\\nBoth of movant's allegations relate to evidence which would allegedly exonerate him of the forgery charges, but at the guilty plea hearing, movant admitted that he had committed both counts of forgery:\\n[THE COURT:] And in the forgery case you are entering a plea of guilty because you are guilty; is that correct?\\n[MOVANT:] Yes.\\nQ And on February 13, 1991, at 9965 Lewis & Clark Boulevard in St. Louis County did you use a check of Forsyth School and did you forge that cheek?\\nA Yes, sir.\\nQ And on February 14, the next day, at the same place, did you forge another check of Forsyth School?\\nA Yes, sir.\\nMovant also testified that he was not threatened or coerced to plead guilty or promised anything in return for his plea. He stated that he understood his rights, the effect of his waiver of those rights, and the consequences of his guilty plea, and he asserted that counsel had \\\"been good\\\" and done everything that movant asked him to do. See Eberspacher v. State, 915 S.W.2d 384, 386-87 (Mo.App. W.D.1996). He specifically stated that he understood that \\\"if [he] wanted any witnesses at either trial the Court would issue subpoenas for [the] witnesses.\\\"\\nThe motion court ruled that movant's plea was voluntary. At no time during the plea hearing did movant contend that his plea was anything but voluntary, and movant does not assert that his attorney told him to lie at the plea hearing. Where, as here, the guilty plea is both counselled and voluntary, claims of failure to investigate factual issues are \\\"subsumed and rendered moot by [the] guilty plea.\\\" Hagan v. State, 836 S.W.2d 459, 464 (Mo. banc 1992).\\nIn Boxx v. State, 857 S.W.2d 425 (Mo.App.E.D.1993), the movant filed a Rule 24.035 motion .and alleged that his attorney was ineffective for failing to subpoena alibi witnesses. The motion court held an evidentia-ry hearing on other allegations contained in the motion but refused to allow testimony from the witnesses, which was \\\"tantamount to a denial of an evidentiary hearing on that issue.\\\" Id. at 427.\\nThe movant argued that the motion court erred in excluding the testimony of the witnesses, and our court stated:\\nDefendant's claim of ineffective assistance of counsel for failure of his trial counsel to subpoena witnesses is refuted by the record. Defendant admitted the crime under oath. Therefore, testimony of witnesses who state he did not commit the crime would be of little benefit. Also, at the time of the plea hearing, Defendant would have known his trial counsel failed to subpoena his witnesses. Yet, he stated he was satisfied with his trial counsel's services. He also stated no one was forcing him to plead guilty or promising him anything in return for his plea. Defendant's belated claim of ineffective assistance of counsel is waived.\\nId. See also Trehan v. State, 872 S.W.2d 156 (Mo.App. S.D.1994). Thus, the motion court did not clearly err in denying movant's post-conviction motion without an evidentiary hearing.\\nWe make this determination despite mov-ant's reliance on State v. Driver, 912 S.W.2d 52 (Mo. banc 1995), the most recent Missouri Supreme Court pronouncement on Rule 29.07(b)(4) inquiries. In Driver, the court denied movant's Rule 29.15 motion without an evidentiary hearing. The Missouri Supreme Court held that an evidentiary hearing was required because the Rule 29.07(b)(4) inquiry was not specific enough to refute movant's allegations. Driver, 912 S.W.2d at 56.\\nHere, the Rule 29.07(b)(4) inquiry was similar to that of Driver ; thus, movant contends that an evidentiary hearing is required. However, unlike Driver, movant pled guilty, and at the guilty plea hearing, he admitted that he committed the two forgeries and further assured the court that his plea was voluntary during the Rule 24.02(b) and (c) inquiries. The court properly considered the admission of guilt and the voluntariness of the plea in denying movant's motion without an evidentiary hearing. The Driver opinion states:\\nAs a consequence of the thoroughness of the questioning conducted in most guilty plea proceedings, significant numbers of Rule 24.035 motions are appropriately overruled without evidentiary hearing because the inquiry conducted by the trial court upon taking the guilty plea elicits responses that conclusively refute allegations in a later filed Rule 24.035 motion.\\nDriver, 912 S.W.2d at 56.\\nThe holding here is not inconsistent with Driver.\\nJudgment affirmed.\\nKAROHL and GRIMM, JJ., concur.\\n. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).\\n. In Driver, the trial judge questioned the defendant about her satisfaction with counsel.\\nQ: At this time I want to ask you if you have any complaints against your attorney, the Public Defender's office in this case?\\nA: No, sir.\\nQ: You think they did you a good job?\\nA: Yes, I do.\\nQ: Did they do anything that you didn't want them to do?\\nA: No.\\nQ: Did they do everything you wanted them to do?\\nA: Yes, sir.\\n. At the guilty plea hearing, the following exchanges occurred:\\nTHE COURT: . Do you know of any way that [defense counsel] has not done a good job as your attorney in these cases?\\n[MOVANT]: No. He's been good.\\nTHE COURT: Is there anything you have asked him to do in either case that he has failed or refused to do?\\n[MOVANT]: No.\"}"

mo/10009981.json

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+"{\"id\": \"10009981\", \"name\": \"Mary TOPPINS, Plaintiff/Appellant, v. Mildred MILLER, Defendant/Respondent\", \"name_abbreviation\": \"Toppins v. Miller\", \"decision_date\": \"1994-11-22\", \"docket_number\": \"No. 64290\", \"first_page\": \"473\", \"last_page\": \"475\", \"citations\": \"891 S.W.2d 473\", \"volume\": \"891\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:51:08.795272+00:00\", \"provenance\": \"CAP\", \"judges\": \"CRANDALL and DOWD, JJ., concur.\", \"parties\": \"Mary TOPPINS, Plaintiff/Appellant, v. Mildred MILLER, Defendant/Respondent.\", \"head_matter\": \"Mary TOPPINS, Plaintiff/Appellant, v. Mildred MILLER, Defendant/Respondent.\\nNo. 64290.\\nMissouri Court of Appeals, Eastern District, Division Three.\\nNov. 22, 1994.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied Jan. 3, 1995.\\nApplication to Transfer Denied Feb. 21, 1995.\\nRobert H. Pedroli, Robert H. Pedroli & Associates, St. Louis, for appellant.\\nJohn F. Cooney, Evans & Dixon, St. Louis, for respondent.\", \"word_count\": \"1190\", \"char_count\": \"7249\", \"text\": \"CRANE, Presiding Judge.\\nPlaintiff Mary Toppins appeals from a judgment entered on a jury verdict for defendant Mildred Miller in a negligence action. She asserts the trial court erred in failing to give MAI 34.05 and in sustaining Miller's objection to evidence of Toppins' pretrial settlement with a third party. We affirm.\\nOn May 16, 1990, Toppins was injured while riding as a passenger in an automobile which was simultaneously hit by two other automobiles, one driven by Miller and another driven by Terry Black. Toppins brought a negligence action for damages against both Miller and Black. Prior to trial, Black settled for $25,000 and was dismissed by stipulation. In May, 1994 Toppins' claim against Miller was tried before a jury. At trial Toppins' attorney injected the issue of th\\u00e9 settlement with Black during the opening statement, when Toppins' attorney stated:\\n[Y]ou are going to hear a lot said about Terry Black. Terry Black was a party in this suit and he's no longer a party in this suit. He has been settled out of this case and settlement \\u2014 the evidence will be that settlement was for $25,000.\\nToppins' attorney also told the jury, \\\"we are going to ask you for a verdict at the close of this case well in excess of $25,000 because until she gets $25,000 she doesn't get a penny because of the first $25,000 settlement.\\\" Miller's attorney objected and moved for mistrial. The trial court sustained the objection, but denied the motion for a mistrial.\\nBefore calling her first witness, Toppins advised the court that she wanted to introduce evidence of the prior settlement with Black. The trial court sustained Miller's objection to the admission of this evidence.\\nAt the jury instruction conference, Toppins requested MAI 34.05 [1991 Revision], The court denied the instruction on the grounds that the prior settlement with Black was not relevant to either Miller's negligence or the amount of Toppins' damages.\\nThe jury returned a verdict in favor of Miller. Toppins appeals.\\nFor her first point Toppins asserts the trial court erred in refusing to submit MAI 34.05. She argues the instruction was required because, as a result of Toppins' opening statement, the jury had knowledge of the prior settlement with Terry Black. She contends this caused the jury to be misled and confused about the legal effect of the prior settlement. Specifically she argues the jury could have been misled in the following three ways:\\nFirst, the jury could have believed that the other defendant was dismissed by the court before trial and recovery was not allowed against him. In such a case the jury could have believed that if the court refused recovery against a more at fault party, then it would be unjust to allow recovery against this defendant.\\nSecond, the jury could have believed that the plaintiff may have been entitled to further future recovery against Terry Black. Since plaintiffs counsel was prohibited from exploring the subject of the prior settlement, the jurors had no information regarding the release and covenant not to sue which is part and parcel of any such settlement agreement.\\nFinally, the jury could have believed that total agreed upon damages had already been recovered from Terry Black and that plaintiff was seeking a \\\"double recovery.\\\"\\nMAI 34.05 provides:\\nIn determining the [total] amount of plaintiffs damages you are not to consider any evidence of prior payment [to] [on behalf of) plaintiff. The judge will consider any such payment and make an adjustment if required by law.\\nMAI 34.05 shall be given \\\"upon request of any party\\\" as an addendum to the appropriate damage instruction, \\\"if the jury has knowledge, from the evidence or a trial incident, of an advance payment, a partial settlement, or a collateral source payment\\\". MAI 34.05 [1991 Revision]. The instruction \\\"is intended . to clarify what the jury is to consider in assessing damages.\\\" Committee Comment (1983 New). Toppins argues that under the terms of MAI 34.05, the instruction must be submitted at the request of either party, if the jury has knowledge of a prior settlement, even if that information has been disclosed by the requesting party.\\nWe do not need to reach the merits of whether MAI 34.05 should or should not have been given. Even if the trial court erred in failing to give MAI 34.05, the error does not require reversal unless it is prejudicial. The prejudicial effect of instructional error is to be judicially determined. Graham v. Goodman, 850 S.W.2d 351, 355 (Mo. banc 1993); Rule 70.02(c).\\nIn this case the MAI 34.05 instructs the jury that it may not consider certain evidence in determining the amount of damages. The jury rendered a verdict in Miller's favor, thus finding Toppins had not proved negligence or damages. The jury did not assess damages. MAI 34.05 would have only instructed the jury it could not have considered the $25,000 payment in assessing damages. It would not have cleared up any potential juror confusion or speculation concerning whether the court had dismissed Black, whether Toppins could have recovered additional sums against Black, or whether Toppins had been fully compensated by Black. The failure to submit MAI 34.05 was not prejudicial. Point one is denied.\\nFor her second point Toppins asserts the trial court erred in refusing to admit Top-pins' prior settlement with Terry Black into evidence. She argues that this evidence is necessary to dispel juror confusion with respect to the absence of logical codefendants.\\nWe give substantial deference to the trial court's evidentiary rulings and we will not disturb those rulings absent a showing of an abuse of discretion. Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991). \\\"Relevancy is the relationship between the offered fact and the fact in issue to such a degree that the existence of the offered fact logically renders probable the existence of the fact in issue.\\\" McIlroy v. Hamilton, 539 S.W.2d 669, 676 (Mo.App.1976).\\nEvidence of a prior settlement with a joint tortfeasor is not relevant to the determination of the remaining defendant's negligence. Neither the fact that a joint tortfea-sor settled to avoid trial nor the details of that settlement tend to make the negligence of the remaining defendant more or less probable.\\nFurther, even if the jury had assessed damages, evidence of the amount Toppins had received from Black would not be relevant to establishing the amount of damages attributable to Miller. In that situation the court, not the jury, would offset the damage award by the amount of partial settlement with a joint tortfeasor. See MAI 1.06 [1983 New] and Committee Comments.\\nThe trial court did not abuse its discretion in sustaining Miller's objection to this evidence. Point two is denied.\\nThe judgment of the trial court is affirmed.\\nCRANDALL and DOWD, JJ., concur.\"}"

mo/10010084.json

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+"{\"id\": \"10010084\", \"name\": \"Ernest CARUTHERS, Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"Caruthers v. State\", \"decision_date\": \"1994-11-22\", \"docket_number\": \"No. 65685\", \"first_page\": \"476\", \"last_page\": \"476\", \"citations\": \"891 S.W.2d 476\", \"volume\": \"891\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:51:08.795272+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GRIMM, C.J., and CARL R. GAERTNER, and REINHARD, JJ.\", \"parties\": \"Ernest CARUTHERS, Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"Ernest CARUTHERS, Appellant, v. STATE of Missouri, Respondent.\\nNo. 65685.\\nMissouri Court of Appeals, Eastern District, Division Five.\\nNov. 22, 1994.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied Jan. 3, 1995.\\nApplication to Transfer Denied Feb. 21, 1995.\\nDavid C. Hemingway, Asst. Public Defender, St. Louis, for appellant.\\nJeremiah W. (Jay) Nixon, Atty. Gen., John R. Watson, Asst. Atty. Gen., Jefferson City, for respondent.\\nBefore GRIMM, C.J., and CARL R. GAERTNER, and REINHARD, JJ.\", \"word_count\": \"148\", \"char_count\": \"961\", \"text\": \"ORDER\\nPER CURIAM.\\nMovant appeals the denial of his Rule 24.035 motion for postconviction relief which was denied without an evidentiary hearing. We affirm. The findings and conclusions of the motion court are not clearly erroneous, and an extended opinion would have no prec-edential value. The parties have been furnished with a memorandum for them information only, setting forth the reasons for this order affirming the judgment pursuant to Rule 84.16(b).\"}"

mo/10013047.json

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+"{\"id\": \"10013047\", \"name\": \"LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF the CITY OF ST. LOUIS, Plaintiff/Respondent, v. UNITED STATES STEEL and Carnegie Pension Fund, Defendant/Respondent, and Allright Missouri, Inc., Defendant/Appellant\", \"name_abbreviation\": \"Land Clearance for Redevelopment Authority of City of St. Louis v. United States Steel\", \"decision_date\": \"1995-12-12\", \"docket_number\": \"No. 67555\", \"first_page\": \"685\", \"last_page\": \"689\", \"citations\": \"911 S.W.2d 685\", \"volume\": \"911\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T01:10:19.069197+00:00\", \"provenance\": \"CAP\", \"judges\": \"GARY M. GAERTNER and RHODES RUSSELL, JJ., concur.\", \"parties\": \"LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF the CITY OF ST. LOUIS, Plaintiff/Respondent, v. UNITED STATES STEEL and Carnegie Pension Fund, Defendant/Respondent, and Allright Missouri, Inc., Defendant/Appellant.\", \"head_matter\": \"LAND CLEARANCE FOR REDEVELOPMENT AUTHORITY OF the CITY OF ST. LOUIS, Plaintiff/Respondent, v. UNITED STATES STEEL and Carnegie Pension Fund, Defendant/Respondent, and Allright Missouri, Inc., Defendant/Appellant.\\nNo. 67555.\\nMissouri Court of Appeals, Eastern District, Division Three.\\nDec. 12, 1995.\\nDavid T. Hamilton, Saale, Bailey & Hamilton, L.C., St. Peters, John J. Temporiti, Gallop, Johnson & Neuman, L.C., Clayton, for Appellant Allright Missouri, Inc.\\nSarah A. Siegel, Suelthaus & Walsh, P.C., St. Louis, for Respondent Land Clearance for Redevelopment Authority of City of St. Louis.\\nDonald U. Beimdiek, Andrew B. Mayfield, Armstrong, Teasdale, Schlafly & Davis, St. Louis, for Defendant/Respondent U.S. Steel and Carnegie Pension Fund.\", \"word_count\": \"1644\", \"char_count\": \"10080\", \"text\": \"SMITH, Presiding Judge.\\nAllright Missouri, Inc. appeals from the trial court action in refusing to award it attorney's fees and costs from plaintiff, Land Clearance for Redevelopment Authority (LCRA), after plaintiff abandoned a condemnation of land in which Allright had a leasehold interest.\\nThe condemnation involved here was that which prompted the prohibition case of State ex rel. United States Steel v. Koehr, 811 S.W.2d 385 (Mo.banc 1991), and the reader is directed to that case for the factual background of this litigation. It is sufficient to say that a challenge was made to the authority of plaintiff to condemn this parcel of land, a parking lot, on the basis that it was not a taking for public use. That contention was advanced because of a letter agreement between plaintiff and Eighth and Locust Associates (Associates) the private redeveloper of the Mayfair Hotel. The agreement provided for the acquisition of the land by plaintiff through eminent domain, to be conveyed to Associates for use by Associates as a parking lot for the Mayfair Hotel until such time as it was economically feasible to expand the Mayfair onto the parcel. Associates agreed to reimburse plaintiff for the cost of acquiring the parcel and retained the right to direct plaintiff to abandon the condemnation at any time during the process.\\nThe Supreme Court held that when the ordinance was passed by the Board of Aider-men of the City blighting the area, which included the parking lot parcel, that established the public use of the parcel in any subsequent acquisition of the parcel by plaintiff. This precluded the Pension Fund from challenging the condemnation on the basis that it was a taking for a private use.\\nAt the time the Koehr writ was requested, Allright was a party to the condemnation. Under its agreement with the Pension Fund, upon termination of the lease agreement, Allright and Pension Fund would divide the sale proceeds pursuant to a formula. The writ proceeding was brought by the Pension Fund and Allright was not joined as a party thereto.\\nIn Nifong v. Texas Empire Pipe Line Co., 225 Mo.App. 1134, 40 S.W.2d 522 (1931) [1] the court stated the following rule:\\n[I]t has been established in this state, since the decision of the Supreme Court in the case of North Missouri R.Co. v. Lackland, 25 Mo. 515 [(1857)], that a private or quasi public corporation is liable for costs and expenses suffered by the landowner in a condemnation suit that has been dismissed or discontinued.\\nAllright makes no contention that a public corporation or agency has a similar liability as to costs and expenses. See State ex rel. Missouri Highway and Transportation Commission v. Turner, 857 S.W.2d 293 (Mo.App.1993) [7]. Plaintiff is a public corporation. Sees. 99.330, 99.420 RSMo 1994. It is authorized to exercise public and essential governmental functions including the power of eminent domain. Secs. 99.420(4), 99.460.\\nIt is Allright's position that plaintiff gave up its public agency status by vesting in Associates certain powers including the power to abandon the taking. By placing that power in a private party, Allright contends that plaintiff should be subject to the same rules that apply to a private or quasi public corporation with the power to condemn.\\nIn Koehr the court stated \\\"The letter agreement between LCRA and Associates did not amount to the grant of eminent domain power to a private entity.\\\" Plaintiff contends that statement constitutes a factual determination which Allright is collaterally estopped to deny. We agree.\\nIn determining the applicability of collateral estoppel four factors are to be considered, i.e. (1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in a prior suit. Oates v. Safeco Insurance Company of America, 583 S.W.2d 713 (Mo.banc 1979).\\nAllright contends that the first factor is not met here. It may be acknowledged that the Supreme Court in Koehr did not explicitly find that plaintiff acted in its capacity as a public agency when drafting the letter agreement. Specific findings are not required to have the effect of precluding relitigation of an issue. Dehner v. City of St. Louis, 688 S.W.2d 15 (Mo.App.1985) [2, 3]. A finding that is implicit in a judgment can also have this effect. Id.\\nThe Koehr case necessarily and implicitly found that the terms of the letter agreement were proper and plaintiff did not overstep its statutory authority as a public corporation in entering into the agreement. Every legislative requirement must be complied with for the proper exercise of eminent domain powers. See City of St. Louis v. Smith, 325 Mo. 471, 30 S.W.2d 729 (1930) [1], The statutes do not give plaintiff the power to confer eminent domain power upon a private entity. Plaintiff was the entity required to make the decision to condemn. Koehr, supra at [6]. Plaintiff is not entitled to acquire property for a private use. The Koehr court could not have upheld the legitimacy of the condemnation if plaintiff was acting outside of its statutory authority. The letter agreement was before the court and it based its ruling on the materials before it. Its finding that the condemnation was proper was necessarily a finding that plaintiff had not exceeded its statutory authority and that it was properly acting in its public corporation status. The issue in Koehr is identical to the issue before us.\\nThere is no dispute that the prior adjudication resulted in a judgment on the merits. We turn to privity. Whether parties are in privity for collateral estoppel purposes depends mostly on their relationship to the subject matter of the litigation. A privy, within the doctrine of collateral estoppel, means one so related by identity of interest with the party to the judgment that such party represented the same legal right. Persons are in privity for collateral estoppel purposes when the interests of the nonparty are so closely related to the interest of the party that the nonparty can fairly be considered to have had his day in court on the issue to which the collateral estoppel is applied. Moore v. Swayne-Hunter Farms, Inc., 841 S.W.2d 308 (Mo.App.1992) [2-6]. On the issue of the legality and propriety of the condemnation, Allright's interests as a leaseholder in the Koehr litigation were identical to those of the Pension Fund, the owner, particularly in view of the lease agreement.\\nIf the fourth factor is applicable, it is to be determined by whether the party with whom Allright is in privity had a full and fair opportunity to litigate the issue. The answer is clearly yes. Collateral estoppel applies and Allright cannot now contend that plaintiff was acting during the condemnation and the abandonment other than as a public corporation.\\nAllright also challenges the trial court's finding that plaintiff was acting in good faith in abandoning the condemnation. The general rule in this state is that public agencies, as opposed to private corporations, are exempt from liability for litigation expense or pecuniary loss incurred by the landowner in condemnation proceedings when the agency's abandonment is timely and in good faith. State ex rel. Missouri Highway and Transportation Commission v. Turner, supra at [7]. The abandonment here occurred within the prescribed time period and was therefore timely. In Turner, supra at [8], the court noted that a condemnor has a right under Rule 86 to ascertain the final price of the parcel and to discontinue the proceedings if the price is too high. That is the very purpose for the condemnor having the right to abandon the condemnation. There is no indication that this condemnation was abandoned for any reason other than that the price was too high to allow for the economical redevelopment anticipated by Associates and plaintiff. The Koehr decision and our previous discussion preclude imputing any bad faith to the relationship between plaintiff and Associates created by the letter agreement.\\nJudgment affirmed.\\nGARY M. GAERTNER and RHODES RUSSELL, JJ., concur.\\n. Originally, Allright had sought interest on the amount of the commissioners' award from the date of that award to the date of abandonment. See \\u00a7 523.045 RSMo 1994. The trial court made such an award to United States Steel and Carnegie Pension Fund, the owner of the parcel plaintiff sought to condemn, but did not award interest to Allright. Prior to oral argument, All-right waived any claim of error in regard to the interest issue. Because plaintiff did not appeal the award to the Pension Fund there is no issue pending as to the Pension Fund and the judgment in its favor is affirmed.\\n. In Hudson v. Carr, 668 S.W.2d 68 (Mo.banc 1984) l.c.70, there is dicta that the fourth factor is applicable only when there exists a lack of mutuality, i.e., where the person seeking to invoke collateral estoppel is not himself bound by the prior adjudication. Plaintiff was bound by the Koehr adjudication so there is no lack of mutuality.\"}"

mo/10016113.json

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+"{\"id\": \"10016113\", \"name\": \"Merel Louise JOHNSON, et al., Respondents, v. MERVYN W. JENKINS, INC. and Mervyn W. Jenkins, Individually, Appellants\", \"name_abbreviation\": \"Johnson v. Mervyn W. Jenkins, Inc.\", \"decision_date\": \"1995-08-29\", \"docket_number\": \"No. WD 49944\", \"first_page\": \"586\", \"last_page\": \"590\", \"citations\": \"904 S.W.2d 586\", \"volume\": \"904\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T01:10:35.962282+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KENNEDY, P.J. and SMART and LAURA DENVIR STITH, JJ.\", \"parties\": \"Merel Louise JOHNSON, et al., Respondents, v. MERVYN W. JENKINS, INC. and Mervyn W. Jenkins, Individually, Appellants.\", \"head_matter\": \"Merel Louise JOHNSON, et al., Respondents, v. MERVYN W. JENKINS, INC. and Mervyn W. Jenkins, Individually, Appellants.\\nNo. WD 49944.\\nMssouri Court of Appeals, Western District.\\nAug. 29, 1995.\\nMichael B. Watkins, Chillicothe, for appellants.\\nR. Brent Elliott, Chillicothe, for respondent.\\nBefore KENNEDY, P.J. and SMART and LAURA DENVIR STITH, JJ.\", \"word_count\": \"2190\", \"char_count\": \"12787\", \"text\": \"LAURA DENVIR STITH, Judge.\\nPlaintiffs brought suit against Defendants Mervyn W. Jenkins, Inc. and Mervyn W. Jenkins claiming that Mr. Jenkins fraudulently attempted to deprive them of certain real property located in Livingston County, Missouri (disputed property). Defendants appeal the trial court's judgment setting aside the Collector's Deeds for Taxes and finding that Defendants had no right, title, claim or interest in or to the disputed property. Defendants claim that the Collector's Deed cannot be set aside because the tax sale was performed in compliance with statutory mandates. We affirm on the grounds that Defendant Mervyn W. Jenkins, Inc. was not a bona fide purchaser and therefore took title to the property subject to the Plaintiffs' ownership interest in the property.\\nI. FACTUAL AND PROCEDURAL BACKGROUND\\nThe disputed property, which is the subject matter of this lawsuit, is situated in Livingston County, Missouri, and is more particularly described as:\\nthe West part of the West Half of the Southwest Quarter West of Grand River in Section Two (2), Township Fifty-six (56), Range Twenty-Two (22), containing 17 acres, more or less.\\nThis particular piece of property had been the subject of lawsuits filed in 1977 by Mr. Jenkins and Cecil Twombly with regard to a dispute as to the proper placement of the property line separating the Jenkins' property and the Twombly's property. As a result of these lawsuits, on April 13, 1977, the Circuit Court of Livingston County, by stipulation of the parties, found Cecil C. Twombly to be the owner of the above described real estate. The court also ordered that the property line be surveyed and set out with appropriate markers. For reasons not explained by the record, the Decree proclaiming Mr. Twombly as the owner of the disputed property was never recorded.\\nEven though Mr. Twombly was found to be the owner of the property in question in 1977, Mr. Jenkins continued to pay real property taxes on this tract of property through 1980 as part of a larger tract of land. Mr. Jenkins claims that he tried to get this property removed from his name on the tax rolls but he was told that the name of the assessed party could not be changed on a tract of land smaller than 40 acres and that he had to pay taxes on the land as it was still listed in his name. Mr. Jenkins did not then record the Decree showing that the property belonged to Mr. Twombly. Instead, in 1980, Mr. Jenkins divided the disputed property from the larger tract of land of which it was a part on the real estate tax records and conveyed it, on December 8, 1980, for no consideration and by quit claim deed, to his cousin, Alfred Cameron, Jr. Mr. Jenkins claims he undertook this transfer for the sole purpose of ensuring the property would no longer be listed under his name on the tax rolls. The record does not show whether Mr. Jenkins continued to receive, or whether Mr. Cameron ever received, the tax notices for the land. It does show that neither paid any taxes on the disputed property. Mr. Cameron stated that, although he was aware of the quit claim deed, he did not believe he had any interest in the property.\\nAfter failure of the listed owner, Alfred Cameron, Jr., to pay real estate taxes for the three year period from 1980 through 1982, the Livingston County Tax Collector filed notice that the land would be sold for nonpayment of taxes. This notice was not sent to Mr. Twombly, the true owner, since the tax records showed the Mr. Cameron owned the land. The tax sale was conducted on August 22, 1983. At the sale, Mervyn W. Jenkins, Inc., purchased the disputed property for the total sum of $1,600, of which $98.09 was for back taxes, interest and penalties. In accordance with statutory procedures, Mervyn W. Jenkins, Inc. received a Certificate of Purchase from the Collector of Livingston County, Missouri on August 22, 1983 and then obtained a Collector's Deed for Taxes on September 5, 1985. Mr. Jenkins continued to pay the real estate taxes on the disputed property through 1993.\\nPlaintiffs, who are successors in interest to Mr. Twombly, claim they did not learn that Mr. Jenkins claimed any interest in the disputed property until they received a Notice to Vacate the Premises on January 9, 1986. Learning of Mr. Jenkins' claim, Plaintiffs filed suit, claiming that Mr. Jenkins fraudulently attempted to deprive plaintiffs of the disputed property, that he unlawfully withheld possession of the disputed property and that the Collector's Deed was void because the description in the deed was vague and uncertain.\\nMervyn W. Jenkins, Inc. filed a counterclaim seeking title to the disputed property and seeking rent or income from the crops produced on the disputed property subsequent to the purchase date of August 22, 1983.\\nThe court set aside the Collector's Deed for Taxes, declaring it null and void, and further found that \\\"the Defendants have no right, title, claim or interest in or to the [disputed property].\\\" Plaintiffs were ordered to pay Defendants the $420.72 Defendants had paid in back real estate taxes on the disputed property as well as the $1,600.00 (plus interest) which Defendants had paid to the Collector of Livingston County as consideration for the Collector's Deed for Taxes. In addition, the court found that Defendants had unlawfully withheld possession of the disputed property and that Plaintiffs were entitled to the possession of the disputed property and to $8,747.13 plus interest as damages. The court also found in favor of Plaintiffs with regard to Defendants' counterclaims to quiet title and for rents and income from crops produced upon the disputed property.\\nDefendants appeal on the grounds that there was insufficient evidence in the record to justify a finding of fraud, that the notice of tax sale was not defective and that Plaintiffs failed to show the tax sale was invalid.\\nII. MR. JENKINS DID NOT OBTAIN VALID TITLE AT THE TAX SALE BECAUSE HE TOOK THE PROPERTY WITH KNOWLEDGE OF WHO WAS ITS TRUE OWNER\\nDefendants argue that the Deed cannot be set aside because the tax sale was performed in compliance with statutory mandates. However, Defendants fail to recognize that the issue presented is not the legality of the tax sale but rather the laws and principles regarding the passage of title to real estate. Defendants impliedly argue that these principles should not apply to the passage of title by a tax sale unless some defect or invalidity can be found in the tax sale itself. This quite simply is not so.\\nA bona fide purchaser of realty with no actual notice of an unrecorded interest in that realty takes free of that unrecorded interest. Wilcox v. Phillips, 260 Mo. 664, 681-89, 169 S.W. 55, 59-61 (1914); Bremen Bank & Trust Co. v. Muskopf, 817 S.W.2d 602, 608 (Mo.App.1991); Ortmeyer v. Bruemmer, 680 S.W.2d 384, 394-95 (Mo.App.1984). A \\\"bona fide purchaser\\\" is one who pays a valuable consideration, has no notice of outstanding rights of others and who acts in good faith. Johnson v. Stull, 303 S.W.2d 110, 118 (Mo.1957). Applying this rule, the courts have held that a purchaser at a tax sale with notice that someone other than the record owner claims title to the land is not an innocent purchaser and takes subject to the rights of the rightful owner. Stuart v. Ramsey, 196 Mo. 404, 414-17, 95 S.W. 382, 385-86 (1906), held that one who takes a deed at a tax sale with notice of an unrecorded deed takes an inferior title to that of the grantee of the unrecorded deed. See also Wilcox, 260 Mo. at 682-84, 169 S.W. at 59-60 (purchaser at a tax sale stands precisely in the position of an execution purchaser at any other sale in that he gets no title where he has notice of an outstanding title in another); Adams v. Gossom, 228 Mo. 566, 580-84, 129 S.W. 16, 19-21 (1910) (tax sale purchaser did not obtain good title where it was evident someone other than record owner was actively using the land and where he was otherwise on inquiry notice); Harrison Mach. Works v. Bowers, 200 Mo. 219, 230-34, 98 S.W. 770, 774 (1906) (accord).\\nZweigart v. Reed, 221 Mo. 33, 119 S.W. 960 (1909), is also instructive. In that case, a Mr. Dunnegan was, for a number of years, the agent of the record owner, Mr. Smith, for the payment of taxes on the property in question. Mr. Dunnegan knew that Mr. Smith had stopped paying taxes on the property but that someone else had begun paying the taxes. In fact, Mr. Smith had sold the land to Mr. Zweigart, who had paid the taxes. Because some back taxes were incorrectly shown as unpaid, a tax sale was held. Mr. Smith, rather than Mr. Zweigart, received notice of the sale. Mr. Dunnegan purchased the property at the sale. When Mr. Zwei-gart learned of the sale, he sued to set it aside. The court held that Mr. Dunnegan's knowledge that someone other than Mr. Smith was paying taxes on the land at least placed him on \\\"inquiry notice\\\" and had he made inquiry he would have discovered Mr. Zweigart's interest. The court held that such inquiry notice, like actual notice, of the fact that the suit was not brought against the true owner made the tax deed unavailing between Mr. Dunnegan and the true owner, and the tax deed could be canceled for this reason.\\nHere, as in Stuart, Zweigart, and the other cited cases, Mr. Jenkins is not a bona fide purchaser because he had notice of the outstanding rights of the true owners. Title to the disputed property was decided in a prior suit to which both Mr. Twombly and Mr. Jenkins were parties. In this prior suit, an order was entered by the court and by stipulation of the parties adjudging Mr. Twombly to be the owner of the disputed property. The order, as a written instrument conveying an interest in real estate, should have been recorded with the office of the recorder for Livingston County. \\u00a7 442.380, RSMol994. Because this was not done, the order is not valid as to third parties, but it was valid os to the parties thereto and those who had actual notice of it. \\u00a7 442.400, RSMol994.\\nMr. Jenkins was a party to the prior suit and as such was a party to the order which granted Mr. Twombly ownership of the disputed property. As the primary and controlling shareholder and President of the purchaser, Mervyn W. Jenkins, Inc., his notice is imputed to the corporation. For this reason, it took title to the disputed property subject to the interests of the Twombly descendants.\\nFor these reasons, the judgment is affirmed.\\nAll concur.\\n. Mr. Jenkins admitted in his deposition that they settled the previous lawsuit and that, as far as he was concerned, Cecil Twombly owned the disputed property and that he had agreed to that. Mr. Jenkins also stated that Mr. Twombly actually possessed the land and farmed it after the lawsuit. Thus, in 1977, Mr. Jenkins knew that he no longer owned the disputed property.\\n. Mr. Jenkins is the primary and controlling stockholder and President, and holds the power of attorney, for Mervyn W. Jenkins, Inc.\\n. Mr. Jenkms testified that Chester Twombly was also present at the sale and may have bid on the disputed property.\\n. Cecil Twombly died on the 13th of May, 1980. Thereafter, by descent, the above described real estate was owned by Chester Twombly who died on April 25, 1985, and by reason of his the death, plaintiffs Merel Louise Johnson and Chester La-Vem Twombly are the alleged present owners of the disputed property.\\n. Plaintiffs also alleged willful, wanton and malicious conduct on the part of Mr. Jenkins entitling them to punitive damages.\\n. After filing suit, an option to purchase the disputed property was taken by Shane Danner, Stephen Danner and Pat Danner, by and through several trusts, from the Plaintiffs. The optionees were made additional parties by Mervyn W. Jenkins, Inc. and plaintiffs subsequently amended their petition to add Shane M. Danner as an optionee for the purchase of the disputed property-\\n.Defendants also argue that, under Ewing v. Lockhart, 641 S.W.2d 835 (Mo.App.1982), the plaintiffs had a legal duty to inquire about and pay his taxes without any notice, and that because they did not do so, they are not entitled to equitable relief. However, Defendants again ignore the principle of a purchaser with actual knowledge as to the true ownership of the property takes title subject to that true owner's interest. In Ewing, unlike in this case, the purchaser at the tax sale had no notice or knowledge as to the true owner of the property.\"}"

mo/10017349.json

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+"{\"id\": \"10017349\", \"name\": \"STATE of Missouri, Respondent, v. Saadi DUMAS, Appellant; Saadi DUMAS, Movant-Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"State v. Dumas\", \"decision_date\": \"1995-04-04\", \"docket_number\": \"Nos. 64497, 66333\", \"first_page\": \"689\", \"last_page\": \"692\", \"citations\": \"898 S.W.2d 689\", \"volume\": \"898\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:38:54.324475+00:00\", \"provenance\": \"CAP\", \"judges\": \"SIMON, J., concurs.\", \"parties\": \"STATE of Missouri, Respondent, v. Saadi DUMAS, Appellant. Saadi DUMAS, Movant-Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Saadi DUMAS, Appellant. Saadi DUMAS, Movant-Appellant, v. STATE of Missouri, Respondent.\\nNos. 64497, 66333.\\nMissouri Court of Appeals, Eastern District, Division Four.\\nApril 4, 1995.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied May 9, 1995.\\nApplication to Transfer Denied June 20, 1995.\\nArthur S. Margulis, David R. Crosby, Mar-gulis & Grant, P.C., Clayton, for appellant.\\nJeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.\", \"word_count\": \"1687\", \"char_count\": \"10423\", \"text\": \"KAROHL, Judge.\\nDefendant, Saadi Dumas, contests a conviction of failure to appear, \\u00a7 544.665 RSMo 1986. Defendant challenges the sufficiency of the evidence to support the verdict. He does not appeal a conviction and eight-year sentence for unlawful use of a weapon (COW), \\u00a7 571.030 RSMo 1986. Defendant was jury-tried on both charges and sentenced by the court as a persistent offender. A Rule 29.15 motion directed at the CCW conviction was denied without an evidentiary hearing.\\nOn February 18, 1991, police officers Anthony Boone and Donald Grace were on routine patrol in the city of St. Louis. Around 4:15 p.m. the officers were near the intersection of Blair and Bremen when they saw a car at the intersection that failed to observe the stop sign. Officer Boone pulled the vehicle over, got out of the patrol car, and approached the driver's side of the car. Officer Boone asked defendant for a driver's license. Defendant did not have one. Officer Boone asked defendant to step out of the car.\\nDefendant got out of the car. He appeared nervous and held his right arm to his side as if he were trying to hide something. Officer Boone noticed a bulge in the top part of defendant's waistband. Officer Boone told defendant to raise his hands and walk over to Officer Grace, who was standing at the rear of defendant's ear. As defendant complied, Officer Boone, who was behind defendant, touched his own gun to indicate to Officer Grace that he suspected defendant was armed. Officer Grace found a loaded .357 Magnum concealed on defendant's person. Defendant was then handcuffed and arrested.\\nFollowing his arrest, defendant was released on a $3,500, 10% cash deposit bond. His case was assigned for trial on April 6, 1992. Notice of this April 6 trial setting was sent to his attorney, Talat Bashir, on March 5, 1992. The failure-to-appear charge alleged defendant failed to appear on April 8, 1992.\\nBashir testified for the state over defendant's objections based on attorney-client privilege. He testified he received notice of the April 6, 1992, trial setting, but did not notify defendant because the policy at the Public Defenders' office was that defendants were responsible for calling the office to find out their own court dates. There was no evidence defendant was made aware of the policy. Bashir testified defendant did not appear in court on April 6, 7, or 8,1992. He testified he may have telephoned defendant on April 6 or 7. He told defendant, \\\"I need you in court,\\\" but defendant said he wasn't coming. The attorney did not tell defendant why he was needed, in what court he was to appear or when he was to appear.\\nWe find defendant's issue relating to proof of willfulness requires reversal. He argues that statements to his former public defender, Talat Bashir, were privileged communications, and, if the privilege had been honored, there would have been no evidence of notice and no foundation for finding willful failure.\\nThe attorney-client privilege is created by statute. Section 491.060 RSMo Cum.Supp. 1993 provides:\\nThe following persons shall be incompetent to testify:\\n(3) An attorney, concerning any communication made to him by his client in that relation, or his advice thereon, without the consent of such client;\\nThe privilege is the client's to claim and runs from the client to the attorney. State v. Carter, 641 S.W.2d 54, 57 (Mo. banc 1982). The privilege is limited to communications between the attorney and the client. Id. It renders the attorney incompetent to testify to confidential communications a client made to him. Id.\\nOn direct examination, the prosecutor asked Bashir if he made any contact with defendant concerning his case during the months before the case was set for trial. Defendant objected and claimed his attorney-client privilege. The court overruled the objection, stating that notifying the defendant of a trial setting is not a privileged communication. This may be correct for testimony of the attorney regarding his actions. Bashir testified he called defendant. Later, the prosecutor asked Bashir if defendant said anything to Bashir about showing up in court. Again, defendant objected based on attorney-client privilege. The court overruled the objection. It ruled there was no attorney-client relationship at the time defendant made the statement to Bashir because the failure-to-appear charge had not been filed yet. In fact, the charged crime had not been committed. The court also stated the defendant waived the attorney-client privilege in his opening statement by referring to his lack of notice of the court date and by writing a letter to the court regarding his and his attorney's lack of notice.\\nWe find the attorney-client privilege applies to defendant's statement to Ba-shir and that defendant never waived his privilege. Defendant's statement to Bashir was made in the context of an attorney-client relationship. The conversation was offered as evidence to prove an element of the charge of failure to appear. That defendant may have made the statement before the crime occurred or before he was charged with failure to appear does not destroy the attorney-client privilege. The statement was made by a client to his attorney who was representing him on a pending criminal ease.\\nThe opening statement was not evidence. There was no express waiver of the attorney-client privilege in defendant's letter or the opening statement. Nor was the assertion defendant was not notified of an April 8, 1992, trial setting a basis to imply a waiver.\\nDefendant also contends that even if the testimony barred by the attorney-client privilege is considered, the evidence is insufficient to submit the issue of willfulness.\\nSection 544.665 RSMo 1986 reads as follows:\\nIn addition to the forfeiture of any security which was given or pledged for his release, any person who, having been released pursuant to sections 544.040 to 544.665, or upon a recognizance or bond pursuant to any other provisions of law, willfully fails to appear before any court or judicial officer as required shall be guilty of an offense and punished as follows: .\\nThe evidence was insufficient to support defendant's conviction of failure to appear. First, there was no proof defendant's ease was set, as charged, for April 8, 1992. A memorandum prepared on March 5, 1992, and sent to Bashir, set defendant's case for April 6,1992. No one informed defendant of that setting. There was no other evidence the case was ever reset. Second, the date of Bashir's telephone call to defendant was not proven. On direct examination, Bashir testified he could not recall whether he called defendant on April 6 or 7, but that he thought it was April 7. He also testified his only statement to defendant was, \\\"I need you in court.\\\" This testimony does not prove defendant had notice of where, when or why he was to appear.\\nThe court erred in admitting Bashir's testimony regarding defendant's statements to him. The testimony was inadequate to support submission of the charge. For both reasons the failure-to-appear conviction is reversed.\\nFinally, defendant contends the motion court erred in denying his Rule 29.15 motion for post-conviction relief based on ineffective assistance of counsel claims without an evi-dentiary hearing. The motion alleged ineffective assistance in defense of the CCW charge.\\nTo overcome the motion court's determination, defendant must show the court's findings of fact, conclusions of law and judgment were clearly erroneous. Rule 29.15(j); State v. Twitty, 793 S.W.2d 561, 567 (Mo. App.1990). To be entitled to an evidentiary hearing, defendant must: (1) allege facts, not conclusions, which if true, would warrant relief; (2) allege facts the record does not refute; and, (3) demonstrate the matters complained of resulted in prejudice to defendant. State v. Fitzgerald, 781 S.W.2d 174, 188 (Mo.App.1989).\\nTo establish a claim for ineffective assistance of counsel, defendant must show his counsel's performance was deficient and the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Sanders v. State, 738 S.W.2d 856 (Mo. banc 1987).\\nDefendant alleges his counsel was ineffective for failure to call Antoine Reed and Spencer Randle as witnesses. He alleges Reed would have testified defendant borrowed Reed's ear, there was a gun in the car, but defendant did not know about the gun. Defendant also alleges Reed would have testified defendant was with him a few minutes prior to his arrest and did not have a gun at that time. Defendant alleged Randle would have testified his wife, Carol Randle, left her gun in Reed's car and that the gun was used for target shooting only.\\nThe motion court found no ineffective assistance of counsel: (1) for failure to call Reed as a witness because defendant's 29.15 motion alleged Reed was unavailable for defendant's trial, (2) for failure to use Reed's testimony from defendant's previous trial, which resulted in a hung jury, and, (3) for failure to call Randle as a witness.\\nThe proposed testimony of Reed and Ran-dle will not support an allegation of ineffective assistance of counsel. First, Randle's testimony would have been cumulative of Carol Randle's testimony. Second, their testimony would not have supported a defense because their evidence would not have contradicted the facts proven by the state's evidence. Whether the gun was left accidentally in Reed's car and whether it was used prior to that for legal target shooting is irrelevant on the issue of whether defendant had the gun concealed on his person when the officers stopped him. Defendant was not prejudiced by the absence of testimony from either witness.\\nWe reverse the conviction for failure to appear. We affirm the denial of Rule 29.15 relief on the CCW conviction.\\nSIMON, J., concurs.\\nAHRENS, P.J., concurs in result.\"}"

mo/10118553.json

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+"{\"id\": \"10118553\", \"name\": \"STATE of Missouri, Respondent, v. Robert Joe STONER, Appellant\", \"name_abbreviation\": \"State v. Stoner\", \"decision_date\": \"1971-11-08\", \"docket_number\": \"No. 55785\", \"first_page\": \"363\", \"last_page\": \"370\", \"citations\": \"473 S.W.2d 363\", \"volume\": \"473\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:50:05.022542+00:00\", \"provenance\": \"CAP\", \"judges\": \"BARRETT and STOCKARD, CC, concur.\", \"parties\": \"STATE of Missouri, Respondent, v. Robert Joe STONER, Appellant.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Robert Joe STONER, Appellant.\\nNo. 55785.\\nSupreme Court of Missouri, Division No. 2.\\nNov. 8, 1971.\\nMotion for Rehearing or to Transfer to Court En Banc Denied Dec. 13, 1971.\\nJohn C. Danforth, Atty. Gen., G. Michael O\\u2019Neal, Asst. Atty. Gen., Jefferson City, for respondent.\\nNeale, Newman, Bradshaw & Freeman, O. J. Taylor, Joseph A. Bohrer, Springfield, for appellant.\", \"word_count\": \"3925\", \"char_count\": \"22843\", \"text\": \"PRITCHARD, Commissioner.\\nAppellant was found guilty by the verdict of a jury of possession of burglar's tools under \\u00a7 560.115, RSMo 1969, V.A.M. S. As a second offender the court sentenced him to five years imprisonment in the Department of Corrections.\\nThe principal issue is whether a \\\"coin box\\\" in a public pay telephone is a \\\"safe\\\" within the meaning of \\u00a7 560.115. Appellant was charged with \\\"wilfully, unlawfully and feloniously [having] in his custody one (1) tubular lock picking device, one (1) expanding bolt, one (1) false key to upper housing of a pay telephone, one (1) ratchet, two (2) sockets, and one (1) mechanical puller, all of which aforesaid articles being then and there material, implements, instruments and mechanical devices, adapted, designed and commonly used for breaking into a safe, to wit: a metal receptacle of a pay telephone, commonly called a 'coin box', said receptacle being used for the preservation of money inserted into said telephone Appellant says not only that the coin box is not a safe within the meaning of the statute, but that the state's evidence showed the implements he possessed were not \\\"adapted, designed and commonly used\\\" to break into a coin box, as charged, but rather the pay telephone in which the coin box was contained, a fatal variance. Under his point I, he claims the state's case failed for both reasons.\\nOn September 15, 1969, Officer Vic Rohrer was driving a patrol car in the south central area of Springfield, Missouri, at about 8:00 p.m. In response to a radio dispatch he proceeded to the 500 block of South Grant where he found telephone booths. He saw appellant inside the north booth and a woman (who was pointed out in court) standing outside it. As Rohrer and other officers arrived he observed appellant hurriedly leaving the north telephone booth, stepping out and coming directly at Rohrer who was then 10 or 15 feet away. At that time appellent stated that he had placed some money in the pay telephone and was unable to make his call or to get his money back. Rohrer looked over the scene and saw a briefcase on the ground near the two telephone booths and that there were indentations or heavy marks on the south pay telephone which appeared to have been recently made. There was an alarm system on the south pay telephone but not on the north one. The briefcase was open and Rohrer observed therein a ratchet, some sockets, a steel bar which had a large screw through one end, some vise grips, screw drivers and a small pair of pliers. These articles were marked as exhibits and received into evidence over appellant's objection that they were the subjects of an unlawful search and seizure.\\nAfter observing the above tools Rohrer arrested appellant and verbally advised him of his constitutional rights, then searched him. In appellant's left front shirt pocket he found a split bolt and nut, and in his left rear pocket he found a five-inch steel shank with a brass collar and seven set screws with little wires extending out of the brass collar. In appellant's front waistband Rohrer also found a door of the type used on the front lower housing of pay telephones. This door did not come from either of the aforementioned telephone booths, the doors of which were intact at the time. In appellant's left front trouser pocket Rohrer found a key, and in the left front shirt pocket a tear gas cartridge, a ball point pen and a brass slug. The key (Exhibit 9) was inserted by Roh-rer into the upper housing of the south pay telephone and the key did fit it and did unlock the upper housing.\\nThe following day Rohrer accompanied a Mr. Renfrow, an employee of Southwestern Bell Telephone, in tracing back serial numbers \\\"on the doors leading us to other phones that were broken into.\\\"\\nEdwin P. McCaskill was a Security Manager for the Southwestern Bell Telephone Company, with duties to investigate telephone thefts. He was familiar with the tools used to accomplish pay telephone thefts, and was familiar with State's Exhibit 12, a pay telephone model, which was similar in security devices to those of a photograph of the south telephone at the scene of appellant's arrest. A coin deposit chute had been added which made it difficult to put a slug into the telephone, and an Ace type lock had been added. The Ace lock had a barrel which was called a tubular lock which screwed into the wall securing the upper part of the telephone so it could not be removed, so the interior could not be manipulated, and so that part of the mechanism could not be knocked out to get down to the money contained in the lower part of the telephone. Additionally, the upper housing had a standard \\\"Ten G\\\" key used all over the United States, but this key did not allow access to the coin box which had its own third locking mechanism. The coin receptacle had a number on it from which it could be found where it was located. The coin receptacle itself had a seal on it which prevented thefts by the telephone company's own people when they brought the box in. The coin box also had a double-headed nail in it which was dropped through a hole securing the box. The nail could not be removed unless the upper part of the telephone was removed so that one could reach inside and pull up the nail. McCaskill had seen tools similar to those found by Officer Rohrer and which were in evidence. He described them: \\\"These are instruments which have been found in the possession of people who were either in the act or had recently completed the burglary or the destruction or robbery of a coin telephone by removal of the door locking the coin compartment.\\\" McCaskill demonstrated to the jury how the instruments are used on a telephone to gain access to the coin box, and, according to the transcript, the tools and keys used were effective to accomplish removal of the coin box.\\nArlin Renfrow was Unit Manager for Southwestern Bell Telephone Company and was familiar with the two telephones at the 500 block of South Grant. The south telephone at that location had a contact alarm which went off when the upper housing was removed. From his records he was able to determine where State's Exhibit 11, telephone door 3A0042 (found in appellant's possession) belonged \\u2014 at' 340 West Walnut, Carl's Drivein Liquor Store. He investigated the telephone at that location on September 17, and found that the door wedged in the lower housing was held there by a piece of paper. The door was removed and it was found that it was not the one which belonged there and the coin receptacle was not behind the door. The bolt on the lock was bent over out of shape. This door was numbered H44355 and belonged at Crank's Drug Store at Boonville and Commercial, where the door was numbered IF7355 and belonged at the Glower Grocery at 1600 West Division. The telephone door at the latter address was numbered IF6536 belonging at the IGA Store at 1121 East Commercial. Likewise, that door, numbered U92941, belonged at Brigance Grocery Store at 509 South National. The 509 South National door did not have a number on it. There was testimony that the manner of breaking into a telephone coin box included carrying a door to it which had been taken from a previously broken into telephone, and so on. Renfrow could not go any farther on his search after finding the unnumbered door at 509 South National.\\nAs an offer of proof taken outside the jury's hearing and refused by the court, Arthur L. Peterson, Branch Officer Manager for Diebold Incorporated, a safe manufacturer, defined that company's products as safes (of steel, one-fourth inch and more in thickness) and testified that he did not understand State's Exhibit 12, a coin box, to be a safe.\\nSection 560.115 is as follows:\\n\\\"Any person who makes, mends, designs or sets up, or who has in his custody or concealed about his person any tool, false key, lock pick, bit, nippers, fuse, force screw, punch, drill, jimmy, bit, or any material implement, instrument, or other mechanical device whatsoever, adapted, designed, or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door, shutter or window of a building of any kind, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than two years, nor more than ten years.\\\"\\nAppellant first argues that the state's evidence showed the tools, in question were \\\"rather sophisticated devices designed solely for the purpose of obtaining access to the pay telephone itself. There was no evidence that showed, or would tend to show, that these tools were designed or adapted (or for that matter even necessary) for breaking into the coin receptacle of a pay telephone, as charged in the information.\\\" Appellant says this evidence constitute? a fatal variance between the information and the proof within State v. Stewart, 228 Mo.App. 187, 63 S.W.2d 210, 213, and State v. Plant, 209 Mo. 307, 107 S.W. 1076. The state counters with its argument that a pay telephone has a dual function \\u2014 to enable one for money to make a telephone call; and, of primary concern to the telephone company, to receive and protect money placed in the machine \\u2014 and a pay telephone is a telephone and a receptacle for the preservation of money. The state's evidence showed clearly that to gain access to the coin box it was necessary to manipulate tools and devices on the locks above. These locks were there for the primary purpose of protecting the money in the coin box. The proof showed that the tools found in appellant's possession were adapted for breaking into a telephone unit in order to remove coins from the lower receptacle. A part of the operation included removal of an upper door so that a dou-bleheaded nail securing the coin box could be removed. It is thus apparent that there was no variance between the charge and the proof. Appellant's contention that the state agreed that the receptacle had nothing to do with the case is without merit. That matter arose during the testimony of witness McCaskill in which he was describing the coin box. \\\"JUROR,, MRS. TURNER: Does this number have any bearing? THE WITNESS: As I understand it, this is a case where the receptacle has nothing to do with the case, as I understand it. MR. O'NEAL: That's right. THE WITNESS : But again, this is a security feature. This is a number that would be on this box alone. No other box anywhere in this country has that number on it and we can tell you from our records exactly where it was located at all times. Q. (By Mr. O'Neal) Mr. McCaskill, you referred to a number on the coin box. Does it have any relationship to a number on the door plate? A. No, they are completely separate numbers. \\\" It is apparent that the witness' testimony taken in context was in answer to the juror's question clarifying the fact that the coin box number was not significant as contrasted to door plate numbers such as the one found in appellant's possession.\\nRelying upon State v. Aspell, 10 Ohio St.2d 1, 225 N.E.2d 226, appellant says that a coin receptacle within a pay telephone is not within the meaning of the word \\\"safe\\\" in \\u00a7 560.115. In the Aspell case the defendants were charged with actual violation of a statute in that they did \\\"maliciously and forcibly, by and with the aid of hand tools, force an entrance into a depository box containing money, belonging to the Ace Vending Company.\\\" The statute prohibited the blowing or attempting to blow, or the forcing or attempting to force, an entrance into a safe, vault or depository box wherein there is contained any money or thing of value. The court held that a ten-pack cigarette carton with its top removed which received coins in a metal cigarette vending machine was not a \\\"depository\\\" within the meaning of the statute. Apparently the court reasoned, in applying the maxim \\\"ejusdem generis,\\\" that the word \\\"depository\\\" in the statute embraced only a meaning in similar character as the words \\\"safe\\\" and \\\"vault\\\" first used in the statute. No such construction is called for here, and on its facts it is to be distinguished.\\nAlthough our statute does not use the word \\\"depository\\\" the meaning of \\u00a7 560.-115 in prohibiting the possession of burglar tools is clear. The question simply is whether a \\\"safe\\\" encompasses a coin receptacle in a pay telephone so that appellant's conviction of possessing tools and implements for the purpose of breaking into the receptacle may stand. Webster's Third New International Dictionary defines \\\"safe\\\" as \\\"1: a place or receptacle to keep articles safe: as b: a metal box or chest sometimes built into a wall or vault to protect money or other valuables against fire or burglary.\\\" Black's' Law Dictionary, Revised Fourth Edition, defines \\\"safe\\\" as \\\"a metal receptacle for the preservation of valuables.\\\" The above-related evidence clearly shows that the telephone company's pay telephone was designed so that coins deposited in it and falling into the coin box were protected against break-in by two locks and a double-headed nail. The purpose of the design was to protect the valuables, i. e., the coins, belonging to the company. The coin box is constructed of heavy metal albeit not as thick as Mr. Peterson described the Diebold Company safes to be. There can be no doubt that the metal coin box is a \\\"safe\\\" within the statute, and this accords with the statement in 33 A.L.R.3d 798, 846, \\\"The courts have tended to take an expansive view of the types of depositories included within the ambit of the respective statutes relating to burglars' tools.\\\" And see the there reported cases of Commonwealth v. Marganon, Ky., 370 S.W.2d 821, where the court held that a vending machine was a place within the statute where goods, wares, merchandise or money are kept as against the contention that the statute was limited to dwelling houses. And see Commonwealth v. Tilley, 306 Mass. 412, 28 N.E.2d 245, holding that an automobile trunk was a depository within the statute; State v. Klein, 91 N.J.Super. 509, 221 A.2d 550, where possession of a screw driver and car keys with intent to break into automobile trunks was held to be a violation of the burglary tool statute; and State v. Wilson, 7 Ariz.App. 384, 439 P.2d 831, 832, Fn. 1, affirming a conviction for possessing false keys for the purpose of entering vending machines, where the statute made it a felony to possess \\\"a false key or other instrument or contrivance for the purpose of entering a building, or a safe, chest, trunk or other place of safekeeping for money,\\nIt is true as appellant says, citing State v. Getty, Mo., 273 S.W.2d 170; State v. Chadeayne, Mo., 323 S.W.2d 680 and other cases, that there is a general rule of strict construction of penal or criminal statutes and that doubts are to be resolved in favor of the accused. In view, however, of the above definition of a safe, which would encompass the metal coin receptacle here, and the obvious intent of the legislature to protect such depositories by making it a felony to possess tools, implements, etc., adapted for breaking into the same, the rule of strict construction should not be here applied. Rather, the statement in State v. Ballard, Mo.App., 294 S.W.2d 666, 669[1-4], should apply: \\\"The rule of strict construction is not violated by according the language used by the legislature its full meaning in support of the policy and aim of the enactment. The rule does not compel a narrow or forced construction, out of harmony with the manifest purpose and intent of the statute or one which would exclude cases from it that are obviously within its provisions.\\\" See also 82 C.J.S. Statutes \\u00a7 389, pp. 929-930. In the Tilley case, supra, the court said, \\\" 'Statutes framed in general terms commonly look to the future and may include conditions as they arise from time to time not even known at the time of enactment, provided they are fairly within the sweep and the meaning of the words and falling within their obvious scope and purpose.' The aim of the statute [first enacted in 1853] is to safeguard property kept for safekeeping, even though tempo rarily, in an automobile trunk as much as it is to safeguard property contained in a vault or safe, where, in either case, the property is secure until the protection of its depository is destroyed by breaking it open by a tool or implement in the hands of one wrongfully seeking possession of the property.\\\" (28 N.E.2d 247[2,3].) (Brackets added.) This disposes of appellant's contention that \\u00a7 560.115, first enacted in 1899, did not include a coin box in a pay telephone, which was not then in existence. Nor does the holding herein cause an ex post facto application of the statute as contended.\\nInstruction No. 3 given by the court defined the term \\\"safe\\\" as \\\"a metal receptacle for the preservation of valuables.\\\" Appellant says that \\u00a7 560.115 does not include a definition of a \\\"safe\\\" as contained in the instruction, and such definition is so broad and imprecise as to be beyond the language and intent of the statute. The point is ruled above as to the sufficiency of the state's evidence and reference to dictionary definitions as acceptable. The definition does not unduly broaden the definition of the word \\\"safe.\\\" A charge under \\u00a7 560.115 relates to the possession of tools for the purpose of breaking into a safe, and each case must turn upon its own facts. Here the evidence is clear that the tools and instruments in appellant's possession were adaptable and effective to gain access to the coin receptacle, and thus it is of no consequence that the tools could have been used for a legitimate purpose. State v. Young, Mo., 425 S.W.2d 177, 182, cited by appellant, is inapplicable under the facts here.\\nAppellant also contends that the court erred in giving Instruction No. 2 requiring that he possessed the implements in question with a burglarious purpose, and the definition in Instruction No. 3 defined \\\"burglarious\\\" as the \\\"breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house or building with the intent to commit some felony to steal therein.\\\" He says that breaking into a safe or vault is not burglary under any Missouri statute. He argues that the \\\"intent to commit some felony or to steal\\\" as used in Instruction No. 2 relates only to the burglary of dwelling houses (\\u00a7\\u00a7 560.040-560.060) or bank buildings (\\u00a7 560.075), and \\\"Had the defendant in this case actually gained access to the pay telephones on South Grant and taken money therefrom, he could not have been adjudged guilty of burglary, because he did not break into one of the buildings enumerated by the statutes.\\\" This ingenious argument overlooks that \\u00a7 560.070 provides that breaking into \\\"any booth\\\" with intent to steal or commit any crime therein shall be burglary in the second degree. This proposition was considered in People v. Miller, 95 Cal.App.2d 631, 213 P.2d 534; and Sanchez v. People, 142 Colo. 58, 349 P.2d 561, and other cases reported in 78 A.L.R.2d 778, 781, \\u00a7 3[a]. In the Miller case defendant's conviction of burglary was affirmed where he opened the door of the pay telephone booth, broke the coin box with a large hammer and took the money therefrom. In the Sanchez case the conviction was affirmed where defendant had been caught in the act of prying off the coin box in an outside telephone booth, as against the contention that the booth was not a building within the meaning of the amended statute. The instructions are not erroneous for the claimed reason.\\nAppellant's next contention is that the court erred in overruling his motion to suppress evidence and admitting into evi- . dence State's Exhibits 3 through 11 (certain tools, implements, instruments, and the lower cover of a pay telephone). In response to a dispatch, Officer Rohrer arrived at the scene within two minutes and observed appellant coming from the north booth. Although he did not immediately place appellant under arrest, he did so after he observed that the south telephone had marks on it and after he observed the open briefcase with tools therein. These events constituted probable cause for the arrest. See State v. Caffey, Mo., 436 S.W.2d 1. The contents of the briefcase were in plain view of Officer Rohrer. State v. Watson, Mo., 386 S.W.2d 24, 28[1], and cases cited. The search of appellant, revealing additional implements and the telephone cover, was also the incident of a lawful arrest. No error is shown by reason of admission of these exhibits into evidence.\\nThe admission of testimony of other pay telephones being broken into was not error under the facts of this case. As above related, the testimony showed a chain of activity culminating in appellant being in possession of the last lower cover of a pay telephone, this being in accordance with the practice of coin box thieves to remove covers and place them in a subsequently pilfered telephone to hide the theft, as the evidence also shows. Such activity constitutes an exception to the general rule of inadmissibility of evidence of other crimes. State v. Wing, Mo., 455 S.W.2d 457, 464.\\nAppellant's last point is that he was improperly sentenced under \\u00a7 556.280, RSMo 1969, V.A.M.S., as a second offender. Records of the Cass County Circuit Court were received in evidence showing that appellant was sentenced to three years in the Department of Corrections for stealing, a felony, on January 4, 1960. Appellant says that under \\u00a7 216.370, RSMo 1959, as it existed on the date of sentence, he could not have been sentenced to any institution except the Intermediate Reformatory, and that there is no evidence that he was ever imprisoned in the penitentiary. The evidence shows that he was in fact received at the Reception Diagnostic Center, and was assigned to the Intermediate Reformatory. The Second Offender Act by its terms requires only that a prior conviction be punishable by confinement in the penitentiary. State v. Kent, Mo., 382 S.W.2d 606. Compare also State v. Nolan, Mo., 316 S.W.2d 630, holding that the fact that the defendant was sentenced to and did serve his term in the Intermediate Reformatory (and not in the penitentiary) did not make \\u00a7 556.280 inapplicable.\\nThe judgment is affirmed.\\nBARRETT and STOCKARD, CC, concur.\\nPER CURIAM:\\nThe foregoing opinion by PRITCHARD, C, is adopted as the opinion of the Court.\\nAll of the Judges concur.\"}"

mo/10138890.json

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+"{\"id\": \"10138890\", \"name\": \"REPUBLIC INSURANCE COMPANY, Appellant, v. Jesse I. HEARN and Edith M. Hearn, Harold R. Bond, Dora Bond and Patricia Bond, Alva McGinness, and Don McMurray & Associates, Inc., Respondents\", \"name_abbreviation\": \"Republic Insurance Co. v. Hearn\", \"decision_date\": \"1966-12-12\", \"docket_number\": \"No. 51984\", \"first_page\": \"549\", \"last_page\": \"551\", \"citations\": \"414 S.W.2d 549\", \"volume\": \"414\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:18:22.895621+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOUSER and WELBORN, CC, concurs.\", \"parties\": \"REPUBLIC INSURANCE COMPANY, Appellant, v. Jesse I. HEARN and Edith M. Hearn, Harold R. Bond, Dora Bond and Patricia Bond, Alva McGinness, and Don McMurray & Associates, Inc., Respondents.\", \"head_matter\": \"REPUBLIC INSURANCE COMPANY, Appellant, v. Jesse I. HEARN and Edith M. Hearn, Harold R. Bond, Dora Bond and Patricia Bond, Alva McGinness, and Don McMurray & Associates, Inc., Respondents.\\nNo. 51984.\\nSupreme Court of Missouri, Division No. 1.\\nDec. 12, 1966.\\nPaul H. Niewald, Gordon, Adams, Nie-wald & Risjord, Kansas City, for appellant.\\nDonald W. Johnson, Kansas City, for respondents Jesse I. Hearn and Edith M. Hearn.\\nE. E. Thompson, Kansas City, for responds, Harold R. Bond, Dora Bond and Patricia Bond, Popham, Thompson, Pop-ham, Trusty & Conway, Kansas City, of counsel.\", \"word_count\": \"828\", \"char_count\": \"5070\", \"text\": \"HIGGINS, Commissioner.\\nRepublic Insurance Company sought a declaratory judgment adjudicating that it was not liable under its Homeowners' Insurance Policy No. MR1023764 for the period November 11, 1962, to November 11, 1965, issued to respondents Jesse I. and Edith M. Hearn as named insured, providing $25,000 coverage for comprehensive personal liability. It alleged that on September 6, 1964, Jesse I. Hearn was operating a boat with respondents Harold R. Bond, Dora Bond, Patricia Bond, and Alva McGinness as passengers, when the boat was involved in a collision; that \\\"there are claims and potential claims against Jesse I. Hearn by Harold R. Bond, Dora Bond, Patricia Bond and Alva McGinness as the result of said accident\\\"; that said policy contained a special exclusion relating to watercraft and outboard motors; that said policy \\\"provides no coverage or obligation on the part of the plaintiff to defend or otherwise incur any liability or expense as a result of the accident and of claims or potential claims to be asserted by any of the parties hereto, and plaintiff does further deny any and all liability to any of the defendants under its policy of insurance\\\"; \\\"that it is the contention and allegation of Jesse I. Hearn and Edith M. Hearn that the defendant, Don McMurray & Associates, Inc., created coverage or extended the coverage of the insurance policy through the said Don McMurray & Associates, Inc.'s independent action at the time of the issuance of said policy and that said coverage would be contrary to and in violation of the terms and provisions of the insurance policy.\\\" Answers were filed, the cause went to trial, and the court adjudged and decreed that the boat and motor operated by defendant Jesse I. Hearn at the time and place of the occurrence described in plaintiff's petition were insured against comprehensive personal liability under policy No. MR1023764; that plaintiff is obligated to pay, on behalf of the Hearns, all sums which they shall become obligated to pay as damages by reason of the occurrence, and that plaintiff is obligated to defend any suit now or hereafter filed against the Hearns seeking damages by reason of the occurrence.\\nRepublic has appealed to this court on the theory that the amount m controversy is in excess of $15,000, to wit: $25,000.\\n\\\"For the supreme court to have appellate jurisdiction because of the amount in dis pute, the record must affirmatively show with certainty that the amount in dispute, regardless of all contingencies, exceeds $15,000, and this court will not indulge in speculation and conjecture as to the amount in dispute or the value of the relief sought in order to bring a case within its limited appellate jurisdiction. In Emerson Electric Mfg. Co. v. City of Ferguson, Mo., 359 S.W.2d 225, 228 [2], this court held that the minimum jurisdictional amount must be affirmatively, established by the record and the amount in dispute is not what may be affected by the result of the case but what is directly involved in the suit.\\\" Jackson County Pub. W. Sup. Dist. v. Ong Aircraft Corp., Mo., 388 S.W.2d 893, 895-896 [2].\\nThis appeal is from a judgment denying relief sought by appellant but the record does not disclose the pecuniary value of the relief sought or the financial loss to the respondents if the relief sought be granted. \\\"The relief sought here is a declaration concerning existence of liability if negligence is established; the question of how much is 'contingent' because the circumstance giving rise to a liability may never arise.\\\" Washington University Law Quarterly, Vol. 1964, p. 656; National Surety Corp. v. Burger's Estate, Mo., 183 S.W.2d 93. Appellant apparently appeals on the theory that the amount in controversy is the maximum amount of liability under its policy, i. e., $25,000, but the record does not show the amount of any claims, and the respondents Bond and McGinness may never recover in any amount against respondents Hearn, let alone in an amount exceeding $15,000. The mere chance of a judgment or settlement exceeding $15,000 does not establish jurisdiction here. Cotton v. Iowa Mut. Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246, 249 [3-5].\\nThe record discloses no other ground for jurisdiction in this court and the appeal is, accordingly, transferred to the Kansas City Court of Appeals.\\nHOUSER and WELBORN, CC, concurs.\\nPER CURIAM:\\nThe foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.\\nAll concur.\"}"

mo/10139966.json

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+"{\"id\": \"10139966\", \"name\": \"Josephine CROCKWELL and Robert Crockwell, Plaintiffs-Respondents, v. John T. OLDANI, Defendant-Appellant\", \"name_abbreviation\": \"Crockwell v. Oldani\", \"decision_date\": \"1966-12-20\", \"docket_number\": \"No. 32415\", \"first_page\": \"701\", \"last_page\": \"706\", \"citations\": \"410 S.W.2d 701\", \"volume\": \"410\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"St. Louis Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:03:29.925360+00:00\", \"provenance\": \"CAP\", \"judges\": \"WOLFE, P. J., and RUDDY, J., concur.\", \"parties\": \"Josephine CROCKWELL and Robert Crockwell, Plaintiffs-Respondents, v. John T. OLDANI, Defendant-Appellant.\", \"head_matter\": \"Josephine CROCKWELL and Robert Crockwell, Plaintiffs-Respondents, v. John T. OLDANI, Defendant-Appellant.\\nNo. 32415.\\nSt. Louis Court of Appeals. Missouri.\\nDec. 20, 1966.\\nMotion for Rehearing or to Transfer to Supreme Court Denied Jan. 17, 1967.\\nHeneghan, Roberts & Cole, Robert G. Burridge, St. Louis, for defendant-appellant.\\nVincent M. Igoe, St. Louis, for plaintiffs-respondents.\", \"word_count\": \"2934\", \"char_count\": \"16740\", \"text\": \"ANDERSON, Judge.\\nThis is a damage suit brought by Robert Crockwell and Josephine Crockwell, husband and wife, against John T. Oldani. The petition in said suit was in three counts. By Count I, Mrs. Crockwell sought damages for personal injuries alleged to have been sustained by her as a result of a collision between a car she was driving and an automobile being driven by defendant. In Count II, Robert Crockwell sought damages for the loss of his wife's companionship, society and consortium, alleged to have been suffered by him as a result of said accident. In Count III, both plaintiffs sought recovery for the damages to the car which resulted from said collision. There was a verdict for Mrs. Crockwell on Count I for $1,000.00; for the husband, Robert Crock-well on Count II for $200.00 and for both plaintiffs on Count III in the sum of $800.-00. From the judgment on said verdicts, defendant has appealed.\\nThe case was submitted solely on failure to slacken speed and swerve under the humanitarian doctrine. Appellant contends that no submissible case was made under the theory submitted, and that the court erred in sending to the jury room, at the request of the jury, a note explaining plaintiff's testimony as to the directions shown on certain photographs in evidence, then in the possession of the jury. We will refer to the parties as plaintiffs and defendant.\\nThe collision occurred at about 9:45 a.m. October 23, 1962, at the intersection of Althea and Sterling Avenues. Both are public thoroughfares in St. Louis County. Both streets have blacktop paving about 25 feet wide and with drainage ditches on the sides. It was not shown how deep these drainage ditches were, or how far they were from the edge of the pavement. However, plaintiff testified that \\\"[t]hey do park on the sides\\\" of Sterling. Photographs were introduced showing Sterling Avenue at and near the intersection which might have revealed the approximate distance, but defendant-appellant did not lodge these exhibits in this court. There was no curbing on either street at the time of the accident. Sterling Avenue runs east and west. Althea is a north and south street. The streets intersect at right angles. There were no painted lines marking the center of either street. There were no stop or traffic control markers on either street at the intersection, and no traffic control lights. Mrs. Crockwell, prior to and at the time of the collision, was operating a 1959 Ford Galaxie automobile westwardly on Sterling. Defendant was driving a 1962 Chevrolet south on Althea. Title to the Ford Galaxie was in the name of both plaintiffs. The streets were dry at the time. There was a row of trees on the east side of Althea. It does not appear how close to the intersection this row of trees was, the kind of trees they were, or their size. If appellant had lodged the exhibits with this court, we would be better informed as to the matters. However, these trees did not completely shut off the view to the east of one approaching Sterling, for defendant testified, \\\" you could still see a little.\\\" There were cars parked on the east side of Althea up to within a half car length of the intersection.\\nMrs. Crockwell testified she had been traveling about 20 miles and hour, and as she approached the intersection, reduced the speed of her car to about 15 miles per hour. She then looked to the left and to the right, but did not see anyone approaching the intersection. She then started forward to enter the intersection, at which time she again looked to the right and saw defendant's car approaching the intersection. Defendant's car, at that time, was about three car lengths from the intersection traveling about 25 miles per hour. She saw defendant's car over the tops of cars parked on Althea. She further testified that her car was about a car length from the intersection when she first saw defendant's car, but later, in her testimony, estimated the distance at one and one-half car lengths. When she first saw defendant's car she thereafter applied the brakes on her car as she was entering the intersection. The brakes took hold, but when the front of her car reached the center line of Althea, her car collided with defendant's automobile. She stated that at the time of the impact, her car was almost at a complete stop.\\nPlaintiff further testified that she watched defendant's car from the time she first saw it until the collision; that after she first observed defendant's car, it \\\"slowed up a little and then it started to go on into the intersection;\\\" that it was in both traffic lanes of Althea and came toward her at an angle; that the force of the collision pushed her car a distance of about three feet; that defendant's car hit her car, pushed it, and then hit it again; that when the cars came to rest they were side by side facing southwest, west of the center line of Althea and \\\"on the wrong side of Sterling;\\\" that the front of her car came to rest west of the center of Althea; and that there was glass in the street after the impact on the west side of Althea and on the north side of Sterling.\\nThe transcript shows the following testimony by Mrs. Crockwell: \\\"Q. At the last split second before the moment of impact how much space was there between the front of your car and the west side of Althea? A. Almost a whole lane. The Court: Lane of what? A. Road. Q. In terms of the width of a car, how wide would that lane be ? A. It would be one car width wide.\\\"\\nAfter the collision, plaintiff observed skid marks running in a southwardly direction along the west lane of Althea about four feet in length. These stopped about two feet from the point of impact. There were skid marks running in a westwardly direction on Sterling. These were about six feet long and extended up to the point of impact.\\nOn cross-examination, plaintiff testified that in estimating a car length, \\\"I was using my car, I guess, in estimating that. I guess it's maybe eight foot or ten foot long.\\\" Plaintiff was then read a part of testimony she had given in a deposition wherein she testified that she guessed she saw the top of defendant's car when it was 20 or 25 feet from the intersection, and asked if that was correct. Her answer was, \\\"Yes, I would say so.\\\"\\nDefendant testified that he approached the intersection at approximately 15 or 20 miles per hour; that he looked left into Sterling when he was about to enter the intersection, but saw nothing; that he could see seven or eight feet into Sterling at the time; that after looking to the left he looked to the right and entered the intersection at a speed of about 15 miles per hour; that he got a slight glimpse of the Crockwell car just before the collision; that he then applied the brakes on his car; that his speed at the moment of impact was no more than fifteen miles per hour; that just before the collision when he got a glimpse of the Crockwell car, he \\\"sort of swung to the right;\\\" that as he entered the intersection, he was traveling \\\"mostly to the right side,\\\" and at the time of the impact was more on the right side; that very little of his car was over the center of Althea; that his left front fender was pushed in over the left front tire; that from what he could see it was the right fender of the Crockwell car that was involved.\\nOn cross-examination, he testified that when he first looked to the left he was about 10 feet from the intersection; that there was nothing to obstruct his view east on Sterling at the time; that when he was 10 feet from the intersection, he imagined he could see 7 or 8 feet east on Sterling. Defendant gave the following testimony: \\\"Q. Would there be enough room between the center line of Althea- \\u2014 the imaginary center line \\u2014 and the west side of Althea for your car, the car you were driving at the time, to have passed? A. Yes, sir, you could.\\\"\\nDefendant contends that the Court erred in failing and refusing to sustain his motion to set aside the verdict and judgment and enter judgment for defendant in accordance with his motion for a directed verdict. In support of this assignment, it is urged that under the evidence presented, a jury could not reasonably find when plaintiff, Josephine Crockwell, entered the zone of imminent peril without resort to speculation and conjecture, and that the evidence conclusively shows that defendant could not slacken and swerve his automobile after she entered the zone of peril.\\nThe fundamental principles which govern the application of my humanitarian doctrine have been stated many times, and are not in dispute in the instant case. The first and basic fact for its imposition is the position of imminent peril. It must be certain, immediate and impending; and a mere likelihood or bare possibility that a collision will occur is not sufficient to show its existence. Banks v. Morris & Co., 302 Mo. 254, 257 S.W. 482; Wilson v. Toliver, 365 Mo. 640, 285 S.W.2d 575. Other necessary elements are, notice to defendant, either actual or constructive of plaintiffs' peril, and defendant's ability thereafter to avert the collision with the means at hand without injury to himself and others. Whether these elements are present in a particular case is a jury question where there is evidentiary basis in support of each element from which a jury could reasonably find their existence. In determining wheth er such a case was made, the evidence must be viewed in the light most favorable to plaintiff.\\nAlso important here is the rule that a plaintiff is not conclusively bound by his or her own estimates of distances or speed. Meier v. Moreland, Mo., 406 S.W.2d 97; Carlson v. St. Louis Public Service Co., Mo., 358 S.W.2d 795.\\nThe zone of peril in this case, and the duty of defendant to take effective action under the humanitarian doctrine submitted could only arise when he saw or by the exercise of the highest degree of care should have seen and realized that Mrs. Crockwell, who was approaching the path of his car, was so close to it that she could not stop before reaching it.\\nMrs. Crockwell testified that she first saw defendant's car when her automobile was about one car length or one car length and a half from the intersection. She estimated a car length at 8 or 10 feet, so that we will take it that her estimate of the distance was 12 or 15 feet east of the intersection at the time. She was traveling about 15 miles per hour. When she first saw defendant's car, it was three car lengths north of the intersection, or 24 to 30 feet. Defendant testified that he approached the intersection at a speed of 15 to 20 miles per hour and entered the intersection at 15 miles per hour. He testified that when he got to within 10 feet of the intersection, he looked to his left and could see only 7 or 8 feet into Sterling but saw nothing at the time. However, the jury could have rejected this testimony for according to his own testimony, there was nothing to obstruct his view except a row of trees which did not completely shut off his view, he having testified he could still \\\"see a little;\\\" and since Mrs. Crockwell could see defendant when he was thirty feet from the intersection, a jury could reasonably find that defendant, when at that distance, could have observed plaintiff who was then, according to her testimony 12 to 15 feet east of the intersection. Plaintiff immediately applied the brakes on her car when she first observed defendant and thereafter came to almost a stop when the front of her car reached the center of Althea. Defendant, according to his testimony, looked toward the east when he was 10 feet from the intersection and, failing to see what he could have seen, continued across the intersection at 15 miles an hour without once again looking to his left. Mrs. Crockwell, at the time he said he looked to the left, was within the intersection and was attempting to reduce the speed of her car. Defendant never saw Mrs. Crockwell's car until an instant before the collision when it was too late for him to take any effective action to avoid the collision He admitted that there was enough room between the center line of Althea and the west side of Althea for his car to have passed in front of the Crock-well car.\\nTaking the evidence in the light most favorable to plaintiffs, defendant was thirty feet from the intersection when he could have seen plaintiffs' car about to enter the intersection. A jury could, without speculation or conjecture, reasonably find that Mrs. Crockwell was then in a position of peril, which fact defendant should have realized had he been in the exercise of the highest degree of care. He was then 34 or 35 feet from the point of impact. Traveling at 15 miles per hour, he would cover about 22 feet per second. Allowing three-fourths of a second reaction time, he still had 19 or 20 feet left for the brakes to respond to the pressure on the brake pedal and the wheels to respond to a turn of the steering wheel, which movements would have avoided a collision between the two cars. A jury could reasonably find there was no other traffic to prevent a swerve to the right into Sterling, or for defendant to remain on Althea, swerve to the right, and pass in front of the Crockwell car. In our judgment, plaintiff made a case for the jury, and that a verdict could be returned in plaintiffs' favor without resort to speculation and conjecture.\\nAt the trial, Mrs. Crockwell identified four photographs which were introduced into evidence as plaintiffs' Exhibits A, C, E and F. She testified that Exhibit A was a photograph of Althea showing a view to the south, the direction defendant's car was traveling; that Exhibit C was also a photograph of Althea showing a view southward; that Exhibit E was a photograph of Sterling showing a view west-wardly along said street; and that Exhibit F was a photograph of Althea showing a view toward the South. These photographs were then offered in evidence, at which time defendant's counsel stated he had no objection to the offer. These exhibits were given to the jury when they were sent to the jury room to deliberate on their verdict. Apparently, this was with the consent of counsel, for the record shows no objection by either party to it.\\nThereafter, the following occurred:\\n\\\"The Court: Let the record show that at approximately 4:55 P.M. the buzzer in the jury room sounded; the bailiff went to the jury room door, and a member of the jury handed him four photographs, Plaintiffs' Exhibits A, C, E and F, together with a note as follows: 'Please identify directional views and streets on the photographs.' \\\"\\nThe record further shows that the judge inquired of defendant's counsel if he had any objection to the Court's complying with the jury's request contained in said note. Defendant's counsel replied that he did, and then stated his objections in quite some detail, some of which have been preserved and are now urged as grounds for reversal of the judgment. The Court overruled the objection and sent to the jury room the following note:\\n\\\"In response to the jury's request for an identification of the directional views and streets on the four photographs handed to the bailiff, Mrs. Josephine Crockwell testified, according to the Court's record, that Plaintiffs' Exhibits A, C and F were views of Althea Street looking to the south, and that Plaintiffs' Exhibit E was a view of Sterling Street looking to the east.\\\"\\nDefendant's counsel then made further objection to the Court's action, and moved for a mistrial, which motion was by the court overruled.\\nOn this appeal, defendant contends that the court's action in complying with the jury's request was reversible error. In support of this assignment, it is urged that its effect was to enable plaintiffs to reopen the case, and clarify their case as to an essential ingredient thereof, to wit, the geography of the scene of the accident, and was a comment on the weight of the evidence and the credibility of Mrs. Crock-well's testimony which was clearly an invasion of the province of the jury.\\nAssuming, without deciding, that the court erred in its action, we are convinced that such error, if any, did not materially affect the merits of the action. Such being the case, we may not reverse the judgment. See Civil Rule 83.13(b), V.A.M.R.\\nThe judgment is affirmed.\\nWOLFE, P. J., and RUDDY, J., concur.\"}"

mo/10144558.json

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+"{\"id\": \"10144558\", \"name\": \"COMMERCE TRUST COMPANY, Plaintiff-Appellant, v. Edward F. MORGAN et al., Defendants-Respondents\", \"name_abbreviation\": \"Commerce Trust Co. v. Morgan\", \"decision_date\": \"1969-10-06\", \"docket_number\": \"No. 25052\", \"first_page\": \"492\", \"last_page\": \"494\", \"citations\": \"446 S.W.2d 492\", \"volume\": \"446\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kansas City Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T21:42:57.253903+00:00\", \"provenance\": \"CAP\", \"judges\": \"MAUGHMER, C., concurs.\", \"parties\": \"COMMERCE TRUST COMPANY, Plaintiff-Appellant, v. Edward F. MORGAN et al., Defendants-Respondents.\", \"head_matter\": \"COMMERCE TRUST COMPANY, Plaintiff-Appellant, v. Edward F. MORGAN et al., Defendants-Respondents.\\nNo. 25052.\\nKansas City Court of Appeals. Missouri.\\nOct. 6, 1969.\\nDennis G. Muller, Muller & Muller, Kansas City, for appellant.\\nMcLaughlin & Vanet, W. Hugh McLaughlin, M. Randall Vanet, Kansas City, for respondents.\", \"word_count\": \"1226\", \"char_count\": \"7419\", \"text\": \"SPERRY, Commissioner.\\nThis is an appeal by plaintiff from the order of the circuit court setting aside a default judgment in favor of plaintiff against defendants in the sum of $1,213.76.\\nDefendants have suggested and argued that the appeal should be dismissed for failure to comply with certain rules. The supplemental abstract, filed herein, indicates that such contention should be, and it is, denied.\\nThe record discloses that defendants purchased an automobile and as consideration therefor executed their note, secured by chattel on the automobile, in the amount of $3,095.99; that plaintiff became the owner of said note and instituted suit thereon against defendants; that defendants were non-residents and attachment and summons issued March 10, 1967; that on March 14, 1967, after garnishment had been issued, defendants filed entry of appearance, signed by them and their attorneys, McLaughlin and Vanet, whereupon garnishment was released; that the automobile was delivered to plaintiff; that plaintiff sold the automobile, realizing $1,-700.00 therefor; that nothing further was paid on the note; and that defendants filed no answer or other pleadings, at any time prior to entry of judgment on August 28, 1967.\\nAt a peremptory call, on May 12, 1967, of a published docket of Division 12 of the Jackson County Circuit Court listing this case, plaintiff appeared and the court set the case for hearing on August 28, 1967. After further publication in July, 1967, in the Daily Record newspaper, published in Jackson County, listing this case and the hearing date thereof, plaintiff appeared on August 28, 1967, pursuant to such notice. On the last mentioned date, no pleading having been filed by defendants, the court entered default judgment as heretofore stated. On January 20, 1968, plaintiff caused to be issued execution and garnishment in aid thereof. After service and, on \\u2022March 7, 1968, defendants filed motion to set aside the judgment for irregularity, and to quash execution.\\nIn this motion defendants pleaded that both had filed bankruptcy proceedings on April 18, 1967, had listed plaintiff as a creditor, that plaintiff was notified thereof; that a discharge was entered in the bankruptcy proceedings on July 18, 1967. It was further alleged that there was published in the Daily Record, under trial settings, notice that the instant suit was set for trial on August 28, 1967; that such notice did not contain the name of defendants' counsel; that neither defendants nor their counsel received notice of the August 28, 1967, setting prior thereto or within 30 days thereafter; that Rule 15 of the Rules of the Circuit Court of Jackson County provides, in part as follows:\\n\\\"1. Each civil trial division shall set its trial docket not less than four weeks in advance of the trial date, and shall give notice thereof in The Daily Record and Kansas City News Press or other legal publication or post in the Circuit Clerk's office a list of all cases set for trial each week in the order to be tried, which list shall contain the names of trial counsel, and each division shall send to the Clerk of the Court en banc a copy of said list. (Emphasis ours.)\\nIt was further alleged that failure to include the name of defendants' counsel in the published notice was contrary to Rule 15, supra, and constituted such an irregularity on the record as to require that default judgment be set aside.\\nPlaintiff filed verified statement in opposition to the motion stating that, at the time defendants entered their appearance, their counsel indicated to plaintiff's counsel that they would implead a third party defendant but were entering their appearance at that time in order to procure release of the garnishment; that no pleading was thereafter filed; that plaintiff appeared in court on the date the judgment was entered and informed the court of the above facts; that evidence was heard and the judgment was entered.\\nIt is plaintiff's contention that Circuit Court Rule 15, supra, is in conflict with Supreme Court Rule 43.01 V.A.M.R., in that it requires, as defendants contend, that notice must be given to a defaulting defendant before default judgment may be entered. Rule 43.01, supra, is as follows:\\n\\\"(a) Service \\u2014 When Required. Every pleading subsequent to the original petition, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, and similar paper which by statute, court rule or order is required to be served, shall be served upon each of the parties affected thereby, but no service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in this code. (Emphasis ours.)\\nIn the case at bar defendants' entry of appearance served the same purpose as if summons had been served requiring them to appear and file answer. Mahan v. Baile, 358 Mo. 625, 216 S.W.2d 92, 94.\\nCivil Rule 50.01, V.A.M.R., provides as follows:\\n\\\"Courts of Appeals and trial courts may make rules governing the administration of judicial business if the rules are not contrary to the rules of the Supreme Court, to the Constitution or to statutory law in force.\\\"\\nA casual examination and comparison of the language used in Rule 15, supra, with that appearing in Rule 43.01, supra, indicates that there is conflict between the two rules.\\nIn Wade v. Wade, Mo.App., 395 S.W.2d 515, the court considered a case where the Circuit Court of St. Louis County had, for irregularity on the record, set aside a default divorce decree because of non-compliance with Circuit Court Rule 26-E requiring the attorney for plaintiff, in \\\"non-contested domestic relations matters, where defendant is not represented by attorney and service has been other than by publication, it shall be the duty of the attorney for plaintiff to notify the defendant by mail of the date of the trial. Judge Broaddus observed that the sole ground mentioned by the court in its memorandum setting aside the judgment, was the fact that an irregularity appeared on the face of the record, to-wit, violation of Rule 26-E, St. Louis County Circuit Court Rules.\\nThe court held that Rule 26-E, supra, is contrary to Supreme Court Rule 43.01(a) because it required plaintiff, in a default case, to give notice other than that given by summons. It was held (page 518) that a court may not enforce a rule that would deprive a party of the right given him by the law, or granting the right upon terms more onerous than those fixed by law. The decision in Wade v. Wade, supra, is cited with approval on this point in Meadowbrook Country Club v. Davis, Mo.Sup., 421 S.W.2d 769, 774.\\nThe judgment is reversed and the cause is remanded with directions that the original default judgment in favor of plaintiff and against defendants, heretofore set aside by the trial court, be reinstated.\\nMAUGHMER, C., concurs.\\nPER CURIAM:\\nThe foregoing opinion by SPERRY, C., is adopted as the opinion of the Court.\\nAll concur.\"}"

mo/10144840.json

@@ -0,0 +1 @@
+"{\"id\": \"10144840\", \"name\": \"STATE of Missouri, Respondent, v. Willie Chester TURNER, Appellant\", \"name_abbreviation\": \"State v. Turner\", \"decision_date\": \"1970-10-12\", \"docket_number\": \"No. 55014\", \"first_page\": \"280\", \"last_page\": \"282\", \"citations\": \"458 S.W.2d 280\", \"volume\": \"458\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:34:24.926640+00:00\", \"provenance\": \"CAP\", \"judges\": \"All of the Judges concur.\", \"parties\": \"STATE of Missouri, Respondent, v. Willie Chester TURNER, Appellant.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Willie Chester TURNER, Appellant.\\nNo. 55014.\\nSupreme Court of Missouri, Division No. 2.\\nOct. 12, 1970.\\nJohn C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.\\nJames J. Amelung, Ronald C. Willen-brock, Holtkamp & Amelung, St. Louis, for appellant.\", \"word_count\": \"858\", \"char_count\": \"4917\", \"text\": \"FINCH, Judge.\\nDefendant appeals from a judgment sentencing him to imprisonment for five years which was imposed by the trial judge after a jury found defendant guilty of burglary in the second degree. The defendant was prosecuted under an indictment which charged him under the Habitual Criminal Act with burglary of a beauty shop with intent to steal articles kept therein and with burglariously stealing specified articles from the shop. At the close of all the testimony, the prosecuting attorney nolle prossed the charge of stealing and only the charge of burglary was submitted to the jury.\\nThe Fran-Del Beauty Salon is located at 1722 Franklin in the City of St. Louis. The front entrance and adjoining windows of the salon were protected by a wire mesh gate which was fastened with a padlock. These were locked when the shop closed during the evening of April 15, 1969.\\nEarly on the morning of April 16, two police officers responded to a call indicating that a burglary was occurring at the above location. When the police car approached the beauty shop, the officers therein observed three negroes emerging from a broken front window of the beauty shop. When the men saw the police car, they ran into an areaway between the beauty shop and an adjoining restaurant. Officer Bayless, who was driving the patrol car, jumped out and caught one of the men just a few feet into the areaway. The one he caught at that point was the third person seen emerging from the broken window as the car drove up. This person, who was the defendant, was carrying a paper shopping bag which he threw away as he was being apprehended. Defendant was never out of the sight of Officer Bay-less from the moment he first was observed coming out of the broken window until he was apprehended. The paper bag which defendant had been carrying contained items such as clippers, ladies' hair pieces, curlers, etc., which were identified as having been taken from the beauty shop.\\nDefendant presents two questions on this appeal, the first of which involves the admission into evidence of two exhibits. Exhibit 4 was a tire tool which was found by the officers on the sidewalk adjacent to the broken store window. Exhibit 5 was part of a broken padlock which was found in the pocket of the defendant when he was apprehended. The complaint asserted by the defendant is that the tire tool was not identified with the defendant or the alleged crime in any way and that the part of a padlock was not identified as being the property of the victim or connected in any way with the crime.\\nThe tire tool did not belong to the owner of the beauty shop and did not come from the shop. Of course, there was no testimony that anyone saw the defendant in possession of or using the tire tool, but it was found on the sidewalk immediately adjacent to where the store window had been broken and where the padlock had been forced or broken in order to open the wire mesh gate. With reference to the part of the padlock, the owner of the beauty shop testified that it was similar to the padlock with which the wire mesh gate had been locked.\\nBoth of these exhibits were admitted into evidence without objection. Only after the jury had retired for its deliberations was the question raised and an objection to the receipt of these exhibits in evidence made. That, of course, was too late and was properly overruled. On motion for new trial and on this appeal, defendant asks us to consider the question as plain error under Supreme Court Rule 27.20(c), V.A.M.R. We find no merit in this contention and we decline to consider the question as plain error. State v. Worley, Mo., 353 S.W.2d 589; State v. Burnett, Mo., 429 S.W.2d 239.\\nThe second contention by defendant is that by nolle pressing the charge of stealing, the state was permitted to amend a grand jury indictment, which it has no power to do, citing State v. Holbert, Mo.App., 399 S.W.2d 142. Actually, what occurred was not an amendment of the in dictment such as occurred in Ho-lbert. Here, the prosecuting attorney simply concluded to nolle pross the charge of stealing, which he had a right to do. State ex inf. Dalton v. Moody, Mo., 325 S.W.2d 21. This action was beneficial rather than detrimental to the defendant because it meant that he could be convicted and sentenced on only one charge instead of two... At the defendant's request, the trial court gave Instruction 1-A which told the jury that the charge of stealing had been withdrawn and that they should not consider it in arriving at their verdict.\\nThe judgment is affirmed.\\nAll of the Judges concur.\"}"

mo/10158011.json

@@ -0,0 +1 @@
+"{\"id\": \"10158011\", \"name\": \"AUTOMOBILE CLUB OF MISSOURI, a Corporation, and George C. Mackey, and Mr. and Mrs. Oscar Cotta, Respondents, v. CITY OF ST. LOUIS, John J. Dwyer, Treasurer of the City of St. Louis, and John H. Poelker, Comptroller of The City of St. Louis, Appellants\", \"name_abbreviation\": \"Automobile Club of Missouri v. City of St. Louis\", \"decision_date\": \"1960-04-11\", \"docket_number\": \"No. 47603\", \"first_page\": \"355\", \"last_page\": \"365\", \"citations\": \"334 S.W.2d 355\", \"volume\": \"334\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T22:46:59.976897+00:00\", \"provenance\": \"CAP\", \"judges\": \"LEEDY, P. J., and EAGER and STORCKMAN, JJ., concur.\", \"parties\": \"AUTOMOBILE CLUB OF MISSOURI, a Corporation, and George C. Mackey, and Mr. and Mrs. Oscar Cotta, Respondents, v. CITY OF ST. LOUIS, John J. Dwyer, Treasurer of the City of St. Louis, and John H. Poelker, Comptroller of The City of St. Louis, Appellants.\", \"head_matter\": \"AUTOMOBILE CLUB OF MISSOURI, a Corporation, and George C. Mackey, and Mr. and Mrs. Oscar Cotta, Respondents, v. CITY OF ST. LOUIS, John J. Dwyer, Treasurer of the City of St. Louis, and John H. Poelker, Comptroller of The City of St. Louis, Appellants.\\nNo. 47603.\\nSupreme Court of Missouri, Division No. 2.\\nApril 11, 1960.\\nThomas J. Neenan, City Counselor, John J. Shanahan, Associate City Counselor, Eugene P. Freeman, Associate City Counselor, St. Louis, Mo., for appellants.\\nGreen, Hennings, Henry & Evans, Robert D. Evans, John R. Green, II, Lewis C. Green, St. Louis, Mo., for .respondents.\", \"word_count\": \"5107\", \"char_count\": \"30959\", \"text\": \"ELMO B. HUNTER, Special Judge.\\nThis is an action for declaratory judgment and injunction involving the interpretation and validity of certain ordinances of the City of St. Louis relating to the installation of parking meters and the collection and disposition of fees and fines thereunder.\\nPlaintiffs-respondents are the Automobile Club of Missouri, a corporation, George C. Mackay and Mr. and Mrs. Oscar Cotta, individuals, all residents and taxpayers of the City of St. Louis, and all of whom are conceded to be proper parties. Defendants-appellants are the City of St. Louis, John J. Dwyer, Treasurer, and John H. Poelker, Comptroller of the city.\\nPlaintiffs filed their petition for declaratory judgment and injunction on July 19, 1958, for the purpose of determining the validity of Ordinances 45307, 45771, 48437, 48438, 48484, 48897, 48898 and 49071 of the City of St. Louis.\\nOf these eight ordinances the first four mentioned either had been repealed or had expired prior to the time the petition was filed. The question of their validity is moot, and we do not undertake to pass on it.\\nOrdinance 48484, with amendments to be noted shortly, is the current Parking Meter Ordinance of St. Louis. It provides for a Parking Meter Commission, establishes its powers and duties; provides for the installation of parking meters and zones; for parking meter fees and for the enforcement of the ordinance and fines for violation thereof. Ordinances 48897 and 48898 amend Sections Six and Twelve of the Parking Meter Ordinance, relating .respectively to meter fees and fines. Ordinance 49071 amends Section Ten of the Parking Meter Ordinance by authorizing the transfer in fiscal year 1958-59 from parking meter funds to general revenue a sum not to exceed $350,000 of which sum $200,000 had been transferred prior to the filing of this suit.\\nThe trial court declared Section Six of Ordinance 48484 invalid as vesting in the commission arbitrary power to set parking fees at less than the designated maximum without requisite standards; Section Ten invalid for making fines for violation of the Parking Meter Ordinance a part of the parking meter fund, declaring \\\"such fines belong to the general revenue of the City\\\"; Section Ten also invalid for the reason it conflicts with Section 304.120, RSMo 1949, V.A.M.S.; Ordinance 48897, passed June 19, 1958, invalid in that it attempts to vest in the Parking Meter Commission power to fix parking meter fees within minimum and maximum limits, and eliminates the Zones provided in Section Six of Ordinance 48484; and Ordinance 49071, approved July 14, 1958, invalid \\\"because it purports to transfer parking meter funds to the general revenue of the City, for general revenue purposes, and to authorize the use of parking meter funds for furthering the regulation of traffic including off-street parking for cities.\\\"\\nAdditionally, the trial court enjoined defendants: (1) from mingling any fines collected for parking meter violations with the parking meter funds; (2) from transferring any parking meter funds to the general revenue fund of the City of St. Louis; and (3) from using or transferring any parking meter funds for off-street parking facilities.\\nAfter an unavailing motion for new trial defendants have appealed.\\nDefendants present their contentions on this appeal under four points and authorities. We will consider all of them but not in their numerical order.\\nDefendants contend the trial court erred in determining that Section Six of Ordinance 48484, the current Parking Meter Ordinance, is unconstitutional, claiming that such section does provide adequate standards for the Parking Meter Commission in the establishment of parking meter fees, and is not an unlawful attempt to delegate legislative power to an administrative agency. It provides:\\n\\\"Section Six. Parking Meter Spaces, Zones and Fees. All parking meter spaces shall be at least twenty (20) feet, more or less, in length and clearly marked. In accordance with public convenience and necessity, there shall be three (3) zones. The Parking Meter Commission shall determine the zone applicable to each street or part thereof upon which meters are to be installed. The fee shall be five (5) cents in a thirty (30) minute zone. The fee shall not be more than one (1) cent for each twelve (12) minutes or five (5) cents for each hour in one (1) hour zones. The fee in a two (2) hour zone shall not be more than five (S) cents for each hour nor more than ten (10) cents for two (2) hours; provided, however, the Commission may set a five (5) cent fee for the full period of the two (2) hour zone. The Commission shall determine the hours during which parking meters shall be operative which, unless otherwise provided by ordinance, shall be between the hours of eight (8) a. m. and seven (7) p. m., except Sundays.\\\"\\nBy the terms of Section Six of the ordinance the Parking Meter Commission is delegated the power to determine the minimum charge and to establish the specific charge not in excess of the established maximum charge for the one and two hour zones. Additionally, the commission is authorized to determine whether the particular zone area is to be designated (1) a thirty minute zone, or (2) a one hour zone, or (3) a two hour zone \\\"in accordance with public convenience and necessity.\\\" Failure of a person using the parking space to pay the fee thusly established by the administrative board is a misdemeanor under the terms of the ordinance. While Section Five of the ordinance contains guideposts for establishing the location of parking meters it does not contain any criterion for determining either the amount of the parking fee or the time limit to be applied, and it is of no aid in considering the validity of Section Six.\\nIt is our view that the trial court was correct in holding that Section Six of Ordinance 48484 unlawfully delegated legislative power to the Parking Meter Commission. The regulation of traffic, including the establishment of the parking zones, with their time limitations, and the fixing of the fees thereof are legislative functions which cannot lawfully be delegated. Cf., Cavanaugh v. Gerk, 313 Mo. 375, 280 S.W. 51; Merchants' Exchange of St. Louis v. Knott, 212 Mo. 616, 111 S.W. 565, 568. It is axiomatic that a legislative body cannot delegate its authority, but alone must exercise its legislative functions. True, it may empower certain officers, boards and commissions to carry out in detail the legislative purposes and promulgate rules by which to put in force legislative regulations. It may provide a regulation in general terms, may define certain areas within which certain regulations may be imposed, and it may empower a board to ascertain the facts as to whether the location affected comes within the general regulation or within the designated or described area or zone. See, State ex rel. Priest v. Gunn, Mo.Sup., 326 S.W.2d 314, 320. Much more than that was attempted here. The ordinance fails to establish a single criterion or standard to guide the commission in fixing the fee to be charged within the maximum mentioned. This is an attempted delegation of a legislative power without adequate standards and is unlawful. Further, \\\"in accordance with public convenience and necessity\\\" is insufficient as a criterion or standard for determining whether the particular meter zone shall be a thirty minute, one hour or two hour zone. Cf., Fairmont Inv. Co. v. Woermann, 357 Mo. 625, 210 S.W.2d 26; State ex rel. Continental Oil Co. v. Waddill, Mo.Sup., 318 S.W.2d 281, 285-286; State ex rel. Triangle Fuel Co. v. Caulfield, 355 Mo. 330, 196 S.W.2d 296.\\nIn Kalbfell v. City of St. Louis, 357 Mo. 986, 211 S.W.2d 911, we recognized that there are exceptions to the general rule that an ordinance vesting such a broad discretion in public officials or boards without furnishing definite conditions, regulations, tests or standards is void, such exceptions generally arising- where the situation requires the placing of some discretion in the officers or board or the discretion relates to the administration of a proper police regulation. We acknowledged the tendency is to extend the discretion reposed in officials to meet the growing complexities of life, the multiplication of such regulations and the increased difficulty experienced in administering the laws. See, State ex rel. Priest v. Gunn, supra. But the establishment of the meter fee does not come within either the spirit or letter of those exceptions. As a practical matter it would be simple for the legislative body either to establish the exact parking fee or to establish legally sufficient standards and criterion for the Parking Meter Commission to follow in establishing the parking fee. This is also true with regard to the establishment of the various time zones.\\nOrdinance 48897, approved June 19, 1958, repealed Section Six of Ordinance 48484 and enacted a new Section Six in lieu thereof, which new section reads:\\n\\\"Section Six. Parking Meter Spaces, Zones and Fees. \\u2014 All parking meter spaces shall be at least twenty (20) feet, more or less, in length and clearly marked. In accordance with public convenience and necessity, the Commission shall establish fees for the use of designated parking spaces in accordance with the following schedule :\\n\\\"(a) A minimum of one (1) cent to a maximum of two (2) cents for each twelve (12) minute space.\\n\\\"(b) Five (5) cents for each thirty (30) minute space.\\n\\\"(c) A minimum of five (5) cents to a maximum of ten (10) cents for each hour space.\\n\\\"(d) A minimum of ten (10) cents to a maximum of twenty (20) cents for each two (2) hour space.\\n\\\"The Commission shall determine the hours during which parking meters shall be operative between the hours of eight (8) a. m. and seven (7) p. m., except Sundays, unless otherwise provided by ordinance.\\\"\\nThis new section provides minimum and maximum fees for the twelve minutes, hour and two hour spaces and delegates authority to the Parking Meter Commission to determine the fee to be charged within the minimum and maximum amount. Other than the vague phrase \\\"in accordance with public convenience and necessity,\\\" no standards, guides or criterion are set out for the commission to follow in determining the particular fee to be charged within the minimum and maximum amount. Certain violations are made a misdemeanor, and if this ordinance is valid, the mere decision of an administrative board as to fee to be paid, unguided by legislatively established standards, would support conviction. As we have said, the fixing of the parking meter fee is a legislative function. Delegation of this function without adequate criterion or standards is unlawful. We note, also, that the ordinance fails to contain any method or criterion for establishing and locating the different time zones it otherwise contemplates. This ordinance is invalid as an unlawful attempt to delegate legislative authority to an administrative board.\\nIn Point II defendants contend the trial court erred in determining that Ordinance 49071 which amends Section Ten of Ordinance 48484 is invalid and violative of Section 82.480, RSMo 1949, V.A'.M.S., and in further enjoining the city from using or transferring any parking meter funds for off-street parking facilities, claiming that statutory section specifically authorizes use of such funds for off-street parking purposes.\\nPlaintiffs assert Ordinance 49071 is unlawful as violating both \\\"the off-street parking statute,\\\" Section 82.480, RSMo 1949, V.A.M.S., and the \\\"Parking Meter Statute,\\\" Section 304.120, RSMo 1949, V.A.M.S.\\nOrdinance No. 49071 provides that after paying the expenses of parking meter purchases, operation and control and associated materials and equipment and all salaries and expenses incidental thereto any uncommitted balance not immediately needed for salary and incidental expense purposes may be used \\\"for the sole purpose of furthering the regulation of traffic including the provision for off-street facilities.\\\" It authorizes the comptroller to transfer to general revenue from the parking meter fund during the fiscal year 1958-59 a sum not to exceed $350,000. Of this named amount $200,000 has been transferred to general revenue. The city has in past years (July 1954 \\u2014 June 1958), under purported authority of other ordinances not before us, withdrawn a total of $78,121.64 from the parking meter fund for purposes of off-street parking.\\nSection 82.470, RSMo 1949, V.A. M.S., authorizes the city to acquire off-street parking facilities. Section 82.480, RSMo 1949, V.A.M.S., empowers the city to finance and pay for off-street parking facilities \\\"by any one or combination of the following methods: (1) General revenue funds, including any proceeds derived from the leasing of said parking facilities; >>\\nPlaintiffs contend this statute does not authorize the city to finance its off-street parking facilities with on-street parking meter funds and support their argument by saying that other cities in this state by another statute are specifically authorized to use on-street parking meter receipts to finance off-street parking facilities. See, Section 71.360, RSMo 1949, V.A.M.S.\\nDefendants respond that the uncommitted parking meter fund balances, referred to in Ordinance No. 49071, are \\\"general revenue funds\\\" which the city is authorized by Section 82.480 to use to finance off-street parking facilities.\\nIn State ex rel. Spink v. Kemp, 365 Mo. 368, 283 S.W.2d 502, 508, we were interpreting a statute providing in part and in effect that Kansas City must appropriate for the use of its police force each fiscal year up to one-sixth of \\\"the general revenue fund of such year.\\\" We ruled that income accruing to the city for certain so-called governmental services and parking meter receipts were to be considered a part of \\\"the general revenue fund of such year\\\" for the purpose of establishing the one-sixth thereof mentioned in the statute.\\nIn Board of Commissioners of City of Newark v. Local Government Board, 133 N.J.L. 513, 45 A.2d 139, the New Jersey Supreme Court held that income from a municipality's parking meters was not a \\\"dedicated revenue\\\" within the budget law, but was a \\\"general revenue\\\" of the city, notwithstanding that such income was applicable to the general function of regulating and controlling traffic and installing and operating the meters.\\nNeither the Missouri constitution nor any statute dedicates or earmarks on-street parking meter receipts as such for any special or limited purpose. It is generally recognized that, if properly authorized, on-street parking meter fees may be used for off-street parking purposes. Petition of City of Liberty, Mo.Sup., 296 S.W.2d 117; Bowman v. Kansas City, Mo.Sup., 233 S.W.2d 26.\\nIn City of Liberty, supra, 296 S.W.2d loc. cit. 121, we quoted from Skidmore v. City of Elizabethtown: \\\"We think it is clear that the matter of parking, both on-street and off-street, is all part of the main traffic regulation problem, and therefore there is nothing improper in utilizing excess revenues from the parking meters to meet the costs of the overall traffic regulation police problem, or in fixing the parking meter fees at an amount that will produce such excess revenue.\\\"\\nIf the statute had mentioned only \\\"general revenue funds\\\" and stopped there it is our view that these uncommitted surplus funds described in the ordinance would be general revenue funds within the purview of the statute. The additional words, \\\"including any proceeds derived from the operation of the parking facilities\\\" as used do not limit or restrict the meaning of \\\"general revenue funds\\\" but rather just emphasize one item that is within the meaning of \\\"general revenue funds\\\" so as to remove any possible doubt about that item. It is merely an illustrative and pertinent example of a general power already granted and not an enlargement of the definition of general revenue funds. Cf., State on inf. Huffman v. ShoMe Power Co-op, 354 Mo. 892, 191 S.W.2d 971; State ex rel. Bibb v. Chambers, 138 W.Va. 701, 77 S.E.2d 297.\\nWe believe that an uncommitted surplus of the type specified in the ordinance is within the legislative contemplation in its authorization of the use of general revenue funds as a means of financing the off-street parking facilities mentioned in the statute.\\nThe fact' that anoth\\u00e9r statute, Section 71.360, RSMo 1949, V.A.M.S., covering cities from 1,000 to 700,000 (thus excluding St. Louis) was amended in 1955 to specifically provide that general revenue funds include proceeds from on-street parking meter receipts and later was amended in 1959 by removing that provision and by making other changes is a factor we may consider in arriving at the legislative intent. We are not persuaded that in the circumstances before us it means any more than that the legislature may have believed there was some uncertainty as to the authority of those cities covered by Section 71.360 to use the on-street parking meter funds for the off-street parking use, and was persuaded to remove any doubt by enacting the express provision. That statute has other provisions also different from those in Section 82.480 and we do not here undertake to interpret it.\\nWe turn to plaintiffs' additional contention that Section 304.120, RSMo 1949, V.A.M.S., \\\"the Parking Meter Statute,\\\" invalidates Ordinance 49071. That statute provides that a municipality may \\\"(5) Regulate the parking of vehicles on streets by the installation of parking meters for limiting the time of parking and exacting a fee therefor or by the adoption of any other regulatory method that is reasonable and practical .\\\" (Italics ours.)\\nThe burden of plaintiffs' contention is that the above quoted language of this statute and especially the word \\\"therefor\\\" limits the parking fee extracted to the costs of administering and enforcing the on-street parking meter ordinance, and thus prohibits its use for other purposes such as the regulation of off-street parking. Defendants contend this language is merely the authorization of \\u00e1 parking meter fee for the privilege of parking without any statutory designation as to what the fee may be used for or statutory limitation as to what expenses it may pay.\\nWe agree with defendants' view of the statute. By its terms it does not undertake to limit parking meter fees to be used for the regulation of on-street parking only, but leaves the subject of use unmentioned.\\nOur conclusion is that the court erred in determining that Ordinance 49071 violated Sections 82.480 and 304.120, RSMo 1949, V.A.M.S.\\nThe trial court also held Ordinance 49071 amending Section Ten of Ordinance 48484 invalid \\\"because it purports to transfer parking meter funds to the general revenue of the city for general revenue purposes \\\" albeit the ordinance itself indicates the transfer is \\\"for the sole purpose of furthering the regulation of traffic including the provision for off-street facilities.\\\"\\nIt is plaintiffs' position that a parking meter ordinance can be sustained as a valid exercise of the police power only if the fees charged bear a reasonable relation to the cost of administering the parking meter system provided by the ordinance, and that, while mathematical exactness is not required, where the fees provided greatly exceed those costs the ordinance is a tax measure and thus not a valid exercise of the police power.\\nIt is defendants' position that parking meter fees collected under the police power can be used for the broader purpose of traffic regulation, and that the fact the fees provided exceed the cost of administering the Parking Meter Ordinance but do not substantially exceed the cost of traffic regulation generally, does not result in the ordinance establishing a tax, as for general revenue, rather than fees reasonably related to the police power exercised.\\nBoth plaintiffs and defendants are in accord that the City of St. Louis has no constitutional, statutory or charter power to levy parking fees under its taxing power.\\nIt is the universally accepted rule that no municipal corporation possesses the authority to levy an excise tax absent proper constitutional, statutory, or charter authority. Siemens v. Shreeve, 317 Mo. 736, 296 S.W. 415; Carter Carburetor Corporation v. City of St. Louis, 356 Mo. 646, 203 S.W.2d 438; Kansas City v. J. I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195. Since St. Louis City has no authority to establish parking meter fees as a tax the parking meter fees in order to be validly imposed must be provided under authority of the police power of the city.\\nThe City of St. Louis is empowered by Article I, Section 1(14) of its charter \\\"To establish streets and regulate the use thereof.\\\" Section 35 of Article I thereof provides: \\\"Incidental powers \\u2014 To exercise all powers granted or not prohibited to it by law or which it would be competent for this charter to enumerate.\\\" Section 304.120(2) RSMo 1949, V.A.M.S., provides that municipalities, such as St. Louis, hy ordinance \\\"may make additional rules of the road or traffic regulations to meet their needs and traffic conditions; (5) Regulate the parking of vehicles on the streets by the installation of parking meters for limiting the time of parking and exacting a fee therefor\\nIt is abundantly clear that the City of St. Louis has full police power to regulate and control all traffic on its streets including the parking thereon. It is likewise clear that its power to regulate parking by the use of parking meters and to collect a fee therefor is granted to it as a police power function of traffic regulation on the public streets.\\nPlaintiffs have introduced a vast amount of evidence in support of their contention that St. Louis City has set its parking fees at such a large sum as to intentionally bring in far more revenue than is needed to administer its parking ordinance and, thereafter, deliberately increased its parking meter fees so as to bring in even greater revenue, thus disclosing that its Parking Meter Ordinance is but a tax measure in the thinly veiled disguise of a police regulatory measure. We are asked to declare it invalid as an unlawful tax measure.\\nIt is unnecessary for us in this case to determine if the validity of these ordinances is to he tested hy the relationship of the parking meter income to' (1) the Parking Meter Ordinance expenses such as the cost of purchase, installation and maintenance of the meters and the enforcement of the parking meter system as plaintiffs contend, or to (2) the expenses of traffic regulation generally as defendants contend.\\nOur reason is that we have already found the Parking Meter Ordinance and its amending Ordinance 48897 to he invalid because Section Six, an integral and essential part thereof, is an unlawful delegation of legislative power to the Parking Meter Commission. While we may assume that St. Louis City through its legislative body will take steps to enact a new parking meter ordinance, we do not know what parking meter fees will be provided therein. We do not know how much revenue will be brought in by such a new ordinance or that such revenue would he greatly in excess of either the cost of establishing and administering the parking meter system or the cost of traffic regulation generally.\\nThe fundamentals are clear. Such newly enacted ordinance would have to be enacted under the police power of St. Louis City to regulate its traffic. It may not be a tax ordinance in the guise of an ordinance enacted under the police power. It is for the court to determine, on all the pertinent facts, whether the primary and fundamental purpose of the ordinance is regulation under the police power or revenue under the tax power. The amount and purpose of revenue brought in hy the ordinance are, of course, important factors in determining whether the ordinance is primarily a regulating one or a revenue one. However, in making such determination the court may look to and consider other relevant facts that bear on the question of the basic nature of the ordinance.\\nWhile the amount of revenue from the ordinance is an important factor in determining the primary purpose and, hence, the validity of the ordinance, the use to which that money can be put is an entirely different question. There is an important distinction between a rule that fees collected by exercise of the police power should bear a reasonable relationship to the cost of regulation, whether it be that of parking or traffic generally, and the rule contended for by plaintiffs, that such fees do not form a part of the general revenue of the city and are restricted in their use to the expenses incurred in administering the parking meter ordinance. In the absence of such money being earmarked or limited in its use hy some constitutional or statutory provision it may be treated by the city as general revenue and subjected to any proper municipal use.\\nWe do not find merit in plaintiffs' contention that because an ordinance is enacted under the police power of the municipality thereby the funds therefrom become earmarked funds which the city must keep in a separate fund with its use limited to expenses arising out of the administration of the ordinance. If this were the law not only this fund but also the literally hundreds of city regulatory measures enacted under its police powers, and their revenues would be subject to such restrictions, and we know of no legal principle compelling such a burdensome result. We find that this contention of plaintiffs is not a valid reason for enjoining the city from transferring from its parking meter funds $350,-000 to the general revenue fund as provided in Ordinance 49071.\\nPlaintiffs also contend that revenue from fines for violation of the Parking Meter Ordinance may not be transferred as provided in Ordinance No. 48898 to the parking meter fund. We know of no reason why the city may not ihake such transfer in the absence of some charter, statute or constitutional provision to the contrary, and our attention has not been directed to any. As we stated in State ex rel. Spink v. Kemp, supra, 283 S.W.2d loc. cit. 514, a city may \\\"for its own purposes, lawfully divide its funds or allocate them in any manner it sees fit or subject its general revenue funds to particular public purposes, so long as it does not do so contrary to statute or its charter.\\\" Placing the revenue from fines in the parking meter fund in effect merely allocates and subjects it to expenses to be paid from that fund and the determination of such allocation in the absence of charter, statute or constitutional provision to the contrary is a proper legislative function of the city.\\nPlaintiffs' final contention is that \\\"the Parking Meter Ordinances in their present form violate the due process, just compensation, equal protection and other clauses of the State and Federal Constitution.\\\" We note that the basis and premise of their contention is that these ordinances are an exercise of the tax power and not of the police regulatory power. Since the parking meter ordinances, to which plaintiffs refer only generally and without specific designation, in their present form have been held invalid as embodying an unlawful delegation of legislative power to an administrative group it is unnecessary for us to consider these constitutional questions. They may or may not arise if and when the city enacts a new Parking Meter Ordinance. In any event, the facts as they then appear will govern, and it would be improper for us to speculate as to what those facts will be.\\nWe are confronted with a situation where the city has a parking meter fund either part or all of which accumulated under invalid ordinances. No one is contending that he is entitled to a refund of any portion thereof, and, as a practical matter, it is impossible for the city to refund this money to those thousands who may have used the parking meters at the times in question. Under the peculiar circumstances, with the fund in existence, with no claimants to the fund and no refund possible, it is our view the city should not now be enjoined from transferring to general revenue and using the parking meter funds for furthering the regulation of traffic including the provision for off-street parking facilities as provided in Ordinance 49071.\\nThis cause is reversed and remanded with instructions to the trial court to set aside its judgment and decree and in lieu thereof to enter a decree declaring Ordinance 48484 in the form in which it was originally enacted and as amended by Ordinance 48897 invalid as attempting an unlawful delegation of legislative power to an administrative tribunal, and permitting the transfers of money as provided by Ordi nance 49071 and 48898; all in accordance with the views and holding expressed in this opinion.\\nLEEDY, P. J., and EAGER and STORCKMAN, JJ., concur.\\n. See, Sammons v. City of Beaufort, 225 S.C. 490, 83 S.E.2d 153; Lynn v. City of Fort Lauderdale, Fla., 81 So.2d 511; State ex rel. Gordon v. Rhodes, 158 Ohio St. 129, 107 N.E.2d 206; Poole v. City of Kankakee, 406 Ill. 521, 94 N.E.2d 416; 2 Yokley, Municipal Corporations, Section 423(f), page 515; Annotation, Municipal Off-Street Parking, 8 A.L.R.2d 373.\\n. Sec, Hendricks v. City of Minneapolis, 1940, 207 Minn. 151, 290 N.W. 428, 430; Owens v. Owens, 1940, 193 S.C. 260, 8 S.E.2d 339; In re Opinion of Justices, 1937, 297 Mass. 559, 8 N.E.2d 179; Annotation \\u2014 Parking Regulations, Validity, 130 A.L.R. 316.\\n. See, Skidmore v. City of Elizabethtown, Ky.1956, 291 S.W.2d 3; City of Hutchinson v. Harrison, 1952, 173 Kan. 18, 244 P.2d 222; Bellington v. Township of East Windsor, 17 N.J. 558, 112 A.2d 268; 9 McQuillin, Municipal Corporations, (3rd Ed.) Section 26.168; City of Rapid City v. Rensch, S.Dak.1958, 90 N.W.2d 380; Chase v. City of Sanford, Ela.1951, 54 So.2d 370; In re Opinion of the Justices, 94 N.H. 501, 51 A.2d 836; 1 Blashfield's Cyclopedia of Automobile Law and Practice, p. 158 (1948); Wilhoit v. City of Springfield, 1943, 237 Mo.App. 775, 171 S.W.2d 95; Hickey v. Riley, 1945, 177 Or. 321, 162 P.2d 371; Harper v. City of Wichita Falls, Tex.Civ.App.1937, 105 S.W.2d 743; Bowers v. City of Muskegon, 305 Mich. 676, 9 N.W.2d 889; Board of Commissioners of City of Newark v. Local Government Board, 1945, 133 N.J.L. 513, 45 A.2d 139.\"}"

mo/10160521.json

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+"{\"id\": \"10160521\", \"name\": \"Pleas CHANDLER, Plaintiff (Respondent), v. Elmer MUELLER, Defendant (Appellant)\", \"name_abbreviation\": \"Chandler v. Mueller\", \"decision_date\": \"1964-03-09\", \"docket_number\": \"No. 49940\", \"first_page\": \"288\", \"last_page\": \"290\", \"citations\": \"377 S.W.2d 288\", \"volume\": \"377\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T00:52:56.772583+00:00\", \"provenance\": \"CAP\", \"judges\": \"STOCKARD and PRITCHARD, CC, concur.\", \"parties\": \"Pleas CHANDLER, Plaintiff (Respondent), v. Elmer MUELLER, Defendant (Appellant).\", \"head_matter\": \"Pleas CHANDLER, Plaintiff (Respondent), v. Elmer MUELLER, Defendant (Appellant).\\nNo. 49940.\\nSupreme Court of Missouri, Division No. 2.\\nMarch 9, 1964.\\nMotion for Rehearing or to Transfer to Court En Banc Denied April 13, 1964.\\nGeorge E. Lee, St. Louis, for appellant, Carter, Bull, Baer, Presberg, Lee & Stan-ard, St. Louis, of counsel.\\nJoseph J. Hanses, Bransford & Floyd, Clayton, for respondent.\", \"word_count\": \"1429\", \"char_count\": \"8232\", \"text\": \"BARRETT, Commissioner.\\nIn this action for $50,000 damages for personal injuries a jury returned a verdict in favor of the defendant. The plaintiff was granted a new trial on the ground that the court had erred in giving the jury instruction 11 and the defendant has appealed. The sole question upon the appeal is whether for any one of several reasons instruction 11 on the plaintiff's contributory negligence was prejudicially erroneous.\\nThe background of the defendant's claim and submission of the plaintiff's contributory negligence was this: On March 17, 1960, about 4 o'clock in the afternoon, the plaintiff, Pleas Chandler, was driving a 1959 Plymouth automobile in a southerly direction on Etzel Avenue, in University City, when it was involved in a collision with the defendant Elmer Mueller's 1959 Oldsmobile as it traveled in a northerly direction. Etzel Avenue is a four-lane street through a residential section and in the area where the parties were traveling the roadway may be described as an elongated S. There was no marked center line but the essentially meritorious and sharply controverted issue upon the trial of the cause was which of the parties, in the language of the plaintiff's principal instruction, had failed \\\"to operate his said automobile to the right of the center\\\" of the street. The only immediate eyewitnesses were the parties and upon the essential issue there was a direct conflict in their testimony. The defendant Mueller claimed that as he traveled north an automobile parked at the east curb pulled out ahead of him, met and passed Chandler's Plymouth. There was also an automobile parked on the west side of the street and, according to Mueller, as the vehicle ahead of him proceeded up the street the plaintiff Chandler in turning out to go around the automobile parked at the west curb traveled across the center line into his Oldsmobile. On the other hand, Chandler said that as he traveled south at a speed of 15 miles an hour he saw Mueller approaching from the opposite direction, swerving back and forth across the street at a speed of 45 miles an hour, and stopped his Plymouth alongside the vehicle parked at the west curb. And, at that moment, he said Mueller drove \\\"clear over on my side of the road.\\\"\\nMueller's hypothesis and submission of Chandler's contributory negligence was that he had failed to keep a proper lookout; specifically, in the language of instruction 11, that he knew or should have known that there was danger of a collision \\\"and if you further find that plaintiff did fail to exercise the highest degree of care to keep a careful and vigilant watch and lookout ahead, and if you further find that if plaintiff had kept such watch and lookout he could have avoided the collision and that his failure to do so was negligent.\\\" It must be carefully noted that Mueller does not claim that during the entire time the vehicles were meeting and approaching the parked automobile and the point of collision Chandler failed to maintain a lookout. To specifically illustrate, the appellant Mueller says \\\"(i)nstruction 11 is not erroneous in permitting the jury to find that as plaintiff approached the rear of the parked automobile he saw or could have seen defendant's car approaching and also in authorizing the jury to find that plaintiff failed to keep a proper lookout.\\\" The circumstances in general are set forth by the appellant and it is said, and this is the crux of the case, that \\\"The jury may well have determined that the plaintiff did see the defendant's automobile as he approached the parked car (as he said he did) but that he thereafter failed to maintain that constant lookout ahead as to all conditions existing on the street at that time and failed to take note of the evident danger which vigilant watch would have revealed.\\\" (Emphasis supplied). In short, it is admitted that as Chandler approached the automobile parked at the west curb he was maintaining a lookout and saw the defendant Mueller approaching but \\\"thereafter\\\" (meaning, presumably, after he was alongside the parked automobile) failed to maintain a lookout and therefore could reasonably be found guilty of contributory negligence.\\nThe defendant had no direct proof of Chandler's failure to maintain a lookout but he urges that the fact is a fair and permissible inference \\\"from the attending surroundings and circumstances.\\\" See v. Kelly, (Mo.App.) 363 S.W.2d 213, 216. The difficulty with the appellant's position is that of necessity he must rely on Chandler's testimony and in so far as it bears on this important issue these are the relevant questions and answers on both direct and cross-examination:\\n\\\"Q. Now when you first saw Mr. Mueller's car, approximately where was it in relation to Etzel Avenue?\\n\\\"A. When he come off of Olive Street Road, he whirled around that street.\\n\\\"Q. Now you saw him just as he turned onto Etzel from Olive Street Road?\\n\\\"A. That's right.\\nij: \\u2021\\n\\\"Q. Before you stopped (alongside the parked automobile), when you first saw Mr. Mueller's car, were you still in that same position or back a little distance from the parked car?\\n\\\"A. I was a little bit back.\\n\\\"Q. How fast would you estimate Mr. Mueller's car was going when he hit you?\\n\\\"A. Oh, he was going about 45 miles an hour, because he knocked me back.\\n\\\"Q. In other words, he hadn't slowed down any?\\n\\\"A. It looked like he got faster, the closer he got to me.\\n*\\n\\\"Q. Show the jury approximately where your car was when you were struck.\\n\\\"A. Mr. Mueller came off of Olive Street Road. He come right on down, kept whirling and turning, so this car right here was parked right here against this curb. I didn't have to pull out, because there's plenty of room, and he had plenty of room, so when I got along here (indicating), he was coming so fast until I blowed my horn. I was blowing my horn when he hit me.\\n\\n\\\"A. When he come off Olive Street Road, he was swerving, going this way and that way. When I seen he was getting close to me, I went to blowing for him to see, to make him open up. He wouldn't, though. He was drinking. He just kept straight at me.\\nifc\\n\\\"Q. When you were going toward this parked car, did you say you saw Mr. Mueller's car swerving back and forth across that street ahead of you?\\n\\\"A. When I got even with that parked car, Mr. Mueller come straight at me.\\n*\\n\\\"Q. In other words, you passed this parked car, you stopped and you were hit, is that it?\\n\\\"A. When I was down to the parked car, I slowed down and when I got to the parked car I stopped still and Mr. Mueller came around; he came just straight after me, and I just stayed there and he just hit me.\\n\\\"Q. What I'm trying to get clear in my mind, why did you stop alongside the parked car? Why didn't you continue and pull out of the way over to the right curb ?\\n\\\"A. I thought he would pull over. I didn't think he would run into me. I didn't think he would run into that car.\\n\\\"Q. You stopped because you thought there was a danger he was going to hit you, did you not?\\n\\\"A. I stopped because he didn't get over.\\\"\\nIt is not a fair, reasonable or permissible inference from this testimony that plaintiff Chandler at any time, certainly not after approaching the parked automobile and the point of collision, failed to keep or maintain a proper lookout and as of course it was prejudicial error to give an instruction submitting that hypothesis as a ground of contributory negligence thus defeating the plaintiff's right of recovery, Dawley v. Hoy, (Mo.) 341 S.W.2d 111, 116. Since the unsupported instruction was prejudi-cially erroneous the court properly granted plaintiff a new trial and the judgment is affirmed.\\nSTOCKARD and PRITCHARD, CC, concur.\\nPER CURIAM:\\nThe foregoing opinion by BARRETT, C., is adopted as the opinion of the court.\\nAll of the Judges concur.\"}"

mo/10181902.json

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+"{\"id\": \"10181902\", \"name\": \"Raymond S. POWERS, Eula R. Creswell, James A. McCullough, Margaret Siress, Bennett R. Wood, M.D., Mrs. Edward Grace, Eugene Downes, Augusta Landweh and Lorenz H. Twillmann (Plaintiffs) Appellants, v. Ray L. JOHNSON, Robert W. Maysack, Laurel Hill Memorial Gardens, Laurel Hill Cemetery Association and Plymouth Securities Company (Defendants) Respondents\", \"name_abbreviation\": \"Powers v. Johnson\", \"decision_date\": \"1957-06-10\", \"docket_number\": \"No. 45078\", \"first_page\": \"899\", \"last_page\": \"902\", \"citations\": \"302 S.W.2d 899\", \"volume\": \"302\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:35:54.109235+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Raymond S. POWERS, Eula R. Creswell, James A. McCullough, Margaret Siress, Bennett R. Wood, M.D., Mrs. Edward Grace, Eugene Downes, Augusta Landweh and Lorenz H. Twillmann (Plaintiffs) Appellants, v. Ray L. JOHNSON, Robert W. Maysack, Laurel Hill Memorial Gardens, Laurel Hill Cemetery Association and Plymouth Securities Company (Defendants) Respondents.\", \"head_matter\": \"Raymond S. POWERS, Eula R. Creswell, James A. McCullough, Margaret Siress, Bennett R. Wood, M.D., Mrs. Edward Grace, Eugene Downes, Augusta Landweh and Lorenz H. Twillmann (Plaintiffs) Appellants, v. Ray L. JOHNSON, Robert W. Maysack, Laurel Hill Memorial Gardens, Laurel Hill Cemetery Association and Plymouth Securities Company (Defendants) Respondents.\\nNo. 45078.\\nSupreme Court of Missouri, Division No. 1.\\nJune 10, 1957.\\nWm. J. Becker, Clayton, for (plaintiffs) appellants.\\nBiggs, Hensley, Curtis & Biggs, Ward Fickie, St. Louis, for respondents.\", \"word_count\": \"1700\", \"char_count\": \"9988\", \"text\": \"HYDE, Judge.\\nThis is a class action by owners of lots in the Laurel Hill Cemetery, who are members of Laurel Hill Cemetery Association, a nonprofit organization incorporated by pro forma decree, seeking an accounting, determination of rights, interests and ownership of lot owners, payment of its perpetual care fund to the County Clerk, appointment of a receiver and an injunction against defendants. The Court found that plaintiffs were not entitled to the relief prayed for and dismissed plaintiffs' petition. Plaintiffs have appealed.\\nIt is difficult to determine plaintiffs' claims and points relied on because plaintiffs' brief fails, to comply with Rule 1.08, 42 V.A..M.S., in so many respects; and the question of our jurisdiction arises.\\nThe Laurel Hill Cemetery Association (referred to as the Association) was organized as a voluntary association in 1923 and was incorporated in 1925. Its articles of agreement provided that all lot owners would be members of the Association and that its property was to be managed and controlled by a Board of Trustees composed of five members. The Cemetery was owned by Plymouth Securities Company (referred to as Plymouth) established as a common law trust by a declaration of trust made and recorded in 1923. A contract was entered into in 1923, between Plymouth and the Association, in which Plymouth agreed to plat, develop and improve the cemetery, convey to the Association all lots bearing a number ending with naught, and \\\"to give ten per cent of all' money received from the sale of all remaining lots.\\\" The Association agreed to create a perpetual care fund from the proceeds of the sale of lots and agreed to assume the care and maintenance of sections of the cemetery of not less than 25 acres, when they were fully developed and it had a perpetual care fund of at least $100,000 for each section of 25 acres. The Association also agreed to invest the perpetual care fund in certain designated securities and use only the interest or income for care and maintenance.\\nIn 1945, defendants Johnson and May-sack purchased the assets of Plymouth, which included the cemetery and assigned the purchase contract to Laurel Hill Memorial Gardens, Inc., a corporation organized under the laws of Missouri in 1946 (referred to as the Corporation) in which they owned substantially all of the stock. The purchase price was $225,000 and it was agreed that the legal title to all assets should remain in Plymouth until the payment of the purchase price in full, Plymouth, however, to malee deeds to purchasers of all lots paid for in full. The Association made an agency agreement, in 1946, with the Mutual Bank and Trust Company of St. Louis, (referred to as the Bank) for the Bank to act as custodian and depository agent for the Association. The Association deposited its cash and securities with the Bank and the Bank collected the income for the Association and agreed to purchase securities for the Association on instructions from the Executive Committee of the Association. This suit was begun in November 1953, and at the end of that year, the principal of the assets of the Association, which was the perpetual care fund in the custody of the Bank, was $126,-122.02 and there was also on hand collected income of $2,164.67. A copy of the Bank's statement of September 30, 1953, filed with defendants' pleadings showed principal of $125,212.02 and collected income of $10,-407.66, making a total of $135,619.68, which is the amount plaintiffs use in connection with their jurisdictional statement. However, the later statement shows that income of $10,407.66 was paid to the Association on December 9, 1953, leaving collected income at the end of the year $2,164.-67. The Corporation has paid for care of the cemetery not provided for by the income from the perpetual care fund.\\nOur jurisdiction is invoked on the ground \\\"of the amount of money involved.\\\" Our jurisdiction is not determined by the amount of money involved but instead by the amount in dispute. Section 3, Article V of the Constitution, V.A.M.S. gives this court jurisdiction \\\"in all cases where the amount in dispute, exclusive of costs, exceeds the sum of seventy-five hundred dollars.\\\" Plaintiffs say the purpose of this suit is to require defendants to pay into trust in the hands of the County Clerk (Clerk of the County Council) several hundred thousand dollars of \\\"perpetual care fund\\\" moneys belonging to the owners of cemetery lots. They also say \\\"defendants admit that the perpetual care fund now has a balance of in excess of $135,000 and plaintiffs contend that additional money should be accounted for.\\\" As to the matter of payment to the County Clerk of the amount of the perpetual care fund in the custody of the Bank, there is no dispute about that amount because all parties rely on the Bank's statement as to the amount. As to the claim that additional money should be accounted for, there is no claim for any specific amount in the pleadings and nothing in the record to show any definite amount. The only thing plaintiffs point to is the following statement in the minutes of a meeting of the trustees of Plymouth of January 5, 1954:\\nCancellations . . . 703,712.40\\n. . $1,157,845.35\\\" Net sales . .\\nPlaintiffs argue that defendants should be required to account to the perpetual care fund for 10% of the above amount shown as \\\"Cancellations\\\". However, this statement does not show that any such amount was collected on sales of lots that were cancelled or what amount, if any, was collected on cancellations. Furthermore, this matter is now completely eliminated from the case by plaintiffs' failure to preserve it for appellate review, by stating it as a ground in their motion for new trial, there being nothing in their motion for new trial concerning the matter of accounting for any additional money.\\nAs we have said, there is no dispute about the amount now in the perpetual care fund of the Association in the custody of the Bank and there is no evidence to show this is not the correct amount of the perpetual care fund established. The only controversy concerning it is whether this fund must be placed in the custody of the County Court because of the provisions of Sections 214.150, 214.160, 214.170 and 214.-180. (References are to RSMo 1949 and V.A.M.S.) The County Court (now County Council) of St. Louis County is not a party to this case and is not asking for custody or control of this fund. The allegations of the petition concerning this matter were that defendants had not paid the perpetual care funds to the County Clerk or County Council and had not been designated by the County Council to administer the fund. The relief asked concerning it was that defendants be ordered to pay the perpetual care fund to the County Clerk. We have consistently held, where the issue is the control of a fund between parties to a case, instead of permanent divestiture of title, the amount that determines our jurisdiction is the financial value of the control, or loss of control, and not the value of the property controlled; and this val\\u00fce must affirmatively appear from the record to be in excess of $7,500 to give us jurisdiction. (As to trustees see Dyas v. Dyas, Mo.Sup., 163 S.W.2d 557; Hamilton v. Robinson, Mo.Sup., 146 S.W.2d 601; see also Commercial Bank of Jamesport v. Songer, Mo.Sup., 62 S.W.2d 903; as to guardians see Bowles v. Troll, 262 Mo. 377, 171 S.W. 326; as to administrators and executors see Menzi v. White, 360 Mo. 319, 228 S.W.2d 700, 17 A.L.R.2d 796; Fields v. Luck, 327 Mo. 113, 34 S.W.2d 710; In re Wilson's Estate, 320 Mo. 975, 8 S.W.2d 973.) The evidence in this case does not show that the Association receives anything for the administration of the perpetual care fund and we think the inferences are that it does not, as this is only the management of its own property. While the Bank is paid for the services it renders in connection with the fund, the Bank is not a party to this action. (Under its contract, the Bank is not a trustee with title to the fund.) There is, likewise, nothing to show that the County Council would receive anything for the administration of the fund. The Association is the owner of the fund for the benefit of its members, the owners of lots in the cemetery, and they would remain the beneficial owners in any event. Furthermore, the County Council is not 'seeking in this suit to take either temporary or permanent control of the fund from the Association; it is not even a party. Thus, there is no real issue as to title to the fund between the Association and any party to this suit claiming to be the owner of it. If .the County Council were a party to this case seeking a permanent divestiture of title from the Association we would have a different case. Our conclusion is that it does not affirmatively appear from the record herein that the financial benefit or loss to any party to this suit would be in excess of $7,500, because of the relief sought by plaintiffs. It is well settled that the fact that plaintiffs sought the appointment of a receiver for the corporation would not give us jurisdiction. Rust v. Geneva Inv. Co., Mo.Sup., 124 S.W.2d 1135; Ross v. Speed-O Corporation, 343 Mo. 500, 121 S.W.2d 865; Stipp v. Bailey, 331 Mo. 374, 53 S.W.2d 872. We must hold on the record before us that- we do not have jurisdiction of this case.\\nThe case is transferred to the St. Louis Court of Appeals.\\nAll concur.\"}"

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+"{\"id\": \"10183953\", \"name\": \"Margaret S. DALLMEYER, Respondent, v. Robert E. DALLMEYER, Appellant\", \"name_abbreviation\": \"Dallmeyer v. Dallmeyer\", \"decision_date\": \"1955-01-10\", \"docket_number\": \"No. 44006\", \"first_page\": \"250\", \"last_page\": \"256\", \"citations\": \"274 S.W.2d 250\", \"volume\": \"274\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T00:20:34.889277+00:00\", \"provenance\": \"CAP\", \"judges\": \"VAN OSDOL and COIL, CC., concur.\", \"parties\": \"Margaret S. DALLMEYER, Respondent, v. Robert E. DALLMEYER, Appellant.\", \"head_matter\": \"Margaret S. DALLMEYER, Respondent, v. Robert E. DALLMEYER, Appellant.\\nNo. 44006.\\nSupreme Court of Missouri. Division No. 1.\\nJan. 10, 1955.\\nIra H. Lohman, Jefferson City, for appellant.\\nHendren & Andrae, By: Henry Andrae, Jefferson City, for respondent.\", \"word_count\": \"3358\", \"char_count\": \"19490\", \"text\": \"LOZIER, Commissioner.\\nPlaintiff-respondent wife (herein called plaintiff) sued defendant-appellant (herein called defendant) for divorce, custody of their minor son and for alimony in gross. Defendant answered, denying that plaintiff was entitled to a divorce, custody of the son and alimony. The trial court found that plaintiff was the innocent and injured party, granted her a divorce and custody of the son, but denied her alimony and attorney's fees. Upon this appeal, the propriety of the trial court's findings and conclusions as to-.any of those matters is not involved.\\nThe real issue here is, and below was, made by defendant's cross-claim wherein he pleaded resulting trusts in three real properties, 1,318 shares of a bottling company stock, and 9 shares of bank stock. The trial court ruled that issue adversely to defendant. Defendant appealed.\\nThis court has jurisdiction of the appeal, both because title to real estate is involved and because of the amount in dispute. Art. V, \\u00a7 3, Const., 2 V.A.M.S.\\nWe review this equity case de novo upon the record made below, giving due regard to the trial court's better opportunity to judge the credibility of the witnesses.\\nThe parties were married in 1929 and separated in 1952. They have two sons, 22 and 18 years old at trial time (1952\\u2014 1953). It was conceded that plaintiff had no property at the time of her marriage, and had thereafter inherited no property.\\nOn April 6, 1937, defendant caused the Vineyard Square property (the home), the title to which had theretofore been in his name, to be conveyed to plaintiff and defendant by the entirety. On September 16, 1937, he caused the Washington Park property, and on April 1, 1947, the Crestview property, to be conveyed to her individually. Between September 10, 193.8, and December 14, 1949, he caused to be issued in their joint names 839 shares, and in her name, 479 shares, of bottling company stock. On December 3, 1948, he caused to be issued in her name 9 shares of bank stock.\\nDefendant pleaded that, in causing the transfers to be made, \\\"it was not his intention to make gifts to plaintiff; that his intention was that the equitable title should not pass to plaintiff but that she should hold it in her name as trustee for defendant and not as her own property\\\"; it \\\"was at all times the intention of both parties that defendant should have equitable title to the\\\" Vineyard Square and Washington Park properties; \\\"it was understood\\\" that the W\\u00e1sh-ington Park property \\\"was to be improved\\\" and that the- Crestview property was \\\"put in plaintiff's name until such time as it could b.e subdivided' and sold to advantage.\\\" Defendant alleged that all transfers of stock were made \\\"clearly as a matter of convenience,\\\" as defendant was an officer of the bottling company and a director of the bank. In her answer to the cross-claim, plaintiff alleged that all of the transfers were made by defendant upon the express understanding, in each instance, that the property was \\\"to be plaintiff's property alone\\\" and that defendant caused the transfer to be made \\\"as a gift and provision for plairitiff.\\\"\\nThe greater portion of the transcript consists of evidence as to past and present values of the properties and as to defendant's business difficulties and financial status at various times after 1936. One of the trial court's findings of fact and conclusions of law was that the transfers of the properties by defendant were \\\"part of an effort ' to avoid, hinder, delay and defraud his creditors\\\" and that he did \\\"not come into equity with clean hands.\\\" However, we need neither summarize the evidence as to those matters nor rule the propriety of that finding and conclusion. This, because our study of the record has convinced us that the trial court properly found and ruled that the transfers were gifts and that, at the time of each transfer, defendant did not intend to create a resulting trust.\\nFor the same reason, we need refer but briefly to the evidence as to the financing and management of the real properties, as to defendant's \\\"voting\\\" the stock and using the dividends thereon, or as to other business or financial agreements or transactions, after the times of the transfers, between either the parties themselves or between them and third persons.\\nPlaintiff testified that in 1937 defendant told her about having had the Vineyard Square property conveyed to him and her and stated.that their home was \\\"jointly owned.\\\" At the trial, defendant said that, at the time he caused the transfer to be made, \\\"it was my understanding that it (the home) was to be the joint property\\\" of the parties. In this court,, defendant has abandoned his claim of a resulting trust in the home. (In his brief he states that the home \\\"has been sold and is no longer in controversy.\\\")\\nThese facts are undisputed: ' Plaintiff paid no part of the consideration for any of the stock or for either the Crestview or Washington Park properties or any part of the cost of any building constructed thereon; defendant platted the Crestview property, constructed six houses and a barn and drilled a well thereon; he constructed a building on the Washington Park property ; he managed, paid the taxes, insurance and interest upon, and collected the rents from, the Crestview property (all with plaintiff's permission and consent) until November 1952 and the Washington Park property until sometime in 1950 or 1951, at which times, respectively, plaintiff \\\"took over\\\" control and management; he arranged for the financing and refinancing of the two real properties. It was also undisputed that defendant \\\"voted,\\\" and received and cashed the dividend checks on, the bottling company and bank stock.\\nDefendant testified that, when he purchased the Washington Park property, he \\\"put it in Mrs. Dallmeyer's name to have it for our children.\\\" Sometime in 1950, he had an offer for the property, and talked to plaintiff about it \\\"and I told her I wouldn't sign a deed for that amount of money.\\\" As to the Crestview property, defendant testified that plaintiff \\\"looked at it with me and we agreed to buy it. I placed that deed in Mrs. Dallmeyer's name in order for us to have it for our children.\\\"\\nAs to the bottling company stock, defendant said that plaintiff had, on August 29, 1945, endorsed in blank the two certificates for the 479 shares issued to her individually; she and he had, on January 27, 1950, endorsed in blank one- certificate for 240 shares issued to her and him jointly; he put those three certificates in his deposit box, to which she had access. \\\"It was our mutual understanding that that stock was to be held by me for the benefit of our two sons and it would never be hypothecated in any way. The agreement was that I was to keep the stock as long as I lived and it would go to our children. I don't know .we had any agreement as to the. dividends but I always took them and cashed the checks, without any objection on her part.\\\"\\nAt one hearing, defendant was asked:\\n\\\"Is it your position that this property was to remain in Margaret Dallmeyer's name as long as you were not divorced? A. What property ?\\n\\\"Q. All these various pieces of property, including the [bottling company] stock, is that your position? A. That is it.\\\"\\nAt a subsequent hearing:\\n\\\"Q. Mr. Dallmeyer, I asked you at the last hearing whether it was your position that the property was to remain in Margaret's name a long as you were not divorced and your answer was, 'that is right' or 'that is correct.' Is that still your answer? A. I believe that is correct.\\n\\\"Q. You had an understanding then that if there was any. divorce this property was to be returned to you, is that correct? A. No, sir, I never expected a divorce.\\n\\\"Q. It was your expectation that if there was ever a divorce the property would be returned to you, is that correct? A. That is correct.\\n\\\"Q. Was it your position that she was to go through some sort of an understanding and return it to you? A. Yes, I believe it is.\\n\\\"The Court: You say that is your understanding? A. That is my understanding.\\n\\\"Q. [by plaintiff's counsel]: That was your understanding with Mrs. Dallmeyer, is that correct? A. That was my thought on the matter.\\n\\\"Q. I mean, do you have such an understanding? A. We had no verbal understanding.\\n\\\"The Court: You mean you didn't speak of it, is that what you mean? A. That is correct.\\\"\\nPlaintiff testified that all of the transfers, some of which were made without her prior knowledge, were gifts. She went with him when the Crestview property was purchased, he consulted her about it and she knew \\\"it was being put in my name. He spoke of 'your property' and to other people, 'Margaret's farm.' That was from the beginning on.\\\" While he was subdividing and building houses on the property, \\\"he asked me to go out all the time and I was always under the impression that they were mine. He always said, 'Your farm, your houses, your barn.' I don't know that he said 'your barn' because he used it for his horses.\\\"\\nPlaintiff said that she allowed defendant to manage the two real properties and collect the rents. Prior to the time she \\\"took over\\\" the Crestview property, she \\\"had to pay for some repairs,\\\" and defendant always consulted her about repairs on the Washington Park property. Once he told a tenant in the latter property, \\\" 'You will have to decide with Margaret what should be done,' and I did not want to spend the money to do it. I have spent money since I managed the property.\\\" Plaintiff had to take over the management of the properties when the owners of notes secured by deeds of trust \\\"got on me because the property was mine,\\\" and there was a possibility of foreclosure. Defendant did not resist her \\\"taking over.\\\" In November, 1952, in his lawyer's office, he handed her the notes and deed of trust books, saying, \\\"Here are your building and loan books.\\\"\\nWhen the bottling company stock was issued, defendant told plaintiff that it was issued either to her individually or to them jointly. She remembered endorsing the certificates. She said that she claimed the stock, \\\"I took great pride in it. Mr. Dallmeyer put it in my name for what reason I don't know except I was supposed to be part owner in the company.\\\" If his purpose was to prevent collection of any judgments which might be rendered against him, she knew nothing about it. The certificates were kept in their joint deposit box in \\\"an envelope with my name on it.\\\" Once, when defendant talked of selling the company, \\\"I said I did not approve, that I wanted to keep it, that is one piece of property that was going to be kept clear.\\\"\\nAt the time or sometime after the bank stock was issued, plaintiff said, defendant \\\"told me that we owned 9 shares jointly. I suppose Mr. Dallmeyer bought them. I had no money. He would be the only one to buy them.\\\"\\nThese principles are well established: A resulting trust is created at the time title is transferred, not by subsequent occurrences. Ferguson v. Stokes, Mo., 269 S.W.2d 655, 660 [4], Where the husband pays the consideration and causes the transfer to be made to the wife, the rebuttable presumption is that he intended to make a gift or a provision for her benefit. Jacobs, v. Jacobs, Mo., 272 S.W.2d 185, 188 [8]; Hiatt v. Hiatt, Mo., 168 S.W.2d 1087, 1090 [7-9] (transfer to husband and wife by the entirety). The burden of proof is upon the party challenging the transfer. Milligan v. Bing, 341 Mo. 648, 108 S.W.2d 108, 109 [1-4]. \\\"Parol evidence to establish a resulting trust must be so clear and convincing as to leave no doubt in the mind of the court as to its existence.\\\" Darrow v. Darrow, Mo., 245 S.W.2d 834, 837[2, 3].\\nAgreeing that such principles are applicable, defendant contends that he has sustained his burden of proof. He relies almost entirely upon the evidence that, after each of the transfers, he \\\"at all times retained control, and collected the rents with respondent's permission, collected the dividends and kept them for years afterwards, made all the repairs, managed all of the properties, paid the taxes and insurance, and these facts are all admitted and they clearly overcome the presumption that it was a gift. While much of the evidence, such as acts and conduct of the parties, was after the transfers were made, yet it shows that at the time the deeds were taken and the property transferred none of it was intended as a gift either by defendant or plaintiff.\\\" All of which, argues defendant, \\\"negatives the fact that at the time the properties were transferred it was intended that plaintiff should have the title thereto, negatives any intention to transfer title and clearly overcomes any presumption of a gift.\\\"\\nThe conduct of the parties after the transfers of title \\u2014 such as the management of the property by the husband-payor (of the consideration), collection of rents and payment of taxes and insurance, with the acquiescence of the wife \\u2014 is evidence tending to rebut the presumption of an intended gift. See Restatement, Trusts, Sec. 443, Comment o, p. 1358, cited by defendant. But such evidence is not conclusive as to the husband-payor's intent at the time he caused title to be put in his wife's name. Indeed, such evidence is of little weight where the overwhelming weight of the other evidence \\u2014 and, especially, the evidence as to circumstances at the time of the transfer \\u2014 supports the presumption of an intended gift to the wife.\\nReturning to the testimony as to defendant's intent at the time of the transfers. The trial court expressly found that plaintiff was a more credible witness than defendant. We defer to that finding. Balch v. Whitney, Mo., 273 S.W.2d 497. Furthermore, we believe that defendant's own testimony not only fails to negative the presumption of gifts to plaintiff, but clearly negatives his theory of resulting trusts. We need here emphasize only: Defendant never testified that, at the time of any one of the transfers, it was his intention that plaintiff hold the legal title for him or for his benefit; he put the Washington Park property in her name \\\"to have it for our children\\\"; it was only his \\\"understanding\\\" or \\\"thought\\\" that she would return all of the properties to him in the event of a divorce, but he and she had \\\"no verbal understanding\\\" and he never mentioned his \\\"understanding\\\" or \\\"thought\\\" to plaintiff. We find that defendant, by failing to offer clear and convincing evidence of his intent to establish resulting trusts, has not rebutted the gift presumption and, hence, has failed to sustain his burden of proof as to his cross-claim. We so rule.\\nIn Count 6 of his cross-claim, defendant alleged that, in the event plaintiff was adjudged to be the owner of the Crestview property, he should have judgment against her for $9,498.65 with six' per cent interest from August 27, 1952, and to have same declared a lien against that property. At the trial, it was conceded that defendant's claim in Count 6 covered only Lots 5 and 6, 'Crestview property. On August 27, 1952, defendant paid $9,498.65, the balance then due on a $12,000 note executed by the parties on October 11, 1947, and caused the securing deed of trust (covering all of the Crestview property, including Lots 5 and 6) to be released of record. On the same day, the parties refinanced an $18,000 loan on the Washington Park property. Defendant alleged that he paid the $9,498.65 in pursuance of this agreement with plaintiff: If he would join her in refinancing the Washington Park property loan, she would join him in refinancing the existing loans on Lots 5 and 6. Defendant alleged that plaintiff failed and refused to refinance the two lots and that, therefore, he was entitled-to be subrogated to the rights of the holder of the $12,000 note to the extent of $9,498.65. In her answer to the cross-claim, plaintiff denied the existence of the alleged agreement.\\nDefendant testified that he borrowed $10,000 from a St. Louis bank \\\"to pay off\\\" the balance due on Lots 5 and 6. He was intending to refinance the other lots and she \\\"agreed to that and then came the separation and nothing further came up about it. That was when we agreed to send Billy (their youngest son) to school at Western Military Academy; we didn't have sufficient money to do it and Mrs. Dallmeyer wanted to refinance the\\\" Washington Park property. \\\"And I agreed to sign that mortgage with her provided she would agree to refinance\\\" all of the Crestview lots, \\\"but circumstances came around so that we never could finance\\\" them.\\nPlaintiff testified that she received $1,-417.52 difference between the old and the new $18,000 loan on the Washington Park property and used it to pay Billy's tuition at the military school. She denied that she had agreed with defendant, in consideration of his joining her in the $18,000 loan, she would join him in refinancing Lots 5 and 6. She did not know that he had borrowed the $10,000 from the St. Louis bank \\\"until after he had borrowed it.\\\" (She said that she did agree to join him in refinancing Lots 2 and 3 and that they did refinance those lots. Counsel agreed that Lots 1, 2, 3 and 4 had been refinanced prior to August 27, 1952.) \\\"If he intended to have me enter into some future agreement with him and refinance\\\" Lots 5 and 6 \\\"so he could get his\\\" $10,000 \\\"back, don't you think beforehand he could have consulted me? He did not.\\\"\\nAgain, we believe, defendant has failed, to sustain his burden of proof as to the existence of an agreement with plaintiff. We so rule.\\nDefendant says that Count 6 is \\\"one for 'money paid as surety.\\\" He argues that if plaintiff is held to be the owner of Lots 5 and 6, she \\\"is the principal debtor and defendant is merely surety for her; that being true , as a matter of law, without the aid of equity, defendant is entitled to judgment in accordance with Sections 433.050 and 433.060,' RSMo 1949, V.A.M.S.\\\"\\nHowever, those sections (providing that a surety may recover from his principal money paid or the value of property delivered, with interest, by him in satisfaction of his principal's obligation) do not aid defendant. This, because defendant w\\u00e1s not a surety. The $12,000 note (the $9,498.65 balance due upon which defendant paid on August 27, 1952) and the securing deed of trust were executed October 11, 1947. (This was a little over six months after defendant bought the Crestview property and caused it to be conveyed to plaintiff. Apparently, the proceeds of that loan were used by defendant in developing the entire subdivision which he thereafter, until November 1952, managed and collected the rents therefrom.) On the face of that note and that deed of trust, plaintiff and defendant were both principals and each executed each instrument as principal, not as surety (\\\"we promise to pay,\\\" \\\"we agree for ourselves, our executors or administrators\\\" etc.). The assignment is overruled.\\nThe judgment and decree is affirmed on the ground that the transfers were gifts of the properties from defendant to plaintiff.\\nVAN OSDOL and COIL, CC., concur.\\nPER CURIAM.\\nThe foregoing opinion by LOZIER, C., is adopted as the opinion of the court.\\nAll concur except WESTHUES, J., not sitting.\"}"

mo/10184786.json

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+"{\"id\": \"10184786\", \"name\": \"George J. SMITH, Respondent, v. AMERICAN NATIONAL INSURANCE COMPANY, a Corporation, Appellant\", \"name_abbreviation\": \"Smith v. American National Insurance Co.\", \"decision_date\": \"1955-05-02\", \"docket_number\": \"No. 22184\", \"first_page\": \"796\", \"last_page\": \"799\", \"citations\": \"278 S.W.2d 796\", \"volume\": \"278\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Kansas City Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T00:25:05.038991+00:00\", \"provenance\": \"CAP\", \"judges\": \"BOUR, C., concurs.\", \"parties\": \"George J. SMITH, Respondent, v. AMERICAN NATIONAL INSURANCE COMPANY, a Corporation, Appellant.\", \"head_matter\": \"George J. SMITH, Respondent, v. AMERICAN NATIONAL INSURANCE COMPANY, a Corporation, Appellant.\\nNo. 22184.\\nKansas City Court of Appeals. Missouri.\\nMay 2, 1955.\\nKenneth I. Fligg, Warren E. Slagle, Cornelius E. Lombardi, Jr., Kansas City, Lombardi, Fligg, McLean & Slagle, Kansas City, of counsel, for appellant.\\nWm. Coleman Branton, Lawrence R. Brown, Kansas City, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel, for respondent.\", \"word_count\": \"1288\", \"char_count\": \"8044\", \"text\": \"SPERRY, Commissioner.\\nThis is a .suit on a policy of insurance providing for hospital and surgical indemnities. . The policy was issued to plaintiff's wife by defendant. Insured was hospitalized and underwent an operation for goiter. Plaintiff sought and obtained, in this action, a judgment for expenses .incurred thereby, in the sum of $346.50. Defendant appeals.\\nThe policy was issued November 10, 1951. It provides'for the payment of indemnities toward hospital expenses \\\"caused by sickness which originates after thirty days from its date of issue and causes hospital confinement while this policy is in force, It provides for payment of surgical indemnities provided that \\\"surgical indemnity on account of such sickness shall attach only if 'such sickness' has its inception more than ninety (90) days from dat\\u00e9 of issue.\\\"\\n. Insured entered Research Hospital and was, on November 10, 1952, while'the policy was in full force, operated on for removal of thyroid adenoma (non-toxic) goiter. Defendant denied liability on the ground that the \\\"sickness\\\" for which insured was hospitalized and surgically treated, originated and had its inception prior to the issuance of the policy or, rather, that it did not originate more than 30 days thereafter. Defendant does not question the amount of the judgment, but questions plaintiff's right to recover any amount.\\nIt is a cardinal principle of insurance law that in order to make a sub-missible case for recovery on a contract of insurance there must be offered substantial evidence tending to prove that the claim sued oh is one within.the coverage provided by the terms of the contract. Citation of authority is unnecessary. Unless the record here reflects such evidence plaintiff failed to 'make a submissible case.\\nIs there substantial evidence tending to prove that insured's sickness, for which she was. hospitalized and treated, originated or had its inception more than 30 days after issuance of the policy f\\nPlaintiff testified to the effect that, in 1950, insured was suffering from a nervous condition; that she was treated by Dr. Ferris for' that condition; that, in 1952, Dr. Ferris told plaintiff that, insured should have an operation for removal of a goiter; that this was the first that plaintiff .knew about such a condition; that insured did not discuss the goiter operation with plaintiff until August, 1952; that insured underwent such an operation at Research Hospital during the first part o\\u00ed November, 1952; that she was in hospital seven or eight days; that he had paid all charges therefor; that demand for indemnification had been made on defendant, and payment refused.\\nDr. Ferris testified to the effect that he first saw and examined insured in November, 1950; that he thoroughly examined her; that he found a thyroid adenoma '(goiter); that insured was subjected to a series of tests and it was determined that the adenoma was non-toxic, that it was static, and that it in no wise contributed to insured's nervous condition, for which she was then being treated; that she was, at the time of the trial, suffering from a nervous condition, to the extent that he had advised that she not appear as a witness; that she was still Dr. Ferris' patient.\\nOn cross-examination Dr. Ferris stated that a symptom of toxic goiter is nervousness ; that the type of adenoma goiter from1 which insured suffered does not cause nervousness unless it becomes toxic; that a goiter- is an abnormal development of the thyroid gland; that it is a pathological condition; that a pathological condition is a diseased condition; that the operation for removal of, the goiter was for the removal \\u2022of the same condition which he found in November, 1950.\\nPlaintiff identified various of defendant's exhibits, including No. 2, one part thereof being \\\"Physician's Hospitalization Statement\\\" and the other being \\\"Claimant's Hospitalization Statement.\\\" He stated that these statements were a part of the proof of claim filed by him in this case. In '\\\"Claimant's Statement\\\" it appears that Dr. C. J. Hunt performed the operation and, in \\\"Physician's Hospitalization Statement\\\" Ihe following appears:\\n\\\"2. Nature of sickness or disease. (List, all) adenoma of thyroid.\\n\\\"(a) 'I was first consulted on 3rd day of Nov. 1952.\\n\\\"(b) In your opinion how long prior to your first consultation had the cause \\u2022of the condition existed? 2 years.'\\n( \\u215c \\u215d \\u2021 \\u2021 \\u2021 \\u215c\\n\\\"(d) To what do you attribute the \\u2022cause of the disease or condition? Adenoma of Thyroid.\\\"\\n\\nPlaintiff stated that Dr. Hunt signed :the above 1 \\\"Physician's Statement.\\\"\\nHospital records were also admitted in \\u2022evidence and, in exhibit 8, under the heading \\\"Admitting diagnosis\\\" the following .appears: \\u2022,\\n\\\"Chief complaint: Lump in throat\\u2014 two plus years.\\n\\\"History present illness: Over two . years ago this patient noticed a mass in her neck, just above sternum. She saw an M.D. who told her she had goiter. This has enlarged evenly and regularly. She now feels a pulling in her neck occasionally. There has been no unusual recent rapid growth.\\\"\\nTn exhibit 9 the following appears: - \\\"Impression : one nodular non-toxic goiter (thyroid adenoma). Rule out malignant change. M. C. Warren.\\\"\\nThe uncontradicted testimony of Dr. Ferris established that insured had a fully developed non-toxic goiter (thyroid ade-noma) in November, 1950. The physician's statement, signed by Dr. Hunt, is corroborative of Dr. Ferris' testimony, and it was not contradicted or explained. The hospital records were also uncontradicted and unexplained. ' They established 'the fact that insured had a goiter two years prior to her operation, that it had gradually increased in size, but that there had been no unusual sudden or rapid growth of same. The hospital records also proved that the goiter, when removed, was' non-toxic, as it was when first discovered by Dr:-Ferris. Lastly, Dr. Ferris stated that the goiter, when first' discovered, constituted a diseased condition' and that same condition was removed by the operation^ The: evidence in this case constitutes conclusive proof of the fact that insured's condition, for which she was operated on, existed at .the time the policy was issued.\\nThe facts herein are vitally different from those appearing in Hilts v. U. S. Casualty Company, 176 Mo.App. 635, 642, 159 S.W. 771, 773, and other case.s of like character. There it was ruled that an insured might recover for . an .operation caused by hernia \\\" though it may be that plaintiff had a predisposition to hernia or that by violent physical exertion, prior to the issuance of the policy, the inguinal ring was weakened, causing the hernia to subsequently develop. that one may have what is called incipient hernia, or a predisposition thereto . without complete - hernia ever developing.\\\" (Italics ours.)\\nIn the case at bar, the. 'goiter existed long before the policy was issued; there is no question of a predisposition to goiter or of an incipient goiter. It was then nontoxic and, at the time it was removed, it was still non-toxic. There had been no unusual, sudden' or rapid change. Dr. Ferris stated that the condition removed was- the same condition that he found in. 1950. Defendant, ' by the terms of the insurance contract, was not liable for hospitalization due to a condition existing when the contract was made.\\nThe judgment should be reversed.\\nBOUR, C., concurs.\\nPER CURIAM.\\nThe foregoing opinion of SPERRY, C., is adopted as the opinion of the court. The judgment is reversed.\\nDEW, P. J., CAVE, J., and WEIGHT-MAN, S. P., concur.\\nBROADDUS, J., not sitting.\"}"

mo/11328937.json

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+"{\"id\": \"11328937\", \"name\": \"STATE of Missouri, Respondent, v. Darrell J. COBBLE, Appellant\", \"name_abbreviation\": \"State v. Cobble\", \"decision_date\": \"1988-08-09\", \"docket_number\": \"No. 54212\", \"first_page\": \"28\", \"last_page\": \"29\", \"citations\": \"755 S.W.2d 28\", \"volume\": \"755\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:37:57.953724+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Missouri, Respondent, v. Darrell J. COBBLE, Appellant.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Darrell J. COBBLE, Appellant.\\nNo. 54212.\\nMissouri Court of Appeals, Eastern District, Division Two.\\nAug. 9, 1988.\\nDewey S. Godfrey, Jr., St. Louis, for appellant.\\nJames Bick, Clayton, for respondent.\", \"word_count\": \"81\", \"char_count\": \"536\", \"text\": \"ORDER\\nPER CURIAM.\\nDefendant appeals from his conviction of driving while intoxicated. We affirm pursuant to Rule 30.25(b).\\nThe parties have been furnished with a memorandum, for their information only, setting forth the reasons for our order. An extended opinion would have no jurisprudential purpose.\"}"

mo/11593511.json

@@ -0,0 +1 @@
+"{\"id\": \"11593511\", \"name\": \"Joseph MAYES, Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"Mayes v. State\", \"decision_date\": \"1999-02-23\", \"docket_number\": \"No. 74523\", \"first_page\": \"524\", \"last_page\": \"524\", \"citations\": \"986 S.W.2d 524\", \"volume\": \"986\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T19:14:54.598192+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before PAUL J. SIMON, P.J., KATHIANNE KNAUP CRANE, and LAWRENCE E. MOONEY, JJ.\", \"parties\": \"Joseph MAYES, Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"Joseph MAYES, Appellant, v. STATE of Missouri, Respondent.\\nNo. 74523.\\nMissouri Court of Appeals, Eastern District, Divison Three.\\nFeb. 23, 1999.\\nMark A. Grothoff, Asst. Public Defender, Columbia, for appellant.\\nJeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for respondent.\\nBefore PAUL J. SIMON, P.J., KATHIANNE KNAUP CRANE, and LAWRENCE E. MOONEY, JJ.\", \"word_count\": \"142\", \"char_count\": \"903\", \"text\": \"ORDER\\nPER CURIAM.\\nJoseph Mayes files this appeal challenging the denial of his Rule 29.15 motion for post-conviction relief. We have reviewed the briefs of the parties and the record on appeal and conclude the trial court's determination is not clearly erroneous. Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).\"}"

mo/11614228.json

@@ -0,0 +1 @@
+"{\"id\": \"11614228\", \"name\": \"Orville OBERREITER, Deceased, Employee, and Cheryl Oberreiter, et al., Dependents, Appellants, v. FULLBRIGHT TRUCKING, Employer, Respondent, and Treasurer of the State of Missouri As Custodian of the Second Injury Fund, Respondent\", \"name_abbreviation\": \"Oberreiter v. Fullbright Trucking\", \"decision_date\": \"1999-05-04\", \"docket_number\": \"No. 74914\", \"first_page\": \"721\", \"last_page\": \"723\", \"citations\": \"991 S.W.2d 721\", \"volume\": \"991\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T21:59:20.735726+00:00\", \"provenance\": \"CAP\", \"judges\": \"LAWRENCE G. CRAHAN, J\\u201e and RICHARD B. TEITELMAN, J., concur.\", \"parties\": \"Orville OBERREITER, Deceased, Employee, and Cheryl Oberreiter, et al., Dependents, Appellants, v. FULLBRIGHT TRUCKING, Employer, Respondent, and Treasurer of the State of Missouri As Custodian of the Second Injury Fund, Respondent.\", \"head_matter\": \"Orville OBERREITER, Deceased, Employee, and Cheryl Oberreiter, et al., Dependents, Appellants, v. FULLBRIGHT TRUCKING, Employer, Respondent, and Treasurer of the State of Missouri As Custodian of the Second Injury Fund, Respondent.\\nNo. 74914.\\nMissouri Court of Appeals, Eastern District, Division Two.\\nMay 4, 1999.\\nRobert H. Sihnhold, St. Louis, for appellant.\\nJeremiah W. (Jay) Nixon, Attorney General, Jefferson City, John K. Ottenad, Assistant Attorney General, Cape Girardeau, for respondent Second Injury Fund.\", \"word_count\": \"780\", \"char_count\": \"4846\", \"text\": \"OPINION\\nJAMES R. DOWD, Presiding Judge.\\nThis is an appeal from the decision of the Labor and Industrial Relations Commission (\\\"Commission\\\") denying compensation from the employer and the Second Injury Fund. We dismiss the appeal.\\nOrville Oberreiter was killed in a trucking accident on September 22, 1987. On March 4, 1989, Cheryl Oberreiter, his wife, filed a wrongful death action in the circuit court against Willard Fullbright and Rose Mary Fullbright doing business as Fullbright Trucking Company. Ms. Oberreiter alleged that her husband was an employee of the Fullbright Trucking Company and that Fullbright Trucking Company furnished defective equipment to her husband that caused his death. This case is still pending.\\nIn October of 1993, Ms. Oberreiter filed a death claim for compensation under the Missouri Workers' Compensation Act. The Administrative Law Judge (\\\"ALJ\\\") made findings of fact on the merits of the claim and concluded that the claim for compensation was barred by the statute of limitations. The Commission affirmed the ALJ's ruling that the claim was barred by the statute of limitations. The Commission, however, found that the ALJ did not have subject matter jurisdiction to make any findings as to the merits of the claim. Ms. Oberreiter appeals.\\nMs. Oberreiter raises only one issue on appeal. Ms. Oberreiter contends that the Commission erred in finding that her claim for compensation is barred by the statute of limitations. Ms. Oberreiter argues that the Commission misinterpreted section 287.440 RSMo 1986 because that section suspends the running of the statute of limitations while an inconsistent cause of action arising from the same event is still pending. We disagree.\\nSection 287.480 provides that a claim of compensation shall be barred unless filed within two years after the date of death, unless a report of injury was not timely filed by the employer, in which case, the claim could be filed three years after the date of death. However, section 287.440 provides that the limitation period may be tolled:\\nWhere recovery is denied to any person in a suit brought at law or in admiralty to recover damages in respect of bodily injury or death on the ground that the person was an employee and the defendant was an employer subject to and within the meaning of this chapter, or when recovery is denied to any person in an action brought under the provisions of a workers' compensation law of any other state or jurisdiction on the ground that the person was an employee under and subject to the provisions of this chapter, the limitation of time prescribed in section 287.430 shall begin to run from the date of the ultimate termination or abandonment of such suit or compensation proceeding, when such suit or compensation proceedings are filed within two years after the filing by the employer of the report of injury or death complained of, or in case payments have been made on account of the injury or death, within two years from the date of the last payment.\\nTo toll the statute of limitation section 287.440 requires (1) an action at law for damages, (2) denial of recovery, and (3) that recovery is denied because the person is an employee and the defendant is an employer subject to the Workers' Compensation Act. Cf. Plunkett v. St. Francis Valley Lumber Co., 25 Ark.App. 195, 755 S.W.2d 240, 241 (1988).\\nHere, there exists an action at law for damages in a court of general jurisdiction, but there has been no denial of recovery for any reason. Accordingly, the Commission concluded that Ms. Oberreiter's claim for compensation is barred at this time. If and when these additional requirements are met, then the Commission may address the applicability of the tolling provision. Until then, the tolling provision cannot be applied.\\nThe Commission's denial of compensation, however, is not a final award because the Commission expressly left open the possibility that it may address the claim if and when the requirements of section 287.440 are met. Accordingly, this court does not have jurisdiction, and therefore, the appeal is dismissed.\\nLAWRENCE G. CRAHAN, J\\\" and RICHARD B. TEITELMAN, J., concur.\\n. Shaun Oberreiter and Missy Oberreiter, decedent's children, are also dependents in this action.\\n. All statutory references are to RSMo 1986 unless otherwise indicated.\"}"

mo/11747795.json

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+"{\"id\": \"11747795\", \"name\": \"West FORD, Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"Ford v. State\", \"decision_date\": \"1994-06-07\", \"docket_number\": \"No. 65150\", \"first_page\": \"216\", \"last_page\": \"216\", \"citations\": \"877 S.W.2d 216\", \"volume\": \"877\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T00:19:04.290240+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GARY M. GAERTNER, C.J., and PUDLOWSKI and SIMON, JJ.\", \"parties\": \"West FORD, Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"West FORD, Appellant, v. STATE of Missouri, Respondent.\\nNo. 65150.\\nMissouri Court of Appeals, Eastern District, Division Five.\\nJune 7, 1994.\\nS. Paige Canfield, St. Louis, for appellant.\\nJeremiah W. (Jay) Nixon, Atty. Gen., Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for respondent.\\nBefore GARY M. GAERTNER, C.J., and PUDLOWSKI and SIMON, JJ.\", \"word_count\": \"172\", \"char_count\": \"1058\", \"text\": \"ORDER\\nPER CURIAM.\\nAppellant, West Ford, appeals from the November 18, 1993, dismissal of his motion for post-conviction relief entered by the Circuit Court of St. Louis County. We affirm.\\nWe have reviewed the briefs and arguments of the parties, as well as the transcript and the legal file, and find no clear error in the findings of fact and conclusions of law of the-motion court. In addition, we find that no jurisprudential purpose would be served by a written opinion. We, therefore, affirm the judgement of the trial court pursuant to Rules 84.16(b) and 30.25(b). The parties have been provided with a memorandum, solely for their own information, setting forth the reasons for our decision.\"}"

mo/11918771.json

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+"{\"id\": \"11918771\", \"name\": \"Vicky LISZEWSKI, individually and as Natural Mother and Guardian of Victor Liszewski, Crockett Leon Hudson, and Carol Hudson, Plaintiffs-Appellants, v. UNION ELECTRIC COMPANY, Defendant-Respondent\", \"name_abbreviation\": \"Liszewski v. Union Electric Co.\", \"decision_date\": \"1997-03-18\", \"docket_number\": \"No. 68617\", \"first_page\": \"748\", \"last_page\": \"756\", \"citations\": \"941 S.W.2d 748\", \"volume\": \"941\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:51:19.623607+00:00\", \"provenance\": \"CAP\", \"judges\": \"GERALD M. SMITH, P.J., and GRIMM, J., concur.\", \"parties\": \"Vicky LISZEWSKI, individually and as Natural Mother and Guardian of Victor Liszewski, Crockett Leon Hudson, and Carol Hudson, Plaintiffs-Appellants, v. UNION ELECTRIC COMPANY, Defendant-Respondent.\", \"head_matter\": \"Vicky LISZEWSKI, individually and as Natural Mother and Guardian of Victor Liszewski, Crockett Leon Hudson, and Carol Hudson, Plaintiffs-Appellants, v. UNION ELECTRIC COMPANY, Defendant-Respondent.\\nNo. 68617.\\nMissouri Court of Appeals, Eastern District, Division Three.\\nMarch 18, 1997.\\nMark A. Heifers, Beach, Burcke, Heifers & Mittleman, LLC, St. Louis, for plaintiffs-appellants.\\nJay A. Summerville, Ann E. Buckley, Armstrong, Teasdale, Sehlafly & Davis, St. Louis, for defendant-respondent.\", \"word_count\": \"4053\", \"char_count\": \"25271\", \"text\": \"HOFF, Judge.\\nVicky Liszewski, individually and as natural mother and guardian of Victor Liszewski, Crockett Leon Hudson, and Carol Hudson (appellants) appeal from a judgment entered on a jury verdict in favor of Union Electric Company (Union Electric) on their wrongful death and personal injury claims. We affirm.\\nPaul Liszewski was electrocuted and Leon Hudson's arm was injured when an aluminum extension ladder they had used to access the roof of a building came into contact with uninsulated high voltage electric lines. The electric lines ran along the back of the building, above and parallel to the roofline. At the time of the accident, the two men were standing on the ground between the ladder and the building attempting to pull down the ladder.\\nIn this lawsuit, Vicky and Victor Liszew-ski, Paul Liszewski's widow and son, respectively, sought damages for the wrongful death of Paul Liszewski. Leon Hudson and his wife, Carol Hudson, sought damages for Leon's personal injuries and Carol's loss of consortium. A jury rendered a verdict in favor of Union Electric on all claims. The trial court entered judgment in accordance with that verdict.\\nAt trial, the court precluded appellants from introducing into evidence a police report that reflected a Union Electric representative's request that the police officer leave the scene, as well as expert testimony regarding an alternative design for the placement of the electric lines. Union Electric was permitted to introduce evidence of a different location for accessing the roof. After trial, appellants unsuccessfully moved for a new trial. In relevant part, appellants sought a new trial because of references Union Electric's attorney made to two other children fathered by Paul LiszewsM and to cover-ups, pieces of rubber that can be temporarily placed over uninsulated electric lines to enable work to occur near the lines. This appeal followed.\\nFor their first point, appellants contend the trial court erred in not allowing their expert witness to testify regarding his proposed alternative placement of the wires. Appellants urge such testimony was relevant and would show the wires could be placed away from any possible contact with humans.\\nThe admission or exclusion of evidence, including expert opinion testimony, is within the sound discretion of the trial court and this Court will not reverse the trial court's evidentiary ruling unless there is a substantial or glaring injustice. Twin Bridges Elec., Inc. v. Collins, 823 S.W.2d 14, 16 (Mo.App.E.D.1991). Furthermore, whether or not evidence is relevant is a matter within the trial court's discretion and its ruling will not be reversed absent an abuse of that discretion. Berra v. Union Elec. Co., 803 S.W.2d 188, 192 (Mo.App.E.D.1991).\\nTo preserve the issue of exclusion of evidence for appeal, however, an offer of proof demonstrating why the evidence is relevant and admissible must be made at trial. Eckert v. Thole, 857 S.W.2d 543, 546 (Mo.App.E.D.1993). The offer of proof must be definite and specific. Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 883 (Mo. banc 1985). Only in certain circumstances is such an offer unnecessary. Id. at 883-84. Those circumstances exist when: there is a complete understanding, based on the record, of the excluded testimony; the objection is to a category of evidence, rather than to specific testimony; and the record reveals the excluded evidence would have helped the proponent. Id.\\nHere, appellants' failure to make an offer of proof precludes review of this point. Prior to trial, Union Electric made an oral motion in limine to prohibit admission of the testimony of appellants' expert, Dean Park, that the wires could have been placed in a different location. The trial court sustained the motion and prevented references in opening statements or voir dire to alternative methods of supplying power to the premises in question. In denying appellants' pretrial request to make an offer of proof on Park's alternative methods testimony, the trial court stated \\\"[w]e're not in trial of the case, counselor. . You get the evidence out here.... An offer of proof, since I've heard no evidence, would indeed be an anomaly.\\\"\\nThe trial court subsequently permitted Union Electric's counsel to voir dire Park prior to his testimony. During tMs voir dire, Park stated he intended to offer an opinion that (1) he had an alternative design Union Electric could have considered to change the configuration of the poles to make the span of wires contacted by Paul LiszewsM and Leon Hudson unnecessary in that location, and (2) Union Electric was negligent for failing to have that design in place. After the voir dire, the trial court overruled Union Electric's oral motion to preclude Park from testifying about alternative design. In doing so, the trial court stated it had not yet heard the witness' testimony, and it would rule on any objection to Park's testimony made at the time of that testimony.\\nDuring direct examination, Park opined that the wires were too close to the building for the safe use of maintenance type facilities on or near the building. The trial court then sustained Union Electric's objection that questions regarding how Park would have designed the facility were irrelevant and immaterial. Appellants made no offer of proof of what would be Park's testimony regarding an alternative design or method of placement of the wires.\\nAlthough the record makes clear that Park believed Union Electric was negligent for failing to use an alternative method or design for the placement of the wires, any alternative method or design proposed by Park is not available of record. The record also does not reflect the basis for his opinion that Union Electric was negligent for the failure to use an alternative method or design. Those matters, as well as their relevancy and materiality, should have been addressed in an offer of proof. Absent that offer, this Court may not review the trial court's exclusion of the testimony.\\nMoreover, the narrow exception to the offer of proof requirement does not apply here. While the record may reveal that Park's excluded testimony would have helped appellants, the record does not indicate the trial court and Union Electric had a complete understanding of that testimony. Furthermore, Union Electric's objection was to specific testimony by Park, rather than to a category of evidence. Under the circumstances, appellants failed properly to preserve for appellate review any error by the trial court in excluding Park's alternative design or method testimony. Point denied.\\nFor their second point, appellants argue the trial court erred by allowing Union Electric to present testimony concerning an alternative access site to the roof which was around the corner from where Paul Liszewski and Leon Hudson accessed the roof. Appellants contend the testimony was offered on the issue of comparative fault, which was not raised in Union Electric's answer. Even if Union Electric properly raised the issue, appellants argue, the trial court should have determined as a matter of law there was insufficient evidence presented for submission of the issue to the jury.\\nTo preserve an objection to the admission of evidence for appellate review, a party must present a timely and proper objection to the trial court. Schisler v. Rotex Punch Co., 746 S.W.2d 592, 594 (Mo.App. E.D.1988). Absent such an objection, any error in the admission of the evidence may not be raised on appeal. Id. Here, appellants failed timely and properly to object to the admission of testimony regarding an alternative location for accessing the roof.\\nAfter voir dire and prior to opening statements, appellants orally moved in limine to prevent Union Electric from mentioning an alternative location for the ladder because it was not raised as an affirmative defense. Union Electric responded that evidence of the alternative location \\\"has to do with the foreseeability of people putting up ladders in this particular area.\\\" Therefore, Union Electric contended, the alternative location evidence was directed to an element of appellants' claims rather than to an affirmative defense. The trial court granted the motion to prohibit Union Electric from referring during opening statement to an alternative location for the ladder.\\nDuring his opening statement, appellants' counsel stated that \\\"Paul had driven around the back [of the building and] Leon walk[ed] around the back to meet Paul there. This is the area where they have to access the top of the roof in order to do their work.\\\" Before beginning its opening statement, Union Electric asked permission to respond to the reference made by appellants' counsel to the location for access to the roof. The trial court found appellants' counsel had \\\"opened\\\" the matter, permitted Union Electric's counsel to respond during opening statement, and noted that by this ruling the court was not making any \\\"determination as to the admissibility, vel non, of any evidence related to access to the roof.\\\"\\nKimberly Dunbar, the building manager at the time of the accident, was the only witness who testified about the existence of an alternative access site for the roof. Appellants' objections during her testimony focused on the admission into evidence of photographs and a diagram of the building. Appellants did not object to any of Union Electric's questions which asked Dunbar about an alternative place for access to the roof, nor did appellants move to strike any of her testimony regarding access to the roof.\\nDue to the absence of timely objection, this Court is precluded from reviewing the admission of testimony regarding alternative access to the roof.\\nMoreover, based on the record, this Court finds the trial court properly submitted the issue to the jury. Whether the evidence of an alternative access site went to foreseeability, which is an essential element of appellants' claims, or to one of Union Electric's pleaded affirmative defenses, there was sufficient evidence about the alternative access site to submit the matter to the jury.\\nDunbar testified there were no utility lines close to the building at the alternative access point, which was just around the corner from where the accident happened. Her testimony also disclosed that this alternative access point was surrounded by an unlocked chain link fence and was a common area available for use by all of the building's tenants and their contractors. Dunbar further testified she had accessed the roof from this alternative location and she was not aware of any maintenance personnel who accessed the roof from the location where the accident occurred. Photographs of the back of the building admitted into evidence also depicted the areas where the roof was actually accessed and where the roof could have been accessed according to Dunbar's testimony. The jury considered this and all other admitted evidence, as well as the arguments of counsel, and determined under the instructions of the trial court that Paul Liszewski and Leon Hudson were each one hundred percent at fault. Point denied.\\nFor their third point on appeal, appellants contend the trial court erred by not granting their motion for new trial. Appellants argue that comments made by Union Electric's counsel regarding cover-ups and the possible existence of two other children fathered by Paul Liszewski were highly prejudicial.\\nThe trial court has discretion to decide whether an attorney's conduct necessitates a new trial because it was prejudicial and substantially influenced the verdict. Ryan v. Campbell \\\"66\\\" Express, Inc., 304 S.W.2d 825, 827 (Mo. banc. 1957).\\n[T]he persistent asking of improper questions, or offering of improper evidence, or display of something not in evidence, [may require a new trial where] such acts constitute a willful attempt to present improper matters to the jury, or to create significant and improper inferences, or to force one's opponent to be placed in the light of suppressing facts by his objections. In each such case the final question is whether the conduct substantially influenced the verdict, despite the action taken at the time by the court, in sustaining objections or otherwise.\\nId. at 828-29 (citations omitted). A trial court's ruling on a motion for new trial due to attorney misconduct will be reversed only upon finding an abuse of discretion. Id. at 827.\\nFirst, appellants contend Union Electric's counsel violated a trial court order by mentioning cover-ups throughout trial. Prior to trial, appellants' counsel submitted a motion in limine which sought to preclude mention of the cover-ups. The trial court granted the motion to prohibit such references during opening statement and voir dire, and overruled the motion to the extent appellants sought to exclude evidence of cover-ups.\\nLeon Hudson testified that neither he nor Paul Liszewski notified Union Electric they were going to use an aluminum ladder near the uninsulated wires. During cross-examination of Dean Park, Union Electric asked whether he was familiar with the practice of utility companies, including Union Electric, to come out on request and place cover-ups over wires. The trial court sustained appellants' objection to the question and overruled Union Electric's related offer of proof, which occurred out of the hearing of the jury. Appellants' subsequent oral motion for a mistrial due to the mention of the cover-ups was unopposed, but was withdrawn by appellants prior to the trial court's ruling. Union Electric later unsuccessfully sought permission of the trial court, out of the hearing of the jury, to introduce evidence of Union Electric's policy regarding cover-ups.\\nAppellants do not contend Union Electric's counsel violated the trial court's ruling prohibiting mention of cover-ups during voir dire or opening statement. There was no trial court ruling forbidding the admission into evidence of cover-ups at the time Union Electric's counsel inquired about Dean Park's familiarity with the utility's practice. Any subsequent efforts by Union Electric's counsel to introduce testimony or an exhibit about the cover-ups occurred out of the presence of the jury and were unsuccessful. Based on the record, this Court is unable to conclude Union Electric's.counsel improperly presented evidence of cover-ups to the jury or that any such effort substantially influenced the verdict.\\nThe second allegedly improper conduct by Union Electric's counsel was his posing of the following question to Vicky Liszewski: \\\"[I]sn't it true that you and Mrs. Liszewski, Paul's mother, had a falling out at the funeral because she allowed two younger boys that Paul had from a previous marriage\\u2014.\\\" The trial court sustained appellants' objection to this question on the grounds of relevancy, and overruled Union Electric's offer of proof regarding this matter. The trial court noted at a sidebar conference that the question of other children of Paul Liszewski may become relevant once a judgment is returned and the court must determine the distribution of any funds. The record reflects no further mention of Paul Liszewski's children other than Victor.\\nThere is no indication of record that, prior to the posing of this challenged question, issues pertaining to any other children of Paul Liszewski were the subject of rulings by the trial court either before or during trial. Although appellants report in their brief that the trial court denied a pretrial motion for intervention filed by someone on behalf of those children, the record on appeal does not contain either that motion or the trial court's disposition of that motion. In any event, the conduct of Union Electric's counsel in posing this challenged question on one occasion was not prejudicial.\\nUnder the circumstances, this Court finds the trial court did not abuse its discretion in denying appellants' motion for new trial based on these two grounds. Point denied.\\nFor their last point on appeal, appellants argue the trial court erred by disallowing the introduction of a report of the first police officer at the scene who, while on the witness stand, could not recall if a Union Electric employee asked the officer to leave the scene.\\nWith respect to appellants' efforts to introduce the police report into evidence, the rec ord reflects the following: Christopher Beckett, a police officer with the Eureka, Missouri, Police Department, first arrived at the scene soon after the accident occurred, left the scene for awhile, and then returned later the same day. Beckett testified that he had reviewed his police report and it was a true and accurate record of what he observed the day of the incident. Based on this testimony, appellants unsuccessfully moved for the admission of that report. At a subsequent sidebar conference, appellants' counsel advised he sought admission of the report as past recollection recorded. The trial court responded: \\\"[i]f that is an offer of proof, it's overruled and denied. The court's ruling remains the same.\\\"\\nNext, appellants asked Beckett whether he recalled being \\\"requested to leave the scene by a Richard Weber\\\" of Union Electric. Beckett stated he did not recall. Appellants' counsel showed Beckett a copy of the report to \\\"see if that can help refresh [his] recollection.\\\" Beckett responded \\\"[t]here is a statement in here that I had written that \\u2014 .\\\" At this point, Union Electric's counsel objected. The trial court sustained the objection and asked the witness whether or not the report refreshed his recollection. Beckett responded \\\"[n]o.\\\"\\nAppellants' counsel then asked permission to read from the report. Union Electric's counsel objected the report did not refresh the witness' recollection and was hearsay. A sidebar conference proceeded, at which time the trial court read the following portion of the report as pointed out by appellants' counsel:\\nUnion Electric was notified by the fire department. A short time later, troubleshooter Richard Weber arrived and made proper notifications to his company. He also asked if we could leave the scene until his investigator could respond.\\nUnion Electric's counsel stated he objected on the grounds that it was hearsay and irrelevant. The trial court noted the witness had not testified he signed the report and there had been no tender of the report into evidence after the court's earlier ruling. Additionally, the trial court stated that even if the report was admitted into evidence, the above quoted statement \\\"is wholly irrelevant and immaterial and would not be admitted anyway.\\\"\\nNext, appellants' counsel asked Beckett whether he had signed the report. Beckett responded he had. Appellants moved for the admission of the report and Union Electric objected for the reasons stated at the sidebar. The trial court sustained \\\"[t]he objection to the tender of the entire police report.\\\"\\nAppellants' counsel responded that he would \\\"offer parts of the police report\\\" in addition to those referred to at the sidebar. The trial court stated \\\"[t]he exhibit is not admitted in evidence, so the objection is sustained. . As to any part not identified by this witness as to whether he has recollection or not.\\\" In response to the trial court's remarks, appellants' counsel said: \\\"All right. I don't mean to argue, I'm trying to understand. If I offer any part of the report, you're not allowing that \\u2014 any part of the report to be admitted?\\\" The trial court stated:\\nI don't know how you can arrive at that conclusion with my rulings. Suffice it to say that at this time the report is not in evidence. If you have any further questions of the officer regarding the report, you may proceed because I have no ability, sir, to divine your intentions or know what you have reference to.\\nAppellants' counsel did not ask Beckett any other questions regarding the report.\\nAt the end of direct examination, Beckett was asked to review his report to see if it refreshed his recollection as to who from Union Electric informed Beckett of the \\\"measurement of the neutral wire.\\\" Beckett responded \\\"[a]ll I can do is again tell you what is in the written report. To tell you that this makes my recollection come back, no, I don't recall. I can tell you what is written, what I wrote.\\\" Appellants concluded their direct examination of Beckett at that point and did not engage in redirect examination of him. When appellants later offered the report into evidence again, the trial court stated that the objection as to that exhibit was sustained.\\nTo the extent appellants contest the exclusion of the statement in the report that reflected information regarding whether or not Union Electric's employee asked Beckett to leave the scene, the trial court did not abuse its discretion in finding the statement irrelevant. The test of relevancy is \\\"whether an offered fact tends to prove or disprove a fact in issue or corroborates other relevant evidence.\\\" Oldaker v. Peters, 817 S.W.2d 245, 250 (Mo. banc 1991). There is no dispute that Beckett left the scene sometime after he first arrived. Beckett testified to that prior to any mention of the police report. It is not clear how any request by Union Electric's employee that Beckett leave the scene proves or disproves any disputed fact or corroborates other relevant evidence.\\nIn their brief on appeal, appellants urge the significance is that \\\"while [Beckett] was gone [Union Electric] made measurements of the height of wires, placement of Paul Lisz-ewski's ladder and other matters. These measurements were critical as there were no other measurements to which to compare these.\\\" While such measurements may be critical to issues in the case, it is not clear how Union Electric's request, if any, that Beckett leave the scene is relevant to such measurements.\\nTo the extent this point on appeal challenges the exclusion of other parts of the police report, the issue was not properly preserved for appellate review due to appellants' failure to make an offer of proof as to those parts. The exception to the offer of proof requirement is inapplicable because there is no indication of record that the trial court and Union Electric had a complete understanding of the contents of the report. Additionally, the record does not disclose how those parts of the report would have assisted appellants. Point denied.\\nJudgment affirmed.\\nGERALD M. SMITH, P.J., and GRIMM, J., concur.\\n. Leon Hudson testified he did not look for an alternative location for the ladder.\\n. The first two pictures Dunbar identified depicted the back of the building. When Union Electric sought to admit the photographs, appellants objected for lack of adequate foundation and because they \\\"raise[d] an issue or show[ed] an area that was not . raised\\\" in Union Electric's pleadings. The trial court overruled the objections and admitted the exhibits, as well as en largements of them. Appellants objected for lack of foundation to the next exhibit, which was a diagram of the building. The trial court sustained that objection but subsequently admitted the exhibit, as well as its enlargement, without objection. Appellants then objected unsuccessfully to another photograph of the building on the grounds the date of the depiction was not clear. The trial court admitted that exhibit, as well as its enlargement, into evidence.\\n. Tellis v. Union Elec. Co., 536 S.W.2d 742, 745 (Mo.App.E.D.1976).\\n. Union Electric's affirmative defenses, as set forth in its answer, stated that any damage suffered by appellants was \\\"directly and proximately caused in whole or in part by the [fault and negligence of Paul Liszewski and Leon Hudson] in failing to keep a careful lookout, . and negligently and carelessly bringing [their] ladder into close proximity and/or contact with overhead electrical wires\\\"; and Paul Liszewski and Leon Hudson \\\"assumed the risk of great bodily injury or death by voluntarily and intentionally bringing [their] aluminum ladder into close proximity and/or contact with overhead electrical wires in spite of the danger inherent of [sic] doing so.\\\"\\n.The trial court instructed the juiy, in relevant part, that a percentage of fault must be assessed to Union Electric if it \\\"failed to use the highest degree of care to isolate the electric line from reasonably foreseeable contact\\\"; that Union Electric could not be assessed a percentage of fault unless the jury believed Union Electric \\\"failed to isolate the electric line from reasonably foreseeable contact\\\"; and a percentage of fault must be assessed to Paul Liszewski and Leon Hudson if the jury believed those appellants \\\"failed to keep a careful lookout for the electric lines, or . caused or contributed to cause the ladder to come into contact with an electric line.\\\"\"}"

mo/11966820.json

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+"{\"id\": \"11966820\", \"name\": \"In the Matter of FORECLOSURE FOR DELINQUENT LAND TAXES BY ACTION IN REM. MANAGER OF DIVISION OF FINANCE OF JACKSON COUNTY, Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS, Appellant, 180 Talmadge, Inc., Respondent, Transcon Lines, Respondent, T.C. Services, Respondent\", \"name_abbreviation\": \"Manager of Division of Finance v. Parcels of Land Encumbered with Delinquent Tax Liens\", \"decision_date\": \"1997-06-24\", \"docket_number\": \"No. WD 52749\", \"first_page\": \"90\", \"last_page\": \"93\", \"citations\": \"947 S.W.2d 90\", \"volume\": \"947\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:05:42.291276+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ULRICH, C.J., P.J., and BERREY and SMART, JJ.\", \"parties\": \"In the Matter of FORECLOSURE FOR DELINQUENT LAND TAXES BY ACTION IN REM. MANAGER OF DIVISION OF FINANCE OF JACKSON COUNTY, Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS, Appellant, 180 Talmadge, Inc., Respondent, Transcon Lines, Respondent, T.C. Services, Respondent.\", \"head_matter\": \"In the Matter of FORECLOSURE FOR DELINQUENT LAND TAXES BY ACTION IN REM. MANAGER OF DIVISION OF FINANCE OF JACKSON COUNTY, Respondent, v. PARCELS OF LAND ENCUMBERED WITH DELINQUENT TAX LIENS, Appellant, 180 Talmadge, Inc., Respondent, Transcon Lines, Respondent, T.C. Services, Respondent.\\nNo. WD 52749.\\nMissouri Court of Appeals, Western District.\\nSubmitted Jan. 22, 1997.\\nDecided June 24, 1997.\\nStephen B. Sutton, Kansas City, for Appellant.\\nWilliam J. Gnefkow, Jr., Asst. County Counselor, Jackson County, Kansas City, for Respondent Manager of Division of Finance.\\nJohn F. Michaels, Kansas City, for Respondent 180 Talmadge, Inc.\\nThomas N. Lane, Kansas City, for Respondent Transcon Lines.\\nThomas G. Stoll, Kansas City, for Respondent T.C. Services.\\nBefore ULRICH, C.J., P.J., and BERREY and SMART, JJ.\", \"word_count\": \"2017\", \"char_count\": \"11879\", \"text\": \"SMART, Judge.\\nThis ease concerns the issue of standing to appeal a ruling setting aside a tax foreclosure sale.\\nOn May 16, 1994, the Director of Collections for Jackson County, Missouri, filed a petition pursuant to the Land Tax Collection Law, \\u00a7 141.210 to 141.810, RSMo 1994, seeking foreclosure of tax liens on different parcels of land, including property located at 3811 Gardner (\\\"Gardner Property\\\") in Kansas City, Missouri. The petition alleged that the property taxes for 1990, 1991 and 1992 had not been paid. On March 14, 1995, the trial court entered judgment on the Director's petition, foreclosing on the liens and ordering the Gardner Property sold at public sale. The owner at that time was Transcon Lines, a California corporation. No one bid on the Gardner Property at the foreclosure sale, and the Gardner Property was therefore deemed to have been purchased by the Jackson County Land Trust. Several weeks after the sale and before a confirmation hearing was held on the sale, Transcon Lines conveyed its interest in the Gardner Property by quit-claim deed to 180 Talmadge, Inc., a New Jersey corporation, who conveyed it to Talmadge, Inc., a Missouri corporation.\\nA confirmation hearing was scheduled for January 18, 1996, pursuant to \\u00a7 141.580, RSMo 1994, which requires that the court, on its own motion or on the motion of any interested party, set the cause for hearing to confirm any sale of real estate made by the sheriff. At the confirmation hearing, the sheriff makes a report of the sale, and the court- hears evidence of the value of the property offered on behalf of \\\"any interested party to the suit.\\\" The court then determines whether adequate consideration has been paid for each parcel. Section 141.580.1. The confirmation hearing in this case was held on February 15, 1996. At the hearing, there were appearances by Jackson County, 180 Talmadge Co., T.C. Services, Inc., and Eugene Beck. Mr. Beck was not a formal party, and did not seek to intervene as a party. The issue raised at the hearing was whether the sale should be affirmed, or whether the sale should be set aside because, at the time of the sale, Transcon Lines was a debtor in bankruptcy in an involuntary bankruptcy case. The court expressed doubt as to Mr. Beck's standing to participate in the hearing, but did not rule on it. Mr. Beck informed the court he was ready, willing and able to purchase the land and brought a check for the amount of the back taxes with him. Counsel explained that Mr. Beck did not participate in the bidding at the public sale because he felt it was safer (from a title standpoint) to buy the property from the Land Trust. Mr. Beck also filed pleadings with the trial court urging the court to affirm the sale.\\nBoth Transcon and 180 Talmadge claimed that the sale was void due to the automatic stay provisions of the bankruptcy code. After considering the briefs filed, the trial court agreed, and entered judgment setting aside the Court Administrator's sale, finding that it \\\"was the result of irregularity[,] accident or mistake as set out in the motions to disaffirm and set aside.\\\"\\nMr. Beck now attempts to appeal this ruling. Mr. Beck wishes to purchase the property by paying the outstanding taxes. Mr. Beck did not bid on the property at the Court Administrator's sale. Nor does he have any legal or equitable claim to the property. He is a stranger to the property, except for the fact that he desires to purchase the property from the Land Trust at a price he considers favorable. A joint motion to dismiss was filed by respondents based upon Mr. Beck's lack of standing in these proceedings. That motion is granted and the appeal dismissed.\\nSection 141.590, RSMo 1994, provides that, \\\"[t]he collector or any interested person . may appeal from the judgment confirming or disapproving the sheriff's sale.\\\" Mr. Beck maintains that since he wishes to purchase the property he is an \\\"interested person\\\" under \\u00a7 141.590. The statute does not define the term \\\"interested person.\\\" Nor are there any eases directly addressing the meaning of the term in this statute. Mr. Beck claims that the fact that he received a notice of the confirmation hearing from the Collections Department is affirmative proof of such an interest since the form contains the sentence, \\\"Our records indicated that you have an equitable or a legal interest in the real estate property attached.\\\" Mr. Beck does not deny, however, that the reason he received a notice of the hearing is that he requested that the Department of Collections send him one. It is a standard notice of the type sent to persons claiming some ownership interest in the property. The affidavit of Vicki Fitzgerald, the Assistant Director of Collections, attached to the motion to dismiss, states that the notice was sent to Mr. Beck \\\"only after he had made request for such notice.\\\" Ms. Fitzgerald explains in the affidavit that \\\"[t]he notice sent to Appellant is a standard form and is used to provide notice to anyone who has requested notice of a confirmation hearing on a particular property sold to Land Trust.\\\" She also states that the Collections Department does not have any knowledge or information of any equitable or legal interest that Mr. Beck might have in the property. We conclude that the fact that Mr. Beck received notice of the hearing is immaterial. The notice confers no special status on Mr. Beck; he is not an \\\"interested person\\\" by reason of requesting and receiving ,the notice in question.\\nOur next inquiry is whether Mr. Beck's expressed desire to purchase the Gardner Property confers upon him the status of \\\"interested person.\\\" We note that at the confirmation hearing, \\\"any interested party to the suit\\\" may present evidence related to the value of the property. \\\"[T]he suit\\\" is a reference to the suit for foreclosure of the tax hen described in \\u00a7 141.400 RSMo 1994. Mr. Beck would not have had the right to present valuation evidence at the confirmation hearing, because he was not an \\\"interested party to the suit.\\\" Section 141.590, which deals with appeals from a confirmation or disapproval of a sale, was am\\u00e9nded in 1949 to provide that \\\"any interested person\\\" could appeal, whereas the statute previously specified only that \\\"any party\\\" could appeal. We are uncertain as to the intention of the legislature in the use of the term \\\"any interested person\\\" in \\u00a7 141.590, but we believe it is extremely unlikely that it was intended to give the right of appeal to someone who has no historical relationship to the legal or equitable ownership of the property, and who merely wishes to see the sale confirmed in order to have an opportunity to purchase the property from the Land Trust. We note that the legislature could have easily stated that \\\"any person\\\" could appeal from the trial court ruling, because any person going to the trouble of appealing obviously would have an \\\"interest,\\\" but only in the nonlegal sense of the word \\\"interest.\\\" To construe \\u00a7 141.590 as Beck desires would allow anyone at all to appeal.\\nIt is extremely unlikely that that is what was intended by the \\\"interested person\\\" language in \\u00a7 141.590. We believe that the phrase used in \\u00a7 141.590, \\\"interested person,\\\" implies a closer relationship to the action than that enjoyed by any member of the general public entertaining the notion of purchasing the property. We believe that because of \\u00a7 512.020 RSMo 1994, the phrase implies that a person must have some stake, claim, or historical connection with the property such that the person been \\\"aggrieved\\\" by the action in the trial court. See Hertz Corp. v. State Tax Comm'n, 528 S.W.2d 952, 954 (Mo. Banc 1975). Section 512.020 provides that a party who has been \\\"aggrieved\\\" has a right to appeal from a judgment of the trial court. An \\\"aggrieved\\\" party is one whose pecuniary or property rights or interests are directly affected by the judgment. Davis v. Allen, 740 S.W.2d 699, 700 (Mo.App. 1987). There must be some immediate consequence and not the mere possibility of some remote repercussions. Hertz, 528 S.W.2d at 954. \\\"Interest\\\" is \\\"[t]he most general term that can be employed to denote a right, claim, title, or legal share in something.\\\" BLACK'S LAW DICTIONARY 812 (6th ed.1990). Mr. Beck does not have any colorable right, claim, title or legal share in the property in question.\\nThis case is not like In re Foreclosure of Liens for Delinquent Land Taxes Big Action in Rem, 672 S.W.2d 730 (Mo.App. 1984), in which the court considered the ar gument of a purchaser at a foreclosure sale that the former owner could not be allowed to intervene because he lost all interest in the land at the time of the sale. The court rejected this reasoning and held that although the former owner had no interest in the land itself, he did have an interest in the proceeds. Id. at 731; see also City of St. Louis, Collector of Revenue v. Parcel 107 of Land, 702 S.W.2d 123, 125 (Mo.App.1985). In this case, Mr. Beck has neither an interest in the land nor an interest in the proceeds. He was not recognized as an intervenor in the circuit court proceedings, although he filed various suggestions and memorandum, and appeared at the confirmation hearing. \\\"Standing to sue is an interest in the subject matter of the suit, which, if valid, gives that person a right to relief.\\\" State ex rel. Twenty-Second Judicial Circuit v. Jones, 823 S.W.2d 471, 475 (Mo. banc 1992). The concept of standing is related to that of subject matter jurisdiction; it may be raised at any time. State ex rel. Mathewson v. Board of Election Comm'rs of St. Louis County, 841 S.W.2d 633, 634 (Mo. banc 1992). This court has the power to entertain the issue of standing, because lack of standing cannot be waived. Pace Constr. Co. v. Missouri Highway & Transp. Comm'n, 759 S.W.2d 272, 274 (Mo.App.1988).\\nUnder the foregoing analysis, we see no reason that even if Mr. Beck had been a failed bidder, he would have had standing to appeal. Nevertheless, Mr. Beck is not even a failed bidder \\u2014 he is simply someone who desires to purchase the property on particular terms. We conclude that he lacks standing to appeal the trial court's judgment setting aside the sale. Accordingly, we order that the appeal be dismissed.\\nAppeal dismissed.\\nULRICH, C.J., P.J., and BERREY, J., concur.\\n. The Land Trust is a creature of statute. Section 141.700, RSMo 1994, states:\\nThere is hereby created a commission for the management, sale and other disposition of tax delinquent lands, which commission shall be known as \\\"The Land Trust of . County, Missouri\\\", and the members thereof shall be known as land trustees. Such land trust shall have and exercise all the powers that are conferred by sections 141.210 to 141.810 necessary and incidental to the effective management, sale or other disposition of real estate acquired under and by virtue of the foreclosure of the lien for delinquent real estate taxes, as provided in said sections, and in exercise of such powers, the land trust shall be deemed to be a public corporation acting in a governmental capacity.\"}"

mo/12013778.json

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+"{\"id\": \"12013778\", \"name\": \"STATE of Missouri, Respondent, v. Michael Beals ELLIS, Appellant\", \"name_abbreviation\": \"State v. Ellis\", \"decision_date\": \"1997-07-29\", \"docket_number\": \"No. 21100\", \"first_page\": \"279\", \"last_page\": \"280\", \"citations\": \"949 S.W.2d 279\", \"volume\": \"949\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:52:04.547725+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARRISH, P.J., and BARNEY, J., concur.\", \"parties\": \"STATE of Missouri, Respondent, v. Michael Beals ELLIS, Appellant.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Michael Beals ELLIS, Appellant.\\nNo. 21100.\\nMissouri Court of Appeals, Southern District, Division Two.\\nJuly 29, 1997.\\nMichael Beals Ellis, Carrollton, pro se.\\nNo appearance for respondent.\", \"word_count\": \"662\", \"char_count\": \"4108\", \"text\": \"MONTGOMERY, Chief Judge.\\nAfter a non-jury trial, the trial court convicted Michael Beals Ellis (Defendant) of operating a motor vehicle without a valid operator's license in violation of \\u00a7 302.020.1(1), RSMo 1994. The court fined Defendant $10 \\\"plus $37 court costs.\\\"\\nDefendant appeals apparently attempting to raise two points challenging his conviction and sentence. We dismiss the appeal.\\nDefendant almost totally disregards the briefing requirements of Rule 30.06. The brief of an appellant in a criminal case \\\"shall contain: (1) A concise statement of the grounds on which jurisdiction of the review court is invoked; (2) A statement of the facts; (3) The points relied on; and (4) An argument which shall substantially follow the order of 'Points Relied On.' \\\" Rule 30.06(a).\\nDefendant's brief does not contain (1) a jurisdictional statement, (2) a statement of facts that are \\\"a fair and concise statement of the facts relevant to the questions presented for determination,\\\" as required by Rule 30.06(c), or (3) points relied on which even remotely comply with Rule 30.06(d).\\nThe primary purpose of the statement of facts is \\\"to afford an immediate, accurate, complete and unbiased understanding of the facts of the case.... \\\" Wipfler v. Basler, 250 S.W.2d 982, 984 (Mo.1952). Appellant's fact statement totally fails in this regard. In Overall v. State, 540 S.W.2d 637 (Mo.App.1976), the appellant's statement of facts was merely a history of the case. It contained none of the facts relevant to the issues sought to be raised. In dismissing the appeal for violation of Rule 84.04(c), the court said that \\\"[w]e can no longer tolerate gross inadequacy in appellate briefs.\\\" Id. at 638. Here, Defendant's statement of facts suffers from the same deficiency as that found in Overall.\\nRule 30.06(d) governs an appellant's points relied on and states in pertinent part:\\nThe points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous with citations of authority thereunder.\\nThree things are required to comply with Rule 30.06(d) regarding points relied on. Those requirements are \\\"(1) a statement of the action or ruling complained of; (2) why the ruling was erroneous; and (3) wherein the evidence or other matter supports the position the party asserts the trial court should have taken.\\\" State v. Rabe, 870 S.W.2d 453, 455 (Mo.App.1994). \\\"An insufficient point preserves nothing for review.\\\" Id.\\nUnder his \\\"Grounds for Appeal,\\\" Defendant states as follows:\\nI. Fatally Defective Information\\nII. Failure of Trial Court to Properly Consider and Rule on Question of \\\"Legislative Jurisdiction\\\"\\nIt is readily apparent that Defendant's \\\"Grounds for Appeal\\\" do not comply with Rule 30.06(d). Defendant's points do not mention any of the requirements described in the pertinent rule and Rabe. As a result, Defendant's points preserve nothing for review.\\nThe deficiencies in Defendant's brief are so serious that we are unable to attempt plain error review. It is not the duty of this Court to become an advocate for Defendant and comb through the entire record for error. Thompson v. Thompson, 786 S.W.2d 891, 892 (Mo.App.1990).\\nAlthough Defendant is proceeding pro se, he is bound by the same rules as a party represented by counsel. Williams v. Shelter Ins. Co., 819 S.W.2d 781, 782 (Mo.App.1991). We cannot allow a pro se litigant a lower standard of performance. Corley v. Jacobs, 820 S.W.2d 668, 671 (Mo.App.1991).\\nAccordingly, this appeal is dismissed.\\nPARRISH, P.J., and BARNEY, J., concur.\\n. Rule references are to Missouri Rules of Court (1996).\\n. Briefing principles applicable to civil cases apply to criminal cases even though the rules governing appellate briefs are separately stated in Rules 84.04 and 30.06. State v. Wright, 934 S.W.2d 575, 582 n. 5 (Mo.App.1996).\"}"

mo/12371274.json

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+"{\"id\": \"12371274\", \"name\": \"Paula MCCULLOUGH, Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"McCullough v. State\", \"decision_date\": \"2017-01-31\", \"docket_number\": \"WD 79532\", \"first_page\": \"153\", \"last_page\": \"153\", \"citations\": \"509 S.W.3d 153\", \"volume\": \"509\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T02:16:06.576989+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before Division Three: Alok Ahuja, P.J., and Victor C. Howard and James E. Welsh, JJ.\", \"parties\": \"Paula MCCULLOUGH, Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"Paula MCCULLOUGH, Appellant, v. STATE of Missouri, Respondent.\\nWD 79532\\nMissouri Court of Appeals, Western District.\\nFILED: January 31, 2017\\nMark A. Grothoff, Columbia, for appellant\\nRobert J. Bartholomew, Jr., Jefferson City, for respondent\\nBefore Division Three: Alok Ahuja, P.J., and Victor C. Howard and James E. Welsh, JJ.\", \"word_count\": \"190\", \"char_count\": \"1256\", \"text\": \"ORDER\\nPER CURIAM:\\nPaula McCullough was convicted following a bench trial in the Circuit Court of St. Clair County of four counts of receiving stolen property. After her convictions were affirmed on direct appeal, McCullough filed a motion for postconviction relief under Supreme Court Rule 29.15. Her appointed counsel filed an amended motion. As relevant here, the amended motion alleged that the prosecution failed to disclose to the defense prior to trial that several of the prosecution's witnesses had previous criminal convictions. McCullough contended that she was entitled to a new trial due to the nondisclosure of this impeachment material. The circuit court denied relief following an evidentia-ry hearing. McCullough appeals. We affirm. Because a published opinion would have no precedential value, we have provided the parties with an unpublished memorandum setting forth the reasons for this order. Rule 84.16(b).\"}"

mo/12373341.json

@@ -0,0 +1 @@
+"{\"id\": \"12373341\", \"name\": \"AMOSO REALTY, LLC, Plaintiff/Respondent, v. Monique MILTON, Defendant/Respondent, and Bryce Weathers, Proposed Intervenor/Appellant\", \"name_abbreviation\": \"Amoso Realty, LLC v. Milton\", \"decision_date\": \"2016-12-27\", \"docket_number\": \"No. ED 104375\", \"first_page\": \"373\", \"last_page\": \"376\", \"citations\": \"513 S.W.3d 373\", \"volume\": \"513\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:47:12.144292+00:00\", \"provenance\": \"CAP\", \"judges\": \"James M. Dowd, P.J., concurs.\", \"parties\": \"AMOSO REALTY, LLC, Plaintiff/Respondent, v. Monique MILTON, Defendant/Respondent, and Bryce Weathers, Proposed Intervenor/Appellant.\", \"head_matter\": \"AMOSO REALTY, LLC, Plaintiff/Respondent, v. Monique MILTON, Defendant/Respondent, and Bryce Weathers, Proposed Intervenor/Appellant.\\nNo. ED 104375\\nMissouri Court of Appeals, Eastern District, DIVISION FOUR.\\nFILED: December 27, 2016\\nMotion for Rehearing and/or Transfer to Supreme Court Denied January 30, 2017\\nApplication for Transfer Denied April 4, 2017\\nJames A Stemmier, St. Louis, MO, for appellant.\\nJames Clifton Robinson, St. Louis, MO, William Leo Floodman, III, O\\u2019Fallon, MO, for respondent.\", \"word_count\": \"1485\", \"char_count\": \"9315\", \"text\": \"KURT S. ODENWALD, Judge\\nIntroduction\\nBryce Weathers ('Weathers\\\") appeals from the trial court's order denying his motion to intervene in Amoso Realty's (\\\"Amoso\\\") suit for rent and possession against Monique Milton (\\\"Milton\\\"). Weathers filed his motion to intervene after Amoso (the plaintiff and counter-defendant) and Milton (the defendant and counter-plaintiff) filed a voluntary dismissal of all claims against one another under Rule 67.02(a). Because the trial court's order denying Weathers's intervention motion was not a final appealable judgment under Section 512.020, we dismiss this appeal.\\nFactual and Procedural History\\nAmoso filed a petition for rent and possession against Monique Milton. The petition alleged that Amoso was acting as the authorized agent of Weathers, the property owner, for purposes of the rent-and-possession action. The petition further alleged that Milton rented the property for $475 per month, and, due to Milton's failure to pay rent, Amoso sought restitution of the premises and damages for rent and other fees.\\nIn response, Milton asserted counterclaims against both Amoso and Weathers. The counterclaims alleged that Amoso and Weathers were negligent for failing to exterminate the bed bugs, and further alleged that Amoso and Weathers brought the rent-and-possession action in retaliation for Milton's reporting bed bugs to the St. Louis Health Department.\\nThe trial court entered an order granting leave for Milton to file a third-party petition against Weathers, but Weathers was never served and thus never became a party. The trial court set a court date for January 2016.\\nAmoso and Milton filed a joint \\\"STIPULATION FOR DISMISSAL\\\" on December 18, 2015. Regarding Amoso's claims against Milton, the stipulation stated that Amoso agreed to dismiss all claims against Milton with prejudice. The stipulation also stated that Milton would dismiss all of her claims against Amoso with prejudice and against Weathers\\u2014who had not yet been served\\u2014without prejudice. The corresponding entry on the trial court's docket was titled, \\\"Dismissed by Parties.\\\"\\nWeathers subsequently filed a motion to intervene in the rent-and-possession action, alleging that Amoso was the agent for Weathers in the lawsuit, and that Amoso and Milton had settled the case for their considerable benefit, without Weathers' \\\"knowledge, consent or authorization,\\\" thereby breaching Amoso's fiduciary duties to Weathers. Thus, Weathers requested leave to intervene.\\nAlmost two months later the trial court entered an order setting a hearing date on the motion to intervene. While our record does not contain a transcript of the hearing, the trial court subsequently ordered briefing on \\\"whether the proposed dismissal of December 18, 2015 is valid or not as per the face of the present record.\\\"\\nIn a subsequent written order, the trial court denied W\\u00e9athers's motion to intervene. The trial court reasoned that Amoso and Milton's Stipulation of Dismissal was a voluntary dismissal under Rule 67.02(a), which was effective\\u2014without judicial approval\\u2014on the date It was filed. Thus, the trial court found that it lacked jurisdiction and denied Weathers's motion to intervene. The written order did not contain the word \\\"judgment,\\\" but the corresponding docket entry stated, \\\"SEE ORDER AND JUDGMENT\\u2014THEREFORE, IT IS ORDERED THAT BRYCE WEATHERS [sic] MOTION TO INTERVENE . IS HEREBY DENIED. SO ORDERED: JUDGE PAULA P. BRYANT.\\\" The trial judge's name was typewritten. Weathers appeals.\\nDiscussion\\nBefore we reach the merits of the appeal, we have a duty to determine if Weathers is entitled to an appeal. State ex rel. Koster v. ConocoPhillips Co., 493 S.W.3d 397, 399 (Mo. banc 2016). The right to appeal is purely statutory. Buemi v. Kerckhoff, 359 S.W.3d 16, 20 (Mo. banc 2011). No right to appeal exists unless specifically provided for by statute. Id. Section 512.020 provides the general mechanism for determining who may appeal in a civil case, it states:\\nAny party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any: . (5) Final judgment in the case or from any special order after final judgment in the cause; . (Emphasis added.)\\nA final judgment is a prerequisite to appellate review, subject to exceptions not relevant here. Buemi, 359 S.W.3d at 20. A final appealable judgment is a writing signed by the judge and specifically denominated \\\"judgment\\\" or \\\"decree\\\" that resolves all issues in a case and leaves nothing for future determination. Basta v. Kansas City Power & Light Co., 410 S.W.3d 743, 746 (Mo. App. W.D. 2013); Rule 74.01(a).\\n\\\"The designation of 'judgment' may occur at the top of the writing, within the body of the writing, or in a docket-sheet entry, but it must be clear from the writing that the trial court is calling the document or docket-sheet entry a judgment.\\\" SLJ v. RJ, 101 S.W.3d 339, 340 (Mo. App. E.D. 2003) (emphasis added). The requirement that a trial court denominate a writing as a \\\"judgment\\\" is not a mere formality; it establishes a \\\"bright line\\\" test to determine when a writing is a judgment. City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997).\\nIn SLJ, a written trial-court order did not include the word \\\"judgment,\\\" although the docket entry stated, \\\"Judgment Granted.\\\" 101 S.W.3d at 340. This Court held that the written order did not constitute a final judgment because the written order was not denominated a \\\"judgment.\\\" Id. We further explained that the docket entry did not constitute a \\\"judgment\\\" because it lacked another requirement of Rule 74.01(a): it was not signed or initialed by the judge. Id. We held that the two documents (the written order and the docket entry) could not combine to create a final appealable judgment, even though the docket entry clearly referred to the written order. See id. We dismissed the appeal. Id.\\nIn Orf, this Court followed and applied our reasoning in SLJ on nearly identical facts. Orf v. Orf, 208 S.W.3d 306, 307 (Mo. App. E.D. 2006). The trial court issued an order that was not denominated a \\\"judgment.\\\" Id. The corresponding docket entry stated, \\\"Judgment Entered,\\\" but it was not signed or initialed by the judge. Id. After reviewing our analysis in SLJ, we held that \\\"this case involves an order that is not properly denominated, and an unsigned docket entry, and we lack jurisdiction to consider the appeal.\\\" Id.\\nWeathers appeals from the trial court's April 28, 2016, Order denying his motion to intervene. Similar to SLJ and Orf, the trial court's written order was not denominated a \\\"judgment\\\" and the order did not contain the word \\\"judgment.\\\" As in SLJ and Orf, we acknowledge that the corresponding docket entry stated, \\\"SEE ORDER AND JUDGMENT.\\\" We further note that the docket entry included the trial judge's typewritten name. However, the judge's typewritten name is not a signature for the purposes of Rule 74.01(a). See Rule 41.08(a) (\\\"Documents requiring a judge's or commissioner's signature may be signed by an original signature, stamped signature, or an electronic graphic representation of a signature.\\\"); see also Kearns v. New York Cmty. Bank, 389 S.W.3d 294, 297 n.5 (Mo. App. W.D. 2013) (in dicta, noting, \\\"If a judge's typewritten name appears beneath the docket entry, the signing requirement is satisfied if the judge initials the entry.\\\").\\nAs in SLJ and Orf, here we have an order that has not been denominated a \\\"judgment\\\" and an unsigned docket entry, neither of which constituted a final judgment. See SLJ, 101 S.W.3d at 340; Orf, 208 S.W.3d at 307. Because Weathers lacks a final appealable judgment, we dismiss this appeal. Id.\\nConclusion\\nThe appeal is dismissed.\\nJames M. Dowd, P.J., concurs.\\nGary M. Gaertner, Jr., J., concurs.\\n. All rule references are to Mo. R. Civ. P. (2015).\\n. All statutory references are to RSMo (Cum. Supp. 2012).\\n.Section 535.020 allows the landlord's agent (here, Amoso) to sue a tenant (Milton) as the named plaintiff in a rent-and-possession suit. Thus, the landlord (Weathers) need not become a party if the agent files the suit.\\n. Weathers does not suggest any other statutory authority entitling him to appeal.\\n. Section 512.020, subsections (1)-(4), also allows appeals from a few specific interlocutory orders. None of those subsections are relevant here.\\n. Further, this handwritten-typewritten distinction exists with regard to judicial initials constituting a \\\"signature.\\\" Compare Kessinger v. Kessinger, 935 S.W.2d 347, 349 (Mo. App. S.D. 1996) (handwritten initials satisfy the signature requirement) with Grissum v. Soldi, 87 S.W.3d 915, 917 (Mo. App. S.D. 2002) (typewritten initials do not).\"}"

mo/1315779.json

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+"{\"id\": \"1315779\", \"name\": \"Ada Adams v. Melvin Adams, Della Adams, Roy Adams, May Fowler, Pearl Cook, Clarence Adams, George Adams, Bertha Adams, Ella Adams, Hollie Adams, Opal Adams and Laura Jane Adams, Appellants\", \"name_abbreviation\": \"Adams v. Adams\", \"decision_date\": \"1942-11-10\", \"docket_number\": \"No. 38173\", \"first_page\": \"152\", \"last_page\": \"155\", \"citations\": \"350 Mo. 152\", \"volume\": \"350\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T01:01:43.424576+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur except Hays, J., absent.\", \"parties\": \"Ada Adams v. Melvin Adams, Della Adams, Roy Adams, May Fowler, Pearl Cook, Clarence Adams, George Adams, Bertha Adams, Ella Adams, Hollie Adams, Opal Adams and Laura Jane Adams, Appellants.\", \"head_matter\": \"Ada Adams v. Melvin Adams, Della Adams, Roy Adams, May Fowler, Pearl Cook, Clarence Adams, George Adams, Bertha Adams, Ella Adams, Hollie Adams, Opal Adams and Laura Jane Adams, Appellants.\\nNo. 38173.\\n165 S. W. (2d) 676.\\nDivision One,\\nNovember 10, 1942.\\nSpradling & Spradling for appellant.\\nJ. Grant Frye and Gerald B. Rowan for respondent.\", \"word_count\": \"1136\", \"char_count\": \"6487\", \"text\": \"CLARK, J.\\n\\u2014 An opinion on a former appeal in this case was adopted in Division Two of this court and is reported in 348 Mo. 1041, 156 S. W. (2d) 610.\\nThis is a suit for partition and sale of real estate in which respondent is plaintiff and appellant is one of the defendants. On the former trial in the circuit court, appellant filed answer alleging that he had furnished the money to purchase and improve the real estate and had paid the taxes thereon for a number of years, and praying that appellant be decreed the owner by virtue of a resulting trust. In the alternative, the answer asked credit for the taxes paid. The circuit court denied appellant's claim to a resulting trust and refused credit for taxes paid by appellant prior to the death of his mother, the holder of the record title, but allowed credit for such taxes paid after that time. On appeal this court approved the ruling of the circuit court in denying appellant's claim to a resulting trust, but held that appellant was entitled to reimbursement for taxes paid before as well as after his mother's death. We also agreed with the conclusions reached by the Supreme Court of Arkansas in Walker v. Eller, 178 Ark. 183, 10 S. W. (2d) 14, under which appellant would also have been entitled to recover money paid by him in improving the real estate, if he had asked for same in his answer. In the opinion we said:\\n\\\"He did not ask an accounting for improvements in this case, but did for taxes he had paid, .- . . We hold an accounting should be made of all taxes . . . shown by this record to have been paid by appellant both before and after the mother's death in 1935.\\\"\\nWe then stated that the ease should be reversed and remanded for another reason, to wit, that the respective shares of the parties in the real estate were incorrectly stated in the judgment, and concluded the opinion with this sentence:\\n\\\"The cause is reversed and-remanded for further proceedings in partition not in conflict herewith.\\\"\\nWhen our mandate went to the circuit court the cause was re-docketed and appellant asked leave to file an amended answer, praying reimbursement for taxes and improvements and for a lien for same. Respondent objected on the ground that our opinion and mandate did not contemplate a new trial, but only permitted the court to compute .the taxes paid by appellant before his mother's death, and add them to the taxes which the record showed he paid after that time and declare a lien for the aggregate amount.\\nThe court sustained this objection and entered judgment for partition and sale of the real estate with a lien in favor of appellant for all taxes shown by the record to have been paid by him. Appellant filed a motion to set aside the order refusing him permission to file the'amended answer, which was overruled by the court and appellant again appealed to this court.\\nRespondent has filed a motion to dismiss the appeal for alleged imperfection of appellant's abstract, but we hold the abstract substantially complies with our rules.\\nRespondent also contends that we should not consider the case on the merits because no motion for a new trial was filed, but we think the motion heretofore mentioned, asking the court to set aside its order refusing appellant permission to file an amended answer, was, to all intents and purposes, a motion for new trial.\\nIn the case of Sheppard v. Wagner, 240 Mo. 409, 144 S. W. 394, the opinion closed with the words: \\\"Judgment reversed and cause remanded to be proceeded with according to the views in this opinion expressed.\\\" On a motion for rehearing, in an opinion by Judge Graves, this court held that the language quoted did not prevent a retrial in the circuit court, saying: \\\"Our judgment was not a remanding of the cause with directions to enter any specific judgment, nor to proceed in any particular way. ' '\\nIn Wilcox v. Phillips, 260 Mo. 664, l. c. 677, 169 S. W. 55, in an opinion by Judge Lamm, we approved Sheppard v. Wagner and said: \\\"Nor, closer home, is there anything in the phrase employed by us in remanding this case when here before, to wit, 'to be proceeded with therein in accordance with this opinion,' which forecloses the right to amend, to raise new issues, and to have the case on a second appeal determined on a record presented by such second appeal.\\\"\\nThe closing language of our former opinion did not direct a specific judgment nor prevent the trial court from permitting appellant to amend his answer, but respondent calls our attention to the fact that she filed a motion to modify our former opinion, stating that it left it \\\"uncertain as to whether a new trial should be had or whether or not the trial court should simply account for all taxes shown by the printed abstract of the record and give appellant credit therefor.\\\" Our records show the motion was sustained and the opinion modified by the change of only one word. In our former opinion as first written, one of the sentences above quoted read: \\\"We hold that an accounting should be made of all taxes shown by the record\\\" etc. As modified, the italicized word \\\"the\\\" was changed to \\\"this.\\\"\\nBy the modification we did not intend to limit or clarify the formula by which our opinion closed, but only to say that we were announcing our conclusions on \\\"this\\\" record, that is, the record then before us.\\nOur opinion held that appellant should be reimbursed for taxes paid before as well as after his mother's death. It also indicated that he would have been entitled to reimbursement for improvements if he had prayed for same in his answer. There was nothing in our opinion or mandate to prevent the trial court from exercising a judicial discretion to permit appellant to amend his answer. The record now before us shows that the trial judge refused such permission under the mistaken view that he was prevented by our opinion. Accordingly, the judgment is hereby reversed and cause remanded so that the trial court may exercise such discretion as to the filing of an answer to cover improvements as well as taxes, and for further proceedings not inconsistent with this or our former opinion.\\nAll concur except Hays, J., absent.\"}"

mo/1375028.json

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+"{\"id\": \"1375028\", \"name\": \"THE STATE ex rel. WYANDOTTE LODGE NO. 35 OF THE INDEPENDENT ORDER OF ODD FELLOWS et al. v. EVANS, Judge, et al.\", \"name_abbreviation\": \"State ex rel. Wyandotte Lodge No. 35 of the Independent Order of Odd Fellows v. Evans\", \"decision_date\": \"1903-06-30\", \"docket_number\": \"\", \"first_page\": \"310\", \"last_page\": \"327\", \"citations\": \"176 Mo. 310\", \"volume\": \"176\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T21:33:47.325906+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur, except Burgess, J., who dissents.\", \"parties\": \"THE STATE ex rel. WYANDOTTE LODGE NO. 35 OF THE INDEPENDENT ORDER OF ODD FELLOWS et al. v. EVANS, Judge, et al.\", \"head_matter\": \"THE STATE ex rel. WYANDOTTE LODGE NO. 35 OF THE INDEPENDENT ORDER OF ODD FELLOWS et al. v. EVANS, Judge, et al.\\nIn Banc,\\nJune 30, 1903.\\n1. Suit to Foreclose Mortgage: legal or equitable action. The suit provided by the statute to foreclose a mortgage is an action at law. But the remedy given by that statute is not exclusive. Courts of equity retain their original jurisdiction and mortgages are still foreclosed through equity jurisprudence.\\n2. -: -: case stated. A lodge, organized for charitable and benevolent purposes in^l857, in order to acquire real estate and to erect a hall in which to hold its meetings, promoted and obtained the incorporation of a stock company, which acquired and held title to the property in dispute for the sole use and benefit of the lodge, the stock company being the trustee and the lodge the cestui que irust, but this relation was rendered the more intimate by the lodge owning through three of its trustees all the stock of the company, so that as to the stock the legal title was in these three trustees while the equitable title was in the lodge, but as to the real estate the stock company held the legal and the lodge the eauitable title. The holder of past due notes executed by the stoclc company brought suit to foreclose a deed of trust on the lodge hall, and the defense was set up that the slock company\\u2019s corporate existence had expired by limitation of law in twenty years (in 1877) and two of the lpdge\\u2019s trustees still surviving held the title as trustees for the lodge, and the deed of trust subsequently made by the defunct stock company was not valid. EelcL, that the questions involved could only be determined in a court of equity.\\nS. --: -: judgment AT law. If the pleadings present to the court a suit in equity, its character can not be changed into an action at law by the fact,that the decree in one respect took the form of a judgment at law. An equitable action to foreclose a deed of trust'is not turned into one at law by the fact that the judgment also takes the form of a judgment in personam against the mortgagor, even though that part is erroneous, which in this suit is \\u25a0 not the case if the relator\\u2019s claim be true that the mortgagor is a defunct corporation.\\n4. -: EQUITABLE PROCEEDING: APPROVAL OP SALE: APPEAL: PROHIBITION. In an equitable proceeding to foreclose a deed of trust the court has jurisdiction to decree that the sale under execution and the sheriff\\u2019s deed shall pass title to the purchaser and that he shall be let into possession, and if the court so decreed before the sale is made and before the sale is confirmed, it is at most only such error as may be corrected on appeal, and hence is not such error as will authorize the Supreme Court to prohibit the circuit court from issuing a writ of assistance to put the purchaser into possession.\\n5.---: \\u2014---: - WHAT AMOUNTS TO CONFIRMATION. Will're the purchaser at the' sale of the sheriff, who was by the court\\u2019s decree directed to sell the mortgaged property and pass title, after receiving his deed, exhibiting it to the parties in possession and demanding to be let into possession, but, being refused, applies to the court for a writ of assistance, and all the parties are present to be heard, a judgment by the court awarding the writ, is a confirmation of the sale, if, indeed, any confirmation was necessary.\\n6. - \\u2014 : -: writs oir assistance. Courts of equity in the exercise of their jurisdiction in the foreclosure of mortgages have power to issue writs to put the purchaser into possession of the property sold. This authority is given them by statute (see. 1598, R. S. 1899).\\nProhibition.\\n\\\"Writ denied.\\nH. F. Wieman, B. F. Pursed and Porterfield, Sawyer & Conrad for relators.\\n(1) Assuming that the proceedings are in equity (which relators deny) to foreclose a mortgage or deed of trust, the sale of the property .made therein must be confirmed by the court. (2) The purchaser of property at a sale thereof made in a proceeding to foreclose a mortgage or deed of trust in a court of equity is not entitled to a writ of assistance or possession to put him in possession of the same, prior to the confirmation of said sale by the court. (3) The foreclosure proceedings in question are not proceedings in equity, but are under the statutes and at law. (4) The statutes authorizing the foreclosure of mortgages and deeds of trust make no provision for a judgment for possession, and that part of the decree of foreclosure in question granting the same is null and void. (5) The purchaser of property a.t a sale made by the sheriff in a proceeding to foreclose a mortgage or deed of trust under the statutes is not entitled to a writ of assistance or possession in that no provision therefor is made by the 'statutes. (6) A writ of prohibition is a proper remedy when the action of the circuit court exhibits evidences of excess of jurisdiction as well as when exhibiting absolute absence of jurisdiction. Prior to a discussion of the propositions set out above, it may not be amiss to briefly consider the nature of a writ of assistance or possession. Writs to obtain possession of property are often loosely referred to as writs of restitution, possession or assistance, without regard to the nature of the writ. Correctly speaking, these writs are separate and distinct. The object of a writ of restitution is to restore to a party the specific thing, or- its equivalent, of which he has been deprived by the enforcement of a judgment; the object of a writ of possession is to give to one entitled thereto the actual possession of that which has been recovered in an action. Originally a writ of possession ,was used only in the common-law action of ejectment. Later, however, it has been used in a limited sense in proceedings in equity, but not in such proceedings to foreclose mortgages or deeds of trust where, as has been pleaded by respondents, the almost universal writs used are writs of assistance. Therefore, bearing this fact in mind, and in view of the frequency with which these writs are designated as writs of assistance or possession without making any distinction between them, and in view of' the fact that both terms are used in the pleadings in this court, we take it that it was not the intention of respondents to use said terms in their technical sense, and the writ which it was intended to obtain and which the court intended to grant, was a writ of assistance, and we shall so treat the same, though so far as the issues here involved are concerned it matters not by what name the particular writ in question is denominated. If a writ of assistance should not have issued much more manifestly should a writ of possession not issue. 16 Ency. Pl. and Pr., p. 744; vol. 18, p. 870. But what is a writ of assistance? It is \\u201cthe ordinary process used by a court of chancery to put a party, receiver, sequestrator or other person in possession of property when he is entitled thereto, either upon a decree or upon an interlocutory order. The most familiar instance of its use is where land has been sold under a decree foreclosing a mortgage; but it is also employed wherever a court of equity, having jurisdiction of the person and property in controversy, has determined the rights of the litigants to the title or possession of its real estate.\\u201d 2 Ency. Pl. and Pr., p. 975; Jones v. Hooper, 50 Miss. 510; Root v. Woolworth, 350 U. S. 401. Wherefore it appears that writs of assistance are peculiar to courts of chancery and their most familiar use is under decrees foreclosing mortgages and deeds of trust.\\nWarner, Bern, McLeod & Holden for respondents.\\n(1) The proceeding in the Jackson Circuit Court, wherein the decree of foreclosure was rendered, was a suit in equity. Brim v. Fleming, 135 Mo. 597; Hannah v. Davis, 112 Mo. 599; Weary v. Wittmer, 77 Mo. App. 546; Riley v. McCord, 24 Mo. 265; McClurg v. Phillips, 49 Mo. 315; Wolff v. Ward, 104 Mo. 127. (2) Writs of assistance are and have always been recognized as inherent in the jurisdiction and power of courts of equity in the foreclosure of mortgages as well as in other proceedings in equity relating to the title and possession of real property. Such writs are not only not unknown in the jurisdiction of this State, but are in fact expressly recognized by statutes and decisions. R. S. 1889, sec. 1598; Jones on Mort. (4 Ed.), sec. 1663; 11 Ency. Pl. and Pr., pp. 975, 978; Beach, Mod. Eq. Pr., sec. 897; Wiltsie on Mort. Fore., sec. 593; Root v. Woolworth, 15 U. S. 411; Montgomery v. Tutt, 11 Cal. 190 ; Kershaw v. Thompson, 4 Johns. Ch. 610; Woodsworth. v. Tanner, 94 Mo. 128; Henderson v. Dickey, 50 Mo. 161; Baker v. St. Louis, 7 Mo. App. 429, 75 Mo. 671; Motz v. Henry, 54 Pac. 796; Watkins v. Jerman, 36 Kan. 464; 8 Am. and Eng. Ency. Law (1 Ed.), p. 273. (3) What has been said heretofore, it must be noted, has reference to the equity jurisdiction. The question of procedure is another matter. Hannah v. Davis, 112 Mo. 608; State ex rel. v. Johnson, 132 Mo. 108. Numerous other authorities might be cited from the courts in this State to the same effect, but there- can be no question to the proposition that since the adoption of the code there has been in this State but one- form of action' for the enforcement or protection of private rights and redress or prevention of private wrongs, which shall be denominated a civil action. R. S. 1899, sec. 539. Therefore, in matters of procedure, whether the proceeding is an action at law or a suit in equity, the code and the statutes so far as they touch upon the mat ter or contain enactments governing the procedure expressly or by intent, must be followed. (4) The sale was in fact confirmed by order of court. Agan v. Shannon, 103 Mo. 666; Jones v. Manly, 58 Mo. 559; Grayson v. Weddle, 63 Mo. 538. (5) No showing has been made or can be made of an excess of jurisdiction to justify the issuance of a writ of prohibition. Under the authorities cited, the issuance of a writ of assistance was within the jurisdiction of the lower court. All parties' have had a hearing upon two occasions and for any errors of law or fact appeal or writ of error are the only remedies. Having prima facie jurisdiction below, this court will not correct a mistaken exercise of it, even if it should now think any such mistake had been committed. State ex rel. v. Valliant, 100 Mo. 61; State ex rel. v. Withrow, 141 Mo. 80; Coleman v. Dalton, 71 Mo. App. 24.\", \"word_count\": \"6465\", \"char_count\": \"35871\", \"text\": \"VALLIANT, J.\\nThis is an original proceeding by which the relator seeks a writ to prohibit a judge of the circuit court in Jackson county issuing a writ of assistance to put the purchaser into possession of certain real estate which was sold under a decree of that court in a suit to foreclose a deed of trust.\\nThe application for the writ of prohibition is based on two propositions: first, that the suit in which the foreclosure judgment was rendered was an action at law in which relator says no writ of assistance can issue; second, if relator is mistaken in the nature of that suit and it is to be adjudged a suit in equity, then it says the court has exceeded its jurisdiction in ordering the writ of assistance because there had been no confirmation of the sale which was essential to the passing of the title.\\nI. We have a statutory proceeding to foreclose a mortgage which has been adjudged to be an action at law. Section 4342, Eevised Statutes 1899, provides that a mortgagee may file his petition in the circuit court against the mortgagor and those in possession of the property \\\"setting forth the substance of the mortgage deed, and praying that judgment may he rendered for the debt or damages, and that the equity of redemption may be foreclosed, and the mortgaged property sold to satisfy the amount. ' ' In that brief quotation is defined the entire scope of the petition contemplated in the proceeding there authorized. The judgment to be entered in such a suit, if plaintiff is successful, is prescribed in sections 4350 and 4351 following, which is, if the mortgagor has not been summoned or does not appear, that the plaintiff \\\"recover the debt and damages, or damages, found to be due, and costs, to be levied of the mortgaged property, ' ' and if the mortgagor has been summoned or appears, the judgment in addition to the above is to be \\\"that if the mortgaged property is not sufficient to satisfy said debt and damages, or damages and costs, then the residue to be levied of other goods and chattels, lands and tenements of said mortgagor. ' '\\nThat is the statutory proceeding which this court from the beginning has decided to be an action at law as distinguished from a suit in equity. [Thayer v. Campbell, 9 Mo. 281; Riley v. McCord, 24 Mo. 265; Fithian v. Monks, 43 Mo. 502; Pemberton v. Johnson, 46 Mo. 342.] The proceeding there contemplated deals with no uncertain parties and no equivocal titles. Tho parties are the mortgagee on the one side and the mortgagor and the man in possession on the other; the one holding the legal title with a defeasance, the other holding the equity of redemption and the possession; the only duties of the court are to ascertain the amount due on the mortgage debt and pass judgment that the property he sold for the amount so ascertained and that execution issue,for the balance, if any, against the mortgagor 's other property. \\\"When that is all there' is of substance in a case it is a suit at law, even though the petition denominate it a suit in equity and states the case in language more appropriate to bills in equity. [Riley v. McCord, 24 Mo. 265.]\\n' But the remedy given by that statute is not exclusive. Courts of equity retain their original jurisdiction and mortgages are still foreclosed through equity jurisprudence. [McClurg v. Phillips, 49 Mo. 315; Hanna v. Davis, 112 Mo. 599; Brim v. Fleming, 135 Mo. 597.] If a case which involves, among other things, the foreclosure of a mortgage must for that reason be limited to the proceeding given in the statute, that proceeding would often be found to be inadequate, because, while under its forms the amount of the debt can be ascertained and the equity of redemption be ordered to be sold to pay it and execution against the mortgagor-awarded for the balance, if any, yet there may be other complications involved which only a court of equity can adjust. [Wolff v. Ward, 104 Mo. 127.] In our code of civil procedure we start out by saying that there shall be but one form of action for the enforcement or protection of private rights which is to be called a civil action (section 539, R. S. 1899), yet we do not say, and it would be futile to say, that we no longer observe the fundamental distinctions that exist between causes that are to be adjudged according to principles of equity and those that are to be measured by the rules of law. And whilst we submit all causes to the judgment of one court of the highest original jurisdiction, yet, in order to render that court competent to fulfill its duty, we have been compelled to clothe its presiding officer not only with the attributes of a law judge, but also with those of a chancellor. Hnder our judicial system, the distinction between law and equity is as clearly observed as it is under the'systems in vogue in those States in which separate courts are held for the disposal of equity causes.\\nWhether a cause arising in the circuit court is to be judged to be an action at law or a suit in equity must depend on the facts of the case, and although the form of the pleadings and of the judgment or decree may have some influence, yet the substance of the controversy must control the decision of the question. If the pleader in his petition, or the court in its decree, has through misconception of the nature of the cause added something inconsistent with its true nature, such may or may not, according to its bearing on the case, render the proceeding erroneous, but it .will not change its character in respect to the .question as to its being an action at law or a suit in equity.\\nTo determine, therefore, whether the foreclosure suit with which we have now to deal was a suit in equity or a proceeding under the statutes, let us first look at the pleadings. According to the petition the facts of the case are as follows: The plaintiff is the holder of past due notes, and a deed of trust to secure them, which were executed in 1892. by the Wyandotte Hall Joint Stock Company (which will hereinafter be called the Stock Company) which was chartered by a special act of the General Assembly in 1857. Wyandotte Lodge No. 35 of the Independent'Order of Odd Fellows (which will hereafter be called the Lodge) is and was in 1857 and had been long prior to that date a voluntary association for charitable and benevolent purposes. The Lodge consisted of about 125 members, and under its constitution, and by-laws James O. McKeehan, L. B. Austin, and Samuel M. Taylor, who are defendants in the suit, are the trustees to own, hold and manage all the property of the Lodge. In 1857 the Lodge, being desirous of acquiring real estate and erecting a house or hall in which to hold its meetings, and being unable in itself to raise the required capital, in order to obtain outside financial assistance, promoted and obtained the incorporation of the Stock Company. It was\\\" provided in the charter that the trustees of the Lodge were to have the privilege of purchasing the stock of the Stock Company, and acting on that right they did purchase and have since held and now hold all the stock of the corporation for the nse of the Lodge. In 1892 the Lodge, being desirous of erecting a new building for its use, by resolution authorized the Stock Company to borrow $25,000 for that purpose, and to secure the same by deed of trust on the land described in the petition, the title to which was then held by the corporation for the use of the Lodge. In accordance with that direction the corporation borrowed that amount of money from one Snyder, and to secure the same executed its notes and the deed of trust in question. The plaintiff before the maturity of the notes'purchased the same for value. The money so borrowed was used in erecting a building on the land and the same has ever since been in the possession and use of the Lodge and the trustees thereof. The terms of the deed of trust which include \\u00e1 power of sale are set out in the petition, but it is unnecessary to repeat them here.\\nAt the date of filing the suit the principal note and some of the interest notes were due and unpaid and other breaches of the conditions of the deed had occurred. The insolvency of the corporation, the depreciation of the property in value, its insufficiency to pay the debt, its mismanagement, and misappropriation of the rents by the defendants, are alleged in the petition as reasons why the court should appoint a receiver. It is also alleged that the individual defendants, the trustees, and the officers of the corporation have denied the validity of the plaintiff's security on the ground that the alleged corporation which was chartered in 1857 had expired by limitation in 1877 under the provision of the general statute limiting the life of corporations to twenty years, and was not in legal .existence in 1892 when the notes and deed of trust were executed. But the petition says that in fact, whatever the law on the point may be, the stockholders and officers of the corporation kept up the organization by annual election of officers and transaction of business, treating it as a live concern, holding it out as such, and on tlie faith of snch display, of life borrowed the money and erected the building on the lot and that they are now estopped to deny the validity of the act. The Stock Company, McKeehan, Austin, and Taylor as trustees of the' Lodge, and Mr. Dean, the trustee in the deed of trust, are made parties defendant. The prayer of the petition is that the amount of the plaintiff's debt be ascertained, that it may have judgment for the amount against the defendants other than the trustee in the deed of trust, that the deed be declared a valid and first lien on the real estate, that the property be so sold to satisfy the debt; that defendants ' equity of redemption therein be thereby foreclosed; that in the meantime a receiver be appointed to take .possession of the property, to collect the rents and preserve the same to the end that they be used to protect the property from taxes, etc., and finally applied towards payment of the debt, and for general relief.\\nThe return of the sheriff on the summons is not in the record before us, but we infer from what does appear that the service as to the Stock Company was on Mr. Porterfield as its president. Mr. Porterfield in his own name was allowed to file what in the proceedings is called a plea, which was to the effect that the Stock Company, having been incorporated in 1857, ceased to exist as a corporation in 1877, by force of the twenty years' limitation; that at the date of the deed of trust in question it had no corporate existence and its alleged acts were null and void.\\nThe individual defendants who are sued as trustees of the Lodge filed an elaborate answer in which they made a specific denial of each material allegation in the petition including that of their own alleged title ia the property, and averred that the Stock Company had ceased to be a corporation in 1877 having expired by limitation, that of the last board of directors two were yet living, that the title to the property owned by the corporation at the date of the expiration of the charter passed to the individuals composing the then board of directors as trustees and is now held by the two surviving members, whose names, however, the answer does not state, nor does it state that they are unknown to the defendants answering. The plaintiff came back with a reply which was to the effect that under the circumstances already stated the defendants were estopped to deny the corporate existence of the Stock Company or the validity of the deed of trust.\\nIn the foregoing summary we have- not given the full statements that are set forth in the pleadings as might be necessary if the record in that case were now before us for review on appeal, but only sufficient to show the nature of the suit and the character of the issues of law and of fact that the court had for trial.\\nThe cause was tried by the court upon the pleadings and proofs adduced and there was a finding of all the issues for the plaintiff. On the question of the corporate existence of the stock company at the date of the deed of trust, the court makes a special finding to the effect that from the date of the act of incorporation down to and including that of the execution of the notes and deed of trust, the concern continued to act as a corporation holding regular elections and in all respects behaving as if it were a legal entity, and that the defendants, the trustees of the Lodge, owned all the stock for the use of- the Lodge; and that the Lodge had by a resolution directed its trustees as such stockholders to obtain the loan in question through means of the corporation; that the money was obtained by this means and used for the erection of the building in the name of the Stock Company and had been ever since its erection in the use of the defendants and that therefore they were estopped to deny the corporate existence of the Stock Company.\\nThe court found that there was due on the notes $38,085.26, for which sum and interest it rendered judg ment against the Stock Company, and decreed that the deed of trust to secure that debt was a first lien on the real estate in question; that the same be sold by the sheriff-of the county \\\"in the same manner as lands are sold under the Jaws of this State under ordinary executions for the sale of real estate, and that upon such sale and the payment to, the sheriff of the purchase price thereof, the said sheriff shall execute and deliver to the purchaser a good and sufficient deed of conveyance of said land and improvements which shall vest in said purchaser the title thereto free and clear of all claims, rights or demands of the defendants and each of them and all persons in privity with or claiming by, through or under them, or any of them, and that the title of such purchaser to said land and improvements be and the same is hereby quieted, confirmed and established against all of said defendants and all persons claiming or to claim by, through or under them or any of them; and it is further ordered, adjudged and decreed that the defendants and all such persons above referred to, be and they are hereby barred and foreclosed of all equity of redemption or claim in and to said land and improvements and any and every part thereof. It is further ordered, adjudged and decreed by the court that the purchaser of said land and improvements at said sale be let into possession thereof and to every part thereof, and that defendants and each of them who may be in possession thereof or any part thereof and any and all persons who since the commencement of this suit, have come into possession thereof, or any part thereof, deliver possession to such purchaser upon the production to them of the sheriff's .deed therefor and in default thereof that a writ of possession issue out of this court to put such purchaser into possession according to law.\\\" Then follows direction to the sheriff as to the appropriation of the proceeds of the sale, first to the costs, then to the debt and the surplus to the Stock Company. The decree concluded with a judgment for costs against the Stock Company and an award of execution to enforce the decree in all its parts.\\nThere was an appeal taken by the defendants which is now pending, but as there was no supersedeas, execution issued, a sale occurred at which the respondent Alsop became the purchaser, received the sheriff's deed which he exhibited to the defendants and their tenants, and demanded possession which they refused. Then he applied to the court which rendered the judgment for a writ of assistance to put him in possession. Notice of this application was duly given to the defendants and their tenants and also to the Lodge which entered a special appearance and filed an answer in which ii claimed to be a corporation and the sole owner in possession of the property and contested the right of Alsop to the writ asked for and the jurisdiction of the court to issue it. The trustees, Austin and Taylor, answered, as did also some of the tenants, all contesting the right of the purchaser to the writ and the authority of the court to issue it. The application came on for hearing upon the petition by the purchaser, the answ\\u00f3rs, or returns, of the parties, and the proofs adduced on the issues of fact raised. There was a finding for the petitioner on the facts and the court awarded a writ to put him in possession. There is no necessity, for the purpose of our present inquiry, to set out here the details of the order, its conditions, limitations, etc. The general purport of the order was that, as against the Lodge the trustees and their tenants, the purchaser at the sheriff's sale was to have possession of the property. Upon the entering of that order the Lodge filed its petition for the writ of prohibition we are now asked to issue.\\nThe foregoing epitome is sufficient to show that there were questions in the case of such a nature as could not be settled in a tribunal proceeding within the limits that circumscribe a court in the trial of an ordinary law suit, questions of a character certainly different from those which were in the minds of the law makers when they enacted our statute above quoted providing for the foreclosure of a mortgage, questions of the very character which rendered the establishment of courts of equity jurisdiction a necessity in the administration of justice.\\nIf the relator's idea in reference to the expiration of the life of the corporation is correct, then the court had to deal with a title in the clouds, with no one tangible by the process of the court except those having only the equitable interest, those for whose use the property was acquired. If the statements in the petition are true, the Stock Company acquired and held the title to the property for the sole use and benefit of the Lodge; the Stock Company was the trustee and the Lodge the cestui que trust; the Stock Company held the legal and the Lodge the equitable title. This relation was rendered the more intimate by the Lodge owning though its trustees all the stock in the Stock Company, so that, as to the stock the legal title was in the trustees while the equitable title was in the Lodge. It is said in the answer of the trustees that two of the members of the board of directors, who were such in 1877, when the life of the corporation expired, are still alive, that the legal, title to the property passed to them on the demise of the corporation, and is now held by them. The issue on th\\u00e1t point is not sufficiently tendered, because the names of the alleged surviving directors are not given. The court could not find for the defendants on that issue unless it could locate the title, and that it could not do unless it was informed of the individuals who held it. If, therefore, it is true that the corporation, at the date of the deed of trust, was dead, we have a case (if the statements in the petition are true) in which the trustee is dead but the cestui que trust has assumed management of the property, has put forward certain persons professing to represent the trustee, has induced confidence to be placed in them as such, has obtained a large amount of money through that means, and now denies the validity of their act and deed on the ground that they had no legal authority to do as they did. In a court which deals with strict rules of law alone, the position could perhaps be sustained, but a court of equity can adjust the rights of the parties on broader principles. In such case if the legal title has dissolved or become intangible, a court of equity alone, can reconstruct it out of the equitable interests that remain'.\\nWe have not intended by anything that is here said to express or intimate any opinion on the merits of the controversy, but only to indicate the nature of the controversy so that we can judge whether it is a suit in equity or an action at law. It is a suit in equity.\\nII. On one point the decree takes the form of a judgment in personam against the stock company, and this is considered by relator as showing conclusively that the proceeding is an action at law. If the pleadings presented to the court a suit in equity its character would not be changed because the decree, erroneously it may be, in one respect took the form of a judgment at law. If the court, under the pleadings, had no jurisdiction to enter a personal judgment, that much'of the decree would be void, but the rest of it is not dependent on it. And if there was in this case in that particular an excess of jurisdiction, it was on a point that in no manner affected the relator. If what the relator now says about the stock company is true, a judgment against it amounts to nothing^ and at all events relator has no cause to complain of it.\\nIII. Eelator's next proposition is that, if it is a suit in equity, then title to the property did not pass by the sale and sheriff's deed, but is held in suspense until the sale shall be confirmed by the court.\\nThe usual course of procedure in courts of chancery in such case was for the officer or special commissioner, who was ordered by the decree to make the sale, to report his act to the court and await its further order; then if the act was confirmed he would make the deed, and then the court, if it deemed it right to do so, would order a writ to issue to put the purchaser into possession. In the case at bar the court by its decree ordered the sheriff: to sell the property as in case of ordinary sales of land under executions, to execute a deed to the purchaser, receive from him the purchase money and pay it out in a certain way. The decree also declared that the title to the property should pass to and vest in the purchaser and that he, on conditions therein named, should be let into possession. In these particulars the decree did not follow the ancient chancery practice but passed judgment on points that under that practice would not have been adjudged until the coming in of the report of the officer or commissioner. Upon the part of respondent it is argued that whilst equity jurisdiction is preserved in our courts, yet as to procedure our code of procedure applies, where it can apply, as well to equity as to law cases. We will not decide that question now, nor intimate any opinion on it, because it is not necessary for the purpose of this application to do so, and because to decide it now might be to anticipate the decision on that point when the case comes before us, for review on appeal. If the decree ought to have followed, in the respect complained of, more closely the ancient chancery procedure, the most that can be said against it is that in that respect it was erroneous, but that would not be. the same as saying that the court exceeded its jurisdiction. The court has said in its decree that the sale and sheriff's deed should pass the title to the purchaser and that he should be let into possession. The court was dealing with a subject over which it had jurisdiction and the decree is valid and binding until, if-ever, it is reversed on appeal.\\nIt appears that after the sale by the sheriff and the delivery by him of the deed to the purchaser, the latter went with his deed to the parties in possession and demanded to be let into possession as the decree required, but they refused and then the purchaser applied to the court for the writ of assistance. In the hearing of that application; the relator, with others interested, was present and participated. All the facts necessary to show that the purchaser was entitled to have that provision of the decree relating to putting him in possession were shown to the court, and all that the relator and others desired to show to the contrary was shown, and after a full hearing the court decided that the' purchaser was entitled to the writ and so ordered. If a confirmation of the sale was necessary the judgment of the court on that application was a confirmation. [Jones v. Manly, 58 Mo. 559; Grayson v. Weddle, 63 Mo. 538.]\\nThat courts of equity in the exercise of their jurisdiction in the foreclosure of mortgages have the power to issue writs to put the purchasers into possession of the property sold, is a proposition well established. [Jones on Mort. (4 Ed.), sec. 1663; 2 Ency. Pl. and Pr., 975, 978; Wiltsie on Mort. For., sec. 593; Root v. Woodsworth, 150 U. S. 411; Kershaw v. Thompson, 4 John, Ch. *p. 610; Woodsworth v. Tanner, 94 Mo. 124, l. c. 128.]\\nUnder the ancient chancery proceeding it is called a writ of assistance and there is no objection to that name in our.practice. Our statute gives to our courts express authority to issue all writs necessary in the exercise of their jurisdictions. [Sec. 1598, R. S. 1899.]\\nNothing we have said in this opinion is intended as passing judgment on any points in the decree or the proceedings which the parties appealing therefrom conceive to be error, but we have viewed the case only from the standpoint of relator who has challenged the validity of the action of the court in awarding a writ of assistance upon the ground that the court in awarding the writ exceeded its jurisdiction. We hold that the court had jurisdiction to issue the writ, and that it was in duty bound to do so if in its own judgment the right and justice of the case demanded it.\\nThe writ of prohibition is denied.\\nAll concur, except Burgess, J., who dissents.\"}"

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+"{\"id\": \"1376347\", \"name\": \"Sam Norris, Mrs. Kann Norris Davis, Almar Norris, Mrs. Margaret Norris Smithwick, Tom Norris, Clifford Norris, Mrs. Charlie Lovvorn, Annie Margaret Norris Cantrell, Charles Norris, Willie Pearl Norris Caffey, Riggs Norris, Marguerite Norris, Thomas Williams, Bunk Williams, Mrs. Bonnie Williams Forhand, Houston Stone, Appellants, v. Ed. H. Bristow and Ollie May Bristow, Respondents\", \"name_abbreviation\": \"Norris v. Bristow\", \"decision_date\": \"1951-01-08\", \"docket_number\": \"No. 41781\", \"first_page\": \"691\", \"last_page\": \"703\", \"citations\": \"361 Mo. 691\", \"volume\": \"361\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:22:00.713531+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wesihues and Barrett, CO., concur.\", \"parties\": \"Sam Norris, Mrs. Kann Norris Davis, Almar Norris, Mrs. Margaret Norris Smithwick, Tom Norris, Clifford Norris, Mrs. Charlie Lovvorn, Annie Margaret Norris Cantrell, Charles Norris, Willie Pearl Norris Caffey, Riggs Norris, Marguerite Norris, Thomas Williams, Bunk Williams, Mrs. Bonnie Williams Forhand, Houston Stone, Appellants, v. Ed. H. Bristow and Ollie May Bristow, Respondents,\", \"head_matter\": \"Sam Norris, Mrs. Kann Norris Davis, Almar Norris, Mrs. Margaret Norris Smithwick, Tom Norris, Clifford Norris, Mrs. Charlie Lovvorn, Annie Margaret Norris Cantrell, Charles Norris, Willie Pearl Norris Caffey, Riggs Norris, Marguerite Norris, Thomas Williams, Bunk Williams, Mrs. Bonnie Williams Forhand, Houston Stone, Appellants, v. Ed. H. Bristow and Ollie May Bristow, Respondents,\\nNo. 41781\\n236 S. W. (2d) 316.\\nDivision Two,\\nJanuary 8, 1951.\\nMotion for Rehearing or to Transfer to Banc Overruled, February 12, 1951.\\nE. C. Hamlin, E. A. Barbour, Jr., C. M. Wantuok and Howell Washington for appellants.\\nRoseoe G. Patterson for respondents.\", \"word_count\": \"2981\", \"char_count\": \"17202\", \"text\": \"BABBETT, C.\\n[ 318] This is the second trial and appeal of an action to contest and set aside the will of W. O. Norris on the grounds of mental incapacity and undue influence. The testator died on the 9th day of December 1946 and by his will executed on the 23rd day of April 1946, \\\"As I have no near relatives whatsoever, and only distant ones whose names and addresses I do not know at this time, ' ' devised all his property, real and personal, in excess of the value of $10,000.00, \\\"to my two closest friends, Ed. H. Bristow and Ollie May Bristow, husband and wife.\\\" The contestants are a brother, Samuel B. Norris, eighty-eight years of age, a sister, Mrs. Kann Norris Davis, eighty-one years of age, both of Murfreesboro, Tennessee, and fourteen nieces and nephews who live in Tennessee, Indiana and elsewhere. In both trials juries have returned verdicts sustaining the will and the contestants have appealed. Our decision upon the former appeal is Norris v. Bristow, 358 Mo. 1177, 219 S. W. (2) 367.\\nUpon that appeal it was held that the testimony of certain lay witnesses and the provision of the will, \\\"As I have no near relatives whatsoever,\\\" made a submissible question of the testator's mental capacity to execute the will. As to undue influence the court considered the relationship of the Bristows and Mr. Norris, the terms of the will and all the relevant circumstances and said: \\\" As to the question of undue influence, we are of tbe opinion that while - the evidence was not very convincing, it was sufficient to submit that question to a jury.\\\" In addition, the court considered the admissibility of certain evidence and the correctness of certain instructions. The cause was reversed and remanded because' of the giving of prejudicially erroneous .instructions.\\nUpon this the second appeal by the contestants there are sixteen principal assignments of error. It is urged that the proponents, the Bristows, did not adduce sufficient evidence for a prima facie case of the testator's sanity and capacity to make a will. It is urged, in this connection, that there was no evidence by the proponents,that the testator knew or understood the value, nature and extent of his property. It is insisted that the .court erred in admitting the testimony of Mr. Harry D. Durst, the scrivener, in which he said that Mr. Norris told him, when they were preparing the will, that \\\"I am not under any obligations to my relatives. I have got a number of nephews and nieces, some of them I don't know their names or where they live. But I am not under any obligations to my relatives.\\\" It is insisted that the court erred in permitting one of the principal beneficiaries, Ed. H. Bristow, to testify, for the reason that he was an incompetent witness under Mo. R. S. A., Sec. 1887 as an interested party to a suit in which the other party was deceased. It is insisted that the court erred in rejecting the evidence of Mr. Sam Norris and of 'Mrs. Kann Davis as to their financial condition and necessity. It is urged that the trial court erred in overruling the contestants' motion to construe Article II of the will beginning, \\\"As I have no near relatives whatsoever.\\\" It is argued that the court erred in giving the proponents' instructions one, two, four, five, six, nine and eleven and in refusing [319] contestants' instructions E, I and J, and in striking from instruction A the words \\\"and their situation in life.\\\"\\nIn their essence virtually all of these assignments of error were urged and either, directly or inferentially decided upon the former appeal and the adjudication of that appeal and the questions presented constitute the law of this case and of this appeal unless the former ruling was palpably wrong; which the contestants do not contend, or unless there is a substantial difference in the evidence and the facts upon the two trials. Mangold v. Bacon, 237 Mo. 496, 517, 141 S. W. 650; Turner v. Anderson, 260 Mo. 1, 168 S. W. 943, a will case; State ex rel. Bush v. Sturgis, 281 Mo. 598, 221 S. W. 91. The former adjudication is not only the law of the case as to all questions directly raised and passed upon but it is also the law of the case as to matters which arose prior to the first appeal and which might have been raised thereon but which were not raised or presented. 5 C. J. S., Sees. 1821, 1823-1827, 1964a, pp. 1267-1281, 1499. The contestants do not question these general rules but insist that our opinion on the first appeal is not the law of this case because the evidence upon this appeal is different from the evidence upon the former appeal in that two witnesses testified upon this trial who did not testify on the former appeal. One of these witnesses was a proponents' witness, an employee of a funeral home, who testified to the arrangements for Mr. Norris' funeral and the part Mr. Bristow had in them. The other witness was a contestants' witness, Mrs. Dorothy de Buyter, who was engaged to marry Mr. Norris when he was stricken. Her evidence, in some respects, was material and could well have been important, but, without discussing the full import and connotation of some of her .evidence, it was obviously a question of practical advisability and trial strategy whether she should have been called as a witness. But aside from that, all the other witnesses testified in both trials and in its essentials there is no substantial difference in the evidence and facts upon the former trial and appeal and this one and the former adjudication is the law of this appeal.\\nFor example, it is now objected that the court erred in permitting Mr. Durst, the scrivener, to testify to statements the testator made as they were drafting the will. Aside from the question of the admissibility of the testimony (Hayes v. Hayes, 242 Mo. 155, 145 S. W. 1155; Berkemeier v. Reller, 317 Mo. 614, 296 S. W. 739), the question was raised upon the former appeal and it was held that \\\"The evidence of Mr. Durst was admissible on the question of undue influence and also with reference to mental capacity. His evidence was admissible to show the circumstances surrounding the testator at the time of the execution of the will. ' ' And, the rule of ' ' the law of the case\\\" applies to a decision as to the admissibility of evidence. 5 C. J. S., Sec. 1834(d), p. 1293. Likewise with the testimony of the principal beneficiary, Mr. Bristow, it was held upon the former appeal that he was not an incompetent witness by reason of the statute, Mo. R. S. A., Sec. 11387 and, under the rule in this jurisdiction, he was not an incompetent witness. Garvin's Adm'r. v. Williams et al., 50 Mo. 206. The various views on the subject are collected in the annotation, 115 A. L. R. 1425. It was inferentially decided, and the question could have been raised on the former appeal (5 C. J. S., Sec. 1825, p. 1279) that the proponents made a prima facie case of the testator's mental c\\u00e1pacity to make the will. But in addition to the question's having been decided, upon this trial there was apparently not the contest as to this issue that there was upon the former appeal and the proponents adduced sufficient evidence of the testator's capacity, as the jury found. There was no single witness to the fact of the testator's knowledge of the nature and extent of his property but that he had the requisite knowledge is a fair inference from the record. His banker testified that on November 8, 1946 (Mr. Norris died December 9, 1946) Mr. Norris made a deposit of $100.00 and at that time there was approximately $3926.72- in his account. Several witnesses had been his tenants and h'ad purchased houses from him \\\"on contract\\\" [320] and were making payments to him both before and after the execution of the will and from these transactions it is a reasonable inference that he was well acquainted with the nature and extent of his property when the will was executed. It is also a fair inference from the evidence that the value of all his properties, in addition to the bank account, is in excess of $10,000.00 and less than $15,000.00 as stated in our former opinion.\\nWhen Mr. Sam Norris, the testator's aged brother, was testifying the court sustained an objection to the question, \\\"Do you have any income, Mr. Norris?\\\" The contestants then made an offer of proof \\\"if he has any income, any property, to show what his needs were, in order to show that he might have been an object of the bounty of the testator according to his needed deserts.\\\" The contestants urge that the exclusion of the evidence was prejudicial error. It is true, as a general rule, that the financial condition and needs of those who are the natural objects of the testator's bounty is admissible when there is an issue of testamentary capacity. Hamner v. Edmonds, 327 Mo. 281, 36 S. W. (2) 929; Mowry v. Norman, 223 Mo. 463, 122 S. W. 724. This rule of evidence is .a part of the rule that an unnatural or unjust disposition of the testator's estate is a circumstance tending to throw some light on testamentary capacity. Ann. Cas. 1917E, p. 130. But it is an essential part of the rule, that the financial condition and needs of those who might expect to be provided for, that the testator was aware of or had knowledge of their condition. 68 C. J., See. 65, p. 459; Hamner v. Edmonds, supra. Here there was no offer to show that Mr. Norris had such knowledge. There was testimony that he had intermittently corresponded with one or two of his nieces but it had been fourteen years since he had seen his brother or sister in Tennessee and that was upon the occasion of his father's funeral. There was no evidence and no offer of proof that he was acquainted with their needs and financial condition when he executed the will and for at least ten years prior to that date and, in the circumstances, it was not prejudicially erroneous to exclude the evidence.\\nBefore the trial began the contestants filed a motion to construe Article II of the will, \\\"As I have no near relatives whatsoever, and only distant ones whose names and addresses I do not know at this time, It is urged that the court erred in overruling the motion. The point to the contestants' argument is that the word \\\"as\\\" should be construed to mean \\\"because\\\" or \\\"since\\\" I have no near relatives. In this connection the contestants offered and the court refused an instruction defining the word \\\"as.\\\" But this is a suit to contest the will and not a suit to construe its provisions. Upon the former appeal it was held that the terms of the will, particularly this clause, were for the jury's consideration upon the issues of mental capacity and undue influence. The court was not called upon to construe the will and it was not error for the court to refuse to define, by instruction, the commonly known word \\\"as.\\\" Thompson v. City of Lamar, 322 Mo. 514, 17 S. W. (2) 960.\\nSeveral of the given instructions to which the contestants now object were given upon the former trial and while there was no specific objection or ruling with respect to them upon the former appeal their correctness and applicability to the issues could have been considered. 5 C. J. S., Sec. 1834(e), p. 1296. Instruction one on the execution of the will and testamentary capacity was, according to the contestants, instruction four ripon the former trial. The instruction is not comparable to the instruction in Hartman v. Hartman, 314 Mo. 305, 284 S. W. 488, and was obviously copied from Lareau v. Lareau, (Mo.) 208 S. W. 241; 4 Raymond, Missouri Instructions, Sec. 10181, p. 204. Instruction two upon the-subject of sound mind, the natural objects of the testator's bounty and age and physical weakness was instruction five upon the former trial except that the word \\\"naturally\\\" was omitted from the instruction upon the second trial. The instruction was copied from Schultz v. Schultz, 316 [321] Mo. 728, 293 S. W. 105. The opinion in that case distinguishes Post v. Bailey, (Mo.) 254 S. W. 71, upon which the contestants rely. Instruction five as to the subscribing witnesses was instruction twelve upon the former trial and, in substance, was copied from Grimm v. Tittman, 113 Mo. 56, 20 S. W. 664. Instruction four upon the subject of \\\"undue influence\\\" and the opportunity of the Bristows to influence the testator was instruction eleven upon the former trial. In part this instruction was excerpted from Gordon v. Burris, 153 Mo. 223, 54 S. W. 546, and the proponents concede that the instruction standing alone, while abstractly correct, might mislead the jury upon the issue of \\\"undue influence.\\\" But as the proponents point' out the court gave the contestants' instruction D, copied from Andrew v. Linebaugh, 260 Mo. 623, 659, 169 S. W. 135, elaborating upon this same subject and issue and when the instructions are considered together, as they must be (Clark v. Powell, 351 Mo. 1121, 175 S. W. (2) 842), instruction four may not be said to be prejudicially erroneous in the circumstances of this case. . Instruction six upon the subject of the testator's kinsmen, their right' to his estate and his absolute right to dispose of his property was instruction eight upon the former trial and appeal. The instruction, in part, was criticized in our former opinion (358 Mo., l. c. 1188, 219 S. W. (2), l. c. 371) and the criticized part of the instruction was omitted upon the second trial.\\nInstruction nine upon the subject of sound mind and disposing memory and mental capacity was offered upon the former trial but refused. It is urged that the instruction does not properly define mental capacity and omits the requirement that the testator must have known the value, nature and extent of his property and the names of his relatives who were the natural objects of his bounty. However, the contestants' instruction A fully covered this subject, including the burden of proof and was instruction P-1 from Schultz v. Schultz, 293 S. W., l. c. 107, and when, as that case holds, all the instructions are considered instruction nine is not erroneous. Instruction eleven concerning any statements or declarations the testator may have made regarding the making of his will was not given upon the former trial. The appellant urges that it was not a correct statement of the law and that there, was no issue upon the state of his affections for his relatives. But ag'ain, the instruction was copied from Tant v. Charles, (Mo.) 219 S. W. 572, 575, and according to the testimony of Mr. Durst the declarations of the\\\" testator may have had some bearing upon the state of his affections even though the declarations were not evidence of the truth of .the facts therein stated. In any event the giving of the instruction was not so prejudicially erroneous as to require the granting of a new trial. Mo. R. S. A., Sec. 847.140. And we are unable to find that there is any irreconcilable conflict in any of the given instructions.\\nThe contestants refused instruction E dealing with the subject of the Bristows' relationship to the testator hypothesized their confidential relationship in connection with undue influence and what was required for an affirmative finding in that regard. Instruction I was to the effect that a finding of undue influence alone was sufficient to impeach the will. Contestants' given instructions C, D and F dealt fully with this subject and their instruction B on undue influence plainly directed the jury \\\"if from a consideration of all the evidence the jury believe that the said last will was procured by undue influence, they will find said document is not the last will and testament of said W. O. Norris.\\\" It was likewise ,a plain implication from the other instructions on the subject that a finding of undue influence alone was sufficient to set aside the will. Their refused instruction H defined \\\"natural objects of the testator's bounty\\\" but in addition to the instruction's not being complete in itself, as has been indicated/ proponents' instruction nine and contestants' instructions A, B and D adequately covered the subject and the refusal of this additional instruction was not prejudicially erroneous. Nor was it error to strike the words \\\"and their situation in life\\\" from instruction A since there was [322] no evidence that Mr. Norris had notice or knowledge of their need and financial situation.\\nThere was not such prejudicial error upon this second trial as to require another new trial and the judgment is accordingly affirmed.\\nWesihues and Barrett, CO., concur.\\nPER CURIAM:\\nThe foregoing opinion by Barrett, C., is adopted as the opinion of the court.\\nAll the judges concur.\"}"

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+"{\"id\": \"1396026\", \"name\": \"CATHOLIC UNIVERSITY OF AMERICA, Appellant, v. O'BRIEN et al.\", \"name_abbreviation\": \"Catholic University of America v. O'Brien\", \"decision_date\": \"1904-03-23\", \"docket_number\": \"\", \"first_page\": \"68\", \"last_page\": \"93\", \"citations\": \"181 Mo. 68\", \"volume\": \"181\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:51:57.256827+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"CATHOLIC UNIVERSITY OF AMERICA, Appellant, v. O\\u2019BRIEN et al.\", \"head_matter\": \"CATHOLIC UNIVERSITY OF AMERICA, Appellant, v. O\\u2019BRIEN et al.\\nDivision Two,\\nMarch 23, 1904.\\n1. WILL: Capacity: Test. The test of capacity to make a will is that the testator be capable of comprehending all of his property and all persons who reasonably come within the range of his bounty, and have sufficient intelligence to comprehend his ordinary business, and to know what disposition he is making of his property.\\n2. -: -: Monomaniac: Advanced Age: Peremptory In- \\u2022 sttuction. The testator was a man of more than ordinary intelligence, was quite well educated, was well informed, and something over seventy years old. He went to his attorney to prepare the contents of the will, stating the names of his legatees, the amounts he wished to give each, and the attorney outlined the will for him in pencil, and with that as a memorandum he went away, drew it up himself, and in a short time returned, and asked the attorney and a friend to witness it for him, first telling them it was his will. He had drawn up papers of the same kind before about which he consulted the same attorney, and at the time he asked for the outline of the will in suit said he had changed his mind about the disposition of his property. He had in the former wills made bequests to a daughter, but had afterwards become angry at her marriage. He chose his own executor, a discreet business man. He was feeble from advanced age, but seemingly not unusually so for men of his age. He suffered from vertigo, catarrh and heart trouble, and drank whiskey, but was not a drunkard. The attorney who drew the outline of his will stated he was a monomaniac on the disposition of his property, but that he knew what he was doing when he made his will, knew his children, and what disposition he was making of his property, and mentioned in so many words what he wanted to do with it, and in such a way .that he understood how to make the draft of the will so as to \\u25a0carry out his intention. Nothing was disclosed in the evidence which tended to show that the testator was not in the full possession of all his mental faculties at the time he executed the will. Held, that the testimony of the attorney that he was a monomaniac amounts to nothing, and that the court should have given a peremptory instruction to the jury that the holograph was the testator\\u2019s will.\\n3. -: -: Injustice to Children. However unjust a testator may be to his children, if he is competent to make the will, he has the right to dispose of his property as he pleases, in the absence of undue influence and fraud.\\nAppeal from Lawrence Circuit Court . \\u2014 Hon. Henry C. Pepper, Judge.\\nReversed and remanded (with directions).\\nThos. Carlin, B. H. Landrum and Henry Brumbach for appellant.\\n(1) Upon all the facts given in evidence, there is nothing to sustain the conclusion that the testator was not possessed of all the qualifications of memory and of knowledge necessary to qualify him to make a will, or that he did not act deliberately and intelligently in making the will in question, and the will was formally executed. There was nothing for the jury to pass upon. Cash v. Lust, 142 Mo. 630; Sehr v. Lindenman, 153 Mo. 276; Wood-v. Carpenter, 166 Mo. 465; Martin v. Bowdern, 158 Mo. 379; Biggin v. Westminster College, 160 Mo. 570; Campbell v. Carlisle, 162 Mo. 634; Full-bright v. Perry County, 145 Mo. 432; McFadin v. Catron, 138 Mo. 197. (2) The first instruction given for defendants is confusing and erroneous. While it may properly enough define what degree of mental capacity was required of the testator, it was error in the state of the evidence, after the plaintiff had proved the formal execution of the will and that testator knew what property he had and what he was doing with it and who his children were, to instruct the jury that such burden still rested on plaintiff. The burden had been shifted to defendants. Fullbri'ght v. Perry County, 145 Mo. 442; McFadin v. Catron, 138 Mo. 213. Such instruction is further erroneous and confusing, because, after this premise, it goes on to instruct, therefore (for that reason) \\u201cif the jury finds that the will produced be not the will of Maurice 0 \\u2019Brien, their verdict may he in the following form. \\u2019 \\u2019 This language was evidently meant to give, and doubtless did give, the jury the impression that they must find their verdict as therein recited. The second instruction for the defendants was clearly a comment on the evidence. McFadin v. Catron, 120 Mo. 274; Fine v. St. Louis Public Schools, 39 Mo. 67; Choquette v. Barada, 28 Mo. 491; Oil Well Supply Co. v. Wolfe, 127 Mo. 626; Hoffman v. Hoffman\\u2019s Executor, 126 Mo. 498. The third instruction for defendant may have been appropriate to the case of Farmer v. Farmer, 129 Mo. 530, from which it is copied; but in the present case there was no evidence upon which to base it.\\nW. Cloud for respondent.\\nThere is substantial testimony to support the verdict, and since the law has provided that the question shall be submitted to a jury, and that the verdict shall be final except as to errors of law, it should not be disturbed. There is no error in the instructions. Taken, altogether the law is fairly stated, and nothing calculated to prejudice the jury against plaintiff was given in the instructions of the court. Lyne v. Marcus, 1 Mo. 410'; Young v. Redenbaugh, 67 Mo. 589; Appleby v. Brock, 76 Mo. 314; Garland v. Smith, 127 Mo. 567; Moore v. McNalty, 164 Mo. Ill; Muller v. St. Louis Hospital Assn., 5 Mo. App. 390; s. c., 73 Mo. 242.\", \"word_count\": \"9314\", \"char_count\": \"50063\", \"text\": \"BURGESS, J.\\nThis is an action by plaintiff, one of the legatees named in the will of Maurice O'Brien, deceased, to have said will, which had been rejected by the probate court of Lawrence county, where O'Brien lived at the time of his death, proved, as provided by section 4622, Revised Statutes 1899. Upon issue joined in the court below the trial resulted in a verdict and judgment for defendants, from which plaintiff, after filing motion for a new trial and the same being' overruled, appeals.\\nMaurice O'Brien was seventy-tbree years of age at the time of the execution of the will. He had lived in Pierce City, Lawrence county, for many years, and died there in 1895, the owner of real and personal property located there, and of real property in Chicago. In November, 1894, he executed the will in question. At that time F. C. Johnson was a lawyer residing in Pierce City. He had assisted in drafting a previous will for Maurice O'Brien. O'Brien went to his office and instructed him how he wished to dispose of his property, and employed him to put the will in question in form; he returned later, and took away the draft Johnson had made, wrote it out in his own hand, and later brought back this holograph will and signed it at Johnson's office and had Johnston and Otis C. Maxey, who was reading in the office, to sign as witnesses. He left surviving him, one son, Thomas Joseph, and two daughters, Mary and Alice. He was a Catholic. . By this will he (1) provides for payment of his debts and gives $20 to Father Healy and $10 to Father Thomas, to say masses for the repose of his soul and of his deceased son; (2) gives his son, Thomas Joseph, $2,000, and his daughter, Mary, $1,000, and his dwelling in Pierce City, furniture, piano, etc., and to his daughter Alice nothing; (3) gives his nephew John H. O'Brien, and his sister $300 each, and to his brother Richard's widow $300, and to his cousin, Mrs. Patrick Power, $200; (4) gives the Mission of the Immaculate Virgin for the protection of homeless and destitute children, a corporation of New York, $500'; (5) gives to Charles A. Vissani, or his successor as commissary of the Order of St. Francis, etc., $500; (6) directs $25 to be deposited in Lawrence County Bank to be used to keep his cemetery lot in order; and (7) gives the residue of his property to the Catholic University of America.\\nFebruary 14, 1895, this will was presented to. the probate court of Lawrence county, for probate, and tbe probate court rejected it \\\"for tbe reason that bis mental condition was such that be was incompetent to make a will.\\\"\\nTbe present action to prove and establish such will was brought by the Catholic University of America in the circuit court of Lawrence county against all the heirs and all the beneficiaries under such will of said deceased. The petition was filed June 22, 1898, and all the defendants were brought into court to answer to the August term, 1898, several of them by summons, and the others by order of publication. An amended petition was filed. February 13, 1900. The amended petition differs from the original only by the allegation that ' ' said Maurice 0 'Brien at the time of his death left real estate and personal property located in said county of Lawrence in the State of Missouri, and this action affects the establishment of the lawful right thereto.\\\" The petition alleges in substance that plaintiff is a corporation; that Maurice O'Brien died January^ 1895, a resident of Lawrence county, Missouri, testate; that on November 17, 1894, he was upward of twenty-one years of age, of sound mind and competent under the laws of Missouri to make his will, and did make his will in writing, signed by him and attested by two competent witnesses, viz., F. C. Johnson and Otis C. Maxey, subscribing their names to such written will in the presence and at the request of the testator; that on February 14, 1895, such will was presented to the probate court of said county for proof and was on such date by such court rejected; that the said written, subscribed and attested paper is the last will of Maurice O'Brien; that he left him surviving, his sole children (and descendants of deceased children) Thomas Joseph O'Brien, Mary Kiely and Alice Daily; alleges the disposition he made of his property, the same as above recited; that the defendant Eliza A. 0 'Brien claims to be the widow of deceased and is made party for that reason, but is not his widow, bnt was legally divorced in his lifetime, and in the decree all her rights to and in his estate, living and dead, were finally determined;, that deceased left property located in said Lawrence county; that said Thomas Joseph O'Brien, Mary Kiely, John H. O'Brien, Alice O'Brien, Mrs. Richard O'Brien,' Ellen Meany Power, otherwise known as Mrs. Patrick Power, The Mission of the Immaculate Virgin, etc.,, Godfrey Schilling, Commissary, etc., are non-residents of Missouri; and asks that said will may be proved, and an issue be made up whether the said writing be the will of Maurice O'Brien or not.\\nDefendants, Lewis L. Allen, Thomas Lustenberger, The Lawrence County Bank, Eliza O'Brien, Daniel Healy, and Alice Daily were served with summons; all the other defendants by publication. '\\nAugust 23, 1900, Alice Daily and Eliza O'Brien filed their separate answer, alleging that they deny all allegations, not specifically admitted; admit the death of Maurice O 'Brien and that Thomas, Mary and Alice are his sole surviving children; aver that if Maurice O'Brien did sign the instrument propounded as his will, then at the time of signing the writing mentioned in the amended petition, said Maurice 0 'Brien was of unsound mind and was not capable of making a will and was unduly influenced in signing the same; that at the time of the order of publication more than five years had elapsed since the rejection of the will by the probate court; and assert no information whether plaintiff is a corporation or not, and deny it.\\nL. L. Allen filed his separate answer denying all the allegations of the petition.\\nAll the other defendants failed to plead.\\nAugust 23, 1900, plaintiff filed replication, denying all allegations of new matter in the answer of Alice Daily and Eliza O'Brien.\\nF. C. Johnson, one of the attesting witnesses, testified that Maurice O'Brien was over twenty-one years of age. He owned Ms dwelling house in Pierce City, and notes and money, and had property in Chicago. The last years of his life he was in quite feeble health; he stayed about home most of the time; of course he came down town occasionally, frequently came to my office; I had some little business with him from time to time; he seemed to be a man of considerable information; appeared to be a man that at one time had been quite well educated; in later years he was not so strong and didn't appear to take so much interest in matters generally; think he took some newspapers; he was a man who was inclined to pay attention to what was going on; he was a very pleasant man to have about, a good conversationalist, and pretty well informed; that was some years back that I have reference to; he didn't go about very much and was not in my office very much the last year or so of his life. (Examining the will): This is the will. This is the will he wrote. I think, I prepared the contents of it. I outlined it for Mr. 0 'Brien only a short time before it was signed. It was signed in my office the 17th day of November, 1894. The entire paper is in the handwriting of Mr. 0 'Brien. He wrote his name to it in my presence and the presence of Otis C. Maxey. I wrote the attestation clause in my handwriting. My name and that of Mr. Maxey were attached at request of Mr. O'Brien. He said the paper was his will. He was at my office a few days before the signing of this paper; he had made papers of this kind before and consulted me about the manner of getting them up; but he always wanted to write them himself so it would appear in his own handwriting. He said he wanted me to prepare another will for him; he said he had changed his mind about the disposition of his property, and he wanted me to go over it with him and outline another will. I did it in writing in pencil. He mentioned the names of his children; he designated all the parties, devisees and legatees named in the will. -He said he wanted his property to- go to the parties whose names appear in this paper. Mr. 0 'Brien knew the names of his children and all the other people. This will is quite different from the others I assisted in preparing. He was in the office more than once; as many as twice; it might have been an hour at a time. Part of the time he would appear to be free from nervousness, and at others he would get excited and get up and walk about the office while he was giving his directions. Some of his domestic affairs hadn't gone to suit him; it appeared his daughter had married against his will. He cut her off. He selected Allen as executor at his own suggestion. Allen is an experienced, discreet business man.\\nOn cross-examination, he said: I remember something of the circumstances of him hiding out $1,000 in a can and losing it, the time his wife got a divorce. I should say I had assisted him in preparing five or six wills; the last previous one not more than a year or two before this one. His daughter, Alice, had lived with him. Previous to that his son Prank had lived with him, and had died. His divorced wife lived in Pierce City. Mrs. Kieley, Mrs. Daily, _Frank and Thomas Joseph were his only children I knew of. He provided for Alice in his previous will. She married only a short time before he signed this will. He would speak about his wife and the death of his son, Prank, and then that the marriage of his daughter broke up his home. He was not satisfied with her marriage. The principal thing he spoke of was that she didn't stay at home and keep house for him. He was a very devout Catholic. The last year or so he failed quite rapidly. He complained a good deal of his head; he spoke something, about his stomach being out of order. He was not as companionable as he had been. When he came in the first time to have this last will prepared after his daughter had married, he walked in somewhat hurriedly and sat down and did not say anything for a good little while, and got up and walked about the room a time or two before he said anything, frequently putting his hand to his head, saying something under his breath that I couldn't understand. I simply saw he was laboring under considerable excitement of some kind. He told me what he wanted to do, and said, \\\"You fix it up and I will write it up myself,\\\" and my recollection is, he came the second time before he was through with the outline of the paper he prepared. He told me what he wanted done and I outlined it myself and I think in the form it. is there. He had the old will with him and tore it up and stuck it in the stove. He didn't look at it but very little. He seemed to want to make it very different from what it was before. My opinion is this University wasn't mentioned in the former will. I should judge him to be seventy years old. He said in the will he was seventy-three. A day or two after his second visit, he brought the will, written off in his handwriting ; he laid it down and said he was ready to have it signed. He said it was his will and asked me if Mr. Maxey and I would witness it. I prepared the attestation clause and we signed it at his request and in his presence. He probably remained half an hour. His residence was a little over three blocks from my office, and my office was upstairs.\\nOtis C. Maxey, the other attesting witness, said: I saw Mr. O'Brien sign his name to the paper (in question); F. C. Johnson and I signed it as witnesses at his request. My understanding was that he had Mr. . Johnson outline the will for him and this memorandum was given to Mr. O'Brien and the will was written by himself. Mr. O'Brien told Mr. Johnson to whom he wanted to give his property. He seemed to be in feeble health.\\nDr. Thomas J. Oonaty said: I am director and president of the Catholic University of America. I knew Charles A. Yissani, named in the will of Maurice O 'Brien; he is dead; Godfred Schilling is his successor in the office named.\\nDaniel Healey said: In 1894 I was in charge of the Catholic church at Pierce City; among Catholics I was commonly known by the name Father Healey, and I am the person referred to by that name in the will of Maurice O'Brien. I knew Father Thomas Lustenberger; he was commonly known by the name Father Thomas. I knew Maurice O'Brien; he died January 10, 1895; I saw him a few hours before his death; his mental condition seemed to be good; I think I must have met him in November, 1894; I usually saw him twice a week, and sometimes oftener; he had been suffering a long time with indigestion and heart trouble and might have been weaker than men of his age would have been, free from diseases; he left three living children; his other child had died about a year previous to his death; after he and his wife separated his son Francis kept house for him till his death; and after that his daughter Alice, until her marriage; after her marriage none of his family lived with him; he had a good education for a man of his avocation; he had a good library'; he took a great deal of interest in the Gallic language; he spoke and read it very well; he gave me lessons in it; it is a difficult language, harder than Greek; in 1894 and up to his death he had a very good memory, I believe. On cross-examination: He suffered a great deal at times, and was never perfectly well the last year of his life; I remember of the marriage of his daughter in November, 1894; I officiated.\\nA certified copy of the certificate of incorporation-of the Catholic University of America was put in evidence.\\nA transcript was put in evidence of the decree rendered September 14, 1885, in the circuit court of Barry county, Missouri, in the case of Eliza A. O'Brien against Maurice O'Brien, divorcing her, and decreeing $1,100 in gross as alimony \\\"which sum is to be in full satisfaction and settlement, release and discharge of all right, present or prospective, which plaintiff has had or may have as the wife of defendant, either at law or in equity, and also in lien and instead of the right of dowry, homestead and distributive shares in defendant's estate;\\\" and the acknowledgment in open court of receipt of such alimony in satisfaction of all such manner of right and claim.\\nPlaintiff put in evidence the paper purporting to be the will of Maurice O'Brien, and the certificate of rejection by the probate court.\\nOn behalf of defendants, the following evidence was offered:\\nThomas Joseph O'Brien said: I lived in Oklahoma at the time of the death of my father, Maurice O'Brien; I was at home at the marriage of my sister, Mrs. Daily, six weeks or two months before his death; I came up from Oklahoma at the request of my father to attend her wedding; I stayed about a month; a few days before and some weeks after the wedding; I suppose I was at home a year altogether during the last three years of Ms life; he always complained about Ms health before he left Chicago; after we came here he seemed to get better for awhile and then seemed to get worse off; he complained mostly of his head, and his heart used to trouble him a good deal, and his stomach and different things; he had several doctors and he used considerable patent medicines and electric belts and one thing and another; he would try everything to try and get relief; he was not a drunkard, but he drank whiskey ; when I came to the wedding and first met him he seemed to be in a great passion; he wandered around and talked to himself a good deal and seemed like he didn't want my sister to get married; he was very sickly at that time and weak; complained of vertigo, getting dizzy, lots of times he would fall down when he was by himself; he was afraid to stay alone after dark; he would go to bed and seemed as though he couldn't sleep; sometimes I heard him talking to himself; lots of times in the daytime he would be walking around and get to' talking to himself; he would go into a passion and in five minutes would be in good humor; when my sister married she went to Monett; my father didn't want her to leave; he wanted her and her husband to live down there at Pierce City at home with him and have Mr. Daily go up and down on the train; my other sister lived in Oklahoma; after my sister married there was an effort made to have my father and mother live together ; in 1892, the last time I went to Chicago, he asked me to look at his property there and see what it was worth; agent said $10,000 was a good price; father told me it was worth $40,000; he sold his farm for $4,000, half down; within the last year of his life he told Alice he had provided well for her, and got his will and read part of it to us; he was displeased with the housekeeper he got after my sister left; she was slovenly; on some things his memory was about the same as ever; he used to tell me his memory wasn't good like it used to be; when we lived on the farm my father directed the work; father and mother separated in '85 or '86; my sisters went with mother; then Prank kept house for him; father looked after his affairs himself; I administered on his estate; he had the $2,000 land notes; kept them in the Lawrence County Bank; he had Tom Moore's Poems, Longfellow, Shakespeare and a number of works in Irish; he never told me about making a will while I was there, the time of Alice's wedding; after Alice's marriage I guess she didn't have any care of his house, nor visit him.\\nAlice Daily said: I am a daughter of Maurice O'Brien; I had lived with my father about two years prior to my marriage; before that I had lived with my mother in Pierce City after their separation; my father sent me to a school in Kansas for one year; after Prank died my other brother stayed with father several months, and he was going away, and father wanted me to stay with him, and I did; he always had a bad stomach and complained of his heart and head; he would suffer and think he was going to die, then it would pass off and he would be all right; he was restless and would walk the floor; he would wake up and talk to himself; he would talk about whatever was in his mind; what he was talking of with the last person, or what \\u2022occurred when he was a boy in the old country, or what happened in Chicago; he was excitable; would go out for a walk and when he came back would say he had vertigo; not many people visited him; Father Plealey did two or three times a week, and' Dr. Worley was his attending physician; complained that he felt tired in church and wanted to get up and walk around; he went out in town nearly every day if he felt well; he would do the shopping for the day; he bought all the things for the house; a few months before I was married he gave me some money; I insisted on his giving me $5 a month wages while I lived with him for my own expenses, dressing, etc.; he gave me $50 after he found I was engaged; a month or two before we were married he wanted to propose to Mr. Daily that we live in his house with him and when I represented to him that wouldn't be practical, Mr. Daily being in business in Monett and it would be necessary for him to live there, he then wanted me to give it up; that Mr. Daily was too old and if I waited a few years I could get other opportunities; and of course I wouldn't do that, and he got angry and made it disagreeable all the time I stayed; I wanted to be married from his house and he refused; he said he disapproved of it altogether and he was going to disinherit me for it; and as I was leaving the house he shook hands with me and asked me to come back and see him; my brother tried to bring about that mother should go back to father, it was all arranged except on the point of remarrying, he wouldn't consent to that, and,she wouldn't go back on any other condition; she went to see him the night before he died; when I had wanted arrangements about wages he told me he had provided for me so well in his will I could afford to wait; that he didn't expect to live long and my brother and me were to have the estate after certain legacies were paid; I refused to stay unless he paid me wages; he gave me the $50 to make preparation for my marriage ; after he knew I was going to leave he would talk angry at me and tell me I was doing wrong in leaving him; it was merely my leaving him, he didn't care for us getting married if I would live with him.\\nOn cross-examination: I think a reasonable person would understand that when I was getting married I would have to make a home of my own, and I don't think it was reasonable for him to get up and stamp around and get angry and tell me I was doing wrong and had no right to leave him; my sister and brother were away; he had no wife and was seventy-three and in poor health; he was naturally a man of more than average intelligence on certain things; what he knew, he knew thoroughly; I was married November 7th, and left him a day or two before that; at that time he knew who his children were, and knew what property he had and his memory was good of people and circumstances. He always kept liquor in the house; he would get a gallon at a time and use it, probably half a dozen times a day; he would get every patent medicine he would see advertised.\\nJ. K. Saunders said: I lived next door to Maurice 0 'Brien; he seemed to have a complication of troubles; head trouble, or catarrh in the head, heart trouble, and his stomach; I really couldn't say as to its having any effect on his mind, any more than that physical debility would have the effect to depress the mind I should think; in the last six months of his life I talked with him every few days and I have seen him when he was cheerful and 1 have seen him when he was not; I was called over there the night he died; and he was suffering greatly; he asked me to rub his side with whiskey and talked in such a way that it was sometime before 1 could under stand what he wanted me to do; I used it vigorously for five minutes and he was considerably better; an old lady was there who had come to keep house for him after Alice married; he said he was offered as much as $50,000 for his Chicago property; but he had not then heard from his son since he reached Chicago; and another time he heard from him, but couldn't find the parties who had wanted the property; he said he and Frank had got alone nice together; I saw him most every day; he would get excited talking over politics.\\nOn cross-examination: I am a barber, my office hours were from six in the morning to twelve at night, except meal hours; the night of his death no member of his family was there; three days before that he was down town and fell at the drugstore; he seemed to be very well posted on politics; he would commence to talk intelligently and then get into a frantic rage; I regarded him as a highly educated man; I noted no lack of memory; the night of his death I insisted on remaining the night through and he insisted that I go home and sleep; there was a comfortable fire in the stove; it was a cool night and he asked me to go down stairs and get two sticks of wood in the kitchen and I got the wood.\\nA. S. Anderson said: I am a physician; I knew Maurice O'Brien since 1892; he consulted me several times; he was suffering with \\\"lithia\\\" or \\\"lithiasis;\\\" it is a disease caused by poisons in the blood; it manifested itself in various ways; it showed itself in the disordered action of the heart; also in the skin; and this headache he complained of and other troubles were all the result of this disease; he had a deficient memory, very much so; he would frequently come into my office and make the remark to me that he thought he would die before he could get here and when I would go up to the house he would say, \\\"I thought I would die before the night was over;\\\" I hadn't seen him for sometime previous to his death; his mental condition was variable. \\\"Q. Was it of a sound nature? A. I should say not. ' '\\nOn cross-examination: I don't know that he manifested any want of memory either as to people or property; some of his doings wasn't rational, to my notion; he would conceive the notion that he was going to die, and that wasn't a reasonable conclusion. \\\"Q. If he felt in a general way that he was badly sick and about to collapse, that wasn't irrational? A. I take it this way, that it was the condition of his mind. ' ' Lithia at times produces eczema and diseases of the brain, and a number of diseases may he caused by it; outside of those mentioned, inflammation of the joints and neuralgia of the head; I can't give you the proportion of people that are unsound mentally. I don't claim to he an insane expert; I don't mean to tell this jury, when I say that Mr. O'Brien was of unsound mind, that he couldn't remember who his children were and couldn't remember what property he had; so far as I know he was capable of managing his property; I suppose he knew what he was doing when he made his will.\\nH. Y. Worley said: I am a physician, and first called on Mr. O'Brien about eighteen years ago; I treated him at intervals clear up to his death; he had a complication of troubles; lithic acid was one of them, and he was ruptured and had stomach trouble and'heart trouble and kidney trouble; they increased as age increased; in the fall of 1890 in a fit of melancholy, he took arsenic with suicidal intent; Dr. Wright was sent for, and we washed out his stomach; during the last eighteen years there was hardly a time when he was not taking medicine; he would continue melancholy at intervals for two or three weeks and then get relief; he would think he was going to die and send for a doctor two or three times a day; I made him a visit on the 17th of November, 1894, and prescribed for him on the 16th; after that I had visited him at intervals clear up to the time of his death; he seemed to suffer a great deal; wasn't able to be still; would walk the floor and get nervous and impatient; at other times he would get easy and was quite cheerful; he never did any labor to my knowledge since I knew him; he wasn't- able on account of his heart trouble; he was taken sick in Armstrong's drugstore and was taken home, and was confined to his bed only a short time until he died; that was after he had that tendency to stagger and fall in the drugstore; he used to complain of vertigo, dizziness and his disease of the stomach, and he would become excited and nervous from those spells and think he was going to die; at times his mind would be in an abnormal condition, at these times when he was suffering from these fits of melancholy and lithic acid poisoning; in such cases the ones nearest to them ought to be their best friends and they usually turn against them; he showed me the plat of his Chicago property and the number of lots.\\nOn cross-examination: \\\"Q. What is the meaning of 'lithiasis?' A. Lithic acid. Q. What does lithic come from? A. I can't tell you. A. Aren't you a Greek scholar ? A. No, sir. Q. Did you ever consult Webster on the definition of that word? A. No, sir.\\\" He kept his dwelling in fair condition; he was reasonably neat and clean; he was as much so as any man of that age would be; I considered him rather above the .average in intelligence; he was a man of good general information; generally speaking he kept posted on current events; I rather enjoyed an argument with him; he was troubled with dyspepsia and was ruptured; I can't say he had heart disease; he had staggering spells from vertigo; I don't know much about his memory; I did not note any lack of memory; I couldn't say I ever saw him in a condition when he was not conscious who his children were; I have seen him in a condition when he was not capable of knowing what he was doing with his property; when he would have a severe attack; I can't remember now at any times when he was in that condition; I did not know anything whatever about his making a will; from what I saw and know of his condition, I would not say that on November 17, 1894, he didn't then have memory of who his children were; X couldn't say that his mental condition was such at that time that he wouldn't know what property he had. \\u00a1\\nGeorge Armstrong said: Maurice O'Brien was frequently in my drugstore; I have filled a great many prescriptions for him; he- frequently purchased patent medicines and stimulants; he put some papers in my safe and told me it was his will; he got it out about the time his daughter was married; he was very much excited, very much agitated; two or three days after he came back with another and asked me to put it in the safe; he was not excited on that occasion; it remained till after his death; at times he was very irritable and nervous, easily agitated and excited; he was in my store the day before he died and was taken violently sick there; he just dropped over, and I assisted him to a chair; they took part of his clothing off and tried to rub him; he had on four or five wool shirts, I believe they were. \\\"Q. You don't mean to say that at that time he was not capable of understanding and remembering who his children were? A. I would suppose he would. Q. You didn't notice any lack of memory on his part? A. Not that I remember. Q. You don't mean to say that at that time he was in such condition that he didn't understand what property he had? A. I don't know. Q. You had no indication that would lead you to that conclusion? A. No, sir. Q. Any indication to make you think he was not capable of knowing what he was doing with his property if he was making a will at that time? A. I couldn't say.\\\"\\nP. C. Johnson, being recalled by defendants, said-: I prepared a will for him not more than a year before this one; I think as to the disposition of his property, I would call him (O'Brien) a monomaniac; I mean by that, a species of insanity on one subject. \\\"Q. He didn't consider what he was doing, when making his will? A. I think he said he did. Q. Do you mean to say he didn't understand what he was doing? A. I think he did. Q. He understood who his children were? A. I suppose so. Q. Mentioned them by name? A. Yes, sir. Q. And understood what disposition he was making of his property? A. \\u2022 He mentioned in so many words what he wanted, and I would judge that he knew what he was doing. Q. And he explained it to you so that you understood how to make a draft that carried out his intentions? A. I suppose so, else he wouldn't have made it. \\\"\\nWith this evidence the defendants closed their case and plaintiff asked the court to give the jury the following instruction:\\n\\\"The court instructs you that under the pleading and the evidence your verdict must be for the plaintiff and your verdict may be in the following form: We, the jury, do find the paper writing produced in evidence to us to be the will of Maurice O'Brien.\\\"\\nThe court refused to give this instruction and the plaintiff excepted to the ruling of the court in so refusing.\\nIn rebuttal, plaintiff offered the following evidence :\\nE. L. Jer\\u00f3me said: Mr. 0 'Brien bought the Irish World from me regularly and quite often bought a Globe. He was a man of good intelligence and an interesting talker; he could talk on most any subject; he \\u2022often mentioned the news of the day.\\nR. T. Saulsbury, said: I remember of M. 0 'Brien being poisoned in 1890 or 1891; he said he had some arsenic and had put it on a shelf in the kitchen, and that he had taken arsenic by mistake; that he had aimed to t\\u00e1ke quinine; Dr. Wright came along in a hurry, and I ran across the field and got there about the time he did, before anything was done; he was all the doctor that was there; I stayed there till after Dr. Wright had used the stomach pump and relieved him; Dr. Worley was not there at that time; Dr. Wright used the stomach pump and Dr. Worley wasn't there; so far as I know Mr. 0 'Brien was capable of judgment; he was a man of considerable intelligence; as much so as any one around there.\\nA. McKinney said: I knew Mr. O'Brien ever since he came to Pierce City up to his death; he was above the average as to intelligence; he was well read and posted; I remember seeing him about November, 1894, and talking to him about his will; he asked me to read a paper; it was in his handwriting and he asked me to read it, and tell him what I thought of it; it wasn't signed; and I told him I thought it was a very well-written document. (Witness was shown the will and said:) I wouldn't be positive but it was similar to that; at thaf time I noticed no difference in his memory of matters and things and events from any other well-informed person. ' ' Q. In your judgment, at the time he showed you this paper and asked you to read it, was he capable of understanding what he was doing in the way of disposing of his property? A. I certainly thought so.\\\"\\nJ. P. Wicks said: I am a grocer; knew Mr. O'Brien fifteen or sixteen years; he traded with me; he was a pretty smart man; a well-read man; what he said was generally to the point; he was a man who did most of the talking himself; he hardly ever let you say much; he was a man that I liked to hear talk; he got most of his goods himself; he attended to his business himself up to his death; I can't say that I saw any indication of failure of his memory.\\nThereupon the plaintiff asked the court again to give the following instruction, viz.:\\n' ' The court instructs you that under the pleadings and the evidence, your verdict must be for the plaintiff, and yonr verdict may be in tbe following form: We, the jury, do find tbe paper writing produced in evidence to us to be the will of Maurice O'Brien.\\\"\\nWhich instruction the court refused to give, and' to- this ruling of the court the plaintiff at the time excepted.\\nAt the instance of the plaintiff the court gave the jury the five following instructions, viz.:\\n\\\"1. You will determine the question whether or not the will produced is the last will of the deceased Maurice 0 'Brien. If you find from the evidence in the c\\u00e1use that the said Maurice 0 'Brien, at the time of the execution of the will, had sufficient understanding and intelligence to transact his ordinary business affairs, and understood what disposition he was making of his property, and to whom he was giving it, then you will find in favor of the validity of the will, and in such case your verdict may be in the following form: We, the jury, find the will produced to be the will of Maurice 0 'Brien.\\n\\\"2. You are instructed that if you believe from the evidence that the instrument of writing proposed as the will of Maurice 0 'Brien, was by him signed in the presence of the witnesses, F. C. Johnson and Otis O. Maxey, and that they, at his request and in his presence, subscribed their names as witnesses thereto, and that at the time of signing said instrument he was of sound mind, then you will find it to be the will of Maurice 0 'Brien.\\n\\\"3. The court instructs you that a man has the right to dispose of his property by will, if he chooses, even to the entire exclusion of those, who, but for his will, would be the heirs of his estate, and you are not to consider whether or not the disposition made by the testator, Maurice O'Brien, is appropriate, or, in the opinion of the jury, just, but simply whether the paper propounded as his will be or be not his last will and testament.\\n\\\"4. If at the time he signed the paper offered in evidence and proposed as his will, if you find from the evidence that he did sign it, Maurice 0 'Brien had sufficient understanding and intelligence to transact his ordinary business affairs and understood what disposition he was making of his property, and to whom he was giving it, then he possessed a sound and disposing mind; and he had the right to make an unreasonable, unjust and injudicious will, and you have no right, sitting as a jury, to alter the disposition of his property simply because you may think that he did not do justice to his family connections.\\n\\\"5. The court instructs the jury that in making up your verdict in this ease you should not take into consideration or be influenced by the fact that the will was rejected by the probate court or by the judge thereof. ' '\\nAt the request of defendants, the court gave the jury the three following instructions, to the ruling of the court in giving each and every which three instructions, the plaintiff objected and at the time excepted, viz.:\\n\\\"1. The court instructs the jury that the burden rests on the proponents to prove that Maurice O'Brien, at the time of making the will, possessed a disposing mind, that is, that he had sufficient understanding to transact his ordinary business affairs and understood what disposition he was making of his property and to whom he was giving it. Therefore, if the jury finds the will produced to be not the will of Maurice 0 'Brien, the verdict may be in the following form: We, the jury, find the will produced to be not the will of the testator.\\n\\\"2. In determining the issues submitted in this case, you may take into consideration the age of the testator, his physical condition, the manner and circumstances under which he executed the instrument propounded as his will, the provisions of the instrument, as well as his mental condition as detailed by the witnesses, together with all other circumstances in evidence.\\n' ' 3. The court instructs the jury that a disposing mind and memory is a mind and memory which has a capacity for regarding and discriminating and feeling the relations, connections and obligations of family and blood, and that a person may have on some subjects, and even generally, mind and memory and sense to know and comprehend ordinary transactions, and yet upon the subject of those who would naturally be the objects of his care and bounty, and of a reasonable and proper distribution as to them of his estate, he may be of unsound mind. And if the jury find from the evidence that in making the will in controversy the mind of Maurice 0 'Brien was controlled and directed by hatred and morbid and insane delusions as to the natural objects of his bounty to such an extent- as that he did not comprehend the disposition he was making of his property, then said Maurice was not of sound and disposing mind and memory at the time he made said will. \\\" .\\nThe question in this case which overshadows all others, and which we think furnishes a solution of it, is as to whether or not Maurice 0 'Brien was possessed of sufficient mental capacity to make the will at the time he executed it.\\nThe test of capacity to make a will is that the testator must be capable of comprehending all of his property and all persons who reasonably come within the range of his bounty and sufficient intelligence to understand his ordinary business and to know what disposition he is making of his property, and if so he has sufficient capacity to make a will. [Benoist v. Murrin, 58 Mo. 322; Jackson v. Hardin, 83 Mo. 175; Cash v. Lust, 142 Mo. 630; Sehr v. Lindemann, 153 Mo. 276; Riggin v. Westminster College, 160 Mo. 570.] \\\"With a capacity reaching this standard and under a free exercise of it, the court will not interfere with his right to dispose of his property according to his own will, however unjust the disposition may appear.\\\" [Cash v. Lust, supra; Thompson v. Ish, 99 Mo. 160; Maddox v. Maddox, 114 Mo. 35; McFadin v. Catron, 120 Mo. 252, and 138 Mo. 197.]\\nThe questions for solution are, did Maurice 0 'Brien have the requisite capacity to make the will in question, and, was there any substantial evidence to the contrary ?\\nThe evidence conclusively shows that he was a man of much more than ordinary intelligence, was quite well educated, and well informed. He went to his attorney to prepare the contents of the will for him, who outlined it for him only a short time before it was signed. It was signed in the same attorney's office on the 17th day of November, 1894. The entire will is in the handwriting of the testator, he having written it from the memorandum made by his attorney in accordance with his wishes and data furnished to him by the testator. He wrote his name to the will in the presence of his attorney, and the presence of Otis C. Maxey, both of whom signed the will as attesting witnesses at his request. He said the paper was his will. He was at the same attorney's office a few days before signing this paper; had made papers of the same kind before about which he had consulted the same attorney about the manner of getting them up, but always wanted to write them himself, so they would appear in his own handwriting.\\nHe told his attorney that he wanted him to prepare another will for him, that he had changed his mind about the disposition of his property, and wanted him to go over it with him and outline another will, which he did in writing in pencil. He mentioned the names of his children, all the parties, devisees and legatees named in the will. He said he wanted his property to go to the parties whose names appear in the will. He knew the names of his children and the other people. Pie cut his daughter Mrs. Daily off. He selected Allen, who is a discreet business man as executor, without suggestion from anybody to do so. He was feeble from advanced age, but seemingly not more so than is usual in such cases.\\nIf the facts thus grouped do not show beyond any and all question that the testator possessed the necessary capacity to make the will in question, we must confess our inability to conceive wherein he was wanting. That he may have been unjust to his daughter, Mrs. Daily, in disinheriting her may be true, but with that we have nothing to do. If he was competent to make the will, as we have held he was, he had the right to dispose of his property as he thought proper, in the absence of fraud or undue influence.\\nIt is true that there was evidence that the testator had been in bad health for many years, frequently under the care of a physician, that he would have spells of nervousness and despondency which would last him for two or three weeks at a time, and that during one of these spells in the fall of 1890, four years before he executed his last will, he took -arsenic with suicidal intent, but he afterwards stated that he took it by accident, thinking it was quinine.\\nIt is also true that another witness, Dr. Anderson, testified that his mental condition was not of a sound nature, but that he had not seen him for some time before his death. F. C. Johnson, being recalled, stated that the testator was a monomaniac, and didn't consider what he was doing when making a will; at the same time he testified that he thought he knew what he was doing when making his will, knew his children, what disposition he was making of his property, and mentioned in so many words what he wanted to do with his property, so that he understood how to make the draft of the will that carried out his intentions. These circumstances had no tendency whatever to show that the testator did not have capacity to make the will. In fact, they amounted to nothing; besides, there is not a single circumstance disclosed by this entire record, which shows, or tends to show, in the remotest degree, that the testator was not in full possession of all his mental faculties at the time he executed his will. When his attorney formulated the will he readily gave him the names of all the parties therein named and told him all about his property, and- where located. He was a man of much more than ordinary intelligence, a good scholar, read the papers, was a good conversationalist and attended to his own business up to the time of his last sickness, and was of perfectly sane mind at the time of the execution of the will, and there was no evidence of a feather's weight to the contrary, and, if a will executed under such circumstances will not withstand the assaults of persons disappointed by its provisions, then the statute which authorizes every male person, twenty-one years of age and upwards, of sound mind, to devise his property by last will, amounts to nothing, and should no longer be permitted to remain on our statute as the law of this State.\\nThe evidence of the attesting witnesses and others to the will is sufficient to authorize its probate. The judgment is, therefore, reversed, and the cause remanded with directions to the trial court to enter a proper judgment confirming the will.\\nAll concur.\"}"

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+"{\"id\": \"1460211\", \"name\": \"ASSIGNMENT OF THE ELAINE BUILDING AND LOAN ASSOCIATION, WM. HAGERSDORF, Respondent, v. NORFLEET HILL et al., Appellants\", \"name_abbreviation\": \"Assignment of the Elaine Building & Loan Ass'n v. Hill\", \"decision_date\": \"1900-01-02\", \"docket_number\": \"\", \"first_page\": \"317\", \"last_page\": \"321\", \"citations\": \"82 Mo. App. 317\", \"volume\": \"82\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"St. Louis Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T21:07:54.003265+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"ASSIGNMENT OF THE ELAINE BUILDING AND LOAN ASSOCIATION, WM. HAGERSDORF, Respondent, v. NORFLEET HILL et al., Appellants.\", \"head_matter\": \"ASSIGNMENT OF THE ELAINE BUILDING AND LOAN ASSOCIATION, WM. HAGERSDORF, Respondent, v. NORFLEET HILL et al., Appellants.\\nSt. Louis Court of Appeals,\\nJanuary 2, 1900.\\n1. Assignee, Compensation of: RULE OF.CIRCUIT COURT, DISCRETION OF JUDGE. The statutes of this state .do not fix the amount to be allowed an assignee for the discharge of his' duties as such under the superintendence of the circuit court, but leave that question to the judicial discretion of the judge.\\n2. -: -: -: REASONABLE VALUE OF SERVICE OF ASSIGNEE AND ATTORNEY. The rule adopted by the circuit court of the city of St. Louis, \\u201cthat under no circumstances shall the amount to be allowed an assignee by the court for his compensation and that of his ordinary counsel fees together exceed fifteen per centum of the estate received and disbursed by said assignee, provided, however, this rule is not to apply to attorneys\\u2019 fees in litigated cases prosecuted or defended by the assignee in behalf of the estate,\\u201d was intended to express the judgment of that court as to the reasonable value of the allowances to be made for all matters falling within the classification set forth in the rule.\\nAppeal from the St. Louis City Circuit Court. \\u2014 Hon. William Zachritz, Judge.\\nAefirmed.\\nW. 0. & J. 0. Jones for appellant.\\n(1) The allowance of the lower court is unreasonable. The evidence, on which the court in this, as in other cases, must act, all shows that the services rendered by the attorneys were worth far more than the amount allowed. LeBrun v. Boulanger, 56 Mo. App. 41; Mullinix v. Catron, 2 Mo. App. 341; State v. Grabell, 69 Mo. App. 536. (2) The rule of court restricting the amount allowable to assignees and their attorneys is void because unreasonable, because it is in contravention of the statutes of this state and undertake, in advance of any investigation, to limit the amount of compensation to assignees and the amount which they may pay for necessary legal services. Purcell v. Railroad, 50 Mo. 504; Calhoun v. Crawford, 50 Mo. 458; State ex rel. v. Gideon, 119 Mo. 98; State v. Withrow, 135 Mo-. 382; State ex rel. v. Withrow, 133 Mo. 522; State v. Bryant, 55 Mo. 75; State v. Underwood, 75 Mo. 230. (3) The rule of court is inapplicable to the case presented, or the court improperly construed the rule. (4) Though the rule be valid, the enforcement of it lies in the discretion of the trial court, and it was an abuse of that discretion to- enforce it (as construed by the court) in this case. Kuh v. Garvin, 125 Mo. 547.\\nNo brief furnished for respondent.\", \"word_count\": \"1552\", \"char_count\": \"8888\", \"text\": \"BOND, J.\\nOn the Twentieth of November, 1894, the Elaine Building and Loan Association, a corporation, made an assignment for the benefit of its creditors. The assignee retained J. O. and W. C. Jones as his attorneys. In 1898 he filed a term report showing a balance in his hands of $1,196.83, and-prayed an allowance for his own services and those of his attorneys, the itemized account for the latter aggregating $895, upon which a credit was entered of $100, leaving the balance claimed $795. J. C. Jones testified as to the services rendered.. Upon the basis of his evidence in this respect other witnesses testified the amount charged was reasonable. The matter was submitted to the trial judge, who made the f ollowing order of allowance:\\n\\\"The court having heard and duly considered the application of the assignee and his attorneys for allowances to them for their services herein, and the evidence 'adduced in support thereof, and it appearing to 'the court that by section 3 of rule 36 of this court, the court is restricted in the compensation it may allow to assignees and their attorneys to fifteen per cent of the amount actually received and disbursed by the assignee (except that the court may make a further allowance for attention to litigated cases), which rule is as follows: Bee. 3. The rate of compensation that will be allowed by the court to an assignee shall ordinarily be not more than that fixed by statute for administrators of estates to the decedents, and the amount that may be allowed him for ordinary counsel fees shall not exceed one-half of the amount of his own compensation. In an ordinary case, and on satisfactory proof, the assignee may be allowed a higher rate of compensation than that above named, but under no circumstances shall the amount to be allowed him by the court for his compensation and that of his ordinary counsel fees together exceed fifteen per cent of the estate received and disbursed by him, provided, however, this rule is not to 'apply to attorney's fees in litigated cases prosecuted or defended by the assignee in behalf of the estate.'\\n\\\"And it further appearing that the total amount received and disbursed by said assignee was only $4,5Q0, fifteen per cent of which sum is $675, the court doth order the assignee' to pay to his said attorneys the further sum of $600 in full for their services rendered, and to be rendered herein ($375 of which sum is allowed for general services to the estate, and .$225 thereof for attention to litigated cases), and that the assignee retain the sum of $300 in full for his services as assignee. The court is of the opinion, and the evidence discloses, that the services of the attorneys are worth all that they claim, to wit, the sum of $895, and that the services of the assignee are worth more than has been allowed to him, but in view of section 3 of rule 36 of this court, restricting compensation that may be allowed to assignees and their attorneys, by which rule this court is bound, the court declines to make any further allowance than as above stated.\\\"\\nFrom this judgment the assignee appealed to this court.\\nIt is insisted by appellant that the trial court erred in applying to the allowances requested by him the rate of fees for such services contained in the rule of the St. Louis circuit court, set forth in the foregoing judgment. The rule in question was adopted by the St. Louis circuit court in general term to afford a just and equal basis of allowances in its several divisions for the services and expenses incurred by assignees in the administration, under the orders and direction of the court, of assigned estates. The object of the rule is salutary and wholesome, for it is only just that the same sums should be paid in one division of the court which are paid in all others for the same services. The schedule fixed was adopted, after consultation and agreement, among the judges of the respective divisions of the court. Its fairness may be reasonably assumed in view of the experience of the judges of the St. Louis circuit court imsupervising the administration of assigned estates, and their competency to' estimate the value of the services rendered by the assignee and what should be allowed him for legal 'assistance in the instances mentioned in the rule. Courts are empowered to malee all needful rules for the just and proper conduct of the business entrusted to them, which do not prejudice vested rights. The statutes of this state do not fix the amount to be allowed an assignee for the discharge of his duties as such under the superintendence of the circuit court but leave that question to the judicial discretion of the judge. We do not think this was abused by the adoption of the rule in question. Of course, the rule does not affect the rights of the attorneys of the assignee, for they have no direct claim as such against the assigned estate, and are entitled, as against the assignee, to the reasonable value of the services rendered at his instance, irrespective of what the court might allow him to cover such expenses. Prior to the adoption of the rule in question the assignee was entitled to be reimbursed, on account of counsel fees necessary to the discharge of his trust, to an allowance equal to their reasonable value. But he sustained no direct relationship with the court, nor did any statute fix the sum which he was entitled to receive on this account. His right to such allowance depended solely upon proof that the counsel fees were legitimately incurred, and of their reasonable value, upon which evidence the amount to be allowed was lodged in the sound discretion of the court wherein the trust was administered. The rule adopted by the St. Louis circuit court was intended to express the judgment of the court as to the reasonable value of the allowances to be made for all the matters falling within the classification set forth in the rule. If the assignee was not satisfied with the sums therein specified, he could have declined to act as such, but having performed his duties under the directions of the court, and in the light of the rule governing a portion of the allowances which he would be entitled to receive, he is in no position now to complain of his failure to receive a greater sum. The result is that the judgment herein is affirmed.\\nAll concur.\"}"

mo/1462240.json

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+"{\"id\": \"1462240\", \"name\": \"C. E. DONNELL NEWSPAPER COMPANY, Appellant, v. ADOLPH C. JUNG et al., Respondents\", \"name_abbreviation\": \"C. E. Donnell Newspaper Co. v. Jung\", \"decision_date\": \"1899-11-28\", \"docket_number\": \"\", \"first_page\": \"577\", \"last_page\": \"582\", \"citations\": \"81 Mo. App. 577\", \"volume\": \"81\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"St. Louis Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T19:13:01.439924+00:00\", \"provenance\": \"CAP\", \"judges\": \"Judge Biggs concurs in result. All concur.\", \"parties\": \"C. E. DONNELL NEWSPAPER COMPANY, Appellant, v. ADOLPH C. JUNG et al., Respondents.\", \"head_matter\": \"C. E. DONNELL NEWSPAPER COMPANY, Appellant, v. ADOLPH C. JUNG et al., Respondents.\\nSt. Louis Court of Appeals,\\nNovember 28, 1899.\\n1. Suit on Contract: party dead: agent and principal disqualified, when. Suit on a contract made by an agent with a member of a copartnership, the partner with whom contract was made being dead at the time of trial: Held,that the trial court did not commit error by ruling that the agent and his principal were incompetent.\\n2. -: \\u2014\\u25a0-: agent competent, when. Agent competent as to matters that transpired after the relation of agency had ceased.\\n3. -: EVIDENCE: PATENT AMBIGUITY: NOT EXPLAINABLE BY PAROL evidence. The contract offered by plaintiff in evidence purported to be complete, and the ambiguity affecting it, was patent, that is, manifest on its face, showing plainly that something should be added: Held, that the trial court in excluding the contract offered by plaintiff ruled properly.\\n4. -; -: INCOMPETENT WITNESS: EVIDENCE OBJECTIONABLE any time. The court may exclude the testimony of a witness who is incompetent, at any time during the trial.\\nAppeal from St. Louis City Circuit Court. \\u2014 Son. John M. Wood, Judge.\\nAffirmed.\\nMcCorkle & Haberman for appellant.\\n(1) A contracting agent who Las no interest in tbe contract, does not fall witbin tbe rule rendering parties incompetent, where tbe other party to tbe contract is dead or insane. Bates y. Forcht, 89 Mo. 121; Stanton v. Ryan, 41 Mo^ 515; Baer v. Pfaff, 44 Mo. App. 35, 38; Samuel v. Bartee, 53 Mo. App. 587; Leahy v. Simpson\\u2019s Adm\\u2019r, 60 Mo. App. 83 Meier v. Thieman, 90 Mo. 433, 441. (2) The testimony of \\u25a0witness Jones, brought out by defendants themselves as well as the testimony of both Jones and Donnell given without objection, should not have been excluded. If their testimony was incompetent, an objection comes too late after defendants drew out the objectionable testimony; also where the testimony was given without objections being made by defendants at the time. Hickman v. Greene, 123 Mo. 165; State v. Hope, 100 Mo. 347; Wendover v. Baker, 121 Mo. 273. (3) The necessities of the interpretation may compel the rejection of a word or phrase, so as to give effect to others. Charles v. Patch, 87 Mo. 450; Jackson v. Hodges, 2 Tenn. Chan. 276; Getchell v. Whittemore, 72 Maine 393; Harris v. Hull, 70 Ga. 831. (4) Where there are repugnant words and clauses in a contract, that fact 'alone will not require its rejection, but the court should seek for the intention of the parties, and if that can be gleaned from the surrounding facts and circumstances, or some other part of the instrument, the court should reject that part which does not conform to the intent, and retain that which is in harmony with it. Erskine v. Moulton, 66 Me. 276; Woods v. Hart, 70 N. W. 53; Strauss-v. Wannamaker, 175 Pa. St. 213; Rutherford v. Tracy, 48 Mo. 325; Driscoll v. Green, 59 N. H. 101; Case v. Dwire, 60 Iowa, 442.\\nFoster & Rodgers for respondent.\\n(1) Where one of the firm who had the transaction dies, opposite party not competent witness. Butts v. Phelps, 79 Mo. 302; Williams v. Perkins, 83 Mo. 379; Wiley v. Morse, 30 Mo. App. 266; Chapman v. Dougherty, 87 Mo. 617. (2) Where one member of a firm who had the trans action dies, the agent of the opposing parity not a competent witness. Orr v. Rode, 101 Mo. 396; Banking House v. Rood, 132 Mo. 261, 262; Brim v. Fleming, 135 Mo. 605, 606; Miller v. Wilson, 126 Mo. 54, 55; Green v. Ditsch, 143 Mo. 1; R. S. 1889, sec. 8918. (3) Where one of the parties to a contract is dead, the other is no more competent as a witness to prove acts of part performance under the contract than to prove the contract itself. Sitton v. Shipp, 65 Mo. 297; Amonett v. Montague, 63 Mo. 205. (4) Extrinsic evidence is not admissible to remove a patent ambiguity, and the instrument is inoperative and void. Campbell v. Johnson, 44 Mo. 247; Johnson v. Johnson, 32 Ala. 637; Phanton v. Tefft, 22 111. 367. (5) The court may sustain a motion to expunge testimony of a witness if it appears at any time during the examination, that he is incompentent. Le Barron v. Redman, 30 Me. 537; Seeley v. Engell, 13 N. Y. 545; Heely v. Barnes, 4 Den. (N. Y.) 73; Butler v. Tufts, 13 Me. 302.\", \"word_count\": \"1527\", \"char_count\": \"8645\", \"text\": \"BLAND, J.\\nSuit was'begun in a justice's court on the following statement:\\n\\\"St. Louis, Mo., Feb. 20th, 1897.\\n\\\"August H. Jung and Adolph C. Jung, copartners as A. H.\\n\\\"Jung & Bro.\\n\\\"to\\n\\\"C. E. Donnell, doing business as C. E. Donnell Newspaper\\n\\\"Co., Dr.\\n\\\"To loss of profits and damages arising out of breach of a contract made by said A. H. Jung & Bro., with C. E. Donnell Newspaper Co., under which said Donnell was bound to furnish paper complete, and press work, for 'The Carondelet Progress,' from March 6, 1896, for a period of six months, and which they agreed to receive and pay for; which contract was broken by said A. H. Jung and Bro., without cause. $74.46.\\\" the suit was revived against his administratrix. To sustain the issues on his part plaintiff offered the following paper:\\nDuring the pendency of the suit A. H. Jung died, and\\n\\\"2-24, 1896.\\n\\\"To O. E. Donnell Newspaper Co.,\\n\\\"Auxiliary Publishers,\\n\\\"510-512 Elan St.,\\n\\\"St. Louis, Mo.\\n\\\"I will mail you regularly two copies of my paper completely printed, for your files. Extra sheets being sent me for that purpose.\\n\\\"Print and ship for a period of 6 months \\u2014 for which I agree to pay monthly.\\n\\\"Signed A. H. Jung & Bro.,\\n\\\"Per A. H. J.\\\"\\nPlaintiff offered himself as a witness. By his testimony it was developed that the agreement sued on was made by plaintiff and his agent Gr. A. Jones with A. H. Jung, alone; that A. C. Jung, the other partner, was not present, and did not participate in the making of the agreement. On this showing the court, on the objection of defendant, ruled that neither plaintiff nor his agent Jones were competent witnesses to prove the contract, for the reason that the other party to the contract was dead, but did permit both plaintiff and Jones to testify that deceased party did sign the paper. The court ruled that the paper offered in evidence as a contract was void for uncertainty, whereupon plaintiff took a nonsuit with leave to move to set it aside. His motion to set aside the nonsuit was overruled, and he appealed to this court.\\n(1) Appellant contends that Jones is a competent witness because he had no interest in the suit. Jones' testimony shows that he was the agent of the respondent to solicit business; that he solicited an order from Jung & Company and prepared a part of the paper offered 'as a contract and was present when it was signed by A. H. Jung. In this transaction he repesented the plaintiff, stood in his shoes, and as to this transaction, it has been repeatedly held by our supreme court he was an incompetent witness. Green v. Ditsch, 143 Mo. 1; Brim v. Fleming, 135 Mo. loc. cit. 605; Banking House v. Rood, 132 Mo. 256. But as to what transpired afterwards, when he was not acting in the capacity of appellant's agent, he was a competent witness, and was permitted by the court to testify, and because he was so permitted to testify without objection by respondent, was not a waiver by respondent of his competency to testify as to the making of the contract as contended for by appellant. It is not contended by appellant that respondent was a competent witness.\\n(2) Appellant, contends that surrounding facts and circumstances should be taken into consideration to explain away the patent ambiguity of-the paper offered as the contract between the parties. Lord Bacon said: ' \\\"Ambiguitas patens can not be holpen by averment, and the reason is, because the law will not couple and mingle matter of specialty, which is of higher account, with matter of averment, which is of lower account in law, for that were to make all deeds hollow and subject to averment, and so in effect to make that pass without deed which the law appoints shall not pass but by-deed.\\\" Broom's Legal -Maxims, side page 584. This rule has been extended to written contracts in general, and is as universally and as well settled as it is possible to settle a rule of pleading and evidence. The written instrument must stand or fall by what appears upon its face. It can not be \\\"holpen\\\" by extraneous evidence. The learned circuit judge held that it was too indefinite and vague for intelligent interpretation, that for uncertainty it was void. We are of the same opinion. It may be well to note further, that appellant did not offer a syllable of testimony tending to prove that he had sustained any damages whatever.\\nBinding no reversible error in the record the judgment is affirmed.\\nJudge Biggs concurs in result. All concur.\"}"

mo/1514672.json

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+"{\"id\": \"1514672\", \"name\": \"H. C. BUTTS, Appellant, v. GEORGE FOX, Respondent\", \"name_abbreviation\": \"Butts v. Fox\", \"decision_date\": \"1902-11-03\", \"docket_number\": \"\", \"first_page\": \"437\", \"last_page\": \"442\", \"citations\": \"96 Mo. App. 437\", \"volume\": \"96\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Kansas City Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:54:29.064010+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"H. C. BUTTS, Appellant, v. GEORGE FOX, Respondent.\", \"head_matter\": \"H. C. BUTTS, Appellant, v. GEORGE FOX, Respondent.\\nKansas City Court of Appeals,\\nNovember 3, 1902.\\n1. Landlord and Tenant: LEASE: FRAUDS AND PERJURIES: NOTICE. Where, in a verbal lease, time is not mentioned, notice to quit is necessary and the statute of frauds does not invalidate a lease for one year, but the time is computed from the time of making the contract of lease to the end of the term, and if this time is for more than one year the statute invalidates the lease.\\n2. -: -: -: -. In any case of entry and payment of rent under a lease made invalid by the statute of frauds, the agreement for its termination will bind the parties if the property is held up to the period designated in the lease and no notice to quit will be necessary; though if such lease be for a number of years it may be terminated at the end of any yearly period on proper notice.\\nAppealed from Livingston Circuit Court. \\u2014 No\\u00bb. J. W. Alexander, Judge.\\nReversed and remanded (with directions).\\nJos. Barton and Sheets & Sons, for appellants.\\n(1) No demand-in writing for the delivery of possession was necessary. R. S. 1899, sec. 3321; Bierkenkamp v. Berkenkamp, 88 Mo. App. 448; Young v. Smith, 28 Mo. 68. (2) No notice to quit was necessary. R. S. 1899, sec. 4111; Ish v. Chilton, 26 Mo. 259; Young v. Smith, 28 Mo. 69; Stephens v. Brown, 56 Mo. 25; Ilulett v. Nugent, 71 Mo. 132; Russell v. McCartney, 21 Mo. App. 547; Johnson v. Hartshorn, 52 N. Y. 173-176. (3) The statute of frauds does not apply. This was not a letting for a term, of years. R. S. 1899, sec. 3414; Kerr v. Clark, 19 Mo. 132; Ridgley v. Stillwell, Mo. 400. The above section and all the decisions under it have refert3fice only to parol leases for years or some indefinite term; and even then the leases are not void. Williams v. Deriar, 31 Mo. 18; Cunningham v. Roush, 157 Mo. 341. (4) A parol lease for one year is valid. R. S. 1899, sec. 3418; Hoover v. Oil Co., 41 Mo. App. 317. -\\nMiller Bros, and Commodore Smith for respondent.\\n(1) The court made no finding showing his reasons for granting new trial. The motion goes to the insufficiency of the plaintiff\\u2019s evidence. This power was discretionary in the trial court, and for this reason, the motion was granted. This power rests particularly with the trial judge. Taylor v. Railroad, 63 S. W. 375; Baughman v. Fulton. 139 Mo. 577; Bank v. Wood, 124 Mo. 72. (2) It is not within the proper province of the appellate court to reverse ruling of trial court, unless there has been an abuse of discretion on part of trial judge. Laclede P. Co. v. Nash, 69 S. W. 28; Bag Co. v. Commission Co., 74 Mo. App. 627; Roe v. Bank, 67 S. W. 306. (3) The contract made between W. B. Wilson and James T. Hale, parties of the first part, and George Fox of the second part, in 1900, was invalid for the reason that a verbal contract which can not be performed in one year from the date upon which it is made is squarely within the prohibition of the statute of frauds. Briar v. Robertson, 19 Mo. App. 66; Sharp v. Rhiel, 55 Mo. 97; Sect. 2513, Revised' Statutes, Mo. 1879; Browne on Statute of Frauds, sec. 272. (4) The contract under which the parties were supposed to be acting being invalid, then what are the relations and rights of the parties? Beiler v. Devoll, 40 Mo. App. 254; Delano v. Montague 4 Cush. 44; Kerr v. Clark, 19 Mo. 133; 29 Car. 2, chap. 3; Hoover v. Oil Co., 41 Mo. App. 327; Koplitz v. Gustavus, 48 Wis. 48; Tiefenbrun v. Tiefenbrun, 65 Mo. App. 254. (5) Written notice is required to terminate a tenancy from year to year. E. S. 1899, sec. 4109; Beiler v. DevolL, 40 Mo. App. 255.\", \"word_count\": \"1913\", \"char_count\": \"10267\", \"text\": \"ELLISON, J.\\nThis is an action of unlawful detainer. Tbe verdict in tbe trial court was, on perempttory instruction, for plaintiff. On motion of defendant this was set aside and a new trial granted. Plaintiff appealed from the order granting a new trial.\\nThe facts necessary to state are these: Defendant rented a farm of Hale and Wilson by verbal lease for one year, beginning March 1, 1900, and ending March 1, 1901. In November, 1900 defendant, by verbal lease, again rented the place of them for the following year, beginning March 1, 1901, and ending March 1, 1902. After defendant had entered upon his second year, viz., in May, 1901, Hale and Wilson sold the farm to the plaintiff and defendant attorned to him\\\" and paid him a part of the annual rent due under the last lease aforesaid. A few days after the end of the-time of the second letting, to-wit, on March 6, 1902,. plaintiff begun this action.\\nPlaintiff did not give defendant sixty days' notice to quit, and the sole question presented by the case is, was a notice to quit necessary? We have not been cited to a case in this State on that question. The view of the trial court as evidenced by an instruction for plaintiff, was that it was not. But that court came to a different conclusion as is evidenced by granting the new trial.\\nThat our answer to that question may be fully understood, it will be necessary to consider the nature of the tenancy as it may be affected by the statute of frauds first stating that in a lease for time certain, no notice is necessary. If time is not mentioned, notice is necessary. Young v. Smith, 28 Mo. 85. A verbal lease for not more than a year is not invalidated by the statute of frauds. Hoover v. Pacific Oil Co., 41 Mo. App. 317. And, therefore, this lease being for a period of just one year would not be invalidated by that statute, but for the consideration that it was made in November, which was several months prior to the commencement of the term; the rule being that the time is computed from the making of the contract and not from the commencement of the performance. Briar v. Robertson, 19 Mo. App. 66; Beiler v. Duvoll, 40 Mo. App. 251. This lease was therefore invalid under the statute.\\nIt is only invalid because the period of its duration is beyond the time allowed by the statute to verbal leases. In all other respects the provisions of'the lease are valid and it only needs a period of duration to become effective. That element is furnished by entry and payment of annual rent as agreed. The law then gives a duration or period of from year to year, that is to say, the lessee becomes a tenant from year to year. Judge Napton stated in Williams v. Deriar, 31 Mo. 13, that it was \\\"well settled that in cases of verbal leases for more than a year, which the statute declares leases at will, and which entry and payment of rent convert into tenancies from year to year, that the stipulations of the contract, as to repairs, as to the amount of rent, as to the time when the tenant must quit, are still enforced.\\\" What does the expression L'as to the time when the tenant shall quit mean? It means that the time set in the invalid verbal lease for the ending of the term governs, unless, before.the ending of the term it is terminated by proper notice at the ending of some yearly period. And since the tenancy is one from year to year and must terminate at the end of some yearly period, it follows, that such year to year, tenancies are always good for at least-one year. It will be seen from this that if the term, as fixed by the invalid lease, is one year, it terminates at that time without notice.' If the term is for several years, then either party may terminate it by proper notice at the end of any yearly period; but if it is held until the end of the time fixed in the lease it terminates without notice. 2 Taylor's Landlord and Ten., sec. 471; Wood's Landlord and Ten., sec. 23; Tress v. Savage, 4 El. & Bl. 43; Berry v. Lindley, 3 M. & G. 498; Davenish v. Moffatt, 15 A. & E. 257; Adams v. City of Cohoes, 127 N. Y. 175; Coudert v. Cohn, 118 N. Y. 309.\\nIn the Tress case the invalid lease was for three years and it was held that the lessee did not have a tenancy for three years, \\\"but a tenancy from year to year, which during that time, is determinable by a half year's-notice. If he stays to the end of the time, then, by agreement of both parties, he goes out without notice.\\\" In the Berry case, the invalid lease was for five and one-half years and Tindal, C. J., said that \\\"either party was at liberty to put an end to the tenancy without notice in the event of the whole- of the period of five years and a half being suffered to run out.\\\" Coliman, J., said in the same case that, \\\"a party who enters under an agreement void by the statute of frauds, becomes by that statute tenant at will to the owner, and the tenancy described in the statute as a tenancy at will has since been construed to enure as a tenancy from year to year. But such tenant may quit without notice, and be ejected without notice, at the expiration of the period contemplated in the agreement.\\\" Maul\\u00e9, J., in the same case said, \\\"that the defendant became tenant to the plaintiff from year to year, for so long a time as they should respectively please, determinable at the end of any year at a half year's notice, the defendant to go out at the end of five years and a half without notice. ' ' In Devenish v. Moffatt, Lord Campbell said that, \\\"we think the tenancy created from year to year must be understood to continue only during the three years, liable to be determined during the three years by a notice to quit, and expiring at the end of the three years by efflux of time. ' '\\nThe result of these authorities is that in any case of entry and payment of rent under a lease made invalid by the statute of frauds, the agreement in such lease for its termination will bind the parties if the property is field up to that period. In the present case the defendant entered the premises and paid yearly rent which made him a tenant from year to year, hut he agreed upon the specific time of one year. He held'until that time and therefore was not entitled to notice to quit.\\nIt is scarcely necessary to state, in conclusion, that we have treated of tenancies from year to year. A letting for a less period than a year and payment of rent accordingly, say from month to month, would create that sort of tenancy; and what we have said herein could be applied to that hind of case.\\nThe new trial should not have been granted and the order to that effect will be reversed and the cause remanded with instructions to reinstate the verdict.\\nAll concur.\"}"

mo/1533400.json

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+"{\"id\": \"1533400\", \"name\": \"WILLIAM A. HOFFMAN, Respondent, v. MICHAEL WALSH, Appellant\", \"name_abbreviation\": \"Hoffman v. Walsh\", \"decision_date\": \"1906-02-05\", \"docket_number\": \"\", \"first_page\": \"278\", \"last_page\": \"287\", \"citations\": \"117 Mo. App. 278\", \"volume\": \"117\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Kansas City Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:24:49.984467+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"WILLIAM A. HOFFMAN, Respondent, v. MICHAEL WALSH, Appellant.\", \"head_matter\": \"WILLIAM A. HOFFMAN, Respondent, v. MICHAEL WALSH, Appellant.\\nKansas City Court of Appeals,\\nFebruary 5, 1906.\\n1. NEGLIGENCE: Nuisance: Blasting. Blasting rock cannot be regarded as a nuisance per se and condemned as being negligent as a matter of law, but it is a work which one proprietor may lawfully do upon his own land provided he takes care to avoid injuring persons or property in the vicinity, but subject to pay for any'injury done in case the blasting involves a direct invasion of adjacent premises. Cases considered and distinguished.\\n2. -: -: -: Liability. A contractor in excavating a sewer for a city was compelled to blast and one of the blasts threw a rock which injured a brick mason employed in his vocation some five hundred feet away. Eeld, the contractor had a right to blast the rock and in general was only liable for injury in case of negligence in setting off the blast, but, moreover, he was liable for any injury, which was the direct consequence of throwing stone upon the premises where the brick mason was at work, and this without regard to whether he was negligent or not.\\n3. -: -: Pleading: Proof: Instructions. A petition alleged that a contractor was guilty of negligence in failing to cover a blast and in using a powerful explosive and in failing to warn of the danger. The trial court disregarding such allegations submitted the case on the theory that defendant was liable if the rock was thrown, out by the blast. Held, the allegation of negligence was superfluous and proof of the explosion injuring plaintiff was proof of the negligence, and the rule that specific acts of negligence must he proved as alleged is not applicahla\\nAppeal from Jackson Circuit Court. \\u2014 Eon. J. E. Slover, Judge.\\nAffirmed.\\nLathropMorrow, Fox & Moore for appellant.\\n(1) There is no evidence that the rock which struck the plaintiff came from the place where the defendant was blasting. Hite v. Railroad, 130 Mo. 132 ;\\u2022 Stokes v. Burns, 132 Mo. 214; Oglesby v. Railroad, 150 Mo. 137; May v. Crawford, 150 Mo. 504; Cathcart v. Railroad, 19 M'o. App. 113; Summerville v. Railroad, 29 Mo. App. 148; Peck v. Railroad, 31 Mo. App. 123; Smillie v. Dollar Store, 47 Mo. App. 402; Hays v. Railroad, 51 Mo. App. 438; Gerrons v. Wenger, 51 Mo. App. 615; Glick v. Kansas City, 57 Mo. App. 97; Smart v. Kansas City, 91 Mo. App. 586;. Asphalt Co. v. Transit Co., 102 Mo. App. 469; Holland v. Railroad, 105 Mo. App. 117; Mbrelock v. Railroad, 87 S. W. 5. (2) There is no evidence that the defendant was negligent, and, therefore, the plaintiff is not entitled to recover. Gurley v. Railroad, 93 Mo. 445; Brannock v. Elmore, 114 Mo. 55; Bartley v. Railway, 148 Mo. 124; Peary v. Railroad, 162 Mo. 75; Turner v. McCook, 77 Mo. App. 196; Mitchell v. Prange, 110 Mich. 78, 67 N. W. 1096, 34 L. R. A. 182, 64 Am. St. Rep. 329; Simon v. Henry, 62 N. J. L. 486, 41 Atl. 692; Murphy v. Lowell, 128 Mass. 396, 35 Am. Rep. 381; Mills v. Railway, 1 Marv. (Del.) 269, 40 Atl. 1114; Earle v. Arbogast, 180 Pa. St. 409,1 Am. Neg. Rep. 677; Voight v. Car Co., 112 Mich. 504, 2 Am. Neg. Rep. 725; Walker v. Railroad, 71 la. 658; Driscoll v. Line Company, 37 N. Y. 637, 97 Am. Dec. 761. (3) The court gave no instruction to the jury on the negligence alleged in the plaintiff\\u2019s petition. Carder v. Primm, 60 Mo. App. 423; Cultivator Co. v. Rail road, 64 Mo. App. 305. (4) The court erred in giving to the jury plaintiff\\u2019s instruction numbered 1. Railroad v. Burnett, 80 Tex. 536; Jones v. Roberts, 37 Mo. App. 163; Winter v. Supreme Lodge, 96 Mo. App. 1.\\nL. A. LaughUn for respondent.\\n(1) ( The first objection urged by defendant is that there is no evidence that the rock which struck plaintiff came from the place where defendant was blasting. The authorities cited by defendant under this head are not blasting cases, consequently, they are valueless. Railroad v. Bernstein, 113 Ga. 175. (2) An examination of the eases shows that the courts of this country are unanimous on the proposition, that where rocks and earth are thrown by blasting on the lands of another, that the party doing the blasting is liable without regard to the question whether he was negligent or not. Where the injury is caused by concussion or vibration there is a difference of opinion. Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163; St. Peter v. Dennison, 58 N. Y. 416; Sullivan v. Dunham, 161 N. Y. 290. The evidence shows clearly that this blast was exploded in a thickly settled portion of the city. We are of the opinion that no degree of care will excuse a person, where death was caused by such explosion, from responsibility for it. Wright v. Compton, 53 Ind. 337; Tiffin v. McCormick, 34 Ohio St. 638; Carman v. Railroad, 4 Ohio St. 399; Railroad v. Eagles, 9 Colo. 544; Scott v. Bay, 3 Md. 431; Colton v. Onderdonk, 69 Cal. 155; Joliet v. Harwood, 86 111. 110; Fitzsimmons & Connell Co. v. Braun, 199 111. 390; Longtin v. Persell, 30 Mont. 306. (3) Defendant says that the court gave no instruction to the jury on the negligence alleged in the petition. This action was begun before a justice of the peace and the pleadings are to be liberally construed. The statement alleges that the blast was not properly covered. This was a general al legation of negligence. Proof that the rock which struck plaintiff came from the blast necessarily proved that the defendant did not properly cover it. Besides there was direct evidence of defendant\\u2019s witnesses that it was not properly covered.\", \"word_count\": \"3378\", \"char_count\": \"18970\", \"text\": \"BROADDUS, P. J.\\nThe plaintiff sues for damages, the result of an injury alleged to have been caused by the act of defendant. In July, 1904, he was engaged at his occupation as a bricklayer on the residence of S. H. Vaile at Forty-fifth street and Warwick boulevard, Kansas City, Missouri. The defendant, a contractor, was blasting rock in making an excavation for a sewer under a contract with said city, at a distance of about five hundred feet south of the place where plaintiff was working on a scaffold, on the inside of the west wall of said residence with his face to the west. While plaintiff was stooping and handling a brick, the defendant's employees set off an explosion in the rock in the trench and immediately a piece of rock struck him in the back severely injuring him. It was shown that the rock that struck the plaintiff resembled the rock that defendant was engaged in blasting and that there was other evidence that it came from that locality.\\nThe defendant introduced evidence tending to prove that the rock that struck plaintiff was not thrown by the said blast and defendant took reasonable and proper precaution to prevent the escape of rock and other debris from the trench when the blast was made. The trial resulted in a judgment for plaintiff, and defendant appealed. Under the evidence, the court was asked to direct a verdict for the defendant, which the court refused. The principal contention of defendant is that the court in refusing to direct a verdict in his favor committed error. Many authorities are cited by the defendant going to shoAV, as a rule, that, where one person is injured by another, the latter is not liable to the former if he was in the exercise of due care when the injury was inflicted. The plaintiff, in that respect, does not take issue with defendant, but says that they have no application under the facts of this. case.\\nIn Hay v. Cohoes Co., 2 Comstock (N. Y.) 159, it was shown that \\\"The defendant, a corporation, dug a canal upon their own land for the purposes authorized by their charter. In so doing, it was necessary to blast rocks with gunpowder, and the fragments were thrown against and injured the plaintiff's dwelling upon lands adjoining.\\\" It was held that \\\"The right of the owner \\u2022of lands to the enjoyment thereof is qualified by the right of others. Thus he may pursue any lawful trade,, but he cannot create a nuisance to the premises of another ; so he may did a canal, but in so doing he has no right to blast rocks with gunpowder so as .to cast them upon the premises of another.\\\" And, \\\"That the defendants were liable for the injury although no negligence was shown or want of skill in executing the work was alleged or proved.\\\" In Tremain v. Cohoes Co., Id., 163, the plaintiff's property was injured by defendant in the same manner as was shown they injured plaintiff's property in the Hay case. Defendants, on the trial, offered to prove that the work was done in a careful manner, but were not permitted to do so. The appellate court affirmed the action of the lower court and reaffirmed the law announced in the Hay case. In Sullivan v. Dunham, 161 N. Y. 290, the facts Avere that, while deceased was traveling along a public highAvay, he was killed by a section of a tree thrown from abutting property by an explosion. The court stated the question for decision as follows: \\\"The main question presented by this appeal is Avhether one, who, for a lawful purpose and without negligence or want of skill, explodes a blast upon his own premises and causes a piece of wood to fall upon a person lawfully traveling in a public highway, is liable for the injury thus inflicted.\\\". The court answers the question, by accepting the law of the Hay case and said: \\\"It rests upon principle founded in pub- lie policy, that the safety of property generally is superior in right to a particular use of a single piece of property by its owner. It renders the enjoyment of all property more secure by preventing such a use of one piece by one man as may injure all his neighbors. It makes human life safer by tending to prevent the landowner from casting, either with or without negligence, a part of his land upon the person of one who is where he has the right to be. . . . It lessens the hardship by placing absolute liability upon one who causes the injury.\\\" The rule was followed in St. Peter v. Denison, 58 N. Y. 416.\\nIn Munro v. Dredging Co., 84 Cal. 515, the explosion was in a thickly settled portion of the city of San Francisco. The court held that no degree of care will excuse a person from responsibility where death was by such explosion. The New York cases are supported by Wright v. Compton, 53 Ind. 337; The City of Tiffin v. McCormick, 34 Ohio St. 638; Carman v. S. & I. R. Co., 4 Ohio St. 399; Railroad v. Eagles, 9 Col. 544; Bradford Co. v. St. Marys Co., 60 Ohio St. 560; Fitzsimons & Connell Co. v. Braun & Fitts, 199 Ill. 390; The City of Joliet v. Wm. Harwood, 86 Ill. 110.\\nThe appellant cites the following as authority for his position that he is only to be held to the exercise of reasonable care. In Murphy v. City of Lowell, 128 Mass. 396, it was held that \\\"A city, having the legal right to construct sewers in its streets, is not liable in tort for all damages that may be caused by the blasting of rocks, necessary in such construction, but only for such damages as are occasioned by the carelessness or unskillfulness of its agents doing the work.\\\" Walker v. Railroad, 71 Iowa 658, was a case where defendant had, as carrier, received and hauled to its terminus a carload of dynamite, which the connecting carrier failed to receive. The defendant placed the car on one of its side tracks, where it exploded and injured plaintiff's property a half mile away. The court held that the company had the right to store the car of dynamite at-some place in its yards and that the burden of proof was upon the plaintiff to show negligence. In Klepsch v. Donald, 4 Wash. 436, it was held that \\\"Blasting in a certain locality is not unlawful and the fact that a man was killed by a rock thrown by a blast between 940 and 1200 feet in a horizontal direction constitutes only a prima facie case of negligence, which may be rebutted by showing due eare upon the part of those discharging the blast.\\\" in Mills v. Railroad, 1 Marvel, 269, it was held that \\\"Blasting rock on or near a public highway is in itself dangerous work, and persons engaged therein must use care in proportion to the danger.\\\" In Simon v. Henry, L. R. N. J. 486, the case was where \\\"The defendants, having contracted with the municipal authorities to construct a public sewer, used dynamite to blast trap-rock in making the necessary trench. The plaintiffs claimed that the concussion resulting from the blast cracked the walls of their building standing on the side of the street. Held, that if the defendants exercised reasonable care and skill in the use of the explosive, they were not responsible for the damage alleged.\\\" In Brannock v. Elmore, 114 Mo. 55, it is held that \\\"It is actionable negligence to violate an ordinance, which prohibits blasting of rock without first covering it with timber!\\\" The latter is the only case in this State that seemingly has any application to the question. In fact, we do not think it has any, as it was merely to recover damages for injuries resulting from a violation of a municipal ordinance.\\nIt is contended by defendant that the rule in Hay v. Cohoes Co., and Tremain v. same, supra, has been applied only to injuries to real property from casting rock and dirt thereon as the result of blasting, except in the case of Wright v. Compton, supra; and that, therefore, it does not apply to injuries to'persons and, to support the argument, cites the case of Losee v. Buchanan, 51 N. Y. 476, wherein the court uses this language: \\\"The damage in the Cohoes cases was the necessary conse quence of just what the defendant was doing.\\\" The question decided was that \\\"Where one places a steam boiler upon his premises and operates the same with care and skill, so that it is no nuisance, in the absence of proof of fault or negligence on his part, he is not liable for damages to his neighbor occasioned by the explosion of theboiler.\\\" The court very properly distinguished the case from that of the Cohoes cases. The use of a steam boiler upon one's premises is not the establishment of a nuisance. The damage to plaintiff was not \\\"the necessary consequence\\\" of defendant's act in placing the boiler upon his own premises, which was a lawful act and tended in no way to injure his neighbor unless he was guilty of negligence in selecting an unsafe boiler or in using it in an unskillful or careless manner. The opinion is an able one and reviews many of the cases, not only of this country but also of England. The object of the writer appears to have been to make clear the distinction between cases of nuisance or trespass, where the injury is the necessary consequence of the act itself, without regard to the question of negligence, and where there is neither trespass nor nuisance and the injury is not the direct consequence of the act itself, that the wrong consisted not in the doing of the act, but in the manner in which it may be done.\\nThe question is considered in Thompson's Commentaries on the Law of Negligence. After stating that the authorities are not harmonious on the question, he says that the \\\"far greater number proceed upon the enquiry whether there was negligence in doing the work at all, in the place where, and at the time when, it was done \\u2014 that is to say, whether the work was a nuisance, and consequently in theory of law negligence per se.\\\" And further, \\\"It is'obvious upon a moment's reflection that the work of blasting rocks, being an absolute necessity in excavating through beds of rock, in mining, in digging wells, in excavating foundations for buildings, in improving roads and streets, in digging canals, and in building railways, cannot under all circumstances be regarded as a nuisance per se and condemned as being negligent as a matter of law. On the other hand, it must be regarded \\u2014 and the decisions so regard it \\u2014 as a work which one proprietor may lawfully do upon his own land, provided he takes due care to avoid injuring persons or property in the vicinity, cmd subject to his obligation to pay damages for any injury which he does m case his blasting involves a direct invasion of the premises of an adjacent proprietor \\\"\\nWe take it that the true rule is stated in the Cohoes cases and the italicized quotation from Mr. Thompson's work on Negligence. And that the rule, as so stated,, applies to the case at bar. That the plaintiff had the right to blast the rock, in order to make a trench for the sewer, cannot be denied and, as to- any injury resulting therefrom to persons and property, generally speaking, he was only liable in case he was negligent in setting off the blast, which threw out the stone in question. But he was liable for any injury, which was the direct consequence of throwing said stone upon the premises of the owner where plaintiff was at work when he was struck by the stone, whether the defendant was negligent or not. And it can make no difference whether the injury in such cases is to the owner t)r his employee. It would be against every conception of right reason to hold that one proprietor can blast rock upon his own premises and throw them upon that of his neighbor and excuse himself on the ground that he was in the exercise of due care in so doing. It amounts to a plea of justification for the trespass. That is, that the trespass or nuisance was done without negligence, but with care and skill.\\nThe petition alleges that defendant in causing the explosion was guilty of negligence in failing to cover the blast, so as to prevent fragments of rdck being* thrown through the air, in using too powerful an explosive considering the surroundings, and in failing to warn plaintiff of the danger that threatened him. The court disregarded the allegations of negligence in its instructions and submitted the case upon the theory that, if the fact was established that the rock that struck plaintiff was thrown out by the blast in question, defendant was liable, without reference to the question of negligence. Notwithstanding plaintiff alleged negligence, it was not necessary to prove it in order to recover, the allegation being superfluous. Besides, proving that the explosion under the circumstances injured plaintiff, was proving negligence. The law characterizes the act as negligence, per se. The case does not fall within the rule that, where specific acts of negligence are alleged, the plaintiff is restricted to his allegations in making out his case. It comes under the different rule that, where it is not necessary to allege negligence, it is not necessary to prove it.\\nThe defendant has seriously contended throughout that there was no evidence showing that the rock that struck plaintiff came from the alleged blast. We think differently. Every reasonable probability shows that it could have come from no other cause.\\nAnd we are persuaded that the rule adopted is a just one, as it will in a measure secure the safety of persons and property. And we further believe it is entirely practicable, if proper caution is exercised, that all such work may be carried on successfully without detriment to persons or property.\\nFor the reasons given, the cause is affirmed.\\nAll concur.\"}"

mo/1589799.json

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+"{\"id\": \"1589799\", \"name\": \"STATE OF MISSOURI, Appellant, v. D. J. DONAHUE, Respondent\", \"name_abbreviation\": \"State v. Donahue\", \"decision_date\": \"1910-01-03\", \"docket_number\": \"\", \"first_page\": \"639\", \"last_page\": \"640\", \"citations\": \"139 Mo. App. 639\", \"volume\": \"139\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Springfield Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:16:10.490763+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"STATE OF MISSOURI, Appellant, v. D. J. DONAHUE, Respondent.\", \"head_matter\": \"STATE OF MISSOURI, Appellant, v. D. J. DONAHUE, Respondent.\\nSpringfield Court of Appeals,\\nJanuary 3, 1910.\\n1. APPELLATE PRACTICE: Criminal Case: Typewritten Record: Duty to Examine. In a criminal case, notwithstanding no printed abstract of the record or brief is filed by the parties, hut the state has, however, filed a complete typewritten trans-script of the case, it is the duty of the appellate court to examine the record, including all the motions and everything that was done in the trial court.\\n2. CRIMINAL LAW: Plea in Abatement: Appeal by the State. The State cannot appeal from the judgment of the court sustaining a plea in abatement to an indictment.\\nAppeal from Jasper Circuit Court. \\u2014 Hon. Henry L. Bright, Judge.\\nAppeal dismissed.\", \"word_count\": \"570\", \"char_count\": \"3298\", \"text\": \"GRAY, J. \\u2014\\nOn the 2d day of November, 1908, a special grand jury in Jasper county returned an indictment against the respondent, charging him with unlawfully keeping his dramshop open in said county on the first day of the week, commonly called Sunday. The defendant appeared and filed a plea in abatement, alleging a number of grounds in support thereof. The prosecuting attorney filed a demurrer to this plea in abatement, which was by the court overruled. After the overruling of the demurrer, the prosecuting attorney refused to plead further, and the court rendered a judgment sustaining the plea in abatement, and discharging the defendant. The prosecuting attorney filed an affidavit for an appeal, and the court allowed the same.\\nWe have not been favored with any printed abstract of the record or brief by either side. The State has, however, filed with the clerk of this court a complete record of the case, including the information, plea in abatement, demurrer and the ruling of the court thereon, and therefore, it is onr duty to examine this record, including all the motions and everything that was done in the trial court, as shown by the record. [Section 2716, Revised Statutes 1899; State v. Tuller, 122 S. W. 313.]\\nCan the State appeal from the judgment of the court sustaining a plea in abatement to an indictment? At the same time the court sustained the plea in abatement in this case, it did so in a number of other cases returned by the same grand jury, and in which the same pleas and demurrers were filed that were filed herein. The plaintiff appealed some of these cases to the Supreme Court, and on the 23d day of November, of this year, the Supreme Court sustained motions to dismiss the appeals, and held that the State has no right to appeal from an order of the court sustaining a plea in abatement.\\nThe cases passed upon by the Supreme Court, are: State of Missouri, appellant, v. Ivis Craig, respondent, and State of Missouri, appellant, v. Fred Firey, respondent. In passing upon the case of State v. Craig, Judge Ga,ntt said: \\\"It being obvious in this case that the indictment was not quashed on a motion to quash, nor was a demurrer thereto sustained, nor has the indictment been adjudged insufficient on a motion in arrest, and as an appeal is only permitted the State in these cases, the motion to dismiss the appeal must be sustained, and it is so ordered.\\\"\\nWe have no other duty to perform, but to follow the decision of the Supreme Court in these eases, and hence, the appeal will be dismissed.\\nAll concur.\"}"

mo/1589849.json

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+"{\"id\": \"1589849\", \"name\": \"BANK OF LADDONIA, Defendant in Error, v. BRIGHT-COY COMMISSION CO., Plaintiff in Error\", \"name_abbreviation\": \"Bank of Laddonia v. Bright-Coy Commission Co.\", \"decision_date\": \"1909-06-08\", \"docket_number\": \"\", \"first_page\": \"110\", \"last_page\": \"129\", \"citations\": \"139 Mo. App. 110\", \"volume\": \"139\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"St. Louis Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:16:10.490763+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"BANK OF LADDONIA, Defendant in Error, v. BRIGHT-COY COMMISSION CO., Plaintiff in Error.\", \"head_matter\": \"BANK OF LADDONIA, Defendant in Error, v. BRIGHT-COY COMMISSION CO., Plaintiff in Error.\\nSt. Louis Court of Appeals,\\nJune 8, 1909.\\n1. PRACTICE: General Verdict: Several Courts. Where a petition. was in three counts, two of which stated causes of action arising from separate and distinct alleged contracts, so that proof of one would not support a verdict upon the other, a general verdict which did not disclose which agreement the jury found had been made was (improper.\\n2. BILLS AND NOTES: Acceptance: Conflict of Laws. Where the drawee of a bill of exchange, payable in Illinois, made a verbal agreement in Missouri, before a bill was drawn, to ac cept and pay the hill, the law of Illinois being the law of the place of performance, governs, and in the absence of proof as what the law of Illinois was, the common law rule would prevail.\\n3. -: -: Verbal Acceptance: Common Law. At common law a breach of a verbal agreement to accept a bill of exchange, to be thereafter drawn, gives sufficient ground for an action against the promisor by the payee.\\n4. PRACTICE: Contracts: Contract for Benefit of Third Party. Where a contract is entered into by two parties, for the benefit of a third party, such third party can maintain an action on the contract even though he is not named in it, if his interest in it is not merely that of indemnity.\\n5. -: -: -. Where property is placed in the hands of a person who agrees to deliver it, or the proceeds of a sale thereof, to a third person, the latter can maintain an action for such proceeds against the person in whose hands the property was placed.\\n6. CUSTOM: Commission Merchants: Contracts. The fact that a commission merchant had habitually remitted to a certain bank the proceeds of the sales of the property of one of his customers did not bind him to remit the proceeds of any particular sale to such bank.\\nWrit of Error to the St. Louis City Circuit Court.\\u2014 Hon. W. M. Kinsey, Judge.\\nReversed and remanded.\\nB. M. Nichols for plaintiff in error.\\nThe promise- of the defendant was to accept a draft drawn for the Bailey cattle. The testimony shows that the defendant refused to accept the draft drawn for the Bailey cattle. The evidence conclusively shows an oral agreement to accept Hobson\\u2019s draft drawn for the purchase of the cattle. Plaintiff cannot recover upon this oral promise. R. S. 1899, sec. 143; see Sess. Acts 1905, sec. 132, p. 258; Nichols v. Commercial Bank, 55 Mo. App. 81; Dickson v. March, 57 Mo. App. 566; Haeberle v. O\\u2019Day, 61 Mo. App. 390; Flato v. Mulhall, 72 Mo. 524. The uncontradicted testimony shows that the de fendant agreed to accept, or pay, which is the same thing, drafts drawn by Hobson for cattle purchased. There was no testimony that he agreed that \\u201cin consideration of said bank furnishing money to said Hob-son with which to purchase cattle, and other live stock, to be consigned to defendant company for sale on commission, that said defendant would remit and pay to the plaintiff bank the proceeds of the sale of stock thus bought and shipped by said Hobson.\\u201d There was total failure of proof of the contract described in this instruction. Beck v. Ferrara., 19 Mo. 30; Waldheir v. Railway, 71 Mo. 514.\\nE. C. Kennen, P. H. Cullen and Jos. 8. McIntyre for respondent.\\nA third party may maintain an action on a promise to another in many cases as where one delivered money or personal property to another on the promise of the latter to deliver it over to the third party who has a beneficial interest therein, or to convert it into money and pay him the proceeds. Lawrence v. Fox, 20 N. Y. 268; Meyer v. Lowell, 44 Mo. 329; Rogers v. Goswell, 58 Mo. 589; Lime & Cement Co. v. Wind, 86 Mo. App. 163; Roth-well v. Skinker, 84 Mo. App. 169; Crone v. Stinde, 156 M'o. 262; Beatty Mfg. Co. v. Gerardi, 166 Mo. 142; Jefferson v. Asch, 53 Minn. 446, 25 L. R. A. 257 and note; Twedale v. Twedale, 61 L. R. A. 909. The contract made by Bright for the commission company with McCune for the bank was not a promise to pay draft of Hobson or the debt of another, but a promise to pay its debt in a particular way, that is the proceeds of stock shipped by Hobson to them for which the bank had advanced money to pay in the first instance, was to be returned through the bank of Laddonia. Winn v. Hiller, 43 Mo. App. 139; Frissell v. Williams, 87 Mo. App. 518; Beeler v. Finnel, 85 Mo. App. 438; Bradshaw v. Cochran, 91 M'o. App. 294. By virtue of section 447 of our statute one who makes and breaks an oral promise to pay a draft even is liable for damages to one who negotiated the draft relying on the promise and section 30 of the new negotiable instrument law (see 463, Mo. Statutes) defines \\u201cnegotiation\\u201d in such way that it can be clearly held the bank in the case \\u201cnegotiated\\u201d the draft mentioned in evidence. E. S. 1899, sec. 447; Negotiable. Instrument Law, sec. 30; Mo. Ann. Statutes, sec. 463 (30); Flata v. Mulhall, 72 Mo. 526. As to the right to recover on account of money had and received and when a judgment for money had and received may be entered, see the following cases: Clark v. Bank, 57 Mo. App. 285; York v. Farmers Bank, 105 Mo. App. 127; Eichardson v. Drug Co., 92 Mo. App. 515; Harrison v. Lake-nan, 189 Mo. 598; Banking Co. v. Donovan Com. Co., 195 Mo. 288.\\nStatement. \\u2014 Action for $1875.37, as money had and received by defendant but belonging to plaintiff. The facts out of which the controversy arose may be summarized from the evidence for plaintiff as follows: Prior to September, 1905, the firm of Cunningham & Hobson had been engaged in buying cattle in Audrain county and shipping them to defendant under an arrangement to which said firm, plaintiff and defendant were parties. Plaintiff is a banking corporation whose place of business is in said county and the Bright-Coy Commission Company handles stock on commission and otherwise at the National Stock Yards in Illinois, across the Mississippi river from St. Louis. The arrangement was like this: Cunningham & Hobson would buy cattle from farmers and pay for them with checks drawn on plaintiff bank in favor of the sellers. To get funds into the bank to meet these checks, Cunningham & Hobson would draw drafts at the same time in favor of the bank on the Bright-Coy Commission Company, defendant, to which they shipped and consigned the cattle. Plaintiff would put the amount drawn against each shipment to Cunningham & Hobson\\u2019s credit on its books, thereby giving the firm an account wherewith to meet the checks drawn in favor of the men from whom the cattle were bought, would transmit the drafts to plaintiff\\u2019s correspondent in St. Louis, which would present them to the drawee, the Bright-Coy Commission Company, and the latter would pay them with the money obtained by selling the cattle against which they had been drawn. Either that plan was followed, or occasionally Cunningham & Hobson would draw no draft on defendant, but nevertheless plaintiff bank would give said firm credit on the books of enough money to discharge checks drawn to pay for a carload of cattle, and when the cattle had been shipped to defendant and sold by it, defendant would remit the proceeds, less a commission, to plaintiff. Both methods were authorized by the tripartite agreement. In September, 1905, Hobson wished to do business on his own account, and defendant wished to do business with him just as it had with the firm of Cunningham & Hobson. Testimony for plaintiff goes to prove Hobson, plaintiff, and M. A. Bright, representing defendant, agreed Hobson should go ahead with the business, the bank should furnish money for the purchase of cattle, and defendant reimburse the bank, either by honoring drafts the bank might draw on defendant against shipments of cattle or by remitting the proceeds of the sales of shipments to the bank when no drafts were drawn. In May or June, 1906, Hobson purchased thirty-two head of cattle from a man named Bailey for $2200 or more, and plaintiff furnished the money to pay for them pursuant to the aforesaid agreement. In this deal, as in most instances, Hobson drew a draft dated June 9, 1906, on defendant in favor of plaintiff\\u2019s cashier; whereupon plaintiff gave him credit for said sum on its books and honored the check issued by him to pay for the cattle. Instead of Hobson\\u2019s- draft being honored on presentation as had been agreed and was customary, defendant refused payment and it was protested. Later, on June 12, 1906, defendant transmitted to plain tiff, on account of the sale of the Bailey cattle which had been shipped to defendant, a balance of $374.63 directing plaintiff to place it to the credit of John Hobson. The shipment of cattle was sold by defendant for about $2200, of which- sum defendant applied $1700 or $1800 in discharge of an account Hobson owed it for feed and other things, remitting the balance to the bank. The present action was instituted to recover the sum retained by defendant on the ground that in equity and good conscience, and pursuant to the business arrangement among the parties, the bank was entitled to it. After defendant had refused to pay the draft plaintiff\\u2019s cashier went to the National Stock Yards to see about the matter; whereupon Bright admitted the arrangement he had made with plaintiff\\u2019s cashier, was for the bank to furnish Hobson money to buy cattle on defendant\\u2019s promise to reimburse the bank out of the proceeds of the shipments, but said defendant had applied the proceeds of the Bailey cattle in discharge of what Hob-son owed it \\u2014 that said transaction was a cold business proposition between plaintiff and defendant and had nothing to do with the arrangement made between plaintiff\\u2019s cashier and Bright. We have stated the case according to the testimony for plaintiff. For defendant it was equally strong in its tendency to prove no such arrangement as plaintiff insists on had been made; that defendant never promised, either to honor drafts drawn by Hobson in favor of plaintiff or remit to plaintiff the proceeds of sales of stock shipped to it by Hobson; that the business was according to the ordinary course of such dealings and amounted to this: Hobson would ship the cattle to defendant, defendant would sell them and remit the net proceeds to the bank to be put to Hob-son\\u2019s credit, not pursuant to any agreement with plaintiff to do that, but simply because Hobson directed his money to be sent to the bank. Hobson himself gave testimony in support of defendant\\u2019s theory of the transaction, as did other witnesses, and the sum of the mat ter is there was a square conflict in the evidence on the main issue of fact. The first count of the petition alleges defendant received on June 12, 1906, $2250 which belonged to plaintiff, and it then and thereby became defendant\\u2019s duty to pay the whole of' said amount to plaintiff, but defendant only paid plaintiff $374.63 and retained $1875.37 for which plaintiff prayed judgment. The second count averred defendant and John Hobson entered into an agreement prior to June 10, 1906, by which Hobson was to purchase cattle and other live stock, and' ship them to defendant to sell; that defendant agreed with Hobson if he would do this, defendant would pay the purchase price of the stock to plaintiff; that long prior to said date and pursuant to said agreement, Hobson had been buying cattle and shipping them to defendant, and the latter had paid for them by remitting the purchase price to plaintiff; that plaintiff was aware of said agreement and its terms, and that defendant was solvent and Hobson was not; that relying on said agreement plaintiff paid for all live stock bought by Hobson by honoring his checks, and thereupon would notify defendant of the amount of the purchase price and defendant would remit the amount immediately; that in accordance with said agreement, Hobson, on June 9th, bought cattle to be shipped to defendant as usual, drew his check on plaintiff for $2250, which plaintiff paid, being the purchase price of said cattle, and then Hobson directed defendant to pay plaintiff the full purchase price, as it was defendant\\u2019s duty under said agreement between defendant and Hob-son, to do. The count then alleges defendant sold said shipment of cattle and refused to pay plaintiff said sum. of $2250 and only paid it $374.63; that plaintiff had demanded the price of said cattle and prayed judgment for $1875.37. The third count of the petition says plaintiff paid one Bailey at the special instance and request of John Hobson, as the price of some cattle, the sum of $2250 on June 9, 1906, and it was then gpd there agreed between Hobson and plaintiff the said cattle were to be shipped to defendant, and the latter was to sell them and at- once remit the proceeds to plaintiff; that it was agreed between Hobson and plaintiff that when said cattle were delivered to defendant \\u201cthey were to be paid for, cash on delivery, and payment made to said bank that defendant had full knowledge of said agreement when it received the cattle, the latter being received by defendant on the express condition the purchase price should be paid to plaintiff; that defendant sold the cattle but refused to pay the whole purchase price to plaintiff, and though they sold for $2250, only paid plaintiff $374.-63, which- was contrary to the agreement. Judgment was prayed for $1875.37.\\nThe court submitted the case to the jury on the following instructions:\\n\\u201c1. The court instructs the jury that if you believe and find from the evidence in this case that on or about the month of September, 1905, the John Hobson mentioned in the evidence was about to engage on his own account in the purchase and shipment of cattle and other live stock from the vicinity of Laddonia, Missouri, to the markets of St. Louis and East St. Louis, and if you further believe and find from all the facts and circumstances shown by the evidence in this case that the defendant, Bright-Coy Commission Company, through its president, Mr. Bright, about that time entered into an agreement or understanding with the plaintiff bank or with Hobson, whereby, in consideration of said bank furnishing money to said Hobson with which to purchase cattle and other live stock to be consigned to the defendant company for sale on commission, the said defendant would remit and pay to the said plaintiff bank the proceeds of sale of stock thus bought and shipped by said Hobson; and if you further believe and find from the evidence that on or about the 9th day of June, 1906, plaintiff bank, relying upon said understanding and agreement, cashed a check for $2,250 drawn by said Hobson upon it in payment for 32 head of cattle, bought and about to be shipped by said Hobson to the defendant and that defendant received and sold the same on the market at East St. Louis, and thereafter failed and refused to remit or pay to the plaintiff the proceeds of said cattle except the sum of $374.63, then your verdict will be for the plaintiff.\\n\\u201c2. The court instructs the jury that if you believe and find from the evidence in this case that no agreement or understanding had been entered into between the defendant and the plaintiff or between the defendant and said Hobson whereby, prior to the 10th day of June, 1906, in consideration that plaintiff would advance money to said Hobson with which to buy and ship stock to the defendant to be sold on commission, the defendant would remit to the plaintiff the proceeds of all stock thus bought and shipped by Hobson to it, then your verdict must be for the defendant.\\n\\u201c3. If you find for the plaintiff under the foregoing instructions, you will assess its damages in a sum equal to the net proceeds of the cattle in question, less the sum of $374.63, sent by defendant to plaintiff.\\u201d\\nThe following instructions requested by defendant were refused:\\n\\u201c1. The court instructs the jury that under all the testimony in this case they must find a verdict for the defendant.\\n\\u201c2. The court instructs the jury that if they believe from the evidence that defendant did not agree with the plaintiff to pay for cattle purchased by John Hobson, then they must find a verdict for defendant.\\n\\u201c3. The court instructs the jury that if they believe from the evidence that the only contract or agreement between the Bright-Coy Commission Co. and the plaintiff Bank of Laddonia was that the Bright-Coy Commission Co. were to pay drafts drawn by. John Hobson in favor of the Bank of Laddonia for the pur chase price of cattle purchased hy said John Hobson, then the jury must find a verdict for the defendant.\\n\\u201c4. The court instructs the jury that although they may believe from the evidence that on the 9th day of June, 1906, at the special instance and request of John Hobson, plaintiff paid to one Bailey the sum of $2,250 as the purchase price of certain cattle, and that it was then and there agreed between the said Hobson and the plaintiff that said cattle were to be shipped to the defendant, Bright-Coy Commission Co. and by the said Bright-Coy Commission Co. sold and the proceeds thereof remitted to the plaintiff; although the jury may further find and believe from the evidence that the defendant had full knowledge of said arrangement between the said John Hobson and the said plaintiff; yet if they further find and believe from the evidence that a.t the time the said cattle were received by the defendant for sale, the said Hobson was indebted to the defendant, and the defendant sold the said cattle and applied so much of the proceeds thereof as would satisfy the said Hobson\\u2019s indebtedness to the defendant, and remitted the balance of $374.63 to the said plaintiff to be placed to the credit of the said Hobson, then the jury must find a verdict for the defendant.\\n\\\" \\u201c5. The court instructs the jury that although they may believe from the evidence that the defendant John Hobson entered into an agreement under which the said John Hobson was to ship live stock to the defendant for the purpose of having same sold at the market, and that when so sold the defendant would pay the purchase price of the same to the Bank of Laddonia, plaintiff herein, and that relying upon the said agreement the plaintiff furnished to John Hobson the money with which to purchase the said stock on the 9th day of June, 1906; and if the jury further find and believe from the evidence that at the time of said agreement the said John Hobson was indebted to the defendant and that John Hobson shipped to the defend ant thirty-two steers on or about June 11, 1906, and the defendant sold the same and with the consent of the said John Hobson applied the proceeds thereof to the payment of the said John Hobson\\u2019s indebtedness and remitted the sum over and above the said Hobson\\u2019s indebtedness to the defendant, amounting to $374.63 to the said plaintiff bank, then the jury must find a verdict for the defendant.\\n\\u201c6. Although the jury may believe from the evidence that Michael Bright, president of the Bright-Coy Commission Co., promised the officers of the plaintiff to accept and pay a draft drawn upon the Bright-Coy Commission Co. for the amount which John Hobson was required to pay for the cattle to be shipped on the 10th day of June, 1906, to the Bright-Coy Commission Co.\\u201e yet if the jury further find and believe from the evidence that at the date of said promise the said John Hobson owed the defendant a sum of money amounting in the aggregate to the amount which said shipment of steers sold for; and if the jury further believe from the evidence that the said defendant applied the proceeds of the said sale to the payment of the said debt and remitted any surplus arising from the proceeds of said sale to the Bank of Laddonia to be placed to the credit of John Hobgon, then you must find a verdict for the defendant.\\u201d\\nThe jury found a general verdict for $1,798.40 in plaintiff\\u2019s favor and defendant appealed.\\nPerhaps we had better exhibit more fully the conflict in the evidence. McCune, cashier for defendant, testified to a tripartite arrangement of the character recited, among the bank, Hobson and the defendant. Bright testified unequivocally defendant had no arrangement with the bank of Laddonia and none with Hobson, but simply sold the latter\\u2019s cattle as they would sell any other customer\\u2019s, and remitted the proceeds to plaintiff for him because he so ordered; that the proceeds of the Bailey cattle were applied by defendant in discharge of a debt created by Hobson\\u2019s overdrawing on defendant; that defendant had furnished Hobson a lot of money to buy and feed stock. Some correspondence between defendant and Hobson indicates defendant acted according to instructions given in each instance about the disposition of proceeds of the shipments.\\n\\u201cNational Stock Yards, III., Apr. 17, \\u201906. \\u201cM'r. John Hobson,\\n\\u201cLaddonia, Mo.\\n\\u201cDear Sir: Inclosed you will find account of sale for your load of hogs sold today. As we had no instructions from you we presume these hogs are out of your feed lot and have placed the proceeds to your credit. If this is not the case, you can draw on us for the amount. Yours truly,\\n\\u201cBright-Coy Commission Co.\\n\\u201cNational Stock Yards, III., March 23, \\u201906. \\u201cMr. John Hobson,\\n\\u201cLaddonia, Mo.\\n\\u201cDear Sir: We paid your draft yesterday amounting to $254.35. We had no letter from you nor was there any notation on the draft to state what it was for. In order to keep our books straight you- will kindly notify us when making drafts what they are drawn against, so that we can make the proper charge on our books. Did you get the rubber stamp I mailed you several weeks ago, and how does the agent like it? Hope your cattle are doing well.\\n\\u201cYours truly,\\n\\u201cBright-Coy Commission Co.,\\n\\u201cPer G. W. Doerr.\\u201d\\nTorrison, assistant cashier of the bank, in a measure corroborated Bright, for the former said defendant notified the bank with every remittance from defendant to the bank, to put the remittance to Hobson\\u2019s credit, and this was done. The testimony of the secretary of defendant, though not so full as Bright\\u2019s, agreed with it as far as it went. As to a special agreement regarding the Bailey cattle; there was no proof further than this: Bright told Hobson over the telephone to ship them to St. Louis instead of East St. Louis; Hobson said he would have to draw on defendant for money to pay for them, and Bright said: \\u201cAll right.\\u201d Hobson gave testimony contrary to McCune\\u2019s as to there being a tripartite arrangement by which defendant pledged itself to plaintiff, either to honor drafts drawn on defendant in plaintiff\\u2019s favor against Hobson\\u2019s shipments of cattle or to remit the proceeds to plaintiff. The up-shop of Hobson\\u2019s testimony is that after hig partnership with Cunningham was dissolved, he told McCune he (Hobson) wanted to continue the cattle business and McCune said that was all right, the bank would take care of him. Hobson testified the name of the Bright-Coy Commission Company was not mentioned in the conversations between him and McCune, and, further, that McCune never required a draft to be drawn in the bank\\u2019s favor until long after Hobson had started in business for himself. According to Hobson, the transaction with reference to the Bailey cattle was without any special arrangement; he never had a conversation with plaintiff\\u2019s officers in which anything was said about defendant furnishing money to pay for any cattle, except he might have said if the bank would not let him have the money he would draw a draft on defendant and thus pay the party from whom he bought; and there never was any agreement between him and M'cCune, or him and Bright with reference to paying drafts.\", \"word_count\": \"6460\", \"char_count\": \"36852\", \"text\": \"GOODE, J.\\n(after stating the facts). \\u2014 The verdict in this case should have been given on the separate counts, for though the first count may be taken as a broad statement of what is more particularly set forth in the other two, the third declares on a canse of action distinct from that stated in the second. The latter declares on a general agreement between defendant and Hobson for Hobson to purchase stock from various persons, and ship them to defendant, which would, thereupon, pay the price of the stock to plaintiff; whereas the third count declares on a special agreement with reference to the Bailey cattle. Wherefore a genera] verdict was improper. [Brady v. Connelly, 52 Mo. 19; State to use v. Berning, 74 Mo. 87; Campbell v. King, 32 Mo. App. 38.] It is doubtful if the form of the verdict was as pointedly challenged as it should have been in the motion in arrest, which merely said the verdict was not responsive to the issues. Nevertheless, it is proper to call attention to the irregularity in the verdict, because this case cannot be understood or determined rightly, without reference to the diverse causes of action stated in the second and third counts of the petition and study of whether the evidence tends to support both causes. The first count is of a general nature, and while a verdict on it would stand if supported by proof of the substance of either the agreement stated in the second count or of that stated in the third, proof of one or the other would be essential to a recovery by plaintiff on any count. It is impossible to ascertain wrhich agreement the jury found had been made, and this is an important matter; for the evidence tended to prove Hobson and defendant agreed specially as alleged in the third count, but not in the particulars therein alleged, with reference to the Bailey cattle, and the cattle were shipped pursuant to their agreement; but no evidence was adduced which tended to establish a general agreement between Hobson and defendant, that Hobson should buy cattle, ship them to defendant and the latter would pay the purchase price to plaintiff, or reliance on such an agreement by plaintiff in the transactions between it and Hobson, as alleged in the second count. What evidence there is of the particular con tract alleged in the third count, is the testimony of the bank's cashier McOune, that he heard Hobson say to Bright through the telephone he (Hobson) would have to draw on defendant for the price of the Bailey cattle and Bright, in response say: \\\"All right.\\\"\\nThe question occurs just here whether a verdict would stand on either the first or third counts, upon what facts were in testimony regarding the Bailey shipment. The answer to this inquiry depends on the adequacy of the telephone conversation between Hobson and Bright, to entitle plaintiff, in equity and good conscience, to recover the proceeds of the Bailey cattle as money had and received to its use. Counsel for both parties have treated this point as though it were controlled by our statutes requiring an acceptance of a bill of exchange to be in writing. [R. S. 1899, sec. 443; Neg. Inst. Law, sec. 132, 1 Mo. Ann. Stat., sec. 463; Clements v. Yeats, 69 Mo. 623; Flato v. Mulhall, 72 Mo. 522.] The draft was not an inland but a foreign bill of exchange. [Neg. Inst. Act., sec. 129; 1 Mo. Ann. Stat., sec. 463.] Hence we do not see that our statute cuts any figure, as the law of the place of performance of the agreement Avould govern, and that is Illinois. What the law of Illinois is in this respect was not proved, and the common law must furnish our rule of decision. At common law a breach of a verbal agreement to accept a bill of exchange when draAvn, gives sufficient ground for an action against the promisor by the payee, if the latter relied on the promise in taking and discounting the draft. [2 Randolph, Com. Paper, secs. 604, 609, 613 and 614; Hall v. Bank, 133 Ill. 234; Brown v. Ambner, 66 Md. 391; Ruiz v. Renauld, 100 N. Y. 256; Seaboard Bank v. Burleigh, 147; Bissell v. Lewis, 4 Mich. 450.] And the authority to be cited next, says there has been no statutory change in Illinois to require an acceptance, or agreement to accept, to be in writing. As to the point in hand, this case is identical, in principle with Hall v. Cordell, 142 U. S. 116. In that case it appeared Hall Brothers & Company of Chicago, had agreed to accept and pay, or pay on presentation, all drafts made on them by George Farlow in favor of Cordell & Dunnica, for the price of live stock bought by Farlow and shipped by him. to Hall Brothers & Company at the Union Stock Yards, Chicago. On July 18,1886, Farlow shipped from Missouri nine carloads of cattle and one carload of hogs consigned to said firm, which received the shipment, sold the same for the account of Farlow, paid certain expenses and applied' the balance of the proceeds in discharge of overdrafts Farlow had previously made on the firm and an indebtedness for money lent him. At the date of the shipment Farlow drew a draft at Marshall, Missouri, in favor of Cordell & Dunnica for $11,724 on Hall Brothers & Company, the draft stating it was for the nine carloads of cattle and one carload of hogs. This draft was discounted by Cordell & Dunnica, the proceeds placed to Farlow's credit in the bank, and Farlow drew checks on the account thus created in his name, in favor of the persons from whom he had purchased the stock. On presentation of the draft Hall Bros. .& Company refused to pay it, it was protested and subsequently Cordell & Dunnica were paid a balance by Hall Brothers & Company of about $6,000 out of the proceeds of the stock, instead of being paid the full amount of the proceeds. An action of assumpsit was brought on the verbal agreement of Hall Brothers & Company to accept and pay all drafts Farlow might draw on them in favor of Cordell & Dunnica for shipments of stock, and the contract having been made in Missouri, the drawees contended it was invalid. The Supreme Court of the United States, pointed out the Supreme Court of Missouri had construed the statute of that State requiring the acceptance of bills of exchange to be in writing, to embrace not only an acceptance, but an agreement to accept; then said if the Missouri statute governed, no action could be main tained either on the agreement to accept or on the Missouri statute, which recognized the right of a person to whom a promise to accept a bill has been made, and who had drawn and negotiated the bill on the faith of the promise, to recover damages of the promisor if he refused to accept. [R. S. 1899, sec. 447.] The latter point was determined against the plaintiffs because they were the payees of the draft and it could not be held they had negotiated it in the meaning of said statute; and so it would be in the case at bar. But the Supreme Court of the United States declared that on principle and authority, the rights of the parties were not to be determined by the statute of Missouri, as said statute could have no application to a case brought to charge a person in Illinois upon a parol promise to accept and pay a bill of exchange in said State; declaring, further, the law of Illinois, that being the place of performance, should govern; and according to said law there was \\\"no difficulty in holding the defendants were liable for a breach of their parol agreement, made in Missouri, to accept and pay, or pay upon presentation, in Illinois the bills drawn by Farlow pursuant to that agreement in favor of plaintiffs;\\\" . . . since \\\"in Illinois a parol acceptance, or a parol promise to accept, upon a sufficient consideration, a bill of exchange, was binding upon the acceptor.\\\" That was an action of assumpsit, but we hold an action for money had and received would lie on the facts we have here, for the proceeds of the Bailey shipment, as well as assumpsit on defendant's agreement to pay the draft drawn against the shipment. In discounting the draft plaintiff must have relied on defendant's promise to pay, and there was ample evidence to prove this element of recovery. An instruction hypothesizing the requisite facts in testimony regarding the agreement to honor the draft for the Bailey shipment, and telling the jury to return a verdict if they found the facts as stated, would have been correct. We overrule the error assigned for the refusal of the court to grant the sixth instruction requested by defendant; and for the reasons given supra, and on the authority of the decision of the Supreme Court of the United States, we overrule the error assigned for the refusal of defendant's third request; inasmuch as a verbal agreement by defendant to accept any drafts drawn by Hobson in favor of plaintiff against shipments of cattle, would entitle plaintiff to redress if the agreement was not kept.\\nWhere is the proof of a general agreement between Hobson and defendant of the nature stated in the second count; to-wit, for Hobson to buy stock, ship it to defendant and defendant to remit the proceeds to plaintiff? In repeated perusals of the record we have not been able to find a trace of evidence of that kind. On the contrary, the entire testimony for plaintiff goes to establish a contract made by McCune as plaintiff's cashier, with Bright, president of defendant company, and Hobson \\u2014 a direct contract between the bank and defendant, and not one between Hobson and defendant on which the bank relied. Neither was there any testimony to support a contract of the latter character given by the witnesses for defendant; for they swore unequivocally the transaction in regard to Hobson's shipment of the cattle and the disposition of the proceeds, \\u2022 was not based on a particular arrangement of any species. If the contract stated in the second count had been proved, we think likely plaintiff might have maintained an action on it as one made for its benefit, since the cases now hold a third party may maintain an action on a contract entered into for his benefit, even though he was not named in it; if it was not merely for indemnity \\u2014 that is, to save the obligee harmless in \\u2022designated particulars \\u2014 but to do affirmative acts like paying money. [Bank v. Leyser, 116 Mo. 51; State v. Railroad, 125 Mo. 596; Porter v. Woods, 138 Mo. 539; Crow v. Stinde, 156 Mo. 262.] If the agreement alleged in the second count had been established, then so far as plaintiff's right to sue on it is- concerned, it would appear to fall within the following exception to the rule that strangers to a contract cannot sue on it; to-wit, where property is placed in the hands of another person, who agrees to deliver tiie proceeds thereof to a third person, the latter has a cause of action against the one in whose hands- the property was placed. [State v. Railroad, 125 Mo. loc. cit. 615.] And, we apprehend, in such an event the third party might sue the promisor for the proceeds of the property as money had and received to the plaintiff's use, instead of suing directly on the contract. Suffice to say there was no evidence of the agreement alleged in the second count, and the first and second instructions granted for plaintiff erred in leaving to the jury the question of whether such a contract had been formed. For the same reason the second instruction requested by defendant was right in theory, but to be precise, should exclude an agreement to pay drafts. Likely it was refused because it required a verdict for defendant, unless the jury believed defendant had agreed with plaintiff to pay for the cattle; but as all the evidence which tended to prove any agreement by defendant, tended to prove one with plaintiff and not with Hobson, the instruction fitted the proof.\\nThe circumstance that defendant had habitually honored Hobson's drafts in favor of plaintiff or else had remitted the proceeds of shipments to plaintiff, knowing the latter had furnished money to pay for the cattle, would not bind defendant to turn over the proceeds of any particular shipment to plaintiff unless there was some agreement, general or special, to do so. That is to say, a commission merchant is not bound to send to a certain bank the proceeds of property he sells for a customer, merely because he knows said bank had been furnishing the customer money to buy the shipments and the proceeds had been remitted to the bank pursuant to the customer's order. The bank would not have a lien on a shipment or its proceeds unless a bill of lading or some kind of security was taken. If defendant was bound by no engagement of any kind, then it was under no obligation to plaintiff; and. the question of its right to retain the proceeds would be one between it and Hobson. Contra, if the defendant had agreed to remit the proceeds of shipments to plaintiff, or to honor drafts drawn against them, and plaintiff had acted on the agreement. [Bank v. Gordon, 45 Mo. App. 295.]\\nWe hold no error was committed in refusing the fourth and fifth instructions asked by defendant, because each of them was too narrow in the facts hypothesized. They failed to take account of the evidence tending to establish a contract between defendant and plaintiff about the disposition of the proceeds of shipments.\\nThe judgment is reversed and the cause remanded.\\nAll concur.\"}"

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+"{\"id\": \"1632532\", \"name\": \"LOUIS H. BUTTS, Respondent, v. GAAR-SCOTT & COMPANY, Appellant\", \"name_abbreviation\": \"Butts v. Gaar-Scott & Co.\", \"decision_date\": \"1912-03-05\", \"docket_number\": \"\", \"first_page\": \"307\", \"last_page\": \"334\", \"citations\": \"164 Mo. App. 307\", \"volume\": \"164\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"St. Louis Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:29:04.375084+00:00\", \"provenance\": \"CAP\", \"judges\": \"Nortoni and Caulfield, JJ., concur.\", \"parties\": \"LOUIS H. BUTTS, Respondent, v. GAAR-SCOTT & COMPANY, Appellant.\", \"head_matter\": \"LOUIS H. BUTTS, Respondent, v. GAAR-SCOTT & COMPANY, Appellant.\\nSt. Louis Court of Appeals.\\nArgued and Submitted February 9, 1912.\\nOpinion Filed March 5, 1912.\\n1. TRIAL PRACTICE: Demurrer to Evidence: Waiver. Where defendant puts on evidence after his demurrer to the evidence offered at the close of plaintiff\\u2019s case is overruled, and again offers a demurrer at the close of the whole case, he waives th'e first demurrer.\\n2. NEGLIGENCE: Questions of Law or Fact. What is negligence in a given case is a matter of law, but the determination o\\u00ed the facts constituting negligence or due diligence are for the jury.\\n3. -: Injuries to Railroad Engineer: Vehicle Obstructing Track: Liability of Owner. In an action by a railroad locomo-. tive engineer against the owner of a grain separator for injuries sustained by reason of a collision between the separator, which was stuck on the track at a crossing, and the locomotive, evidence held to present a question for the jury whether reasonable diligence was exercised by defendant to remote the separator from the track or to warn approaching trains of the obstruction.\\n4. TRIAL PRACTICE: Credibility of Witnesses: Province of Jury. The credibility of the witnesses and the weight to be given their testimony are questions for the jury.\\n5. RAILROADS: Injuries to Engineer in Crossing Collision: Contributory Negligence: Speed. Whether it is negligence for a railroad train to approach a country highway crossing at the regular, scheduled speed of about twenty-five miles an , hour, there being no reason for apprehending an obstruction, is, in the absence of a- statute regulating the speed, a question ' for the jury; and the burden is on the party asserting it to prove that \\\"such speed was excessive.\\n6. -: -: -: Jumping from Engine. In an action by a railroad locomotive engineer, against the owner of a grain separator for injuries sustained by reason of his jumping from the engine while it was in motion, when a collision between the separator, which was stuck on the track at a crossing, and the locomotive seemed imminent, whether, under these circumstances, it was negligence for him to jump from his engine while it was in motion, held, a question for the jury.\\n7. NEGLIGENCE: Contributory Negligence: Emergency Acts. Where a person, when confronted with a sudden peril, chooses what appears to him, in his fright and confusion, to be a means of safety, he is not guilty of contributory negligence as a matter of law because the means adopted turns out to be disastrous for him.\\nAppeal from St. Louis City Circuit Court. \\u2014 Hon. Hugo Muench, Judge.\\nAffirmed.\\nFerriss, Zumbalen S Ferriss for appellant.\\nThe court erred in overruling the demurrer to the evidence offered at the close of plaintiff\\u2019s case, and again interposed at the close of the whole case, because : (a) There was no evidence of any negligence in warning the approaching train of the obstruction on the crossing. Frounfelker v. Railroad, 77 N. Y. Sup. 470; Railroad v. Culpepper, 19 Tex. Civ. App. 182; Smith v. Railroad, 113 Mo. 70. (b) There was no evidence tending to show any negligence in removing the obstruction from the crossing, (c) Plaintiff was himself guilty of negligence in operating the train, by approaching a dangerous public crossing at a high rate- of speed, the crossing being hidden from his view until the train was almost upon it. 8 Am. and Eng. Ency. Law'(2 Ed.), 390-392; 3 Elliott on Railroads, secs. 1160, 1161; ITalferty v. Railroad, 82 Mo. 90; Stepp v. Railroad, 85 Mo. 229; Eswin v. Railroad, 96 Mo. 290; Sullivan v. Railroad, 97 Mo. 113; Haley v. Railroad, 197 Mo, 15; Holmes v. Railroad, 207 Mo. 149;. Imp. Co. v. Stead, 95 U. S. 161; Railroad v. Netolicky, 14 C. C. A. 615; Ellis v. Railroad, 138 Pa. St. 506; Schwarz v. Railroad, 211 Pa. 625; Kinyon v. Railroad, 118 la. 349; Folkmire v. Railroad, 157 Mich. 159; Railroad v. Thompson, 62 Ala. 494; Railroad v. McGill, 121 Ala. 230; Railroad v. Mathews, 36 N. J. L. 534; Railroad v. Stoner, 2 C. C. A. 437; Kelly v. Rail road, 92 Mich. 19; Railroad v. Railroad, 154 Mo. App. 156. (d) Plaintiff was guilty of contributory negligence in jumping through the window of the cab while the train was running at full speed. Kleiber v. Railroad, 107 Mo. 240; McPeak v. Railroad, 128 Mo. 617; Richmond v. Railroad, 133 Mo. App. 463.\\nMarion G. Early for respondent.\\n(1) Persons attempting to cross railway tracks are required to exercise a degree of care commensurate to the possible dangers considering the character of the crossing, number of trains and the kind of machinery proposed to be transported over the crossing. Railroad v. Dunn, 56 Pa. St. 280; Gage v. Railroad, 6 Pa. Co. Ct. Rep. 4; Gramlieh v. Railroad, 9 Phil. 78; Bullock v. Railroad, 105 N. C. 280; Railroad v. Ref. Co., 129 N. Y. 597. (2) After the breakdown on the crossing it was incumbent upon defendant and its servants to remove the obstruction within the shortest time and space possible, and to this end use all the aid and means available, and this was not done. There is evidence that there was ample time within which to have done so had a proper effort been made. The issue was fairly submitted to the jury and the verdict is conclusive. Railroad v. Lackey, 21 So. 444; Railroad v. Railroad, 37 Atl. 627. (3) It was incumbent upon defendant as soon as the breakdown occurred to use a high degree of care to warn approaching trains of danger. There is abundance of evidence that such efforts were not made, and the issue was properly submitted to the jury. Railroad v. Lackey, 21 So. 444; Railroad v. Railroad, 37 Atl. 627. (4) The plaintiff was not guilty of contributory negligence in jumping from the engine to save his life. He believed he was in imminent danger and the issue was properly submitted to the jury. Feddeck v. Car Co., 125 Mo. App. 24; Hull v. Transfer Co., 135 Mo. App. 119; Bren v. Transit Co., 108 Mo. App. 399; Railroad v. Jacobs, 101 Ala. 149; Cottrill v. Railroad, 47 Wis. 634; Railroad v. Lane, 79 Tex. 643; Lierman v. Railroad, 82 Wis. 286. (5) Tbe train was running at its usual and lawful rate of speed. Tbe statutes of Missouri fix no rate of speed at which trains may not be run outside of municipalities. In this case the whistle was sounded for the particular crossing\\u2019 and every regulation observed. Goodwin v.' Railroad, 75 Mo. 73; Powell v. Railroad, 76 Mo. 80; Danskin v. Railroad, 22 L. R. A. (N. S.) 232; Dyson v. Railroad, 57 Conn. 9. (6) The train had a right to a clear track, Fiedler v. Railroad, 107 Mo. 645; and see Frost v. Railroad, 96 Mich. 470.\\nStatement. \\u2014 This is an action by plaintiff against defendant, appellant, to recover damages for personal injuries sustained by him. Plaintiff was a locomotive engineer in the employ of the St. Louis & San Francisco Railroad Company, hereafter referred to as the Frisco. At the time of the accident he was in charge of a locomotive of that company, driving his engine attached to freight cars over the tracks of the railroad company from the town of Eureka, Missouri, and beyond, the city of St. Louis, which is about twenty-seven and one-quarter miles east of Eureka, being the destination of his train. When about three-quarters of a mile east of Eureka and at a crossing of a public road called the Blakey road, seeing that his engine was about to run into a grain separator, which was directly across the track at this crossing, plaintiff jumped through the cab of his locomotive, with the result that both of his legs were broken between the an \\u25a0 kies and knees and it became necessary to have both amputated' immediately below the knees, making him a cripple for life.\\nThe grounds o.f negligence averred in the petition are, first, to state it generally, negligently and care lessly driving the separator and engine, hereafter called traction engine, and which was drawing the separator, on to the track of the railroad, whereby the separator became stuck on the tracks between the rails.\\nSecond, that after the separator had been so negligently pulled upon the railroad track, the employees of defendant negligently and carelessly allowed the same to remain upon the tracks for about twenty or twenty-five minutes, although having a sufficient number of men immediately at hand, and sufficient means and appliances available readily and quickly to have removed the separator from the tracks and to have avoided the collision.\\nThird, that after the separator had been so negli \\u2022 gently pulled and left upon the track of the railroad as before stated, that although defendant and its employees well knew or could have known with the exercise of ordinary care that trains were due to pass over and along the line of railway at frequent intervals and that they did so pass and that the separator in its position across the tracks, was liable to be run into by. trains operated upon the railroad and injure the employees operating them and passengers upon the train,\\u2019 and to injure the trains, and knew that the. separator, as an obstruction upon the track, was a dangerous menace to life and property, defendant and its employees in charge of the separator negligently and carelessly failed to notify the train dispatcher at Eureka and negligently and carelessly failed to send or attempt to send a flagman out in each or either direction to warn approaching trains of danger, and negligently and carelessly failed to give or make any ordinarily careful attempt to give any warning to approaching trains, though there were ample means and time with and within which warning could have been given to such trains, and negligently and carelessly allowed the separator to remain upon the track and obstruct the passage of trains for about twenty or twenty- five minutes after the separator had become jammed in tbe tracks, thereby causing the accident. It is further averred that the train was running at its usual rate of speed; that immediately upon seeing the obstruction plaintiff applied the emergency brakes with full force, reversed the engine and did all in his power to check the speed of his train but seeing that a collision was inevitable and that the engine was liable to be derailed and the train wrecked, and believing that his life was in imminent danger by reason of being about to run into this obstruction, he sprang from the window in the cab of the engine and struck the ground with great force and violence. Averring his injuries as before stated and what his wages had been and that by the accident he was disabled from following his vocation as an engineer, he prayed damages in the sum of $40,000.\\nThe answer of defendant, admitting its incorporation and that on the day of the accident it was the owner of the traction engine and separator, and that while these machines were under the charge and control of defendant\\u2019s agent, one Johnson, an eastbound freight train of the St. Louis & San Francisco Railroad Company collided with the separator at the crossing, it denies each and every other allegation in the petition. As a further defense, defendant pleads the contributory negligence of plaintiff in that he failed to heed the signals given by defendant\\u2019s servants for the purpose of flagging the train and failed to look ahead and keep proper watch to see that the track at the crossing of the public highway was unobstructed and ran the train at a high and dangerous rate of speed as it approached the crossing of the public highway and negligently jumped from the train while the same was running at a high and dangerous rate of speed.\\nThe reply was a general denial of the new matter in the answer.\\nThe cause was tried before a court aud a jury. The evidence is quite voluminous. Probably the most intelligible way of stating the ease is to commence with defendant\\u2019s part of it. On the day mentioned, one Johnson, a district agent for defendant, who had been in the business of selling and handling traction engines and separators for some thirty years, left St. Louis and went to the farm of a Mr. Cihak, situate on or near the Blakey road, to take an engine and separator from that farm into Eureka, the intention being to load and ship the engine and separator back to defendant\\u2019s factory at Richmond, Indiana, He was accompanied by his engineer, a Mr. Nevin, and also by Mr. Cihak, whom he had engaged to' furnish fuel and haul water to fill the boiler, and they fired and steamed up. They also had a wagon and team in charge of a Mr. North, the wagon carrying water, fuel, a log chain and possibly other material. A son of Mr. Cihak, a boy about fourteen years old, was also with the party. The traction engine was connected up with the separator and after steam was up they started out along the road toward Eureka. The water wagon referred to was being driven ahead of the engine. They were going along the Blakey road in St. Louis county, which road runs past Cihak\\u2019s farm toward the Frisco, then turning to the west runs along the side of the Frisco tracks for about 600 feet, and turning northwardly crosses those, not at a fight angle but diagonally, and then takes on up a slight rise to the Missouri Pacific Railway Company\\u2019s tracks, and crossing those about a quarter of a mile north of the Frisco, goes on west to Eureka. There is a slight rise from the Blakey road to the railroad at 'the crossing of the Frisco. About a quarter of a mile before the Frisco reached this crossing, as it leads east from Eureka, it curves sharply around a slight hill, but from Eureka to the curve the tracks are straight. The crossing is about a quarter of a mile west of the beginning of the curve. When the traction engine and separator approached the crossing, Johnson and Cihak walked up to it and saw it was clear. Whereupon the engineer of the traction engine, being told to come ahead, steamed up and started toward the crossing. Reaching the crossing the traction engine passed safely over the tracks, but one of the wheels of the separator slid off of a plank inside of the south rail and became \\u25a0jammed. The traction engine still .pulling, broke off a clip on one side of the axle, throwing the strain on the remaining clip, and forcing one of the front wheels under the body of the separator, so that the separator became immovable. The faces of these wheels of the separator are eight inches; the engine, an eighteen-horse power one, weighs about 1800 pounds, the separator about 6000 pounds, was about ten feet high from the ground to the top of the front end, and from front to rear is twenty-five feet and one inch over all, the body, from front to rear axles being fourteen feet, five and one-fourth inches. The tongue of the separator is twelve feet long and is attached to the front axle of the separator by two forks or \\u201cclips.\\u201d As soon as the men in charge found the wheel was caught they disconnected the remaining clip. After doing that they grabbed hold of the front axle of the separator and tried to swing it back into position so that they could back the separator off the track if possible. They found they could not do that because the left wheel was wedged and they could not swing it, Johnson, Cihak, Nevin and a Mr. Peppers all pulling at it. Johnson then called to North to bring down the log chain from the wagon which was across the tracks and up on the hill. North threw it out of the wagon and Cihak took it down to the separator. They started to attach the chain to the front axle of the separator and Johnson called to North to bring the team down, that is the horses attached to the wagon. North refused to bring the horses, as just then they heard a train which they first thought was on the Frisco tracks, but which proved to be on the Missouri Pacific tracks. As that train passed east they heard another train, and saw the men who were up on the hill between the Frisco and the Missouri Pacific tracks pointing toward Eureka and heard them hallooing to them, and they then saw the smoke of another train coming toward them from the west of Eureka on the Frisco track.- At this time the traction engine was probably twenty feet north of the track and the separator projected over the track about seven and one-half feet of its own length, the balance of it trailing off south of the railroad tracks. The train which they had heard coming along the Frisco track, came on and its engine struck the separator and knocked it to pieces. There was evidence on the part of defendant tending to prove that as soon as it appeared that the separator was stuck on the crossing, Mr. Johnson had immediately sent Mr. Cibak\\u2019s son along the track to the station agent at Eureka to notify the agent there that they had broken down on the track and to stop any trains approaching from either direction and told the boy to flag any train approaching from either direction and also told the boy to flag any train he saw approaching; told him to get to the station as fast as he could, and the boy testified that he started up the track \\u2018 \\u2018 as tight as he could tear. \\u2019 \\u2019 After they heard the train whistle at Eureka and saw that it was coming down the Frisco track, Johnson told Mr. Cihak, Sr., to run up the track and flag it. Cihak started up the track immediately toward the train, ran as rapidly as he could with his hand and his hat up, calling and making all efforts he could to attract attention. After Cihak had gotten a short distance, Johnson, seeing that the train was apparently gaining speed, followed Cihak up the track, throwing up his hands and waving his hat and making every possible effort to attract the attention of the engineer, while Mr. North remained at the separator, disconnecting the chain and pulled it and the tongue off the track and out of the way. Young Cihak testified that when the separator broke down, his father and Mr. Johnson sent him right off as soon as it happened to notify the agent to stop the train. He ran but did not get to the station; was at the twenty-seven mile post which, according to the plat, is about a quarter of a mile east of the station, when the train passed him. As the train came he waved his hat over his head and continued to do that until he had to get out of the way.\\nJoseph Cihak, Sr., testified that as soon as they had got caught on the track, he started his boy to Eureka and told him to run as fast as he could and notify the agent there was a machine broke down on the -track so that he could stop the trains on both sides until they could get the machine off. His son started off pretty fast but he did not watch him. After testifying to what they had done in attempting to get the separator off and that he had gone to the water wagon to get the chain, he testified that North threw the chain out and unhitched the team but called out that he would not take the team down there. He looked around to see what was the matter and then noticed that somebody, probably one hundred yards off, was pointing up toward Eureka. He looked up and could see the smoke of the coming train and knew that the train was approaching. He called out, \\u201cThe train is coming,\\u201d and started up the middle of the track as quickly as he could run, waving his hat; got about two hundred yards (five or six hundred feet) up the track, maybe a little further, when he reached the train. When he saw the smoke, he knew the train was east of Eureka and that his son could not have got there in time to have stopped it, so he ran to try and flag it and he kept running and waving his hat until he had to jump off the track. To the best of his judgment the separator had been on the tracx from seven to ten minutes when the train struck it\\u2014 at the outside ten minutes. Johnson testified that he ran up the track, waving his hat and arms, a distance of four or five hundred feet, until he was about to be run down by the train, and then jumped off the track; did not- see anyone in the cab until just before he jumped off the track and then he saw the engineer and the next instant the engineer (plaintiff) jumped from the cab. He jumped about one hundred and fifty or two hundred feet east of where he (Johnson) wus. Johnson testified that he had started up the track after they had called for the chain and did not hear the Frisco train whistle but he saw someone up on the hill pointing up the track toward Eureka and then saw the smoke and saw Cihak starting up the track and he followed pretty close after him. He testified that the separator was on the crossing from eight to ten minutes before the-train came, not to exceed ten minutes; did not look at his watch, and in a deposition which he had previously giv\\u00e9n, he had placed the time at from ten to fifteen minutes but he now testified that he did not think it was over ten minutes from the time they were caught on the crossing until the accident occurred.\\nThe testimony for defendant tended to prove that the men with the machinery, assisted by a Mr. Peppers, a by-stander, did all they could to clear the track, and that the Frisco train came on and was running at a rate of about thirty miles an hour when its engine hit the separator.\\nThe evidence on the part of plaintiff tended to show that the separator had been across the railroad track some twenty or twenty-five minutes before the collision occurred. Plaintiff himself testified that as he approached Eureka he whistled for the town when about a mile west of it. They were then going thirty miles an hour. The track is level there and straight. ITe then whistled for the order board. They got no order board but the operator at Eureka came out and gave a stop signal whereupon the operator held up an order; the conductor got down on the step and got it from him. They had then slowed down to about ten miles an hour. After getting the order the brakes were released and the engine speeded up again. Plaintiff testified that as they left Eureka he saw no one on the track signalling the train. The train was running slow enough as it left the yards at Eureka had anyone called to them to have heard him. The track curves around a hill at the crossing and from the seat of the locomotive on which the engineer was standing he testified that he could see the crossing when about one hundred and fifty feet from it. He was standing up, leaning out of the window and looking ahead. On the fireman\\u2019s side you could not see an obstruction twelve or fourteen feet high on the crossing until you were within one hundred yards of it. (It is to be said here that it was assumed that the separator was about twelve or fourteen feet high, instead of being under ten feet, as was subsequently developed.) The fireman called to plaintiff and gave him a \\u201cquick stop\\u201d sign, whereupon' plaintiff set the brakes and emergency with full force, reversed the engine and did all in hi\\u00a7 power to stop the train. The first thing he saw as he approached the crossing was a man running toward them who had his hat off and was waving it above his head, which in railroad usage is called a \\u201chighball\\u201d signal, meaning that the track is clear. He heard no one call or' make any noise. This man was between an electric block signal, which is about one hundred and fifty feet west of the crossing and the crossing, and about one hundred feet west of the crossing. After plaintiff saw this man waving his hat, he kept looking ahead end saw this big obstruction and thought the chances were that the engine would be derailed, the train wrecked and he would be killed; saw that a collision could not be avoided. He .testified: \\u201cI was overcome with fright; just simply lost control of myself for a moment and jumped off the train to save my life.\\u201d When plaintiff jumped he testified that he came very near jumping\\u2019 on the man that he had seen running toward him and giving the \\u201chighball\\u201d signal. The first intimation that he had of any danger was from the fireman. As the engine approached the crossing and about six hundred yards west of it, he had blown the whistle for the crossing. At the time of the collision they were running about twenty-five miles an hour, which was the usual schedule speed at that crossing and the signals they had received were for a clear track from Eureka to Tyson, a station some miles east of Eureka, distance not given. Plaintiff further testified that he was thoroughly acquainted with the road and knew that he could not see that crossing more than one hundred yards off. He testified positively that there was no boy anywhere near the track after he left Eureka for if there had been one he was positive he would have seen him. He saw the obstruction just at the time he saw this man give what he called the \\u201chighball\\u201d signal, then he jumped feet foremost, going through the window of his cab. Plaintiff struck the ground about one hundred feet west of the crossing and got the signal to stop about one hundred feet west of that. At the speed at which the train was going it could have been stopped within five hundred yards.\\nThe conductor of the train upon which plaintiff was engineer testified on behalf of plaintiff that he was in charge of the train that evening and knew the locality; that looking from the right hand side of the engine as you came to this crossing he did not think you could see over one hundred feet unless you hung way out of the window and looked around the boiler; from the left side of the engine you could see two hundred or two hundred and fifty feet, maybe further. When he first saw the obstruction he thought they were within about three hundred feet. They were about that distance from it when the fireman or head brakeman hallooed and said there was something on the track. The engineer put the air on the emergency brake and reversed the engine and the witness jumped on the fireman\\u2019s seat and when he looked back the engineer had jumped off. The first that he saw of anyone coming down the track to warn them was just about the time that the fireman or head brakeman had hallooed, when he saw a man wave a straw hat- at them and just about the time that he saw this man the danger signal was sounded.\\nOn cross-examination he said he could not tell how much of the separator was on the track; \\u201cit was just like a flash; just see it in front of you;\\u201d could not tell whether it stood at right angles or how it stood but could see it was a separator.\\nOn redirect examination, he testified that he thought the man who had given the signal by waving his hat was about a couple of hundred feet or something like that; he did not measure it, but he judged it was about that far,, west of the crossing.\\nAnother witness for plaintiff, the head brakeman, was on the engine with plaintiff at the time of the accident; was at his usual place; as they approached Eureka they whistled. As they got to the station they slowed down to eight or ten miles an hour and answered the stop signal; as they were leaving the town of Eureka they did not observe anyone approaching the train. Asked if he thought that if anyone had been there, any man, going at that rate of speed, it would have been possible for him to have spoken or hallooed so that they could understand him, going at the speed they were, he answered' that he thought they could. The first time he learned there was any danger on the track he should judge they were about two telegraph poles from the crossing. He was on the left band side of tbe engine, tbe north side of tbe track. Tbe first time bis attention was called to tbe fact that there was an obstruction on tbe track was when be saw it himself, although before that tbe fireman bad hallooed something but be did not know what. He (tbe bead brakeman) was looking ahead. As soon as tbe fireman hallooed tbe engineer reversed tbe engine, put tbe brakes and emergency on and tbe witness (tbe bead brakeman) started to get off tbe engine. There was nothing else could be done to stop after tbe emergency brakes were set. This witness stated that be was on the fireman\\u2019s seat and started to get off the engine but did not have time. He was facing the engineer and saw him jump out of the cab window but he (witness) did not have time to get off so he jumped on the coal pile (in tbe tender) about the time tbe engine struck tbe machine; stayed on the engine until it had hit the obstruction and jumped off after that but before the engine stopped. He jumped off because he was afraid tbe engine would turn over and kill him.\\nOn cross-examination this witness was asked if he saw a boy about fourteen years old on tbe track. He answered that he did not. Asked if they were in the habit of running through the country and approaching crossings on curves without slackening speed, he answered that they observed all road crossings and expected to stop if they got any warning of danger. Asked if they run across crossings at the same rate of speed as on other parts of the track, in the absence of any orders to the contrary or any knowledge of danger, he answered that they have no orders to stop at country roads and that the practice is not to do so. From where he was standing in the cab, on tbe inside and going toward tbe crossing, be could see an obstruction twelve or fourteen feet high about one hundred yards off. \\\"When he saw this obstruction, he did not know whether it was on the track or not; could not tell until he got up to it, could not tell whether it was on or off the track. Asked within what distance he could tell something was on the track, he said not until he got within 150 or 200 feet, when he found out what it was; that he could tell that there was an obstruction on the track about 300 feet or two telegraph poles.\\nThe fireman on the train with plaintiff at the time of the accident testified that he first became aware that there was any danger on the track when they were about 100 yards off, when he gave the engineer the stop signal, meaning \\u201cdanger ahead.\\u201d Asked if he had seen anybody coming toward the train before that, he answered that he had not, until about the time he saw the obstruction; could see the obstruction when he was about 300 feet from it and gave the danger signal as quick as he saw it, when the engineer immediately put on the emergency brakes and reversed the engine. There was nothing else the engineer could have done to stop the train.\\nOn cross-examination this witness testified that it took them about five minutes to run from Eureka to this crossing on that date; it was about three-quarters of a mile between the two. At the time they struck the obstruction they were running about twenty-five miles an hour.\\nThe station agent of the Frisco at Eureka testified that he was off duty on the evening of this accident; that trains average about one every forty-five minutes along the Frisco in the evening but freight trains are liable to come at any time either way. He saw this train on which plaintiff was engineer; was in his front yard a half a block north and a block west of the Frisco station at Eureka. He first heard them whistle for town and then for the order board and as the whistle was not answered, they whistled again \\u2022and he then saw the operator on the platform with his order hook, handing np orders to the conductor; it was what was called a No. 19 order, delivered to the train by means of a hook as the train passes, without the necessity of the train stopping. The train slowed up some for the orders; was then going about ten or twelve miles an hour. About the time the engine passed the depot he saw a little boy coming west up the track toward the station, down about the east switch, which was something like 600 feet east of the station; he had his hat off and was waving it above his head. The train was then moving ten or twelve miles an hour when he saw the boy waving his hat; thought it would have been possible for a man to have hallooed to the engineer or to have spoken to him so he could have heard with the train going at that rate of speed.\\nMr. North, who was driving the water wagon before referred, to, called as a witness by plaintiff, testified that he was there with his wagon and was part of the crew with Mr. Johnson in moving the traction engine and separator. He testified that the traction engine was the largest one he had ever seen in the country; that when they broke down Johnson and Cihak \\u201cwere going forward and backward quite a while;\\u201d could not tell exactly what they were doing; \\u201cit seemed like they were trying to do something but they made no headway at anything.\\u201d Witness\\u2019s team was some distance further up the hill from the railroad and while he was there he heard a rig coming down from the Missouri Pacific crossing. It was driven by a Mr. Nollman and he went up and .stopped him. Then a Mr. Peppers came with his team and he stopped him; Peppers went down to where the separator was across the track. Hp to that time no one had called upon witness to assist in trying to move the separator from the track but \\u201cquite a while after\\u201d the separator had stuck on the track they called on him for the log chain which he carried in his wagon. The chain was about twenty feet long. He heard the train on the Frisco whistle for Eureka. Up to that time there had not much of anything been done that he could see except to put the chain around the axle. When witness heard the train whistle for Eureka he hallooed to them that they had better get that off. They called to him to bring down the team; he unhitched and drove the team down but told Mr. Cihak that the best thing they could do was get the chain off as quick as they could as they were going to be knocked off. That was after he heard the train whistle for Eureka; had not been called on before this by anyone there to assist although he was there ready to assist; all he was called on to do was to get out the chain and to unhitch the team. \\u201cThe Frisco train whistled just after they asked for the chain.\\u201d Asked on cross-examination if Mr. Cihak or Mr. Johnson had not called to him to' bring the chain right after they stopped or as soon as the separator stopped on the track, he said \\u201cNo, sir;\\u201d could not tell what they had been doing before that as he did not see them doing anything.\\nMr. Peppers, another witness for plaintiff, testified that he had been there on the day of the accident and was near the Missouri Pacific railroad, going down towards the Frisco crossing (the tracks being about 1400 feet apart). When he first saw the traction engine and separator he was about fifty feet south of the bridge on the Missouri Pacific crossing. They were just going on to the Frisco crossing and this witness drove on down toward it. He had a wagon and a team and drove down from the Missouri Pacific tracks at a common walk. When he got near the Frisco crossing he stopped his team and looked down to where Johnson and the other men were by the separator at the crossing. He saw Mr. North, Mr. Noilman, Mr. Cihak and two machine men there, six of them in all. This witness went on down to where the machine was. When he got there the two machine men and Mr. Cihak were there. Asked if he saw anyone start toward the town of Enreka at that time he said he had seen Mr. Cihak\\u2019s boy start; that after he (Peppers) was there a few minutes Mr. Cihak told this boy to go and see Snyder (the station agent) and tell him to flag the train \\u201cthat the separator was broke down on the crossing.\\u201d The boy started down the track toward Enreka. Witness heard the train whistle for Enreka. He had already gotten down to the separator before he heard that. He heard nothing said about the log chain being brought or the team brought to assist in pulling the separator across until after the train had whistled for Eureka, then Mr. Cihak asked for the log chain; told Mr. North to bring down the log chain. In answer to a question as to how long the engine and separator were on the track from the time he saw it pulled on until he saw the train coming, he answered that he should judge from twenty to twenty-five minutes. He testified that he could walk from the crossing to Enreka in nine minutes; that he had tried it; that he could drive there in an ordinary trot from the crossing to Enreka in about .five minutes; had done that. Pie did not at any time see any of the men about the separator afterwards send a flagman out at any time or hear anything said abont it.\\nA Mr. Brundege, examined on the part of plaintiff, testified that he was engaged in sawmilling and threshing wheat; knew the crossing where the accident occurred; had crossed it several times; had seen the traction engine and had seen the separator; was accustomed to moving traction engines and separators over the country and across railroad crossing in that vicinity from time to time and is familiar with the lay of the land at this particular crossing. Asked how many men it would have required to move this traction engine back from the position in which it was on the day of the accident, he answered that he should judge four or five men could have worked it off and pushed it down hill, possibly four, five or six, or about that number. If a log chain had been available he could have gotten it off by hitching to the engine and pulling it off, and he thought that could have been done in five, six or eight minutes, This witness stated that if he had been in charge of the separator at the time he could have gotten if off in from eight to ten minutes.\\nThis is a summary of a great mass of testimony, not very complete, but sufficient to give the general facts, and to show the evidence in the case as to the effort made to get the separator across or off of the track, as to the warning given, as to the time that the obstruction had been on the track, was conflicting. We have given the evidence of plaintiff, more fully than that of defendant, for at the close of that and again at the close of all the testimony the defendant interposed a demurrer to the evidence. The court refused each of these. The case was then submitted to the jury under instructions of the court and the jury returned a verdict in favor of plaintiff in the sum of $7500. Interposing a motion for new trial, which was overruled, plaintiff has duly perfected his appeal to this court.\", \"word_count\": \"9750\", \"char_count\": \"53593\", \"text\": \"REYNOLDS, P. J.\\n(after stating the facts). \\u2014 In their argument before us the learned counsel for appellant state that the only points they urge on this appeal are that the lower court committed error in overruling the demurrer to the evidence, asked by defendant at the close of plaintiff's ease and also in overruling that demurrer when it was again offered at the close of all the testimony.\\nIt is argued that these demurrers should have been sustained because, first, there was no evidence that defendant was guilty of any -negligence in the premises, and'secondly, plaintiff's own evidence shows he was guilty of contributory negligence in approaching a dangerous crossing which could not be seen by the trainmen until they were close upon it, at full speed and without having his train under control and also in jumping through the window of the cab while the train was going at a high rate of speed. Counsel for appellant further state that the court submitted the case to the jury on the theory that defendant was negligent in two particulars, namely, first, in not warning approaching trains of the obstruction, and secondly, in failing to remove the obstruction from the crossing. It may be said here that the assignment of negligence in going upon the track and in the manner in which defendant's employees approached the track with the traction engine and the separator is out of the case, there being no claim that there was any negligence connected with that. It seems hardly necessary to cite authority in support of the rule that, defendant, not standing on a demurrer to plaintiff's evidence in chief and then producing evidence, has waived the first demurrer. [See Frye v. St. Louis, I. M. & S. R. Co., 200 Mo. 377, 1. c. 381, 98 S. W. 566.] We concern ourselves then with the demurrer at the close of all the evidence.\\nIf we are to adopt the theory of the learned counsel for appellant, it would require us to hold as a matter of law, that after the employees of defendant found that the separator was blocked on the track and after they heard the approach of the train, they had used due diligence and taken proper and prompt steps to warn those in charge of the approaching train of the obstruction; that we should hold, as a matter of law, that defendant used due diligence in attempting to remove the obstruction from the crossing after the wheels of the separator had become blocked; that we should hold as a matter of law that plaintiff was guilty of contributory negligence in respect to those acts of negligence with which he is charged. ~W e cannot agree that under the evidence in this case these are matters of law.\\nWhat is negligence in a given case is a matter of law, but the determination of the facts constituting negligence or due diligence are for the jury. The second instruction given at the instance of defendant itself practically concedes this. That instruction tells the jury, \\\"that the only issues before you are whether or not the servants and agents of the defendant were negligent in failing to remove the separator from the railroad track before the collision occurred; and whether or not the said servants and agents exercised ordinary care to notify\\\" the station agent at Eureka and warn approaching trains of the obstruction on the track; and whether or not the plaintiff was guilty of negligence directly contributing to Ms injuries, either in failing to see and heed the signals given him and the obstruction on the crossing in time to have averted the collision or in running his train at a high rate of speed in approaching said crossing, or in jumping from the cab of the engine while the train was running at a high rate of speed, as the above issues are defined in other instructions.\\\" It may be said as to the definitions referred to as covered by other instructions, no complaint whatever is made of them and, as before said, the only error assigned here is in overruling the demurrer to the evidence. That the evidence is conflicting on the issue as to whether the employees of defendant, in the exercise of reasonable diligence, could have removed the obstruction in time to have cleared the track for trains passing over the road, and particularly before the train upon which plaintiff was the engineer could have reached that point, is beyond question. The credibility of the witnesses who gave this testimony, the weight to be given it, were for the jury.\\nSo too, with the evidence as to whether the employees and agents of defendant had exercised ordinary care to notify the station agent or warn approaching trains of the obstruction. The jury had the testimony as to what was done; they heard the positive testimony of plaintiff and his witnesses, that they received no notice whatever until within some three hundred feet of the obstruction and that the signals then given to them were of such a character that in railroad usage they understood them to be signals that the track was clear. Whether they were justified in so construing the attempt to signal them, was for the jury. While the testimony of the younger Cihak was that he had reached the train within a short time after it passed Eureka, and while there is testimony of one of the witnesses for plaintiff that he saw a boy up in that neighborhood, the testimony is equally positive on the part of plaintiff, the conductor, the fireman and the head brakeman, that they neither saw this boy at that place or at any place nor heard him hallooing to them or making any sign whatever. As to the testimony of Johnson and of the elder Cihak, of their advance down the track to warn the train, the time when they started to do this, the kind of signals they made, the means they employed to signal the train, these were all in evidence before the jury. It appears without question, from the testimony of these witnesses themselves, that when they had run but a short time and distance, the train was so close on to the obstruction that when they jumped out of the way of the approaching engine the train had not gone much over one hundred feet when plaintiff leaped from the cab, and that was but a short distance from the obstruction. Furthermore, the time when these two men and the boy had started up the track to give the warning, presented a conflict of testimony, the solution of which rested entirely with the jury. It was for the jury to determine whether proper precautions were taken to warn approaching trains. It is in evidence that about f orty-five regular trains passed there daily, and many freight trains. Cihak, at least, must have known this for he lived a very short distance from the crossing.\\nAs to the rate of speed of the train being excessive, under the facts and situation, to sustain the contention of the learned counsel for appellant, we would be obliged to hold as a mattr of law that that rate was excessive. It is to be remembered that in the case at bar, this occurred in the country at a road crossing and no ordinance, as in case of street crossings in cities, regulates the speed nor does any statute do so. Aside from the statutory or municipal regulation, no rate of speed at which a railroad train may be run is negligence per se. [Powell v. Missouri Pacific Ry. Co., 76 Mo. 80; Young v. Hannibal & St. Joseph Railroad Co., 79 Mo. 336, 1. c. 340.] As is said in the latter case by Mr. Commissioner Philips, \\\"What would be a negligent rate of speed under certain circumstances might be wholly blameless under others.\\\" Prom the testimony in this case and' especially aided by the plat in evidence and which is before us, while it appears that there is a sharp curve of the railroad track as the train goes east from Eureka and immediately before reaching this crossing, it appears that the Blakey road, as it is called, along which the traction engine and separator were being drawn, runs for 600 feet parallel with and to the south of the tracks of the railroad and after it crosses the tracks runs for a distance of about 1400 feet up an incline to where it crosses the Missouri Pacific tracks. It is evident that persons passing from the Cihak farm, where this machinery had been stored, to cross the road would have a fair view of the track as far up as Eureka, and that they had this view after they crossed the track is shown by the testimony of witnesses in this case who saw the smoke of the approaching en gine before it reached Eureka. So that so far as the public was concerned this was not a dangerous crossing as there was full opportunity for those traveling along the road to have warning of the approach of any train from Eureka. After the railroad tracks cross the public road they are straight for apparently over a mile and to the crossing of the Meramec river and beyond there to a station called Crescent, which appears to be about three miles east of Eureka. There was no reason therefore to call for a slackening of speed on the part of the engineer of the train, unless we are to hold as a matter of law that speed is to be slackened at all curves and crossings; he had sounded his whistle after leaving Eureka 600 yards east of the crossing, and long enough ahead to have cleared the track of pedestrians or of ordinary travel over it. Nor can it be contended that he had anything to look for but a clear track at this point, certainly had no occasion to anticipate a permanent obstruction of this kind on it.\\nWhether the speed was excessive was a question of fact. There are cases where, in the absence of a statute or ordinance upon the subject, considered in connection with other circumstances, the court may be justified in declaring as a matter of law that the company was guilty of negligence in running its train at an excessive and dangerous rate of speed under the circumstances of that particular case. Mr. Elliott in his work on Railroads, 3 Elliott, Railroads (2 Ed.), sec. 1160, says: \\\"In the absence of any statute or ordinance upon the subject, no rate of speed is negligence per se. . . . Ordinarily, however, the question is one of fact for the jury.\\\" See, also, Chicago & Northwestern Railway Co. v. Netolicky, 14 U. S. C. C. A. 615 (67 Fed. Rep. 665), a decision by the United States Circuit Court of Appeals for the Eighth Circuit, the opinion written by Judge Thayer, concurred in by Judges Caldwell and Sanborn. So we have found it treated by all the cases in onr state which, have been referred to even by industrious counsel for appellant. We are unable to say, as claimed by 'those counsel here we must, that the rate of speed was, under the circumstances of this case, so excessive as to render its maintenance at that place negligence per se and to declare as a matter of law in this case that such was so clearly a matter of negligence on the part of this plaintiff, the engineer, that we should declare that he cannot recover. The burden of proving that this speed rate, pleaded by defendant as a contributing act of negligence, was excessive, was upon defendant. It is uncontradicted that the speed was the usual one for that train at that point; it was called for by the train schedule, apparently; the engineer was running under orders and with notice that the track was clear. He had sounded his whistle; he had no reason to apprehend the presence of such an obstruction.\\nThe remaining ground for claiming that \\u2022 a verdict should have been directed for defendant and its demurrer sustained, is the act of plaintiff in jumping out of the window of his cab- when he saw the imminence of colliding with the obstruction across the track. This is claimed as a contributing cause, the burden of sustaining which was also on defendant. To sustain the contention of counsel for appellant, we would have to declare as a matter of law that this act of plaintiff was also negligence per se. This we cannot do. Our Supreme Court in Kleiber v. The People's Ry. Co., 107 Mo. 240, 17 S. W. 946, has settled this proposition in our state. It is there said (1. c. 247): \\\"It is as well settled as any other principle of the law of negligence that, if one, by the negligence of another, has been placed in a situation of apparent imminent peril, he is not required, in attempting to escape therefrom, to use the judgment and discretion that is required of him when not dominated by terror of impending danger; and if, without having time to deliberate, and acting upon the instinct of self-preservation, and as a prudent person might be expected to act in the circumstances, he is injured by adopting a dangerous alternative, he may still recover from the one by whose negligence he has been impelled to act. This is true, though no injury would have resulted had no attempt to escape been made.\\\" Citing many cases and quoting from others in support of this rule, Judge Macearlane concludes, at page 249: \\\"From these decisions the following rules, essential to liability may be deduced: First, the peril or alarm must have been caused by the negligence of the one against whom indemnity is sought; second, the apprehension of peril, from the standpoint of the injured person, must have been reasonable, and, third, the appearance of danger must have been imminent, leaving no time for deliberation. On the other hand the danger must be judged by the circumstances as they appear, and not bv the result.\\\" See, also, Root v. Kansas City Southern R. Co., 195 Mo. 348, 1. c. 356, 92 S. W. 621, and Chicago & Northwestern Ry. Co. v. Netolicky, supra in which passing on a motion for rehearing, Judge Thayer has said (1. c. 624): \\\"We are unwilling to declare, as a matter of law, that a person who is called .upon to act under such circumstances, and to act instantaneously, is guilty of negligence if he does not choose the safer course. In such a case the inference of contributory negligence, if it is a justifiable inference, should be drawn by the jury, rather than by tbe court.\\\" In'brief our Supreme Court as well as the United States Circuit Court of Appeals declined to say as a matter of law that choosing what appeared to him to be a means of safety in his fright and confusion and that means turning out to be disastrous to him, the plaintiff can be held guilty of contributory negligence. So it has been held and the rule applied in Feddeck v. St. Louis Car Co., 125 Mo. App. 24 102 S. W. 675, by this court, and in Hull v. Thomson Transfer Co., 135 Mo. App. 119, 115 S. W. 1054, by the Kansas City Court of Appeals, it being held in the latter case (1. c. 123) that the question as to the act of the plaintiff under the circumstances and as to whether he acted as an ordinarily prudent person might be expected to act under similar circumstances was a question for the jury. \\\"We think these cases sufficient to warrant us in declining to hold as a matter of law that plaintiff contributed to his own hurt by jumping from his engine.\\nSummarizing our conclusions on the facts . and the law, we hold that there was evidence to support a verdict either way; ample evidence that would support a verdict for the plaintiff under proper instructions. The jury has found against the defendant; it was properly instructed; that finding has been affirmed by the learned trial judge. On careful consideration of all the testimony in the case and weighing the arguments and consulting the authorities of counsel for appellant, we can arrive at no conclusion but that the judgment of the circuit court should be and it is affirmed.\\nNortoni and Caulfield, JJ., concur.\"}"

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+"{\"id\": \"1783013\", \"name\": \"HENRI CHOUTEAU v. MISSOURI-LINCOLN TRUST COMPANY, Appellant\", \"name_abbreviation\": \"Chouteau v. Missouri-Lincoln Trust Co.\", \"decision_date\": \"1925-10-09\", \"docket_number\": \"\", \"first_page\": \"665\", \"last_page\": \"684\", \"citations\": \"310 Mo. 665\", \"volume\": \"310\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:22:44.525074+00:00\", \"provenance\": \"CAP\", \"judges\": \"Graves and Atwood, JJ., concur; Woodson, J., absent.\", \"parties\": \"HENRI CHOUTEAU v. MISSOURI-LINCOLN TRUST COMPANY, Appellant.\", \"head_matter\": \"HENRI CHOUTEAU v. MISSOURI-LINCOLN TRUST COMPANY, Appellant.\\nDivision One,\\nOctober 9, 1925.\\nGarter, Nortoni <& Jones for appellant.\\nH. Chouteau Dyer for respondent.\", \"word_count\": \"4726\", \"char_count\": \"27779\", \"text\": \"RAGLAND', P. J.\\nThis is an action for damages alleged to have resulted from the breach of a stipulation embraced within and forming a part of a contract of sale. With respect to the facts, which are comparatively simple, the evidence presents no essential conflict. In March, 1920, the defendant, Missouri-Lincoln Trust Company, was engaged in winding up its affairs. Among other assets it owned 5,575 shares of the authorized and outstanding capital stock of the International Building Company, a corporation organized and existing under the laws of this .State. The sole asset of this corporation was a seventeen-story office building, known as the International Life Building, located at the southeast corner of Eighth and Chestnut streets in the city of St. Louis, and the leasehold upon which the building stood. The property was encumbered by a deed of trust or mortgage which secured a bonded indebtedness at that time of $268,000. W. Prank Carter was president of both the defendant corporation and the International Building Company. The board of directors of the latter were selected entirely from the directorate of the former.\\nIn February, 1920, Mr. Carter commissioned one Gregg to sell the International Life Building and leasehold. Pursuant to such authorization Gjregg opened negotiations with plaintiff. During the course of the negotiations he exhibited to plaintiff and gave him a copy of a written statement which had been prepared from the books of the International Building Company and which set forth in detail both the gross income the building was yielding and the costs of its maintenance and operation. In connection with the former the names of the tenants were set out; the rental each was paying:; and the date of the expiration of his lease. Having aroused plaintiff's interest in the matter of making the purchase Gregg introduced him to Carter, on March 12th or 13th. After an extended interview between them Carter dictated to his stenographer, and after it was transcribed plaintiff signed and 'delivered to Carter, the following document:\\n\\\"International Building Company,\\nSt. Louis, Mo.\\n\\\"Gentlemen:\\n\\\"Being desirous of acquiring the equity in the leasehold located at the southeast corner of 8th and Chestnut-streets, St. Louis, and the building erected thereon known as the International Life Building, I hereby make you the following proposition:\\n\\\"I will give you two -thousand dollars, check for which is herewith enclosed, for an option to buy either the equity in said leasehold for ninety-two thousand dollars or the entire stock of the International Building Company at that price, within thirty days from this date; and also to purchase seven thousand dollars of the International Building Company's bonds now owned by you, at the price of $95 and interest, and upon the following terms and conditions:.\\n\\\"You are to install at your own cost and expense two boilers heretofore contracted to be installed and you are to deliver to me either the stock above referred to or convey to me the leasehold free and clear of all indebtedness, except a mortgage securing a bond issue of which two hundred and sixty-eight thousand. dollars is now outstanding. Payments for the above to be made by me in the following manner:\\n<\\u00a3 Thirty thousand dollars in cash upon the delivery of the stock or conveyance of the leasehold, and the balance of sixty-six thousand, six hundred and fifty dollars, by a note for that amount payable on or before five years from date, with proper interest notes attached covering interest at the rate of six per cent per annum, secured by-a first deed of trust on five hundred eighty acres of land, more or less, situate in St. Louis County and known as St. Yrain Farm, which I represent to be worth at least one hundred and sixteen thousand dollars and which representation, if found to be excessive shall invalidate this option and the deposit of two thousand dollars shall be returned to me. In the event the value of the farm is acceptable to the International Building Company, and I do not carry out the terms of this option, then I am to forfeit the two thousand dollars deposited by me.\\n* ' This deal to be closed as of April 1st, 1920, and all taxes, insurance, interest, ground rent and rentals from building to be adjusted as of that date. All supplies and materials on hand and necessary in the operation of the building shall be conveyed under the terms of this option.\\n\\\"I understand that the Missouri-Lincoln Trust Company is the \\\"owner of fifty-five- hundred and seventy-five shares of the total outstanding issue of the stock of the International Building Company. I am to have the option to buy the fifty-five hundred and seventy-five shares owned by the Missouri-Lincoln Trust Company at the same ratable price per share, to-wit, fifteen dollars and sixty-five cents per share, under the same conditions as above set out, in which event the note above referred to shall be reduced in the sum of -six thousand six hundred and fifty-seven dollars.\\n\\\"Tours very truly, Henbi Chottteuuj.\\\"\\nIn the course of the interview at which the terms of the proposed sale were being considered and discussed and which was; concluded by the dictation and signing of the document above set out, Carter told plaintiff that for $92,000 he would either have the International Building Company convey to him the equity in the building and leasehold, or else have the defendant company transfer to him the entire issue of the capital stock of the building compaxiy \\u2014 whichever worked out the easiest. And plaintiff indicated that either method of making the traxxsfer of the title to the building and lease would be acceptable to him. Plaintiff took to the interview the copy .of the stat\\u00e9ment showing the condition of the building as to rentals and cost of operation which had been furnished him by Grregg, and in the course of the conversation, accordixxg to his testimony, he said to Carter: \\\"Will you see that xxo further leases are made?\\\" and Carter replied: \\\"I will see that no further leases are made.\\\" With respect to the same matter Carter testified: \\\"Mr. Chouteau said to me: 'Well, you won't pxxt any more leases on there without my knowledge,' and . . . I said to him: ' There will be no leases executed on that property that won't be submitted to you first. ' ' '\\nPlaintiff's written offer was submitted to the board of directors of the defendant company at a special meeting held1 on March 16, 1920. The board's action with respect thereto is shown by the following excerpts from the minutes of the meeting:\\n\\\"Upoxi xnotion duly made and seconded the officers of this company were authorized to sell 5,575 shares of stock of the International Biuildingl Company now owned by this company oxi the terms contained in the letter of Henri Chouteau, dated March 15,1920', copy of which is as follows. \\u2014 provided the officers of this. Company ascertain that the value of the land referred to- is at least $100,000. 00.\\n\\\"Upon motion duly made and seconded' it was recommended to the directors of the International Building Company that they sell the leasehold on which the International Life Building is located, at the Southeast corner of Eighth & Chestnut Streets, St. Louis, Mo., on the terms named in the letter of Henri Chouteau above referred to-,' and on the same conditions.\\\"\\nOn Sunday, March 21, 1920, Carter accompanied by two experts on real estate value went to the St. Vrain farm and viewed it for the purpose of making an appraisal. That night plaintiff called Carter over the telephone to ascertain what conclusion the latter had reached as to the value of the land. The substance of the conversation that ensued as testified to by plaintiff was as follows:\\n\\\"Their appraisal was a, trifle less than mine, and I called' him up-, I think that Sunday night, and asked him about it and he said he didn't think that was quite enough to put up, and I suggested; I could raise a little more- money, and he said, Well, they would thresh that out and fix that up, and I mentioned about the leases again at that time, but being* as he was president of the company, and after him telling me once that he wouldn't make any more leases I thought that settled the matter.\\n\\\"I called up Mr. Carter and asked him, how things were progressing, and he said, 'Not so well,' or words to that effect. I said, 'Well, we wtf.ll take care of any little difference.' I said 'Be sure, no leases are made,' and that is when he kind of got a little short, as if I was questioning his word.\\n\\\"Q. What did he say? A. He said 'No.' \\\"\\nWith reference to the conversation over the telephone and the- condition in which it left the negotiations, Carter testified:\\n' ' Mr. Gregg called me up that Sunday evening. I was leaving for Denver. I think perhaps Mr. Chouteau had previously called me up; I am not certain of that. I know Mr. Gregg called me up and asked about the deal, and I told him the deal couldn't go through; that I didn't find the value in the farm that justified a loan of the size' that the proposition contemplated, and that our board of directors, in my judgment, wouldn't accept it, and either Chouteau or Gregg asked me what they could say or do, and I told them I was going to Denver that night, and that 'there is nothing can be done until there is a different proposition made.' . . .\\n\\\"Q. And then was there anything else transpired between you and Mr. Chouteau on that occasion? A. Chouteau said naturally, 'Can't I submit another proposition?' and I said then, 'I will call a meeting of the board,' and I called a meeting for April 2nd, and Mr. Chouteau and Gregg were present at that meeting and they submitted the proposition which is a matter of record.\\n\\\"I told1 him (Chouteau) the deal couldn't go through in that shape .\\n\\\"When he called me up that Sunday evening, he or Gregg, I told him I was leaving for Denver that night and would be back Tuesday or Friday of that week. When I returned the matter stood as we had left it, and we took it up where we had left, off and I called a meeting of the board at which he made this verbal proposition.\\n\\\"Q. You didn't say anything to him on the evening of this Shnday when he called you up, and you informed him of your conclusions as to the value of the farm over the telephone, about returning; to him the check? A. No, sir; no mention was made of it.\\n\\\"Q. And on your return the negotiations were continued, and you continued to hold the $2,000, or the check? A. Yes, sir.\\n\\\"Q. And in your resolution, or the statement of the terms which were put in motion by Mr. Waldheim and duly second and carried by the directors of the Missouri-Lincoln Trust Company, it is recited as follows: 'In payment of the obligation above assumed, said Chouteau, having already made payment of $2,000 as earnest money, agrees upon the conclusion of this contract to make a cash payment of $30,000.' That was the $2,000 that was deposited as earnest money payment to bind the bargain? A. Tes, sir.\\\"\\nThere was no' denial by Carter that in the telephone conversation just referred to he renewed his assurance to plaintiff that m> new leases would be made.\\nUpon Carter's return from Denver on March 26th or 27th the negotiations between him and plaintiff were immediately resumed, with the result that an agreement was speedily reached. The agreement so concluded was not reduced to writing, but the following was dictated by Carter at a meeting of the defendant's board of directors held April 2nd, in plaintiff's presence and subsequently incorporated in the minutes of the meeting:\\n\\\"First. Said Chouteau agrees to pay ninety-two thousand dollars for all of the stock of the said Building Company, being 6,000 shares of the par value of $50 each; said price being $15.33 per share. It being understood that of said 6,000 shares the Missouri-Lincoln Trust Company owns 5575 shares and will endeavor to purchase from the owners the remaining 425 shares, but in the event they cannot purchase all of the 425 shares, there is to be returned to said Chouteau $15.33 for each share outstanding and unpurchased under this agreement, on the 1st day of June, 1920.\\n\\\"Second. Said Chouteau agrees to purchase from the Missouri-Lincoln Trust Company bonds of the International Building Company having a face value of $7,000 and to pay therefor 951 cents on the dollar plus the interest accrued up to the 1st day of April,1920.\\n\\\"Third. In payment of the obligation above assumed said Chouteau, having already made a payment of $2,000 as earnest money, agrees upon the conclusion of this contract to make a cash payment of $30,000, and to give his note dated April 1, 1920, for $10,000' due September first, 1920, secured by bonds of the International .Building Company having a face value of $7,000, and further secured by Chicago & Western Indiana First Collateral Gold Trust notes in the amount of $5,000; and a further note dated April 1, 1920', in the amount of $56,650; due on or before sixty days from date, secured by 5575 shares of the capital stools of the said International Building Company. Both of the notes above mentioned are to draw interest at the rate of six per cent per annum from date until paid. . . .\\n\\\" Sixth. Upon the consummation of this contract possession of the International Life Building is to be turned over to said Chouteau according to the terms of his proposition dated March 15, 1920, and thereafter all adjustments of interest, and rents received and taxes and other obligations incurred on account of the operation of the said building;, are to be made as of April 1, 1920.\\\"\\nPending the negotiations just detailed the vice-president of the International Building Company, without the knowledge or consent of either plaintiff or Carter, made two new leases. By one he leased to the National Lead Company a large amount of office space (more than one entire floor) in the International Life Building for a term of two years, beginning June 1, 1920; by the other he leased to the U'Arcy Advertising Company five rooms for a term of four years and nine months to commence May 1, 1920i Plaintiff did not learn of the making of these leases until after the sale of the stock had been consummated and possession of the building had been delivered to him.\\nPlaintiff's evidence tended to show that at the time he was negotiating for the purchase of the International Life Building the demand for office space in the city of St. Louis was increasing and rents were accordingly advancing; and further, that the rents reserved in the leases to the National Lead Company and the B'Arcy Advertising Company were considerably less than the reasonable rental value at that time of the space leased under them. Plaintiff testified that he would not have bought the' building if he had known that these leases had been made; that in consummating the purchase of the shares of stock through which the ownership of the building was acquired he relied upon the assurance given him that no new leases would be made without his approval. In this connection it should be said that the written statement given plaintiff by Gregg* showed that the net income of the building, derived solely from rents, would not yield a return of one per cent on an investment of $92,000.\\nThe petition was in two counts. Under the first a recovery of the damages alleged to have resulted from the leasing -to the National Lead Company was sought; under the second the damages accruing from the giving of the lease to the D'Arcy Advertising Company. As to the substance of the -petition it is sufficient to say that plaintiff's instruction presently to be noted was well within its allegations. The answer was a general denial.\\nThe instruction just referred to, as applicable to the first count, was as follows:\\n\\\"The court instructs the jury that if you find from the evidence that at or about the 13th day of March, 1920, the plaintiff and the defendant were negotiating for the purchase by the plaintiff and the sale by the defendant of the stock owned by the defendant in the International Building Company, and that the defendant exhibited to the plaintiff a memorandum or statement showing the existing tenancies and leases and expirations thereof of said building, and if you further find from the evidence that the plaintiff, with knowledge of such tenancies, leases and expirations, made a proposal to the defendant to purchase said stock, and that defendant agreed to consider said proposal; and if you further find that the defendant, by its president, promised and agreed that, pending negotiations for the purchase and sale of said stock no new leases would be made of the space in the building owned by said building company without the approval of plaintiff, and that thereupon and in reliance upon said promise and agreement, if you find that one was made by defendant, the plaintiff came to an understanding witli the defendant as to the purchase of said shares of stock and actually purchased and paid for the same; and if you further find that a lease was made for space in said building by the International Building Company to the National Lead Company while said negotiations were pending, without the approval or consent of the plaintiff; and if you further find that thereby plaintiff sustained loss and damage, your verdict will be for the plaintiff and against the defendant on the first count of the petition.\\n* '. . . If you find . . . for the plaintiff on the first count you will assess his damages in such sum as you may find from the evidence he, as a stockholder of the International Building Company, has sustained by reason of the making of the lease with the National Lead Company mentioned in the first count of the petition; and, in determining said loss you should deduct the total amount of the rental required to be paid by said lease under its terms from the total amount of what you may find from the evidence was the reasonable rental value of the space covered by said lease for the period of said lease, and allow the plaintiff such proportion ol said sum, if any, as the amount of stock delivered to him by the Missouri-Lineoln Trust Company under the agreement mentioned in the evidence bears to the total amount of the outstanding stock of the International Building Company.\\\"\\nThe second count was dealt with in precisely the same way. A verdict was returned for plaintiff in which his damages under the first count were assessed at $'7980.80, and under the second count at $1908.23. From the judgment rendered thereon defendant prosecutes this appeal.\\nThe principal grounds upon which appellant asks a reversal of the judgment are these: (1) oral evidence was admitted to contradict, vary and add to the terms of a written contract; (2) the proof failed to establish the contract pleaded, in this, that the evidence showed that the negotiations in which the promise not to execute new leases was made failed and were wholly abandoned, and that in the negotiations subsequently entered upon which resulted in a contract of sale no such promise was made; (3) the undertaking on the part of defendant to prevent the International Building Company from making new leases was ultra vires; and (4) plaintiff's instruction on the measure of damages was erroneous.\\nI. All of the evidence in regard to the stipulation that no new leases would be made with respect to the International Life Building pending the negotiations for the sale was objected to by defendant on the ground that it could serve no purpose except that of adding to or varying the terms of a written contract.\\nA most cursory view of the evidence, however, discloses that no written contract was ever entered into between plaintiff and defendant. Following an interview with defendant's president, who was also president of the International Building Company, plaintiff addressed to the latter corporation a written offer to purchase all of its capital stock, or its building and leasehold. To this offer the International Building Company made no response. Neither was it accepted by the defendant to whom it was not addressed. On its being- brought to the attention of the latter's board of directors, they merely adopted a resolution authorizing the defendant's officers to sell the stock it owned in the International Building Company \\\"on the terms contained in the letter of Henri Chouteau,\\\" provided they found that the land named therein as security for the deferred payment was of a certain value. When the contract for the purchase and sale of the stock was finally concluded between plaintiff and defendant it was not reduced to writing by the parties. It is true that certain of its terms were dictated to a stenographer in plaintiff's presence by defendant's president at a meeting of its board of directors. From this faot an inference could properly be drawn that plaintiff acquiesced in the terms stated, but no presumption would arise therefrom that those terms constituted the whole of the contract. Presumably they were stated for purposes of the corporation's records; but in any event there was nothing in the situation to indicate that the parties were intending thereby to commit to writing all the terms of their agreement.\\nII. There never was but one contract entered into between plaintiff and defendant, and that contract was never modified. As already pointed out plaintiff's written offer was never accepted and it became a mere incident in the progress of the negotiations which culminated in a contract. But the question raised under this head is: What were the negotiations which led to the making of the contract? Appellant's contention is that the negotiations which began on March 13th were definitely terminated on Sunday night, March 21st, when Carter told plaintiff that the St. Yrain farm was not of sufficient value to carry a loan of $66,000', and consequently that the negotiations had upon Carter's return from Denver were entirely distinct and independent of any that had theretofore taken place between the parties. The importance of this contention rests on the fact that the matter of making new leases was not mentioned between plaintiff and Carter after the latter's return from Denver.\\nIt is unnecessary to repeat the evidence with reference to the state of the negotiations at the conclusion of the conversation between Carter and plaintiff on the Sunday night just before Carter left for Denver. It is sufficient to say that a jury would be fully warranted in finding from it that all the terms of a contract for the purchase and sale of the stock of the International Building Company had been agreed upon except the one relating to the security to be furnished by the vendee for the deferred payment; and that both Carter and plaiji tiff hung up the receivers of their telephones with the understanding that that matter would remain in abeyance until Carter's return from Denver when it would be \\\"taken up and threshed out,\\\" and in the meantime no new leases would be made of any space in the Interna,tional Life Building. And if so, the contract finally concluded grew out of negotiations which were commenced on March 12th or 13th and which were merely suspended during Carter's temporary absence. For upon Carter's return, to use his own language, \\\"we took it up' where we had left off.\\\" As a result, it was agreed that the part of the purchase price not to be paid in cash should be evidenced by two notes, one to be secured by the St. Vrain farm and the other by certain mortgage bonds, and thereupon the contract was completed.\\nEven if the neg'otations had after Carter's return from Denver be regarded as new and wholly independent of any other that had preceded them, still they were based on the antecedent stipulation made by Carter on the eve of his departure that no new leases would be made.\\nAccording'; to plaintiff's testimony he would not have bought the stock of the International Building Company if defendant had not promised that no new leases of space in the International Life Building would be made pending the negotiations. The sale finally affected was a sale of personal property. The stipulation that no new leases would be made was in the nature of an express warranty. It was not necessary that it should have been made simultaneously with the conclusion of the bargain. \\\"If in fact the various negotations, and acts' in completion of the contract constitute but one transaction, a warranty given during the progress thereof will be valid, though some time elapsed between the warranty and the actual completion of the sale.\\\" [35 Cyc. 373 and cases cited in note 47.]\\nIn view of the foregoing we conclude that there was ample evidence upon which to submit to the jury the question of whether defendant's promise to make no new leases was a part of the contract finally effected, and consequently that the trial court properly denied defendant's request for a directed verdict.\\nIII. The contention that the agreement that no new leases would be made by the International Building Company was ulta vires the defendant corporation has been elaborately briefed and argued. Such defense, however, to have been available to defendant must have been pleaded. As that was not done we cannot consider it. [Hanlon Millinery Co. v. Trust Co., 251 Mo. 569; 5 Enc. Pl. & Pr. 96.]\\nIY. It is said that the loss, if any, resulting from the leases given to the National Lead Company and the D'Arcy Advertising Company was sustained by the International Building Company and is not therefore recoverable by the plaintiff who is but a stockholder in that corporation. This view is. based on a misconception of the essential nature of the transaction had between plaintiff and defendant. The loss accruing to plaintiff was as vendee of the corporate stock and resulted from a breach of warranty on the part of defendant as vendor. The International Building Company was not a party to that contract, either directly or indirectly, and could not therefore suffer injury in a. legal sense from its breach.\\nFurther complaint is made that the damages assessed in accordance with plaintiff's instructions were necessarily speculative and conjectural. The instructions directed the jury to assess the damages at the difference between the rents provided for in the leases negotiated and the reasonable rental value of the premises. That such is the proper measure of damages in cases of this character is scarcely open' to question. [Hughes v. Hood, 50 Mo. 350; Ordelheide v. Traube, 183 Mo. App. 363.] No question is raised as to the competency of the evidence which was offered to establish reasonable rental values.\\nIt is finally urged that the trial court committed error in refusing instructions offered by the defendant. The record does not afford a sufficient basis for'the consideration of this assignment. Under the heading, \\\"Defendant's Refused Instructions,\\\" follow friearly eight pages' of printed matter in successive paragraphs but otherwise without subdivision or separation as to subject-matter. The paragraphs are not numbered. We are unable to tell from the record whether the whole was offered as one instruction, or whether there were separate offers of different parts of it. There are certain paragraphs which, if they had been offered as single instructions, should have been given, but we cannot assume they were so offered; nor can we convict the trial court of error in not separating the good from the bad.\\nAs the record discloses no reversible errors the judgment of the trial court is affirmed.\\nGraves and Atwood, JJ., concur; Woodson, J., absent.\"}"

mo/1798947.json

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+"{\"id\": \"1798947\", \"name\": \"CARTHAGE STONE COMPANY, a Corporation, Respondent, v. ALBERT GERST, Administrator of the Estate of CLARA PICKEL, Deceased, Garnishee of CORNELIUS H. PICKEL and CHRISTIAN KAECHLE and Estate of CLARA PICKEL, Deceased, Appellants\", \"name_abbreviation\": \"Carthage Stone Co. v. Gerst\", \"decision_date\": \"1920-06-17\", \"docket_number\": \"\", \"first_page\": \"486\", \"last_page\": \"491\", \"citations\": \"204 Mo. App. 486\", \"volume\": \"204\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"St. Louis Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T22:20:59.837985+00:00\", \"provenance\": \"CAP\", \"judges\": \"Reynolds, P. J., and Allen, J., concur.\", \"parties\": \"CARTHAGE STONE COMPANY, a Corporation, Respondent, v. ALBERT GERST, Administrator of the Estate of CLARA PICKEL, Deceased, Garnishee of CORNELIUS H. PICKEL and CHRISTIAN KAECHLE and Estate of CLARA PICKEL, Deceased, Appellants.\", \"head_matter\": \"CARTHAGE STONE COMPANY, a Corporation, Respondent, v. ALBERT GERST, Administrator of the Estate of CLARA PICKEL, Deceased, Garnishee of CORNELIUS H. PICKEL and CHRISTIAN KAECHLE and Estate of CLARA PICKEL, Deceased, Appellants.\\nSt. Louis Court of Appeals.\\nOpinion Filed June 17, 1920.\\nEXEMPTIONS: Insane Husband: ]Wife Froper Party to Claim Exemptions Allowed Husband as Head of Family: Interplea. Where the wife of a defendant in a garnishment proceeding filed a so-called \\u201cinterplea\\u201d after judgment, which contained an averment that long before the institution of the above entitled garnishment proceeding said defendant had been placed in an insane asylum for the care, custody and treatment of the insane, an,d his liberty of action taken from him, and it further appears therein that he was not, however, duly adjudged insane and a guardian appointed for him until after the fund paid into court hy the garnishee had been paid plaintiff, and until after the sheriff had in point of fact made sale of said defendant\\u2019s interest in the real-estate, a demurrer to the so-called \\u201cinterplea\\u201d was properly sustained, as under such state of facts the wife of said defendant, by virtue of section 2185, Revised Statutes of Missouri, 1909, became the proper party to claim, select and hold the exemptions allowed said defendant under the statutes as head of a family, and the procedure' attempted by the so-called \\u201cinterplea\\u201d was unauthorized.\\nAppeal from the Circuit Court of the City of St. Louis.\\u2014 , Eon. Thomas C. Eennings., Judge.\\nAffirmed.\\nJulian Laughlin for appellant.\\nCarter, Collins & Jones and C. Edmunds Kimball Jr., for respondent.\\n(1) The garnishment proceeding under the statute (Section 2413, R. S. 1900, et seq.) is legal and not equitable in its nature, and the court has no jurisdiction to determine any matter or any right of the parties involved in the proceeding other than the ownership of the fund garnished. Chapman v. Taney, 172 Mo.. App. 132, 145-146, and cases cited; Lackland v. Garesche, 56 Mo. 267, and cases cited. (2) When the court has determined to whom the fund in the hands of the garnishee belongs and has made an,order carrying that determination into effect, its jurisdiction is at an end, save to enforce the order. Idem. (3) The jurisdiction of the circuit court having ended, it' could not entertain interpleader\\u2019s affidavit for appeal, and this court, therefore, is without jurisdiction. Idem. (4) The order of the circuit court of February 9, 1915, in the garnishment- proceedings to pay over the money is- final and conclusive, -and no appeal having been taken by any party to the proceeding within time, there is nothing! before this court to review. City of St. Louis v. Boyce, 130 Mo. 572. (5) It was the duty of the Sheriff! to notify Cornelius H. Pickel of his right to claim his exemptions, if he had any, and failure to give such notice renders the Sheriff liable on his official bond. R. S. 1909, sec. 2184; State to the Use of v. Harrington, 33 Mo. App. 476.; State to the Use of v. Bierwirth, 47 Mo. App. 551; State ex re\\u00ed. v. Dickmann, 124 Mo. App. 653.\", \"word_count\": \"1604\", \"char_count\": \"9392\", \"text\": \"BECKER, J.\\nOn January 14, 1915, a writ of fieri facias was issued by the circuit court of St. Louis, Missouri, in the case of Carthage Stone Company,' a. corporation, plaintiff, v, Cornelius H. Pickel and Christian Kaechle, defendants, and on January 30,1915', the sheriff of the city of St. Louis made his return, that he had executed said writ by levying upon and seizing all the right, title and interest of defendants Cornelius H. Pickel and Christian Kaechle in certain real estate in the city of St. Louis, and that, by order and direction of the attorney for plaintiff, he further executed said writ on the 14th day of January, 1915', by declaring, in writing, to Albert Gerst, administrator of the estate of Clara Pickel, deceased, that he attached in his hands all debts due and owing from him to said defendants, Cornelius H. Pickel and Christian Kaechle, and all goods and moneys, etc., of said defendants, and summoning him, in writing, as garnishee, and that he further executed the writ by) summoning Albert Gerst, administrator of the estate of Clara Pickel, deceased, as garnishee, by declaring to him, in writing, that he summoned him to appear before the circuit court at the return term of said court on the first Monday of the following P'ebruary, to answer such interrogatories as might be exhibited and propounded to him by the plaintiff, and by delivering to said Albert Gerst a notice of such garnishment.\\nPlaintiff's interrogatories were filed February 3, 1915, and on February 6, 1915, tbe garnishee filed bis answer, stating be bad the sum of $519.80 belonging to defendant Cornelius H. Piekel. On February 8,1915, tbe court ordered tbe garnisbee to pay tbe sum in bis bands into court, and on tbe same day tbe sum of $519.80 was paid into court by said garnisbee. On February 9, 1915, tbe court ordered tbe clerk to pay to tbe plaintiff or its attorney of record tbe fund of $519.80, less $15, for an allowance to tbe garnisbee for answering, and the- costsi of the proceeding, and on February 15, 1915, tbe attorneys for the plaintiff, were paid $499.95, and tbe clerk was paid $19.85 for costs.\\nOn the 8th day of March, 1915 (and more than four days after tbe judgment ordering the clerk to pay the money as aforesaid), Ella Piekel, guardian and curatrix of Cornelius H. Piekel, filed a so-called \\\"interplea\\\" in tbe circuit court, which recites that on February 16, 1915 (the day following tbe day of payment of tbe money by tbe clerk of the court to plaintiff's attorneys), Cornelius! H. Piekel had been duly declared non compos mentis, and that tbe interpleader Ella Piekel was duly appointed as guardian and euratrix of tbe said Cornelius H. Piekel; that she gave bond and duly qualified as such, and states that at tbe time the garnishment proceeding was instituted said Piekel was a citizen and resident of tbe State of Missouri and a married man and the bead of a family and as such entitled to certain exemptions under tbe laws of Missouri, and that by reason of tbe fact that be was of unsound mind at tbe date the garnishment proceeding was instituted and continuously ever since, though be was not declared of unsound mind until the 16th day of February, 1915, that said Pickel's exemption claim \\\"had not been and could not be made by him.\\\" Said \\\"interplea\\\" concludes with tbe following prayer:\\n\\\"Wherefore interpleader prays that this Honorable Court will make an order on said Collins, Barker & Britton, Attorney for said Carthage Stone Com- pa.ny, requiring said Carthage Stone Company or said Collins, Barker & Britton to pay into court for the use of interpleader as guardian and curatrix of said Cornelius II. Pickel the sum of $300 out of the amounts realized by plaintiff from the sale of such real estate and from the amount received from such garnishee as the legal exemptions of- said Cornelius H. Pickel according to the statutes in such cases made and provided and for such other and further orders and relief as to the court may seem meet and proper in the premises together -with the costs of this proceeding.\\\"\\nA motion to strike this so-called'interplea from the files was filed by the plaintiff on March 231, 1915, which motion the court, on April 26, 1915, overruled. An answer was then ,led by plaintiff and later withdrawn by leave of court on February 16, 1917, and on the same day a demurrer to. the ' 'interplea\\\" was \\u00a1filled by plaintiff below, respondent here, Which demurrer was submitted to and sustained by the court on May 14, 1917.\\nAfter a motion to set aside the order sustaining plaintiff's demurrer had been overruled and an affidavit for appeal filed, and withdrawn by the \\\"interpleader,\\\" judgment was entered for plaintiff on its demurrer, on October 23, 1917.\\nFinally, on November 30, 1917, affidavit for appeal was filed by the \\\"interpleader,\\\" and an appeal granted the \\\"interpleader\\\" to this court.\\nThe action of the learned trial court in sustaining plaintiff's demurrer to the so-called \\\"interplea\\\" must be sustained. Said \\\"interplea\\\" contains an averment that, \\\"long before the institution of 'the- above entitled garnishment proceeding said Pickel had been placed in an asylum for the care, custody and treatment of the insane and his liberty of action taken from him, ' ' and it further appears therein that said Pickel was not however duly adjudged insane and a guardian appointed for him until \\u2022after the fund paid into court by the garnishee had been paid plaintiff and until after the sheriff had in point pf fact made sale of said Pickel '\\u00a7 interest in the real estate. In this state of fact's it follows, nnder the authority of First National Bank of Monett v. Morkamp, 130 Mo. App. 118, 108 S. W. 1085 (see also Martin v. Barnett, 158 Mo. App. 375, 138 S. W. 538) that Ella Pickel, wife of said Cornelius II. Pickel, by virtue of section 2185 Revised Statutes of Missouri, 1909, became the proper party to claim, select and hold the exemptions allowed Pickel under the statutes as the head of a family. But said Ella Pickel failed to malee any claim for exemptions as provided by our statutes. We know of no authority and have been cited none, authorizing the procedure attempted by the so-called ' ' interplea. ' '\\nIt follows that the judgment is affirmed.\\nReynolds, P. J., and Allen, J., concur.\"}"

mo/1811506.json

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+"{\"id\": \"1811506\", \"name\": \"Alma Herbert, Appellant, v. Wyman C. Herbert, Respondent\", \"name_abbreviation\": \"Herbert v. Herbert\", \"decision_date\": \"1927-12-06\", \"docket_number\": \"\", \"first_page\": \"201\", \"last_page\": \"204\", \"citations\": \"221 Mo. App. 201\", \"volume\": \"221\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"St. Louis Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T21:23:00.371420+00:00\", \"provenance\": \"CAP\", \"judges\": \"Becker and Nipper, JJ., concur.\", \"parties\": \"Alma Herbert, Appellant, v. Wyman C. Herbert, Respondent.\", \"head_matter\": \"Alma Herbert, Appellant, v. Wyman C. Herbert, Respondent.\\nSt. Louis Court of Appeals.\\nOpinion filed December 6, 1927.\\nJeffries, Simpson & Plummer for appellant.\\nRobert J. Krafky, Henry H. Spencer and Gilbert L. Whitley for respondent.\\nCorpus Juris-Cyc. References: Divorce, 19CJ, p. 173, n. 25 New; p. 186, n. 21; p. 247, n. 19.\", \"word_count\": \"1321\", \"char_count\": \"7514\", \"text\": \"DAUES, P. J.\\nThis is an appeal from a decree of the circuit court of the city of St. Louis overruling a motion of appellant for an allowance of alimony. It appears that appellant, to whom we will refer as plaintiff, sued defendant for divorce on April 3, 1924. In her petition she did not ask for alimony but prayed for absolute divorce, concluding the petition however with the usual prayer that the court make such-\\\"further order and judgment .from time to time touching the premises as to the court may seem meet and just. ' ' A decree of absolute divorce was granted plaintiff- at the October term, 1924, of said court. Nothing further was done until March 6, 1925, during the February term of said court, when plaintiff filed her motion for alimony, in which she alleged that she had lost her business position and had been compelled to take a less remunerative employment, and that certain of her property had lost its value. Due notice of this motion was given to the- defendant, who failed to appear to answer same. The matter was then submitted to the court on plaintiff's evidence. The court took the matter under extended advisement and finally ruled that it had no jurisdiction to entertain a motion for alimony filed at a subsequent term where the petition neither prayed for nor the judgment in the divorce decree touched the issue of alimony. The correctness of that action is now challenged.\\nPlaintiff's counsel tabes the position that the question of alimoi^, though not prayed for or decreed in an original divorce case is always open for adjudication. Defendant's counsel insists that where an absolute decree of divorce is granted upon a petition which does not pray for alimony, and the decree granting plaintiff an absolute divorce which is wholly silent as to the question of alimony both as to immediate award or as to the retention of jurisdiction of the court over that question precludes the granting- of alimony on a motion filed long after the1 expiration of the term at which such decree of divorce was granted.\\n.In. appellant's brief this one point is made: That the circuit court granting a divorce retains jurisdiction for the purpose of awarding alimony to tlie innocent and injured wife during the joint life of the parties, and cites the following statutes and authorities: R. S. Mo. 1919, sec. 1806; R. S. Mo. 1919, sec. 1812; State ex rel. Shoemaker v. Hall, 257 S. W. 1047; Laumeier v. Laumeier, 271 S. W. 481; Cole v. Cole, 89 Mo. App. 228; Wald v. Wald, 168 Mo. App. 377, 151 S. W. 786; Brown v. Brown, 209 Mo. App. 416, 239 S. W. 1093; Francis v. Francis, 192 Mo. App. 710, 179 S. W. 975.\\nSection 1806, Revised Statutes Missouri, 1919, does provide that the court on application of either party may make such alteration from time to time as to allowance of alimony and maintenance as may be proper, but that statute has never been construed, as far as we can learn, to hold that such modification or readjudication as to allowance of alimony may be made in a case of this kind. The cases all deal with a situation either where the alimony was granted to a wife in the original d\\u00e9cree, or where the question of children was involved. The same situation is true with reference to the other section of the statutes above cited.\\nNow, a brief analysis of the cases submitted in appellant's brief: In State ex rel. Shoemaker v. Hall, supra, the court held that the lower court retained jurisdiction after divorce as to all questions involving the custody and support of children.\\nLaumeier v. Laumeier, supra, interprets sections 1806 and 1812, Revised Statutes 1919, to mean that the trial court after divorce .has jurisdiction to modify a divorce decree in respect to the maintenance of a child. Cole v. Cole, supra, is exactly similar to the Laumeier ease.\\nWald v. Wald, supra, first decides that the court may change its order regarding custody of children, and then holds that where there is a judgment for alimony in the original decree th\\u00e9 court retains jurisdiction to modify it from time to time.\\nIn Brown v. Brown, supra, there1 was a stipulation entered into between the parties as to alimony, and the court originally decreed the wife $75 a month as alimony in accordance with the stipulation. This court, through Judge Becker, held that such decree was open-to the court at a subsequent term for modification.\\nIn Francis v. Francis, supra, again it was held that alimony as awarded in an original decree is subject to modification subsequently. This case is overruled, in part, in Nelson v. Nelson, 221 S. W. 1066, not affecting this question however.\\nThese are all of the cases cited under \\\"Points and Authorities\\\" in appellant's brief, and we do not see that they throw any light on our question.\\nIn the instant case, the record shows that there were no children from this marriage; no alimony was asked and none was given or denied. While this question does not seem to be decided, so far as we can find in the Missouri decisions, the case of Robinson v. Robinson (Mo. Supp.), 186 S. W. 1032, does throw some light on the question. In that case there was a decree granting a divorce to the wife and also awarding her the custody of her son, but was silent as to what provision should be made for the child. The Supreme Court there held that since the decree provided for the custody of the child that the court could subsequently modify this decree and make provision for the support of the child from the husband to the wife.- In discussing that question, the Supreme Court said that an alteration of a decree can only be made with respect to something that was then in existence, and proceeded upon the theory that the custody of the child having been given the mother, that that could be altered so as to make proper provision for such care.\\nIn the instant ease all the issues that could have been raised under the pleadings were determined, and under the present state of the record is final. Other jurisdictions have passed squarely upon the proposition and held that no power exists in a case of this kind to open up the question of alimony subsequently where there was no such issue made or determined in the original decree. [See: Howell v. Howell, 37 Pac. 770; O'Brien v. O'Brien, 62 Pac. 598; Bacigalup v. Bacigalup, 238 Pac. 93; Kelly v. Kelly, 147 N. E. 659; Spain v. Spain, 158 N. W. 529.] We might cite more cases from other jurisdictions to like effect. Many of them have statutes almost identical with ours, and they all hold that where there was no alimony prayed for in the original proceedings and the matter of alimony was not touched upon in the decree, that then such question was terminated at the end of the term at which the decree was rendered and that the court afterwards has no jurisdiction to entertain the wife's motion for alimony.\\nWe conclude, therefore, that the lower court was correct in holding that it had no jurisdiction to make the order prayed for. The motion cannot be considered as an effective motion for new trial, nor as a petition for review independent of the theory above discussed. [State ex rel. Conant v. Trimble, 277 S. W. 916.] Judgment affirmed.\\nBecker and Nipper, JJ., concur.\"}"

mo/1832962.json

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+"{\"id\": \"1832962\", \"name\": \"Ex Parte Joe Arvin, Petitioner, v. James L. Williams, Sheriff of Jackson County, Missouri, Respondent\", \"name_abbreviation\": \"Arvin v. Williams\", \"decision_date\": \"1937-12-29\", \"docket_number\": \"\", \"first_page\": \"796\", \"last_page\": \"804\", \"citations\": \"232 Mo. App. 796\", \"volume\": \"232\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Kansas City Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:20:55.466199+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ex Parte Joe Arvin, Petitioner, v. James L. Williams, Sheriff of Jackson County, Missouri, Respondent.\", \"head_matter\": \"Ex Parte Joe Arvin, Petitioner, v. James L. Williams, Sheriff of Jackson County, Missouri, Respondent.\\n112 S. W. (2d) 113.\\nKansas City Court of Appeals.\\nDecember 29, 1937.\\nClif Langsdale and John M. Langsdale for petitioner.\\nW. W. Graves and Bussell Boyle for respondent.\", \"word_count\": \"3712\", \"char_count\": \"21405\", \"text\": \"REYNOLDS, J.\\nJoe Arvin filed his verified petition in the office of the clerk of the Kansas City Court of Appeals in vacation for a writ of habeas corpus, seeking to be discharged from imprisonment in the county jail of Jackson county, Missouri, and from the custody of the respondent J. L. Williams as sheriff of said county. The same was presented in vacation of the court to the writer, one of the judges of said court,, who granted the writ.\\nIn obedience to such writ, the respondent has made return to the same, which discloses that the petitioner is in: his custody and is being imprisoned by him in the county jail of Jackson county, Missouri, under a judgment and order of commitment thereunder made by the Circuit Court of Jackson County for contempt in refusing to answer certain, questions propounded to him by the grand jury of Jackson county, on December 17, 1937. A certified copy of the judgment and order of the court committing the petitioner to the custody of the respondent sheriff, together with a certified copy of the commitment thereunder, was attached to and made a part of the respondent's return.\\nThe order of commitment is as follows:\\n\\\"State of Missouri |\\n\\\"County of Jackson j\\nSS'\\n\\\"In th\\u00e9 Circuit Court of Jackson County, at Kansas City, Missouri. Division Number 9. Designated by tbe rules of the Circuit Court as Criminal Division A.\\n\\\"Be It Remembered, That heretofore, to-wit, on the 17th day of December, 1937, at the regular November Term, 1937, begun and held at the Court House, in Kansas City, County and State aforesaid, the following among other proceedings were had by said Court, to-wit :\\n\\\"Now on this day comes into Court the Grand Jury heretofore empannelled and sworn to-wit: Cass W. Browning, R. R. Choplin, Bryson Ayers, Louis Oppenstein, T. H. Mast\\u00edn, H. H. Halverson, Frank J. Horn, Leo V. Burnett, F. W. Pendleton, Bert Lyon, Taylor S. Abernathy and Thomas J. Leary, accompanied by Joe Arvin, a witness duly summoned by said Grand Jury, and reports to the Court in writing that they hav'e under consideration matters having to do with certain bombings of certain laundries in Kansas City, Jackson County, Missouri, and the fixing of certain laundry prices in connection with laundries, and that the said Joe Arvin was duly summoned as a witness to appear before said Grand Jury as required by the statutes of this State and that inquiry was made of him as follows and the following questions were propounded to the said, witness, all of which he had refused to answer: That the questions propounded and the answers of said Joe Arvin thereto were as follows:\\n\\\" 'Q. Did you have a minimum price list printed and circulated among laundry operators here in Kansas City which prices were to go into effect on September 13, 1937 ? A. I refuse to answer on the ground that it might incriminate me. I stand on my constitutional rights.\\n\\\" 'Q. Have you made attempts to regulate laundry prices among operators here in Kansas City? A. I refuse to answer on the ground that it might incriminate me.\\n\\\"' ' Q. Have you had any conferences with Arch Long of the Long-Hall Laundry relative to fixing laundry prices here in Kansas City? A. I refuse to answer on the ground that it might incriminate me.\\n\\\" 'Q. Have you ever had any conferences with James Johnston of the Ford-Ideal Laundry relative to the fixing* of laundry prices here in Kansas City ? A. I refuse to answer for the same reason as given to the other questions asked.\\n\\\" 'Q. Have you ever had any conferences with Elmo.Fischer of the Silver Laundry relative to the fixing of laundry prices here in Kansas City ? '\\n\\\"(The certified copy of the judgment and order of commitment, attached to the return and in evidence upon the hearing, shows that the petitioner also refused to answer .the last question above noted on the ground that the answer thereto would incriminate him.)\\n' ' Thereupon the Court in the presence of the Grand Jury and said witness, Joe Arvin, did determine that the said witness was bound to answer the questions aforesaid, because they were proper and would not'tend to incriminate him, and both the Grand Jury and the said witness, Joe Arvin, were informed of the Court's decision, and thereupon the said Grand Jury, with the said witness, retired and after-wards came into Court with said witness and informed the Court in writing that the said witness refused to answer said questions, and being interrogated by the Court in regard thereto the said witness informed the Court that he would not answer said questions in the presence of said Grand Jury, and thereupon the Court did order and adjudge that the said witness Joe Arvin was guilty of a contempt of this Court on account of his refusal to testify as aforesaid and does adjudge that he, the said Joe Arvin, be committed to- the jail in Jackson County, Missouri, for such contempt, as provided by the laws of the State of Missouri, and it is further ordered and adjudged by the Court that the clerk of this Court immediately issue and deliver a proper commitment' under this order directed to the sheriff of Jackson County, Missouri, commanding and requiring him to commit the said Joe Arvin to the jail of the County aforesaid and him there, safely keep until the said witness Joe Arvin answers the questions which he had heretofore contemptuously and contumaciously refused to answer and still refuses, or until he be otherwise discharged by due process of law. .\\n\\\"WHEREFORE it is ordered and adjudged by the Court that the said Joe Arvin be confined to the County Jail as aforesaid for refusing to- answer the questions asked of him by the Court and the Grand Jury as aforesaid and that the State of Missouri have and recover of the said defendant all costs herein and have there for execution.\\n\\\"It is further' ordered by the Court that the said defendant be remanded to the custody of the Sheriff of Jackson County, Missouri, the officer in charge of said jail therein to be confined as aforesaid. ' '\\nThe petitioner insists that he is entitled to be discharged from the custody of the respondent sheriff and from imprisonment tinder such judgment, order, and commitment, for the reason that they are .unlawful; that such judgment, order, and commitment violate the petitioner's rights as guaranteed by the Fifth Amendment to the Constitution of the United States and that they violate the petitioner's rights as guaranteed by \\u00e1rtiele 2, paragraph 23 of the Constitution of the State of Missouri, in that the petitioner is being deprived of his liberty without due process of law.\\nSection 23 of article 2 of the Constitution of this State provides: \\\"No person shall be compelled to testify against himself in a criminal cause; ' ' and the fifth amendment to the Constitution of the United States, among other things, says: \\\"Nor shall any person . . . be compelled in any criminal case to be a witness against himself.\\\" [Ex parte Gauss, 223 Mo. 277, 122 S. W. 741, l. c. 741.]\\nThe petitioner contends that, by virtue of the provisions of either of said Constitutions, he was not guilty of contempt of the Circuit Court of Jackson County when he refused to answer the questions propounded him by the grand jury, for the reason that his answers thereto would have incriminated him and that he was not required to answer the same but that he, as a witness, had immunity to refuse to answer the same without being in contempt and that such constitutional provisions in each instance afforded him protection in refusing to make answer to such questions upon such grounds and that the circuit court exceeded its jurisdiction in finding him guilty of contempt upon the record and in committing him therefor.\\nThe question thus raised by the petitioner is not a new one. It has been several times ruled by the Supreme Court of the United States, so far as concerns the provisions of the Constitution of the United States, and by the Supreme Court of this State and the other appellate courts thereof, so far as concerns the provisions of the State constitution, in harmony with the contentions of the petitioner. [Ex parte Gauss, supra; In the matter of the trial of Aaron Burr, 1 Burr's Trial 244, 25 Fed. Cas. 38, l. c. 40, No. 14692E; Counselman v. Hitchcock, 142 U. S. 547, 12 S. C. 195, 35 Law Ed. 1110; State v. Young, 119 Mo. 495, 24 S. W. 1038; State v. Simmons Hardware Co., 109 Mo. 118, 18 S. W. 1125, 15 L. R. A. 676; Ex parte Carter, 166 Mo. 604, l. c. 614, 66 S. W. 540, 57 L. R. A. 654; Ex parte January, 295 Mo. 653, 246 S. \\\"W. 241, and other cases which it is unnecessary to cite.] It is sufficient to say that the opinion by Chief Justice Marshall in the Burr Case has been generally, if not universally, followed in all jurisdictions, including the State of Missouri.\\nIn the case of State v. Young, supra, it is held that the immunity afforded a witness by the constitution is broad enough to protect him against self-in crimination before any tribunal in any proceeding; that the constitution means more than the protection of the accused on his final trial when his rights are scrupulously guarded by the courts and that it clearly protects him from being forced to testify against himself before the coroner, the grand jury, or the justice in his preliminary examination.\\nIt is said by the Supreme Court in Ex parte Carter, supra, l. c. 614 of 166 Mo.:\\n\\\"It is a reasonable construction of the constitutional provision, that the witness is protected from being compelled to disclose the circumstances of his offense, or the sources from which, or the means by which, evidence of its commission, or of his connection with it, may be obtained, or made effectual for his conviction, without using his answer as direct admissions against him. ' '\\nThe doctrine of the Young and the .Carter cases was approved by Judge Gantt in Ex parte Gauss, supra.\\nIn the Burr Case, Chief Justice Marshall said:\\n\\\"If the question be of such description that .an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say, upon his oath, that his answer would incriminate himself, the court can demand no other testimony of the fact.\\u2014According to their statement (the counsel for the United States), a witness can never refuse to answer any question, unless that answer, unconnected with other testimony, would be sufficient to convict him of crime. This would be rendering the rule almost perfectly worthless. Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to.furnish any one of them against himself. It is certainly not only a possible, but a probable, case that a witness, by disclosing a single fact, may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing; .but all other facts without it would be insufficient. While that remains concealed within his own bosom, he is safe; but draw it from thence, and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself would most obviously be infringed, by compelling a witness to disclose a fact of this description. What testimony may be possessed, or is attainable, against any. individual, the .court may never know. It would seem, then, that the court ought never to compel a witness to give an answer, which; would disclose a fact that would form a necessary and essential part' of a crime, which is punishable by the laws. \\\"\\nThe return recites that the grand jury was investigating matters having to do with the bombing of certain. laundries in Kansas City and the fixing of certain laundry prices in connection with such laundries, but the witness did not limit his answers to any. particular offense or offenses but stated that to answer the questions would incriminate him. : '\\nThe meaning of this constitutional provision has time and again been held not to be merely a provision that a person shall not- be compelled in a then-existing case against himself but- that he shall not be compelled, when acting as \\u00e1 witness in any investigation, to give testimony to- show that he himself has committed a crime.\\nThe Supreme Court of this State has, in the Gauss case and other eases, approved the doctrine announced by Chief Justice Marshall, that, if the question be such that the answer thereto may or may not incriminate the witness, it must be left with himself, who alone can tell what it would be, to answer- the question and, if in such case he says upon his oath that his answer would incriminate himself, the court can demand no other testimony of the fact and has held that such rule thus announced and approved is entirely consistent with the doctrine generally held that, when the court can say as a matter of law that it is impossible that a witness would incriminate himself by answering a question one way or another, then the court can require an answer. [Ex parte Gauss, supra.] Ex parte Holliway, 272 Mo. 108, 199 S. W. 412, was a case where the Supreme Court held that, if it could be said by the court as a matter of law that the- answer would \\u2022 not incriminate the witness, the court could require an answer and that, in default of making such answer, the witness.'could be adjudged in contempt and committed therefor. Such is the law in Missouri. [Ex parte Gauss, supra.]\\nWe think that the questions propounded in this case are not such questions as the court might' say as a matter of law the answers thereto would not' incriminate the witness b.ut are -questions such as the witness had the right to decline to answer if, in his opinion, such answers' would incriminate- hini. The questions were direct touching.his participation in and connection with the particular offenses which were under investigation. To have answered the same would'have been to furnish a link or links in the chain of -testimony for his..own indictment by the grand jury for such offenses-and for his own conviction of such offenses when - charged therewith. To hold that he must have explained all of the other testimony in the case which would be sufficient to\\\"-convict him by answering the questions asked him would fender the rule entirely worthless. .-[Ex parte-Gauss, supra.] ' - - \\u2022\\nIn the Gauss ease, the'court quoted approvingly from People v. Mather (N. Y.), 4 Wend. 229; l. c. 252, 21. Am. Dec. 122, as follows:\\n\\\"When the disclosures he may make can be used against him to prosecute him for a- criminal offense or to charge him' with penalties or forfeitures,-'he may stop answering before he arrives at the question, the answer- of which may- show practically his moral turpitude. The, witness knows what the court'does not know, and what he cannot communicate without being a self-accuser, and is the judge of the effect of his answer, and if it proves a link in the-chain of testimony, which is sufficient to convict him, he is protected by: law from answering the question. If there be a series of questions, the answer to all of which- -would establish his criminality,- the party' cannot pick out a particular- one, and say; if that be put, -the answer will not criminate him. If it is one step having a tendency to criminate him, he. is not compelled to'answer.\\\"\\n. The constitutional provisions seem to be all effective for the full pro tection of a witness from answering any question propounded where, in answering the same, he would incriminate himself.\\nTaking the facts of this case, upon the record, we say, as was said by Judge Gantt in Ex parte Gauss, supra, that, in our opinion\\u2014the petitioner herein having testified that he could not answer the questions asked him by the grand jury (on account of the refusal to answer which he stands committed) without incriminating himself and it not being entirely plain that his answers might not lead to a prosecution of himself so that this court might be able to say as a matter of law that it would not lead to his prosecution\\u2014the circuit court erred in committing the petitioner for contempt in refusing to answer the questions asked him and that, in doing so, it exceeded its jurisdiction.\\nIt cannot be said as a matter of law by the court that the petitioner's answers to such questions, if required to answer them, would not have incriminated him or in some way have furnished a link in the chain of facts required to be shown to establish his connection therewith or his connection with some other criminal offense.\\nWe are not bound in this proceeding by the judgment of the circuit court to the effect that the petitioner was bound to answer the questions propounded to him because they were proper and did not tend to incriminate him nor by its judgment in declaring that the petitioner was guilty of contempt' for refusing to answer such questions nor by its judgment ordering that the petitioner be committed on account thereof. The question of the jurisdiction of the circuit court to render such findings and judgments and make such orders and to issue such commitment upon the record before it, may be inquired into by us, even to the extent of ascertaining the sufficiency of the facts before 'that court to justify its findings and judgment and to give it jurisdiction to make the same. [Ex parte Holliway, supra; Ex parte Creasy, 243 Mo. 679, 148 S. W. 914.]\\nWe find that the facts in the record, which are all embraced in.the return, were insufficient to confer jurisdiction upon the circuit court to make the findings, judgments, and orders made by it adjudging the petitioner guilty of contempt and to commit him on account \\u00f3f such contempt and that such court, in making such findings, judgments, and orders and in committing the petitioner upon the facts before it in the record, exceeded its jurisdiction.\\nThe questions themselves, set out in the return, show upon their face that they seek out the personal connection of the petitioner with and his participation in the unlawful matters -and transactions which the grand jury at the time had under investigation; and it is not clear that, if compelled to answer the same, his answers would not identify him or lead to his identification as an unlawful participant in unlawful matters and unlawful transactions: and to require him to answer them is in direct conflict with the fundamental laws relied upon by the petitioner.\\nIt is suggested that the petitioner was properly required by the circuit court to answer the questions propounded to him in that he had immunity from prosecution by reason of the provisions of section 8713, article 1, chapter 47, Revised Statutes of 1929. Clearly, such section has no application here. This is not in any sense a proceeding brought to enforce the provisions of article 1, above cited. Such section, by its express terms, applies only to proceedings brought to enforce the provisions of such article.\\nIt has not been our purpose to declare any new law. We have done well if we have but followed the road blazed out for us by the courts of last resort in both State and nation and have declared the law as it has been written by such courts.\\nIt is suggested by counsel for the respondent that, if the law be declared as heretofore, the grand jury cannot pursue its investigations into bombings and price fixings. Such may or may not be true; but doubtless other witnesses can be found who are not involved in a criminal' way therein who might furnish evidence, direct or indirect, of bombings and the perpetrators thereof and of conspiracies to fix prices and the conspirators connected therewith.\\nHowever, whether there be or not, constitutional provisions such as those involved here cannot be frittered away at pleasure or as a matter -of mere convenience and expediency for the moment. If to be frittered away in this case, then they must necessarily be frittered away in every case.\\nA- like suggestion was made in State v. Simmons Hardware Company, supra; and Judge Barclay of the Supreme Court in\\\" answer thereto said (l. c. 129 of 109 Mo.):\\n\\\"It is one of the most solemn and imperative obligations devolved upon the courts to assert when needful the constitutional rights of the. citizen, and we do not hesitate to discharge that duty when the occasion requires it. \\\"\\nHowever desirable the ends to be arrived at by the grand jury in its investigations, the means employed by it in subpoenaing the petitioner to come before it as a witness and the court in requiring him to answer the questions propounded over his objections that the answers thereto would incriminate him come plainly in conflict with the fundamental laws of both the State and the federal governments. The latter are the supreme law and must be observed and followed.\\nWe are of the opinion that the petitioner, upon the facts, is entitled to his discharge under the writ; and it is so ordered that he be discharged.\"}"

mo/1900760.json

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+"{\"id\": \"1900760\", \"name\": \"State of Missouri at the Relation of The Nashville, Chattanooga & St. Louis Railway, a Corporation, Relator, v. Robert W. Hall and Frank Landwehr, Judges of the Circuit Court of the City of St. Louis\", \"name_abbreviation\": \"State ex rel. Nashville, Chattanooga & St. Louis Railway v. Hall\", \"decision_date\": \"1935-11-25\", \"docket_number\": \"\", \"first_page\": \"1229\", \"last_page\": \"1234\", \"citations\": \"337 Mo. 1229\", \"volume\": \"337\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T19:37:01.726189+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"State of Missouri at the Relation of The Nashville, Chattanooga & St. Louis Railway, a Corporation, Relator, v. Robert W. Hall and Frank Landwehr, Judges of the Circuit Court of the City of St. Louis.\", \"head_matter\": \"State of Missouri at the Relation of The Nashville, Chattanooga & St. Louis Railway, a Corporation, Relator, v. Robert W. Hall and Frank Landwehr, Judges of the Circuit Court of the City of St. Louis.\\n88 S. W. (2d) 342.\\nCourt en Banc,\\nNovember 25, 1935.\\nBarker, Durham Drury and David J. Tompkins for Nashville, Chattanooga & St. Louis Railway Company.\", \"word_count\": \"1561\", \"char_count\": \"8962\", \"text\": \"LEEDY, J.\\nProhibition to restrain respondent judges from entertaining further jurisdiction in an action brought in the Circuit Court of the City of St. Louis by one John W. Cannon, a resident of Tennessee, as plaintiff, and against relator as defendant, wherein plaintiff seeks to recover damages for personal injuries alleged to have been sustained while a passenger on one of relator's trains in the State of Tennessee. Relator here, by motion to quash the sheriff's return (appearing specially and for the limited purpose thereof), challenged the jurisdiction of the Circuit Court of the City of St. Louis over its person, and upon that motion being overruled, applied to this court for a writ of prohibition. Our preliminary rule issued, to which respondents made return, admitting, either expressly or by failure to deny, all the facts pleaded in relator's petition. The return also sets up a memorandum made and filed in said cause by one of the respondents, Judge Hall, setting forth his reasons for overruling the pleading challenging respondents' jurisdiction. Upon the filing of such return, relator filed a motion for judgment on the pleadings. The facts are not in dispute, and the issue is one of law. We have not been favored with a brief on behalf of respondents.\\nUnder the pleadings, it stands admitted that relator is a Tennessee railroad corporation, and that its tracks and lines of railway are located in the states of Tennessee, Kentucky, Alabama and Georgia, and its railway system is operated wholly within those states, in which it engages in the transportation of freight and passengers in interstate commerce. No part of its railway runs into, through or traverses any part of the State of Missouri; it does not operate any engines, tracks or cars in the State of Missouri; it has never been admitted to do business in Missouri, nor has it consented fo be sued therein, nor has it ever done any business in the State of Missouri, other than soliciting freight and passenger traffic for transportation in interstate commerce over its lines in other states, and for that limited purpose maintains an office in St. Louis. At the time in controversy, one J. V. McCarty, an agent of relator, was in charge of said office.\\nSummons was issued in said cause, to which the sheriff of the city of St. Louis made return (omitting signatures) as follows:\\n' ' Served this writ in the City of St. Louis, Missouri, on the within, named defendant, the Nashville, Chattanooga & St. Louis Railway (a corporation), this 18 day of Mar., 1933, by delivering a copy of the writ and petition as furnished by the Clerk to J. Y. McCarty, Geni. Agt. of the said defendant corporation, he being in said defendant's usual business office and in charge thereof. The president or other chief officer of said defendant could not be found in the City of St. Louis at the time of service.\\\" .\\nSection 728, Revised Statutes 1929 (Sec. 728, Mo. Stat. Ann., p. 947), specifying the manner and conditions under which personal service of summons may be obtained upon a foreign corporation; provides: \\\"Where the defendant is a corporation . organized under the laws of any other state . . and having an office and doing business in this state,\\\" a summons shall be executed \\\"by delivering a copy of the writ and petition to any officer or agent | of such corporation or company in charge .of any office or place of business . . . and when had in conformity with this subdivision, shall- be deemed personal service against such corporation and authorize the rendition,of a general judgment against it.\\\"\\nRelator relies on and invokes here, as it did in the court below, Section 8, Article I of the Constitution of the 'United States, and Section 1 of the Fourteenth Amendment, as defeating the- jurisdiction of the circuit court, and also attempts to,raise the constitutionality of Section 728, supra, because violative of the same provisions. The latter question may be brushed aside as not necessary .to a decision of the-case. The real, and what amounts to the sole question, in this case grows out of respondents' contention with respect to the return of the sheriff. Their averments in that connection being:\\n\\\"Respondents further state that said return of the Sheriff is regular oh its .face and sufficient in all things, and that by virtue of said return these relators have acquired and are entitled to retain jurisdiction of said cause and proceed with the same to a trial and final adjudication.\\\"\\n\\u2022 The memorandum referred to shows that the judge, in overruling relator's amended motion to quash, did so \\\"without prejudice,\\\" and on the theory that a \\\"motion to quash certainly cannot reach a return which is regular on its -face,\\\" and so remitted relator to its remedy of coupling its plea to the jurisdiction in an answer on the merits of the case, the approved practice. [Newcomb v. Railroad, 182 Mo. 687, 81 S. W. 1069, and cases cited.] In view of the admitted facts touching relator's status as a foreign corporation, not licensed to do, and not doing, business in this State, as more particularly outlined above, we deem it unnecessary to examine into the question of the asserted conclusiveness of the sheriff's return. It is clear it cannot stand in the light of such admitted facts.\\nThe case at bar comes squarely within the rule announced in State ex rel. v. Rutledge, 331 Mo. 1015, 56 S. W. (2d) 28, wherein, under a return in terms identically like the one now before us, it was said-: \\\"Thus a foreign corporation becomes amendable to personal service only if it is doing business within this State and the validity of the service under which the circuit court claims to have acquired jurisdiction in this attachment suit depends upon whether, as a matter of fact, the railways company was doing business within this State in such a manner and to such an extent as to warrant the inference that through its agents it was present within this State and subject to the service of process here. [Green v. Chicago, Burlington & Quincy Ry. Co., 205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916.] The question whether the railways company was doing business within this State is 'not one of local law or of statutory construction,' but is 'one of due process of law, under the -Constitution of the United States.' [Hall v. Wilder Mfg. Co., 316 Mo. 812, 293 S. W. 760, 762, 52 A. L. R. 723.] The. following was quoted with approval in the Hall case, supra: ' \\\"Whether such a corporation (a foreign corporation) is doing business in the State is a question of jurisdiction, and in its last analysis it is one of due process of law, under the Constitution of the United States.\\\" [North Wisconsin Cattle Co. v. Oregon Short Line Co., 105 Minn. 198, 205, 117 N. W. l. c. 392.] \\\"But it is only when the foreign corporation is doing business in the State that service may be made upon its agent, and in connection with questions of jurisdiction it is held that what is 'doing business' is a question of due process of law under the Federal Constitution. [Grant v. Cananea, etc., Co., 117 App. Div. 576, 102 N. Y. Supp. 642; Conley v. Mathiesen Alkali Works, 190 U. S. 406, 23 Sup. Ct. 728, 47 L. Ed. 1113.\\\" Wold v. J. B. Colt Co., 102 Minn. 386, 114 N. W. 243.] ' \\\"\\nFurthermore, we are bound by the rulings of the Supreme Court of the United States, which deny the right to apply a local rule of practice so as to defeat the plain assertion of a Federal right, such as in the case at bar, which is secured under the Constitution. Illustrative of that doctrine is Davis, Director General, v. Wechsler, 263 U. S. 22, which was a proceeding by certiorari to the Kansas City Court of Appeals, wherein it was held: \\\"The state courts may deal with that (a rule of practice) as they think proper in local matters but they cannot treat it as defeating a plain assertion of Federal right. . If the Constitution and laws of the United States are to be enforced, this court cannot accept as final the decision of the State tribunal as to what are the facts alleged to give rise or to bar the assertion of it even upon local grounds. [Cresill v. Grand Lodge Knights of Pythias, 225 U. S. 246.] This is familiar as to the sub stantive law and for tbe same reasons it is necessary to see that local practice shall not be allowed to put unreasonable obstacles in the way. See American Ry. Express Co. v. Levee, decided this day, ante, 19.\\\" [See, also, Michigan Central Railroad Co. v. Mix, 278 U. S. 492, 73 L. Ed. 470.]\\nIt follows that onr preliminary rule is prohibition should be made absolute, and it is so ordered.\\nAll concur.\"}"

mo/1903873.json

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+"{\"id\": \"1903873\", \"name\": \"Charline Rider, Appellant, v. Vance Julian, Chairman, Missouri State Board of Mediation, Jefferson City, Missouri, and Kansas City Public Service Company, a Corporation, Kansas City, Missouri, Respondents\", \"name_abbreviation\": \"Rider v. Julian\", \"decision_date\": \"1955-09-12\", \"docket_number\": \"No. 43330\", \"first_page\": \"313\", \"last_page\": \"340\", \"citations\": \"365 Mo. 313\", \"volume\": \"365\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:39:40.921254+00:00\", \"provenance\": \"CAP\", \"judges\": \"Leedy, G.J., Dalton, Hollingsworth, Hyde, Westhues, JJ.,' and Stone, Special Judge, concur; Hager, J., hot sitting.\", \"parties\": \"Charline Rider, Appellant, v. Vance Julian, Chairman, Missouri State Board of Mediation, Jefferson City, Missouri, and Kansas City Public Service Company, a Corporation, Kansas City, Missouri, Respondents,\", \"head_matter\": \"Charline Rider, Appellant, v. Vance Julian, Chairman, Missouri State Board of Mediation, Jefferson City, Missouri, and Kansas City Public Service Company, a Corporation, Kansas City, Missouri, Respondents,\\nNo. 43330\\n282 S. W. (2d) 484.\\nCourt en Banc,\\nSeptember 12, 1955.\\nRehearing Denied, October 10, 1955.\\nThomas C. Swanson, James Baleo, Boy P. Swanson, George S. Gangwere and Bichard G. Poland for appellant.\\nJohn M. Dalton, Attorney General, and Robert F. Sevier, Assistant Attorney General, for respondent Vance Julian.\\nCharles L. Carr for respondent Kansas City Public Service Commission.\\nSwofforcl, Schroeder & Shankland, Homer A. Cope, Sprinkle, Knowles <& Garter, Rogers, Field <& Gentry and O\\u2019Siollivan & Killiger amici curiae.\\nRoy P. Swanson and George H. Gangwere amici curiae; Richard G. Poland of counsel. . ...\\nPowell C. Qroner, pro se; John H. Hendren of counsel.\\nItalics in quotations at this point and elsewhere in this opinion have been supplied unless otherwise indicated.\", \"word_count\": \"6996\", \"char_count\": \"41971\", \"text\": \"STORCKMAN, J.\\n[487] This is a suit to recover damages in the sum of $15,000 for personal injuries alleged to have been sustained by the plaintiff on November 14, 1950 in Kansas City due to the negligence of the operator of a motorbus upon which she was a fare-paying passenger. The trial court dismissed the plaintiff's action and she appealed. The amount involved vests this court with jurisdiction. Section 3, Article Y, Constitution of Missouri 1945.\\nIn 1949, as it had been for years, the Kansas City Public Service Company was engaged in the operation of the mass transit system in Kansas City and adjoining portions of the State of Kansas. Its collective bargaining agreement with its operating employees was .scheduled to expire on December 31, 1949. The company and union representatives negotiated but failed to agree upon a new contract. Shortly before the contract termination date the State Board of Mediation took jurisdiction and the company and its employees continued to operate the transit system. A public hearing panel was established, hearings were had, and on March 25, 1950, the panel handed down its report which, among other things, recommended a reduction of five cents per hour in the employees' rate of pay. The transit company notified the union representing the employees that if a settlement could not be reached by May 1st the company proposed to put into effect the wage reduction as recommended by the hearing panel. An agreement was not reached and a work stoppage was definitely threatened. On April 29, 1950, the day before the proposed wage reduction was to become effective, the governor of Missouri issued a proclamation and two executive orders invoking the provisions of what is commonly known as the King-Thompson Act. This act, Laws of Mo. 1947, Yol. 1, p. 358, is chapter 295 of the Revised Statutes of Missouri 1949, \\u00a7 295.010 through 295.210, Y.A.M.S. By his Executive Order No. II the governor authorized and directed Yance Julian, Chairman of the State Board of Mediation, to take possession of all or such parts of the plants, offices, facilities and equipment of the Kansas City Public Service Company as may be necessary to insure the operation of the utility in the public interest. Mr. Julian acted pursuant to the appointment, and the transit system continued to operate. The governor 's proclamation and excutive orders remained in effect until December 11, 1950, at which time the transit company and its employees agreed upon a new contract. It is during this period that the plaintiff claims to have been injured.\\nThe plaintiff's suit was directed against \\\"Yance Julian, Chairman, Missouri State Board of Mediation, Jefferson City, Missouri, and Kansas City Public Service Company, a Corporation, Kansas City, Missouri, Defendants.\\\" The defendant Yance Julian will herein sometimes be referred to as Julian and the defendant Kansas City Public Service Company as the company or the transit company. In the alternative, the plaintiff alleged either (1) that Julian was the operator and manager of the transit company on the date of the injury, or (2) [488] that Julian was not such manager or in control of the trans portation facilities but that the transit company \\\"was in sole and complete control and management of its facilities,\\\" or (3) that both Julian and the transit company \\\"were in control and operation of the defendant public service company's transportation facilities\\\"; and that she does not know which alternative is true.\\nThe transit company filed its separate answer denying liability because, among other reasons, the casualty occurred at a time when the governor of Missouri had taken \\\"possession of the plant, officers, equipment and facilities of this defendant for use and operation by the State of Missouri in the public interest\\\" under \\u00a7 19 of the King-Thompson Act, and that at the time of the casualty Julian, pursuant to the governor's orders, and not the transit company, was in full possession and control of transit company's property and was operating the public utility business, and that the operator of the motor-bus was not \\\"at said time and place employed by this defendant or acting for or on behalf of this defendant within any scope of employment of this defendant, or in any capacity for this defendant. ' '\\nDefendant Julian filed his separate motion to dismiss as to him. Among other things, he alleged that if he operated or possessed the property of the transit company he did so for the sole purpose of securing the continued operation of the property in the public interest, health and welfare pursuant to the proclamation and executive orders of the governor, and that for all other purposes at all times mentioned in plaintiff's petition, the transit company was operating streetcars and motorbusses in Kansas City for the transportation of persons for hire and was in sole and complete control and management of its facilities and business; and that the defendant transit company \\\"was the master of the operator of the motorbus mentioned in plaintiff's petition and was liable as such for any negligence, if any, as alleged in plaintiff's petition.\\\" Further, Julian alleged that if he did operate and manage the property he was acting on behalf of the State of Missouri which had not consented to be sued.\\nPursuant to the motion of defendant transit company there was a separate trial of the issues as to whether the transit company or Julian and the State of Missouri was operating the bus in question, and whether or not the operator and driver of said bus was the employee of the transit company or the employee of said Vance Julian and the State of Missouri. The hearing on the issues was without a jury and the trial court found that the motorbus involved in the accident was in the exclusive possession, control and operation of the State of Missouri acting by and through its state agent and representative, Vance Julian. The judgment was that both defendants, the transit company and Julian, be \\\"dismissed with prejudice.\\\"\\nThe primary question involved is whether the employer-employee relation existed between the motorbus driver and one or both of the defendants. Our first consideration is whether the legal status exists by operation of law, that is, by legislative fiat, and, if not, whether the relation was in fact created assuming the statute authorized it.\\nAuthority for the proclamation and executive orders of the governor must be found in V.A.M.S. \\u00a7 295.180-295.210, since the authority of the executive and his representatives' cannot exceed the power granted by the General Assembly. Section 295.180 provides in substance that if the effective operation of a public utility is threatened or interrupted by a lockout, strike or work stoppage, the governor is ' ' authorized to take immediate possession of the plant, equipment or facility for the use and operation by the State of Missouri in the public interest.\\\" The governor's power and authority may be exercised through such department or agency of the government as he may designate. The section specifically provides that the properties of the utility \\\"shall be returned to the owners thereof as soon as practicable after the settlement of said labor dispute, and it shall thereupon be the duty of such utility [489] to continue the operation of the plant facility, or equipment in accordance with its franchise and certificate of public convenience and necessity.\\\" Section 295.200 provides penalties for unlawful acts by persons, employees or representatives of the public utility designed to interfere with the operation of the utility and gives the courts power to enforce by injunction and other legal and equitable remedies any provision of the chapter or any rule or regulation prescribed by the governor. Section 295.210 contains clauses expressly preserving the constitutional privileges of an individual employee and safeguarding his right to quit his work.\\nThe proclamation of the governor and his executive orders must all be within the grant of authority from the General Assembly. Likewise, acts of any representative appointed by the governor must be within the authority granted him by the governor. Acts in excess of the grant of power and authority would be invalid. There is no contention that either the governor or his representative Julian exceeded their authority in what was done.\\nThe material evidence is largely documentary. The proclamation issued by the governor April 29, 1950, found that there was a threatened interruption of the operation of the Kansas City Public Service Company, a public utility, as a result of a labor dispute, and that the public interest, health and welfare were jeopardized thereby, and proclaimed that \\\"the exercise of the authority vested in me by Section 19 of an Act of the 64th General Assembly found in Laws of Missouri, 1947, Yol. 1, pages 359 to 366, both inclusive, is necessary to insure the operation in Missouri of the Kansas City Public Service Company a public utility. ' '\\nExecutive Order No. 1, signed by the governor on the same day, made certain recitals and concluded with the following order: \\\"I hereby take possession of the plants, equipment and all facilities of the Kansas City Public Service Company, located in the State of Missouri, for the use and operation by the State of Missouri in tbe public interest, effective at 11:00 P.M., Sunday, April 30, 1950.''\\nThe proclamation and Executive Order No. 1 had to do with taking possession of the utility property under the King-Thompson Act: Executive Order No. II, Julian's letter of April 29, 1950, and subsequent events had to do with the manner and method by which the utility was operated and the extent to which Julian used the powers granted to him.\\nThe governor's Executive Order No. II, also dated April 29, 1950, after certain recitals, stated:\\n\\\"(1) That Vance Julian, Chairman of the State Board of Mediation, is hereby authorized and directed to take possession of the plants, offices, facilities and equipment of every nature and description used in the operation of the business of the Kansas -City Public Service Company in the State of Missouri or such parts of each of said plants, offices, facilities and equipment to the extent that it may be necessary for the purpose of carrying out the provisions of this Order, which is to insure that the said utility above mentioned is effectively operated in the interest of the people of this state in order that they may have the benefit of necessary and essential public passenger transportation.\\n\\\"(2) That Vance Julian, Chairman of the State Board of Mediation, is further authorized and directed to take possession of any and all real and personal property or any other assets wherever the same may be situated ivliich are used or shall be necessary to be used in connection with the operation of such plants, offices, facilities and equipment and to operate and arrange for the operation of such plants, offices, facilities and equipment [490] in any manner necessary in order to maintain public passenger transportation for the people of the State of Missouri and in order that the public interest may not be interfered with.\\n\\\"(3) For the purpose of carrying out the processes of this Order, that Vance Julian, Chairman of the State Board of Mediation, is authorized to select and hire such employees and agents as may be necessary and suitable to carry out the same; to exercise any contractual or any other rights of the owners of said plants, offices, facilities and equipment; to do any and all other things that may be necessary or desirable for or incidental to the use and operation of said plants, offices, facilities and equipment in order to effectively operate the same in the public interest and to take any and all other steps that may be necessary to carry out the provisions of this Order.\\n\\\"(4) That Vance Julian, Chairman of the State Board of Mediation, shall operate the plants, offices, facilities and equipment mentioned herein under the terms and conditions of employment in effect at the time possession thereof is.seized by him, under the terms of this Order and he shall continue to operate the same until and unless otherwise directed by me.\\n\\\"(5) That Vance Julian, Chairman of the. State Board of Mediation, may permit, in his discretion and upon such terms and conditions as he deems advisable, the management of the aibove public utility to continue its managerial ftmctions to the extent consistent with the processes of this Order.\\n\\\"(6) All state agencies are directed to cooperate with Vance Julian, Chairman of the State Board of Mediation, to the fullest extent possible in carrying out the purposes of this Order.\\n\\\"(7) That Vance Julian, Chairman of the State Board of Mediation, is authorized and directed to maintain the customary procedure for the adjustment of workers' grievances. He shall recognize the right of the workers to continue their membership in any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, provided that such concerted activities do not interfere with the operation of public passenger transportation.\\n\\\" (8) All rules and regulations of the aforesaid utility governing the internal management and organization of the company shall remain in force and effect throughout the term of operation by the State of Missouri. ' '\\nPursuant to the proclamation and executive orders, defendant Julian, on April 29, 1950, transmitted to Powell C. Groner, president of Kansas City Public Service Company at Kansas City, a letter reading' as follows:\\n\\\"I hand you herewith the Proclamation of Governor Forrest Smith, dated April 29, 1950. I also hand you a copy of Executive Orders No. 1 and II relating to the same subject matter.\\n\\\"Governor Smith, by virtue of said orders will take possession of the plants, equipment and all facilities of the Kansas City Public Service Company, located in the State of Missouri, for the use and operation by the State of Missouri in the public interest, all to be effected as of 11 o'clock P.M. Sunday, April 30, 1950.\\n\\\"I have been directed in Executive Order No. II to take possession of the plants, offices, facilities and equipment of every nature and description, [491] both real and personal, used in the operation of the business of the Kansas City Public Service Company in the State of Missouri, or such parts as are necessary for the purpose of carrying out the provisions of the orders of Governor Smith. I am by this letter taking this formal step as of 11 o'clock P.M., Sunday, April 30, 1950. All of which is done to insure that the said utility above mentioned is effectively operated in the interest of the people of this state in order that they may have the benefit of necessary and essential public passenger transportation.\\n\\\"Paragraph 5 of Executive Order No. II gives me the power to continue the operation of the utility under the present management. This I propose to do. Therefore, by virtue of the power given to me by the above mentioned orders, Honorable Powell C. Groner is ordered and directed to operate and manage the utility to the extent consistent with the processes of the Governor's orders. He will have the full charge of said utility and all officers and employees will continue under the terms and conditions of employment at the time possession thereof is seized, to-wit 11:00 P.M., Sunday, April 30, 1950. All wage scales and working conditions will remain the same unless otherwise directed.\\n\\\"Paragraph 7 of Executive Order No. II will be in force and effect. The company and employees will operate under the terms of the 1949 labor agreement unless same has been amended by mutual agreement.\\n\\\"All rules and regulations of the aforesaid utility governing the internal management and organization of the company shall remain in force and effect throughout the term of operation by the State of Missouri. ' '\\nAdditional evidence with respect to the operation of the utility will be discussed in the course of the opinion.\\nThe two witnesses that testified, Mr. Groner and Mr. Julian, both drew conclusions both of law and fact during the course of their testimony. Self-serving statements were also made in documents and otherwise during the period of the state's seizure. For example, Mr. Groner on May 1, 1950, apparently on his own initiative and without consulting Julian, prepared and posted a bulletin in which it was stated: \\\"Kansas City Public Service Company is no longer engaged in the operation of the transit system, and same is being operated by the State of Missouri without liability or responsibility on the part of said company du/ring the period of State operation.\\\" The bulletin also stated that \\\"The officers, officials and employees of the company have become employees of ancl are working for the State of Missouri. ' ' Other such statements were made with respect to the liability for Workmen's Compensation payments and in presenting an application for an increase in fares before the Missouri Public Service Commission. These are typical of statements by transit company executives at various times during the period in question. There is no showing that the plaintiff is connected in any way with these statements, and objection was duly made at the trial. Such statements are obviously self-serving. They are not binding on the plaintiff and will not be considered of any evidentiary value in determining the issues in this cas\\u00e9. Wahl v. Cunningham, 332 Mo. 21, 56 S.W.2d 1052, 1059. Likewise, it binds no one that Julian considered the seizure to be a \\\"technical\\\" one. The statements of Mr. G-roner and Mr. Julian might be of some significance if offered in connection with a controversy between the state and the transit company, but they can have no possible competency or relevancy with respect to plaintiff's claim.\\nJulian was, at the time in question, the chairman of the State Board of Mediation duly appointed pursuant to \\u00a7 295.030. He was also serving as the agent or representative of the state through whom the governor exercised the power and authority [492] granted in, \\u00a7 295.180. Since the capacity in which he was serving was fully disclosed and acknowledged, it is not contended that he incurred any personal obligation or liability. When we refer to Julian he will be deemed to be acting in his capacity as agent or representative of the state.\\nIn order for the state to acquire the status of employer with respect to the operating personnel of the utility, there must be express legislation so providing or the relation must -come into existence as the result of contract or result from the application of common law principles to the facts in the case. .\\nSince the statute does not expressly so provide, the relation of employer and employee between the state and the operating personnel of the utility did not arise by operation of law. In this instance we use the term \\\"operation of law\\\" to express the manner in which rights, and sometimes liabilities, devolve upon a person or persons by the application to the particular situation of express statutory provisions without any act of the party or parties. Black's Law Dictionary, 4th Ed., Operation of Law.\\nMerely invoking the provisions of the King-Thompson Act by the issuance of the governor's proclamation and Executive Order No. 1 without more, did not have the legal effect of converting the operating employees of the transit company into state employees. Such intent and purpose would have to be clearly expressed. The New Jersey statute for dealing with labor disputes in public utilities is similar to our own. However, it expressly provides that \\\"during the continuance of such possession the relationship between the government of the State of New Jersey and the persons employed at such public utility, shall be that of employer and employee.\\\".NJSA 34:13B-19.\\nThe General Assembly has the power to impose the status by express legislative enactment.' Thus our Workmen's Compensation Act specifically creates the status of \\\"statutory\\\" employer and employee. V.A.M.S., \\u00a7 287.040; Viselli v. Missouri Theatre Bldg. Corp., 361 Mo, 280, 234 S.W.2d 563, 567; Perrin v. American Theatrical Co., 352 Mo. 484, 178 S.W.2d 332, 334; Baker v. Iowa-Missouri Walnut Log Co., Mo. App., 270 S.W.2d 73, 75; Rucker v. Blanke Baer Extract & Preserving Co., Mo.App., 162 S.W.2d 345, 346.\\nThe defendant transit company has cited a number of cases which arose under the World War I Railroad Seizure Act, in support of its contention that \\\"taking possession\\\" in and of itself relieves the transit company of liability. These authorities are not helpful in the present situation because of the difference in statutory provisions and executive orders. This distinction is made apparent in the case of Mo. PaC. R. Co. v. Ault, 256 U.S. 554, 41 S.Ct. 593, where, by the express provisions of the Federal Act, the new managers were required to completely sever their relations with the railroad companies, the employees were controlled by the federal administrator and not by the company, a remedy was provided in lieu of the carrier's liability and the government got the profits or was charged with the loss resulting from operations.\\nWe will not imply from the statute an intention to make the utility personnel state employees by legislative edict unless such intent is clearly expressed. See State ex rel. Buder v. Hackmann, 305 Mo. 342, 265 S.W. 532, 534, wherein a statutory provision for payment of the necessary expenses of the assessor and his deputies was held to \\\"fall far short of constituting clear and satisfactory authority for the payment by the state of clerk hire for assessors.\\\" The act not only fails to provide expressly and with clarity that the operating personnel of a utility shall, by operation of law, become state employees, but also wholly fails to make any provision fairly susceptible of such a construction.\\nThe proclamation and Executive Order No. 1 made no provision with regard to the use or operation of the utility property. [493] It is from Executive Order No. II, Julian's instructions to Groner, and the activities of Julian and Groner thereafter that we must determine who was legally liable for torts resulting from the operations of the utility at the time plaintiff claims to have been injured.\\nBy Executive Order No. II Julian was authorized to take possession of the utility property or such parts thereof as might be necessary \\\"to insure that said utility above mentioned is effectively operated in the interest of the people of this state.\\\" By \\u00a7 2 of the order he was authorized \\\"to operate and arrange for the operation\\\" of the utility. By paragraph 3 Julian \\\"is authorized to select and hire such employees and agents as may be necessary and suitable to carry out\\\" the provisions of the order. By \\u00a7 5 Julian in his discretion was authorized to permit \\\"the management of the above public utility to continue its managerial functions to the extent consistent with the\\\" purposes of the order.\\nIn transmitting the proclamation and executive orders to Mr. Groner, president of Kansas City Public Service Company, Julian specifically stated that he proposed \\\"to continue the operation of the utility under the present management\\\" and that Mr. Groner \\\"will Have full charge of said utility and all officers and employees will continue under the terms and conditions of employment at the time-possession thereof was seizedOther than contacting Mr. Groner as stated, there is nothing in the record tending to show that Julian undertook to hire or take over the employment of any of the operating' personnel of the utility. It is apparent from an examination of the proclamation and the executive orders in their entirety that Julian did not use to the fullest extent the powers granted him which we will assume without deciding were valid grants of authority.\\nWe are presently interested in determining whether Julian entered into any hiring or contract of employment with the operating personnel of the utility on behalf of the state. State employment, while it must be authorized by law, generally has its basis in contract, express or implied, the same as any other hiring'. 67 C.J.S. 114, Officers, \\u00a7 5(4) states that \\\" an employment, although it may be created by law, usually arises out of a contract between the government and the employee; * .*\\nThis court has adopted the definitions of master and servant found in \\u00a7 2, Restatement of the Law of Agency. Smith v. Fine, 351 Mo. 1179, 175 S.W.2d 761, 765; Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557, 564. Section 2 of the Restatement defines a master as follows: \\\"A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. ' ' A servant is \\\"a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.\\\" The record is devoid of any evidence that Julian controlled or had the right to control the physical conduct of the operating employees of the utility.\\nNone of the utility employees were paid by the state. This is a strong factor indicating that they were not state employees. Williams v. Gideon-Anderson Lumber Co., Mo.App., 224 S.W. 51, 53. In 81 C.J.S. 973, States, \\u00a7 53, with reference to state employees, it is stated: \\\"Payment of particular persons by the state is a very strong circumstance showing that they are state employees, and it has been held that one becomes a civil servant or employee only when _ he furnishes his services or labor for compensation directly paid to him by the state. An independent contractor, working for the state, has been held not 'an employee of the state.' \\\" Under the evidence, we must hold that there was no contract of employment, either express or implied, between Julian on behalf of the state and the operating personnel of the utility.\\nThe question then arises whether the state, through its representative, Julian, [494] exercised such control over the physical operation of the utility as to impose a liability for the acts of the operating personnel of the utility under principles of common law.\\nMr. Julian testified that he did not participate in the management of the company and had no intention of doing so; that all of his instructions were given to Mr. Groner in two letters, one written at the time he delivered the proclamation and executive orders, and the other written in connection with the payment of Workmen's Compensation claims; nor was there any showing that Mr. Julian actively participated in the management of the utility. Apparently the only time Julian was consulted was when the transit company was seeking something for its own advantage. On these occasions Groner and the other executives must be held to be acting in their capacity as corporate officials and not as representatives of the state.\\nThe 'plant, equipment or facility\\\" which the statute authorized the governor to take from the possession of the utility was its physical property. Tucker v. St. Louis-San Francisco R. Co., 298 Mo. 51, 250 S.W. 390; Canary Taxicab Co. v. Terminal Ry. Assn. of St. Louis, 316 Mo. 709, 294 S.W. 88. The act did not purport to authorize the governor to command the services of the personnel of the utility, whether it be the president of the company or the operator of one of its busses.\\nThe governor's Executive Order No. II was not a mandate for Julian to operate the property personally, and the evidence shows that he did not do so. Paragraph 5 of Executive Order No. II authorized Julian to permit the existing management to continue its functions, and his letter of April 29, 1950 shows that this is what he did. The management of the transit company continued to act as a unit and Julian did not disturb its employment relations.\\nWhether the company established a relation of independent contractor with the state is not necessary for decision in this case. However, the relation is clearly akin to it. In \\u00a7 2, Restatement of the Law of Agency, an independent contractor is defined as \\\"A person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking.\\\" Was the transit company subject to Julian's right to control with respect to its \\\"physical conduct in the performance of the undertaking\\\"? We do not think so on the facts of this case.\\nThe briefs in this case discuss at great length the kind and extent or degree of possession taken by the state pursuant to the King-Thompson Act. Possession alone is not determinative of the issue of liability. Our inquiry is who was the master of the driver of the motorbus in question, and we need not determine precisely the kind or extent of the state's possession except as it affects our primary question. It is aptly stated in 73 C.J.S. 196, Property, \\u00a7 14, \\\"Both in common speech and in legal terminology, there is no word more ambiguous in its meaning than 'possession' when considered in its relation to property.\\\"\\nActual possession, or, as it is sometimes called, pedis possessio, has been defined by the Missouri courts as \\\"real\\\" and \\\"visible\\\" and as \\\" 'actual and continuous occupancy or exercise of full dominion.' \\\" Jackson v. Rothschild, Mo.App., 99 S.W.2d 859, 861; Bradbury Marble Co. v. Laclede Gaslight Co., 128 Mo.App. 96, 106 S. W. 594, 599; Crain v. Peterman, 200 Mo. 295, 98 S.W. 600. The possession which Julian assumed was largely declaratory in nature. It was proclaimed by the governor and again by Julian, in his letter to Mr. Groner, but actually nothing was done about it. No one was dispossessed and everyone stayed on his accustomed job. The state's possession was not real or visible, nor was the transit company ousted from its \\\"actual and continuous occupancy or exercise of full dominion\\\" over its premises. Not only did the company retain the occupancy of its physical property, but the revenue was received and retained as it had always been and was used for operating expenses, improvements, [495] relocating tracks, and even the purchase of additional equipment to the extent of between $300,000 and $400,000.\\nIt is apparent from the record, and we so hold, that possession of Julian and the state was not intended to be and was not in fact actual possession. Insofar as the possession needs to be identified by name, it might be called a legal possession or a nominal and technical possession. It was more or less the assertion of the right to possession which did not, in this case, ripen into exclusive or actual possession.\\nThat the right of use and possession is not conclusive as to liability is show'n by the case of Bibb's Adm'r. v. Norfolk & W. R. Co., 87 Va. 711, 14 S.E. 163. In this case the railroad company contracted for repairs to one of its bridges. The company reserved the right to continue to use the bridge and to inspect the work as it proceeded. While so using the bridge, an accident occurred through no active negligence of the company, and an employee of the bridge contractor was injured. It was held that this was not such possession or control as to impose liability upon the railroad company. The mere retention by the one in possession of the right to inspect the work of an independent contractor as it progresses for the purpose of determining whether it is completed in accordance with the contract does not create the relation of master and servant with those engaged in the work. Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16, 20-21; Williamson v. Southwestern Bell Tel. Co., Mo., 265 S.W.2d 354, 359.\\nIt cannot be said that the state retained any right to control with respect to the \\\"physical conduct in the performance of the undertaking.\\\" Julian designated the \\\"present management\\\" to continue the operation of the utility. Although his contacts were with the president of the company, it would be straining the situation unduly to say that Groner was \\\"the management.\\\" Obviously the transit company remained in control as the managers of the utility business. So far as the record shows, Julian did not even retain control of policy- making matters. He was not consulted with respect to improvements made or new equipment purchased, some of which was quite substantial.\\nWhere the statute does not expressly so provide and participation in operations has been limited as here, the courts have held that' government did not incur liability by asserting the right to seize property of the utility and to have \\\"nominal\\\" or \\\"technical\\\" possession. In Marion & Rye Valley Ry. Co. v. United States, 270 U.S. 280, 46 S.Ct. 253, 255, the railway company made its claim for the alleged taking' of possession and use of the railroad by the United States under the Federal Control Act. The court held that even if' there was a technical taking that the company had remained in actual possession of its property and there could be no recovery.\\nIn the case of Stanton v. Ruthbell Coal Co., 127 W.Va. 685, 34 S.E.2d 257, the action was for the wrongful death of a coal miner. The defendant coal company asserted that the government of the United States under an executive order issued by the President of the United States was, on August 27, 1943, decedent's employer and in complete possession and control of the mine and its operation and therefore defendant was under no liability whatsoever. The President's order provided that the secretary of the interior shall take over such control of coal mines as he may deem necessary to accomplish the maintenance of full production of coal for the effective prosecution of the war. The Supreme Court of Appeals of West Virginia held that the regulations \\\"clearly indicate that, except and only if necessary to effect the primary object of Government control, such control would be nominal. \\\" The court pointed out that the control of the mines was wholly unlike the control of the railroads, since in the latter case the director general had been made liable for damages resulting from'the negligent operation [496] of the railroads and the carriers themselves had been relieved. A petition for review by the Supreme Court of the United States on certiorari was denied (326 U.S. 740, 66 S.Ct. 53). The Stanton ease is quite similar on the essential facts and the applicable principles to the case at bar. In the case of State v. Traffic Tel. Workers Fed., 142 N.J.Eq. 792, 61 A.2d 570, 573,'the seizure was referred to as a \\\"protective custodianship\\\" in a situation where the seizure was comparable to the one in the case at bar. '\\nUnder the facts of this case the state did not incur any liability to persons injured as a result of operations during the seizure of 'the utility, and it follows that Julian's motion to dismiss was properly ruled.\\nOur next subject of inquiry is whether the transit company remained liable for the torts of the utility personnel after April '29, I960, as it had been before. None of the state's funds were used in the operation of the utility between May 1 and December 11, 1950. Mr. Julian did not seize any of the company's money nor its bank account; nor did he collect any of the current income during this period or sign any checks. The payment of the operating employees out of funds which belonged to the company, or which were treated as its own, was a circumstance tending to prove the utility personnel were employees of the company during this period of time. Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053, 1058. After eliminating self-serving declarations and conclusions from the record, there is no competent evidence that the employer-employee relationship between the transit company and its employees was severed on April 29, 1950, and we hold that the relation continued to exist during the period in question and that at the time of plaintiff's alleged injury the transit company was the employer and master of the operator of the motor-bus in question.\\nThe defendant company would also be liable on the theory of ratification for tortious acts of the operating personnel of the utility. The defendant company received and retained the revenue derived from the carriage of passengers during the period in question. Although Mr. Groner mentioned an accounting, it was never made. The company's acceptance and retention of the fares of passengers under the circumstances amounts to a ratification that establishes the relationship of master and servant in such a way and in such a character that the company must be held responsible for any negligence of the operator of the motorbus. In the case of Dempsey v. Chambers, 154 Mass. 330, 28 N.E. 279, the plaintiff ordered coal from the defendant. The coal was delivered by one who was not defendant's servant, and in doing so he broke a plate glass window of the plaintiff. After the delivery of the coal, and with knowledge that the person who delivered the coal had broken the window, the defendant demanded that the plaintiff pay for the coal. It was held that there was a ratification which made the deliverer of the coal the agent and servant of the defendant for the delivery of the coal, and that the defendant became responsible for his negligence in that regard. The opinion by judge Oliver Wendell Holmes, Jr. stated, 28 N.E. l.c. 280, 281:\\n\\\"We have found hardly anything in the books dealing with the precise ease, but we are of opinion that consistency with the whole course of authority requires us to hold that the defendant's ratification of the employment established the relation of master and servant from the beginning, with all its incidents, including the anomalous liability for his negligent acts. See Coomes v. Houghton, 102 Mass. 211, 213, 214; Cooley, Torts, 128, 129. The ratification goes to the relation, and establishes it ab initio. The relation existing, the master is answerable for torts which he has not ratified specifically, just as he is for those which he has not commanded, and as he may be for those which he has expressly forbidden. ' '\\n[497] The case of Lamb v. Davidson, 69 Mo.App. 107, recognized the principle of ratification. In that case the tortious act consisted of the detention by defendant's daughter and nephew of plaintiff's cattle which had strayed into defendant's pasture. The original detention had been without defendant's knowledge. The opinion states, l.c. 114, ' ' if they were not acting for him, nor as his servants, he after being notified by Lamb of what had been done, ratified the- act (of which there is some evidence in the record) he is responsible. ' '\\nThe principle of ratification under these circumstances is well established in. common law. In 35 Am. Jur. 997, Master and Servant, \\u00a7 563, it is stated: \\\"Where one. assumes without authority to act as the agent of another, the latter's ratification of the transaction relates back and establishes the relation of employer and employee with all of its incidents including the employer's liability for the employee's wrongful acts and omissions.\\\"\\nWhether there were net profits during the period the record does not show, but it does not' matter. The company did receive and retain the income derived from the operation of the utility during the period in question, and that is sufficient to support a ratification.\\nNeither of -the defendants have questioned the constitutionality . of the King-Thompson Act. The amici curiae have no right to question the act's constitutionality although they have undertaken, to do so. Laret Investment Co. v. Dickmann, 345 Mo. 449, 134 S.W.2d 65. The plaintiff first raised the question of the act's constitutionality in her reply. This has been held too late. Nemours v. City of Clayton, 351 Mo. 317, 172 S.W.2d 937. Even though.the question were timely raised by plaintiff, it would not be necessary to rule the constitutional questions because their determination is not, essential to the proper decision of the case presented. State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W.2d 75; Kansas City v. Tiernan, 356 Mo. 138, 202 S.W.2d 20.\\nFor the reasons given, the judgment of the trial court dismissing the case as to the defendant 'Vance Julian,. Chairman, Missouri State Board of Mediation, is affirmed.\\nThe judgment dismissing the defendant Kansas City Public Service Company, a Corporation, is reversed and the cause is remanded.\\nLeedy, G.J., Dalton, Hollingsworth, Hyde, Westhues, JJ.,' and Stone, Special Judge, concur; Hager, J., hot sitting.\\nThe word \\\"processes\\\" as used here and elsewhere in this order and Julian's letter of April 29, 1950, probably should be read as \\\"purposes.\\\"\"}"

mo/486378.json

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+"{\"id\": \"486378\", \"name\": \"Hiram Hunter, Respondent, v. The City of Mexico, Appellant\", \"name_abbreviation\": \"Hunter v. City of Mexico\", \"decision_date\": \"1892-04-04\", \"docket_number\": \"\", \"first_page\": \"17\", \"last_page\": \"19\", \"citations\": \"49 Mo. App. 17\", \"volume\": \"49\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Kansas City Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T19:40:14.284876+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Hiram Hunter, Respondent, v. The City of Mexico, Appellant.\", \"head_matter\": \"Hiram Hunter, Respondent, v. The City of Mexico, Appellant.\\nKansas City Court of Appeals,\\nApril 4, 1892.\\n1. Evidence: ordinance: injury on sidewalk. In an action against a city for an injury on its sidewalk, it is error to admit in testimony an ordinance manifestly referring to holes, etc., on private property.\\n2. Damages: instruction: pleading: evidence: remittitur. The petition in an action for personal injury alleged that plaintiff had been compelled to spend $100 in endeavoring to be cured; there was no-evidence of what he had paid his physicians, the instructions told the jury to allow plaintiff all the expenses incurred, whether yet paid or not, in and about the treatment of his ease. JZeld, reversible error and the appellate court cannot cure it by remitMtw.\\nAppeal from the Audrain Circuit Court. \\u2014 Hon. E. M. Hughes, Judge.\\nReversed and remanded.\\nGeo. Robertson, for appellant.\\n(1) Permitting section 42, chapter 11, of the city ordinances to be read to the jury was error, because read with the next section-43, and showed conclusively that it has no sort of application to holes in the sidewalks. And no ordinances were pleaded even in substance. City of Kcmsas v. Johnson, 78 Mo. 661. (2) Instruction, numbered 7, which told the jury in estimating the damages to take into consideration \\u201cthe loss of time occasioned,\\u201d and \\u201call expenses incurred (whether yet paid or not) in and about the treatment of his case,\\u201d is erroneous. Buhe v. Bailroad, 99 Mo. 317; Mwrray v. Bailroad, 101 Mo. 236.\\nNat C. Bryden, Hirmn Moore and T. J. Bowe, for respondent.\\n(1) The verdict is for the right party. (2) The case was fully and fairly presented to the jury upon the evidence admitted and the instructions given. (3) The matters of which defendant complains are not such, even if erroneous, as would materially affect the merits.\", \"word_count\": \"583\", \"char_count\": \"3421\", \"text\": \"Ellison, J.\\nPlaintiff received serious personal injury on one of defendant's sidewalks on account of defects therein. He obtained judgment below, which we are askedlto reverse on account of errors at the trial.\\nI. A great many objections to testimony were made by. defendant which were overruled. It will not be necessary to notice all of these. Sections 12 and 13 of the city ordinances were improperly admitted. They manifestly refer to holes or other dangerous places on private property. They have no reference to the sidewalks or streets of the city.\\nII. The petition charged that plaintiff was \\\"compelled to spend the sum of $100 in endeavoring to be cured of his said injuries.\\\" The testimony disclosed that he was .attended by several physicians and surgeons, but there was no evidence of what he paid them, or was to pay them, or as to what their services were \\u2022worth. In this condition of the case the court instructed the jury to allow plaintiff \\\"all expenses incurred whether yet paid or not, in and about the treatment of his case.\\\" This was error. We decided this precise question in Rhodes v. Nevada, 47 Mo. App. 499. Our attention is now -called to the case of Smith v. Railroad, lately decided by the supreme court, in which the same view is taken. The suggestion may occur that we could order a remittitwr for the medical attention, but it will be noticed that, while the petition claims $100, the instruction places no limit on the amount which the jury might allow for such service.\\nThe judgment must, therefore, be reversed and the cause remanded.\\nAll concur.\"}"

mo/513894.json

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+"{\"id\": \"513894\", \"name\": \"Elizabeth R. McIntyre, Defendant in Error, v. George McIntyre, Plaintiff in Error\", \"name_abbreviation\": \"McIntyre v. McIntyre\", \"decision_date\": \"1887-01-10\", \"docket_number\": \"\", \"first_page\": \"166\", \"last_page\": \"169\", \"citations\": \"24 Mo. App. 166\", \"volume\": \"24\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Kansas City Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:31:16.425330+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Elizabeth R. McIntyre, Defendant in Error, v. George McIntyre, Plaintiff in Error.\", \"head_matter\": \"Elizabeth R. McIntyre, Defendant in Error, v. George McIntyre, Plaintiff in Error.\\nKansas City Court of Appeals,\\nJanuary 10, 1887.\\n1. Appellate Courts \\u2014 Remanding oe Cause \\u2014 Direction as to Further Proceedings. \\u2014 When a cause is remanded, by an appellate court, with directions as to the further proceedings of the trial court, the case does not present the same phase as if there had been a simple reversal and, remanding. Where special directions have been given, it is out of the power of the lower court to \\u2022 open the cause for other purposes; that court is powerless to dc otherwise than is directed by the mandate. Pomeroy v. Benton 77 Mo. 64.\\nError to Holt Circuit Court, Hon. Henry S, Kelley, Judge.\\nReversed and remanded with directions.\\nThe case is stated in the opinion.\\nJ. C. Fisher, with Daniel Zook, for the appellant.\\nI. The circuit court had no jurisdiction under the decision of the Supreme Court to enter any judgment, except to eliminate that part allowing alimony to the wife, and the judgment in this case is absolutely void. Chouteau v. Mien, 74 Mo. 56; Hwrclc v. Er shine, 50 Mo. 117; Shroyer v. Nickel, 67 Mo. 589 ; sects. 3776, 3779, Devised Statutes.\\nII. A court cannot at any subsequent term change its judgment to one which it neither rendered nor intended to render. Ross v. Ross, 83 Mo. 100.\\nNo brief for the respondent.\", \"word_count\": \"939\", \"char_count\": \"5396\", \"text\": \"Ellison, J.\\nPlaintiff sued defendant in the Holt county circuit court for divorce, alleging cruelty, indignities, etc., and praying for alimony as well as the custody of an infant child. The defendant answered by way of cross-bill. On trial, the decree was given for defendant on his cross-bill, but the court gave judgment for alimony in favor of plaintiff. The defendant took the case to the Supreme Court in order to reverse that part of the decree relating to the alimony allowed plaintiff, contending that, as he had obtained the divorce for the fault ol the plaintiff, there was no authority of law for the judgment of alimony against him. In this view he waa sustained by the Supreme Court. 80 Mo. 470. That court said, \\\" This writ of error is prosecuted for the purpose of reversing so much of said decree as adjudges alimony in favor of plaintiff.\\\" The opinion proceeds to characterise the decree allowing alimony to the plaintiff, when the divorce was granted for plaintiff's fault, as extraordinary and without the warrant of law. The opinion closed by stating that, \\\" The court, having adjudged the divorce in favor of the defendant, had no jurisdiction to render a decree for alimony in favor of plaintiff. This error is palpable, and may be corrected on writ of error. Accordingly it is ordered that the decree be reversed and the cause remanded, with directions to the court below to enter judgment in accordance with this opinion.\\\" Under this state of the case the circuit court entered the following judgment, on which defendant brings the case here by writ of error:\\n\\\" Now, on this thirteenth day of May, 1885, it being the fifteenth day of the April term of said court, the said cause coming on for hearing on the motion of the plaintiff and for disposition on the mandate of the Supreme Court, and the court having heard the evidence and the decree of this court heretofore rendered, awarding one thousand dollars in gross to plaintiff, having been set aside and reversed by the said Supreme Court; this court now here modifies said former decree, as follows: And it is ordered, adjudged and decreed that said plaintiff have the care and custody of the infant child, Irene Gertrude McIntyre, and it is further ordered and adjudged and decreed, that the defendant pay the clerk of this court the sum of fifty dollars within thirty days, and that he pay the like sum of fifty dollars every six months, during the next five years, viz.: On the thirteenth day of September, and on the thirteenth day of March of each year, for the support, maintenance and education of said child, subject to the order of the court, and until otherwise ordered by the court, and that in default of the payment of said sum or any installment above specified, that execution issue therefor.\\\"\\nThis decree is Dot in conformity to the opinion or mandate of the Supreme Court.\\nThe writ of error from that court was prosecuted to reverse so much of the decree as gave the plaintiff .alimony. The effect of that opinion was that ,the circuit court should enter up judgment for defendant as at first entered, omitting the alimony. When a cause is remanded with directions as to the further proceedings of the trial court the case does not present the same phase as if there had been a simple reversal and remanding; where special directions have been given, it is out of the power of the lower court to open the cause for other purposes. Chouteau v. Allen, 74 Mo. 56. The circuit court is powerless to do otherwise than is directed by the mandate. Pomeroy v. Benton, 77 Mo. 64, 80; State ex rel. Dixon v. Givan, 75 Mo. 516; Connor v. Pope, 23 Mo. App. 344.\\nUnder the directions from the Supreme Court the circuit court had no authority to enter a judgment against defendant for the maintenance of the child. The judgment will, therefore, be reversed and the cause remanded with directions that the circuit court enter up the judgment as originally rendered, except that portion allowing the plaintiff the sum of one thousand dollars .alimony.\\nAll concur.\"}"

mo/514991.json

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+"{\"id\": \"514991\", \"name\": \"Peter G. Wilson, Respondent, v. The Wabash, St. Louis & Pacific Railway Company, Appellant\", \"name_abbreviation\": \"Wilson v. Wabash, St. Louis & Pacific Railway Co.\", \"decision_date\": \"1886-06-28\", \"docket_number\": \"\", \"first_page\": \"50\", \"last_page\": \"56\", \"citations\": \"23 Mo. App. 50\", \"volume\": \"23\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:39:54.375453+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Peter G. Wilson, Respondent, v. The Wabash, St. Louis & Pacific Railway Company, Appellant.\", \"head_matter\": \"Peter G. Wilson, Respondent, v. The Wabash, St. Louis & Pacific Railway Company, Appellant.\\nKansas City Court of Appeals,\\nJune 28, 1886.\\nI. Contract of Shipment\\u2014Car Designated by Company\\u2014Mistake-Case Adjudged.\\u2014Where, as in this case, the plaintiff took the specific car designated by defendant\\u2019s agent, the matter of the number of the car concerned the carrier alone. This is not affected by the fact that the contract of shipment was reduced to writing-, and a car designated in it different from the one so designated by said agent. The contract was to carry the freight, and the number of the car on the margin was nothing more than the memorandum of defendant for its assistance and convenience.\\n3. -Clause as to Notice. Not Applicable\\u2014Case Adjudged. In view of the facts of this case, the clause as to notice of claim is not applicable. It provides-that no claim shall be paid, etc., unless a claim for such loss shall be made in writing, etc., within live days \\u201cfrom the time said stock is removed from said oar.\\u201d The five days, within which notice is to be given, only begin to run from the time the hogs were removed from the oar. Neither plaintiff, nor his consignee had an opportunity to remove the hogs from the car, and the complaint is that they were not delivered to the consignee by defendant, as it had contracted to do. Certainly the notice would not apply until the defendant, who made the mistake and the wrong delivery, has notified the shipper, or his consignee, of the fact, and that the hogs had been removed from the car.\\nAppeal from Carroll Circuit Court, Hon..James M. Davis, Judge.\\nAffirmed.\\nStatement of case by the court.\\nThis is an action to recover damages for failure of defendant, a railroad corporation, to carry hogs of the plaintiff according to contract. The petition charged that the defendant, in March, 1882, agreed with plaintiff to ship a car load of hogs for him from Norborne, Carroll county, to East St. Louis, over its road, consigned to plaintiff\\u2019s agent at said destination. That defendant failed to so do, but instead, delivered to plaintiff\\u2019s said agent another car load of hogs of an inferior quality, and \\u2022of less value by two hundred dollars, all of which facts were unknown to plaintiff until after said hogs had been .sold and disposed of.\\nThe answer pleaded specially, after tendering the general issue as to other matters, a special contract of shipment, sufficiently noted in the opinion hereafter, which provided that plaintiff should look after loading and unloading his hogs in the car, and have the care of them while in transit, and stipulating that in case of \\u2022damage growing out of the contract, plaintiff should give \\u25a0to defendant a written notice, sworn to, of the claim for \\u25a0damage or loss within five days after the hogs were .removed from the car. It alleged that the fault, if any, in loading the hogs into the wrong car was that of the plaintiff, and that he had failed to deliver to defendant the required notice within the five days.\\nThe reply admitted that plaintiff had not given the \\u2022notice within five days, and alleged that he did not have notice until after the time had elapsed of the mistake made by defendant, and as soon as the mistake was discovered plaintiff\\u2019s said agent at St. Louis made demand of payment, and defendant promised to settle the same without objection to the time or manner of demand.\\nPlaintiff\\u2019s evidence tended to show that he applied to defendant\\u2019s station agent at Norborne for a car in which to ship sixty-five head of fat hogs to East St. Louis; that about dark, or a little after, the agent pointed out to him a car standing on its track at said station, and told him to load his hogs into it. Another party, Findley & McQuiston, were shipping hogs at the same time from this station. There were five cars on the track. Mc-Quiston & Co. loaded in the front four cars, and the car in which the agent directed the plaintiff to load was the rearmost car. That plaintiff did load his hogs into the car so designated by the agent, and the hogs so left the station, and were carried off in said car. The plaintiff saw, or his servants saw, no number on the car. After completing the loading, the agent presented to plaintiff, or his agent, a contract of shipment to sign, which he did.\\nThe consignment and bill of lading were made out to Metcalfe, Moore & Co., of St. Louis. More than five days thereafter, on receipt of returns from the consignee, the plaintiff discovered, from the lack of correspondence with the number of hogs he had shipped, and from the amount of sale, that there must be some mistake about the matter. He went to St: Louis, and on investigation became satisfied that his car load of hogs had not been properly consigned, and had not been received by his commission merchants. His evidence tended to show that the hogs sent by defendant to his merchant were part of those shipped by Finley & McQuiston. Failing to get any satisfaction from Findley & Co., or to obtain settlement from defendant, this action was brought. Defendant\\u2019s evidence tended to show that the car pointed out by the agent at Norborne to plaintiff in which to ship was car nubered 3108, and it was the same car in which plaintiff loaded his hogs, and that this car went through to St. Louis without any change,.and was duly delivered to Metcalfe, Moore & Co. That plaintiff loaded the hogs himself, or by his servants.\\nThe plaintiff asked no instructions. The court gave quite a number, requested by defendant, and refused others. The court (sitting as a jury) found for plaintiff, and entered up judgment for two hundred dollars against defendant, from which defendant prosecutes this appeal.\\nGeo. S. Grover, for the appellant. .\\nI. The defendant was entitled to a judgment upon the pleadings. Rev. Stat., sects. 3524, 3525; Ennis v. Hogan, 47 Mo. 513.\\nII. The plaintiff was not entitled to recover in this action, as . the mistake in loading the hogs was a risk, which, by the terms of the contract, he expressly assumed. Atchison v. Railroad, 80 Mo. 213; Newby v. Railroad, 19 Mo. App; 391.\\nIII. The instructions asked by defendant on the question of notice correctly declared the law, and it was error to refuse them. Dawson v. Railroad, 76 Mo. 514; Brown v. Railroad, 18 Mo. App. 568.\\nIY. The tenth instruction, asked by defendant, should have been given. Authorities cited, supra.\\nSebiiee and Hale & Sons, for the respondent.\\nI. The answer contained neio onatter, and plaintiff filed a reply thereto. Defendant was not entitled to judgment on the pleadings. Rev. Stat., sect. 3524; Mortland v. Hatton, 44 Mo. 58; Nichols v. LooJcen, 79 Mo. 272.\\nII. The risk of loading was not comprehended in the contract in this case, and Atchison v. Railroad (80 Mo. 213), has no application to this case. So the other authorities cited are\\\"in plaintiff\\u2019s favor.\\nIII. The claim as notice of loss is not applicable here. There is no evidence that these hogs were ever unloaded to plaintiff\\u2019s consignees. Plaintiff was not aware of his loss until after five days. The negligence of defendant made it impossible to give the five days\\u2019 notice.\\nIY. The instructions of defendant were properly refused, because ignoring the right to recover for negligence independeoit of the contract, and of waiver of, and .excuses for notice of, claim.\\nY. The tenth instruction was on the basis of transporting the hogs in a certain car, whereas the evidence was (and the court so found), that defendant agreed to transport the hogs in another and different car. It, with the others, ignored the question of negligence.\\nYI. The finding of the facts by the court has all the conclusiveness of a verdict by the j ury.\", \"word_count\": \"2263\", \"char_count\": \"12888\", \"text\": \"Philips, P. J.\\nIt is difficult to escape the conclu sion, from all the facts and circumstances in evidence,, that the misfortune to plaintiff in this transaction grew out of the mistake of defendant's agent at Norborne in-billing the wrong car to Metcalf, Moore & Co. The agent pointed out the car to the shipper and directed him to-Load his hogs into it. This was done under circumstances to leave no reasonable ground to question the fact, as there is no pretext for saying there was any change of the hogs from one car to another after they were loaded. They all agreed in the fact that the car so pointed out to plaintiff was the rearmost car on the track, and the plaintiff loaded Ms hogs into it. They were sixty-five in num-, ber, and of such a grade as to be easily distinguished from the other hogs shipped at the same time from the-station. It was about, or a little after, dark when the-c,ar was loaded. Plaintiff very naturally gave no heed tot\\u00edre number. He had nothing to do with the numbering, of the car. He took the specific car designated by defendant's agent. The matter of the number concerned the carrier alone. It enabled it to keep its account of the car, so as to trace it, and to guide in the delivery of-the freight, and to enable its agents at the point of delivery to identify it.\\nI. Defendant presented his case in the refused instructions, and in argument at this hearing, upon the assumption that the contract of shipment, having been reduced to writing, and the car furnished by it being designated in the written instrument, it can only be bound by the letter of the written compact, which only required it to deliver that particular car.\\nThe contract, in our opinion, is not so limited. Its stipulation is, \\\"that the party of the first part (the defendant) will forward for the party of the second part (the plaintiff), men and the following freight, to-wit: 1 car hogs '(65) from Norborne to U. depot,\\\" etc. From which it is plain that defendant's undertaking was to carry sixty-five hogs for plaintiff from Norborne, to the Union depot in St. Louis. Nothing is said in the contract about the number of the car. On the margin of the contract there is this memorandum: \\\"No. of car 3108.\\\" This, as already suggested, was nothing more than the memorandum of defendant for its assistance and convenience.\\nIt. would not be contended, I apprehend, by the learned counsel for appellant, that, notwithstanding this marginal note, the defendant could not have shipped the hogs in any other car, and that plaintiff could have claimed damages unless for other cause than the mere change of car designated on the margin of the contract.\\nIn view of the instructions conceded by the court to defendant, it had the fall benefit of the issue of fact as to whether car number 3108 was the one pointed out by its agent to plaintiff. By iheir verdict the jury found that the agent was mistaken, and the verdict is well supported by the evidence.\\nII. The loss resulting to plaintiff was, therefore, directly traceable and attributable to the act of negligence of defendant's agent, for which it must respond in damages, unless relieved therefrom by some other controlling provision of the contract. To this end defendant relies upon the clause respecting the notice to be given in five days. We are of opinion that this provision is inapplicable to the facts of this case. This provision is, that no claim for damage which may accrue to the plaintiff under the contract shall be paid, etc., unless a claim for such loss or damage shall be made in writing, etc., within five days \\\"from the time said stock is removed from sai a oar? '\\nWaiving any discussion of the question, as to the right of defendant to insist upon this provision, even if applicable to the case, where it knew, from the bill of lading, that plaintiff was shipping to commission merchants in St. Louis, who would be governed in receiving the hogs by the bill of lading, and that plaintiff, in the usual course of such transactions, would not know of the miscarriage until the lapse of the five clavs after.the arrival of the hogs, it is enough to say, that the contract invoked by defendant only provides that the five days within which notice is to be given, shall begin to run from the time the hogs were removed from the car. Neither the plaintiff, nor his consignee, had an opportunity to remove the hogs from the car. Complaint is that' they were not delivered. Plaintiff never did remove them from the car, and the record furnished ns by appellant does not show when plaintiff's hogs were so removed.\\nThe case, in principle, is the same as if the defendant had carried plaintiff's hogs to New York. The five days' notice could not apply to such a case. Especially must this be so, until the defendant, who made the mistake and the wrong delivery, has notified the shipper, or his consignee, of the fact, and that the hogs had been removed from the car.\\nSeeking, as the defendant does, to escape his common law liability, by invoking the strict letter of its special contract, it must be held both to its spirit and letter.\\nThe other judges conpurring, the judgment of the circuit court is affirmed.\"}"

mo/532669.json

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+"{\"id\": \"532669\", \"name\": \"M. D. Lewis, Administrator, Respondent, v. F. X. McCabe, Administrator et al., Appellants\", \"name_abbreviation\": \"Lewis v. McCabe\", \"decision_date\": \"1885-01-20\", \"docket_number\": \"\", \"first_page\": \"398\", \"last_page\": \"403\", \"citations\": \"16 Mo. App. 398\", \"volume\": \"16\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:03:33.476920+00:00\", \"provenance\": \"CAP\", \"judges\": \"All the judges concur.\", \"parties\": \"M. D. Lewis, Administrator, Respondent, v. F. X. McCabe, Administrator et al., Appellants.\", \"head_matter\": \"M. D. Lewis, Administrator, Respondent, v. F. X. McCabe, Administrator et al., Appellants.\\nJanuary 20, 1885.\\n1. Administration \\u2014 Costs. \\u2014 An estate can not be charged with the costs of a proceeding begun by one whose administration of the estate was wholly without authority andyoid.\\n2. \\u2014 One -who, without legal authority, sues as administrator and fails to recover, is liable for the costs de bonis propriis.\\n3. -Compensation. \\u2014 An administrator\\u2019s compensation is not necessarily confined to the statutory commissions.\\n\\u00e9. -Judgments \\u2014 Receiver. \\u2014 An order appointing a receiver to take charge of property until the further order of the court, is not a final judgment.\\nAppeal from the St. Louis Circuit Court, Horner, J.\\nReversed and remanded, with directions.\\nE. T. Parish, for the appellants.\\nW. L. Scott and E. M. McGinnis, for the respondent.\", \"word_count\": \"1734\", \"char_count\": \"10224\", \"text\": \"Lewis, P. J.,\\ndelivered the opinion of the court.\\nThe plaintiff as public administrator of the city of St. Louis, undertook to act as administrator of the estate of W. J. Maynard, who died in New Orleans in the year 1867. In that capacity the plaintiff prosecuted a suit which had been commenced by his predecessor in office, against the legal representatives of Catherine O. Long, deceased, for an alleged waste and conversion by her in her lifetime of valuable property of Maynard's, in the city of New Orleans after his death. He obtained ajudgment in the circuit court, which was affirmed by the court of appeals, and was thereupon taken by appeal to the supreme court. Pending this appeal, the plaintiff, assumingthat his judgment would be again affirmed, instituted the present proceeding in the nature of a bill in equity against Catherine Long's representatives, for the appointment of a receiver to take charge of and preserve certain real estate in their possession, so that it might be available for the ultimate satisfaction of his claim. This application was granted in May, 1879, and the defendant McCabe, who had become administrator of Catherine Long's estate, was appointed receiver, giving an approved bond in the sum of $5,000. He took the property into possession, collected rents and made settlements, etc., until some time in the year 1883, when the property was sui'|rendered to the parties from whom it had been taken. The supreme court, however, reversed the plaintiff's judgment on the ground that his administration of Maynard's estate was wholly without authority and void from the beginning, that the claim sued upon was not an asset of that estate, but was, if available at all, a right vested in its distributees, who alone were competent to sue for its enforcement. There were, outside of this claim, no assets, real or supposed, of the estate of Maynard.\\nAfter the determination of the cause in the supreme court the defendants moved in the circuit court for a dismissal of the present proceeding and a taxing of the costs against the plaintiff de bonis propriis. The court sustained the motion as to dismissal and, overruling it in the matter of costs, directed that the costs be taxed against the plaintiff de bonis testatoris. From this order the defendants appealed.\\nAn insuperable difficulty in the way of sustaining this judgment appears in the fact that it directs the plaintiff to make disbursements from a fund which is not his and which was never under his lawful control. It is like commanding A to make a transfer of the property to B without B's concurrence. It is fundamental that no valid judgment can be rendered against any person or thing, when such person or thing is not properly before the court. The estate of Maynard was never in court for any purpose. According to the decision of the supreme court it was not represented by the plaintiff, who could no more bring it into litigation than he could the property of any stranger, without a shadow of authority from its owner. It makes the case neither better nor worse that the- estate was valueless. If it had been worth thousands it could never have been made the object of a judgment wherein it was not represented by any person authorized to appear for it. This is conclusive against the propriety of the action of the circuit court, but some other considerations are not less so.\\nIt is settled law in the case of a rightful administrator, that upon his failure to sustain upon the merits a suit brought by him on a cause of action which arose after the death of his intestate, he must be taxed with the costs de bonis propriis. Woolridge v. Draper, 15 Mo. 470 ; Ross v. Alleman, 60 Mo. 269. With how much greater emphasis should the rule be enforced when the party begins a litigation not only without justification in the merits of the cause, but also without personal authority to sue upon a just demand.\\nThis record shows that, after the judgment in the supreme court, the defendants moved there for a taxation of the costs against the plaintiff, de bonis propriis, upon the specific grounds that the plaintiff was not legally in charge of the estate of Maynard, and that the cause of action, if any, arose after Maynard's death. . The motion was sustained, manifestly on those grounds. They are the same grounds upon which the present proceeding was dismissed by the circuit court, in proper deference to the views of the higher tribunal. The ruling of the supreme court as to the necessary effect of those grounds upon the taxation of costs is a controlling precedent, brought to our attention on the face of the record, and we are bound to follow it to the same conclusion. When this cause was dismissed the plaintiff became the losing party, and there is therefore not the slightest difference, in controlling principles between the two cases. The authorities cited, touching a discretion in allowing costs on motions, have exclusive application to discriminations between the advei'se parties. They have nothing to do with the question arising when an administrator, as the losing party, becomes liable for costs, whether he shall pay them out of the estate or out of his own pocket. On that question the law is settled, and there is no such discretion.\\nWe can not occupy space in discussing all the points raised for the plaintiff. As to many of them it is difficult to believe that learned counsel really expect us to find in them any persuasive force. For instance, quite a number of arguments are based, on the preliminary assumption that the case before us was a proceeding instituted to aid the probate court in an enforcement of its order which commanded the devisees of Catherine Long to surrender the lands in their possession to McCabe as administrator of her estate, and thus to place in his hands assets which he was otherwise unable to control. And yet there is not a line in the record intimating that any such application was offered, or that any order of the court was directed to such an end. The petition asks for the appointment of a receiver, who will, of course, when vappointed, be under the exclusive control of the circuit, and not of the probate court. It is a mere coincidence that the man who held the position of administrator was also invested with the office of receiver. The court might have appointed any other person to be receiver, in perfect accord with the prayer of the petitioner and with the purposes of the suit. McCabe as receiver and McCabe as administrator were as distinct in rights, duties, responsibilities, and titles to compensation for services rendered as if the two characters had been borne by different individuals. The plaintiff strangely insists that the compensation allowed by the circuit court to the receiver should be diminished by the amount awarded to the administrator by the probate court. If it were true that the administrator's commissions of five per cent covered his entire right of compensation for the management of real estate and the performance of all other duties, this would not curtail the circuit court of its exclusive jurisdiction to compensate the receiver, however it might take into equitable consideration, infixing the amount, any other emoluments enjoyed by the same party from correlative sources. But it is not true. The statute allows extra compensation to administrators for services similar to those here performed by the receiver. In re Handfield's Estate, ante, p. 332. Nothing in this record furnishes a proper basis for any revision of the circuit court's discretion in fixing the amount of the receiver's compensation.\\nCounsel for the plaintiff erroneously assume that an entry of record in the circuit court on February 25, 1880, was a final judgment, and argue hence that all the subsequent proceedings in this cause, including the allowance to the receiver, were coram non judice, and void. The order there made appointed the receiver, and directed him to take charge of the property described, and to \\\" collect the rents and pay the taxes and preserve said real estate, until the further order of this court.\\\" As in all cases of receiver-ships, the cause continued to be pending for appropriate supplementary orders until the discharge of the receiver. The final judgment was rendered in the dismissal of the cause, on May 19, 1884.\\nThe necessary conclusion may appear to be a harsh one for the plaintiff, who is well known to be a most faithful and efficient public officer. But it is only one of the numerous cases wherein a slight error of judgment may entail graver consequences than the mere ethics of rewards and penalties could ever invoke. There is no need for any doubt that the plaintiff acted throughout with a conscientious zeal in the performance of what he believed to be his duty. But he took upon himself all the risks of the judicial outcome. He set in motion the legal machinery which compelled the receiver and other officers of the courts to perform services for which the law declares they must be paid. The supreme court has said that he did this without any legal justification or authority, and it follows, by all controlling precedents, that he only must bear the loss. The judgment will be reversed and the cause remanded, with directions to the circuit court to tax the costs in conformity with this opinion.\\nAll the judges concur.\"}"

mo/6927595.json

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+"{\"id\": \"6927595\", \"name\": \"Darius C. YOUNG, Appellant, v. CITY OF ST. LOUIS, et al., Respondents\", \"name_abbreviation\": \"Young v. City of St. Louis\", \"decision_date\": \"2014-07-08\", \"docket_number\": \"No. ED 100568\", \"first_page\": \"245\", \"last_page\": \"245\", \"citations\": \"436 S.W.3d 245\", \"volume\": \"436\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:10:21.650764+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROY L. RICHTER, P.J., CLIFFORD H. AHRENS, J., and GARY M. GAERTNER, JR., J.\", \"parties\": \"Darius C. YOUNG, Appellant, v. CITY OF ST. LOUIS, et al., Respondents.\", \"head_matter\": \"Darius C. YOUNG, Appellant, v. CITY OF ST. LOUIS, et al., Respondents.\\nNo. ED 100568.\\nMissouri Court of Appeals, Eastern District.\\nJuly 8, 2014.\\nCharles W. Bobinette, St. Louis, MO, for appellant.\\nNancy E. Emmel, St. Louis, MO, for respondent.\\nBefore ROY L. RICHTER, P.J., CLIFFORD H. AHRENS, J., and GARY M. GAERTNER, JR., J.\", \"word_count\": \"154\", \"char_count\": \"918\", \"text\": \"ORDER\\nPER CURIAM.\\nDarius Young appeals from the order of the Civil Service Commission terminating his employment as a Correctional Shift Supervisor with the Division of Corrections of the City of St. Louis.\\nWe have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.\\nThe judgment of the trial court is affirmed in accordance with Rule 84.16(b).\"}"

mo/7096296.json

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+"{\"id\": \"7096296\", \"name\": \"STATE of Missouri, Plaintiff-Respondent, v. Randall Scott LUDEMANN, Defendant-Appellant\", \"name_abbreviation\": \"State v. Ludemann\", \"decision_date\": \"2012-11-26\", \"docket_number\": \"No. SD 31652\", \"first_page\": \"882\", \"last_page\": \"886\", \"citations\": \"386 S.W.3d 882\", \"volume\": \"386\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:40:06.245827+00:00\", \"provenance\": \"CAP\", \"judges\": \"DANIEL E. SCOTT, P.J., and JEFFREY W. BATES, J, Concur.\", \"parties\": \"STATE of Missouri, Plaintiff-Respondent, v. Randall Scott LUDEMANN, Defendant-Appellant.\", \"head_matter\": \"STATE of Missouri, Plaintiff-Respondent, v. Randall Scott LUDEMANN, Defendant-Appellant.\\nNo. SD 31652.\\nMissouri Court of Appeals, Southern District, Division Two.\\nNov. 26, 2012.\\nEmmett D. Queener, Columbia, MO, for Appellant.\\nGregory L. Barnes, Jefferson City, MO, for Respondent.\", \"word_count\": \"2199\", \"char_count\": \"13218\", \"text\": \"DON E. BURRELL, J.\\nRandall Scott Ludemann (\\\"Defendant\\\") appeals his conviction after a jury trial of possession of a firearm by a felon (see section 571.070.1(1) ), for which he received a suspended, six-year sentence. In his sole point on appeal, Defendant claims the evidence was insufficient to prove that he had actual possession of \\\"or that he had access to or the ability to exercise control over the [firearm].\\\" Finding no merit in the claim, we affirm.\\nApplicable Principles of Review\\n\\\"When considering the sufficiency of the evidence on appeal, this Court must determine whether sufficient evidence permits a reasonable juror to find guilt beyond a reasonable doubt.\\\" State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005). We view the evidence and the reasonable inferences drawn from it \\\"in the light most favorable to the verdict, disregarding any evidence and inferences contrary to the verdict.\\\" Id.\\nAn appellate court does not reweigh the evidence. State v. Breedlove, 348 S.W.3d 810, 814 (Mo.App. S.D.2011). \\\"The reliability, credibility, and weight of witness testimony are for the fact-finder to determine. It is within the fact-finder's province to believe all, some, or none of the witness' testimony in arriving at its decision.\\\" State v. Cannafax, 344 S.W.3d 279, 284 (Mo.App. S.D.2011) (internal citation omitted).\\nFacts\\nThe evidence adduced at trial, as viewed in the light most favorable to the verdict, was as follows. In 2009, Defendant resided in a rock house just outside Osceola that he rented from John Wedgeworth. Wedgeworth resided in a \\\"doublewide\\\" mobile home situated about 150 to 200 yards from Defendant's rock house. On March 19, 2009, authorities executed a search warrant at the rock house. No one was home, so the officers forced entry into the home. At the time of the search, Defendant had been previously convicted of at least one felony.\\nOne of the items the officers observed was a locked gun safe. While the officers were searching the house, Wedgeworth arrived. Wedgeworth told officer Lee Hilty that Defendant kept the combination to the safe in the house on a wall on \\\"a small slip of paper[.]\\\" Wedgeworth thought the paper with the combination might be located \\\"behind the door[,]\\\" but the officers could not locate it. Wedgeworth said, \\\"I know it was here 'cause we just used it recently.\\\" Wedgeworth, saying he also had the combination at his house, retrieved it and provided it to the officers. When the police opened the safe, they found what purported to be a \\\"3-dollar bill\\\" and a derringer pistol with six rounds of ammunition. Other items officers located inside the house included pieces of mail addressed to Defendant, a recent traffic ticket issued to Defendant, items of men's clothing, and photographs of Defendant. The kitchen had food in it, and there were dishes in the sink.\\nAfter the search of the rock house was completed, Officer Hilty interviewed Wedgeworth inside Wedgeworth's mobile home. The officer observed that Wedge-worth's residence was \\\"very dirty[,]\\\" with \\\"a layer of [pet] hair and dirt on everything[,]\\\" including the table and chairs on which Wedgeworth and the officer sat. In contrast, the only dirt-free portion of the room was a wall \\\"lined with long guns, and there were boxes with handguns in [th]em.\\\" The \\\"guns were very pristine as far as they were very clean. They had no dirt on them, no dust on them. Everything else in that room did.\\\" Wedgeworth first told Officer Hilty that he got the firearms from the gun safe in Defendant's rock house \\\"a couple months ago.\\\" He subsequently said that he \\\"got [th]em out of there a month ago.\\\" It did not appear to Officer Hilty that the firearms had been in the mobile home for even one month because of their clean condition. Wedge-worth told Officer Hilty that he did not have any firearms inside the rock house.\\nAt trial, Wedgeworth testified that he had not been in the rock house for \\\"[probably a year or better\\\" before the officers searched it. He told the jurors that he did not go to the rock house \\\"too much\\\" because of the combination of its steps and the fact that he \\\"had a bad foot.\\\" Wedge-worth said he was not involved in retrieving the guns that lined the wall of his mobile home. According to Wedgeworth, a neighbor took the guns out of the rock house, put them in Wedgeworth's pickup truck, and Defendant then drove them to Wedgeworth's mobile home, where the neighbor unloaded the guns and put them along the wall.\\nDefendant testified in his own defense. Defendant knew there were guns inside the rock house when he moved into it. Defendant said that about two or three years before the search warrant was executed, Wedgeworth placed the safe in the rock house and put guns in it. Defendant had seen the derringer and its box prior to his arrest. Defendant said that he had been involved in an altercation with an acquaintance around January 2009, and the man said that he was going to \\\"call the Feds on [Defendant] and he was [going to] get the Sheriff on [Defendant.]\\\" Defendant admitted that the threat to call the authorities was one of Defendant's reasons for moving the guns from the rock house to Wedgeworth's mobile home. Defendant said he \\\"argued with [Wedgeworth] about it. [Wedgeworth] didn't want to move [th]em.\\\" Thereafter, Defendant drove the pickup truck to help his neighbor move the guns from the rock house to Wedgeworth's mobile home.\\nAnalysis\\nA person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and:\\n(1) Such person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony[.]\\nSection 571.070.1. Defendant does not dispute that he was a convicted felon within the meaning of the statute when the derringer was seized. The question we must resolve is whether the jury was presented with sufficient evidence from which it could find, beyond a reasonable doubt, that Defendant had \\\"possession\\\" of the derringer as required by the statute.\\n\\\"Possession\\\" is defined in chapter 556 as\\nhaving actual or constructive possession of an object with knowledge of its presence. A person has actual possession if such person has the object on his or her person or within easy reach and convenient control. A person has constructive possession if such person has the power and the intention at a given time to exercise dominion or control over the object either directly or through another person or persons. Possession may also be sole or joint. If one person alone has possession of an object, possession is sole. If two or more persons share possession of an object, possession is joint[.]\\nSection 556.061(22). Possession of a prohibited object therefore has two distinct elements: (1) \\\"conscious and intentional possession . either actual or constructive\\\"; and (2) \\\"awareness of the presence and nature\\\" of the item being possessed. State v. Purlee, 8B9 S.W.2d 584, 587 (Mo. banc 1992). In the context of possessing a controlled substance, we have reasoned:\\nWhile actual possession alone may provide a reasonable inference of such knowledge, \\\"constructive possession may be shown when other facts buttress an inference of defendant's knowledge of the presence of the controlled substance\\\" and such facts are coupled with \\\"access to and control over the premises where the substance was found.\\\"\\nState v. Gonzalez, 235 S.W.3d 20, 26 (Mo.App. S.D.2007) (quoting Purlee, 839 S.W.2d at 588).\\nExclusive control of the premises where the item is found raises an inference of access and control, but joint control requires further evidence connecting the defendant with the item. See Purlee, 839 S.W.2d at 588. Examples of such additional evidence include incriminating statements or other acts showing a consciousness of guilt by the defendant, routine access to the location of the item, commingling of the item with the defendant's personal effects, and the item being in plain view. See State v. Millsap, 244 S.W.3d 786, 789 (Mo.App. S.D.2008). \\\"The totality of the circumstances is considered in determining whether sufficient additional incriminating circumstances have been proved.\\\" State v. West, 21 S.W.3d 59, 63 (Mo.App. W.D.2000); see also State v. Glowczewski, 168 S.W.3d 100, 105 (Mo.App. S.D.2005).\\nHere, the firearm was locked inside a gun safe located in Defendant's house, and Defendant was not home at the time of the search. At the time the searching officers located the derringer, it was not in Defendant's actual possession because it was not \\\"within [his] easy reach and convenient control.\\\" Section 556.061(22). As a result, the issue is whether the evidence was sufficient to allow a reasonable juror to conclude beyond a reasonable doubt that Defendant had at least joint, constructive possession of the derringer.\\nDefendant directs us to West, 21 S.W.3d at 66 \\u2014 a case involving drug evidence located inside a locked filing cabinet and a locked shed \\u2014 in support of his assertion that \\\"the evidence was insufficient to show an intent to possess or exercise control over the derringer.\\\" The defendant in West shared the property in joint tenancy with another individual, but the court ultimately concluded that although the State sufficiently proved that the defendant had knowledge of the presence and nature of the contraband, it was insufficient to prove that the defendant intended to exercise control over it. Id. at 63, 65. West does not help Defendant because, in that case (among other things), \\\"[t]he state provided no evidence that [defendant, a joint-tenant] had a key to the filing cabinet in the office or to the shed\\\" where the drug evidence was located. Id. at 66.\\nUnlike the defendant in West, Defendant was the sole tenant of the rock house, and he had the equivalent of a key; he had access and control over the safe's contents because he had the combination that unlocked the safe. Wedgeworth told Officer Hilty that Defendant normally kept a copy of the combination on a slip of paper near the safe. When the officers could not locate it, Wedgeworth said, \\\"I know it was here 'cause we just used it recently.\\\" The jury was not required to believe Wedge-worth's subsequent trial testimony that he had been mistaken about Defendant having the combination at the rock house. See Cannafax, 344 S.W.3d at 284. Because Wedgeworth denied any participation in moving the other guns from the rock house to his mobile home, the jury could reasonably infer that the neighbor who moved the guns got the combination to the safe from Defendant. This evidence was sufficient to allow a reasonable juror to find beyond a reasonable doubt that Defendant had access to the derringer in the safe and, at a minimum, exercised joint control over it. See Purlee, 839 S.W.2d at 587.\\nDefendant's point is denied, and the judgment of conviction and sentence is affirmed.\\nDANIEL E. SCOTT, P.J., and JEFFREY W. BATES, J, Concur.\\n. All statutory references are to RSMo. Cum. Supp.2009.\\n. Defendant testified that he did not know how many felony convictions he had, but he estimated that it was \\\"seven or eight.\\\"\\n.Officer Hilty was \\\"[e]mployed [by] the Henry County Sheriff's Office [and] assigned to the ATF [Bureau of Alcohol, Tobacco and Firearms] out of Kansas City.\\\"\\n. Wedgeworth recanted the statement at trial, maintaining that he had \\\"messed up\\\" and \\\"was mistaken\\\" in thinking that Defendant might have kept a copy of the combination at the rock house.\\n. The derringer and ammunition were in an unlocked box that had been specially made to hold the gun. There was writing on the top of the box that said, \\\"Carolyn. Happy 5th Anniversary. Love John.\\\"\\n. Purlee involved a sufficiency of the evidence challenge to a conviction for possession of marijuana. 839 S.W.2d at 587. The parties point to no Missouri case involving the charge of possession of a firearm in violation of section 571.070 with circumstances substantially similar to those present in the instant case. But cf. State v. Langdon, 110 S.W.3d 807, 810, 814 (Mo. banc 2003) (evidence was sufficient for jury to infer that master bedroom was defendant's, and the stolen gun found in dresser drawer in the room was constructively possessed by the defendant as the drawer contained only men's clothing: case reversed on other grounds). Many of Missouri's reported cases discussing unlawful possession of an item, like Purlee, involve the possession of a controlled substance. We see no reason to use a different standard when the item being possessed is a firearm. To the extent the possession of controlled substance cases are factually similar, we rely on their analysis of the issue of possession.\\n. Because proof of joint possession is sufficient, we do not need to determine whether the evidence was sufficient to prove that Defendant had exclusive control over the derringer in the safe.\"}"

mo/7127903.json

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+"{\"id\": \"7127903\", \"name\": \"STATE of Missouri, Appellant, v. SUPERIOR MANUFACTURING, et al., Respondents\", \"name_abbreviation\": \"State v. Superior Manufacturing\", \"decision_date\": \"2012-08-21\", \"docket_number\": \"No. WD 74370\", \"first_page\": \"507\", \"last_page\": \"512\", \"citations\": \"373 S.W.3d 507\", \"volume\": \"373\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:41:11.733630+00:00\", \"provenance\": \"CAP\", \"judges\": \"Division Three: THOMAS H. NEWTON, P.J., JAMES M. SMART, JR., and VICTOR C. HOWARD, JJ.\", \"parties\": \"STATE of Missouri, Appellant, v. SUPERIOR MANUFACTURING, et al., Respondents.\", \"head_matter\": \"STATE of Missouri, Appellant, v. SUPERIOR MANUFACTURING, et al., Respondents.\\nNo. WD 74370.\\nMissouri Court of Appeals, Western District.\\nAug. 21, 2012.\\nLaura E. Elsbury, Jefferson City, MO, for appellant.\\nDavid Gregory Brown, Columbia, MO, for respondents.\\nDivision Three: THOMAS H. NEWTON, P.J., JAMES M. SMART, JR., and VICTOR C. HOWARD, JJ.\", \"word_count\": \"2272\", \"char_count\": \"14098\", \"text\": \"JAMES M. SMART, JR., Judge.\\nThe Secretary of State challenges the trial court's order vacating the Commissioner of Securities' final order to cease and desist and imposing civil penalties and costs upon Superior Manufacturing, Inc., and Kevin W. and Wendy D. Gross, and quashing the garnishment. Because the trial court failed to receive and review the Commissioner's record as required by Chapter 536, RSMo, we reverse.\\nStatement of Facts\\nSuperior Manufacturing, Inc. (\\\"SMI\\\") is a Missouri corporation formed September 1, 2006, by Kevin W. Gross and Wendy D. Gross. According to SMI's filings with the Missouri Secretary of State's Corporations Division, the company was formed for the purpose of manufacturing custom \\\"living quarters for horse trailers.\\\"\\nOn January 23, 2008, after the receipt of complaints and after a preliminary investigation, the enforcement section of the Securities Division of the Office of the Secretary of State submitted a petition for an order to cease and desist and an order to show cause why civil penalties and costs for securities violations should not be imposed against SMI and Kevin and Wendy Gross. The Grosses were properly served by certified mail, return receipt, on January 28, 2008.\\nOn February 1, 2008, after review of the petition, the Commissioner of Securities (\\\"Commissioner\\\") issued an order to cease and desist and to show cause why civil penalties and costs should not be imposed, which was sent to the Grosses by certified mail. On February 25, 2008, notices and copies of the cease and desist order were returned \\\"unclaimed\\\" to the Commissioner. That same day, the Commissioner was served with substitute process pursuant to section 409.6-611(b), RSMo (cum.supp. 2007), and notices of the service and copies of the process were sent to the Grosses at their last known address. On February 29, 2008, the notices of service sent to the Grosses were returned \\\"refused\\\" to the Commissioner. On March 18, 2008, the enforcement section was contacted by an attorney, Thomas W. Millington of Springfield, representing the respondents, who asked that the Commissioner withhold a final order until April 15, 2008, to allow the parties to reach a settlement. On April 1st, Kevin Gross received certified letters from the post office and signed the return receipts in his own behalf and on behalf of Wendy Gross.\\nPresumably the settlement talks were unfruitful. On April 11, 2008, respondents' counsel wrote the chief enforcement counsel indicating that his clients Kevin and Wendy Gross \\\"would not be defending\\\" against the complaints against them. Counsel's letter said they had \\\"authorized [him] to inform [the chief enforcement counsel] of this.\\\"\\nSeveral days later, on April 24, 2008, the Commissioner issued a final order to cease and desist and an order imposing civil penalties and costs (\\\"final order\\\"). The final order imposed civil penalties against the respondents. Each respondent was to pay five thousand dollars ($5,000) as civil penalties, and the respondents were to pay an additional sum of seven thousand three-hundred thirty dollars ($7,330) as reimbursement for the costs of the investigation and administration of the matter. The Commissioner sent a copy of the order to Kevin and Wendy Gross, certified mail, return receipt requested.\\nThereafter, the Secretary of State filed the final order with the Cole County Circuit Court pursuant to section 409.6-604(f). On July 9, 2010, the Secretary of State sought a garnishment in execution of the judgment. The garnishments/executions were issued on July 13th and served on July 16th. On August 18, 2010, the Grosses filed a motion to quash the garnishment and vacate the underlying judgment. After the parties filed suggestions, the court set the matter for oral argument.\\nOn November 19, 2010, the parties appeared by counsel for a hearing on the motion to quash. The Grosses were not represented by Mr. Millington but, instead, had retained new counsel. The Secretary of State proffered a certified copy of the Commissioner's record, which the court refused to receive. The Grosses presented no evidence but argued that their rights had been violated because they had no notice and no opportunity to defend against the assessments. The court took the matter under advisement. On February 4, 2011, the court entered an order vacating the judgment and quashing the garnishment. The Secretary appeals.\\nDiscussion\\nIn point one, the Secretary contends that the court erred in granting the motion to vacate the Commissioner's final order. The Secretary contends that the court had no authority to vacate the order because the Grosses did not timely seek judicial review. In point two, the Secretary contends that the trial court erred in granting the motion to vacate the Secretary's judgment because the Grosses failed to present any evidence in support of their collateral attack on the Commissioner's final order. We consider the two points together.\\nStandard of Review\\n\\\"Ordinarily, we review the circuit court's ruling on a motion to set aside a judgment . for an abuse of discretion. However, whether a judgment should be vacated because it is void is a question of law that we review de novo; we give no deference to the circuit court's decision.\\\" Kerth v. Polestar Entm't, 325 S.W.3d 373, 378 (Mo.App.2010) (internal citations omitted). De novo review means that we will apply the same standard that applied below. Am. Nat'l Prop. & Cas. Co. v. Ensz & Jester, P.C., 358 S.W.3d 75, 80 (Mo.App.2011). Courts favor finality of judgments, so the concept of a void judgment is narrowly restricted. Forsyth Fin. Grp., LLC v. Hayes, 351 S.W.3d 738, 740 (Mo.App.2011).\\nAnalysis\\nThe Missouri Securities Act of 2003 is administered by the Commissioner of Securities, who is appointed by and operates under the direction of the Secretary of State. \\u00a7 409.6-601(a). There is no dispute that pursuant to section 409.6-604(f), the Secretary of State is authorized to file a final order issued under the Securities Act, and, upon filing, the final order has the status of a judgment and may be enforced in the same way as a final order of the court.\\nIn this case, after the Secretary had filed the final order of the Commissioner as a judgment, and then had applied for a writ of garnishment against Kevin and Wendy Gross, the Grosses moved to quash the garnishment and vacate the judgment on the ground that the judgment was \\\"nonexistent\\\" for lack of personal service on the defendants. They contended that the execution of the garnishments would constitute an unlawful taking of property in violation of article 1, section 10 of the Missouri Constitution and a violation of the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution.\\nThe motions filed by the Grosses constitute a collateral attack on the judgment, which is another way of saying that these motions constitute an (untimely) attempt at judicial review. Accordingly, the requirements of section 536.130 related to judicial review of an administrative proceeding are applicable to the Grosses' motions.\\nCounsel for the Grosses alleged in their unverified motions that the final order fails to show that Kevin Gross ever received the notices mailed February 1, 2008 and February 25, 2008. The Secretary, in response, pointed out that pursuant to section 409.6-611(b), the substitute service on the Commissioner, also on February 25th, was legally sufficient to constitute service on the movants. Because of the type of unlicensed conduct cited in the initial and final orders of the Commissioner, the Secretary asserts that section 409.6-611(b) governs the service of process on the mov-ants. Section 409.6-611(b) states in pertinent part:\\nIf a person . engages in an act, practice, or course of business prohibited or made actionable by this act or a rule adopted or order issued under this act and the person has not filed a consent to service of process under subsection (a), the act, practice, or course of business constitutes the appointment of the commissioner as the person's agent for service of process in a noncriminal action or proceeding against the person....\\n(Emphasis added.) In this case, the Grosses had not filed a consent to service of process in accordance with section 409.6-611(b). Accordingly, the Secretary argues that the service of process on the Commissioner (with the Commissioner's attempt to provide actual notice by mail at the Grosses' last known address) was legally sufficient to effect service of process on the Grosses.\\nThe Secretary also noted that the Commissioner had attempted to provide the Grosses with actual notice of the final order by certified mail, and that the final order shows that the Grosses had actual notice of the proceeding in that the final order shows the Grosses had retained counsel and discussed settlement with the chief enforcement counsel. The parties briefed the issue of whether personal service of process is necessary to the enforcement of the final order under the Securities Act. The Secretary also asked the court to receive in evidence documents from the file of the Commissioner of Securities showing that personal service of the cease-and-desist order was obtained by the Cheney County sheriffs office on the three respondents on May 6, 2008. The court declined to receive the Commissioner's certified record, and on February 4, 2011, the circuit court entered its order quashing the writ of garnishment and impliedly vacating the judgment. The Secretary appeals that order.\\nThe final order had a legal presumption of validity under the statute. \\u00a7 409.6 \\u2014 604(f); Ret. Bd. of Police Ret. Sys. of Kansas City, Mo. v. Kansas City, Mo., 224 S.W.2d 623, 628-29 (Mo.App.1949) (finding the final judgments issued by quasi-judicial bodies [such as the Commissioner of Securities here] are presumed valid). A judgment is presumed valid until the contrary is properly shown.\\nA motion to quash a garnishment for alleged invalidity of the judgment . is a collateral attack on the judgment and will lie only where the record affirmatively discloses that the judgment is void. But such a finding will not be lightly made.And there is . a strong[] presumption that a judgment rendered by a court of competent jurisdiction is valid and obtained by proper means. The existence of every fact essential for the court to have rendered a valid decree is presumed, with the burden on the party contesting the judgment to overcome such presumptions.\\nCloyd v. Cloyd, 564 S.W.2d 337, 342 (Mo.App.1978) (emphasis added) (internal citations omitted). The trial court failed to take that presumption of validity into account in this case. The final order of enforcement was subject to collateral attack, but the burden of proof in the collateral attack was on the Grosses. Wright v. Bartimus Frickleton Robertson & Gorny P.C., 364 S.W.3d 558, 565 (Mo.App.2011) (\\\"[T]he burden is on the party contesting the judgment to overcome the presumption [of validity].\\\").\\nThe judgment cannot be vacated on grounds of violating constitutional due process rights without there being some evidence in the record that the Grosses' rights were violated, and that they thus had standing to complain. Although their unsworn motions and arguments complained that they had no notice, actual or otherwise, the trial court could not reach that conclusion without the receipt of evidence. Had the trial court scheduled an evidentiary hearing, the Grosses, as the movants, would have been required to present evidence that they were somehow deprived of notice of the ruling and an opportunity to apply for judicial review. The Secretary would also have been entitled to cross examine the Grosses and to present evidence.\\nThe Missouri Securities Act incorporates the procedures of the Administrative Procedures Act, Chapter 536, RSMo. \\u00a7 409.6-609(a). Those procedures require a party seeking judicial review to file the record or to request that the agency file the record with the court. \\u00a7 536.130.4. The Grosses did not file a copy of the Commissioner's record with the trial court. The Secretary attempted to proffer the certified documents from the Commission's file that would have clarified matters, but the trial court rejected the evidence. It was error for the court to shift the burden of proof to the Secretary, and error for the court to reject the evidence proffered by the Secretary to form a proper record.\\nConclusion\\nFor the foregoing reasons, we reverse the trial court's judgment and remand the matter to the trial court. On remand, the court may receive evidence, including any evidence to be presented by the Grosses, and must receive and consider the record of the administrative proceeding into evidence pursuant to section 536.130. The judgment of the trial court is reversed, and the case is remanded for further proceedings.\\nAll concur.\\n. Statutory citations are to the Revised Statutes of Missouri (RSMo) 2000, unless otherwise indicated.\\n. Some of the pertinent facts are drawn from the certified record of the Commissioner of Securities, which the trial court refused to allow in evidence but should have allowed in evidence pursuant to section 536.130.\\n. The Grosses contend that the record in the circuit court consisted of only the final order of the Commissioner. While the parties may agree to an abbreviated record or a statement of the case under section 536.130, there is no evidence that this is what happened. The Secretary's unsuccessful effort to place certified documents from the Commission's file before the court suggests otherwise. The record before the agency should have been filed (and accepted) in the reviewing court prior to any review of the final order. \\u00a7 536.130.1.\"}"

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+"{\"id\": \"7299950\", \"name\": \"Ray D. REED, Respondent, v. ASSOCIATED ELECTRIC COOPERATIVE, INC., Appellant, and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondent\", \"name_abbreviation\": \"Reed v. Associated Electric Cooperative, Inc.\", \"decision_date\": \"2009-07-09\", \"docket_number\": \"No. SD 29324\", \"first_page\": \"693\", \"last_page\": \"702\", \"citations\": \"302 S.W.3d 693\", \"volume\": \"302\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:22:40.698729+00:00\", \"provenance\": \"CAP\", \"judges\": \"LYNCH, C.J., and RAHMEYER, J, concur.\", \"parties\": \"Ray D. REED, Respondent, v. ASSOCIATED ELECTRIC COOPERATIVE, INC., Appellant, and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondent.\", \"head_matter\": \"Ray D. REED, Respondent, v. ASSOCIATED ELECTRIC COOPERATIVE, INC., Appellant, and Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondent.\\nNo. SD 29324.\\nMissouri Court of Appeals, Southern District, Division Two.\\nJuly 9, 2009.\\nJoseph M. Page, Jefferson City, for Appellant.\\nRonald L. Little, Little, Schellhammer, Richardson & Knowlan Law Offices, P.C., for Respondent Ray Reed.\\nJeremiah W. (Jay) Nixon, Atty. Gen., Frank A. Rodman, Asst. Atty. Gen., Jefferson City, for Respondent Second Injury Fund.\", \"word_count\": \"4402\", \"char_count\": \"27684\", \"text\": \"JOHN E. PARRISH, Judge.\\nAssociated Electric Cooperative, Inc., (employer) appeals the Final Award Allowing Compensation of the Labor and Industrial Relations Commission (the commission). The commission found that Ray Reed (claimant) was permanently and totally disabled as a result of an injury sustained while working for employer; that the injury resulted from an accident that occurred September 26, 2001; that the injury was not the result of a pre-existing disability. This court affirms.\\nClaimant began working for employer in 1990. He worked as a utility operator, an auxiliary operator, a deck hand, and, finally, as a yard equipment operator. He began working as a yard equipment operator in 1994. He worked in that capacity until June 9, 2002. His duties as yard equipment operator involved operating heavy machinery including scrapers, doz-ers, trailer trucks, loaders, and backhoes.\\nOn September 26, 2001, claimant was injured at work. He was loading coal in a scraper. He explained what happened:\\n. [Wjhen I got to the bottom of the pile, I looked back and there was smoke rolling out of the rear engine. So I headed off, I kicked the gate open. I pulled the extractor, I extracted all the coal on the way to a water outlet. When I got to the water outlet, I got out of the scraper, I walked from the front of the scraper to the back of the scraper. I climbed up on top of the back of the scraper and shielding myself behind the radiator, I peered over into the engine to see what was happening. I seen a fuel line had \\u2014 -metal fuel line had broke and it was squirting diesel on to the engine and the smoke I was seeing was the diesel that was vaporizing. At that point it scared me pretty good because I could see some hot coal on edges around the engine.\\nClaimant was asked what he did. He answered:\\nWhat I did was I bended down and grabbed ahold of this rod and I reached in to get the throttle level to kill the engine to kill the flow. As I did, I couldn't reach the lever so I pulled my body up with my right hand as I was reaching to the left and pushing forward with my right foot off of a piece of metal there. Wben I did, I reached the lever, my foot slipped off and I twisted my back. At that specific time it felt like I have sprung my ankle. I went ahead, shut the engine down, I crawled down and I went and got the water hose trying to walk off what I thought was a sprained ankle.\\nClaimant went home, took a bath, and lay down. He began experiencing pain in his lower back and down his right leg to the top of his foot. This occurred on a Wednesday. Claimant was not scheduled to work the following Thursday or Friday. On Thursday he continued to experience pain down his right leg and lower back and foot. It was worse on Friday. Claimant stayed home on Friday and tried to rest in an attempt to be able to return to work on Saturday. On Saturday claimant called employer and reported that he was unable to work due to the accident he had at work the previous Wednesday. Claimant asked if employer wanted him to go to the company doctor. The safety coordinator told him to see whoever he wished.\\nClaimant sought treatment at the emergency room at Southeast Hospital in Cape Girardeau. He was examined, x-rayed, and given a prescription for medication. He was diagnosed as having acute para-lumbar strain with muscle spasms and right leg radiculopathy. Claimant was told to see a \\\"follow-up doctor\\\" if he did not get better. Claimant did not feel better. He consulted Dr. Deborah Thomas. She examined claimant and ordered an MRI. The MRI revealed \\\"mild multilevel changes with a small right foraminal disc extrusion at L4-5 involving the right L4 nerve root.\\\"\\nEmployer arranged for claimant to see Dr. Scott Gibbs, a neurosurgeon. Dr. Gibbs examined claimant and reviewed the earlier MRI. His observation was that the MRI revealed a \\\"broad-based disc bulge\\\" at L4-5 and a \\\"very slight broad-based disc bulge with no deformity of the exiting nerve roots\\\" at L5-S1. He stated a diagnostic impression from the MRI findings of \\\"a right L4-5 foraminal herniated nucleus pulposus and this is superimposed on lateral recess stenosis at this level.\\\" He stated the impression that claimant's lower extremity pain and paresthetic numbness and tingling appeared to follow an L5 der-matomal pattern. Dr. Gibbs prescribed medication and explained that should conservative management of claimant's condition fail, claimant might be a good candidate for surgery. Claimant was ordered to remain off work.\\nClaimant ultimately underwent surgery. Dr. Gibbs preformed lumbar surgery December 13, 2001 \\u2014 a bilateral interior L4 and superior L5 laminectomy and medial facetectomy with foraminotomy. Claimant continued to experience numbness in his right leg and foot after surgery.\\nDr. Gibbs released claimant to return to work with restrictions on February 11, 2002. Claimant had a follow-up appointment with Dr. Gibbs on March 5, 2002. Claimant was still experiencing numbness in his right leg and calf. At work, he avoided heavy lifting or other duties that would put undue strain on his back. At the March 5 appointment, Dr. Gibbs found claimant at maximum medical improvement. He released claimant to return to work without restrictions and discharged claimant from his medical care.\\nClaimant's numbness in his right leg and foot gradually increased after returning to work. Use of his foot in operating machines and vibrations from the machines intensified his symptoms. He again developed lower back pain. He contacted Dr. Gibbs' office to request prescription medication. His request for medication was not granted, and Dr. Gibbs would not see claimant again unless a claim for a second injury was filed.\\nClaimant's pain and numbness progressively increased. On June 9, 2002, claimant told his supervisor of his discomfort and said he was going to talk to employer's yard superintendent. The supervisor told claimant not to talk to the superintendent but to see a doctor.\\nClaimant saw Dr. Kimberly Schisler on June 10, 2002. She took claimant off work. She provided claimant with a prescription for medication and ordered physical therapy. Claimant had follow-up visits with Dr. Schisler on June 17 and on July 1. There was no change in his symptoms. Dr. Schisler sent claimant for an MRI. After the MRI, she told claimant she thought the pain he was experiencing was associated with the September 26, 2001, injury. Dr. Schisler noted that claimant could not return to work due to his level of discomfort and numbness. She continued him off work until August 1, 2002.\\nClaimant reported the information to employer. He asked if they would provide additional treatment. Employer declined claimant's request for further treatment. Claimant was told to seek medical treatment on his own and use his medical insurance.\\nClaimant next contacted Dr. Alan Chen. After having examined and agreed to treat claimant, Dr. Chen referred claimant to Dr. Matthew Gornet, an orthopedic surgeon. Claimant first saw Dr. Gornet in September 2002. After reviewing Dr. Gibbs' treatment notes and the previous MRI results, Dr. Gornet had claimant undergo a CT-myelogram. Dr. Gornet concluded that claimant suffered from post-discectomy back pain related to his initial September 26, 2001, work-related injury. He found claimant to be temporarily totally disabled. Dr. Gornet recommended a lumbar fusion as claimant's only option.\\nSurgery was scheduled consisting of two procedures \\\"a couple or a day apart or a day between them.\\\" The surgery, however, was cancelled. Claimant explained what occurred after he returned from the appointment with Dr. Gornet:\\nWhen I got back home that afternoon, on my caller I.D., two hours and about 30 minutes later that [sic] my doctor's appointment with Dr. Gornet, Dr. Gibbs called and said workers' comp or his\\u2014 not Dr. Gibbs personally, but his receptionist, that they wanted to line me up with some physical therapy.\\nClaimant cancelled his appointment with Dr. Gornet and took the physical therapy that Dr. Gibbs offered. Dr. Gibbs provided no treatment other than the physical therapy.\\nClaimant received treatment for about a month. It provided no relief. Dr. Gibbs then had claimant undergo a functional capacity test. The physical therapist who performed the test found that claimant displayed limited functional capacity, primarily secondary to \\u2022 subjective complaints of pain and inadequate functional range of motion and weakness. Claimant exhibited \\\"severe over-guarding behaviors\\\" that did not allow the therapist to complete portions of the evaluation involving repetitive tasks. Claimant could not tolerate extended periods of sitting, standing, or walking. He was unable to lift objects from the floor.' The maximum lifting weight he could tolerate was nine pounds. The test verified that claimant could not meet the lifting and climbing requirements of his job.\\nClaimant did not hear back from Dr. Gibbs' office after the functional capacity evaluation. When he called Dr. Gibbs' office, he was told he had been released from the doctor's care. When he contacted employer, claimant was told employer was not providing further treatment. He then returned to Dr. Gornet. Claimant informed Dr. Gornet that employer had denied further treatment. Dr. Gornet was also notified by employer's insurance carrier that further treatment would not be provided.\\nDr. Gornet performed a two-part anteri- or and posterior lumbar interbody fusion at levels L2-5 to claimant's back on August IB and 15, 2003. A CT scan indicated the procedure was successful. Claimant reported significant improvement following his surgery by Dr. Gornet. He stated he was walking better and taking minimal pain medication. Claimant reported some continued \\\"burning\\\" in both legs after prolonged periods of sitting or walking. Dr. Gornet attributed the burning, or numbness, to permanent nerve dysfunction.\\nDr. Gornet released claimant \\\"for sedentary work\\\" as of February 23, 2004, with restrictions of no lifting greater than ten pounds, no repetitive bending, and the ability to alternate between sitting and standing at claimant's discretion. Dr. Gor-net stated that claimant's work restrictions were permanent.\\nClaimant returned to Dr. Gornet for a follow-up visit in August 2005. At that time, Dr. Gornet suggested that claimant would not be able to complete an eight-hour workday, even with restrictions. His opinion was that claimant would not be able to return to gainful employment given his severe restrictions, symptoms, and education. Dr. Gornet saw claimant again in August 2006. Claimant reported that his symptoms had improved greatly since the surgery Dr. Gornet had performed, but he experienced pain when he was involved in significant activity. Dr. Gornet's opinion was that claimant's level of functioning at that time was permanent. He attributed claimant's symptoms to the September 26, 2001, injury.\\nClaimant continued to see Dr. Chen throughout 2005, 2006, and 2007. Dr. Chen's treatment of claimant was for depression, blood pressure, and pain management. Following the filing of his workers' compensation claim, claimant was evaluated by other physicians, a psychologist, and vocational experts.\\nThe commission found that claimant sustained an accident and resulting injuries arising out of and in the course of his employment on September 26, 2001; that claimant is permanently and totally disabled as a result of that accident. The commission found that claimant had no disability pre-existing that date; that the September 26, 2001, injury was a substantial factor in causing claimant's low back injury, pain disorder, mood disorder, depression, resulting medical conditions, disability, and need for treatment from the date of the accident through March 5, 2002, and beginning again June 9, 2002. Claimant was found to be permanently and totally disabled. Claimant was awarded compensation in the amount of $220,935.48 representing $148,461.55 for previously incurred medical expenses; $72,323.50 for additional temporary total disability; and $150.43 for underpayment of temporary total disability.\\nOn appellate review, a court must examine the whole record to determine if the Commission's award is supported by competent and substantial evidence. Hampton [v. Big Boy Steel Erection, 121 S.W.3d 220] at 222-223 [ (Mo.banc 2003) ]. In reviewing whether awards of the Commission are against the overwhelming weight of the evidence, the power of the court does not extend to reweighing the evidence. Id. Instead, the appellate court must determine whether the Commission could have reasonably made its findings and reached its result upon consideration of all of the evidence before it. Totten v. Treasurer of State, 116 S.W.3d 624, 629 (Mo.App. E.D.2003).\\nAdditionally, \\\"findings of fact made by the [C]oramission within its powers shall be conclusive and binding.\\\" Section 287.495.1 [RSMo 2000], Thus, we defer to the Commission on issues concerning credibility and the weight to be given conflicting evidence. Totten at 627. However, we independently review questions of law without deference to the Commission's findings. Id.\\nHenley v. Tan Co., Inc., 140 S.W.3d 195, 198 (Mo.App.2004).\\nEmployer's first point on appeal is directed to the commission's award of $148,461.55 for previously incurred medical expenses. Employer argues that the award \\\"is erroneous and against the weight of the evidence in that the medical procedures were unauthorized and [claimant's] primary treating physician testified that the procedures were unnecessary and not medically warranted and therefore the employer had met its obligation and requirement of providing medical aid to cure and relieve the effects of the injury and its refusal to pay for unauthorized and ultimately unnecessary treatment was within its discretion.\\\"\\nEmployer argues that Dr. Gibbs was claimant's primary treating physician; that Dr. Gibbs concluded that claimant had reached maximum medical improvement on March 5, 2003; that the medical care provided claimant after that date was for a nonwork-related degenerative condition. Employer contends that the medical care provided after that date by Dr. Gornet was, therefore, not compensable.\\nClaimant returned to work after Dr. Gibbs found that claimant had attained maximum medical improvement. Claimant was, however, still experiencing pain and numbness. Those symptoms increased to the point that, on June 9, 2003, claimant could no longer perform his work duties. There was evidence that, notwithstanding the difficulty claimant continued to experience, Dr. Gibbs office refused to provide further treatment; that claimant was instructed to seek medical care using his personal medical insurance. Claimant did so and was referred to Dr. Gornet. Dr. Gornet provided medical care for claimant from September 2002 to August 2006, including performing a two-stage lumbar surgery in August 2003. Dr. Gor-net testified that claimant's continued low back pain and lower right extremity numbness was related to the September 26, 2001, injury. He stated that the September 26, 2001, injury was a substantial factor with respect to claimant's need for the surgery he performed; that the medical treatment he provided claimant was medically necessary and reasonable.\\nThe commission affirmed the award and decision of the administrative law judge. It attached the administrative law judge's award and decision and incorporated it by reference as part of the commission's Final Award Allowing Compensation. The decision addressed the necessity of the treatment provided claimant after Dr. Gibbs concluded that claimant had attained maximum medical improvement from the September 26, 2001, injury. It states:\\nIt was Dr. Gornet's opinion that [claimant's] October 4, 2001 MRI showed disc protrusions and foraminal stenosis at L3-4, L4-5, and L5-S1. It was Dr. Gornet's opinion that the steno-sis was made symptomatic due to the September 26, 2001 injury. It was Dr. Gornet's opinion that [claimant's] symptoms and problems were attributable and related to the September 26, 2001 back injury. Dr. Gornet stated that Dr. Gibbs' surgery at L4-5 initially helped him. [Claimant] continued to have numbness after Dr. Gibbs['] surgery which gradually worsened. When Dr. Gornet saw [claimant] on September 9, 2002, it was [his] opinion that [claimant] suffered from post discectomy back pain and continued foraminal stenosis. The symptoms continued to be similar in nature and character to his original problem. Dr. Gornet stated that his diagnosis attributed the pain to his initial work injury and the continuation of the same problems....\\nDr. Gornet testified that Dr. Gibbs' surgery only addressed the nerve compression but did not address the structural aspect of his spine. By removing the bone to help free up his nerves, it made the structure and the stability of the spine weaker. By not addressing the structural problem and making the spine structurally weaker or less stable, [claimant's] symptoms increased in severity. It was Dr. Gornet's opinion that it was the same problem the employee initially had from his September 26, 2001 injury, and his current symptoms were directly causally connected to that work related injury.\\nDr. Gornet stated that his pre-surgery testing showed disc protrusions which are first grade disc herniations. It was his opinion that the only option for the employee was a fusion from L2-L5. During surgery for discogenic post dis-cectomy low back pain, Dr. Gornet found a small central annular tear at L2-3; a central disc bulge and a small central disc herniation at L3^4; and a central annular tear and small central disc herniation at L4-5. The disc material that was mechanically injured at the time of his accident was removed. Dr. Gornet stated that the fusion did not extend to the L5-S1 level. It was Dr. Gornet's opinion that the injury of September 26, 2001 was a substantial factor if not the dominant factor in the need for the surgery he performed on [claimant]. It was his opinion that all of the treatment that he provided was reasonable and necessary and related to the September 26, 2001 injury. It was Dr. Gornet's opinion that [claimant's] current symptoms were directly causally connected to his initial work related injury on September 26, 2001.\\nWhen asked if the fusion surgery by Dr. Gornet was the result of the an [sic] injury sustained at [employer], Dr. Gibbs answered that it was not an operation that he would have offered [claimant], and it was his opinion that the fusion surgery was not indicated. Dr. Gibbs stated that [claimant] did not realize any significant improvement in his symptoms as a result of the fusion and it was his opinion that the surgery did not help [claimant].\\nThe commission accepted Dr. Gornet's opinion. It did not find Dr. Gibbs' assessment credible. Again, adopting the opinion of the administrative law judge, the commission concluded:\\nThe evidence that Dr. Gornet's fusion surgery helped [claimant's] symptoms and condition is overwhelming. Dr. Gornet's medical records up to a year after the surgery show that [claimant's] back and leg symptoms were improved, he was walking better, was significantly improved from his preoperative state, and was grateful for the surgery and was pleased with his progress. Dr. Gor-net's records at two and three years after the surgery noted that [claimant] was grateful for the help and he had definitely improved from the surgery. Medical records from a CT scan 6 months after surgery and from Dr. Chen's 8 months after the surgery, showed that his symptoms had improved, he was better, was able to walk and his back pain was reduced. [Claimant] testified that prior to Dr. Gornet's surgery, he had extremely bad back pain with numbness and burning in his legs. He was in a deep, deep depression about his situation. The surgery by Dr. Gor-net reduced his back pain and helped with his depression. [Claimant] stated Dr. Gornet \\\"saved his life\\\", helped with his pain and his life, and gave him hope. [Claimant's wife] testified that the surgery improved the condition of [claimant] and saved him.\\nDr. Gornet's opinion was found more credible than the opinion of Dr. Gibbs regarding medical causation and regarding the appropriate treatment and surgery after June 9, 2002. \\\"The weight to be given evidence rests with the Commission and it alone determines the credibility of witnesses.\\\" Thornton v. Haas Bakery, 858 S.W.2d 831, 833 (Mo.App.1993). \\\"When there is competent evidence that conflicts, resolution of the conflict lies with the commission. Its choice is binding on this court.\\\" Lingerfelt v. Elite Logistics, Inc., 255 S.W.3d 1, 6 (Mo.App.2008).\\nClaimant sought treatment from Dr. Gornet only after claimant requested that employer continue to provide treatment, but employer declined to do so. \\\"If the employer is on notice that the employee needs treatment and fails or refuses to provide it, the employee may select his or her own medical provider and hold the employer liable for the costs thereof.\\\" Martin v. Town and Country Supermarkets, 220 S.W.3d 836, 844 (Mo.App.2007). That was the situation in this case.\\nA review of the whole record discloses that the commission's findings regarding employer's responsibility and liability for claimant's medical treatment following Dr. Gibbs' dismissal of claimant as his patient and its award for previously incurred medical expenses is supported by competent and substantial evidence. Point I is denied.\\nPoint II contends the commission erred in awarding $72,323.50 for additional temporary total disability benefits; that \\\"the decision is against the substantial weight of the evidence in that [claimant] had been released from authorized care and treatment and had reached maximum medical improvement on March 5, 2002, when he was released to return to work by Dr. Gibbs.\\\" Employer argues that the additional period for which compensation was awarded, from June 10, 2002, through August 23, 2004, was for a period of time during which \\\"[claimant] was under the unauthorized care and treatment of Dr. Gornet and the employer had no notice nor reason to believe such care and treatment was necessary for [claimant's] work related injury.\\\"\\nAs discussed in addressing Point I, claimant sought treatment from Dr. Gor-net only after requesting that employer continue to provide treatment. Employer refused to provide that treatment, although, as the commission found, claimant was in need of additional treatment as a result of the September 26, 2001, work accident. The commission found that as a result of the September 26, 2001, accident, claimant was unable to continue his work during the time in question.\\nAs discussed regarding Point I, claimant was entitled to procure independent medical care, as he did, when employer refused to provide the continued medical treatment that was needed. Martin v. Town and Country Supermarkets, supra. Employer had notice and reason to believe additional treatment was necessary. Having concluded that the award for additional medical care was warranted, it follows that the disability for which care was required, which resulted in claimant being unable to work, is, likewise, compensable.\\nThe commission found, in adopting the award and decision of the administrative law judge, \\\"that from June 10, 2002 through August 23, 2004, [claimant] was not able to return to work, had not reached the point where further progress was not expected, and no employer in the usual course of business would reasonably be expected to employ the claimant in his physical condition.\\\" See Brookman v. Henry Transp., 924 S.W.2d 286, 290 (Mo.App.1996). It found that claimant was, therefore, entitled to temporary total disability for that period of time. The commission's finding is supported by competent and substantial evidence. Point II is denied.\\nEmployer's Point III argues:\\nThe Commission erred in awarding permanent and total disability benefits . solely against the employer because \\\"it is against the weight of the evidence in that both the employer's designated treating physician[,] Dr. Gibbs[,] and [claimant's] own expert[,] Dr. Gornet, testified that [claimant] could perform sedentary work with the ability to rise from the sedentary position and change positions frequently and the medical records and [claimant's] own testimony indicate that there was a second work related accident that should have shifted the burden of ongoing permanent and total disability benefits onto the Second Injury Fund.\\nThe commission addressed the matter of claimant's total disability by adopting and incorporating the administrative law judge's determination in its final award. The testimony and medical reports of numerous experts who examined and treated claimant were reviewed in commendable detail in addition to the testimony of claimant, his wife, and son. The opinions of Dr. Gornet, Dr. Stillings, Dr. Cohen, Mr. Stock, and Mr. England were found more credible than the others who addressed the issue of disability.\\nThe commission also concluded \\\"that [claimant], his wife and son were very credible witnesses on the issue of permanent total disability.\\\"\\nTheir testimony concerning the impact his injuries have had on [claimant's] daily ability to function either at home or in the work place. Their testimony in this regard is very credible and supports a conclusion that [claimant] will not be able to compete in the open labor market. With his physical and mental limitations, restrictions and pain it is extremely unlikely that any employer would reasonably be expected to hire [claimant] in his present physical and mental condition.\\nIt found \\\"that [claimant] is unable to compete in the open labor market and therefore is permanently and totally disabled.\\\" The commission further found:\\nAlthough [claimant] in this case had several pre-existing conditions including stenosis and sleep apnea, those conditions were asymptomatic, not disabling, and were not a hindrance or hindrance [sic] or obstacle to his employment or reemployment. The testimony of [claimant], his \\\"wife, and his son; and the credible medical and vocational evidence overwhelmingly support a finding that [claimant's] permanent total disability was caused solely by his September 26, 2001 injury. It is clear that he is [sic] not working is due to the severe pain he is experiencing in his low back and legs along with the depression that resulted from this severe pain which is all related to the September 26, 2001 accident alone and of itself.\\nThe commission concluded that the Second Injury Fund had no liability.\\nCredibility of the testimony, including medical opinions, is for the commission's determination. Lingerfelt v. Elite Logistics, supra; Gaston v. Steadley Co., 69 S.W.3d 158, 159 (Mo.App.2002). Considering the whole record, the determination that claimant is permanently disabled and that his disability was a result of the September 26, 2001, accident is supported by competent and substantial evidence. Point III is denied. The award of the commission is affirmed.\\nLYNCH, C.J., and RAHMEYER, J, concur.\"}"