author: WELBORN, Commissioner.

text:
    Ralph McCLELLAN et al., Appellants, v. KANSAS CITY, Missouri, a Municipal Corporation, et al., Respondents.
    No. 49816.
    Supreme Court of Missouri, En Banc.
    June 8, 1964.

      Warren S. Earhart, Kansas City, for appellants.
    Herbert C. Hoffman, City Counselor, Kansas City, M. E. Benson, L. B. Saunders, Asst. City Counselors, for respondents.
   WELBORN, Commissioner.

This is an action challenging the validity, under the federal and state constitutions, of an ordinance of the City of Kansas City, requiring television and radio servicemen to procure a license.

Some time prior to July, 1960, the Council of Kansas City enacted an ordinance on the subject This ordinance was held unconstitutional by the Jackson County Circuit Court. No appeal was taken from that judgment. Instead, a new ordinance on the subject, No. 25262, was enacted, on July 22, 1960, with an emergency clause, making it effective upon its passage. Ordinance No. 26148, enacted April 28, 1961, and effective ten days after its passage, amended No. 25262. This action attacks such ordinance, as amended.

The preamble of the July 22nd enactment recited:

“WHEREAS, the business of selling radio and television service contracts, and servicing and repairing radio and television receiving apparatus have become the subject of great abuse, with the result that the public has been and is being victimized by irresponsible sales methods, unethical and financially unstable service organizations and inferior installations, maintenance and repairs, * *

The ordinance made unlawful engaging in the business of servicing radio or television receiving apparatus, without a license. It provided for the issuance of licenses to service dealers and certified technicians. A service dealer was defined as a person engaged in the servicing of receiving equipment at an established business location. The holder of such a license was required to be either himself a certified technician or to have in his employment a certified technician in personal charge of all servicing of receiving equipment. A certified technician license issued to a person who passed the examination required of a craftsman for servicing radio or television receiving equipment, or both.

Applicants for certified technician licenses were required to pass an examination, conducted by a board of five members, appointed by the Mayor. The board was required to investigate the training, experience and qualifications and fitness of applicants for licenses. The board was required to prepare examinations which would be “practical in character and relate to those matters which fairly test the capacity of the applicant to engage in the business, within the scope of the license applied for.” Separate licenses were authorized for servicing both radio and television receiving equipment, servicing television equipment only and servicing radio equipment only. The board was required to conduct the examinations and to certify the names of persons who had passed examinations to the Commissioner of Revenue who issued the licenses upon payment of an annual license fee.

In the July 22nd ordinance, provision was made that any applicant for a technician license who, within 90 days after the effective date of the act, submitted a written statement, verified by two witnesses, showing that the applicant had engaged in servicing the type or types of equipment for the service of which he sought a license for two or more years prior to the ordinance’s effective date, should have 50% of the total possible points added to his examination rating. (We understand the “servicing” under this provision to be experience as a service technician, not as merely a service dealer.) The amendatory ordinance made similar provision as to applicants submitting such data within seven days of its effective date.

The board was authorized by the ordinance, as amended, to “make and promulgate administrative rules and regulations necessary to make the provisions of this ordinance effective.” The board was also authorized to “(d) Conduct hearings to determine whether or not a licensee has complied with the provisions of this ordinance and with the rules and regulations promulgated thereunder, and shall report its findings and recommendations to the commissioner of revenue as to suspension, revocation or renewal of the license.” The Commissioner of Revenue was authorized to “suspend or revoke any license issued hereunder in accordance with the provisions of this chapter, on a finding by the board of examiners that the applicant or licensee has violated or is violating any of the provisions of this ordinance, or any of the rules and regulations which may have been promulgated thereunder by the board of examiners, or has practiced fraud upon or misrepresentation to a customer in connection with the servicing of radio or television equipment, and may also refuse to renew a license and may suspend or revoke any license issued hereunder to any partnership, firm or corporation of which any partner, officer, director or manager has violated or is violating any of the provisions of this ordinance, or any of the rules and regulations which may have been promulgated thereunder by the board of examiners.”

The ordinance exempted “service and installation of (1) industrial machines, (2) mobile equipment, (3) any radio or television equipment used or furnished by a common carrier public utility” and “(4) * * any service or installation relative to which the State of Missouri or the United States Government assumes jurisdiction.”

Violation of the ordinance was made punishable by a fine of not more than $500, or imprisonment for a period of not to exceed 60 days, or by both such fine and imprisonment.

The April amendment, in addition to the “grandfather clause” above referred to, increased the board from a five to a seven-member body and terminated the appointment of the original board members 30 days after the effective date of the ordinance or upon the appointment of new members by the Mayor, whichever first occurred. Other changes are not here material.

This action was instituted as a class action by some thirty individuals engaged in the business affected by the ordinance. It was originally filed in the Jackson County Circuit Court on September 23, 1960. On February 2, 1961, a temporary injunction, restraining enforcement of the ordinance, issued. On August 10, 1961, an amended petition was filed, on which the case was tried. The defendants in the amended petition were the City of' Kansas City, the Mayor, the Commissioner of Revenue, the Chief of Police and the seven members of the examining board. The petition alleged that the ordinance as amended was unconstitutional for numerous reasons. We will consider below the objections which have been preserved in this court. After a 2-day hearing' at which the court heard evidence concerning the radio and television servicing business and the operation of the ordinance, the trial court, on July 9, 1962, entered its judgment declaring the ordinance valid. After their motion for a new trial had been overruled, the plaintiffs appealed to this court. Because of the constitutional questions involved, we have jurisdiction of the appeal.

As above mentioned, the evidence at the 2-day hearing on the cause related to the conduct of the business affected by the ordinance and the operation of the ordinance. We will not attempt to summarize the evidence, but will refer to such portions of it as might bear on the questions here presented. The trial court found that the evidence showed “that the repair and servicing of radio and television equipment requires technical knowledge and special skill * * * ” We accept that finding and deem it unnecessary to detail the evidence upon which it was based.

On this appeal, the appellants’ objections to the ordinance are based largely upon the due process and equal protection clauses of the federal (Amendment XIV) and state (Sections 2 and 10, Article I) constitutions and the “special law” prohibition of Section 40 of Article III of the V.A.M.S. Missouri Constitution.

They first assert that the ordinance violates the federal and state due process clauses by requiring licenses for the conduct of their business because the business of servicing television and radio receiving sets “does not intimately or directly affect the public health, safety, morals or general welfare.”

The Kansas City charter (Article I, Section 1) confers police power upon the City of Kansas City. This court has had numerous occasions to consider the nature and extent of such power. Marshall v. Kansas City, Mo.Sup., 355 S.W.2d 877; Ross v. Kansas City, Mo.Sup., 328 S.W.2d 610; ABC Liquidators, Inc. v. Kansas City, Mo.Sup., 322 S.W.2d 876. We are not here concerned with charter limitations upon the exercise of the power, but with constitutional limitations. Generally speaking, insofar as constitutional limitations based upon due process and equal protection are concerned, the municipal police power is equivalent to state power. 11 Am.Jur., Constitutional Law, Section 256, page 988. In ABC Liquidators, Inc. v. Kansas City, supra, this court stated: “The police power is such that any trade, calling, or occupation may be reasonably regulated in the interest of the public welfare if the general nature of the business is such that, unless regulated, many persons may be exposed to hazards and misfortunes against which the legislative body can properly protect them.” 322 S.W.2d 883. Protection against fraud is a valid object of regulation under the police power. ABC Liquidators, Inc. v. Kansas City, Mo.Sup., 322 S.W.2d 883(8). The preamble to the ordinance here in question recites that preservation of public safety and prevention of fraud upon the public are matters at which the ordinance is directed. The evidence showed that there is an element of danger involved in incompetent service, particularly of television receivers. Likewise, it showed that fraud upon the public is particularly possible in such business because of the complex nature of the machines involved and the general public ignorance of their operations. Such considerations are sufficient to evoke a proper exercise of the municipal police power. The fact that the business is regarded generally as a lawful and legal business does not preclude its reasonable regulation in the public interest under the police power. ABC Liquidators, Inc. v. Kansas City, Mo.Sup., 322 S.W.2d 882(7). Nor is it necessary, as appellants state, that the particular exercise affect directly the entire public. Such a limitation would practically nullify the police power. Readey v. St. Louis County Water Co., Mo.Sup., 352 S.W.2d 622, certainly is not authority for the proposition advanced by appellants that, because everyone in Kansas City does not own a radio or television receiver, this ordinance does not involve the public welfare. The fluoridation ordinance in that case was not upheld because everyone drinks water.

Appellants rely on cases from other jurisdictions in which courts have held unconstitutional, under due process and equal protection clauses, statutes or ordinances providing for the licensing of photographers upon examination by a licensing board. State v. Ballance (1949), 229 N.C. 764, 51 S.E.2d 731, 7 A.L.R.2d 407; Buehman v. Bechtel (1941), 57 Ariz. 363, 114 P.2d 227, 134 A.L.R. 1374; Sullivan v. DeCerb (1945), 156 Fla. 496, 23 So.2d 571; Bramley v. State (1939), 187 Ga. 826, 2 S.E. 2d 647; Territory v. Kraft (1935), 33 Hawaii 397; State v. Cromwell (1943), 72 N.D. 565, 9 N.W.2d 914; Wright v. Wiles (1938), 173 Tenn. 334, 117 S.W.2d 736, 116 A.L.R. 456; Moore v. Sutton (1946), 185 Va. 481, 39 S.E.2d 348; State v. Gleason, 128 Mont. 485, 277 P.2d 530. Appellants also rely on similar cases relating to the licensing of watchmakers. State ex rel. Whetsel v. Wood (1952), 207 Okl. 193, 248 P.2d 612, 34 A.L.R.2d 1321; State v. Morrow, 231 La. 572, 92 So.2d 70; Livesay v. Tennessee Board of Examiners, 204 Tenn. 500, 322 S.W.2d 209.

We have examined those cases and will not endeavor to distinguish them. Essentially, their philosophy is not in accord with the view of this court that determination of what considerations properly call for the exercise of the police power is primarily a legislative, not a judicial, question. Here, the Council found, and the evidence at the hearing supported such finding, that considerations of protection of the public safety and of the public from fraud necessitated the regulation undertaken. We do not substitute our opinion in such regard for that of the Council.

Appellants’ contention that protection of the public against fraud is not a proper subject for exercise of the municipal police power because of state statutes defining the criminal offense of obtaining money or property under false pretenses (Section 561.011, RSMo 1959, V.A.M.S. Section 561.371 cited by appellants has been repealed, Laws of Mo. 1955, page 505) and false advertising (Section 561.660) is without merit. ABC Liquidators, Inc. v. Kansas City, supra.

We conclude that, in the exercise, of its police power, the city could regulate the conduct of the business here involved and could employ licensing as a means for such regulation. Ross v. City of Kansas City, Mo.Sup., 328 S.W.2d 610. See People v. Murphy, 364 Mich. 363, 110 N.W.2d 805, 89 A.L.R.2d 1006, in which the Michigan Supreme Court upheld an ordinance of the City of Detroit, providing for licensing of television servicemen, as a police power measure.

Appellants assert that the “grandfather clause” of the ordinance, which gave, upon proper application, credit for 50% of the total examination grade for two years’ experience produced an unreasonable classification of persons regulated under the law. The board of examiners required a grade of 70% on the examination as evidence of qualification for a license. By answers of the board members to interrogatories, it appears that, as of November 22, 1961, the board had certified 481 persons as having passed the required examination for licensing. Of that number, 114 had taken advantage of the service credit. Appellants state: “Since the purpose, or one of the basic purposes, of the ordinance is to require servicemen to be competent, and Section 39.1084 excepts from the application of the ordinance certain servicemen merely because they have been servicing for two years, presumably incompetently because they could not demonstrate their competence in the manner designated by the ordinance, and licenses them to continue to service, the exemption is ‘not based on differences reasonably related to the purposes of the law,’ and ‘establishes unreasonable, arbitrary and discriminatory classifications in violation of the equal protection of the laws and due process provisions of the Federal and State Constitutions.’ Southwestern Bell Telephone Co. v. Morris, 345 S.W.2d 62, 65, Mo. en banc, [85 A.L.R.2d 1033].” The case cited by appellants is one in which exemptions from the state’s compensating use tax were held to have produced an unreasonable, arbitrary and discriminatory classification in violation of the equal protection and due process provisions of the federal and state constitutions. The ordinance here involved is in no manner comparable with the use tax statute.

The validity of “grandfather” clauses in licensing acts has been sustained against attacks on the grounds that such provisions result in unreasonable classification. State v. Hathaway, 115 Mo. 36, 21 S.W. 1081; Watson v. Maryland, 218 U.S. 173, 30 S.Ct. 644, 54 L.Ed. 987; see Annotation, 136 A.L.R. 207, 219. We perceive no constitutional objection to the method here employed of recognizing prior experience in the licensing process.

Appellants’ contention that the ordinance is invalid because it fails to authorize the licensing of all persons in business at the time that it became effective is without merit. The conditions under which licenses will be granted on the basis of prior experience is a matter primarily for legislative determination. Certainly Ross v. Kansas City, Mo.Sup., 328 S.W.2d 610, 1. c. 614, in speaking of the provisions of the “grandfather clause” of the ordinance there involved, did not hold, as appellants contend, that failure to exempt from licensing requirements persons engaged in the licensed occupation at the time the ordinance was enacted is a denial of due process of law.

Appellants suggest that the “grandfather” clause is arbitrary and unreasonable because of the brief period (7 days) permitted by the amendatory ordinance for taking advantage of its provisions. The original ordinance permitted a 90-day period for this purpose. The amendment was, in effect, merely a brief reopening of the period. Inasmuch as the amendment was not effective for ten days after its passage, there was, in effect, a 17-day period. We cannot say that, under the circumstances of this case, such a comparatively brief limitation would be unreasonable. Even should we conclude that it was, it could be of no avail insofar as any of the appellants who claim to have been unable to take advantage of the privilege within the 7 (or 17)-day period are concerned. The invalidity of the amendatory ordinance would merely leave the original and expired 90-day limitation in effect. Preisler v. Calcaterra, 362 Mo. 662, 243 S.W.2d 62, 66(9). Certainly, a period such as that would not be unreasonable.

Appellants object that the singling out of radio and television repairmen for regulation and licensing, without treating similarly other repairmen, such as washing machine repairmen, automobile repairmen, etc., is arbitrary and unreasonable, rendering the ordinance void under due process and equal protection clauses. “There is no constitutional requirement that legislation must reach every class to which it might be applied — that the legislature must regulate all or none. It is not unconstitutional because it is not all-embracing, and does not include all the evils within its reach.” 12 Am.Jur., Constitutional Law, Section 484, page 160. The legislative authority has the right to “classify with reference to the evil to be prevented.” Patsone v. Commonwealth of Pennsylvania, 232 U.S. 138, 144, 34 S.Ct. 281, 282, 58 L.Ed. 539. The city council could reasonably conclude that the business of radio and television repairing was particularly susceptible to fraudulent practices and could so limit its regulation. ABC Liquidators, Inc. v. Kansas City, Mo.Sup., 322 S.W.2d 876, 883.

Nor does the exemption from the requirements of the ordinance of persons engaged in servicing of industrial machines, mobile equipment or radio or television equipment used or furnished by a common carrier public utility affect the reasonableness of the classification under the ordinance. The ordinance was obviously designed for the protection of the ordinary householder, unfamiliar with the competency and qualifications of the person whom he selects to make the repairs. The exemptions cover operations of the type in which the owner of the equipment often regularly employs persons to perform. Such employees are selected on the basis of their ability to perform the work after consideration of their qualifications. Such exemptions are reasonable and in accord with the purpose of the ordinance.

The appellants contend that the ordinance is unreasonable and unconstitutional because it fails to take into consideration the difference between “outside men” and “bench men” in the television and radio repair business. The evidence at the hearing showed, as appellants claim, that there is a general recognition in the business of two separate categories of service work. One, performed by so-called “outside men”, involves testing and changing of tubes and making minor adjustments to receiving sets in the customer’s house or repairs not involving charts and schematics. Major repairs, involving charts and schematics, are made at the service dealer’s place of business by “bench men.” Appellants assert that the degree of skill and knowledge required of an “outside man” is much less than that required of a “bench man,” but that the ordinance gives no recognition to this fact, subjecting all service technicians to the same examination.

There is no constitutional requirement that the ordinance recognize the distinction in the categories of work in the business regulated. The ordinance requires the examinations to be “practical in character.” They are required to cover “the theory and practice of service, knowledge of the provisions of this ordinance, interpretation of charts and blueprints and plans of such service.” According to the testimony at the hearing, the examinations were “designed to cover the minimum requirements for a serviceman to make home calls or do shop repair.” We cannot say that the provisions of the ordinance regarding the examination to be given are unreasonable.

Appellants attack the ordinance for failing to establish adequate standards for the guidance of the board in performance of its duties and as thereby unconstitutionally delegating legislative authority. They point to provisions that the board consider “the experience and qualifications of the applicant,” but state that the ordinance does not prescribe any standard of experience or of qualifications. They also point to the provisions authorizing the board to promulgate rules and regulations and authorizing suspension or revocation of licenses for violation of such rules and regulations. We are of the opinion that the qualification provisions of the ordinance are not defective for the reasons here urged. Ross v. City of Kansas City, Mo.Sup., 328 S.W.2d 610, 613(2-4); State ex rel. Mackey v. Hyde, 315 Mo. 681, 286 S.W. 363, 366. The authority to prescribe regulations must be exercised within the framework of the terms of the ordinance. So considered, the provision does not constitute an invalid delegation of legislative power. Ex parte Williams, 345 Mo. 1121, 139 S.W.2d 485, 489; Borden Company v. Thomason, Mo.Sup., 353 S.W.2d 735, 758(27,28).

Appellants attack the ordinance as discriminatory against licensed service dealers by requiring that they have an established place of business. A licensed service dealer is defined by the ordinance as a person engaged in the servicing of receiving equipment at “an established business location for the performance of such service.” According to appellants, “some competent servicemen service radios and television receivers part time from their homes and cannot afford and do not have business locations.” Appellants’ argument overlooks the fact that a service dealer’s license is not required in order to perform servicing and repairs. All that is required for that person is a service technician’s license. Appellants’ argument that the ordinance makes an arbitrary, unreasonable and unusual requirement upon service dealers by requiring that such persons pass a technical examination is based upon an erroneous premise. The ordinance permits a licensed technician to obtain a service dealer’s license or permit and license to be issued to a person employing a licensed technician to be in charge of service operations. No examination for the service dealer’s license is required.

The objection that, in supplanting the 5-man board under the original ordinance by a 7-man board in the amendatory one, the provisions of the city charter for removal of members of boards and commissions were not observed presents no question of due process or equal protection, as asserted by appellants. Insofar as the rights asserted by appellants are concerned, whether the act is administered by a 5 or 7-member board is of no consequence.

The appellants also assert the invalidity of the ordinance in question as a “special law”, contrary to Section 40 of Article III of the Constitution of Missouri, 1945, because it does not regulate all service dealers, but only radio and television service dealers and service labor, and because of arbitrary exclusion of certain persons from the coverage of the ordinance. These objections were heretofore considered as related to the equal protection argument of appellants. We concluded that the classifications complained of were not arbitrary and unreasonable. Such conclusion also answers the objections based upon the “special law” argument. ABC Liquidators, Inc. v. Kansas City, Mo.Sup., 322 S.W.2d 876, 885(18).

We have carefully considered all of the other objections advanced by the appellants, including the objection that certain provisions of the ordinance are so vague as to render it unenforceable. We find no merit in such objections (Borden Company v. Thomason, Mo.Sup., 353 S.W.2d 735, 756(22-24)) and conclude that the ordinance is valid and constitutional.

The judgment of the trial court is affirmed.

PER CURIAM.

The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court en banc.

All of the Judges concur except Henley, J., not sitting.


source: Caselaw Access Project

author: PAUL VAN OSDOL, Special Commissioner.

license: Public Domain

text:
    Albert J. KELLEY, Plaintiff-Appellant, v. James W. PRINCE, Defendant-Respondent.
    No. 50367.
    Supreme Court of Missouri, Division No. 1.
    June 8, 1964.

      Green & Raymond, James J. Raymond, St. Louis, for appellant.
    Robert V. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondent.
   PAUL VAN OSDOL, Special Commissioner.

Action for $50,000 damages for personal injury sustained by plaintiff Albert J. Kelley at about eleven fifteen in the morning of September 15, 1962, when the Ford automobile driven by plaintiff came into collision with the Dodge automobile driven by defendant James W. Prince on the western approach of the old St. Charles Bridge across the Missouri River between St. Louis and St. Charles Counties.

Verdict and judgment were for defendant and plaintiff has appealed.

Herein, plaintiff contends Instruction No. 9, given by the trial court at defendant's, instance and submitting plaintiff’s contributory negligence, was prejudicially erroneous. Further, plaintiff contends misconduct of a juror requires reversal and remand.

The main structure of the (old) St. Charles Bridge is straight. The bridge spans the Missouri River in a general east-west direction, and is several hundred feet in length. The main structure is surmounted by a steel superstructure. The two-lane roadway on the bridge is nineteen or nineteen and a half feet wide with concrete curb twelve inches high on either side. At the west end of the main structure the highway approach “curves in” from the northwest, the curvature of the roadway on the approach being a little more than fifteen degrees. At the west end of the main structure the two-lane roadway on the approach broadens to the width of a little over twenty feet.

The westbound Ford driven by plaintiff and the eastbound Dodge driven by defendant came into “sideswiping” collision on the west approach some relatively short distance west of the main structure of the bridge; the evidence of the distance from the main structure and the positions of the respective vehicles with respect to the center line of the roadway, at the point where the vehicles collided, was in conflict. The left side of each vehicle was damaged. Each of the parties, plaintiff and defendant, introduced evidence substantial in tending to show that he was driving his vehicle on his own right half of the roadway and that the other was driving his vehicle partially over to his left of the center line.

The trial court, in instructing the jury, submitted defendant’s negligence and plaintiff’s contributory negligence specifically in failing to operate their respective vehicles on the right half of the roadway. Additionally, the trial court gave Instruction No. 9 which, as stated, submitted contributory negligence, and which instruction was as follows—

“The Court instructs the Jury that it is the duty of the driver of an automobile at all times to drive the same with the highest degree of care, that is, that degree of care which a very careful and prudent person would exercise under the same or similar circumstances.

“You are further instructed that if you find and believe from the evidence that the roadway of the bridge at the place where the collision mentioned in evidence occurred, and for a distance of 1500 feet Eastwardly thereof had a width of 19J4 feet and had curbs 12 inches high along both edges of the roadway, and if you further find that while plaintiff was driving Westwardly along said bridge for said distance of 1500 feet Eastwardly of the place where the collision occurred, he was driving his vehicle with his left arm or elbow protruding from the window, if you so find, and if you further find that under the circumstances of the width of the roadway of the said bridge and of the presence of the curbs along the edges thereof, if so, that driving along the roadway of said bridge with an arm or elbow protruding from the window of the vehicle was negligent, and if you find that such negligence, if so, caused or contributed to cause plaintiff’s injury, then your verdict must be for the defendant, on his cause of action for personal injury.”

Preliminarily to the statement and examination of plaintiff’s contentions of error in giving the Instruction No. 9, we deem it necessary to state evidence relevant particularly to' the issue of plaintiff’s contributory negligence as submitted in the instruction.

Plaintiff testified that, in moving west-wardly in approaching and passing over the bridge, he was driving thirty-five miles per hour, but he slowed down his vehicle to twenty or twenty-two miles per hour when he approached the westerly end of the superstructure. He had driven over the bridge “numerous times,” and he reduced speed “because I have always been afraid of that bridge. — It is a narrow bridge — •. And when two cars meet each other on that bridge, there is very little tolerance.”

As his automobile cleared the superstructure, plaintiff looked up and saw defendant’s oncoming car “nearly astraddle of the center of the road” and thirty or thirty-five feet to the westward. Plaintiff further testified that, in driving west-wardly in approaching the place of the collision, he was sitting with his right hand on top of the steering wheel, and with the tips of the fingers’of his left hand on the steering wheel. His left elbow was “out from the window sill, that is, out from the exterior of the door, probably two inches, but out of the window about four inches.” Photographs show and plaintiff testified the handle of the left front door (which handle, the photographs disclose, was but approximately two inches below the top of the solid lower panel of the door) was not damaged.

Plaintiff sustained a severe comminuted fracture of the left elbow involving the entire joint. He sustained no other injury. A physician who treated plaintiff, witness for plaintiff, described plaintiff’s injury as “a side-swipe injury.” The witness said like injuries he had theretofore observed invariably were suffered in cases “where someone 'was driving with an elbow on the window of the car.”

Plaintiff initially contends Instruction No. 9 was prejudicially erroneous in that it permitted the jury to find plaintiff was contributorily negligent merely on the hypothesis that plaintiff drove - over the narrow bridge with his elbow protruding from the car window, and without requiring an additional finding that plaintiff had knowledge and appreciation of danger of injury.

Plaintiff, in his argument, would have us look to what plaintiff terms “his uncon-tradicted testimony” that plaintiff’s elbow protruded hut about two inches from the exterior of the window sill or lower panel of the car door; that the left side of plaintiff’s car was to plaintiff’s right of and never closer than one or two feet from the center line of the roadway; and that the collision occurred in an instant after plaintiff first saw defendant’s car. Hence, argues plaintiff, the factual situation shown by the undisputed evidence forces the inference that defendant’s eastbound automobile negligently was driven partially over to the northward of the center line of the roadway. Says plaintiff, he was not required to anticipate and guard against the hazard of defendant’s negligent movement over into the north lane of the roadway; and plaintiff says, the instruction (No. 9) is therefore erroneous because there was no evidence and no hypothesis in the instruction that plaintiff had the time or opportunity to remove his arm from the window sill after he had seen or had notice of defendant’s negligent movement.

In these connections, plaintiff quotes language expressed in Elgin v. Kroger Grocery & Baking Co., 357 Mo. 19, 206 S.W.2d 501, at page 507, as follows — “As a general rule a man is not required to look for danger when he has no cause to anticipate danger, or when * * ;|: it be caused by the negligence of another.” Also, plaintiff quotes from Gitterman v. Danella, Mo.Sup., 356 S.W.2d 52, at pages 54-55, as follows — “An essential element of contributory negligence is that the person charged acted or failed to act with knowledge and appreciation, actual or constructive, of the danger of injury which his conduct involved; and a corollary to that fundamental is that one’s knowledge of the general condition from which the danger arose does not necessarily constitute knowledge and appreciation of the danger.”

The reading of the statements of the evidence in the Elgin and Gitterman cases discloses situations unlike that of the instant case; and the evidence stated in those cases, especially with respect to the evidence or lack of it tending to show the plaintiffs’ knowledge or appreciation of danger of injury is decisively different. In our case, plaintiff’s argument is basically faulty in asserting his testimony (that no part of his vehicle was moving south of the center line) was undisputed or uncon-tradicted. Consequently, plaintiff’s conclusion (that undisputed evidence forces the inference that defendant’s vehicle was negligently driven partially over to the northward of the center line) is erroneous. As we have said supra, each of the parties, plaintiff and defendant, introduced substantial evidence tending to show that he was driving his vehicle on his own right half of the roadway and that the other was driving his vehicle partially over to his left of the center line. For example, a witness for defendant testified that Mr. Prince did not “ever get on the other side, the North side of the center line * * *. There was quite a bit * * * of the Kelly car on the south side * * * of the road * *

Moreover, as detailed supra, plaintiff’s own testimony shows not only his knowledge of the general condition of the bridge and its approaches, but also his knowledge and appreciation of danger inhering. This, without more, disposes of plaintiff’s initial contention and distinguishes our case from Gitterman v. Danella, supra, wherein this court (in holding the contributory negligence Instruction 9, given in that case, erroneous in failing to require the finding of knowledge and appreciation of danger) expressly pointed out that plaintiff did not concede knowledge and appreciation of danger; her positive testimony was to the contrary.

Plaintiff further contends the Instruction No. 9 was erroneous in failing to require a finding that plaintiff’s negligence as submitted “directly and proximately” caused or contributed to cause plaintiff’s injury.

Plaintiff says this contention “arises from the premise that the collision is the cause which produced the injury.” And plaintiff in his argument asserts that the mere presence of the elbow on the window sill “certainly is not the singular efficient cause of the injttry.” And, argues plaintiff, if the presence of the elbow on the window sill “can be construed as having combined with and entered into the producing cause — then, of course, the instruction must recite an expression of the combination of the two causes.”

Essentially, plaintiff’s argument, as we understand it, is that the instruction is erroneous in failing to either submit negligence in causing the “collision” in “combination” with the negligent conduct as submitted in the instruction or modifying the hypothesis of causation in the instruction by the use of the term “directly” (or ■“proximately”).

As we best can analyze plaintiff’s argument, plaintiff has confused the circumstance or fact of “collision” with the ■“legal” cause or causes of the “injury.” And under the evidence as introduced in the instant case it seems clear that it was not essential that any conduct which wholly or in part brought about the collision should have been hypothesized in connection or in conjunction or in “combination” with the negligent conduct of plaintiff hypothesized and submitted in Instruction No. 9 as the cause or contributing cause of plaintiff’s injury. We do not agree that, under the evidence in this case, the negligence, if so, of plaintiff in driving his automobile over the narrow bridge with his arm or elbow protruding, could not be reasonably said to be the “singular” efficient cause of his injury as plaintiff apparently argues.

As stated supra, there was evidence from which it reasonably could be inferred that plaintiff was negligent as hypothesized in the instruction, and that there was causal connection between such negligence and plaintiff’s injury, that is, under the evidence introduced in this case, it reasonably could be said that but for plaintiff’s negligence as submitted he would have sustained no injury; and this, even in the shown circumstance of the collision.

Now, particularly noticing the “kind of negligent conduct” submitted in Instruction No. 9 — driving his vehicle with his left arm or elbow protruding out of the window; and noticing the submitted causal connection — caused or contributed to cause plaintiff’s injury; and further noticing the nature of plaintiff’s injury as shown by plaintiff’s evidence — fracture of the bones of the left elbow, such an injury as one suffers in a sideswiping collision if driving an automobile with the arm or elbow protruding, the inference is compelled that the instruction requires the finding of negligence which necessarily directly caused or directly contributed to cause, and necessarily formed a part of the efficient cause of the injury.

As a rule it is safer that an instruction submitting the issue of primary negligence or contributory negligence modify the submission of the essential element of causation by the use of the word “directly” (or “proximately”). Stumpf v. Panhandle Eastern Pipeline Co., 354 Mo. 208, 189 S.W.2d 223; Slates v. Joplin Butane Gas Co., Mo.Sup., 315 S.W.2d 808. See also Creech v. Blackwell, Mo.Sup., 318 S.W.2d 342; and Giambelluca v. Missouri Pac. R. Co., Mo.Sup., 320 S.W.2d 457. However, if, as here, “an instruction on contributory negligence requires the finding of negligent acts which, in the nature of things, necessarily contributed directly to cause the injury and necessarily formed a part of the efficient cause thereof, then the instruction cannot be held erroneous because it does not require the jury to draw the inference which the law itself draws therefrom.” Carr v. City of St. Joseph, Mo.Sup., 225 S.W. 922, 923; Barr v. Missouri Pac. R. Co., Mo.Sup., 37 S.W.2d 927; Knox v. Weathers, 363 Mo. 1167, 257 S.W.2d 912; Wilson v. Toliver, Mo.Sup., 305 S.W.2d 423; Creech v. Blackwell, supra, Stumpf v. Panhandle Eastern Pipeline Co., supra; Giambelluca v. Missouri Pac. R. Co., supra; Killian v. Wheeloc Engineering Co., Mo.Sup., 376 S.W.2d 147.

We rule adversely to the contentions of error of the trial court in giving Instruction No. 9.

The transcript of the record shows the circumstances of an occurrence during the progress of the trial proper and of which plaintiff complains herein, and concerning which occurrence the trial court made inquiry after the jury had returned the verdict.

In the inquiry the following facts were developed—

At a noon recess which was declared by the trial court during the introduction of evidence in plaintiff’s case-in-chief, and just after plaintiff’s medical witness had testified, a juror called at the office of an agent of an insurance company. (The insurance company had been mentioned by plaintiff’s counsel in the interrogation of the panel of veniremen on voir dire.) The juror asked the insurance agent what an insurance company would pay for the loss of an arm. The agent said, “Gee, that is a hard thing! — That is a hard thing to say.” The juror then asked, “Well, isn’t $2,000 or $2,500 what the compensation would pay?” The agent did not answer this question; the agent asked the age of the injured person; and, at this point in the conversation, the juror recalled that the insurance company represented by the agent had been mentioned in the interrogation of the panel on voir dire, “and I (the juror) walked out as soon as I could.” The juror testified the conversation had no effect upon the jury’s deliberations and verdict — “We didn’t get into a discussion of the information that I was seeking — the jury did not.”

We have the firm opinion the juror’s conduct was improper, although we have the further opinion the evidence introduced in the trial court’s inquiry explained the occurrence as being devoid of corruption or other consciously intentional impropriety. The testimony of the juror indicated the jury, in the jury’s deliberations, properly was proceeding initially in considering the evidence bearing upon the issue of liability, inasmuch as the verdict was for defendant. He said, in effect, the jury “didn’t get into a discussion” of the amount of an award for the injury. We are not inclined to believe the occurrence could have been prejudicial. A trial court’s action in a situation such as here requires the exercise of sound discretion. We can see no abuse of discretion in this case. The record in reciting the whole of the inquiry shows the able and experienced trial judge anxiously participated in the trial court’s inquiry. No mistrial was declared. And, subsequently, when the instant contention was again called to the trial court’s attention by assignment in plaintiff’s motion for a new trial, the motion was overruled.

The judgment for defendant should be affirmed.

It is so ordered.

PER CURIAM:

The foregoing opinion by VAN OSDOL, Special Commissioner, is adopted as the opinion of the court.

All concur except HENLEY, J., not sitting.


author: STOCKARD, Commissioner.

text:
    Alpha Editha SHEETS, Appellant, v. HILL BROTHERS DISTRIBUTORS, INC., and The 5940 Shoe Company, Inc., Respondents.
    No. 50030.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.
    Randolph & Randolph, Robert B. Randolph, St. Joseph, for appellant.
    Arnold N. Shanberg, Rope, Shanberg & Rope, Kansas City, for respondents.
   STOCKARD, Commissioner.

Plaintiff has appealed from the judgment of the trial court directing a verdict for defendants at the close of plaintiff’s evidence in her suit for damages in the amount of $93,975.00 for alleged breach of an oral contract of employment.

The following facts and circumstances reasonably could be found by a jury to exist from a consideration, in the light most favorable to her, of plaintiff’s evidence. On January 2, 1958, while employed by The 5940 Shoe Co., Inc., a wholly owned subsidiary of Hill Brothers Distributors, Inc., at its store in St, Joseph, Missouri, plaintiff fell from a chair while attempting to obtain a pair of shoes from a rack, and she sustained an injury which admittedly arose out of and in the course of her employment. A report of injury was filed by her employer with the Division of Workmen’s Compensation. The Surety National Insurance Company, her employer’s compensation insurance carrier, paid plaintiff’s medical bills in the amount of $493.20 and paid $142.80 compensation to her “for a healing period of 4% weeks.” Surety National Insurance Company and plaintiff then entered into a lump sum settlement agreement, approved by a referee of the Division of Workmen’s Compensation, which recited, among other things, the fact of the injury arising out of and in the course of employment, that “both the employer and employee were operating under and subject to the provisions of the Missouri Workmen’s Compensation Law,” that “all liability of said employer was fully insured by Surety National Insurance Company,” the amount of payments previously made to plaintiff, and that there existed “a dispute between the employer and the employee as to the nature and extent of disability the employee has suffered as result of said accident.” It was then recited that it was agreed that the parties thereto would enter into a compromise lump sum settlement pursuant to Section 287.390 RSMo 1959, V.A.M.S., for the additional payment to plaintiff of $1,716.00. The agreement also recited that plaintiff “states that she has read the foregoing compromise lump sum agreement and she understands it and urges that approval be made by the Division of Workmen’s Compensation,” and that she understands that by agreeing to the settlement “she is forever closing out this claim under the Missouri Workmen’s Compensation Law.” Before agreeing to the lump sum settlement plaintiff talked to Niel Hill and Clifford Hill (not identified in the evidence but referred to in plaintiff’s brief as “her employers”) and according to plaintiff, Niel Hill told her, “You know what your hospital bills have been to date, * * * if you want to make the settlement they have offered you, you will have a lifetime job with us.” According to plaintiff, Clifford Hill told her, “you know we will always take care of you. You will have a lifetime job with us.” In answer to the question, “what did Hill Brothers agree to do for you ?” she replied: “Hill Brothers told me I would have a lifetime job with them at the St. Joseph Store,” and “they didn’t put any stipulation on it whatever” as to whether she was to be able to do the work, and “they didn’t say satisfactory or unsatisfactory.” Plaintiff further testified that in return for the promise of lifetime employment she agreed “to not file a suit against them; to make a settlement for $1,716.00. * * * I was to take their offer and to make a settlement and not bring suit against them and I would have a lifetime job.” Plaintiff returned to her employment at the shoe store and continued to work until September 14, 1961, when her employment was terminated. According to plaintiff, the “supervisor” told her that he had talked to Mr. Hill and “he said to fire you.”

In her petition plaintiff alleged that the “defendants, or their liability insurer offered plaintiff approximately $1,700.00 as a compromise settlement for the injury she received in January 1958,” and that “in consideration of plaintiff accepting the $1,700.00, and not bringing suit against defendants on account of her said injury, defendants agreed to give plaintiff steady employment during the period of her natural life in their Hill Brothers Shoe Store in St. Joseph, Missouri.” She further alleged that she “performed her part of the agreement” but that defendants had violated the agreement by discharging her. The trial court directed a verdict for defendants and stated that because of the provisions of Section 287.390 RSMo 1959, V.A.M.S., the agreement “is not valid and therefore cannot be enforced.”

Plaintiff cites and relies on only two cases: Harrington v. Kansas City Cable Railway Company, 60 Mo.App. 223 (1894), and McDaniel v. United Railways Company of St. Louis, 165 Mo.App. 678, 148 S.W. 464 (1912). Both of these cases, decided before the enactment of the Workmen’s Compensation Law, may be considered as authority that the oral agreement for lifetime employment was valid and enforceable, and without so ruling or implying, we shall for the purpose of this opinion assume that in the absence of the Workmen’s Compensation Law an agreement of the nature here alleged would, if established by competent evidence, be valid and enforceable. We shall also assume that the persons with whom the alleged contract was entered into on behalf of the defendants had authority to so bind the corporate defendants.

It is admitted, and plaintiff’s evidence affirmatively established, that plaintiff and her employer were subject to the Missouri Workmen’s Compensation Law. In such event the rights and remedies provided therein exclude all rights and remedies of plaintiff against defendant that she might have had at common law. Section 287.120(2) RSMo 1959, V.A.M.S. As stated in Marie v. Standard Steel Works, Mo., 319 S.W.2d 871, 875, “The compensation act, * * * is not supplemental or declaratory of any existing rule, right or remedy, but creates an entirely new right or remedy and where the employer and employee have elected to accept the provisions of the act [or are subject thereto by operation of law] such new right or remedy is wholly substitutional in character and supplants all other rights and remedies, at common law or otherwise.” See also Bunner v. Patti, 343 Mo. 274, 121 S.W.2d 153; Montgomery v. Mine La Motte Corporation, Mo., 304 S.W.2d 885, 888; McDaniel v. Kerr, 364 Mo. 1, 258 S.W.2d 629. Therefore, when on January 2, 1958, plaintiff sustained an injury arising out of and in the course of her employment, all remedies, claims or rights accruing to her and against her employer for compensation or damages arising by reason of such injury were those provided for in the Workmen’s Compensation Law to the exclusion of any common law or contractual right.

Section 287.390 RSMo 1959, V.A.M.S. (in effect at the time the lump sum settlement agreement was entered into and approved by the referee of the Division of Workmen’s Compensation) provided that "Nothing in this chapter [the Workmen’s Compensation Law] shall be construed as preventing the parties to claims hereunder from entering into voluntary agreements in settlement thereof, but no agreement by an employee or his dependents to waive his rights under this chapter shall be valid, nor shall any agreement of settlement or compromise of any dispute or claim for compensation under this chapter be valid until approved by the commission, * * (Italics added). Plaintiff has alleged, and her evidence establishes, that the agreement in settlement of her claim for compensation included the promise of the payment to her of a certain sum of money and the promise of lifetime employment, and her evidence is to the effect that she accepted the sum offered because of the promise of lifetime employment. However, that part of the consideration for the settlement consisting of the promise of the lifetime employment is not included in the written agreement approved by the referee of the Division of v Workmen’s Compensation. We must, therefore, determine the effect on plaintiff’s right to bring a common law action for breach of contract of the provision in Section 287.390 that an unapproved agreement of settlement is not valid.

In Jones v. F. W. Woolworth Co., 234 Mo.App. 1189, 122 S.W.2d 41, an employee brought suit against her employer, both of whom were admittedly subject to the Workmen’s Compensation Law, to enforce an alleged agreement for compensation not approved by the then Workmen’s Compensation Commission. In holding that a common law action could not be maintained on the alleged agreement, it was stated: “If an agreement, executed by the parties so out of accord with the compensation law that it does not have and ought not have the approval of the compensation commission, thereby becomes binding and suable at common law, then in any case when injury occurs to an employee the parties ignoring the compensation commission may come together and by agreement nullify the compensation law.” In conclusion, it was said, “It is clear that the agreement in suit here is not suable at common law.” In Carr v. John W. Rowan Plastering Co., 227 Mo.App. 562, 55 S.W.2d 727, the parties entered into a “stipulation” before the Workmen’s Compensation Commission that “the injury constituted permanent partial disability of 16^$ per cent, of 400 weeks or 66⅔ weeks for which compensation should be paid at the rate of $20.00 per week, amounting to $1,333.33, less the sum of $160.00 already paid for temporary total disability; * * The Commission refused to recognize the stipulation and determined the disability to be “Ho of total disability or 40 weeks.” The court held: “The Commission having refused to recognize the settlement provided for in the stipulation, which under the provisions of section 3333, R.S.1929 (Mo.) * * * [now Section 287.390], it had the power to do, the settlement was not binding on anyone.” A like result was announced in Harder v. Thrift Const. Co., Mo.App., 53 S.W.2d 34; O’Malley v. Mack International Motor Truck Corporation, 225 Mo.App. 1, 31 S.W.2d 554; and Shout v. Gunite Concrete & Construction Co., 226 Mo.App. 388, 41 S.W.2d 629. See also Myers v. Cap Sheaf Bread Co., 354 Mo. 943, 192 S.W.2d 503, where this court quoted from Liberty Mut. Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945, 959, as follows: “The settlement, if any, is made by the parties and is wholly voluntary. * * * Under Sec. 3333 * * * [now Section 287.390], approval of the settlement by the Commission is a prerequisite to its validity.”

The above cases announce the general rule that a settlement between the employee and employer (or the insurance carrier of the employer) of a claim under the Workmen’s Compensation Law must be approved by the Division of Workmen’s Compensation to be valid and enforceable, but the facts of those cases were not the same and some are not reasonably similar to those in this case. However, we have found a case from another jurisdiction that is remarkedly similar under the facts to the pending case. In Horvath v. Sheridan-Wyoming Coal Co., 58 Wyo. 211, 131 P.2d 315, plaintiff-employee brought suit against his employer for breach of an alleged oral contract of employment, and the facts were, as stated in the opinion, as follows: “The plaintiff asserts that he was permanently injured on account of the accident experienced by him on December 4, 1937, and the theory upon which the plaintiff’s side of the cause below was tried appears to be that he was re-employed by the company * * * under an oral contract made between himself and [his employer] whereby the latter agreed to give him * * * steady employment during the remainder of his life at such light work as he might be able to perform and at living wages. The consideration for this agreement was asserted to be that due to the promises thus claimed to have been made on behalf of the company to [plaintiff], the latter agreed to and did ‘forego and abandon his right to Workmen’s Compensation allowances arising from the injuries received by him while employed by the company in its Acme mine on December 4, 1937,’ * * A Wyoming statute provided that “No contract * * * or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this chapter [Workmen’s Compensation Law] except as herein provided.” The Wyoniing court first pointed out, by quoting from Brigham Young University v. Industrial Commission of Utah, 74 Utah 349, 279 P. 889, 891, 65 A.L.R. 152, that “ ‘it is competent for the Legislature to declare that an employer and employé be not permitted to enter into an agreed settlement of claims arising under the [Workmen’s Compensation] act, except upon certain imposed conditions, * * * [and] that any agreement violative of the provisions of the act in such respect is void and unenforceable ;***.’ ” After reviewing cases from other jurisdictions, it was concluded and held that “there was no consideration for the contract in suit.” Other cases which hold that it is proper for the Legislature to prohibit or regulate compromises of workmen’s compensation claims, and to declare void agreements be tween the employee and the employer, or his insurance carrier, when not authorized by the applicable workmen’s compensation law include Workmen’s Compensation Board v. Abbott, 212 Ky. 123, 278 S.W. 533, 47 A.L.R. 789; Tillman v. Moody, 181 Ga. 530, 182 S.E. 906; Department of Industrial Relations v. Travelers’ Insurance Co., 177 Ga. 669, 170 S.E. 883; Doby v. Miami Trust Company, 39 Ariz, 228, 5 P.2d 187. See also the cases cited in the annotation at 47 A.L.R. 799 entitled “Constitutionality of prohibition of assignment or release of claim under Workmen’s Compensation Acts.”

The Legislature of Missouri has declared the public policy of this State to be that agreements in settlement of claims under the Workmen’s Compensation Law, not approved by the Division of Workmen’s Compensation, are not valid. This limitation obviously was to protect the employee, but it also protects the employer. In Riss & Co. v. Wallace, 350 Mo. 1208, 171 S.W.2d 641, 644, this court held that the contract in that case was “void under the statute, and will not support an action either for its enforcement or for its breach.” See also Lebcowitz v. Simms, Mo.App., 300 S.W.2d 827. These cases do not pertain to unapproved 'agreements in settlement of workmen’s compensation claims, but they announce the general and applicable rule. We, as a court, cannot say that unapproved agreements believed to be unfavorable to the employee are not valid, but those believed to be favorable to the employee are valid. The Legislature has said that all such agreements are not valid, and it is not for the courts to say that the “two bladed sword” thus created should not cut both ways.

-We must necessarily conclude that the alleged oral contract for lifetime employment made in settlement of plaintiff’s workmen’s compensation claim, and not approved by the Division of Workmen’s Compensation, is by statute declared to be void, and for that reason it is not enforceable m the courts. The trial court correctly directed a verdict in favor of defendants.

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.


text:
    STATE of Missouri, Respondent, v. James Curtis WHITTINGTON, Appellant.
    No. 50151.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.

      Hugh J. White, St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   STOCKARD, Commissioner.

James Curtis Whittington was found guilty by a jury of the felony of selling marijuana in violation of Section 195.020 RSMo 1959, V.A.M.S., and his punishment was assessed by the jury at confinement in a state correctional institution for a term of five years. He has appealed from the judgment entered pursuant to the verdict. No brief has been filed in this court on his behalf so we review the assignments of error properly presented in the motion for new trial.

Walter Strickland, who was also known as Robert White and who admitted that he had been a drug addict, testified on behalf of the State that at about one o’clock in the afternoon of August 16, 1961, he and James Parker went to 4257 Delmar where appellant lived; that he, Strickland, asked appellant for marijuana; that appellant took some marijuana from a large envelope and placed it in a small brown envelope and gave it to Strickland; and that he, Strickland, paid appellant four dollars therefor. The small brown envelope and its contents were introduced in evidence after a chemist testified that the contents consisted of 1.89 grains of marijuana.

From the above brief statement of the essential portions of the evidence presented by the State, it is readily apparent that there is no merit to appellant’s contention that the trial court erred in refusing to direct a verdict of acquittal.

Appellant asserts that “the court erred in overruling his objection to testimony offered by one Walter Strickland on the ground that said witness, in pre-trial deposition, had erroneously stated his name to be another, thereby denying to defendant the right to discovery inherent in such procedure.”

It appears from the transcript that the State had endorsed on the indictment the name of Robert White as a witness. On December 14, 1962, prior to trial which started on March 4, 1963, appellant took the deposition of the person identified as Robert White, and in his deposition this witness testified that his name was Robert White and that he lived at 1300 Burd Street. After the jury was selected but before any testimony was taken, appellant requested and was permitted to examine Robert White out of the presence of the jury. At that time he testified that his name was Walter Strickland and that he had previously on deposition given his name as Robert White because “that is the name the police knew me by,” and that he had given the name he “worked under.” At the conclusion of this examination appellant moved to “disqualify the State’s witness, namely Robert White, * * * for the reason that the defendant is deprived of his constitutional rights of having a witness endorsed on the indictment at this time with his address * * * [and] said witness after [on?] his deposition testified under oath that his name was Robert White, which is false, * * * [and] this defendant is now going to trial or continuing at this time with the trial without the benefit of his statutory rights for the reason that all said testimony given by this so-called witness Robert White, whose name was endorsed on the informa-tion [was false?], and that the witness does not live at the Metropolitan Police Department as his address was given on the indictment.” During the discussion appellant’s attorney admitted that he had known for “about a month” that the correct name of the person who used the name Robert White was in fact Walter Strickland, and the assistant circuit attorney stated to the court that “as far as I know the man’s name was Robert White.” The trial court permitted the State to endorse on the indictment as a witness the name of Walter Strickland.

Supreme Court Rule 24.17, V.A.M.R., requires the endorsement on an indictment or information the names of all material witnesses for the prosecution, but “other witnesses may be added at any time upon order of court and after notice to the defendant or his attorney of record” when by doing so the accused is not prejudiced. State v. Parks, Mo., 331 S.W.2d 547; State v. Hands, Mo., 260 S.W.2d 14; State v. Carson, Mo., 286 S.W.2d 750; State v. Churchill, Mo., 299 S.W.2d 475. In this case the trial court permitted the endorsement on the indictment of the name of a witness known by appellant for over a month as the person whose alias name was already endorsed thereon. Appellant did not claim surprise, and of course could not have been surprised, and he did not seek a continuance. His request was that the person, whom he then knew and had known for over a month, to be Walter Strickland, be “disqualified” as a witness. He was not entitled to that relief and there is no merit to the assignment of error in the motion for new trial.

The indictment charged that appellant “did unlawfully and feloniously sell to one, Robert White,” marijuana. At the close of all the evidence but before the case was submitted to the jury, the trial court permitted the filing of an information to be substituted for the indictment. The only difference, other than formal matters, between the two was that the information charged that appellant “did unlawfully and feloniously sell to one Walter Strickland, also known as Robert White,” marijuana. Appellant contends in his motion for new trial that the court erred in permitting the information to be substituted for the indictment “after the proceedings had begun in violation of statute in that facts alleged in such information were materially different than those alleged in the original indictment.”

Supreme Court Rule 24.11, V.A.M.R., provides that “No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: * * * for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits: * * Supreme Court Rule 26.04, V.A.M.R., provides that “Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof in the Christian name or surname or both Christian name and surname or other description whatsoever of any person whomsoever therein named or described, * * * such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the merits of the case and prejudicial to the defense of the defendant.” The trial court had the authority to permit the information to be substituted for the indictment at the time it did if no additional or different offense was charged and if substantial rights of the appellant were not prejudiced. Supreme Court Rule 24.02, V.A.M.R. No additional or different offense was charged by the information; appellant does not set forth any manner in which he was prejudiced; and in view of the fact that for more than one month before trial he knew that Robert White and Walter Strickland were one and the same person he could not have been prejudiced. The assignment is without merit.

The remaining two assignments are that “the court erred in overruling defendant’s objection to testimony of State’s witness Longinette as to what transpired between absent officers and prosecuting witness,” and “the court erred in overruling defendant’s motions for mistrial when offered.” Neither of these assignments preserve anything for appellate review. As to the first, no reasons are set forth as to why the testimony is claimed to have been inadmissible and no reasons are advanced indicating how or why such testimony was: prejudicial. See State v. Davis, Mo., 371 S.W.2d 270. In addition, although we have no duty to do so we have examined all of the testimony of State’s witness Longinette, and we are not able to identify the testimony to which reference is attempted to be made. As to the second assignment, neither this court nor the trial court is required to read the record and to speculate what particular instances (or why they are believed to constitute prejudicial error) appellant had in mind in making the contention that the trial court erred in overruling defendant’s motions for a mistrial. State v. Brookshire, Mo., 353 S.W.2d 681, 685. However, we have read the record and only one motion for a mistrial was made by appellant, and it was totally without merit.

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.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Lester KING, Appellant.
    No. 50245.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.
    Lester King, pro se.
    Thomas F. Eagleton, Atty. Gen., Robert R. Northcutt, Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Judge.

This appeal was taken from an order of the Circuit Court denying a motion to vacate a judgment and sentence of 15 years for first degree robbery. The motion was filed under our Criminal Rule 27.26, V.A.M.R. As has been stated on numerous occasions, such a motion constitutes a collateral attack on the judgment and defects must be shown which render the judgment essentially void. State v. Turner, Mo., 353 S.W.2d 602; State v. Cerny, 365 Mo. 732, 286 S.W.2d 804. The appeal was filed here pursuant to our order permitting a special notice of appeal to be filed out of time. A free transcript has been furnished to petitioner as an indigent. The motion was denied on May 31, 1963, upon consideration of the motion and exhibits.

The facts leading up to this proceeding are, in substance, as follows: petitioner was charged by information filed in the Circuit Court of Phelps County with first degree robbery by means of a dangerous and deadly weapon, actually the holdup of a liquor store; he was granted a change of venue to Cole County, where he and his counsel signed and filed a written waiver of jury trial pursuant to Criminal Rule 26.01 and Art. I, § 22(a) of the V.A.M.S. Constitution ; with the Court’s assent, trial was had without a jury. Defendant was represented by counsel. On November 17, 1955, after hearing the evidence and arguments, the Court filed declarations of law, found the defendant guilty as charged, and assessed his punishment at 15 years in the penitentiary; the Court granted defendant 30 days in which to file motion for a new trial. The record shows no such motion. On January 3, 1956, defendant was granted al-locution, judgment was entered and sentence pronounced.

In considering the substance of the present motion to vacate, we shall consider also the affidavits attached and two pre-submission “Motions for Appropriate Relief.” Defendant has briefed this matter pro se, citing many authorities ranging from Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (dealing with the basic rights on habeas corpus) to a civil case in Ohio dealing with proximate and intervening causes.

Defendant now contends: (1) That while in jail at Rolla on three burglary charges he escaped and traveled to Kansas; that he was “kidnapped” in Topeka on January 15, 1955, and brought back to Rolla, from whence he took a change of venue to Cole County; that he was there released on bond but was later rearrested in Rolla (April 26, 1955) and charged with a robbery committed in that county on April 26, 1955; that he also obtained a change of venue to Cole County on that charge, with the results as already stated; that “manifestly movant’s existing venue and jurisdiction remains yet in the State of Kansas * * (2) That after his conviction and on January 3, 1956 (the date of his allocution and sentence) he was “denied the reappointment of another attorney” to appeal his conviction, pursuant to his motion. The transcript shows no such motion, no request for any such appointment, and no reference to a desire for an appeal; in fact, no motion for new trial was filed; he also alleges, rather vaguely, that his counsel did not represent him properly at the trial and did not procure the necessary witnesses. (3) That the information was and is invalid because Jay White, the Prosecuting Attorney of Phelps County, had employed his brother, Zane White, as Assistant Prosecuting Attorney in violation of Art. 7, § 6, Mo.Const., had forfeited his office, and that he was thus unauthorized to sign and verify the information. (4) That there were inconsistencies in the testimony of the State’s witnesses at his trial, that one Bessie Yowell (convicted elsewhere of the same holdup) testified under duress, and that the proof was not sufficient for a conviction. Defendant has submitted an affidavit of one Everett Yowell, stating that King was drunk and unconscious in the back seat of a car at the time of the robbery.

Before considering the merits of these contentions, we note here the prior petitions filed by this defendant, as they have some bearing on the present appeal. All of these were filed as an indigent by leave of court. On June 13, 1956, he filed petition for ha-beas corpus in this court, raised the so-called question of “nepotism,” alleged perjury at his trial, and alleged improper representation by counsel at his trial and thereafter. The writ was denied on July 9, 1956. Another petition for habeas corpus was filed on February 21, 1957, and denied on March 11, 1957. On December 27, 1957, he filed another such petition specifically presenting the alleged nepotism and various irregularities which he claimed had occurred at his trial. This was denied on January 13, 1958, and on April 28, 1958, the United States Supreme Court denied certiorari. In the meantime, and on August 6, 1957, a petition for habeas corpus was denied in the United States District Court for the Western District of Missouri, for the reason, among others, that his complaints were “subject to regulation by the State Court.” Another petition for habeas corpus has been denied in this court on February 7, 1964, during the pendency of the present appeal. A petition for habeas corpus was denied by the Circuit Court of Cole County on September 9, 1959; in or about April, 1956, such a petition was also denied, it being alleged therein that defendant was denied adequate representation by counsel. Opinions in subsequent and additional proceedings against this defendant appear at 372 S.W.2d 857 (defendant being represented there by the same counsel who represented him at the 1956 trial), and at 375 S.W.2d 34, although those are of no particular significance here.

The so-called “kidnapping” of defendant in Topeka after he escaped from the Phelps County jail is of no significance -whatever here. The offense which resulted in his robbery conviction was committed in Phelps County on April 26, 1955, after 'he had been returned to Missouri, had procured a change of venue, had been released ton bond in Cole County and had voluntarily returned to Phelps County and there tangled anew with the law. If there was any “kidnapping,” which from the record seems most improbable, that act certainly would not follow him through life like part of a “chain of title” and invalidate all future criminal charges. Moreover, our transcript contains copies of certain extradition papers for this defendant which, although apparently incomplete, indicate that extradition was applied for. Defendant has presented these by attaching them to his present motion as exhibits, for some unexplained reason.

The assertion that defendant requested and was denied counsel to represent him upon an appeal is not corroborated in any respect by the record. Also, nothing in the record indicates that defendant expressed any desire to appeal, which, of course, he could have done pro se. We are convinced that the able and experienced trial judge would have not only permitted such a step, but would have aided him. The fact that no motion for new trial was filed tends to negative any desire for an appeal. The courts of Missouri have for generations furnished appointed trial counsel to all indigent defendants in felony cases, but not until the amendment of Criminal Rule 29.01 on July 9, 1963, did we require the appointment of counsel to represent such defendants upon appeal. And the decisions of the Supreme Court of the United States made no such requirement until approximately the same time. However, this court has for many, many years reviewed independently and on the merits all meritorious assignments of error raised in motions for new trial in felony cases, as well as the sufficiency of the formal parts of the record. State v. Archer, Mo., 328 S.W.2d 661; State v. Hernandez, Mo., 325 S.W.2d 494; State v. Wilson (1909), 223 Mo. 173, 122 S.W. 671. Here the record belies the truth of the rather vague suggestion that the defendant was denied “reappointment of another Attorney to defend him and appeal the Conviction * * *, ” and no such appointment was then required.

Defendant raises again, as he has in at least two of his prior proceedings (June, 1956 and December, 1957), the contention that the information upon which he was convicted was invalid because the prosecuting attorney had been guilty of nepotism and had forfeited his office, citing Article 7, § 6, Mo.Const. A petition for certiorari was denied by the United States Supreme Court following our denial of the petition of December, 1957. What we may say concerning this attack upon the information is by no means to be taken as an assumption that such an attack is permissible at this late date. Defendant cites principally the case of State ex inf. Norman v. Ellis, 325 Mo. 154, 28 S.W.2d 363. That was an original proceeding in quo warranto filed in this court. It was held that the Constitutional provision proscribing nepotism was self-executing in that legislation was not required to implement it, and that the officers who were Respondents had forfeited their offices. However, we have found no case where the acts of an officer, without a formal ouster, have been declared invalid. In referring to the asserted necessity of legislation and to the remedy already provided, the Court said in the Ellis case, 28 S.W.2d loe. cit. 366: “If anything more is required, section 3, article 6, of the Constitution, invests the Supreme Court with power to issue writs of habeas corpus, mandamus, quo warranto, etc. There a method is provided in the Constitution for removal of an officer who has forfeited his office under section 13 (nepotism by public officer), and section 7 could not apply on any theory.” (Words in parentheses are ours.) And we note again that the Ellis case was a quo warranto proceeding. That opinion in itself would seem to constitute a recognition of quo warranto as the proper mode of adjudicating and effecting an ouster. To hold invalid all the acts of a public official because some third person asserts that he has committed an act which effects an ouster, would be intolerable. In State ex inf. McKittrick, Atty. Gen. v. Wymore, Pros. Atty., Banc, 343 Mo. 98, 119 S.W.2d 941, 119 A.L.R. 710, the court considered the Ellis case and the constitutional provision concerning nepotism (then Art. 14, § 13, Const.1875), and said, 119 S.W.2d loe. cit. 943, 945: “‘Quo warranto will also lie for the purpose of ousting an incumbent whose title to the office has been forfeited by misconduct or other cause. And in such a case it is not necessary that the question of forfeiture should ever before have been presented to any court for judicial determination, but the court, having jurisdiction of the quo warranto proceeding, may determine the question of forfeiture for itself. The question must, however, be judicially determined before he can be ousted. * * * ’ The amendment provided no remedy for enforcement. Even so, we ruled that it was self-enforcing; that it pronounced a forfeiture upon commission of the act condemned, and that quo warranto was a proper remedy under said forfeiture.” In State ex rel. McGaughey v. Grayston, Banc, 349 Mo. 700, 163 S.W.2d 335, loc. cit. 337, the Court said: “In this State a special judge is a judge de facto. Usually the authority of a de facto judge may be determined only in a quo warranto proceeding and not by way of prohibition to prevent him from doing an official act.”

In such a proceeding the Court determines the question of forfeiture and if it is sustained, ouster is ordered. State ex inf. Taylor v. Cumpton, Banc, 362 Mo. 199, 240 S.W.2d 877, 883. And see generally, State, on Inf. of McKittrick v. Williams, Banc, 346 Mo. 1003, 144 S.W.2d 98. Chapter 531 of our statutes provides specifically for proceedings in quo warranto as a remedy for the usurpation, unlawful holding or unlawful execution of any office. Section 531.050 expressly provides for a judgment of ouster. We hold that in any event the acts of the Prosecuting Attorney of Phelps County were valid, pending formal ouster proceedings and an actual judgment of ouster. It is not claimed that there ever were any such proceedings, and the point made here is denied.

The remaining points concern matters which, if anything, were trial errors. These are stated to be: inconsistencies between testimony of the State’s witnesses, supposed duress upon one witness (supported by a peculiar hearsay affidavit which states that the witness declined to sign an affidavit herself), and the asserted insufficiency of the evidence to support a conviction. None of these matters is sufficient to support a collateral attack upon the judgment of conviction. State v. Turner, Mo., 353 S.W.2d 602.

The so-called “Motion (s) for Appropriate Relief” add little or nothing to all of the foregoing, except- in that they seem to ask now for a complete transcript of the 1955 trial. They are denied. The judgment of the trial court is affirmed.

All of the Judges concur.


text:
    STATE of Missouri, Respondent. v. Ernest FRANKLIN, Appellant.
    No. 50354.
    Supreme Court of Missouri, Division No. 2.
    June 8, 1964.

      Roger M. Hibbits, St. Louis, Mo., for appellant.
    Thomas F. Eagleton, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, Mo., for respondent. ■
   STOCKARD, Commissioner.

Ernest Franklin was found guilty by a jury of the felony of assault with intent to kill with malice aforethought, and his punishment was assessed by the jury at confinement for a term of fifteen years. He has appealed from the judgment entered pursuant to the verdict.

The record before us shows that on October 23, 1962, appellant was charged by indictment with the offense of assault with intent to kill with malice aforethought, and that on November 8, 1962, he was arraigned and pleaded not guilty. The case was brought to trial on March 19, 1963, and the appellant was present with counsel. The verdict of the jury was returned on March 20, 1963, and on that day at the request of appellant the court granted “thirty days additional time within which to file Motion for New Trial, or until April 29, 1963.” No such motion was filed within the extended period for doing so. On May 20, 1963, the sentencing of appellant was set for May 27, 1963 “due to absence of defendant’s counsel” and notice was sent to counsel in which the court requested counsel’s presence. On May 27, 1963, trial counsel was permitted by leave of court to withdraw, •and on that day new counsel entered his appearance on behalf of appellant. The •cause was continued to June 17, 1963 and then to June 24, 1963. At that time a motion for new trial was filed, which was fifty-six days after the extended period to file such motion, and the extension was the maximum the trial court was authorized to grant. Supreme Court Rule 27.20, V.A.M.R. Although this motion was a nullity and should have been stricken, State v. Knicker, Mo., 364 S.W.2d 544, certiorari denied 372 U.S. 939, 83 S.Ct. 946, 9 L.Ed.2d 975, the trial court considered and overruled it on July 2, 1963. Appellant then requested a pre-sentence investigation, which was ordered by the court, and sentencing was deferred until August 5, 1963. Allocution was held on August 5, 1963, with defendant and his counsel present, and sentence and judgment were entered. Appellant then filed a motion to appeal as a poor person, which motion was sustained, and the transcript prepared at the expense of the State was approved by counsel for the appellant and for the State.

The provisions of Supreme Court Rule 27.20, V.A.M.R., as to the time for filing a motion for new trial are mandatory, and since no motion was timely filed “we are precluded from the consideration of any matters required to be preserved in a motion for new trial.” State v. Parker, Mo., 310 S.W.2d 923. See also State v. Miller, Mo., 368 S.W.2d 353. We shall, however, review those matters enumerated in Supreme Court Rule 28.02, V.A.M.R., for which to preserve for appellate'review no assignment of error in a motion for new trial is necessary.

The indictment is in the language of Section 559.180 RSMo 1959, V.A.M.S., It alleges every essential element of the offense charged, and is in the terms and form previously approved by.this court. See State v. Washington, Mo., 357 S.W.2d 92; State v. Layton, 332 Mo. 216, 58 S.W.2d 454; State v. Marlin, Mo., 177 S.W.2d 485. .The record shows formal arraignment, .that appellant pleaded not guilty, and that he and .his counsel, were present .throughout the trial.

The verdict was as follows: “We, the jury in the above entitled cause, find the defendant guilty of assault with intent to kill with malice aforethought as charged and assess the punishment at IS years.” It was signed by the foreman, and the record shows that the jury was polled and each member affirmed it as his verdict. The reference in the verdict to “as charged” is tantamount to “as charged in the indictment” and is sufficient. State v. Ryan, Mo., 275 S.W.2d 350. The place of imprisonment is not specified, but this does not affect the validity of the verdict. State v. Gray, Mo., 360 S.W.2d 642; State v. Scott, Mo., 299 S.W.2d 526. The judgment provides that the confinement shall be in the Department of Corrections of the State of Missouri. The punishment is within the limits prescribed for the offense of which appellant was found guilty. Section 559.180 RSMo 1959, V.A.M.S. Allocution was had with appellant and his counsel present, and appellant advanced no legal reason why sentence and judgment should not be pronounced. The sentence and judgment are in proper form and substance.

Appellant has filed a brief in this court. In the first two points he purports to challenge certain evidence and an instruction, matters which we do not consider on this appeal for the reasons previously stated. In his third point he asserts that he was “denied the benefit of adequate counsel at critical stages of the proceedings against him in the trial court in violation of the 14th Amendment to the United States Constitution and Article I, Section 18(a) of the Constitution of the State of Missouri.” While this point is insufficiently stated, we have examined the transcript carefully pursuant to the authority set forth in Supreme Court Rule 27.20, V.A.M.R., to consider and review matters of plain error affecting substantial rights. By turning to the argument portion of appellant’s brief we find that the alleged basis for this contention is that (1) trial counsel did not ask quesiions of the jurors on voir dire, (2) he brought out on direct examination of appellant a reference to a prior conviction, and (3) he filed no timely motion for new trial. For all that can be determined from the record, the matters referred to in the first two contentions may well have been the result of trial strategy. There certainly is nothing in the record to show that they resulted from improper or inadequate representation. As to the failure to file a motion for new trial that may have been the result of the exercise of legal judgment on the part of the one person who was present at the trial and had personal knowledge of what occurred and who was in the best position to know and determine whether a motion for new trial should have been filed. The failure to file a motion for new trial, standing alone, does not imply inadequate representation, let alone establish it. In addition, when we look to the substance of the motion that was filed by the counsel who implies dereliction of duty on the part of trial counsel, we find that the matters there presented are totally without merit, and if they had been presented in a timely motion for new trial they would have been overruled.

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.

STORCKMAN, P. J., and EAGER, J., concur.

LEEDY, J., concurs in result.


author: STORCKMAN, Judge.

text:
    STATE of Missouri ex rel. John F. BUCHANAN, Relator, v. The Honorable Richard C. JENSEN, Judge of the Circuit Court of Jackson County, Missouri, at Independence, Respondent.
    No. 50394.
    Supreme Court of Missouri, En Banc.
    June 8, 1964.
    Richard P. Sprinkle, Sprinkle, Carter, Sprinkle & Larson, Kansas City, for relator.
   STORCKMAN, Judge.

This is an original proceedings to prohibit the respondent judge from taking, entering, or exercising further jurisdiction in a personal injury action in which Alice Simpson is plaintiff and John F. Buchanan, the relator herein, is defendant. The question for decision is whether Alice Simpson’s cause of action is a compulsory counterclaim within the meaning of Civil Rule 55.45 V.A.M.R. which can only be asserted in her pleading as the sole defendant in an action commenced by John F. Buchanan prior to the time her suit was filed.

Civil Rule 55.45 was amended September 11, 1961, effective May 1, 1962, to make it conform to Federal Rule 13(a), 28 U.S.C.A. The material part of the amended rule, 55.45(a), reads as follows:

“A pleading shall state as a counterclaim any claim which at the time of filing such pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require the presence of third parties of whom the court cannot acquire jurisdiction, except that such a claim need not be so stated if at the time the action was commenced the claim was the subject of another pending action.”

The chronology of relevant events is:

April 20, 1962 — A collision occurred in Jackson County between automobiles operated by John F. Buchanan and Alice Simpson.

March 26, 1963 — John F. Buchanan filed suit for damages against Alice Simpson in the Circuit Court of Jackson County, Missouri, at Kansas City.

April 5, 1963 — Alice Simpson filed a separate and independent action for damages against John F. Buchanan in the Circuit Court of Jackson County, Missouri, at Independence.

April 23, 1963 — Service was obtained upon the defendant Alice Simpson in the suit brought by John F. Buchanan.

April 30, 1963 — Service was obtained upon the defendant John F. Buchanan in the suit brought by Alice Simpson.

May 16, 1963 — The defendant Alice Simpson filed an answer in the suit brought by John F. Buchanan. On the same day Mr. Buchanan filed a motion to dismiss in the action brought by Alice Simpson,

'June 7, 1963 — The respondent judge of the Circuit Court at Independence overruled the motion of the defendant Buchanan to dismiss the action pending in Independence.

September 10, 1963 — John F. Buchanan, as relator, filed his petition for prohibition in this court pursuant to which our provisional rule in prohibition was issued. The respondent filed a motion to dismiss and to quash the provisional rule which was taken as the respondent’s return; in this state of the record the cause was submitted on the briefs and suggestions of the parties.

There is no denial that the claims in question arise out of the same transaction or occurrence. Mrs. Simpson filed her suit ten days after Mr. Buchanan filed his; however, she was not served with summons in the Buchanan case until eighteen days after filing her suit. She filed an answer but no counterclaim in the Buchanan case within the time allowed for pleading after the service of summons. The sole question presented is stated by the respondent in this manner: “May a person against whom suit has been filed, file his own suit against the person who has sued him before he must answer in the first case, and thus avoid counterclaiming in the original action ? ” The respondent contends that by filing her independent action Mrs. Simpson was relieved of pleading her claim as a counterclaim in the Buchanan suit. The respondent relies solely upon Hoover v. Abell, Mo.App., 231 S.W.2d 217, an opinion of the Kansas City Court of Appeals rendered May 8, 1950. This was before the clarifying amendment of the rule was ordered on September 11, 1961. The controversy in Hoover involved a building repair contract. The owner of the building sued for breach of contract and thereafter the contractor filed a mechanic’s lien suit without counterclaiming in the owne'r’s damage suit. The opinion held the contractor was not compelled to counterclaim because his lien claim was “the subject of a pending action * * * at the time of filing” his pleading in the damage suit. This was the language of Civil Rule 55.45 prior to 1961 and of the Federal Rule 13 before 194S. Wc need not determine whether the construction of the former rule as made by the Kansas City Court of Appeals was justified because the rule is now changed and the purpose of the change is obvious. The amendment was ordered at the time Max v. Spaeth, Mo., 349 S.W.2d 1, 3 [7], was decided.

When the federal rule was amended in 1948, the Advisory Committee on Amendments to Rules in a note under Rule 13(a), 28 U.S.C.A., Rules 12 to 16, page 342, stated: “The removal of the phrase ‘not the subject of a pending action’ and the addition of the new clause at the end of the subdivision is designed to eliminate the ambiguity noted in Prudential Insurance Co. of America v. Saxe, 1943, 134 F.2d 16, 77 U.S.App.D.C. 144, 33-34, certiorari denied 63 S.Ct. 1033, 319 U.S. 745, 87 L.Ed. 1701. The rewording of the subdivision in this respect insures against an undesirable possibility presented und„er the original rule whereby a party having a claim which would be the subject of a compulsory counterclaim could avoid stating it as such by bringing an independent action in another court after the commencement of the federal action but before serving his pleading in the federal action.”

The 1961 amendment brought Civil Rule 55.45 into harmony with Federal Rule 13(a) and removed the ambiguity referred to in the Advisory Committee’s note. Likewise the amendment destroyed the rational foundation of the Hoover opinion and it is of no persuasive force in determining the meaning of the present rule. As the rule now stands, the claim of the pleader must be stated as a counterclaim if it arose out of the same transaction or occurrence, and jurisdiction of the required parties can be obtained unless the pleader’s claim was the subject of another pending action "at the time the action was commenced.” Italics added. A party can no longer avoid the impact of the compulsory counterclaim rule by bringing an independent action in another court after the commencement of the original action but before such party files his responsive pleading. This is the clear intent of the amendment and is consistent with the general purpose of the rule which is to avoid a multiplicity of suits and to dispose of litigation more expeditiously and properly. Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471, 474 [2]; Rape v. Mid-Continent Building Co., Mo.App., 318 S.W.2d 519, 522 [3].

As a general rule, the filing of a petition constitutes the commencement of an action. Tice v. Milner, Mo., 308 S.W.2d 697, 701 [6]; Deming v. Williams, Mo. App., 321 S.W.2d 720, 722 [2]; Maddux v. Gardner, 239 Mo.App. 289, 192 S.W.2d 14, 18 [4]; Hill-Behan Lumber Co. v. Sellers, Mo.App., 149 S.W.2d 465, 466-467 [1]. The petition in the Buchanan suit was filed on March 26, 1963, and that date must be deemed to be the commencement of the action. Since Mrs. Simpson’s claim was not the subject of a pending action at that time, it is within the purview of the Compulsory Counterclaim Rule 55.45(a).

Under the rule, Mrs. Simpson is to plead her claim and have it adjudicated as a counterclaim in the Buchanan suit under the penalty of waiving it or being es-topped to assert it elsewhere if she fails to do so. State ex rel. Fawkes v. Bland, 357 Mo. 634, 210 S.W.2d 31, 36-37[11]; Brinkmann v. Common School Dist. No. 27, Mo.App., 238 S.W.2d 1, affirmed, Mo., 255 S.W.2d 770; Williams v. Kaestner, Mo.App., 332 S.W.2d 21, 31 [13]; State ex rel. Mack v. Scott, 241 Mo.App. 674, 235 S.W.2d 106, 111 [9]; Federal Practice and Procedure, Rules Edition, Barron and Holtzoff, Vol. 1A, § 394.1, p. 584.

By virtue of Civil Rule 55.45(a), jurisdiction of Mrs. Simpson’s claim is vested in the circuit court in Kansas City in which the Buchanan action is pending, and the respondent has no power or authority to-proceed with Mrs. Simpson’s separate action while the action first begun is pending. A writ of prohibition is the proper remedy to prevent encroachment or interference by a court of co-ordinate jurisdiction with the power and authority vested in another. State ex rel. Ellis v. Creech, 364 Mo. 92, 259 S.W.2d 372, 375 [6]; State ex rel. Siegel v. Strother, 365 Mo. 861, 289 S.W.2d 73, 79 [11]; State ex rel. Mack v. Scott, 241 Mo.App. 674, 235 S.W.2d 106, 110 [5-7],

The provisional rule in prohibition is made permanent.

All concur.

HENLEY, J., not sitting.