author: HOLMAN, Commissioner.

text:
    R. P. SMITH, Chaffee Building & Loan Association, Southeast Missouri Food Dealers Association, Cape Girardeau Central Trades Union, and Cape Girardeau Carpenters Union, Appellants, v. PUBLIC SERVICE COMMISSION of Missouri, Respondent.
    No. 48516.
    Supreme Court of Missouri, Division No. 1.
    Dec. 11, 1961.

      R.' P. -Smith, Cape Girardeau, for appellants and pro se.
    Glenn D. Evans, Gen. Counsel, Thomas J. Downey, Asst. Gen. Counsel, Jefferson City, for' respondent Public Service Commission.
    Oliver & Oliver, by Jack L. Oliver, Cape Girardeau, for Missouri Utilities Co.
   HOLMAN, Commissioner.

This is an appeal from a judgment of the Circuit Court of Cole County which affirmed an order of the Public Service Commission of -Missouri' approving- a rate schedule- for electric energy furnished by Missouri Utilities Company to its customers in 'a "seven-county'southeast Missouri area. Th'e-approvéd schedule was designed to produce ah increase ' of approximately $540,000 in the annual gross revenues of the Company. The appellants (named in the caption) are -apparently - customers -of the utility. We have appellate -jurisdiction because of ■ the amount' in dispute. Smith -V-. Public Service Commission of Missouri-, Mo.Sup., 336 S.W.2d 491.

Missouri Utilities Company furnishes electrical energy at retail to forty-two communities and adjacent areas, and at wholesale to two communities in the territory here involved. Its generating facilities furnish 68% of its energy requirements and the remaining 32% is purchased, primarily from Union Electric Company. The Company also has an electric distribution system serving a portion of six counties in central Missouri. There is no physical integration between the central and southeast Missouri systems. It also operates a water system at Cape Girardeau and furnishes gas service in various communities in Missouri. As indicated, this proceeding involves only the electrical rates applicable to the southeast Missouri operations of the Company. A number of the cities and towns located in the area protested the increase and their attorneys appeared before the Commission at the various hearings but none of the-cities appealed from the order involved.

The amount of-the increase sought in the application - (filed July 27/ 1959)- was $608,-157. The Commission, by its order, allowed the amount sought after deducting one item- of expense which it did not consider proper. That item' of $65,000 represented an increase in franchise taxes which the Company had reason to believe would be •levied by the cities of the area in the event the rate increase was approved.

There had been no appreciable increase in the rates here involved since 1925. One of the officials of the Company, T. F. Walz, Jr.., testified that the increased revenues had not kept pace with the increased expenses and. hence there had been a continuing decline in earnings. He further stated that anticipated construction requirements during the five-year period following the date of the application would entail expenditures totaling $5,700,000;, that most of said sum would have ’ to' be obtained by the sale of long-term securities, and that “the company will have to keep its earnings up in order to make its. securities attractive to the investors.”

J. E. Flanders, a public utility consultant, was employed by the Company “to 'make the necessary studies and to prepare exhibits to show the Company’s earnings under its present rates, to determine what the Company’s earnings should be, and to prepare suggested rates designed to yield the gross revenue necessary to enable the Company to earn a reasonable return on the value of its property used in supplying electric service in its southeast division.” His testimony and exhibits indicate that on December 31, 1958, the-value of the Company’s electric plant was (1) $10,863,217 on the basis of original cost less depreciation, (2) $17,729,045 on the basis of-“trended” (present day cost) value, and (3) $14,514,713 on the basis of estimated fair value. According to Mr. Flanders the rate of return which the Company received upon its investment for the year 1958 was 4.78% when computed on the “net plant” basis and 3.65% on the fair value basis. The adjusted net plant, rate base arrived at by the staff of the Commission was $11,215,-870.

In its order of January 21, 1960, the Commission made findings and conclusions as follows: “[T]hat Applicant’s presently effective rates for electric service in Southeast Missouri will not yield sufficient revenues to enable Applicant to perform the functions with which it is charged and remain financially healthy. * * * In order to make its securities attractive to prospective purchasers, Applicant’s earnings must yield a higher rate of return than is now being realized. * * * [T]hat for the purposes of this case the fair value of Applicant’s electric plant in service, plus material and supplies, etc., is $13,700,000. * * * [T]hat the pro forma income statement * * * should be adjusted” by “elimination from the revenues, to be provided by the proposed increased rates, of approximately $65,000 included therein for the purpose of compensating for the increased franchise tax rates” which would result in a “net operating income of $743,-602.38” and “would yield a rate of return of 5.43% per annum on the $13,700,000 fair value rate base hereinbefore determined by the Commission to be appropriate and would yield a rate of return of 6.63% per annum on the net original cost rate base of $11,215,870.00. The Missouri Utilities Company will be authorized to file for the approval of the Commission revised schedules of rates for electric service in Southeast Missouri, calculated to increase gross revenues by approximately $543,000 when applied to sales during the year 1958.”

The Company filed its revised schedules of rates and they were approved in an order entered on January 30, 1960. Thereafter, upon motion of appellants a rehearing was granted to consider the revised schedule, particularly as concerned the question of discrimination in the rate applicable to commercial power customers. That hearing was held and the schedule of rates was again approved in a supplemental order entered on April 7, 1960. That order contained findings as follows:

“The Company by its Exhibit No. 8 shows that its annual revenues under the new rates will be increased by $539,985.00. This will amount to an increase of something like 15.2% for its Southeast Missouri system. Exhibit No. 8 also shows that the residential service under the proposed rates will increase the revenues something like 15.4%. Commercial service will be increased slightly over 20% and commercial power about 27%. Industrial power would be increased something like 26.2%. The Commission is conscious of the fact that on the percentage basis the commercial and industrial rates are increased a greater amount than the residential service, however, a percentagewise increase straight across the board if followed in fixing new rates does not in most instances bring about an equitable distribution of the increased costs. For example, an air-conditioning service does not improve the class or system load factor for either a commercial or residential consumer or for a commercial power consumer. This is a seasonable service and does not earn as low a rate as most other services furnished for commercial and residential use. The other usage of the service is a year round service and as a classified service earns a lower rate than air-conditioning service which to date is in use only three to five months in the year.
“In designing rate schedules the cost of furnishing those new services should be reflected in the rates. A percentagewise basis generally requires a greater increase because of the short hour usage. In comparing commercial usage of air-conditioning service with similar residential service it should be kept in mind that commercial usage is, many times, on an eight-hour basis, whereas domestic usage will approach twenty-four hour usage during the air-conditioning season * * *.”

Upon this appeal the appellants contend that ‘'(1) The order of the Public Service Commission, affirmed by the circuit court, is erroneous in that it approves a rate schedule for electric service which is discriminatory,” and (2) “the order of the Public Service Commission, affirmed by the circuit court, is erroneous in finding without substantial evidence to support such finding, that net revenues of the utility were declining under rates in effect prior to the increase ordered.”

“Our function is not to substitute our judgment for that of experts in the field of rate making, but rather to determine whether the experts’ order was lawful and reasonable. ‘In a question of rate making there is a strong presumption in favor of the conclusions reached by an experienced administrative body after a full hearing * * *.’ State ex rel. and to Use of City of St. Louis v. Public Service Commission, 326 Mo. 751, 771, 34 S.W.2d 507, 515. ‘Upon this review, the question is not whether the court, if the matter were before it, would make the same order made by the commission, but only whether the order as made by the commission is reasonable and lawful. * * * To justify a reversal of an order of the commission falling within its discretionary power on the ground that such order is unreasonable, it must appear that the action of the commission was arbitrary or without reasonable basis, and the burden of showing that the commission’s order * * * is unreasonable or unlawful is upon the’ appellants here. State ex rel. Alton Transp. Co. v. Public Service Commission, 330 Mo. 1, 9, 49 S.W.2d 614, 617 (1-4); Section 386.430. ‘In all trials and proceedings growing out of the exercise of the powers of the commission before the courts the rates and schedules ordered by the commission are prima facie lawful and reasonable, and the burden of proof is upon the party seeking to set aside “any determination, requirement, direction or order of said commission” * * *. The order of the commission fixing the value of the company’s property, the rate which it is allowed to earn on that property, .and the rates to consumers are prima facie reasonable and lawful, * * State ex rel. City of St. Louis v. Public Service Commission, 329 Mo. 918, 927, 47 S.W.2d 102, 104 [1, 2].” State ex rel. City of West Plains v. Public Service Commission, Mo. Sup., 310 S.W.2d 925, 933.

The contention of appellants that the revised rate schedules are discriminatory is primarily directed to rates coming under the classification of commercial power and is based upon the fact (1) that the greater percentage of increase was made in that category, and (2) that in making the revision of rates to comply with the $65,000 reduction in proposed revenue no reduction was made in that classification.

It is true that the percentage increase in rates applicable to customers coming under the classification of commercial power is considerably larger than the increase applied, for example, to residential service. However, that fact alone does not indicate that the commercial power rate is- unfair or unreasonable or that there was unlawful discrimination. It may well have been that the old rate applicable to commercial power was much too low as compared with the rates charged in other categories. “A discrimination as to rates is not unlawful where based upon a reasonable classification corresponding to actual differences in the situation of the consumers or the furnishing of the service; * * *. In accordance with the foregoing principles, valid reasons may exist for different rates for current furnished for lighting purposes from that for power purposes. A substantial difference constituting a reasonable basis for classification may be found in the time of the use of the service or the manner of service. * * * [T]he reasonableness of the basis of the classification must appear; and whether a discrimination is unlawful and unjust or the circumstances substantially dissimilar is usually a question of fact.” 43 Am.Jur., Public Utilities and Services, § 178, pp. 689, 690.

Whether the higher precentage increase for users of commercial power constituted unlawful discrimination is a question of fact and the burden is upon the appellants to point to evidence which would warrant the conclusion that there was such discrimination. This they have wholly failed to do. However, in considering the reasonableness of the higher percentage increase we find testimony indicating that such was imposed because (1) the Company, must at all times be prepared to meet a high demand which is often used only occasionally, or, stated another way, the customer must pay for the privilege of being able to put a heavy load on the line at any time, and (2) many of the commercial power customers use the service only a portion of the day or for a short time during the year. Examples cited were the use of commercial air-conditioners for 8 hours per day in many instances as compared to frequent residential use for 24 hours daily, and the operation of cotton gins for only a few weeks during the year. It seems clear that the maintenance of facilities to meet possible load demands which are utilized infrequently is usually unprofitable to the utility.

The $65,000 reduction in the proposed rates was ordered when the Commission eliminated an item of expense in that amount which had originally been included to meet anticipated increases in franchise taxes. When the schedules were revised no reduction was made in the commercial power rates. Two reasons were assigned by the witnesses for the failure to so reduce. The first was that a large percentage of these customers are located outside of the cities in the area and there is no franchise tax applicable to them. Since the item eliminated had been originally included to provide for payment of anticipated franchise taxes (and added to the proposed rates of customers located in cities) it was thought proper to apply the reduction to classifications primarily located in municipalities. The second reason advanced was that because of the "low load factor" heretofore discussed the -original rates proposed for the commercial power classification were fair and reasonable as compared to other classifications without any reduction on account of the item in question.

The Commission carefully considered the revised schedule of rates at the rehearing heretofore referred to and concluded that said rates were “not discriminatory or unduly preferential.” There is a strong presumption in favor of the correctness of that conclusion and we are not prepared, upon the evidence before us, to say that the Commission erred in so finding.

Appellants’ second contention is that there was not sufficient substantial evidence to support the finding that the net earnings of the Company were declining under the rates in effect prior to the increase ordered. That contention actually relates to a nonessential issue. The Company was not required to prove that its earnings were declining. In a general way it may be said that the vital issue in this case was whether the proposed increased rates were just and reasonable from the standpoint of the public and at the same time sufficient to enable the Company to maintain proper service and earn a fair return upon its investment. State ex rel. Hotel Continental et al. v. Burton, Mo.Sup., 334 S.W.2d 75.

In support of their contention that the Company’s net earnings were not shown to have decreased and, in effect, that the increase in rates should not have been granted, appellants point to the fact that (1) the Company’s bonds have always sold at par, (2) dividends have been paid each year on the common stock, (3) the earned surplus has increased regularly, and (4) in six of the ten years preceding the application the net income of the Company had increased. These facts are not reliable proof that the instant rate increase was not necessary or reasonable because they relate to the financial condition of the Company as a whole and include services and areas not here involved. We think that a .reference to our brief statement of facts will disclose that there was ample evidence to support the findings and orders of the Commission. Appellants have failed to sustain the burden of showing that the orders entered by the Commission in this case were unreasonable or unlawful.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER. CURIAM.

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

All concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Rachel GOLDBLATT, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Respondent.
    No. 48166.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1961.
    ■ James C. Jennings, Samuel A. Goldblatt, St.- Louis, for plaintiff-appellant. .
    James Ruddy, St. Louis, for respondent.
   BARRETT, Commissioner.

In this action by Mrs. Goldblatt to recover’ dámages for injuries sustained when she was a passenger on a bus a jury returned a verdict in favor of the defendant. The trial court overruled her motion for a new trial and she has appealed. Mrs. Goldblatt submitted her case upon the assumption that res ipsa loquitur was applicable; in so far as material here, “that at said time and place said streetcar did then and there jerk and jolt in a sudden, unusual and violent manner, and plaintiff was thereby caused to sustain injury and damage, * * * then you are instructed that such facts * * * are sufficient circumstantial evidence to warrant a finding by you that the defendant was negligent and you may so find, unless you find and believe from other facts and circumstances in evidence that the occurrence was not due to the defendant’s negligence, * * Against this submission the defendant offered and the court gave, among other instructions, instruction 6, the first sentence of which informed the jury that the burden of proof was upon the plaintiff. The second sentence was this:

“You should not find that the defendant was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence, if you find and believe from all the evidence in the case that the defendant was, not negligent, and if you do find and believe from all the evidence in the case that the defendant was not negligent, then your verdict should be in favor of the defendant.”

The only question briefed and argued is that the second sentence in instruction 6 is manifestly erroneous and that therefore this court should grant plaintiff a new trial.

The objections of course are all directed to the phrase “from the mere fact of the occurrence shown by the plaintiff’s evidence.” It is said that the instruction was confusing, misleading and contradictory in that it excluded from the jury’s consideration (a) “the facts of the occurrence mentioned in the plaintiff’s evidence,” (b) the injuries plaintiff sustained, and (c) any “facts, actions, omissions or circumstances that may have caused the streetcar to jerk and jolt and injure plaintiff.” And finally, in all these connections, it is pointed out that the court has criticized and sometimes condemned “mere fact” instructions in cases dependent on proof by ■circumstantial evidence (Citizens Bank of Festus v. Missouri Natural Gas Co., Mo., 314 S.W.2d 709, 714-715, 72 A.L.R.2d 855), •or, “particularly in res ipsa loquitur or other circumstantial evidence cases.” Grote v. Reed, (Mo.) 345 S.W.2d 96, 102.

Despite protestations to the contrary and the nicety of some of the distinctions, it is most likely, as a matter of rationale, that the “mere fact” cases are in irreconcilable conflict. Nevertheless, this case can be made to fit the framework of the pronouncements and it is not necessary to rationalize or examine the underlying principles. In the first place, the plaintiff’s principal instruction and instruction 6 are admittedly rescripts of the suggested instructions in Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, a res ipsa loquitur case. And although not mentioned in the cases criticizing the “mere fact of the occurrence” instructions, Harke v. Haase has not been overruled. And, the author of Citizens Bank of Festus v. Missouri Natural Gas Co., supra, was certainly not unmindful of Harke v. Haase. In the second place, in this case the plaintiff’s motion for a new trial has been overruled and the problem here is not whether the trial court was justified in granting a new trial (Jones v. Kansas City, (Mo.) 243 S.W.2d 318, 321), the question is whether the giving of the instruction is reversible error and demands the granting of a new trial by this court.

Unlike Citizens Bank of Festus v. Missouri Natural Gas Co., this case is not dependent on circumstantial evidence in its conventional sense, whatever Mrs. Gold-blatt may have pleaded or submitted, she did not in fact rely on the proof of other events and circumstances to establish the fact in issue, the defendant’s negligence. She and her witnesses testified that the streetcar operator did not stop at the regular stop, instead he slackened the speed of the streetcar and “while slowing made that quick, that fast turn” — one of the witnesses said that it was an “abnormal” turn, “enough to shake anybody.” Mrs. Gold-blatt said that the streetcar did not stop at the usual place, a friend pulled the cord and she said, “I started to walk toward the front of the streetcar, and as I was walking the streetcar made á violent jerk and turned, a fast turn and I fell to the front against that (upright) steel rod or bar.” Thus, proof of the principal issue is not dependent on circumstantial evidence or alone on the fact of the occurrence of either the jerk and jolt or the plaintiff’s fall and injury and therefore may not be “a true res ipsa loquitur case.” Lukitsch v. St. Louis Public Service Co., 362 Mo. 1071, 1078, 246 S.W.2d 749, 752. Incidentally, the defendant had no knowledge of such an occurrence, if anyone was injured or there was an “occurrence,” the streetcar operator had no knowledge of the fact. The plaintiff’s principal instruction, in absolving the defendant, uses the word “occurrence,” and the defendant’s instruction says “from the mere fact of the occurrence” and does not specify “the mere fact that the plaintiff, Mrs. Bertie E. Rittershouse, was injured, by a fall upon defendant’s street.” Rittershouse v. City of Springfield, Mo., 319 S.W.2d 518, 520. In any event, in view of the precise description of the “occurrence,” it is not readily apparent that the nature and extent of plaintiff’s injuries would explain the occurrence or be an additional circumstance supporting the inference of the defendant’s negligence. Grote v. Reed, Mo., 345 S.W.2d l. c. 101. Compare: Orris v. Chicago, R. I. & P. Ry. Co., 279 Mo. 1, 214 S.W. 124.

And again, instruction 6 simply says “from the mere fact of the occurrence',” it does not say “ ‘the mere fact of itself that plaintiff slipped’ ” (Dill v. Dallas County Farmers’ Exchange, Mo., 267 S.W.2d 677, 680), or, “the mere fact of itself that there was a fire” (Citizens Bank of Festus v. Missouri Natural Gas Co., supra [314 S.W.2d 714]), and thus by its terms the instruction does not exclude from the jury’s consideration either the facts of the “occurrence” or any acts, omissions or circumstances “that may have caused the streetcar to jerk and jolt and injure plaintiff.” The instruction is entirely abstract, it- does not mention that plaintiff fell or was injured and except technically, as the word “occurrence” may be said to embrace all the circumstances, the instruction does not in point of fact exclude from the jury’s consideration the speed, turning, or jerking and jolting of the streetcar or any inference to be drawn from the circumstances. Considering that the instructions may be read together without misunderstanding and that instruction 6 truly had to do with the burden of proof, it may not be said that it was confusing or that it withdrew anything from the jury’s consideration, or, in short, in the circumstances of this case and solely because of the giving of the instruction, that plaintiff' is entitled to a new trial. Harke v. Haase, supra; Lukitsch v. St. Louis Public Service Co., supra; Grote v. Reed, supra; Stephens v. St. Louis Public Service Co., Mo., 276 S.W.2d 138, 142; Superior Ice & Coal Co. v. Belger Cartage Service, Inc., Mo., 337 S.W.2d 897, 907-908. And, in accordance with these views, the judg-mént is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All concur.


author: DALTON, Judge.

text:
    STATE of Missouri, Respondent, v. William DONNELL, Appellant.
    No. 48601.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1961.
    Motion for Rehearing or for Transfer to Court en Banc Denied Dec. 11, 1961.

      William Donnell, pro se.
    Thomas F. Eagleton, Atty. Gen., Carl R. Gaertner, Sp. Asst. Atty. Gen., for respondent.
   DALTON, Judge.

This is an appeal from a conviction of robbery in the first degree by means of a dangerous and deadly weapon and a sentence for said offense under the Habitual Criminal Act to 99 years’ imprisonment in the state penitentiary.

The indictment, filed in the Circuit Court of the City of St. Louis on January 26, 1960, charged defendant with the commission of said offense in said city on May 22, 1959, and further charged two prior felony convictions, to wit: (1) Armed Robbery in the Criminal Court of Cook County, Illinois, November 3, 1932, with a sentence to imprisonment in the Illinois State Penitentiary at Joliet, Illinois, for a term of one year to life, from which sentence he was first paroled on October 2, 1941, and re-paroled on May 26, 1958, and (2)' a conviction for robbery in the first degree by means of a dangerous and deadly weapon on March 10, 1944, in the Circuit Court of the City of St. Louis, with a sentence of 15 years in the Missouri State Penitentiary, from which sentence he was discharged on February 25, 1954. See Secs. 560.120, 560.135 and Sec. 556.280 RSMo 1959, V.A.M.S.

Defendant, represented by counsel, entered a plea of not guilty and the cause was tried to a jury. At the close of the State’s evidence the defendant’s counsel advised the court that “the defense has no witnesses”, whereupon, outside the hearing of the jury, the court heard evidence concerning the prior convictions alleged in the indictment. Defendant’s counsel objected to the admission of such evidence on the ground that the Habitual Criminal Act, as amended, Laws 1959, S.B. No. 117, was an “ex post facto law * * * no saving clause”; and that “these crimes were committed prior to the enactment of the law.” The objection was overruled and evidence heard from which evidence the court, out of the presence of the jury, made a finding that “ * * * on the 10th day of March, 1944, at the City of St. Louis, in the Circuit Court of the City of St. Louis, Missouri, the defendant was convicted of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon and was duly sentenced by said Court and was imprisoned in accordance thereto to the Missouri State Penitentiary'and was duly discharged therefrom after and -upon lawful compliance with said sentence on the 25th day of February, 1954; the Court further finds that in the Criminal Court of Cook County, Chicago, Illinois, the defendant was duly convicted of the offense of Armed Robbery, which offense, if committed in the State of Missouri would be punishable under the laws of the State of Missouri by imprisonment in the Penitentiary, and in accordance with said conviction was duly sentenced by said Court to an imprisonment in the Illinois State Penitentiary at Joliet, Illinois, in accordance with said sentence; and that after and upon lawful compliance- with said sentence was finally discharged by parole on May 26, 1958, * * *.”

. Thereafter, the guilt or innocence of the defendant of the offense charged in the indictment was submitted to the jury and a verdict returned finding “the defendant guilty of Robbery in the first degree by means of a dangerous and deadly weapon, as charged.” The court fixed defendant’s punishment at 99 years’ imprisonment in the state penitentiary and defendant was subsequently duly sentenced in conformity to the verdict of the jury and the court’s order.

In the motion for a new trial and in the pro se brief filed in this Court by defendant-appellant there is no assignment of error based on the alleged insufficiency of the evidence to sustain the verdict of the jury. The issue of the sufficiency of the evidence is mentioned in the typewritten argument portion of the brief. Briefly, the State’s evidence tended to show that one Harry Bass, a resident of University City, was engaged in business at 2700 Howard Street in the City of St. Louis, where he owned and operated a grocery, meat market and package liquor store, as the B & B Market. On May 22, 1959, Mr. Bass was in the store and about 9:30 a. m. defendant came in and stayed a few riiinutes, made a small purchase and left. Although- Bass was' not personally acquainted with defendant, he had seen him in the vicinity of the store about a week prior to the date in question. Later in the morning of May 22, defendant returned to the Bass store after his first visit and asked if Bass had seen “Boogie” (Andrew Cage), whom Bass had known for years. “Boogie” had been in the store and out between defendant’s visits to the store. Defendant then left, but soon returned for a third time when only one customer, Norman Benson, was in the store. Defendant walked swiftly up behind Benson, who had entered up ahead of him, and stuck something in his back. Then he turned around and told Bass it was a holdup, not to move, to turn around and not look at him. Defendant then made Benson and Bass go into the back room and to the “cooler”, where he told Bass to open the door and get in there. Defendant had a black-handle, silvery-looking gun in his hand. It was a revolver, not an automatic. After the door of the “cooler” was closed and Bass thought he had remained long enough, he started to come out, but defendant told him to get back in there or he would kill him. After four or five minutes Bass came out and found the cash register open and the money gone. Approximately $100 was missing and seven pint bottles of scotch whiskey. The matter was reported to the police and, subsequently, Bass viewed a number of pictures brought to him by police officers. None were of defendant. On a later occasion another group of photographs were brought out and Bass promptly identified a picture of defendant. Subsequently in a line-up at the police station and later at the trial he identified defendant as the person who committed the robbery. The evidence was substantial and sufficient to support the verdict. State v. Verkler, Mo.Sup., 335 S.W.2d 37; State v. Turner, Mo.Sup., 320 S.W.2d 579.

In appellant’s pro se brief filed in this ■Court he first complains of only three matters, to wit: (1) the sufficiency of the indictment under Sec. 556.280 RSMo 1949, V.A.M.S.; (2) the introduction of evidence •of his prior convictions over his objection that the State did not prove he had complied with his Illinois sentence; and (3) “Reference and inference to appellant’s character and reputation by the prosecutor in his closing statement to the jury.”

In support of his first assignment he says that the indictment is fatally defective “in that it charges the offense * * * with allegations of prior convictions thus bringing it within the scope of the Habitual Criminal Act, but it does not show nor allege that appellant had been discharged by pardon nor upon compliance with his Illinois sentence, thus rendering the indictment invalid.” This assignment cannot be sustained for the reason that the indictment set forth in the transcript on appeal shows the following allegation: * * * that the said William Donnell was re-paroled from the Illinois State Penitentiary at Joliet, Illinois on May 26, 1958.” While the indictment does not plead in express words that appellant had been discharged by pardon or upon compliance with sentence, the facts alleged are sufficient to show compliance by alleging the parole on May 26, 1958, prior to the alleged date of the offense for which appellant was being prosecuted, to wit: Robbery in the first degree by means of a dangerous and deadly weapon on May 22, 1959. The sufficiency of such an allegation and proof had previously been established in a cause to which appellant was a party. State v. Donnell, 353 Mo. 878, 184 S.W.2d 1008, 1010(4, 5). And see State v. Murphy, 345 Mo. 358, 133 S.W.2d 398, 400, and State v. Asher, Mo.Sup., 246 S.W. 911, 912. Appellant further argues that he was convicted of an offense alleged in the indictment to have occurred on May 22, 1959, and the burden rested upon the State to show appellant had been discharged upon pardon or by compliance with his Illinois sentence at the time he was put on trial on August 8, 1960; and that the State failed to so prove. There is no merit in the assignment. Appellant’s transcript filed in this Court shows that the State offered and the Court received in evidence a certified copy of the records kept in the office of the Warden of the State Penitentiary at Joliet, Illinois, with reference to appellant, in part as follows: “Returned from parole March 6, 1954. Re-paroled May 26, 1958.” This evidence was sufficient to support the trial court’s finding that prior to May 22, 1959, the date of the alleged offense for which appellant was being prosecuted, he had been discharged from the Illinois sentence “after and upon lawful compliance with said sentence.” The evidence of appellant’s prior conviction and subsequent discharge upon compliance with his Illinois sentence was properly admitted and sufficient. State v. Hagerman, Mo.Sup., 244 S.W.2d 49, 53; State v. Donnell, supra.

Appellant further insists that, since the offense for which he was being prosecuted was alleged to have occurred on May 22, 1959, and since the indictment was returned on January 26, 1960, the repeal and reenactment of Sec. 556.280 RSMo 1949, V.Á.M.S., did not affect the offense charged to have happened on May 22, 1959, or the trial, and that the prior section applies. It has been noted that defendant’s counsel objected to the admission of evidence of prior convictions before the court and out of the hearing of the jury on the ground that the reenactment was an ex post facto law and the crimes were committed prior to its enactment. Defendant’s motion for a new trial also charged that “the court erred in failing to strike from the indictment that portion pertaining to the habitual criminal aspects of the case inasmuch as the statute under which action was brought was made effective subject to the date of the alleged crime.” The transcript, however, fails to show that any such motion to strike was presented to or ruled upon by the court at any time, and, if presented, is not preserved for review. The motion for a new trial further charged that the court erred in failing to submit to the jury the question of punishment, and in so doing deprived defendant of his constitutional right for a trial by jury. Appellant’s present assignment that Sec. 556.280 in the form prior to repeal and re-enactment applied to his case apparently seeks to develop the last mentioned assignment of his motion for a new trial.

As stated, the offense for which appellant was prosecuted was alleged to have been perpetrated on May 22, 1959. Sec. 556.280 as amended became effective on August 29, 1959. The amended Act was properly applied in this case, since it has been repeatedly held that the amendment was procedural only and was not an ex post facto law within the meaning of Sec. 13, Art. I of the Constitution of Missouri 1945, V.A.M.S., or otherwise invalid or inapplicable. State v. Morton, Mo.Sup., 338 S.W.2d 858, 863; State v. Griffin, Mo.Sup., 339 S.W.2d 803, 806; State v. Payne, Mo.Sup., 342 S.W.2d 950, 955; State v. Wolfe, Mo.Sup., 343 S.W.2d 10, 12; State v. Williams, Mo.Sup., 343 S.W.2d 58, 61; State v. Chamineak, Mo.Sup., 343 S.W.2d 153, 163(20); State v. Colbert, Mo.Sup., 344 S.W.2d 115, 119; and State v. Adamson, Mo.Sup., 346 S.W.2d 85, 87. We must an'd do hold that the Act was procedural in nature and did not create a new crime, increase the punishment for the offense charged in the indictment, or otherwise come within the terms of an ex post facto law. The trial court properly proceeded under the new Act, and determined the punishment since this Court has held that the change was only procedural and that the new Act might properly be applied .upon trial for an offense committed before its effective date. No constitutional rights of the defendant were violated.

Concerning appellant’s, complaint of the prosecutor’s alleged “closing statement to the jury”, it is sufficient to say that no such statement appears from the transcript presented on this appeal and no such complaint appears in defendant’s motion for a new trial. The matter is not before us for review. State v. Hite, Mo.Sup., 298 S.W. 2d 411, 413(4, 5).

Appellant further contends that the court erred to the prejudice of appellant by denying appellant’s request, alleged to have been made by appellant on September 7, 1960, at the time his motion for a new trial was overruled and allocution granted prior to sentence; that -he -(.appellant) be allowed to prove that State’s witnesses Harry Bass and Det. Sgt. James Reddick had “deliberately committed perjury.” No such request appears in the transcript on appeal nor does the record show the filing of any such motion in support of such request. As stated, the record shows that at the close of the State’s case defendant’s counsel announced that “the defense has no witnesses” and the cause was submitted on the evidence presented by the State. The assignment is overruled.

Because of the apparent inadequacy of appellant’s pro .se brief we have examined the assignments of error stated in the motion for a new trial which are sufficiently specific, to comply with Supreme Court Rule .27.20 V.A.M.R. State v. Mace, Mo.Sup., 295 S.W.2d 99; State v. Russell, Mo.Sup., 324 S.W.2d 727.

One assignment is directed to the action of the.court in overruling an objection directed to the testimony and qualification of a witness for the State. It is contended that the court erred in permitting the Deputy Clerk of the Circuit Court for Criminal .Causes, City of St. Louis, State of Missouri, to identify a particular book in his possession on the witness stand as Book No. 9 of Division 12 of said court containing the records and proceedings of said court as kept in the normal course of business. The reason assigned in support of the objection being that, “He’s the Deputy Clerk, not the Clerk himself. He does not have control of these records.” The objection was overruled and it appeared that page 115 of Book No. 9 showed the judgment of conviction and sentence of defendant on March 10, 1944, for robbery in the first degree by means of a dangerous and deadly weapon. Another record book, also identified, showed that the conviction was affirmed by the Supreme Court on February 21, 1945. See State v. Donnell, supra. The witness was qualified to identify the mentioned volumes and the evidence was admissible.

A further assignment of the motion, for a new- trial is that, “The court erred in al-r lowing, over defendant’s objection, the photograph of the defendant to be examined by the witness, Harry Bass, said photograph being obviously a Police Photograph thus apprising the jury of the fact of the defendant’s criminal record, even though this criminal record was not in issue.” The record shows that, after witness Bass had told of the police bringing pictures to him and asking him about the details of the robbery and finally bringing a picture, which he identified as a picture of defendant, the State asked that a photograph be marked State’s Exhibit 1. Thereafter, out of the hearing of the jury, defendant’s counsel said: “I object to this photograph. It’s admission is highly prejudicial.” No reasons were assigned and the objection overruled “at this time.” Thereafter, the exhibit was presented to the witness and he said it was like the photograph that was brought out for him to look at shortly after the robbery. The picture was never offered in evidence. There is nothing in the record to support the allegation in the motion for a new trial that the photograph was obviously a police photograph apprising the jury of the fact of the defendant’s criminal record. The allegation of the motion does not prove itself and there is nothing in the record indicating that the photograph was presented to the jury. No error appears from the record presented.

There is a further assignment in the motion for a new trial that the court erred in giving each and every instruction. This assignment is insufficient as it is too vague and indefinite to preserve anything for appellate review. State v. Jordan, Mo.Sup., 235 S.W.2d 379, 383.

The transcript of the record presented on this appeal further shows that subsequent to the time defendant’s motion for a new trial was overruled on September 7, 1960, and subsequent to the imposition of sentence and judgment on September 7, 1960, and after an order had been entered on the same date permitting defendant to prosecute' his appeal as a poor person, the defendant, on September 21, 1960, caused a document entitled “Supplement to Motion for a New Trial” to be filed with the Clerk of the Circuit Court and, thereafter on October 6, 1960, caused a further document entitled “Motion for Arrest of Execution of Judgment” to be so filed. These documents filed subsequent to the entry of the judgment appealed from have no place or significance insofar as this appeal is concerned and are disregarded.

We have examined the record as required by Supreme Court Rule 28.02, and find no error respecting the sufficiency of the information, verdict, judgment and sentence.

The judgment is affirmed.

All concur.


author: STOCKARD, Commissioner.

text:
    Mary Purcell KIRKWOOD and Joseph A. Kirkwood, for and on behalf of themselves and all others similarly situated and interested, Appellants, v. CITY OF ST. LOUIS, a municipal corporation, and V & M Contracting Company, a corporation, Respondents.
    No. 48449.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1961.

      Joseph A. Kirkwood, St. Louis, for appellants.
    Thos. J. Neenan, City Counselor of the City of St. Louis, Aubrey B. Hamilton, Assoc. City Counselor, St. Louis, for City of St. Louis.
    Sylvan Agatstein and Shifrin, Treiman, Agatstein & Schermer, St. Louis, for respondent, V & M Contracting Co.
   STOCKARD, Commissioner.

Plaintiffs brought this action to enjoin the City of St. Louis from constructing a highway through a portion of a public park and to challenge the validity of the municipal bonds issued to pay for said highway. After a hearing the trial court dismissed the petition and plaintiffs have appealed.

Located within the western central portion of the City of St. Louis is a public-owned rectangular-shaped tract of land consisting of 1,380 acres known as Forest Park. The city proposes to construct the Rock Island Expressway, a four-lane highway, across the northeast corner of the park to expedite the rapid movement of vehicular traffic from the downtown area of the city to the western city limits. Appellants are residents and taxpayers of the City of St. Louis who own land abutting the park, and they contend that the construction of the expressway across the corner of Forest Park will constitute an unauthorized and illegal diversion of park land from park purposes.

By reason of its size and location in relation to the business and residential areas of metropolitan St. Louis, Forest Park is a barrier to through traffic. The movement of traffic through the park, particularly in rush hours, is heavy, congested and slow. The city is engaged in constructing in an area east of Forest Park what is known as the Mill Creek Development Project which will result in a substantial increase in traffic through Forest Park if it is not otherwise diverted. The Rock Island Expressway, as proposed, enters the park on the east side near the northeast corner by passing beneath Kingshighway Boulevard, it then runs in a northwesterly direction and follows generally the route of an existing railroad track, and leaves the park on the north side under Lindell Boulevard. It will occupy approximately six acres of park land.

The City of St. Louis devoted much effort and expended substantial sums of money in the study of its traffic problem. The location of the Rock Island Expressway was first determined in 1948 as the result of a comprehensive study. The plan was approved that year by the city plan commission. The evidence clearly establishes that the construction of the Rock Island Expressway where proposed will free or substantially reduce heavy through traffic now using the narrow winding park drives, prevent or at least substantially reduce a traffic bottleneck at the park, reduce or eliminate an anticipated increase in park traffic resulting from the Mill Creek Development Project, and provide a presently needed modern highway for the rapid mass movement of east-west vehicular traffic. As may be expected in every such situation, there are some who do not agree with the proposed location of the Rock Island Expressway, and possibly some who do not agree with its need. However, those who are charged by law with the duty and are vested with the discretion of determining the location of the expressway have made their decision in the matter, and it cannot be said, assuming the legal authority exists for the expressway to cross the northeast corner of Forest Park, that they have acted unreasonably or arbitrarily. In fact, we do not understand the plaintiffs to so contend.-

The source of title of the City of St. Louis to the land constituting Forest Park stems from an act of the legislature of Missouri, Laws of Missouri 1874, p. 371, which created the park, defined its boundaries, and authorized “the county court of St. Louis county * * * to purchase or condemn all the lands embraced within said boundaries, for the purposes of said public park.” Title to the land affected by the expressway was obtained by condemnation. See County Court of St. Louis County v. Griswold, 58 Mo. 175. The decree or judgment in condemnation is not in the record, but the parties stipulated that “the Circuit Court of the County of St. Louis, Missouri, did find and decree that the fee to all of the said real estate * * * was in the County of St. Louis and the people thereof.” In 1876 the City of St. Louis ceased to be a part of St. Louis County, and the “Scheme for'the Separation df thé"Governments-of St.'Louis City and County” provided that “All the * * * public parks and .property of every character and description heretofore' owned and controlled'by the County of St. Louis within -the limits [of the city] as extended * * * aré hereby transferred and made over to the City of St. Louis.”

The cases of this and other jurisdictions have established ás .a general rule that the extent to which the use of park property may ,be changed is governed, at least to some extent, by a consideration of the manner in'which t-he property was acquired. That is,' whether the land was obtained- by' dedication for park purposes by the owner,' or by purchase or-condemnation by the municipality. 39 Am.Jur.' Parks, Squares, and Playgrounds'§ 21; Annotation, M8 A.L.R; 1247-, 63 A.L.R. 48S, 144 A.L.R. 488. It is-generally held that if a dedication--oí property for public use is by a private ‘party for a -‘specific or defined purpose, neither the legislature nor a municipality has any power to authorize the use of the property for any purpose other than the one designated. 26 C.J.S: Dedication § 65; Cummings v. City of St. Louis, 90 Mo. 259, 2 S.W. 130; Price v. Thompson, 48 Mo. 361; Rayor v. City of Cheyenne, 63 Wyo. 72, 178 P.2d 115, 117; Hyland v. City of Eugene, 179 Or. 567, 173 P.2d 464. However, where a park is established by statutory authority, - or when a municipality purchases land and establishes a park thereon, the uses to which it may be put are' much broader than where the land is dedicated by individuals to park purposes. “Land acquired by a'municipality by eminent domain, -or by the expenditure of public funds, for public use ás a park, and not subject to the terms of any gift, devise, grant, bequest, or other -trust of condition, may be devoted to some other public use by legislative mandate.” 39 Am.Jur. Parks, Squares, and Playgrounds § 21, p. 817. See also, State ex rel. City of Excelsior Springs v. Smith, 336 Mo. 1104, 82 S.W.2d 37; Antonakas v. Anderson Chamber of Commerce, 130 S.C. 215, 126 S.E. 35; Rayor v. City of Cheyenne, supra; Re Central Parkway, City of Schenectady, 140 Misc. 727, 251 N.Y.S. 577; 26 C.J.S. Dedication §§ 65 and 66; Annotations, 18 A.L.R. 1248, 63 A.L.R. 486, 144 A.L.R. 4.92. The ultimate right of-control of public parks, as of other governmental property, belongs primarily to the state and not to the municipality in which it is located. Municipalities have only such right of control as is delegated to them. Higginson v. Slattery, 212 Mass. 583, 99 N.E. 523, 42 L.R.A.,N.S., 215; In re Central Parkway, City of Schenectady, supra. In this case the City of St. Louis has the fee. to Forest Park, but.the legislature, in authorizing St. Louis Conty (and later the City of St. Louis) to acquire ifc specified to what purpose the fee should be held, that is for park purposes. Therefore; the decisive, question in this case is whether the legislature of Missouri lias-delegated tfr the City of S.t. Louis the authority to divert any portion of the land of Forest Park proposed to be used for'the'expressway for purposes other than a park.

The charter of the City of St. Louis, adopted pursuant to an express grant of authority in Art. IX, Sec. 20, Constitution of 1875, V.A.M.S., and continued in force by Art. VI, Sec. 31, Constitution of 1945, V.A.M.S., has all the iorce and effect of an act, of the legislature. Wiget v. City of St. Louis, 337 Mo. 799, 85 S.W.2d 1038, 100 A.L.R. 1284; City of St. Louis v. Fischer, 167 Mo. 654, 67 S.W. 872, 64 L.R.A. 679, 99 Am.St.Rep. 614. That charter grants tó the city in the usual manner the authority to open and establish streets, but that, standing alone, is not sufficient to authorize the use of. park land for street purposes. Rayor v. City of Cheyenne, supra at p. 118 of 178 P.2d. However, in' addition to the above authority, in Art. I, Sec. 1 (S) of the charter the city is expressly given the authority “to acquire or receive and hold, maintain, improve, sell, lease, mortgage, pledge or otherwise dispose • of- -property, real' or personal, and .any- estate or -interest therein; and in Art. I. Sec. 1 (14) the city is expressly given the authorty “to establish, open, relocate, vacate, alter, * * * parks, public g'rounds and' squares, * * The language of the charter provision granting these broad powers contains no limitations that any change in the use of parks brought about by vacating or altering parks or parts thereof must be only of a certain nature or for certain purposes. If it were intended by the legislature that the city could only control and supervise the parks without changing them or the use of the land in any respect, then the above authority to vacate and alter has no meaning because the charter otherwise grants to the city the authority for and provides the procedure of supervising and controlling the public parks. In State ex rel. City of Excelsior Springs v. Smith, supra [336 Mo. 1104, 82 S.W.2d 42], this court recognized that “public convenience, interests, and necessities” may make a change in the location of a public park imperative. The same reasoning applies to the use of a park. The legislature apparently recognized that such circumstances might or would arise in the future, and it granted to the City of St. Louis the authority to vacate park property and to alter a park. We expressly do not decide whether the City of St. Louis has the authority to divert park land to some nonpublic use. Here the use is for a public purpose, and the record clearly establishes that it is a reasonable use which will result in removing a substantial portion of through traffic from the park drives thereby increasing the availability of the remaining park land for park purposes. We conclude that the express legislative authority contained in the charter of the City of St. Louis authorizes the city 'to divert that part of Forest Park proposed for the public use in constructing the Rock Island Expressway.

We find that the cases-from other jurisdictions support the above conclusion. In McCarter v. City of Raton, 45 N.M. 351, 115 P.2d 90, 91, the city proposed to vacate a portion of a public park for the construction of a state highwáy. ’ The state’had by'-general law granted the city the right “to lay out, establish, open, alter, widen, extend, grade, pave, or otherwise improve streets, * * * parks, and public grounds, and vacate the same * * [Comp.St.1929, § 90-402(7) ] It was held that the “rights of the people of Raton were subject to the city’s statutory authority to vacate the park or any portion of it.” The same result was reached in Lloyd v. City of Great Falls, 107 Mont. 442, 86 P.2d 395, and in Seattle Land & Improvement Co. v. City of Seattle, 37 Wash. 274, 79 P. 780. In Sharp v. City of Guthrie, 49 Okl. 213, 152 P. 403, the fact that the municipality had been granted the authority to alienate the land was held sufficient authority for the city to divert park land. For related cases see also East Chicago Co. v. City of East Chicago, 171 Ind. 654, 87 N.E. 17; City of Detroit v. Judge of Recorder’s Court of City of Detroit, 253 Mich. 6, 234 N.W. 445; Spinks v. City of Los Angeles, 220 Cal. 366, 31 P.2d 193; City and County of San Francisco v. Linares, 16 Cal.2d 441, 106 P.2d 369.

The above conclusion disposes of all of plaintiff-appellants’ contentions on this appeal pertaining to the issue of whether the construction of the expressway across the northeast corner of Forest Park constitutes an unlawful use of park land. We shall not enumerate and discuss separately the various points in their brief pertaining to that issue.

Plaintiffs challenge the validity of the bonds issued by the City of St. Louis to finance the construction of the Rock Island Expressway, and we shall set forth such facts pertaining to their issuance as is necessary to dispose of the contentions made. Ordinance 47519 of the City of St. Louis, introduced in the Board of Aldermen as Board Bill 3, provided for the submission to the voters “of twenty-three (23) proposals for the incurring of indebtedness and the issuance of bonds of said City in evidence thereof in the aggregate amount of One Plundred Ten Million Six Hundred Thirty-nine Thousand Dollars ($110,639,-000) * Proposition 6 of the ordinance submitted for vote the proposal to issue bonds to the amount of $11,615,000 ■“for the purpose of establishing, opening, widening, constructing and reconstructing public streets, highways, parkways and boulevards, and otherwise improving the same and acquiring right of ways and land therefor.” Proposition 7 of the ordinance submitted for vote the proposal to issue bonds to the amount of $11,400,000 “for the purpose of paying all or part of the cost of constructing, reconstructing, extending and improving bridges, viaducts, underpasses and grade separations and acquiring land therefor.” Both propositions were approved by the voters. The ballot set forth the propositions in the language set out above.

By point VI in their brief plaintiffs assert that the trial court erred in failing to find and decree “that propositions 6 and 7 of Ordinance 47519 were unconstitutional because [they] did not conform to the provisions of Section 13 of Article IV of the Charter of the City of St. Louis in that the two said propositions contained more than one subject, each, and the subject was not clearly expressed.” No reference is made in the point or in the argument thereunder to any provision of the Constitution which is contended to have been violated. Assuming that the charter provision was violated, that would not result in the ordinance or the propositions being unconstitutional. This point could be disposed of on this ground. However, from the argument it appears that plaintiffs intended to assert that the ordinance is invalid because it did not comply with the above charter provision which requires that “No bill, except a general appropriation bill * * * shall contain more than one subject, which shall be clearly expressed in the title.”

Plaintiffs assert that Ordinance 47519 contains more than one subject because “part of the highways for traffic and some of the bridges and underpasses contemplated by the two propositions were to be constructed upon properties not dedicated to public use and some were to be constructed upon properties previously dedicated to public use.” The subject of the ordinance was not the location of the public improvements, but it was whether bonds should be voted to finance the construction of the named public improvements. If the bonds are approved, then the location, size and design of the projects may be determined by those vested with the authority to do so. It was not intended that the face of the ordinance should specify where the public improvements were to be built or upon what land, and “some underlying motive not expressed or disclosed in a legislative act cannot be treated as the subject of the act.” Thomas v. Buchanan County, 330 Mo. 627, 51 S.W.2d 95, at p. 97. We find no merit in this contention of plaintiffs, but a further comment is merited. If Ordinance 47519 had specifically spelled out in propositions 6 and 7 that part of the public improvements were to be constructed on land to be acquired and the remainder were to be constructed on land previously dedicated to public use, the ordinance would not for that reason have contained more than one subject. While no previous case has been found specifically ruling such a factual situation, we think that conclusion is obvious. For somewhat analogous situations see State ex rel. Niedermeyer v. Hackmann, 292 Mo. 27, 237 S.W. 742; Spitcaufsky v. Hatten, 353 Mo. 94, 182 S.W.2d 86, 160 A.L.R. 990; State ex rel. Becker v. Smith, 335 Mo. 1046, 75 S.W.2d 574; State ex rel. Town of Canton v. Allen, 178 Mo. 555, 77 S.W. 868; Robinson v. Wiese, Mo.Sup., 210 S.W. 889; State ex rel. School Dist. of Memphis v. Gordon, 223 Mo. 1, 122 S.W. 1008. If, as above stated, to specify the land upon which the improvements were to be constructed would not result in the ordinance containing more than one subject, we do not see how failing to do so could reach that result. What plaintiffs really are complaining about is that the ordinance contains too little, not too much. This leads to the next contention of plaintiffs that there was a failure to “clearly express” the subject of the ordinance in the title because there was no mention of the proposed diversion of Forest Park. This assertion is necessarily premised upon the incorrect assumption as to what constituted the subject of the ordinance. Nothing in the ordinance purported to require or authorize the use of park land for the construction of the public improvements. The right to use park land for the Rock Island Expressway did not depend upon this ordinance. Therefore, there was no need to mention its use in the title. The title to the ordinance was not defective for this reason.

Plaintiffs next challenge the submission of propositions 6 and 7 for a vote by the people of the City of St. Louis because they each contained more than one subject and because the subject was not clearly expressed in that they did not affirmatively state that part of the public improvements would be constructed on park land. .This is really a challenge as to the form and substance of the ballot. When propositions 6 and 7 were submitted for a vote in the precise language of the ordinance, as they were in this case, and the ordinance is not defective for the asserted reasons, as we have held, then the form or substance of the submission on the ballot was not defective.

Plaintiffs also assert that propositions 6 and 7 affirmatively stated that the bond money was to be used in building highways, underpasses and bridges and “acquiring land therefor,” and since part of these improvements are to be built on land already owned by the city this resulted in a “fraud being perpetrated upon the qualified voters.” They rely on Meyers v. Kansas City, 323 Mo. 200, 18 S.W.2d 900, where it was held that express authority to purchase a site for a public improvement has to be given before bond issue money could be used for that purpose, and on State ex rel. State Building Commissioner v. Smith, 336 Mo. 810, 81 S.W.2d 613, 615, where authority to use bond issue money “to repair, remodel or rebuild public buildings” did not authorize the expenditure of bond money to equip them. These cases are not control-,ling. No unlawful expenditure of bond issue money is involved. The fact that the ordinance, and the propositions as approved by the voters, gave the city authority to construct public improvements, such as streets and highways, and acquire land therefor, does not mean that the city was precluded from building some or part of the streets and highways on land it already owned or which was donated to it without cost. In fact, exhibits in the case indicate that a portion of the expressway east of the park is to be built by widening existing streets, which the city now owns and which is dedicated for public use. The only fair and reasonable interpretation is that the city was authorized to obtain land and rights of way needed.

Plaintiffs next contend that the trial court erred in failing to decree that a contract entered into by the City of St. Louis and V & M Contracting Company for the construction in Forest Park of som'e of the authorized facilities was null and void. This contention is based solely on the previously ruled contentions that the city had no legal right to use any of the land in Forest Park for the Rock Island Expressway, and in view of our previous ruling this contention deserves no further comment.

Plaintiffs’ last point in its entirety is that “The court erred in. failing to find and decree that Ordinance 48941 did not authorize the construction of an underpass.” This point totally fails to “state why it is contended the Court was wrong in any action or ruling sought to be reviewed.” Civil Rule 83.05(e), V.A.M.R.. \ye would be justified in considering it no further. Domijan v. Harp, Mo.Sup., 340 S.W.2d 728. As a matter of interest, however, we find that in the argument plaintiffs assert that Ordinance 48941 of the City of St. Louis authorized the construction of “bridges” but does not authorize the construction of an underpass, and that the contract between the City of St. Louis and V & M Contracting Company was for the construction of an “underpass.” Ordinance 48941 actually authorized the Bpard of .Public-Service to contract “for the construction of bridges oh the-Forest Park Parkway, including Lindell-Union, Grand Drive * * * together with .all incidental construction therewith.” From ■other exhibits and the testimony it appears 'that V & M Contracting Company contracted to build a structure at each place which was designed to serve as a “bridge” for the existing street or drive over the expressway arid as an “underpass” for the expressway under the street or drive crossing ■the bridge. By whichever name it is called, the authority for “all incidental construction therewith” included such features as were necessary to provide for both uses.

The judgment is affirmed.

BOHLING and BARRETT, CC, concur.

PER CURIAM.

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

All concur.


author: BRADY, Commissioner.

text:
    Ruth WHALEN, Plaintiff-Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a corporation, Defendant-Respondent.
    No. 30708.
    St. Louis Court of Appeals. Missouri.
    Nov. 21, 1961.

      Samuel A. Goldblatt, William L. Mason, Jr., St. Louis, for appellant.
    William Corrigan, St. Louis, for respondent.
   BRADY, Commissioner.

The appellant, hereinafter referred to as plaintiff, brought this action against the respondent, hereinafter referred to as the defendant, for personal injuries which she averred she sustained when water and sand on the steps and around the fare box of defendant’s streetcar caused her to fall. This appeal followed the trial court’s action in sustaining the defendant’s alternative motion for a new trial.

The plaintiff pleaded that the defendant was negligent in causing, allowing, or permitting the entrance steps and aisle of the car to “ * * * have upon them mud, water and sand, to such extent that said surfaces were unduly, unreasonably and dangerously slick and slippery and not reasonably safe for the use of defendant’s passengers, * * Plaintiff testified in her own behalf and also offered the testimony of the witness Dickens. Plaintiff’s testimony was that the, day of the occurrence was clear and dry; that as she boarded the streetcar with her left foot still on the pavement and her right foot on the step, she saw sand and water on the step and the aisle around the fare box; that she stepped up with her left foot to the step, holding on to the rail, and then with her right foot to the platform; that when she did so she felt “ * * * something under my foot, gravel and water” and she slipped aq.d fell forward to her knees, striking the right side of her head on the rail that is directly behind the motorman. Plaintiff further testified that the streetcar shed was about two or three blocks south of where she boarded the car, although on cross-examination she stated she did not “ * * * remember saying a car shed” and did not know if there was a garage or anything like that there, and that the floor of the streetcar was covered with a “black mat.” ' Dickens’ 'testimony was that about two or three blocks away from where he boarded the streetcar is a streetcar shed at the start of the loop of the Jefferson streetcar line; that when he boarded the streetcar, one block before the plaintiff boarded it, he looked at the floor which was covered with a' “black carpet” and noticed the floor was wet and had sand on it as if someone had been sweeping; that he took the seat behind the motorman on the left side of the car, and that he saw the plaintiff fall. On cross-examination, this witness was cross-examined extensively concerning a prior statement he had given. This signed statement differed from his testimony at the trial in that it appeared therein that he had stated that he and the plaintiff got on the car together, that he saw plaintiff fall backward after she had paid her fare; and caught herself by grabbing the back of a seat, never falling to the floor; that he didn’t pay any attention to the steps when he got on the car; and that he sat in the third or fourth seat on the right. The witness testified at the trial that the person taking the statement had not written down what he .(Dickens) told him, although he identified his signature thereon, and signed beneath the words, “This statement is true” thereon. This was plaintiff’s case.

The defendant put on the motorman’s son, who explained his father’s failure to appear by testifying that the motorman had suffered a stroke with resulting paralysis on his left side and speech impairment. The motbrman’s deposition was read into evidence, and the pertinent evidence therefrom was that he was the motorman on.this streetcar on the day of the occurrence, that there was no sweeping out of the streetcar or cleaning it at the south end which he had just left before this occurrence; that there was no water or other material on the landing which was clear as were the steps; that the plaintiff “ * * * didn’t get a good footing on the steps and her foot slipped off and she hit her leg against the step”; that she did not fall; that plaintiff told him she hurt her leg; and that her head did not strike anything. Defendant’s other evidence was given by the witness Hill, who took the statement of Dickens. He testified that he took the statement by asking questions and taking down the answers; that, in response to his request, Dickens appeared to read the statement and signed at the bottom of each page and that the statement was true; and that Dickens deleted a statement from what he had written and signed his name to the deletion. He was asked specifically about the statements which' were at variance with Dickens’ trial testimony, and answered that each was in the statement. On cross-examination, he was asked whether or not it was his work to take statements and investigate claims and stated that it was; that he wrote the statement except for the signature and that it was put down as Dickens gave it to him.

The defendant presented motions for a directed verdict at the close of plaintiff’s case and at the close of all the evidence, which are almost identical and which were overruled by the trial court. Insofar as these motions are here concerned, they presented the contention that plaintiff failed to make a submissible case. While there is no assignment of error dealing with the instructions, the theory of plaintiff’s submission is of importance to this appeal. Plaintiff’s verdict directing instruction was Instruction No. 1, which hypothesized certain preliminary facts and then contained the following submission:

“ * * * that there was a mixture, of sand and water on the floor of said car near said farebox; that by reason of the presence of said mixture, the said floor at said place was unduly, unreasonably and dangerously slick and slippery; that by reason of such slick and slippery condition, the floor there was nor (sic) reasonably safe for people to step upon it at said place; that defendant, through its agents and servants, knew, or by the exercise of the highest degree of care could have known, of the existence of said unsafe ■condition for a sufficient length of time before Ruth Whalen got on that car to have remedied said unsafe condition by the exercise of the highest degree of care to make the floor there reasonably safe before Ruth Whalen got on that car; that defendant was thereby negligent; that Ruth Whalen stepped in and on said mixture; that she fell; that her said fall was directly caused by such unsafe condition and by such negligence of the defendant; * *

The jury returned a verdict for plaintiff in the amount of $2,750. The defendant filed a lengthy motion for a new trial which assigned as grounds therefor, among others, that the verdict was against the weight of the evidence, that the plaintiff had failed to make a submissible case, and

“13. That a fraud or deceit was practiced by the plaintiff on this defendant by the testimony of plaintiff or witness.
“14. That a mistake has been com-mited (sic) by plaintiff or witness, or there has been perjury committed by plaintiff or witness.”

The trial court overruled the motion for a directed verdict, and sustained the motion for a new trial for the specific reason that the verdict was against the weight of the evidence, thereby overruling the other grounds presented, Loveless v. Locke Distributing Co., Mo., 313 S.W.2d 24, and cases cited at [11, 12], local citation page 32. The Loveless case is also of importance on the question of the grounds for new trial stated in paragraphs 13 and 14 of the motion therefor which are not before us on this appeal. The trial court’s order reads,

“Verdict and judgment in favor of plaintiff and against defendant is hereby set aside, vacated and for naught held. Cause ordered reinstated on docket for new trial and further proceedings.”

Although the trial court did not in any way limit the new trial it granted, counsel, it is stated in the briefs and in the transcript, agreed not to include in the transcript plaintiff’s or defendant’s medical testimony.

Plaintiff contends that the trial court abused its discretion in granting the defendant a new trial on the grounds that the verdict was against the weight of the evidence. The respondent disputes this contention, and in addition suggests that plaintiff failed to make a submissible case, and therefore the trial court should have sustained the defendant’s after trial motion for judgment in accordance with its motion for directed verdict for the reason that the plaintiff failed to prove “ * * * that the alleged unsafe condition existed prior to plaintiff’s fall”, and also for the reason that plaintiff was guilty of contributory negligence as a matter of law for failing to see what respondent contends, if it existed at all, was an obvious condition. Since the defendant’s contentions as to plaintiff’s failure to make a submissible case were duly preserved in the trial court, it is entitled to have this matter considered even though it filed no appeal. Wilhelm v. Haemmerle, Mo., 262 S.W.2d 609[2] at loc. cit. page 611. Since this matter is fundamental and decisive in the case, we will first consider it. In doing so, we are constrained to view the evidence in the light most favorable to the plaintiff, giving her the benefit of all reasonable inferences therefrom not in conflict with her theory. However, we need only consider the negligence submitted to the jury by plaintiff’s instructions, Thaller v. Skinner & Kennedy, Mo., 315 S.W.2d 124.

In considering the defendant’s contention that a submissible case was not made due to plaintiff’s failure to prove that the alleged unsafe condition existed prior to her fall but it should be noted as defendant admits in its brief “ * * * plaintiff did not submit her case on the theory that defendant created the unsafe condition ; but, rather, on the theory that defendant had, or should have had, knowledge of its existence in time to have remedied it.” Defendant then states that “Without his (Dickens’) testimony plaintiff has not shown scienter.” Dickens’ testimony at the trial was that he saw sand and water on the floor when he boarded the bus a block or so before plaintiff boarded it, and the permissible inference from his description of the sand and water, the extent of it, and the time he saw it, was that the motorman should have seen it and had time to do something about it. Actually, defendant tacitly admits that with this testimony plaintiff made a submissiblc case under the theory she submitted in her verdict directing instruction. Defendant, however, urges that Dickens’ testimony must be disregarded for the reason that the defendant presented evidence on its motion for new trial, a somewhat unusual procedure, and upon taking the stand on that proceeding Dickens said he did not notice any water or sand before plaintiff got on the streetcar. Dickens then said the sand and water was there but that he only noticed it after the occurrence. Defendant urges that, “Such testimony on the Motion for New Trial destroys the probative value of the party’s trial testimony.” We can not agree. What is before this court is the question of whether or not plaintiff made a submissible case and that question must be determined in the light of the evidence presented at the trial, that heard by the triers of the facts. Insofar as that testimony is concerned, even as defendant tacitly admits, the testimony of the witness Dickens and the reasonable inferences to be drawn therefrom established that element which defendant now contends is missing from the plaintiff’s case to the extent of allowing submission of its existence to the jury.

Defendant also contends that since plaintiff stated in her deposition that her “foot stuck” she is bound by this testimony which is contradictory to her statements at the trial that her foot slipped. There are several answers to this contention. The first is that at the trial when asked about her foot being “stuck” the effect of her testimony was that while she used that word she also stated “ * * * there was something that was rolling * * * ” or “ * * * slipping or something under * * * ” her foot, and if this is contradictory to her testimony on deposition it merely goes to her credibility. Another answer is that both the plaintiff and Dickens testified she slipped, and the fact that in her deposition plaintiff also stated that her foot was stuck, in view of her explanation as given at the trial of what she meant by the use of that term, would not cancel out the evidence of slipping which supported the submission made.

The defendant’s contention that the plaintiff was contributorily negligent as a matter of law is based upon plaintiff’s actions in going ahead up into the car after she saw the water and sand on the steps and platform of the car before she was fully on the car. The defendant contends that, quoting from its brief:

“ * * * If she saw the condition it would have accomplished no purpose to warn her of it, and it would only be defendant’s duty to warn of an unsafe condition if she did not know about the condition. See the cases of Heine v. [John] W. R. Thompson Co., [Mo.] 330 S.W.2d 867; Smith v. Alaskan Fur Co., [Mo.] 325 S.W.2d [740] 739.”

Plaintiff did not submit upon failure to warn. Moreover, the rule that has developed in landlord and tenant, and business invitee cases, see Roman v. King, 289 Mo. 641, 233 S.W. 161, 25 A.L.R. 1263; O’Neill v. Sherrill, Mo.App., 254 S.W.2d 263, is applicable here. Unless the defect was of such an inherent or glaringly dangerous character that no reasonable person would proceed, the plaintiff cannot be held con-tributorily negligent as a matter of law. Here, there was sand and water upon a “black carpet” or “black mat”, the car was standing still when she boardéd, the day was dry and nothing had previously occurred to warn her of the danger of slipping. Under these circumstances the plaintiff was not contributorily negligent as a matter of law..

We pass now to plaintiff’s contention that the trial court abused its discretion in granting the defendant a new trial on the grounds that the verdict was against the weight of the evidence. In the case of City of St. Charles v. De Sherlia, Mo.App., 308 S.W.2d 456, at loc. cit. page 459[1], this court held:

“It is within the trial court’s discretion to grant one new trial upon the ground that the verdict is against the weight of the evidence. Section 510.-330 RSMo 1949, V.A.M.S. Such an order will not be interfered with absent an abuse of discretion. Woods v. Ogden, Mo.Sup., 102 S.W.2d 648; Lindsey v. Vance, 337 Mo. 1111, 88 S.W.2d 150; Stegner v. Missouri-Kansas-Texas R. Co., 333 Mo. 1182, 64 S.W.2d 691; Westinghouse Electric Supply Co. v. Binger, Mo.App., 212 S.W.2d 445. There is no abuse of discretion where it appears that substantial evidence was introduced upon which a jury could have reasonably arrived at a verdict contrary to the one returned. Westinghouse Electric Supply Co. v. Binger, Mo.App., 212 S.W.2d 445; Geiger v. City of St. Joseph, Mo.App., 198 S.W. 78; Leavel v. Johnston, 209 Mo.App. 197, 232 S.W. 1064.”

As was stated in Andres v. Brown, Mo., 300 S.W.2d 800, at local citation page 801: In determining whether or not- there was substantial evidence to warrant a verdict for the defendant, who in this case is the party in whose favor the motion for new trial was granted, this court will review all the evidence in the light most favorable to defendant, giving it the benefit of all reasonable inferences therefrom not in conflict with its theory, City of St. Charles v. De Sherlia, supra; Burnett v. St. Louis Public Service Company, Mo., 337 S.W.2d 921 at local citation page 923 [2-4].

“ * * * and where a new trial on such ground is granted the appellate court reviews the record to ascertain only if there was substantial evidence to warrant a verdict for the party in whose behalf the motion was sustained. Albert J. Hoppe, Inc., v. St. Louis Public Service Co., Mo., 235 S.W.2d 347, 349; Dawson v. Scherff, Mo., 281 S.W.2d 825, 831; Liddle v. Collins Construction Co., Mo., 283 S.W.2d 474, 477.”

The plaintiff’s argument is that in the instant case, the defendant’s evidence being given by deposition, there was nothing in the trial that' could have justified the exercise of the trial court’s discretion to conclude that the weight of the evidence was against the verdict. We cannot agree. It has been said that the right of the trial judge in his discretion to grant one new trial on the ground that the verdict is against the weight of the evidence is an inherent right, Albert J. Hoppe, Inc. v. St. Louis Public Service Co., Mo., 235 S.W.2d 347; Dawson v. Scherff, Mo., 281 S.W.2d 825; and is an exercise of the court’s power to weigh the evidence' Mitchell v. Pla-Mor, Inc., Mo., 237 S.W.2d 189. In weighing the evidence, more is involved than merely the appearance and demeanor of the parties and witnesses upon the stand. The exercise of the trial court’s power to weigh the evidence also includes the question of whether or not he finds it at all believable or worthy of probative value. It is obvious that the testimony of the defendant’s motorman, if believed, would certainly warrant a verdict for the defendant in whose favor the motion for new trial was ruled. Accordingly, the judgment should be affirmed and the cause remanded to the trial court. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion of BRADY, C., is adopted as the opinion of the court. The judgment of the circuit court is, accordingly, affirmed, and the cause is remanded to the circuit court for new trial.

ANDERSON, P. J., RUDDY, J., and JOHN J. KELLY, Jr., Special Judge, concur.

WOLFE, J., not participating.


author: BROADDUS, Judge.

text:
    Albert J. YONKE, Plaintiff-Respondent, v. ESTATE of Mary ALBER, deceased, James H. Fender and Ruby Fender, Administrators, Defendants-Appellants.
    No. 23397.
    Kansas City Court of Appeals. Missouri.
    Dec. 4, 1961.

      Richard H. Musser, Holden, Garrett R. Crouch and C. B. Fitzgerald, Warrensburg, for appellants.
    Phillip C. Houx, Warrensburg, W. F. Daniels, Fayette, for respondent.
   BROADDUS, Judge.

This is an appeal by the administrators of the Estate of Mary Alber, deceased, from a judgment in favor of Albert J. Yonke, in the sum of $10,000. We have jurisdiction of the cause by reason of Sect. 477.040 (as amended 1959) V.A.M.S.

The facts are undisputed. Mary Alber and Dan Alber were husband and wife residing in the State of Kansas. One child had been born of this marriage. In November, 1956, Mrs. Alber sued her husband for divorce in the State of Kansas. Mr. Yonke, the claimant here, represented Mrs. Alber, and Mr. Hilary Bush represented Mr. Alber in the divorce action.

There were negotiations relative to a property settlement between the parties and their attorneys off and on from the time the suit was filed until the 20th day of May, 1957, on which date the property settlement agreement was signed by Mary and Dan Alber and duly acknowledged. The only portion of this settlement agreement (Exhibit 3) in issue here is paragraph 15, which is as follows:

“15. It is further agreed that the real estate commonly known as the Pleasanton, Kansas, farm and more fully described as follows * * * shall be, co-incident with the signing of this agreement, transferred and conveyed to Thomas J. Gill, as trustee, with instructions to said trustee, to sell said farm and to apply the proceeds of said sale first, to the cost of making the sale, second, to the payment of attorney’s fees in the amount of $10;000.-00 each to Albert J. Yonke, Attorney for First Party, and Hilary A. Bush, attorney for Second Party. Any surplus remaining shall be paid over to the party of the first part. The second party agrees to pay all taxes due and payable at the signing of this agreement and to pay for the costs and expense of a title policy or for the examination of this abstract.”

On May 22, 1957, the land described in said paragraph 15 was conveyed to Mr. Gill, as trustee. He has never reconveyed any portion of this real estate.

On June 12, 1957, Mrs. Alber was divorced from Mr. Alber in the District Court of Johnson County, Kansas. The full decree is shown by appellants Exhibit 4, which included the full property settlement heretofore mentioned, except Paragraph 15. This decree was filed in the Kansas Court on September 12, 1958, and has on it the word "approved” by “Albert J. Yonke, attorney for First Party.” On June 20, 1957, the Kansas Trial Court by Journal Entry disapproved the provision in the settlement as to attorney fees.

On January 9, 1959, Mrs. Alber died in Kansas and in the same month of the same year appellants were appointed co-administrators of her Missouri estate. Prior to that time the last Will of decedent had been admitted to probate in Kansas and an executor appointed in that State.

On October 8, 1959, respondent Yonke filed a demand in the Missouri estate of deceased for $10,000 on account of legal serv-. ices performed by respondent at the request of deceased. In said demand,- respondent stated that he held certain real estate in Kansas as security for his claim. This real estate described in his claim was the same as that set out in Paragraph 15 of the property settlement agreement and which had been transferred to Mr. Gill as trustee.

On February 25, 1960, Honorable William M. Kimberlin, Judge of the Circuit Court of Johnson County, sustained claimant Yonke’s Motion to strike paragraphs 2, 3 and 4 of appellants’ answer. On April 27, 1960, appellants filed an application for change of. venue on the ground that Judge Kimberlin was prejudiced against them. The application being sustained, the Honorable Sam C. Blair, Judge of the 19th Judicial Circuit, was called in to try the cause. The case came on for trial on December 27, 1960, and at the conclusion of the evidence the trial court directed a verdict in favor of respondent Yonlce.

Respondent has filed a motion to dismiss the appeal herein on the ground that appellants’ brief does not contain a fair and concise statement of the facts, and that their Points are general abstract statements and present nothing for review. We have concluded that the questions posed for determination are clear and thus the motion should be denied and the case decided on its merits.

Appellants’ first contention is that the court erred in failing to direct a verdict for them at the close of all the evidence. They argue that respondent is suing on the contract (Exhibit 3) and shows no breach thereof. What their contention really amounts to is that respondent must look to the security specified in Clause 15 of the contract between Mr. and Mrs. Alber for payment of his claim.

As stated decedent’s estate was opened in Johnson County, Missouri, where respondent filed his claim. Such proceedings are now, by the new Probate Code, original proceedings and not ancillary or dependent upon the proceedings in the State of domicile of deceased, Sect. 473.668 V.A. M.S. In said demand so filed by respondent, he described the security therefor, as required by Sect. 473.387 V.A.M.S. It is well settled in Missouri, and elsewhere, that a claimant may file a demand for the full amount of his claim against an estate or he may resort to his security. Day v. Graham, 97 Mo. 398, 11 S.W. 55; 34 C.J.S. Executors and Administrators § 368, p. 97. As stated in Sect. 473.387 V.A.M.S., the claimant must describe his security (which respondent did) and the claim shall be allowed “in the same amount as if it were unsecured,” Said statute goes on to say that: “Nothing in this law shall be construed to compel the creditor to surrender his security until he receives payment of [the] debt in full, or he is paid the value of the security.”

Respondent offered as evidence of his claim the contract entered into between Mr. and'Mrs. Alber (Exhibit 3), which was admitted without objection by appellants. Said contract was relevant to prove the amount of the demand, the reason for the demand, and the services rendered by respondent to deceased. As said by our Supreme Court in the case of Muench v. South Side National Bank, 251 S.W.2d 1, 5: “Evidence of the express promise to pay and the agreed compensation, was admissible to show an intention on the part of the deceased to pay for the services,, that plaintiff expected payment and the value the parties put upon them.”

Appellants in their brief say “the trustee did not and has not performed his trust,” and “decedent never did anything to' hinder or delay the performance of the agreement by the trustee.” In other words, their argument is that respondent can only be paid from the proceeds derived from the sale of the security. This position is unsound in view of the specific Missouri statutory authority to the contrary. Appellants call our attention to the case of Farris v. Pitts, 221 Mo.App. 1204, 300 S.W. 840. That case has no bearing on the instant case. In our opinion, the court did not err in refusing to direct a verdict for appellants.

Appellants next contend that respondent waived his rights to his fee. Six grounds of waiver are asserted by appellants. No. 1 is that respondent failed to advise decedent to appeal from the decision of the Kansas Court. In this connection, it is to be kept in mind that respondent was not a party to the action in Kansas. His client was awarded a default divorce and granted the relief prayed for. Yet, appellants say she should have appealed. From what, and for what purpose it may well be asked: Waiver No. 2 (prevailing on decedent to acquiesce in said decision) is not briefed and argued, which is understandable as there is nq evidence in the record or offer of proof', with respect thereto. No. 3 is "approval of the action of the Kansas Court by affixing his signature to the final decree of the court.” It is clear that respondent; by signing the journal entry, was merely approving the form and contents of the judgment which was already a final judgment. By so doing respondent was in no wise approving the action of -the court. The law of Kansas so states. Sect. 60-3827, Rule 49 G.S. of Kansas, 1935; Chaney v. Edmonds, 153 Kan. 668, 113 P.2d 81; Gates v. Gates, 160 Kan. 428, 163 P.2d 395 (1945). Appellants next mention waiver No. 4, wherein respondent “asserted no claim for a period of time.” The record is silent as to respondent’s efforts to collect his fee. Certainly no statutory prohibitions were violated by respondent, and appellants cite no authority in support of this contention. Waiver No. 5 (claiming the security) is likewise abandoned, as well it might be, in view of Sect. 473.387 V.A.M.S.; and waiver No. 6 (acceptance of $1000) is also abandoned, which is understandable because said fee was paid December 4, 1956, and long prior to the agreement to pay the fee here involved.

A “waiver is an intentional relinquishment of a known right.” Schwab f. Brotherhood of American Yeoman, 305 Mo. 148, 264 S.W. 690, 692. There is no. evidence of waiver, as that term is known in the law, in the instant case.

In their brief appellants argue that the trial court erred in refusing to admit in evidence the pleadings filed by respondent in a Kansas Court action to quiet title. No such error is alleged in the motion for hew trial nor is such error set forth in appellants’ Points and Authorities. This violates our.Rules of Civil Procedure, 83.05(e). We have, however, examined the contention and find that it lacks merit.

Appellants’ last point is that the trial court erred in directing a verdict for claimant for the reason that the contract sued on was an oral contract. It is true that the evidence was to the effect that the agreement to pay attorneys fees was entered into orally soon after the diyorce suit was filed. It is also true that the general rule is as stated in the case of Daly v. Schaefer, Mo.App., 331 S.W.2d 150, 154, cited by appellants, that “where plaintiff’s proof rests on oral testimony he is not entitled to a directed verdict, and this is true even though defendant offers no evidence * * But this rule has its exceptions, one of which is “where there is no real dispute of the basic facts supported by un-contradicted testimony essential to a claim or an affirmative defense.” Rogers v. Thompson, 364 Mo. 605, 265 S.W.2d 282, 287. Citing many cases.

Appellants have resisted this claim on the theory that deceased did not breach her agreement to pay. respondent, and that respondent waived his right to a fee. They do not claim that deceased did not owe respondent. How could they in view of deceased’s solemn written acknowledgment that the fee in a definite and fixed amount was due?

Furthermore, appellants’ counsel in his opening statement, referring to the property settlement (Exhibit 3) stated: “Mr. Yonke was to have $10,000 for his attorney fees and that 'the other attorney was to have $10,000 for his fee.” And by their objection to a question asked of Governor Bush they, in effect, conceded that the fee was proper and reasonable. Three witnesses for respondent, Alber, Bush and Baker, testified unequivocally to deceased owing respondent and that she acknowledged such indebtedness. There is no evidence in the record to the contrary and, in fact, not one shred of evidence to cast even a doubt on this obligation.

The judgment was for the right party and should be affirmed. It is so ordered.

All concur.