author: HYDE, Judge.

text:
    STATE of Missouri, Respondent, v. Courtney Lorenzo BEASLEY, Appellant.
    No. 51564.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.
    Norman H. Anderson, Atty. Gen., Jefferson City, James T. O’Brien, Asst. Atty. Gen., St. Louis, for respondent.
    Marvin S. Wood, Clayton, for appellant.
   HYDE, Judge.

Defendant was found guilty of first degree murder by a jury, which assessed his punishment at imprisonment for life, and he was sentenced accordingly. Defendant has appealed from this judgment and sentence.

Defendant’s principal contention is error in admitting defendant’s signed statement claimed to have been obtained in violation of his constitutional privilege against self-incrimination under the Fifth Amendment to the United States Constitution. The State contends this claim and other matters raised in defendant’s brief cannot be considered because defendant’s motion for new trial was not filed within the time fixed by the court, which was Friday, April 30, 1955. The motion was shown filed on Monday, May 3, 1965, which was within the time the court could have granted under Criminal Rule 27.20 (a), V.A. M.R. Thereafter, on June 16, 1965, the motion was taken up and overruled by the court. We consider that we should rule on this contention under Rule 27.20(c) because a coerced confession can be challenged in a federal habeas corpus proceeding. In Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 836, 9 L.Ed.2d 837, it rs said of a coerced confession : “That complaint is * * * of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. Moore v. Dempsey, [261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543] * * *. [A]nd the proceeding thus vitiated could be challenged in any appropriate manner.” See also Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. Thus if the contention is true that defendant’s confession was inadmissible, as being procured in violation of the Fifth and Fourteenth Amendments, its use would be plain error affecting substantial rights from which we should find that manifest injustice resulted. Therefore, we will consider this contention.

This case involves the charge made in the indictment considered in State v. Brown, Mo., 404 S.W.2d 179, in which this defendant was jointly charged with Richard Brown and the three others therein named; and severances were granted. The evidence in this case (other than defendant’s statement) showed substantially the same facts as stated in the opinion in that case, of which we make the following summary. Defendant was with a group of young men from 15 to 18 years old. They got Vernon Coleman, who was 35 years old, to get wine for them and had some argument about Coleman keeping change from this purchase. Whether for this reason or because Coleman did not get more wine, the group of about thirteen of the young men and two girls went to the head of the alley where Coleman lived in a shed. The girls and some of the boys stayed there but at least the five who were indicted went to Coleman’s shed to beat him up. They threw sticks, rocks, bricks, bottles at the shed and then defendant and some others went into the shed, defendant lit a match and seeing Coleman in bed, they “started throwing stuff at him.” Coleman ran outside, “Jimmie Sharp hit him and he fell, and we all started kicking him, all of us started kicking him and hitting him. * * * With bricks —sticks and bricks and rocks.” (Thomas Brown’s testimony.) Richard Brown picked up a large cluster of bricks and concrete and dropped it on Coleman. Although no one testified that this cluster struck Coleman’s head (only seeing it fall off his chest), an autopsy showed Coleman died of a skull fracture and resulting cranial hemorrhage. Defendant’s statement corroborated these facts as to the assault on Coleman and stated defendant’s part in it; namely, that he struck Coleman with his fist and kicked him three or four times when he was on the ground; and he said the suggestion to go to Coleman and “beat him up” was made by Archie Brown.

On the claim of defendant’s counsel that defendant’s statement, offered in evidence by the State, was not a voluntary statement, the court held a hearing out of the presence of the jury. Defendant did not testify and the only evidence at this hearing was the testimony of an officer who arrested defendant and the testimony of an officer who was present when defendant made the statement. (Defendant’s statement was in question and answer form taken by a stenographer.) The testimony of the arresting officer was that he with another officer arrested defendant between 3:30 and 4:00 A.M. at the house where he lived with his aunt and uncle, that defendant was not mistreated, threatened in any way or promised anything to make a statement; and that “he was very cooperative.” This officer was with defendant about an hour and then turned him over to other officers. There was no evidence about defendant being questioned by anyone except by the arresting officer “about a couple of minutes” until the First Assistant Circuit Attorney arrived about 9:30 A.M. and was in charge there all the rest of the morning. The other officer who testified said he arrived at Police Headquarters about 7:30 A.M. but was not sure of the time he first saw defendant; but that around 11:00 A.M. defendant was interrogated in his presence by the Assistant Circuit Attorney. He said he detected no odor of alcohol on defendant’s breath as the arresting officer did; and that defendant was alert but seemed tired. There was really no testimony at this preliminary hearing to show any improper action toward defendant. The court found “the statement is a voluntary statement” and admitted it in evidence. It also submitted this issue to the jury.

It appears that statements were taken from five or six of the young men involved, during that morning; that the Assistant Circuit Attorney “talked with all of them together as a group”; and that statements were then taken from them individually. It was an all-morning procedure to take the statements from all the young men, type them and have them read them and sign them; but only about half an hour was required on defendant’s statement. Counsel was not offered or requested and there is nothing in the record to show that defendant was told anything more than appears in his statement, as follows:

After stating his name and official capacity the Assistant Circuit Attorney asked defendant:

“Q * * * I am here this morning to ask you if you wish to give a statement concerning a man beaten in the alley in the rear of the 4300 North Market, do you wish to give that statement?

“A Yes, sir.

“Q Has anyone promised you anything? A No, sir.

“Q Has anyone threatened you in any way? A No, sir.

“Q Do you realize this statement you are about to give may be used against you in court? A Yes, sir.

“Q How old are you? A Seventeen.”

Defendant then answered questions concerning the assault on Coleman and his part in it.

This case was tried after the decision of the United States Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Therefore, we are required to follow the rulings in that case by Johnson v. State of New Jersey, No. 762, October Term 1965, 384 U.S. —-, 86 S.Ct. 1772, 16 L.Ed.2d-. In the Johnson case, the court said: “Apart from its broad implications, the precise holding of Escohedo was that statements elicited by the police during the interrogation may not be used against the accused at a criminal trial, ‘[where] the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particluar suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent * * *.’ ” However, this was held to violate not the Fifth Amendment but instead that “the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 U.S. [335], at 342, 83 S.Ct. [792], at 795, [9 L.Ed.2d 799], and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” The application of the Fifth Amendment was not discussed in Escobedo. There is nothing in the record in this case to show defendant asked for consultation with counsel as in Escobedo, or asked to consult anyone, so the question for our determination is whether failure to show it was specifically stated to defendant that he had a right to remain silent prevents the use of his statement as evidence. We note there were such warnings in State v. Russell, Mo.Sup., 395 S.W.2d 151, 153, and State v. Boykins, Mo.Supp., 399 S.W.2d 70, 72. Likewise in State v. Davis, Mo.Sup., 400 S.W.2d 141, 149, it was shown that the defendant “was informed that he need not give a statement.”

Escobedo did not hold that if no lawyer has been employed and no request to see a lawyer or anyone else has been denied that a specific statement must be made to one interrogated that he has a right to remain silent, before any statement from him would be admissible. Several cases have interpreted it as not making such a requirement as essential to the admissibility of a statement. See People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852, 855-856; State v. Vigliano, 43 N.J. 44, 49-52, 202 A.2d 657; Bean v. State of Nevada, Nev., 398 P.2d 251, 253-255; Browne v. State, 24 Wis.2d 491, 131 N.W.2d 169, 171-172; United States v. Robinson, (USCA 2 Cir.) 354 F.2d 109, 113-115; United States v. Cone, (USCA 2 Cir.) 354 F.2d 119, 125-128. The lack of a statement to Escobedo of his right to remain silent was only one of five factors held to prevent the use of his statement; and this was stated as one of the reasons why his Sixth Amendment right to consult with his available counsel was violated.

In the United States Supreme Court, “[t]he test has been whether the totality of circumstances deprived the defendant of a ‘free choice to admit, to deny, or to refuse to answer,’ Lisenba v. People of State of California, 314 U.S. 219, 241, 62 S.Ct. 280, 292, 86 L.Ed. 166, and whether physical or psychological coercion was of such a degree that ‘the defendant’s will was overborne at the time he confessed,’ Haynes v. State of Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 1343, 10 L.Ed.2d 513; Lynumn v. State of Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922. The duration and nature of incommunicado custody, the presence or absence of advice concerning the defendant’s constitutional rights, and the granting or refusal of requests to communicate with lawyers, relatives or friends have all been rightly regarded as important data bearing on the basic inquiry.” (Dissenting opinion of Justice White in Miranda v. State of Arizona; see also dissenting opinion of Justice Clark therein; see also Davis v. State of North Carolina, October Term 1965, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895.) We do not understand that Escobedo changed the totality of the circumstances test (as noted it considered five factors); and we consider it to be the proper test to be applied in determining the admissibility of statements offered in trials occurring prior to June 13, 1966. For trials after June 13, 1966, Miranda v. State of Arizona, October Term 1965, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, imposes new and different rules. Therefore, we consider the totality of the circumstances rule to be the test applicable to this case.

Considering the totality of circumstances herein, we find there was no evidence of any interrogation of defendant by anyone (except a couple of minutes by the arresting officer) until the Assistant Circuit Attorney arrived to take charge. Likewise, there was no evidence of incommunicado or even separate confinement but instead the Assistant Circuit Attorney talked to all of the young men involved together as a group. A statement was then taken from each, which after being typed, was then signed by each after reading it or hearing it read. Some of the young men (but not defendant) were within the juvenile court age and there was a juvenile officer present. The first question to defendant was whether he wished to make a statement, giving him the choice of not making a statement. This was followed by inquiries concerning threats or promises and a warning that a statement could be used against defendant in court. The manner and circumstances of the interrogation indicate freedom of choice to give a statement or remain silent. Neither of the two young men involved, who testified at the trial (one called by the State and one by the defendant) suggested or was even asked at the trial about any coercion, threats, promises, questioning by anyone prior to the arrival of the Assistant Circuit Attorney or any mistreatment of any kind. Thus there was no evidence either at the hearing on the motion to suppress, out of the presence of the jury, or^at the trial to show improper action by those having defendant in custody. We, therefore, hold that it appears from the totality of the circumstances that defendant’s statement was a voluntary statement and properly admitted in evidence.

Other claims of error in defendant’s brief ar.e not considered because not properly preserved for appellate review or even argued in his brief. In any event we would find them to be without merit.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HOUSER, Commissioner.

license: Public Domain

text:
    In re ESTATE of William J. CARTER, Deceased, Respondent, v. Blanche Margaret CARTER, Appellant.
    No. 51644.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.
    Stewart, Reid & Turner, A. Ronald Stewart, Donald R. Duncan, Springfield, for respondent.

      Lon S. Haymes, Springfield, W. Ray Daniel, B. H. Clampett, Daniel, Clampett, Ritterhouse, Ellis & Dalton, Springfield, and Horace S. Haseltine, Lincoln, Hasel-tine, Forehand & Springer, Springfield, for appellant.
   HOUSER, Commissioner.

This is an appeal from a judgment of the Circuit Court of Greene County affirming a judgment of the probate court. We have jurisdiction because title to real estate is involved. Art. V, § 3, Constitution of Missouri, V.A.M.S.; Buschmeyer v. Eikermann, Mo.Sup., 378 S.W.2d 468, 469.

Our task on this appeal is to construe the will of William J. Carter, which was written in his own handwriting and signed and witnessed on May 27, 1957. We reproduce the will, omitting signatures and attestation clause.

Testator died at the age of 65 years on June 1, 1957, leaving surviving him his wife Marie, his daughter Blanche Margaret Carter and his brother Walter S. Carter. Marie elected to take against the will. Marie died on March 8, 1962. Blanche Margaret, the executrix, proposed a final settlement on the basis that the property remaining after payment of debts and expenses belonged to Blanche Margaret absolutely and in fee simple. Persons claiming an interest as the blood heirs of Walter S. Carter, who would have been excluded from any interest in the estate under the proposed settlement, objected. The probate court approved a final settlement upholding the position of the collateral heirs. On appeal the circuit court found an intent to devise a defeasible fee to Blanche Margaret, subject to a shifting executory devise in the direct blood heirs of Walter S. Carter if she died without leaving blood heirs. Blanche Margaret has appealed from the judgment of the circuit court.

The general question is whether the will gave Blanche Margaret an absolute and indefeasible estate in fee simple upon termination of the preceding life estate in her mother, or a defeasible fee subject to divestment if she died without “direct blood heirs.” The specific question is whether in providing that “at her death in case she should leave no direct blood heirs” (our emphasis) testator was referring to his wife Marie or his daughter Blanche Margaret.

Both parties assert at the outset that the will, read in its entirety, is clear and unambiguous; that it reveals the intent of the testator, and that resort to auxiliary rules of construction is not necessary.

Blanche Margaret claims that testator’s intent to give her an indefeasible estate in fee simple is apparent, considering the entire will; that the court’s construction of the words “at her death” as referring to Blanche Margaret’s death ignores the four corners of the will, ignores the logical listing and paraphrasing of the events prefaced by the words “And at her death,” ignores the presumption that the phrase “her death” has the same meaning in the disputed sentence that it had when twice previously used by testator, and ignores the situation which would result from the meaning read into the will by the circuit court, namely, that testator, incredibly, would have made no provision for the payment of the expenses of his wife’s funeral or for the erection of a monument to mark her grave.

Those who claim as collateral heirs contend that it is clear from the whole will that when testator wrote “And at her death in case she should leave no direct blood heirs” he was referring to his daughter’s death anytime after his death and not his wife’s death.

Examining this will from its four corners and as a whole, with due regard to its directions and the true intent and meaning of the testator, § 474.430, V.A.M.S., it clearly and without ambiguity discloses a scheme, plan and design on the part of testator, after provision for his wife during her lifetime or until her remarriage, by which his estate would devolve upon and go to his heirs in his bloodlines: first to his nearest blood heir, his daughter, Blanche Margaret, and at the time of her death if she left no direct blood heirs, then to the direct blood heirs of his brother Walter. This is the dominant purpose and effect of his testament. This controlling intention must be effectuated. The words used in the testamentary writing will be subordinated to such intention and purpose. Pursuant to his general plan testator left his “entire estate” to his wife until her death or remarriage, with the right in his wife and daughter, by agreement, to convert the real estate into federally insured interest-bearing securities at any time before his wife’s death or remarriage. Next,"| he provided that at his wife’s death or re-' marriage the “entire estate” should go to j his daughter, Blanche Margaret, not in feej simple absolute, but as an estate in fee with j an executory.jdeyise over, in the nature of' a shifting use, to take effect upon the con-j tingency that the daughter die leaving di-| rect blood heirs, failing in which the feej would be defeated and the executory de-'; vise over to the direct blood heirs of tes- j tator’s brother Walter would become effec- j tive. 1

As we construe this will the words “at her death” immediately following the grant to Blanche Margaret refer to Blanche Margaret and not to Marie. It is generally accepted that a personal pronoun refers back to the closest antecedent noun of the same gender, unless it- is clear that reference is made to some other noun. Under this rule of grammar we believe that testator was referring back two words to Blanche Margaret and was not referring back thirty-three words to Marie. Application of these words to Blanche Margaret bespeaks the logical progression of events in the mind of a testator intent on keeping his estate in his bloodlines, after making provision for his wife: first to his daughter, then on the contingency that she die without direct blood heirs, to the blood heirs of his brother. Application of those words to Marie would make possible the coming to pass of a situation which would be utterly inconsistent with the dominant theme of this will, which is to restrict the subsequent devolution of the estate to testator’s bloodlines, direct or collateral, on the contingency named. Under Blanche Margaret’s construction, if following testator’s death Blanche Margaret had died during Marie’s lifetime and Marie had then borne children by a subsequent marriage, Marie’s said children would take the estate to the exclusion of those in testator’s brother’s bloodline. We cannot attribute an intent on the part of testator to allow this to happen, when his testament reflects so definitely a desire to terminate Marie’s enjoyment of his estate upon her remarriage and to favor his own bloodline and that of his brother. Furthermore, it is of some significance that under Blanche Margaret’s construction testator does not refer directly to the contingency of the death of his daughter prior to the death of his wife, except by the reference thereto implicit in the language leaving the estate to Walter’s blood heirs in case she (Marie under this construction) “should leave no direct blood heirs.” That testator would have made such an oblique and implied reference to a contingency of such importance to him is unlikely. Nor would it have been natural for testator to refer to his daughter Blanche Margaret, even indirectly, as a “blood heir.” It would have been more likely for testator, who four times referred to his daughter as such, using her full name Blanche Margaret Carter three times, to have said something like “If my daughter dies before my wife dies * * * ” or “If my wife survives my daughter * * but he did not do so.

Blanche Margaret relies on the fact that the grant of the estate to her ends with a period, followed by a space, and that the paragraph ends there, thereby indicating an intent to give her an indefeasible estate in fee simple absolute without limitation or qualification. It is noteworthy that the grant to Marie also ends with a period followed by a space, and that that paragraph could be said to end there, but no one contends that this is indicative of an intention to vest a fee simple title in Marie. The will demonstrates on its face that testator was not skilled in the use of punctuation or paragraphing, and that his spacing was unconventional. He used periods when no punctuation was appropriate or when commas were more appropriate. He omitted commas where appropriate and used them when inappropriate. He capitalized words inappropriately and in the middle of sentences. Under these circumstances testator’s spacing, paragraphing, punctuation and capitalization are not reliable guides to ascertain his intention, which we have gleaned from the context of the will. We regard the periods after the grants to Marie and Blanche Margaret as punctuation mistakes which we have a right and duty to disregard under the circumstances. 95 C.J.S. Wills § 612. Treating those periods as mistakes which should be excised, the granting clauses, the contingency, and the remainder clause all flow together in one sensible, intelligible and understandable whole.

Blanche Margaret presses for a ruling that the phrase “her death” appearing in the disputed paragraph refers to the same death as the same words used twice before, i. e., to the death of Marie; that “If a testator uses a given word in one part of his will with a certain meaning, it will be presumed that in using the word in another part he intended it to have the same significance.” Hogg v. Falk, 359 Mo. 1103, 225 S.W.2d 756, 758; Snow v. Ferril, 320 Mo. 543, 8 S.W.2d 1008; English v. Ragsdale, 347 Mo. 431, 147 S.W.2d 653. The rule relied upon is an auxiliary rule of construction, of assistance in cases of ambiguity, but it is to be used only as an aid in determining the intent of the testator. “Where, as in the instant case, the intent may be clearly ascertained from the will itself, rules of that kind have little, if any, application.” Commerce Trust Co. v. Weed, Mo.Sup., 318 S.W.2d 289 [3]. Such a rule of construction “ * * * must yield to an otherwise manifest intention of the testator.” Prior v. Prior, Mo.Sup., 395 S.W.2d 438, 443. Jarman on Wills, 8th ed., Vol. 3, p. 2071, states the rule and its limitations as follows: “ * * :⅛ [W] ords, occurring more than once in a will, shall be presumed to be used always in the same sense, unless a contrary intention appear by the context, or unless the words be applied to a different subject.” (Our emphasis.) Here the words “her death” apply to a different person. In our judgment the intention of the testator to apply the words “her death” to Blanche Margaret, and not to Marie, is clear.

Blanche Margaret contends that the application of the words “her death” to her rather than Marie results in an incredible situation. The unreasonable, unnatural and strange result would be, she says, that this testator, whose first concern was the welfare of his wife, would have made no provision whatever for his wife’s burial expenses, or for a monument for her grave. In our judgment the provisions of the will reasonably justify this rationalization: Testator, who was on his deathbed when he wrote this will (he died three days later) had in mind that he would die first; that Marie would die next, in the normally-to-be-expected course of events, and that of the three his daughter would die last. Payment of testator’s funeral expenses was provided for by his will. Upon his wife’s death his daughter could be depended upon to pay for her mother’s funeral expenses and provide her with a monument. If his daughter died with blood heirs, having succeeded to the estate in fee, her funeral and monument costs would be paid out of her estate. This left unprovided for the situation in which the daughter died without leaving blood heirs, in which event the estate would pass to the collateral heirs. This was a distinct possibility. Blanche Margaret had not yet married. Testator, seeking to stop this gap, wrote the provision requiring payment of Blanche Margaret’s funeral expenses and the erection of a “nice monument” to her grave, before the remainder of the estate should pass to the collateral heirs, who might not be as solicitous in this regard as her father, the testator. This left one situation for which provision was not made: if the daughter died without blood heirs after her father’s death but before her mother’s death. In that event testator, if he considered it, would reasonably have expected his wife to take care of the expenses of the daughter’s funeral and monument: We conclude that the application of the words “her death” to Blanche Margaret, and the provisions with respect to funeral, etc. expenses, lead to reasonable and natural results.

In the second portion of her brief Blanche Margaret, arguing alternatively that the will is ambiguous and that the intention of the testator is unclear, seeks to apply certain rules of construction.1 She sees ambiguity in the question whether the words “her death” refer to Blanche Margaret or Marie, but if she is mistaken as to that and if testator meant to refer to Blanche Margaret, she claims that there is further ambiguity in that the will does not clearly indicate whether testator meant his daughter’s death during his lifetime, or during Marie’s lifetime, or at any time. She likens this case to Ewart v. Dalby, where testator left his estate to his wife, and at her death to his daughter, “and if she dies single and unmarried and without issue,” to his brother, etc. The will in that case, however, was unlike the Carter will now before us for construction. It was short, unilluminating, vague and uncertain as to the time to which the words last above quoted were referable — whether to her death during testator’s lifetime, during the life tenant’s lifetime, or to the moment or time of the death of the daughter, whenever that might occur. The Carter will contains the following internal evidence that testator did not have in mind the death of Blanche Margaret during his lifetime: The phrase “at her death” definitely establishes the moment or time of the event which is to control in determining whether the executory devise to the blood heirs of Walter will be effected. That phrase has no limitation as to time. It means death at any time and needs no qualifying language to be understood. It clearly refers to death as a certainty. Coleman v. Haworth, 320 Mo. 852, 8 S.W. 2d 931, 934. The provision for payment of his daughter’s funeral expenses and monument cost out of the estate would have been unnecessary if testator had contemplated his daughter’s death before he died, for in that event testator would have paid these bills during his lifetime. Likewise the provision for the sale of the real estate by agreement of testator’s wife and daughter and the investment of the proceeds in federally insured income-bearing securities, in order to be effective, would require the daughter to survive testator. Both of these provisions are inconsistent with Blanche Margaret’s theory. If testator intended her to have an indefeasible estate in fee simple absolute if she survived testator there would be no “remainder of the estate” left to go to the collateral heirs, because she would already have all of it. If it had been intended to give her an estate in fee simple absolute testator would not likely have empowered his wife and daughter to convert the real estate and use the income from the reinvestment of the proceeds; with that highest of all estates she already would have had the greater power to use not only the income but also the principal of the proceeds, acting in agreement with the life tenant. Another indication that testator did not contemplate that his daughter would predecease him is the fact that he appointed her executrix without making any substitutional provision in case of her prior death. Kindred v. Anderson, 357 Mo. 564, 209 S.W.2d 912, 914. The provision for the conversion of the real estate by Marie and Blanche Margaret and their use of the income therefrom “at any time before the death or remarriage of” Marie does not indicate that testator was contemplating his daughter’s death prior to that of his wife, but the opposite. We conclude that in writing “And at her death in case she should leave no direct blood heirs,” etc. testator referred to Blanche Margaret’s death at any time after his death, whenever it might occur, and that he had in mind that it probably would occur after his death and after the death of his wife. There is no ambiguity in this respect and we find no reason to resort to rules of construction in order to ascertain testator’s intent.

Finally, Blanche Margaret makes the point that the court erred in holding that Blanche Margaret received less than an indefeasible estate in fee simple absolute because the will devised to her “the Entire Estate,” and the provision relied upon as cutting down the fee appeared later in the will in language not equally clear as that creating the fee. She relies on the rule that “* * * A fee simple estate granted by devise or bequest in a will, may not be cut down or limited by a subsequent ambiguous provision. * * * ” Gehring v. Henry, Mo.Sup., 332 S.W.2d 873, 877. And see Palmer v. French, 326 Mo. 710, 32 S.W.2d 591; Farkas v. Calamia, Mo.Sup., 373 S.W.2d 1; Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647; and Estill v. Ballew, Mo.Sup., 26 S.W.2d 778, 70 A.L.R. 321. The converse of that rule is that “ * * * if an estate be granted in one clause of the will its quantity may be cut down to a lesser estate by an express provision to the effect, or by words so strong and clear as to have that effect by plain and necessary implication.” Cox v. Jones, 229 Mo. 53, 129 S.W. 495. Testator used the words “the Entire Estate” “to signify everything of which riches and fortune may consist,” Bouvier’s Law Dictionary; Williams v. Chicago, B. & Q. Ry. Co., 169 Mo.App. 468, 155 S.W. 64 [4]; the aggregate of property of all kinds which he might leave at his death, whether real, personal or mixed, and of whatever nature and wherever situated. He was not using these words to indicate the degree, quality, nature, extent or quantity of the interest which he was granting. It is true that the provision “The entire estate shall go to my daughter * * *,” without more, would have effected a grant in fee simple absolute. Shaw v. Wertz, Mo.Sup., 369 S.W.2d 215, 218. But there was more, and we must consider what followed and give effect to all words found in the will whenever such a construction is possible. The immediately following provision that at her death “in case she should leave no direct blood heirs” the remainder should go to the blood heirs of testator’s brother limits the preceding grant and cuts down the estate there granted by words which by plain and necessary implication create a defeasible estate in fee. If Blanche Margaret dies leaving direct heirs of the blood she dies owning the fee. If she dies without leaving such heirs the executory devise over to the direct blood heirs of Walter takes effect. There is no ambiguity in this language. This construction is in harmony with and gives effect to all other words of the instrument.

The judgment is affirmed.

WELBORN, C., not sitting.

HIGGINS, C., concurs.

PER CURIAM.

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

All of the Judges concur.

      . I. e., the rule that the law favors testator’s heirs; that the law favors the early vesting of estate: and the rule applied in Ewart v. Dalby, 319 Mo. 108, 5 S.W. 2d 428, that when property is devised to A in terms denoting an intention that A take the fee, coupled with a devise over in ease of A’s death, without issue, the words refer to A’s death without issue during the lifetime of the testator, and A surviving the testator takes an absolute estate in fee simple.


author: BARRETT, Commissioner.

text:
    STATE of Missouri, Respondent, v. Chester SCOTT, Appellant.
    No. 51839.
    Supreme Court of Missouri, Division No. 2.
    July 11, 1966.

      Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
    William B. Morgan, Kennett, for appellant.
   BARRETT, Commissioner.

After a hearing in September 1965 upon a motion under Criminal Rule 27.26, V.A. M.R. to vacate and set aside a 1949 judgment and sentence of life imprisonment for murder in the first degree, the court entered an order overruling the motion and the petitioner Chester Scott has appealed.

Chester and Odis Johnson were Arkansas woodchoppers, they had been working on Kroner’s Island in Arkansas when, according to Chester, Odis “got in trouble with a little old girl down there,” and “finally talked me into the notion, told me that if I didn’t go I’d always be sorry,” of coming to Missouri. They were cutting timber “down below” Rives or Hornersville in October 1949, apparently living together. On October 9 Odis and Chester “had been up at Rives drinking all evening” and “a guy (that) carried him home before I went home.” Then Chester “got the same guy” to carry him home where they “kept drinking and messing around” and finally got into an argument. Odis “got to bragging and talking about that girl, and I told him that he could possibly get into trouble over it yet, and so he just started into raving and come at me with a knife and told me that I would never snitch on nobody else.” When Odis asked how he could get into trouble over the girl now Chester said, “I had to tell the man I was working for some reason why I was quitting” and “That’s what it come up about.” But when, as he testified on this hearing, Odis came at him with a knife, Chester “killed him with a double bitted chopping axe,” hit him over the head with the flat side of the axe, and then “buried him.” Nine days later, October 18, 1949, Chester gave “myself up” and was charged with murder in the first degree.

Thus summarizing these were the dates and course of events; on October 9, 1949, Chester killed and buried Odis Johnson. On October 18, 1949, Chester gave up and on the same date a complaint was filed in magistrate court charging him with murder in the first degree. (The magistrate, incidentally, was the circuit judge who in 1965 heard this 27.26 proceeding, and the then prosecuting attorney was Tom B. Mobley and the circuit judge was the Honorable James V. Billings.) The transcript from magistrate court shows that while Chester’s preliminary hearing was set for October 27th, on October 21, 1949, he “waives preliminary hearing” and was bound over to the Circuit Court of Dunklin County. There is no other record of what transpired in magistrate court but Chester testified that he wrote to the reporter “and asked him for it (a transcript), he wrote back and asked me what I wanted with it, and I told him I figured it might help me get out of the pen, and I never did hear from him no more, and then I wrote again after it, and they told me he was dead and they didn’t know where the records was at.” On October 22, 1949, an information charging Chester with murder in the first degree was filed and on that same day he entered a plea of guilty and was sentenced to life imprisonment.

One other background matter, as it appears from this record, is that in 1949 Chester was forty-eight years old, and had a third grade education “near Hamilton, Alabama.” He said that he could read and write and count money but could not add or subtract. He had no prior criminal record other than being arrested at Osceola and Joiner, Arkansas, “a few times for being drunk.” There was no record of a mental examination except a 1958 intelligence test made in the Missouri penitentiary and that concludes “Intellectually, the subject is functioning within the borderline defective area of intelligence. I.Q. 76. His low performance on some of the subtest items in the intelligence test can be attributed more to the functions of poor cultural and educational background than lack of native capacity.”

The judgment entered on October 22, 1949, upon Chester’s plea of guilty, in addition to the sentence of life imprisonment for first degree murder, contains these recitals :

“Now on this 22nd day of October, 1949, comes the State of Missouri by the Prosecuting Attorney, and comes also the defendant in proper person in custody of the Sheriff in open court, but without counsel, the court having prior to the entrance of the defendant’s plea herein, given the defendant due and ample opportunity and time to talk with a friend and an attorney, and having informed the defendant of his right to counsel, and explained wherein exercise of said right (sic) be of benefit to the defendant, and having explained to the defendant the nature of the charge filed against him, and having found that the defendant was mentally able and sufficiently informed to decide as to his need for counsel; and
“2. The Court having offered to appoint counsel for the defendant to conduct his defense, but the defendant having specifically and expressly waived such right and asserted that he did not desire counsel.”

In this background is presented the question of whether Chester intelligently and understandingly waived his right to the assistance of counsel “at the time of his arraignment.” More precisely upon this particular record the question is whether he sustained his burden of showing, prima facie, that he did not intelligently and understandingly waive his right to counsel. Appellant’s present counsel points up the problem by these statements in his argument: “Admittedly the record of the judgment recites the contrary (intelligent waiver), and defendant-appellant must, therefore, overcome the presumption of regularity which attaches in favor of the judgment. The evidence presented at the hearing, uncontradicted by any evidence of the State, is sufficient to sustain defendant’s burden and to demonstrate that no court could lawfully have found an intelligent and understanding waiver of the right to counsel and entry of a guilty plea to the charge of first degree murder under the circumstances present in this case.” The appellant contends that upon this particular record, the state offering no testimony whatever, his “motion to vacate must be granted as a matter of law.”

In view of the disposition to be made of this particular appeal it is not necessary to consider all these matters in the detail that would be necessary in considering and determining the cause upon its merits or, as the appellant urges, deciding whether as a matter of law his motion to vacate should be sustained. In 1949, as well as now, murder in the first degree was a capital offense, the minimum punishment for which was life imprisonment. RSMo 1959, §§ 559.010, 559.030, V.A.M.S. This fact alone, at least for present purposes, distinguishes the two principal cases upon which the state relies, State v. Glenn, Mo., 317 S.W.2d 403, and State v. Kackley, Mo., 391 S.W.2d 350. Compare: Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. It is not necessary to elaborate upon the complexity of homicide in this jurisdiction, its degrees, its lesser and included offenses, its grades of punishment and defenses including the distinctions in excusable and justifiable homicide (RSMo 1939, §§ 4049, 4376, 4378-4381, 4391, 4844), that was done twenty-two years ago by the Supreme Court of the United States in two capital offenses, one murder in the first degree and the other robbery in the first degree. Tomkins v. State of Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398. In the murder case, Tomkins v. State of Missouri, the court briefly summarized the situation, “The nature of the charge emphasizes the need for counsel. Under Missouri law one charged with murder in the first degree may be found guilty of that offense, of murder in the second degree, or of manslaughter. Rev.Stat.1939, §§ 4376, 4844, Mo.R.S.A. The punishments for the offenses are different. §§ 4378, 4391. The differences between them are governed by rules of construction meaningful to those trained in the law but unknown to the average layman. The defenses cover a wide range. And the ingredients of the crime of murder in the first degree as distinguished from the lesser offenses are not simple but ones over which skilled judges and practitioners have disagreements. The guiding hand of counsel is needed lest the unwary concede that which only bewilderment or ignorance could justify or pay a penalty which is greater than the law of the State exacts for the offense which they in fact and in law committed.” And it is not necessary to elaborate upon the subject but by both ru'e and statute Missouri has always recognized that arraignment is indeed “a critical stage” in a criminal proceeding requiring the appointment of counsel not only in homicide cases but upon arraignment for any “felony.” RSMo 1959, § 545.820, V.A.M.S.; Criminal Rule 29.01. The limitation in both the rule and statute is that the court is only required to assign counsel at the “request” of the person arraigned. The rule and the statute have been modified recently by court decision and by practice in this respect but it is not necessary to go into those factors here. It is sufficient for the purposes of this case that the Supreme Court of the United States has said that “[wjhen one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted. Williams v. Kaiser, 323 U.S. 471, 475, 476, 65 S.Ct. 363, 366, 89 L.Ed. 398 [402] (a Missouri case) * * *. In this case, as in those, the degree of prejudice can never be known. Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.” Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed. 114. This may be sufficient to dispose of this case but as indicated it is neither necessary nor desirable upon this record as it now stands to dispose of this appeal upon its merits or as a matter of law.

The state offered no evidence, upon this hearing there was in fact but a single witness, the appellant. While there was a hearing on Chester’s motion to vacate there was no finding of fact, the court simply entered an order overruling the motion.

Insofar as it relates to the federal constitutional problem and Criminal Rule 27.26 Chester gave this testimony:

“Q. Did you have an attorney to represent you at any time? A. No, sir.
“Q. Did you ask that one be appointed?
“A. No, I didn’t, and I didn’t know that they’d appoint me one, when I went up before the Judge after I done told them I’d plead guilty, then they said—
“Q. After you told him you would plead guilty?
“A. Yes, sir. They told me if I wanted to stand a jury trial that the State would appoint me an attorney, and I told them—
“Q. What did you say to that?
“A. I told him, I says, ‘Well, I’ll just’ —just what I said, I said, T just as well take the rap and go ahead.’ He says, ‘Well, are you guilty of first degree murder?’ And I said, ‘Well, yeah, if that’s what you want me to say, I’m guilty.’ ”
“Q. Do you know now that there are several different types of homicide crimes in the State of Missouri?
“A. Well, I do now, yes, sir.
“Q. Did you know that then ?
“A. No, sir, I didn’t know it. I didn’t know very little about any kind of law, because I never had no education.”
“Q. Did you know the defenses that were available, defenses to murder that might make it manslaughter?
“A. No, sir, sure didn’t.”
“Q. And you pleaded guilty to first degree murder? A. Yes, sir.
“Q. And you didn’t have the advice of a lawyer at the time ?
“A. No, sir, I didn’t have no lawyer.
“Q. Were you aware that there might have been a lesser crime that you could be convicted of than first degree murder back then?
“A. Well, I didn’t know, I thought maybe that if I could have had a lawyer, the reason why they told me I was pleading guilty, that I didn’t have no lawyer.”
“A. No, I figured if I could have a lawyer that it would go easy, but the Prosecuting Attorney wouldn’t tell me nothing, only I asked him two or three times, and he said all that it would carry was a life or death penalty—
“Q. He said that was the only thing you could get?
“A. Yes, sir, and I was scared then of that penalty and figured maybe it might be better to just plead guilty to it, he had told me that if I pled guilty that I wouldn’t get the death penalty.
“Q. Did the court offer you a lawyer before they asked you to plead guilty or not guilty or was that afterwards?
“A. No, they never mentioned a lawyer.
“Q. Not until after ?
“A. Until after I was done and up there and pled guilty.”

On cross-examination by the prosecuting attorney:

“Q. Now, I want you to think back, Mr. Scott, did Judge Billings, at the time you pleaded guilty, tell you that he would appoint you a lawyer.
“A. Yes, sir. I thought I told that awhile ago. Yeah, after I pled guilty he said that the State would furnish me a lawyer if I wanted to stand a jury trial.
“Q. He told you that you could have a lawyer and you could have a jury trial?
“A. Yes, sir.
“Q. But you didn't want one? A. Yes, sir.”

Then there were these pertinent questions by the court and Chester’s answers:

“Q. Now, Mr. Scott, I wish you would tell me again just in your own way what you said happened on the day that you pleaded guilty before Judge Billings, can you tell us just what happened from the time your case was called ?
“A. When I got up there he asked me — before he ever said anything about an attorney, he says, ‘You’re charged with first degree murder. Are you guilty or not?’ And that’s when I told him, I said, ‘Well, yeah.’ I said, T killed a man, but I done it in self-defense, and being that I ain’t got money to hire a lawyer I guess I just as well take the rap and go ahead.’ And then he says, ‘Well, if you want’ — says, ‘The State will appoint you a lawyer if you want to stand a trial.’ And I told him then, I says, ‘No, I’ll just plead guilty.’ And he says, ‘Well, are you guilty of first degree murder?’ I says, ‘Well, yeah, if that’s what you want me to say, I’m guilty.’ And that’s all I remember about it.”
“Q. At the time that you told Judge Billings that you would plead guilty, did you know then that a lawyer might be of help to you?
“A. Well, I knowed that he might be, but I don’t know why I didn’t, how come me to go ahead and plead guilty to it. In fact, I was just scared until I didn’t know hardly what I was doing, on account they kept telling me about that life penalty, I didn’t know what the outcome of it might be.”

Upon this testimony “the petitioner had sustained (prima facie) his ultimate burden of proving that his plea of guilty was invalidly accepted as obtained without the benefit of counsel and that he did not waive his right to counsel” (Moore v. State of Michigan, 355 U.S. 155, 165, 78 S.Ct. 191, 197; 2 L.Ed.2d 167, 174; Hamilton v. State of Alabama, supra; Tomkins v. State of Missouri, supra; Williams v. Kaiser, supra) but, as a district court observed when the state “called no witness to rebut petitioner’s testimony,” “[t]he issue is to be determined against the totality of all the circumstances.” United States ex rel. Brown v. Fay, D.C., 242 F.Supp. 273, 278. The record here, containing only appellant’s petition, exhibits and testimony, and the court’s cryptic order is fragmentary at best and the cause is reversed and remanded to the end that instead of a piecemeal record all possible circumstances may be adduced (Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; United States v. Commonwealth of Pennsylvania, 3 Cir., 343 F.2d 447, 451-452) as “[a] judge can make certain that an accused’s professed waiver of counsel is understanding^ and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309. With a complete record of all known facts and circumstances, or such as can be fairly adduced after the lapse of seventeen years, this or any other court may with some degree of confidence determine whether the case falls within and is governed by the Hamilton, Moore, Tomkins and Williams cases or whether it may be controlled by the divided opinion in Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188, or even by the noncapital cases, Carnley v. Cochran, supra.

STOCKARD, C., concurs.

PRITCHARD, C, not sitting.

PER CURIAM.

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

All of the Judges concur.


author: HIGGINS, Commissioner.

text:
    The GERMAN EVANGELICAL ST. MARCUS CONGREGATION OF ST. LOUIS, a Corporation, Appellant, v. Esther ARCHAMBAULT et al., Respondents.
    No. 51701.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.

      Melville A. Ochsner, St. Louis, for appellant.
    Herman M. Katcher, Orville Richardson, W. Donald Dubail, Eugene H. Buder, Josephus Todd, St. Louis, for respondents.
   HIGGINS, Commissioner.

Appeal from an award of $37,000 in attorneys’ fees to certain respondents and against appellant.

A detailed statement may be found in a previous appeal, German Evangelical St. Marcus Congregation v. Archambault, Mo., 383 S.W.2d 704, but for the purposes of this appeal, a brief statement will suffice. Appellant, as owner of Old St. Marcus Cemetery in St. Louis, Missouri, and as trustee of a public charitable cemetery trust, sued respondents as representatives of the class of cemetery lot owners, and the Attorney General of Missouri as representative of the public interest, for a decree authorizing abandonment of the cemetery, removal of remains of persons buried there, and approval of sale of the fee simple title to the cemetery land free of all limitations imposed upon the use of the land for cemetery purposes. The trial court granted the relief requested but the judgment was reversed by the Supreme Court. Thereafter, certain respondents other than the Attorney General petitioned for attorneys’ fees for services rendered by their attorneys in the defense of the action and successful prosecution of the appeal. The award was entered in favor of petitioning respondents and against appellant “as trustee of the Old St. Marcus Cemetery.”

Respondents have moved to dismiss this appeal alleging that appellant’s jurisdictional statement fails to set forth facts demonstrating jurisdiction to be in the Supreme Court, and that appellant’s points relied on are mere abstract statements of law, all in violation of Civil Rule 83.05(b) (e), V.A.M.R. Appellant has moved for permission to amend the jurisdictional statement and points relied on in a manner that would leave no doubt as to compliance with the rule. Amendment of the brief in the respects noted is authorized, and the motion to dismiss is overruled. Loumar Development Co. v. Redel, Mo., 369 S.W.2d 252, 255[2],

Appellant says that an award of attorneys’ fees to certain respondents was improper because the Attorney General is the legal representative of public trusts and he cannot be allowed fees for such services. The Attorney General does, of course, represent the public and the public interest in respect to matters involving enforcement of public charitable trusts, Murphey v. Dalton, Mo., 314 S.W.2d 726, 730[1], 67 A.L.R.2d. 1278, and he is not entitled to attorney’s fees for such services. Thatcher v. City of St. Louis, 343 Mo. 597,122 S.W.2d 915, 918[4]; Ex parte Blackmon, 238 Ala. 369, 191 So. 356, 359 [4]. He does not, however, represent each and every member of the public, particularly where private interests exist, in which case “those with a special interest may enforce the trust, or a localized or grouped charity may be enforced by a class suit.” Dickey v. Volker, 321 Mo. 235, 11 S.W.2d 278,281 [3], 62 A.L.R. 858; Murphey v. Dalton, supra; Seitzinger v. Becker, 257 Pa. 264, 101 A. 650, 651[1]; Scott on Trusts 2d, § 391, p. 2758; Rest., Trusts 2d, § 391, p. 279.

Appellant, itself, did not consider the Attorney General to be the only necessary party in this action, but instead brought respondents into the suit alleging them to have similar interests with, and to be adequately and fairly representative of, all owners of rights of interment and perpetual care, and they proved their value and special interest by taking measures, including employment of counsel, necessary to preserve the trust against the effort of the trustee (appellant) to destroy it. Generally, beneficiaries in a charitable trust have a right to maintain suit to enforce the trust or prevent diversion of its funds, 10 Am.Jur., Charities, § 117, p. 670, and even though in Missouri the purchaser of a cemetery lot does not acquire an estate in fee but merely an easement or privilege of burial, Billings v. Paine, Mo., 319 S.W.2d 653, 656[4-6], Wooldridge v. Smith, 243 Mo. 190, 147 S.W. 1019, 1022[3], 40 L.R.A., N.S., 752, German Evangelical St. Marcus Congregation v. Archambault, supra, 383 S.W.2d 1. c. 710 [2, 3], lot owners (or their representatives) have such special interest as to justify respondents’ defense of the trust in the original suit. As said in Tracy v. Bittle, 213 Mo. 302, 112 S.W. 45, 49[4]: “The plaintiff, having near relatives buried in this graveyard, has a peculiar right in the maintenance of this public use and in preventing an obstruction to the public use. In such case he can maintain the action, * * The rule is well stated in Bogert, Trusts and Trustees, § 414, pp. 345, 346: “A case of somewhat similar type is that of a cemetery trust when regarded as charitable. There the lot owners, persons who are entitled to have their dead buried there, or who already have friends or relatives interred in the cemetery, all may be said to have a definite interest in the trust. Other members of the public may also receive benefit, through the opportunity to buy lots, or otherwise ; but the lot holders and others similarly situated are clearly already benefited and interested in the upkeep of the cemetery. Such interest may be regarded as sufficient to enable them to sue to compel execution of the cemetery trust.” These authorities show a clear entitlement in respondents to protect their special interests and to enforce the public cemetery trust by defending against appellant’s effort to invade and destroy it. See also 14 C.J.S. Cemeteries § 25, p. 85; Jackson, The Law of Cadavers, p. 362; Steele v. Rosehill Cemetery Co., 370 Ill. 405, 19 N.E.2d 189; Brown v. Hill, 284 Ill. 286, 119 N.E. 977, 980 [1-5]; Hertle v. Riddell, 127 Ky. 623, 106 S.W. 282, 15 L.R. A., N.S., 796; Mills v. Carolina Cemetery Park Corp., 242 N.C. 20, 86 S.E.2d 893, 899 [8] ; Smith v. Ladage, 397 Ill. 336, 74 N. E.2d 497, 500[7]; Seitzinger v. Becker, supra; Houston Cemetery Co. v. Drew, 13 Tex.Civ.App. 536, 36 S.W. 802, 805. Such rights have been particularly expressed as the right to protection of the grave after burial, Brown v. Maplewood Cemetery Assn., 85 Minn. 498, 89 N.W. 872; as including the instinctive right that the unity and integrity of the cemetery be preserved as a whole, Jackson, supra, p. 374; to have unsold portions of the cemetery maintained, German Evangelical St. Marcus Congregation v. Archambault, supra; to have funds be not devoted to other than cemetery purposes, 14 C.J.S. Cemeteries § 12, pp. 72, 73, Seitzinger v. Becker, supra, 101 A. 1. c. 651 [2], Clark v. Rahway Cemetery, 69 N.J.Eq. 636, 61 A. 261; to have trustees with an exclusive interest in advancing the beneficiaries’ interest, Powers v. Johnson, Mo. App., 306 S.W.2d 616, Cave Hill Cemetery Co. v. Gosnell, 156 Ky. 599, 161 S.W. 980, 983, Rest., Trusts 2d, § 170. The views of the Attorney General might conceivably conflict with those of respondents in respect to such matters of special interest, and respondents, in representing such interests, should be permitted counsel of their own choice. Murphey v. Dalton, supra, 314 S. W.2d 1. c. 731 [6],

Appellant contends also that the award of attorneys’ fees to respondents was improper because the “owners of rights of burial in non-perpetual care graves cannot demand * * * care and upkeep. And nothing was brought into Court out of which fees could be allowed. * * * There is no fund or res or subj ect matter in which owners of rights or interment have an interest out of which an allowance * * * can be made, and there is no res, fund or subject matter in which respondents can share.” Appellant develops these points by argument to the effect that owners of non-perpetual care rights do not have any interest in any perpetual care funds held by appellant and perpetual care rights do not have any interest in such funds for payment of fees because such funds were not preserved or litigated by respondents, and that payment from other than a fund would penalize the fee. Appellant concedes the propriety of an award of fees where money is paid into court out of which the allowance is made, quoting Leggett v. Missouri State Life Ins. Co., Mo., 342 S.W.2d 833, 936 [60, 61] : “It is the general rule, ‘well rooted in equitable principles,’ * * * that where one goes into a court of equity and takes the risk of litigation on himself, and successfully ‘creates, protects, or preserves’ a fund, 49 A.L.R. at p. 1153, or brings about the ‘creation, increase or protection’ of a fund, * * * in which others are entitled to share, those others will not be allowed to lie back and share the results of the successful labors without contributing their proportionate part of counsel fees. * * * The equitable way to apportion the expenses of counsel fees is to allow them against the fund. * * * However, counsel fees may properly be allowed, other circumstances permitting, when the interests of the party seeking the allowance are antagonistic to the one brought to account and compelled to pay a fund into court for distribution * * ⅜ »

Even though the preceding case, like many others, involved payment of attorneys’ fees from funds required to be paid into court, such allowances do not depend alone upon recovery of a fund or upon the existence of a res or subject matter which can be distributed or disbursed to the members of the class benefited. “It is a general principle that a trust estate must bear the expenses of its administration. It is also established by sufficient authority, that where one of many parties having a common interest in a trust fund, at his own expense takes proper proceedings to save it from destruction and restore it to the purposes of the trust, he is entitled to reimbursement, either out of the fund itself, or by proportional contribution from those who accept the benefit of his efforts.” Trustees v. Greenough, 105 U.S. 527, 532-533, 26 L.Ed. 1157. And the court’s discretion on such allowances is based on considerations other than recovery or salvation of a fund in Bogert on Trusts 2d, § 871, p. 102: “In suits to enforce the rights of trust beneficiaries the court exercises discretion as to the allowance of counsel fees and costs out of the trust property or from other sources. The primary consideration is the result of the litigation. Was the claimant successful in securing the relief he demanded? Did his conduct and that of his attorney protect or enhance the trust fund? Whose fault was it that the law suit was necessary ? These and similar questions determine whether the court will grant the request for counsel fees * * *. The applicant and his counsel must prove that they have performed a service to the trust in protecting and preserving the trust assets or in resisting an unjustified claim arising out of the trust administration.” Still another way of stating the general proposition is 90 C.J.S. Trusts § 284(3), pp. 407-410: “The fees of counsel employed by a cestui que trust to protect and preserve the trust estate may be allowed as a charge against the estate, where the trustee has failed to act, provided the counsel’s services were reasonably necessary and beneficial to the trust, and were for the common benefit, * * *. Costs and expenses of litigation may also be allowed to one or more beneficiaries who successfully maintain an action to recover or preserve the trust property for the benefit of all the beneficiaries under circumstances which would have entitled the trustee to reimbursement had he brought the action.”

Similar circumstances existed in City of St. Louis v. McAllister, 302 Mo. 152, 257 S.W. 425. The trustees of a public charitable trust sued the Attorney General alleging that due to changed conditions the object of the trust had failed and expenses absorbed an undue amount of income. Certain collateral heirs were permitted to intervene on the ground that they were necessary to resolution of all issues and it was held that the trial court abused its discretion in refusing counsel fees to the intervening parties. The court there relied on yet another statement of the rule in respect to such case, quoting 2 Perry on Trusts, 6th Edition: “ ‘ * * ° * where a suit arises between the trustees and the cestuis que trust, if there are any that can come into court, or the Attorney General and the trustees as to the establishing and administering of the charity, costs will be allowed to all parties, together with reasonable counsel fees or costs as between solicitor and client, out of the charity fund or estate.’” 257 S.W. 1. c. 426[l-3], And in Lang v. Taussig, Mo.App., 194 S.W.2d 743, the First Unitarian Church was among beneficiaries sued and it pursued matters in the litigation resulting in modification of the trial court’s judgment. Requested relief and counsel fees were denied and the reviewing court, in remanding the case for modification of the judgment and allowance of attorneys’ fees, said, 1. c. 748 [8]: “This is not a case where the claimant sought to obtain something as an heir, or to destroy the trust estate. The suit was brought by the trustees to obtain a construction of the will, the instrument creating the trust. That was the purpose of the litigation. The endeavors of the appellant were directed to that end, and unquestionably aided the court in arriving at a proper construction of the instrument. The claim of the appellant was under the instrument creating the trust as properly construed, not against it. Its endeavors were not solely for its own benefit. The fact that its endeavors served its own interests as well as the interests of the estate does not defeat its right to * * a reasonable attorney’s fee.” See also Ewing v. First Nat. Bank of Atlanta, 209 Ga. 932, 76 S.E.2d 791; Reed v. Eagleton, Mo., 384 S.W.2d 578, 589, 590 [4]; Merchants’ & Manufacturers’ Securities Co. v. Johnson, 8 Cir., 69 F.2d 940, 945 [7,8].

In this case appellant is the trustee of a public charitable trust and respondents are part of the beneficiaries and named as representative of all beneficiaries of the trust. Appellant’s action was to destroy the trust and respondents’ defense caused the trust to be preserved and enforced, action which benefited all beneficiaries. Appellant alone instituted the lawsuit which respondents were forced to defend or default, giving rise to the necessity of employing attorneys, and their efforts were a service to the trust in that they successfully resisted an unjustified attempt to destroy the trust. Respondents merely did that which they were required to do by appellant when it named respondents as class defendants. Their efforts and presence made it possible for the court to determine whether the trust should be terminated or continued, a matter of proper administration of the trust and one of special interest to respondents and the class they represented. City of St. Louis v. McAllister, supra, 257 S.W. 1. c. 427 [7]; Jesser v. Mayfair Hotel, Inc., Mo., 360 S.W.2d 652, 660 [5], 661 [6]; Barron and Holtzoff, Federal Practice and Procedure, Vol. 2, § 570.1, p. 338, Vol. 3, § 1197, pp. 65-67; Hornstein: The Salvage Factor in Counsel Fee Awards, 69 Harvard Law Review 658.

Specifically, as to allowances .depending upon recovery of a fund or existence of a res or subject matter out of which to pay the award, Barron and Holtzoff, supra, § 1197, p. 67, says : “But the fact that a party does not formally sue for a class and does not formally establish by litigation a fund available to the class is not the determinative factor. The allowance of extraordinary costs, ‘as between solicitor and client’ rests upon recognized equitable principles and may be made whenever the burden of litigation assumed by the prevailing party substantially benefits others who should in equity contribute to the expense.” This was the situation in Jesser v. Mayfair Hotel, Inc., supra, where plaintiff’s action in securing an injunction against the disposition of assets saved the trustee and other beneficiaries from an unlawful sale of assets. The court recognized that “[a] trust beneficiary who prevents a wrongful disposition of trust assets renders a benefit to the trust estate as much as the one who recovers back property wrongfully disposed of,” 360 S.W.2d 1. c. 661 [7], citing, among others, Leggett v. Missouri State Life Ins. Co., supra, which answers the argument of no funds out of which to pay, saying, “ * * * ability to pay is not material on the issue of a legal duty to pay in an action on a contract, or in an accounting * * 342 S.W.2d 1. c. 937, and Abrams v. Textile Realty Corp., Sup., 97 N.Y.S.2d 492, where plaintiff prevailed in a suit to enjoin an ultra vires act by the defendant corporation. It was contended (as here) that the suit created no fund or property out of which to pay fees, and in rejecting the argument the court said: “Hence, on the narrow issue of law as to ‘the right’ to an allowance, as distinct from issues of law and fact as to the amount of allowance, there is no relevance in an argument that this suit created no fund or property for Textile or its security holders, or that they or any of them would have been better off if the ultra vires act had been performed. The law cannot refuse to recognize as beneficial full observance of the law.” 97 N.Y.S.2d 1. c. 496 [1]. Also cited with approval in Jesser v. Mayfair Hotel, Inc., supra, was Holthusen v. Edward G. Budd Mfg. Co., D.C.Pa., 55 F.Supp. 945, 946 [2, 3]: “ * * * defendant argues that no allowances may be made because the suit was neither a representative action nor a derivative action * * * because there has been no ‘fund’ recovered against which such allowances may be charged. It is somewhat difficult to see, however, why these considerations should preclude the allowance of reasonable counsel fees and expenses. * * * To rule that a shareholder who recovers back * * * property wrongfully disposed of is entitled to recover his expenses and counsel fees, but that one who prevents such wrongful disposition originally is not so entitled, would establish a distinction tending to discourage a prompt, expeditious and comparatively simple method of restraining corporate abuses in favor of actions, often difficult, and costly, to remedy such abuses. With, respect to the necessity of a ‘fund’, there appears to be equally little reason to distinguish between property wrongfully disposed of * * * .and recovered * * *, and property which would have been wrongfully disposed of * * * but for a shareholder’s suit.” See also Allen v. Chase National Bank, Sup., 40 N.Y.S.2d 245, 251 [1]; Martin Foundation v. Phillips-Jones Corp., 204 Misc. 120, 123 N.Y.S.2d 222; Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 166, 59 S.Ct. 777, 83 L.Ed. 1184; Rolax v. Atlantic Coast Line R. Co., 4 Cir., 186 F.2d 473, 481 [7, 8].

Appellant cites in addition to Leggett v. Missouri State Life Ins. Co., Young v. Pressgrove, 355 Mo. 204, 195 S.W.2d 516, Wallace v. Fiske, 8 Cir., 80 F.2d 897, 107 A.L.R. 726, St. Louis Union Trust Co. v. Kaltenbach, 353 Mo. 1114, 186 S.W.2d 578, Tracy v. Martin, 363 Mo. 108, 249 S.W.2d 321, and St. Louis Union Trust Co. v. Fitch, 354 Mo. 638, 190 S.W.2d 215, in which allowances were made against or out of certain funds, but they do not hold that allowances for counsel fees cannot be made where no specific fund is brought into court; nor do they support appellant in its charge that an allowance of attorneys’ fees in this case would penalize the fee.

Under the authorities discussed it is clear that appellant’s argument that fees cannot be allowed in this case absent a recovered “fund” is without merit, and the circumstances satisfy the requirements necessary to an exercise of discretion by the court resulting in such an allowance. Appellant’s action as trustee would have destroyed the trust absent the successful defense made by respondents, which action preserved the trust, its property and funds, and the beneficiaries’ interest in them. Respondents had special interests which they protected because they and those whom they represented had burial rights and interments which would have been disturbed absent their forceful action. The benefits of the defense they were forced by appellant to make resulted to all of the class represented by respondents. Accordingly, it cannot be said that the court acted improperly in making an award of counsel fees for such successful defense of appellant’s lawsuit and attempted violation of its trust.

Finally, appellant says the fees allowed are excessive. Canon No. 12, Canons, Professional Ethics of the American Bar Association, and Civil Rule 4.12, V.A.M.R., say: “In * * * determining the amount of the fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; (2) whether the acceptance of employment * * * will involve the loss of other employment while employed in the particular case * * *; (3) the customary charges of the Bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (S) the contingency or the certainty of the compensation and (6) the character of the employment, whether casual or for an established and constant client.” These or similar criteria were accepted as the elements to be considered in fixing attorneys’ fees in Scheufler v. Continental Life Ins. Co., 350 Mo. 886, 169 S.W.2d 359, 363 [1-3]. See also Hornstein, The Counsel Fee in Stockholder’s Derivative Suits, 39 Col. Law Review 784, 811; Barron and Holtzoff, supra, § 570.1.

In this case the efforts of respondents’ attorneys brought to light that appellant had a contract to sell the cemetery for $760,000 for commercial development “conditional upon a favorable decree permitting abandonment of the cemetery.” They also developed that perpetual care funds for Old St. Marcus Cemetery and New St. Marcus Cemetery were intermingled and amounted to $627,000. There were also general and contingency reserve accounts, most of which were credited to the new cemetery. These money values are, of course, in addition to the immeasurable values of the sentiment surrounding the burial places of respondents’ dead which could never have been completely restored if appellant’s action had succeeded. The resolutions of appellant to abandon the cemetery were found to have been adopted in 1955 and 1956, several years before the action was filed. The efforts of respondents had to meet previous planning of appellant to abandon its trust, and they had to engage in considerable discovery in order to acquire information from records held by appellant. Such efforts produced evidence from which this court determined that the cemetery was not run down and abandoned in fact as alleged by appellant, but rather one which showed care to be given to many burial sites, held by a wealthy trustee, and in which nearly 20,-000 persons had been buried. They also adduced evidence to show that some 2,290 perpetual care contracts had been sold by appellant since 1929 and that interments continued until 1962 when St. Louis enacted an ordinance prohibiting further burials there. This was the type of action which, by its nature, produced unusual problems and questions to which answers are not generally available from knowledge and experience. The previous appeal and this appeal indicate considerable research in the law of cemeteries, class actions, pleading, equity, and constitutional law. Respondents met the requirement of produc-mg a successful result which in itself is some measure of the skill and competence of their lawyers. Respondents’ preparation took over two and one-half years and it is not surprising that their lawyers would testify to over 1,700 hours spent on the case, which is not to mention additional time spent on this appeal protecting the award of fees made to them.

There was evidence from which the court could find that Herman M. Katcher, attorney for respondents Hillig, Flynn, Wagner, Doerflinger, Donnelly, and Zeigenhein, spent 1,200 hours in connection with this case for which an award of $24,-000 was made; that Morton K. Lange, attorney for the same respondents, spent 330 hours for which $8,500 was allowed; that Donald Dubail, attorney for respondent Farbelow, spent 70 hours valued at $2,000; that Oscar E. Buder (now deceased), attorney for respondent Shelton, spent 40 hours and four days in court valued at $1,500; that Josephus Todd, attorney for respondent Schlagenhauf, spent 40 hours valued at $1,000, a total of $37,000. The average hourly rate amounts to less than $22 per hour. The rate of the award for the services of the principal lawyer, Mr. Katcher, is less than $20 per hour; the rate of the award for the services of Mr. Dubail is $28 per hour, and the awards for the services of Mr. Buder, Mr. Todd, and Mr. Lange are at the rate of $25 per hour. These charges are all within the evidence before the court on reasonable hourly charges where compensation is certain, and in this case the entitlement to fees was additionally burdened by being contingent upon success, another factor which the court could properly consider. Trautz v. Lemp, 334 Mo. 1085, 72 S.W.2d 104, 106 [11]; Smith v. Couch, 117 Mo.App. 267, 92 S.W. 1143, 1145; Brand v. Denson, Tex.Civ.App., 81 S.W.2d 111, 112 E3],

Appellant seems to say that some of the time the attorneys spent on this case' was not properly a part of the defense of its action. It is not demonstrated by appellant what, if any, time was not devoted to some expected aspect of the case, and the reasonableness of the extent of services claimed must necessarily be examined in the circumstances of the case as they developed and existed rather than in retrospect. Jesser v. Mayfair, supra, 360 S.W.2d 1. c. 664 [14],

It is said as well as it can be in Trustees v. Greenough, supra, 105 U.S. 1. c. 537, 26 L.Ed. 1157: “* * * the Circuit Court had the power, in its discretion, to allow * * * reasonable * * * counsel fees * * * in * * * causing it (the fund) to be subjected to the purposes of the trust. The allowances made for these purposes we have examined, and do not find anything therein seriously objectionable. The court below should have considerable latitude of discretion on the subject, since it has far better means of knowing what is just and reasonable than an appellate court can have. It is not shown in this case by the appellants that any of these allowances are excessive, or that the expenditures allowed were not fairly and honestly made.” See also Mercantile Trust Co. v. Muckerman, Mo., 377 S.W. 2d 355, 361 [5]; Reed v. Eagleton, supra, 384 S.W.2d 1. c. 590 [5].

Accordingly, the judgment is affirmed.

HOUSER, C., concurs.

WELBORN, C., not sitting.

PER CURIAM.

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

All concur.


author: HENLEY, Judge.

text:
    Sylvester SMUGALA, Appellant, v. Vincent CAMPANA, Respondent.
    No. 50967.
    Supreme Court of Missouri, Division No. 1.
    July 11, 1966.
    Donald S. Hilleary, Clayton, for appellant.

      Morris, Wuestling & James, William F. James, St. Louis, for respondent.
   HENLEY, Judge.

This is an action for $40,000 damages for personal injuries. Plaintiff, a passenger in the automobile of defendant, was allegedly injured when defendant’s automobile collided with the rear of another automobile. Judgment was for plaintiff for $850, from which he appeals. One of his two assignments of error is that the trial court abused its discretion in denying him a new trial on the ground that the verdict was grossly inadequate. The amount in dispute is the difference between that sued for and the amount of the verdict and judgment, or $39,150. Miller v. Harner, Mo., 373 S.W.2d 941, 942 [1], This court has jurisdiction because the amount in dispute exceeds $15,000. Article V, § 3, Constitution of Missouri, V.A.M.S.; § 477.040, RSMo 1959, V.A.M.S.

On Wednesday morning, April 12, 1961, plaintiff and defendant, both employees of Sodemann Heat and Power Company, were enroute in defendant’s automobile to Monsanto Chemical Company where they were to work that day. Defendant was driving and plaintiff was sitting on the right hand side of the front seat. While defendant was driving south on Lindbergh Boulevard approaching its intersection with Brown Road in St. Louis County, his automobile collided with the rear of an antomobile stopped by a traffic light. Anticipating the collision, plaintiff braced himself with his feet on the floor and his hands on the dashboard. At impact, his body bent slightly forward from the waist but struck no part of the automobile. After the collision, plaintiff and defendant proceeded to their place of employment, where plaintiff worked the balance of that day and the whole of the next day, doing light work on the suggestion of his foreman. On Thursday evening, plaintiff went to his family doctor complaining of pain in his back. On the following Monday he was sent by his doctor to an orthopedist who examined and hospitalized him at DePaul Hospital where he remained for the next seven days. The hospital record shows a diagnosis on admission of: “acute back strain and a questionable chip fracture [of the second lumbar vertebra] with a definite limitation of motion [in the back and lower extremities], where he experiences severe pain on extension, and rigidity of the back muscles.”

Plaintiff contends that as a direct result of the collision he sustained an acute back strain and a “possible” fracture of the first and second lumbar vertebrae, which caused him to incur medical and hospital expense of $574.45 and lose wages in the sum of approximately $1,100; that the verdict of $850 not only fails to compensate him for that expense but fails to award him anything for his pain, discomfort and permanent injury; and, that the verdict was so grossly inadequate as to indicate bias and prejudice against him by the jury. He further contends that for these reasons the court erred in not granting him a new trial on all issues or on the issue of damages alone. Defendant contends that a consideration of the evidence pertaining to the extent of plaintiff’s claimed injuries and damage demonstrates that there was a question for the jury in the first instance, and for the trial judge on motion for new trial, as to whether plaintiff received the injuries alleged or suffered the damage allegedly resulting therefrom in this collision; and, that the trial court did not abuse its discretion in overruling plaintiff’s motion for new trial.

Plaintiff, aged 34 years at the time of trial in March, 1964, testified: that he was, and had been for several years, a sheet metal worker; that his employment as such required him to handle, fabricate and install sheet metal ducts for installation of air-conditioning equipment, guttering and furnaces, and to handle and lift heavy objects; that he had been steadily employed by the Sodemann Company for about five years before this automobile accident, but was now unemployed; that at the end of the day of this accident his back was sore and he was suffering pain although he had done only-light work; that on Monday, after the collision on Wednesday morning, he entered DePaul Hospital suffering considerable pain in his lower back; that he was in the hospital seven days and received heat therapy treatments and “rubdowns”; that he was fitted with a back brace or belt in the nature of a corset which he wore part-time while in the hospital and part-time after he returned to work; that on his release from the hospital he did not immediately go back to work but stayed at home; that he was released by his doctor to return to work and did return to his employment on May 2, but performed only light work.

He had suffered two prior injuries to his back, one in 1955 or 1956, and the other within a year before this collision. He testified that he received medical attention for both, but lost no time from work because of those injuries. He further testified that he had a stomach ulcer for which he was on medication at the time of this accident; that the ulcer had been dormant for several years and was aggravated by the automobile accident of April 12, as a result of which he has been and is highly nervous.

On May 9, about a week after he returned to work, he injured his back again while correcting his small son and was hospitalized therefor from May 11 to 17. He returned to his employment on June 26, doing only light work until he was “laid-off” on August 12; this was a general “lay-off” of employees by his employer for lack of work. He was unemployed until August 23, during which period, he says, he worried about this and the previous periods of unemployment and lack of income. He further testified that he went to work for Ryan Heating Company on August 23, and shortly thereafter became very tense and nervous because of worry; that he suffered a nervous breakdown and was hospitalized thirty-six days at Alexian Brothers Hospital; that he still suffers from this nervous condition and that as a result of this condition and his back injury he is unable to perform his usual work. After release from Alexian Brothers he injured his back again while picking up his son, and was unemployed until April, 1962.

On cross-examination, plaintiff testified: that he was released by his doctor to return to work shortly after his first hospitalization, probably about April 24, 1961; that he has had no treatment for his back condition since his hospitalization for the injury received at his home in May, 1961; and, that for about a year before this automobile accident he received treatment from a doctor for a nervous condition.

The records of DePaul Hospital for the hospitalization resulting from the injury at his home notes the April injury and then mentions that plaintiff had been having nervous spells for about a year, that he had a nervous attack the day before and “forgot all about the back pain.” The hospital X ray report shows: “No bony destruction was demonstrated. The intervertebral spaces are preserved. No evidence of fracture.”

Dr. Donald E. Callahan, a physician specializing in roentgenology, testified on behalf of plaintiff that at the request of the latter’s family doctor he took X rays of plaintiff’s lower back on April 14, 1961. He identified these X rays at the trial and testified that one view showed what appeared to him to be a slight deformity of the first lumbar vertebra, but that there was no evidence of fracture; that L-l “is down just a little bit in front * * * suggestive of an injury * * * called a compression fracture.” On cross-examination, Dr. Callahan testified that he had seen later X rays taken by another of plaintiff’s lumbar vertebrae showing no change in L-l; that he now considered it highly questionable whether plaintiff had received a compression fracture; that because the later X rays showed no change in condition he is of the opinion the deformity he saw would not be disabling; that he does not now think that what he at first considered to be a compression fracture could have been the result of ail injury received two days before April 14, 1961; and that it is possible that the deformity he saw was the result of an injury that occurred as much as four to six years before the collision.

Dr. Harold E. Walters, a physician and surgeon, testified on behalf of plaintiff that he examined plaintiff in October, 1961, and in January and October, 1963, but did not treat him; that on each occasion his complaints were of pain and soreness in his lower back; that plaintiff gave him a history of a fracture of the first lumbar vertebra received in a collision in April, 1961; that he found tenderness of the soft tissues on both sides of the upper lumbar vertebrae; that plaintiff was able to move his back and legs through normal range, but in doing so complained of discomfort in the lumbar area; that his X rays revealed a mild curvature of the back with some arthritis, but no evidence of a fracture. On cross-examination, the doctor testified that he found no signs of muscle spasm or rigidity, and found “nothing objectively wrong with him [that would] account for his complaints”; that he found no objective sign of injury; that he was informed of plaintiff’s history of an ulcer and hospitalization for nervousness, but that plaintiff did not complain to him that the ulcer was aggravated as a result of the April, 1961, automobile collision.

Dr. Henry E. Lattinville, a physician specializing in neurosurgery, testified on behalf of defendant that he examined plaintiff at defendant’s request in January, 1963; that plaintiff’s complaints were: that he had recurrent attacks of pain in his back from an April, 1961, automobile collision; that the pain would subside for a day or two only to recur several days or a week or two later; that he was still fearful he would incur a snapping of his back again, causing him to fall and injure himself; that plaintiff made no complaints of nervousness. He further testified that he made a complete neurological examination, including X rays and tests to determine whether there was any impairment of the lower back; that he found no objective evidence of injury; that the X rays did not show any evidence of bone involvement. On being informed that plaintiff claimed that he had been suffering from extreme nervousness since the summer of 1961, the doctor further testified that he found no neurological signs that could account for plaintiff’s nervousness, and no signs of disability as a result of nervousness. In reply to a hypothetical question on cross-examination, the doctor testified that there was no causal relationship between the automobile collision and plaintiff’s hospitalization for nervousness at Alexian Brothers Hospital.

There was no medical evidence that the automobile collision aggravated the preexisting ulcer.

There is some conflict in the evidence as to the cause and extent of plaintiff’s alleged injuries and his damage allegedly resulting therefrom. However, it is obvious that there is little, if any, conflict in the medical evidence. Our function is not to decide such conflict as exists; it is to determine whether defendant’s theory is supported by substantial evidence. In Mitchell v. Mosher, Mo., 362 S.W.2d 532, 536 [2-4], this court stated: “In considering whether the trial court erred in overruling plaintiff’s motion for a new trial predicated upon inadequacy of the verdict, the appellate court' views the evidence in the light most favorable to the ruling of the trial court. Polizzi v. Nedrow, Mo., 247 S.W.2d 809, 811; Glore v. Bone, Mo., 324 S.W.2d 633, 635 [3]; Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 728 [2], [3]. The appellate court, unlike the trial court, does not weigh the evidence. Rather, it seeks to ascertain only whether the trial court abused its discretion in ruling as it did. In other words, was there substantial evidence to support the verdict? ‘Substantial evidence to support the verdict’, as that phrase is applicable to the question here presented, requires determination of whether the amount of damages awarded is responsive to the evidence; and where the jury, as in this case, has found liability, it is also the jury’s duty to award plaintiff damages commensurate with the personal injuries and other compensable loss sustained by him.”

Neither Dr. Walters nor Dr. Lattinville found on examination of plaintiff any evidence of fracture of any portion of plaintiff’s lower back. As we interpret the testimony of all three doctors, none found any objective evidence on which he could base a finding that there was any causal relationship between the automobile collision of April 12, 1961, and plaintiff’s alleged “possible” fracture of lumbar vertebrae and back strain, or his nervous breakdown or his complaints of nervousness, pain and suffering. Our conclusioii is that the medical evidence adduced by defendant, and the medical evidence adduced by plaintiff, constituted substantial evidence that neither the major portion of plaintiff’s medical expense nor any appreciable portion of the injuries and damage of which he complains was attributable to such injury as he may have sustained in this collision.

The jury may well have found the evidence of injury and damage to be as related by the three doctors. We cannot say that the verdict was grossly or shockingly inadequate in the light of this evidence. The trial court, whose duty it was to weigh the evidence in ruling this assignment in the motion for new trial, did not so find. There was no abuse of discretion on the part of the trial court in this respect.

Plaintiff’s second assignment is that the court erred in failing to grant him a new trial for the reason that one of the jurors was biased and prejudiced against him because the juror heard plaintiff’s neighbor state “that plaintiff had a violent temper and took it out on his kids”; and that he was thereby denied the deliberation of twelve impartial jurors.

This assignment of error in the motion for new trial was supported by the affidavit of Ann O. Swofford, one of the jurors, stating that: “After the trial was over I heard Ralph H. Schroeder [another juror] state that he has been told by a neighbor of Mr. Smugala’s that Mr. Smug-ala had a violent temper and was rough on his wife and kids.” Over the objection of defendant that the testimony would be inadmissible because it would be hearsay and because a juror may not be heard to impeach his verdict, the court heard the testimony of Mrs. Swofford offered by plaintiff in support of his motion. Mrs. Swofford testified: that she heard Mr. Schroeder make the above statement after the jury completed its deliberations and had returned its verdict, that it was after they had returned from lunch to the jury’s assembly room to await a call to try another case; that Mr. Schroeder did not impart this information to any of the jurors during their deliberations. This was a ten-man verdict not signed by Juror Schroeder.

The well-founded and long-established rule, based on sound public policy, is that the affidavit or testimony of a juror is inadmissible and is not to be received in evidence for the purpose of impeaching the verdict of a jury. Woehler v. City of St. Louis, 342 Mo. 237, 114 S.W.2d 985, 987 [4], and cases there cited; Cook v. Kansas City, 358 Mo. 296, 214 S.W.2d 430, 433-434 [9-11]. And it matters not whether the juror from whom the impeaching evidence may come concurred in or dissented from the verdict. Davis v. Kansas City Public Service Co., Mo., 233 S.W.2d 669, 676 [6] and cases there cited. The court erred in admitting this evidence, but plaintiff may not have the benefit of error favoring him and for which he was the sponsor. Although heard by the trial court, we may not for the reasons above stated, consider this evidence in ruling this assignment. Woehler v. City of St. Louis, supra. We hold that the court did not err in failing to grant plaintiff a new trial on the grounds stated in this assignment of error.

The record does not indicate whether the trial judge considered this evidence in overruling plaintiffs motion for new trial; it may very well he that he did not, for he stated that he agreed with the grounds of defendant’s objection but would hear the evidence to see what it might develop. There was no evidence that during the deliberations of the jury, Juror Schroeder had the information he imparted to Juror Swofford after the verdict was reached and the case closed, or that he was at any time prejudiced against plaintiff by reason of that information. But assuming that the trial judge did consider it, we could not say that on this limited and inapposite evidence he did not exercise a sound judicial discretion in overruling the motion. Wood v. Claussen, Mo.App., 207 S.W.2d 802, 812 [13] ; Davis v. Kansas City Public Service Co., supra, 233 S.W.2d 1. c. 676 [8].

The judgment is affirmed.

All concur.