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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.\"}"
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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.\"}"
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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).\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/mo/10118553.json b/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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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+"{\"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.\"}"
\ No newline at end of file
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+"{\"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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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diff --git a/mo/11328937.json b/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.\"}"
\ No newline at end of file
diff --git a/mo/11593511.json b/mo/11593511.json
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--- /dev/null
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@@ -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).\"}"
\ No newline at end of file
diff --git a/mo/11614228.json b/mo/11614228.json
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+"{\"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.\"}"
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diff --git a/mo/11747795.json b/mo/11747795.json
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index 0000000000000000000000000000000000000000..1fbd9bf097e4b8e8e1b80def8ccc989a98cce338
--- /dev/null
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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.\"}"
\ No newline at end of file
diff --git a/mo/11918771.json b/mo/11918771.json
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index 0000000000000000000000000000000000000000..758d3f1946ba3510f6f65823c99c1d24e254f18f
--- /dev/null
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@@ -0,0 +1 @@
+"{\"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.\\\"\"}"
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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.\"}"
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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).\"}"
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diff --git a/mo/12371274.json b/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).\"}"
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diff --git a/mo/12373341.json b/mo/12373341.json
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+"{\"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).\"}"
\ No newline at end of file
diff --git a/mo/1315779.json b/mo/1315779.json
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index 0000000000000000000000000000000000000000..9112bac9a07f00af0f8ecb3fc9b969cfc5a437e2
--- /dev/null
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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.\"}"
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diff --git a/mo/1375028.json b/mo/1375028.json
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index 0000000000000000000000000000000000000000..3cfac6b28d6a2eeef629371289516d03117bb425
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\\\"\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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.\"}"
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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).\"}"
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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.\"}"
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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.\"}"
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+"{\"id\": \"7315815\", \"name\": \"David G. RIES, Plaintiff-Respondent, v. Julie SHOEMAKE, as Personal Representative of the Estate of William McCleney, Defendant-Appellant\", \"name_abbreviation\": \"Ries v. Shoemake\", \"decision_date\": \"2012-02-14\", \"docket_number\": \"No. SD 30667\", \"first_page\": \"137\", \"last_page\": \"146\", \"citations\": \"359 S.W.3d 137\", \"volume\": \"359\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T19:20:12.777360+00:00\", \"provenance\": \"CAP\", \"judges\": \"SCOTT, C.J., and FRANCIS, J., Concur.\", \"parties\": \"David G. RIES, Plaintiff-Respondent, v. Julie SHOEMAKE, as Personal Representative of the Estate of William McCleney, Defendant-Appellant.\", \"head_matter\": \"David G. RIES, Plaintiff-Respondent, v. Julie SHOEMAKE, as Personal Representative of the Estate of William McCleney, Defendant-Appellant.\\nNo. SD 30667.\\nMissouri Court of Appeals, Southern District, Division Two.\\nFeb. 14, 2012.\\nRobert Z. Oberzalek, Birch Tree, MO, for Appellant.\\nRaymond M. Gross, Gainesville, MO, for Respondent.\", \"word_count\": \"3847\", \"char_count\": \"23539\", \"text\": \"JEFFREY W. BATES, Judge.\\nDavid Ries (Ries) sued William McCle-ney (McCleney) for breaching a real estate contract and making fraudulent misrepresentations about the property. Following a bench trial, the court entered judgment in Ries' favor. Prior to the entry of judgment, McCleney died. Julie Shoemake, the personal representative of McCleney's estate (Appellant), was substituted as the party-defendant and has appealed the judgment.\\nAppellate review is governed by Rule 84.13(d) and the principles set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). \\\"We must affirm the trial court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.\\\" Salem United Methodist Church v. Bottorff, 138 S.W.3d 788, 789-90 (Mo.App.2004). We review the evidence and all reasonable inferences in the light most favorable to the judgment, and we disregard all contrary evidence and inferences. Jackson v. Cannon, 147 S.W.3d 168, 169 (Mo.App.2004). The credibility of the witnesses and the weight to be given to their testimony is to be determined by the trial court, which is free to believe none, part or all of the testimony of any witness. Id. at 169-70. The following summary of the facts has been prepared in accordance with these principles.\\nMcCleney owned 170 acres of land located in Texas County, Missouri. He bought this property for the specific purpose of building a large lake on it. He built two interconnected lakes, approximately 15 acres in size, by placing two dams across three tributaries of the Big Piney River. One dam was 1,908 feet long, and the other was 1,560 feet long. McCleney believed that having the lakes on this property doubled its value. At some point prior to October 2003, McCleney applied for permits for the lakes from the Army Corps of Engineers (Corps) and the Missouri Department of Natural Resources (MDNR).\\nOn October 8, 2003, McCleney received a letter from the Corps concerning his after-the-fact application for a Department of the Army permit for the lakes. This letter stated that \\\"it does not appear that the need for your project justifies the impacts associated with the project.\\\" The letter also stated that, in order to obtain a permit, McCleney would have to either reconstruct the lakes in an upland area away from the stream channels or construct smaller lakes to minimize the impact to the three tributaries.\\nOn January 30, 2004, McCleney received a certified letter from the MDNR notifying him that his request for an after-the-fact permit from that agency had been denied. The letter explained that mitigation for the loss of aquatic stream resources was required and could well be increased over the normal, minimum requirements due to the after-the-fact nature of the work. The letter then stated: \\\"A complete mitigation plan is required before a certification can be made. Since you have not provided such a plan, your request for 401 certification must be denied.\\\" (Underlining in original.)\\nRies, who lived in Minnesota, was interested in purchasing real estate in Missouri. In May 2004, Realtor Pat Fletcher (Fletcher) was McCleney's real estate agent. Fletcher took Ries to see McCle-ney's property, which was listed at $335,000. Ries was interested in building a retirement home overlooking the lakes. He was shown the property by McCleney, who pointed out five or six sites where Ries could build a house directly overlooking the lakes. During that showing, Ries did not observe any problems with the lakes. Both appeared to be full. McCle-ney said nothing about any problems with the lakes. Ries knew that, in Minnesota, a certificate or permit was required for dams and lakes. He wanted to make sure that McCleney had permits for the lakes if they were required in Missouri. Ries had looked at other similar properties in the area without a lake, and they were priced at between $900 and $1,000 per acre. Although McCleney's property was priced at over $1,900 per acre, Ries decided that he wanted to buy the property because of the lakes it contained. He believed that the lakes added approximately $160,000 in value to that property.\\nPrior to signing the real estate conti-act, Ries learned that the dams \\\"leaked a little.\\\" McCleney told Ries that he had no reason to be concerned about the lakes. Ries agreed to fix these leaks himself if McCleney reduced the price by $10,000.\\nOn May 24, 2004, Ries and McCleney signed a real estate contract in which Ries agreed to buy McCleney's property for $325,000. The contract contained a provision entitling the prevailing party to reasonable attorney's fees, litigation costs and court costs in the event a lawsuit was filed. An addendum to the contract stated, in relevant part, that McCleney was \\\"to provide verification of permits for lake development and reveal any conditions, if existing.\\\" Ries wanted that provision included in the contract so that, \\\"if there was a permit required, that [McCleney would] take care of it.\\\" This language was drafted by Ries and Fletcher. At that point, Fletcher thought McCleney had the required permits. Both Ries and McCleney signed the addendum. If McCleney had not agreed to provide permits for the lakes, Ries would not have purchased McCleney's property. The same day the addendum was signed, Fletcher was told by McCleney that he intended to go to Kansas City on Wednesday, May 26th, and get the permit. Fletcher immediately sent a fax to Ries stating, in relevant part, that McCleney was \\\"[m]eeting w/ lake permit lady Wed.\\\"\\nOn Thursday, May 27th, Fletcher met McCleney on his property. He said the permit hearing went well, and the only thing he needed to do to complete the requirements was to build a fence. McCleney showed Fletcher where the fence needed to be built. Based upon this conversation with McCleney, Fletcher sent Ries another fax. In relevant part, this May 27, 2004 fax stated: \\\"[p]ermit hearing yesterday went well & a fence needs to be built by Mr. McCleney to complete requirements. He will do.\\\"\\nOn June 17, 2004, Ries met with Sid VanderVeen. He was a soils expert who advised Ries about how to repair the leaking dams. When Ries asked whether the lakes were required to have permits, Van-derVeen said that was not his area of expertise. Ries also called the Corps office in Kansas City, but he was not able to obtain any information about whether permits for the lakes were required.\\nThe closing occurred on June 18, 2004. Ries asked McCleney about the lake permits. McCleney said that he was working on it, and he would make sure he did everything that needed to be done. During the closing, McCleney also signed an affidavit stating, in relevant part, that he had \\\"received no notice from any public authority, requiring any improvement, alteration or change to be made in or about said property.\\\" Ries believed that McCle-ney would get the necessary permits. He was unaware that McCleney's requests for permits from the Corps and the MDNR had been denied, and McCleney did not disclose that fact.\\nOn July 18, 2004, Ries received an 18-page fax from the Corps office in Kansas City. The fax included copies of the October 2008 Corps letter and January 2004 letter from the MDNR. This was the first time Ries became aware that McCleney's applications for lake permits had been denied before Ries agreed to buy the property. Ries immediately faxed the documents to Fletcher, and she discussed the matter with McCleney. McCleney said he would go to Kansas City and get the permit.\\nOn September 23, 2004, Fletcher sent a fax to Ries. In relevant part, the fax stated: \\\"Took the 18 pages re permits up to Marge at Texas Co Title today. She said she talked to [McCleney] this week & he was willing to do whatever to get these permits done.\\\"\\nRies tried to get McCleney to obtain the permits for almost two years, but he made no effort to do so. The January 2004 MDNR letter caused Ries to believe that a heavy rain could cause the lower dam to fail and result in substantial damage downstream. A neighbor whose house and buildings were located within a few hundred feet of the lower dam also expressed concern about it. To avoid potential environmental damage and safety issues, Ries hired an excavator to breach the lower dam. This drained the water from both lakes. The excavator also moved part of the dam material away from an adjacent stream bed. This work cost Ries $63,000.\\nIn July 2006, Ries filed suit against McCleney. The amended petition con tained a breach of contract count and a fraudulent misrepresentation count. Ries sought actual damages, punitive damages, court costs, attorney's fees and such other relief as the court deemed proper.\\nAt trial, Ries testified that the loss of the lakes had reduced the value of his property by $160,000. He would not be able to get permits for the lakes without complying with a number of requirements. Ries' expert witness, David Cavender, was an environmental engineer. He had been asked to evaluate the lakes and determine what would be required to develop the necessary \\\"complete mitigation plan\\\" in order to receive permits. He testified about the following problems with the construction of the lakes. The dams were constructed without permits being issued. A small stream ran parallel to the foot of one dam. At flood stage, the stream could erode the base of that dam and create a safety hazard. Whole trees were left in place within the dam itself, which created the potential for leaks as the wood rotted. The face of one dam was too steep, which created erosion problems. The dams were constructed out of gravelly soil, which created leakage problems. The dams had a very large watershed, which created the potential that the dams would be eroded during flood events. Cavender also testified that Ries would not be able to obtain permits from the Corps and the MDNR unless a number of steps were taken to reconstruct the dams and mitigate their impact on the aquatic environment. Ca-vender opined that the necessary reconstruction and mitigation would cost Ries $741,401.\\nA bench trial was conducted in October 2009. In March 2010, the court entered an amended judgment in Ries' favor. The court made the following findings that are relevant to the issues presented in this appeal:\\n1. In the addendum to the sales contract, McCleney agreed to provide verification of permits for the existing lake system and to reveal any conditions, if existing.\\n2. Through correspondence and personal contact with representatives of the Corps and the MDNR, McCle-ney knew that there were problems with the lake system and that his requests for permits and certifications had been denied.\\n3. McCleney breached the sales contract by failing to provide verification of permits to Ries and by failing to reveal conditions of the lake that had been identified by the Corps and the MDNR.\\n4. At the time of closing, Ries was unaware of the aforementioned conditions of the lake system or that McCleney's application for permits and certifications had been denied. Ries reasonably relied on the provisions of the addendum and on McCleney's statements.\\n5. At the closing, McCleney made a material misrepresentation by signing an affidavit stating that he had received no notice from any public authority requiring any improvement, alteration or change to be made in his property. At the time McCleney signed the affidavit, he had received a letter from the MDNR notifying him that his certification and permit request had been denied and that an alteration in his property would be required.\\n6. Withholding the information contained in the MDNR letter from Ries was a material breach of the parties' agreement and was so willful and reckless as to be in utter disregard of Ries' rights.\\n7. The parties' contract provided that, in the event of litigation, the prevailing party was entitled to recover reasonable attorney's fees, litigation costs and court costs.\\n8. It would cost $741,401 to put Ries' property in the condition represented by McCleney.\\n9. The value of Ries' property was diminished by $160,000.\\n10. Ries was entitled to recover reasonable attorney's fees and litigation costs in the amount of $17,000.\\nThe court awarded Ries $160,000 in actual damages to compensate him for the diminished value of his property, $17,000 for reasonable attorney's fees and litigation costs, and $60,000 in punitive damages. This appeal followed.\\nPoint I\\nAppellant contends the trial court erred in finding that McCleney breached the contract by not providing verification of permits to Ries. Appellant argues that: (1) the contract addendum only obligated McCleney to provide the lake permits if they existed; and (2) because he never obtained any such permits, he could not have violated his contractual obligation. We disagree with McCleney's interpretation of the relevant contract addendum. It stated that McCleney was \\\"to provide verification of permits for lake development and reveal any conditions, if existing.\\\" The word \\\"verify\\\" means \\\"[t]o prove to be true; to confirm or establish the truth or truthfulness of.... \\\" Black's Law Dictionary 1594 (8th ed.2004). As the trial court decided, the addendum language created two distinct obligations. McCleney agreed to \\\"provide verification of permits\\\" for the lake system, and he also agreed to \\\"reveal any conditions, if existing.\\\" From the structure of the paragraph, we construe the \\\"if existing\\\" language to relate only to McCleney's duty to disclose lake conditions. Even if that language is ambiguous, however, our decision would not change. If a contract is ambiguous, the court can look to parol evidence to determine the parties' intent. See East Hills Condominiums Ltd. Partnership v. Tri-Lakes Escrow, Inc., 280 S.W.3d 728, 735 (Mo.App.2009). Ries and Fletcher were the persons who drafted the addendum. They both testified that the intent of the aforementioned language was to require McCle-ney to obtain any required permits and certificates for the lake system. There was ample evidence, via Fletcher's testimony and the faxes she sent to Ries, that McCleney understood the addendum language in the same way. Point I is denied.\\nPoint II\\nAppellant contends the trial court erred in finding that McCleney made material misrepresentations about the lake system. Appellant argues that Ries either knew, or could have discovered, everything material about the lakes prior to the closing. We disagree.\\nBefore the property was ever shown to Ries, McCleney knew that his applications for required lake certifications and permits from the Corps and the MDNR had been denied, and that substantial alterations to the property would be required to obtain such certifications and permits. McCleney did not disclose this information to Ries. Instead, McCleney told Ries that he had no reason to be concerned about the lakes. The contract addendum imposed an obligation upon McCleney to reveal any existing lake conditions. He failed to do so. Instead, he signed an affidavit falsely stating that he had \\\"received no notice from any public authority, requiring any improvement, alteration or change to be made in or about said property.\\\" Ries testified that: (1) the only lake condition of which he was aware prior to closing was that the dams leaked a little; (2) it was July 2004 before he became aware that McCleney's applications for lake certifications and permits had been denied; and (3) if he had known this information prior to closing, he would not have bought the property. The trial court believed Ries' testimony, and we defer to that credibility determination. See In re Marriage of Dolence, 231 S.W.3d 331, 333-34 (Mo.App.2007). \\\"The trial court is free to believe all, none, or part of the testimony of any witness.\\\" Youngberg v. Youngberg, 194 S.W.3d 886, 889 (Mo.App.2006). Point II is denied.\\nPoint III\\nAppellant contends the trial court erred by awarding any damages to Ries. Appellant argues that: (1) Ries failed to prove any diminution in the value of his property; (2) Ries failed to plead that he was entitled to attorney's fees; and (3) punitive damages are not recoverable in a contract action. We find no merit in any of these arguments.\\nFirst, there was ample evidence to support the court's actual damage award for diminution in value. McCleney bought the property for the specific purpose of building a lake on it. He believed that the addition of the lakes doubled the value of that real estate. Ries had looked at similar properties in the area that lacked a lake, and they were priced between $900 and $1,000 per acre. McCleney's property was priced at $1,900 per acre. Ries bought McCleney's property because of the lakes on it, and Ries believed that the lake system added $160,000 in value to that property. His testimony was competent evidence on the issue of value. See, e.g., Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179, 189 (Mo. banc 2009) (holding that the trial court could properly rely upon the owner's testimony concerning the before and after value of his property in assessing damages); Youngberg, 194 S.W.3d at 890 (an owner's testimony is competent evidence of value). That evidence was supported by McCleney's own testimony that the lake system doubled the value of the real estate.\\nSecond, Ries was entitled to recover attorney's fees. He requested attorney's fees in his petition, and he presented evidence on this issue at trial. If a contract authorizes the payment of attorney's fees, the court must award them to the prevailing party. See Turner v. Shalberg, 70 S.W.3d 653, 656 (Mo.App.2002). Ries was the prevailing party below. The trial court is considered an expert in assessing the necessity, reasonableness and value of legal services. In re Marriage of Cornella, 335 S.W.3d 545, 557 (Mo.App.2011); In re Fuldner, 41 S.W.3d 581, 596 (Mo.App.2001).\\nThird, Ries' petition included a breach of contract count and a fraudulent misrepresent on count. In the latter count, Ries alleged that McCleney's conduct \\\"was [willful], wanton, malicious and so reckless as to be in utter disregard of the consequences to [Ries].\\\" Appellant's argument implies that the trial court awarded punitive damages on the contract count. Based upon our review of the judgment, it is clear that the trial court awarded punitive damages on the fraudulent misrepresentation count. The recovery of punitive damages is authorized for this intentional tort. See, e.g., Haberstick v. Gordon A. Gundaker Real Estate Co., Inc., 921 S.W.2d 104, 109-10 (Mo.App.1996); Carpenter v. Chrysler Corp., 853 S.W.2d 346, 364-65 (Mo.App.1993); Marler v. House, 637 S.W.2d 365, 368 (Mo.App.1982). Point III is denied.\\nPoint TV\\nAppellant argues that the trial court's award of punitive damages is not supported by the evidence and is against the weight of the evidence. We will review each argument in turn.\\n\\\"Under Missouri law, a plaintiff is entitled to punitive damages if the plaintiff proves by clear and convincing evidence that the defendant's conduct was outrageous because of the defendant's evil motive or reckless indifference to the rights of others.\\\" Gilliland v. Missouri Athletic Club, 273 S.W.3d 516, 520 (Mo. banc 2009). The issue of whether there was sufficient evidence to support the trial court's award of punitive damages is a question of law that we review de novo. See id. In making that determination, \\\"we view the evidence and all reasonable inferences in the light most favorable to sub-missibility and we disregard all evidence and inferences which are adverse thereto.\\\" Alhalabi v. Missouri Dep't of Natural Res., 300 S.W.3d 518, 528-29 (Mo.App.2009).\\nViewed in the light most favorable to the judgment, there was sufficient evidence to support the punitive damage award against McCleney. As noted above, McCleney knew by January 2004 that his application for certifications and permits from the Corps and the MDNR had been denied, and that substantial alterations to the property would be required to obtain such certifications and permits. McCleney did not disclose that information to Ries. What McCleney did say to Ries was that he had no reason to be concerned about the lakes. McCleney was required by the contract addendum to reveal any existing lake conditions. He did not do so. At the closing, he signed an affidavit falsely stating that he had \\\"received no notice from any public authority, requiring any improvement, alteration or change to be made in or about said property.\\\" The trial court made a specific finding that McCle-ney's conduct was so willful and reckless as to be in utter disregard of Ries' rights. That finding is supported by the evidence and is sufficient to sustain the punitive damage award. See, e.g., Saddleridge Estates, Inc. v. Ruiz, 323 S.W.3d 427, 433-34 (Mo.App.2010) (upholding a punitive damage award for fraudulent misrepresentation involving the sale of real property).\\nAppellant also challenges the punitive damage award on the ground that it is against the weight of the evidence. This argument fails because it was not properly presented or adequately developed. Evidentiary \\\"weight\\\" refers to probative value, rather than the quantity or amount of evidence, and is determined by the ability to induce belief. Houston v. Crider, 317 S.W.3d 178, 186 (Mo.App.2010). An \\\"against the weight\\\" challenge presupposes the judgment's evidentiary support, but challenges that evidence's probative value to induce necessary belief, and involves four sequential steps. The appellant must:\\n(1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment;\\n(2) identify all of the favorable evidence in the record supporting the existence of that proposition;\\n(3) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court's credibility determinations, whether explicit or implicit; and\\n(4) demonstrate why the favorable evidence, along with the reasonable inferences drawn from that evidence, is so lacking in probative value, when considered in the context of the totality of the evidence, that it fails to induce belief in that proposition.\\nId. at 186-87. Here, Appellant relies upon evidence favorable to her position and ignores all of the evidence that supports the trial court's judgment. By doing so, Appellant has robbed her argument of any persuasive value. Id. at 188-89. This Court is prohibited from assuming the role of Appellant's advocate by formulating and articulating reasons why the omitted favorable evidence is not substantial and is so lacking in probative value, compared to the totality of the evidence, as to be against the weight of the evidence. Id. at 189. Point IV is denied.\\nThe judgment of the trial court is affirmed.\\nSCOTT, C.J., and FRANCIS, J., Concur.\\n. These steps recognize that, while we must consider contrary evidence in this type of review, we still defer to the trial court's credibility decisions and will find a judgment to be against the weight of the evidence only when we firmly believe the judgment is wrong. Houston, 317 S.W.3d at 186.\"}"
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+"{\"id\": \"7317844\", \"name\": \"In the Interest of: J.M.W.\", \"name_abbreviation\": \"In the Interest of J.M.W.\", \"decision_date\": \"2012-01-24\", \"docket_number\": \"No. ED 97077\", \"first_page\": \"887\", \"last_page\": \"894\", \"citations\": \"360 S.W.3d 887\", \"volume\": \"360\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:02:26.429985+00:00\", \"provenance\": \"CAP\", \"judges\": \"KATHIANNE KNAUP CRANE, P.J. and ROBERT M. CLAYTON III, concur.\", \"parties\": \"In the Interest of: J.M.W.\", \"head_matter\": \"In the Interest of: J.M.W.\\nNo. ED 97077.\\nMissouri Court of Appeals, Eastern District, Division Two.\\nJan. 24, 2012.\\nLinda Colburn, Clayton, MO, for Father.\\nCrista Lee Chenoweth-Beracha, St. Louis, MO, Juvenile Officer.\\nCeleste Leritz Endicott, Webster Groves, MO, GAL.\\nWilliam P. Grant, St. Louis, MO, for Mother.\\nChris Koster, Gary Lee Gardner, Jefferson City, MO, for Missouri Children\\u2019s Division.\", \"word_count\": \"3024\", \"char_count\": \"18547\", \"text\": \"KENNETH M. ROMINES, J.\\nIntroduction\\nJ.W. (\\\"Father\\\") appeals the judgment of the trial court terminating his parental rights to J.M.W. We find that the trial court did not err in its determination and affirm its judgment terminating Father's parental rights.\\nBackground\\nAppellant J.W. (\\\"Father\\\") is the natural father of minor child J.M.W. (\\\"J.M.W.\\\"), a daughter born on 3 September 2008. Following a hearing in June 2009, the trial court placed J.M.W. in protective custody because she was without proper care and custody from either parent. Father did not attend the hearing because he was incarcerated for a drug trafficking conviction. On 6 July 2009, the juvenile officer filed an amended petition alleging that J.M.W.'s mother could not keep the child because she was homeless. Father was ineligible because of his incarceration. The trial court determined that the allegations in the petition were true, issued a permanency plan for reunification, and placed J.M.W. in the legal custody of the Children's Division (\\\"Division\\\") for placement in foster care. Following a paternity test, Father was granted arranged, supervised visitation.\\nThe trial court held a hearing in October 2009 and issued a permanency plan for termination of parental rights and adoption or guardianship by a fit relative. Father was granted visitation rights as arranged by the Division. A similar hearing and determination was held by the trial court in January 2010.\\nOn 21 February 2010, Father signed a written services agreement with the Division. The agreement required that he call his social services worker collect once a month to obtain information about J.M.W.; write a letter to J.M.W. once a month and send a card on birthday and Easter; write his social worker monthly with information on the programs and treatment he was receiving in prison; inform his worker within five days if he is moved to another prison; cooperate with the recommendation of a psychologist for job training and counseling; sign a release form granting his worker access to information about programs in which he participated in prison.\\nOn 9 September 2010, the Division filed a petition to terminate Mother and Father's parental rights. On 4 November 2010, the trial court held a hearing and ordered Father to complete a substance abuse evaluation. On 8 March 2011, Father was released from prison into a halfway house. The trial court held a TPR hearing on 11 March 2011.\\nAt trial, the evidence showed that a social services worker first wrote Father that they had custody of J.M.W. in May or June of 2009. At this time, Father was incarcerated in the Bowling Green Correctional Facility. Father called the social services worker to inquire about the child. From June 2009 until May 2010, Father wrote letters to his child and social services worker but he wrote no more letters after May 2010. Father testified that he was aware that he was required to write J.M.W. once a month, and eventually testified that he \\\"probably could\\\" have afforded to buy one stamp a month.\\nEvidence also showed that Father did not inform his social worker when he was moved from the Tipton facility to the Al-goa Correctional Facility. In April 2010, the Division sent him a letter seeking doc umentation about programs in which he was participating in prison. Father did not respond. In May 2010, his worker called Algoa and learned that he had not participated in any program, and had not yet completed substance abuse treatment. Father's worker sent letters in January and February 2011 seeking information about any program he was participating in and still received no response. Father also did not sign a release as required by the services agreement. In short, due to Father's lack of communication, the Division received little to no information about Father's programs while he was in prison.\\nOn 3 May 2011, the trial court entered its judgment finding by clear, cogent, and convincing evidence that statutory grounds for termination existed under several subsections of Section 211.447.5. The trial court also found that termination was in the best interest of the child pursuant to Section 211.447.7. In connection with each of the statutory grounds for termination it found to exist, the lower court analyzed all statutorily-prescribed considerations, made findings with respect to each, and entered its termination judgment accordingly.\\nFather appeals, challenging the sufficiency of evidence presented below and the juvenile court's findings of fact and conclusions of law.\\nStandard of Review\\nWe will affirm the juvenile court's judgment terminating a parent's parental rights unless no substantial evidence supports it, it is contrary to the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will not set aside a termination decree as \\\"against the weight of the evidence\\\" unless our review on appeal leaves us with \\\"a firm belief that the decree or judgment is wrong.\\\" Id. And the reviewing court defers to the juvenile court's findings of fact and all reasonable inferences that can be drawn from those facts in the light most favorable to the juvenile court's judgment. In re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004). We will affirm the trial court's termination judgment if termination was supported by substantial evidence of any statutory ground that the court found to exist under Section 211.447.5. In re K.A.W., 133 S.W.3d 1, 16 (Mo. banc 2004).\\nDiscussion\\nIn Father's first four points on appeal, he claims the juvenile court erred in terminating his parental rights because there was insufficient evidence to support finding that any statutory grounds for termination existed.\\na. Findings Regarding Termination Pursuant to Section %11.\\u215b\\u215b7.5(3).\\nFather argues in his third point on appeal that there was insufficient clear, cogent and convincing evidence to support the juvenile court's findings pursuant to Section 211.447.5(3).\\nSection 211.447.5(3) (2006) provides that a juvenile court may consider terminating parental rights to any child:\\n[who] has been under the jurisdiction of the juvenile court for a period of one year, and the court finds that the conditions which led to the assumption of jurisdiction still persist, or conditions of a potentially harmful nature continue to exist, that there is little likelihood that those conditions will be remedied at an early date so that the child can be returned to the parent in the near future, or the continuation of the parent-child relationship greatly diminishes the child's prospects for early integration into a stable and permanent home.\\nTo permit termination, the statute requires the court to make findings on\\n(a) The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;\\n(b) The success of failure of the juvenile officer, the division, or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;\\n(c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care custody and control;\\n(d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control of the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control.\\n\\u00a7 211.447.5(3)(a)-(d); K.A.W.\\nFirst, the lower court found that J.M.W. had been under jurisdiction of the court more than one year. This is supported by the evidence given that the court granted protective custody in June 2009 and placed J.M.W. in the legal custody of the Division in July 2009. The court also found that that the conditions which led to the assumption of jurisdiction still persisted, or that conditions of a potentially harmful nature continued to exist and would not be soon remedied. The trial court analyzed the applicability of each consideration set out in the four statutory subsections and found that grounds for termination existed under subparagraphs (a), (b) and (d) above.\\nAs to subparagraph (a) of the statute, the trial court found that Father had failed to maintain monthly contact with J.M.W., failed to inform the Division when he moved to a different prison, did not provide proof of participation in programs during incarceration, and did not continually send monthly letters to his child even though by his own testimony he could put money aside for stamps. Father signed a written service agreement with the Division on 21 February 2010. The terms of the agreement required that he (i) call the Division once a month to talk with a worker about J.M.W.; (ii) write a letter to J.M.W. once a month; (iii) send a card to J.M.W. and her birthday and Easter; (iv) write the Division monthly with information on the programs and treatment he was receiving in prison; (v) if moved to another prison, inform the Division within five days of the move; cooperate with the recommendation of a psychologist for job training and counseling; (vi) sign a release form to granting the Division access the programs he received in prison. On appeal, we defer to the lower court's opportunity to judge witnesses' credibility and resolve fact issues. In re 906 S.W.2d 876, 878 (MoApp. S.D.1995). Based on the testimony presented at trial, Father failed to follow nearly every one of the service requirements even though both the terms and consequences of failing to adhere were explained to him. As such, we should defer to the trial court's finding here.\\nAs to subparagraph (b), the trial court found that \\\"Father has failed on a continuing basis since 6 July 2009 to adjust his circumstances or conduct to provide a proper home for the child despite reasonable, continuing, and diligent efforts by the [Division] to aid him in doing so.\\\" This is supported in the record. The Division repeatedly kept in contact with Father through numerous letters. On the one time the Division attempted to arrange visitation in prison, Father told them the wrong time. The Division wrote to Father 13 April 2010 to send verification of completion of services as required in the written services agreement, but Father did not comply. Though Father was informed of the importance of writing letters to his child, Father neglected to do so for ten months leading up to the TPR hearing.\\nClearly the Division maintained contact with Father and attempted to get him to adjust his behavior to the terms of the agreement. Had he complied, Father would have been in a much better position to provide a proper home for J.M.W.\\nAs to subparagraph (d), the trial found that \\\"Father suffers from chemical dependency that prevents him from consistently providing the necessary care, custody and control for the child.\\\" Though Father did successfully complete a drug treatment program while in prison, the overwhelming evidence of Father's extensive history of drug abuse and trafficking requires that we defer to the trial court findings.\\nFather testified that he trafficked in drugs all his life. The record also shows the he was a habitual user. He was convicted of possession of PCP on 1 March 1987. He was convicted of possession of PCP on 2 October 1987. He received a conviction for possession of heroin on 20 July 1990, and he received another conviction for possession of PCP on 3 October 2002. Though Father testified that he quit using drugs in 2003, yet he was convicted of trafficking in the second degree on 4 November 2008. It was this conviction for which he was incarcerated during the current proceedings. Based on this evidence, it was not error for the trial court to find that Father had a chemical dependency affecting his ability to care for J.M.W.\\nIn short, there is overwhelming evidence on the record both that the conditions which led to the assumption of J.M.W.'s care still exist, as do other potentially harmful conditions. Father did not follow the terms of the written service agreement which would have demonstrated commitment to J.M.W. This is particularly troubling since some of the terms he violated included merely writing to J.M.W. and calling the Division to get information on her. The Division clearly fulfilled its responsibilities by maintaining contact and trying to help him meet the requirements of the agreement, but Father still did not fully comply. Finally, Father's has a history of drug abuse and trafficking that spans decades. These conditions are not likely to be remedied soon, and to allow the parent-child relationship to continue would certainly diminish J.M.W.'s prospects for early integration into a stable home. As such, we should not say the trial court erred in finding these grounds sufficient to terminate Father's parental rights.\\nb. Findings Respecting Termination Pursuant to Section 21144-7.5(2), (l)(b), & (6).\\nIn Father's first, second, and fourth points on appeal, he contends that there was not sufficient evidence to support the juvenile court's finding grounds for termination under Sections 211.447.5(2), (l)(b), and (6). Since we find that there was substantial evidence here showing grounds for termination existed under Section 211.447.5(3) as discussed above, further review is unnecessary for us to uphold the juvenile court's judgment.\\nc. Findings Respecting Considerations Set Forth in Section 211447.7.\\nIn Father's final point on appeal, he argues that that trial court abused its discretion in finding that the termination of his parental rights was in the best interests of J.M.W. Once the juvenile court has identified applicable statutory factors as grounds for terminating a parent's parental rights, Section 211.477.7 requires the court, before entering its termination judgment, to also analyze the following factors, where applicable:\\n(1) The emotional ties to the birth parent;\\n(2) The extent to which the parent has maintained regular visitation or other contact with the child;\\n(3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so, including the time that the child is in the custody of the division or other child-placing agency;\\n(4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;\\n(5) The parent's disinterest in or lack of commitment to the child;\\n(6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;\\n(7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.\\nHere, the trial court's analysis of these factors supports its decision that termination was appropriate. The court found that: (i) no emotional ties existed between Father and J.M.W. due to lack of contact; (ii) Father was in jail for the majority of time J.M.W. was in care, but only sent one letter since 3 May 2010; (iii) Father has not paid even minimal support to J.M.W. since she has been in care; (iv) additional services are unlikely to enable placement within an ascertainable period of time because Father would have to complete drug screens and counseling, maintain stable housing and employment, make financial contributions to support, and begin regular visitation; (v) Father is interested in J.M.W. but lacks commitment as evidenced by failure to communicate with J.M.W., provide her support, and complete court-ordered services; (vi) Father has numerous felony convictions; and (vii) child would be at risk of physical and mental harm by Father if J.M.W. were returned to him based on his history with drug-related crimes and lack of housing or employment. Further review is therefore unnecessary for us to find that there was substantial evidence indicating termination was appropriate here.\\nd. \\\"Best Interests\\\" Analysis\\nAfter finding that statutory grounds for termination existed, the trial court was bound to further determine whether termination was in the child's best interest before entering judgment terminating Father's parental rights. When there is clear, cogent and convincing evidence that grounds exist for termination under Section 211.447.5, as in the present ease, the trial court may terminate upon finding that termination is in the child's best interest. KA.W., 133 S.W.3d at 20-21. This finding must be by a preponderance of the evidence. P.L.O., 131 S.W.3d at 789. Because the \\\"best interests\\\" determination is a subjective assessment of the totality of the evidence, it is not reweighed on appeal but reviewed for an abuse of discretion. In re B.L.H., 158 S.W.3d 269, 283 (Mo.App. E.D.2005). An abuse of discretion occurs when the trial court's decision was clearly against the logic of the circumstances and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration. In re S.R.J., Jr., 250 S.W.3d 402, 406 (Mo.App. E.D.2008).\\nHere, the lower court found that, based on all the competent evidence presented at trial, entering judgment terminating Father's parental rights was in J.M.W.'s best interest. Based upon the foregoing points, we find that the trial court's judgment did not abuse its discretion.\\nConclusion\\nBased upon the foregoing reasons, we affirm the judgment of the lower court terminating parental rights.\\nKATHIANNE KNAUP CRANE, P.J. and ROBERT M. CLAYTON III, concur.\\n. The parental rights of J.M.W.'s mother were also terminated; however, the mother does not appeal. We thus limit our discussion only to the facts and issues relating to Father.\\n. Any additional facts will be provided as needed in the discussion section.\"}"
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+"{\"id\": \"783144\", \"name\": \"THE STATE v. E. D. HENDERSON and W. M. YOUNGER, Appellants\", \"name_abbreviation\": \"State v. Henderson\", \"decision_date\": \"1908-05-19\", \"docket_number\": \"\", \"first_page\": \"208\", \"last_page\": \"215\", \"citations\": \"212 Mo. 208\", \"volume\": \"212\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T22:30:50.319696+00:00\", \"provenance\": \"CAP\", \"judges\": \"Fox, P. J., and Burgess, J., concur.\", \"parties\": \"THE STATE v. E. D. HENDERSON and W. M. YOUNGER, Appellants.\", \"head_matter\": \"THE STATE v. E. D. HENDERSON and W. M. YOUNGER, Appellants.\\nDivision Two,\\nMay 19, 1908.\\n1. WITNESS: Name Not O.ti Indictment. It is not error to permit the State to introduce a witness whose name is not indorsed on the indictment.\\n2. BURGLARY: Screen Door. The breaking of a screen door to a dwelling house kept closed by means of hinges and springs attached to the same in such manner that some force is necessary to open the door, is burglary within the meaning of the law.\\n3. -: Sufficiency of Evidence: Recent Possession of Goods. The presence of both defendants in the front yard of the house burglarized a short time before the burglary was committed; the fact that they were seen going together from the house in the direction of town five miles away soon after the commission of the crime, and were overtaken at the outskirts of the town, and were searched and numerous articles found on them which had been taken from the house, was sufficient recent possession of the stolen goods to justify the presumption that they committed the burglary, in the absence of any satisfactory explanation of the manner in which they came into the possession of said property, consistent with their innocence.\\nAppeal from Ralls Circuit Court. \\u2014 Now. D. H. Eby, Judge.\\nAffirmed.\\nHerbert 8. Haclley, Attorney-General, and N. T. Gentry, Assistant Attorney-General, for the State.\\n(1) The indictment is sufficient in form and substance. State v. James, 194 Mo. 269; State v. Watson, 141 Mo. 338; Kelley\\u2019s Crim. Law, sec. 609; R. S. 1899', sec. 1891. (2) In their motion for a new trial, the defendants do not assign as error the admission of improper evidence, nor the refusal to admit proper evidence. So the matter of the admission and exclusion of evidence is not before this court for review. State v. Yandell, 201 Mo. 646. But defendants do assign as error the action of the court in permitting a witness for the State, Mrs. Gones, to testify; her name not being indorsed on the indictment. This court has often held that such a ruling is not error. State v. Barrington, 198 Mo. 23; State v. Myers, 198 Mo. 225; State v. Hottman, 199 Mo. 110. (3) Defendants, in their motion for a new trial, do assign as error the giving of State\\u2019s instructions 3 and 4. Instruction 3 properly defined the crime of burglary and larceny; it told the jury that both of the defendants could be convicted of both burglary and larceny; both of them could be convicted of either burglary or larceny; and also told the jury that they could convict or acquit either defendant. Said instruction follows the language of the statute, and the forms prescribed thereby. R. S. 1899', sec. 1891. Instruction 4 properly explained to the jury the breaking necessary to constitute burglary. It has often been held that any breaking into a dwelling for the purpose of committing a felony is burglary. State v. Tutt, 63 Mo. 600; State v. Hecox, 83 Mo. 538; Dennis v. People, 151 Mich. 151; State v. Moon, 62 Kan. 803; Finch v. Com., 14 G-ratt. (Ya.) 646; State v. Reid, 20 Iowa 421; May v. State, 40 Fla. 426; State v. Conners, 95 Iowa 486. (4) The evidence of the guilt of both defendants was sufficient, especially in the absence of any explanation or contradiction on their part. The presence of both defendants, together, on the road near Mr. Herman\\u2019s dwelling, a very short while after the commission of the crime, the fact that two negroes were seen a few minutes before coming out of Mr. Herman\\u2019s front yard, when considered with the flight of both defendants and their possession of all of the stolen property an hour and half later, was conclusive proof of the guilt of both of them. The recent possession of stolen property which was taken at the time of the commission of a burglary, is sufficient to justify the jury in finding that the persons' in whose possession the same is found are guilty of the burglary, as well as the larceny. State v. Howard, 203 Mo. 604; State v. Toohey, 203 Mo. 678; State v. James, 194 Mo. 277; State v. Moore, 117 Mo. 404; State v. Owens, 79 Mo. 619; State v. Warford, 106 Mo. 62; 4 Elliott on Evidence, secs. 2725 and 2918; 1 Wigmore on Evidence, see. 153; 1 Greenl. on Evidence, sec. 34.\", \"word_count\": \"2274\", \"char_count\": \"12815\", \"text\": \"GANTT, J.\\n\\u2014 On October 30, 1907, the grand jury of Ralls county returned an indictment charging the two defendants with burglary and larceny. The offense was alleged to have been committed on the 20th of October, 1907, and the dwelling house of Utmer Herman burglarized, and certain personal property then and there in the said house stolen and carried away. The defendants were arrested, and at the said October term, 1907, were duly arraigned and entered their plea of not guilty. Afterwards in November, 1907, the defendants were jointly put upon their trial and convicted of both burglary and larceny and their punishment respectively assessed at three years in the., penitentiary for the burglary and two years each for' the larceny. After their motions for new trial and in arrest of judgment were filed and overruled, they were duly sentenced in accordance with the verdict of the jury. And from that sentence they have appealed to this court. The indictment is in the ordinary and often-approved form, and hence it is not necessary to reproduce it in this opinion.\\nThe evid\\u00e9nce tended to prove that the prosecuting witness Utmer Herman lived in Saverton township in Ralls county, Missouri, and was a farmer. His dwelling house was situated on the Saverton and Frankfort county road, which runs north and south by said farm into the town of Saverton. The house faced east and was about five miles from Saverton. On Sunday, October 20, 1907, Herman and his family, which consisted of himself, his niece, Mrs. G-ones, and three children, were at home until about 2:30' in the afternoon. At that time they left the house and went a quarter of a mile to a field to feed some calves. They were gono about two hours and a half, and when they returned discovered that the house had been burglarized during their absence. The outer door was a wire screen door and was closed by hinges and a spring, and the inner door was latched, and the entrance had been effected by pulling open the screens and getting into the house. As soon as Mr. H\\u00e9rman and his family returned to the house they discovered that various boxes and drawers had been opened and different articles of apparel were scattered around on the floor. An- examination disclosed that a gold watch and a white-handle razor belonging to Mr. Herman had been stolen from a dresser drawer. The watch was a gold-filled watch and had attached to it a fob, which made it easy to identify it. Another box had been opened and the razor taken out of it. The watch was shown to be worth' twenty-five dollars, and the razor and other articles stolen were worth from thirty-two to thirty-three dollars. The pocket book of Mrs. Gones containing $1.95 in money had also been stolen. ' Mr. Herman at once armed himself and started in pursuit of the thieves. He rode down the road towards Saverton and overtook the two defendants just as they were coming into town. Both of the defendants were negroes. He ordered the defendants to stop and compelled them to hold up their hands. He called upon Mr. Calvin to assist him and they searched the two defendants'in front of Mr. Fisher's house. While searching one of the defendants the other one took off his overcoat and made a motion towards the fence. Mrs. Gones's pocket book was found in the possession of one of the defendants at that time and contained $1.95. The two defendants were then taken on down to the depot in the town and another party was sent back to examine the ground where the defendants were first searched. There on the ground and near the fence in front of Fisher's place, this party found a gold watch and fob and the white-handle razor, which belonged to Herman. Various other articles were found on the person of the defendants, among others a revolver in the sleeve of one of the defendants. Mr. Glasscock was riding that Sunday afternoon by Herman's place and saw and recognized the two defendants walking along the side of the road about two hundred yards from Herman's house, about four o'clock in tbe afternoon. And a Mr. Keeeh testified to seeing two negro men coming out of the front yard.\\nThe defendants offered no evidence. The court instructed the jury on reasonable doubt, the presumption of innocence, and fully instructed them as to the elements of burglary and larceny and directed them that they might find the defendants both guilty or acquit both or find one guilty and the other not guilty accordingly as the evidence justified their verdict. And also instructed them as to the difference between grand larceny and petit larceny and what their verdict should be in case they found the stolen goods were of less value than thirty dollars as to the offence of larceny. The court then gave the following instruction: \\\"The court instructs the jury that if they find from the evidence that the screen door mentioned in the evidence was kept closed by means of hinges and springs attached to the same in such manner that some force was necessary to open said door and that the defendants opened said door by using such force, then the jury can find that there was a breaking of the dwelling house mentioned in the evidence.\\\" The defendants excepted to all the instructions given by the court.\\nI. The defendants are not represented in this court by counsel. As already said, the indictment is in the long-accepted and approved form and is sufficient. No error is assigned as to the admission or rejection of testimony. The defendants do complain of the action of the circuit court in permitting the State to introduce Mrs. Gones as a witness for the State, because her name was not indorsed on the indictment, but there was no error in this ruling of the court. [State v. Myers, 198 Mo. 225; State v. Hottman, 196 Mo. 110.]\\nII. The only assignment of error that calls for serious consideration is the'' propriety of the court's instruction in regard to what would constitute a breaking sufficient to constitute burglary. In State v. Tutt, 63 Mo. l. c. 600, it was ruled by this court that \\\"the mere lifting of a latch and1 so opening a door not otherwise fastened, or pushing upward \\u2022 or lowering a window sash which is held only by a wedge or pulley weight, or raising a trap door meant to be kept down merely by its own gravitation, or procuring by craft, or by threats and intimidation, a person within the house to open the door, is, in legal contemplation, a breaking. ' ' And in State v. Hecox, 87 Mo. l. c. 538, it was held that the opening of a door, which is closed and fastened with a chain hooked over a nail, is a sufficient breaking to constitute burglary, provided such breaking was done with intent to steal and carry away property. In Dennis v. People, 27 Mich. 151, the Supreme Court of Michigan decided that the raising of an unlocked transom, which was suspended by hinges at the top, and which was kept in its place by its own weight, was a sufficient breaking to constitute the crime of burglary. To the same effect, see Finch v. Com., 14 Gratt. l. c. 646; State v. Reid, 20 Iowa 421; May v. State, 40 Fla. 426. In State v. Moon, 62 Kan. l. c. 803, it was held that a defendant was guilty of burglary when he opened a wire screen door, the outer door of the room being open and the screen door being held in place by coil springs, when such breaking was done with the intent to commit a felony. And in State v. Conners, 95 Iowa l. c. 486, it was expressly decided that the opening of a screen door with intent to commit a felony in a house was breaking within the meaning of the law of burglary. [5 Am. and Eng. Ency. Law (2 Ed.), 45, and authorities there cited.] Accordingly, we think the circuit court correctly instructed the jury in said instruction.\\nIII. As to the contention that the evidence was not sufficient to sustain the verdict, we think this assignment is without substantial merit. The presence of both of the defendants in the front yard of Mr. Herman's house a short time before the burglary was discovered; the fact that they were seen going together from the house in the direction of Saverton soon after the commission of the crime and were overtaken by Mr. Herman, and the stolen goods found upon their persons showed such recent possession of the stolen property as to justify the presumption that they committed the burglary, in the absence of any satisfactory explanation of the manner in which they came into possession of the said property consistent with their innocence. [State v. Howard, 203 Mo. l. c. 603, 604; State v. James, 194 Mo. l. c. 277, and cases there cited.]\\nThe judgment must be and is affirmed.\\nFox, P. J., and Burgess, J., concur.\"}"
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+"{\"id\": \"799882\", \"name\": \"C. R. KING, Appellant, v. ESTATE OF MARY J. STOTTS\", \"name_abbreviation\": \"King v. Estate of Stotts\", \"decision_date\": \"1914-01-03\", \"docket_number\": \"\", \"first_page\": \"198\", \"last_page\": \"217\", \"citations\": \"254 Mo. 198\", \"volume\": \"254\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:07:48.070564+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"C. R. KING, Appellant, v. ESTATE OF MARY J. STOTTS.\", \"head_matter\": \"C. R. KING, Appellant, v. ESTATE OF MARY J. STOTTS.\\nDivision One,\\nJanuary 3, 1914.\\n1. APPELLATE JURISDICTION: Constitutional Question. Appellate jurisdiction, on the ground that a constitutional question is involved does not depend upon its being well taken, but upon whether it is properly and timely raised and has not prior to the appeal been exploded by decisions of the Supreme Court.\\n2. ADMINISTRATION: Allowance of Claim: Appeal to Circuit Court: Matters for Adjudication. Where the probate court allowed a claim against an estate and afterwards upon the motion of heirs set it aside and rendered judgment for a less amount and the claimant appealed to the circuit court, if his affidavit for the appeal shows that he was appealing from everything that was adjudged by the probate court, the circuit court is possessed of the whole controversy, even though it be granted that its jurisdiction is derivative only.\\n3. -: -:--: -: Trial in Two Sections: Estoppel. Appellant is estopped to urge as error a proceeding invited and occasioned by his own acts. Where claimant against an estate appealed to the circuit court from an order of the probate court vacating an allowance previously made and entered in his behalf and in rendering judgment for a less amount, he cannot on appeal complain that the circuit court tried his case in two sections, one on the merits and the other on the question of the power of the probate court to vacate the order of allowance, if his motions invited that course.\\n4. --: -: Vacating: Jurisdiction. The probate court has jurisdiction, under Sec. 220, R. S. 1909, upon the affidavit of an heir filed within four months and notice, to vacate an allowance of a claim -against- an estate made by default, the objecting heirs not being present, and, if the judgment of allowance is set aside, to grant a hearing or trial upon the merits of the demand; and the circuit court, on an appeal from an order setting aside the allowance, and rendering judgment for a less amount at a subsequent hearing, has a like jurisdiction to hear the motion to vacate.\\n5. -: -: -: Affidavit: Hearing. The affidavit required by the statute as preliminary to vacating an order allowing a demand against an estate is sufficient if it complies with the terms and requisites of the statute. Nor is it necessary to an order to vacate that the movent give such proof against the allowance as will defeat it at a hearing on the merits; but only that such a showing be made as will convince the court that the matter ought to be reheard in order to be more sure of a correct result.\\n6. -: -: -: After Four Months: Final Judgment: Constitutional. The statute authorizing the probate court to vacate a judgment of an allowance if within four months the heir, administrator or creditor file an affidavit that the claim has been improperly allowed, etc., violates no constitutional provision, nor denies to all the equal protection of the laws, even though the term at which the demand was allowed has expired before the affidavit is filed.\\n'7. -: -: -: Jury Hearing. The claimant against an estate is not entitled to a jury to try the motion of an heir to vacate an order allowing his claim. The application to vacate a judgment of allowance is one addressed to the discretion of the court.\\n8.--: -: \\u2014--: Declining Jury Trial: Judgment. And where the circuit court renders judgment approving and affirming the order of the probate court vacating a prior judgment of allowance in favor of a claimant, who has appealed to the circuit court from everything adjudicated in the probate court, and offered to claimant a trial by jury, which is declined, the court should not proceed to hear evidence on the claim, but should dismiss the cause.\\nAppeal from Lawrence Circuit Court. \\u2014 Hon. F. G. Johnston, Judge.\\nReverse\\u00bb and remanded (with directions).\\nOscar B. Elam for appellant.\\n(1) The allowance of the demand was rendition of a judgment against the estate. With the expiration of the term the judgment became final and conclusive. (2) It was no longer open to attack except in a court of equity under the ancient equity jurisdiction for fraud. Fitzpatrick v. Stevens, 114 Mo. App. 497. Or under conditions, and by parties, and in the time and manner prescribed by the statute and not prohibited by the Constitution, in the probate court. Fitzpatrick v. Stevens, 114 Mo. App. 497; Williams v. Gerber, 75 Mo. App. 30; Perry v. Alford. 5 Mo. 503; R. S. 1899, sec. 214; Powers v. Blakey Co., 16- Mo. 437. The probate court of its own motion could not vacate the judgment rendered by it at the November term, at the following February term. (3) The affidavit of Charles L. Henson performs no office except it be as a motion or as a petition or complaint against the judgment obtained by Dr. C. R. King at the preceding term of court, and it is without specifications of reasons to support it as required by Sec.- 640, R. S. 1899. Whether considered as a motion or petition, the affidavit is not evidence of the truth of the facts stated therein, and the affidavit tenders no issue triable in the court. (4) The affidavit contemplated by the statute was intended merely as an incident to a complaint to be filed against a judgment not four months old. Its office in the proceeding is' like unto the office of the affidavit required to the petition in a suit for divorce. (5) The filing of - the affidavit without filing an accompanying petition was like filing the affidavit in an attachment suit or a divorce suit, without filing any statement of a cause of action; or the filing in the probate court for allowance of a demand against an estate, without verification. It conferred no jurisdiction on the court to- act. Bank v. Ward, 45 Mo. 311; Dorn v. Parsons, 56 Mo. 602; Million v. Ohnorg, 10 Mo. App. 437. (6) The case tried by the court, so far as the pleadings show, was made upon the affidavit of Charles L. Henson, and the denial thereof filed by Dr. C. R. King. No evidence was offered to prove the allegations in the affidavit. (7) The case tried by the court on the evidence was the merits of the demand of Dr. C. R. King against the estate. There was no conflict in its material evidence and the evidence proved the demand to be just and due and owing. ,(8) The probate court is a court of special and limited jurisdiction. In ,re Elliott\\u2019s Estate, 27 Mo. App. 223; In re Elliott\\u2019s Estate, 98 Mo. 384; Cauley v..Truitt, 63 Mo. App. 356. (9) The jurisdiction of the probate court cannot be presumed or inferred; it must affirmatively appear from the record before the appellate court. (10) The circuit court on appeal acquired no jurisdiction if the probate court had none, and this court is likewise- without jurisdiction which is derivative and derived from the court first appealed from. In re Ford, 137 S. W. 32. (11) The case before the court was such a case as entitled Dr. King to a trial by jury.\\nCharles L. Henson for respondent.\\n(1) A constitutional question, to give the Supreme Court jurisdiction of an appeal on that ground: (a) Must be raised at the first possible moment orderly procedure will allow, otherwise it is waived. Hartzler v. Railroad, 218 Mo. 562; Lohmeyer v. Condage Co., 214 Mo. 685-; Asphalt Pav. Co. v. Ridge, 169 Mo. 377. (b) And should be put in the pleadings and kept alive throughout the proceedings, and not abandoned. Hanks v. Hanks, 218 Mo. 670; Kirkwood v. Highlands Co., 160> Mo. 111. (c) And where no such issue was raised in the prohate court in appellant\\u2019s motion, hut was thereafter injected into a like motion in the circuit court on appeal, the question is not sufficiently raised. In re Estate of Strom, 213. Mo. 1. (d) And there must be some rational connection between the facts in the case and the constitutional provision invoked. Eailroad v. Flanagan, 218. Mo. 566. And this court is therefore without jurisdiction of this appeal, and it should be transferred. (2) The probate court has jurisdiction over all matters pertaining to probate business, the allowance of demands and vacating allowances which were improperly allowed, that is, jurisdiction of the subject-matter of this proceeding, and the circuit court, on appeal, acquired the same jurisdiction, and the right to try the matter de novo. Sec. 34, art. 6, Constitution; B. S. 1909, secs. 220, 296, 4056. (3) If any heir o,r creditor shall, within four months after any demand shall have been allowed, file in the office of the probate court the affidavit of a credible person, stating that the affiant has good reason to believe and does believe that such demand has been improperly allowed, and shall furnish satisfactory evidence of that fact, and give notice to the adverse party, the court shall vacate the order of allowance and try the matter anew and allow or reject such demand as shall be right. Sec. 220, E. S. 1909 (tracing to Sec. 33, Chap. 123, Gr. S. 1865, p. 504); Keele v. ICeele, 118 Mo. App. 262.\", \"word_count\": \"6707\", \"char_count\": \"37867\", \"text\": \"GrEAYES, J.\\nThis action originated in the probate court of Lawrence county, December 3, 1906, by the filing of the following unitemized claim against the estate of Mary J. Stotts, deceased :\\u00ab\\nORIGINAL DEMAND.\\nThe estate of Mary J. Stotts, deceased, to C. R. King, debtor.\\nApril 28, 1907, to May 26, 1907, 9 visits from\\nCrane, Mo., from residence to Stotts City, Mo., 331-3-miles; detained in attendance 21 days visits and detaining........................................ 350.00\\nMarch 17, 1908, to June 9, visits 196........'............ 197.50\\nTotal amount .$547.50\\nThis demand was accompanied by the usual affidavit, and to it was also attached a waiver of service by the -administrator. On December 14, 1908, the probate court rendered a default judgment against the estate for the full amount of the demand. March 22,1909, the following petition was filed:\\nMOVENT'S PETITION.\\nState of Missouri, County of Lawrence, ss.\\nIn the Probate Court, February Term, 1909.\\nIn the Matter of the Estate of Mary J. Stotts, Deceased.\\nCharles L. Henson, being of lawful age and duly sworn, upon his oath says that he has good reason to believe and does believe that the demand of C. R. King, allowed by their court oh the 14th day of December, 1908, for $547.50 has been improperly allowed, and acting herein for Mary K. Pruitt and Fannie Davis, heirs at law of said Mary J. Stotts, desires to furnish satisfactory evidence of such fact of such improper allowance to this court, and after notice given to said King, the claimant, asks that such order so allowing such claim shall be vacated and the matter tried anew in this court, and for proper relief.\\nCharles L. Henson.\\nSubscribed and sworn to before me on this the 22nd day of March, 1909. C. W. Crooks,\\nJudge of the Probate Court.\\nNotice of this was duly served upon Dr. King March 29, 1909, and upon April 12th the claimant King, making a special appearance, moved to strike the motion signed by Henson, quoted above, from the docket for the following reasons:\\nFirst. The said action of Mary K. Pruitt and Fannie. Davis fails to state facts sufficient to constitute a defense against the said demand of the said C. R. King, or facts that the movents propose to prove to show that the demand was improperly allowed.\\nSecond. The court had no jurisdiction over the person of the said C. R. King.\\nThird. The court has no jurisdiction over the subject-matter of said motion of the said Mary K. Pruitt and Fannie Davis.\\nFourth. The notice served upon the said C. R. King by the said Mary K. Pruitt and Fannie Davis was not served in the time or in the manner prescribed by law and failed to advise said C. R. King of any facts that said Mary K. Pruitt and Fannie Davis would prove to the court to satisfy the court that the said demand' of C. R. King had been improperly allowed.\\nFifth. The affidavit and motion filed herein on part of said Mary K. Pruitt and Fannie Davis is insufficient to confer jurisdiction of the subject-matter upon the court and fails to state facts sufficient for a defense against the demand of the said C. R. King or facts sufficient to warrant the court in vacating the allowance of said demand.\\nThis motion of the claimant, King, was overruled, and the probate court, on said April 12th vacated and set aside its judgment of December 14, 1908, and ordered that such demand against the said estate be tried anew. On the same day the probate court entered a new judgment upon the merits allowing to Dr. King. $216' instead of $547.50'. This judgment on its face purports to have been rendered upon a hearing of testimony in the cause. The claimant, King, thereafter thus moved for an appeal:\\nComes now C. R. King and moves the court to grant him an appeal from all of the orders and decisions made and rendered by the court on Monday, April 12, 1909, in the said estate of Mary J. Stotts, deceased, in anywise seeking to affect the rights of said C. R. King as a creditor of the said estate, and particularly the orders, decisions and judgments of the court vacating or seeking to vacate the allowance of a demand against the said estate of Mary J. Stotts in favor of said C. R. King about December, A. D. 1908, and an order, decision or judgment allowing or attempting to allow a demand against the said estate and in favor of said C. R. King on said April 12th, A. D. 1909.\\nAppeal was granted and the cause in due time reached the circuit court. Upon the arrival of the cause in the circuit court, the claimant, King, on Sep tember 15th filed a motion to dismiss the complaint of Pruitt and Davis in the following language:\\nNow comes Dr. C. R. King and moves the court to dismiss the complaint of Mary K. Pruitt and Fannie Davis herein for the reasons following, to-wit:\\nFirst. The complaint fails to state facts sufficient to constitute a cause of action against Dr. C. R. King.\\nSecond. The complaint fails to state facts sufficient to confer upon the probate court jurisdiction to hear or determine the issues therein tendered.\\nThird. The complaint fails to state facts sufficient to confer upon the probate court jurisdiction to vacate the allowance made against the estate of said deceased, Mary J. Stotts, December 14, 1908, in favor of said Dr. C. R. King, even if every allegation therein were true and established to the satisfaction of the court.\\nFourth. No affidavit was ever filed in- the probate court or in this court, by or on behalf of said Mary K. Pruitt and Fannie Davis, as a basis of or as incident to this proceeding.\\nFifth. No statement of facts was ever filed by or on behalf of said Mary K. Pruitt and Fannie Davis as a basis of or incident of this proceeding.\\nSixth. The complaint does not state that the said allowance was in fact improperly allowed, nor does it state any facts from which it can be inferred that it was improperly allowed.\\nSeventh. Section 30 of article 2 of the Constitution of the State of Missouri, relating to due process of law, is violated by requiring Dr. King to answer to the complaint of the said Mary K. Pruitt and Fannie Davis, for same wholly fails to advise him of the nature of the complaint against him.\\nEighth. The said section 30 of article 2 of the Constitution of the State of Missouri, relating to due process of law, is violated in requiring said Dr. C. R. King to answer said complaint upon the notice given him in this proceeding, because said notice failed to advise him of the nature of the complaint he would be called upon to defend against and was not issued or served by lawful authority, or in proper time or manner.\\nNinth. The only notice ever given said Dr. C. R. King was given after said complaint was filed in the probate court.\\nTenth. The service and the notice were both insufficient to confer upon the probate court jurisdiction over the subject-matter of the motion or of the person of the defendant.\\nTbis motion of Dr. King's was overruled by tbe court, and tbe claimant King then demanded a jury to try tbe one question as to wbetber or not tbe pro bate court bad \\\"improperly allowed tbe demand of O. R. King against tbe estate of Mary J. Stotts, deceased.\\\" Tbis request for a jury upon that question tbe circuit court declined. Upon a bearing upon tbis question on September 16, 1909, tbe circuit court upheld tbe action of tbe probate court in setting aside its judgment of December 14, 1908. On tbe- same day, September 16th, tbe record shows tbe filing of an answer by tbe claimant couched in tbis language:\\nIn the Circuit Court of Lawrence County. To September Term, A. D. 1909.\\nIn the Matter of the Estate of Mary J. Stotts, Deceased.\\nComes now Dr. C. R. King and for answer to the complaint of Fannie Davis and Mary K. Pruitt, heirs at law of said Mary J. Stotts, deceased, 'denies each and every allegation therein and prays the court to render judgment in favor of said Dr. C. R. King for his costs in this behalf laid out and expended. Oscar B. Elam:,\\nAttorney of Dr. C. R. King.\\nAnd to tbis counsel for tbe estate replied by moving to strike out said \\\"pretended answer\\\" assigning tbe following as tbe basis of such motion:\\nFor the reason that the said C. R. King has filed his demand in the probate court and the entire record is in this court upon said King's appeal wherein, if he recovers, it will be necessary for said King to prove his said claim and a trial de novo will be necessary of all the matters and things embodied in said appeal.\\nWe find no disposition of tbis motion, in terms, in tbe record.\\nTbe trial below was- dual in form. First tbe trial court determined tbe question as to whether or not tbe probate court bad tbe right to vacate its judgment of December 14, 1908, and, secondly, the merits of tbe cause was disposed of by a judgment against tbe claimant. From tbe record it appears that claimant declined to participate- in the- bearing upon the merits. Tbis we glean from tbe following in a somewhat mixed record:\\nHere Dr. C. R. King rests his case.\\nMr. Henson: I move the court that he make an order finding this claim is improperly allowed and that we go ahead to try the matter now as to the amount of Dr. King's demand as provided by section 214.\\nMotion sustained by the court.\\nMr. Elam: Dr. C. R. King excepts.\\nMr. Henson: The estate of Mary X Stotts is here now and ready to take up and try anew the demand of C. R. King.\\nMr. Elam: Dr. King refuses to try the case upon the merits.\\nThe claimant then filed a motion for a new trial, accompanied by some remarks of counsel thus:\\nDr. C. R. King comes now and moves the court to set aside and rehear the judgment rendered herein this day vacating the allowance made by- probate court of Lawrence county, Missouri, against the estate of said deceased, Mary X Stotts, in favor of Dr. C. R. King, December 14, 1908, for the reason that the court over the objection and exceptions of said Dr. C. R. King and to his prejudice:\\nFirst. Erroneously overruled the plea of said King to the jurisdiction of the court.\\nSecond. Erroneously overruled the motion of said King to dismiss the complaint of Mary K. Pruitt and Fannie Davis.\\nThird. Rendered a judgment not within the issues tendered by the pleadings.\\nFourth. Admitted incompetent, irrelevant and immaterial evidence.\\nFifth. Excluded competent, relevant and material evidence tendered on behalf of said King.\\nSixth. Rendered a judgment not supported by any evidence.\\nSeventh. Rendered a judgment in conflict with the undisputed evidence.\\nEighth. Rendered judgment against the wrong party.\\nNinth. Denied the said King the right of trial by jury in violation of section 28 of article 2 of the Constitution of Missouri, and section 30 of article 2 of the Constitution of Missouri. C. R. King,\\nBy his attorney, Osear B. Elam.\\nFiled Sept. 16, 1909.\\nU. S. Kendall,\\nCircuit Clerk.\\nMr. Elam: The motion for a new trial is on the hearing in relation to vacating the original allowance and Dr. King does not appear to the cause on its merits.\\nThe motion was overruled and a motion in arrest of judgment met a like fate. This latter motion filed will not be set out because it raises no question material here. By a separate judgment the trial court rejected the claim of Dr. King and entered judgment against him for costs. The affidavit for appeal is not set out, but the record entry is as follows:\\nNow at this day comes C. R. King by Ms attorney and by leave of court files affidavit and application for an appeal herein, and deposits with the clerk of tMs court the ten dollars docket fee as required. by law. Whereupon the court having duly considered' said affidavit and application, awards the said C. R. King an appeal herein to the Supreme Court of the State of Missouri.\\nThe short form transcript filed in this court contains both judgments entered by the eircuit court) i. e., the separate judgment wherein the circuit court upon a hearing found that the probate court was. right in setting aside the judgment of December 14, 1908;, as well as the separate judgment wherein the circuit court found against the claimant as to his claim. The foregoing fully states the case here for all purposes urged in the briefs.\\nI. It is suggested that this court has no jurisdiction of this appeal. The amount would give jurisdiction elsewhere, but we are inclined to the view that the record from the probate court and in ^le circuit court bear evidence of timely constitutional questions, which give this . . \\u00b0 court jurisdiction. It is not a matter of whether the constitutional questions are well taken, but whether they are properly and timely raised, and have not heretofore been exploded by decisions of this tribunal prior to the appeal in the instant case. Granting the constitutional questions lodged in the record by this rule, the jurisdiction of the appeal is here.\\nDerivative Jurisdiction. II. The record is not the clearest one we have read, but we are impressed with the view that the affidavit for appeal filed in the probate court brought the whole' controversy to the circuit court. That affidavit set out in our statement of facts shows that Dr. King was appealing from everything that was adjudged by the probate court. So that grant it, without deciding, that the jurisdiction of the court is derivative only, and that it can on appeal only go into the matter brought by appeal from the probate court, yet in this case, under the affidavit filed, the whole case, including both orders and judgment of the probate court, were brought by appeal to the circuit court. That court was therefore possessed of the whole controversy, and if its action is consonant with legal rules, the judgment entered by it should be affirmed.\\nIII. Brushing aside the driftwood in the record for another step forward, we must rule that Dr. King cannot complain of the dual trial given be-l\\u00b0w- By this we mean he is not in position to question the matter of the trial conrt having proceeded to try his cause in two sections. In so trying the cause the court was but following the lead of Dr. King and his counsel. Dr. King demanded a jury to try the one question of whether or not the probate court had \\\"improperly allowed the demand of C. R. King against the estate of Mary J. Stotts, deceased. ' ' In the trial in the circuit court, after Dr. King's motion to dismiss the complaint of Mary K. Pruitt and Fannie Davis had been overruled, we find this interesting matter in the record:\\n\\\"Mr. Elam: Dr. King moves the conrt for a trial by jury on the question of whether the probate court improperly allowed the demand.\\n' ' The CourtOverruled.\\n\\\"Mr. Elam: Plaintiff excepts to the action of the court in refusing a jury for trial on the question of whether the probate court improperly allowed the demand of C. R. King against the estate of Mary J. .Stoots, deceased.\\n\\\"The Court: The court declines to have a jury, basing its ruling on section 214, Revised Statutes 1899, to try the question of improper allowance.\\n\\\"Mr. Elam: Dr. King excepts.\\\"\\nThe court thereupon proceeded to hear testimony upon the circumstances of the allowance originally made by the probate court to Dr. King, and in connection therewith testimony upon the value of his services to the deceased. Throughout all this Dr. King .and his counsel appeared and cross-examined witnesses. Not only so, but Dr. King put on witnesses in his own behalf, and testified himself in his own behalf. This testimony tended to both the service rendered to deceased by Dr. King and the value thereof. But throughout this whole proceeding it is clear that counsel upon both sides were aiming to> try the one issue, as to whether or not the probate court was in error in vacating its original judgment, and as evidence of that situation, and at the end of it all, is Dr. King's motion for new trial .which expressly assails but the one judgment, and that one the judgment adjudging- that the probate court was right in setting aside the original allowance. But for fear the court might misunderstand the motion counsel for Dr. King undertook to make it plain thus:\\n\\\"Mr. Elam: The motion for \\u00e1 new trial is on the hearing in relation to vacating the original allowance and Dr. King does not appear to the cause on Its merits.\\\"\\nThis is the only motion for new trial found in the whole record, and it goes solely to the first judgment described in our statement. Prom it all it is clear that the plaintiff, King, was in a larg'e measure responsible for the dual trial which was had,, and if there was error in that method of proceeding, he would be estopped from urging an error thus invited and occasioned by his own acts.\\nIY. There is at least here for our review the question raised as to the judgment setting aside the original allowance to Dr. King1 in the probate court. There is a motion for new trial directed at this part of the trial court's action, and as we have held both judgments have been appealed from, the question raised as to the preliminary order or judgment are here for review.\\nIf we gather the force of counsel's contentions they are (1) that the court was without jurisdiction to enter such a judgment, and (2) that the court nisi denied to Dr. King a trial by a jury upon the issue as to whether or not the original allowance to Dr. King should he set aside. Of course there are othei matters in the motion for new trial, hut they all cluster around these two questions. Of these two questions in order. Was the circuit court without jurisdiction? We think not. First by the appeal of Dr. King from the probate court the whole case was brought in regular order to the circuit court, and if the probate court had a right to entertain a motion to vacate the original allowance, then the circuit court\\\" on appeal acquired jurisdiction to determine the same question. The statute under which the heirs of the deceased proceeded, is Eevised Statutes 1909, section 220, and .reads:\\n\\\"If an executor, administrator, heir or creditor of an estate shall, within four months after any demand shall have been allowed, file in the office of the probate court the affidavit of himself or some credible person, stating that the affiant has good reason to he lieve, and does believe, that suck demand has been improperly allowed, and shall furnish satisfactory evidence of that fact to the court, and further, that notice has been given the opposite party or parties in interest, the court shall vacate such order of allowance and try the matter anew, and allow or reject such demand, as shall be right; and if, upon such new hearing, such demand shall be allowed, it shall be classed and paid as if such new hearing had been granted.\\\"\\nThe affidavit we have set out in full in our statement of the case. This affidavit complies with the statute, supra. This statute, which is an amendment of an older statute, is- highly remedial, and intended to facilitate the work of the probate courts, in getting at righteous results in allowances. Smith, P. J., in Martin v. Estate of Nichols, 63 Mo. App. l. c. 349, thus speaks of the present statute:\\n' ' The section is remedial in its character and must receive a liberal construction. [Weil v. Simmons, 66 Mo. 617.] The plain and obvious object the lawmaker had in view in so amending the statute was to afford the administrator, executor, heir, or creditor of an estate, having reason to believe that an improper allowance had been made against the estate, an opportunity to> have the same, within four months' thereafter, set aside and the matter tried anew, and this, too, whether notice of the presentation is given to the representative or his agent. And this statutory enlargement of the jurisdiction of the probate courts does not, in any way, alter or affect the jurisdiction of the circuit courts exercising equitable jurisdiction. The jurisdiction of these courts, in cases of fraud, is not ousted because a remedy exists at law. [Dingle v. Pollick, 49 Mo. App. 479.] \\\"\\nUnder such a statute, if the affidavit complies with the terms and requisites of the statute, it is sufficient. This affidavit follows the language of the statute and should be held. sufficient. Again the statute provides a concurrent and not an exclusive remedy against such, allowances. [Fitzpatrick v. Stevens, 114 Mo. App. l. c. 503.] It still leaves the remedy in equity, if there are facts for equity. [Fitzpatrick v. Stevens, supra, and cases cited therein.] Going a step further, the statute itself seems to contemplate two hearings, i. e. (1) on the question as to whether the judgment of allowance shall be set aside, and (2) a hearing (if the judgment of allowance is set aside) as to whether the claim should be allowed at all. The courts seem to so treat the statute. Thus in Keele v. Keele, 118 Mo. App. l. c. 278, Goode, J., says:\\n\\\"But it is said'that section 214 requires the party moving to vacate a demand, to furnish satisfactory evidence to the court that the demand was improperly allowed. We do not understand the statute to mean that the mover must give such proof against the allowance as would be required to defeat it at a hearing on the merits; but only that such a probable showing must be made against its propriety as will convince the court that the matter ought to be reheard in order to be more sure of a correct result. The findings of fact contained in the judgment vacating the present allowance show the court was satisfied to that extent. There was no abuse of judicial discretion in the ruling to justify us in reversing it. ' '\\nIt is also held that one contesting an allowance in the first instance cannot move to vacate the allowance under this statute. In the Keele case, supra, at page 272 et seq., it is said:\\n\\\"The scope of that section has not been fully defined by adjudications; but in our judgment it was not intended to allow a party interested in an estate who appears and contests the allowance of a demand, to move afterwards to vacate the allowance on the same grounds on which he contested it. To take this view of the statute would annul, as far as the allowance of demands against the estate of deceased persons is con cerned, the general doctrines governing the effect of former adjudications. An executor, administrator, heir, devisee, legatee, creditor, or other person having an interest in an estate may appeal from a judgment allowing against the estate a demand exceeding ten dollars. [R. S. 1899, sec. 278.] If the demand is made after an actual contest by any party in interest, we think section 214 of the statute does, not contemplate that such party can have the matter reopened for another contest on the identical ground previously adjudicated.\\\"\\nIn the case at bar, however, we meet with no such difficulty. The original allowance in the probate court was one by default, and- the movents here were not present and took no part therein. To conclude this point it is clear that the probate court was possessed by this statute of jurisdiction to hear this motion to vacate, and it being so: possessed of jurisdiction the circuit court upon appeal had a like jurisdiction. The statute violates no constitutional provisions, because, forsooth, the term might expire before the end of the four months, and before the filing of the application to vacate. We have a statute allowing a motion to vacate a circuit court judgment, under given circumstances, if such motion be filed within three years. It has never been thought that such a motion violated constitutional provisions, or refused to all the equal protection of the laws. Dr. King was duly notified of the filing of the application to vacate' in the probate court. In response he entered only a special appearance, when he could have done differently. But be that as it may, the filing of the motion and the service of notice thereof upon him conferred jurisdiction upon the probate court and through it jurisdiction upon appeal upon the circuit court.\\nNow to the second question. Was Dr. King entitled to a jury? We think not. This application to vacate a judgment of allowance is one addressed to the discretion of the court. As stated above the statute contemplates (1) a hearing as to whether the allowance shall be vacated, and (2) if it is vacated then a new hearing upon the merits of the ease. As said by Goode, J., in the Keele case, supra, the statute does not \\\"mean that the mover must give such proof against the allowance as would be required to defeat it at a hearing on the merits, but only that such a probable showing must be made against its propriety as will convince the court that the matter ought to be reheard in order to be more sure of a correct result. 'f There is no place for a jury in the hearing of an application thus addressed to the discretion of the court. One might as well demand a jury upon the hearing of a motion for new trial. As the statute contemplates a dual hearing, there was no wrong done in refusing a jury upon the question as to whether or not the original allowance should be vacated. Upon the case upon the merits the court offered D'r. King a jury, but he and his counsel declined to try the case upon its merits, and after such declination the court, without a jury, heard evidence and disallowed the claim. We say heard evidence, because the judgment so says, but as Dr. King and his counsel were not there to preserve the same in a bill of exceptions, we are left in the dark as to its character.\\nV. We have seen from what precedes that there is no error in this record, unless there be error in the judgment upon the merit's. To this judgment we drift next. The record being a peculiar 0Iie we Prefer to set out this judgment, so that it may speak for itself. Such judgment follows the judgment affirming the action of the probate court in vacating the original allowance, and reads:\\nC. R. King, Plaintiff, v. Estate of Mary J. Stotts, Deceased.\\nJudgment against C. R. King on his demand.\\nAfter the vacation, as improperly allowed, of the order of the prohate court of Lawrence county, Missouri, made December 14, 1908, in favor of C. R. King and against the estate of Mary J. Stotts, deceased, by this court, and the affirmance by this court of the order of the probate court made April 12, 1909, vacating, as improperly allowed, said allowance of December 14, 1908, from which last named order, as well as other orders made herein on April 12, 1909, by said probate \\\"court, said King appealed to this court, the above entitled cause and matter of the demand of C. R. King against said estate comes on now to be heard and tried anew and be allowed or rejected as shall be right.\\nAnd it appears that the administrator of the estate of Mary J. Stotts, deceased, having waived the service of the notice of the presentation of said demand in the probate court aforesaid, and James D. Whaley, administrator of said estate of Mary K. Pruitt and Fannie G. Davis, heirs at law of said Mary J. Stotts, deceased, and of her estate, by Charles L. Henson, their attorney, appear and ask and demand of said C. R. King and this court that said matter of the demand of said C. R. King against said estate be now tried anew and announce ready for trial; and said C. R. King although requested to do so, doth refuse to appear to this proceeding or to show any cause for continuance thereof, whereupon the court, a jury being waived, doth proceed to hear the evidence adduced on said demand of said C. R. King, and after hearing all the evidence adduced doth find the issues against said C. R. King, and that he is not entitled to recover herein, and his demand against said estate is therefore rejected. Wherefore, it is considered, odered and adjudged that said administrator go hence without day and that he recover of and from said C. R. King his costs herein laid out and expended, for all which execution may issue.\\nThe things which, happened at this trial are not preserved by bill of exceptions. They announced that they would not appear and try the merits. The judgment recites that Dr. King .refused-to appear. The question then is, what should have been, done by the trial court1? As a fact the trial court proceeded to try King's case after he had abandoned it. His claim was in the nature of a suit against the estate. When he declined to make proof of the claim, the court should have dismissed his case, and should not have proceeded to try it and render judgment against him as was done. The court could have adjudged the costs against him upon a dismissal of his claim, hut should not have gone further. It follows that the judgment entered on the merits should he reversed. Upon the whole the judgment vacating the original allowance of the prohate court is affirmed, and the judgment on the merits reversed and cause remanded with directions to the trial court on that branch of the case to enter up a judgment dismissing the claim fo,r failure to prosecute the same, which judgment should carry with it a judgment for costs. It is so ordered.\\nAll concur.\"}"
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+"{\"id\": \"8168381\", \"name\": \"STATE of Missouri, Respondent, v. Joseph BAKER, Appellant\", \"name_abbreviation\": \"State v. Baker\", \"decision_date\": \"2008-08-19\", \"docket_number\": \"No. ED 90298\", \"first_page\": \"435\", \"last_page\": \"435\", \"citations\": \"260 S.W.3d 435\", \"volume\": \"260\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T01:21:30.993501+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROBERT G. DOWD, JR., P.J. and CLIFFORD H. AHRENS and SHERRI B. SULLIVAN, JJ.\", \"parties\": \"STATE of Missouri, Respondent, v. Joseph BAKER, Appellant.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Joseph BAKER, Appellant.\\nNo. ED 90298.\\nMissouri Court of Appeals, Eastern District, Division Three.\\nAug. 19, 2008.\\nDaniel J. Briegel, Union, MO, for appellant.\\nJeremiah W. (Jay) Nixon, Attorney General, Jamie P. Rasmussen, Asst. Attorney General, Jefferson City, MO, for respondent.\\nBefore ROBERT G. DOWD, JR., P.J. and CLIFFORD H. AHRENS and SHERRI B. SULLIVAN, JJ.\", \"word_count\": \"185\", \"char_count\": \"1180\", \"text\": \"ORDER\\nPER CURIAM.\\nJoseph Baker (\\\"Defendant\\\") appeals from the judgment upon his conviction of one count of producing a controlled substance, Section 195.211, RSMo 2000, and one count of resisting arrest, Section 575.150. Defendant argues the trial court erred in overruling his motion to suppress evidence.\\nWe have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 80.25(b).\\n. All further references are to RSMo 2000 unless otherwise indicated.\"}"
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+"{\"id\": \"8306054\", \"name\": \"Kerry BROOKS, Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"Brooks v. State\", \"decision_date\": \"2008-01-15\", \"docket_number\": \"No. SC 88353\", \"first_page\": \"705\", \"last_page\": \"709\", \"citations\": \"242 S.W.3d 705\", \"volume\": \"242\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T01:20:01.817113+00:00\", \"provenance\": \"CAP\", \"judges\": \"LAURA DENVIR STITH, C.J., PRICE, TEITELMAN, LIMBAUGH and WOLFF, JJ., and SULLIVAN, Sp. J., concur.\", \"parties\": \"Kerry BROOKS, Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"Kerry BROOKS, Appellant, v. STATE of Missouri, Respondent.\\nNo. SC 88353.\\nSupreme Court of Missouri, En Banc.\\nJan. 15, 2008.\\nRosalynn Koch, Office of Public Defender, Columbia, MO, for Appellant.\\nJeremiah W. (Jay) Nixon, Atty. Gen., Robert J. Bartholomew, Asst. Atty. Gen., Jefferson City, MO, for Respondent.\", \"word_count\": \"1533\", \"char_count\": \"9182\", \"text\": \"PER CURIAM.\\nKerry Brooks entered an Alford plea to assault of a law enforcement officer in the first degree. He subsequently filed this action under Rule 24.035, alleging, among other issues, that the plea agreement had been breached, that no factual basis for the plea existed, and that the charge in the information constituted a class B felony of assault rather than the class A felony for which he was sentenced. The motion court agreed that the plea agreement had been breached and ordered relief, but otherwise overruled the motion. The motion court's judgment is affirmed.\\nFacts concerning the crime\\nA police officer tried to stop Brooks' car for a traffic violation. The car eluded the officer until it struck another car. As Brooks tried to escape, the officer attempted to restrain Brooks, who had a gun in his right hand. The gun was in the ready-to-fire position. The officer grabbed Brooks' wrist to prevent the gun from being pointed at her. As the struggle continued, Brooks threw the officer to the ground and fell on top of her. The officer drew her duty weapon and pointed it at Brooks. He then threw his gun down and, again, unsuccessfully attempted to escape.\\nFacts concerning the plea\\nThe state charged Brooks with assault and armed criminal action. The incident also was the subject of federal charges. The state offered to dismiss the armed criminal action charge in exchange for the plea to the assault charge. The terms of the plea agreement also provided that the sentence imposed by the trial court was not to exceed the sentence Brooks received on a pending federal charge, it was to run concurrent with the federal sentence, and Brooks was to serve his sentence on the state charge in federal custody under his federal sentence.\\nThe trial court sentenced Brooks in accordance with the plea agreement, stating that it \\\"will furlough [Brooks] to the Federal system for [Brooks] to do [his] time in the Federal sentence.\\\" After the plea, Brooks was not transferred to federal custody.\\nFacts concerning the motion and filing the appeal\\nBecause he was not transferred to federal custody, Brooks filed a Rule 24.035 motion. All parties agreed that the failure to transfer Brooks to federal custody was error. Accordingly, the motion court vacated Brooks' previously entered sentence and ordered that Brooks be resentenced in accordance with the terms of the original plea agreement. The court denied all other relief. Before resentencing occurred, Brooks filed his notice of appeal.\\nStandard of review\\nAppellate review of the motion court's action on a Rule 24.035 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24-035(k). The motion court's findings and conclusions are clearly erroneous only if, after the review of the record, the appellate court is left with the definite and firm impression that a mistake has been made. Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004).\\nThe motion court's decision was final without resentencing\\nA motion under Rule 24.035 is governed by the rules of civil procedure insofar as applicable. Rule 24.03(a). The motion court is to file findings of fact and conclusions of law on all issues presented. Rule 24,.035(j).\\nA prerequisite to appellate review is that there be a final judgment. Boley v. Knowles, 905 S.W.2d 86, 88 (Mo. banc 1995). A final judgment disposes of all issues as to all parties, leaving nothing for future determination. Magee v. Blue Ridge Professional Bldg. Co., Inc., 821 S.W.2d 839, 842 (Mo. banc 1991). Rule 24.035(j) requires the motion court to issue findings of fact and conclusions of law on all issues presented. If the motion court complies with Rule 24.035(j), an order sustaining or overruling a Rule 24.035 motion is a final judgment for purposes of appeal by the movant or the state. Rule 24.035(k). In this case, the motion court complied with Rule 24.035, and its judgment is final and appealable.\\n\\\"Where the motion court determines that the movant is to be resentenced, as in this case, that issue is decided, and the fact that resentencing has not occurred prior to the appeal being filed does not cause the motion court's judgment to be interlocutory. See Tisius v. State, 183 S.W.3d 207, 211 (Mo. banc 2006); State v. Shafer, 969 S.W.2d 719, 723 (Mo. banc 1998). To the extent Barringer v. State, 12 S.W.3d 765 (Mo.App.2000), and Williams v. State, 954 S.W.2d 710 (Mo.App.1997), are to the contrary, they are overruled.\\nThere was a factual basis for the plea\\nBrooks contends that there was no factual basis for his plea to the assault charge. The information the prosecutor filed charged Brooks with violating section 565.081.1, constituting the class A felony of assault of a law enforcement officer in the first degree.\\nBrooks does not contest that the crime involved a law enforcement officer. He contends the evidence simply shows he was armed and struggled with the officer. The prosecutor's recitation of facts shows more. The prosecutor was prepared to show that Brooks' gun was in the ready-to-fire position, that Brooks began to swing his right hand toward the front of his body, which would have placed the gun between Brooks and the officer, that the officer grabbed Brooks' wrist to prevent the gun from being pointed at her, that Brooks threw the officer to the ground and fell on top of her, and that Brooks ended the assault and threw his gun away only after the officer drew her weapon and pointed it at him. All of this followed a chase by the officer that ended after an accident with another vehicle and Brooks' attempt to escape his disabled car.\\nBrooks made an Alford plea. The plea court explained to Brooks that in such a plea, Brooks did not have to agree with the facts but could conclude that in the end he would be found guilty. After the prosecutor set out the facts the state would present, Brooks agreed that there was a great likelihood that he would be convicted if the case went to trial and pleaded guilty.\\nThe motion court concluded that there was a factual basis for the plea and that the plea was knowing and voluntary; its conclusions are not clearly erroneous.\\nThe alleged defect in the information does not require granting relief\\nAs his final point, Brooks contends that the information charging him with assault contained language stating that his possession of a gun was a substantial step toward the commission of the assault. From this language Brooks asserts he was only charged with class B attempted assault rather than class A assault.\\nThe information charged that Brooks, \\\"in violation of section 565.081.1, RSMo, committed the class A felony of assault of a law enforcement officer in the first degree.\\\" The information also charged that Brooks was a persistent offender under section 558.016.\\nWhen a defendant challenges the sufficiency of an indictment or information for the first time following a guilty plea, the indictment or information will be held to be sufficient unless (1) it does not by any reasonable construction charge the offense to which the defendant pleaded guilty and (2) the defendant demonstrates actual prejudice as a result of the insufficiency. State v. Sparks, 916 S.W.2d 234, 237 (Mo.App.1995).\\nThe movant does not demonstrate actual prejudice. The information advised Brooks of the statutes under which he was charged and would be sentenced as well as the facts that would support conviction for the offense. The motion court found that Brooks understood the charge to which he was pleading, the potential punishment range, and noted that Brooks was charged as a persistent offender, which made him subject to any sentence authorized for a class A felony. Section 558.016.7. The findings and conclusions of the motion court finding no prejudice are not clearly erroneous.\\nConclusion\\nThe judgment is affirmed.\\nLAURA DENVIR STITH, C.J., PRICE, TEITELMAN, LIMBAUGH and WOLFF, JJ., and SULLIVAN, Sp. J., concur.\\nRUSSELL and BRECKENRIDGE, JJ., not participating.\\n. This Court transferred this case after an opinion by the Court of Appeals, Southern District, authored by the Honorable Gary Lynch. Portions of that opinion are used without further attribution. This Court has jurisdiction. Mo. Const. article V, section 10.\\n. An Alford plea allows a defendant to plead guilty to a charged offense and accept criminal penalty even if he or she is unwilling or unable to admit to committing the acts constituting the offense. North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).\\n.Section 565.081, RSMo 2000. All other statutory references are to RSMo 2000.\\n. Section 565.080.1 provides: \\\"A person commits the crime of assault of a law enforcement officer in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer.\\\"\"}"
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+"{\"id\": \"8319716\", \"name\": \"Pamla G. LAWS, Appellant, v. ST. LUKE'S HOSPITAL, et al.; Defendant. Thomas Helling and Mid-america Surgical Specialists, P.C.; Respondents Melissa Vu, Defendant\", \"name_abbreviation\": \"Laws v. St. Luke's Hospital\", \"decision_date\": \"2007-01-09\", \"docket_number\": \"No. WD 66564\", \"first_page\": \"461\", \"last_page\": \"471\", \"citations\": \"218 S.W.3d 461\", \"volume\": \"218\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T02:14:09.693865+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before THOMAS H. NEWTON, P.J., PATRICIA A. BRECKENRIDGE, and JOSEPH M. ELLIS, JJ.\", \"parties\": \"Pamla G. LAWS, Appellant, v. ST. LUKE\\u2019S HOSPITAL, et al.; Defendant. Thomas Helling and Mid-america Surgical Specialists, P.C.; Respondents Melissa Vu, Defendant.\", \"head_matter\": \"Pamla G. LAWS, Appellant, v. ST. LUKE\\u2019S HOSPITAL, et al.; Defendant. Thomas Helling and Mid-america Surgical Specialists, P.C.; Respondents Melissa Vu, Defendant.\\nNo. WD 66564.\\nMissouri Court of Appeals, Western District.\\nJan. 9, 2007.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied Feb. 27, 2007.\\nApplication for Transfer Denied May 1, 2007.\\nLaura L. Del Percio, Douglas R. Horn, Independence, for appellant.\\nTimothy M. Aylward, Bradley M. Dowd, Kansas City, for respondents.\\nRichard D. Simpson, Ashley T. Dean, Kansas City, for defendant, Melissa VU.\\nSt. Luke\\u2019s Hospital of Kansas City, defendant.\\nBefore THOMAS H. NEWTON, P.J., PATRICIA A. BRECKENRIDGE, and JOSEPH M. ELLIS, JJ.\", \"word_count\": \"3775\", \"char_count\": \"23275\", \"text\": \"THOMAS H. NEWTON, Presiding Judge.\\nFactual and Procedural Background\\nBecause Ms. Pamla G. Laws was obese and had suffered from severe sleep apnea, she had gastric bypass surgery (\\\"bariatric surgery\\\") to help her lose weight. Dr. Thomas Helling performed the surgery, and afterwards Ms. Laws was taken to a post-anesthesia recovery room. An order on Ms. Laws's chart stated, \\\"Elect not to exh\\u00edbate at surgeon's request.\\\" In a preoperative consultation with Dr. Helling, Ms. Laws testified that since she had a history of sleep apnea, obesity, and the use of drugs after surgery, Dr. Helling assured her that a breathing tube would be left in her overnight, because with those conditions, she was considered high risk to develop breathing problems. In the recovery room Dr. Melissa Vu, a resident anesthesiologist, extubated Ms. Laws. Dr. Vu discussed this procedure with Dr. Nancy Bruda, the attending anesthesiologist, who gave her permission to exh\\u00edbate Ms. Laws. Approximately four hours later, Ms. Laws went into respiratory arrest, and her breathing was inadequate to remove the carbon dioxide in her system. While Dr. Bruda attempted to clear an airway, a resident surgeon, Dr. Gibson, performed emergency surgery and created a tra-cheostomy in Ms. Laws's throat. Since the emergency tracheostomy, Ms. Laws has undergone several surgeries to remove the tracheotomy, but these surgeries have been unsuccessful.\\nMs. Laws sued Drs. Helling and Vu and St. Luke's Hospital of Kansas City for medical negligence. Ms. Laws presented two expert witnesses, Dr. Jonathan Benu-mof, an anesthesiologist, and Dr. Robert Zarranz, a laryngologist. Dr. Benumof testified about the standard of care and causation as it related to the extubation of Ms. Laws. Dr. Zarranz testified about the standard of care for communication between a surgeon and the other doctors treating patients. Additionally, portions of a letter from Dr. Bruda, writing in response to the emergency operation, were read to the jury. In the letter Dr. Bruda requested clarification on a number of issues including: the extubation policies the surgery department wants implemented, and who is responsible for performing the extubation of patients when it is not done in the emergency room.\\nThe case was submitted to a jury on the theory that Dr. Helling was negligent by failing to properly communicate to the persons providing Ms. Laws post-operative care regarding extubation. The jury returned a verdict for Ms. Laws against Dr. Helling and Dr. Vu for $1,026,000, assigning 51% of the fault to Dr. Helling and 49% of the fault to Dr. Vu, who later settled. Thereafter, the trial court granted Dr. Helling's motion for judgment notwithstanding the verdict (JNOV). In the order granting the JNOV, the trial court stated that \\\"based upon the weight of the evidence and arguments of Counsel, if it had not granted [the JNOV motion] it would have ordered a new trial.\\\"\\nMs. Laws appeals the grant of JNOV to Dr. Helling, claiming that she made a sub-missible case of medical malpractice. She also appeals the grant in the alternative of a new trial, asserting that the trial court failed to give specific reasons for ordering a new trial because the verdict was against the weight of the evidence. Dr. Helling raises several other issues in his response: that Dr. Zarranz's professional qualifica tions did not qualify him to testify as an expert; that the standard of care given by Dr. Zarranz was incorrect; that evidence of a prior death was improperly allowed, and that one of the jury instructions was improperly submitted to the jury. We will discuss the issues related to JNOV and whether the grant of a new trial in the alternative was proper. We also address Dr. Helling's additional issues because they will likely arise in the new trial. We reverse the grant of JNOV and affirm the grant of a new trial.\\nJNOV was Improperly Granted\\nIn her first point, Ms. Laws argues that JNOV was granted improperly because she made a submissible case of medical negligence. JNOV is approved only if the plaintiff failed to make a sub-missible case. \\\"To make a submissible case of negligent medical treatment, plaintiff must establish that (1) an act or omission of defendant failed to meet the requisite medical standard of care, (2) the act or omission was performed negligently, and (3) there was a causal connection between the act or omission and plaintiffs injury.\\\" Sheffler v. Arana, 950 S.W.2d 259, 267 (Mo.App. W.D.1997). \\\"In determining whether plaintiff made a submissible case against defendant, the reviewing court views the evidence in the light most favorable to plaintiff, giving plaintiff the benefit of all favorable evidence and reasonable inferences drawn therefrom, and disregards all contrary evidence.\\\" Id. There is a presumption favoring the reversal of a judgment notwithstanding the verdict. Collins v. Hertenstein, 90 S.W.3d 87, 94 (Mo.App. W.D.2002). The presumption is overcome where \\\" 'the evidence and inferences favorable to the plaintiff leave no room for reasonable minds to differ as to the outcome.' \\\" Id. (citation omitted).\\nStandard of Care and Negligence\\nMs. Laws made a submissible case on the issue of standard of care. Generally, expert testimony is required to establish the standard of care. Sheffler, 950 S.W.2d at 267.\\nNegligence is the failure to use that degree of skill and learning ordinarily used by members of one's profession under the same or similar circumstances. In articulating the appropriate legal standard of care, it is insufficient for an expert merely to use the terms \\\"accepted medical standards\\\" or \\\"standards of care.\\\" Instead, an expert should be properly oriented with the meaning of negligence in a health care provider context and, in fact, employ the legal standards in offering his opinion. Additionally, the jury must be informed that the expert has utilized the appropriate legal standards. The purpose of these requirements is to prevent experts from relying upon their own views of acceptable practice rather than applying the objective legal standards.\\nId. (citations omitted).\\nIn this case Dr. Zarranz testified that, based upon his training and education, Dr. Helling had not acted as a reasonable doctor under the same or similar circumstances, in that he'did not, among other things, communicate the high risk of Ms. Laws's recovery and the need to keep her intubated overnight. Thus, Dr. Zarranz's testimony shows that Dr. Helling's inadequate communication about Ms. Laws's medical conditions as a high-risk patient proves Dr. Helling's failure to ensure proper maintenance of her airway by leaving her intubated until the next morning when more staff was available for monitoring the patient. Additionally, the letter from Dr. Bruda admitted expressed her concerns about the communication for gastric bypass patients and intubation, medi cation, and poor communication regarding the care of these patients. This testimony taken in the light most favorable to Ms. Laws does establish that Dr. Helling's actions fell below the standard of care.\\nCausation (Proximate and Action)\\nMs. Laws also presented sufficient evidence to prove causation. Causation does not need to be proved with direct evidence but can be proved circumstantially. Jines v. Young, 732 S.W.2d 938, 945 (Mo.App. S.D.1987). A submissible case for causation is made if substantial evidence is presented that the injury is a \\\"natural and probable consequence of the defendant's act or omission.\\\" Id. The evidence is sufficient \\\"[i]f the logical conclusion from the evidence is that if certain things had been properly done certain results would not have occurred, and such results did occur.\\\" Id. Thus, neither expert had to directly state that lack of communication caused the injury. Viewing the evidence and inferences in the light most favorable to Ms. Laws, a submissible case of causation was made.\\nThe evidence most favorable to Ms. Laws established that the logical consequence of Dr. Helling's failure to communicate effectively was that Ms. Laws would be extubated during the evening after her surgery. Without the extubation, the tracheotomy would not have been necessary.\\nTaking the evidence in the light most favorable to Ms. Laws and disregarding any evidence to the contrary, a chain of causation was established linking Dr. Hell-ing's failure to communicate to the extubation and the tracheostomy, which is the underlying injury of this action. Dr. Ben-umof s testimony establishes that the extu-bation caused the tracheotomy, which has been difficult to repair and has not been rectified to date. Dr. Benumof also testified that, within a reasonable degree of medical certainty, the tracheostomy was a result of Dr. Vu's deviation from the standard of care, which he established as her failure to ensure that Ms. Laws could breathe on her own. Dr. Zarranz's testimony that Dr. Helling breached his standard of care by failing to communicate properly with the anesthesiologists, taken with Dr. Benumof s testimony, circumstantially establishes that the failure to communicate caused the extubation, based on the reasonable inference that Dr. Vu would not have extubated Ms. Laws if the high risk of doing so had been properly communicated. Thus, the JNOV was improperly granted.\\nThe New Trial was Proper\\nWe now turn to Ms. Laws' fourth point in which she argues that granting a new trial was presumptively erroneous because the Order failed to give specific reasons for ordering the new trial. \\\"Trial courts have broad discretion to grant a new trial because the verdict was against the weight of the evidence.\\\" Dick v. Children's Mercy Hosp., 140 S.W.3d 131, 137 (Mo.App. W.D.2004). The trial court in its Order granting JNOV, indicated that if JNOV had not been granted that a new trial would have been granted based upon the weight of the evidence. Thus, the judgment for new trial is not presumptively erroneous. See id. at 136.\\nThe Missouri Rules of Civil Procedure allows one new trial to be granted if the verdict is against the weight of the evidence. Rule 78.02. \\\"The grant of a new trial based on Rule 78.02, that the verdict was against the weight of the evidence, will be reversed only if there has been a manifest abuse of discretion, since the trial court is in a better position to weigh evidence than the appellate courts.\\\" Dick, 140 S.W.3d at 136. It is more likely that the grant will be upheld than denied. Id. We will view all inferences and evi dence in the light most favorable to the trial court's decision. Id. \\\"Discretion is not abused where there was substantial evidence to support a verdict for the party awarded the new trial.\\\" Resco Constr. Co. v. Dawson Cabinet Co., 656 S.W.2d 324, 826 (Mo.App. S.D.1983). Furthermore, the granting of a new trial for specific reasons acts as a rejection of all other reasons for new trial. Dick, 140 S.W.3d at 136.\\nHowever, when the new trial is granted to a defendant, the standard of review is different. Reyes v. St. Luke's Hosp., 716 S.W.2d 294, 295 (Mo.App. W.D.1986). Because a defendant can succeed in a trial without presenting any evidence, we are not required to determine if substantial evidence was presented to support a verdict for defendant. Id. Unfortunately the standard for abuse of discretion in these cases is ill defined. In cases where the defense did not present evidence, the new trial is affirmed if some of the plaintiffs evidence is oral testimony on which a credibility judgment is required and that credibility judgment affects the outcome for or against the plaintiff. See e.g., id.; O'Neal v. Agee, 8 S.W.3d 238, 241 (Mo.App. E.D.1999); Torre Specialties, Inc. v. Coates, 832 S.W.2d 914, 918-19 (Mo.App. W.D.1992). In a case where the defendant presented evidence, that evidence was sufficient to justify a jury verdict for the defendant, and this court affirmed the new trial. McGraw v. Andes, 978 S.W.2d 794, 804-05 (Mo.App. W.D.1998) (\\\"There was evidence, however, to the contrary and that evidence would have upheld a jury verdict in favor of McGraw.\\\"). An abuse of discretion is found where no verdict for the [party granted the new trial] could ever be permitted to stand. See id. at 801, 804^805.\\nThe question is: would Dr. Helling's evidence uphold a jury verdict in his favor? Id. at 804-05. We answer this without reference to any other evidence to avoid weighing the evidence. In this case, the new trial was granted for being against the weight of the evidence, and the underlying facts that serve as a basis for this were those presented in oral testimony by the experts and witnesses at the trial. Because this is an issue of credibility for which we defer to the judgment of the trial court, we will affirm the new trial if the evidence presented by Dr. Helling would have allowed a jury verdict in the defendant's favor to stand.\\nDr. Helling presented evidence for which a jury verdict in his favor would have been allowed to stand. Evidence was presented that he met the standard of care for communication to other health care professionals by discussing extubation with the anesthesiologists and placing an order in the chart not to extubate. Furthermore, evidence adduced at trial indicated that doctors do not dictate orders to other doctors but consult with each other, with the final decision made by the doctor responsible for that particular as-peqt of the patient's care. Additionally, evidence was presented that anesthesiologists, not surgeons, are responsible for determining when a patient is extubated, because they have expertise -in anesthesia and airway control. The evidence also showed that the collapse of the airway likely would have happened regardless of when Ms. Laws was extubated. Thus, the anesthesiologist was responsible for making the decision. Additionally, evidence was presented that the tracheotomy .was unnecessary, and, therefore, the lack of communication did not cause the tracheotomy; rather, the cause of the tracheotomy was a surgical resident who performed the procedure unnecessarily.\\nThe basis for accepting this evidence is a credibility determination by the jury. The trial court was acting within its discretion to weigh the evidence based on the credibility of the defendant and the State's witnesses. Therefore, looking at all the evidence in the light most favorable to the trial court's decision to grant a new trial, Dr. Helling presented substantial evidence to establish a verdict in his favor. Thus, the trial court's judgment to grant a new trial is affirmed.\\nOther Issues\\nSince the following points may be presented at the new trial, we will briefly discuss them for assistance to the parties and the trial court.\\nFoundation for Dr. Zarranz as an Expert Witness\\nAlthough the trial court in its approval of the motion for JNOV noted some misgivings about allowing Dr. Zarranz to present standard of care opinions, this was not the basis for the new trial. Specifically, the trial court cited the following reasons in granting the JNOV: the expert was unqualified because he had not had hospital privileges in nine years; he had been suspended involuntarily by a hospital; and he had not been in private practice for four years.\\nAn expert can be qualified to give an opinion by \\\"knowledge, skill experience, training, or education.\\\" RSMo \\u00a7 490.065.1 (2000). The admission of expert testimony is reviewed for abuse of discretion. Bella v. Turner, 30 S.W.3d 892, 899 (Mo.App. S.D.2000). A physician expert may opine regarding the standard of care and whether a physician met that standard, even if the expert practices in a different field of specialization than the defendant. Id. This fact only affects the weight the opinion should be given. Id. In this case, Dr. Zarranz's specialty provided him with knowledge of both airway management, concerning intubation and extu-bation, as well as exposure to morbidly obese patients with sleep apnea. The trial court did not abuse its discretion by allowing the opinions of Dr. Zarranz.\\nThe \\\"Attending Surgeon\\\" Theory of Recovery\\nDr. Zarranz's testimony seems to be presenting a \\\"captain of the ship\\\" argument, which has neither been adopted nor rejected as proper in Missouri. We do not determine whether in general this theory is proper or not, but we do find that the theory as presented was proper. Dr. Zar-ranz's opinion listed several duties of the attending surgeon, including communicating information about high-risk patients and coordinating post-operative care. The theory presented to the jury was that Dr. Helling was negligent for failing to adequately communicate.\\nDr. Zarranz discussed the standard of care for communication about high-risk patients and directing post-operative care. Only the testimony about directing postoperative care implicates a \\\"captain of the ship\\\" theory, and this was not furthered in the trial nor was it submitted to the jury in the jury instructions. Therefore, we find no error in allowing this testimony.\\nPrior Death Evidence\\nDr. Helling also contends that JNOV was proper because Dr. Zarranz's entire opinion was based on the prior death of a patient treated by Dr. Helling. In his deposition Dr. Zarranz was asked what Dr. Helling would have needed to do differently had the prior death not occurred, and he answered \\\"nothing.\\\" He also stated that the prior death formed the basis of his opinion. The trial court excluded any mention of the prior death at trial by granting defendants' motion in limine, but allowed Dr. Zarranz to give his opinion, which was, at least in part, based on that death. Dr. Helling insists this was improper because Dr. Zarranz did not have enough information to form an opinion about the cause of the prior death. Dr. Helling argues that this means that Dr. Zarranz should not have been allowed to testify. We disagree.\\nDr. Zarranz's opinion is not based on the cause of the previous death. Instead it is based on the fact that the prior death, which involved the same surgery and occurred after extubation, should have put the doctors on heightened notice of the problems associated with high-risk baria-tric patients and, in particular, that care should be taken when extubating a patient.\\nDr. Helling further argues that Dr. Zar-ranz's opinion about the \\\"failure to adequately communicate\\\" was vague and devoid of any detail regarding how he should have communicated. Implicit in Dr. Zar-ranz's opinion is that Dr. Helling should have told the other doctors about the high-risk posed to Ms. Laws and that her extu-bation should have been delayed. Dr. Helling's testimony that he would have preferred the extubation in the morning when there were more people to monitor patients indicates that he believed she should have been left intubated for a longer period of time. Hence, the trial court did not abuse its discretion by allowing Dr. Zarranz to testify.\\nSubmission of Instruction No 9 was Appropriate\\nIn her third point, Ms. Laws argues that jury instruction number nine was properly submitted and not a proper basis for granting a JNOY. A properly submitted jury instruction is \\\"supported by sufficient evidence, and every element of a verdict director must be supported by substantial evidence.\\\" Williams v. Daus, 114 S.W.3d 351, 363 (Mo.App. S.D.2003) (citation and internal quotation marks omitted). We examine the sufficiency of the evidence in the light most favorable to the submission of the instruction. Id. at 364. If the instruction is supportable under any theory, then it was properly submitted. Id. In the discussion supra regarding the grant of JNOV, we examined the evidence for causation and standard of care and determined that it was sufficient to make a submissible case. Therefore, this evidence is insufficient to declare that submission of the instruction was improper.\\nAlternatively, Dr. Helling contends that the jury instruction created a \\\"roving commission\\\" and was thereby improper. Jury instructions must contain the ultimate facts. A roving commission is a jury instruction that assumes a disputed fact or submits abstract legal questions that allow the jury to roam freely through the evidence and choose any facts, which suited its fancy or its perception of logic, to impose liability. Brooks v. SSM Health Care, 73 S.W.3d 686, 696 (Mo.App. S.D.2002).\\nThe phrase \\\"failure to adequately communicate,\\\" referring to nonspecific medical information, did not create a roving commission. This phrase could be considered \\\"confusing and misleading,\\\" such that it failed to provide the jury with guidance. St. Joseph's Hosp. of Kirkwood v. Schierman, 829 S.W.2d 4, 6 (Mo.App. E.D.1991). However, such a jury instruction is allowed if. the misleading phrase was given flesh and meaning by evidence presented during the trial. Williams v. Daus, 114 S.W.3d 351, 371 (Mo.App. S.D.2003). Where the word or phrase is not a scientific word, which requires a definition from an expert to aid the jury, a roving commission is not created. See Kampe v. Colom, 906 S.W.2d 796, 805 (Mo.App. W.D.1995).\\nDr. Zarranz gave flesh and meaning to the term \\\"adequately communicated\\\" when he opined- that Dr. Helling should have communicated that Ms. Laws be left intu- bated overnight. Furthermore, \\\"communicated\\\" is a non-scientific/non-medical term, for which the jury does not need an expert definition. The jury instruction, with the flesh and meaning provided by Dr. Zarranz's testimony, is sufficient to guide the jury; the jury was not given free reign by the instruction to roam through the evidence to choose any facts it likes to reach a verdict. When viewed in the light most favorable to submission of the jury instruction, the term \\\"failure to adequately communicate\\\" did not create a roving commission.\\nIf the jury instruction had been a roving commission, the correct remedy would have been a new trial not a JNOV.\\nConclusion\\nBecause JNOV was improperly granted, but the granting of a new trial was proper, we remand this case for a new trial.\\nPATRICIA A. BRECKENRIDGE, and JOSEPH M. ELLIS, JJ. concur.\\n. Intubate and extubate are medical terms for inserting and removing an endotracheal tube. The purpose of an endotracheal tube is to establish and maintain an airway to assist a patient's breathing.\\n. At the time of the surgery Dr. Vu's surname was Mena. She is referred to throughout the record as either Dr. Mena or Dr. Vu. For clarity we will address her only as Dr. Vu.\\n. A tracheostomy is a hole formed in someone's throat as a result of an emergency surgery to clear an airway.\\n. More commonly known as an ear, nose, and throat doctor.\"}"
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+"{\"id\": \"8327179\", \"name\": \"Prentice HYDE, Jr., Appellant, v. HARRIS BEST CARE, INC., and Division of Employment Security, Respondents\", \"name_abbreviation\": \"Hyde v. Harris Best Care, Inc.\", \"decision_date\": \"2007-03-20\", \"docket_number\": \"No. ED 89300\", \"first_page\": \"356\", \"last_page\": \"357\", \"citations\": \"217 S.W.3d 356\", \"volume\": \"217\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:12:42.606624+00:00\", \"provenance\": \"CAP\", \"judges\": \"GLENN A. NORTON and PATRICIA L. COHEN, JJ., Concur.\", \"parties\": \"Prentice HYDE, Jr., Appellant, v. HARRIS BEST CARE, INC., and Division of Employment Security, Respondents.\", \"head_matter\": \"Prentice HYDE, Jr., Appellant, v. HARRIS BEST CARE, INC., and Division of Employment Security, Respondents.\\nNo. ED 89300.\\nMissouri Court of Appeals, Eastern District, Division Five.\\nMarch 20, 2007.\\nPrentice Hyde, Jr., St. Louis, MO, appellant Acting Pro Se.\\nCynthia Ann Quetsch, Jefferson City, MO, for respondent.\\nHarris Best Care, Inc., St. Louis, MO, respondent Acting Pro Se.\", \"word_count\": \"437\", \"char_count\": \"2838\", \"text\": \"BOOKER T. SHAW, Chief Judge.\\nPrentice Hyde, Jr. (Claimant) appeals from the decision of the Labor and Industrial Relations Commission (Commission) dismissing his application for review regarding his unemployment benefits. Claimant's appeal is dismissed.\\nA deputy of the Division of Employment Security (Division) determined that Claimant was disqualified from receiving unem ployment benefits. Claimant appealed to the Appeals Tribunal of the Division. The Appeals Tribunal dismissed his appeal and Claimant filed an application for review with the Commission, which dismissed the application as untimely. Claimant has now appealed to this Court.\\nThe Division has filed a motion to dismiss Claimant's appeal, contending Claimant's application for review with the Commission was untimely and therefore the Commission and this Court lack jurisdiction to review his case. Claimant has not filed a response to the Division's motion.\\nThe unemployment statutes provide that an aggrieved party make seek review of an Appeals Tribunal decision by filing an application for review with the Commission within thirty days from the mailing of the Appeals Tribunal decision. Section 288.200.1, RSMo 2000. The statute sets forth no exception to the thirty-day requirement. As a result, any failure to file a timely application for review divests the Commission of jurisdiction and it can only dismiss the application for review. Butler v. M.W.S. Enterprises, Inc., 199 S.W.3d 912, 913 (Mo.App. E.D.2006).\\nHere, the Appeals Tribunal mailed its decision to Claimant on November 2, 2006. Under section 288.200.1, Claimant's application for review was due on Monday, December 4, 2006. Section 288.240 RSMo 2000 (if the last day for filing is a Saturday, Sunday or legal holiday, the filing is due on the next business day). Claimant filed his application for review with the Commission by facsimile on December 7, 2006, and it is deemed filed that day. Claimant's application for review was untimely. Without a timely application for review, the Commission lacked jurisdiction. Howse v. Lou Fusz Motor Co., 131 S.W.3d 851, 852 (Mo.App. E.D.2004). This Court's jurisdiction is derived from that of the Commission, and if it does not have jurisdiction, then neither does this Court. Id. Our only recourse is to dismiss the appeal.\\nThe Division's motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction.\\nGLENN A. NORTON and PATRICIA L. COHEN, JJ., Concur.\"}"
\ No newline at end of file
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+"{\"id\": \"8408745\", \"name\": \"Eleanor HICKERSON, Plaintiff-Appellant, v. McCarthy spice and blends, Defendant-Respondent\", \"name_abbreviation\": \"Hickerson v. McCarthy Spice & Blends\", \"decision_date\": \"2006-04-18\", \"docket_number\": \"No. ED86852\", \"first_page\": \"550\", \"last_page\": \"550\", \"citations\": \"196 S.W.3d 550\", \"volume\": \"196\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T01:56:36.102076+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: GARY M. GAERTNER, Sr., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.\", \"parties\": \"Eleanor HICKERSON, Plaintiff-Appellant, v. McCarthy spice and blends, Defendant-Respondent.\", \"head_matter\": \"Eleanor HICKERSON, Plaintiff-Appellant, v. McCarthy spice and blends, Defendant-Respondent.\\nNo. ED86852.\\nMissouri Court of Appeals, Eastern District, Division Two.\\nApril 18, 2006.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied June 1, 2006.\\nApplication for Transfer Denied Aug. 22, 2006.\\nJames E. Parrot, St. Louis, for appellant.\\nDavid Grebel, St. Louis, for respondent.\\nBefore: GARY M. GAERTNER, Sr., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.\", \"word_count\": \"158\", \"char_count\": \"1055\", \"text\": \"ORDER\\nPER CURIAM.\\nPlaintiff-Appellant Eleanor Hickerson appeals from the decision of the Circuit Court of St. Louis County, the Honorable Melvyn Wiesman presiding, granting Defendant-Respondent McCarthy Spice and Blend's motion for summary judgment. We affirm.\\nWe have thoroughly reviewed the record and the briefs of the parties, and no error of law appears. Therefore, an opinion would have no precedential value. The parties have been given a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b).\"}"
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+"{\"id\": \"8410102\", \"name\": \"CRESTWOOD SHOPS, L.L.C., Respondent, v. Sally HILKENE and Churchill in Crestwood, L.L.C., Appellants\", \"name_abbreviation\": \"Crestwood Shops, L.L.C. v. Hilkene\", \"decision_date\": \"2006-08-08\", \"docket_number\": \"No. WD 65694\", \"first_page\": \"641\", \"last_page\": \"657\", \"citations\": \"197 S.W.3d 641\", \"volume\": \"197\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T01:56:36.117981+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before JOSEPH M. ELLIS, P.J., ROBERT G. ULRICH, and RONALD R. HOLLIGER, JJ.\", \"parties\": \"CRESTWOOD SHOPS, L.L.C., Respondent, v. Sally HILKENE and Churchill in Crestwood, L.L.C., Appellants.\", \"head_matter\": \"CRESTWOOD SHOPS, L.L.C., Respondent, v. Sally HILKENE and Churchill in Crestwood, L.L.C., Appellants.\\nNo. WD 65694.\\nMissouri Court of Appeals, Western District.\\nAug. 8, 2006.\\nLisa A. Padden Weixelman, Kansas City, MO, Attorney for Appellants.\\nStephen J. Torline, Kansas City, MO, Attorney for Respondent.\\nBefore JOSEPH M. ELLIS, P.J., ROBERT G. ULRICH, and RONALD R. HOLLIGER, JJ.\", \"word_count\": \"7845\", \"char_count\": \"46623\", \"text\": \"ROBERT G. ULRICH, Judge.\\nSally Hilkene and Churchill in Crest-wood, L.L.C. (Churchill), owned by Ms. Hilkene, appeal the \\\"Partial Judgment for Declaratory Judgment and Injunction\\\" entered by the Jackson County Circuit Court in favor of Crestwood Shops, L.L.C. (Crestwood). The judgment found that a lease between Churchill and Ms. Hilkene, lessees, and Crestwood, lessor, was validly terminated and no longer legally in effect. Five points are presented on appeal. First, Ms. Hilkene argues that Crestwood did not accept her offer to rescind a lease because the acceptance was not a mirror image of the offer. Second, she argues that Crestwood could not rescind the lease because it was in breach of the lease. Third, she argues that the offer to rescind the lease did not comply with the Statute of Frauds. Fourth, she argues that an offer to rescind the lease had not been made. Finally, she argues that Crestwood could not have accepted the offer to rescind the lease because the offer was made subject to a condition precedent, which the trial court failed to find had occurred prior to the purported acceptance. The judgment is affirmed.\\nFacts\\nMs. Hilkene is the owner of Churchill, a store selling accessories, jewelry, hand bags, fashion clothing, interior design items, and home gifts. Churchill has operated a retail store since December 2003, in a shopping center owned by Crestwood. The shopping center is located in Kansas City, Missouri.\\nChurchill has been a successful business, and, as a result, outgrew its space and requested that Crestwood lease it any additional retail space when space became available. In December 2004, Crestwood offered to lease Churchill adjacent space in the same shopping center. The space was then occupied by a bookstore. Ms. Hilk-ene, as sole owner and officer of Churchill, executed a lease (Lease) with Crestwood for this additional space (Leased Space) on December 15, 2004, retained by Crest-wood, unsigned by it.\\nSubsequently, the bookstore entered into a lease termination agreement with Crestwood. Pursuant to this agreement, the bookstore agreed to terminate its lease with Crestwood and surrender the space by February 28, 2005. Crestwood signed the Lease with Churchill on January 28, 2005. Churchill's Lease was to commence March 1, 2005.\\nOver a period of a couple months, the relationship between Ms. Hilkene and Crestwood deteriorated because of three primary sources of contention. Ms. Hilk-ene asserted to Crestwood that the condition of the newly leased premises was unsatisfactory because of the presence of mold, a faulty foundation due to leaking water, and a defective HVAC system. Pri- or to taking possession of the Leased Space, Ms. Hilkene discovered damage to the foundation in the basement because of a prior leak and the presence of mold in the basement. She also became aware that the HVAC system needed to be replaced. Ms. Hilkene had other complaints about the Leased Space, including, among other things, that the bookstore had permitted an adjacent tenant to partition off and use portions of the Leased Space, that the Leased Space did not have a restroom or fire escape, and that the awnings were removed from the exterior of the Leased Space. The primary issues, however, were the mold, foundation, and HVAC system. Ms. Hilkene informed Scott Padon, Crest-wood's property manager, of these problems. When Ms. Hilkene took possession of the Lease Space on March 1, 2005, the problems had not yet been cured.\\nA series of conversations, emails, and letters between Ms. Hilkene, Mr. Padon, and other agents of Crestwood regarding the problems and them resolution commenced shortly after Ms. Hilkene discovered them. Ms. Hilkene desired to have the problems resolved quickly because she had a contractor waiting to renovate the interior of the Leased Space so that the second store location could open for business. Crestwood had a policy of requiring three bids if work would cost more than $2,500 and began the process of securing bids for the mold abatement. Crestwood also commenced steps to remedy the foundation damage and faulty HVAC system. In addition, Ms. Hilkene was required to submit to Crestwood her plans for renovating the Leased Space so that Crest-wood could approve them. She failed to submit her plans to the satisfaction of Crestwood.\\nAs the interaction between Ms. Hilkene and Crestwood became more contentious, both parties manifested a desire to communicate with the other party only in writing. In a certified letter addressed to Ms. Hilkene and dated March 15, 2005, Mr. Scott Padon, acting for Crestwood, addressed several issues, including Ms. Hilk-ene's planned improvements to the Leased Space, installation of a fire exit door, demising walls, and various outdoor design de tails. The letter did not address the mold, foundation, or HVAC system.\\nMs. Hilkene received the certified letter from Mr. Padon on March 17, 2005. She became frustrated from the delay that resulted from sending the letter certified and from the letter's failure to address the mold, foundation, or HVAC system. Ms. Hilkene conveyed her frustration by making numerous handwritten notes on the letter and faxing the letter, with the notes, to Mr. Padon. One of the handwritten notes was the following:\\nIF THERE ARE CONTINUED DELAYS & IGNORING IMP. FACTS IN THESE LETTERS I CAN RELEASE MYSELF FROM THIS LEASE AS OF 3-22-05.\\nAlso on March 17, 2005, Ms. Hilkene exchanged a series of email with Todd Miller, a friend and Churchill employee. Mr. Miller is also the son of Kaye Miller, one of the owners of Crestwood. The first email, at 12:45 p.m., reported that Churchill was closed because of her brother's death. Mr. Miller responded at 12:56 p.m. and inquired if he could be of assistance. Ms. Hilkene responded at 3:24 p.m. as follows:\\nYou can help me by killing scott padon and the landlords.\\nI want out of that f.g lease.\\nI received a certified letter that was so unprofessional and missing important issues that should have been in the letter. Just wasting time. The owners are idiots because they will lose the best builder in town to improve them space. They've dicked us around for almost a month. He can't do the job if he can't start on Monday. So I will get out of the lease if he's not doing it. Hell, the things they let shawver get away with, like selling erotica in th [sic] basement!\\nI feel they are harassing me over petty stuff. They know what Churchill is. The new space will be a better one, but I don't want to be there anymore. It's petty and unprofessional they way the have treated me and Andy.\\nLuckily, I have enough legal ways to leave.\\nLet them find someone else who will put the money into crestwood like I have. Good luck finding someone that stupid.\\nAt 3:50 p.m. on March 17, 2005, Ms. Hilk-ene sent the following email to Mr. Padon:\\nDear Scott,\\nI have faxed to you at 3:14 p.m. Today [sic] a response to your certified letter. We have wasted 2 days due to your sending a certified letter. And the letter did not address the most pertinent points, mold, water, and -hvac. How could I sign such an incomplete letter? Please rewrite the letter, being thorough and specific (what is the design of the door? Is it per the one george instructed andy to draw and I included with my plans? Will it accommodate large furniture?) How will mold and water be addressed and eradicated? Are they doing what you said they would do on the hvac? While they are resolving these issues, they should excuse me of all rent expenses.\\nI msh to release myself from the lease by March 2-\\u00edth, if the owners can't resolve the issues which cause concern for myself, andy fritzel, and my workers. More specifically the stachybotris present in the space. Also, Andy's schedule will not permit him to do the space after April 1. I would not have leased the space without his involvement.\\nAlso, my exterior signage will be like Bloomsday. Where he had his logo, I will have mine. I can get you a drawing next week, but this is petty to hold up the construction inside. Also, an awning to match aixois with \\\"churchill\\\" on it. Please include in the letter that any improvements, approved by owners, but paid for by me will be my property to take upon leaving.\\nThe exterior lanterns are a safety hazard for people walking to aixois. I liked Jim's idea to have a hanging lantern, similar to george's bracket, that would be high enough to not hurt anyone.\\nThe door stain that is existing is what I thought the space would have. New door would match it.\\nThis entire process should have been reviewed with me prior to March 1. This has been an ordeal for both myself and andy fritzel. It is unfortunate that the owners and leasing agents couldn't have been more professional in these specifics prior to the commencement of this lease. I will be on email only. I will be at the store briefly on Friday, but have family commitments through the weekend and monday.\\nIf you send another certified letter, please copy on email so more time is not wasted,\\nSally\\n(emphasis added).\\nMs. Hilkene emailed Mr. Padon again on March 18, 2005. In this email, she inquired whether he received her fax and advised him that he could contact her through email if he had questions. That same day, Crestwood, though its attorneys, wrote the following letter to Ms. Hilkene:\\nDear Sally:\\nCrestwood Shops, LLC is in receipt of your email correspondence to Scott Pa-don, Senior Property Manager and Agent for Crestwood Shops, LLC, dated March 17, 2005 (sent at 3:50 p.m.) wherein you indicate your request to be released from the lease of the space located at 301 East 55th Street by March 24, 2005.\\nCrestwood Shops, LLC hereby honors and accepts your request and both parties shall be released from any and all obligations to the other as of March 24, 2005. The existing lease between the parties for the space located at 309 East 55th Street shall remain unaffected hereby.\\nFurther correspondence was exchanged between the parties wherein it was clear that Crestwood considered the Lease to be terminated while Ms. Hilkene considered the Lease to still be effective.\\nChurchill filed a declaratory judgment action on April 7, 2005, seeking a declaration that the Lease had not been terminated. Crestwood filed its petition on April 8, 2005, seeking a declaration that the Lease had been terminated. The petitions were consolidated, and trial was had on May 11, 2005. The court's \\\"Partial Judgment for Declaratory Judgment and Injunction\\\" was entered on June 1, 2005. The trial court explicitly found a portion of Ms. Hilkene's testimony regarding whether she read the Lease not credible. It made the following relevant findings of fact:\\nIn February and early March 2005, Ms. Hilkene raised a number of complaints to Crestwood regarding the foundation, mold remediation, and HVAC system. There was no evidence Ms. Hilkene obtained inspections of the foundation or mold by a \\\"qualified inspector,\\\" as required by the Lease.\\nNo party ever proposed an abatement plan regarding the mold.\\nMs. Hilkene created a barrage of email demands and inquiries, directed at Mr. Padon.\\nMr. Padon knew of Ms. Hilkene's complaints and was required to obtain three bids for the mold abatement work.\\nBy March 14, 2005, Mr. Padon still did not have a mold abatement plan in place and was unable to provide a timetable to Ms. Hilkene.\\nThe mold was remediated by April 6, 2005.\\nThere was no credible evidence that the foundation problems interfered with Ms. Hilkene's use or improvement of the Leased Space.\\nThere was credible evidence that Crest-wood was in the process of contracting for work to the foundation.\\nThe last water damage occurred in August 2004, and there was no credible evidence that there was a water or foundation problem that, in March 2005, caused any threat of immediate damage or impairment of Ms. Hilkene's use of the Leased Space.\\nThere was no credible evidence that the remediation of the mold problem interfered with Ms. Hilkene's ability to continue with her improvements, construction, or modification of the Leased Space.\\nThere was no credible evidence that the presence of mold in the basement caused any delay in Ms. Hilkene's construction plans for the Leased Space. Crestwood's failure to obtain full mold remediation on or before March 17, 2005, did not amount to a material or substantial breach of the Lease.\\nOn March 17, 2005, Ms. Hilkene sent an email to Mr. Padon containing the following offer:\\nI wish to release myself from the lease by March 24th, if the owners can't resolve the issues which cause concern for myself, andy fritzel, and my workers. More specifically the stachybotris present in the space. Also, Andy's schedule will not permit him to do the space after April 1. I would not have leased the space without his involvement.\\nMs. Hilkene complained that Mr. Padon had sent a certified letter, thus wasting time, and stated that she preferred to have all communication made in writing. She established a clear pattern and preference for communicating with Mr. Pa-don by email.\\nBoth parties agreed to conduct transactions by electronic means. Based on the context and surrounding circumstances, the parties were in full agreement on their intention to conduct transactions by email.\\nMs. Hilkene's clear intention on March 17, 2005, was to get out of her lease obligations for the Leased Space. This intention is evidenced by her email to Mr. Padon in which she made the offer, by her email to Mr. Miller, and by her handwritten comments on Mr. Padon's March 15, 2005, letter.\\nMs. Hilkene's testimony that she did not intend her email of March 17, 2005, to Mr. Padon, to be an offer to terminate the lease is found to lack credibility. There is credible evidence that she did intend to void the lease, and that it was her clear intention to do so on March 17, 2005, when she sent her email to Mr. Padon.\\nCrestwood accepted Ms. Hilkene's offer and returned her deposit and first month's rent.\\nThe judgment made the following relevant conclusions of law:\\nCrestwood could reasonably believe that Ms. Hilkene's email of March 17, 2005, constituted an offer to terminate the Lease if Crestwood could not fulfill her demands by March 24, 2005. They made a timely and valid acceptance of Ms. Hilkene's offer. The acceptance of Ms. Hilkene's offer to terminate the lease effective March 24, 2005, constitutes a mirror image of her offer. This completed a valid contract.\\nEven if Crestwood was in breach of the Lease, this would not impede Ms. Hilk-ene's ability to make a valid offer to terminate the Lease. She had the legal capacity to make such an offer on behalf of Churchill and she did so.\\nThe offer conveyed by email, and the acceptance conveyed by certified mail, constituted a valid contract to terminate the lease. The two documents satisfy the requirements of the Statute of Frauds.\\nThe March 17, 2005, email from Ms. Hilkene to Mr. Padon satisfied the requirements of the Uniform Electronic Transactions Act. Ms. Hilkene's email was a valid written offer.\\nThe judgment decreed that the Lease was no longer legally in effect, and it was validly terminated.\\nThereafter, Churchill, Ms. Hilkene, and Crestwood jointly dismissed all remaining claims, making the judgment final. Churchill and Ms. Hilkene's timely notice of appeal followed.\\nStandard of Review\\nIn a court-tried case, the judgment of the trial court will be affirmed unless no substantial evidence supports it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Martin v. Reed, 147 S.W.3d 860, 861 (Mo.App. S.D.2004)(citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The trial court's judgment will be set aside only with a firm belief that the judgment is wrong. McRentals, Inc. v. Barber, 62 S.W.3d 684, 696 (Mo.App. W.D.2001). All evidence and inferences favorable to the judgment are accepted as true, while all contrary evidence and inferences are disregarded. Martin, 147 S.W.3d at 861. Deference is given to the trial court's findings regarding witness credibility and the trial court is free to believe or disbelieve all or part of the witnesses' testimony. Id; McRentals, Inc., 62 S.W.3d at 696. Deference is also given to a trial court's findings of fact. In re Estate of Moore, 136 S.W.3d 163, 164 (Mo.App. S.D.2004). Interpretation of a contract is a question of law and is subject to de novo review. Local 781 Int'l. Ass'n of Firefighters v. City of Independence, 996 S.W.2d 112, 115 (Mo.App. W.D.1999). When interpreting a contract, the overriding concern of the appellate court is to give effect to the intentions of the parties. Id.\\nPoint I\\nIn the first point relied on, Churchill and Ms. Hilkene argue that the trial court erred in concluding that the March 18, 2005, letter from Crestwood constituted an acceptance of an offer to rescind the Lease. They assert that the trial court erroneously applied the law because the purported acceptance did not mirror the terms of the alleged offer.\\nThe existence of a contract requires both an offer and acceptance. Walker v. Rogers, 182 S.W.3d 761, 768 (Mo.App. W.D.2006). Acceptance must be unequivocal and a \\\"mirror-image\\\" of the offer. Id. An acceptance that includes new or variant terms from the offer presented is a rejection of the original offer and a counteroffer. Pride v. Lewis, 179 S.W.3d 375, 379 (Mo.App. W.D.2005). A determination of whether an offer has been accepted depends upon what is actually said and done; it does not depend on the understanding or supposition of one of the parties. Walker, 182 S.W.3d at 768.\\nIn her March 17, 2005, email, Ms. Hilk-ene stated: \\\"I wish to release myself from the lease by March 24th, if the owners can't resolve the issues which cause concern for myself, andy fritzel, and my workers.\\\" The trial court found that this language was Ms. Hilkene's offer to terminate the Lease. In response to this email, Crestwood sent Ms. Hilkene a certified letter on March 18, 2005; the letter stated: \\\"Crestwood Shops, LLC hereby honors and accepts your request and both parties shall be released from any and all obligations to the other as of March 24, 2005.\\\" Ms. Hilkene contends that the acceptance is not a mirror image of the offer and, thus, that it is really a counteroffer, and there was no agreement to rescind the Lease.\\nShe asserts that her March 17, 2005, email only offered to release herself and Churchill from the Lease. It did not, she claims, offer to terminate the Lease or mutually release all of the parties from their responsibilities under the Lease. She asserts that the offer was to release herself from the Lease, not to rescind, void, or mutually release all parties from the Lease.\\nIn Woods ex rel. Woods v. Cory, 192 S.W.3d 450, 459-60, (Mo.App. S.D.2006), the defendant claimed that the language of acceptance introduced new or variant terms from the language of the offer and was, thus, a rejection and counter-offer. The language of the offer was to pay \\\"$35,000.00 to settle all cases and claims.\\\" Id. at 460. The language of the acceptance was to \\\"settle all matters connected with these cases for $17,5000.00 to each case.\\\" Id. The appellate court found that defendant's claim was without merit. Id. It stated that it \\\"is undisputed that Defendant offered to pay $35,000.00 to settle the two claims and Plaintiffs accepted $35,000.00 to settle both claims.\\\" Id. Thus, Woods teaches that the language used to extend and accept an offer does not have to be identical in order for a valid contract to result. Instead, the acceptance must not change the terms of the offer.\\nMs. Hilkene argues that Crestwood's acceptance was more than merely using different words to accept the offer. Instead, she asserts it changed the terms of the offer. She relies primarily upon Pride v. Lewis, 179 S.W.3d 375 (Mo.App. W.D.2005). In Pride, a potential homebuyer made an offer to purchase a home, with closing to take place on a certain date. Id. at 377. The sellers accepted the offer, but changed the closing date in the contract. Id. The sellers admitted that changing the closing date converted the acceptance into a counter-offer because the terms of the offer, namely the closing date, had been changed. Id. at 379. This court found that the buyer never accepted the counteroffer, and a valid contract did not result. Id. at 381.\\nMs. Hilkene uses a definition, first asserted by Crestwood, that the term \\\"release\\\" indicates a desire to \\\"terminate all of his/her rights and obligations under the agreement.\\\" She states that this definition does not encompass terminating the other party's obligations under the agreement. Ms. Hilkene's argument is logically flawed. The Lease was between Churchill and Ms. Hilkene as lessors and Crestwood as lessees. According to Ms. Hilkene's argument, her email was an offer to release both herself and Churchill, of which she is the sole shareholder and officer, from the Lease. She was offering, per her endorsement of Crestwood's definition of release, to terminate all of her rights and obligations under the Lease. Thus, she and Churchill would no longer be a party to the Lease, as they would have neither rights nor obligations under the Lease. Applying Ms. Hilkene's analysis, this would leave Crestwood as the sole party to the Lease. Crestwood would be a lessor without a lessee. It would have rights, but no party against whom to enforce them. It would have obligations, but no party to whom they were owed. If Ms. Hilkene's offer was to terminate all of her and Churchill's rights and obligations under the Lease, it was also an offer to terminate Crestwood's rights and obligations under the Lease as Crestwood could not remain the sole party to the Lease. The effect was to terminate the Lease entirely. When Crestwood accepted Ms. Hilkene's offer, it merely stated this fact. It did not change or add terms to the offer; it restated the offer and clarified the effect of releasing Ms. Hilkene and Churchill from the Lease. Crestwood's acceptance was a valid acceptance; it was not a counteroffer.\\nPoint denied.\\nPoint II\\nIn the second point relied on, Churchill and Ms. Hilkene argue that the trial court erred in concluding that Crestwood could rescind the Lease. They assert that the trial court erroneously declared and applied the law because Crestwood had already breached the Lease. They rely upon the rule that a party who has committed a contractual breach cannot later rescind the contract. Meyer Mill. Co. v. Baker, 328 Mo. 1246, 43 S.W.2d 794, 796-97 (1931); Landau v. St. Louis Pub. Serv. Co., 364 Mo. 1134, 273 S.W.2d 255, 257-58 (1954).\\nThe trial court made the following relevant finding:\\nEven if Crestwood was in breach of the Lease, this would not impede Ms. Hilk-ene's ability to make a valid offer to terminate the Lease. She had the legal capacity to make such an offer on behalf of Churchill and she did so.\\nIn essence, Ms. Hilkene argues that this finding is incorrect. She relies on Meyer Milling Co. v. Baker, 328 Mo. 1246, 43 S.W.2d 794, 796-97 (1931), and Landau v. St. Louis Public Service Co., 364 Mo. 1134, 273 S.W.2d 255, 257-58 (1954), for support of her claim. These two cases involved a defendant that breached a contract and then attempted to unilaterally terminate the contract. The cases are distinguishable from the case sub judice. A mutual agreement to terminate the contracts did not exist in either of the two cases as the trial court found occurred in this case. Ms. Hilkene cites the following language from Landau in support of her assertion:\\nHowever, even if defendant's action in mailing out this form of release could be construed as the manifestation of an intention to repudiate or breach the contract, the trouble with plaintiffs position is that she had first breached it. \\\"[A] party who has himself been guilty of the first substantial breach of contract cannot rescind the contract because of subsequent refusal or failure to perform by the other party.\\\"\\n273 S.W.2d at 258 (citation omitted). This language illustrates that a party who has breached a contract may not unilaterally choose to rescind the contract. In this case, Crestwood did not unilaterally rescind the Lease. Ms. Hilkene made an offer, and Crestwood accepted the offer. Thus, even if Crestwood were in breach of the Lease, which is not decided, it was not prevented from accepting Ms. Hilkene's offer to terminate the Lease. The trial court's finding was correct.\\nPoint denied.\\nPoint III\\nIn the third point relied on, Churchill and Ms. Hilkene argue that the trial court erred in concluding that Ms. Hilkene's March 17, 2005, email satisfied the Statute of Frauds as a signed writing. They assert that the trial court erroneously applied the law because the parties had not agreed to conduct Lease transactions by electronic means.\\nNone of the parties dispute that because the Lease was for a term of five years, it was within the purview of the Statute of Frauds. \\u00a7 432.010, 432.060. Thus, like the Lease itself, the termination of the Lease must also be in writing to comport with the Statute of Frauds. Id. This is also not disputed by the parties. The trial court relied upon the Uniform Electronic Transactions Act (UETA), section 432.200 et seq., to conclude that Ms. Hilkene's March 17, 2005, email to Crest-wood was a signed writing comporting with the Statute of Frauds. The UETA gives legal effect to contracts formed by electronic record, but its application is limited to transactions where all the parties to the agreement have agreed to conduct transactions by electronic means. \\u00a7 432.220.2. Section 432.220.2 states:\\nSections 432.200 to 432.295 apply only to transactions between parties each of which has agreed to conduct transactions by electronic means. Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties' conduct.\\nMs. Hilkene argues in this third point that her March 17, 2005, email does not qualify as a signed document under the Statute of Frauds because the parties did not agree to conduct transactions by electronic means. She relies on the following Lease provisions:\\nLandlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises for a term . commencing on the Commencement Date and ending on the Expiration Date set forth in Article 1, unless sooner terminated as provided herein .\\n. Except as otherwise expressly provided herein, no subsequent alteration, amendment, change or addition to this Lease, nor any surrender of the Premises, shall be binding upon Landlord or Tenant unless reduced to writing and signed by them.\\nThis Lease comprises the entire agreement and understanding of the parties; and all prior negotiations, correspondences, proposals, verbal understandings and other prior documents are hereby merged into this Lease, which shall not be amended or modified except by a formal written instrument executed by both parties.\\nMs. Hilkene also states that the Lease and an amendment to the Lease were executed by her on behalf of Churchill. She observes that the emails between her and Crestwood or its agents were signed by her, but not explicitly on behalf of Churchill. All of this, she asserts, is evidence that the parties did not agree to conduct transactions via email.\\nThe trial court made the following relevant findings of fact:\\nMs. Hilkene created a barrage of email demands and inquiries, directed at Mr. Padon.\\nMs. Hilkene complained that Mr. Padon had sent a certified letter, thus wasting time, and stated that she preferred to have all communication made in writing. She established a clear pattern and preference for communicating with Mr. Pa-don by email.\\nBoth parties agreed to conduct transactions by electronic means. Based on the context and surrounding circumstances, the parties were in full agreement on their intention to conduct transactions by email.\\nThe trial court also made the following relevant conclusions of law:\\nThe offer conveyed by email, and the acceptance conveyed by certified mail, constituted a valid contract to terminate the lease. The two documents satisfy the requirements of the Statute of Frauds.\\nThe March 17, 2005, email from Ms. Hilkene to Mr. Padon satisfied the requirements of the Uniform Electronic Transactions Act. Ms. Hilkene's email was a valid written offer.\\nSeveral pieces of evidence admitted at trial support the trial court's findings and conclusions. In an email Mr. Padon sent to Ms. Hilkene on March 1, 2005, he stated: \\\"Because of the accusations voiced during our meeting last Friday, I would prefer to have my correspondence with you in writing, which unintentionally delayed my response to you because I need to be in my office to email.\\\" Ms. Hilkene responded with an email stating: \\\"I prefer not to call you, and have been advised to have all communications with you in writing.\\\"\\nMs. Hilkene acknowledges this evidence, but claims it only evidences an agreement to communicate or correspond via email. It does not, she asserts, manifest an agreement to conduct transactions via email. In her March 17, 2005 email, sent at 3:50 p.m., Ms. Hilkene stated: \\\"I will be on email only.\\\" This is the email in which Ms. Hilkene made the offer to terminate the Lease, which Crestwood subsequently accepted. In this email, Ms. Hilkene makes her offer and states that she is available only through email. By accepting the offer, Crestwood agrees that such an offer, a transaction, may be done through email. This is substantial evidence that the parties agreed to transact business via email.\\nSection 432.220.2 requires the trial court to examine the \\\"context and surrounding circumstances, including the parties' conduct\\\" in determining whether the parties agreed to conduct transactions by electronic means. As noted above, the parties communicated primarily through email. They explicitly agreed to communicate only in writing. Further, Ms. Hilkene complained when Crestwood communicated with her via a certified letter because the letter took two days to reach her. She demonstrated a preference for email because of its speed. Moreover, she conveyed her offer to terminate the contract via email and stated that she could only be reached through the use of email. The trial court found that this evidence was the manifestation of an intent to conduct business through email. Deference is given to a trial court's findings of fact. Moore, 136 S.W.3d at 164. The trial court's findings and conclusions are not error.\\nPoint denied.\\nPoint IV\\nIn the fourth point relied on, Churchill and Ms. Hilkene argue that the trial court erred in concluding that the March 17, 2005, email constituted an offer to rescind the Lease between Churchill and Crestwood. They assert that the trial court erroneously applied the law to the facts because the trial court failed to consider whether the surrounding circumstances, the method of communications, and the language used supported its finding. Instead of an offer, they claim that the March 17, 2005, email was an attempt to continue negotiations under the terms of the Lease as illustrated by the surrounding circumstances, the method of communications, and the language used.\\nMs. Hilkene argues that the language of the March 17, 2005, email belies its characterization as an offer to terminate the Lease. This is because she stated, \\\"I wish to release myself from the lease\\\" and did not explicitly state an offer to terminate, rescind, or cancel the Lease. She claims that the email indicates her intent to exercise her option not to pay rent or otherwise perform her obligations under the Lease. She also reiterates her argument from Point I, that the email does not state an offer to release Crestwood from the Lease; it only mentions herself. In addition, she notes that the remainder of the March 17, 2005, email discusses fixture placement and signage, thus evincing her intent to occupy the Leased Space.\\nFurther, Ms. Hilkene reiterates her argument from Point III that she expressed no intention to terminate the Lease because, under the terms of the Lease, a termination is required to be a formal writing executed by both parties. She notes that Crestwood required a formal written amendment when it previously amended the Lease and that it executed a formal written termination agreement when the prior tenant, a bookstore, terminated its lease.\\nMoreover, Ms. Hilkene states that she previously indicated a desire to be released from the Lease if her concerns were not addressed in the comments she wrote on the March 15, 2005, certified letter sent to her by Mr. Padon and then faxed by her to Mr. Padon. Despite asserting this inten tion, she continued to negotiate with Crest-wood regarding her concerns. This, she claims, indicates that her use . of the word \\\"release\\\" was not an offer to terminate the contract and that she intended to continue negotiating, as she had the previous time she used the word \\\"release.\\\"\\nFinally, she argues that, because of her frustration regarding the various problems with the leased Space and because of the mental distress she experienced that resulted from her brother's death, she was not in a good mental state when she wrote the March 17, 2005, email. She argues that the trial court failed to consider these circumstances and her emotional distress.\\nAll of the above, she argues, is evidence that the March 17, 2005, email was not an offer to terminate the Lease. She claims that the trial court failed to consider this evidence and arguments when it found that the email was an offer. The trial court made the following relevant findings of fact:\\nOn March 14, 2005, in an email to Mr. Padon, Ms. Hilkene made a written request that her rent should not start until \\\"you finish the work that should have been completed before March 1. There were months before where you could have acquired all your bids and done the work....\\\"\\nCrestwood and Mr. Padon had not responded to Ms. Hilkene's request to abate her rent obligation, when on March 17, 2005, Ms. Hilkene sent another email to Mr. Padon, containing the following offer:\\nI wish to release myself from the lease by March 24th, if the owners can't resolve the issues which cause concern for myself, andy fritzel, and my workers. More specifically the stachybotris present in the space. Also, Andy's schedule will not permit him to do the space after April 1. I would not have leased the space without his involvement.\\nOn March 17, 2005, at 3:24 p.m., within the same hour that she emailed to Mr. Padon her desire to be released from the Lease, Ms. Hilkene sent an email to the son of another Crestwood tenant and LLC member, indicating her desire and intention to be released from the Lease. She wrote, in part, \\\"I want out of that f.g lease.... Luckily, I have enough legal ways to leave. Let them find someone else who will put money into Crestwood like I have.... \\\" The manner in which this email was delivered was further evidence of her desire and intent that the message be communicated to the shop owner LLC member. Also in her handwritten response to Mr. Padon's letter of March 15, 2005, Ms. Hilkene wrote: \\\"If there are continued delays ignoring imp. Facts in these letters I can release myself from this lease as of 3-22-05.\\\" Ms. Hilkene's clear intention on March 17, was to get out of her Lease obligation for the 301 premises.\\nMs. Hilkene's testimony that she did not intend her email of March 17, 2005, to Mr. Padon, to be an offer to terminate the lease is found to lack credibility. There is credible evidence that she did intend to void the lease, and that it was her clear intention to do so on March 17, 2005, when she sent her email to Mr. Padon.\\nIt also made the following relevant conclusions of law:\\nCrestwood could reasonably believe that Ms. Hilkene's email of March 17, 2005, constituted an offer to terminate the Lease if Crestwood could not fulfill her demands by March 24, 2005. They made a timely and valid acceptance of Ms. Hilkene's offer. The acceptance of Ms. Hilkene's offer to terminate the lease effective March 24, 2005, constitutes a mirror image of her offer. This completed a valid contract.\\nThe offer conveyed by email, and the acceptance conveyed by certified mail, constituted a valid contract to terminate the lease. The two documents satisfy the requirements of the Statute of Frauds.\\nThese findings of fact reflect that the trial court considered all of the evidence, including that Ms. Hilkene had previously used the word \\\"release\\\" and that she was seeking a rent abatement, found that she lacked credibility, and determined that it was her intent to offer to terminate the Lease in her March 17, 2005, email. Generally, intent is a question of fact. Goff v. Case, 17 S.W.3d 574, 578 (Mo.App. W.D.2000). Deference is given to the trial court's findings regarding witness credibility and the trial court may believe or disbelieve all or part of the witnesses' testimony. Martin, 147 S.W.3d at 861; McRentals, Inc., 62 S.W.3d at 696. Deference is also given to a trial court's findings of fact. Moore, 136 S.W.3d at 164. The trial court simply did not believe Ms. Hilkene's testimony or evidence that she did not intend to offer to terminate the Lease. This was not error. See, e.g., Luebbert v. Simmons, 98 S.W.3d 72, 78-79 (Mo.App. W.D.2003)(In response to woman's argument that she lacked the necessary intent to be bound when signing a promissory note because she was drunk and joking, the appellate court stated that \\\"[t]his was a credibility call\\\" and that the trial court was free to disbelieve the woman's account of the events.).\\nPoint denied.\\nPoint V\\nIn the fifth point relied on, Churchill and Ms. Hilkene argue that the trial court erred in concluding that Crest-wood accepted the alleged offer to rescind the Lease. They assert that the trial court erroneously applied the law to the facts because the alleged offer was subject to a condition precedent, which the trial court failed to find had occurred prior to Crestwood's purported acceptance.\\n\\\"Under certain circumstances . a condition precedent can qualify the very existence of a contract, such as when the terms of the offer or a statute impose a condition precedent upon the validity of a contract.\\\" MECO Sys., Inc. v. Dancing Bear Entm't, Inc., 42 S.W.3d 794, 803 (Mo.App. S.D.2001). Ms. Hilkene's offer was made with the following language:\\nI wish to release myself from the lease by March 24th, if the owners can't resolve the issues which cause concern for myself, andy fritzel, and my workers. More specifically the stachybotris present in the space. Also, Andy's schedule will not permit him to do the space after April 1. I would not have leased the space without his involvement.\\nThe offer was made on March 17, 2005, and Crestwood accepted it on March 18, 2005. Ms. Hilkene now argues that Crest-wood could not have accepted the offer until March 24, 2005, and only then if the issues of concern had not been resolved. She asserts that the arrival of March 24, 2005, without resolution of the problems, was a condition precedent to the formation of an agreement to terminate the Lease. Ms. Hilkene argues that no evidence was presented that Crestwood could not resolve the mold issue by March 24, 2005. She also claims that the trial court did not make a finding that the condition precedent occurred.\\nAt trial, Mr. Padon testified that the mold was remediated by April 6, 2005. Kaye Miller, one of the three managing partners of Crestwood, testified that when they received Ms. Hilkene's March 17, 2005, offer via email, they discussed it. She stated that \\\"it was absolutely impossible\\\" to complete the mold work by March 24, 2005, and, because of this, Crestwood accepted Ms. Hilkene's offer. She also testified that Crestwood could not meet Ms. Hilkene's conditions because the mold remediation would take ten days to two weeks to complete once a company was hired and that, as of March 17, 2005, Crestwood had not even received all the bids. The trial court made the following relevant findings of fact:\\nBy March 14, 2005, Mr. Padon still did not have a mold abatement plan in place and was unable to provide a timetable to Ms. Hilkene.\\nThe mold was remediated by April 6, 2005.\\nThe trial court made the following relevant conclusions of law:\\nCrestwood could reasonably believe that Ms. Hilkene's email of March 17, 2005, constituted an offer to terminate the Lease if Crestwood could not fulfill her demands by March 24, 2005. They made a timely and valid acceptance of Ms. Hilkene's offer. The acceptance of Ms. Hilkene's offer to terminate the lease effective March 24, 2005, constitutes a mirror image of her offer. This completed a valid contract.\\nThe judgment also contained the following:\\nIT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Commercial Lease between Crestwood Shops, L.L.C. and Sally S. Hilkene and Churchill's in Crestwood was validly terminated, effective March 24, 2005.\\nThe evidence was that Crestwood was unable to remediate the mold by March 24, 2005. The mold was not actually remediated until April 6, 2005. Because of the inability of Crestwood to remediate the mold by March 24, 2005, Crestwood accepted the offer. The trial court recognized the existence of the condition precedent and decreed that the Lease was terminated effective March 24, 2005, the date set by Ms. Hilkene. Implicit in the judgment, the trial court found that the condition precedent did not occur. If it had, there would not have been an agreement to terminate the Lease.\\nMs. Hilkene further argues that her offer did not require that the mold be abated by March 24, 2005. Instead, it required that the mold be \\\"resolved\\\" by that date, meaning that a plan of action be in place by that date. Interpretation of a contract is a question of law and is subject to de novo review. Local 781 Int'l. Ass'n of Firefighters, 996 S.W.2d at 115. Ms. Hilkene and Mr. Padon exchanged several emails. In these, Ms. Pa-don informed Ms. Hilkene that he was in the process of obtaining bids and could not develop a timetable until all bids were received. In a March 14, 2005, email to Mr. Padon, Ms. Hilkene made a written request that her rent should not start until \\\"you finish the work that should have been completed before March 1. There were months before where you could have acquired all your bids and done the work....\\\" In this email, she was requesting the work to be completed, not that a plan of action be initiated. Also in these emails, Ms. Hilkene informed Ms. Padon that her contractor could not do the remodeling work after April 1 and that she would not have leased the additional space if she knew she would have to use another contractor. Given this, a reasonable interpretation of the word \\\"resolve\\\" is that Ms. Hilkene wanted to terminate the Lease if the mold was not abated by March 24, 2005, so that she could begin remodeling on that date. The trial court interpreted the word this way, evidenced by its judgment, and so does this court. Further, even if the word resolve were ambiguous, it would be construed against Ms. Hilkene, the drafter. Byrd v. Frank B. Wilson Trust, 182 S.W.3d 701, 706 (Mo.App. W.D.2006).\\nPoint denied\\nConclusion\\nAll of Ms. Hilkene and Churchill's points are denied, and the judgment is affirmed.\\nAll concur.\\n. Ms. Hilkene was sole owner and officer of Churchill in Crestwood, L.L.C., and during all relevant events acted for and on behalf of the corporation and herself.\\n. Ms. Hilkene's brother died on approximately March 15, 2005.\\n. Shawver refers to the proprietor of the bookstore, the former tenant.\\n. Andy Fritzel is the contractor Ms. Hilkene hired to renovate the Leased Space.\\n. This is the variety of mold found in the basement of the Leased Space.\\n. Bloomsday is the former tenant, the bookstore.\\n. Aixois is a neighboring business.\\n. Ms. Hilkene states that Crestwood stated: \\\"Crestwood has accepted your offer of March 17th and considers both parties to be released from the lease for the Premises, effective March 24, 2005.\\\" She does not indicate where this is located in the record. The judgment found that Crestwood accepted the offer with the language used in the opinion. This language is from the certified letter sent to Ms. Hilkene by Crestwood on March 18, 2005.\\n. All statutory references are to RSMo 2000 unless otherwise stated.\\n. All references to the Uniform Electronic Transactions Act are to RSMo Cum.Supp. 2003 unless otherwise stated.\\n. This provision is located in Article 3 of the Lease.\\n. This provision is located in Article 38.8 of the Lease.\\n. This provision is located in Article 38.10 of the Lease.\\n. Ms. Hilkene may be implying that her March 17, 2005, email was not an offer to terminate the contract because such an offer violated the cited provisions of the Lease or because the offer was not signed explicitly by her on behalf of Churchill. The only argument raised in the point relied on is that the parties did not agree to conduct transactions by electronic means. \\\"Issues not encompassed by the point relied on and raised only in the argument portion of the brief are not preserved for review.\\\" Pearson v. Pearson, 22 S.W.3d 734, 739 n. 4 (Mo.App. W.D.2000) (internal quotation marks and citation omitted). Thus, any argument outside of whether evidence was presented that the parties agreed to conduct transactions through email is not considered.\\n. In the reply brief, Ms. Hilkene argues that the trial court failed to state what \\\"credible evidence\\\" existed in the record to conclude that the March 17, 2005, email was an offer from Churchill to rescind the Lease. Ms. Hilkene does not cite authority for the proposition that the trial court was required to make such a finding. Further, the trial court's findings cite the correspondence between Ms. Hilkene and Mr. Padon and Mr. Miller as evidence of her intent to make such an offer and that such an offer was made.\\n. This is the variety of mold found in the basement of the Leased Space.\\n. Ms. Hilkene argues that a finding was required in the judgment that the mold issue could not be resolved before March 24, 2005. She cites no authority requiring such a finding, however.\"}"
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+"{\"id\": \"8435245\", \"name\": \"Keith LANE, Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"Lane v. State\", \"decision_date\": \"2006-04-04\", \"docket_number\": \"No. ED 85988\", \"first_page\": \"881\", \"last_page\": \"881\", \"citations\": \"187 S.W.3d 881\", \"volume\": \"187\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T22:44:47.539795+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.\", \"parties\": \"Keith LANE, Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"Keith LANE, Appellant, v. STATE of Missouri, Respondent.\\nNo. ED 85988.\\nMissouri Court of Appeals, Eastern District, Division One.\\nApril 4, 2006.\\nScott Thompson, St. Louis, for appellant.\\nJeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for respondent.\\nBefore MARY K. HOFF, P.J., and CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.\", \"word_count\": \"362\", \"char_count\": \"2233\", \"text\": \"ORDER\\nPER CURIAM.\\nKeith Lane (Movant) appeals from the motion court's judgment denying his Rule 29.15 motion for post-conviction relief without an evidentiary hearing. The trial court convicted Movant of two counts of first-degree statutory rape, in violation of Section 566.032 RSMo 2000 , four counts of statutory sodomy, in violation of Section 566.062, two counts of incest, in violation of Section 568.020, and two counts of abuse of a child, in violation of Section 568.060. After finding Movant to be a prior and persistent offender and a predatory sexual offender, the trial court sentenced Movant to: 1) two consecutive terms of life imprisonment on the rape counts, which were to be served consecutively to all other counts; 2) four terms of life imprisonment on the sodomy counts, one of which was to be served consecutively to the sentences for rape and three of which were to be served concurrently with each other; 3) two concurrent ten-year terms of imprisonment on the incest counts; 4) and two concurrent twenty-year terms of imprisonment on the child abuse counts. Movant appealed the judgment of his conviction and sentence, and this Court affirmed in State v. Lane, 131 S.W.3d 855 (Mo.App. E.D.2004). Mov-ant thereafter filed his pro se and amended motions, pursuant to Rule 29.15.\\nWe have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no prec-edential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).\\n. All subsequent statutory citations are to RSMo 2000, unless otherwise indicated.\"}"
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+"{\"id\": \"8449295\", \"name\": \"Rachel SILMAN, Claimant-Appellant, v. SIMMONS' GROCERY & HARDWARE, INC., and Missouri Division of Employment Security, Employer/Insurer-Respondents\", \"name_abbreviation\": \"Silman v. Simmons' Grocery & Hardware, Inc.\", \"decision_date\": \"2006-11-13\", \"docket_number\": \"No. 27506\", \"first_page\": \"754\", \"last_page\": \"757\", \"citations\": \"204 S.W.3d 754\", \"volume\": \"204\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:18:54.211036+00:00\", \"provenance\": \"CAP\", \"judges\": \"PARRISH, J. and SCOTT, J., concur.\", \"parties\": \"Rachel SILMAN, Claimant-Appellant, v. SIMMONS\\u2019 GROCERY & HARDWARE, INC., and Missouri Division of Employment Security, Employer/Insurer-Respondents.\", \"head_matter\": \"Rachel SILMAN, Claimant-Appellant, v. SIMMONS\\u2019 GROCERY & HARDWARE, INC., and Missouri Division of Employment Security, Employer/Insurer-Respondents.\\nNo. 27506.\\nMissouri Court of Appeals, Southern District, Division One.\\nNov. 13, 2006.\\nChristopher L. Yarbro, Poplar Bluff, MO, for Appellant.\\nLarry R. Ruhmann, Jefferson City, MO, for Respondent.\", \"word_count\": \"1250\", \"char_count\": \"7828\", \"text\": \"NANCY STEFFEN RAHMEYER, Presiding Judge.\\nRachel Silman (\\\"Appellant\\\") appeals the denial of her application for employment security benefits; she was denied benefits based upon misconduct. We affirm.\\nThis Court may modify, reverse, remand for rehearing or set aside the decision of the Missouri Division of Employment Security (\\\"the Commission\\\") when there is insufficient competent evidence in the record to warrant the decision. Section 288.210. Whether an employee's actions constitute misconduct associated with the employee's work is a question of law. Dixon v. Division of Employment Security, 106 S.W.3d 536, 540 (Mo.App. W.D. 2003). We, however, must accept the Commission's judgment on the evidence and defer to the Commission on determinations regarding weight of the evidence and the credibility of witnesses. Id.\\nMisconduct is\\nan act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his or her employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.\\nSection 288.030.1(24); see also Brown v. Division of Employment Security, 947 S.W.2d 448, 450 (Mo.App. W.D.1997). For a claimant's actions to be considered misconduct, there must be some form of \\\"willfulness\\\" on behalf of the claimant. Scrivener Oil Company, Inc. v. Division of Employment Security, 184 S.W.3d 635, 640 (Mo.App. S.D.2006). The employer has the burden to prove that the employee's action constitutes misconduct. Dixon, 106 S.W.3d at 541.\\nWith that standard of review in mind, we address the facts. Appellant was employed by Simmons' Grocery & Hardware for approximately eighteen months as a cook and cash register attendant. On September 23, 2005, the corporate secretary, Thomas Simmons (\\\"Simmons\\\"), was monitoring Appellant in performing her job duties. He observed her remove a box of diet pills from a product display and place the pills within her apron. Afterwards, Appellant walked to her cook area, removed the pills from her apron, threw the box container in the nearest trash receptacle, and placed the pills in her purse. Near the end of her shift, Appellant purchased other items from the store and attempted to leave. Simmons checked the other register to see if Appellant had paid for the diet pills but she had not. He approached Appellant and informed her she had a problem. He told her he had observed her placing some pills within her purse that she had failed to pay for. He asked her to follow him to the upstairs office to further discuss the incident.\\nAppellant's immediate supervisors, Stephanie Reynolds and Marilyn Simmons, accompanied the two to Simmons' office. After Simmons confirmed that Appellant had purchased all of the items within her bag, he asked Appellant about the pills in her purse. At first, Appellant claimed she had paid for them separately. Later, she stated \\\"I don't think I paid for 'em, you know.... [MJaybe I just made, you know, a wrong decision here, you know. I'm sorry if I've done something wrong, you know.\\\" After Simmons fired Appellant, he asked a co-worker, Aimee Million, if she knew that Appellant had taken the diet pills and put them in her pocket. Ms. Million told Simmons that she did not know that Appellant had taken the diet pills.\\nAppellant filed for unemployment benefits. The employer filed a protest pursuant to section 288.070.1 alleging that the \\\"[Appellant] was fired because she was caught putting items in her purse without paying for them.\\\" Appellant later provided the Commission with evidence that Ms. Million remembered ringing up the pills allegedly stolen by Appellant and accepted money for the same early in Appellant's shift that day. Appellant further supplied a statement of Elizabeth Farris, who claimed Simmons had commented he could not prove Appellant stole the pills from the store. The Commission determined that Appellant was disqualified for unemployment benefits because she was discharged for taking a bottle of medicine without paying for it and she was aware that all purchases had to be paid for prior to leaving the store. The Commission specifically found that Appellant's testimony as to payment for the pills was unworthy of credit.\\nAppellant brings two points on appeal, both challenging the sufficiency of the evidence for the finding by the Commission that Appellant had committed misconduct. Appellant's first point claims that her actions do not legally constitute misconduct because there was no evidence of repeated conduct or pattern of thievery and error. The second point claims the Commission erred in finding misconduct in view of the \\\"overwhelming\\\" evidence supplied by Appellant. We reject both claims, but address them in reverse order for ease of discussion.\\nAs noted by our standard of review, the Commission determines the credibility of witnesses and the Commission determined that Appellant's claims regarding the payment for the pills were not credible. The Commission was free to disregard the later statements of Ms. Million that Appellant had paid for the pills in light of her lack of memory on the day of the incident. The Commission was also free to disregard the contradictory statements of Appellant regarding whether she paid for the pills or not. We, therefore, accept as true that Appellant took the diet pills off the shelf, eventually placed them in her purse, and intentionally did not pay for them. Sufficient evidence exists in the factual finding of misconduct by the Commission. Point II is denied.\\nThe next issue to decide is whether Appellant's actions constitute misconduct as a matter of law. We find that they do. Appellant claims that she was busy on the day she was fired and that the events of that one day do not constitute misconduct because it was not a repeated conduct or pattern of thievery. There is no such requirement that a single act of theft cannot be misconduct as used in section 288.050.2. Appellant cites to cases where the appellate courts reversed a finding of misconduct when the claimant was fired for negligence at the workplace. Appellant was not negligent when she took the pills from the shelf, placed them in her apron, opened the box, threw it into the trash and placed the pills in her purse. Although she claimed on the day of the incident that she may have forgotten to pay for them, the Commission found that testimony not to be credible. We must accept then that Appellant committed a willful act in intentionally not paying for the pills. A single act can constitute misconduct under the Missouri Employment Security Law. See Circuit Court of Jackson County v. Division of Employment Security, 936 S.W.2d 611, 613-14 (Mo.App. W.D.1997)(finding an applicant for unemployment benefits committed misconduct in using disruptive and aggressive behavior while attempting to collect fees for the processing of papers and using official identification while working as a private citizen); Acord v. Labor Indus. Relations Comm'n, 607 S.W.2d 174, 176 (Mo.App. S.D.1980) (finding a single act of swearing at supervisor constituted misconduct). Point I is denied.\\nThe judgment is affirmed.\\nPARRISH, J. and SCOTT, J., concur.\\n. All references to statutes are to RSMo 2000, unless otherwise specified.\"}"
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+"{\"id\": \"8728592\", \"name\": \"John A. Goebel, Employee, Respondent, v. Missouri Candy Company, Employer, and T. H. Mastin & Company, Insurer, Appellants\", \"name_abbreviation\": \"Goebel v. Missouri Candy Co.\", \"decision_date\": \"1932-06-07\", \"docket_number\": \"\", \"first_page\": \"112\", \"last_page\": \"120\", \"citations\": \"227 Mo. App. 112\", \"volume\": \"227\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"St. Louis Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:11:01.839602+00:00\", \"provenance\": \"CAP\", \"judges\": \"Said, P. J., and Nipper, J., concur.\", \"parties\": \"John A. Goebel, Employee, Respondent, v. Missouri Candy Company, Employer, and T. H. Mastin & Company, Insurer, Appellants.\", \"head_matter\": \"John A. Goebel, Employee, Respondent, v. Missouri Candy Company, Employer, and T. H. Mastin & Company, Insurer, Appellants.\\n50 S. W. (2d) 741.\\nSt. Louis Court of Appeals.\\nOpinion filed June 7, 1932.\\nFordyce, White, Mayne \\u00e9 Williams and Paul S. Schmid for appellants. .\\nArthur L. Wachwitz for respondent.\", \"word_count\": \"2045\", \"char_count\": \"12056\", \"text\": \"BECKER, J.\\nThis is an appeal from the judgment of the circuit court affirming.an award of the Missouri Workmen's Compensation Commission.\\nIt is sufficient for tbe purposes of this record to state that the employee had sustained the loss of four fingers on his right hand some twenty years prior to September, 1928, and that on September 10, 1928, while in the employ of the defendant employer, he met with an accident resulting in the loss of his left hand. The Commission held that 'the condition resulting to the employee was a permanent total disability, and because prior to the accident here in question the claimant had suffered a previous disability, allowed him as compensation \\\"two-thirds of that for permanent total disability in other cases,\\\" under section 3317, Revised Statutes of Missouri 1929.\\nThe appealing employer and insurer contend here: First, that the award for permanent total disability in this case is not justified in that there is no substantial competent testimony in the record to warrant such finding; second, that under the proper construction of section 3317, Revised Statutes of Missouri 1929, in this case, from the resulting condition there should be deducted the previous disability to the right hand suffered twenty years previous, whereas the Commission, in making its final award, made no such deduction.\\nWe first direct our attention to the question as to whether or not there is sufficient competent evidence in the record to warrant a finding of permanent total disability.\\nWe have in mind that on appeal, in the absence of fraud, the finding of facts made by the Commission within its powers is conclusive and binding and that such finding of facts and award' of the Commission have the force and effect of the verdict of a jury. [Leilich v. Motor Car Co., 328 Mo. 112, 40 S. W. (2d) 601; Jones v. Coal Co. (Mo. App.), 46 S. W. (2d) 196; Rolens v. Constr. Co. (Mo. App.), 24 S. W. (2d) 1077; Kinder v. Hannibal Car Wheel & Fdry. Co. (Mo. App.), 18 S. W. (2d) 91.]\\nFurthermore, in determining whether or not an award made by the Commission is justified by the evidence on appeal, we consider only the evidence most favorable in support of such verdict, together with all reasonable inferences which may be drawn therefrom to support the conclusion of the Commission, and will disregard any unfavorable testimony where it is contradicted by the evidence supporting the conclusion of the Commission. [Leilich v. Motor Car Co., supra; Jones v. Coal Co., supra; Schulte v. Tea & Coffee Co. (Mo. App.), 43 S. W. (2d) 832.]\\nBy section 3316(b), Revised Statutes of Missouri 1929, of our Workmen's Compensation Act the loss of both eyes or sight thereof, loss of both hands or the use thereof, and an injury resulting in practically total and permanent paralysis, or an injury resulting in imbecility or insanity, when caused ly the accident, shall be conclusively presumed to be permanent total disabilities \\\"and in all other cases permanent total disability shall be determined in accordance with the facts.\\\" Therefore since claimant's entire disability has not been \\\"caused by the accident\\\" herein, total permanent disability cannot in any event be presumed; instead it became the duty of the Workmen's Compensation Commission to determine the extent of the claimant's disability \\\"in accordance with the facts.\\\"\\nOur examination of the record brings us to the conclusion that the finding of facts by the Commission that claimant has suffered a total permanent disability is supported by sufficient competent evidence.\\nIt is admitted claimant, in the present accident, lost his left hand and that years before claimant had lost the four fingers of his right hand. Goebel, the employee, himself testified that he was working as assistant foreman for the Missouri Candy Company off and on for nineteen years, and that among other things it was his duty, when anybody was absent, to undertake to do the job of that particular absentee, so that if a candy maker or a cream man or any one else failed to show up \\\"it was up to Goebel\\\" to keep that department going. So, too, if a department got behind it was his duty to pitch in and help them out, so that the actual work required of him varied materially, \\\"sometimes required the handling of machinery and the lifting of objects, such as sometimes putting candy on counters; sometimes turning valves off and on beneath kettles or getting up batches.\\\" He further testified that after the present accident he could no longer shave himself; that in eating he was not able to use a knife for any purpose but that he could make \\\"very little\\\" use of a fork with the right hand; that he never tried to carry any object, such as a box, with his right hand and he did not see how he could; that- the four fingers of his right hand are cut off down to the knuckles \\\"which is where the fingers join the palm of the right hand;\\\" and he testified that he was unable to do anything with his right hand. Claimant further testified that up to the time of the additional hearing (February 17, 1931) he had \\\"not yet been able to find any work,\\\" that he could do; that he had applied to the Red Cross and \\\"everybody else to try to find some position:\\\" that he had been back to his old employer for a job twice and had been told by his former boss, Mr. Murphy, that he would look out for him but that no job had been found for him; that he could not now do any of the work that he had done when enrol oved by the Missouri Candy Company, the employer.\\nWe note also that at the original hearing in'January, 1930, Dr. W. J. Salisbury testified on behalf of the emuloyee. With reference to the condition of claimant's right hand he stated that he had examined it and found no functions that Goebel could accomplish with his right hand; that there was no gripping nor any lifting power in the right hand; nor could the claimant by use of his right hand in conjunction with his left hand, lift ordinary weights.\\n\\\"Permanent total disability is that condition which is deemed to incapacitate the employee from all work for all time, either actually or by direct statutory provision.\\n\\\"An employee may be said to be totally incapacitated when he is disqualified from pursuing the usual tasks of a workman in such a way as to enable him to procure and retain employment. The fact that he is not absolutely disabled for the performance of any kind of labor is not a prerequisite to a finding of total incapacity. The fact that the employee has an income from a business at which he performs no labor is immaterial. It may consist of an inability to secure employment because of the injury, although the employee would be able to do work if he could secure it.\\\" [2 Schneider on Workmen's Compensation (2 Ed.), sec. 418.\\nThe physical condition of claimant's hands, as well as the testimony of himself and that of the doctors with reference thereto indicate that it would be' extremely difficult, if not impossible, for him to find employment in any gainful occupation, or to perform successfully the duties of such occupation if he could secure it.\\nViewing the testimony in the light most favorable to claimant and allowing all reasonable inferences therefrom, there is sufficient competent evidence to support a finding that for all practical purposes the normal and natural functions of both hands and the use thereof have been lost, and that claimant is entitled to compensation therefor as for total permanent incapacity.\\nBut even so, appellants urge here that the commission erred in holding that by reason of this resulting condition, which was admittedly the result of two separate accidents, for the latter of which only, the employer in the instant case was resuonsible, claimant, under s\\u00e9etion 3317, Revised Statutes of Missouri 1929, was entitled to compensation for two-thirds of' that allowed for permanent total disability in other cases. Appellants argue that the commission should have awarded claimant compensation only for the loss of the use of claimant's left hand, and that since they are responsible for loss of the use of plaintiff's left hand only, which is a permanent partial disability, under section 3317 there should \\\"be deducted from the resulting condition the previous disability as it exists at the time of the last injury.\\\"\\nIn support of this contention we are cited a number of cases in other jurisdictions. Our examination of the statutes of those states discloses' that in none of them is there a section of the statute reading as does our section 3317. In each of the states from which cases have been cited, we find statutes under the provisions of which the result contended for here by appellants, in circumstances such as appear in the instant case, is specifically provided for. Section 3317 of our statutes is so different from sections in Workmen's Compensation Acts of other states, pertaining to compensation for permanent disability where there has been a previous disability, that cases from such jurisdictions interpreting the said sections are of little or no value in determining the meaning of our own statute.\\nSection 3317 specifically provides that where there has been a previous disability and the condition resulting from the last injury is a permanent partial disability, there shall be deducted, from the resulting condition, the previous disability as it exists at the time of the last injury, and the compensation shall be paid for the difference. But the section then provides further that if the resulting condition be a permanent total disability, the compensation therefor shall be two-thirds of that for permanent total disability in other cases. It must be conceded, therefore, that it was the intention of the Legislature in dealing with cases of permanent disability, where there had been a previous disability, to make separate provision for that class of eases in which the condition resulting from the last injury is a permanent partial disability as against that class of cases in which the resulting condition is a permanent total disability.\\nWe have already held that in the instant case claimant's condition was such that he had lost the use of both hands, a condition of permanent total disability. Now section 3316 specifically provides: the basis for payment for permanent total disability; in all such cases compensation shall be paid on the basis of sixty-six and two-thirds per cent of the average annual earnings during 300 weeks, and thereafter on the basis of twenty-five per cent of the average annual earnings for life, but not less than six dollars nor more than twenty dollars per week, and then provides, by section 3317, that in all cases where there has been a previousi disability in which the resulting condition is a permanent total disability, the compensation therefor shall be two-thirds of that for permanent total disability in other cases.\\nWe are constrained to the view that in the instant case, under section 3317, wherein claimant had lost the use of his right hand by a previous accident and thereafter by an accident while in the employ of his present employer lost the use of his left hand, \\\"the resulting condition,\\\" was \\\"a permanent total disability.\\\" Therefore since the case is one of that class of cases wherein there has been a previous disability, the compensation therefor, under section 3317, shall be two-thirds of that for permanent total disability, which is provided for in other cases under section 3316. Since this is the manner in which the commission interpreted the section and made its award in accordance therewith, the judgment of the circuit court affirming the award of the Missouri Workmen's Compensation Commission is hereby affirmed.\\nSaid, P. J., and Nipper, J., concur.\"}"
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+"{\"id\": \"8729500\", \"name\": \"ALVA D. DONNER, Respondent, v. JAMES H. WHITECOTTON, Appellant\", \"name_abbreviation\": \"Donner v. Whitecotton\", \"decision_date\": \"1919-05-05\", \"docket_number\": \"\", \"first_page\": \"443\", \"last_page\": \"456\", \"citations\": \"201 Mo. App. 443\", \"volume\": \"201\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Kansas Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T21:01:20.859006+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"ALVA D. DONNER, Respondent, v. JAMES H. WHITECOTTON, Appellant.\", \"head_matter\": \"ALVA D. DONNER, Respondent, v. JAMES H. WHITECOTTON, Appellant.\\nKansas City Court of Appeals,\\nMay 5, 1919.\\n1. DEEDS: Breach of Covenant: Undisclosed Principal. As a result of Section 2773, R. S. 1909, abolishing the use of seals, an undisclosed principal may he held liable for a breach of warranty made by the agent in a deed executed in the latter\\u2019s own name.\\n2. -: -: Measure of Damages. In such a case the suit to recover is based not strictly on the covenant but on the facts of the case and the measure of damages is the extent to which the undisclosed principal is enriched at the expense of the purchaser who bought from him through his agent.\\n3. PLEADINGS: Damages. In an action for loss sustained by breach of covenant of warranty against an .undisclosed principal the petition should state the amount plaintiff paid for the land, the value thereof and the value of the land lost compared with the rest, as that is the measure of plaintiff\\u2019s damages.\\nAppeal from Eandolpb Circuit Court. \\u2014 Hon. A. H. Walker, Judge.\\nBeVEESED AND REMANDED.\\nRalph T. Finley for respondent.\\nWhitecotton & Wight for appellant.\", \"word_count\": \"4923\", \"char_count\": \"27936\", \"text\": \"TRIMBLE, J.\\n\\u2014 In this action plaintiff Donner seeks to hold the defendant, James H. Whitecotton, liable for the breach of a covenant of warranty contained in a deed to plaintiff from defendant's son, A. Tilden Whitecotton, bnt which the defendant did not sign, nor did his name appear therein in any manner The theory is that the defendant can be held liable as an undisclosed principal, even though the warranting obligation is in a deed, because our statute has abolished seals and thereby destroyed all distinctions between sealed and unsealed instruments.\\nThe defendant, acting as attorney for a Mrs. Clara D. Winn, bid in for her at partition sale a certain Boone county farm supposed to contain 230 acres at the sum of $4600, and the sheriff executed a deed to her which was placed of record. Mrs. Winn was dissatisfied, claiming that defendant paid more than she had authorized him to bid for it. As a result of her dissatisfaction, it was agreed that she should convey the land to defendant's son, A. Tilden Whitecotton, who would give her a deed of trust thereon for $3500, she to receive in addition thereto the sum of $1100 which, with the deed of trust, would make up to her the $4600 she had been required to pay for the land. She executed a warranty deed to A. Tilden Whitecotton, he gave her a deed of trust thereon for $3500 and his father, the defendant, furnished the $1100 which was paid to Mrs. Winn.\\nThereafter a trade was made whereby the plaintiff, Donner, exchanged property in Columbia for the farm, each property being valued, for the purposes of the trade, at $7000. There was an incumbrance of $3500 on each piece of property, and the arrangement was that each party should assume and agree to pay the incumbrance on the property he was to get. In other words, they exchanged debts also. This arrangement was carried oat and pursuant thereto A. Tilden White-cotton executed a warranty deed to the plaintiff herein conveying the farm aforesaid, the latter assuming- and agreeing to pay the $3500 deed of trust to Mrs. Winn with interest from January 1, 1912. Afterwards, Donner conveyed the land by deed with the usual covenants of warranty to one, Evans, who in turn likewise conveyed to one Busk. Thereafter it was discovered that the title to, and the possession of, ten acres of the land were, and for forty years had been, in other parties, and consequently there was a breach of the covenant of warranty in each of the deeds above mentioned. Busk thereupon sued, Evans upon the latter s warranty. Evans notified Donner, and the latter notified the Whitecottons, to defend. Busk recovered judgment against Evans for the breach of his covenant to warrant and defend the title, and Evans, after paying same, sued the plaintiff Donner and likewise recovered judgment against him, and total amount which Donner was compelled,to pay to discharge said judgment with interest and costs being $633.04.\\nIt was to recover this amount that the present suit was brought as hereinabove stated.\\nAs originally brought, the suit was against A. Tilden Whitecotton and James H. Whitecotton, but later an amended petition was filed in which James H. White-cotton was the sole defendant. The amended petition alleged that plaintiff bought the real estate in question \\\"which was then owned by said defendant, although the record title of said real estate was in one A. Tilden Whitecotton;\\\" that said A. Tilden Whitecotton executed, to plaintiff the deed to 230 acres of land (describing it) with the covenant to warrant and defend the title; that there was a breach of the covenant owing to the failure of title to ten acres of the land whereby said ten acres was. lost to plaintiff.\\nThe amended petition further alleged that \\\"said A. Tilden Whitecotton was never the beneficial owner of the land described in said deed,, but all of said land, except the part west of said creek, which was lost to plaintiff, was in truth and in fact the property of the defendant James H. Whiteeotton; that said James H. Whiteeotton is the father of said A. Tilden White-cotton and the title of said land was placed by the defendant in the name of his son for convenience and for other reasons unknown to the plaintiff and said James H. Whiteeotton conducted the business concerning said land in the name of his-said son, where the record title thereto was to be affected, although his said son had no real or beneficial interest therein; that said land was purchased by said James H. Whiteeotton and paid for by him with his own means; and that said James H. Whiteeotton in fact received the purchase price for the land described in said deed when the same was conveyed to the plaintiff by said A. Tilden Whiteeotton; and that by reason of said facts, and as the facts are, the said James H. Whiteeotton transacted the business concerning the record title to said land in the name of his said son as his agent and the said A. Tilden Whiteeotton was, in the execution of said deed, acting for his said father, the defendant herein. The plaintiff further states that since said conveyance to the plaintiff by said A. Tilden White-cotton, the plaintiff has learned for the first time that said A. Tilden Whiteeotton is insolvent and has no property out of which a judgment for the damages and costs here could be made.\\\"\\nSaid petition further set up the conveyance to Evans and from him to Busk and the respective suits heretofore mentioned together with the judgment rendered in each and their payment as before stated.\\nThe answer admitted the execution of the deed from A. Tilden Whiteeotton to the plaintiff Donner but denied every other allegation.\\nThe case was tried and submitted to the court, a jury apparently being tacitly waived by common consent. No request for or waiver of a jury is mentioned in the record nor is any point made thereon; and we mention this merely to show how the case was tried. It is a suit at law tried before the court. Special findings of facts and declarations of law were given, and the court rendered judgment for $613.25, said sum being made up of $456.52, the value, as found by the . court, of the ten acres of land lost and the price paid therefor, and $156.73 interest on said sum from March 1, 1912. The defendant appealed.\\nThere is no question but that there was a failure of title as to the ten acres whereby that amount of land was lost to plaintiff; nor .is there any controversy ' over the various conveyances with covenants of warranty as heretofore stated, or over the various suits thereon and the payment of the respective judgments and costs thereof by the respective covenantors down to the deed involved herein.\\nSome contention is made that the court was not justified in finding that the defendant, James H. White-cotton, was the real owner of the land and the one for whom the conveyance to Donner was made; but we are wholly unwarranted in taking this view since the record discloses ample evidence to support the trial court's finding that .\\\"A. Tilden Whiteeotton was not the beneficial owner of said land or any part of the same but that the defendant, James H. Whiteeotton, was the real and beneficial owner thereof and held the record title to said land . . . in the name of his said son, A. Tilden Whiteeotton for purposes of convenience; that said James H. Whiteeotton paid all of the purchase money for said land when the same was deeded to his son, and received all of the proceeds of the sale, including property and-money, when said land was conveyed to Alva D. Donner; that while holding the record title to said land, the said A. Tilden White-cotton held the same for his said father James H. Whiteeotton and acted as the agent of his said father in selling and conveying the same to the plaintiff as aforesaid; and that said James H. Whiteeotton was the undisclosed principal of said A. Tilden White-cotton at the time said land was conveyed to the plaintiff.\\\" The court further found that \\\"the plaintiff, Alva D. Donner, discovered that the said James IT. Whitecotton was the real and beneficial owner of said land after the plaintiff had sold said land and conveyed the same to one I. V. Evans and said Evans had conveyed the same to one William H. Rusk.\\\" It was in evidence that at the time of the conveyance of the farm to A. Tilden Whitecotton he was a young man attending the State University; that he had no property; that the title was put in the son's name for convenience; that defendant James H. Whitecotton always spoke of the farm as \\\"my\\\" farm and when certain buildings thereon burned, he collected and kept the insurance.\\nThe main question in the case is whether the defendant, James H. Whitecotton, can be held liable for the loss occurring by reason of the breach of a covenant of warranty in a deed he did not sign, on the ground that he was the undisclosed principal of the grantor, A. Tilden Whitecotton, who, in executing the deed, was acting for the defendant and with his authority.\\nWith reference to simple contracts, even such as the Statute of Frauds requires to be in writing, the general rule is that an undisclosed principal may be charged with liability on obligations made by the agent in his own name but for his principal's benefit and by his authority. [Weber v. Collins, 139 Mo. 501, 508; Meyers v. Kilgen, 177 Mo. App. 724, 735; 2 Corp. Juris., 841; 21 R. C. L. 890.] To this general rule there are certain exceptions, one of which is in the case of negotiable instruments. [21 R. C. L. 891.] The reason of such exception doubtless being that one who takes a negotiable instrument contracts only with the parties who upon the- face of the instrument are bound for its payment, and is presumed to look only to those parties and not elsewhere. [1 Am. & Eng. Ency. of Law (2 Ed.), 1141.]\\nNotwithstanding the above general rule with reference to simple contracts, - it is the well-established con-mon-law doctrine that an action can be maintained upon a sealed contract only against those whose names appear therein; and hence the general rule is that an undisclosed principal cannot be held liable upon a contract under, seal executed by an agent in his own name. [2 Corp. Juris. 843; 21 R. C. L. 892.] From this it necessarily followed that conveyances of real estate, being sealed instruments, came within the rule; and an undisclosed principal could not be liable for the breach of a covenant of warranty contained in a deed executed by an agent in his own name.\\nHowever, section 2773, Revised Statutes 1909, provides that \\\"The use of private seals in written contracts, conveyances of real estate, and all other instruments of writing heretofore required by law to be sealed (except the seals of corporations), is hereby abolished, but the addition of a private seal to any such instrument shall not in any manner affect its force, validity or character, or in any way change the construction thereof.\\\" And the question is, what effect does this section have on the rule? Does this section destroy all distinction between sealed and simple contracts so as to allow an undisclosed principal to be held liable for the breach of warranty made by the agent in a deed executed in the latter's own name, or does it merely render a seal unnecessary to the deed's validity, leaving the status of the deed, its construction, effect, and the rights and liabilities of the- parties thereto, the same as before? In matters other than the question of liability herein considered, it has been held that the effect of this statute was to change common-law rules so that a deed or other sealed instrument could be dealt with, and treated in the same manner, as any other unsealed contract. [Bosly v. Bosly, 85 Mo. App. 424, 428; Edmunds v. Missouri Electric, etc., Co., 76 Mo. App. 61, 622; Judd v. Walker, 158 Mo. App. 156, 164.]\\nIn Streeter Jr. Co. v. Jann, 90 Minn. 393, a father sent his son to Dakota to buy land for him, he furnishing the money that was paid down thereon. The son, in his own name, entered into a contract under seal to purchase a large amount of land and to pay the unpaid portion of the purchase price in yearly installments. The son having refused to make these payments, suit was brought against the father on the ground that he was the real vendee, that the contract was actually made for him in his behalf, and that of these facts that plaintiff was not informed until after the writing was executed. The court held that the statute abolishing seals abrogated the distinction between sealed and between sealed and unsealed private contracts and that distinction between simple contracts and specialties, executed by private parties, were discarded, and that, therefore, the father could be held liable as an undisclosed principal.\\nIn Efta v. Swanson, 115 Minn. 373, 132 N. W. 335, the same court held that an undisclosed principal is bound by covenants of warranty in a deed made by his agent with authority. The decision was based upon the aforesaid ground that the statute abolishing seals had abrogated all distinction between sealed and unsealed private contracts, and the rule applicable to simple contracts as to the liability of a principal for authorized contracts in his agent's name applied as well to contract underseal.\\nIn Kirschbon v. Bonzel, 67 Wis. 178, the Supreme Court of Wisconsin held that an undisclosed principal could be held liable for the obligation of his agent in a written contract under seal, if the seal was not essential to its validity.\\nIn Stowell v. Eldred, 39 Wis. 614, 626, it is held that an undisclosed principal could enforce the obligation of a contract made by his agent in the latter's name, even though the contract was under seal, provided the seal was not essential to the validity of the contract.\\nIn Sanger v. Warren, 91 Tex. 472, the plaintiff, Mrs. Warren, had conveyed lands to Bowser et al., who, after giving notes to secure the unpaid purchase money, sold the land to one, Bees, who assumed and agreed to pay said notes. In purchasing said land and taking the deed to himself, Bees was in fact acting as the agent of Sanger and others, and, when he subse quently conveyed tlie land, Sanger and his associates received the proceeds. Mrs. Warren sned to recover the amount due on certain of the notes and also to enforce her vendor's lien; and, in addition to a foreclosure, judgment was rendered not only against Sanger and his associates for the balance due on her debt hut a judgment was also rendered against them in fayor of Bowser et al. for any moneys they might he compelled to pay on the judgment. The cause was submitted solely upon the second count which sought to hold Sanger and his associates on the graund that they were the undisclosed principals of Rees; and the trial court charged the jury, in effect, that though on the face of the deed the land was conveyed to Rees and he assumed to pay the notes, still' if he, in making the. purchase, was in fact the agent of Sanger et al. they were liable thereon as undisclosed principals. The Supreme Court of Texas, however, refused to hold Sanger liable as an undisclosed principal, and ruled that the Texas statute dispensing with the necessity of private seals did not change the common-law rule as to the liability of an undisclosed principal for the obligation contained in a deed executed by the agent in his own name. The reasoning of the court was that the statute merely rendered it unnecessary to place a seal on a deed, hut that, by the very language thereof, the statute did not undertake to give a deed executed without a seal any different status from what it would have had before the statute was passed if executed with a seal; that the common-law rules must still be resorted to in order \\\"to determine the nature and extent of the estate conveyed by the deed as well as of the covenants therein .contained, and who were bound or benefitted thereby. It was not the intention of the statute to abolish them.\\\"\\nAccording to this, the rule that an undisclosed principal, when subsequently discovered, may be held liable upon a contract, made with his agent, does not apply to a deed or conveyance of real estate whether the instrument is required to be sealed or not.\\nThe case of Jones v. Morris, 61 Ala. 518, cited in the foregoing Texas case, dealt with the sufficiency of a deed executed by Jones' agents to pass the legal title and to estop Jones from recovering the land. And the court held that the statute abolishing seals did not change the common-law rule that a deed executed by an agent, to be valid and binding upon the principal, must with certainty appear to be the deed of the principal, the grant and the warranty must be his. The court further said that while a seal was not now necessary to a conveyance, yet a deed, though shorn of the dignity of a seal, retained all the operation and effect of a deed sealed at common law, its covenants being as comprehensive, and its recitals as incapable of being disputed as if it were sealed with the greatest formality and that the estoppel which at common law grew out of the covenants or recitals of a sealed instrument attach now to an unsealed conveyance of the legal estate in lands. This case, it will be noticed, involves something other and more than the mere question of the liability of a principal for an obligation contained in a deed executed by his agent in the latter's own name. The question there went to the sufficiency of the instrument to pass title, and it was held that while there was \\\"a larger legislative intention\\\" in the statute than merely to dispense with a seal as a necessary element of a conveyance of the legal estate in lands, yet the statute did not aid the deed's insufficiency in other respects, and was not intended to be so broad in its scope as to blot out the common-law principles which give security to conveyances of real estates. We have no quarrel with the proposition that the statute should not be allowed to lessen or remove any of the safeguards or security thrown about titles to real estate; but the question is does the holding of an undisclosed principal liable for the obligation in a deed made in the principal's behalf but by the agent in his own name, in any way lessen the security of land titles? It is hard to see how such a result would follow. And it would seem that tlie result reached in the Texas case could have been justified upon the ground that as the plaintiff's claim therein had its origin and foundation in negotiable instruments, her right to hold the undisclosed principal of the agent who assumed the payment thereof, could not rise higher than the source of her claim. For had the maker of the notes been acting for another, Mrs. Warren could not have held Sanger as the undisclosed principal of such maker, since, as heretofore .stated, negotiable instruments constitute an exception to the general rule as to the liability of an undisclosed principal.\\nThe Swanson case, above cited, is the only case which we have been able to find directly holding that an Undisclosed principal is bound by the covenants' of warranty in a deed made by his agent with authority. And with reference to- the liabilities arising under a conveyance of real estate, it is perhaps difficult to see why an undisclosed principal should not be held where' the statute has abolished seals. While there were other differences, than the mere presence of a seal, between specialties and simple contracts, as to the effect to be given the instruments themselves, the difference as to the liabilities arising from the obligations thereof arose largely out of the rigid technical common-law rules pertaining to the use and effect of a seal. The presence of th\\u00bf seal seems to have been the distinguishing feature. [Bishop on Contracts, secs. 110, 163 ; Story on Contracts, secs. 1 to 10.] And when the seal is removed by statute, it is difficult to find any reason why the distinction between simple contracts and specialties is not also removed, in so far at least as the liability herein considered is concerned. . But, however, this may be, it would seem to be clear that, even if such distinction is wholly abolished, a suit for breach of warranty in a deed cannot be maintained against an undisclosed principal based solely on the covenant of warranty and nothing else, since the principal does not appear on the face of the covenant as a party to it. The suit is not strictly on the covenant for the breach thereof hat apon the facts of the entire transaction inclading the fact of the covenant, its breach and the loss occasioned thereby. The Swanson case does not disclose the manner in which the salt was broaght, nor the basis apon which it rested, bat the implication is that it was broaght on the facts of the transaction, especially as the measare of damages was held to be the consideration paid by the plaintiff for the land lost with interest thereon from the time of payment. The right of recovery in sach case woald, therefore, seem to be, not strictly and solely on the breach of the covenant of warranty as sach, bat on the theory that the andisclosed principal having obtained, throngh his agent, money to which he was not entitled and for which he gave nothing, shoald be reqaired to repay same. In Moore v. Granby, etc., Co., 80 Mo. 86, decided before the enactment of oar statate abolishing seals, it was ruled that an andisclosed principal was liable apon the implied obligation growing oat of the facts even though the instrument which the agent executed was a contract under seal and in relation to the conveyance of real estate, bat that sach liability could not be enforced in a suit based solely on the contract itself. In like manner, it woald seem that even though oar statate has now abolished seals and has destroyed the distinction between sealed and unsealed instruments, nevertheless, the suit to recover, from an andisclosed principal, loss arising on account of a breach of warranty in a cleed, shoald be based upon the facts of the ease and not strictly on the covenant itself. In sach case the ground of recovery is really on the theory that the andisclosed principal has received something for which he gave nothing in return, 'and is under an implied obligation to repay the same. If this be the theory on which recovery is allowed, then the measare of damages mast be the extent to which the andisclosed principal was enriched at the expense of the purchaser who bought from him through his agent. This, is exactly the measare of damages adopted in the Swanson case and is the measare of damages which the trial court adopted in the case at bar. In other words, the undisclosed principal, in the case, of failure of title in a warranty deed,' is held liable, not on the theory that he is strictly a party to the covenant, but on the theory that he who has obtained the benefits of a transaction should restore to the purchaser that which he received in exchange for something he never sold nor had the right .to sell. In this way the effect of the statute abolishing seals is not extended beyond the manifest purpose of the legislative authorities, nor, on the other hand, will one be permitted to unjustly enrich himself at the expense of another through having a conveyance executed by his agent in the latter's name.\\nThe fact that the suit is not based strictly and solely on the covenant in the deed itself is impliedly recognized in the petition filed by plaintiff since it attempts to set out the facts of the entire transaction as a basis of his cause of action. But the trouble is, the petition does not set out all of the facts so as to enable the court to render a judgment according to the measure of damages hereinabove referred to. It does set out the facts of the deed and its covenant together with the facts showing the defendant to be an undisclosed principal. But 'it nowhere alleges what the plaintiff paid for the land, nor the value thereof, nor the value per acre of the land lost compared with the rest of the land. All it alleges in reference to plaintiff's loss is the fact that a certain judgment for $633.04 was rendered against him in a suit on the breach of his covenant with Rusk to warrant and defend the title. This of course included costs and expenses of attorneys in defending the title in addition to the value of the land lost, which was properly included therein, since the covenant to. defend was one to which he was personally and strictly a party. ' But the trial court did not allow the expense of defending the title as a part of the recovery herein, but limited the plaintiff's recovery to the value of the land lost. This was done though no allegation in reference thereto was contained in the petition. There was nothing in the petition on which the court could proceed to ascertain the value of the land lost and the amount by which the defendant was unjustly enriched at the expense of the plaintiff. In other words, the petition afforded no foundation for the ascertainment of the damages according to the measure the court applied. The court, in its declaration of law found that \\\"the measure of plaintiff's damages would be the purchase price paid for the land lost, with interest from the time of delivery of deed and possession, but as no price was fixed for the-particular land lost, the court further finds that the measure of plaintiff's damages in such case should be such proportion of the whole consideration paid as the value of the ten acres lost bears to the value of the whole.\\\" We think it was necessary for the petition to have contained the proper allegations as a foundation for the application of this- measure.\\nThere was no error against the defendant in finding the value of the ten acres lost to be of the average value of all the land, since there was evidence that the ten acres was bottom land and worth more, per acre than the rest.\\nIn arriving at the average price or value per acre the court added the $3500 deed of trust, which the plaintiff paid off, to the $7000, the agreed valuation placed on the properties exchanged, making the consideration paid for the farm $10,500, and thus arrived at the price of $45,652 per acre. But since there was a deed of trust for $3500 on plaintiff's property which he traded for the farm and which deed of trust he was relieved of paying as it was assumed by the other party to the trade, the $3500 incumbrance on the farm, which plaintiff paid off should not have been added to the $7000<, but this last-named amount should be taken as the basis on which to figure the value or price per acre of the land. The judgment rendered is excessive by reason of the above-mentioned addition of the $3500 to the $7000 at which the properties were each valued.\\nThe judgment is reversed and the cause remanded.\\nAll concur.\"}"
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+"{\"id\": \"8732384\", \"name\": \"MYRON E. ROSS, Respondent, v. GRAND PANTS COMPANY, Appellant\", \"name_abbreviation\": \"Ross v. Grand Pants Co.\", \"decision_date\": \"1913-04-07\", \"docket_number\": \"\", \"first_page\": \"291\", \"last_page\": \"298\", \"citations\": \"170 Mo. App. 291\", \"volume\": \"170\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Kansas City Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T19:09:41.415108+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"MYRON E. ROSS, Respondent, v. GRAND PANTS COMPANY, Appellant.\", \"head_matter\": \"MYRON E. ROSS, Respondent, v. GRAND PANTS COMPANY, Appellant.\\nKansas City Court of Appeals,\\nApril 7, 1913.\\n1. MASTER AND SERVANT: Damages: Wrongful Discharge: Jury Question. Where a servant sues for damages for a wrongful discharge, and the master defends on the ground that the discharge was justified because of the .servant\\u2019s alleged rudeness, discourtesy and impoliteness to the master and to customers, all of which the servant denies, the question whether the discharge was wrongful or not is one for the jury.\\n2. -: -: -: -: Servant's Behavior. Although wilful rudeness, discourtesy and impoliteness to customers on the part of a servant is a good ground for the discharge of such servant by the master, yet, if the conduct of the servant was authorized by the master and countenanced by him at the time, the latter cannot afterwards rely on such authorized conduct as a ground for discharge.\\nS. -: -: -: -. Although such behavior-on the part of a servant toward a master is good ground for discharge, yet if the alleged misbehavior was provoked by the master, and the conduct of the master afforded reasonable cause for the alleged conduct of the servant, then the latter\\u2019s conduct toward the master, under such circumstances, is not ground for a discharge. Whether there was reasonable cause is a question for the jury.\\n4. -: Evidence: Character. Where the character of a witness has been attacked by proof of a conviction of an offense, the party offering the witness may then prove his general reputation, not for the purpose of disproving the conviction but to support his credibility.\\n5. -: Instruction: Defining Terms. Where an instruction contains a word or a phrase which the other party wants defined, such party should request a definition of that word or phrase. This does not apply to every instruction but it does to such terms as' \\u201creasonable care,\\u201d \\u201creasonable cause,\\u201d and etc., especially when the party complaining of the lack of definition has used the same- terms without defining them or without asking an instruction which defines them.\\nG. -: -: Measure of Damages. In a suit brought by a servant for a wrongful discharge, the measure of damages .is the amount due for the whole contract period less the amount earned from other sources until the time of trial and the prospective earnings of the servant to the end of the contract period.\\nAppeal from Jackson Circuit Court. \\u2014 Hon. Jas. E. Goodrich, Judge.\\nAFFIRMED.\\nG. B. Silverman for appellant.\\nJoseph P. Fontron for respondent.\", \"word_count\": \"2420\", \"char_count\": \"13940\", \"text\": \"TRIMBLE, J. \\u2014\\nThis in an action by an employee to recover damages for a wrongful discharge. Plaintiff was employed by defendant to act as the general manager of its selling department in the tailoring business. The employment was for a year beginning October 7, 1907, and at a salary of forty dollars per week to be paid weekly during the whole of said time. On the 5th day of December, 1907, plaintiff was discharged without his consent. The suit was instituted December 24, 1909, and the trial had July 2, 1908, three months and five days before the expiration of the employment term. All the foregoing facts are admitted. The controversy at the trial was whether or not there was just cause for the discharge. The defendant claimed that the plaintiff was discharged because he was rude, discourteous and insolent to defendant's president, as well as to the other employees of defendant and to customers; because plaintiff disturbed the peace and quiet of said customers; and because he had attempted to disorganize defendant's business and its systematic working, and had tried to induce defendant's employees to quit their positions. Plaintiff denied this, claiming that his discharge was without just cause or excuse.\\nThe issue thus raised was submitted to the jury resulting in a finding for plaintiff with a verdict against defendant for $810, and judgment thereon was duly rendered. Unless reversible error was committed in the trial it is our duty to affirm this judgment, since it is not within onr province to weigh the evidence or to pass on the facts.\\nThe appeal was taken to the Supreme Court on the ground that a constitutional question relating to trial by jury was involved. That tribunal, after considering the case, held that no such question was involved and transferred the case to this court. [145 S. W. 410.]\\nDefendant alleges error because the trial court admitted, over defendant's objection, the testimony of two of plaintiff's witnesses in rebuttal who testified to plaintiff's general reputation for morality and truthfulness.\\nIn civil cases the character of the parties is not relevant, nor is testimony concerning it admissible, unless character is in issue by the nature of the proceeding, or unless it is first brought in issue by an attack thereon from the other side. On cross-examination the plaintiff had been asked if he had not been convicted and fined $100 in the Kansas City Police Court for disturbing the peace. He admitted that he had. In addition to this admission, the defendant, in putting in its testimony, offered in evidence the record of said police court showing such conviction. This opened the door for plaintiff to introduce evidence concerning his general reputation. [2 Wig. on Ev., sec. 1106; Jones on Ev., sec. 867; Walker v. Insurance Company, 62 Mo. App. 209; Gertz v. Railroad, Co., 137 Mass. 77; Paine v. Tilden, 20 Vt. 554; Isler v. Dewey, 71 Cal. 14.] Hence the admission of such testimony was not error.\\nThe next assignment is that the court erred in giving plaintiff's instruction No. 3 which told the jury that if plaintiff was rude, discourteous, and impolite to defendant's president, yet if he had reasonable cause for so being, such behavior toward- the president would not justify plaintiff's discharge! Complaint is made that this rule does not apply in a case of this kind. In other words defendant appears to contend that no matter what the master may have done to provoke' his servant to rnde and discourteous behavior, if the servant gave way to it, he thereby furnished the master good reason for discharging him. Stated differently, and in its last analysis this means, that although the master may goad the servant into desperation, yet if the servant does not meekly submit, he thereby forfeits all right to retain his place under his contract. This would permit a master, who was desirous of breaking a contract with his servant, to so treat the servant as to drive or compel him to give the master the right to discharge him. The instruction is not erroneous on the ground just stated. The next objection to the instruction is that the words \\\"reasonable cause\\\" are not defined. But defendant asked and was given an instruction on the same point which used the words \\\"good cause\\\" without definition, and no instruction defining the words \\\"reasonable cause\\\" was asked by defendant. It has been held that a failure to define \\\"reasonable care and diligence\\\" is not reversible error where no instruction embodying such a definition has been asked. [Johnson v. Missouri Pacific Railway Co., 96 Mo. 340.] Where' an instruction contains a word or a phrase which a party wishes to have defined, such party should request a definition of that word or phrase. [Crapson v. Wallace, 81 Mo. App. 680, l. c. 684.] Another complaint against this instruction is, that it tells the jury that if plaintiff was rude, discourteous and impolite to the president of the company, this justified the defendant company in discharging him for any rudeness, etc., no matter to whom, when the answer alleges and the evidence shows that rudeness to customers and others was also relied on as justification for the discharge. The instruction, however, does not apply to any rudeness other than the rudeness to the president. The plaintiff's evidence tended to show.that if there was any rudeness to customers it was at the command and direction of the president, who was practically the owner of all the stock of the defendant company and its sole active administrative officer present in the store at the time of such alleged rudeness. The instruction does not apply to any rudeness to customers but only to rudeness alleged by defendant to have been displayed to the president.\\nThe final assignment of error is in regard to the measure of damages. The court's instruction on this point was as follows:\\n' \\\"The court instructs the jury that if you find for the plaintiff, you will fix your verdict for the whole amount that would have been due the plaintiff if he had continued to work for the defendant under the contract sued upon, from the date of his discharge until the expiration of the contract after allowing a credit for anything which the evidence shows the defendant may have paid him since that time and for anything which plaintiff may have earned from services rendered to others, and after allowing a further credit of an amount equal to what the jury may believe from the evidence he will be able to earn between now and the date of the expiration of said contract. ' '\\nAppellant's contention is that when the trial takes place before the expiration of the stipulated term of employment the servant ought to be allowed to recover damages only to the time of trial, subject to the reduction of 'the sums the servant has earned or might have earned between the time of the discharge and the time of trial; but that in this case the jury were instructed to give damages for the entire period up to the expiration of the contract, which expiration was after the trial.\\nTwo Federal cases and a case in Wisconsin are cited in support of this view: Schroeder v. Cal. Co., 95 Fed. 296; Darst v. Mathieson Works, 81 Fed. 284; and Gordon v. Brewster, 7 Wis. 309. A careful analysis of these cases will disclose that the reason those courts laid down the rule contended for by appellant was because, owing to the length of time the contracts had to run and the lack of evidence as to what plaintiff's loss would be during the portion of the unexpired term after the trial, the damages for such portion would be largely speculative. In the case we are considering, however, the unexpired term was only three months, and the evidence was amply sufficient to enable the jury to determine what the probable loss for the remaining three months of the term would be. It is true that Wood on Master and Servant at page 250 says, that the drift of American decisions is to the effect that, in a suit brought before the expiration of the term, the judgment is limited to the servant's actual loss up to the day of trial, and that in a case, where there was a prospect of a considerable loss of time, a suit brought before the .expiration of the term would be an unsafe experiment; yet he also says on page 237 that a servant may sue for a breach of the contract and recover his probable damages from the breach, or, he may, in some cases, wait until the term has ended and sue for the actual damages he has sustained. It would seem that if he can sue for his probable damages, the only thing to prevent his recovery for loss sustained after the trial and to the end of the contract term would be the inability to ascertain with any certainty what the damages would be for that portion of the term elapsing after the trial. ' But whatever may be the rule in other jurisdictions, the rule in Missouri is the same as that followed in England. This allows a servant, even in a suit brought and tried before the expiration of the contract, to recover for the whole contract period, less the amount earned from other sources until the time of trial and the prospective earnings to tbe end of the contract period. [Boland v. Glendale Quarry Co., 127 Mo. 520, and cases therein cited.] It is true in the Boland case the trial is stated on page 522 to have taken place January 9, 1894, which, if correct, would be after the expiration of the contract term which ended on March 31, 1895. But inasmuch as the instruction set out on page 523 speaks of the time between \\\"now and the 31st day of March, 1893,\\\" and inasmuch as the whole opinion is based on the fact that the trial did take place before the end of the term, we are constrained to believe that the year \\\"1894\\\" was a mere clerical error and should have been \\\"1893.\\\" This would appear also to be the case because the suit was instituted September 10, 1892, and was determined in the Supreme Court in 1894, so that it must have been tried in 1893. And on page 523 the opinion says the instruction was assailed because it permitted plaintiff to recover for the whole contract period less his earnings up to the day of trial and his prospective earnings to the end of the contract. In Miller v. Boot and Shoe Company, 26 Mo. App. 57, one of the many cases cited with approval by the Supreme Court in the Boland case, the trial was had before the end of the term and the rule as contended for by respondent was followed. Other Missouri cases announce the same measure of damages : Estes v. Desmoyers Shoe Co., 155 Mo. 577; Lambert v. Hartshorne, 65 Mo. 549. And while the date of trial is not clear-ly shown, yet if it was intended to make the rule announced apply only in those cases in which the trial was had after the expiration of the contract, this distinction wonld have been made to clearly appear. It must be held, therefore, that the measure of damages contained in the instruction given for plaintiff in this case is correct according to the rule announced by the Missouri courts. But if no ruling on the question had been made, we see no reason for limiting the damages to the day of trial in a case where the evidence is amply sufficient to enable the jury to say what the loss will be for the portion of term elapsing after the trial.\\nThe .case having been tried without reversible error the finding of the jury and the judgment of the trial court based thereon must not be disturbed. Hence judgment affirmed.\\nAll concur.\"}"
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+"{\"id\": \"8733316\", \"name\": \"Gertrude Derschow v. St. Louis Public Service Company, a Corporation, Appellant\", \"name_abbreviation\": \"Derschow v. St. Louis Public Service Co.\", \"decision_date\": \"1936-06-30\", \"docket_number\": \"\", \"first_page\": \"63\", \"last_page\": \"68\", \"citations\": \"339 Mo. 63\", \"volume\": \"339\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:05:11.075185+00:00\", \"provenance\": \"CAP\", \"judges\": \"Cooley and Westimes, CC., concur.\", \"parties\": \"Gertrude Derschow v. St. Louis Public Service Company, a Corporation, Appellant.\", \"head_matter\": \"Gertrude Derschow v. St. Louis Public Service Company, a Corporation, Appellant.\\n95 S. W. (2d) 1173.\\nDivision Two,\\nJune 30, 1936.\\nT. E. Francis, E. G: Carpenter and Wm. H. Alien for appellant.\\nCharles M. By cm and Bobert L. Aronson for respondent.\", \"word_count\": \"1788\", \"char_count\": \"10687\", \"text\": \"BOHLING, C.\\nAppellant, St. Louis Public Service Company, a corporation, appeals from a judgment awarding respondent, Gertrude Derschow,' $10,000 damages for injuries sustained in a fall while alighting from one of appellant's street cars and occasioned by certain alleged negligent acts of \\\" appellant's employees.\\nAdmitting plaintiff made a submissible case, appellant asserts error in that respondent's instruction on the measure of damages provided, if the jury found for respondent: \\\"then, in estimating her damages you will take into consideration the physical injury sustained, whether temporary or permanent, if any, . . .''on the ground there was no substantial evidence upon which to base an award for permanent injuries.\\nRespondent's evidence established that she sustained her injuries on October 2, 1930; that prior thereto her health had been good; that practically constantly since the accident she had been and was, at the time of trial, suffering pain, and had done no hard work since the accident; and that she was thirty-three years of age at the time of trial (June, 1933). Dr. Harmon, her physician, testified that the visible injuries suffered by respondent consisted of skin abrasions on her arms, and shoulders, and slight skin abrasions on the knees; that respondent complained of pain in her abdomen; that respondent's abdomen was distended; that she complained of bleeding and vomiting and did bleed and vomit, and, while he would not term it a hemorrhage, there was a constant oozing of blood from the vagina ;\\u2022 \\\"that he treated respondent once or twice at her home and thereafter at his office and on February 18, 1931, operated on respondent to find out what was causing the bleeding; that he found \\\"the stomach condition minor \\u2014 didn't amount-to anything;\\\" that both ovaries were prolapsed in the cul-de-sac; that he shortened the ligaments of plaintiff's uterus; that he removed her appendix (\\\"Q. Removing the appendix had nothing to do with these other injuries, did it? A. No, sir\\\"); and that respondent was in the hospital about eighteen days. Dr. Harmon testified that the distended condition of respondent's abdomen, the emission of blood from respondent's vagina and the prolapsed condition of respondent's ovaries might or could have resulted from respondent's fall. The only express testimony in the record bearing on the permanency of any of the foregoing pathological conditions was adduced immediately following testimony by Dr. Harmon concerning an examination made of respondent two or three weeks prior to the trial in which he states respondent \\\"still complains -of that bleeding following the distressed condition of her stomach and periodical bleeding, but not as profuse as what she had had.\\\" It reads:\\n'1Q. Now this condition you described her as suffering from, doctor, in your opinion is it a permanent condition? A. It very often takes, time for a condition of that kind to clear up.\\n\\\"Q. I mean in your opinion is it permanent? A. It is permanent -up to this time. I don't know how long it will last..\\n. \\\" Q-. Well, I mean have you an opinion\\u2014\\nc'Mr. Dearing: The doctor bas expressed an opinion, if your Honor please. This is cross-examination of Ms own witness. The doctor has answered the question.\\n\\\"Mr. Kane: I don't care to be shown up that way.\\n\\\"The Court: He has answered he can't state. '\\n\\\"M\\u00e9. KanE (Q) : Did you say whether or not, in your opinion\\u2014 have you got an opinion on this? A. Well, I wouldn't say positive the time it would take for a condition of that kind to clear up, because it is hard telling.\\n' ' Q-. Sir ? A. It is hard telling how long a condition of that kind will last.\\n\\\"Q1 Have you an opinion as to whether it is permanent or not?\\n\\\"Mr. Dearing: I object to that as repetition.\\n\\\"The Court: Let him answer the question again. [Exception duly saved.] '\\n\\\"A: Well, it has lasted quite a while and I would almost say it was permanent-.\\n\\\"Mr. DEARING: I ask that be stricken\\\" out; that is speculative\\u2014 almost say. '\\n\\\"The Court: \\u2022 It will b\\u00e9 overruled. He is an expert. [Exception duly saved.]\\\" '\\nThe quoted portion of respondent's instruction on the measure of damages permitted the jury to find that respondent had sustained permanent injuries\\\" and to take such permanent injuries into consideration in 'awarding damages. The jury returned a verdict for $15,000 \\\"and respondent- entered a remittitur of $5,000 as a condition to the overruling of appellant's motion-\\\"for new trial. The only direct testimony adduced to sustain any award for permanent injuries was the statement of Dr. Harmon, speaking of respondent's complaint that- the bleeding continued: \\\" . . . I would almost say it was p\\u00e9rman\\u00e9nt. \\\" This is not a statement that the condition is permanent or a statement of an opinion to that effect. His previous testimony to the effect he did not know how long it would last; that it was hard telling how long it would continue, and that he would not say positive the time it would take to clear up, indicates that, from his knowledge of respondent's'condition and her complaint to him, he was in dofibt as to the future duration of the condition; and the effect of his testimony as a whole is that the permanency of said condition throughout life remained within the realm of conjecture and speculation. Plank v. R. J. Brown Petroleum Co., 332 Mo. 1150, 1164, 61 S. W. (2d) 328, 334, quoted and followed in Weiner v. St. Louis Public Service Co. (Mo. en banc), 87 S. W. (2d) 191, 192(1), states:\\n\\\" 'To justify a recovery for apprehended future consequences, there must be such a degree of probability of their occurring as amounts to a reasonable certainty that they' will result from the original injury. To say of \\u00e1 thing it is permanent means that it will continue regardless of a contingency Or fortuitous' circumstances. ' [Lebrecht v. United Rys. Co. of St. Louis (Mo.), 237 S. W. 112.] Proof of a condition which may Cause future trouble is not necessarily proof of a permanent injury, the former may persist after the trial but not continue to exist permanently while the latter is a physical or mental impairment or disability which will last throughout' life, and there is a 'distinction between' damages which may reasonably result in the future and damages allowable as for a permanent injury. [Bante v. Wells (Mo. App.), 34 S. W. (2d) 980; Stahlberg v. Brandes (Mo. App.), 299 S. W. 836; Colby v. Thompson (Mo. App.), 207 S. W. 73.] To recover damages for permanent injury the permanency of the injury must be shown with reasonable certainty and while absolute certainty is not required mere 'conjecture or likelihood, or even a probability, of'^uch injury will not sustain the allowance of damages therefor.\\\" ' ' ' ' \\\"\\nRespondent contends Nance v. Lansdell (Mo. App.), 73 S. W. (2d) 346, holds testimony, of a physician that it is difficult to state whether the injury would be \\\"permanent or not for life; it is a permanent impairment \\u00e1t the present time\\\" (l. C. 350[10]) is sufficient to submit the issue of permanency to the jury. A reading of that case shows counsel are mistaken as to the effect' of the ruling. The admissibility of the testimony was the issue under discussion. The plaintiff's case was submitted on one instruction only (l. c. 349); and nowhere in the report of that case do we find a discussion'of the sufficiency of the evidence to sustain or any instruction authorizing an award for permanent injuries.\\nRespondent, in her brief, states \\\"the operative scar and the shortening of the ligaments around the ovaries are permanent and life-long consequences of appellant's negligence.\\\" A reading of'respondent's petition and the evidence clearly indicates respondent was proceeding at the close of the evidence upon the theory that an award for permanent injuries was warranted under the testimony of Dr. Harmon with reference to- the \\\"oozing\\\" of blood from the vagina and not on the theory of any permanency of said scar and shortening of said ligaments. The petition alleges the permanency of the \\\"injuries\\\" (not the effects of the operation), only, and the record is silent upon the duration of the operative scar and as to whether or not the shortening of the ligaments impaired to any degree their functions. The only skin abrasions shown to have been sustained by respondent, a female, were on the arms, shoulders and knees. No abrasions, bruises or discolorations on or about respondent's abdomen are disclosed by the testimony. The operation was performed more than four' months subsequent to the accident. Dr. Harmon testified he operated to ascertain the cause of the bleeding; that the condition of the stomaeb did not amount to anything; that the operation disclosed the ovaries in a prolapsed condition, and be shortened tbe ligaments of respondent's uterus; and. that, although not occasioned by respondent's fall, the appendix was removed. While, in the instant case, the bleeding immediately following tbe fall justifies an inference by a layman that it resulted from tbe fall [Meyers v. Wells (Mo.), 273 S. W. 110, 116(6); Edmondson v. Hotel Statler Co., 306 Mo. 216, 236 (V), 267 S. W. 612, 617(10)], tbe record fails to disclose that the physician was aware of tbe prolapsed condition of tbe ovaries or any condition of tbe appendix justifying its removal until tbe operation. Under these attending circumstances, any inference by a layman that tbe prolapsed condition of tbe ovaries resulted from tbe fall would be but mere guess, conjecture or speculation, and the expert's testimony that said pathological condition could or might have resulted from tbe fall does not meet tbe burden resting on respondent to establish tbe necessary causal connection. [Kimmie v. Terminal Railroad Assn., 334 Mo. 596, 603(2), 66 S. W. (2d) 561, 564 et seq., and cases cited; Cox v. Missouri-K.-T. Railroad Co., 335 Mo. 1226, 1235(2), 76 S. W. (2d) 411, 415(4); Scanlon v. Kansas City, 336 Mo. 1058, 1064(1), 1066(3), 81 S. W. (2d) 939, 940(1, 2), 941(6).] Tbe record, therefore, fails to establish tbe essential causal connection between tbe shortening of said ligaments and any negligence of appellant.\\nOther issues presented by appellant are likely to not occur upon a retrial.\\nConsidering -the case as a whole, tbe judgment is reversed and the cause is remanded.\\nCooley and Westimes, CC., concur.\\nPER CURIAM:\\nTbe foregoing opinion by Bohling, C., is adopted as tbe opinion of tbe court.-\\nAll tbe judges concur.\"}"
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+"{\"id\": \"8734213\", \"name\": \"The State v. Anthony Betterton, Appellant\", \"name_abbreviation\": \"State v. Betterton\", \"decision_date\": \"1927-06-03\", \"docket_number\": \"\", \"first_page\": \"307\", \"last_page\": \"312\", \"citations\": \"317 Mo. 307\", \"volume\": \"317\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:40:21.656911+00:00\", \"provenance\": \"CAP\", \"judges\": \"Higbee and Davis, 0(7., concur.\", \"parties\": \"The State v. Anthony Betterton, Appellant.\", \"head_matter\": \"The State v. Anthony Betterton, Appellant.\\n295 S. W. 545.\\nDivision Two,\\nJune 3, 1927.\\nIrwin & Bushman for appellant.\\nNorth T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.\", \"word_count\": \"1755\", \"char_count\": \"10417\", \"text\": \"HENWOOD, C.\\nThe appellant was tried and convicted in the Circuit Court of Cole County on the charge of escaping from the penitentiary, without breaking such prison, while there confined for a term less than life. The jury assessed his punishment at imprisonment for two years and six months, and from the judgment and sentence based on the verdict he appealed. The charging part of the information reads as follows: \\u2022 \\u2022\\n\\\"Comes now Sam S. Haley, Prosecuting Attorney within and for the County of Cole and State of Missouri, for and on behalf of the State of Missouri, and upon his oath of office, informs the court that one Anthony Betterton, on the 22nd day of July,' 1924, at the County- of Cole, in Jefferson Township and State aforesaid, did unlawfully and feloniously escape from the Missouri State Penitentiary, withotvt breaking such prison, he the said Anthony Betterton, being then and there a person confined in said penitentiary for a term less than life; against the peace and dignity of the State.\\\" (Italics ours.)\\nSection 3162, Revised Statutes 1919, under which the information is drawn, provides that \\u2014 \\\"if any person confined in the penitentiary for any term less than life shall escape therefrom imthowt being guilty of breaking stich prison, he shall, upon conviction, be punished by imprisonment in the penitentiary for a term not exceeding three years, to commence at the expiration of the original term of imprisonment. \\\" (Italics ours.)\\nThere is no dispute as to the facts. Appellant pleaded guilty to a charge of forgery in Jasper County and was sentenced by the circuit court of that county to two years' imprisonment in the penitentiary. On November 7, 1923, he was duty delivered to the warden of the penitentiary at Jefferson City for confinement, but on July 22. 1924, and for sometime prior thereto, he was detained at State Prison Farm No. 3 near Algoa, in Cole County, where he worked as a \\\"milkman\\\" and \\\"slept in one of the bunks.\\\" About nine o'clock in the evening of July 22, 1924, he left the Prison Farm without permission and remained out of custody until October 31, 1924, when he was apprehended in Arkansas and brought back to the penitentiary. At the expiration of his original term of imprisonment, on November 30, 1925, he was turned over to the Sheriff of Cole County, and the case now before us on appeal was started by the Prosecuting Attorney of Cole County.\\nThe grounds for reversal now insisted upon by counsel for appellant in their brief were property presented to the trial court in the motion for new trial, and all of the grounds assigned are directed to the question of variance between the offense charged' and the proof tendered.\\nI. Appellant's contention that there is a fatal variance between the information and the proof must be sustained. In this case we are limited to a consideration of that section of the statute (Sec. 3162) which makes it a felony for \\u00a1'any person confined in penitentiary for any term less than life to escape therefrom without being guilty of breaking such prison.\\\" Manifestly, the facts in this case, above stated, do not fit the charge made by the information and the- statute on which the information is based. Keeping pace with the changing conditions in the supervision of offenders against the law and profiting by experience, our General Assembly has defined in separate and distinct sections of the statutes various kinds of escapes of prisoners from different places of confinement and from the lawful custody of officers of the law, with and without force, both before and after conviction. With such ample protection for society in these separate and distinct provisions of the law there should be no inclination on the part of our courts to extend any particular section of the statute beyond its proper limits, and we find no such inclination in the previous rulings of this court. In the case of State v. Owens, 268 Mo. 481, the well-settled rule of construction in this State is briefly but very clearly stated. And Williams, C., speaking for the court, points out that this rule is quite uniform in other jurisdictions. In that case the information was based on Section 4381, Revised Statutes 1909 (See. 3163, R. S. 1919), which defines the crime committed by any person confined in any county jail upon conviction for any criminal offense, or held in custody going to such jail, who breaks such prison or custody, whereas the evidence showed that the prisoner escaped from the custody of the street commissioner of the county seat in which the county jail was located and in whose custody he had been placed for work on the streets by the circuit court which tried and sentenced him. In discussing the question of variance the court says:\\n\\\"It will be noted that the above section limits the violation to a breaking and escaping from a 'county jail' or from 'custody going to jail,' and the statute in no manner undertakes to prescribe a penalty for escaping from a street commissioner into whose custody he is placed for the purpose of being worked upon the streets, as charged in the present indictment. . . .\\n\\\"It is a well-established rule that criminal statutes must be strictly construed. Very appropriate to the discussion here is the language used by the Kansas Supreme Court in discussing a section (182) of the Kansas Code which appears to be almost an exact duplicate of Section 4381, Revised Statutes 1909. The court said:\\n\\\" 'Section 182 has reference to persons confined in a county jail or held in custody going to such jail. As a rule, penal statutes must be strictly construed, and they cannot be extended beyond the gram matical and natural meaning of their terms, upon the plea of failure of justice. [Remmington v. State, 1 Ore. 281; State v. Lovell, 23 Iowa, 304; Gibson v. State, 38 Ga. 571.]\\n\\\" 'We are not at liberty to interpolate into the statute \\\"city prison\\\" nor can we judicially determine that a \\\"city prison\\\" is a \\\"county jail.\\\" It is therefore our opinion that the matters charged in the information do not constitute any offense within the statute.' [State v. Chapman, 33 Kan. 134.]\\\"\\nSee also State v. Bartley, 304 Mo. 58; State v. Reid, 125 Mo. 43; State v. King, 114 Iowa, 413; Potter v. Commonwealth, 250 S. W. 496; Gibson v. State, 38 Ga. 571.\\nIt is true, as the learned Attorney-General argues, that the controlling officers of our penal and reformatory institutions are authorized to acquire and operate, in the name of the State, suitable lands for farming and other purposes, in the employment and training of convicts, and that when so acquired and operated they become a part and parcel of said institutions. [Sees. 12414 to 12420, R. S.. 1919; Laws 1921, see. 548.] And it might also be said for the humane side of the people of this great commonwealth that, through their chosen representatives in the General Assembly, they have provided that \\u2014 \\\"it shall be the policy of said board [now commissioners of penal institutions], so far as practicable, in the conduct of all penal or reformatory institutions and in the employment of the persons aforesaid in the different industries, to so train such persons that they may on leaving the said institutions be of good health and character and competent to earn an honest livelihood.\\\" [Sec. 12420, R. S. 1919.]\\nBut, from this, it does not follow that the escape of a \\\"trusty\\\" convict from the place of his employment and detention outside of and remote from the penitentiary is an escape from the penitentiary. Moreover, we find, by an examination of the cases cited by the Attorney-General in other states, that the statutes charged to have been violated' are broad enough, by express provision, in each instance, to cover the escape established by the proof. [State v. Smitch (Iowa), 169 N. W. 680; Jenks v. State, 63 Ark. 312.] 'In other words, both the Iowa statute and the Arkansas statute in question provide in one and the same section for escapes of convicts from the penitentiary and from custody while outside of the penitentiary.\\nAppellant's Instruction A, in the nature of a general demurrer, offered at the conclusion of all of the evidence, should have been sus- .tamed. This disposition of the case would have precluded any action on appellant's Instruction B, in the nature of a special demurrer, which, however, correctly declared the law.\\nil. Ordinarily the conclusion reached on the question of variance would render unnecessary the discussion of other matters complained of, but we will consider also the State's Instruction 6, challenged by appellant, in order that the error therein appearing may be avoided in the future. This instruction says:\\n\\\"The court instructs the jury that the words, 'confined in the penitentiary,' as used in these instructions shall be construed to mean every place where any convict shall be kept, detained, confined or employed according to law.''\\nObviously, the trial court was led into this error by Section 3173, Revised Statutes T919, which provides that\\u2014 \\\"the terms 'place of confinement' or 'place of imprisonment,' as used herein, shall be construed to mean every place where any convict or prisoner shall be kept, detained, confined or employed according to law.\\\"\\nThe terms \\\"place of confinement\\\" and \\\"place of imprisonment\\\" so defined, are used in other sections of the statute relating to escapes (Secs. 3154, 3155, 3156, 3157, 3158, 3159, 3164 and 3166 and 3167), but not in Section 3162, the section here involved, and the reasons for the non-use of such terms in this section plainly appear upon an examination of all of the sections mentioned. It follows that Section 3173, wherein such terms are defined, has no application to Section 3162 and that Instruction 6, above quoted, was, clearly, erroneous.\\nOur investigation discloses that Section 3161, Revised Statutes 1919, was framed to cover escapes of convicts under the circumstances shown by this record.\\nThe judgment is reversed and' the cause remanded, so that the State may, if so advised, proceed further under the section mentioned.\\nHigbee and Davis, 0(7., concur.\\nPER CURIAM:\\nThe foregoing opinion by Hbnwood, C., is adopted as the opinion of the court.\\nAll of the judges concur.\"}"
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+"{\"id\": \"8734377\", \"name\": \"Thomas Jones, Appellant, v. Thomas H. Williams and Olive Williams\", \"name_abbreviation\": \"Jones v. Williams\", \"decision_date\": \"1948-02-09\", \"docket_number\": \"No. 40433\", \"first_page\": \"531\", \"last_page\": \"538\", \"citations\": \"357 Mo. 531\", \"volume\": \"357\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T19:54:30.276805+00:00\", \"provenance\": \"CAP\", \"judges\": \"Bohling and Barrett, (7(7., concur.\", \"parties\": \"Thomas Jones, Appellant, v. Thomas H. Williams and Olive Williams.\", \"head_matter\": \"Thomas Jones, Appellant, v. Thomas H. Williams and Olive Williams.\\nNo. 40433.\\n209 S. W. (2d) 907.\\nDivision Two,\\nFebruary 9, 1948.\\nSupplemental Opinion Filed, March 8, 1948.\\nMotion for Rehearing or to Transfer to Banc Overruled, April 12,1948.\\nJohn V. Goodson for appellant.\\nBan B. Hughes, John B. Hughes, Waldo Edwards and Paul B. Hess, Jr., for respondents.\", \"word_count\": \"2920\", \"char_count\": \"16737\", \"text\": \"WESTHUES, C.\\n[908] Plaintiff, Jones, on November 9, 1944, filed a petition in the Circuit Court of Macon County, Missouri. On January 23, 1947, the trial court' sustained defendants' motion to dismiss the petition. Plaintiff then filed a motion for new trial which was overruled and he appealed.\\nThe defendants, respondents here, filed a motion to dismiss the appeal. They have filed no brief on the merits. In appellant's brief no reference was made to the contents of plaintiff's petition. In fact no reference was made in the brief to the subject matter of the lawsuit, nor has appellant made any point on the question of whether the petition stated a cause of action. The points for review are therefore limited to questions of procedure.\\nIn the motion to dismiss respondent? assert that appellant's brief does not contain a concise statement of the grounds which vest this court with jurisdiction of the appeal. The brief contains a statement that title to real estate is involved. No other statement was made with reference to the nature of the action or the relief sought by the petition. The bare statement made is a conclusion and under the rules insufficient. We have determined our jurisdiction by an examination of the petition.\\nRespondents say the record does not contain any judgment and further that no judgment exists that could be supplied. The only entry or order made'by the trial court that may be considered a judgment is the order sustaining defendants' motion to dismiss the petition. This motion to dismiss stated as grounds therefor that the trial court lacked jurisdiction over the subject matter; that plaintiff had not the legal capacity to sue; that the petition failed to state a cause of action and further that the petition disclosed no cause of action could be stated. The order sustaining the motion reads as follows:\\n\\\"Defendants' motion to dismiss sustained as to counts 1, 2, 3 & 4 of plaintiff's petition and plaintiff's petition dismissed.\\\"\\nExceptions were taken to that ruling and a motion for new trial filed which was later overruled. ' Sec. 101 of Our Code, Laws 1943, page 385, governs this question. The latter portion of that section reads as follows: ,\\n\\\". . . any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify.\\\"\\nSince the motion to dismiss alleged that the petition failed to state a cause of action and also that the petition disclosed no cause of action could be stated, the sustaining of such a motion under Sec. 101 would be with prejudice and would be a final judgment from which an appeal could be taken. [909] \\\"We therefore hold that plaintiff had a right to appeal, when his petition was dismissed, on the grounds above indicated. The motion to dismiss the appeal is therefore overruled.\\nTurning now to appellant's brief we find that all the points made pertain to questions of whether the trial court should have sustained plaintiff's motion for a .judgment by default. This requires an examination of the record. We will state it as briefly as possible. Plaintiff's petition was filed November 9, 1944, and served upon the defendants on December 11, \\u00cd944. The January Term of Court opened on January 15, 1945. The first entry appearing at that term was made on February 5, 1945, which entry reads as follows:\\n\\\"Hughes & Hughes enter their appearance as attorneys for all defendants. Leave to defendants to file motion to dismiss. Same filed.\\\"\\nThis motion to dismiss alleged that plaintiff was a non-resident of the state and a subject of Great Britain and that no bond for costs had been filed. The next entry, made on September 5, 1945, shows that plaintiff filed a motion for interlocutory judgment on the ground that defendants had not filed an answer. Following this, the record shows that on September 7, 1945, the court sustained the motion to dismiss conditionally, granting plaintiff until October 8 to file a bond for costs. The court also, on September 7, overruled plaintiff's motion for interlocutory' judgment and granted the defendants leave to plead on or before October 28, 1945. The record then shows that plaintiff filed a bond for costs on October 8, 1945, and that .on October 24, the defendants filed their motion to dismiss plaintiff's petition on the ground that it did not state a cause of action. This motion was referred to in the forepart of this opinion. On December 8, 1945, plaintiff filed a second motion asking for interlocutory judgment, alleging that defendants were given leave to plead on or before October 28, 1945, and no pleading had been filed by the defendants. On January 31, 1946, the# court overruled plaintiff's motion for interlocutory judgment and gave leave to plaintiff to file a motion to strike defendants' motion to dismiss from.the files. The motion was filed that day. This motion alleged that the defendants' motion was not responsive td the order of the court giving de-' fendants' leave to plead and that the motion to dismiss bad not been served on the plaintiff or his attorney. On February 8, 1946, the court denied plaintiff's motion to strike defendants' motion to dismiss from the files. On February 9, 1946, plaintiff filed a motion for judgment on the pleadings.on the ground that defendants were in default. On February 26, 1946, plaintiff's motion for judgment on the pleadings was overruled. No further, action seems to have been taken thereafter until January 21,'1947, when the record shows that the' case was set for trial for January 23, 1947. The record then discloses that on January 23, 1947, defendants' attorneys were present in court and that plaintiff's attorney was present, but announced be was not appearing for plaintiff. The only motion then pending in the case was defendants' motion to dismiss plaintiff's petition. The record shows that the court asked plaintiff's counsel if he wished to be heard on that motion and counsel replied: \\\"I am here merely as a spectator, Your Honor.\\\" The court then sustained defendants' motion to dismiss and the record shows that plaintiff's counsel . . then and there duly objected and excepted, . . . \\\" Thereafter motion for hew trial was duly filed which was overruled and plaintiff appealed.\\nAppellant contends that he became entitled to a judgment by default on the second day of the January Term, 1945. He says in his brief that the trial court was without legal authority thereafter to give leave to file motion to dismiss; that the proper procedure was to enter interlocutory judgment, citing Sec. 1239 R. S. Mo. 1939, Mo. R. S. A.; Laclede Land & Improvement Co. v. Creason, 264 Mo. 452, l. c. 457, 175 S. W. 55; Stein v. Rainey, 315 Mo. 535, 286 S. W. 53; Cornoyer v. Oppermann Drug Co., 56 S. W. (2d) 612. No doubt a plaintiff is entitle to an interlocutory judgment when the defendant duly served is in default, however, Sec. 1240 E. S. Mo. 1939, Mo. E. S. A., authorizes a court, on timely motion and for good cause shown, to set aside a default judgment and permit [910] the defendant to file an answer. In this case plaintiff did not seek an interlocutory judgment until seven months after 'the defendants had asked the court and were given leave to file a motion to dismiss and the motion was filed. In the absence of a showing to the contrary we must assume that the trial court properly exercised its discretion in permitting defendants to contest plaintiff's claim. If sufficient grounds existed for such action it was useless thereafter to enter an interlocutory judgment only to be set aside and to permit the defendants to contest the case. However, a complete answer to plaintiff's contention may be found in the Creason case, supra. In that case Creason was in complete default. The trial court entered a judgment against plaintiff on the ground that plaintiff was not entitled to any relief and decreed title to the land in controversy to be in Creason, the defaulting defendant. This court in reviewing the judgment said in the concluding portion of the opinion:\\n\\\"It follows that the judgment herein should be. reversed and the case remanded with directions to make a general finding against plaintiff, dismissing its petition and in favor of defendants for costs, but to refrain from affording affirmative relief to defendant Creason, who made default.\\\"\\nSee also McCrosky v. Burnham, 282 S. W. (Mo. App.) 158, l. c. 160 (3) (4, 5). In that ease it was held a judgment by default should not be entered in plaintiff's favor if the petition failed to state a cause of action. In the case before us the trial court ruled that plaintiff's petition did not state a cause of action. If that be true, then the trial court rightly dismissed plaintiff's petition even if defendants had never appeared in court. As above stated, appellant has made no contention in this court that his petition stated a cause of action. In the brief appellant made no reference to the petition or its contents and the brief does not even reveal the nature of plaintiff's action. In such a situation, there being a judgment for the defendants, we cannot examine the petition for the purpose of determining its sufficiency. Appellant has not asked us to do so.\\nThe judgment is affirmed.\\nBohling and Barrett, (7(7., concur.\\nPER CURIAM:\\nThe foregoing opinion by Westitues, C., is adopted as the opinion of the court.\\nAll the judges concur.\\nSUPPLEMENTAL OPINION\\nWESTHUES, C.\\nIt has been suggested to the writer of the opinion in the above case that the opinion erroneously held the action of the trial court, sustaining the motion to dismiss the petition on the ground that it failed to state a cause of action, was a final judgment from which an appeal could be taken. It has been suggested that Sec. 101 of Our Code, Laws 1943, page 385, has no bearing on this question. The case of Edwards v. Sittner, 206 S. W. (2d) 578, l. c. 580 (6, 7), recently published, was referred to as holding to the contrary. We have given the question further attention and have reached the following conclusions.\\nIt is true that under the new code the sufficiency of a pleading to state a cause of action or defense must be raised by a motion to dismiss as provided in Sec. 62 of the code. Under the old practice such a question was presented by a demurrer. Thus far the motion to dismiss and the demurrer are similar. There is, however, a vast difference as to the effect of a ruling on a motion to dismiss and a ruling on a demurrer under the old practice. Under the practice as formerly in vogue, if a demurrer to a petition on the ground no cause of action was stated was sustained, a plaintiff had the right under the statute then in force, but now repealed, to file an amended petition. Sec. 925 R. S. Mo., 1939, Mo. R. S. A. Hence, the rulings of various eases, that a plaintiff's petition, but not his cause of action, was dismissed by the sustaining of a demurrer. Therefore, the sustaining of a demurrer was not a final judgment See Juvenal v. Heim, 238 Mo. App. 217, 177 S. W. (2d) 672; State ex rel. Adams v. Stockton, 123 S. W. (2d) 611. If a third petition was held insufficient on demurrer then the trial court was in duty bound [911] to enter a final judgment against the plaintiff. See Sec. 948 R. S. Mo., 1939, Mo. R. S. A. Under the old practice, therefore, sustaining a demurrer did not have the effect of dismissing the cause of action because plaintiff had the right as a matter of law to file an amended petition. Sec's. 925 and 948, supra, have been repealed and cases based upon those sections cease to be authority on the question now \\\"before us.\\nUnder the new code a trial court may permit a plaintiff to file any number of amended petitions if in the. opinion of the court justice so requires. The statute says, \\\". . . leave shall be freely given when'justice so requires.\\\" Sec 81 of the New Code, Laws 1943, page 378. See also Gerber v. Schutte Inv. Co. et al., 354 Mo. 1246, 194 S. W. (2d) 25. However, a trial court may, under the new code, determine on the first motion to dismiss that the petition filed is insufficient and that it would be useless to give leave to amend because a cause of action could not be stated. Under the. new code a party does not have the right, as a matter of law, as he did under the old practice, to file an amended petition after a motion to dismiss on the ground of failure to state a cause of action has been sustained. Sec. 81 of the code merely directs the trial court to be liberal in granting leave to file amended pleadings. Sec. 126 of the New Code, Laws 1943, page 390, provides that an appeal may be taken from a final judgment. Neither Sec. 81 or Sec. 126 of the new code, supra, have any bearing on the question of the effect of an order sustaining a motion to dismiss. In our opinion Sec. 101 does govern the question. This section plainly states: \\\"A dismissal with prejudice operates as an adjudication upon the merits.\\\" The section also provides:\\n\\\". . . any involuntary dismissal other than one for lack of jurisdiction or for improper venue shall be with prejudice unless the court in its order for dismissal shall otherwise specify.\\\"\\nTherefore, an order of a trial court sustaining a. motion to dismiss on the ground that no cause of action is stated in an adjudication upon the merits as well as a dismissal with prejudice. This is true unless the trial court shall otherwise specify. The conclusion seems to be inescapable that such an order, under the plain terms of the statute, is a final judgment, the reason-being that the statute so says. If a plaintiff desires to file an amended petition it is up to him to ask leave to do so. The law no longer gives him that right as a matter of law. If he does not wish to file an amended petition he has the right to appeal and have the question of the sufficiency of his pleading determined by an appellate court. The trial court may thereafter permit an amended petition, to be filed by sustaining a motion for new trial (Gerber v. Schutte Inv. Co., 354 Mo. 1246, 194 S. W. (2d) 25, supra); or by setting aside its judgment within thirty days (See. 118) regardless of whether or not a motion for new trial has been filed.\\nWe hold, therefore, that an order dismissing'a petition because no cause of action is stated is a final judgment unless the trial court shall, otherwise specify. It seems to the writer that rulings,- such as in the case of Edwards v. Sittner, 206 S. W. (2d) 578, l. c. 580 (6, 7), carry into the new code procedural matters long followed under the old practice, but which were expressly omitted and discardeunder the new code, and that the sections of law giving rise to that practice have been expressly repealed. Therefore, that part of the opinion holding to the contrary in the case of Edwards v. Sittner, supra, indicated by syllabi (6, 7), is hereby disapproved. It will be noted that the cases cited by the Court of Appeals, as for example, Juvenal v. Heim, supra, were expressly based upon the sections of law above discussed and now repealed.\\nThe repealing of those sections and the enactment of Sec. 101, supra, certainly indicate that a new procedure was desired. Also to be considered is Sec. 59 abolishing demurrers. The courts should follow this new procedure and not engraft upon the law, or rather carry into the new practice matters which were expressly discarded.\\nIt has been suggested that our ruling is in conflict with Federal Cases construing See. 41 (b) of the Federal Code, [912] which it is said was the basis for See. 101 -of our code. It will be noted, however, that Rule 41 (b) of the Federal Code does not contain the provision that a dismissal such as we have before us now shall be with prejudice. 1 If Sec. 101 is based upon the Federal Rule, then we must give all the more emphasis to the new clause that was inserted in Sec. 101 and is not-, contained in Rule 41 (b). We think this difference is sufficient justification for not following the federal practice. ,\\nUpon further consideration of this case we are satisfied with the result reached in our original opinion. This supplemental opinion' has been prepared for the purpose of further explaining our ruling.\\nBohling and Barrett, GC., concur.\\nPER CURIAM:\\nThe foregoing opinion by Westhues, C., is adopted as the opinion of the court.\\nAll-the judges concur.\"}"
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+"{\"id\": \"8735049\", \"name\": \"Associated Holding Company v. W. B. Kelley & Company et al., City of St. Joseph, Appellant\", \"name_abbreviation\": \"Associated Holding Co. v. W. B. Kelley & Co.\", \"decision_date\": \"1935-04-17\", \"docket_number\": \"\", \"first_page\": \"851\", \"last_page\": \"855\", \"citations\": \"336 Mo. 851\", \"volume\": \"336\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:40:04.529296+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Associated Holding Company v. W. B. Kelley & Company et al., City of St. Joseph, Appellant.\", \"head_matter\": \"Associated Holding Company v. W. B. Kelley & Company et al., City of St. Joseph, Appellant.\\n81 S. W. (2d) 624.\\nDivision one,\\nApril 17, 1935.\\nJohn S. Boyer, Mchard S. Duncan and Frmcis A. Bielde for ap-. pellant.\\nWm. M. Morton for .Fairleigh Realty Company.\\nKranitz <& Duncan for Associated Holding Company.\", \"word_count\": \"1253\", \"char_count\": \"7114\", \"text\": \"COLES, J.\\nThis action was instituted in the Circuit Court of Buchanan County, Missouri, by respondent against Fairleigh Realty Company, the city of St. Joseph, Missouri, and other defendants upon two special tax bills alleged to have been duly issued for the paving of Frederick Avenue in said city. Appellant's petition prayed judgment for the amount of the special tax bills, with interest, and \\\"that the same be declared a special lien\\\" upon the property therein mentioned \\\"and that said lien and all right, title and interest of the defendants in said property be foreclosed and that it have execution therefor;\\\" and further prayed \\\"that the court declared said judgment to be a general judgment against defendant city of St. Joseph, to be collected in like manner as other judgments against said city, in addition to the lien of said tax bill against the property herein-above set out.\\\" The defendant Fairleigh Realty Company filed its separate answer to the petition in which it admitted that the defendant city of St. Joseph is interested in the real estate described in plaintiff's petition and denied each and every other allegation therein contained, and specifically denied that it was the owner or had any interest in the property mentioned in the petition and alleged, in substance, that the defendant city of St. Joseph acquired the legal title to the real estate described in the petition by virtue of a dedication thereof made by the Realty Company and also set up certain acts of the city which it was averred constituted an acceptance by the city of the alleged dedication. The appellant city of St. Joseph filed an answer to the petition in which it denied each and every allegation of the petition except those therein expressly admitted. The answer admitted that it is a municipal corporation existing under the laws of the State of Missouri as a city of the first class; and that the special tax bills described in the respective counts of the petition were issued to Consolidated Paving & Material Company and by said company assigned to the plaintiff, and further specifically denied that it \\\"has any claim to or interest in\\\" the property in question and ' ' disclaims any right, title or ownership in or to said property or any part thereof. \\\"\\nThe case was tried in the court below without a jury. The trial court found that the tax-bills sued upon were respectively a charge upon certain described property and further found that \\\"at the time of the improvement \\u00e1nd -up to the present time defendant city \\\"of St. Joseph owned and still is the legal holder and owner of said real estate in fee simple absolute;\\\" that defendant Fairleigh Realty Company \\\"has no right, title or interest in or to said real estate herein described and is not the legal owner thereof.\\\" Thereupon, the court below entered a general judgment in favor of plaintiff and against the defendant city of St. Joseph upon both counts of the petition the aggregate amount of the judgment, with interest, being in the sum of $1985.54. Afterwards in due course the defendant city of St. Joseph was granted an appeal to this court.\\nAlthough the jurisdiction of this court is not challenged by any of the parties to this controversy, it is necessary for the court to determine whether it has jurisdiction of this cause before it can properly enter upon the consideration of its merits. We are clearly of the opinion that under the provisions of Section 12 of Article VI of our Constitution limiting the appellate jurisdiction of this court we have no jurisdiction of the subject matter of this cause. As already stated the record herein shows that the amount involved in the present controversy is only $1985.54, and that a judgment in that sum was rendered in the trial court against the defendant city of St. Joseph, thus making it manifest that the appellate jurisdiction of this court does not attach by reason of the \\\"amount in dispute.\\\" The suit sought recovery upon two special tax bills issued to a contractor for performing work under an ordinance of the defendant city of St. Joseph providing for the paving of a street in that city. It is well settled by the decisions of this court that a suit for the enforcement of special taxes for benefits assessed for local improvements, such \\u00e1s are here in question, does hot involve the \\\"revenue laws of this state\\\" which the meaning of the relevant provision of our Constitution. [City of Laclede v. Libby (Mo.), 278 S. W. 372; State ex rel. v. Reynolds, 243 Mo. 715, 148 S. W. 623; State ex rel. Broughton v. Oliver, 273 Mo. 537, 201 S. W. 868; State ex rel. v. Sims, 309 Mo. 18, 274 S. W. 359; Chilton v. Drainage District, 332 Mo. 1173, 61 S. W. (2d) 744.]\\nThe fact that the city of St. Joseph is a party to the cause does not bring the case within the appellate jurisdiction of this court as a city, within a county, is not a \\\"political subdivision of the State\\\" within the meaning of the constitutional provision before mentioned. [Kansas City v. Neal, 122 Mo. 232, 26 S. W. 695; Green v. Owen, 326 Mo. 450, 31 S. W. (2d) 1037; City of Louisiana v. Lang, 251 Mo. 664, 158 S. W. 1; Smith v. Sedalia, 228 Mo. 505, 128 S. W. 735; City of St. Joseph v. Georgetown Lodge (Mo.), 8 S. W. (2d) 979; McGill v. City of St. Joseph (Mo.), 31 S. W. (2d) 1038.]\\nThe present suit does not involve \\\"title to real estate\\\" within the meaning of the controlling provision of our Constitution previously mentioned. The suit sought a judgment for the amount of the special tax bills sued upon and prayed that the judgment be declared a special lien upon the property described in the tax bills, and that such lien be foreclosed, and further prayed \\\"that the court declare said judgment to be a general judgment against the defendant city of St. Joseph, to be collected in like manner as other judgments against said city in addition to the lien of said tax bills against the property\\\" described in the tax bills. The title to real estate was not directly involved in the suit nor was the matter of title determined by the judgment. The question of title was only involved incidentally for the purpose of determining whether plaintiff was entitled to a judgment imposing a lien on the property or a money judgment against the defendant city. Upon the facts disclosed by the record it is clear that the case was not one \\\"involving title to real estate\\\" within the meaning of the constitutional provisions defining the jurisdiction of this court. [Nettleton Bank v. McGaughey, 318 Mo. 948, 2 S. W. (2d) 771; Turner v. Morris, 222 Mo. 21, 121 S. W. 9; Brannock v. Magoon, 216 Mo. 722, 116 S. W. 500; Paving Co. v. Hezel, 138 Mo. 229, 39 S. W. 781.]\\nAs this court has no jurisdiction of this case it will be certified to the Kansas City Court of Appeals. It is so ordered.\\nAll concur.\"}"
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+"{\"id\": \"8735281\", \"name\": \"Guy S. Martin, Appellant, v. Reginald B. Potashnick, Respondent\", \"name_abbreviation\": \"Martin v. Potashnick\", \"decision_date\": \"1949-02-14\", \"docket_number\": \"No. 41121\", \"first_page\": \"833\", \"last_page\": \"838\", \"citations\": \"358 Mo. 833\", \"volume\": \"358\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T02:25:40.827433+00:00\", \"provenance\": \"CAP\", \"judges\": \"West-hues and Bohling, CC., concur.\", \"parties\": \"Guy S. Martin, Appellant, v. Reginald B. Potashnick, Respondent.\", \"head_matter\": \"Guy S. Martin, Appellant, v. Reginald B. Potashnick, Respondent.\\nNo. 41121.\\n217 S. W. (2d) 379.\\nDivision Two,\\nFebruary 14, 1949.\\nMartin, Peper & Martin, William McChesney Martin, Christian B. Peper and Malcolm W. Martin for appellant.\\nFinch <& Finch by Lehman Finch and. J. A. Qochenour for respondent.\", \"word_count\": \"1886\", \"char_count\": \"11023\", \"text\": \"[380]\\nBARRETT, C.\\nIn this \\u00e1ction the plaintiff seeks to recover the-sum of $11,262.75 from his former partner, Reginald B. Potash-nick. The trial court- sustained a motion to dismiss his petition and the question to be decided is whether he has pleaded and relies upon a cause of action governed by the somewhat uncommon first section of our ten-year statute of liihitations: \\\"an action upon any writing, . . . for the'payment of money.\\\" Mo. R. S. A., Sec. 1013. If he does not rely upon and has not pleaded \\u00e1 cause of action upon a writing for the payment of money his cause is barred by the five-year stat ute of limitations. ; Mo. It. S. A., Sec. 1014. Broadly construing tbe petition most favorably to the plaintiff (Home Ins. Co. v. Mercantile Tr. Co., 219 Mo. App. 645, 284 S. W. 834, 835) the precise question is whether the writing, under the allegations of the petition, either expressly or by fair implication contains a promise to pay money. Herweck v. Rhodes, 327 Mo. 29, 33, 34 S. W. (2) 32, 33; Parker-Washington Co. v. Dennison, 267 Mo. 199, 183 S. W. 1041.\\nThe petition, in separately numbered paragraphs, first alleges that the defendant and the plaintiff entered into a written contract on the 10th day of -October 1940. The petition then states, before setting forth the contract, that prior and subsequent to the date of the contract the plaintiff and the defendant had a mutual running account with each other. .A separate paragraph sets forth the substance of the written agreement, that there were differences between the plaintiff and the defendant as to the amount the one owed to the other, and says that \\\"the determination of what the indebtedness actually was as between the parties to said agreement, should be submitted to one John Fabick or to some other party to be mutually agreed upon as arbitrator,\\\" the decision of the arbitrator to be final. The petition alleges the plaintiff's willingness to arbitrate but charges that the defendant refused to submit the matter of an accounting to Fabick . and has failed and refused to take any step towards the selection of an arbitrator or the submission of the items set forth in their agreement to arbitration and, therefore, the plaintiff says the arbitration was not and could not be had. And, the petition asserts, \\\"He is seeking to recover from defendant for the items enumerated in said written agreement and set out hereinafter in paragraphs 11 and 12, by virtue of an open, current and mutual account on transactions had between plaintiff and defendant prior to said October 16, 1940, and that defendant is indebted to plaintiff by reason of said account in the sum of $11,262.75, and as set forth therein.\\\" Then, without refer,ence to any other allegation, the petition sets forth the writing:\\n\\\"October 10, 1940.\\nReceived of R. B. Potashnick, check for One Thousand Nine Hundred Fifty Dollars and Ninety-Six Cents ($1,955.96) in full payment of all and any notes and accounts of whatever kind or nature, with the exception of the items herein below listed, which it has been agreed between us, are to be submitted to John Fabick or to some other party mutually agreed upon as arbitrator, [381] and whose decision shall be final and binding upon R. B. Potashnick and myself. It is to be understood that settlement shall be named within five days after decision of such arbitrator.\\\"\\nThen follows the list of items totalling $11,262.75 headed \\\"Martin Charges Against Potashnick.\\\"\\nThe plaintiff points to the written contract and urges that it is more than a mere agreement to arbitrate. He argues that the con tract contains, in addition to the agreement to arbitrate, -an affirmative promise to pay an amount to' be ascertained 'by arbiti'ation; a promise to pay a matured obligation, the only contingency being a finding by an arbitrator or a court that the'items in dispute were valid charges against Potashnick. Admittedly, if the language of the writing, by fair implication, is susceptible' to the construction that it contains a promise to pay money there can be no objection to the fact that the precise sum to be paid is contingent or conditional and to be ascertained after the promise to pay has been made.. Lorberg v. Jaynes, (Mo. App.) 298 S. W. 1059; annotation 111 A. L. R. 984. Once, by fair implication, the obligation is found, the exact amount to be paid or other detail of the obligation may be shown by extrinsic evidence. Brown v. Irving, (Mo. App.) 269 S. W. 686; annotation 129 A. L. R. 603, 611. But the obligation contemplated by the statute, and upon-which the plaintiff must necessarily rely, is the promise to pay money. Parker-Washington Co. v.- Dennison, supra. And that promise or obligation must arise 'from the language' and fair implication of the writing. The' promise may not be shown by extrinsic evidence or consist of an obligation imposed by law from the facts of the transaction. Herweck v. Rhodes, supra. In -this connection, as we have indicated, the plaintiff's emphasis, in fact his entire argument, is upon the writing alone. But there is a further aspect of his case which cannot be ignored and that is the essence and nature of his whole petition. When these two aspects' of his cause are considered it bec'oixies qxxite clear that the obligation which he seeks to enforce is hot upon a promise contained in ' ' any writing, . . . for the pay: ment of money, ' ' and it becomes unnecessary to make this case turn alone upon whether a written agreement to submit a dispute to arbitration is a promise in writing for the payment of money-within the meaning of the ten-year statute of limitations.\\nBut, considering first the agreement, the essence of a promise to pay money is that it is an acknowledgment of an indebtedness, an admission of a debt due and unpaid. 34 Words & Phrases, p. 295; Babler v. Rhea, (Mo.) 202 S. W. 604. An -agreement to submit the controverted items of a mutual account to an arbitrator and abide by his decision .is a contract (Thatcher Implement & Merc. Co. v. Brubaker, 193 Mo. App. 627, 633, 187 S. W. 117) and it may be an admission that there was something unsettled but it is not-necessarily, even by fair implication, an acknowledgment of an indebtedness. Cowart v. Perrine, 18 N. J. E. 454. If the\\\" debt were acknowledged there would be no point in submitting it to an arbitrator. In Lehner v. Roth, 211 Mo. App. 1, 227 S. W. 833, the instrument said \\\"pay to the order of Mike Lehner $834, ' ' but it was held that the writing' was not an acknowledgment of an indebtedness of the defendant to the plaintiff from which the law would imply a promise to pay money within- the meaning of the ten-year statute of limitations. But, as we have indicated, it is not necessary upon this record 1o make the somewhat, irretractable decision that a written agreement to submit disputed mutual'accounts to arbitration is not governed by the ten-year statute of-limitations. -.It is sufficient for the purposes of this opinion to consider the point only- in so far as it bears upon the essence of the plaintiff's cause of action and the precise obligation he seeks to enforce.\\nWhen the essential nature and essence of the plaintiff's cause of action is analyzed it, becomes apparent that the obligation he seeks to-enforce is not the written promise in the writing. This suit does not involve, the breach of any promise to arbitrate and it does .not seek-to enforce, in any manner, a contract to arbitrate.- Sturges, Commercial Arbitrations, Secs. 84-87. [382] Neither is it an action for damages for breach of a written contract. -Barnett & O'Neal v. Elwood Grain Co., 153 Mo. App. 458, 133 S. W. 856. The items and obligation which he seeks to' enforce are set forth and contained in a written contract but the essence of his cause of action is, as he plainly states, that \\\"He is seeking to recover from defendant for the items enumerated in said, written agreement and set out. hereinafter in paragraphs 11 and 12, by virtue of an-open, current and mutual account on transactions had between plaintiff and defendant prior to said October 16, 1940', and that defendant is indebted to plaintiff by reason of said account in the sum-of $11,262.75, and as set forth therein.\\\" Parker v. Shell Oil Co., (Cal.) 175 P. (2) 838. Thus, clearly, by his own allegations he' does not rely upon or seek to enforce any obligation, acknowledgment of an , indebtedness. or promise in any writing for the payment of money. The obligation he would establish (annotation 129 A-. L. R. 603)'and enforce is entirely irrespective of the written contract. Herweck v. Rhodes, supra; Parker-Washington Co. v. Dennison, .supra; Nicholas v. First National Bank In St. Louis, (Mo.) 188 S. W. (2) 822; McIntyre v. Kansas City, 237 Mo. App. 1178, 171 S. W. (2) 805; Lehner v. Roth, supra; Babler v. Rhea, (Mo. App.) 202 S. W. 604.\\nIn addition the appellant contends, since the defendant entered into an agreement providing for arbitration and then failed and refused to carry out the - agreement 'that he is precluded by equitable estoppel from relying on the bar of the statute of limitations. Annotation 130 A. L. R. 8, 42; 34 Ami Jur., Secs. 411-420. But in this ease no 'f\\u00e1ets are set forth from Which it could be found that the defendant induced the''plaintiff to refrain from instituting his suit for more than five years.' Sugent v. Arnold, 340 Mo. 603, 101 S. W. (2) 715. The contract was entered into on the 16th day of October 1940 and-the only fact alleged, in explanation, of the plaintiff's failure to institute his'suit for, more than five years is that throughout the years he insisted on- arbitration and the defendant failed and refused to arbitrate and' for that reason arbitration, could not be had. The defendant's continued failure and refusal to arbitrate could not be con strued as an affirmative inducement to the plaintiff to not institute his action. Hornblower v. George Washington University, 31 App. D. C. 64, 75; Howard University v. Cassell, 126 F. (2) 6. In short, it does not appear from the facts alleged that the defendant used the agreement as a means of inducing the plaintiff to refrain from instituting his suit before it was barred by the five-year statute of limitations. 3 Am. Jur., Sec. 46, p. 878; 54 C. J. S., Sec. 255, p. 287.\\nSince it affirmatively appears upon the face of the plaintiff's pleading, in its entirety, that the obligation he seeks to enforce is not governed by the ten-year statute of limitations the trial court properly dismissed the petition. Accordingly the judgment is affirmed.\\nWest-hues and Bohling, CC., concur.\\nPER CURIAM:\\n\\u2014 The foregoing opinion by Barrett, C., is adopted as the opinion of the court.\\nAll the judges concur.\"}"
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+"{\"id\": \"8736242\", \"name\": \"J. W. Yarbrough, Appellant, v. W. A. Gage & Company, Incorporated, a Corporation, and R. L. Ward, Trustee\", \"name_abbreviation\": \"Yarbrough v. W. A. Gage & Co.\", \"decision_date\": \"1934-04-19\", \"docket_number\": \"\", \"first_page\": \"1145\", \"last_page\": \"1169\", \"citations\": \"334 Mo. 1145\", \"volume\": \"334\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T01:01:42.626681+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sturgis and Hyde, GC., concur.\", \"parties\": \"J. W. Yarbrough, Appellant, v. W. A. Gage & Company, Incorporated, a Corporation, and R. L. Ward, Trustee.\", \"head_matter\": \"J. W. Yarbrough, Appellant, v. W. A. Gage & Company, Incorporated, a Corporation, and R. L. Ward, Trustee.\\n70 S. W. (2d) 1055.\\nDivision One,\\nApril 19, 1934.\\nSharon J. Pate and Von Mayes for appellant.\\nWard & Beeves for respondents.\", \"word_count\": \"10158\", \"char_count\": \"60093\", \"text\": \"FERGUSON, C.\\nThe plaintiff resided at Steele in Pemiscot County, Missouri. He eng\\u00e1ged, over a period of many years, in -the mercantile business in that county and as a buyer and dealer in cotton, raising, buying and selling cotton. For several years he also owned and operated a cotton gin. Defendant, W. A. Gage and Company, Incorporated, is a nonresident or foreign corporation, incorporated under the laws of the State of Tennessee authorized and engaged in carrying on the business of a cotton factor or merchant with its office and place of business at Memphis, Tennessee. A business arrangement, which continued over a period of ten years or more, existed between plaintiff and Gage & Company whereby plaintiff in the carrying on of his business as a cotton dealer or cotton merchant shipped his cotton to, and marketed it through, Gage & Company, as cotton factors, at Memphis, Tennessee. In 1926 plaintiff executed two promissory notes, one for $8000 and one for $10,000, payable to Gage & Company and at the same time executed a deed of trust, on real property situate in Pemiscot County, securing 'the payment of said notes, Gage & Company being the beneficiary therein. The terms and provisions of said deed of trust and a \\\"cotton contract\\\" entered into by the parties at the same date and' time and. as part of the same transaction, as well as something of the history of the course of dealing! between them, will hereinafter be more fully stated.\\nThe. indebtedness secured by said deed of trust being past due and unpaid Gage & Company in 1929, caused proceedings to be commenced to foreclose the deed of trust. Whereupon plaintiff brought this suit seeking to enjoin and restrain such foreclosure alleging the notes and deed of trust to be void-for that Gage & Company \\\"in procuring said deed of trust and notes from plaintiff . . . was doing business in this State for which it was incorporated under the laws of Tennessee\\\" and that said corporation \\\"was not authorized of licensed to do business in this State . '.' . and had wholly failed to comply with the laws of this State relative to foreign corporations doing business in this State and in fact at no time has said defendant W. A. Gage & Company, Incorporated, complied with s\\u00fach laws.\\\" The petition then states, \\\"that if said deed of trust is valid plaintiff does not owe\\\" Gage. & Company \\\"said notes or any part thereof; . . . that since the execution and' delivery of said instrument and notes plaintiff has delivered for sale from time to time large quantities of cotton to said defendant\\\" Gage & Company \\\"to be sold according to instructions of plaintiff and the business transactions between plaintiff and said defendant since then have been many and. numerous; that said defendant claims .to have kept a complete record of all the business transactions between it and plaintiff since and before the execution and delivery of said instrument and notes while the plaintiff has not kept or been able to keep a complete record of all the business transactions between bimself and said defendant\\\" Gage & Company \\\"since or before the execution; and delivery of said instrument and notes;\\\" that Gage & Company \\\"fails and refuses to properly account to plaintiff for cotton delivered by plaintiff to it as aforesaid\\\" and \\\"is indebted to.plaintiff for damages in the sum of $10,000 or more for failure to sell his said cotton according to true weights or the instructions of plaintiff and therefore plaintiff- would have a counterclaim to prosecute against said defendant\\\" Gage & Company \\\"should said company sue plaintiff upon said notes but plaintiff is powerless to offset said matter of counterclaim against said notes in the proceedings of said trustee to foreclose said deed of trust.\\\" The prayer of the petition is that \\\"an order be issued at once.temporarily restraining\\\" the defendant trustee \\\"from proceeding with the threatened\\\" foreclosure sale \\\"under the power of sale contained in said deed of trust until the matters herein set forth have been heard and adjudicated by the court and\\\" that \\\"on final hearing of this cause defendants be permanently, enjoined from selling said property under said deed of trust and that said deed of trust.be canceled and for naught held, and,..if said deed of trust is valid, then plaintiff prays the court to ascertain, and determine the amount of damages due plaintiff from defendant for failure to sell the cotton of plaintiff according to true weights or the instructions of plaintiff and that such amount be offset against said notes and that an accounting be had between plaintiff and defendant to .ascertain what amount, if anything, the plaintiff owes on said notes, and that the amounts of the mutual demands or indebtedness between plaintiff and defendant be ascertained and determined and that whatever sums the defendant owes plaintiff the same shall be offset against said notes, and if the court finds after ascertaining and offsetting the mutual demands of plaintiff and defendant against each, other plaintiff owes defendant any amount on said notes the court shall.adjudge the same and permit plaintiff to pay such.amount to: defendant and upon the payment of such amount to defendant the court adjudge said deed of trust and notes to. be fully paid, and satisfied and order and direct defendant to satisfy the record, of said deed of trust . . . and restrain defendants from selling, said property under said deed of trust. ' ' A temporary injunction issued. The answer of Gage1 & Company admits that \\\"it did not take out a license to do business in the -State of Missouri\\\" and avers .that \\\"in its business as a cotton factor and in making the loan in question to plaintiff in this ease it was not doing business in . the State of Missouri so that it was required\\\" by the statutes of this State \\\"to take out a license as a nonresident corporation in Missouri\\\" and \\\"denies that it violated the law\\\" of this State \\\"in that regard.\\\" Continuing the answer describes the nature and extent of the business carried on by defendant as a cotton factor and the manner in which same was conducted, sets forth an all\\u00e9ged course of dealing between plaintiff and Gage & Company over a period of \\\"several years\\\" and the circumstances of the loan which is evidenced by the notes and deed of trust; and asserts that the transactions with plaintiff were not such'as required that defendant \\\"take out a license to do business in this State.\\\" It is denied that the notes have been paid or that \\\"plaintiff \\\"is not indebted to defendant by reason of said notes\\\" or that defendant \\\"failed to sell any cotton by it held . . . for the plaintiff upon request of plaintiff to sell same.\\\"\\nOn the trial of the cause the business transactions between plaintiff and defendant \\\"covering a period of approximately four years next preceding July 1, 1929, were examined and an accounting made. The court found; that Gage & Company is a foreign corporation \\\"not licensed to do business in this State;\\\" that the mortgage and notes described in the petition were made in this State but were given in a transaction of interstate business and therefore same are valid and e\\u00e1n be enforced in this State; \\\"that according to the evidence, accounts, boobs and records of the defendant \\\"W. A. Gage and Company plaintiff owed defendant \\\"W.- A. Gage and Company a balance on said notes of $15,518.81 on the first day of July, 1929, and that said accounts, boobs and records are true and correct, except as to the-charge of $7859.12 against plaintiff for commissions, which the court finds to be excessive and unreasonable and finds that the defendant W. A. Gage and Company was entitled to charge plaintiff a. reasonable sum for commissions, to-wit, the sum of $3500, being $1 per bale for the cotton plaintiff sold by said defendant, and therefore the court finds that the true and correct balance due and unpaid on said notes is $11,209.69, with interest thereon at the rate of six per cent per annum from the first day of July, 1929.\\\" Judgment' was then entered: \\\"that the temporary injunction be . . . dissolved; that plaintiff pay the defendant \\\"W. A. Gage and Company, the balance due on said notes, being $11,209.69 with interest thereon at the rate of six per cent per annum, from the 1st day of July, 1929, and that upon the payment of said balance to said defendant, \\\"W. A. Gage and Company, or its agent or attorneys the defendants are ' enjoined from selling the property described in the deed of trust set forth in the petition . . . and said notes and deed of trust shall be considered paid and fully satisfied. ' '\\n- Both parties have appealed and the case comes here on the joint appeal. \\\"The plaintiff assigns as error (1) the\\u00a1 finding of the trial court that the notes and deed of trust are valid and enforceable and contends that under the evidence \\\"said deed of trust and notes were vbid'-on the ground defendant a foreign corporation was doing business in \\\"this State without being licensed Or qualified to do business iri this State\\\" and (2) that the finding and \\\"judgment that plaintiff Y/as: liable to defendant on the notes in question for the sum of $11,209.12, or any sum, was against the evidence.\\\" Defendant, as appellant, claims the trial court \\\"erred, (1) in charging back against defendant $4309.12i as alleged overcharge of commission\\\" and (2) \\\"in not allowing ten per cent of the amount due defendant as attorney's fee.\\\"\\nManifestly we must first rule plaintiff's insistence that in taking the notes and deed of trust in question defendant, a foreign corporation, was doing business in this State and since it is admitted that defendant had not complied with our statutes prescribing the conditions on which corporations of other States may do business in this State (Secs. 4598-4599, R. S. 1929) the notes and deed of trust are void and unenforceable. This requires a statement of the facts as to the manner in which defendant operated its business as a cotton factor or merchant and the transactions and course of dealing between it and plaintiff in that connection out of which the notes and the deed of trust arose. As stated, and admitted, Gage & Company is a Tennessee corporation organized, as stated in its charter, \\\"for the purpose of carrying on the trade of merchants and cotton factors, engaged in the business of buying: and selling cotton and cotton seed on commission or otherwise and making advances to merchants and planters or other growers of cotton either in money, merchandise or property for the purpose of controlling the handling of same on the market. ' ' Its situs and place of business is at Memphis, Tennessee, where it maintains large warehouses and a corps of weighers and inspectors. Cotton shipped to it to be handled by it as a cotton factor was stored in the warehouses and sold as directed by the owners. It employed salesmen and maintained \\\"sample rooms ' ' in which samples of the cotton which it was offering for sale on the Memphis market were exhibited for examination and inspection by prospective buyers. An office was maintained and a complete record of all transactions with its customers was kept. This affords a brief and general description of its place of business at Memphis. Cotton was shipped to it by its customers or clients, cotton growers, buyers and dealers, in Missouri, Arkansas, Kentucky, Mississippi, Louisiana and Tennessee. Gage & Company stored this cotton in its warehouses^ and held it for sale as and when ordered or directed by the owners. In carrying on the business it looked after the shipment of the cotton and the unloading at Memphis; advanced and paid the insurance and freight thereon; collected \\\"freight rebates;\\\" attended to the weighing and inspection; took samples from the bale and exhibited same in its sales rooms; advised by correspondence, telephone and telegraph with the owners as to prices and sales; and furnished the owners memoranda, reports and statements covering each, shipment and sale and for such services charged its customers a commission of two and a half per cent on sales made. To increase- and build up its business and proc\\u00fare and. provide for the shipment of cotton to it Gate & Company, from time to time, would loan or advance money to customers who were growers of or dealers in cotton in the several states mentioned. This was by way of assisting these cotton merchants or dealers to provide the necessary capital to buy and market cotton or finance his business through the cotton season. It was the custom or practice in making! these advances to require the customer to execute a note for the principal sum agreed upon as an advancement and secure same by a mortgage on cotton crops or real property which mortgage, as does the one in question herein, specified and provided that the customer would ship to Gage & Company at Memphis, a specified minimum quantity of cotton which was fixed at an amount the- value of which would be ample and more than sufficient to pay the- advancement and thus afford security therefor. The mortgage was so drawn as to also secure any further advances of money that might be made in addition to the principal sum! of the note with provision for the shipment of additional quantities of cotton, on a ratio therein fixed as security for such additional sums as might be advanced. In connection with the note and mortgage it was customary to also take what is denominated a cotton contract whereby the customer agreed and bound himself to ship to Gage & Company stated amounts of cotton in conformity with and as provided for) in the mortgage. Gage & Company did not purport to loan money as an investment or to engage in the business, as such, of loaning money. Its credit manager, E. E. Whitner testified: \\\"We are not in the money loaning business; the only reason we loan money is in, consideration of the borrower consigning his cotton to us at Memphis to be handled by us on commission. We had that understanding with every one that we loaned money to. Money was loaned in consideration for the agreement to ship cotton to us.\\\" The amount of the advance thus provided for was not immediately paid over in full to the customer but he was given a credit therefor upon the books of Gage & Company and as the customer needed funds in carrying on his cotton business he would draw drafts upon Gage & Company which were accepted and paid by it at Memphis. Gage & Conip'any did not maintain or have an office or place of business or agent or employee in this State nor did it buy or sell cotton in this State. Such advances as were -made to its customers in this State were either arranged for and agreed upon by correspondence or the credit man from the Memphis office would call upon the customer and discuss the matter. For some six or seven years prior to 1926 plaintiff had been doing business with the defendant Gage & Company, in the manner above indicated, receiving advances from them and pursuant to an agreement so to do shipping them cotton for storage and sale by them, on commission, at their place of business, Memphis. Plaintiff maintained an active and continuing account with Gage & Company. This account extending over a period of many years rep resented the transactions bad between them in the shipment by plaintiff of cotton to Gage & Company for. sale on commission and the advances made by the company and expenses and commissions charged against plaintiff. In continuance of this course of dealing which had existed between them for many years the notes and deed of trust involved herein were executed at Steele, Missouri, under date of August 28, 1926 ; the note for $10,000 being due and payable on November 1, 1926, after date and the $8000 note on January 1, 1927, after date. The property described in the deed of trust is all situate in Pemiscot County, Missouri. The; deed of trust refers to a then existing indebtedness of plaintiff to Gage & Compaq though the amount thereof is not specified and after describing the notes it is stated that the instrument is executed in consideration of the indebtedness represented by said notes and .the agreement of Gage & Company \\\"to make advances of money and supplies to him (plaintiff) between the present date and until this instrument is paid in full and canceled of record\\\" and to secure the payment of the notes described and plaintiff's \\\"present indebtedness to said Gage and Company as well as the advances that it may make to him between now and until this instrument is paid in full.\\\" The deed of trust provides that should plaintiff fail to pay \\\"said notes at maturity and said advances the whole of the principal and all other sums hereby secured shall at once become due and payable for all purposes whether for suit on the debt or foreclosure.\\\" The deed of trust further sets out that plaintiff \\\"has agreed to ship\\\" Gage & Company \\\"400 bales of cotton by January 1, next and in the event he fails to ship said cotton or all of same\\\" to pay the company a specified amount per bale on the number of bales he fails to ship \\\"as liquidated damages for the failure to carry out his agreement\\\" and it is further specified and agreed that should the company make further advances in addition to and above the amounts specified in the notes, which additional advances are optional with the company, plaintiff \\\"will ship\\\" the company \\\"one bale of cotton for each twenty dollars\\\" so charged to him. It is specified that plaintiff shall pay \\\"six per cent interest per annum on all amounts\\\" that the company.\\\"may advance him on open account as well as on the notes described.\\\" Under the same date and at the same time plaintiff executed a \\\"cotton contract\\\" whereby, as set out in the deed of trust, he agreed to \\\"deliver or cause to be delivered to the said W. A. Gage- and Co., Inc., at their warehouse in the City of Memphis on or before the first day of January next 400 bales of cotton to be sold\\\" by said company \\\"as commission merchants.\\\" The cotton contract specifically mentions only the note for $8000 but it provides for the sale of the 400 bales of cotton which plaintiff agrees to ship Gage & Company as commission merchants and that from the proceeds thereof the company \\\"shall first.pay\\\" all storage charges on said cotton \\\"and eommis-' sion for selling;\\\" \\\"secondly, pay any additional sum advanced me by the said ' ' company ' ' which may not be secured by note; \\\" \\\". . . thirdly, pay any storage and commission on cotton which I fail to ship as above agreed; and fourthly apply the remainder of the proceeds of said cotton or other payments to the promissory note above mentioned or to any other debit with which I stand charged. W. A. Gage & Co., Inc., having the right, at their option, to apply or change application of payments or make reapplication of payments.\\\" Other provisions contained in the deed of trust as to shipment of additional cotton at the rate of one bale for each $20 additional advancement made and charged to plaintiff by the company are also set out in the contract. At the then prevailing price the market value of 400 bales of cotton was \\\"more than $30,000.\\\" The two notes, the deed of trust and the cotton contract were executed as of the same date, seem to have been one transaction and to constitute an arrangement between the parties whereby in consideration of defendant making advancement as thereby provided for plaintiff was to ship cotton to defendant at Memphis to be there handled and sold by it in the course of its business as a cotton factor. The various instruments were prepared, dated and executed in this State, sent to the office of the company at'Memphis for approval, were there approved and the deed of trust was then recorded. As we have stated, the money advanced was thereafter paid out by defendant at Memphis, from time to time, on drafts drawn by plaintiff.\\nSeparating or segregating the execution and taking of the notes and deed of trust from the transactions out of which they arise and of which they are a component part the plaintiff seems to direct his argument to the proposition that said instruments are Missouri con-' tracts and that the mere act of subscribing and executing same in Missouri and the acceptance thereof by defendant constitutes' a doing of business in this State by defendant, a foreign corporation, within the meaning of our statutes. But when we consider the nature of the business carried on by defendant, the manner thereof and the substance of the whole transaction out of which the notes and deed of trust arise and with which they are immediately and. directly connected it is obvious that the instruments do not evidence or represent debts growing out of business done or carried on by the defendant in this State nor do they contemplate or provide for the doing of business in this State by defendant; rather the whole and continuous course of dealing between plaintiff and defendant and the particular phase thereof involved in the taking of the notes and deed of trust appears to have been the transaction and carrying on of-business of an interstate character and therefore not within the purview of the statutes which plaintiff invokes. The notes and deed of trust- in question being incidental to, an appropriate part of and inseparably linked with interstate commercial transactions must be treated as legitimate and valid notwithstanding defendant's noneom-pliance with the State statutes for the requirements of a state statute governing the doing of business by a foreign corporation within the State are not applicable to transactions by and with such corporation in interstate commerce. [Yerxa, Andrews & Thurston v. Randazzo Macaroni Mfg. Co., 315 Mo. 927, 288 S. W. 20; Hess Warming & Ventilating Co. v. Burlington Grain Elevator Co., 280 Mo. 163, 217 S. W. 493; Security State Bank v. Simmons, 251 Mo. 2, 157 S. W. 585; International Text-Book Co. v. Gillespie, 229 Mo. 397, 129 S. W. 922; General Excavator Co. v. Emory (Mo. App.), 40 S. W. (2d) 490; J. B. Colt Co. v. Watson, 215 Mo. App. 467, 247 S. W. 493; Gutta Percha Mfg. Co. v. Lehrack, 201 Mo. App. 550, 214. S. W. 285; The J. R. Watkins Medical Co. v. Holloway, 182 Mo. App. 140, 168 S. W. 290; Dinuba Farmers' Union Packing Co. v. J. M. Anderson Grocer Co., 193 Mo. App. 236, 182 S. W. 1036; Rogers v. Union Iron & Foundry Co., 167 Mo. App. 228, 150 S. W. 100; German American Bank v. Smith, 202 Mo. App. 133, 208 S. W. 878; Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1; International Text-Book Co. v. Pigg, 217 U. S. 91; Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282; Lemke v. Farmers' Grain Co., 258 U. S. 50; Furst v. Brewster, 282 U. S. 493; Palmer v. Aeolian Co., 46 Fed. (2d) 746.] Dahnke-Walker Milling Company v. Bondurant, 257 U. S. 282, was an aetion to recover damages for breach of contract for the sale and delivery of a wheat crop estimated at 14,000 bushels. The plaintiff, a Tennessee corporation, operated a flour mill at Union City, in that State. Defendant resided at Hickman, Kentucky, and engaged in farming in that vicinity. Plaintiff and defendant entered into a contract at Hickman, Kentucky, a Kentucky contract, whereby defendant agreed to sell and plaintiff to purchase defendant's wheat at a stipulated price. Delivery was to be made on board the cars of a common carrier at Hickman, Kentucky. Plaintiff intended to ship the wheat to its mill in Tennessee. A small part of the crop was delivered as agreed but delivery of the remainder \\\\yas refused. At the time for delivery wheat had come to be worth several cents per bushel more than the contract price. The action was brought in a state court in Kentucky. A defense was interposed that plaintiff had not complied, as was the fact, with a statute of Kentucky prescribing the conditions on which corporations of other states might do business in that State and that the contract was therefore not enforceable. Plaintiff replied that the transaction was in interstate commerce and therefore the Kentucky statute invoked did not apply. The trial court held that the statute did not apply to the transaction in question and'the plaintiff had verdict and. judgment,, but the Kentucky-Court of Appeals while \\\"conceding the invalidity of the statute as respects transactions in interstate commerce held the transaction was, .not in such commerce\\\" and .therefore the statute.was ap plicable. The ease went, on a writ of error, to the United States Supreme Court. That court declaring the applicable law said:\\n\\\"The commerce clause of the Constitution, . . . expressly commits' to Congress and impliedly withholds from the several states the power to regulate commerce among the latter-. Such commerce is not confined to transportation from- one state to another, but comprehends all commercial intercourse between different states and all the component parts of that intercourse. Where goods in one state are transported into another for purposes of sale the commerce does not end with the transportation, but embraces as well the sale of the goods after they reach their destination and while they are in the original packages. (Cases cited.)\\n\\\"On the same principle, where goods are purchased in one State for -'transportation to another the commerce includes the purchase quite as much as it does the transportation. (Cases cited.)\\n\\\"This has been recognized in many decisions construing the commerce clause.In United States v. E. C. Knight Co., 156 U. S. 1, 13, 'contracts to. buy, sell, or exchange goods to be transported among the several States' were declared 'part of interstate trade or commerce.' And in Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 241, the1 court referred to the prior decisions as establishing that 'interstate commerce consists of intercourse and traffic between the citizens or inhabitants of different states, and includes not only the transportation of persons and property . . . but also the purchase, sale and exchange of commodities.' In no case has the court made any distinction between buying and selling or between buying for transportation to another State and transporting for sale in another 'State. Quite to the contrary, the import of the decisions has been that if the transportation was incidental to buying or selling it was- not material whether it came first or last.\\n\\\"A corporation of one State may go into another, without obtaining the leave or license of the latter, for all the legitimate purposes of such commerce; and any statute of the latter State which obstructs or lays a burden on the exercise of this privilege is void under the commerce clause. [Crutcher v. Kentucky, 141 U. S. 47, 57; Western Union Telegraph Co. v. Kansas, 216 U. S. 1, 27; International Textbook Co. v. Pigg, 217 U. S. 91, 112; Sioux Remedy Co. v. Cope, 235 U. S. 197.]\\\"\\nReferring then to the facts the court said:\\n' ' It had been the practice of the plaintiff to go into Kentucky to purchase grain to be transported to and- used in its mill in Tennessee.. On different occasions it had purchased from defendant. . . . This contract was made in continuance of that practice, the plaintiff intending to forward the grain to its mill- as soon as delivery was made. . . . Applying to these facts the principles before stated we-think the transaction was in. interstate commerce. . The state court, stressing the fact that the contract was made in Kentucky and was to be performed there, put aside the further facts that delivery was to be on board the cars and that the plaintiff in continuance of its prior practice, was purchasing the grain for shipment to its mill in Tennessee. We think the facts so neglected had a material bearing and should have been considered. They showed what otherwise seemed an intrastate transaction was a part of interstate commerce., (Cases cited.)\\\"\\nIn Lemke v. Farmers' Grain Company, 258 U. S. 50, a North Dakota Association in the general and usual course of the business which it carried on bought grain in that state and placed the grain in elevators from which it was loaded on cars and shipped to other states for sale. Even after loading the grain was subject to be diverted and sold within the State if a satisfactory price was offered but local sales were unusual and practically all of such grain was marketed in other states. Citing the case of Dahnke-Walker Milling Co. v. Bondurant, supra, the Federal Supreme Court held that the business, including the buying of the grain, in North Dakota was interstate commerce and that a statute of North Dakota regulating the buying and selling of grain as applied to the facts was a burden upon interstate commerce. In the two foregoing cases, and the cases therein cited, the purchase of commodities in one state for transportation to another state was held to be a transaction in interstate commerce and contracts relating thereto and), directly 'and immediately connected therewith declared to be a \\\"part of interstate trade or commerce.\\\" While in the instant case Gage & Company, did,not purchase defendant's cotton it did in continuance of a long course of dealing between it and plaintiff advance money to plaintiff under the terms of the deed of trust and cotton contract whereby plaintiff agreed to ship not less than a fixed quantity of cotton to defendant at Memphis, Tennessee, to be handled and sold by it at its place-o.f business there, as/ a factor and upon commission. T-he credit was extended to plaintiff in consideration of his agreement to' ship cotton to defendant to be handled by it, at Memphis, in the customary manner. We think there can be no question that the transaction as a whole was interstate trade, business or commerce and that the cotton contract, deed of trust and notes, evidencing and providing for the advancements or credit so extended plaintiff must be considered a \\\"part of\\\" such \\\"interstate trade or commerce.\\\" It will be remembered that Gage & Company, neither bought nor sold any cotton- in this State nor did it exercise or attempt to exercise, in. this State, any function or privilege or do any business disassociated and separate from its interstate business and which could be classed as purely intrastate business. It is true that at no time did- plaintiff sell any cotton to Gage &' Company nor did the company purchase any cotton from plaintiff nevertheless under the facts shown the transactions between the parties constituted and involved commercial intercourse of an interstate character. That a sale is not the test of interstate commerce is definitely stated in Butler Brothers Shoe Co. v. United States Rubber Co., 156 Fed. 1, and reaffirmed by the Federal Supreme Court in cases to which we shall presently refer. In the Butler Bros, case the United States Rubber Company, a manufacturing corporation of the State of New Jersey, entered into a contract with Butler Bros. Company, a corporation of the State of Colorado doing a wholesale business in that state whereby the Butler Bros. Company, was designated and appointed as agent of the rubber company, to sell goods manufactured by the rubber company, in the State of Colorado upon the terms and a commission basis specified in the contracts. Such goods were to' be consigned by the rubber company, to the Butler Bros. Company, upon its orders. Necessarily the goods so ordered would be shipped to the Butler Bros. Company, in Colorado from the factories of the rubber company, in other states. The contract provided that the goods and the proceeds thereof should remain the property of the rubber company, until Butler Bros., paid the rubber company, the agreed price of goods so consigned to it and that a separate bank account covering all transactions in connection with the consignment to and sale by Butler Bros., of such goods should be maintained by it. The contract was made in and was a Colorado contract. In a suit by the rubber company for a balance alleged to be due and for an accounting under the contract the Butler' Bros. Company contended that the contract was void and illegal on the ground that the complainant rubber company, was a foreign corporation and that in making and performing such contract it had engaged in and carried on business in the State of Colorado without a license and in violation of the statutes of that State. It was held that the contract in question was a \\\"contract of factorage.\\\" The court then lays down the proposition, supported by a lengthy citation of authorities (see page 15) that: \\\"Every corporation, empowered to engage in interstate commerce, . . . may carry on interstate commerce in every state in the Union, free of every prohibition and condition imposed by the latter.\\\" The opinion then propounds the query whether the contract \\\"in suit\\\" was a transaction of interstate commerce. It is observed that \\\"the place of their execution (of the contract) is immaterial . . . because the right of the rubber company was as absolute to make and to perform a contract of interstate commerce in Colorado as in New Jersey.\\\" It is then said:\\n\\\"Nor is the fact\\\" that the -contract \\\"did not evidence sales of the goods determinative of this question. A sale is not the test of interstate commerce. All sales of sound articles of-commerce, which necessitate the transportation of' the goods sold from one state -to another, are interstate commerce; but all interstate commerce is not sales of goods. Importation into one state from another is the in dispensable element, the test, of interstate commerce; and every negotiation, contract, trade, and dealing between citizens of different states, which contemplates and causes such importation, whether it be of goods, persons, or information, is a transaction of interstate commerce. 'Since the case of Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23,' said Chief Justice Waite in Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 8, 24 L. Ed. 708, 'it has never been doubted that commercial intercourse is an element of commerce which comes within the regulating power of Congress.' \\\"\\nThe opinion further holds that the contract \\\"constituted and caused commercial intercourse between citizens of different states;\\\" that its \\\"chief purpose and . . . principal effect\\\" was \\\"importation of . . . articles of commerce into the State of Colorado from other states;\\\" that it \\\"necessarily constituted a transaction of interstate commerce; ' ' and that as the contract was a transaction \\\"of interstate commerce, any prohibition or obstruction to the making . . . or to the enforcement\\\" thereof \\\"by the legislation or action of the State of Colorado, was beyond the power of the State and futile.\\\" The conclusion is that: \\\"The transaction . . . was interstate commerce. The rubber company did not agree to do, and did not actually do, any of the business of receiving, storing,; and selling the goods in Colorado. The shoe company did agree to do, and did; do, that business.\\\" Citing numerous cases in support of the proposition it is said in United States v. Tucker, 188 Fed. 741, 743: \\\"Every negotiation, initiatory and intervening act, contract, trade and dealing between citizens of any state, . . . with those of another\\\" state \\\"which contemplates and causes\\\" importation \\\".into one state from another state of goods, persons or information is a transaction of interstate commerce.\\\" International Textbook Co. v. Pigg, 217 U. S. 91, cites and quotes with approval the pronouncement made in Butler Bros. Shoe Co. v. United States Rubber Co., supra, and the Federal Supreme Court says: \\\"In the great case of Gibbons v. Ogden, 9 Wheat. 1, 189, this court speaking by Chief Justice Marshall said, ' Commerce, undoubtedly, is traffic; but it is something more; it is intercourse ' . It is said in the Circuit Court of Appeals for the Eighth Circuit, speaking by Judge Sanborn in Butler Brothers Shoe Co. v. United States Rubber Co., 156 Fed. 1, 17, that 'all interstate commerce is not sales of goods. Importation into one state from another is the indispensable element, the test, of interstate commerce; and every negotiation, contract, trade and dealing between citizens of different states which contemplates and causes such importation, whether it be of goods, persons or information, is a transaction of interstate commerce. ' ' ' This test as laid down in the Butler Bros, case is again quoted, reaffirmed and applied by the Federal Supreme Court in Furst & Thomas v. Brewster, 282 U. S. 493. The plaintiffs, Furst & Thomas, copartners, doing business in Freeport, Illinois, brought that suit in a state court of Arkansas against defendant Brewster, a resident of Warren, Arkansas, \\\"to recover for goods sold and delivered to him pursuant to a contract, the performance of which was alleged to have been guaranteed by\\\" the other defendants. By the terms of the contract the firm of Furst & Thomas \\\"agreed to sell and deliver to Brewster, oh board cars at Freeport, Illinois, or at their option at their nearest branch warehouse, at their current wholesale prices their products . as ordered by him so long as the contract was in force and his account was in satisfactory condition.\\\" Furst & Thomas agreed to give to Brewster free advice as to the best methods of selling the goods to consumers. \\\"Brewster agreed to pay Furst & Thomas the regular wholesale prices, . . . payments to be made weekly according to his cash sales and collections. On the termination of the contract, Brewster was to have the privilege of returning to Furst & Thomas his stock of unsold goods.\\\" The defendants pleaded, that the goods delivered by the plaintiffs to Brewster were manufactured by the Furst-MeNess Company, an Illinois corporation with its place of business in that state; that in making the contract and deliveries of goods thereunder, Furst & Thomas acted as agents of the Furst-McNess Company; that the Furst-McNess Company had failed to comply with the statute of Arkansas pertaining to the doing of business by a foreign corporation in that state and therefore the suit could not be maintained as the statute of Arkansas expressly forbade if. \\\"At the trial the terms of the contract, as above stated, and the transactions under it, were shown. It appeared that Furst & Thomas did business at Freeport, Illinois; that they received at that place orders \\u2022from the defendant Brewster; and that the goods so ordered were shipped to Brewster at Warren, Arkansas, from the branch warehouse of Furst & Thomas at Memphis, Tennessee. The goods thus shipped had been obtained by Furst & Thomas in Illinois from the Furst-McNess Company, an Illinois corporation doing business at Freeport, Illinois. It was admitted that this 'corporation had not been authorized to do business under the laws of Arkansas. Evidence was also introduced for the purpose of showing that Furst & Thomas were agents of the Furst-McNess Company and to support the contention that the transactions between Furst & Thomas and the defendant Brewster under the contract in suit were those of principal and agent.\\n\\\"The evidence was submitted to the jury upon the question of agency. The court refused to give the instruction, which the plaintiffs requested, that the statutes of Arkansas had no application, for the reason that, if applied, they would contravene Article 1, section 8, clause 3, of the Constitution of the United States giving to the Congress power to regulate commerce among the States. The1 jury found in favor of the defendants.\\\" The Supreme Court of Arkansas following its earlier decision in a similar case (Furst & Thomas v. Hartzell, 172 Ark. 1118) affirmed the judgment. It was held \\\"that the determinative question was whether the relationship between the parties was that of vendor and vendee or principal and agent.\\\" In an opinion by Chief Justice Hughes the Federal Supreme Court held that in determining whether the transactions were in interstate commerce it was immaterial whether or not Furst & Thomas were agents of the Furst-McNess Company or Brewster an agent of Furst & Thomas. It is said: \\\"These transactions were clearly in interstate commerce, whether or not Furst & Thomas were agents of the Furst-McNess Company, and whether or not Brewster was an agent of Furst & Thomas. In pursuance of orders sent by Brewster in Arkansas to Furst & Thomas in Illinois, goods were shipped to Arkansas from the branch warehouse of Furst & Thomas in Tennessee. The ordering and shipment of the goods constituted interstate commerce, and the obligation to pay and the right to recover the amount due, according to the contract pursuant to which the goods were sent, arose in the course of that commerce.\\\" The opinion- then quotes with approval the pronouncement, supra, made in Butler Bros. Shoe Co. v. Rubber Co., and adds: \\\"Such commerce comprehends all the component parts of commercial intercourse between different states, and, according to established principle, any state statute which obstructs or lays a direct burden on the exercise of the privilege of engaging in interstate commerce is void under the commerce clause. ' ' (Cases cited.)\\nApplying the principles of law announced in the cases cited and reviewed to the facts of the case before us we must approve and affirm the action of the trial court in overruling plaintiff's contention in that regard and holding the notes and deed of trust to be valid and enforceable.\\nComing now to the accounting side of this suit a question is casually suggested in the briefs as to the authority of the court under the pleadings in this ease to take an accounting between the parties and make a finding thereon, however neither party makes that point and the testimony of both parties is directed to an examination of the account between them from June 22, 1925, to July 1, 1929, and the finding and judgment of the trial court is made as of date of July 1, 1929'. Each appellant challenges the correctness of that finding. Plaintiff claims the trial court erred in not assessing, and allowing him a credit for, damages for losses h\\u00e9 claims to have sustained on account of the alleged failure of the defendant to sell his cotton which defendant had in storage during year 1928 as and when ordered by him to sell same and also in refusing to allow his claim for alleged overcharge on account loss in weights of his cotton sold by it. On the other hand defendant complains that the trial court erred in \\\"charging back against defendant $4309.12 as overcharge of commission. ' '\\nWe shall first consider plaintiff's complaints. The petition states that the \\\"business transactions between plaintiff and defendant . . . have been many and numerous\\\" but that plaintiff \\\"has not kept, nor been able to keep a complete record of all the business transactions between himself and said defendant, W. A. Gage and Company.\\\" Plaintiff testified, that he did not keep \\\"any book or account\\\" of his transactions with the Gage Company; that when he \\\"drew drafts\\\" he \\\"would put the amount on the stub;\\\" that he did not know how much money he had drawn in that manner; that ' ' they were supposed to give me credit for the cotton they sold down there that belonged to me; ' ' that he ' ' did not keep any books or any records of the amount of the drafts I drew or the amount of cotton I shipped or what they got for it;\\\" and that \\\"when I bought cotton I gave a check for it and put on the stub who the bale was bought from and where it was ginned and I had the bills of lading for the cotton I shipped to them; those were the only records I had.\\\" In this situation plaintiff employed W. J. Peck, \\\"public accountant\\\" to make 'an audit, in his behalf, of the account with defendant. In making the audit Mr. Peck says he was supplied by plaintiff with such information, statements and memoranda as plaintiff was able to furnish; that he went to Memphis and checked defendant's books and found \\\"the books to be in good condition;\\\" that Gage & Company, \\\"did not refuse to furnish me with any information\\\" but \\\"gave me the information on every item that I asked for.\\\" The accountant stated that his audit commenced with June 22, 1925, on which date' there was a balance due plaintiff of $4591.17 \\\"and the audit included that amount.\\\" The audit covered the period from that date to and including July 1, 1929. Two separate and distinct accounts were kept. One was referred to throughout the evidence as the open account, the othefi as the purchase account. The plaintiff's audit, made as aforestated, showed that during the period from June 22, 1925 to July 1,- 1929, plaintiff had shipped to Gage & Company and the company acting as a factor had stored, handled at and through its offices and Warehouses at Memphis and sold on commission, in the manner we have heretofore described, 3002 bales of cotton; that by drafts on Gage & Company plaintiff had drawn $258,700; that Gage & Company had paid the insurance, freight, commissions, etc., and charged same against plaintiff and that of July 1, 1929, there was a balance in favor of plaintiff on this account (referred toi as the open account) of $8438.97 against which the auditor or accountant charged interest on the two notes involved to date of July 1, 1929, in the amount of $1763.30, leaving a credit balance in that account of $6675.63 in plaintiff's favor. The purchase account covered transactions in a distinctly different course of dealing. That account was a record of cotton purchased between December 9, 1927, and September 1, 1928, by Gage & Company, at Memphis, for and at the request of plaintiff and .to his account, stored in its warehouses at Memphis and resold by it as and when ordered by plaintiff. The usual and customary expenses occurring in the handling off this cotton were charged to plaintiff. The account shows 548 bales of cotton handled in this manner. For that cotton Gage & Company buying at plaintiff's direction paid $56,886.14, and by selling in amounts and at the times ordered by', him there was a gross profit of $1023.15 but the! expenses charged, storage, insurance, commission, etc., aggregated $5,217.59, which left a balance due Gage & Company in the purchase account of $4,194.44. The audit then shows the difference between the two accounts to make a balance of $2481.19 in plaintiff's favor. This credited upon the principal sum of the notes, $18,000, reduced the amount due thereon as of July 1, 1929, to $15,518.81. By reference to the finding and judgment of the trial court it will be seen that the court found the amounts shown by the audit, and so arrived at, to be \\\"true and correct'' except only as to the charge for commission which the court found to be excessive and unreasonable and of that later.\\nAs to plaintiff's contention that in refusing his claim for damages which he alleges he sustained by reason of the failure of Gage & Company, in 1928, to sell his cotton, then in storage, when directed by him= to do so, the court's finding was against the weight of the evidence we think a reading of the evidence set out in this record bearing upon that matter, leaving out of consideration the trial court's opportunity to judge of the .credibility of the witnesses, requires us to sustain the finding of the trial court thereon. The plaintiff's testimony in support of this claim is vague, indefinite and uncorroborated and is refuted by his own letters written to Gage & Company during the time to which, his testimony refers. The substance and tenor of these letters is that his cotton not be sold at that time, the expression of a belief that cotton prices would advance, requesting that his cotton be held and that the company buy and hold cotton for him to replace 'small quantities of his cotton which it had sold.\\nNor is the evidence offered by plaintiff to sustain his claim of overcharge by defendant on account of loss in weights such as to require or justify us to set aside the finding of the trial chancellor on that issue as being against the weight of the evidence. The plaintiff was unable to produce a complete or accurate record of his weights on the cotton shipped to defendant. A complete and original record of the weight of each bale of cotton shipped by plaintiff to Gage & Company during the period to which plaintiff's audit and the accounting made by the court was confined, at the time same was received at its warehouses by the company and a like record of the weight at the time the cotton was sold w\\u00e1s off\\u00e9red in evidence by the-defendant. These same records were supplied plaintiff's accountant who examined and checked same in the course of the audit which he made. The' evidence was that Gage & Company was a member of the Memphis Cotton Exchange and operated- under- the rules of that organization; that the Gage & Company scales were duly tested and approved as to accuracy and all cotton as received or sold was weighed by ' ' licensed and bonded weighers.\\\" Much of plaintiff's cotton was held in storage in defendant's warehouse for a year and some more than a year before he ordered it sold. There is no evidence tending to show that it was not properly stored or that defendant did not exercise du\\u00a1e care in protecting and handling same; nor is there any evidence that defendant's scales were not'accurate or in proper condition. Both plaintiff's and defendant's evidence was to the effect that cotton in storage would lose weight. Plaintiff's evidence was that \\\"after a bale of cotton is put in the compress it loses weight; in sixty days to six months the loss will be about six pounds per bale\\\" and \\\"after being kept there for a year or above six months the further loss of weight will not be over two pounds. ' ' The average loss in weight on plaintiff's cotton as shown by the difference in weights when receiv\\u00e9d and when sold was but 2.62 pounds per bale. Gage & Company sent -plaintiff a fully itemized report covering each shipment or sale of cotton. The report showed the number of bales of cotton, the weight and markings of each bale and printed thereon was a notation : \\\"We call your attention to weights shown in the weight column. We suggest that you compare weights and advise us of any discrepancies.\\\" Plaintiff on a few occasions wrote Gage & Company complaining about the weights so reported. At such times the company either by letter or telephone requested plaintiff to come to Memphis, at its expense, and \\\"see the cotton weighed\\\" but plaintiff did not do so, however \\\"on one or two\\\" such occasions plaintiff's cousin who resided in Memphis went, at plaintiff's request, to defendant's warehouse, saw the cotton weighed \\\"and expressed himself as being satisfied\\\" with the correctness of the weights. We deem it unnecessary to further set out or review the evidence relating to weights and think it suffices to say that on that issue the weight of the evidence is clearly with the defendant as the trial court found.\\nWe come now to a consideration of 'defendant's assignments. The court found the commission charged by Gage & Company \\\"to be excessive and unreasonable;'.' that the company \\\"was entitled to charge plaintiff a reasonable- sum for commission\\\" and that \\\"$1.00 per bale\\\" was a reasonable commission. As a total of 3550 bales of plaintiff's cotton where handled by defendant during the period covered by the accounting (3002 through the open account and 548 through-the purchase account) the commission allowed by the court was fixed at $3550. The total commission charge shown by Gage & Company boobs and the audit made by plaintiff's accountants was $7859.12. The commission rate, i. e., two and one-half per cent, charged against plaintiff by Gage & Company was that which it uniformly and regularly charged) all customers on transactions of the bind had with plaintiff. For more than ten years of continuous dealing plaintiff had been uniformly charged the same rate of commission. A written report of each sale however small was made to plaintiff. This report showed the rate, and amount of commission charged. Statements of the account were, from time to time, sent plaintiff over the period of years which marbed their dealing showing the commission charged. At no time did plaintiff ever object to the rate charged. Nor is any claim made by plaintiff in his petition that the rate of commission charged was unreasonable- or excessive or not the usual and customary rate charged in such transactions at Memphis. In all the years of dealing between them plaintiff acquiesced without any complaint or objection in the rate charged. There seems to have never been any specific agreement about th\\u00e9 rate of commission but their dealing clearly was on the basis of the usual and customary rate charged in libe transactions in Memphis. Gage & Company had been in business sixty-five years. , The evidence is that continuously for more than twenty years next preceding this trial' the rate of commission charged plaintiff had been the fixed, usual, customary and regular commission charged in transactions such a,g those had with plaintiff. Further all the testimony as to transactions of the bind had between plaintiff and defendant was that the per centage charged was the usual and cutomary factorage commission at the Memphis marbet, nor was there any testimony on the part of plaintiff to the contrary. The evidence shows that cotton factors at Memphis sell cotton in two ways. (1) Where the owner ships the cotton to the' factor who receipts therefor and stores it in warehouses, protects and cares for same, pays the insurance and 'freight thereon, collects the freight rebates, selects samples and exhibits same in salesrooms, submits offers to the owner, holds the cotton, financing same in the meantime, subject to sale at the owners' orders and beeps records and accounts on all transactions in connection with handling same. The cotton is oftimes, as in this instance, held in storage for a year and more. This was the method of dealing between plaintiff and defendant. While 548 bales of its cotton involved in the accounting were not actually shipped by plaintiff to defendant yet as to that cotton, which is as heretofore mentioned covered by the purchase account, defendant at plaintiff's request bought cotton at Memphis in that amount for plaintiff's account, advancing th\\u00e9 purchase money, toob same into and stored and held it in its warehouses as plaintiff's cotton, paying insurance and other expenses thereon, exhibited samples thereof in its salesroom and held same over a long period'of time subject to, and sold'same only at, plaintiff's order. It appears that the commission on cotton so handled comes within the same rate as that charged on cotton shipped by the owner direct- to the factor. The testimony is all one way that the .usual, customary -and uniform charge made by cotton commission merchants or factors at Memphis, .including Gage & Company, for handling cotton in the manner above outlined, and as all of plaintiff's \\u2022cotton was handled, is two and one-half per cent, the commission charged plaintiff. (2) The other method by which cotton factors at Memphis sold cotton is referred to in the evidence as the F. O. B. method. The owner does not ship, the cotton to the factor. The cotton is held by the owner at the local compress or warehouse and he merely sends the factor a sample which the commission merchant exhibits in the salesroom. If an offer is made the factor immediately communicates the offer by telephone or. telegraph to the owner. . If the offer is satisfactory the owner -accepts and forwards the warehouse-receipts to the factor who delivers same to the buyer in Memphis and the deal is thereby consummated. According to the evidence the usual and customary commission for such sals is $1 a bale. It is -true that some of the witnesses for plaintiff testified that the usual factorage commission at Memphis was $3i per bale, but in each instance. it developed that the witness referred to cotton sold by the .latter method. Apparently the trial chancellor overlooked the distinction. The writer -is unable to find any testimony which accorded .the construction most favorable to plaintiff is of a quality and substance sufficient to sustain plaintiff's contention in this respect and .overcome the great weight of the evidence showing that defendant .charged, plaintiff only -the usual and ordinary commission for the services rendered by it as a factor in handling his cotton. It does not appear to be a matter of the weight of the evidence on this issue \\u2022as between the parties, but rather a lack of any substantial evidence in the record to support the .action of the trial chancellor in reducing the rate of the commission. In this situation, since the correctness of the amount of the commission charges is. in nowise challenged if the rate charged be found, proper, the judgment should be corrected so as to allow defendant the amount due it as shown by its books and records and the audit made by plaintiff's accountant; so that judg.ment be for defendant Gage & Company for the balance thereby shown to be due on said notes, as of July 1, 1929, in the amount of $15,518.81.\\nDefendant also assigns as error the failure and refusal of the trial court to allow it an attorney's fee as provided for by the terms of the notes involved. It will be remembered that plaintiff took the position first that the notes and deed of trust were absolutely void and unenforceable and second that if same were held to be valid that he was entitled to an offset or credit upon the notes for damages on the grounds heretofore discussed. These claims for damages were ruled against plaintiff by the trial chancellor and we have held that the reduction or credit which the trial chancellor did allow was not, under the evidence, properly made. The proper judgment on the notes, as we view the matter and as we have directed, is in the exact amount claimed by defendant as of the 1st day of July, 1929. The plaintiff not only denied the validity of the notes but also that any amount was due and owing to defendant thereon if same were valid. By this suit defendant was compelled to meet these issues, sustain the validity of the notes and enforce same by resisting plaintiff's various claims for credits or offsets and establish its right to recover thereon. To do so defendant necessarily was required to employ attorneys to represent it. Each of the notes provide: \\\"If this note is not paid at maturity and is placed with an attorney for collection, . . . I agree to pay all costs incurred by the holder in collecting or enforcing the same including a fee of ten per cent on amount due for attorney's fee.\\\" We think the necessity of employment of attorneys by defendant to defend this action, maintain the validity of the notes, resist plaintiff's claims as to offsets and credits to which he alleged he was entitled and enforce the obligation of plaintiff thereon comes within the contemplation and meaning of terms above quoted. Plaintiff does not plead nor at any stage of the proceedings does he advance the claim that ten per cent \\\"on amount due\\\" is an unreasonable or excessive attorney's fee. The writer does not find this matter discussed in plaintiff's brief. Seemingly he acquiesces in the proposition that if defendant is entitled to recover on the notes it would be entitled to an attorney's fee of ten per cent of the amount found to be due. The judgment should therefore be further amended so as to assess an attorney's fee in favor of defendant of ten per cent of the amount due, as aforesaid, on said notes as of July 1, 1929.\\nThe judgment is reversed and the cause remanded with directions to the trial court to amend and enter same in conformity with this opinion.\\nSturgis and Hyde, GC., concur.\\nPER CURIAM:\\nThe foregoina' ouinion by Ferguson, C., is adopted as the opinion of the court.\\nAll the judges concur, except Hays, J., absent.\"}"
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+"{\"id\": \"8736326\", \"name\": \"Lieurena Mendenhall and Jennie M. Chamberlain v. Salem Pearce and Lettie Pearce, Appellants\", \"name_abbreviation\": \"Mendenhall v. Pearce\", \"decision_date\": \"1929-09-13\", \"docket_number\": \"\", \"first_page\": \"964\", \"last_page\": \"977\", \"citations\": \"323 Mo. 964\", \"volume\": \"323\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T02:25:28.207700+00:00\", \"provenance\": \"CAP\", \"judges\": \"Seddon, C., concurs; Ellison, C., not sitting, having been of counsel.\", \"parties\": \"Lieurena Mendenhall and Jennie M. Chamberlain v. Salem Pearce and Lettie Pearce, Appellants.\", \"head_matter\": \"Lieurena Mendenhall and Jennie M. Chamberlain v. Salem Pearce and Lettie Pearce, Appellants.\\n20 S. W. (2d) 670.\\nDivision One,\\nSeptember 13, 1929.\\nCook & Cummins for appellants.\\nA. F. Harvey and Shinabargar, Blagg <& Livengood for respondents.\", \"word_count\": \"4835\", \"char_count\": \"26900\", \"text\": \"LINDSAY, C.\\nThis is a suit to determine title to eighty acres of land in Nodaway County, as between the respondents, plaintiffs, and the defendants, appellants herein. The parties to both sides of the controversy claim title under Laura Pearce, deceased, who was a sister of the two plaintiffs, and of defendant Salem Pearce. Lettie Pearce is the wife of Salem Pearce. Plaintiffs claim title under the residuary clause of the will of Laura Pearce, and Salem Pearce claims title under a deed executed by Laura Pearce to him several years before her death or the execution of said will, which said deed was deposited by Laura Pearce with the 'Barnard State Bank of Barnard, Missouri, under a written instruction that said deed should be retained by the bank in its possession until the death of Laura Pearce, and upon her death be delivered to the grantee.\\nThe petition is in conventional form, alleging that Salem Pearce claimed title to the said eighty acres of land, and that Lettie Pearce claimed an interest therein by virtue of her marital rights, and asked that the rights of the parties be determined and adjudged, and a decree be made barring the defendants from claiming or setting up title or claim to said real estate. The answer claimed title in defendants and asked determination of title in their favor.\\nThe evidence was that Laura Pearce became the owner of the eighty acres in controversy about the year 3914, by a deed from her father Peter Pearce, now deceased, and that each of her two sisters, the plaintiffs herein, who were then single women, became the owner of eighty acres of land by deed from Peter Pearce. The three sisters also in the same way became the owners of certain real estate in the town of Barnard, which was held by them as tenants in common. The three sisters from the time they became the owners of said properties, had a common bank account and rented the lands given them by their father, using the proceeds for their common benefit up until a time two or three years before the death of Laura Pearce. The two sisters of Laura Pearce,' Lieurena and Jennie M. Pearce, were married two or three years prior to the death of Laura Pearce.\\nThe deed under which defendant Salem Pearce claims title to the eighty acres in controversy was a warranty deed in common form with covenants of warranty dated the 28th day of March, 1916, and executed by Laura Pearce to Salem Pearce, as grantee, for the recited consideration of the sum of one dollar and love and affection. The deed was acknowledged on the 13th day of July, 3916. On the last-named date Laura Pearce also executed a warranty deed conveying the real estate in the town of Barnard to her two sisters, Lieurena Pearce and Jennie M. Pearce, the plaintiffs herein. These deeds were drawn by John A. Fields, the cashier of the Barnard State Bank, who, as notary, took the acknowledgment of Laura Pearce to said deeds. On that date, July 13, 1916, Laura Pearce also signed and delivered the following certificate of instruction in writing concerning the execution, purpose and delivery of said deeds.\\n\\\"Barnard, Mo. July 13, 1916.\\n\\\"This certifies that I have this day executed and placed for safe keeping in the Barnard State Bank of Barnard, Mo., two warranty deeds one dated March 28th, 1916, to Salem Pearce, the other dated this day to Jennie and Lieurena Pearce and it is my wish, and I hereby authorize and instruct the said Barnard State Bank, to retain possession of said deeds until my death, and when this occurs to deliver said deeds to the parties therein named.\\n\\\"In witness whereof I have hereunto set my hand the day and year first above written.\\nHER\\n\\\"Laura, x Pearce\\nMARK\\n\\\"Witnesses\\nJennie Pearce\\nMrs. T. A. Humbred\\nJohn A. Fields.\\\"\\nThe two warranty deeds mentioned in said certificate, with the certificate, were deposited with the Barnard State Bank at the time, and there remained until some three or four weeks after the death of Laura Pearce, which occurred on the' 4th day of January. 1925. The warranty deed to Salem Pearce was then delivered to him. The deed to the plaintiffs to the property in the town of Barnard was not delivered. They did not accept the deed, but claimed under the will.\\nOn the 7th day of June, 1923, Laura Pearce executed her last will and testament, which after her death was duly admitted to probate. By the second clause of said will, she gave all of her personal property to her sister, the plaintiff Lieurena P. Mendenhall. By the third clause of the will she gave to her said sister, Lieurena P. Mendenhall, all of her right, title and interest in the real estate situated in Barnard. By the fourth clause of her will she g'ave all the rest, residue and remainder of her property to her sisters, Jennie M. P. Chamberlain and Lieurena P. Mendenhall, share and share alike, and for their separate use, and clear of any statutory or common-law rights of their present husbands or any husbands either of them might thereafter have.\\nThe court found the issues in favor of the plaintiffs, making the finding in the decree that Laura Pearce, at the time the deed to Salem Pearce was placed in the custody of the Barnard State Bank with written directions, did not intend at that time to part with the title to said lands and pass the title to defendant Salem Pearce; that there was no delivery of said deed during the life of Laura Pearce; that there was no consideration for said deed; and on account thereof, said deed was insufficient to pass to or vest in defendant Salem Pearce, any title or interest in said land, and that the plaintiffs were vested with the absolute title thereto as sole owners, under the will of Laura Pearce. The sole question in the case is whether, under the written instructions given and the other circumstances shown, there was a delivery of the deed of Laura Pearce to Salem Pearce, which operated to' pass the title as of the. date when said deed was deposited with the Barnard State Bank.\\nThe action is a straight action brought in the terms of the statute, and neither under the pleadings nor the evidence is there presented any issue of equitable cognizance. It is therefore an action at law. [Koehler v. Rowland, 275 Mo. 573; Minor v. Burton, 228 Mo. 558; Lee v. Conran, 213 Mo. 404; Jacobs v. Waldron, 317 Mo. 1133.]\\nThe cause was submitted to the court and no declarations of law were asked or given. There is no error assigned on appeal in the admission or rejection of testimony. Indeed the brief contains no assignments of errors, except as developed under the head of \\\"points and authorities.\\\" The points stated and the authorities cited go to the questions whether, under the evidence, there was an unconditional delivery of the deed, an intention on the part of the. grantor to part with dominion over the deed to the land in suit. We shall treat the brief in the respect mentioned as raising the question whether there was error in the finding of the trial court, that the deed was testamentary in character, that there was no intention on the part of Laura Pearce at the time, to pass title to defendant, nor delivery of the deed during her lifetime, within the meaning of the law, so as to make the same operative. Being an action at law, submitted to the court without declarations of law asked or given, the question is whether the finding of the trial court is supported by substantial evidence. The determination of the actual issue turns upon the intention of Laura Pearce, on July 13, 1916, when the deeds were acknowledged and deposited with the Barnard State Bank. There is no dispute here as to the execution of the deeds, or their manual delivery to the Barnard State Bank, nor serious dispute as to the execution or signing by Laura Pearce of the instructions heretofore set out. There was no delivery within the meaning of the law, operating to pass title, unless the grantor, at the time, intended to divest herself of title and of control over the deed, and delivered it without right of rc-eall. If such was her intention, then, the delivery was complete; otherwise it was not. Such is the rule announced by all the-authorities, and the citations apply to cases wherein the delivery was made to a third party. [18 C. J. 203, 204; 8 R. C. L. 995-997; Crites v. Crites, 225 S. W. 990; Peterman v. Crowley, 226 S. W. 944; Meredith v. Meredith, 287 Mo. 250; Tillman v. Carthage, 297 Mo. 74; Van Huff v. Wagner, 315 Mo. 917.] In cases such as the case at bar ascertainment of the intention of the grantor is the essential thing.\\nIt is necessary to go somewhat farther in the statement of what the testimony tended to show. It is shown that Laura Pearce remained in full control of the land in controversy until her death. About one year and a half before her death, the dwelling house on the prop erty burned, and she collected $600 insurance tbercon and borrowed $1,000 securing the payment of the same by mortgage on the land; and out of the money so obtained, she rebuilt the dwelling house. Mr. Fields testified that he did not inform Salem Pearce of the mating of the deeds. George W. Cole was cashier of the bank at the time Laura Pearce died. He gave the parties notice of the papers held by the bank. His testimony suggests, but does not make it clear, that Salem Pearce already knew of the making of the deeds.\\nThere is no evidence that Laura Pearce, at any time, sought a return of the deeds delivered to the 'Barnard Bank. Mr. Fields, the cashier of the bank, who prepared the deeds and certificate, testified that sometime prior to March 28, 1916, Laura Pearce told him of what she wanted to do, and asked him to prepare the papers. His testimony was that he was busy at the time, and did not immediately prepare them, but finally did so, and took them to the home of Laura Pearce. His testimony is to the effect that she could not sign her name legibly; that she attempted to sign it, and he did not regard it as legible, or a sufficient signature to the deeds and the certificate, and he wrote her name, she placing her mark upon the papers, and he and two other persons signed as witnesses to the execution of the deeds and the written instructions. The two persons signing these instruments as witnesses, in addition to Mr. Fields, were plaintiff Jennie M. Chamberlain, then Jennie M. Pearce, and a Mrs. Hum-bred, a lady living near the residence of Laura Pearce, and called in for that purpose. Mrs. Humbred, in her testimony, said that upon the occasion when these instruments were signed, she heard Laura Pearce say nothing of the purpose of the instruments, but that if she remembered right, Mr. Fields said in effect that the purpose was that if anything should happen to Miss Laura, if she should die while she was away, everything would go to her sisters. Miss Lieurena and Miss Jennie; that she understood that Laura Pearce was not in good health and was about to go to Colorado for a short time on that account.\\nThe plaintiff Jennie M. Chamberlain also testified concerning what was said and done at the time she signed the papers mentioned, as a witness. She testified on her direct examination:\\n\\\"Did you know what you were witnessing at the time? A. I did not. I did not know what I was signing my name to. He never said what it was, nor one thing, only it was a little article to answer while Laura was gone west, and he says, 'Mass Laura is in poor health and she requested me to make these, and it is only a little temporary thing to last while she is west for fear there might be something happen to her,' and she wanted Eena and I to have what she had, her property.\\n\\\"Q. And that is all yon knew of the instruments you were witnessing? A. Yes, it was, and I didn't know what I was signing.\\\"\\nOn cross-examination she testified:\\n\\\"Q. Just one thought, Mrs. Chamberlain, you understood that you were witnessing the signature of your sister to some papers? A. Yes, sir, I knew it was something, but I didn't know what it was.\\n\\\"Q. And you saw your sister making her mark on it? A. No, sir, I didn't see her sign the paper at all; she never arose from her chair.\\n\\\"Q. Well, why did you sign something reciting that you did see her ? A. Mr. Fields had her to sign it.\\n\\\"Q. Well, I say you saw her sign it? A. I didn't see her sign it.\\n\\\"Q. Well, why did you sign anything then that recites that she did? A. Well, will you give me the privilege of asking why he came in the house and didn't tell us?\\n\\\"Q. No, I am just asking you why you signed the paper that you didn't know? A. I positively didn't want to sign it, and they wanted me to sign.\\n\\\"Q. Who requested you to sign it? A. Laura wanted me to \\u2022 sign it; she says, 'Jennie, it absolutely means nothing only while I am west that if I die you girls have what I have. '\\n' ' Q. She told you it was something prepared there that if she died you girls would get the property? A. Yes, sir.\\\"\\nThe witness Fields was called in rebuttal of the testimony of plaintiff Jennie M. Chamberlain and of Mrs. Humbred, that he stated at the time the papers were signed and witnessed, the deeds being so made were only of a temporary character. He testified that no such conversation occurred. It may be added in connection with the statement of the character of the testimony of Mrs. Humbred that she professed to have only a \\\"faint idea\\\" of what was said, her statement in one place being: \\\"It just seemed that he mentioned that it would be only a temporary affair, only the length of time she would be gbne, is the way it happened, is the way I understood it.\\\"\\nThe plaintiff Mrs. Lieurena Mendenhall testified to some conversation which she said she heard between her brother Salem Pearce, and her sister Laura Pearce, and which, as she testified, occurred about two years before the trial. Her testimony was to the effect that two years before, when Salem Pearce appears to have been staying in Barnard for a time, during the winter, she heard her sister Laura say to Salem and to Salem's wife that she (Laura) \\\"didn't expect him to have a cent she had.\\\"\\nA Mrs. Akrom, who lived next door to Laura Pearce, testified that several times she heard Laura Pearce speak of her property, and say that she \\\"wanted her property to go to the girls; that her father fixed it that way, and gave them their deeds, and it was supposed to be kept amongst them.\\\" This witness fixed the time of these statements on the part of Lanra Pearce as \\\"within the last two years.\\\"\\nL. ~W. Mendenhall, husband of plaintiff Lienrena Mendenhall, also testified, that he heard a conversation \\u2014 \\\"a little argument\\\" \\u2014 between Laura Pearce and her brother Salem Pearce about Laura giving money to the church, in which \\\"just one thing led to another, and Laura got out of fix and told him that he needn't think he could stay around there all winter, and that he had went out west and spent everything he had, and that he needn't think he could stay around there all winter, and get what she had, because she never expected him to have a cent of it.\\\"\\nSalem Pearce was a non-resident of Missouri at the time of the suit, and as the testimony shows, was living in Colorado at the time the deeds were made and thereafter, except as far as appears from the testimony to the effect that, one winter, he was staying at Barnard in Nodaway County.\\nL. W. Mendenhall, husband of Lieurena, asked if Salem Pearce ever put any repairs on the eighty-acre tract in controversy, said that in the winter two years before (the trial) he, the witness, was building a new hen house and Salem Pearce came and helped him work on it one day.\\nIn eases of this character involving the question of intention, at a given time, in respect to the delivery of a deed, it has been said that there will be considered what was said and done at and before the time, and sometimes, what was said and done afterward. Thus, in Cook v. Newby, 213 Mo. 489, it was said:\\n\\\"A deed speaks only by delivery, and what constitutes delivery is frequently a close question. It is a question of intent \\u2014 a mixed question of law and fact. The intent of the parties may be got at by what happened before and at the time and, it has been said, it may be that what happens afterwards is of value.\\\"\\nThe foregoing excerpt was quoted with approval in Crites v. Crites, 225 S. W. l. c. 992, a ease involving the question of delivery of a deed to a third person. See also Saltzseider v. Saltzseider, 114 N. E. (N. Y. Court of Appeals) l. c. 859. In this case, and as to what happened afterward,.it was shown that the grantor remained in possession and control of the land in controversy during her lifetime; also, there is the testir\\u00a7jgny heretofore referred to, that in the period of two years next before the trial or, within about that period before the death of Laura Pearce, she made statements to the effect that she did not intend that Salem Pearce should get any of the property she had. These statements were made at a time, six or seven years, after the execution and deposit of the deeds, and while they remained, as they continued to remain, in the custody of the bank without any effort to recall them.\\nThe otlier subsequent act to which reference may be made, is the execution of the will, and its terms heretofore mentioned, whereby, the testatrix gave all of her personal property to her sister, the plaintiff Lieurena Mendenhall, and by the third clause gave to Lieurena Mendenhall all of the title and interest of the testatrix in the real estate \\u2014 the home place \\u2014 situated in the town of Barnard. As to this clause it is to be observed, that the description of the property devised is by metes and bounds, and reference to lot and block numbers in the town of Barnard. This was the property included in the deed made in 1916, in favor of both the sisters, and deposited with the bank. The fourth clause of the will, as heretofore stated, was the residuary clause, a devise to the two sisters, which made no reference to what property was included therein.\\nThe attorney who drew the will of Laura Pearce was called as a witness, and testified that when she came to him to prepare the will, she had deeds and papers with her, and had a deed containing the description of the property situated in the town of Barnard; that she had also other papers, which he did not see, but, that she told Mm she wanted to leave the eighty acres to her sisters, and inquired if it was necessary to give a particular description of that property, and he advised her that it was not necessary.\\nAs we view this ease its proper determination upon appeal must be larg'ely controlled by the-terms of the written instructions given at the time the deeds were delivered to the Barnard State Bank. The written instructions were the only instructions given. The grantor did not commit expression of her intention to the uncertain recollection of witnesses, hearers of an oral statement, but she gave expression of her intention by her written instrument, which, by relation and reference to the deeds, partook of the solemn nature of the deeds themselves; and, she did not commit the custody of the deeds and the instructions to an individual, but to the bank. There is no evidence ivhatever that any instruction was given by Laura Pearce concerning- the deeds, except this writing. Mrs. Iiumbred, vaguely, and Mrs. Chamberlain more positively, testified to a statement made by Fields, the scrivener, at or immediately after the time they signed these instruments as witnesses, that it was a temporary matter. But, Mrs. Iiumbred testified that she did not remember heai-ing Laura Pearce herself say anything on that occasion. Mrs. Chamberlain testified it was Laura Pearce herself, who asked her to sign as a witness, and that Laura said: \\\"Jennie it absolutely means nothing only while I am west that if I die you girls have what I have. ' Fields denied positively that anything was then said by him as to the temporary character and purpose of the transaction, and neither Mrs. Iiumbred nor Mrs. Chamberlain testified that Laura Pearce made any reply to the oral statement attributed by them to Fields. The question becomes one of construction of tbe writing, because we cannot regard as material, or as evidence of a substantial character, the testimony of Mrs. Iiumbred and Mrs. Chamberlain to an oral statement by Fields contrary in effect to the terms of the written instruments, or the testimony of Mrs. Chamberlain as to what Laura Pearce said, also contrary to the written instruments. The testimony was given more than nine years after the instruments were signed. There was no charge nor attempt to prove that Laura Pearce could not read, or that she did not understand what she was signing, or that she was induced to execute these instruments believing they were different from what they actually were. Under the circumstances the construction of this writing becomes a question of law. In 8 Ruling Case Law, page 997, Section 61, dealing with the very subject at hand, and as to the directions given, it was said that \\\"when the only instructions are in writing the effect of the transaction depends on the construction of the writing and becomes a pure question of law, upon which anything said by the grantor to third persons expressive of his intentions and wishes is immaterial.\\\"\\nTaking up the terms of the writing, the first expression is that the deeds were deposited with the bank for safe-keeping, followed by the statement that \\\"it is my wish, and I hereby authorize and instruct the said Barnard State 'Bank to retain possession of said deeds until my death.\\\" Clearly, by the terms used the grantor intended it to be understood that it was her purpose to retain the possession and enjoyment of the property during her lifetime. To that end, she wished, authorized and instructed the bank to retain possession of the deeds until her death. . She meant that the bank was to retain possession of the deed to Salem Pearce, as against him, during her lifetime, and also retain possession as against herself during her lifetime, so as to effectuate the wish, authority and instruction that when her death occurred, the deed should be delivered to the grantee therein. By this instruction Laura Pearce did not constitute the bank an agent, merely, for the safe-keeping of the deed for her own benefit; but, in authorizing and instructing the bank to retain possession of the deed until her death, and then to deliver it to the grantee named therein, she constituted the bank a trustee as respects the deed for the grantee named.\\nThe ease at bar, in certain essential respects, is much like the case of Meredith v. Meredith, 287 Mo. 250. In that ease the grantee in the deed, delivered to a bank, was the wife of the grantor. The grantor deposited the deed with written instructions that the deed was \\\"to be held in trust and for safe-keeping until my death, then said bank is to deliver said deed\\\" to the wife of the grantor. In the opinion it is said that the grantor, after such deposit, never had the deed in his possession, nor attempted to secure possession of it, nor made any inquiries concerning it after he delivered it to the cashier. There was, however, in that case some oral testimony to the effect that the grantor, after the deed was deposited with the bank, made some statements or declarations that he had deeded everything he had to his wife, and at his death he wanted her to have it. The written instructions in this case do not, in set terms, declare that the deed was to be held in trust. It is not essential, however, to the creation of a trust that the specific word ' ' trust ' ' should be used. In the instant case the deed to Salem Pearce is absolute on its face. No life estate in the grantor is reserved. The bank is instructed and authorized to retain possession of it until the death of the grantor. The holding by the bank until that event, certain to occur, was for the benefit of the grantor as retaining the use and benefit of the land during her lifetime, and it was equally for the benefit of the grantee upon the occurrence of the grantor's death, when its delivery was directed to be made to the grantee. Under our view the bank, in accepting the deed under the written conditions which accompanied it, became not an agent, but a trustee of an express trust, and as such was charged with the performance of a defined duty to the grantor, and a defined duty to the grantee. There is an extensive review of the cases in the annotation to be seen in 52 American Law Reports 1222.\\nIn Meredith v. Meredith, 287 Mo. l. c. 225, it was said:\\n\\\"A delivery to a third party to be held by him and delivered to the grantee upon the grantor's death will operate as a valid delivery when there is no reservation in the deed nor any right of control over the instrument retained by the grantor. The deed, by his own act, having passed beyond his control, accompanied by the declaration that it was delivered for the use and benefit of the grantee, has the same effect in the hands of the custodian as if it had been manually delivered by the grantor to the grantee. [Schooler v. Schooler, 258 Mo. 83; Terry v. Glover, 235 Mo. 544; Seibel v. Higham, supra; White v. Pollock, 117 Mo. 467; 18 C. J. p. 208, sec. 114; 2 Jones, Real Prop. (1896) p. 220; Cannon v. Cannon, 26 N. J. Eq. 316.]\\n\\\"The deed at bar, unconditional in its terms and beyond the control of the grantor upon its delivery to the bank, although not conferring an immediate right of present possession, constituted such an investiture of title as to give the grantee a present fixed right of future enjoyment, although the use of the premises was retained by the grantor during his life. [O'Day v. Meadows, 194 Mo. 588; Headington v. Woodward, 214 S. W. 963.]\\n\\\"The manual delivery of the deed to the grantee by the depositary upon the death of the grantor and its acceptance by the grantee, leaves no room for controversy concerning this fact. The time of the acceptance will not affect the validity of the transfer. [Burkey v. Burkey, 175 S. W. l. c. 624.] Acceptance after the death of the grantor dates back to the time of the delivery of the deed to the bank and renders it a transfer as of that date. [Williams v. Latham, 113 Mo. 165; Sneathen v. Sneathen, 104 Mo. l. c. 209.]\\\"\\nThe foregoing is applicable to the facts and the situation of the parties, in the ease at bar. Under the conclusions we have reached, the judgment is reversed and the cause remanded with directions to enter judgment for the defendants.\\nSeddon, C., concurs; Ellison, C., not sitting, having been of counsel.\\nPER CURIAM:\\nThe foregoing opinion by Lindsay, 0., is adopted as the opinion of the court.\\nAll of the judges concur.\"}"
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+"{\"id\": \"8737018\", \"name\": \"Theresa R. Davis, Administratrix of Estate of Simon D. Rossi, Appellant, v. Victor D. Rossi and Mae R. Haseman\", \"name_abbreviation\": \"Davis v. Rossi\", \"decision_date\": \"1930-12-20\", \"docket_number\": \"\", \"first_page\": \"911\", \"last_page\": \"946\", \"citations\": \"326 Mo. 911\", \"volume\": \"326\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:05:27.683476+00:00\", \"provenance\": \"CAP\", \"judges\": \"Davis and Cooley, CC., concur.\", \"parties\": \"Theresa R. Davis, Administratrix of Estate of Simon D. Rossi, Appellant, v. Victor D. Rossi and Mae R. Haseman.\", \"head_matter\": \"Theresa R. Davis, Administratrix of Estate of Simon D. Rossi, Appellant, v. Victor D. Rossi and Mae R. Haseman.\\n34 S. W. (2d) 8.\\nDivision Two,\\nDecember 20, 1930.\\nRandolph Laughlin for appellant.\\nLublce & Lubhe and Foristel, Mudd, Blair & Habenicht for re- \\u2022 spondents.\\nNOTE: Opinion filed October 13, 1930: Motion for rehearing filed; motion overruled December 20, 1930.\", \"word_count\": \"12718\", \"char_count\": \"71829\", \"text\": \"HENWOOD, C.\\nSimon D. Rossi died, intestate, December 6, 1925, and was survived by his wife, ten children, and a grandson, the only child of a deceased daughter. This controversy originated in the Probate Court of the City of St. Louis as a proceeding to discover assets of his estate, wherein one of his children, Theresa R. Davis, as administratrix of his estate, was the plaintiff, and two of his other children, Victor D. Eossi and Mae E. Haseman, were the defendants. In an affidavit of the administratrix, 'defendants were charged with concealing and withholding all moneys,' goods and chattels owned by their father at the time of his death, particularly 120 shares of the capital stock of S. D. Eossi Grocery Company, a corporation, of the par value of $12,000, and the income derived therefrom, and 4,000 shares of the capital stock of S. D. Eossi, Incorporated, of the par value of $400,000, and the income derived therefrom. Defendants appeared in response to a citation and denied said charge, and thereafter filed their answers to interrogatories. In said answers they admit possession of all of said shares of the capital stock of said companies and certain income derived therefrom, and state that they hold the same as trustees under and by virtue of a certain deed of trust executed January 10, 1922, and further state that said 120 shares of the capital stock of S. D. Eossi Grocery Company were assigned to them on November 5, 1925, as trustees, under the terms of said deed of trust; A copy of said deed of trust and copies of the certificates covering the 120 shares of the capital stock of S. D. Ebssi Grocery Company, with all indorsements thereon, were attached to said answers. In her reply to said answers, the administratrix denies the execution and delivery of the alleged deed of trust; further replying, she says that the alleged deed of trust is void for the reasons, first, that it violates the rule against perpetuities; second, that it is testamentary in character; and third, that Simon D. Eossi did not, at any time, divest himself of the possession or control of the corpus of the alleged trust nor of the income derived therefrom; and further replying, she denies that said 120 shares of the capital stock of S. D. Ebssi Grocery Company were ever delivered or assigned to defendants as trustees under the terms of the alleged deed of trust, or for any other purpose. The probate court, sitting without a jury, found the issues for the administratrix, and, by its judgment, ordered that all of said shares of the capital stock of said companies and all income derived therefrom be turned over to the administratrix. Defendants appealed to the Circuit Court of the City of St. Louis, and that court, sitting without a jury, found the issues for defendants and rendered judgment accordingly. From that judgment, the administratrix has perfected an appeal to this court.\\nThe deed of trust in question reads as follows:\\n\\\"This Conveyance in Trust, Made and entered into this tenth day of January,-1922, by and between Simon D. Eossi, of the City of St. Louis and State of Missouri, party of the first part, and Victor D. Eossi and Mae E. Hasemann, of the same place, parties of the second part, and Madeline Eossi, Mae E. Hasemann, James F. Eossi, Victor D. Eossi, Theresa E. Davis, Sofia E. Peters, John B. Eossi, Clara E. Dallavalle, Aline Eossi, Harvey J. Eossi, Stanley A. Eossi and Harold G-. Johnson, of the same place, parties of the third part, witnesseth:\\n\\\"That said party of the first part, for and in consideration of the love and affection he bears to the parties of the third part, as well as the sum of one dollar by each of the parties of the third part paid to the party of the first part, the receipt of which is hereby acknowledged, and of the further consideration of the trusts hereinafter mentioned and created, does hereby sell, assign, transfer and set over unto said parties of the second part, the following described- personal property, which said personal property at the date of these presents is owned by said party of the first part, and which said personal property is, at the delivery of these presents, delivered by said party of the first part to said parties of the second part, and the parties of the second part hereby acknowledge receipt of the same from the party of the first part, namely:\\n\\\"Four thousand shares of the capital stock of S. D. Eossi, Incorporated, a corporation under the laws of the State of Missouri, of the par value of one hundred dollars each, evidenced by its certificate No. 1, for 3,998 shares in the name of S. D. Eossi; No. 2, for one share in the name of Victor D. Eossi, and indorsed by him in blank; and No. 3, in the name of Mae E. Hasemann, for one share, and indorsed by her in blank.\\n\\\"To have and to hold said property, together with any property acquired with the income thereof, together with any other property which may be hereafter added thereto, as hereinafter provided, unto said parties of the second part and their successors and assigns forever; in trust, however, for the following uses and purposes, and with the following powers and subject to the following reservations by the party of the first part, and the following limitations:\\n\\\"Said parties of the second part shall hold said property, together with any which may be added thereto, as hereinafter provided, and collect the income therefrom, and to invest the income unexpended or accumulating therefrom, and shall have the power to sell or dispose of any or all property acquired with the income of the same from time to time, except as hereinafter provided, so as to keep such income unexpended and - accumulating constantly invested, so as to bear an income, and shall constantly keep said property invested in such securities as in their judgment from time to time shall be safest and best, so as to bring the highest rate of income consistent with safety of investment, and shall invest the same from time to time only in such securities as shall be accepted by banks doing business in the city, of-St. Louis, Missouri, as collateral for loans to- be made by them.\\n' ' Said parties of the second part shall not sell or cause to be sold or transferred, or cause to be transferred on the books of said S. D. Rossi, Incorporated, the shares of stock of said S. D. Rossi, Incorporated, hereby conveyed and assigned, during the lifetime of the party of the first part, without the written consent of the party of the first part, and shall permit the party of the first part to vote said shares of stock, or to direct the voting of said shares of stock at all meetings of the stockholders of said corporation, in such manner as he may see fit, and shall permit the party of the first part to hold such offices, in said corporation as he shall desire to hold, so long as the party of the first part shall be living, or until said shares shall be transferred with his written consent. After the death of the party of the first part said shares shall be transferred on the books of said S. D. Rossi, Incorporated, to the parties of the second part, with the exception of one share, which the parties of the second part may cause to be transferred on the books of said S. D. Rossi, Incorporated, to a third person to hold for the parties of the second part in order that said corporation may have at least three stockholders. And the party of the first part hereby agrees to endorse and deliver to the parties of the second part all dividend checks received by him from time to time from said corporation in pay.ment of dividends declared on said shares.\\n\\\"Out of the income from said property said parties of the second part shall first pay all taxes of every kind which may be assessed against said property or the income therefrom and any necessary expenses of administering the trusts hereby created, including reasonable compensation to the parties of the second part for their services, which shall be five (5) percentum of all disbursements made by them, and the net income remaining after the payment of such taxes and necessary expenses of administration the parties of the second part shall pay over to the party of the first part for and during his natural life from time to time, at least once each three months, so long as the party of the first part shall be capable of managing his own affairs, and, if the party of the first part shall become incapable of managing his own affairs, then the parties of the second part may use said income, in whole or in part, for the support and maintenance of the party of the first part and his immediate family then residing with him, and incur liability therefor, and pay for the same to the persons furnishing the same out of said income.\\n\\\"Upon the death of the party of the first part, the parties of the second part shall, out of said income, pay the expenses of the funeral of the party of the first part. Within one year after the death of the party of the first part, the parties of the second part shall also erect a monument to the party of the first part upon his family lot in the Calvary Cemetery of said city of St. Louis, \\u00fct a cost of not less than one thousand dollars ($1,000.00) and shall pay the following sums to the following charities, religious or educational organizations in said city of St. Louis, namely:\\n\\\"St. Charles Borromeo Italian Church, one .thousand dollars ($1,000.00); St. Charles Borromeo Italian School, five hundred dollars ($500.00); St. Charles Borromeo Italian Orphans Asylum, one thousand dollars ($1,000.00); St. Mary's Infirmary, five hundred dollars ($500.00) ; St. Vincent de Paul Society, five hundred dollars ($500.00); St. Louis Provident Association, five hundred dollars ($500.00); the Little Sisters of the Poor, four hundred dollars ($400.00), and the House of the Good Shepherd, two hundred dollars ($200.00); Mount St. Rose Sanitarium, two hundred dollars ($200.00), and All Saints Roman Catholic Church, two hundred dollars ($200.00); and to the St. Bernard's Church of Cassamarion, Italy, two hundred dollars ($200.00), all of which sums 'the parties of the second part shall pay out of said income of said property.\\n\\\"After the death of the party of the first part, the parties of the second part shall out of said net income pay to the party of the third part, Madeline Rossi, for and during her natural life, not less than the sum of two hundred and fifty dollars- ($250.00) each month.\\n\\\"At the request of the said Madeline Rossi at any time after the death of the party of the' first part, the parties of the second part are hereby authorized and directed to pay to her not exceeding fifteen thousand dollars in one sum out of said net income, and in the event said net income shall not be sufficient to pay said sum or part thereof, said parties of the second part shall have, and are hereby granted, the power to borrow whatever sum shall be required to pay said amount to said Madeline Rossi, and to pledge as security for the loan a part of the shares of said S, D: Rossi, Incorporated, sold and assigned to them hereby, but any loan so obtained by the parties of the second part shall be discharged as soon as possible out of the said net income remaining after the payment of the sums of two hundred and fifty dollars per month directed hereby to be made monthly to said Madeline Rossi, and the payment .of the other sums hereinbefore directed to be paid has been made.\\n\\\"The party of the first part also hereby directs said parties of the second part that, in the management of the affairs of said S. D. Rossi, Incorporated, after his death, only so much of the net income of said corporation as shall be required to make the payments to said Madeline Rossi, and the other payments hereinbefore directed to. be made, shall be set apart as dividends, and that the remainder of the net income of said corporation be accumulated from time to time to provide a sinking fund with which to pay off the indebtedness which is now secured by deed of trust against part of the property owned by said corporation and to make im provements on the property of the corporation situated on the north side of Delmar Boulevard, opposite Skinker Boad, in said city. After said indebtedness secured by deed of trust shall have been paid, said parties of the second part shall, in the management of said corporation, cause five thousand dollars ($5,000.00) per annum of the net income of said corporation to be set aside for the purpose of improving with suitable buildings said property on the north side of Delmar Boulevard and paying for such improvements, and the remainder of the net income of said corporation shall be distributed as dividends, out of ivhieh, when the same shall be received by the parties of the second part, they shall pay said Madeline Bossi the sums hereinbefore directed to be- paid to her, and the balance remaining after such payments they shall pay to the parties of the third part other than said Madeline Bossi, as hereinafter provided: Should the term for which said corporation was incorporated terminate before the termination of the trusts herein created, said parties of the second part shall either extend the corporate existence of said corporation or form a new corporation to take over the property of said corporation, which new corporation shall be conducted in the same manner as said S. D. Bossi, Incorporated, was conducted by the parties of the second part.\\n\\\"After, the death of said Madeline Bossi said parties of the second part, or their successors, shall, until the death of the last survivor of the parties of the third part, pay over to the remaining parties of the third part said net income in equal parts, share and share alike, at least once each quarter, and should any of said parties of the third part die, either before or after the death of said Madeline Bossi, leaving surviving him or her a child or children, or other descendants, then said parties of the- second part or their successors shall pay to the child or children or descendants of such party of the third part, who is no longer living, the share of such income their parent would have received were he or she still living, or expend or use the same for the support, maintenance or education of such child or children or descendants, and in the event any of the parties of the third part die, either before or after the death of said Madeline Bossi leaving surviving him or her no children, or descendants, but shall leave surviving a husband or wife with whom said party of the third part so dying shall have been actually living at the time of his or her death, then, upon the death of such party of the third part, said parties of the second part shall pay to such surviving husband or wife of such deceased party of the third part for and during his or her life, and so long as he or she shall remain unmarried, one-half of the share of said net income of said deceased party of the third part would have been entitled to had said party of the third part not died, and the remainder of the share of such deceased party of the third part in such in come shall be paid to the other parties of the third part or their children or descendants in equal parts, the children or descendants of any deceased party of the third part together taking the share of their parent in such part of said income.\\n\\\"After the death of the last survivor of said parties of the third part, said parties of the second part or their successors, shall assign, transfer and convey all of the property and money then in their hands to the male children or descendants of the parties of the third part, Victor D. Rossi and Harvey J. Rossi, then living, in equal parts per stirpes.\\n\\\"In using the words 'descendants' or 'child' or 'children' in this instrument, only children or descendants of children natural born are intended.\\n\\\"Said income to be paid or applied by the parties of the second part for the benefit of the parties of the third part, or their children respectively, shall not be due or payable until such periods or times as shall be determined by the parties of the second part, and when so due and payable, shall be paid over to and received by the parties of the third part free and clear of any and all claims on the part of the creditors of the parties of the third part, or their children, respectively, and said parties of the third part, or their said children, at ho time shall have the right or power to anticipate, pledge, assign or transfer said income to be paid to them, respectively, or used for their support or maintenance, nor shall the parties of .the third part or their children, respectively, have the right or power to pledge, assign, sell, transfer, or in any manner dispose of any interest they, or any of them, may acquire- in said property prior to the time the same shall be assigned, conveyed and delivered to them by the parties of the second part, or their successors.\\n\\\"Should any of the parties of the third part, or anyone for them, or any of them, institute any action or proceedings of any kind in any court at any time for the purpose of setting aside this instrument, on any ground whatsoever, and be unsuccessful therein, then and in such event said parties of the second part shall pay to each party of the third part instituting such proceeding or directing or assisting in the institution or prosecution of such proceeding, the sum of one dollar, and all further interest of such party or parties of the third part, or his children and descendants in the property conveyed hereby, and the income thereof, shall cease and in the distribution of the income from said property and the property itself, such party or parties of the third part and his or her children shall not share further, and the share of such party or parties of the third part and their children and descendants shall be paid, assigned, transferred and conveyed by the parties of the second part to the other parties of the third part, excepting said Madeline Rossi, or their children and descendants, in equal parts share and share, as and when distribution of the portion of said income and property to be paid or distributed to them. respectively shall be paid and distributed.\\n\\\"Said party of the first part also shall h\\u00e1ve the right to add to the property hereby conveyed other property from time to time if he shall see fit to do so, and upon the delivery and conveyance of said property to the parties of the second part by the party of the first part, the parties of the second part shall hold the same under the same conditions and with the same powers and trusts as are declared herein with reference to the property conveyed hereby, but the fact that additional property shall have been delivered and conveyed to the parties of the second part shall be noted by an addition to this instrument made at the time of said delivery and conveyance. The party of the first part also reserves and shall have the right to any time hereafter by instrument in writing duly executed and delivered by him to the parties of the second part, change the manner, time and amounts of the payments of both income and principal to be made by the parties of the second part hereunder.\\n\\\"In the event that either of the parties of the second part shall die or .decline in writing to further carry out the trusts herein and hereby created, before said trust shall be fully executed, the survivor or remaining trustee may designate by a writing to be executed, acknowledged and attached hereto, a successor to the trustee or trustees so dying or declining to act in the trusts aforesaid, and said successor or successors so designated shall have all the powers and powers and rights of the trustees or trustee so dying or declining to act, including the right to appoint a successor upon the death or refusal to act further on the part of any of his cotrustees.\\n\\\"In witness whereof, said party of the first part has hereunto set his hand the day and year first above written, and the parties of the second part also hereto set their hands hereto, indicating their acceptance of the trusts created hereby and their willingness to execute the same on the terms herein set out.\\n\\\"S. D. Rossi,\\n\\\"V. D. Rossi,\\n\\\"Mae R. Haseman,\\nTrustees. ' '\\nAt the hearing in the circuit court 'the administratrix testified: She is the daughter of Simon D. Rossi, who died in St. Louis on December 6, 1925, and of Madeline Rossi, who is still living. Her father left four other daughters, Mae Haseman, Clara Dallavalle, Aline Salveggi and Sofia Peters, and five sons, Victor, John, James, Harvey and Stanley, and a grandson, Harold Johnson, whose parents are dead. She lived in California for about eleven years prior to her father's death, but moved back-to St. Louis \\\"as a resident\\\" in July, 1926. She identified defendants' exhibits C, D, E, F and G as statements of account received by her from defendants. She received two checks from defendants in connection with two of said statements of account, but returned the checks to defendants. In explaining why she returned the checks she said: \\\"Well, I dispute that instrument. The copy I received and the instrument that was read to me twenty days after my father died are not the same instrument. ' '\\nBy agreement of the parties the administratrix put in evidence the following testimony of Victor D. Rossi, given at the hearing in the probate court:\\n\\\"My name is Victor D. Rossi. I live at 7700 Clayton Road. I am in the coffee business. I am a son of S. D. Rossi, who died last December. I was and am secretary of the S. D. Rossi Grocery Company. As a trustee I have in my possession 120 shares of stock of the S. D. Rossi Grocery Company, owned by S. D. Rossi in his lifetime. I hold that as a trustee, along with my sister, Mrs. Haseman. My sister and I hold that stock jointly as trustees, and not in our own individual right. Those shares of stock came into our possession on November 5, 1925. I received them from my father. The shares of stock at that time stood in his name. As secretary of the S. D. Rossi Grocery Company I have in my possession the minute. book and books of account of that company. That company is not now engaged in business. It ceased to transact business on June 7, 1926. The greater part, but not all, of its assets were disposed of at that time. They were sold to L. Cohen Grocery Company. We have the proceeds in the bank. The unsold assets of that corporation are a stock of can goods. We have got can goods and money and accounts on the books. We sold the greater part of the can goods. We still have some. I was familiar with the corporation known as the S. D. Rossi, Incorporated. I am now the president of that company. Prior to becoming president I was secretary. In his lifetime S. D. Rossi owned all of the shares of stock of that corporation outside of two shares. The capitalization of that corporation was $400,000. Its assets consisted of real estate. Jointly with my sister, Mrs. Haseman, I have possession of the 4,000 shares of S. D. Rossi, Inc. I transferred them right after my father's death. We do not make any claim to these shares of stock individually or personally. We claim possession of these shares of stock as trustees. There was an instrument in writing creating this trust of which I claim to be a trustee. I was familiar with the preparation and execution of that instrument. It was executed in January, 1922. We have the original instrument in our possession. I haven't it with me. There were two originals made. One was given to the trustees and the other S. D. Rossi kept himself. Outside of these duplicates of the same instrument, S. D. Rossi never executed any other instrument, to my knowledge. No dividends were earned or collected by S. D. Eossi, Inc., for 1922, 1923, 1924 or 1925. The income or'profits from-the real estate held by S. D. Eossi, Inc., during those years was paid to my father as salary. He received as salary around $25,000. It was paid yearly. The property included in the corpus of the trust that I now claim exists is located at Fifteenth and Market, at Taylor and Delmar, at Kingshighway and Delmar and at Sldnker Eoad and Delmar. The trust estate owns no other property, real or personal. The personal checking account of S. D. Eossi in his lifetime ceased when he incorporated. When he received this annual salary in a lump sum of $25,-000 he used it to pay off his obligations. He had a deed of trust on the property, which was finally paid off July 30, 1925. He had no safe deposit box at any time He had no household goods, only what was at home. He did not have any property in his own name and in his own right of any kind whatsoever at the time of his death. Mrs. Haseman and I did not collect any dividends or profits from the S. D. Eossi, Inc., or S. D. Eossi Grocery Company at any time during the lifetime of our father. All the profits of these corporations were paid directly to our father, S.- D. Eossi, as salary.\\\"\\nThe administratrix also put in evidence various papers and documents relating to the citation proceeding in the probate court and various exhibits relating to her father's business affairs during the years 1922, 1923, 1924 and 1925, and to income received by defendants from the alleged trust estate after her father's death. Among these papers, documents and exhibits were the copies of eleven certificates (Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 17) covering the 120 shares of the capital stock of S. D. Eossi Grocery Company which defendants attached to their answers to interrogatories in the probate court. On the back of each .of said certificates, as shown by said copies thereof, is the following indorsement:\\n' ' For value received, I hereby sell, assign and transfer unto Victor D. Eossi and Mae E. Haseman, trustees, all the shares of the capital stock represented by the within certificate, and do hereby irrevocably constitute and appoint the vice-president to transfer the said stock on the books of the within named corporation with full power of substitution in the premises. Dated July 5, 1922.\\n\\\"S. D. Eossi,\\n\\\"By V. D. Eossi, Agent.\\\"\\n\\\"In presence of\\n\\\"Mae E. Haseman.\\n\\\"Ten cents U. S. revenue stamp'canceled.\\\"\\nOn the face of each of said certificates, as shown by said copies thereof, the following indorsement appears:\\n\\\"Canceled and certificate No. 19 issued in lieu hereof January 16, 1926.\\n\\\"V. D. Eossi, Secretary.\\\"\\nAccording to the evidence adduced by defendants, Simon D. Rossi was about seventy years of age and in good health at the time of the execution of the deed of trust, on January 10, 1922, and continued to enjoy good health and to give his personal attention to the management of his business affairs until about November 26, 1925, or about ten days prior' to his death. He had been successful in business and had- accumulated several pieces of valuable real estate in the city of St. Louis. During the period of about two years prior to the execution of the deed of trust, he had numerous conferences with his attorney concerning the, establishment of a trust estate for the benefit of his family. As the result of these conferences, the formation of S. D. Rossi, Incorporated, was effected in August, 1921. The first meeting of the stockholders was held on August 10, 1921. At that meeting Simon D. Rossi, his daughter, Mae R. Haseman, and his son, Victor D. Rossi, were elected as directors of the company, and Simon D. Rossi was elected president and treasurer, Mae R. Haseman was elected vice-president and Victor D. Rossi was elected secretary of the company. They continued to hold these offices; respectively, until Simon D. Rossi's death. The company was capitalized at $400,000, and its assets consisted entirely of real estate conveyed to it by Simon D. Rossi. The capital stock was divided into 4,000 shares of the par value of $100 each. It was resolved that the corporation begin business on January 1, 1922, and the president and secretary were authorized to issue certificates of stock to the stockholders of the company. At a meeting of the board of directors on January 10, 1922, it was reported that the company had begun business on the first day of that year. On the same day, January 10, 1922, Simon D. Rossi, Mae R. Haseman and Victor D. Rossi went to the office of Simon D. Rossi's attorney, where duplicate copies of the deed of trust were executed by Simon D. Rossi, as settlor, and by Victor D. Rossi and Mae R. Haseman, as trustees. A certificate covering 3,998 shares of the capital stock of S. D. Rossi, Incorporated, issued in the name of Simon D. Rossi, and then in his possession, was indorsed by him; that is, he signed his name to the transfer blank on the back of said certificate. A certificate covering one share of the capital stock of said company, issued in the name of Victor D. Rossi, was indorsed by him in the same way, and a certificate covering one share of the capital stock of said company, issued in the name of Mae R. Haseman, was indorsed by her in the same way. Simon D. Rossi then delivered one copy of the deed of trust and the three certificates mentioned to Victor D. Rossi and Mae R. Haseman, and they accepted the deed of trust and said certificates as trustees under the terms of the deed of trust, and have held the deed of trust and said certificates as such trustees ever since. ' Simon D. Rossi's salary as president and treasurer of the company was fixed' at $14,400 for 1922; at $20,000 for 1923; at $25,000 for 1924, and at $25,000 for 1925. Out of this total of $84,400 received by him as salary during the four years mentioned he paid $65,313.14 in liquidating indebtedness of the company, the same being in the form of a note secured by a deed of trust covering the company's real estate. He performed the duties of president and treasurer of the company. During his lifetime, no books of account were kept by the company, \\\"such as cash received and moneys paid out. He didn't keep anything except his stub book and his bank deposit book. That is what he went by. It was handled in the way he saw fit. He alone signed the cheeks of the company.'' The checks were signed \\\"S. D. Rossi, Incorporated, by S. D. Rossi, President.\\\" He drew no money from the company's treasury except his salary. The net income of the company was put into its surplus fund. A written statement (Plaintiff's Exhibit I) made by Victor D. Rossi shows that all sums of money paid by the company to his father, or for his benefit, \\\"from March 15, 1922, to the end of 1925,\\\" represent the exact amount of his salary during the years 1922 to 1925, inclusive. From January 10, 1922, until their father's death, on December 6, 1925, Mae R. Haseman and Victor D. Rossi voted all of the shares of stock of the company at the annual elections of directors and officers of the company. They received no salary from the company during their father's lifetime. Shortly after the death of their father, the original certificates covering the 4,000 shares of the capital stock of S. D. Rossi, Incorporated, were canceled and new certificates were issued in the names of Victor D. Rossi and Mae R. Haseman, as trustees under the deed of trust. On January 16, 1926, Victor D. Rossi and Mae R. Haseman were elected directors of the company, and Victor D. Rossi was elected president and treasurer, and Mae R. Haseman was elected secretary of the company. The salary of each was fixed at $3,500 per year. Not long thereafter the secretary of the company reported one share of stock transferred to Madeline Rossi, and she was thereupon elected as a director and vice-president of the company. On May 11, 1927, her salary was fixed at $350 per month, beginning May 1st of that year. The business of the company was continued under the management of Victor D. Rossi, Mae R. Haseman and Madeline Rossi as its officers and directors. Out of the net income of the company, payments were made to Madeline Rossi, as provided for in the deed of trust, and out of the balance of the net income of the company dividends were declared, from time to time, and paid to eleven of the twelve beneficiaries of the trust estate, Theresa R. Davis, the administratrix, having refused to accept her share of said dividends. Defendants put in evidence various statements of account (Exhibits C, D, E, F and 0), showing receipts and disbursements of S. D; Rossi, Incorporated, and S. D. Rossi Grocery Company, from December 1, 1925, to March 31, 1927, and the minute book of S. D: Rossi, Incorporated (Exhibit H), showing the minutes of stockholders' and directors' meetings of the company from August 10, 1921, to May 11, 1927, and copies of the original certificates covering the 4,000 shares of the capital stock of S. D. Rossi, Incorporated (Exhibits 3, 4 and 5). The copies of said certificates appear in appellants' abstract of the record in the following abbreviated form:\\n\\\"Exhibit 3. \\u2022 Certificate No. 1.\\n\\\"3998 Shares. S. D. Rossi, Inc.\\n' ' Capital Stock, $400,000.00\\n\\\"This certifies that S. D. Rossi is the owner of Thirty-nine hundred and niney-eight (3998) shares of the capital stock of S. D. Rossi, Incorporated, full' paid, transferable only on the books of this corporation in person or by attorney upon surrender of this certificate properly endorsed.\\\" Signed by Victor D. Rossi, Secretary, and S. D. Rossi,' president.'\\nTransfer blank on back, signed by S. D. Rossi.\\nExhibit 4. Certificate No. 2.\\n1 Share in the name of Victor D. Rossi. Form same as Exhibit 3. Transfer blank endorsed by V. D. Rossi.\\nExhibit 5. Certificate No. 3.\\n1 Share in the name of Mae R. Haseman. Form the same as Exhibit 3. Transfer blank endorsed by Mae R. Haseman.\\nOther pertinent evidence will be noted in connection with our discussion of the appellate issues.\\nBoth sides requested findings of .fact, and the administratrix requested declarations of- law. The following findings of fact were requested by defendants and filed by the circuit court as its findings:\\n\\\"That Simon D. Rossi died intestate in the city of St. Louis,-Missouri, on the 6th day of December, 192'5, and that in September, 1926, the plaintiff, Teresa R. Davis, was appointed administratrix of the estate of said Simon D. Rossi, deceased, by the Probate Court of the City of St. Louis.\\n\\\"That in the month of August, 1921, said S. D. Rossi organized a corporation known as S. D. Rossi, Incorporated, with a capital stock of $400,000, divided -into 4,000 shares of the par value of $100 each; that after this corporation was organized, at a meeting of its stockholders, held on August 10, 1921, by-laws for the government of the corporation were adopted, providing for the officers of the corporation and fixing their duties, and authorizing the board of directors to fix the salaries to be paid to the officers, respectively; that on August 10, 1921, at a meeting of the directors of the corporation, said Simon D. Rossi was elected its president and treasurer, the defendant Mae R. Haseman, its vice-president, and the defendant Victor D. Rossi its secretary, and a resolution was passed that the company begin business on January 1, 1922.\\n\\\"That on January 10, 1922, at' a meeting of the directors of the company, the salary of said Simon D. Rossi, as president and treasurer, and for all services he might render to the company, was fixed at $1,200 per month, payable at such times and in such amounts as might be required by him, beginning with the first day of January, 1922; that thereafter, at the annual meeting of the corporation held in January of the years 1923, 1924 and 1925, the same board of directors, consisting of Simon D. Rossi, Victor D. Rossi and Mae R. Haseman, was elected, and that this board of directors re-elected these same officers, and that at the meeting of the directors in 1923 the salary of Simon D. Rossi was fixed at $20,000 for the year 1923, and at the meetings of 1924 and 1925 the salary of said Simon D. Rossi was fixed at $25,000 per annum.\\n\\\"That on January 10, 1922, certificates of stock were issued by said corporation as follows: No. 1 for 3,998 shares to Simon D. Rossi, No. 2 for one share to Victor D. Rossi, and No. 3 for one share to Mae R. Hjaseman; that said certificates issued to Victor D. Rossi and Mae R. Haseman were immediately endorsed in blank by them, respectively, and delivered to said Simon D. Rossi; that on said January 10, 1922, said Simon D. Rossi executed a conveyance in trust dated the 10th day of January, 1922, in duplicate, being the instrument offered in evidence in this cause, and also endorsed in blank said certificate for 3,998 shares of S. D. Rossi, Incorporated; that on said day, immediately after said Simon D. Rossi had executed said conveyance in trust, said Victor D. Rossi and Mae R. Haseman also executed the same, and that after they executed the same said. Simon D. Rossi delivered to said Victor D. Rossi and to Mae R. Haseman one copy of said conveyance in trust, together with said certificates of stock of the S. D. Rossi, Incorporated, No. 1 for 3,998 shares in the name of S. D. Rossi, endorsed in'blank by S. D. Rossi; No. 2 for one share in the name of Victor D. Rossi, and endorsed in blank by Victor D. Rossi, and No. 3 for one share, in the name of Mae R. Haseman and endorsed by her in blank, and retailed for himself the other copy of said trust conveyance; that from the time said copy of said trust conveyance and said certificates of stock were delivered by said Simon D. Rossi to said Victor D. Rossi and Mae R. Haseman, said Victor B. Rossi and Mae R. Hase-man had and still have possession' of the same, and have claimed to own said shares of stock as trustees under said trust conveyance, and subject to the terms thereof.\\n\\\"That on November 4, 1925, said Simon D. Rossi delivered to said Victor D. Rossi the certificate for 120 shares of the stock of the S: D. Rossi Grocery Company of the par value of $100 each, full paid, in his name, and directed him to endorse the. same for him and in his name and deliver the same to said Victor D. Rossi and Mae R. Haseman, as trustees, to. be added to said shares of S. D. Eossi, Incorporated, under the terms of said conveyance\\\" in trust, and that on November 5, 1925, said Victor D. Eossi endorsed said certificates in blank for said S. D. Eossi and in his name and delivered the-same to said Victor-D. Eossi and Mae'E. Hase-man, and that since said time they have held and still hold the same as trustees under said trust conveyance and subject to the terms thereof.\\n\\\"That the consideration for said trust conveyance was the love and affection said Simon D. Eossi bore for his wife' and children, named as beneficiaries therein, and the obligations assumed by the trustees named therein thereby.\\n\\\"That at the time said Simon D. Eossi executed said trust conveyance and delivered the same with the certificates- for the shares of stock referred to therein, -he was in good- health and actively engaged in the wholesale grocery business, as well as the management of the business of said S. D. Eossi, Incorporated; that said certificates for said shares of the S. D; Eossi Grocery Company were delivered by him to said Victor D. Eossi while he was in good health and prior to the injuries received by him- about ten days before his death; that his death on the 6th day of December, 1925, was occasioned by pneumonia, resulting from injuries received by him-from a fall in the yard surrounding his residence, about ten days prior to his death.\\n\\\"That said S. D. Eossi, Incorporated, during the lifetime of said Simon D. Eossi, declared no dividends, but - each year added something to a-surplus account, begun ' in 1922, until at the end of 1925 said surplus amounted to $15,022.27; that after the death of said Simon D. Eossi said Victor D. Eossi and Mae E. Haseman,. as trustees under said trust conveyance, received-- dividends from said S. D. Eossi, Incorporated, aggregating $68,000, and from said S. D. Eossi Grocery Company aggregating $18,000.\\n\\\"That from August 10, 1921, to the date -of his death, said Simon D. Eossi acted as director and president and -treasurer of said S. D. Eossi, Incorporated; that the salary voted to him by the board of directors for his services as president and treasurer was drawn in part by him or paid out for his account as directed by him, either-in cash or by checks drawn by him as president of the corporation.\\\"\\nThe judgment rendered in accordance with said findings of fact is as follows: - ' -\\n\\\"Now at this day comes again -the plaintiff in-person .and by Messrs. Laughlin, Frumberg, Blodgett & Bussell, 'her attorneys, and come also the defendants in person and by. George W. Lubke; Jr., and Messrs. ^ Foristel, Mudd, Blair & Habenicht, their attorneys, and this cause having been heretofore on the 9th -day of June, 1927, submitted to the court, and the Court having fully considered^ the- same and being now fully advised therein, doth find the issues herein joined in favor of the defendants, and doth further find that at the time of his death on the 6th day of December, 1925, Simon D. Rossi did not own and had no right, title or interest in and to 4,000 shares of the capital stock of S. D. Rossi, Incorporated, evidenced by its certificates dated January 10, 1922, No. 1 for 3,998 shares in the name of S. D. Rossi, N:o. 2 for one share in the name of 'Victor D. Rossi, and No. 3 for one share in the name of Mae R. Haseman, and that said Simon D. Rossi at the time of his death had no right, title or interest in and .did not own 120 shares of the capital stock of the S. D. Rossi Grocery Company evidenced by its certificates dated July 1, 1922, Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10, for 10 shares each, and No. 17 for 20 shares, and that said 4,000 shares of the capital stock of S. D. Rossi, Incorporated, and 120 shares of the capital stock of the S. D. Rossi Grocery Company were at the time of the death of said Simon D. Rossi the property of and owned by the defendants Victor D. Rossi and -Mae R. Haseman, as trustees under a conveyance in trust executed and delivered by said Simon D. Rossi on the 10th day of January, 1922, and that as said owners the defendants, as such trustees were and are entitled to all dividends declared on said shares, and that the plaintiff as the administratrix of the estate of said Simon D'. Rossi, deceased, has no right, title or claim thereto or any part thereof.\\n\\\"It is, therefore, adjudged by the court that the defendants, Victor D. Rossi and Mae R. Haseman, as trustees under a conveyance' in trust executed and delivered by Simon D. Rossi, dated January 10, 1922, are the owners of said shares of stock and hold the same under and pursuant to the provisions in said conveyance in trust, and as such trustees are also entitled to all dividends declared on said shares, and that the plaintiff is not entitled to recover the same from the defendants and has no right, title or claim thereto or to any part thereof and that the costs herein be paid by the plaintiff and that this judgment be certified to the Probate Court of the City of St. Louis.\\\"\\nThe administratrix challenges the validity of the deed of trust on the grounds, first, that it was not executed with the intention of creating a bona-fide trust, but for the purpose of evading the state inheritance tax and the statutes relating to wills and the administration of estates; second, that its terms and conditions and the acts of the parties in connection therewith do not meet the requirements of the law for the creation of a completely executed trust; third, that it is testamentary in character, and, fourth, that it violates the rule against perpetuities. And she further contends that there is a failure of proof of the alleged assignment of the 120 shares of the stock of S. D. Rossi Grocery Company.\\nI. This case having originated as an aetion at law, and having been tried as such in the probate court and in the circuit court, as a^ove indicated, will be so considered by this court, [Secs. 62 to 66, R. S. 1919; Sexton v. Sexton, 295 Mo. 134, 243 S. W. 315; Clinton v. Clinton, 223 Mo. 371, 323 S. W. 1.]\\nII. The question of whether or not the deed of trust was executed with the intention of creating a bona-fide trust will be considered \\u2122 connecti\\u00b0n \\\"with the question of whether or not a completely executed trust was created by that instrument and the acts of the parties in relation thereto.\\nThe deed of trust names Simon D. Rossi as party of the first part, and Victor D. Rossi and Mae R. Haseman, two of his children, as parties of the second part, and Madeline Rossi, his wife, and his ten children, including Victor D. Rossi and Mae R. Haseman, and his grandson, Harold G. Johnson, as parties of the third part. It recites that the first party \\\"does hereby sell, assign, transfer and set over unto said parties of the second part\\\" certain personal property, namely, \\\"four thousand shares of the capital stock of S. D. Rossi, Incorporated, To Have and To Hold, together with any property acquired with the income thereof, together with any property which may be added thereto, as hereinafter provided* In Trust,\\\" for certain uses and purposes, and with certain powers, and subject to certain reservations and limitations, which are there-inafter prescribed. It provides that the trustees shall collect and invest the income of the trust property; and have the power to dispose of any property acquired with said income; and pay taxes assessed against the trust property and necessary expenses of administering \\\"the trusts hereby created;\\\" and pay the \\\"net income over to the party of the first part for and during his natural life;\\\" and, upon his death, pay certain sums of money to certain religious, educational and charitable institutions, and make certain payments of money to his widow, out of the net income of the trust property; and, out of the remainder of said net income provide a sinking fund with which to pay off indebtedness secured by a deed of trust against the real estate of S. D. Rossi, Incorporated, and make improvements on certain pieces of said real estate; and distribute the balance of said net income, as dividends, to the parties of the third part other than his widow; and, after the death of his widow, pay the net income of the trust property to the remaining parties of the third part, share and share alike, \\\"until the death of the last survivor of the parties of the third part;\\\" and, in the event any of said parties of the third part die, either before or after the death of his widow, pay to the children or- other descendants of such party the share of said income that such party would receive if living; and, in the event any of said parties of the third part die, either before or after his widow, leaving a husband or wife with whom such party was actually living at the time of his or her death and leaving no, children or other descendants, pay to such surviving husband or wife, for and during his or her life, so long as he or she shall remain unmarried, one-half of.the share of said income that such party of the third part would receive if living, and pay the other one-half of such party's share of said income to the other parties of the third part, or their children or descendants, in equal parts, the children or descendants of any deceased party of the third part \\\"together\\\" taking the share of their deceased parent in such part of said income; and, \\\"after the- death of the last survivor of said parties of the third part,'.' convey all of the trust property to the male children or descendants of Victor D. Rossi and Harvey J. Rossi, then living, in equal parts per stirpes. It further provides that said income shall be due and payable to the parties of the third part or their - children at such times as shall be determined by the trustees, and that said parties of the third part and their children shall not anticipate, pledge, assign, transfer, nor in any manner dispose of, any interest they may have in the trust property at any time before the same is assigned, conveyed or delivered to them. - It further provides that the - trustees shall not sell or transfer said shares of stock, nor cause the same to be transferred on the books of the corporation, during the lifetime of the first party, without his written consent; and shall permit him to vote or to direct the voting of said shares of stock at all meetings of the stockholders of the corporation and to hold such offices in the corporation as. he may desire until said shares of stock shall be transferred with his written consent; and, after his death, said shares of stock shall be transferred on the books - of the corporation to the trustees except one share, which shall be -transferred to a third person to hold for the trustees, in order that the corporation may have three stockholders. In this connection the first party agrees to indorse and deliver to the trustees all dividend checks received by him from the corporation covering dividends on said shares of stock.\\nIt further provides that the first party shall have the right, at any -time, to add other property to the property therein conveyed; and that such additional property shall be held by the trustees under the same conditions as the property therein conveyed; and that the fact that additional property shall have been conveyed and delivered to the trustees shall be noted by an addition to \\\"this instrument\\\" at the time of such conveyance and delivery. And it further provides that the first party .reserves the right to t\\u00edhang\\u00e9 the manner, time and amounts of the payments of both in come and principal to be made by tbe .trustees \\\"hereunder\\\" by an instrument in writing duly executed and delivered to the trustees.\\nManifestly it was the purpose of Simon D. Eossi to provide for the future comfort and happiness of his wife and children and grandson, and to protect them against misfortune, perhaps against their own improvidence and lack of business ability. His plan for the. accomplishment of that - purpose was adopted upon the advice of his attorney and after a thorough consideration of the matter on his part. \\\"We must assume that he intended to do what th\\u00e9 de\\u00e9d of trust shows he attempted to do. If that instrument, together with what was done in connection with it, created a valid trust, then it should be; carried out in favor of the beneficiaries. And, in our opinion, it clearly appears that he intended, at the time he executed the deed of trust, to establish a bona-fide trust, and that he and the trustees did everything that was necessary to establish a completed trust, with the legal title to the trust property vested in the -trustees, and with equitable life estates in his children and grandson, Harold G. Johnson, in the net income of the trust property, and, upon the death of any of his children, or his said grandson, until the death of the last survivor of such parties, their children or other descendants and their husbands or wives, under certain conditions, being entitled to certain parts of said income, subject to the. right of Simon D. Eossi to receive the net income of the trust property during his life, and, after his death, subject to the payment of certain sums of money to his widow during her life, and to the payment of -certain sums of money to certain religious, educational and charitable institutions, and to the payment of certain indebtedness'-against the real estate of S: D. Eossi, Incorporated, and to the payment of the cost of certain improvements on certain pieces of said real estate. In this opinion we are amply supported by decisions, based upon similar facts, in this and other. jurisdictions. [In re Estate of Soulard, 141 Mo. 642, 43 S. W. 617; Harris Banking Co. v. Miller, 190 Mo. 640, 89 S. W. 629; Sims v. Brown, 252 Mo. 58, 158 S. W. 624; Mendenhall v. Pearce (Mo. Sup.), 20 S. W. (2d) 670; Van Cott v. Prentice, 104 N. Y. 45; Stone v. Hackett, 78 Mass. (12 Gray) 227; Talbot v. Talbot, 32 R. I. 72; Kelly v. Parker, 181 Ill. 49; Lewis v. Curnutt, 130 Iowa, 423; Innes v. Potter, 130 Minn. 320; Nichols v. Emery, 109 Cal. 323.]\\nBy the delivery of the deed of trust and the certificates covering the 4,000 shares of stock of S. D1. Eossi, Incorporated, the settlor -divested himself of the legal title to said shares of stock and vested it in the trustees, for the uses and purposes specified in the deed of trust. True, he reserved a beneficial interest in the trust property, the right to receive the net income derived therefrom during his lifetime. But this was one of the declared purposes of the trusty and did not affect its validity. He could as well make the net in come payable to himself during his lifetime as to any other person. [In re Estate of Soulard, Stone v. Backett, supra.] Moreover, his reservation of the net income of the trust property for life is strong evidence of his intention to transfer the title to the property, subject to that reservation. [Williams v. Latham, 113 Mo. l. c. 174, 20 S. W. l. c. 101; Sneathen v. Sneathen, 104 Mo. l. c. 209, 16 S. W. l. c. 499.] It makes no difference that he received this income in the form of salary from S. D. Rossi, Incorporated, of which he was president and treasurer. [Talbot v. Talbot, supra, l. c. 93.] And certainly he was privileged to do with it as he pleased. The fact that he paid the indebtedness against the real estate of the corporation out of his salary merely indicates that it was his purpose to increase the value of the property which he had put in trust for the benefit of his family after his death. Nor was it inconsistent with a completely executed trust for him to reserve the right to vote or direct the voting of said shares of stock and the right to hold such offices in the corporation as he desired. That was not a reservation of title, but of reasonable powers, coupled with the trust, for the protection of his equitable right to the net income of the trust property during his lifetime. [In re Estate of Soulard, Van Cott v. Prentice, supra.] And, while one of the trustees testified that he and the other trustee voted said shares of stock at all meetings of the stockholders of the corporation, it may be assumed that the settlor directed the voting of said shares of stock at all of such meetings during his lifetime. Nor did the provision in the deed of trust that said shares of stock should not be transferred on the books of the corporation until after the death of the settlor, except by his written consent, prevent a complete transfer of the legal title to said shares of stock in praesenti, notwithstanding the by-law of the corporation, which says, \\\"The stock of this company shall be transferred only on the books of the company, and every transfer of stock shall be subject to the lien of the company thereon for any debt,\\\" and Section 9743, R. S. 1919, which says, \\\"The stock of every company formed under this article shall be deemed personal estate, and. shall be transferable in the manner prescribed by the by-laws of the company; but no shares shall be transferred until all previous calls thereon shall have been fully paid in.\\\" [Insurance Co. v. Goodfellow, 9 Mo. 150; Chouteau Spring Co. v. Harris, 20 Mo. 383; Moore v. Bank, 52 Mo. 377; Bank v. Richards, 74 Mo. 77, approving decision of Court of Appeals (6 Mo. App. 454) in same case; Wilson v. Ry. Co., 108 Mo. 588, 18 S. W. 286; Trust & Savings Co. v. Lumber Co., 118 Mo. 447, 24 S. W. 129.] \\\"It is evident that the Constitution (Art. XII, Sec. 15) makes no inhibition on the transfer of the stock of a corporation in other modes than the formal one upon its books, nor does the statute (Sec. 739, R. S. 1879, same as Sec. 9743, R. S. 1919) prohibit the usual method of transfer, to-wit, by the transfer of the certificate. The by-laws, it seems in this instance, make such prohibition; but the general current of authority admits the validity of transfers made outside of the books of the corporation, some adjudications holding that such transfer, though not recorded on the books, passes the legal title; and it is generally held that such regulations made in the by-laws are made for the benefit, protection and convenience of the corporation itself, and not for third parties, and that they do not incapacitate the stockholder from parting with his interest, and that his assignment, though not on the books, passes his entire title to the stock. This ruling appears to be in accordance with a custom generally if not universally prevalent in the commercial world; a custom which should not be lightly disturbed by the courts.\\\" [Wilson v. Ry. Co., supra, 108 Mo. l. c. 609, 18 S. W. l. c. 296.] Nor was it inconsistent with a valid trust for the settlor to reserve the right \\\"to change the manner, time and amounts of the payments\\\" to be made by the trustees, as provided in the deed of trust. [Kelley v. Snow, 185 Mass. 288.] Even the reservation of the power to revoke a trust does not render it invalid or change its character. [Sims v. Brown, Van Cott v. Prentice, Stone v. Hackett, Talbot v. Talbot, Kelly v. Parker, Lewis v. Curnutt, Nichols v. Emery, supra.] \\\"Although the power of revocation is reserved, the trust is as good and effectual as if irrevocable, until the power is exercised.\\\" [1 Perry on Trusts & Trustees (7 Ed.) 136, sec. 104.]\\nIII. In holding that a completely executed trust was created by the delivery of a dehd of trust and the certificates covering the 4,000 shares of stock of S. D. Rossi, Incorporated, we have answered the argument that the deed o'f trust is testamentary in character, \\\"a will masquerading as a deed.\\\" The settlor having reserved the net income of the trust property during his lifetime, the active duties of the trustees did not begin until after his death. But, such postponement of the active duties of the trustees and of the enjoyment of the trust estate by the beneficiaries other than the settlor does not change this instrument, otherwise a deed of trust, to an instrument testamentary in its nature. [Sims v. Brown, supra, 252 Mo. l. c. 67, 158 S. W. l. c. 627, and cases cited.] \\\"From its very nature a trust involves the idea of separation of the beneficial interest from the legal title. When a trust is executed by the delivery of a simple conveyance to' the trustee, that act and instrument serve to pass an immediate present interest to the cestui que trust, no matter how far in the future the enjoyment of the benefit thus provided may be deferred.\\\" [Lewis v. Curnutt, supra, 130 Iowa, l. c. 432.] \\\"A man may desire to make disposition of his property in his lifetime to avoid administra tion of his estate after death. Indeed, in view of the fact, both patent and painful, that the fiercest and most expensive litigation, engendering the bitterest feelings, springs up over wills, such a desire is not unnatural.1 And when it is given legal expression, as by gifts absolute during life, or by gifts in trust during life, or voluntary \\u2022 settlements, there is manifest, not only an absence of testamentary intent, but an absolute hostility to such intent. ' [Nichols v. Emery, supra, 109 Cal. l. c. 331; see, also, Van Cott v. Prentice, Kelly v. Parker, Innes v. Potter, supra.]\\nIV. It is argued that \\\"the grant attempts to pass the equitable title to Rossi's children for life, one-half the remainder to their surviving spouses for life, remainder over on the death of the last survivor'to the male children or descendants of Victor and Iiarvey then living, ' ' and violates' the rule against perpetuities because' the \\\"remainder over\\\" might be postponed beyond the limitation period (twenty-one years after a life in being at the time of the grant) by the interest \\\"for life\\\" of a surviving spouse of one of Rossi's children (or of his grandson, Harold Gr. Johnson), if such surviving spouse be born after the time of the grant. In support of this argument the administratrix makes two contentions: first, that in providing for \\\"the remainder over,\\\" or the termination of the trust, \\\"after the death of the last survivor of'said parties of the third part,\\\" the settlor intended to include surviving spouses of his children and grandson in the class of beneficiaries designated as \\\"said parties of the third part,\\\" and, second, that, even though the words, \\\"said parties of the third part,\\\" are not so construed, the same result is produced by the provision that the trustee shall, under certain .conditions, pay a certain sum of money to any such surviving' spouse \\\"for and during his or her life, and so long as he or she shall remain unmarried.\\\"\\n(a) In the first paragraph of the trust instrument the settlor's widow, ten children and grandson are designated, by their respective names, as \\\"parties of the third part.\\\" And, while the words \\\"parties of the third part\\\" are used in various provisions of the instrument, there is nothing within its four corners which indicates an intention to include in that designation any person or persons other than the settlor's widow and children and grandson. Surviving spouses of the settlor's children and grandson are mentioned in one provision only, which reads, in part:\\n\\\"After the'death of said Madeline Rossi (the settlor's widow) said parties of the second part (trustees), or their successors, shall, until the death of the last survivor of the parties of the third part, pay over to the remaining parties of the third part said net income in equal parts, share and' share alike, at least once each quarter (th\\u00e9n providing for children or other descendants of said parties of the third part), and in the event any of the parties of the third part die, either before or after the death of said Madeline Rossi, leaving surviving him or her no children, or descendants, but shall leave surviving a husband or wife with whom said party of the third part so dying shall have been actually living at the time of his or her death, then upon the death of such party of the third part, said parties of the second part shall pay to such surviving husband or wife of such deceased party of the third part for and during his or her life, and so long as he or she shall remain unmarried, one-half of the- share of said net income of said deceased party of the third part would have been entitled to had said party of- the third part not died (then providing that the other half of such share be paid to the other parties of the third part or their children or descendants in equal parts):\\\" (Our italics.)\\nImmediately following this' provision is the provision which reads:\\n\\\"After the death of the last survivor of said parties of the third part, said parties of the second part or their 'successors, shall assign, transfer and convey all of the property and money then in their hands to the male children or descendants of the parties of the third part, Victor D. Rossi and Harvey J. Rossi, then living, in -equal parts per stirpes.\\\" .,\\nIt will be noted that, in the provision, above quoted, relating to the distribution of the net income of the trust property after the death of the settlor's- widow, the settlor's children and grandson are referred to as \\\"the remaining parties of the third part,\\\" and as \\\"said parties of the third part,\\\" and as \\\"the parties of the third part,\\\" and a surviving spouse of any of the settlor's children or of his grandson is referred to as \\\"such surviving husband or wife of such deceased party of the third part;\\\" in other words, the settlor's children and grandson and their surviving spouses are provided for as two separate classes of beneficiaries. It is perfectly clear, therefore, that, in providing for the \\\"remainder over,\\\" or the termination .of the trust, \\\"after the death of the last survivor of said parties of the third part,\\\" the settlor did not intend, to include surviving spouses of his children and grandson among the persons designated as ' ' said parties of the third part, ' ' and the words \\\"said parties of the third part\\\" cannot be so interpreted.\\n(b) It will be noted also that the distribution of the net income of the trust property after the death of the settlor's widow is authorized only \\\"until the death, of the last survivor of the parties of the third part,\\\" and that surviving spouses of the parties of the third part have only a contingent interest in the income which is given, in the first instance, to the parties of the third part. Thus it is seen that the trust instrument provides for the termination of such payments of income and for the \\\"remainder over,\\\" or the termination of the trust, at the same time, that is, at the death of the last survivor of the parties of the third part. These two express provisions of the trust instrument plainly show, we think, that the settlor did not intend to provide for surviving spouses of deceased parties of the third part after the death of the last survivor of the parties of the third part, notwithstanding the provision for certain payments of income to a surviving spouse of a deceased party of the third part \\\"for and during his or her life, and so long as he or she shall remain unmarried,\\\" and we think that these provisions should be so construed. This construction is in harmony with the general objects of the trust and will uphold the validity of the trust. The construction for which the administratrix contends is in conflict with two express provisions of the trust instrument and will invalidate the trust. And, even though it be conceded that the instrument is fairly susceptible of both of these constructions, it is our duty to adopt the one which will not offend against the rule against perpetuities. [Gray on The Rule Against Perpetuities (3 Ed.) see. 633, p. 499; 1 Perry on Trusts and Trustees (7 Ed.) sec. 381, p. 638.]\\nIt follows that we do not agree with the administratrix in either of the contentions above mentioned, and that the trust instrument, as we construe it, provides for the \\\"remainder over,\\\" or the termination of the trust, upon the death of the last survivor of persons in being at the time of the creation of the remainder interests, whereas the limitation period includes an additional twenty-one years. [Gray on The Rule Against Perpetuities (3 Ed.) sec. 201, p. 174.]\\nV. This brings us to the final contention of the administratrix \\u2014that there is a failure of proof of the assignment of the 120 shares of stock of S. D. Rossi Grocery Company.\\nThat it was within the scope of the settlor's original plan to add other property to the original trust property is indicated by the provision therefor in the trust instrument, which he executed and delivered to the trustees on January 10, 1922. According to the testimony given by Victor D. Rossi in the probate court, which the administratrix put in evidence in the circuit court, he and his sister, Mae R. Haseman, have jointly held these shares of stock as trustees ever since November 5, 1925, about one month prior to the settlor's death, when the same were \\\"received\\\" from the settlor and came into their possession as trustees; and, at that time and immediately prior thereto, these shares of stock were owned by the settlor. As shown above in our statement of the evidence, the following indorsements appear on each of the eleven certificates covering these shares of stock:\\nOn the back of each certificate:\\n\\\"For Value Received, I hereby sell, assign and transfer unto Victor D. Rossi and Mae R. Haseman, Trustees, all the shares of the Capital Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint the Vice President to transfer the said Stock on the books of the within named Corporation with full power of substitution in the premises. Dated July 5, 1922.\\n\\\"In the presence of S. D. Rossi,\\n\\\"Mae R. Haseman. By V. D. Rossi,\\n\\\"Ten Cents U. S. Agent.\\n\\\"Revenue Stamp Canceled.\\\"\\nOp the face of each certificate:\\n\\\"Canceled and Certificate No. 19 issued in lieu hereof January 16th, 1925.\\n\\\"V. D. Rossi, Secretary.\\\"\\nFrom the indorsement on the back of each of said certificates, it may be reasonably inferred that the settlor wrote said indorse-ments, or caused the same to be written, on July 5, 1922, with the intention of signing said indorsements and of assigning these shares of stock to the trustees on that day, or sometime thereafter, as additional trust property. However, the signing of said indorsements or similar indorsements by the settlor was not essential to a valid assignment of these shares of stock. If the settlor delivered said certificates to the trustees on November 5, 1925, and intended thereby to assign these shares of stock to the trustees as additional trust property, the legal title to these shares of stock passed to the trustees at that time, subject to the terms and conditions of the trust instrument. From the indorsement on the face of each of said certificates, it appears that these shares of stock were transferred on the books of S. D. Rossi Grocery Company to the trustees on January 16, 1926, about one month and ten days after the death of the settlor. The trust instrument expressly authorized the trustees to transfer the 4,000 shares of stock of S. D. Rossi, Incorporated, on the books of the company after the death of the settlor, and it provides that the trustees shall hold additional trust property \\\"under the same conditions and with the same powers\\\" as are declared therein with reference to the property thereby conveyed. If the 120 shares of stock of S. D. Rossi Grocery Company were assigned to the trustees by the settlor on November 5, 1925, as additional trust property, then, by virtue of the above-mentioned provisions of the trust instrument, the trustees were vested with the power, at the time of such assignment, to transfer these shares of stock on the books of the company after the death of the settlor. The trust instrument further provides that \\\"the fact that additional property shall have been delivered and conveyed to the parties of the second part (trustees) shall be noted by an addition to this instrument made at tbe time of said delivery and conveyance;\\\" and, so far as the record shows, no such addition to the trust instrument was made at the' time of the alleged delivery and conveyance of these shares of stock to the trustees. But, in our opinion, a failure to note a conveyance of additional trust property by an addition to the trust instrument would not invalidate such a conveyance. And the evidence, as we view it, is sufficient to support the finding that the settlor delivered the eleven certificates covering the 120 shares of stock of S. D. Rossi Grocery Company to the trustees, intending thereby to assign these shares of stock to the trustees as additional trust property, and that he did thereby assign these shares of stock to the trustees as additional trust property, subject to the terms and conditions of the trust instrument.\\nIt is well settled that a completely executed voluntary trust will be enforced. Indeed, courts are ever anxious to carry out the intention of parties as manifested by their deeds or declarations of trust.\\nThe circuit court was fully warranted in its findings of fact and clearly right in its conclusions of law. The judgment is accordingly affirmed.\\nDavis and Cooley, CC., concur.\\nPER CURIAM:\\n'The foregoing opinion by HeNWOod, C., is a-d\\u00f3pted as the opinion of the court.\\nBlair, P. J., and White, J., concur; Walker, J., absent.\"}"
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+"{\"id\": \"8843457\", \"name\": \"THE STATE v. JAMES R. WILLARD, Appellant\", \"name_abbreviation\": \"State v. Willard\", \"decision_date\": \"1909-05-18\", \"docket_number\": \"\", \"first_page\": \"721\", \"last_page\": \"726\", \"citations\": \"219 Mo. 721\", \"volume\": \"219\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T22:45:10.268609+00:00\", \"provenance\": \"CAP\", \"judges\": \"Burgess and Fox, JJ., concur.\", \"parties\": \"THE STATE v. JAMES R. WILLARD, Appellant.\", \"head_matter\": \"THE STATE v. JAMES R. WILLARD, Appellant.\\nDivision Two,\\nMay 18, 1909.\\n1.INDICTMENT: Insufficient: Omission of Word Feloniously. Every offense which by statute is made a felony must be charged to have been feloniously done, and a failure to charge that it was feloniously done is fatal.\\n2. -: -: -: Forgery. An indictment which charges that defendant James R. Willard \\u201cdid then and there wilfully and unlawfully forge, counterfeit and falsely make and alter a certain check purporting to be made by one P. M. Willard, under the name of P. M. Willard, on/\\u2019 etc., is fatally defective for that it does not charge that the forgery was fel-oniously done, defendant\\u2019s punishment being assessed by the verdict at five years\\u2019 imprisonment in the penitentiary.\\n3. -: -: -: -: With Intent Feloniously to Injure. And the indictment Having failed to charge that defendant feloniously forged the check, is not saved by the fact that it charges that the forgery was done \\u201cwith intent then and there feloniously to injure and defraud, against the peace and dignity of the State.\\u201d That is not a sufficient charge of a felony.\\n4. FELONY: What Is? The term \\u201cfelony\\u201d when used in the statute means any offense for which the offender on conviction will he liable by law to be punished with death or by imprisonment in the penitentiary, and no others. It is an offense for which the offender on conviction may be imprisoned in the penitentiary, and not only one for which upon conviction he must be imprisoned in the penitentiary.\\nAppeal from Howell Circuit Court. \\u2014 How. W. N. Evans, Judge.\\nREVERSED AND REMANDED.\\nElliott W. Major, Attorney-G-eneral, and John M. Atkinson, Assistant Attorney-General for the State.\\n(a) The first count of the information is sufficient in form and substance. It is drawn under Sec. 2001, R. S. 1899. If the word \\u201cfeloniously\\u201d appeared just after the word \\u201cwilfully\\u201d in the first part of the information, it would a,ppear better as to form, yet this count charges that the forgery and alteration were done \\u201cwith the intent then and there feloniously to injure and defraud, against the peace and dignity of the State.\\u201d The element essential is to charge that the forgery and alteration were done with a felonious intent. This is plainly done. State v. Brown, 104 Mo. 371; State v. Snell, 78 Mo. 240; State v. Cunningham, 154 Mo! 179; State v. Boyle, 28 Iowa 522; State v. Has-seltine, 130 Mo. 468; Sherwood\\u2019s Crim. Law, pp. 345, 346; Kelley\\u2019s Crim. Law (2 Ed.), sec. 773 ; 3 Words and Phrases, p. 2730; Carroll v. State, 71 Ark. 403; State v. Halpin, 91 N. W. 605. (b) It is held that the term \\u201cfeloniously\\u201d is a description of the grade of the.offense rather than the criminal act which constitutes the offense. State v. Parker, 172 Mo. 206; State v. Scott, 109 Mo. 232. (c) The objection urged by appellant is technical in the extreme. He regards form all and disregards substance and intent. The information clearly charges that the forgeiy and alteration were done with a felonious intent, and this is sufficient, (d) In the first part of the information it is.charged that appellant \\u201cdid then and there willfully and unlawfully forge, counterfeit and falsely make,\\u201d etc. In State v. Parker, 106 Mo. 224, it is said, \\u201cAn unlawful intent to kill would he a felonious intent.\\u201d Chinn v. State, 68 Ind. 425.\", \"word_count\": \"1583\", \"char_count\": \"9207\", \"text\": \"GANTT, P. J. \\u2014\\nThis is an appeal from a judgment and sentence of the circuit court of Howell county.\\nOn the 31st of July, 1907, the prosecuting attorney of Howell county filed in the circuit court of said county an amended information in three counts charging the defendant in the first count with having made and altered a certain check on the 31st day of May, 1907, under the name of F. M. \\\"Willard, payable to one Hamon Judd, on the First National Bank of West Plains, Missouri, for the sum of twenty dollars, dated May 29, 1907. The second count charged the defendant with having sold, exchanged and delivered said forged and altered check to said bank, and the third count charged him with having made, altered and forged said check by which a pecuniary demand and obligation was purported to be created. The defendant was tried at the December term of the Howell Circuit Court, and found guilty under the first count of said information, and his punishment assessed at five years imprisonment in the State penitentiary. After unsuccessful motions for new trial and in arrest of judgment, he appealed to this court.\\nThe first count of the information is in these words:\\n\\\"J. L. Bess, prosecuting attorney within and for the county of Howell, in the State of Missouri, for his amended information, informs the court that one James R. Willard, on the 31st day of May, A. D. 1907, at the said county of Howell, did then and there willfully and unlawfully forge, counterfeit and falsely make and alter a certain check purporting to he made by one F. M. Willard, under the name of F. M. Willard, on the First National Bank of West Plains, a corporation duly incorporated and existing under the laws of the United States, payable to one Hamon Judd, or bearer, for twenty dollars, and dated May 29, 1907; which said false, forged, counterfeit and altered check of the tenor following;\\nFIRST NATIONAL BANK,\\nNo.-. West Plains, Mo., May 29, 1907.\\nPay to Hamon Judd, or bearer, twenty dollars ($20.00)\\nF. M. WrLLAKD.\\nWith intent'then and there, feloniously to injure and defraud, against the peace and dignity of the State.\\\"\\nAs the court submitted the case to the jury on the first count only, it is not necessary to notice the other two counts. In his motion for a new trial and in arrest of judgment, the defendant challenged the sufficiency of the first count in the information, on the ground that he was not charged with having \\\" feloniously\\\" forged and falsely made said check, and this presents the one important question in this case. In State v. Murdock, 9 Mo. l. c. 740, Judge Scott, speaking for this court, said: \\\"Every offense, which is made a felony by statute, must be charged to have been done feloniously, whether it was a felony by common law or not. The word 'feloniously' is indispensably necessary in all indictments for felony, whether statutory or by common law. ' ' In State v. Deffenbacher, 51 Mo. 26, it is said: \\\"The term 'felony,' when used in the statute, is 'construed to mean any offense for which the offender, on conviction, shall be liable, by law, to be punished with death or imprisonment in the penitentiary, and no others.' This provision was construed in the ease of Johnston v. State, 7 Mo. 183, and it was held that a statutory felony is an offense for which a party, on conviction, may be imprisoned in the penitentiary, and not where, on conviction, he must be-so imprisoned. It is the settled law of this State that an offense which is made a felony by statute, whether it were a felony at common law or not, must be charged to have been committed feloniously. [State v. Murdock, 9 Mo. 739.] The word 'feloniously' is indispensably necessary in all indictments for felony.\\\" This doctrine has never been departed from in any subsequent decision of this court. The offense denounced in-section 2001, Revised Statutes 1899, under which the information in this case is drawn, is forgery in the second degree and forgery in the second degree, by section 2024, Revised Statutes 1899, is punishable by imprisonment in the penitentiary not less than five or more than ten years. The Attorney-General urges that this indictment is sufficient, because, while it does not charge that the defendant \\\"feloniously\\\" forged the said check, it does charge that he made the same \\\"with intent then and there feloniously to injure and defraud, against the peace and dignity of the State, \\\" and cites in support of his contention State v. Brown, 104 Mo. l. c. 371, in which this court, speaking of the-necessity of using the word \\\"feloniously\\\" in instructions, says: \\\"It is not necessary that the court should-use the word 'feloniously' in the instructions,' \\\" and', also State v. Hesseltine, 130 Mo. 468, in which the indictment is in practically the same form as this count: of the indictment. A reference to that case will show that the sufficiency of this count of the indictment was-not passed upon in that case. But neither of these: cases reaches the error in this inf,ormation, and neither of them can be held- to have overruled or changed the well settled law announced in the cases which we have cited.\\nIn onr opinion this count of tlie information upon which the defendant.was convicted is fatally defective, and tlie circuit court erred in overruling the motion in arrest of judgment. Indeed, in the absence of such a motion under the well established practice of this court, we are bound to look to the indictment, and if found fatally defective, reverse the judgment. The judgment of the circuit court of Howell county is reversed and the cause remanded, and in the meantime the prisoner will be remanded to jail, or if on bail, held to answer another indictment or information if the prosecuting attorney shall elect to further prosecute.\\nThe judgment is reversed and the cause remanded to be proceeded with as herein directed.\\nBurgess and Fox, JJ., concur.\"}"
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+"{\"id\": \"8988155\", \"name\": \"In the Matter of the CARE AND TREATMENT OF Andre COKES, Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"Care & Treatment of Cokes v. State\", \"decision_date\": \"2005-12-13\", \"docket_number\": \"No. WD 64455\", \"first_page\": \"281\", \"last_page\": \"286\", \"citations\": \"183 S.W.3d 281\", \"volume\": \"183\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T21:09:20.670304+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: HARDWICK, P.J., BRECKENRIDGE and SPINDEN, J.J.\", \"parties\": \"In the Matter of the CARE AND TREATMENT OF Andre COKES, Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"In the Matter of the CARE AND TREATMENT OF Andre COKES, Appellant, v. STATE of Missouri, Respondent.\\nNo. WD 64455.\\nMissouri Court of Appeals, Western District.\\nDec. 13, 2005.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied Jan. 31, 2006.\\nApplication for Transfer Denied Feb. 28, 2006.\\nEmmett D. Queener, Columbia, MO, for appellant.\\nNicole L. Loethen, Jefferson City, MO, for respondent.\\nBefore: HARDWICK, P.J., BRECKENRIDGE and SPINDEN, J.J.\", \"word_count\": \"2281\", \"char_count\": \"14440\", \"text\": \"LISA WHITE HARDWICK, Judge.\\nAndre Cokes appeals from a judgment committing him to the Department of Mental Health (DMH) as a sexually violent predator (SVP). Cokes contends the evidence was insufficient to support the SVP determination, and that the probate court erred in excluding his rebuttal evidence. Finding no error, we affirm the judgment.\\nFactual and Procedural History\\nCokes was convicted in 1979 of attempting to sodomize an eleven year-old boy. He served time in prison and was paroled in 1981. In 1983 and 1985, he was convicted of raping two women. Just prior to his scheduled release from prison in August 1999, the State filed a petition to commit Cokes to the DMH as a \\\"sexually violent predator\\\" pursuant to Section 632.486.\\nFollowing a jury trial, the probate court entered judgment granting the petition. This court reversed the judgment and remanded for a new trial due to instructional error and the State's failure to establish a necessary element of proof. In re Care & Treatment of Cokes, 107 S.W.3d 317 (Mo.App.2003). At the second jury trial, Cokes was again found to be a SVP and was, therefore, committed to the DMH. Cokes appeals from the Judgment and Commitment Order.\\nSufficiency of the Evidence\\nIn his first point on appeal, Cokes contends there was insufficient evidence to support the jury's finding that he is a sexually violent predator. Our review of the sufficiency of the evidence applies the same standard of review as in criminal cases. Amonette v. State, 98 S.W.3d 593, 600 (Mo.App.2003). We view the evidence in a light most favorable to the jury verdict, disregarding all contrary evidence and inferences. Id. We must determine whether the evidence was sufficient for twelve reasonable jurors to have believed beyond a reasonable doubt that Cokes is a SVP. Id. The verdict should not be reversed unless there is a \\\"complete absence of probative faet[s]\\\" to support the jury's conclusion. Smith v. State, 148 S.W.3d 330, 335 (Mo.App.2004).\\nUnder Missouri law, a SVP is defined as a prior sexual offender \\\"who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.\\\" \\u00a7 632.480(5). The statute further defines a mental abnormality as \\\"a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses.\\\" \\u00a7 632.480(2). The condition must be severe enough that it causes the person \\\"serious difficulty in controlling his behavior.\\\" Thomas v. State, 74 S.W.3d 789, 791 (Mo. banc 2002). To make a submissible case for civil commitment, the State was required to prove beyond a reasonable doubt that Cokes met the definition of a SVP.\\nCokes argues the State failed to prove that he has a mental abnormality that renders him more likely than not to engage in predatory acts of sexual violence. Although the State presented evidence of his past criminal behavior, Cokes contends the State did not prove that he is prone to act violently due to a sexual compulsion. Proof of serious difficulty in controlling one's behavior is a key factor that distinguishes the dangerous sexual offender, whose mental abnormality subjects him to civil commitment, from the dangerous, but typical, criminal recidivist. Id.\\nAt trial, the State presented two psychiatrists, Dr. Bradley Grinage and Dr. Jay Englehart, who testified that Cokes suffers from multiple mental abnormalities that predispose him to commit sexual violence in the future. Cokes presented two psychologists, Dr. Steven Mandracchia and Dr. Robert Prentky, who concluded that he does not have a mental abnormality and is not a SVP. The jury heard all of evidence and afforded greater weight and credibility to the testimony of the State's experts in determining that Cokes met the definition of a SVP. The fact finder's credibility determinations are entitled to deference as we review the record for the limited purpose of considering whether the evidence supports the Judgment and Order of Commitment. See In re Care & Treatment of Johnson, 161 S.W.3d 873, 877 (Mo.App.2005).\\nDr. Grinage testified that he conducted a SVP evaluation in December 2003, during which he met with Cokes and reviewed his extensive medical and legal records. Based on the evaluation, Dr. Grinage concluded, to a reasonable degree of medical certainty, that Cokes suffers from three mental disorders: paraphilia \\\"not otherwise specified\\\" (NOS), psychotic disorder NOS, and antisocial personality disorder.\\nDr. Grinage explained that paraphilia is a sexual disorder characterized by recurrent urges or behaviors that involve the suffering or humiliation of another person, including having sex with children or other non-consenting adults. Paraphilia involving non-consenting persons falls into the general category of paraphilia NOS, unlike other types of paraphilia, such a pedophilia, that are more specifically categorized.\\nDr. Grinage based his diagnosis of para-philia NOS on the three incidents of non-consensual sex for which Cokes was convicted and incarcerated: his attempted sodomy of an 11-year-old boy in 1979, his forcible rape of an 18-year-old woman in 1981, and his forcible rape of a 25-year-old woman in 1982. In questioning Cokes about why he committed the crimes, Dr. Grinage noted that Cokes appeared to lack any insight about his motivation. Cokes admitted to Dr. Grinage that he \\\"was definitely out of control\\\" at the time of the three incidents.\\nThe diagnosis of psychotic disorder NOS was based on Dr. Grinage's collective assessment of Cokes' schizophrenic reaction to drugs in 1976, his two admissions to a psychiatric hospital in 1976, his paranoid delusions noted during his incarceration, the thought formation problems and thought derailment he experienced in therapy prior to medication, and his dramatic response to anti-psychotic medications.\\nDr. Grinage noted additional incidents that supported the diagnosis of Antisocial Personality Disorder: Cokes' multiple arrests, beginning at the age of 10, for fighting, truancy, and sale of drugs; his attendance at a school for children with behavioral disorders; his assault of a young woman during his adolescence; his multiple violations for drug and alcohol abuse during his incarcerations; and his aggression toward others at the Missouri Sexual Offender Treatment Center before he was medicated.\\nThe combination of these psychotic disorders led Dr. Grinage to conclude that Cokes has serious difficulty controlling his behavior. He observed that Cokes committed two rapes while he was on parole for his first offense of attempted sodomy. Cokes knew he was being monitored but admittedly was unable to restrain himself from the violent sexual attacks. Dr. Gri-nage testified to a reasonable degree of medical certainty that Cokes' mental abnormality of paraphilia with psychosis makes him \\\"more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility.\\\"\\nDr. Englehart is a senior psychiatrist who treated Cokes at the Missouri Sexual Offender Treatment Center (MSOTC). He agreed with Dr. Grinage's diagnosis of paraphilia NOS, although his own treatment with Cokes did not progress far enough to make that definitive diagnosis. During the treatment program, Dr. Engle-hart diagnosed Cokes as having thought disorder, a mild form of paranoid schizophrenia, and psychotic disorder NOS.\\nDr. Englehart observed Cokes during episodes of paranoia and thought disorder that caused Cokes to believe the general policies at MSOTC were directed at him personally. Cokes reacted with angry outbursts in which he threatened staff and other residents. Dr. Englehart prescribed Zyprexa, an antipsychotic medication. Cokes was initially resistant to taking it, but once the medication began in June 2001, his behavior improved. Dr. Engle-hart opined that Cokes' response to the medication supports his diagnosis of psychotic disorder. Despite some improvement, however, Cokes was still involved in isolated incidents of assaults on staff and residents even while medicated.\\nDr. Englehart testified that Cokes' psychotic disorder contributed to his commission of sexual offenses. He stated unequi-vocably that Cokes must continue his medication to manage his behavior. However, because Cokes refuses to acknowledge his psychotic disorder, Dr. Englehart believes it is unlikely he would stay on his medication if he is not retained in a structured environment. Dr. Englehart concluded that Cokes \\\"is not safe to be at large.\\\"\\nCokes made no effort to challenge the expert qualifications of Dr. Grinage and Dr. Englehart at trial. Nor was there any objection to the underlying data or facts presented in support of the opinions rendered by these psychiatrists. As such, the expert testimony was clearly admissible, and it was the jury's duty to assess and weigh the reasonableness of the opinions in light of all the evidence. State v. Butler, 24 S.W.3d 21, 25-26 (Mo.App.2000).\\nThe testimony of Dr. Grinage and Dr. Englehart was sufficient to establish that Cokes has one or more mental abnormalities that make him more likely than not to engage in predatory acts of sexual violence if he is not confined in a secure facility. The expert opinions made the necessary connection between the nature of Cokes' paraphilia/psychotic order and his propensity to commit sexual assaults even under supervised release conditions. Viewed in a light most favorable to the judgment, the evidence established beyond a reasonable doubt that Cokes' mental condition is severe enough that it causes him serious difficulty in controlling his behavior. The jury could reasonably rely on this expert evidence in determining that Cokes is a sexually violent predator, as defined in Section 632.480(5). Point I is denied.\\nExclusion of Evidence\\nIn Point II, Cokes contends the probate court erred in excluding evidence regarding his proposed medication arrangements in the event he was released from secure commitment. The court rejected Cokes' attempt to present evidence that a psychiatrist would provide prescriptions after his release and a family member would aid him in securing and taking any medication prescribed. Cokes argues the evidence was relevant to the jury's determination of whether he was likely to engage in predatory acts of sexual violence if not confined in a secure facility.\\nA trial court has considerable discretion in determining whether evidence should be admitted or excluded. Lewis v. State, 152 S.W.3d 325, 330 (Mo.App.2004). We will reverse only when the exclusion of evidence shocks the sense of justice or indicates an absence of careful consideration. Id. Even then, we will not reverse unless the error had a material effect on the merits of the action. Id.\\nPrior to trial, Cokes requested the probate court to exclude evidence regarding any treatment or medication that would be available if he was or was not committed to a secure facility. The court thereafter made multiple pretrial rulings that neither party could present evidence of what will happen to Cokes depending upon whether he is committed or released.\\nAt trial, both of the State's experts testified that Cokes needed to stay on his medication in order to have any hope of controlling his behavior. Dr. Grinage also testified that Cokes would most likely stop taking the medication if released from commitment. Cokes did not object to Dr. Grinage's testimony, but he sought to present rebuttal evidence that a psychiatrist and a family member would assist him in maintaining a post-release medication regimen. After an offer of proof, the court excluded the evidence based on its pretrial ruling.\\nThe evidentiary exclusion was consistent with our analysis in Lewis, a similar SVP case. In that case, the sexual offender, James Lewis, sought to cross-examine his former probation and parole officer to show that he would still be under supervised probation even if he were released following the SVP hearing. Id. at 330. The probate court disallowed the cross-examination, despite Lewis' argument that the evidence was relevant in the jury's determination of whether he would be likely to commit sexually violent acts if released from confinement. Id. On appeal, we agreed with the probate court, finding that the primary question in a SVP case is whether the offender \\\"suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility.\\\" Id. at 332 (citation omitted). \\\"The question is not whether some external constraints make it less likely that [the offender] would engage in such acts.\\\" Id. Accordingly, we held that evidence regarding the nature of any post-release supervision is irrelevant to the jury's determination in a SVP case. Id.\\nCokes argues that his case is distinguished from Lewis because he did not seek to present evidence about potential supervision if released. He contends the evidence regarding his medication arrangements would have allowed the jury to consider whether he has a mental disorder that leaves him unable to pursue treatment voluntarily and, therefore, makes him more likely to re-offend with violent sexual acts.\\nWe disagree that the evidence had any relevance in determining the existence of a mental disorder. The record clearly establishes that Cokes sought to introduce the testimony of a prescribing psychiatrist and a family member in order to show that he had support structures in place to help him remain medically compliant during any period of release. These are precisely the type of \\\"external constraints\\\" that Lewis deemed irrelevant in a SVP proceeding. The probate court did not abuse its discretion in excluding the evidence. Point II is denied.\\nThe Judgment and Commitment Order is affirmed.\\nAll concur.\\n. All statutory references are to Missouri Revised Statutes 2000 unless otherwise noted.\"}"
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+"{\"id\": \"8993965\", \"name\": \"AQUILA, INC., Appellant, v. MOWOOD, LLC, and Omega Pipeline Company, Respondents\", \"name_abbreviation\": \"Aquila, Inc. v. Mowood, LLC\", \"decision_date\": \"2006-01-31\", \"docket_number\": \"No. WD 64970\", \"first_page\": \"770\", \"last_page\": \"771\", \"citations\": \"182 S.W.3d 770\", \"volume\": \"182\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:52:00.190914+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge and JOSEPH M. ELLIS, Judge.\", \"parties\": \"AQUILA, INC., Appellant, v. MOWOOD, LLC, and Omega Pipeline Company, Respondents.\", \"head_matter\": \"AQUILA, INC., Appellant, v. MOWOOD, LLC, and Omega Pipeline Company, Respondents.\\nNo. WD 64970.\\nMissouri Court of Appeals, Western District.\\nJan. 31, 2006.\\nJoseph M. Rebein, Jason E. Pepe, Co-Counsel, Kansas City, MO, for appellant.\\nJohn M. Edgar, Daniel R. Young, Co-Counsel, Kansas City, MO, for respondents.\\nBefore RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge and JOSEPH M. ELLIS, Judge.\", \"word_count\": \"163\", \"char_count\": \"1022\", \"text\": \"ORDER\\nPER CURIAM.\\nAquila, Inc. appeals from a judgment entered in the Circuit Court of Jackson County finding in favor of the defendants, Mowood, L.L.C. and Omega Pipeline Company, in a breach of contract action filed by Aquila. After a thorough review of the record, we conclude that the judgment is supported by substantial evidence, is not against the weight of the evidence, and that no error of law appears. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.\\nJudgment affirmed. Rule 84.16(b).\"}"
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+"{\"id\": \"9154584\", \"name\": \"Nancy Lin Asheton BLAIR, Respondent, v. William Jeremy BLAIR, Appellant\", \"name_abbreviation\": \"Blair v. Blair\", \"decision_date\": \"2004-11-09\", \"docket_number\": \"No. WD 62929\", \"first_page\": \"882\", \"last_page\": \"887\", \"citations\": \"147 S.W.3d 882\", \"volume\": \"147\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:25:03.561160+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge, and LISA WHITE HARDWICK, Judge.\", \"parties\": \"Nancy Lin Asheton BLAIR, Respondent, v. William Jeremy BLAIR, Appellant.\", \"head_matter\": \"Nancy Lin Asheton BLAIR, Respondent, v. William Jeremy BLAIR, Appellant.\\nNo. WD 62929.\\nMissouri Court of Appeals, Western District.\\nNov. 9, 2004.\\nTroy L. Daugherty, Kansas City, MO, for appellant.\\nJames D. Boggs, Kansas City, MO, for respondent.\\nBefore JAMES M. SMART, JR., Presiding Judge, JOSEPH M. ELLIS, Judge, and LISA WHITE HARDWICK, Judge.\", \"word_count\": \"2326\", \"char_count\": \"14243\", \"text\": \"JOSEPH M. ELLIS, Judge.\\nWilliam Jerry Blair (Husband) appeals from a judgment entered in the Circuit Court of Platte County denying his petition for annulment of his marriage to Nancy Blair (Wife). For the following reasons, we affirm.\\nIn July 1976, Husband and Wife had sexual intercourse on one occasion after having worked together for a couple of years. At that time, Wife was married to Jim Farra and was also involved in a longstanding sexual relationship with Sam Kelly-\\nSubsequently, Wife gave birth to a son, Devin, on April 26, 1977. Husband visited Wife in the hospital shortly after Devin's birth, but did not discuss the paternity of the child with her and had no further contact with Wife until 1979.\\nIn January 1979, Wife contacted Husband, told him that he was Devin's father, and asked whether he had any history of disease in his family that might affect Devin later in life. Husband met with Wife and Devin, and he resumed a sexual relationship with Wife a few days later. In March 1979, Wife separated from Mr. Far-ra and filed a petition for dissolution of that marriage. Subsequently, Wife became pregnant with Husband's child, and on March 13,1980, Wife gave birth to their daughter, Oralin.\\nWife's marriage to Mr. Farra was dissolved in December 1980. Several days after her divorce from Mr. Farra became final, Husband and Wife were married on December 22, 1980. Husband later adopted both Devin and Oralin.\\nOn November 20, 2001, Wife filed a petition for dissolution of her marriage to Husband. Husband filed his answer and cross-petition on December 26, 2001.\\nOn April 11, 2002, Husband filed an amended answer and cross-petition requesting that the marriage be annulled. In support of his annulment claim, Husband averred that Wife had fraudulently represented to him before their marriage that he was Devin's father and had thereby induced him to marry her. Subsequent testing proved that Husband was indeed not Devin's father and that he was the son of Sam Kelly.\\nThe trial court heard the matter on November 25, 2002. On January 8, 2003, the trial court entered its judgment denying Husband's petition for an annulment and dissolving the marriage between Husband and Wife. Husband filed a motion for new trial on February 5, 2003. On May 5, 2003, the trial court denied Husband's motion for new trial and entered its Amended Judgment and Decree of Dissolution of Marriage.\\nIn its amended judgment, like the initial judgment, the trial court denied Husband's request for an annulment. In support of its denial of an annulment, the court found: (1) that Wife had believed that Devin was Husband's son during their courtship and at the time of marriage; (2) that Husband would have married Wife even if he had known the representation to be false and that the representation was not material to his decision to marry her; (3) that Husband did not detrimentally rely upon Wife's statement; (4) that Wife did not intend for her representation about Devin's paternity to be relied upon by Husband; (5) that even if the marriage had been the result of a misrepresentation related to Devin's paternity, Husband faded to prove any damages, actual or punitive, resulting from the alleged misrepresentation; (6) that Husband had \\\"unclean hands\\\" sufficient to deny equitable relief because Husband had fraudulently represented to Wife that he loved her prior to marriage; and (7) Husband was precluded from equitable relief because of the doctrine of laches based upon the fact that Husband failed to take any action toward the paternity of Devin, even though at times he questioned Devin's paternity. Husband brings five points on appeal challenging the trial court's denial of his petition for annulment.\\nThis Court's standard of review in any court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Riverside-Quindaro Bend Levee Dist. v. Missouri Am. Water Co., 117 S.W.3d 140, 146 (Mo.App. W.D.2003). \\\"The judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.\\\" Eckhoff v. Eckhoff, 11 S.W.3d 619, 622 (Mo.App. W.D.2002) (citing Murphy, 536 S.W.2d at 32). In making these determinations, this Court must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Stuckmeyer v. Stuckmeyer, 117 S.W.3d 687, 690 (Mo.App. E.D.2003).\\nIn reviewing a court-tried case, \\\"[t]his court's primary concern is 'with the correctness of the trial court's result, not the route taken by the trial court to reach that result.' \\\" Eckhoff, 71 S.W.3d at 622 (quoting Business Men's Assurance Co. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999)). \\\"Therefore, this court will affirm the judgment if it is 'cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient.' \\\" Id. (quoting Graham, 984 S.W.2d at 506). Accordingly, we will affirm the trial court's decision to deny Husband's request for an annulment if that decision was proper for any of the reasons set forth by the court or if it was proper for any reason.\\n\\\"The annulment of a marriage voids the marriage ab initio.\\\" Eyerman v. Thias, 760 S.W.2d 187, 189 (Mo.App. E.D.1988). \\\"In the eyes of the law it is as if the marriage never existed.\\\" Id. \\\"[A]n-nulment of marriage is the exception and not the rule, and must be granted only upon extraordinary facts.\\\" Woy v. Woy, 737 S.W.2d 769, 774 (Mo.App. W.D.1987). \\\"[T]he burden of proving the invalidity of a marriage rests upon him who asserts such invalidity, and a marriage will not be declared invalid except upon clear, cogent and convincing proof.\\\" In re Marriage of Burnside, 777 S.W.2d 660, 664 (Mo.App. S.D.1989).\\nAs grounds for granting an annulment, Husband asserted that Wife perpetrated a fraud upon him regarding Devin's paternity. In order to establish fraud, Husband was required to plead and prove the following elements: (1) a representation by Wife; (2) its falsity; (3) its materiality; (4) Wife's knowledge of its falsity or ignorance of its truth; (5) Wife's intent that the representation be acted upon by Husband; (6) Husband's ignorance of the falsity of the representation; (7) Husband's reliance on the truth of the representation; (8) Husband's right to rely on the representation; and (9) that Husband sustained consequent and proximate injury. Charley v. Fant, 892 S.W.2d 811, 812 (Mo.App. W.D.1995). Moreover, \\\" '[p]ublie policy demands that integrity of the marriage contract be preserved so far as possible, and fraud necessary to avoid a marriage must be such as is deemed vital to the marriage relationship.' \\\" Woy, 737 S.W.2d at 772.\\nIn its judgment, the trial court found that Wife's representations as to Devin's paternity were not material to Husband's decision to marry her and that Husband would have married her even if he had known that those representations were false. In one of his points on appeal, Husband contends that these findings are not supported by sufficient evidence and are against the weight of the evidence.\\nHusband notes that he testified at trial that he would not have married Wife if he had known that he was not Devin's father and contends that the trial court was required to accept that testimony as true. In making this assertion, Husband disregards our standard of review, which requires this court to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the judgment and to disregard all evidence and inferences to the contrary. Stuckmeyer, 117 S.W.3d at 690. 'We defer to the trial court where there is conflicting evidence, and will affirm the judgment even if there is evidence which would support a different conclusion.\\\" McAllister v. McAllister, 101 S.W.3d 287, 290 (Mo.App. E.D.2003).\\nBecause the trial court is in a better position to assess such factors as sincerity, character, and other intangibles that are not apparent in a trial transcript, we must defer to the trial court's determinations related to the credibility of the witnesses. Id. at 290-91. \\\" 'The trial judge has absolute discretion as to the credibility of witnesses and the weight of their testimony is a matter for the trial court, and its findings on witness credibility are never reviewable by the appellate court.'\\\" Id. at 291 (quoting Milligan v. Helmstetter, 15 S.W.3d 15, 24 (Mo.App. W.D.2000)). \\\"The trial court is free to accept or reject all, part, or none of the testimony of a witness. And, it may disbelieve testimony even when it is uncontra-dicted.\\\" Id. (internal citations omitted).\\nAccordingly, the trial court was not required to accept Husband's own self-serving testimony that he would not have married Wife but for her representations related to Devin's paternity. Indeed, the overall gist of Husband's testimony appears to have been that he would never have seen Wife again after their one-night-stand if it had not been for her calling and telling him that he had a child and that the marriage was, therefore, the result of that representation. Such testimony does not establish that Husband relied upon the representations regarding Devin's paternity in deciding whether to marry Wife, only that it played a part in his decision to begin a relationship with her.\\nSufficient evidence in the record supports the trial court's determination that Husband would have married Wife regardless of the representation as to Devin's paternity. Wife testified that Husband was crazy about her and that she was certain that he would have left his girlfriend and had a relationship with her regardless of Devin's paternity. Husband admitted on cross-examination that, during the two-year courtship the couple had between Wife's initial phone call and their marriage, he fell in love with Wife. In addition, nine months before their marriage, Oralin, who is undisputedly Husband's child, was born. The trial court could reasonably have inferred that Ora-lin's paternity would have been sufficient to cause Husband to marry Wife. Furthermore, testimony from both Husband and Wife reflects that Husband had questions about Devin's paternity prior to marriage, that he married her anyway, and that he subsequently adopted both children.\\nBased upon the foregoing testimony, the trial court could more than reasonably have found that Husband would have married Wife regardless of Wife's representations related to Devin's paternity. Such a finding is supported by sufficient evidence and is not against the weight of the evidence. Point denied.\\nHaving determined that this ground for the trial court's denial of Husband's request for an annulment is not erroneous, we need not address Husband's remaining points related to the trial court's other grounds for its decision. See Eckhoff, 71 S.W.3d at 622 (noting that this court must affirm the trial court's judgment if \\\"cognizable under any theory\\\").\\nThe judgment is affirmed.\\nAll concur.\\n. In the trial court's decree dissolving Husband and Wife's marriage, the court granted Wife's request that her name be changed from Nancy Blair back to Nancy Asheton.\\n. Appellant cites to Gross v. Gross, 96 Mo.App. 486, 70 S.W. 393 (E.D.1902), and Marre v. Marre, 184 Mo.App. 198, 168 S.W. 636 (E.D.1914), for the proposition that this court's review of an annulment action is essentially de novo, allowing this court to review both the facts and the law. Husband fails to note that the standard of review for equitable actions has evolved in the case law over the past century. Under present case law, review of a court-tried equity action is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Droz v. Trump, 965 S.W.2d 436, 440 (Mo.App. W.D.1998); Pelligreen v. Wood, 111 S.W.3d 446, 450 (Mo.App. E.D.2003); Asbury v. Crawford Elec. Co-op., Inc., 51 S.W.3d 152, 156 (Mo.App. S.D.2001) (\\\"The standard of review mandated by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), for court-tried cases is applicable in both actions at law and in equity.\\\"). Murphy specifically provides \\\"that in 'suits of an equitable nature . the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.' \\\" McBee v. Gustaaf Vandecnocke Revocable Trust, 986 S.W.2d 170, 173 (Mo. banc 1999) (quoting Murphy, 536 S.W.2d at 32). That is the standard that must be applied to this case.\\n. \\\"Compelling considerations of common sense and public policy support the principles that the presumption of validity of a marriage is one of the strongest known to the law[,] . that the burden of proving the invalidity of a marriage rests upon him who asserts such invalidity and, that a marriage will not be declared invalid except upon clear, cogent and convincing proof.\\\" Forbis v. Forbis, 274 S.W.2d 800, 806 (Mo.App. S.D.1955) (internal citations omitted).\\n. '[A]ny fact issue upon which no specific finding is made shall be considered as having been found in accordance with the result reached.\\\" McAllister v. McAllister, 101 S.W.3d 287, 290 (Mo.App. E.D.2003).\\n. We gratuitously note that the record does contain evidence supporting the trial court's other factual findings. Wife testified that she sincerely believed, from the time she called Husband until well into the marriage, that, based upon Devin's physical characteristics, Husband was Devin's father. Furthermore, Wife testified that the reason she had called Husband was to obtain a family health history in case Devin had need of it in the future and to let Husband know he had a son. She specifically testified that she had no expectations as to how Husband would act upon hearing about Devin.\"}"
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+"{\"id\": \"963209\", \"name\": \"The State v. Punshon, Appellant\", \"name_abbreviation\": \"State v. Punshon\", \"decision_date\": \"1896-03-03\", \"docket_number\": \"\", \"first_page\": \"44\", \"last_page\": \"59\", \"citations\": \"133 Mo. 44\", \"volume\": \"133\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T19:22:16.481492+00:00\", \"provenance\": \"CAP\", \"judges\": \"Gantt, P. J., and Sherwood, J., concur.\", \"parties\": \"The State v. Punshon, Appellant.\", \"head_matter\": \"The State v. Punshon, Appellant.\\nDivision Two,\\nMarch 3, 1896.\\n1. Criminal Practice: special judge: statute. The power of the members of the bar to elect a special judge, under Revised Statutes 1889, section 3323, depends solely on the failure of the regular judge to procure another in his stead, and the fact that he made no effort to do so is immaterial.\\n2. -: murder: juror, competency OF. Where, on a trial for murder, a juror states on his voir dire that he is in sympathy with the defendant and can not render a fair and impartial verdict without being influenced by what he has read in the newspapers and the opinion he has formed, he is rightly rejected as incompetent.\\n3. -:-: -. One who states that he has no such conscientious scruples as would prevent him from finding a verdict of guilty in a ease where the punishment is death, but that he would have such scruples if the evidence were wholly circumstantial, is not a competent juror.\\n4. -: --: evidence. Evidence that the deceased had threatened to commit suicide is inadmissible on a trial for murder.\\n5. -: -:-. Evidence to prove the disordered condition of the mind of deceased is inadmissible on a trial for murder.\\n6. -: remarks of counsel: harmless error. It is not reversible error for prosecuting counsel to say that a certain \\u201cnote is competent evidence if not objected to,\\u201d though on a former appeal it had been held inadmissible.\\n7. -: MURDER: evidence: res gestae. Evidence that after the deceased had been removed to the house of defendant\\u2019s brother, defendant held her head, and before she died called her by name and asked her to tell him how she was shot, is not competent as part of the res gestae.\\n8. -: -: -: dependant\\u2019s cross-examination. Where the defendant has testified on direct examination all about the homicide, inquiries made on cross-examination as to statements made by him before the- coroner in regard to matters to which he had testified on direct examination are admissible.\\n9. -: -: expert testimony. Where it is not shown that a witness in a murder case is an expert in regard to the use of firearms, his testimony for the purpose of showing that defendant could not have fired the fatal shot is not admissible.\\n10. -: -: evidence. An offer to prove a witness\\u2019s malice and ill-will toward defendant by showing that she had defaced a picture of him, is inadmissible as being too remote and uncertain..\\n11. -: -: instruction. An instruction that the legal presumption of defendant\\u2019s innocence is intensified by the fact that defendant is accused of killing his wife is not made less favorable to him by the addition by the trial court of the words \\u201c provided the jury believe that they were friendly and that their relations were such as usually exist between husband and wife,\\u201d where defendant claimed that deceased and he had lived happily together.\\n12. -: -: remarks op counsel. It is not error to permit , counsel for the state to say to the jury, without being reprimanded: \\u2018'Other men have killed their wives and children; it has been done many times before; it is no new thing.\\u201d\\nAppeal from Buchanan Criminal Court. \\u2014Benjamin J. Casteel, Esq., Special Judge.\\nAppiemed.\\nTories <& Tories and Huston \\u00e9 Parrish for appellant.\\n(1) The court was not legally organized as the judge of the criminal court did not endeavor, and hence did not fail, to secure the judge of some other circuit. Stalling v. Thomas, 18 S. W. Eep. 184; Taylor v. Mason, 9 Wheat. 344. (2) The court erred in excusing the jurors Imbrie and Gray. They were both competent. . (3) The state in this case contends that the defendant killed the deceased. The theory of the defendant is that the deceased committed suicide. One of these contentions is true. The evidence in the case was purely circumstantial; anything, therefore, tending to prove either contention, or that was calculated to throw any light on the manner of her death, was competent evidence. State v. Moxley, 102 Mo. 382; State v. Leuts, 45 Minn. 177; Stewart v. State, 19 Ohio, 302; State v. Graham, 46 Mo. 490; State v. Sloan, 47 Mo. 604; State v. McNally, 87 Mo. 644; State v. Kennedy, 121 Mo. 405; 1 Stark, Ev. [6 Ed.] 64. (4) The court erred in refusing to permit defendant to prove the. disordered state of deceased\\u2019s mind at, and prior to, the time of her death, and in rejecting the evidence offered by defendant for that purpose. State v. Ludwig, 70 Mo. 412; State v. Young, 119 Mo. 495; State v. Leabo, 84 Mo. 168; Boyd v. State, 14 Lea (Tenn.), 161; Blackburn v. State, 23 Ohio St. 146; State v. Kring, 64 Mo. 591; Hall v. State, 21 S. W. Rep. (Tex.) 368. This proof could only be made by the acts and declarations of the deceased, apd the evidence offered tended to establish this fact. State v. Kring, 64 Mo. 591. This proposition is so well settled that we deem further citations of authority unnecessary. (5) The court erred in permitting counsel for the state to prove that there was a note found on the deceased, and in permitting them, in the presence of a jury, to identify the same and offer it as evidence, and in permitting counsel to state, in presence of jury, without rebuke, when the note was identified, that it was competent evidence unless objected to. State v. Crow, 107 Mo. 341; State v. Trott, 36 Mo. App. 29; State v. Young, 99 Mo. 682; State v. Jaelcson, 95 Mo. 623; State v. Ulrich, 110 Mo. 350; State v. Woolard,. Ill Mo., 248; Haynes v. Trenton, 108 Mo. 123; State y. Evans, 124 Mo. 397. (6) The statements and dec larations of the defendant at his brother\\u2019s house shortly after deceased was shot, while holding his wife\\u2019s head and before she died, was legitimate evidence, and the court erred in excluding it. State v. Young, 119 Mo. 515; Harriman v. Stowe, 57 Mo. 93; State v. Sloan, 47 Mo. 604; State v. Gabriel, 88 Mo. 631; Leahey v. Railroad, 97 Mo. 165; State v. Castor, 93 Mo. 243; State v. Matthews, 98 Mo. 125; State v. Crawford, 115 Mo. 620; Harper v. Morse, 114 Mo. 325; State v. Moore, 22 S. E. Rep. 1086. (7) The court erred in permitting counsel for the state to read parts of the evidence of the defendant, taken at the coroner\\u2019s inquest. State v. Lewis, 118 Mo. 79; Peebles v. McHon, 15 N. Y. 384; Wood v. State, 3 8. W. Rep. (Tex.) 336; State v. Martin, 28 Mo. 530; 1 G-reenl. Ev., secs. 463, 464,465; Prewitt v. Martin, 59 Mo. 325. (8) The court erred in refusing to permit Dr. Reynolds to give his opinion as to the position the hand that held the pistol was in at-the time the deceased was shot, and in rejecting the evidence of Mr. Bachellor-to the same effect. Any evidence that the defendant could not have so held the pistol, or that the deceased committed suicide, was clearly competent. State v. Young, 119 Mo. 511; State v. Patrick, 107 Mo. 175; State v. Parker, 96 Mo. 382; Eyerman v. Sheehan, 52 Mo. 222; State v. Knop, 45 N. H. 148; State v. Mahan, 68 Iowa, 304. (9) The court erred in refusing to permit defendant to cross-examine state\\u2019s witnesses, Mrs. Windisch and Ollie Cooper,' as to their ill-feeling toward defendant. State v. Jones, 106 Mo. 302; State v. Leabo, 84 Mo. 168;' People v. Brooks, 30 N. E. Rep. 189; Schultz v. Railroad, 89 N. Y. 242; Stark v. People, 5 Den. 106; Gale v. Railroad, 76 N. Y. 594; Tucker v.- Welsh, 17 Mass. 160; Martin v. Barnes, 7 Wis. 206; Stewart v. Kind el, 25 Pac. 990; State v. Peel, 14 Minn. 35; State v. Collins, 33 Kan. 77. (10) The court erred in excluding as evidence the defaced picture of the defendant, and the evidence offered by the defendant in connection therewith, tending to show that the picture was defaced by state\\u2019s witnesses, Mrs. Windisch and Ollie Cooper. This evidence tended to show the malice and ill-will borne the defendant by them and was competent for that purpose. See authorities next above. (11) The court erred in allowing counsel for the state, in his closing argument to the jury, to state, without being reprimanded by the court, while arguing the presumptions of law, that wife murder was not a new thing; \\u201cThat other men had killed their wives and children.\\u201d State v. Woolard, 111 Mo. 248; State v. Ulrich, 110 Mo. 350; State v. Warford, 106 Mo. 55; State v. Young, 105 Mo. 641; State v. Moxley, 102 Mo. 394.\\nB. F. Walker, attorney general, and Morton Jourdan, assistant attorney general, for the state.-\\n(1) Judge Casteel was properly elected special judge; the statute provides only two prerequisites, viz.: First, the inability of the judge for any cause to hold the term; and, second, his failure to procure another judge. (2) The court did not err in its rulings on the evidence. (3) Nor in the giving and refusing of instructions. (4) The trial court did not err in permitting the questions asked of defendant by the state on cross-examination. State v. Avery, 113 Mo. 499. (5) The remark of the counsel for the state that \\u201cother men had killed their wives and children; it has been done many times before; it is no new thing\\u201d was entirely legitimate. (6) The supreme court will not reverse the judgment because the verdict is against the weight of the evidence. State v. Fisher, 124 Mo. 462; State v. Young, 119 Mo. 495; State v. Banks, 118 Mo. 117; State v. Punshon, 124 Mo. 448.\", \"word_count\": \"5001\", \"char_count\": \"27949\", \"text\": \"Burgess, J.\\nThis is the second appeal by the defendant in this case. On the first trial he was convicted of manslaughter of the first degree and on his appeal the judgment of the court below was reversed and the cause remanded for new trial. The case is reported in 124 Mo. 448, to which reference may be had for full statement of the material facts connected with the homicide. Such additional facts as may be necessary to a full understanding of the case will be stated in course of the opinion.\\nOn the last trial defendant was convicted of murder in the first degree.\\nI. At the March term, 1895, of the criminal court of Buchanan county, Missouri (the term at which the last trial was had), the judge of said court, Honorable Silas Woodson, being unable to hold said term by reason of indisposition, Hon. B. J. Casteel was elected by the members of the bar of said court, special judge to hold said term, which he proceeded to do, after having taken the requisite oath, etc.\\nThe point was made in the court below, and insisted upon in this court, that the trial court was not legally authorized, and that the special judge was without authority to try the case. This contention is predicated on the fact that it was not shown that the regular judge had ever tried to procure another judge to hold the term and had failed, and that it is only under such circumstances that a special judge can be elected by the members of the bar to hold any, term, or part of term, of court.\\nBy section 3323, Revised Statutes, 1889, it is provided that \\\"whenever the judge, from any cause, shall be unable to hold any term or part of term of court, and shall fail to procure another judge to hold said term or part of term the attorneys of the court who are present, but not less in number than five, may elect one of its members then in attendance having the qualifications of a circuit judge, to hold the court for the occasion.\\\" The record recites that \\\"said Silas Woodson, judge of this court, has failed to procure another judge to hold said term; it is ordered by the clerk that an election be held,\\\" etc. The power of the members of the bar to elect a special judge to hold the term in no way depended o.n the efforts of the regular judge to procure another judge for that purpose, but his failure to do so; nonaction on his part in this regard, as shown by the record, authorized the election.\\nThe election seems to have been in compliance with the statute and in every way regular.\\nII. Of the special venire of one hundred men summoned by the sheriff of the county in obedience to the order of the court, from which forty qualified jurors from whom twelve were to be selected to try the case, two of them, D. L. Gray and J. T. Imbrie were challenged by the state for cause, and excused over the objection and exception of defendant. The contention is, that they were competent to serve in the case, and error was committed in excusing them.\\nThey were both sworn to answer questions touching their qualification to sit in judgment in the case. Gray in the course of his examination was interrogated, and answered as follows:\\n\\\"Q. Is your mind in such condition at this time that you can hear the evidence in this case, and the instructions of the court as to the law, and return a fair and impartial verdict for both the state and the defendant, without reference to what you have read in the newspaper, or any opinion you have formed from it? A. No, sir; it is not.\\n\\\" Q. You think you could not give the party and the state a fair trial, and lay aside everything you have heard before? You think you would be influenced by that? What do you say to that? A. Well, I think there would be something in the way; yes, sir, I do.\\n' ' Q. Have you now any opinion as to the guilt or innocence of this defendant? A. Well, sir, I am in sympathy with the defendant.\\n\\\"Q. Can you go on the jury in this case, and render a fair and impartial verdict, according to the law and the evidence, without being influenced or prejudiced toward either party, by what you have read and the opinion you have formed? A. I couldn't do it, I don't believe.\\\"\\nThis juror was clearly incompetent, and the court correctly so held. He not only stated that he had formed an opinion as to the guilt or innocence of the defendant from newspaper reports and hearsay, but he also stated that he was in sympathy with the defendant, and that he could not render a fair and impartial verdict, according to the law and the evidence, without being influenced or prejudiced by what he had read and the opinion he had formed.\\nWhile the formation of an opinion by a juror from newspaper reports and rumors, as to the guilt or innocence of the accused, which it would require evidence to remove, does not render him incompetent as a juror, provided the court be satisfied that such opinion will readily yield to the evidence in the case, and the juror is in condition of mind to pass on the issues under the evidence free from bias, yet when it further appears that the juror's opinion is fixed and will not yield to the evidence adduced, he is not an impartial juror and is manifestly incompetent.\\nImbrie, on his examination, after having stated that he had no such conscientious scruples as would prevent him from finding a verdict of guilty in a ease where the punishment is death if under the law and evidence he believed the accused guilty beyond a reasonable doubt, further stated, in substance, that if the evidence of the guilt of the accused was altogether circumstantial he would have conscientious scruples and would not find a verdict of guilty. By the statute persons whose opinions are such as to preclude them from finding any defendant guilty of an offense punishable with death, are incompetent to sit as jurors in any such case, and it matters not whether the evidence of guilt be positive or circumstantial. This juror clearly came within the inhibition of the statute, and was properly excused by the court.\\nIII. Another insistence is that the court erred in refusing to admit evidence tending to show that deceased was an expert with a pistol, and threats made by her to take her own life.\\nThe court in passing upon these questions did but follow the rule announced by this court in its former opinion in this case. But we are now asked to reconsider and overrule that decision because it is claimed to be in conflict with \\\"the overwhelming weight of authority.\\\" In the recent case of State v. Fitzgerald, 130 Mo. 407, we had occasion to review, at the expense of much time and labor, the authorities upon those questions, which leave no room for doubt in our minds as to the correctness of that decision. The weight of authority, is decidedly adverse to defendant's contention, and we therefore adhere to our former ruling.\\nIV. It is also insisted that the court erred in refusing to permit defendant to prove the disordered condition of deceased's mind at and prior to the time of her death, and in rejecting evidence offered by defendant for that purpose.\\nA number of authorities, including decisions of this court, are cited in support of this contention, but an examination of them will show that not one of them has the slightest tendency to do so. Many of them hold that the condition of the .mind of the accused at the time of the commission of the offense might be shown; for instance, that he was insane or the condition of his mind was such that he was not responsible for his acts, but none of them go so far as to hold that the condition of the mind of the deceased was any justification or excuse for taking his life. Nor can we conceive of any case of homicide where such evidence would be admissible, unless it be where the killing is done in self-defense, and under such conditions the aggressor was a dangerous person. The evidence was clearly inadmissible in this case.\\nV. Dr. .Reynolds, a witness for the state, having testified without objection that he found a letter in the bosom of the dress of deceased shortly after the homicide, was permitted to state, over the objection and exception of defendant, that a note which was then shown to him in the presence of the jury, was the same note. The ground of the objection is that the note was not competent evidence. It was not then offered in evidence, but was later on during the trial, when defendant objected, and his objection sustained. It is now contended that the conduct and statements of counsel for the state with respect of the note were calculated and intended to prejudice the minds of the jury against defendant.\\nWhile the remarks of counsel for the state to the effect that \\\"the note was competent evidence if not objected to\\\" were out of place, especially when he must have known that the same note had been ruled by this court to be inadmissible as evidence when the case was here before, we do not feel that we would be justified in reversing the judgment on that ground. It is not every slight indiscretion committed by counsel during the trial of a cause, even when human life is at stake, that will justify a reversal of a judgment of conviction.\\nVI. Defendant offered evidence tending to show that after deceased had been shot, removed from the carriage, taken to the house of the brother of defendant, and while lying on the bed, that he was holding her head, and before she died he called her by name, and asked her to tell him how she was shot. It was not proposed to show what the dying woman said, but what the defendant said to her. Upon objection by counsel for the state the evidence was excluded, and' this ruling is assigned for error.\\nThese statements were not a part of the res gestae, and clearly not admissible on any other ground. They were no part of the transaction, shed no light upon the homicide, and were at most mere self-serving statements of the defendant and inadmissible for any purpose. State v. Beard, 126 Mo. 548; State v. Nocton, 121 Mo. 537; State v. Smith, 114 Mo. 406.\\nVII. It further ' appears that defendant testified before the coroner and the jury of inquest with respect to the homicide, and also as a witness in his own behalf on the trial of this case. On his cross-examination by counsel for the state, he was asked, over the objection and exception of his counsel, if he had not made certain statements before the coroner with respect to the homicide. The principal objections were that defendant had been induced to testify before the coroner under the promise of Norris, assistant prosecuting attorney for the county, that his statements then made could not be used for nor against him on his trial for the homicide, and that his statement befo re the coroner should be shown to him, and he be given an opportunity to read it before being required to answer the questions.\\nHe admitted having made some of the statements attributed to him, but did not say which. The state did not read or offer to read this statement nor any part of it, for the purpose of contradicting him, nor did defendant ask that it or any part of it might be read. Defendant had testified all about the homicide on his examination in chief, and questions propounded to him on his cross-examination with respect to statements made by him before the coroner or elsewhere in regard to matters to which he had testified in chief on the trial were proper. He was, however, entitled to have his entire statement before the coroner read to the jury had he desired it. State v. Talbott, 73 Mo. 347; Prewitt v. Martin, 59 Mo. 325; 1 Greenleaf, Ev., sec. 462; Wilherson v. Eilers, 114 Mo. 245. This statement made by him was voluntary. He was informed before doing so that he might do so or not, just as he chose, and the fact that the assistant prosecuting attorney stated to him at the time that it would , not be used against him did not render it involuntary, or deprive the state of the right to cross-examine him with respect thereto.\\nVIII. After Dr. Reynolds had testified that he could not state what position the arm was in that fired the fatal' shot, at the time, he was again asked the same or similar questions, and on objection by the state was not permitted to answer.\\nThere was no error in this ruling. It was in the discretion of the court whether the witness should answer the same question more than once.\\nNor was there error committed in refusing to permit the witness Bachellor to testify as to his experi ments with a revolver, that defendant could not have fired the shot which caused Mrs. Punshon's death, and that the wound was self-inflicted. There is no claim that this witness was an expert in regard to such matters. This contention is, we think, untenable.\\nIX. Upon the cross-examination of Ollie Cooper, a witness for the state, defendant proposed to prove by her for the purpose of showing her ill will and malice and that of Mrs. Windisch, another witness, against defendant, that Ollie Cooper took a number of pictures from Mrs. Windisch's, and that the face of defendant was defaced, the paper torn from across his eyes and face; and the picture of Miss Addie Grillispie in the same group, was also defaced, and another picture between the two undisturbed. That the pictures were not defaced when they were taken to Mrs. Windisch's; and that Mrs. Windisch and witness defaced them. The state objected to the introduction of this evidence and the court sustained the objection.\\nThat the accused had the right to show on cross-examination of these witnesses, their feelings against him, and to that end might show expressions of ill will or malice by them toward him, as well also as any specific acts on their part indicative of such malice, seems to be well settled law. People v. Brooks, 30 N. E. Rep. 189; Schultz v. Railroad, 89 N. Y. 242; Gale v. Railroad, 76 N. Y. 594; Tucker v. Welsh, 17 Mass. 160; Martin v. Barnes, 7 Wis; 239; Stewart v. Kindel, 25 Pac. Rep. 990; State v. Dee, 14 Minn. 35; State v. Collins, 33 Kan. 77; State v. McFarlain, 6 South. Rep. 728; Pettit v. State, 34 N. E. Rep. 1118.\\nSuch inquiries are usually with reference to threats of violence, or expressions tending to show ill will or malice, and must not be too remote. As we said in Schulte v. Railroad, supra, \\\"the evidence to show the hostile feelings of a witness when it is alleged to exist should be direct and positive, and not very remote and uncertain, for the reason that the trial of the main issues in the case can not be properly suspended to make out the case of hostile feeling by mere circumstantial evidence from which such hostility or malice may or may not be inferred.\\\" See, also, People v. Brooks, 30 N. E. Rep. 189.\\nMalice or ill will toward defendant from the defacement of the picture of defendant, was a mere matter of speculation, depending for its probative force upon the intention with which it was done, if intentionally, and such inquiry entirely too remote. There must of necessity be a limit to such inquiry, which rests somewhat in the discretion of the court.\\nFor these considerations we are not of the opinion that the judgment should be reversed because of the ruling on that question. Moreover, the evidence of Miss Cooper and Mrs. Windisch shows throughout their prejudice against the defendant, which could not have been misunderstood by the jury, and the fact that his picture had been defaced by them, if proven, could not have made it more emphatic.\\nX. It is unnecessary to say more with respect to the action of the court in permitting witness Norris to testify as to what was said by him to defendant at the coroner's inquest about defendant's making a statement, and that the same was made voluntarily, than that there was no prejudicial error committed by this ruling.\\nXI. The action of the court in refusing the fifth instruction as asked by defendant, then modifying it and giving it as modified, is also criticised. It is as follows:\\n\\\"The court instructs the jury that the law presumes the defendant innocent of the offense charged and innocent of any offense; and in this case this pre sumption of innocence acquires additional force because the defendant is accused of killing his wife and that in consequence of the marital relation existing between them, the' law adds to the general presumption of innocence the further presumption that he would not kill his wife [provided the jury believe that they were friendly and that their relations were such as usually exist between husband and wife], and these presumptions go with him throughout the trial and remain and abide with him until they are met and overcome by competent evidence that proves the defendant guilty beyond all reasonable doubt, therefore unless the jury believe from the evidence that the state has met and overcome both these presumptions by evidence which proves that the defendant did shoot and kill his wife, beyond all reasonable doubt; that is, that the state has proved in this case that the defendant did shoot and kill his wife, by evidence of such convincing character as to force the minds of the jurors to no other reasonable conclusion than that he did shoot and kill her, then these presumptions of innocence demand at the hands of the jury the defendant's acquittal and in that case the jury are bound to find him not guilty.\\\" The words in brackets were added by the court.\\nWithout expressing an opinion as to whether this instruction ought to be given- in any case (because unnecessary to do so) it was certainly very favorable to defendant, and the words added by the court only made it more so, if defendant and deceased lived happily and peacefully together as contended by him. We do not think that the modification destroyed its force, but, under the evidence, added thereto. Certain it is he had no cause to complain of it as given.\\nXII. A final contention is that the court erred in allowing counsel for the state, in his closing argument to the jury to state, without being reprimanded, \\\"Other men have killed their wives and children, it has been done many times before. It is no new thing.\\\" It is not unfrequently a difficult matter to draw the dividing line between what is and what is not legitimate and proper argument to a jury in cases of this character, but nothing should be allowed, calculated to prejudice the accused in the minds of the jury, not warranted by the evidence, facts in proof, or common knowledge. State v. Emory, 79 Mo. 463; State v. Hopkirk, 84 Mo. 278; State v. Musick, 101 Mo. 260. To say that men have killed their wives and children, is but stating that which everyone knows, and was-not, we think, improper. There was nothing in the remark to furnish any valid ground of complaint.\\nWe are unable to see any reversible error in the record and the judgment is affirmed.\\nGantt, P. J., and Sherwood, J., concur.\"}"
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+"{\"id\": \"966195\", \"name\": \"Cline v. Brooks, Administrator, Appellant\", \"name_abbreviation\": \"Cline v. Brooks\", \"decision_date\": \"1877-04\", \"docket_number\": \"\", \"first_page\": \"61\", \"last_page\": \"63\", \"citations\": \"65 Mo. 61\", \"volume\": \"65\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:55:32.341687+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"Cline v. Brooks, Administrator, Appellant.\", \"head_matter\": \"Cline v. Brooks, Administrator, Appellant.\\n1. Practice, change of, effect on pending suit: appeal, defective WHEN TAKEN, VALIDATED BY SUBSEQUENT ENACTMENT. Where, by a statute in force at the time of the trial of a cause, certain steps were required to be taken in case of appeal; but between the taking of the appeal and the filing in the appellate court of the transcript in said cause, an act is passed dispensing with this requirement, the appeal is not invalidated by the fact' that in taking and prosecuting it the appellant has failed to comply with the requirement.\\n2. Appeal, when perfected. An appeal is not perfected till the transcript is filed in the appellate court.\\nAppeal from Cass Circuit Court.\\u2014Hon. E. T.Wrigiit, Judge.\\nHall & Givan for appellant.\\nThe transcript of the record and proceedings in the Common Pleas Court was not filed in the circuit clerk\\u2019s office till the 26th day of March. That court did not in any manner become possessed of the case until that day. Wag. Stat. 120 \\u00a7 8. Before that, the act of March 17th had become a law (Sess. Acts 1873 pp. 145 to 148); it repealed the former act and authorized trial de novo in the Circuit Court.\\nR. O. Boggess and C. W. Sloan for respondent.\\nI. There being no motion for a new trial, or in arrest of judgment, filed in said Common Pleas Court; no exceptions saved or error assigned and apparent on the face of the record, it was the duty of the Circuit Court to have affirmed the judgment of said Common Pleas Court. Davis v. Ware, 57 Mo. 460; Clarkson v. Staunchfield, lb. 573; Brown v. Foote, 55 Mo. 178; State ex rel. v. County Court, 51 Mo. 522; State v. Batchelor, 15 Mo. 208 ; Christy\\u2019s adrwr. v. Meyers, 21 Mo. 112; London v. King, 22 Mo. 336; Walsh v. Allen, 50 Mo. 181; Shaw v. Potter, Id. 281; Van Cleve v. Gilstrap, Id. 412; Moore v. Turner, 19 Mo. 642 ; Bonnott et al. v. Party et al., 59 Mo. 98; Hoppe v. Stone, 39 Mo. 378; McCraw v. Hubble, 61 Mo. 107; 27. S. v. Gamble, 10 Mo. 459.\\nII. This cause was tried February 21st, 1873, and on the same day judgment was rendered, an affidavit for an appeal was filed and appeal granted. From that moment the Common Pleas Court ceased to have any control over the case, and, to all intents and purposes, it thereafter belonged to the Circuit Court. The amendatory act was approved March 17th. It must be held to be prospective in its operations only. State ex rel. v. Thompson, 41 Mo. 25.\", \"word_count\": \"740\", \"char_count\": \"4105\", \"text\": \"Sherwood, C. J.\\nThe plaintiff had a claim allowed against the estate of Cline, in the Cass Common Pleas, on the 21st day of February, 1873, and on the same day the administrator appealed to the Circuit Court, but the trans-script was not filed in the latter court until the 26th of March next thereafter. On the 7th day of July, 1873, the Circuit Court, on the ground that no bill of exceptions, &c., had been filed in the lower court, and no assignment of errors, &c., in that court, dismissed the appeal. After vainly endeavoring to reinstate the cause, the defendant comes here by writ of error.\\nThe court erred in dismissing the appeal; and the cases of Schulenburg v. Evans, admr. (59 Mo. 41), and McCraw v. Hubble, admr. (61 Mo. 107), are without here, for the reason: section 23 of the act approved March 4th, 1867, (laws 1867, p. 88) made no distinction between appeals taken, or writs of error sued out, whether relating to probate or other matters; and so it was ruled in Schulenburg v. Evans, admr., supra; but that section was greatly modified by the amendatory act which took effect March 17th, 1873, the 19th section of which provides that in \\\"probate cases, where the appeal shall be perfected, the Circuit Court shall proceed to try the case novo.\\\" And long before the appeal was perfected, the act of March 17th took effect, making it imperative on the Circuit Court to try the cause anew. And it makes no difference, in consequence of the amendatory act referred to, -whether exceptions were saved in the Common Pleas Court or not.\\nBecause of the error committed in dismissing the appeal, the judgment is reversed and the cause remanded.\\nAll concur.\\nReversed.-\"}"
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+"{\"id\": \"966239\", \"name\": \"Harlan v. St. Louis, Kansas City & Northern Railway Co., Appellant\", \"name_abbreviation\": \"Harlan v. St. Louis, Kansas City & Northern Railway Co.\", \"decision_date\": \"1877-04\", \"docket_number\": \"\", \"first_page\": \"22\", \"last_page\": \"27\", \"citations\": \"65 Mo. 22\", \"volume\": \"65\", \"reporter\": \"Missouri Reports\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:55:32.341687+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harlan v. St. Louis, Kansas City & Northern Railway Co., Appellant.\", \"head_matter\": \"Harlan v. St. Louis, Kansas City & Northern Railway Co., Appellant.\\n1. Railroads: dangerous crossing : vigilance required of company and tiie public. Where a railroad company has a dangerous crossing in a crowded city, it must exercise a degree o\\u00ed care to avoid injuring persons and property commensurate with the danger of accident; on the other hand, persons using such a crossing must exercise care and watchfulness commensurate with the danger to which they are exposed.\\n2. Negligence. The fact that defendant has been guilty o\\u00ed negligence, , followed by an accident, does not make him liable for the resulting injury, unless that was occasioned by the negligence.\\n3. Contributory Negligence. Notwithstanding the injured part> may have been guilty of contributory negligence, a railroad company is still liable for the injury if it could have been prevented by the exercise of reasonable care on the part o\\u00ed the company after discovery of the danger in which the injured party stood, or if the company failed to discover the danger through its own recklessness or carelessness, when the exercise of ordinary care would have discovered it and averted the calamity.\\n4. ---. Where the undisputed evidence showed that the negligence of the deceased contributed directly to produce his death, and that it was not possible alter he placed himself in danger to prevent the accident, the railroad company is not liable.\\n5. ---. The acts of the deceased amounted to negligence per se.\\n6. -Practice : verdict : evidence. Where there is no evidence to support the verdict, the Supreme Court will reverse the judgment.\\nOn Motion for Rehearing.\\nThe case will be found reported and tbe facts stated in 64 Mo. 480.'\\nWaters & Winslow with G. F. Rothwell, for the motion.\\nI. The prevailing rule in this State is that the question of negligence is peculiarly for the jury, and when- there is any evidence, however slight, to sustain the verdict, this court cannot under the precedents interfere. There was such evidence here. Kennedy v. N. Mo. R. R. Go. 36 Mo. 351; Meyers v. Pacific R.R. 40 Mo. 151; Biddy v. St. Louis R. R. Go. 40 Mo. 506 ; Meyer v. Peoples\\u2019 Rwy. 43 Mo. 523 ; Barton v. St. L. I. M. R. R. 52 Mo. 253; Kennadye v. Pacific R. R. 45 Mo. 255 ; Tabor v. Mo. Valley R. R. 46 Mo. 453; Broion v. PEann. and St. Joe R. R. 50 Mo. 461; Smith v. Union Rwy. Go. 61 Mo. 588; EEicks v. Pacific R. R. 64 Mo. 430.\\nII. When the plaintiff acts under peculiar and complicated circumstances, or when his view of the danger is obstructed, or when the facts are undisputed, but different minds might honestly draw different conclusions from them, the question of contributory negligence is exclusively for the jury to determine; and when the jury have exercised this function the verdict must stand, whatever may be the opinion of the court as to its correctness. Broion v. R. R. Co. 32 N.Y. 597 ; Beisiegel v. R. R. Co. 34 N.Y. 622 ; Krnst v. R. R. 39 N. Y. 61; S. C. 35 N. Y. 9 ; Davis v. R. R. 47 N. Y. 400 ; Weber v. R. R. 58 N. Y. 451; Massoth v. Gcmal Go. 64 N. Y. 524 ; Gaynor v. R. R. 100 Mass. 208 ; Chaffee v. R. R. 104 Mass. 108 ; Mayo v. R. R. 104 Mass. 137 ; Wheelock v. R. R. 105 Mass. 203 ; Prentiss v. Boston' 112 Mass. 43; Williams v. Grealy Lb. 79; French v. R. R. 116 Mass. 537 ; Craig v. R. R. 118 Mass. 431; Penna. R. R. v.Weber 76 Pa. St. 157; Weiss v. R. R. 79 Pa. St. 387; New Jersey R. Go. v. West 4 Vroom 430; Penna. R. R. v. Matthews 7 Vroom 531; D., L. $ W. R. R. v. Toffey 9 Vroom 525; Central R. R. v. Moore 4 Zab. 824; R. R. Go. v. Stout 17 Wall. 663.\", \"word_count\": \"1831\", \"char_count\": \"10454\", \"text\": \"Henry, J.\\nThe motion for rehearing is based upon the following grounds: First\\u2014That the court overlooked material facts in the record, showing the peculiar and complicated circumstances surrounding the killing of Harlan, and in overlooking said facts applied a rule of law not otherwise applicable. Second\\u2014That the judgment of this court is in direct conflict with the case of Jeff. D. Hicks v. The Pacific Railroad 64 Mo. 430, and with other cases heretofore decided by this court.\\nThe facts which it is assumed were overlooked are, that the accident occurred in a crowded city, where the defendant had an intricate combination of. tracks, side-tracks and switches, almost in constant use, and where the public had a right to expect extraordinary care to prevent accidents. These facts were not overlooked, and we recognize the rule that, under the circumstances stated, the company must exercise a degree of care to avoid injuring persons and property commensurate with the danger of the occurrence of such accidents. Rut it seems that the counsel do not, as we do, recognize a correspondent obligation on the part of the public to exercise care and watchfulness in crossing a railroad track at such a point, commensurate with the danger to which persons crossing the track there are exposed. The increased care exacted of the company on the one hand, and of the public on the other, is equal, and leaves the question of liability of the company to an adult person of sound mind, in the enjoyment of the senses of sight and hearing, dependent upon the rules applicable if the accident had occurred at any other point on the road.\\nThe evidence that the deceased was guilty of negligence contributing directly to cause his death, is uncontradicted. The undisputed facts constitute direct contributory negligence. The case at bar is not like that of Jeff. D. Hicks v. The Pacific R. R. Co. 64 Mo. 430, with which counsel think the judgment herein is in conflict. The defence in that case was that Hicks was a trespasser, and that, therefore, the company owed no duty to him. We held otherwise, and that whether a trespasser or not made no difference, if by the exercise of ordinary care' the defendant could have avoided injuring him. There was evidence that he was guilty of negligence contributing directly to produce the injury, but there was also evidence to the contrary. There was also a conflict of evidence as to the negligence of the defendant, but those issues, in proper instructions, were submitted to the jury, and if this court had reversed the judgment, it could have been on no other ground than that the verdict was against the weight of evidence.\\nIn the case we are considering, the judgment was not reversed because the verdict was against the weight of evidence, but because there was no evidence to support it. But counsel insist that, aside from Harlan's want of care, the question still remained whether the company could have prevented the accident by the observance of due care, as well as what amounted to due care under the circumstances, and that these propositions are necessarily submitted to the jury in this class of cases, viz: First\\u2014Was the defendant guilty of negligence ? Second\\u2014Was the plaintiff guilty of negligence contributing directly to the result ? Third\\u2014Notwithstanding the plaintiff's negligence, could the defendant, by the exercise of ordinary care, have prevented the result ? It must be borne in mind that the negligence for which the company is liable, is .that which directly contributes to produce the injury. The fact that the company has been guilty of negligence, followed by an injury, does not make the company liable, unless the injury were occasioned by that negligence. The connection of cause and effect must be established. Por instance, a passing train, by an accident, the result of negligence on the part of the company, is compelled to reverse its engine and run backwards, and in so doing runs over a person crossing the track. The negligence of the company made it necessary to back the train, yet, unless guilty of negligence in running the train backwards, the company would not be held liable for the injury.\\nBut if after discovering the danger in which the party had placed himself, even by his own negligence, the company could have avoided the injury by the exercise of reasonable care, the exercise of that care becomes a duty, for the neglect of which the company is liable. When it is said, in cases where plaintiff has been guilty of contributory negligence, that the company is liable, if by the exercise of ordinary care it could have prevented the accident, it is to be understood that it will be so liable, if by the exercise of reasonable care, after a discovery by defendant of the danger in which the injured party stood, the accident could have been prevented, or if the company failed to discover the danger through the recklessness or carelessness of its employees, when the exercise of ordinary care would have discovered the danger and averted the calamity. So that the first and third propositions, which counsel insist should be submitted the jury in this class of cases, require modifications, as above suggested. . The evidence that Harlan's negligence contributed directly to produce the injury, was clear and uncontradicted, and there was no evidence whatever tending to show that after the deceased got on the track, it was even possible to prevent the accident. There was no issue to submit to a jury, under the evidence as preseiwed in the bill of exceptions. The judgment of the court is in harmony with Hicks v. The Pacific R. R. Co., Evans v. The Pacific R. R. Co. 62 Mo. 49, and Fletcher v. The A. \\u00a7 P. R. R. Co. 64 Mo. 484. The record and authorities cited, and others not cited, have been examined carefully by every member of this court, and all concur in overruling the motion for a rehearing.\"}"
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diff --git a/mo/9933265.json b/mo/9933265.json
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+"{\"id\": \"9933265\", \"name\": \"STATE ex rel. McDONNELL DOUGLAS CORPORATION, Relator, v. The Honorable Drew W. LUTEN, Jr., Judge of the Circuit Court of St. Louis County, Missouri, 10th Division, Respondent\", \"name_abbreviation\": \"State ex rel. McDonnell Douglas Corp. v. Luten\", \"decision_date\": \"1984-11-20\", \"docket_number\": \"No. 65866\", \"first_page\": \"278\", \"last_page\": \"281\", \"citations\": \"679 S.W.2d 278\", \"volume\": \"679\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:49:19.188527+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"STATE ex rel. McDONNELL DOUGLAS CORPORATION, Relator, v. The Honorable Drew W. LUTEN, Jr., Judge of the Circuit Court of St. Louis County, Missouri, 10th Division, Respondent.\", \"head_matter\": \"STATE ex rel. McDONNELL DOUGLAS CORPORATION, Relator, v. The Honorable Drew W. LUTEN, Jr., Judge of the Circuit Court of St. Louis County, Missouri, 10th Division, Respondent.\\nNo. 65866.\\nSupreme Court of Missouri, En Banc.\\nNov. 20, 1984.\\nMichael W. Flavin, James E. Whaley, St. Louis, for relator.\\nKenneth D. Koester, James F. Koester, St. Louis, for respondent.\", \"word_count\": \"1546\", \"char_count\": \"9437\", \"text\": \"GUNN, Judge.\\nRelator through prohibition seeks to test the jurisdiction of the trial court in what is alleged to be a workers' compensation matter reserved for the Labor and Industrial Relations Commission. We make our provisional rule in prohibition absolute.\\nRelator McDonnell Douglas Corporation is a defendant in a common-law negligence action for injuries suffered by one of its employees. Relator moved for summary judgment on the employee's petition, or in the alternative to dismiss the petition for lack of subject-matter jurisdiction. The motion asserted that exclusive jurisdiction over the employee's claim was properly in the Missouri Labor and Industrial Relations Commission, under \\u00a7 287.120, RSMo 1978. The trial court denied the motion. On relator's petition, this Court issued its provisional rule in. prohibition prohibiting the trial court from proceeding further in the case. That rule is now made absolute, and the trial court is directed to enter its order dismissing the employee's petition against relator without prejudice.\\nThe facts pertinent to the decision of this case appear in the employee's petition, relator's motion, and the depositions on file in the cause. The employee (herein \\\"plaintiff\\\") filed no pleadings, affidavits or other response to relator's motion.\\nPlaintiff was employed by relator at its plant in St. Louis. At the end of her shift, shortly after midnight, plaintiff exited the plant through a gate in the plant's perimeter fence. This was gate 44A. Ordinarily, her route would have taken her across Banshee Road, which abutted the gate, to a sheltered bus stop on the far side of the street. Here she would catch a bus chartered by her and her co-workers which would take her to where her car was parked in Foristell, Missouri. On the occasion of the injury, she had reached the middle of Banshee Road when she was struck by an automobile operated by a fellow employee.\\nThe bus stop on the far side of Banshee Road was built and maintained by McDonnell Douglas. The crosswalk to the shelter was marked by lines painted and maintained by McDonnell Douglas and was illuminated by a lightpole erected by relator. The surface of Banshee Road at this point was also maintained by McDonnell Douglas, although the roadway itself belonged to St. Louis County, and the bus which the shelter served was driven by a McDonnell Douglas employee. The bus had formerly picked up its passengers within the compound, but McDonnell Douglas had decided a few months before the accident to build the shelter on Banshee Road and to reroute its employees to that site. Plaintiff's petition alleges that McDonnell Douglas \\\"appropriated the use\\\" of the crosswalk at gate 44A.\\nThe following precepts of law serve as guideposts to reach the denouement. Liability of an employer for compensation under the Workers' Compensation Law releases the employer from all other liability. \\u00a7 287.120, RSMo 1978. The Labor and Industrial Relations Commission has exclusive jurisdiction over claims for injuries covered by this act. Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723, 726 (Mo. banc 1982). Rule 55.27(g)(3) states that \\\"[wjhenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.\\\" And when, as here, the facts are not controverted, the question whether an injury is covered by the Workers' Compensation Law becomes a question of law. Daniels v. Krey Packing Co., 346 S.W.2d 78, 81 (Mo. 1961); Blatter v. Missouri Department of Social Services, 655 S.W.2d 819, 823 (Mo.App.1983).\\nIn the present case, the facts before the trial court establish as a matter of law that it was without jurisdiction to proceed further in the case except to dismiss the petition.\\nThe following principles also prevail.\\nThe Workers' Compensation Law extends its provisions to every employer who is not otherwise excluded from its ambit. \\u00a7 287.060, RSMo 1978. Employers are liable under the act for compensation for personal injury to or the death of an employee resulting from an accident \\\"arising out of and in the course of his employment.\\\" \\u00a7 287.120, supra.\\nIf the employee is injured while passing with the express or implied consent of the employer, to or from work, by a way over the employer's premises, the injury is one arising out of and in the course of employment as much as though it had happened while the employee was engaged in his work at the place of its performance.\\nZahn v. Associated Dry Goods Corp., 655 S.W.2d 769, 773 (Mo.App.1983). For purposes of this rule, the employer's premises extend by implication to property \\\"so appropriated by the employer or so situate, designated and used by the employer and his employees incidental to their work as to make [it], for all practical intents and purposes, a part and parcel of the employer's premises and operation.\\\" Pulliam v. McDonnell Douglas Corp., 558 S.W.2d 693, 699 (Mo.App.1977), quoting Kunce v. Junge Baking Co., 432 S.W.2d 602, 607 (Mo.App.1968). Property is sufficiently \\\"appropriated\\\" to make it a part of the employer's extended premises if it is used by employees as a route of access to the employer's premises, and such use is known to and acquiesced in by the employer. Hunt v. Allis-Chalmers Manufacturing Co., 445 S.W.2d 400, 409 (Mo.App. 1969).\\nUnder the facts before it, the only conclusion available to the trial court was that the route over which plaintiff was travelling was expressly approved by relator as a means of access to its facility. In addition, it is clear that the hazard to which the plaintiff was exposed along this route was precisely the hazard which caused the injury, i.e., the risk of being struck by vehicular traffic. Id. at 408. Consequently, relator made a satisfactory showing that plaintiff's claim was for an injury \\\"arising out of and in the course of [her] employment,\\\" and the trial court was compelled to dismiss plaintiff's petition for lack of subject-matter jurisdiction.\\nThe facts in the present case are in sharp contrast to those in Pulliam, supra, notwithstanding the coincidence that the Pul-liam case also involved gate 44A to the McDonnell Douglas facility. In Pulliam, the employee was injured while on his way to work. His normal route took him from a residential area north of the plant along a footpath worn by similar traffic across Banshee Road and into gate 44A. The footpath crossed two sets of railroad tracks between the residential area and Banshee Road. The employee was injured when he walked into the path of a train which was passing on one of these sets of tracks. At the time the accident occurred, McDonnell Douglas had not yet established a bus stop on Banshee Road opposite gate 44A, nor had it marked a pedestrian crosswalk at that point.\\nThe court of appeals in Pulliam reversed a worker's compensation award, holding that the implied extension of the employer's premises to include the footpath was not supported by competent and substantial evidence. Central to the appellate court's conclusion was the fact that there was no evidence that McDonnell Douglas in any way invited its employees to use that path. Id., 558 S.W.2d at 699. By contrast, the crosswalk in which the plaintiff in this case was injured served as an overt encouragement for employees' use as a means of egress from the employer's facility.\\nAlthough the trial court is required under the facts presented here to dismiss plaintiff's petition, the dismissal is without prejudice. Parmer v. Bean, 636 S.W.2d 691, 694 (Mo.App.1982). Plaintiff is free to raise her claim under the Workers' Compensation Law, and the resolution of this case does not reflect in any way upon the merits of that claim.\\nThe provisional rule in prohibition is therefore made absolute, and the trial court is directed to enter its order dismissing plaintiff's petition without prejudice.\\nAll concur.\\n. Relator made a sufficient prima facie showing of coverage under this section by demonstrating that plaintiff was its employee. Compare McLeod v. Marion Laboratories, Inc., 600 S.W.2d 656, 657 (Mo.App.1980). It was not necessary for relator to prove that it was not an excluded employer. Nor was it necessary for relator to prove \\\"that the employee had not rejected the provisions of the Act, [or] that the requisite notices had been posted,\\\" id., since there are no such preliminary requirements in the present Workers' Compensation Law which must be met before exclusive jurisdiction will attach.\\n. It is conceivable, were the facts shown to be different from those which appear on the face of plaintiffs petition and deposition, that the Labor and Industrial Relations Commission could conclude that jurisdiction does not lie under the Workers' Compensation Law. Since the determination that the trial court is without jurisdiction is preliminary, having been made in default of any contrary showing by plaintiff and not after a full hearing on the merits, it is without res judicata effect. Zahn, 655 S.W.2d at 773-74; Cloyd v. Cloyd, 564 S.W.2d 337, 345 (Mo.App.1978).\"}"
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+"{\"id\": \"9935296\", \"name\": \"STATE of Missouri, Plaintiff-Respondent, v. James Raymond ETHELBERT, Defendant-Appellant\", \"name_abbreviation\": \"State v. Ethelbert\", \"decision_date\": \"1981-01-19\", \"docket_number\": \"No. 11670\", \"first_page\": \"379\", \"last_page\": \"381\", \"citations\": \"611 S.W.2d 379\", \"volume\": \"611\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:34:45.392815+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"STATE of Missouri, Plaintiff-Respondent, v. James Raymond ETHELBERT, Defendant-Appellant.\", \"head_matter\": \"STATE of Missouri, Plaintiff-Respondent, v. James Raymond ETHELBERT, Defendant-Appellant.\\nNo. 11670.\\nMissouri Court of Appeals, Southern District, Division Two.\\nJan. 19, 1981.\\nJohn D. Ashcroft, Atty. Gen., John C. Reed, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.\\nDavid R. Fielder, Fielder, Jones & Conk-lin, Springfield, for defendant-appellant.\", \"word_count\": \"813\", \"char_count\": \"5110\", \"text\": \"PREWITT, Presiding Judge.\\nDefendant was convicted of robbery in the first degree and sentenced to ten years imprisonment. Defendant's brief, filed by counsel who did not represent him at trial, contains four points relied on.\\nDefendant's first point contends that the trial court erred in granting the state's motion for a continuance. The robbery occurred at approximately 9:00 p. m. on May 13,1979, and defendant was arrested at 11:38 that evening. A preliminary hearing was held June 5, 1979, and defendant was arraigned before a circuit judge on June 8, 1979. Trial was set for July 30, 1979. Defendant disqualified that circuit judge and the case was transferred to another division of the circuit court. Trial was then scheduled for September 18,1979, but was continued at the request of the state because the victim of the robbery was hospitalized in Mississippi. Trial commenced on November 28, 1979. Defendant's contention that \\u00a7 545.780, RSMo 1978, and his \\\"constitutional rights to a speedy trial\\\" were violated was not included in his motion for new trial and thus cannot be considered in this appeal unless there is manifest injustice or miscarriage of justice. See former Rule 27.20, V.A.M.R.; Rule 30.-20, V.A.M.R.; State v. Umfleet, 587 S.W.2d 612, 615 (Mo.App.1979). We find no error and clearly no injustice or miscarriage of justice here.\\nDefendant also claims that he was prejudiced because at the time the case was originally set for trial he would have had the right to make peremptory challenges to eight jurors under \\u00a7 546.180(2), RSMo 1978, and that at the time of the trial he could only challenge six jurors due to an amendment to this section which took effect before his trial. See \\u00a7 546.180(2), RSMo Supp. 1980. The trial court is vested with discretion in granting or denying a continuance, and we are not to interfere with that ruling unless there is an abuse of discretion by acting arbitrarily, capriciously, and oppressively. State v. Davison, 545 S.W.2d 723, 724-725 (Mo.App.1977). See also State v. Teegarden, 559 S.W.2d 618, 621 (Mo.App.1977). We find no abuse of discretion here. No prejudice was shown due to the continuance and we do not believe that the reduction in defendant's challenges denied him a fair trial. Point one is denied.\\nPoint two contends that the trial court erred in overruling defendant's motion to suppress his statement to the arresting officer denying that he owned or had information about a motorcycle parked near where he was arrested. He later admitted ownership of it. A motorcycle had been used by the robber to leave the scene of the robbery. Defendant claims that when he talked to the officers that he was too intoxicated to have waived his \\\"Miranda Rights\\\". In his testimony defendant said that he made the statements because he thought he was being arrested for driving the motorcycle while intoxicated. No objection was made at the trial to the officer's testimony about defendant's statement. When a motion to suppress evidence is denied and the evidence is offered, the defendant must object at the trial to preserve his contentions for appellate review. State v. Howard, 564 S.W.2d 71, 74 (Mo.App.1978). See also State v. Wheat, 573 S.W.2d 126, 128 (Mo.App.1978). However, the record reveals no error, plain or otherwise. Point two is denied.\\nPoints three and four claim that the trial court erred by overruling defendant's motion to suppress identification testimony of three witnesses to the robbery, two of whom initially identified defendant as the robber upon seeing him at the Springfield Police Station and one who identified defendant by selecting defendant's photograph from five photographs shown to the witness by an investigator from the prosecuting attorney's office. No objection was made when the witnesses identified defendant at the trial nor when they described the manner of their initial identification. Even though defendant submitted these points in his motion for new trial and in his brief, failure to object during the trial prevents the denial of his motion to suppress identification testimony from being properly preserved for our review. State v. Nauman, 592 S.W.2d 258, 260 (Mo.App.1979); State v. Johnson, 574 S.W.2d 42 (Mo.App.1978). However, again the record shows no error as to these points. The identification procedures were not unduly suggestive and as to each witness there was an independent source of identification. See State v. Madewell, 603 S.W.2d 692, 696-698 (Mo.App.1980); State v. Morgan, 593 S.W.2d 256, 258-259 (Mo.App.1980); State v. Kiplinger, 591 S.W.2d 207, 209-210 (Mo.App.1979), and State v. Collins, 567 S.W.2d 144, 145-146 (Mo.App.1978). Points three and four are denied.\\nThe judgment is affirmed.\\nAll concur.\"}"
\ No newline at end of file
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+"{\"id\": \"9948178\", \"name\": \"John W. CARWELL, Respondent, v. Maurice D. COPELAND, Appellant\", \"name_abbreviation\": \"Carwell v. Copeland\", \"decision_date\": \"1982-03-09\", \"docket_number\": \"No. WD 32322\", \"first_page\": \"669\", \"last_page\": \"671\", \"citations\": \"631 S.W.2d 669\", \"volume\": \"631\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:17:46.738031+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CLARK, P. J., and MANFORD and KENNEDY, JJ.\", \"parties\": \"John W. CARWELL, Respondent, v. Maurice D. COPELAND, Appellant.\", \"head_matter\": \"John W. CARWELL, Respondent, v. Maurice D. COPELAND, Appellant.\\nNo. WD 32322.\\nMissouri Court of Appeals, Western District.\\nMarch 9, 1982.\\nJune Clark, Kansas City, for appellant.\\nFrederick H. Riesmeyer, II, Kansas City, James R. Shetlar, Overland Park, Kan., for respondent.\\nBefore CLARK, P. J., and MANFORD and KENNEDY, JJ.\", \"word_count\": \"905\", \"char_count\": \"5573\", \"text\": \"CLARK, Presiding Judge.\\nAppellant Copeland, defendant in the cause below, appeals from the order of the trial court dismissing appellant's counterclaim on the basis of forum non conveniens. The order of dismissal is affirmed.\\nThe somewhat unusual background of this case developed as follows. Carwell and Copeland, both residents of Kansas, entered into a transaction August 26,1969, whereby Carwell loaned Copeland $40,000.00 to be repaid with interest on demand. The funds were advanced and a note was signed at the City National Bank in Kansas City, Missouri, where repayment was specified to be made. Upon default in payment, Carwell commenced suit against Copeland in the Circuit Court of Jackson County, Missouri, alleging that jurisdiction over the action lay in Missouri under \\u00a7 506.500, RSMo 1978 because the promissory note was a contract made in Missouri. Process issued to Copeland in Kansas.\\nUnder a procedure unknown to Missouri law, Carwell caused to be filed in Kansas a \\\"Notice of Pending Action,\\\" the purpose of which was to afford public notice in Kansas of the pending suit and Copeland's potential liability should Carwell prevail. The notice erroneously indicated that the suit was pending in Jackson County, Kansas. It appears that the filing of the notice created a lien or potential lien on real estate Copeland owned in Kansas and that the notice was improvidently filed because Kansas statutes authorize the filing of such notices only as to suits pending in the state courts of Kansas or in United States courts sitting in Kansas. '\\nCopeland responded by filing a \\\"Counterclaim and Setoff\\\" in the suit Carwell had commenced and sought damages for abuse of process, slander of title and the wrongful filing of the notice. Before those issues were reached on the merits, Carwell moved for and was granted summary judgment on the claim for recovery of the balance due on the note. Judgment was entered against Copeland for $34,150.00 principal, $22,335.52 interest and $5,648.55 attorney fees. Apparently that liability was not subject to contest. Thereafter, Carwell moved to dismiss the counterclaim, the only matter then remaining pending, on the doctrine of forum non conveniens. The court sustained the motion and this appeal followed.\\nCopeland contends the dismissal of his claim resulted from an erroneous application of the forum non conveniens doctrine. He suggests that doctrine is to be applied sparingly and with caution only in exceptional cases. Particularized as to the facts of this case, Copeland relies substantially upon the circumstance that the choice of the Missouri forum was made by Carwell, not by him, and upon what he perceives as an interrelationship between the suit on the note and the counterclaim.\\nThe scope of review of an order dismissing a cause under the doctrine of forum non conveniens is to ascertain whether the trial court has abused its discretion. Rozansky Feed Co., Inc. v. Monsanto Company, 579 S.W.2d 810 (Mo.App.1979). Discretion is abused only if the ruling is against the logic of the circumstances and if reasonable men could not differ as to the decision. Morrow v. Zigaitis, 608 S.W.2d 427 (Mo.App.1980). In the exercise of discretion when confronted with a forum non conveniens problem, the court should consider the place where the cause of action accrued, the location of witnesses, the residence of the parties, any nexus with the place of suit, the convenience to or burden upon the court and the availability of another forum to which the complaining party may have recourse. State ex rel. Chicago, Rock Island and Pacific Railroad Company v. Riederer, 454 S.W.2d 36, 39 (Mo. banc 1970).\\nThe facts of the matter here make no case upon which Copeland may complain that the trial court abused its discretion in sustaining the motion for dismissal. The counterclaim results from the filing in Kansas of the notice of suit, an act and a procedure identified with Kansas and its law. The parties reside in Kansas, the damage of which Copeland complains occurred in Kansas and, according to Carwell's suggestions presented to the trial court, all witnesses live in Kansas. Moreover, there is no interrelationship between the suit on the note and the counterclaim, as Copeland argues, because they did not arise out of the same transaction. Disposition of the principal case was and is immaterial to the cause of action advanced in the counterclaim. Whether Carwell prevailed or lost in that suit has no effect whatever on Copeland's entitlement to redress for the wrongful filing as he alleges in his claim.\\nMissouri courts were available to resolve the suit on the note, a transaction entered into in Missouri. That phase of the controversy is concluded and the counterclaim remains standing alone as a separate case to which other facts and different legal principals apply. Copeland has offered no contention that Kansas courts are not available to litigate the claim that the notice of suit was improperly filed there. The most that can be said as to disposition of the motion to dismiss on grounds of forum non conven-iens is that reasonable men could differ. The decision of the trial court is therefore entitled to affirmance.\\nThe judgment is affirmed.\\nAll concur.\"}"
\ No newline at end of file
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+"{\"id\": \"9953534\", \"name\": \"STATE of Missouri, Respondent, v. Michael CARR, Appellant\", \"name_abbreviation\": \"State v. Carr\", \"decision_date\": \"1983-09-06\", \"docket_number\": \"No. WD 34445\", \"first_page\": \"743\", \"last_page\": \"743\", \"citations\": \"657 S.W.2d 743\", \"volume\": \"657\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T21:37:14.348136+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before SOMERVILLE, P.J., and MAN-FORD and LOWENSTEIN, JJ.\", \"parties\": \"STATE of Missouri, Respondent, v. Michael CARR, Appellant.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Michael CARR, Appellant.\\nNo. WD 34445.\\nMissouri Court of Appeals, Western District.\\nSept. 6, 1983.\\nJames W. Fletcher, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.\\nJohn Ashcroft, Atty. Gen., Sandra K. Stratton, Asst. Atty. Gen., Jefferson City, for respondent.\\nBefore SOMERVILLE, P.J., and MAN-FORD and LOWENSTEIN, JJ.\", \"word_count\": \"97\", \"char_count\": \"634\", \"text\": \"ORDER\\nPER CURIAM:\\nThis is a direct appeal from a jury conviction for robbery, second degree, in violation of \\u00a7 569.030, RSMo 1978.\\nNo jurisprudential purpose would be served by a written opinion.\\nJudgment affirmed.\\nAll concur.\\nRule 30.25(b).\"}"
\ No newline at end of file
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+"{\"id\": \"9969131\", \"name\": \"STATE of Missouri, Respondent, v. Samuel CRUMP, Movant\", \"name_abbreviation\": \"State v. Crump\", \"decision_date\": \"1988-01-12\", \"docket_number\": \"No. 52860\", \"first_page\": \"193\", \"last_page\": \"197\", \"citations\": \"747 S.W.2d 193\", \"volume\": \"747\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T19:53:57.109895+00:00\", \"provenance\": \"CAP\", \"judges\": \"STEPHAN, P.J., and DOWD, J., concur.\", \"parties\": \"STATE of Missouri, Respondent, v. Samuel CRUMP, Movant.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Samuel CRUMP, Movant.\\nNo. 52860.\\nMissouri Court of Appeals, Eastern District, Division Two.\\nJan. 12, 1988.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied Feb. 24, 1988.\\nApplication to Transfer Denied April 19, 1988.\\nJanis C. Good, Asst. Public Defender, St. Louis, for movant.\\nWilliam L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for respondent.\", \"word_count\": \"1720\", \"char_count\": \"10374\", \"text\": \"PUDLOWSKI, Judge.\\nAt approximately 7:00 p.m. on February 10, 1986, Police Officers Willis Cook and Terry Kaelin were called to a vacant home in the City of St. Louis to investigate a possible burglary. When the officers arrived, they found that the back door had been kicked open. Upon inspecting the inside of the building, the police found that the fireplace mantel had been removed from the wall and that the sink in the bathroom had been pried loose from the wall. Defendant's brother was apprehended as he attempted to climb out of a second-story window onto a small porch. The defendant was found hiding in the basement of the building and was arrested.\\nThe defendant, Samuel Crump, is a career criminal whose record is replete with at least eleven convictions for burglary in the second degree and stealing, and one conviction for trespass first degree and tampering second degree. At the time of his arrest Crump had been out of the penitentiary and on parole for only eight days. Crump was convicted by a jury of burglary in the second degree and was sentenced to ten years imprisonment.\\nOn appeal the defendant argues that (1) the prosecutor improperly used his peremptory challenges to eliminate blacks from the jury panel; (2) the trial court erred by improperly admitting evidence of the defendant's prior convictions; and (3) the trial court erred in responding to a question asked by the jury during its deliberation.\\nIn his first point the defendant argues that he was deprived of the equal protection of the law and his due process rights by the prosecutor's use of her peremptory challenges which he alleges was discriminatory. He further argues that the court erred under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) in accepting the reasons given by the prosecutor for striking these jurors.\\nThe thirty-six member venire was composed of sixteen black and twenty white members. After the court accepted both parties' strikes for cause, the prosecutor used her peremptory challenges to eliminate six blacks from the venire. The petit jury that was ultimately selected was comprised of five black and seven white members. The alternate juror was also black.\\nThe arguments of both parties center around the reasons given by the prosecutor for exercising her peremptory challenges. The defendant argues that the reasons given for striking the six blacks were not neutral and thus were racially motivated. The state argues to the contrary. As will be explained below, we need not address this issue.\\nThe Kentucky trial that gave rise to the Batson decision involved a black defendant who was tried and convicted by an all white jury. On appeal the Supreme Court recognized that the state denies a black defendant the equal protection of the law when it puts him on trial before a jury from which members of his race have been purposefully excluded. Batson, 106 S.Ct. at 1716. Such exclusion denies the defendant the protection that is afforded when he is tried before a jury of his peers. Id. at 1717. A jury is described as a body composed of the peers or equals of the person whose rights it is selected or summoned to determine. Batson, 106 S.Ct. at 1717 (citing Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 308, 25 L.Ed. 664 (1880).\\nIn order to assure such protection the Batson court formulated a test to determine whether a black defendant has made a prima facie showing of purposeful discrimination in the selection of the petit jury through the state's use of peremptory challenges. First, the defendant must show that he and the excluded jurors are members of the same cognizable racial group. Second, the defendant is entitled to rely on the fact that the peremptory challenge constitutes a jury selection process that permits discrimination. Third, the defendant must show that these facts and all relevant circumstances raise an inference that the prosecutor used her peremptory challenges to exclude veniremen from the petit jury on account of race. In deciding whether the defendant has made a prima facie showing the reviewing court is required to give substantial deference to the decision of the trial judge. Batson, 106 S.Ct. at 1723. Until the defendant makes a prima facie showing, the reasons given by the state for excluding veniremen are irrelevant. After the defendant makes his case, however, the burden shifts to the state to articulate a neutral and reasonably specific explanation of his legitimate reason for exercising the challenge. Id. at 1723, 1724 n. 20.\\nWhile this specific issue has never been before this court, the language and spirit of Batson as well as notions of fundamental fairness lead us to the conclusion that a.black defendant cannot complain that he was denied the equal protection of the law when he is tried by a jury which is forty-two percent black. Supreme Court recognized that the ultimate issue in Bat-son was whether the state discriminated in the jury selection process. In discussing the circumstances that may give rise to an inference of purposeful discrimination the court stated that they could not \\\"attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse.\\\" Id. at 1723 (emphasis added). In providing reasons for exclusions the state must demonstrate that \\\"permissible racially neutral selection criteria and procedures have produced the monochromatic result.\\\" Id. at 1721 (citing Alexander v. Louisiana, 405 U.S. 625, 632, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1982)). (Emphasis added). In the present case the petit jury was not monochromatic; nor was there an absence of black members. The wording of Batson and the principles that form the foundation for the decision suggest that Batson applies to the situation where a black defendant is tried before an all white jury. The defendant, on the other hand, urges us to focus solely on the means used to select the petit jury and to ignore the end result. Carried to the extreme the defendant's argument would produce bizarre results. Picture, for example, a venire composed of thirty-six blacks. If the state uses its peremptory challenges to eliminate six members and fails to articulate what the defendant would deem legitimate, neutral reasons, the black defendant could raise a Batson challenge despite the fact that he was tried by an all black jury. This result is against the spirit of Batson and defies rationality.\\nIn applying the foregoing to the case at bar we note that the defendant easily makes the first two parts of his prima facie showing; he is a member of the same racial group as the excluded jurors; and he may rely on the fact that the peremptory challenge allows discrimination in jury selection. However, the defendant fails to show how these facts and relevant circumstances give rise to an inference of purposeful discrimination. The fact that five blacks remained on the jury panel after the prosecutor used her peremptory challenges undercuts any inference of discrimination that may arise. The defendant fails to make a prima facie case and accordingly his first point is denied.\\nIn his second point the defendant argues that the trial court erred in refusing to grant a mistrial when the prosecutor asked the defendant whether his prior convictions had been for stealing in the same neighborhood as the offense for which he was being tried. After the defendant had admitted his eleven convictions for burglary and stealing, the prosecutor asked him, \\\"In these other burglaries that you've been convicted of and stealing, weren't they all in that same area?\\\" Before the defendant answered the question, defense counsel objected, made a motion for a mistrial and asked that the jury be instructed to disregard the question. The motion was denied and the jury was so instructed.\\nThe general rule is that when an improper question is asked but not answered, there is no prejudicial error. State v. Morgan, 653 S.W.2d 257, 258 (Mo.App.1983). Therefore, assuming arguendo that the question was improper, it was not prejudicial. Even if the question had been answered, the curative instruction given by the court to the jury would have purged any such testimony of any prejudice. We find that the trial court did not abuse its discretion in denying defendant's motion for a mistrial. State v. Pirtle, 652 S.W.2d 272, 273 (Mo.App.1983).\\nIn his final point the defendant argues that the trial court committed reversible error in responding to a question propounded by the jury during its deliberation. After deliberating for approximately four and one-half hours the jury submitted the following question: \\\"We have reached a verdict on trespass number one. We have not been able to reach a decision on burglary number two. What is the consequence if the jury is unable to come to a consensus on the burglary two? If we find guilty on trespass one, would retrial occur?\\\" The court responded, over an objection by defense counsel: \\\"In accordance with the instructions, you must arrive at one verdict only.\\\"\\nAppellant argues that the response given by the jury had an \\\"extremely coercive effect on the jurors.\\\" This contention is totally unsupported by the record. The jury had before them two verdict directors; one submitting burglary in the second degree and one submitting trespass. Trespass is a lesser included offense of burglary in the second degree. The trespass instruction was drafted in compliance with MAI-CR2d 2.05 and clearly indicated that the defendant could not be found guilty of both trespass and burglary in the second degree. The law is clear. When the court's response to the jurors' question is a correct statement of the law and does not confuse or mislead them no error is shown. State v. Neal, 685 S.W.2d 271, 274 (Mo.App.1985). The response given by the judge in this case met that standard. The judgment of the trial court is affirmed.\\nSTEPHAN, P.J., and DOWD, J., concur.\"}"
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+"{\"id\": \"9971612\", \"name\": \"Noel F. CLARK, Incompetent, by Noel T. Clark, Guardian, Appellant, v. Genevieve CLARK, Respondent\", \"name_abbreviation\": \"Clark ex rel. Clark v. Clark\", \"decision_date\": \"1981-10-13\", \"docket_number\": \"No. 43564\", \"first_page\": \"481\", \"last_page\": \"483\", \"citations\": \"624 S.W.2d 481\", \"volume\": \"624\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T00:28:09.923139+00:00\", \"provenance\": \"CAP\", \"judges\": \"REINHARD and SNYDER, JJ., concur.\", \"parties\": \"Noel F. CLARK, Incompetent, by Noel T. Clark, Guardian, Appellant, v. Genevieve CLARK, Respondent.\", \"head_matter\": \"Noel F. CLARK, Incompetent, by Noel T. Clark, Guardian, Appellant, v. Genevieve CLARK, Respondent.\\nNo. 43564.\\nMissouri Court of Appeals, Eastern District, Division Three.\\nOct. 13, 1981.\\nJames M. Martin, Martin, Bahn & Cervantes, St. Louis, for appellant.\\nDaniel V. Boeckman, O\\u2019Fallon, for respondent.\", \"word_count\": \"558\", \"char_count\": \"3466\", \"text\": \"CRIST, Presiding Judge.\\nRespondent Genevieve Clark (wife) petitioned for support from the estate of her mentally incompetent husband under \\u00a7 475.125 RSMo. 1978 (Section 475.125):\\nThe court may make orders for the management of the estate of the ward, and for the maintenance of his family and education of his children, if an incompetent, according to his means and obligation, if any, out of the proceeds of his estate\\nThe trial court sustained the petition, and ordered the husband's guardian to pay out of his ward's estate the sum of $100.00 per month for the wife's support. The guardian appeals. We affirm.\\nThe wife is seventy-two years old. She lives frugally and alone in the retirement home apartment she and her husband shared before he was institutionalized in the Spring of 1980. Her monthly expenses average $438.00, and her entire monthly income is $339.60. She has a small savings account and some personal property, but even the husband's guardian concedes that her need for additional support is genuine.\\nThe husband's estate had assets valued at about $8,000.00, and an income of $1,015.00 per month from Social Security and a private retirement pension. However, the estate's monthly expenses, which include the cost of the husband's care, total $1,265.00. The resulting monthly \\\"shortfall\\\" of about $250.00 would eventually deplete the estate's assets if no other financial assistance is obtained, and the rate of depletion would accelerate under the order appealed from.\\nThe guardian contends that a support order under Section 475.125 should distribute only the surplus remaining in the husband's estate after his own needs are met, and implies that no support order is proper unless the estate is sufficient to meet those needs indefinitely. But what the guardian overlooks is that it remains among the prime and paramount duties of the husband to support and maintain his wife. See: Tryon v. Casey, 416 S.W.2d 252, 260 (Mo.App.1967). That duty \\u2014 and the attendant liability of his estate to fulfill it\\u2014 was not changed by either the husband's incompetency or the enactment of Section 475.125, as we intimated in our interpretation of an earlier version of the statute in State ex rel. Kemp v. Arnold, 234 Mo.App. 154, 113 S.W.2d 143, 146 (1938):\\nthe statute was designed by the Legislature to confer upon the probate court a power and authority over and above that of merely enforcing bare legal obligations of an incompetent for which, as a matter of fact, his estate would be liable without the enactment of any such statute.\\nAnd see: Annot., 24 A.L.R.3d 863, 870, 877 (1969).\\nGiven the husband's liability for support, it was within the trial court's discretion to fix the extent of the husband's liability therefor \\\" according to his means *'' Under the poignant circumstances here, we find no abuse of discretion in ordering the husband's estate de pleted by making $100.00 per month support payments to the wife. The trial court's order is in harmony with the evidence and the law, see: Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976), and is affirmed.\\nOrder affirmed.\\nREINHARD and SNYDER, JJ., concur.\"}"
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+"{\"id\": \"9972865\", \"name\": \"In re the Marriage of Jack WINTERS, Appellant, v. Jacqueline C. WINTERS (Barnetski-Gepford), Respondent\", \"name_abbreviation\": \"Marriage of Winters v. Winters\", \"decision_date\": \"1981-05-04\", \"docket_number\": \"No. WD 31993\", \"first_page\": \"585\", \"last_page\": \"591\", \"citations\": \"617 S.W.2d 585\", \"volume\": \"617\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T18:25:58.282548+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before PRITCHARD, P. J., and TUR-NAGE and CLARK, JJ.\", \"parties\": \"In re the Marriage of Jack WINTERS, Appellant, v. Jacqueline C. WINTERS (Barnetski-Gepford), Respondent.\", \"head_matter\": \"In re the Marriage of Jack WINTERS, Appellant, v. Jacqueline C. WINTERS (Barnetski-Gepford), Respondent.\\nNo. WD 31993.\\nMissouri Court of Appeals, Western District.\\nMay 4, 1981.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied June 2, 1981.\\nApplication to Transfer Denied July 14, 1981.\\nCharles W. Gardner, Lee\\u2019s Summit, for appellant.\\nRichard Rose, Kansas City, for respondent.\\nBefore PRITCHARD, P. J., and TUR-NAGE and CLARK, JJ.\", \"word_count\": \"3585\", \"char_count\": \"21140\", \"text\": \"PRITCHARD, Presiding Judge.\\nThe dispute between the parties concerns the award of custody of three sons born of the marriage, who were born, respectively, December 4, 1963, May 24, 1965, and November 22, 1967. The custody matter was presented on a motion to modify the original 1969 decree.\\nThe parties were divorced on July 9,1969, and the custody was awarded to respondent mother, subject to appellant father's temporary custody for a period of three months each summer, alternate holidays and all weekends during the school year. Shortly after the divorce, respondent married a person by the name of Barnetski, that marriage being dissolved on October 23, 1979. She then married Gepford, and that marriage subsisted at the time of the hearing.\\nFor some six months prior to March, 1979, respondent was having problems with alcohol. Out of concern for her children, she requested appellant temporarily to take care of the sons, which he did. Respondent then entered Truman Medical Center for treatment of the alcoholic problem, and it was there that she met her present husband, Gepford. Prior to that time, according to respondent, there had been no marital relations between her and Barnetski since October 1977.\\nThe present husband of respondent, Gep-ford, admitted that he is an alcoholic, and had problems for the last ten years. He underwent treatment for that ailment at several hospitals and facilities. He was self-employed in remodeling, worked also as an employee of a sewer service company, and had earned over $3,000 gross in the past two months. It was his testimony that he had not been drunk for four months prior to the instant hearing, which began on November 21, 1979.\\nAppellant's wife, Mary Winters, testified that they have three children born of their marriage, ages 6, 4, and 22 months. The three sons of the parties here get along well with those children. She saw Gepford on one occasion in respondent's home lying on the floor embracing one another, and it appeared that they had been drinking. The fourteen year old son had gone up to his room, and she supposed he walked right past respondent and Gepford. Respondent was then married to Barnetski. Mary saw appellant kick in a car radio because it was set on a religious station. He has a temper, and kicks or strikes things when he is angry. He knocked Mary down one time. He drinks about a six pack of beer a week.\\nRespondent testified that she had not lived with Barnetski as husband and wife for over two years before they were divorced, which occurred in October, 1979. She had a problem with alcohol about the first of 1979, and went twice to Truman East Medical Center for detoxification, 16 days the first time and 12 hours the second. She afterward went twice to Western Missouri Mental Health Center voluntarily for alcoholism. She was drunk for one night in July, 1979, but had not been drunk in the last four months before trial, nor had her husband, Gepford. She was not at the time of trial dependent on alcohol; she has the problem very well in hand, and there was no doubt in her mind that she would ever start drinking as before. \\\"[T]he thought of a drink would practically make me physically ill, just to think of it.\\\" In November, 1978, when she started depending upon alcohol as a crutch, she \\\"had not a second\\\" to herself going to school full time; she was having an affair and did not know how to handle it; she was caring for three children; she taught 7 children piano, and she just cracked. Appellant also had her babysit his children 2 or 3 times during the week. Respondent also testified to having an affair with a music instructor from Longview College. According to respondent, appellant paid only a total of $20.00 child support in 1978. Barnetski testified he paid about 10% of child support. There was an answer to interrogatories signed by respondent that appellant had paid $14,940 total toward child support obligations, but she testified that she did not know where that figure came from. The original decree provided for $45.00 per week child support to be paid by appellant except for the summer months when he had custody. That would have been in the neighborhood of $23,000 for the ten year period.\\nAt the close of the initial hearing, the trial court ordered a home study by the Juvenile Court \\\"to see what their thought is on the situation.\\\" The hearing resumed on April 18, 1980, and William J. Weiler testified: He was a deputy juvenile officer specializing in custody investigations. He had been employed in that capacity since November 13, 1979. His educational background consisted of a Master's Degree in philosophy, a Master's Degree in theology. He had three years of high school teaching and about eight years of college teaching experience, and twelve years of individual and family counselling. He interviewed appellant twice, once at the latter's home. He also interviewed the 3 children in the large, lower bedroom level of appellant's home separately and privately. He described that home as being in better than average condition. He also visited the very large, old farmhouse in which respondent resided when he interviewed her. He interviewed also those persons who were given as references by both parties. Respondent's information about her medical history corresponded with her medical records which he had. His recommendation to the court was that the children be returned to the custody of their mother, and that the father be given generous visitation rights but not for long periods of time, his concern being that long periods of time might involve appellant's using the children for long periods of hard work. The climate in appellant's home was one of tension and fear, but there were no signs of that in respondent's home.\\nThe children were interviewed separately by the trial court in chambers. One, who would have been 16 years old in two weeks, told the court that he had been with appellant since two weeks before school was out. Living in appellant's home were his two younger brothers, two little stepbrothers, a stepsister and a grandfather spent a lot of time there, besides appellant and his wife. He and his brothers had to live in the rec room, and he did not get along with appellant at all. He whipped the boys when they did not need it with a belt or across the face with his hand. He got mad when the older boy asked him about child support and started whipping him. The boy told him it was a year and a half that he remembered that appellant had paid child support. He whipped the boys because they did not do homework, but according to the boy there was no time to do it because they were out hauling firewood, which appellant sold from his ranch near Butler, Missouri, until 11:00 or 11:30 p. m. He would rather be with respondent, even knowing about Gepford. He told the court that appellant drank as much as respondent.\\nThe son, aged 14, wanted to go with his mother, \\\"[B]ecause from what I have heard she's a lot better.\\\" He knew that when he moved in with appellant, respondent had gone to the hospital for \\\"detox\\\". This son was getting along with his father \\\"so-so\\\". \\\"A. Every now and then he gets drunk or something and makes us work. I figure a little too much. Like, you know, his business is mainly real estate, but we have a farm and ranch, and we have to go down there and work a whole lot, and really, you know, I was born in the city and raised in the city. I don't especially care for farm work.\\\" His version was that both parties whipped them when they needed it as discipline. He told the court that he was not the type who got in trouble, but his two brothers tended to get in trouble a little more than he, so the smaller brother had been whipped with a belt. Although the boys had to awaken respondent when she slept late, she always fixed breakfast for them. The youngest son also expressed a preference to be with respondent.\\nAt the close of all the evidence, the trial court allowed $500.00 attorney's fees to respondent and remarked, \\\" It's remarkable how well the children have done under the conditions in which they have lived in both the mother's and father's homes. Neither home has anything positive to recommend it. One gets to the question of which is worse. The mother appears to be loving and caring for the children, but is apparently an alcoholic and in a very questionable moral situation. The father of the children never supported them, appears cold, and the children claim he uses them, and this appears true. He also has a violent temper. My observation at the time [original hearing] was, the children should be with the mother if she gets her act together, but in my opinion this probably will not happen. The father is a second choice. Then after that is the time that I ordered the home study which indicates, in the juvenile court worker's opinion, that the mother is in satisfactory condition to take care of the children now, and those are the reasons that I'm entering the judgment that I am.\\\" [Brackets added.] The court then entered a judgment finding, \\\"[A]fter hearing the evidence finds that a modification of child custody is not necessary; in that there has not been a substantial and continuing change of circumstances since the original decree of divorce; Appellant's temporary custody rights were reduced to one month per year during the childrens' summer vacation, to be agreed to by the parties.\\nAppellant's Point I, in essence, is that the evidence that his having custody was to the best interest of the teen-age sons, and the judgment was against the weight of the evidence in that respondent was openly and grossly immoral and did not furnish a proper home. He says further that respondent's evidence was insubstantial, contradictory and not credible, appellant should have been granted custody, the wishes of the sons notwithstanding, since his home is the only one which provides a proper environment for them.\\nThe evidence does show that respondent was having an affair with Gepford, and perhaps then with another man, during the time she was married to Barnetski, although she had not lived with the latter as husband and wife for two years. There is no evidence that any of these encounters took place in the presence of the sons, with the possible exception of Karl having seen respondent and Gepford embracing on the floor, to which appellant \\\"supposed\\\" Karl had seen on his way up to his room, testimony which the trial court did not have to believe. Respondent freely admitted that she had a problem with alcohol, by reason of which she commendably voluntarily relinquished custody to appellant while she sought treatment. She received treatment, and according to the evidence, had halted her use of alcohol, which in the trial court's determination removed 'that impediment to her having custody. Although respondent's technical extra-marital conduct would not measure up to accepted mores of society, there was no definite evidence that it had any adverse effect on the sons. See In re the Marriage of L_M_, 541 S.W.2d 760, 761[4, 5] (Mo.App.1976), where it was said, \\\"The mother's adultery does not alone mark her as unfit to have custody. It is the effect on the child, and exposure to unseemly conduct, which is the major consideration. (Citing cases.)\\\" See also In re Marriage of Noeltner, 569 S.W.2d 8, 10 (Mo.App.1978).\\nThe evidence was not insubstantial, contradictory or not credible. The court was entirely correct in ruling that there had been no substantial and continuing change of circumstances since the original decree. The evidence does not conclusively demonstrate that appellant's home environment is superior to that of respondent. The boys live in an improvised recreation room in appellant's home, where, as the evidence shows, is sometimes cold. They are required to labor in appellant's firewood business, sometimes in cold weather, thus supporting the finding that he is using them. He is further possessed of a violent temper as the testimony clearly reveals. Furthermore, these three sons, not being of tender years, expressed the preference to be with their mother. Their answers to questions put to them in conference show that they understood their situation, and those answers show that each of them have good intelligence. Another factor which the trial court could consider was appellant's failure to pay the stipulated child support in the past, thus demonstrating his lack of real concern for the children, as the trial court could conclude. Point I is overruled.\\nPoints II, III and IV are interrelated on the grounds that the trial court erroneously based its decision on the home study report (ordered to be made by the court); that the report was never offered into evidence, therefore this court is \\\"denied an essential record upon which it can function with confidence\\\"; that the court based its decision upon incompetent evidence, over objection of counsel, because it was based upon the home study report which was cursory and limited and could not support the judgment, and the refusal of the investigatory agency (the juvenile court) to consider more than five references, rendered the report inadequate; and that the social worker refused to comply with the statutory provisions [\\u00a7 452.390] and prevented access to his notes, and in admitting into evidence the social worker's conclusion because it was based upon hearsay and was inadmissible.\\nThe investigative report was not marked as an exhibit or received in evidence. Counsel for appellant was permitted to read it during a short recess of the trial, and quite apparently, he cross-examined witness Weiler about his investigation. That examination related principally to Weiler's direct examination testimony, with respect to which he clearly qualified as an expert and could give his opinions based upon his personal observations. In view of the testimony of the three children that they had been required to do hard work, Weiler's testimony that if appellant had custody for long periods of time, the hard work \\\"might\\\" continue, although of a speculative nature, is not grounds to set aside the judgment. There is no indication that the trial court based its judgment on the report, other than to remark, supra, \\\" I ordered the home study which indicates, in the juvenile worker's opinion, that the mother is in satisfactory condition to take of the children now, .\\\" What was clearly before the court was Weiler's testimony about what he observed and learned in conferring with the parties, thus there was no hearsay; there was no evidence that the investigatory agency refused to consider more than five references; there was no objection that the home study report was cursory and limited. There was no renewal of the objection that the social worker refused to comply with the requirements of \\u00a7 452.390 of giving to counsel copies of the report 10 days before trial, and no request was made for continuance to give opportunity to meet it. In sum, however, the evidence recounted above, including the three sons' preference to reside with their mother, is sufficient to support the trial court's judgment without the report which is merely corroborative. Points II, III and IV are overruled.\\nThe first part of the hearing concluded on December 17, 1979. The trial resumed on April 18, 1980, at which time the court informed appellant's counsel that he would not be permitted to interrogate as to events prior to December because \\\"I don't intend to go back and retry the case.\\\" Counsel then withdrew the question put to a witness, and proceeded to question her as to events since that date. No offer of proof was made as to any matter of newly discovered evidence. In this posture, no error may be predicated upon the trial court's limiting the evidence at the second phase of the hearing, and Point V relating to that matter is overruled.\\nAppellant, by Point VI(A), contends that the trial court erred in failing to give sufficient weight to the \\\"Missouri presumption\\\" that teenage sons should be placed in the father's custody. No such \\\"presumption\\\" exists in this state. Cited is 29 Mo. Bar Journal, 519, 520, where the salutary effect of a father having custody of a boy approaching adolescence years is discussed, so he could identify with him, as being one of the \\\"rules of thumb\\\" which a trial court could employ, all things being equal. See also Wood v. Wood, 400 S.W.2d 431 (Mo.App.1966). But here there was evidence that the appellant had a violent temper; the older son did not get along with him at all; he disciplined them with a strap and hitting them with his hand, and above all, each son expressed the preference to be with respondent. In these circumstances, the trial court correctly ruled that the best interests of the sons would be served by their remaining with respondent. Point VI(B) is that because of a temporary order of custody, made in August, 1979, to appellant, the burden of proof shifted to respondent to show a change of circumstances so substantial and continuing as to make the terms of the original judgment unreasonable. Appellant sought to modify the original decree, and thus the burden of proof to show changed circumstances was upon him as has often been held. See Randle v. Randle, 560 S.W.2d 876 (Mo.App.1977); Christianson v. Christianson, 592 S.W.2d 505 (Mo.App.1979). The fact that respondent voluntarily relinquished custody while she sought medical treatment, and the fact that a temporary order of custody was made pending hearing, do not change the rule. Point VI in its entirety is overruled.\\nAppellant attacks the trial court's procedure in interviewing the sons in chambers. The record shows that appellant's counsel was present, as required by statute, and participated. The record shows that the trial court did nothing to produce a chilling effect and the contention is frivolous. The trial court made a further finding that \\\"The father of the children never supported them\\\". This is in error, but the record supports the conclusion that appellant paid only a small portion of the $45.00 per week child support over the ten year period. No prejudice to appellant appears in the trial court's erroneous statement. Point VII raising these matters is overruled.\\nPoint VIII charges the trial court with error in restricting appellant's visitation rights to 30 days each summer. The grounds are that this matter was not put into issue by the pleadings, and the evidence was insufficient to support a sua sponte modification of the decree.\\nThe first ground is met by S_ v. G_, 298 S.W.2d 67, 74[14] (Mo.App.1957), where it was said, \\\"The court may award custody even though no request therefor has been made in a petition. And the books contain many cases where the court has disregarded the prayers of both parties and awarded custody in a manner not asked for by either.\\\" See also Allen v. Allen, 433 S.W.2d 580, 583 (Mo.App.1968), following S_ v. G_, supra, and noting the early case of In re Morgan, 117 Mo. 249, 22 S.W. 913 (1893); Smith v. Smith, 558 S.W.2d 785, 788 (Mo.App.1977). If a court may award custody without a request therefor in the best interests of a child, certainly it may do likewise in the matter of visitation rights. See Gayman v. Gayman, 559 S.W.2d 617, 618 (Mo.App.1977), quoting paragraph 2 of \\u00a7 452.400, and it was said, \\\"It leaves no room for doubt that the 'best interests' of the child is the polestar to guide on when charting restrictions to parental visitation rights.\\\" In the Gayman case, there was nothing said as to a necessity to find that in a restriction of visitation rights, the visitation would endanger the child's physical health or impair his emotional development. In this case, there was no entire restriction on appellant's visitation rights. There was just a reduction of the same, and thus there was no requirement to make the foregoing findings. The evidence is clearly sufficient to support the award, and Point VIII is overruled.\\nRespondent made an oral motion for her attorney fees, and the court allowed $500.00. There was no evidence as to the reasonableness of that fee in the light of the attorney's expenditure of time; there was no evidence of respondent's need to have her attorney's fees paid by appellant; and there was no evidence of his ability to pay the same. This necessitates remanding the portion of the case for further hearing. Stanfill v. Stanfill, 505 S.W.2d 438 (Mo.App.1974); Carr v. Carr, 480 S.W.2d 317 (Mo.App.1972).\\nThe judgment is reversed as to that part allowing attorney fees and the case is remanded for further proceedings thereon. In all other respects, the judgment is affirmed.\\nAll concur.\"}"
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+"{\"id\": \"9973727\", \"name\": \"STATE of Missouri, Plaintiff/Respondent, v. Jack DUNN, Defendant/Appellant\", \"name_abbreviation\": \"State v. Dunn\", \"decision_date\": \"1995-06-30\", \"docket_number\": \"No. 67118\", \"first_page\": \"352\", \"last_page\": \"352\", \"citations\": \"901 S.W.2d 352\", \"volume\": \"901\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:53:48.490837+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before REINHARD, P.J., and GARY M. GAERTNER and CRAHAN, JJ.\", \"parties\": \"STATE of Missouri, Plaintiff/Respondent, v. Jack DUNN, Defendant/Appellant.\", \"head_matter\": \"STATE of Missouri, Plaintiff/Respondent, v. Jack DUNN, Defendant/Appellant.\\nNo. 67118.\\nMissouri Court of Appeals, Eastern District, Division One.\\nJune 30, 1995.\\nRichard Andrew Darry, II, Althea Johns, St. Louis, for appellant.\\nMargaret D. Landolt, Asst. Pros. Atty., St. Louis County, Clayton, for respondent.\\nBefore REINHARD, P.J., and GARY M. GAERTNER and CRAHAN, JJ.\", \"word_count\": \"132\", \"char_count\": \"823\", \"text\": \"ORDER\\nPER CURIAM.\\nDefendant appeals the judgment following his conviction by a jury of assault in the third degree, \\u00a7 565.070 RSMo 1994, for which he was fined $500. We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. A written opinion would have no precedential value nor serve any jurisprudential purpose. We therefore affirm the judgment of the trial court pursuant to Rule 30.25(b).\"}"
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+"{\"id\": \"9973993\", \"name\": \"Jerry Paul EASTON, Movant-Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"Easton v. State\", \"decision_date\": \"1989-02-07\", \"docket_number\": \"No. 15741\", \"first_page\": \"661\", \"last_page\": \"665\", \"citations\": \"765 S.W.2d 661\", \"volume\": \"765\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T23:18:03.549407+00:00\", \"provenance\": \"CAP\", \"judges\": \"HOLSTEIN, C.J., and CROW, P.J., concur.\", \"parties\": \"Jerry Paul EASTON, Movant-Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"Jerry Paul EASTON, Movant-Appellant, v. STATE of Missouri, Respondent.\\nNo. 15741.\\nMissouri Court of Appeals, Southern District, Division One.\\nFeb. 7, 1989.\\nMotion for Rehearing or to Transfer to Supreme Court Denied Feb. 28, 1989.\\nElizabeth A. Bock, Asst. Public Defender, Springfield, for movant-appellant.\\nWilliam L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for respondent.\", \"word_count\": \"2259\", \"char_count\": \"13702\", \"text\": \"GREENE, Judge.\\nMovant, Jerry Paul Easton, appeals from the denial, after evidentiary hearing, of his motion, filed pursuant to Rule 27.26, in which he sought to vacate his convictions, after jury-trial, of the crimes of armed robbery, sodomy, and attempted murder, for which he received sentences of 50 years for the robbery, 25 years for the sodomy, and 10 years for the attempted murder, with the sentences to run consecutively. The convictions were affirmed on appeal, State v. Easton, 577 S.W.2d 953 (Mo.App. 1979), in which opinion the appellate court characterized the acts of Easton and his accomplice in robbing, sodomizing, and attempting to murder the 70 year-old proprietress of a Springfield, Missouri motel as degenerate.\\nIn 1987, some nine years after the af-firmance of the convictions, Easton filed a pro se motion to vacate them, which motion was amended by court appointed counsel. An evidentiary hearing was held, after which the hearing court made findings of fact and conclusions of law, based upon which it denied relief. This appeal followed.\\nAlthough the pro se motion and its amendment alleged numerous grounds which Easton contended entitled him to the relief requested, the briefs filed here on Easton's behalf complain only of the hearing court's findings and conclusions on two issues. We, therefore, confine our review to the matters preserved on appeal, keeping in mind the legal principle that our review is limited to a determination of whether the findings, conclusions, and judgment of the hearing court were clearly erroneous. Rule 27.26(j) (repealed effective 1-1-88).\\nBoth of Easton's claims of court error rest on his contention that he had ineffective assistance of trial counsel. He first asserts that he \\\"was denied effective assistance of counsel when his trial counsel misled the movant by promising the mov-ant he would receive a maximum of thirty-five years if he confessed to the crime of first degree robbery when he took the witness stand in his own defense, and in failing to explain to movant the proper procedure to accept a pending plea offer, and movant was thereby prejudiced by his reliance on his attorney's misrepresentation.\\\"\\nOn this issue, the motion court found that while Easton had alleged at the evi-dentiary hearing that his trial counsel was ineffective for failing to advise Easton not to testify, and for promising Easton that if he did testify he would not receive a sentence in excess of 35 years imprisonment, his trial attorney had testified that he had discussed the issue with Easton as to whether he should testify, and that Easton had testified of his own free will. It also found that Easton's trial attorney had testified that he had never promised Easton he would receive any certain sentence if he testified. On the basis of this conflicting evidence, the hearing court concluded: \\\"Movant's allegation 8D in his amended motion concerning letting Movant testify and promising him a limited sentence in exchange for his testimony affords no basis for relief since Movant's allegations are completely refuted by the record, the evidence and the testimony of Movant's counsel.\\\"\\nThe sole issue on this point is a matter of credibility, which was for the trial court to determine. Black v. State, 723 S.W.2d 474, 475 (Mo.App.1986). In determining that issue, the hearing court had a right to consider the fact that Easton waited nine years after his convictions until he decided that his trial counsel was ineffective, and only did so then after counseling with Melvin Leroy Tyler, a self-appointed jailhouse lawyer who was an inmate of the same penal institution where Easton was confined. The hearing court chose to believe the trial attorney's version of the events, which it had a right to do. See Miller v. State, 603 S.W.2d 29 (Mo.App.1980). The hearing court's findings and conclusions on this issue were not clearly erroneous.\\nEaston's remaining point, presented in a pro se brief that we are not obliged to consider but do so gratuitously, is somewhat incoherent. It seems to be alleging that his trial counsel was ineffective because the attorney did not move to suppress Easton's confession to the robbery charge, which he gave after being arrested in the state of Illinois. On this issue, the hearing court found and concluded:\\nThat Movant's confession, trial testimony, and defence [sic] theory were all in harmony and did not contradict each other.\\nThat the trial transcript shows facts which would render a Motion to Suppress meritless.\\nThat Movant's trial testimony was consistent with his confession.\\nThat Plaintiff's trial testimony was not a confession as he denied many of the acts.\\nThat Plaintiff's testimony at trial had already been entered through his confession and was not inconsistent with that confession.\\nThat the trial transcript reflects that a Motion to Suppress Movant's confession would have been meritless and unsuccessful.\\nThe failure to file a Motion to Suppress does not, of iteself [sic], constitute ineffective assistance of counsel. Tollison v. State, 556 S.W.2d 455 (Mo.App.1987 [1977]).\\nNo 27.26 action will lie where Movant's confession and trial testimony are in harmony. Hines v. State, 691 S.W.2d 918 (Mo.App.1985).\\nA 27.26 Movant is not entitled to relief for failure to file a Motion to Suppress where the record shows such a motion shall be without merit. Dayton v. State, 608 S.W.2d 490 (Mo.App.1980).\\nMovant's allegation 8A concerning the failure to attempt to suppress his confession affords no basis for relief since the record from trial indicates that such a motion would have been meritless and since the confession corroborates and bolsters, Movant's trial testimony.\\nMovant's allegation 8A of his amended motion concerning the failure to file a motion to suppress his confession affords no basis for relief since the evidence proves that trial counsel did review the evidence of Movant's arrest in detail and such motion would have been futile.\\nThe hearing court, in making its decision regarding the failure of trial counsel to file a motion to suppress the confession of Ea-ston, had access to the trial transcript, which we have obtained and made part of the record in this case. The transcript indicates that on May 16, 1977, Easton and Rezabek were arrested while attempting to flee from a motel in Collinsville, Illinois. They were apprehended by Collinsville police officers who were investigating a stolen car report. Both men were armed, and Easton gave a fictitious name at the time of arrest, but later admitted his true identity. Both men were advised of their constitutional rights immediately following their arrest, but evidently made no statements to the arresting officers regarding the crimes that had been committed in Springfield.\\nThe next day, two Springfield police officers, Walter Ayres and Carl Malin, went to Collinsville, Illinois to interview the two men. Before they were interviewed, the two men were advised of their constitutional rights, and signed a waiver of rights form. Easton then admitted that he had planned and committed the robbery, but denied the sodomy and attempted murder, saying that if those crimes had occurred, they were committed by Rezabek, as Ea-ston had left the motel to take the robbery money to the car leaving Rezabek with the victim. He said Rezabek later told him that the victim had been \\\"messed up a little.\\\" At trial, Easton's testimony was consistent with the confession he had made to the Springfield police officers in that he admitted participation in the robbery, but denied participation in the sodomy and attempted murder.\\nOn this point, Easton first contends that his confession was obtained after he was denied counsel and during the time \\\"he was clearly under illegal arrest in the State of Illinois.\\\" He contends that his testimony to that effect in the evidentiary hearing \\\"clearly proves this.\\\"\\nThe hearing court was under no obligation to believe Easton's testimony. He admitted at the trial that he had lied to the police about several facts. As to Ea-ston's contention that he was denied counsel, four police officers testified at trial that before Easton was asked any questions concerning the Springfield crimes, the Miranda warnings were read to him. These warnings contain the advice that a person has a right to counsel before he answers any questions, and that if he cannot afford a lawyer, one can be provided for him. Miranda v. Arizona, 384 U.S. 436, 444, 479, 86 S.Ct. 1602, 1612, 1630, 16 L.Ed.2d 694 (1966). In the written waiver of his rights, which was read to him before he signed it, Easton was again advised of his right to counsel before being questioned. He appeared to understand this right, and wished to waive it. The hearing court was entitled to believe this evidence, and did so.\\nThe second part of Easton's initial contention on this point is that he was arrested without probable cause and, therefore, being detained by reason of an illegal arrest. Even if Easton's arrest in Illinois had been illegal, that fact alone would not vitiate his subsequent confession of the robbery charge, if it was shown that the confession was voluntary. State v. Joiner, 562 S.W.2d 768, 769 (Mo.App.1978)\\nHere, the evidence was conclusive that the confession was voluntary. This is indicated not only by the testimony of four police officers involved in the arrest and questioning, but also by the testimony of Easton at the evidentiary hearing. In answer to a question by his own attorney, \\\"Do you feel that your statement to the police was voluntary?\\\" Easton responded, \\\"Yeah, I think it was.\\\" In addition, there is evidence in the record that strongly supports the conclusion that the arrest of Ea-ston and his accomplice were not illegal. The following excerpt is from Easton's testimony at the evidentiary hearing with the questions being directed by Easton's attorney:\\nQ. (By Miss Bock) Would you tell the Court, please, the circumstances of your arrest?\\nA. On the morning of my arrest, the police had located a stolen car in the parking lot. The car was not registered to any room, and they were investigating this car. During their investigating this car, a janitor told one of the officers that he'd seen two people leave the back gate, you know, out of the motel. The officers reacted to it and arrested us. But at the time they did, they had no reason to connect us to that car.\\nQ. Are you the one that registered for the group at the Round Table Motor Lodge?\\nA. I registered for the room, yes.\\nQ. Did you put the car registration on the license of the Volkswagen on the room registration?\\nA. No.\\nQ. So you're saying, when Officer \\u2014 I believe it's Borkowski \\u2014 testified that he got the room number that you all were in off the stolen car registration that he was mistaken or lying. Is that correct?\\nA. That car's plate number was not on the registration for that room. However, the people that registered the room knew we came in the car, but the car's plate number was not on that registration.\\nQ. So when the officer testified that it was, he was testifying incorrectly?\\nA. Yes.\\nOne of the arresting officers, whose name was Ronald Borkowski, testified at trial that while they were checking with the room clerk of the Collinsville motel regarding which of their guests claimed ownership of the vehicle in question, a 1962 Volkswagen, a motel employee told the police officers some people were jumping out a back window of the motel. The officers chased the subjects, catching Easton, Reza-bek, and one other man. Rezabek had a loaded .22 caliber pistol stuck in the waistband of his pants, while Easton was carrying a shaving kit that contained a 9 mm Smith and Wesson pistol.\\nThis evidence was not disputed by Ea-ston, and justified probable cause for the arrest and detention of Easton and Reza-bek for investigation of the crimes of auto theft and carrying concealed weapons. The arrest was not illegal.\\nEaston's final argument is that his trial counsel should have moved to suppress his confession, and failure to do so constituted ineffective assistance of counsel. Since Ea-ston's arrest was not illegal, the failure of his trial counsel to file a motion to suppress the confession did not constitute ineffective assistance of counsel, as such a motion would have been meritless. Dayton v. State, 608 S.W.2d 490, 491 (Mo.App.1980).\\nEaston's trial attorney, who had about 30 years' experience in the practice of criminal law, and was a college instructor in the law of arrest, detention, search and seizure, and constitutional law, stated if there had been any issue regarding the arrest or confession, he would have raised it.\\nOur review of the record demonstrates that the hearing court's findings and conclusions on this issue were not clearly erroneous.\\nThe judgment of the hearing court overruling Easton's motion to vacate is affirmed.\\nHOLSTEIN, C.J., and CROW, P.J., concur.\\n. Rule 27.26 was repealed effective January 1, 1988. Page 142, Missouri Rules of Court (19th ed. 1988). The instant proceeding continues to be governed by Rule 27.26, as the sentences were pronounced prior to January 1, 1988, and movant's motion under Rule 27.26 was pending prior to January 1, 1988. Rule 29.15(m), Missouri Rules of Criminal Procedure (19th ed. 1988).\"}"
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diff --git a/mo/9974622.json b/mo/9974622.json
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+"{\"id\": \"9974622\", \"name\": \"STATE of Missouri, Respondent, v. Giles CHAPMAN, Appellant\", \"name_abbreviation\": \"State v. Chapman\", \"decision_date\": \"1982-02-09\", \"docket_number\": \"No. 62648\", \"first_page\": \"597\", \"last_page\": \"600\", \"citations\": \"627 S.W.2d 597\", \"volume\": \"627\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Supreme Court of Missouri\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:17:34.181463+00:00\", \"provenance\": \"CAP\", \"judges\": \"WELLIVER, P. J., and SEILER, J., concur.\", \"parties\": \"STATE of Missouri, Respondent, v. Giles CHAPMAN, Appellant.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Giles CHAPMAN, Appellant.\\nNo. 62648.\\nSupreme Court of Missouri, Division No. 2.\\nFeb. 9, 1982.\\nMotion for Rehearing and to Transfer to Court En Banc Denied March 9, 1982.\\nKenneth R. Singer, St. Louis, for appellant.\\nJohn Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, for respondent.\", \"word_count\": \"1928\", \"char_count\": \"11251\", \"text\": \"JAMES K. PREWITT, Special Judge.\\nAppellant was convicted of first degree murder and sentenced to life imprisonment. The only substantial evidence linking appellant to the murder was a tape recorded statement he gave the police. He repudiated the truth of it at a hearing on his motion to suppress and at trial, saying he admitted participating in the murder \\\"[ujnder fear\\\" because of threats made by the police. Appellant offered evidence that he was elsewhere when the victim was shot. He contends the trial court erred: (1) in allowing the jury to hear the statement because it was the result of an arrest without probable cause, and (2) in denying his request for a mistrial when a police officer testified that he told appellant that the police had information that while appellant held the victim, O'Neal Saunders, appellant told an accomplice to shoot Saunders.\\nOn October 17, 1979, between the hours of 8:00 and 9:00 p. m., three black males were seen walking in a westerly direction on the south side of the 4700 block of Martin Luther King Drive in the city of St. Louis. Two of the males were approxi mately the same height and one was considerably taller. Nearby O'Neal Saunders was working on an automobile parked next to the south curb. A shot was heard and the three males ran from the street and went down an alley. None of the witnesses who saw the three identified appellant. Saunders went across the street to an auto supply store where he collapsed and died. The cause of death was a gunshot wound.\\nOn the evening of the shooting the police received a call from an unidentified person who stated that he would give them information concerning the shooting if he did not have to testify or give his name or address. He met with the police and told them that before the shooting he had been with appellant, appellant's brother, and Larry Hill, and that the three had discussed committing a robbery. The informant said he was about half a block away from them when he saw appellant and Hill walk up to a man who was working on an automobile; that Hill placed a revolver at the man's head; that the man tried to run away; that appellant grabbed him and said to shoot him; that Hill said to let him go; that appellant did and Hill shot him. The informant then showed the police where the three lived. The police officers stated that they did not know the informant and were unaware of any previous information which he may have given the police.\\nOn October 25, 1979, appellant was arrested. Appellant's statement, given shortly after noon that day, said that he and Larry Hill attempted to rob Saunders and when he resisted, Hill shot him. Appellant and Hill were approximately the same height. Appellant's statement said that just previously Hill had told appellant's brother that he should not participate in the robbery because he was too tall \\\"to try to do anything\\\".\\nAppellant contends that the information received by the police officers was insufficient to establish probable cause on which to arrest him. The existence of probable cause depends upon the facts of each case and is determined by factual and practical considerations on which reasonable and prudent men would act. State v. Whorton, 487 S.W.2d 865, 868 (Mo.1972); State v. Grady, 548 S.W.2d 601, 608 (Mo.App.1977). Probable cause exists where the facts and circumstances within the police officers' knowledge, and of which they have reliable and trustworthy information, would warrant a person of reasonable caution to believe that the person being arrested had committed the offense. State v. Moore, 580 S.W.2d 747, 749 (Mo. banc 1979); State v. Kimball, 613 S.W.2d 932, 936 (Mo.App.1981). It is not required for probable cause that an informant be one whose reliability has previously been established; the true inquiry is whether the information is reliable and if it can be corroborated through other sources such that it reduces the chances of a \\\"reckless or prevaricating tale,\\\" the information may form the basis of probable cause for an arrest. State v. Moore, supra, 580 S.W.2d at 749; State v. Wiley, 522 S.W.2d 281, 288 (Mo. banc 1975). An officer may act on information received so long as it describes the criminal activity in sufficient detail to distinguish the accusation from rumor and allows independent corroboration. State v. Kent, 535 S.W.2d 545, 549 (Mo.App.1976). See also State v. Boyd, 492 S.W.2d 787 (Mo.1973), cert. denied, 414 U.S. 1069, 94 S.Ct. 579, 38 L.Ed.2d 475 (1973).\\nThe visual information stated by the informant was substantially the same as that given the police by other eye witnesses. However, the informant purported to know who the three males were and their purpose in the shooting. He also overheard certain things said by appellant and Hill just before the shooting. The informant's description of the shooting was consistent with the other information received by the officers, and with the detail given, we believe a reasonable person could believe his account and act on it. The trial court found that probable cause existed for the arrest, and that the statement given was voluntary. We believe there was a sufficient basis for those findings. Point one is denied.\\nAppellant's second point states that the court erred in refusing to grant a mistrial when a police officer testified that he told appellant the police had information that while appellant held Saunders he told Hill to shoot Saunders. Earlier an objection was made to the assistant circuit attorney asking the officer if he told appellant that he had information that appellant was holding Saunders and telling Hill to shoot him. At a bench conference the trial judge said that the form of the question was objectionable but that it was proper for the state \\\"to bring out any inconsistency between what the police told him and the statement that the appellant made, because if there are inconsistencies that would tend to prove it was voluntary.\\\" The assistant circuit attorney then proceeded to question the witness as follows:\\n\\\"Q Did you tell the Defendant that you had information about what happened to O'Neal Saunders?\\nA I did.\\nQ Okay. After you told him, did you tell him the contents of the information that you had?\\nA Yes, I did.\\nQ And after you told him that, is that when he related his participation?\\nA That's correct.\\nQ Okay. The participation that he related, was it exactly the same as the information you had received?\\nA It was not.\\nQ There are some parts that were different; is that correct?\\nA Yes.\\nQ Did you tell him that you had information that\\u2014\\nMS. BLACK: Objection; leading.\\nTHE COURT: Well, I'm going to have to hear the question, and then I'll \\u2014 then you object, Miss Black, and I'll rule. Didn't get far enough yet.\\nQ (By Mr. Rogers) Did you tell him that you had information that while he held O'Neal Saunders \\u2014 \\\"He\\\" means the Defendant, Giles Chapman \\u2014 He had said, \\\"Shoot the mother fucker! Shoot the mother fucker!\\\" Did you tell him that you had that information?\\nA I did.\\nQ Did he admit to saying that in his statement?\\nA No, he did not.\\nMS. BLACK: I assume my objection made at the bench is continuing throughout this questioning.\\nTHE COURT: Well, I'm going to sustain the objection to that particular question, and ask that it be stricken.\\nWhat I was trying to indicate was that you show that some of the things that the Defendant himself said was inconsistent. Now, what you brought out, Mr. Rogers, is things the Defendant did not say that is inconsistent. I don't know how I could make my ruling any clearer. For example, the Defendant says his brother was not involved. Now, that is a positive statement by the Defendant. You may, if it \\u2014 you know, inquire as to whether they told him his brother was involved.\\nThat's the kind of thing that I was dealing with. Not the negative, not what is omitted, but what he actually said.\\nDo you understand that, Miss Black?\\nMR. ROGERS: Very Well.\\nTHE COURT: I'm not indicating that is true.\\nMS. BLACK: I understand, but in connection with that I would have moved for a mistrial, because Mr. Rogers was able to get out that kind of hearsay, prejudicial information, from a non-existent person, as far as we are concerned.\\nTHE COURT: Well, the motion for a mistrial will be denied, but the jury will .be instructed to disregard the last question and the last response.\\nIt's not evidence, and you must not consider it as evidence.\\\"\\nAs no timely objection was made, we consider whether the question and answer complained of was plain error under Rule 30.20. The state does not contend that the question was proper but contends that the hearsay question and answer did not warrant a mistrial, especially in view of the trial court's admonition. The question obviously called for hearsay and if it and the answer were admitted in evidence it would appear to be prejudicial.\\nThe judge's admonition was directed to the last question and last response, but it was the previous question and answer which put the hearsay before the jury. The judge and the lawyers may have considered that the judge's remarks were directed at the next to last question and answer but the jurors might not have understood which question and answer they were not to consider. One or more of the jurors may have determined that they could consider for its truth the information the police received that defendant told Hill to shoot Saunders. This would result in the admission of prejudicial hearsay which could have resulted in a miscarriage of justice. See State v. Sykes, 569 S.W.2d 258 (Mo.App.1978). See also State v. Kirkland, 471 S.W.2d 191 (Mo.1971). The nature of the information and the language purportedly used by appellant would create a tendency for the question and answer to remain in the jurors' memory. We do not decide if a clear admonition not to consider the question and answer might have cured any prejudice created; we only hold that without such, the prejudice may have continued and resulted in a miscarriage of justice. Point two is ruled in favor of appellant.\\nAfter the case was submitted appellant filed a motion to consider an additional allegation of error, which motion was taken with the case. IL concerns a matter which may not be an issue on retrial and therefore is denied.\\nThe judgment is reversed and the cause is remanded for a new trial.\\nWELLIVER, P. J., and SEILER, J., concur.\\nHIGGINS, J., dissents in separate dissenting opinion filed.\"}"
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diff --git a/mo/9974896.json b/mo/9974896.json
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+"{\"id\": \"9974896\", \"name\": \"PRESTO FOOD PRODUCTS, INC., Plaintiff/Respondent, v. APPLE LINES, INC., Defendant/Appellant\", \"name_abbreviation\": \"Presto Food Products, Inc. v. Apple Lines, Inc.\", \"decision_date\": \"1988-09-27\", \"docket_number\": \"No. WD 40175\", \"first_page\": \"476\", \"last_page\": \"476\", \"citations\": \"758 S.W.2d 476\", \"volume\": \"758\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:06:41.069173+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before CLARK, P.J., and LOWENSTEIN and FENNER, JJ.\", \"parties\": \"PRESTO FOOD PRODUCTS, INC., Plaintiff/Respondent, v. APPLE LINES, INC., Defendant/Appellant.\", \"head_matter\": \"PRESTO FOOD PRODUCTS, INC., Plaintiff/Respondent, v. APPLE LINES, INC., Defendant/Appellant.\\nNo. WD 40175.\\nMissouri Court of Appeals, Western District.\\nSept. 27, 1988.\\nDavid B. Sexton, Jane Pansing Brown, Kansas City, for defendant/appellant.\\nTom B. Kretsinger, Liberty, for plaintiff/respondent.\\nBefore CLARK, P.J., and LOWENSTEIN and FENNER, JJ.\", \"word_count\": \"73\", \"char_count\": \"514\", \"text\": \"ORDER\\nPER CURIAM\\nAppeal from decision of trial court entering judgment against Apple Lines, Inc., and in favor of Presto Food Products, Inc.\\nAFFIRMED. Rule 84.16(b).\"}"
\ No newline at end of file
diff --git a/mo/9975478.json b/mo/9975478.json
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--- /dev/null
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+"{\"id\": \"9975478\", \"name\": \"James D. EDWARDS, Movant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"Edwards v. State\", \"decision_date\": \"1991-05-07\", \"docket_number\": \"No. 56834\", \"first_page\": \"163\", \"last_page\": \"164\", \"citations\": \"809 S.W.2d 163\", \"volume\": \"809\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:31:37.487215+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"James D. EDWARDS, Movant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"James D. EDWARDS, Movant, v. STATE of Missouri, Respondent.\\nNo. 56834.\\nMissouri Court of Appeals, Eastern District, Division One.\\nMay 7, 1991.\\nHenry B. Robertson, St. Louis, for mov-ant.\\nWilliam L. Webster, Atty. Gen., Joan F. Edwards, Asst. Atty. Gen., Jefferson City, for respondent.\", \"word_count\": \"259\", \"char_count\": \"1552\", \"text\": \"ORDER\\nPER CURIAM.\\nMovant, James D. Edwards, appeals the denial of his Rule 29.15 motion after an evidentiary hearing. We affirm.\\nMovant was originally sentenced prior to January 1, 1988. Movant filed a pro se motion under Rule 27.26 (repealed 1988) on March 18, 1987, which was overruled with prejudice on March 24, 1987. On April 15, 1987, movant filed a second pro se amended motion to vacate, set aside or recall the mandate. The motion was overruled on April 23, 1987, and no appeal was taken. On April 18,1987, movant filed another pro se motion to vacate pursuant to Rule 27.26 and on November 2, 1987 movant withdrew this motion without prejudice.\\nOn June 3, 1988, movant filed his Rule 29.15 motion. Movant filed an untimely and unverified amended motion on December 14, 1988. The motion court issued its findings of fact and conclusions of law on May 5, 1989.\\nAlthough the motion court did not deny movant's 29.15 motion on the grounds of it being a successive post-conviction relief motion, Rule 29.15(m) specifically prohibits the filing of a Rule 29.15 motion if a prior motion for post-conviction relief has been filed pursuant to Rule 27.26. Burroughs v. State, 774 S.W.2d 559, 560 (Mo.App.1989).\\nJudgment is affirmed in accordance with Rule 84.16(b).\"}"
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diff --git a/mo/9975804.json b/mo/9975804.json
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+"{\"id\": \"9975804\", \"name\": \"Arthur BROWN, Plaintiff-Appellant, v. BOARD OF ZONING ADJUSTMENT OF the CITY OF KANSAS CITY, Missouri, and Codes Administration Division of the Public Works Department of Kansas City, Missouri, Defendants-Respondents, and Ronald G. Fago, Defendant-Intervenor\", \"name_abbreviation\": \"Brown v. Board of Zoning Adjustment of Kansas City\", \"decision_date\": \"1985-07-30\", \"docket_number\": \"No. WD 36291\", \"first_page\": \"554\", \"last_page\": \"554\", \"citations\": \"698 S.W.2d 554\", \"volume\": \"698\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T01:07:37.108799+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LOWENSTEIN, P.J., and SHAN-GLER and SOMERVILLE, JJ.\", \"parties\": \"Arthur BROWN, Plaintiff-Appellant, v. BOARD OF ZONING ADJUSTMENT OF the CITY OF KANSAS CITY, Missouri, and Codes Administration Division of the Public Works Department of Kansas City, Missouri, Defendants-Respondents, and Ronald G. Fago, Defendant-Intervenor.\", \"head_matter\": \"Arthur BROWN, Plaintiff-Appellant, v. BOARD OF ZONING ADJUSTMENT OF the CITY OF KANSAS CITY, Missouri, and Codes Administration Division of the Public Works Department of Kansas City, Missouri, Defendants-Respondents, and Ronald G. Fago, Defendant-Intervenor.\\nNo. WD 36291.\\nMissouri Court of Appeals, Western District.\\nJuly 30, 1985.\\nRehearing Denied Oct. 1, 1985.\\nTimothy S. Frets, Baker & Sterchi, Kansas City, for plaintiff-appellant.\\nRichard N. Ward, City Atty., Kathleen Hauser, Heather Brown, Asst. Atty., Kansas City, for defendants-respondents.\\nGerald L. Thompson, Landman & Thompson, Kansas City, for defendant-intervenor.\\nBefore LOWENSTEIN, P.J., and SHAN-GLER and SOMERVILLE, JJ.\", \"word_count\": \"143\", \"char_count\": \"1009\", \"text\": \"ORDER\\nPER CURIAM.\\nAppeal from summary judgment in favor of Board of Zoning Adjustment of the City of Kansas City, Missouri, and Codes Administration Division of the Public Works Department of Kansas City, Missouri, and against Arthur Brown on the latter party's petition for writ of mandamus.\\nAffirmed. Rule 84.16(b).\"}"
\ No newline at end of file
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+"{\"id\": \"9977429\", \"name\": \"STATE of Missouri, Respondent, v. Jerry COOK, Appellant; Jerry COOK, Movant-Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"State v. Cook\", \"decision_date\": \"1992-04-14\", \"docket_number\": \"Nos. 59456, 60787\", \"first_page\": \"474\", \"last_page\": \"475\", \"citations\": \"830 S.W.2d 474\", \"volume\": \"830\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T00:21:03.060850+00:00\", \"provenance\": \"CAP\", \"judges\": \"GRIMM, P.J., and SATZ, J., concur.\", \"parties\": \"STATE of Missouri, Respondent, v. Jerry COOK, Appellant; Jerry COOK, Movant-Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Jerry COOK, Appellant; Jerry COOK, Movant-Appellant, v. STATE of Missouri, Respondent.\\nNos. 59456, 60787.\\nMissouri Court of Appeals, Eastern District, Division Two.\\nApril 14, 1992.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied May 19, 1992.\\nApplication to Transfer Denied June 30, 1992.\\nJ. Gregory Mermelstein, Columbia, for appellant.\\nWilliam L. Webster, Atty. Gen., Robin H. Grissom, Asst. Atty. Gen., Jefferson City, for respondent.\", \"word_count\": \"322\", \"char_count\": \"2058\", \"text\": \"CRANDALL, Judge.\\nDefendant, Jerry L. Cook, appeals from his conviction, following a jury trial, for robbery in the second degree. Defendant was sentenced as a prior and persistent offender to imprisonment for fifteen years. Defendant also appeals the dismissal of his Rule 29.15 motion without an evidentiary hearing. Appeals dismissed.\\nFollowing his conviction, defendant was ordered to appear for sentencing on June 11, 1990. Defendant failed to appear and a warrant was issued. Defendant was arrested on October 30, 1990, and was finally sentenced on November 20, 1990. The State has moved to dismiss both appeals because he absconded from sentencing.\\nA person who attempts to escape the justice system is barred from pursuing appeals from either the trial court or the motion court. State v. Schleeper, 806 S.W.2d 459, 460 (Mo.App.1991); Rulo v. State, 804 S.W.2d 866 (Mo.App.1991). This escape rule preserves the integrity of the criminal justice system by requiring that those who seek its protection to submit to its authority. Rulo, 804 S.W.2d at 866.\\nHere, defendant attempted to avoid the authority of the criminal justice system by failing to appear at his sentencing. He now argues that justice requires the same system to intervene on his behalf. By failing to submit to its- authority, defendant has forfeited his right to seek relief from the criminal justice system.\\nAppeals dismissed.\\nGRIMM, P.J., and SATZ, J., concur.\\n. We have reviewed the record, ex gratia, and conclude that the State clearly made a submissi-ble case of robbery in the second degree.\"}"
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+"{\"id\": \"998440\", \"name\": \"The German Lutheran Church, Appellant, v. F. G. Walther, Respondent\", \"name_abbreviation\": \"German Lutheran Church v. Walther\", \"decision_date\": \"1890-11-10\", \"docket_number\": \"\", \"first_page\": \"68\", \"last_page\": \"72\", \"citations\": \"42 Mo. App. 68\", \"volume\": \"42\", \"reporter\": \"Missouri Appeal Reports\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:36:31.401059+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concur.\", \"parties\": \"The German Lutheran Church, Appellant, v. F. G. Walther, Respondent.\", \"head_matter\": \"The German Lutheran Church, Appellant, v. F. G. Walther, Respondent.\\nKansas City Court of Appeals,\\nNovember 10, 1890.\\n1. Costs : TAXING AGAINST PARTIES NOT OF RECORD. On a motion to retax costs, persons, not parties to the original suit, cannot have judgment rendered against them for costs of such action.\\n2. Damages: suit wrongfully brought in another\\u2019s name. If parties wrongfully and without authority institute an action in another\\u2019s name, they have committed a wrong for which they can \\u2022 be held liable in a legal way, if any injury or damage result to anyone.\\nAppeal from the Chariton Circuit Court. \\u2014 Hon. G. D. Burgess, Judge.\\nReversed.\\nI. H. Kinley, A. W. Mullins and C. Hammond, for appellant.\\n(1) Re taxation of costs is done when the clerk errs in fixing the amount of costs, and is in nowise a revision, alteration or modification of a judgment rendered at a previous term. Bulle v. Beimlu, 28 Mo. 583; Jaclcson t>. Railroad, 89 Mo. 104. (2) The judgment rendered in favor of defendant Walther against plaintiff, the German Lutheran Church, for costs, was a final judgment. Rogers p. Gosnell, 51 Mo. 466. (3) After the term .has closed the court has no further control over the judgments except by nunc pro tunc orders. These orders can only make the judgment roll conform to the actual judgment rendered by the court. Beelcin v, Rhodes, 76 Mo. 643 ; Gillett v. Banlc, 56 Mo. 304. (4) There' is no pretense of surprise or fraud, and hence there can be no authority for setting this judgment aside. Harbor \\u00bb. Railroad, 32 Mo. 423; Jaclcson v. Railroad, 89 Mo. 104. (5) The judgment rendered against appellants, who were not parties to the suit, and without any process or notice to show cause, was in clear violation of the universally accepted rule that every party is entitled to his day in court. (6) An error in the court rendering judgment is not cured by the statute of jeofails ; it can only be corrected by an appeal or writ of error. Ashby v. Glasgow, 7 Mo. 320 ; Hill \\u00bb. St. Louis, 20 Mo. 584; Brewer r. Dinwiddie, 25'Mo. 351. For the foregoing reasons we insist that the judgment of the lower court is erroneous and should be reversed.\\nSam. Majors and Tyson S. Lines for respondent.\\n(1) No effort was made to modify the judgment. By the motion it was sought to correct an error of the clerk. The judgment was that defendant \\u201crecover of plaintiff his costs.\\u201d The clerk taxed these costs against the church, which was not the plaintiff. The motion sought to have the costs taxed as provided by the judgment. The court may, at a term subsequent to the trial term, entertain a motion to retax the costs, where the clerk, by mistake or error, has taxed them against the wrong party. Dulle v. Leimlu, 28 Mo. 583. (2), The real party instituting a suit will, when discovered, be held liable for the costs, whether joined as a party or not. Balcer n. Raley, 18 Mo. App. 563 ; State ex rel. n. Railroad, 78 Mo. 575. (3) The matter of the taxation and retaxation of costs in favor of or against the parties is a matter left largely to the discretion of the trial judge, and, unless the record shows clearly and affirmatively that this discretion has been abused, his rulings in such matters will not be disturbed. Walton v. Walton, 19 Mo. 667. (4) The appellants waived notice of the motion to retax costs by appearing in court and arguing it. State ex rel. v. Smith, 13 Mo. App. 421. (5) Assuming that the facts alleged in motion to retax costs are true, should the court not have sustained the motion % This court will assume that they are true, for the following reasons: First. They have been passed upon by a trial court, and the proof adduced or brought to the mind of the trial judge has not all been brought up here for review. Second. Every presumption is in favor of the correctness of the ruling in the lower court, and this must be rebutted by the record.\", \"word_count\": \"1272\", \"char_count\": \"7324\", \"text\": \"Ellison, J.\\nAn ejectment suit by plaintiff, or, if not by plaintiff, at least in its name, was instituted against defendant in the Chariton county circuit court. An answer was filed by defendant, setting up, first, by way of abatement, that the suit was instituted, without authority of plaintiff, by six parties named in the answer ; they, as alleged, having fraudulently usurped the rights and privileges of the congregation after having been expelled. And, second, a general denial. There was a trial of this action before a jury, and a general verdict rendered \\\"for the defendant.\\\" The usual judgment was entered' on this verdict as follows: \\\" Whereupon it is ordered and adjudged by the court that the defendant go hence without day, and recover of the plaintiff all his costs in and about this suit expended, and have therefor execution.\\\"\\nAt th\\u00a7 succeeding term the following motion to retax costs was filed:\\n' ' German Lutheran Church ' of Brunswick, Missouri, Plaintiff, \\\"F. G. Walther, Defendant.\\nIn the Circuit Court of Chariton County, October Term, 1889.\\n\\\"Now comes said church by its trustees and attorneys and moves the court to retax the costs in said cause, wrongfully taxed against said church, and that costs be taxed against John T. Hartman, Louis Benecke, F. C. Sasse, Eichard Gutzschebauch, Otto Amerlan and Charley Hopf, for the following reasons:\\n'First. The cause was tried at the April term, 1889, of this court, wherein it was determined and adjudged that said church was not legally before said court.\\n\\\"Second. This cause was wrongfully brought by Louis Benecke, John T. Hartman, F. C. Sasse, Eichard Gutzschebauch, Otto Amerlan and Charles Hopf, who, as pretended trustees, brought said suit in the name of said church, without authority or right to do so.\\\"\\nThe parties named therein appeared to this motion, which was, after argument, sustained, and an order entered taking the costs off of the plaintiff and taxing them against the parties named in the motion, who were alleged to have instituted the action without plaintiff's authority. We are of the opinion that the foregoing proceedings cannot be sustained consistently with established modes of procedure. The effect and result of the matter is, that there now stands a judgment in favor of defendant as to the merits of the \\u2022ejectment, and against persons who were not parties to the suit, for the costs. If the parties named wrongfully, and without authority, instituted the action in plaintiff's name, they have committed a wrong, for which they could doubtless be held liable in a legal way, if any loss, injury or damage resulted to anyone. But we are not able to see our way clear in asserting, in the absence of a statute permitting it, that, on a motion to retax costs, persons, not parties to the original action, can have judgment rendered against them for the costs of such action.\\nWe have been cited to the case of Baker v. Raley, 18 Mo. 562, but that case is unlike this. There, there was an independent action brought against the party sought to be charged with the costs. If the plaintiff in the ejectment suit did not institute the action, nor authorize it, it could, in different ways, resist the payment of costs adjudged against it; and it was, perhaps, well enough to relieve such plaintiff on the motion. But that is another matter from affirmatively adjudging them against persons not parties.\\nThe judgment is reversed.\\nAll concur.\"}"
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--- /dev/null
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+"{\"id\": \"9990485\", \"name\": \"Richard L. COX, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant\", \"name_abbreviation\": \"Cox v. Director of Revenue\", \"decision_date\": \"1988-09-06\", \"docket_number\": \"No. 15225\", \"first_page\": \"943\", \"last_page\": \"944\", \"citations\": \"756 S.W.2d 943\", \"volume\": \"756\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T20:20:14.714567+00:00\", \"provenance\": \"CAP\", \"judges\": \"PREWITT, P.J., and FLANIGAN and MAUS, JJ., concur.\", \"parties\": \"Richard L. COX, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.\", \"head_matter\": \"Richard L. COX, Respondent, v. DIRECTOR OF REVENUE, State of Missouri, Appellant.\\nNo. 15225.\\nMissouri Court of Appeals, Southern District, Division Two.\\nSept. 6, 1988.\\nWilliam L. Webster, Atty. Gen., Cynthia B. Green, Asst. Atty. Gen., Jefferson City, for appellant.\\nBen K. Upp, Springfield, for respondent.\", \"word_count\": \"973\", \"char_count\": \"5767\", \"text\": \"HOGAN, Judge.\\nThe Director of Revenue suspended Richard L. Cox's driver's license pursuant to the license suspension procedures set forth in \\u00a7 302.500-302.540, RSMo 1986. Cox requested an administrative hearing as provided by \\u00a7 302.505.2 and the Director's initial suspension was upheld by the hearing officer. Cox thereupon petitioned for trial de novo as permitted by \\u00a7 302.535 and the trial court reversed the order of suspension. The Director appeals. We reverse.\\nAt the trial de novo, the State's evidence was: At approximately 4:58 p.m. on December 5, 1986, a Springfield city police officer was dispatched to the 1600 block of East Turner, in Springfield, in response to a report of an accident involving a motor vehicle. The officer arrived at the scene of the accident at 5:20 p.m. The officer found a pickup truck turned over on its side. He asked who had been driving the truck. Cox said he had been driving. The officer asked Cox if he had been drinking. Cox replied that he had. Cox appeared to be intoxicated; the officer placed him under arrest for driving while intoxicated and had him transported to the city police station where a chemical breath test could be administered. A chemical breath test was administered at 5:55 p.m. Cox's blood alcohol content was .16 percent approximately 1 hour after the officer was dispatched to the scene of the accident. Cox had nothing to drink after the accident.\\nTwo points have been briefed, but the decisive question presented is whether the State proved the driver had a BAC of .13 percent or more by weight at the time he was driving, when the evidence was that he had a BAC of .16 percent by weight 1 hour after he was arrested.\\nOur Supreme Court discussed the elements of proof required of the Director under \\u00a7 302.505 in Collins v. Director of Revenue, 691 S.W.2d 246, 252[11] (Mo.banc 1985). The first requirement is that a driver be arrested upon probable cause that he or she is driving in violation of \\u00a7 577.010 or 577.012. Cox appeared to be intoxicated when the investigating officer arrived at the scene of the accident. He admitted he had been drinking. His breath smelled of intoxicants and his eyes were bloodshot and watery. He was having difficulty maintaining his balance without walking around. The arresting officer had probable cause to arrest Cox in view of Cox's statement that he had been drinking and was the driver of the overturned pickup.\\nThe other element of the Director's case was a showing, by a preponderance of the evidence, that Cox had been driving at a time when his blood alcohol concentration was at least .13 percent. Collins v. Director of Revenue, 691 S.W.2d at 252; Hieger v. Director of Revenue, 733 S.W.2d 491, 492 (Mo.App.1987). Here, we have the following evidence: The arresting officer received the report of the accident at approximately 4:58 p.m. He testified\\u2014without objection\\u2014that he arrived at the scene 22 minutes after the police department received its report of the accident. When the officer arrived at the scene, Cox was grossly intoxicated, and 1 hour after he was arrested, his blood alcohol content was .16 percent by weight. Cox argues nevertheless that the second element was not proved because the precise time the accident occurred was not shown.\\nWe do not agree. A similar argument, upon comparable facts, was presented to our colleagues at St. Louis in the Hieger case. There, the driver was arrested at the scene of the accident upon reasonable cause at 9:20 p.m. An hour and twenty minutes later, the driver's blood alcohol content was .14 percent. The court held the proof was sufficient to establish that the driver had been driving while his blood alcohol concentration was at least .13 percent. We cordially agree. In particular, we concur in the court's statement that:\\n\\\"Neither the State nor its citizen drivers can afford to have a battery of experts at each and every case processed under \\u00a7 302.505, RSMo 1986. . When the legislature provided for the admissibility of BAC, it had to know that there would be some period of time from the determination of probable cause until the test was given. Societal pressures mandate that [the] director not be required by scientific evidence to show that [the] driver had a BAC [of] .13 or more, at the actual moment of collision, when it can be reasonably assumed from the other evidence that his BAC at the time of [the accident] was at least .13 percent or more, and that he was intoxicated while driving.\\\"\\nCox further argues that the suspension was invalid because there is no proof that he was arrested within one and one-half hours after the claimed violation, as prescribed by \\u00a7 577.039. The statute cited has no application to arrests founded on municipal ordinances. Strode v. Director of Revenue, 724 S.W.2d 245, 247 (Mo.banc 1987). Cox was arrested for violation of a municipal ordinance.\\nSection 302.535 provides that the order 'of case before us \\\"be decided by the judge sitting without a jury.\\\" Appellate review is therefore controlled by Murphy v. Carron, 536 S.W.2d 30, 32[l-3] (Mo. banc 1976). Careful review of the slender record has left us with a firm belief that the judgment is wrong. Accordingly, the judgment of the trial court is reversed with directions to reinstate the Director's order. It is so ordered.\\nPREWITT, P.J., and FLANIGAN and MAUS, JJ., concur.\\n. References to statutes and rules are to RSMo 1986 and V.A.M.R., except where otherwise noted.\"}"
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diff --git a/mo/9991417.json b/mo/9991417.json
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+"{\"id\": \"9991417\", \"name\": \"STATE of Missouri, Respondent, v. Larry McWILLIAMS, Movant\", \"name_abbreviation\": \"State v. McWilliams\", \"decision_date\": \"1990-12-26\", \"docket_number\": \"No. 58231\", \"first_page\": \"810\", \"last_page\": \"811\", \"citations\": \"800 S.W.2d 810\", \"volume\": \"800\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T19:46:57.449985+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"STATE of Missouri, Respondent, v. Larry McWILLIAMS, Movant.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Larry McWILLIAMS, Movant.\\nNo. 58231.\\nMissouri Court of Appeals, Eastern District, Division One.\\nDec. 26, 1990.\\nRobert D. Schollmeyer, Asst. Public Defender, Hannibal, for movant.\\nJules V. DeCoster, Lewis County Pros. Atty., Monticello, for respondent.\", \"word_count\": \"154\", \"char_count\": \"967\", \"text\": \"ORDER\\nPER CURIAM.\\nMovant appeals after a jury trial from conviction on charges of property damage, \\u00a7 569.120 RSMo 1986; peace disturbance, \\u00a7 574.010 RSMo 1986; littering \\u00a7 577.070 RSMo 1986; and littering via carcasses; \\u00a7 577.076 RSMo 1986. The sole issue on appeal is sufficiency of evidence to support a judgment of conviction. The only question of fact was whether the state proved defendant was the culprit. A witness testified that he saw defendant commit the charged crimes. Credibility and weight of the evidence are for the jury and the trial court. No error of law appears. An extended opinion would have no precedential value. We affirm in accordance with Rule 30.25(b).\"}"
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diff --git a/mo/9995719.json b/mo/9995719.json
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+"{\"id\": \"9995719\", \"name\": \"Bonnie Kay BROSS, Respondent, v. Larry O. DENNY, Appellant\", \"name_abbreviation\": \"Bross v. Denny\", \"decision_date\": \"1990-03-27\", \"docket_number\": \"No. WD 41602\", \"first_page\": \"416\", \"last_page\": \"424\", \"citations\": \"791 S.W.2d 416\", \"volume\": \"791\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-10T17:59:05.761035+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BERREY, J., Presiding, and TURNAGE and ULRICH, JJ.\", \"parties\": \"Bonnie Kay BROSS, Respondent, v. Larry O. DENNY, Appellant.\", \"head_matter\": \"Bonnie Kay BROSS, Respondent, v. Larry O. DENNY, Appellant.\\nNo. WD 41602.\\nMissouri Court of Appeals, Western District.\\nMarch 27, 1990.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied May 29, 1990.\\nApplication to Transfer Denied July 31, 1990.\\nDavid R. Buchanan, Michael A. Childs, Brown, James & Rabbitt, P.C., Kansas City, for appellant Larry 0. Denny.\\nArthur A. Benson II, Veronica Jongene-len, Kansas City, for respondent Bonnie Kay Bross.\\nBefore BERREY, J., Presiding, and TURNAGE and ULRICH, JJ.\", \"word_count\": \"3835\", \"char_count\": \"23359\", \"text\": \"ULRICH, Judge.\\nLarry 0. Denny, an attorney, appeals the verdict and judgment against him and in favor of Bonnie Kay Bross in a legal malpractice action. Ms. Bross cross-appeals.\\nBonnie and Tom Bross were married in October of 1960. The two lived together until their separation in October of 1975, and two children were born of the marriage. Shortly after their marriage Tom Bross joined the United States military service and during most of their marriage Mr. Bross served in the military. He was stationed in England when they separated, and Ms. Bross returned to the United States after the separation.\\nMs. Bross first consulted Larry Denny about a divorce in July of 1981. On October 28, 1981, Mr. Denny, representing Ms. Bross, filed a petition for dissolution of the marriage.\\nIn early 1982, Ms. Bross wrote to Mr. Denny expressing a desire to obtain part of her husband's military pension. Mr. Denny correctly informed his client that existing law prohibited state courts from treating U.S. military pensions as marital property, and he did not think nonexisting spousal rights to a military pension that might later be created by a change in the law could be preserved.\\nThe dissolution hearing occurred January 24, 1983. The day of the hearing Ms. Bross asked Mr. Denny why the settlement agreement did not provide that if the applicable law changed, she would receive a share of Mr. Bross's pension. Mr. Denny replied that the law had not changed and she had to accept the status of the law. Before the hearing Ms. Bross signed the separation agreement accepting a lump sum payment of $5,000 and $300 per month child support to. convert upon emancipation of the dependent child to maintenance up to June 1986. The Bross dissolution became final on March 4, 1983.\\nThe history of the law regarding the inclusion of a spouse's federal military retirement benefits as marital property in a state marital dissolution proceeding is significant. Mr. Denny's advice to Ms. Bross reflected the rule in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). In McCarty the Supreme Court held that federal law precluded state courts from dividing military pensions pursuant to state laws in divorce proceedings. Congress reacted by passing, on September 8, 1982, the Uniformed Services Former Spouses' Protection Act (USFSPA). 10 U.S.C.A. \\u00a7 1408 (1983). The USFSPA provided that military pensions could be characterized and divided according to state marital dissolution law. The USFSPA's ef fective date was February 1, 1983. See generally, Starrett v. Starrett, 703 S.W.2d 544, 547 n. 5 (Mo.App.1985).\\nMr. Denny's initial counsel to Ms. Bross that her husband's military pension was not divisible by state law under McCarty, in effect at that time, was correct when given. However, before the signing of the separation agreement and the dissolution hearing on January 24, 1983, the USFSPA was passed. It became effective February 1, 1983, only days after the dissolution hearing and before final judgment was entered on March 4, 1983.\\nMs. Bross filed suit against Mr. Denny in October of 1986, alleging malpractice. Trial commenced December 5, 1988, and the jury verdict was rendered in favor of Ms. Bross, assessing 75 percent of the fault against Mr. Denny and 25 percent of the fault against her. Damages totalling $108,000 were awarded, and judgment was entered against Mr. Denny for $81,000. Both parties appeal.\\nMr. Denny alleges three points of error. He contends that the trial court erred (1) in failing to dismiss Ms. Bross's petition for failure to state a cause of action, and (2) in allowing Ms. Bross's attorney to refer to the code of professional responsibility for attorneys during the trial. He also alleges that (3) Ms. Bross failed to prove that she would have recovered a portion of her ex-spouse's military retirement benefits except for Mr. Denny's negligence, and, therefore, the trial court was in error for failing to sustain his motion for a directed verdict at the close of plaintiff's evidence.\\nMs. Bross also alleges three points of error in her cross appeal. She claims that the trial court erred (1) in not instructing the jury on punitive damages, (2) in instructing the jury that it could assess fault to Ms. Bross, and finally, by permitting, over her objection, (3) defense counsel to violate the court's order in limine by stating in closing argument that other recovery means were available to her.\\nMr. Denny's first point contends that the trial court erred by failing to sustain his motion and dismiss the Bross petition for failure to state a cause of action. He argues that before filing this suit for legal malpractice Ms. Bross should first have filed either a suit in equity or a motion to reopen her original divorce case pursuant to Rule 74.06(b)(5). This point raises issues important to the case; however, these issues do not relate to whether a cause of action was stated, and the trial court was correct in denying Mr. Denny's motion to dismiss. The argument that Ms. Bross failed to exhaust her remedies pertains to damages, not whether a cause of action is stated. Mr. Denny does not deny that he failed to be aware of new controlling legislation and protect his client's interest accordingly. Ms. Bross's remedy is an action for malpractice.\\nThe application of Mr. Denny's argument to the issue of damages is considered. He proposes that suit in equity is a remedy available to Ms. Bross. A suit in equity is not available to reopen and review a dissolution decree because that decree is final and conclusive as to the property which it divides. State ex rel. McClintock v. Black, 608 S.W.2d 405, 407 (Mo. banc 1980). A suit in equity is a separate suit \\u2014 a collateral procedure \\u2014 used to adjudicate the disposition of assets omitted in a dissolution decree. Id. The Missouri Supreme Court has held, \\\"[t]o the extent that property is not divided by the decree of dissolution, the only remedy after the judgment becomes final is a separate suit in equity.\\\" Chrun v. Chrun, 751 S.W.2d 752, 755 (Mo. banc 1988).\\nSuit in equity is not available to allocate a share in Tom Bross's military pension to Ms. Bross. The separation agreement, incorporated into the dissolution decree, specifically awarded the entire military pension to Tom Bross. The pension was not an omitted asset, therefore, a suit in equity is not an available remedy.\\nMr. Denny also proposes a Rule 74.-06(b)(5) motion to reopen as an available remedy. Rule 74.06(c) provides time limits on motions to modify, allowing motions alleging mistake, fraud or irregularity in a judgment to be brought within one year from the judgment entry. A motion under Rule 74.06(b)(5) must be brought \\\"within a reasonable time,\\\" and one year after entry of a decree may be the limit. See Chrun, 751 S.W.2d at 755, n. 1. Judgment in the Brosses' dissolution was final March 4, 1983. Rule 74.06(b)(5), inclusive of the \\\"reasonable time\\\" limitation for filing a motion to reopen, was not effective until January 1, 1988 \\u2014 almost 5 years after final judgment in the Bross case. Ms. Bross does not have an available remedy under Rule 74.06(b)(5).\\nMr. Denny raises two additional related allegations of error under his first point. He contends that the trial court erred in refusing to allow him to present expert testimony that Ms. Bross had available an independent suit in equity or a motion to modify the original dissolution decree as a means of obtaining part of Mr. Bross's military pension. A trial court has considerable discretion in the exclusion of evidence, and only an abuse of that discretion will constitute grounds for reversal. Karashin v. Haggard Hauling & Rigging, Inc., 653 S.W.2d 203, 205 (Mo. banc 1983). The trial court's preclusive order limiting the expert testimony was based on a correct interpretation of the law as previously discussed, and it was, therefore, not an abuse of discretion.\\nIn a related point, Mr. Denny asserts that an affirmative converse instruction should have been given by the court instructing the jury to find against Ms. Bross if it believed she still had a right to obtain part of Tom Bross's military pension. The preceding discussion demonstrates such an instruction erroneous. Additionally, Mr. Denny's failure to include the proffered instruction in his brief, as mandated by Rule 84.04(e), dictates that possible errors associated with the instruction are not preserved for review. Stevenson v. First National Bank of Callaway County, 604 S.W.2d 791, 794 (Mo.App.1980).\\nMr. Denny asserts, as his second alleged point of error, that Ms. Bross's attorney's permitted reference to the attorneys' Code of Professional Responsibility was erroneous. Ms. Bross's attorney referred to the Code twice during the trial. Mr. Denny argues that such references injected irrelevant, immaterial and inflammatory matters and correctly cites Greening v. Klamen, 652 S.W.2d 730, 734 (Mo.App.1983), for the principle that introduction of the disciplinary rules in legal malpractice cases as evidence of the standard of care is prohibited. In this case, however, the Code of Professional Responsibility was not introduced as evidence of the standard of care but was merely mentioned by Ms. Bross's attorney. The two brief references by Ms. Bross's attorney to the Code of Professional Responsibility were not so inflammatory or prejudicial as to have affected the trial of the case. This court defers to the sound exercise of the trial court's discretion. Kennedy v. Tallent, 492 S.W.2d 33, 38 (Mo.App.1973).\\nMr. Denny alleges as the third point that Ms. Bross failed to prove she would have received a portion of Mr. Bross's retirement benefits except for Mr. Denny's negligent failure to prosecute her claim. Therefore, he contends, the trial court's refusal to sustain his motion for a directed verdict at the close of Ms. Bross's case was error. A legal malpractice claim requires that the plaintiff plead and prove that the underlying claim would have been successful except for the negligence of the attorney defendant, thereby proving damages and causation. See Lange v. Marshall, 622 S.W.2d 237 (Mo.App.1981); Brown v. Adams, 715 S.W.2d 940 (Mo.App.1986). He claims Ms. Bross failed to introduce evidence that the court deciding her dissolution petition would have awarded her a part of the military pension in accordance with applicable Missouri law and, thus, failed to prove damages and a causal relationship between her damages and his alleged negligence.\\nExpert witnesses testified in Ms. Bross's behalf. Allen Russell, a licensed attorney, testified as an expert in Missouri dissolution law that the USFSPA gave Ms. Bross a claim to Mr. Bross's pension as marital property and entitled her to an appropriate division of the pension benefits. He testified that the pension represented ninety percent of the marital assets and that she was entitled to at least fifty percent of the pension benefits. He stated that Mr. Denny should have known or learned of Ms. Bross's entitlement to the pension benefits, especially when she expressed her desire for her share. Dr. John Ward testified as an expert economist. He testified that the lost pension funds to be experienced by Ms. Bross totaled $125,832. Ms. Bross proved damages and the causal relationship between Mr. Denny's negligence and the damages.\\nMr. Denny contends that Mr. Russell's testimony about the division of the pension and the amount to which Ms. Bross was entitled was improperly admitted over his objection. Expert testimony is required in legal malpractice claims except in a \\\"clear and palpable\\\" case. Zweifel v. Zenge & Smith, 778 S.W.2d 372, 373 (Mo.App.1989). The admissibility of expert testimony is left to trial court's discretion and will be disturbed on appeal only upon a showing of abuse of discretion. State v. Marks, 721 S.W.2d 51, 55 (Mo.App.1986). Mr. Russell testified about matters with which the jurors were not likely to be conversant, his testimony was helpful to them in determining issues before them, and his testimony was admissible as an exception to the general rule that witnesses may not express their opinions. McKinley v. Vize, 563 S.W.2d 505, 508 (Mo.App.1978). Allowance of Mr. Russell's testimony was not an abuse of discretion and provided evidence relevant to the damages sustained by Ms. Bross and the causal effect of Mr. Denny's negligence.\\nMr. Denny also argues that Instruction No. 4 erroneously instructed the jury. Although Mr. Denny failed to pro vide the contested instruction in violation of Rule 84.04(e), the allegation is considered ex gratia. The instruction included the elements of causation and damages. When a Missouri Approved Instruction is applicable, the instruction must be given at the exclusion of all others. Karashin, 653 S.W.2d at 206. The trial court was required to use the applicable MAI. Mr. Denny has failed to satisfy the burden of proving that MAI 21.01 misstates the law. See Lindsay v. McMilian, 649 S.W.2d 491, 494 (Mo.App.1983); Turley Martin Co. v. American Can Co., 661 S.W.2d 79, 81 (Mo.App.1983).\\nMs. Bross's points on cross appeal are now addressed. She contends as her first point that the trial court erred in refusing to instruct the jury on the issue of punitive damages. The evidence, viewed in the light most favorable for submitting the requested punitive damage instruction, does not support giving it. Hopkins v. Goose Creek Land Co., Inc., 673 S.W.2d 465, 467 (Mo.App.1984). An instruction for punitive damages is properly given where wantonness or bad motive is evinced. Vecchiotti v. Tegethoff, 745 S.W.2d 741, 744 (Mo.App.1987). Punitive damages are not a matter of right, and their award lies within the trial court's discretion. Id. The punitive damage instruction asserted by Ms. Bross requires a finding of \\\"conscious disregard\\\" of other persons by Mr. Denny. MAI 10.02. Weighing the evidence at trial against the requirements for awarding punitive damages shows the trial court's refusal to instruct on punitive damages to be proper. Ms. Bross adduced evidence showing Mr. Denny's lack of diligence in handling her divorce. She presented testimony about an attorney's duty to research resources available to keep himself informed of changes and developments in the applicable law. However, Ms. Bross failed to rebut evidence that throughout the divorce Mr. Denny attempted to procure the best settlement he could obtain for her. Highly probative of whether Mr. Denny consciously disregarded his client's rights is the absence of evidence that Mr. Denny intentionally disregarded Ms. Bross's interest. An instruction on punitive damages would have been erroneous.\\nAs her second point, Ms. Bross claims the trial court erred in instructing the jury that it could assess fault to her. She contends that all the evidence identifies Mr. Denny as the sole and proximate cause of her damages. Essentially, Ms. Bross argues that comparative negligence has no application in this case. \\\"Comparative negligence has no application where the negligence of one party is the sole proximate cause of an accident and the other party is not guilty of negligence.\\\" Cowan v. Perryman, 740 S.W.2d 303, 304 (Mo.App.1987) (citing Finninger v. Johnson, 692 S.W.2d 390, 393 (Mo.App.1985)). The challenged instructions are numbers 6 and 7; they read:\\nINSTRUCTION NO. SIX\\nIn your verdict you must assess a percentage of fault to Plaintiff, whether or not Defendant was partly at fault, if you believe:\\nFirst, plaintiff failed or refused to follow Defendant's recommendations to hold out for more money or to go to trial to attempt to obtain more, and Second, Plaintiff was thereby negligent, and\\nThird, such negligence directly caused or directly contributed to cause any damage Plaintiff may have sustained.\\nThe term, \\\"negligence\\\" as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances.\\nINSTRUCTION NO. SEVEN\\nIn your verdict you must not assess a percentage of fault to plaintiff, unless you believe:\\nFirst, plaintiff was negligent, and\\nSecond, such negligence directly caused or directly contributed to cause any damage plaintiff may have sustained.\\nSubstantial evidence must have existed for these instructions to have been given. That determination is made by this court considering the evidence and inferences most favorable to Mr. Denny and disregarding all contrary evidence. Cowan, 740 S.W.2d at 304.\\nMr. Denny testified that he repeatedly encouraged Ms. Bross to demand a larger cash settlement or increased maintenance and child support payments. Ms. Bross refused to do so in order to avoid \\\"hurting\\\" her husband and conflicting with her \\\"moral beliefs.\\\" Mr. Denny asserts that because the evidence demonstrates Ms. Bross's reluctance to seek the most advantageous financial benefits possible, no substantial evidence existed to support her claim that she would have sought a portion of Mr. Bross's retirement benefits had she known the law had changed giving her an interest in the pension. The inquiries made of Mr. Denny by Ms. Bross before the dissolution about her entitlement to the retirement benefits negates Mr. Denny's contention. Mr. Denny's testimony does not establish a defense as a matter of law, and Mr. Bross is not required to prove as an element of her cause that she would have pursued her right to obtain a portion of the retirement benefits had she known that she could.\\nAdditionally, whether Ms. Bross did not want Mr. Denny to more aggressively seek a larger lump sum settlement and child support payments is not relevant to the issue of Mr. Denny's misadvice about her entitlement to a portion of her ex-spouse's military retirement benefits. Even had a greater sum as settlement for her marital property interests and additional child support been obtained either at trial or by agreement, her entitlement to a portion of her ex-spouse's military retirement benefits was compromised by her attorney's advice without it being considered as an issue. There is no substantial evidence that Ms. Bross was negligent. Mr. Denny's negligence was the sole and proximate cause of Ms. Bross's damages. Thus, instructions six and seven were erroneously submitted.\\nMs. Bross's third and final point asserts that the trial court erred in overruling her objection to a comment made by Mr. Denny's attorney, Mr. Buchanan, in his closing argument. Ms. Bross asserts that this comment violated the court's order in limine against mentioning other options for recovery. Two relevant portions of argument follow:\\nCLOSING ARGUMENT OP MR. BENSON:\\nMR. BENSON: Ladies and gentlemen of the jury, we are now at the end of a two and a half, three days of the trial for Bonnie Bross. It's her only chance here in court to have her claim heard and you're the only people who get to decide the facts in this case.\\nCLOSING ARGUMENT OF MR. BUCHANAN:\\nMR. BUCHANAN: Ladies and gentlemen of the jury, this is the last chance I have to speak with you. I heard Mr. Benson say that this is Bonnie Bross's last chance. That's not quite true. It is Larry Denny's last chance. If you find any fault against him, that's his last chance. Bonnie Bross has done nothing the [sic] get her pension accept [sic] sue.\\nIt is the latter argument by Mr. Buchanan that is contested by Ms. Bross. Mr. Buchanan's statements were made in response to those made by Mr. Benson, Ms. Bross's attorney. The extent of reply to an adversary's argument is largely within the trial court's discretion. McCandless v. Manzella, 369 S.W.2d 188, 191 (Mo.1963). If Mr. Buchanan's argument violated the order in limine, it was innocuous. The court acted within its discretion and committed no error in overruling Ms. Bross's objection.\\nThat portion of the judgment attributing twenty-five percent of the fault against Ms. Bross is reversed, and she is awarded the full amount of the damages assessed by the jury, $108,000. In all other respects, the judgment is affirmed.\\nAll concur.\\n. Mr. Denny's brief states at page 16, \\\"There is no question that Mr. Denny in this case mistakenly treated Mr. Bross's military pension as separate property because he was not aware the USFSPA had overturned the McCarty decision until it was too late.\\\"\\n. Mr. Denny argues in his brief, \\\"If Mrs. Bross had not exhausted her remedies, then as a matter of law, her cause was premature and she was in no position to prove any damage was caused by any alleged negligence of Mr. Denny.\\\" He then cites Eddleman v. Dowd, 648 S.W.2d 632 (Mo.App.1983). Eddleman holds that a plaintiff cannot prove damages for an attorney's alleged negligence where the underlying lawsuit was still pending. Ms. Bross's underlying suit was not then still pending but was finally adjudicated.\\n. Rule 74.06(b)(5) wasn't enacted until fourteen months after Ms. Bross filed suit for malpractice.\\n. On direct examination, Ms. Bross's attorney, Mr. Benson, inquired of the expert witness:\\nQ. Mr. Russell, are you familiar with the codes [sic] of professional responsibility that governs\\u2014\\nMR. CHILDS: Objection, Your Honor.\\n(At this point in the proceedings, there was a discussion between Court and counsel at the bench and out of the hearing of the jury. The objection was overruled.)\\nMR. BENSON:\\nQ. Mr. Russell, are you familiar with the codes [sic] of professional responsibility that was in effect in Missouri in early 1983?\\nA. Yeah.\\nQ. And are you familiar with those sections of the [sic] Cannon [sic] Six of the codes [sic] of professional responsibility which determines a lawyer's responsibility to his clients?\\nA. I believe so.\\nQ. And, did you consider those in determining what your opinion would be if you were retained to represent on behalf of Mrs. Bross?\\nA. Yes, I do.\\nDuring the cross-examination of Mr. Denny, Mr. Benson asked:\\nQ. And you're governed by the codes that govern lawyers in their practice of law?\\nA. Yes, I am.\\nMR. BUCHANAN: Before you start, approach.\\n(At this point in the proceedings, there was a discussion between Court and counsel at the bench and out of the hearing of the jury. The court directed Mr. Benson not to mention the code.)\\n. Instruction No. 4 (MAI 21.01) states:\\nIn your verdict you must assess a percentage of fault to defendant if you believe:\\nFirst, defendant failed to advise plaintiff that she was entitled to receive a portion of the military pension of her husband at the time of their dissolution of marriage and\\nSecond, defendant was thereby negligent, and Third, as a direct result of such negligence plaintiff sustained damage.\\nThe term \\\"negligent\\\" or \\\"negligence\\\" as used in this instruction means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by the members of defendant's profession.\"}"
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+"{\"id\": \"9997580\", \"name\": \"J.E. HALLMARK, Plaintiff-Respondent, v. A.L. HAENNI, Eliane Haenni, First Bank f/k/a Heritage National Bank, Defendants-Appellants\", \"name_abbreviation\": \"Hallmark v. Haenni\", \"decision_date\": \"1995-05-23\", \"docket_number\": \"Nos. 67234, 67478\", \"first_page\": \"31\", \"last_page\": \"34\", \"citations\": \"904 S.W.2d 31\", \"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\": \"AHRENS, P.J., and SIMON, J., concur.\", \"parties\": \"J.E. HALLMARK, Plaintiff-Respondent, v. A.L. HAENNI, Eliane Haenni, First Bank f/k/a Heritage National Bank, Defendants-Appellants.\", \"head_matter\": \"J.E. HALLMARK, Plaintiff-Respondent, v. A.L. HAENNI, Eliane Haenni, First Bank f/k/a Heritage National Bank, Defendants-Appellants.\\nNos. 67234, 67478.\\nMissouri Court of Appeals, Eastern District, Division Four.\\nMay 23, 1995.\\nMotion for Rehearing and/or Transfer to Supreme Court Denied June 26, 1995.\\nApplication to Transfer Denied Sept. 19, 1995.\\nPatrick J. Boyle, Gunn and Gunn, St. Louis, for appellants.\\nWilliam Fortenbury, St. Louis, for respondent.\", \"word_count\": \"1452\", \"char_count\": \"9161\", \"text\": \"KAROHL, Judge.\\nGarnishee, First Bank, f/k/a Heritage National Bank, appeals from a summary judgment in favor of garnishor, J.E. Hallmark, in two consolidated garnishment proceedings. The dispute was whether First Bank held bank accounts belonging to the judgment debtor, an individual, or partnership in which debtor was a partner. The trial court found no genuine issue of material fact existed regarding the ownership of the bank accounts by judgment debtor, A.L. Haenni. First Bank appeals. We reverse and remand.\\nOn November 2,1993, Hallmark obtained a judgment against A.L. Haenni and Eliane Haenni, jointly and severally, for $36,500. Hallmark filed two individual garnishments naming First Bank as garnishee. Each garnishment included instructions for a levy against the accounts of A.L. Haenni, d/b/a \\\"Pond Inn\\\" and A.L. Haenni and Eliane Haenni, d/b/a \\\"Haenni Antique Imports\\\".\\nFirst Bank answered interrogatories indicating it did not have in its possession or under its control any property, money, or effects of A.L. Haenni and Eliane Haenni. It acknowledged accounts of partnerships in which the Haennis were partners. Hallmark filed Exceptions to Interrogatory Answers of Garnishee in both garnishments. Hallmark alleged that A.L. Haenni was the sole owner of Pond Inn which he operated under that fictitious name. If true, the Pond Inn account was Haenni's individually, not property of a partnership. First Bank filed a response stating the Pond Inn account and Haenni Antique Imports account were both owned by partnerships. These partnerships consisted of four partners, A.L. and Elaine Haenni and Suzanne and Warren Dixon.\\nOn August 8, 1994, Hallmark filed a Motion for Summary Judgment in the garnishments which were consolidated on July 26, 1994. In support of his motion, Hallmark included copies of:\\n(1) the Registration of a Fictitious name for Pond Inn identifying A.L. Haenni as sole owner;\\n(2) individual Partnership Resolutions of Authority Pond Inn and Haenni Antique Imports indicating separate federal tax identification numbers for each business and listing as partners for each business A.L. and Eliane Haenni and Suzanne and Warren Dixon; and\\n(3) U.C.C. Security Filing instruments for a car, tools, and restaurant appliances which were from A.L. Haenni, individual d/b/a Pond Inn.\\nIn response to the Motion for Summary Judgment, counsel for First Bank as \\\"attorney and agent for Defendant First Bank,\\\" filed an affidavit with attached exhibits as follows:\\n(1) same individual Partnership Resolutions of Authority documents relating to partnership bank accounts as filed by Hallmark;\\n(2) a certified copy of a Voluntary Petition for a Chapter 11 Bankruptcy which indicates that Pond Inn and Haenni Antique Imports are general partnerships; and\\n(3) a copy of a Partnership Agreement for Pond Inn and Haenni Antique Imports listing as partners AL. and Eliane Haenni and Suzanne and Warren Dixon.\\nOn September 14, 1994, the trial court granted Hallmark's Motion for Summary Judgment. It ordered First Bank to pay $21,011.82 into the registry of the court. Thereafter, the court awarded Hallmark's attorneys fees. On September 26, 1994, Hallmark filed a Motion to Correct or Amend Judgment. On October 7, 1994, First Bank filed a Motion for Rehearing and Reconsideration.\\nOn October 12, 1994, the court heard both pending motions, vacated its previous order of September 14, 1994, and again granted summary judgment in favor of Hallmark. The trial court ordered First Bank to pay $41,360.48 into the registry of the court. Hallmark's attorneys fees of $2380 were ordered against First Bank.\\nOn November 1, 1994, Hallmark filed a Motion for Entry of Judgment against First Bank, presumably because First Bank failed to comply with the October 12, 1994 court order. On November 16, 1994, the court granted judgment in favor of Hallmark and against First Bank in the amount of $43,-740.48. First Bank appeals.\\nWhen considering appeals from summary judgment, we review the record in the light most favorable to the party against whom judgment is entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993). If a genuine issue of fact exists, summary judgment cannot be granted. A genuine issue of fact exists when there is the slightest doubt about the facts. The fact in doubt, however, must be a material one which has legal probative force as to a controlling issue. Id.\\nAs the sole issue on appeal, First Bank argues that the summary judgment facts, in evidentiary form, preserved a genuine issue of fact as to who owned the bank accounts which Hallmark sought. First Bank responded to Hallmark's motion for summary judgment by filing its counsel-agents' affidavit and supporting documentation. The documentation consisted of: (1) Partnership Resolutions of Authority for Pond Inn and Haenni Antiques indicating the federal tax identification numbers and listing as partners for the business accounts AL. and Eliane Haenni and Suzanne and Warren Dixon; (2) a Voluntary Petition for Bankruptcy indicating Pond Inn and Haenni Antiques as a partnership; and (3) a Partnership Agreement for Pond Inn and Haenni Antiques listing as partners the Haennis and Dixons. The information in these documents, if believed, would support a finding the bank accounts were owned by partnership.\\nHallmark argues summary judgment was properly granted for several reasons: (1) First Bank's response to the Motion for Summary Judgment failed to technically comply with the new version of Rule 74.04(c)(2), effective January 1, 1994; (2) First Bank failed to provide competent evidence of the existence of a partnership as required by Rule 74.04(e); and (3) the funds in the Pond Inn account at First Bank were attachable regardless of whether they were individual or partnership accounts. We find no merit to these arguments.\\nFirst, First Bank's Answer to Hallmark's Interrogatories complied in substance with the formal requirements of Rule 74.04(c)(2). Rule 74.04(c)(2) as amended in 1993, effective January 1, 1994, in relevant part states: \\\"The response shall admit or deny each of movant's factual statements in numbered paragraphs that correspond to movant's numbered paragraphs-\\\" First Bank's response did not answer the specific allegations in Hallmark's motion. It did not use specific numbered paragraphs. However, First Bank informed Hallmark that at the time of service of gamishment(s) it had no property of judgment debtors \\\"subject to garnishment or execution.\\\" There was only one fact issue relevant to this response. Further, there is nothing in the legal file to support the argument that Hallmark claimed a right to summary judgment by \\\"default\\\" on formalities. We therefore conclude the trial court heard and granted summary judgment only on the merits.\\nSecond, First Bank's affidavit in opposition to the Motion for Summary Judgment is in proper evidentiary form. First Bank's attorney filed his affidavit as agent and attorney with supporting documents in response to Hallmark's motion. As a lawyer, the affiant is an expert who may offer opinions based on his first hand knowledge regarding legal documents which he identified as an agent. The documents may be admissible at trial as business records. Some of the exhibits which alluded to existing partnerships were also offered by Hallmark. The fact issue of who owned the account remained in dispute and subject to a jury decision.\\nFinally, the existence of a partnership is decisive in determining whether the funds in the accounts were attachable by Hallmark. Hallmark argues that a judgment creditor in Missouri has the right to reach funds by garnishment even if they are deposited in a bank account in the name of someone other than the judgment debtor, if in truth and in fact they belong to him. Hallmark supports this argument citing Vaughn v. Spitz, 682 S.W.2d 847, 848 (Mo.App.1984); Hilke v. Bank of Washington, 251 S.W.2d 963, 966 (Mo.App.1952); Baden Bank of St. Louis v. Trapp, 180 S.W.2d 755, 759 (Mo.App.1944). These cases do not constitute authority that a judgment creditor of an individual who is a partner can directly garnish a partnership bank account.\\nNeither Trapp nor Vaughn are dispositive since they fail to address the issue of the existence of a partnership. In Hilke, the court did consider the argument Hallmark is asserting. However, it held that if the funds were in fact partnership funds, they were not subject to garnishment for the individual debts of one of the partners. Section 358.250 RSMo 1986. Thus, the existence of a partnership impacts whether the funds are attachable.\\nWe reverse and remand.\\nAHRENS, P.J., and SIMON, J., concur.\"}"
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+"{\"id\": \"9997748\", \"name\": \"STATE of Missouri, Respondent, v. Reginald PAIGE, Appellant; Reginald PAIGE, Appellant, v. STATE of Missouri, Respondent\", \"name_abbreviation\": \"State v. Paige\", \"decision_date\": \"1994-10-25\", \"docket_number\": \"Nos. WD 47323, WD 48823\", \"first_page\": \"59\", \"last_page\": \"60\", \"citations\": \"885 S.W.2d 59\", \"volume\": \"885\", \"reporter\": \"South Western Reporter Second Series\", \"court\": \"Missouri Court of Appeals\", \"jurisdiction\": \"Missouri\", \"last_updated\": \"2021-08-11T01:10:15.733786+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KENNEDY, P.J., and BRECKENRIDGE and SPINDEN, JJ.\", \"parties\": \"STATE of Missouri, Respondent, v. Reginald PAIGE, Appellant. Reginald PAIGE, Appellant, v. STATE of Missouri, Respondent.\", \"head_matter\": \"STATE of Missouri, Respondent, v. Reginald PAIGE, Appellant. Reginald PAIGE, Appellant, v. STATE of Missouri, Respondent.\\nNos. WD 47323, WD 48823.\\nMissouri Court of Appeals, Western District.\\nOct. 25, 1994.\\nRosalynn Koch, Office of the State Public Defender, Columbia, for appellant.\\nJeremiah W. (Jay) Nixon, Atty. Gen., John R. Watson, Asst. Atty. Gen., Jefferson City, for respondent.\\nBefore KENNEDY, P.J., and BRECKENRIDGE and SPINDEN, JJ.\", \"word_count\": \"133\", \"char_count\": \"837\", \"text\": \"ORDER\\nPER CURIAM.\\nAppeal after jury trial of convictions of one count of first degree assault, \\u00a7 565.050, RSMo 1986, and one count of armed criminal action, \\u00a7 571.015, RSMo 1986, and sentencing as a Class X offender to 25 years on each count, to be served concurrently. Appellant also appeals the denial of his Rule 29.15 motion.\\nJudgment and convictions affirmed.\\nRules 84.16(b) and 30.25(b).\"}"
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