author: LEEDY, Judge.

text:
    STATE of Missouri, Respondent, v. Everett ROSE, Appellant.
    No. 49209.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    Errol Joyce, Brookfield, and Jack C. Jones, Carrollton, for appellant.
    Thomas F. Eagleton, Atty. Gen., Robert E. Hogan, Special Asst. Atty. Gen., Jefferson City, for respondent.
   LEEDY, Judge.

Everett Rose was charged in the Lafayette Circuit Court with the offense of operating a motor vehicle while in an intoxicated condition, a felony under § 564.440, RSMo 1959, V.A.M.S. The case went on change of venue to Clay County where he was convicted and his punishment fixed by the verdict at imprisonment in the county jail for a term of one year. Judgment was entered and sentence pronounced in accordance with the verdict, and after an unavailing motion for a new trial defendant appealed. The case is before us on the transcript on appeal and the state’s brief, no brief having been filed on behalf of defendant. The motion for new trial contains only two assignments of error, one of which challenges the sufficiency of the evidence to support the verdict.

It is uncontroverted that shortly after 7 o’clock p. m., on Sunday, November 16, 1958, at a point between Dover and Lexington on U. S. Highway 24 in Lafayette County, a head-on collision occurred between a westbound 1955 Plymouth sedan and an eastbound 1951 Dodge, in which collision both drivers were injured, one (the Dodge) fatally. It was dark and a light rain was falling (“enough to make you use your windshield wipers,” as put by one witness). Defendant took the stand and admitted that he was one of the two occupants of the Plymouth, but he denied that he was driving, or that he was in an intoxicated condition at and immediately prior to the time of the collision.

The testimony of John Kopp, the state’s only eyewitness to the collision, may be summarized as follows: That about 7 o’clock on the evening in question, as he was driving west on U. S. Highway 24, he “came up behind” the 1955 Plymouth at a point about two miles east of Dover, and followed it closely, traveling at the rate of 60 or 65 miles per hour (except when passing through Dover) until the time of the collision; there was nothing ahead except that one car, the Plymouth, and it was continuously weaving back and forth across the road, making it impossible for him to pass ; he observed a man and a woman in the car, and the man was driving; he followed the car approximately four miles, all the while -conscious of the fact that it was the man who was driving; that as the car he was following was going down a slight grade, ■another car was coming from the opposite direction (eastbound), and as the two cars approached each other, the Plymouth “weaved to the left of the highway and was right in the center of the highway and struck head on this other car * * * I seen they were going to hit and applied my brakes.” They hit, and when they did so, their lights went out, and the cars “flew back apart and a car went to the ditch on ■each side”; the witness then “drove past, right in between them, pulled off on the ■shoulder, stopped and run back,” flashlight in hand, to the first car (the Plymouth), ■opened the door on the right side and inquired if they were “injured bad”; both “were sitting up, talking; the woman was ■sitting on the right side (later she got out, but not then), and the man was “sitting under the steering wheel, behind the steering wheel on the left-hand side”; the back end of the car was in the ditch. When the witness offered assistance, defendant asked if he (witness) would help him (defendant) ■get his car out of the ditch before the'police got there; he did not “necessarily smell” the defendant’s breath or the woman’s breath, but “the car smelled awful strong •of liquor” when he opened the door; he ■noticed there was a large liquor bottle (a .Sth) and several 7-Up bottles lying on the floor behind the front seat, as well as some ■beer cans in a sack. He described defendant’s voice and speech as being “thick and heavy like he couldn’t hardly talk,” and further gave it as his opinion (after being duly qualified so to do) that defendant was drunk.

A highway patrolman (Trooper Wright), who had been nearby, arrived at the scene a matter of minutes after the collision. He did not talk to defendant there, but he did interview and question him (with and in the presence of the Sheriff) at about 8:30 that evening in the hall of the hospital in Lexington. The trooper testified defendant there stated that he was driving the car at the time of the accident, that his wife was with him, and that he was the owner of the car. The trooper further testified there was a “heavy odor” of alcohol on defendant’s breath; that he was “very bleary-eyed and his speech was hardly understandable,” and that, in his opinion, defendant was intoxicated. The testimony of the Sheriff was to the same effect. The Sheriff, who had known defendant “quite a while,” gave it as his opinion that defendant “was certainly intoxicated.”

By his own admission, and hers as well, defendant’s woman companion on the occasion in question was his paramour with whom he had been carrying on an illicit relationship for a considerable time. In any event, he was the only witness called in his own behalf. In brief, his defense was, as previously indicated, that he was neither the driver of the car, nor intoxicated. He testified that his companion had taken over the wheel at Waverly on their return trip from Carrollton to Kansas City on the Sunday afternoon in question, and that he was riding in the car as a passenger, and not as the operator. He detailed their movements during the whole of the afternoon after leaving the Cozy Court Motel near Kansas City on Highway 40 at 2 p. m., but for present purposes a review of that portion of the evidence is not indicated. He denied having had any intoxicants other than a bottle of beer at Lexington, and “swallow” of a gin drink which had been mixed in the car by his companion and served enroute to Carrollton, and two beers apiece at Carrollton.

In rebuttal, the state called the woman and she testified directly and positively to the fact (among other things) that defendant was the driver. She admitted there was a bottle of gin in the car, and that they drank two beers apiece during the course of their afternoon jaunt. She did not recall being close enough to him to smell defendant’s breath, but that they drank nothing else in the car on the return trip. She attributed the accident to a heavy rainstorm which she said they encountered after leaving Dover; that they were going “real slow, I would say thirty-five miles an hour, so we were just crawling,” and that she was directing him as to how far he was from the shoulder (“You’re a foot from the shoulder, you’re two foot, you’re doing all right”) when “all at once was this impact.”

Enough has been set forth to demonstrate there was abundant substantial evidence which would have warranted the jury in finding defendant guilty of the offense charged, so defendant’s assignment that the evidence is insufficient to support the verdict must be, and it is, disallowed.

The only other assignment of error in the motion for new trial complains of the admission of “evidence and testimony offered by the state treating of a test of defendant’s blood for alcoholic content and the opinion of the chemist based upon such1 test that defendant was under the influence of alcohol and in an intoxicated condition at the time of the accident.” The reasons assigned in this connection were: (1) That the evidence showed the taking of the blood to have been without defendant’s permission or authority; (2) there was no proof or competent evidence of continuous possession and control of the receptacle containing the blood sample; (3) there was no legal and competent evidence identifying the receptacle as containing defendant’s blood; and (4) there was no fact foundation laid to support the opinion by the chemist

There was evidence to the effect that such a test had been made at the technical laboratory of the State Highway Patrol in Jefferson City on November 18, the chemist who made the test having been called as a witness for the state and so testified. The defendant strenuously objected to different portions of the chemist’s testimony and, in fact, on the various grounds above noted, sought to exclude all evidence in relation to the test. The court sustained many of the objections, and overruled others, some of which were heard and ruled out of the presence of the jury. The record hardly supports the charge that the chemist was permitted to state his opinion, based on the test, that the defendant was under the influence of alcohol and in an intoxicated condition at the time of the accident; but even if it did, and without pausing to inquire into the merits of the question which would be posed thereby, the assignment completely ignores the ultimate ruling of the court in excluding all of the testimony in relation to the blood test, as disclosed by the following excerpts from the record:

“THE COURT: The motion to strike the testimony in regard the blood test is sustained.
“MR. JOYCE: And the jury instructed not to consider it.
“THE COURT: The jury will not consider the evidence in regard to the, that’s been offered in regard to the blood test.”

Immediately following this ruling, the defendant moved the court to discharge the jury, which motion was overruled. The rulings on both the motion to strike and the the motion to discharge the jury were discretionary matters, and, of course, reviewable for abuse. But no abuse has been charged in either instance. Indeed, the motion for new trial does not complain of the ruling on the motion to discharge, so there is nothing to review in that connection.

We have examined those portions of the record which it is our duty to examine under Rule 28.02, V.A.M.R., whether error has been assigned thereon or not, and find no reversible error therein.

The judgment should be, and it is, affirmed.

All of the judges concur.


source: Caselaw Access Project

author: HYDE, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Joseph WARREN, Jr., Appellant.
    No. 49517.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.
    Rehearing Denied April 8, 1963.
    Dewey S. Godfrey, Jr., St. Louis, for appellant.
    Thomas F. Eagleton, Atty. Gen., James E. Darst, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   HYDE, Judge.

Defendant was convicted of forcible rape (Sec. 559.260) and sentenced under the habitual criminal act (Sec. 556.280) to 45 years’ imprisonment. (Statutory references are to RSMo and V.A.M.S.) Defendant contends the court erred in failing to direct a verdict of acquittal, claiming “the testimony of the prosecutrix was uncorroborated, contradictory and vague and therefore insufficient to sustain the verdict of guilty.”

The State’s evidence showed the following. Prosecutrix, who was a nurse’s assistant at Barnes Hospital, locked herself out of her upstairs apartment (in a four-family flat) on Monday, September 11, 1961, and went to find the girl who lived in an adjoining apartment, to let her in to that apartment. From that apartment she could get to hers by a porch, the door to which she had left open. She did not find the girl at her sister’s home where she thought she would be but met defendant who said he knew the girl she was looking for and he offered to get a ladder to get to the porch and let her in. Prosecutrix accepted this offer and took care of defendant’s little daughter who was with him while he did so, then visited with him and the child in her apartment for a while. He told her his first name but she did not learn his last name. Two days later, Wednesday, defendant came to her door about noon offering to sell purses and clothes but prosecutrix said she did not want to buy any and did not let him in. The next day, Thursday, defendant came back about noon and said he still had some purses but prosecutrix refused to buy and told him to go on. (Prosecutrix worked at the hospital at night and usually got up about noon.) The next day, Friday, about noon, defendant knocked on her door and when she opened it stuck his foot in the door. Prosecutrix tried to run upstairs but defendant caught her and put his hand over her mouth when she called the name of the man who cared for the house and lived in the ground floor apartment. Prosecu-trix was “tussled” through the living room of the apartment and into the bedroom where her duster was torn from her body, and she was thrown onto the bed. She tried to knock over furniture to attract the attention of the ground floor occupant. Defendant got on top of the prosecutrix, held one hand at her throat, and attempted to get her pajamas off of her body with the other. He told her to “shut up” or he would choke her to death. Prosecutrix broke free from the defendant and attempted escape through the kitchen, but was again caught by defendant in the kitchen. Defendant then struck prosecutrix in the neck, knocking her to the ground, seized a butcher knife from the sink, and put it to her neck. He stated that if she did not submit, he would kill her, and that if she did not cease crying, he would force her to commit an act of sodomy on him. To divert him, prosecutrix said that she was a diabetic and might have a seizure and die without her insulin; but defendant unzipped his pants and had a complete act of intercourse with her. After offering her money, which she refused, the defendant left the apartment, taking the knife with him.

Prosecutrix, crying, went to the apartment of downstairs occupant, told him what had taken place and called the police. The downstairs neighbor testified that he was shaving, when he heard someone call his name (he thought in a normal tone of voice) and answered but had no response. He also heard a noise like glass breaking. The police officer who answered the calí said prosecutrix was in “a hysterical state * * * crying and screaming” and that he had a hard time getting out of her what had happened. He said “the apartment was disarranged * * * furniture was shoved to the side and the bed * * * in a disheveled condition * * * bed clothing all scattered around, a pillow was on the floor.” Prosecutrix was sent to a city hospital for examination. The hospital admission card signed by a doctor stated: “Soreness in neck — young female, crying — - si. tenderness left side of neck; no abrasions or lac, pelvic superficial laceration about 1/2 cm just to the left of vaginal opening, marital intriotus, vaginal vault of about 5 plus CC’s of whitish muco serous.”

As stated in defendant’s brief: “The testimony on behalf of the defendant was for the most part, directed at showing that subsequent to their first meeting, the defendant and the prosecutrix struck up-a friendship which had as its primary step, an attempt of the defendant’s part to sell the prosecutrix a purse, and as its culmination, a liaison in the prosecutrix’s apartment on the mid-morning of September 15th. Interspersed between these occasions-were other intimacies in the basement of an after-hours liquor establishment and meetings between the two outside her doorstep and at Barnes Hospital. The defendant contended that he did, in, fact, have-intercourse with the prosecutrix in her apartment at the mid-day on the 15th of' September; that it was an act consented to by prosecutrix; and further that it was-followed by a sodomous act by the prose-cutrix upon the defendant. The defendant testified that his failure to reciprocate in-kind on the prosecutrix as by previous, agreement, caused her to become chagrined, and as a result this difficulty arose.”

Defendant cites State v. Akers, Mo. Sup., 328 S.W.2d 31, 33, in which we said: “The uncorroborated evidence of the prose-cutrix will sustain a conviction of incest. or rape, but when the evidence of the prosecutrix is of a contradictory nature, or when applied to the admitted facts in the case her testimony is not convincing but leaves the mind of the court clouded with doubts, she must be corroborated, or the judgment cannot be sustained.” Although in that incest case, the prosecutrix did not tell anyone about the sexual intercourse for two weeks, we affirmed the conviction because of corroborating circumstances; which was also the result reached in the cited rape case of State v. Weekly, Mo.Sup., 223 S.W.2d 494. In State v. Burton, Mo.Sup., 196 S.W.2d 621, and State v. Tevis, 234 Mo. 276, 284, 136 S.W. 339, 341, cited by defendant, the evidence was very different from this case. In the Burton case, the prosecutrix voluntarily remained with the boys after the claimed rape when they went to a dance and allowed them to take her home, although she had several opportunities to leave them before and after the dance, and said nothing about it when she came home. The case was reversed and remanded for a new trial because of this doubtful testimony. In the Tevis incest case, prosecutrix claimed incestuous conduct for five years, as to which she waited 13 months after the last act before telling her mother. It was likewise reversed and remanded for a new trial.

In this case, prosecutrix immediately called the police and was crying and in a condition described as “a hysterical state” by the first witnesses to see her, the downstairs occupant and the police officer. It is argued that, if the struggle prosecutrix described had taken place, the downstairs occupant would have heard more than he said he did and also that prosecutrix would have been injured to a greater degree than the hospital record showed. Our conclusion is that the testimony of the prose-cutrix and the corroborating circumstances were sufficient to make a case for the jury so that the court properly overruled defendant’s request for a directed verdict of acquittal.

Defendant’s other claim of error is “in admitting into evidence testimony relative to another offense with which the defendant was not charged herein and in further commenting to the Jury relative to this testimony and thereby placing undue influence and emphasis on the testimony.” The first concerned testimony as to defendant’s attempted sodomous relations. Obviously this was part of the res gestae. State v. Taylor, 320 Mo. 417, 8 S.W.2d 29; State v. Fisher, Mo.Sup., 302 S.W.2d 902; State v. Moore, Mo.Sup., 353 S.W.2d 712, 714, and cases cited.) Furthermore, there was no objection to the testimony of prose-cutrix concerning defendant’s sodomous purpose, although his counsel was first informed by the State’s attorney that this would be stated by prosecutrix, and was given an opportunity to object by the Judge; and there was no claim in the motion for trial of error in admitting it. Apparently, defendant wanted this in the case because of his claim that sodomous relations were suggested and accomplished by prosecutrix. The claim made in the motion for new trial and argued in the brief relates to comment of the Judge when defendant was asked by his counsel to state the circumstances of the sodomous relation, claimed by defendant to have been accomplished by prosecutrix. The State’s attorney objected that this was repetitious. (Defendant had previously testified about it.) The Judge said he would sustain the objection unless any juror wanted to hear more. He stated: “I’m making no comment on what has preceded or what you have heard before, but if any member of the jury desires to hear anything additional to what you have heard already in answer to the question propounded, raise your hand?” One juror did so and he overruled the objection. There was no objection or request by defendant’s counsel, who then continued the inquiry with several more questions. Thus nothing was preserved for appellate review but in any event no prejudicial error appears.

We have examined the record as required by our Rules 28.02 and 28.08, V.A. M.R. and find it sufficient as to those matters therein specified.

The judgment is affirmed.

All of the Judges of the Division concur and HUNTER, Special Judge, concurs.


text:
    John F. HEDGPETH, Respondent, v. B. J. MADDUX and Nadine Maddux, Appellants.
    No. 49437.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.
    Rehearing Denied April 8, 1963.
    Theo. G. Scott, Buffalo, Clarence O. Woolsey, Robert C. Fields, Allen, Woolsey & Fisher, Springfield, for appellants.
    Bill Davenport, Ozark, Sam Appleby, Ozark, for respondent.
   HYDE, Judge.

Plaintiff’s action was for ejectment and damages. Defendants claimed title by adverse possession, asked-for determination of title and to be decreed the owners. The court found against defendants’ claim and ordered that plaintiff should recover possession with damages. Defendants have appealed.

Defendants had been in possession less than three years when this suit was commenced so that their claim of title by adverse possession depended upon the claims and possession of their predecessors in title. The court found that “defendants have wholly failed to sustain the burden of proof on the defense of adverse possession” because “defendants’ predecessors in title, who have owned the land within the last ten years, testified they were making no claim to any land not owned by them or to any definite landmark.”

The land involved is in the City of Ozark in Fractional Block 6 of the new town of Ozark and in Block A of Robertson’s Addition which adjoins Fractional Block 6 on the west (with no street or alley between) being on the south side of North Street (an east and west street) and on the west side of Spring Street (a north and south street) which was State Highway 65. Defendants’ deed of December 17, 1957, conveyed to them Lot 1 of Fractional Block 6 (being the northern lot of the three lots in that Block, each 64 feet long north and south) and Lot 5 of Block A, except the south 17(4 feet thereof. (There were two lots on the east side of Block A each 96 feet long north and south.) Plaintiff's deed of August 2, 1944, had conveyed to him all the rest of Fractional Block 6, being all of Lots 2 and 3, all of Lot 6 of Block A, and the south 17(4 feet of Lot 5, Block A.

Thus the land conveyed to defendants is directly north of the land conveyed to plaintiffs and only came south from North Street 64 feet along the Highway (the length of Lot 1, Block 6) and 78(4 feet in Lot 5, Block A adjoining (96 less 17(4) so it is the north part of the land described in plaintiff’s deed that is in dispute. The court found this was the north 26 feet of Lot 2 of Fractional Block 6 and the north 8(4 feet of the south 17(4 feet of Lot 5 of Block A. However, according to defendants’ answer, they were claiming still more land (and so state in their brief) being not only 90 feet south along the Highway which included the north 26 feet of Lot 2, Block 6 (conveyed to plaintiff) but also 105 feet south from North Street in Block A (west of Block 6) which would take all of Lot 5 and the north nine feet of Lot 6, Block A. Defendants had a survey which covered this area (105 feet south in Block A and 90 feet south in Block 6) which their surveyor said covered all the area believed to have been used by defendants’ grantor Ashley Vaughn. This covered Lot 1 and the north 26 feet of Lot 2 of Block 6 (90 feet north and south), then on the west went 15 feet farther south taking all of Lot 5 (96 feet) and the north 9 feet of Lot 6, Block A (105 feet north and south). The description in defendants’ deed was not considered in making this survey.

Defendants’ claim of title by adverse possession thus depends on the testimony of Vaughn, who got title in 1948 from his mother, who had acquired it in 1944. Vaughn moved to Kansas City in 1955 and sold to defendants through a realtor. There was a two-.room house on the land when the Vaughns got it, which was used as a grocery store. Plaintiff’s survey showed the south wall of this building was 21 feet north of corner marked by plaintiff’s surveyor as the northeast corner of the south 17(4 feet of Lot 5, Block A, described in plaintiff’s deed and was 6 feet north of the north line of Lot 2 of Block 6, so it did not encroach on the land described in plaintiff’s deed. However, Vaughn built a small building south of the store building (said to have been attached to it) described as a “lean-to” used as a cafe or hamburger shop and rented for a fruit stand when Vaughn went to Kansas City. Vaughn said this small building was about 16 by 12 feet and that its south end was approximately 23 or 24 feet south of the main building so it did encroach on the land described in plaintiff’s deed, although not as far as he estimated according to plaintiff’s survey. (This small building was removed by defendants.) Vaughn also said that at the time his mother got the land there was an old picket fence about two feet south of the small building. This fence was north of a maple tree, the stump of which (it was cut down by defendants) was located by plaintiff’s survey as being only 15 feet south of the south line of Lot 1 of Block 6, at the northeast corner of the south 17[4 feet of Lot 5, Block A, described in plaintiff’s deed. Vaughn thought the picket fence was the line between his land and plaintiff’s land. The fence fell down while Vaughn owned the land and he removed it. The picket fence did not go all the way through to the west line and how much of it was on Lot 5, Block A, was not definitely shown.

According to plaintiff’s survey, the line of the picket fence would be the north line of the south 17yz feet of Lot 5, Block A, which would have made the line of the picket fence through Lot 5 conform to the description in plaintiff’s deed. As to the part below this line in Lots 5 and 6 of Block A, now claimed by defendants, Vaughn testified: “Q And did you also claim the offset to the west of it, being 15 feet diverted to the south, did you claim that to be your land? A I claimed it. But I made no object to get possession of it, because I didn’t need it. And the only way we ever used it, my wife, and a lady by the name of Mrs. Stice, put a little garden in it. * * Q I say, regardless of where the picket fence was, you were claiming beyond it, back where the jog was, the fifteen foot jog to the south. A I never did ask possession of it. I didn’t need it. But I claimed everything that was on that abstract.” He said the use as a garden was only for one year about 1948. There was evidence that brush grew up on this land and that apple crates and other debris were thrown on it by Vaughn’s tenants.

Since this case was tried by the court, we review the record de novo upon both the law and evidence, as in suits of an equitable nature, and may make our own findings of fact; but the judgment will not be set aside unless clearly erroneous and due regard will be given to the opportunity of the trial court to judge the credibility of the witnesses. Supreme Court Rule 73.01 (d), V.A.M.R. Ennis v. Korb, Mo., 347 S.W.2d 671, 675; Townsley v. Thielecke, Mo., 349 S.W.2d 902, 906.

Vaughn did say that he and his-mother both claimed to the picket fence. He also said he claimed all that his deed called for and that he never told plaintiff that he was claiming any other land than his deed called for. However, he did have possession of the land in Lot 1, Block 6, to the picket fence and used it by building the small building on it. Plaintiff also seems to have considered the picket fence to mark the line between his land and the Vaughns. Controlling principles were stated in State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, 176, as follows: “The principle, as stated in all of our prior decisions, may be reduced to this: If the possessor occupies the land in question intending to occupy that particular piece as his own, his occupancy is adverse. It is not necessary that he intend to take away from the true owner something which he knows belongs to another, or even that he be indifferent as to the facts of the legal title. It is the intent to possess, and not the intent to take irrespective of his right, which governs. Possession is a legal concept. It involves two things: A present or, in the case of constructive possession, a past ability to control the thing possessed plus an intent to exclude others from such control. Or, in the language sometimes used in the cases, to exercise dominion over the object possessed. One may have such an intent in the case of property actually belonging to another, because he intentionally wants to take it away from the owner. But he may also have this intent because he is mistaken as to the facts of legal ownership.” See later cases of Agers v. Reynolds, Mo., 306 S.W.2d 506, 511; Barton v. Pauly, Mo., 350 S.W.2d 748, 752, and cases cited. Applying these principles, and finding plaintiff’s survey to correctly locate the line of the picket fence from the location of the tree stump, which Vaughn’s testimony shows was on the south side of the fence, our conclusion is that the evidence shows title by adverse possession in defendants of the north 15 feet of Lot 2, Block 6, only. Thus, we also find that defendants have not sustained their burden of proof to show title by adverse possession to any of the land in Block A (either in Lot 5 or Lot 6) described in plaintiff’s deed and we hold that they have no title to any land in Block A not described in their deed.

The judgment is reversed and cause remanded with directions to decree title in defendants to the north 15 feet of Lot 2, Fractional Block 6, and to adjudge that plaintiff recover possession of all of the rest of the property involved with damages as heretofore awarded.

All concur.


author: STOCKARD, Commissioner.

text:
    Emma May EDWARDS, Respondent, v. Carl W. MELLEN and Estelle Mellen, Appellants.
    No. 49502.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    James J. Amelung, Holtkamp, Miller, Risch & Amelung, St. Louis, for appellants.
    Lackland H. Bloom, Gordon I. Herzog, St. Louis, Neuhoff & Schaefer, Ralph R. Neuhoff, Jr., St. Louis, for respondent.
   STOCKARD, Commissioner.

Defendants have appealed from a Judgment in the amount of $30,000 entered pursuant to jury verdict in plaintiff’s suit for personal injuries resulting from a fall on the stairway of defendants’ apartment building.

Plaintiff, a 49-year-old widow who lived alone, was a tenant in defendants’ apartment building located at 4434 Castleman Avenue in the City of St. Louis. On the evening of April 9, 1958, shortly before 7:30 o’clock she left her third floor apartment to go to a neighborhood drug store and fell down a stairway leading from the third floor to the second floor. The negligence pleaded and submitted to the jury was the alleged failure of defendants to comply with Ordinance No. 44,886 of the City of St. Louis which provided that “The surfaces of landings, platforms, and treads of stairways, [in apartment buildings such as that of defendants] shall be illuminated to an intensity at least of 0.6 foot candle.” Defendants assert that plaintiff did not make a submissible case, and their principal contention is that there was no evidence from which it could be found that insufficient light was the proximate cause of her fall.

Defendants maintained a 60-watt electric light in the ceiling over the area where plaintiff fell which, when burning, lighted the area at the top of the stairway and the treads of the stairway to an intensity of 3.0 foot candle. At the time plaintiff fell this electric light admittedly was not burning because the bulb had burned out, and the intensity of the light from other sources on the surface of the area at the top of the stairway (assuming that it was a “landing” within the meaning of the ordinance) and on the surface of the treads of the stairway was less than 0.6 foot candle. Plaintiff’s testimony was to the effect that she did not know what caused her to fall. She was familiar with the stairway but had not previously used it at night when the ceiling light was not burning. She stated that she could see the steps but not “clearly,” that they were “shadowy,” and that she fell when she “started to go down the steps, to step out for what she thought was the first step down.” She does not claim that any defect existed in the floor or stairway which was concealed by reason of the lack of light. An expert witness testified that when a person leaves a lighted area and enters a darkened area his eyes do not adjust immediately to the changed conditions and as a result there is a tendency to misjudge distance. Plaintiff fell after leaving her lighted apartment and entering the darkened area at the top of the stairway. From the above evidence it is a reasonable, and therefore permissive, inference that because of the lack of adequate light in the areaway plaintiff misjudged the location of the first step and fell. This evidence would authorize the submission to the jury of the issue of defendants’ negligence in not providing at least the minimum intensity of light required by the ordinance. The question remaining is whether there was a proper submission of such negligence.

At plaintiff’s request, and over defendants’ objection, the trial court gave Instruction No. 6 which was as follows: “The Court instructs the jury that by Ordinance of the City of St. Louis, in force and effect on April 9, 1958, it was the duty of the defendants, Carl W. Mellen and Estelle Mel-len, as owners of the apartment at 4434 Castleman Avenue, in the City of St. Louis, to provide artificial lighting of the surface of the landing at the top of the stairway leading to the third floor of said apartment and the surface of the treads of the stairway leading from the third floor to the platform between the third floor and the second floor, at all time when required to maintain the illumination at any point on said surfaces at 0.6 foot candle. If you find and believe from the evidence that on April 9, 1958, at the time plaintiff undertook to descend the stairway leading from her apartment on the third floor west at 4434 Castleman Avenue that the lighting on the surface of the third floor landing and on the surface of the treads of the stairway-leading from the third floor landing to the platform between the third floor and the second floor was less than 0.6 foot candle, then the failure of the defendants to provide artificial lighting of said surfaces to an intensity of 0.6 foot candle, if you so find, was negligence on the part of defendants as a matter of law; and if you further find that plaintiff, while exercising ordinary care for her own safety, as a direct and proximate result of such negligence, if any, fell down said stairway, and as a result thereof was injured, if you so find, then your verdict must be for the plaintiff and against the defendants.”

Defendants first contend that this instuction erroneously declared that failure to comply with the minimum requirements of the ordinance constituted negligence “as a matter of law” when there was substantial evidence of a “legal excuse” or a “justifiable violation.” This presents the question of whether there can be any legal excuse or justification for failing to comply with such an ordinance requirement, or whether the duty thus created is absolute and unyielding for which no excuse for a violation is recognized.

Plaintiff cites and relies principally on Monsour v. Excelsior Tobacco Co., Mo. App., 115 S.W.2d 219, in which the negligence submitted was the failure to provide the intensity of light on a stairway required by an ordinance. In answer to the argument of the defendant in that case that there was no evidence that the light had been out for a sufficient time to charge him with notice, the St. Louis Court of Appeals held that the “defendant’s duty to furnish light for the common halls and stairways was an absolute duty created by ordinance, so that any nonobservance of such duty was negligence per se and actionable if the failure to have had the light burning was the direct and proximate cause of plaintiff’s fall and injury.” Two years later, without reference to the Monsour case, the St. Louis Court of Appeals handed down its opinion in Lochmoeller v. Kiel, Mo.App., 137 S.W.2d 625, which pertained to a submission of negligence based on the failure to equip a motor vehicle with two sets of adequate brakes in good working order as required by a statute. It was there held:

“When a statute or ordinance, * * has arbitrarily created a duty or fixed a particular standard of care, the failure to observe such duty or standard of care constitutes negligence per se, and when, in the trial of a case, the other essential elements being established, proof is adduced to show that the defendant failed to observe the duty thus imposed upon him, a case of negligence is made for the jury in the first instance, that is, potentially or prima facie, whether or not such failure on defendant’s part would have amounted to the disregard of any duty existing apart from that created by the statute or ordinance.
“Even so, however, there may still be facts and circumstances present in a given case which will excuse a technical violation of a statute or ordinance and render it improper for the court to declare as a matter of law that the particular violation constituted actionable negligence, and so, when the plaintiff shows such violation, it then devolves upon the defendant, if he desires and is able to do so, to offer proof in legal excuse or avoidance of his failure to have observed the duty created by the statute or ordinance. Ordinarily such an excuse would require the proof of something occurring wholly without the fault of the person charged with the violation, which had made it impossible for him to comply with the requirement of the statute or ordinance at the moment complained of, and which due care and prudence could not have guarded against. Where such character of proof appears from the defendant, the question of whether his technical but unintentional violation of the statute or ordinance amounted to actionable negligence is one for the jury to determine from all the facts and circumstances shown by the evidence, and it would be only where, admitting the violation, he failed to offer any legal excuse therefor, that negligence could be said to be established as a matter of law.”

Although the Lochmoeller case involved the violation of a statute which required a certain standard for the brakes on a motor vehicle, and the Monsour case pertained to the violation of an ordinance which established a standard for lighting in certain buildings, the principle in each case is the same, and unquestionably, even though not mentioned, the Lochmoeller case disapproved or rejected the ruling of the Mon-sour case. This court has on numerous occasions announced the same principle as that set forth in the Lochmoeller case. See particularly Wilson v. Shumate, Mo., 296 S.W.2d 72, 75, where it was said:

“In recognition, however, of the principle that the statute [requiring that motor vehicles be provided at all times with two sets of adequate brakes, kept in good working order] must be reasonably construed and applied, defendant could offer proof of legal excuse or avoidance of his failure to have observed the duty created by the statute, i. e., proof that an occurrence wholly without his fault made compliance with the statute impossible at the moment complained of and which proper care on his part would not have avoided. Upon adducing substantial evidence tending to so prove, it was then a jury question as to whether defendant was negligent for failure to have provided a foot brake in good working order.”

In addition, see Beezley v. Spiva, Mo., 313 S.W.2d 691; Rice v. Allen, Mo., 309 S.W. 2d 629; Leek v. Dillard, Mo.App., 304 S.W. 2d 60; 65 C.J.S. Negligence § 19h, p. 426; Harper and James, Torts, Vol. 2, § 17.6, p. 997; and the numerous Missouri cases cited in Chap. 12, entitled Legal Excuse and Unavoidable Accident Instructions, Missouri Civil Instructions, published by the Missouri Bar. See also the cases from other jurisdictions cited in the extensive annotation in 25 A.L.R.2d beginning at page 496, and particularly the cases cited on pages 517-528.

Plaintiff argues that the above rule should not apply in this case because the defendants failed to offer any evidence which would constitute a “legal excuse.” We must disagree. Defendants’ evidence, if believed, showed that they had proper and adequate lighting facilities in the apartment building, and that when the light bulb located in the ceiling over the area where plaintiff fell was burning the light intensity was greater than the requirements of the ordinance. Defendants caused a daily inspection to be made of the light bulbs in the apartment building, and an inspection was made about 4:00 o’clock in the afternoon of April 9, 1958. At that time the light bulb located over the area where plaintiff fell was burning. In addition, it was burning within fifteen minutes before plaintiff fell. We know from common experience that at times electric light bulbs burn out without warning. The evidence offered by the defendants, if believed, constituted “proof that an occurrence [the burning out of the light bulb] wholly without [defendants’] fault made compliance with the [ordinance] impossible at the moment complained of and which proper care on [defendants’] part would not have avoided.” By reason of this evidence it became “a jury question as to whether [defendants were] negligent for failure to have [provided the 0.6 foot candle of light].” Wilson v. Shumate, supra, 296 S.W.2d at p. 75.

Plaintiff next argues that defendants did not defend the suit on the theory of “legal excuse” or “justifiable violation” of the ordinance, and she also contends that before such defense may be raised defendants must admit that a violation occurred. The offer by defendants of the evidence above mentioned demonstrates that they did defend the suit on this theory. We need not rule whether they had to admit the violation of the ordinance in order to raise the defense because they did so in this case. It is true that they contended that the lighting was adequate, but they did so on the theory that the area was a “hallway” where the ordinance required only 0.4 foot candle of light. Plaintiff contended it was a “landing,” and the trial court ruled that it was. Defendants’ evidence was that the light intensity was no more than 0.5 foot candle. That amounted to an admission that a violation of the ordinance occurred if the area was in fact a “landing” as plaintiff contended and submitted in her verdict-directing instruction.

We conclude that under the circumstances of this case it was prejudicially erroneous for the trial court to instruct the jury that “the failure of defendants to provide artificial lighting of said surfaces to an intensity of 0.6 foot candle” “at the time plaintiff undertook to descend the stairway” constituted “negligence * * * as a matter of law.”

Defendants pleaded contributory negligence on the part of plaintiff, and they requested and the trial court gave an instruction submitting that defense. In an apparent attempt to comply with the rule in Moore v. Ready Mixed Concrete Company, Mo., 329 S.W.2d 14, 23-24, plaintiff “referred” in her verdict-directing instruction to defendants’ defense of contributory negligence in this manner: “ * * * and if you further find that plaintiff, while exercising ordinary care for her own safety, as a direct and proximate result of such negligence, if any, fell down said stairway * * We agree with defendants that the phrase “while exercising ordinary care for her own safety,” set off as it is by commas, assumes ordinary care on the part of plaintiff and does not negative contributory negligence. The Moore case requires that the reference in plaintiff’s verdict-di-rectmg instruction to the submitted defense of contributory negligence be made in such manner that the two instructions are not in conflict. In this case, as worded, the two instructions do conflict.

In view of the result we have reached it is neither necessary nor advisable to rule the other assignments of error presented by defendants in their brief. In a new trial, if held, plaintiff necessarily must proceed on a different theory. The parties will have the benefit of the contentions made in the briefs to this court and may be guided thereby if so advised.

For the prejudicial error in giving Instruction No. 6, the judgment is reversed and the cause remanded.

BOHLING and BARRETT, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    Ralph F. ARNOLD et al., Appellants, v. Louis G. BERRA, Collector of Revenue for the City of St. Louis, Respondent.
    No. 49134.
    Supreme Court of Missouri, En Banc.
    March 11, 1963.
    Rehearing Denied April 8, 1963.

      Stanford S. Meyer, Meyer & Meyer, Belleville, Ill., Hillary H. Hallett, Wise-man & Hallett, Alton, Ill., John L. Sullivan, St. Louis, for appellants.
    Thomas J. Neenan, City Counselor, Thomas F. McGuire, Associate City Counselor, John J. Fitzgibbons, Asst. City Counselor, St. Louis, Paul Welch, Donald Gunn, St. Louis, for respondent Louis G. Berra, Collector of Revenue for City of St. Louis.
   BARRETT, Commissioner.

The plaintiff, Ralph F. Arnold, a resident of Illinois, on behalf of himself and other similarly situated nonresidents of Missouri, instituted this action for a declaratory judgment and an injunction contesting the validity of Ordinance 47063, the earnings tax ordinance of the City of St. Louis. The ordinance and its amendments in 1954, 1959, 1960, and 1961, were enacted after the General Assembly’s new enabling act, Laws of Missouri 1953, 2nd Ex.Sess., p. 14, authorizing any constitutional charter city to levy and collect, as far as material here, an earnings tax on the salaries, wages and other compensation of its residents and “on the salaries, wages, commissions and other compensation earned by nonresidents of the city for work done or services performed or rendered in the city * * 7 V.A.M.S. Supp., Sec. 92.110. Incidentally, the plaintiff does not challenge the validity of the enabling act as the parties challenged the original act (Laws Mo. 1951, p. 334) in Walters v. City of St. Louis, 364 Mo. 56, 259 S.W.2d 377. The trial court decreed the ordinance to be reasonable, constitutional and valid and specifically found that the allegations in the plaintiff’s pleadings did not entitle him to relief and, therefore, dismissed the action and the plaintiff has appealed.

In his petition the plaintiff alleges that he is a resident of Illinois, that he and those similarly situated have been continuously employed “by various boards, offices, commissions and agencies of the United States” and that their employment requires the performance of their duties in the City of St. Louis. After alleging the facts with respect to the enactment and enforcement of the earnings tax ordinance, the plaintiff alleges that he and other residents of Illinois are subjected to numerous taxes by the State of Illinois and its political subdivisions "which said taxes duplicate in source or use” the tax levied by St. Louis. The petition alleges that the tax ordinance is unconstitutional and invalid in several respects, but upon this appeal it is urged that the ordinance is invalid for two reasons: (1) that it infringes the Fourteenth Amendment of the Constitution of the United States, because it “deprives non-resident workers in the City of St. Louis, of property without due process of law by exacting a tax from them without any corresponding benefit” and (2) that it “places an undue burden on interstate commerce by taxing plaintiffs’ gross incomes and by duplicating in source or use taxes levied by the State of Illinois and its political subdivisions” and thus contravenes the commerce clause, Art. 1, Sec. 8, Constitution of the United States.

A so-called “earnings tax” is “a species of income or excise tax,” and in substance the ordinance involved here and its predecessors were modeled after similar ordinances in Philadelphia and Toledo. Carter Carburetor Corp. v. City of St. Louis, 356 Mo. 646, 653, 654, 203 S.W.2d 438, 440, 441. But the first earnings tax ordinance, involved in the Carter Carburetor case, was declared invalid because there was then, 1947, no specific or implied authority in the City of St. Louis to levy such a tax. As soon as the specific authority to levy the tax was granted (Laws Mo.1951, p. 334) and an ordinance enacted, both the enabling act and the ordinance were upheld as against the constitutional and other objections then made against them. Walters v. City of St. Louis, supra; Walters v. City of St. Louis, 347 U.S. 231, 74 S.Ct. 505, 98 L.Ed. 660. The specific objection first made here, that a tax is exacted without corresponding benefit or service and therefore federal due process is infringed, was not urged in those cases but the same argument has been made in other jurisdictions and decided against the appellant.

In Angell v. City of Toledo, 153 Ohio St. 179, 91 N.E.2d 250, it was pointed out that the taxing city afforded fire and police protection to the plaintiff’s employer and thus afforded the nonresident a protected place in which to work. In a case involving the Philadelphia ordinance it was pointed out that there was an obligation on the city to protect all persons, that its obligation might be called into play any time and that at all times the nonresident plaintiff had the right to use the city’s streets, bridges, police protection, as well as its other facilities. Kiker v. City of Philadelphia, 346 Pa. 624, 31 A.2d 289; certiorari denied 320 U.S. 741, 64 S.Ct. 41, 88 L.Ed. 439. And, in another Ohio case, it was pointed out that the nonresident employee used the city streets which of course were patrolled by city police. City of Cincinnati v. Faig, (Ohio Mun.Ct.) 145 N.E.2d 563.

Of course “a state taxing statute which discriminates against interstate commerce is invalid” (annotation 117 A.L.R. 444), for example, as in the annotated case, Adams Mfg. Co. v. Storen, 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365, an Indiana gross income tax when applied to the gross receipts of a corporation which, although its factory and principal place of business was within the state, sells most of its products to customers in other states was an unconstitutional burden on interstate commerce. On the other hand, in the same year, 1938, New Mexico levied a 2% tax on the gross receipts from the sale of advertising but, since “all the events upon which the tax is conditioned * * * occur in New Mexico and not elsewhere, it was held that the tax was not an unconstitutional infringement upon interstate commerce. Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S. Ct. 546, 82 L.Ed. 823. But the appellant in this case is an individual, a person, and is not concerned with that part of either the ordinance or the statute which taxes the “net profits of associations” and “the net profits earned by all corporations.” 7 V.A. M.S.Supp., Sec. 92.110.

The only assault on the tax here is that it “duplicates many of the taxes levied by the State of Illinois and its political subdivisions, as for example, sales taxes and franchise taxes.” It is said that “the entire gross income of plaintiffs is taxed without allowance for the necessary expenses of interstate movement” and therefore “in effect then becomes a privilege tax for entering the city to seek a livelihood.” In the first place, it has become established that “nonresident individuals may be subjected to a state tax on income earned within the state.” Annotations 156 A.L.R. 1370, 1373, 90 A.L.R. 484, 15 A.L.R. 1326; Atkinson v. State Tax Comm., 303 U.S. 20, 58 S.Ct. 419, 82 L.Ed. 621. In the second place, the St. Louis earnings tax “is not a tax imposed for the privilege of the taxpayer to engage in or practice the particular business or profession” and neither, it might be added, is it a tax upon the privilege of entering and working in the city, and it is not a property tax. Lawyers’ Association of St. Louis v. City of St. Louis (Mo.App.), 294 S.W.2d 676; Youngstown Sheet & Tube Co. v. City of Youngstown, 91 Ohio App. 431, 108 N.E.2d 571. And upon this record “all the events upon which the tax is conditioned” occur in Missouri. In its final analysis the only distinguishing factor in this case is the fact that the plaintiff and those similarly situated are residents of Illinois and no doubt pay certain taxes to the State of Illinois and its political subdivisions, but the mere incidence of these factors does not demonstrate that the earnings tax is therefore an undue or improper burden on interstate commerce.

In short, upon this record the St Louis earnings tax is not unconstitutional and invalid as to these parties for the reasons here urged, accordingly the judgment is affirmed.

PER CURIAM.

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

All of the Judges concur.


text:
    Fred HARVEY, a corporation, Respondent, v. H. Sam PRIEST, Russell L. Dearmont, Alphonse G. Eberle, Kenneth Teasdale and Raymond R. Tucker, as Members of the Board of Police Commissioners for the City of St. Louis, Missouri, and Curtis Brostron, Chief of Police, City of St. Louis, Missouri, Appellants, and Thomas F. Eagleton, Attorney General of the State of Missouri, Intervenor-Appellant.
    No. 49576.
    Supreme Court of Missouri, En Banc.
    March 11, 1963.

      Gerald K. Presberg, St. Louis, for defendants-appellants.
    Arthur R. Tucker, Henry F. Luepke, Jr., St. Louis, Carter, Bull & Baer, St. Louis, Lewis, Rice, Tucker, Allen & Chubb, St. Louis, special counsel to intervenor-appel-lant.
    Coburn, Croft & Cook, Thomas L. Croft, Gerald M. Smith, Ben Ely, Jr., St. Louis, for plaintiff-respondent.
   LEEDY, Judge.

Fred Harvey, corporate concessionaire at Union Station, St. Louis, obtained declaratory relief by the judgment in this case, and from that judgment the members of the Board of Police Commissioners of the City of St. Louis, the Chief of Police of that city (defendants) and the Attorney General of Missouri (intervenor) have appealed.

The case is another of those following in the wake of, and which were given impetus by, this court’s en banc decision of December 11, 1961, in State v. Katz Drug Company (Mo.) 352 S.W.2d 678, upholding the constitutionality of the exposure-to-sale and Sunday closing sections of our so-called “blue laws,” §§ 563.720, 563.730 (statutory references are to RSMo and V.A.M. S., unless otherwise noted). These sections read as follows:

“§ 563.720. Every person who shall expose to sale any goods, wares or merchandise, or shall keep open any ale or porter house, grocery or tippling shop, or shall sell or retail any fermented or distilled liquor on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor and fined not exceeding fifty dollars.
“§ 563.730. Section 563.720 shall not be construed to prevent the sale of any drugs or medicines, provisions or other articles of immediate necessity.”

The Katz case held these sections were not rendered unconstitutional or void for vagueness and uncertainty by reason of excepting sales of “drugs, medicines, provisions or other articles of immediate necessity,” nor as being violative of constitutional provisions respectively calling for separation of legislative and judicial powers, and giving an accused the right to demand the nature and cause of accusation. That case did not involve (nor does the one at bar) any challenge of these sections on the ground that they conflict with constitutional provisions for religious liberty. In sustaining the validity of these sections, the Katz case ruled that the standard “other articles of immediate necessity” within the exception above mentioned must be of necessity to people generally rather than to the individual making the purchase on a particular occasion. And in that connection it was further said: “ * * * [S]ince travel on Sunday has never been prohibited (see exemption of ferrymen in Sec. S63.700), supplies immediately needed to keep modern traffic moving in motor vehicles or planes surely would now be ‘articles of immediate necessity/ as would supplies immediately needed to carry on any ‘works of necessity.’ ”

In an obvious effort to conform the instant judgment to the foregoing view of the law by an adaptation of the language with respect to keeping “modern traffic moving in motor vehicles or planes,” said judgment, in paragraph “1”, adjudges, declares and decrees:

“1. That the items set forth and contained in Exhibit A1 and items of similar nature are hereby declared to be drugs, medicines, provisions, and articles of immediate necessity for the traveling public and railroad employees within the meaning of Section 563.730 Revised Statutes of Missouri, 1959, and are further declared to be supplies immediately necessary to keep modern traffic in trains moving, and the sale of such items and their exposure for sale to travelers and railroad employees within the confines of the Union Station in St. Louis, Missouri, on Sunday is not in violation of the provisions of Section 563.-720, Revised Statutes of Missouri, 1959.” (Italics ours.)

“EXHIBIT A

“LIST OF ITEMS WHICH ARE HEREBY DECLARED TO BE DRUGS, MEDICINES, PROVISIONS AND ARTICLES OF IMMEDIATE NECESSITY AND MAY BE SOLD AND EXPOSED FOR SALE TO THE TRAVELING PUBLIC AND RAILROAD EMPLOYEES USING THE UNION STATION IN ST. LOUIS, MISSOURI ON SUNDAYS AND THE SALE OF WHICH IS HEREBY DECLARED NOT TO BE VIOLATIVE OF SECTION 663.720, REVISED STATUTES OF MISSOURI, 1959

Toothpaste Books

Toothbrushes Children’s Toys

Razor Blades Sun Glasses

Shaving Lotion Glasses Cases

Cosmetics and items incidental thereto Rosaries St. Christopher Medals

Drugs Crosses

Film, flashbulbs Key Cases

Shoe Laces Travel Bags

Combs Alarm and Travel Clocks

Sanitary Napkins Watches

Deodorant Slippers, Travelers

Fountain Pens Women’s earrings, bracelets, necklaces, pins

Stationery Purses

Shirts Stockings

Ties Gloves and scarfs

Socks Underwear Tobacco products and items necessarily incidental thereto

Belts Chewing Gum

Cuff Links Candy

Tie Pins Pocket Knives

Wallets Shoehorns

Diapers Nail clippers

Baby Bottles Handkerchiefs

Baby Drugs and Supplies Rain Apparel

Magazines Luggage Tags

Newspapers City Directional Maps

Travel Mementos, Souvenirs Towels and washcloths

Novelties including but Razors

not limited to decorative Pencils

pottery and glassware Flashlight and radio batteries”

The judgment also requires that plaintiff post appropriate signs in and about its establishment in Union Station “setting forth and indicating that the sale of merchandise set forth in Exhibit A on Sunday is limited to the traveling public and railroad personnel utilizing the facilities of said Union Station.” It is further required that plaintiff “use and exercise reasonable care in the sale or exposure for sale of the items set forth in Exhibit A on Sunday insofar as practicable to the traveling public and railroad employees utilizing the facilities of the Union Station * *

The judgment contains other declarations and provisions, but for our purposes, in the view we take of the case, they need not be noticed.

Appellant’s first contention is that the articles enumerated in Exhibit A “and items of similar nature” are not exempt from the proscription of § 563.720 as articles of immediate necessity to the traveling public and railroad employees, and are not supplies necessary to keep modern traffic in trains moving; respondent contends to the contrary. It may be said that, in general, both sides cite and rely on the same cases to support their respective, albeit diametrically opposed, positions. This is but typical of the vexing state of uncertainty and widespread confusion which for many years attended (and since Katz has aggravated) operations under, and enforcement of, these sections — a situation so notorious as to be the subject of judicial notice.

In this state of affairs we shall examine sua sponte so much of the question presented in Katz as relates to the claim of invalidity of these sections (both under common law rules and under constitutional provisions there invoked) because of vagueness and indefiniteness, in that they fix no ascertainable standard by which guilt may be determined, and furnish no adequate guide to future conduct or the adjudication of past action, or whether or not an article falls within the classification of “provisions or other articles of immediate necessity.”

Some of the provisions of § 563.720 are couched in the language of the pioneer, backwoods era during which the section was originally enacted (See R.S.1825, p. 311, Sec. 92, and R.S.1835, p. 209), notably the clause inhibiting the keeping open on Sunday of “any ale or porter house, grocery or tippling shop.” As to the word “grocery,” what modern child or other person would understand that term to mean anything other than a retail store or establishment at which foodstuffs, general supplies for the table, and household commodities are sold? But obviously the word was not so used in the statute, but rather in its meaning (now archaic) as a barroom or drinking shop. Webster’s 2nd International Dictionary gives as one of the definitions of grocery: “4. A barroom, hence, liquor. Southern U.S.” And in 4 Century Dictionary and Cyclopedia 2631: “5. A drinking shop.” And, by way of elaboration, “Every house in Sante Fe was a grocery * * * continually disgorging reeling, drunken men. Ruxton, Mexico and Rocky Mountains, p. 190.” Perhaps, too, today’s alcoholic, when in quest of the nearest barroom, tavern, cocktail lounge, etc., would be perplexed and bewildered if directed to try “any ale or porter house, grocery or tippling shop.” But notwithstanding such archaic phraseology, the meaning of those terms as understood at the time the statute was enacted is ascertainable, and, being known, is perfectly clear, so that this section, if standing alone, would present no problem of interpretation. Indeed, its command would be regarded as unambiguous, direct and unmistakable, but its resultant force and effect would be a tight and unyielding clamp upon selling or exposure to sale of all goods, wares and merchandise on Sunday. But, as we have seen, the section does not stand alone, but is followed by § 563.730 which purports to remove from the proscriptions of § 563.720 and exempt therefrom “the sale of any drugs or medicines, provisions or other articles of immediate necessity.”

In ruling Katz, the really troublesome question was found (and so declared) to be that of the meaning to he given to the words “other articles of immediate necessity” as there used. We are satisfied with our ruling that “provisions” as used in § 563.730 means “food and provender for men and beasts,” including “meats and groceries.” But the construction we placed on “or other articles of immediate necessity” returns to haunt and mock, and will continue so to do, as the instant judgment demonstrates. In the first place, in construing the clause to mean necessity to the people generally rather than to the individual making the purchase on a particular occasion, we failed to take into account or notice that our courts of appeals had many years ago placed a contrary construction upon the language in question. State v. Ohmer, 34 Mo.App. 115; State v. Hogan, 212 Mo.App. 473, 252 S.W. 90. As said in State v. Ohmer (34 Mo.App. pp. 124-125): “* * * [N]or was it the intention of the legislature that this law [§ 1582 R.S.1879, now § 563.730] should apply to and prohibit the sale of articles of food or other necessary articles, when the necessity for same zvas urgent and immediate. And we think that the ‘necessity,’ spoken of, must be of such a character that it could not reasonably have been foreseen or guarded against. To hold otherwise would result in the general sale of all kinds of food and any other articles of necessity on the Sabbath.” The foregoing language was quoted approvingly by the Springfield Court of Appeals in affirming the conviction in the Hogan case, supra, where the accused was charged with having kept open his grocery store on Sunday, and exposed, and offered goods, wares and merchandise for sale, the court saying, “Defendant in effect admitted that he exposed for sale his entire stock. He sold to those who desired to hwy zmthout regard to the qiiestion of immediate necessity. His demurrer was properly overruled.” (All emphasis ours.) Of course, this court would not be bound by these pronouncements, but the fact they were made (and there has been no amendment in the statute in the meantime) is symptomatic of the problem posed by the indefinite meaning of “articles of immediate necessity.”

If the trial court’s judgment is correct, then by the same token the highway traveler on Sunday is entitled to similar treatment by stores, shops, and other miscellaneous establishments along his route in furtherance of the need to “keep modern traffic moving in motor vehicles,” and so on through various categories ad infinitum.

In the light of the history and background of these sections, and taking judicial notice of the matters hereinabove mentioned, upon what we deem to be an objective reappraisal of our views as formerly expressed, we have concluded, and accordingly hold that the presence of the phrase “or other articles of immediate necessity” renders the statutory scheme of Sunday closing (as embodied within the two sections here under scrutiny) so vague and indefinite that it cannot be ascertained with any reasonable degree of certainty what sales are permitted, and what sales are interdicted, thus making the statute incapable of rational enforcement, and hence void.

We do not reach the merits of the questions sought to be presented on this appeal because the statute on which the action is based is now held void, and from this it follows that the decree interpreting ■ that statute and declaring rights thereunder must of necessity fall with the adjudication of invalidity of the underlying statute. The judgment is, therefore, reversed.

All concur except DALTON and HYDE, JJ., who concur in result.