author: BOHLING, Commissioner.

text:
    Arthur R. HANFF, Appellant, v. ST. LOUIS PUBLIC SERVICE COMPANY, a Corporation, John W. Fletcher, McNamara Motor Express, Inc., a Corporation, and Vincent Palazzolo, Respondents.
    No. 48417.
    Supreme Court of Missouri, Division No. 2.
    April 9, 1962.

      John L. Rooney, Rooney, Webbe & Davidson, St. Louis, William L. Mason, Jr., St. Louis, for appellant.
    Donald L. Schmidt, St. Louis, for respondents St. Louis Public Service Co. and John W. Fletcher.
    C. M. Kirkham, Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, St. Louis, for respondents McNamara Motor Express, Inc. and Vincent Palazzolo.
   BOHLING, Commissioner.

Arthur Hanff sued the St. Louis Public Service Company, a corporation sometimes designated as Service Company, and John W. Fletcher, and McNamara Motor Express, Inc., a corporation sometimes designated as Express Company, and Vincent' Palazzolo for $40,000 damages for personal injuries sustained while a passenger on one of Service Company’s streetcars operated by defendant Fletcher in a collision with the trailer of a tractor-trailer unit of the Express Company operated on a mission for it by defendant Palazzolo. The court sustained the motion of defendants Express Company and Palazzolo for a directed verdict at the close of plaintiff’s case. Plaintiff submitted his case against defendants Service Company and Fletcher under the res ipsa loquitur theory. There was a verdict and judgment for said defendants. Plaintiff on this appeal contends the court erred in sustaining said motion for a directed verdict and in giving instructions on behalf of defendants Service Company and Fletcher,

The collision occurred on Olive, some distance west of its intersection with Lef-fingwell, streets in the City of St. Louis, about 9:30 a. m., September 21, 1959, “a real nice day,” as the streetcar was passing the tractor-trailer unit. Plaintiff contends a case was made against the Express Company and Palazzolo on the theory Palazzolo swerved the tractor to the right and caused the left rear end of the trailer to move to the left and collide with the streetcar where its widest point began back of the front end as it was passing the trailer.

Plaintiff called defendants Palazzolo and Fletcher and Officer Samuel Loduca as his witnesses.

Olive Street has three lanes for traffic each way; a curb lane, a middle lane, and the streetcar tracks. From about 170 feet west of Leffingwell there is a slight downgrade to Leffingwell. A safety zone, estimated by defendant Fletcher to extend about 100 feet west of Leffingwell, is at the center of the street, marked by painted lines and by buttons.

Palazzolo, John Carter also in the cab, was southbound on Ewing, a “two-way” street a block west of Leffingwell, and saw the streetcar about two blocks to the west while stopped at Olive Street. He turned left to go east on Olive.

The streetcar was 44 or 46 feet long. Its windshield was approximately 6 feet wide, and the car tapered outwardly to a width of 9 feet at the rear of the front door, 6 or 7 feet behind the front end. Its overhang was estimated at 24 inches.

The trailer was estimated to be 40 feet long, 6 or 8 feet wide, and the overall length of the unit to be 50 feet. The outsides of the tires are even with the sides of the trailer. The tractor extends underneath the trailer.

Palazzolo proceeded eastwardly in the middle lane in low gear, pulling a 20,000 pound load, and parallel with and about 11 inches south of the track. He did not remember getting onto the track, but if he did he gradually got back to the south. The tractor cab seat is high. He could see, over the cars ahead, the electric traffic signal to his right change to red and stopped back of some automobiles, a short distance west of the safety zone, with the rear end of the trailer closer to the track than its front end.

Defendant Fletcher testified the tractor-trailer’s speed was 3 or 4 miles an hour and the streetcar’s was 6 or 7 m. p. h., and that when the streetcar was 10 or 15 feet behind the trailer the two vehicles were still moving at the same speeds, with the tractor-trailer parallel with the track. Fletcher estimated the streetcar had 3 or 4 inches to clear the tractor-trailer. He “accelerated” the speed of the streetcar a little and started to pass the tractor-trailer unit.

The left rear end of the trailer and widest part of the streetcar collided as the streetcar was passing the trailer. The damage to the streetcar commenced where its widest point began, a glancing blow on the rear of the front door jam, extending back and becoming deeper for about 5 feet or so.

Fletcher testified that after the collision the streetcar traveled 14 or 15 feet, and stopped with its front end 12 or 14 feet past the rear of the trailer; that the tractor-trailer traveled 4 or 5 feet; that the front of the tractor was then about 20 feet west and the front of the streetcar was about 57 feet west of the safety zone; and that the left rear end of the trailer was about 2 or 3 inches south of the streetcar. He estimated that the left front corner of the trailer was about 4 feet south and the left front of the tractor was about 7 or 8 feet south of the track.

There was no probative evidence that Fletcher sounded the bell or warned of the streetcar’s approach.

Defendant Fletcher testified on direct examination: “The front end of the streetcar got past and then I heard a noise, and I looked and the tractor had pulled to the right.” He then testified in answer to a double question whether the tractor had turned to the right, south, and then part of the streetcar door and the left rear of the trailer collided: “That’s correct.” On cross-examination by his counsel he testified that the tractor-trailer pulled to the right after he started to pass and “in, just a few seconds” the collision occurred. He testified the truck was not moved toward the track.

Palazzolo testified he did not turn his unit in any direction; that he had been at a dead stop from the time the traffic light changed from amber to red until it was changing to green just about when the collision occurred.

Plaintiff had the burden of establishing that Palazzolo was negligent in swerving the tractor to the right or south and that such negligence proximately contributed to the collision and plaintiff’s injuries. Ledkins v. Missouri-Kansas-Texas Rd. Co., Mo., 316 S.W.2d 564, 568 [5].

Plaintiff cites two cases, Burnett v. St. Louis Pub. Serv. Co., Mo., 337 S.W.2d 921, 923 [2], and Highfill v. Brown, Mo., 320 S.W.2d 493, 495. The Burnett case is cited on the theory that plaintiff “can call the drivers of both vehicles in his case, and thereby make a case against either or both, though their evidence conflict, so long as he seeks to go on no theory developed from such evidence which conflicts with his own personal testimony and fundamental theory.” Defendant does not question this. The Highfill case is cited on the theory that “if the driver of a vehicle causes it to move to the left just as another vehicle is passing him on the left, there is a jury question of his negligence.” That case went to trial upon plaintiff’s claim and defendant’s counterclaim, and involved a left turn ácross the highway by defendant’s car, the first in a line of three, and a collision with plaintiff’s car while in the act of passing said line of cars. These cases do not establish negligence on the part of Palazzolo under the facts disclosed by this record.

Plaintiff, on direct examination, testified he did not know what caused the collision. But, on cross-examination by counsel for these defendants, he testified: “Q Do you remember telling the doctor at the hospital, or telling any one at the hospital when you were admitted to the hospital that you were riding a streetcar which ran into the rear of a stopped truck? A That’s right, sir. That’s how come it happened. That’s what I seen.”

We think under the record before us that the evidence with respect to the tractor moving to the right or south did not remove from speculation and conjecture that such movement caused the left rear end of the trailer to swerve and resulted in the widest part of the streetcar striking the left rear end of the trailer. The distance the tractor traveled and the angle with the trailer in which it moved would have a bearing and effect on whether the left rear end of the trailer would move north beyond the line of travel of the tractor-trailer unit. Plaintiff did not establish by substantial testimony what effect the swerving of the tractor to the south had upon the left rear end of the trailer. The noise directed Fletcher’s attention to the situation. He did not see the trailer move to the north.

Plaintiff states Officer Loduca’s measurements showed that after the collision the front of the tractor-trailer was 5½ feet north of the south curb of Olive and the rear 8 feet north of said curb. The officer so stated; but when he was questioned about his diagram he testified that the measurement showed the right front corner of the tractor-trailer was 15 feet 5 inches north of the south curb of Olive. His testimony shows that after the collision the tractor-trailer was approximately parallel with the track, and was off in its 50 feet of length only 2feet from being parallel with the track. This does not make plaintiff’s case. There was traffic in the curb lane at the time of collision.

At one place Fletcher testified this 3 or 4 inch clearance was between the front of the streetcar and the rear of the trailer; and one would not have that clearance at the rear of the streetcar’s front door: “Q So it was less than 3 or 4 inches back there that you had room to spare, wasn’t it? A Yes, sir. Q In fact, there just wasn’t room, was there? A Well, there wasn’t room to clear.” He stated later he misunderstood these inquiries of counsel.

Plaintiff in his brief argues that it is a commonly known fact and judicial notice should be taken that when the tractor of a tractor-trailer unit “is swung to the right, the left rear of the tractor [plaintiff means trailer] swings to the left.” We think not. Plaintiff, in attacking one of the Service Company’s instructions, states in his motion for new trial that there was no competent and believable evidence that “a turn of the tractor-trailer to the right did cause or could cause the said vehicle to swing to the left; all evidence to this effect being contrary to the law of physics known to the court and of which the court should take judicial notice.”

Plaintiff has not established error in the direction of a verdict for defendants Express Company and Palazzolo.

Plaintiff testified he was seated by the window in the third seat from the front door of the streetcar, on the right hand or door side. Mrs. Juanita Graw, a passenger on the streetcar at the time and a witness for the Service Company and Fletcher, testified that she and a Mrs. Marcus occupied the third cross seat from the front of the streetcar on the right hand side; that two ladies were in the seat ahead of her, and that there was no man in the first cross seat.

Plaintiff stated that when the collision occurred he went forward and backward and felt his back snap; that he was not thrown from his seat and his hat was not thrown off; that he did not remember but his hand may have struck the seat ahead. The police took him to the City Hospital. He had a serious backache. He testified to two previous injuries to his back, but had recovered from them. Mrs. Marie Lewis, a witness for the Service Company and Fletcher, testified she was a nurse and housekeeper at the home where plaintiff was staying at the time of the collision; that plaintiff “was laid up,” “wasn’t able to work,” “complained quite a bit,” before and up to the time of the collision; that plaintiff wasn’t a very good worker.

Plaintiff contends for the first time in his brief here that instruction-No. 2 was erroneous in submitting “ordinary care” as the standard for defendants Service Company and Fletcher because they were under a duty to use the highest degree of care to transport him safely. Defendants say the instruction was not erroneous when considered as a whole and, furthermore, plaintiff’s point is not for review under Civil Rule 79.03, V.A.M.R., providing, so far as material: “If any specific objections to instruction have not been made at the trial before submission to the jury, then such specific allegations of error in instructions must be set forth in the motion for new trial to preserve the error for review.” Plaintiff’s said objection was not presented to the trial court at the trial or in plaintiff’s motion for new trial and has not been preserved for reveiw. Adair v. Cloud, Mo., 354 S.W.2d 866; and Overton v. Tesson, Mo., 355 S.W.2d 909 (cases handed down March 12, 1962) ; Sullivan v. Hanley, Mo.App., 347 S.W.2d 710 [1], See also Rule 70.02.

Plaintiff attacks instructions Nos. 4 and 5, which were alike except that the first related to defendant Fletcher and the other to defendant Service Company. The first paragraph of each informed the jury that the burden of proof was on the plaintiff. Plaintiff’s main complaint attacks the italicized portion of the second paragraph of the instruction, reading:

“You should not find that the defendant John Fletcher was negligent from the mere fact of the occurrence shown by the plaintiff’s evidence, if you find and believe from all the credible evidence in the case that said defendant was not negligent, and if you so find and believe from the credible evidence in the case that said defendant was not negligent, then your verdict should be in favor of the defendant John Fletcher.”

Plaintiff’s verdict directing instruction, so far as material here, required findings by the jury “that a collision occurred between the said streetcar and a tractor-trailer at the time and place shown to you in the evidence; and * * * that Arthur R. Hanff sustained injuries to his person as a direct result of the said collision; then you are instructed that such facts (if you believe them to be true) are sufficient evidence to warrant a finding by you that the defendants John W. Fletcher and St. Louis Public Service Company were negligent, and you may so find, unless you find and believe from other facts and circumstances in evidence (if any) that the occurrence was not due to the said defendants’ negligence * *

Instructions informing the jury “that the mere fact” mentioned in the instruction is “no evidence whatever that defendant was in fact negligent,” differ from instructions Nos. 4 and 5. Citizens Bank of Festus v. Missouri Natural Gas Co., Mo., 314 S.W.2d 709, 714 [3], 72 A.L.R.2d 855 (“that there was a fire” in premises owned by plaintiff and that plaintiff had brought suit) ; Paige v. Missouri Pac. R. Co., Mo., 323 S.W.2d 753, 759 [9] (“that plaintiff was injured and has brought suit claiming that defendants were negligent”). Grote v. Reed, Mo., 345 S.W.2d 96, 99 [1-3], reviews a number of. the cases.

Harke v. Haase, 335 Mo. 1104, 75 S.W.2d 1001, 1004, and other cases approve the following from Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815, Ann.Cas.l914D, 905: “* * * [R]es ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict.” The facts of a res ipsa case do not compel the inference of negligence. Liebow v. Jones Store Co., Mo., 303 S.W.2d 660, 662 [1, 2]; Turner v. Missouri-Kansas-Texas R. Co., 346 Mo. 28, 142 S.W.2d 455, 460 [9,10], 129 A.L.R. 829; Duncan v. St. Louis Pub. Serv. Co., 355 Mo. 733, 197 S.W.2d 964, 966.

Instructions Nos. 4 and 5 are in words approved in Harke v. Haase, supra, and other cases. See Stephens v. St. Louis Pub. Serv. Co., Mo., 276 S.W.2d 138, 142 [5].

Plaintiff’s witnesses defendants Fletcher and Palazzolo testified to the facts involved in the collision of the streetcar and the trailer. Direct testimony established plaintiff’s injuries. The nature and extent of his injuries did not further explain the occurrence or afford additional circumstances supporting the inference of negligence. The word “occurrence” in plaintiff’s instruction and in defendants’ instructions had the same meaning. A defendants’ verdict would be proper upon a finding from all the evidence “that the occurrence was not due to the said defendants’ negligence.” The recent case of Goldblatt v. St. Louis Pub. Serv. Co., Mo., 351 S.W.2d 773, after a review of the authorities, is in accord. Plaintiff’s contention is overruled.

Plaintiff also contends that the giving of instructions Nos. 4 and 5 overemphasized that plaintiff had the burden of proof, citing Miller v. Williams, Mo., 76 S.W.2d 355, 357 [7] and Tinsley v. Massman Const. Co., Mo., 270 S.W.2d 835, 841. The trial court upon objection at the close of the evidence indicated both instructions would not be given but, as plaintiff states, whether inadvertently or not, the record shows both were given. The Miller case did not rule that two instructions on the burden of proof constituted reversible error. See West v. St. Louis Pub. Serv. Co., 361 Mo. 740, 236 S.W.2d 308, 311 [3, 4], Repetition, without more, in instructions is generally considered not reversible error and to rest in the discretion of the trial court. West and Tinsley cases, supra; Leathers v. Sikeston Coca-Cola Bottling Co., Mo.App., 286 S.W.2d 393, 397 [7, 8]. The trial court overruled plaintiff’s motion for new trial in which he renewed this objection; and we find no manifest abuse of its discretion in such ruling.

Instruction 10, purporting to be a falsus in uno, falsus in omnibus instruction, concluded as follows: “ * * * if you believe that any witness has knowingly sworn falsely to any fact or facts material to the issues in this case, then you may reject such portion of the testimony as you believe to be false, if any, and you may reject all other portions of such witness’s testimony.” Plaintiff says the word italicized above permitted the jury, notwithstanding they might have believed defendant Fletcher (plaintiff’s witness) knowingly gave false testimony, to nevertheless believe such testimony to the prejudice of plaintiff. Plaintiff cites Fitzpatrick v. St. Louis-San Francisco R. Co., Mo., 327 S.W.2d 801, 807, 808, 80 A.L.R.2d 825, which was concerned with courtroom misconduct calculated to create sympathy and prejudice. It contained no ruling involving nondirection or misdirection in an instruction, and does not establish the error presented. Plaintiff’s contention appears ruled against him in Rossomanno v. Laclede Cab Co., Mo., 328 S.W.2d 677, 680 [2-6], citing cases and stating in part: “A so-called falsus in uno, falsus in omnibus instruction which merely authorizes the jurors to disregard testimony which they believe to be false are useless declarations of the obvious, but they are not prejudicially erroneous.” In overruling plaintiff’s motion for new trial the trial court approved the instruction as not prejudicially erroneous. West v. St. Louis Pub. Serv. Co., Mo., supra, 361 Mo. 740, 236 S.W.2d 308, 313 [13]. We find no occasion to interfere.

Defendants say, with respect to each point in plaintiff’s brief not hereinbe-fore developed, that the issue sought to be raised in his brief was not presented to the trial court at the trial or in his motion for new trial. Plaintiff has filed no reply brief, has not answered these contentions of defendants, and our examination of the record with respect to the matters involved, which relate to the instructions, sustains defendants’ position. We are of the view they present no manifestly prejudicial error materially affecting the merits of the action. In these circumstances what we have said hereinbefore with respect to instruction No. 2 is applicable.

The judgment is affirmed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Albert E. CARLSON, Appellant, v. The FIRST NATIONAL BANK OF KANSAS CITY, Missouri, a Corporation, Carl A. Carlson, Laura Carlson, Jack Allan Carlson and Elmer W. Carlson, Respondents.
    No. 48765.
    Supreme Court of Missouri, Division No. 2.
    April 9, 1962.

      Wm. Harrison Norton, Williams, Norton & Pollard, North Kansas City, for appellant.
    Dick H. Woods, John C. Noonan, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, for respondents.
   BARRETT, Commissioner.

This action to contest a will was filed on March 8, 1956, and when it was tried almost five years later, January 23, 1961, a jury returned a verdict in favor of the will, and the contestant has appealed. When Clarence (Swede) K. Carlson executed his will on May 2, 1944, he was single (his wife died in 1940) and had no next of kin or relatives other than the parties to this litigation. Swede died on February 15, 1955, age 49, and by his will devised his one half interest in a farm to his sister-in-law, Laura Carlson, wife of Carl. The remainder of his property he bequeathed, provided they did not contest the will, one third to his brother Elmer, one third to his brother Albert and one third to his sister-in-law Laura and his nephew Jack. The contestant is the brother Albert and the proponents are Carl,- who originally was executor and is not a beneficiary directly, the present executor and the other named beneficiaries. The alleged grounds of the contest were lack of capacity and undue influence by Carl. The contestant has filed an elaborate brief in which he has detailed all the evidence and, despite his disclaimer, the general purport of his argument is that the jury’s verdict upholding the will is against the weight of the evidence. But, admittedly, there was substantial evidence in support of the verdict and this court may not set the judgment aside as against the weight of the evidence. Nearns v. Harbert, 25 Mo. 352, 355; Whitacre v. Kelly, 345 Mo. 489, 494, 134 S.W.2d 121, 124; Pickett v. Cooper, 354 Mo. 910, 914, 192 S.W.2d 412, 413. The contestant failed to adduce any evidence of undue influence. As to capacity to execute the will it is sufficient for the purposes of this opinion to say that there was evidence that Swede Carlson was an alcoholic, that he may have used some narcotics, that he was a “manic-depressive,” and, before his marriage in 1938, he may have had a venereal disease. In short, there is evidence to support the inference that he lacked the capacity to execute the will. But, as indicated, that issue has been resolved, and the three points briefed and argued as entitling the contestant to a new trial are that the court erred (1) in excluding certain evidence, (2) in refusing to permit the introduction of a deposition and (3) in refusing permission to cross-examine a witness as hostile.

As to the latter point, the contestant called as a witness Robert Nichols who had once worked at the Standard Laundry (owned by the Carlsons) and had known Swede for twenty years. After examining Nichols at some length, the witness readily answering all questions, counsel suddenly announced that they desired to examine him as a hostile witness, particularly with reference to a “sworn” statement. In the course of a colloquy one of contestant’s counsel said “that just a minute ago I noticed a strong odor of alcohol on his (Nichols) breath. I don’t know whether that has anything to do with it or not, but I have no reason to think that he wouldn’t answer the same questions in the same manner that he gave them to us.” The statement is here, it is not a “sworn” statement, it is an unsigned question and answer statement dated December 16, 1957. In some important respects Nichols’ statements were based entirely on hearsay; as to whether Swede was addicted to narcotics, “just by hearing other people talk.” In some respects his statements were mere conclusions based upon insufficient factual background: “Q. You don’t think he was capable of making a will? A. No.” In any event, at the point counsel stopped in his examination of the witness there was no indication that he was hostile. He had testified that Swede “drank a little,” in the statement he had said “quite a bit,” and the last question was whether the witness noticed any difference in his drinking when the witness came back to Kansas City on a vacation and he said, “Not too much, no,” the answer in the statement was “He seemed to be drinking more when I came back” in 1943 on a vacation.

Counsel said they had no reason to believe that Nichols’ testimony would differ from his statement, but, as the court pointed out, there was no showing that he had seen the statement since 1957 or that counsel had since talked to him. There was no explanation of why the statement was unsigned, and the witness was testifying to matters and events seventeen years previously. The plain fact of the matter was that contestant was simply not getting the desired or expected answers from Nichols. But the fact alone that the answers of the witness were not all that contestant expected, and modified or differed from an unsigned statement given three years previously, did not make him a hostile witness, or as a matter of right entitle disappointed counsel to cross-examine him with respect to the statement. There are circumstances in which an entrapped party may cross-examine or impeach his own witness, as when a prior statement of the witness is also supported by a deposition. Malone v. Gardner, 362 Mo. 569, 242 S.W.2d 516. But in that case the trial court exercised its discretion and permitted the cross-examination, while in this case the court exercised its discretion and denied the request, and the problem here is whether the court unjustly or unfairly exercised its discretion.

The general rule is that a party may not call a witness and then impeach his testimony, either by cross-examination or a prior contradictory statement, merely because his evidence turns out to be unfavorable or unsatisfactory. Crabtree v. Kurn, 351 Mo. 628, 646, 173 S.W.2d 851, 858; Burnam v. Chicago G. W. R. Co., 340 Mo. 25, 42, 100 S.W.2d 858, 867. Here the witness readily answered all questions, counsel had received two answers that were not as favorable as desired, but the witness was not then or later examined as to the really material facts (Malone v. Gardner, supra), and, if qualified to express an opinion, no one knows what his answer might have been upon the truly essential issue of Swede’s capacity to execute a will in May 1944. In the circumstances of this record, particularly the noted imperfections in the statement itself, it is not manifest that the court abused its discretion in denying counsel’s request to cross-examine Nichols as a hostile witness. 58 Am.Jur. (Witnesses), Secs. 792, p. 437, 800, p. 445 ; 98 C.J.S. Witnesses § 477(b)s p. 358.

The appellant’s first point, that the court erred in excluding “certain evidence,” has to do with the deposition of Marie Jones. Marie was an old friend of Swede’s wife who died in 1940, and for the next three or four years Swede occupied a room in the apartment of Marie and her then husband, Charles Hutson. Marie left Kansas City in 1944 and was in Alaska for eleven years, later in Los Angeles, and her deposition was taken in 1960. In the first place, her entire deposition was not rejected, objection was sustained to certain specific questions and answers and large sections of the deposition were read in evidence. In the second place, the appellant “did not offer this evidence necessarily for the truth of the statements and declarations made by the person involved, but because these declarations amounted to conduct inconsistent with that of a rational, sane person,” in other words, it was “to show or indicate the condition of the mind of the deceased testator, not necessarily to establish the truth of the statements made.”

It would unnecessarily encumber this opinion to detail Marie’s history and her deposition, consequently illustrations will have to suffice. One of the factors the contestant attempted to establish was that his brother was addicted to narcotics. Marie did not purport to have or to testify to firsthand information. “Q. Now, did you at any time know of him using narcotics ? A. Well, when you say did I know it, I never actually saw, I know he called the doctor. It was my impression that is what he was doing, and his wife.” Immediately following, this was her explanation, “I know sometimes he would be very nervous and he would want to call the doctor and my husband would try to get him not to, but he would and they (Swede and the doctor) would go in the back room. I wasn’t in there, I can’t say what happened.” In further explanation of her “impression” Marie said, “When we was living with his wife sometimes he would be out riding and he would have to stop and see a doctor and she would object because (s)he said that he was getting dope, and she was so worried.” When it came to the crucial issue of Swede’s capacity this was the repeated question, “From your conversation with him and your observation of him, would you say that in your opinion he was competent to make a will, make a distribution of his property?” And the answer, “I wouldn’t think so, myself.”

It is not objected that Marie was not permitted to testify to Swede’s capacity to make a will, it is said that she “of course, could not testify as a lay witness and give an opinion as to the sanity of the deceased, Clarence Carlson, without first relating facts including acts as well as declarations that were inconsistent with the behavior of a rational, sane person.” But, it should be noted in passing, the question put to Marie, “would you say that in your opinion he was competent to make a will, make a distribution of his property,” was not the proper manner in which to elicit the desired response. Gillmore v. Atwell (Mo.), 283 S.W.2d 636, 639; Fields v. Luck (Mo.), 44 S.W.2d 18, 21; 2 Page, Wills, Sec. 790, p. 548. It is permissible to adduce evidence, even certain hearsay perhaps, of a testator’s mental condition both before and after the execution of a will (29 Am.Jur. (Insane Persons), Sec. 137, p. 259; 20 Am. Jur. (Evidence), Sec. 585, p. 491), but such evidence “is of no probative value unless it raises a reasonable inference as to mental condition at the time of signing the will.” Whitacre v. Kelly, 345 Mo., l. c. 494, 134 S.W.2d l. c. 124. All the witnesses agree that Swede was in bad health all his life, he had arthritis, a gall bladder operation, he was nervous and under the care of doctors and institutions for years. But the fact that he would see a doctor and then be “relaxed” or all right for the time being is not particularly, forceful proof of his mental condition when the will was executed in May 1944.

Marie’s testimony has not been set forth in detail, but his wife’s objections (as testified to by Marie) to his seeing a doctor, or what his wife said are not declarations of the testator indicative of his mental condition or evidence from which his state of mind could be inferred when the will was executed. 6 Wigmore, Evi-' dence, Secs. 1714, p. 57, 1734, p. 106; 2 Page, Wills, Sec. 810, p. 592. One of Swede’s own statements rejected by the court was this: “Q. Did he ever say anything about having been in the Army or having been called to the Army ? A. Well, he was supposed to have went over to Leavenworth to take his test or whatever it was, anyhow he said that they said he was crazy. He made a joke out of it. Q. Do you know when that was, or about when? A. No, I can’t tell you that. Of course, he made a joke out of everything.” Not only was Swede a noted practical joker, op,e of his difficulties was that he refused to take anything, even life, seriously, so all the witnesses agreed. In any event, Swede did not make a declaration that he was crazy, according to Marie he said that “they said he was crazy.” Even so, “a direct assertion by a testator that he was at- a past time sane or insane stands, on no better footing than any other hearsay assertion; it is not admissible under the present Exception, (Testator’s Statements) because it does not assert a present mental condition.” 6 Wigmore, Evidence, Sec. 1740, p. 130. Again, in view of the specific complaints here and the purposes for which, assertedly, the evidence was. offered, it may only be said that the court did not manifestly err to the contestant’s prejudice in rejecting these particular parts of Marie’s deposition.

In addition to claiming that his brother was an alcoholic and a drug addict, the contestant also attempted to prove that he had once had a venereal disease. And, as indicated, there was some evidence from which one could draw the inference that at some time in his life he had suffered from a venereal disease of some type. Dr. Major did not treat Swede but he said that an examination in 1939 revealed that he had “gonorrheal arthritis.” There was, however, no evidence of probative force that he had ever had syphilis. The proponents’ evidence, particularly that of Dr. Graham, the family physician and Swede’s doctor for about thirty years (the doctor referred to by Marie Jones), was that he had “a bad heart lesion” and arthritis, but he said that he definitely did not have “gonorrheal arthritis.” In all the years he saw no symptoms of any venereal disease and no evidence whatever of syphilis. And he was of the opinion that if Swede had ever had a venereal disease there would have been residual symptoms and he would have discovered them.

Swede died February 15, 1955, and an autopsy was performed by Dr. Hill, a pathologist. After the case was closed by the proponents, the contestant proposed to read in rebuttal the deposition of Dr. Hill. Dr. Hill’s report shows that “Death is apparently due to congestive heart failure due to free aortic regurgitation on the basis of valvular insufficiency.” It was the doctor’s opinion, in the deposition, that “the changes we saw were best interpreted as being due to syphilis.” Particularly in the first centimeter of the aorta, “This condition might indicate syphilis in the aorta.” When asked whether the condition he found could have occurred within a comparatively short time before death, Dr. Hill said, “I have no idea on that.” He thought there was no active syphilis at the time of death, but whether it had been something of long standing, he said, “I could only speculate about the time.” As to time in general, “I think it would mean that the disease had been present for a few years,” but as to how many, “I couldn’t say on that — a year and a half or ten and a half. I don’t feel competent; to say.” He said it might take as many as five years to develop, “I think it could be five or seven.” As to whether it could have been ten years, “I just can’t answer that.” And on cross-examination he conceded as another possibility that the condition he found could have resulted from other causes than a possible syphilitic infection.

The contestant’s third point is that the court erred in rejecting this rebuttal evidence, “Rebutting evidence is admissible to explain or repel evidence given by the-opposing party.” The contestant admits that Dr. Hill’s evidence, the autopsy having been performed eleven years after the execution of the will, was not of sufficient probative force to have been admissible in his case in chief: “It would seem obvious that the condition of syphilis found by the doctor who performed the autopsy eleven years after the date of the execution of the will would have no probative value to prove that the deceased had syphilis at the execution of the will.” Nevertheless, the contestant contends that the evidence was admissible in rebuttal to contradict and thus impeach Dr. Graham and that because of its rejection he is entitled to a new trial. On the other hand, the proponents contend that the attempt to thus impeach the testimony of Dr. Graham involved a collateral matter and that therefore the court did not abuse its discretion; in rejecting the deposition of Dr. Hill.

The contestant had some evidence that Swede had once had a venereal disease of some kind, according to Dr. Major, gonorrhea, but, as indicated by the point he makes here, there was no probative evidence that he had ever had syphilis. In his autopsy Dr. Hill did not examine the brain and so there was no evidence of “meningo-vascular syphilis.” The significant thing about all of the contestant’s testimony as to venereal disease is that there was no evidence whatever that any venereal disease the testator may have had had any bearing on his capacity to execute a will in May 1944. Thus the only point to Dr. Hill’s deposition was that it tended to contradict and thus impeach Dr. Graham’s testimony that Swede Carlson had never had a venereal disease of any kind. And, since the appellant had no evidence of syphilis, the effect of Dr. Hill’s deposition was simply to contradict Dr. Graham upon an issue as to which there was in point of fact no material contest. Nevertheless, since the deposition was contradictory of Dr. Graham’s testimony and therefore had some bearing on his credibility, it is assumed that it would not have been improper for the court to have admitted the testimony in rebuttal. McCormick, Evidence, Sec. 47, p. 100; 58'Am.Jur. (Witnesses), Sec. 782, p. 432 ; 98 C.J.S. Witnesses § 629, p. 646; 32 C.J.S. Evidence § 571, p. 411. However, as this deposition plainly illustrates, such contradictory evidence does but little “pro-batively,” particularly upon the essential issue of the testator’s mental capacity to execute a will in 1944, it only shows, if believed, that Dr. Graham may have been “in error on a particular point.” 3 Wigmore, Evidence, Sec. 1000, p. 652. It is not necessary to consider whether Dr. Hill’s deposition involved a “collateral matter” (Frechin v. Thornton (Mo.), 326 S.W.2d 122; 3 Wigmore, Evidence, Sec. 1021, p. 694), it is sufficient to again say, in these detailed circumstances, particularly in view of the essential issues and the state of the proof, that the court did not manifestly abuse its discretion in excluding the deposition. Burgess v. Garvin & Price Merc. Co., 219 Mo.App. 162, 272 S.W. 108; 32 C.J.S. Evidence § 571, p. 411.

As indicated as to each of the three points urged, none was manifestly prejudicial as to any matter “materially affecting the merits of the action” (Sup.Ct. Rule 83.13, V.A.M.R.) and, therefore, the judgment is affirmed.

BOHLING and STOCKARD, CG, concur.

PER CURIAM.

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

All of the Judges concur.


text:
    Andrew S. PFEIFFER, Respondent, v. Elizabeth PFEIFFER, Appellant.
    No. 48854.
    Supreme Court of Missouri, Division No. 2.
    March 12, 1962.
    Motion for Rehearing or to Transfer to Court en Banc Denied April 9, 1962.

      R. M. Gifford, Green City, for appellant.
    L. E. Atherton, Milan, for respondent.
   BARRETT, Commissioner.

The general purpose of this phase of this proceeding by Andrew S. Pfeiffer is to secure a declaration that his divorced wife, Elizabeth, has no interest in certain real property. Specifically it is a suit to set aside a deed from Andrew to Andrew and his then wife as tenants by the entirety. Originally, in January 1960, the action was one for a divorce, but by an amended petition in March 1960 there were three counts, (1) for a divorce, (2) to set aside the deed, and (3) an alternative count for partition in the event it was decreed that the parties were tenants in common. The divorce suit was tried first in March 1960 and Andrew was granted a divorce. In February 1961 this phase of the proceeding was tried and the trial court found that “the allegations contained in plaintiff’s petition are true,” and, therefore, that the deed “should be set aside and for naught held.” The court accordingly set the deed aside and the divorced wife, Elizabeth, has appealed.

The following are the general circumstances in which this litigation arose. After some forty years of marriage and living on a 20214 acre farm in Sullivan County, Andrew’s first wife, Lula, died June 3, 1957. It does not appear just where Elizabeth lived, but she had known Andrew for sixteen years and had been twice married and divorced. After his first wife’s death and a courtship of three or four months Andrew and Elizabeth were married on November 4, 1957, and thereafter lived on the farm until their separation and the filing of the divorce suit in January 1960. As grounds for divorce Andrew alleged “general indignities,” that Elizabeth spent money recklessly, that since December 1959 and over his protests she “insisted on keeping a young man there,” that she called him vile, vulgar and obscene names, and by her actions made him “the laughing stock of his friends and acquaintances.” Elizabeth was present in court with her lawyer when the divorce action was heard but offered no evidence. The court found that Andrew was the innocent and injured party and granted him a divorce “on the grounds set forth in his petition.”

The second count of the petition, with which the court is immediately concerned, stated that on December 30, 1958, he had conveyed the farm to Elizabeth and himself as tenants by the entirety. He alleged that shortly after the marriage Elizabeth began to insist, since he had no children and they “were going to live together the rest of their lives,” that the land should be conveyed so that an estate by the entirety would exist in them. He alleges that “said statements and representations were made many times by defendant to plaintiff” and that plaintiff “finally relying on the fact that they would always live together” accordingly executed the deed. He alleged that Elizabeth had caused him to give her large sums of money and had induced him to borrow large sums of money “on the real estate” which, he said, she had converted to her own use or dissipated. And finally, he charged that immediately after the execution of the deed she “began a studied course of action to bring about a separation of the parties, with the intent on her part to thus acquire an interest in said lands and to cause plaintiff to separate from her,” all of which culminated in a divorce. Then he says, “That at no time did defendant ever intend to live with plaintiff until his death but said inducements were made with the intention only of mulcting this plaintiff and with no intention to live with him.” For these reasons Andrew prayed the court to ascertain and determine “the right, title and interest of the parties” in the farm.

It should be carefully noted that Andrew does not allege that Elizabeth by fraud and false representations induced him to enter into the marriage (Turner v. Turner, 44 Mo. 535), he alleges that shortly after they were married she made the representations and induced the conveyance. The respective ages of the parties does not appear, they apparently attached no significance to the fact, but from the fact that Andrew had married and lived on the farm for forty years it is assumed that he is about sixty. In any event, this is not a claimed instance of a predatory young woman preying upon a senile old man and exerting undue influence or in bad faith initially entering into the marriage for the purpose of securing the conveyance. Andris v. Andris, 343 Mo. 1162, 125 S.W.2d 38; Lins v. Lenhardt, 127 Mo. 271, 29 S.W. 1025. Futhermore, this action does not involve an antenuptial contract (Leavy v. Cook, 171 Mo. 292, 71 S.W. 182), and, admittedly, the property is not homestead ■or a statutory allowance (V.A.M.S. § 474.-140), and Elizabeth is not claiming any property “by virtue of the marriage.” V.A.M.S. § 452.090; Coleman v. Coleman, 147 Ky. 383, 144 S.W. 1, 39 L.R.A., N.S., 193; Saunders v. Saunders, 144 Mo. 482, 46 S.W. 428. And, Andrew does not charge Elizabeth with adultery, nor with conspiring with and eloping with a paramour after the conveyance. Turner v. Turner, supra; Thomas v. Thomas, 27 Okl. 784, 109 P. 825, 35 L.R.A..N.S., 124. Nevertheless it is assumed that the petition states a claim upon which relief can be granted and that the theory of the action is some form of marital misconduct, misrepresentation of intention and fraud. Culbertson v. Young, 86 Mo.App. 277; Sims v. Sims, 101 Mo.App. 407, 74 S.W. 449; Steines v. Steines, 338 Mo. 335, 89 S.W.2d 520; annotation 29 A.L.R. 198.

Returning to the allegation with respect to money, Andrew does not seek a money judgment but claims that as a part of her intention with respect to the land she induced him to give her large sums or caused him to spend large sums and finally encumber the property. Within two months of the marriage she wanted to write checks. Andrew’s response was, “ ’That’s all right.' I says, ‘I’ll go and make a joint bank account,’ and that’s what I did,” and she wrote checks “the same as I did.” Before his marriage to Elizabeth Andrew owed $3500, he had $500 in the bank, 1000 bushels of corn, 1200 bales of hay, sheep, cattle and horses. When he filed the divorce suit two years later he had an equal amount of feed and livestock but his indebtedness had increased $7500 and he owed $11,000, Once, in discussing finances, he recounted, “Well, I said, ‘How much more do you want?’ I says, ‘You have already got me broke.’ She says, ‘Goddamn, you! I aim to break you! ’ ”

It is not necessary to detail Andrew’s testimony with respect to finances, there were some small items but there is no proof that Elizabeth wrote checks for large sums for her personal use. It turned out that the $7500 indebtedness consisted of $1500 for repairing and shingling the house, $1000 for a bathroom, $200 for furniture, $165 for a deepfreeze, $75 for his hospitalization, $215 for a cow and numerous items of farm machinery. As to some of these latter items, for example a hay baler, Andrew said, “I still owe for it. Good God Almighty! Don’t poke them things on me. I still owe for it.” However, as to repairing the house, the bathroom, and the furniture, he repeatedly testified that they talked these matters over and mutually agreed to the expenditures. Usually he put it this way, “I said, ‘If we aim to live together the rest of our lives,’ I said, ‘I don’t care about the furniture in the house.' I said, ‘Just get whatever you want to.’ ” He always concluded, “I didn’t object to a thing until she brought Hopper (the young man) there in my house and kept him. That’s the only objection ever I made to her and she’ll tell you the same thing.”

When she was served with the divorce petition and left the farm Andrew claims that he gave her $100. But Elizabeth says, “I did not take anything but a few clothes, and a few personal things.” She says that Andrew refused to give her any sum, but they had spent $50 of her mother’s money to buy Andrew a new suit and finally he gave her $50 and “that’s all the money I had when I left.” And aside from his agreeing to the expenditures, when the indebtedness grew from $3500 to $11,000 and it became necessary to borrow money from the bank in 1960, both Andrew and Elizabeth signed the note and executed the deed of trust encumbering the farm. There is no evidence that she “converted” large sums to her own use, and it is not apparent how the incurring of the $11,000 indebtedness, for which she too is obligated, benefited her personally or furthered her alleged intention of securing to herself an interest in the farm.

As to the deed to the plaintiff and the defendant as tenants by the entirety, Elizabeth says that there was casual discussion of it before the marriage. But Andrew says, “it was about eight months after we was married, she begin on the land then. * * * She said that we neither one have got no kids and said the thing to do, would be to make a joint deed out of it. Well, I said, ‘If you still feel that way — ’ .and she said, ‘We’re going to live together all the rest of our lives, till one of us dies.’ She said that time and again. ‘Well,’ I said, ‘if you still feel that way,’ I said, T think two parties ought to be that way.’ ‘Well,’ she said, ‘We’ve got to live together,’ and I said, ‘Well, we’ll go, and’ I said, ‘make a joint deed out of it,’ and we took out one day and come up here to Lehman Ather-ton’s office and she had the deed in her pocketbook— * * * (T)he 30th day of December in ’58, is when we made the deed.” And, another reason for the “joint deed” was to save probate expenses to the survivor. In any event, they went to Andrew’s lawyer in Milan and discussed all these matters with him, including, to quote the lawyer, “that you were going to live together the rest of your life.” The lawyer drafted the deed, a general warranty deed, the only unusual clause being the insertion of “It is the intention of the grantors to vest title to the above lands in grantees as an estate by the entirety.” The other unusual feature of the deed was that Andrew and Elizabeth were both made grantors as well as grantees, and both of them executed the deed, and the lawyer personally acknowledged the execution^ Andrew took the deed and went alone to. the courthouse and recorded it. That was. on December 30, 1958, one year, one month; and twenty-six days after the marriage on November 4, 1957.

But Andrew claims that to secure the conveyance Elizabeth “represented that they would always live together” when in fact she had no such intention when she married him. He argues that by reason of the representation or understanding “there was a condition attached to the conveyance,” that the condition was not performed due to her fault and therefore there was not a completed gift of the land. He asserts that she did not in good faith enter into the marriage, that she had no intention of keeping her marriage vows and married him for the sole purpose of obtaining his property and is, therefore, guilty of such fraud as entitles him to have the conveyance set aside. The circumstances upon which he relies to establish all these claims developed or came about after a young man named Cecil Hopper came to the farm on October 6, 1959, and stayed until his parole was revoked and he was placed in jail on January 20, 1960. As Andrew repeatedly said, “I didn’t object to a thing until' she brought Hopper there in my house- and kept him. That’s the only objection.ever I made to her and she’ll tell you the same thing.” Until Hopper came “I would say we got along as good as any man and woman did.”

Cecil Hopper was “going on twenty-one,” according to Andrew, “He was plenty old.” He was on probation involving a motor vehicle offense, and Elizabeth said, “he was a young boy and I felt sorry for him — I think we both felt very sorry for him and we tried to help him all we could, because he didn’t have a home and he was ■ — well we felt very sorry for him.” The circumstances of Hopper’s coming to the Pfeiffer farm were that in October 1959 Andrew bought some fence posts from him. It turned out that he had stolen the posts from his uncle and when confronted with the fact “wanted to work them out, and I let him work them out.” But says Andrew, “And then after I got done with him, I couldn’t get rid of him and she wouldn’t let me get rid of him.” They would argue about Hopper’s leaving and she would say, “As long as I’ve got a home, he’s got one.” Andrew complained that she spent money on him, and Elizabeth conceded that she “bought him a second-handed coat off of the neighbor,” and she bought him a pair of Western boots that he “had already paid down on.” And, after their separation, while Andrew was on a trip, and after Hopper’s parole was revoked and he was in jail, she sent him, by Andrew’s nephew, either $2.50 or $5 for “some chewin.” But, it was after Hopper came on the scene that they had serious difficulty, in the course of one argument Elizabeth threatened Andrew with a flashlight, and once she hit him over the head with a broom: “If I hadn’t been setting down, she would have knocked me down. She darned near knocked my right eye out.” He says that he struck her but “One time, and I never struck her then. I just slapped her off of me. She was hammering on me with her fists.” He said, “I don’t know whether I bloodied her nose or not. I should have bloodied her nose, I’ll say that.”

The climax came in December, Andrew had been cutting wood and came in the house for a drink and there was Elizabeth, “In there in bed, and Hopper was laying right down over her. She can’t deny that.” Andrew’s reaction was, “ ‘I’ll be Goddamned! ’ and I turned around and walked out of the room' and went in there and set down. He never even raised up when I went in there.” Elizabeth’s version of this episode was that she had a bad migraine headache and was lying in the guest room fully clothed with all the doors open, Hopper “had just come in,” and she asked him to bring her an aspirin and a glass of water (“if it had been Mr. Pfeiffer who had come in, he would have been the one I would have asked for the water and the aspirin tablet”). As Hopper handed her the water and aspirin Andrew came in and, according to her, said “to the boy,” “You should be out here helping me.” As to the whole episode she said, “I didn’t know that he felt peeved about it or hurt in any way. He didn’t say anything to me, but directly after that is when he went to his lawyer and filed for the divorce, and had his lawyer to write the letter to the Parole Officer to come and get him (Hopper).”

It was after this episode that the fights occurred, and it was in events relating to Hopper and this episode that Andrew claims to have established Elizabeth’s fraud. On one occasion he told her, “ ‘If I’ve got to live with Hopper all the rest of my life to live with you,’ I says, ‘I ain’t agoing to live with him.’ ” He was getting ready to leave one morning and in the ensuing argument “She called me a lying sonofabitch and she said, ‘You sonofabitch! I never aimed to live with you when I married you! ’ ” Even after Hopper left and was in jail Andrew couldn’t stand it, “Why, Jesus Christ! I couldn’t even stay in the house, couldn’t even stay around the house,” and he made a trip to South Missouri. Before leaving he hired his nephew, Robert Pfeif-fer, to come and do the chores and Robert brought his friend Downing along. Elizabeth denied the conversations but these young men testified that when Andrew returned from his trip they overheard them having an argument, started by her over Hopper. The part they remembered was, according to Downing, “Well, they was arguing and Elizabeth called him a dirty, lying sonofabitch, and said that she didn't intend to live with him when she married him.” Robert didn’t exactly remember what the argument was about, but she called Andrew “a dirty, lying sonofabitch” and “She said she wasn’t aiming to live with him when she married him.”

This is the evidence, particularly the italicized quotations, relied on as establishing fraud, that she did not in good faith enter into the marriage and did not intend to keep her marriage vows. The respondent’s principal reliance, as establishing his theory, is upon Steines v. Steines, 338 Mo. 335, 89 S.W.2d 520. But in that case, very briefly, the husband was 75 years old and his bride was 31, and the promise that she would “be a true and faithful wife” was made as they entered the courthouse to purchase the marriage-license, she at the time demanding a conveyance. There the parties were married on August 10 and the deed was executed on August 12, and the opinion says, “They occupied the same room the first three nights. Defendant refused sexual intercourse,” moved to another room and immediately began running around nights. On September 26 she told the plaintiff “to get out and stay out” and sue for a divorce “that he had good grounds to do so.” In these circumstances the deed was set aside, and the court said, “It is clear that the marriage ceremony was a mere sham. * * * From the beginning she fraudulently contrived to obtain his property. By deceit and imposition she did so.”

But in this case the deed was not executed until December 30, 1958, thirteen months after the marriage, and Andrew and Elizabeth lived together in comparative harmony for ten months after that. Regardless of what they now say, their mutual intention was manifest in what they in fact did, and they did marry and live together for" twenty-six months, two years in comparative serenity, until Hopper came along. There are no express conditions or reservations in the deed, and it takes considerable imagination to now translate “that you were going to live together the rest of your life” into a condition attached to the conveyance. Compare: Platt v. Huegel, 326 Mo. 776, 32 S.W.2d 605; Lewis v. Lewis, 354 Mo. 415, 189 S.W.2d 557. Andrew purposefully and intentionally executed the deed and, in the absence of compelling circumstances to the contrary, it necessarily had the effect the law affixes to it. Ferguson v. Stokes, (Mo.) 269 S.W.2d 655. The effect of the conveyance was that it created in Andrew and Elizabeth an estate by the entirety (V.A.M.S. §§ 442.025, 442.450; Kluck v. Metsger, (Mo.) 349 S.W.2d 919), and while Andrew may have had cause for a divorce her interest in the estate by the entirety was not dependent on her good conduct nor was it affected by her subsequent misconduct. McCarty v. McCarty, (Mo.) 300 S.W.2d 394, 402; Johns v. McNabb, (Mo.) 247 S.W.2d 640, 642. That he was the innocent and injured party in the divorce action (on the ground of “general indignities”) did not perforce destroy her interest in the estate by the entirety (Hiatt v. Hiatt, (Mo.) 168 S.W.2d 1087, 1091), the consequence of the divorce was that they became tenants in common. Cisel v. Cisel, 352 Mo. 1097, 1102, 180 S.W.2d 748, 750.

As indicated, the circumstances of this case are not comparable in probative force to those in Steines v. Steines, supra, and in some respects they are not as compelling as the conceded facts in Kinzey v. Kinzey, 115 Mo. 496, 22 S.W. 497, 20 L.R.A. 222, in which the court refused to set aside a conveyance from husband to wife. There the parties had lived together for fourteen years, but the husband obtained a divorce upon the allegation that his wife had committed adultery “with one John A. Catron.” Essentially Andrew’s theory of relief is comparable to Mr. Kinzey’s. “But counsel for appellant seem to contend that this case is one calling for the interposition of a court of equity in the interest of morality, upon some theory of fraud to be deduced from the premises by reason of the confidential relations existing between husband and wife; a fraud not constructed upon the theory of any fraudulent act done or representation made by the defendant inducing the conveyance of the property to her, but simply upon a breach of the confidence that the plaintiff then had that the defendant was and would continue to be to him a faithful wife. * * * A court of equity can and will interfere to restore to a party injured property which has been obtained from him by imposition or deceit. But in this case no property was obtained from the plaintiff by imposition or deceit. He was simply mistaken in the moral worth and virtue of one of the objects of his bounty. From the consequences of such a mistake of judgment a court of equity cannot relieve him.” Kinzey v. Kinzey, 115 Mo. loc. cit. 501, 502, 22 S.W. loc. cit. 498.

In short, assuming the truth of Andrew’s evidence in its entirety, the circumstances are not of the cogent, compelling force necessary to set aside a deed on the theory of marital misconduct, misrepresentation of intention and fraud. Alexander v. Alexander, (Mo.App.) 44 S.W.2d 872; Cisel v. Cisel, supra; Hiatt v. Hiatt, supra; Saunders v. Saunders, supra; Kinzey v. Kinzey, supra, and 4 Maus, Probate Law & Practice, 'Sec. 1242, p. 443. It necessarily follows that the judgment is reversed and the cause .remanded.

BOHLING, and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    Edmund C. FOREHAND, Administrator d.b.n. of the Estate of Arthur R. Cobb, Deceased, Appellant, v. Durward G. HALL, Respondent.
    No. 48827.
    Supreme Court of Missouri, Division No. 1.
    April 9, 1962.

      Edmund C. Forehand, Lincoln, Haseltine, Keet, Forehand & Springer, Springfield, for appellant.

      Meredith B. Turner, Kenneth H. Reid, Stewart, Reid & Turner, Springfield, for respondent.
   HOUSER, Commissioner.

In this wrongful death action, brought under § 537.080 et seq., the Circuit Court of Greene County sustained a motion to dismiss the amended petition of an administrator de bonis non and sustained a motion to strike the administrator’s motion to substitute the minor child of deceased as plaintiff and to amend the petition. The administrator d. b. n. has appealed. We have jurisdiction, since the prayer of the amended petition was for $25,000 damages.

On October 6, 1959 Arthur R. Cobb, a patient of the defendant physician, died.

On October 5, 1960 Goldie M. Cobb, Ad-ministratrix of the Estate of Arthur R. Cobb, Deceased, filed a petition for damages for the death of Arthur R. Cobb, based upon charges of negligent failure to give proper prophylactic treatment for the prevention of tetanus, alleging that the probate court issued letters of administration to her and that she was the duly qualified and acting administratrix.

On November 29, 1960 defendant filed a motion to dismiss on these grounds: that the petition failed to state a claim upon which relief could be granted; failed to set forth a cause of action against defendant; showed lack of jurisdiction over the subject matter. Goldie M. Cobb’s legal capacity to sue was challenged on the ground that she was disqualified from administering the estate under § 473.117 (because not a resident of this state) and did not have legal capacity to sue under the provisions of Chapter 537, RSMo, V.A.M.S.

On December 8, 1960 Goldie M. Cobb resigned as administratrix and Edmund C. Forehand was appointed administrator d. b. n. in her place.

On December 12, 1960 the administrator d. b. n. filed an amended petition in the case naming himself as plaintiff, reciting the resignation of Goldie M. Cobb, his appointment as administrator d. b. n. and that he was the duly qualified and acting administrator d. b. n. He realleged the same cause of action in the same words and figures as in the original petition.

On December 21, 1960 defendant filed a motion to dismiss the amended petition, alleging (and here for the first time in any of the pleadings it appears) that Cobb died leaving surviving him a wife, Goldie, and a minor child, David Earl, age 18; that both of them were still living and that neither of them, to the date of the motion, had commenced any action under §§ 537.080-537.-100, as amended, within one year after the alleged cause of action might have accrued, and that they would now be barred from commencing any such action; that no action under § 537.080 was commenced in time because none of the persons who might have been authorized to sue and recover for the alleged wrongful death commenced an action within the one-year limitation period; that the amended petition failed to allege the existence of anyone entitled to compensation under §§ 537.080-537.100; failed to allege whether deceased left surviving him a “wife, minor child or minor children, natural born or adopted” and therefore failed to show that the administrator was entitled to sue; and failed to show that the administrator had any cause of action or right to institute this action of recovery for wrongful death under §§ 537.-080-537.100. The motion to dismiss was supported by affidavit that on October 6, 1959, the date of his death, Arthur R. Cobb was married; that Goldie M. Cobb was his wife; that he had one minor child, David Earl Cobb, age 18; that Cobb left surviving him wife Goldie and child David, both of whom were living on December 20, 1960, the date of the affidavit.

On January 23, 1961 the administrator d. b. n. filed a motion for permission to withdraw as plaintiff and that David Earl Cobb, by his natural mother and next friend, Goldie M. Cobb, be substituted as plaintiff in said cause, and that David be allowed to file an amended petition.

On January 24, 1961 defendant filed a motion to strike the administrator d. b. n.’s motion to substitute and amend, alleging failure to set forth matters authorizing a substitution or justifying an amendment and that to permit this would serve only to increase costs and harass defendant.

The several motions were argued to the court, taken under advisement, and in due course defendant’s motions to dismiss and to strike were sustained. The appeal of the administrator d. b. n. followed.

The administrator d. b. n. asserts error in sustaining the motion to dismiss his amended petition. His theory is that an action was instituted within one year after the cause of action accrued, in compliance with § 537.100; that the action filed by Goldie M. Cobb, administratrix of the estate, the widow of deceased and natural mother of minor child David, was instituted by her as trustee of an express trust for the beneficiaries of the estate under the law of descent and distribution, § 474.010; that minor child David, as a beneficiary of the estate, had an interest in the original action, a right to sue, a right as the real party in interest to be substituted as party plaintiff and file his amended petition; and that an amended petition filed by David would relate back to the original action, which was filed within one year after the cause of action accrued.

The administrator d. b. n. also asserts error in sustaining defendant’s motion to strike. He claims that under Civil Rule 55.53, V.A.M.R., a party has the right to amend his pleading as a matter of course at any time before a responsive pleading is filed and served; that under Civil Rule 52.06 parties may be added by motion of any party at any stage of the action and on such terms as are just; that under Civil Rule 52.01 every action shall be prosecuted in the name of the real party in interest, and that under Civil Rule 41.03 the rules are intended to provide for the just determination of every civil procedure and fairness in the administration of justice.

The governing statute, § 537.080, provides that damages may be sued for and recovered

“(1) By the husband or wife of the deceased; or
“(2) If there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased,
* * *; or
“(3) If such deceased be a minor and unmarried * * * (other provisions inapplicable here) ; or
“(4) If there be no husband, wife, minor child or minor children, * * * (other provisions inapplicable here) then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent.”

Section 537.100 provides that “Every action instituted under section 537.080 shall be commenced within one year after the cause of action shall accrue; * *

Arthur R. Cobb died October 6, 1959, leaving surviving him his wife Goldie, and one minor child, David. Under § 537.-080 his surviving wife was entitled to sue in her own name and right within six months after October 6, 1959. Slater v. Kansas City Terminal Ry. Co., Mo.Sup., 271 S.W.2d 581, 582. This she did not do. The cause of action not having been appropriated by the surviving wife within the period authorized by the statute, the right to maintain the suit then passed to and vested in minor child David. Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, 487. To avail himself of his cause of action minor child David was “required to file suit within one year from date of death of deceased.” Goldschmidt v. Pevely Dairy Co., 341 Mo. 982, 111 S.W.2d 1, 3; Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, 931; § 537.100. This he did not do. The statute of limitations therefore ran on the minor child’s cause of action on October 6, 1960. Goldschmidt v. Pevely Dairy Co., supra. The institution of the suit by Goldie M. Cobh as adminis-tratrix on October 5, 1960 did not prevent the running of the one year statute of limitations. At that date no cause of action existed in the surviving wife as a widow, she not having sued within the six-month period following the accrual of her cause of action. At that date no cause of action existed in the surviving wife as adminis-tratrix, since deceased left surviving him a wife and minor child. Longan v. Kansas City Rys. Co., 299 Mo. 561, 570, 253 S.W. 758, 761; Meservey v. Pratt-Thompson Const. Co., Mo.App., 291 S.W. 174; Fair v. Agur, 345 Mo. 394, 133 S.W.2d 402; Goldschmidt v. Pevely Dairy Co., supra. An administrator or executor has a cause of action for wrongful death only “If there be no husband, wife, minor child or minor children * * Section 537.080(4). The administratrix as such never had any legal or beneficial interest in the subject matter of the action.

We disagree with the theory of the administrator d. b. n. that the adminis-tratrix filed suit as trustee of an express trust for minor child David who, as a beneficiary of the estate and the real party in interest, is entitled to be substituted as party plaintiff. There is no authority for an ad-ministratrix, suing in a representative capacity as trustee, to bring a wrongful death action for a surviving minor child. In fact, Goldie M. Cobb did not purport to sue as a representative of the minor child or manifest any intent to sue in such capacity. On the contrary, she instituted her action as administratrix, alleging her appointment and the fact that she was acting as adminis-tratrix, and praying for damages that she, “plaintiff,” had sustained. Her petition revealed no intendment to maintain the action in the interests of the minor child David, in whom the claim was vested on October 5, 1960. The administratrix ignored his existence, not referring to him by name and not alleging that deceased left a minor child surviving him. Furthermore, minor child David was not a beneficiary of the estate under § 537.080 to whom any amount received by the administratrix or administrator d. b. n. could have been distributed. The distributees referred to in subsection (4) of § 537.080 do not include the surviving spouse or minor child; they constitute a class of beneficiaries different and separate from the persons named in the first three subsections of § 537.080. Cummins v. Kansas City Public Service Co., supra, 66 S.W.2d, l. c. 924, 926. Where a spouse or minor child survives the deceased, no right of action ever arises or exists in the executor or administrator named in subsection (4). Meservey v. Pratt-Thompson Construction Co., supra. In none of the cases cited by plaintiff in support of the trusteeship theory was an administrator permitted to sue as trustee for a surviving wife or minor child. The quotation from the dissenting opinion in Smith v. Maynard, Mo.Sup., 339 S.W.2d 737, 743, with omitted language italicized, is : "If no one survives who has a prior right, the action may be instituted by the administrator * * * [who] is in effect the trustee of an express trust for the beneficiaries of the estate.” In' Demattei v. Missouri-Kansas-Texas R. Co., Mo.Sup., 345 Mo. 1136, 139 S.W.2d 504, the administrator was suing for a dependent father, brothers and sisters, and not for a surviving wife or minor child. In that case deceased never married. In Troll v. Laclede Gas Light Co., 182 Mo.App. 600, 169 S.W. 337, the deceased was an unmarried adult person without minor child or children.

Plaintiff’s theory of relation back has no application under the instant facts. The rule in this state is that where a suit for wrongful death is instituted within the one-year period of limitation hy one who has no legal right to maintain the suit in the capacity in which suit is filed but who has a beneficial interest in the subject matter of the action, which interest plaintiff alleges by intendment, Slater v. Kansas City Terminal Ry. Co., supra, 271 S.W.2d, l. c. 583, or is filed by some, but not all, of the persons entitled to bring such action, Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, 491 [19] ; Tice v. Milner, Mo.Sup., 308 S.W.2d 697; Cytron v. St. Louis Transit Co., 205 Mo. 692, 104 S.W. 109, the substitution by amendment of the plaintiff suing in the proper capacity, or the joinder of the necessary additional parties plaintiff, after the lapse of the one-year period, will relate back to the time of filing the original action and the intervening running of the statute of limitations will not bar the maintenance of the suit by the substituted plaintiff; but where the original action is improperly filed by a stranger to the action who has no legal or beneficial interest in its subject matter, the substitution of a proper party plaintiff after the statute of limitations has run will not relate back, but will be treated as a new action, which is barred by the statute of limitations. Fair v. Agur; Goldschmidt v. Pevely Dairy Co.; Meservey v. Pratt-Thompson Const. Co.; supra. See St. Paul Fire & Marine Ins. Co. v. Continental Bldg. Op. Co., D.C., 137 F. Supp. 493, 494. This case falls in the latter category. An amended petition filed by minor child David after the expiration of the period of limitation could not relate back because there was nothing to which it could date back. It could not relate back to the “original cause of action” filed October 5, 1960 because on that date there was no cause of action in Goldie M. Cobb, either as surviving wife or as administratrix, to which David’s petition could relate. Nor was there then or at any time any joint cause of action in the mother and minor child to which it could relate. Blessing v. Chicago, B. & Q. R. Co., Mo.Sup., 171 S.W.2d 602. As in Fair v. Agur, supra, the pleadings here “disclosed that a cause of action never had existed in the administratrix, and the time for instituting a cause of action had lapsed,” 133 S.W.2d, l. c. 404, at the time of the filing of the amended petition by the administrator d. b. n. and at the time of the proposed filing of an amended petition by minor child David. The amended petition by minor child David was a new action, barred by the statute of limitations, and the circuit court properly so ruled.

Both in brief and oral argument counsel for plaintiff strongly urges us to follow the “liberal” rule in Cytron and not to apply the “harsh” rule in Goldschmidt, Fair and Mes-ervey. But the rule and reasoning of Cy-tron is inapplicable under the different facts of the instant case. In Cytron an eight-year-old child was killed, giving rise to a joint cause of action in the parents. The father alone brought suit, improperly failing to join the mother as a party. After the limitations period ran the lower court allowed an amendment by which the mother was joined with the father as a party plaintiff. Judge Lamm’s opinion held the amendment proper and that the cause of action was saved from the statute of limitations. In Cytron plaintiff and his wife had a joint cause of action which plaintiff stated in the petition originally filed, and “[t]he cause of action under the amended petition was the identical cause of action counted on in the original.” 104 S.W., l. c. 111. In the instant case plaintiff (administratrix) had no cause of action, individually or jointly. Minor child David’s proposed amended petition was not “the identical cause of action counted on in the original” petition, and could not have been, because the adminis-tratrix on October 5, 1960 did not and could not state a cause of action, either individually in her personal capacity as surviving wife or in her official capacity as administratrix, or jointly with her minor child, arising out of the death of her husband. There is no-parity between Cytron and the instant case. In oral argument counsel for plaintiff forcefully emphasized these words from Judge Lamm’s opinion in Cytron, laying particular emphasis on the italicized language: “ ‘Substituting a party having the legal right to sue, instead of one improperly named as plaintiff, is in no sense the commencement of a new suit, but, so far as defendant is concerned, the suit will be regarded as commenced at the time of the original issuing and service of the summons. * * * 104 S.W., l. c. 111. The administratrix having been “one improperly named as plaintiff,” it was argued that the minor child (having the legal right to sue on October 5, 1960) could be substituted for the adminis-tratrix as party plaintiff. The quotation in Cytron is from United States Life Insurance Co. v. Ludwig, 108 Ill. 514, a suit on several life insurance policies, improperly brought in the names of the assignees of the policies. The one having the legal right to sue was the administrator. After the statute of limitations ran the lower court permitted the substitution of the latter for the former, as party plaintiff. The Supreme Court of Illinois, upholding the amendment, pointed out that the persons in whose names the action was originally commenced “are the parties beneficially interested in this judgment, and the amendment substituting the administrator, in whom was the legal right to sue, as plaintiff, was simply to enable them ‘to sustain the action for the claim for which it was intended to be brought,’ and nothing more.” 108 Ill., l. c. 518. In the instant case the party who originally commenced the action (the administratrix) was not- “beneficially interested” (but was a stranger to the cause of action) and the proposed amendment would not enable the next friend to “sustain the action for the claim for which it was intended to be brought,” because there was no expressed intention on the part of the administratrix to bring the original action for the minor child.

The civil rules to which plaintiff refers do not save this situation for minor child David. In the same way that the tolling provisions and exceptions of general statutes do not apply to special statutes of limitations, Daiprai v. Moberly Fuel & Transfer Co., 359 Mo. 789, 223 S.W.2d 474, 476; Byrnes v. Scaggs, Mo.Sup., 247 S.W.2d 826, 830; Frazee v. Partney, Mo.Sup., 314 S.W.2d 915, 919, 921; Clarke v. Organ, Mo.Sup., 329 S.W.2d 670, 678, the civil rules may not be read apart from applicable special statutes of limitations, and do not create any exception to or relaxation or extension of the limitations provided by § 537.100.

The judgment is affirmed.

COIL and HOLMAN, CC., concur.

PER CURIAM.

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

All of the Judges concur.

      . All section references are to RSMo 1959, Y.A.M.S.

      . § 587.080(4).


author: HOLLINGSWORTH, Judge.

text:
    The STATE of Missouri at the Relation of the CITY OF CHARLESTON, a City of the Third Class, in Mississippi County, Missouri, Relator, v. Haskell HOLMAN, State Auditor of Missouri, Respondent.
    No. 49119.
    Supreme Court of Missouri, En Banc.
    Feb. 28, 1962.
    Rehearing Denied April 9, 1962.

      W. Clifton Banta, Charleston, for relator.
    Thomas F. Eagleton, Atty. Gen., C. B. Burns, Asst. Atty. Gen., Jefferson City, for respondent,
   HOLLINGSWORTH, Judge.

This is an original proceeding in mandamus, wherein relator, the City of Charleston, Mississippi County, Missouri, seeks to compel the respondent, Haskell Holman, State Auditor of Missouri, to register and certify, under the provisions of Section 108.240 RSMo 1959, V.A.M.S., the validity of one of an issue of $300,000 of general obligation bonds recently approved by the voters of said city. Respondent waived issuance of the alternative writ and filed a return denying the legality of said bond on grounds hereinafter set forth. Thereafter, the parties, by stipulation filed, submitted the cause on briefs. The facts are not in dispute.

Relator is a city of the third class operating under city manager form of government. Its petition alleges and the exhibits attached thereto show that the proceedings held by the city for the issuance of said bonds were predicated upon the provisions of § 23(a) of Article VI of the Constitution of Missouri, V.A.M.S., as implemented by Laws 1961, H.B. 41 and 370, §§ 71.790-71.-850, Cum.Supp. 1961, RSMo 1959, V.A. M.S., August 1961 Pamphlet No. 3.

The incorporation of § 23(a), an entirely new provision, and § 27, which is amenda-tory of original § 27 of Article VI, into Article VI of the constitution was submitted to the people under proposed Constitutional Amendment No. 4. Laws 1959, Resolutions, page 10(a). That amendment was approved by a vote of the people at an election held on November 8, 1960. Cum.Supp. 1961, RSMo 1959, p. 44, V.A. M.S. June 1961 Pamphlet No. 2.

Section 23(a), Article VI, provides:

“By vote of two-thirds of the qualified electors thereof voting thereon, any city or incorporated town or village within .any county in this state which has less than four hundred thousand inhabitants according to the last preceding federal decennial census, may become indebted for and may purchase, construct, extend or improve plants to be leased or otherwise disposed of pursuant to law to private persons or corporations for manufacturing and industrial development purposes, including the real estate, buildings, fixtures and machinery; and the indebtedness incurred hereunder shall not be subject to the provisions of Sections 26(a), 26(b), 26(c), 26(d) and 26(e) of Article VI of this Constitution; provided, such indebtedness incurred hereunder for this purpose shall not exceed ten per cent of the value of taxable tangible property in said city, or incorporated town or village as shown by the last completed assessment for state and county purposes.”

Section 27, Article VI, provides:

“Any city or incorporated town or village in this state, by vote of four-sevenths of the qualified electors thereof voting thereon, may issue and sell its negotiable interest bearing revenue bonds for the purpose of paying all or part of the cost of purchasing, constructing, extending or improving any of the following: (1) revenue producing water, gas or electric light works, heating or power plants; (2) plants to be leased to private persons or corporations for manufacturing and industrial development purposes, including the real estate, buildings, fixtures and machinery; or (3) airports; to be owned exclusively by the municipality, the cost of operation and maintenance and the principal and interest of the bonds to be payable solely from the revenues derived by the municipality from the operation of the utility or the lease of the plant.”

Thereafter, by enactment of H.B. 41 and 370, Laws 1961, §§ 71.790-71.850, 1961 Cum. Supp. RSMo 1959, V.A.M.S., the legislature undertook to implement the provisions of §§ 23(a) and 27 of Article VI. That act provides the proceedings required for (1) the issuance of general obligation bonds for a project for industrial development as authorized by § 23 (a); and (2) the issuance of revenue bonds for such a project as authorized by § 27.

The aforesaid act was passed and thereafter approved on June 26, 1961. It carries an emergency clause, the legality of which is challenged. It reads as follows:

“Since existing laws are inadequate to permit municipalities to promote their industrial development, and since industries desiring to locate in the state of Missouri will not wait for an extended time before making commitments for new locations, and since municipalities within the state of Missouri are presently at a disadvantage in competing with municipalities in other states in attracting new industries, the peace, health and safety of the citizens of the state of Missouri are in jeopardy and an emergency exists within the meaning of the constitution. This act, therefore, shall be in full force and effect immediately upon its passage and approval.”

The city, on August 14, 1961, proceeding in accordance with the provisions of the aforesaid enabling act, adopted an ordinance approving a plan and project for the industrial development of the city by the construction of a building of specified dimensions and the leasing thereof to Charleston Manufacturing Company, a corporation, the estimated cost of which was to be paid by the issuance and sale of $300,000 of the city’s general obligation bonds in the manner in said act provided. That plan was, as the act requires, submitted to and by the Division of Resources and Development approved on August 17, 1961. (The Division of Resources and Development was thereafter succeeded by the Division of Commerce and Industrial Development. Laws 1961, H.B. No. 130, 1961 Cum.Supp., Chap. 255, RSMo 1959, V.A.M.S.)

On August 29, 1961, the city, as required by the act, duly passed its ordinance reaffirming said project in the form approved fay the Division of Resources and Development and, in accordance with further provisions of the act, called an election to be held on September 26, 1961, for the purpose of submitting- to the qualified voters of the •city a proposition to authorize the city to incur an indebtedness of $300,000, secured by the bonds in question, for the purpose of providing funds for said industrial development project. At that election the electors approved the proposal by a vote of 1808 for and 177 against. Thereafter, on -October 2, 1961, pursuant to ordinance duly enacted, the city authorized the issuance of said bonds in the form in said ordinance provided and approved by vote of the -people and caused to be prepared, executed and presented to respondent one of said bonds for registration, together with a transcript of the proceedings held by the city and the Division of Commerce and Development and its predecessor in connection with the approval of the project, accompanied by tender of the proper fees. Respondent refused and will continue to refuse to register the bond unless directed by this court so to do.

In support of his position, respondent ■challenges the validity of Constitutional Amendment No. 4 on grounds (1) it violates § 2, Art. XII, of the constitution by submitting two amendments in one, and (2) the ballot title under which said amendment was submitted was invalid in several respects. He also challenges numerous provisions of the act implementing § 23(a) on ■grounds, among others, that (1) some of its provisions are broader than the authorization granted by § 23(a) ; (2) some of its provisions are restrictive of the powers granted by § 23(a) ; (3) some of its provisions constitute an invalid delegation of legislative power to the Division of Commerce and Industrial Development; and (4) the proposition submitted to the voters of the city was not sufficient in form to authorize the project proposed. Of instant concern, however, is respondent’s challenge of the validity of the emergency clause contained in the act on grounds it is in violation of §§ 29 and 52(a), Article III, of the Constitution of Missouri. He asserts that inasmuch as the proceedings inaugurated and held by the city, as provided in the act for authorization to issue the bonds, were completed before the legally effective date of the act they are void as a matter of law. Of course, if that contention is sound, none of the other contentions herein made can properly be before the court for consideration.

Section 29, Article III, insofar as pertinent, reads:

“No law passed by the general assembly shall take effect until ninety days after the adjournment of the session at which it was enacted, except an appropriation act or in case of an emergency which must be expressed in the preamble or in the body of the act, the general assembly shall otherwise direct by a two-thirds vote of the members elected to each house, taken by yeas and nays; * *

Section 52(a), Article III, provides:

“A referendum may be ordered (except as to laws necessary for the immediate preservation of the public peace, health or safety, and laws making appropriations for the current expenses of the state government, for the maintenance of state institutions and for the support of public schools) * * *. Referendum petitions shall be filed with the secretary of state not more than ninety days after the final adjournment of the session of the general assembly which passed the bill on which the referendum is demanded.” (Emphasis supplied.)

Relator offers two answers to respondent’s contention based upon these constitutional provisions. It says, first, that § 23(a) is self-enforcing and that the bonds are valid regardless of whether the enabling act became effective on the date of its approval by the Governor, June 26, 1961, or ninety days after adjournment of the legislature, on October 13, 1961. It is difficult to rationalize that contention with relator’s petition, which alleges the city’s meticulous compliance with the act, and the exhibits attached to the petition, which definitely reveal that the proceedings held by the city in attempting to avail itself of the privilege to incur indebtedness for the purposes authorized by § 23(a) expressly predicated every step taken in that respect upon the provisions of the act. More important, however, is the clear wording of § 23(a) itself. It grants to the city the privilege of creating indebtedness by popular vote in addition to four other such authorized purposes found in Article VI, but, in so doing, it also expressly limits that privilege to the purchase, construction, extension or improvement of plants to be leased or otherwise disposed of pursuant to law for manufacturing and industrial development. Relator tacitly concedes that, until the enabling act here in question became effective, there was no adequate and complete law whereby the city could proceed to incur indebtedness to be secured by the city’s general obligation bonds for the very definitely limited purposes set forth in § 23(a). The act itself so indicates. It is entitled: “An act relating to projects for industrial development, and general obligation and revenue bonds for industrial development projects, with an emergency clause.” Among other provisions, the act makes it a condition precedent to valid issuance of such bonds that a detailed plan to carry out a project for industrial development shall first be submitted to and approved by the Division of Commerce and Industrial Development in accordance with certain standards fixed by the act and that thereafter the bonds be submitted to the voters in the manner by the act prescribed. We are forced to conclude from the express wording of § 23(a) that it was not intended to be and, by its terms, could not be self-enforcing.

The second answer advanced by relator is that under the existing decisions of this court the emergency clause is not in violation of §§ 29 and 52(a) of Article III. There is no doubt that if the act constitutes an emergency measure within the meaning of the foregoing provisions of the constitution, then a properly worded emergency clause incorporated therein would make it effective from and after its enactment and approval by the Governor on June 26, 1961, and the proceedings for the project here in question are (in that respect) authorized by law. But, if the act does not in fact constitute an emergency measure within the meaning of the foregoing constitutional provisions or come within the other exceptions therein enumerated, then, by virtue of the provisions, of § 29, Art. Ill, of the constitution, it did not become effective until ninety days, after the adjournment of the 1961 session of the general assembly and the proceedings taken by the city are without authority of law. This, for the reason that the-1961 session adjourned sine die July 15,. 1961, and the ninety-day bills enacted at that session did not become effective until October 13, 1961. Consequently, if it be determined that the act did not become effective until October 13, 1961, relator cannot maintain any action to enforce registration of the “bonds” here in issue.

In 1920, this court, in construing the purpose and effect of provisions of the Constitution of 1875 from which the above-quoted §§ 29 and 52(a), Article III, of our present constitution are taken, held they, of necessity, were to be read and considered together. And so construing them, it was further held that no act subject to-the referendum provisions of § 52(a) could go into effect earlier than 90 days after the adjournment of the session at which it was enacted; that neither could an act subject to referendum be made effective at an earlier date by the mere legislative declaration that an earlier effective date was necessary for the immediate preservation of the public peace, health or safety; and that the courts are vested with the right and duty to measure the act “by the yardstick of the constitution” and determine whether in fact its provisions are “necessary for the immediate preservation of the public peace, health or safety.” State ex rel. Westhues v. Sullivan, 283 Mo. 546, 224 S.W. 327, 333-339. In that case it was held that an emergency clause in the then recently enacted Workmen’s Compensation Act was not sufficient in form or substance to support a finding that its immediate effectiveness was “necessary for the immediate preservation of the public peace, health or safety.”

The Sullivan case has been consistently approved annd followed by this court en banc in State ex rel. Pollock v. Becker, 289 Mo. 660, 233 S.W. 641, 644; by this court en banc in Fahey v. Hackmann, 291 Mo. 351, 237 S.W. 752, 761, wherein it was held that, despite the recitals of an emergency clause to the effect that the soldier and sailor beneficiaries named in an act authorizing the issuance of $15,000,000 of State of Missouri World War soldier bonus bonds were in “dire need of the partial compensation,” it did not adequately declare “a 'peace, health or safety’ clause” within the meaning of the constitution and that such a clause would have been ineffective if it did; and by this court en banc in State ex rel. State Highway Commission v. Thompson, 323 Mo. 742, 19 S.W.2d 642, 647, wherein the emergency clause declared the necessity of making immediately effective an act authorizing the issuance of $75,-000,000 of State of Missouri bonds to defray the cost of completion of the state highway system and the relief of traffic congestion and other incidental matters, thereby creating an emergency requiring the act to be in effect from and after its passage and approval. It was there held that: “The .act, whether considered as a whole or with reference to a single one of its provisions, cannot be regarded as an emergent police measure. The early completion of the state highway system, the reimbursement of counties for money expended on the state highway system, the relief from congestion of traffic in areas adjacent to St. Louis and Kansas City, and a beginning of supplementary state highways in counties, are all desirable, and when accomplished will no doubt greatly contribute to the public welfare, and indirectly promote the public peace, health, and safety. But it cannot be affirmed that any of these things are necessary for the immediate preservation of the public peace, health or safety. State [ex rel. Westhues] v. Sullivan, 283 Mo. 546, 224 S.W. 327; State [ex rel. Pollock] v. Becker, 289 Mo. 660, 233 S.W. 641; State [ex rel. Harvey] v. Linville, 318 Mo. 698, 300 S.W. 1066.” (Italics that author’s.) See also Inter-City Fire Protection District of Jackson County v. Gambrel, 360 Mo. 924, 231 S.W.2d 193, 199-200.

We have carefully read the cases urged upon us by relator, to wit: State ex inf. Gentry v. Curtis, 319 Mo. 316, 4 S.W.2d 467, and Board of Regents for Northeast Missouri State Teachers College v. Palmer, 356 Mo. 946, 204 S.W.2d 291, and find that they turn upon the contentions made in the briefs in each of those cases filed and that nothing in either case modifies the principles announced in the cases herein-above cited.

The act here in question obviously is not one “making appropriations for the current expenses of the state government, for the maintenance of state institutions, [or] for the support of public schools.” The emergency clause declares, in substance, that in the absence of lawful authority to attract new industries by the means in the act provided, Missouri municipalities cannot effectively compete with those of other states and that, therefore, the peace, health and safety of the citizens are in jeopardy. In its brief, relator also says: “This court can take judicial knowledge of the fact that the economic life of many sections of the State of Missouri, because of vast improvements in and mechanization of agriculture that have taken place in the past few years, is in serious condition. It is no secret that our State has not kept up with the average of national population growth, and that in all our agriculture areas unemployment is a very serious problem. Whether a citizen has a good job, a decent place to live and enough to eat is very necessary for the public peace, health and safety.” Giving due consideration to the declarations of fact contained in the emergency clause and the facts of which relator says we may take judicial knowledge, can we say with conviction that immediate effectiveness of the act was necessary for the immediate preservation of the public peace, health or safety of the citizens of this state ? It could be said that the passage of time has demonstrated that it was not. But, assuming that we should view the matter as of the date the act was under consideration by the legislature, and giving full faith and credit to the facts upon which the legislature based its declaration of an existent emergency and taking judicial notice of all facts then of common knowledge, we still are constrained to hold that no emergency existed within the meaning of §§ 29 and 52(a), Article III, of the constitution.

The petition for writ of mandamus is dismissed.

All concur.