author: DALTON, Judge.

text:
    Louise B. GRUENEWAELDER, now known as Louise B. Howe, Appellant, v. Ewald L. WINTERMANN et al., Respondents.
    No. 48934.
    Supreme Court of Missouri, Division No. 1.
    Sept. 10, 1962.
    Motion for Rehearing or for Transfer to Court En Banc Denied Oct. 8, 1962.

      Robert Kratky, James B. Herd, St. Louis, for appellant.
    Biggs, Hensley, Curtis & Biggs, Ward Fickie, William C. Dale, Jr., St. Louis, for respondent, Security-Mut. Bank and Trust Co.
    Bryan, Cave, McPheeters & McRoberts, R. H. McRoberts, R. H. McRoberts, Jr., St. Louis, for respondents, Ewald L. Winter-mann and Edmee Wintermann.
   DALTON, Judge.

On November 25, 1957, plaintiff, Louise B. Gruenewaelder, instituted this action in the Circuit Court of the City of St. Louis, to recover $150,000 actual damages and $150,000 punitive damages from Ewald L. Wintermann, Edmee Wintermann, and the Security Mutual Bank and Trust Company, a corporation of St. Louis, Missouri (formerly known as the Mutual Bank and Trust Company), on the theory that defendants had entered into a conspiracy to defraud her of certain mining property located in the State of North Carolina and had so defrauded her.

When the pleadings were completed, the defendants filed a joint motion for summary judgment and offered evidence in support of it in accordance with the provisions of Supreme Court Rule 74.04(e), V.A.M.R. The joint motion was sustained by the trial court and plaintiff’s petition was dismissed with prejudice. Plaintiff has appealed.

Under Supreme Court Rule 82.12, the parties have stipulated that the appellate transcript shall consist only of the pleadings, affidavits and exhibits necessary to the trial court’s determination of defendants’ joint motion for summary judgment. Supreme Court Rule 74.04, with reference to summary judgments, in part, provides: “(c) * * * Judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. * * * (h) In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.”

Defendants’ joint motion for summary judgment was based on the theory that plaintiff’s action was barred by the five-year statute of limitations, to wit, Section 516.120 RSMo 1959, V.A.M.S., and the court so held. That section, in part, provides : “Within five years: * * * (5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud.”

Appellant insists that “the pleadings, exhibits, and memoranda before the trial court failed to show by unassailable proof that the appellant knew of the respondents’ conspiracy or of the acts of the conspirators in furtherance of the conspiracy” for more than five years preceding the filing of her petition; and that respondents’ affirmative defense of the statute of limitations presented a jury issue. Appellant says that defendants have not sustained the burden of proof required under Rule 74.04 because the issues presented “may not be conclusively determined by an examination of the pleadings, exhibits, and memoranda submitted by the respondents”; and that “any doubt as to the existence of an issue of fact for a jury’s determination necessarily precludes a finding in favor of movants.” Appellant also contends that respondents failed to show by unassailable proof that the last item of damage sustained by the appellant pursuant to the conspiracy of the respondents was sustained at a time more remote than the five-year statutory period governing actions for conspiracy to defraud. Appellant relies upon Section 516.-100 RSMo 1959, V.A.M.S., which provides that “the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.”

Plaintiff’s petition, filed November 25, 1957, alleged that she had been the owner of a mineral lease on a tract of mineral-bearing land in North Carolina; that in 1946 she conveyed to Ewald L. Wintermann a ⅜ interest in said mineral lease in consideration of funds advanced by him as a co-adventurer; that she subsequently acquired title to the mentioned real estate; that in purchasing the property she had incurred a mortgage debt in an approximate amount of $30,500, which she was financially unable to liquidate; that, thereafter, Ewald L. Wintermann and his wife, Edmee Wintermann, aided and abetted by Edward C. Schmidt, who was acting as President of the Mutual Bank and Trust Company, fraudulently and by scheme and device perpetrated acts whereby the Wintermanns obtained title to said land and totally excluded plaintiff from the ownership thereof; that prior to January 30, 1951, plaintiff had a possible buyer for a part of her land for $125,000 “which would have enabled her to adjust and satisfy the existing indebtedness owed by her for the balance of the purchase price paid for the aforesaid tract of land and provide her, in addition thereto, funds for developing said property”; that Ewald L. Wintermann, “who was then participating with her as co-adventurer,” opposed the sale (and apparently refused to release or sell his ⅜ interest in the mineral lease) and told her that, if she would convey a half interest in the land to him, he would, because of his influence, be able to negotiate a loan of $65,000 from the respondent bank; that with the money so obtained she could pay off the balance of the purchase price of the land in question; “that pursuant to the trust invested with the defendant, Ewald L. Wintermann, by virtue of the co-interest they had in said property” (and because he told her that he would pay her $5,000 for a half interest in the mentioned land and that they would then be able to obtain a joint loan of $65,000 from the respondent bank in return for notes and a deed of trust on the property, and that the proceeds of such loan could be used to satisfy her $28,000 purchase mortgage debt and interest and have the balance for their further joint use), she accepted the proposal and conveyed a half interest in the property to Wintermann. She further alleged that she was told by said Schmidt that the bank was making a joint loan to her and her husband and to both of the Winter-manns and that it would be a twelve-month loan.

Plaintiff alleged that, on January 30, 1951, the Wintermanns and said Schmidt, who was then acting for defendant bank, “induced and persuaded plaintiff and her then living husband to execute” a note for $65,-000, with 11 interest notes, and to secure said purported loan by a deed- of trust on the North Carolina property; and that these notes and the deed of trust were also signed by the Wintermanns to whom plaintiff had deeded a one-half interest in the mentioned property; however, plaintiff also alleged that she “believed she was obtaining” the loan.

Plaintiff further alleged that Ewald L. Wintermann and Edward C. Schmidt then and there stated and represented to plaintiff that by the execution of said notes and deed of trust plaintiff would receive $5,000 as “the proceeds from a check of that amount” from Ewald L. Wintermann “as additional payment to her to the moneys previously advanced to her for signing said deed of conveyance to defendant, Ewald L. Wintermann, of said undivided one-half interest in and to said real property situated in Buncombe County, North Carolina; and that, after payment of the mortgage debt from the proceeds of said loan, the balance of said funds derived from said loan of Sixty Five Thousand Dollars ($65,000.-00) would be deposited in a joint account which plaintiff and defendant, Ewald L. Wintermann, maintained with the defendant, Mutual Bank and Trust Company.”

Plaintiff further alleged that defendant bank did not make a joint loan to her and the Wintermanns, as represented to plaintiff, but instead secretly made a $65,000 loan to Ewald L. Wintermann personally, at which time he executed his own individual note for $65,000 dated January 30, 1951, and due in four months; that the defendant bank “never did make a joint loan in the sum of Sixty Five Thousand Dollars ($65,000.00) to plaintiff and defendants, Ewald L. Wintermann and Edmee Winter-mann, but in truth and fact made said loan to Ewald L. Wintermann only, and delivered the proceeds of said loan to Ewald L. Wintermann only, and delivered the proceeds of said loan on his own individual promissory note to the said defendant, Ewald L. Wintermann, without the knowledge and consent of plaintiff; that said defendants, on the pretext of having made a joint loan to plaintiff and defendant, Ewald Wintermann, as aforesaid, recorded and had recorded with the Register of Deeds of Buncombe County, North Carolina, the Deed of Trust executed on January 30, 1951, by plaintiff, * * * and thereby created a lien and encumbrance on plaintiff’s said property in the sum of Sixty Five Thousand Dollars ($65,000.00)”; that said notes and deed of trust were “falsely and fraudulent-' ly obtained by defendants, Ewald L. Win-termann and Edmee Wintermann in order that, when the said loan of Sixty Five Thousand Dollars ($65,000.00) was made secretly and separately by defendant, Ewald L. Wintermann, such Deed of Trust could be, and which was, used by defendants and recorded as aforesaid as if a loan had actually been made to plaintiff and defendants, Ewald L. Wintermann and Edmee Winter-mann; that defendants fraudulently and falsely concealed and covered up the fact that no loan was in truth and fact made to plaintiff and defendant, Ewald L. Winter-mann jointly, which plaintiff believed at the time to have been done.” (Italics ours.)

Plaintiff further alleged that Ewald L. Wintermann did not pay or intend to pay the said $5,000 and his check in that amount was not honored because of insufficient funds on deposit in said bank; that plaintiff executed the conveyance to the Winter-manns and the deed of trust to defendant bank on January 30, 1951 in reliance on the representations of said Schmidt and Ewald L. Wintermann and in ignorance of the fact that the deed of trust would be used in connection with the loan to Ewald L. Winter-mann alone, instead of a joint loan to her and the Wintermanns as represented to her; that the representations of Schmidt and Ewald L. Wintermann were false and fraudulent, in that no joint loan was ever intended, but instead it was intended that the deed of trust would be turned over to the Wintermanns, so as to enable them to claim ownership of the notes and to foreclose said deed of trust, purchase the property and terminate plaintiff’s ownership-therein, as was done, and she was cheated and defrauded of her property.

Plaintiff also alleged that “defendant,. Ewald Wintermann, as part of said fraudulent scheme and plan did, prior to January-30, 1951, represent to plaintiff that although he was a person of considerable means and sufficient to meet the monetary needs for their joint adventure, that he could not liquidate his assets conveniently at the time * * ⅜ »

There is no contention here that plaintiff did not in her petition allege facts to support all of the nine essential elements of actionable fraud. See 37 C.J.S. Fraud § 3, p. 215.

The defendant bank, in its amended answer, admitted that on or about January 30, 1951, it made a loan of $65,000 to Ewald L. Wintermann on his promissory note secured by a deed of trust on the North Carolina property; that plaintiff and her husband also executed the notes and deed of trust with the Wintermanns, as alleged and that the deed of trust was recorded. It was also admitted that plaintiff had conveyed a half interest in the North Carolina property to Ewald L. Wintermann, and that Ewald L. Wintermann had foreclosed on the North Carolina property. All other allegations of the petition are denied.

As affirmative defenses, the bank stated that plaintiff and the Wintermanns had litigated the question in issue here in a lawsuit in North Carolina; that in a suit instituted by plaintiff for the cancellation of the notes and deed of trust and for actual and punitive damages and for injunctive relief against foreclosure, all had been denied and judgment had been entered against plaintiff; that the court had held the Win-termanns to be the owners and holders in due course of the notes and deed of trust executed by plaintiff; that defendant bank was not a party to the litigation; but the plaintiff’s petition had charged that the bank had injured plaintiff by the transfer of the notes and deed of trust to the Wintermanns. The defendant bank further alleged that plaintiff had stipulated in the North Carolina proceeding that the deed of trust was valid and the Wintermanns could foreclose ; that plaintiff was now estopped from asserting that such foreclosure was improper and fraudulent, since the judgment was res ad-judicata. Defendant bank in its answer also alleged that plaintiff’s alleged cause of action was barred by the statute of limitations, Section 516.120 RSMo 1959, V.A.M.S.

The Wintermanns filed a joint answer to plaintiff’s petition admitting that plaintiff had conveyed to Ewald L. Wintermann a ⅜ interest in the mineral rights to the North Carolina property; that plaintiff had also conveyed a half interest in the North Carolina property to Ewald L. Wintermann; that Ewald L. Wintermann had executed the loan note mentioned in the petition; that plaintiff had executed the deed of trust on the North Carolina property; that such deed of trust had been recorded; and that Ewald L. Wintermann had foreclosed on the North Carolina property. All other allegations of the petition were denied. As an affirmative defense, the Wintermanns also alleged that the plaintiff’s cause of action was barred by the statute of limitations, Section 516.120 RSMo V.A.M.S. The Win-termanns further pleaded the North Carolina judgment as res adjudicata and set up a counterclaim based upon said judgment, since in the North Carolina litigation, Ewald L. Wintermann had asserted a counterclaim against plaintiff and had recovered judgment thereon. The basis of his counterclaim in that action was that plaintiff had engaged in a series of misrepresentations to Wintermann regarding their business ventures, the respective worth of the mining property, its mineral content, the value of the timber and the nature of the mining operations being conducted there by plaintiff, as well as alleged misappropriations of business funds by plaintiff. In the trial of the present proceedings the Winter-mann’s counterclaim, based on the $70,080.-26 judgment of the North Carolina court against plaintiff, was severed from the present proceeding and a separate trial and judgment ordered thereon. Therefore, it is not involved in this appeal from the summary judgment as entered by the trial court in this proceeding. Supreme Court Rule 82.06.

To Ewald L. Wintermann’s counterclaim, the plaintiff filed a brief reply wherein she admitted that she had filed suit against the Wintermanns in North Carolina, as alleged in defendants’ counterclaim, but she denied that her complaint in the North Carolina case set forth the same allegations as her petition herein, or that the same issues were tried and determined in that cause, and denied further that the North Carolina court had jurisdiction of the parties to said action, since Edmee Wintermann and defendant bank were not parties to said case. The remaining allegations of the counterclaim were not denied.

No new or amended reply was filed by plaintiff after the Wintermanns amended their answer and counterclaim in the court below, as hereinafter stated. The issues were submitted to the court on the basis of plaintiff’s original reply of April 8, 1958, to the Wintermanns’ original answer and counterclaim. Appellant’s brief so concedes. The amendment added to the Win-termanns’ answer included an allegation that, after all pleadings had been filed in the North Carolina suit, “the parties, Ewald L. Wintermann and Louise B. Gruenewaelder, agreed that defendant Ewald L. Winter-mann was entitled to foreclose on said real estate and, by stipulation of the parties, the (temporary) restraining order hereinabove referred to was dissolved, and it was agreed by and between the parties that only the monetary demands of the parties would thereafter be in litigation; (and that) the real estate hereinabove referred to was in due course sold at foreclosure to defendant Ewald L. Wintermann.”

In support of defendants’ joint motion for summary judgment there was also filed with the trial court duly authenticated copies of all pleadings, judgments and orders entered by the Superior Court of Buncombe County, North Carolina in the judicial proceeding to which the defendants in the pending action had made reference in their answers and counterclaim. In the North Carolina court proceedings Mrs. Gruenewaelder and Ewald L. Wintermann had each claimed to have been defrauded by the other in connection with their joint adventures and, in particular, in connection with the loan and deed of trust trans-' action which is the subject of the present litigation. The allegations in plaintiff’s petition, as filed in the North Carolina court on January 28,1956, quite closely follow the essential allegations of fact in her petition filed in the Circuit Court in the City of St. Louis in this proceeding on November 25, 1957, concerning the acts and representations of the Wintermanns and the bank and of plaintiff’s reliance thereon. As stated, the trial of the conflicting claims of the parties in the North Carolina court resulted in judgment for defendant Ewald L. Winter-mann and against plaintiff on all issues and the trial court made specific findings of fact that appellant obtained money from Ewald L. Wintermann by fraud; that she had converted to her own use certain of Win-termann’s moneys; that Wintermann was a holder in due course of the subject notes and deed of trust; and that Wintermann was entitled to recover from appellant the sum of $70,080.26. The judgment became final January 13, 1958.

The transcript of the proceedings in the North Carolina court further show that on or about December 20,1955, defendant Win-termann arranged for the appointment of a substitute trustee in the mentioned deed of trust, dated January 30, 1951, and began publication of a notice for a foreclosure sale of the described property under the deed of trust on January 30, -1956; and that on January 28, 1956, plaintiff instituted her action in the North Carolina court against Wintermann' and the substitute trustee, wherein she sought to restrain the defendants from conducting the foreclosure sale. She further sought to have the $65,000 note, interest notes and the deed of trust securing the same cancelled by order of the court or, in the alternative, that plaintiff be adjudged and declared “the beneficial owner of a one-half undivided interest in the obligation evidenced by said notes”; that the deed of trust be adjudged to be fully satisfied and cancelled of record; that plaintiff recover of defendant Wintermann $5,000, with interest from January 30, 1951 until paid, and that she further recover $50,000 in punitive damages. The relief prayed by plaintiff was denied.

In further support of the motion for summary judgment, as provided in Supreme Court Rule 74.04, the defendants filed with the trial court affidavits of Messrs. Kroner and Dunne, officers of the Federal Reserve Bank of St. Louis. The affidavits and the incorporated memoranda show that plaintiff within a few months after the closing of the loan with the defendant bank had two conferences with the affiants, during which conferences the plaintiff complained at length concerning the loan transaction which is the subject of her present action. She requested their intervention in her behalf in their supervisory capacity over the defendant bank, a member of the Federal Reserve System. The details of those conferences and the various statements, complaints and allegations which plaintiff made during the conferences, are set forth at length in the memoranda prepared immediately after the conferences. Plaintiff filed no opposing affidavit. Supreme Court Rule 74.04(e).

Appellant in her own brief in this court has reviewed these affidavits and memo-randa substantially as follows: Approximately two months after the date of the closing of the deed and loan transactions at the respondent bank, the appellant (accompanied by her daughter)' contacted officials of the Federal Reserve Bank of St. Louis, informed them of the activities of the respondents, and requested their intervention in 'behalf of the appellant in their supervisory capacity over the respondent bank (which is a member of the Federal Reserve System). The first conference between the appellant and the Federal Reserve officers occurred in early April, 1951; a second conference took place during the following month. Subsequent to each conference, a Federal Reserve officer drafted an office memorandum reciting the substance of the respective conferences.

During the meetings, the appellant informed the officers of the Federal Reserve Bank that she had been in business with respondent Ewald L. Wintermann prior to January 30, 1951, and that their business sorely needed additional operating capital on January 30, 1951, with which to retire an existing note held by the respondent bank and a mortgage outstanding on the mining property in North Carolina.

According to the memoranda, the appellant related to the officers that the respondent Ewald L. Wintermann arranged a joint loan at the respondent bank through its president, Ed. Schmidt. As a portion of the loan transaction, the appellant and her husband were to deed a one-half interest in the fee simple to respondents Ewald L. and Edmee Wintermann, in consideration of the payment of $5,000 in addition to the funds previously advanced by respondent Ewald L. Wintermann.

The memoranda reflect that the appellant then revealed how respondent Ewald L. Wintermann obtained a deed for a one-half interest in the fee simple to respondents Ewald L. and Edmee Wintermann, in consideration of the payment of $5,000 in addition to the funds previously advanced by respondent Ewald L. Wintermann.

The memoranda reflect that the appellant then revealed how respondent Ewald L. Wintermann obtained the deed for a one-half interest in the property by exchanging a worthless check for the deed of the appellant and her husband. The appellant also related that she had never received a joint loan but that her North Carolina property had nevertheless been unscrupulously encumbered by a deed of trust given to secure a loan which, in fact, was made to respondent Ewald L. Wintermann individually.

Appellant further reviewed the said mem-oranda, as follows: “During the course of the conferences, the appellant complained of the bank’s complicity with the other respondents. According to the memoranda, the appellant informed the Federal Reserve officials that the respondent bank’s executive officer, Ed. Schmidt, had: (1) interfered with sale and loan transactions favorable to the appellant; (2) manipulated the respondent bank into a dominant lending position in order that he might be able to demand such terms as he chose in the bank’s dealings with the appellant; (3) combined with Ewald Wintermann to force the appellant to sell a half interest in the property; (4) agreed to lend $65,000 to the appellant and respondent Ewald L. Wintermann jointly, when, in truth, the funds were secretly deposited in respondent Ewald L. Wintermann’s personal account; and (5) required the appellant and her husband to join in the execution of notes and a deed of trust on their North'Carolina property when the loan actually made by the respondent bank was made to respondent Ewald L. Wintermann individually prior to the execution of the notes and deed of trust signed by the appellant and her husband.” (Italics ours.)

We have also carefully reviewed the memoranda submitted concerning conferences between the plaintiff and the Federal Reserve Bank officers, and also a subsequent telephone conversation between her and a bank officer, when a report was made after a conference had been had with Mr. Schmidt with reference to plaintiff’s complaints. It is' clear from the memoranda •submitted that plaintiff was represented by •counsel at the time she executed the $65,000 note' and deed of trust with the Winter-mann's. Her counsel was a former President of the Missouri Bar and Mr. Winter-mann was represented by Mr. Donnell, a son of a former Governor of the State. The memoranda clearly reflect the fact that plaintiff complained that she had been misled by statements of Mr. Schmidt and Mr. Wintermann; that she had deeded one-half interest in the North Carolina property to Mr. Wintermann and received a worthless '-$5,000 check in return; thát she had been told that a loan of $65,000 was to be made by the bank to her and Mr. Wintermann jointly and was to be secured by a deed of trust on the North Carolina property, whereas she then knew that it was not a joint loan but a loan to Mr. Wintermann alone; and that the deed of trust that she had given was to protect Mr. Wintermann' and to secure Mr. Wintermann’s loan. In her several conversations, as indicated by the memoranda, she expressed a lack of good faith on the part of Mr. Schmidt and Mr. Wintermann; believed there was an improper combination between the bank and Wintermann, and even suggested that she believed a conspiracy existed. She subsequently said she had taken her complaints up with her counsel; and that she was interested in a settlement of the matter.

A few quotations from the memoranda taken at the time will explain the matter further. One memorandum of an interview with Mrs. Gruenewaelder on April 4, 1951, recites that shortly after January 30, 1951, Mrs. Gruenewaelder complained that she had “made inquiry as to the proceeds of the loan and was informed by Mr. Schmidt that a loan to her was never considered by the bank, and that her execution of the security documents had been taken ‘for the protection of Mr. Wintermann.’ She was informed that none of the loan had been credited to the joint account but that the joint account current ($14,000) balance resulted in a transfer of credits from Mr. Winter-mann’s personal account. She also learned that a short time before a substantial credit had been made to Mr. Wintermann’s account resulting from a loan secured by his individual property.”

After reciting how the proceeds of the $65,000 loan were applied, to wit, $30,000 on a prior mortgage and interest; $20,000 on an old note and $14,000 [sic] placed in Mr. Wintermann’s account, the memoranda proceeds : “Mrs. Gruenewaelder, however, is suspicious of the transactions in Mr. Win-termann’s individual account, feeling that she had but secured a prior loan to Mr. Wintermann and received nothing, and is also somewhat alarmed in that two of the interest notes, now overdue, have not been presented for payment. She feels that the hank has failed to deal with her in good faith, and that an improper combination exists between the bank and Mr. Wintermann to the detriment of her interests.” Mrs. Gruenewaelder “stated that Mr. Schmidt told her his bank would not advance the $65,000 unless she deeded such property interest to Mr. Wintermann. Mrs. Gruene-waelder says that, at this point, she felt herself to be the victim of sharp practice, but that the need of funds was so urgent she was willing to accept the terms proposed. ⅝ ⅜ * Mrs. Gruenewaelder says the understanding was (and that Mr. Schmidt had said) that, in return for such notes and deed of trust, the bank would advance the $65,-000 loan to Mr. Wintermann and herself jointly. However, (instead of to them) Mutual Bank and Trust Company in fact advanced the $65,000 to Mr. Wintermann personally and (according to Mrs. Gruene-waelder) actually had extended the loan prior to the closing on January 31. Mr. Wintermann (on about February 2) used approximately $30,500 of such proceeds to pay off the North Carolina creditors and used about $20,500 to retire the joint indebtedness with Mutual Bank and Trust Company. The remainder of the $65,000 (i. e. about $14,000) he deposited in the joint account of Mrs. Gruenewaelder and himself. The $5,000 check which he had given at the closing in return for her deed has never been paid * *

As stated, plaintiff filed no verified denial of the facts stated in the affidavits, exhibits and memoranda filed by defendants in support of their motion 'for summary judgment, and they stand admitted.' She did not avail herself of the remedy provided by Supreme Court' Rule 74.04(e), wherein it stated: “When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by' affidavits or as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

In sustaining defendants’ joint motion for summary judgment on May 26, 1961, the court approved the allegations of the defendants’ motion for summary judgment to the effect that in April and May of 1951 plaintiff had knowledge of all of the matters upon which she now bases her claim. At that time she made allegations substantially as stated in her present petition and reported the alleged fraudulent activities of defendants to the officials of the Federal Reserve Bank of St. Louis; that the affidavits of the officials to whom she complained show that plaintiff reported essentially all of the facts alleged in her present petition; and that it, therefore, conclusively appears that plaintiff then had knowledge of all of the circumstances and facts which she now claims to have been fraudulent, and her claimed cause of action was barred by the statute of limitations when she filed the present action on November 25, 1957. However, in reviewing the record in this case, the rule of deference to the findings of the trial court does not apply, since the record consists of the pleadings and documentary evidence. Kansas City Terminal Railway Co. v. Kansas City Transit, Inc., Mo.Sup., 359 S.W.2d 698.

In support of appellant’s contention that the trial court erred in entering judgment for defendants the appellant insists that she “sought damages for. the conspiracy of the respondents by which she was deprived of her mining property in North Carolina.” She reviews the allegations of her petition and points out that she alleged that the defendants Wintermann “aided and abetted by one Edward C. Schmidt , ■ * * fraudulently and by scheme and device perpetrated acts whereby the said defendants * * * obtained title to said tract of land to the total exclusion of plaintiff * * She then reviews the further allegations of h'er petition, as hereinbefore reviewed, and argues as follows: “The fraud which occurred in the respondent Bank on January 30, 1951 whereby respondent Ewald Winter-mann obtained a half interest in the appellant’s property is not the gravamen of her petition. The essence of the petition is the loss suffered by the appellant through the total deprivation of her ownership and proprietary interests in the mining property resulting from the respondents’ foreclosure pursuant to the alleged conspiracy. The foreclosure, as alleged in the petition, was the culmination of a long series of subterfuges and misrepresentations initiated during the period of the closing transactions and systematically continued by the respondents in the later assignment of the notes by the respondent Bank to respondents Ewald and Edmee Wintermann. By alleging the fact of the respondents’ combination to injure the appellant, the series of fraudulent misrepresentations and transactions of the conspirators, the unlawful end intended by the conspirators, and the damage suffered by the appellant, the petition fairly stated a cause of action for conspiracy to defraud.” Appellant then says that respondents offered no evidence to rebut the allegations of her petition as to respondents’ conspiracy.

Appellant further argues that “since conspiracy to defraud the plaintiff of her North Carolina property is the cause of action alleged in the appellant’s petition, the respondents must show by unquestionable evidence that the appellant knew of the conspiracy alleged or of the acts of the conspirators in furtherance of the conspiracy at a time more than five years prior to the filing of her suit in the court below.” (Italics ours.) Appellant argues that in her complaints to the Federal Reserve officers “there is no hint or suggestion that the appellant then had knowledge of facts or anticipated that the respondents were plotting ultimately to deprive her of her property”; and that there was “no reason why the appellant should have-foreseen that possibility.”

Appellant further argues that regardless of her report and complaints to the'Federal Reserve officers “there was absolutely nothing in the record before the trial court from which it could be inferred that the appellant had discovered the conspiracy of which she now complains”; or that appellant by that time had discovered the acts of the respondents essential to the conspiracy. Appellant also says that at the time of her conferences with the officers of the Federal Reserve Bank she did not know of the assignment of the notes and deed of trust to defendant Wintermann or that such deed of trust had been recorded; and that she made no complaints concerning these events, as they had not occurred at the time of the conferences, and appellant had no knowledge of them at that time. Appellant concludes this argument in support of her first assignment of error by saying that “the pleadings, exhibits and memoranda before the trial court failed to show by unassailable proof that the appellant knew of the respondents’ conspiracy or of the acts of the conspirators in furtherance of the conspiracy * * ⅜ more than five years preceding the filing of her petition in the court below. * * (Italics ours.)

We think the foregoing argument of appellant clearly demonstrates a misunderstanding of the law applicable to her action as instituted in the trial court. In the first place, her action was clearly an action to recover actuál and punitive damages on the ground of fraud. A careful reading of plaintiff’s petition fails to sustain her contention that a conspiracy to defraud was alleged. In Rosen v. Alside, Inc., Mo.Sup., 248 S.W.2d 638, 643, the court said: “A civil conspiracy is an agreement or understanding between two or more persons to db an unlawful act, or to use unlawful means to do an act which is lawful. Shaltupsky v. Brown Shoe Co., 350 Mo. 831, 168 S.W.2d 1083; Seegers v. Marx & Haas Clothing Co., 334 Mo. 632, 66 S.W.2d 526. * * * The gist of the action is not the conspiracy, but the wrong done by acts in furtherance of the conspiracy or concerted design resulting in damage to plaintiff. Shaltupsky v. Brown Shoe Co., supra; Medich v. Stippec, 335 Mo. 796, 73 S.W.2d 998; Seegers v. Marx & Haas Clothing Co., supra; Kansas City v. Rathford, 353 Mo. 1130, 186 S.W.2d 570. * * * Conspiracy does not ordinarily give rise to a civil action unless something is done pursuant to it which, without the conspiracy, would create a right of action against the defendants severally. Shaltupsky v. Brown Shoe Co., supra.” Also see Rippe v. Sutter, Mo.Sup., 292 S.W.2d 86, 89.

While plaintiff’s petition covers ten pages of the transcript and a great many facts are alleged, the petition fails to allege an agreement or understanding or any planned cooperative action among the defendants to defraud the plaintiff; nor does the petition allege facts from which any such agreement or understanding between the defendant bank and the defendant Wintermanns can be inferred. There is further no allegation that the various alleged acts of the several defendants were made pursuant to any such agreement, understanding or common purpose and design. Such allegations are ordinarily essential to charge a conspiracy. Kansas City v. Rathford, supra; Shaltupsky v. Brown Shoe Co., supra; and Rippe v. Sutter, supra. The petition did allege that the defendant bank “aided and abetted” defendants Wintermann but such allegations of the independent action of the various defendants was insufficient to charge a conspiracy absent any allegation as to a common purpose, design or agreement to defraud plaintiff of the specific property.

However, “it is the generally recognized rule that if a plaintiff fails in the proof of conspiracy or concerted design, he may yet recover damages against one or more of defendants shown to be guilty of the wrong without such agreement. In such case the charge of conspiracy may be considered mere surplusage, not necessary to be proved to support the action, and proof of the conspiracy is of value chiefly in permitting plaintiffs to hold one party responsible for the acts of another, * * * for the gist of the action is unlawful injury and not conspiracy.” Medich v. Stippec, supra, 73 S.W.2d 998, 1001 [3-4].

It is apparent that appellant’s contention that the petition charges a conspiracy is inspired chiefly by the fact that the defendant bank and Mrs. Wintermann were not parties to the North Carolina litigation, and the issues decided there are not res adjudicata as to them; and that appellant seeks to hold them for the acts of Ewald L. Wintermann in the foreclosure and sale of the North Carolina property. She insists that the damage there sustained was the last item of damage, which damage was sustained subsequent to January 20, 1956, and within five years prior to the institution of her suit. In this manner she hopes (by Section 516.100) to toll the bar of limitation under Section 516.120 RSMo 1959, V.A.M.S.

However, we have heretofore noted that plaintiff’s reply to the Wintermanns’ amended answer and counterclaim, as the cause was submitted to the court on the motion for summary judgment, contained no denial of the allegations of the Wintermanns that after all pleadings had been filed in the North Carolina suit “the parties, Ewald L. Wintermann and Louise B. Gruenewaelder, agreed that defendant Ewald L. Winter-mann was entitled to foreclose on said real estate and, by stipulation of the parties, the (temporary) restraining order hereinabove referred to was dissolved, and it was agreed by and between the parties that only the monetary demands of the parties would thereafter be in litigation.” (Italics ours.) Nor was there any denial of the Winter-manns’ allegation that the mentioned real estate in North Carolina was “in due course sold at foreclosure to defendant Ewald L. Wintermann.” See Brown & Pounds v. South Joplin Lead & Zinc Mining Co., 231 Mo. 166, 132 S.W. 693, 694.

While the petition, as stated, fails to allege a conspiracy we do not find that fact to be an essential and decisive factor under the record presented in this case, because the plaintiff in her complaints to and in her conversations with the several officers of the Federal Reserve Bank clearly demonstrated that plaintiff at that time well knew of the fraud, if any, practiced upon her. She knew the facts and had drawn her own conclusions from the known facts. These conclusions were that she had been the victim of sharp practices; that there was a lack of good faith on Wintermann’s part in refusing to obtain new funds, except from the defendant bank; that she had been deceived and defrauded by obtaining only a $5,000 worthless check for a one-half interest in her property; that she had been pressured and unfairly dealt with because of her urgency to refinance her indebtedness and to also obtain additional funds; that the representations that a $65,000 loan was to be made by the bank to her and Wintermann jointly was false, since she then knew that it was not a joint loan but a loan to Winter-mann alone and her deed of trust had been given to protect Wintermann and to secure Wintermann’s loan. Her final conclusion was that an improper combination and conspiracy existed between the Wintermanns and the bank.

Her knowledge on May 25, 1951 as to the prior activities of the bank are well summarized in a memorandum of her conversations with the officers of the Federal Reserve Bank and shown by said memorandum (the facts stated therein being now admitted) are, as follows: “More briefly, Mrs. Gruenewaelder’s complaints against Mr. Schmidt appeared to be (1) that, by his advice to Mr. Wintermann, he interfered with sale or loan transactions which would have been favorable to her, (2) that (by so eliminating other sources of cash) he put his bank in a dominant position, so as to be able to require such terms as he chose, (3) that he used this circumstance (allegedly in conspiracy with Mr. Wintermann) to force her to sell one-eighth [sic] of her property interest for $5,000 (whereas it was worth $50,000) and that even this inadequate sum has never been paid, (4) that, while agreeing to extend $65,000 to her and Mr. Wintermann jointly (in return for their notes and deed of trust), he made the funds available to Wintermann’s personal account and (5) that such notes and deed of trust were without consideration to make them binding obligations, inasmuch as the only funds involved were actually advanced independently (a) prior to execution of such notes and deed and (b) in favor of Winter-mann alone, rather than to him and her jointly.”

It clearly appears that appellant’s cause of action for fraud accrued when she acquired knowledge of the facts constituting the alleged fraud. The pleaded statute of limitations (Section 516.120) barred a fraud action filed more than five years after the discovery of the fraud. We think the record presented conclusively shows, as a matter of law, that in 1951 plaintiff well knew of all of the alleged fraudulent acts of the defendants of which she now complains and, in fact, she knew of them within two months after the notes and deed of trust in question were executed and the loan transaction completed. Appellant’s brief further gives support to respondents’ statement that the appellant does not challenge the fact that her cause is governed by the five-year statute of limitations, but seeks to avoid its bar on the theory that she did not discover the conspiracy until later and that all of the damage had not accrued until the foreclosure sale of the property in 1956 or later.

We find no merit in the mentioned theory. While the date when the alleged fraudulent deed of trust was recorded in North Carolina or the date when the alleged fraudulent notes were assigned and delivered by the bank to Wintermann do not clearly appear, yet in 1951 plaintiff knew of the alleged fraud and that the bank held, among its assets, the notes and deed of trust which in 1951 she claimed to be fraudulent and void. Clearly, the record shows that in April and May of 1951 appellant had knowledge of the alleged fraud and she had a cause of action for fraud and, had she so elected, could have brought suit to rescind the transaction, cancel the notes, deed and deed of trust and returned what she had obtained by reason of the transaction. She did not do so but, with full knowledge of the facts, she elected to await the outcome and sue for damages. It cannot be claimed that her cause of action would have accrued, if she had sought rescission, but that it did not accrue because she ratified the action and now seeks damages for her loss. She did not elect to rescind, but now seeks damages and her delay and failure to bring the action within five years after obtaining full knowledge of the fraud bars her action under the applicable statute of limitations. See Ludwig v. Scott, Mo.Sup., 65 S.W.2d 1034, 1035; Bockelman v. Home Investment Co., Mo.Sup., 182 S.W.2d 162, 163.

Appellant’s final assignment of error is based upon the theory that the last item of damage (sustained by appellant pursuant to the conspiracy of the respondents) was sustained at a time more remote than the five-year statutory period governing actions for conspiracy to defraud, and may be recovered under Section 516.100, and hence her action is not barred by Section 516.120. Appellant argues that “practically speaking, her pecuniary loss did not occur until the foreclosure severed her interests and totally divested her of any interest in or control of the property; (that) not until the foreclosure, therefore, did the last item of damage accrue to the appellant (and that) on that date her action for conspiracy to defraud was complete and, since she filed suit on November 25, 1957, her present action was instituted well within the five-year statute of limitations.”

We find no merit in this assignment because appellant, by her pleadings, did not controvert the allegations of respondents’ amended answer and counterclaim to the effect that defendant Ewald L. Wintermann “was entitled to foreclose on said real estate”; and that the property was “in due course sold at foreclosure to defendant Ewald L. Wintermann.” It therefore appears that appellant may not use any loss associated with the foreclosure sale as the last item of damage suffered by reason of the alleged fraud.

We are further of the opinion that Section 516.100 RSMo 1959, V.A.M.S. cannot aid the appellant under the undisputed facts of this case, because of an applicable rule of law well stated in Rippe v. Sutter, supra, 292 S.W.2d 86, 90, as follows: “The general rule, however, is that a statute of limitations begins to run when the cause of action accrues, and that ‘accrual’ occurs at the time when a breach of duty has occurred or wrong sustained as will give the right to the injured party to bring and maintain añ action. The aforequoted statute does not change the general rule that ‘when an injury is complete as a legal injury at the time of the act, the period of limitation will at once commence; [and] if the action is of a nature to be maintained without proof of actual damage, the period of limitation will begin to run from the time the act is done without regard to any actual damage, * * * but * * * when the act which gives the cause of action is not legally injurious until certain consequences occur, then the period of limitation will take date from the consequential injury. * * * the injurious consequences or resulting damages which bring about the accrual of the cause of action are the indispensable elements of the injury itself, and not mere aggravating circumstances enhancing a legal injury already inflicted, * * * and * * the resulting damage is sustained and is capable of ascertainment within the contemplation of the statute whenever it is such that it can be discovered or made known.’ Allison v. Missouri Power & Light Co., Mo.App., 59 S.W.2d 771, 773.”

Under the admitted facts shown by this record, plaintiff’s action was, as a matter of law, barred by the statute of limitations and the court did not err in entering the summary judgment complained of.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Dennis COX, By Rudolph Cox, His Next Friend, Appellant, v. Roy GROS, d/b/a Gros Marble Company, Respondent.
    No. 49136.
    Supreme Court of Missouri, Division No. 2.
    Sept. 10, 1962.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 8, 1962.
    Chopin, Boisaubin & Corley, Alfred L. Boisaubin, St. Louis, for appellant.
    Alexander & Robertson, L. A. Robertson, Ernest E. Baker, St. Louis, for respondent.
   BARRETT, Commissioner.

This is an action to recover $35,000 damages for personal injuries sustained by Dennis Cox, age five. The trial court sustained a motion to dismiss the plaintiff’s petition and the question upon this appeal is whether the petition states a claim upon which relief could be granted.

In general the petition alleges that the defendant Gros owned and operated a business at 3009-3011 Missouri Avenue known as Gros Marble Company and that on July 10, 1959, Dennis was injured “on a piece of cut, sharp, pointed and jagged marble, created and maintained by defendant.” While the plaintiff asserts that he was a “gratuitous licensee” (2 Restatement, Torts, Sec. 331; 2 Harper & James, Torts, Sec. 27.8, p. 1470) on the defendant’s property, he admits that the case stated in his amended petition does not state a claim upon which relief could be granted under the “hard-by” rule (2 Restatement, Torts, Sec. 369), for example, broken glass on an unauthorized private dump hard-by public alleys and lanes. Wells v. Henry W. Kuhs Realty Co., (Mo.) 269 S.W.2d 761, 47 A.L.R.2d 1038. The Wells case, incidentally, is annotated under the heading “Liability of landowner for injury or death of child caused by cut or puncture from broken glass or other sharp object” in 47 A.L.R.2d 1048. The annotation does not emphasize the “hard-by” rule or section 369 of the restatement, the cases are treated without an attempt “to separate them on the basis of factual or legal distinctions. All the cases involve actions based on negligence, with its concomitant aspects of duty of care, proximate cause and contributory negligence.” Furthermore, it is conceded that his case does not fall within explosives and the inherently dangerous substance doctrine (annotation 10 A.L.R.2d 22), for example, dynamite caps abandoned at an unguarded place easily accessible to children (Boyer v. Guidicy Marble, Terrazzo & Tile Co., (Mo.) 246 S.W.2d 742) or oleum spirits left near a trash fire at an apartment house construction project. Paisley v. Liebowits, (Mo.) 347 S.W.2d 178. In the latter case attention was specifically called to the fact that the basis of the landowner’s liability in the dangerous explosive cases was “ ‘not an extension of the “attractive nuisance” doctrine. It may involve some of the basic considerations which prompted the “attractive nuisance” doctrine, but it is, nevertheless, a rule independent of the “attractive nuisance” doctrine.’ ” 347 S.W.2d, l. c. 183.

It is in this manner that the plaintiff’s appeal is presented; while the rules are noted and stated it is admitted that the case does not come within the hard-by rule or the dangerous substance rule, at the same time it is pointed out that those rules are exceptions to the doctrine of nonliability for injuries to trespassers and licensees under the rule that a property owner owes no duty to such persons to use reasonable care to keep his land in a reasonably safe condition for them and no duty to carry on his activities so as not to endanger them (Paisley v. Liebowits, supra; 2 Restatement, Torts, Sec. 333) and, despite the differences and distinctions, it is argued that this case does and should fall within still another and further exception to the doctrine of nonlia-bility. In this connection, in view of certain Missouri cases, there may be a serious inconsistency in the appellant’s position. As to another exception to the rule of non-liability, the attractive nuisance doctrine, the appellant admits that the case does not fall within that doctrine: “This plaintiff did not plead that the thing (marble) that caused his injury was the thing that attracted him onto defendant’s premises, so that exception would not be applicable here.” It is then admitted that this court has declined to adopt the views of sections 342 and 345 of the restatement — liability for known dangerous conditions to gratuitous licensees — but says that Anderson v. Cinnamon, 365 Mo. 304, 282 S.W.2d 445, 55 A.L.R.2d 516, and McVicar v. W. R. Arthur & Co., (Mo.) 312 S.W.2d 805 (annotated in 65 A.L.R.2d 798 under the title “Liability of owner or operator to adult trespasser in or on motor vehicle or equipment”) recognized, at least by dictum, the applicability of sections 334, 335 and 336 of the restatement (artificial conditions highly dangerous to constant trespassers upon a limited area) and urges that these rules should be extended to also include section 339 of the restatement and include and cover this case.

Section 339 has to do with the possessor of land and “harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land,” under four specified conditions. 2 Restatement, Torts, Sec. 339; Doren v. Northwestern Baptist Hospital Association, 240 Minn. 181, 60 N.W.2d 361, 42 A.L.R.2d 921. The Minnesota case, incidentally, is annotated under the heading “Liability for injury to or death of child from burns caused by hot ashes, cinders, or other hot waste material.” In that annotation it was said that liability turned on “general principles of negligence law> as modified in the case of children.” 42 A.L.R.2d, l. c. 932. And in 1953 six states imposed liability on that theory and thirteen states, including Missouri, were said to reject it and only the Minnesota case mentioned section 339 of the restatement. In 44 A.L.R.2d 1253 and 64 A.L.R.2d 922, there are annotations bn the subjects of children and buildings under construction or being demolished and it is there pointed out that in only “one instance (Minnesota) liability was imposed on a contractor under the doctrine of § 339 of the Restatement of Torts, a rule closely related to, and sometimes equated with, the attractive nuisance doctrine’’ (emphasis supplied). 44 A.L.R.2d l. c. 1254. In 145 A.L.R. 322 there is an annotation “Liability, under attractive nui-sanee doctrine or related principle, for injury to children jumping or falling from nondefective and stationary object or structure reached by climbing.” It is there pointed out that there is no liability under either the attractive nuisance doctrine or “a kindred principle,” section 339 of the restatement, “for an injury to a trespassing child who climbs upon and jumps or falls from a nondefective and stationary structure, at least where the structure is useful and properly located.” 145 A.L.R., l. c. 323. Harper, James and Prosser are all of the view, apparently, that the basis of liability under section 339 of the restatement is not alone the attractive nuisance doctrine, but “the more flexible test of negligence which would balance these competing interests (the landowner’s and the child’s) on a case to case basis” and the four elements set forth in the restatement. 2 Harper & James, Torts, Sec. 27.5, pp. 1450-1460; Prosser, Torts, Sec. 76, p. 440.

Now, to return to the appellant’s inconsistency and perhaps his insuperable difficulty. Whatever section 339 of the restatement may mean, in 1939 in Hull v. Gillioz, 344 Mo. 1227, 1234-1235, 130 S.W.2d 623, 627, in State ex rel. W. E. Callahan Const. Co. v. Hughes, 348 Mo. 1209, 159 S.W.2d 251, and in 1956 in Patterson v. Gibson, (Mo.) 287 S.W.2d 853, 854-856, it was said that section 339 was a restatement of the attractive nuisance doctrine but that “this court has been unwilling to extend the doctrine as far as the rules adopted by the Restatement would extend it.” In those cases several items, conditions and circumstances were listed to which it was said the attractive nuisance doctrine was not applicable and it was pointed out that our cases further “limit the doctrine to situations where children’s trespasses are due to the attractions of a dangerous instrumentality or condition, instead of applying it to conditions and instrumentalities that children could not see or know about without first becoming trespassers; and, second, they limit the doctrine to instrumentalities and conditions which are inherently dangerous instead of applying it to conditions in which danger has been created by mere casual negligence under particular circumstances.” 344 Mo., loc. cit. 1235, 130 S.W.2d, loc. cit. 627. In Hull v. Gillioz a stack of 43-foot “I” beams, some of which teetered or rocked, on an unfenced lot on Main Street in Monett was held to be inherently dangerous and under proof of knowledge of children playing on them it was held that plaintiff, age 8, “made a jury case under the attractive nuisance doctrine as restricted by decisions of this court.” In the Callahan Construction Co. case it was held that the attractive nuisance doctrine as limited by the Hull case was not applicable to a cooper’s bucket left at an easily accessible, unguarded quarry. In Patterson v. Gibson, it was held that the doctrine was not applicable to a “bridge” of loose overlapping boards across a ditch or moat around the foundation of a building under construction and a boy five years old. It was there held that the boards were not inherently dangerous and that there could be no recovery under section 339 of the restatement or the attractive nuisance doctrine as delimited by Hull v. Gillioz. The fact of these cases alone is probably sufficient to dispose of this appeal. See also Emery v. Thompson, 347 Mo. 494, 148 S.W.2d 479; Lentz v. Schuerman Building & Realty Co., 359 Mo. 103, 220 S.W.2d 58; Holifield v. Wigdor, 361 Mo. 636, 235 S.W.2d 564, and annotation 28 A.L.R.2d 218, “Liability of landowner for injury to or death of a child resulting from piled or stacked lumber or other building materials.” In Emery v. Thompson, supra, to illustrate, it was held that a stack of ties on the railroad right of way adjacent to a public road and near residences was not inherently dangerous. Furthermore, it was held that the attractive nuisance doctrine was not applicable to the stack of ties and to children, including the plaintiff, age 5, playing on them.

In addition to the analogies and principles of these cases, it is not alleged here how or in what manner this plaintiff, then age five, got on the defendant’s premises or how he was injured; the petition simply alleges that the defendant owned, operated and possessed the premises and that on July 10, 1959, the plaintiff “was injured on a piece of cut, sharp, pointed and jagged marble, created and maintained by defendant,” (the piece of marble is not otherwise described). It is alleged that as a result of the defendant’s negligence in that defendant knew or should have known (1) that young children habitually frequented the premises, (2) that the premises involved an unreasonable risk of bodily harm to children, (3) that because of their youth children could not discover the condition or realize the risk involved, and, finally, that defendant failed to exercise ordinary care to make the condition reasonably safe, “or to warn plaintiff” or to fence the premises but habitually permitted children to frequent and play on the premises, plaintiff was injured. It is also alleged that the defendant was negligent in maintaining such condition out of doors and that the utility to the defendant of maintaining the condition was slight as compared to the risk of injury to children. Abstractly these allegations may follow or invoke section 339 of the restatement, but if these are the only facts and circumstances available to the plaintiff, they do not state a claim upon which relief could be granted, they do not hypothesize a state of facts from which the inference of negligence is permissible, and hence liability, on any theory now recognized in this jurisdiction.

For the reasons indicated the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

PER CURIAM.

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Glendel W. THOMAS, Appellant.
    No. 48806.
    Supreme Court of Missouri, Division No. 2.
    Sept. 10, 1962.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 8, 1962.

      William B. Spaun, Hannibal, for appellant.
    Thomas F. Eagleton, Atty. Gen., James W. Steele, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   EAGER, Presiding Judge.

Defendant was charged by information, supposedly in two counts, with second degree burglary and stealing. Further reference will be made to the information later. The jury found defendant guilty of both burglary and stealing and fixed his punishment at imprisonment for two years on each charge. After an unsuccessful motion for a new trial, defendant appealed. It will not be necessary to relate the facts in any great detail, since no point is made in defendant’s brief on the sufficiency of the evidence. The case was tried in Marion County on change of venue from Ralls County.

Defendant and two companions were arrested in Hannibal in defendant’s 1955 Ford panel truck at 2:15 a. m. on August 29, 1960. They were taken to jail and defendant was booked as a burglary suspect. He then had $79.27 in his possession which, by his testimony, he accounted for. He testified that the title to the vehicle was carried in his wife’s maiden name, because of certain complications which are immaterial here. The evidence showed that one of defendant’s companions had a record of several arrests in Hannibal. The truck was parked by the police on the street about 12 feet south of the main front door of the police station and in a well lighted area, but in a position where it was not constantly observed by the one officer on duty inside at night. It was not locked and could not be locked. It was not searched at the time.

At approximately 7:30 a. m. on the same morning it was discovered that both the office building and warehouse (a quonset hut type metal building) of the Ralls County Electric Co-Operative just south of New London had been broken into. The lock on the back door of the office building had been forced open by prying with some type of flat instrument, leaving distinct marks on the door facing, and a window glass in the warehouse had been broken so that the window might be unlocked and opened. These were separate buildings, about 50 feet apart. In the office the combination had been beaten from the vault door, and that door had been opened; a hole had been partially beaten or dug through a plaster and block wall of the vault. Papers in the vault were strewn on the floor and approximately $60 in money was missing. From the warehouse several tools were missing, including a one-quarter inch Thor electric drill, a pipe wrench, a sledge hammer and a tire tool. The drill was valued at $10.

A State Patrolman who investigated the burglary testified that he found three “paths” beaten down through a bean field back of the Co-Op premises and leading to a gravel road; also, that at the road he found a place where a car had entered the field through beans and high weeds and had turned around. There was also evidence that various weeds were found on or under the bumpers and fenders and on the underside of defendant’s truck, and that there were greenish stains, like weed stains, on defendant’s socks. Defendant admittedly gave written permission for the search of the truck and the Chief of Police and State Trooper searched it at about 10:00 a. m. the same morning. They found in it, and marked, an electric drill (one-quarter inch Thor), a sledge hammer, an iron bar (apparently a car axle), a tire tool, a screw driver, a cold chisel, a two-cell rubber flashlight and three pairs of assorted gloves. All of these items were offered and received in evidence. The drill so produced was positively identified as the one taken from the warehouse; the sledge was said to be “similar” to the one which was missing. There was gray paint on the end of the iron bar and at points on the head of the sledge which, upon laboratory examination, was said to be “similar” to the gray paint in the office and on the vault.

The defendant testified that the tools found in the truck were his (except the electric drill), and that he had used the iron bar and sledge in tearing down a building and parts of another in Illinois shortly before August 29, 1960; also, that these buildings were painted a gray color, similar to the paint found on these tools. He further testified that he owned an electric drill of a different make, longer and more shiny, and that it was in the truck when he was arrested, but that the one produced at the trial was not his. He denied even being in the vicinity of the crime, and testified to the supposed purpose or purposes in driving to Quincy, thence to Canton and to Hannibal on the night and early morning in question; the latter testimony, convincing or otherwise, is immaterial here.

Defendant’s first point here is that the information is defective. It sought, in two counts (although only the second was described as a count) to charge defendant (1) with stealing, and (2) with burglary, presumably in the second degree under Section 560.070, RSMo 1959, V.A.M.S. Counsel has furnished us with rather slight explanation of his attack on the information, but we would consider it independently under Rule 28.02, V.A.M.R. We have determined that the first count states the essentials of a charge of stealing over $50 under §§ 560.156 and 560.161, independent of the burglary charge. It alleges that defendant did, with “criminal intent, wilfully, * * * unlawfully * * * feloniously, * * * steal and appropriate by exercising dominion over property in a manner inconsistent with the rights of the owner by taking, obtaining, transferring and retaining possession of property belonging to the Ralls County Electric Cooperative having the following values: Cash money $60.00, 1/2" Electric Thor Drill, $10.00.” Such property was certainly within the definition stated in § 560.156(1), and the stealing of that property subjected the defendant to imprisonment in the penitentiary as for a felony under § 560.161(2).

We find the count alleging burglary to be insufficient. It is, in its entirety, as follows : “COUNT 2. did then and there, with specific criminal intent, wilfully, intentionally, unlawfully, deliberately, feloniously, and on purpose break and enter into two separate buildings owned by and used for storage and office space by the Ralls County Electric Cooperative with intent to steal therefrom, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the State of Missouri.” Even giving to the State the benefit of certain formal allegations appearing at the beginning of the first count, it is immediately apparent that the second count omits entirely the requirement of § 560.070 that there must be the breaking and entering of a building, etc. (not being such as is declared to be first degree burglary, § 560.040), “in which there shall be at the time any human being or any goods, wares, merchandise or other valuable thing kept or deposited, with the intent to steal * *.” Sections 560.045-560.065 deal with second degree burglary of a dwelling house, with which we are not concerned here. It was not claimed here that “any human being” was in either of the buildings in question at the time of the breaking; it was essential therefore to allege as to any such building, either in so many words or in substance, that “goods, wares, merchandise or other valuable thing” were “kept or deposited therein.” State v. Moten, 276 Mo. 354, 207 S.W. 768. The information in that case was considerably better than ours, for it was alleged that defendant stole certain described property “in the said store, shop and building then and there found”; still, the information was held fatally defective. We do not need to go that far here. There is no allegation here in either count that the $60 or the electric drill, or any other goods, wares, merchandise or property was kept or deposited in either of the buildings in question, or even that the stealing was from either of the buildings. We are dealing with a statutory crime and, while we are always loath to reverse upon points which may appear to be technical or nonsubstantive, we are duty bound to do so where a charge omits an essential element of the statutory definition of a crime. The omission here was of an element which, in effect, fixed the type of building which might be so burglarized; and we may not extend the scope of the statute. Respondent says that we may look to the first count (essentially such but not so numbered or described) which “stated that certain items and money were taken from buildings of the REA, thus adequately informing defendant of the charges.” We have looked and there is no such allegation, even if we should consider that count as supplementing Count Two, contrary to the injunctions of State v. Moten, supra, which hold that each charge must be separate and complete within itself, “barring mere formal allegations.” In the first count, as already indicated, it was merely alleged (in appropriate language) that defendant stole certain property “belonging to the Ralls County Electric Cooperative.” The location of the property at the time is nowhere stated. It might have been taken from a truck, from a street, from a field, or from almost any other conceivable place, in so far as the information goes. The first count is of no help in this connection, and counsel’s statement is in error.

The Moten case has been noted in subsequent cases and, so far as we have found, it still represents the Missouri law on this subject. See, State v. Linders, 299 Mo. 671, 253 S.W. 716, 719; State v. Miller, 359 Mo. 327, 221 S.W.2d 724, 725. The requirement of such an allegation as was omitted here was again recognized in State v. North, 337 Mo. 470, 85 S.W.2d 46, where the language used was held sufficient. The substance of the statutory requirements for second degree burglary is clearly and concisely stated in State v. Ruffin, Mo., 286 S.W.2d 743, 745, 746, and in State v. Parks, Mo., 336 S.W.2d 369, 370.

Defendant also complains that the burglary information is duplicitous in that it charges the burglary of two separate buildings, as indeed it does. Respondent merely asserts that this did not constitute two separate charges. While we are not required to rule on this, having already held that part of the information to be fatally defective, it does appear that this information, charging the burglary of “two separate buildings,” charges two separate offenses in one count; this may not be done except where specifically authorized by statute (as in § 560.110). State v. Kellmann, 343 Mo. 762, 123 S.W.2d 70, 72. And see, in principle, State v. Huffman, 136 Mo. 58, 37 S.W. 797. Generally, offenses maybe jointly charged if they “ ‘arose out of the same transaction, and are so far cognate as that an acquittal or a conviction of one would be a bar to a trial for the other.’ ” State v. Talley, Mo., 12 S.W.2d 28; and, an information may properly charge the employment of different methods in the accomplishment of a crime, such as an assault. State v. Nieuhaus, 217 Mo. 332, 117 S.W. 73; State v. Ivy, Mo., 192 S.W. 737. Such is not the case here, for the burglary of each building, though one crime may immediately follow the other, is a separate offense. If new charges are to be filed, this should be corrected. We do not decide here whether it was necessary to attack the information on this ground by motion. State v. Sherman, 137 Mo.App. 70, 119 S.W. 479.

The jury, by its verdict, found the defendant guilty of both burglary and stealing, separately, “as charged in the information” and fixed separate punishments. The court had given Instruction No. 4, setting out the requirements of the offense of stealing property of the value of at least $50, instructing the jury that it might find defendant guilty or not guilty of this charge, if it found him not guilty of burglary. It is true that the jury purportedly found him guilty of burglary, but there could be no such valid verdict or judgment because of the absence of a valid information. Consequently, the situation is in substance the same as if there had been a verdict of not guilty on the burglary, and Instruction No. 4 furnished a suffi<'; mt basis for the verdict of guilt in stealing.

We now note defendant’s contentions of certain trial errors. Counsel complains of the admission in evidence of the electric drill and the various tools. The only such exhibit complained of in the motion for new trial was the electric drill. Indeed defendant affirmatively claimed and testified that he had previously owned the other tools produced, or substantially all of them. There was no objection when the drill was first identified, offered and received in evidence. That, in itself, is fatal to any complaint now. The objection which counsel sought later to preserve as to the tools, generally, was that the truck had been left parked, unlocked and with a window open, from 2:00 a. m. to 10:00 a. m., not under the control of or in the possession of defendant, and not under constant observation by the police. The inference sought to be thus drawn was that it may have been tampered with and that things found in it had no necessary connection with the defendant. On the merits this question goes to the weight of the evidence and not primarily to its admissibility; certainly, in the court’s discretion, it was entirely proper to admit the drill (and the other tools) in evidence, subject to defendant’s explanations. So far as the question of search was concerned, defendant had executed a written consent.

A point is made that Instruction No. 2, submitting the crime of burglary of the “building or buildings,” — “does not follow the language of the Information, and that there is therefore no valid charge upon which said Instruction could be founded.” Since we have held the burglary information bad, it would be useless to rule on the instruction. In this instruction the State supplied the element missing from the information, but we note that it contains, in slightly different form, the element of duplicity already discussed.

The complaint of Instruction No. 10 on circumstantial evidence is merely that it “requires a lesser degree of proof, than if direct evidence was involved.” This assignment, if sufficient under our Rule 83.05(e), was not properly preserved in the motion for a new trial where defendant merely made a generalized complaint of eleven instructions in one assignment. See, generally, State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 309; State v. Swindell, Mo., 271 S.W.2d 533; State v. Turner, Mo., 320 S.W.2d 579.

The last point made here is that the trial court erred in failing to discharge the jury when the Hannibal Chief of Police was on the stand, and thereafter. The witness was asked, on redirect examination, “Why did you order them held in jail?” He answered: “Their names have been in all law enforcement bulletins through the area. They all have lengthy records.” The complete answer to the present contention is that defense counsel merely objected, after the answer was made and with no reason specified, and moved that the answer be stricken; the court sustained the objection, ordered the answer “stricken from the record,” and further told the jury that it would “disregard that last statement, please.” The court actually gave more relief than was requested and it may not now be convicted of error. In the same point counsel, also complains of the attempt of the prosecutor, in cross-examination of the defendant, to inject the matter of arrests of the defendant. The court sustained every objection which was made to those questions, admonished the jury, upon request, to disregard one such question, and in connection with a different question dealing with a fine for a supposed peace disturbance charge, said: “I think you should limit yourself to specific times with reference to either pleas of guilty or convictions, and not arrests, for such matters go only to the question of credibility and not to the guilt or innocence in this particular case.” No error is demonstrated on this point. It would be useless to consider those cases where motions to discharge the jury for improper conduct of the prosecutor were promptly made. We do not imply, however, that the situation here was such that the trial court should necessarily have granted a mistrial, even had such a motion been made. It is allowed a wide discretion in such circumstances. This was not such a situation as would require the court to grant a mistrial without motion. See the discussion in State v. Laster, Banc, 365 Mo. 1076, 293 S.W.2d 300, 305, certiorari denied Laster v. State, 352 U.S. 936, 77 S.Ct. 237, 1 L.Ed.2d 167.

So far as concerns the conviction for stealing, we find no error in those parts of the record which we examine under Rule 28.02, independently of assignments in a motion for new trial. Sentences were imposed separately, after allocution was granted, for burglary and for stealing, with the terms to run consecutively. That part of the judgment and sentence dealing with stealing is affirmed; that part dealing with burglary, which we deem to be void, is reversed and the cause remanded with reference thereto.

It is so ordered.

All of the Judges concur.

      . To which revision all statutory references will be made.


author: BOHLING, Commissioner.

text:
    B. F. FLANIGAN and Lela H. Flanigan, Husband and Wife, Earl C. Hatfield and Earleene Hatfield, Husband and Wife, Charles Hutchinson and Ruth V. Hutchinson, Husband and Wife, Dwight P. Hutchinson and Bessie M. Hutchinson, Husband and Wife, John M. Jackson and Vivian M. Jackson, Husband and Wife, Dan R. Rader and Betty Rader, Husband and Wife, Dale Sissel and Virgie Sissel, Husband and Wife, Emerson Taylor and Helen M. Taylor, Husband and Wife, Junior R. Yenicheck and Hazel J. Yenicheck, Husband and Wife, Respondents, v. The CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Appellant.
    No. 49007.
    Supreme Court of Missouri, Division No. 2.
    Sept. 10, 1962.
    Motion to Transfer to Court En Banc Denied Oct. 8, 1962.

      John B. Newberry, Springfield, for appellant.
    Chinn, White & Dickey, Springfield, for respondents.
   BOHLING, Commissioner.

This is an appeal by the City of Springfield, Missouri, defendant in nine actions, each instituted by a husband and wife, seeking damages for alleged nuisance created by the defendant in the operation of a sewage disposal plant. A change of venue was granted the plaintiffs in each case to Webster County from Greene County. The material allegations of each petition, in three counts, were substantially the same. The first count was for temporary nuisance; the second count, for permanent nuisance; and the third count was for in-junctive relief. The nine cases were consolidated for trial by order of the trial court. The cases went to the jury on the theory of temporary nuisance, Counts II and III being voluntarily dismissed. The trial resulted in a judgment for $4,000 for the respective plaintiffs in each case, entered upon nine separate jury verdicts for said amount in the consolidated trial. The aggregate amount in dispute, exclusive of costs, on this appeal in the consolidated cases exceeds $15,000 and vests appellate jurisdiction in this court. Kitchen v. City of Clinton, 320 Mo. 569, 8 S.W.2d 602[1].

Plaintiffs claimed damages for foul and noxious odors conveyed by air currents across their respective lands from defendant’s sewage plant known as the Southwest Disposal Plant.

In 1955 defendant City was authorized to issue bonds in excess of $9,000,000 for the purpose of rehabilitating its sewer system and constructing sewage disposal plants. Thereafter, it acquired 40 acres of land and constructed thereon at a cost of approximately $3,300,000 its Southwest Disposal Plant, an activated sludge treatment plant, also incorporating therein what is known as the Kraus process, for the purpose of disposing of certain sewage from defendant City. Defendant began partial treatment of sewage in December, 1959, and went into essentially full operation in January, 1960, at its said plant. Plaintiffs .reside in a farming community in the vicinity of said plant. Prior to 1960 that area was free from all disagreeable and noxious odors. In March or April, 1960, within sixty to ninety days after said plant started full operations, disagreeable and noxious odors became noticeable by plaintiffs. Plaintiffs established that these odors came from defendant’s Southwest Disposal Plant and their intensity and noxiousness depended somewhat but not entirely upon the air currents around the plant. These odors were almost constant and got progressively worse “for quite some length of time.” Their intensity and noxiousness started to subside in the Summer, were not so noticeable in the Fall of 1960, but were again noticeable about the first of the year and again about the time of trial — March 27, 1961.

Allen Mayfield, sanitary engineer in charge of the sanitary sewer system of defendant, testified that the Southwest Disposal Plant was designed to give complete treatment to sewage. The jury could find from his testimony that the operation of the plant produced methane, carbon dioxide, some hydrogen sulphide and other gases; that they were doing just what they could in the operation of the plant for several months; that is, “operate it by guess and by gosh because certain of the control features were not operating correctly”; that any sewage plant can get into “a temporary upset,” but, barring that, under normal operation at the time of trial the plant should be “substantially odor-free” and one would “very definitely” have to get over on the plant property (the 40 acres) to detect the odor; and, as a witness for defendant, that they had an odor problem in the Spring and Summer of 1960.

A chemist, plaintiffs’ witness, testified that decomposing sewage produces methane, carbon dioxide, hydrogen sulphide, ammonia and other gases; that hydrogen sulphide has a very distinctive odor, that of rotten eggs, is easily recognized, will cause boards painted with white lead paint to turn to a gray or darker color, in slight concentration is fatal, and the smell is nauseating. This witness identified the contents of a bottle, plaintiffs’ Exhibit 1, upon smelling it, as hydrogen sulphide.

Several plaintiffs testified the odor from defendant’s Southwest Disposal Plant was the same as or similar to the odor from plaintiffs’ Exhibit 1, the odor of rotten eggs or of an outdoor toilet.

Plaintiffs’ witness Dr. Thomas M. Mac-Donnell testified that hydrogen sulphide in concentration sufficient to discolor white lead paint on houses is sufficient to cause injury and discomfort to body tissues, irritate mucous membranes, and cause headaches, lassitude and nausea in warm weather.

The different plaintiffs testified as to the manner in which each was affected by the vaporous discharge from defendant’s Southwest Disposal Plant. It turned white lead paint on some of the houses to a grayish or dark brown. This could be washed off. Although they kept their houses closed, they could not free themselves of the odor. Some would drive away from home to be rid of it. The odor was such that plaintiffs lost sleep and rest at night. It destroyed their appetites and made it unpleasant to eat their meals, made it embarrassing for them to have company, or to attend church. The odor was described as most nauseating, making plaintiffs sick at the stomach. It caused burning sensations in the mucous membranes of the eyes, nostrils and throat. There was testimony from one or two witnesses that they would wake at night with a scum on their lips, and from one that it could be tasted.

Consoer-Townsend & Associates of Chicago, Illinois, was the consulting engineering firm in charge of the Springfield sewage improvement project. That firm made a complete survey of the City of Springfield with respect to its sewage problem, designed the Southwest Disposal Plant, prepared the drawings and specifications therefor, and supervised its construction. Leo Rehm was the “general partner” of Con-soer-Townsend in charge of this project, and James Moneyhan, another Consoer-Townsend associate, assisted Mr. Rehm. There was testimony from Mr. Rehm and other witnesses for the defendant that all of the scientific appliances which were available and reasonably practicable to avoid a nuisance were incorporated in said plant. Mr. Rehm testified that Mr. Money-han participated in meetings before the public generally at the city council prior to the approval of the bond issue for the sewage improvement project in 1955, and “came right out” and stated that a sewage disposal plant of the type of defendant’s Southwest Disposal Plant “that is well operated and well maintained shouldn’t have an odor away from the immediate vicinity of the structure,” meaning thereby away from the plant site; that is, the 40-acre tract on which the plant is located. There was other corroborating testimony as to Mr. Moneyhan’s statements at public meetings before the city council. Mr. Rehm testified it was not unusual during the initial stages of operation of a sewage treatment plant to have odors of a temporary nature, but such odors should not have extended off the 40-acre plant site.

Appellant’s first point is: “The Respondents did not offer any evidence to show that the defendant failed to use all the scientific appliances which were available and reasonably practicable to abate the nuisance”; and the court erred in not sustaining appellant’s motion for a directed verdict at the close of all the evidence.

In Stewart v. City of Springfield (1942), 350 Mo. 234, 165 S.W.2d 626, 631, adopting the rulings in Riggs v. City of Springfield (1939), 344 Mo. 420, 126 S.W.2d 1144, 1153, 122 A.L.R. 1496, cases cited by defendant, we considered, as theretofore, a municipal sewer system, “because of the inherent nature of the operation” (Newman v. City of El Dorado Springs, infra), to be a permanent nuisance; that all damages, past and future (Stewart, supra, 165 S.W.2d loc. cit. 628), sustained by a riparian landowner had to be recovered in one action under the law of eminent domain (165 S.W.2d loc. cit. 630), the cause of action being subject to the statute of limitations (165 S.W.2d, loc. cit. 631). Court en banc further stated in the Stewart case, supra: “If a sewer system were to be constructed today, with modern and efficient equipment available for purifying the sewage, a different rule might probably apply.”

In affirming a recovery for the maintenance of a temporary and abatable nuisance arising from the operation of a municipal sewer system, the Springfield Court of Appeals in Newman v. City of El Dorado Springs (1956), Mo.App., 292 S.W.2d 314, 318, made the following observations, with respect to the effluent from a municipal sewer system into a water course being necessarily a permanent nuisance at the time of the Stewart, supra, and earlier cases, and holding: “There were then no means and methods for the elimination and disposal of obnoxious solids, liquids and gases. With the advance of science, however, such is no longer the case and the employment of modern mechanical and chemical processes makes it possible to eliminate the greater part of what was, in the days of our fathers, a natural, fixed and necessary consequence of the operation of a municipal sewer. Having regard to present day sewer construction, it should not be said (as an all-inclusive statement) that the inevitable, necessary and inherent result is a nuisance to the land below, except the lands in the vicinity thereof and such as will, in reasonable contemplation, be permanently affected by it.” An application by the city to transfer the Newman case was denied by this court on September 10, 1956, in Case No. 45,854.

Later, that court in Hillhouse v. City of Aurora (1958), Mo.App., 316 S.W.2d 883, 887, approved and followed the Newman case, supra, and stated (loc. cit. 888 [3]): “Where riparian landowners seek to treat as temporary and abatable the damage resulting from operation of a permanent municipal sewer system * * *, and where the temporary and abatable character of the nuisance and resulting damage is not conceded expressly or in necessary effect (contrast the Newman case, supra), we think that recovery by the landowners, as for damage resulting from a temporary and abatable nuisance, should be permitted only upon evidence from which the triers of the facts fairly and reasonably may infer, and actually do find, that it would have been both scientifically possible and reasonably practicable for the offending municipality to have abated the nuisance when the landowners’ cause of action accrued.”

The case at bar was tried under the law quoted from the Hillhouse case, supra; that is, whether at the time said Southwest Disposal Plant began operation it was scientifically possible and reasonably practicable for defendant to have so operated said plant that foul and noxious odors would not have escaped therefrom.

Any error in overruling defendant’s motion for a directed verdict at the close of plaintiffs’ evidence was waived when defendant offered evidence in its own behalf. Daniels v. Smith, Mo., 323 S.W.2d 705[1],

Whether plaintiff made a submissi-ble case is determined in the appellate court upon a review of the facts established by the probative evidence in the whole case and the legitimate inferences arising therefrom in the light most favorable to the plaintiff, disregarding defendant’s evidence conflicting therewith. Clark v. City of Springfield, Mo.App., 241 S.W.2d 100, 104[3]; Giudicy v. Giudicy Marble, etc., Co., Mo., 329 S.W.2d 664, 665[1]; Daniels v. Smith, supra 705[2].

Shelley v. Ozark Pipe Line Corp., 327 Mo. 238, 37 S.W.2d 518, 519[1], 75 A.L.R. 316, states: “ ‘A temporary nuisance, as distinguished from a permanent one, may be said to be one which can be abated.’ ”

Defendant’s witnesses established that the known scientific appliances which were available and reasonably practicable had been incorporated in defendant’s Southwest Disposal Plant. They also testified it had been represented at public meetings before the city council prior to the construction of the plant, that when well operated and maintained the plant would not cause an odor problem away from the 40-acre plant site; that during the initial stages of operation it would not be unusual to have odors of a “temporary nature”; and that normally there should have been no odors off the 40-acre plant site.

The city sanitary engineer, Mr. Mayfield, testifying for defendant, stated an odor problem existed at the plant in the Spring and early Summer of 1960; and, on the stand for plaintiffs, testified that when operated in accordance with its design and barring a “temporary upset,” the plant should be substantially odor-free and, “very definitely” one would have to be on the plant site to detect the odor; and also that they had been operating the plant for several months “by guess and by gosh because certain of the control features were not operating correctly.”

“ ‘A jury may believe all of the testimony of any witness or none of it, or may accept it in part and reject it in part; just as the jury finds it to be true or false when considered in relation to the other testimony and the facts and circumstances in a case.’ ” Wilhoit v. Fite, Mo., 341 S.W.2d 806, 816 [15], Williams v. Ricklemann, Mo., 292 S.W.2d 276, 280[4, 5].

In these circumstances we conclude it was a jury question whether it was scientifically possible and reasonably practicable for defendant to have so operated its plant that foul and noxious odors would not have escaped therefrom.

The jury, as stated, returned verdicts of $4,000 for each of the nine sets of plaintiffs; and defendant claims error in its brief on the ground that the different sets of plaintiffs testified to “differing damages and even though it is apparent from the record that the plaintiffs, due to geographical considerations, could not have been damaged in the same amounts and that the verdicts of the jury were based upon conjecture and speculation.” The ground alleged in the last clause of the foregoing quotation was not presented to the trial court in defendant’s motion for new trial. See Civil Rules 79.03 and 83.13(a), V.A.M.R.; Section 512.160(1), RSMo 1959, V.A.M.S.; Mayor v. Mayor, Mo., 349 S.W.2d 60[2, 5]; Wright v. Ickenroth, Mo.App., 215 S.W.2d 43[1].

We are referred to and find no case directly on the issue presented. Defendant cites McGuire v. Southwestern Greyhound Lines, Inc., Mo.App., 291 S.W.2d 621, 623, and Smith v. Rodick, Mo.App., 286 S.W.2d 73, 76[4-6], In McGuire, a tort action, plaintiffs sued and recovered judgment against two defendants, S and B. B cross-claimed against S. Plaintiffs’ recovery against B was predicated on the contributory negligence S interposed as a defense to B’s cross-claim. Plaintiffs’ judgment against both defendants was satisfied. In these circumstances on S’s appeal from the judgment in favor of B, the verdict in favor of B was reversed because inconsistent with the judgment, which had become conclusive, in favor of plaintiffs against B. Plaintiff Smith sued for a liquidated sum of $1,550. The court refused a verdict for $200 and, later, the jury returned a verdict for $1,550, which was received and, upon appeal, held proper as plaintiff was entitled to $1,550 or nothing. Defendant’s cases do not establish the alleged error.

Defendant’s brief contains no reference whatsoever to any page of the transcript to sustain its contention. It is not the duty of an appellate court to search the record to ascertain if the error alleged by an appellant exists and is prejudicial. Civil Rule 83.05(a) (4), (d); Bays v. Jursch, Mo.App., 340 S.W.2d 430[2]; Jeck v. O’Meara, 343 Mo. 559, 122 S.W.2d 897, 905[15].

There is nothing of record to sustain defendant’s assertion in argument that the verdicts are quotient verdicts. Chrum v. St. Louis Pub. Serv. Co., Mo., 242 S.W.2d 54[1],

The damages to be awarded for a temporary nuisance of this nature have been considered to be peculiarly within the province of the jury, and are not to be interfered with unless grossly excessive or grossly inadequate. McCracken v. Swift & Co., 212 Mo. 558, 265 S.W. 91, 93. There is no contention (here or in the trial court) that the verdict for any set of plaintiffs is excessive. See Shohoney v. Quincy, O. & K. C. R. Co., 231 Mo. 131, 132 S.W. 1059[1], 1062; Johnson v. Flex-O-Lite Mfg. Corp., Mo., 314 S.W.2d 75, 84[13]. If none of the verdicts is excessive, prejudicial error is not established by the verdicts being for identical amounts. Judgments are not to be reversed unless the appellate court believes error was committed against the appellant materially affecting the merits of the action. Civil Rule 83.13(b). The damages laid by the different sets of plaintiffs ranged from $5,000 to $50,000, the plaintiffs living farthest from the plant asking $22,000. Defendant’s presentation does not establish prejudicial error; and we may not say as a matter of law that manifest injustice or miscarriage of justice has resulted to defendant from the verdicts being identical in amount.

Plaintiffs’ chemist was handed a bottle, plaintiffs’ Exhibit No. 1, and asked to smell and identify its contents. The witness, opening the bottle, identified its contents as hydrogen sulphide gas, having the well known and distinctive odor of rotten eggs. So far as disclosed by the record this bottle was opened only for the short time required by the witness to smell and identify its contents.

Later, at the noon recess, counsel for the defendant moved for a mistrial on the ground plaintiffs had brought into and turned loose in the courtroom the noxious odors from a bottle containing hydrogen sulphide only for the purpose of having the jury smell said offensive odors to the prejudice of defendant, and that defendant could not have a fair trial before said jury. Consult Hildreth v. Key, Mo.App., 341 S.W.2d 601[25]; Hermann v. St. Louis Pub. Serv. Co., Mo.App., 345 S.W.2d 399[13].

Defendant’s counsel was not a witness. His unsworn remarks to the court in his motion for a mistrial were not proof of the facts asserted. Hardwick v. Kansas City Gas Co., 352 Mo. 986, 180 S.W.2d 670, 673[3]; State ex rel. Horn v. Randall, Mo.App., 275 S.W.2d 758, 763[7]; Bullock v. B. R. Electric Supply Co., 227 Mo.App. 1010, 60 S.W.2d 733, 735[6].

There was testimony from the plaintiffs that the nauseating, burning and noxious odor at their premises from defendant’s plant had the same smell as the odor from said Exhibit. 1. With plaintiffs adducing evidence of substantial damages, we think it proper to show by scientific evidence the cause of that damage.

The granting of a mistrial for misconduct during the progress of a case rests largely within the discretion of trial courts. Smith v. Thompson, 346 Mo. 502, 142 S.W.2d 70, 73[5, 6]; State ex rel. and to Use of Donelon v. Deuser, 345 Mo. 628, 134 S.W.2d 132[5]; Brooks v. Mock, Mo., 330 S.W.2d 759, 769[15], The trial court had an equal opportunity with defendant’s counsel to observe the effect of said witness opening the bottle long enough to identify the hydrogen sulphide odor and was not impressed with statements by defendant’s counsel in its motion for a mistrial. When the point was again presented in defendant’s motion for new trial, the court again overruled it. The record does not establish an abuse of discretion on the part of the trial court in these rulings.

The judgment is affirmed.

STOCKARD, C, concurs.

BARRETT, C., not sitting.

PER CURIAM.

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

All of the Judges concur.