author: PER CURIAM.

text:
    Charles Burton STEELE, Executor of the Estate of Ethel E. Steele, Deceased, et al., Plaintiffs-Appellants, v. Gerald CROSS, Executor of the Estate of Thomas J. Shoemaker, Deceased, et al., Defendants-Respondents.
    No. 49215.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.
    Motion for Rehearing or to Transfer to Court En Banc Denied April 8, 1963.

      Hilary A. Bush, Johnson, Lucas, Bush & Vardeman, Kansas City, Conn Withers, Alan F. Wherritt, Liberty, John B. Ewing, Jr., Kansas City, for appellants.
    Pross Cross, Lathrop, Clay C. Rogers, Charles L. Carr, Rogers, Field & Gentry, Kansas City, for respondents.
   PER CURIAM.

The plaintiffs in this case are the brothers and sisters, or their successors in interest (except Hugh H. Pixlee), of William T. Pixlee who died testate, a resident of Clay County, Missouri, on November 28, 1921. At the time of his death he owned 4,400 acres of land in Lyon and Greenwood Counties, Kansas, most of which was oil producing land. In a manner hereinafter detailed decedent’s only child, Maude Pixlee Shoemaker, shortly after her father’s death, became a life tenant in an undivided one half of said land. From that time until her death on December 23, 1950, she, or her guardian, collected the royalties for oil produced from said undivided interest in that land under various leases. By 1934 the amount so received totaled $130,308.48. The total amount received thereafter has not been ascertained. Briefly stated, it is the contention of plaintiffs in this case that said life tenant was entitled only to the earnings or interest income from said royalties during her lifetime and at her death they, as remaindermen, were entitled to receive the corpus thereof.

Defendants herein are Gerald Cross in his capacity as administrator of the estate of Maude Pixlee Shoemaker, deceased; Gerald Cross in his capacity as executor of the estate of Thomas J. Shoemaker, deceased (Thomas J. Shoemaker was the husband and only heir of Maude Pixlee Shoemaker) ; and Gerald Cross in his capacity as trustee under the last will and testament of Thomas J. Shoemaker, deceased. (It will be noted that there is only one defendant, but since he is sued in three different representative capacities, we will refer to him by the plural designation “defendants”.) After filing an answer which set up various defenses the defendants, on June 20, 1961, filed a motion for summary judgment. Briefly summarized, it alleged as grounds for judgment (1) that this suit is barred under the nonclaim provisions of the probate code; (2) that the issues here tendered have been finally adjudicated in two prior suits hereinafter more fully described; and (3) that these plaintiffs have split their cause of action by a failure to tender this claim in one or both of the two prior suits mentioned in ground (2). The motion was supported by certain affidavits and exhibits which establish the facts upon which the defendants’ contentions of law are founded. The trial court sustained the motion for summary judgment and entered judgment for defendants and against plaintiffs. Plaintiffs have duly appealed therefrom.

By his will William T. Pixlee left all of his real estate to his wife Eva for life, and then to his only child Maude and her bodily heirs. The will further provided that if Maude died without bodily heirs the real estate would descend to testator’s brothers and sisters and their descendants per stirpes. Hugh H. Pixlee was made executor of the will and was appointed trustee of a trust created therein. In regard to that trust the will provided that all personal property not otherwise bequeathed would become a part thereof, and it was specified that the income from said trust was to be used mainly for the care of testator’s wife during her lifetime, and after her death such should be used for the care and comfort of Maude, and, at Maude’s death, without bodily heirs, the corpus should be distributed absolutely to testator’s brothers and sisters or their descendants per stirpes.

In regard to the real estate the will provided that in managing the same testator’s wife and Hugh “may lease for oil in the usual manner, if they .think best,” the proceeds to go to the trust fund hereinabove described.

The widow renounced the will and elected to take outright an undivided one-half interest in the estate. She thus became the owner in fee of an undivided one-half interest in the Kansas real estate, and upon her death on December 3, 1922, that undivided one-half interest descended to her only child Maude. The income from that one-half interest is not here involved, but that interest is referred to from time to time in connection with the issues before us.

The legal effect of the renunciation of the will by the widow was to accelerate the vesting of the life estate of Maude in the other one-half interest in the Kansas land. In that connection it may be here stated that a serious question thereafter arose as to whether, under the terms of the will, Maude received an estate tail or a life estate in said undivided interest. Apparently, if it was an estate tail, under Kansas law such could be transformed into a fee simple estate by a conveyance from the dev-isee to a third party and a subsequent re-conveyance to the devisee. In the year 1934, Maude and her husband, by conveyance to one Nicholas, and a reconveyance on the same day to Maude, attempted to so transform her interest into a fee simple estate. However, in litigation subsequent to Maude’s death, the Kansas Supreme Court held that Maude’s interest was a life estate. Steele v. Pedroja, 178 Kan. 441, 289 P.2d 738.

In July 1925, Maude conveyed the Kansas land to Hugh H. Pixlee, and Hugh recon-veyed to her the half interest which she inherited from her mother, and retained the half interest here involved in trust under an agreement with Maude. He apparently collected the oil royalties and placed them in the trust estate which had been created by the will of William T. Pixlee. Thereafter, Maude filed a suit in Kansas against Hugh Pixlee and his wife in which she sought to set aside the deed she had made to Hugh, and to recover the oil royalties he had collected therefrom. The court granted the relief plaintiff sought, set aside the deed, and ordered that Hugh, after deducting certain expenses, deliver to Maude certain specifically described government bonds in the face amount of $130,000.00 from the trust estate heretofore mentioned which had been bought with royalties received, and cash in the sum of $308.48 — all of which represented in the aggregate the net amount due to Maude for royalties theretofore collected from the half interest here involved. Maude had also filed a suit in Clay County, which went on change of venue to Lafayette County, in which she sought similar relief insofar as the oil income was concerned as that sought in the Kansas case, which suit was terminated insofar as it related to the oil income by a judgment similar to the one entered in the Kansas court.

On October 17, 1925, Maude was adjudged to be a person of unsound mind. On May 18, 1932, she was found to be of sound mind and her guardian was discharged. She was, however, again adjudged to be of unsound mind on September 8, 1943, by the Probate Court of Clinton County and Gerald Cross was appointed her guardian and continued in that capacity until her death on December 23, 1950. On December 27, 1950, Gerald Cross was appointed domiciliary administrator of Maude’s estate and duly qualified in that ■capacity. On February 21, 1951, Edward E. Pedroja was appointed ancillary administrator of her estate by the Probate Court of 'Greenwood County, Kansas. In 1934, as heretofore stated, Maude received from Hugh Pixlee the oil royalties paid to him on the property here involved up to that time. Thereafter, Maude, or her guardian, ■collected the royalties for the undivided interest now owned by plaintiffs and commingled said income with her other assets .and obviously treated said income as her property rather than money from which she might be entitled to the income only.

Not long after Maude’s death the plain- • tiffs in this case, or their predecessors, filed . a claim in the Probate Court of Greenwood ■ County, Kansas, seeking to establish their interest in the Kansas land. Hugh’s one-ninth interest in the land had theretofore, ■ in some manner, been transferred or conveyed to Maude so that plaintiffs in that ■ case sought to establish that they were the ■ owners in fee of an eight-ninths interest in an undivided half interest in said land, and • sought an accounting from the ancillary administrator of all income derived from their interest in the land after the death of Maude. This case was transferred to the . district court and a trial thereafter resulted ¡in a judgment for plaintiffs. That judgment was affirmed in the Kansas Supreme Court. See Steele v. Pedroja, supra. Certain orders made in that case, and certain recitals in the judgment, afford a basis for defendants’ claim that an adjudication was made in that case establishing Maude’s right to the royalty income from that land until the time of her death.

Very shortly after the judgment became final in Steele v. Pedroja, which established plaintiffs’ interest in the Kansas real estate, a partition suit was filed in Kansas by Thomas J. Shoemaker, Maude’s sole heir at law, and Mr. Pedroja as ancillary administrator of Maude’s estate, against the owners (these plaintiffs or their predecessors) of the eight-ninths of an undivided one-half interest in said real estate. In that case plaintiffs also asked that there be an accounting between the parties for rents and income received from said real estate after Maude’s death. Defendants therein, in their cross-petition, also sought partition and an accounting for royalties received after Maude’s death, and, in addition, prayed “for an accounting for all oil runs received by the plaintiffs or their predecessors in title subsequent to the death of William T. Pixlee on the 28th day of November 1921.” Plaintiffs filed a motion to strike the quoted portion of the cross-petition upon the grounds that any claim for any income prior to Maude’s death had been barred by the statute of nonclaim and the statutes of limitation of Kansas, and for the further reason that defendants had waived any such claim in the case of Steele v. Pedroja, and in that case had asserted their claim for the income received after Maude’s death and thereby had split any cause of action they had and were precluded from now asserting any additional claim for income from that land. Said motion was sustained “through said attorneys [for defendants therein — present plaintiffs] consenting thereto.” That proceeding and perhaps other orders in that case afford the basis for defendants herein to contend that the judgment in that partition suit is res judicata of plaintiffs’ claim herein.

On April 2, 1957, Thomas J. Shoemaker died, and thereafter Gerald Cross, as dom-icilary executor of his estate, was substituted in the Kansas partition suit for said decedent. Subsequently, upon an agreed accounting, said Gerald Cross as administrator of Maude’s estate, and Mr. Pedroja as ancillary administrator of Maude’s estate, were ordered to pay the aggregate sum of $56,161.39 to defendants therein (these plaintiffs) for pasture rental and oil royalties collected by them from the property in question after the date of Maude’s death.

On December 22, 1955, the original petition in the case at bar was filed. It is of interest that this suit was filed just five years, lacking one day, after Maude’s death. It also should be noted that in the original petition plaintiffs sought recovery only of the value of the bonds and money which Hugh Pixlee delivered to Maude in 1934. A comparison of the bonds delivered to Maude at that time, and the assets inventoried in Maude’s estate, shows that none of the bonds she received in 1934 were in her estate at the time of her death. The only accounting sought in the original petition was for a determination of the market value at that time of the bonds in the face amount of $130,000 which were turned over to Maude in 1934.

This suit was originally filed in the Circuit Court of Clinton County, Missouri, but thereafter the venue was changed by agreement to the Circuit Court of Jackson County, Missouri. Plaintiffs, with leave, filed a first amended petition on May 1, 1961. In that petition they sought an accounting as to all royalties from all oil leases from the time Maude became a life tenant in the one-half interest in said Kansas land until the date of her death in order to determine the capital sum to which the remaindermen were entitled upon Maude’s death.

Upon this appeal plaintiffs contend that the trial court erred in sustaining the motion for summary judgment. The parties have briefed their respective contentions relating to each of the three grounds upon which the motion was based. We will first consider the contention that plaintiffs’ claim is barred under the nonclaim statute.

We, of course, are not called upon to decide the ultimate question presented by plaintiffs’ petition upon the merits. As a matter of background, it is of interest to note that plaintiffs rely on the rule that a life tenant is not ordinarily permitted to exploit the mineral resources of real estate in his possession. The rule and its exceptions are stated as follows: “[A] life tenant has no right to exploit the gas and oil resources of the property for his own benefit, or to authorize, by lease or otherwise, another to do so, where such exploitation had not been begun or authorized before the commencement of the life estate and no such right has been conferred upon him by the will or other instrument by which the life estate was created, or by agreement or consent of the remaindermen entitled to the eventual estate. As the rule is sometimes expressed, the life tenant has no right to open new wells where none had been opened or authorized before the commencement of the life estate.” Anno. 43 A.L.R. 811. It would appear that neither Maude nor her guardian had the authority to enter into any oil leases but apparently plaintiffs in Steele v. Pedroja, supra, elected not to contest the validity of any such leases. Upon this general subject it has been said that “where the life tenant and remaindermen join in an oil and gas lease they may agree as to division of rents and royalties, and in the absence of agreement, the life tenant is entitled either to have the royalties invested and to receive income therefrom, or to receive an apportionment of the royalties dependent on the value of his expectancy.” Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P.2d 463, 468.

Maude died on December 23, 1950. An administrator of her estate was appointed December 27, 1950, and the first publication of letters was made on January 11, 1951. This suit was filed on December 22, 1955. We have concluded that the claim of plaintiffs herein is barred by the probate nonclaim statute because this suit was not commenced within one year from the date of the first publication of letters in Maude’s estate. Since the events with which we are concerned occurred prior to January 1, 1956, the effective date of the new probate code, the questions presented will be governed by the prior applicable statutes. See §§ 464.010, 464.020, and 464.070 (unless otherwise indicated all statutory references are to RSMo 1949, V.A.M.S.).

Although we doubt that it would in any manner change our decision we have, in determining the question presented, disregarded the amended petition filed May 1, 1961. This for the reason that if, as we have decided, the claim in the original petition was barred by the nonclaim statute, the amendment seeking additional relief could not relate back to the filing of the original petition and save the claim from the bar of that statute. Arpe v. Mesker Bros. Iron Co., 323 Mo. 640, 19 S.W.2d 668. If, on the other hand, the new claim was not one to which the nonclaim statute would apply, it would nevertheless be barred by the general statute of limitation, § 516.120, RSMo 1959, V.A.M.S., which defendants pleaded. Mitchell v. The Health Culture Co., 349 Mo. 475, 162 S.W.2d 233.

Section 464.010 provides, in part, as follows : “All demands against the estate of any deceased person shall be divided into the following classes: * * * (5) All demands, without regard to quality, which shall be legally exhibited against the estate within six months after the date of the granting of the first letters on the estate; (6) All demands thus exhibited after the end of six months and within one year after the date of the granting of the first letters on the estate.” Section 464.020 reads as follows: “All demands not thus exhibited in one year shall be forever barred, saving to infants and persons of unsound mind, or imprisoned, one year after the removal of their disability, and said one year shall begin to run from the date of the granting of the first letters on the estate where notice shall be published, the first insertion within ten days after letters are granted; and in all other cases said one year shall begin to run from the date of the first insertion of the publication of the said notice.” And § 464.070 states that “All actions commenced against such executor or administrator, after death of the deceased, shall be considered demands legally exhibited against such estate from the time of serving the original process on such executor or administrator.” It is perhaps apropos to state at this point that, insofar as applicable to the precise question before us, we do not see any substantial difference between the statutes herein quoted and comparable sections of the new probate code (§§ 473.397 (6), (7), 473.360, and 473.367, RSMo 1959, V.A.M.S.), and therefore we are warranted in relying, to the extent hereinafter indicated, upon the case of North v. Hawkinson, Mo.Sup., 324 S.W.2d 733, which involved sections of the new code.

Many of the cases of this court and of the courts of appeals have not been in harmony nor free from conflict in determining questions relating to the necessity of compliance with the nonclaim statute in actions of an equitable nature involving various factual situations. Over a period of time it was held in a number of cases that the probate court had no jurisdiction of equitable claims and therefore such claims were not barred by failure to comply with the nonclaim statute. See Orr v. St. Louis Union Trust Co., 291 Mo. 383, 236 S.W. 642, Clay v. Walker, Mo.App., 6 S.W.2d 961, Bond v. Unsell, Mo.App., 72 S.W.2d 871, and Cunningham v. Kinnerk, 230 Mo. App. 749, 74 S.W.2d 1107. It now appears to be established, however, that if a claim otherwise comes within the bar of the non-claim statute it will be barred thereby even though it is a claim which the probate court did not have jurisdiction to adjudicate. Helliker v. Bram, Mo.Sup., 277 S.W.2d 556; North v. Hawkinson, supra.

We are in full accord with the rulings in the Helliker and North cases. ■The purpose of the statute of nonclaim is to aid in the prompt settlement of estates of decedents. Within a reasonable time debts should be paid and the remainder of the assets distributed among the beneficiaries of the estate. There has long been a statute (§ 464.070) in this state which has provided that claims or demands could be legally exhibited by filing a suit against the executor or administrator of the estate. No sound reason appears as to why the non-claim statute should not apply to all claims against an estate regardless of the forum in which they may or must be established. There is no relationship between the requirement as to the time in which a claim must be exhibited and the court which has jurisdiction to determine it. If a claim is of the type that only the circuit court has jurisdiction thereof it is in no manner unjust to require the claimant to file suit within the period provided in the nonclaim statute for the filing of claims in the probate court. It is only by so construing the statutes that the well-established plan for the prompt administration of estates may be made fully effective.

In support of their contention that their claim for relief in this suit is not barred by failure to file the suit within the period provided in § 464.020, plaintiffs rely mainly upon the case of Orr v. St. Louis Union Trust Co., supra. In that case, involving an express trust, plaintiff had delivered a large sum of money to her husband to invest for her. After her husband died and his estate had been administered she filed suit to recover her money from the trustee of a trust estate her husband had created in his will. This court held that she was entitled to an equitable lien on a certain building in which some of her funds were invested, and that she could recover the remainder which had been intermingled with her husband’s general property from his estate in the hands of his trustee. However, in holding that plaintiff’s claim had not been barred by the nonclaim statute the court relied entirely upon the rule that the claim was of an equitable nature and hence was not cognizable before the probate court. We think that portion of the Orr opinion (discussed in the preceding sentence) has been overruled, by necessary implication, by the Helliker case, supra, which held that a tort claim, although not within the jurisdiction of the probate court, was barred by failure to sue within the nonclaim period, and by the North case, supra, which held that an equitable suit for a partnership accounting was barred because it was not filed within the nine-month period provided in the present non-claim statute. In North, we said, “an adequate means for the determination of the merits of plaintiff’s right of action was available by a suit in the circuit court and we need not determine whether the probate court had concurrent jurisdiction to hear and determine plaintiff’s cause of action if it had been filed as a claim in that court. * * * It is wholly fallacious to hold (as some decisions appear to have done) that the limitation provisions of the probate code do not apply unless the probate court has jurisdiction to adjudicate the merits of the claim in question.” 324 S.W.2d 1. c. 745. The Orr, Helliker, and North cases were all decided by Division 2 of this court. It also follows from the foregoing that the court of appeals cases heretofore cited (Clay, Bond, and Cunningham) which followed the Orr case on the point discussed herein, should no longer be followed in that respect

(In connection with our discussion of the questions here involved, it should be made clear that we are not called upon, by the issues here presented, to consider the soundness of the cases holding that the non-claim statute would not bar an action to establish a trust where the funds were traced into specific real or personal property.)

Plaintiffs in the case before us seek to establish a constructive trust. Such a trust is imposed as a remedy to prevent unjust enrichment. A proper way to enforce a constructive trust is by an action for money had and received. Campbell v. Webb, 363 Mo. 1192, 258 S.W.2d 595 [6]. “Although an action at law, an action for money had and received is equitable in its nature and is governed by equitable principles.” 58 C.J.S. Money Received § 1, p. 906. In the case at bar plaintiffs do not allege that the money Maude collected can he traced into any specific real or personal property. It is clear that if plaintiffs simply seek a money judgment their claim is barred by failure to sue within the nonclaim period. Regardless of whether the claim alleged in the petition is denominated as legal or equitable we think it is, in all practical respects, a suit to recover a specific sum of money, i. e., $308.48, and an amount equal to the market value of the United States bonds in the face amount of $130,-000 that were delivered to Maude in 1934. The fact that an accounting is sought to determine the market value of the bonds in 1934, and that plaintiffs pray that the judgment be made a lien upon the assets in the various estates involved herein, does not change the fact that in reality plaintiffs are seeking a judgment to recover a sum of money which they contend should have been paid to them by Maude’s administrator.

The situation in this case is somewhat similar to that in Campbell v. Webb, supra. In that case the second count of the petition sought to establish a constructive trust (and additional equitable relief) against assets in the estate of a deceased defendant, and also assets in the possession of his wife who was likewise a defendant. All of the parties entitled to recover were not made plaintiffs. After the period for filing claims against decedent’s estate had elapsed the plaintiffs filed an amended petition seeking to convert the cause into a class action and to recover for all the parties beneficially interested in the claim. It was held that the claims of those who had not joined as original plaintiffs were barred by the nonclaim statute. See also the opinion on the first appeal, Campbell v. Webb, 356 Mo. 466, 202 S.W.2d 35. These cases strongly support the view we have taken in the case at bar.

As indicated, upon the authority of the cases heretofore cited, we rule that the. claim alleged in plaintiffs’ petition was barred by the failure of plaintiffs to file this suit within one year after the first publication of notice in Maude’s estate (§ 464.020), and hence that the court did not err in entering a summary judgment for the defendants.

Since the first ground alleged in the motion for summary judgment is sufficient to warrant the judgment entered by the trial court, we need not consider the merits of the other two grounds included therein.

The judgment is affirmed.


source: Caselaw Access Project

author: BARRETT, Commissioner.

license: Public Domain

text:
    Rosalie PRIDE, Plaintiff-Appellant, v. Maury LAMBERG and Sandro, Inc., a Corporation, Defendants-Respondents.
    No. 49488.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.

      George G. White and Richard E. Baker, Clayton, for appellant.
    Sidney Rubin, St. Louis, for respondents.
   BARRETT, Commissioner.

This is an action to recover $25,000 actual and $25,000 punitive damages for alleged malicious prosecution. At the close of the plaintiff’s evidence the trial court sustained the defendants’ motion for judgment and the plaintiff appeals from the ensuing judgment of dismissal.

It is necessary at the outset to make the observation that the appellant designates and presents her action as one for malicious prosecution, and the respondents, as well as the plaintiff, have indiscriminately cited both false imprisonment and malicious prosecution cases. Coffman v. Shell Petroleum Co., 228 Mo.App. 727, 728, 71 S. W.2d 97, 98. For the definitions and distinctions in the two actions in general see Annotations 21 A.L.R.2d 643, 647 ; 36 A.L. R.2d 786, 787-788; 34 Am.Jur., Malicious Prosecution, Secs. 2-3, pp. 703-704; 54 C.J.S. Malicious Prosecution § 1, p. 951; 22 Am.Jur., False Imprisonment, Secs. 2-3, pp. 353-354; 35 C.J.S. False Imprisonment § 4, p. 625. Confusing as the consequences may he, it is not the function of this court to carefully spell out an applicable theory and the appeal is accepted as it has been presented — as an action for malicious prosecution.

Sandro, Inc., in Overland, sold dresses, coats, sweaters and ladies’ ready-to-wear. Maury Lamberg managed the store and may have been its principal stockholder. Regularly the store employed five salesladies, and during the Christmas season Maury’s wife, brother-in-law, nephew and perhaps an extra saleslady or two were also engaged in various activities about the store. The plaintiff Rosalie Pride had been employed in the store on a part-time basis for about seven years. Her job was pressing dresses and skirts, and her work was done in the back room where mink stoles and some of the better coats and dresses were stored. The washroom was in this area of the store and all the employees had access to it. On Saturday, December 19, 1959, Mr. Lamberg paid Rosalie and about 8 o’clock she left the store by way of the front door and proceeded to her home in Wellston. During the day two fur-trimmed sweaters were sold and about 8:15 it was discovered that they were missing from the back room. Sometime after 9 o’clock a police officer came to Rosalie’s door and informed her, “You’re wanted for larceny.” The officer took her to the Ninth District police station, then to the Twelfth District, to the Overland Jail and finally to the courthouse in Clayton where, about 9 o’clock on Sunday, she was released. It is for this arrest, detention and confinement in jail that Rosalie prosecutes this action for alleged malicious prosecution. In addition to any other injury, Rosalie was humiliated indeed when “My husband’s friend came and asked me what bird has wings and didn’t fly.”

The meritorious question here is whether from the direct and circumstantial evidence (Heinold v. Muntz T. V., Inc. (Mo.), 262 S.W.2d 32) the plaintiff “made a submissible * * * prima facie case” of malicious prosecution. Harper v. St. Joseph Lead Co., 361 Mo. 129, 135, 233 S.W. 2d 835, 837. In considering this problem the plaintiff’s evidence most damaging to the defendants is set forth. Rosalie says that at the Overland Jail she “asked the police lady to call Mr. Lamberg for me.” She was held for some time, however, and was first questioned by police officers and finally “the lieutenant called Mr. Lamberg and he came out.” Lamberg was there about ten minutes and this, according to Rosalie, is the crux of what he had to say. “Mr. Lamberg came in and he was looking a real stranger and like he didn’t know me or nothing. He came in and said, T know you got those. Couldn’t nobody got those but you. You was the only one in the back room.’ I said, ‘Everybody goes in back.’ He said I was the onliest one. ‘Those sweaters were already sold. You give those back to me and everything will be like it was. You won’t lose your job or anything. Tell me where they are because they are already sold.’ I said, T didn’t get those sweaters.’ He said, ‘Joe wasn’t there. You was the onliest one using the back room.’ ” Also in Rosalie’s behalf, as “admissions against interest,” these excerpts from Lam-berg’s deposition were read in evidence. He called the Overland police and asked them to come to the store. “Q. I asked you what did you say to the police when they arrived at the store? A. I told them that the sweaters were missing and I tried to reach all my employees, the two girls that were off and the rest of the girls were all in the store. He asked me if there was anybody else who wasn’t there and I mentioned Rosalie Pride and I told him we tried to get Rosalie and went to the bus and couldn’t find her there, and my son drove into Wellston to catch the bus when she got off. He drove all over Wellston without finding her there. * * * Q. When did you first learn that she had been arrested? A. When they called me up and told me she was in the Overland Police Station on Sunday afternoon. Q. Who called you? A. Sergeant Onions. He said he had Rosalie Pride there and would I come over.”

Rosalie’s other witness was Lt. Velker of the Overland Police Department. He said that in response to a call he and Sergeant Onions went to Sandro’s and there received a report of the theft of two fur-trimmed sweaters. These officers interrogated several employees about the circumstances. The gist, he said, of his conversation with Lamberg was this: “Just that statements were made that he had these sweaters in the back room, they were hung up in the back room, and that after they checked after this lady left to go home, that the sweaters were missing.” This is the police report, introduced in evidence through Lt. Velker:

“Received a call of larceny at Sandro Clothing Store, 2527 Woodson Road, and upon arrival was informed by Maury Lamberg * * * that approximately 20 minutes prior to the arrival of this department, he had observed two sweaters missing from rack in store room located in the rear of the store.
“Lamberg further stated he employs a colored girl part time to press clothing. * * * Rosalie Pride was last seen sweeping the floor in store room, but not observed leaving. Subject did not leave through front door and only other exit is rear door of store room. Above placed on TT #202, 9:49 P.M., 12/19/59. No record in St. Louis County or City Police Departments.
“At approximately 12:15 P.M., 12/ 20/59 Officer Velker and Officer Hard-esty, at the Central District, St. Louis Police Department, arrested one Rosalie Pride * * *. This arrest being made for suspicion of stealing over $50.00.
“Subject was conveyed to this department, booked and questioned in regard to above theft, Report #1121 cc, where she denied any knowledge of same. Subject stated she would be willing to take a polygraph test. ‡ ‡ ‡
“At approximately 6:30 P.M. 12/20/ 59, Maury Lamberg contacted this department stating he did not wish to follow through on prosecution. St. Louis County Sheriff’s office contacted for the release of Rosalie Pride.”

In conclusion, on cross-examination, Lt. Velker gave this evidence:

“Q. Did Mr. Lamberg at any time ever accuse Mrs. Pride of taking the sweaters ?
“A. Directly say she-fook them; no, sir, not to my knowledge. To me he did not.
“Q. Did not tell you. A. No, sir.
“Q. Did he at any time request her arrest? A. No, sir.
“Q. Now, subsequent to your investigation you went back with the sergeant to the station, I take it?
“A. That’s right.
“Q. And the order to put this out,, that was made at the station; am I. not correct?
“A. That’s right, sir.
“Q. Based on the investigation that you made?
“A. That’s right, sir.
“Q. It was the decision of you and Sergeant Onions that this woman be picked up on this charge; is that correct?
“A. From the information we had received; yes, sir.
“Q. At no time did Mr. Lamberg either accuse directly or demand her arrest, is that correct ? A. To me, no sir.”

Here, unlike in La Chance v. National Pigments & Chemical Co. (Mo. App.), 104 S.W.2d 693, there was no formal charge before a magistrate or the filing of an information in any court charging Rosalie with a criminal offense. Nevertheless, there was an arrest and a detention in jail and it is assumed “that a prosecution was instituted and commenced against plaintiff.” Coffman v. Shell Petroleum Co., supra. But she caused Maury to be called and when he came to the jail he did accuse her of stealing the sweaters, “I know you got those.” But the only implied threat was the loss of her job, there was no threat of a prosecution and there is no evidence that he instigated or brought about her arrest. As for her arrest and detention there is no evidence that Maury went any further than to state the facts as he knew them to the officers. He expressed to Rosalie his opinion that she was guilty of stealing the sweaters hut there is no evidence that he made such a charge to the police or requested her arrest. According to the police, theirs was the decision, from their investigation, to arrest and detain her for “suspicion of stealing over $50.00.” Maury did not ask anyone to prosecute Rosalie and after the arrest and detention informed the police, according to their report, “that he did not .wish to follow through on prosecution.” This statement in the context of the report is not subject to the interpretation that Maury caused or instigated the arrest, “in none of these acr tions did he direct the police to do anything.” Checkeye v. John Bettendorf Market (Mo.App.), 257 S.W.2d 202, 204. There is no proof that Maury had any part in the decision to arrest Rosalie, there certainly is no evidence that he caused or instigated her detention and in the undisputed circumstances adduced by her there is no liability for malicious prosecution. Hunter v. Karchmer (Mo.App.), 285 S.W. 2d 918; Harper v. St. Joseph Lead Co., supra, and the following false imprisonment cases, Snider v. Wimberly, 357 Mo. 491, 209 S.W.2d 239; Heinold v. Muntz T. V., Inc., supra; Checkeye v. John Bettendorf Market, supra.

After the court indicated that the defendants’ motion for judgment would be sustained, the plaintiff made a request “to reopen her case for the purpose of producing additional testimony concerning the imprisonment of the plaintiff.” Counsel stated that in addition to the evidence before the court Rosalie would testify that while a prisoner of the Overland police she was conveyed by Maury Lamberg in his personal automobile, together with a police officer “back to the scene of the alleged theft for the purpose of examining the premises to determine whether or not the alleged stolen items were still on the premises and could be found.” In addition, it was stated, she would testify that after Maury searched the store he returned her to the Overland Police Station where her “incarceration continued.” Thereupon, before denying the request to reopen the case, the court said, “Let the record show that there was considerable discussion between Court and counsel before we placed this on the record; ⅜ * *.” The court in the meanwhile had read the depositions of the plaintiff and the defendant and because there was no mention of a trip back to the store declined to reopen the case.

It may be that an invalid reason was given for denying the request, but it does not follow as a matter of course that plaintiff is therefore entitled to a new trial. When there is no inconvenience to the court or unfair advantage to one of the parties, there is an abuse of discretion and a new trial will be directed upon a refusal to reopen a case and permit the introduction of material evidence, that is evidence that would substantially affect the merits of the action and perhaps alter the court’s decision. Smith v. Ray M. Dilschneider, Inc. (Mo.), 283 S.W.2d 631, 635-636. In connection with this rule and the merits of this action it may be noted that “In Missouri, evidence of the defendant’s mere accompanying of the police in an investigation of the plaintiff’s activities, while the plaintiff is detained for the purpose, together zvith evidence of some active participation by the defendant in directing the investigation, is enough to support a verdict for the plaintiff. For example, Thompson v. St. Louis-San Francisco R. Co. (Mo. App.), 3 S.W.2d 1033.” Annotation 21 A.L.R.2d l. c. 708. But here the only additional circumstance suggested by the offer of proof is the mere fact that Maury, accompanied by an officer, drove Rosalie back to the store and again an unsuccessful search was made for the sweaters. On this trip he did not accuse her of stealing the sweaters, and, as previously indicated, there is no evidence from which it is a fair inference that there was, in the language of the annotation, “participation by the defendant in directing the investigation.” At most there was the furnishing of necessary and proper information and cooperation with the police. In these circumstances there was no abuse of discretion in the court’s refusal to reopen the case to hear the additionally proffered testimony. McClendon v. Johnson (Mo.), 337 S.W.2d 77, 83-84; Walton v. Van Camp (Mo.), 283 S.W.2d 493; Conley v. Dee (Mo.App.), 246 S.W.2d 385.

For the reasons indicated the judgment is affirmed.

BOHLING and STOCKARD, CC., concur.

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

All of the Judges concur.


author: HYDE, Judge. PER CURIAM.

text:
    M. Florence FETTE, Appellant, v. The CITY OF ST. LOUIS, a Municipal Corporation, Respondent.
    No. 49360.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.
    Motion to Transfer to Court En Bane Denied April 8, 1963.
    William B. Ewald and Forrest Boecker, St. Louis, for appellant.
    Thomas J. Neenan, City Counslor, James J. Gallagher, Associate City Counselor, St. Louis, for respondent.
   HYDE, Judge.

Action for $25,000.00 damages for wrongful death of plaintiff’s husband, a city fireman killed while on duty fighting a fire in a building. The suit was against the owners and occupants of the building and the City. The trial court sustained the City’s motion to dismiss as to it on the ground of failure to state facts upon which relief can be granted. The court also granted plaintiff a separate trial against the owners and occupants and ordered that its ruling as to the motion to dismiss be deemed a final judgment for the purpose of appeal pursuant to Supreme Court Rule 82.06, V.A.M.R. Plaintiff has appealed from that judgment.

Plaintiff briefs the case on the theory that the dismissal was because of the doctrine of governmental immunity. The City has filed a motion to dismiss the appeal, claiming governmental immunity was not the issue determined by the trial court. However, the trial court’s order did not specify any ground and the City’s motion stated no reason why plaintiff’s petition did not state a claim. Likewise, the City’s suggestions in support of its motion filed here do not give us any information about any other ground so its motion to dismiss the appeal is overruled. Nevertheless, since the City says it does also rely on the defense of governmental function (including cases on that subject in its suggestions) and plaintiff seeks to have the doctrine of governmental immunity abrogated at least insofar as it applies to municipalities as employers, we will decide the case on that issue. No contention is made that fire fighting is not a governmental function. See Richardson v. City of Hannibal, 330 Mo. 398, 50 S.W.2d 648, 84 A.L.R. 508.

Plaintiff cites the following cases from other states, saying we should follow them. Muskopf v. Corning Hospital District, 11 Cal.Rptr. 89, 359 P.2d 457; Hargrove v. Town of Cocoa Beach (Fla.), 96 So.2d 130; Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89, 86 A.L.R.2d 469; Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1; Spanel v. Mounds View School Dist. No. 621 (Minn.), 118 N.W.2d 795; McAndrew v. Mularchuk, 33 N.J. 172, 162 A.2d 820; Holytz v. City of Milwaukee, 17 Wis.2d 26, 115 N.W.2d 618. The view we have taken, stated in Brown v. City of Craig, 350 Mo. 836, 168 S.W.2d 1080, 1084, and recently restated in Gillen v. City of St. Louis, Mo., 345 S.W.2d 69, 73, is as follows: “This whole doctrine of governmental immunity has been increasingly criticised. However, such nonliability is based not merely on the ancient view that the king can do no wrong, as frequently suggested; but also upon the principle that public officers have no authority to bind the sovereign (the whole people) except such as is given them by specific constitutional and statutory provisions. The general rules of re-spondeat superior cannot be applied to them without opening up unlimited possibilities for wasteful and dishonest dissipation of public funds. While the complexity of modern government may require a relaxation of present rules of absolute nonlia-bility, undoubtedly this is a matter for the Legislature (which must authorize the collection and disbursement of public funds) to provide in the interest of more complete justice to the individual but under strict regulations and with very definite limitations to protect the public interest.” See also Pearson v. Kansas City, 331 Mo. 885, 55 S.W.2d 485, and cases therein cited.

We think the above-cited recent Minnesota case shows why this is properly a matter for the legislature. The court reviewed the origin of the doctrine in England and in the United States and applied it in the case before it but held prospectively “the defense of sovereign immunity will no longer be available to school districts, municipal corporations, and other subdivisions of government on whom immunity has been conferred by judicial decision with respect to torts which are committed after the adjournment of the next regular session of the Minnesota Legislature.” (118 N.W.2d l.c. 796.) The court stated the following suggested proposals that the legislature might adopt to meet the situation created by its abrogation of the doctrine (118 N.W.2d l.c. 804): “(1) A requirement for giving prompt notice of the claim after the occurrence of the tort, (2) a reduction in the usual period of limitations, (3) a monetary limit on the amount of liability, (4) the establishment of a special claims court or commission, or provision for trial by the court without a jury, and (5) the continuation of the defense of immunity as to some or all units of government for a limited or indefinite period of time.”

If such legislation is required by the abrogation of this doctrine, and we think it is, it is our view that the whole matter should be left to the legislature. From the review of cases from other states in the opinion in the Minnesota case, we note that after the California decision, hereinabove cited: “The California legislature promptly declared a moratorium on this and other claims similarly situated.” (118 N.W.2d l.c. 800.) Likewise, it is stated that after the Illinois decision above cited: “The Illinois Legislature responded promptly by reinstating tort immunity with respect to. a number of subdivisions of government.” (118 N.W.2d l.c. 801.) All this confirms our view that whatever is done to change the doctrine of governmental immunity should be done by the legislature and not by the courts. (We have a precedent for legislative action in the Federal Tort Claims Act, U.S.C.A. Title 28, Chap. 171, Secs. 2671-2680, which has been followed in some states. See Annotation, 60 A.L.R.2d 1199.) It will be necessary to use public funds to settle claims or pay judgments and only the legislature can properly provide for their collection by taxation, authorize expenditures for liability insurance, create methods of payments similar to workmen’s compensation or establish the other safeguards suggested in the opinion of the Minnesota Supreme Court. Our governmental units are all now operating financially on the basis of our long established precedents and our conclusion is that we should not abolish this doctrine by judicial fiat.

The judgment is affirmed.

All of the Judges of the Division and STONE, Special Judge, concur.

On Motion to Transfer to Court en Banc

PER CURIAM.

Plaintiff asks transfer to the Court en Banc apparently claiming that a federal question is involved. Plaintiff’s argument is that it is a denial of equal protection of the laws in violation of Sec. 1 of the 14th Amendment to the U. S. Constitution to deny recovery to city employees engaged in work which is a governmental function when city employees engaged in work which is a proprietary function are allowed recovery. Plaintiff’s petition stated: “To deny to decedent the enforcement of said duty owed him by defendant City would deprive decedent, and plaintiff as his successor, of a valuable incident of decedent’s employment without due process of law, in violation of Article I, Section 10 of the Constitution of Missouri, and in violation of Section 1 of the Fourteenth Amendment to the Constitution of the United States, would create an arbitrary and unreasonable classification of decedent’s employment.”

However, this is a wrongful death action and not an employee’s action for his personal injuries or the survival of any such action. It is a new, independent cause of action and is neither a transmitted right nor a survival right. State ex rel. Thomas v. Daues, 314 Mo. 13, 283 S.W. 51, 56, 45 A.L.R. 1466; Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920, 923; Nelms v. Bright, Mo.Sup., 299 S.W.2d 483, 487. Thus there is no denial to decedent, or to anyone claiming through any right of his, of due process or equal protection of the laws; and that is the only claimed constitutional right attempted to be raised in plaintiff’s petition. Furthermore, the governmental immunity rule is not a classification of employees but a principle determining liability of the state, and its subdivisions exercising governmental authority, to all persons. Therefore, the motion to transfer to the Court en Banc is overruled.


author: EAGER, Presiding Judge.

text:
    Harry L. SHINER and Myrtle F. Shiner, Respondents, v. Ethel POLK, by her Guardian and Curator, Martha T. Corn, Martha T. Corn, Curator of Ethel Polk, and Arvid Owsley, Sheriff of Jackson County, Missouri, Appellants.
    No. 49518.
    Supreme Court of Missouri, Division No. 2.
    April 8, 1963.
    Ennis, Browne & Martin, Allan R. Browne, Kansas City, for appellants.
    Ayers Blocher, Kansas City, for respondent.
   EAGER, Presiding Judge.

This suit was filed upon the theory that the holder of a first note and deed of trust had automatically merged that lien into the legal title by taking a warranty deed from the record owners. Plaintiffs were the holders of a second note and deed of trust and, claiming that their second deed of trust thus became a first lien, they sought to enjoin foreclosure of the first. At the trial plaintiff Myrtle F. Shiner (the husband having died after suit was filed) was permitted to amend the petition by inter-lineation so as to allege an agreement by defendant Polk to cancel her note and deed of trust. The property covered by these liens is a rather dilapidated house on the east side of Kansas City, which is obviously not worth the remaining balance due on the first deed of trust. And the rather sketchy evidence of value so shows.

More specifically, on May 8, 1956, James and Lucy Lee Dodson executed a note for $4,650 -and a first deed of trust on the south forty feet of Lots 1 and 2, except that part of Lot 1 on College Avenue, in Block 2, Walnut Grove, a subdivision in Kansas City, Missouri. Those instruments later became the property of Ethel Polk, defendant and appellant herein. She was then approximately 70 years old and was 75 at the time of trial in July 1961. On March 5, 1959, the Dodsons executed a note for $2,000 and a second deed of trust on the property; these later became the property of plaintiffs, apparently in joint ownership. That deed of trust recited that it was “subject to an existing First Deed of Trust and Note, now of record.” Both the first and second notes were payable in monthly installments. Apparently the payments on Mrs. Polk’s note ceased about the middle of 1959, and those on the other note about January 1960. The balance due on the first after the last payment was $3,638.68 plus interest. On February 23, 1960, the Dodsons executed and delivered to Mrs. Polk as grantee a warranty deed to the property, “Subject to First and Second Deeds of Trust and Notes now of record.” This deed was duly recorded, as were the prior deeds of trust. The transcript shows that this transaction was handled for Mrs. Polk by real estate agents who were “helping” her with this property; one of them prepared the warranty deed and took it to the Dodsons for execution. The record does not show that Mrs. Polk was present at the time, or when she had last talked to the Dodsons. In fact, nothing is shown as to what transpired when the deed was executed and delivered. It is obvious that the note of Mrs. Polk was not surrendered to the Dodsons, for she had possession of it' months thereafter. Mrs, Polk admittedly paid the Dodsons $360 at or about the time of the execution of the deed, “for their interest.” In the fall of 1960 Mrs. Polk requested one of these real estate agents, so he testified, to institute foreclosure on her note. The original trustee named refused to act, and a request was made of the Sheriff. Publication was instituted and run with the sale set for November 4, 1960. On November 2, this suit was instituted and a restraining order was issued on the same day.

We omit recitals of the evidence of certain circumstances and conversations and also concerning a written statement taken from Mrs. Polk, since these bear largely upon the issue of a supposed' agreement by Mrs. Polk to cancel her note. In the view we take of the case, a consideration of that evidence will not be necessary. A guardian and curator was appointed for Mrs. Polk by the Probate Court of Jackson County on February 15, 1962, about seven months after the trial. That court then found her to be incompetent. The guardian and curator was later made a party in the present case.

We first look to see what the issues really are. The petition alleges that a sale under foreclosure of the first deed of trust would be void and “would place a cloud upon the interest of these plaintiffs * It does not ask for any adjudication of title, nor does it claim title in plaintiffs. Mrs. Polk’s title was not questioned, but rather was affirmed; it was alleged, however, that she had subsequently conveyed to one Silvers, who was originally named as a party defendant but never appeared. Plaintiffs, not claiming title, merely sought injunctions, temporary and permanent, an order declaring their deed of trust “to be a first lien,” and general relief. Defendant Polk filed her answer in which she made certain admissions and denials, alleged that plaintiffs had an adequate remedy at law, supposedly by a quiet title suit, and sought to have the restraining order dissolved and the petition dismissed. She also prayed for damages. Defendant sought no adjudication of the title, since it had not been placed in controversy.

The court entered its decree on March 26, 1962. Therein it found for the plaintiff generally, and also found: that Mrs. Polk had agreed to cancel her note and deed of trust when she “purchased” the property in February 1960, as a part of the consideration for the deed, but that she had failed to cancel them; that the note of plaintiff was “now a first lien” upon the real estate. The judgment was that the note secured by the first deed of trust be can-celled, that the second deed of trust was a first lien on the property, that the defendants were perpetually enjoined from foreclosure and that Mrs. Polk’s claim for damages was denied. This judgment did not proceed upon any theory of automatic merger by reason of a purchase of the title by the holder of the first lien. After the overruling of a motion “For Rehearing and New Trial” defendants appealed.

Actually, the sole issue made here was whether, by merger or agreement to cancel, the first lien was eliminated and the second lien became a first. At the trial the contention of an automatic merger seems to have been totally abandoned in view of the outstanding interest represented by the second lien and other considerations indicated in the cases. Scott v. Hill, 330 Mo. 490, 50 S.W.2d 110; Saline County v. Thorp, 337 Mo. 1140, 88 S.W.2d 183; Collins v. Stocking, 98 Mo. 290, 11 S.W. 750; Wilson v. Vanstone, 112 Mo. 315, 20 S.W. 612; Seiberling v. Tipton, 113 Mo. 373, 21 S.W. 4. The issue tried was largely, if not solely, whether Mrs. Polk had agreed to cancel her note and deed of trust when she took the warranty deed. This was directly denied, and more or less directly asserted, but we refrain from commenting on that evidence.

We are met immediately with a question of our jurisdiction. This writer has noted several times that a case might well have been written on the merits with less difficulty than on the jurisdictional question, but this is a court of limited jurisdiction, Art. V, Sec. 3, Constitution of Missouri 1945, V.A.M.S., and we are not privileged to extend our jurisdiction in any respect. The asserted ground of jurisdiction here is that title to real estate is involved.

In order to establish jurisdiction on that ground it is not enough that title may be indirectly affected; a question of title must be directly involved, must be an issue, and the judgment should be one affecting the title in some way. Reece v. Van Gilder, Mo., 272 S.W.2d 177; Deacon v. City of Ladue, Mo.App., 294 S.W.2d 616; Boesel v. Perry, Mo., 262 S.W.2d 636. This court has held, in the same connection, that suits to enforce or enjoin the enforcement of liens, valid in their inception, or to adjudicate liens, do not involve title to real estate. Boesel, supra. Rust Sash & Door Co. v. Gate City Bldg. Corp., 342 Mo. 206, 114 S.W.2d 1023; Stock v. Schloman, 322 Mo. 1209, 18 S.W.2d 428; Rust v. Geneva Investment Co., Mo., 124 S.W.2d 1135; Simmon v. Marion, 358 Mo. 888, 217 S.W. 2d 537. As stated in Boesel, supra, at 262 S.W.2d 636, loc. cit. 637-638: “Suits to en force or enjoin the enforcement of liens against real estate, admittedly valid in their inception, do not involve title to real estate so as to confer appellate jurisdiction here. Farrell v. Seelig, Mo.Sup., 19 S.W.2d 648, 650 [3] ; Brutcher v. Fitzsimmons, 343 Mo. 547, 122 S.W.2d 881, 882; Heman v. Wade, 141 Mo. 598, 601, 43 S.W. 162, 163. There is no claim that the deed of trust was void ab initio as in Hendrix v. Goldman, Mo. Sup., 92 S.W.2d 733 [1], and other like cases.”

As thus indicated there are cases from this court which hold that we do have jurisdiction, and that title is involved, if the validity of the lien, ab initio, is in issue. Jurisdiction was accepted on that theory in the following cases: Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297 (lack of consideration); Cannon v. Blake, 353 Mo. 294, 182 S.W.2d 303 (violation of Home Owners’ Loan Act); Kleber v. Carlos, Mo., 202 S.W.2d 865 (fraud or misrepresentations) ; Phillips v. Phoenix Trust Co., 332 Mo. 327, 58 S.W.2d 318 (authority of a guardian) ; Woodbury v. Connecticut Mutual Life Ins. Co., 350 Mo. 527, 166 S.W.2d 552 (probably fraud) ; Kramer v. Johnson, 361 Mo. 1085, 238 S.W.2d 416 (violation of Home Owners’ Loan Act).

In Peters v. Kirkwood Federal Savings & Loan Ass’n, 344 Mo. 1067, 130 S.W.2d 507, the court said on this subject, at loc.cit. 508-509: “There is a distinction (affecting appellate jurisdiction) made in the decisions between a suit to set aside a deed of trust on the ground that it is void ab initio, and a suit in which it is sought to prevent enforcement on the ground that the right to enforce has been lost by something happening after execution.” It then set out several illustrations of the “ab initio” theory. In that case, however, the court concluded that no jurisdiction existed since discharge and payment was the real issue. It is obvious, of course, that a question of payment or no payment merely involves a monetary fact issue, and not any real question of title. Similarly, an explanation was offered in the case of Munday v. Austin, 358 Mo. 959, 218 S.W.2d 624, at loc. cit. 626, where the court said: “From these decisions it will be seen that where the essential and inherent validity of the mortgage itself is in dispute, title is involved. In other words, the mortgage is regarded as a part or segment of the title, constituting a cloud on the title if it is invalid. But if the dispute is merely over the foreclosure of the mortgage or the indebtedness secured thereby, it does not involve title.”

Two of our cases came very close to the present case on the jurisdictional facts. In both, jurisdiction was denied. The first is Boesel v. Perry, Mo., 262 S.W.2d 636, already mentioned. There, suit was filed to cancel a deed of trust and to enjoin foreclosure. The facts were that plaintiffs, the makers of the note and owners of the property, had taken a quit claim deed from the holder of the note and deed of trust in an effort to improve their title. It was contended later (in the suit) that the quit claim had also released their note and deed of trust. Jurisdiction was denied because this contention, based on subsequent occurrences, did not affect the validity of the note and deed of trust ab initio. The court also noted, loc. cit. 638: “Plaintiffs’ prayer to cancel the deed of trust is but an effort to put a judicial end to the originally valid lien of said deed of trust.”

The case of Morgan v. York, 337 Mo. 1076, 88 S.W.2d 146, was discussed in Boesel, supra. There, suit was filed to enjoin a foreclosure and to cancel certain notes and a deed of trust. It was claimed that the notes and deed of trust had been released by a merger into the legal title, when the owner of the property bought them and later resold them. The court discussed at some length the phases of jurisdiction which we have been discussing, and held that no question of title was involved on these issues. The court said, in part, 88 S.W.2d loc. cit. 150: “As stated, supra, plaintiff’s title was not questioned nor was any attack made upon the validity of the deed of trust. Primarily the pleadings seek the judgment of the court as to whether or not the deed of trust, admittedly valid in its inception, is still a lien; that was the sole matter at issue and the only thing determined and adjudged by the trial court.”

We thus see that on plaintiff’s original theory of a merger, our authorities prevent us from accepting jurisdiction. In passing, we note that it may be a little difficult to grasp the basic reasoning behind the stated principle that nothing which occurs after the execution of the note can create a title controversy. Probably it lies in the thought that only defects arising “ab initio” can cause the lien, a segment of the title, to be essentially and inherently invalid.

So far as the present case is concerned, however, the denial of jurisdiction can hardly be questioned. Plaintiff amended her petition so as to allege that Mrs. Polk had agreed to cancel her note as part of the consideration for the warranty deed. The case was tried and decided on that issue. Such an issue is very closely akin to one of payment, and all the authorities agree that a lien controversy on the question of payment or no payment does not give this court jurisdiction.

Title to realty is not involved and the case will be transferred to the Kansas City Court of Appeals.

All of the Judges concur.


author: DALTON, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Fred LUTTRELL, Appellant.
    No. 49444.
    Supreme Court of Missouri, Division No. 1.
    April 8, 1963.

      Charles M. Shaw, Clayton, for appellant.
    Thomas F. Eagleton, Atty. Gen., Albert J. Stephan, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   DALTON, Presiding Judge.

By an information filed in the Circuit Court of St. Charles County on January 6, 1962, the defendant was charged with murder in the first degree. He was convicted of murder in the second degree and his punishment assessed at 20 years’ imprisonment in the state penitentiary. He has appealed from the judgment and sentence entered against him. While defendant was represented by able counsel in the trial court, he is not represented by counsel in this court and he has not favored us with a brief. We must therefore review the assignments of error in his motion for a new trial and further examine the record as required by Supreme Court Rule 28.02, V.A.M.R.

The State’s evidence tended to show that, on November 6, 1961, the defendant resided with his wife, Velma, and a stepdaughter, Judy Walker, age fourteen years, in a trailer in St. Peter’s, St. Charles County, Missouri.

Wallace B. Orsech, hereinafter referred to as the deceased, was a police officer of the St. Louis Metropolitan Police Department. He resided in St. Louis County and was not on duty at the time he was killed. Orsech was married, but had had marital difficulties over money matters and was not living with his wife either on the day of his death or on the preceding day. Mr. and Mrs. Orsech met the defendant and his wife for the first time on December 31, 1960, at a New Year’s Eve party held at the Or-sech home. Mrs. Orsech had not visited defendant’s home, but Mr. and Mrs. Orsech had seen defendant and his wife several times socially prior to November 6, 1961, and defendant and his wife had visited the Orsechs at their house on Hanley Road in St. Louis County.

About 11 o’clock on the evening of November 4, 1961, the deceased, who was off duty, came to the home of one Alton K. Love in St. Louis County. He was then dressed in a police uniform and had with him his service revolver that had been issued to him by the Metropolitan Police Department, “a special thirty-eight.” At the Love home the gun was in a holster attached to a Sam Browne belt which the deceased wrapped around the weapon and placed it in a foot locker. The following day, Sunday, November 5, deceased spent in the Love home watching television. The next day the deceased, wearing cotton trousers and a shirt, went with Love to Love’s place of employment and remained with him from nine a. m. until three p. m., as Love performed his duties as a filling station employee. The deceased then went with Love to the Bluebird, a local tavern, where they stayed together until 4 o’clock, at which time Love left and defendant entered the tavern and started visiting with deceased. About 4:30 p. m. the deceased, accompanied by the defendant, drove a pickup truck into Love’s filling station. The truck bore the name of “Fred Luttrell, St. Peter’s, Missouri”, but defendant was riding as a passenger and the deceased was driving. After the gas tank was filled, defendant and deceased left in a westerly direction.

They arrived together at the defendant’s trailer home about 6:15 p. m. The deceased and defendant entered and were seated on a divan, with defendant seated next to deceased and deceased next to Judy, while they watched “TV”. After ten or fifteen minutes the defendant and the deceased both left the trailer and deceased thereafter returned with a carton of beer, which he gave to defendant’s wife, and again seated himself on the divan to watch “TV”. A few minutes later defendant re-entered the room carrying a shotgun and he shot the deceased twice with a 16-gauge Remington shotgun from a distance of ten to fifteen feet, killing him. The gun was later found on top of a pickup truck, where it had been placed by the defendant as he went to a neighbor’s home to report the killing. Subsequently a police officer found two spent shells in the trailer near the place where the defendant stood at the time the gun was fired. They had been fired from the shotgun found on top of the pickup truck.

When the officers arrived they found the deceased in a sitting position on the divan with his hands in his lap; he appeared to be dead. There was no pulse, the eyes were open but did not dilate when a flashlight was shone in them. No breathing could be detected and there was a large hole in deceased’s chin and up through his mouth; the left side of his face was torn away and also his left ear, and he had bled profusely.

After defendant telephoned for the police, he asked his neighbor to come over and see the man he had killed. Defendant told her that he had shot the man; that the man “had made a pass at his stepdaughter, Judy,” and had also been “messing around with his wife.” Defendant also told a deputy sheriff that he had shot the man.

Although the defendant testified at the trial that the deceased had a “.38 short-barrel, loaded revolver” in his possession, Judy, who was seated next to the deceased on the divan, had not seen any such gun at any time. Other evidence tended to show that the deceased owned no such pistol, had no such gun in his possession and that he had had none except the one issued to him by the police department which was found, after deceased’s death, in the locker where he had placed it on November 4. Defendant’s wife, who testified in defendant’s behalf, had not seen a gun in deceased’s possession at any time during the evening of November 6. At the trial defendant admitted that he had killed the deceased by shooting him. Defendant further testified that, prior to the shooting, deceased had a .38 short-barrel, loaded revolver, and had pointed it at him, and had threatened him at various times that evening. Defendant did not know what happened to the revolver after he shot the deceased. One of the police officers made a search for such a pistol in and about the trailer where the killing occurred, but no such pistol could be found. The defendant’s testimony will be further reviewed in connection with an assignment of error in the motion for a new trial.

No question has been raised with reference to the information filed in this case, but since it is our duty under Supreme Court Rules 28.02 and 28.08 to determine its sufficiency, we shall set out a portion of it, as follows: “ * * * that Fred Luttrell on the 6th day of November, 1961, in the County of St. Charles, State of Missouri, did then and there willfully and unlawfully deliberately, premeditatedly, feloniously and of his malice aforethought, make an assault upon one Wallace G. Orsech with a 16 gauge shotgun, shooting and inflicting mortal wounds from which the said Wallace B. Orsech died and did thereby kill and murder the said Wallace B. Orsech

It will be noted that the date of death is not expressly stated, except as may be inferred or as the allegations may tend to indicate that all events transpired on the date stated and had transpired prior to the filing of the information on January 6, 1962.

At one time it was deemed essential that the information expressly allege not only the date the defendant inflicted the mortal wound, but also the date and place of death. See State v. Borders, Mo.Sup., 199 S.W. 180, 182. The Borders’ case held that there was no necessity to plead or prove the place of death, but indicated that it was still necessary for the information to state the time of death. We do not find said requirement to have been changed by any specific decision. There are situations, however, where such an allegation is wholly unnecessary, as where other allegations or circumstances expressly show that the deceased died within a year and a day after the offense sought to be charged, as in the present case. In this case the information charges the assault and shooting occurred on November 6, 1961, and the information was filed January 6, 1962, and it alleges that defendant “did thereby kill and murder the said Wallace B. Orsech.” The record further shows the trial and conviction of defendant on the 21st of February 1962, all within one year after the alleged date of the shooting. The allegations of the information were therefore sufficient under Supreme Court Rule 24.01 and defendant could not have been prejudiced by any failure to more specifically allege the date of death. State v. Brookshire, Mo.Sup., No. 49152, - S.W.2d-. And see Supreme Court Rule 24.11, which provides: “No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: * * * for stating the time imperfectly, * * * or, * * * for the want of an allegation of the time or place of any material fact, when the time and place have once been stated in the indictment or information ⅜ *

While it would have been better for the information to have alleged the date of death, it was nevertheless sufficient under the facts of this case and under Supreme Court Rule 24.11.

The first assignment of error in the motion is to the effect that the court erred in permitting the prosecuting attorney to introduce into evidence and to read to the jury a transcript of the testimony of Elizabeth Orsech, deceased’s widow, as given by her at defendant’s preliminary hearing held on November 30, 1961, before the Honorable Webster Karrenbrock, Judge of the Magistrate Court of St. Charles County. The transcript of such testimony was permitted to be read to the jury in lieu of the testimony of the witness in person. The transcript was not signed by the witness as required by Sec. 544.370 RSMo 1959, V.A.M.S. and Supreme Court Rule 23.12, nor was the transcript of the testimony of this witness certified by the magistrate to the circuit court upon the completion of the preliminary hearing, nor when defendant was bound over to appear in the circuit court to answer a felony charge of murder in the first degree. It is contended that the admission of this evidence denied the defendant his right to he confronted by the witness against him in the trial of the cause; that the State had failed to use due diligence in securing the presence of the witness at the trial; that no effort had been made to have the State extradite the witness as a material witness; that the transcript of the testimony was not signed by the witness as required to preserve it for future use; and that the transcript was not a correct transcript of the witness’ testimony, nor properly certified.

The testimony had been taken down at the preliminary hearing by one Harry Wellington, the official court reporter of the circuit court of the county where the preliminary hearing was held, and it had thereafter been transcribed. Witness Wellington testified that the transcript was a true and correct transcript of Mrs. Orsech’s testimony. The record shows that counsel for defendant also objected to the admission of the transcript in evidence on the ground: (1) that it was hearsay; (2) that the transcript had not been signed by the witness, as required; (3) that it deprived the defendant of confrontation by the witness; and (4) that under the facts given to the court and shown by the record it did not appear that the State had exercised due diligence in securing the attendance of the witness to testify at the trial. Counsel for defendant admitted that defendant and his counsel were present in the Magistrate Court of St. Charles on November 30, 1961, for the preliminary hearing in this cause and that Harry Wellington was present and took down the testimony of said witness after she was duly sworn, but the defendant denied that the transcript in question was a true and correct transcript.

The State insists that the court did not err in admitting the transcript in evidence and that defendant’s right to confront the witnesses against him was not violated “because a proper showing was made of diligence on the part of the State in attempting to locate Elizabeth Orsech” and to have her present at the trial. It is also contended that the admissibility of testimony taken at a preliminary hearing was- not abolished by the Legislature’s enactment of Sec. 491.420 RSMo 1959, V.A.M.S. permitting the extradition of material witnesses, and that said statute does not apply when it is shown, as here, that the location of the witness is unknown. The State further contends that, even if the trial court erred in its ruling, the error, if any, in admitting the evidence was harmless error, and its admission should not require the reversal of the judgment or the remanding of the cause for a new trial. The State cites Supreme Court Rule 25.13 and numerous cases, none of which support the State’s contention under the facts of this case. See State v. Kain, Mo.Sup., 330 S.W.2d 842, 843; State v. Lloyd, 337 Mo. 990, 87 S.W.2d 418, 420.

Supreme Court Rule 23.12, applicable to preliminary examinations in felony cases, provides that in all cases of homicide the evidence given by the witnesses shall be reduced to writing by the magistrate or under his direction and shall be signed by the witnesses respectively. The rule conforms to the provisions of Sec. 544.370 RSMo 1959, V.A.M.S. And see Sec. 544.-390 and Supreme Court Rule 23.11.

This court in State v. Banton, 342 Mo. 45, 111 S.W.2d 516, 518, has held that the purpose of the statute was to secure a fair preliminary examination and to preserve the testimony taken. However, this court in several cases has held that the admission of testimony taken at a preliminary hearing and transcribed, but not signed and not certified by the magistrate was not admissible and that the admission of such evidence at the trial was reversible error.

In the case of State v. Bradford, 324 Mo. 695, 24 S.W.2d 993, 996[1], this court said:

“It may be urged, and there is force in the suggestion, that the neglect of some of its officers to observe statutory requirements should not be permitted to deprive the state of evidence which can be produced in another, if less satisfactory, way, and which may be important or even necessary in bringing an offender to justice. The welfare of the state and of society demands the sure and speedy punishment of crime. But, in the long run, that welfare is not best subserved by disregarding or whittling away in zeal for law enforcement the constitutional and statutory safeguards provided for the protection of individual rights. The importance of examination and cross-examination in the presence of the court and jury and of the appearance and manner of the witness while testifying is too well recognized to require comment. When by due diligence that is not procurable, and testimony previously given by the witness is offered in lieu thereof, if the law prescribes the preservation and authentication of such testimony in a certain way, that method should be followed. In a criminal trial, where life or liberty is at stake, at least as much diligence and observance of statutory requirements should be demanded of the state as would be required of a party to a civil action, where, for example, an unsigned deposition cannot be used unless the signature is waived. Upon the facts shown in this case, we think the testimony <of the witness Chapman should have been excluded.”

In State v. Jamerson, Mo.Sup., 252 S.W. 682, 687[5] the court said: “It is contended by appellant that reversible error was committed by the trial court in admitting, over the objection of defendant, the unsigned testimony of Jim Graves, alleged to have been given at the preliminary hearing before the justice, and transcribed by the stenographer who took down the evidence at said hearing. It was conceded that Jim Graves was dead at the date of trial, and that he never signed any statement as required by section 3825, R.S.1919. * * * The above section has been a part of our statutes a great many years. It is sui generis in its provisions, relates solely to homicides, and requires, under the circumstances of this case, that the testimony of the witnesses shall be signed by the latter. * * * The motive which actuated the General Assembly in the enactment of above section is a matter of no concern to the court in this investigation. Said body was vested with jurisdiction to pass such law, and, whether sound or otherwise, it is mandatory in its terms, and must be followed in this proceeding. Upon a retrial of the case the above testimony of Jim Graves should be excluded.”

We find no basis in the record for the State’s contention that the testimony of Mrs. Orsech, as set out in the transcript, was not prejudicial and “reveals little information of any real significance to the issues of the case.” The transcript shows that Mrs. Orsech testified that she was the widow of the deceased; that she last saw him alive two days before his death; and that her deceased husband owned only one pistol, the one issued to him by the police department. It is true that the effect of such testimony was minimized by her subsequent testimony that, when she returned home on November 6, 1961, she found her husband’s police uniform, but no pistol. The State says her testimony that her husband had only one pistol was helpful to the State only if the jury disbelieved the testimony of witness Love about the pistol having been placed in the foot locker in Love’s home where it was later found; and that the admission of the testimony was harmless error and does not warrant a reversal. Whether the testimony was helpful or hurtful depended upon how the jury may have considered it and what portion of it they believed. If her husband owned .only one pistol and if it was in Love’s foot locker, the testimony of the witness might be considered in’ conflict with defendant’s testimony that Orsech had a pistol in his possession at the time the defendant shot him. In any event, we are satisfied that the admission of the transcript of this witness’ testimony was prejudicial and reversible error, and for this error the judgment must be reversed and the cause remanded for a new trial.

Among other assignments in the motion for a new trial is the contention that the court erred in refusing to instruct on manslaughter; that such an instruction was requested and refused and that the facts in the case warranted such an instruction. We think this assignment wholly insufficient, under the facts of this case, to comply with Supreme Court Rule 27.20 in that it does not set forth in detail and with particularity the specific grounds or cause therefor, in that it does not indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction. We cannot know (1) whether defendant wanted an instruction on manslaughter based upon violence to his person sufficient for an inference of heat of passion and, therefore, “lawful provocation”, which may reduce the grade of the crime in a homicide from murder to manslaughter (See State v. Creighton, 330 Mo. 1176, 52 S.W.2d 556, 561; State v. Porter, 357 Mo. 405, 208 S.W.2d 240, 243; State v. Edwards, Mo.Sup., 226 S.W.2d 592; State v. Finn, Mo.Sup., 243 S.W.2d 67, 72[12] [13]); or (2) whether defendant was requesting an instruction on manslaughter on the basis of one of the exceptions to the above rule, (a) as where defendant acts in defense of his property or habitation or (b) where he comes upon one engaged in illicit sexual conduct with a near female relative of defendant. See State v. Haynes, Mo.Sup., 329 S.W.2d 640, 646; State v. Bongard, 330 Mo. 805, 51 S.W.2d 84, 89; State v. Wright, Mo.Sup., 336 S.W.2d 714, 717. The record in this case contains evidence relating to each of these three grounds.

It would serve no useful purpose to minutely review the testimony in this record to demonstrate our view that the trial court did not err in failing to instruct on manslaughter on either of the three grounds because we may not forecast what other evidence may be adduced upon a retrial of this cause. However, to support our conclusion that the assignment is insufficient to comply with Supreme Court Rule 27.20, we may say that defendant’s testimony tended to show that he had known the deceased for some time and met him at the Bluebird Tavern on the afternoon of November 6, 1961, and that they left there in defendant’s truck, with deceased driving, and made several further stops for beer on the way home. Before they reached home they stopped and drank from a bottle of Vodka and deceased told the defendant of certain indecent liberties he had taken with the defendant’s fourteen-year-old stepdaughter, Judy, and of his having had sexual relationship with defendant’s wife on several occasions. During these conversations deceased exhibited a short-barrel, loaded revolver, .38 caliber, and told defendant that it cost $38. He laid it on defendant’s lap. Defendant also testified about getting into “a little squabble” about who should drive the truck and also about deceased requesting defendant to leave his wife and let deceased have her. Defendant testified that while they were both seated in the cab of the truck “we went to blows” and that deceased wanted to fight. How much “hot blood” arose as a result of these “blows” does not appear, nor does it appear who was the aggressor in this matter or how much the physical contest amounted to. Defendant testified that when he raised up in protest deceased threatened him with the revolver. Defendant then said: “Boy, if you will put your gun down, we will walk out in the road and I will thump you.” In any event, the two proceeded to stop at two further taverns for beers and then went on to defendant’s home, where they took seats together on the divan. Also it appears that defendant rested a couple of times on the foot of the bed and also went out on the back steps of the trailer “to get some air.” Further, it does not appear from the defendant’s testimony or other evidence that defendant did not initiate these “blows”, the inference is that he did, nor does it appear that deceased’s use of his pistol created any “hot blood” resulting in deceased’s death. See State v. Robinson, 353 Mo. 934, 185 S.W.2d 636, 639, 641; State v. Haynes, supra, 329 S.W.2d 640, 645; State v. Martin, Mo.Sup., 336 S.W.2d 394, 398; State v. Crouch, Mo. Sup., 124 S.W.2d 1185, 1187; State v. Smith, Mo.Sup., 240 S.W.2d 671, 674; State v. Kizer, 360 Mo. 744, 230 S.W.2d 690, 691 and State v. Finn, supra, 243 S.W.2d 67, 72 [12] [13].

As to the second possible basis for such an instruction, defendant testified that, after they had entered the trailer and were seated on the divan, with the deceased between the defendant and Judy, the deceased was playing with Judy’s leg and taking improper liberties with her and defendant punched him in the ribs and told him not to do so and “to act like a man.” According to defendant’s evidence this conduct did not bring about the shooting. However, defendant further testified that while defendant was outside the trailer he looked in and saw deceased standing behind defendant’s wife, who was standing by the sink fixing dinner. Defendant could see the back part of deceased moving in and out and deceased’s trousers were unzipped and his privates visible. There is no suggestion of any adultery at this particular time since defendant saw his wife using a dish rag at the sink and heard her say, “if you don’t get back I will throw hot grease on you.” Defendant then saw the deceased voluntarily stop his activity, put his privates back in, zip up his pants, and go back to the divan and resume his seat by Judy, watching television. After this defendant came into the trailer and lay upon the bed. Earlier in the evening he had heard of much worse conduct by the deceased. Defendant offered no testimony tending to show that the killing was the product of passion inspired by what he saw going on before his eyes. The facts distinguish this case from State v. Davis, Mo.Sup., 328 S.W.2d 706, 709.

Defendant further testified that twice during the evening after they had arrived at the trailer he had told deceased to leave and the deceased pulled the gun on him and when deceased got up from the divan defendant went to the back of the trailer and sat on the back steps. The first time defendant did not have his shotgun with him. The second time defendant didn’t go out. Defendant testified: “ * * * when I got to the door that goes out, I looked back and he is still sitting there and I stopped and I thought, well, I will get my gun. You have been playing guns all night. I will scare you out.” Defendant also testified: “ * * * so I run to the back of the trailer and I looked back and he was still sitting there, so I reached in the closet and got my gun and I went up and I said, ‘Damnit, I told you I want you to go — go ! ’, and Velma told him to go again, and I said, ‘Go! ’, and I pushed my gun barrel up in front where he could see it and then he pulled his gun there and I knew that he wasn’t going to sit there all night with a gun in his hand and me with mine. One of us was going to get it”, so defendant shot the deceased while he was sitting on the divan. Deceased’s simple failure to depart cannot, under the circumstances shown, be the basis for a manslaughter instruction. State v. Brookshire, Mo.Sup., 353 S.W.2d 681, 691-692. The mentioned assignment of error was clearly insufficient.

Error is also assigned in permitting the Coroner of St. Louis County, a mortician, to testify as to the cause of deceased’s death since the witness was not a qualified medical expert. No prejudicial error was committed in permitting this testimony in view of the facts concerning the injuries received and defendant’s subsequent testimony that he killed the deceased by shooting him with a shotgun. Defendant could in nowise have been prejudiced by this testimony. See State v. Foster, 355 Mo. 577, 197 S.W.2d 313, 325; State v. Truster, Mo. Sup., 334 S.W.2d 104, 109.

Error is further assigned on the admission of plaintiff’s Exhibit 7, a photograph of the deceased shown seated on the divan after his death. Defendant had testified that, at the moment he shot the deceased, the deceased was holding a pistol in his hand and that deceased’s hand was ■“laying right on the divan right beside him.” State’s Exhibit 7, taken after the shooting and before the body had been disturbed, shows both of deceased’s hands resting in his lap. Defendant contends the photograph was improper in rebuttal and that the exhibit was inflammatory and prejudicial and shed no light on the issues of the case. After defendant’s objection the court ordered the exhibit modified by covering the portion showing the wounds on the body and, as modified, the exhibit was received in evidence. The exhibit was properly admitted since it tended to impeach defendant’s testimony. See State v. McDaniel, 336 Mo. 656, 80 S.W.2d 185, 193 [5]; State v. Laspy, Mo.Sup., 298 S.W.2d 357, 361 [7-9]; State v. Finn, supra, 243 S.W.2d 67, 70 [3].

The final assignments state that the court committed prejudicial error in giving Instruction No. 3 because the instruction “erroneously stated to the jury the offense of murder in the second degree” and that the court erred in giving Instruction No. 4 on self defense, since the instruction “did not fully acquaint or instruct the jury as to the defense of self defense and ■deprived the defendant of a fair and impartial consideration of self defense by the jury.” These assignments are insufficient to comply with Supreme Court Rule 27.20. However, Instruction No. 3 is supported by State v. Richardson, Mo.Sup., 321 S.W.2d 423, 427; and State v. Myers, 221 Mo. 598, 613, 121 S.W. 131, 135.

The fourth paragraph of Instruction No. 4 stated: “But before you acquit on the ground of self-defense you ought to be satisfied that defendant’s cause of fear for his life or personal safety was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence you are to determine, and unless the facts constituting such reasonable cause have been established by the evidence in this case, you cannot acquit the defendant on the ground of self-defense, even though you may believe the defendant thought he was in danger.” (Italics ours.)

While the assignment in the motion for a new trial is insufficient to comply with Supreme Court Rule 27.20, nevertheless since the cause must be retried we should call attention to the fact that, although Instruction 4 substantially follows the wording of the self-defense instruction in State v. Sebastian, 215 Mo. 58, 114 S.W. 522, 527, 530; State v. Eaton, 355 Mo. 164, 195 S.W. 2d 457, 459; and State v. Porter, supra, 208 S.W.2d 240, 242[2], nevertheless, Instruction 4 in its fourth paragraph does employ some language held prejudicial in State v. Davis, 342 Mo. 594, 116 S.W.2d 110, 111 and in State v. Robinson, Mo.Sup., 255 S. W.2d 798, 799. In the Robinson case this court held that the use of the words “satisfied” and “established” in such an instruction would lead the jury into thinking that it was necessary for them to find that defendant had "established” his defense of self defense in order to acquit him on that ground, when, in fact, the burden always remained on the State to prevail on the issue of self defense beyond a reasonable doubt. In the event of another trial the instruction should be modified to conform to the recent decisions of this court.

For the error of the court in admitting the transcript of the testimony of Mrs. Elizabeth Orsech, as hereinbefore stated, the judgment is reversed and the cause remanded.

All of the Judges of the Division and STONE, Special Judge, concur.