author: EAGER, Presiding Judge.

text:
    RECEIVABLES FINANCE CORPORATION, a Corporation, Respondent, v. Frank H. HAMILTON and William T. Hamilton, Appellants.
    No. 51494.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.
    Milton Yawitz, Allen A. Yoder, St. Louis, for plaintiff-respondent. Rassieur, Long, Yawitz, Koenig & Schneider, St. Louis, of counsel.
    John D. Gallagher, Clayton, for defendants-appellants.
   EAGER, Presiding Judge.

Plaintiff, assignee of Shainman & Company, Inc., a bankrupt, sought to recover against the defendants individually as endorsers of three trade acceptances. The suit was in three counts. The instruments were drawn by Miller-Shainman Company (the predecessor in name of plaintiff), two on August 30, 1960, and one on November 18, 1960, in the respective amounts of $15,-000, $16,000, and $20,000; the first two were accepted by Westroads Humpty Dumpty Toy & Record acting through defendants, who were therein specifically designated as its President and Secretary, and the third was accepted by Humpty Dumpty Playland Stores, Inc., acting through defendants, also specifically designated as its President and Treasurer. Both acceptors were corporations. All three instruments were regularly delivered; they were payable, respectively, on December 10, 1960, December 29, 1960, and January 10, 1961. On the backs of the first two instruments the following endorsements were made:

“William T. Hamilton Pres. Frank H. Hamilton Secy.”

On the third, the identical endorsements appear except that the abbreviation “Sec’y” was scratched out and “Treas.” written in its place. The facts as to the drawing, the acceptance and delivery, and the endorsements of the three instruments are stipulated, and it is also agreed that all three were duly presented for payment, that payment in each instance was refused, that the defendants were given notice of dishonor and that demand was duly made. The sum of $16,185 had been paid on the third instrument, nothing on the other two. The defendants were officers of the two corporations which accepted the instruments ; both corporations were in the business of selling toys, and Shainman & Company, Inc. was a wholesale distributor of toys.

The essential defense was that the endorsements of the defendants were made and affixed in their corporate capacities and not as individuals; that they are not individually liable. No evidence whatever was introduced except the stipulation of facts, which has already been digested, and the instruments themselves. It was conceded that the plaintiff was the owner of all title and interest in each of the instruments. The court entered judgment for plaintiff in the sum of $34,814.37, with interest from the respective due dates. A motion of the defendants for judgment or a new trial was overruled by lapse of time, and this appeal followed.

The sole question here is whether the endorsements of these defendants, with the added abbreviations of “Pres.” and “Sec’y.” (“Treas.” in one instance) created individual liability on their part. Before going further we quote § 401.020, RSMo 1959, V.A.M.S., which is identical with § 20 of the Uniform Negotiable Instruments Act: “Where the instrument contains or a person adds to his signature words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.” This statute was first enacted in 1905 (Laws 1905, p. 243 et seq.) and has existed in the same form ever since.

The position of the defendants here is that one is not personally liable on such an endorsement, “where he adds to his signature words indicating that he signs for or on behalf of a principal or in a representative capacity,” thus literally following the wording of the first half of § 401.020 quoted above; and, further, that even if such words did not disclose the principal, plaintiff has failed to meet its burden of showing that defendants were principals. Plaintiff, contra, asserts: that no principals were disclosed in the endorsements, that the abbreviations added were mere “descriptio personae,” that a construction considering these as corporate endorsements would be irrational, and that plaintiff fully met its burden of proof.

There have been diverse constructions of the section in question and sundry criticisms of its wording. See, Uniform Laws Annotated, Vol. S, Part 1, § 20 note, and also pocket parts; Finch v. Heeb, Mo.App., 131 S.W.2d 146. However, the principles which we shall state seem to have emerged rather clearly, according to a substantial weight of authority. We do not confine ourselves to Missouri authorities, for few are really applicable.

Where a person, acting with sufficient authority, signs or endorses an instrument in a corporate name with his own signature affixed as an officer, the principal being thus disclosed, he is not individually liable. There can be no doubt of this principle. Reifeiss v. Barnes, Mo.App., 166 S. W.2d 225; Fricke v. Belz, 237 Mo.App. 861, 177 S.W.2d 702. The difficulties arise from the surprising number of variations in the modes of signing.

If one signs or endorses an instrument in his individual name, and adds merely a descriptive term or title after his name, such as “Pres.,” “Sec’y.,” “Trustee,” etc., without a disclosure of the principal for whom (or which) he is thus acting, he is liable personally, and the addition is merely “descriptio personae.” Rudolph Wurlitzer Co. v. Rossmann, 196 Mo.App. 78, 190 S.W. 636; Myers v. Chesley, 190 Mo.App. 371, 177 S.W. 326; Gayle-Blevins Lumber Co. v. Delhomme, La.App., 159 So.2d 355; Gross v. Lamme, 77 Nev. 200, 361 P.2d 114; Lawhorn v. Wellford, 179 Tenn. 625, 168 S.W.2d 790; Kessel v. Murray, 197 Iowa 17, 196 N.W. 591, 33 A.L.R. 1346; Daniel v. Buttner, 38 Wash. 556, 80 P. 811; Jump v. Sparling, 218 Mass. 324, 105 N.E. 878. In such cases it is generally held that parol evidence is not admissible to establish the fact that only a corporate liability was intended.

Some courts have held, on signatures of widely varying types, that the instruments were ambiguous, and that parol evidence should be admitted to ascertain the real intent of the parties. Finch v. Heeb, Mo.App., 131 S.W.2d 146; Washington Mutual Fire Ins. Co. v. St. Mary’s Seminary, 52 Mo. 480; McClellan v. Reynolds, 49 Mo. 312; Fricke v. Belz, 237 Mo.App. 861, 177 S.W.2d 702; Robertson v. Club Ephrata, 48 Wash.2d 285, 293 P.2d 752. But it is very generally held that, in order to create such an ambiguity, there must be something more than the mere addition of abbreviations such as “Pres.,” “Sec’y.,” or “Treas.,” and usually the corporate name must appear in some manner on the instrument itself in order to permit such evidence. Myers v. Chesley, 190 Mo.App. 371, 177 S.W. 326. Evidence has thus been admitted: where the corporate name appeared above that of the individual but no title appeared after his name (Belz, supra); where other related documents, generally referred to in the note, clearly showed a corporate liability (Washington Mutual and Robertson, supra) ; and, where the body of the instrument clearly showed that it was solely a corporate obligation (McClellan v. Reynolds, 49 Mo. 312).

In this connection we note that a contract of endorsement is a different and separate contract from that shown on the face of a negotiable instrument. Gross v. Lamme, 77 Nev. 200, 361 P.2d 114; Dewey v. C. I. T. Corp. (Tex.Civ.App.), 374 S.W.2d 298; Davis v. McColl, Mo.App., 184 S. W. 920; 10 C.J.S. Bills and Notes § 217a, pp. 708-709. And in Lamme and Dewey, supra, it is clearly indicated that where liability on an endorsement is involved, the disclosure of the principal must appear in the endorsement itself.

We are not really concerned here with the admission of parol evidence upon a showing of ambiguity. Defendants offered no parol evidence whatsoever, but submitted their case upon the stipulation of facts and the instruments themselves. We are thus required to determine the effect of the endorsements as a matter of law. No reformation of the instruments has been sought, though such has been granted in some instances, when all requirements were present. See Rudolph Wurlitzer Co. v. Rossmann, 196 Mo.App. 78, 190 S.W. 636, 639. Defendants cite and seem to rely largely upon the case of Finch v. Heeb, Mo. App., 131 S.W.2d 146. We do not consider the case to be applicable here, for the signatures of the individuals sued there as makers appeared under the typed name of their principal, the “Chaffee Lodge No. 735, I. O. O. F.,” and the word “Trustees” appeared both above and at the side of their names; the ambiguity supposedly arose from the body of the note which recited that “we as principal, promise to pay * * *On the facts of that case we have no quarrel with the ruling admitting parol evidence, if indeed the court did not see fit to direct a verdict for the individual defendants. The name of the principal was disclosed on the face of the note. Some of the discussions there of ambiguity and burden of proof were perhaps unnecessary to the decision. Our situation, depending as it does upon the form of the present endorsements, is wholly different. The two other cases cited by defendants do not really merit discussion. And it is perhaps appropriate to repeat here that defendants did not seek to show the supposed intent of the parties by an offer of parol evidence upon a theory of ambiguity.

We note further that it would appear to have been wholly illogical for the holder of the instruments to require endorsements by the respective corporate. makers, when their liability was already firmly established as such makers. Gayle-Blevins Lumber Co., Inc. v. Delhomme, La.App., 159 So.2d 355; Chesebro, Robbins & Graham, Inc. v. Leadbetter, 19 Conn.Sup. 422, 116 A.2d 578.

No discussion of the burden of proof is necessary. Plaintiff here made a prima facie case of individual liability upon the defendants’ endorsements when it introduced the instruments and the stipulation of facts. Defendants thereafter offered no evidence whatever and plaintiff had no further burden, either of procedure or proof. The court could, under these circumstances, do nothing but render judgment for plaintiff. The amount of the judgment, as such, is not disputed here.

The judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    STATE ex rel. Don LeNEVE, d/b/a LeNeve’s TV and Appliance Company, Relator, v. Honorable James A. MOORE, Judge of the Circuit Court of Jackson County, Respondent. STATE ex rel. Harold F. GOEBEL, Relator, v. Honorable William M. TURPIN, Judge of the Circuit Court of St. Charles County, Respondent.
    Nos. 51921, 51993.
    Supreme Court of Missouri, En Banc.
    Nov. 14,1966.

      Harold L. Caskey, Butler, for relator LeNeve.
    Adolph K. Schwartz, St. Louis, for relator Goebel.
    Richard P. Shanahan, Jones & McDaniel, Kansas City, for respondent Moore.
    Robert V. Niedner, Paul F. Niedner, Niedner, Niedner & Moerschel, St. Charles, for respondent Turpin.
   DONNELLY, Judge.

These are original proceedings in prohibition, consolidated for the purpose of this opinion.

In No. 51921, Relator, a resident of Bates County, Missouri, seeks to prohibit Respondent, Judge Moore, from proceeding with the trial of a tort action brought' against Relator in the Circuit Court of Jackson County, Missouri. The cause of action accrued in Jackson County, Missouri, on April 7, 1965. The action in question was instituted on October 26, 1965.

In No. 51993, Relator, a resident of St. Louis County, Missouri, seeks to prohibit Respondent, Judge Turpin, from proceeding with the trial of a tort action brought against Relator in the Circuit Court of St. Charles County, Missouri. The cause of action accrued in St. Charles County, Missouri, on May 9, 1965. The action in question was instituted on October 20, 1965.

Our venue statute, § 508.010, RSMo 1959, V.A.M.S., was amended, effective October 13, 1965, by adding the following: “(6) In all tort actions the suit may be brought in the county where the cause of action accrued regardless of the residence of the parties, and process therein shall be issued by the court of such county and may be served in any county within the state; provided, however, that in any action for defamation or for invasion of privacy the cause of action shall be deemed to have accrued in the county in which the defamation or invasion was first published.”

The question for determination in both cases is whether this statute shall operate retrospectively or prospectively. If the statute may operate retrospectively, the Respondent Judges should be allowed to proceed in the counties where the causes of action accrued. If the statute must operate prospectively, the Respondent Judges should be prohibited from proceeding in the counties where the causes of action accrued.

Article I, Section 13 of the Constitution of Missouri, 1945, V.A.M.S., provides: “That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.”

Applicable rules of law are stated in State ex rel. Clay Equipment Corporation v. Jensen, Mo.Sup., 363 S.W.2d 666, at 669, as follows: “The mentioned constitutional provision does not apply in some cases, as for example, to a statute dealing only with procedure or the remedy. In such case the statute applies to all actions falling within its terms, whether commenced before or after the enactment, that is, unless a contrary intention is expressed by the legislature, and a statute affecting only the remedy may apply to a cause of action existing at the time the statute was enacted. See Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852. Darrah v. Foster, Mo.Sup., 355 S.W.2d 24, 29(3); Aetna Insurance Co. v. O’Malley, 342 Mo. 800, 118 S.W.2d 3, 8. The rule governing the applicability of a procedural statute is stated in Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40, 43, as follows: ‘No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. Where a new statute deals with procedure only, prima facie it applies to all actions — [including] those which have accrued or are pending and future actions.’ * * *

We come then to the questions: (1) whether the statute deals only with procedure; and (2) whether its language evidences a clear intention on the part of the Legislature that it shall operate prospectively only.

In an annotation contained in 41 A.L.R. 2d 798, we find this statement: “No cases prohibiting the retroactive application of venue statutes on constitutional grounds have been found; this is so whether the statute was applied to a cause of action accrued prior to, but sued upon after, the effective date of the statute, or to an action pending in the trial court on the effective date of the statute.”

In the cases of In re Robertson (D.C. Mo.), 127 F.Supp. 39, and United States v. National City Lines, Inc., (D.C.Cal.), 80 F.Supp. 734, “venue” was characterized as a procedural matter. In the case of Dowlen v. Fitch, 196 Tenn. 206, 264 S.W.2d 824, 266 S.W.2d 357, 41 A.L.R.2d 791, an action for injuries sustained in an automobile accident was brought in the county where the accident occurred. The defendants were residents of another county of the State. The accident occurred before the effective date of a statute providing for such venue. The Supreme Court of Tennessee held that the defendants had no vested right in the venue provisions existing at the time the cause of action accrued, and construed the amendment of the venue státute as applicable to actions brought after the effective date of the amendment.

We are of the opinion that a venue statute, as a general rule, is procedural or remedial in character and may apply to a cause of action existing at the time it was enacted, unless the Legislature has expressed a contrary intention.

“The basic rule of statutory construction is to seek the intention of the lawmakers and, if possible, to effectuate that intention, and the court should ascertain the legislative intent from the words used, if possible, and should ascribe to the language used, its plain and rational meaning. * State ex rel. Clay Equipment Corporation v. Jensen, Mo.Sup., 363 S.W.2d 666, at 669. Our venue statute, as amended, provides that in all tort actions “ * * * the suit may be brought in the county where the cause of action accrued * * *(Italics ours.) The Legislature could have expressed an intention to look to the future by substituting the word “accrues” for the word “accrued.” It did not do so. We think this evidences a clear intention on the part of the Legislature that the statute may operate retrospectively.

We recognize that this Court, in the Jensen case, held the statute there in question prospective in its application, stating at 363 S.W.2d 666, 670: “ * * * We cannot construe the statutory provision to apply to the commission of torts which predated the effective date of the Act. To do so would be to attach a new obligation or duty and impose a new disability in respect to prior acts and transactions. To apply the statute retroactively would be to change the legal effect of past transactions. The commission of a tort by the foreign corporation imposed no such obligation or duty, nor did it have such a legal effect, when the alleged tort was committed. * * *

However, the ruling in the Jensen case is not applicable here. There, § 351.630(2) RSMo 1959, as amended Laws 1961, p. 257, V.A.M.S., provided: “If a foreign corporation commits a tort, excepting libel and slander, in whole or in part in Missouri against a resident or nonresident of Missouri, such acts shall be deemed to be doing business in Missouri by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the secretary of state of Missouri and his successors to be its agent and representative to accept service of any process in any actions or proceedings against the foreign corporation arising from or growing out of the tort. Service on the secretary of state of any such process shall be made by delivering to and leaving with him or with any clerk having charge of the corporation department of his office, duplicate copies of the process. The committing of the tort shall be deemed to be the agreement of the foreign corporation that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served personally within the state of Missouri.” (Italics ours.)

That statute (since declared invalid for failure to meet the requirements of due process, State ex rel. M. Pressner and Company v. Scott, Mo.Sup., 387 S.W.2d 539) attached new disabilities in respect to torts already committed. It attempted to enlarge jurisdiction in Missouri over foreign corporations committing torts in this State. In affected the power of Missouri courts to adjudicate rights and obligations of foreign corporations. The statute in the instant case affects only where, in Missouri, rights and obligations of litigants may be adjudicated. The fundamental distinction is that the statute in the Jensen case affected substantive rights whereas the statute here affects only remedial or procedural rights.

We hold that § 508.010(6), RSMo 1959, as amended Laws 1965, V.A.M.S., may operate retrospectively and that Respondent Judges may proceed in the counties where the causes of action accrued.

We do not, in these proceedings in prohibition, rule other questions raised in Rela-tors’ briefs. The preliminary rules in prohibition are ordered quashed.

All concur except HYDE, J., and STORCKMAN, C. J., who concur in result.


author: HOLMAN, Judge.

text:
    Terry Lee SMITH, a minor, by his Mother and Next Friend, Peggy Smith, Appellant, v. CONSOLIDATED SCHOOL DISTRICT NO. 2, Joe Herndon, Superintendent of Consolidated School District No. 2, and H. Robert Cradock, Respondents.
    No. 51349.
    Supreme Court of Missouri, En Banc.
    Nov. 14, 1966.

      Donald F. Price, Clem W. Fairchild, Herbert M. Kohn, Kansas City, of counsel, Linde, Thomson, VanDyke, Fairchild & Langworthy, Kansas City, for appellant.
    James H. Greene, Jr., Raytown, E. E. Thompson, Kansas City, of counsel, Pop-ham, Thompson, Popham, Trusty & Conway, Kansas City, for respondents.
   HOLMAN, Judge.

Plaintiff, a minor, sued the defendant school district, its superintendent, and a physical education instructor for alleged negligence, praying $35,000 in damages for his personal injuries. Each defendant filed a separate motion to dismiss for failure to state a claim on which relief could be granted. All three motions were sustained. Plaintiff filed his motion to amend the judgment or for a new trial, and therein stated, among other things, that the court erred in refusing to grant leave to amend. No request for leave to amend appears in the record and, though counsel argue here that an amendment should have been permitted, there is nothing before us on that point. The motion was overruled and plaintiff appealed in due course.

The appeal was originally heard in Division Two. An opinion was prepared which was not adopted and the case was thereafter transferred to Court en Banc. Additional briefs were filed and the cause was reargued and resubmitted. An opinion was thereafter prepared which was not adopted and the cause has recently been reassigned to the undersigned. Portions of the last-mentioned opinion are here adopted without the use of quotation marks.

The school involved was the South High School at Raytown. The injury was alleged to have been received in a wrestling class while plaintiff was practicing “holds and falls and other wrestling experiences.” The petition alleged, in substance, omitting essentially formal matters: that the State Department of Education had not ordered, suggested or recommended wrestling as a part of the physical education curriculum, but that defendants made it a required part thereof for the school year 1963-1964; that therein it was the duty of the defendants to “promote rules, regulations, instructions, teaching and supervision” to protect the students; that on January 24, 1964, plaintiff was engaged in that activity, as required, and that he had no knowledge of wrestling but relied on the defendants, and was injured. It was further alleged that defendants, jointly and severally, were negligent: (1) in failing to properly instruct plaintiff and in failing to “designate rules and regulations” for wrestling activities; (2) in failing to ascertain if plaintiff and his wrestling partner understood the “instructions so given,” the danger of injury, and the methods of protection; (3) that “defendants” were present and saw or could have seen that plaintiff was about to be injured and failed to warn him or stop the wrestling; (4) in failing to exercise “ordinary care under the circumstances,” and in failing to “employ” proper instruction; .(5) in failing to “employ proper supervision,” and (6) in failing to perform their statutory duty “to select and employ a suitable and competent instructor.” As to the school district alone, plaintiff alleged that it failed to “select and employ a suitable and competent Superintendent of Schools to control the wrestling and employment of competent teachers,” that it failed to eliminate wrestling from its curriculum and that it thus failed to comply with “the laws of the State.” It was further alleged that “as a direct and approximate result” of the claimed negligence plaintiff sustained an injury to his shoulder and to other specified parts of his body.

The points made by plaintiff’s counsel, including- those in their original and supplemental briefs, are: that the doctrine of sovereign immunity is archaic and it should be abolished; that defendants acted outside their legal and statutory powers; that an amendment of the petition should have been permitted; that the motions to dismiss should have been considered separately; that if any immunity be held to exist, the individual defendants do not share it; that the individual defendants are liable for their own acts, whether of misfeasance or nonfeasance; that it was the duty of the Superintendent to employ only “Totally Proficient” persons to instruct in an “unauthorized activity”; and, finally, that if the instructor Cradock was negligent then Herndon is also liable under the principles applicable to a master-servant relationship.

The case is briefed jointly for the defendants, but with differing issues. Counsel say, in essence, that the rule of sovereign immunity is fully effective, and that it protects the school district from all liability; that the individual defendants were performing governmental and discretionary functions and that they are not liable in actions for negligence; that the petition alleges, as to them, mere nonfeasance for which they would not be liable in any event; that they stood in the relation of loco parentis to the plaintiff, and for that reason are not liable for an unintentional tort.

Before reaching the points of ultimate controversy, we shall clear up a few others. The record made on the sustaining of each motion was that the motion to dismiss was sustained. This was not followed by an order that the cause was dismissed as to the respective defendant, which is certainly a more acceptable practice if that is what is really intended. However, as stated, no request for leave to amend is shown, and the plaintiff filed his motion to “Amend Judgment” or for a new trial, obviously regarding the order as a final judgment. That motion was overruled. Under the authorities the order now appealed from constituted a final, appealable judgment. Jones v. Williams, 357 Mo. 531, 209 S.W.2d 907; Missouri Military Academy v. McCollum, Mo.App., 344 S.W.2d 636; Heard v. Fry’s Estate, Mo.App., 336 S.W.2d 729.

Counsel for plaintiff insist that the inclusion of wrestling in the curriculum as a required course in physical education was outside of the defendants’ lawful authority. They cite nothing which so shows. Both sides go outside the record in dis-~ cussing supposed regulations and manuals of the State Department of Education. Section 163.250, RSMo 1959, cited by plaintiff, which was repealed, effective July 1, 1965, Laws 1963, p. 200, and replaced by § 161.102 Cum.Sup.1965, merely gives the Department authority to adopt rules and regulations for courses in physical education and to compile and promulgate a manual of physical education. The statute is permissive, not prohibitory, and we may not assume that the Department has prohibited courses in wrestling or that our schools would include such a course, if prohibited. Plaintiff merely pleads that the Department “does not order, suggest or recommend wrestling * * We find nothing to indicate that wrestling was being taught “outside the powers and authority granted by statute” and we shall not further consider any such allegations as lending legal support to the plaintiff’s petition. If any regulation of the Department of Education actually prohibited wrestling, the regulation should have been pleaded specifically. The courts will not interfere with the exercise of a school district’s discretion except in a case of clear abuse, fraud, or some similar conduct. 78 C.J.S. Schools and School Districts § 99.

The theory that Cradock, the physical education instructor, was an employee of Herndon, the Superintendent, and that Herndon would be liable for his acts in a master-servant relationship, is wholly fallacious. It is a matter of public knowledge, and we may say of judicial notice, that all teachers in the public schools are employees of the school district and are employed by it on contracts. See §§ 163.-080-163.100, RSMo 1959. The superintendent may presumably recommend, but he does not employ. He is neither the master nor the employer of any teacher. These conclusions also refute the allegations to the effect that Herndon failed to employ a suitable and competent instructor for wrestling.

Plaintiff’s counsel ask us to review the doctrine of sovereign immunity and to abolish it by judicial decree. As their principal authority they cite and quote from an article in Vol. 30, NACCA Law Journal, 1. c. 30, which in turn, cites three state cases, and two under the Federal Tort Claims Act. For more than a century the courts of Missouri have uniformly held generally that political subdivisions of the state are not subject to liability in suits for negligence. Reardon v. St. Louis County, 36 Mo. 555; Clark v. Adair County, 79 Mo. 536; State ex rel. Jordon v. Haynes, 72 Mo. 377; Cassidy v. City of St. Joseph, 247 Mo. 197, 152 S.W. 306; Lamar v. Bolivar Special Road District, Mo.Sup., 201 S.W. 890; Zoll v. St. Louis County, 343 Mo. 1031, 124 S.W.2d 1168; Todd v. Curators of University of Missouri, 347 Mo. 460, 147 S.W.2d 1063; Cullor v. Jackson Township, Putnam County, Mo.Sup., 249 S.W.2d 393. School districts are political subdivisions of the state. Art. 10, § 15, Constitution of Missouri, V.A.M.S., § 70.210, RSMo 1959, V.A.M.S. As such, school districts have long been held immune from liability in tort for negligence. Cochran v. Wilson, 287 Mo. 210, 229 S.W. 1050; Krueger v. Board of Education of City of St. Louis (Banc), 310 Mo. 239, 274 S.W. 811, 40 A.L.R. 1086; Dick v. Board of Education of City of St. Louis, Mo.Sup., 238 S.W. 1073. Our holdings have been so uniform that nothing is to be gained by restating the reasons for and against the doctrine of sovereign immunity.

We are aware that the theory of governmental immunity has been severely criticized, largely by text writers and in law review articles. Borchard, Government Liability in Tort, 34 Yale L.J. 1, 129, 229; 2 Harper & James, The Law of Torts, § 29.3, p. 1610; Prosser on Torts, 3rd Ed., Ch. 27, p. 1001 et seq.; 22 University of Chicago L.R. 610. It seems clear, however, that the principle of governmental immunity still prevails in the majority of states. With particular reference to schools and school districts see 86 A.L.R.2d 499 et seq. Some of the erosions of the rule, almost inextricably mixed in the discussion of the more questionable immunities of municipal corporations, appear in Prosser, supra, at page 1012. We regard the rule in Missouri as one of fixed public policy, and any abandonment of it, either as to political subdivisions or the state itself, should come through the legislative process. Several states have taken such action. 86 A.L.R.2d 1. c. 502, 503. The chaos which resulted in California upon the sudden judicial rejection of the whole theory of governmental immunity is fully discussed in 36 Southern Calif.L.R. p. 161. It was necessary for the legislature to immediately enact a moratorium to preserve the status quo until the whole subject could be intelligently considered at the next legislative session. Calif.Stats.1961, ch. 1404.

We are inclined to agree with the statements made by the Supreme Court of Colorado in Tesone v. School District No. RE-2, in the County of Boulder, 152 Colo. 596, 384 P.2d 82, 1. c. 84, 85, when it said, in part: “We have held repeatedly that if liability is to arise against a governmental agency for the negligent acts of its servants engaged in a governmental function, this liability, heretofore unknown to the law of this state, must be a creation of the legislative branch of the government. I repeat again that it is not the function of the judiciary to create confusion and instability in well settled law, nor is it within the province of judges to refuse to apply firmly established principles of law simply because those rules do not conform to the individual judge’s philosophical notion as to what the law should be. * * * Courts are not arbiters of public policy. * * * When successive legislative sessions come and go without amending or doing away with the rule; when hundreds of county commissioners through their organization resist a change; when the work of countless members of the boards of school districts throughout the state would be directly affected by a change in the law which would operate retrospectively; when the heavy majority of such board members and many of their constituents are opposed to ‘repudiation’ of the rule on well grounded concepts of public policy; how can it be said with certainty that the rule is so manifestly ‘unjust’ or that it is such an ‘anachronism’ that the judiciary should usurp legislative powers and do away with it?” The motion of the defendant School District to dismiss was properly sustained.

We reach now the question of the liability of the defendant Herndon. We have already denied plaintiff’s contentions that Herndon as master was liable for any negligence of Cradock, the instructor, and that he was negligent in failing to employ a competent instructor. As applicable to Herndon, the petition alleges generally: that the defendants failed to properly instruct plaintiff, failed to ascertain if he understood the instructions given and the dangers involved, failed to employ “proper supervision,” failed to select and employ a competent instructor, failed to eliminate wrestling from the curriculum, and that defendants, though present at the time of the occurrence, failed to warn plaintiff or to stop the wrestling. No facts are alleged which would directly connect Hern-don in any way with a duty to instruct anyone in the wrestling course, to check on the plaintiff’s individual knowledge, or personally to supervise the activities. And, he was not required to eliminate wrestling from the curriculum, for it is not shown to have been an unauthorized activity. The only remaining allegation is that the defendants, though present, failed to warn plaintiff of the dangers or to stop the wrestling. The facts thus alleged are insufficient to cast any such duty on Hern-don, especially in view of the fact that a presumably competent and certificated instructor had been employed and was in charge. We hold that no cause of action was stated against Herndon, and no request for leave to amend being shown, the judgment of dismissal as to him was proper.

Finally, we will consider whether the court erred in sustaining the motion to dismiss filed by defendant Cradock, the physical education instructor. The allegations of the petition in regard to said defendant, summarized and consolidated, were that he (1) failed to properly instruct plaintiff in wrestling, (2) failed to “designate rules and regulations for such wrestling activities,” and (3) being present, saw, or by the exercise of ordinary care, could have seen that plaintiff was about to be injured and failed and neglected to warn him or to stop the wrestling, and thus avoid the injury to plaintiff.

We have concluded that the petition failed to allege sufficient facts to state a claim for relief against Cradock. Our disposition of the case is such that we do not reach certain contentions briefed by said defendant, i. e., (1) that he was a “public officer clothed with discretionary powers and at all times engaged wholly in performing a governmental function and thus not liable for acts of mere negligence”; (2) that he is not liable to plaintiff for alleged negligent acts of omission constituting nonfeasance; and (3) that the relationship of loco parentis existed between him and plaintiff and he was accordingly not liable to plaintiff for an unintentional tort.

In considering the sufficiency of the petition we are mindful that “the averments are to be given a liberal construction and the petition accorded those reasonable inferences fairly indulged from the facts stated.” Royster v. Baker, Mo. Sup., 365 S.W.2d 496, 500. However, it should also be noted that “the averment of a legal conclusion is not a statement of an issuable fact and is to be treated as no statement at all.” Goodson v. City of Ferguson, Mo.Sup., 339 S.W.2d 841, 845, 846. We are of the opinion that since plaintiff seeks to recover for injuries resulting from his participation in a sport involving physical combat in which each party is seeking to overpower the other, the very nature of the activity is such as to require that he allege, with considerable specificality those facts which would raise a duty of care on the part of Cradock to stop the wrestling or take other action to prevent an injury to plaintiff.

Wrestling is one of the oldest and most universal of sports. It was a highly developed sport at least 3,000 years B. C. See Vol. 23 Encyclopedia Britannica, p. 804, 4th Edition. “It is common knowledge, and experience has shown, that competitive contests, athletic events and gymnasium exercises, like most other activities of life, have certain dangers' and hazards, and injuries are sustained therefrom on many occasions despite the use of necessary care, regulations and safety appliances. Wrestling is in this category. It is a form of sport or athletics in which many individuals of all ages voluntarily partake at one time or another, regardless of size, weight, supervision or equipment, and usually no liability attaches thereto.” Reynolds v. State of New York, 207 Misc. 963, 141 N.Y.S.2d 615, 617. Modern competitive wrestling is governed by various rules with certain holds barred. Under intercollegiate rules, “[strangling, butting, holds for punishment alone and grips considered dangerous to life and limb, such as the full nelson, toe hold, etc., are forbidden. It is illegal to slam an opponent to the mat unless the slammer has one knee on the mat.” 29 Encyclopedia Americana, 567. It has come to our attention that competitive High School wrestling in this state is supervised by the Missouri High School Activities Association, and that the intercollegiate rules with certain modifications relating to High Schools, are applicable. We do not, however, consider those rules as we cannot take judicial notice thereof. Dunbar v. Board of Zoning Adjustment, Mo.App., 387 S.W.2d 164.

The allegation that Cradock was negligent in failing to properly instruct plaintiff and in failing to designate rules for wrestling activities are conclusions. There is nothing contained in those allegations which tend to show wherein those alleged omissions caused plaintiff to sustain injury or in what manner the performance of those acts would have prevented injury. Those allegations do not aid plaintiff in stating a claim for relief.

The allegation that Cradock saw, or in the exercise of ordinary care could have seen, that plaintiff was about to be injured, and failed to take preventive action, is unusual and has given us some difficulty. In determining the meaning and effect of that allegation we think it is important to consider that plaintiff was not engaged in a wrestling match. He alleged that at that time he was complying with the requirement “to participate with other students in a wrestling class and to practice certain holds and falls and other wrestling experiences.” We also consider it significant that plaintiff did not allege that his opponent was larger, stronger, or more skillful than he. It will be noted that there is no allegation as to the hold that was being used by plaintiff’s opponent or that such hold was dangerous or barred by any rules that may have been applicable to High School wrestling. In the absence of an allegation to the contrary it may be assumed that Cradock was not instructing plaintiff and his opponent in the use of holds which were known to be dangerous or were barred by any applicable rules.

It would be very difficult to see that a wrestler is about to be injured since the sport is one where the participants may release a hold or a hold may be broken at any instant. The allegation under consideration is a conclusion. In order to place a duty on Cradock to take preventive action some fact should have been alleged which would have indicated that plaintiff was in danger of immediate specific injury. We also think that plaintiff should have alleged that after Cradock had knowledge that plaintiff was about to be injured there remained time in which he could have taken effective preventive action prior to the time plaintiff’s injury was sustained. If, for example, plaintiff had alleged that his opponent had a strangle hold on him; that Cradock had actual or constructive knowledge thereof and knew that such was a dangerous hold and if continued for a period of time would cause serious injury to plaintiff; that after acquiring such knowledge Cradock had time in which to warn plaintiff or to stop the wrestling prior to plaintiff’s injury and failed to do so— then we would say (with the qualification hereafter stated) that he had alleged a claim on which relief could have been granted.

We have indicated that if plaintiff had made certain specific factual allegations he would have stated a claim for relief. That, of course, was stated without a consideration of the three special defenses defendant Cradock has briefed and which we have heretofore set out. It should be made clear that if there is merit in any of those defenses plaintiff could not have stated a claim, in any event, under the general factual situation here involved.

For the reasons stated we rule that the allegation under consideration is not sufficient to state a claim for relief against Cradock. Furthermore, as we have indicated, the petition, when considered as a whole, fails to state such a claim and hence the court did not err in sustaining' Cra-dock’s motion to dismiss.

The judgment is affirmed as to all defendants.

All concur.


text:
    STATE of Missouri, Respondent, v. Melvin Dew RENFRO, Appellant.
    No. 52129.
    Supreme Court of Missouri, Division No. 2.
    Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, J. L. Anding, Sp. Asst. Atty. Gen., Pacific, for respondent.
    J. Whitfield Moody, J. Arnot Hill, Kansas City, for appellant.
   DONNELLY, Judge.

Appellant, Melvin Dew Renfro, was convicted of murder in the second degree under § 559.020 RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Jackson County, Missouri, and his punishment was assessed at imprisonment in the custody of the State Department of Corrections for a term •of thirty-five years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court. Appellant has been represented in the trial court, .and in this Court, by court-appointed counsel.

Appellant does not question the sufficiency of the evidence. On March 15, 1965, :appellant and Barbara Mae Warrene had some beers together in a tavern in Kansas City, Missouri. Appellant had a pistol in his possession at the time. Appellant excused himself for a few minutes. While he was absent, Barbara Mae Warrene left the tavern and went to her apartment at 3727 East 9th Street, Kansas City, Missouri. Appellant went to the apartment, an argument followed, and appellant shot and killed Barbara Mae Warrene. Three witnesses testified that appellant threatened the life of Barbara Mae prior to the fatal shooting. Appellant denied this and contended the killing was accidental.

Appellant asserts that the trial court -erred in permitting the assistant prosecuting attorney to “cross-examine and impeach his own witness.”

Gail Harvey was called as a witness for the State. On redirect examination she testified as follows:

“Q Did you ever hear Renfro up there in that very apartment on one of these occasions that Mr. Hill was talking about make any threats to Barbara Warrene?

“A You mean did he—

“Q Did he ever say anything on any prior occasion when Janet was there that was threatening to Barbara Warrene?

“A Yes one night he did, yes.

“Q What did he say? A Well, he said he was going to kill her because she wasn’t doing him right.

“Q That was a completely different night, an earlier night, was it not ? A Yes.”

On recross examination, she testified as follows:

“Q Are you sure he didn’t say someone ought to kill her?

“A I am not sure.

“Q As a matter of fact, you are not sure that he said he would kill her?

“A No. It was conversation. Like I said, he was depressed.”

The assistant prosecuting attorney then re-examined the witness and asked three obviously leading questions. These questions were not answered by the witness because of objections made. Then the following occurred:

“(STATE’S EXHIBIT NO. 12 WAS MARKED FOR IDENTIFICATION.)

“Q Mrs. Harvey, did you give a statement to the Kansas City, Missouri, Police Department on March 15 of this year at about 8:55 or about 9:00 o’clock in the evening? A Yes.

“Q I hand you what has been marked Exhibit 12 and ask you if that is your signature ?

“A Yes, I did, I know what you mean now.

“Q Would you read over that statement and tell me if that is a copy of the statement you gave the police. Is that the statement you gave the police? A Yes, sir.

“Q Now, if you will use that statement, if you wish, to refresh your recollection, I would like to ask you if at any prior time, any time before March 15 when Mrs. War-rene was killed, in the presence of Janet, her thirteen-year-old daughter, you ever heard this man threaten Barbara Warrene ? A Yes.

“Q What is your answer, ma’am? A Yes.

“Q While he was threatening her, did he have anything with him that he was using along with the threat? A A pocket knife.

“Q Pardon? A A pocket knife.

“Q A pocket knife? A Yes.

“Q What did he do with the pocket knife ?

“A He took it out of his pocket, but the fellow with him grabbed the knife.

“Q What did he say when he had the knife out of his pocket?

“A ‘How would you like to die?’

“Q Who was he talking to? A Mrs. Warrene.

“Q Mrs. Barbara Warrene? A Yes.”

Upon a full review of Gail Harvey’s testimony, we do not believe she was a “hostile” witness, nor may we “infer from the testimony and conduct of the witness an effort to suppress the truth.’' Cf. State v. Davis, Mo.Sup., 400 S.W.2d 141, 147. Counsel for appellant in his argument to the jury, characterized her as a “pliable witness,” a “person who liked to please the person who is asking her questions.” We agree. Appellant cites State v. Bowen, 263 Mo. 279, 172 S.W. 367 and State v. Kinne, Mo.Sup., 372 S.W.2d 62, for the proposition that a party may not impeach his own witness unless the witness has become hostile or adverse. However, appellant fails to note the case of State v. Patton, 255 Mo. 245, 164 S.W. 223, cited in the Bowen case and in the Kinne case as not applicable on the facts in those cases. The Patton case held that where an effort is made to refresh the memory of a forgetful or unwilling witness, it is not improper to exhibit a former written statement of the witness to her for examination. We are of the opinion that this rule of law is applicable here. The former statement, Exhibit No. 12, was not offered in evidence. It did refresh the recollection of Gail Harvey and she proceeded to testify as set out above. It was not read to the jury. On this record we cannot convict the trial court of an abuse of discretion. Appellant’s assignment of error is without merit.

Appellant asserts that the trial court erred in failing to discharge the jury and declare a mistrial during the closing argument on the part of the State when the assistant prosecuting attorney “told the jury in substance that if they acquitted the defendant he would probably go out and kill someone else.”

In the closing argument by Mr. Hardy, the assistant prosecuting attorney, the following occurred: “You might consider this, however. He might well do it again, if you believe he did it this time. He might well again, since he apparently enjoys going with younger women, which I think is fine, start going with another one who runs around on him—

“MR. HILL: If it please the Court, I object to this as being improper argument.

“THE COURT: Confine your argument to the evidence and the inference, Mr. Hardy.”

The record shows that the trial court instructed the assistant prosecuting attorney to confine his argument to the evidence and the inferences to be drawn therefrom. No further action was requested by able defense counsel. Appellant cannot be heard to assert error in the failure of the trial court to act further. State v. Havens, Mo.Sup., 177 S.W.2d 625; State v. Armstead, Mo.Sup., 283 S.W.2d 577. In any event, we do not believe the argument complained of was prejudicially erroneous. Appellant cites State v. Mobley, Mo.Sup., 369 S.W.2d 576; State v. Tiedt, 357 Mo. 115, 206 S.W.2d 524; and State v. Groves, Mo.Sup., 295 S.W.2d 169 to sustain his contention. In the Mobley case, the argument was held prejudicially erroneous, the opinion noting, however, “almost complete lack of action by the trial court.” In the Groves case, the trial court refused any relief to defendant on his objection. In State v. Tiedt, the Court stated (357 Mo. 115, 122, 206 S.W.2d 524, 528):

“Consequently, we are not concerned with an instance of a single breach arising more or less spontaneously under the stress and excitement of contest. If such were the case, the court’s first ruling would doubtless have served to divert the speaker, and to counteract the prejudice. But repeated and persistent indulgences of the character here involved, in flagrant disregard of the court’s rulings, dispel any idea of inadvertence, and present the question of the cumulative effect of such improprieties, coupled with an erroneous ruling of approval. * *

Each case must be judged on its particular facts. We have here “an instance of a single breach” where the trial court’s ruling “served to divert the speaker,” and to counteract any prejudice which may have resulted from the argument. Appellant’s assignment of error is without merit.

An examination of the record as required by Supreme Court Rule 28.02, V.A.M.R., discloses no error. The judgment is affirmed.

All of the Judges concur.


author: • DONNELLY, Judge. FINCH, Judge. PER CURIAM.

text:
    The SPECIAL DISTRICT FOR the EDUCATION AND TRAINING OF HANDICAPPED CHILDREN OF ST. LOUIS COUNTY, Missouri, Plaintiff-Appellant, State of Missouri, Intervenor Plaintiff-Appellant, v. Hubert WHEELER, Commissioner of Education, State of Missouri, et al., Defendants-Respondents.
    No. 51909.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1966.
    Rehearings Denied Nov. 14, 1966.

      Ziercher, Tzinberg, Human & Michen-felder, Erwin Tzinberg, Richard Roth, Clayton, Carson, Inglish, Monaco & Coil, John W. Inglish, Jefferson City, for appellant Special Dist. for Education etc.
    Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for appellant State of Missouri.
    Thompson Mitchell Douglas & Neill, James M. Douglas, William G. Guerri, Richard W. Metz, St. Louis, for respondents.
    Franklin C. Salisbury, Washington, D. G, Harry C. Avery, St. Louis, amici curise Protestants and Other Americans United for Separation of Church and State.
    Edward T. Matheny, Jr., Larry L. Mc-Mullen, Caldwell, Blackwell, Sanders & Matheny, Kansas City, for School Dist. of Kansas City, Mo., amici curise.
    Robert P. Baine, Jr., Clayton, Amicus Parents and Children.
    Huger, Cramer & Pollman, Bernard J. Huger, Walter H. Pollman, St. Louis, Downey, Sullivan & McCormick, Thomas M. Sullivan, Kansas City, George A. Roz-ier, Jefferson City, Ben J. Francka, Springfield, for these amici curise Vincent Knese and Mary Ann Knese, His Wife.
    Joseph B. Robison, New York City, Gerald Tockman, Jerome W. Sidel, St. Louis, amici curise American Jewish Congress, Missouri State Region, and Jewish Labor Committee, St. Louis Chapter.
   • DONNELLY, Judge.

Plaintiff is the Special District for the Education and Training of Handicapped Children of St. Louis County, Missouri, a public school district. Defendants are Hubert Wheeler, State Commissioner of Education, and the members of the State Board of Education. Intervenor Plaintiff is the State of Missouri by its Attorney General.

During the 1963-64 school year, the Special District provided speech therapy to parochial school children by sending its speech teachers (clinicians) into the parochial schools. On February 27, 1964 the Special District brought this suit for a declaratory judgment asserting the validity of its 1963-64 practice after the State Board of Education refused to reimburse the Special District for its expenses in providing such therapy.

During the 1964-65 school year the Special District changed its program and provided speech therapy for parochial school children in buildings maintained by the Special District. Parochial school children who desired to receive such therapy were released from the parochial schools for part of their regular six-hour school day.

During the 1965-66 school year, the Special District continued to offer speech therapy for parochial school children in buildings which it maintained. However, the time spent by the parochial school children for such therapy was in addition to their regular school day. The validity of this particular practice is not before this Court for review and we express no opinion as to it.

On October 12, 1965, the Circuit Court of Cole County, Missouri, entered judgment holding invalid the practices followed in the 1963-64 school year and the 1964-65 school year. An appeal was perfected to this Court.

Section 5 of Article IX of the Missouri Constitution, V.A.M.S., reads as follows: “The proceeds of all certificates of indebtedness due the state school fund, and all moneys, bonds, lands, and other property belonging to or donated to any state fund for public school purposes, and the net proceeds of all sales of lands and other property and effects that may accrue to the state by escheat, shall be paid into the state treasury, and securely invested under the supervision of the state board of education, and sacredly preserved as a public school fund the annual income of which shall be faithfully appropriated for establishing and maintaining free public schools, and for no other uses or purposes whatsoever.”

Section 161.180 RSMo 1959, V.A.M.S., read as follows: “There is hereby created a state public school fund which shall consist of all certificates of indebtedness issued under the provisions of this law, and all moneys, bonds, lands and other properties belonging to or donated to any state fund for public school purposes and the net proceeds of all sales of lands and other property and effects that may accrue to the state by escheat. All such funds shall be paid into the state treasury and securely invested by the state board of education, and sacredly preserved as a public school fund, the annual income of which shall be faithfully appropriated for establishing and maintaining free public schools and for no other uses or purposes whatsoever.”

Section 3(a) of Article IX of the Missouri Constitution reads as follows: “All appropriations by the state for the support of free public schools and the income from the public school fund shall be paid at least annually and distributed according to law.”

Section 3(b) of Article IX of the Missouri Constitution reads as follows: “In event the public school fund provided and set apart by law for the support of free public schools, shall be insufficient to sustain free schools at least eight months in every year in each school district of the state, the general assembly may provide for such deficiency; but in no case shall there be set apart less than twenty-five per cent of the state revenue, exclusive of interest and sinking fund, to be applied annually to the support of the free public schools.”

The Seventy-Second General Assembly passed an act appropriating from the State School Moneys Fund to the State Board of Education, for the period beginning July 1, 1963, and ending June 30, 1965, “[A]ll sums credited to the State School Moneys Fund from whatever source and not elsewhere appropriated, or as much as may be necessary for the support of the free public schools under the Foundation Plan.” Laws of Missouri, 1963, p. 8.

In McVey v. Hawkins, 364 Mo. 44, 258 S.W.2d 927, this Court en Banc held that the use of public school funds to transport pupils to and from a parochial school was not for the purpose of maintaining free public schools and that such use was unlawful. Is the use of public school moneys to send speech teachers of the Special District into the parochial schools for speech therapy a use for the purpose of maintaining free public schools ? We think not. The use of public school funds for the education of pupils in parochial schools is not for the purpose of maintaining free public schools. We hold the 1963-64 practice unlawful and invalid.

The trial court found the 1964 — 65 practice of providing speech therapy during regular school hours for parochial school children in buildings maintained by the Special District contravened the Missouri compulsory attendance law (§ 164.010, RS Mo 1959, V.A.M.S.; see § 167.031, Laws 1963, p. 274, § 8-3, effective July 1, 1965). The decisive portion of both statutes reads as follows: “Every parent, guardian or other person in this state having charge, control or custody of a child between the ages of seven and sixteen years shall cause the child to attend regularly some day school, public, private, parochial or parish, * * * »

The school day is a six-hour day. Section 163.020, RSMo 1959, V.A.M.S.; §; 160.041, Laws 1963, p. 209, § 1-4, effective July 1, 1965.

The parties stipulated that “ * * parochial school children are released from their regular schools for part of their regular six-hour school day so that they may attend speech correction classes in buildings maintained by the Plaintiff District.” By statute it is mandatory that each child “attend regularly some day school.” We are asked to change the statutory requirement to read “some day schools” or to read “some day school or schools.” We cannot do this. We find no ambiguity which would permit us to. judicially ascertain the legislative intent. We must apply the statute as written. Foremost Dairies, Inc. v. Thomason, Mo., 384 S.W.2d 651, 659. Our view is well stated in State v. Pilkinton, Mo.App., 310 S.W.2d 304, at 309, 310, as follows: “In the construction and application of statutes bearing upon school and educational matters * * * as in the construction and application of other statutes * * *, our appellate courts have observed time and again that the wisdom of legislative policy, as reflected and expressed in statutory enactments, is for the General Assembly and is beyond and without the pale of judicial inquiry and review. Bluntly put, our function is to declare, apply and enforce the law as we find it, not to legislate by judicial fiat. * * * The General Assembly is presumed to have intended what it has stated directly and unambiguously, and we may not, under the guise of construction, add to or take from the clear and definite terms of Section 164.010.”

The Special District directs our attention to subparagraph (1) of the compulsory attendance law which read as follows : “(1) A child who, to the satisfaction of the superintendent of schools of the district in which he resides or another person authorized to act for him, is determined to be mentally or physically incapacitated may be excused from attendance at school for the full time required, or any part thereof; * * * ”, and contend that the parochial school children involved here come under this exception. The record does not support this assertion. There is no showing that the “determination” required was made. Had such a “determination” been made, the constitutional validity of the practice could be subjected to judicial scrutiny. See Sections 6 and 7 of Article I and Section 8 of Article IX of the Missouri Constitution. However, this question is not before this Court for review and we express no opinion as to it.

The Special District and the Attorney General contend that the compulsory attendance law does not apply here- in that it is properly directed against the parents or legal custodians of the children and not against the defendants. This contention is without merit. The State Commissioner of Education, with others, is charged with the duty of enforcing the compulsory attendance law. See § 164.090 RSMo 1959, effective prior to July 1, 1965 and § 167.111, Laws 1963, p. 277 § 8-11, effective July 1, 1965. Also, Section 3(a) of Article IX of the Missouri Constitution requires that “appropriations by the state for the support of free public schools * * * shall be * * distributed according to law.”

The Attorney General contends the condemnation of the practice here in question by the trial court is unconstitutional because it deprives non-public school pupils of liberty without due process of law and of equal protection of the laws. There is no merit in this contention. The fact that parochial school students, not public school students, are involved here, is incidental. There is nothing in the record to indicate the trial court invoked the compulsory attendance law because the students were parochial school students and not public school students. We recognize inherent difficulties in reconciling the desire on the one hand that children not be discriminated'against because of their religious beliefs and the desire on the other hand that there be no acts permitted which would involve constitutional invalidity. We also recognize that children cannot be compelled to attend public schools when their parents desire to send them to parochial schools. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468. However, these questions must be treated and resolved another day. If the General Assembly should decide to change the compulsory attendance law to permit attendance by students generally at more than one school during the school day, and constitutional questions arise incident to practices initiated pursuant thereto, we will consider them when properly presented to us.

The Special District contends the trial court erred in ignoring an opinion rendered by the Attorney General and in not directing payment of at least partial state aid. These particular contentions were not asserted in the motions for new trial and cannot be considered on appeal. Berghorn v. Reorganized School Dist. No. 8, Franklin County, 364 Mo. 121, 260 S.W.2d 573.

The judgment is affirmed.

STORCKMAN, C. J., and HOLMAN, HENLEY and EAGER, JJ., concur.

FINCH, J., concurs in part and dissents in part in separate opinion filed.

HYDE, J., concurs in part and dissents in part and concurs in separate opinion of FINCH, J.

CONCURRING AND DISSENTING OPINION

FINCH, Judge.

I respectfully dissent from that portion of the majority opinion which holds that the practice followed during the 1964-1965 school year violated the Compulsory Attendance Law, § 164.010 (all references are to RSMo 1959 and V.A.M.S., unless otherwise indicated). I concur in the majority opinion with reference to the 1963-1964 school year.

During the 1964 — 1965 school year some speech defective children, regularly enrolled in parochial schools, were released twice a week to permit them to attend special speech therapy classes in schools maintained and operated by the Special District for the Education and Training of Handicapped Children of St. Louis County, Missouri. The Special District did not provide transportation for these children.

The single question with reference to the 1964-1965 school year which was raised by the pleadings, tried by Judge Blair and briefed and argued by the parties in this court is whether the 1964 — 1965 practice violated the Missouri Compulsory Attendance Law.

Section 164.010 was as follows:

“Every parent, guardian or other person in this state having charge, control or custody of a child between the ages of seven and sixteen years shall cause the child to attend regularly some day school, public, private, parochial or parish, not less than the entire time the school which the child attends is in session or shall provide the child at home with regular daily instructions during the usual school hours which shall, in the judgment of a court of competent jurisdiction, be at least substantially equivalent to the instruction given children of like age in the day schools in the locality in which the child resides; except that
“(1) A chilcl who, to the satisfaction of the superintendent of schools of the district in which he resides or another person authorized to act for him, is determined to be mentally or physically incapacitated may be excused from attendance at school for the full time required, or any part thereof; or
“(2) A child between fourteen and sixteen years of age may be excused from attendance at school for the full time required, or any part thereof, by the superintendent of schools or other person authorized to act for him or by a court of competent jurisdiction when legal employment has been obtained by the child and found to be desirable, and after the parents or guardian of the child have been advised of the pending action.”

We must determine what is meant by the words “attend regularly some day school, public, private, parochial or parish * * considering, of course, the entire text of the statute. The majority opinion holds that the language is unambiguous and means that a child must attend a single school the entire time the school is open during its regular school term.

I do not agree that the language is unambiguous. The word “some” does not necessarily and always mean “single”. One definition in Webster’s Third International Dictionary is “being one, a part, or an unspecified number of something.” Walton v. United States Steel Corp., Mo., 362 S.W.2d 617, 625.

The interpretation of the language of the statute by the majority opinion poses numerous questions. Here are a few: If a family moves from one community to another during the school year and transfers their child to a different school, have they violated the Compulsory Attendance Law? If, in a city such as St. Louis where a single school district operates many schools, a child is transferred from one school to another during the school year (perhaps to relieve overcrowding or to utilize special facilities in another school, or for some other purpose), has § 164.010 (now § 167.-031) been violated? If, as in Kansas City, the school district arranges for certain bright students who are subject to the Compulsory Attendance Act to be released at certain hours during the regular school day to take courses in the Junior College (a separate district) and thus be dually enrolled, has the statute been violated? If § 164.010 means what the majority opinion says it means, the answer to all these questions must be in the affirmative. I do not believe that the statute so provides. I do not read it to say that dual enrollment is prohibited or that a transfer from one school to another during a school year is forbidden. I cannot accept an interpretation of the language which makes parents guilty of a misdemeanor if they keep their child in full-time attandance but dually enroll him or transfer him from one school to another during the school year.

I am of the opinion that the language in question is ambiguous and that other interpretations are possible. For example, it is arguable that when the Act refers to some school, it means some school district. This would permit transfers between schools within the single school district or dual enrollment in the schools of such district without violating the statute. Such a result, however, necessarily recognizes that the Act is ambiguous and that we must construe it to mean some school district, because the statute obviously does not clearly and specifically say that. This construction, however, still would not solve the problem of a transfer during a school year between school districts or of dual enrollment such as enrollment in the Kansas City public schools and in the Kansas City Junior College.

A third construction of the language of the statute would be that the words “some school” in reality mean some school or schools. This would permit transfers between as well as within school districts and would permit dual enrollment such as that in Kansas City.

Where the language of a statute is ambiguous, it is proper to ascertain the legislative intent in construing the statute. Household Finance Corporation v. Robertson et al., Mo., 364 S.W.2d 595 [5,6]. In so doing, we must consider the evil which the statute sought to remedy. This court stated in Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 547, 183 S.W.2d 77, 82: “ * * * a statute must be constructed in the light of the evil which it seeks to remedy and in light of conditions obtaining at the time of its enactment.”

The historical causes which resulted in compulsory attendance laws in this country are discussed by Thomas E. Finegan, former Superintendent of Public Instruction for the State of Pennsylvania, in Encyclopedia Americana, 1957 Edition, Vol. 9, pp. 599, et seq., “Education, Compulsory.” The article points out that the rise of child labor and increasing immigration created conditions which interfered with the education of children and created various social and economic problems. Acts such as the Missouri Compulsory Attendance Law of 1905 were adopted to require school attendance and thereby attack these problems. The title of that first Act was as follows: “AN ACT to enforce the constitutional right of every child in the state to an education, to provide for truant or parental schools and attendance officers in cities of ten thousand population or more and to prohibit the employment of children during school hours.” Laws 1905, p. 146. It shows a purpose to keep children in school and not permit them to be engaged in child labor during school hours. Nothing in the title is suggestive of an intention to require attendance at a single school for the entire school year.

It will be noted that § 164.010 contains two exceptions. Both relate to when a child may attend less than full time. The first exception is in the case of mentally and physically handicapped children who may be excused part time or full time under certain circumstances, and the second relates to children between fourteen and sixteen who are employed under certain specified conditions. There are no exceptions in the statute relative to where a child shall attend. Rather, they are concerned only with instances when a child shall be excused from full time attendance. This is understandable in view of the purpose of the Act to require full-time attendance of children of the designated age group.

The history of this legislation and the language of the Act demonstrate that the purpose of this legislation was to require that children of specified ages receive a specified minimum of school instruction. They could go to public or private or parochial schools, but they must go full time. The purpose of the Act was not to' require that such instruction be at a single school for the entire term.

The construction of the Missouri statute which I would adopt finds support in language in the recent decision of the Appellate Court of Illinois, First District,. Second Division, in the case of Morton et al. v. Board of Education of the City of Chicago et al., 69 Ill.App.2d 38, 216 N.E.2d 305. In that case plaintiff sought to enjoin the school board from maintaining a dual enrollment program. Students took English,. Social Studies, Music and Art at the St.. Paul High School, a nonpublic school, and the remainder of their courses at the John F. Kennedy High School, a public school. The attack was on the ground that this, violated the Compulsory Attendance Law of Illinois, § 26-1, Illinois Revised Statutes. 1963, Chapter 122. In the opinion the court says, 1. c. 308: “The dual enrollment program does not violate Section 26-1 of the School Code. Any child within the ages: of 7 and 16 years is required ‘to attend some-public school in the district wherein the child resides the entire time it is in session during the regular school term’ unless the child falls within one of the four exceptions. In the event that the child does come within one of the exceptions it is not necessary that he ‘attend some public school in the-district wherein [he] resides the entire time-it is in session.’ [Emphasis supplied.]; Since the object of the compulsory attendance law is that all children be educated and not that they be educated in any particular manner or place, part-time enrollment in a school and part-time enrollment in a nonpublic school is permitted by Section 26 — 1 so long as the child receives a complete education. See People v. Levisen, 404 Ill. 574, 90 N.E.2d 213, 14 A.L.R.2d 1364.” The Illinois statute differs somewhat from the Missouri Act but the discussion of the purpose of the Act and its effect on dual enrollment is pertinent.

Finally, it should be remembered that § 167.061 is a penal statute. It provides that any parent, guardian or other person having charge, control or custody of a child subject to the Act is guilty of a misdemeanor if he does not cause the child to attend school in accordance with the statute. Violation is punishable by fine or imprisonment in jail. Consequently, the statute is to be construed strictly against the State. This is an additional reason for construing the statute so that a parent is not guilty of a misdemeanor if he dually enrolls his child or transfers the child from one school to another. If the parent would not violate the statute by such actions, the 1964 — 1965 practice was not unlawful.

The trial court held that the 1964 — 1965 practice violated § 164.010 and that it also would be violative of § 167.031. I would reverse that portion of the decision.

On Motion for Rehearing

PER CURIAM.

The State of Missouri by its Attorney General has filed a motion for rehearing wherein it is contended that our interpretation of the compulsory attendance law permits dual attendance by public school pupils, but denies the same to non-public school pupils. In this case only parochial school pupils are involved. The opinion does not hold that the compulsory attendance law is not applicable equally to public school pupils. That issue is not involved in this case.

      . Section 164.010 was amended by Laws 1963, page 274, § 8-3, effective July 1, 1965, and appears now as § 167.031.

      . In 81 C.J.S. p. 391, under the word “Some,” it is stated that, “The term ‘some’ is uncertain in its signification,” and in footnote 17 on that page appears the following quotation: “‘Some’ is a term too uncertain in its signification to sustain a verdict for any definite amount. It may mean a single ounce, or ten thousand tons, a single quart, or twenty thousand bushels.”

      . The section which provided for punishment for violation of § 164.010 was § 164.-060, which also was repealed by the 1963 Act.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Charles Ganing RHODES, Appellant.
    No. 51922.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Joseph S. Boland, Sp. Asst. Atty. Gen., Clayton; for respondent.
    William J. Shaw, William H. Crandall, Jr., Clayton, for appellant.
   HOUSER, Commissioner.

Charles Ganing Rhodes was charged with and convicted of one prior felony conviction and burglary second degree and stealing. He was sentenced to three years’ imprisonment on each charge, the sentences to run concurrently. He has appealed, claiming that the Habitual Criminal Act is unconstitutional; that the Court erroneously defined the word “doubt” in an instruction, and that the State failed to make a sub-missible case of burglary second degree.

The constitutionality of the Habitual Criminal Act is challenged on the ground that it deprives the defendant of his* right to have a jury decide the factual issues in a criminal cause. “This and other similar attacks upon the constitutionality of § 556.-280 have been ruled adversely to the defendant in the following cases: State v. Morton, Mo.Sup., 338 S.W.2d 858; State v. Griffin, Mo.Sup., 339 S.W.2d 803; State v. Wolfe, Mo.Sup., 343 S.W.2d 10; State v. Williams, Mo.Sup., 343 S.W.2d 58, and State v. Brownridge, Mo.[Sup.], 353 S.W.2d 715. Since the point has been previously decided by this court we need not extend this opinion by further discussion thereof.” State v. Deutschmann, Mo.Sup., 392 S.W.2d 279, 286.

Instruction No. 10, on the presumption of innocence and reasonable doubt, concluded with a paragraph in which the jury was instructed that * * a doubt to authorize an acquittal on that ground ought to be a substantial doubt,’ touching the defendant’s guilt, and not a mere possibility of his innocence.” Defendant claims that this lessens the burden of proof on the state; presupposes a legal impossibility, and is a comment on the evidence. These same complaints were ruled adversely to the defendant in State v. Drake, Mo.Sup., 298 S.W.2d 374. Upon reexamination of the point we find no reason to change our opinion and reiterate what was said there.

The contention that the state failed to make a submissible case of burglary second degree is based solely on the contention that there was a failure to prove forcible entry, either directly or circumstantially. Defendant points out that there were no pry marks or other physical damage to any entry way; that the state did not show that all doors and windows were checked before the last person left the house prior to the entry; and that there was no other evidence of the exercise of force to effect an entry into the house. Defendant cites State v. Ewing, Mo.Sup., 298 S.W.2d 439, for the rule that to sustain a charge of second degree burglary it is necessary to show directly or circumstantially that some force was used to effect entry. The distinguishing difference between the facts in State v. Ewing and this case is that in Ewing there was no evidence that the door and window were closed prior to the time defendant entered the building, whereas here there was evidence that the door was locked when the workman left and defendant himself admitted that the door was closed when he and the other two men arrived on the premises.

Unlocking and opening a locked door, or pushing open a door which is shut but neither locked nor latched, 12 C.J.S. Burglary § 3; or the opening of a closed door, State v. Stewart, 329 Mo. 265, 44 S.W.2d 100, or the opening of an unlocked door, State v. Fritz, Mo.Sup., 379 S.W.2d 589, and cases cited, 1. c. 590, is sufficient to render an entry thus effected burglary, if done with intent to commit burglary.

At 10:10 p. m. on the night of the taking the stolen property was last seen on the premises by a workman, Willie Space, who left the residence in question at that time. He left by the den door at the back of the house. As he left he locked the den door. The property was found in the possession of defendant, one Robinson and another man at 4:20 the following morning. At '8:15 a. m. a police officer checked the doors and windows of the house and found the den door insecure; it was closed but unlocked. In an oral statement to the police defendant said that he, one Robinson and another man entered the house; that the door through which they entered was closed; that it was not forced; that he did not know if Robinson had a key or not or exactly how Robinson got into the house; that the defendant was “about the last one to get in.”

The evidence is sufficient to show that defendant, with intent to steal this particular property, gained entrance to the building by the act of his confederate Robinson opening a closed door. Robinson’s act in opening the closed door was the act of the defendant, both having been engaged in a common undertaking. Whether the door was locked when they arrived and was unlocked by Robinson, or was unlocked upon arrival and was merely opened, is immaterial. That there were no pry marks, physical damage or other evidence of exercise of force, is immaterial. The material facts are that the door through which entry was effected was closed when they arrived, was opened by Robinson and used by defendant.

Examination of the record as required by Criminal Rule 28.02, V.A.M.R. discloses no error.

The judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HYDE, Judge.

text:
    C. F. DENNEY, Plaintiff-Appellant, v. TRADERS NATIONAL BANK OF KANSAS CITY, Missouri, and Burgner Jones, as Co-trustees, and Burgner Jones and Vincent Lee Humphreys, Individually, Defendants-Respondents.
    No. 51679.
    Supreme Court of Missouri, Division No. 1.
    Nov. 14, 1966.
    James C. Morris, Inghram D. Hook, Kansas City, for plaintiff-appellant.
    R. Carter Tucker, Tucker, Murphy, Wilson, Lane & Kelly, Hoskins, King, Springer & McGannon, Roger T. Hurwitz, Walter J. Kennedy, Kansas City, for defendants-respondents.
    Ben W. Swofford, Phillip L. Waisblum, Kansas City, for defendant-respondent Vincent Lee Humphreys.
   HYDE, Judge.

Plaintiff brought suit for $150,000.00 actual damages and $150,000.00 punitive damages, alleging unlawful interference with and breach of a mining lease of 88 acres to plaintiff by defendants Traders National Bank (hereinafter called Bank) and Burgner Jones (hereinafter called Jones) as Co-trustees, and Jones individually. The suit was against the Bank and Jones and Vincent Lee Humphreys (hereinafter called Humphreys) individually; Humphreys being a subsequent lessee. The court sustained defendants’ motion for summary- judgment and entered judgment against plaintiff and for all defendants, from which plaintiff has appealed.

Plaintiff’s claim is that after the Bank and Jones had made a lease to him and knowing this lease was “a present valid and subsisting lease,” they made a lease to Humphreys “with the knowing purpose of interfering with or annuling the existing mining lease of plaintiff.” The case was decided on the pleadings, depositions, interrogatories and answers thereto, admissions of record and affidavits, from which the court found that plaintiff, under the terms ofhis lease, “defaulted and after due notice, as per terms of the lease, said lease was terminated”; and “that there is no genuine issue in this case as to any material fact.”

Jones owned a one-half interest in the property and the other half was subject to a trust of which he and the Bank were trustees. The material provision of plaintiff’s lease was as follows: “1. The said party of the second part shall commence prospecting or mining operations on said land herein described within Six (6) Months from date hereof; provided, that if prospecting or mining operations have not been commenced by the 1st day of August 1960, the party of the second part shall pay parties of the first part the sum of One Dollar per acre per year, said payments to be made semi-annually, as rent or royalty, said payments to begin at the last above mentioned date, and continue until such time as prospecting or mining operations shall have been commenced; but in any event prospecting or mining operations must be commenced on said land within Three (3) Years from date hereof. * * * 9. In case of failure of second party to keep and perform the terms of this lease, the parties of the first part may give thirty days’ written notice of the violation complained of, and if such violation or default is not removed within said period said lease shall thereupon terminate, at the option of the first parties, which remedy shall be exclusive.” (Emphasis ours.) The facts are that plaintiff never commenced any operations and on August 1, 1960 made the semi-annual rent payment required to be paid on that date. However, plaintiff did not make any payment on February 1, 1961 and the attorney for the Bank and Jones wrote the following letter to plaintiff on February 13, 1961:

“Mr. C. F. Denney
320 Moffett Street
Joplin, Missouri
“Dear Sir:
On behalf of Burgner Jones and Traders National Bank of Kansas City, Trustees under the will of Ruth Jones, deceased, and Burgner Jones, individually, you are hereby notified that you have failed to keep and perform the terms of that certain mining lease which you have entered into with the aforementioned parties, dated January 25, 1960. Said violation consists of the failure to make semiannual payment of rent due February 1, 1961, in accordance with paragraph 1 of said lease.
Yours very truly,
/s/ Roger T. Hurwitz.”

No payment being made by plaintiff, the attorney for these defendants wrote him again on March 17, 1961, as follows:

“Mr. C. F. Denney
320 Moffett Street
Joplin, Missouri
Re: Mining Lease dated January 25, 1960 — Burgner Jones and the Traders National Bank of Kansas City, Trustees under Will of Ruth Jones, deceased, and Burgner Jones Individually, lessors, and C. F. Denney, Lessee
Dear Sir:
You are herewith notified that, having failed to remove the default complained of in our notice to you of February 13, 1961, to-wit, failure to make semiannual payment of rent due February 1, 1961, the above mentioned lease is hereby terminated pursuant to the provisions of paragraph 9 thereof.
Demand is hereby made upon you for payment of rent due in the sum of $44.00 which said rent was due February 1, 1961.
Very truly yours,
/s/ Roger T. Hurwitz.”
Thereafter, Jones received in an envelope, postmarked March 29, 1961, a check of plaintiffs wife dated March 14, 1961, which his attorney returned to plaintiff in the following letter dated April 6, 1961:
“Dear Mr. Denney:
We are returning herewith Check No. 196 dated March 14, 1961, payable to the order of Burgner Jones in the sum of $44.00 bearing the legend ‘Lease Rental to July 25, 1961.’ This check is drawn by Francis L. Denney on the First National Bank of Joplin. As we previously notified you in our letter March 17, 1961, the lessors had elected to terminate your lease on the Knight’s station property for the reason that you were in default of rent payment and had not removed such default within 30 days from notice thereof. The enclosed check was forwarded to Mr. Jones under postmark dated March 29, 1961, and thus was received too late to remedy the default.
Very truly yours,
Roger T. Hurwitz.”

No reply was received to this letter and on April 15, 1961, the Bank and Jones executed a mining lease to defendant Hum-phreys. As it turned out, Humphreys commenced no mining operations either and later was convicted of violation of a Federal statute concerning securities. On July 21, 1962 plaintiff brought suit against Hum-phreys for unlawful interference with his contract and on September 7, 1962 filed an amended petition including the Bank and Jones as defendants. Plaintiff had made a lease of the property to one Lester in April 1960 but he commenced no operations on it, as required to do within 45 days. Lester had unsuccessfully attempted to sublease to Humphreys.

Plaintiff’s principal contentions are (1) that the letter of March 17 was insufficient as a notice of forfeiture because it was ambiguous and equivocal and in fact meant “if you pay up your rent your lease is not forfeited”; and (2) that in any event forfeiture was premature because, under the terms of the lease, plaintiff had until August 1, 1961 instead of February 1, 1961 to make the rental payment.

Considering (2) first, we rule against plaintiff’s claim that he had until August 1, 1961 to pay. The lease specified an annual rental of one dollar per acre per year with payments commencing August 1, 1960 and required to be made semi-annually. Whether this was rent for the period from August 1, 1960 to February 1, 1961 or from February 1, 1961 to August 1, 1961, a payment was due February 1, 1961. In the case cited by plaintiff, Washburn v. Gillespie (CCA 8th), 261 F. 41, involving an oil lease, no date for payment of rent was specified but provided only that the lessee “agrees to complete a well on said premises within one year from the date hereof, or pay at the rate of forty dollars, for each additional three months, such completion is delayed from the time above mentioned for the full completion of such well until a well is completed.” The court said concerning the lessor’s contention that the lease was forfeited because one quarterly payment was made nine days after the quarter began: “This is based on the theory that the lease required the quarterly payments to be in advance, which would make this payment due December 23, 1916. There is no such requirement in the lease.” Nor was there any such forfeiture provision in the lease in that case such as Paragraph 9 of the lease herein.

In 2 Summers Oil and Gas 409, Sec. 340, it is said: “When the drill or pay lease expressly provides for the payment of delay rental in advance or at the beginning of the rental period, there can be no question as to when the rent is due and payable.” Likewise we consider there can be no question under the express provisions of this lease (construing Paragraphs 1 and 9 together) that the required semi-annual rent was due on February 1 and August 1 of each year.

Whether such payments were for rent in advance for such periods (with the first six months free) or were for the six months just past (the first six months to be paid for if no operations were begun) is another question. Regardless of whether these payments were for back rent or rent in advance, the time they were to be made was definite. The question of whether the first six months was free is relevant only on the issue of the meaning and effect of the second paragraph of the forfeiture letter of March 17, 1961. The fact that the rent was stated as One Dollar per acre per year, to be paid semi-annually on a three-year lease, at least is a reasonable basis for a construction that rent was due for the entire first year.

Plaintiff’s claim is that the second paragraph of the letter of March 17, 1961 stated an alternative to forfeiture. Defendants’ claim is that the August 1, 1960 rent was for the first six months of the lease when plaintiff commenced no operations so that on February 1, 1961 plaintiff owed rent for the period of August 1, 1960 to February 1, 1961, which defendants were entitled to collect even after forfeiture. Defendants cite 51 C.J.S. Landlord and Tenant § 117(3), p. 707, stating “a demand for, or an action to recover, rent accruing before the ground of forfeiture existed does not constitute a waiver of the forfeiture.” They also cite as so holding Mansur v. Chamberlin, 162 Mo.App. 155, 144 S.W. 510; Board of Trade Office Building Co. v. Shannon Grain Co., 223 Mo.App. 1199, 21 S.W.2d 913, 914, 915, and cases cited. It is said 58 C.J.S. Mines and Minerals § 190a, p. 408: “ [Forfeiture does not destroy the lessor’s right to accrued rents”; see also 32 Am.Jur. 752, Landlord and Tenant, Sec. 886; Annotation, 109 A.L.R. 1268. That it was not defendants’ intention to demand any rent due after the date of the forfeiture is clear from the positive declaration of the forfeiture in this letter of March 17, 1961, which we do not consider could be construed as presenting payment of rent as an alternative to the declared forfeiture but instead as a demand for rent claimed to have accrued. Furthermore, when plaintiff sent a check with the notation “Lease Rental to July 25, 1961” defendants refused to accept it and promptly returned it. We, therefore, hold there was no waiver of the forfeiture.

Plaintiff cites Independence Flying Service v. Abitz, Mo.Sup., 386 S.W.2d 399, which was ruled on the requirements of the common law to declare a forfeiture for nonpayment of rent. However, the lease in that case did not contain any such provision as Paragraph 9 of the lease herein involved which provided the method for declaring a forfeiture, stating “which remedy shall be exclusive.” It is stated (58 C. J.S. Mines and Minerals § 190a, p. 408): “Under an express stipulation in many mining leases, the nonpayment of rents or royalties in accordance with the terms of the lease is ground for a forfeiture of the lease and reentry by the lessor.” Defendants did comply with the provisions of Paragraph 9 of their lease by giving “thirty days’ written notice of the violation complained of” by their letter of February 13, 1961, before declaring forfeiture in their letter, of March 17, 1961. As to proper steps for forfeiture of a mining lease, see Lester v. National Shawmut Bank of Boston, USCA 4th, 238 F.2d 516, 518. A reason for enforcement of forfeiture in a mining lease is thus stated in an annotation on the duty of development of mineral rights, 60 A.L.R. 901: “A lease of land for the exploration and development of min-erais is executed by the lessor in the hope and upon the condition, either express or implied, that the land will be developed for minerals. Hence, it would be unjust and unreasonable, and contravene the nature and spirit of the lease, to allow the lessee to continue to hold the land for any considerable length of time without making a reasonable effort to develop it according to the express or implied purpose of the lease, even though there is a provision in the contract for the payment of a minimum royalty.” (See also Annotation, 76 A.L.R.2d 721.) In Brooks v. Gaffin, 192 Mo. 228, 90 S.W. 808, forfeiture was enforced for violation of the provisions of a lease, this court saying: “Whatever may be the rule in other states, and whatever expressions may be found in the earlier cases, * * * the later decisions in this state fully sustain the doctrine that, where the deed contains a provision for forfeiture for breach of an essential condition of the deed, ejectment will lie for the possession of the premises.”

Plaintiff also claims the forfeiture of his lease resulted from a conspiracy of the Bank and Jones with Humphreys who had first negotiated with plaintiff for a sublease from him apparently through one Lester, a mining engineer. Plaintiff had made a sublease of the land involved, offering also adjoining land owned by him, to Lester who prepared a sublease to Hum-phreys which Humphreys never executed. It appears that both plaintiff and Lester were to get substantial additional royalties, over those required by plaintiffs lease, if Humphreys subleased through them. The Bank and Jones did lease the land involved to Humphreys on April 15, 1961. Hum-phreys says there was no evidence to connect him with either the default of plaintiff on his lease or the termination of plaintiffs lease by the Bank and Jones. Hum-phreys made contact with the Bank and Jones through Cecil Veatch of Webb City (engaged in real estate, insurance and loan business) who looked after the Jones’ interests in the area. The Bank and Jones say that the mining land was never occupied by plaintiff; that plaintiff was never prevented by anyone from going on the land or from mining the land while the lease to him existed; and that there was no evidence of any concerted action or knowledge of each other between them and Humphreys before plaintiff defaulted. They say there is no basis for a conspiracy action against them, citing Rosen v. Alside, Inc., Mo.Sup., 248 S.W.2d 638, 643, in which we said: “A civil conspiracy is an agreement or understanding between two or more persons to do an unlawful act, or to use unlawful means to do an act which is lawful. * * * The gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy or concerted design resulting in damage to plaintiff. * * * Conspiracy does not ordinarily give rise to a civil action unless something is done pursuant to it which, without the conspiracy, would create a right of action against the defendants severally.”

The trouble with plaintiffs claim of conspiracy is that there is no evidence of an unlawful act by his lessors. They had the right under the plain terms of plaintiffs lease to terminate his lease when he did not make the payment due February 1, 1961. Likewise Humphreys had the right to contract with the Bank and Jones for a lease after the lease with plaintiff had been terminated. There is nothing to show that either the Bank, Jones or Humphreys had anything to do with plaintiffs failure to make the payment due February 1, 1961. Perhaps at one time, plaintiff thought Humphreys would take a sublease under plaintiffs sublessee, Lester, but the 45 days for commencing operations required under that lease had expired many months before plaintiffs February 1, 1961 payment was due; in fact before his August 1, 1960 payment was due. Thus these negotiations afforded plaintiff no basis to hold without making the required payment. It was plaintiffs obligation to have operations commenced on the land prior to February 1, 1961 or to make the payment due on that date and he did neither. We find no merit in plaintiff’s further contention that the Bank and Jones had no authority to terminate the lease to plaintiff and make a lease to Humphreys without permission of a court of equity. If they had authority to lease to plaintiff as he contends, they had authority to lease to someone else when his lease was terminated. Therefore, we hold the trial court correctly determined that plaintiff “defaulted and after due notice, as per terms of the lease, said lease was terminated; and that the lease from owners of land to Vincent Lee Humphreys was entered into after termination of the lease with plaintiff and the Court finds that there is no genuine issue in this case as to any material fact.”

The judgment is affirmed.

All concur.