author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Eugene Lovereture CAMPER, Appellant.
    No. 50990.
    Supreme Court of Missouri, Division No. 2.
    June 14, 1965.
    Motion for Rehearing or for Transfer to Court En Bane Denied July 12, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Ronald R. McKenzie, Sp. Asst. Atty. Gen., Hannibal, for respondent.
    Robert G. Duncan, Simon & Pierce, Kansas City, for appellant.
   STOCKARD, Commissioner.

Defendant has appealed from the judgment entered pursuant to jury verdict wherein he was found guilty of robbery in the first degree and sentenced to imprisonment for a term of five years. He does not challenge the sufficiency of the evidence. Therefore, the statement of facts may be in summary form.

On October 7, 1963, a man wearing a Hallowe’en mask entered the fur shop of Henri Tron, and after threatening Tron and an employee with a gun he tied them up. Two other men then entered the shop and a total of twenty-six fur pieces were taken. Neither Tron nor the employee was able to identify any of the robbers. Cheryl Fan-ner worked nearby, and at the time of the robbery she saw three colored men near the fur shop with their arms loaded with furs, and at the trial she identified defendant as one of those men. She saw them place the furs in an automobile and drive away. Two days later Miss Fanner identified a photograph at police headquarters as being a picture of defendant.

On this appeal defendant presents two assignments of error, both pertaining to the admission of evidence. The first contention is that the trial court erred in denying defendant’s request for a mistrial “because of Witness Fanner’s prejudicial testimony regarding seeing [defendant’s] picture at the police department said testimony being prejudicial and irrelevant.” After Miss Fanner testified that she saw the defendant and two other men carry the furs and place them in an automobile the following occurred :

“Q. Now, after this particular night did you go to the police department?
“A. Yes, I did.
“Q. And when was that?
“A. Two days after.
“Q. What did you do when you were down there at that time?
“A. I looked through the pictures that they had down there.
“Q. Did you recognize anyone in the pictures ?
“A. Yes, I recognized the man Sitting here now.”

Out of the presence of the jury the defendant then requested a mistrial “on the basis that it is irrelevant and immaterial and it is rehabilitating the identity before the case is established, and it is also prejudicial, and it informs the jury that this man has been arrested before, * * The trial court denied the request for a mistrial, but offered to instruct the jury to disregard the question and the answer of the witness that she saw defendant’s picture at the police department. However, counsel for defendant expressly refused the offer, and stated, “I will stand on my motion for a mistrial.”

We shall assume for the purpose of this opinion, but expressly do not so rule, that the testimony of Miss Fanner that she recognized a picture at police headquarters as being a photograph of defendant was improper. However, every error which might occur in the trial of a case does not necessarily require the granting of a mistrial. In view of the offer of the trial court to instruct the jury to disregard the answer of Miss Fanner, the issue before us is exactly the same as if the trial court had ordered the answer stricken and had instructed the jury to disregard it, but had refused to declare a mistrial.

The declaration of a mistrial is a drastic remedy, and the power of a trial court in this respect “should be exercised only in extraordinary circumstances,” State v. James, Mo., 347 S.W.2d 211, or stated another way, a mistrial should he granted only when the incident is so grievous that the prejudicial effect can be removed no other way. For this reason the declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who has observed the incident giving rise to the request for a mistrial, and who is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial. The proper function of an appellate court in the situation we have before us is to determine whether as a matter of law the trial court abused its discretion in refusing to declare a mistrial, and in offering to strike the answer and instruct the jury to disregard it.

The substance of defendant’s complaint is that the answer of Miss Fan-ner that she recognized a photograph at police headquarters as being a picture of defendant was immaterial and that it in effect told the jury that defendant had previously been arrested because otherwise his photograph would not have been there. It is recognized that in some situations an error in admitting improper evidence may be such that the prejudicial effect cannot be re-' moved by striking the testimony and instructing the jury to disregard it. State v. Benson, 346 Mo. 497, 142 S.W.2d 52; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878. However, in other situations the prejudicial effect can be removed in that manner. See State v. Henggeler, 312 Mo. 15, 278 S.W. 743; State v. Holmes, 316 Mo. 122, 289 S.W. 904; State v. Thomas, 318 Mo. 843, 1 S.W.2d 157; State v. Nasello, 325 Mo. 442, 30 S.W.2d 132; State v. Walker, Mo., 46 S.W.2d 569. In this case, the question asked called for a yes or no answer, and anything beyond that was voluntary on the part of the witness. The objection that the answer was “irrelevant and immaterial” and that “it is rehabilitating the identity” of defendant by the witness pertained to matters which, if meritorious, could be corrected by the action proposed by the trial court. Certainly, they were of the nature that the trial court could exercise its discretion as to the corrective action required. It could be only because the jury drew an inference from the answer of Miss Fanner that it would have reason to believe that the defendant had previously been arrested. Notwithstanding the ruling in State v. Baldwin, 317 Mo. 759, 297 S.W. 10, we doubt that the answer made could be the basis for contending prejudicial error, but as previously stated we do not so rule and we are assuming for the purposes of this opinion that the volunteered portion of the answer was erroneous. However, under the circumstances of this case, for the action of the court to constitute prejudicial error the answer of Miss Fanner had to be of the nature that it was so impressive to the jury that the prejudicial effect could not have been removed by striking the answer and instructing the jury to disregard it. State v. Fulkerson, Mo., 331 S.W.2d 565. We cannot reach that conclusion. In fact, we consider the incident to be relatively minor in nature, and one which the trial court properly exercised its discretion in refusing a mistrial.

The second contention of defendant is that the trial court-erred in admitting into evidence the “testimony by Officer Etzen-houser regarding the actions of two other men, and an alleged flight by [defendant] four months after the offense charged, and in denying [his] motion for a mistrial, ⅜ ⅜ íjí »

We mention first that the transcript shows no request for a mistrial concerning any incident relating to the reception of testimony of Officer Etzenhouser. It also discloses that while the officer did testify “regarding the actions of two other men,” to use the language of defendant in his point, there was no objection whatever to such testimony, and therefore there is no issue on this appeal pertaining thereto.

The only remaining matter pertains to testimony of the officer regarding “an alleged flight” by defendant “four months after the offense charged.” We shall relate what occurred. The robbery of the fur shop occurred on October 7, 1963. The officer testified that about 2:50 o’clock of the morning of February 7, 1964, he saw two colored men, each wearing a black hat and a raincoat, standing beside an automobile, and that when they saw his approach they ran between some houses. The officer searched for them, and about ten minutes later he saw another automobile speed away when he approached it. After a chase for several blocks, during which the officer had turned on the red signal light and was sounding the siren, the automobile stopped, and the defendant was in the automobile wearing a black raincoat and with a black hat on the seat beside him. The officer then testified that the chase was “approximately seven blocks,” and that he “notified the dispatcher that he was chasing a car.” When asked whether Thirty-sixth and Bales Street, over which he previously had stated the chase occurred, were wide streets, defendant then interposed the only objection made to any testimony of the officer and that objection was, “I will object to this line of testimony. It has no relevancy at all.” The objection was overruled, and the answer was, “They are narrow streets.”

The objection was not to the question asked immediately prior to the objection, but was stated to be to the “line of testimony,” whatever that included. But the questions pertaining to the “line of testimony” had already been answered, except the one question pertaining to the width of the streets, and there was no motion to strike the testimony. See State v. Sykes, Mo., 372 S.W.2d 24, 27, where it is stated that an objection made after the witness has answered is untimely, and in the absence of a motion to strike 'the answers, the ruling of the court or its failure to rule is not preserved for review. In addition, as a general rule, the arresting officer may testify to the defendant’s attempted flight, and the remoteness of the flight from the time of the commission of the offense affects only the weight of the evidence and not its admissibility. State v. Ball, Mo., 339 S.W.2d 783, 91 A.L.R.2d 1042. See also State v. Harris, Mo.App., 325 S.W.2d 352, 358. In view of indefiniteness of the objection and its lateness, we cannot say that the ruling resulted in any prejudice to defendant.

The record discloses that defendant was effectively represented by capable counsel at trial and on appeal. We have examined the parts of the record and the entries designated in Supreme Court Rules 28.02 and 28.08, V.A.M.R., and find them to be proper and free from error.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: HIGGINS, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Bill Frank TAYLOR, Appellant.
    No. 50866.
    Supreme Court of Missouri, Division No. 1.
    June 14, 1965.
    Motion for Rehearing or for Transfer to Court En Banc Denied July 12, 1965.

      Norman H. Anderson, Atty. Gen., Jefferson City, Martin M. Lipsitz, Sp. Asst. Atty. Gen., St. Louis, O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
    Richard E. Graulich, Anthony J. Romano, Romano & Graulich, Kansas City, for appellant.
   HIGGINS, Commissioner.

Bill Frank Taylor was convicted by a jury of the felony of receiving stolen property of a value greater than $50. He was fined $1,000 and sentenced to imprisonment for one year in the Jackson County jail. Sections 560.270 and 560.161, RSMo 1959, V.A.M.S. His sole contention is that the court erred in not sustaining his motion to quash search warrant and suppress evidence.

At the hearing on the motion to quash and suppress, the evidence included defendant’s Exhibits 1, 2, and 3, each of which consisted of a complaint, a search warrant, and a return and inventory. The complaints were alike as were the search warrants, except that each exhibit described different stolen personal property and places to be searched. Representative is Exhibit 3:

“COMPLAINT FOR SEARCH WARRANT TO AUTHORIZE THE SEARCH FOR STOLEN PROPERTY
(Without Supporting Affidavits)
“STATE OF MISSOURI, County of Jackson,
IN THE CIRCUIT COURT WITHIN AND FOR SAID COUNTY
Billy J. Witcig, being duly sworn, deposes and states that certain personal property, to-wit: Men’s clothing, consisting of (35) top coats; (24) sport coats; (24) student’s suits; (139) dress suits; and Ladies clothing, consisting of, (7) coats and (9) Car-Coats. Clothing bears following labels, Westerfield, Royal Hall, University Hall, Golden Emblem, & the Robert Hall label itself, also Harris Tweed, Cereni, Jane Hunter and Lady Lucy labels of the goods and chattels of Robert Halls Clothes, Inc., has been heretofore unlawfully stolen, and that said property is now being held and kept at the following place in the said county and state, to-wit: A grey one-story frame house, with a blue composition roof, and a basement, at 5409 Laurel, in Ray-town, Jackson County, Missouri. Wherefore complainant prays that a search warrant be issued as provided by law.
s/ Billy J. Witcig Affiant
“Subscribed and sworn to before me this 11th day of December, 1962.
s/ John H. Lucas JUDGE OF SAID COURT
“SEARCH WARRANT AUTHORIZING SEARCH FOR STOLEN PROPERTY
(Complaint under Form No. 37)
“STATE OF MISSOURI 1 COUNTY OF JACKSON }
IN THE CIRCUIT COURT OF JACKSON COUNTY DIVISION NO. 7
“THE STATE OF MISSOURI TO ANY PEACE OFFICER IN THE STATE OF MISSOURI
“WHEREAS a complaint in writing, duly verified by oath, has been filed with the undersigned Judge of this court, stating that heretofore the following described personal property, to-wit:
“Men’s clothing, consisting of (35) top coats; (24) sport coats; (24) student’s suits; (139) dress suits; and Ladies clothing, consisting of, (7) coats; and (9) Car-Coats. Clothing bears following labels, Westerfield, Royal Hall, University Hall, Golden Emblem, & the Robert Hall label itself, also Harris Tweed, Cereni, Jane Hunter and Lady Lucy labels of the goods and property and chattels of Robert Halls Clothes, Inc., 1203 North 7th St., Kansas City, Kansas has been unlawfully stolen, and it further appears from the allegations of said complaint that said property is being kept or held in this county and state at and in: A grey one-story frame house, with a blue composition roof, and a basement, at 5409 Laurel, in Raytown, Jackson County, Missouri.
“NOW THEREFORE, These are to command you that you search the said premises) above described within 10 days after the issueance of this warrant by day or night, and take with you, if need be, the power of your county, and, if said above described property, or any part thereof be found on said premises by yoti, that you seize the same and take same into your possession, making a complete and accurate inventory of the property so taken by you in the presence of the person from whose possession the same is taken, if that be possible, and giving to such person a receipt for such property, together with a copy of this warra(nt) or, if no person be found in possession of said property, leaving said receipt and said copy upon the premises searched, and that you thereafter return the property so taken and seized by you, together with a duly verified copy of the inventory thereof and with your return to this warrant to this court to be herein dealt with in accordance with law.
“WITNESS MY HAND AND THE SEAL OF THIS COURT ON THIS eleventh DAY OF December, 1962.
s/ JOHN H. LUCAS JUDGE OF SAID COURT”
Criminal Rule 33.01(a) V.A.M.R. provides: “If a complaint in writing be filed with the judge or magistrate of any court having original jurisdiction to try criminal offenses stating that personal property (1) which has been stolen or embezzled, or (2) the seizure of which under search warrant is now or may hereafter be authorized by any statute of this State, is being held or kept at any place or in any building, boat, vessel, car, train, wagon, aircraft, motor vehicle or other vehicle or upon any person within the territorial jurisdiction of such judge or magistrate, and if such complaint be verified by the oath or affirmation of the complainant and states such facts positively and not upon information or belief-, or if the same be supported by written affidavits verified by oath or affirmation stating evidential facts from which such judge or magistrate determines the existence of probable cause, then such judge or magistrate shall issue a search warrant directed to any peace officer commanding him to search the place therein described and to seize and bring before such judge or magistrate the personal property therein described.” (Italics added.)

Appellant contends that the italicized portion of the Rule “is unconstitutional and in violation of the Fourth and Fourteenth Amendments of the Constitution of the United States of America, and Section IS, Article I of the Missouri Constitution, V.A.M.S. as there was no proper showing of probable cause for the procurement of the search warrant; there was no showing that any oral statements made by the applicant * * * was (sic) reduced to writing and verified by the applicant; there was no written affidavit signed by the applicant; nor was there any showing the affiant was sworn by the Judge * * *, nor any showing that the informant was reliable.”

The Rule contains two situations in which a search warrant shall issue. The first situation, exists upon the filing of a complaint for search warrant which is verified by oath or affirmation of the complainant and which states facts positively and not upon information or belief. The second situation exists when the complaint is supported by written affidavits stating evidential facts from which the judge determines probable cause. In the first situation, the verified statement of positive facts empowers the court to issue the search warrant; in the second, the court determines probable cause for issuance of the warrant from the facts contained in the complaint and from the affidavits or other evidence submitted to support the complaint. We are dealing here with the first situation only.

The complaint here is written and shows on its face to have been signed by the complainant or applicant; further examination reveals that the complainant was duly sworn and that he stated positively that certain stolen personal property was held- and kept at a certain location. The warrant recites and shows a finding of the filing of such a complaint, and upon that finding the court ordered the search warrant to issue. Under the Rule supporting affidavits are not required when the complaint contains on its face positive statements of probable cause verified by the oath of the complainant, and it would be difficult to draft a more succinctly positive statement than the complaint here contains. This, then, is clearly a compliance with the Rule, State v. Naething, 318 Mo. 531, 300 S.W. 829, 831 [2-5]; State v. McIntosh, Mo., 333 S.W.2d 51, 59 [12]; State v. Halbrook, 311 Mo. 664, 279 S.W. 395; State v. Brugioni, 320 Mo. 202, 7 S.W.2d 262, 263 [1-3] [4]; and it was not necessary for the court to reduce to writing any oral statements made by the complainant, State v. McCowan, 331 Mo. 1214, 56 S.W.2d 410, 414 [7, 8]; nor was it necessary to state that the defendant was in possession of the property listed where it was stated positively that the property was held and kept at a described place within the jurisdiction of the judge. Finally, there is no requirement that the court make a specific determination of the reliability of the informant. The warrant recites, however, that a duly verified complaint had been filed, and we hold this to be sufficient. State v. McCowan, supra, 56 S.W.2d 1. c. 414 [3, 4]. See also State v. Stevens, 316 Mo. 602, 292 S.W. 36, 37 [2], 38 [4],

Appellant cites a number of federal cases which are distinguishable. In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, the affidavit for search warrant stated that “Affiants have received reliable information from a credible person and do believe, etc.” The affidavit provided no further information concerning either the undisclosed informant or the reliability of the information. The court held that although an affidavit for search warrant may be based on hearsay and need not reflect direct personal observations of the affiant, in such cases there must be supporting circumstances to meet the standard of reasonableness. This case is not in point because it does not deal with a verified complaint which states facts positively. Rather it is clearly an information and belief situation such as is described in the second part of Rule 33.01. To the same effect is Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159, where “It (the warrant) went upon a mere affirmation of suspicion and belief without any statement of adequate supporting facts.” In Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, the court said: “When the complaint (for warrant of arrest) in this case is judged with these considerations in mind, it is clear that it does not pass muster because it does not provide any basis for the Commissioner’s determination under Rule 4 that probable cause existed. The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be .made.” (Italics added.) The affidavit in that case was, in the judgment of the court, a mere conclusion, and the case does not establish invalidity of the first part of our Rule 33.01 governing search warrants. The italicized portion of the holding tends rather to be in support of the validity of our Rule. In United States ex rel. Edward J. Mancini v. Rundle, Pa., D.C., 219 F.Supp. 549, the search warrant was issued on an un-sworn complaint and affidavit which recited no facts from which a determination could be made. And, in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, and Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, the search in question was made without a warrant. In Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260, the warrant had become void for failure to execute within the time prescribed, and in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, there was also a question of improper execution. None of these cases are in point.

We conclude that the complaint and search warrant in this case were in compliance with, and as authorized by, Criminal Rule 33.01, and that the provision of that Rule under attack here ⅛ not inconsistent with constitutional guarantees against unlawful searches and seizures for any of the reasons stated.

We have examined those matters as required by Criminal Rule 28.02, V.A.M.R. The amended information is sufficient to charge the offense of receiving stolen property to which defendant pleaded not guilty. The verdict is in proper form, is responsive to the issues, and the punishment is within the limits prescribed by law. Defendant and his counsel were present throughout the trial and counsel represented defendant on appeal. Allocution was granted and the judgment and sentence was responsive to the verdict.

The judgment is affirmed.

HOUSER and WELBORN, CC., concur.

PER CURIAM.

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

All concur.


author: BROADDUS, Special Commissioner.

text:
    Patricia REHG, a Minor, by Her Natural Guardian and Parent, John Charles Rehg, Plaintiff-Respondent, v. Ronald GIANCOLA, Defendant-Appellant,
    No. 31908.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.
    Rehearing Denied June 21, 1965.

      Lawrence O. Willbrand, St. Louis, for defendant-appellant.
    John D. Hasler, St. Louis, for plaintiff-respondent.
   BROADDUS, Special Commissioner.

This is an action for breach of promise of marriage. Plaintiff recovered a verdict and judgment. Defendant has appealed.

Plaintiff’s evidence was that defendant and a friend of his were introduced to her on a Friday night late in April of 1962 at a drive-in restaurant in St. Louis County where she was sitting in a car with four other friends. Plaintiff was at that time seventeen years of age and defendant was twenty-two. Plaintiff was a senior in Rite-nour High School and living at home with her parents. Eight days later, on the Sth of May, Saturday, defendant telephoned her at her parents’ home and asked her to go out for the evening and plaintiff accepted, defendant came by the home of plaintiff that evening, was introduced to her parents and took plaintiff out in the automobile of defendant. That evening defendant asked plaintiff to go with him on a picnic the following day on Sunday at Creve Coeur. On the next day, Sunday, May 6, plaintiff accompanied defendant on the picnic where ten other couples were present. Beer and soft drinks were served and that evening on the way home defendant drove out a lonely road in order “to talk” to plaintiff and while parked on this road defendant asked plaintiff if she would consider marrying him and plaintiff told him she did not know him well enough, would have to talk with her parents about it and would have to have time to “think about it.” Defendant told her that he made good money as a carpenter and could take care of her and their children. Defendant pressed his feelings for plaintiff upon her, told her he loved her and after holding out such promise of marriage and the use of “overpowering force”, plaintiff submitted to sexual relationship with defendant. Plaintiff had never had such a relationship with another man before.

They made plans to be together the next Friday evening and went to a drive-in the-atre on that night. Afterward, and driving on a different road from the previous week, defendant again told plaintiff how strongly he felt about her, and that he hoped she would consider his proposal and she told him that she would. Defendant again pressed plaintiff for a relationship that evening and plaintiff told him she thought they should wait until after they were married, but defendant told her it didn’t matter and that a lot of couples had this relationship before marriage and subsequently, plaintiff again submitted. Plaintiff saw defendant the following Saturday and talked to him during the week several times by telephone. Plaintiff went out with defendant a total of about seven times from the 5th day of May to the week of her high school graduation party and dance scheduled on May 31, to which event defendant had promised plaintiff he would take her and for which he gave her the money to purchase the tickets. On the night of the graduation party and dance, plaintiff waited at home all evening for defendant to come as they had planned, but defendant never came nor ’phoned the entire evening. After the graduation exercises the following day, plaintiff accompanied her aunt and uncle who were visiting from Arkansas, back to their home where she remained with them until the first week of July when she returned to St. Louis. While she was gone, defendant ’phoned her home in St. Louis “a couple of times.”

Upon plaintiff’s return to St. Louis, defendant had a friend of his telephone her and then defendant got on the ’phone and asked plaintiff if he could come over to her home. She asked him not to come, but defendant came anyway and brought his friend and another girl with him. When he arrived at her home, defendant urged plaintiff and his friends do likewise, to take a trip with him over the weekend to a resort in Southern Missouri which plaintiff refused. One week later the friend of defendant again called her on the ’phone and asked her to talk to defendant and plaintiff refused.

In late July plaintiff’s parents took her to their family doctor and after examination, plaintiff was informed she was pregnant about two months. Plaintiff told her doctor she was not married and the doctor asked her if defendant would talk with him. At his urging and her father’s request, plaintiff telephoned defendant the same day she visited the doctor and talked with defendant and informed him she was pregnant and asked him to carry out his promise of marriage to her. Defendant told her he was not going to do anything about it, that he had no worries; that plaintiff couldn’t prove it anyway and that he had gone “through this before” and had “always won the case.” Defendant did tell plaintiff on this occasion, however, that he would take care of it if she would have an abortion.

Plaintiff testified her baby was born on February 8, 1963, nine months to the week after her relationship with defendant. Plaintiff testified that she was employed in August, 1962, at a bakery, making $200 per month, where she had worked for one and a half years previously, part-time during school, but that by the end of her third month of pregnancy, she left that employment because of her physical condition; that she delivered in February, 1963, and went to work in April, two months later, and that she lost the opportunity of making $1800 in earnings during that nine months period. Plaintiff testified that she paid her own expenses for hospital and doctors, a total of $340, and that the expense of caring for her baby was costing her approximately $20 to $25 per week since its birth and that she contributed that sum regularly each week to her parents for herself and the baby.

Plaintiff testified her social life and her contact with friends was completely ruined since the birth of the baby, and that her old school friends never called her and that if she chanced to see them on the streets they never speak, and that she experienced difficulty in obtaining gainful employment after the child’s birth in giving information about herself having a child and being a single person. At the time of the trial, however, she had been at her present employer’s for ten months.

Defendant admitted sexual relationships with plaintiff on at least two occasions in May, 1962, but denied ever urging her to do so or ever asking her to marry him.

Appellant’s first contention is that the trial court erred in overruling his motion for a directed verdict offered at the close of all the evidence. In determining whether or not plaintiff made a submissible case we are required to view the evidence in the light most favorable to plaintiff, the prevailing party, and give her the benefit of all reasonable inferences to be drawn therefrom. We have set out the evidence quite fully. That it discloses that plaintiff made a case for the jury to us seems clear.

Appellant next contends that the court erred in refusing his offered Instruction A. Appellant calls it a converse instruction, which it is not. This instruction merely attemped to limit the amount of damages that would be awarded plaintiff in the event the jury found for her. It was in no sense a true converse of plaintiff’s verdict directing instruction or of any element contained therein essential to plaintiff’s recovery. It was purely a cautionary instruction. The trial court has a broad discretion in the giving or refusal of cautionary instructions, and a reviewing court will not interfere unless there is a clear abuse of discretion. We find no abuse of discretion in this instance.

Appellant next complains of the refusal of his offered instruction C. It sought to tell the jury that if they found “that plaintiff was not of chaste character prior to the occasion mentioned in evidence, then you should find for the defendant.”

It is the general rule that plaintiff’s unchastity must be specially pleaded as a defense to an action for breach of promise. 11 C.J.S. Breach of Marriage Promise § 27e, page 790 ; 9 C.J. Breach of Marriage Promise § 56, page 348. No such defense was tendered by appellant. Moreover, no evidence came from appellant of any previous unchasteness and the only evidence was from plaintiff that appellant was the first man with whom she had ever had such relations. Other independent witnesses who had known plaintiff since she was a small child attested to her previous good reputation for morality and truthfulness. The contention lacks merit.

Appellant charges the court with error in allowing plaintiff to show to the jury for a few moments the eleven month old child alleged by plaintiff to have been born of the relationships with appellant, thereby arousing the sympathy, passion and prejudice of the jury in her favor. Appellant cites no authority in support of his contention. In this state in criminal actions where a defendant’s liberty, or even his life, is at stake, it has been held that the exhibition of an infant is within the sound discretion of the court. State v. Wells, Mo., 367 S.W.2d 652; State v. Fogg, 206 Mo. 696, 105 S.W. 618, 621. If such is permitted in criminal cases it can hardly be said that the discretion of the trial court would not be extended to the showing of a child in a civil case.

Instruction No. 4 dealt with the measure of damages. Appellant picks at every possible item he beholds in his effort to find something in this instruction which he argues to be erroneous. He first begins by saying that the instruction does not require a finding that the plaintiff was damaged. Instruction No. 3 fully submitted the essential elements of plaintiff’s theory of the case in detail and required the jury to find these elements before bringing in a verdict for plaintiff. That instruction when read with Instruction No. 4 fully cast plaintiff’s case as one with a contract to marry, the yielding sexually by plaintiff to defendant in reliance thereon, the conceiving of a child, the refusal of defendant to marry plaintiff — the breach — and Instruction No. 4 carefully submitted qualifying and cautionary requirements before any monetary award be made to plaintiff.

Appellant next complains that by telling the jury that it could consider any alteration of plaintiff’s moral and social standing made the instruction vague and gave a roving commission to the jury. Plaintiff pleaded these as elements of her damages and offered testimony to substantiate the same. Certainly, plaintiff was entitled to instruct on this as an element of her damages.

Appellant also complains of vagueness and a roving commission to the jury relative to any increased burden plaintiff might sustain in finding gainful employment, bearing in mind she was a single woman with a child. Plaintiff pleaded this as an element of damage and uncontested evidence was offered by her as to potential employers refusing her employment when it was learned she had an illegitimate child.

And the Instruction does not assume, as appellant argues, that plaintiff was unable to engage in employment for a period of time before the birth of the baby and for several months afterward. These elements were testified to as well as pleaded and no objection was made as to the admission of this evidence and no contrary evidence was offered.

Nor does the Instruction assume that plaintiff sustained medical expenses without requiring a finding to that effect. And these expenses were not “exclusively” recoverable by plaintiff’s father, as appellant asserts. They were charged to and paid by plaintiff. Plaintiff was legally obligated to pay them even though she was a minor.

Finally appellant brings to his argument the theory that expenses of an illegitimate child are not proper items of damage. It is true our courts have ruled that an action will not lie for support brought by the illegitimate children or in their behalf, against the putative father. (State ex rel. Canfield v. Porterfield, 222 Mo.App. 553, 292 S.W. 85; James - v. Hutton, Mo.App., 373 S.W.2d 167, and Heembrock v. Stevenson, Mo.App., 387 S.W.2d 263.) However, in the instant case we are not dealing with the general liability of a father for the support of his illegitimate child, but with the question as to what constitutes the proper measure of damages for breach of the contract of marriage.

In the case of Erwin v. Jones, 192 Mo.App. 326, 180 S.W. 428, the Springfield Court of Appeals affirmed a judgment for plaintiff in a suit for breach of contract of marriage, and the court approved an instruction telling the jury that in assessing the plaintiff’s damages it could take into consideration “the support 'and maintenance of said child” bqrn of the relationship between the parties. (Emphasis ours.)

In Liese v. Meyer, 143 Mo. 547, 45 S.W. 282, our Supreme Court in affirming a $10,-000 judgment for the plaintiff in a suit for breach of promise stated that the award was not excessive because the sum was such that if capitalized at six percent per year, it would yield $50 per month, “which can scarcely be looked upon as an extravagant amount for the support of herself and child.” (Emphasis ours.)

In Welge v. Jenkins, 195 S.W. 272, the Texas Civil Court of Appeals in affirming a judgment for the plaintiff in a suit for breach of promise, said it may not deem it necessary to decide the question whether the plaintiff was entitled to recover damages for the support of an illegitimate child born to her as a result of the defendant’s seduction of her under promise of marriage, but if such a decision were necessary, it would hold that damages for support and maintenance were recoverable. The court said it is only an assertion of “commonsense” when one says that “if the defendant had not breached his promise, he, and not the plaintiff, would have been liable for the support and maintenance of the child which would have been born during wedlock.” And “we think the jury, in awarding damages, should be permitted to take into consideration and allow compensation for the fact that, as a result of the breach of contract, the father has shifted the support of the child from himself and placed it upon the mother.” We take the same view, and, being supported by the holding of the Springfield Court of Appeals in the Erwin case, supra, we rule the contention against the appellant.

The judgment was for the right party and should be affirmed. Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion of BROADDUS, Sp. C, is adopted as the opinion of this court. The judgment is affirmed.

WOLFE, P. J., RUDDY, J., and J. MORGAN DONELSON, Special Judge, concur.


text:
    Donna LORRAINE, Plaintiff-Respondent, v. E. M. HARRIS BUILDING COMPANY, a Corporation, Defendant-Appellant.
    No. 31887.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.
    Rehearing Denied June 21, 1965.

      Evans & Dixon, John C. Shepherd, Paul V. Gilbert, St. Louis, for defendant-appellant.
    Louis S. Czech, Clayton, for plaintiff-respondent.
   JAMES W. BROADDUS, Special Commissioner.

This is an action for personal injuries which allegedly occurred when the plaintiff, Donna Lorraine, fell on the front porch of a display house of the defendant. Plaintiff recovered a verdict and judgment and defendant has appealed.

Prior to the voir dire examination plaintiff’s counsel, in outlining her case to the jury panel, referred to a wet “wooly” mat on the defendant’s porch and stated that as the plaintiff was coming out of the house she stepped on the mat, got her foot wet causing her to slip. The defendant objected and requested that the panel be instructed to disregard this statement with regard to the mat being wet as there was no allegation in the petition concerning the wet mat. The court stated that the wet mat was mentioned in plaintiff’s deposition, and overruled the objection. Defendant’s counsel then stated that if there was a contention that the mat played a part in the accident, the defendant claimed surprise for the reason that such was not pleaded, and requested a continuance to meet the issue. The court referred to the matter after the jury was selected at which time the defendant renewed its objection, the objection again being overruled on the basis that plaintiff had referred to the mat in the deposition. The defendant then requested the court to allow its objection to continue throughout the trial.

The plaintiff was the first witness. She testified that she, her husband and two neighbors were visiting the defendant’s subdivision and a display house therein when the accident occurred. It had rained the night before, which was Saturday night. The plaintiff and her group got to the subdivision about 12:00 on Sunday. The group went into the house, looked around, and all left by way of the front door except the plaintiff, who stopped before she left and went back to check something about the kitchen. Then, several minutes later, she started out the second time, she stepped onto the porch and onto a “wooly” mat, turned around and reached back and pulled the door closed. She stated that the porch was dry. She could not tell whether the mat was wet or dry. She saw nothing on the porch as she started to walk, she took one step, then took another one and her foot slipped out from under her and she fell 1c the ground by the side of the porch. There was no hand railing or banister on the porch.

Plaintiff’s husband testified that they had gone into the display home and he and the other people came out and were waiting for the plaintiff; that he heard a thud and saw his wife on the ground. He went to her and Paul Willenbrink went on the -porch and stepped on the mat and found it was wet. While he was standing over his wife he saw one foot track and a little “slide” on the porch and he looked and couldn’t figure out where it came from. He stepped on the mat and then on the porch and left wet prints; that when he entered and came out of the house the porch was dry.

Mr. Willenbrink, a neighbor of plaintiff, and who was with plaintiff and her husband, testified on behalf of plaintiff that he heard plaintiff fall, but didn’t see her fall. He said the porch and sidewalks were dry and the porch was dry when he went into the house and also when he came out; that he looked at the porch after plaintiff fell and saw a wet track and slide mark; that he stepped on the mat and made tracks on the porch; that by looking at the mat one couldn’t tell if it was wet or dry; that with his wet foot he could slide on the porch.

Bloyce L. Williams, defendant’s superintendent of construction, was called by plaintiff to testify. He stated that this particular porch was finished with a metal trowel; that this was different from a wood trowel in several respects, one of which is you get a rougher finish with the wood trowel; that the walk in front of the house was finished with a wood trowel; that the surface of the concrete porch is slippery when wet and that they knew this when they put the finish on the porch; that a drier composed of one-quarter cement and one-quarter sand was put into the finish of the concrete; that this closes the pores of the finish so that it does not absorb water and would be slicker when wet. Williams was asked, over defendant’s objections, whether certain safety precautions could have been taken on the porch. The witness testified that they could have provided the steps with rubber treads and that they could have used a rough finish on the porch, as well as corundum, which makes a gritty surface when put into cement, and they could have provided a hand rail or a banister; that defendant furnished the display home and provided the coco mat which was about two inches thick made of fiber with cord on the bottom.

John McHale Dean, an architect, testifying on behalf of plaintiff stated that the house was built high off the ground and that three or four risers off the ground would be considered high; that under the circumstances, it would have been proper to have had some form of railing on the porch.

Max W. Crask, a cement contractor, also testified for plaintiff. He stated that there are six types of finishes on concrete; that if a dry cement is used on top it gives it more of a glaze, firm finish, will wear longer and will become slippery when wet; that as a rule with three risers a hand rail is provided and that there were three steps at this porch.

Defendant’s evidence consisted of Professor Alvin W. Brust, of Washington University, a teacher in material of construction. He testified that he had examined these steps and that they were typical of similar steps of front porch slabs throughout the area.

Appellant’s first contention is that plaintiff did not make a submissible case. Appellant begins its argument by saying that it relies heavily on Point II of its brief that plaintiff’s failure to plead anything concerning the coco mat, that it was wet, or anything concerning wetness should have prevented plaintiff from introducing evidence concerning these matters. It then states: “ * * * Certainly, as no allegations of negligence concerning the wet mat are pleaded they should not be considered in determining whether the plaintiff made a submissible case. A judgment for the plaintiff cannot be sustained on a theory which is not pleaded. Horvath v. Chestnut Street Realty Co. [Mo.App.], 144 S.W.2d 165, 169.” That is true. It is also true that in a personal injury action, where the judgment must be reversed because of submission of the case on a theory other than that pleaded, and where the facts are such that with a proper petition, the question of defendant’s negligence would have been for the jury, the judgment will not be reversed outright, but the cause will be reversed and remanded for a new trial. Parker v. Drake, Mo.App., 220 S.W. 1000. This is what was done by this court in the Horvath case, which appellant cites.

Being aware of the latter rule appellant has elected to “ * * * consider plaintiff’s evidence in its entirety both the pleaded and unpleaded aspects * * and contends “ * * * that even with the evidence of the wet mat the plaintiff did not make a case and thus no such remand should be necessary here.”

The rule with respect to the duty which the owner or occupant of land owes to an invitee has been stated many times. It is: “ * * * The owner of lands is liable in damages to those coming thereon, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the premises, which is known to him and not to them, and which he has suffered negligently to exist, and of which they have received no notice. * * * ” Vogt v. Wurmb, 318 Mo. 471, 475, 300 S.W. 278, 279. It is not a lack of understanding of this general rule that causes the courts concern, but rather the application of the rule to a given set of facts.

It has been many times held that negligence is a relative term, to be tested under the facts of each particular case. It is also well established ¿that negligence is not a question of law unless the acts on which its existence depends are of such a character that reasonable minds could not differ, and where different conclusions can be drawn from the evidence, negligence is a jury question.

Appellant states in its brief that it “ * * * has sought to find cases analogous to the present facts. None could be found which were identical but defendant will set out several which were the closest to our situation.” It then proceeds to quote from cases involving falls on marble, terrazzo and waxed floors. These cases do not govern the instant case. Here we have a situation where the concrete porch was of such a finish that it was smooth. The finish was made more slick by using a drier to close the pores so that water would stand on the porch. But in addition, we have the wet mat being allowed to remain directly in front of the entrance door. The evidence is undisputed that at the time plaintiff and her group came to the display house the porch was dry and the sidewalks were also dry. It had not rained since the night before. In arguing that plaintiff was guilty of contributory negligence appellant’s brief says: “ * * * It is common sense that such a coco mat would be wet and remain wet long after the sidewalks had dried especially since the purpose of such mats is for people to wipe their feet on before entering the house. * * * ” Of course, if the porch and sidewalks were dry there would have been no need for people invited to enter the house to wipe their feet and thus not bring moisture and mud into the house. What then was the purpose of the mat being there at the time plaintiff fell? Appellant knew that the porch when wet would be slippery, yet it permitted the wet mat to remain “right in front of the door.” It would have been a simple matter for appellant to have pushed the mat to one side. We are not prepared to hold that, as a matter of law, plaintiff did not make a submis-sible case. On the other hand, we think that under the particular facts here involved, reasonable minds may well differ concerning whether or not negligence existed. Thus the question was one of fact for the jury to determine.

Nor can we hold that plaintiff was contributorily negligent as a matter of law. She testified that by looking at it she could not tell whether the mat was wet or dry. Her neighbor, Mr. Willenbrink, said the same thing. As said in the case of Holmes v. Egy, Mo.App., 202 S.W.2d 87, 91, “* * * ‘plaintiff was not required, in the exercise of ordinary care, to look out for an unsafe condition of which she (plaintiff) had not been warned or did not know, or which was not obvious to one in the exercise of ordinary care.’ * * * ” Whether plaintiff was exercising that degree of care for her own safety which an ordinarily prudent person would have exercised under the same or similar circumstances was a jury question.

Instruction No. 1 required a finding for plaintiff in the event the jury found “ * * * that this said cement porch was maintained in that there was a mat thereupon which was wet * * Appellant’s assertion that there was no allegation in the petition concerning the wet mat is correct. And no amendment to the petition was made.

As stated by our Supreme Court in the case of Faught v. St. Louis San Francisco Ry. Co., Mo., 325 S.W.2d 776, 781, “* * * neither the evidence nor the instructions may be broader than the pleadings, one may not plead one state of facts and theory and to the unprepared surprise of his adversary recover on another and different theory and state of facts. * * * ”

For this error in the instruction, which was highly prejudicial to appellant, the judgment should be reversed and the cause remanded. Your Special Commissioner so recommends.

PER CURIAM:

The foregoing opinion by BROADDUS, Special Commissioner, is adopted as the opinion of the court, and the judgment is reversed and the cause remanded.

WOLFE, P. J., RUDDY, J., and J. MORGAN DONELSON, Special Judge, concur.


author: DOERNER, Commissioner.

text:
    CITY OF ST. LOUIS, a Municipal Corporation, Plaintiff-Respondent, v. BRUNE MANAGEMENT CO., Inc., a Corporation, Defendant-Appellant.
    No. 31936.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.
    Rehearing Denied June 21, 1965.

      Sigoloff & Sigoloff, St. Louis, for defendant-appellant.
    Thomas J. Neenan, City Counselor, Dewitt T. Lawson, Jr., Asst. City Counselor, John J. Fitzgibbon, Associate City Counselor, St. Louis, for plaintiff-respondent.
   DOERNER, Commissioner.

This case originated in the municipal court of the City of St. Louis upon an information charging defendant with the operation on September 25, 1963, of a rooming house' without a permit or a license, in violation of • certain enumerated sections of the City Code. The transcript before us does not reveal the outcome of the prosecution in the municipal court, but in the St. Louis Court of Criminal Correction, to which one of the parties obviously appealed, the defendant was found guilty and fined $50. From that conviction defendant appealed.

The pertinent ordinance is numbered 48338. Section 1 of Division Two of that enactment provides that, “It shall be unlawful to operate a Hotel, Lodging House, Rooming House or Boarding House without first obtaining a permit and license as hereinafter set forth.” Section 2 of the same Division requires, “Every operator, before engaging in the business of conducting a * * * rooming house * * * ” to file an application for a permit with the Building Commissioner, and subsequent sections make the issuance of a license depend upon obtaining a permit. Section 2 of Division Seven declares that any operator who shall violate any of the provisions of the ordinance shall he deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than $25 and not more than $500.00, and each day’s violation shall constitute a separate offense.

Division One, Section 2, contains the definitions of various words and terms used in the ordinance. The meaning ascribed to the word “operator” is stated to be:

“OPERATOR — Operator shall include the owner, agent of owner, keeper or person in charge of a rooming house, boarding house, lodging house or hotel.”

The term “rooming house” is defined as follows:

“ROOMING HOUSE — A rooming house is a dwelling, other than a hotel, containing one or more rooming units or three or more light housekeeping units; * * *.”

No contention is made that the units in question were rooming units; rather, the theory of the prosecution is that they were light housekeeping units. That term is also defined in the ordinance as:

“LIGHT HOUSEKEEPING UNIT—
A light housekeeping unit is any dwelling unit other than an apartment as herein defined, when located in a multiple dwelling or rooming house.”

This, in turn, necessitates a reference to the definition of the term “dwelling unit.” Those words are also defined in the ordinance :

“DWELLING UNIT — A dwelling unit shall mean any room or group of rooms located within a dwelling and forming a single habitable unit with cooking, living, sanitary and sleeping facilities.”

The case was submitted to the court, sitting without a jury, upon an agreed statement of facts. The substance of the stipulated facts is that on September 25, 1963, the date mentioned in the information, defendant Bruñe Management Co., Inc., a corporation, was the rental agent for the premises at 3908 Finney Avenue, in the City, which were occupied by five unrelated tenants. Prior to that date each tenant had separately rented, as a month-to-month tenant, a particular unit (of one or more rooms) from the defendant, upon terms which required the rent to be payable in advance and for which the tenant received a rent receipt. Under the terms of the rental defendant provided heat and hot and cold water for each tenant, but no other facilities. Facilities for living, sleeping and cooking were furnished by each tenant, including all furniture, beds, bedding, stoves, tables and chairs, and household furnishings. The individual units were used by each tenant for cooking, living and sleeping, and gas and electricity were separately metered for each unit and the charges therefor paid for by the tenant thereof to the utility companies. Defendant conceded in the stipulation that on September 25, 1963, it had no permit or license to operate a rooming house.

The dispute between the parties centers on the phrase “ * * * forming a single habitable unit with cooking, living, sanitary and sleeping facilities” as employed in the definition of a dwelling unit. (Emphasis added.) Defendant points out that the units were unfurnished at the time it rented them and contends that the mere rental of individual, unfurnished units does not constitute the operation of a rooming house under the ordinance; and that the ordinance makes the rental of such units the operation of a rooming house when, and' only when, as a part of the rental, the operator furnishes the facilities for cooking, living and sleeping. The City, on the other hand, takes the position that the word “with” means “having or containing,” and argues that it is immaterial who furnished the cooking, living and sleeping facilities; and that “ * * * the mere fact that they exist in a multiple dwelling is determinative of whether the units are dwelling units by definition.”

There are two rules which are peculiarly applicable to the issue presented. The one is that a penal statute or ordinance is to he construed strictly against the prosecuting authority, so that where there is fair room for doubt as to whether the act or thing complained of comes within the scope of its condemnation, such doubt is to be resolved in favor of the defendant. Levin v. Carpenter, Mo., 332 S.W.2d 862, 79 A.L.R.2d 859; Ex parte Lerner, 281 Mo. 18, 218 S.W. 331; State ex rel. Spriggs v. Robinson, 253 Mo. 271, 161 S.W. 1169; City of St. Louis v. Triangle Fuel Co., Mo.App., 193 S.W.2d 914. This is so notwithstanding proceedings by municipalities against violators of ordinances are in the nature of civil actions and not prosecutions for crime in a constitutional sense. City of Webster Groves v. Quick, Mo., 319 S.W.2d 543; Levin v. Carpenter, supra; Ex parte Lerner, supra. Since a violation of the ordinance is made a misdemeanor and subjects the offender to a fine, Ordinance 48338 is, of course, penal in nature.

The other rule is that, as in criminal cases, the burden was on the City to prove that the defendant violated the ordinance. Kansas City v. Wilhoit, Mo.App., 237 S.W.2d 919; City of Grant City v. Simmons, 167 Mo.App. 183, 151 S.W. 187; Town of Glenwood v. Roberts, 59 Mo.App. 167.

Construing the ordinance strictly against the City, as we must, we cannot agree with the interpretation placed upon it by the City. In the first place, if the dwelling unit must contain the facilities mentioned to qualify as such, as the City contends, then it necessarily follows that the defendant did not engage in the business of operating a rooming house at the time it rented the units to the individual tenants because they did not then contain such facilities. Thus what the City is asking us to say, in effect, is that the rental of units which was not a violation of the ordinance when entered into subsequently became a misdemeanor when the third of the tenants moved in his furniture and furnishings. Not only would this be a highly anomalous and absurd result, but it would violate every concept of justice.

Furthermore, other portions of the ordinance demonstrate that it cannot be given the retrospective application for which the City contends. Section 2 of Division Two provides that, “Every operator, before engaging in the business of conducting a * * rooming house * * * ” must file an application with the Building Commissioner for a permit. By Section 4 of the same Division he is required to state in his application, among other information:

“g. The number of rooming or light housekeeping rooms intended to be rented or used as sleeping rooms by paying guests.
“h. The maximum number of paying guests proposed to occupy each room.
“i. The number of beds, cots and bunks intended to be used by the guests.”

Where, as here, an operator offers for rent units consisting of as many as four unfurnished rooms it would obviously be impossible for him to know in advance the number of rooms which a then unidentified “paying guest” would use as bedrooms. It would be equally impossible for him to know in advance the number of persons in the family of such an unknown paying guest, or the number of beds, cots and bunks to be used by the members of the paying guest’s family. aAn operator, before engaging in the business of operating a rooming house, would be in a position to supply such information only where he rented the units furnished with beds, cots or bunks sufficient to accommodate a known number of persons.

Lastly, what is made unlawful by the ordinance is “ * * * to operate a * * * Rooming House * * * ” without first obtaining a permit and license. The word “operate” is not defined in the ordinance and its ordinary meaning must therefore be ascribed to it. As used in the ordinance it connotes the act of keeping, conducting, running, managing or carrying on a rooming house. It is apparent that one cannot operate a rooming house unless he is in possession and control of the premises. According to the agreed statement of facts, however, the defendant had rented the separate units to the five individual tenants prior to September 25, 1963, the day named in the information. If the five individuals were “tenants,”, as is agreed, then what was created was the relationship of landlord (on behalf of the owner) and tenant, with “ * * * the transfer of the exclusive possession and control of the premises to the tenant; * * *” Marden v. Radford, 229 Mo.App. 789, 84 S.W.2d 947, 954. The relationship of landlord and tenant is far different from that of proprietor and roomer or “paying guest,” as that case makes clear. For as was there said (p. 955): “ * * * A tenant has the exclusive legal possession of the premises; he and not the landlord being in control and responsible for the care and condition of the premises.” There is nothing in the agreed statement of fact which would support the inference that on the day named in the information the defendant had any right of possession or control over any of the five units, or over the premises as a whole. As far as the stipulation shows, defendant’s only obligation was to furnish heat, and hot and cold water to the tenants. Under these circumstances the evidence was not sufficient to show that the defendant on the day named was operating a rooming house within the ambit of the ordinance.

There is an additional reason why the evidence is not sufficient to sustain defendant’s conviction. If the word “with” in the definition of a dwelling unit means “containing,” as the City contends, then the definition should be read as encompassing “ * * * any room or group of rooms located within a dwelling and forming a single habitable unit containing cooking, living, sanitary and sleeping facilities.” This would require that the individual unit contain not only cooking, living and sleeping facilities but that it also contain sanitary facilities. However, in the agreed statement of fact it is stated “8. That none of the above named tenants have private or separate bathroom or sanitary facilities.” From this it is apparent that none of the units in question contained sanitary facilities, and that they did not fall within the definition of a light housekeeping unit or a dwelling unit even as those terms are interpreted by the City.

For the reason stated the Commissioner recommends that the judgment be reversed, and the defendant discharged.

PER CURIAM:

The foregoing opinion of DOERNER, C., is adopted as the opinion of this court. Accordingly, judgment is reversed and defendant discharged.

WOLFE, P. J., ANDERSON, J., and DOUGLAS W. GREENE, Special Judge, concur.


author: L. F. COTTEY, Special Judge.

text:
    William G. LIEBMAN, Employee, (Plaintiff) Respondent, v. COLONIAL BAKING COMPANY, Employer, and Royal Indemnity Company, Insurer, (Defendants) Appellants.
    No. 31785.
    St. Louis Court of Appeals. Missouri.
    May 18, 1965.
    Rehearing Denied June 21, 1965.

      Albert I. Graff, Malcolm I. Frank, St. Louis, for appellants.
    George R. Gerhard, St. Louis, for em ployee-respondent.
   L. F. COTTEY, Special Judge.

We have before us a claim for workmen’s compensation which has been denied by the Industrial Commission on the theory that the accident is governed by the “assault doctrine,” but which the Circuit Court of the City of St. Louis has allowed, on appeal, by applying the “street hazard doctrine.” To resolve that conflict it will be necessary to examine both of the doctrines that contributed to it, and, as occasion demands, to explain the purpose and define the proper elements of each. The facts are deceptively simple, but the subject they introduce has not infrequently proven to be so controversial in precept and so contradictory in example as “to perplex and dash maturest counsels.”

Respondent was employed by a wholesale baking company. His duties required him to make deliveries of the company’s products by truck to various retail outlets in St. Louis. About noon one day he parked his truck near the market of a regular customer, walked across the sidewalk to deliver an order of bread, and, as he approached the door, was assaulted from behind by a drunken stranger without motive or provocation. The facts are undisputed and so present a question of law only. May v. Ozark Central Telephone Co., Mo.App., 272 S.W.2d 845, 848. It is conceded that the incident occurred “in the course of” respondent’s employment; the question is whether it arose “out of” the employment, as our statute with equal emphasis requires. Sec. 287.120, V.A.M.S.; Williams v. Great Atlantic & Pacific Tea Co., Mo.App., 332 S.W.2d 296, 298.

The familiar rule is that an accident will be held to have arisen “out of” the employment when, from a consideration of all the relevant circumstances, it appears that there was a direct causal connection between the employment and the injury (attributable either to the nature of the employee’s duties or to the conditions under which he was required to perform them) so that the accident can fairly be said to have been a rational consequence of some hazard connected with (or aggravated by) the employment. Toole v. Bechtel Corporation, Mo., 291 S.W.2d 874, 879; Gregory v. Lewis Sales Co., Mo.App., 348 S.W.2d 743, 745-6; Scherr v. Siding & Roofing Sales Co., Mo.App., 305 S.W.2d 62, 65; Long v. Schultz Shoe Co., Mo.App., 257 S.W.2d 211, 212; May v. Ozark Central Telephone Co., supra, 272 S.W.2d 849. That is the cardinal requirement for compensability in all cases in Missouri, no matter how or where the accident may have occurred and no matter in what category the causative risk may be classified. Its basic factors are “causal connection” and “rational consequence.” When they are shown to exist, the test has been satisfied; otherwise, it has not.

Accidents sometimes happen, however, under unusual and confusing circumstances that tend to obscure or divert attention from the essential elements of the test. In such cases a decision as to whether the requirement has been met is always difficult and often doubtful. A special doctrine is simply a method or rule by which the factors of causal connection and rational consequence may be searched out and assigned their proper value in cases involving those more unusual and confusing circumstances; to the end that the facts peculiar to each may be more regularly analyzed by the test that is common to all. Such a doctrine, if it is to serve that purpose usefully, should be as definite in scope, as logical in method and as dependable in result as the inexact nature of the science will allow. It is not the function of a special doctrine to resolve the question as to whether the accident arose “in the course of” the victim’s employment. That is a preliminary test to be satisfied before there is any necessity for invoking the doctrine in aid of a final decision; implicit in its use is the assumption that that prerequisite finding has been made. In the ordinary case of an accident resulting directly from some act the employee is doing at the time, there will be no need to resort to the doctrine to establish compensability. But where it is claimed, as in the case at hand, that the incident has been produced by some hazard existing in the working environment, the chain of causal connection is lengthened, the relevant considerations are more diverse and complex, and the relationship of the accident to the employment is understandably more tenuous and obscure. It is in this type of case that a special doctrine most readily demonstrates its usefulness—and most commonly reveals its faults.

Those observations, made hopefully with the view of giving direction to the discussion, bring us now to the cases which confirm them, by implication or expression.

The assault doctrine has been fully developed in Missouri. It is possible to illustrate its scope and method by examples remarkably free of the contradictions that have attended its use in some other jurisdictions. Assaults divide conveniently into three classes. Larson’s Workmen’s Compensation Law, Sec. 7, p. 48 et seq.; Sec. 11, p. 131 et seq.; Kelly v. Sohio Chemical Co., Mo.App., 383 S.W.2d 146, 147.

1st: Those which are invited by the dangerous nature of the employee’s duties, or by the dangerous environment in which he is required to perform them, or are the outgrowth of frictions generated by the work itself, but which, in either event, are invariably revealed to be the result of some risk directly attributable to the employment. Injuries resulting from assaults of that character are compensable in Missouri. Typical examples may be found in Hacker v. City of Potosi, Mo., 351 S.W.2d 760, where a policeman was shot while investigating a traffic violation, and in Macalik v. Planter’s Realty Co., Mo.App., 144 S.W.2d 158, where a foreman was murdered in retaliation for having fired the assailant’s son. See also, Reed v. Sensenbaugh, 229 Mo.App. 883, 86 S.W.2d 388; Carlton v. Henwood, 232 Mo.App. 165, 115 S.W.2d 172; O’Dell v. Lost Trail, Inc., 339 Mo. 1108, 100 S.W.2d 289; Kaiser v. Reardon Co., 355 Mo. 157, 195 S.W.2d 477; Stephens v. Spuck Iron & Foundry Co., 358 Mo. 372, 214 S.W.2d 534; Pearce v. Modern Sand & Gravel Co., 231 Mo.App. 823, 99 S.W.2d 850; Keithley v. Stone & Webster Engineering Corp., 226 Mo.App. 1122, 49 S.W.2d 296; and Daugherty v. City of Monett, 238 Mo.App. 924, 192 S.W.2d 51.

2nd: Those committed in the course of private quarrels that are purely personal to the participants. Injuries resulting from assaults of that character are non-compen-sable in Missouri. Typical examples may be found in Lardge v. Concrete Products Mfg. Co., Mo., 251 S.W.2d 49, where the employee was struck in retaliation for his charge that the assailant had stolen his wine, and in Foster v. Aines Farm Dairy Co., Mo., 263 S.W.2d 421, where the fatal quarrel was triggered by the participants’ community of interest in the victim’s wife. See also, Toole v. Bechtel Corp., Mo., 291 S.W.2d 874, and Staten v. Long-Turner Const. Co., Mo.App., 185 S.W.2d 375.

3rd: Irrational, unexplained or accidental assaults of so-called “neutral” origin, which, although they occur “in the course of” the victim’s employment, cannot be attributed to it on any more rational basis than that the employment afforded a convenient occasion for the attack to take place. In some jurisdictions that circumstance is regarded as a sufficient reason for awarding compensation; but not in Missouri. Examples may be found in Ries v. De Bord Plumbing Co., Mo.App., 186 S.W.2d 488, where the employee was assaulted at his assigned place of work by a stranger with no apparent motive; In Kelly v. Sohio Chemical Co., supra, where the employee was struck down from behind in her office by an unknown assailant for no discoverable reason; in May v. Ozark Central Telephone Co., supra, where, for the sake of the discussion, it was assumed that the employee had been accidentally shot by a hunter while working in a wooded area; in Long v. Schultz Shoe Co., supra, where the employee was struck by a stray bullet in the course of a shooting scrape between other employees on the premises; and in Scherr v. Siding & Roofing Sales Co., supra, where a salesman calling on a customer at the latter’s place of business was hit by an object thrown wildly by another visitor on the premises.

In every Missouri case involving an assault of “neutral” origin compensation has been denied. The rationale in each, insofar as it is pertinent to the issue before us, has been that the risk of unprovoked assault is no more logically attributable to one man’s employment than to another’s unemployment, and that the mere fact that the employment provided a convenient opportunity for the assault to take place, as by bringing the victim and his assailant together at the point where it occurred, is insufficient to establish any causal connection between the employment and the injury, or to show that the latter was a rational consequence of the former.

That is the assault doctrine in Missouri. In its essential features and in the result to which it leads it conforms to the' rule in the majority of jurisdictions, although not without exception or criticism. Annotations, 15 A.L.R. 588, 21 A.L.R. 758, 29 A.L.R. 437, 40 A.L.R. 1122, 72 A.L.R. 110, 112 A.L.R. 1258, 8 A.L.R. 395, 23 A.L.R. 403; 99 C.J.S. Workmen’s Compensation § 227, p. 765 et seq.; Larson’s Workmen’s Compensation Law, Sec. 11.31, p. 184 et seq.; Schneider’s Workmen’s Compensation, Vol. 6, Chap. 22, p. 116 et seq.; 58 Am.Jur., Workmen’s Compensation, Sec. 265, p. 765-6. The assault in the case before us was clearly of neutral origin. We would unhesitatingly affirm the Commission on that ground were it not that respondent, pointing to the fact that the incident occurred in a public street, insists that that circumstance compels a different result by bringing the case within the purview of the street hazard doctrine. No phase of the discussion is so difficult to take in hand or so frustrating to conduct as that which respondent’s point now introduces.

The street hazard doctrine, unlike the assault doctrine, has been only narrowly developed in Missouri. It has furnished the basis for decision in a number of cases involving traffic accidents, but in none of them was it found necessary to frame so definitive a statement of the doctrine as to indicate either the basis or extent of its applicability to all other kinds of street accidents. Nor has it been possible in this situation to turn with confidence to the decisions of other jurisdictions for instruction. In not one of them, for instance, have we been able to find a firm definition of “street hazards,” surely the first requisite of a doctrine designed to deal with that special category of risks. Without it, the scope of the doctrine will always be indefinite, its application uncertain and its result doubtful. It is often said that street hazards are perils “peculiar or incidental to the streets.” 99 C.J.S. Workmen’s Compensation § 248(a), p. 873. What is a risk “incidental to the streets ? ” “Incidental” is a wanton word; it accommodates the writer’s interpretation on one occasion and solicits the reader’s on another. It invites us to suppose that the place where the risk manifests itself is the determinative factor in its classification, since it suggests no other. It provides no test by which causal connection can be ascertained with confidence. It proposes no method by which rational consequence can be determined with certainty. Any definition that relegates those factors to the vagaries of interpretation leaves the doctrine “bereft of pillar and prop.” And nowhere is the result of that infirmity more distressfully demonstrated than in those jurisdictions which allow an adaptation of the “positional risk theory” to serve as a street hazard doctrine.

Briefly, the positional risk theory makes an accident compensable if the victim’s employment caused him to be at the place where it happened. Obediently to that principle, if an employee’s duties require him to go into the street and he meets with an accident while there, the accident is held to be the result of his being there and hence attributable to his employment, since “but for” the employment he might have been elsewhere, out of reach of the harm that befell him. As we have seen in assault cases, however, that circumstance is regarded in Missouri as affording only a convenient opportunity for the accident to occur. It is a coincidence, not a cause. What is postulated is, that an accident which happens to a person while he is in the street happens because he is in the street; and the equally untenable corollary is, that an accident which happens to a man while he is employed happens because of his employment. The ultimate vice of the theory is that it begins by concerning itself with, and ends by confining itself to, the question of whether the accident occurred “in the course of” the employment. In the first particular it violates the basic function of a special doctrine; in the second, it abrogates the basic requirement of Missouri law. Thus it lends itself effortlessly to the approval of any claim so long as the employee was “on the job” at the time the accident occurred, irrespective of the source or nature of the hazard that produced it. With wonderful restraint and equal illogic, it has not been applied in cases involving injuries inflicted by acts of God; possibly on the assumption that in those instances it would be indiscreet to doubt the omniscience of the victim’s selection. At any rate, for those and no doubt other reasons, the positional risk theory is unacceptable in Missouri. Williams v. Great Atlantic & Pacific Tea Co., supra, 332 S.W.2d 299.

Any definition of street hazards, if it is to avoid the reproach of the positional risk theory and encourage a result consistent with the principles to which our courts are committed, must do more than locate the risk in the street; it must connect it with the employment, rationally. It must distinguish between coincidence and cause. And it must be sufficiently free from the vicissitudes of interpretation to preclude the allowance of claims that are beyond the contemplation of our Act; for it was not the intent of the law to furnish blanket insurance against any and every mishap that might befall an employee, in the streets or elsewhere. Stout v. Sterling Aluminum Products Co., Mo.App., 213 S.W.2d 244, 246; Morrow v. Orscheln Bros. Truck Lines, 235 Mo.App. 1166, 151 S.W.2d 138, 144. Now, where it is asserted that the accident was an outgrowth of the employee’s working environment, the factors of causal connection and rational consequence are said to exist if the causative risk was “inherent in the particular conditions * * * under which the employment is carried on.” Long v. Schultz Shoe Co., supra, 257 S.W.2d 213; Graves v. Central Electric Power Co-op, Mo., 306 S.W.2d 500, 504. We regard the word “inherent” as the key word in that quotation. Inherency of the risk in the working environment is the link by which the accident is causally connected with the employment and made attributable to it; it is the test by which the one is established as a rational consequence of the other. The requirement is not suspended, nor is the test of its satisfaction relaxed, by the fact that the street becomes the employee’s place of work. If he is injured by conditions existing there, he must show that the causative risk was inherent in those conditions; otherwise, his accident will be held not to have arisen “out of” his employment, but to have resulted either from some independent cause or from one unexplained. A street hazard, then, should be defined as one inherent in the use of the streets; meaning, in turn, one naturally, normally or logically encountered there by the public generally in the ordinary course of human affairs — “ * * * in the light of human understanding and experience,” as the Long case puts it. Moreover, we think inherency is the only factor with which the doctrine should concern itself. Two results of that conclusion may be noticed:

1st: Tested by inherency, the doctrine will apply not only to accidents caused by the uses to which streets are put, but also to those resulting from their construction or maintenance, including those produced by structures that overhang, underlie or stand in such close proximity to the streets as to pose a latent but nonetheless positive and continuing threat to traffic over them. Limited by inherency, the doctrine will be sufficiently definite in scope to exclude unauthorized claims, yet sufficiently flexible to permit its accommodation to related situations that seem sometimes to invite it; as, for instance, to an injury sustained on adjacent premises as the end result of an accident that began in the street from a risk inherent in its use, the proximity of the premises and the continuity of the event being links by which the injury there is rationally connnected with the hazard that produced it.

2nd: With inherency as its dominant factor, the doctrine eliminates, or confines to their proper spheres, the sometimes confusing considerations of “neutral risks” and ■“increased risk.” The classification of neutral risks may serve a useful purpose in assault cases; but streets do not generate blind and irrational forces as the human mind does when it is actuated by malice or mania. There is no reason, therefore, to be concerned with such a category in street accident cases when neither the streets themselves nor the uses they are designed to serve are capable of creating a risk that could appropriately be classified in it. Nor is “increased risk” a proper consideration in street accident cases. Street hazards, by any definition, are bound to be shared in some degree by all members of the traveling public. There is a rule that runs to the effect that where a risk is common to the public generally, it is incumbent on the claimant to prove that his employment increased his exposure to it beyond the common average, and thereby enhanced the likelihood of his being injured by it. May v. Ozark Central Telephone Co., supra; Schmidt v. Adams & Sons Grocer Co., Mo.App., 377 S.W.2d 564. That rule should only be invoked, however, where the accident is produced by a risk not inherent in the working environment. If the street becomes the employee’s place of work by virtue of his errand in it, and he is injured by a hazard inherent in the conditions existing there, compensation should be allowed. The fact that other persons may have been exposed to the same risk at the same time is irrelevant.

So much for the street hazard doctrine. Does it apply in this case? We say, No. The claim is based on an assault; the assault doctrine governs it. The fact that it occurred in the street is only a beguiling coincidence, not the cause. The risk of common assault is sometimes encountered in the streets, to be sure, but that does not make it a street hazard. Situs is not the test; inherency is.

Respondent cites two Missouri cases as refuting that conclusion. Let them be examined.

In Beem v. H. D. Lee Mercantile Co., 337 Mo. 114, 85 S.W.2d 441, 100 A.L.R. 1044, a traveling salesman, authorized to collect and actually carrying his employer’s money, was killed in the course of a highway robbery. The court said, 85 S.W.2d 1. c. 446, “ * * * ‘Highway robbery’ is robbery committed on persons using or traveling a public highway, and its name indicates that it is a danger incident to, connected with, and ‘arising out of’ the use of the highways. * * * ” Compensation was allowed. We agree that it should have been. “Highway robbery” can only occur on a public thoroughfare; nowhere else. The risk of it, however latent and rarely manifested, is naturally — indeed exclusively — attributable to the use of the highway; hence, inherent. Common assaults do not meet that test. Were the case to be decided by the same court today, however, in the light of progress since made in the classification of special risks, it is to be doubted that the court would dismiss from consideration, as it did in the penultimate paragraph of the opinion, the fact that the employee carried his employer’s funds, as that aspect of his employment made him a peculiarly attractive target for robbers, off the highway as well as on, and in the more modern view would have brought his case within the first class of risks in the assault category, by which the same result would have been reached.

In Buckner v. Quick Seal, Inc., 233 Mo.App. 273, 118 S.W.2d 100, an employee who was required to travel by train was, in the course of one of his trips, assaulted by a drunken thug whose only disclosed motive was to demonstrate the effectiveness of a “rabbit punch”; clearly an unprovoked assault. The beguiling coincidence was that it occurred while the employee was on a business trip. Compensation was allowed. We cannot agree with that decision and must decline to follow it. Its rationale is revealed by two statements from the opinion.

(a) “ * * * It is difficult to understand how he was in the course of his employment * * * at the time the accident occurred and such accident not have arisen out of his employment,” 118 S.W.2d 1. c. 110-111. The author’s quandary on that score explains the result he reached. It is unlikely to arise again. It is now settled that our Act imposes two requirements for compensability —the accident must not only arise “in the course of,” but also “out of,” the employment. “ * * * These are separate tests and each must be satisfied, * * * ” Williams v. Great Atlantic & Pacific Tea Co., supra, 332 S.W.2d 1. c. 298; and “* * * proof of one does not establish the other, * * * ” Hacker v. City of Potosi, 340 S.W.2d 166, 1. c. 169. The facts met the first test; the author simply inferred compliance with the second from that circumstance.

(b) “ * * * It is true that the dangers to which the employee was subjected must have resulted from the place to make it a train risk; but it is enough if the employee was in the place by reason of his employment and in discharge of his duties to his employer,” 118 S.W.2d 1. c. 111. That is a forthright, but surely unconscious, endorsement of the positional risk theory. The inadvertent resort to it seems to have been suggested by Katz v. Kadans & Co., 232 N.Y. 420, 134 N.E. 330, 23 A.L.R. 401, from which the Beem and Buckner cases both quote extensively and on which the latter, at least, relies with misplaced confidence.

In the Katz case a deliveryman was stabbed by a maniac who happened to be at large in the streets. Compensation was allowed on the positional risk theory which New York espouses. Larson’s Workmen’s Compensation Law, Sec. 10, p. 85 et seq., and cas. cit. The opinion seems to recognize that there is a difference between cause and coincidence, but the illusion of logic is dispelled in the next breath by treating the terms as synonymus “if the workman is in the place by reason of his employment.” That is the positional risk theory in its practical application. In the light of its repudiation in Missouri it cannot be allowed to influence our decision in the case before us.

The ruling of the learned circuit judge is accordingly reversed, and the award of the Commission affirmed.

WOLFE, Acting P. J., and ANDERSON, J., concur.


author: CROSS, Presiding Judge.

text:
    KANSAS CITY, Respondent, v. Rodney Gordon LANE, Appellant.
    No. 24138.
    Kansas City Court of Appeals. Missouri.
    June 7, 1965.

      Compton & Brown, Roy W. Brown, Kansas City, for appellant.
    Herbert C. Hoffman, City Counselor, and George L. DeBitetto, Asst. City Counselor, Kansas City, for respondent.
   CROSS, Presiding Judge.

Defendant was tried and convicted in the municipal court of Kansas City, Missouri, on the charge of stealing personal property, to wit, merchandise belonging to Milgram’s store, in violation of Section 39.750 of plaintiff city’s revised ordinances of 1956. Upon appeal to the circuit court, trial to the court without a jury resulted in a judgment of conviction assessing a fine against defendant in the sum of fifteen dollars. Defendant now appeals to this court.

Plaintiff city’s brief incorporates a motion to dismiss the appeal for the reason that defendant’s brief does not comply with Civil Rule 83.05, V.A.M.R., in that the “Points and Authorities” and “Argument” therein set out amount to no more than mere abstract statements of law and contain no citations of authority. Although movant has some cause for complaint, rather than impose the drastic penalty of dismissal we elect to determine the appeal on its merits. To that end we proceed to state the essential facts shown by the evidence.

On the occasion of the alleged offense, defendant and a “friend” named Ward appeared at a certain Milgram store, picked up a grocery cart and proceeded to move about the store for approximately one-half hour to forty-five minutes. Ward was carrying an overcoat that had been slit “where he could drop this merchandise in, and he had it sewed at the bottom * * *. It was slit at the sleeve, enabling this merchandise to be taken out”. Store employees observed Ward select some items of merchandise and place them in the cart and also pick up several articles and put them in the overcoat he was carrying. The police were notified and had arrived at the store when Ward and defendant reached the check-out stand. Both men were apprehended and searched by the police. Merchandise belonging to the store was found inside the overcoat carried by Ward. None was found on defendant’s person.

Three store employees testified on plaintiff’s behalf. Assistant manager Joe Vig-liaturo was present in the store when “these two gentlemen came in”. He testified that he saw Ward pick up a tube of tooth paste and a bar of soap and start to put them in his pocket, but “some reason or other he didn’t do it”. His suspicions aroused, Vigliaturo directed two store employees, Donald Peterson and Lawrence Lombardo, to watch defendant and Ward from an observation post with “two-way windows you can see out but you cannot see back up”.

Donald Peterson testified that he saw defendant and Ward go up and down each aisle. He stated, “When they had picked up several items and had them in the buggy, they went over to which is the south aisle in the store and Mr. Lane held his back to his friend while his friend opened his coat and put articles in. Several times he had tried this before, holding his back to his friend, and a customer would walk in the aisle and they would stop what they were doing”.

Lawrence Lombardo testified as follows: “I was up on the catwalk looking down on them, and he (defendant) was standing in front of his friend, watching the back of the store. His friend had merchandise in his hands putting it in his coat pocket and he was watching behind him and every time a customer would come by, he would warn his friend that somebody was coming by and he would pretend like he was shopping. They was in one aisle IS or 20 minutes just looking at different merchandise. And I observed this all over the store”. The witness did not observe defendant taking anything or secreting any merchandise about his person. “All he did was walk around with his friend”.

On his own behalf defendant testified that he wandered around the store with Ward “like most people will do”, intending to buy a pack of cigarettes on the way out. He denied seeing Ward take or secrete any goods and testified he had no idea Ward had such intention, but admitted that when they were arrested Ward had some articles on his person that belonged to Milgram’s.

The text of ordinance Section 39.750 is as follows: “STEALING OR CARRYING AWAY PROPERTY OF ANOTHER. Any person who shall steal, take or carry away any money or personal property or effects of another shall be deemed guilty of a misdemeanor”.

In defendant’s first appeal assignment he undertakes to establish the proposition that Section 39.750 applies only to a person who, as the principal and moving actor, commits an act of theft defined therein, and that an accessory to the theft is not within the purview of the ordinance and can not be convicted under its terms. This theory is based on the suggested premise that the city has no ordinance making it an offense “to assist, abet or aid another in the violation of a city ordinance”. Therefore, argues defendant, since the entire evidence conclusively shows that the theft of Mil-gram’s merchandise was accomplished by the physical acts of his “friend”, and that defendant “did not secret (e), pick up or carry away — any property belonging to Mil-gram Store”, the trial court was mistaken in its belief that defendant could be convicted under the ordinance as an accessory to the theft, and was without authority to render the judgment of conviction.

There is no merit in the foregoing. Since the distinction between principal and accessory is maintained only as to felonies, all who participate in misdemeanors, if guilty and punishable at all, are principals and chargeable as such. 22 C.J.S. Criminal Law § 81b, p. 241; 14 Am.Jur., Criminal Law, Sec. 105.838. This rule is consistently followed by Missouri courts and is restated in State v. Muchnick, Mo.App., 334 S.W.2d 386, as follows: “All who participate in the commission of a misdemeanor are principals. There are no accessories in misdemeanors, either before or after the fact, and all persons concerned therein are to be treated as principals (citing authorities)”. And, “By analogy to the rule in misdemeanor cases, all who participate either directly or accessarily in the violation of a municipal ordinance may be held as principals, * * * ”. 22 C.J.S. Criminal Law § 81b, p. 242. Also see 62 C.J.S. Municipal Corporations § 326, p. 675, which contains the following statement: “The persons liable for the violation of a municipal ordinance are those persons who fairly come within its provisions. As a general rule, all persons participating in the breach of a municipal ordinance are guilty as principals”. We necessarily rule that defendant is subject to conviction under Section 39.750 as a principal if it has been established by the evidence that he participated in the offense by aiding or abetting in its commission or acting as an accessory thereto.

Defendant’s remaining point is: “That the City wholly failed to prove a violation of the city ordinance in that they failed to prove that the defendant did steal, take and carry away any property belonging to the Milgram Store”. The point and supporting argument are essentially repetitive of the assignment we have discussed, and do not define the issue which remains for our determination — namely, whether defendant participated in any manner in the commission of the misdemeanor to the extent that he is subject to conviction as a principal.

“Aiding or abetting, in the sense that those words are used in criminal law, contemplate conduct calculated to incite, encourage or assist in the perpetration of a crime. These words comprehend all assistance rendered by acts or words of encouragement, incitement or support in the criminal act and involve some participation, either before or at the time the criminal act is committed. It implies some conduct of an affirmative nature”. State v. Muchnick, 334 S.W.2d 386, citing 22 C.J.S. Criminal Law § 88(2) a, p. 261.

Presence of the accused at the commission of a crime is evidence to be considered in determining whether he was guilty of aiding and abetting, but in order to convict an accused for aiding and abetting another in the commission of a crime something more than mere presence must he shown. State v. Castaldi, Mo.Sup., 386 S.W.2d 392. In this connection, evidence fairly showing any form of affirmative participation in a crime is sufficient to support a conviction. State v. Ramsey, Mo.Sup., 368 S.W.2d 413. And, as Judge Eager pointed out in the last cited case, the term “aid and abet” is well defined in Mays v. United States, (C.A.8), 261 F.2d 662, at loc. cit. 664, where the court said: “ * * * In order to aid and abet another to commit a crime it is necessary that a defendant ‘in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.’ L. Hand, J., in United States v. Peoni, 2 Cir., 100 F.2d 401, 402. And [Nye & Nissen v. United States], at page 620 of 336 U.S., at page 770 of 69 S.Ct. [93 L.Ed. 919], the Supreme Court states: * * Aiding and abetting has a broader application. It makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy. * * * > »

To demonstrate that the foregoing principles are applicable to the instant case which we must regard as a civil action, City of Webster Groves v. Quick, Mo., 319 S.W.2d 543, although it is founded upon an act complained of which in itself constitutes a misdemeanor defined by criminal statute, and is triable in the circuit court under the rules of criminal procedure, Kansas City v. Martin, Mo.App., 369 S.W.2d 602, we direct attention to the following holding of the Supreme Court in a case involving civil trespass, to wit, McMannus v. Lee, 43 Mo. 206 (frequently cited by the Supreme Court and reaffirmed in State v. Ramsey, supra): “The law is well laid down that any person who is present at the commission of a trespass, encouraging or exciting the same by words, gestures, looks, or signs, or who in any way or by any means countenances or approves the same, is in law deemed to be an aider and abettor and liable as a principal; and proof that a person is present at the commission of a trespass, without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same”.

It is axiomatic that in determining whether the evidence is sufficient to support a judgment every case must naturally stand upon its own facts. State v. Ramsey, supra. Our review of the record before us, conducted with due regard for all rules recognized as applicable in testing the sufficiency of evidence to support a criminal conviction, discloses facts and circumstances which warrant the fair and reasonable inference that defendant was engaged in concerted action with Ward as an aider and abettor in the perpetration of the offense charged against him. From the testimony of plaintiff’s witnesses Peterson and Lombardo, when considered together with all other circumstances shown, the trial court could properly find beyond a reasonable doubt that defendant was consciously acting as a “shield” to hide Ward’s pilferage from view and as a “lookout” to warn him of approaching persons. This finding is sufficient to support the judgment which convicts defendant as a principal in the offense charged.

Finding no error in the record before us, we affirm the judgment.

All concur.