author: WESTHUES, Chief Justice.

text:
    STATE of Missouri, Respondent, v. Roy Dudley JAMES, Appellant.
    No. 49509.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.

      Thomas F. Eagleton, Atty. Gen., Jefferson City, James J. Sauter, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   WESTHUES, Chief Justice.

On January 29, 1962, in the Circuit Court of Greene County, Missouri, Roy Dudley James was convicted by a jury on a charge of murder in the second degree. By the verdict, the punishment was fixed at imprisonment in the State Penitentiary for a term of ten years. A motion for new trial was filed and thereafter overruled by the court. Sentence was pronounced. The defendant then appealed to this court.

Defendant was represented by counsel throughout the trial. After an appeal was taken, defendant engaged new counsel, but no brief was filed for him in this court. In the motion for a new trial, defendant stated that the jury “let their emotions carry them away and convicted the defendant of adultery and for marrying the baby sitter and not” for murder. Complaint was made that certain exhibits which were not admitted as evidence were exposed to view of the jury; that Exhibit No. E should not have been admitted in evidence; that the trial court erred in not instructing on the theory that defendant killed deceased in defense of his home; that the prosecutor was guilty of improper argument; and, finally, that a new trial should have been granted on newly discovered evidence.

The evidence presented an unusual state of facts. Deceased, Kenneth Kyger, was married and had a wife and three small children (ages 3, 2, and 1). On May 5, 1961, prior to the date Kyger was shot (August 17, 1961), deceased and his wife separated. A divorce suit was filed and was pending on August 17. Mrs. Kyger and her small children moved from the place where they had been living in Springfield to another address, 1000 St. Louis Street. Mrs. Kyger went to work to support her children and employed Bonnie Maples, age 17, as a baby sitter and she lived with the family.

The defendant James was employed as a truck driver hauling milk. The evidence disclosed that he had a wife and three children in the State of California. About August 3 or 4, 1961, James moved in with Mrs. Kyger and her family and remained there until about 2:00 a. m., on August 17 when he shot and killed the deceased. Thereafter, James and Mrs. Kyger no longer went together. On October 11, 1961, James married Bonnie Maples, the baby sitter. She was his wife on the date of the trial and testified for him.

The evidence as to what happened on the night of the shooting was substantially as follows: During the evening before the shooting, defendant and Mrs. Kyger drove to Republic, Missouri. On their way, Mrs. Kyger saw and waved to her husband. Bonnie Maples, a witness for the defendant, testified that she had been out with girl friends during the evening and arrived at the apartment about 12:30 a. m. Before she turned out the lights and while preparing to go to bed, she noticed a truck going up and down an alley next to the apartment. She did not notice at the time who was driving the truck. After she turned out the lights, she saw the truck being parked in the alley and thereafter saw a man walking toward the front of the apartment. She also noticed that the man was staggering and as he drew nearer, she saw that it was Kyger. Bonnie testified she then awakened Mrs. Kyger and the defendant. According to Bonnie, Mr. Kyger “came to the door and started kicking and beating it and cussing everyone and no one in the house said anything.” Bonnie left by a back way and called the police. Mrs. Kyger, wife of the deceased, a witness for the defendant, testified that the defendant had lived in her apartment about two weeks before August 17, 1961, and that he paid part of the food and rent bills; that he had his meals and slept there; that he had all of his clothing in the apartment.

As to what occurred at the time of the shooting, Mrs. Kyger stated that she was awakened by Bonnie; that on looking out the window, she saw Mr. Kyger; that he came to the door and, “Well, what he done, he was ravin’ around, he was wantin’ in, let him in.

******
“Q What was he doing to the door ?
“A Well, he was poundin’ on it right then but then he said to open it or he was goin’ to come on in, he was goin’ to bust it in, then he kicked it-in.”

Mrs. Kyger testified that after her husband entered the room, the defendant told him “to just stand right there”; then a shot was fired. The witness testified that her husband drank to excess and that he was a violent and dangerous man; that she had informed the defendant of her husband’s propensities.

It was in evidence that the defendant had purchased a shotgun from one of his customers on the day before the shooting and that the vendor had given defendant some shells. When Mrs. Kyger was asked about the defendant having his personal belongings at her apartment, she gave the following testimony:

“Q Was his radio there?
“A Yes.
“Q His guns, the shotgun ?
“A That gun was there, that one night, that night.”

The State introduced evidence by police officers that when they arrived at the apartment, they found deceased's body lying near the door; that it was necessary to push the door open because the feet of the deceased were in the way. These officers stated that defendant told them that, when deceased entered, defendant told deceased, “ ‘Stand right there where you are.’ ”; that deceased started toward him and defendant fired. Defendant showed the police where he was standing when the shot was fired; the point was about thirteen feet from where the body was found. It was in evidence that before deceased attempted to enter the apartment, the gun (a 12-gauge shotgun), was lying on a dresser beside the bed. Defendant admitted he had purchased the gun on the afternoon before the shooting. When the gun was found by the police, it contained a live shell and an empty shell was lying on the floor. No weapon was found on deceased nor was one found in his truck.

Defendant testified that the following occurred after he was awakened:

“Q And what happened then?
“A Well, Ken came to the door and started pounding and bangin’ and swearin’ and sayin’ ‘Open the door/ he was goin’ to kick it in, and all that.
“Q Could you tell what all he said, or not?
“A No, he was kinda — he was talk-in’ loud and kinda tongue-tied.
“Q Could you tell whether or not he had been drinking?
“A No, I couldn’t say.
“Q After * * * what happened next?
“A Well, he kinda stopped and walked back to his pickup truck and then he come back to the door and he says, ‘All right, open the God damned door,’ or something like that, or he was going to kick it in.
“Q How could you tell he walked back to the truck?
“A Well, from where I was standing, in the corner, I could see out the front windows of the apartment, and the pickup truck was sitting, well like looking out that window. (Indicating) I was back away from the windows. He walked back over and opened the right hand door of his pickup truck, stepped over the wall that was sitting right there in front, then he come back over the wall and up to the door. I figured that he got something then out of the pickup truck to break the door open, or something.
“Q Then when he came back to the door, what did he do?
“A That’s when he said, ‘All right open the door or I’m going to break it in,’ or something.
“Q What did you do?
“A Well, I * * * now, I think that’s when I grabbed the shotgun.
“Q Did he kick the’door in?
“A Yes, sir.
“Q When did you inject a shell in the shotgun?
“A I believe just as he was kickin’ the door in.
“Q Did you pump it loud enough so he could hear it?
“A Yes, sir.
“Q After that he kicked the door in?
“A Yes, sir.
“Q Is that what you call a pump type gun?
“A Yes, sir.
“Q And it makes a clattering noise when you inject a shell, does it or doesn’t it?
“A Yes, sir.
“Q After he kicked the door in, what did he do ?
“A Well, he come into the room almost to the foot of the bed there and I said, ‘Now stand right there,’ and then he turned and saw me and started cussin’ and started towards me.
“Q How did he start towards you ?
“A Lunged. I thought he was goin’ to come right over the corner of the bed on me.
“Q You heard some officers say you said he lunged there that night when they talked to you ?
“A Yes.
“Q Is that true?
“A . That’s right.
“Q He lunged toward you?
“A Yes, sir.
“Q Is that when you fired this gun ?
“A Yes, sir.
“Q Then what did you do?
“A I couldn’t see anything then.
“Q Why. couldn’t you ?
“A Well, the flash of the gun and it was dark in there, anyway, and I lost him for a minute, I couldn’t see him, and I re-chambered the gun. I wanted to scare him and I came back up — and I didn’t know where he was.
“Q When you shot the gun why did you shoot the gun ?
“A To scare him. I wanted to hold him there for the police.
“Q Had you sent Bonnie or somebody to get the police?
“A Yes, sir.”

Defendant admitted he knew that the Kygers had not been divorced. A doctor testified that Kyger died instantly as a result of the shooting.

On the night of the shooting, the police took pictures of the room and of the deceased. These were offered as evidence. The trial court, at defendant’s request, excluded all exhibits except one marked Exhibit E. The point made in the motion for new trial, that the exhibits which were excluded were left exposed to view of the jury, is unsupported by the record. Such complaints do not prove themselves and if not supported by the record are without merit.

The point that Exhibit E should not have been admitted must be ruled against the defendant. The trial court is vested with some discretion in admitting such evidence. Defendant says the exhibit .was a blurred picture of the door and casing which were kicked in. If that be true, how was defendant prejudiced? Defendant, in his motion for new trial, did not point out in what respect the exhibit was prejudicial.

The trial court instructed the jury on murder in the second degree, manslaughter, and self defense. The court further gave an instruction with reference to good character of the defendant and one concerning the evidence as to the turbulent and violent disposition of the deceased. However, the defendant complains that the court failed to instruct the jury that the defendant had the right to protect his home. In the circumstances, as shown by the evidence, the defendant was not entitled to such an instruction. Defendant was an intruder. The deceased’s children and his estranged wife were in the apartment. Defendant had no right to be there where, in fact, he was living in adultery in violation of the law. Sec. 563.150, V.A.M.S.

Defendant contends that “the jury of eleven women and one man let their emotions carry them away and convicted the defendant of adultery and for marrying the baby sitter and not for the crime he was being tried for.”

The case against defendant could not have been presented to a jury without disclosing the circumstances and conditions surrounding the situation. Furthermore, the situation was of the defendant’s own making. It was the defendant who brought before the jury the fact that he was living with deceased’s wife and that he later married the baby sitter. The allegation in the motion for new trial, that the jury was carried away with their emotions, is unsupported by the record. The point is ruled against the defendant.

During the argument of the State’s .attorney to the jury, he stated that Wanda Kyger saw the deceased and waved to him while she was riding with the defendant on their way to Republic earlier on the evening of the shooting. Defendant says the statement was not supported by the evidence. For a sufficient answer to that complaint, we quote the evidence of Wanda Kyger on that point:

“Q All right. Now, this trip that you took to Republic that evening be-for this occurred, I understood you to say you saw your husband pass on the highway and you waved at him that evening, is that right?
“A Yes.”

Defendant, in his motion for new trial, stated that he should have been granted a new trial because of newly discovered evidence consisting of a photograph showing the location of the deceased’s pickup truck. Defendant made no showing that such evidence could not have been obtained before trial. In fact, defendant’s witnesses testified with reference to the parking of the truck. It is apparent that the photograph would have been but cumulative of other evidence produced by the defendant. The trial court’s action in denying the motion was justified. State v. Pinkerman, Mo., 349 S.W.2d 951, l. c. 953(4-6).

We have reviewed all points preserved in the motion for new trial and such matters which we are required to examine by S.Ct. Rule 28.02, V.A.M.R. No prejudicial error appearing in the record, the judgment is hereby affirmed.

All concur.


source: Caselaw Access Project

author: HOLMAN, Commissioner.

license: Public Domain

text:
    Jack WHALEY, Appellant, v. Jewell M. ZERVAS, Respondent.
    No. 49276.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.

      Edward P. Burke, Strubinger, Tudor, Tombrink & Wion, St. Louis, for appellant.
    Murphy & Kortenhof, Joseph M. Korten-hof, St. Louis, for respondent.
   HOLMAN, Commissioner.

In this action plaintiff sought to recover damages in the sum of $20,000 for personal injuries sustained when the truck he was driving overturned. The trial resulted in a verdict for defendant. Plaintiff has appealed from the ensuing judgment and here makes the sole contention that the trial court erred in giving Instruction No. 6 at the request of the defendant.

The casualty occurred on April 29, 1959, in Franklin County, Missouri, at the “T” intersection of Highways 66 and 30. Highway 66 runs generally east and west at that point and consists of two lanes for traffic in each direction. A grassy strip with a dip in the center divided these traffic lanes. Highway 30 runs north and south but terminates at Highway 66 which it enters from the south. There is a graveled crossover between the eastbound and westbound lanes of Highway 66 at this intersection. A “Stop” sign is maintained at the point where traffic enters Highway 66 from Highway 30, and there is a “Yield” sign controlling vehicles entering the westbound lanes at the crossover.

Plaintiff testified that on the date mentioned he was employed by Kenosha Transport Company of Springfield, Ohio, as an over-the-road driver; that he was taking three trucks from Springfield, Ohio, to Albuquerque, New Mexico; that he was driving one large truck with a small truck mounted thereon, and the third truck was being towed by use of a tow bar; that he was westbound on Highway 66 and approached the intersection where the casualty occurred while driving in the right-hand lane at a speed of 40 miles per hour; that when about 100 feet from the intersection he heard the squeal of brakes and then saw the car driven by defendant proceeding across the crossover; that the car continued making a left turn until it straddled both westbound lanes “and I was sitting almost on top of it; I swerved to the left to avoid contact with it, and when I tried to get the vehicle straightened up, I finally had it straightened up, * * * ” defendant’s car moved back over into the south westbound lane in front of the truck; that he then swerved again to the left but got too close to the shoulder and the truck rolled over.

Plaintiff further testified that after the trucks rolled over he “blacked out”; that when he recovered consciousness someone was attempting to pull him out of the cab; that this person, whom he later learned was Paul Phipps, put him in his car and they drove on west trying to overtake defendant’s car; that they located defendant, and notified a highway patrolman who made an investigation of the occurrence.

On cross-examination plaintiff testified to three versions of the distance his vehicle was from Highway 30 when he first saw defendant’s car. One version, as stated, was that he was 100 feet back when he saw defendant’s car. He later stated that he was 35 or 40 feet from Highway 30 when he saw it, and finally he testified that when he first saw defendant’s car it was straddling the line dividing the westbound lanes, and “I was almost right on top of it.”

Defendant testified that she was driving her 1956 Mercury with her sister as a passenger; that they were going to Sullivan, Missouri, and approached Highway 66 from the south on Highway 30; that she stopped before crossing the eastbound lanes and also stopped at the “Yield” sign before turning left into the westbound lanes because a large truck was passing; that she saw plaintiff’s truck 150 to 200 feet back and drove into the right westbound lane and kept her car in that lane; that she then heard this “terrible noise” and looked in her rear-view mirror and saw the truck “practically on top of me”; that the truck then swerved to the left and I saw in the rear-view mirror that it had turned over; that she went on to a garage a short distance down the road and sent the garage men back to the scene of the occurrence; that she then proceeded west until plaintiff and Mr. Phipps stopped her.

Defendant admitted that she was arrested and later entered a plea of guilty and paid a fine for “not yielding the right of way.”

Donald Rodgers, the highway patrolman who investigated the occurrence, stated that plaintiff’s truck laid down 100 feet of skid marks beginning at the east line of the intersection and angling from the center line of the westbound lanes; that plaintiff’s statement to him was, “I was going west on Highway 66 at governor’s speed of 40 miles per hour. This lady came across this intersection in front of another car and me. Then she pulled directly in front of me without any warning; swung to the outside lane, then just as I started by her, she cut back to the other lane in front of me. That’s when I lost control.” Defendant’s statement to him was that she had “stopped there to let a truck go by and he was way back there, and I pulled out and went over into the far lane, and I heard the brakes squeal and I looked in my mirror and saw him go off to the side. I went on to the garage and asked those men to come down and help him as there was nothing I could do.”

Plaintiff’s verdict-directing instruction hypothesized defendant’s failure to yield the right of way to plaintiff under the conditions detailed therein. As stated, plaintiff complains of error in the giving of Instruction No. 6 which reads as follows:

“The court instructs the jury that plaintiff, Jack Whaley, was under an obligation to exercise the highest degree of care to keep a lookout for the approach of other vehicles at the intersection formed by Highway 30 and Highway 66, accordingly, if you find and believe from the evidence that plaintiff failed to exercise the highest degree of care in keeping a lookout for the approach of the automobile operated by the defendant; and if you further find that such failure on the part of plaintiff, was negligence, if you so find, and if you further find that said negligence on the part of plaintiff, if any, directly and proximately contributed to cause plaintiffs injuries, if any, then you are instructed that you must return your verdict in favor of defendant even though you may find that she was also negligent in the operation of her said automobile.”

We will first consider plaintiff’s contention that the giving of the instruction was error because there was no evidence ■to support that submission. He bases,that contention upon admissions which were ■read from defendant’s deposition to the effect that when she pulled out of the crossover plaintiff’s truck was ISO to 200 feet •away — that she was not able to form an estimate of his speed and “if I had I am sure I would never have ventured out.” Plaintiff says that testimony was a binding admission that plaintiff’s failure to keep a lookout was not the proximate cause of the casualty. We do not agree. There is nothing in the admissions referred to which would preclude a finding that plaintiff failed to keep a lookout and that such failure was ■a proximate cause of the occurrence. The admissions are not contrary to defendant’s theory, as to plaintiff’s contributory negligence. Moreover, when such evidence is considered in connection with plaintiff’s testimony to the effect that when he first saw defendant’s car it was straddling the -line dividing the westbound lanes, and that his truck was “right on top of it,” it is clear that there was ample 'evidence from which the jury could reasonably have found that plaintiff negligently failed to keep a lookout and that such negligence proximately contributed to cause his injuries.

The next point stated in plaintiff’s brief is that “under the circumstances, where plaintiff would ordinarily have had the right of way, the instruction is erroneous in directing a verdict against plaintiff on a generalized finding of ‘failure to keep a lookout’ without requiring a further finding that if plaintiff had exercised the highest degree of care in maintaining a lookout, he would have discovered the approach of the defendant into his path in time to have avoided the accident.” No case is cited which holds (under facts and circumstances similar to those before us) that the omitted element complained of is required to be included in a “lookout” instruction. Plaintiff has cited Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, but that case is really authority contrary to his contention. In Moore, in discussing a “lookout” instruction, we said that “In that type of submission it is generally considered sufficient to hypothesize failure to keep a lookout and require a finding that sfich failure was negligence and directly caused the collision.” 329 S.W.2d l. c. 25. We also stated therein that it is not essential that such ah instruction hypothesize the exact manner and means by which the party could have acted in avoiding the casualty so long as there was substantial evidence to support a reasonable finding that he had the means and ability to have so acted that a collision would have been avoided. Other cases upholding the sufficiency of instructions similar to the one under consideration, in the respect of which plaintiff complains, are Nelson v. Evans, 338 Mo. 991, 93 S.W.2d 691, and Horrell v. St. Louis Public Service Co., Mo.Sup., 277 S.W.2d 612. As indicated, we rule this contention adversely to plaintiff.

What we have heretofore said also disposes of plaintiff’s contention that “said instruction is erroneous because it failed to hypothesize facts and circumstances sufficient to guide a jury in determining the ultimate issue of negligence.” As we have stated, it was not necessary that the instruction hypothesize the manner or means by which plaintiff could have acted in avoiding the casualty. It is sufficient (under the facts in this case) if it requires a finding of failure to keep a lookout and that such failure was negligence which was a proximate cause of the casualty. The essential fact situation was hypothesized therein, but if plaintiff thought that additional facts should have been included in the hypothesis he should have offered an amplifying instruction. Hooper v. Conrad, 364 Mo. 176, 260 S.W.2d 496. This contention is accordingly overruled.

Plaintiff’s final point is that said instruction “erroneously places a burden on the plaintiff to maintain a lookout in the entire intersection of Highways 30 and 66 when his actual duty was to maintain a lookout ahead and laterally but not necessarily embracing the entire intersection.” No cases are cited in support of this contention and there is very little discussion of the point in the argument portion of the brief. The portion of the instruction complained of is the statement. “that plaintiff, Jack Whaley, was under an obligation to exercise the highest degree of care to keep a lookout for the approach of other vehicles at the intersection formed by Highway 30 and Highway 66.” We are unable to see how this statement could have been prejudicial to plaintiff. It is elementary that it is the duty of a motorist to keep a lookout both ahead and laterally. Since Highway 30 did not extend to the north, this was a relatively simple intersection. The only place traffic could enter the westbound lanes was at the crossover. When the instruction is, considered as a whole the only reasonable conclusion would be that it required plaintiff to keep a lookout for vehicles approaching the westbound lanes. In fact, the statement above quoted is immediately followed by the specific requirement of a finding that plaintiff failed to keep a lookout for the approach of defendant’s automobile, and that is the only specific requirement, in that respect, made by the instruction. This point is without merit and is accordingly ruled adversely to plaintiff.

The judgment is affirmed.

COIL and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: DALTON, Presiding Judge.

text:
    Billy Joe LUTTRELL and Patsy Joan Luttrell, (Plaintiffs) Respondents, v. STATE HIGHWAY COMMISSION of Missouri, (Defendant) Appellant.
    No. 49508.
    Supreme Court of Missouri, Division No. 1.
    May 13, 1963.

      Robert L. Hyder, Wilkie Cunnyngham, Jefferson City, for appellant.
    Vogel & Frye, Cape Girardeau, for respondents.
   DALTON, Presiding Judge.

Defendant, State Highway Commission of Missouri, has appealed from an adverse judgment entered against it in an ejectment suit. The court held that plaintiffs were entitled to possession of specifically described real estate located in Cape Girardeau County, Missouri, except a small portion thereof which was said to lie within the boundary lines of an old road as it existed prior to January 9, 1956. The real estate from which the court ordered the defendant ejected was, in fact, certain highway right-of-way upon which, in the summer of 1956, the Commission had constructed and has since maintained supplementary State Highway “H”, in Cape Girardeau County. The court also found that defendant had committed injury and waste whereby plaintiffs had been damaged in the sum of $100. The judgment provided that plaintiffs have and recover the possession of the described property, awarded plaintiffs $100 damages and assessed the costs against the defendant.

Appellant says that this court has jurisdiction of the appeal, because it contends that it had an easement for the construction and maintenance of the state highway upon the described real estate ; and that the judgment of the court, in addition to giving money damages against defendant, ordered defendant ejected from the premises and “hence this action involves title to real estate,” citing Article V, Section 3, Constitution of Missouri 1945, V.A M.S.

Respondents suggest that this court also has jurisdiction of the appeal under Article V, Section 3 of the Missouri Constitution, for the reason that the cause involves the construction of the Constitution of the ■United States, Amendment V, Amendment XIV, Section 1, and a construction of the Constitution of Missouri, Article I, Section 26, in that respondents contend that appellant has attempted to take their property in violation of the said constitutional provisions. There is no merit in respondents’ contentions since no constitutional provision is referred to in any of the pleadings, and no constitutional issue has been properly presented, or preserved. City of St. Louis v. Butler Company, 358 Mo. 1221, 219 S.W.2d 372, 376.

While the jurisdiction of this court has not been questioned by either party, nevertheless, since this court is a court of limited and not general jurisdiction, it is our duty to determine whether this court has jurisdiction of this appeal. Gennari v. Norwood Hills Corp., Mo.Sup., 322 S.W.2d 718, 720; Johnson v. Duensing, Mo.Sup., 332 S.W.2d 950, 953. We have reached the conclusion that it does not have jurisdiction of this appeal and that this cause must be transferred to the St. Louis Court of Appeals for determination.

Plaintiffs’ petition, as filed in the Cape Girardeau Court of Common Pleas on the 18th of July, 1961, contained two counts, one in ejectment to obtain possession of specifically described real estate, with a prayer for monthly rents and profits in the sum of $100, for $1,500 damages and $100 per month rents and profits from and after the entry of judgment in the cause until possession be restored to plaintiffs, and for their costs. In a second count the plaintiffs sought to have the title to described real estate quieted and determined in them. Plaintiffs alleged that defendant claimed some right, title or interest in and to the premises described which was adverse to plaintiffs, and the precise nature and character of which was unknown, but was without merit or legal validity and constituted a cloud upon the plaintiffs’ title to the premises described. Plaintiffs prayed judgment quieting the title to the described premises in them against all claims and demands of defendant or those claiming under defendant.

After a motion to dismiss for want of jurisdiction had been filed and overruled, the defendant filed an answer to count one and count two of plaintiffs’ petition denying each and every allegation contained in each and all of the paragraphs of the petition not specifically admitted; alleged that defendant was the “alter ego of the State of Missouri in all matters pertaining to the location, relocation, reconstruction, improvement and maintenance of state highways,” and that it was not liable in any action for any alleged tort. It was further alleged that the real estate sought to be recovered was right-of-way for Route “H” in Cape Girardeau County on which the defendant had constructed permanent improvements for public highway use and that the public had been using this particular right-of-way since sometime in 1956. Defendant further alleged that it had obtained conveyances of said right-of-way from named persons for use of the State Highway Commission and that defendant had been required to spend very large amounts of money from the state road fund and that the making of said permanent improvements thereon was open, visible and publicized throughout Cape Girardeau County and other territory and was known to these plaintiffs and that at no time during or before said construction of said highway did anyone make any claim or suggestions to defendant that it had not acquired and did not have all of the right, title and interest in said right-of-way and lands necessary for the construction and maintenance thereon of said state highway.

Defendant also pleaded a five-year statute of limitations as a defense and alleged that plaintiffs’ remaining land abutting said construction had been benefitted and its value increased so that the market value of the remaining land, after the construction of the improved highway, was greater than all the land claimed by plaintiffs before said construction.

The prayer of the answer was that defendant have judgment against the plaintiffs, and that plaintiffs’ petition be dismissed with prejudice, and for costs.

As we read this answer it constitutes a general denial, a plea of nonliability for tort, a plea of estoppel in pais, a plea based upon a statute of limitations, a plea that conveyances had been obtained from named persons, a plea of no damages by reason of special benefits received and a prayer for dismissal with prejudice. Defendant did not ask for any specific affirmative equitable relief, nor ask that defendant’s title or right to an easement be established or that the right, title or interest of defendant in the premises be determined.

A jury was waived and the cause was tried to the court without the aid of a jury. At the close of all the evidence plaintiffs dismissed count two of their petition by which they had sought to have the title to the described real estate quieted and determined to be in them, and, in open court, plaintiffs waived all claims for monthly rents and profits from the real estate described in count one. Thereupon judgment, as hereinbefore stated, was entered.

The cause of action stated in count one of plaintiffs’ petition was for ejectment and the judgment entered in favor of the plaintiffs decreed only the relief asked, to wit, possession of the premises and $100 for injury and waste suffered by plaintiffs. As stated, the answer of defendant did not pray for any affirmative relief nor do more than set up certain defenses and the judgment denied these defenses and granted the relief asked in the petition.

In the trial of the cause in support of the plea of estoppel in pais defendant offered evidence tending to show that defendant had made .permanent improvements on the real estate in question at a cost of $75,931.70, exclusive of engineering costs, but, as stated, defendant’s pleadings made no request for any affirmative relief either at law or in equity to determine title, nor did it ask judgment for any sum sufficient to give this court jurisdiction, and the judgment entered did not adjudge title but only the right to possession, and gave the money judgment for $100.

Ejectment is a possessory action. Wood v. Gregory, Mo.Sup., 155 S.W.2d 168, 170, 138 A.L.R. 142; City of St. Charles v. De Sherlia, Mo.Sup., 303 S.W.2d 32, 34. Defendant’s answer had not asked an adjudication of title, as it might have done. Davidson v. Eubanks, 354 Mo. 301, 189 S.W.2d 295[1], 161 A.L.R. 450; Reynolds v. Stepanek, 339 Mo. 804, 99 S.W.2d 65, 68; Titus v. North Kansas City Development Co., 264 Mo. 229, 174 S.W. 432; Hecker v. Bleish, 319 Mo. 149, 3 S.W.2d 1008, 1019 [17-19]. And see Domyan v. Dornin, Mo.App., 348 S.W.2d 360, where the judgment entered in the cause directly affected title to real estate.

After the plaintiffs dismissed the second count of their petition and the cause was submitted on count one, the action was solely one in ejectment in which no title relief was sought or granted. Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471, 476; Auldridge v. Spraggin, 349 Mo. 858, 163 S.W.2d 1042; Gibbany v. Walker, 342 Mo. 156, 113 S.W.2d 792, 794. When the cause was submitted to the court the title to real estate was involved only incidentally or collaterally and not directly so as to give this court appellate jurisdiction. Ballenger v. Windes, 338 Mo. 1039, 93 S.W.2d 882; Townsend v. Lawrence, Mo.Sup., 262 S.W.2d 55; State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, 176[2]; Frederich v. Tobaben, Mo.Sup., 117 S.W.2d 251; Wakefield v. Dinger, Mo.Sup., 130 S.W.2d 490.

Since the pleadings in this case did not, at the time the cause was submitted, request that title be determined to be in either the plaintiffs or defendant, and the defendant had filed no pleading asking judgment that defendant had an easement for highway purposes in the described real estate and, since the judgment entered did not attempt to adjudicate title within the meaning of Article V, Section 3, Constitution of Missouri 1945, this court has no jurisdiction of this appeal.

The cause is ordered transferred to the St. Louis Court of Appeals for determination.

All concur.


author: STOCKARD, Commissioner.

text:
    STATE of Missouri, Respondent, v. Donald Gene DURHAM, Appellant.
    No. 49699.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied May 13, 1963.

      Donald Gene Durham, in pro. per.
    Thomas F. Eagleton, Atty. Gen., Thomas R. Green, Sp. Asst. Atty. Gen., Jefferson •City, for respondent.
   STOCKARD, Commissioner.

Defendant was convicted of burglary in the second degree and of stealing, and he was sentenced under the habitual criminal act to imprisonment for eight years for the burglary and to four years for the stealing, the terms to be served consecutively. Defendant has filed no brief in this court as appellant. He has filed pro se what he denominates to be a “reply” to the brief filed by the State as respondent. In the motion for new trial defendant asserts that the evidence was insufficient to support the verdict, that the court erred in overruling his motion to suppress evidence, and that error resulted from an incident occurring in the courtroom.

On March 27, 1962, at the close of the business day, the manager of the Newberg Lumber Company closed the building and locked the doors. The next morning the Staple had been twisted out of the hasp by which the door was locked with a padlock, the-built-in lock of the door had been pried open, and various -items of property having the value of $450 were missing including a chain saw, four power utility saws, two electric drills, some screw drivers, a radio and certain other items.

About four o’clock in the afternoon of ^ March 27, 1962, defendant was at the home ' of Alvie" Burton Hacker in Edwardsville, Illinois, and he" left there with Robert Willis to drive to Newberg, Missouri. Albert Willis, a resident of Newberg, testi-"fie’d'ffiat at about 1:30 o’clock in the morn-"Hng of March 28j' he saw defendant park his ■' 1954-PIymouth- automobile about 200- feet from the back of the Newberg Lumber Company. Two men got out of the automobile and walked down the alley and defendant stayed with the automobile. While the two men were gone defendant “acted like he had light trouble, or something.” He lifted the hood of the automobile and flashed the lights on and off. The two men returned' in about thirty minutes but had nothing with them that Albert Willis could see, and after getting in the automobile they and defendant drove away. At 8:00 o’clock in the morning of March 28, defendant returned to the home of Alvie Burton Hacker. He told Hacker that he had obtained a chain saw and that he had “paid $50 down on the saw.” Defendant got the chain saw from his automobile, which admittedly was the saw which had been stolen from the Newberg Lumber Company only a few hours earlier, and told Hacker he would leave it at his house. He also gave Hacker four screw drivers, and suggested that he, Hacker and Robert Willis attempt to solicit some tree trimming jobs. They started out in defendant’s automobile with Hacker driving at defendant’s request. Shortly after noon Reece H. Morgan and Gerald F. Johnson, members of the Illinois State Highway Police, stopped the automobile of defendant. Trooper Morgan stated to Hacker that he was under arrest for improperly displaying the license plate. Through the back window of the automobile Trooper Morgan saw a radio which had the price of $23.95 marked on it, and he also saw a display carton of new screw drivers lying on the seat. At the trooper’s request Hacker opened the trunk of the automobile for inspection. Defendant and Robert Willis were asked to go to the rear tif the automobile, and Trooper Morgan then searched' • the automobile for weapons to insure the safety of himself and Trooper Johnson while taking Hacker and the other two occupants of the automobile to the police station. In this search Trooper Morgan found on the floor of the automobile between the 'seats, but under ⅛ blanket, various items of property all of which were later discovered to have been stolen from the Newherg Lumber Company during the preceding night. On the way to the police station, defendant told Robert Willis that they would have to get rid of the screw drivers, and Willis put them under the back seat of the car where they were later found by the police. Defendant also told Hacker “not to worry about anything at all, * * * [that he, Hacker] didn’t know anything about anything, so not to worry about it.” At the police station defendant and his two companions were “shook down,” and later Hacker took a “lie-detector test” which confirmed his contentioxi Jiat he had no knowledge that the property found in the automobile, and the chain saw and screw drivers at his home, had been stolen

Defendant testified that he had nothing to do with the burglary, and that about 7:00 o’clock in the morning of March 28 he had purchased the pioperty which was found in his automobile, and the chain saw, from Marckum Vincent Trail at the corner of 19th and Madison Streets in St. Louis. Trail did not testify. Defendant further testified that at the time he purchased the articles Trail was living in St. Louis, “around there in Forest Park,” but that “through letters” he had received he had heard that Trail was living in East St. Louis. Defendant also testified that at the time of his arrest in Illinois he had with him a bill of sale which he had received from Trail, but that he had concealed the bill of sale in his boot, and he did not show it to the Illinois police because he was afraid it would “disappear like another bill of sale did disappear.” However, he testified that he did tell the Illinois police that he had a bill of sale and that he “would produce it at my trial.” Defendant offered in evidence a document labeled “Bill-of-Sale” dated March 28,1962, purportedly in the handwriting of Trail and signed by him, in which it was stated that he sold a chain saw to defendant for $75 with a payment of $20 down and $55 to be paid in 60 days, and that the remainder of the articles therein listed were to be “sold on a ½ commission of whatever legal tender obtained & not to be sold for less than the total amount of $150.00.”

In his motion for new trial defendant first contends that the evidence is insufficient to support the verdict because (a) there was no “factual evidence” that he broke into and entered the Newberg Lumber Company building or that he stole anything therefrom, (b) the bill of sale from Trail, which was not impeached and “must be taken as true by the jury,” explained his possession of the stolen articles, and (c) the verdict is contrary to the court’s instruction that possession of stolen goods alone would not, by itself, sustain a verdict of guilty. We note that defendant did not submit to the court a motion for judgment of acquittal.

The evidence in this case relied upon by the State to establish defendant’s guilt is circumstantial. However, in a burglary and stealing case the State may, and frequently must, rely on circumstantial evidence. Such-evidence is sufficient provided the facts and circumstances relied upon by the State are consistent with each other and with the hypothesis of defendant’s guilt, are inconsistent and irreconcilable with his innocence, and point so clearly and satisfactorily to his guilt that they exclude every reasonable hypothesis of innocence. State v. Murphy, 356 Mo. 110, 201 S.W.2d 280, 282; State v. Worley, Mo., 353 S.W.2d 589, 594. The question thus presented is whether the evidence in this case fails to meet the above requirements for the reasons assigned by defendant.

It has long been the rule that an inference of guilt is permissible from the possession of property recently stolen in a burglary, and the inference exists both as to the burglary and the stealing. State v. Denison, 352 Mo. 572, 178 S.W.2d 449, 455; State v. Oliver, 355 Mo. 173, 195 S.W.2d 484; State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327; State v. Reagan, Mo., 328 S.W.2d 26. However, to authorize the inference of guilt, the defendant’s possession, of the stolen property should not be too remote in point of time from the crime, and it should be a personal possession, exclusive, distinct and conscious, and unexplained. “ ‘Where the character of defendant’s possession is such as to fulfil these requirements, it is evidence of his guilt, connecting him with the commission of the burglary, and, in the absence of countervailing evidence, may be sufficient to sustain a conviction of burglary.’ ” State v. Watson, Mo., 350 S.W.2d 763, 766. There is no question in this case concerning the fact of the burglary, nor is there any question as to the identity of the property in defendant’s possession as that stolen in the burglary of the Newberg Lumber Company. Also, defendant had the property in his possession at 8:00 o’clock on the morning of March 28, 1962, a matter of only a few hours after it necessarily had to have been stolen during the commission of a burglary. The facts and circumstances of the burglary and the stealing, the fact that defendant was present in Newberg and was seen near the lumber company at 1:30 o’clock in the morning, his admitted exclusive possession of the stolen property very recently after the burglary, and his efforts to conceal the possession of the property by hiding it under a blanket in his automobile, constituted “factual evidence” from which it was permissible for the jury to infer that defendant participated in both the burglary and the stealing.

Defendant’s contention that the bill of sale was not impeached and that it had to be taken as true by the jury is without merit. First, the circumstances under which defendant asserts that he obtained the bill of sale and acquired the stolen property, when considered with his testimony that he had the bill of sale when arrested but kept its existence a secret by hiding it in his boot, is to a certain degree self-impeaching. Second, the jury was not bound by defendant’s explanation, even though not impeached, and it was entitled to disbelieve the explanation and then draw an unfavorable inference from his possession of the stolen property. This was expressly ruled in State v. Denison, supra, where it was said: “[I]t seems to be appellant’s theory that if he presents an explanation [of his possession] then the jury cannot draw an unfavorable inference from his possession, whether they believe his explanation or not. But this is not the law. If it were, the rule of evidence under discussion would be useless. In almost every such case some explanation is offered by the accused. The doctrine in this State and elsewhere is that the credibility of the explanation is a question of fact for the jury; and if the jury disbelieves it the case stands with his possession unexplained.” See also State v. Hagerman, 361 Mo. 994, 238 S.W.2d 327, 329.

The trial court instructed the jury that “evidence of possession by the defendant of recently stolen property, if you so find, is not of itself proof of defendant’s guilt of the stealing of such property, but it is for the jury to consider such facts and circumstances along with all of the other facts and circumstances in evidence * * Defendant’s contention that the verdict was contrary to this instruction erroneously presupposes that there was no other evidence for the jury to consider but that of his possession. The jury was entitled to consider the admitted fact of his presence in Newberg, and the evidence that he was near the Lumber Company at 1:30 o’clock in the morning of March 28, 1962 under suspicious circumstances. It could also consider the reasonableness of the alleged circumstances by which defendant said he obtained possession of the stolen property, the fact that he had some of the property hidden under a blanket in his automobile,, that he had Robert Willis try to conceal the screw drivers after being stopped by the police, and his alleged possession of the bill of sale and his assertion that he hid it in his boot. The instruction properly told the jury that the fact of possession should be considered by them along with these other facts and circumstances. All of these facts and circumstances are consistent with each other and are irreconcilable and inconsistent with any reasonable theory of innocence. The first assignment of error in the motion for new trial is without merit.

Before the commencement of the trial defendant filed a motion to suppress evidence on the basis that it was obtained by an illegal search and seizure. The substance of the allegations in the motion was that “the Highway Patrol of the State of Illinois * * * after stopping the car in which the defendant was riding and with no previous knowledge that a crime had been committed, searched the automobile and claimed to have found certain articles in said car that later proved to have been stolen,” and that the Highway Patrol “had no search warrant or other authority to search said car.” After a hearing at which Trooper Morgan, defendant and the other two occupants of the automobile testified,, and the circumstances of the arrest and search as previously stated were brought out, the trial court overruled the motion to suppress. At the trial the State offered in evidence the radio which was observed by the trooper through the window of the automobile, and the chain saw which defendant had left at the home of Hacker and which was picked up by the police with Hacker’s consent. The motion to suppress applied only to evidence “which was obtained by the Highway Patrol of the State of Illinois * * * by search and seizure of the automobile in which defendants were riding,” and did not apply to the radio and chain saw. See State v. Campbell, Mo., 262 S.W.2d 5. The State also introduced in evidence, without objection from defendant that they were obtained by an illegal search and seizure, four power saws and two Shop-mate power drills. These items were discovered by Trooper Morgan on the floor of the automobile under the blanket after the arrest of Hacker when he searched the automobile for weapons to insure the safety of himself and his fellow officer. Assuming that no obj ection at the time the items were offered in evidence was necessary to preserve for appellate review the ruling on the motion to suppress, see State v. Windsor, Mo.App., 289 S.W, 663, defendant has not demonstrated an unreasonable search and seizure.

Not every search without a warrant is unreasonable, nor for that matter, is every search pursuant to a warrant reasonable. In this case the search of the automobile was made in the State of Illinois by members of the Illinois State Highway Police without a warrant, but it was made in connection with and incidental to the lawful arrest of the operator of the automobile to look for weapons to insure the safety of the police officers. Chap. 121, par. 307.16, Illinois Revised Statutes, provides that members of the Illinois State Highway Police “are conservators of the peace and as such have all powers possessed by policemen in cities, and sheriffs, except that they may exercise such powers anywhere in [that] State.” In People v. Wrest, 345 Ill.App. 186, 103 N.E.2d 171, after citing and quoting the above statute, it was expressly held that a member of the Illinois State Highway Police has authority without a warrant to search the immediate premises as an incident to a lawful arrest. In People v. Barg, 384 Ill. 172, 51 N.E.2d 168, certiorari denied, 321 U.S. 798, 64 S.Ct. 939, 88 L.Ed. 1086. the immediate premises which were searched incident to an arrest consisted of the. automobile in which the arrested person was riding. In addition, a search may be made when reasonably necessary to protect the arresting officer from attack, that is, to insure the safety of the arresting officer, People v. Burnett, 20 Ill.2d 624, 170 N.E.2d 546, and according to Trooper Morgan that was the purpose of the search in this case. There is no merit to this contention of error.

The third and last assignment of error pertains to an incident which occurred during the argument of defense counsel to the jury. The transcript shows the following:

“Mr. White: * * * and might want him to be cleared, and no doubt she did, but she’s not getting any money for trying to clear him, she’s not on anybody’s payroll * * *
“Reckon I’d better wait till this dies down a little bit.
“(Thereupon, there was a pause in proceedings, after which time the following further proceedings were had:)
“The Court: Go ahead and finish your argument.
“(Thereafter, Mr. White finished his closing argument.)”

In the motion for new trial defendant alleges that Robert Willis, who was originally jointly charged with defendant but for whom a severance had been granted, “escaped from the custody of the officials and caused such a commotion that various remarks were made which together with the confusion of officials running through the courtroom with drawn guns so prejudiced the jury against the defendant that this defendant could not obtain a fair and impartial trial.” A hearing was had on the motion for new trial. Defendant testified that “just about the time that the defense finished its case” there was a commotion in the courtroom and that he heard someone say, “Willis escaped. There’s Durham’s partner.” He also testified that the prosecuting attorney said to him that “There goes your partner, he’s escaped.” In describing the incident defendant stated that “Police officers were running through the courtroom to obtain revolvers,” and that one Illinois State Highway Patrolman had a revolver out in his hand, and the other one had the revolver in his hand, still in the holster, that “the police officers were running all through the courtroom and they were going out to try to chase * * * Mr. Willis,” and that “a good two-thirds of [spectators] at least left the courtroom into the annexation.” The State offered no evidence on the motion.

The decisive issue on this appeal is whether the' trial court abused its discretion in failing to declare a mistrial at the time of the occurrence, or after verdict in failing to grant a new trial because of it. The trial judge was present, observed the occurrence, and was able to evaluate its effect on the jury, if any. We cannot say, as a matter of law, that the incident called for the declaration of a mistrial by the court on its own motion. At the time of the occurrence no request for a mistrial was made, and in fact there was no request whatever for any remedial action. It is the long established rule that a defendant may not first assign error in his motion for new trial on the ground the court refused to grant a mistrial when he did not request it. State v. James, Mo., 347 S.W.2d 211, 214; State v. Benjamin, Mo., 309 S.W.2d 602, 606; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878. It is obvious that the defendant, having passed the incident at the time without a request for any relief, either considered the incident of no consequence or was willing to gamble on the result and the effect it might have on the jury. In either event after verdict he cannot contend that by reason thereof he is entitled to a new trial. State v. Whitaker, Mo.,, 275 S.W.2d 316; State v. Tyler, Mo., 306 S.W.2d 452; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22.

The information is in proper form. The verdict of the jury is responsive to the issues, defendant was accorded allocution, and the punishment fixed by the court was authorized. The record does not show formal arraignment in the form prescribed by Supreme Court Rule 25.04, V.A.M.R., but the record shows that he was tried as though he had been arraigned and had entered a plea of not guilty. Defendant and counsel are shown to have been present throughout the trial, and the judgment and sentence are in due form.

The judgment is affirmed.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STORCKMAN, Judge.

text:
    Frank MASHAK, Appellant, v. John H. POELKER, Comptroller, Raymond R. Tucker, Mayor, A. J. Cervantes, President of the Board of Aldermen, and as Member of the Board of Estimate and Apportionment of the City of St. Louis, Missouri, a Municipal Corporation, Respondents.
    No. 49593.
    Supreme Court of Missouri, En Banc.
    May 13, 1963.
    Frank Mashak, pro se.
    Thos. J. Neenan, City Counselor, Eugene P. Freeman, Associate City Counselor, St. Louis, for defendants-respondents.
    Laura Andreas, Harold S. Cook, Fred A. Eppenberger, Echeal T. Feinstein, St. Louis, for Bar Ass’n of St. Louis, amicus curiae.
   STORCKMAN, Judge.

This is a declaratory judgment action in which the plaintiff attacks the validity of the employment of an administrative assistant for the judge of the juvenile division of the Circuit Court of the City of St. Louis. All of the regular circuit judges having disqualified themselves, the Honorable Sam C. Blair presiding as a special judge found the issues against the plaintiff and held the creation of the position to be lawfully authorized. The plaintiff appealed and the St. Louis Court of Appeals reversed the judgment of the circuit court and remanded the cause with directions to enter a judgment declaring the establishment of the position to be unauthorized by the state’s statutes. The opinion is reported in 356 S.W.2d 713. On the application of both parties, this court ordered the appeal transferred from the court of appeals. Among other things, the validity of the appointment of the administrative assistant depends upon the legislative authority conferred by Chapter 211, RSMo 1959, V.A.M.S.

The words of a statute must be given their ordinary meaning, but in case of ambiguity a statute must be construed in the light of the evil it seeks to remedy and, if necessary, the circumstances and conditions existing at the time of its enactment may be considered in order to promote the purpose and objects of the statute. St. Louis Southwestern Ry. Co. v. Loeb, Mo., 318 S.W.2d 246, 252[1]; Haynes v. Unemployment Compensation Commission, 353 Mo. 540, 183 S.W.2d 77, 82[9], Since the case was tried without a jury, the trial court properly allowed the parties wide latitude in the admission of evidence. Much of the evidence adduced is of no benefit in ascertaining the legislative intent and the powers of the City and the circuit court in executing its functions as a juvenile court. To the extent that the evidence is material, it will be considered and the immaterial will be disregarded.

Under § 211.411, subd. 3, RSMo 1959, V.A.M.S., a juvenile court “is authorized to seek the cooperation of all societies and organizations having for their object the protection or aid of children and of any person or organization interested in the welfare of children.” At the request of the judges of the Circuit Court of the City of St. Louis and the St. Louis Board of Public Service, the National Probation and Parole Association made a study of the juvenile court and selected related agencies in the City of St. Louis. The field work and preparation of the report of the study required thirty-nine weeks of time beginning in September 1956. The report consisting of 200 pages, exclusive of appendices, was filed in April 1957. The report, introduced in evidence as defendants’ Exhibit 3, is quite exhaustive, but we are primarily concerned with the Survey’s recommendation to establish a position referred to in the report as the Director of Court Services. The recommendation was accepted along with others relating to a comprehensive reorganization of the services of the juvenile court, but the name of the position was changed to Administrative Assistant to the Juvenile Court Judge.

The report at page 64 describes the duties of the office as follows:

"THE DIRECTOR OF COURT SERVICES While ultimate responsibility for administration rests with the judge of the division, he obviously cannot and should not attempt the day to day administration of the probation department and detention home. To execute policy established by the judge of the division and judges in General Term, a director of court services is recommended. The director of court services should be responsible for the administration of the probation department and the detention home. * * *.

“Duties and authority should be clearly defined for each position in the department so that each staff member will know exactly what he is responsible for and to whom. The department director should be responsible for selection of staff under him (from lists certified by the citizens advisory committee), recommend policies for consideration by the judge, develop an agency manual, assign duties, promote a staff development program, develop inter-agency agreements in cooperation with the advisory committee and the judge, develop an adequate administrative reporting program, prepare annual reports, and handle public relations.”

Judge David A. McMullan, one of the eighteen circuit judges of the City of St. Louis, was assigned to the juvenile division in the fall of 1957 and has served there since that time. He testified in substance that the circuit judges in general term recommended that the survey be made by the National Probation and Parole Association and he described the manner in which it was made and the various persons, committees, and organizations that took part in it. He estimated that the juvenile division had 70 to 80 employees of various kinds and had over 5,000 referrals a year. In 1959 the juvenile court had over 1,700 cases on its docket including neglect, delinquency, transfer of custody, and adoption cases. There were problems connected with assigning cases for investigation and report so as to use the best abilities of the juvenile officers. Also there was a lack of coordination between the field department and the detention home. In Judge McMullan’s opinion, it was impossible for the juvenile judge to properly conduct the court without an administrator who knows the operation of the court, how to handle personnel, how to administer, how to assign cases, how to acquire court reports and evaluate cases, and how to utilize various private and charitable organizations which perform services in connection with the care and maintenance of children. On the recommendation of the circuit judges in general term, the position of administrator was established; they adopted a job description, established the qualifications of the office, and fixed the salary at $12,000 maximum. The City approved the recommendation and made the funds available. Among the qualifications for the position was a Master’s Degree from an accredited school of social work and at least five years’ administrative experience. The existence of the position was widely advertised and there were about sixteen applicants. Mr. John P. O’Brien of Grand Rapids, Michigan, was ultimately appointed to the office and he went to work on January 1, 1959.

Judge McMullan further testified that the administrator is directly responsible to the juvenile court judge, that he carries, out.the judge’s policy and personnel practices. and sees that the treatment and supervision adjudicated by the judge is carried out. It is the administrator’s duty to see that the various investigations and examinations are completed and that proper reports and recommendations are provided for the information of the judge. These include mescal, psychiatric, and psychological examinations where required. Judge McMullan described in considerable detail the lack of coordination and effectiveness existing before the position of administrative assistant was established and also the improvement resulting therefrom, but the foregoing sufficiently indicates the import of his testimony.

Dr. Benjamin E. Youngdahl, Dean of the George Warren Brown School of Social Work at Washington University, testified in substance that the modern role of juvenile courts is to diagnose and treat the causative factors in child problems rather than to adjudicate guilt or innocence and to apply punishment; that such courts have widely adopted the use of professional services of sociologists and social workers to accomplish such purposes; that sociological skill' undertakes to diagnose the problem of the child and determine the proper treatment and in so doing uses other professions and sciences, such as medicine and psychiatry, and other existing methods, institutions, and facilities for the welfare of children; and that a professionally trained sociologist can assist the court in carrying qn its administrative services in this kind of structure by training and directing the staff in making proper diagnosis and recommendations and in carrying out the plan of treatment ordered by the court.

Kenneth R. Foresman, the Executive Director of Boys’ Town of Missouri, testified that he was a member of the staff study in connection with the report of the National Probation and Parole Association, and that he testified before a legislative committee in connection with the enactment .of Chapter 211 (Laws 1957, p. 642, approved , June 13, 1957). He described what .he considered a considerable improvement in the professional work of the staff of the juvenile court since the position of administrative assistant was established.

In addition to evidence of a formal nature regarding his right to maintain the suit, the plaintiff called three circuit judges who had served as judge of the juvenile court prior to Judge McMullan’s tenure. One of them testified he had drafted a twelve-point program for the improvement of juvenile court services, one point of which was the employment of a director of court services equivalent to an administrative assistant to a full-time judge. The plaintiff also called as witnesses the chief juvenile officer and eight deputy juvenile officers who testified with respect to their duties before and after the establishment of the position of administrative assistant. He also put on the stand a psychologist formerly employed by the City, a psychiatrist presently employed in the Health Division of the City, and two social workers employed by the City. The testimony of these juvenile court and City employees tended to show that the City had provided medical, psychiatric, psychological, and social services prior to the employment of Mr. O’Brien and tended to minimize the effectiveness of the services of the administrative assistant. Other evidence was calculated to show doubt on the part of City officials as to their authority to employ an administrative assistant.

The plaintiff has his contentions on appeal divided into eighteen points. Several of them are overlapping and others are but parts of other contentions. One point is that the trial court erred in failing to rule on plaintiff’s motion to strike or, in the alternative, to make parts of defendants’ answer more definite and certain. There is no showing that the motion was presented to the court and the matter was not pursued or referred to in any manner at the trial. There is no showing of prejudice. Ther.e is nothing preserved for our review.

The plaintiff contends there is no legislative authority for the establishment of the position in question. The defendants contend that they are authorized by the statutes, Chapter 211, and further that the circuit court under its inherent power is authorized to do all things reasonably necessary to preserve its existence and function as a court. We will consider the statutory power first.

Section 211.161 RSMo 1959, V.A.M.S., consists of three subdivisions. The first authorizes the court to cause a child within its jurisdiction to be examined by a physican, psychiatrist, or psychologist appointed by the court “in order that the condition of the child may be given consideration in the disposition of his case.” The second subdivision authorizes the use of the services of a state, county, or municipally maintained hospital, institution, or psychiatrist or health clinic “for the purpose of this examination and treatment.” The third subdivision of § 211.161 and the one with which we are more particularly concerned reads as follows : “A county may establish1 medical, psychiatric and other facilities, upon request of the juvenile court, to provide proper services for the court in the diagnosis and treatment of children coming before it and these facilities shall be under the administration and control of the juvenile court. The juvenile court may appoint and fix the compensation of such professional and other personnel as it deems necessary to provide the court proper diagnostic, clinical and treatment services for children under its jurisdiction.” Italics supplied. The defendants contend that the position of administrative assistant comes within the purview of the term “other facilities” and that the juvenile court is authorized to make the appointment in question.

The plaintiff contends that the trial court erred in holding that the employment of an administrative assistant to the judge of the juvenile court was authorized by the term “other facilities” appearing in § 211.161, subd. 3, because the word as used in the context of the statute does not mean a person but instead denotes inanimate rather than human agencies. In support of his contention the plaintiff cites Sloss-Sheffield Steel & Iron Co. v. Smith, 185 Ala. 607, 64 So. 337, 338, which is a suit for personal injuries wherein the plaintiff was struck by a plank and injured while working on a trestle. The plaintiff alleged a failure to furnish a sufficient number of competent and skilled workmen. In support of its plea of contributory negligence the defendant alleged that it was the plaintiff’s duty as superintendent of construction to see that proper facilities, ropes and appliances, were used. .The Supreme Court of Alabama held that the plea of contributory negligence was not responsive because the “word ‘facilities,’ in this connection, means convenient means, and ordinarily includes inanimate means rather than human agencies.”

The term “facilities” is not as limited as the plaintiff contends. In the case of State ex rel. Knight v. Cave, 20 Mont. 468, 52 P. 200, 203, the question involved was whether school teachers were within the meaning of a statute which authorized a special tax “to purchase lots and furnish additional school facilities”. The question was whether teachers’ salaries could be paid out of a fund derived from a special tax when other funds had been exhausted. Other statutes made general provision for the support and maintenance of schools including the employment and payment of teachers. Nevertheless the Supreme Court of Montana held that teachers and their services were within the meaning of the phrase “additional school facilities”, stating 52 P. 203: “It is admitted that the tax was levied and collected to furnish 'additional school facilities.’ To provide, when reasonably necessary or convenient, more school rooms, is to furnish additional school facilities. ‘Facility’ is not a technical word, but one in common use, and its meaning is to be found in the sense attached to it by approved usage. * * * Roget’s Thesaurus gives ‘aid,’ ‘assistance,’ and ‘help’ as equivalents of ‘facility.’ Webster, among other definitions of the word, includes ‘the quality of being easily performed; ease in performance; that which •promotes the ease of any action; advantage; valuable aid; assistance.’ The Century Dictionary follows the definitions of Webster, and adds ‘the means by which the performance of anything is rendered more easy; convenience.’ That which aids, assists, or makes more easy the acquisition of knowledge is a convenience and an advantage, and is clearly a ‘facility.’ Books, maps, globes, and charts are facilities to the imparting of knowledge. Through them or by means of them information is conveyed to the pupil. But the meaning of the word is not limited to inanimate bodies or things. Men are often facilities. Without a crew to man his vessel, the master of a ship would not have the necessary facilities. A school with a complement of pupils in every room, but lacking teachers, would certainly not have the facilities to carry on educational work. The question so frequently put, as to whether the school facilities of a certain city or town are good, is an inquiry which at once suggests the teachers, their sufficiency in number and their ability to impart knowledge. Parents often remove their families to a place with good school or educational facilities, the chief reason actuating them being the quality of the teachers, and not the mere inanimate advantages. Can it be fairly claimed that a district equipped with all necessities and conveniences in respect of buildings and appliances and apparatus for teaching, but lacking adequate instructors, has sufficient school facilities? The labor performed by the teacher is assistance and valuable aid. It renders the acquisition of knowledge by the pupils more easy, and is a facility. Teachers are means of imparting knowledge to pupils, and are therefore educational facilities. We are inclined to the opinion that the legislature intended to include teachers and their services within the meaning of the phrase ‘additional school facilities.’ ”

Nekoosha-Edwards Paper Co. v. Minneapolis, St. P. & S. S. M. Ry. Co., 217 Wis. 426, 259 N.W. 618, 620, held that a railroad was permitted to pay a rental for facilities owned by a shipper including the services .of the switching crew; that the term “facilities” as used in the statute “included a switch engine and the service of a crew”, and that the meaning was not changed by an amendment which prohibited a railroad from paying an industry for performing any part of the service incident to the origination or determination of carload shipments which the railroads had assumed to perform under the provisions of the bill of lading. In Commonwealth ex rel. Hensel v. Sturtevant, 182 Pa. 323, 37 A. 916, a ferry franchise required the operator to “furnish needful facilities for ferrying” foot passengers over a river, and one of the allegations of violation was that “the employes in charge of the ferry are and have been inexperienced, incapable, and negligent”.

In People ex rel. Schlaeger v. Bunge Bros. Coal Co., 392 Ill. 153, 64 N.E.2d 365, 370, the Supreme Court of Illinois stated: “The word 'facilities’ is not a technical word but one in common use, and its meaning is to be. found in the sense attached to it by approved usage. Standard lexicographers give ‘aid,’ ‘assistance,’ and ‘help’ as synonyms or equivalents of ‘facility.’ Thus books, maps, globes and charts are facilities to the imparting of knowledge. The meaning of the word is not, however, limited to inanimate bodies or things. A school with a complement of pupils in every room, but lacking teachers, would certainly not have facilities to carry on educational work. Without a crew to man his vessel, the captain of a ship would not have the necessary facilities to enable the ship to sail.” To the same effect see 35 C.J.S. Facility, p. 488. Hartford Electric Light Co. v. Federal Power Commission, 2 Cir., 131 F.2d 953, 961, characterized the term as used in the Federal Power Act in this manner: “It should be noted that the word ‘facilities’ is generally regarded as a widely inclusive term, embracing anything which aids or makes easier the performance of the activities involved in the business of a person or corporation.”

"The plaintiff urgés that the rule of ejusdem generis applies, citing Hammett v. Kansas City, 351 Mo. 192, 173 S.W.2d 70, 75[8, 9], and that the general words must be restricted to the particular classes or things enumerated. The Hammett case recognizes, however, that the purpose of the doctrine or rule of ejusdem generis is to ascertain the intention of the lawmaker. Moreover, the rule is an aid to construction and not a positive rule of law and never overrides an intention that is clear. Obetz v. Boatmen’s National Bank of St. Louis, 361 Mo. 221, 234 S.W.2d 618, 623[14]. See also State v. Smith, 233 Mo. 242, 135 S.W. 465, 468, 33 L.R.A., N.S., 179, and 50 Am.Jur., Statutes, § 250, p. 246. In Briggs Mfg. Co. v. United States, 2 Cir., 30 F.2d 962, 964, the court declined to apply the rule of ejusdem generis in construing a text that contained the term “facility”. The rule does not appear to be preclusive or deteminative in the present situation.

Section 211.011 provides that the Juvenile Court Code, §§ 211.011 to 211.431, “shall be liberaly construed” to the end that the child “shall receive such care, guidance and control, * * * as will conduce to the child’s welfare and the best interests of the state * * Section 211.031 among other things provides that the juvenile court shall have exclusive original jurisdiction in proceedings involving any child within the county “who is alleged to be in need of care and treatment” because the parents or others “neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his well-being” or because the “behavior, environment or associations of the child are injurious to his welfare or to the welfare of others”. Section 211.171 provides that the juvenile court judge may take testimony and inquire into the habits, surroundings, conditions and tendencies of the child so as to enable the court to render such judgment or order as will best promote the Welfare of the child and carry out the 'objectives of §§ 211.011 to 211.431.

Chapter 211 enacted in 1957 emphasizes the diagnosis and the care and treatment of disturbed and neglected children. It indicates an enlightened approach to present-day juvenile problems. Section 211.401 requires the juvenile officer to make investigations and reports and to perform other duties “under the direction of the juvenile court”. It appears that the general assembly knew of the magnitude of the problems of administration in a place such as the City of St. Louis where there are more than 5,000 referrals a year and 70 to 80 employees to direct and supervise. Judge McMullan testified that before the position of administrative assistant was established juvenile officers were coming in to see him all the time and would line up outside his door. The juvenile judge •could not be expected to handle this burden of administrative problems and also perform his other duties adequately. The general assembly could not foresee and spell •out the means or facility best suited to the administration of the Act in each county or class of counties, but the statutes indicate a purpose to provide the courts and counties with ample authority to cope with local situations and to make the Act effective.

Subd. 3 of § 211.161 is concerned with providing “proper services for the court in the diagnosis and treatment of children”; to accomplish this purpose it authorizes the establishment of “medical, psychiatric and other facilities”. This is consistent with the dominant thought of diagnosis, care and treatment that runs throughout the chapter. The office or position of administrative assistant is not alien to medical or psychiatric facilities. The court or some qualified person for him must determine in each case whether an examination should be given. Regardless of whether the decision is to examine or not, the determination must be made and is important. Furthermore, the function of the administrative assistant is germane to the entire statutory purpose of diagnosis, care and treatment.

Section 211.011 admonishes us that the Juvenile Code consisting of §§ 211.011 to 211.431 “shall be liberally construed” to the end that the children affected shall receive such care, guidance and control as will conduce to the welfare of the child and the best interests of the state. The evidence identifies and describes the function of the office of administrative assistant and tangible things such as manuals, programs and directives that will be developed and maintained to facilitate the work of the court and its staff. Webster’s Third New International Dictionary gives this definition of “facility” among others: “5 a: something that promotes the ease of any action, operation, transaction, or course of conduct — usu. used in pi. (excellent facilities for graduate study)”. This court has not previously passed on the question of whether such an office or position can properly be said to be a “facility”. We are persuaded, however, by the cases cited from other jurisdictions and the mandate of a liberal construction of Chapter 211 that the word “facility” as used here is not limited in its meaning to inanimate objects but may include the services of a person or persons as well.

We hold and declare that the establishment of the office or position of administrative assistant in the Juvenile Division of the Circuit Court of the City of St. Louis is authorized by law in that it is within the meaning of the term “other facilities” as used in § 211.161, subd. 3. If the general assembly had intended the narrow construction for which the plaintiff contends, it could have accomplished its purpose by using more restricted terms in both sentences constituting subd. 3 of § 211.161, and we are not referriing solely to the words “other facilities”. Moreover, it could have omitted or limited the statutory mandate to construe it liberally. The administrative assistant’s function, to the extent that it renders the work of medical, psychiatric and psychological facilities more effective, is important; but under the broad grant of power his services need not be limited to them. They may include the whole field of “proper services for the court in the diagnosis and treatment of children coming before it”.

Furthermore, under § 211.161, subd. 3, the juvenile court is authorized to appoint the administrative assistant and to fix his salary. This statutory authority renders nugatory the contention that the expenditures are not authorized under the city charter. Other contentions made by the plaintiff are disposed of by our decision that the state law authorizes the establishment of the office of administrative assistant and the appointment of a person to fill the position and to fix his compensation. It is further unnecessary to consider other contentions made by the defendants.

The judgment is affirmed.

All concur except EAGER, J., who concurs in result, believing that § 211.351, RS Mo 1959, is sufficient to authorize the appointment.


author: EAGER, Presiding Judge.

text:
    Thomas A. MATHEWS, Executor of the Estate of Martha Jane White, deceased, Appellant, v. Esther PRATT and Hughes Pratt, Respondents.
    No. 49482.
    Supreme Court of Missouri, Division No. 2.
    May 13, 1963.

      Roberts & Roberts, by Raymond R. Roberts, Farmington, for appellant.
    McClintock & Medley, by E. L. McClin-tock, Jr., Flat River, for respondents.
   EAGER, Presiding Judge.

This is an appeal from an order dismissing plaintiff’s petition; since the dismissal was not stated to be without prejudice, it constituted a final judgment. Section 510.150. (All statutory citations are to RSMo 1959, V.A.M.S., unless otherwise stated.) The stated grounds of the order were that the “petition fails to state a cause of action and because plaintiff has an adequate remedy at law.” It is plaintiff’s (appellant’s) position that the suit is one in equity, that it states facts entitling plaintiff to a decree declaring and enforcing a trust, and that plaintiff had and has no adequate remedy at law, — more specifically in the Probate Court by a proceeding for the discovery of assets. Sections 473.340-473.350. It is defendants’ (respondents’) position that the exclusive remedy of plaintiff lay in the Probate Court in a proceeding for the discovery of assets, that this is not “a purely equitable matter,” and that the Circuit Court was without jurisdiction. While other questions were raised in the motion, the issues here are strictly limited by the briefs and the oral argument.

The petition, reduced to its essentials, alleged in substance: that plaintiff is the Executor of Martha J. White, deceased; that Martha’s will (we shall so designate her for brevity) after two specific bequests, bequeathed the residue of her estate to four nieces and nephews, including defendant Esther Pratt, share and share alike; that prior to August 22, 1946, Martha opened a checking account, in November 1955 she opened a savings account, and prior to January 10, 1961, she opened another savings account; that at certain times after the respective accounts were so opened the name of Esther Pratt “was added to” the several respective accounts “as a co-depositor” ; that the same procedure was followed in another savings account which had previously stood in the joint names of Martha and another, after the death of the other; that these four accounts were in three separate banks or savings institutions; that all the monies so deposited belonged exclusively. to Martha and were deposited by her; that at the time (times) when the name of Esther Pratt was so added to these respective accounts, Martha was old and infirm, and was unable to go about, pay her bills or write checks; that when the name of Esther was so added, this was done “for the sole purpose of enabling Esther Pratt * * * to write checks * * * and pay the bills of Martha * * and “with the understanding and agreement“ between Martha and Esther that funds would not be drawn from said account(s) except to pay Martha’s bills, and that, in the event of Martha’s death, Esther would pay the said funds as provided in Martha’s will; that Esther was not to have said funds as her own, and that her name was so added only after she had specifically agreed to hold said funds for the benefit of the beneficiaries named in the will; that Esther knew that her name would not otherwise have been “added”; that the defendants, Esther and her husband, did so agree fraudulently and with intent to deceive, and thus led Martha to believe, both before and after the adding of Esther’s name, that they would so hold the funds in trust; that they fraudulently told Martha not to tell her friends or relatives of the changes in the accounts; that they fraudulently told the beneficiaries that Martha did not have enough money to pay her debts and obligations, and that they attempted to coerce some of the beneficiaries into paying some of the debts; that Martha relied on Esther to pay her bills and take her around, at and prior to the change in the deposits, and that a fiduciary relationship existed between them; that Esther had undue influence over Martha, and that responding thereto, Martha had implicit faith in Esther and stated that Esther would “live up to her agreement”; that Esther had fraudulently stated on numerous occasions that she would not claim any of the said funds, but that, following the death of Martha, the defendants fraudulently and with intent to convert, transferred all of the said funds (some $16,467:59) to a joint account of their own. The prayer was that the court find and adjudge that the said funds, in equity and good conscience, belonged to the estate of Martha, that a resulting trust be adjudged, that the written contract expressed in the signature cards “of the joint accounts” be cancelled, and that the court enter an order that the said money, with all accumulations, be paid over to Martha’s estate. (All italics are ours.)

“In determining if a petition states a claim or cause of action, the aver-ments of the petition are to be given a liberal construction, according the averments their reasonable and fair intendment — fair implication should be indulged from the facts stated. So considered, a petition should be held sufficient if its averments invoke substantive principles of law which entitle plaintiff to relief. A petition is not to be held insufficient merely because of a lack of definiteness or certainty in allegation or because of informality in the statement of an essential fact.” Zuber v. Clarkson Const. Co., 363 Mo. 352, 251 S.W.2d 52, loc. cit. 54; Wells v. Henry W. Kuhs Realty Co., Mo., 269 S.W.2d 761, 767, 47 A.L.R.2d 1038; Downey v. United Weatherproofing, 363 Mo. 852, 253 S.W.2d 976, 977-978. And see Section 509.250 providing that pleadings shall be so construed “as to do substantial justice.” In Swon v. Huddleston, Mo., 282 S.W.2d 18, 55 A.L.R.2d 205, we held that if the facts alleged in equity justified the court in declaring a trust on any theory, the petition should be considered sufficient, citing cases.

The parties have, by their presentation here, limited the issues rather strictly. The issue is, simply stated, should plaintiff have proceeded in the Probate Court in proceedings for the discovery of assets and, having failed to do so, does the petition here fail to state a valid cause of action, for lack of jurisdiction or otherwise? Respondent insists here that the trial court correctly ruled that plaintiff had an adequate remedy at law, while appellant asserts that the court erred in so ruling. In any event, we reach the question, — did the exclusive remedy here lie in a discovery proceeding in the Probate Court?

Discovery proceedings have long been generally regarded as actions at law, in which the jurisdiction of the probate court is exclusive. State ex rel. and to Use of Clay County State Bank et al. v. Waltner, 346 Mo. 1138, 145 S.W.2d 152; State ex rel. North St. Louis Trust Co. v. Wolfe, 343 Mo. 580, 122 S.W.2d 909; Cox v. Main, 236 Mo.App. 88, 152 S.W.2d 696; State Bank of Willow Springs v. Lillibridge, 316 Mo. 968, 293 S.W. 116; Murphy v. Mercantile Trust Co., In re Frech’s Estate, Mo., 347 S.W.2d 224. And it has likewise been held many times that where the issues in a cause of action are purely equitable and equitable relief is sought, the proper jurisdiction lies in the circuit court and that the probate courts have no power to establish, declare, enforce or execute trusts. In re Frech’s Estate, Mo., 347 S.W.2d 224; State ex rel. and to Use of Clay County State Bank et al. v. Waltner, 346 Mo. 1138, 145 S.W.2d 152; Howard’s Estate v. Howe, 344 Mo. 1245, 131 S.W.2d 517; State Bank of Willow Springs v. Lillibridge, 316 Mo. 968, 293 S.W. 116; Stark v. Moffit, Mo.App., 352 S.W.2d 165; Bante v. Bante Development Co. et al., Mo.App., 27 S.W.2d 481; Cox v. Main, 236 Mo.App. 88, 152 S.W.2d 696. Typical of such cases are instances where it was sought to establish and enforce a trust in money or specific personal property and to invalidate an apparently valid legal title, to cancel and liquidate a trust after a claimed revocation or termination, or to enforce a transfer of securities claimed to be held in trust. Most of those opinions preceded the effective date of our present Probate Code, Laws 1955, RSMo 1959, §§ 472.010 et seq., although-Freeh and Stark came later. However, even before the new Code, it would be inaccurate to say that the probate courts had no equity powers or jurisdiction. See, for instance, Lolordo v. Lacy, 337 Mo. 1097, 88 S.W.2d 353; Hoffmann v. Hoffmann’s Executor, 126 Mo. 486, 29 S.W. 603; State ex rel. Stetina v. Reynolds, 286 Mo. 120, 227 S.W. 47; Equity Jurisdiction in Probate Matters under the New Code, Leslie A. Welch, Washington University Law Quarterly, Vol. 1961, No. 4. We must now note § 472.030, RSMo 1959, V.A.M.S. (Laws 1955), which reads in part as follows: “The court has the same legal and equitable powers to effectuate its jurisdiction and to enforce its orders, judgments and decrees in probate matters as the circuit court has in other matters * * We have no occasion here to construe that section, nor shall we do so. We merely call attention to it. It was ignored in Freeh, supra, but it was discussed later in Stark. The proper time and place will come for an adequate construction of the section, but this case presents neither, for this appeal does not arise from probate action or assumed probate jurisdiction.

The contention here is that the Probate Court had jurisdiction to determine plaintiff’s claims in discovery proceedings and that such jurisdiction was exclusive. With this background, we now examine the present petition more concretely. It is ambiguous in certain respects; for instance, it refers to the fact that Esther Pratt’s name was “added” to the various accounts as a co-depositor, without setting out the forms of the new deposit agreements; and it is somewhat ambiguous as to the actual effect, if any, of the “undue influence.” Affording to the petition, however, the benefit of the liberal construction which our cases require, we hold that the allegations of the “adding” of Esther’s name to the respective accounts as a “co-depositor” may, for our present purpose, be considered as allegations that joint accounts were thus created with the usual implications. Section 362.470. This, of course, is corroborated by the factual allegation that Esther was able to, and did, withdraw all the money after Martha’s death. The petition does allege that all the money was Martha’s and that she was old and infirm; that the joint accounts were created as aforesaid; that prior to the times of the changes Esther agreed that no money would be withdrawn except to pay Martha’s bills and that she further “specifically” agreed, prior to the times of such changes, that upon Martha’s death she would hold the balance for the beneficiaries in Martha’s will and pay it as provided therein; that otherwise such changes would not have been made. The will is set out in full in the petition. Certain of the allegations are rather evidentiary as, for instance, the various remarks supposedly made by the defendants pursuant to the plan alleged. It is further alleged, however, that both before and after the changes in question the defendants “fraudulently and with the intent to deceive” and to convert the money, made the agreement to hold the funds in trust and led Martha to believe and rely upon the agreement; that a fiduciary relationship existed between Martha and the niece, that the latter “had undue influence” over Martha and (in substance) that the latter had implicit faith in Esther, “responding to such undue influence”; that defendants, after the death, fraudulently converted the money from each of the several accounts and placed it in their own joint bank account. The prayer of the petition is that a trust be adjudged (stated as a resulting trust) that the written contract expressed in the signature cards be cancelled, and that the money, with accumulations, be paid over to plaintiff.

Under the doctrine of Commerce Trust Co. v. Watts, 360 Mo. 971, 231 S.W.2d 817, the legal ownership of the accounts would ordinarily have been transferred to Esther upon Martha’s death. However, allegation and proof of a fiduciary relationship (In re Patterson’s Estate, Mo., 348 S.W.2d 6) would presumptively invalidate such a supposed gift. Regardless of that limitation, however, the allegations here bring the case within the exceptions noted in the Watts case. And see also Krummenacher v. Easton-Taylor Trust Co., Mo.App., 306 S.W.2d 593, where allegations of very similar facts were recognized as constituting an exception to the Watts rule, and as supporting a claim in equity, although the claim eventually failed for insufficiency of proof. We do not reach that problem here. We construe the present petition as a suit in equity to declare, establish and enforce a trust, as well as to cancel instruments which, upon their faces, created a legal title. The petition is in some respects a little inartistic but presumably this may be remedied upon remand. It might be well to refer again to the case of Swon v. Huddleston, Mo., 282 S.W.2d 18, 55 A.L.R.2d 205, for its definitions of the different types of trusts. While the petition does not affirmatively allege in so many words the absence of an adequate remedy at law, we think the facts alleged are sufficient for that purpose.

The allegations of Esther’s agreement are expressed in somewhat varying forms; she is alleged to have agreed that, on Martha’s death, she would hold the money “for the benefit of the beneficiaries” of the will, also “to pay out said funds in accordance with” the will, and “as provided in” the will. In one or more places it is stated that Esther agreed to so pay the funds to the beneficiaries named in the will. The beneficiaries, individually, are not parties here. We construe the substance of these allegations to be that Esther agreed to hold the funds in trust for the benefit of the beneficiaries, but through the administration process. The Executor would not be justified in knowingly permitting such funds to be paid direct to the beneficiaries of the will, thus ignoring the probate of the estate-. He represents the beneficiaries as well as all other persons interested in the estate, and he is under a primary duty to collect all money and assets due the estate. State ex rel. Lipic v. Flynn, 358 Mo. 429, 215 S.W.2d 446. He certainly qualifies here as a real party in interest. Bequests are not paid until the ordinary process of administration is completed. If plaintiff eventually succeeds, the beneficiaries will thus share the trust funds, subject to claims. In such event, the court may decree that the money .be paid to the Executor for the use and benefit of the beneficiaries named in the .will, subject to expenses and ctaimsv In oral argument counsel for respondents raised some question as to the right of the Executor to sue. We assume that they referred to the matter just discussed, and we have thus stated our views.

We hold that this is a suit in equity to establish and enforce a trust, and that the Circuit Court had inherent jurisdiction; also, that the petition properly stated a claim. It may be that the Probate Court would have the power to do the same things in a discovery proceeding under the existing Code, contrary to what has so long been declared. We do not so decide here. In such event, however, the probate jurisdiction could only be concurrent, for the inherent jurisdiction of our circuit courts to establish, declare and enforce trusts may certainly not be foreclosed by probate jurisdiction or proceedings. The petition here was erroneously dismissed.

We have examined all the cases cited in the briefs and many others. The judgment is reversed and the cause remanded for further proceedings in conformity with this opinion.

All of the Judges concur.