author: HOUSER, Commissioner.

text:
    Edward D. WEAKLEY, Charlotte G. Mandel and Marluel E. Pohrer, Appellants, v. STATE HIGHWAY COMMISSION of Missouri, Respondent.
    No. 49195.
    Supreme Court of Missouri. Division No. 1.
    Jan. 14, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 11, 1963.

      Boyle, Priest, Elliott & Weakley, Edward D. Weakley, St. Louis, Robert O. Het-lage, St. Louis, for appellants.
    Robert L. Hyder, Ralph H. Duggins, Wil-kie Cunnyngham, Jefferson City, for respondent.
   HOUSER, Commissioner.

Plaintiffs Weakley, Mandel and Pohrer have appealed from the decree of the circuit court finding the issues against them in their suit against the state highway commission to quiet title to two narrow strips of land adjoining Utz Lane and U. S. Highway 66 in St. Louis County. The court decreed that the state, acting by and through the state highway commission, has an easement for highway purposes and the right to use, possess and control these strips, and dismissed plaintiffs’ petition.

Utz Lane and Highway 66 intersect in an unincorporated area of St. Louis County. Utz Lane runs generally NW-SE. Highway 66 runs generally NE-SW. Sam and Bess Brown owned a tract of more than 83 acres of land lying in the southwest corner of these intersecting thoroughfares. On October 4, 1945 a plat of this tract entitled “Airshire Acres” was filed in the office of the recorder of deeds. Highway 66 is marked on the plat as 100 feet wide; Utz Lane 40 feet wide. The acreage, split in the middle by NE-SW Fee Fee Road, was divided on the plat into 22 long rectangular lots of from 3 to 6 acres each, approximately. All of the lots were bounded on the north by Utz Lane. Lot 1, a corner lot containing 6.671 acres, was bounded on the east by Highway 66. Marked on the plat were two shaded areas: a 50-foot strip of the acreage on the east side along Highway 66, and a 5-foot strip on the north side along Utz Lane. The plat, dated September 5, 1945, was signed by a surveying company which certified to the correct showing on the plat of the survey and subdivision of the land, as ordered by Sam Brown. The plat was signed and acknowledged by Sam and Bess Brown, owners of the tract. It was drawn to a scale of 1 inch equals 150 feet. Restrictions were provided with respect to building lines, types of buildings to be built, minimum cost of nonbusiness buildings and the right of any owner of lots 1-22 to enforce the restrictions “by injunction suit or otherwise” was reserved. Important to this lawsuit was the provision that “The five ft. strips adjoining Utz Lane and Fee Fee Rd. and the fifty ft. strip adjoining U. S. Highway 66, as shown etched on the above plat, are hereby dedicated to public use forever.” At the bottom is a certificate by the chairman that the above plat was approved by the St. Louis County Planning Commission on October 2, 1945. There was no indication of an acceptance or approval of the plat by the county council, county court or other governing body of St. Louis County.

In December, 1945 the Browns conveyed the part of Lot 1 of Airshire Acres, which later became Lot 8 of a resubdivision platted in 1946, to J. Clifford and Elbert F. Johnson. In April, 1946 the Browns conveyed the northeastern part of Lot 1 of Airshire Acres to Charles and Corinne Knebel.

On May 18, 1946, a plat entitled “Resub-division of Part of Lot 1 of Airshire Acres” was filed in the office of the recorder of deeds. This plat divided the 6.671 acres of Lot 1 into 8 long rectangular lots of from 85 to 100 feet, approximately, in width, all bounded on the east by Highway 66. The 1946 plat shows Utz Lane as 45 feet wide (whereas it was shown on the 1945 plat as 40 feet wide) ; shows Highway 66 as wider than the 100 feet shown in the 1945 plat, and the NE-SW depth of the lots into which Lot 1 was carved is approximately 50 feet less than the corresponding depth of Lot 1 on the 1945 plat. In other words, the 1946 plat shows no shaded areas for the 5 and 50-foot strips, annd excludes those strips from the area platted. The 1946 plat, dated May 10, 1946, was signed by a surveying company which certified to the correct showing on the plat of the survey and subdivision of the part of Lot 1, as requested, and was signed by Sam and Bess Brown, J. Clifford and Elbert E.' Johnson, owners of the tract. Certain easements shown on the plat were dedicated to the county for public utility and sewer purposes. At the bottom the City Clerk of the City of Florissant certified that the plat was approved by the board of aldermen of the City of Florissant by Ordinancé No. 187 approved on May 13, 1946. There was no indication of an acceptance or approval of the 1946 plat by the county council, county court or other governing body of St. Louis County.

In September, 1946 the Browns conveyed Lot 7 of the resubdivision to Fred J. Hard-esty. Plaintiffs obtained title to their respective portions of the land which was platted as Lot 1 of Airshire Acres by mesne conveyances from the above-named grantees of the Browns. None of the descriptions in any of these mesne conveyances purported to include or incorporate the two strips which are the subject matter of this action. The description of Highway 66 and Utz Lane in the deeds from the Browns to the predecessors in title of plaintiff Weakley, and in the deeds to Weakley, recognized Highway 66 as 150 feet wide and Utz Lane as 45 feet wide.

The land in question and the adjoining properties were annexed by the City of Florissant but the ordinance of annexation was declared unreasonable and void by a decree of the circuit court entered September 6, 1949. At the time of trial this and the adjoining land was part of the Village of Hazelwood.

Plaintiff Weakley testified to the improvements placed by individual owners upon the lots in the resubdivision, and that there was no public user of the 50-foot strip from 1950 to the time of trial. Weakley claimed to have paid taxes on the 50-foot strip, but our examination of the evidence leads to the contrary conclusion. There was no evidence that Mandel and Pohrer paid taxes on the 50-foot strip. When the question of the ownership of the 50-foot strip was first raised and Weakley learned of the plans of the state highway commission to use it in widening Highway 66, he filed a petition with the county council for vacation of the 50-foot strip. In that petition he alleged that he took title to certain lots according to the plat of the resubdivision and that in that plat the etched fifty-foot strip was “dedicated to public use forever.” Weak-ley later abandoned his efforts to secure a vacation of the strip, and it was never formally vacated. Thereafter and in 1961 Weakley, Mandel and Pohrer secured quitclaim deeds to the 5 and 50-foot strips from the original owners, the Browns, and their contention is that the purported statutory dedication to the public was void; that there was no common-law dedication; that if the highway commission obtained any title by reason of dedication it subsequently abandoned and vacated the same by nonuser continuously for 5 years or more; that the Browns had never effectively disposed of their interest in these strips, still held their original title thereto in 1961, and that plaintiffs have succeeded to their interests by quitclaim deeds from the Browns executed in 1961.

The circuit court concluded as a matter of law that the filing of the plat of Airshire Acres with the recorder of deeds effected a statutory dedication of the disputed strips to public use forever, under Chapter 445, Plats, RSMo 1959, V.A.M.S.

Appellants’ initial point is that the court erred in so holding, for two reasons: First, appellants say the plat was void because it “was intended as an addition to the City of Florissant” but they argue that Florissant had no jurisdiction over the area platted, as demonstrated by the final decree of the circuit court setting aside the annexation. To show the Browns intended the 1945 plat of approximately 75 acres as an addition to Florissant, appellants rely solely upon the fact that their 1946 plat of 6.671 acres was submitted to and approved by the board of aldermen; that the Browns would not have so recognized Florissant in 1946 if in the previous year they had intended to create and establish a separate town. The submission of the 1946 plat to the board of aldermen would not have; effected the vacation or invalidation of the 1945 dedication if the latter had been valid. Nor does it necessarily indicate that the Browns intended the land platted in 1945 to be an addition to the City of Florissant. If in 1946 they considered the land annexed,, it would more likely indicate their intent to comply with § 445.030, which prohibits the recording of a plat of land situated in the corporate limits of any incorporated city until it has been submitted to and approved by the common council of such city. The plat is denominated a “subdivision” in certain numbered surveys, not an addition to the City of Florissant. This record does not contain sufficient evidence to support a finding that the Browns intended the subdivision platted in 1945 as Airshire Acres to be an addition to the City of Florissant.

Second, appellants say that to effect a statutory dedication under § 445.070 RSMo 1959, V.A.M.S., a landowner must file a plat of a city, town or village, or an addition thereto, and that Airshire Acres is no city, town, village, or addition; that there is no evidence of intention on the part of the Browns to create or establish a city, town, village, or any addition to any incorporated or unincorporated city, town or village (other than Florissant) ; no evidence that the plat of 22 lots along already-existing Utz Lane and Highway 66, with no new internal streets or other indicia of a community, was intended as a plat of a city, town or village. Respondent, seeking to uphold the finding of a statutory dedication, contends that where persons laying out subdivisions in unincorporated areas have made the “accurate map or plat” required by § 445.010; have drawn the plat as required by § 445.020; have acknowledged, certified and recorded it under §§ 445.030 and 445.-070, and dedicated to public use parcels of ground marked off on the plat, such subdivisions are to be regarded as “towns” within the meaning of Chapter 445, and the county should be held to have acquired title to the areas therein dedicated to public use. In several cases plats of subdivisions in unincorporated areas of counties have been regarded as plats of cities, towns and villages within the meaning of the section now numbered 445.070, when the question of the title of the public to areas of the plat dedicated to public use was in issue. In Winschel v. County of St. Louis, Mo.Sup., 352 S.W.2d 652, the proprietors of certain land platted a subdivision called Lakewood, made up of land in McKenzie’s subdivision in St. Louis County, lying outside the city limits of St. Louis. The parties agreed that there was a valid dedication of Third Avenue, shown on the plat. We said that it was “apparent that such dedication was accomplished by the filing of the above-mentioned plat pursuant to the provisions of * * * (Sections 445.010-445.120, RSMo 1959, V.A.M.S.),” 352 S.W.2d, 1. c. 653, and held that by virtue of the third paragraph of the section now numbered 445.070 the county was vested with title, in trust for use as a public street, to the land dedicated on the plat to the public use as Third Avenue. In Duenke v. St. Louis County, 358 Mo. 91, 213 S.W.2d 492, 495, this Court indicated that the county acquired title to land within the boundaries of a road set aside for public use in a recorded plat of an unincorporated subdivision in St. Louis County. And in Hill v. Hopson, 150 Mo.App. 611, 131 S.W. 357, a suit to restrain the opening of a highway through a certain tract, it was held that an answer stated a defense sufficient against demurrer which alleged that the owners of a 9-acre tract platted, subdivided and laid it out into town lots, blocks, streets and alleys, including the street in question; that the plat was duly executed, signed, acknowledged, certified, filed and recorded, and that the owners immediately offered the several lots and blocks thereby platted for sale and sold them to persons who bought relying upon the streets and alleys as so platted; that the “town” so platted is unincorporated. The lack of an averment that the county court ever accepted the dedication or that there was a user of the street by the public was noted but held immaterial. The court said that “the plat, under the statutes above referred to * * * vests the fee of the .street or alley involved in St. Francois county in trust for the use of the public -there can be no question; for the plat was of an unincorporated town.” 131 S.W., 1. c. 359.

In the instant case we are .not prepared to sustain the holding below that there was an effectual statutory dedication under Chapter 445 and that the state has an easement in the disputed strips by operation of the third paragraph of § 445.070. We are ruling that the public has an easement by common-law dedication and acceptance by a political subdivision of the state, and that in dismissing plaintiffs’ petition the circuit court ruled correctly because plaintiffs are estopped under the undisputed facts. The intention of the proprietors of the land, the Browns, to dedicate these strips to public use was unequivocally manifested by their execution and acknowledgment of the plat containing a formal, written dedication of the strips shown on the plat “to public use forever.” That intention was further shown by the conveyances by which they transferred title to the purchasers of lots in the subdivision. The deeds described the lots according to the plat as recorded in the recorder’s office, and by metes and bounds which recognized Utz Lane and the highway as widened by, and the lots as not including, the strips dedicated to public use. Appellants derived their interests in these controverted strips of land and in the lots platted in the subdivision, either directly from the Browns “or through mesne conveyances from [them], and in pursuance to and in conformity to the plat thereof, as expressly stated in their muni-ments of title, as previously shown. This alone should and does effectually and permanently estop and debar [them] from claiming any interest whatever in the land in controversy.” City of Laddonia v. Day, 265 Mo. 383, 178 S.W. 741 [3], 1. c. 744. Where there is no complete statutory dedication the sale of lots by reference to a plat constitutes a common-law dedication. Moseley v. Searcy, Mo.Sup., 363 S.W.2d 561. And see Byam v. Kansas City Public Service Co., 328 Mo. 813, 41 S.W.2d 945; City of St. Louis v. Koch, 335 Mo. 991, 74 S.W.2d 622; Schell v. City of Jefferson, 357 Mo. 1020, 212 S.W.2d 430. “When [the proprietor of the land] sells and conveys the lots according to a plan which shows •them to be on the streets, he must be held to have stamped upon them the character of public streets. Not only can the purchasers of lots abutting on such streets thus assert their character, but all others.” City of St. Louis v. Clegg, 289 Mo. 321, 233 S.W. 1, 17 A.L.R. 1242. When the Browns conveyed the lots according to the plat showing them to abut these strips dedicated to public use, they impressed upon them the character of public areas.

A common-law dedication must be accepted. Moseley v. Searcy, supra. That the public accepted the strips in question for public use, thereby completing the dedication, is shown by the admitted fact that the property is presently a part of the Village of Hazelwood. Where a tract of land is platted and laid out as a subdivision, the plat recorded, and the territory thereafter taken into an incorporated municipality by extension of the limits, the public ways platted become the public streets of the city, 26 C.J.S. Dedication § 40b (4) ; Newton v. City of Dallas, Tex.Civ.App., 201 S.W. 703; Hall v. Breyfogle, 162 Ind. 494, 70 N.E. 883; Creekmore v. Central Const. Co., 157 Ky. 336, 163 S.W. 194, in the absence of evidence that the municipality, in its ordinance of annexation or otherwise, has excluded and rejected the designated public ways as public streets. As stated in Hall v. Breyfogle, supra, 70 N.E., 1. c. 885: “As an evidence of approval of the addition and of acceptance of the dedication, the town extended its corporation limits to embrace Summit Addition, thus assuming jurisdiction over the territory and all its highways; not only over those established, but over those granted and not opened.” The same rule applies to these strips abutting the lane and highway. Their dedication to the use of the public was not lost to the public by virtue of the change in the character of the subdivision from a subdivision in a county to a subdivision in a village. Public corporations (such as counties, cities, towns and villages) are governmental subdivisions of the state and “changes in their forms,, powers, and obligations do not deprive the public of their rights in public easements, * * Elliott on Roads & Streets, § 116, quoted with approval in Kurtz v. Knapp, 127 Mo.App. 608, 106 S.W. 537, 538.

The judgment of the circuit court is affirmed.

COIL, C., not participating.

HOLMAN, C., concurs.

PER CURIAM.

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

All of the Judges concur.


source: Caselaw Access Project

author: COIL, Commissioner.

license: Public Domain

text:
    Kathryn BELL, Appellant, v. Norman Lee PEDIGO, Respondent.
    No. 49080.
    Supreme Court of Missouri, Division No. 1.
    Jan. 14, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied Feb. 11, 1963.

      Lusser & Morris, Rene J. Lusser, Rene E. Lusser, St. Louis, George Q. Dawes, Republic, of counsel, for appellant.
    Dearing, Richeson & Weier, Will B. Dearing, Hillsboro, for respondent.
   COIL, Commissioner.

Kathryn Bell, appellant here, brought an action to recover $25,000 as damages for the alleged wrongful death of her 6-year-old son Larry. The jury found for the respondent and Mrs. Bell has appealed from the ensuing judgment. She contends the trial court erred in giving instructions. Respondent contends the attacked instructions were correct and that, in any event, appellant failed to make a submissible case. Hereinafter we shall refer to the parties as they were designated in the trial court.

We state the pertinent evidence from a standpoint favorable to plaintiff. Larry, plaintiff’s son, died from injuries he sustained when struck by a truck driven by the defendant on July 28, 1959. Larry, his brother, and three of their cousins were visiting their grandmother who lived on north-south Highway 21 near Belleview, Missouri. A short distance south of her house was an east-west creek spanned by a bridge 43 feet long. The roadway on the bridge was 18 feet wide. Between each bridge railing and the edge of the roadway was a curb rising about eight inches above the roadway’s surface.

The five children went to the creek. Three of the boys went to the creek bed. Larry and his cousin Elaine, aged 10, stood on the curb at the east railing of the bridge about midway from north to south. They stood side by side facing east, Larry on the north and Elaine on the south. Elaine heard an approaching vehicle, looked to the south and saw a northbound truck coming toward the bridge. When she looked to the south Larry was at her side. She looked back to the north to see that Larry was still there but he had gone. She started to look around for him, saw the truck flash by, and later saw Larry lying on the east shoulder off the north end of the bridge. No horn was sounded and she heard no sound from the application of brakes. A witness estimated the distance from the place where Elaine saw the truck when she looked to the south as 125 feet south of the south end of the bridge.

Larry was struck by the right front headlight and fender of the defendant’s truck at someplace in the northwest quadrant of the road on the bridge. The only skid or tire marks were on the bridge about six feet in length and half on and half off to- the north, angling to the west. Larry’s body came to rest at a place 25 to 50 feet north of the north end of the bridge on the east shoulder.

The accident occurred at 7 p. m. It was daylight and visibility was good. The inference is that the road was dry.

A witness who was proceeding south on Highway 21 and who had stopped his automobile 50 to 100 feet north of the bridge in order not to meet defendant’s truck on the bridge, saw Larry move from the bridge railing to the center of the roadway, then north, and then about three feet back to the east (in sort of a semicircle). That witness’s testimony was subject to the interpretation that the boy had, in the semicircle described, traveled a distance of nine feet west, an undetermined distance north, and three feet east from the time he left the east bridge railing until he was struck. As defendant ápproached the bridge his truck was traveling 25 miles per hour; his truck, its brakes, tires, and horn were in good condition; and he could have stopped at that speed under the conditions there in 15 or 20 feet.

Plaintiff submitted her case on humanitarian negligence, hypothesizing that defendant, in the highest degree of care, could have avoided the accident by stopping, slackening, swerving, or warning.

Defendant, in contending that no submissible case was made, as we understand, contends that there was no humanitarian case on any theory because, he says, only by resorting to speculation and conjecture could the jury have found that after plaintiff’s decedent was in imminent peril, defendant, in the exercise of the highest degree of care could have avoided striking Larry. The sole basis for defendant’s argument, according to his brief, is that inasmuch as plaintiff’s witness Elaine fixed the place where she first saw the truck, and another witness estimated that that place was located about 125 feet south of the south end of the bridge and thus about 149 feet from the collision point, and that by taking into account the time consumed by Larry in traveling the distance he traversed from the time he left the curb until he was struck, the truck would have gone only 45 feet and thus the accident could not have happened under plaintiff’s evidentiary theory. We cannot agree. Apparently defendant has failed to take into account the fact that in determining whether there was evidence to support the hypothesis that after plaintiff’s decedent came into a position of imminent peril, defendant, in the exercise of the highest degree of care, could have, by either of the stated acts, avoided striking Larry, we review the evidence from a standpoint favorable to plaintiff and give her the benefit of any part of defendant’s evidence favorable to her which is not contradicted by her own testimony or contrary to her fundamental theory, and that we also give plaintiff the benefit of all reasonable inferences from all of the evidence and disregard all of defendant’s unfavorable evidence. Smithers v. Barker, 341 Mo. 1017, 111 S.W. 2d 47, 50 [1, 2].

So viewing the evidence, it appears that a jury reasonably could have found that from the time Larry left the east bridge railing until he was struck he traveled a distance of at least 15 feet. He traveled nine feet to the center of the highway, an undetermined number of feet north, and three feet to the east. The inference that he traveled at least three feet north is a most reasonable one and a conservative estimate of that distance from all the evidence. There was no direct evidence as to the speed at which Larry ran, but it has been said that it is a matter of common knowledge that a jury could have found that he moved at a speed of five to six miles per hour. Bunch v. Mueller, 365 Mo. 494, 284 S.W.2d 440, 445 [9].

If Larry traveled 15 feet at a speed of five miles per hour, he used two seconds from the time he left the east railing of the bridge until the time he was struck. There was a collision, so that plaintiff is entitled to the conclusion that when Larry left the east railing the truck was at least two seconds away from the point of collision. (It may well have been three seconds away because probably a second was consumed in Elaine’s looking to the south and back to the north. But for present purposes we shall assume, favorably to defendant, that the truck was only two seconds away.) The truck traveled at a speed of 25 m. p. h. to the point of collision and thus, when two seconds away, was 73 feet away. Defendant testified that he could have stopped in 15 to 20 feet. Assuming, again favorably to the defendant, that the distance so stated did not include reaction time, which we shall assume was three fourths of a second, or an additional 28 feet, defendant could have stopped in 48 feet. Thus the jury reasonably could have found that defendant could have stopped and thus and thereby have avoided the accident.

• It follows, under the facts in evidence, that inasmuch as defendant could have stopped, a jury reasonably could have found also that defendant could have avoided striking Larry by slackening or swerving.

Plaintiff was not bound by her witness’s estimate of the distance the truck was from the point of collision at the time Elaine first saw it, where, as here, the estimate was not inconsistent with plaintiff’s theory of the case. Lay v. McGrane, Mo., 331 S.W.2d 592, 596[3-5]. (As a matter of fact, as noted, even under the assumptions we have made as to speed and distances, etc., it could well be found that the truck was 107 feet away instead of 73 feet at the time Larry left the east railing of the bridge.) The jury was entitled to believe all or none of the testimony of any witness or to accept it in part and reject it in part. Kickham v. Carter, Mo., 314 S.W.2d 902, 905 [1].

Plaintiff contends the trial court erred in giving this instruction D-6 at the request of defendant: “The charge laid by Plaintiff against the Defendant is one of negligence. You cannot presume that the Defendant in this case was negligent. In other words, Plaintiff may recover on said charge against Defendant of negligence only if such charge is sustained by the preponderance, that is, the greater weight, of the credible evidence, to the reasonable satisfaction of the Jury that the charge is true as laid, and it does not devolve upon the Defendant to disprove the charge but rather the law casts the burden of proof in respect of it upon the Plaintiff, and such charge of negligence must be sustained by the preponderance, that is, the greater weight, of the credible evidence, to the satisfaction of the Jury as above stated.”

Plaintiff argues that by reason of its requirements that plaintiff must have sustained his “charge” of negligence against defendant by the greater weight of the credible evidence to the reasonable satisfaction of the jury and in another place b.y. the greater weight of the credible evidence to the satisfaction of the jury, the instruction placed a greater burden of proof upon plaintiff than she properly had, viz., to prove her case by a preponderance of the evidence. Thus, once again, we have for consideration these “satisfaction” phrases which have long and often been criticized and condemned, but which, amazingly, continue to be used in burden of proof instructions. This court said as long ago as 1935 in Rouchene v. Gamble Construction Co., 338 Mo. 123, 89 S.W.2d 58, 63 [12], that a proper burden of proof instruction should consist of a statement as to which party had the burden, accompanied by a “clear definition of preponderance of evidence, informing the jury that what is meant thereby is evidence which is more convincing to them * * * than that which is offered in opposition thereto.”

Since that time many cases have considered the phrases in question where one or the other has been used and, in some instances, where both phrases have been used in the same instruction as in the present case. In Seago v. New York Cent. R. Co. (1942), 349 Mo. 1249, 164 S.W.2d 336, 340, 341, 147 A.L.R. 372, this court pointed out that a burden of proof instruction which required plaintiff to prove “to your satisfaction by a preponderance or greater weight of the testimony” denoted a greater degree of proof than a requirement that plaintiff prove his case by a preponderance or greater weight of the evidence. The court there suggested that inasmuch as that case was being reversed and remanded for error in another instruction, it would not decide whether the burden of proof instruction constituted reversible error, but that what the court had said about it should be “a sufficient warning to the bar and trial courts to observe the admonition in the Rouchene case, supra, as to burden of proof instructions.”

In Johnson v. Dawidoff (1944), 352 Mo. 343, 177 S.W.2d 467, 472 [8], the phrase “to the reasonable satisfaction of the jury” in the burden of proof instruction was criticized as casting a greater burden on plaintiff than required by law. And in Padgett v. Missouri Motor Distributing Corp., Mo. (1944), 177 S.W.2d 490, 492, the court again criticized an instruction like the present one in so far as the use of both the phrases “to the reasonable satisfaction” and “to the satisfaction of the jury” is concerned, and upheld the trial court’s action in granting a new trial for error in giving the instruction for the use of those phrases, along with other objectionable language used therein. The next year this court again criticized a burden of proof instruction using the phrase, to the reasonable satisfaction of the jury, in Stumpf v. Panhandle Eastern Pipeline Co. (1945), 354 Mo. 208, 189 S.W.2d 223, 229 [13, 14].

In 1949, however, in the case of Pulse v. Jones, Mo., 218 S.W.2d 553, 556, 557[6], this court held that a burden of proof instruction containing the words "to the reasonable satisfaction of the jury” correctly stated the “yardstick as to burden of proof in a civil cause.” At the same time, the court observed that if the word “reasonable” were omitted, the instruction would thereby be reversibly erroneous. Also in 1949, subsequent to the Pulse case, supra, this court in Rasp v. Baumbach, Mo., 223 S.W.2d 472, held that an instruction which used both the phrases “to the reasonable satisfaction of the jury” and “to the satisfaction of the jury” came within the rule of the Pulse case and that “to the reasonable satisfaction of the jury” did not improperly increase the burden, but that the omission of the word “reasonable” was improper. The court held, however, that based upon the entire submission, particularly in view of the fact that an instruction had been given in that case which told the jury that if it found the facts as submitted in plaintiff’s verdict-directing instruction, then plaintiff had met and carried the burden of proof required under the law and the other instructions, that the burden of proof instruction, even though erroneously containing the expression “to the satisfaction of the jury” was not reversibly erroneous. Again in 1949, in Randolph v. Supreme Liberty Life Ins. Co., 359 Mo. 251, 221 S.W.2d 155, 157[4-6], the court en banc held that it was not error for the trial court to refuse to give a burden of proof instruction because “the instruction contained the often criticised clause requiring proof ‘to the satisfaction of the jury.’ ” 221 S.W.2d 158.

Thereafter, in 1952, in Pulley v. Scott, 362 Mo. 1217, 247 S.W.2d 767, 769[2], this court said the giving of an instruction which required the jury to find that plaintiff had to sustain his burden of proof by the greater weight of the credible evidence to the reasonable satisfaction of the jury was a sufficient reason for the trial court to grant a new trial.

In 1953 in Machens v. Machens, Mo., 263 S.W.2d 724, 731, 732, this court -held that a burden of proof instruction in a will contest case which used the expressions “by a preponderance of the evidence and .to your satisfaction” and “to your satisfaction by a preponderance of the evidence” was erroneous under the rule announced in Pulse v. Jones, supra, but that examining the entire submission the instruction in that case did not constitute reversible error, particularly in view of the fact that another instruction correctly stated the burden of proof to be by a preponderance of the evidence.

In Hustad v. Cooney, Mo. (1958), 308 S.W.2d 647, 650, 651, the court held that a burden of proof instruction employing the phrase “to your reasonable satisfaction” was not in the circumstances of that case “so prejudicially erroneous as to demand the granting of a new trial.”

In 1958 in Ilgenfritz v. Quinn, Mo., 318 S.W.2d 186, this court affirmed the order of the trial court granting a new trial because it had erred in giving a burden of proof instruction containing the direction that the charge of negligence had to be sustained by “the preponderance, that is, the greater weight of the credible evidence to the satisfaction of the jury * * One of the judges, concurring in result, pointed out that a burden of proof instruction in a civil case which requires plaintiff to prove his case to the satisfaction of the jury or to the reasonable satisfaction of the jury places a greater burden on a plaintiff than the law requires and that instructions containing either phrase are prejudicially erroneous irrespective of the trial court’s ruling on a motion for new trial.

In Highfill v. Brown, Mo., 320 S.W.2d 493, 497, in January 1959, this division ruled (perhaps what was said on the subject is obiter dictum), one judge concurring in result, that a burden of proof instruction which contains either phrase “to the satisfaction” or “to the reasonable satisfaction” of the jury should not be given.

In March 1959, in Alberty v. Sunshine Biscuit Co., Mo., 321 S.W.2d 418, 420, 421, this court held that a burden of proof instruction which contained the identical phrases used in the present case, i. e., “to the reasonable satisfaction of the jury” and “to the satisfaction of the jury, as above stated,” was erroneous for several reasons, among them being that “to the satisfaction of the jury” placed a greater burden on the plaintiff than the law required, and reversed and remanded the case because all of the errors in the instruction had not been cured by other instructions.

Two months later, in May 1959, the court en banc in a 5-2 decision, in State v. Swinburne, Mo., 324 S.W.2d 746, 749, held unequivocally that the requirement of “satisfaction” or “reasonable satisfaction” denotes “a degree of proof substantially greater than a preponderance of the evidence; * * *.” It is true that Swinburne was a criminal case and that the holding was that an instruction using the phrase “if you are reasonably satisfied by the greater weight or a preponderance of the evidence” was erroneous as increasing the legal burden resting on defendant to prove insanity by a preponderance of the evidence. The fact remains, however, that the unqualified conclusion that the requirement of “satisfaction” or “reasonable satisfaction” denotes a substantially greater degree of proof than does the requirement that a thing be proved by a preponderance of the evidence, is a statement of a principle of law equally applicable to civil and criminal cases. It is applicable in any case and as to any party in any case where the burden required by law is to prove a case or a defense by a preponderance of the evidence.

In March 1962 Division 2 in State v. Adams, Mo., 355 S.W.2d 21, followed the holding in State v. Swinburne, supra, that the phrases “satisfaction” and “reasonable satisfaction” substantially increase the legal burden of proof when that burden is to prove by a preponderance of the evidence.

The foregoing review of cases is not and is not meant to be complete in the sense that it discusses each case which has dealt with the question here present. The foregoing is sufficient, however, to indicate that the questions involved are not new. We should also point out that all the cases reviewed, save the one last cited, viz., State v. Adams, supra, were published in the Southwestern Reporter prior to the time the present case was tried on May 10, 1961.

Despite the many warnings concerning the frequent condemnations of burden of proof instructions containing either or both phrases “to the satisfaction” or “to the reasonable satisfaction,” the fact remains that it is probable that the law at the time' this case was tried, in so far as it concerned a burden of proof instruction in a civil case, was that the inclusion of the phrase "to the reasonable satisfaction of the jury” was not erroneous but that using the phrase “to the satisfaction of the jury” was erroneous, and reversibly erroneous unless it could be said that some other instruction or some other circumstance cured the error. We say it was probable that such was the law; we probably should say that such was the rule in so far as parties litigant should be charged with knowledge in preparing instructions on burden of proof in civil cases. The truth of the matter is that the law or rule has been as declared by the court en banc in State v.' Swinburne, supra, ever since the date of that opinion. Be that as it may, however, we should not feel justified, as of now, in reversing a case because of a burden of proof instruction which contained only the phrase “to the reasonable satisfaction of the jury.” We do believe, however, that, as of now, we should reverse and remand a case wherein there was a burden of proof instruction which contained the expression “to the satisfaction of the jury” unless that erroneous direction was somehow cured.

We have heretofore set forth the burden of proof instruction in the present case and it will be recalled that it contains this language: “* * * only if such charge is sustained by the preponderance, that is, the greater weight, of the credible evidence, to the reasonable satisfaction of the Jury that the charge is true as laid, and it does not devolve upon the Defendant to disprove the charge but rather the law casts the burden of proof in respect of it upon the Plaintiff, and such charge of negligence must be sustained by the preponderance, that is, the greater weight of the credible evidence, to the satisfaction of the Jury as ■above stated.”

Defendant contends that the last phrase of the instruction, “to the satisfaction of the Jury as above stated,” can only mean “to the reasonable satisfaction of the jury” because 1 that was what was stated above and, consequently, the instruction should be read as though it had in both places stated, “to the reasonable satisfaction of the jury.” While we agree that such a construction is a possible one, we are of the view that it is no more reasonable or likely than other possible constructions of the language used. The whole phrase which was “above stated” was “to the reasonable satisfaction of the Jury that the charge is true as laid.” It may well be that a jury would believe that the reference, “as above stated,” was to the part omitted from the phrase stated above, i. e., “that the charge is true as laid,” and that it was to obviate the repetition of those words that the three words “as above stated” were used. • Just as reasonable also, it seems to us, is another possible construction. If the words “to the satisfaction of the Jury as above stated” referred to the words “the reasonable satisfaction of the Jury,” the jury may well have understood that under the instruction there was no difference in the legal effect and meaning of the expressions “reasonable satisfaction” and “satisfaction,” and that, consequently, the jury was required to find that plaintiff had sustained the “charge” by the preponderance, that is, the greater weight, of the credible evidence to their satisfaction.

There was no other instruction given in this case which under any theory could have affected the direction as to burden of proof or which could have in any way clarified the meaning of instruction D-6. The case does not come within the rule of Machens v. Machens, supra.

We are of the view, therefore, that instruction D-6 is reversibly erroneous under the presently applicable rule as heretofore enunciated in Pulse v. Jones, supra, and in subsequent cases.

We are of the further opinion that the, rule declared by the court en banc in State v. Swinburne, supra, to the effect that a burden of proof instruction which requires that one prove his case (or his defense) by a preponderance, that is, the greater weight of the credible evidence, either to the satisfaction, or to the reasonable satisfaction, of the jury requires a degree of proof substantially greater than a burden of proof instruction which requires a plaintiff to prove his case or a defendant to prove a defense by the preponderance, that is, the greater weight of the credible evidence, is obviously applicable in any case in which the legal burden of proof is by a preponderance of the evidence. And there is no doubt that this court is committed to the view that a burden of proof instruction which requires a substantially greater burden of proof than the law requires is erroneous.

Upon reconsideration, it seems unlikely that an instruction requiring the proper burden of proof given in the same case in which an instruction requiring a greater and therefore wrong burden of proof was also given, could cure the erroneous instruction unless it completely negatived it and said in so many words that the jury should completely disregard it. At best, the instructions would be conflicting and, together, confusing. No one with confidence could say which instruction was followed. Once it is recognized, as the court en banc has held in State v. Swinburne, supra, that the "satisfaction phrases,” whether or not qualified by “reasonable,” require a substantially greater burden of proof than the law casts upon a plaintiff or defendant in a civil case, it must follow that such an erroneous instruction cannot be cured by another instruction stating the correct rule. That is because the instruction affirmatively misdirects. Such an instruction comes under the rule that an instruction (here a verdict-directing instruction) which is incomplete may be cured by other instructions, but one which misdirects cannot be aided by other instructions or by a failure to ask for more specific instructions. Wilson v. Kansas City Public Service Co., Mo., 291 S.W.2d 110, 117[12-16].

We hold that from and after the date when this opinion shall have been printed in the Southwestern Reporter advance sheets, burden of proof instructions in civil cases which contain either the phrase indicating that one’s burden is to prove his case or defense by the preponderance, that is, the greater weight of the credible evidence “to the satisfaction of” or “to the reasonable satisfaction of,” the jury (or any combination of those phrases or' words of similar meaning), will be reversibly erroneous.

The judgment is reversed and the case remanded.

HOLMAN and HOUSER, CC., concur.

PER CURIAM.

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

All concur.


author: CROSS, Judge.

text:
    Bernice STALLMAKER, Jesse M. Janes and Alta B. Janes, Respondents, v. GREAT AMERICAN INSURANCE COMPANY OF NEW YORK, a corporation, Appellant.
    No. 23700.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      John C. Risjord, Gordon, Sanders, Adams & Niewald, Kansas City, for appellant.
    Lillie Knight, Kansas City, for respondents.
   CROSS, Judge.

This is a suit on an insurance policy, against the defendant insurance company, to recover indemnity for windstorm damage to a dwelling house covered by the policy. The cause was tried to a jury. At the conclusion of all the evidence, and at the direction of the trial court, the jury returned a verdict in defendant’s favor. Thereafter the trial court entered its order and judgment setting aside the verdict and granting a new trial. The defendant has appealed.

In the petition as originally filed, the plaintiffs were named as Perrin D. McEl-roy, Administrator of the -Estate of Rebecca J. David, deceased, and Jesse M. Janes and Alta B. Janes, husband and wife. The allegations of the petition are to the effect that Mr. and Mrs. Janes purchased the dwelling house by entering into contract with Rebecca J. David for a deed thereto; that defendant issued a policy of insurance in the amount of $2500.00 indemnifying plaintiffs from loss or damage to the dwelling house by windstorm; that while the policy was in force the insured property was damaged by windstorm; that although plaintiffs gave due notice of the loss and complied with all policy terms and conditions, defendant vexatiously and without just cause failed and refused to pay their loss. Plaintiffs pray judgment in the total sum of $2400.00 for the loss and damage suffered, interest thereon, and for further awards claimed due by reason of defendant’s vexatious refusal to pay the loss and damage. '

On the first day of trial, prior to its commencement, and on application of plaintiffs, the trial court permitted the substitution of Bernice Stallmaker (daughter of Rebecca J. David) as party plaintiff in place of Perrin D. McElroy, who previously had been discharged as administrator of the estate of Rebecca J. David, that estate having been closed.

After the above noted substitution of parties had been made, the defendant tendered into court, under the provisions of Civil Rule 77.24, V.A.M.R. the sum of $487.07. The tender was accompanied by the following statement made by defendant’s counsel:

“ * * * This represents the sum of $403.20 as a judgment, $41.37 interest, and $16.50, which is the accrued costs to date. The express reason for tendering this money into court is that we are confessing this amount, and in the event that the plaintiff sees fit not to accept the sum, to then assess any costs that accrue from and after this tender against the plaintiff, in the event the final judgment would be less than what we have done”.

In response to the trial court’s question, “How are you tendering it?”, defendant’s counsel stated further:

“In the form of a certified check— made payable to all the named plaintiffs, as they appeared just before today, which were Perrin D. McElroy, Administrator of Rebecca J. David, Jesse Janes and Alta Janes.
* * * * * *
“We have tendered it to the clerk and the clerk refused to take it for the reason it was not made payable to the Clerk of the Court. We would like at this time for the Court here to order the Clerk to accept this tender as it is, made payable to the parties who are the plaintiffs in this lawsuit, and who would be entitled to the proceeds of this tender”.

Thereupon, the trial court dictated an order, quoted as follows:

“John J. McFadden, Clerk: You are hereby directed to receive and retain for deposit the check made payable to Perrin McElroy, Administrator of the Estate of Rebecca J. David, Jesse M. Janes and Alta B. Janes, in the amount of $488.07, in case No. 628,849, to be held as a tender in said matter so that in the event a judgment should be rendered in an amount less than $488.07, less court costs, then all costs accruing from and after the time of this tender, prior to trial, shall be assessed against the plaintiff”.

After other proceedings and discussion which have no relevance to this appeal, the jury was duly empaneled and heard the testimony, which, however, is not included in the transcript. At the conclusion of all the evidence, the trial court sustained defendant’s motion for a directed verdict on the ground that plaintiffs had not established that they were persons insured by the policy. As the court directed, the jury returned its verdict in defendant’s favor, and judgment was entered thereon.

In due time, plaintiffs filed their motion to set aside the court’s order directing the verdict in favor of defendant and for a new trial. The trial court sustained plaintiffs’ motion and granted a new trial for the following stated reasons:

“1. Because the court erred in directing said verdict for the defendant on the ground that plaintiffs Jesse M. Janes and Alta B. Janes were not insureds under the contract of insurance for the reason that defendant’s, tender into court of the amount of its estimate of the damages due, together with interest and costs, was a judicial admission that defendant is indebted to the plaintiffs in the amount tendered, and under the decisions of our courts was an irrebuttable admission of its liability to these plaintiffs, under said contract of insurance.
“2. Because the court erred in permitting the defendant to defend said action on the ground that these plaintiffs were not insured under said contract of insurance, after the defendant had admitted its liability to these plaintiffs by the aforesaid tender, and by the admission of its answer to-plaintiffs’ petition, wherein defendant admitted that it had insured the plaintiffs as. alleged in Paragraph 3 of their petition.
“3. Because the court erred in directing said verdict after the defendant had admitted it was indebted to these plaintiffs”.

In this appeal, defendant challenges the propriety of the trial court’s order granting a new trial by traversing the grounds stated by that court as the basis for such order. Specifically, defendant contends: (1) its answer is not evidence of liability under the policy, and (2) the tender of funds into court was not a judicial admission of liability under the policy or an admission of indebtedness in the amount of the tender. We first consider the latter contention.

It is the rule of courts generally that a tender or payment into court is an admission of liability on a debt or obligation, at least to the extent of the amount tendered. 52 Am.Jur., Tender, Sections 37, 38, p. 242. This rule is observed by Missouri courts. In Knight v. Firemen’s Insurance Company of Newark, N. J., 227 Mo.App. 426, 49 S.W.2d 682, this court said, “A tender is in the nature of a judicial admission that the amount tendered is actually due. Berman v. Hoke, 61 Mo.App. 376; Wells v. Missouri-Edison Electric Co., 108 Mo.App. 607, 616, 84 S.W. 204. The offer was an irrebuttable admission of indebtedness to the extent of the tender, regardless of the outcome of the action. 26 R.C.L. 650”. The foregoing is essentially restated in Williams v. Farm Bureau Mutual Insurance Company of Missouri, Mo.App., 299 S.W.2d 587, in this language: “Of course, a tender by defendant constitutes an irre-buttable admission that, regardless of the outcome of the action, defendant was indebted to plaintiff at the time of institution of suit, to the extent of the tender”. Also see Duffy v. Barnhart Store Co., Mo.App., 202 S.W.2d 520; Scofield v. American Mutual Insurance Co., 227 Mo.App. 166, 52 S.W.2d 205; Willis v. American National Life Insurance Co., Mo.App., 287 S.W.2d 98; Kansas City Transfer Co. v. Neiswanger et al., 27 Mo.App. 356; Williamson v. Baley, Mo.Sup., 78 Mo. 636.

Manifestly, defendant has brought itself within the operation of the foregoing rule by its unqualified tender into court of a sum which “represents * * * a judgment”. That act constituted an irrebuttable judicial admission that regardless of the outcome of the trial, defendant was indebted to the plaintiffs “who would be entitled to the proceeds of this tender” in at least the amount tendered. Defendant went even beyond the naked act of tender, and confessed entry of a judgment against itself by stating to the court these specific words: “The express reason for tendering this money into court (‘the sum of $403.20 as a judgment’, interest and costs) is that we are confessing this amount * * *

Clearly, since plaintiffs were entitled to recover a judgment in some amount, and to an extent of at least $403.20 (with interest and costs to date of the tender), it was error for the trial court to direct a verdict and enter a judgment in defendant’s favor. And, since the trial court has corrected that error by granting a new trial, we deem it to be the duty of this court to affirm that court’s action.

It is of no comfort to defendant, or of any materiality, that the check in question named Perrin McElroy (administrator) as one of the payees instead of Bernice Stall-maker, the substituted plaintiff. The check was tendered into court and deposited with the clerk upon order of the court at a time after Stallmaker had been substituted as a plaintiff in place of McElroy. Defendant tendered and deposited the check under the provisions of Civil Rule 77.24, admittedly for its own beneficial purpose—to' relieve itself of additional costs in the event plaintiffs did not recover a larger sum than the amount tendered. It will be assumed, therefore, that defendant made the tender in accordance with the basic requirement of the rule it had invoked, to-wit: that “the defendant shall * * * deposit with the clerk, for the use of the plaintiff, the amount of the debt or damages he admits to be due * * (Emphasis supplied). Consequently, defendant is estopped to deny (as it attempts to do) that it made the tender and deposit for the use of the parties who were at that time (and still are) plaintiffs in this case.

It is not necessary for us to determine whether defendant admitted liability to plaintiffs by the effect of its answer. Defendant’s judicial admission of liability and its tender of funds into court as a confession of judgment are sufficient reasons to support the trial court’s entry of an order granting a new trial.

Accordingly, the order and judgment of the trial court is affirmed, and the cause is remanded for a new trial in accordance therewith.

All concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Nick CIVELLA, Appellant. STATE of Missouri, Respondent, v. Louis CANGELOSE, Appellant. STATE of Missouri, Respondent, v. Tom Joseph CACIOPPO, Appellant.
    Nos. 23672-23674.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      James Patrick Quinn and Alex Peebles, Kansas City, for appellants.
    William A, Collet, Pros. Atty.,, Carrol C. Kennett, Asst. Pros. Atty., Kansas City, for respondent.
   PER CURIAM.

Before us are the consolidated appeals of Nick Civella, Louis Cangelose, and Tom Joseph Cacioppo, each of whom upon his plea of guilty to the misdemeanor charge of unlawfully possessing “certain gambling equipment, to wit: dice or crap table and dice” contrary to Section 563.374 RSMo 1959, V.A.M.S., was by the Circuit Court of Jackson County fined $500.00 and sentenced to six months in the county j ail.

Appellants have challenged the jurisdiction and power of the circuit court to impose the mentioned fines and imprisonment for the reason that the face of the informations disclosed that the misdemeanor charge was barred by the one year statute of limitations set forth in Section 541.210 RSMo 1959, V.A.M.S.

A chronological statement of the facts is necessary to an understanding of the legal questions involved. Nick Civella was indicted by a Jackson County Grand Jury, and the indictment, C-30343 was filed in the circuit court on September 10, 1960. The indictment was drawn in accordance with Section 563.370 RSMo 1959, V.A.M.S., “keep a certain table and gaming device,” the allegations of which indictment provided, “ * * * on or about the 10th day of May, 1958, one Nick Civella, * * * did then and there unlawfully, wilfully feloniously and intentionally keep a certain table and gaming device commonly called a crap table and dice, adapted and devised for the purpose of playing a game of chance, commonly called dice for money and did then and there unlawfully and feloniously entice, permit and induce divers persons to bet and play at and upon said table and gambling devices * * *.”

The above described indictment was for a felony and the three year statute of limitations, Section 541.200 RSMo 1959, V. A.M.S., was applicable. We note that since the offense was alleged to have occurred on May 10, 1958, and the indictment was returned and filed in court on September 10, 1960, the indictment and its charged felony offense were well within the mentioned three year statute of limitations period applicable to such felonies.

On November 4, 1960, an assistant prosecutor filed Information No. C-30343 in lieu of Indictment No. C-30343. This information also charged a felony, the only change from the indictment being that the information charged the same offense in more detail. This information with its charged felony offense was also well within the three years allowed by the mentioned Statute of Limitations for such felonies.

On January 12, 1962, the assistant prosecutor filed an Amended Information, C-30343, which reduced the charge from a felony to a misdemeanor. The amended information was drawn under Section 563.-374 RSMo 1959, V.A.M.S., and read in part that Nick Civella “ * * * on or about the 10th day of May, 1958, * * * (did) unlawfully possess certain gambling equipment, to wit: dice or crap table and dice; ‡ ⅝ ⅜ ÍJ

The facts as set out above, other than the name of the particular accused, are identical for all three appellants except that the indictment and informations against Cangelose stated the date of the offense charged as being October 24, 1957, rather than May 10, 1958.

To these charges each appellant had entered a plea of not guilty. After the amended informations charging a misdemeanor had been filed and on January 12, 1962, each appellant withdrew his plea of not guilty and entered a plea of guilty to the misdemeanor charged. The circuit court accepted the pleas of guilty and deferred judgment and sentence. Eventually, and on March 2, 1962, the circuit court pronounced judgment and sentence, a fine of $500.00 and a 6 months’ jail term, for each appellant. These appeals followed.

Section 541.210 provides: “No person shall be prosecuted, tried or punished for any offense, other than felony, or for any fine or forfeiture, unless the indictment be found or prosecution be instituted within one year after the commission of the offense, or incurring the fine or forfeiture.”

As an aid to an understanding of the various dates involved, the following diagram is helpful:

-A-
May 10, 1958
Date of the offense in all charges, except Cangelose’s date was October 24, 1957.
-B-
September 10, 1960
Date Indictment for a felony was filed in court.
-C-
November 4, 1960
Date Information for a felony was filed in lieu of Indictment.
-D-
January 12, 1962
Date Amended Information was filed in Court reducing felony to a misdemeanor and date defendants pleaded guilty to misdemeanor.

The basic question presented is whether the quoted limitations statute applicable to misdemeanors deprived the circuit court of power or jurisdiction to accept the pleas of guilty to the misdemeanors charged and to assess punishment.

It is the State’s position that the defendants in a criminal proceeding may bind themselves by agreement; that the defendants “to save themselves from exposure to felony convictions prevailed upon the State to substantially reduce that exposure by an assurance, through their counsel, that they would plead guilty to a lesser charge with lesser penalties;” and after having received a stiffer punishment (a jail sentence) from the circuit court than they anticipated cannot now challenge the amended information or the circuit court’s judgment and punishment.

For convenience of treatment we shall divide up the rather general contentions of the state into specific questions. First, upon an indictment or information for a larger crime (a felony) at a time beyond the period of statutory limitations upon a lesser crime (a misdemeanor) whose elements are included within the larger crime, may the accused he convicted by trial or by plea of the lesser offense?

The question presented is not new and nearly all of the states at one time or another have ruled on it. For a summary of their views we quote from a recent and thorough annotation on the subject contained in 47 A.L.R.2d 887, “Limitations Statute — Lesser Offense”, loe. cit. 888, “The overwhelming weight of authority is to the effect that one cannot be convicted of a lesser offense includible within a larger crime, where prosecution for the latter was commenced after expiration of limitations applicable to the lesser offense.” It is further stated in that annotation, loe. cit. 888, “And the rule has been held applicable even though a statute expressly provides that upon indictment for the larger crime one may be convicted thereunder of certain lesser offenses included within it, * * See, also 47 A.L.R.2d loc. cit. 892, Section 7.

That the above is the well established rule in the United States is further illustrated by quotes from our recognized text authorities on the subject. In 22 C.J. S. Criminal Law § 225(3), page 584, it is stated, “The general rule, however, is that if, on an indictment for a crime, accused is found guilty of some less crime included therein, and which constitutes a part of it, the conviction cannot be sustained, where the crime for which he is convicted is barred by the statute of limitations, although the crime of which he was indicted is not thus barred.” It is noteworthy that among the supporting citations for this statement of the rule is the Missouri case of State v. Chevlin, Mo.Sup., 284 S.W.2d 563.

In 15 Am.Jur., Criminal Law, Sec. 343, page 33, it is expressed, “It frequently happens that a charge of felony includes an offense of a lower grade with a different period of limitation, so that, while the felony is not barred, the statute has run as to the lesser offense. In this situation, the rule is that if the statute has not run against the felony, while the lesser offense is barred, the bar cannot be evaded by indicting the defendant for the felony and convicting him of the lesser offense.”

Typical of the many Federal Court decisions on the subject is Chaifetz v. United States (1960), 109 U.S.App.D.C. 349, 288 F.2d 133, 135, “The rule is well established that, when an accused is on trial for a felony (not barred by limitations), he cannot be convicted of a lesser included offense if the latter offense is barred. There are many cases on this point.” (Citations omitted.)

Typical of the many state court decisions on the subject is State v. King, 140 W.Va. 362, 84 S.E.2d 313, 47 A.L.R.2d 878, which after reciting the general rule that one indicted for an offense not barred by limitation, but convicted of a lesser included offense which is so barred is entitled to discharge stated loc. cit. 318, “Our holding in this regard is in accordant (sic) with the great weight of American authority.”

Basic to the general rule above stated is the general recognition that statutes of limitation in criminal cases, such as that before us — “No person shall be prosecuted, tried, or punished * * * ” are “not merely statutes of repose but create a bar to prosecution.” In Chaifetz v. United States, 109 U.S.App.D.C. 349, 288 F.2d 133, 135, this was expressed, “ * * * a statute of limitations in a criminal case, unlike such a statute in civil matters, is not merely a statute of repose but creates a bar to prosecution.” In a very recent decision the Supreme Court of Arkansas stated, Grayer v. State (1962), 234 Ark. 548, 353 S.W.2d 148, 149, “Under those facts alone (offense committed three years before) we would be compelled to hold the trial court was without jurisdiction to try the petitioner. * * * ‘The above section (limitation on misdemeanor) is somewhat more than a statute of limitations, as regards to time. Ordinarily, the statute of limitations in proceedings is a matter of defense, which may be pleaded or be waived. The above section, however, is a limitation upon the power of courts to try one for any offense less than a felony, unless the charge shall have been instituted within the year after the offense charged was committed.’ ”

Our Missouri Supreme Court has recognized and followed this general rule. In State v. Chevlin, Sup., 284 S.W.2d 563, 567, Judge Stockard speaking for the court, said, “Appellant could not be convicted of common assault, a misdemeanor, because the information (for a felony) was not filed until more than one year after the alleged offense was committed. Other than for the fact that the statute of limitations prevented a conviction of common assault, the evidence clearly would have required that the jury be instructed on this lesser offense.”

Next is the question of what effect, if any, is to be ascribed to the fact that these defendants entered a plea of guilty to the misdemeanor charge ?

Again, we find this question has been considered and ruled upon by various courts all to the general effect that such a plea amounts only to an admission by record of the truth of what is sufficiently alleged in the indictment or information, and does not prevent a defendant from appealing on the ground that the indictment or information charges no offense, as is the case where the indictment or information discloses on its face that the act charged may not be prosecuted because it occurred beyond the limitations period contained in a statute such as ours, Section 541.210 RSMo 1959, V.A. M.S.

In State v. Reppley, 278 Mo. 333, 213 S.W. 477, 479, the rule is stated that, “A defendant who pleads guilty to a charge in an information does not thereby necessarily confess guilt of the crime it is sought to charge against: him; it only means he confesses the truth of the facts stated in the information. He may * * * appeal, * * * on the ground that the information or indictment charges no offense.” (Citations omitted.) In State v. Conley, Mo.Sup., 123 S.W.2d 103, 105, the rule is expressed, “Appellant by pleading guilty waived all defenses other than that the information charged no offense.”

In State v. Levy, 119 Mo. 434, 24 S.W. 1026, the Supreme Court said, “ * * * [t]he attorney general contends that defendants, having pleaded guilty, are in no position to question the correctness of the proceedings which resulted as aforesaid; but this is a mistake. The effect of such a plea only amounts to an admission by record of the truth of whatever is sufficiently alleged in the indictment, and no confession, however large and explicate, will prevent a defendant from taking advantage of faults apparent of record. If no crime is charged in the indictment, then none is confessed by pleading guilty thereto. (Citations omitted.) Numerous decisions of this court attest that a party defendant in a criminal case may take advantage of a material defect apparent of record, though such point be raised for the first time in this court.” In 24A C.J.S. Criminal Law § 1837, page 559, the rule is expressed, “ * * * However, where judgment has been entered on a plea of guilty or nolo contendere, the review is limited to questions as to the jurisdiction or legality of the proceedings; * * *.” See, also, State v. Haverstick, Mo.Sup., 326 S.W.2d 92, 75 A.L.R.2d 1422; United States v. Harris, D.C., 133 F.Supp. 796; People v. Nooner (1962), Cal.App., 23 Cal.Rptr. 355; Annotation, Appeal from Inferior Court, 42 A.L.R.2d 995, 1013, Sec. 14.

Respondent has cited seven cases, State v. Warnke, 48 Mo. 451; State v. Saxauer, 48 Mo. 454; State v. Schienaman, 48 Mo. 479; State v. Riedle, 48 Mo. 480; State v. Cronyn, 48 Mo. 480; State v. Hurley, 48 Mo. 481; State v. Coover, 49 Mo. 432. All are to a degree companion cases to State v. Warnke, supra. We have carefully examined all of these cases and have found that they are completely distinguishable on their facts. They involve mere matters of procedure and do not involve any question concerning statutes of limitations in criminal cases. Since they are not applicable to the questions presented on this appeal it would serve no useful purpose to discuss •them in detail.

The prosecuting attorney says he was induced by defendants to agree to reduce the charge from a felony to a misdemeanor and to recommend a fine as punishment on defendants’ indication they would then plead guilty to the reduced charge. Defendants say such suggestion originated with the prosecuting attorney rather than with them. It is immaterial which one originated the suggestion. The trial court had no prior knowledge of any of this, if it did ■occur; and the trial court made it completely clear to all that it was not bound to follow any recommendation that might be •made by the prosecuting attorney but would make its own independent decision regarding punishment.

The prosecuting attorney, as much as any ■other person, is presumed to know the law and the legal results of his official acts. He should have known the legal effect of his reduction of the charges from a felony to a misdemeanor and have governed himself accordingly. As stated in Pendergast v. United States, 317 U.S. 412, 63 S.Ct. 268, 271, 87 L.Ed. 368, “ * * * Every statute of limitations, of course, may permit a rogue to escape. Yet as Chief Justice Marshall observed in Adams v. Woods, supra, 2 Cranch [336] at page 342, 2 L.Ed. 297, ‘not even treason can be prosecuted after a lapse of three years.’ * * ⅜ ”

We are constrained by the well settled law above quoted and cited to reverse the judgments and to order appellants discharged. It is so ordered.

All concur.

      . Missouri has a similar statute, see, Section 556.230 RSMo 1959, V.A.M.S.

      . See, also, Benes v. United States, 6 Cir., 276 F.2d 99, and cases cited therein; City of Cleveland v. Strom, Ohio Mun.Ct., 67 N.E.2d 353, 357; Jacox v. State, 154 Neb. 416, 48 N.W.2d 390; State v. Ferrie, 243 La. 416, 1962, 144 So.2d 380; 47 A.L.R.2d 890, Section 5; Spears v. State, 26 Ala.App. 376, 160 So. 727.


author: BROADDUS, Presiding Judge.

text:
    JIM KEEHN MOTORS, INC., Appellant, v. Owen G. BELL, Dorothy Bell, Owen G. Bell and Dorothy Bell, d/b/a Riebel’s, Limerick Finance Company, a Corporation, Winston Hurt, d/b/a Limerick Finance Company, and Winston Hurt, Defendants, and LFC Plan, Inc., a Corporation, Intervenor, Respondent.
    No. 23642.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      Falzone & Falzone, Moberly, Hale W. Brown, Kirkwood, for appellant.
    Hulen & Hulen, Moberly, for respondent.
   BROADDUS, Presiding Judge.

This is an action in replevin involving three new automobiles brought by the new-car dealer against the purchaser on the ground that the checks given in payment of the cars were drawn upon a bank account having insufficient funds. The action was also brought against other persons who might have been claiming a right to possession. Defendant LFC Plan, Inc., was permitted to intervene in the case, claiming the right to possession under a chattel mortgage. A jury was waived and the cause tried to the court resulting in a judgment in favor of intervenor LFC Plan, Inc., from which judgment plaintiff appeals.

Plaintiff-appellant is a new car dealer in Webster Groves, St. Louis County, Missouri. Defendant Dorothy Bell operated an automobile dealership at Moberly, Missouri, under the trade name Riebel’s Motor Company.

On April 20, 1961, Dorothy Bell contacted the plaintiff and arranged for the purchase of three new automobiles for the price of $7598.22. At about 9 p. m. the same day, Owen G. Bell, her husband, went to plaintiff’s place of business in St. Louis County, delivered to plaintiff three checks totalling $7598.22, took possession of the cars and obtained “all the papers that go with an automobile,” including bills of sale, car invoices and certificates of origin. The three checks were each signed by Dorothy Bell, drawn on the account of Riebel’s Motor Company, at the bank of' Cairo, Missouri, and were dated April 21,. 1961. The checks were deposited to plaintiff’s account.

On April 22, 1961, Dorothy Bell called a representative of respondent LFC Plan,. Inc., Curtis Sutton, and advised him that she had three cars she had just bought.

On April 24, 1961, at approximately 8-o’clock that morning Curtis Sutton went to-Riebel Motor Company’s place of business, in Moberly to see that Riebel Motor Company was in possession of the subject au--tomobiles which was a normal business practice. While there Mr. Sutton talked with defendant Owen G. Bell and verified the serial numbers of the automobiles and verified the certificates of origin. Mr. Sutton did not see defendant Dorothy Bell at that time and was advised by Mr. Bell that she was in Barnes Hospital in St. Louis.

Phyllis J. Fodor, a cashier working at LFC Plan, Inc.’s office in Harrisburg, Illinois, received a sight draft in the sum- of $7598.22 drawn on respondent LFC Plan, Inc., by Riebel Motor Company on the Harrisburg Bank. Included in the sight draft envelope was a chattel mortgage and instructions concerning the preparation of the chattel mortgage from Riebel Motor Company. Receiving no instructions to the contrary Phyllis J. Fodor then issued a check to pay the sight draft, which resulted in the honoring of said sight draft, which in turn resulted in the $7598.22 being credited to Riebel Motor Company’s account in the bank of Cairo. Thereupon Phyllis Fodor prepared a chattel mortgage and note and executed the same in behalf of Riebel Motor Company, the same being a chattel mortgage and note on the three automobiles, and dated it April 21, 1961, as is customary and in accordance with company policy and accepted business practice. Phyllis Fodor had a power of attorney in behalf of Dorothy Riebel Bell. As of this time, respondent LFC Plan, Inc. had no notice of any irregularities in the operation of Riebel Motor Company and defendant Riebel Motor Company’s credit was good, and respondent LFC Plan, Inc., had never previously found Dorothy Bell to be dishonest.

On April 26, 1961, appellant was advised that the three checks delivered by Owen G. Bell had been dishonored. Winston Hurt, a representative of respondent LFC Plan, Inc., came to Moberly, and upon his arrival at Riebel Motor Company learned that Mrs. Bell was no longer there and took possession of a number of automobiles, including the subject automobiles and, with the consent of Owen G. Bell, directed that the cars be moved to another lot and put under guard, advising his subordinate Curtis Sutton of these directions. Mr. Sutton employed a number of off-duty policemen to guard the motor vehicles. Subsequent to the removal of the automobiles appellant’s president, Jim Keehn, telephoned Riebel Motor Company, talked with defendant Owen G. Bell, and was advised that he couldn’t make the checks good, and to come and get his cars, at which point during the telephone conversation, Winston Hurt took the telephone and advised that he was Winston Hurt of LFC Plan, Inc. and that the place was “blown up”, and that he was going to hold everything and would not surrender the cars to appellant.

On April 27, 1961, appellant filed suit, posted a bond and obtained possession of the automobiles by reason of a writ of replevin.

The three automobiles were never in the possession of appellant from the evening of April 20, 1961, until April 27, 1961, when delivered to it by the Sheriff of Randolph County.

At the conclusion of the evidence the cause was taken under advisement and thereafter, on December 12, 1961, the court made Findings of Fact and also filed the following conclusions of law:

“1. Defendant Owen G. Bell, defendant Limerick Finance Company, a corporation, defendant Winston Hurt doing business as Limerick Finance Company, and defendant Winston Hurt as an individual have never had at any time pertinent to this action any possession, right, title, or interest in or to any of the three automobiles described in plaintiff’s petition.
“2. The transaction between plaintiff Jim Keehn Motors Inc., and defendant Dorothy Bell doing business as Riebel Motor Company, whereby plaintiff delivered possession of the three automobiles in question together with properly assigned certificates of origin and invoices to the agent of defendant Dorothy Bell doing business as Riebel Motor Company and the delivery by the agent of defendant Dorothy Bell to the agent of plaintiff of three checks in the total sum of $7598.22 in payment for said automobiles, was a completed sale at the time of the transaction.
“3. That Phyllis Fodor was.the duly appointed attorney in Fact of defendant Dorothy Bell doing business as Riebel Motor Company and as such had the authority under said Power of Attorney to execute the note and chattel mortgage and deliver same on behalf of defendant Dorothy Bell to the LFC Plan, Inc.
“4. Defendant LFC Plan, Inc., in good faith took the chattel mortgage and is an innocent purchaser for value.
“5. Defendant LFC Plan, Inc. lawfully took actual possession of the three automobiles in question under its chattel mortgage prior to any rescission or attempt to rescind by the plaintiff of the sale made by plaintiff to defendant Dorothy Bell doing business as Riebel Motor Company and such mortgage is valid as against plaintiff even though the chattel mortgage was not filed for record at the time plaintiff filed this action.
“6. Defendant LFC Plan, Inc, is entitled to the possession of said three automobiles as against plaintiff or at its election defendant LFC Plan, Inc. is entitled to recover the value of said automobiles from plaintiff as of the date of the taking of said vehicles by plaintiff.”

Plaintiff contends that the sale of the automobiles to the Riebel Motor Company was a cash sale, and that the title did not pass to the purchaser because the purchase price was not paid. In support of its position plaintiff relies upon the case of Hickerson v. Con Frazier Buick Co., Mo.App., 264 S.W.2d 29, decided by this court. That case is distinguishable from 'the instant case because there the rights of no third person were involved. This is pointed out in the recent case of Pashalian v. Big-4 Chevrolet Co., Mo.App., 348 S.W.2d 628, 636.

The trial court found, and the evidence supports that finding, that LFC Plan, Inc. in good faith took the chattel mortgage and was an innocent purchaser for value. Thus we have in this case two innocent parties, one of whom must bear the loss. As stated in the case of Goddard Grocery Co. v. Freedman, Mo.App., 127 S.W.2d 759:

“It is a general principle as regards traffic in personal property that where one of two innocent persons must suffer by the fraud of a third he who has put it in the power of the third to commit the fraud must suffer.”

In the instant case, plaintiff had it within its power either to retain possession of the automobiles until the checks issued in payment therefor had cleared, or not execute the titles to the automobiles until the checks had been honored. It failed to do either, and thus put it in the power of the Riebel Motor Company to commit the fraud. Under these circumstances, plaintiff should bear the loss.

Appellant challenges the validity of the chattel mortgage in question because it was filed after suit was instituted. In taking this position appellant overlooks the rule announced in the cases of Jones v. Bank of Excelsior Springs, 201 Mo.App. 545, 213 S.W. 892, and Columbia Savings Bank v. Limerick, Mo.App., 216 S.W.2d 119, 123, that if a mortgagee takes possession of the property under the mortgage before creditors become lien creditors, it validates the mortgage as to such creditors, even though not recorded. Under the undisputed evidence in this case the LFC Plan, Inc. had possession of the automobiles the day Mr. Keehn called Mr. Bell from St. Louis, and at the same time talked to Mr. Hurt, the .representative of LFC Plan, Inc. It further appears from the evidence that •at the time Mr. ICeehn talked to Hurt he was informed that LFC Plan, Inc. had taken possession of the automobiles under a mort•gage. Therefore, the question as to the time of the filing of the mortgage is immaterial, since the filing of the mortgage is for the purpose of giving notice of the exist■ence of such lien, and Mr. Keehn, president ■of the plaintiff company, had actual notice of the mortgage before filing the replevin ■action, and was further advised that the three automobiles in question, together with ■other cars, were then in the possession of the LFC Plan, Inc.

The judgment was for the right party and should be affirmed. It is so ordered. All concur.


author: SPERRY, Commissioner.

text:
    Ola GILLESPIE, Plaintiff-Appellant, v. The ESTATE of William H. RINGHAUSEN, Deceased, Ernest B. Thompson, Administrator, w.w.a., d.b.n., Defendants-Respondents.
    No. 23764.
    Kansas City Court of Appeals. Missouri.
    Feb. 4, 1963.

      J. B. Beavers, Cameron, for appellant.
    R. E. Moulthrop, Bethany, Frank L. Pulley, Cameron, for respondents,
   SPERRY, Commissioner.

Plaintiff sued the estate of William H. Ringhausen, deceased, Ernest B. Thompson administrator, praying the court to ascertain and determine title to certain specifically described U. S. bonds in possession of defendant, and to deliver same to her. Trial to the court resulted in judgment for defendant. Plaintiff appealed.

This suit is founded on Section 473.357 RSMci 1959, V.A.M.S. William H. Ring-hausen, hereafter referred to as testator, died possessed of 12 U. S. bonds, all described by number and in detail in the petition, of a total face value of $9060.00. Plaintiff pleaded that she “acquired ownership of said personal property (bonds) by consummated and delivered gift from the said William H. Ringhausen, in his lifetime”.

Plaintiff’s son testified to the effect that he was present when testator was put in the ambulance to go to the hospital, in his last illness; that plaintiff, Mr. Brooks, and Mr. Cochell, were present; that the latter are undertakers and operated the ambulance; that witness heard testator “tell (plaintiff) for her to be sure and get the suitcase with the bonds in it, that he had gave her”. He said that plaintiff told witness to be sure and get them; that he picked up one among several boxes and suitcases sitting on testator’s porch; that it was “evidently” not the right one, which he later discovered.

Mr. Brooks stated that when testator was being placed in the ambulance for transportation to the hospital in Albany he heard him tell plaintiff “to be sure to get the black suitcase with the bonds. I believe that’s all”.

Plaintiff testified to the effect that she was a cousin of testator’s deceased wife; that the families had a close relationship; that, after his wife’s death, plaintiff had, on occasion, stayed at testator’s home to look after him; that she lived there eight months and that he was at plaintiff’s home two summers. She offered to testify regarding a conversation between her and testator, and also one she had with testator’s executor, G. Roy Sloan, who was also the residuary beneficiary of the will. At the time of the trial he was deceased. To this testimony defendant’s objection was sustained on the grounds that such testimony would be in contravention of the Dead Man’s Statute, Section 491.010 RSMo 1959, V.A.M.S.

This testimony was properly excluded because plaintiff was incompetent to testify as to admissions made by any deceased adverse party which tended to strengthen her case at the expense of such party. Both testator and Sloan were adverse parties within the meaning of the statute; Jones on Evidence, 5th Edition, Volume 3, Par. 777, page 1444; Slagle v. Callaway, 333 Mo. 1055, 64 S.W.2d 923, 927-928, 90 A.L.R. 1366. It does not appear that the testimony offered is such as would be admissible since it referred to the bonds and to plaintiff’s rights thereto by gift made to her by testator prior to his death. Birdsong v. Estate of Ladwig (Mo.App.), 314 S.W.2d 471, 475-476.

Plaintiff also offered the testimony of Teresa Waltrip who stated that she heard testator say to plaintiff “If anything happens to me, just take the suitcase and it is yours”; and that he said that plaintiff was to have the suitcase “if anything happens to me”.

Defendant offered the inventory of the estate in evidence. It disclosed that the above mentioned bonds, exactly as described in plaintiff’s petition, were listed therein.

The evidence showed that G. Roy Sloan ■was a principal legatee under the will of testator; that he was executor; that he died some two months after the demise <of testator. The evidence also disclosed that Mr. Ernest B. Thompson, the administrator, w. w. a., d. b. n., is husband of Mr. .Sloan’s daughter, Maurine, and that Mrs. Etta Sloan is Mr. Sloan’s widow. Both of those ladies are beneficiaries of the estate •here involved.

Mr. Thompson, present administrator, stated that plaintiff had never made any ■claim to him that she owned any bonds prior to the filing of this suit. He stated that, at testator’s home, there were a great number of boxes, suitcases, bundles and sample cases which were taken to Mr. Sloan’s for examination, and that the inventory was made there; that everything was a “clutter”; that there was no system ■or order; that some of the bonds inventoried were found in suitcases or scattered ■everywhere; that canceled checks showed that testator had paid plaintiff for services from time to time until his death. He stated that plaintiff gave to Sloan a suitcase, prior to testator’s death1; that, after-wards, she wrote Sloan demanding delivery to her of bonds said to have been in the suitcase when she gave it to him; that she ■claimed that there were two bonds given her; that this claim was made about a week after testator’s death.

Mrs. Sloan stated that after testator ■died, and about three weeks before Mr. Sloan died, plaintiff brought to Mr. Sloan ■a suitcase in which plaintiff said there were two bonds; that they were found in the bottom of the case by Mr. Sloan while plaintiff watched. She stated that other bonds were found in various places around testator’s house; that some time later plaintiff wrote Mr. Sloan a letter stating that testator had given her the two bonds in the suitcase and she wanted them.

Maurine Thompson, a daughter of Mrs. Sloan, stated that she helped to inventory and discover the assets of the estate; that bonds were found in various bundles, boxes, and places; that the bonds listed in the petition are the bonds listed in the inventory; that she listed and described them in detail; that most were found in the house among testator’s personal effects, a few in a place, in envelopes, satchels, etc.; and she identified two of those listed in plaintiff’s petition as those given to witness’ little girl by testator, in an envelope that he handed her.

One claiming a gift inter vivos must prove the gift by convincing evidence and must establish a delivery with the intent of the owner that title and control pass immediately. In re Kies Estate, Mo., 320 S.W.2d 478, 480. Such a gift, when sought to be proven after the death of donor, must be proven by forceful, clear and convincing testimony which convinces the court beyond a reasonable doubt of its truthfulness, Manley v. Ryan, 235 Mo.App. 45, 126 S.W.2d 909.

We should not disturb the judgment here unless we think it is clearly erroneous. In the state of the evidence, and in view of the stated law, we cannot so hold.

The judgment is affirmed.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All concur.