author: WELBORN, Commissioner.

text:
    STATE of Missouri, Respondent, v. Lloyd Thomas DIXON, Appellant.
    No. 52675.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Selden M. Jones, Special Asst. Atty. Gen., Kansas City, for respondent.
    Shaw, Hanks & Bornschein, by Joseph Howlett, Clayton, for appellant.
   WELBORN, Commissioner.

Lloyd Thomas Dixon was charged by information in the St. Charles County Circuit Court with burglary in the second degree and stealing in connection with the burglary. Tried as a second offender (§ 556.280, RSMo 1959, V.A.M.S.), the jury found him guilty of burglary and stealing and the court fixed the punishment at consecutive 4-year sentences on each charge.

At around 2:00 A.M., June 17, 1966, the St. Charles Police Department received a call about a “break-in” at the North Side Liquor Store, located on North Third Street in St. Charles. Officers who went to that location discovered that a plate glass window in the front of the store had been broken, leaving an opening wide enough for a man to enter. Sergeant Kennedy was at the store for about ten minutes and was directed to search for the person or persons involved in the breaking. Sergeant Kennedy drove his police car to a point some 4½ blocks from the store and “went on stake-out.” After he had been parked for about fifteen minutes, he saw a man walking south on the railroad track. He recognized the man as Lloyd Thomas Dixon whom he had known for several years. Dixon appeared to be holding an object under his shirt, causing it to bulge. Sergeant Kennedy walked to within fifteen or twenty feet of Dixon and called for him to halt. Dixon started to run and the officer called, “Stop, Lloyd.” Dixon did not stop and the officer fired three warning shots. Dixon ran from the tracks to a brushy area along the river. The officer followed him a short distance, but was unable to overtake him in the muddy, brushy river bank area. Kennedy heard noises which indicated that the man he was pursuing was going back north along the river.

When daylight arrived, Kennedy went back to where the person he saw left the railroad track. Below the track, he found a black low oxford shoe and a fifth of “American Bourbon” whiskey. Tracks were made by a person wearing one shoe were visible in the mud and the officer followed them to where they crossed a log. The ground had been disturbed near the log and a few sheets of note paper, two keys on a ring and money were lying on the ground. A total of $7.19 in coins was found upon a search.

At around 7:30 that morning, an officer stationed at Dixon’s residence saw Dixon’s grandmother enter the house and carry out some clothing. The officer followed the woman to her residence. Policemen called to that location knocked at the door and when the grandmother answered, they asked whether Dixon was in the house. At first the grandmother said no, but then she or another woman said that he was sleeping in the bedroom. The officers entered the house and found Dixon lying over a bed, dressed in underwear shorts, sleeping. A pair of muddy trousers lay at the foot of the bed. No shoes were found in the room. Dixon was taken to jail barefooted.

Other than the police offiers, who testified to the above matters, the only witness who testified for the state was Mr. Walter Fetsch, the owner of the liquor store. He went to the store while the police officers were there and observed the broken window. He went inside the store and found, according to his direct testimony, that “the change” was missing from the cash register. (Although it is not entirely clear from the transcript, the witness apparently referred to the coins in the register as “change.”) He fixed the amount of “change” which had been taken from the register at $21.00. He also testified that two bottles of whiskey were missing from the shelves, one bottle of Jim Beam and one of American bourbon. Fetsch identified keys found near the log as keys which had been kept in the cash register at the store and which he had last seen there on June 16. The note paper found there was also identified by the witness as having been kept in the cash regis-ister at the store.

Several of appellant’s points in this appeal are related to the court’s ruling on his motion to strike the testimony of Fetsch that $21.00 and two bottles of whiskey were found by him to have been missing. The taking of these items was the basis of the stealing charge.

In his direct examination, Fetsch made some mention of what his “night man” did at the store, but it was only on cross-examination that Fetsch was shown to have left the store at 6:30 P.M. on the previous evening. Fetsch stated that the night man’s closing time was eleven o’clock. Thus, Fetsch did not have direct personal knowledge of the situation on the premises at the time of closing. The essential question on this appeal is the sufficiency of his knowledge, in such circumstances, to give probative value to his assertions that $21.00 in “change” and two bottles of whiskey were missing from the store.

As to the money, on direct examination, Fetsch stated that “the change” in the register was missing. When asked the amount of the missing “change,” he stated: “Well, I just can’t remember. I think around $21.00.” The fact that the witness used the term “think” would not render his testimony inadmissible (see Leathers v. Sikeston Coca-Cola Bottling Company, Mo.App., 286 S.W.2d 393, 396 [2-4]), but its use assumes some significance here in the light of the witness’s subsequent testimony. When asked how he computed the amount of money missing, he began several attempts to explain what the “night man” did, but the court sustained the defense objections to such testimony. Ultimately, the only colloquy to which no objection was made proceeded as follows :

“Q (By Mr. Dalton [prosecuting attorney]), But, at any rate, there was an amount of change missing in the sum of— A (interrupting) That’s light.
“Q (continuing) —$21.00? A $21.00, yes.”

Subsequently, and still on direct examination, the witness was asked whether or not he had a business practice which he directed “to be followed with reference to the amount of change or money that is left in your place of business on closing?” The witness replied in the affirmative and testified that the practice was to leave $65.00 in the store every night. That was the end of the direct testimony on the money.

On cross-examination, the witness was asked how he knew the amount of money in the cash register at closing time. The witness replied that the night man “puts it on a little piece of paper.” When this answer was received, the defense counsel moved to strike the witness’s testimony about the $21.00 in “change” on the grounds that it was hearsay. The court overruled the motion to strike, but directed the jury to disregard the particular answer about the night man’s notation.

On redirect examination, the state apparently sought to qualify the notation as a record kept in the usual course of business and adduced from the witness that the record was kept that night and that the witness saw it where it was supposed to be when he came into the store during the early morning hours of the 17th. The witness was then asked what the record stated. Objection to his answering on the best evidence grounds was sustained and no further evidence on this subject appears.

Other than the evidence pertaining to the $7.19 found near the log, the only evidence pertaining to money was a police officer’s testimony, over objection, that he had been “told to go back and talk to Lloyd’s grandmother about some money she supposedly had” and that he got “$12.55 worth of change” from Lloyd’s grandmother. Inasmuch as there was no connecting evidence relating to this sum of money, such testimony had no probative value.

“ * * * [N]ot every human assertion is to be accepted as the basis of an inference that the thing asserted is true. Wigmore on Evidence (3rd Ed.), Vol. II, Section 475, loe. cit. 516. And, it would seem to be elementary and self-evident that no witness should be heard with respect to that concerning which he does not possess the fundamental and basic testimonial qualification of knowledge; or, as succinctly stated many years ago, ‘(n)o one can be allowed to prove what he has never learned, whether it be ordinary or scientific facts.’ Elliott v. Van Buren, 33 Mich. 49, 53. So, when the testimony of a witness, read as a whole, conclusively demonstrates that whatever he may have said with respect to the issue under investigation was a mere guess on his part and that, in fact, he did not know about that concerning which he undertook to speak, his testimony on such issue cannot be regarded as having any probative value.” Barnhart v. Ripka, Mo.App., 297 S.W.2d 787, 791 [7],

Analysis of Fetsch’s testimony compels the conclusion that his testimony that $21.00 in “change” was missing from the cash register was not based upon his direct knowledge, but must have been based upon the information conveyed to him by the memorandum which he observed in the cash register. He testified to no practice as to the amount of “change” left in the register, only that $65.00 was customarily left there. However, he testified that only $21.00 was missing, so the $65.00 usually left had no significance. His “I think” answer on the original question as to the amount of missing “change” tends to negative the existence of any standard practice as to the amount of “change” left. Fetsch’s testimony that $21.00 “in change” was missing was not based upon the witness’s actual knowledge nor upon a proper basis to permit him to so testify. The trial court should have sustained the motion to strike the witness’s testimony on the subject. State v. Cain, Mo.Sup., 37 S.W.2d 416, 418 [5], [6,7].

The testimony about the missing whiskey is on a similar footing. The witness’s conclusion on this subject was based upon his observation that there were two empty spaces on the shelves on which the Beam and American bourbon were displayed. On direct examination, the witness testified that his business pratice required that the night man “fill the shelves and mark it down on a slip of paper what he puts on the shelves and sweep the floor and see that all the shelves are full before he leaves *

On cross-examination, Fetsch was asked whether he knew that the shelves had been filled on the night in question. He stated that he knew they were “(b)ecause my man told me.” Again the defense objection that the witness’s testimony on this subject was based on hearsay and that all of his testimony should be stricken was overruled. The court did strike the reply to the particular question.

The state suggests that the witness’s testimony rests on two bases: His knowledge of the business practice and what the night man told him. Obviously, Fetsch could not base his testimony on what the night man told him. State v. Cain, 37 S.W.2d 416; State v. Long, 336 Mo. 630, 80 S.W.2d 154, 159 [4].

Nor did the evidence of the so-called business practice provide a sufficient foundation for the witness’s conclusion. There was nothing to show how closely the practice was adhered to or whether the person on duty on the particular night knew of the practice. Thus circumstances here failed to demonstrate that the witness’s claimed knowledge, except for what his night man told him, had “adequate data as its basis of inference.” 2 Wigmore on Evidence (3rd Ed.) § 659, p. 770. See Perry v. Burton, 111 Ill. 138, 143.

The state suggests that the witness’s testimony about the business practice afforded a basis for the presumption that a state of facts once shown to exist is presumed to exist until the contrary is shown. See Martin v. Sloan, Mo.Sup., 377 S.W.2d 252, 256 [2], However, the problem here is establishing the pre-existing state of facts. Had the night man testified that when he closed the store, the shelves had been filled, the condition would be presumed to have continued until the breaking and have afforded an inference that an absence of bottles from the shelves was related to the breaking. Here, however, what is attempted to be shown is the previously existing condition, and the evidence failed properly to do so.

In view of the demonstration of the witness’s lack of knowledge of these matters, the trial court should have sustained appellant’s motion to strike his testimony. Although such testimony related primarily to the stealing charge, it also bore upon the element of entering under the burglary •charge and we cannot say that the verdict ■on both charges was not influenced by the testimony. Therefore, the conviction on both charges must be reversed.

We cannot agree with appellant’s ■contention that, in no event, was the chain of circumstances of the appellant’s guilt sufficient to sustain a verdict against him. We will not, in view of the necessity for a new trial in which the evidence might not be precisely the same, detail here the matters which lead to our conclusion in this regard. We cannot conclude that it would be impossible for the state to make a sub-missible case upon a new trial and, therefore, will remand the matter for a new trial. State v. Missey, 361 Mo. 393, 234 S.W.2d 777; State v. Watson, Mo.Sup., 350 S.W.2d 763.

Reversed and remanded.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


source: Caselaw Access Project

author: DONNELLY, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Claude Pintard ROBINSON, Jr., Appellant.
    No. 51991.
    Supreme Court of Missouri, Division No. 2.
    Oct. 9, 1967.
    Motion for Transfer to Court En Banc or for Rehearing Denied Nov. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Claude W. McElwee, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Lester Watson, Richmond Heights, for appellant.
   DONNELLY, Judge.

Appellant, Claude Pintard Robinson, Jr., was convicted of the felony of abortion under § 559.100, RSMo 1959, V.A.M.S., in the Circuit Court of the City of St. Louis, Missouri, and his punishment was assessed at imprisonment for three years. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.

Appellant, a licensed physician, was convicted of producing an abortion by use of instruments upon one Marilyn Meyer on August 28, 1963. Appellant does not question the sufficiency of the evidence. It is sufficient to sustain the conviction.

The question is whether evidence of three prior abortions produced by appellant upon Marilyn Meyer was properly admitted by the trial court. The first abortion occurred shortly before March 1, 1961, the second six months later, and the third six months after the second abortion.

“The well established general rule is that proof of the commission of separate and distinct crimes is not admissible, unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial. * * * Evidence of other crimes, when not properly related to the cause on trial, violates defendant’s right to be tried for the offense for which he is indicted.” State v. Shilkett, 356 Mo. 1081, 1086, 204 S.W.2d 920, 922, 923.

However, exceptions to this rule are as well established as the rule itself. One exception is that where the proof of other offenses may tend to establish intent, such other offenses are admissible in evidence. State v. Scown, Mo.Sup., 312 S.W.2d 782; State v. Reese, 364 Mo. 1221, 274 S.W.2d 304; and State v. Kornegger, 363 Mo. 968, 255 S.W.2d 765.

Section 559.100, supra, RSMo 1959, V.A. M.S., provides, in part, as follows: “Any person who, with intent to produce or promote a miscarriage or abortion, advises, gives, sells or administers to a woman (whether actually pregnant or not), or who, with such intent, procures or causes her to take, any drug, medicine or article, or uses upon her, or advises to or for her the use of, any instrument or other method or device to produce a miscarriage or abortion (unless the same is necessary to preserve her life or that of an unborn child, or if such person is not a duly licensed physician, unless the said act has been advised by a duly licensed physician to be necessary for such a purpose), shall, in event of the death of said woman, or any quick child, whereof she may be pregnant, being thereby occasioned, upon conviction be adjudged guilty of manslaughter, and punished accordingly; and in case no such death ensue, such person shall be guilty of the felony of abortion, and upon conviction be punished by imprisonment in the penitentiary not less than three years nor more than five years, or by imprisonment in jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment; * * (Emphasis ours.)

The element of intent is an essential ingredient of the offense. “The gravamen of the charge under the statute is the intent with which the instruments are used. * * * It is the ‘wilfulness,’ the intent with which the abortion is brought about, that makes the act or acts a crime.” State v. Fitzgerald, Mo.Sup., 174 S.W.2d 211, 215. The State “is under an affirmative duty to prove such intent, and, for this purpose, may introduce evidence of other similar offenses committed by the defendant, notwithstanding that the accused has relied upon a general denial rather than a plea of justification, or that there is other evidence available which would justify the jury in finding criminal intent in the absence of proof of other offenses.” 15 A.L.R.2d 1080, 1092.

The evidence that appellant produced abortions by the use of instruments upon Marilyn Meyer on prior occasions has a legitimate bearing on the question of appellant’s intent on August 28, 1963. It tends to show that appellant acted with criminal intent on August 28, 1963. The evidence was properly admitted for that purpose.

An examination of the record as required by Supreme Court Rule 28.02, V.A.M.R., discloses no error.

The judgment is affirmed.

All of the Judges concur.


author: BARRETT, Commissioner.

text:
    Pauline BURK, Respondent, v. MISSOURI POWER & LIGHT COMPANY, a Missouri Corporation, Appellant.
    No. 52478.
    Supreme Court of Missouri, Division No. 2.
    Nov. 13, 1967.

      E. J. Murphy, Butler, Max Von Erd-mannsdorff, Liberty, for respondent.
    Alan F. Wherritt, William J. Turpin, Wherritt & Turpin, Liberty, David Harrison, Jefferson City, for appellant.
   BARRETT, Commissioner.

The plaintiff, Pauline Burk, has been awarded $25,000.00 damages for the death of her husband by electrocution on May 3, 1965. The appellant, Missouri Power & Light Company, makes four points but they are all related to or connected with its principal contention that its motions for judgment should have been sustained for two reasons (1) that “the evidence failed to establish the fact that Harold Burk, the deceased, was in the exercise of due care and caution for his own safety and that the defendant’s negligence, if any, was the proximate cause of decedent’s death” and (2) that plaintiff’s husband was guilty of contributory negligence as a matter of law “(f) or failing to look where a duty to look existed and to see what was plainly visible if he looked.” In connection with these assignments it is said that Instruction 2, the principal instruction, was erroneous because (1) paragraph 3 “requires the defendant to foresee someone being injured by electrical energy from its power lines while erecting a TV antenna” and (2) that paragraph 4 submitting failure to warn was erroneous “because of the presumption in Missouri that persons of ordinary intelligence are presumed to know the danger from electrical energy and this presumption was not rebutted by any of plaintiff’s evidence.” The appellant’s specifications have been thus quoted to the end that there may be no question as to the specific issues precisely presented. There is no claim that Instruction 2 is erroneous in form, the objections are directed to the two substantive claims and their mere recitation delimits the issues as to a submissible case to the sole claims of foreseeability and proximate cause while the claim of contributory negligence relates only to the duty of the decedent in the circumstances to look and finally to know of the danger from what it calls “electrical energy.” In the argument pages of its brief the appellant says that the court erred in admitting certain evidence as to the lack of warning signs but aside from its intimate relationship and connection with the principal issues these statements have not been presented in the brief as formal assignments of error with citation of authorities as required by Civil Rule 83.-05(a), V.A.M.R. and are not therefore open, reviewable questions in this court. Cole v. Morris, Mo., 409 S.W.2d 668, 671; Marshall v. City of Gladstone, Mo., 380 S.W.2d 312, 314.

These are the background circumstances, particularly the physical surroundings, in which this action arose: Mr. and Mrs. Butts owned a plot of ground in Kingston, population 311, and across the back of the lot there was a woven wire fence. Above and along the fence the Missouri Power & Light Company maintained its 34,500-volt transmission lines, three uninsulated lines, one above the other, the bottom line being 23 feet 8 inches above the ground. There were no signs warning of the high voltage lines and no one had ever been personally warned of their danger. At the back of the lot, close to the fence, the Butts had a trailer which was supplied with electricity by the appellant. The respondent’s husband, Harold Burk, age 46, was a Baptist minister and church friend of the Butts and in September 1964 they permitted Mr. Burk to also locate his aluminum trailer on the back of their lot, adjacent to and about 1½ feet from the fence. The appellant’s serviceman was familiar with the location of the trailers and their proximity to the transmission line. Until April 1965 Nina Butts lived in the Burk trailer. The latter part of April the Burks’ son, Aubrey, age 22 when the case was tried, moved into the trailer so that he could conveniently attend William Jewell College, he was then in his third year, and at the same time keep his part-time job in a Kingston grocery store. Aubrey described the aluminum trailer as being “ten feet tall” and placed about 1½ feet from the fence.

These are the circumstances in which Mr. Burk was electrocuted: On May 3, 1965, Mr. and Mrs. Burk and their other son, Gregory, age 12, drove from their home in Galt to Kingston for the express purpose of installing a television antenna for Aubrey. They brought the aluminum television mast and antenna in their automobile. The antenna was about five feet wide, the appellant’s serviceman saw it measured and he said that its length was 21 feet 7 inches— according to him there was a difference of about two feet in the height of the antenna and the lowest transmission wire. Aubrey, Gregory and their father undertook to install the antenna, with a crowbar they first dug or “punched” a hole in the ground about 1 Yz feet deep “close to the end of the trailer,” at the southwest end near the fence, to receive the butt of the antenna mast. The mast and antenna were on the ground “(t)he very butt was right near the hole.” They of course knew that the transmission wires were there, had even discussed them, “he (the father) didn’t know, really, about them. He said we didn’t figure we would be touching them, anyway” and the fact was, according to all the testimony, there was never any contact between the antenna and the transmission line. But the three of them attempted to lift the mast and antenna upright and insert the pole or mast in the prepared hole but they were unable to do so. And so Aubrey, 5 feet 10 inches tall, climbed to the top of the trailer to grasp the mast when the father and Gregory brought it into an upright position. Aubrey atop the trailer was 10 feet from the ground, and could reach with upraised arms 7½ feet. He said that had the lowest transmission wire been “directly over the trailer,” standing on his tiptoes he could have “reached it.” But the transmission line was not directly over the trailer, as stated it was over the fence line and Aubrey standing on the trailer was 3 feet or 3½ feet north of the wire. He said, however, that upright the bars or arms of the antenna would be beneath the electric line. In any event, with Aubrey atop the trailer and his brother and father raising the antenna Aubrey took hold of the mast and Mrs. Burk described the occurrence: “I seen them a-raising the antenna. And I hollered ‘Watch out.’ And whenever it got that far (indicating) from it — it was just a ball o.f fire, like that, that jumped — it did not hit the wire at all.” Mrs. Burk said that the antenna never came closer than two feet to the wire — “It didn’t get no closer.” The last Aubrey remembered was that he “was holding the antenna and standing” and was knocked unconscious and his father standing on the ground was electrocuted.

In this background it is necessary to again note and repeat certain fundamentals: In the maintenance of its high-voltage transmission lines through the Village of Kingston the appellant owed the general “duty to exercise the highest degree of care to keep electric wires in such condition as to prevent injury to others who lawfully may be in close proximity to them, which is the rule in this State.” Gladden v. Missouri Public Service Company, Mo., 277 S.W.2d 510, 515. As a part of this general duty “ ‘an electric company employing wires highly charged with this subtle and violent agency in streets, highways, or other public places, is in duty bound either to insulate such wires or place them beyond the range of contact with persons rightfully using such streets, highways, or places, and to exercise the utmost care to keep them so.’ ” Failure to insulate was not submitted in this case but if it is not feasible or “ ‘it is impossible to fully insulate wires carrying such high voltage as these, then certainly the exercise of the highest degree of care requires that such wires be so isolated that they will not be likely to cause injury to persons in places where they may lawfully be and may be reasonably expected.’ ” (Emphasis supplied.) Erbes v. Union Electric Company, Mo., 353 S.W.2d 659, 664. And as to proximate cause and whether the appellant should have warned or “isolated,” the two grounds of negligence submitted, the problem is whether “under all the facts and circumstances in evidence, defendant, in the exercise of the highest degree of care, should reasonably have anticipated that someone lawfully in the area was likely to be injured as a result of contact with those high-voltage wires." Erbes v. Union Electric Company, 353 S.W.2d 1. c. 664; Lebow v. Missouri Public Service Company, Mo., 270 S.W.2d 713, 715. And finally in connection with these general rules and in determining the two substantive issues of liability presented here, proximate cause and contributory negligence, it must be remembered that this is an appellate court and “must consider the evidence in the light most favorable to plaintiff, must accord to him the benefit of all supporting inferences fairly and reasonably deducible from the evidence, and must disregard defendant’s evidence except insofar as it may aid plaintiff’s case.” Bridges v. Arkansas-Missouri Power Company, Mo.App., 410 S.W.2d 106, 108; Lebow v. Missouri Public Service Company, Mo., 270 S.W.2d 713, 714.

As stated, the appellant admits that there were no warning devices and its employees admitted that they had never warned anyone of the hazards inherent in a 34,500-volt transmission line and, of course, the dangers were not apparent from merely looking at the wires and as to foreseeability and all the issues involved here “ ‘it is the appreciation of, or the opportunity to appreciate, the peril in an instrumentality or condition, rather than a knowledge of its physical characteristics, that bars a plaintiff of recovery for negligence.” Bridges v. Arkansas-Missouri Power Company, Mo.App., 410 S.W.2d 1. c. 111. Aubrey and his father saw and talked about the lines but as the appellant’s lineman said it was not possible, even for him, to tell what kind of voltage is carried on a given line by looking at the wire. The National Electrical Safety Code, whether using the edition offered by the respondent or the one offered by the appellant, defines “isolation” in these terms: “To promote safety to the general public and to employees not authorized to approach conductors and other current-carrying parts of electric supply lines, such parts shall be arranged so as to provide adequate clearance from the ground or other space generally accessible, or shall be provided with guards so as to isolate them effectively from accidental contact by such persons.” 1948 edition, § 214, p. 96. Specifically, as to clearance of “supply conductors from buildings,” here above or within one and one-half feet of the trailer and in connection with Aubrey’s testimony, voltage supply conductors of 15,000 to 50,000 volts require a horizontal and vertical clearance of “10 feet plus 0.5 inch per kv in excess.” (p. 122.) Even so, as was pointed out in the Gladden case as to the National Safety Code “these are minimum standards and do not establish the complete duty of defendant under all circumstances.” 277 S.W.2d 1. c. 515.

Factually the distinguishing factor in this case, particularly with reference to the appellant’s established negligence in the two respects submitted and proximate cause, and Hamilton v. Laclede Electric Cooperative, Mo., 294 S.W.2d 11, and Foote v. Scott-New Madrid-Mississippi Electric Coop., Mo.App., 359 S.W.2d 40, is that in those cases there was an actual touching or contact with the high voltage line. In the Foote case, perhaps even inadvertently, a boy 16 years 7 months of age threw a copper wire attached to a tin can over the electric line. In the Hamilton case, Hamilton had worked on “high lines” for a public utility but in addition the Hamiltons in removing a pipe and pump from a well had to tilt it or lean it 12 feet before it came in actual contact with the electric line. As stated, Mrs. Burk said that the mast and antenna never came closer to the lower wire than two feet when “a ball of fire * * * jumped” and the antenna fell to . the ground. The appellant’s lineman in the Kingston area said that he had seen electricity arc up to eight inches but while he would not feel safe within two feet of 34,500 volts he said, “I don’t know how far it will arc.” The appellant called from A. B. Chance Company an expert witness who described arcing and while he spoke of a “conductor” he said that once these conditions existed “it may go several feet.” In Potter v. Sac-Osage Electric Cooperative, Inc., Mo., 335 S.W.2d 192, the electric current arced or •jumped “eight inches to a foot I’d say.” In Goddard v. St. Joseph Light and Power Company, Mo., 379 S.W.2d 565, a child sat on the curbing watching tree trimmers and was burnned when a limb from the tree struck a low voltage wire which in turn came in contact with a high voltage wire and “An arc occurred and both lines were severed.” In that case the court said, “The Power Company was charged with negligence in failing to post warning signs, in failing to erect guards to prevent contact between the 7200 volt line and the street light wire, and in failing to isolate the 7200 volt line.” (Emphasis supplied.) As to basic negligence, liability and proximate cause the court concluded, “it was for the jury to determine whether or not the maintenance of the lines in the manner here involved was negligence, it was likewise a matter for the jury to determine whether or not such negligence caused or contributed to the injury of Nason.” There is no claim here of an intervening cause but as to the tree trimmer’s conduct the court said, “The evidence does not require the conclusion, as a matter of law, that Helton’s negligence broke the chain of causation insofar as respondents are concerned.” (379 S.W.2d l. c. 567, 569.) And of peculiar interest to the appellant is Laudwig v. Missouri Power & Light Company, 324 Mo. 676, 24 S.W.2d 625, in which as to arcing the court noted that “Moreover, defendant’s manager stated on two separate occasions that he had known electrical current to arc or jump a distance of 6 to 8 feet, although this statement was denied by him when he took the stand.”

As to both negligence and contributory negligence and the appellant’s claim that there was no duty on its part to “foresee someone being injured by electrical energy from its power lines while erecting a TV antenna,” in Gladden v. Missouri Public Service Company, supra, an adult climbed a tree on a public highway “to catch a tame parakeet that got out of its cage” and was injured by a wire running through the tree. On foreseeability the court had this to say: “While the tree in this case was not a nut or fruit tree (in which the reason to anticipate persons would be greater), nevertheless we do not think we can hold as a matter of law that there was no reasonable basis to anticipate that an adult would be likely to be in a tree situated as this one was. On the contrary, we think this was a jury question.” It is not necessary here to indicate from the other cited cases the conduct electric companies have been required to anticipate; over forty years ago (Kessler v. West Missouri Power Company, Mo. App., 283 S.W. 705) an electric utility contended that it was under no duty tc anticipate that an amateur in installing a homemade radio aerial would be injured by an adjacent high voltage wire, but to note only one of the many observations peculiarly applicable to this case, the court said, “the radio, aerial, and ground wires were erected upon property owned by plaintiff and evidently with plaintiff’s consent, and it was within the province of the jury to say whether defendant, with the care mentioned, could have reasonably anticipated that a radio would be installed in plaintiff’s house, and in connection with the installation of the same some aerial wire or its accessories would be brought near the high-voltage wires of the defendant.”

In the detailed circumstances, as with foreseeability and proximate cause, it may not be said “that reasonable men might not fairly reach different conclusions on the evidence viewed most favorably from plaintiff’s standpoint. We, therefore, may not declare as a matter of law that plaintiff’s decedent was guilty of contributory negligence. We are of the opinion that the trial court properly left that question to the jury.” Lebow v. Missouri Public Service Company, 270 S.W.2d l. c. 717. Without further matching cases in the following cases, all previously cited in this opinion, it was held that negligence, including proximate cause, and the plaintiff’s contributory negligence “was properly submitted to the jury for its determination” Erbes v. Union Electric Company, 353 S.W.2d 1. c. 666; Gladden v. Missouri Public Service Company, supra; Bridges v. Arkansas-Missouri Power Company, supra, Kessler v. West Missouri Power Co., supra, and the arcing cases of Potter v. Sac-Osage Electric Cooperative, Inc., supra, particularly Laudwig v. Missouri Power & Light Co., supra.

For the indicated reasons the judgment is affirmed.

STOCKARD and PRITCHARD, CC., concur.

PER CURIAM:

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

FINCH, P. J., and EAGER & HOLMAN, JJ., concur.

DONNELLY, J., not sitting.


text:
    STATE of Missouri, Respondent, v. Willie D. WILLIAMS, Appellant.
    No. 52556.
    Supreme Court of Missouri, Division No. 1.
    Nov. 13, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, James P. Jouras, Special Asst. Atty. Gen., Kansas City, for respondent.
    J. Whitfield Moody, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.
   WELBORN, Commissioner.

By information in the Jackson County Circuit Court, Willie D. Williams was charged with murder in the first degree. Tried as a second offender, in accordance with § 556.280, RSMo 1959, V.A.M.S., he was found guilty of murder in the second degree. The court fixed a sentence of 25 years’ imprisonment and this appeal followed.

The victim of the homicide, which occurred in Kansas City on February 6, 1966, was Al Kirkland. The state’s evidence showed that the appellant, the victim and others had engaged in a dice game in the early morning hours at the apartment of Willie Kirkland, the brother of Al. Frances Kirkland, Willie’s wife, was the only eyewitness to the actual shooting. According to her, Al had called her into a room and told Frances that he wanted her to give some money to Al’s wife because they were separating; that, as Al was counting out some money, the appellant entered the room, pointed a pistol at Al, and demanded the money. The appellant fired one shot, and Al gave him the money. The appellant demanded “every penny” and fired further shots. Al fell to the floor, mortally wounded, and the appellant left the premises. He was arrested in Kansas City on March 16, 1966. The arresting officers said that appellant told them that he was involved in the shooting; that a woman had given Al the gun just prior to the shooting; that, as he and Al were struggling for the gun, it accidentally discharged. The weapon was not found.

Appellant, testifying in his own behalf, stated that he had gone to the apartment at Al’s invitation and that he had advanced Al $50 as a stake for the crap game which Al was promoting. According to appellant, he was to receive 50% of the winnings and Al was “pretty good with a pair of craps.” At first, Al’s luck was poor, but it turned, and he finally won all of the money in the game. According to appellant, he asked Al for his money and Al grabbed him by the neck and started choking him. Al pulled a pistol “and we were wrassling with the pistol, and it went off two or three times, and he fell on the floor, and I walked out the door.”

The sole question on this appeal relates to an amendment of the information on which appellant was tried. The original information, filed March 30, 1966, charged murder in the first degree. On March 31, defendant was arraigned on the information and pleaded not guilty to the charge of murder in the first degree. Trial was set for May 9, 1966, but did not take place on that date.

On May 23, 1966, the state filed an amended information, ostensibly intended to add allegations making the second offender act applicable.

On June 29, 1966, trial began. The state’s evidence was clearly aimed at proving a homicide and the defendant testified, as above set out, to establish his defense of accidental death.

On the second day of the trial, after the evidence had been closed, but before the court had instructed the jury, the state asked leave to amend the information. Over the appellant’s objection, the amendment was permitted. The words inserted by the amendment are italicized in the following final version of the information (omitting formal portions and the second offender charges) as amended at that time:

“ * * * [Ojn the 6th day of February, 1966, at the County of Jackson, State of Missouri, the said Willie Delanor Williams did wilfully, feloniously, premedi-tatedly, and deliberately and of his malice aforethought, make an assault in and upon the said Al Kirkland with a dangerous and deadly weapon, to-wit: A pistol loaded with gunpoivder and leaden balls, there and then inflicting on the said Al Kirkland a mortal wound, and from said mortal wound the said Al Kirkland within one year thereafter, February 6, 1966, at the County of Jackson and State of Missouri, died.”

The appellant’s objection to the amendment was that the information on which the trial had been conducted charged only common assault, and that the amendment caused it to charge a new offense. The trial court ruled that the amended information had contained a typographical error; that the defendant was not surprised and that no harm came to the defendant by the amendment. On this appeal, appellant contends that the right to amend the information at the close of the evidence was limited by Supreme Court Rule 24.02, V.A.M.R. That rule permits amendment of an information “at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” The appellant does not challenge the trial court’s conclusion that the original amended information contained typographical errors nor does he claim that the amendment permitted in any manner surprised appellant.

There can be no doubt that the state and the defendant proceeded to trial on the theory that the charge against the defendant was murder in the first degree. A venire of 47 jurors was obtained. This is the number which would be required under § 546.180 for the trial of a capital case. The state offered detailed evidence, without objection, as to the cause of Kirkland’s death. The coroner testified as to the result of an autopsy on the body of the deceased and that the cause of the death was gunshot wounds. Other than the defendant, whose version of the events was given above, the defense offered two witnesses. One testified that he had seen Kirkland earlier in the evening and that he had a pistol in his belt. The other, the defendant’s girl friend who went with him to the Kirkland apartment, testified that the defendant had no weapon that night and did not own a gun. Thus, all of the defense evidence was directed toward refuting a charge of murder.

In these circumstances, the fundamental requirements of Supreme Court Rule 24.02, V.A.M.R., were met. There was no amendment which charged a different offense than that on which the trial had actually been conducted. Nor was there any basis for claims that the defendant had been surprised or otherwise prejudiced by the amendment which brought the information to charge the offense against which the defense had been directed.

This case differs from that of State v. Thompson, Mo.Sup., 392 S.W.2d 617, relied upon by appellant. In Thompson, the original charge of attempted robbery had been changed, by amendment, to assault with intent to rob. No preliminary hearing had been afforded on the amended information. The court held that the change in the information to charge a new and different offense was not permissible and set aside the conviction for assault with intent to rob. Here, the amendment supplied an omission and did not result in a charge other than that originally stated in the cause. There is no showing, on the facts of this case, of prejudice to the appellant and the ruling of the trial court was not erroneous.

Appellant’s brief, in this court by appointed counsel (appellant had counsel of his own choice on the trial), sets out two matters raised in appellant’s motion for new trial, but states that counsel on the appeal are unable to find authority to support the assignment. This is not sufficient allegation of error to preserve this matter for review. State v. McLachlan, Mo.Sup., 283 S.W.2d 487, 489(5).

We find no error in the matters of record examined pursuant to Supreme Court Rule 28.02, V.A.M.R.

The judgment is affirmed.

HOUSER and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: HOUSER, Commissioner.

text:
    STATE of Missouri, Respondent, v. William B. GOOCH, Appellant.
    No. 52585.
    Supreme Court of Missouri, Division No. 1.
    Oct. 9, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied Nov. 13, 1967.

      Norman H. Anderson, Atty. Gen., Jefferson City, Jack L. Eisen, Asst. Atty. Gen., John, for respondent.
    Russell T. Keyes, Jefferson City, for appellant.
   HOUSER, Commissioner.

William B. Gooch was charged with escape from Missouri State Penitentiary under § 557.351, V.A.M.S., and with the prior commission of a felony under § 556.280. Found guilty and sentenced to 2½ years in the custody of the department of corrections, he has appealed.

That part of the information relating to the offense of escape charged that “on the 7th day of June, 1966, at Cole County, Missouri, the defendant, William B. Gooch, was lawfully confined in the Missouri State Penitentiary, an institution under the control of the State Department of Corrections of the State of Missouri, and the said William B. Gooch did unlawfully and feloniously escape therefrom and go at large, against the peace and dignity of the State.”

Section 557.351, V.A.M.S., provides that—

“Any person sentenced to the state department of corrections upon conviction of escaping or attempting to escape from any state institution in which he was lawfully confined, or from the lawful custody of any person while being transported, shall be sentenced to the department of corrections generally for a term of not less than two and not exceeding five years.”

Defendant, convicted of forgery and sentenced to 3 years confinement in the custody of the department of corrections in an institution designated by that department, was received at Missouri State Penitentiary and assigned to the Renz Farm, a prison farm owned by the State of Missouri. He was transferred to the farm “from the walls.” He had been at Renz Farm five months or so when the alleged escape occurred. On June 7, 1966, while defendant was under the jurisdiction of the department of corrections, James Green, an employee of the department, picked up defendant at Renz Farm and took him to the greenhouse located on State Farm No. 1, where defendant was assigned to work. Defendant, a trusty, was left there at 7:30 a.m. with two other prisoners who were on the same work detail. The building was not locked. There were no guards. A prison officer routinely took the trusties to and from the greenhouse to Renz Farm, where they ate and slept. Prisoners were taken there under a standing order of the superintendent of the Renz Farm to work in the greenhouse. At the greenhouse they were “on their own,” but were “supposed to stay” there; they were not “supposed to be any place else.” At 10 a.m. officer Green returned to the greenhouse to pick up the prisoners and take them back to the farm for their noon meal. Defendant was not present. The other prisoners did not know his whereabouts. Search of the immediate area did not disclose defendant. Bloodhounds led the officers to defendant, who was found 2 to 21/2 miles east of the greenhouse, under some brush. When found he was not wearing a prison uniform. He had changed into a blue jacket. He had some clothes in his possession, and a box in which there was a road map of the State of Missouri, a knife, a pair of pliers, several candy bars and soihe canned meat. When found defendant was off state property, about 1½ or 2 miles east of the boundary line of State Farm No. 1 (the property on which the greenhouse is located).

The first question is whether the court should have directed a verdict for defendant for failure of proof. The contention is that he was charged with escape from the penitentiary but that he was not in the penitentiary and did not escape from the penitentiary, that he was assigned to Renz Farm and that under the state’s evidence he escaped from State Farm No. 1. Appellant further asserts failure of the state to establish that the penitentiary is a part of the department of corrections, or that the penitentiary is an institution designated by the department for his confinement, or that State Farm No. 1 or the greenhouse located thereon is a part of the penitentiary.

State v. Betterton, 317 Mo. 307, 295 S.W. 545, cited by appellant, holds that there is a fatal variance between an information charging escape from the penitentiary and proof of an escape by a convict detained at a state prison farm; that § 3161, RSMo 1919 [and not § 3162] was framed to cover such escapes. The Better-ton case, however, is no longer controlling in view of the later en banc decision in Ex Parte Rody, 348 Mo. 1, 152 S.W.2d 657, in which it was held that the words “confined in the penitentiary” appearing in § 4307, RSMo 1939, apply to a petitioner who was at a sawmill camp operated by the penitentiary and not in the penitentiary when he escaped (and that he was therefore deprived of the benefits of the three-fourths rule under § 9086, RSMo 1939). The court, referring to the three sections of the statutes on escape, said that “under their provisions any convict held in custody under a commitment for the service of a penitentiary sentence is at least constructively ‘confined in the penitentiary,’ whether he be going to the penitentiary, or in the penitentiary, or outside under guard.” Appellant was constructively confined in the penitentiary on June 7, 1966, when he was stationed at the penitentiary greenhouse. When he escaped from the state farm on which the greenhouse was located he escaped from a “state institution in which he was lawfully confined,” within the meaning of § 557.351.

As a matter of law the penitentiary is a part of the department of corrections. Section 216.020, V.A.M.S. provides that the department of corrections has power to control and jurisdiction over all adult correctional and penal institutions and activities in this state and § 216.365, V.A.M.S. provides that “There shall continue to be maintained as an institution within the department of corrections at the City of Jefferson, in the County of Cole, a state penitentiary * * * .” (Our italics.) State’s Exhibit 2, a record of the department, shows that defendant was committed to the penitentiary.

Further, the penitentiary is an institution “designated by the Department of Corrections.” The provision in the sentence and judgment that defendant be confined in the custody of the department of corrections “in an institution or institutions designated by said department” does not require a formal act of designation or certification of the penitentiary as an authorized, qualified and approved place of confinement, in order to punish for escape therefrom. This wording refers to the action of the division of classification and the classification committee in assigning the prisoner under §§ 216.211 and 216.212, V.A.M.S. See the cognate situation and similar ruling in McCullough v. United States, U.S.C.A., 8 Cir., 369 F.2d 548 [2].

We further rule that Renz Farm was designated as a place of imprisonment for defendant and that Renz Farm, State Farm No. 1 and the greenhouse located thereon are operations under the control of the department of corrections and are part and parcel of the penitentiary. There is evidence that defendant was assigned or transferred “from the walls,” which in common parlance means from the main penitentiary, to the Renz Farm. The penitentiary record recites that on January 26, 1966 defendant was assigned to “Renz F.” That the state prison farms are within the jurisdiction of the department of corrections is manifest. § 216.525, et seq., V.A.M.S. Harry Lauf, records officer employed by the department of corrections, testified that the greenhouse is located on the property commonly known as the “old Women’s Prison” and also known as “Old Farm No. 1”; that this is situated adjacent to the east wall of the main penitentiary and is a part of the Missouri State Penitentiary.

It is urged that there is no testimony that the defendant “ever left state property or of an escape or attempted escape from any place.” Andrew Volmert, corrections officer assigned to the bloodhound team, testified that he did not think that the place where defendant was found was part of the ground of the department of corrections; that from his knowledge of boundaries he would say that the defendant was found about 1½ or 2 miles east of the boundary of Farm No. 1.

That defendant was lawfully confined; that he left the greenhouse and departed from state property in violation of orders; that he was found 2 to 2½ miles east of the place where he was supposed to remain; that he was found in hiding; that he had changed into civilian clothes and had in his possession numerous articles of aid and assistance to one who is escaping, constitute sufficient evidence to justify a finding beyond a reasonable doubt that defendant intended to escape and was guilty as charged. The court did not err in overruling defendant’s motions for a directed verdict at the close of the state’s case and at the close of all the evidence.

Appellant’s second point is that the court failed to instruct the jury in writing upon all questions of law necessary for their guidance, as required by Criminal Rule 26.02 (6), V.A.M.R., by failing to instruct on the two defenses of lack of intent to escape and double jeopardy. The alleged error was not presented to the trial court in the motion for new trial, and therefore has not been preserved for appellate review. There was an allegation that “the verdict is against the law under the evidence” and appellant seeks a review under that allegation, but this general allegation in the motion for new trial was insufficient to present the question to the trial court. Criminal Rule 27.20 (a); § 547.030, V.A.M. S.; State v. Alberson, Mo.Sup., 325 S.W.2d 773; State v. Ronimous, Mo.Sup., 319 S.W.2d 565; State v. Foster, 335 Mo. 577, 197 S.W.2d 313. Not having raised the point in his motion for new trial, appellant may not raise it in this court for the first time. State v. Caffey, Mo.Sup., 404 S.W.2d 171; State v. Butler, Mo.Sup., 310 S.W.2d 952; State v. Hopkins, 278 Mo. 388, 213 S.W. 126; State v. Perrigin, 258 Mo. 233, 167 S.W. 573; State v. Douglas, 258 Mo. 281, 167 S.W. 552.

Appellant’s third point goes to the sufficiency of the information, it being urged that the information failed to fully inform defendant of the previous offense with which he was charged, in that it fails to state that the offense was punishable by imprisonment in the penitentiary of the State of Missouri, or that he was sentenced to that penitentiary, or where he was imprisoned. The paragraph of the information relating to the prior commission of a felony charged that defendant had been convicted of forgery in the Circuit Court of Dunklin County, Missouri, “an offense punishable by imprisonment in the penitentiary,” on December 13, 1965; that defendant was sentenced to imprisonment for a 3-year term, and that in accordance therewith was “duly imprisoned.” This was sufficient to inform defendant of the previous felony conviction with which he was charged. The necessary inference from these allegations is that the charge, sentence and imprisonment referred to the Missouri penitentiary. If in order to answer this charge defendant needed further enlightenment he had ample time and opportunity to move under Criminal Rule 24.03 for a bill of particulars. He had competent and experienced counsel. By his failure to move for a bill of particulars defendant waived any claim he may have had to more specificity in this regard. City of St. Louis v. Capitol Vending Co., Mo.App., 374 S.W.2d 519; State v. Haynes, Mo.Sup., 329 S.W.2d 640.

Point IV is that the court “erred in admitting the testimony of Plaintiff’s Witness Green, his name not having been endorsed on the information.” When defendant’s counsel objected on this ground the prosecuting attorney stated to the court that he would have no objection to a continuance. Defendant’s counsel demurred to this suggestion, whereupon the court offered to declare a recess to give counsel an opportunity to interview Mr. Green. This was declined. The court then offered to grant defendant “time” and this was declined. No affidavit for surprise was filed by defendant. The type of testimony Mr. Green gave might readily have been contemplated. He was the officer who delivered defendant to the greenhouse and who reported him missing when he went back at 10 a.m. to fetch him for lunch. We find no prejudice to defendant in the action taken; nothing but a reasonable exercise of the trial court’s considerable discretion. State v. Thost, Mo.Sup., 328 S.W.2d 36, 38.

Appellant’s last point is that the court erred in refusing to admit in evidence certain testimony sought to be elicited from defendant’s witnesses Tony Lopez and Fred Ryan. Lopez, one of the three prisoners transported to the greenhouse on the morning of the alleged escape, was asked on direct examination whether he had been accused of plotting an escape with defendant. An objection to this question was sustained. Nevertheless the witness answered “Yes, I was accused * * whereupon the court directed the jury to disregard the answer. Lopez was then asked whether he, Lopez, had been “sent over to the ‘hole’ ” after defendant was brought back in the penitentiary. Between objection and ruling sustaining the objection he answered “I was sent to the ‘hole.’ ” The prosecuting attorney requested that his answer be stricken and that the jury be instructed to disregard it. No ruling was made on this request. We find nothing prejudicial to the rights of the defendant in either of these rulings. Both bits of evidence were immaterial and inconsequential.

Ryan, who worked with defendant, testified that he had a conversation with defendant in the penitentiary after his return concerning defendant’s intent on the day in question, but on objection the witness was not permitted to testify further as to the conversation. Appellant made no offer of proof. In his brief appellant states that if permitted to testify this witness “would have testified as to whether Defendant has intended to escape or not.” Appellant does not definitely state that the witness would have testified that defendant told him he did not intend to escape, but askuming that he would have so testified, such declarations by a defendant in his own interest, not shown to have been made as a part of the res gestae (he said the conversation was “out in the yard, one day, [while] pitching horseshoes”), were properly excluded as self-serving.

The statutes relating to escapes from prison were changed in the Seventieth and Seventy-First General Assemblies. Sections 557.350, 557.360, 557.370 and 557.400, RSMo 1949, were repealed by Laws 1959, H.B. No. 10, § 1, and one new section to be known as § 557.351 was enacted. By Laws 1961, p. 331, section 557.351, RSMo 1959, was repealed and one new section to be known by the same number was enacted in lieu thereof. Although the information in this case follows the language of the first clause of Laws 1959, H.B. No. 10, § 1 more nearly than it follows the latest enactment on the subject, it nevertheless charges the essential facts. The gist of the offense proscribed by § 557.351 as that section is now written is escape or attempt to escape from a state institution in which a person is lawfully confined. While the information does not in terms charge that defendant was a “person sentenced to the state department of corrections”, the allegation that defendant was lawfully confined in an institution under the control of that department is a charge of similar import and is the legal equivalent. The information is sufficient to support the judgment of conviction but we suggest that the better practice would be to charge escape in the language of present § 557.351.

We find the trial court’s finding of a prior conviction, the verdict, and the judgment and sentence proper in form and substance, with the exception that defendant was sentenced to serve the time “to” instead of “in” the custody of the department of corrections. The intention, however, is clear and the misuse of the word “to” is inconsequential.

Appellant was represented throughout, both in the trial and appellate proceedings, by a lawyer. He was granted allocution. The punishment is within the legal limits. We find no prejudicial error.

Accordingly, the judgment is affirmed.

WELBORN and HIGGINS, CC., concur.

PER CURIAM:

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

All of the Judges concur.

      . in violation of § 3162, RSMo 1919 (escape from the penitentiary, while there confined, without breaking prison)

      . (escape from custody of the officers while out of prison under guard)


text:
    Louis WALLACH, Mollie Wallach, his wife, Shirley Kash and Richard Wallach, Respondents, v. Jack JOSEPH and Harold Friedman, Appellants.
    No. 51513.
    Supreme Court of Missouri, Division No. 2.
    May 8, 1967.
    Motion for Rehearing or to Transfer to Court En Banc Denied June 12, 1967.
    Certiorari Denied Nov. 13, 1967.
    See 88 S.Ct. 335.

      Stephen A. Boggiano, Boggiano & Hes-sel, St. Louis, for respondents.
    David K. Breed, St. Louis, for appellants.
   DONNELLY, Judge.

This is a suit in equity involving title h> real estate located on Lucas and Hunt Road in St. Louis County, Missouri.

On January 16, 1961, plaintiffs Louis-Wallach and Mollie Wallach signed a Receipt for Earnest Money, which acknowledged receipt of the sum of $7,100 from defendant Harold Friedman as earnest money and part payment on purchase of the real estate, “which property is this day sold to Harold Friedman, his successors or assigns for the total sum of Sixty-nine Thousand and no/100 ($69,000.00) Dollars.” On March 9, 1961, plaintiffs Louis Wallach and Mollie Wallach signed a Warranty-Deed naming defendant Jack Joseph as grantee. At the time these documents were executed, the real estate was incumbered by a first deed of trust and a second deed of trust. On November 20, 1962, Louis Wal-lach and Mollie Wallach conveyed by quitclaim deed to plaintiff Shirley Kash as straw party for plaintiff Richard Wallach. Shirley Kash is a sister of Louis and Richard Wallach.

Plaintiffs brought this suit against defendants to determine title, to reform or set aside the instruments dated January 16, 1961, and March 9, 1961, and to cancel defendants’ asserted interests in the real estate. The trial court decreed Richard Wal-lach to be the owner in fee simple of the real estate and found defendants have no title or interest therein. The trial court in its decree gave defendant Harold Friedman credit for payments and improvements made by him, restoring the parties to their original positions. Defendants appealed to this Court.

The facts are complicated and we shall recite only those which bear on the issues raised on appeal. Prior to the transaction in question, title to the real estate was in Louis Wallach and Mollie Wallach. In January, 1961, Louis Wallach, who operated a salvage yard on the premises, found himself in financial trouble. He was in default on the first deed of trust. Friedman came to see Louis Wallach and they discussed a disposition of the real estate.

According to Louis Wallach, they entered into an oral agreement whereby Friedman was to pay $2,737.14 to avoid foreclosure on the first deed of trust, pay in full an indebtedness of $10,000 secured by the second deed of trust, and advance $10,000 for working capital. He testified that a corporation was to be formed to take title to the real estate, with each owning one-half of the capital stock.

According to Friedman, no such oral agreement existed. He testified that there was no agreement for the formation of a corporation to be equally owned by the parties, and that the transaction was an outright sale as evidenced by the Receipt for Earnest Money and Warranty Deed.

There is an irreconcilable conflict in the evidence as between Louis Wallach and Harold Friedman. Therefore, the testimony of William J. Becker, a practicing attorney in Clayton, Missouri, is important. His testimony on direct examination, in part, is'as follows: “Q Did you ever have occasion to meet with Mr. Louis Wallach and Mr. Harold Friedman in connection with this transaction? A Yes, sir. * * * Q Will you tell us what matters were discussed in your office at that time? * * * A Wallach I believe was there first waiting and then Mr. Friedman came in and my recollection is that he had with him an earnest money agreement dated that day, no, I take that back, that was prepared at least in part in my office and they stated that because Mr. Wallach was unable to raise the necessary payment to meet the first mortgage payment at the time and the taxes were delinquent and there was a, one judgment that was a lien on the property outstanding and Wallach run out of cash, operating capital, that he had entered into an agreement with Mr. Friedman whereby they would become partners in this used car parts business or salvage business as it is so-called and that they would transfer the property to a corporation to be formed by them, that Mr. Friedman would furnish the necessary money to pay off or pay up the current taxes and he would make the payment that was now due to the heirs of the estate that held the first mortgage and various other payments which were later reflected in writing which I have here and Lou who put in his equity in the property. Now, they estimated that what Mr. Wallach— Mr. Friedman would have to pay up would be about $7100.00 or thereabouts and there was $48,000.00 on the first and $10,000.00 on the second. Now, this was an estimated amount on the second and the first was estimated at $48,000 at that time pretty close. Mr. Friedman insisted that he had to have an earnest money contract in order to make the bank, that the State Bank of Wellston or better, people associated with the State Bank of Wellston who owned the second, the bank didn’t own it, I believe called Bond Investment Company controlled by some of the officers of the State Bank of Wellston owned this second and he had to make them believe that he was buying the property in order to, for him to be in a position to settle that second for $10,000.00. Q Where did you get that information, from whom? A From Mr. Friedman, he told me this in very plain unmistakable language. * * * Q Did they discuss just how much money, if any, that Mr. Friedman was to put up in connection with this business enterprise? A Well, that day, Mr. Friedman put up $2737.14 which was delivered to Mr. Obrock for the benefit of the holder of the deed of trust and for the payment of the taxes. A That was to stop foreclosure to be held that day? A Yes, sir, to be held that day and $2281.90 was to cover the foreclosure and $425.00 to cover the back taxes. Q When they were in your office before you went over to the Title Insurance Corporation of.fice to deliver the money to stop the foreclosure, did they tell you that there had been any definite agreement as to just exactly how much money Mr. Friedman was to put up into the business? A Not in addition to these payments that were necessary to clear up the property so that it would be clear of everything but the first and the first would be current, taxes would be currently paid in addition to that one of them said and the other, whichever one said it, the other didn’t deny it, that Mr. Friedman was to put in $10,000.00 operating cash into this corporation. I am sure now that I am thinking of it, I am sure it was Mr. Friedman that, he insisted that is what he was going to have to do to make this work. * * * Q Was there anything said about it on January 16 while Friedman and Mr. Lou Wallach were in your office about what was to be done with respect to the second deed of trust on the property ? A Mr. Friedman was to pay that off. Q And the property, did they discuss the property to be put in a corporation? A I stated before that that was what they planned to do and each would get half of the stock of the corporation and I was to form the corporation for them. * * * Q I show you Plaintiffs’ Exhibit 32 which is your copy, office copy of the earnest money and receipt, there is a consideration inserted there,__ $69,000.00, you know whether that was inserted by you in the office or was that already in there? A That $69,000.00 is obviously on the typewriter of my office and it was, if I recall, figured up this way; first deed of trust, $48,000.00, second deed of trust, let us say for the time being, $10,000.00, that would give you $58,000.00. The Stockhammer judgment $1000.00, that would give you $59,000 and the $10,000.00 cash to be put in for the corporation of the business, that is roughly it. They arrived at that quick in my office that morning. Q And that is how they arrived at the figure to your knowledge of $69,000.00? A Only purpose of showing the bank. * * * Q Now, do you have any independent recollection of what occurred on the 9th of March, 1961? A Yes, sir. We met again. My recollection is that it was in the title company office and it was not until we got over there that — you see, there were other details of this agreement to be carried out before the corporation could be formed or the property deeded to the corporation to be formed. There were other moneys to be paid. Now, at that time we prepared another closing statement and my recollection is that it was signed and approved by both Mr. Wallach and Mr. Friedman and each took his signed copy. * * * Q Was there anything said at that meeting on March 9, 1961 about this corporation that was to be formed ? A Yes, sir. Q Do you recall what was said then ? A That as soon as they could work out the details they would form the corporation. Q Now, was there a deed prepared at that time to this property? A Yes, sir. * * * Q Do you recall when it was signed in your office; on that date was Mrs. Mollie Wal-lach present? A She came in to sign it I believe the day before. Q Was the deed complete in all respects? A Yes, sir. Q Was the name of Jack Joseph in the deed, do you recall? A No, not when she signed it, because we didn’t know his name at that time. Q Do you know when the name of Jack Joseph was inserted in the deed? A It was inserted in the deed. Q Was that done in your office? A In my office on the same typewriter later in the day after Mr. Lou Wallach and Mr. Harold Friedman agreed on Jack Joseph as a straw party. Q Did they discuss that in your presence? A Yes, sir. Q What did they say about Mr. Joseph being a straw party, if anything. A I suggested that we should leave the deed either with Mr. Obrock or someone else and later put the corporation name in it when the corporation was formed, that would probably be the most convenient way to do it, but Mr. Friedman suggested he thought that unless he could get this in his name he didn’t think he would have any luck with the holder of the second to settle that for that $10,000.00 figure and he would have to have it in someone’s name that he and Lou discussed and I said, well, now, do you want it in your name and give us a private receipt for it which I would have described the whole deal and he said no, he didn’t want it in his name. I didn’t press for reason on that. Q And who suggested the name of Joseph, do you know? A Mr. Friedman did. Q And he said that he was to act as straw party, is that my understanding? A No, he asked if Joseph would be all right and Lou Wallach said yes, I know him well. Q They weren’t conveying this property to Mr. Joseph because he was to be the real owner, were they ? A The two of them in my presence, he would be a man who they would both trust to hold the title until the corporation could be formed in the meantime that Mr. Friedman would pay off the second. Mr. Friedman was the man who would be paying the second back rather than Lou Wal-lach. * * * Q And then would you have anything to do with the deed after it was signed up and Joseph’s name was put in there? A I don’t know whether the title company man recorded it or Mr. Friedman recorded it. I did not. Q But it was agreed that it would be recorded? A Yes, sir. Q And Mr. Joseph later on would give a deed to the corporation? A That was the understanding and both men trusted him to that extent. * * * Q When was the next occasion that you had any meetings with the parties if you did have a meeting? A Well, I think that I had a number of conversations with Mr. Friedman in the meantime and with Mr. Lou Wallach in the meantime about this matter and the corporation was not formed. The judgment was not satisfied. The note was not paid and the business agreement was never consummated. The whole matter was as we left it on the 9th of March, in the terminology of the lawyer, is what we call non-consummata, is nothing happened after that. * * * Q When you talked to Mr. Friedman what was the general nature of your discussion? A Well, first of all, when he was going to get around to tell me what he wanted in the way of a corporation, whose name on the stock and how much par value and the details about it. I never could get him to, neither could Mr. Lou Wallach. * * * Q I believe there was a time sometime in November of 1962 when the property was again being advertised for sale under foreclosure and I believe Mr. Lou Wallach arranged with his brother to put up the necessary funds to take it over, were you present on that occasion? A I think that you negotiated on behalf of Richard Wallach in my office with me and with Lou. Q And Mr. Richard Wallach did agree to put up the money to stop the foreclosure and upon condition that Mr. Lous Wallach deed the property over to him ? A No, that was one of those, what I call a walking deed, you know, he gave him a deed all right but it wasn’t to be good unless Lou Wallach failed to pay the money back at a certain time. Q Did he ever pay the money back ? A I don’t know this. * * * Q Mr. Becker, at the time this earnest money contract was signed by Mr. Wallach and his wife and Mr. Friedman on January 16, 1961 and when this closing statement was prepared, did any of the parties ever tell you there was to be an actual sale of the property? A No, I made that plain. They told me this was an arrangement whereby they would both get into business together as partners.”

On cross-examination, Becker testified, in part, as follows: “Q Now then, then Bill, did you discuss with Mr. Friedman the formation of that corporation? A Yes, sir. Q Now, was that sometime after March the 9th or was it prior? A On March 9 before we left my office it was my thought that I would make a deed to Friedman to this property which would be signed by Lou and Mollie Wallach and take back from Friedman a receipt outlining all of the terms of this proposed partnership .agreement to be put in the form of a corporation. I so stated to them, then Friedman •said, no, we can’t do it that way and I •didn’t press it. I got to put for the time being in the straw party’s name. I don’t want that property to be in my personal name in the interim. Then I said, well, who is your straw party and after some hesitating and I didn’t think he would know right off hand and he said, how about Jack Joseph and he looked at Lou, I know him, that’s all right with me, Lou said. * * * Q Nothing abnormal about this transaction at all, was there? A Nothing. * * * Q (By Mr. Moore) This quit claim deed from Mollie Wallach and Lou Wallach to Shirley Kash, that’s the one that I was talking about? A Yes, sir. * * * Q On the ,20th of November, 1962. A That would be -the date, yes, sir. Q Now, Mr. Becker, was there any reason for preparation of this deed and the assignment of Lou Wallach’s interest to his sister and the brother ? A Of course. Q What was that? A First of all that Richard paid the then dire payment on the first deed of trust to save it from foreclosure, and second of all, there was this agreement and assignment between that that outlines the consideration, and third, they were brothers, weren’t they? A Yes. A That’s it. * * * A As to feelings, I don’t believe there was any anger between Lou Wallach on the one hand and Harold Friedman on the other until the day we filed this suit as to when Lou Wallach became aware of the fact that this thing wasn’t going right. I don’t know, but I know that when Mr. Friedman had fibt paid the Stock-hammer judgment and had not paid off the second within two weeks after March 9, then I personally began to look upon the whole transaction with some degree of circumspection. Q What’s that mean? A I began to have my doubts about the good intention of your client.”

There are two points raised on appeal which were preserved in defendants’ motion for new trial: (1) that the trial court erred, under the evidence, in granting equitable relief to plaintiffs; and (2) that the trial court erred in not finding that plaintiffs have an adequate and complete remedy at law.

The issue actually involved here is whether plaintiffs are entitled to be relieved of the legal effect of the earnest money contract and warranty deed on the ground they were induced to execute them because of false representations made by Harold Friedman.

We first recognize that when persons sign a contract and deed they are presumed to know their contents, to have accepted their terms, and that all prior negotiations are merged into the written instruments. However, when there is fraud in the inducement, we give relief and place the parties in status quo. The fraud may be proved by parol evidence. Judd v. Walker, 215 Mo. 312, 114 S.W. 979; Jackson v. Tibbling, Mo.Sup., 310 S.W.2d 909. It is also well settled that fraud may be inferred from facts and circumstances and need not be shown by direct evidence. Black v. Epstein, 221 Mo. 286, 120 S.W. 754; Castorina v. Herrmann, 340 Mo. 1026, 104 S.W.2d 297.

In State ex rel. Taylor v. Anderson et al., 363 Mo. 884, 893, 254 S.W.2d 609, at 615, appears a statement particularly appropriate here: “This being a suit in equity, we review the case de novo, weigh the evidence, and determine on the whole record what relief, if any, should be granted. Where, as here, however, there exists an irreconcilable conflict in the evidence on the essential fact issue involved, depending for determination on the credibility of witnesses, a situation prevails wherein the application of the rule of deference to the findings and conclusions of the trial chancellor is especially appropriate and necessary. [Citing cases.] The trial chancellor’s opportunity to observe the witnesses and to hear them testify affords him a basis for determining the credibility of testimony which we do not have. A review of the entire record in this casé convinces us we should defer to the trial court’s conclusion that the testimony of * * * [Louis Wal-lach and William J. Becker] was true.” In our opinion, the oral agreement testified to by Louis Wallach and William J. Becker is established by clear, cogent and convincing evidence.

This Court has recognized that in equity a state of mind may be misrepresented and that this constitutes a misrepresentation of fact upon which actionable fraud may be based giving rise to a constructive trust. Thieman v. Thieman, Mo.Sup., 218 S.W.2d 580; Musser v. General Realty Company, Mo.Sup., 313 S.W.2d 5. It is conceded that defendants refuse to comply with the oral agreement and to recognize plaintiffs’ interests therein. The evidence is sufficient to show that Harold Friedman did not intend to perform the agreement when he made it. We believe that the oral agreement by inducement procured the execution of the earnest money contract and the conveyance by deed, constituted a “misrepresentation of the fact of * * * [Friedman’s] intention at the time the agreement was made,” and justifies the imposition of a constructive trust as to Harold Friedman. Musser v. General Realty Co., supra, 313 S.W.2d 5, 10; Restatement, Restitution, § 166. We are of the opinion that, as to plaintiffs, Jack Joseph was a straw party in the transaction, “one of no substance, one in name only”. Houtz v. Hellman, 228 Mo. 655, 669, 128 S.W. 1001, 1005. In any event, under the evidence, he must be charged as a constructive trustee of the property because the execution of the deed was induced by the fraud of Harold Friedman. Restatement, Restitution, § 167; Clifford Banking Co. v. Donovan Commission Co., 195 Mo. 262, 289, 290, 94 S.W. 527, 536.

We hold that, under the clear, cogent and convincing evidence in this case, the defendants, if permitted to retain title to or interest in the real estate, would be unjustly enriched, and that a constructive trust should be imposed in plaintiffs’ favor. Restatement, Restitution, § 160; Musser v. General Realty Co., supra; Suhre v. Busch, 343 Mo. 679, 123 S.W.2d 8; Swon v. Huddleston, Mo.Sup., 282 S.W.2d 18, 25, 26, 55 A.L.R.2d 205.

There being fraud in this transaction giving rise to a constructive trust, plaintiffs may not be denied equitable relief on the basis that they have an adequate and complete remedy at law. “ * * * The right claimed and the relief sought is the subject of original equity jurisdiction, and the case as stated could be determined on its merits only in a court of equity. The court below was right in entertaining the case regardless of whether there was or was not a remedy at law. This being true, it is not necessary to either discuss or determine whether plaintiff did or did not have a remedy at law. * * *." Ellenburg v. Edward K. Love Realty Co., 332 Mo. 766, 774, 59 S.W.2d 625, 628; Stewart v. Caldwell, 54 Mo. 536, 539.

This Court, sitting in equity, de novo, must administer complete justice within the scope of the pleadings and evidence, even though plaintiffs have mistaken the specific relief to which they are entitled. The “doctrine is too well settled to admit of either discussion or dispute, that when a court of equity once acquires jurisdiction of a cause it will not relax its grasp upon the res until it shall have avoided a multiplicity of suits by doing full, adequate and complete justice between the parties.” Real Estate Sav. Inst. v. Collonious, 63 Mo. 290, 295. Plaintiffs are entitled to equitable relief. Sayer v. Devore, 99 Mo. 437, 477, 13 S.W. 201, 204.

The judgment of the trial court is for the right parties, and it is affirmed.

All of the Judges concur.