author: HENLEY, Judge.

text:
    STATE of Missouri, Respondent, v. George Lawrence WATSON, Appellant.
    No. 49971.
    Supreme Court of Missouri, Division No. 1.
    Dec. 14, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 11, 1965.

      Thomas F. Eagleton, Atty. Gen., Jeremiah D. Finnegan, Asst. Atty. Gen., Jefferson City, for respondent.
    David A. Yarger, Versailles, for appellant.
   HENLEY, Judge.

Defendant was convicted of possession of burglar’s tools (Section 560.115 RSMo 1959, V.A.M.S.) and sentenced to imprisonment in the Penitentiary for a term of five years. He appeals that sentence and judgment as a poor person, the transcript on appeal being furnished him at the cost of the public. He was represented by counsel at both the trial and appellate levels. Trial counsel filed a timely motion- for new trial containing eleven assignments of error and thereafter defendant, pro se, stating that he had released his trial attorney, filed an amended motion containing four additional assignments of error. Defendant’s brief and supplemental brief as well as his appellate counsel’s reply brief rely on twenty-six points some of which, as we shall see, are directed to issues presented to and ruled upon by the trial court and some are not, and many are, in part, duplications of others.

Prior to trial day the defendant filed a motion to suppress the use in evidence of certain articles described in the information seized by police as a result of an alleged unlawful search. Out of the hearing of the jury this motion was submitted to the Court, evidence heard thereon, and overruled immediately before the trial of the case on the merits. The evidence presented on this motion was substantially the same as that produced at the trial and would warrant a finding of the following facts.

On the morning of February 7, 1962, Detective Phil Ratcliff of the Kansas City, Missouri police department was “staked out” across the street from and had under surveillance a basement apartment at 3439 Charlotte occupied by Larry Dean Foster and wife. The police had a warrant for the arrest of defendant on a charge of burglary and apparently had good reason to believe that defendant would appear at the Foster apartment for, later that morning, a black 1955 model Plymouth automobile being driven by defendant accompanied by Raymond Booth pulled up to the curb and stopped directly in front of the apartment. Detective Ratcliff watched the defendant and Booth leave the automobile and enter the apartment building and then summoned Lt. Mark Ruckel in charge of the burglary unit. Within a few minutes Lt. Ruckel, Detective Billy Witcig and another officer arrived on the scene and Detective Ratcliff briefed these officers on what had transpired. Entering the building the officers were admitted to the Foster apartment by Larry Foster and after a search they found defendant hiding in a closet of the rear bedroom. Defendant was arrested, his person searched, and within a few minutes the Plymouth automobile was searched by Detectives Ratcliff and Witcig. When the police requested the keys to the Plymouth, the defendant stated he did not have the keys, denied owning the automobile, denied knowing anything about the automobile, and, denying that he had driven the automobile to the apartment, he stated that he had walked there. Through the automobile windows Detectives Ratcliff and Witcig saw certain of the tools described in the information on the floor and in the back seat of the automobile and on a ledge above the back seat. These tools, with a pistol in a glove found under the front seat, were removed from the automobile and with the keys found in the ignition switch the car trunk was unlocked and searched resulting in the seizure and removal of more similar tools. After this search and seizure was completed, the automobile was towed by the police to a garage. The evidence is not clear as to which of the tools seized were those seen by the officers through the car windows and which were those removed from the locked trunk. As the search of the automobile was being completed, Lt. Ruckel and other officers with defendant in custody left the apartment building enroute to police headquarters.

Ownership of the automobile and the tools in it was claimed by the defendant’s sister and her husband, but defendant negotiated the automobile’s purchase and paid for it.

The defendant admits that his arrest pursuant to the warrant was lawful, but contends that the search of the automobile and the seizure of this evidence was illegal and in violation of his constitutional rights, and that, therefore, the Court erred in overruling his motion to suppress the evidence. He also contends that the Court erred in failing to exclude from the evidence the tools later offered and admitted in evidence over his objection. In support of his contentions defendant cites Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed. 2d 777; State v. Edmondson, Mo., 379 S.W.2d 486; and State v. Hunt, Mo., 280 S.W.2d 37. In Preston the petitioner and two others occupying an automobile which had been parked in a business district for approximately five hours were arrested at about 3 a. m. on a charge of vagrancy, their persons searched for weapons, and taken to police headquarters. The automobile was not searched at the time of the arrest but was taken in charge by an officer and driven by him to the police station and thereafter towed to a garage. After the three men were booked at the police station, the police made two trips to the garage and on the first trip found two loaded revolvers in the glove compartment. On the second trip, they searched the automobile trunk by entering the trunk through the back seat and seized a stocking with holes for mouth and eyes and other items which presumably would be useful in performing a robbery. Later one of petitioner’s companions confessed that he and two others (not naming petitioner) intended to rob a bank in a nearby town. Against the Government’s contention that this search and seizure was justified as incidental to a lawful arrest, the Court held that the search was too remote in time or place to have been made as incidental to the arrest, and that the search of the automobile without a warrant failed to meet the test of reasonableness under the Fourth Amendment rendering the evidence obtained inadmissible. In Edmondson the defendant was arrested at a motel in Albuquerque, New Mexico, for an alleged felony committed in Missouri. Defendant’s automobile was parked on a public parking lot about 10 feet from the front door of his room. After he was arrested and taken in custody the police took charge of the automobile and drove it to the police department garage where it was searched by the police without a search warrant some three or four hours later. A piece of paper found under the driver’s seat was identified as an article taken in the Missouri robbery and was admitted in evidence over the defendant’s objection that this search and seizure violated his Federal and State constitutional rights. In Ed-mondson, as in Preston, the search of the automobile was too remote in time and in place to have been made as incidental to the arrest. This Court there held that the search violated the Fourth Amendment to the Federal Constitution and that the piece of paper obtained as a result of the search was inadmissible. In Hunt, supra, the trial court sustained a motion to quash a search warrant and suppress evidence obtained by unlawful search, but admitted testimony pertaining to the articles unlawfully seized. Following the Federal rule excluding evidence obtained as a result of an illegal search including oral testimony of facts gathered during an unlawful search, adopted by this court in State v. Owens, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383, this Court held that the testimony pertaining to the articles was inadmissible and reversed and remanded the case. Obviously the Hunt case is not applicable and does not support defendant’s point.

The facts in this case and those in Preston and Edmondson, supra, are also obviously different and the rule applied in those cases is not applicable here. Here the automobile was parked at the curb directly in front of the Foster apartment, where defendant had been seen to leave it only a few minutes before. Immediately after defendant’s arrest it was searched and articles seized at this spot before defendant was taken to police headquarters and later it was towed to a garage. Had the officers not searched the automobile and removed therefrom the items mentioned in evidence as burglar’s tools there would have been nothing- to prevent others (who could and later did claim ownership of the automobile and tools) from removing the same and destroying the evidence seized by the officers. In Preston the court again stated the rule that when a person is lawfully arrested the police have a right to make a contemporaneous search of his person, of things under his immediate control, and, depending upon the circumstances, of the-place where he is arrested. The court repeated that the rule “allowing contemporaneous searches is justified, * * * by the need to seize weapons and other things: which might be used to assault an officer oi" effect an escape, as well as by the need to-prevent the destruction of evidence of the-crime”, but held that “ * * * these-justifications are absent where a search is-, remote in time or place from the arrest.”' In this case the search of the trunk of the-Plymouth was immediate in point of time and place and was contemporaneous with and incidental to what was admittedly a lawful arrest. State v. Edwards, Mo., 317' S.W.2d 441, 445 [2, 3],

Also, the officers had only to look and see and did, without a search, look, through the automobile windows and see,, lying in plain view on the floor, the back seat and a ledge above the back seat many of the items described as burglar’s tools, likely to connect defendant with the commission of the crime of burglary for which-, he was arrested. The lawful arrest of defendant on a charge of burglary, and the discovery of what could be used as burglar’s tools in plain view inside the automobile which defendant had been seen to drive up in a short time before, led to the search of the locked trunk and the seizure therefrom of more like tools, and this search and seizure without a search warrant were not unreasonable under these circumstances but, instead, were based upon probable cause as an incident to a lawful arrest. State v. Camper, Mo., 353 S.W.2d 676; State v. Cantrell, Mo., 310 S.W.2d 866; Commonwealth v. Katz (1964), 202 Pa.Super. 629,, 198 A.2d 883.

Defendant disclaimed ownership of the automobile or any interest in it. He even denied any knowledge of the automobile or its presence at the curb and denied driving it there by stating that he had walked to the Foster apartment. Having disclaimed any interest in the automobile searched, he cannot now, for this additional reason, be heard to question the legality of the search or the resultant seizure. Nor can his disclaimer once made be recalled at his pleasure. State v. Cantrell, supra; 79 C J.S. Searches and Seizures § 60, page 816; State v. Pigg, 312 Mo. 212, 278 S.W. 1030, 1033 [4], The motion to suppress was properly overruled and the Court did not err in admitting into evidence State’s Exhibit No. 1 (the tools) over defendant’s objection.

Defendant attacks the information as insufficient in that it fails to state as an essential element of the charge of possession of burglar’s tools “intent” that the tools be used for burglarious purposes. The information follows the form of the statute (Section 560.115) and this is generally deemed sufficient to charge an offense. State v. Anderson, Mo., 232 S.W.2d 909 and cases there cited. In State v. Crouch, Mo., 353 S.W.2d 597, an information not unlike the information here was under attack by a motion to quash treated as a motion to dismiss. The trial court sustained the motion, quashed the information and discharged the defendants. On an appeal from that order by the State (Supreme Court Rule 28.04, V.A.M.R.) this Court held that the information was sufficient to charge the offense of possession of burglar’s tools and reversed and remanded the case for trial. The information here is sufficient.

As to assignments of error numbered three and four in his motion for new trial the defendant says that the Court erred in not discharging the jury on his motion after the Court had sustained his objections to opening statement remarks of the prosecuting attorney that: (1) the defendant “is known as a thief”, and (2) certain named persons present when defendant was arrested “are known burglars and known thieves.” The State contends that the defendant did not move for a mistrial and discharge of the jury for the stated reasons,' but a close examination of the transcript will disclose that the State is mistaken. An examination of the transcript will also disclose that when these remarks were made by the prosecutor he was relating to the jury that which he expected to prove as a part of the State’s case. Counsel for the State has a duty to inform-the jury and the defendant in his opening' statement what he expects the evidence to-be produced by the State will properly show. These statements of his conclusions of what the State expected its evidence to show did not go without proof for the State’s evidence was that the defendant had been previously convicted of bank robbery and that his reputation in the police department and with-police officers was that of a burglar and that he had a previous record for stealing. Also, there was evidence that Raymond Booth, who accompanied defendant to the apartment of Larry Foster, and Foster had previous convictions for stealing and had reputations as being thieves and" burglars. These conclusions drawn by the Prosecuting Attorney in his opening statement were not so improper under the circumstances as to dictate a conclusion by us-that the trial court committed error prejudicial to the defendant when the Court, within its discretion, overruled the motion: for a mistrial. State v. Nasello, 325 Mo. 442, 30 S.W.2d 132, 141.

Defendant also assigns as error the admission in evidence of: (1) records of the convictions of Raymond Booth and Larry Foster, (2) record of the prior conviction of defendant in Federal Court of Bank Robbery, being State’s Exhibit 3, and (3) testimony of a police officer that defendant’s reputation in the police department was that of a burglar. Defendant argues that it was error for the Court to admit in evidence over his objection court records of prior convictions of Larry Foster for stealing and for burglary, second degree, and stealing, and of Raymond Booth, for stealing, for the reasons that “evidence of [their] prior convictions is not competent to prove their reputations nor to prove their association with appellant.” At the time these records of conviction were read into evidence, defendant’s objections were, in substance, that the records do not tend to prove association [of defendant with Foster and Booth], that the convictions of Foster and Booth are too remote [being in 1957 and 1959] and would not be competent or relevant to prove intent as an element of the charge of possession of burglar’s tools. The objection for the reason that these convictions were not competent to prove the reputations of Foster and Booth is presented for the first time in the motion for new trial and is not preserved for appellate review because not presented to the trial court at the time of the objection to the evidence. State v. Brown, Mo., 360 S.W.2d 618 [8], It will be noted that defendant’s complaint is that these convictions were not competent to prove the reputations of Foster and Booth; not that this evidence constituted an attack upon defendant’s character or reputation. In State v. HefHin, 338 Mo. 236, 89 S.W.2d 938, 103 A.L.R. 1301, a leading Missouri case on the possession of burglar’s tools, we held that possession must be had “with the general intent that they shall be used for a burglarious purpose” and cited cases with approval holding that the State may show to prove bur-glarious intent that defendant associates with burglars and is himself a burglar and thief. See also: State v. Medley, 360 Mo. 1032, 232 S.W.2d 519; State v. Lorts, Mo., 269 S.W.2d 88; People v. Jefferson, 161 Mich. 621, 126 N.W. 829; People v. Howard, 73 Mich. 10, 40 N.W. 789; Brown v. State, 22 Ohio Cir. Dec. 93; 20 Am.Jur. 289, sections 310, 313. The evidence of the convictions of Foster [in whose apartment defendant was found hiding in a closet] and of Booth [who accompanied defendant in the automobile containing the tools to the Foster apartment] is relevant as throwing light on defendant’s intent in possessing the tools. It was admissible on this constitutive element of the offense charged and the fact that this evidence might also tend to discredit the character or affect the reputation of Foster and Booth or that it might also tend to discredit defendant’s character or affect his reputation would not be a valid ground for excluding the evidence. State v. Knight, 356 Mo. 1233, 206 S.W.2d 330, 333. Nor is there any merit in defendant’s contention that the convictions of Foster and Booth are too remote in point of time from the offense for which defendant was convicted. The remoteness of such evidence goes to its weight and not to its admissibility and the question of excluding evidence because of its remoteness lies largely in the sound discretion of the trial judge. 22A C.J.S. Criminal Law § 683, page 744; State v. White, 339 Mo. 1019, 99 S.W.2d 72, 74. The trial court did not abuse its discretion in the admission into evidence of these convictions. Evidence of the prior conviction of defendant of Bank Robbery and testimony of a police officer that defendant’s reputation in the police department was that of a burglar was admissible, for the reasons already stated, on the element of intent, and these assignments are ruled against defendant. State v. Hefflin, supra; State v. Lorts, supra.

Defendant next assigns as error the admission in evidence of: (1) State’s Exhibit No. 2, being two sheets of paper bearing a latent fingerprint of defendant and certain longhand memoranda, (2) testimony of a police officer identifying this latent fingerprint on State’s Exhibit No. 2, and (3) State’s Exhibit No. 6, being a photograph of this latent fingerprint. The two sheets of paper identified as State’s Exhibit No. 2, bearing a latent fingerprint of defendant, were found in a box along with tools in the automobile trunk. Exhibit No. 2 was first offered during the testimony of Detective Ratcliff and on objection by the defendant that “no foundation was laid, there’s no proof it is in the defendant’s writing or connected to him” the Court sustained the objection. Later, during the testimony of Officer Mettenburg, Exhibit No. 2 was admitted in evidence over defendant’s objection “to that portion [of the two sheets of paper] from which no print was taken.” No reason was assigned for the objection at the time it was overruled by the Court. In his motion for a new trial and in his brief the defendant contends the handwriting on the sheets of paper was not established to be that of defendant and, therefore, “lacked proper foundation to connect the paper to defendant”; that the State failed to show that the defendant did not handle these papers between the date of his arrest and trial date and at such time put his fingerprint thereon; and, for these reasons these papers should not have been admitted in evidence. Defendant also contends that these two sheets of paper were unlawfully seized from the automobile trunk as a result of the alleged illegal search and for that additional reason should not have been received in evidence. What we have said above with reference to the latter contention answers without more this facet of this assignment. The other reasons now assigned in his motion for a new trial, and briefed, not having been presented to the trial court at the time of his objection to the offer of Exhibit No. 2 are not preserved for appellate review. State v. Brown, Mo., 360 S.W.2d 618 [8]. Defendant’s objections to the testimony of the police officer who identified the latent fingerprint on one of the two sheets of paper comprising State’s Exhibit No. 2 appears to be that the officer was not qualified to testify as an expert. In answer to these objections it is sufficient to say that the evidence shows that the police officer was properly qualified to testify as a fingerprint expert; furthermore, there was no proper objection at the trial to the officer’s qualifications. By his repeated objection that there was no evidence that defendant did not place his fingerprint on one of the sheets of paper between the date of his arrest and trial date, defendant seems to be saying that the State had not properly established the chain of custody of these papers. Nowhere does he contend affirmatively that he did make this fingerprint during this period, nor is there evidence even remotely supporting such a contention. The State is not required to show or account for the hand to hand custody of these papers during the intervening time between his arrest and trial date. State v. Burney, 346 Mo. 859, 143 S.W.2d 273, 276-277. Nor was the State required to show, under the circumstances, that the memoranda on these papers was in the handwriting of the defendant. State v. Soper, 148 Mo. 217, 49 S.W. 1007. The memoranda on the papers further tend to prove the essential element of the intent with which defendant possessed the tools, and was admissible for that reason. State v. Lorts, supra; People v. Miller, 134 Cal. App.2d 792, 286 P.2d 415. Officer Mettenburg, at whose direction the photograph of defendant’s latent fingerprint identified as State’s Exhibit No. 6 was taken, properly identified and adequately qualified Exhibit No. 6 as an accurate reproduction of defendant’s fingerprint and the Court did not err in admitting this exhibit into evidence. State v. Duncan, Mo., 316 S.W.2d 613, 619. The assignments of error in admitting State’s Exhibits Nos. 2 and 6 and the admission of the testimony of Officer Metten-burg are ruled adversely to defendant.

Defendant next assigns as error the failure of the Court to sustain his motions for judgment of acquittal filed at the close of the State’s case and filed at the close of the whole case. Defendant offered evidence in his defense and thereby waived the motion filed at the close of the State’s case. State v. Brown, Mo., 360 S.W.2d 618; State v. Hutchin, Mo., 353 S.W.2d 701, 702 [2], As to his contention that the Court erred in denying his motion for judgment of acquittal at the close of the whole case, he preserves for review and argues, only that the State failed to prove beyond a reasonable doubt that defendant was the owner of the tools seized or that he was in possession of them. The State is not required to prove ownership of the tools by defendant; it is sufficient that the State prove possession only for the statute prohibits merely the custody or possession of burglar’s tools. Section 560.115 RSMo 1959, V.A.M.S. The evidence was sufficient on the question of possession or custody of the tools by defendant to permit the case to be submitted to the jury and the Court did not err in overruling defendant’s motion for judgment of acquittal filed at the close of the whole case.

Defendant next assigns as error that the Court forced defendant to accept defense counsel appointed by the Court over the objection of both defendant and counsel. What defendant appears to be trying to say is that his court-appointed trial counsel was unfaithful to his cause. The record is absolutely barren of the slightest indication that this charge of error has any basis in fact and the assignment is ruled against defendant. State v. Livers, Mo., 340 S.W.2d 21, 25 [4], The transcript of the trial proceedings shows that defendant was ably represented by competent counsel.

Defendant next assigns as error that “the Court erred in admitting into evidence the prosecuting attorney’s description of a tire tool as a Jimmie Bar, also erred in information and Instruction No. 2 to the jury by naming said tire tool as Jimmie Bar.” No objection to the use of this description was made at the trial and this broad general point raised for the first time in defendant’s motion for new trial preserves nothing for review. State v. Leonard, Mo., 182 S.W.2d 548 [2, 3]. Too, a jimmy is one of the tools specifically mentioned and banned by Section 560.115, and the tools described as tire tools by defendant are for all practical purposes the same as a jimmy, and may be possessed with an intent that constitutes them burglar’s tools. State v. Crouch, supra, 353 S.W.2d 1. c. 601.

In his motion for new trial defendant raises the point that the Court erred “in accordance with a piece of paper, so called scare sheet, introduced * * * without defendant’s knowledge * * *, [and] subsequently this defendant was not able to call Raymond Booth on behalf of the defense.” Defendant’s pro se brief identifies this “scare sheet”, so 'called, as State’s Exhibit No. 2 with which we treated hereinabove. Defendant appears to be saying in connection with this contention that he was surprised by the introduction of this evidence and that because of surprise he was' unable to secure the attendance of this witness at the trial who would allegedly testify that this exhibit was the property of the witness. No objection was made at the trial to the exhibit on the ground or claim of surprise; nor did he contend then that he was deprived of the testimony of the said Booth because of surprise. Nor does he specify in this assignment wherein the Court may have otherwise erred. The assignment preserves nothing .for review and is ruled against defendant. State v. Williams, Mo., 323 S.W.2d 811.

In the words of his motion for new trial, the defendant in his last assignment of error, says: “The Court erred in that after deliberating two hours were locked as 6 said the defendant was Not Guilty. Poling the jury #9 said they could not reach a verdict. Judge Buzard made the following statement ‘That it cost money to conduct a trial, you are as qualified as any 12 people, it is your duty to bring back a verdict’. Said ‘go back to the jury room.’ ” The above assignment is typical of the vagueness of many of the points he makes in his pro se brief and, like many others, is not altogether supported by the record. The record does disclose that sometime after the jury had retired to the jury room to deliberate they were returned to the jury box and a discourse was carried on between the Court and some of the jurors in which a part of the jurors said that it was their opinion the jury would not be able to agree on a verdict and others were of the opposite opinion. No objection was made to this discourse by defendant and we fail to find therein where the Court said or did anything that would be error prejudicial to defendant. At this point the Court gave the jury Instruction No. 7 — A. No objection to the instruction was made by the defendant at the time or later in his motion for new trial. This instruction is the same as that given and approved in State v. Roberts, Mo., 272 S.W.2d 190, 192 in a similar situation. Defendant argues in his brief that this instruction indicated to the jury that the trial court “wanted a guilty verdict” and “made the jury feel guilty themselves.” The instruction is not subject to the construction given it by defendant; the instruction was properly given, and the point is ruled against defendant.

The other assignments made by defendant are not properly preserved in the motion for new trial or have not sufficient merit to call for discussion.

We have examined and found no prejudicial error in those parts of the record which we examine irrespective of the allegations in the motion for new trial.

Finding no reversible error, the judgment and conviction are affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Pauline FERRELL and Janet Marie Ferrell, By Her Next Friend and Natural Guardian, Pauline Ferrell, Plaintiffs-Appellants, v. Warren S. TOPP, Jr., Administrator of the Estate of Jesse Hamby, Jr., Deceased, Defendant-Respondent.
    No. 50366.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Jan. 11, 1965.
    John D. Hux, Sikeston, and James E. Reeves, Caruthersville, for appellants.

      Marshall, Craig & Littmann, Robert M. Craig, St. Louis, and Powell, Jones & Ringer, Marvin E. Jones, Dexter, for respondent
   HENRY J. WESTHUES, Special Commissioner.

This is an action to recover damages in the sum of $143,000 for wrongful death alleged to have been the result of willful and wanton misconduct. Plaintiffs are Pauline Ferrell and Janet Marie Ferrell, wife and daughter of Rudy D. Ferrell, deceased. The defendant is Warren S. Topp, Jr., administrator of the estate of Jesse Hamby, Jr., deceased.

Rudy D. Ferrell and Jesse Hamby, Jr., lost their lives on November 27, 1961, when a plane crashed into Holden Mountain, one of the Boston Mountains of Arkansas, near Harrison. The flight originated at Sikes-ton, Missouri, and the intended destination was Fort Smith, Arkansas. Jesse Hamby, Jr., was a co-owner of the plane and is alleged to have been in control of it when it crashed.

The case was tried on the theory that Ferrell, who had no interest in the plane, was a guest of Hamby; further, that the Guest Statute and the laws of Arkansas governed the case.

A trial in the Circuit Court of Scott County, Missouri, where the parties resided, resulted in a nine-juror verdict for the defendant. Plaintiffs appealed from the judgment entered.

(We shall refer to the parties as plaintiffs and defendant throughout the opinion.)

Plaintiffs brief three points wherein they claim the trial court erred. In substance, they are: First, that the court erred in excluding evidence concerning a statement alleged to have been made by Jesse Hamby, Jr., shortly before the flight to the effect that if the mountains were too high he would “just make a hole in one of them.” Second, that the court erred in giving instruction No. 4, requested by defendant, wherein the words "willful” and "wanton” were defined. Third, that the court unduly limited the closing argument of plaintiffs’ attorney.

In the brief, the defendant says there is no merit in any of the points briefed by plaintiffs and, even if so, they are immaterial for the reason that the evidence was insufficient to support a verdict for plaintiffs. This claim is made for two reasons: First, that the evidence failed to show Jesse Hamby, Jr., was operating the plane at the time of the crash. Second, that the evidence failed to sustain a finding that Hamby was guilty of willful and wanton misconduct.

It is obvious that the contentions of the parties require a full statement of the evidence favorable to the plaintiffs. We shall first dispose of defendant’s argument as to the sufficiency of the evidence with reference to the point that Jesse Hamby, Jr., was operating the plane when it crashed. As to this point, the evidence justifies the following statement of facts. The airplane in question was a Piper Tripacer (PA-22) which had been owned by Jesse Hamby, Jr., and a Mr. Story since September, 1961. On November 27, 1961, Hamby went to the airport at Sikeston where with the help of Albert Pearson, an employee at the airport, he serviced the plane. They examined a map and discussed the air route to Fort Smith, Arkansas, where Hamby intended to go. Hamby filed a flight plan for a visual flight to Fort Smith. The trip began at about 4:30 or 5 :00 p. m. Jesse Hamby, Jr., his son Robert L. Hamby, age 15, who survived the crash and was a witness in this case, and Mr. Ferrell occupied the plane. Jesse Hamby, Jr., was at the controls with Ferrell occupying the other front seat while Robert L. Hamby sat in the back seat. Robert L. Hamby testified that his father checked the plane before the take off and set the altimeter. Jesse Hamby, Jr., had been a pilot with 354 hours flying time. He had a pilot’s certificate permitting him to operate single engine planes. The certificate permitted him to fly under VFR which means Visual Flying Rules. He was not permitted to fly under IFR which means Instrument Flying Rules. Ferrell had a student’s permit and had to his credit “solo time two hours and thirty-five minutes and about 21 hours of dual time.” In the fatal flight, Ferrell occupied a front seat from which position he could operate the plane.

During the flight, Jesse Hamby, Jr., communicated with officials at various Flight Service Stations as to weather conditions. The plane was landed at Flippin, Arkansas, where the parties remained a few minutes. On take off, the three took the same positions in the plane as before. Jesse Hamby, Jr., operated the plane. The crash into Holden Mountain occurred shortly after the plane passed by Harrison, Arkansas. The son, Robert L. Hamby, testified that he went to sleep during the flight. Robert’s evidence as to what occurred shortly before the crash was stated in substance in defendant’s brief, as follows: “He did wake up, however, when they were over Harrison, Arkansas and saw the lights of the town, after which he went back to sleep. Robert Hamby next awoke when the landing lights were turnd on and off, he believed by his father, and at that time he heard Jesse Hamby, Jr., say there was too much fog and he couldn’t see the ground. Just before the crash he saw Jesse Hamby, Jr. push the throttle and pull back on the stick. This occurred after he heard the pants of the aircraft hit something just a moment before the crash.”

Robert L. Hamby had flown with his father a number of times and was acquainted with the instruments at the control board. There is no evidence tending to indicate that Ferrell at any time had anything to do with the operation of the plane. We deem the above statement of facts, taken from the record, ample to justify a finding that Jesse Hamby, Jr., was operating the plane when it crashed.

We now consider the point that the evidence was not sufficient to sustain a finding that the plane was willfully and wantonly operated in disregard of the rights of others. This, indeed, is a close and difficult question. Before reviewing the evidence, as to this point, we should note that we are not dealing with negligence or even gross negligence, but with willful and wanton misconduct. A number of states have Guest Statutes which provide that a guest may not recover damages for personal injuries from his host unless the injuries were the result of willful or wanton misconduct. Arkansas has such a statute. The subject of “Willfulness or Wantonness” is treated at length in 65 C.J.S. Negligence § 9, pp. 374 — 386, where numerous cases from various states are cited.

We shall now state some additional evidence pertaining to the question of willfulness and wantonness. Albert Pearson, an employee at the Sikeston Aviation Service, testified that he helped Jesse Hamby, Jr., service the plane prior to the take off. He was asked about a conversation he had with Hamby and we quote the following from his testimony:

“Q (By Mr. Hux) Will you state that conversation please?
“A Well, we was looking at the map. We was mapping out his route and over around Harrison, Arkansas, and I told him it was a rough country; he would have to be careful.
“Q What did he say, if anything?
“A He said that, Well, it they get too high for me’ — if the mountains was too high he would just knock a hole in one of them.”

This evidence was stricken by the trial court and the jury instructed to disregard it. The ruling was made an assignment of error. We deem the ruling erroneous and shall, later in this opinion, state why we deem it so.

The evidence showed that the mountains on the chosen route by way of Flippin and Harrison to Fort Smith were the highest in that territory. The map disclosed that Holden Mountain was about 2200 feet above sea level and other mountains were as high as 2700 feet. Enroute to Flippin from Sikeston, Jesse Hamby, Jr., obtained information as to weather conditions. He learned that a cloudy and foggy atmosphere was such that the clearance over the mountains was limited. For example, at Holden Mountain, according to information given to Jesse Hamby, Jr., the clearance was only 475 feet.

Lee Ruebush, manager of the Sikeston Airport, was a witness for plaintiffs. This witness was an expert pilot of 22 years’ experience. He was also an instructor in various subjects such as flight, instruments, multiengine, and jet. He testified there were a number of routes that Jesse Hamby, Jr., could have taken from Sikeston to Fort Smith; that the route chosen by Hamby was the most dangerous; further, that the height at which Hamby was flying was dangerous in that territory even by daylight; that a clearance of 475 feet was not a reasonably safe clearance under the weather conditions on that night.

We are of the opinion that whether Jesse Hamby, Jr., was guilty of willful or wanton misconduct was a jury question. It is urged that the evidence failed to show intent. Intent is not always a necessary element to constitute willful or wanton misconduct. The Supreme Court of Arkansas so held in the case of Scott v. Shairrick, 279 S.W.2d 39, 1, c. 42(6), where the court said: “Under many circumstances it is difficult to draw the line between willful negligence and gross negligence. ““To be willfully negligent,’ ” ’ as stated in the Splawn case, [Splawn v. Wright, 198 Ark. 197, 128 S.W.2d 248] supra, ‘ “ ‘one must be conscious of his conduct, and although having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury.’ ” ’ Since the testimony here indicates that appellant was driving at an excessive speed under the existing conditions and since it shows that he barely avoided a wreck on two different occasions just previous to the wreck and that he repeatedly ignored warnings to drive more carefully, we are forced to the conclusion that the trial court properly allowed the jury to decide the degree of appellant’s negligence.” The plaintiff in that case had obtained a judgment under the Arkansas Guest Statute. Note that the court held intent to injure was not necessary to constitute willful misconduct. See also Rhyne v. Thompson, Mo., 284 S.W.2d 553, 1. c. 557(10), and 65 C.J.S. Negligence § 9c(4), p. 383. There are cases where intent to injure is a necessary element. See Rector v. Tobin Construction Co., Mo., 377 S.W.2d 409, 1. c. 413 (4). That was a case in trespass and Rector relied on willful or wanton misconduct. The case is not in point under the facts of the case now before us.

In Steward v. Thomas, 222 Ark. 849, 262 S.W.2d 901, the court held that whether a person’s misconduct was willful or wanton must be determined by the facts and circumstances of each individual case. In the case before us, we may assume that Jesse Hamby, Jr., had no intention of crashing the plane against the mountain or to injure his own son or his friend Ferrell. However, the evidence showed that immediately before the flight was undertaken, Jesse Hamby, Jr., was warned that the route he was selecting was dangerous. In spite of that he chose the most dangerous route at a time when he knew he would be in the dangerous territory after dark; further, he learned that there were clouds and fog making the flight even more dangerous. The evidence was that the clearance between the clouds and the top of the mountains was such as to render it unsafe for airplane traffic. It was further shown that Jesse Ham-by, Jr., was flying at an altitude which was considered dangerous even in the daytime. We are of the opinion that in the circumstances a jury would be justified in finding that the conduct of Jesse Hamby, Jr., was willful, wanton, reckless, and in disregard of consequences. See 65 C.J.S. Negligence § 9c(3), p. 381, and the Arkansas cases cited supra.

We noted above that in our opinion the trial court erred in rejecting the evidence concerning Jesse Hamby, Jr.’s statement to the effect that if the mountains were too high he would make a hole in one of them. Defendant says that the statement was so incredible as to have no probative value. The statement may be considered frivolous in a way but the statement, made in response to a warning that the territory near Harrison was rough, tends to prove that Jesse Hamby, Jr., had notice of the danger before the flight was undertaken. In other words, the statement tends to show that Jesse Hamby, Jr., knowingly chose a dangerous route. The probative value of the evidence was for a jury to determine.

Plaintiffs complained of instruction No. 4, the last paragraph of which reads as follows : “In this connection, you are instructed that the phrase ‘Willfully and wantonly operated’ as used in these instructions means a willful, deliberate or intentional act or failure to perform a known duty affecting the life of said guest with knowledge and appreciation of the fact that danger is likely to result therefrom.”

The record shows that after the jurors retired they returned to the courtroom and informed the trial judge they needed a clarification on the Arkansas law. A juror, after quoting the above-quoted paragraph of instruction No. 4, said to the judge, “The question is whether or not the failure to perform a duty goes with this ‘willful, deliberate, or intentional act,’ or whether that is two different — ” At this point, the judge interrupted and informed the jury, in substance, that the instructions must be read as a whole. The jury returned to the jury room and later returned a verdict for the defendant with nine jurors signing the same.

Plaintiffs say the instruction as written “contained an improper definition of wilful and wanton conduct in that it submitted an intentional conduct,” and that the instruction in repeating the phrase “willful and wanton” three times in the instruction gave undue prominence to that phrase.

It would serve no useful purpose to set forth in full all of instruction No. 4. This is for the reason that the case must be remanded for the error in excluding evidence with reference to the conversation Jesse Hamby, Jr., had with Pearson about the mountains near Harrison. On retrial, the instruction can be shortened and so worded as to avoid making intent an issue in the case.

The claim that the trial court unduly limited the argument of plaintiffs’ attorney need not be considered for the- reason that the situation probably will not occur on retrial.

For reasons herein stated, the judgment for defendant is reversed and the cause remanded for retrial.

PER CURIAM.

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

All of the Judges concur.


author: STOCKARD, Commissioner.

text:
    William A. ANDERSON et al., Plaintiffs-Appellants, St. Louis County, Missouri, Intervenor-Plaintiff-Appellant, v. MOLINE ACRES, a Municipal Corporation, Defendant, Respondent.
    No. 50543.
    Supreme Court of Missouri, Division No. 2.
    Dec. 14, 1964.
    Motion for Rehearing or for Transfer to Court En Banc Denied Jan. 11, 1965.
    Kerth, Thies & Schreiber, By: C. Kenneth Thies, Clayton, for plaintiffs-appellants, Anderson, and another.
    Norman C. Parker, St. Louis County Counselor, Lawrence J. Bannes, Associate County Counselor, Clayton, for intervenor-plaintiff-appellant, St. Louis County.
    Roy W. Bergmann, Clayton, and Val Terschluse, St. Louis, for defendant-respondent, Moline Acres.
   STOCKARD, Commissioner.

This is an appeal by numerous individual plaintiffs and by plaintiff-intervenor St. Louis County from an adverse judgment in their suit against the City of Moline Acres for a declaratory judgment and an injunction. St. Louis County is an appealing party, and for that reason this court has jurisdiction.

Prior to January 3, 1961, what is now the fourth class city of Moline Acres was a village. On July 5, 1955, it enacted an ordinance authorizing proceedings to annex approximately 242 acres of land. On the erroneous theory that Section 71.015 (all statutory references are to RSMo 1959, V. A.M.S.), known as the Sawyers Act, applied to it (see Emerson Electric Manufacturing Company v. City of Ferguson, Mo.App, 376 S.W.2d 643), the Village of Moline Acres filed its petition in the Circuit Court of St. Louis County for the declaratory judgment which is made a condition precedent by the Sawyers Act to the exercise by a city of its authority to annex additional territory. On January 21, 1957, the circuit court entered the requested declaratory judgment. On October 27, 1955, the Village of Moline Acres filed a petition, pursuant to Section 80.030, with the County Council of St. Louis County requesting that the tract of land in question be annexed to the corporate limits of said village. The hearing on this petition was not held until June 12, 1957, after the entry of the declaratory judgment by the circuit court. The petition was taken under ati-visement but was never acted upon, favorably or unfavorably, by the County Council and the area in question was never annexed by the Village of Moline Acres. On January 3, 1961, the Village of Moline Acres changed its status, after a favorable vote of the inhabitants, from a village to a city of the fourth class. Thereafter, the procedure for annexation provided for by Section 80.030, applicable to villages, was inapplicable to the City of Moline Acres. In order to annex the area in question it was necessary that the city comply with the provisions of Section 79.020, applicable to cities of the fourth class, and also that the city comply with Section 71.015, the Sawyers Act.

On May 2, 1961, the City of Moline Acres called an election at which was submitted to the legal voters of said city for approval the proposed annexation of the area in question, and such approval was obtained. On June 5, 1961, plaintiffs, residents of the area, filed the present suit seeking a declaratory judgment that the purported annexation was invalid, and they also sought to enjoin the City of Moline Acres from exercising any jurisdiction over the area. In a stipulation of facts filed in the case, which contained the facts previously set forth, it was agreed that “the principal if not the sole issue for determination * * is whether the declaratory judgment * * rendered in favor of the Village of Moline Acres on January 21,. 1957, is a valid declaratory judgment which will support the subject annexation proceeding by the City of Moline Acres.”

The Sawyers Act requires that after the adoption of a resolution by a city to annex any unincorporated area of land, the city shall, before proceeding with the annexation as otherwise provided by law, file an action in the circuit court and obtain a declaratory judgment wherein it is found and adjudged that such annexation is reasonable and necessary to the proper development of said city, and that the city has the ability to furnish “normal municipal services of said city to said unincorporated area within a reasonable time after said annexation is to become effective.” See Section 71.015, and also City of St. Joseph v. Hankinson, Mo., 312 S.W.2d 4, where this court set forth the part the Sawyers Act plays in the annexation procedure to be followed by cities to which it is applicable.

By the declaratory judgment rendered on January 21, 1957, at the request of the Village of Moline Acres it was adjudged that “Plaintiff [the Village of Moline Acres] has the ability to furnish normal municipal services of said municipality [that is, the normal municipal services of a village] to said unincorporated area within a reasonable time after said proposed annexation would become effective.” The municipal services of a village are not as broad and as encompassing as the municipal services of a fourth class city. Compare Chapter 79, pertaining to cities of the fourth class, and Chapter 80, pertaining to towns and villages. Regardless of whether or not there was a justiciable controversy before the circuit court of St. Louis County subject to judicial determination, see State ex rel. Chilcutt v. Thatch, 359 Mo. 122, 221 S.W.2d 172, there has been no declaratory judgment that the City of Moline Acres has the ability to furnish the normal municipal services of a city of the fourth class to the area proposed to be annexed within a reasonable time after the proposed annexation. It is immaterial that by its judgment of January 21, 1957, the circuit court found that the Village of Moline Acres was able to furnish the normal municipal services of a village.

Compliance with the Sawyers Act requires that the declaratory judgment therein provided for be obtained, McConnell v. City of Kansas City, Mo., 282 S.W.2d 518, and until obtained the City of Moline Acres may not exercise the delegated authority to annex unincorporated territory. We conclude that there has been no such compliance.

The judgment is reversed and the cause remanded for further proceedings according to the views here expressed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: STORCKMAN, Presiding Judge.

text:
    Joe BUNCH, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, Respondent.
    No. 50240.
    Supreme Court of Missouri, Division No. 2.
    Jan. 11, 1965.
    James F. Koester, St. Louis, for plaintiff-appellant.
    . Mark M. Hennelly, Charles P. Lippert, St. Louis, for respondent
   STORCKMAN, Presiding Judge.

This is an action to recover damages in the sum of $100,000 for personal injuries sustained by the plaintiff on January 21, 1960, when the automobile he was driving was struck by the leading coal car of four being pushed by a locomotive at the crossing of the defendant’s tracks and Caronde-let Boulevard in the City of St. Louis. The case was submitted to the jury under the humanitarian doctrine for failure of the defendant to slacken the speed of the locomotive and coal cars. The jury, being unable to agree on a verdict, was discharged and a mistrial declared on February 27, 1963. On the following day the defendant, pursuant to S.Ct. Rule 72.02, V.A.M.R., filed its motion for judgment in accordance with its motion for a directed verdict which, in due course, was sustained and judgment was entered in favor of the defendant. The plaintiff appealed and contends in this court that there was direct evidence that the speed of the train could have been slackened sufficiently to have avoided the accident and, in the alternative, that the court should have permitted a retrial of the case on other theories of negligence. The parties will be referred to as they were designated in the trial court.

At the place in question, Carondelet Boulevard runs generally east and west and the defendant’s single set of tracks extends north and south. The plaintiff was driving his automobile west near the center line of Carondelet on his way to work at about 6:30 a. m. on January 21, 1960. The four coal cars, each 52 feet long, were being pushed north by a locomotive. It was near daybreak but still dark and the headlights of the automobile and the locomotive were turned on. The crossing was equipped with electric flasher-type warning signals. It is undisputed that the lights were flashing as the plaintiff approached the crossing and were seen in operation by the plaintiff. There were two streetlamps at the intersection and at least one of them was lighted at the time. The plaintiff testified he did not hear any whistle or bell sounded until after the accident.

The plaintiff was familiar with the crossing having passed over it every morning and every afternoon for about a year on his way to and from work. The plaintiff looked to his left when he was about 100 feet from the crossing and saw the headlight and “the bulk of the engine” about 250 feet south of the crossing; he did not see anything out ahead of the locomotive. It looked to the plaintiff as if the engine “was setting still”. When plaintiff first saw the engine, he was driving 20 to 23 miles per hour. He then took his eyes “off the train and looked straight ahead and went on.” He never looked to his left again. When he saw the flasher lights operating, he had slowed somewhat by removing his foot from the accelerator. When he got “right on the tracks”, he heard a noise and “went for” his brakes, but by that time he was hit. When he was on the crossing and started to apply his brakes, the plaintiff was moving at the rate of about 18 miles per hour. Traveling at a speed of 18 to 20 miles per hour, he could have stopped his automobile within 40 to 45 feet after the first appearance of danger. The leading coal car struck plaintiff’s automobile at the left rear door and plaintiff was thrown from the car and injured.

The plaintiff admitted that he had told a police officer after the accident that his brakes had failed and that he had been unable to stop before going onto the tracks. He denied that he had told employees of the defendant the same thing immediately after the accident. There was evidence that the plaintiff had had his brakes repaired about three months before the collision, and a mechanic who examined the wrecked automobile sometime after the occurrence testified that the brakes appeared to be in good operating condition.

A junkyard with a small building on it was located in the southeast quadrant of the intersection but apparently this did not obstruct in any substantial degree the view of the plaintiff or defendant’s engineer. Excerpts from the depositions of defendant’s engineer and two brakemen were read into evidence by the plaintiff as a part of his case. This depositional evidence tended to show that the engineer first observed the headlights of plaintiff’s automobile when it was about 300 feet east of the crossing; he next saw the automobile when it emerged from behind the junkyard building about 60 to 80 feet from the tracks. Primarily he was watching the brakeman on the lead coal car because he was required to take signals from him. All during the time in question, the engineer was ringing the bell and blowing the locomotive horn, two longs, one short, and one extremely long, until he completely occupied the crossing. The train was moving at five or six miles per hour and its speed did not vary from the time the engineer first saw plaintiff’s car until the collision occurred. When the engineer observed the automobile, there was nothing to indicate to him that the plaintiff was not going to stop before going onto the tracks; the engineer made no application of the train brakes until about the time the impact occurred. He did not get any signal from the brakeman until he started to swing his lantern just before the collision.

There were no reflectors or lights on the coal cars other than the signal lanterns of the two brakemen on the leading coal car. The four coal cars were being moved from an industrial plant to where the rest of the train was standing. According to the testimony, this was an everyday occurrence. Brakeman Nagel testified his signal light was on the outside at the front of the lead car and it was shining toward the plaintiff. Nagel further testified that when he first saw the plaintiff’s automobile, it was approaching at a pretty good speed. Then it slowed up, and Nagel thought it was going to stop, but instead it increased its speed and ran onto the tracks in front of the coal car. When the collision occurred, broken glass from the automobile was thrown up into the coal car. The first question is whether the evidence was sufficient to support a submission of humanitarian negligence in failing to slacken the speed of the train.

In determining the sufficiency of the evidence to support the submission, the reviewing court must consider as true the evidence favorable to the plaintiff’s case together with all favorable inferences that can reasonably be drawn therefrom, and evidence to the contrary must be rejected. The defendant contends, among other things, that there was no substantial evidence, either direct or circumstantial, that the defendant had the ability, after the plaintiff came into a position of imminent peril, to slacken the speed of its train sufficiently to avoid the collision. The plaintiff contends, on the other hand, that he “almost escaped” and there was direct evidence to furnish the necessary proof. The plaintiff’s instruction submitting humanitarian negligence hypothesized that the defendant’s employees in the exercise of ordinary care could have seen the plaintiff in a position of imminent peril “in time thereafter by the exercise of ordinary care and with the means and appliances then and there at hand and with reasonable safety to defendant’s equipment and all persons therein to have slackened the speed of said locomotive and coal cars,” and thereby avoided the collision and plaintiff’s injury.

A humanitarian case which leaves one or more of the essential elements to guesswork, speculation, or conjecture is not for the jury. Moore v. Ervin, Mo., 374 S.W.2d 142, 149 [3]; Davis v. St. Louis Public Service Co., Mo., 316 S.W.2d 494, 497 [4]. The plaintiff does not deny that the defendant’s ability to slacken the speed of the train in time to avoid the collision was an essential element of his case but contends that the proof was sufficient. The plaintiff testified he was about 100 feet east of the crossing when he saw the engine about 250 feet to the south. The length of the coal cars' indicates that the north end of the leading coal car was at that time about 42 feet south of the crossing. The defendant also testified that he could have stopped his automobile within 40 to 45 feet traveling at a speed of 18 to 20 miles per hour. Based on the evidence in the record, the front of the lead coal car would have been about 24 feet from the crossing when the plaintiff was 45 feet east of that point.

The plaintiff says he was oblivious to the approach of the train as shown by his testimony that after he looked to the left and saw the engine, which he thought was stationary, he did not look at the engine again but looked straight ahead and traveled at the same speed until he arrived at the crossing and heard a noise to his left just before the collision occurred. The members of a train crew upon seeing the motor -vehicle approaching the railroad crossing while the vehicle was still in a place of safety, and at such distance as to allow the driver a reasonable opportunity to stop before going into the path of the train, were entitled to assume that the motorist was not oblivious to the approach of the train and would stop short of its path unless the driver showed some reasonable appearance of being oblivious. Reedy v. Missouri-Kansas-Texas R. Co., Mo., 347 S.W.2d 111, 116 [3]; Stith v. St. Louis Public Service Co., 363 Mo. 442, 251 S.W. 2d 693, 696-967 [6], 34 A.L.R.2d 972. It follows that obliviousness, of which there is no discernible manifestation, is not sufficient to extend the zone of imminent peril. The darkness prevented the crew members from seeing whether the plaintiff appeared to be attentive. The warning lights at the crossing were flashing. The testimony of the crew members was that there was nothing to indicate that the automobile would not be stopped before it reached the crossing. In fact, brakeman Nagel testified that the automobile appeared to be slowing down, then speeded up as it neared the crossing. The plaintiff himself confirmed that he slowed somewhat by releasing the pressure on the accelerator when he saw the crossing lights flashing. He cannot rely upon obliviousness in these circumstances.

There was testimony by the engineer that he applied the brakes on the train at about the time of the collision; however, there is no evidence as to the type of brakes or their condition, the load or tonnage in the coal cars, whether the train was operating on a grade or otherwise, the type of locomotive and other equipment. These are matters that ordinarily have to be taken into consideration in forming an opinion regarding the distance in which a train could be stopped or its speed slackened. The plaintiff asserts that proof of these factors and opinion evidence based thereon was not necessary. He cites Woods v. Kurn, Mo.App., 183 S.W.2d 852, Stith v. St. Louis Public Service Co, 363 Mo. 442, 251 S.W.2d 693, 34 A.L.R.2d 972, Smith v. Thompson, 346 Mo. 502, 142 S.W.2d 70, and Diel v. St. Louis Public Service Co, 238 Mo.App. 1046, 192 S.W.2d 608. In general, the distances involved in the cited cases and the time for the defendant to take action were such that it was obvious that defendant’s vehicle could have been slackened somewhat. They are not controlling or persuasive on the facts of the instant case.

Since the zone of peril was not enlarged by reason of obliviousness, there was no humanitarian duty on the part of defendant’s employees to take evasive action until the plaintiff was 45 feet or less from the crossing. Two additional factors serve to reduce the time for effective action and to prevent application of the “almost escaping” doctrine. One is that two reaction times were involved. The engineer testified that it was his duty to take signals from the switchman; therefore, allowance would have to be made for reaction time for the switchman to comprehend the situation of imminent peril and signal the engineer. The engineer would have to receive the signal and to react to it by applying the brakes. The other factor is that the plaintiff testified that he applied his brakes rather than accelerating or permitting the automobile’s momentum to carry it across ahead of the train. These and other facts in evidence left the ability to slacken the speed of the train entirely in' the realm of speculation.

We conclude that there was no substantial evidence on which a jury could find that after the plaintiff came into a position of imminent peril the defendant’s engineer could have slackened the speed of the locomotive and coal cars sufficiently to have avoided the collision; and the trial court, therefore, properly entered judgment for the defendant. Moore v. Ervin, Mo., 374 S.W.2d 142, 146 [2]; Stephens v. Thompson, Mo., 293 S.W.2d 392, 395 [6]; Hunt v. Chicago, M., St. P. & P. R. Co., 359 Mo. 1089, 225 S.W.2d 738, 740 [2]; West v. St. Louis-San Francisco Ry. Co., Mo., 295 S. W.2d 48, 54—55 [8,9]; Taylor v. Missouri, K. & T. R. Co., 357 Mo. 1086, 212 S.W.2d 412, 414 [1],

The plaintiff further contends that there were other theories of negligence upon which he could proceed and that the cause should be remanded unless the reviewing court is convinced that the facts are such that a recovery cannot be had citing Smith v. Terminal R. Ass’n of St. Louis, Mo.App., 160 S.W.2d 476; Lamont v. Thompson, Mo., 303 S.W.2d 589; Crews v. Illinois Terminal R. Co., Mo.App., 260 S. W.2d 765, and Wren v. St. Louis Public Service Co., Mo., 333 S.W.2d 92. The plaintiff suggests that he could make a submissible case on a failure to warn of the approach of the unlighted coal cars. This theory of negligence was pleaded by the plaintiff, and there was evidence as to warnings given. The failure to warn appears to have been fully developed at the trial. The plaintiff testified that an automobile had passed over the crossing some distance ahead of him while the flasher lights were operating, and he undertook to prove that it was a practice or custom of motorists to drive over the crossing while the flasher lights were operating. The contention appears to have more weakness than substance, but it need not be explored because the question has not been presented here and is mentioned only by way of argument.

Our attention has not been directed to anything that might be termed a misadventure in that a ground of recovery, appearing to be reasonably valid, was not pleaded or anticipated in the evidence. On the contrary, it appears that the plaintiff’s submission was a matter of legal strategy. A judgment should not be reversed and the cause remanded for an additional trial or trials merely to permit a party to experiment with different theories as to his adversary’s liability. Borrson v. Missouri-Kansas-Texas R. Co., 351 Mo. 229, 172 S. W.2d 835, 851 [15]; Farmer v. Taylor, Mo. App., 301 S.W.2d 429, 434-435 [10].

Accordingly the judgment is affirmed.

EAGER, J., concurs.

FINCH, J., not participating because not a member of the court when cause was submitted.


text:
    CITY OF ST. LOUIS, Missouri, Respondent, v. Joseph E. FLYNN, Appellant.
    No. 50490.
    Supreme Court of Missouri, Division No. 2.
    Jan. 11, 1965.

      Thos. J. Neenan, City Counselor, Thomas F. McGuire, Daniel T. Tillman, Assoc. City Counselors, St. Louis, for respondent.
    Carl E. Starkloff, St. Louis, for defendant-appellant.
   STOCKARD, Commissioner.

This proceeding was commenced in the Police Court of the City of St. Louis, and an appeal was taken to the St. Louis Court of Criminal Correction. There an amended information was filed, and after trial appellant was found guilty and fined $250. The appeal to this court is on the theory that the constitutionality of a city ordinance is challenged. Art. V, Sec. 3, Constitution of Missouri, V.A.M.S.

By the amended information it was charged that “on or about the 29th day of November, 1962” appellant failed “to maintain the premises [previously described and of which he was the owner] in good repair and structurally sound, to wit: front steps cracked and broken; walls, chimneys, and foundation need tuckpointing; second floor porch and banister in state of general disrepair.” It was then alleged that appellant had been notified in writing by the building commissioner to correct the above conditions, and that the above acts were “in violation of Ord. S0S49, sec. 390.016 thru 394.020 & 1.100 as amended by Ord. 51637, sec. 390.020 thru 394.090.”

Ordinance 50549 constituted “The Municipal Code” of the City of St. Louis of which Chapters 390 through 394, entitled “Housing,” were a part. Chapter 390 defines various terms used in the ordinance including “dwelling unit” which was defined as “Any room or suite of rooms with facilities for regular cooking and occupied by a person or a family.” Section 390.020 provides that “Every building used in whole or in part as a home or residence of a single family or person and every building used in whole or in part as a home or residence of two or more persons or families, living in separate apartments, shall conform to the requirements of Chapter 390 to 394, inclusive, * * Certain sections of Chapter 391 provide for minimum “housing construction requirements” pertaining to windows in “habitable rooms;” sinks and toilets in “dwelling units;” and rooms in a basement of an “existing building.” Section 391.060 provides that “The owner shall keep every dwelling unit and all the parts thereof in good repair, structurally sound and fit for human habitation,” and that “All steps, * * * porches, * * * chimneys, * * * interior and exterior walls and ceilings shall be kept in good, sound, safe and usable condition.” Chapter 392 provides for the enforcement of the housing regulations, and it is there stated that after notice of deficiencies and expiration of the time to make repairs, the failure of an owner to comply shall be a misdemeanor. Section 1.100, referred to in the amended information, provides the penalty for a violation of the Municipal Code.

Subsequent to the date of the alleged offense, and prior to the filing of the amended information, Ordinance 50549 was repealed, including chapters 390 through 394, but the repealing ordinance, No. 51637, enacted a new housing law and contained the usual saving clause to the effect that violations of Ordinance 50549 prior to its repeal should not be affected thereby, and that prosecutions for such offenses should be instituted and proceeded with as if no repeal had occurred. The reference to Ordinance 51637 in the amended information does not purport to be limited to the repealing and saving clauses. In addition, it is not strictly correct to say that Ordinance 50549 was “amended” by Ordinance 51637. But, appellant could not properly be charged with a violation of an ordinance not in effect at the time of the alleged offense, and therefore, we construe the reference to be to the repealing and saving clauses, and beyond that as surplus-age.

We look now to the evidence in this case. An inspector of the city building department testified that he inspected appellant’s building about November 29, 1962, and he “observed the building to be in a state of disrepair,” that the rear porch on the second floor “was deteriorated to a point where the floor joists were pulled apart, the flooring had dropped,” and also, as to the chimney on the east side, “the mortar was missing from the brick and was extended out from the building, the chimney was broken apart, it was cracked on the building, and the front side facing north and the rear stairwell, the stone was missing.” Several photographs were introduced in evidence and they show the conditions described as to the front steps and the porch. The photographs do not show the condition described as to the chimney. One photograph shows a settling crack in a brick wall which was minor in nature. There was no evidence that the “walls, * * * and foundation need tuckpointing.”

We turn now to the issue of whether this court has jurisdiction of this appeal. Of the ten points in appellant’s brief, nine are challenges to the constitutionality of part or all of Ordinance 51637, but as previously mentioned appellant could not properly have been charged with a violation of that ordinance, and the only portions thereof which can be material to the pending case are the repealing and saving clauses, neither of which is challenged. Appellant asserts that he has challenged the constitutionality of Ordinance 51637 because he was charged with a violation thereof in the amended information. We note also that the judge of the Court of Criminal Correction found appellant “guilty, as charged, in the information.”

A constitutional question for purposes of vesting this court with jurisdiction does not have to be meritorious, but it must exist. It appears that appellant’s challenges reasonably could be construed as being made against the corresponding provisions of the ordinance in effect at the time of the alleged violations. The challenges are of the nature which would be applicable to either ordinance. Although we find no precedent for this unusual situation, we conclude that jurisdiction of this appeal is in this court.

In the tenth point in appellant’s brief he asserts that the court erred in overruling his motion to dismiss the amended information for the reason that it “did not follow the language or substance of the •ordinance,” which we construe to mean that it did not allege an offense, and appellant .also asserts that the evidence was insuffi■cient to show a violation of “the ordinance.” Although “the ordinance” is not identified by number we construe this as referring to Ordinance 50549, the only one ■ of which appellant could have been found guilty. By reason of our ruling on this assignment of error, we find it unnecessary to rule whether Ordinance 50549 is unconstitutional for any of the reasons advanced by appellant. However, jurisdiction of the ■case once acquired because of a constitutional issue is not divested because the case is decided on other grounds. McCord v. Missouri Crooked River Backwater Levee District of Ray County, Mo., 295 S.W.2d 42, 44; In re Search Warrant of Property, etc., Mo., 369 S.W.2d 155.

Respondent does not attempt to demonstrate what provision of Ordinance 50549 is relied on as a basis for the amended information. It does no more than state that “The information follows the language of the Ordinance 50549, Section 390.010 through 394.020,” which, we add by way of comment, consists of ten pages in respondent’s brief printed in small type. Section 390.020 of Ordinance 50549 requires that every “building used in whole or in part as a home or residence of a single family or person and every building used in whole or in part as a home or residence of two or more persons or families, living in separate apartments, shall conform to the requirements of Chapters 390 to 394, inclusive, * * There is no testimony whatever in this case that the building owned by appellant was used as a home or residence by anybody or that it contained separate apartments. At one time in his testimony appellant referred to a tenant of the building, but an objection by respondent was sustained. Photographs in evidence might be considered to indicate that the building was designed for residential purposes, but that would be speculative. However, we cannot find any provision of “Chapters 390 to 394” which was violated by the acts and conditions alleged in the information. The only provision which even arguably is applicable is contained in Section 391.060 and which provides that “The owner shall keep every dwelling unit and all the parts thereof in good repair, structurally sound and fit for human habitation,” and which also, with reference to dwelling units, contains the previously quoted provisions pertaining to “steps, * * * porches, * * * chimneys, * * * [and] interior and exterior walls.” But, as noted, a “dwelling unit” is defined in the ordinance as “any room or suite of rooms with facilities for regular cooking and occupied by a person or a family.” For the purposes of determining whether this ordinance was violated by appellant we are limited to that legislative definition of the term. The record in this case is totally devoid of any evidence from which it might even be inferred that appellant’s building was a “dwelling unit” within the meaning of Ordinance S0S49. In fact, there is no evidence that it contains a room or suite of rooms, and there is no evidence that there are any cooking facilities of any type or nature. The most that can be said is that the evidence shows appellant owned a brick building (discernible from a photograph) at the stated address in the City of St. Louis with a chimney, front steps, a second floor rear porch, and possibly a tenant.

Prosecutions by municipalities for the violation of a municipal ordinance have been held to be civil actions to recover a debt or penalty due the city for the infraction of the ordinance. City of Webster Groves v. Quick, Mo., 319 S.W.2d 543; City of Raytown v. Roach, Mo.App., 360 S.W.2d 741. Therefore, the sufficiency of the complaint or information is to be determined by the same rules that are applicable in other civil actions. Kansas City v. Wiskur, Mo.App., 343 S.W.2d 89. But even so, the “courts have recognized and adhered to the general rule that the complaint must specifically allege the facts which amount to the offense defined and forbidden by the ordinance.” City of Raytown v. Roach, supra; City of St. Louis v. Polar Wave Ice & Fuel Co., 317 Mo. 907, 296 S.W. 993, 54 A.L.R. 1082. Stated conversely, “an information charging violation of an ordinance without specifically alleging facts amounting to violation is insufficient.” Kansas City v. Wiskur, supra. In this case, considered in connection with the terms and provisions of Ordinance 50549, neither the facts alleged nor the facts established by evidence constitute a violation of the ordinance, and for that reason the judgment appealed from cannot stand.

We make this further comment concerning a matter which could be considered to be included in the general assignment of error that the evidence was insufficient. Section 392.040 of Ordinance 50549 requires a written notice to the owner of a building “of the manner in which such building does not conform” to the requirements of Chapters 390 and 391. By Section 392.050 the owner has a minimum of sixty days from the issuance of the notice to remedy the conditions therein specified, and he shall not “be held responsible for any condition that is not specifically described in such notice.” In this case the notice relied on by the city was addressed to “Mrs. Rosemary Flynn, 1441 Norman Place, St. Louis 22, Missouri.” This notice was not directed to appellant, and the address of Mrs. Flynn is not the address of appellant. There is no showing whatever in the record that this notice, or that any notice made pursuant to Section 392.040, was delivered to or came to the attention of appellant at least sixty days prior to the date of the alleged offense.

The judgment is reversed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

STORCKMAN, P. J., and EAGER, J., concur.

FINCH, J., not participating because not a member of the court when cause was submitted.


text:
    Esther M. BERGMAN, Appellant, v. BOARD OF TRUSTEES OF FIREMEN’S RETIREMENT SYSTEM OF ST. LOUIS, Missouri, Respondent.
    No. 50441.
    Supreme Court of Missouri, Division No. 2.
    Jan. 11, 1965.
    Wm. G. O’Donnell, St. Louis, for appellant.
    Thos. J. Neenan, City Counselor, Aubrey B. Hamilton, Assoc. City Counselor, St. Louis, for respondent.
   STOCKARD, Commissioner.

This is an appeal from the judgment of the Circuit Court of the City of St. Louis wherein the petition of appellant, filed pursuant to the Administrative Procedure Act, Chapter 536, RSMo 1959, V.A.M.S., for review of the finding and decision of the Board of Trustees of The Firemen’s Retirement System of St. Louis, Missouri, was “denied.” Appellant seeks increased pension benefits, and the accrued amount to which she claims she is entitled at the time of this appeal, over and above the amount paid to her, exceeds $15,000. Appellate jurisdiction is in this court.

Appellant’s husband, Walter Bergman, died on October 18, 1956, while a member in good standing of St. Louis Fire Department. As his unremarried widow, appellant has been paid and is receiving from the Board of Trustees the sum of $35 per month. She contends that her husband was killed or fatally injured in the line of duty, and for that reason she is entitled to a much larger pension.

At the time of the death of Walter Bergman the firemen’s pension system in cities of 500,000 inhabitants or more was authorized by Sections 86.480-86.630 RSMo 1959, V.A.M.S. These sections were subsequently repealed, but provision for said pension systems was continued by Laws of Missouri 1959, Senate Bill No. 314, now Chapter 87 RSMo 1959, V.A.M.S. Authorization for the payment of the $35 per month to appellant is found in Section 86.-540, prior to its repeal. The corresponding provision, but with increased benefits, is now Section 87.220. Section 86.547, prior to its repeal, authorized payment to a widow of larger amounts when death was the result “of an accident in the performance of duty and not caused by negligence on the part of the member.” The corresponding provision, with certain changes, is now Section 87.235. Notwithstanding these statutory provisions, and with no reference whatever being made to them or to any statute authorizing the pension benefits to be established by ordinance, the parties agree that appellant’s right to the increased benefits claimed by her is governed by, and that these proceedings have been brought pursuant to, Section 32 of Ordinance 48174 of the City of St. Louis, which, as set out in the transcript, is as follows:

“Any unremarried widow of a fireman who has heretofore been or may hereafter be killed or fatally injured in the line of duty shall be entitled to receive a pension at the rate of one-half of the average earnable compensation of such deceased fireman during his last ten years of service or during his entire period of service if less than ten years; * * (Emphasis added.)

After hearing was held on appellant’s claim before the Board of Trustees, the following entry was made in the minutes of the Board for April 27, 1960:

“The Board considered the official transcript of the hearing held before the Board of Trustees on January 29, 1960 and the reopened hearing held on February 18, 1960, in the claim of Esther M. Bergman for increased benefits under Board Bill 363, Ordinance 48174, and on a motion by Mr. Coburn, seconded by Mr. McMahon, the claim' was denied due to insufficient evidence to show that the death of Chief Walter P. Bergman, former Fire Marshall of the City of St. Louis, was the result of an accident.” (Emphasis added.)

We note here that this minute entry does not comply with the provision of Section 536.090 of the Administrative Procedure Act pertaining to the contents of a decision and order of an administrative agency in a contested case.

Appellant’s petition for review, pursuant to Section 536.100 was “denied” by the circuit court, but we shall assume that by this order the court intended to and did affirm the decision and order of the Board of Trustees.

We are first confronted with a motion by respondents to dismiss this appeal because the “points relied on” in appellant’s brief contain only abstract statements not shown to be related to any action or ruling of the circuit court, and also because the statement of facts is not “fair and concise.” See Civil Rule 83.05, V.A.M.R. We do not consider the statement of facts to be inadequate, but the statement of the points relied on is subject to the criticism made. However, the basic complaint of appellant can be determined, and in a liberal exercise of discretion we overrule the motion to dismiss the appeal.

As previously noted, we conclude that the parties have agreed that the terms of Section 32 of Ordinance 48174 govern the right of appellant to the claimed increase in benefits. We reach this conclusion because of the following circumstances. Although the record before us does not contain any petition or claim on the part of appellant which was filed with the Board of Trustees and which brought about the hearing, counsel for the Board, at the conclusion of the hearing, read into the record what he called “a few lines from the ordinance under which this proceeding has been brought, being Section 32 of Ordinance 48174.” In appellant’s petition to the circuit court it is alleged that Walter Bergman “was fatally injured in the line of duty and under the provisions of Ordinance 48174 * * * which was enacted under authority of [Section] 86.547,” and that as the unremarried widow appellant is entitled to receive a pension in the amount of “one-half of the average earnable compensation of such deceased fireman during his last ten years of service.” Respondents alleged in their answer that Ordinance 48174 had been repealed by Ordinance 49623, but this latter ordinance was not placed in evidence. The application of Ordinance 48174 was not otherwise denied. The brief of each party on this appeal is devoted to the issue of whether there is competent evidence that Walter Bergman was fatally injured in the line of duty. It is thus apparent that this case was tried before the Board of Trustees and the circuit court, and is now presented to this court on the theory that the sole issue is whether appellant is entitled to increased benefits by reason of the terms of Section 32 of Ordinance 48174.

We shall next look to the decision and order of the Board of Trustees as reflected by the minute entry of April 27, 1960. It is first stated that the Board had considered the transcript of the hearing held on the claim of appellant for increased benefits "under * * * Ordinance 48174,” and it is then held that the claim is denied because there was “insufficient evidence to show that the death * * * was the result of an accident.” This finding has no relation whatever to the issue presented by a claim filed pursuant to Section 32 of Ordinance 48174, which is whether Walter Bergman was fatally injured in the line of duty. It would appear from this finding that even though the Board said the hearing pertained to a claim under Ordinance 48174, it purported to rule the case on whether appellant was entitled to increased benefits pursuant to Section 86.547 (before its repeal) or possibly pursuant to Section 87.235. What has occurred in this case demonstrates the soundness of the requirement in Section 536.090 of the Administrative Procedure Act that in every contested case the decision and order of an administrative agency shall be in writing, and in those cases other than those specifically excepted, “the decision * * * shall include or be accompanied by findings of fact and conclusions of law.”

From the meager record before us we cannot confidently determine what law is applicable to appellant’s claim, that is, whether it is that set forth in the statutes or that contained in the ordinance, and we certainly cannot determine what law was applied to what facts by the Board of Trustees.

Section 536.140 of the Administrative Procedure Act provides that the scope of judicial review of the action of an administrative agency shall extend, among other things, to an inquiry of whether the action is for any reason unauthorized by law, or whether it involves an abuse of discretion, or whether it is arbitrary, capricious or unreasonable. We do not here rule that the provisions of Section 32 of Ordinance 48174 do or do not govern this case, but the contention pleaded in the circuit court by appellant, and the theory upon which this case was presented to this court by both parties is that they do. When we accept this case upon that theory, the action of the Board of Trustees in denying appellant’s claim for the reason that the death of Walter Bergman did not result from an “accident,” when the issue was whether he was “killed or fatally injured in the line of duty,” was unquestionably unauthorized. In addition, such a decision and order would be unreasonable and would constitute an abuse of discretion within the meaning of Section 536.140. We do not consider it surprising that few cases can be found comparable to this one. See, however, the general statement in 2 Am. Jur.2d Administrative Law § 646, that in an appropriate proceeding courts may and will pass on, grant relief from, or set aside agency actions which are not in accordance with law, are unlawful, illegal, invalid, or are in excess of statutory jurisdiction, power or authority, “as where they are not in accordance with the legislatively imposed standards, or are short of statutory right; are based upon or affected by other error or mistake of law or erroneous view of the law, or involve an erroneous application of the law to the facts; * *

The judgment of the circuit court is reversed, and the cause is remanded with directions to the circuit court to set aside its judgment and enter a new judgment reversing the award of the Board of Trustees .and to remand the cause to the Board for further proceedings consistent with applicable law and the views here expressed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

STORCKMAN, P. J., and EAGER, J., concur.

FINCH, J., not participating because not a member of the court when cause was submitted.