text:
    Fred WESTERHOLD, Jr., Appellant, v. Maurice CARROLL, Respondent.
    No. 52480.
    Supreme Court of Missouri, Division No. 2.
    Sept. 11, 1967.
    Motion for Rehearing and to Transfer to Court En Banc Denied Oct. 9, 1967.

      David Y. Campbell, St. Louis, for appellant.
    Keefe, Schlafly, Griesedieck & Ferrell, Robert F. Schlafly, St. Louis, for respondent.
   STOCKARD, Commissioner.

Plaintiff has appealed from the judgment of the Circuit Court of the City of St. Louis sustaining a motion to dismiss plaintiff’s petition on the ground that it fails to state a claim upon which relief may be granted.yL

We shall summarize portions of the petition, but shall quote other portions when necessary to set forth plaintiff’s claim.

On May 6, 1959, Westerhold Construction, Inc. (hereafter referred to as “contractor”) entered into a written agreement (hereafter referred to as the “construction contract”) with the Archdiocese of St. Louis of the Catholic Church (hereafter referred to as “owner”) whereby the contractor was to construct a church and rectory in accordance with drawings and specifications prepared .by defendant. On May 15, 1959, the contractor, as principal, and Maryland Casualty Company, as surety, executed a performance bond in the amount of $325,322.00, and a labor and material payment bond in the amount of $162,661.00, in favor of the owner, “as required by and pursuant to the terms of said written agreement,” and on May 6, 1959, as an inducement to said Maryland Casualty Company to execute said bond as surety thereon, by written agreement plaintiff agreed to indemnify and hold harmless said Maryland Casualty Company against any liability for damages, loss, cost, charges and expenses which it might sustain or incur by reason of having executed said bonds as surety. By the terms of the construction contract, the performance of the contractor was “under the supervision of and was subj ect to the inspection of defendant,” and payments by the owner to the contractor for work performed and materials furnished were required to be made “upon certification by defendant, as the architect, to said owner that payments requested by [defendant] from time to time during the progress of said job, for work stated to have been performed * * * and for materials furnished and delivered * * * had, in fact, been performed and delivered on the job, and that the amounts of such payments so requested, from time to time, correctly reflected the percentage of the work actually then performed and the percentage of materials then supplied and delivered on the job.” At various times prior to May 4, 1960, defendant certified to the owner that the contractor had completed work and had furnished materials “of the total value of $229,628.00,” and the owner, relying upon said certifications by defendant, had paid to the contractor the sum of $206,665.20, which represented 90% of the value of the work and material certified by defendant as having been performed and furnished. However, at the time of the said certificates made by defendant “the amount of work which actually had been performed by [the contractor] was substantially less than the value .thereof certified by defendant. as having been performed and furnished,” and the said certificates “were false and inaccurate” as to the total value of the work performed and materials furnished by the contractor by an amount in excess of $23,000. Subsequently the contractor defaulted under the construction contract, and the owner, pursuant to the terms of the construction contract, declared the contractor to be in default and called upon Maryland Casualty Company, as surety, to complete and carry out the terms of the construction contract. The surety did complete the contract and in doing so incurred expenses in excess of $93,234.23, and made demand upon plaintiff for payment pursuant to plaintiff’s obligations under • the previously described indemnification agreement, and plaintiff was required to expend and pay to the said surety the sum of $17,-500.00 in full settlement of his liability as indemnitor, and was caused to incur other expenses in the amount of $2,250.00. The loss, damages, and expenses incurred by plaintiff as indemnitof “were directly and proximately caused by the carelessness, negligence and wrongful acts of defendant in that defendant as architect * * * wrongfully and negligently failed to inspect and supervise the work performed and the materials furnished and delivered by said [contractor] * * *; and negligently, carelessly and wrongfully performed his duties as said architect, in falsely and incorrectly certifying, for payment by the [owner], to amounts and values of work performed and materials furnished and delivered by said [contractor], in an aggregate sum substantially in excess of the amount of work performed and the amount of materials actually furnished and delivered, so as to result in a substantial overpayment to said [contractor], thereby leaving an amount yet to be paid under [the construction contract] substantially smaller than the amount of work left to be performed and the amount of materials left to be supplied and delivered, in order to comply with the terms and provisions of said [construction contract].” Defendant, in his capacity as architect, knew or should have known, by the exercise of ordinary and reasonable care, that the amounts so certified by him for payment were substantially in excess of the value of the work actually performed and the materials actually supplied and delivered, and he “thereby acted carelessly and negligently in the performance of his duties as such architect.” Plaintiff prayed judgment against defendant in the amount of $20,000. ⅛

The motion to dismiss the petition alleged not only that the petition fails to state a claim upon which relief may be granted, but also that the action is barred by limitations. The trial court sustained the motion on the first ground only. In his brief to this court, respondent has not attempted to demonstrate that if the petition does state a claim the action is barred by limitations. We consider this latter issue as not before us.

The construction contract is not attached to and made a part of the petition. From the allegations in the petition we cannot determine whether defendant was a party to the construction contract in the sense that he signed it along with the contractor and owner, or whether there was a separate contract between the owner and defendant. In any event, defendant’s duties, or at least those duties material to the issue in this case, were set forth in the construction contract, and he purported to perform them pursuant thereto. No issue on this appeal is made concerning the source of his contractual obligations, or that they were other than alleged. Under the standard form of contract prepared by the American Institute of Architects the architect is designated as an arbitrator, see 12 Vanderbilt Law Rev. at p. 718 et seq., and in some contracts the architect’s certificate as to work performed is stated to be conclusive. See § 2 of Annotation, 54 A.L.R.2d 1227. However, the allegations in the petition do not demonstrate that either of these conditions exist, and for the purposes of this appeal we do not presume their existence or rule their effect if present.

By the terms of the construction .contract defendant was to inspect and supervise the performance of the work by the contractor, and payment to the contractor was authorized upon a certificate by defendant that the work actually had been done and the materials actually had been furnished by the contractor for which payment was sought. The construction contract also required that the contractor furnish a performance bond and a labor and material payment bond, and this was done by Maryland Casualty Company. While it is not specifically alleged that in issuing the bonds Maryland Casualty Company relied on the provisions of the construction contract providing for inspection and supervision of the work by defendant and also relied on the provisions for payment by the owner only upon certificates of defendant, it is a fair inference from the facts alleged that Maryland Casualty Company knew of those provisions and appreciated the fact that “to guarantee the performance of a contract where progress payments are adequately safeguarded is a less hazardous risk than to guarantee the performance of a contract where there are no safeguards.” Hall v. Union Indemnity Co., 8th Cir., 61 F.2d 85, 88. As expressly stated in that cgse, “such provisions in a contract are as much for the protection of the surety as of the owner.”

Plaintiff is not the surety, but is the indemnitor of the surety. Plaintiff does not specifically allege that the indemnity agreement provided that he would be subrogated to claims by the surety against the architect. However, he does allege that as indemnitor of the surety he was compelled to satisfy, at least in part, the liability of the surety. Generally speaking, an indemnitor of a surety compelled to satisfy the liability of a surety is subrogated to all rights to which the surety would have been subrogated. 83 C.J.S. Subrogation §62; 50 Am.Jur. Subrogation § 36. In compliance with our rule to construe the petition liberally and to accord to it every reasonable inference from the facts alleged, Myers v. City of Palmyra, Mo., 355 S.W.2d 17, 92 A.L.R.2d 791, we shall proceed on the theory that plaintiff is subrogated to the claims of the surety, and that he may maintain such action against the architect for the negligence alleged which could have been maintained by Maryland Casualty Company. In our following discussion we shall refer only to the right of the surety in this respect.

Plaintiff’s petition is based on negligence, and the immediate issue is (whether in the absence of privity of contract the facts stated in the petition imposed upon defendant a legal duty to the surety to exercise ordinary care in executing the certificates called for in the construction contract, so that he would not authorize payments to the contractor in excess of the amount provided for in the construction contract?

In the article by Bohlen, Fifty Years of Torts, 50 Harvard Law Review, 1225, at p. 1232, it was pointed out that the requirement of privity stems from an English case decided in 1842, Winterbottom v. Wright, 10 M. & W. 109, 152 Eng.Rep. 402, which announced that one who was not a party to a contract could not recover for its negligent performance, or that a defendant who had contracted with another owed no duty to a plaintiff who was not a party to the contract where there was no privity or direct transaction between them. This doctrine was illustrated by Roddy v. Missouri Pac. Ry. Co., 104 Mo. 234, 15 S.W. 1112, 12 L.R.A. 746, a suit for personal injuries sustained by an employee of a quarry owner as the result of the railroad’s negligence in the performance of a contract under which the railroad furnished the quarry owner cars for the transportation of stone. In the Roddy case this court said: “The right of a third party to maintain an action for injuries resulting from a breach of a contract between two contracting parties has been denied by the overwhelming weight of authority of the state and federal courts of this country and the courts of England.” This rule was based upon two principal grounds. The first was the apprehension that legal protection of this kind of an interest would lead to excessive and unlimited liability, and would “lead to end-I less complications in following out cause and effect. Roddy v. Missouri Pac. Ry. Co., supra. In Winterbottom v. Wright, this ground was stated this way: “If we were to hold that the plaintiff could sue in such a case, there is no point at which such actions would stop. The only safe rule is to confine the right to recover to those who enter into the contract: if we go one step beyond that, therq is no reason why we should not go fifty.” See also Kahl v. Love, 37 N.J.L. 5. The second ground advanced for the above result was that a contrary holding “would restrict and embarrass f the right to make contracts by burdening 1 them with obligations and liabilities to others which parties would not voluntarily assume.” Roddy v. Missouri Pac. Ry. Co., supra. In Marvin Safe Co. v. Ward, 46 N.J.L. 19, at p. 24, this second ground was stated as follows: “The object of the parties in inserting in their contract specific undertakings with respect to the work to be done is to create obligations and duties inter sese. These engagements and undertakings must necessarily be subject to modifications and waiver by the contracting parties. If third persons can acquire a right in the contract in the nature of a duty to have it performed as contracted for, the parties will be deprived of control over their own contract * * *

This rule requiring privity has not been followed blindly and without exception. As stated in Prosser on Torts 2nd ed. § 84, p. 498, when the application of the rule would produce a result contrary to the requirements of essential justice and sound public policy it has been whittled away by exceptions. In fact, throughout the years so many exceptions have been engrafted upon the rule that it has been said, perhaps too broadly, that the exceptions have “swallowed the rule.” LaPlant v. E. I. DuPont de Nemours & Co., Mo.App., 346 S.W.2d 231. See also the annotation at 74 A.L.R. 2d 1111, and Carter v. Yardley & Company, 319 Mass. 92, 64 N.E.2d 693, 164 A.L.R. 559. As early as 1931 Judge Cardozo stated that “The assault upon the citadel of privity is proceeding in these days apace.” Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441, 445, 74 A.L.R. 1139. In recent years the rule requiring privity has been further eroded and the exceptions have been extended into new fields and areas. No exhaustive listing of cases is necessary or appropriate; it is sufficient to note that in this state exceptions to ’the general rule have been written into the law allowing recovery for negligence in the absence of privity in cases, among others, where an act of negligence is imminently dangerous to the lives or safety of others or the thing dealt with is inherently dangerous (see the Missouri cases collected in the annotation, Product Causing Injury-Liability, 74 A.L.R.2d 1111, § 56, p. 1215); in cases of fraud or collusion (Gordon v. Livingston, 12 Mo.App. 267 (dictum)); in cases involving express warranty (Worley v. Proctor & Gamble Mfg. Co., 241 Mo.App. 1114, 253 S.W.2d 532) and implied warranty (Carter v. St. Louis Dairy Co., Mo.App., 139 S.W.2d 1025); and in cases involving error in the transmission of telegrams (Barnett v. Western Union Telegraph Co., Mo.App., 287 S.W. 1064). On the other hand, in those cases in which there exists the two reasons mentioned in Winterbottom v. Wright and restated in Roddy v. Missouri Pac. Ry. Co., for imposing the requirement of privity of contract, the courts of this state have not relaxed that requirement. See Zweigardt v. Birdseye, 57 Mo.App. 462; Gordon v. Livingston, supra; Schade v. Gehner, 133 Mo. 252, 34 S.W. 576; and the recent case of Anderson v. The Boone County Abstract Company, Mo., 418 S.W.2d 123.

We agree with the proposition that any extension of the limits of liability in this field should be done on a case-to-case basis, with a careful definition of the limits

of liability, depending upon the differing conditions and circumstances to be found in individual cases. Two New York cases, written by the same judge, illustrate this. In 1922 Judge Cardozo wrote the landmark case of Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 23 A.L.R. 1425, allowing a third party to. recover for harm negligently inflicted upon an intangible economic interest. The seller of beans had them weighed by the defendant, a public weigher, who issued a certificate as to their weight, knowing that the buyer would pay on the faith of the certificate. The weigher negligently overstated the weight to the purchaser’s damage. Recovery was allowed notwithstanding the lack of privity between the purchaser and the weigher. Judge Cardozo fixed liability upon the basis of a duty imposed by law arising out of the contractual relationship of the parties, indicating that diligence was owed not only to him who ordered, but also to him who relied; that the very “end and aim” of the weighing was to shape the conduct of another, and that under the circumstances “assumption of the task of weighing was the assumption of a duty to weigh carefully for the benefit of all whose conduct was to be governed^ — We note that the person /who would be injured by the weigher’s ' negligence was known — one person, the purchaser; that there was a certainty of injury if the weigher overstated the weight; and that the “end and aim” of the transaction was for the benefit of plaintiff, a party to the lawsuit. Nine years later the case of Ultramares Corporation v. Touche, 255 N.Y. 170, 174 N.E. 441, 74 A.L.R. 1139, came to be decided by the same judge. In that case the defendants were public accountants, employed by Fred Stern & Co. to make an audit. They negligently made and certified to a balance sheet which indicated that capital and surplus were intact, but this was in error because both capital and surplus had been wiped out and the corporation was insolvent. When Fred Stern & Co. asked plaintiff for a loan plaintiff demanded a certified balance sheet, and thereafter made the loan after relying on the erroneous balance sheet prepared by defendants. In plaintiff’s suit against the public accountants they raised the defense of lack of privity. Recognizing the necessity of different rules in different circumstances, and the undesirability of a rule which would expose accountants “to a liability in an indeterminate amount for an indeterminate time to an indeterminate class” for any thoughtless slip or blunder or inattention that might fairly be spoken of as negligence, ’ Judge Cardozo denied liability, and in doing so he pointed out that in Glanzer v. Shepard the service was rendered primarily for the information of a third person whose connection with the transaction was so close “as to approach that of privity, if not completely one with it”, and only incidentally for the benefit of the formal promisee, whereas in Ultramares Corporation v. Touche the service was primarily for the client who would use it as a convenient instrumentality in the development of his business.

^ We shall now examine the factual situation of this case to determine whether there exists the reasons for the application of the rule requiring privity of contract.

The entire arrangement, that is, the construction contract containing the provisions for payment to the contractor upon certificates from the architect, the architect’s contract with the owner, and the bonds required by the terms of the construction contract, was based upon several interrelated agreements designed to accomplish one objective, the construction of the church building and the rectory. While, strictly speaking, there may not have been privity of contract between' the architect and the surety, this was a transaction in which the relation was so close, to use Judge Cardozo’s words, “as to approach that of privity.” The requirement in the construction contract that payments by the owner were to be made to the contractor only upon certificates issued by the architect that the work had been performed and the materials had been furnished was “as much for the protection of the surety as the owner.” Hall v. Union Indemnity Co., 8 Cir., 61 F.2d 85, 88. See also Southern Real Estate & Financial Co. v. Bankers’ Surety Co., Mo., 184 S.W. 1030, 1034. While the surety did not rely on the certificates after they were made, in determining whether it would enter into the surety agreement, it unquestionably did rely on the contractual provision that money would not be paid to the contractor except for work performed and materials furnished in the amounts certified to by the architect, and it “had a right to rely upon the carrying out of the terms of the contract with respect to payments.” Hall v. Union Indemnity Co., supra. In this case, as in Glanzer v. Shepard, the person not in strict privity of contract who would be injured by defendant’s negligence was known, and the “end and aim” of the provision of the contract with respect to payments was for the benefit of the surety, as well as for the owner. Also, to forego the requirement of privity of contract could not lead to excessive and unlimited liability or lead to endless complications in following out cause and effect. Liability for negligently authorizing payment to the contractor for more work than was actually performed, or for more materials than actually furnished, could not exceed the value of the difference between that work actually performed and the materials actually furnished, and' that paid for based on the architect’s certificates, and that liability could not extend to anyone not in actual privity of contract except that of a surety and its subrogees. No exposure to liability to an unlimited number, or to an indeterminate class, of potential claimants is involved. (The potential liability is strictly limited as to the total amount and one known claimant which was not in privity.) The factual situation of this case does not expose the defendant, or architects generally, “to a liability in an indeterminate amount for an indeterminate time to an indeterminate class” for any thoughtless slip or blunder or inattention that might fairly be spoken of as negligence.

We consider that the above demonstrates that the first of the reasons advanced in Winterbottom v. Wright for the rule of privity (unlimited liability to an unlimited number of persons) is absent in the factual circumstances of this case. We are also of the opinion that the second reason (that the parties to contracts would be deprived of control over their contracts) does not exist under the pleaded facts. In the event the parties in privity mutually agree to change provisions of the contract between them inuring to the benefit of the surety, which changes result in increasing the risk of the surety, the surety is discharged from his liability under his surety agreement either wholly or to the extent of his increased risk. Southern Real Estate & Financial Co. v. Bankers’ Surety Co., Mo., 184 S.W. 1030; Hall v. Union Indemnity Co., supra. In that event, neither the surety nor its subrogees could suffer any loss.

The reasons for the rule or requirement of privity of contract are not applicable to the facts and circumstances of this case, and as a matter of logic we perceive no reason why in such a situation privity should be required unless it be that the rule is an ancient one. Mr. Chief Justice Fortescue is reported in 3 Holds-worth, A History of English Law, to have once said: “Sir, the law is as I say it is, and so it has been laid down ever since the law began; and we have several set forms which are held as law, and so held and used for good reason, though we cannot at present remember that reason.” We are not inclined to consider ourselves so restrained and bound. While we agree that ancient rules developed in the crucible of experience should not lightly be cast aside, we are also of the opinion that when the reason for a rule ceases to exist, or when the reason for a general rule does not apply to a particular factual situation, the court should not blindly follow such rule for no more justifiable reason than that it is ancient and traditional. See also Holmes, The Path of the Law, 10 Harvard Law Review, 457, 469.

For these reasons we consider the rule requiring privity of contract to be inapplicable, and that we should determine the sufficiency of the petition by the application of ordinary rules of negligence.

It is clear that an obligation may be assumed by contract out of which may arise a duty to others than parties to the contract. Helm v. Inter-Insurance Exchange for Automobile Club of Missouri, 354 Mo. 935, 192 S.W.2d 417, 167 A.L.R. 238; Lowery v. Kansas City, 337 Mo. 47, 85 S.W.2d 104, 110; 38 A.L.R. 403, 487-505. That is, a party by entering into a contract may place himself in such a relation toward third persons as to impose upon him an obligation to act in such a way that the third persons will not be damaged. Wolfmeyer v. Otis Elevator Co., Mo., 262 S.W.2d 18. In Lambert v. Jones, 339 Mo. 677, 98 S.W.2d 752, 758, it was stated that where one under contract with another assumes responsibility for property or instrumentalities and agrees under his contract to do certain things in connection therewith which, if left undone, would likely injure third persons, “there seems to be no good reason why [he] should not be held liable to third persons injured thereby for his failure to do that which he agreed to do, which he assumed responsibility for, and which was reasonably necessary to be done for their protection.” See also the Comment, Recovery for Negligent Interference with Prospective Economic Advantage, 12 Stanford Law Review 509. A basic principle is that “Most duties, imposed by the law of torts, arise out of circumstances and are based on 'foreseeability’ or reasonable anticipation that harm or injury is a likely result of acts or omissions.” Hull v. Gillioz, 344 Mo. 1227, 130 S.W.2d 623, 628.

Turning now to the facts of this case, as determined from the allegations of the petition, defendant had the contractual duty to certify, for purposes of payment by the owner to the contractor, the correct amount of work satisfactorily performed and the correct amount of materials furnished. The defendant negligently and incorrectly certified to the owner that more work had been performed, and that more materials had been delivered than in fact had been performed and delivered. As a result of this negligent certification, when the contractor later defaulted and the surety was required to complete the project, there was less money in the hands of the owner available to be used by the surety to pay for completing the project than there would have been if defendant had performed his contractual duties without negligence, and the surety had to make up the difference. In the exercise of ordinary care this result was easily foreseeable. In fact, the purpose of the inspection and certification by the architect was to prevent exactly what happened.

'⅞⅝-We have been referred to only one case, and we have found no other, which is closely parallel to the facts of this case. In State of Mississippi, for use of National Surety Corporation v. Malvaney, 221 Miss. 190, 72 So.2d 424, 43 A.L.R.2d 1212, the construction contract provided that a certain percentage of the contract price was to be retained until the work was satisfactorily completed. The architect authorized the payment of a portion of the funds to be retained without ascertaining that all bills for labor and materials had been paid. The contractor subsequently defaulted, and in completing the work the surety was required to expend the sum, and more, that had been improperly paid to the contractor from the funds which should have been retained until all bills had been paid. The court held that the architect knew, or should have known, when he authorized the release of the money that the surety would he deprived of the protection thereof in the event of default on the part of the contractor, that the duties of the architect provided for in the contract included the duty of not approving payments in excess of the authorized amount, and that “This duty *was owing both to the [owner] and the surety, for whose mutual benefit and protection the retainage funds were provided.” It was then stated: “A contractual relation between the architect and the surety was not requisite to the existence of this duty. It arose out of the general contractual arrangements which contained mutually interdependent rights and obligations.” The surety was permitted to recover against the architect on the basis of negligence in authorizing the payment to the contractor without determining that all labor and material bills had been paid.

Defendant admits that the Malvaney case is “relevant to the question” but he contends that it is inapplicable because (1) the plaintiff in that case “was the contracting surety who was known and intended to be a party to the transaction,” and (2) the court relied on a Mississippi statute which, in effect, made the surety a participant in the construction contract, and the architect’s actual or constructive knowledge of that law was held to impose a special duty on him to protect the position of the surety. We consider these to be no more than differences which do not distinguish that case from this. Plaintiff in this case stands in the position of the surety, and has no claim or right which could not be asserted t'by the surety. The surety was known, and the contract provisions pertaining to payments based on certificates of the architect were for the surety’s benefit. In the Malvaney case the owner was a public school, and the statute referred to required a performance bond by a surety. The requirements of the statute as to what the bond was to provide are not materially different from what plaintiff alleges the bond in this case provided. The defendant there was “charged with knowledge” of the requirements of the law, and for the purposes of this appeal we cannot assume that defendant did not know, or was not required to know, the terms of the contracts.

Defendant also asserts that his negligence was not the proximate cause of plaintiff’s loss, but that the default of the contractor was an intervening cause. The purpose of the inspection and the certificates of the architect was to protect the owner and the surety against payment of money to the contractor for work not performed and materials not delivered in the event of default. No loss to the owner or to the surety could ever result if there had been no default. The occurrence of the incident for which the contract provisions were designed to guard against should not be considered to be an intervening cause.

“The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to defendant’s conduct, and the policy of preventing future harm.” Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16, 65 A.L.R.2d 1358. Each and every one of the above elements are not absolutely necessary to authorize an action to be maintained, but we consider all to be satisfied in this case except we doubt that any “moral blame” can be leveled at defendant. When we consider that the other elements are present, and also consider that the usual reasons for limiting actions for the negligent performance of a contractual duty to those in privity of contract are absent, we conclude that the overall policy considerations weighs heavily in favor of the right of plaintiff to maintain this action under the factual circumstances alleged in the petition.

The judgment is reversed and the cause remanded.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM.

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

FINCH, P. J., and EAGER, J., concur.

DONNELLY, J., concurs in result.

      . In a subsequent appeal, 276 Mo. 183, 207 S.W. 506, certain unidentified “expressions” in the opinion of the cited case were “overruled,” but we conclude that the principle for which the ease is here cited and the principles for which it will later be cited were not disturbed.


source: Caselaw Access Project

author: HENLEY, Presiding Judge. SEILER, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. John STARKS, Defendant-Appellant.
    No. 52157.
    Supreme Court of Missouri, Division No. 1.
    Sept. 11, 1967.
    Motion for Rehearing and to Transfer to Court En Banc Denied Oct. 9, 1967.
    Norman H. Anderson, Atty. Gen., Jefferson City, Dennis J. Quillin, Sp. Asst. Atty. Gen., Clayton, Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.
    Stanley E. Goldstein, St. Louis, for appellant.
   HENLEY, Presiding Judge.

Defendant was charged by information with unlawful possession of a stimulant drug, amphetamine hydrochloride. Section 195.240 (all references to statutes are to RSMo 1959, V.A.M.S., unless otherwise indicated). A jury was waived; he was tried before the court and found guilty; his motion for new trial was overruled and he was sentenced to'imprisonment for five years. Section 195.270. He appeals. The case comes to the writer on reassignment.

The information, alleging prior felony-convictions, charged that defendant “ * * on October IS, 1965, at the City of St. Louis aforesaid, did unlawfully and feloni-ously have in his possession a drug which is designated by the Missouri State Division of Health to be a stimulant, to-wit: an amount of 0.098 grams of Amphetamine Hydrochloride in violation of Chapter 195, Section 195.240 Revised Statutes of the State of Missouri, 1959.”

The evidence showed that on the above date, around 11 p. m., two St. Louis police officers were cruising west in the 4400 block of Delmar when they saw defendant and a companion, walking east on Delmar, turn and walk on to the parking lot of a gas station. Defendant had his hands behind his back and the officers observed an object drop from behind him and fall between his legs. It was a flat packet approximately an inch or so square, silver or aluminum foil in color, light in weight and it glinted and fluttered as it fell. The officers testified defendant denied having dropped anything or any knowledge of the packet. The packet was found on the ground behind defendant, close to his right foot. The packet contained a “white powderish substance.” Defendant’s counsel stipulated that the contents of the packet were checked by the laboratory technician and that “this package contained amphetamine”, .098 grams.

There was no proof by anyone as to what amphetamine hydrochloride is.

In State v. Bridges, Mo., 398 S.W.2d 1, the charge against defendant specified “amphetamine hydrochloride” and the proof showed the substance in question was amphetamine hydrochloride. The state contended that the indictment charged distribution of amphetamine itself, because amphetamine hydrochloride is not a derivative but a compound or mixture containing the proscribed drug amphetamine. But there was no proof to support that contention. The conviction was reversed and the cause remanded to give the state an opportunity to produce such proof as it could that “ * * * the compound in question is not a derivative of amphetamine but rather a compound or mixture containing the proscribed drug amphetamine itself.” See also: State v. Ransom, Mo., 412 S.W.2d 125.

In this case the information charges defendant with possession of “amphetamine hydrochloride”, but the proof shows the packet contained amphetamine; hence, there is no question involved here, as there was in Bridges, supra, requiring proof that the substance in the packet was not a derívate of amphetamine but was a compound containing amphetamine. The proof it that it was amphetamine.

Defendant contends the information is fatally defective and charges no offense, because it charges possession of amphetamine hydrochloride, a drug not designated a stimulant or barbiturate drug by the Division of Health on the list filed with the Secretary of State pursuant to § 195.230. On the date of the alleged offense amphetamine hydrochloride was not on the list of proscribed drugs, but the statute itself proscribed possession of amphetamine. The state contends in this case, as it did in Bridges and Ransom, supra, that the information is not defective, because “ * * * the drug amphetamine hydrochloride is a compound or mixture containing the proscribed drug amphetamine itself.” There is no evidence in the record to support this contention.

The drug bearing the name amphetamine hydrochloride had not at the time of the alleged offense been designated by the Division of Health to be a stimulant; therefore, it was not a proscribed drug. The information charges defendant with possession of a drug not then proscribed by law; therefore, the information is defective, states no offense, and the judgment must be reversed.

Should the case be remanded to permit the state to amend the information to allege the offense it attempted to charge and the proof supported? We think so.

Criminal Rule 24.02, V.A.M.R., supplanting §§ 545.290 and 545.300, RSMo 1959, V.A.M.S., provides that an information may be amended “ * * * 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 Rule is as broad as §§ 545.290 and 545.300, which permit amendments in matters of form or substance at any time before trial. Section 545.300, first appearing in Laws of 1925, page 194 (§ 3564, RSMo 1929), provides that “ * * * no such amendment shall be allowed as would operate to charge an offense different from that charged or attempted to be charged in the original information.” (Italics added.)

An amendment of this information by striking the word “hydrochloride” would not result in a charge of an “additional or different offense.” Such an amendment would result only in charging an offense which the original information attempted to charge, that is, possession of a stimulant drug.

In State ex rel. Downs v. Kimberlin, 364 Mo. 215, 260 S.W.2d 552, 556 [5], decided after the effective date of Criminal Rule 24.02, the court, en banc, held that the state could file a substitute information for an indictment the trial court had quashed as not stating facts sufficient to charge a crime. In so holding the court referred to § 545.300 and concluded that the trial court had held that the indictment was “ * * * ‘insufficient as to form or substance’ * * *that this ruling of the trial court thereby made applicable the further provision of the statute that “ * * * ‘an information charging the same offense charged or attempted to be charged in such indictment may be substituted therefor at any time before the jury is sworn.’ ” It has been said that the right to amend an information is broader than the right to amend an indictment, 42 C.J.S. Indictment and Information § 232, page 1243 and that the right to amend an information is as broad as the right to amend pleadings in civil cases, except as limited by statute, § 545.290. State v. Hall, 312 Mo. 425, 279 S.W. 102, 108 [10]; State v. Cain, Mo.App., 31 S.W.2d 559, 561 [2],

In State v. Lane, Mo., 371 S.W.2d 261, at 1. c. 264, the court quoted with approval the following pertinent language from State v. Broeder, 90 Mo.App. 156, 167-168: “‘And it seems to us that when the right is given to amend, as to both form and substance, as it is in section 2481 [RSMo 1899], supra, [now section 545.290] the right can not be restricted to such defects as would be cured by the statute of j eofails, after verdict, but exists even if the information failed to state any offense, if it can be clearly gathered from what is stated in the information that the prosecuting attorney intended to charge a particular offense or the violation of a specific statute.’ ”

There can be no doubt that this information clearly shows that the state intended to charge the particular offense of possession of a stimulant drug; the information says so. There can be no doubt that the state intended to charge the violation of a specific statute; the information says specifically that possession of the drug was “ * * * in violation of * * * Section 195.240 * * There is not the least doubt as to the offense the state intended and attempted to charge; defendant stipulated that the drug he possessed was amphetamine; amphetamine is a stimulant drug. Section 195.220(2). Under these circumstances, to discharge him before an amended information could be filed because this information was insufficient to charge the offense would be a perversion of our Criminal Rules. The state undoubtedly could have amended the information to charge possession of amphetamine before this trial began. Substantial rights of defendant could not be prejudiced by permitting the state to do upon remand what it could have done before.

The judgment is reversed and the cause remanded.

HOLMAN, J., concurs.

SEILER, J., dissents in separate dissenting opinion filed.

STORCKMAN, J., not sitting when cause was submitted.

Dissenting Opinion

SEILER, Judge.

I agree with the majority opinion that the information states no offense. However, I do not believe it is subject to amendment and respectfully dissent from that portion of the majority opinion which holds that it is. Since the statute of limitations has not yet expired and there is reasonable ground to believe the defendant could be convicted of an offense under Section 195.240, I would reverse the judgment and recommit the defendant under rule 27.23. This would involve the filing of a new information. However, I would not distort the meaning of rule 24.02 as permitting an amendment where the origi-inal information fails to charge an offense.

Rule 24.02 provides an information may be amended “ * * * if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.” We are concerned here with a statutory crime which makes unlawful the possession of a drug designated by the division of health to be a stimulant. The drug with which defendant was charged as possessing was not so designated. Defendant’s defense, which the majority opinion upholds, was that it was not an offense for him to have possession of the drug charged, because it was not on the list. This will no longer be a defense under the amended information permitted by the majority opinion. According to State v. Taylor, (Mo.Sup.) 375 S.W.2d 58, the test of whether there is prejudice to the defendant from an amendment is whether the defense under the charge as originally made would be equally applicable after the amendment. Here it would not. As originally made the charge could be defeated by proving the drug named (amphetamine hydrochloride) was not on the list. This defense will not be available against the information as amended, because amphetamine is on the list.

Also, it has been held many times that “a different and distinct offense may not be charged by way of an amended information”, State v. Thompson, (Mo.Sup.) 392 S.W.2d 617, 620; State v. Colbart, (Mo.Sup.) 411 S.W.2d 92, 94. Amending the present information by substituting amphetamine for amphetamine hydrochloride will be a change from no offense to an offense, something quite different and distinct from that originally charged, both in name and effect. This is also seen when we observe that the present information would not be a bar to a subsequent prosecution. If the present conviction were to be affirmed (or if, for example, there had been a guilty plea with no appeal involved), defendant who, on the formal record in this case, has been found guilty of possessing amphetamine hydrochloride and sentenced to five years’ imprisonment, could nevertheless at any time up to October 15, 1968, be charged with unlawful possession of amphetamine on the occasion in question and, assuming the same proof were again made by the state, could be convicted of such charge and sentenced thereon. The present information and verdict would be no bar to such prosecution because the present information does not charge the same offense — it charges possession of amphetamine hydrochloride, not amphetamine.

Although the majority opinion refers to rule 24.02 as supplanting Section 545.300, RSMo 1959, V.A.M.S., it in effect reads rule 24.02 as being as broad as Section 545.-300, which permitted amendments which did not charge an offense different from that “charged or attempted to be charged” (emphasis supplied) in the original information. The opinion justifies the amendment on the ground it would be only what the original information “attempted to charge”. However, by its terms, rule 24.02 is not as broad as Section 545.300. Rule 24.02 is more restrictive, as it permits amendments “if no additional or different offense is charged”. If there is a conflict or difference in scope between the two, as it seems there is because of the difference in wording, then rule 24.02, being a rule of practice and procedure, would prevail, under Section 5, Article V, 1945 constitution, over the previously enacted statute, State ex rel. Bone v. Adams, (banc) 365 Mo. 1015, 291 S.W.2d 74, 77; State v. Collins, (Mo.Sup.) 383 S.W.2d 747, 749-750.

The majority opinion cites State ex rel. Downs v. Kimberlin, banc, 364 Mo. 215, 260 S.W.2d 552, decided July 13, 1953, which was after the effective date of rule 24.02, January 1, 1953. But I respectfully submit that the Downs case is not authority for the proposition that rule 24.02 must be read as though it includes the language of Section 545.300 permitting an amendment charging the offense “attempted to be charged”. The Downs case involved an indictment which was quashed September 2, 1952. A substitute information was offered by the prosecutor a few days later, relying on Section 545.300 (rule 24.02 was not then in force). The trial court refused to permit the substitution and the prosecutor sought mandamus from this court. Examination of the briefs shows relator relied on Section 545.300. No mention was made in the briefs or in the opinion of rule 24.02. The substitute information which this court ordered the respondent judge to accept would relate back to its filing date, September 6, 1952, which was prior to the effective date of rule 24.02. It does not appear the decision is authority for the proposition that rule 24.02 is as broad as Section 545.300.

If rule 24.02 were intended to mean the same as Section 545.300 it would appear that the same language would have been used. As it is, it would seem that the narrower language of rule 24.02 indicates a desire to see that defendants have the full benefit of Section 18(a), Art. I, 1945 constitution, which states the defendant has' the right “to demand the nature and cause of the accusation”. It has been held that criminal statutes are to be construed strictly, liberally in favor of the defendant and strictly against the state, and that this applies to the charge as well as to the proof, State v. Dougherty, 358 Mo. 734, 216 S.W. 2d 467, 471. Thus it does not appear we should construe rule 24.02 as permitting . amendments which go beyond its terms, which we do when, as the majority opinion rules, amendments can be made to charge what has been “attempted to be charged”.

Even if rule 24.02 is as broad as the majority opinion holds, I do not agree with the majority opinion that there is not the least doubt as to the offense the state intended and attempted to charge. The fact is the statute does not prohibit possession of stimulant drugs in general — it prohibits only the possession of those which have been listed by the division of health. At the time in question the list consisted of amphetamine, amphetamine sulfate, dextro-amphetamine sulfate, mephentermine, methamphetamine hydrochloride and nico-tinyl-amphetamine. The state knew through its laboratory technician that the drug which the defendant had in his possession was amphetamine. If it had intended to charge him with possession of this, all it had to do was to file an information so charging. As it was, the state selected a drug which was not on the list. How does such an information advise defendant that he is really being charged with a drug which is on the list and, if so, which drug?

      . State v. Coffins, Mo., 383 S.W.2d 747, 749 [3-4].

      . State v. Zingher, 302 Mo. 650, 259 S.W. 451, information held not to state an offense, court not authorized to remand for new trial on proper information where statute of limitations had run.

      . State v. Hall, 312 Mo. 425, 279 S.W. 102, cited by the majority opinion, says the same thing.

      .In State v. Lane, (Mo.Sup.) 371 S.W.2d 261, despite the language quoted in the majority opinion, the court, at 371 S.W. 2d l.c. 264, was careful to see (1) that there was no change in the offense charged in the original and amended information and (2) that the appellant made no showing he was prejudiced by the filing of the amended information, before it held the court properly permitted its filing.

      . The writer has been unable to find “amphetamine hydrochloride” listed in the medical dictionaries, standard pharmaceutical reference works or texts or Webster’s Third New International Dictionary.


author: HENLEY, Judge.

text:
    In the Matter of the Incorporation of the VILLAGE OF LONE JACK, Missouri. T. E. RAGSDALE et al., Respondents, v. Charles E. CURRY et al., Respondents, Richard V. Brown et al., Appellants.
    No. 52707.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1967.
    Rehearing Denied Oct. 9, 1967.

      Rufus Burrus, Independence, for respondents.
    Milton B. Edmonson, Greenwood, Irving Achtenberg, Kansas City,- Achtenberg, Sandler & Balkin, Kansas City, of counsel, for appellants.
   HENLEY, Judge.

This action, originating in the county court of Jackson county, involves the incorporation of the village of Lone Jack, Missouri. The county court, over objections of persons hereinafter mentioned, approved a petition for incorporation, declared the village a body corporate and politic, and appointed Richard V. Brown, et al., members of its first board of trustees. T. E. Ragsdale, et al., hereinafter referred to as “objectors” to incorporation, residents of the area sought to be incorporated, appealed from that order to the circuit court of Jackson county. The circuit court affirmed the order of the county court, but, on after trial motion of objectors, set aside its order of affirmance and granted a new trial. Richard V. Brown, et al., hereinafter referred to as “proponents” of incorporation, appealed from the order granting a new trial to the Kansas City court of appeals. That court reversed and remanded with directions to reinstate the judgment affirming the order of the county court. On application of objectors we ordered the case transferred to this court and it will be determined here “the same as on original appeal”. Civil Rule 84.05 (h), V.A.M.R.; Constitution of Missouri, Article V, § 10, V.A.M.S. The case was argued here, but additional briefs have not been filed. We affirm, with directions.

We are met at the outset with an incomplete record, incomplete in that it does not contain the testimony of witnesses heard by the county court. We understand from the arguments that this testimony was recorded by a recording machine but that it was not preserved and could not be supplied to the circuit court after the'case reached that court for review.

The record of the proceedings in the county court certified to the circuit court on appeal consisted of (1) a verified petition of 134 taxable inhabitants praying for incorporation of an area of 3840 acres as the village of Lone Jack (attached as exhibits were a plat of the area and a verified census listing all inhabitants by name showing that all who signed the petition were residents thereof); (2) objections to incorporation signed by twenty-five taxable inhabitants of the area; (3) the order of the county court declaring the area incorporated as a village and appointing a board of trustees; (4) objectors’ “Application For And Notice Of Appeal to the Circuit Court * * and (5) various other documents we need not describe. The certificate of the county court recites that the record transmitted to the circuit court contained all papers on file with the county court together with its findings, decisions and orders in the matter, but that no transcript of the evidence heard by that court was included, because no party requested that a record be made of the proceedings. For whatever it may be worth, we note at this point that objectors’ notice of appeal requested that in certifying the matter to the circuit court the county clerk include, among other parts of the record, “ * * * a transcript of the evidence * * *

The petition for incorporation alleged, inter alia, that 272 inhabitants resided within the area of which 167 were taxable inhabitants. The census supports this allegation. The objections to incorporation alleged, inter alia, that the area actually comprising the unincorporated village known as Lone Jack was 160 acres, but that the balance of the 3840 acres sought to be incorporated was “ * * * farm and agricultural lands.” The plat shows that the 3840 acre area (six square miles) is somewhat irregular in shape. It is three miles long, north to south, at its longest point, and two and one-half miles wide, east to west, at its widest point. It lies both north and south of U.S. Highway SO, in the southeast corner of Jackson county. The plat indicates that it has only six roads or streets, two churches and one school.

Witnesses for both sides testified before the county court, but, as indicated, their testimony was not transcribed and made a part of the record certified to the circuit court for review. The certification of the county court attests to this fact and counsel agreed in their arguments here that testimony was heard, but not transcribed.

On this bare record the circuit court entered its judgment in favor of proponents, finding that the order of the county court * * * was based upon a reasonable exercise of discretion, upon competent and substantial evidence, and was not against the overwhelming weight of the evidence * *

It was also on this bare record that the court later sustained objectors’ motion for new trial and set aside its judgment, finding that the county court had exceeded its jurisdiction by including in the village boundaries 3680 acres of farm, pasture and agricultural lands not devoted to village purposes, for which reason the incorporation was void.

Proponents-appellants, conceding that the record does not contain all evidence heard by the county court, contend that the circuit court erred in granting a new trial, because there is substantial evidence in the county court record upon which to find that that court acted within its jurisdiction in incorporating the village. Objectors-respondents contend, contra, that although the record does not contain all of the evidence, the court did not err in granting a new trial, because the petition and other parts of the record show, and the court may take judicial notice of the fact, that approximately 3680 acres of the land in the area sought to be incorporated is devoted to farm, pasture and agricultural uses, and therefore the county court was without jurisdiction to incorporate.

Asserting that the scope of judicial review is limited to determining whether the order of the county court is supported by competent and substantial evidence, proponents further contend (1) that it was the responsibility of objectors to preserve the evidence upon which the county court based its findings and order; and (2) since the testimony heard by the county court is not a part of the record, that court’s “ * * * findings will be presumed to be correct and the reviewing court must hold that its order was supported by competent and substantial evidence.”

Section 49.230 (all references to statutes and rules are to RSMo 1959, V.A.M.S., and Rules of Civil Procedure of this Court, V.A.M.R.) provides that appeals from order of county courts of a quasi-judicial nature shall be heard by the circuit court in the manner provided by § 536.140, a part of chapter 536, our Administrative Procedure and Review Act. Section 49.-225 provides that the county court or any party in proceedings before that court may require that the evidence be reported by a stenographer and when transcribed shall become a part of the record. Section 49.230 further provides that the county court “ * * * shall certify to the circuit court all documents and papers on file * * * together with a transcript of the evidence, * * * findings and order, which become the record of the cause.” Section 536.130 and Civil Rule 100.06 provide that the record for review in cases of this nature shall consist of one of the following: (1) such parts thereof as the parties by stipulation may agree upon; (2) an agreed statement of the case; or “(3) A complete transcript of the entire record, proceedings and evidence * * *. ”

This record does not meet the requirements of the statute or rule; its deficiency or shortcoming will not permit that review required by § 536.140. The question of whether land is used only for farming or agricultural purposes and not devoted to or constituting a part of the community is inherent in a proceeding before a county court to incorporate into a new village acreage of this size occupied by such few inhabitants. Neither the circuit court, nor any other court, can properly review and determine whether the order of the county court is supported by competent and substantial evidence on that question in the absence of all the evidence.

Proponents cast the blame for failure to preserve this testimony on objectors, saying that, as appellants in the circuit court it was objectors’ responsibility to see to it that all the evidence was preserved for review. In making this assertion proponents rely on the case and statute cited in footnote 2. Section 49.225 provides that any party -whose interests are being determined may require that the evidence be transcribed and made a part of the record. This statute makes the transcript as available to proponents as it does to objectors; and, now with proponents in the position of appellants, it might be said that the blame and responsibility proponents would cast on objectors has shifted to proponents as appellants. Mastin v. Ireland, supra, 1. c. 902 [4], It serves no purpose to cast blame. Parties desiring that their interests be reviewed in accordance with § 536.140 will see to it that the full record necessary for proper review is certified to the initial reviewing court; and where, as here, the testimony of witnesses has been heard but not transcribed and preserved so that it may be made a part of the record on appeal their case should be remanded forthwith by the initial reviewing court for a rehearing of that evidence and its preservation for review.

The circuit court certainly had the authority to remand the case to the county court for that purpose and should have done so, State ex rel. State Highway Commission v. Weinstein, Mo., 322 S.W.2d 778, 787 [16], rather than rule and then set aside its ruling on a record inadequate for proper review.

Proponents contend the findings of the county court are presumed to be correct and the reviewing court must hold that its order was supported by competent and substantial evidence. In the case of In Re Proposed Incorporation of the Village of Pleasant Valley, 272 S.W.2d 8, cited by proponents, the Kansas City Court of Appeals held that doubt should be resolved in favor of the order of the county court on the question of whether the petition for incorporation was signed by the required number of taxable inhabitants, although the record did not contain evidence heard on that question. We agree with that opinion on the question decided. But on the question of whether the county court may have exceeded its jurisdiction by incorporating a large area of farm land not devoted to village purposes and not reasonably required to be incorporated within the village we are not bound by the county court’s order, State on Information of Eagleton v. Champ, Mo., 393 S.W.2d 516, 526 [5], and decline to indulge the presumption urged by proponents.

Objectors contended in the county court, in the circuit court and contend on appeal that the area involved is devoted to farm and agricultural uses. If this is true then State on Information of Eagleton v. Champ, supra, relied on by both sides, may well control what the county court may or may not do. As was stated in argument, there is no evidence in the record from which the character of the use of this land may be determined; that is, whether or not it is being used as farm or agricultural lands. We may not take judicial notice that this is farm land, as objectors would have us do. But we may take notice from the official state highway map of the location in Jackson county of the community long known as “Lonejack” and that it is at least eight miles from the nearest town or city. We may not determine the character of the land use from the bare fact that the population density is roughly forty-five persons per square mile. But these facts do lend some credence to the assertion that this sparsely settled large acreage is farm land not devoted to village purposes and not reasonably required to be incorporated within the community. Without the testimony of the witnesses heard by the county court we cannot determine whether the county court has exceeded its jurisdiction.

For the reasons stated, the order of the circuit court is affirmed only insofar as it grants objectors a new trial, and the cause is remanded with directions that it be remanded to the county court for further proceedings in accordance with this opinion.

All concur.

      . Proponents cite in support of this assertion: Wood v. Wagner Electric Corp., 355 Mo. 670, 197 S.W.2d 647, 649; Kansas City v. Rooney, 363 Mo. 902, 254 S.W.2d 626, 627; State ex rel. Horn v. Randall, Mo.App., 275 S.W.2d 758; Missouri Constitution, V.A.M.S., Article V, § 22; Sections 49.230 and 536.140, V.A.M.S.

      . Proponents cite in support of this contention: Mastin v. Ireland, 320 Mo. 617, 8 S.W.2d 900; Section 49.225, RSMo 1959, V.A.M.S.

      . Proponents cite in support of this conten» tion: In Re Proposed Incorporation of Village of Pleasant Valley, Mo.App., 272 S.W.2d 8; Gorman v. Cox, Mo., 190 S.W.2d 936; Section 80.020, RSMo 1959, V.A.M.S.; 6 C.J.S. Appeal and Error § 1564, p. 1292.


author: DONNELLY, Judge. SEILER, Judge. STORCKMAN, Judge.

text:
    Dean LUPKEY, Plaintiff-Appellant, v. William H. WELDON, News Tribune Company, a Corporation, and Jefferson Television Company, a Corporation, Defendants-Respondents.
    No. 51811.
    Supreme Court of Missouri, En Banc.
    Sept. 11, 1967.
    Rehearing Denied Oct. 9, 1967.

      Robert Kingsland, Cullen Coil, Jefferson City, for appellant, Carson, Inglish, Monaco & Coil, Jefferson City, of counsel.
    Lon Hocker, St. Louis, for respondents, Hocker, Goodwin & MacGreevy, St. Louis, of counsel.
   DONNELLY, Judge.

This is a libel action. Plaintiff had a jury verdict of $1,000 actual damages and $50,000 punitive damages. The trial court granted defendants a new trial on the sole ground that the verdict was “against the weight of the evidence.” Plaintiff appealed. 0

Plaintiff concedes that a new trial may be granted in a libel action on the ground that the verdict was against the weight of the evidence. 53 C.J.S. Libel and Slander § 234, p. 359; Johnson v. Scribner, 6 Conn. 185. A trial court may grant a new trial in a libel action on a recognized legal ground. Cook v. Globe Printing Co., 227 Mo. 471, 127 S.W. 332. A recognized legal ground is that the verdict is against the weight of the evidence. Section 510.330 RSMo 1959, V.A.M.S.; Supreme Court Rule 78.01, V.A.M.R.

Plaintiff contends there was no substantial evidence to have supported a verdict for defendants and, therefore, that the trial court erred in granting a new trial on the ground the verdict was against the weight of the evidence. He asserts the editorial complained of is libelous per se; that, therefore, the only defense is truth; that there was no evidence to support said defense; and, therefore, that there was no evidence to weigh.

Plaintiff relies upon a rule of law stated in Castorina v. Herrmann, 340 Mo. 1026, 1032, 104 S.W.2d 297, 300, as follows: “ * * * To grant a new trial, on the ground that the finding was against the weight of the evidence, would be arbitrary if there was no evidence to weigh. Therefore, on appeal from such an order based on that ground, the appellate court will determine whether or not there was sufficient substantial evidence to sustain a verdict for the party to whom the new trial was granted. * *

The question for determination is whether this rule of law is available to plaintiff in a libel action when there is a verdict for plaintiff and defendants are granted a new trial on the ground the verdict is against the weight of the evidence. We are of the opinion it is not.

In interpreting the Castorina statement, we must view it as but an application of the rule of law that we will overturn an order granting a new trial on the ground the verdict was against the weight of the evidence only in cases where no verdict in favor of the party at whose instance the new trial was granted “could ever be permitted to stand.” Haven v. Missouri Railroad Company, 155 Mo. 216, 230, 55 S.W. 1035, 1039.

The essential question is whether, in a given case, the appellate court must declare as a matter of law that the trial court should have directed a verdict against the party at whose instance the new trial was granted. Or, to state it in a different way, the question is whether, in this case, we must declare that the trial court should have directed a verdict for plaintiff. We cannot do this in a libel action.

Article I, Section 8 of the Missouri Constitution, V.A.M.S., provides in part that “in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.” This provision has been interpreted to mean that the court may not direct a verdict for a plaintiff in a libel case. In this respect libel cases differ from other cases. Heller v. Pulitzer Pub. Co., 153 Mo. 205, 212, 213, 214, 54 S.W. 457, 458, 459; Diener v. Star-Chronical Pub. Co., 230 Mo. 613, 132 S.W. 1143, 33 L.R.A.,N.S., 216. In Ukman v. Daily Record Co., 189 Mo. 378, 390, 88 S.W. 60, 64, the Court stated:

“Libel cases are sui generis, in that the gist of Fox’s Libel Act, imbedded in our Constitution, section 14, art. 2, Bill of Rights, leaves to the jury the issue of libel or no libel; and from this certain peculiar results logically flow and are recognized by the courts, to wit, that a defendant in a libel suit has two strings to his bow, the one the jury and the other the court, whereas the plaintiff has but one, and, if he succeed, must win a verdict from the jury. Stated in a different way, if the defendant can get either the court or the jury to be in his favor, he succeeds, while the prosecutor or plaintiff cannot succeed unless he gets both the court and the jury to decide for him. From this condition of things it further follows that the court may direct a non-suit, but cannot coerce a verdict for plaintiff. * * *.”

This Court has consistently declined to weigh evidence on appeal when the trial court granted a new trial on the ground the jury verdict is against the weight of the evidence. See Clark v. Quality Dairy Co., Mo.Sup., 400 S.W.2d 78, for a review of our judicial history in this regard. As stated in the Clark case, weighing evidence involves a qualitative analysis as well as a quantitative analysis. We have long recognized the superior ability of a trial court to perform this function, and we will not substitute our judgment for that of the trial court when it grants a new trial on the ground the jury verdict is against the weight of the evidence.

We cannot hold as a matter of law that a jury verdict for defendants could not have been permitted to stand. We will not overturn the order of the trial court granting a new trial.

Plaintiff asserts that when the trial court submitted the facts to the jury, and denied defendants’ contention that defendants should prevail as a matter of law, the trial court divested itself of the power to grant a new trial on the ground the jury verdict was against the weight of the evidence. We do not agree. State ex rel. State Highway Commission v. Belvidere Development Company, Mo.Sup., 315 S.W. 2d 781, 785.

The order granting a new trial is affirmed.

HOLMAN, C. J., and HENLEY, FINCH and EAGER, JJ., concur.

SEILER, J., concurs in result in separate concurring opinion filed.

STORCKMAN, J., dissents in dissenting opinion filed.

Concurring Opinion

SEILER, Judge.

I concur in the result reached in the opinion written by Judge Donnelly, but would rest the decision on a somewhat different basis. I do not believe that we review a libel case where a new trial has been granted on the ground the verdict is against the weight of the evidence any differently than we do any other damage suit, nor do I believe our review turns on the fact the trial court cannot direct a verdict for a plaintiff in a libel suit. It seems to me that the language in the Castorina opinion (in Castorina the plaintiff had been granted a new trial), relied upon by plaintiff and set out in Judge Donnelly’s opinion, must be taken as referring to what the appellate court does when considering the situation where plaintiff has been granted a new trial on the weight of the evidence, which is not this case. The Castorina language relied upon by plaintiff does not apply where defendant gets the new trial on the weight of the evidence (and I do not think this is limited to libel cases). This is the flaw in plaintiff’s argument that since there was no substantial evidence to have .supported a verdict for defendants, the trial court erred in granting defendants a new trial on the ground the verdict was against the weight of the evidence.

When a defendant is granted a new trial on such ground in a case where plaintiff’s claim is denied by the answer and there is oral evidence on the part of plaintiff on which the jury must pass as to credibility and where the plaintiff must face the risk of non-persuasion of the jury (as here where plaintiff put on six members of the city council, the mayor, the city clerk, four witnesses as to good reputation, the deposition of the lawyer advising plaintiff at the time, and plaintiff himself and wife), the test quoted from Castorina does not fit, because a verdict for a defendant can stand even without any substantial evidence in favor of the defendant, Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558; Holtzman v. Holtzman (Mo.App.) 278 S.W.2d 1; Rodgers v. Seidlitz Paint and Varnish Co. (Mo.Sup.) 404 S.W.2d 191; Fitch v. Star-Times Pub. Co. (Mo.Sup.) 263 S.W.2d 32.

We have no way of knowing why the trial court concluded the verdict for plaintiff was against the weight of the evidence. It may have been for some matter known to the court in witnessing and presiding over the trial and which does not and cannot appear in the record. His action in awarding defendants one new trial on the ground stated does not have to be supported by substantial evidence in the record on which the jury could have returned a verdict for the defendants. In effect, under the Missouri practice, when it comes to granting a new trial for the defendant on such ground, the trial court is not limited to a situation where, upon looking back, it can be said there was substantial evidence in the record to have supported a verdict for defendant originally, any more than a jury, under Cluck v. Abe, supra, is limited to returning a verdict for the defendant only where there is substantial evidence in favor of the defendant.

Dissenting Opinion

STORCKMAN, Judge.

The majority opinion seems to be dominated by the mistaken concept that constitutional provisions pertaining to libel actions limit an appellate court’s review of rulings of the trial court. The libel act constitutes the jury the adjudicator of the law and the facts in a libel action; consequently, the trial court (as well as the appellate court) cannot direct a verdict in favor of the plaintiff.

Logically it might be contended that once the jury has exercised its prerogative to determine the issue of libel vel non the court could not disturb the finding, but the case law seems to be that except for directing a verdict in favor of the plaintiff the trial court can proceed as in other civil cases including granting a new trial on the ground the verdict is against the weight of the evidence. Cook v. Globe Printing Company, 227 Mo. 471, 127 S.W. 332, 352-353 [20]; Duncan v. Williams, 107 Mo.App. 539, 81 S.W. 1175, 1176; McCloskey v. Pulitzer Publishing Co., 163 Mo. 22, 63 S.W. 99, 101 [5]. Quite illogically, it seems to me, the majority opinion holds that, while the trial court has this latitude, the appellate court is more restricted in its review of what the trial court has done than in other civil cases. I submit the constitutional provisions do not so limit the appellate courts, and there is no basis in law or logic for the restrictions and departure from the usual appellate practice.

The principal fault I find with the majority opinion is its holding that a grant of a new trial by the trial court on the ground that the verdict is against the weight of the evidence cannot be disturbed by an appellate court unless it appears from the record that “no verdict in favor of the party at whose instance the new trial was granted ‘could ever be permitted to stand.’ Haven v. Missouri Railroad Company, 155 Mo. 216, 230, 55 S.W. 1035, 1039.” As I view it, this is a holding that the appellate court can give no relief in such a situation unless the party seeking to have the verdict reinstated is entitled to a directed verdict as a matter of law. This holding is designed to avoid the operation of the rule stated in Castorina v. Herrmann, 340 Mo. 1026, 1032, 104 S.W.2d 297, 300, that the grant of a new trial on the' ground the verdict was against the weight of the evidence would be arbitrary if there was no evidence to weigh and in such cases the appellate court will determine whether or not there was substantial evidence to sustain a verdict for the party to whom the new trial was granted. In so holding, the majority opinion fails to accord to the Haven decision its full import and, by relying on a statement out of context, gratuitously unsettles well-established and sound principles of law. A careful examination of the Haven case discloses that it does not limit the Castorina decision, but, on the contrary, is in accord with it.

In the Haven case the plaintiff sustained serious injuries while alighting from defendant’s cable car. The jury found in her favor, but only awarded her nominal damages of one cent. The trial court granted plaintiff a new trial “for the reason that the jury, having found that the plaintiff was entitled to recover, disregarded the court’s instructions as to the measure of damages, and have shrunk from deciding the issues submitted to them.” From the order granting the plaintiff a new trial the defendant appealed. That is the converse of this case. The plaintiff Haven and a bystander outside the cable car testified the car started suddenly while she was in the act of alighting, but plaintiff’s testimony was weakened considerably on cross-examination. On behalf of the defendant, several passengers testified positively that the plaintiff, without signalling, undertook to alight while the car was in motion. The supreme court construed the then new statutory amendments authorizing an appeal from an order granting a new trial and held the scope of review was the same as had previously applied to appeals from final judgments. It held that in spite of the apparent preponderence of'the evidence in favor of the defendant, the testimony of the plaintiff “in a very lame way, and her witness Siegel, in a positive way” constituted “some substantial testimony which will take the case to the jury * * * as distinguished from a mere shadow or scintilla of testimony which would not entitle her to go to the jury * * 55 S.W. 1039. At page 1040 of 55 S.W., the court stated it would not interfere in case of the grant of a new trial on the ground the verdict was against the weight of the evidence “unless the action of the trial court was purely arbitrary.” On the same page is the court’s statement of the two applicable rules of law: “Regarded as a verdict in effect for the defendant, the trial court had a right to grant the plaintiff a new trial, because that court believed the verdict was against the weight of the evidence (which was one of the grounds for new trial assigned), and this court, although disagreeing with that opinion, has no right to interfere. Neither can this he regarded as a case where, conceding all the plaintiff says and shows, a verdict for the plaintiff could not stand; for, as herein shown, if the plaintiff’s testimony and that of her witness Siegel be true, that constitutes some testimony upon which the verdict could rest, and, as this court will not weigh conflicting testimony, we could not set aside such a verdict, if the trial court refused to do so.” Italics added.

Because of the construction of the new statutory provisions and the review of numerous decisions, the Haven opinion is father tedious reading. Any doubt as to its meaning, however, is resolved in Fitzjohn v. St. Louis Transit Co., 183 Mo. 74, 81 S.W. 907, decided four years after Haven and which involved almost identical facts. Both opinions were written by Judge Marshall. The Fitzjohn opinion restates the import of the Haven decision as follows (81 S.W. at page 908): “The law applicable to cases of this character is now well settled. The trial court has a discretion to grant one new trial, and this court will not interfere with its exercise of that discretion, however much it may disagree with that court upon such a ruling, where there is any substantial evidence to support it, unless the case is such that no verdict in favor of the party to whom the new trial is granted could ever he allowed to stand, [citing cases.] The defendant admits the existence of the general rule, but claims that the trial court acted arbitrarily in this instance, and hence this court should review his ruling, because in such instance the trial judge did not exercise a judicial discretion. This contention finds apparent, but not real, support in Haven v. [Missouri] Railroad [Company,] 155 Mo., loc. cit. 232, 55 S.W. 1035, where it was said: ‘The judgment of the circuit court is affirmed on the sole ground that in granting the plaintiff a new trial that court exercised a discretion, which is vested in it, and which this court will not review except when arbitrarily exercised, which cannot fairly be said to be true in this case.’ What was there meant by the discretion being arbitrarily exercised was that there must be no substantial evidence to base such a ruling upon, or that the case was such that no verdict in favor of the party to whom the new trial was granted could ever be allowed to stand, or, otherwise stated, that there was no legal basis for such a ruling. The reason underlying the rule has been heretofore pointed out to be that this court will not weigh conflicting evidence in actions at law, and that the trial judge has a discretion to grant one new trial in any case legally made out, and this court will not interfere except in the cases stated.” Italics added.

Thus we see that the Haven case does not limit the scope of appellate review to situations where a verdict could never be permitted to stand in favor of the party to whom the new trial was granted. The decision recognizes as well the right of the appellate court to determine if there was substantial evidence on which to base the ruling; that is what the majority opinion overlooks and ignores. Recent cases holding that the reviewing court will endeavor to ascertain if there is sufficient substantial evidence to sustain a verdict for the party to whom the new trial was granted are Evans v. Landolt, Mo., 389 S.W.2d 15, 16 [2], State ex rel. State Highway Commission v. Belvidere Development Co., Mo., 315 S.W.2d 781, 785 [8], and Williams v. Cass, Mo.App., 372 S.W. 2d 156, 158 [3], and cases therein cited. Among the cases in which the evidence was held not to be substantial and sufficient are Graves v. Atchison, T. & S. F. Ry. Co., 360 Mo. 167, 227 S.W.2d 660, 662 [4], Rose v. Thompson, 346 Mo. 395, 141 S.W. 2d 824, 830 [8], and Goodwin v. Winston, 241 Mo.App. 357, 230 S.W.2d 793, 798 [7]. In these cases the order granting the new trial was reversed and the cause was remanded with directions to reinstate the verdict and judgment.

The plaintiff on this appeal urges the proposition that there was no substantial evidence to weigh because his case was made by introducing the libelous statement, the publication of which was admitted, that by granting a new trial on the specified ground of weight of the evidence all other grounds involving oral evidence such as excessiveness of damages were denied, and that there was no substantial evidence to support the pleaded defense that the publication was true. I express no opinion on the plaintiff’s contention. My objection to the majority opinion is that it does not examine the transcript to discover if there is any substantial evidence for the trial court to weigh and in effect denies the existence of the rule which authorizes the appellate court to make such inquiry.

Furthermore, the defendant contends on this appeal that the action of the trial court in ordering a new trial should be sustained because the publication was not libelous as a matter of law. The plaintiff replies, inter alia, that the point is not preserved for review because no such ground was specified in the motion for new trial. If the question is properly before us and is meritorious, the determination of the issue would dispose of the appeal because the plaintiff, not having been libeled, would not be entitled to recover in any event. Again I express no opinion on the issue, but it does appear that the question should be examined and decided. The court made such a determination in Coots v. Payton, 365 Mo. 180, 280 S.W.2d 47, and remanded the cause for a trial of the counts found to be libelous. Also in Cook v. Globe Printing Co., 227 Mo. 471, 127 S.W. 332, 348 [10], this court reviewed the publication and held it was libelous without a colloquium both under the statute and at common law as has been done in numerous other libel actions.

If as the plaintiff contends there was no substantial evidence on any material issue for the trial court to weigh, an appellate court can make that determination and review any documentary evidence on an equal footing with the trial court. The deference usually accorded the determination of a factual issue by a trial court, because of its better position to judge the credibility of witnesses appearing before it, is not applicable to cases submitted on documentary proof, such as exhibits and depositions. Giokaris v. Kincaid, Mo., 331 S.W.2d 633, 635 [1], 86 A.L.R.2d 925. This is in accord with the general rule that the force and effect of written documents introduced in evidence is a question for the court and not for the jury at least in the first instance and that in construing such documents the rule of deference to the trial court’s finding does not apply on appeal. Gruenewaelder v. Wintermann, Mo., 360 S.W.2d 678, 686 [1]; State ex rel. Bowdon v. Allen, 337 Mo. 260, 85 S.W. 2d 63, 67 [4]; Foristel v. Security National Bank, Savings & Trust Co., 320 Mo. 436, 7 S.W.2d 997, 998 [2]; Roach-Manigan Paving Co. v. Southwestern Surety Ins. Co., Mo., 238 S.W. 119, 121 [3].

I agree with the holding of the majority opinion that a verdict may not be directed for the plaintiff in an action for libel because of the constitutional provision which vests the jury with the authority to determine the law and the facts. Art. 1, § 8, of the Constitution. For a reason the same in principle, the court is seldom justified in directing a verdict in favor of a party having the burden of proof where the case depends on oral testimony as in a damage suit because it is the function of the jury to determine the credibility of all oral evidence and the jury may find against a party on his own uncontradicted and unim-peached oral evidence. Robbins v. Robbins, Mo., 328 S.W.2d 552, 555 [1]; Beezley v. Spiva, Mo., 313 S.W.2d 691, 695 [6,7]; Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558, 559 [3], There are many cases besides libel actions where the courts must defer to the jury and cannot direct a verdict against the defendant, but in case of a plaintiff’s verdict the trial court can grant the defendant a new trial on the ground the verdict is against the weight of the evidence, and on appeal the plaintiff is entitled to urge and the appellate court to hold that the order granting the new trial was arbitrary, an abuse of discretion and without legal authority. The law is no more compelling in a libel action.

So far, we have undertaken to demonstrate that the majority opinion is fallacious in holding that cases such as Haven and Castorina should be construed to limit the scope of review by appellate courts so that orders granting new trials on the ground the verdict was against the weight of the evidence could be disturbed only when no verdict in favor of the party at whose instance the new trial is granted could ever be permitted to stand. Verdicts may-be directed on numerous grounds other than failure of proof such as the bar of the statute of limitations or, in an action for libel, by a holding as a matter of law that the publication is not libelous. An appellate review limited solely to the right to direct a verdict is not the proper standard. The decisions relied on in the opinion as well as others establish that the scope of appellate review extends also to an examination of the transcript to determine if there is substantial evidence to weigh on any relevant and material issue. We have also sought to show that this court should determine whether the publication is libelous if that question is before the court.

I further disagree with the apparent holding of the majority opinion that different standards apply in libel actions to the granting of new trials on the ground in question as well as the review of such orders because the libel law prevents the court from directing a verdict in favor of the plaintiff. I agree with this statement of Judge Seiler’s opinion concurring in the result: “I do not believe that we review a libel case where a new trial has been granted on the ground the verdict is against the weight of the evidence any differently than we do any other damage suit, nor do I believe our review turns on the fact the trial court cannot direct a verdict for a plaintiff in a libel suit.”

The majority opinion begins with the statement that a trial court “may grant a new trial in a libel action on a recognized legal ground” citing Cook v. Globe Printing Company and follows with the assertion that granting a new trial because the verdict is against the weight of the evidence is a recognized legal ground. With all of this I agree as a general proposition. And from it I would assume that the scope of appellate review is the same as in any other civil action consistent with the rule of libel law, applicable alike to trial and appellate courts, that the court cannot direct a verdict in favor of the plaintiff. But somewhere along the line the scope of review is narrowed and limited by the majority opinion solely on the authority of cases other than libel actions, principally the Haven case which was a damage suit.

It should be noted that this apparently will be the first reported case dealing with the review of an order granting a new trial in a libel action on the ground the verdict was against the weight of the evidence. The majority opinion states that the plaintiff “concedes” that a new trial may be granted in a libel action on the ground that the verdict was against the weight of the evidence, citing 53 C.J.S. Libel and Slander § 234, p. 359, and Johnson v. Scribner, 6 Conn. 185. A concession may be helpful in limiting the scope of review in a particular case, but it should not be the basis of establishing a general rule for all cases. The C.J.S. text refers to “defamation” rather than libel and the only two decisions in support of it are slander cases. One is Johnson v. Scribner, 6 Conn. 185, a slander case in which the words alleged to have been spoken by the defendant charged the plaintiff with being a murderer. The verdict was for the defendant and the plaintiff was granted a new trial on the ground that the verdict was against the weight of the evidence. The order granting a new trial was affirmed. The other is Cheadle v. Buell, 6 Ohio 67, also a slander case charging the unlawful taking of money, which resulted in a verdict for the plaintiff and the defendant was granted a new trial on the ground the verdict was against the weight of the evidence. These decisions did not indicate that the rules applied on review were different than in an ordinary civil action.

It should also be kept in mind that § 8 of Art. 1 of our Constitution provides that in suits “for libel or slander the truth thereof may be given in evidence”, but the provision that “the jury, under the direction of the court, shall determine the law and the facts” applies only to libel cases. Italics in quotation added. In Clark v. Hatfield, 88 Ill. 440, 441, the general rule of that jurisdiction was stated to be that in penal actions, and in actions for a libel or defamation, and in other actions vindictive in their nature, a new trial will not be granted merely because the verdict is against the weight of the evidence. Neither of the cases cited in support of the C.J.S. article furnish any support for the rule of limited review announced for the first time in the majority opinion and such rule is contrary to the established rule in other civil cases. Cook v. Globe Printing Company (127 S.W. at page 352) and all other Missouri libel actions with which I am familiar lend support to the view that the grant of new trials in libel actions and the review of such orders should be the same as in the usual civil action. The majority opinion not only provides an improper rule for libel actions but also casts doubt upon the nature of review permitted in all civil actions where a new trial is granted on the ground that the verdict is against the weight of the evidence. This results from the construction placed on the Haven and Castorina cases.

The majority opinion avoids examining the oral testimony to determine if it is substantial and on material issues. The concurring opinion apparently finds there was substantial and material evidence and therefore is able to concur in the result. I express no opinion as to whether there is substantial and material evidence and whether the publication was libelous since the majority opinion does not go into those questions. I disagree with the majority opinion because it does not decide the issues presented and in failing to do so distorts sound and well-established rules of law.

Therefore, I respectfully dissent.