author: HOLMAN, Chief Justice.

text:
    STATE ex inf. Norman H. ANDERSON, Attorney General ex rel. Noah Weinstein, Judge, 21st Judicial Circuit, Relator, v. ST. LOUIS COUNTY, Missouri, Lawrence K. Roos, etc., et al., Respondents.
    No. 52890.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1967.
    Rehearing Denied Dec. 11, 1967.

      Roberts P. Elam, St. Louis, for relator.
    Joseph B. Moore, St. Louis County Counselor, Clayton, for respondents.
    Norman C. Parker, St. Louis, Counsel for the St. Louis County Charter Commission, of counsel.
    Edward E. Murphy, Jr., St. Louis, for amicus curiae.
   HOLMAN, Chief Justice.

This original proceeding in the nature of quo warranto was instituted by the Attorney General at the relation of Hon. Noah Weinstein, Judge of the Juvenile Division of the Circuit Court of St. Louis County. The respondents are St. Louis County and various officials of said county whose duties involve the budget and civil service functions of the county.

Respondent St. Louis County is a county of the first class governed by a charter duly adopted pursuant to Article VI, § 18 (all constitutional references are to the Constitution of Missouri 1945), V.A.M.S., in the year 1950. The charter provides for a County Council as the governing body of the county and it is given authority by ordinance “to designate the maximum number of assistants, deputies, clerks, and other persons who may be employed in all offices and departments of the county,” and “to designate the maximum and minimum range of compensation of all other county employees.” The charter also contained a provision for the establishment of a merit or civil service system for the appointment of all employees in certain departments of the county, including the Department of Public Welfare, and the Civil Service Commission was given authority to establish classification and compensation plans for said employees.

For many years St. Louis County has owned and maintained a Children’s Building which contains the courtroom and offices for the judge of the juvenile court and offices for all personnel employed in both the administration and detention functions of the juvenile court. The building also contains living quarters, school rooms, and other facilities for the accomo-dation of an average child population of 32. The charter placed control of the Children’s Building under the Welfare Commissioner, and since the adoption of the charter the employees of that building have been employed and paid under the merit system. On November 8, 1966, a charter amendment was adopted which, with certain exceptions not here relevant, provided that “the merit system is hereby extended to all other employees of the county.”

St. Louis County has 15 divisions of circuit court, and Division No. 3 has been designated as the Juvenile Division of which relator is the judge. The juvenile court supervises a large volume of work, there having been a total of 7,396 referrals in the year 1966. There have been employed in carrying on the work of the juvenile court a juvenile officer who is also director of court services and commissioner of the welfare department. There are 73 other persons engaged in that work, 48 of whom were appointed by relator or his predecessors in office, who are engaged in administrative functions, and there are 25 employees who are associated with the detention functions of the court. The salaries of all of these employees are paid out of the general revenue fund of the county, except a statutory allowance of $4,250 which the state contributes to the salary of the juvenile officer.

In the fall of 1966 relator, as judge of the juvenile court, prepared and submitted to the budget officials of the county estimates for the requirements of the juvenile court for the year 1967. His requests totaled $1,130,044, of which $833,176 was for juvenile court administration, and $296,868 for maintenance and operation of the detention facilities. Reductions were made in these estimates by the budget officer and upon submission to the County Council the amount approved for the juvenile court was $639,892 for administration, and $219,907 for the detention facilities. It will be noted that more than $190,000 was deleted from the estimates of the juvenile court for administration, and more than $80,000 was deleted from the estimates for the detention facilities. One of the principal items deleted from the administration estimates was an amount for the salaries of 18 additional employees in that department. Likewise, a large item deleted from the detention estimate was an amount for the salaries of eight additional employees in that department. Also, the salaries of some 34 persons in the administration department had been increased by relator and the amounts of said increases were not allowed by the budget officer. None of the 25 persons serving in the detention department were given increases by relator, but all of those were given a 5% increase in salary by respondents, which increases were not authorized or consented to by relator.

The budget estimates of relator for the juvenile division were approved by the Circuit Court en Banc prior to submission to the budget officer. On December 20, 1966, a certified copy of the order of the circuit court increasing the salaries here involved was delivered to the County Supervisor and various other county officials. Thereafter, the budget director advised relator that all juvenile court personnel was under the merit system by virtue of the charter amendment adopted November 8, 1966, and that accordingly “all salary adjustments must be approved by the Civil Service Commission.” On November 9, 1966, the Civil Service Commission had adopted a resolution which purported to assume jurisdiction over all county employees to whom the merit system was extended by the aforementioned charter amendment, and said commission had advised relator that all employees of the juvenile court were under the merit system and that said commission had the responsibility to control all phases of personnel administration regarding those employees.

There are a number of issues presented by the pleadings in this case. It is the primary contention of the relator that under certain provisions of the County Budget Law and of the Juvenile Code the Juvenile Court of St. Louis County has the authority to employ, discharge, and fix the salary of the employees of the juvenile court, and that neither the budget officer nor the County Council has any authority to change the budget estimates of the juvenile division of the circuit court without its consent. In his brief he states the question as follows: “There is squarely presented in this case the issue of whether the County Budget Law and the Juvenile Code are applicable to St. Louis County, or whether, because of the status of that County as a so-called ‘Special Charter County’ under Article VI, Section 18 of the Constitution of Missouri 1945, those statutes are inapplicable to such County.”

In general it is the contention of respondents that, as relates to the issues here presented, neither the County Budget Law nor the Juvenile Code applies to St. Louis County so as to permit the juvenile judge to “hire, fire and set the pay of county administrative employees”; that the inherent power of the circuit court to do the things necessary to preserve its functions does not extend to expenditures for personnel involved in juvenile administration; that personnel engaged in performing administrative and detention functions of the juvenile court are county employees and subject to the county’s merit system, and that if the County Budget Law and the Juvenile Code are construed in the manner giving relator the authority he seeks they are unconstitutional in contravention of Article VI, § 18, respecting charter counties, and Article II, § 1, which provides for the separation of powers.

Section 50.640 (all statutory references are to RSMo 1959, V.A.M.S.), which applies to class one and two counties, contains the following: “ * * * The estimates of the circuit court, including all activities thereof and of the circuit clerk, shall be transmitted to the budget officer by the circuit clerk. The estimates of the circuit clerk shall bear the approval of the circuit court. The budget officer or the county court shall not change the estimates of the circuit court or of the circuit clerk without the consent of the circuit court or the circuit clerk, respectively, but shall appropriate in the appropriation order the amounts estimated as originally submitted or as changed, with their consent.” Apropos thereto is Section 72 of the St. Louis County Charter which provides that “[njothing in this Charter shall be interpreted as giving the Council authority to change the provisions of law relating to the determination of the budget and number of employees of the Circuit Court and Circuit Clerk.” We think it is quite clear that § 50.640 is applicable to St. Louis County. We find no specific provision of the charter which would preclude its application, and the quoted portion of § 72 plainly provides that the Council shall not be authorized to change the law in that regard.

It is our further view that the budget estimates of the circuit court referred to in § 50.640 shall be construed to include expenses for all the various- activities of the juvenile division thereof. The actual trial sessions of the juvenile court are perhaps a small part of the services performed under the supervision of that court. Chapter 211 contains detailed provisions for the diagnosis, care and treatment of disturbed and neglected children. A large staff of deputy juvenile officers, caseworkers, investigators, and medical and psychiatric consultants are required in order to furnish the judge with facts and recommendations relating to each of the thousands of children referred to the juvenile court of St. Louis County each year. It seems clear that the court could not function effectively without the staff which works under its direction. It is also significant that § 50.640 contains the words “circuit court, including all activities thereof.”

We think there is, however, one restriction which should he considered implicit in the construction of § 50.640. That is that no change may be made in regard to lawful budget estimates. As indicated in the case of State ex rel. Hill v. Thatcher, 230 Mo.App. 1125, 94 S.W.2d 1053, changes should be permitted where the salary estimates, for example, are computed on a basis in excess of the lawful salary provided for the position or where there is no authority in law for expenditures that may be contained in the budget.

We will now consider the applicability of the Juvenile Code to St. Louis County. Although we have had various juvenile laws for many years, the present “Juvenile Act,” adopted in 1957, greatly extended the scope of those laws. We are here particularly concerned with certain sections of that Act which deal with the appointment and compensation of juvenile court personnel. Section 211.161 provides that “[t]he 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.” Section 211.331 states that counties of the first class shall provide a place of detention for children coming within the provisions of certain sections of the Act which “shall be in charge of a superintendent. The judge of the juvenile court shall appoint and fix the compensation and maintenance of the superintendent and of any assistants or other personnel required to operate the detention facility. Such compensation and maintenance are payable out of funds of the county.” It is provided in § 211.351 that “[t]he juvenile court shall appoint a juvenile officer and other necessary juvenile court personnel to serve under the direction of the court in each county of the first and second class * * *.” Section 211.381 contains salary limits for the juvenile officer, four deputy juvenile officers, secretaries, stenographers, clerks and typists in first class counties, and § 211.393(1) reads as follows: “The salaries and expenses of all juvenile court personnel in counties of the first and second class and the city of St. Louis are payable monthly out of county or city funds as the case may be, except that one-half of the salary of the juvenile officer of any circuit in which he is engaged full time, is payable by the state of Missouri, but not to exceed the sum of four thousand two hundred and fifty dollars annually.” It will be noted that there is no specific statutory provision for fixing the salary of the juvenile court personnel appointed under the provisions of § 211.351. The salaries are not fixed in § 211.381 as that section merely provides that salaries of the employees therein designated shall not exceed the amounts therein stated.

In determining the extent to which the aforementioned sections of the Juvenile Code are applicable to St. Louis County it is necessary to consider the following constitutional provisions: Article VI, § 18(b). “The charter shall provide for its amendment, for the form of the county government, the number, kinds, manner of selection, terms of office and salaries of the county officers, and for the exercise of all powers and duties of counties and county officers prescribed by the constitution and laws of the state.” Section 18(e). “Laws shall be enacted providing for free and open elections in such counties, and laws may be enacted providing the number and salaries of the judicial officers therein as provided by this constitution and by law, but no law shall provide for any other office or employee of the county or fix the salary of any of its officers or employees.” We should also have in mind the provision of the charter to the effect that “[njothing in this Charter shall be interpreted as giving the Council authority to change the provisions of law relating to the determination of the budget and number of employees of the Circuit Court and Circuit Clerk.”

We have said that “St. Louis County, re-gardlesss of its charter, remains a legal subdivision of the state. Art. VI, §§ 1 and 18(a). As such, it is charged with the performance of the state functions just as other counties are. * * * A charter county differs from others chiefly in the form of county government which it may adopt. The charter must provide for the structure of county government and shall provide for 'the number, kinds, manner of selection, terms of office and salaries of the county officers.’ Section 18(b), supra. In fact, the General Assembly is prohibited from providing for any office or employee of the county or fixing the salary of any of its officers or employees other than election and judicial offices and officers. Section 18(e), supra. This is an express limitation on the legislative power.” State on inf. of Dalton ex rel. Shepley v. Gamble, 365 Mo. 215, 280 S.W.2d 656, 659, 660. And, “in matters which are governmental functions, the state retains control and, as to such matters, the provisions of a city charter, although adopted under the constitutional provision therefor, must be and remain consistent with and subject to the statutes of the state enacted by the Legislature.” Kansas City, Mo. v. J. I. Case Threshing Machine Co., 337 Mo. 913, 87 S.W.2d 195, 202. It is often very difficult to determine the border line between governmental functions and corporate functions relating to the county government.

In considering the question before us we have been impressed by the construction placed upon the applicable constitutional, statutory, and charter provisions by both the Juvenile Division of the Circuit Court of St. Louis County and the County Council. In that connection we refer to the established rule that the interpretation of an ambiguous constitutional or statutory provision by legislative bodies and by administrative, executive, and other public officials will be given serious consideration in determining the meaning thereof. See Rathjen v. Reorganized School District R-II, 365 Mo. 518, 284 S.W.2d 516, and State ex rel. Curators of University of Missouri v. Neill, Mo.Sup., 397 S.W.2d 666 [3]. Section 211.331 was enacted in 1957. It gave the juvenile judge the power to ap point the personnel of the detention facility and to fix the compensation of said employees. Ten years passed and the juvenile court did not (until the filing of this suit) assert any right to appoint and fix the compensation of said employees and they have been appointed and paid under the provisions of the merit system in accordance with the provisions of the charter and ordinance which place them thereunder. As we have heretofore noted, § 211.381 provides salary limits for various employees appointed by the juvenile court. It is obvious from the record that both the Juvenile Court and the County Council have fixed salaries which exceed the limitations specified in that section. It is apparent that salaries for administrative personnel have been fixed by the court in accordance with the grades and within the ranges provided by Chapter 201 of the county ordinances applicable to patronage employees. Salaries approved by the County Council have been based on county ordinances and have also exceeded the limits provided in § 211.381.

It is obvious from the foregoing that the relator and the respondents have not construed the constitutional provisions as requiring that the statutes, supra, be controlling over the county ordinances in regard to the appointment of a part of the juvenile court personnel and in fixing the compensation of all of the personnel of that court.

In considering the questions here presented we should also have in mind the general rule that “[t]he courts have the inherent power and authority to incur and order paid all such expenses as are (reasonably) necessary for the holding of court and the administration of the duties of courts of justice.” State ex rel. Gentry v. Becker, 351 Mo. 769, 174 S.W.2d 181, 183.

We have considered all of the constitutional, statutory and charter provisions heretofore mentioned and have reached the following conclusions: In general, the provisions of the Juvenile Act (Chap. 211) relate to state functions and are applicable to St. Louis County. It is obviously the policy of the state as shown by various sections of Chapter 211, as well as within the inherent powers of the court, that such employees as are reasonably necessary to carry out its functions shall be provided for the juvenile court. However, we think the personnel provided for the assistance of the juvenile court are not judicial officers within the meaning of Art. VI, § 18(e), but are employees of the county. Hasting v. Jasper County, 314 Mo. 144, 282 S.W. 700. We therefore hold that the Juvenile Division of the Circuit Court of St. Louis County may, by order, provide for such additional personnel (in either the administration or detention departments) as may be reasonably necessary to properly carry on the functions of that court; that amounts may be placed in the budget of said court for the compensation of said additional employees within the limitation of the applicable ordinances, and said estimates shall not be changed by the budget officer or the County Council without the consent of said court; that the employees so provided for shall be expeditiously employed and their salaries fixed in accordance with the charter, rules, and ordinances applicable to the civil service commission and the merit system; that the present employees serving the juvenile court are subject to the merit system and their salaries shall be fixed in accordance therewith and the estimates placed in the budget for said employees shall be in harmony with the salaries so fixed.

Since we have held that relator does not have authority to fix the salaries of juvenile court personnel we deem it unnecessary to consider the respondent’s point that the statutes involved are unconstitutional as violative of Art. II, § 1, which provides for the separation of powers.

It is ordered and adjudged that respondents are hereby ousted from changing the estimates (with the exceptions noted herein) of the Juvenile Court of St. Louis County as contained in the annual budget, without the consent of said court.

The costs of this proceeding are taxed against respondents.

All concur.


source: Caselaw Access Project

author: FINCH, Judge. STORCKMAN, Judge.

license: Public Domain

text:
    Carrie BROWN, Plaintiff-Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, Defendant-Respondent.
    No. 52968.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1967.
    Rehearing Denied Dec. 11, 1967.

      William R. Hirsch, Clayton, for appellant.
    George A. Adolf, St. Louis, for respondent.
   FINCH, Judge.

Plaintiff’s personal injury action resulted in a verdict in her favor for $5,000. Defendant’s motion for new trial contained numerous assignments of error, but the trial court granted a new trial on the single ground that

“ * * * the word ‘direct’ before the word ‘result’ in the second last line of MAI No. 4.01 is left out in Instruction No. 6.” The court order then stated: “Said omission of said word allowed the jury to award sums to plaintiff for damages she sustained even though they were not sustained and would not be sustained in the future as a ‘direct result of the occurrence mentioned in the evidence.’ ”

From that action, plaintiff appealed to the St. Louis Court of Appeals, which reversed and remanded with directions to reinstate the verdict and judgment in favor of plaintiff. On application, we ordered the case transferred. We now decide it as though it were an original appeal to this court.

Instruction No. 6 was as follows:

“If you find the issues in favor of plaintiff, Carrie Brown, then you must award the plaintiff such sum as you believe will fairly and justly compensate the plaintiff, Carrie Brown, for any damages you believe she sustained and is reasonably certain to sustain in the future as a result of the occurrence mentioned in the evidence.”

Instruction No. 6 conformed to MAI 4.01 in all respects other than the omission of the word “direct” immediately preceding the word “result.”

Supreme Court Rule 70.01, V.A.M.R. provides, in part, as follows:

“(b) Whenever Missouri Approved Instructions contains an instruction applicable in a particular case which the appropriate party requests or the court desires to submit, such instruction shall be given to the exclusion of any other on the same subject.
“(c) The giving of an instruction in violation of the provisions of this rule shall constitute error, its prejudicial effect to be judicially determined.”

It was mandatory under Rule 70.-01(b) that MAI 4.01 be given in this case without modification. Since Instruction No. 6 did deviate from 4.01, the giving of No. 6 was error under the provisions of Rule 70.01(c), its prejudicial effect to be judicially determined. The trial court, having done that, awarded a new trial. We concur in that determination. The deletion of the word “direct” as a modifier of “result” changes the meaning of the instruction. Damages sustained as a result of an occurrence would include all such damages, whether resulting directly or indirectly. Only if the word “direct” is kept in the instruction is the jury told that the damages which it may award must be the direct result of the occurrence. The word “direct” adds a limiting factor not otherwise included.

This court, by its adoption of Missouri Approved Instructions, promulgated precise approved instructions. These had been drafted after much research and great effort on the part of the court’s special committee and its able reporter, the late Professor John S. Divilbiss. A preliminary draft was distributed and suggestions were received from the bench and bar before final adoption. The system was devised to eliminate the old system of complex, detailed and frequently argumentative instructions which caused great difficulty for jurors, lawyers and judges, and resulted in a high percentage of reversals on account of instructions given or refused. The special committee carefully considered the precise words to use in each approved instruction in order to provide simple, concise and understandable instructions. Directions as to the format to be followed were given to cover those instances where no MAI instruction is provided or where the facts of a case require modification of an MAI instruction. When an MAI instruction is applicable, its use is mandatory.

Plaintiff urges that to grant a new trial for omission of the word “direct” in the damage instruction is highly technical and makes form govern over substance. It must be recognized, however, that a system of instruction such as MAI is inherently standardized and inflexible. If this court is to make this system work, and preserve its integrity and very existence, we must insist that mandatory directions be followed and that the pattern instructions be used as written. Otherwise, as we quoted the special committee’s report in our opinions in Motsinger v. Queen City Casket Co., Mo., 408 S.W.2d 857, 860, and Hunter v. Norton, Mo., 412 S.W.2d 163, 166: * * If counsel are permitted to “improve” the approved instructions, even within the confines of specific precedents, the value of these instructions will be lost. Each such “improvement” by one counsel will prompt an offsetting “improvement” by his opponent and after a while the court will not be able to find the original with a divining rod.’ ”

In spite of the directions in MAI and the comments of the special committee in submitting its report, we have observed frequent deviations and “improvements” in instructions given in cases reaching the appellate courts. In Hunter v. Norton, supra, for example, plaintiff gave an instruction which was a modification of MAI 17.02. Plaintiff substituted the words “allowed a portion of the car she was driving to extend over onto the left or northbound traffic lane of said Highway 61” for “drove on the wrong side of the road.” It was contended that the language used was in accordance with the facts and that defendant could not have been prejudiced by the modification. This court held the instruction to be prejudicially erroneous. It was objectionable for additional reasons, but this variation alone was sufficient to require reversal. See also Motsinger v. Queen City Casket Co., supra, for another instance of elimination and substitution of words in an MAI instruction.

In the case of Foote v. Thompson, Mo.App., 407 S.W.2d 637, decided by the Kansas City Court of Appeals before the Motsinger and Hunter cases were handed down by this court, MAI 17.15 was modified by substituting “imminent danger” for “immediate danger.” The substitution of the terms was held to be harmless error on the basis that the words “imminent” and “immediate” have the same meaning. Such substitution would not be permissible under the views herein expressed. It is not difficult to visualize what would happen if we should adopt a policy of approving the substitution of synonyms in MAI instructions. For example, Webster’s Third International Dictionary lists “consequence,” “effect,” and “outcome” as synonyms of “result.” If the synonyms were substituted in MAI 4.01, we would have the jury being told in some cases to assess damages which are the “direct result” of the occurrence and in other cases being told to assess damages which are either the “direct consequence,” “direct outcome,” or “direct effect” of the occurrence. If, as plaintiff contends, we should approve elimination of the word “direct” herein, such damage instruction then would direct the jury to assess damages which they found to be either the “result,” “consequence,” “outcome,” or “effect” of the occurrence. Such variations would constitute error under Rule 70.01(c), but if held to be nonprejudicial on the basis that the words are synonyms and convey the same meaning, the number of potential variations in all MAI instructions would be limited only by the number of synonyms available.

Other illustrations of the effect of a failure to insist on compliance with mandatory directions in MAI are readily apparent. MAI 1.02 prohibits submission of dual or multiple theories of recovery or defense in the conjunctive. Under the old system of instruction, many cases can be found which held that it was not error to instruct in the conjunctive, even if there was no evidence to support one such theory of recovery or defense. This conclusion was based on the view that the conjunctive simply imposed an additional burden on the party submitting that instruction and was harmless error. If, based on that philosophy and relying on those old cases, this court should not insist on compliance with MAI 1.02 and should hold that submission of theories of recovery in the conjunctive, although error, is not prejudicial, that part of MAI immediately would become a meaningless suggestion rather than a mandatory directive.

Still another illustration is found in connection with converse instructions. MAI 29.01 states that a defendant is entitled to a converse of plaintiff’s verdict-directing instruction, and “Notes on Use” following MAI 29.02, 29.03 and 29.04 state that “defendant may give only one converse for each verdict directing instruction.” The case of Murphy v. Land, Mo., 420 S.W.2d 505, handed down concurrently herewith by Division No. 1, presents a case in which multiple converse instructions were given. It was claimed therein that the error, if any, was harmless. Division No. 1 holds that the multiple converse instructions were erroneous and points out that the direction to give only one converse for a verdict-directing instruction is a mandatory direction and must be enforced. The aim and purpose of MAI will not be served if, in violation of these specific directions, multiple converse instructions may be given, and this court then made to search the record and in some way ascertain whether the jury verdict was thereby affected and plaintiff prejudiced.

Counsel for plaintiff argues that affirmance herein means that this court would hold an instruction prejudicially erroneous for misspelled words or misplaced punctuation. This does not follow. See Johnson v. West, Mo., 416 S.W.2d 162. Such an instance is not comparable, however, to editing an instruction by substituting, adding or deleting words or phrases.

It is our understanding that the bench and bar generally approve of MAI, have found it to be a distinct improvement over the old system of instructions and desire its continuation. We have confidence that the lawyers can and will utilize the system as it is intended. We have written at some length on the subject because we feel that, in fairness to bench and bar, we should make it crystal clear that “To accomplish the purpose for which the forms were prepared, the courts must insist that they be utilized.” Motsinger v. Queen City Casket Co., supra, 408 S.W.2d l. c. 860.

Accordingly, where there is deviation from an applicable MAI instruction which does not need modification under the facts in the particular case, prejudicial error will be presumed unless it is made perfectly clear by the proponent of the instruction that no prejudice could have resulted from such deviation.

Plaintiff has not so established in this case. She says that there was no evidence of any other occurrence which might have produced the injuries and damages complained of, and that the jury could not have found anything but direct damages. This is disputed by defendant, but, regardless of the dispute, such argument does not establish that the instruction is not prejudicially erroneous. Our rule has been that it is prejudicial error to instruct a jury on damages for injuries of which there is no evidence. In Pender v. Foeste, Mo., 329 S.W.2d 656, it was held to be prejudicially erroneous to authorize assessment of damages for permanent injuries when, in fact, the only medical evidence was that there were no permanent injuries. Here, Instruction No. 6, as a result of the deletion of the word “direct,” would include all damages, both direct and indirect. The fact, if it be a fact, that there was no evidence of indirect damages is comparable to the absence of proof of permanent injuries in Pender v. Foeste, supra. It is error to instruct on injuries of which there is no evidence.

Likewise, we overrule plaintiff’s contention that the absence of the word “direct” in Instruction No. 6 is harmless error in view of the fact that Instruction No. 2, which was plaintiff’s verdict-directing instruction, required the jury to find that plaintiff sustained damages as a direct result of defendant’s negligence. In effect, a conflict between Instruction No. 2 and Instruction No. 6 was created. See Hunter v. Norton, supra, 412 S.W.2d l. c. 166 [10], wherein it was held that the fact that plaintiff added MAI 7.02 to his damage instruction (MAI 4.01) did not excuse the failure on the part of the plaintiff to add to his verdict-directing instruction the words set out in the “Notes on Use” following MAI 7.01. It was held that this failure created an inconsistency between Instructions 2 and 5, even though Instruction 5 told the jury that they must deduct the sum of $4500 which plaintiff had been paid by another party.

Finally, plaintiff claims that defendant should be estopped from complaining of the error in the instruction on the basis that defendant’s counsel failed to call the omission to the attention of the court and counsel at the conference on instructions held pursuant to Rule 70.01 (a). This contention is based on the fact that defendant first offered a converse instruction in which, among other things, the jury was told that their verdict must be for the defendant if they did not believe that plaintiff sustained damage as a direct result of the occurrence, and then withdrew that instruction and offered a converse in which the language was changed and the jury was told that their verdict must be for the defendant “if you do not believe that plaintiff sustained damage.” We are of the opinion that this does not provide a basis for us to excuse the error in plaintiff’s instruction or to apply estoppel against the defendant, and the contention is overruled.

The action of the trial court in granting a new trial is affirmed and the cause remanded for trial.

All concur except STORCKMAN, J.r who concurs in result in separate concurring opinion filed.

OPINION CONCURRING IN RESULT

STORCKMAN, Judge.

I concur in the result because a new trial was granted by the trial court and our appellate courts are more inclined to affirm the grant of a new trial by the trial court than to grant a new trial where one has been denied by ’ the lower court. I would accept a holding that the trial court is in a better position to discern prejudicial error in the record by reason of the omission of “direct” before “result”; however, I have not been able to determine that the error is prejudicial from my examination of the instructions in the context of the evidence. If counsel for the parties and the court did not detect the omission when the instruction was given, it is not likely that the jury was mislead.

The fault I find with the opinion is that it appears to go beyond the rule in strictness. S.Ct. Rule 70.01(c) says the prejudicial effect of an error arising out of a departure from an approved instruction will “be judicially determined”, while the opinion states that “prejudicial error will be presumed” unless it is made perfectly clear that no prejudice could have-resulted.

The laudable purpose of Missouri Approved Instructions should not lead us back to the strict, unreasonable and sometimes absurd practice that existed in the days of common-law pleading which has been corrected by Statute of Jeofails in the criminal law (§ 545.030, RSMo 1959, and S.Ct. Rule 24.11) and by the present rules of practice and procedure in the civil field.


author: DONNELLY, Judge.

text:
    Joseph Henry PYLES, Jr., a Minor, Respondent, v. Michael Philip ROTH, Defendant, and James McDowell Dawkins, Appellant.
    No. 52346.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.
    Motion to Modify Opinion or for Rehearing or to Transfer to Court En Banc Denied Dec. 11, 1967.
    Dales Reesman, Boonville, for respondent.
    William H. Sanders, Dean F. Arnold, David C. Trowbridge, Kansas City, foi appellant Dawkins, Blackwell, Sanders, Ma-theny, Weary & Lombardi, Kansas City, of counsel.
   DONNELLY, Judge.

In this jury-tried action for damages resulting from a vehicular collision in Cole County, Missouri, which occurred at approximately 5:55 p.m. on August 18, 1963, plaintiff, Joseph Henry Pyles, Jr., received a verdict in the amount of $20,000 against defendants Michael Roth and James Daw-kins. Dawkins appealed.

The collision causing plaintiff’s injuries occurred on Missouri State Highway No. 179, which extends generally east and west, and involved vehicles driven by Michael Roth, Kenneth Murphy, Ronald Buster, and James Dawkins.

Roth was traveling in a westerly direction. Pyles was a passenger in the Roth car. Murphy, Buster, and Dawkins were traveling in an easterly direction with Murphy in front, Buster following Murphy at an undetermined distance, and Dawkins following Buster. Roth testified that Murphy forced his car off onto the north shoulder. Murphy denied this. In any event, the right rear wheel of the Roth car went off the highway into the gravel on the north shoulder, the car went out of control, skidded down the highway sideways, across the center line, and collided with the Buster car in the south half of the highway. The Buster car was thrown into the south ditch and the Roth and Dawkins cars then collided head-on in the south half of the highway at a point eleven feet west of the point where the Roth aind Buster cars collided. The second collision immediately followed the first collision. At the scene, Roth thought he was struck twice by the Buster car.

When the right rear wheel of the Roth car hit the gravel shoulder the Roth and Dawkins cars were seven hundred to eight hundred feet apart, Dawkins’ speed was SO to 55 miles per hour, and he was following Buster at a distance of 50 to 60 feet. At that time, Buster’s brake lights came on and Dawkins put his foot on the brake but did not attempt to stop his car. When the Roth car came across the center line, Dawkins was following Buster at a distance of 30 to 50 feet. Dawkins applied his brakes “as hard as you could” when the Roth car was 200 to 250 feet away but was then unable to stop before the collision. Dawkins conceded that “from a distance of seven hundred to eight hundred feet” he could have stopped his car “before coming into a collision with the Roth car” if he “had ridden that brake.”

Plaintiff did not submit the question of Dawkins’ negligence under MAI No. 17.04. At plaintiff’s request, the trial court gave Instruction No. 3 (MAI Nos. 17.01, 17.09, and 19.01), which directed a verdict for plaintiff against Dawkins, and reads as follows: “Your verdict must be for the plaintiff and against defendant Dawkins if you believe:

“FIRST, James McDowell Dawkins was following the 1958 Chevrolet automobile operated by Ronald Joe Buster too closely, and
“SECOND, defendant Dawkins was thereby negligent, and
“THIRD, such negligence directly caused or directly contributed to cause damage to plaintiff.”

This assignment of negligence is based upon § 304.017, RSMo 1959, V.A.M.S., which reads in part as follows:

“The driver of a vehicle other than those designated in section 304.044 shall not follow another vehicle more closely than is reasonably safe and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the roadway.” This statute “was enacted for the protection of every person or vehicle which would reasonably be afforded a measure of protection by the enforcement of the terms thereof. Nothing contained in the section would indicate any intention to restrict its application.” Binion v. Armentrout, Mo. Sup., 333 S.W.2d 87, 90. However, appellant Dawkins contends that the trial court erred in giving Instruction No. 3 “because there was no evidentiary support for the factual finding that the distance between Buster and Dawkins was an efficient cause of Roth’s collision with the Dawkins vehicle.” We agree.

A case quite similar on the facts is Garland v. Wilcox (1960), 220 Or. 325, 348 P.2d 1091. Plaintiff Roger Garland was a passenger in a car, driven by his brother, Robert Garland, and traveling in a southerly direction. Defendant Maddy was traveling in a northerly direction. Defendant Wilcox was following Maddy at a distance of three or four car lengths. The Garland car came around a curve at a high rate of speed “and was swerving and skidding so that the rear end of the car was over the center line of the highway.” Wilcox “continued on his course without slackening his speed until the Garland and Maddy cars collided, whereupon he applied his brakes and attempted to turn off the highway when his car was struck by the Garland car.” The trial court submitted to the jury Wilcox’s negligence in following too closely. The Supreme Court of Oregon reversed and remanded, stating: “* * * The question is whether there is evidence which causally connects Wilcox’s conduct in closely following Maddy’s car with the collision with the Garland car. We are unable to find this causal relation. The defendant Wilcox’ car collided with the Garland car which had swerved into the defendant’s lane of travel. It is possible to conclude that the collision would not have occurred if Wilcox had slowed down, turned out, or stopped when he first saw the signs of danger. But assuming that it could be shown that defendant was following closely, there is nothing in the evidence to show that his close proximity to the Maddy car was in any way related to the cause of the collision. If it had been shown that because of such proximity Wilcox could not see the dangers ahead and as a result the risk of collision with the oncoming car was increased, or that he was forced to turn out into the path of the oncoming car, or that he did not have sufficient space within which to stop and a collision with the preceding car caused it in turn to collide with an oncoming car, then in such cases, causation would have been established. But there is no evidence in the present case to show that the accident would have happened any differently had the Wilcox car been following Maddy’s car at a greater distance. As a matter of fact, there is nothing to show that the accident would not have happened even though Maddy’s car was not between Wilcox’ and Garland’s car.”

We have a similar situation here. Pyles contends that “the distance at which Dawkins was following Buster was the proximate, efficient and legal cause of the collision between Dawkins and Roth, because the danger to Dawkins produced by his proximity to the rear of the Buster automobile prevented Dawkins from focusing his attention on the obviously out of control Roth automobile in time to have prevented the collision.” This theory of recovery would require guesswork on the part of the jury under the evidence in this case. Liability cannot rest “upon guesswork, conjecture or speculation beyond inferences reasonably to be drawn from the evidence.” Probst v. Seyer, Mo.Sup., 353 S.W.2d 798, 802, 91 A. L.R.2d 1252. There is no evidence that Dawkins’ car was so close to Buster’s car that his view of the Roth car was obstructed. Only by resorting to speculation and conjecture outside of and beyond the scope of the evidence may it be found that Daw-kins’ conduct in following Buster too closely proximately caused the injuries to Pyles. This being true, the trial court erred “in permitting the jury to consider this aspect of * * * [Dawkins’] conduct as negligence.” Garland v. Wilcox, supra, 220 Or. 325, 348 P.2d 1091, 1097.

The case is reversed and remanded for new trial.

All of the Judges concur.


author: EAGER, Judge.

text:
    STATE of Missouri, Respondent, v. Walter BLEVINS, Appellant.
    No. 52557.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, David L. Pentland, Sp. Asst. Atty. Gen., Clayton, for respondent.
    Alan B. Weber, and Richard L. Hughes, St. Louis, for appellant.
   EAGER, Judge.

Defendant was convicted by a jury of first degree robbery by means of a dangerous and deadly weapon; the jury assessed his punishment at eight years in the penitentiary. The motion for a new trial, filed within the time allowed, does not sufficiently raise either of the points presented on this appeal. Defendant relies upon the doctrine of “plain error,” as stated in our Rule 27.20(c). Defendant was charged by information jointly with one Eddie Brown, but a severance was granted; he was represented at the trial by privately employed counsel but upon this appeal by two appointed counsel whom we commend for the diligence and skill employed in defendant’s cause.

On Saturday, Dec. 4, 1965, Ray Moore, almost 17, Allen Jones, 17, and Deborah Jones (Allen’s sister), 15, had been together for a short time at Moore’s residence in an apartment building at 2310 Cass Avenue in St. Louis. This was apparently part of a housing project and other high apartments were in the neighborhood. All three of these persons were students. Moore and Jones were both wearing black leather jackets. The three left the building at around 6:30 to 7:00 p. m., intending to take a bus from the bus stop immediately in front of their building, but decided to go across the street to a grocery store to buy candy; in so doing, one or more of them noticed two boys or young men looking in the grocery store window. The three then re-crossed the street to the bus stop, where they stood practically under a streetlight. Almost immediately, the two boys who had been seen at the window ran across the street, holding pistols, and confronted the three; one of them faced Jones and his sister (who were looking toward the street), and the other faced Moore, who was looking toward the building. The youth facing Jones, later identified as this defendant, said, “Get out of those coats,” and proceeded to take Jones’ coat; when Moore hesitated, that same boy said, “We’re going to have to shoot this-. He don’t want to come out of that coat,” — using a vile epithet. Moore did take his coat off (or it was taken off) and the youth identified later as Eddie Brown took it. The robbers then ran a short distance toward a part of the housing project, stopped, and made some remark about “fighting”; they then said or asked, —“You don’t like it,” trotted a little further, stopped, and fired several shots toward the victims, whereupon they disappeared into the housing project. Deborah went back to the grocery store as soon as she could and reported the incident to the police; when the police arrived they wrote a report. Later each of the group of three was called to the police station to see if he or she could identify two prisoners being held.

Since the first and principal point consists of an attack upon the police station identifications of defendant and the attendant circumstances, it will be necessary to go into some detail. Defendant was not placed in a “line-up,” and there is some disparity in the evidence as to whether he was shown alone or with Eddie Brown; it is probable that he was shown alone to one or more, and with Brown to one or more. Counsel argue that there was suggestiveness in the statements of the police in arranging for and in conducting the viewing. At one place the following occurred in Moore’s cross-examination: “ * * * they just merely brought him to you and said, ‘This is the man,’ didn’t they? A. That’s right. Q. And told you, ‘This is the man,’ is that right? A. No. They asked me was that him. Q. What did they tell you? Did they say, ‘We got the man,’ or what? A. No. Q. Did they tell you, ‘We got the man. Will you come down and identify him?’ A. Yes, that’s what they told me.” From the testimony of Jones, we quote: “And they asked you to identify him right there; is that correct? A. Didn’t ask me to identify him. Q. What did they ask you? A. What did they ask me? Q. Yes. A. I don’t remember what they asked me. I identified him as being one of the persons who robbed me, without asking anything. * * * You say they didn’t ask you to identify — A. They asked me was he one of the ones. Q. I see. In other words, they asked you to identify him as the one of the ones? A. They didn’t ask me to identify him. They asked was he one of the ones.” From the cross-examination of Deborah we quote: “Q. Miss Jones, when you reported to the police station did they have Walter Blevins there? A. At one time, yes. We went down there twice. * * * Q. Did they just tell you, ‘This is Walter Blevins’ ? A. No. Q. What did they tell you? A. Brought him forward and asked was that the person that, to identify, I mean, this is the person that robbed you, and I said, ‘Yes.’ ”

Concerning the identifications of defendant at the police station, we note the following: Moore had not directly faced defendant during the robbery, and at the trial he admitted, both on direct and cross-examination, that there was some doubt in his mind at the police station confrontation, although he identified defendant in the early part of his testimony at the trial. The defendant was given the benefit of this doubt, candidly expressed, before the jury. Moreover, at the conclusion of his principal cross-examination Moore admitted that then, i. e., at the time of trial, he was “doubtful” about Blevins but not about Brown. Jones testified that at the station he looked at defendant “to make sure”1 and said, “That’s him”; continuing, he testified: “I didn’t say ‘might be.’ I was positive.” Defendant had stood right in front of Jones and his sister during the robbery, at a distance of perhaps one and one-half feet. Deborah testified: that there was no doubt whatsoever in her mind about the identification of defendant at the police station, and that there was none at the time of trial; that she was “absolutely positive” of his identification.

The defense was that of alibi. Defendant, corroborated by one of his supposed companions, testified: that he and three others had attended basketball games on the afternoon in question and had, about 6:00 p. m., taken three girls (whose names he did not know) to a drive-in and then to the neighborhood of their homes; that they then started toward defendant’s home after 7:00 o’clock, and passed the locale of this robbery, where they saw a crowd and learned that there had been a robbery. Defendant denied participation in the robbery and also denied his presence there at the time. He admitted that he had previously known Eddie Brown casually; he further testified that the “police” told him that Brown had committed the robbery and that the description of the other person was “short and stocky and light complected.” In rebuttal, the two police witnesses of the State testified that defendant, after his arrest, never told them of attending the basketball games or of the trip in the car with others. Neither of these witnesses had gone to the scene of the robbery, or had written the original report. Eddie Brown, brought back from the penitentiary, testified: that he committed the robbery and was tried and convicted for it; further, that Blevins did not participate in it. He admitted a prior conviction.

Defendant was allowed an appeal as a poor person with a free transcript. His appointed counsel raise here, only as “plain error,” two points: (1) that defendant’s rights under the Fifth and Fourteenth Amendments of the United States Constitution (and equivalent provisions of the Missouri Constitution) were violated by the admission of the “identification evidence” offered and received; (2) that it was error to refuse defendant’s motion to require the production and allow inspection of the police report.

(1). Counsel first rely upon the absence of counsel for defendant at the time of the preliminary identifications, citing United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, June 12, 1967. The point is denied without discussion for the simple reason that in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, it was specifically held that the ruling in Wade was not retroactive. Blevins was tried and convicted in July 1966.

Next, counsel seek to establish that the pre-trial identifications were constitutionally unfair and that evidence thereof was improper, because defendant was not placed in a lineup, and because suggestive remarks were made by the police to indicate his guilt. Counsel again cite Wade but, as we read the opinions, neither of those issues was directly involved there. The issue actually decided was the absence of counsel at the unannounced lineup, and the failure to notify previously appointed counsel of such proceedings. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199, a defendant was brought by several officers and two Assistant District Attorneys to a hospital, in handcuffs, where he was shown to one of two stabbing victims (the other having died). The surviving victim, a woman, had just undergone a very serious operation, performed to save her life. The victim was asked whether “he was the man,” and she identified him. All this was shown in evidence at the trial and the victim, having survived, again identified the defendant; he was found guilty and sentenced to death. The Court first held that the decisions in Wade and in Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, were not retroactive. It further held that, although a pre-trial identification is a “critical stage,” there was no violation of due process under the circumstances related, because the stated manner of exhibiting the defendant was there “imperative,” since the victim could not go elsewhere. The Court held further that the showing singly of a defendant had been “widely condemned,” but that the constitutional validity or invalidity of such proceedings depends upon “the totality of the circumstances.” An examination of the five opinions leaves one in doubt as to whether or not a majority concurred in the holdings as stated above; we shall assume that it did.

In Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, the Court held that pre-trial identifications, without the presence of counsel who had previously been appointed, were constitutionally invalid; a judgment of conviction (with a death sentence) was vacated and the cause remanded for a determination of the effect of the supposedly “tainted” identification. Again, the divergent opinions leave the reader in some confusion, but the case is not controlling here, it having been held in Stovall to be nonretroactive.

If the point is to be considered, we must seek to ascertain the “totality of circumstances.” We first note that this point is presented as supposed “plain error”; under that rule an allegation of error may be considered if it affects substantial rights, “when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.” Rule 27.20(c). At no point in the trial or in the motion for new trial was the trial court given any opportunity to rule upon the question. The contentions are, in substance, that all evidence of pre-trial identifications and perhaps the trial identifications (the brief is not clear on that), should have been excluded because, (a) defendant was not exhibited in a lineup, and (b) that suggestive statements were made by the police to the identifying witnesses, all of which allegedly prejudiced defendant. The absence of a lineup is only one factor in the totality of circumstances. The so-called suggestive statements of the police have been quoted above. That contention arises principally from: an affirmative answer of Moore to a highly leading question by defendant’s counsel (If the police did not merely say “This is the man”) followed promptly by what seems to be a retraction, consisting of an answer to the effect that the police “asked” if that was the man; as to Jones, “They asked me was he one of the ones.” Deborah’s testimony was slightly vague, but it fairly shows that she was asked whether the person was one of the robbers. At one point Moore answered in the affirmative the question, — “Did they tell you, ‘we got the man. Will you come down and identify him ?’ ”

We note that substantially all of the supposed suggestive remarks were made to Moore. Moore testified that at the robbery he did not directly face Blevins, and that at the pre-trial confrontation he was in doubt about the identification; and his principal cross-examination concluded with his statement that he was still “doubtful.” Under these circumstances, it is almost inconceivable that anything said by the police influenced him or the jury, or in any way prejudiced the defendant. The other two, Jones and his sister, received no suggestions of consequence, and they were both most positive in their identifications of the defendant at all times. Under these circumstances, the “totality of the circumstances” certainly does not indicate that the trial was rendered unfair; and the facts do not show any such “manifest injustice or miscarriage of justice” as would authorize us to declare error under the doctrine of plain error.

(2) Counsel also allege, as “plain error,” the refusal of the Court to order the production of the police report. At the close of all the State’s testimony defendant’s counsel moved orally for the issuance of a subpoena duces tecum for that report. This was said to be based upon a feeling that there would be “conflicting statements about the identity” of the defendant, and counsel stated that the report was desired for impeachment. The police witnesses of the State had concluded their testimony and had been excused. Jones had testified that he gave a general description of the second robber (considering Brown as the first) to the police, reciting some details in his testimony. It was not shown that Moore or Deborah gave any description. Defendant, in his testimony, stated (in answer to a most leading question on direct examination) that the “police” (not further specified) told him that the other person was “short and stocky and light complected” (which would differ from the description testified to by Jones). The record does not demonstrate any sufficient reason for the production of the report; the motion was one in the nature of a “fishing expedition.” The officers who took the original description and wrote the report of the robbery did not testify. Neither the source nor the basis of the supposed statement to defendant was shown. The police report was not used in any way at the trial by any witness. Under these circumstances, there was certainly no “plain error” in the denial of the motion. The point is without merit. See, generally, State v. Crayton, Mo., 354 S.W.2d 834; State v. Mobley, Mo., 369 S.W.2d 576; State v. Aubuchon, Mo., 381 S.W.2d 807; State v. Cochran, Mo., 366 S.W.2d 360.

The judgment is affirmed.

All the Judges concur.


author: HYDE, Special Commissioner. PER CURIAM.

text:
    STATE of Missouri ex rel. Julius GOLD, Appellant, v. Thomas C. DUNNE, Treasurer of St. Louis County, Missouri, Respondent.
    No. 52801.
    Supreme Court of Missouri, Division No. 2.
    Dec. 11, 1967.

      Byron L. Kinder, David Brydon, Jefferson City, for appellant.
    Joseph B. Moore, St. Louis County Counselor, Murry A. Marks, Asst. County Counselor, Clayton, for respondent.
   HYDE, Special Commissioner.

Mandamus to compel the Treasurer of St. Louis County to comply with an order of the Governor of Missouri to issue a draft for $15,000.00 to relator. The Governor acting under authority of Sec. 549.020 (statutory references are to RSMo and V.A.M.S.) ordered a remitter of $15,000.00 of $20,000.00 paid on a judgment of forfeiture of a bond for appearance of one Thomas E. Galloway charged with second degree murder. Relator appeals from the judgment dismissing his petition and quashing the writ.

The first question is our jurisdiction which is invoked on the ground that “the construction of the revenue laws of this state” is involved. Sec. 3, Art. V, Const. Sec. 7, Art. IX, Const., provides “the clear proceeds of all penalties, forfeitures and fines collected hereafter for any breach of the penal laws of the state * * * shall be distributed annually to the schools of the several counties according to law.” See also Sec. 165.637. In State ex rel. Hadley v. Adkins, 221 Mo. 112, 119, 119 S.W. 1091, 1093, it was held “that the term ‘revenue law’ covers and includes laws relating to the disbursement of the revenue and its preservation, as well as provisions relating to the assessment, levy, and collection of it,” regardless of “where the law is to be found, whether under the title of ‘revenue’ or any other title, so long as it relates to the subject-matter of revenue.” See also State ex rel. Ginger v. Palmer, Mo.App., 194 S.W.2d 736, decided Mo.Sup.Banc, 198 S.W.2d 10; Pullum v. Consolidated School District No. 5, Stoddard County, 357 Mo. 858, 211 S.W. 2d 30, 32; Mathison v. Public Water Supply Dist. No. 2 of Jackson County, Mo. Sup., 401 S.W.2d 424. The Governor’s authority of remission of forfeited funds affects both disbursement and preservation of funds to be used as revenue for operation of schools. Therefore, we hold we have jurisdiction.

The case was submitted on an agreed statement of facts from which the following appear:

March 7, 1963, one Thomas E. Galloway was indicted in St. Louis County for second degree murder.

March 15, 1963, Relator and others signed Galloway’s bail bond, Relator acting as attorney in fact for other sureties obligated for $20,000.00.

October 28, 1963, Galloway failed to appear for trial and his bond was ordered forfeited. A motion was filed by the Prosecutor for judgment of bond forfeiture which was sustained November 15, 1963, and execution issued on December 3, 1963, returnable March 2, 1964, prior to which time Relator paid into court $20,000.00.

January 20, 1964, the State filed a motion for the Circuit Clerk to pay the $20,000.00 to the Treasurer of St. Louis County for the School Fund, which was sustained February 7, 1964, and payment was made. Thereafter, Galloway was recaptured, tried and found guilty of second degree murder and is serving sentence therefor in the Missouri Penitentiary.

August 24, 1964, Relator made application to the Governor of Missouri for remitter of the bond forfeiture under the provisions of Sec. 549.020, RSMo V.A.M.S.

September 22, 1964, the St. Louis County Council made an order for the Treasurer to distribute the amount paid by the Relator and other amounts held by him to the school districts of the county and this was done.

January 8, 1965, Honorable John M. Dalton, then Governor of Missouri, issued an order remitting to relator $15,000.00 of the $20,000.00 forfeiture; and ordering the Treasurer of St. Louis County to issue his draft for that amount. The order recited that “Julius Gold expended a great deal of time, money and effort in attempting to locate the said Thomas E. Galloway and return him to the State of Missouri”; that “a great hardship would be suffered” by the sureties “if the forfeiture was not remitted”; and that “equity and good conscience entitle” the sureties “to a remitter.”

It was further stipulated: “Respondent, as County Treasurer, has the duty of collecting all such forfeitures as this one and there constantly accrues to him fines, forfeitures and penalties which are to be credited to the school fund and paid out from time to time, as provided by law. At all distribution times since January 1, 1963, this fund, composed of fines, forfeitures and penalties, has far exceeded Fifteen Thousand Dollars ($15,000.00).”

The view of the trial court was “that the respondent lacks authority to make the payment requested by relator after distribution of the fund to the beneficiaries, the school districts, from other funds subsequently obtained.” However, it appears that application for remission was made to the Governor the month before the order of the St. Louis County Council distributing the funds to the school districts. Moreover, Relator had no good basis for applying for a remitter until Galloway had been recaptured and returned for trial. Furthermore, “funds of school districts are the property of the state, and not the private property of the school districts,” School District of Mexico, Missouri, No. 59 v. Maple Grove School District No. 56, of Audrain County, Mo.Sup., 359 S.W.2d 743, 746; School District of Oakland v. School District of Joplin, 340 Mo. 779, 102 S.W.2d 909, 915.

The Governor’s authority is stated in Sec. 549.020, as follows: “For any fine imposed by any statute, and for any forfeiture of a recognizance, where the securities are made liable, the governor shall have power to grant a remitter, when it shall be made to appear to him that there is by such fine or forfeiture an injustice done, or great hardship suffered by the defendant or defendants, which equity and good conscience would seem to entitle such defendant or defendants to be relieved from.”

In State v. Wynne, 356 Mo. 1095, 204 S.W.2d 927, 932, we said this section “vests the governor with power, on ex parte hearing, to grant remitter even though the defendant is never produced and even after final judgment on the recognizance.” See also Annotation, 77 A.L.R.2d 988-991, for cases permitting remitter after final judgment on order of a governor. Respondent, however, claims the governor has no authority to do so after final judgment when rights of third parties (school districts as distributees) have intervened; and that mandamus is not the proper remedy for relator. Respondent argues that the funds he receives from fines, forfeitures and penalties are trust funds “under jurisdiction of the county court” as provided by Sec. 171.060 (in St. Louis County the County Council, Sec. 6, Art. Ill, Charter) and are “to be collected annually and distributed as provided in Sec. 161.051” (“at the time of the distribution of state school moneys”). See also 163.081 as to state aid, Laws 1963, p. 200. Respondent further contends the rights of third parties, the school districts of the county, have intervened and this terminates his authority, citing Summit Fidelity & Sur. Co. v. Police Jury of Rapides Parish, La.App., 145 So.2d 395, and Byrum v. Turner, 171 N.C. 86, 87 S.E. 975. In the Louisiana case, the governor did not remit the forfeiture of a bail bond until eight months after the amount of the bond had been paid. The sheriff was entitled to a statutory commission of ten per cent and the district attorney twenty per cent of the amount of the bond and these commissions had been paid to them. The court said: “In the case now before this court, the Governor did not exercise his pardoning power and remit the forfeiture of the bail bond until some eight months after the amount forfeited had been paid to the police jury. The then-vested property rights of this governmental body and of the public officers entitled to commissions or fees for the amount thus collected, could not subsequently be divested by the exercise of the Governor’s pardoning power, which extends only to criminal liabilities and which cannot destroy vested civil property rights of individuals or of other governmental units.” 145 So.2d l.c. 398. The court mainly relied on cases as to the effect of a pardon to authorize recovery of a fine.

The North Carolina case was such a case, where the appellant after being pardoned by the governor sought return of a fine, which had been paid to the treasurer of board of education, the Court held against the appellant’s right to recover it, saying 87 S.E. l.c. 976: “* * * If a fine has been imposed and has been paid into the treasury of the state, or in this state to the treasurer of the board of education, before the pardon is granted, the money cannot be recovered back. [Citations.] But a pardon will work a remission of a fine, although it has been paid, and will entitle the person pardoned to have the money returned if it is still within the control of the executive, and the rights of third persons have not attached.” We note Secs. 77.360 and 79.220 granting remission authority to mayors of certain classes of cities provides that this does not authorize the mayor “to remit any costs which may have accrued to any officer of the city by reason of any prosecution.” There is no such limitation on the Governor’s authority under Sec. 549.020.

As to remission of forfeitures, it is said, 37 C.J.S. Forfeitures § 7 p. 24: “A legislature has power to authorize officers or courts to relieve from a forfeiture, even after judgment; and has been held to have power by its own legislative act to relieve from a forfeiture after judgment, even where the forfeiture is for the benefit of a county of the state,” citing Conner v. Bent, 1 Mo. 235; see also 36A C.J.S. Fines § 18, p. 459. In Walker v. State, Tex.Civ.App., 103 S.W.2d 404, 406, recovery of full amount paid on a judgment of forfeiture was permitted years later (the defendant for whose appearance the bond was given was dead at the time of the judgment) the court saying: “The judgments sought to be set aside were recovered in the name of the State and the money collected thereon was collected by the State. It is of no particular consequence that the money so collected by the State was later paid by it to one of its political subdivisions. The plaintiff was not required to trace the money into the hands of the ultimate consumer in order to recover it.” In that case also the money was required to “be paid over by the officers collecting the same to the county treasurer of the proper county, after first deducting therefrom the legal fees and commissions for collecting the same.” The court said (103 S.W.2d l.c. 406), “We attach no particular importance to this provision of the statute.” In this case, no officer’s fees or commissions are involved but the Governor remitted $5,000.00 less than the amount paid by Relator because of expense to the state caused by flight of the defendant Galloway.

Certainly the voluntary payment of the amount of the bond after judgment of forfeiture, instead of taking an appeal, should not affect the Governor’s authority. As stated in Application of Shetsky, 239 Minn. 463, 60 N.W.2d 40, 45, the remedial purpose of such authority (in that case the authority of the court) “to encourage sureties upon default to pay the penalty of their undertaking without putting the state to the expense of litigation — would largely be defeated if a surety making a voluntary payment thereunder were to be penalized by a construction which denied him all right of remission for a justifiable cause.” Likewise, efforts by sureties to bring about the return of an escaped defendant, as was done by Relator herein, also would be defeated. Our conclusion is that Sec. 549.020 gives the Governor authority broad enough to authorize him on a timely application to order payment from forfeiture funds in the hands of the county treasurer; and that it is not necessary to trace specific funds paid by a surety to school districts for recovery from them. It being admitted that the county treasurer has sufficient forfeiture funds to make the payment ordered by the Governor, which as we have noted are state owned funds, we hold the Relator is entitled to be paid from such funds the amount the Governor has ordered paid.

Respondent’s argument about mandamus not being the proper remedy is that Relator has not proven he has a clear unequivocal right, citing cases stating that principle, such as State ex rel. and to Use of Stoecker v. Lemay Ferry Sewer District of St. Louis County, 332 Mo. 965, 61 S.W.2d 724, where mandamus was unnecessary because respondents were willing to act on the basis of a court decision just rendered; State ex rel. Phillip v. Public School Retirement System of City of St. Louis, 364 Mo. 395, 262 S.W.2d 569, where mandamus was denied because the statute under which relief was sought was invalid; State ex rel. Vossbrink v. Carpenter, Mo. Sup., 388 S.W.2d 823, where mandamus was ordered to require payments to county school superintendents from funds appropriated for their additional compensation. It was pointed out in the Vossbrink case that, as in this case, the existence or nonexistence of the funds was not an issue in the case. Of course, mandamus will not lie where rights depend on the determination of a fact question; but even when the result must depend on the determination of a legal question “the legal question does not have to be so clear that there could he no dispute about it”, Perkins v. Burks, 336 Mo. 248, 78 S.W.2d 845, 848. The legal question here is whether Sec. 549.020 gives the Governor authority to make remission of a bond forfeiture after the amount thereof has been paid. Our view is that he has that authority, at least under the circumstances of this case where application for remission was made to him before there was any order of distribution of the forfeiture funds held by the treasurer. It is also our view that the Governor’s order has determined the question of Relator’s right to be paid.

However, respondent further contends that the Governor’s order “that the Treasurer of St. Louis County, to whom said bond was forfeited, issue his draft” to the securities for whom Relator is acting, is invalid because the Governor had no authority to require that method of payment. We must agree that Sec. 549.020 does not give the Governor authority to require a county treasurer “to issue his draft” to the bond sureties. Sec. 549.020 does not so provide and Sec. 303.020 of the ordinances of St. Louis County, adopted under the authority of its constitutional charter, Sec. 18, Art. VI, Const., provides: “The County Treasurer shall pay out monies not belonging to the county, held in any special fund or account for disbursement or transmittal by the county or any officer, employee or agent thereof, on warrants approved and signed by the County Auditor and the County Supervisor and not otherwise.” Sec. 27, Art. Ill of the Charter provides: “The Auditor shall audit all payrolls, accounts, demands and claims against the County, determine the correct amount thereof, draw a warrant on the County Treasury therefor and certify the same to the County Supervisor; * * This procedure is in harmony with the statutory requirements for other counties. Sec. 110.240 states the duty of the county treasurer to draw checks to pay warrants. Secs. 50.160, 50.180 and 51.150 provide for ordering and issuance of warrants by the county court and the county clerk. Although we consider the right to payment is clear, because it has been determined by the Governor, so that making payment is a ministerial act, nevertheless the treasurer can only be required to pay when a warrant is issued. We have often held that issuance of a warrant can be compelled by mandamus when there is no fact issue to be determined. We so decided in Perkins v. Burks, supra, 78 S.W.2d l.c. 846, where the issue of the amount due was solely a legal question and we ordered the county judges to issue warrants. Likewise in State ex rel. Strong v. Cribb, 364 Mo. 1122, 273 S.W.2d 246, the order was to require the Presiding Judge of the County Court of Macon County to sign a warrant. See also State ex rel. Baker v. Fraker, 166 Mo. 130, 65 S.W. 720; State ex rel. Holman v. Trimble, 316 Mo. 1041, 293 S.W. 98; State ex rel. Spratley v. Maries County, 339 Mo. 577, 98 S.W.2d 623; State ex rel. Williamson v. County Court of Barry County, Mo.Sup., 363 S.W.2d 691. Although all of the necessary parties are not now before the court, since we have determined that Relator has a meritorious claim, we consider it proper to give Relator an opportunity to amend to include them.

The judgment is reversed and the cause remanded with leave for Relator to amend his petition and include other parties if he so desires.

PER CURIAM.

The foregoing opinion by HYDE, Special Commissioner, is adopted as the opinion of the Court.

All of the Judges concur.


author: SEILER, Judge.

text:
    Thomas A. VANDERBECK, Appellant, v. Marie A. WATKINS, Executrix of the Estate of Oliver W. Watkins, Deceased, Respondent.
    No. 52269.
    Supreme Court of Missouri, En Banc.
    Nov. 13, 1967.
    Joseph S. Rosenthal, Marvin Q. Silver, St. Louis, for appellant.
    Robert E. Keaney, Moser, Marsalek, Carpenter, Cleary & Jaeckel, St. Louis, for respondent.
   SEILER, Judge.

This is an appeal by plaintiff from the action of the trial court in sustaining defendant executrix’ motion for summary judgment on the ground service of process was not obtained on the executrix within nine months after the first published notice of letters, citing Sections 473.360 and 473.367, as amended by Laws 1959 (all statutory references are to V.A.M.S.). The sequence of events is as follows:

1. Plaintiff was injured October 12, 1959.
2. Defendant’s decedent died December 31, 1961.
3. Defendant was appointed executrix January 10, 1962.
4. First publication of notice of letters was January 12, 1962.
5. Suit for $25,000 damages for personal injuries based on alleged negligence of employees of decedent was filed October 10, 1962.
6. Service of process was had on defendant executrix July 30, 1963.
7. It does not appear whether any notice was filed in probate court.

We reverse and remand. The trial court should not have sustained defendant’s motion. The petition sought a money judgment against defendant executrix for personal injuries, loss of earnings and medical expense. The fact of no service of process on the executrix within nine months of the first published notice of letters and lack of notice filed in probate court did not bar plaintiff from being able to obtain a judgment against the executrix, although it did bar plaintiff from recovery on any judgment obtained out of any assets being administered upon or from any distributee or other person receiving such assets.

When the legislature repealed sections 473.360, 473.363 and 473.367, 1957 Cumulative Supplement to RSMo 1949, and enacted in lieu thereof three new sections, which became effective August 29, 1959, it was aware of Helliker v. Bram (Mo.Sup.) 277 S.W.2d 556, and North v. Hawkinson (Mo.Sup.) 324 S.W.2d 733, and that there was pending before the court litigation wherein it was being contended that under the new probate code the nonclaim provisions must be held to bar or abate tort actions pending against an administrator or executor in circuit court and that such actions were subject to dismissal on motion, unless notice had been filed within nine months after the first published notice of letters, as was subsequently held to be the case in Clarke v. Organ (Mo.Sup. banc) 329 S.W.2d 670. See the discussion in Darrah v. Foster (Mo.Sup.) 355 S.W.2d 24, 31, and also the caveat published in The Flag, by Henry Andrae, Journal of the Missouri Bar, February 1958 issue, page 41.

The clear implication of the wording of Section 473.360(2) of the 1959 enactment is that a judgment can be obtained against the executor or administrator even when no service of process is had on the executor or written notice is filed in probate court within nine months of first publication of letters, because it provides “ * * * no recovery may be had in any such action on any judgment therein against the executor or administrator * * * ” (emphasis supplied). There would be no reason to phrase the subsection in terms limiting the way by which recovery could be had on a judgment if no judgment could be obtained in the first place. The language shows the intention of the legislature was to permit a judgment but not to permit recovery on it out of assets being administered upon. It would have been useless labor for the legislature to have enacted the new sections if the net effect was to provide that no judgment could be obtained even though it were to be collected out of assets not administered upon, because this was already the effect of the prevailing court decisions, see Clarke v. Organ, supra.

There is a significant difference between the old and the new subsection 2 of Section 473.360. The old barred or abated “All actions against the estate of a deceased person”, whether instituted or revived, unless notice was filed within nine months after the first publication. The new subsection contains no such bar or abatement and is not directed against “All actions”, but rather against the recovery on judgments in actions out of assets being administered upon.

If despite the clear implication of Section 473.360(2) that a judgment can be obtained, we were to hold Section 473.360 (1) and Section 473.367 mean to the contrary, then there would be a conflict between subsections 1 and 2 of Section 473.-360, which we do not believe was the intention of the legislature. The two are in harmony under the construction that a judgment can be obtained but cannot be collected out of assets being administered upon unless the provisions of Section 473.-367 (or in a revival situation, Section 473.-363) are complied with. This is also consistent with the fact that both Sections 473.-363 and 473.367, which deal exclusively with actions, refer to what has to be done for an action to be “considered a claim duly filed” against the estate. Subsection 1 of Section 473.360 is the one which bars claims “which are not filed”. Subsection 2 of Section 473.360 says nothing about filing claims, and while stated in terms of “no recovery may be had”, is premised on the assumption Sections 473.363 or 473.367 have not been followed. So we have subsection 1 of Section 473.360 which provides what must be done to establish a claim against the estate, and subsection 2 of Section 473.360 which provides what is not available for collection of a judgment obtained where the proper steps have not been taken to establish the action as a claim duly filed.

A suit of the type here involved can be commenced any time within the five-year statute of limitations. If the original executor or administrator is no longer in office, there are procedures available to obtain the appointment of a personal representative against whom suit can be filed, see Section 537.020 and discussion in dissenting opinion in Smith v. Maynard (Mo.Sup.) 339 S.W.2d 737, 1. c. 743, and in concurring opinion, State ex rel. McCubbin v. Ginn (Mo.Sup. banc) 347 S.W.2d 119, l. c. 125.

Nebraska Hardware Mutual Ins. Co. v. Brown (Mo.App.) 355 S.W.2d 395, wherein an action was dismissed on the ground the administrator had not been served within the nine months’ period after first publication of notice, should no longer be followed.

The judgment is reversed and the cause remanded.

All concur.

      . The opinion in Division Two, later adopted by the court en banc, was handed down June 22, 1959.