author: BOHLING, Commissioner.

text:
    Leroy J. FOWLER, Appellant, v. TERMINAL RAILROAD ASSOCIATION, a Corporation, Respondent.
    No. 49543.
    Supreme Court of Missouri, Division No. 2.
    Jan. 14, 1963.

      Librach, Heller, Byrne & Weber, William P. Byrne, St. Louis, for appellant.
    Robert C. Ely, St. Louis, for respondent.
   BOHLING, Commissioner.

Leroy J. Fowler sued the Terminal Railroad Association of St. Louis, a corporation, for $17,500 damages for personal injuries allegedly received when plaintiff fell down some steps just inside the 18th Street entrance to the Union Station in St. Louis, Missouri. Plaintiff had a verdict for $1,500 damages. Both parties filed after-trial motions. The court sustained defendant’s motion for judgment in accordance with its motion for a directed verdict at the close of the evidence and entered judgment for defendant and, if said judgment be reversed on appeal, granted defendant a new trial on assignment numbered 2 of its alternative motion for new trial. The court also overruled plaintiff’s motion for new trial on the issue of damages only or, in the alternative, for an additur. Plaintiff has appealed from these rulings.

Plaintiff’s fall occurred on November 23, 1957. He was then 73 years old. His business was selling “train order transmitters,” on which he held a patent and which he sold to railroads by mail. He felt a pain in his stomach and his wrist was numb. He walked to the Market Street entrance and took a taxi to the Marion Hospital. His principal injury was a “colies fracture” of his right arm; that is, a break of the radius near the wrist. He was in the hospital for two days. There was a “closed reduction,” by manipulation, without opening the skin, of the fracture. His arm was put in a cast, which was taken off December 23. He wore a light cast for about seven days and then carried his arm in a sling. He wore a leather brace on his wrist for about six weeks. Plaintiff is right-handed and has difficulty in writing or typing but apparently does all the writing he wants to do. Plaintiff’s medical evidence was that the fractured bone united in good position. He notices some stiffness and soreness when the weather is bad. Plaintiff’s left ankle bothered him for probably a month after his fall. The testimony was that a reasonable charge for the attention plaintiff received at the hospital was $50 to $75 and for the x-rays taken was $75.

Plaintiff took his appeal to the St. Louis Court of Appeals and the appeal was transferred here on the ground that the amount in dispute was in excess of $15,000. RSMo 1959, § 477.040, V.A.M.S.

The jurisdictional statement in plaintiff’s brief filed in the Court of Appeals, upon which he submits his case here, reads in part: “This court derives jurisdiction by virtue of the fact that the amount in controversy is less than $15,000.00, to-wit: $1,-500.00, and there are no other facts in the record which would confer jurisdiction on the Supreme Court of Missouri.” No authority is cited.

Generally when plaintiff appeals from a judgment in favor of defendant, the amount prayed for in the petition is taken as the amount in dispute; and when plaintiff appeals on the ground a judgment in his favor is inadequate the difference between the amount prayed for in the petition and the amount recovered is taken as the amount in dispute. With this plaintiff suing for $17,500, recovering $1,500, and having that recovery set aside and judgment entered for defendant, this court would ordinarily have appellate jurisdiction. Williams v. Kansas City Pub. Serv. Co., Mo., 294 S.W. 2d 36 [1] ; Glore v. Bone, Mo., 324 S.W.2d 633 [1, 2].

In exceptional instances, however, the amount in dispute for appellate jurisdictional purposes is not controlled by the pleadings. Gillespie v. American Bus Lines, Mo., 246 S.W.2d 797, 800 [2]; Strothkamp v. St. John’s Community Bank, Inc., Mo., 329 S.W.2d 718, 720 [5]. Our courts of appeals are courts of general and this court is a court of limited appellate jurisdiction. City of Doniphan v. Cantley, Banc, 330 Mo. 639, 640, 50 S.W.2d 658 [4]; Higgins v. Smith, 346 Mo. 1044, 144 S.W.2d 149, 151 [5, 6], citing authority. Our jurisdiction must affirmatively appear of record and for the purpose of assuming jurisdiction the amount in dispute may not rest in speculation and conjecture. Cases supra.

In Vanderberg v. Kansas City, Mo., Gas Co., 199 Mo. 455, 458, 97 S.W. 908, plaintiff sued for $5,000 actual and $5,000 punitive damages at a time when courts of appeals had jurisdiction of amounts in dispute of $4,500 or less. Cast on demurrer to the evidence, plaintiff appealed to this court. We concluded no punitive damages were involved, the actual damages were small, and transferred the case to the court of appeals, stating: “[Wjhere, as in this case, the whole case of plaintiff is presented below and becomes a part of the record through a bill of exceptions, this court has hesitated to give to a plaintiff the whimsical and unregulated power to control its jurisdiction by a mere stroke of his pen in his petition, and we have reserved to ourselves the right in emergency to control the question of jurisdiction by looking into the whole record far enough to do so by seeing to it that jurisdiction is not foisted upon us by a mere paper or colorable amount in dispute, but is regulated by the real amount in dispute on appeal as disclosed by the entire record.” See, among others, Wilson v. Russler, Banc, 162 Mo. 565, 567, 63 S.W. 370 (stating this rule of law to be settled) ; Strothkamp case, supra 329 S.W.2d 1. c. 720 [4, 5],

We are convinced that a verdict and judgment for this plaintiff in an amount in excess of $15,000 should not be permitted to stand under the facts in the record before us.

An additional reason this court does not have jurisdiction is that plaintiff’s presentation of his claim that a recovery of $1,500 is inadequate demonstrates that a claim for damages in an amount exceeding $15,000 would be a matter of color and not of substance.

Plaintiff relies upon the three cases next mentioned for holding a recovery of $1,500 inadequate. Asher v. Griffin, Mo.App., 342 S.W.2d 255, 260 [7-9], his first case, involved injuries to a 26 year old married woman. She sustained severe bruises and pain, was troubled with her wrist and back, and lost much time from her work as the result of an automobile collision. The x-rays were negative as to fractures or dislocations but disclosed a flattening of the cervical curve. She had medical expenses of $495. A judgment of $5,000 was held not excessive. Plaintiff in his brief states of his other two cases that in Hiken v. Wilson’s Shoes, Mo.App., 317 S.W.2d 673 [8], a judgment for $5,000 was reduced to $3,500 where there was no fracture, and the only injuries were multiple bruises, lacerations, swelling and nervousness which lasted for a time, and that in Karnes v. Ace Cab Co., Mo. App., 287 S.W.2d 378 [5], a judgment for $3,500 was reduced to $2,500 where the only injury involved was a minor brain concussion. We have read plaintiff’s citations on the issue, and it is not necessary to develop them in detail. It does not follow from a holding that a judgment is not excessive or that a judgment should be reduced by a remittitur that a judgment based upon a verdict for a less amount than that approved in some like case by an appellate court would be inadequate.

In Beasley v. Athens, 365 Mo. 158, 277 S.W.2d 538 [3], plaintiff asked $5,000 actual and $5,000 punitive damages in an assault and battery case, but his counsel in argument to the jury stated he thought plaintiff entitled to $1,000 actual and $1,000 punitive damages. We considered a holding that the amount in dispute exceeded $7,500 (which would vest appellate jurisdiction here at the time) would rest in speculation and conjecture. We have considered the failure of counsel to reason a point vesting appellate jurisdiction here tantamount to an abandonment of the point and an invitation to broadly infer that counsel concede it no point to reason. Hartzler v. Metropolitan St. Ry. Co., 218 Mo. 562, 565, 117 S.W. 1124, 1125; Ashbrook v. Willis, 338 Mo. 226, 89 S.W.2d 659 [6].

The appellate jurisdiction of the courts of appeals should not be destroyed by the injection of sham amounts in dispute in the trial courts. From the fact that plaintiff’s presentation makes no claim or attempt to claim a right to a judgment in excess of $15,000, we conclude that any issue based upon a prayer in his petition for damages in excess of $15,000 is a matter of color only, and not of substance, and insufficient to vest appellate jurisdiction in this court.

This appeal should be and is retransferred to the St. Louis Court of Appeals.

BARRETT and STOCKARD, CC., dissent.

PER CURIAM.

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

EAGER, P. J., and LEEDY, J., concur.

STORCKMAN, J., dissents.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Euel WILLIAMS and Virginia Williams, Respondents, v. Claude PYLES and Audra Pyles, Appellants.
    No. 49044.
    Supreme Court of Missouri, Division No. 2.
    Jan. 14, 1963.

      Robert B. Baker, Ellington, for defendants-appellants.
    J. Ben Searcy, Eminence, Hogan & Hogan, Robert E. Hogan, West Plains, for respondents.
   BARRETT, Commissioner.

Claude and Audra Pyles, residents of St. Louis, owned a tract of land, approximately 130 acres, in Reynolds County. On August 5, 1959, they entered into an “option to purchase” in which, upon certain conditions, they agreed to sell the land to Euel and Virginia Williams, residents of Reynolds County, for the “total purchase price” of $1,200. In October 1959, Euel and Virginia instituted this action in specific performance against the Pyles. Upon a trial of the cause, in circumstances to be noted, the court found the issues in favor of the plaintiffs and decreed specific performance and the Pyles have appealed. They urge that because of failure of proof the plaintiffs’ action should have been dismissed and, alternatively, that a new trial should be granted. Their first point is that plaintiffs’ evidence “conclusively shows that there was no acceptance of the offer by giving a written notice” to Claude Pyles as provided in the option and therefore it is said there was a failure of proof. As entitling them to a new trial the appellants urge (1) that the court erred in not sustaining objections to the testimony of Euel Williams “relating to the execution of the option contract and relating to the purported acceptance on the ground of incompetency, because of the insanity of an agent (Claude Pyles) for the other parties to the contract” and (2) that the court erred and entered a void judgment in proceeding with the trial after a suggestion of insanity was filed without first appointing a guardian ad litem for Claude. The appeal is disposed of upon consideration of the latter point only and it is unnecessary to directly consider the other problems.

The option contract was entered into August 5, 1959, and this action in specific performance was instituted two months later, on October 13, 1959. On November 13, 1959, the Pyles filed an answer in which they denied that the conditions of the option had been complied with and contested as inequitable in general the plaintiffs’ right to specific performance. On May 13, 1961, counsel for the Pyles filed a verified motion for a continuance in which he stated as a ground that Claude Pyles “is now confined in a mental institution.” The motion set forth the fact that Claude was the only material witness for the defendants, that his presence was necessary to a proper defense of the action and the substance of what he would testify to was related. In his affidavit counsel suggested “that if this cause is continued for about six months that, it is reasonably possible, the said Claude Pyles will be recovered sufficiently to appear as a witness.” On the same day, in addition to the motion for a continuance, counsel filed a “Suggestion Of Incompetency In The Case Of Claude Pyles,” in which it was stated that Claude “is now confined in a mental institution in * * * St. Louis State Hospital * * * and is now, and has been for many months suffering from a severe mental disorder rendering him an incompetent person.”

When the cause came on for trial six days later, May 19, 1961, there was a rather lengthy colloquy between the court and counsel with respect to the motion for a continuance and Claude’s illness. In the course of the discussion Pyles’ counsel stated that he had but recently learned that Claude had been in “an institution or two during the last twenty years,” and about two weeks ago had learned of the latest hospitalization. When asked by the court whether he had any information as to when Claude would be able to testify counsel responded, “I have nothing that we could say that he would positively be able to testify. But, he’s been in and out of this mental condition, I guess, all of his life. And he’s in an institution now and we are applying for guardianship over his property and estate.” Counsel stated that as far as he knew Claude had never been formally and legally adjudicated a person of unsound mind, “They are doing that now and I think — I assume in those letters it will be sufficient for this Court, in all purposes, to show that he is now legally incompetent.” The court said that it was a question of “what would be gained by a continuance” and, “Of course, it’s a question of how lucid he was when this transaction was made.” The court then reread and overruled the motion for a continuance.

Pyles’ counsel then informed the court that “I would like to have my people arrive before we proceed.” He also called attention to the “Suggestion of the Incompetency of the defendant as a party.” With the assent of plaintiffs’ counsel court recessed until 9:30. When reconvened at 9:40 the court announced that the petition had been read, that “your parties aren’t here but they have been notified to be here and are expected” and the cause proceeded to trial. The Pyles did not appear and defense counsel’s only witness was a real estate agent who expressed the opinion that the land was of the value of $2,500 to $3,000. In the absence of Claude counsel was unable to present any evidence in defense of the merits of the action and he was of course unable to adduce any evidence to contradict the testimony of Euel Williams.

After the trial had been concluded the court reopened the case and permitted counsel for the Pyles to place in the record a “Judgment And Order Of Hospitalization” in the Probate Court of the City of St. Louis. This document recites that on October 27, 1960, the court considered “the involuntary hospitalization” of Claude Pyles the “proposed patient” and finds that he is “mentally ill and is in need of custody, care and treatment in a mental hospital, and because of such illness lacks sufficient insight or capacity to make responsible decisions with respect to need for hospitalization.” Whereupon, after finding that he was unable to pay for his treatment, the probate court “orders that said patient be detained for an indeterminate period.” Nevertheless, the circuit court overruled the Pyles’ motion to set aside the judgment and their motion for a new trial.

The respondents plaintiff contend that the initial suggestion of incompetency “did not operate, in itself, as proof of defendant’s incompetency, but the burden was on defendant to prove mental incompetency.” They also contend that the order of hospitalization does not operate as an adjudication of mental incompetency. It is said in these circumstances that there was no proof that the defendant Claude Pyles was incompetent “either at the time he was served 'with process, or at the time judgment was rendered” and therefore it is argued that the judgment should not be set aside for lack of appointment of a guardian ad litem.

The order of hospitalization was a proceeding under the statute for the “involuntary” hospitalization of the mentally ill (V.A.M.S., Sec. 202.807) and, strictly speaking, was “not an adjudication of insanity.” Murphy v. Murphy (Mo.), 358 S.W.2d 778, 782. And, as to its effect, the court in the Murphy case said, “The most that could be'here said is that there is a presumption that plaintiff continued to have some sort of mental illness after the adjudication in question.” It may be added parenthetically that these proceedings for the care and treatment of the mentally ill, in fact the entire chapter (Ch. 202 R.S.1959) relating to “Mental Hygiene and State Hospitals” is indeed an innovation and an entirely new concept and advisedly is gingerly approached by the court, particularly upon this appeal. Furthermore, in connection with the respondents’ argument, in some instances at least, as in a cancellation case, the burden is upon the individual plaintiff or his guardian ad litem to prove his asserted lack of mental capacity. Allen v. Kelso (Mo.:), 266 S.W.2d 696, 702. And it may be noted and conceded that an insane person may sue in his own name or be sued and that a judgment against him is not void and is not subject to collateral attack. Annotations 34 A.L.R. 221, 140 A.L.R. 1336. It may even be observed, if the exigencies of the situation demand it, that specific performance may be had against an insane person. 81 C.J.S. Specific Performance, § 28, p. 474. But, at the same time, a judgment against an insane person is voidable and subject to direct attack or review on appeal. 29 Am.Jur., Sec. 126, p. 247; annotation 35 L.R.A.(N.S) 1090, 1095; Koe-nig v. Union Depot Railway Co., 194 Mo. 564, 92 S.W. 497. And if the insane person was riot represented by a guardian ad litem the judgment should be set aside. Murphy v. Murphy, 358 S.W.2d, 1. c. 781; Graves v. Graves, 255 Mo. 468, 164 S.W. 496. A guardian ad litem is not a mere figurehead (Hemphill by and through Burns v. Hemphill (Mo), 316 S.W.2d 582) and it is so'me-times necessary even “in the maintenance of actions brought in their own names by unadjudicated mental incompetents or alleged mental incompetents * * * to appoint a guardian ad litem, next friend,' or special guardian to protect the litigant’s interests.” Annotation 71 A.L.R.2d 1247, 1260.

But the respondents’ arguments and all of these observations are more or less beside the point upon this appeal. There is a vast difference in a case in which an allegedly insane litigant is successful and one in which, as here, he is unsuccessful. Allen v. Kelso, 266 S.W.2d, 1. c. 704. This after all is an action for specific performance, an equitable proceeding, and "The remedy is invoked primarily that complete justice may be done between the parties.” Hoover v. Wright (Mo.), 202 S.W.2d 83, 86. In the circumstances of this record there was no pressing urgency that specific performance of an ordinary real estate option be immediately decreed, particularly when the only possible witness against the action was involuntarily “detained” for treatment in a mental hospital for an “indeterminate period.” Such a “proposed patient” may not be legally insane, but the evidence was available and a guardian ad litem could have investigated the facts and perhaps established whether Claude was legally insane. Schuler v. Schuler, (Mo. App.) 290 S.W.2d 192, 1. c. 199-200. It does not appear, either now or when the case was tried, that there was or will be any injustice, irreparable injury, or even a loss in damages to withhold the remedy of specific performance. Claude may not have been adjudged insane, nevertheless specific performance is a matter of grace (Cox v. Bryant (Mo.), 347 S.W.2d 861, 863) and there is some obligation in an equitable proceeding to safeguard the rights of one who is mentally ill and in need of enforced custody, care and treatment in a mental hospital. Therefore, reviewing this record anew and coming to such judgment as to this “court shall seem agreeable to law” (Sup.Ct. Rule 83.13(c) V.A.M.R.), the decree is reversed and the cause remanded to the end that a guardian ad litem may he appointed and every other safeguard employed to prevent a possible injustice in an equitable proceeding (44 C.J.S. Insane Persons § 151, p. 325) to one who is obviously mentally ill if not legally or technically insane. 29 Am.Jur. (Insane Persons), Sec. 128, p. 249 ; 44 C.J.S. Insane Persons, § 151, p. 325; Hoover v. Wright, supra; Hemphill by and through Burns v. Hemp.hill, supra; Schuler v. Schuler, supra.

BOHLING and STOCKARD, CC, concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Judge.

text:
    In re Kenneth Joseph DOWNS, an Attorney.
    No. 48820.
    Supreme Court of Missouri, En Banc.
    Jan. 14, 1963.

      Walter M. Clark, Charles C. Allen, Jr., George S. Hecker, St. Louis, special counsel for informants.
    Francis M. O’Brien, St. Louis, for respondent.
   EAGER, Judge.

An information was filed in this court, by leave, charging Respondent Kenneth Joseph Downs with professional misconduct; the information contains 19 counts. It was filed by the Bar Committee of the Twenty-Second Judicial Circuit after the Committee had first heard evidence informally and later, upon notice and formal hearings, had found probable cause to believe that Respondent was guilty of the misconduct now charged. The Respondent has filed answer admitting various formal matters but denying all misconduct. We appointed the Honorable James Austin Walden, of the Randolph County Bar, as our Special Commissioner; he held hearings in the City of St. Louis for four days and has filed a most complete and thorough report of his findings of fact and conclusions of law. The transcript of the evidence is in excess of 800 pages. Respondent was found guilty of professional misconduct on 12 of the 19 counts and his disbarment has been recommended. Respondent has been represented by counsel both before the Bar Committee and the Commissioner. It will be impossible here to avoid a rather detailed statement of much of the evidence.

Respondent, a graduate of the Law School of St. Louis University, was admitted to the Bar in 1954. During most of 1956, all of 1957 and most of 1958, he occupied a suite of offices in St. Louis with one Milton Fox, another lawyer. At various times there were also others in these offices. Respondent and Fox were not partners; Respondent made certain investigations for Fox at an hourly rate of pay, tried cases for him upon a division of fees, and handled entirely certain miscellaneous matters which came to Fox, such as criminal cases and divorce suits. Respondent also had his own business, which consisted essentially, if not entirely, of personal injury cases. He filed many personal injury suits for clients of Fox, but in so doing he used only his own name on the petitions. He said that this was done at Fox’s direction, and the latter confirmed this in his testimony. Respondent and Fox regularly used a printed form of contingent fee contract by 8½ inches, a little larger than the ordinary check. Since there will be much reference to such contracts, we quote the form as follows : “I hereby employ_ as my attorney— to represent me in my claim against-founded upon__ sustained by - on the _ day of -19 — , by-For services I agree to pay you _ per cent, of the amount collected either by compromise or by suit.

In all the contracts involved here the fee was one-third, and only the prospective client signed. In substantially all of these matters Respondent had the claimant write on the back of the contract a statement: “Referred by_at my request,” filling in a name. He said that this was done where the client was Fox’s, and at the direction of the latter; that he did it only occasionally on his own business but, with one exception, every contract introduced in evidence here contained such an endorsement. Fox testified that this was done for his protection against charges of solicitation, and in view of a “witch hunt” which had been prosecuted in St. Louis some 7-8 years previously. One witness testified that Respondent told him that the reason was to enable him to compensate the person referring the case to him.

Five witnesses, three of whom were lawyers, testified that Respondent’s reputation for “truth, honesty and integrity” was good, or very good, or excellent. Such evidence is of no great materiality in a matter of this kind. The first four counts involve Respondent’s relations with James B. Herd, then a law student at St. Louis University, and a practicing lawyer since September 1959. Herd testified that about June of 1957 he was told by an instructor that Respondent wanted someone to work for him as a part-time investigator, that he applied for the job, told Respondent that he was a law student, and was employed. He further testified: that Respondent agreed to pay him $2.50 an hour for investigative work, but further agreed to pay him $25 for any “garden variety” lawsuit that he found and brought in and more for those which were “attractive”; that Respondent gave him a supply of his business cards, and of the contingent fee contract forms; that his investigative work was irregular, that he worked only when Respondent called him, that he kept his own time and was paid at two-week intervals; he never brought in a lawsuit which he himself discovered; he quit after about six weeks because the Dean of his law school told him (and this was brought out by Respondent’s counsel on cross-examination) that he had learned that Mr. Downs “had made certain untoward propositions” to recent graduates and that “he suggested that I terminate.” Herd also testified: that he was sent by Respondent at various times to interview specific persons, take statements, and try to get contracts signed; that he did get some contracts; that he did not know those people and was merely given the name and address in each instance, being told what to do; that in certain instances the people “would indicate to me by their conduct that they had never heard or known of Mr. Downs”; that when the person supposedly referring the matter was mentioned, some said they knew the person but “on a number of occasions it was source of embarrassment, I wasn’t expected, and when the name of Mr. Downs came up and who I was or what I was there for, there was a blank reaction or no reaction by these people”; that all such calls were made at the direction of Downs or his secretary; that on one occasion he was so sent to a hospital to see a colored woman who had had her leg severed, with instructions to get her statement, and determine if she was “interested in having Mr. Downs represent her,” and that if she was unrepresented and desired counsel, to do everything possible to get a contract signed; that at the same time Downs told him that he represented a trucking concern or owner which was involved; that he found at the hospital that the woman was in no condition to talk; that one of the persons around her told him that the woman already had a lawyer and that there was no truck involved; that he later called the woman’s lawyer who became very much irritated and wanted to know Herd’s name and whom he was working for; that Downs later admitted that “there was no truck involved,” and that he did not represent any one involved. He further testified: that on one occasion he was directed by Downs to go and interview a certain person in East St. Louis who was a new client whom Downs had not seen, to get the case signed up, put the people at ease, and because he (Downs) had made an appointment to go himself, to “tell the people that I was Mr. Downs”; that he went, that the prospective client was expecting Mr. Downs, that he did nothing to dispel the illusion, and that the ultimate result (cross-examination) was that the person “felt that he had been contacted by Mr. Downs,” which was the “impression” he, Herd, was trying to give.

Respondent admitted the employment of Herd for investigative work and the payment to him of sums of $75.90 and $19.40. He testified that this work was actually that of his associate Fox which he was farming out; Respondent specifically denied that he sought, through Herd, to influence people to give him personal injury claims, and asserted that the cases where Herd got contracts were Fox’s cases; Respondent denied that he ever tola or authorized Herd to represent himself as Downs.

The Commissioner found that Counts 1, 2 and 4 were sustained by the evidence and that Count 3 was not; he also concluded that Downs’ actions, as thus proven, were violations of the Canon of Ethics as exemplified in Rules 4.28, 4.34 and 4.47 (Count 1), Rules 4.27, 4.28 and 4.47 (Count 2) and 4.22 and 4.47 (Count 4), V.A.M.R. Count 1 charged that Respondent agreed to pay 'Herd, a layman, for personal injury claims :of others which he referred to Respondent. Count 2 charged that he caused Herd, a layman, to seek to influence the bringing of personal injury claimants to Respondent and to procure contracts from them, although such persons had not sought his services. 'Count 3 charged that he caused Herd to bring such persons to him for employment. ■Count 4 charged that Respondent authorized and instructed Herd to represent himself 'falsely' and fraudulently as the Respondent ±o a prospective client. We concur with the -findings of our Commissioner, who heard all ‘the evidence, viewed the witnesses and passed upon their credibility; we also find, and from 'our- independent review of the evidence (all of which we have read) that the 'charges of Counts 1, 2 an 4 have been established. "Since Herd was not shown to have actually procured any contracts “on ‘his own,” the allegations of Count 3 were •not established.

Counts S and 6 charged that in the summer of 1957 Respondent made proposals to one David S. Hemenway (Count 5) and Gerald D. Morris (Count 6), both recent law graduates who had taken the Bar Examination but were not yet licensed, that they should get jobs as adjusters with a casualty insurance company and refer to him personal injury claimants against the company’s insureds (Hemenway and Morris), and solicit the employment of Respondent by insureds of the company where such persons themselves had claims for personal injuries against others (Hem-enway) ; that in return Respondent offered office space and secretarial service to both, the sharing in contingent fees of any insureds who were so referred (Hemenway), and agreed to allow Morris to retain all fees on his own cases when admitted to the Bar. These two men, both practicing lawyers' at the time of the hearing, fully substantiated these charges; Hemenway was, at that time, an Associate City Counselor in St. Louis; Morris was a trial attorney for the Transit Casualty Company. Both men had seen notices or had heard orally at law school that Respondent wanted to talk to young men concerning possible employment. Hemenway testified also that Respondent suggested that they could thus go together to an insured’s home and represent themselves as coming from the insurance company. Neither witness accepted any such proposition. Respondent, essentially, denied the making of any and all such propositions, and stated with reference to Hemenway, that he had no employment to offer. That statement was wholly inconsistent with another statement he made twice later to the effect that he was always looking for people to do investigative work. The Commissioner found that Respondent had made such proposals to both of these men. We so find from our review of the evidence, and find also that such conduct was a clear violation of Rules 4.27 and 4.28.

In Count 7 Respondent was charged with telling certain law students who were applicants for admission to the Bar, and who had come to him seeking possible employment (James B. Herd, David S. Hemenway and Gerald D. Morris) that practicing lawyers disregard the Code of Ethics, that the practice of law is a business, — that solicitation and division of fees with laymen are ■proper and accepted practices of lawyers in the St. Louis area and constitute the only way that lawyers get business, and that they should disregard the Code of Ethics. Respondent denied making such statements, saying that these men had formed erroneous conclusions from his remarks. Herd testified: that Respondent said that he had made a lot of money though a young man, and that he made it the way “everyone else downtown” was making it; that certain lawyers abused the Code and “received for this abuse only a slap on the wrist from the courts” and were never disbarred; that one lawyer was suspended for a year, went to Europe, came back and could now afford to be respectable since he had made his money, and that this was the way he intended to operate. Hemenway testified that he raised the question of ethics with Respondent when the latter suggested that he get a job as an adjuster and refer cases to him; that Respondent’s answer was: “ * * that this was part of the law business, doing ¡’business, you had to. If you are in business you had to make money and the ethics were of no consideration, and you had to make money one way or the other. He pointed out to me I had no connections, as I just told him in the interview. He pointed out to me that I had no connections with any law firm and that you have to get business some way. * * * everyone does it or everybody does it, or something to that effect. * * * Procures business in such a manner that you have to procure business any way you can get it, that if it is unethical, everybody does it.” Morris testified that: “Mr. Downs indicated that I should disregard ethics, the ethics that I learned in law school and the ethics of the profession. * * * Well, as I recall, he said, ‘All lawyers were jealous of each other.’ I don’t recall anything else being said about it, except that I should disregard it, the law was a business and there was no place for ethics in it.” These three men were law students, known to Respondent as such, and two of them were then applicants for admission to the Bar. Their credibility was not actually attacked and we find their testimony to be true, as did the Commissioner. Its effect is devastating, and this is perhaps the most serious of all the 19 charges. We find also that Respondent was therein guilty of the most reprehensible conduct, in violation of Rules 4.29, 4.22 and 4.47.

Count 8 charged that Respondent proposed to William S. Hoffman, a lay adjuster, that he, Hoffman, “seek out persons with claims for personal injuries and secure them as his, Respondent’s, clients.” At the time of the hearing Hoffman was an adjuster for the Western Casualty Company; in the fall or early winter of 1958 he was attending-law school and adjusting claims out of the law offices of Harlan and Harlan in St. Louis County. The conversation in question occurred in the fall or early winter of 1958, when Hoffman was talking to Respondent by phone concerning a personal injury claim in which both were interested. Respondent then offered Hoffman employment at an hourly rate of $3.50; as to the nature of the employment, Hoffman testified : “He stated that I would be out on the streets getting cases for him. Q Getting cases for him? A Yes, personal injury claims. Q Did you discuss or did he discuss any other duties that you would have? A No, he didn’t. Q What did you reply to this, if anything? A I more or less tried to find out what the job would involve. He was fairly vague about it, stated that mostly — to the effect — the most I could get out of it was that I would be trying to get cases to refer to him.” Hoffman did not accept the employment. Respondent admitted talking to Hoffman about doing investigative work, but denied making the other proposals. The Commissioner found that the offer was made as so testified to by Hoffman, and that Respondents conduct was in violation of Rules 4.27, 4.28 and 4.47. We concur in this.

We next consider Counts 9, 15, and 16, jointly. They all arise out of an incident in which a stationary taxicab was supposedly struck in the rear by a car driven by a Mrs. Pelham Robinson on March Í7, 1956. One Ezell Ray was the driver of the taxi, and Harry Ball and Margaret Thompson, a negro woman,, were passengers! In Count 9 Respondent was charged with the solicitation and procuring of a contingent fee contract from Margaret Thompson; in Count 15 he was charged with representing and filing suit for Harry Ball without authority, also with failing to account to Ball; in Count 16 he was charged with representing to Mr. and Mrs. Robinson that he “represented” (i. e., was attorney for) Ezell Ray when such was not, in fact, true. The Commissioner has found that Counts 15 and 16 were not sufficiently proven. As to 15, this was largely due to the almost total confusion in Ball’s testimony; as to 16, Ezell Ray identified his signature and endorsement on the contingent fee contract, though claiming a lack of memory of the circumstances. We agree with the Commissioner that Counts 15 and 16 were not established. We shall not, therefore, add any facts to this necessarily long opinion dealing specifically with those counts. Margaret Thompson (Count 9) testified: that Respondent appeared at her home (near which the accident occurred) on the day of the accident, and before she had gone to her family physician, Dr. Vaughn Payne; that he rang the bell and said that he was a lawyer; that she did not know him and had not sent for him; that he came in, talked about the case, asked who her doctor was, had her sign a contract and had her also write on the back a statement that she had been referred by Dr. Payne; that later on the same day she went to Dr. Payne; that some time after the accident she took Respondent’s card to Dr. Payne and asked if he knew Respondent; that Dr. Payne said that he did not, except that he knew that he was in the office with Milton Fox. It was developed that in this witness’ prior testimony before the Bar Committee in June 1960, she had testified in part that she believed Downs came to her house after she had been to the doctor and, in substance, that it had all been so long ago that she had forgotten whether Dr. Payne referred Downs to her; she did testify, then, however, that Downs was “right in there so quick.” On further cross-examination at the present hearing she was very definite that Respondent came to her house on the day of the accident and before she had been to the doctor; also, that later on the same day she did go to Dr. Payne, and that the doctor did not refer her to a lawyer. She explained these discrepancies with the statement that she had since reviewed the matter with her husband, who was at home on the day of the accident, and that her memory was thus refreshed to the extent that she could herself remember the sequence of events. Respondent testified that Mrs. Thompson called him about a month after the accident, that when she called she said she had been referred by Dr. Payne, and that he took a contract. Neither the contract nor a subsequent statement from her were offered in evidence by Respondent. In this case Respondent did not contend that he had been sent out by Fox, but nevertheless he took the usual referral statement on the back of the contract. This woman got nothing on her claim. Dr. Payne, a negro physician, testified that Mrs. Thompson first came to his office on March 17, 1956; he had testified at the prior hearing that she came first on March 19; this is not particularly material, since the patient also testified that she had gone to him on the 17th. He further testified that "later on in the case” Mrs. Thompson did ask him about Mr. Downs, saying that some of her friends had recommended him, and that he then did recommend Downs. At a prior hearing he had testified that: “I didn’t tell her to get anybody.” From his total testimony it appears that the mention of Downs came after Mrs. Thompson had been unable to get any results by way of settlement, and certainly not for some days after the accident. While, in some of its phases, the testimony of Mrs. Thompson was self-contradictory, this is an excellent illustration of the need for and value of an able commissioner who hears the evidence and determines questions of credibility. The Commissioner here has found that Downs solicited Margaret Thompson, without any request, and that he thus persuaded her to execute the contingent fee contract. We find nothing in the record to indicate that we should reject his views on credibility; we further find Respondent guilty of unprofessional conduct on this charge in violation of Rules 4.27, 4.28 and 4.47.

Counts 10, 11 and 12 involve a collision or series of collisions occurring in St. Louiá County on May 27, 1958, in which Owen Kelly, Harold Hartwig and one Lyles were involved; this was a sort of chain reaction affair resulting when another car, headed in the opposite direction, was struck by a pickup truck, and pushed in front of Kelly’s moving’ car. These men were working at McDonnell Aircraft, and were riding in a car pool. Hartwig was a registered engineer. In Count 10, Respondent was charged with representing conflicting interests in that he took a contract from Hartwig, failing to advise him of his cause of action against his own driver Kelly, whom Respondent also represented. In Count 11, Respondent was charged with advising Hartwig that it was impossible for him, Hartwig, to discharge Respondent, with falsely representing to Hartwig that he had already filed suit on his behalf, with encroaching upon Hartwig’s employment of other counsel, and with communicating directly with Hartwig and discussing the facts after the latter had employed other counsel. In Count 12, Respondent was charged with falsely representing to Hartwig’s subsequent counsel that he had instituted suit when he had not in fact done so, and with actually filing suit knowing that he had been discharged as Hartwig’s counsel.

The facts and circumstances of this collision, brought out in some detail before the Commissioner, seemed to indicate no real probability of establishing Kelly’s negligence. The Commissioner found that Hart-wig had stated to Respondent that Kelly was in no sense at fault, that Respondent was justified in believing that there would be no conflict and that there was no violation of the rules in connection with Count 10. We so find here and it is therefore unnecessary to state further facts concerning Count 10. At this point we must pick up additional facts, however, on Counts 11 and 12. Respondent had been recommended to these people by one Mooney, a brother-in-law of Kelly, who had worked for Respondent; Hartwig had signed, at Mooney’s suggestion, a contingent fee contract employing Respondent. Shortly thereafter Respondent had a conference with the three directly involved and Mooney, at Kelly’s house. A little later, Hartwig, after talking to a lawyer of his own acquaintance, decided that it would be better if he employed other counsel than the one Kelly had, and that he should discharge Respondent. He employed the firm of Cook, Murphy, Lance and English, and wrote Respondent on June 12, 1958, as follows (omitting the paragraphing) : “I would like to notify you at this time that I feel it to my best interests to hire another lawyer to represent me in connection with the automobile accident on Lindbergh some time ago. I will be happy to defray all costs incurred by you up to this time in my behalf, and trust that I will not have inconvenienced you. Please accept this letter as notice to yourself that you will no longer be representing me. I wish to thank you for all your efforts in my behalf to this point, and hope to remain. Sincerely yours, HHH Harald H. Hartwig.” By letter of June 13, Downs replied that Hart-wig was “confused,” that he had already made an appointment for him for a medical examination, that he had prepared and filed suit, and that Hartwig should make an appointment, come to Downs’ office and he, Downs, would explain that “What you asked * * * is impossible.” Within a few days after June 13, Respondent or Mooney called Hartwig and both of them talked to Hartwig on a joint telephone “hookup”; Hartwig testified that this was a long conversation, that Respondent stated that once he had engaged an attorney he could not discharge him, that he, Hartwig, was merely employing additional counsel, that each would receive one-third of the settlement, that he discussed the facts of the accident, and that he wanted to know if Hartwig was going to change his testimony, to which Hartwig replied that Respondent should see his attorney, Mr. Lance. Hart-wig further testified that Respondent said that he should “cancel out Mr. Lance,” whom he told Respondent he had employed. Milford T. English, a partner of Mr. Lance, testified: that right after his firm was employed, and between June 12 and June 15, he called Respondent on the phone, and that Respondent stated that he intended to keep on representing Hartwig and that he had filed suit. English checked the records and found no such suit; he subsequently had another phone conversation with Respondent, in which he told Respondent that he found no record of any such suit and asked for the number; Respondent left the phone a short time, but came back and replied that he did not have the number, but repeated “I have filed the lawsuit.” On the next day English checked again and found no suit, checking also the reverse index on defendants. On June 14, Mr. English filed suit for Hartwig, as shown by- the court files; in that suit Kelly, the driver, was joined as a defendant; along with the driver of the truck. Thereafter Respondent did file suit on June 18; in a letter of June 16 to Mr. English’s firm Respondent again stated that he had filed suit, that he had a written contract and a lien, and that he represented Hartwig. Both suits were filed in St. Louis County. On June 17, Mr. English advised Respondent of the filing of suit, and requested a statement of his services and expenses. Apparently no response was received. Later Mr. English filed a motion to dismiss the suit filed by Respondent, gave notice, and the court dismissed the suit. The Commissioner has found as to Count 12 (the false representation of filing suit) ■ that while the statements were untrue, Respondent was conceivably misled by his stenographer’s statement to him, after he had dictated the petition and supposedly told her to mail it to the clerk, that “that’s all taken care of.” This was a part of Respondent’s testimony. Hence, the Commissioner found that it was not established that Respondent knew, at the time of making these statements to English, that they were untrue. We accept this finding, but with some misgivings. Respondent identified his signature on the petition but did not know when he signed it; he could not have signed it before it was transcribed; he could not find the check, so he said, which was mailed for the filing fee, which either he or his wife would have signed, and which, of course, would have borne a date; and he testified that he had “dictated these three long petitions” -to his stenographer (Hart-, wig’s, Kelly’s and Lyles’) when in fact Hart-wig’s petition contained 24 lines. The Commissioner heard the explanations. We did not. We find Respondent not guilty of unprofessional conduct on Count 12.

On Count 11 (the encroachment upon Hartwig’s employment of another lawyer and his refusal to stand discharged) Respondent’s testimony was rather confusing. Essentially, he maintained that he did not and was not required to agree to the termination of a “bi-lateral” contract, that Hartwig’s letter was ridiculous, and that you can’t “hire and fire” a lawyer in such manner; he also testified that he told Hart-wig that while he could hire other counsel, he would have to “split the fee,” and that if his contract was broken he would be entitled to a suit for “damages.” We cannot repeat here all of that testimony. The Commissioner found that Respondent had thus directly encroached upon Hartwig’s employment of other counsel and that, after knowing of such employment, he communicated directly with Hartwig. The Commissioner has further found this to be a violation of Rules 4.07, 4.09, 4.11, 4.22 and 4.47.

There can be no doubt of the right of a client to discharge his lawyer, whether he be employed on a quantum meruit basis or for a contingent fee. In such event, if the lawyer has a contingent contract and is without fault, he has the election to claim a reasonable fee for the work done, as upon a mutual rescission, or to wait until the claim is liquidated by judgment or settlement and then sue (if necessary) for his contract fee. Mills v. Metropolitan St. R. Co., 282 Mo. 118, 221 S.W. 1; Barthels v. Garrels, 206 Mo.App. 199, 227 S.W. 910; In re Thomasson’s Estate, 346 Mo. 911, 144 S.W.2d 79; 7 C.J.S. Attorney and Client § 109, pp. 940-941. While here 'there was some discussion by Respondent to the effect that he would still be entitled to a fee, we conclude from all the testimony that he insisted that Hartwig could not discharge him, suggested that he, Hartwig, “cancel out” the other attorney, and that he thus interfered with his client’s rights and encroached upon the subsequent employment; nor did he have the right to telephone Hart-wig after the discharge, communicate directly with him, argue with him about the discharge, and discuss the merits of the case. We hold Respondent thus in violation of Rules 4.07, 4.09 and 4.47.

On Counts 13 (a charge of misrepresentation to one Dee Mobely of the amount to be received upon a settlement) and 14 (solicitation of the claim of Eva Donske) the Commissioner found that neither of these charges was established. Upon our own review of the evidence, we agree. It would, therefore, be futile to detail the very extensive evidence concerning these counts.

The remaining Counts, 17, 18 and 19, all arise out of a collision between two cars in May 1956, south of St. Louis on U. S. Highways 61 and 67. The essential question was, — which driver was on the wrong side of the road, on or near a curve? Elmer LaChance was driving one car north and his passengers were Barney Jones, the latter’s wife Beatrice, and Jones’ step-son Richard Clemens. Beatrice was killed; La-Chance and Jones were seriously injured. LaChance was taken to Alexian Brothers Hospital; Jones to St. Anthony’s Hospital. The other car was driven by Carl Henson; his wife was killed, and he was confined to Alexian Brothers Hospital for 6-8 weeks. Count 17 charged the solicitation of La-Chance’s suit and claim, and the false representation by Respondent to LaChance that he represented LaChance’s insurance company. Count 18 charged repeated attempts by Respondent to solicit and procure the claim of Henson, despite the fact that he had already procured LaChancels claim and had, prior to at least a part of the solicitation, already sued Henson. Count 19 charged the solicitation of the claim of Barney Jones, and that therein Respondent failed to advise Jones of a possible conflict of interests. The facts on these counts are long and somewhat complicated, but we must digest them. Essentially, Respondent denied all solicitation in these matters, claiming legitimate references on LaChance and Jones, denying that he ever attempted to get Henson’s claim, and testifying that the witnesses’ testimony concerning Henson was false.

LaChance testified: that he knew Milton Fox but had “always had” Courtney Goodman; that he had not requested anyone to call Respondent or Fox, nor had he communicated with Respondent. He further testified: that Respondent came to him in the hospital ward shortly after the accident, told who he was, “said that he was my insurance lawyer,” talked further to him and got a signed contingent contract; that he did not understand the contents of the contract, for he wasn’t “clear” then; that when he asked Downs later why he had said that he was LaChance’s “insurance company lawyer,” Downs did not answer, but “laughed.” Neither Respondent nor Fox claimed at the hearing that he represented The Insurance Company of Texas. Respondent filed suit for LaChance on Monday, May 28, the second day after he got the contract, and eventually settled the case for $10,000. Mrs. LaChance (Virginia Jones) testified: that she learned of the accident, visited her husband and brother, and “called the insurance company” that night, but that she did not ask for a lawyer, nor did she call the office of Respondent or Fox; that she first met Respondent at St. Anthony’s Hospital four or five days after the accident, at which time he appeared, “said that he represented Elmer’s insurance company” and “he wanted to sign my brother up as his client then”; that her brother, Barney Jones, did execute a contingent fee contract at that time and she, at Respondent’s suggestion, wrote a referral statement on the back of it, Respondent then stating, in substance, that this was being done so that people would not think he got Barney’s case “out of a newspaper or anything like that.” She saw him twice later, and on one occasion he drove her from one hospital to the other. Barney Jones testified: that Respondent came to him in the hospital two or three days after the accident and said that he’d been over to see Elmer and “came over with my sister” and “he wanted my case,” i. e., wanted to represent him; that he, Jones, “signed some papers” and Respondent had his sister sign a slip saying that she recommended him “in case something ever came up about it”; that he had never seen Respondent before, had not asked for him and had asked no one to communicate with him; nor had he asked for Fox. Jones’ case was later settled for $18,000.

Respondent’s defensive evidence on Counts 17 and 19 was long and involved; it consisted largely of his own testimony and that of Fox. It was stated that Fox represented an “International Motor Club” which furnished certain services for a fee, such as towing, bail bonds, etc.; it did not furnish liability insurance. An insurance agency described as “Friedlander-Graham Agency” sold memberships in that “club” (including one to LaChance) and had also written LaChance’s liability insurance in The Insurance Company of Texas. Fox testified that he also represented and was an officer of that insurance agency; Respondent testified that he had done certain miscellaneous police court work, etc. at Fox’s direction, for members of the motor club; that he was directed by Fox to contact Mrs. LaChance, who supposedly needed “help,” that he did so, and later interviewed LaChance, who wanted to hire Fox; that in some way he neglected to put Fox’s name into the contract with his own, but that the fee was shared. Fox testified that a call came to his secretary from Mrs. LaChance (the secretary was never produced as a witness) but that there was no record of this call, although there were records of her subsequent calls; that Mrs. LaChance had previously called the insurance agency; that he gave Respondent a memo and sent him out to Mrs. LaChance; he further testified that this “was probably my case,” but that the “manner” in which the case was acquired was not his full responsibility; that he thought there was a “mutual association” or division of responsibility. Similar testimony was given by him with respect to one or more other counts. He testified that Respondent (with reference to LaChance) went out “to investigate the facts and see if he could help Mrs. LaChance, and that he did not direct Respondent to go to LaChance * * (At this point we interject that if Respondent improperly solicited the LaChance case, it makes no difference whether he did it at Fox’s direction or independently.) The foregoing testimony of Fox appears to be in direct conflict with that of Respondent who testified that: “I was directed by Milton Fox to take a statement and secure a. contract from Elmer LaChance,” although he also testified that he thought that he was. directed to go first to Mrs. LaChance. Peculiarly, an attorney by the name of Courtney Goodman was later brought into this, case as co-counsel and he shared in the fee;. this was the man whom LaChance testified, he had previously had dealings with; we decline to accept the asserted reason given by Fox that Mrs. LaChance requested that Goodman be associated.

Concerning Barney Jones, Respondent testified: that he was directed by Fox toi take Mrs. LaChance to see Jones, and to get a statement and contract from him; that LaChance had asked him to see Jones, but that he did not go until directed by Fox;: that in fact Jones “solicited us”; that he-advised Jones of a possible conflict of interests. Fox testified: that either Mr. LaChance or his wife requested that they visit Jones, but the decision to get Jones’' contract was a “mutual decision” between him and Respondent; that, however, the contracts of LaChance and Jones had both been executed before he ever talked to. either of them.

As to Count 17, we find that Respondent improperly solicited the claim of Elmer LaChance and procured a contingent fee contract from him; also, that he falsely and fraudulently represented to LaChance that he was LaChance’s “insurance lawyer.”' Such conduct was in violation of Rules 4.27, 4.28 and 4.47. On Count 19, we find that Respondent improperly solicited the claim of Barney Jones and thereby procured a contingent fee contract. That action was also in violation of the Rules just cited.

In Count 18 Respondent was charged, as already stated, with soliciting the claim of Carl Henson, the driver of the other car in the LaChance collision, after he had obtained the LaChance contract, and that at least a part of such solicitation occurred after he had already sued Henson. Henson was in Alexian Brothers Hospital; his wife had been killed. A sister and brother were with him frequently. Respondent filed suit for LaChance against Henson on May 28, 1956, two days after the accident, and procured service on him in the hospital on the same day; he also filed suit later for Barney Jones against Henson and had the latter served on June 5th. Carl Henson testified: that within a week after his injury Respondent came to the hospital, left a card with him, introduced himself, “wanted to represent me in the case * and said that he knew something about the case, but did not tell him that he represented LaChance; that he told Respondent that he had insurance and was not interested ; that he saw Respondent there again later, but did not talk with him,' that he subsequently employed another attorney; that he had never seen Downs before and had never asked anyone to communicate with him. It appeared that Henson had executed an affidavit in connection with a motion to quash the service on him, to the effect that he had been unconscious for a period of ten days to two weeks after entering the hospital, and that he was not sufficiently conscious to know that summons had been served upon him. At the Commissioner’s hearing Henson testified that he did not remember the service of either summons, that when he executed the affidavit he thought that it was directed to the fact that he did not remember the summons and that he was unconscious at that time, and that, in fact, he was conscious at times and unconscious at others, except for the “first few days.” Dorothy Farrell, Henson’s sister, testified: that she met Respondent in the hall outside Henson’s ward about three days after the accident; that he inquired if she was a sister, introduced himself, said that he was a lawyer and that “he would like to represent my brother’s case”; that she told him her brother had insurance and was not in condition to see anyone; that a few days later she found Respondent at her brother’s bedside, that he again said “he would like to represent my brother” and that she asked him to get out; that at this time her other brother, Leonard, was in the hall; that she had not requested that Respondent or Fox come to the hospital; that her brother (Carl) knew “what he was doing” at times and at other times he did not; that Carl was in a ward with about eight people; that he was unconscious when she first learned that a summons had been left with him. Leonard Henson, a brother, testified that he found Respondent at Carl Henson’s bedside about two or three days after the accident, and that their sister then told Respondent to get out; that Respondent told him that he wanted to represent Carl, and he told Respondent that Carl would not be interested in his services; that he saw Respondent at the hospital again about a week later and that he, Respondent, still “wanted the case,” but that he told Respondent that if they wanted a lawyer they would get one; that he had not called Respondent or Fox and that he was satisfied that no other member of the family had; that when Respondent was first there his brother’s mind would “come and go.”

Respondent testified categorically that he did not “seek out Carl Henson in order to secure him as a client”; he further testified : that Carl Henson’s testimony was false, that the sister’s testimony was false, and that the brother’s testimony was false; that he never came to Henson’s “bed” and “attempted to secure a contract”; he also denied that he ever talked to the brother Leonard. We do not find that he ever denied being at the hospital, and his testimony does not have the ring of frankness or truth. Much has been said about Carl Henson’s affidavit; his explanation seems reasonable, but even if Carl Henson never talked to Respondent (or if he was unconscious at a time when Respondent tried to talk to him), we find the testimony of the brother and sister to be entirely credible, and that, through them, Respondent was attempting indirectly to solicit Carl Henson in clear violation of Rule 4.27, and also Rules 4.28 and 4.47. Any minor discrepancies here in dates are immaterial. Respondent’s conduct was all the more reprehensible in that he was thus soliciting employment from the very man whom he had taken at least one claim against, and whom he had already sued and caused to be served with summons; this, of course, was in clear violation of Rule 4.06, in addition to the misconduct of solicitation, per se. It appeared elsewhere in this record that Respondent, although he felt that “everything was conclusive” of Henson’s liability, had been unable for a period of at least several weeks to find what he described as an “eyeball” witness who had actually seen this collision; it would seem to be a fair inference that when Respondent approached the Hensons he was attempting to “hedge his bets” on the liability. If he was merely seeking illicit information, he was doing so in the form of a solicitation and, as the Commissioner has well said, — “Those who live by the sword must die by the sword.” On Count 18 Respondent is found to be in violation of Rules 4.06, 4.27, 4.28, 4.32 and 4.47.

We have come now to the conclusion of this disagreeable matter. Respondent’s age is not stated, but he is apparently in his thirties. He has learned early to adopt a false and vicious view of the law, its real meaning and application, and of our Canons of Ethics; he has testified that he was “familiar with the Code of Ethics,” that he studied “ethics,” and that “I understand these ethics.” Based upon the evidence here, we must conclude that Respondent’s study and knowledge of ethics, if such he made or had, has been applied only to the perversion of the ethics of the profession. There has been proven here a persistent pattern of solicitation, along with other most serious infractions. If, as Respondent stated to one or more of the law students, our courts were ever inclined merely to give such a violator a “slap on the wrist,” we trust that those days are gone forever. We have observed no such attitude in the recent actions of our courts. We do not condone the conduct of Respondent in connection with those counts on which he has been held to be not guilty; it is simply our view that those charges were not fully and sufficiently proven.

Counsel for Respondent calls attention to several accepted rules applicable in disciplinary cases generally. These are: that the Commissioner’s findings are advisory only; that disciplinary proceedings are not pursued for the purpose of punishment; that the power to disbar should be exercised with great caution, and that there is no hard and fast rule; that disbarment should not be ordered where a less severe discipline would accomplish the desired end, or where “there is reasonable hope of reformation.” We recognize all of those rules. Counsel’s arguments are largely on the facts; we have considered the facts, independently, on each separate count and collectively. On certain counts counsel argues that there was no accomplishment and no “corpus delicti” shown. We have never heard of the theory of “corpus delicti” being applied in a case such as this; its ordinary definition is: “The body of a crime.” Black, Fourth Ed. p. 413. Thus, it is suggested that Herd never brought in a case, and that Hemenway, Morris and Hoffman never agreed to carry out Respondent’s proposals, etc. Counsel seems to miss the ultimate and essential nature of a violation of the Canons of Ethics. The acts and words of Respondent in themselves constitute the violation, demonstrating both the desire and an attempt to commit the prohibited things and demonstrating, as well, an unfit attitude and mind. The excuse advanced that Respondent used poor judgment” is palpably insufficient. The offenses shown here began about the middle of 1957 and continued until about June 1958. Proceedings were instituted before the Bar Committee as early as November 1959 and continued as late as April 1961. There is no statute of limitations in disbarment proceedings. In re Woodward, Banc, Mo., 300 S.W.2d 385. Respondent has had every opportunity, at every step, to present his explanations and defenses, by witnesses, in person, and by counsel.

In such cases as this it is almost futile to review the authorities, except, perhaps, to glean the guiding principles therefrom. Each case must necessarily stand upon its own facts. We do, however, note here the following, among the comparatively recent cases: In re Randolph, Banc, Mo., 347 S.W.2d 91; In re Sympson, Banc, Mo., 322 S.W.2d 808; In re Oliver, Banc, Mo., 285 S.W.2d 648; In re Woodward, Banc, Mo., 300 S.W.2d 385; In re Conner, Banc, 357 Mo. 270, 207 S.W.2d 492; In re Veach, Banc, 365 Mo. 776, 287 S.W.2d 753; In re Canzoneri, Banc, Mo., 334 S.W.2d 30; In re McLendon, Banc, Mo., 337 S.W.2d 56; In re Gitterman, Banc, 364 Mo. 534, 264 S.W.2d 366. The theme running through these and many other cases is that the primary and ultimate purpose of disciplinary proceedings is to protect the public, the integrity of the Bar, and the courts, from the practice of law by persons unfit to serve as members of the Bar, — and that the courts have “a solemn duty to the public and to the legal profession to enforce the code of ethics governing the conduct of attorneys.” Symp-son, supra. There is no inherent right to continue in the practice of law, but rather it is a mere privilege which will be withdrawn when one proves himself unfit. Can-zoneri, Conner, supra.

Respondent has been found guilty of twelve charges of serious misconduct; he has been found not guilty of those charges where there existed any real, substantial doubt. Our Commissioner con-eluded, in -writing of these cumulative offenses, that: “I can only reluctantly conclude that they show a heart so fatally bent on mischief and such a contemptuous disregard of the Canon(s) of Ethics that for the protection of the public and the Courts, Respondent should be permanently disbarred.” We could express our own thoughts no better.

It is ordered that Kenneth Joseph Downs be permanently disbarred from the practice of law, and that his name shall be stricken from the Roll of Missouri Attorneys. All costs are taxed against the Respondent.

All concur.


author: STOCKARD, Commissioner. PER CURIAM.

text:
    STATE of Missouri ex rel. Norma Lee WILLIAMSON, Respondent, v. The COUNTY COURT OF BARRY COUNTY, Missouri and Lester Loftin, M. F. Whisman, and Emory E. Smith, Judges of the County Court, Appellants.
    No. 49238.
    Supreme Court of Missouri, Division No. 2.
    Jan. 14, 1963.

      Joe R. Ellis, Pros. Atty., Barry County, Cassville, for appellants.
    Edward V. Sweeney, Monett, for respondent.
   STOCKARD, Commissioner.

This is an appeal in a mandamus proceeding to compel the “County Court of Barry County, Missouri” and the individual judges thereof to issue warrants to relator in payment of the balance of unpaid salary claimed to be due her as deputy clerk of the circuit court of Barry County. We note here that the county court as such is not a suable entity, and was improperly designated as a party.

Prior to January 15, for each of the years 1959, 1960 and 1961, pursuant to the requirements of Section 50.690 (all statutory references are to RSMo 1959, V.A.M.S.), the circuit clerk of Barry County filed his budget estimate with the county clerk of Barry County, a third class county, which included the salary of a deputy circuit clerk at $2,400 per year. In each of the years the county court approved and budgeted only $2,100 for this purpose. Section 483.-345 authorizes the appointment by the circuit clerk of “such number of deputies and assistants” with the approval of the judge of the circuit court “as such judge shall deem necessary for the prompt and proper discharge of the duties of his office.” It is also provided that in the order permitting the circuit clerk to appoint deputies and assistants the judge of the circuit court “shall fix the compensation of such deputies or assistants.” Pursuant to this statute and on April 13, 1959 the circuit clerk appointed relator as deputy circuit clerk with the approval of the judge of the circuit court and her salary was fixed by the circuit judge at $2,400 per year. Under this appointment she served only one month. On September 1, 1959 she was reappointed by the circuit clerk, her appointment was approved by the circuit judge, and her salary was fixed at $2,400 per year. She served continuously from the latter date to the date of trial. There is no contention on this appeal that there was not full and adequate compliance with the requirements of Section 483.345 if that statute is valid. Each month relator filed with the county court a written request for the allowance of her salary in the amount of $200. Each month the comity court issued a warrant for $175 for her salary.

Relator sought a writ of mandamus to compel the judges of the county court to issue warrants to her for the difference between the amount paid her and that fixed by the judge of the circuit court. The trial court issued the writ of mandamus as prayed, and the judges of the county court and Barry County have appealed.

Appellants first assert that mandamus does not lie because respondent has a complete and adequate remedy at law. However, this court has expressly held that in the situation we have here mandamus 'will lie at the relation of a deputy circuit clerk to compel the judges of the county court to issue a warrant to relator in payment of alleged unpaid salary. State ex rel. Spratley v. Maries County, 339 Mo. 577, 98 S.W.2d 623, 624. See also Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845. Appellants next assert that to pay relator the sum sought would be an unlawful act, and that mandamus will not lie to compel the performance of an unlawful act. This contention presupposes the act to be unlawful; the very issue to be decided. If it be determined on this appeal that it is contrary to law for appellants to issue the requested warrants, we will rule that mandamus will not compel the performance of that act.

Appellants assert that Section 483.345 is unconstitutional because (a) it violates Article VI, Section 7, of the Constitution of Missouri which provides that in each county not framing and adopting its own charter or adopting an alternative form of county government the county court “shall manage all county business as prescribed by law,” and (b) because “Article II of the Constitution of Missouri divided State Government into three branches and provides that no branch shall exercise any powers belonging to the other.”

The issuance of the requested warrants to pay the salary of relator, if required by law/ is a ministerial duty, and “Ordinarily a public officer may not question the constitutionality of a statute as a defense to mandamus to compel him to perform a ministerial duty.” State ex rel. S. S. Kresge Co. v. Howard, 357 Mo. 302, 208 S.W.2d 247, 249; State ex rel. State Board of Mediation v. Pigg, 362 Mo. 798, 244 S.W. 2d 75; State ex rel. Thompson v. Jones, 328 Mo. 267, 41 S.W.2d 393. However, under certain circumstances such challenge may be made, see the Howard and Pigg cases, supra; appellants do purport to challenge the constitutionality of Section 483.-345; respondent does not assert that they are not entitled to do so; and we cannot say that if the contentions are otherwise preserved for appellate review that they are colorable only. Therefore, we shall rule such of the contentions which have been preserved for appellate review.

As to the first contention, Article VI, Section 7 of the Constitution of Missouri does not authorize the county court to manage the county business without any restraint or limitation on its authority. The provision is that the county court shall manage the county business “as prescribed by law.” Compliance with Section 483.345, if otherwise valid, would constitute the management of county business “as prescribed by law.” Therefore, there can be no conflict between Section 483.345 and Article VI, Section 7 unless the statute is invalid for some other reason. Appellants’ first contention is entirely without merit.

As to the second contention, while appellants pleaded generally in their return that Section 483.345 was unconstitutional because “it contravenes and violates Article II of the Constitution of Missouri by allowing the judicial department to usurp the functions of .the executive or administrative branch of the government,” no mention whatever is made of this contention generally or specifically in appellants’ motion for new trial. In no event is a statute presumed to be unconstitutional,' and it has repeatedly been held that in order to preserve for appellate review the contention that a statute or ordinance is unconstitutional “the question must be raised at the first available opportunity: * * * [t]he sections of the Constitution claimed to have been violated must be specified: * * * [t]he point must be presented in the motion for new trial, if any: * * * [a]nd it must be adequately covered in the briefs.” City of St. Louis v. Butler Co., 358 Mo. 1221, 219 S.W.2d 372. See particularly Red School Dist. No. 1 of St. Charles County, Mo. v. West Alton School Dist. No. 2 of St. Charles County, Mo., Mo., 159 S.W.2d 676; State v. Williams, 337 Mo. 987, 87 S.W.2d 423; Phillips Pipe Line Co. v. Brandstetter, 363 Mo. 904, 254 S.W.2d 636; State ex rel. Barnett v. Sappington, Mo., 260 S.W.2d 669; Layson v. Jackson County, Mo., 365 Mo. 905, 290 S.W.2d 109, all of which rule that a constitutional question not presented in the motion for new trial is not preserved for appellate review. Assuming that appellants’ point in their brief adequately presented for appellate review the contention that Section 483.345 is unconstitutional on the basis that it violates Article II of the Constitution of Missouri, which we doubt, we conclude that they expressly waived any such contention by failing to preserve the point in their motion for new trial. We should not purport to determine whether the trial court erred as to an issue not presented to it in the motion for new trial, and as to which under the long established rules of procedure the appellants abandoned in the trial court. Therefore, for the purpose of the determination of the issues on this appeal we shall consider that Section 483.345 constitutes a valid legislative directive as to the manner and method of fixing the salary of a deputy circuit clerk.

Appellants next assert that since the salary of relator was placed in the budget approved by the county court at $2,100 per year payable at $175 per month, the expenditure of county funds to pay relator any salary over and above that amount would be a violation of the county budget law, Sections 50.670 to 50.740, inclusive, and 'particularly Section 50.740 which provides that “Any order of the county court of any county authorizing’ and/or directing the issuance of any warrant contrary to any provision of this law shall be void and of no binding force or effect; * * *.”

In Gill v. Buchanan County, 346 Mo. 599, 142 S.W.2d 665, after stating that the salaries of county judges are fixed by the Legislature, it was held that “the county court cannot change them, by either inadvertently or intentionally providing greater or less amounts in the salary fund in the budget. The action of the Legislature in fixing salaries of county officers is in effect a direction to the county court to include the necessary amounts in the budget. Such statutes are not in conflict with the County Budget Law but must be read and considered with it in construing it. They amount to a mandate to the County Court to budget such amounts. Surely no mere failure to recognize in the budget this annual obligation of the county to pay such salaries could set aside this legislative mandate and prevent the creation of this obligation imposed by proper authority.” The order of the circuit judge made pursuant to Section 483.345 constituted a direction or mandate to the county court to include $2,400 in the budget for the purpose stated in the order, and the county court had no more authority to ignore this valid directive by budgeting a lesser amount than it would have to budget an amount for salaries of county judges at an amount greater than that fixed by the Legislature. The provisions of Section 50.740 cited and relied on by appellants, and quoted above, do not prohibit the issuance of the warrants in this case. The warrants would not be issued contrary to any provision of the budget law when that law is read with and construed in its relation to Section 483.345.

The last point in appellants’ brief is as follows: “There was not sufficient money in Class IV of the budget for the year 1959 or 1960 with which to pay the salary claimed by respondent. To have paid the claimed salary would have been in violation of law.” To justify our subsequent comments we disregard the inadequacy of this point. See Civil Rule 83.05, V.A.M.R. We have held that for the county court to have issued warrants to pay the claimed salary of relator would not have been in violation of the county budget law, and appellants point out no other law which would be violated. The trial court expressly found that “there is now in the hands of the treasurer of Barry County, Missouri, sufficient funds to pay the indebtedness due to relator.” Appellants make no effort to demonstrate why that finding is not correct. However, we are not concerned on this appeal with whether the warrants when issued can be paid by the treasurer of Barry County, see Section 50.210, but only with whether they should be issued. Appellants have not demonstrated on this appeal that it would be a violation of the law to issue the warrants, nor have they demonstrated that the finding of the trial court that the money is available is erroneous, if that would constitute a defense in this proceeding.

The judgment is affirmed as to the named judges of the county court.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.