author: LEEDY, Judge.

text:
    STATE of Missouri ex rel. Jesse E. SMITH, County Collector of Greene County, Relator, and Pleasant View Reorganized School District No. 1 of Greene County, Missouri, Willard Reorganized School District No. 2 of Greene County, Missouri, Fair Grove Reorganized School District No. 10 of Greene County, Missouri, Strafford Reorganized School District No. 6 of Greene County, Missouri, Bolivar Road District No. 104 of Greene County, Missouri, the Greene County Library District, the County of Greene, and the State of Missouri, Respondents, v. CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Springfield City Water Company, a Corporation, Appellants, and Springfield Reorganized School District No. 12 of Greene County, Missouri, (Non-appealing) Defendant.
    No. 49424.
    Supreme Court of Missouri, En Banc.
    Jan. 13, 1964.
    Rehearing Denied Feb. 10, 1964.

      Neale, Newman, Bradshaw, Freeman & Neale, Charles F. Newman, O. J. Taylor, Springfield, for appellant, Springfield City Water Co.
    J. Weston Miller, Mayte B. Hardie, Miller, Fairman, Sanford, Carr & Lowther, Springfield, for City of Springfield.
    Stewart, Reid & Turner, A. Ronald Stewart, Springfield, Don Burrell, Pros. Atty. of Greene County, Springfield, for respondents.
   LEEDY, Judge.

In 1957 City of Springfield (hereinafter referred to as City) acquired by purchase from Springfield Water Company, a corporation (hereinafter called Water Company), the latter’s waterworks properties and plant, including all lands and improvements thereon. The present controversy arises out of certain provisions of the contract under which said purchase and sale was effectuated, particularly paragraph IX thereof having to do with the ad valo-rem taxes levied and assessed on said properties for the year 1957, the critical provisions of which are, “The total purchase price payable, after all adjustments and additions, .by the City shall be reduced by [á certain proportionate amount of the ad valorem taxes for said year, now concededly 363/365ths thereof, or, in amount, $204,-037.92] and the City shall discharge all liability for the whole of the year’s ad valorem taxes and hold Water Company harmless therefrom. All other taxes it may owe shall be paid by Water Company.” In closing the sale, City’s purchase price was actually reduced, pursuant to said paragraph, in the sum of $204,037.92, but City did not then or at any time thereafter pay any of such ad valorem taxes, and this action was filed upon refusal of plaintiffs’ demand upon City and Water Company for the payment of the aforesaid 1957 ad valo-rem taxes.

The action was brought in eight counts (Count VIII being for declaratory relief) seeking judgment against City alone to recover the amount of said ad valorem taxes. Plaintiffs named in the petition, in addition to the State itself and the State at the relation of the county collector, are political subdivisions or governmental units to which the ad valorem taxes just mentioned were allocable. Another such unit is City itself, although, of course, it is not a party plaintiff. For convenience these multiple parties plaintiff will generally be referred to in the singular, or as collector. Still another unit, Springfield Reorganized School District No. 12 of Greene County, allegedly refused to join as a party plaintiff, and for that reason was joined as a party defendant' It filed no answer, however, and did not appear. No money judgment against Water Company was sought, but it was joined as a party defendant because of its supposed interest in said sum of $204,-037.92, which allegedly continues until said sum or fund is applied to the payment of said 1957 ad valorem taxes. Water Com- ' pany did, however, file a cross-claim against City by which it sought to recover the amount of the aforesaid taxes so deducted and withheld from' the purchase price, and not paid by City. City, by appropriate pleadings,- denied liability either to plaintiffs or to Water Company, sought declaratory relief against plaintiffs, and prayed that it be discharged.

The cause was heard in the first instance before the late Honorable Warren L. White, a retired judge of the Greene County Circuit Court, who was called by this (the Supreme) court for temporary duty as Special Commissioner in said cause, pursuant to § 476.010 et seq., RSMo and V.A.M.S., and Rule 11.07, V.A.M.R. It was stipulated that the evidence to be taken and the issues to be tried at the hearing before Judge White be limited to plaintiffs’ cause of action against City, it being understood and agreed that Water Company would not be entitled to recover on its cross-claim against City if judgment be rendered for plaintiffs, and with the further understanding that the hearing would be later reopened for the taking of evidence with respect to Water Company’s cross-claim against City if the Special Commissioner did not find for plaintiffs against defendant City.

In accordance with the findings and conclusions of the Special Commissioner (as amended by the circuit court), final judgment was entered (a) in favor of plaintiff county collector against City of Springfield on Count II of the petition in the principal sum of $204,037.92 plus interest thereon from a certain date, making a total of $254,877.38; (b) making certain declarations under Count VIII, as sought by plaintiffs; (c) dismissing Counts I, III, IV, V, VI and VII of the petition; and (d) dismissing Water Company’s cross-claim, but without prejudice to the reinstatement thereof if the judgment in favor of plaintiffs against City be reversed. Both City and Water Company have appealed. While Water Company has filed a brief (largely a defensive move), there is, in fact, no real controversy here except as between plaintiff collector and City, this for the reason that Water Company’s cross-claim against City is concededly untenable unless and until it be adjudged that City is not liable for the amount of said taxes. Nor are the facts in dispute, and the determinative question is purely one of law. Practically all of the evidence in the case was either documentary, or consisted of stipulated facts (except those concerning which City made certain offers of proof). In our statement which follows, some of the facts thus stipulated will be paraphrased, and others quoted but without so indicating in either instance.

The contract in question by which City agreed to purchase and Water Company agreed to sell the waterworks properties and waterworks plant was entered into February 19, 1957. By its terms the base purchase price was fixed at Nineteen Million Dollars “adjusted as hereinafter provided for and plus amounts to be computed for specific assets as hereinafter provided for.” (To be so adjusted at the time of consummation of the sale, and by such factors as plant additions, plant retirement, customer deposits, payrolls, bills receivable, bills payable, and various other matters not here relevant.) Such purchase and sale was, however, made contingent on (1) the authorization by the voters of City to make such purchase, and for the creation, issuance and sale of water revenue bonds requisite for that purpose, (2) consent and approval of Public Service Commission of Missouri for such sale and purchase, and (3) the ability of City to sell its revenue bonds before the final closing date, and “at such rate of interest as will permit the liquidation thereof from the future earnings of such water utility system.” These conditions were met and fulfilled, and the purchase and sale was closed on December 30, 1957, upon which date Water Company conveyed to City, and City accepted and took title to all the real and personal property owned by Water Company in Greene County, Missouri.

Paragraph VIII of the contract provides that the properties and assets “ * * * shall be transferred and conveyed to City at the time of closing, free and clear of all liabilities and encumbrances of every kind whatsoever, and Water Company shall pay and discharge any and all of its debts and liabilities that are or might become a lien, charge or encumbrance against the properties transferred to City as of the date of closing or make provision therefor satisfactory to City, excepting only the following: (a) * * * Customers’ Deposits [water] held by Water Company,” which, plus interest thereon, were to be paid over to City “to date of closing, and City shall assume all liability for such Customers’ Deposits; (b) Water Company shall pay to City Fifty per cent (50%) of the amount of the account for Customers’ Advances for Construction as of the date of closing, and City shall assume all liabilities for refunds that may become due upon said Customers’ Advances for Construction * *

Paragraph IX provides that the ad valorem taxes assessed against Water Company for 1957 (or the year in which consummation would occur) shall be determined, then specifies several methods therefor (as affected by the time of the tax year at which such determination is sought to be made, and the availability or not of certain relevant data), following which are the critical provisions giving rise to the present controversy, viz.: “The total purchase price payable, after all adjustments and additions, by the City shall be reduced by that amount that equals that proportion of the annual ad valorem tax that the number of days that have elapsed in the year up to and including the date of closing is proportional to the whole of the calendar year, and the City shall discharge all liability for the whole of the year’s ad valorem taxes and hold Water Company harmless therefrom. All other taxes it may owe shall be *iaid by Water Company.”

By paragraph XI Water Company agreed to execute such necessary instruments of conveyance or assignment as might be required for the transfer of the properties, “same to be transferred free and clear of all liens, encumbrances and claims, excepting only as to those liabilities herein-above specifically agreed upon to be assumed by the City.”

Paragraph XII provided, “It is understood that the earliest closing of this sale and purchase that is practicable is, and will be, of benefit to both parties.” It further provided that the closing date “shall be not later than the- First (1st) day of December, 1957, unless a later date is agreed upon [as thereinafter provided], * * * All adjustments and computations for determining final price to be paid and the transfer of the properties hereby contracted to be sold and purchased and operation of the business, shall be as of the end of the business day on the day preceding the date of closing * *

On December 30, 1957, the sale and purchase was consummated by transfer of the properties to City and the payment of the purchase price. In the warranty deed of that date by which Water Company transferred and conveyed to City specifically described real estate, it convenanted “that the said premises are free and clear of any encumbrance done or suffered by it or those under whom it claims; and that it will warrant and defend the title to said premises * * * against the lawful claims and demands of all persons whomsoever, excepting that no warranty is made as to city, county or state realty taxes for 1957 and thereafter, which might constitute a lien against these premises.”

The other conveyance of the same date was titled “Deed and Bill of Sale,” and purported to convey both real and personal property although no real estate was specifically described. It also contained these recitals:
“It is understood and agreed that the properties and assets hereby sold and transferred are sold and transferred subject to all ad valorem property taxes levied for the year 1957 and thereafter and City agrees to protect and save the company harmless from any liability for payment of same. * * *
“Party of the Second Part, in consideration of such payments, assumes Party of the First Part’s entire liability to the customers under and in accordance with the tariffs, rules and regulations of Party of the First Part under which said advances were made to said customers for the whole of all the ‘customers’ advances for constructions.’ * * *
“Party of the Second Part agrees to, does and shall assume all liability to such customers for the deposits so made and at this time paid to City [referring to the customers’ water deposits paid over by Water Company in cash to City].”

In the habendum clause the Water Company covenanted “that it is lawful owner of all the property, rights and interests here-inabove described, free and clear of all encumbrances and claims, excepting only general property taxes as hereinabove described, and obligations and liabilities to be assumed by Party of the Second Part on the contracts transferred to Party of the Second Part and listed in Part II of Exhibit ‘A’ hereunto attached, and obligations in connection with customers’ deposits and customers’ advances for construction specifically assumed by City * *

In closing said purchase and sale and pursuant to paragraph IX of the contract, City and Water Company computed and agreed upon the sum of Two Hundred Four Thousand Thirty Seven and 92/100 Dollars ($204,037.92) as the amount that equaled that proportion of the 1957 ad valorem taxes that the number of days that elapsed in 1957 up to and including the date of closing (December 30, 1957) was proportional to the whole of the calendar year of 1957 [363/365ths]. City and Water Company also agreed (in writing) upon a “closing price” of Twenty Million Nine Hundred Twenty-Four Thousand Two Hundred Seventy Dollars ($20,924,270.00) to be paid by City to Water Company on December 30, 1957, and the aforesaid sum of Two Hundred Four Thousand Thirty-Seven and 92/100 Dollars ($204,037.92) was deducted from the purchase price in arriving at the aforesaid “closing price” in accordance with the provisions of paragraph IX of the contract; said “closing price” was subject to further adjustments, additions and computations (not necessary to be noticed) in accordance with the written agreement between the parties last above mentioned.

The first point relied on for reversal is that the trial court had no jurisdiction to entertain this action “because it is a suit to collect taxes.” The more specific ground on which this point is based is that the two methods prescribed by our statutes applicable to Greene County (foreclosure of the state’s lien for taxes by advertisement and sale of delinquent lands under Chap. 140, and distraint of personalty under § 139.120) constitute exclusive methods for the collection of taxes on realty, and bar all suits for such purpose (“not just suits to enforce tax liens”).

It would serve no purpose to review the cases cited on this question because none of them are comparable on the facts. They declare or apply certain principles as to which there is no contest here, typically these (as excerpted from State ex rel. Hayes v. Snyder, et al., 139 Mo. 549, 554, 41 S.W. 216, 217: “[I]f the statutes of this state make special provisions for the collection of taxes against real estate, and do not apparently contemplate that any others will be necessary, the mode of collection prescribed by statute is exclusive. Cooley, Tax’n (2d Ed.) 16, says: ‘But, in general, the conclusion has been reached that where the statute undertakes to provide remedies, and those given do not embrace an action at law, a common-law action for the recovery of the tax as a debt will not lie.’ This is the generally accepted doctrine, though there are exceptions to this general rule; * * *. There are therefore two different methods provided by statute for the collection of taxes against real estate, viz. one by suit to enforce the state’s lien [now supplanted in all counties except those of the first class and in the City of St. Louis by the administrative proceeding involving advertisement and sale under Chap. 140, supra] against the land, the other to distrain personal property for ‘all taxes.’ * * * It was said in City of Carondelet v. Picot, supra [38 Mo. 125] : ‘The levying of taxes is a matter solely of statutory creation, and no means can be resorted to, to coerce their payment, other than those pointed out in the statute.’ ”

The petition is quite lengthy, contains eight counts, and covers thirty-three pages of the transcript. We deem it unnecessary to even summarize its mountainous allegations. While it is ineptly captioned, “Petition — Collection of Delinquent Taxes and for Declaratory Judgment,” such label is neither conclusive or even persuasive as to its precise nature. It is not in any sense a conventional suit for the collection of delinquent real estate taxes (such as is authorized in counties of the first class and in the City of St. Louis (§ 141.090), nor is it bottomed upon any liability arising solely from the exercise of the state’s taxing power. No foreclosure of any tax lien upon real estate is sought or involved, nor is it sought to obtain a personal judgment for taxes, as such, or to recover monies payable from taxes imposed by City. Count II of the petition (being one of the two on which the judgment appealed from was rendered) is bottomed on the theory that plaintiff is a third-party creditor beneficiary under the contract; that City’s liability and obligation in the premises rests upon its independent, voluntarily .assumed contractual duty to “discharge all liability for the whole of the year’s ad valorem taxes” (by paying to plaintiff collector the amount by which the purchase price was reduced, $204,037.92, which sum represented Water Company’s agreed pro rata share of said taxes), and that City received the aforesaid tax monies in the sum of $204,037.92 which in equity and good conscience should have been paid to the collector for distribution to the taxing units for whose benefit the action was brought, and thereby became a trustee as to such monies, holding same for payment to the collector for the use and benefit of said taxing units. The court so found, and entered judgment accordingly, including appropriate declarations under Count VIII.

Other theories are advanced in the petition, but without separately or further developing them it may be said that the following characterization made by plaintiff as to the nature of the action is fair and apt: “[It] is an action brought on (1) a liability imposed by contract either independent of (the basis of the judgment here) or in fulfillment of the hereinafter mentioned duty imposed by law upon City or '(2) a liability imposed by law by reason of City’s failure to perform its duty under law to provide for the payment of taxes out of the purchase money or fund at the time of the transfer of the real estate or (3) a liability for damages resulting from conversion or (4) a declaratory judgment action relative to these first three liabilities.”

As regards the remedy of distraint, it seems to be conceded that if goods and chattels of Water Company could be found in Greene County, they would be subject to being seized and sold by the collector for the unpaid taxes on said land, but City tacitly (if not expressly) admits that “the remedy of distraint is not effective at this time.” (We express no opinion on whether distraint still lies.)

If the action were one to foreclose the state’s lien, or to obtain a personal judgment for taxes, as such, and apart from contract, then City’s position would undoubtedly be correct; but, as we have seen, it is not at all of that kind, but being of the nature we have outlined, we hold the circuit court was not deprived of jurisdiction of the subject-matter by reason of the statutes invoked by City.

Somewhat akin to the foregoing point, and running through City’s argument on the whole case is the theme and contention that by reason of Art. X, § 6, Const, of Mo., V.A.M.S., and the doctrine of such cases as State ex rel. City of St. Louis v. Baumann, 348 Mo. 164, 153 S.W.2d 31, City is “constitutionally exempt from the payment of taxes which plaintiffs seek to collect in this action.” The constitutional provision thus invoked provides: “All property, real and personal, of the state, counties and other political subdivisions * * * shall be exempt from taxation.” (Art. X, § 6, Const, of Mo.) The Baumann case, in applying this principle of exemption, held that land purchased by the city in its public governmental capacity became immune from taxation as soon as the city became the owner (or equitable owner) of it, and moreover that such immunity extended to taxes assessed and levied prior to the acquisition of the property by the city. Such seems to be the general rule. See Anno.: 158 A.L.R. 563. In Baumann the precise effect of acquisition upon prior liens was not specifically determined, i. e., whether the same were extinguished or merely rendered dormant or unenforceable. We do not need to inquire into the latter question, at least at this juncture, but City’s claim of constitutional immunity will be considered in connection with plaintiff’s contention that the contract obligated City to pay the priorly assessed taxes, and that plaintiff is a third-party creditor beneficiary of that contract.

We are thus brought directly to the crucial question in the case, the solution of which lies in the interpretation to be given the mooted provisions of paragraphs VIII, IX and XI out of which City’s liability is asserted to have arisen. City’s primary contentions on this phase of the case are: (1) That the contract does not create any rights in plaintiff enforceable against the City; 12) that City did not promise to pay said taxes, and has no obligation to pay the same, is constitutionally inhibited from so doing, and that its only obligation in that regard is to hold Water Company harmless from the collection of such taxes, and that such obligation is simply an indemnity agreement on which no third party may sue, and (3) that the contract was not made for the benefit of plaintiff, and he is at most an incidental beneficiary having no right of action thereon. Collector’s contentions are, of course, to the contrary.

Under plaintiff’s own theory, if he is a third-party creditor beneficiary under the contract, his status and rights as such derive from the provisions of IX (under which the purchase price to City was reduced to the extent of $204,037.92 in conformity with the formula therein prescribed) and, indeed, primarily from the concluding clause of the next to the last sentence of said paragraph, viz.: “ * * * and the City shall discharge all liability for the whole of the year’s ad valorem taxes and hold Water Company harmless therefrom.” We use the word “primarily” in the above connection for the reason that in the absence of the quoted language there could not be even a semblance of a claim of liability against City.

The provisions of VIII and XI are also relied on, in conjunction with IX, as fixing liability on the part of City. The relevant portions of VIII and XI are hereinabove set out, and so are not repeated here. They deal with the matter of transferring the properties to City free and clear of encumbrances. Pointing to the provision of VIII that the property was to be transferred to City “at the time of closing, free and clear of all liabilities and encumbrances of every kind,” plaintiff contends that tax liens were comprehended or included within the meaning of said language. Plaintiff also contends that the further provision of VIII (that “Water Company shall pay and discharge any and all of its debts and liabilities that are or might become a lien, charge or encumbrance against the properties transferred to City as of the date of closing or make provision therefor satisfactory to City”) “meant that if all liabilities and liens (including the liability and lien for taxes against the property) were not paid and discharged at or prior to the date of closing, provision for their payment and discharge was to be made,” and that “such a provision for the payment and discharge of the 1957 tax lien and liability was made in Paragraph IX.” (This was the theory adopted by the trial court.)

Paragraph IX makes it clear, we think, that it was not contemplated that Water Company should itself pay to the taxing authorities any of the 1957 ad valorem taxes. If this is not so, there would have been no occasion for City to have agreed to discharge all liability for such taxes and hold Water Company harmless therefrom. The paragraph deals exclusively with the subject of taxes, making the specific and detailed provisions we have noticed with respect to ad valorem taxes, and concludes thus: “All other taxes it may owe shall be paid by Water Company.” The requirements of IX with reference to the reduction to be effected in the purchase price, and of the obligation of City to discharge all liability for the year’s ad valorem taxes were expressed imperatively, by the word “shall,” thus negating any idea that Water Company might or would pay same directly. Under the familiar rule invoked by City that general terms and provisions of a contract yield to specific ones, it is our view that the subject of ad valorem taxes, having been segregated and dealt with in IX in a particular and special way, was thereby taken out of and removed from the intended operation of the provisions of VIII and XI which dealt with the general subject of liens and encumbrances. In this situation City’s liability must be held to turn on the meaning of the obligation that it “shall discharge all liability for the whole of the year’s ad valorem taxes and hold Water Company harmless therefrom.”

A contract or other written obligation is to be construed in the light of the law existing at the time it was entered into. Hubbard v. Hubbard, Mo.App., 264 S.W. 422; Bowers v. Kansas City Public Service Co., 328 Mo. 770, 41 S.W.2d 810. The Baumann case makes it plain that the property became exempt from taxation at the moment City became the owner, and that such immunity extended to the 1957 taxes theretofore assessed, so that the property, at the time City acquired the same, was no longer legally subject to any measure by which collection could be coerced. This principle is aptly and more fully expounded in the oft-cited case of Gachet v. New Orleans, 52 La.Ann. 813, 27 So. 348: “ ‘The tax law of a state,’ says Desty in his work on Taxation (volume 1, p. 48), ‘applies to persons only, and not at all to political bodies like municipal corporations, which exercise in different degrees the sovereignty of the state.’ Hence it is that when property upon which state taxes are assessed is acquired by a political subdivision of the state, like the city of New Orleans, to which certain powers of sovereignty and government have been delegated by the state, which property is acquired for purposes of public utility coming within the scope of the powers so delegated, and is immediately dedicated or applied to such purposes of public utility, the taxes so assessed in favor of the state upon the same cease to be exigible. It pertains to the public policy of the state not to exact taxation on property so held and used. Within the scope of the powers delegated to it, the city stands for the state, and property acquired by the city in the due execution of its mandate from the state stands in consimili casu with property owned by the state itself, and taxes assessed in favor of the state upon such property must be held abated. It is a commingling of the qualities of debtor and creditor in such way that there arises a confusion of right extinguishing the obligation.”

Paragraph IX does not use the word “pay” or “payment” in any connection with respect to ad valorem taxes, but it does as to all other taxes. The very next sentence following the clause in controversy says this: “All other taxes it may owe shall be paid by Water Company.” It will be noted that in the first sentence of VIII both “pay” and “discharge” are used, and this conjunctively ( shall pay and discharge”). Elsewhere in the same paragraph the word “pay” is used twice. We think it significant that it is absent in the key clause, but is used in the other connections just noted. “Discharge” has various meanings (including that of payment), depending on the connection in which it is used. In the circumstances here considered, we think it does not necessarily import payment. Obviously, discharge may be accomplished without payment, as, for example, by set-off or the like, to say nothing of sovereign immunity. It “is a general word covering all methods by which a legal duty is extinguished.” Restatement, Contracts, § 122(b). It is only by construing the word “discharge” to mean that City became liable for the payment of the whole year’s taxes that there is any obligation on it to pay that part based on the proportion of the year Water Company owned the property, and that portion is all that is here in controversy.

We do not ascribe to the contract the meaning that, because of the reduction in the purchase price to the extent of a prescribed proportion of the year’s taxes, it was intended City voluntarily assume or become liable to pay not only that portion (which for convenience may be called Water Company’s pro rata share), but also the remaining proportion (as to both of which, in the absence of contract, City would in any event be exempt). Under plaintiff’s construction, had the transaction been closed July 1st, City would nevertheless have been liable for the whole year’s taxes. This, we think, was not intended. We hold there was no obligation on the part of City to pay the taxes in question, or any part of them. In this view, plaintiff is not a third-party creditor beneficiary, and cannot recover. The fact that City will have received a windfall does not affect the question of law thus resolved, unfortunate as this may seem from the standpoint of the other governmental units at whose expense this result follows.

The judgment is reversed, and inasmuch as the issues between City and Water Company were, by agreement, held in abeyance and not tried pending the outcome of the case as to plaintiff, the cause is remanded.

All concur, except HOLMAN, J., not sitting.

      . All statutory references are to RSMo 1959 and Y.A.M.S., unless otherwise noted.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    STATE ex rel. KANSAS CITY POWER & LIGHT COMPANY, a Corporation, Respondent, v. SALMARK HOME BUILDERS, INC., et al., Defendants, Raytown Investment Company, a Corporation, Appellant.
    No. 49648.
    Supreme Court of Missouri, Division No. 1.
    Jan. 13, 1964.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 10, 1964.

      Rufus Burrus, Independence, for appellant.
    Keith P. Bondurant, Kansas City, Spencer, Fane, Britt & Browne, Kansas City, for respondent.
   COIL, Commissioner.

Kansas City Power & Light Company, a corporation, brought an action in October 1956 to condemn land for easements or rights-of-way for the construction, operation, and maintenance of 161,000 KV transmission lines upon and over certain real estate in Jackson County. Duly-appointed commissioners awarded appellant $20,000 as damages to a 115-acre tract over which the line was constructed. A jury trial on exceptions resulted in a judgment for appellant for $10,000 which, on appeal, was reversed and the case remanded for new trial. See State ex rel. Kansas City Power & Light Co. v. Salmark Home Builders, Inc., et al., Mo., 350 S.W.2d 771. At the new trial in March 1962, a jury awarded $7,700 and landowner, Raytown Investment Company, has again appealed and contends the trial court erred in admitting certain evidence and in giving an instruction. Inasmuch as there was substantial evidence to support appellant’s claim that its damages exceeded $90,000, we have jurisdiction. Art. V, § 3, Mo.Const. 1945; § 477.040 RSMo. 1959, and V.A.M.S. We shall sometimes refer to the condemnor as plaintiff and to appellant as defendant.

At the time the condemnation action was filed, October 1956, defendant’s 115 acres had been zoned residential and zoned for a sewer lagoon and the lagoon had been constructed. Defendant intended to subdivide the 115 acres into 350 to 400 lots and sell them as sites for 1-family residences. An engineer’s preliminary plan had divided some of the acreage into lots and provided 33,853 lineal feet frontage. By the date of the condemnation action, a plat for only eight proposed lots had been filed. The right-of-way, according to defendant, affected 28 of the proposed lots, eliminating them in whole or in part, resulting in a loss of about 4,100 feet of frontage. Plaintiff’s testimony was to the effect that it was not necessary to lose many, if any, front feet by a different rearrangement of lots than that suggested by defendant. At trial time 5j4 years after the taking, plats had been filed for 154 lots and houses had been built on approximately one third of those.

The right-of-way was 160 feet wide and covered 5½ of the 115 acres. Plaintiff, by acquisition of the easement, obtained the rights, among others, of ingress and egress to construct, maintain, rebuild, and repair the transmission line; to remove and relocate the poles, wires, and appurtenances; to remove any or all of said installations and to maintain and use gates in any fences which might cross the easement. Defendant and its assigns were given the right to cultivate and use the easement or right-of-way provided such use did not interfere with the construction, operation or maintenance of the transmission lines and so long as no permanent structures were erected.

Defendant’s seven expert damages witnesses and two of plaintiff’s testified that the highest and best use of the 115 acres at the time of taking was for residential building. The other two plaintiff’s witnesses agreed that the best use of the land was for a residential subdivision but thought that, at the time of taking, the land should have been held for future development.

Defendant’s evidence was that the difference in the fair market value of the 115 acres before and after the taking of the easement was from $50,000 to $97,000, while plaintiff’s evidence was that the difference was from $4,600 to $8,000. Some of defendant’s witnesses conceded that the figures they gave as the difference in the value before and after the taking were based in large part upon the loss to defendant of anticipated profits on the assumption that defendant would develop all of the lots in the subdivision shown on the preliminary plan, providing therefor streets, curbs, sewer lines, etc., and would sell all those lots. In other words, those witnesses conceded that they multiplied the number of lineal feet of lot frontage, which defendant’s engineer testified were lost by reason of the right-of-way, by a $10-a-front-foot anticipated profit and treated that lost anticipated profit figure as one of the major items making up defendant’s total damage. On motion to strike the testimony of one such witness, the trial court indicated that the matter could be handled by instructions to the jury.

Defendant contends first that the trial court erred in permitting plaintiff’s counsel on cross-examination of defendant’s witness Ong to read a portion of his testimony at the prior trial to the effect that his company had sold land in another subdivision for this same right-of-way for $1,000 an acre. Plaintiff contends defendant failed to preserve the matter for appellate review because it was not set forth in its motion for new trial. The only allegation in the new trial motion pertaining to the admission of evidence was that the trial court “erred in admitting incompetent, irrelevant and immaterial evidence on behalf of the plaintiff.”

Civil Rule 79.03, V.A.M.R. provides in pertinent parts that “Allegations of error, in order to be preserved for appellate review, must be presented to the trial court in a motion for a new trial; * * * ” [with certain exceptions not here applicable] and that “Where definite objections or requests were made during the trial in accordance with Rule 79.01, * * a general statement in the motion of any allegations of error based thereon is sufficient.” Civil Rule 79.01 provides in pertinent part that for all purposes “for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor * *

Defendant argues that inasmuch as at the trial it made a specific objection for stated reasons to the proffered testimony in question, its new trial averment that the court erred in admitting incompetent, irrelevant and immaterial evidence on behalf of plaintiff was sufficient to preserve the question for appellate review. This court so held in Taylor v. Kansas City Southern Ry. Co., 364 Mo. 693, 266 S.W.2d 732, 736 [1, 2]. It seems to us, however, that a new trial motion, while it need not state the objection or objections made, or set forth the reason or reasons given therefor, should in all events contain language which calls the trial court’s attention to the evidence which forms the basis for the new trial specification of error. For example, in this case, it seems to us that the new trial motion should have contained an averment which recited in substance that the trial court erred in admitting testimony of the witness Ong pertaining to the sale of acreage in Fairlane for the same right-of-way here involved for the reasons stated at the time the court overruled the objection made. Such a construction of the rules in question seems reasonable and proper when it is recognized that the very purpose of a motion for new trial is to call the trial court’s attention to the errors which a party claims the court has made and to give that court an opportunity to correct them. Surely a general catch-all objection that the trial court erred in admitting incompetent, irrelevant and immaterial testimony should not be sufficient to preserve all matters for appellate review wherein the trial court (perhaps in ten to a hundred different instances) admitted evidence over the objection of a party. In view of the prior ruling to the contrary in Taylor, supra, and in some other earlier cases, we, nevertheless, shall rule the question presented on its merits.

Defendant’s witness Ong testified that the corporation which he and his father operated had developed various subdivisions, including Fairlane in Jackson County which ran from 95th Street down Bannister Road to 99th Street; that it was begun in 1955 and completed in 1961; that defendant’s property which was a short distance north of 99th Street would be about three fourths of a mile west of Fairlane; and that defendant’s 115 acres had been damaged in the amount of $97,000 by reason of the right-of-way running through it.

On cross-examination these questions were asked and these answers given:

“Q * * * I will ask you this, Mr. Ong: Isn’t it true that a section of this identical line does run across the back of Fairlane? A Well, it runs alongside of a railroad which bisects Fairlane into two portions. There are no through streets through Fair-lane. The Kansas City Southern bisects Fairlane into two portions. The power line does parallel the right of way of the railroad. There may be one or two lots which back on the right of way; I am not sure. At the time the homes were built, sold, and delivered the right of way did not exist, but it is insulated by the railroad from most of the lots it would be adjoining.
“Q This right of way is part of the Fairlane addition, is it not? A No, sir. As I say, there may be a portion of the right of way which would bound on the Fairlane addition, but it is bounded on one side by the Kansas City Southern right of way and on the other side it went principally through 19 acres of ground owned by Beamer, which separated Fairlane from the railroad.
“Q Are you saying that it is not a part of the Fairlane addition? A The Fairlane addition as it is legally platted adjoins no portion of the Kansas City Power & Light Company right of way.
“Q You testified in a prior trial of this case in April, 1960? A Yes.
“Q I will ask you if on Pages 157 and 158 of the transcript these questions were asked of you and these answers made by you.”

Whereupon, out of the hearing of the jury, plaintiff’s counsel objected to reading the questions and answers from the prior testimony and thereby disclose the sale of land in Fairlane for $1,000 an acre. Plaintiff’s counsel stated that he desired to read that portion of the testimony to impeach the witness. The court overruled the objection, whereupon counsel proceeded with the cross-examination.

“Q * * * Mr. Ong, did you make these answers to these questions:
“ ‘Q Isn’t it true that in late 1956 or possibly 1957 your company sold five acres of right of way for this identical line in Fairlane for $1,000.00 an acre?
“ ‘A It is correct that we made such a transaction for ground that is unsuitable for home development.
“ ‘Q It was, however, part of the Fairlane addition?
“ ‘A It was part of the ground we had to acquire from the owner in order to obtain the rest of the property.’
Did you make those answers before? A Yes, sir; that is correct. There is a misunderstanding here as to what comprised the Fairlane addition. It is described by its legally recorded plats. The five acres you referred to was never included in the plat for record. It is not part of the 468 lots you were asking me about. It is part of the ground we had to acquire, but it was not and is not a part of the Fairlane subdivision as recorded.
“Q You .did have homes built on Fairlane at the time this right of way was sold? A That is correct.
“Q Some of those houses had lots that backed up to the right of way ? A I think one or two; I’m not sure how many, but there might have been as many as five or six; I do not recall.”

Defendant’s contention that the trial court erred in permitting the portion of cross-examination in question is based upon the proposition that it is error to admit evidence of amounts paid by a condemnor or received by a condemnee for other property included in the same condemnation proceedings. That is the law and this court so held on the prior appeal of this case, State ex rel. Kansas City Power & Light Co. v. Salmark Home Builders, Inc., supra, 350 S.W.2d 772 [1]. In that case the assistant superintendent of the condemnor’s right-of-way department testified that he had purchased a specified section of the right-of-way for so many dollars and that he had purchased other portions within a specified price range. It seems plain that the rule which precludes either the condemnor or condemnee from affirmatively showing how much it paid or received for land involved in the same condemnation project has no application when the information as to the price paid or received is disclosed upon the proper cross-examination of a witness. In this case Mr. Ong was defendant’s expert witness who testified that the difference between the fair market value of defendant’s whole property immediately before the taking of the easement and the fair market value of defendant’s property after such taking was $97,000; and he testified further that the reasonable market price of the 115 acres with the sewage facilities (lagoon) in existence was about $2,000 an acre.

In our view it was entirely proper for the trial court to permit plaintiff, on cross-examination of the witness, to adduce the fact that in late 1956 or 1957 Mr. Ong’s company sold five acres of the same' right-of-way for $1,000 an acre. The witness properly explained that the ground in question was not suitable for home development and that the five acres sold were not included in the recorded plat of the subdivision. But the witness also testified that there were some of the Fairlane lots which did adjoin the right-of-way, perhaps as many as five or six, and that the Fairlane subdivision was begun in 1955 and was reasonably close to the 115 acres involved.

Under the circumstances, we are of the opinion that the disclosure in question was a proper fact for the jury to consider, along with Mr. Ong’s explanations, in weighing the witness’s testimony as to value and damages, and thus that the trial court did not err in permitting the cross-examination in question. St. Louis, M. & S. E. R. Co. v. Continental Brick Co., 198 Mo. 698, 96 S.W. 1011, 1014(3); Nichols on Eminent Domain, 3d Ed., Vol. 5, § 18.45 [2], pp. 274, 275; 98 C.J.S. Witnesses § 379, pp. 138, 139.

Defendant next contends that the trial court erred in refusing to permit its witness Simley to testify that the selling price of comparable subdivided acreage in the vicinity of the 115 acres was $30 a front foot in December 1956. The testimony was offered on the theory, as counsel for defendant put it, that it had “some bearing on what the land could be used for.” The court agreed and said, “That is all in evidence.” And indeed it was testified by seven witnesses for defendant and by two witnesses for plaintiff that the highest and best use of the tract was for residential purposes. So that the reason suggested by defendant’s counsel for admitting the testimony, viz., that it had “some bearing on what the land could be used for,” was a fact which essentially was not controverted at the trial. Be that as it may, however, the record shows that other witnesses, including two of plaintiff’s expert witnesses, testified that the 115 acres should sell for $30 a front foot. Consequently, even if we assume that the trial court erred in excluding the $30-a-foot testimony by Simley, certainly the testimony of subsequent witnesses, including plaintiff’s witnesses, repetitively placed in evidence the same uncontradicted fact. “It is * * * well settled that, if in a specific instance the evidence should not have been excluded, the error is harmless if the same evidence is found in the testimony of the same or other witnesses, given before or after the objection was sustained.” Steffen v. Southwestern Bell Telephone Co, 331 Mo. 574, 56 S.W.2d 47, 48. Boring v. Kansas City Life Ins. Co., Mo., 274 S.W.2d 233, 238 [7]. Defendant’s statement in its brief, that because the ruling was at the “very outset of the case” (Simley was the third witness), “the jury were given the erroneous idea that the sale price of this or other similarly situated land was not a proper element for them to consider in arriving at a proper verdict for consequential damages” is an unsupported conclusion not demonstrated by the record.

Defendant contends the trial court erred in giving this instruction No. 6 :

“You are instructed that you are not to allow as part of the damages in this case the profits, if any, over the fair market value on December 28, 1956, of the land mentioned in the evidence, which the owner might anticipate or expect to realize if he subdivided the land affected by the easement into residential lots, completed all necessary street, curbing, gas line, grading, sewer and similar improvements, and thereafter sold such lots on a front foot basis as mentioned in the evidence.”

Defendant argues that a jury could understand that instruction 6 meant that it was precluded from considering “the resale of the lands and the prices realized above costs of conversion of land into lots as one of the elements to be considered as establishing ‘fair market value on December 28, 1956’ ”; that the jury would understand that the instruction denied it the right to consider “any reasonably expected profit over costs of subdividing the lands, as one of the facts tending to establish reasonable value on the date of taking”; and that the jury could have understood that the instruction excluded from its consideration “the evidence of sale price of lots over costs of preparing land for sale as such, as applied to its ‘highest and best use’ on 28th December, 1956.”

In so far as the foregoing statements may mean that defendant was entitled to recover as part of its total damage the loss of speculative anticipated profits which might have been realized had the subdivision been entirely developed in accordance with the preliminary plan, we are of the view that the instruction correctly prohibited such recovery. In so far as the above-quoted statements may mean that the jury was entitled to consider the adaptability and capability of the 115 acres to be used as a subdivision for residential building and to consider the loss, if any, of a certain number of front feet at a certain price as elements of damages, we are of the opinion that the language of instruction 6 did not preclude the jury from considering such facts.

Damages which are sought on the theory of injury to the remainder of land after the taking of a part must he direct and certain at the time of the appropriation and, conversely, not remote or speculative; and loss of profits is usually regarded as too speculative and remote to be considered as a basis for ascertaining the damages in a condemnation proceeding. City of St. Louis v. Paramount Shoe Mfg. Co., 237 Mo.App. 200, 168 S.W.2d 149, 153 [1-3], 154 [9, 10]; In re Armory Site in Kansas City, Mo., 282 S.W.2d 464, 472, 475. In 29 C.J.S. Eminent Domain § 160, p. 1026, it is stated: “In determining the uses of which the property is capable, it is necessary to have regard to the existing business or wants of the community or such as may reasonably be expected in the immediate future. This does not mean that the estimate may be based on any future profits .that may be. derived from the property when improved for a particular use when the business wants of the community may make it profitable to use the land in that particular way, but it means only that the fact of the property’s capability or adaptability to the use may be considered as an element of its present value.”

In the present case, as indicated in the statement of facts, some of defendant’s witnesses conceded that they arrived at their opinion as to the total damages sustained by defendant by considering that a major portion of that total was defendant’s loss of anticipated profits on the assumption that defendant would, subsequent to the condemnation, proceed to develop the subdivision with curbs, streets, sewer lines, etc., and sell all of the lots shown on the preliminary plan at a certain price per front foot; and this, despite the fact that 51/2 years after the taking only 154 lots (of 350 to 375 possible) had been platted and only 50 or 60 homes had been built. Because of that evidence, we think a cautionary instruction covering the matter of anticipated profits was proper. We are of the further opinion that while instruction 6 is not an especially clear statement of the proposition apparently intended, there is no misdirection in it; and that when instruction 6 is read with instruction 2, the jury would not be misled by the lack of clarity of instruction 6. Instruction 2 told the jury that in determining the purpose for which defendant’s land was suitable or adaptable, it was not confined to the use made at the time of the taking, but that the jury could also consider the uses for which the land was reasonably adaptable at that time, considering its location and surroundings. Contrary to defendant’s contention that instruction 6 is in conflict with instruction 2, we consider those instructions to be cbnsistent and complementary.

Furthermore, instruction 6 did not, as contended by defendant, withdraw or destroy -the evidence to the effect that the highest and best use of the 115 acres was for lots for residential building; nor did it, as defendant contends, preclude the jury from considering the highest and best use of the land in determining the fair market value prior to and after the taking. We repeat, we do not commend instruction 6 as an enlightening direction to the average juror, but we are convinced that it was not prejudicial to defendant. It was the duty of defendant to have offered a clarifying or amplifying instruction if it felt that instruction 6 was not clear enough.

Defendant contends further that instruction 6 was prejudicial because it caused an inadequate award to the landowner. It is apparent that such a contention assumes, contrary to our holding herein, that the instruction was erroneous.

Defendant contends finally that instruction 6 violated Article I, Section 26, of the 1945 Missouri Constitution in that the award did not constitute “just compensation” as therein provided. In so far as this point may be considered a contention that the award was not supported by substantial evidence, the answer is that the testimony of four witnesses for plaintiff to the effect .that the difference between the fair market value of defendant's property immediately before the taking and the fair market value of its property immediately after the taking was from $4,600 to $8,000, constituted substantial evidence from which the jury reasonably could have found that the defendant was entitled to damages of $7,700. The conflicts in the evidence as to values and damages were for the jury to resolve. State ex rel. State Highway Commission v. Dockery, Mo., 340 S.W.2d 689, 695 [6, 7].

The judgment is affirmed.

HOUSER and WELBORN, CC, concur.

PER CURIAM.

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

All concur.


author: HYDE, Judge.

text:
    STATE of Missouri, Respondent, v. Ralph TULL, Appellant.
    No. 50036.
    Supreme Court of Missouri, Division No. 1.
    Feb. 10, 1964.
    Ralph Tull, pro se.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Pendleton Goodall, Jr., Special Asst. Atty. Gen., St. Louis, for respondent.
   HYDE, Judge.

Defendant charged under the Habitual Criminal Act (Sec. 556.280) was convicted of violence to “an officer and guard of the Department of Corrections” and sentenced to five years’ imprisonment. Sec. 216.460. (Statutory references are to RSMo and V.A.M.S.) Defendant was represented at the trial by a lawyer employed by him but has filed his own brief which only claims error in failing to give an instruction on self-defense or to mention self-defense in the main instruction authorizing a finding of guilty.

The State’s evidence showed that on March 13, 1962, Guard William H. Russell looked for defendant in the mess hall line but not finding him went to his cell, saw him there and ordered him to come out. When defendant did so Russell searched him and then ordered him to pull up his sleeves. Defendant first pulled up his left sleeve, then when he pulled up his right sleeve he hit Russell in the face with his fist and Russell knocked defendant down. Defendant got up, scuffled with Russell, ran to his cell, locked the door, and grabbed “an envelope of stuff” from his dresser and “dumped it down” the toilet stool. (Russell said the envelope was one of the things he was looking for when he searched defendant.) Another officer unlocked the door and, when Russell went in, defendant struck him with a chair arm, breaking his wrist, when he put up his left arm to protect his head. Russell said when he got inside the cell defendant “was flushing something down the toilet stool”; but the envelope was on his dresser.

Defendant did not testify but had the testimony of an inmate trusty who was a hall tender and was present when Russell first ordered defendant to come out of his cell to be searched. He testified as follows: “Mr. Russell told him to turn around and he started shaking him down, and he asked him to look at his arms. And Mr. Tull — Mr. Russell was standing to Mr. Tull’s right, and Mr. Tull was standing with his side to me, and Mr. Russell was almost facing me, and Mr. Tull held his left arm out, like this (indicating), and Mr. Russell was standing on his right side and Mr. Russell reached and got his arm and pulled it over closer to him and looked at his arm; and he asked Mr. Tull to hold his other arm up and Mr. Tull held his arm up closer to him and reached across and said something to him. He might have brushed him and hit him in the mouth or nose. Q Who hit who? A Mr. Russell hit Mr. Tull in the mouth or nose. Q. Prior to Mr. Russell hitting Mr. Tull in the nose, had Mr. Tull hit Mr. Russell? A No, sir. Q You stated he may have brushed up against him ? A He could have brushed against him. Q You mean — A When he raised his arm, he could have brushed against him. I didn’t see him, but it’s possible that he did. * * Q Why do you say he might have brushed against him? A Well, for the reason Mr. Tull was standing sideways to me, Mr. Russell was standing almost facing me, and Mr. Tull was between Mr. Russell and I. And he could have brushed him when he raised his arm up. I didn’t say he did, I said he could have. * * * Q Well, you volunteered the statement that Tull might have brushed against Russell? A Yes, sir. Q Why do you volunteer that statement? A He could have brushed against him when he brought his arm up.”

Certainly the state’s evidence was sufficient to make a case for the jury and so the court properly denied defendant’s motion for a judgment of acquittal which is the only ground stated in the motion for new trial (other than complaints about instructions) preserving anything for appellate review. The testimony of the trusty did not contradict Russell’s testimony that defendant struck him in the face after he pulled up his right sleeve. It only showed that defendant brought his right arm up and might have made some contact with Russell but he could not see whether there was or not.

It appears from the record that guards go unarmed inside the penitentiary and that Russell was searching for material inmates were not authorized to have. Certainly defendant had no right to resist performance of his duty by Russell. “The obstruction of or resistance to a public officer in the performance of his duties is an offense at common law and by statute in all jurisdictions.” 3 Wharton’s Criminal Law and Procedure 632, Sec. 1283; see Secs. 557.200-557.220. In State v. White, Mo. Sup., 274 S.W. 17, we said concerning an arrest by an officer: “Under such circumstances the person arrested or sought to be arrested has no right to resist arrest, and if, in making resistance, he assaults the officer with a deadly weapon, he is guilty of felonious assault.” In that case the court gave a self-defense instruction based on testimony that the officer struck defendant, while he was sitting on a bench in a public place, without saying he was an officer and wanted to arrest him until after he struck defendant. There is no issue in this case as to defendant knowing Russell was an officer and his purpose to perform his duty as an officer in making the search and thereafter in entering the cell when defendant was attempting to dispose of material he was trying to find. Sec. 216.445 in part provides: “When * * * a single prisoner offers violence to an officer of a state penal institution * * * or resists or disobeys any lawful command, the officers of the institution shall use all suitable means to defend themselves, to enforce discipline, to secure the persons of the offenders and to prevent any such attempt or escape.” '

Defendant’s brief ignores his act of striking Russell with the chair arm, breaking his wrist, when he started into the cell where defendant was disposing of the material Russell was searching for and when other guards were present. Instead of seeking to justify that act as self-defense he only argues in his brief concerning his use of force when Russell was examining his arms saying the trusty’s evidence: “tends to establish that Tull was not an aggressor and that he was the victim of aggression; that when assailed he sought to avoid conflict ; that when he could free himself from his assailant he retreated into his cell, which was the farthest place he could get in an effort to escape his assailant.” Since defendant did not testify and claim any other reason or purpose, our conclusion is that all the evidence shows his use of violence to prevent an officer from performing his duty, similar to resisting a lawful arrest, and not self-defense. As right of officers to use force and the right of self-defense against illegal action by officers see 4 Am.Jur. 139, 148, 150, Assault and Battery, Secs. 20, 41, 46; 39 Am.Jur. 506, Obstructing Justice, Secs. 8-10; 6 C.J.S. Assault and Battery §§ 23b, 92d, pp. 825, 949 ; 4 Wharton’s Criminal Law and Procedure 292, Sec. 1621. Our conclusion is that the evidence did not require the court to give a self-defense instruction in this case.

Defendant has not briefed his claim that the words “unlawfully” and “violence” used in the instruction authorizing a finding of guilty were not defined but this is without merit because such words in common usage need not be defined. See State v. Holmes, Mo.Sup., 364 S.W.2d 537, 541; State v. Gridley, Mo.Sup., 353 S.W.2d 705, 707.

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

The judgment is affirmed.

All concur.


author: BOHLING, Commissioner.

text:
    STATE of Missouri, Respondent, v. Raymond N. SIMON, Appellant.
    No. 49476.
    Supreme Court of Missouri, En Banc.
    Feb. 10, 1964.

      Theo. F. Schwartz, Charles M. Shaw, Clayton, for appellant.
    Thomas F. Eagleton, Atty. Gen., George W. Draper, II, Asst. Atty. Gen., Jefferson City, for respondent.
   BOHLING, Commissioner.

Raymond N. Simon appeals from a judgement imposing a sentence of three years’imprisonment under the habitual criminal act for stealing property of the value of more than $50. §§ 560.156, 556.280. (Statutory references are to RSMo 1959 and V.A.M.S.) He alleges error in the admission and rejection of evidence and the refusal of instructions.

Mrs. Gertrude Perjenski was a store detective for Stix Baer & Fuller, Inc., a corporation, at its “River Roads” store in Jennings, St. Louis County, Missouri. About 1:30 p. m. August 7, 1961, Mrs. Per-jenski noticed four women and a man looking at mink stoles displayed on hangers on a pipe rack in the basement of the store. The man was looking at one stole after another. The women moved on. The man remained for a few minutes and then left, going up on the escalator. Mrs. Perjenski remained in the basement. In a few minutes she noticed this man return and head for the mink stoles. He was later identified as defendant’s brother Joe Simon. She stationed herself where she could see what was going on “real good.” Joe Simon was the only person at the mink stole rack. About five minutes later defendant, carrying a “satchel,” joined Joe Simon. Defendant opened the satchel, held it open, and Joe Simon “snatched” a mink stole off the rack and dropped it in the satchel “real fast.” Defendant closed the satchel and started out of the store, walking up the stairs. The witness followed him and saw him go to a Thunderbird automobile, open the trunk, put the satchel in the trunk, and get into the car. Mrs. Perjenski returned to the basement and saw Joe Simon just going out of the door on the north side. She followed him. He waited at the northeast corner for some time. Witness stopped a passing police car and asked them to go to the Thunderbird car because she knew the man had a mink stole that belonged to the store in its trunk. There was testimony establishing that the “sale price” of this mink stole was $139.00. Defendant was arrested approximately two blocks from the River Roads store. Later, the mink stole taken from the store was found in a brief case in the trunk of the car.

Defendant’s cross-examination of State witnesses Mrs. Perjenski and Officer Alfred T. Zlotopolski developed that Mrs. Perjenski gave a written statement to the county police department and Officer Zloto-polski made a written report with respect to the arrest of defendant. These writings were not used by either witness in testifying. Defendant’s request that each be produced for his inspection to determine whether or not any discrepancies existed between the writing and the testimony of the respective witness for the purpose of cross-examination was refused. Defendant contends prejudicial error resulted, citing State v. Tippett, 317 Mo. 319, 296 S.W. 132 [7] ; Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, and Bergman v. United States, 6 Cir., 253 F.2d 933, following the Jencks case.

This issue stands ruled against defendant so far as it involves the police report of Officer Zlotopolski in State v. Cochran, Mo., 366 S.W.2d 360[1].

Defendant’s State v. Tippett case was expressly overruled on this issue by Court en Banc in State ex rel. Missouri Pac. R. Co. v. Hall, 325 Mo. 102, 27 S.W.2d 1027, 1028, and see also State ex rel. Page, Pros. Atty. v. Terte, 324 Mo. 925, 25 S.W.2d 459, 461. Speaking to § 510.030 and Criminal Rule 25.19, V.A.M.R., with respect to the production of documents or papers, we quoted in State v. Redding, Mo., 357 S.W.2d 103, 109, the following from State v. Kelton, Mo., 299 S.W.2d 493, 497: “ ‘ “A mere suspicion that it [a document] contains such evidence does not warrant an order for its production.” State ex rel. Page v. Terte, 324 Mo. 925, 25 S.W.2d 459, 462[2, 3]. The production of books and papers under the statute “is not authorized upon the possibility of the impeachment of witnesses or for prying into an adversary’s preparation for trial.” State v. McDonald, 342 Mo. 998, 119 S.W.2d 286, 289[6].’” See also State v. Crayton, Mo., 354 S.W.2d 834, 837[3]; State v. Gilliam, Mo., 351 S.W.2d 723, 727[12]; State v. Miller, Mo., 368 S.W.2d 353.

Palermo v. United States, 360 U.S. 343, 353, n. 11, 79 S.Ct. 1217, 3 L.Ed.2d 1287, and Scales v. United States, 367 U.S. 203, 257, 258, 81 S.Ct. 1469, 6 L.Ed.2d 782 (discussing the Jencks statute, 18 U.S.C. § 3500), are to the effect that the procedure laid down in the Jencks case was a rule of evidence and was not required by provisions of the Federal Constitution. See also State v. Kelly, 249 Iowa 1219, 91 N.W.2d 562, 563 [1-4]. In holding neither the State nor an accused ordinarily has any right to examine the confidential files of the other, the Indiana Supreme Court stated in Anderson v. State, 239 Ind. 372, 156 N.E.2d 384, 385: “The United States Supreme Court in the case of Jencks v. United States, supra, held that ‘justice’ required that the accused be permitted to inspect documents or memoranda of statements made by a witness in the preparation of the case. We do not question the right of the United States Supreme Court to establish rules of practice and procedure for the federal courts. However, we are neither responsible for nor bound by such rules.”

The trial court’s ruling was proper.

Defendant contends the court erred in refusing to give his instruction on an alibi. There was testimony supporting a finding defendant knew nothing about the theft. We have said: “[A] defendant is entitled to have any theory of innocence submitted to a jury, however improbable that theory may seem, so long as the most favorable construction of the evidence supports it.” State v. Kinard, Mo., 245 S.W.2d 890, 893 [5], and cases cited. A jury could find the following facts from defendant’s evidence.

The Simon family operated Evergreen Gardens, Inc., in Florissant. Defendant, in a company-owned Ford Thunderbird, drove his brother Joe to the River Roads store and let him out, telling Joe to meet him in the coffee shop in forty-five to sixty minutes. Defendant proceeded to his brother Don’s home, a ten to fifteen minute drive, for some drawings to replace some shrubs. Finding no one at home, defendant got the plans from the house and returned to the River Roads store. He looked for Joe but did not find him in the coffee shop. He then went into the Stix River Roads store, a very large store. He looked for Joe in the basement and on all three floors. He was in the store thirty to forty-five minutes. He had no brief case. He never saw the stole prior to the trial, did not put it in the trunk of his car, and: “Q When you were in the basement level store, were you by yourself? A By myself. Q Never saw your brother there at any time ? A Other than dropping him off that morning I never saw him. Q You were never with him? A Never with him.”

Joe Simon testified: He entered the store, carrying a brief case, and went to the basement. Fie had a saleslady model the mink stole, but thought it was too expensive. She replaced it on the rack and left. He took the stole five or ten minutes later, put it in his brief case, left the store, saw his company’s Thunderbird, and put the brief case and stole in the trunk of the car. “Q Did your brother in this cause ever have any knowledge of the fact you had the item in the brief case? A Any knowledge I took the mink from the store ? Q Yes. A No, sir. Q And you put it in his car? A Yes, sir. Q At no time was he with you in the store? A No, sir, not in the store; no, sir.”

From defendant’s and Joe’s testimony defendant was in the store looking for Joe at the time Joe took the stole but was not present at the scene at the time the offense was committed, did not participate in the offense and knew nothing about it.

“The word ‘alibi’ means ‘elsewhere; in another place.’” State v. Hubbard, 351 Mo. 143, 171 S.W.2d 701, 706 [11], A defendant does not have the burden of establishing an alibi. If all the evidence, including that on alibi, raises a reasonable doubt as to his guilt he is entitled to an acquittal. State v. Hubbard, supra [11-14]; State v. Taylor, 134 Mo. 109, 152 (7), 35 S.W. 92, 102(7); State v. Edwards, 109 Mo. 315, 322 (III), 19 S.W. 91, 92(3) (stating, in effect, if the defense be considered frivolous, that question is for the jury). It has been considered that: “One phase or application of that rule would seem to be that it is not necessary that the alibi evidence should cover all the time in question so fully, and relate to another place so remote, that it would be physically impossible, if this evidence were true, for the defendant to have committed the crime; but that even if the evidence offered to prove the alibi does not meet these requir-ments, it may be sufficient to raise a reasonable doubt of guilt.” Annotations, 29 A.L.R. 1185 (IV), 1186; 124 A.L.R. 493. 53 Am.Jur., Trial, § 658. State v. Koplan, 167 Mo. 298, 66 S.W. 967[5], 969, held failure to instruct on an alibi constituted reversible error where “defendant testified that he was not present at the commission of the offense.” Fay v. United States (9 Cir.), 22 F.2d 740[4], involving the possession and sale of intoxicating liquor, in holding a defendant was entitled to have the jury pass on his alibi although it be considered inconclusive or even feeble, stated: “and it is not important whether he was miles away, or only a few yards away, from the junk house, if he was not in it at the time the government contends the offenses were committed therein.” In State v. Gammons, 258 N.C. 522, 128 S.E.2d 860 [5], the State’s evidence was that defendant assaulted prosecutrix in his basement bedroom with intent to commit rape; and a failure to instruct on alibi was conceded reversible error where defendant’s evidence was that neither prosecutrix nor defendant was in said room at the time of the-alleged offense. In State v. Spencer, 256. N.C. 487, 124 S.E.2d 175 [1, 3], the State’s: evidence was that the prosecuting witness; was shot by the defendants who were on the ground outside of the “Big Four” building. Defendants were held entitled to an alibi instruction under evidence that they were inside the “Big Four” building at the time the shooting occurred. Moseley v. State, 165 Ga. 290, 140 S.E. 754[2], held evidence that defendant was in an outhouse at the time of a shooting entitled him to an instruction on alibi where the State’s evidence was that defendant fired a gun wounding a companion of the deceased at the time another defendant shot and killed the deceased, and that the shooting occurred on the front porch of a house. Distance from the scene of an offense is not controlling. It goes more to the weight of the evidence than to the submissibility of an alibi. See quotation from Harris v. State, 120 Ga. 167, 47 S.E. 520, 521, in the Moseley case.

The court gave an instruction to the effect that a defendant’s mere presence, without more, at the scene of a crime does not create guilt. State v. Odbur, 317 Mo. 372, 295 S.W. 734, 736[5]; State v. Muchnick, Mo.App., 334 S.W.2d 386, 389. This instruction recognized that there was evidence refuting the State’s theory that defendant was present and participated in the offense, but there was no evidence of record of defendant’s presence and nonpartici-pation in the offense. The instruction gave defendant the benefit of only a portion of his testimony. If he was entitled to have the jury pass on the portion of his evidence submitted in the instruction, he was entitled to have it pass on the whole thereof. The instruction was not sufficiently comprehensive to embrace the whole of defendant’s rebuttal of the State’s case. It ignored evidence in this record without objection tending to establish an alibi. We considered in State v. Chaney, Mo., 349 S.W.2d 238, 241, that instructions, among others, “ 'upon the presumption of innocence and reasonable doubt, and good character when put in issue by the testimony, and also instructions presenting the law upon each defense interposed by the accused, are necessary for the information of the jury.’ ”

The State offers no criticism of defendant’s refused alibi instruction. Its position is that no alibi instruction was required because defendant was an accessory before the fact (§ 556.170) and, therefore, defendant’s presence at the scene at the time of the offense was not a necessary element of his guilt, citing State v. Lawrence, Mo., 71 S.W.2d 740[2]; State v. Millsap, 310 Mo. 500, 276 S.W. 625, 630[11]; State v. Gatlin, 170 Mo. 354, 70 S.W. 885[3], 890. The State’s evidence distinguishes the cited cases from this case in that in the State’s cases there was evidence sustaining the State’s theory that defendant was an accessory before the fact, was not present at and did not participate in the actual commission of the offense; that is, there was evidence that defendant procured or incited another or others (Lawrence and Millsap) or was, with the perpetrator, a member of a conspiracy to commit the offense (Gatlin). The sole theory of the State under its affirmative evidence at the trial was that defendant and his brother Joe were both actually present and physically participated in the offense. There was no probative evidence that defendant was an accessory and was not present. Defendant had the right to rebut the State’s case, and his evidence was offered in rebuttal of the State’s evidence. It covered the whole of the time covered by the State’s evidence. If believed, it refuted the State’s case and defendant was entitled to a jury’s verdict on said fact issue. The State is not reme-diless if false evidence be adduced.

In the circumstances of record, defendant, having tendered a proper instruction, was entitled to have his defense of an alibi submitted. For an instruction sufficiently complete on alibi, see State v. Howe, Mo., 343 S.W.2d 73, 75; State v. Bonner, 259 Mo. 342, 348, 168 S.W. 591, 592[1], State v. Bobbitt, 228 Mo. 252, 271, 128 S.W. 953, 959, held the necessity for an instruction on alibi arose out of the fact the State submitted the case on two theories : “One that the evidence tended to show the actual presence and participation of the defendants in the” offense, “and the other, a conspiracy, in which their presence was not essential”; and see the instruction in State v. Bobbitt, 242 Mo. 273, 285, “9,” 146 S.W. 799, 803[3].

Other points are presented. They may or may not arise upon another trial. Counsel will no doubt consider them in the light of their presentation. We deem it unnecessary to further extend this opinion.

For the error in refusing to give an instruction on defendant’s defense of alibi, the judgment is reversed and the cause is remanded.

PER CURIAM.

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

All concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. Leroy Watson BRYANT, Appellant.
    No. 50135.
    Supreme Court of Missouri, Division No. 1.
    Feb. 10, 1964.
    R. B. Kirwan, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   HOUSER, Commissioner.

Leroy Watson Bryant was convicted of first degree robbery under the habitual criminal statute, § 556.280, V.A.M.S. Sentenced by the court to 20 years’ imprisonment in the penitentiary, defendant has appealed.

Defendant’s brief on appeal urges two points, both of which are technical criticisms of jury instructions. Neither requires a statement of the evidence, the sufficiency of which is not otherwise challenged.

Defendant’s first complaint is directed at Instruction No. 2, which follows:

“The Court instructs the jury that if you believe and find from the evidence in this case, beyond a reasonable doubt, that at the County of Jackson and State of Missouri, on the 12th day of August, 1962, the defendant herein, LEROY WATSON BRYANT, did then and there with force and arms in and upon one Robert J. Beebe, unlawfully and feloniously make an assault with a dangerous and deadly weapon, to-wit: a revolver, loaded with gunpowder and leaden balls, and took and carried away any money or property from his person or in his presence and against his will, by force and violence to his person or by putting him in fear of some immediate injury to his person, with felonious intent to convert the same to his own use without any honest claim to said money or property on the part of the defendant and with intent to permanently deprive the said Robert J. Beebe of his ownership and without the consent of the said Robert J. Beebe, if such be your finding, then you will find the defendant guilty of Robbery, First Degree and so find in your verdict.
.“And, unless you find the facts to be as above stated, you are instructed to acquit the defendant of Robbery, First Degree.
“ ‘Feloniously’ ” means wickedly and against the admonition of the law, that is, unlawfully.”

-Instructions Nos. 3 and 4 related to the presumption of innocence, reasonable doubt, and the proof of intent. Defendant does not complain about Instructions Nos. 3 and 4. Defendant offered no instructions.

Defendant’s attack on Instruction No. 2 is directed at the second paragraph: “And unless you find the facts to be as above stated, you are instructed to acquit the defendant of Robbery, First Degree.” Defendant says the reference to “facts * * * as above stated” was an improper comment by the court; an evaluation of the contents of paragraph one which informed the jury “in so many words that what was recited before were ‘facts,’ ” thus invading the province of the jury, “as they were the ones to determine the facts and not the Court.” Defendant asks whether the jury should not have been instructed that they should base their verdict upon the evidence, and says the language implies that the court has “made an adjudication,” determined what the facts were and was instructing that if the jury agreed with the court as to the court’s findings, “then they should act accordingly.”

This point is without merit. We do not regard the second paragraph of the instruction as an improper comment. It did not invade the province of the jury. It “clearly negatives the idea that the truth of any of the facts therein hypothesized was assumed.” State v. Washington, Mo.Sup., 364 5.W.2d 572, 576. See also State v. Wyatt, Mo.Sup., 276 S.W.2d 86, 89. That, contrary to defendant’s contention, the jury was instructed to base its verdict upon the evidence is plainly demonstrated by considering the first seventeen words of paragraph one.

Defendant cites State v. Fraley, 342 Mo. 442, 116 S.W.2d 17, but that case simply holds that a defendant should not be denied a converse instruction, requested by him, merely because the state’s instruction concludes with the words “and unless you so find the facts to be, you will acquit the defendant.” Here defendant did not request a converse instruction. That case cites State v. Dougherty, 287 Mo. 82, 228 S.W. 786, which holds unnecessary the giving of a converse instruction based on defendant’s denial of the charge, where the state’s main instruction defines the crime charged, states the facts necessary to be found to establish the charge, and closes with the statement that “unless the jury find the facts to be as stated they will acquit the defendant,” and where defendant does not request a converse instruction. In commenting on the effect of the quoted words the court said, 228 S.W., l. c. 788: “This, to the average mind, cannot be construed as otherwise than telling the jury if they find the facts as stated they may convict, but unless they so find them they will acquit. There is therefore no opportunity for the jury to have misinterpreted their province, and more could not have been accomplished if the court had made a converse statement in •detail of the facts which, if found, would have authorized an acquittal. The instructions given, which we have examined for the purpose of enabling us to properly dispose of defendant’s contention, fairly presented the law for the jury’s guidance under the evidence, and, if more was desired, a request should have been made therefor.” We continue to approve this language. If defendant wanted further elucidation on the •subject he should have offered a converse instruction, but as admitted in his brief he ■“submitted no instructions, choosing for weal or woe, a negative course.”

Defendant’s other point is that the court •erred in giving Instruction No. 5, which follows:

“The court instructs the jury that the ■defendant has interposed for a defense what is known as an alibi; that is, that ■even if the crime was committed, he at the time of the commission thereof, was at another and different place than that in which such offense was committed, and therefore was not and could not Rave been the person who committed the same. Now, if the evidence leaves in your mind a reasonable doubt as to Ris presence at the place where the offense was committed at the time of the commission thereof, you will find him not guilty.”

Defendant’s first attack on Instruction No. 5 is that it should have recited “Now, if the evidence when taken as a whole * * * ” instead of “Now, if the evidence * * * ”; that as written it is not certain what part of the evidence (the state’s or the defendant’s) is meant; that it does not inform the jury what evidence must be produced to leave a reasonable doubt in their minds, and is silent as to whether the burden of producing that evidence is on the state or the defendant. This objection is insubstantial. “The evidence” would be taken by the average person to mean the evidence in the case, or all of the evidence, and could not reasonably be understood to be limited to that of one party or the other, in the absence of some language indicative of an intention to -thus restrict its reference.

Defendant’s second attack on Instruction No. S is that it places the burden of proof of alibi upon defendant, whereas the burden of proving that defendant “was there and committed the robbery” was upon the state. This same criticism, leveled at an identical alibi instruction, was rejected by this court less than a year ago in State v. Washington, supra, for the reasons stated in two cases cited in that opinion, 364 S.W.2d, l. c. 577, namely, State v. Williams, 309 Mo. 155, 274 S.W. 427, 435[12], and State v. Prunty, 276 Mo. 359, 208 S.W. 91, 95[5], viz, that where this instruction is given in connection with a proper instruction on reasonable doubt and presumption of innocence, this gives the defendant the full benefit of the defense of alibi and does not place the burden of proof upon him.

We have examined the information, verdict, judgment and sentence, as required by Supreme Court Rule 28.02, V.A. M.R. The charge of robbery first degree is sufficient in all essential respects, but the charge of prior conviction of crime, by which the state sought to invoke the habitual criminal statute, is defective. The information alleged that defendant “on the 10th day of April, 1962, at the County of Wyandotte, State of Kansas, was convicted of a felony, to-wit: Grand Larceny, and was sentenced therefor to serve a term of Five (5) years, * * This is insufficient to invoke the procedure by which the court and not the jury hears the evidence with respect to prior convictions and fixes the punishment, because it fails to allege that defendant was “subsequently placed on probation,- paroled, fined or imprisoned therefor,” as required by § 556.280, V.A. M.S. In State v. Franck, Mo.Sup., 260 S.W.2d 52, an information which failed to allege that defendant was discharged “upon pardon or upon compliance with the sentence,” as required by the wording of the statute then in force, was held fatally defective and the conviction was reversed and the cause remanded. In State v. St. Clair, Mo.Sup., 261 S.W.2d 75, decided under the same statute as Franck, it was held that those facts must be alleged and proved before the habitual criminal statute may be invoked. We rule that the information was fatally defective and that defendant was not subject to the procedure provided by the habitual criminal statute. This defect is not cured by the statute of jeofails. State v. Sumpter, 335 Mo. 620, 73 S.W.2d 760[3]. It is only when the habitual criminal statute is applicable that the court alone fixes the punishment. State v. Kiddoo, Mo.Sup., 354 S.W.2d 883, 886. When the habitual criminal statute is inapplicable it is the function of the jury to determine guilt and punishment “as in other cases.” §: 556.280 (2), V.A.M.S. Defendant therefore had a right to have the punishment fixed by the jury in this case, but the court and not the jury fixed the sentence. The court imposed a sentence of 20 years under the habitual criminal statute. The deprivation of his right to have the jury fix the punishment prejudiced the defendant, for the jury may well have imposed a lesser punishment than that fixed by the court. State v. Young, Mo.Sup., 366 S.W.2d 386, 390; State v. Kiddoo, supra.

We declare the sentence void. In State v. Kent, decided concurrently herewith, the information sufficiently alleged a prior conviction-but the state failed to prove that the habitual criminal statute was applicable. The conviction was reversed. In Kent and in the similar situation in State v. Hill, Mo. Sup., 371 S.W.2d 278, the judgment and sentence were set aside and the causes were remanded for a hearing on the issue of former conviction. In this case, however, where the defect is in the information and not in the proof, the defect vitiates the entire proceeding. The judgment is therefore reversed and the cause is remanded for such further proceedings as may seem appropriate under the circumstances.

COIL and WELBORN, CC., concur.

PER CURIAM.

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

All of the Judges concur.