author: HENLEY, Judge.

text:
    ST. LOUIS COUNTY, Missouri, Elmer E. Smith and Frank J. Antonio, and Berkeley School District, Respondents (Plaintiffs), v. STATE TAX COMMISSION of Missouri, John A. Williams, Howard L. Love and J. Ralph Hutchison, and Ozark Air Lines, Inc., Trans World Airlines, Inc., American Airlines, Inc., Central Air Lines, Inc., Braniff Airways, Inc., Eastern Air Lines, Inc., and Delta Air Lines, Inc., Appellants (Defendants), and City of St. Louis, Appellant (Intervenor).
    Nos. 51775, 51787-51792.
    Supreme Court of Missouri, En Banc.
    Sept. 12, 1966.
    Rehearing Denied Oct. 10, 1966.

      Joseph B. Moore, St. Louis County Counselor, Thomas W. Wehrle, Deputy County Counselor, Patrick Fiandaca, Asst. County Counselor, Clayton, for respondents, St. Louis County, Missouri, Elmer E. Smith, Frank J. Antonio.
    Howard Elliott, Edward D. Weakley, St. Louis, for respondent, Berkeley School District.

      Paul L. Bradshaw, Neale, Newman, Bradshaw, Freeman & Neale, Springfield, Dick H. Woods, John K. Bestor, George E. Gibson, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, Thomas F. McGuire, City Counselor, St. Louis, Arnold Bran-nock, State Tax Commission of Missouri, Jefferson City, for appellants.
    Norman H. Anderson, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, amicus curiae, for defendants-appellants.
    George S. Hecker, Shepley, Kroeger, Fisse & Shepley, St. Louis, for Remmert-Werner, Inc., amicus curiae.
    Kenneth S. F. Teasdale, Armstrong, Teasdale, Roos, Kramer & Vaughan, St. Louis, for Interstate Airmotive, Inc., ami-cus curiae.
   HENLEY, Judge.

This opinion determines appeals in seven cases in each of which the defendants and the City of St. Louis, as intervenor, appeal from a judgment of the Circuit Court of the County of St. Louis setting aside findings and an order of the State Tax Commission pertaining to the assessment for tax purposes of a leasehold interest of a defendant airline in real estate owned by the City.

The plaintiffs-respondents will - be referred to as follows: St. Louis County, Missouri, the County; Frank J. Antonio, the assessor of St. Louis County, as the Assessor; Berkeley School District, the School District. The defendants-appellants will be referred to as follows: State Tax Commission of Missouri, John A. Williams, Howard L. Love and J. Ralph Hutch-ison, as the Commission; Ozark Air Lines, Inc., Trans World Airlines, Inc., American Air Lines, Inc., Central Air Lines, Inc., Braniff Airways, Inc., Eastern Air Lines, Inc., and Delta Air Lines, Inc., collectively as the Airlines. The inter-venor-appellant, City of St. Louis, will be referred to as the City.

The real estate involved is Lambert-St. Louis Municipal Airport, hereinafter referred to as the Airport, located in St. Louis County and owned and' operated by the City. On January 1, 1963, each of the Airlines held a leasehold interest in parts of the Airport. The assessments involved are those made by the Assessor for the tax year 1963 on the leasehold interest of each Airline.

Each Airline and the City appealed the respective assessments to the St. Louis County Board of Equalization which, after a hearing, denied the appeals. Thereafter, each Airline and the City filed a joint appeal to the Commission where the seven appeals were consolidated for hearing. After hearing evidence, the Commission notified the parties by letter that it had found that the leasehold interests had no value as of January 1, 1963, and that the assessment should be “no value or assessment of zero.” Within a few days after this letter the Commission made and entered findings of fact, conclusions of law and decision in each of the seven cases. Thereafter, the County, the School District and other plaintiffs filed petitions for review. The cases were submitted to the trial court on these petitions, the consolidated record made before the Commission, briefs and oral arguments of counsel. Thereafter, the trial court made and entered its findings and judgment in each case wherein it reversed and set aside the findings and decision of the Commission, and sustained the valuation and assessment of the Assessor and County Board of Equalization. After an unavailing motion to amend the judgment or, in the alternative, for a new trial, a notice of appeal to this court was filed in each case by the Commission, the airline involved and the City. On motion of all appellants, we ordered the cases consolidated for briefing, argument and hearing before the court en banc. Common questions of fact and law are involved. One opinion will suffice.

This court has jurisdiction for the reason, among others, that the County of St. Louis is a party in each of the appeals. Article V, § 3, Constitution of Missouri, V.A.M.S.

The findings, conclusions of law and decision of the Commission were, in summary: (1) that the formula or method used by the Assessor in assessing the value of the leasehold interests was improper and erroneous and resulted in assessing the value of the fee to the Airlines; (2) that as of January 1, 1963, the contractual rental was substantially in excess of the fair market value rental for comparable space in the St. Louis metropolitan area and at other comparable airports; (3) that the greater weight of the credible evidence was that as of the assessment date the contractual rental was substantially in excess of the fair market value rental; (4) that the leasehold interests of the Airlines on the assessment date were of no value, that the fair and proper value for tax assessment purposes was “zero or no value,” and that the assessments by the Assessor were unfair, unlawful, improper and arbitrary; (5) that a lessee’s interest in a leasehold is real property within the meaning of the law and as such must be assessed at its true value in money, or at such percentage thereof as may be fixed by law, if such leasehold interest in fact has value; (6) that, therefore, the assessments of the Assessor should be, and are, reversed and set aside. We do not reach or rule the interesting question posed in (5) above. The trial court, in a twenty-seven page memorandum setting out its findings and judgment, reversed and set aside the decision of the Commission (except that finding and conclusion of the Commission stated in (5) immediately above) and sustained the assessed valuation of the Assessor and County Board of Equalization. We reverse the judgment of the trial court and remand the cases.

The leases from the City to each of the Airlines conveyed space to be occupied by each, either exclusively or in common with one another, within and adjacent to certain buildings at the Airport, primarily the Terminal building and cargo buildings and, in the case of TWA, a hangar building. All leases expired July 31, 1965, and none contained a right of renewal beyond that date. Ozark also had two other leases for space at the Airport not related to space leased by any of the other six. One of these was for office space in what is called the “old” Terminal building; the other for space in a metal hangar building with adjoining office space, and a concrete ramp area. The latter leases provided for their termination (and vacation of those premises by Ozark) upon completion by the City of new facilities to be occupied by Ozark in the fall of 1964. All of the lease agreements limited the use which the Airlines could make of the premises solely to the conduct of air transportation business and functions incident thereto, and precluded the lessees from assigning the lease (other than to a successor) or subletting the premises (other than to an auxiliary business) without written permission of the lessor. In addition to the space leased in the buildings above mentioned, the Airlines had license to use in common with all other aircraft the landing strips, runways, taxi-ways, runway lights, public address and P.A.X. telephone systems and similar facilities for which they paid “activity or landing fees” as distinguished from rent. In addition to the rentals, each Airline also paid its own electricity, janitor service and similar expenses.

At the request of the Assessor the Airlines furnished him with the square footage of space leased from the City, the annual rents paid therefor, and the expiration date of their leases. The rentals paid for the year 1962 were as follows:

Ozark $ 97,483.86

TWA 191,670.50

American 80,691.00

Central 10,657.00

Braniff 23,690.01

Eastern 43,334.25

Delta 40,246.69

Thereafter the Assessor notified the Airlines that the assessed valuation of their respective leasehold interests in the Airport for tax purposes for the year 1963 was as follows:

Ozark $ 259,980.00

TWA 506,650.00

American 209,830.00

Central 23,300.00

Braniff 63,170.00

Eastern 109,860.00

Delta 48,420.00

The formula used by the Assessor to determine the valuation to be assessed to each leasehold was set out in a letter from the Assessor, as follows:

“The average monthly rents paid by the lessee multiplied by a factor of ninety-six (96), in our opinion, determines the value of the leased property. This value is then reduced to one-third (½), which in effect becomes the assessed value.
“In the determination of these leased property values, 1962 rents were used * *
“In the determination of the leased property values of the airlines, the cost of landing fees, public address system, P.A.X. telephone system, fuel oil, and electricity are excluded.”

In other words, in assessing the leaseholds at one-third of what he determined to be true value, the Assessor took the average monthly rent paid by each Airline, multiplied that by the factor of ninety-six and divided the product by three. The factor of ninety-six selected by the Assessor represents a remaining lease term of eight years. As of the assessment date the remaining life of the lease terms of the Airlines was two years and seven months with the exception of the two additional leases of Ozark which expired in less than two years.

Appellants contend in points two and three of their brief that the court erred: (1) in holding that the findings and decision of the Commission were not supported by competent and substantial evidence upon the whole record, and (2) in reviewing the case as if it were a trial de novo and in substituting its findings and conclusions for those of the Commission.

The scope of review by the trial court, and by this court, of the findings and decision of the State Tax Commission where, as here, a hearing was required by law and was held, extends to a determination of whether the findings and decision are supported by competent and substantial evidence upon the whole record. Article V, § 22, Constitution of Missouri; § 536.140, paragraph 2, subparagraph (3), RSMo 1959, V.A.M.S.; Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649 [1]. In Wood, supra, l. c. 649 [3], this court, en banc, said: “This does not mean that the reviewing court may substitute its own judgment on the evi dence for that of the administrative tribunal. But it does authorize it to decide whether such tribunal could have reasonably made its findings, and reached its result, upon consideration of all the evidence before it; and to set aside decisions clearly contrary to the overwhelming weight of the evidence. Of course, the reviewing court should adhere to the rule of deference to findings, involving credibility of witnesses, made by those before whom the witnesses gave oral testimony.” Neither the trial court nor this court may substitute its discretion for discretion vested in the Commission, and may not set aside findings and decisions of the Commission unless such are unsupported by competent and substantial evidence upon the whole record, or for other reasons set out in § 536.140. State ex. rel. Kahler v. State Tax Commission, Mo., 393 S.W.2d 460, 464 [4]; Stein v. State Tax Commission, Mo., 379 S.W.2d 495, 498 [3]; Peck’s Products Company v. Bannister, Mo., 362 S.W.2d 596, 599 [2]; Drey v. State Tax Commission, Mo., 345 S.W.2d 228, 234 [2]. The scope of review has been referred to as limited. State ex rel. Horn et al., v. Randall, et al., Mo.App., 275 S.W.2d 758, 761.

In determining the questions before us we must follow the above principles and heed “the principle that the record be viewed in the light most favorable to the finding [and decision] of the Commission, and consider the favorable inferences which the Commission had the right to draw from the evidence before it, * * State ex rel. Bond v. Simmons, et al., Mo.App., 299 S.W.2d 540, 545 [5]; Gaddy v. State Board of Registration for Healing Arts, Mo.App., 397 S.W.2d 347, 350 [2].

Mr. Frank J. Antonio, the Assessor, testified that the first leasehold interests his office had assessed for tax purposes were those involving lessees at the Airport; that based on his experience, and knowledge as to how long each of the lessees had been tenants of the Airport, he considered that the value of a leasehold property should be determined by multiplying the average annual rental paid by eight years without regard to the term or actual life remaining in the lease, because eight years had been determined by him to be the life expectancy of a lease; that eight years should be used as the multiplier on commercial properties regardless of whether the tenancy was month to month or for a three-year term. Upon inquiry as to whether the use of eight as the multiplier would in fact produce the value of the interest of the owner of the fee, he replied that “ordinarily” this “rule of thumb method” would produce that value.

Mr. James N. Foster, Supervisor of the commercial department of the Assessor’s office, corroborated the testimony of the Assessor, but went into more detail as to the method used to assess the leasehold interests. He further testified that he did not know of any other leasehold interests in commercial property in St. Louis County assessed by use of the same formula as that used in assessing the value of leasehold interests at the Airport.

Mr. William J. Randall of St. Louis testified before the Commission on behalf of the Airlines. We will not attempt to go into the details of his qualifications as an appraiser or into the details of his very extensive testimony pertaining to the value of the leasehold interests and how he reached values of zero. It is sufficient to say that he apparently was well qualified and was recognized as an expert in the field of real estate appraisal, having been employed in more than thirty states as an appraiser, and as a consultant and appraiser for airports in Detroit, Canton, Ohio, Tulsa, Minneapolis, and Louisville, as well as St. Louis. He taught an advanced course in real estate appraisal at Washington University and participated in preparation of the real estate assessment manual for St. Louis County and the Commission’s manual. He had been in charge of a reassessment program of the County and St. Charles County for the purpose of equalization of valuations, and had served as senior appraiser for, or had assisted in, reassessment programs of Allentown, Pennsylvania; Bradford, Connecticut; Ithaca and Rochester, New York; and Memphis, Tennessee. He had done real estate appraisal work for both the County and the State Highway Commission in connection with condemnation actions.

In preparation for his determination of the value of the leasehold interests, Mr. Randall: (1) examined the leases and inspected the space occupied exclusively and nonexclusively by the Airlines; (2) classified the various types of space occupied under the leases, that is, Terminal building space, and office, cargo, hangar and shop space and compared the rental paid for office, cargo or warehouse, and shop space with the fair market rental value of like or similar space in St. Louis County and the City of St. Louis; (3) made an investigation and study of the space, facilities, condition, and rentals paid by the Airlines at ten other comparable airports and compared them with the space, facilities and condition of the property leased at the Airport and with the rentals paid by the Airlines to the City. Of the ten airports chosen for this study and comparison, five had enplanements (i. e., passengers boarding an airplane for purposes of travel) next greater than those at Lambert-St. Louis and five had the next fewer enplanements, according to the latest official publication of the Federal Aviation Agency.

Based on the above information acquired over a period of several months and his experience, he expressed an opinion as to the fair market rental value of the space occupied by the Airlines at the Airport, breaking those values down for types of space, i. e., Terminal building, office, hangar, cargo, etc., exclusive and nonexclusive. We will not further encumber this opinion with the details as to those -values, except to say that he ascribed a fair market rental value of $4.10 per square foot per year to both exclusive and nonexclusive space in the Terminal building. The rental paid by the Airlines for such space was $4.75 per square foot per year.

Mr. Randall defined the value of a leasehold interest in real estate as the present worth of the rental saving where the contractual rent to be paid is less than the fair market value of the use and occupancy of the leased premises at the time of appraisal; that is, where the fair market rental is higher than the contractual rental there is a rental saving, the value of which is determined by capitalizing the net annual rental saving over the remaining term of the lease. He further testified that an important factor in determining the value of a leasehold interest is the remaining life of the lease; that this factor, as well as restrictions and limitations on the lessee, affect the marketability of a lease; that a long term lease is relatively marketable both from the standpoint of the lessee and the lessor because it has the characteristics of an annuity; that a lease with a short remaining life is not likely to be marketable and its market value, if any, from a practical standpoint, is less than what rental savings would show it to be worth.

His opinion was that the leasehold interests of the Airlines had no value as of January 1, 1963, because the known contractual rental was greater than the fair market rental. The following table shows the known contractual rental, reflects in summary all the factors considered by him in arriving at the fair market rental of all the several types or units of space occupied by each of the Airlines, and expresses his opinion as to the value of each leasehold interest.

Airline Total Actual (contractual) rental Total ascribed (fair market) rental Value of leasehold interest

Ozark $ 97,483.86 $ 91,898.00 -0-

TWA 191,670.50 185,128.00 -0-

American 80,691.00 77,645.00 -0-

Central 10,657.00 9,221.00 -0-

Braniff 23,690.01 20,447.00 -0-

Eastern 43,334.25 41,613.00 -0-

Delta 40,246.69 34,391.00 -0-

Mr. Theodore Martin, apparently a well-qualified real estate appraiser with several years’ experience, testified on behalf of the plaintiffs-respondents that the method of determining the value of leasehold interests used by Mr. Randall properly should not be used in determining the value of leasehold interests at an airport, primarily because there is not a free and open market for rental space at airports. He was of the opinion that the leasehold interest of each of the Airlines had a fair market rental value of $7.00 per square foot per year. To determine the present value of the leasehold interests he would multiply the square feet leased by the Airline at the Terminal building by $2.25 (the difference between the fair rental of $7.00 and the contractual rental of $4.75) and that product by ten. The factor of ten was selected by him on the premise that, considering past history, the Airlines would likely remain as tenants of the airport for another fifteen years. He said that the multiplier of ten would produce the present discounted value of a fifteen-year term. He arrived at the annual rental of $7.00 per square foot in the Terminal building by taking the depreciated cost of the building and adding to that the value of 300 acres (the Airport comprises 1,700 acres) to obtain a present value of $10,500,000 for the whole facility; he divided this by the 150,000 square feet in the Terminal building to arrive at a $70.00 per square foot value for the building. Assuming that the City was entitled to an 8% return on this $70.00 per square foot investment, he produced the figure of $5.60 per square foot to which he added $1.40 for depreciation for the total of $7.00 per square foot per year. His opinion was that the value of the leasehold interest of each of the Airlines was equal to or in excess of the assessment made by the Assessor.

Mr. Victor Hallauer, a real estate appraiser with about thirty years’ experience, also testified on behalf of plaintiffs-respondents. He used the same method of determining the fair rental value as that used by Mr. Martin, but arrived at a fair rental value of $6.79 per square foot per year. He used the same multiplier of ten .based on a remaining term of fifteen years. His opinion was that the value of the leasehold interests was equal to or in excess of their assessed values.

We hold that the findings and decision of the Commission as to the values of the leasehold interests of the Airlines for tax assessment purposes as of January 1, 1963, are supported by competent and substantial evidence upon the whole record.

Regardless of the method used by the Assessor for determining the fair market value rental of the leasehold interests, whether it be by use of the rentals paid for the year 1962, or by use of the method used by Messrs. Martin and Hal-lauer, the fact remains that the assessments are the result of the use of a remaining lease term of eight years as a multiplier when the evidence was that the leases generally expired in two years and seven months with no right to renew. His use of the average monthly rentals paid in 1962 multiplied by ninety-six months to determine the value of the leasehold interests for assessment purposes is not in accord with the method for determining the value of a leasehold approved by this court in Land Clearance for Redevelopment Corporation v. Doernhoefer, et al., Mo., 389 S.W.2d 780, 784 [2, 3], particularly as to the multiplier used (the assumed remaining life of the leases). The same fallacy exists in the results reached by witnesses Martin and Hallauer for both used a multiplier of ten years, which figure they said would, as a multiplier, produce the present discounted value of a lease having a remaining term of fifteen years. On the contrary the formula used by the witness Randall is in accord with the approved method. In Doernhoefer, supra, l. c. 784, the court said: “ * * * the value of the leasehold should be determined from the testimony of qualified expert witnesses as that value which a buyer under no compulsion to purchase the tenancy would pay to a seller under no compulsion to sell, taking into consideration the period of the lease yet to run, including the un-exercised right of renewal, the favorable and unfavorable factors of the leasehold estate, the location, type and construction of the building, the business of the tenant, comparable properties in similar neighborhoods, present market conditions and future market trends, and all other material factors that would enter into the determination of the reasonable market value of the property. The bonus value, sometimes referred to as the leasehold savings or profit, is the difference between the economic rental and the contract rental. The economic rental is the actual market value of the use and occupancy.”; and at l. c. 788, “The majority of the courts have ruled that the fair and reasonable market value of the balance of the demised term is the full amount of the difference between the fair rental value of the leased premises for the unexpired term and the rent reserved in the lease.” Also see: Annotation, 3 A.L.R.2d 286, 292; Metropolitan Building Co. v. King County, 62 Wash. 409, 113 P. 1114; Philadelphia, W. & B. R. Co. v. Appeal Tax Court, 50 Md. 397; Edmund Realty Co. v. Walmer Bldg. Co., 8 Cir., 123 F.2d 54; United States v. Petty Motor Company, 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729. The Assessor and both Martin and Hallauer explained that their choice of the 8 and 10-year multipliers was based on the assumption that the Airlines would remain tenants of the City for such length of time or longer, which may or may not be a reasonable assumption. But, assuming for the purpose of discussion only that it would be proper to use these figures as multipliers, there are, obviously, fallacies in other factors they have used in connection with their assumed projected lease terms: they have assumed that the depreciated cost of the Terminal building and the rents to be paid by the Airlines would remain the same. Neither of the latter assumptions is supported by evidence, and common experience dictates that the contrary would likely be true should the Airlines and City renew the leases. Under these circumstances the Commission, in its discretion, properly could disregard the opinions of Martin and Hallauer, reject the assessment of the Assessor as unlawful, improper and arbitrary, and accept the opinion of the witness for the Airlines in determining the value of the leasehold interests. May Department Stores Co. v. State Tax Commission, Mo., 308 S.W.2d 748, 761; Cupples-Hesse Corporation v. State Tax Commission, Mo., 329 S.W.2d 696, 701; Koplar v. State Tax Commission, Mo., 321 S.W.2d 686, 694. And, the rebut-table presumption of fact that the assessments are correct disappeared when the Airlines and City produced evidence that the Assessor used the contract rental paid multiplied by a term longer than the remaining life of the leases to produce the assessed value. Koplar v. State Tax Commission, supra; State ex rel. Kahler v. State Tax Commission, supra.

Respondents have moved to dismiss points I, II and III of appellants’ brief for the reasons that they fail to comply with Civil Rule 83.05(e), V.A.M.R., in that they are abstract statements of law and do not briefly and concisely state why the trial court was wrong. Point I only is a mere abstract statement of law, but it is a prologue to and introduces the reasons why in points II and III it is claimed that the court erred. It is upon these two points that the case is decided. The motion is without merit and is overruled.

The judgment in each of the above numbered cases is reversed and the causes remanded to the trial court with directions that it enter judgments in conformance with this opinion.

All concur.

      . No. 61,776 — St. Louis County, Missouri, Elmer E. Smith and Erank J. Antonio; and Berkeley School District, Plaintiffs-Respondents, vs. The State Tax Commission of Missouri, John A. Williams, Howard L. Love and J. Ralph Hutchison; and Ozark Air Lines, Inc., Defendants-Appellants, and City of St. Louis, Inter-venor-Appellant.
      No. 51,787 — St. Louis County, Missouri, Elmer E. Smith and Erank J. Antonio; and Berkeley School District, Plaintiffs-Respondents, vs. The State Tax Commission of Missouri, John A. Williams, Howard L. Love and J. Ralph Hutchison; and Trans World Airlines, Inc., Defendants-Appellants, and City of St. Louis, Intevenor- Appellant.
      No. 51,788 — St. Louis County, Missouri, Elmer E. Smith and Erank J. Antonio; and Berkeley School District, Plaintiffs-Respondents, vs. The State Tax Commission of Missouri, John A. Williams, Howard L. Love and J. Ralph Hutchison; and American Airlines, Inc., Defendants-Appellants, and City of St. Louis, Inter-venor-Appellant.
      No. 51,789 — St. Louis County, Missouri, Elmer E. Smith and Erank J. Antonio; and Berkeley School District, Plaintiffs-Respondents,- vs. State Tax Commission of Missouri, John A. Williams, Howard L. Love and J. Ralph Hutchison; and Central Air Lines, Inc., Defendants-Appellants, and City of St. Louis, Inter-veno r-Appellant.
      No. 51,790 — St. Louis County, Missouri, Elmer E. Smith and Frank J. Antonio; and Berkeley School District, Plaintiffs-Respondents, vs. State Tax Commission of Missouri, John A. Williams, Howard L. Love and J. Ralph Hutchison; and Braniff Airways, Inc., Defendants-Appellants, and City of St. Louis, Intervenor-Appellant.
      No. 51,791 — St. Louis County, Missouri, Elmer E. Smith and Erank J. Antonio; and Berkeley School District, Plaintiffs-Respondents, vs. State Tax Commission of Missouri, John A. Williams, Howard L. Love and J. Ralph Hutchison; and Eastern Air Lines, Inc., Defendants-Appellants, and City of St. Louis, Intervenor-Appellant.
      No. 51,792 — St. Louis County, Missouri, Elmer E. Smith and Frank J. Antonio; and Berkeley School District, Plaintiffs-Respondents, vs. The State Tax Commission of Missouri, John A. Williams, Howard L. Love and J. Ralph Hutchi-son; and Delta Air Lines, Inc., De-fehdants-Appellants, and City of St. Louis, Intervenor-Appellant.


source: Caselaw Access Project

author: BARRETT, Commissioner. PER CURIAM.

license: Public Domain

text:
    Flora E. HARDY, Respondent, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, Appellant.
    No. 51796.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.
    Motion for Rehearing or to Transfer to Court En Banc Denied Oct. 10, 1966.

      Ford, Ford & Crow, Kennett, for respondent.
    Ward & Reeves, Caruthersville, for appellant, Ernest D. Grinnell, Jr., St. Louis, of counsel.
   BARRETT, Commissioner.

In this action a widow, Flora E. Hardy, has been awarded $22,500 for the wrongful death of her husband, Ellett W. Hardy. Mr. Hardy was killed on October 26, 1964, when his one and one-half ton pickup truck and the appellant-railroad’s “extra train” 102 South, consisting only of a diesel locomotive and a caboose, collided on a grade crossing. The extra train was traveling south at a speed of approximately 50 miles an hour, en route from Portageville to Hayti. The crossing on which the collision occurred was “three miles and about nineteen and a half poles” south of Portageville. Mr. Hardy, a farm machinery salesman, was alone driving east on a gravel road, about 3:20 in the afternoon on a “light cloudy day.” The railroad, four feet above the country road level, is straight and level but intersects the road on an angle and there is a slight incline in the road up to the crossing. The “extreme left front fender” and “all across the front of the truck” and the “extreme front right side * * * along about the steps” of the engine came into collision. The respondent widow submitted her right to recovery by two instructions; one, on the primary negligence hypothesis of failure to ring the bell “and also failed to sound a horn or whistle” eighty rods from the crossing and, two, the humanitarian doctrine hypothesis of “slackening the speed of the train,” thereby avoiding the collision. The railroad contends that Mrs. Hardy failed to make a case under either theory and that its motions for a directed verdict should have been sustained and failing in either of these assignments contends that it is entitled to a new trial because of error in Instruction 5 submitting failure to signal.

Mary Margaret Mathenia, age 16, and her brother, Benny, age 18, live on the north side of the gravel road just west of the crossing. On October 26,1964, they, together with younger children, were working in a cotton field across the road from the house. Benny was picking cotton 220 steps from the railroad, 240 “regular steps” from the crossing and Mary Margaret was at the end of a row weighing cotton. They heard or saw the train and immediately important on the problem of whether there was a humanitarian case described the circumstances attending the collision. Mary Margaret first saw the train when it was a half-mile from the crossing but she was weighing cotton and did not watch continuously. She saw Mr. Hardy pass and saw “the kids” wave at him. She and Benny testified to facts from which it is probably inferable that by reason of some trees there was a place and a period of time in which Mr. Hardy could not see the train as he approached the crossing. Mary Margaret said “there was an open space and there was a dead tree there where the train began to blow its whistle.” On photographs, really too small to be impressive, she pointed to the trees and the opening. The engineer said that at the “Whistle Board,” a quarter of a mile from the crossing, “there is a tree there * * * which would block your view out for a few feet to see down that road * *

But to establish a humanitarian case Mrs. Hardy called as her witness engineer Duncan. A quarter of a mile north of the crossing there was a “Whistle Board” and Duncan said that as he sounded the whistle in accordance with the board the train was traveling at a speed of SO miles an hour. As indicated, from his point of observation, seated at the throttle, Mr. Duncan was looking ahead and to the right and “three to four pole (a pole is ISO feet) lengths before the crossing” he could see west down the gravel road and at that distance (600 feet) and speed (50 miles an hour) he first saw the pickup truck “a little closer to the crossing than I was” and traveling “I would estimate it somewhere around forty miles an hour and judging from the speed I was going.” He said that he did not see the truck prior to that time, that is prior to 600 ‘ feet north of the crossing, that he was blowing the whistle and looking ahead but watching the truck and he said “I watched it until the time of the impact.” As to the pickup, he said, “Well, when I first noticed him he was slowing down, and I could tell his speed was reduced but I couldn’t tell how much, but he looked like he was slowing down. * * * He didn’t slow down as much as it seemed like he was slowing down — seemed like his rate of slowdown didn’t decrease or it seemed — I mean increase, but seemed like it more or less leveled off after he first slowed down.” When Hardy “leveled off” Duncan said, “Oh, I was possibly between one and two pole lengths (300 feet) from the crossing and he was on up nearer to the crossing.” But “he just wasn’t slowing down as much as I thought he ought to to get stopped and my judgment. * * * Well, he slowed down and he didn’t slow down as much as I thought he should be slowing down to get stopped at the crossing * * He said that when he first noticed the pickup slowing “it could have been a little nearer than three poles” (450 feet) but, he said that he did not slow down as much as five miles an hour. As to slowing down and leveling off at 35 miles an hour Duncan said, “I would say that it was possible but I wouldn’t say that he did because I really couldn’t tell how fast he was going.” In any event, when the engineer “saw there was a possibility that there might be a collision, and I placed the emergency brake valve in emergency application.” It was his estimate that the locomotive was then “between one and two pole lengths from the crossing” and that it was “possibly” one pole length (150 feet) by the time he “got the thing all the way over.” Nevertheless the locomotive and the truck collided and at the moment of collision he estimated the speed of the truck at 20 miles an hour and the train “had probably slowed down some but I didn’t know how much” between the emergency application and the collision, “I would say at least five miles an hour.” Duncan said that from the point of placing the brake in emergency the train stopped in “approximately twelve pole lengths,” 1800 feet.

Mrs. Hardy’s submission of humanitarian negligence was that “at the moment when Defendant first knew or could have known of such position of immediate danger, Defendant still had enough time so that by using the means available * * * Defendant could have avoided injury to Ellett W. Hardy by slackening the speed of the train.” With this hypothesis in mind Mrs. Hardy argues that from the noted testimony, while “niceties in mathematical calculations are often necessitated,” a jury case of humanitarian negligence was made. It is not necessary to set forth her argument in full and examine all the inferences, it is sufficient to illustrate. She says there was evidence that the train had slackened its speed at least five miles per hour from its previous speed of 50 miles an hour and that “such slackening was accomplished in a distance of 22.5 to 40 feet.” She says that Mr. Hardy’s speed at the crossing and on impact was 20 miles an hour and “therefore only required .887 of a second to have cleared the 26 feet necessary to have avoided the collision, that is, 8 feet being the width of the train and 18 feet the length of the truck.” She says that the truck “leveled off” and continued at an undiminished speed and from this she contends that the train crew should have been aware of Mr. Hardy’s “inattention and obliviousness.” She asserts that the best evidence “of what defendant’s train could slacken its speed to in a certain distance, as being that in which it did in fact slacken to” and from this she argues that the jury was entitled to conclude that had'the engineer “applied the brakes (in emergency) at a distance of 558.8 feet from the crossing, the train would have been delayed adequate time to have avoided the collision.” In her argument, after these and numerous other calculations, the respondent evolves a formula and concludes that it was a jury question whether engineer Duncan “should have reacted to the circumstances which indicated a reasonable chance of decedent’s inattention, before reaching a distance of 358.8 feet.”

It is not necessary here to separate in this elaborate argument “assumptions” from “fact” or from “reasonably permissible inferences.” As, for example, the statement or conclusion that there was proof or a permissible inference of Mr. Hardy’s “obliviousness” and testimony from which a jury could reasonably draw the further inference that thereafter the speed of the train could “have been delayed” and the collision thereby avoided — here by permitting the truck to safely proceed over the crossing. The cases upon which Mrs. Hardy relies illustrate the weakness of her argument that her proof supports the inference of Mr. Hardy’s immediate and imminent peril and thereafter the ability to slacken speed sufficiently to have avoided a collision. In the first place, no analysis is necessary to demonstrate, despite her calculations, that this was not “an almost escaping case” as that term has come to be known in humanitarian doctrine parlance, as in Janssens v. Thompson, 360 Mo. 351, 228 S.W.2d 743, a leading and classic case. And this is not to say that expert or opinion testimony is necessary in all humanitarian cases but here there was no direct testimony as to the stopping distances of the train at various speeds and hence proof or a plain inference of slackening in the same distance in which the train could be stopped as in the Janssens case. That the train here stopped in “approximately twelve pole lengths” after Duncan applied the emergency brake does not support the necessary following inference that the train could have been sufficiently slackened by an emergency application of the brakes 358.8 feet from the crossing (assuming, of course, that that was the point at which the duty to act arose). The guest, pedestrian, warning and automobile-truck collision cases are not helpful, particularly in view of the numerous railroad crossing cases.

The principal case upon which the respondent relies, Wabash Railroad Company v. Dannen Mills, Inc., 365 Mo. 827, 288 S.W.2d 926, illustrates the quality of the circumstances, absent expert testimony, required to establish a humanitarian case based on obliviousness imminent peril and slackening speed. In the first place this is not a muddy-road case which in its peculiar circumstances may reasonably show preoccupation of the motorist with his dilemma and hence support the inference of obliviousness as in Womack v. Missouri Pacific R. Co., 337 Mo. 1160, 88 S.W.2d 368. In the Dannen Mills case, among numerous other compelling factors, the engineer with a train speed of but 30 to 40 miles an hour admittedly saw the approaching truck on a hazardous road with a speed of 40 miles an hour 800 feet from the crossing and testified that if he had braked at 500 feet of the crossing the speed of the train would have been slackened and plainly the truck would have passed over the crossing in safety. Another typical illustration of a slackening speed and almost escaping case is Moody v. Missouri-Kansas-Texas R. Co., Mo., 296 S.W.2d 51.

It is not necessary to demonstrate in detail that the circumstances pointed to by the respondent do not constitute substantial proof of a humanitarian case based on Mr. Hardy’s obliviousness, his imminent peril, and thereafter the ability of the railroad to have sufficiently slackened the speed of the train thereby permitting Mr. Hardy to proceed over the crossing in safety. Having noted the categories of cases into which this one does not fall, it is sufficient to note three cases which closely on their facts control one phase or another of this appeal and illustrate that this case should not have been submitted to the jury on the humanitarian doctrine. In Reedy v. Missouri-Kansas-Texas Railroad Co., Mo., 347 S.W.2d 111, the plaintiff pointed to certain circumstances which she said admitted of a mathematical formula and a humanitarian case of obliviousness (extending the zone of peril) and slackening speed or of a warning. In that case there was proof that had the train’s brakes been applied in emergency 375 feet from the point of collision the truck could have passed over the crossing in safety and so the vital question was whether Reedy’s obliviousness “should have become reasonably apparent to fireman Garvey during this second interval.” The court pointed out that in some circumstances speed may indicate obliviousness and an intention on the part of the motorist of not stopping short of the crossing. But there the speed of the truck was 10 to 12 miles and so could have been stopped in 18 feet and of course slowed or turned aside in a lesser distance, consequently speed did not support the inference of obliviousness “before he (Reedy) drove his truck onto the crossing at which time it was too late for the defendant to avoid the collision.” In Bunch v. Missouri Pacific R. Co., Mo., 386 S.W.2d 40, there was no expert testimony and as here the plaintiff called the railroad’s engineer as a witness. It is not necessary to detail the facts, the speeds were less, but material here are these excerpts: “A humanitarian case which leaves one or more of the essential elements to guesswork, speculation or conjecture is not for the jury.” Again, in that case, there was no reasonably permissible inference of obliviousness to extend the zone of peril and after considering reaction time the court concluded “there was no substantial evidence on which a jury could find that after the plaintiff came into a position of imminent peril the defendant’s engineer could have slackened the speed of the locomotive and coal cars sufficiently to have avoided the collision”. And finally, in West v. St. L.S. F. Ry. Co., Mo., 295 S.W.2d 48, the court made very careful computations upon every possibility but material here, particularly to the contention of the truck’s ability to pass in safety, the court concluded: “There was no direct evidence as to the location or speed of the train when respond-: ent had reached the point where a jury could have found from appearances that respondent was in imminent peril of the train. * * * There is no basis in the record for any finding that an effective application of the brakes could have within the lapse of 1¼ to 1¾ seconds have delayed the train ½ second in arriving at the crossing. We find no substantial evidence in the record to support a finding that appellants’ trainmen, after imminent peril arose, could have slackened the speed of the train and have avoided the collision.” (295 S.W.2d 1.c. 55.)

On the other hand, her submission of primary negligence is another matter, the railroad admits that there was substantial evidence of its negligent failure to sound the whistle or ring the bell. Its contention is that nevertheless Mr. Hardy was guilty of contributory negligence as a matter of law. The gist of this assignment is that “(t)he decedent had an unobstructed view of the train when both the train and truck were at least one-fourth mile from the crossing, and the approaching train continued to be in his plain view up to the instant that his truck crashed into the right front of the diesel engine.” Of course if all these factors and others equally as compelling appear as they did in three of the cases there could be no recovery because of contributory negligence. Such were the cases of Tietze v. New York, C. & St. L. R. Co., Mo., 250 S.W.2d 486; Borrson v. M.-K.-T. R. Co., 351 Mo. 229, 172 S.W.2d 835; Willis v. Wabash Railroad Co., Mo., 377 S.W.2d 489. But there are several factual dissimilarities in these and other cases relied on by the railroad. For example, in Scott v. Kurn, 343 Mo. 1210, 126 S.W.2d 185, the driver of the tank truck survived and testified and there could be no question as to what he saw and did and with his truck “in second gear” he slowly proceeded onto the tracks and of course was guilty of contributory negligence as a matter of law. In Lohmann v. Wabash Railroad Company, 364 Mo. 910, 269 S.W.2d 885, the decisive point was that the testimony of plaintiff’s three principal witnesses was “plainly contrary to the demonstrated physical facts.” In Pipes v. Missouri Pacific Railroad Co., Mo., 338 S.W.2d 30, the plaintiff’s guest testified to the circumstances and they left no alternative than the conclusion that heedless of a lighted crossing and a lighted diesel the plaintiff either saw or failed to look for a train and in either event was guilty of contributory negligence when he drove onto the crossing.

In any event upon this particular record the controlling case is Zumault v. Wabash Railroad Co., Mo., 302 S.W.2d 861. As with all the cases there are differences in facts but in the Zumault case the court took into consideration a number of compelling factors and they are present and applicable to the deceased in this case. In the beginning the court noted several general rules in the light of which the factors were considered. There was the burden of proof: “The burden of proving plaintiff’s contributory negligence was on the defendant.” And as against the charge of failure to look or listen or to have control of one’s vehicle it was said, “Before the court can declare that contributory negligence is shown as a matter of law, such negligence must clearly appear from admitted or conclusively proved facts. If reasonable men may honestly differ with respect to the inferences to be drawn from such facts, then the question whether the driver exercised the care required for his own safety is for the jury.” It was pointed out that the circumstances were to be viewed favorably to the plaintiff motorist. The physical surroundings were described and the testimony detailed and from these the factors were selected. Among the factors was the fact that after the automobile driver passed a point 40 feet north of the tracks at which he could see west 1000 feet his view was again obstructed by weeds or underbrush. The train was late, here it was an “extra train,” there it was traveling at an estimated speed of 70 to 78 to 100 miles an hour. There the automobile was traveling at a speed of 10 miles an hour when 10 to 15 feet from the track, here the speed of the truck was 40 miles an hour 500 feet from the track. The photographs and plats in that case did not indisputably establish sight distances and other measurements, here there were no plats, only estimates of distances and in several important respects the photographs were inconclusive. As to control of the vehicle it was pointed out that the plaintiff was driving at a lawful, reasonable speed, and the court observed, “(t)he mere fact that plaintiff did not stop his automobile before it fouled the track does not justify the conclusion as a matter of law that he was not exercising the degree of care imposed by law upon the operator of a motor vehicle.” The crossing itself was noted, a narrow single lane for vehicular traffic, here there was a gravel road and a typical country crossing protected only by a wooden cross-arm signal. And finally of course in this case it is admitted that the bell was not sounded in accordance with the statutory admonition, and it is conceded that die plaintiff’s evidence supports the finding that the signal by whistle was not timely and properly given. And so, without further demonstration, here as in the Zumault case “(u)nder the facts and circumstances in evidence in this case, the determination of whether the plaintiff was guilty of contributory negligence was for the jury and not the court.”

Thus the railroad was not entitled to a directed verdict upon the plaintiff’s primary negligence submission of failure to properly and timely signal. But the plaintiff-respondent’s evidence did not support her humanitarian negligence submission and the consequence is that the jury was instructed upon a theory of which there was no proof. The case was tried and submitted under MAI instructions, and as to the humanitarian doctrine it was not an instance of a case or instruction with “several elements which must be submitted in the conjunctive, but these will be in support of a single theory of recovery or defense.” The submission here, a supported theory of primary negligence and an unsupported theory of humanitarian negligence, plainly falls within the committee’s comment to MAI No. 1.02, p. 7 “the jury should not be instructed on a theory of recovery or defense not supported by the evidence and that any such submission, whether in the conjunctive or disjunctive, should be reversible error. A theory of recovery or defense should not be submitted unless it can stand alone.”

In this view it is not necessary to consider whether Instruction 5 submitting primary negligence was also erroneous. Because of the error in submitting a theory of recovery not supported by the evidence the judgment is reversed and the cause remanded.

STOCKARD, C., concurs.

PRITCHARD, C, not sitting.

PER CURIAM.

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

EAGER, P. J., and FINCH, DONNELLY and STORCKMAN, TT., concur.


author: STOCKARD, Commissioner. PER CURIAM:

text:
    STATE of Missouri, Respondent, v. Ralph WOODY, Appellant.
    No. 51357.
    Supreme Court of Missouri, Division No. 2.
    Oct. 10, 1966.

      Norman H. Anderson, Atty. Gen., Jefferson City, Fielding Potashnick, Pros. Atty., Scott County, Sikeston, Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
    Jack O. Edwards, James E. Moore III, Sikeston, for appellant.
   STOCKARD, Commissioner.

Ralph Woody, charged as an habitual criminal, was found guilty by a jury of an assault with intent to maim, and was sentenced by the court to confinement for a term of five years. He has appealed from the ensuing judgment, and in his brief filed in this court he limits his challenges to the sufficiency of the information and the evidence.

The information alleged that on August 7, 1964 appellant “did * * * willfully, unlawfully and feloniously, assault one Ercell Thompson by striking and beating said Ercell Thompson, causing him great bodily harm with the intent to maim said Ercell Thompson * *

Appellant correctly asserts that the above wording of the information is insufficient to allege a violation of § 559.180 (all statutory references are to RSMo 1959, V.A.M.S.) because it does not allege “malice aforethought.” State v. Gannaway, Mo., 313 S.W.2d 653. However, the State asserts that the information charges an offense under § 559.190, which in its material parts is as follows:

“Every person who shall be convicted of an assault with intent to kill, or to do great bodily harm, or to commit any robbery, rape, burglary, manslaughter or other felony, the punishment for which assault is not hereinbefore prescribed, shall be punished * * *.”

The information charges an assault with an intent to maim, but unlike § 559.180 the intent to maim is not specifically mentioned in § 559.190. The State contends, however, that maiming is a felony, see § 559.210, and constitutes an “other felony”, within the meaning of § 559.190. In State v. Hampton, Mo., 256 S.W. 745, an information charged “an assault with the intent * * * to beat, maim, and wound” under what is now § 559.190, and it was held sufficient. Whether the basis for that ruling was that maiming constituted an “other felony” is not clear from the opinion. We are of the opinion that maiming is an “other felony” within the meaning of § 559.190, and that the allegations in the information, while inartfully drawn, are sufficient. However, in addition to the above reason for holding the information sufficient, there is another equally compelling reason. As distinguished from the statutory definition of mayhem, see § 559.200, the words “to maim” have no technical meaning and are to be considered in their ordinary sense, and “as usually defined, they mean the infliction of some serious bodily injury.” State v. Foster, 281 Mo. 618, 220 S.W. 958, 960.

In State v. Gillespie, Mo., 336 S.W.2d 677, an information charged an assault “to do great personal injury or bodily harm” with malice aforethought under § 559.180. That section proscribes an assault with intent “to maim” but does not in specific terms proscribe an assault with intent to do “great bodily harm.” After citing and quoting from State v. Foster, supra, and State v. Hardy, 359 Mo. 1169, 225 S.W.2d 693, it was specifically held in the Gillespie case that an allegation of an intent to do great personal injury or bodily harm is equivalent to an allegation of an intent to maim, and within the terms of § 559.180. It necessarily follows in this case that the allegation in the information of an intent “to maim” is the equivalent of an allegation of an intent “to do great bodily harm” within the meaning of that term in § 559.-190. For these reasons we conclude and hold that appellant’s challenge to the information is without merit.

The remaining contention is that the State failed to sustain its burden of proof in that it failed to prove “essential elements of the offense charged.” From the argument portion of appellant’s brief we find that the contention is limited to the proposition that the State “failed to show that defendant * * * ever in any way engaged in striking or beating” Ercell Thompson.

From the evidence the jury reasonably could find the following. On August 7, 1964, Mr. Thompson, as jailer of the Scott County jail, opened the door to a cell block to permit three trustees to enter, and a prisoner by the name of Dunlap grabbed Thompson and called for help. Appellant and two other prisoners responded, and together they pulled Thompson into the cell. At this time appellant had a broken broom handle in his hands, and while Thompson’s head was being held by Dunlap so that he could not see who struck him, Thompson “felt several blows” on his head. At that time none of the other prisoners had a weapon. In response to a demand from the prisoners, Thompson gave them a key, but it would not unlock the front door. Appellant then told Thompson that if he would give them the key to the front door “we won’t hurt you,” and when the key was not turned over to them prisoner Smith struck Thompson on the head with an iron pipe. Appellant was present and still had the broom handle in his hands. After the encounter was over Thompson had received several cuts on his head, one which required ten to fourteen stitches to close, and he was hospitalized for a week as the result of his injuries.

From these facts a jury reasonably could find that an assault was committed on Thompson with the intent to maim, that is, to inflict great bodily harm. In determining this intent the jury could consider the nature of the weapon used, the manner of using it, the results of its use, and all the related circumstances giving rise to the incident out of which the charge arose. State v. Gannaway, supra, 313 S.W.2d at p. 656. Appellant is in error in his contention that the evidence failed to show that he struck or beat Thompson, but that is immaterial. Appellant and his three fellow prisoners, in their assault upon Thompson, were acting with a common purpose. Appellant was present throughout the incident, and in fact he was a leader in the activity. The gravamen of the offense is the assault, and all who act together with a common intent in the commission of a crime are equally guilty, and in this case this would be true even though one or more of the participants may not have actually struck a blow. State v. Allen, Mo., 246 S.W. 946. See also State v. Present, Mo., 344 S. W.2d 9; State v. Mitts, Mo., 347 S.W.2d 677.

An instruction in the usual form was given which advised the jury that all persons are equally guilty who act together with a common intent in the commission of a crime, and that a crime committed by two or more persons acting jointly is the act of all and of each one so acting. No assignment of error as to this instruction is set forth in the motion for new trial, and there is no attempt to challenge it on this appeal.

In addition to the sufficiency of the information, we have examined the other matters of record as required by Criminal Rule 28.02, V.A.M.R., and find no error.

The judgment is affirmed.

BARRETT and PRITCHARD, CC., concur.

PER CURIAM:

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

All of the Judges concur.


author: EAGER, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Edward Ulysses GREGORY, Appellant.
    No. 52084.
    Supreme Court of Missouri, Division No. 2.
    Oct. 10, 1966.

      J. Whitfield Moody, J. Arnot Hill, Kansas City, for appellant.
    Norman H. Anderson, Atty. Gen., Jefferson City, Eugene E. Reeves, Sp. Asst. Atty. Gen., Caruthersville, for respondent.
   EAGER, Presiding Judge.

Defendant was charged by information with first degree robbery and a prior felony conviction. A jury found him guilty, and the court found from the evidence that the Habitual Criminal Act was applicable; it imposed a sentence of ten years, later reduced to eight. By a timely motion for new trial counsel properly raised the question which now constitutes the issue on this appeal. Defendant was and is most effectively represented by a member of the staff of the Public Defender of Jackson County.

The evidence here must be considered in the light most favorable to the jury’s verdict and inferences to the contrary must be disregarded. State v. Watson, Mo., 350 S.W.2d 763, 766. So considered, the evidence disclosed the facts which we now relate. On the evening of September 10, 1965, one Kelly Breshears was in sole charge of a filling station of the Martin Oil Company located at the corner of Truman Road and Park Avenue in Kansas City. Very shortly after 8:00 p. m. a colored man entered the building, went to the rest room and came out; he then “walked back out around the building, and then two more come down the street,” and came in. At about that same time the first man re-entered, sat down on a little bench near the front window and carried on some conversation with one or both of the two men. Breshears had been busy with cars outside, stepping in occasionally, but when he finished he came in to see what the men wanted. After some rather immaterial preliminary conversation, and as Breshears turned to hand a package of cigarettes to one of the two who entered together the other one (of the two) stuck the barrel of a small chrome-plated revolver in his ear or just under his ear, pushed his “head back around,” told him to shut up and ordered him into the back room. The man on the bench was, at that particular time, only four to six feet away to the side of Breshears, and he did not leave when these things occurred. Without going into all the details, the two men conducted and more or less pushed Bre-shears into the back room, proceeded to take all the money he had, including some change from his coin changer, and forced him to give them the key to the safe. After leaving him on the floor in that room with a raincoat over his head, and with threats to kill him if he did not so remain for five minutes, the men took all the money from the safe, including some rolls of coins.

Mr. Charles Dixon, a customer whose gas tank Breshears had partly filled and who had completed the job himself, started in from the pump area to pay for his gas; a Negro man confronted him and said in a rather low voice, “I’ll take your money”; Dixon pretended not to hear him, the direction was repeated in a louder voice and Dixon gave the man a five dollar bill, getting some change back. He asked for his “trading stamps,” was told “We don’t have any,” and he then began to think the transaction was “funny”; he started into the station and was almost run over by two Negro men who ran out. The latter two started around the corner, one apparently having money in his hand, and Dixon had started back to his car to leave, when one of the two returned, pointed a small chrome revolver at him, and took his billfold. Thereupon, the three left together running around the corner and south on Park Avenue. Dixon had a considerable sum of money in his billfold; as indicated later, the billfold was recovered and, according to Dixon, a part of the money also. Dixon was unable to identify any of the three, since it was after dark and the station was not very well lighted. The robbery of Dixon is not directly involved in this case, but is merely one of the attendant circumstances.

At the trial Breshears positively identified the defendant as the man who came in the station first and went to the rest room, returned when the other two entered, talked with them, and sat on the bench. He further testified that defendant then had on tinted glasses, that a man later identified as Thomas was the one who held the gun on him, and that Thomas did not have on glasses. The robbery occurred at a few minutes after 8:00 p. m. Dixon testified that the man who took his billfold was wearing glasses.

At 8:14 p. m. a city patrolman operating a speed check at 18th and Euclid (approximately four blocks from the scene of the robbery) timed a car at a speed in excess of the limit and gave chase. He stopped it two blocks away at 18th and Vine. The car contained three Negro men. The driver got out and showed his driver’s license; he proved to be this defendant. At about that moment a report of the robbery was broadcast on the police radio with tentative descriptions, and the officer, hearing it then and there, tentatively identified the occupants of the car as suspects. At that time the front seat, passenger picked up something from the seat, jumped out and ran down Vine Street. The officer could see something white in his hand, like a cloth or bag; he was unable to chase the man, who thus escaped. The officer called for assistance and other officers arrived. The officers then conducted a “frisk” search of the remaining two men for weapons; they searched the car and found at least two rolls of small coins on the floor in front on the passenger’s side, some loose change, a chrome-plated, loaded revolver stuck under the cushion of the rear seat, and a hunting knife and sheath. A roll of pennies so found was stamped with the name of “Martin Oil Company.” Both of the men denied participation in the robbery; one of them, according to the police, then had on dark glasses. Various articles so found were identified at the trial. The arrest was made about six blocks from the scene of the holdup. In the “frisk” search one of the officers felt (as he so testified) a billfold in each hip pocket of Gregory, the defendant, a fact which he considered most unusual; that witness was recalled the next morning and was shown the police report (which he had prepared) stating that Thomas, the other man, had two billfolds. However, the witness again stated that, according to his recollection, it was this defendant who had them. Nothing was taken from the men’s persons in the “frisk” search; they were taken from the scene of the arrest in the “paddy-wagon,” and after they arrived at the police station Dixon’s billfold was found on the floor of the “wagon” under a seat. Thomas, who was defendant’s witness, denied ever having it and denied seeing it except at the police station.

The defendant did not testify; Thomas, who had pleaded guilty and received a sentence of eight years, did testify on behalf of the defendant. His testimony is somewhat hard to follow and, since there was a guilty verdict, we need not recite it in any detail. The gist of it was: that he and two other men committed the robbery; that he, Thomas, used the gun; that defendant was not one of the three, and was not even there; that after leaving the scene and running for a while they saw defendant (whom he knew) driving a car and stopped him; that he and the associate whom he knew as Robert Johnson got in and rode with defendant; that the one known as “Red” was a little behind and did not make it to the car; that Johnson was the one who jumped out of the car and ran and that he had the money; that he, Thomas, was not wearing glasses; that when arrested he had only one billfold, and that he put the pistol under the rear seat. Thomas had at least two prior felony convictions. While Thomas was on the witness stand the prosecutor brought in a man and asked Thomas if that man was “Red.” Thomas said that he was.

In rebuttal the State produced one Robert E. Kingyon who testified: that he was sometimes called “Red” and other nicknames; that he did not take part in the robbery and was not at the filling station that night; that he was driving his cousin’s car at an unstated time on that evening, picked up the defendant, parked the car at 16th and Olive and let defendant out; that later he found that the car was missing, and he next saw it at the scene of the arrest, about to be towed away; that the police took him to the station, too. That evidence is not legally material to our issue, whatever its effect may have been on the jury. The State did not identify this witness for the record as the one whom Thomas had identified.

The issue at the trial was principally the factual controversy raised by Breshear’s identification of defendant as one of the three men at the station, on the one hand, and Thomas’ exoneration of the defendant on the other. The jury decided that issue, and we now rule the case upon its finding that defendant was present in and at the station under the circumstances related by Breshears.

The sole point raised here by defendant is that the evidence was insufficient and that the court should have directed a judgment of acquittal. Counsel says that there was no direct evidence of defendant’s participation, and that the circumstantial evidence was not inconsistent with the “reasonable theory of innocence” advanced by defendant, meaning, of course, the theory of his having picked up the hitchhikers. We hold that, while there was no direct evidence of defendant’s actual participation in the robbery itself, there was direct evidence of his immediate presence at the time, from which the jury was entitled to draw an inference, if it so found, that he was aiding and abetting in the perpetration of the robbery. The jury was given an instruction on that subject to which no objection is made. Defendant’s movements, his times of arrival and leaving, his immediate proximity at the time of the actual robbery, his apparent acquaintance with the robbers and his conversations with one or both of them, and indeed all of the circumstances created the basis for an entirely reasonable inference that defendant was acting in conjunction with the other two, as a lookout or otherwise.

Obviously counsel is urging the insufficiency of the circumstantial evidence showing that defendant was the driver of the car at the time of the arrest, and that it contained two of the actual robbers, the revolver, and all or part of the loot; this, of course, within a very few minutes after the robbery and within four blocks of the place where it occurred. Counsel relies almost entirely on the opinion of this court in the case of State v. Watson, Mo., 350 S.W.2d 763. There, a filling station in a rural area had been burglarized by two men who were seen in the darkness but were not identified. A car, answering the description of the robbery car, was stopped for a traffic violation some twelve to fourteen miles from the scene, about fifteen or twenty minutes later, and the loot from the station was found in the trunk and on the back seat. One Thomas was the driver and the defendant was a passenger on the front seat. Two loaded automatic pistols were found, one under each side of the front seat. Both men were arrested and charged with the burglary and theft. Thomas plead guilty and was sentenced; his passenger, the defendant, stood trial and was convicted. On appeal the conviction was reversed for insufficiency of the evidence. In that case there was no evidence whatever placing the defendant at the scene of the crime, and indeed no evidence of any nature of his guilt except the fact of his presence in the car under the circumstances recited. Thomas, the driver, testified there that he had picked up the defendant as a hitchhiker after he left the scene of the burglary, and certain other more or less corroborating evidence was also offered and received. This court held, in substance, that the joint possession of the loot by Thomas and defendant, as indicated by their joint presence in the car, was insufficient without more, to raise an inference of guilt which would justify submission, particularly in view of the absence of any evidence of knowledge of the circumstances on defendant’s part. The court also held that a mere “suspicion” of guilt is not sufficient to justify a conviction, citing State v. Matticker, Mo., 22 S.W.2d 647. There can be no argument about that. The court quoted with approval from 12 C.J.S. Burglary § 59b, pp. 736-738, which quotation contained the following statement: “‘If possession is joint with another, there must be something else in the evidence to connect defendant with the offense; but possession by others may be sufficient if a conspiracy is shown.’ ” And further the court said, loc. cit. 350 S.W.2d 766: “That possession by others or a joint possession may be sufficient if a conspiracy or a common purpose to commit a crime is shown is apparent from the decisions of State v. Strait, Mo., 279 S.W. 109; State v. Dowling, 360 Mo. 746, 230 S.W.2d 691, 694 [4, 5]; and State v. Jordan, Mo., 235 S.W.2d 379, 382 [3, 4].”

There can be no doubt that in Missouri all who act together with a common intent in the commission of a crime are equally guilty. State v. Slade, Mo., 338 S.W.2d 802; State v. Johnson, Mo., 347 S.W.2d 220. In State v. Oliver, 355 Mo. 173, 195 S.W.2d 484, the court said, loc. cit. 486: “To create an inference of guilt, the term ‘exclusive’ does not mean that the possession must be separate from all others provided there is other evidence to connect defendant with the offense. 12 C.J.S., Burglary, § 59 subsec. b, p. 738; State v. Wyre, Mo.Sup., 87 S.W.2d 171. The facts here may indicate that more than one person committed the crime, but they are sufficient to authorize the jury to find that defendant was one of the guilty persons.”

We conclude, as we have already indicated, that here there was “other evidence” of a substantial and direct character to connect defendant with the commission of the robbery, and that the court properly overruled the motion for a judgment of acquittal. This case is clearly distinguishable in that respect from our decision in the Watson case and that decision is not controlling.

The judgment is affirmed.

All of the Judges concur.


text:
    Jerry L. NOE and Shirley Ann Noe, Appellants, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Respondent.
    No. 51731.
    Supreme Court of Missouri, Division No. 2.
    Sept. 12, 1966.
    Motion to Transfer to Court En Bane or for Rehearing Denied Oct. 10, 1966.

      Daniel, Clampett, Ellis, Rittershouse & Dalton, Donald W. Jones, Springfield, for appellants.
    Glenn A. Burkart, Mann, Walter, Burk-art, Weathers & Schroff, Springfield for respondent.
   STOCKARD, Commissioner.

The issue here presented is whether an action may be maintained in the courts of this State under a Louisiana statute which gives a right of direct action by an injured person against a liability insurer for the damages he has sustained, irrespective of whether or not a judgment has been first obtained against the insured.

The Louisiana statute (La.Rev.Stat. 22:655), in its parts here material, provides that an “injured person * * * shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Art. 42, Code of Civil Procedure. This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the State of Louisiana.”

Plaintiffs’ petition is in two counts. The first is on behalf of Jerry L. Noe who alleged that he was injured in the State of Louisiana as the result of the negligence of Dr. Hugh Lamensdorf who was insured by a policy of liability insurance issued by defendant. The second count is on behalf of Shirley Ann Noe, wife of Jerry, for loss of consortium. Defendant contends that no action by a wife for loss of consortium exists under the Law of Louisiana, but we need not rule that question. The trial court dismissed the petition for failure to state a cause of action against defendant, and plaintiffs have appealed. We have jurisdiction by reason of the amount of the prayer.

There is no statute in Missouri comparable to the direct action statute of Louisiana, and there is no contention that plaintiffs are entitled to maintain this suit in this State except on the basis of the Louisiana statute. Plaintiffs contend that the statute is substantive, and that pursuant to the full faith and credit provision of the federal Constitution they are entitled to maintain in this State this direct action against the alleged tort-feasor’s liability insurer. Defendant, on the other hand, contends that the statute is procedural only and has no extra-territorial effect.

It is the general rule that the court at the forum determines, according to its own rules as to conflict of laws, whether a given foreign law is substantive or procedural, but in making this determination it will give consideration to the interpretation of the foreign law by the courts of that state. Hopkins v. Kurn, 351 Mo. 41, 171 S.W.2d 625, 149 A.L.R. 762; Restatement, Conflict of Laws, § 584. In our examination of the Louisiana direct action statute, we are immediately impressed with the fact that it does not in express terms impose liability on or create a new cause of action against the insurer. Instead, it purports to create a method or procedure for enforcing in the courts of that State the cause of action which came into being by the tortious act of the insured. Following the provisions of the statute quoted above, it is further provided that it is the “intent” of the statute that “all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable”. Thus it recognizes that the cause of action is based on the liability of the insured, and that the statute is designed to afford a procedural remedy to enforce that liability. In addition, the language of the statute creating the right of action directly against the insurer to enforce the liability of the insured to the injured person expressly provides where the remedy there authorized may be exercised, and it limits that right to the courts of Louisiana in certain designated parishes. Although the direct action statute, by amendment, now provides that the action may be brought in additional parishes in Louisiana than previously authorized, the effect of such a limitation contained in the statute creating the right of action was expressly recognized in Morton v. Maryland. Casualty Company, 1 A.D.2d 116, 148 N.Y.S.2d 524, affirmed 4 N.Y.2d 488, 176 N.Y.S.2d 329, 151 N.E.2d 881; Pearson v. Globe Indemnity Company, 5 Cir., 311 F.2d 517; and Oltarsh v. Aetna Insurance Company, 15 N.Y.2d 111, 256 N. Y.S.2d 577, 204 N.E.2d 622. In the Morton case it was held that “the right and the remedy are so united that the right cannot be enforced except in the manner and before the tribunal designated by the act.”

We shall consider now what the courts of Louisiana have had to say concerning the rights created by this direct action statute. In Finn v. Employers’ Liability Assurance Corporation, La.App., 141 So.2d 852, the court said this: “Nor do we find any merit in the contention that the direct-action statute created separate and distinct causes of action, one against the insurer alone and another against the insurer and the insured. The statute is remedial in character, rather than substantive, and does not create causes of action.” Other similar rulings of the Louisiana Court of Appeal may be found in Rossville Commercial Alcohol Corporation v. Dennis Sheen Transfer Co., Inc., 18 La.App. 725, 138 So. 183; Lowery v. Zorn, La.App., 157 So. 826; Robbins v. Short, La.App., 165 So. 512, Mock v. Maryland Casualty Company, La. App., 6 So.2d 199; Churchman v. Ingram, La.App., 56 So.2d 297. We have found no court of appeal decision to the contrary. In Burke v. Massachusetts Bonding & Insurance Co., 209 La. 495, 24 So.2d 875, the Supreme Court of Louisiana had the issue squarely before it. There the plaintiff was injured in Mississippi as the result of the negligence of her husband, and under the law of Mississippi one spouse had no cause of action against the other for tort, and Mississippi had no direct action statute. The Louisiana Supreme Court said this: “It is conceded that Act 55 of 1930 [the direct action statute] is procedural and not substantive, and it is only by virtue of the statute that plaintiff brought her suit in Louisiana. Plaintiff insists that since the statute creates no substantive right, the case must be governed by the law of the place where the remedy is sought. But the statute merely gives a claimant a direct right of action against the liability insurer when he has a cause of action against the insured, or where the insured would be liable but for immunity personal to him. The statute does not give plaintiff any more rights than she has under the law of Mississippi. It only furnishes her with a method to enforce in Louisiana whatever rights she has in Mississippi. Since she has no cause of action under the law of Mississippi, necessarily Act 55 of 1930 confers upon her no cause of action in Louisiana. The mere fact that under the statute plaintiff was able to obtain jurisdiction against her husband’s liability insurer in a direct action in this State does not create, as against her husband, or as against his insurer, a substantive cause of action that does not exist under the law of the State where the wrongful act occurred.” In Vowell v. Manufacturers Casualty Insurance Company, 229 La. 798, 86 So.2d 909, 914, the court stated that the direct action statute “is purely remedial and does not affect substantial rights under the insurance contract nor impair its obligations.” In the Home Insurance Co. v. Highway Insurance Underwriters, 222 La. 540, 62 So.2d 828, the court held the direct action to be remedial because it avoids the necessity for recovery from an insured and then subsequently from an insurer, and it spoke of the act as being “remedial enlargements and remedies of procedure to better insure recovery for an injured person”.

Courts of other jurisdictions have held the Louisiana direct action statute to be procedural. See McArthur v. Maryland Casualty Co., 184 Miss. 663, 186 So. 305, 120 A.L.R. 846; Cook v. State Farm Mutual Insurance Company, 241 Miss. 371, 128 So.2d 363; Goodin v. Gulf Coast Oil Company, 241 Miss. 862, 133 So.2d 623; Penny v. Powell, 162 Tex. 497, 347 S.W.2d 601; and Pearson v. Globe Indemnity Company, 5 Cir., 311 F.2d 517.

The only basis for any different view concerning the Louisiana statute is West v. Monroe Bakery, 217 La. 189, 46 So.2d 122. In that case the insurer was sued in Louisiana for an injury occurring in Louisiana, and the insurer claimed it was released from its liability under the terms of its policy of insurance because the insured had failed to comply with the cooperation clause. The court said this: “An analysis of our jurisprudence considered by the Appellate Court [which had sustained the contention of the insurer] in reaching its conclusion discloses that with two exceptions Act 55 of 1930 has been treated consistently as conferring substantive rights on third parties to contracts of public liability insurance, which become vested at the moment of the accident in which they are injured,” subject only to such defenses as the tort-feasor himself may legally interpose. The two cases referred to, Howard v. Rowan, La.App., 154 So. 382, and State Farm Mut. Automobile Ins. Co. v. Grimmer, D.C., 47 F.Supp. 458, held that under the facts of each case the failure of the insured to notify the insurer of the accident, as was required by the terms of the policy, relieved the insurer from liability on its contract. When we read the West case, we conclude that it dealt only with the question of whether the failure of the insured to give reasonable notice to his insurer resulted in the injured person being denied the right granted by the direct action statute to enforce directly his cause of action for his injuries against the insurer. The court held in the West case that it would be contrary to the public policy of that State as set forth in the direct action statute for the existence of that right to depend upon the actions of another. While the opinion referred to “substantive rights,” we agree with the statement in Penny v. Powell, supra, that the “case did not involve a conflict of laws” issue, and we also agree with the conclusion in Morton v. Maryland Casualty Company, 1 A.D.2d 116, 148 N.Y. S.2d 524, that the vesting of the right to bring the action at the moment of the accident, as held in the West case, “was the vesting of a right to bring the action in the parishes named.” Whether the creating of an additional remedy to enforce an otherwise existing cause of action creates a right that has “vested,” or creates something which may in one sense be classified as “substantive” is a matter of the use of words. In any event, the fact remains that neither in the West case nor in any other Louisiana case have the Louisiana courts ruled that the direct action statute creates a separate cause of action against the insurer, as distinguished from a right to invoke the authorized procedure in Louisiana to enforce the cause of action which arose by reason of the tortious act of the insured. We note in the West case the court did not overrule the numerous previous cases which had expressly held that the direct action statute did not affect substantive rights but provided only a procedure to enforce an existing cause of action. In fact, these cases were not mentioned. Also, subsequent to the West case in Home Insurance Co. v. Highway Insurance Underwriters, supra, the Louisiana Supreme Court, without overruling, criticising or distinguishing the West case, expressly held that the direct action statute “is purely remedial.” In Vowell v. Manufacturers Casualty Insurance Company, supra, with no reference to the West case, the direct action statute was held to be “remedial enlargements and remedies of procedure.” See also, Churchman v. Ingram, La.App., 56 So.2d 297, at p. 306, which was subsequent to the West case, and in which the Court of Appeal said this: “The direct action provision of the Louisiana statute eliminates an unnecessary and superfluous burden by providing that the injured party may proceed directly against the insurer. Certainly this is purely a matter involving remedy or procedure.” In Futch v. Fidelity & Casualty Company, 246 La. 688, 166 So.2d 274, the Louisiana Supreme Court again held that the violation of the cooperation clause by the insured did not release the insurer from its liability, citing the West case, but it made no mention of the pronouncements in cases subsequent to the West case that the direct action statute was procedural.

Plaintiffs cite numerous cases, but rely principally, according to the statement in their brief, on two: Collins v. American Automobile Insurance Company of St. Louis, 2 Cir., 230 F.2d 416, and Oltarsh v. Aetna Insurance Company, 15 N.Y.2d 111, 256 N.Y.S.2d 577, 204 N.E.2d 622. It is interesting to note that the federal court which ruled the Collins case refused to follow the applicable New York law (see the comment as to this in Pearson v. Globe Indemnity Company, 5 Cir., 311 F.2d 517), and relied on a statement in Lumbermen’s Mutual Casualty Co. v. Elbert, 348 U.S. 48, 75 S.Ct. 151, 99 L.Ed. 59, that “The Louisiana courts have characterized the statute as creating a separate and distinct cause of action against the insurer which an injured party may elect in lien of his action against the tort feasor.” Cited in support of this statement, with which we disagree, is Jackson v. State Farm Mutual Automobile Ins. Co., 211 La. 19, 29 So.2d 177, which did not so hold, and the West case which we have previously discussed. We do not consider the Collins case to be persuasive authority that the Louisiana direct action statute is entitled to enforcement by the courts of Missouri.

The Oltarsh case construed the direct action statute of Puerto Rico and held it to be substantive and entitled to enforcement in New York. However, in doing so it distinguished the Puerto Rican statute from the Louisiana statute this way: “Unlike the Louisiana statute with which we were concerned in the Morton case * * *, the statute before us contains no built-in venue provision, no clause even remotely resembling the ‘localizing’ provision in the Louisiana statute, or any other language which could possibly be read as a limitation restricting to the courts of Puerto Rico the direct action it authorizes.” In this manner the Oltarsh case re-affirms the result of the Morton case, and in fact supports the conclusion we have reached.

We do not rule defendant’s contention that to enforce the Louisiana statute would be contrary to the public policy of this State, but by not doing so we do not discredit it. The position we have taken makes such ruling unnecessary.

We conclude that the direct action statute of Louisiana does not create a separate and distinct cause of action against the liability insurer which may be enforced in the courts of this State, but in accord with what we consider to constitute a proper construction of the language of the statute and the numerous pronouncements of the Louisiana courts, it provides a separate remedy available in that State alone to enforce the cause of action against the insurer which arose by reason of tortious conduct of the insured. For that reason the statute is what is termed procedural, as distinguished from substantive, and is not enforceable m the courts of this State.

The judgment is affirmed.

BARRETT, C, concurs.

PRITCHARD, C., not sitting.

PER CURIAM:

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

EAGER, P. J., FINCH and DONNELLY, JJ., and WOLFE, Special Judge, concur.

      . The parties have briefed this case upon the long accepted distinction between substantive and procedural law as establishing the basis for the proper choice of law. As in Toomes v. Continental Oil Company, Mo., 402 S.W.2d 321, we are not called upon to re-examine those concepts or examine new approaches made in some other jurisdictions.

      . In the Morton case it was stated that the Louisiana direct action statute was considered to be “substantive,” a classification with which we disagree, but that by its terms the action could be maintained only in the designated courts of Louisiana. In our opinion a statute conferring a right of action limited by its express terms in its application to the state of enactment is “procedural” within the concept of the conflict of laws doctrine.


text:
    STATE of Missouri, Respondent, v. Alfred PHASON, Appellant.
    No. 52042.
    Supreme Court of Missouri, Division No. 1.
    Oct. 10, 1966.

      David R. Spitznagel, St. Louis, for appellant.
    Norman H. Anderson, Atty. Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.
   HENLEY, Judge.

Defendant was charged by indictment with rape of a female child under the age of sixteen years (Section 559.260) and with ten prior felony convictions. Section 556.-280. A jury found him guilty, the trial judge determined that he had been convicted of prior felonies as charged, and he was sentenced by the court to imprisonment in the custody of the Department of Corrections for a term of twenty-five years.

Immediately after the jury returned its verdict and was discharged, the court assessed defendant’s punishment at imprisonment for fifty years. Thereafter, defendant timely filed his motion for new trial alleging, in substance, that the court erred: (1) In overruling his motion for judgment of acquittal at the close of the state’s opening statement; (2) In overruling defendant’s objections to leading questions propounded by state’s counsel to the prose-cutrix; and, (3) In overruling his motions for judgment of acquittal at the close of the state’s case and at the close of the whole case. Less than a week later defendant withdrew his motion for new trial, waived his right to appeal, and was sentenced, as stated, to imprisonment for twenty-five years. He was represented throughout the trial, from arraignment through these post-trial proceedings, by counsel appointed by the court.

Some nine months later, on March 14, 1966, he secured a special order from this court permitting him to file his notice of appeal out of time without payment of the docket fee, and he thereafter filed his notice of appeal in the trial court. Rule 28.07. Counsel appointed by the trial court pursuant to Rule 29.01(a) has briefed the case and presented oral argument to this court in defendant’s behalf, and subsequent to-oral argument has, with leave, filed a reply brief. We quote the five points relied on in his briefs: “1. Appellant was deprived effective assistance of counsel for his defense and the compulsory process of obtaining witnesses in his own behalf. 2. The Trial Court erred in refusing the motion for acquittal at the close of the State’s case, and again at the close of all evidence. Said evidence in light of the admitted facts in the record was insufficient to establish a prima facie case of statutory rape. 3. The Trial Court erred in granting allocution at the close of the trial, thereby denying defendant his right to file a motion for a new trial. 4. The Trial Court erred and abused its discretion in accepting the plea of guilty after conviction and sentencing, without allocution, in that it was not freely and voluntarily made. 5. The Trial Court erred in coercing the withdrawal of defendant’s Motion for a New Trial and the waiver of the Right of Appeal.”

We quote from the transcript the proceedings had on June 23, 1965, the day defendant filed a memorandum by which he withdrew his motion for new trial and waived right of appeal:

“ ‘Motion for new trial heretofore filed withdrawn and right to appeal waived.
/s/ F. G. Armstrong Attorney for Defendant.
/s/ Alfred Phason.’
FILED: June 23, 1965.
⅝ ⅝ ⅜ ⅜ ⅜ ‡

APPEARANCES:

Michael M. Flavin, Assistant Circuit Attorney, for plaintiff;
Fred G. Armstrong, Esq., for defendant; Defendant appeared in person.
THE COURT: You are Alfred Phason? A. Yes, sir.
THE COURT: All right, sir. Are you going to withdraw his former plea of not guilty and enter a plea of guilty, is that correct?
MR. ARMSTRONG: Yes, for the record, at this time, and in accordance with our conference in the chambers, the defendant withdraws his motion for a new trial and asks for sentencing at this time.
THE COURT: You waive the right to appeal?
MR. ARMSTRONG: Yes, and does waive his right to appeal.
THE COURT: Is there anything the defendant wants to say before sentence is imposed or any legal reason why sentence should not be pronounced, Mr. Phason ?
THE DEFENDANT: No.
THE COURT: In Cause number 942-N, at the direction of the jury, and with your prior convictions, the Court hereby finds you guilty. In accordance with the verdict of the finding of the jury, finding you guilty as charged, the Court hereby having found you had prior convictions of felonies, the Court commits you to the Department of Corrections for a period of twenty-five (25) years. I will allow him whatever jail time he has. Take charge of the prisoner.”

In this case we are faced with somewhat the same situation the court was faced with in State v. Johnson, Mo., 408 S.W.2d 24, also handed down this day, except that here a motion for new trial was filed and there is a contention in point five of defendant’s brief that withdrawal of his motion for new trial and waiver of his right to appeal was the result of coercion. Also, we consider his point four to be a contention that this withdrawal and waiver was not freely and voluntarily made.

A defendant has the right voluntarily to withdraw his motion for new trial and waive his right to appeal. See: State v. Harmon, Mo., 243 S.W.2d 326, 328[2], and cases there cited. Defendant asserts in his argument that immediately after the jury returned its verdict and before he filed his motion for new trial the court entered judgment imposing a sentence of fifty years’ imprisonment; that the sentence was reduced to twenty-five years after a conference in the judge’s chambers in which it was agreed that he would withdraw his motion for new trial and waive his right to appeal. From these bare circumstances he implies, and would have us infer, that a fifty-year sentence was held by the judge in one fist as a coercive club over his head while the other hand held out a promise of a twenty-five year sentence if he would withdraw his motion for new trial and waive his right to appeal. There is no doubt that the punishment assessed immediately after verdict was reduced and the motion withdrawn as a result of a conference between the court and counsel in the judge’s chambers, but this conference and result alone does not of itself support his implication nor warrant the inference he would have us draw. The transcript shows that both he and his attorney signed the memorandum withdrawing his motion and waiving right to appeal, and that he reaffirmed this decision when he appeared with his attorney for allocution and formal sentencing. He has been accorded his right to appeal notwithstanding his waiver. The record does not support, nor do the naked conclusionary assertions of his points and arguments support, his contentions that he was coerced and did not freely and voluntarily withdraw his motion for new trial.

The order made by the court fixing or assessing defendant’s punishment immediately after the jury returned its verdict was not an “irregular judgment and sentence” which could not be reduced, as argued by defendant; nor was it a judgment and sentence denying defendant his rights, as contended in point three of his brief; it was, as the record shows, an order entered by the court in the exercise of its function of assessing the punishment of a defendant tried under the Habitual Criminal Act. Section 556.280; State v. Jaeger, Mo., 394 S.W.2d 347, 352-354[8-14]; State v. Brewer, Mo., 338 S.W.2d 863, 867[5].

Defendant contends in argument of the first point of his brief that he was denied effective assistance of counsel in that (1) counsel failed to correspond with him from the time of his appointment until trial day, (2) that counsel was “unlearned” in law and “unprepared” to try the case, and (3) defendant was unable to secure additional time within which to secure the presence of all his witnesses. The record does not support his contention. Assuming that it is true that counsel failed to correspond with him, we note that he fails to say how this affected the effectiveness of his counsel. The point is trivial. The record does not show that he requested and was denied a continuance to secure the attendance of witnesses, or that process for the compulsory and immediate attendance of witnesses was requested and denied him. We conclude from an examination of the transcript that defendant’s counsel conscientiously and diligently protected his rights throughout the trial.

The second point of defendant’s brief was assigned as error in his motion for new trial, but the motion was effectively withdrawn. No request is made that we consider this point as plain error affecting substantial rights under Rule 27.20(c), nor is any effort made to show “ * * * that manifest injustice or miscarriage of justice has resulted therefrom.” This claim of error is one we have always required to be raised in a motion for new trial to be preserved for appellate review and is not a matter required to be considered on the record before us by Rule 28.02. See State v. Johnson, supra, and cases there cited. However, we state, ex gratia, that the evidence was sufficient to make a case for the jury, and that the court, therefore, did not err in overruling defendant’s motions for judgment of acquittal.

Examination of the record as required by Rule 28.02 discloses no error.

The judgment is affirmed.

All concur.

      . References to statutes are to RSMo 1959 and V.A.M.S.

      . References to rules are to Rules of the Supreme Court of Missouri and V.A.M.R.