author: STORCKMAN, Presiding Judge.

text:
    STATE of Missouri, Respondent, v. Dave ROSS, Appellant.
    No. 49748.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.
    Motion for Rehearing or for Transfer to Court En Bane Denied Oct. 14, 1963.

      Lee D. Seelig, Kansas City, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Dale Reesman, Sp. Asst. Atty. Gen., Boonville, for respondent.
   STORCKMAN, Presiding Judge.

The defendant Dave Ross, charged with second-degree murder, was found guilty of manslaughter and his punishment was assessed at imprisonment for a term of ten years. His motion for new trial was overruled and he was sentenced in accordance with the verdict.

The defendant was represented in the trial court as well as here by counsel of his own choice. He raises two principal issues on appeal. First he contends that the court erred in refusing to sustain his motion for a judgment of acquittal because the state failed to prove either a criminal act or the criminal agency of the defendant. The other complaint is that the trial court committed prejudicial error in requiring a witness to testify in violation of her claim of self-incrimination and in ordering her to be taken into custody for refusal to testify.

Circumstantial evidence is sufficient to support a conviction of homicide. State v. Meidle, Mo., 202 S.W.2d 79, 81 [2], In determining the sufficiency of the evidence to make a submissible case, it must be viewed in the light most favorable to the state. State v. Davis, Mo., 367 S.W.2d 517, 519[2].

On March 5, 1962, an automobile ran against a drug store at 35th and Woodland in Kansas City, Missouri, breaking the front window; Clifton Fuquay staggered into the store, fell to the floor, and died almost immediately. An autopsy revealed that he had been shot. A .22 caliber bullet found lodged between the second and third cervical vertebra was the cause of his death. The bullet entered on the right side of his neck below the jawbone about three inches from the ear and “ranged up in and back”. No gun was found on his person, in his automobile, or in the vicinity of the casualty. Under the evidence the jury could reasonably find that the death of Clifton Fuquay was the result of a criminal act. State v. Meidle, Mo., 202 S.W.2d 79, 81 [5]; State v. Campbell, 301 Mo. 618, 257 S.W. 131, 132[1]; State v. Hall, Mo., 231 S.W. 1001, 1004[9].

The criminal agency of the defendant was also sufficiently proved. For about six months prior to the episode in question, the defendant, aged 27, and Mrs. Sharon Gunter, also known as Sharon Pollard, aged 24, had been living together at 2623 Bales in Kansas City although they were not married to each other. During the evening of March 4, 1962, the defendant and Mrs. Gunter were together in a cafe known as the Cubby Hole on Prospect, just south of 27th Street. While the defendant was out of the cafe for a short time, another colored man, later identified as Clifton Fuquay, talked to Mrs. Gunter and made an engagement to see her about an hour later at 2623 Bales. The defendant had seen them talking and when he returned Mrs. Gunter told him of the incident. Shortly thereafter the defendant and Mrs. Gunter went to the Bales address. When Fuquay arrived the defendant went into the kitchen; Mrs. Gunter answered the door and let the caller in. Fuquay inquired if they were alone and when he learned the defendant was in the apartment, he declined to complete his mission. Mrs. Gunter then gave Fuquay her grandmother’s telephone number so they “could get together some other time” and Fuquay left. The next morning as the defendant was leaving the house to seek employment driving a taxi cab, Fuquay drove by, picked up the defendant, and took him to work. Shortly thereafter Fuquay returned to 2623 Bales. Mrs. Gunter was still in bed and when she did not respond to his knocking, Fuquay broke in the front door. He offered her money but she was frightened by his conduct, and when she asked him to leave he slapped her, called her “a white bitch”, tore her robe, and forced her to have intercourse with him. The defendant returned a few minutes after Fuquay left and Mrs. Gunter told him what had happened excepting the act of intercourse. Shortly before noon Mrs. Gunter went to her grandmother’s home and the defendant went to the Cubby Hole.

At about 7:30 that evening the defendant saw Fuquay sitting in his parked car near the home of Mrs. Gunter’s grandmother; he told Fuquay he wanted to talk to him. The defendant got into the automobile with Fuquay and while they were riding about an altercation occurred which resulted in Fuquay being shot. The defendant jumped from the moving car before it crashed into the front of the drug store where Fuquay died. According to the state’s evidence, the defendant denied knowing anything about Fuquay or the manner of his death when he was arrested on April 12, 1962, more than a month after the happening. The police officers then confronted the defendant with Mrs. Gunter who had made a statement to the police, after which the defendant talked to the police officers about the killing of Fuquay but did not give them a written statement. In substance the defendant told the police officers that when he got in Fuquay’s car he had in his belt a .22 caliber gun belonging to his brother Melvin; that during the talk about Mrs. Gunter the defendant reached for his gun, Fuquay slapped at him, and when the defendant pulled his gun Fuquay grabbed his arm, the gun went off, Fuquay fell back against the seat, and the defendant jumped from the car. The defendant’s brother Melvin testified that his .22 caliber revolver was missing and that the defendant told him that he had taken the gun from Melvin’s dresser drawer two or three weeks before the shooting. The defendant admitted that later in the night of March 5, 1962, in the company of his brother Lonnie, Mrs. Gunter, and Wanda Teagarden, he disposed of the weapon which fired the shot that killed Fuquay by throwing it into the Blue River from the bridge on Highway 40. He testified, however, that he had no gun when he got into Fuquay’s car; that he tried to get Fuquay to apologize to Mrs. Gunter for what he had done; that while they were fighting in the car, Fuquay pulled a gun which he held in his right hand; that the defendant grabbed Fuquay’s right arm and hand, turned the gun toward Fuquay, and the gun was discharged; that the defendant picked up the gun and jumped from the moving car before it crashed into the drug store. The state’s version of the shooting was amply corroborated. The evidence was clearly sufficient to prove the defendant’s criminal agency.

We have examined the cases cited by the defendant and find them to be entirely consistent with the conclusions we have reached with respect to the first point on this appeal. The defendant is mistaken in his contention that the only evidence of what happened at the time of the shooting was his testimony and that it tends to prove the shooting was accidental. It was for the jury to believe or disbelieve the defendant’s evidence tending to exculpate him. State v. Tourville, Mo., 295 S.W.2d 1, 5[4]. The trial court did not err in refusing to direct a verdict of acquittal.

The defendant’s final contention is that the court erred in failing to sustain the defendant’s motion for a mistrial when Mrs. Sharon Gunter, on the stand as a state’s witness, refused to answer certain questions on the ground of self-incrimination, and the court in the presence of the jury directed the sheriff to arrest the witness and stated in a loud voice, “This is not the grand jury.” The statement of the point further asserts that the action of the court was particularly prejudicial “considering the sordid relationship of this witness and the defendant, without according the witness the right to have the court interrogate her to ascertain what answers were incriminating.”

Mrs. Sharon Gunter was the second of ten witnesses called by the state. She testified that the defendant was her “boy friend” with whom she was living on March 5, 1962. When asked if she was acquainted with one Clifton Fuquay, she refused to answer the question on the ground that it would tend to incriminate her. Thereupon the court told her, “You will answer that question, this is not the grand jury.” When the witness persisted in her refusal, the court ordered the jury taken from the courtroom and there was further interrogation of the witness out of the presence of the jury. The state was given leave to examine her further as a hostile witness and her interrogation was continued in the presence of the jury. She again refused to say if she was acquainted with Clifton Fuquay. In response to other questions, she stated that she had made a full and complete statement to the police officers on April 12, 1962. This written statement was admitted in evidence over an objection limited to the competency of paragraph 2 concerning the occurrence in the cafe on the evening of March 4. The statement covering six pages of the transcript is quite detailed and is consistent with other evidence of the state including the later testimony of Mrs. Gunter. Thereafter, the witness was questioned further by the prosecuting attorney. She answered some questions and declined to answer others. Defense counsel then cross-examined Mrs. Gunter and she responded to all of his questions. At the conclusion of the cross-examination, the following occurred:

“THE COURT: Just a moment. Sheriff, don’t leave, please. Take this witness to jail in contempt of this court. Leave her there until I call for her.
“MR. SEELIG: Just a minute.
“THE COURT: Take the witness, Sheriff, up to jail, she is in contempt of this court.
“MR. SEELIG: I am going to object to that being done in the presence of the jury, it inflames and prejudices the jury to cite a witness for contempt in the presence of the jury by the remarks of his Honor, I move this jury be discharged.
“THE COURT: Overruled. Go ahead, Sheriff.”

At 1:30 on the following day Mrs. Gunter appeared with her attorney and advised the court that she wished to testify and purge herself of contempt. The jury was then called and Mrs. Gunter responded to all questions propounded both on direct and cross-examination. There was no further reference to the previous incident and, among other instructions, the jury was given the usual one that they were the sole judges of the credibility of the witnesses and the weight and value to be given their testimony.

The appellant’s brief in this regard deals with the right of a witness to refuse to testify on the ground that his answers might incriminate him, citing such cases as Presta v. Owsley, Mo.App., 345 S.W.2d 649; Ex parte Arvin, 232 Mo.App. 796, 112 S.W.2d 113, and State ex rel. North v. Kirtley, Mo., 327 S.W.2d 166. The respondent’s brief properly pointed out that a witness’s claim of privilege against self-incrimination was personal to him, and even though the court failed to grant the witness his constitutional immunity, the defendant has no ground for complaint unless his own rights were violated. State v. Shepard, 334 Mo. 423, 67 S.W.2d 91, 95[8]; State v. Foster, Mo., 349 S.W.2d 922, 924[6].

In his reply brief the defendant cites State v. O’Connor, 105 Mo. 121, 16 S.W. 510, and State v. Bresse, 326 Mo. 885, 33 S.W.2d 919. In the O’Connor case the trial court ordered the prosecuting witness taken into custody on a charge of perjury before the defendant had an opportunity to cross-examine him and instructed the jury to wholly disregard the witness’s testimony and the court’s action in committing him. The supreme court held that the trial court had no right to withdraw the testimony from the consideration of the jury and to determine that the witness was unworthy of belief, thereby invading the jury’s province and further that it was error to deprive the defendant his right of cross-examination. In Bresse it was also held that striking the testimony of a state’s witness and the refusal to permit cross-examination was error. The narrower question here involved is whether the conduct and remarks of the trial judge were prejudicially erroneous and deprived the defendant of a fair and impartial trial.

The conduct and comments of a trial judge during the examination of witnesses in a criminal case do not constitute grounds for a new trial unless such conduct and remarks are of such a nature as would reasonably tend to prejudice the minds of the jury against the defendant and thereby deny him a fair and impartial trial. State v. Brotherton, Mo., 266 S.W.2d 712, 717[7]; State v. Moore, Mo., 303 S.W.2d 60, 67[6].

A trial court may punish for contempt of court if necessary, even in the presence of the jury. State v. Montgomery, Mo., 223 S.W.2d 463, 469[18]. Not every utterance of doubtful propriety made by the court during the course of the trial results in prejudice, and whether the defendant’s rights were violated must be determined from the whole record. State v. Hyde, 234 Mo. 200, 136 S.W. 316, 332.

It must be conceded that the trial court’s handling of the contumacious witness was inept and not to be recommended. The same effect could have been achieved without risking the injection of prejudicial error. Nevertheless we are convinced on the whole record that the incident did not deprive the defendant of a fair trial. On behalf of the state, Lonnie and Melvin Ross, brothers of the defendant, testified as to the ownership of the gun and the defendant’s throwing it into the river after the crime had been committed. Wanda Teagarden, a friend of Sharon Gunter, also testified with respect to the defendant’s conduct following the shooting. Several police officers testified with respect to damaging admissions made by the defendant following his arrest on April 12. It is apparent that Mrs. Gunter’s refusal reflected on her alone. It further appears from the record that Mrs. Gunter’s subsequent testimony, consistent with her statement to the police, erased any unfavorable effect her prior refusal to testify might have had on the jury. The defendant testified in his own behalf and was permitted to present fully his own case as well as to cross-examine all of the state’s witnesses. The defendant was not prejudiced by the action of the court and was not deprived of a fair trial. State v. Montgomery, Mo., 223 S.W.2d 463, 469[19]; State v. Moore, Mo., 303 S.W.2d 60, 67-68[7-9]; Woodring v. United States, 8 Cir., 311 F.2d 417, 420 [1-3]. A quite similar incident was held not to be error justifying the grant of a new trial in State v. Sheffield, 55 N.M. 150, 228 P.2d 431. The trial court did not err in refusing to grant the defendant’s motion for a mistrial.

We have considered all of the specifications of error presented on appeal and find them to be without merit. The defendant was present throughout the trial including his allocution and sentencing. We have also examined the parts of the record and entries designated in S.Ct. Rules 28.02 and 28.08, V.A.M.R., and find them to be proper in form and free from error. Accordingly the judgment is affirmed.

All of the Judges concur.


source: Caselaw Access Project

author: HOLMAN, Judge.

license: Public Domain

text:
    James ALEXOPOULOS, (Plaintiff) Appellant, v. Vernon Ralph SIMMONS, (Defendant) Respondent.
    No. 49961.
    Supreme Court of Missouri, Division No. 1.
    Oct. 14, 1963.

      Gene A. DeLeve, and Casemore, Berman & DeLeve, Kansas City, for plaintiff-appellant.
    Richard H. Heilbron, and Heilbron & Powell, Kansas City, for respondent.
   HOLMAN, Judge.

Plaintiff in this action sought to recover "damages in the sum of $20,450 for personal injuries and property damage resulting from 'a collision between his car and one driven by defendant. The trial resulted in a verdict for defendant. Plaintiff has appealed and here contends that the trial court erred !in giving Instructions 6, 7, 9, 10 and 11 at the request of defendant. We have appellate 'jurisdiction because the amount in dispute exceeds the sum of $15,000. Art. V, § 3, Constitution of Missouri, V.A.M.S.; § 477.-040 RSMo 1959, V.A.M.S.

The collision here involved occurred on August 25, 1960, at about 8:30 p. m. on north-south Hillcrest Road in Kansas City, Missouri, at a point near the entrance to 'the grounds of Hillcrest Country Club. A ■light rain was falling at the time and the road, which was paved with asphalt, was wet ' and slick. The speed limit at that place was '35 miles per hour. Plaintiff testified that on the evening in question he was driving his Mercury automobile south on Hillcrest Road •at a speed of between 25 and 30 m.p.h. and after passing the entrance to Memorial Park Cemetery, and at a point where the road curves to the right, he saw the headlights of ‘ an approaching car which appeared to be in its proper (northbound) lane; that his (plaintiff’s) car was about two feet west of the center of Hillcrest Road at that time; that the next thing he remembered was .when he awakened in an ambulance; that he again lost consciousness and thereafter “woke up” in the emergency room at General Hospital; that a cut over his left eye was sutured and bandaged and he was released from the hospital later that evening. There was evidence to indicate that plaintiff had suffered a concussion which caused retrograde amnesia so that he could not recall, after his injury, what had occurred during a period of time prior thereto. There was á great deal of testimony at the trial concerning plaintiff’s injuries, but those facts need not be related as they are not relevant to the issues raised upon this appeal.

During the hour preceding the collision defendant, then 20 years of age, and three other young people, Jack Cordsen, Joan Worrell, and Mary McQueen had had dinner at the Hillcrest Country Club. They left the club about 8:20 p. m. with the intention of attending a movie in Kansas City. Jack Cordsen testified that the car was owned by his father but was being driven by defendant; that as their car was being driven northwardly at a speed of between 20 and 25 m.p.h., he saw a car approaching which was “fishtailing,” i. e., the back end thereof was skidding from side to side, and it was being driven on the east side of the road; that defendant then applied the brakes and their car turned around in the road so that the rear end thereof was sliding forward; that there was a forceful collision between the rear of their car and the left front part of plaintiff’s automobile. This witness expressed the opinion that plaintiff’s car was being driven at a rate of 50 m.p.h. when he first saw it. He also stated that after the collision their car came to rest with six inches thereof west of the center line.

Defendant testified that the Cadillac he was driving was equipped with power brakes and power steering, and that he had had no experience in driving a car with power brakes and very little experience with power steering; that when he first saw plaintiff’s car it was in the middle of the road and he immediately applied the brakes and attempted to turn his car to the right in an effort to get onto the shoulder; that the car slid around clockwise 180 degrees so that the front of his car was facing south.

Plaintiff read from the deposition of defendant as an admission against interest an answer to the effect that at the time of the collision “two feet” of his car “was on the left or west side of the roadway.”

Plaintiff’s case was submitted upon the hypothesis that defendant applied the brakes of the Cadillac suddenly and forcibly and caused it to spin around and cross the center line of Hillcrest Road onto the left or south lane thereof, and to come into collision with plaintiff’s automobile, etc.

The defendant requested and the court gave an instruction submitting plaintiff’s contributory negligence in driving at a dangerous and excessive rate of speed under the conditions, and in operating his automobile to the left of the center of the roadway.

We have concluded that the judgment must be reversed and the cause remanded for a new trial because of prejudicial error in the giving of Instruction No. 7, which reads as follows: “The court instructs the jury that the burden is upon the plaintiff to prove by the greater weight or the preponderance of the credible evidence in this case the facts necessary to a verdict in his favor under the instructions given to you by the court, and unless he has done so your verdict will be for the defendant.”

Plaintiff correctly contends that said instruction imposed upon plaintiff the burden of proving that he was not guilty of contributory negligence. It is elementary that contributory negligence is an affirmative defense and the burden of proving same is on the defendant. Before plaintiff was entitled to “a verdict in his favor under the instructions given” the jury was required to find that defendant was guilty of negligence, in the respects submitted, which was the proximate cause of his injuries, and that plaintiff was not guilty of negligence, in the respects submitted, which contributed to cause the collision. The instruction under consideration placed the burden upon plaintiff to prove “the facts necessary to a verdict in his favor under the instructions given.” That clearly included proof of facts showing that plaintiff was free from contributory negligence. In this connection we observe that no instruction was given which told the jury that the burden was on the defendant to prove that plaintiff was guilty of the submitted acts of contributory negligence.

In the case of Thompson v. Byers Transp. Co., 362 Mo. 42, 239 S.W.2d 498, 501, the burden of proof instruction informed the jury “that the burden of proof in this case rests upon the plaintiff to prove by a preponderance of the credible evidence in this case the facts which you have been told in other instructions are necessary to be found to entitle the plaintiff to recover.” Plaintiff’s verdict-directing instruction in Thompson required a finding that at and prior to the time of the collision plaintiff was exercising the highest degree of care. Also, an instruction was given, at defendant’s request, submitting plaintiff’s contributory negligence in a number of respects therein specified. After a consideration of the cases cited, the court concluded that the quoted portion of that instruction “placed the burden on plaintiff to establish he was exercising the highest degree of care at the time in question, and was, therefore, misdirection and constituted prejudicial error.”'

A part of the burden of proof instruction given in the case of Tappmeyer v. Ryckoff, Mo.App., 45 S.W.2d 890, 891, stated that “the burden of proof is on the plaintiff to-establish by the preponderance or greater weight of the evidence, the facts necessary to a verdict in her favor under these instructions.” Contributory negligence was alleged and submitted in that case. The instruction was held erroneous because it did not specify that the burden of proving contributory negligence was on the defendant.

Defendant has called our attention to the fact that in the instant case plaintiff’s verdict-directing instruction required a finding “that plaintiff was at all times in the exercise of the highest degree of care for his own safety.” (In that connection it should be noted that under the ruling in Moore v. Ready Mixed Concrete Co., Mo.Sup., 329 S.W.2d 14, plaintiff was required to negative contributory negligence in that instruction.) However, that submission in plaintiff’s instruction did not cure the error in Instruction 7, but, in our opinion, tended to accentuate it. We so held in Szuch v. Ni Sun Lines, 332 Mo. 469, 58 S.W.2d 471. In that case the burden of proof instruction read as follows: “The court instructs the jury that the burden of proof is on the plaintiff to establish by the preponderance or greater weight of the evidence, the facts necessary to a verdict in his favor under these instructions.” 58 S.W.2d 473. In holding the instruction prejudicially erroneous the court stated that “[wjhile instruction No. 1, given at plaintiff’s request, required the jury to find from the evidence as a condition of plaintiff’s recovery that his automobile was being driven and operated without any negligence on his part, it did not place the burden of proving plaintiff’s freedom from negligence upon him. Absent proof of such negligence the jury would find that plaintiff was not negligent. But instruction No. 6 told the jury that the burden of proof was ‘on the plaintiff to establish by the preponderance or greater weight of the evidence, the facts necessary to a verdict in his favor under these instructions.’ In the light of instruction No. 1, which was one of ‘these instructions,’ the jury might well conclude that this meant that the burden was on plaintiff to prove that his automobile was driven and operated without any negligence on his part, * *.” 58 S.W.2d l. c. 473.

In support of his contention that the instruction under consideration was not prej-udicially erroneous, defendant has cited Bleil v. Kansas City, Mo.Sup., 70 S.W.2d 913, Flint v. Loew’s St. Louis Realty & Amusement Corp., 344 Mo. 310, 126 S.W.2d 193, Sutton v. Fox Missouri Theatre Co., Mo.Sup., 356 S.W.2d 41, Byrd v. McGinnis, Mo.Sup., 299 S.W.2d 455, and Bowers v. Etherton, Mo.Sup., 216 S.W.2d 83. An examination of those cases disclose that the burden of proof instruction in each one contained language so different from the one under consideration that we must conclude that they do not support defendant’s contention herein.

Since the judgment must be reversed and the cause remanded for a new trial because of the error in giving Instruction No. 7, we deem it unnecessary to rule the contentions of error in regard to the other instructions heretofore mentioned. Counsel for defendant will have the opportunity to re-examine those instructions, and, if it is considered advisable to offer them at another trial, may make such corrections therein as may be considered necessary in view of the attack made thereon by plaintiff.

Reversed and remanded.

All concur.


author: BARRETT, Commissioner.

text:
    Lawrence Everett ROBB, Plaintiff-Appellant, v. Vonda Lou WALLACE and Cecil Wright, Defendants-Respondents.
    No. 49706.
    Supreme Court of Missouri, Division No. 2.
    Sept. 9, 1963.
    Motion for Rehearing or for Transfer to Court En Banc Denied Oct. 14, 1963.

      Moore, Pettit & Steinle, J. Hal Moore, Walter S. Pettit, Jr., Jack P. Steinle, Aurora, for appellant.
    Ransom A. Ellis, Jr., William A. R. Dalton, Walker, Daniel, Clampett, Rittershouse & Ellis, Springfield, for respondent Wallace.
    Karl W. Blanchard, Seiler, Blanchard & Van Fleet, Joplin, for respondent Wright.
   BARRETT, Commissioner.

Lawrence E. Robb instituted this action against Vonda Lou Wallace and Cecil Wright to recover $20,000 damages for personal injuries and $1,500 for injury to his automobile. Both defendants responded to the suit with answers in which they pleaded contributory negligence and Mrs. Wallace filed a counterclaim. At the close of the plaintiff Robb’s evidence the court directed verdicts in favor of both defendants on the ground that Robb was guilty of contributory negligence as a matter of law and a jury returned a verdict in favor of Mrs. Wallace on her counterclaim in the sum of $10,000. Robb has appealed from the ensuing judgment and urges that the court erred in directing verdicts, while the respondents contend that as a matter of law he was guilty of contributory negligence. And the respondent Wright contends that as to him Robb adduced no substantial evidence from which a jury could find negligence on his part. It is also urged that Robb did not make a submissible case of humanitarian negligence against the respondent Wallace, but if there was evidence to support findings of primary negligence against both respondents it is immaterial to this appeal whether he made a submissible humanitarian case against Mrs. Wallace. Meyer v. Beck, (Mo.App.) 368 S.W.2d 905.

Briefly, these are the circumstances with which this appeal is concerned: About 5 :45 on November 15, 1958, the plaintiff Robb was driving his 1955 Ford automobile east on U. S. Highway 166 near the Chesapeake community in Lawrence County. Robb testified that it was dark at the time, Mrs. Wallace said that it was light enough that her husband had just finished reading a newspaper. A World Almanac stated that on November 15 the sun set at “5:02 or earlier.” In any event, Robb was traveling east on his way to his home in Marshfield at a speed of 50 to 60 miles an hour, and unknown to him Mrs. Wallace was also driving east ahead of him on the highway in a 1949 two-door Pontiac sedan intending to turn left across the highway onto a gravel road north into Chesapeake. Her automobile was not equipped with mechanical “turn lights” and of necessity if she gave traffic signals it had to be by extended hand and arm. The gravel road into Chesapeake is immediately west of a bridge and for the distance of about 500 feet west Highway 166 is straight. Robb says that “as I rounded this curve coming into the bridge, just over as I straightened out from the curve there was a car (Wright’s traveling west) came off over the little rise east of the bridge, and I dimmed my lights, blinked my lights twice and these lights were coming on and blinding me some way; and as I got on up closer when he passed, all I could see was the reflections of this Wallace car taillights.” As to the lights from Wright’s westbound automobile Robb said, “They blinded me so as I didn’t see this car in front of me until he got past me.” At another point he testified that after he was blinded by the lights of Wright’s automobile he reduced his speed to 35 or 40 miles an hour, and in describing what he could and could not see said, “I couldn’t see anything beyond. I could still see my right lane, roadway, that I couldn’t see anything till this oncoming car’s bright lights passed.” As to his being blinded by the oncoming lights for the distance of 500 feet west of the bridge he said “It is approximately just a guess, I would judge I was back about that far.” He said that he was not completely blinded, “not to the extent but what I could see the right side of my road, I mean stay in my line until the car went around me.” At another point in his examination he testified that after he was blinded by the lights of Wright’s automobile he reduced his speed to 35 or 40 miles an hour, and in describing what he could and could not see said, “I couldn’t see anything beyond. I could still see my right lane, roadway, that I couldn’t see anything till this oncoming car’s bright lights passed.” Robb said that he was about 100 feet west of the bridge when Wright passed with his blinding lights and for the first time, about 80 feet ahead on the highway, he saw Mrs. Wallace’s 1949 Pontiac.

When he first saw the Pontiac he “didn’t know whether it was stalled or whether it was moving very slowly,” not over 5 miles an hour, and he testified that there were no lighted taillights on the Pontiac. He said that he was close enough to Mrs. Wallace’s Pontiac that he "pulled to the left to avoid hitting her in the back.” But after he was in the north traffic lane Mrs. Wallace “gradually pulled into my car” and his Ford went off the pavement into a creek bank on the north side of the highway and the Pontiac crashed into the bridge abutment on the right side. In describing the collision Robb said that he was “halfway around” the Pontiac when Mrs. Wallace suddenly and without warning turned left “on an angle across the centerline” into-the right rear of his automobile. Mrs. Wallace says that she was wearing a large-sleeved white coat and that she signalled a left turn with her arm straight out “until the moment I started to turn; I took my arm back in and took hold of the wheel.” She says that her front wheels were near the centerline but she was in the south half of the pavement, because she had not started the turn, when Robb ran into and “hit the rear part of our car.” Incidentally, photographs reveal that all the collision damage to Robb’s Ford is at the right rear door and fender and the damage to the Pontiac is all in the area of the left rear fender. Robb testified that he was not aware of the gravel road to the north and that the collision did not occur in its intersection with the highway but was about 20 feet from the “west edge of the crossroad.” And a highway patrolman, who received a call at 5:55 and arrived at the scene at 6:15, said that the debris from the collision was “near the west edge of the dirt road going north.” There were many other detailed facts and circumstances, some favorable and some unfavorable to the plaintiff, and there were several sharp conflicts in the evidence adduced by Robb and by Mrs. Wallace but the recited evidence, generally favorable to the plaintiff’s claims, is deemed sufficient for the purposes of this opinion and the disposition of this appeal.

Nor is it deemed necessary other than this mere recitation of the facts to further demonstrate that in these circumstances a jury could reasonably find both Wright and Mrs. Wallace guilty of one or more acts of primary negligence. As to the, respondent Wright it is sufficient to say. that one of the elemental hazards of night-; time driving is “the blinding effect produced by the headlights of approaching vehicles.” 22 A.L.R.2d 427, 429, annotating Judge Vandeventer’s opinion in Lemonds v. Holmes, (Mo.App.) 236 S.W.2d 56, 22 A.L.R.2d 418. It is pointed out in that annotation that there is a primary duty to dim or deflect dazzling headlights (7 Am.Jur.2d, Automobiles, Sec. 226, p. 776) and that upon conflicting evidence as to whether headlights have in fact been dimmed “whether such failure is a proximate cause of the collision has generally been held to present a question for the trier of fact.” 22 A.L.R.2d l. c. 430, and see Browne v. Creek, 357 Mo. 576, 582-583, 209 S.W.2d 900, 904. Likewise as to the evidence and the record with respect to the conduct of Mrs. Wallace, “Certainly the defendant had violated the rules of the road and was negligent in operating the pickup without lights and turning it to the left and across the highway without signalling. * * * Whether, if plaintiff’s driver had sounded his horn, the warning would have been heard by the defendant; and whether the pickup was then in a position on the highway that the defendant could change the course thereof in time to avoid the collision, are such facts, in our opinion, as to require the submission of the issue of proximate cause to the jury.” Hill v. Torrey, (Mo.App.) 320 S.W.2d 594, 597, a case cited by the respondent Wright. See also in this connection 21 A.L.R.2d 7, 44; Hamilton v. Patton Creamery Co., 359 Mo. 526, 222 S.W.2d 713; Highfill v. Brown, (Mo.) 320 S.W.2d 493, and Nickels v. Borgmeyer, (Mo.App.) 258 S.W.2d 267, 276.

Both respondents contend, however, that Robb was guilty of contributory negligence as a matter of law and that therefore the court properly directed verdicts against him. It is difficult to understand just how the respondent Wright is personally concerned with some of these claims but he urges that Robb was guilty of contributory negligence as a matter of law in that (1) in violation of the statute, V.A.M.S. Sec. 304.-016, subd. 1(1), he failed to sound his horn in attempting to pass Mrs. Wallace’s Pontiac, and (2) because he did not have his automobile “under such control as to be able to stop within the assured clear distance ahead.” Somewhat in this connection the respondent Wallace says that Robb admittedly drove the distance of 368.5 feet while blinded and was therefore contribu-torily negligent as a matter of law. And then both respondents urge that he was guilty of contributory negligence as a matter of law in that in violation of the statute, V.A.M.S. Sec. 304.016, subd. 4(2) he turned into the left lane of traffic and attempted to pass Mrs. Wallace when his own automobile was less than 100 feet from the intersecting gravel road.

Bearing on one or more of these questions and contrary to the respondents’ claim, is the fact that in these circumstances, from Robb’s viewpoint, a jury could reasonably find that he was suddenly confronted with an emergency situation, one not caused or contributed to by his negligent conduct. Of course sudden emergency is not a defense and does not exculpate, but it is a factor to be considered in passing on Robb’s conduct and whether in the immediate circumstances he was guilty of contributory negligence. Rohde v. St. Louis Public Service Co., (Mo.) 249 S.W.2d 417, 420. Particularly in these circumstances, whether he could have effectively sounded his horn was a matter for the jury’s determination. Myers v. Karchmer, (Mo.) 313 S.W.2d 697. As the court said of failure to sound the horn in Hill v. Torrey, 320 S.W.2d l. c. 596, “But these cases and many others hold that the mere violation of a traffic statute does not, in itself, require a finding of negligence as a matter of law.”

It was not a conclusively established fact that Robb traveled 368.5 feet “blinded” (for a definition see Powell v. Schofield, 223 Mo.App. 1041, 1047, 15 S.W.2d 876, 878), all the speeds and distances were estimates, a “guess” Robb once said, and “A party is not conclusively bound by his estimates of time, speed or distance.” Highfill v. Brown, (Mo.) 340 S.W.2d 656 l. c. 663. In any event there is a summary of the subject of driving blinded, together with a list of Missouri cases, in 22 A.L.R.2d l. c. 310: “Finding the rule requiring a driver blinded by lights to stop or proceed at his peril impracticable under modern traffic conditions, a number of courts have repudiated or refused to adopt it, applying instead the more flexible standard of ordinary care under the circumstances, (the highest degree of care in Missouri) and holding that a motorist who continues on his course when his vision is interfered with by other lights cannot be held guilty of negligence as a matter of law.” One of the cases cited by a respondent, Trantham v. Gillioz, (Mo.App.) 348 S.W.2d 737, rather plainly pointed out that this jurisdiction has not wholly accepted the stopping “within the assured clear distance” rule. On the contrary, “one is not necessarily contribu-torily negligent as a' matter of law solely because he drives at a speed which prevents his stopping within the distance his headlights reveal objects ahead of him; and that whether he is contributorily negligent as a matter of law depends upon all the circumstances in a particular case.” Johnson v. Lee Way Motor Freight, (Mo.) 261 S.W.2d 95, 98. In short, here as in the Johnson case, whether Robb was guilty of contributory negligence in proceeding in the face of dazzling lights was for the jury. Certainly in these circumstances his contributory negligence should not have been declared as a matter of law. Snyder v. Murray, 223 Mo.App. 671, 676, 17 S.W.2d 639, 642; Powell v. Schofield, supra; 8 Am.Jur.2d, Automobiles, Secs. 724-725, pp. 276-279.

The remaining claim is that Robb was contributorily negligent as a matter of law because in violation of the statute, Sec. 304.016, he was attempting to pass Mrs. Wallace within 100 feet of the intersecting gravel road. In large measure the argument is based upon his supposed “constructive knowledge” of the road. He testified that on the occasion of the collision he was not aware of the existence of the road or of the fact that he was approaching it. But, since he had visited in Mt. Vernon on several occasions he had of course in traveling Highway 166 passed the intersecting gravel road at least “a dozen” times. It is not necessary to consider in these circumstances the subject of “constructive knowledge,” it is sufficient to say that the circumstances are certainly not comparable to Purdy v. Moore (Mo.App.) 224 S.W.2d 838, in which the facts are set forth in this language: “Plaintiff seeks to excuse himself on two grounds, first, that although he was familiar with Highway M and this was his sixth round trip over it that day, he did not know that the crossroad he was approaching extended south of Highway M * * (Emphasis supplied.) It is not necessary here to further distinguish this and other cases or to illustrate upon the circumstances, it may be summarily said “that the passing of another vehicle at an intersection is not contributory negligence as a matter of law •under any and all circumstances.” Kraft v. Armentrout, (Mo.App.) 275 S.W.2d 402, 404; McCauley v. Stone, (Mo.App.) 315 S.W.2d 476; Cockrill v. Buchanan, (Mo.App.) 259 S.W.2d 696; Hamilton v. Patton Creamery Co., supra. Or, sufficient for the purposes of this case is this excerpt from another annotation, “a mere showing that an applicable regulation prohibiting in-tersectional passing was violated did not prevent the trier of the fact from finding against the existence of negligence or contributory negligence.” Annotation 53 A.L.R.2d 850, 855, subject, “Construction, applicability, and effect of traffic regulation prohibiting vehicles from passing one another at street or highway intersection.”

As indicated, construing the evidence favorably to the plaintiff Robb, there was a submissible case on one or more grounds of primary negligence against both defendants Wallace and Wright and upon the reasons urged here he was not guilty of contributory negligence as a matter of law. Accordingly the judgments against Robb on his causes of action against both respondents are reversed and the judgment in favor of Mrs. Wallace on her counterclaim is reversed and the cause is remanded.

STOCKARD, C., concurs.

PER CURIAM.

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

All of the Judges concur.


text:
    David W. SHAPIRO, Frank J. Raskevice, Haig S. Nakashian, Edward J. Duggan, Plaintiffs-Appellants, v. TROPICANA LANES, INC., Tropicana Cocktail Lounge, Inc., Eighty Hundred Clayton Corporation, a Corporation, and Frank J. Lama, Defendants-Respondents, Louis Schreiber, J. Barney Moss, and Joseph Stulac, Defendants, Louis Schreiber and J. Barney Moss, Defendants-Appellants. WESTGATE ELECTRIC, INC., A Missouri Corporation, Plaintiff-Respondent, v. Frank M. CUMMINS, Defendant-Appellant.
    Nos. 49794, 49987.
    Supreme Court of Missouri, Division No. 1.
    Sept. 9, 1963.
    Motion for Rehearing or for Transfer to Court Bn Banc Denied in No. 49794 Oct. 14, 1963.

      Carroll J. Donohue, Myron Gollub, Husch, Eppenberger, Donohue, Elson & Jones, St. Louis, for plaintiffs-appellants Shapiro, Nakashian, Raskevice and Dugan and defendants-appellants Louis Schreiber and J. Barney Moss.
    Nolan J. Hepburn, Kansas City, for appellant Frank M. Cummins.
    Greensfelder, Hemker & Wiese, Forrest M. Hemker, Mark R. Gale, St. Louis, for defendants-respondents Tropicana Lanes, Inc., and others.
    John H. Kreamer, Laird P. Bowman, Kansas City, for respondent Westgate Electric, Inc.; Gage, Hodges, Moore, Park & Kreamer, Kansas City, of counsel.
   HENRY J. WESTHUES, Special Commissioner.

These cases involving the same questions of law were consolidated in this Court. Case No. 49794 was filed in the Circuit Court of the City of St. Louis and case No. 49987 was filed in the Circuit Court of Jackson County. Each case was filed under the Declaratory Judgment Act, Chapter S27, V.A.M.S.

The question for determination in each case was, and is, may articles of incorporation of a business corporation legally contain provisions for the issuance of two classes of common stock with regard to voting rights? Particularly, may such articles provide for one class of stock without voting rights and another with voting rights ? Further, is such a classification a violation of Article XI, Sec. 6, of the 1945 Constitution of Missouri, V.A.M.S.?

In each of the above-entitled cases, the trial court ruled that such a classification does not violate .the constitutional provisions or the public policy of this state. In each case, the stockholders owning nonvoting stock appealed to this Court.

In case No. 49794, the plaintiffs are holders of non-voting stock and the principal defendants are three corporations and Frank J. Lama. A number of owners of non-voting common stock were made defendants by order of the court. The three corporations own and operate a single business establishment consisting of a bowling alley, a restaurant, and a cocktail lounge. Tropicana Lanes, Inc., owns the bowling alley, Tropicana Cocktail Lounge, Inc., owns the restaurant, and the building is owned by Eighty Hundred Clayton Corporation. The details of the operations of these corporations need not be stated since they do not affect the ultimate question presented. Frank J. Lama owns the voting stock and plaintiffs and the appealing defendants own the non-voting stock.

In case No. 49987, the corporation itself filed the declaratory judgment action making a non-voting shareholder the defendant. The defendant-appellant, in his brief, made a statement of facts outlining the issues which we adopt, as follows:

“This action was brought by respondent for a declaratory judgment as to appellant’s right to vote Class A common shares issued by respondent and held by appellant. The action was brought following demands by appellant to be permitted to vote his shares in the election of directors of respondent. The Articles of Incorporation of respondent under which appellant’s Class A common shares were issued to him provide that the holders of Class A common shares shall have no right to vote for directors. Appellant contends that Article XI, Section 6 of the Missouri Constitution invalidates this voting restriction and guarantees him the right to vote for directors.

“The cause was submitted to the court below on a Stipulation of Facts and briefs. The provisions of respondent’s Articles of Incorporation containing the voting restrictions in issue are as follows:

“ ‘ARTICLE THREE
“ ‘The total authorized capital of the corporation shall be Thirty Thousand ($30,-000.00) Dollars divided into Three Thousand (3,000) shares of which One Thousand Five Hundred (1,500) shares shall be Class “A” common shares, having a par value of Ten ($10.00) Dollars each and One Thousand Five Hundred (1,500) shares shall be Class “B” common shares, having a par value of Ten ($10.00) Dollars each.
“ ‘The holders of Class “A” common shares shall not, except as otherwise specifically provided herein, have any voting rights as shareholders of the Corporation, nor shall they be entitled to notice of the meetings of the shareholders. All rights to vote and all voting power (including but not limited to the right to vote for directors), and all management and control of the Corporation, except as otherwise hereinafter specifically provided, are vested exclusively in the holders of Class “B” common shares.
“ ‘The holders of Class “A” common shares shall only have the right to vote on any amendment to the Articles of Incorporation of said corporation which would change the relative rights as fixed herein between Class “A” common shares and Class “B” common shares. The holders of said Class “A” common shares and Class “B” common shares shall each vote as a class.
“ ‘No holder of Class "A” common shares shall have any preemptive or preferential right of subscription to any Class “B” common shares, and no holder of Class “B” common shares shall have any preemptive or preferential right of subscription to any Class “A” common shares.’
“Respondent has 50 Class ‘B’ common shares issued and outstanding none of which are held by appellant and 20 Class ‘A’ common shares all of which are held by appellant. Appellant made timely demand upon respondent to be included in its list of shareholders entitled to vote at the annual meeting of shareholders of respondent held on January 21, 1963, but respondent failed to do so. Thereafter appellant appeared at that meeting and sought to vote his Class ‘A’ common shares in the election of directors but was denied such right. Following such demands by appellant, respondent filed this action for a declaratory judgment as to appellant’s voting rights. Appellant filed his answer admitting the factual allegations of the petition and praying that the court declare the voting restrictions upon his shares of stock void as contrary to Article XI, Section 6 of the Missouri Constitution. Following the entry of the Judgment and Decree herein, appellant timely filed his Motion for New Trial which was overruled and Notice of Appeal to this Court was thereafter filed.”

The articles of incorporation in each of the three corporations, defendants in case No. 49794, contained provisions for the issuance of non-voting common stock.

The precise question before us has apparently not been decided by an appellate court in this state. The attorneys for the parties have not found such a case and we have made a search with the same result. The cases cited in the briefs on the subject deal for the most part with the right to - issue non-voting preferred stock. In all of the briefs filed by the parties, the case of State ex rel. Frank v. Swanger, 190 Mo. 561, 89 S.W. 872, 2 L.R.A.,N.S., 121, is cited and all parties rely heavily thereon. This Court en Banc there held that a corporation may issue non-voting preferred stock; that such action did not violate our Missouri Constitution, nor was such against the public policy of this state. The constitutional provision involved was Article XII, Section 6 of the 1875 Constitution. Our 1945 Constitution contains a similar provision on this subject matter. See Article XI, Section 6. So far as applicable, the section reads:

“Section 6. In all elections for directors or managers of any corporation, each shareholder shall have the right to cast as many votes in the aggregate as shall equal the number of shares held by him, multiplied by the number of directors or managers to be elected, and may cast the whole number of votes, either in person or by proxy for one candidate, or distribute such votes among two or more candidates; and such directors or managers shall not be elected in any other manner; * *

Chapter 351, V.A.M.S., entitled “General and Business Corporations,” enacted in 1943, contains a section with substantially the same provisions. See Sec. 351.245, V.A.M.S.

The owners of non-voting shares of stock say that the constitutional provision, which reads in part, that “In all elections for directors or managers of any corporation, each shareholder shall have the right to cast as many votes,” is plain and unambiguous and not subject to interpretation. (Emphasis supplied.) In State ex rel. Frank v. Swanger, supra, this Court held that the section of the Constitution concerned cumulative voting by shareholders and permitted the whole number of shares of a stockholder to be cast for one or more candidates; further, that the constitutional provision had no reference to the contractual rights of stockholders as between themselves. Such an interpretation was necessary to sustain the ultimate conclusion reached to the effect that preferred shareholders could be legally deprived of voting rights. Otherwise, the opinion would not stand on a sound footing. The precise question before the court in that case concerned preferred stockholders. The court had much to say about the rights of holders of preferred stock to receive dividends even if the common stockholders did not. This fact was given as good reason for denial of voting rights to the preferred shareholders.

The holders of non-voting shares in the cases before us say that the court, in State ex rel. Frank v. Swanger, supra, based its decision on that theory; further, that the court held indirectly that the result would not have been the same had the dispute been between common stockholders. To this we cannot agree. The Constitution says “each shareholder” shall have the right to vote. Certainly, preferred shareholders are included in that provision. So, if the constitutional provision was intended to guarantee “each shareholder” a right to vote, then the holding in State ex rel. Frank v. Swanger, supra, is not sound. However, we are of the opinion that the result in that case is correct and based on-sound reasoning. The wording of the section of the Constitution indicates that the subject matter was cumulative voting. The plain purpose of the law was to protect minority stockholders and to give them a voice in the management of the corporation. We need not dwell at length on this subject matter. Much has been written thereon. We approve what was said in State ex rel. Frank v. Swanger, supra, and the following conclusion, as stated at page 876 of 89 S. W.: “Properly understood, we think section 6, of art. 12, of the Constitution (1875) means only that every stockholder entitled to vote at any corporate election is entitled to vote his share on the cumulative plan, but does not mean that the stockholders themselves in the organization of the company may not voluntarily agree that certain preferred stock shall be issued and that the holders thereof shall not have the right to vote.” (Emphasis supplied.)

We approve the above ruling without reservation. The court there was dealing with the rights of preferred shareholders. If the section of the Constitution concerns only the cumulative plan of voting and does not affect the rights of stockholders themselves to agree voluntarily that certain stock may be deprived of voting rights, then the opinion supports the theory that non-voting common stock may be issued wherein the articles of incorporation so provide.

In the brief filed by the non-voting shareholders, in case No. 49794, it is stated that “The corporation and its modes and attributes are not products of private contract. They are products of the State, defined by statute under constitutional authorization.” We do not agree. Business corporations are the product of private contract. Fletcher, On Corporations, Vol. 11, Sec. 5083, p. 42; 18 C.J.S. Corporations § 477, p. 1147, and cases there cited. Of course, such corporations are subject to the regulations prescribed by the Missouri Constitution and statutory law and such laws become a part of the charter of the corporation. Midland Truck Lines, Inc. v. Atwood, 362 Mo. 397, 241 S.W.2d 903. The articles of incorporation constitute a contract between the stockholders inter sese. 18 C.J.S. Corporations § 71, pp. 456, 457, Note 59.

We have found no constitutional nor statutory provision which directly or indirectly prohibits the forming of a corporation where the articles of incorporation provide for two classes of common stock, one class of non-voting stock, the other with voting rights. We are supported in the theory that such may be done by the history of the corporation laws of this state. This Court en Banc, in State ex rel. Frank v. Swanger, supra, held in no uncertain terms that the constitutional provisions in question had to do with cumulative plan of voting and not that the stockholders themselves in the organization of the company may not voluntarily agree that certain stock (in that case, preferred) shall be issued without voting rights. That decision was in the year 1905. With that case on our books, for forty years unchanged, the Constitution of 1945 was adopted with a similar provision therein. 16 C.J.S. Constitutional Law § 35, p. 114. Furthermore, it was stated in the stipulation of facts in case No. 49987 that approximately 550 domestic corporations in this state have articles of incorporation with provisions authorizing the issuance of voting and nonvoting common stock; that since 1923, such articles of incorporation have been approved by the Secretary of State.

In spite of this history, the present Chapter 351, V.A.M.S., was enacted in 1943 with no restrictions pertaining to the rights of forming corporations wherein the articles of incorporation provide for the issuance of non-voting common stock.

The non-voting shareholders urge that the voting shareholders have the control of the corporation and have thereby an undue advantage. They say, and it is admitted, that the price of the shares is the same. That fact does not alter the situation. If the parties forming the corporation agree among themselves that the articles of incorporation shall provide for non-voting and voting shares, who can complain? In our opinion it is purely a matter of contract and does not affect the public. In Clark and Marshall, Private Corporations, Vol. 3, Sec. 653, it is stated: “A stockholder has no right to vote at corporate meeting, whether the stock is common or preferred, if it is so stipulated when the stock is issued, for the stipulation is then a term of his contract.” The parties forming the corporation may have good reason for such action. It may be that it is desirable to keep control of the affairs of the corporation in the holders of voting shares. In some cases, non-voting common shares are more attractive than preferred. In a prosperous business, the dividends to common stockholders may be much greater than the dividends paid to the preferred shareholders. Be that as it may, we see no inhibition against the issuance of non-voting shares where such is authorized by the articles of incorporation. Purchasers of such stock know what they are buying and thereby are bound by the provisions of the articles of incorporation.

We have not cited many authorities in the course of the above opinion. However, in our research we have examined many of the cases and authorities cited in the briefs and others as well. We discovered cases and authorities on both sides of this question. We have carefully examined the case of State ex rel. Frank v. Swanger, supra, the constitutional provisions, and statutory law of this state pertaining to the subject matter before us. Our conclusion is that the trial court in each case now before us ruled correctly in holding that the issuance of non-voting stock is not contrary to any law of Missouri nor is such action against public pplicy.

Those wishing to pursue the subject matter further may find it interesting to examine and read the following authorities in addition to those mentioned supra: 17 Kansas City Law Review 66 (December 1948), reprinted for the most part as a cross reference to Article XI, Section 6, of the Missouri Constitution (1945), as well as to Sec. 351.245, V.A.M.S.; “Nonvoting Shares in Missouri,” by William Pittman, 26 Missouri Law Review 117 (1961); Fletcher, on Corporations, Vol. 11, Sec. 5301, p. 890; Cook On Corporations, 1923 Ed., Sec. 622b; People ex rel. Watseka Telephone Co. v. Emmerson, 302 Ill. 300, 134 N.E. 707, 21 A.L.R. 636, Annotations beginning at page 643; E. K. Buck Retail Stores v. Harkert, 157 Neb. 867, 62 N.W.2d 288, 45 A.L.R.2d 774.

It follows that the judgment of the trial court in each case, that is, No. 49794 and No. 49987, should be and it is hereby affirmed. It is so ordered.

All concur.


author: STOCKARD, Commissioner.

text:
    Edward J. SCHNUCK and Bernice A. Schnuck, Respondents, v. Lawrence A. KRIEGSHAUSER, Appellant, Grace M. Kriegshauser, Laura McCarthy, Inc. and Jane Sweeney, Defendants.
    No. 49411.
    Supreme Court of Missouri, Division No. 2.
    Oct. 14, 1963.

      Raymond F. McNally, Jr., Irene L. Dulin, St. Louis, for appellant.
    John D. Flynn, St. Louis, for Edward J. Schnuck and Bernice Schnuck, plaintiffs-respondents; Allen D. Churchill, St. Louis, of counsel.
   STOCKARD, Commissioner.

In plaintiffs’ action to recover damages for fraud the trial court directed a verdict in favor of defendants Laura McCarthy, Inc. and Mrs. Jane Sweeney. The jury returned a verdict in the amount of $21,-986.50 against defendants Lawrence A. Kriegshauser and Grace M. Kriegshauser. However, the trial court subsequently sustained a motion of Grace M. Kriegshauser for judgment in her favor in accord with her motion for a directed verdict. Final judgment in the amount of the verdict was entered only against Lawrence A. Kriegshauser who has appealed therefrom. We deem it advisable to state the facts in some detail.

In March 1958 Mr. and Mrs. Kriegs-hauser listed their house for sale with Laura McCarthy, Inc., a real estate broker for which Mrs. Jane Sweeney was saleswoman. The house, located at 18 Oak Park, Creve Coeur, St. Louis County, had been constructed in 1954. It was of one-story design with an attic, a basement-under part of the house, and what is referred to as a “crawl area” under the-remaining portion. Shortly thereafter Mr.. Edward J. Schnuck called Mrs. Sweeney and arranged to see the Kriegshauser-house. He and his wife made an inspection of the premises, and were “quite-impressed.” It was, Mr. Schnuck said,, “a beautiful home and beautifully furnished,” they were “taken with it” and it was. in “excellent shape.” At the time of this. visit Mr. Schnuck noticed a crack in the wall over the door leading from the reception room into the living room. The crack was 18 to 24 inches in length and wide enough that possibly it could have-held a toothpick. About three weeks later Mrs. Sweeney again took Mr. Schnuck through the house. The Kriegshausers. were not at home on either occasion. On. this second visit Mr. Schnuck asked Mrs. Sweeney “to find out what was causing-the crack and if it was caused by a foundation problem.” Mrs. Sweeney did ask Mr. Kriegshauser “about this crack,” and according to Mr. Schnuck she reported to him that Mr. Kriegshauser had said “that the crack was caused by green lumber in that portion of the wall,” and that he, Mr. Schnuck, “could call Mr. Dusard, the architect, if he wanted to ask any further questions.” Mr. Schnuck further stated that Mrs. Sweeney “may have said something about lumber shrinkage, but I don’t think that would have meant much because to me that’s synonymous with green lumber.” Mrs. Sweeney testified that Mr. Kriegshauser had told her that the crack was “caused by green lumber or a shrinkage of the lumber,” and that she told Mr. Schnuck “about it being green lumber or a shrinkage of lumber and that Mr. Kriegshauser had told me to have him contact a man by the name of Rime Dusard, who was the architect for them on the house.” Mr. Kriegshauser testified that he told Mrs. Sweeney that the crack “might be caused by shrinkage of lumber,” but that he did not say “green” lumber. Apparently Mr. Kriegshauser made no affirmative representation concerning the condition of the foundation of the house, and he made no affirmative representation that the crack did not result from a “foundation problem.” Mr. Schnuck did not contact Mr. Dusard, although he knew who he was, and did nothing further about investigating the cause of the crack. He testified that “as long as it wasn’t a foundation problem I wasn’t particularly worried about it.” A few days later he purchased the property for $69,000. The sale was completed on May 1, 1958, and it was agreed that the Krieg'shausers were to retain possession until May 28. On both of the inspections prior to the purchase, Mr. and Mrs. Schnuck had gone over the entire house, including the basement, and no part of the house was “off limits.”

About three months after the Kriegs-hausers moved out of the house, Mr. and Mrs. Schnuck discovered that a series of cracks were starting in the living room, the reception hall, the master bedroom, and the “powder” room. There was also a crack in the wall of the basement and a crack in the stone on the outside of the building. Mr. Schnuck then called Mr. Dusard. There is a dispute in the evidence as to the extent of the examination of the house then made by Mr. Dusard. In any event he made no repairs. In August or September of 1958 Mr. Schnuck contacted a firm of consulting engineers. An inspection of the house was made by Mr. Herrmann and Mr. Zurheide of that firm. They found some cracking in the foundation beneath the master bedroom, and indications of slight cracking along the south foundation walls. In the “crawl area” there was quite a large number of cracks in the foundation, and there were cracks in the walls in the living room and master bedroom. Mr. Herrmann was of the opinion that the cracks in the house were caused by a settling of the foundation in varying degrees, and that the cracks had started in the foundation and had progressed to the living room, “powder” room, and the master bedroom. He recommended that Mr. Schnuck “underpin” those portions of the house found to be settling, and this was done by the installation of fourteen piers under the walls of the house. In addition, steel ties were placed under the floor of the living room. On March 20, 1961, Mr. Herrmann made another inspection of the house, and he found cracks in the northern portion of the living room and in the “powder” room. He also saw some separation between the trim work and the floor in the northeast corner of the living room. It was his opinion that 17 additional piers would be needed to correct the condition.

Evidence concerning repairs made by Mr. Kriegshauser prior to the sale is of importance. The house was completed in 1954. In the spring of 1957 a hairline crack appeared in the partition wall between the reception room and the living room, and there was a crack in the living room ceiling across from the den on into the living room cornice. When these cracks became larger Mr. Kriegshauser ■called Mr. Dusard who in turn called in an engineer by the name of Brussell. They inspected the foundation walls and footings but found no failure there. They concluded that the cause of the cracks was the result of shrinkage or slight movement in the lumber in the interior partition ceiling joists of the building. In the ceiling joists they found what they referred to as a “crown” which is a condition found in dried “dimension” lumber, described as any lumber larger than a 2 by 4, and is evidenced by a rise in the center of the board over the two ends. Mr. Dusard placed two or three braces from the rafters down to the joists. In the ■“crawl area” they found that certain floor joists which had an upward crown when installed had become nearly level or straight. They concluded that there had been a downward motion to cause this condition, and to correct it they installed two piers in the “crawl area” under the partition between the living room and family room. Mr. Dusard also found three or four shrinkage cracks in the concrete blocks under the “crawl area” and he dug to the concrete footings to see whether the cracks were reflected there, and since they were not he concluded that the cause of the cracks was not settlement of the building. After the work in the attic and “crawl area” was completed, it was Mr. Dusard's opinion and he advised Mr. Kriegshauser that the “condition was remedied” and that the house was in perfect condition. Mr. Kriegshauser made no additional payment for this work. Mr. Dusard discussed with Mr. Kriegshauser the cause of the cracks in the partition wall but he did not go into detail. He did tell him that the cause of the cracks “might” have been a lumber shrinkage and movement. Mr. Kriegshauser said he was told that shrinkage of lumber “possibly” was the cause. These were the only cracks that the Kriegs-hausers saw in the house. After the repair work was completed by Mr. Dusard, the living room ceiling was replastered and painted. In January or February 1958 the crack in the partition between the reception room and living room reopened. Nothing further was done about it by the Kriegshausers, and this was the crack which Mr. Schnuck saw when he inspected the house. Mr. Herrmann testified that it was his opinion that the cracks he saw in 1958 in the reception area and one crack in the living room ceiling were “reopened” cracks, but there was insufficient identification to indicate that there were any “reopened” cracks other than those which Mr. Kriegshauser said had appeared in 1957 and had been repaired after the bracing work done by Mr. Dusard had been completed.

Apparently respondents made no complaint to appellant about the condition of the house, and the first notice that Mr. Kriegshauser had of the present contentions of respondents was the filing of this suit in February 1959.

Mr. Schnuck testified that he had paid $5,647.26 and incurred an obligation of $388.50 in correcting the defective foundation and making repairs. Mr. Herrmann estimated the cost of the additional piers he believed to be necessary to be $6,450. Mr. William Randall, who qualified as an expert real estate appraiser, testified that in his opinion the cause of cracks in the foundation walls, the plaster walls and ceilings which he observed in January 1961 was “a structural fault of the foundation and the bearing power of the soil upon which the foundation footing stands.” He further testified that if the house had been in good condition on May 1, 1958, and the cause of the crack which Mr. Schnuck had observed had been the use of green lumber, the value of the house would have been $69,000, the amount paid by respondents. But, he stated, that assuming that the house had undergone settlement and that extensive cracks had appeared in the walls and ceilings in the places testified to by Mr. Schnuck, and assuming that the cost of the past repairs and the estimated future work totaled $13,486.50, it was his opinion that the value of the house on May 1, 1958 was $47,013.50, or a difference of $22,986.50. In arriving at this figure he also took into consideration two items totaling $8,500, the first being “loss in marketability” in the amount of $6,500 because a buyer would “not pay as much for a house that has been patched up,” and the second being “estimated damages of continuous repairs that must be made in the future” in the amount of $2,000.

By respondents’ verdict directing instruction the jury was told that if it found that in viewing the Kriegshauser house plaintiffs noticed a crack in the wall of the entrance hall and inquired of Jane Sweeney “the cause of said crack, and whether there was any foundation condition causing the crack;” that “the cause of the crack was represented to the plaintiffs by defendant Lawrence A. Kriegs-hauser through Jane Sweeney” to be “from 'green’ lumber;” that prior to the time that plaintiffs viewed the house defendant Kriegshausers knew “that numerous cracks had developed in the house and that thereafter defendant Kriegshausers had braces and ties installed in the attic space and concrete piers and wooden posts installed in the crawl area space under the front portion of the house and had the cracks filled and painted over;” that the representation made to plaintiffs "that the crack was caused by 'green’ lumber was false and untrue and known by defendant Lawrence A. Kriegshauser to be false and untrue and was made willfully and maliciously and with the intent of deceiving plaintiffs and with the intent of having plaintiffs rely thereon;” that said representation was to a material part of the transaction and that plaintiffs had a right to and did rely on the truth of said representation and were ignorant of the falsity of said representation; that plaintiffs thereafter purchased the house for $69,000; and that as “a direct and proximate cause (sic) of the false representation” plaintiffs were damaged, then the verdict should be for plaintiffs.

Respondents’ measure of damages of instruction was that “ * * * if you find for plaintiffs on Count I (sic) you will assess their damages at such sum, if any, as represents the difference between the actual value of said property at the time it was conveyed to plaintiffs considering the condition of the property at that time and what its value would have been if defendant Lawrence A. Kriegshauser’s representation had been true, not to exceed $21,986.50.” This amount is the precise amount arrived at by Mr. Randall when he took into consideration that there was a “structural fault of the foundation” and that the house had undergone settlement, and when he considered the cost of remedying the foundation defect. The verdict of the jury was in favor of plaintiffs in the amount of $21,986.50.

With this statement of the evidence and respondents’ submission of their case to the jury, we should consider briefly the nature of an action for fraud. “Although caveat emptor is the general rule applied to the sale of land,” under certain circumstances a charge of fraud may be based on the vendor’s false statements and representations in the sale of land, where it appears that such statements and representations were statements or representations of material facts and not mere statements of- opinion, and were such that the purchaser not only was entitled to rely upon them, but did rely upon them to his injury. 55 Am.Jur. Vendor and Purchaser § 57. “The elements and essentials of an action for fraud are not in dispute. The rule is stated in 37 C.J.S. Fraud § 3, p. 215 as follows: ‘Comprehensively stated, the elements of actionable fraud consist of: (1) A representation. (2) Its falsity. (3) Its materiality. (4) The speaker’s knowledge of its falsity or ignorance of its truth. (5) His intent that it should be acted on by the person and in the manner reasonably contemplated. (6) The hearer’s ignorance of its falsity. (7) His reliance on its truth. (8) His right to rely thereon.’ ” Lowther v. Hays, Mo., 225 S.W.2d 708, 713. See also Bayer v. American Mutual Casualty Company, 359 S.W.2d 748, 752; John T. Brown, Inc. v. Weber Implement & Automobile Co., Mo., 260 S.W.2d 751, 755; Lammers v. Greulich, Mo., 262 S.W.2d 861, 864

The crux of this case from respondents’ position, as indicated by their pleadings and evidence, is that at the time they purchased the house, unknown to them but known to appellant, it had a foundation problem in that the foundation was settling irregularly, and that appellant fraudulently represented to respondents that such condition did not exist. The existence of the crack in the interior partition wall which Mr. Schnuck observed when he inspected the house, the fact that the crack had previously appeared and repair work had been done, and the fact, according to respondents’ contention, that appellant knowingly misrepresented the cause of the crack to have been green lumber, all constituted evidence in support of their theory of the case that a foundation problem known to appellant did in fact exist and that he falsely represented to respondent that it did not. However, the case was not submitted to the jury on this theory. Instead the case was submitted on the theory of a false representation that the crack in the interior wall was caused by the use of green lumber, and upon such finding the jury was directed to return a verdict for respondents without being required to ascertain the actual cause. The jury was not required to find that a foundation problem did in fact exist, or that Mr. Kriegshauser knew of the existence of a foundation problem, or that he falsely represented that no foundation problem existed. It would appear from the verdict directing instruction that respondents abandoned their evidence based upon the theory that there was a fraudulent representation concerning the condition of the foundation. The instruction isolated the evidentiary fact as to the cause of a crack in the interior partition wall, and the jury was instructed that if it found that Mr. Kriegshauser falsely represented the cause to have been the use of green lumber, regardless of the actual cause and without the jury determining that the cause was a defective foundation, the verdict should be for respondents. Then by reason of the measure of damages instruction the jury was authorized to, and in fact did, award damages based on the loss to respondents by reason of a defective foundation. The verdict directing instruction proceeded upon one theory, and the measure of damages instruction proceeded upon another. However, on this appeal appellant does not directly challenge the submission of the case for the reasons above indicated. Instead, he apparently accepts the theory of respondents’ verdict directing instruction, except for a minor challenge in which there is no merit, and bases his attack against the instruction on the ground that there was no evidence that the submitted representation concerning the cause of the crack was false or that he knew it was false. Under these circumstances we must rule the case on the issues presented by the parties.

The evidence supports a finding that Mr. Kriegshauser represented that the cause of the crack was the use of green lumber and that such representation was false. However, there is no direct evidence that at the time Mr. Kriegshauser knew that the representation was false or that he was ignorant of its truthfulness. Such direct evidence as there is on this issue is to the effect that he believed that the crack in the interior wall was the result of lumber shrinkage, which Mr. Schnuck agreed that as far as he was concerned meant the same as the use of green lumber. Respondents contend, and correctly so, that fraud, or any element of fraud, may be established by the proof of facts and circumstances from which fraud, or an element thereof, may be inferred. Glaze v. Glaze, Mo.App., 311 S.W.2d 575; Burch v. Schmelig, Mo.App., 300 S.W.2d 838. They admit, in effect, that proof of some of the necessary elements of fraud in this case must rest on circumstantial evidence, and they assert that fraud may reasonably be inferred from the following: (1) “That the engineering procedure of placing concrete and wooden piers in the crawl space of the house by defendant’s architect, Dusard, was to overcome settling of the house;” (2) “That no man takes such a cavalier attitude toward the expenses of correcting faults in the construction of a house, that he does not learn the cause of the condition, when it requires piering, attic bracing, and patching to hide the results;” and (3) “That defendant did know the cause of his problem ; and knew it was not ‘green lumber.’ ” We cannot agree with respondents’ contention. The first statement pertains to the issue of the existence of a foundation problem which was not included in the submission to the jury, and the third statement assumes that the issue sought to be inferred was as respondents contend. As to the second statement, the only evidence is that Mr. Kriegshauser paid nothing additional for the repairs to the house except for the plastering and painting, and there is no evidence that at the time of the representation he knew the details of the work done by Mr. Dusard. He only knew, according to the evidence, that without additional cost to him Mr. Dusard had caused certain bracing to be done to remedy a crack in an interior wall which, according to Mr. Dusard, might have been caused by lumber shrinkage and movement. We find no evidence from which it could be inferred that at the time of the representation concerning the cause of the crack appellant knew of a foundation problem, but that really is immaterial because the existence of a foundation problem and a representation concerning it were not issues in the submission to the jury. The question, under the submission, is whether there was evidence from which the jury could find that appellant represented the cause of the crack to have been the use of green lumber when he knew that it was not, and we conclude that there was not such evidence.

Fraud is never presumed but must be established by evidence. Hardwicke v. Hamilton, 121 Mo. 465, 26 S.W. 342; Lowther v. Hays, supra, 225 S.W.2d at p. 713. The difficulty of proving fraud does not dispense with the necessity of making the minimum required proof, Ray County Savings Bank v. Hutton, 224 Mo. 42, 123 S.W. 47; Bayer v. American Mutual Casualty Company, supra, 359 S.W.2d at p. 752, and “ ‘the burden of proof rests upon him who asserts it to make it manifest.’ ” Lowther v. Hays, supra,, 225 S.W.2d at p. 713. Knowledge of the falsity of the representation was as essential to respondents’ proof of fraud as-any of the other elements, and proof of “each of these elements is essential to a submissible case, and conversely, failure-to prove any one of them is fatal to a recovery.” Meriwether v. Lumbard, Mo.App., 246 S.W.2d 363; John T. Brown, Inc. v. Weber Implement & Automobile Co., Mo., 260 S.W.2d 751, 755. This case comes clearly within the rule stated in Powers v. Shore, Mo., 248 S.W.2d 1, 6, that “Facts and circumstances which lead' only to a suspicion of fraud or facts- and circumstances as consistent with honesty and good faith as with fraud are-insufficient to make out a case for the jury.”

The judgment in this case must be reversed, but in the event of a new trial if respondents are of the opinion that they have been damaged because of a fraudulent representation concerning the condition of the foundation of the house, they must submit such an issue, supported by the evidence, to the jury and have the jury find that appellant fraudulently represented to them that there was no foundation problem when in fact there was and such fact was known to appellant. If they desire to limit their case based on fraud to a false representation concerning the cause of a crack in an interior wall, then their measure of damages instruction should likewise be so limited, and it should not authorize the recovery of damages for a false representation concerning the condition of the foundation of the house.

The judgment is reversed and the cause remanded.

BARRETT, C, concurs.

PRITCHARD, C., not sitting.

PER CURIAM.

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

All of the Judges Concur.