text:
    C. T. CARTER, Appellant-Respondent, v. MATTHEY LAUNDRY & DRY CLEANING COMPANY, a Corporation, Mabro Investment Company, a Corporation, and National Laundry, Inc., a Corporation, Appellants-Respondents.
    No. 48432.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Nov. 13, 1961.

      August W. Jaudes, A. Robert Belscher, St. Louis, for appellant Carter.
    Flynn, Parker & Badaracco, Norman C. Parker, St. Louis, for respondents.
   STORCKMAN, Judge.

This is an action in two counts for damages claimed to have been sustained by the plaintiff, C. T. Carter, as the result of an alleged breach of a written contract entered into between him and the defendant, Matthey Laundry & Dry Cleaning Company in connection with the liquidation of National Laundry Company, a corporation. The plaintiff alleged that certain assets were liquidated in a manner violative of his contract and that he was thereby denied remuneration to which he was entitled.

Count 1 of plaintiff’s second amended petition involved the disposition of the real estate and plant equipment and was directed against Matthey Laundry & Dry Cleaning Company and Mabro Investment Company, both Missouri corporations. On this count the jury found in favor of the plaintiff and against both defendants in the sum of $20,000. The defendants filed separate motions for judgment in accordance with their motions for directed verdicts or, in the alternative, for a new trial. The defendants’ motions for judgment were overruled, but their separate motions for a new trial on Count 1 were sustained on the ground that the verdict was against the weight of the evidence. The defendants have appealed from the overruling of their motions for judgment as to Count 1. The plaintiff has appealed from the order sustaining the defendants’ motions for a new trial.

Count 3 involved “the customer accounts of the National Laundry Company and the good will attached thereto” and sought a judgment for $21,951.50 against Matthey Laundry & Dry Cleaning Company and National Laundry, Inc., also a Missouri corporation. The jury found in favor of the defendants on this count. The plaintiff filed his motion for a new trial as to Count 3 which motion was overruled and he appealed.

Other counts of the second amended petition have gone out of the case. A previous appeal in this litigation was before this court in Carter v. Matthey Laundry & Dry Cleaning Co., Mo., 330 S.W.2d 771. In the present appeal the plaintiff contends that the court erred in granting the defendants a new trial on Count 1 on the ground that the verdict was against the weight of the evidence because the plaintiff had been granted a new trial on the same ground as a result of the first trial; and that as to Count 3 the court erreJl in admitting incompetent evidence offered by the defendants. The defendants’ appellate contentions are that their motions for judgment should have been sustained as to Count 1 because the plaintiff’s evidence was insufficient to justify the submission of Count 1 to the jury; that the court was justified in granting the defendants’ motions for new trial for the reason specified and others; and that the evidence of which the plaintiff complains as to Count 3 was properly admitted. The defendant Matthey Laundry & Dry Cleaning Company will sometimes be referred to as Matthey Company or Mat-they; the Mabro Investment Company as Mabro; and the National Laundry Company as National Company or National.

Since 1936 plaintiff Carter had been president of National Laundry Company which owned and operated its plant at Laclede and Channing Streets in St. Louis. For a number of years family laundry business had been on the decline and National accounts were mostly commercial, consisting of hotels and motels. The defendant Matthey Company was also engaged in the laundry business in St. Louis. L. H. Matthey, Jr., was its president and L. H. Matthey, Sr., had also been connected with the Company but had retired at the time of the trial.

On November 3, 19S4, an ordinance of the City of St. Louis found the Mill Creek 'Valley area in St. Louis to be blighted and that redevelopment of the area was necessary. There had been newspaper publicity of this proposal in September 1954. The ordinance provided that the study and planning for acquisition, clearance, improvement and sale for redevelopment and rehabilitation of the land in said blighted area should be undertaken by Land Clearance for Redevelopment Authority of the City of St. Louis. The blighted area included the location of the National plant and real estate. Sometime in the fall of 1954, Mr. Matthey, Jr. contacted the plaintiff and after numerous conferences submitted alternate written proposals. One was for the purchase of the shares of capital stock and the other was for the purchase of the business customers and trucks of National Laundry Company. Both of these proposals were rejected, but a third, submitted later, was accepted. This proposal was made in writing by Matthey Company to the plaintiff, C. T. Carter, and Percy W. Neslage as representatives of the shareholders of National. The proposal offered to purchase all of the outstanding stock of National Company, consisting of 3,000 shares at a price of $40 per share and was conditioned upon the acceptance by the holders of at least 80 per cent of the outstanding stock and the deposit of their shares. The purchase of the shares deposited was to be closed within 10 days after acceptance by the required number of shareholders and 50 per cent of the purchase price was to be paid on the date of closing and the balance on or before one year from the date of closing with interest at 5 per cent on the unpaid balance. The proposal called for the resignation of all directors and officers of National Laundry Company except the plaintiff and that he would be employed at not less than his present salary for a period of at least three months. This written offer to purchase was dated March 14, 1955. The offer was accepted by holders of approximately 91 per cent of the capital stock of National which included 158 shares owned by the plaintiff. The sale was closed and the first installment of $20 per share, which was 50 per cent of the purchase price, was paid on March 23, 1955.

Under date of March 22, 1955, the Mat-they Company entered into a contract with the plaintiff individually which was introduced in evidence as plaintiff’s Exhibit 3. This is the contract upon which plaintiff’s claim is based. The first two paragraphs of this agreement provide that the plaintiff would be employed for a period of three months from the closing date of the purchase agreement at the rate of $230 per week, which period might be extended for an additional three months by mutual agreement. The third paragraph restricted the plaintiff from engaging in the laundry business in a specific area for a period of three years. The consideration for this covenant was keyed into the liquidation of the National Laundry Company with certain minimum guarantees as provided in paragraph numbered 4, which is as follows : “In consideration of the agreement of Carter contained in paragraph 3 Matthey shall pay to Carter a sum computed as follows: Upon liquidation of the National Laundry Company in the event the proceeds of such liquidation exceed $115,000 Carter shall be paid an amount equal to the portion of such excess distributable to Matthey by virtue of its ownership of stock in National Laundry Company which shall be paid to Carter in three equal annual installments, the first payment to be made upon receipt by Matthey of its final liquidating distribution of stock in the National Laundry Company, and the remaining payments to be made on the same date of each year thereafter for two years.

“In the event that the liquidation of National Laundry Company is completed in less than six (6) months, the minimum amount to be paid to Carter hereunder shall be Three Thousand Dollars ($3,000.-00), irrespective of the actual amount of the proceeds of the liquidation, and in the event the liquidation is not completed until after six (6) months, the minimum amount to be paid to Carter shall be Five Hundred Dollars ($500), the first one-third (1/3) of which shall be payable May 1st, 1956, if the liquidation is not completed prior to that time.

“In the event that any real estate of National should be purchased by Matthey, the price to be paid for the same shall be determined by mutual agreement between Matthey and Carter, or if they are unable to agree the price shall be determined by an appraiser selected- by mutual agreement between Carter and Matthey.”

After Matthey Company acquired the controlling stock, the board of directors of National Laundry Company on March 23, 1955, adopted a resolution recommending to the shareholders that the Company be dissolved. On April 5, 1955, the shareholders adopted a resolution providing for the dissolution of the corporation, the liquidation of all of its assets and their distribution to the shareholders and authorizing the directors and officers to complete the liquidation and to declare liquidating dividends. On the same day the directors met and implemented the plan of liquidation by authorizing the officers to proceed with the liquidation “as rapidly as possible” and to sell the assets including the real estate. The officers were L. H. Matthey, Jr., the plaintiff, and Edward G. Fohrell. The liquidation was completed within a year after approval of the plan by the shareholders and directors. The total amount realized was $114,720, which was less that the $115,000 required to provide the plaintiff with compensation in excess of the minimum guaranteed by his contract. The items of which the plaintiff complains are the real estate and plant equipment and the customer accounts and good will. The real estate was not disposed of within the first six months of the liquidation period and the plaintiff was accordingly paid the sum of $500 in accordance with his contract. The real estate was first placed with Stifel Realty Company and no offers of purchase were received. Thereafter the property was listed with the Henry R. Weisels Realty Company and ari offer of $35,000 for the real estate and equipment was received which was rejected.

Near the end of one year after liquidation was authorized, Mr. Matthey, Sr., on behalf of a syndicate, which was later organized as Mabro Investment Company, offered $41,500 for the real estate and equipment. This offer was- accepted by the board of directors of National over the protest of the plaintiff and Mr. Neslage who were board members. Mabro Investment Company later sold the equipment for $5,000, of which sale the plaintiff makes no complaint. So it may be considered for the purpose of this case that Mabro acquired the real estate for a price of $36,500. The depositing shareholders were paid the purchase price of $40 per share. The shareholders, including Matthey as purchaser and the nine per cent who did not sell, received their liquidating dividends in complete cancellation of their stock. Further details of the evidence will be considered in connection with the questions presented.

The plaintiff contends the trial court erred in refusing to grant him a new trial on Count 3 because of the admission in evidence of two documents. They are defendants’ Exhibit G, which is plaintiff’s original petition, and plaintiff’s Exhibit 2, the stock purchase agreement.

The original petition complained only of the disposition of the real estate and equipment of National. The subject matter of the original petition was incorporated as Count 1 in an amended petition and other counts were added, among which was Count 3, wherein the plaintiff for the first time complained of the disposition of the customer accounts and good will of National. Johnson v. Flex-O-Lite Mfg. Corp., Mo., 314 S.W.2d 75, 79 [4], and the other authorities cited by the plaintiff are concerned with live pleadings in which there were multiple pleas. These authorities generally hold that in such a case one of the multiple pleas may not be used as an admission upon another issue in the same case. Since we are here concerned with an abandoned pleading, the authorities cited ar not decisive.

An abandoned pleading is admissible in evidence against the party in whose behalf it was originally filed if the pleading contains admissions or statements of fact against the interest of such party. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 899 [14], The original petition tended to show that plaintiff’s claim with regard to customer accounts and good will had not occurred to him until sometime after the filing of his original petition and was an afterthought. For this reason it was properly admitted in evidence. Walser v. Wear, 141 Mo. 443, 42 S.W. 928, 933 [4]; Robinson Steel Construction Co. v. White, Mo.App., 305 S.W. 2d 58, 61 [4], We need not pass upon the defendants’ further contention that plaintiff’s objection to the exhibit was insufficient and that its admission was in fact invited.

Plaintiff’s Exhibit 2, the stock purchase agreement, was first injected into the trial by the plaintiff. It was marked as an exhibit at his request and was identified by him during his direct examination. The stock purchase agreement was addressed to and signed by the plaintiff, C. T. Carter, and Percy W. Neslage, as agents for the shareholders. Attached to the exhibit was a condensed balance sheet and an income and expense account of National as of December 31, 1954. The plaintiff testified-with reference to some of the exhibit’s terms and that pursuant to it Matthey purchased 2,732 out of the total of 3,000 shares. On cross-examination he testified without objection that the balance sheet and income and expense account attached to plaintiff’s Exhibit 2 was prepared under his supervision and reflected the book value of the various assets listed and that the total assets shown on the balance sheet was $94,354.41. The plaintiff had previously offered and read in evidence Matthey’s letter of November 10, 1954, containing the alternate proposals which had been rejected by the shareholders. The minutes of the meeting of the board of directors of National, held February 17, 1955, were put in evidence without objection. The minutes show the terms of Matthey’s offer which was accepted and that the board approved the offer. The plaintiff pleaded the purchase of the stock by Matthey.

When Exhibit 2 was offered by the defendants, the plaintiff objected “because the stock proposal agreement is not an issue here at this trial”. The court called attention to the fact that the plaintiff had offered the exhibit in evidence- for some purpose and counsel for the plaintiff stated that his purpose was to show there was a purchase of the stock by Matthey. The court then overruled the objection stating that the exhibit was in evidence for all purposes. The plaintiff cites a statement from the previous appeal to the effect that the purchase of the shares of stock by Matthey was a separate and distinct transaction from the contract between Carter and Matthey. 330 S.W.2d 771, 780. The admissibility of the stock purchase agreement, however, was not an'issue in the first trial. The transcript of the record of the previous appeal shows that the stock purchase agreement was identified and read in evidence without objection. The question of its admissibility was not decided.

The plaintiff is in no position to complain of the admission of the exhibit in evidence. Since the plaintiff had identified and used in evidence portions of the stock purchase agreement, the defendants were entitled to introduce the entire exhibit. Dorn v. St. Louis Public Service Co., Mo. App., 250 S.W.2d 859, 867 [12]; Jones v. Atlanta Life Ins. Co., Mo.App., 247 S.W.2d 314, 316 [1]; Miller v. Smith, Mo.App., 275 S.W. 769, 772 [9]; Willgues v. Pennsylvania R. Co., 318 Mo. 28, 298 S.W. 817, 824 [9]; State ex rel. State Highway Commission v. Howald, Mo., 315 S.W.2d 786, 791 [12]. The exhibit constituted relevant evidence and the court did not err in admitting it. Having disposed of all of plaintiff’s contentions as to Count 3, we hold that the court did not err in refusing to grant him a new trial on that count.

As to Count 1 the plaintiff contends that the trial court erred in granting th® defendants a new trial on the ground that the verdict was against the weight of the evidence. The defendants’ position is that their motions for judgment should have been given or, in the alternative, that they were entitled to a new trial for the reason given as well as others set out in their motions for new trial. The plaintiff urges that since the defendants were granted a new trial they are entitled to have reviewed only the specifications set forth in their motions for new trial, citing Schneider v. St. Louis Public Service Co., Mo., 238 S.W.2d 350, 355. In the respect noted, the Schneider case has been reviewed and overruled. See Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73, 77 [11], and Wilhelm v. Haemmerle, Mo., 262 S.W.2d 609, 611 [2], The question of the submissibility of plaintiff’s claim under Count 1 has been preserved and is properly before us since it may be urged in opposition to plaintiff’s appeal even though ■the defendants did not file an appellants’ brief. Schmittzehe v. City of Cape Girardeau, Mo., 327 S.W.2d 918, 920 [1]; Hart v. Midkiff, Mo., 321 S.W.2d 500, 505 [4]; Page v. Hamilton, Mo., 329 S.W.2d 758, 761 [1]. We will first take up the defendants’ contention that the plaintiff did not make a submissible case on Count 1 of his amended petition.

The defendants contend there was no breach of contract in selling the real estate at the time it was sold because the liquidation of the National Company was an integral part of the contract and that the plaintiff agreed that such liquidation would be completed within a 12-month period. All of the evidence is to the effect that the liquidation was intended to be completed within a period of one year in order to secure the tax advantages of § 337, I.R.C., 26 U.S.C.A. § 337. This section provides in substance that, if a corporation adopts a plan of complete liquidation and within the 12-month period beginning on the date •of the adoption of such plan, all of the assets of the corporation are distributed in complete liquidation, then no gain or loss shall be recognized to such corporation from the sale or exchange by it of property within such 12-month period. The consequences •of failing to complete the liquidation of National within the 12-month period are not fully developed in the evidence and are not important to our present consideration.

The controlling fact is that the plaintiff’s testamentary admissions establish that he agreed that the liquidation would be •completed within the 12-month period. The plaintiff testified that he had extensive ■discussions with Mr. Matthey, Jr., concerning the tax consequences of liquidating within one year; that it was a part of the agreement that the National Company be liquidated within one year; that the “original deal was made on the assumption that the laundry would be liquidated in one year because of Federal taxes”; that it was the desire of Matthey that National Company be liquidated in one year because of federal taxes and that the plaintiff “agreed with their desire”; that the plan to liquidate was a part of the agreement he had with Mat-they; that “I went along on that one year agreement”; and that he agreed that the National Laundry Company had to be liquidated in one year because of tax purposes. We have examined the transcript of the previous appeal and find no evidence that the plaintiff agreed to the liquidation of the property within the 12-month period following the adoption of the resolution to liquidate. This distinguishes the present appeal from the previous one.

The plaintiff’s contract itself makes no provision that the period of liquidation should be more or less than one year. It simply provides in what manner the plaintiff shall be paid upon liquidation of the National Company with a larger minimum guarantee if the liquidation is completed in less than six months. Since there was no agreement to the contrary, it was in order for the stockholders and directors of National to undertake the completion of the liquidation in the 12-month period in order, to secure the benefits of § 337 I.R.C. In the present case it is apparent from the plaintiff’s own testimony that he agreed to a liquidation of all of the assets of National including the real estate within the 12-month period. In this state of the record the plaintiff cannot be heard to complain that National sold the real estate within the 12-month period.

In fact it is not the theory of the plaintiff’s submission that there was any violation of his agreement in selling the real estate within the 12-month period. Plaintiff’s verdict-directing instruction on Count 1 in substance requires the jury to find that the real estate constituted an asset of National “which was to be liquidated or whose fair market value was to be considered in determining the amount of the proceeds in liquidation under plaintiff’s contract”; that the defendant Matthey caused the real estate to be sold at “less than the fair market value of said real estate at the time of sale" (Italics added); and that the price was fixed by Matthey “solely for the purpose of keeping the total proceeds of the liquidation of the assets of the National Laundry Company below the sum of $115,-000.00”; that Mabro through its officers, directors and stockholders did plan, conspire and cooperate with Matthey to cause the real estate to be sold at a price below its fair market value “for the purpose of depriving the plaintiff from receiving any amount which would be due him under the contract if the said real estate were sold at its fair market value”. The plaintiff’s submission seems to be solely upon the theory that the real estate was sold for less than “its fair market value” at the time it was sold and at a price determined for the sole purpose of preventing the plaintiff from receiving any additional compensation.

The next inquiry is whether there was any evidence of breach of the contract in selling the real estate for $36,500. There is no evidence that “fair market value” was to be the standard as to the real estate or any other asset in fixing the plaintiff’s remuneration under the contract. It is not clear how this concept got into the case. None of the contracts so provided and it seems to be entirely out of place in circumstances where the real estate was to be sold under a plan for liquidation within a 12-month period and where the future of the property was beclouded by a threat of condemnation for the redevelopment of the blighted area. The trial court recognized this and in his memorandum explaining his ruling on the aftertrial motions filed as to Count 1 stated: “It is true that a witness for plaintiff said the property was worth $70,000 and another said $62,000, but these figures were based on the willing seller and willing buyer theory which does not apply here since because of the threat of condemnation there were no ‘willing buyers’ or buyers of any kind except speculators at a heavy discount.

“The subsequent sale to the Land Clearance Authority for $63,300 cannot be taken as a standard of value at the time of the sale to Mabro since the evidence shows clearly that no such amount could have been obtained at that time. It should also be remembered that had the property not been sold within one year, tax liabilities would have accrued, as to the amount of which there is no evidence. * * * Defendants should not be penalized for failing to sell at an unobtainable price.”

The term “fair market value” means the price which property will bring when it is offered for sale by an owner who is willing but under no compulsion to sell and is bought by a buyer who is willing or desires to purchase but is not compelled to do so. Metropolitan St. Ry. Co. v. Walsh, 197 Mo. 392, 94 S.W. 860, 861. In this case the National Company was in liquidation and was under the compulsion of selling within the 12-month period provided by § 337 if the tax advantages provided by that section were to be obtained. The property was also under the threat of condemnation which, if concluded, would result in a forced sale. The situation was fraught with many uncertainties such as whether the condemnation proceedings would be carried to a conclusion or perhaps be abandoned prior to the taking, how long the owner would have to hold, maintain and pay taxes on the property, and what amount he would be able to obtain by negotiation or by trial. This made the market a speculative one which was recognized by all concerned. Even the plaintiff’s expert witnesses testified that under the circumstances a speculator would be the only one that could be expected to buy the real estate. We find nothing in the evidence which justified a belief that the property could be sold for its fair market value under these circumstances.

The plaintiff was under no illusion as to the hazards and difficulties of liquidating the Company and disposing of its property in these circumstances. At the meeting of the directors of National on February 17, 1955, the board agreed to recommend Mat-they’s proposal to buy at $40 per share. The minutes of the meeting which were signed by the plaintiff, as president of National, record that the plaintiff told the directors that he could see no future for National under the present operating setup and he described the alternatives which the board could take to protect the interest of the Company’s stockholders as follows (defendants’ Exhibit D) :

“1 — If they felt that they were willing to chance the condemnation of the Company’s property by the slum clearance authorities within a two year period, they would have to consider making a small profit, losing a small or large amount of money due to unforeseen conditions and expenses, and if they were lucky, we might salvage more than $40 per share for the Company’s stock, but they naturally would be gambling on what might or might not happen.
“2. — The Company could liquidate all property and Goodwill for the Company’s Stockholders, but again they would be gambling as to what might be received by the Company’s Stockholders in the event this step was taken.
“3. — The Board could accept Mr. Mat-they’s offer of $40 per share, and present same to the Stockholders for their approval. He mentioned to the Board that on this basis no gamble would be made as to what a Stockholder would receive per share, and from everything he could ascertain this would be the cleanest deal for all concerned.”

The plaintiff was one of the officers in charge of the liquidation of the assets of National inchtding the real estate. He assisted in the liquidation until March 23, 1956, except for the time he was in Florida during the latter part of 1955. He listed the real estate with a sales agency immediately after the adoption of the resolution to liquidate but received no offers. Other inquiries were made, including discussions with the Land Clearance representatives. Late in the year the real estate was listed with another agency and an offer of $35,-000 was received which was rejected by the board of directors. Near the end of the 12-month period of liquidation, L. H. Matthey, Sr., L. H. Matthey, Jr., and Robert B. Brooks formed a syndicate which was later incorporated as Mabro and offered $41,500 for the real estate and equipment which offer was the equivalent of $36,500 for the real estate. When the plaintiff objected, the property was offered to him for the same price but he refused to buy it because he said he was not interested although he had the funds to make the purchase. He was also given the opportunity to join with the other three in purchasing the property at that price but declined to do so. The plaintiff testified he used his best efforts but was unable to find a purchaser during the one-year period following the purchase by Matthey of the National stock. There is no evidence in the record that a price in excess of $36,500 could be obtained for the real estate on the market that existed during the 12-month period in question. The fact that Matthey offered to approve a sale to the plaintiff at that price is some evidence that the purchase price was a fair one under the circumstances. But it is sufficient to say that there was no evidence that a better price could or should have been obtained at the time of the sale or during the 12-month period of liquidation. The plaintiff calls attention to the testimony of L. H. Matthey, Jr., that he did not want to go over the $115,000 because anything above that figure would go to the plaintiff. If there was evidence that the real estate could or should have brought more on the existing market, this statement would have some significance, but the defendants cannot be held liable for not voluntarily paying more than they were legally obligated to pay.

The defendants assert that the sale of the real estate and equipment was in good faith and there is nothing in the record to indicate otherwise. The plaintiff was advised in January 1956 of the intention of the syndicate to purchase and he was invited to take all or any part of the ownership but chose not to do so. In the final analysis there was no concealment or subterfuge either as to the parties who were purchasing or the amount they were paying. There was no evidence that anyone but the three individual stockholders of Mabro shared in whatever profit was made on the sale to Land Clearance.

There was some rather indefinite testimony by the plaintiff that he requested the selection of an appraiser by mutual agreement with Matthey in accordance with the contract provision on the theory that the real estate was being purchased by the Matthey Company. We need not go into the merits of this contention, however, because it was not submitted by the plaintiff’s instruction and therefore must be deemed to be abandoned as an issue in the case. Page v. Hamilton, Mo., 329 S.W.2d 758, 762 [5].

Our conclusion is that the evidence was not sufficient to make a submissible case on Count 1 and that the defendants’ motions for judgment should have been sustained. It is therefore unnecessary to consider other questions presented. Since the case has been twice tried, the parties have had ample opportunity to develop their legal theories and adduce all material evidence.

Accordingly the judgment on Count 1 is reversed and the cause remanded with directions to enter judgment in favor of both defendants on Count 1; the judgment on Count 3 is affirmed.

All concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Anthony MANGIARACINA, Alias Tony Mag, Appellant.
    No. 48342.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1961.
    Rehearing Denied Nov. 13, 1961.
    Roger J. Barbieri, Kansas City, for appellant.

      Thomas F. Eagleton, Atty. Gen., Ben Ely, Jr., Asst. Atty. Gen., Jefferson City, Missouri, for respondent.
   BARRETT, Commissioner.

Anthony Mangiaracina, also known as Tony Mag, has been found guilty of stealing an automobile and his punishment has been fixed at a fine of $1,000 and one year’s imprisonment in the county jail. Sections 560.156, 560.161 RSMo 1959, V.A.M.S. Upon this appeal his principal claim is that he is entitled to a judgment of acquittal for the asserted reason that the state’s evidence is insufficient to sustain the charge in that there was no proof that he “rendered any assistance either before or at the time” in the actual theft of the automobile. In this connection he claims that at most the state’s proof is of assistance to the principal thief after the crime of stealing had been completed and, therefore, he should have been tried as an accessory after the fact (Section 556.180 RSMo 1959, V.A. M.S.), not as a principal or as an accessory before the fact. Section 556.170 RSMo 1959, V.A.M.S. If not entitled to a judgment of acquittal, the appellant contends that he is entitled to a new trial in that the court erred in permitting the admitted thief, Allen, to testify to his actions and conversations with the defendant when there was no proof that he was aware of the thief’s felonious purpose or intent or if he did know there was no proof that he “rendered any assistance” to the thief. He also claims that it was error to permit Allen to narrate events and conversations which he says were not in furtherance of a conspiracy and all of which were after the consummation of the theft.

The uncontradicted evidence was that the appellant, Mangiaracina, operated a used car business on Prospect Avenue called T & M Auto Sales. Walter Edward Allen was a mechanic and on a part-time basis was the appellant’s employee. On April 30, 1959, Mag and Allen left the used car lot in Mag’s automobile and drove out on Main Street hill, Allen got out of the automobile and Mag drove away. Allen immediately walked over to a parked 1956 four-door Chevrolet sedan, “put a jumper on the ignition system and started it.” The doors on the Chevrolet were locked and Allen “broke the glass out” of a front window and drove the automobile directly to the garage on Mag’s used car lot. Allen first took the switch out of the Chevrolet and gave it to Mag. He then proceeded to grind off the numbers on the motor and as he was putting another series of numbers on the motor, numbers furnished by Mag, Mag returned with the switch with a key in it. Mag then furnished Allen with a Kansas motor vehicle title to a 1956 Chevrolet bearing the serial number corresponding with the number Allen had placed on the motor. In a day or so Allen, accompanied by a boy who loafed around the used car lot, drove the Chevrolet to Springfield where it was sold at auction, to a purchaser in Pittsburg, Kansas. Finally the Chevrolet was identified by its correct, concealed motor or serial number and recovered by its owner, Davis, who had parked it on the Main Street hill early on the morning of the 29th.

Allen, in testifying to the briefly noted circumstances o.f the theft, said that he did not remember whether he and the appellant had a conversation as to the purpose of “your going out that morning.” He said that he “got out of Tony’s car and he (Tony) left” and that he (Allen) “did that,” that is stole the automobile. When asked whether someone requested him to take it he said, “Well, I can’t answer that either, I don’t remember.” When asked whether Tony had said anything to him about stealing an automobile as they rode out to the Main Street hill he again replied, “I don’t remember.” While Allen was a state’s witness and unequivocally testified to the indicated facts, he was as evasive as the circumstances permitted. He too was charged with stealing the Chevrolet and his case was pending. In any event, the appellant seizes upon these particular bits of testimony and the fact that he was not present when Allen actually took the automobile and .drove it away and says, “There is no evidence which connects this defendant with the crime in being' an actual participant or perpetrator.” He urges that there is no proof that he had “procured, counseled or commanded” Allen to steal the automobile and since his only proved “assistance” was after the completed theft it is argued that he could only be an accessory after the fact, not a principal or an accessory before the fact. Thus the appellant undertakes to establish that the case falls within the rule best illustrated by State v. Mathis, Mo.App., 129 S.W.2d 20, in which it was held that a defendant’s mere presence in a store plus her refusal to interfere with, or concealing the fact, and her knowledge and approbation that her companion stole a bracelet and a hat would not sustain her conviction of petit larceny.

But even the noted circumstances are subject to other inferences than those the appellant would have drawn. It is true that Mag was not present when Allen attached the “jumper,” broke the glass, and actually drove the automobile away. There is no direct testimony that he procured or counseled Allen to steal the Chevrolet (Compare: State v. Erlbacher, Mo., 270 S.W. 277) but the force of the circumstances permit the inference of a “community of unlawful purpose.” 22 C.J.S. Criminal Law § 87, p. 255. The inference is permissible from the circumstances that he drove Allen to the place of the theft and the fact that Allen immediately returned to his garage and there began, with Mag’s assistance, to alter and conceal the true identity of the automobile and thus complete its theft. This is not to enlarge the offense of stealing, “to appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner, either by taking, obtaining, using, transferring, concealing or retaining possession of his property.” Section 560.156(2) RSMo 1959, V.A.M.S. But this automobile was not stolen for the thief’s personal use or to dismantle for the sale of its parts, obviously it was stolen for the purpose of realizing its utmost commercial value by a sale at auction on a public market in which a paper title and serial or motor numbers now play a necessary and integral part.

Mag furnished Allen with a serial number, he returned the switch with a key and it was no longer necessary to use a jumper, and his garage was a place of storage in which to make alterations of the automobile. It is a fair inference from the evidence that Mag obtained the Kansas title together with its serial numbers from the files of Duren N. Sleyster, a dealer in salvage automobiles. A day or so after the sale at Springfield Mag called the salvage dealer and told him that the police were checking on a car he had bought from the dealer “and the title was messed up on it.” He did not tell the dealer that it was he who had caused the police to make the investigation and evidently he was not aware of the fact that the dealer had listed the salvaged car title with the police. When Allen returned from Springfield Mag asked for the check in payment of the automobile but “something was wrong with it, the man said he would send the money in whenever they got it cleared up.” Upon receiving this information Mag called the police and reported that he had bought an automobile from Althena M. Cummings (the name on the Kansas certificate of title to the salvage automobile), that the serial number was “okay” but when the car was sold at auction to a Pittsburg dealer some question arose because there was no serial number on the doorpost and payment of the dealer’s check was withheld. He requested the policeman to investigate and report to the Springfield auction “so the car would go through and he would get his money back.” Instead, the officer checked the police salvage files and it was from the serial number furnished by Mag that he traced the title properly belonging to a salvaged 1956 Chevrolet and not to Davis’ automobile.

In all these circumstances a conspiracy between Allen and the appellant to steal the automobile is reasonably inferable and in the particulars noted he was an accessory before the fact (State v. Tripp, Mo., 303 S.W.2d 627), if not an actual participant (52 C.J.S. Larceny § 55(b), p. 846), even though he was not physically present at the initial act of conversion and asportation. Compare State v. Bresse, 326 Mo. 885, 33 S.W.2d 919. Since there was evidence from which a conspiracy to commit the offense of stealing could be found, the conspiracy is deemed to have continued until the proceeds were disposed of or divided. 2 Wharton, Criminal Evidence, Sec. 431, p. 205. “The commission of the crime does not always terminate and mark the accomplishment of the conspiracy which may continue for various purposes — securing and dividing the proceeds, concealment, effecting escape, and matters of that kind.” State v. Costello, Mo., 252 S.W. 727, 729.

This view of the case disposes, in effect, of the appellant’s claim that the court erred in admitting Allen’s testimony in which he detailed what the appellant did and said in consummation of the theft. As indicated, a conspiracy was fairly inferable from all the circumstances, the jury could reasonably find that the appellant and Allen acted in concert with a common purpose and intent. State v. Price, 361 Mo. 1034, 238 S.W.2d 397; State v. Craft, 299 Mo. 332, 253 S.W. 224. In part, the appellant’s conduct and statements, as testified to by Allen, permitted the inference of complicity and so had the force of admissions (McCormick, Evidence, Sec. 113, p. 234; 22A C.J.S. Criminal Law § 730, p. 1024), and the acts and declarations of the conspirators in furtherance of the conspiracy were admissible, substantive evidence. 2 Wharton, Criminal Evidence, Sec. 416, p. 178; State v. Harrison, Mo., 285 S.W. 83, 86.

In addition to the points briefed and argued by appellant’s counsel, the court has examined “the record before it” and there are no errors with respect to any matter not required to be raised in a motion for a new trial. Sup.Ct. Rule 28.02, V.A.M.R. Whether as an accessory before the fact or as an actual participant and a principal (Section 556.170 RSMo 1959, V.A.M.S.), the indictment appropriately charged the appellant with the offense of stealing. Section 560.156 RSMo 1959, V.A.M.S. The verdict is in proper form and responsive to the charge and the punishment within that prescribed by law. Section 560.161 RSMo 1959, V.A.M.S. There was allocution and the appellant was present throughout the trial. Sup.Ct. Rules 27.08, 27.09. Accordingly, the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All concur.


author: EAGER, Judge. LEEDY, Judge

text:
    Mayma CROUCH, Plaintiff, v. Dale TOURTELOT, Administrator of the Estate of J. S. Brown, deceased, Defendant-Appellant, Virgil H. Crouch, Defendant-Respondent.
    No. 47971.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1961.

      William H. Burden, Joplin, for appellant.
    Robert E. Seiler, Joplin, Seiler, Blanchard & Van Fleet, Joplin, of counsel, for respondent.
   EAGER, Judge.

This is an appeal from the dismissal of a third-party petition, the order being designated as a final judgment. See Rule 82.06, V.A.M.R. The case arises from an automobile collision occurring in Jasper County on September 25, 1955. We find it necessary to digest the pleadings generally. The original plaintiff, Mayma Crouch, sued the Administrator of J. S. Brown as sole defendant and alleged: that she was a passenger in her husband’s car proceeding northerly on Highway 66; that it had collided with another car proceeding ahead of theirs in the same direction, after which her husband had stopped and alighted, leaving his car on the pavement, headed east; that decedent Brown, driving southerly on the highway collided violently with the car in which plaintiff was still seated, due to negligence on his part as alleged in six specified grounds; these were: excessive speed, failing to maintain a vigilant lookout, failure to keep his car properly under control, failure to keep his car as near as practicable to the right hand edge of the pavement, failure to stop, slacken or change course, and running into collision with plaintiff’s husband’s car when it was stopped in plain view. Plaintiff further alleged that she suffered serious and permanent injuries which “were directly and proximately caused by the negligenf and carelessness” of Brown. She prayed damages of $25,000. Defendant filed an answer in which he denied the substantive allegations of the petition and alleged contributory negligence on plaintiff’s part and sole negligence on the part of her husband; he also alleged the existence of a joint undertaking and the applicability of the doctrine of imputed negligence.

Thereafter the defendant filed by leave of court his third-party petition (and amended petition) against Virgil H. Crouch, plaintiff’s husband, under § 507.080, RSMo 1949, V.A.M.S. The record does not show notice to plaintiff but no objection is made on that score. Therein defendant referred to plaintiff’s amended petition and attached a copy thereof as “Exhibit A”; this made plaintiff’s amended petition “for all purposes” a part of the third-party petition. Rule 55.14. Hereafter, for clarity, we shall sometimes refer to the third-party defendant as “Crouch,” and to the third-party plaintiff as “Brown” (though actually the latter is Brown’s Administrator) ; the parties have occasionally confused the technical designations, and we merely seek to simplify the continual references. The third-party plaintiff alleged (omitting un-controverted allegations) : that Crouch had collided with the rear of another car proceeding northeasterly on Highway 66 ahead of his; that this occurred after lights were required; that Crouch’s right front headlight was damaged so that it would not burn, but that his car was “operable”; that Crouch alighted but left his car standing in the “left hand lane” of the pavement at the intersection of a black-topped road and just south of a curve in Highway 66; that Brown, several minutes later, came around this curve, driving southwesterly and, “blinded by the lights from approaching traffic,” collided with the front end of Crouch’s car in which plaintiff was still seated; that the collision was “directly and proximately caused and occasioned solely” by the negligence of Crouch in that: he created a “dangerous condition on the highway” by leaving his car unattended in the west lane of the traveled portion of the highway for several minutes, without proper lighting or other warning, and thus obstructed free passage thereon; he knew or should have known of the heavy travel and that lights on other cars might blind approaching motorists or that the one light remaining on his car might mislead approaching drivers; and he negligently failed to drive his car onto the shoulder or onto a black-topped road located nearby. Brown further alleged: that by reason of the collision with the stopped vehicle “and the mere fact of said collision while plaintiff was seated therein the allegations of said collision in plaintiff’s petition stated a cause of action against third-party plaintiff’s decedent and compelled the defendant and third-party plaintiff to defend said action” despite the fact that as between Brown and Crouch the collision was caused solely by the negligence of Crouch; that Brown’s liability, if any, was “passive, secondary or constructive and is based on the mere fact that collision occurred * * * and is not based upon any direct, primary or active negligence” of Brown, who had the right to assume that the highway would be free of “obstructions or dangerous conditions”; that Brown was therefore entitled to be indemnified by Crouch for any and all liability or damages that he might sustain in defending plaintiff’s action, plus his expenses, and he prayed judgment over against Crouch therefor.

Crouch, as the third-party defendant, filed his motion to dismiss the third-party petition (and amended petition) for the reasons: that it failed to state a claim upon which relief could be granted; that plaintiff could not legally amend her petition so as to accept Crouch as a defendant because of the husband-wife relationship; that defendant should not be permitted to hold the husband indirectly responsible on a liability for which he, the husband, would not be directly responsible to plaintiff; that no relationship was alleged between Crouch and Brown which would create a liability on the latter for Crouch’s acts; that no facts were alleged to show that Brown’s liability was derivative or constructive; that on defendant’s own allegations Brown and Crouch if the latter was liable at all, were joint tort-feasors, and that the only basis of any liability of the defendant to the plaintiff would be negligence on Brown’s part as alleged in the original petition.

As already indicated, the court sustained the motion to dismiss the third-party petition and entered a final judgment of dismissal. While it is immaterial to the present issues, we note that Brown apparently died sometime later from injuries sustained in the collision.

The parties have raised no question of our jurisdiction, but that question was suggested at the oral argument. More specifically, counsel for appellant was asked whether the amount claimed in the third-party petition did not rest upon a contingency, namely, the uncertain amount which plaintiff might eventually recover from the original defendant, if anything. We have concluded that we do- have jurisdiction of the appeal. It is true, of course, that the jurisdiction of this court must affirmatively appear from the record, without speculation or contingency. Missouri Managerial Corp. v. Pasqualino, Mo.App., 323 S.W.2d 244, 247; Cotton v. Iowa Mutual Liability Insurance Co., 363 Mo. 400, 251 S.W.2d 246, 248; Kansas City v. National Engineering & Mfg. Co., Mo., 265 S.W.2d 384, 385; National Surety Corp. v. Burger’s Estate, Mo., 183 S.W.2d 93, 95; In re Jackson’s Will, Mo.App., 291 S.W.2d 214, 218. But we have also held in many cases that where plaintiff has been finally defeated on the pleadings or by adverse judgment, the amount which he has bona fide claimed in his petition fixes our jurisdiction as the “amount in dispute” under Section 3, Article 5, Constitution of Missouri, 1945, V.A.M.S. Burroughs v. Lasswell, 336 Mo. 463, 79 S.W.2d 107; Dille v. St. Luke’s Hospital, 355 Mo. 436, 196 S.W.2d 615; Nydegger v. Mason, Mo., 315 S.W.2d 816; Page v. Laclede Gas Light Co., Mo., 245 S.W.2d 23; Burke v. Pappas, 316 Mo. 1235, 293 S.W. 142; Harris v. Bates, 364 Mo. 1023, 270 S.W.2d 763. In fact this rule has become so general that in recent years there has been little discussion in the opinions which have applied it. This court does reserve the right to examine the entire record in order to ascertain if a jurisdictional amount has been improperly or fictitiously alleged. Strothkamp v. St. John’s Community Bank, Inc., Mo., 329 S. W.2d 718; Daly v. Schaefer, Mo.App., 331 S.W.2d 150; Buddon Realty Co. v. Wallace, Mo., 188 S.W.2d 28, 29. There are no facts of record here to detract from the jurisdictional averments of the pleadings and the plaintiff has specifically alleged very substantial injuries. This case differs from the ordinary one in that the appellant is a third-party plaintiff, and the original plaintiff’s claim has not been adjudicated adversely. However, the third-party plaintiff’s claim has been so adjudicated and, absent any fact of record which indicates the contrary, we hold that the amount claimed in good faith by plaintiff from defendant, for which the defendant here seeks full indemnity, fixes the amount in dispute for the purpose of our jurisdiction.

Since the case of State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, it has been universally recognized that when a third-party petition is filed the acceptance of the third party as a defendant is optional with the plaintiff; if he accepts that party he should amend his petition, so indicating. See also: State ex rel. and to Use of Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705. There has been no such acceptance here, and Crouch says that the original plaintiff could not proceed against him because of the husband-wife relationship, citing Brawner v. Brawner, Mo., 327 S.W.2d 808. He also urges that the court may not require the doing indirectly of what plaintiff may not do directly. In our view of the case we shall not reach that question.

This third-party claim is not one for contribution, but for indemnity in toto. Contribution is not permitted between tort-feasors in Missouri except after a joint judgment. State ex rel. McClure v. Dinwiddie, supra; Farrell v. Kingshighway Bridge Co., Mo.App., 117 S.W.2d 693; Section 537.060. The theory of the third-party claim here is to exclude the operation of this principle by laying all negligence at the door of Crouch, — for leaving his car on the highway, in Brown’s path, without sufficient lights or other warning, — and to recover full indemnity. Brown thus seeks to disclaim all negligence by alleging that he had just come around a curve, that he was blinded by approaching lights, and that he had the right to assume that the road was clear. Ordinarily the existence of negligence on the part of one who drives into a stopped vehicle on the highway is a question of fact, unless the circumstances establish his negligence as a matter of law. Thompson v. Byers Transportation Co., 362 Mo. 42, 239 S.W.2d 498; Johnson v. Lee Way Motor Freight, Inc., Mo., 261 S.W.2d 95. And before proceeding further we note again that Brown attached a copy of the amended petition of plaintiff to his amended third-party petition as an exhibit; the exhibit thus became a part of his third-party petition for all purposes. Section 509.130. The plaintiff alleged six grounds of specific primary negligence on the part of Brown, including excessive speed, failure to maintain a vigilant lookout, failure to keep his car under control, failure to keep his car as near as practicable to the right hand edge, failure to stop, slacken or change course, and running into a stopped car in plain view; she further alleged that Brown’s negligent acts were the direct and proximate cause of her injuries. We may not ignore that petition.

There is considerable divergence and some confusion in the authorities, generally, as to the circumstances under which indemnity may be required for a liability arising in tort. We shall confine our discussion largely to the Missouri cases. In McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W. 2d 788, 793, the question was considered at some length. A painter had been injured by coming into contact with a highly charged electric wire, while painting the structural roof supports of plaintiff’s plant. He was an employee of the defendant-independent contractor; the latter had been shown the hazards in detail, and had agreed to warn its employees accordingly and to take all necessary precautions. The injured man collected compensation under the Missouri Workmen’s Compensation Act, Section 287.010 et seq. RSMo 1949, V.A.M.S., and then sued McDonnell; after judgment, McDonnell settled with him for $32,100, and proceeded against the contractor on a third-party petition. It was held that this petition stated a cause of action. Inherent in that situation was, (a) the owner-independent contractor relationship, and (b) the contractor’s express agreement to protect against this hazard. The court recognized the necessity of a duty owed by the in-demnitor to the indemnitee; it held that the duty there arose by virtue of the express agreement of the contractor to protect against the known hazards and that he had negligently failed to perform. It was further recognized that ordinarily the right to indemnity arises in connection with such relationships as principal and agent, municipal corporation and property owner, and in other instances where there is a secondary liability on the part of the one seeking indemnity, his liability being one “ ‘solely by imputation of law because of his relation to the actual wrongdoer, * * (citing Prosser, 250, § 46).

In State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, a street car passenger was injured when the street car collided with an automobile. The passenger sued the Public Service Company, the operator of the street car and the motorist, Siegel. The company filed a cross-claim against Siegel on the theory that it was only liable to plaintiff for “inferred” negligence under the res ipsa doctrine, that Sie-gel was charged with knowledge of its liability on that theory, and that, as between the defendants, all actual causative negligence was that of Siegel. The company further alleged that its liability, if any, was derivative or constructive and was based upon the carrier-passenger relationship; it prayed for a judgment over against Siegel for all liability which might be adjudged against it in the action. The trial court overruled Siegel’s motion to dismiss the cross-claim and proceedings in prohibition were instituted. The Court of Appeals held that on the pleadings no liability was stated as between the defendants; therein it considered both the petition and the cross-claim. The court said in part, loe. cit. 502: “The area in which a party held liable for negligence may secure indemnity from another party also negligent is closely circumscribed. It embraces a group of special situations and relationships where it has seemed reasonable and desirable to impose the ultimate responsibility on the person found to have played the active or primary role in the negligent situation in favor of one also held liable, but whose part in the event is passive or secondary. In such situations the parties are said not to be in pari delicto.” The court then recited instances of such liability, as in suits between a landlord and tenant, a city and a property owner, and a principal and his agent, in which the latter (in each case) had by his own act created the dangerous condition or caused the harm. The court held that the Public Service Company was charged with active and concurrent negligence, although pleaded as a res ipsa case, which negligence was alleged to have been a proximate cause of the collision; and that if the company was held liable, its liability would result because of its own negligence and not by reason of any negligence of Siegel’s. It concluded that under these facts no right to indemnity existed. On motion for rehearing the court said (quoting) at loe. cit. 507: “ ‘Without multiplying instances, it is clear that the right of a person vicariously or secondarily liable for a tort to recover from one primarily liable has been universally recognized. But the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. In the case of concurrent or joint tort-feasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other.’ ” The court declined to base its decision upon “a consideration of the disproportionate duties owed by one tortfeasor to the other, where both have breached substantially equal duties owed the injured person * *

In State ex rel. and to Use of Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705, the allegations of the third-party petition of a defendant motorist were held not to state a claim against plaintiff’s host motorist. It is significant to note that there, although the defendant-third party plaintiff alleged that the third-party defendant’s negligence was the direct or sole cause of the collision, the court held that these allegations were mere conclusions and valueless.

Our courts have, in a long line of cases, permitted the recovery of indemnity by those to whom negligence is imputed as a purely secondary liability, or where the legal negligence of the indemnitee rests solely in his failure to discover and correct a dangerous condition caused solely by the one sought to be charged. Thus: where a city is held liable for the act of a property owner or of one maintaining an obstruction in a street (City of Springfield v. Clement et al., 205 Mo.App. 114, 225 S.W. 120, reversed on other grounds, 296 Mo. 150, 246 S.W. 175; City of Independence v. Missouri Pacific Ry. Co., 86 Mo.App. 585; Kilroy v. City of St. Louis et al., 242 Mo. 79, 145 S.W. 769; City of Columbia v. Malo, Mo.App., 217 S.W. 625; Kinloch Telephone Co. v. St. Louis, 268 Mo. 485, 188 S.W. 182); where a building owner is held liable because of the negligence of his tenant in obstructing a passageway, in violation of the terms of his lease (Barb v. Farmers Insurance Exchange, Mo., 281 S.W.2d 297); where the tort of an agent is imputed to his principal (State ex rel. Algiere v. Russell, 359 Mo. 800, 223 S.W. 2d 481; Elzea v. Hammack, 241 Mo.App. 1070, 244 S.W.2d 594). In City of Springfield v. Clement et al., supra, the court said (225 S.W. loC. cit. 122): “The right of the city to recover in such cases from the wrongdoer by way of indemnity is confined to those cases where the city is not in pari delicto with the defendant, and it must be shown that the city’s liability does not arise in zvhole or in part from its own independent negligence. The city’s liability must arise solely from its constructive negligence in failing to remedy or prevent the consequences of the primary negligence of the person from whom indemnity is sought.” (Italics ours.) This would appear to state a rule much more restrictive than a mere comparison of differing degrees of negligence.

Suggestions of a theory of “pari delicto,” and occasional discussions of “active” and “passive” negligence appear in those cases, and others (Elzea v. Hammack, 241 Mo. App. 1070, 244 S.W.2d 594; Joshmer v. Fred Weber Contractors, Inc., Mo.App., 294 S.W.2d 576); but it will be found in at least the vast majority of our cases, when the facts are accurately evaluated, that indemnity has been allowed “in favor of one who is held responsible solely by imputation of law because of his relation to the actual wrongdoer * * * ” (McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788, 793) or in favor of one who has only a secondary duty as contrasted with that of the original and primary wrongdoer. Thus, on their facts, those cases involve more than, a mere comparison of differing degrees of negligence by nonrelated parties.

The most recent case on the subject is Kansas City Southern Ry. Co. et al. v. Payway Feed Mills, Inc., Mo., Division One, 338 S.W.2d 1. That was an independent suit for indemnity, arising from the following facts: plaintiffs maintained switch tracks adjacent to defendant’s warehouse or mill; immediately adjacent to these tracks, on a concrete pavement, defendant maintained heavy movable docks for its convenience in loading and unloading the cars; on two previous occasions defendant had been warned that one of its docks was so close to a switch track as to be dangerous to trainmen, and on each occasion it was moved by defendant; on this particular occasion, a switch foreman was injured while riding the side of a switching car because one of these docks had again been placed much too close to the track. The injury occurred at about 4:15 a. m., and at a place which was at least partially dark; the docks were maintained and used exclusively by the defendant and the plaintiffs maintained a regular switching service for the defendant at that point. The railroads, for - all practical purposes admitting liability under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., settled with the injured employee for $15,000, and thereafter recovered full indemnity from the defendant. The case was tried to a jury; the defendant urged on appeal that a verdict should have been directed for it. This contention was denied and the judgment was affirmed. The court quoted with approval from an Illinois case (Gulf, Mobile & Ohio Railroad Co. v. Arthur Dixon Transfer Co., 343 Ill.App. 148, 98 N.E.2d 783, cited also by plaintiff here) contrasting “affirmative, active, primary” negligence with “technical or passive” negligence and permitting a recovery of indemnity by one guilty only of the latter. The court reviewed the line of Missouri cases which we have already discussed. It held, after quoting also from Restatement, Restitution, § 95, that: (1) defendant had actively created a dangerous situation by permitting its dock to be located in a dangerous position, after notice; and (2) that the railroads, while liable under the Federal Employers’ Liability Act, were chargeable only with passive negligence in failing to discover the condition and correct it, which did not bar their recovery of indemnity. The jury had found against a claim of contributory negligence on the part of the injured employee and the couxt held, and properly so, that he was not guilty of such negligence as a matter of law (which would have been imputed to plaintiffs). The court further held that no negligence was shown in the movement of the cars, which left plaintiffs chargeable only with a failure to discover.

It seems clear to us that in the Payway case there existed a contract or quasi contract relationship between the parties which might well be held to support a claim of indemnity. In that view, the opinion does not constitute a departure from the underlying theory of our prior cases. And we note again that the court there specifically held that plaintiffs were only chargeable with negligence in failing to discover and correct the dangerous situation.

In our case Brown is charged with primary negligence, by six different specifications, all of which involve independent action on his part, and not merely with a failure to discover and correct the condition created by the stopped car. True, he was charged with failing to discover it in time, but he was also charged with affirmative negligence in running into it violently, by reason of excessive speed, failure to stop, slacken or swerve, and in failing to have his car under control and keep to the right. This cannot be “passive” negligence; and this situation bears no similarity to one where Brown would, because of some pre-existing relationship, merely be under a duty to discover and correct a dangerous condition caused solely by Crouch and not joined in by Brown. Brown’s only duty here, under our statutes, was to exercise the highest degree of care in driving, so as not to run into Crouch’s car. Brown is thus charged with active negligence; if he is found, upon trial, to have been guilty of no negligence, then the whole matter ends there and no indemnity is needed. We do not believe that indemnity should be required as between joint tort-feasors involved in a two-car automobile collision on a highway because of supposedly different types or degrees of negligence. See again: State ex rel. Siegel v. McLaughlin, Mo. App., 315 S.W.2d 499, 507-508, where the court said (quoting) : “ ‘In the case of concurrent or joint tortfeasors, having no legal relation to one another, each of them owing the same duty to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities everywhere that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one, even though one may have been very much more negligent than the other.’ ” See also Creech v. Riss & Co., Mo., 285 S.W.2d 554. Our statutes make no distinction whatever in the degree of care imposed upon operators of motor vehicles. We find no validity in Brown’s attempted distinction on the ground that here both vehicles were not “moving.” Siegel, supra, 315 S.W.2d loc. cit. 504. His vehicle was moving, and his negligence was active. The asserted difference in our facts is not determinative when we analyze the applicable tests and principles. Brown’s conclusory allegation that by the “mere fact of said collision” the allegations of plaintiff’s petition were made to state a cause of action against him, is wholly insubstantial in view of the facts alleged in his own petition and in plaintiff’s petition. He is not charged with negligence by reason of the mere fact of a collision. And the question of “sole cause,” also alleged by him, is a matter of defense, available to him in any event without the presence of the allegedly negligent third party. See, generally, Hall v. Clark, Mo., 298 S.W.2d 344, 348 [3-6],

We do not find the Payway case controlling here, nor are we persuaded to impose liability by reason of two additional cases cited from other jurisdictions. Terminal R. R. Ass’n of St. Louis v. United States, (8 Cir.), 182 F.2d 149; Parrish v. DeRemer, 117 Colo. 256, 187 P.2d 597. These merely illustrate further the confusion attending any attempt to formulate a fixed rule. What was said on this subject in the Terminal Railroad case, supra, appears to be dicta, for liability was denied on a wholly different ground. The difficulty of formulating a rule of indemnity to govern all cases is illustrated and well discussed in McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., Mo., 323 S.W.2d 788. As said there, loc. cit. 793 : “All of these tests seem to be attempts to apply equitable principles and none of them satisfactorily explains all cases.” We have seen sundry tests suggested or mentioned (at least as partial guides) in the various cited cases, including: the “pari delicto” rule; the contrasting of “active” and “passive” negligence; whether one party has created a dangerous condition in which the other has not joined; and the rule establishing liability in favor of one who has been held responsible solely by imputation of law because of his relation to the actual wrongdoer. In our case it really makes no difference which of these rules we follow. We hold that Brown: (1) was in pari delicto with Crouch; (2) that if Crouch created a dangerous condition, Brown joined in his act by making the danger effective as to plaintiff; (3) that Brown’s negligence was active; and (4) that Brown may not be held responsible in plaintiff’s action solely by imputation of law but, if at all, only by reason of his own personal, active, primary negligence. No “primary responsibility” for this tort rests upon Crouch. See Elzea v. Hammack, 241 Mo.App. 1070, 244 S.W.2d 594, 604. As stated by this court in State ex rel. and to Use of Merino v. Rose, 362 Mo. 181, 240 S.W.2d 705, at loe. cit. 708-709: “We are here considering a tort action only, not one of derivative liability, wherein the liability of the third-party defendant to the third-party plaintiff might possibly arise by legal relation or by antecedent contract between them.” Brown’s argument that Crouch created a dangerous condition on the highway and thereby became liable to him ignores his own participation as shown by all the essential factual allegations, when conclusions are disregarded.

The motion to dismiss the amended third-party petition was properly sustained and the judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion by EAGER, J., has been adopted as opinion of the court en banc.

HYDE, C. J., and STORCKMAN and DALTON, JJ., concur.

LEEDY, J., dissents in separate opinion.

WESTHUES and HOLLINGS-WORTH, JJ., dissent and concur in opinion of LEEDY, J.

LEEDY, Judge

(dissenting).

Appellant, by his third-party petition (from the dismissal of which he appeals), sought indemnification against what was then, and is now, an indefinite and contingent liability, the amount of which is not only unknown, but presently incapable of being known, that is to say he sought to be indemnified for such damages, costs, etc., if any, as might be rendered in favor of the wife of the third-party defendant, Mayma, in her action against appellant. The only possible reference in the record to any sum within the monetary jurisdiction of this court is in the prayer of Mayma’s petition wherein she asks damages in the sum of $25,000. It is quite true that if that petition alleging $25,000 damages had been adjudged insufficient for failure to state a claim (or had judgment been rendered against her on the merits), then, for appellate jurisdictional purposes, the amount sought in her petition would be regarded as the “amount in dispute.” But if (as in the instance now at bar) Mayma’s petition had failed to pray judgment for a sum which could be definitely determined to be within the monetary jurisdiction of this court, then it inevitably and plainly follows that her appeal would not be cognizable in this court. So it is a non sequitur to say that the present appeal comes here because of the fact that the main case, in the circumstances first above hypothesized, would have come here. It seems to me it would be the other way around, i. e., that the present appeal should go to the Court of Appeals, just as Mayma’s appeal would have gone there in the absence of an allegation or showing that the amount claimed by her was in excess of $15,000 — not that perchance it might exceed that sum. That the amount claimed by Mayma in her own petition does not constitute the “amount in dispute” in appellant’s third-party petition against Mayma’s husband readily appears from the prayer of the latter which is strictly limited to a demand for “judgment against the third-party defendant for all sums of money that may be adjudged against him in favor of the plaintiff, together with the expense of defending this action and his costs.” (Italics ours.)

In any ^vent, the “amount in dispute” or the value of the relief sought can he no more than the amount which may be awarded against appellant in Mayma’s action, and the mere chance or possibility that such sum, if and when rendered, may exceed $15,000 is insufficient to give this court jurisdiction of the appeal. In this connection, there is a striking analogy to be found in Cotton v. Iowa Mut. Liability Ins. Co., 363 Mo. 400, 251 S.W.2d 246, 249, which the principal opinion cites approvingly. That was a declaratory judgment action to determine the insurance company’s liability under its $100,000 automobile liability policy in the event that judgment was entered against its insured in an action brought by the plaintiff (in the declaratory judgment action) for certain personal injuries sustained by him in an automobile accident which allegedly resulted through the insured’s negligence. The amount sued for in such personal injury action did not appear in the declaratory judgment action. In holding in the declaratory judgment action that this court was without jurisdiction, it was said, “The instant plaintiff may never recover a judgment or secure a settlement and, if not, he will acquire no right under the policy provisions. This is relevant to the rule that the mere chance of a judgment or settlement exceeding $7,500 [$15,000] does not establish appellate jurisdiction here.” It is familiar doctrine “that the appellate jurisdiction of this court, on the ground of the amount in dispute, attaches when, and only when, the record of the trial court affirmatively shows there is involved in the controversy, independent of all contingencies, an amount exceeding $7,500 [$15,000], exclusive of costs.” (Italics ours.) National Surety Corp. v. Burger’s Estate, Mo., 183 S.W.2d 93, 95. A mere chance that the amount in dispute may exceed $7,500 [$15,-000] does not give this court jurisdiction. Platies v. Theodorow Baking Co., 334 Mo. 508, 511, 66 S.W.2d 147, 148; Grant v. Bremen Bank & Trust Co., Mo., 108 S.W.2d 347, 348; Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149, 150.

I submit that it does not affirmatively appear from the record that, “independent-, of all contingencies,” the amount in dispute- or the monetary value of the relief sought is in excess of $15,000, as expressly required by the cases cited in the principal opinion to vest jurisdiction of this appeal in this court. I therefore dissent to the contrary holding of the principal opinion on the jurisdictional question.

      . Statutory references will be to this revision, as well as to the newly issued RSMo 1959.


author: COIL, Commissioner.

text:
    STATE of Missouri, Respondent, v. Raymond CLARY, Appellant.
    No. 48589.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1961.
    Motion for Rehearing or to Transfer to Court en Banc Denied Nov. 13, 1961.

      Russell D. Roberts, Kirksville, for appellant.
    Thomas F. Eagleton, Atty. Gen., J. Richard Roberts, Sp. Asst. Atty. Gen., for respondent.
   COIL, Commissioner.

Raymond Clary was convicted of the charge brought under the provisions of Section 559.210 RSMo 1959 and V.A.M.S., of unlawfully striking and kicking William Barnes in a manner likely to produce death or great bodily harm and thereby inflicting upon the said Barnes great bodily harm. His punishment was fixed by a jury at three years in the state pentitentiary.

Defendant has appealed from the ensuing judgment and contends first that there was insufficient evidence to sustain the jury’s verdict. The evidence from the state’s standpoint tended to show that William Barnes operated a business in Edina, Missouri. On May 6, 1960, he saw defendant and wife walking by his place of business. Defendant struck the window with his fist and uttered some profanity directed toward Barnes. Barnes left his store and asked defendant, who by then had proceeded about twenty-five feet past the front of the Barnes building, what he had said. Defendant stopped and asked whether Barnes had a certain gun in his possession and, upon being assured that he did not, walked to Barnes and without anything further, either language or movement on Barnes’ part, struck Barnes a couple of times and knocked him to the sidewalk and, while he lay there in an unconscious condition and “bleeding real bad,” kicked him in the side of the face and hit him twice with his fist. An ambulance was called and Barnes was taken to a hospital where he remained for nine days. Fie was in shock and suffered multiple lacerations about his head and a brain concussion. He had headaches and experienced dizziness and blackouts. He was unable to walk without becoming dizzy for some time. There was medical testimony that it was possible for a concussion of the skull to cause death.

Section 559.210 requires only that there shall be an unlawful wounding or the infliction of “great bodily harm in cases and under circumstances which would constitute murder or manslaughter if death had ensued. All that is necessary under this section is that there shall be an unlawful wounding or the infliction of great bodily harm in cases and under circumstances not excusable or justifiable.” State v. Janke, 238 Mo. 378, 141 S.W. 1136, 1138; State v. Browers, 356 Mo. 1195, 205 S.W.2d 721. There was evidence, heretofore set forth, from which the jury reasonably could have found that defendant inflicted great bodily harm upon Barnes under circumstances which would have constituted murder or manslaughter if death had ensued. State v. Webb, 266 Mo. 672, 182 S.W. 975.

Defendant contends that the information was insufficient. As we understand, the contention is that the information was defective because it did not contain an allegation to the effect that “had death ensued in this case, the circumstances were such that defendant would have been guilty of murder or manslaughter if death had ensued.” The information was in approved form and the suggested allegations were unnecessary. State v. Janke, supra; State v. Porter, Mo., 81 S.W.2d 316, 318; State v. Watson, 356 Mo. 590, 202 S.W.2d 784, 786 [2-4].

Defendant next contends that the trial court erred in overruling his motion for a continuance and abused its discretion in requiring defendant to go to trial without affording him and his counsel sufficient time to adequately prepare. The altercation giving rise to the information in this case occurred on May 6, I960. Defendant was arrested on May 11 and at that time saw and read the complaint which had been filed against him which we have ascertained was substantially identical with the information which was thereafter filed on June 2. On September 7 defendant appeared; apparently for arraignment, and, upon being informed that the defendant did not have a lawyer but intended to employ one, the court postponed arraignment until defendant had retained a lawyer and informed defendant that his trial was set for October 24. On the morning of Monday, October 24, the trial date, defendant appeared with his counsel and filed a motion for continuance which alleged in substance that he had procured counsel on the preceding Saturday at 4 p. m. in Adair County; that theretofore he had diligently attempted to secure counsel residing in Knox County but for reasons set forth in the motion had been unable to do so; that he had sought to employ counsel residing in Lewis County but was'unable to do so; that his present counsel had advised him that he could not properly represent him unless he had reasonable time in which to examine the charge, interview witnesses, and acquaint himself with the evidence and the applicable law; and defendant alleged further that if he were compelled to go to trial without benefit of counsel adequately prepared, his rights and freedom would be j eopardized. As ground 2 of his motion he alleged that no copy of the information had ever been served upon him and he had never seen or examined the charge in the case, and that his counsel had had no opportunity to obtain copies of the “papers in the case.” The trial court overruled the motion after argument, and defendant entered a plea of not guilty, unavailingly renewed his request for continuance, and proceeded to trial.

In the brief it is contended that the trial court’s action in overruling defendant’s motion for continuance deprived him of “rights guaranteed him by both the Constitution of Missouri and the Constitution of the United States, specifically the right to be informed of the nature and cause of the accusation, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel for his defense.”

For the reasons hereinafter noted, we are of the opinion that the trial court did not abuse its discretion in overruling defendant’s motion for a continuance. Defendant did not allege in his motion nor show in any manner that he had exercised diligence to obtain counsel reasonably soon after being advised of the trial date. Defendant had from September 7 to October 24, a period of forty-seven days. The reasonable inference from the record is, and there is no contention to the contrary, that defendant was free on bail during that entire, period. The allegations in the motion that defendant was unable to hire counsel in Knox and Lewis Counties constituted no excuse whatever for defendant’s failure to have retained counsel elsewhere or to have requested -the court to appoint counsel for him. Defendant’s counsel in oral argument stated that on some date prior to October 22 (counsel did not say how long prior), defendant had talked with him about the case and, upon being advised of the terms upon which counsel would accept employment, defendant left with the advice that as soon as he had. sold his beans he would return. Under the circumstances, defendant has wholly failed either to allege or demonstrate any reason for- having failed to obtain counsel in time for such counsel to have adequately prepared his defense.

The fact situation as disclosed by the motion and the argument in this case should be distinguished from that in those cases where a trial court has been held to have abused its discretion for refusal to afford a defendant a reasonable opportunity to prepare for trial. For example, where defendant’s attorney withdrew at a time close to the trial date and the trial court refused to give court-appointed attorneys a continuance to provide them a sufficient opportunity to study the case, as in State v. Jackson, 344 Mo. 1055, 130 S.W.2d 595, 596, or as in State v. Richardson, 329 Mo. 805, 46 S.W.2d 576. Here, the defendant, so far as we may know, did have adequate opportunity to prepare for trial. He failed to take advantage of the opportunity so afforded him without any shown reasonable cause.

Defendant’s further contention, that no copy of the information was ever served upon him and that his counsel had not seen or examined the charge and had not obtained a copy of the “papers in this case,” is likewise without merit. The record shows that defendant, on May 11, five days after the occurrence in question, saw and read the complaint which was identical with the subsequent information; and it was not alleged in the motion nor was there any showing that defendant ever sought a copy of the information or sought a copy of the “papers in this case”; and it was not alleged in the motion or shown that defendant was denied “compulsory process for obtaining witnesses.”

We are of the view that the trial court did not abuse its discretion in overruling defendant’s motion for continuance. See State v. Jones, Mo., 221 S.W.2d 137 [1, 2]; State v. Hefflin, 338 Mo. 236, 89 S.W.2d 938, 941 [6], 103 A.L.R. 1301; State v. Messino, 325 Mo. 743, 30 S.W.2d 750, 758 [8], 759 [9, 10].

. Defendant contends further that the state’s verdict-directing instruction was erroneous because it purported to cover the whole case and, defendant says, ignored the defense of self-defense which was supported by substantial evidence. There was evidence, considered from a standpoint favorable to defendant, which required the submission of self-defense. There was testimony which tended to show that Barnes, without provocation, struck the first blow which was sufficient to cause defendant’s eye to be black when he was arrested less than .two hours after the altercation; that defendant knew that Barnes owned a small gun which was very easy for Barnes to conceal in his pocket; and that Barnes had theretofore made a threat against defendant which had been communicated to him.

The trial court gave a self-defense instruction (6A) but, even so, if, as defendant contends, the state’s verdict-directing instruction 1 entirely ignored self-defense, then the error in the state’s instruction was not cured by the separate instruction on self-defense. State v. Winn, Mo., 324 S.W. 2d 637, 641 [2]; State v. Stubblefield, 239 Mo. 526, 144 S.W. 404, 406 [4]; State v. Helton, 234 Mo. 559, 137 S.W. 987, 988 [2].

State’s instruction 1 required in part that the jury find that defendant “did unlawfully and feloniously strike, beat, choke, strangle, and kick” Barnes. Instruction 2, immediately following, was in part: “The word ‘unlawfully’ as used in these instructions means without excuse or justification, ■and contrary to the law.” Instruction 6A, an unexceptional self-defense instruction, permitted the jury to find defendant not guilty if it found that his acts were “justifiable.” Considering instructions 1 and 2 together, and interpolating the information given the jury by instruction 2, the jury was required to find that Raymond Clary ■“did unlawfully [i. e., without excuse or justification] and feloniously strike, beat, ■choke, strangle, and kick” Barnes. It is apparent, therefore, that state’s instruction 1 did not entirely ignore the defense of self-defense but, on the contrary, required the jury to negative self-defense hy affirmatively finding that defendant heat and kicked Barnes without excuse or justification. That requirement, particularly in light of the fact that the ■court gave a separate instruction on self-defense, makes it reasonably certain that' the jury fully understood that it was to find defendant not guilty if his acts were justified as acts of self-defense as set forth in instruction 6A. It would have been preferable, nevertheless, for the state’s verdict-directing instruction to have more specifically negatived self-defense by language ■such as “and that such acts were not done -under circumstances which justify defendant’s actions as acts of self-defense as set forth in instruction 6A” or “If you find that ■defendant did [the alleged acts] without just cause or provocation.” But, under the circumstances of this case, i. e., in view of the particular language here used, considered in connection with the definition of “unlawfully” contained in instruction 2, and in view of the separate self-defense instruction, the court did not err in giving instruction 1.

Defendant relies upon the cases of State v. Gabriel, 301 Mo. 365, 256 S.W. 765, 767 [4], [5], and State v. Winn, supra, 324 S.W.2d 640-642. The court in the Gabriel case held that the verdict-directing instruction given there was reversibly erroneous because it ignored self-defense and was not cured by a separate instruction on self-defense; but the' court specifically pointed out that that instruction “required the finding of no fact which negatived the defense of self-defense, as in State v. Wicker * * *.” 256 S.W. 767 [5]. State v. Wicker, Mo., 222 S.W. 1014, 1016, held that the incorporation in an instruction of these words, “on ‘purpose and of malice aforethought,’ ” effectively required the jury to find facts negativing self-defense. State v. Winn, supra, also held that an instruction (No. 3) which entirely ignored self-defense was erroneous and was not cured by a separate instruction on self-defense. The court reviewed the relevant cases, including those which had criticized the rule of State v. Gabriel, supra, reaffirmed the doctrine of that case, and specifically refused to abandon that rule. But in' the Winn case (324 S.W.2d 642 [3] ), the court specifically approved instruction 2 which contained the words “on ‘purpose and of malice aforethought,’ ” holding that those words were sufficient to require the jury to find facts which negatived self-defense, particularly in view of the fact that another instruction had defined the word “malice” as “the con-, dition of mind which prompts one person to take the life of another or attempt to do so without just cause or justification, * * 324 S.W.2d 640 [1].

We have found no error in connection with those matters which we are required to review upon the record before us even though defendant has made no allegation of error with respect to them.

The judgment is affirmed.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.